The U.S. Navy failed to adhere to its own clean-up protocol in removing toxic heavy metal to a landfill near an elementary school during the clean-up of Camp Pendleton, a federal appeals court held Friday.
A mother sued the Navy for allegedly sickening her daughter by dumping contaminated soil into a landfill just 50 feet from her backyard and near the child’s school, the 9th U.S. Circuit Court of Appeals stated.
The appeals court reinstated the injury claims by the mother, identified only as C. Myers. The court said the Navy’s failure to have the contractor’s health and safety plan reviewed by the Navy’s own certified industrial hygienist and the failure of the Navy’s quality assurance officer to inspect air monitoring were not policy decisions that shield them from a lawsuit.
Camp Pendleton was placed on a National Priorities List for environmental clean-up in 1989 by the federal government. Five areas of the camp were contaminated with wastes that had been burned and contained high levels of thallium, considered a risk to human health.
In addition, other sites on the camp contained arsenic, manganese, zinc and copper in high concentrations. The Navy’s plan to clean up the sites called for excavation of soil and transport by dump truck to a land fill that was adjacent to a housing area and elementary school.
In 1999, the clean-up included moving 240,000 cubic yards of contaminated soil and moving it to the landfill. Residents of the family housing area testified that many times dust clouds blew from the landfill during that period.
Myers’ child often played in the backyard just 50 feet from the landfill and only 200 feet from an elementary school. He child suffered gastrointestinal distress, nerve damage, cognitive deficits and loss of body hair, all known side-effects of thallium exposure, according to the court.
The appeals court overturned the trial judge’s decision that the Navy acted “reasonably” and sent the case back to the same judge to consider the injury claims.
Case: Myers v. United States, No. 09-56092