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U.S. Fidelity & Guar. Co. v. United States

Citation: 17 ELR 20259
No. No. 84-1255, (M.D. Pa., 04/16/1986) Summary judgment denied

The court holds that the actions of the Environmental Protection Agency (EPA) in selecting and directing the method used by its contractor to neutralize a tank containing oleum sludge during a removal action under the Comprehensive Environmental Response, Compensation, and Liability Act does not fall within the discretionary function exemption of the Federal Tort Claims Act. During the neutralization process, two acid clouds were accidentally released from the tank, causing personal injury and property damage. The court holds that the selection of the neutralization method by EPA's On Scene Coordinator, though it required the Coordinator to make a choice, did not constitute policymaking. The decision was made at an operational level and thus is not shielded from liability by the Federal Tort Claims Act.

[The court's decision holding EPA and its contractor liable for property damages caused by the release is published at 17 ELR 20261.]

Counsel for Plaintiff
Jonathan E. Butterfield
Liebert, Short, Fitzpatrick & Lavin
35 W. Third St., Williamsport PA 17701
(717) 326-9091

Counsel for Defendants
Barbara A. Kosik, Ass't U.S. Attorney
Box 309, Scranton PA 18501
(717) 348-2800

Ray E. Spears
Office of General Counsel
United States Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Phyllis Jackson Pyles
Torts Branch, Civil Division
Department of Justice, Washington DC 20530
(202) 633-2000