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March 21, 1988

Smalls, David J., et al.
United States Environmental Protection Agency, United States of America

The opinion of the court was delivered by: GREEN


 Jurisdiction is based upon 28 U.S.C. § 1346(b) and the claims of this action are brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA") by more than 150 homeowners and tenants who live adjacent to the Clearview Landfill located in Philadelphia, Pennsylvania. According to the complaint, the United States Environmental Protection Agency (the "EPA") contracted with Graves Resource Management Company (hereinafter "Graves") to transport hazardous waste from EPA sites in Duluth, Minnesota and Haverford, Pennsylvania to a permitted hazardous waste disposal facility in Emelle, Alabama. Graves allegedly transported the waste to a facility at Clearview Landfill in Philadelphia, Pennsylvania. Plaintiffs are seeking damages because they claim that the hazardous waste deposited by Graves has been released into the soil, ground water and air surrounding the landfill causing damage to and diminishing the value of their real property and leaseholds.

 Plaintiffs' complaint alleges causes of action based upon theories of negligence, nuisance and strict liability. The strict liability claim was dismissed by order dated September 30, 1986. Plaintiffs' counsel acknowledges that the only claim upon which plaintiffs now rely is the one premised upon negligence. In support of the negligence claim plaintiffs allege that the EPA was negligent in (i) entrusting Graves with the removal, transportation and disposal of hazardous waste when it knew or should have known that he was not qualified to do this work; (ii) failing to use reasonable care in supervising the work entrusted to Graves including checking and verifying all manifests for hazardous waste; and (iii) failing to assure that Graves would not dispose of the hazardous waste at Clearview Landfill. See Plaintiffs' Complaint at pg. 29.

 In its motion to dismiss defendant contends that the challenged conduct involves discretionary functions, and thus the agency is immune from suit under the FTCA. The EPA argues that because the discretionary function exception is jurisdictional, this court lacks subject matter jurisdiction and is without authority to grant the requested relief of monetary damages.

 Under the FTCA, the government waives its sovereign immunity and permits parties to sue to recover for injuries attributable to the negligent conduct of government employees acting within the scope of their employment. However, this waiver is subject to the discretionary function exception which provides in pertinent part that:

The provisions of this chapter and section 1346(b) of this title shall not apply to -
(a) any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused 28 U.S.C. § 2680(a).

 The exception bars suits which challenge an administrator's decision to initiate programs and activities as well as shielding decisions made as to how to implement or establish such plans. Dalehite v. United States, 346 U.S. 15, 35-36, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). In a more recent discussion of the discretionary function exception, the Supreme Court identified certain factors to be considered in determining whether the discretionary function exception is applicable:

First, . . . the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee - whatever his or her rank - are of the nature and quality that Congress intended to shield from tort liability.
Second, . . . the discretionary function exception . . . plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.

 United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 813-14, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984) ("Varig Airlines") (footnote omitted). Following the Supreme Court's decision in Varig, the Third Circuit has consistently held that the discretionary function exception exempts the United States from claims based upon discretionary planning level acts and omissions, discretionary operational level acts and omissions and non-discretionary operational level acts and omissions taken in furtherance of planning level discretionary decisions. Berkovitz v. United States, 822 F.2d 1322, 1329 (3d Cir. 1987) (U.S. App. pending).

 Plaintiffs have made 3 claims in response to defendant's motion to dismiss. First, plaintiffs' claim the EPA was negligent in selecting Graves to transport hazardous waste and in supervising his work. The EPA decision regarding the selection and supervision of a private contractor who assists the EPA in carrying out a project, i.e., transportation and disposal of toxic waste definitely involves the exercise of an administrator's discretion and judgment in spending funds and executing a federal project. See Dalehite, supra. Thus, the EPA's selection of Graves, the terms of the contract, and the amount of supervision exerted over Graves ...

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