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Smalls v. EPA

ELR Citation: 18 ELR 21085
Nos. No. 86-1145, 683 F. Supp. 120/27 ERC 1561/(E.D. Pa., 03/21/1988)

The court holds that the Federal Tort Claims Act's (FTCA's) discretionary function exception bars a suit alleging that the Environmental Protection Agency (EPA) negligently selected and supervised a hazardous waste transporter and that the agency failed to ensure that the transporter disposed of the waste at a permitted facility. Residents living adjacent to the Clearview Landfill in Philadelphia, Pennsylvania, sought damages caused by the improper disposal of waste that contaminated the soil, groundwater, and air surrounding the site. The court holds that selection of a hazardous waste transport and disposal contractor, the terms of the contract, and the amount of supervision provided involve the exercise of discretion protected by the FTCA. The court holds that the discretionary function exception applies even though EPA hired a transporter that failed to comply with nondiscretionary regulations. Failure to assure compliance with nondiscretionary regulations does not preclude the application of the discretionary function exception. Moreover, the court holds, so long as the conduct is the type associated with the exercise of official discretion it does not matter that the regulations were nondiscretionary. The court holds that EPA, in selecting the contractor, did not violate §6001 of the Resource Conservation and Recovery Act, which requires the federal government to comply with state law, because §6001 only provides for injunctive relief and precludes a suit for money damages caused by the government's abuse of its discretionary function.

Counsel for Plaintiffs
Mark R. Cuker
Slap, Williams & Cuker
960 One Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

Counsel for Defendants
Jay Tidmarsh
Department of Justice
6101 D St. NW, Washington DC 20004
(202) 724-9891