ELR Citation: ELR 20491
No(s). 93-2545 (8th Cir. Jan 3, 1994)

The court affirms a district court decision that the Veterans Administration (VA) is not liable under the Federal Tort Claims Act (FTCA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to individuals who purchased an asbestos-contaminated house from it. The court first holds that the VA is not liable under the FTCA for negligent failure to inform the individuals of the true condition of the property, because the FTCA's discretionary function exception to its waiver of sovereign immunity covers acts involving an element of judgment or choice. Here, there are no requirements, statutory or regulatory, mandating the VA or its assignees to inspect for asbestos. Relying on precedent that the exception only protects government actions and decisions based on considerations of public policy, the court notes that under the administration of its housing loan program, the VA's policy is to sell acquired property quickly and at the best attainable price. Pursuant to the policy, the VA hired a management broker to clean the grounds and building, to minimize the risk of loss, to prevent damage by the elements, and to protect the property from theft and vandalism. Turning to the individuals' CERCLA claim, the court holds that the house is not a "facility" under §101(9), because it was a consumer product in consumer use.

Counsel for Appellants
Bradley Kane
2016 Battery St., Little Rock AR 72202
(501) 375-8517

Counsel for Appellees
Joshua Levin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

McMillian, J. (before Hansen and Arnold, J.):