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

ELR Citation: 18 ELR 20612
Nos. No. 87-5073, 837 F.2d 116/27 ERC 1127/(3d Cir., 01/15/1988) District court decisions rev'd

The court holds that the discretionary function exception of the Federal Tort Claims Act bars recovery against the United States for damages caused by the accidental release of two acid clouds during the cleanup of an abandoned chemical facility. The Environmental Protection Agency On Scene Coordinator's (OSC's) decision to schedule an operation to neutralize a tank containing oleum sludge when the wind was blowing toward a nearby city was a discretionary policy judgment. The decision required the OSC to balance the risks of proceeding with the neutralization during unfavorable wind conditions against the risks of fire and explosion if the operation were delayed. That there was no evidence of an actual policy determination does not affect the discretionary nature of the decision. Further, there was no constitutional provision, statute, or regulation requiring the OSC to undertake removal actions only on days with favorable wind conditions, and the OSC's decision did not involve any violation of a superior's instructions.

[District court decisions are published at 17 ELR 20259 and 20261.]

Counsel for Appellee
Jonathan E. Butterfield
Liebert, Short, Fitzpatrick & Hirshland
30 W. 3rd St., Williamsport PA 17701
(717) 326-9091

Counsel for Appellant
Phyllis Jackson Pyles
Torts Branch, Civil Division
U.S. Department of Justice, Washington DC 20530
(202) 724-6745

Before Sloviter and Fisher,[*] JJ.