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Powder River Basin Resource Council v. Wyoming Dep't of Envtl. Quality

ELR Citation: 40 ELR 20075
Nos. No. S-09-0037, (Wyo., 03/05/2010)

A district court denied the United States’ motion to dismiss a complaint, brought pursuant to the Federal Tort Claims Act (FTCA), in which plaintiff alleged that exposure to contaminants in the water supply at Camp Lejeune caused her to develop non-Hodgkin’s lymphoma. Plaintiff, who had lived at the base with her husband, was diagnosed 20 years after living there. She filed an administrative complaint four years after the diagnosis. In support of its motion to dismiss, the United States asserted that (1) plaintiff failed to file a claim within the FTCA’s statute of limitations (SOL); and (2) any acts or omissions with regard to environmental contamination at Camp Lejeune fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity. The court disagreed. In regards to the SOL, plaintiff did not know of the alleged contamination at Camp Lejeune and, in an exercise of reasonable diligence, should not have known of the alleged contamination. Her complaint was therefore timely filed. In regards to the discretionary function exception, during at least part of plaintiff’s residence at Camp Lejeune, the United States had notice of the presence and toxicity of the chemicals at issue in the base’s water supply. And, specific instructions were in place regarding the types of chemicals that plaintiff alleges were responsible for her injuries. Thus, because conduct with respect to such contamination was not the subject of discretion susceptible to policy analysis, the conduct alleged in plaintiff’s complaint does not fall within the discretionary function exception to the FTCA’s waiver of sovereign immunity.