Re: REESE AIR FORCE BASE

[Lenny Siegel <lsiegel@igc.org>]

(I haven't yet had a chance to read the the judge's legal opinion on the 
Reese Air Force Base case (below), but the person who sent it says it 
tells a different story than the Texas Observer article that I recently 
summarized. LS)

WARNING: THIS IS A LONG FILE

WESTERN GREENHOUSES, a Texas General Partnership, BILLY J.
CAGLE and wife, SHEILA J. CAGLE, NORMAN W. ALLEN and wife,
KELLY D. ALLEN, and WESTERN GREENHOUSES, INC., Plaintiffs,
v. UNITED STATES OF AMERICA, Defendant.

WESTERN GREENHOUSES v. UNITED STATES

Civil Action No. 5:94-CV-059-C

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS, LUBBOCK DIVISION

878 F. Supp. 917; 1995 U.S. Dist. LEXIS 3490; 25 ELR 21085

February 24, 1995, Decided
February 24, 1995, FILED, ENTERED

COUNSEL: [**1] Attorney(s) for Plaintiff or Petitioner:
Mark T. Mitchell and Stephen Charles Dickman, Clark, Thomas &
Winters, Austin, TX, and William Everett, Seymore, Darnell &
Seymore, Lubbock, TX.

Attorney(s) for Defendant or Respondent: Adam Bain, Timothy
B. Walthall, and S. Michael Scadron, U.S. Department of
Justice, Civil Division, Washington, DC.

JUDGES: SAM R. CUMMINGS, United States District Judge

OPINIONBY: SAM R. CUMMINGS

OPINION: [*920] MEMORANDUM OPINION

 The above-styled and -numbered cause was tried to the Court.
After hearing the testimony and reviewing the exhibits admitted
into evidence, the Court files this Memorandum Opinion in support
of the judgment to be entered in this case.

 The Nature of the Case

 Western Greenhouses, a Texas General Partnership, Billy J.
Cagle, Sheila J. Cagle, Norman W. Allen, Kelly D. Allen, and
Western Greenhouses, Inc. (collectively "plaintiffs") brought
this action against the United States under the Federal Tort
Claims Act (FTCA), 28 U.S.C. @@ 1346(b), 2671-80. Plaintiffs
are four individuals and two of their business entities. One of
the business entities, Western Greenhouses, Inc. ("Western
Greenhouses") operated a commercial greenhouse on property [**2]
adjacent to Reese Air Force Base in Lubbock County, Texas. The
other business, Western Greenhouses, general partnership,
purchased the property on which the greenhouses are situated in
July 1990.

 Plaintiffs seek to recover damages for business loss and
property damages from groundwater contamination allegedly caused
by activities of United States employees at Reese Air Force Base.

 Reese Air Force Base

 Reese Air Force Base is presently one of seven Undergraduate
Pilot Training (UPT) bases in the Air Training Command of the
United States Air Force. Reese has been a training base almost
continually since 1941. Reese opened in June 1941 as Lubbock Army
[*921] Airfield on 2,000 acres donated by the City of Lubbock.
The base was completed by the end of 1941 and training of
aviation cadets began in early 1942. The Airfield operated during
World War II, turning out bomber, fighter and transport pilots.
In 1945 the Airfield was converted to a housing facility for
veterans and their families. In 1949, the Airfield was renamed
Reese Air Force Base and reactivated for pilot training. Since
that time, Reese has trained pilots for the Korean War, the
Vietnam War, the Persian Gulf War, and other [**3] military
operations. Over the years, more than 25,000 pilots have
graduated from Reese's training program. According to the
Air Force, the mission of Reese Air Force Base is "to train top
quality military pilots with the greatest efficiency and minimum
possible cost."

 The Environmental Investigation At Reese Air Force Base And
The Detection of Trichloroethylen. In The Groundwater

 In 1983, the Air Force began an environmental assessment of
Reese Air Force Base through the Department of Defense (DOD)
Installation Restoration Program (IRP). The DOD policy underlying
the IRP is to identify and fully evaluate suspected problems
associated with past hazardous waste management practices
and to control hazards to health and welfare that resulted from
those past practices. Since the DOD policy was first implemented,
there has been an IRP investigation at virtually every Air Force
base. The IRP was initiated at Reese prior to any regulatory
requirements that the base investigate past hazardous waste
management practices.

 The DOD designed the IRP as a series of incremental steps for
environmental investigation and remediation. If the first step of
the process--which included a review [**4] of base records and
witness interviews--identified a potential environmental problem,
then further study, including field testing and analysis,
may be warranted. If the investigation confirmed an environmental
problem, then the Air Force considered actions to remediate the
problem.

 During every step of the IRP process, the Air Force must
balance social, economic and political policy considerations. The
Air Force has a limited budget to address environmental
contamination at its bases. Consequently, the Air Force must
assess the severity of environmental contamination at each base
and allocate its limited funds accordingly. Each decision in the
IRP process at Reese, including decisions regarding the type of
monitoring well system to use to investigate groundwater
contamination, the manner of investigating potential off-base
contamination, the manner of remediating contaminated areas on
base, and the types of public disclosures to make about the
investigation, involved balancing social and economic policy
considerations within the strictures of the Air Force's
environmental budget.

 There were no specific and mandatory statutes or regulations
which controlled the Air Force's investigation [**5] and
remediation of contamination under the IRP or its decisions
regarding public notification of information obtained
through the program.

 In 1984, the Air Force completed the initial phase of the IRP
and identified several areas at the base which warranted further
study, including Industrial Lake and Sewage Lake. Pursuant to the
IRP, the Air Force decided to monitorthe groundwater in these
areas to determine whether contaminants were entering the
groundwater from the playas. Throughout the IRP, the Air Force
kept regulatory agencies informed of IRP activities, and the Air
Force often submitted proposed IRP investigation plans to state
and federal environmental regulatory agencies for review and
comment.

 Concurrent with the ongoing IRP investigation at Reese, the
Air Force was corresponding with state and federal regulatory
agencies to determine the regulatory status of Industrial Lake
and Sewage Lake under the Resource Conservation and Recovery Act
(RCRA). During the early 1980s, the State of Texas had found
Reese to be in compliance with the provisions of RCRA.
Subsequently, however, a question arose regarding whether the
playa lakes were "surface impoundments" subject to RCRA [**6]
regulation. The Air Force asked the state regulatory agencies for
guidance regarding the regulation of the lakes, but the responses
of the state were [*922] inconsistent. First, in 1985, the
Texas Water Commission (TWC) issued a permit to Reese Air Force
Base for disposal of waste into the lakes, and, pursuant to the
permit, the Texas Department of Health found Reese to be in
general compliance with its hazardous waste regulations. However,
in 1986, the state decided to take a different position,
and it concluded that the playa lakes should be regulated under
RCRA as surface impoundments. Subsequently, the Air Force
attempted to comply with the RCRA requirements.

 In 1987, the Air Force tested water supply wells at the base.
The Air Force initially tested these wells to obtain "background
samples" to help it determine whether Sewage Lake or Industrial
Lake was contaminating the environment. Pursuant to the Reese
sampling protocol under the IRP, the Air Force tested for many
specific chemicals including trichloroethylene (TCE). These
background samples detected small quantities of TCE in two Air
Force water supply wells.

 Shortly after discovery of TCE contamination in water supply
wells at [**7] Reese Air Force Base, the Air Force called a
meeting with federal, state and local officials to discuss the
situation. The regulatory officials at the meeting were not
particularly concerned about the TCE discovery given the low
levels detected. Subsequently, however, the Texas Water
Commission (TWC) agreed to assist the Air Force in testing
private wells off base to determine whether any chemical
contamination was migrating past base boundaries. The TWC
assumed responsibility for public notification and represented
that it would wait for retesting and for a wider sampling effort
before it made any report to the State Emergency Response
Committee for purposes of public notification. During early
1988, the Air Force and the TWC tested five off base wells,
including one well at property now owned by plaintiffs. The tests
detected a minute concentration of TCE (1.1 part per billion) in
one off-base well which was owned by a barber shop. This
concentration of TCE was well below the EPA's maximum
contamination level for TCE of 5 parts per billion. Subsequently,
after additional sampling was done, the Texas Water Commission
notified the Emergency Response Committee which ultimately
notified [**8] local officials pursuant to state law.

 In early 1988, the Air Force decided to add a large area in
the central portion of the base to the Air Force IRP
investigation effort in order to determine the source of the TCE
contamination detected in the base water supply wells. This area
was named the "Tower Area." The Air Force installed many
monitoring wells in the Tower Area to try to pinpoint the source
of the TCE contamination. The Air Force also continued to test
wells outside the boundary of Reese Air Force Base to determine
whether any significant contamination was migrating past base
boundaries. In early 1993, as part of this testing, the Air
Force detected small concentrations of TCE contamination in wells
on plaintiffs' property and other off-base properties. The Air
Force immediately provided bottled water to the affected
properties.

 In early 1992, even before the Air Force ever detected any
contamination on plaintiffs' property, the Air Force connected
plaintiffs' residences to a public water supply system through
Reese Air Force Base. The Air Force took this precautionary
measure because plaintiffs' residential wells were located in
close proximity to base monitoring wells [**9] which showed
TCE contamination. (Tests of wells on plaintiffs' property showed
no TCE contamination up to this point in time.) In 1993, after
the Air Force detected TCE contamination in wells supplying water
to plaintiffs' greenhouses, the Air Force installed a filtration
system for these wells. This filtration system ultimately
effectively removed TCE from the water supply for plaintiffs'
greenhouses.

 In 1994, Air Force agreed to a consent order with the EPA
regarding the off-base TCE contamination. Under the terms of the
agreement, the Air Force must provide water that meets safe
drinking water standards to any private well owner with TCE
contamination. The Air Force has been committed to providing
plaintiffs with a clean, safe and adequate water supply. While
the Air Force could not guarantee that it would provide
plaintiffs' residence with a cost-free public [*923] water
supply indefinitely, the Air Force did assure plaintiffs that
the water for their homes and business would always meet safe
drinking water standards.

 The Historic Use Of Trichloroethylene At Reese Air Force Base

 To maintain the aircraft at Reese Air Force Base, Air Force
employees used various solvents to clean [**10] engine parts.
One of the solvents that the Air Force used was TCE. TCE was a
very effective degreaser, and the Air Force used it for several
years. Gradually, the Air Force replaced TCE with less toxic
degreasers including trichloroethane (TCA). There has been very
little TCE use at Reese during at least the last fifteen years.
Shop files which date back to the late 1970s mention TCE use in
only one shop. The files show that the Air Force only used a
small amount of TCE (16 ounces per day) in the NDI Shop in
Building 89A during 1981 and 1982. Waste TCE from this operation
was containerized in fifty-five gallon drums for disposal. There
is no reference to TCE in any of the other shop files.
Additionally, Air Force surveys of the Reese maintenance shops in
1984, 1988 and 1991 did not reference any current TCE use in the
maintenance shops.

 Shops that probably used TCE at Reese Air Force Base were
located adjacent to Reese's flight line. The drains for these
shops were connected to an underground storm sewer which led to
Industrial Lake situated in the southeastern part of the Base.

 The waste management practices at Reese Air Force Base were
consistent with those employed at other military [**11]
installations--and by industry in general--during the 1940s
through the 1970s. If waste TCE was disposed into the
industrial drain line during this period, the practice would have
been consistent with waste disposal practices throughout the
military and industry. The use of clay sewers to receive solvents
was also consistent with standard practice at that time. Waste
management practices did not begin to change until the passage of
environmental statutes such as RCRA, Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) and
implementing regulations in the late 1970s and 1980s.

 The Industrial Drain Line At Reese Air Force Base

 After the discovery of TCE contamination in base water supply
wells, the Air Force, through its IRP investigation, identified
the Reese industrial drain line as a possible source of the TCE
contamination in the Tower Area. Prior to that time, state and
federal regulators had never identified the industrial drain
line at Reese Air Force Base as a potential contamination source
despite numerous environmental inspections of the base. In fact,
as late as June 1988, a contractor for the EPA identified seventy-
nine solid waste management [**12] units (SWMUs) during a RCRA
facility assessment--assessments which often identify drain lines
as SWMUs--but failed to identify the Reese industrial
drain line as a potential contamination source or even as a SWMU.

 Surveys of sewer lines were uncommon in industry from the
1940s through the 1970s. Additionally, there were few manholes in
the Reese industrial drain line, making it virtually impossible
to determine the condition of the sewer in the northern shop
area. Because the sewer was underground and lacked the necessary
manholes for a complete inspection, the Air Force was unable to
determine the deteriorated condition of the line until recently
when it videotaped the sewer.

 The Origin Of The Trichloroethylene Present In Plaintiffs'
Wells

 The northern portion of the hanger line shop area, including a
portion of the Reese industrial drain line, is the only potential
contamination source area on Reese Air Force Base which could be
associated with the contamination detected in plaintiffs' wells.
Contamination from other areas on base would not move through the
groundwater toward plaintiffs' wells. For example, the direction
of groundwater flow at Industrial Lake and Sewage [**13] Lake
is to the east and southeast, while plaintiffs' wells are
northeast of these lakes. Thus a continuous TCE plume cannot be
shown between plaintiffs' wells and any area other than the
northern hangar line shops.

 If the source of TCE in plaintiffs' wells is the northern
hangar line shop area, the TCE [*924] responsible for
plaintiffs' contamination was probably disposed prior to the mid
1970s. The rate of groundwater flow in the aquifer is
approximately 228 feet per year. Given this rate of movement, all
of the TCE contamination which is now present in the groundwater
beneath plaintiffs' property was released into the environment
over twenty years ago. This interpretation of groundwater flow is
supported by the chemical data. Soil gas surveys detected
trichloroethane (TCA) in the shop area, but no TCA plume
exists in the groundwater. Shop records indicate that Reese
commonly used TCA as a solvent in the 1970s and 1980s. If the TCE
contamination present in groundwater beneath plaintiffs' property
had originated in the 1970s and 1980s, one would expect to see a
TCA plume coincident with the existing TCE plume because the
transport characteristics of the two chemicals are virtually
identical. [**14] The lack of any TCA plume shows that the
release must have occurred prior to the mid 1970s, and probably
much earlier.

 There is no evidence that TCE migration in the vicinity of
Reese Air Force Base has occurred in any form except as dissolved
TCE which moves in the prevailing direction of groundwater flow.

 The detection of TCE in wastewater samples collected at Reese
in the mid-1980s was consistent with TCE discharges from earlier
decades. A part of the TCE discharged in decades prior to the
1980s would necessarily have been adsorbed in sediments along the
wastewater pathway, providing a reserve of adsorbed TCE which
would dissolve slowly over the following years. The minute
TCE concentrations detected in the Reese wastewater stream in the
1980s are therefore artifacts of TCE disposal during prior
decades.

 The Environmental Effect Of Trichloroethylene

 There are no primary or secondary deleterious effects on
plants from exposure to water containing TCE at the
concentrations detected in plaintiffs' wells. Based on the
scientific literature, the concentrations of TCE in the
groundwater which plaintiffs used were several orders of
magnitude below the concentration levels necessary [**15] to
elicit acute or chronic toxicity in plants. Further, because of
the likely volatilization of TCE during plant watering,
concentrations of TCE which would actually be in water reaching
the plants were even less than the concentrations detected in
groundwater. Any concentrations of TCE that remained in the water
would be rapidly depleted upon reaching the plants, minimizing
the potential for exposure. Surface soils containing plants
metabolize and degrade TCE very rapidly. Additionally, a test of
a plant from Western Greenhouses did not detect any TCE.

 There is no basis for any concern on the part of Western
Greenhouses' customers or employees regarding exposure to plants
that were provided with water containing the small concentrations
of TCE detected in plaintiffs' wells. Given the minute
concentrations, the potential for exposure of either customers
or employees was extremely remote or negligible. No regulatory
agency ever quarantined or threatened to quarantine any of the
plants grown at the Western Greenhouses facility.

 EPA conservatively regulated TCE as a probable human
carcinogen despite the lack of medically recognized,
scientifically valid evidence that low levels [**16]of TCE can
cause cancer or other illnesses in humans. The EPA classified TCE
as a "probable human carcinogen" based on positive evidence of
liver tumors in a particular strain of laboratory mice given
large doses of TCE. There are no human studies which support the
EPA classification.

 Congress and the EPA believed that there were no safe
threshold levels for, any potential human carcinogens.
Accordingly, because the EPA classified TCE as a probable human
carcinogen, the EPA conservatively set the maximum contaminant
level goal (MCLG) for TCE--as it did for all chemicals classified
as probable human carcinogens--at zero. The EPA decided to set
the enforceable MCL for chemicals classified as probable human
carcinogens as close to the MCLG of zero as feasible. The EPA
determined that TCE could be reliably detected at levels
as low as 5 ppb, and that municipal water supplies could be
economically cleaned to that level. Accordingly, in July 1987,
the EPA set the MCL for TCE at 5 ppb.

 [*925] The EPA has apparently recently undertaken a review
of TCE to determine whether or not it should even be classified
as a "probable human carcinogen."

 Knowledge of Furr's, Inc. et al.

 The plaintiffs [**17] purchased the greenhouse property on
July 5, 1990 from Furr's, Inc., Mex/Tex Realty Company, and LSP &
Co. These sellers of the property either had prior knowledge or
should have known of the fact that some of the groundwater wells
on or adjacent to the greenhouse property had been sampled by the
Air Force, the Corps of Engineers or their contractors as far
back as 1988, and that the TCE plume had migrated onto or was
imminently threatening to migrate onto the property sold to the
plaintiffs.

 Nevertheless, Furr's, Inc., Mex/Tex Realty Company, and LSP &
Co., during negotiations with the plaintiffs prior to July 5,
1990, apparently failed to disclose to the plaintiffs that the
groundwater wells had been tested and that the groundwater at
Reese and adjacent properties to the east was the subject
of an ongoing investigation by the Air Force and its contractors.

 Lack Of Due Diligence By The Plaintiffs

 Plaintiffs contributed to their own ignorance of the
potentially contaminated condition of their property. The Small
Business Administration required a Phase I Site Assessment of the
property plaintiffs intended to buy. Mr. Cagle retained
Parkhill, Smith and Cooper, Inc. (PSC) to [**18] perform the
assessment. The evidence is not clear when PSC was first
contacted by plaintiffs. The purpose of any Phase I assessment is
to determine if there is anything that raises a suspicion of an
environmental problem with the property which merits further
inquiry. Robert McMillen of PSC quoted a price of 1200 to 1400
dollars to Mr. Cagle for the Phase I assessment of the 40-acre
property. Mr. Cagle indicated that the quoted price for the
assessment was too high and that he wanted the assessment to be
"dirt cheap." Mr. Cagle and Mr. McMillen agreed on a price
of less than one thousand dollars. Given the limited budget that
Mr. Cagle had given to PSC for the assessment, PSC limited the
scope of its investigation. The PSC investigation and site visit
were conducted on July 19, 1990, which was two weeks after the
plaintiffs had already purchased the greenhouse property.

 Plaintiffs' Alleged Damages

 Plaintiffs have suffered no diminution in the value of their
residential properties as a result of the TCE detected in their
wells. The Allen and the Cagle residences have public water
supplies at their property, which Reese Air Force Base provided
at no cost to Allen or Cagle. In [**19] March 1992, the
Air Force notified Mr. Cagle that one of the wells at Reese Air
Force Base, near Cagle's property, showed TCE contamination. Even
though tests of wells on plaintiffs' property had not revealed
any detectable contamination up to that time, the Air Force
offered to work with Mr. Cagle to assure a safe source of
drinking water for his home. Subsequently, the Air Force
connected Mr. Cagle's residence and Mr. Allen's residence to a
public water supply through the base.

 Plaintiffs have not demonstrated any lost business profits
attributable to the contamination. The accounting of Western
Greenhouses' earnings is calculated on a July to June fiscal
year. From July 1991 through June 1992, Western Greenhouses had
$5,333 in taxable income. From July 1992 through June 1993,
Western Greenhouses had $ 147,395 in losses. The losses in fiscal
year 1993 cannot be attributed to the contamination because the
losses all occurred prior to August 1993, when plaintiffs'
insurance was cancelled. Plaintiffs have not demonstrated that
they suffered any losses in sales which were related to the
contamination, prior to July 1, 1993, to explain their business
losses for fiscal year 1993.

 Plaintiffs [**20] have not demonstrated any profit history
for Western Greenhouses from which one could calculate future
lost profits with any degree of certainty. According to
plaintiffs' own accounting, the business earned only
$ 4,956 in fiscal year 1991 and only $ 5,333 in fiscal year 1992.
The business lost $ 147,395 in fiscal year 1993, a loss which
cannot be attributed to the contamination because the loss
occurred before the cancellation of their insurance. Accordingly,
wholly aside from the water problem, the business [*926] failed
to show any consistent earnings history. This inconsistent
earnings history for Western Greenhouses reflects business
expenses that were outside the normal range for similar
businesses in the industry. For example, Western Greenhouses'
overall operating expenses greatly exceeded the industry
average, but their advertising expenses fell below the industry
average.

 In an attempt to establish an earnings history for their
business, plaintiffs inappropriately added officer compensation,
rent and interest to the taxable income for past fiscal years to
compute earnings. According to textbook valuation theory, officer
compensation, rent and insurance are necessary expenses of
[**21] the business. Thus, to add these items to the taxable
income of the business is to overstate profits.

 The alleged offer to buy Western Greenhouses for 1.7 million
dollars in 1992 is not credible and carries no weight in the
damage calculation. The offer does not meet basic criteria for
reliability. The offeror, Mr. Dale Kincer, is a long-time friend
of the Cagle and Allen families. Mr. Kincer made the alleged
offer through an informal letter and paid no earnest money. Mr.
Kincer had no experience in the greenhouse business and had never
bought an ongoing business before. Mr. Kincer did not tell his
business partner of his intent to buy the greenhouses, and he did
not even divulge his intentions to the person he claims he wanted
to operate the business. Finally, neither Mr. Cagle nor Mr. Allen
informed the two other shareholders in Western Greenhouses, Ray
Stuart and Rex Henderson, of this offer.

 Furthermore, plaintiffs made no reasonable efforts to mitigate
their alleged damages. For example, after plaintiffs' insurance
was cancelled, plaintiffs did not diligently seek to obtain
alternative insurance. Instead, plaintiffs immediately planned to
close their business. Also, plaintiffs [**22] did not present
any evidence to their customers or insurance companies regarding
the Air Force's commitment to provide a clean and adequate water
supply to the greenhouse. Plaintiffs did not attempt to secure
any scientific opinions regarding the effect of the TCE detected
in their wells on the quality or safety of their plants. Instead,
plaintiffs made a few calls to insurance agents who were their
personal friends or acquaintances but made no follow-up
inquiries.

 Had plaintiffs made reasonable efforts to mitigate their
damages, their business would not have suffered due to
contaminated water. This is demonstrated by the successful
greenhouse operation of Ray Stuart. After Western Greenhouses
decided to go out of business, Mr. Stuart, a shareholder in
Western Greenhouses, planned to open a greenhouse business across
the street from Western Greenhouses. Mr. Stuart's greenhouse is
apparently located adjacent to, if not on, the plume of
contamination. Although Florist Mutual Insurance Co., the
original insurer for Western Greenhouses, denied insurance to Mr.
Stuart, he was able to obtain alternative insurance from Trinity
Universal Insurance Co. Additionally, despite the insured
cancellation, [**23] Western Greenhouses continued to do
business until the end of 1993. Most customers of Western
Greenhouses continued to buy plants from the greenhouse after
tests detected TCE contamination in the greenhouse wells.

 At most, plaintiffs' greenhouse property has been damaged by $
25,000 as a result of the contamination. Damages occur at the
greenhouse property due to the fact that the Air Force would
require access to the property to test the water and to maintain
the filtration equipment on plaintiffs' wells. This access
requirement diminishes the value of the property by no more than
five to ten percent of its normal market value.

 Aside from the administrative claim which is the subject of
this suit, plaintiffs filed six administrative claims for damages
with the Air Force. These six claims were for damages allegedly
caused by the Air Force's efforts to install and maintain a
filtration system for plaintiffs' water supply. The Air Force has
resolved these claims with plaintiffs in exchange for a release
from plaintiffs.

 Having made factual findings, the Court now applies to those
facts the law that is applicable in this case.

 [*927] Common Law Negligence Theory

 The Court concludes [**24] that the United States was not
negligent. Air Force employees at Reese Air Force Base did not
breach any duty of due care to protect plaintiffs from reasonably
foreseeable harm. Under the Federal Tort Claims Act (FTCA),
plaintiffs must demonstrate, among other things, that the
United States was negligent "in accordance with the law of the
place where the act or omission occurred." 28 U.S.C. @ 1346(b).
Therefore, to establish negligence, plaintiffs must meet the
requirements for negligence under Texas law.

 Under Texas law, a defendant cannot be negligent if the harm
to plaintiffs was not reasonably foreseeable at the time of the
alleged negligent act. To support a finding of negligence,
plaintiffs must show that the Air Force had a duty to use due
care to protect plaintiffs from injury, that the Air Force
breached that duty, and that the breach was a proximate and legal
cause of plaintiffs' injuries. See, e.g., Lucas v. Texas Indus.,
696 S.W.2d 372, 376-77 (Tex. 1984). In order to prove proximate
cause, plaintiffs must prove foreseeability. Hall v. Martin, 851
S.W.2d 905, 911 (Tex. Ct. App. 1993), cert. denied, 128 L. Ed. 2d
72, 114 S. Ct. 1399 (1994). The law of foreseeability [**25]
requires that a person of ordinary prudence (using ordinary care)
should have anticipated the damage to others caused by the
person's alleged negligent act. See Clark v. Waggoner, 452 S.W.2d
437, 439-40 (Tex. 1970); Clark v. South Loop Nat'l Bank, 740
S.W.2d 471, 472-73 (Tex. Ct. App. 1987).

 During time periods when government employees may have
committed acts that ultimately contaminated groundwater
underlying plaintiffs' property, the employees did not know, and
had no reason to know, that their acts could result in
plaintiffs' property damages. Because of the travel time
necessary for contaminants to reach plaintiffs' property from the
Reese shop area, only waste disposal practices occurring there
prior to the mid 1970s are relevant for the negligence inquiry.
Given the state of knowledge and the standard of industry
practice during the period between the 1940s and the 1970s, Reese
employees had no reason to know that their waste disposal or
maintenance activities could lead to plaintiffs' damages.

 The Air Force was not negligent in the investigation and
monitoring of the groundwater supply, and it was not negligent in
failing to warn the public of the TCE findings. The [**26]
Texas Water Commission in late 1987 assumed jurisdiction and the
responsibility of determining if and when the public should
be notified.

 Discretionary Function Exception

 The "discretionary function" exception limits the FTCA's
general waiver of sovereign immunity for "any claim . . . based
upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of the
federal agency or an employee of the Government, whether or not
the discretion involved be abused." 28 U.S.C. @ 2680(a).

 The United States Supreme Court has promulgated a two-part
test for applying the "discretionary function" exception: (1) the
challenged conduct must involve an element of judgment or choice,
and (2) the judgment or choice must be based on considerations of
public policy. United States v. Gaubert, 499 U.S. 315, 322-23,
113 L. Ed. 2d 335, 111 S. Ct. 1267 (1991); see also Alx El
Dorado, Inc. v. Southwest Savs. and Loan Ass'n/FSLIC, 36 F.3d
409, 411 (5th Cir. 1994). Discretionary conduct is not limited to
only the policy level. Gaubert, 499 U.S. at 325. "It is the
nature of the conduct, rather than the status of the actor,
that governs whether [**27] the discretionary function
exception applies in a particular given case." Id. (citing Varig
Airlines, 467 U.S. 797, 813, 104 S. Ct. 2755, 81 L. Ed. 2d 660
(1984)).

 If a federal statute, regulation, or policy specifically
prescribes a course of conduct, the discretionary function
exception does not apply. Berkovitz v. United States, 486 U.S.
531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988). In these
situations, the employee effectively has no choice, and the only
issue is whether the employee followed the directive. Dalehite v.
United States, 346 U.S. 15, [*928] 36, 97 L. Ed. 1427, 73 S.
Ct. 956 (1953). If he followed the directive, the government is
immune from liability under the first clause of 28 U.S.C. @
2680(a), because the employee's conduct is deemed to be in
furtherance of the policies which led to the promulgation of the
policy. Dalehite, 346 U.S. at 36.

 The IRP was intended to identify and fully evaluate suspected
problems associated with past waste management practice on
Department of Defense (DOD) facilities and to control the
migration of hazardous constituents from such facilities. Under
DOD policy, the IRP was to be implemented in four phases.
In Phase I, the department attempted to [**28] identify
potential problems through searching records. In Phase II, the
Department conducted on-site testing. Phase III included the
development of technology to remedy the problem if applicable,
and Phase IV involved the implementation of selected remedial
options. This process was eventually condensed into three phases
after the passage of Superfund Amendments and Reauthorization Act
in 1986. Plaintiffs fail to plead or produce any evidence of
negligence in connection with the adoption of the IRP. To the
extent the IRP provides any specific mandates, plaintiffs
have failed to plead or prove that Reese officials either failed
to comply with or violated these directives. To the extent that
the IRP allows Reese officials discretion, then these decisions
must be analyzed under the second prong of the Berkovitz test.

 For those actions involving discretion, the focus of the
inquiry shifts from whether the alleged negligence involved
discretion to the second prong of the analysis which analyzes
whether this type of discretion is protected.

 The discretionary function exception only protects those
decisions grounded in public policy. United States v. Varig
Airlines, 467 U.S. 797, 814, [**29] 104 S. Ct. 2755, 81 L. Ed. 2d
660 (1984). If a regulation allows an employee discretion, the
very existence of the regulation creates a strong presumption
that the discretionary act authorized by the regulation involves
the same policies which led to the promulgation of the
regulations. Gaubert, 499 at 324. "When established governmental
policy, as expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to exercise discretion, it
must be presumed that the agent's acts are grounded in policy
when exercising that discretion." Gaubert, 499 U.S. at 324.

 The DOD designed the IRP to balance several conflicting goals.
The IRP attempted to: 1) Advise the EPA and local governments of
IRP activities; 2) Maintain IRP as a basis for response to
CERCLA; 3) Prioritize and coordinate remediation efforts in order
to maximize the efficient use of DOD resources. When officials
contemplate the plethora of issues surrounding the decisions
concerning investigation, monitoring and public notification,
these officials directly engage in making public policy. See,
e.g., Daigle v. Shell Oil Co., 972 F.2d 1527, 1538 (10th Cir.
1992); Lockett v. United States, 938 F.2d 630, 639 (6th Cir.
[**30] 1991); U.S. Fidelity & Guar. Co. v. United States, 837
F.2d 116, 122 (3d Cir. 1988). The specific policy objective or
acknowledgement that budgetary concerns were of the utmost
importance removes these types of decisions from the ordinary
decisions that have minimal impact on budgets that the
discretionary function exception was not designed to protect. See
ARA Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir.
1987). Plaintiffs have failed to produce any evidence to overcome
the presumption that Reese officials were grounded in policy when
making decisions concerning the investigation, monitoring and
public notification of potential contamination.

 In Redland Soccer v. Department of Army, a Pennsylvania
district court held that the Army was not entitled to protection
from the FTCA through the discretionary function, because the
discretionary decisions concerning where to place a landfill,
what to commit to the landfill, and whether to transfer the
contaminated land, fell outside of the Army's congressionally
delegated mission. Redland Soccer Club v. Dep't of Army, 835 F.
Supp. 803, 809 (M.D.Pa. 1993). The court analogized the Army's
decisions to be more akin [**31] with the discretion involved
in driving [*929] an automobile than with the type of
discretion involved in policy making decisions. Id.

 This Court cannot agree that an agency only implicates public
policy when it acts within its congressionally delegated mission.
This shifts the focus of the analysis from the nature of the
decision to its categorical type. This is inconsistent with Fifth
Circuit precedent. See Ford v. American Motors Corp., 770 F.2d
465 (5th Cir. 1985) (holding that U.S. Postal Service was
entitled to protection under discretionary function exception
when selling used vehicles). Under Redland Soccer, courts would
be forced to determine the scope of the mission or missions that
Congress has delegated to each agency and whether each decision
implicated this mission. This court believes that this was not
the type of invasive inquiry the Supreme Court has contemplated
in its prior holdings. See Gaubert, 499 U.S. at 325 (rejecting
argument that the discretionary function only applies to
decisions made at the planning level). The invasive inquiries
required under Redland Soccer are completely inconsistent with
the underlying assumptions of the discretionary [**32]
function exception which is to avoid judicial interventions that
disrupt the separation of powers doctrine.

 Even if the Redland Soccer analysis were applied to these
facts, plaintiffs have failed to demonstrate that the defendant's
actions were not in the furtherance of national defense. Reese
was not a NPL facility; therefore, the costs of any remediation
efforts were incurred directly by the Air Force. As plaintiffs
have conceded in a prior motion for summary judgment, Reese would
be required to fund remediation efforts through the operations
and management budget (O&M). This concession creates two
difficulties for plaintiffs. First, any decision that would
deplete the O&M fund clearly implicates national defense
mission, because it directly impacts the military preparedness.
In addition, any sacrifices made for remediation efforts involve
the type of discretion that clearly implicates public policy.
Deciding how much the O&M fund must be depleted for remediation
efforts implicates public policy to a far greater degree than the
mere mechanical discretion associated with driving an automobile.
These sacrifices force decision makers to balance two of the
nation's top priorities: [**33] national defense and
environmental protection. Few decisions could have a greater
impact on public policy. Decisions concerning how to investigate,
monitor and notify about remediation efforts are distinguishable
from the dumping activities that were denied protection in
Redland Soccer.

 In this case, the discretionary function exception prohibits
plaintiffs from challenging Air Force decisions regarding the
investigation and remediation of environmental contamination at
Reese Air Force Base and decisions regarding public notification
of the results of the investigation.

 Nuisance or Trespass

 The Court does not have jurisdiction over plaintiffs' nuisance
claim or trespass claim to the extent plaintiffs seek to impose
liability against the United States through those claims without
proving negligence. The Federal Tort Claims Act does not waive
the sovereign immunity of the United States with regard to strict
liability claims. Laird v. Nelms, 406 U.S. 797, 801-03, 32 L.Ed.
2d 499, 92 S. Ct. 1899 (1972). The statute requires a negligent
act. Dalehite v. United States, 346 U.S. 15, 45, 97 L. Ed. 1427,
73 S. Ct. 956 (1953). Under Texas law, proof of negligence is not
[**34] essential to the imposition of liability for the
creation or maintenance of a nuisance. See, e.g., King v.
Columbian Carbon Co., 152 F.2d 636, 638-39 (5th Cir. 1945).
Likewise, a trespasser can be liable without reference to
negligence or the exercise of care. See, e.g., General Tele. Co.
v. Blacksher, 742 S.W.2d 465, 468 (Tex. Ct. App. 1987); Brown v.
Dellinger, 355 S.W.2d 742, 745 (Tex. Ct. App. 1962). Under the
Federal Tort Claims Act, however, plaintiffs cannot maintain
a nuisance or trespass claim without proving negligence as part
of that claim. Dalehite, 346 U.S. at 44-45.

 Negligence Per Se

 The United States was not negligent per se. To support a
finding of negligence per se, plaintiffs must show that the
United States violated a statute that contained [*930] a
standard of care applicable to the United States. Additionally,
under Texas law, plaintiffs must show that (1) one of the
purposes of the statute is to set up a standard of conduct
calculated to protect the class of persons to which plaintiffs
belong, and (2) the plaintiffs' injuries are of the nature that
the statute was designed to prevent. See, e.g., El Chico Corp. v.
Poole, 732 S.W.2d [**35] 306, 312 (Tex. 1987).

 CERCLA and RCRA are strict liability statutes that fail to
define a standard for conduct. In re Bell Petroleum Servs., Inc.,
3 F.3d 889, 897 (5th Cir. 1993) (CERCLA), and United States v.
Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 740 (8th
Cir. 1986), cert. denied, 484 U.S. 848, 98 L. Ed. 2d 102, 108
S.Ct. 146 (1987) (RCRA). Although no Texas courts have
specifically addressed whether section 26.121 of the Texas Water
Code defines a standard of conduct suitable for the application
of negligence per se, Texas courts have held that similar
statutes fail to define such a standard. Murfee v. Phillips
Petroleum Co., 492 S.W.2d 667, 673 (Tex. Ct. App. 1973). The
Court believes that when Texas courts consider section 26.121,
they will construe it in a similar manner.

 The United States did not violate any statute applicable to
government employees at Reese Air Force Base that was designed to
create a standard of care to protect plaintiffs from the type of
injuries that they have allegedly suffered. Even if negligence
per se theories could be applied under the facts and law, there
has been no proof that such violations were a cause-in-fact
[**36] of any of the damages alleged by plaintiffs.

 Res Ipsa Loquitur

 Plaintiffs have not met the requirements for the application
of res ipsa loquitur under Texas law. Plaintiffs have not
demonstrated that the contamination of groundwater is the kind of
event which ordinarily would not have occurred in the absence of
negligence. See Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865
(Tex. 1982); Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 250(Tex.
1974). In fact, standard industry practices throughout the period
between the 1940s and the 1970s unfortunately led to widespread
contamination of the environment across the country.

 Plaintiffs' Negligence

 Plaintiffs' own negligence is responsible for their failure to
detect the presence of contamination in close proximity to their
property before purchasing the land. Under Texas law, the
negligence of plaintiffs completely bars recovery if it is
greater than the negligence of the party against whom recovery is
sought; otherwise, the damages are diminished in proportion to
the amount of negligence attributed to the person recovering.
Tex. Civ. Prac. & Rem. Code Ann.@@ 33.001, 33.012 (West Supp.
1993). See also Bradshaw [**37] v. Freightliner Corp., 937
F.2d 197, 203-04 (5th Cir. 1991). Here, plaintiffs acted
unreasonably in seeking a "dirt cheap" Phase I environmental
assessment, when a proper and complete Phase I environmental
assessment would have disclosed to plaintiffs the true extent of
the known environmental contamination at Reese Air Force Base.
Plaintiffs also failed to have a timely environmental
assessment done prior to the plaintiffs actually purchasing the
greenhouse property.

 Conclusion

 Thus, the preponderance of the material and credible evidence
establishes that plaintiffs did not carry their burden of proving
negligence, negligence per se, nuisance, trespass, or res ipsa
loquitur under Texas law and the Federal Tort Claims Act.
Judgment on all claims will be entered against plaintiffs
and in favor of the United States

 Signed this 24th day of February, 1995.

 SAM R. CUMMINGS

 United States District Judge

 JUDGMENT

 On this date the Court has entered a Memorandum Opinion
setting forth findings of fact and conclusions of law in
reference to the above-styled and-numbered cause. Based upon the
reasons set forth in the Memorandum Opinion, the
Court enters the [**38] following judgment:

 IT IS ORDERED, ADJUDGED, AND DECREED that the plaintiffs,
Western Greenhouses, a Texas General Partnership, Billy J. Cagle,
Sheila J. Cagle, Norman W. Allen, Kelly D. Allen, and Western
Greenhouses, Inc., take nothing as against the defendant, the
United States of America. All court costs are taxed against
plaintiffs.

 Signed this 24th day of February, 1995.

 SAM R. CUMMINGS

 United States District Judge