Jump to Navigation
Jump to Content

Employers Ins. of Wausau v. United States

ELR Citation: 26 ELR 20951
Nos. No. 93-3592, 27 F.3d 245/38 ERC 1884/(7th Cir., 06/10/1994) aff'd

The court holds that the discretionary function exception to the Federal Tort Claims Act (FTCA) bars an insurer's claim that U.S. Environmental Protection Agency (EPA) officials acted tortiously in ordering the insurer to clean up a site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA has discretion under CERCLA to arrange for the removal and disposal of hazardous wastes and to take any remedial action or response that it deems necessary to protect public health and the environment, including issuing compliance orders and imposing fines. Even if EPA acted negligently or abused its discretion in ordering the insurer to clean up a site at which its insured disposed of polychlorinated biphenyls, the insurer cannot bring a tort action against EPA under the FTCA. The insurer's remedy lies in an action for reimbursement of its costs under CERCLA §106(b)(2).

[The district court's opinion is published at 24 ELR 20139. Related cases are published at 22 ELR 21511, 24 ELR 21298 and 21419, and 25 ELR 20848.]

Counsel for Plaintiff
Robert M. Wattson
Zelle & Larson
City Center
33 S. 6th St., Ste. 4400, Minneapolis MN 55402
(612) 339-2020

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

Before BAUER, FLAUM, and RIPPLE, Circuit Judges.