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Horton v. United States

United States District Court, D. South Carolina, Columbia Division

June 19, 2014

TONY HORTON, KISHA HORTON, Individually and as Guardians ad litem for T.H., a minor, Plaintiffs,


CAMERON McGOWAN CURRIE, Senior District Judge.

This matter is before the court on motion of Defendant, the United States of America ("Government"), to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). ECF No. 52. For reasons set forth below, the court grants the Government's motion and dismisses this action for lack of subject matter jurisdiction.


This environmental tort action, brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยงยง 1346(b), 2671-80, seeks recovery for injuries resulting from contamination of the groundwater under Plaintiff's property near Shaw Air Force Base ("Shaw AFB") in Sumter, South Carolina. ECF No. 1 (Complaint).

Shaw AFB is a military air base near Sumter, South Carolina that is operated by the United States Air Force. In 1941, construction began at the base, which was originally named Shaw Field. In 1948, Shaw Field was redesignated Shaw AFB. Since 1941, Shaw AFB has actively supported the military's missions in conflicts and crises, including World War II, the Korean War, the Cuban Missile Crisis, the Vietnam War, the Persian Gulf War, and the Iraq War. Like many military installations, Shaw AFB's waste disposal practices have caused environmental contamination, including groundwater contamination of wells located off base. For example, in 1989, the State of South Carolina discovered some off-base wells were contaminated with trichloroethylene ("TCE"), which is "a toxic organic solvent, known to be used by the military as a degreasing agent." Perchloroethylene ("PCE") has also been discovered in certain groundwater off base.[1]

In 1975, the United States Department of Defense developed a nationwide Installation Restoration Program ("IRP") to investigate and remediate environmental contamination on or near military installations. In the 1980's, the Department of Defense began investigating and remediating contamination at Shaw AFB under the IRP. In the late 1970's and 1980's, Congress enacted environmental legislation including the Safe Drinking Water Act ("SDWA"); the Clean Water Act ("CWA"); the Comprehensive Response, Compensation and Liability Act ("CERCLA"); the Superfund Amendments and Reauthorization Act ("SARA"); and the Resource Conservation and Recovery Act ("RCRA"). Regulations implementing those statutes addressed TCE and PCE: TCE and PCE were regulated as toxic pollutants pursuant to the Clean Water Act in 1978, as hazardous wastes under RCRA in 1980, and as drinking water contaminants under the Safe Drinking Water Act in 1989 (TCE) and in 1992 (PCE).

By letter dated November 24, 2009, the Air Force notified Plaintiffs Tony and Kisha Horton ("the Hortons"), who lived off-base near Shaw AFB from 2006 to 2012, that "testing has revealed the presence of the chemical trichloroethylene (TCE) [and/or perchloroethylene (PCE)] in the groundwater underlying your property." ECF No. 52-15 at 2. On April 9, 2013, the Hortons filed this action alleging seven causes of action: (1) negligence, (2) gross negligence, (3) willful misconduct, (4) negligent failure to warn, (5) negligence per se, (6) private nuisance, and (7) trespass.[2] Their claims relate to Shaw AFB's use, disposal, or remediation of TCE or PCE; maintenance or monitoring of water systems; and public notification of contamination.

On June 21, 2013, the Government filed a motion to dismiss for lack of subject matter jurisdiction based on the discretionary function exception to the Government's waiver of sovereign immunity under the FTCA. ECF No. 7. After the court granted multiple requests for extensions of time to respond to the Government's motion to dismiss, the Hortons filed a response to the motion to dismiss on September 26, 2013, as well as a motion for jurisdictional discovery and a motion for leave to file an amended complaint. ECF No. 27. The Hortons contended they needed discovery to respond to the Government's motion to dismiss, in light of the Government's argument that the discretionary function exception applied. Despite significant shortcomings with the Hortons' request for jurisdictional discovery, the court allowed the Hortons to take one deposition pursuant to Rule 30(b)(6) by January 30, 2014, and limited the deposition to the following subject matters:

1. Confirming that the Government's informal production resulted in disclosure of all available documentation relating to policies, procedures, bans, or base orders known to have addressed use, disposal, or containment/clean up of TCE, PCE, or other products which may contain, break down into, or otherwise cause TCE and PCE contamination;
2. Determining what information is known and by whom regarding any policies, procedures, bans or base orders on these subjects whether or not documentary evidence is or is not available; and
3. Determining what information or knowledge, if any, exists that any such policies, procedures, bans or base orders were subsequently violated by federal employees.

ECF No. 39 at 11-12. The court also provided additional procedures should that deposition reveal further information likely to exist relevant to whether the discretionary function exception applies. Id. at 12.[3] After the Rule 30(b)(6) deposition, the parties filed a status report on March 6, 2014, explaining that additional discovery was necessary in light of information revealed during the deposition. ECF No. 47. Also on March 6, 2014, the Government withdrew its motion to dismiss without prejudice to be refiled "at the conclusion of jurisdictional discovery." ECF No. 50.

On April 17, 2014, the Government filed the instant motion to dismiss for lack of jurisdiction. ECF No. 52. The Hortons filed a response on May 5, 2014 (ECF No. 54), to which the ...

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