WALLACE E. MECHLER and CHRIS MECHLER, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
ERIC F. MELGREN UNITED STATES DISTRICT JUDGE
Plaintiffs Wallace and Chris Mechler filed suit against the Government for damages caused by the leeching of hazardous chemicals from a former Air Force base onto Plaintiffs’ property. The Government filed a Motion to Dismiss (Doc. 7) for lack of subject matter jurisdiction, arguing that Plaintiffs’ suit is barred by the two-year statute of limitations found in the Federal Tort Claims Act and/or Kansas’s ten-year statute of repose. The Court finds that a reasonable plaintiff would not have discovered the contamination on Plaintiffs’ property more than two years before Plaintiffs filed suit, and that the Comprehensive Environmental Response, Liability, and Compensation Act preempts state statutes of repose. The Court therefore denies the Government’s motion to dismiss for lack of subject matter jurisdiction.
I. Factual and Procedural Background
Plaintiffs Wallace E. Mechler (“Wally”) and Chris Mechler, husband and wife, own title to a residence and 52 acres of real estate in Berrytown, Kansas. The Government, through the United States Department of the Air Force, operated the Forbes Air Force Base across the road from Plaintiffs’ property until 1973. While the base was operational, the east side of Forbes Field consisted of two landfills that accepted waste generated at the base. The North Landfill was adjacent to property owned by Plaintiffs’ and Wallace Mechler, Sr. (“Mechler Sr.”).
In 1994, the U.S. Army Corps of Engineers began an environmental investigation of the former base. The investigation included a series of groundwater samplings of monitoring wells installed near the landfills. Water samples taken in October 1999 and January 2000 from a monitoring well located between the northern landfill and Mechler Sr.’s property detected vinyl chloride concentrations that exceeded regulatory limits for safe drinking water. In September 2000, the Kansas Department of Health and Environment and the Corps collected more samples from other wells, including the wells that provide water to Plaintiffs’ home and Mechler Sr.’s home. That sampling showed that the water on Plaintiffs’ land was within the regulatory limits, but the water at Mechler Sr.’s home exceeded the limit for vinyl chloride.
After receiving the results, the KDHE notified the Corps and Mechler Sr. about the vinyl chloride contamination. On September 26, 2000, the Corps met with Mechler Sr. and Plaintiff Wally Mechler. The Corps discussed the results and informed Wally of its belief that the contaminants had leeched from the landfill to the groundwater and into Mechler Sr.’s well. Wally informed the Corps that he would take an active role in monitoring the Corps’ activity at his father’s property to be sure the pollution did not migrate to Plaintiffs’ property.
To ensure that Plaintiffs and Mechler Sr. had clean drinking water, the Corps installed whole-house granular activated carbon (“GAC”) units in both homes. After the GAC units were installed, the Corps began testing Plaintiffs’ and Mechler Sr.’s drinking water. The water collected from Plaintiffs’ property comes from a collection cistern after running through a high-pressure hydrant. The Corps tested both pretreated water and GAC-treated water from Plaintiffs’ and Mechler Sr.’s property. The tests showed that Plaintiffs’ water was potable and uncontaminated, but that Mechler Sr.’s untreated well water contained vinyl chloride at a level in excess of the regulatory limits. On one occasion, Plaintiff Wally expressed to the Corps a belief that the contamination had ruined the value of Mechler Sr.’s property, and that the Corps should reimburse that loss. But Mechler Sr., who has since passed away, was not interested in pursuing protracted litigation with the government due to his age.
In August 2005, the parties looked into whether Plaintiffs and Mechler Sr. could be connected to water lines from the City of Topeka. The Corps offered to cover the expense of the connection, but not the cost of the city water. Additionally, the City of Topeka required Plaintiffs and Mechler Sr. to annex their property to the city, thereby subjecting them to city taxes and ordinances. Plaintiffs and Mechler Sr. therefore declined the Corps offer to connect them to the city water lines.
In the years following the discovery of contamination on Mechler Sr.’s property, the Corps installed seventeen additional groundwater monitoring wells on and around the landfill, Plaintiffs’ property, and Mechler Sr.’s property. Plaintiffs received copies of the results of the testing, and were told that they would be notified if contamination ever reached their property. The results Plaintiffs received identified the wells with codes and provided only vague descriptions of their location. Plaintiffs believed that wells located on Mechler Sr.’s property contained the label “MSR” for “Mechler Sr., ” while Plaintiffs’ cistern was labeled “PVW-MJR.”
On April 3, 2009, the Corps sent Plaintiffs a letter with the results of testing performed on samples collected in October 2008 and March 2009. The letter began by identifying the wells’ codes. Only two of the five listed wells did not specify whether they were located on Plaintiffs’ property or Mechler Sr.’s: (1) MSR-03, which was identified as an upgrade from Plaintiffs’ PVW-MJR cistern, and (2) OW-20, which was identified as the “[n]ewly installed monitoring well east of barn in the field.” Plaintiffs believed that wells 19 and 20 were located on Mechler Sr.’s front yard-a belief affirmed when the Corps renamed OW-20 as OW-MSR-05. In fact, according to a diagram that was not previously provided to Plaintiffs, well OW-MSR-05 is on Plaintiffs’ property.
The April 2009 results showed that samples from well OW-20 (now OW-MSR-05) contained trichloroethene and vinyl chloride at levels exceeding regulatory limits. Plaintiffs believed the contaminated well was on Mechler Sr.’s property, and the results contained no explanations to the contrary. Plaintiff Wally spoke with the Corps twice by telephone on May 28, 2009, and was told that the water at well OW-MSR-05 was contaminated. Still assuming that the OW-MSR-05 well was located on his father’s property, Plaintiff Wally believed the contamination had ruined the value of his parents’ property.
In July 2009, the Corps again tested water samples from OW-MSR-05, again finding vinyl choride and trichloroethene above regulatory levels. The Corps sent these results to Plaintiffs on September 1, 2009. The Corps then installed more wells on Plaintiffs’ property to understand and monitor the contamination. Later tests of one of these wells, OW-MSR-09, and further testing of OW-MSR-05 confirmed the earlier contamination found on Plaintiffs’ property. The results of these tests were sent to Plaintiffs in a letter dated June 20, 2010. Plaintiffs contend that this was the first time they were told that new wells installed on their property had been sampled. From these results, Plaintiffs discerned that the contamination had spread to their property. The parties agree that the Corps has never detected contamination above regulatory limits in the cistern that supplies Plaintiffs with drinking water.
Plaintiffs filed an administrative claim with the Department of the Air Force on September 20, 2011. The Air Force failed to dispose of the claim within six months after it was filed, permitting Plaintiffs to file suit in federal court under the Federal Tort Claims Act. The Government now moves to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds that Plaintiffs’ suit is barred by the FTCA’s two-year statute of limitations and/or Kansas’s ten-year statute of repose.
II. Legal Standards
A. Nature of the Government’s ...