The Federal Tort Claims Act permits claims for monetary damages against the United States for injury or loss of property caused by the wrongful acts of federal employees. See 28 U.S.C. § 1346(b)(1). However, this waiver of sovereign immunity is limited by the discretionary function exception, which preserves immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). Recently, the United States Court of Appeals for the Ninth Circuit analyzed the discretionary function exception in the context of environmental contamination, finding that the exception does not apply to what can best be described as ordinary negligence in the performance of a site remediation. Nanouk v. United States, No. 13-35116 (Sept. 4, 2020).

The plaintiff in Nanouk had an allotment of 160 acres of land in Alaska near the North River Radio Relay Station, a cold-war era Air Force communications facility. The Station, which had been operated by government contractors, was closed in 1978. In 1981 it was determined that the facility, like many similar Stations, was contaminated by PCBs. Some minimal removal efforts were undertaken in the 1980s, however as the Air Force ranked other contaminated sites as presenting a greater risk of harm more thorough clean-up efforts were delayed. In the 1990s, remediation was resumed but was slow moving, with two contractors going out of business without completing the work.

In 2003, the plaintiff notified the federal government of strong odors on a trail that plaintiff used to access the cabin on her property. After an investigation, a “hot spot” of PCBs was identified on the trail. Further, as a result of the trail’s usage by plaintiff and her family, the area around her cabin was also found to be contaminated. By 2005, the contamination on plaintiff’s property had been remediated to safe levels. Nevertheless, plaintiff sued the federal government in 2015 for trespass and negligence. In her complaint, she contended that the Air Force had not properly overseen the contractors who operated the Station, failed to remediate the contamination at the time of abandonment and through the 1980s, and conducted an inefficient and insufficient clean-up in the 1990s.

After the close of discovery, the United States moved to dismiss the plaintiff’s complaint on the basis that the claims were barred by the discretionary function exception. The District Court agreed, dismissing the action. On appeal, the Ninth Circuit affirmed only in part, and reinstated plaintiff’s action. Using a two-step analysis that looked first at whether the act complained of involved an actual decision or judgment and if so whether that decision was policy-based, the Court held that the exception applied to the government’s decisions to have only lightly-supervised contractors operate the Station, to allow the Station to be abandoned with barrels of PCBs still present, and to focus efforts in the 1980s on clean-ups at more significant locations, because all involved a weighing of competing government interests for limited available resources. However, as for the failure to discover and remediate the hot spot on the trail in the 1990s, the Court held that no policy consideration influenced the government's lack of attention to the Station; on the contrary, the federal government failed to effectuate the policy decision it had already made to remediate the facility. As a result, the Ninth Circuit reversed the District Court’s dismissal of the action to allow plaintiff to proceed with regard to claims based upon the allegedly negligent clean-up.

This case is a good example of the application of the discretionary function exception to claims against the federal government stemming from site contamination. A well-pleaded complaint should avoid being premised on decisions that could be characterized as policy-based and instead focus on action or inaction that occurs without intent and not as the result of a weighing of competing interests.