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United States v. Nicolet, Inc.

Citation: 17 ELR 21088
No. No. 85-3060, (E.D. Pa., 03/19/1987) Motion for reconsideration granted in part

On reconsideration, the court holds that defendant's counterclaims in a cost recovery action brought by the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) are barred by the discretionary function exception to the Federal Tort Claims Act (FTCA). The court first holds that defendant's counterclaim in which it seeks recoupment of response costs may proceed to the extent it constitutes a compulsory counterclaim. The court then holds that the FTCA's discretionary function exception bars defendant's tort counterclaims arising from its allegations that the government issued an order under CERCLA §§ 104(a) and 106(a) and entered defendant's property without permission to conduct a cleanup of two asbestos-containing waste piles although defendant was ready to perform the cleanup. The court holds that defendant's counterclaim alleging that the United States deprived it of its property without due process, if considered a tort claim, is barred by the discretionary function exception. If this counterclaim does not sound in tort, the court would not have jurisdiction under the Tucker Act, since defendant seeks over $10,000. The court holds that defendant's trespass and negligence counterclaims are also barred by the discretionary function exception. The government's actions in selecting a site for the national priorities list and choosing the appropriate cleanup methods are the type of conduct Congress intended to shield from tort liability. The government's conduct involved not only scientific evaluation, which has been held to be nondiscretionary, but also policy determinations at the planning level.

[The court's earlier decision on this issue appears at 17 ELR 21085. A subsequent decision in the case appears at 17 ELR 21091.

Counsel are listed at 17 ELR 21085.