ELR Citation: ELR 20189
No(s). 93-1015 (8th Cir. Nov 2, 1993)

The court affirms a district court's dismissal, under the Federal Tort Claims Act's (FTCA's) independent contractor and discretionary function exceptions, of a lawsuit against the federal government for groundwater contamination at a private farm, caused by trichloroethylene (TCE) disposal at an Air Force missile facility.

The court first holds that the FTCA's independent contractor exception bars the plaintiffs' suit because the Air Force did not exercise sufficient day-to-day control over the physical disposal of hazardous waste by the contractor's employees to cause them to be considered government employees for purposes of the FTCA. The court next holds that the FTCA's discretionary function exception bars the plaintiffs' common-law negligence claim. Although disposal of TCE at the plant allegedly violated government regulations, these regulations govern operations only when the Air Force itself, rather than a contractor, conducts the disposal. Because the regulations do not address the Air Force's supervision of contractors, the court holds that the district court did not err in concluding that no specific statute or regulation was implicated. Finally, the court holds that when no statute or regulation controls the government's monitoring of a contractor's work, the extent of monitoring is a question of discretion for the government. If arguably based on policy considerations, both negligent supervision of and failure to supervise a contractor are included in the FTCA's discretionary function exception. The government, through affidavits, asserted that the Air Force made policy decisions balancing quick completion of construction against close supervision of contractor operations. The plaintiffs offered nothing that would have allowed the trial court to reject the government's statements. The court notes that its ruling leads to a "harsh result" but holds that it is not within its power to determine the wisdom of Congress' decisions in enacting the FTCA.

[Counsel not available at this printing.]