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Gould Elecs. Inc. v. United States

Citation: 32 ELR 20439
No. No. 99-1130, (E.D. Pa., 01/10/2002) discretionary function exemption

The court holds that the Federal Tort Claims Act's (FTCA's) discretionary function exception barred a manufacturer's claims seeking contribution and indemnity from the United States for the settlement of individuals' toxic tort claims against the manufacturer. At the onset of the Korean War, the Army recognized a need for nickel cadmium batteries and, thus, contracted for the construction and operation of a battery plant in New York. From 1953 to 1962, the Army operated the plant, and the manufacturer acquired the plant from a successor to the Army. Subsequently, individuals sued the manufacturer for personal injuries and property damages allegedly caused by the plant's operation and discharge of wastewater directly to the Hudson River. The court first holds, however, that the Army's decision to design the plant's wastewater system to allow direct discharges was a discretionary decision. When the Army operated the plant, the River and Harbors Act's prohibition against the discharge of pollutants to waterways was construed to apply only to objects impeding navigation and, thus, was not mandatory or specific enough to eliminate the government's discretion in placing waste in the river. Similarly, two Executive Orders allegedly requiring government entities to prevent water and air pollution from federal activities were not mandatory and specific directives that deprived the Army of its discretion. Likewise, Army safety regulations, state law, a contract between the Army and the manufacturer's predecessor, and an easement for a stormwater drain do not provide specific, mandatory directives for the Army to follow in the disposal of its waste material. The court next holds that the Army's design of the facility for the production of military equipment is a discretionary function entitled to protection from liability under the FTCA. The court further holds that the Army's failure to warn local residents of the potential health hazards associated with the plant's wastewater design is also a discretionary function protected by the FTCA. Where a manufacturing plant produces vital war-time weapons components and where speed and efficiency are of essence, decisions relating to the release of information concerning what is discharged from the plant can be characterized as an Army policy judgment on how best to design and operate the plant. Therefore, because the discretionary function exception to the FTCA applies, the court lacks subject matter jurisdiction over the manufacturer's claims.

[Prior decisions in this litigation are published at 30 ELR 20158 and 31 ELR 20001.]

The full text of this decision is available from ELR (15 pp., ELR Order No. L-434).

Counsel for Plaintiff
Joel D. Gusky
Harvey, Pennington, Cabot, Griffith & Renneisen
1835 Market St., 29th Fl., Philadelphia PA 19103
(215) 563-4470

Counsel for Defendant
Ugo Colella
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000