(CN) — A federal judge ruled Thursday that plaintiffs could continue their claims against an environmental analysis firm allegedly fudging soil samples to conceal radioactivity at a former Navy test site in the Bayview neighborhood of San Francisco.
U.S. District Judge James Donato said the case could continue as attempts of Tetra Tech EC, an environmental analysis firm and the main defendant, to have the cases tossed from court on statute of limitations grounds failed to meet the legal standard.
“The statutes of limitations arguments turn on a host of factual disagreements that cannot be resolved at the motion to dismiss case,” Donato said.
While the legal victory for Kevin McLaughlin, Kevin Abbey and other plaintiffs is significant, the case is by no means over. It only means the defendants were unsuccessful in getting the cases thrown out at the motion to dismiss phase of the case.
The merits of the case still must be argued, if it gets past the summary judgment phase of the case.
The dispute stems from possible widespread fraud in the $1 billion cleanup of the former Hunters Point Naval Shipyard in San Francisco, which operated as a top-secret radiological test site from 1946 to 1969 and a place where ships returning from hydrogen bomb tests were decontaminated.
Both functions could lead to significant radioactive contamination.
After whistleblowers came forward with accusations that Tetra Tech falsified reports during a six-year cleanup project, the Environmental Protection Agency released a review finding that 90% to 97% of soil samples in two areas of the site were potentially compromised or purposefully falsified.
Tetra Tech was paid more than $250 million in contracts for its work on the Hunters Point project from 2006 to 2012, according to the U.S. Navy.
The contractor says the fraudulent conduct was limited to a few rogue employees, and that the whistleblowers, who would receive a portion of any damages award, are motivated by greed.
Despite the legal fallout and the potential for persistent contamination, the city of San Francisco has approved the construction of more than 10,000 houses on the potentially polluted 400-acre parcel.
Thursday’s hearings focused on whether plaintiffs in two cases, McLaughlin and Abbey, violated the statute of limitations when they filed their respective whistleblower claims.
Melissa Malstrom, attorney for Tetra Tech, said McLaughlin waited too long to file his claims, exceeding the six-year statute of limitations established in federal law.
“He left the site in August of 2012 and didn’t file claims until 2019,” Malstrom said. “You can do the math.”
But David Anton, attorney for McLaughlin, said the seven-year time frame is irrelevant since the statute also allows plaintiffs to file claims within three years of finding out about possible malfeasance.
“The attorney general’s office didn’t take steps to investigate until around December 2017,” Anton said. “The entire complaint is timely.”
Kevin Abbey, the plaintiff in a separate but related case, argued similarly that he should not be excluded from pursuing claims due the six-year term, but should be allowed to count from when the government began a material investigation into the matter.
Donato did not rule for one side or the other on the specific matter, but instead said because the dispute was over material disputes over the facts, it was inappropriate for the judge to resolve it at the motion to dismiss phase.
Donato routinely chastised the lawyers for reading from notes rather than talking directly to the judge.
“I know we’re on Zoom, but we are still in court,” he said at one point during the hearing. “Talk to me like we are having a conversation. Having a conversation with the judge is how you win cases.”
The plaintiffs did agree to drop any RICO charges, which are racketeering charges typically reserved for criminal enterprises like the mafia. Defendants who are convicted under RICO statutes are liable for paying damages up to three times the normal amount.
Donato said RICO charges were not appropriate for the current case and thanked the plaintiffs for dropping the matter.
McLaughlin said he worked for a subcontractor called Shaw Enterprises, who was hired by Tetra Tech to provide some of the environmental analysis work. McLaughlin said he was fired after he began to cast doubt on the integrity of the analysis performed at the former naval base.
Abbey is a former member of the San Francisco Police Department who claims he was exposed to radioactive contamination due to the negligence of the U.S. Navy and the fraud perpetrated by Tetra Tech.
Abbey’s suit is part of a class action involving other members of the police department.
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