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K.W. Thompson Tool Co. v. United States

ELR Citation: 18 ELR 20729
Nos. No. 87-1536, 836 F.2d 721/27 ERC 1121/(1st Cir., 01/14/1988)

The court holds that the discretionary function exception of the Federal Tort Claims Act applies to a firearms manufacturer's claims that the Environmental Protection Agency (EPA) improperly issued discharge permits under the Federal Water Pollution Control Act (FWPCA) and that EPA breached its duty by initiating a criminal prosecution against the manufacturer rather than pursuing civil remedies. The court first holds that the discretionary function exception applies to plaintiff's claim that EPA improperly trained and supervised its personnel in connection with investigations of FWPCA violations and that EPA failed to use valid scientific data in issuing discharge permits. The FWPCA's mandate to EPA requires only that comprehensive programs for water pollution control be developed; the provisions for standards and their enforcement involve agency discretion. The court holds that the discretionary function exception also applies to EPA's decision to initiate criminal proceedings against plaintiff rather than seek civil remedies. EPA's civil penalty policy and its policy on private party settlements under the Comprehensive Environmental Response, Compensation, and Liability Act do not mandate civil action, since they are only general guidelines. Moreover, decisions to prosecute have traditionally been held to fall within the parameters of the exception.

Counsel for Plaintiff-Appellant
David Shaughnessy, John Wall
Cullen & Wall
141 Tremont St., Boston MA 02111
(617) 482-8650

Counsel for Defendant-Appellee
Howard S. Scher
Civil Division
Department of Justice, Washington DC 20530
(202) 633-4820

Before BOWNES and SELYA, Circuit Judges, and CAFFREY,[*] Senior District Judge.