Waverley View Investors, LLC v. United States, 79 F. Supp. 3d 563

Waverley sues the United States under the FTCA for negligence, trespass, and private nuisance arising from groundwater contamination at Fort Detrick due to Army waste disposal and remediation practices.
Area B-ll pits (1955–1970) buried TCE and PCE in unlined pits near Waverley’s land; disposal was part of Army waste management during its Fort Detrick operations.
Contamination later identified; Army conducted monitoring and remediation efforts over decades, including a 2001–2004 interim removal action at Area B-ll.
CERCLA/SARA and DERP codified discretionary functions governing federal responses to environmental hazards, generally shielding the government from FTCA liability for such actions.
EPA placed Fort Detrick’s Area B on the National Priorities List in 2009, shaping lead responsibility for remediation and continuing Army involvement; Waverley bought adjacent land in 2012 and discovered in 2014 groundwater contamination above federal maximums.
Waverley seeks approximately $37.2 million in compensatory damages, but the court granted the United States’ motion to dismiss for lack of subject matter jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Army disposal decisions at Area B-11 were discretionary and bound by mandatory directives.	Waverley argues the Army had no discretion due to mandatory directives.	Waverley retained discretion; no directive prescribed a specific method.	DFE applies; Army discretionary in waste disposal decisions.
Whether the disposal decisions were susceptible to policy analysis.	Disposal decisions were mundane landowner-like decisions not balancing policy.	Disposal decisions involved policy considerations (environment, safety, national security).	Yes; decisions susceptible to policy analysis, triggering DFE.
Whether the remediation decisions were outside the DFE because of safety or scientific judgment.	Remediation could be viewed as technical/scientific, not policy-driven.	Remediation involves balancing safety, environmental impact, resources, and policy.	Remediation decisions were discretionary and policy-grounded; DFE applies.

Aragon v. United States, 146 F.3d 819 (10th Cir.1998) (military waste disposal involved policy choices)
Daigle v. Shell Oil, 972 F.2d 1527 (10th Cir.1992) (toxic waste cleanup involved policy choices)
Lockett v. United States, 938 F.2d 630 (6th Cir.1991) (EPA remediation decisions involved policy balancing)
OSl, Inc. v. United States, 285 F.3d 947 (11th Cir.2002) (military environmental decisions balance safety and policy)
Snyder v. United States, 504 F.Supp.2d 136 (S.D. Miss.2007) (Camp Lejeune contamination—remediation influenced by policy analysis)
Jones v. United States, 691 F.Supp.2d 639 (E.D.N.C.2010) (Camp Lejeune-style regulatory specifics affecting discretion)