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Bacon v. United States

ELR Citation: 17 ELR 20635
Nos. No. 86-1853, 810 F.2d 827/25 ERC 1614/(8th Cir., 02/06/1987)

The court holds that an action by road workers to recover for injuries allegedly suffered from exposure to dioxin while repairing roadways pursuant to federal block grant funding is barred by the discretionary function exemption of the Federal Tort Claims Act (FTCA). The federal agencies involved are the Department of Housing and Urban Development (HUD), which provided a block grant to the county for the repair of roads in Times Beach, Missouri, and the Environmental Protection Agency (EPA), which conducted tests for dioxin in the area. Both agencies allegedly failed to warn plaintiffs of the presence of the dioxin. The court holds that the government is immune from suit under the FTCA's discretionary function exemption. Neither HUD nor EPA violated preexisting policy, since neither agency had formulated policies concerning warnings to persons exposed to areas potentially contaminated by dioxin. The fact that the agencies had never made a policy decision not to warn of the dangerous conditions caused by dioxin does not make the failure to warn an operational decision within the purview of the FTCA, since the applicable statutes and regulations do not require the agencies to warn plaintiffs of the dioxin contamination or to otherwise protect them.

Counsel for Appellants
Jerome Wallach
Suite 119, 9735 Landmark Parkway Dr., St. Louis MO 63127
(314) 849-6161

Counsel for Appellee
Joan M. Bernott
Civil Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before ARNOLD, JOHN R. GIBSON and MAGILL, Circuit Judges.