ELR Citation: ELR 20216
No(s). 89-1768 (6th Cir. Jul 3, 1991)

The court holds that the Federal Tort Claims Act's (FTCA's) discretionary function exception bars persons residing near a scrap yard contaminated with polychlorinated biphenyls (PCBs) from suing the U.S. Environmental Protection Agency (EPA) for alleged negligence in failing to warn them of dangers associated with the site and alleged failure to exercise reasonable care to prevent or decrease risks from exposure to the PCBs. EPA first learned that the site had detectable levels of PCBs in March 1981, but took no action against the site's owner, because it concluded that there was insufficient evidence that any PCBs had been recently placed into the ground or that any regulated PCBs or PCB-contaminated equipment existed on-site. In July 1984, an inspector for the Michigan Department of Natural Resources (MDNR) acting on behalf of EPA inspected the site and found PCBs on and near the site. EPA's local project officer determined that further monitoring of the site was required to determine the sources of the PCBs and dates of contamination. In 1986, MDNR personnel again inspected the site and found that the site owner was handling PCB-contaminated equipment and that high levels of PCB-contaminated oil and equipment existed on the site. EPA then issued advisory notices to the local media and neighbors of the scrap yard.

The court first holds that based on the provisions of the Toxic Substances Control Act, EPA regulations thereunder, EPA statements, and EPA regional documents cited by the scrap yard's neighbors, EPA was not required to undertake a specific and mandatory course of conduct when it learned of the 1981 and 1984 test results. Therefore, the statute and the relevant regulations granted regional EPA employees discretion to formulate a response to evidence of PCB contamination at a particular spill within their jurisdiction. The court next holds that the discretionary decisions made by EPA, based on "judgment calls" concerning the sufficiency of evidence of violations of applicable regulations, the allocation of limited agency resources, and determinations about priorities of serious threat to public health, are the very "public policy" discretionary judgments Congress intended to shield from liability under the FTCA's discretionary function exception. Congress intended that the discretionary function exception prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.

A dissenting judge would hold that the discretionary function exception does not bar the local residents' suit against EPA, because EPA has not shown that its initial inaction was based on a decision grounded in the kind of policy considerations that are shielded by the exception. Further, EPA has not proven that it was a matter of choice to enforce environmental laws mandated by Congress and commanded by the agency's own regulations.

[The district court's decision is published at 19 ELR 21463.]

Counsel for Plaintiffs-Appellants
Donnelly W. Hadden
301 S. Liberty, Ste. 585, Ann Arbor MI 48104
(313) 741-5050

Counsel for Defendant-Appellee
Geneva S. Halliday, Ass't U.S. Attorney
817 Federal Bldg., 231 W. Lafayette, Detroit MI 48226
(313) 237-0400

Sally M. Rider
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before RYAN, Circuit Judge, and EDWARDS and WELLFORD^*, Senior Circuit Judges.