# Appendix — United States Fidelity & Guaranty Co. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1235

## Text

z Supreme: Court, U.S.
) FEIELE D
APR 14 1988 |
8 % 1 8 0 3 JOSEPH F. SPANIOEL, JR
CLERK
NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1987
UNITED STATES FIDELITY & GUARANTY COMPANY

Petitioner
VS.

UNITED STATES OF AMERICA
Respondent

APPENDIX

Jonathan E. Butterfield, Esquire
Counsel for Petitioner
LIEBERT, SHORT,
FITZPATRICK & HIRSHLAND

One Executive Plaza, Suite 400
330 Pine Street

Williamsport, PA 17701

(717) 326-9091

“5 CAO aaa

at hati isa ‘

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 87-5073

UNITED STATES FIDELITY
& GUARANTY COMPANY

vs.
UNITED STATES OF AMERICA,
Appellant

Appeal From The United States District
Court For The Middle District
Of Pennsylvania (Scranton)
(D.C. Civil No. 84-1255)

Argued September 9, 1987

BEFORE: SLOVITER, and STAPLETON,
Circuit Judges, and
FISHER, District Judge*

(Opinion filed January 15, 1988)

Jonathan E. Butterfield (Argued)

Liebert, Short, Fitzpatrick &
Hirshland

30 West Third Street

Williamsport, PA 17701

Attorney for Appellee

* Honorable Clarkson S. Fisher. United States District Judge for
the District of New Jersey (Trenton), sitting by designation.

2a

Richard K. Willard
Assistant Attorney General

James J. West
United States Attorney

Jeffrey Axelrad

Phyllis Jackson Pyles (Argued)
Attorneys, Torts Branch

Civil Division

U.S. Department of Justice
Washington, D.C. 20530

: Ray E. Spears
Office of the General Counsel
U.S. Environmental Protection
Agency
Washington, D.C. 20460

Attorneys for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The United States Fidelity & Guaranty Company
(U.S.F.&G.) instituted this action against the United
States under the Federal Tort Claims Act, 28 U.S.C.
88 2671-2680 (1982). The action seeks recovery for
losses arising from an accident that occurred during
the cleanup of an abandoned chemical facility. After
trial, the district court held that U.S.F.&G. could
recover. Because we hold that the discretionary
function exception, 28 U.S.C. § 2680(a) (1982), bars
recovery against the United States in this case, we will
reverse.

3a

1.

The district court found the following facts. Drake
Chemicals, Inc. (Drake) operated a chemical
manufacturing facility in Lock Haven, Pennsylvania
from 1961 until the company went bankrupt in 1981.
When Drake ceased operations, it abandoned its
manufacturing site, leaving numerous chemical
drums, tanks, and reactors behind. The Pennsylvania
Department of Environmental Resources inspected the
Drake site and determined that the site posed a threat
to the public health and to the environment. After
attempting unsuccessfully to have Drake clean up the
site, the Department requested the Environmental
Protection Agency (EPA) to undertake a cleanup
operation.

In February 1982, the EPA approved the Drake site
for an “immediate removal action” pursuant to its
authority under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42
U.S.C. 88 9601-9657 (1982) (CERCLA). The EPA
typically undertakes an immediate removal action only
if it determines that a response is needed within hours
or days to prevent or mitigate significant harm to the
public health or to the environment. After conducting
an investigation, the EPA concluded that an imminent
threat of fire and explosion existed at the Drake site, as
well as a threat of public contact with hazardous
chemicals.

The immediate removal action at the Drake site
was directed by an On Scene Coordinator, an EPA
employee, who selected OH Materials Handling
Company (OH Materials), a private cleanup specialist,
as the prime contractor for cleaning up the Drake site.
The On Scene Coordinator had primary responsibility
for determining the nature and scheduling of the work
to be done, the means of disposing of waste, and the
expenditures of OH Materials for materials and

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manpower. In particular, the On Scene Coordinator
had responsibility for directing and monitoring the
activities of OH Materials.

One of the most serious hazards at the Drake site
was an old railroad tank car resting on raised concrete
pedestals. The tank contained oleum, a solution of
sulfur trioxide in concentrated sulfuric acid, which is
extremely reactive with a wide range of compounds and
sensitive to moisture. At the commencement of the
removal action, the oleum tank was venting directly
into the atmosphere and posed a major threat of fire,
explosion, and release of pollutants.

OH Materials suggested that the tank be removed
from its pedestals and transferred to a remote location,
or alternatively placed on the ground at the rear of the
Drake site prior to neutralization and removal of the
oleum. The On Scene Coordinator rejected these
recommendations after considering the potential risks
from moving the tank. OH Materials then suggested
neutralizing the oleum in the tank by slowly draining
all of the liquid oleum from the tank through the
bottom valve into a container of water and allowing the
oleum to react with the water in a controlled fashion.
The remaining sludge inside the tank would then be
neutralized by slowly adding water to the tank.
Following the completion of the chemical reaction, the
neutralized sludge would be drained. The On Scene
Coordinator approved this plan.

On March 4, 1982, a hydrogeologist employed by
the Commonwealth issued a report recommending
that the more hazardous operations at the Drake site,
such as those involving oleum, should be done on a
sunny day with a north wind in excess of three knots.
The reason for this recommendation was that the City
of Lock Haven, with a population of approximately
15,000, is situated immediately to the north, west, and
northeast of the Drake site, while areas to the south,

Pe eee

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southeast, and east of the site are sparsely populated.
The On Scene Coordinator was on notice of the
hydrogeologist’s report prior to the neutralization of
the oleum tank.

On March 15, 1982, while the oleum was being
drained from the tank through the bottom valve, a nut
loosened and an uncontrolled flow of oleum escaped
and began to react with the water in the tub below the
tank. Employees of OH Materials tightened the valve,
but not before a dense cloud of sulfur trioxide and
sulfuric acid formed and migrated toward Lock Haven.
Five Pennsylvania Department of Transportation
workers suffered respiratory distress from exposure to
the acid cloud.

After this incident, the On Scene Coordinator met
with OH Materials and decided to continue
neutralization in the manner originally approved. OH
Materials proceeded to add water gradually te the
oleum tank until the tank was completely filled with
water and all evidence of reaction between the water
and the contents of the tank ceased. OH Materials then
began draining the supposedly neutralized material
through the bottom valve.

On March 23, 1982, drainage stopped because the
valve had become clogged with sludge. To clear the
valve, OH Materials employees inserted rods through
the manway at the top of the tank. Following the
insertion of the rods, a steam explosion occurred in the
oleum tank. A large cloud of sulfur trioxide and sulfuric
acid escaped out of the manway. Blown by
south-southwest winds, the acid cloud migrated into
Lock Haven, where it caused property damage to over
S00 motor vehicles, an airplane, and several buildings.

U.S.F.&G., the insurer for OH Materials, paid out
$133,296.97 in claims arising out of the March 23
incident. U.S.F.&G. filed an administrative settlement
claim with the EPA, which the EPA denied. U.S.F.&G.

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then filed this suit against the United States on
September 20, 1984, seeking recovery of its losses from
the March 23 incident. On February 13, 1986, without
having submitted a separate administrative claim to
the EPA, U.S.F.&G. filed an amended complaint adding
a claim for $5000 of personal injury losses arising out
of the March 15 incident. The United States then filed a
motion to dismiss or for summary judgment on the
ground that the discretionary function exception
barred liability. The district court denied this motion.
After trial, the district court again concluded that
the discretionary function exception did not apply. See
United States Fidelity & Guar. Co. v. United States,
638 F. Supp. 1068, 1077 (M.D. Pa. 1986). In addition,
the court dismissed the personal injury clatms arising
out of the March 15 incident, because U.S.F.&G. never
submitted these claims to the EPA as required by 28
U.S.C. § 2675 (1982). See id. at 1077-78. With respect
to the March 23 incident, the court rejected the
arguments that the United States was negligent in
leaving the oleum tank on its pedestals before
neutralization and in continuing with the
neutralization procedure after the March 15 incident.
See id. at 1079-80. The court did find, however, that
the United States was negligent in “failing to take wind
conditions into account while supervising the
neutralization of the oleum tank.” Id. at 1084. The
court held that the Government was liable for 60% of
the damage arising out of the March 23, 1982 incident.
The United States appeals on several grounds. We
address only the Government's contention that the
discretionary function exception bars recovery,
because our disposition of this issue renders
unnecessary a discussion of the other issues raised on
appeal. The scope of review of the applicability of the
discretionary function exception is plenary. We have
jurisdiction under 28 U.S.C. § 1291 (1982).

YE ——————

7a

Il.

The Federal Tort Claims Act waives the sovereign
immunity of the United States in claims “for injury or
loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any
employee of the Government while acting within the
scope of his office or employment.” 28 U.S.C. § 1346{b)
(1982). The statute, hcwever, contains an exception for
“[ajny 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) (1982). If governmental conduct falls within
the discretionary function exception, it is irrelevant
whether the United States abused its discretion or
acted negligently.

In defining the scope of the discretionary function
exception, the Supreme Court has recently stated the
general rule that

it is the nature of the conduct, rather than the
status of the actor, that governs whether the
discretionary function exception applies in a given
case... . Thus, 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.

United States v. S.A. Empresa De Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 813, 104
S.Ct. 2755, 2764 (1984).

Varig reaffirmed the construction of the
discretionary function exception set forth in Dalehite
v. United States, 346 U.S. 15, 28. 73 S.Ct. 956, 964
(1953). Dalehite held that governmental conduct

8a

falling within the discretionary function exception
“includes more than the initiation of programs and
activities. It also includes determinations made by
executives or administrators in establishing plans,
specifications or schedules of operations. Where there
is room for policy judgment and decision there is
discretion.” Id. at 35-36, 73 S.Ct. at 968 (foctnote
omitted), quoted in Varig, 467 U.S. at 811, 104S.Ct. at
2763. The purpose of exempting decisions in which
there is room for policy judgment and decision is to
“prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social,
economic, and political policy through the medium of
an action in tort.” Varig, 467 U.S. at 814, 104S.Ct. at
2765.

In interpreting the Supreme Court's
pronouncements in Dalehite and Varig, this court has
developed several principles for determining whether
governmental conduct is discretionary within the
meaning of the exception. In the first place, conduct
cannot be discretionary if it violates the Constitution, a
statute, or an applicable regulation. Federal officials do
not possess discretion to violate constitutional rights
or federal statutes. Pooler v. United States, 787 F.2d
868, 871 (3d Cir.), cert. denied, 107 S.Ct. 175 (1986).
In addition, an agency's violation of its own mandatory
regulations is not a discretionary act. Berkovitz by
Berkovitz v. United States, 822 F.2d 1322, 1332 (3d
Cir. 1987), petition for cert. filed, 56 U.S.L.W. 3271
(U.S. Sept. 25, 1987) (No. 87-498).

Second, it is irrelevant whether the government
employee actually balanced economic, sociai, and
political concerns in reaching his or her decision. In
Smith v. Johns-Manville Corp., 795 F.2d 301, 308-09
(3d Cir. 1986), we stated that “(t]he test is not whether
the government actuaily considered each possible
alternative in the universe of options, but whether the

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9a

conduct was of the type associated with the exercise of
official discretion.” This rule corresponds with the
holdings of several other courts of appeals. In
Myslakowski v. United States, 806 F.2d 94, 97 (6th
Cir. 1986), cert. denied, 107 S.Ct. 1608 (1987). the
Court of Appeals for the Sixth Circuit held that

even the negligent failure of a discretionary
government policymaker to consider all relevant
aspects of a subject matter under consideration
does not vitiate the discretionary character of the
decision that is made.

Indeed, it is, in part, to provide immunity
against liability for the consequences of negligent
failure to consider the relevant, even critical,
matters in discretionary decisionmaking that the
Statutory exception exists. If it were otherwise, a
judgrnent-based policy determination made at the
highest levels, to which all would concede that the
Statutory exception applies (the decision to sell
surplus jeeps), would result in no immunity if the
decision could be shown to have been made
without consideration of important, relevant
factors, or was a decision negligently reached. If
that reasoning were sound, the discretionary
function exception would be inapplicable in every
case in which a negligent “failure to consider” a
relevant risk could be proved.

Accord Allen v. United States, 816 F.2d 1417, 1422
n.5 (10th Cir. 1987) (quoting Myslakowski and
stating that it is “irrelevant whether the alleged failure
to warn was a matter of ‘deliberate choice’ or a mere
oversight”), petition for cert. filed, 56 U.S.L.W. 3171
(U.S. July 20, 1987) (No. 87-316); In re Consolidated
United States Atmospheric Testing Litigation, 820
F.2d 982, 998 & n.19 (9th Cir. 1987) (quoting Allen
and Myslakowski and holding that the exception “does

10a

not require an analysis of the decisionmaking
process”). Thus, the relevant question is not whether
an explicit balancing is proved, but whether the
decision is susceptible to policy analysis.

Third, although 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,”
Varig, 467 U.S. at 813-14, 104 S.Ct. at 2764,
regulatory conduct is neither necessary nor sufficient
for the application of the discretionary function
exception. Not all regulatory acts are discretionary. See
Berkovitz, 822 F.2d at 1327-28. Moreover, not all
conduct falling within the exception is regulatory. Acts
of a governmental nature also include “‘other
administrative action not of a regulatory nature, such
as the expenditure of Federal Funds, the execution of a
Federal project and the like.’” Dalehite, 346 U.S. at 27,
73 S.Ct. at 963 (quoting Hearings on H.R. 5373 and
H.R. 6463 before the House Committee on the
Judiciary, 77th Cong., 2d Sess., 28, 33 (1942)
(statement of Assistant Attorney General Francis M.
Shea)) {footnote omitted), quoted in Varig. 467 U.S. at
810, 104 S.Ct. 2762.

Finally, the decisions of the Supreme Court and
this court reveal that the dichotomy between planning
level and operation level conduct does not resolve the
question of whether a governmental act is
discretionary within the meaning of the exception.
Although the Supreme Court in Dalehite did suggest
that planning level decisions are discretionary and
distinguished these decisions from operational
decisions, see 346 U.S. at 42, 73 S.Ct. at 971, Dalehite
neither states nor implies that all operational decisions
are nondiscretionary. In fact, Dalehite states that
“{njot only agencies of government are covered [by the
exception! but all employees exercising discretion.” Id.

lla

at 33, 73 S.Ct. at 966-67 (footnote omitted). Varig
reinforced this conclusion by putting the focus on “the
nature of the conduct, rather than the status of the
actor.” 467 U.S. at 813, 104 S.Ct. at 2764.

In addition, this court in Berkovitz noted that
operational conduct can be discretionary within the
meaning of the exception. 822 F.2d at 1329. Acts at the
operational level may be discretionary if planning level
orders anticipate decisions at lower levels that leave
room for policy judgment and decision. See Pooler, 787
F.2d at 871 (officer in charge of investigation had
discretion in deciding how to pursue investigation,
since “he had to exercise judgment as to the policy
decision to use an informant and as to the extent of
control which should be maintained over the selected
informant”). Moreover, operational acts mandated by
orders of planning level superiors are protected by the
exception even though the actual actor does not
exercise discretion. Dalehite, 346 U.S. at 36, 73 S.Ct.
at 968 (“acts of subordinates in carrying out the
operations of government in accordance with official
directions cannot be actionable”), cited in Varig, 467
U.S. at 820, 104 S.Ct. at 2768.

III.

With these principles in mind, we now turn to the
specific facts of this case. Although the complaint
alleged several theories of negligence on the part of the
United States, the district court found the Government
negligent only in its conduct concerning the timing of
the neutralization of the oleum tank. In particular, the
district court held that the Government should have
scheduled the oleum removal operation at a time when
the wind was not blowing toward the city. Since
U.S.F.&G. does not appeal the district court's holding,
we restrict our discussion to this single decision by the
Government.

12a

In. Dalehite. the Supreme Court found that the
Government's conduct in manufacturing fertilizer and
loading it onto a ship where it later caught fire and
exploded was protected by the discretionary function
exception. The fertilizer, which contained an explosive
ammonium nitrate base, had-been manufactured and
was being shipped pursuant to a federal program the
ultimate objective of which was to provide food for
countries occupied by the United States after World
War II. One of the negligent acts found by the district
court to be a proximate cause of the explosion was a
decision by the Field Director of Ammunition Plants to
bag the fertilizer at a temperature of 200 degrees
Fahrenheit. The Supreme Court held this decision to
be within the discretionary function exception because
it was the kind of decision that required the
decisionmaker to weigh the risk of fire and explosion
inherent in bagging at this temperature against the
“greatly increased production costs and/or greatly
reduced production” that would attend bagging at a
lower temperature. 346 U.S. at 41, 73 S.Ct. at 970. The
Supreme Court observed that “|t}his kind of decision ts
not one which the courts. under the Act, are
empowered to cite as ‘negligence.’” Id.

We perceive no material distinction between the
decision challenged in Dalehite and the one attacked
here. The objective of this phase of the CERCLA
program is to protect the public from the dangers of
abandoned toxic waste. Execution of that program and
accomplishment of its objective necessarily require the
setting of priorities in light of the risks presented at
various sites and the finite resources available to
address the problem. In this instance, the EPA
classified the cleanup operation at the Drake site as an
“immediate removal action.”” The agency thus
determined that significant risks would attend a delay
in cleanup

ee

13a

With this hazard identified and this priority fixed,
the On Scene Coordinator was dispatched with
authority to determine how to schedule the cleanup
operations at the Drake site in a manner that would
most safely and effectively minimize the risk of serious
injury to the public. In particular, the On Scene
Coordinator faced the problem of when to schedule the
neutralization of an oleum tank that was venting
directly into the atmosphere and posed a major threat
of fire, explosion, and release of pollutants into the air.
In this context, one would expect the scheduling
decision to reflect not only the available resources and
the other hazards to be neutralized on the site, but
most importantly, a balancing of the risks of
proceeding with the neutralization on the day chosen
against the risks of further delay. Thus the authority
delegated to the On Scene Coordinator left room for,
and indeed required, the exercise of policy judgment
based upon the resources available and the relative
risks to the public health and safety from alternative
actions.

As a result, we view the challenged decision here as
involving as much or more of a discretionary function
as the bagging temperature decision in Dalehite. In
the words of Dalehite, the On Scene Coordinator's
atleged negligence came in the context of “the
execution of a Federal project,” 346 U.S. at 27, 73 S.Ct.
at 963, and involved a “determination[! made by .. .
{an] administrator]... establishing. . . [a] schedule{]
of operations”, id. at 35-36, 73 S.Ct. at 968, for the
project. Under the Act, we are not “empowered to cite
as ‘negligence.’” id. at 41, 73 S.Ct. at 970. such a
decision.

In its opinion, the district court acknowledged that
“[ijt is conceivable that under certain circumstances
the hazard posed by a tank would be so great that
removal operations would have to proceed immediately

14a

and without regard to wind conditions.” 638 F. Supp.
at 1080. But the court went on to second-guess the On
Scene Coordinator's decision in this particular case by
finding it to be negligent. Under this court's analysis in
Smith, however, the fact that there was no evidence of
an actual policy determination by the On Scene
Coordinator taking wind conditions into account does
not affect the nature of the decision. Once the district
court found that there could be room for a policy
judgment, it should have ended its analysis.

None of the circumstances’ rendering
governmental conduct nondiscretionary was present
in this case. There was no applicable constitutional
provision, statute, or regulation requiring the On
Scene Coordinator to undertake removal actions only
on days with favorable wind conditions. The report of
the Commonwealth's hydrogeologist did not impose a
nondiscretionary, mandatory duty on the On Scene
Coordinator. The report represented the opinion of one
expert that the On Scene Coordinator had the
authority to accept, reject, or balance against other
considerations.

In addition, U.S.F.&G. does not suggest that the
On Scene Coordinator's decision involved any violation
of a superior’s instructions. CERCLA and the EPA give
the On Scene Coordinator broad responsibility to
formulate the best means of achieving the statute's
goals. Thus, even if the On Scene Coordinator's
decision could be classified as operational, it was
nevertheless discretionary. The timing decision was
one that called for a policy judgment.

U.S.F.&G. cites two Supreme Court cases in
response to the analysis set forth above: Indian
Towing Co. v. United States, 350 U.S. 61, 76S.Ct. 122
(1955) and Rayonier, Inc. v. United States, 352 U.S.
315, 77 S.Ct. 374 (1957). In Indian Towing, the
Supreme Court held that the Government could be
held liable for the Coast Guard's negligence in

as

15a

operating a lighthouse. In Rayonier, the Court held
that the Government could be held liable for the
negligence of Forest Service employees in fighting fires
originating on federal lands. But these cases do not
control here because neither one involves an
interpretation of the discretionary function exception.
The Court in Varig distinguished Indian Towing
because the Government in that case conceded that the
discretionary function exception did not apply, and
argued instead (to no avail) that the Coast Guard was
protected against liability in the operation of a
lighthouse because it was a “uniquely governmental
function.” 467 U.S. at 812, 104 S.Ct. at 2763. The
Varig Court distinguished Rayonier because Rayonier
did not discuss or rely upon the discretionary function
exception; rather, it relied on, and overruled Dalehite's
reading of, 28 U.S.C. § 2674, which allows recovery
against the United States “in the same manner and to
the same extent as a private individual under like
circumstances.” Rayonier held only that under the Act
the United States cannot claim immunity from liability
for the negligence of its fire fighters on the ground the
local governments generally enjoy such immunity for
the negligence of their fire fighters. See Varig, 467 U.S.
at 813n.10, 104S.Ct. at 2764 n.10. We must adhere to
the Court's admonition in Varig that the principles
developed in Dalehite still govern the interpretation of
the discretionary function exception. Cf. Mahler v.
United States, 306 F.2d 713, 723 n.13 (3d Cir. 1962)
(decided before Varig, stating that Dalehite’s approach
to analyzing the discretionary function exception
survived Indian Towing and Rayonier).

IV.

Because the discretionary function exception bars
recovery against the United States in this case, the
decision of the district court will be reversed.

l6a
A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

(A.O. U.S Courts. G.M.C. Printing, Phila., Pa. 215-568-4264)

17a
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES FIDELITY AND
GUARANTY COMPANY,

Civil No. 84-1255

Plaintiff, :

V. s

UNITED STATES OF AMERICA. :
Defendant. :

JUDGMENT

This action came on for trial before the Court, the issues
having been duly tried and decisions having been duly
rendered. Accordingly, pursuant to this Court's Opinion
and order of July 3, 1986, as amended by Orders filed on
July 3, 1986 and on August 7, 1986, the Opinion and
Order of October 24, 1986, and the Stipulation Pertaining
to Damages filed by the parties,

IT IS HEREBY ORDERED AND ADJUDGED that the
Plaintiff, United States Fidelity & Guaranty Company,
recover from the Defendant, United States of America, the
sum of $91,374.75.

Done this 17th day of November, 1986, at Williamsport.
Pennsylvania.

UNITED STATES DISTRICT JUDGE

PILED

Williamsport, Pa.
Nov. 17, 1986
DONALD R. BERRY, Clerk

18a
OPINION
MUIR, District Judge.
I. Introduction

On September 20, 1984, the United States Fidelity &
Guaranty Company (hereafter “U.S.F. & G’) filed the
complaint in this action against the United States of
America seeking recovery pursuant to the Federa! Tort
Claims Act. 28 U.S.C. §2671, et seq. Recovery was sought
for losses which occurred as a result of a release of an acid
cloud on March 23, 1982 during the clean-up of a tank
containing hazardous chemical waste at the site of Drake
Chemicals, Inc. in Lock Haven, Pennsylvania. On February
13, 1986, an amended complaint was filed adding a claim
for $5,000 of personal injury losses which occurred as a
result of another release of a sulphuric acid cloud from the
same tank. On February 28, 1986. the United States filed a
motion to dismiss or for summary judgment based upon its
assertion that the challenged acts of the Environmental
Protection Agency (hereafter “EPA”) fall within the dis-
cretionary function exception to the Federal Tort Claims
Act, 28 U.S.C. § 2671, et seq. By opinion dated April 16,
1986, this Court denied the motion, ruling that the dis-
cretionary function exception does not apply in this case.

The case was bifurcated for trial between the issues of
liability and damages and the liabitity phase of the case was
tried to the Court from June 2 through 6, 1986. The Court's
findings of fact. discussion, and conclusions of law as to
liability follow.

II. Findings of Fact.

The parties submitted undisputed findings of fact which
have been adopted by this Court. The letter “U” for
“Undisputed” follows such findings.

1. Plaintiff. the United States Fidelity & Guaranty
Company (hereinafter “U.S.F. & G.”) is a corporation
engaged in the insurance business. (U)

2. The Defendant is the United States of America,
acting through its Environmental Protection Agency (here-
inafter “EPA”). (U) -

3. At all times material to this action. U.S.F. & G. was
the insurer of the OH Materials Handling Company, a

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19a

division of KBI, Inc. (hereinafter referred to as “OH Mat-
erials’), pursuant to a liaoility insurance policy issued by
U.S.F. & G. to KBI, Inc. (U)

4. OH Materials, as relevant to this litigation, is engaged
in the business of containing, abating, and cleaning up
hazards posed by chemical waste. (U)

5. Drake Chemicals, Inc. is a corporation which operated
a chemical manufacturing facility in Lock Haven, Penns-
ylvania, from 1961 to August, 1981. (U)

6. In or around August, 1981, Drake Chemicals, Inc.
ceased operations and filed a petition in bankruptcy. (U)

7. At the time it discontinued its operations, Drake
Chemicals abandoned its manufacturing site, leaving num-
erous chemicals, drums, and reaction vessels at the site
(hereinafter referred to as “Drake site”). (U)

8. The Pennsylvania Department of Environmental Re-
sources (hereinafter “Department of Environmental Re-
sources’) inspected the Drake Chemicals site and deter-
mined that it posed a threat to the public health and the
environment. (U)

9. On January 5, 1982, the Department of Environ-
mental Resources ordered Drake Chemicals to clean up the
Drake site. (U)

10. Drake Chemicals responded to the orders of the
Department of Environmental Resources by advising that it
lacked the financial resources to clean up the site. (U)

11. In February of 1982, the Department of Envir-
onmental Resources requested that EPA consider the
Drake site for emergency funding of a cleanup under the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (hereinafter “the Act”), 42 U.S.C.
§9601 et seq. (U)

12. The Act is a federal program which provides
authority to the federal government to clean up sites which
it has determined pose an imminent threat of harm or
endangerment to the public health and the environment.

(U)

20a

13. Cleanups under the Act of sites such as the Drake
site are administered by EPA. (U)

14. The Act authorizes removal and remedial actions
as responses to potential hazards. (U)

15. “Removal” actions under the Act are relatively
short-term responses and include “immediate” and “plan-
ned” removals. (U)

16. The Drake Chemicals site was considered by EPA
for an immediate removal action under the Act. (U)

17. Immediate removal actions are undertaken only ifa
response is needed within hours or days to prevent or
mitigate significant harm to human health or the environ-
ment and such actions will not otherwise be provided on a
timely basis. (U)

18. Generally, immediate removal actions cannot con-
tinue for longer than 6 months or exceed $1,000,000 in
costs unless a special exception is given by the Admin-
istrator of EPA. (U)

19. EPA's participation in removal actions is controlled
by an On Scene Coordinator. (U)

20. The On Scene Coordinator directs federal removal
efforts financed by the Act and coordinates all other efforts
at the scene of the removal activity. (U)

21. Federally funded removal actions are performed by
independent contractors selected by the On Scene Co-
ordinator from a list of contractors which EPA has deter-
mined have the resources and experience to carry out the
removal. (U)

22. In February of 1982, the Department of Environ-
mental Resources and EPA inspected the Drake site and
observed over 3,000 drums, and various reactors and
tanks, containing hazardous chemicals. (U)

23. Many of said drums, reactors and tanks were in a
deteriorating condition. (U)

24. Previous investigations at the Drake site had re-
vealed ground water contamination and poor air quality in
the area

Z2la

25. After these investigations, the EPA, through its On
Scene Coordinator, concluded that there existed at the
Drake site an imminent threat of fire and explosion as well
as a threat of direct public contact with hazardous chemicals.
all of which constituted a severe threat to the public health.
(U)

26. The City of Lock Haven, with a population of
approximately 15,000, is situated immediately to the north.
west, and northeast of the Drake site. (U)

27. Areas to the south, southeast, and east of the Drake
site are sparsely populated.

28. The EPA’s On Scene Coordinator issued oral and
written demands to the owners of Drake Chemicals, Inc. to
clean up the site.

29. When the owners of Drake Chemicals refused to
clean up the Drake site, the On Scene Coordinator re-
quested approval from the EPA Office of Emergency and
Remedial Response to undertake an immediate removal
action. (U)

30. On February 26, 1982, the On Scene Coordinator
received authorization to undertake immediate removal
activities at the Drake site. (U)

31. Thereafter, in conjunction with the Department of
Environmental Resources, the EPA began emergency re-
moval activities which included the removal and securing of
all materials and conditions on the Drake site that could
pose an imminent hazard. (U)

32. The Drake Chemicals site was one of the most
hazardous sites the EPA has undertaken to clean up to this
date under the Act’s program.

33. An Emergency Response Team of the EPA was
involved and on site during major portions of the removal
activities at the Drake site. (U)

34. The Emergency Response Team provided technical
and scientific assistance to the On Scene Coordinator. (U)

35. Also involved in the cleanup of the Drake site was a
Technical Assistance Team which provided logistical and

22a

technical support to the EPA. (U)

36. The On Scene Coordinator utilized the Technical
Assistance Team to obtain information from outside sources
on chemical! waste disposal methods.

37. On February 28. 1982. the EPA, through its On
Scene Coordinator, signed an agreement with OH Materials
captioned “Notice to Proceed with Emergency Response to
'Wazardous Substance Release” (hereinafter “Notice to
Proceed ). (U)

38 The EPA hired OH Materials as its prime contractor
at the Drake site as a result of OH Materials’ expertise in
chemical waste disposal techniques

39. The Notice to Proceed is a preliminary contractual
instrument which represents a time and materials contract
whereby payment for contractor services is made on the
basis of direct labor hours at fixed hourly rates and mat-
erials, subcontractor, and travel costs. (U)

40. Pursuant to the Notice to Proceed the On Scene
Coordinator retained responsibility for determining what
would be done. the means and methods employed in
disposing of waste, and the contractor's expenditures for
material and manpower.

41. The Notice to Proceed provided that OH Materials
was to furnish the necessary personnel, materials, services.
facilities and otherwise do all things necessary for or
incident to the performance of the work set forth in the
“Scope of Work” contained in the Notice to Proceed.

42. The On Scene Coordinator was responsible for
directing and monitoring the activities of OH Materials at
the Drake Site.

43. The duties of the On Scene Coordinator at the
Drake site included:

A. Making assignments of major tasks to the various
contractors on site:

B. Consulting with independent experts such as
private agencies. Emergency Response Team. Penns-
ylvania Department of Environmenta! Resources and

23a

the Technical Assistance Team regarding technica!
solutions to the cleanup problem.

C. Approval of task execution.

D. Acceptance of task completion.

E. Cost control.

44. Dr. Joseph P. Lafornara, at the time acting chief of
the Analytical Support Section, EPA Emergency Response
Team, was at the Drake site on March 3 through March 5,
1982, and on March 30, 1982.

45. Andre P. Zownir, EPA Emergency Response Team
environmental engineer, was at the Drake site on March 3-
5, 8-12, and 17-19, 1982. (U)

46. Bruce Potoka, EPA environmental scientist, was at
the Drake site on March 3-5, 8-11, and 15-20, 1982. (U)

47. Thomas Massey, EPA On Scene Coordinator, was
at the Drake site on March 2-5, 8-11, and 17, 1982. (U)

48. Benton Wilmouth, EPA On Scene Coordinator,
was at the Drake site on March 3-5, 9-12, and 15-24, 1982.
(U)

49. Jack Downey, EPA On Scene Coordinator, was at
the Drake site March 4, 5, 8-10, 21-24, 1982 (U)

50. All actions of EPA, referenced herein, were per-
formed by EPA employees, acting within the scope of their
respective employment. (U)

51. The On Scene Coordinator assigned to the Emer-
gency Response Team the task of preparing at site safety
plan.

52. The On Scene Coordinator at the Drake site was
responsible for coordination of the implementation of the
site safety plan to ensure that workers and regulatory
personnel conducted their operations in a safe manner.

53. Gne of the most serious hazards existing at the
Drake site was a tank containing oleum. (U)

54. Oleum is the common name for HzSQ:+SO.. It is
concentrated sulfuric acid with the sulfate radical dissolved
in it at 30-70% levels. (U)

55. Oleum is extrernely reactive with a wide range of

24a

compounds and is extrernely sensitive to moisture, pro-
ducing a fuming reaction caused by the reaction of water
and the sulfate radical. (U)

56. The oleum on the Drake site was stored in a carbon
steel tank having a total capacity of approximately 5,000
gallons. (U)

57. The tank was an old railroad tank car which had its
wheels removed.

58. When oleum is stored in a carbon steel tank, the
sulfate radicai will slowly react with the tank’s side walls,
producing iron sulfate salts which fall to the bottom of the
tank as a sludge. (U)

59. The oleum tank was sitting on two concrete ped-
estals. (U)

60. The pedestals were approximately eight feet tall.

61. The oleum tank was over seven feet tall from the
bottom of the tank to the top of the manway (aperture).

62. At the time of commencement of the removal
activities at the Drake site the oleum tank was venting
directly into the atmosphere and posed a major threat of
fire. explosion or release of pollutants into the air. (U)

63. The On Site Coordinator determined that before
the hazard posed by the oleum tank could be addressed,
the amount of materials contained in the tank had to be
assessed. (U)

64. On or before March 8, 1982, the On Scene
Coordinator assigned OH Materials the task of determining
the quantity of oleum contained within the oleum tank. (U)

65. OH Materials performed this task through a method
known as “sticking” where a dipstick or rod is inserted into
the material to determine its depth. (U)

66. Visual assessment of the contents of the oleum
tank was hampered by the fumes emanating from the tank.
(U)

67. Accurate assessment of the contents of the oleum
tank was difficult because the tank was on pedestals.

68. OH Materials personnel reported to the On Scene

25a

Coordinator that the tank contained four inches of sludge
and two inches of liquid oleum. (U)

69. It was estimated that the tank contained approx-
imately 110 gallons of product. (U)

70. The On Scene Coordinator knew of the method
employed in assessing the contents of the oleum tank.

71. The On Scene Coordinator was advised by OH
Materials personnel that the tank could possibly contain
sludge build-up at the ends of the tank which would mean
that the actual volume of oleum in the tank was greater than
the estimated volume.

72. The 110 gallons of oleum initially estimated to be
contained within the tank was a sufficient quantity of oleum
to produce a substantial release of acid, posing hazards to
the public.

73. The On Scene Coordinator, Environmental Re-
sponse Team personnel, Technical Assistance Team per-
sonnel, Department of Environmental Resources person-
nel, and OH Materials personnel discussed appropriate
methods of disposing of the oleum. (U)

74. Thomas Massey, Dr. Joseph Lafornara, and Andre
Zownir were EPA employees involved in decision making
concerning methods to be employed in neutralization and
disposal of the contents of the oleum tank on the Drake site.
(U)

75. OH Materials personnel suggested to the On Scene
Coordinator that the oleum tank be removed from its
pedestals prior to neutralization. (U)

76. OH Materials personnel suggested to the On Scene
Coordinator that the oleum tank be removed from the site
to a remote location prior to neutralization of its contents.
(U)

77. OH Materials personnel also suggested as another
option that the oleum tank be placed on the ground at the
rear of the Drake site prior to neutralization.

78. The On Site Coordinator rejected these recom-
mendations. (U)

26a

79. In considering OH Materials suggestion that the
tank be removed from the pedestals, the On Scene Coor-
dinator considered the potential risks posed by an attempt
to remove the tank.

80. The On Scene Coordinator considered factors
such as the questionable stability of the tank and that no
assurances could be given by OH Materials that the tank
would not rupture or explode either during the removal
process or during the attempt to relocate the tank.

81. Because of its location and the lack of specific
information on the tank's age or previous use, it was difficult
readily to determine the structural integrity of the tank or to
guage its stability on the pedestals.

82. The On Scene Coordinator ordered no investiga-
tion into the structural integrity of the oleum tank before
rejecting OH Materials’ recommendation of removing the
tank from its pedestals prior to neutralization.

83. The risk of moving the tank by crane could have
been minimized by placing the tank ina cradle while it was
being lifted off its pedestals.

84 The oleum tank could then have been placed ina
box ona truck designed to contain any oleum released from
the tank during transportation.

85, The oleum tank could then have been placed at the
rear of the site in a pre-dug ditch and rotated so that its
manway (aperture) was facing in a generally horizontal
position.

86. The tank could then have been covered with dirt,
leaving the manway exposed, so as to minimize any
movement of the tank during neutralization.

87 After assessing the risks and benefits of removing
the tank from the pedestals, the On Scene Coordinator
determined that it was safer to neutralize the tank on the
pedestals. The following are some of the reasons why the
On Scene Coordinator rejected OH Materials recommen-
dation of moving the tank:

(a) There was a possibility that the tank would rupture or

2/a

explode during its removal and relocation on-site,

(b) the soil at the rear of the site, the area OH Materials
suggested as the appropriate place for neutralizing the
oleum tank. was unstable since it was believed to contain
filled-in abandoned lagoons of chemicals:

(c) the area at the rear of the site was close to the
American Chemical! Plant:

(d) there was a possibility that the tank would rupture or
explode during its relocation off-site and cause serious
harm to the surrounding population and property.

88 On or before March 8, 1982, the On Scene
Coordinator directed that the oleum be neutralized in
place. (U) a

89. Once the decision was made to neutralize the
oleum tank on its pedestals, the On Scene Coordinator
assigned OH Materials the task of recommending a pro-
cedure for the neutralization.

90. OH Materials recommended to the On Scene
Coordinator that a proper procedure for neutralizing the
tank was slowly to drain all of the liquid oleum from the tank
through the bottom yalve into a container of water. This
process would allow the neutralization of the oleum in a
controlled fashion. Following completion of the draining of
the liquid oleum, the sludge could then be neutralized by
slowly adding water to the tank and aliowing it to react with
the oleum-impregnated sludge. The tank could then be
drained following the completion of the chemical reaction.
This process would be repeated until all of the sludge was
neutralized.

91. The On Scene Coordinator, Ernergency Response
Team personnel. Technical Response Team personnel.
Department of Environmental Resources personnel, and
OH Materials personne! discussed the neutralization pro-
cedures suggested by OH Materials.

92. The On Scene Coordinator approved the neutral-
zation method suggested by OH Materials and authorized
OH Materials to proceed with the neutralization

28a

93. On March 4, 1982, Jay E. Ort, a hydrogeologist
employed by the Commonwealth of Pennsylvania, issued a
report entitled “Recommendations on Meterological Con-
trols at Drake Chemicals.”

94. In that report, Mr. Ort recommended that the more
hazardous operations at the Drake site, such as those
involving the oleum, should be done with a north wind in
excess of 3 knots on a bright sunny day.

95. EPA was in possession of Mr. Ort’s report and
recommendations prior to March 15, 1982.

96. EPA was on notice of the contents of Ort’s report
and recommendations prior to March 15, 1982.

97. The method employed in neutralizing the oleum
initially involved draining all liquid oleum from the tank
through a valve at the bottom of the tank. (U)

98. Then water was added to the tank, half a cup or less
at a time. (U)

99. The free-flowing liquid was then allowed to drain
out of the valve at the bottom of the tank. (U)

100. The free-flowing liquid was allowed to drain in a
controlled quantity into a tank of water, producing neutral-
ization of the oleum. (U)

101. A thimbleful of the oleum draining from the tank
would react with the water in the tub below the tank with
sufficient force so as to shake the tub and its contents
weighing over 4,000 Ibs.

102. On March 15, 1982, while this operation for
oleum neutralization was being conducted, a packing nut
on the valve through which the oleum was draining came
loose. (U)

103. As a result of the loosening of the packing valve,
an uncontrolled flow of oleum commenced from the valve
into the water tub below.

104. Approximately one quart to one gallon of oleum
dropped into the water tub below the oleum tank.

105. OH Materials personnel immediately tightened
the valve, stopping the flow of oleum into the water. (U)

29a

106. The oleum hitting the water tub produced a dense
cloud of sulfur trioxide, sulfuric acid droplets, mist, and
aerosol. (U)

107. The acid cloud migrated off-site. (U)

108. Five Pennsylvania Department of Transporta-
tion workers working on Second Avenue in Lock Haven
were exposed to the acid cloud on March 15, 1982. (U)

109. The Pennsylvania Department of Transportation
workers suffered respiratory distress.

110. Following the release of March 15, 1982, the On
Scene Coordinator, OH Materials, and others discussed the
cause of the release.

111. Following the acid release of March 15, 1982,OH
Materials did not state any objections to the EPA regarding
the continued neutralization of the oleum tank in the
manner originally approved by the the On Scene Coor-
dinator.

112. It was concluded that the neutralization activities
previously used should continue.

113. Following the acid release of March 15, 1982, the
On Scene Coordinator instructed OH Materials to continue
oleum neutralization in the manner originally approved by
the On Scene Coordinator. (U)

114. Inthe regular course of the EPA’s business on the
Drake site, the On Scene Coordinator regularly prepared
Pollution Reports documenting the situation, actions taken
and future plans for the removal action. (U)

115. The Pollution Reports were prepared at or about
the time of the events they record. (U)

116. Pollution Report No. 13, dated March 16, 1982,
states: “If conditions are acceptable continue with work on
Oleum tank No. 26.” (U)

117. Pollution Report 14, dated March 17, 1982,
states: “Work on Oleum tank #26 if gas line has been
repaired.”

118. After March 15, 1982, OH Materials continued
gradually to add water to the oleum tank. (U)

30a

119. The product was then drained through the bottom
of the tank. (U)

120. While the tank was being filled with water, fire-
men from the Lock Haven Fire Department directed fire
hoses on the tank to cool the tank as the neutralization
process was being performed. (U)

121. Personnel of the Department of Environmental
Resources monitored air quality during the neutralization
activities on the oleum tank.

122. When evidence of reaction between water and the
contents (i.e. fuming) ceased. the tank was filled half-full of
water. (U)

123. The tank was then allowed to stand for six hours,
with no reaction being noted. (U)

124. The tank was then completely filled with water
and allowed to stand overnight. (U)

125. The contents of the tank were then drained
through the valve at the botom of the tank. (U)

126. The valve at the bottom of the tank had become
clogged with sludge on previous days.

127. The EPA was aware that the valve had become
clogged with sludge on previous days.

128. On March 23, 1982, drainage ceased because of
sludge blocking the valve at the bottom of the tank. (U)

129. To clear the sludge from the valve and allow
drainage to continue, OH Materials personnel inserted rods
through the manway at the top of the oleum tank. (U)

130. The rods were inserted with the knowledge of the
EPA.

131. Following this insertion of rods through the man-
way, on March 23, 1982, at 3:57 P.M., a steam explosion
occurred in the oleum tank. (U)

132. A large cloud of sulfer trioxide and sulfuric acid, in
the form of droplets, mist and aerosol, vented out of the
manway at the top of the tank. (U)

133. The release occurred over approximately a 15
second span. (U)

3la

134. The release was punctuated by three distinct
explosions. (U)

135. The cloud of sulfer trioxide and sulfuric acid rose
approximately 40 to 50 feet into the air.

136. The oleum tank bounced approximately one inch
off its pedestals several times during the course of the
explosive release of March 23, 1982.

137. The oleum tank displayed no apparent damage
from the explosion.

138. South-southwest winds were prevailing on March
23. 1982. blowing generally north-northeast. (U)

139. Blown by the wind, the acid cloud released from
the oleum tank migrated off site into the City of Lock
Haven.

140. The acid cloud of March 23, 1982, caused sur-
face damage to over 500 motor vehicles, damaged an
airplane, and damaged several buildings. (U)

141. On behalf of OH Materials, U.S.F. & G. paid
claims totalling $133,296.27 arising out of the release of
the acid cloud of March 23, 1982.

142. USF. & G. hired Crawford and Company to
adjust the claims arising out of damage caused by the acid
cloud of March 23, 1982.

143. The hiring of Crawford and Company facilitated
the prompt settlement of property damage claims arising
out of the acid release incident of March 23, 1982.

144. On March 24, 1982, the On Scene Coordinator
met with officials from the Department of Environmental
Resources, and agreed that work prone to release of vapors
would be done only on good dispersion days between
10:00 A.M. and 5:30 P.M., and on days when the wind was
not blowing toward the City. (U)

145. Following the incident of March 23, 1982, the
interior of the oleum tank was inspected through the use of
mirrors and a camera. (U)

146. Visual inspection and photographic examination
of the inside of the tank showed a residual! crust line

32a

approximately halfway up the side of the tank. (U)

147. Based on the acid release of March 23. 1982 and
the investigation conducted subsequent to the release. it
can reasonably be concluded that the tank was roughly
one-half full of 65% oleum. (U)

148. It is estimated that in the March 23, 1982 release
incident, approximately 2.000 gallons of oleum reacted
with 2,000 gallons of water to produce 4.000 gallons of
80% sulfuric acid. (U)

149. In the March 23, 1982 release incident. approx-
imately 2,000 gallons of 80% sulfuric acid were vented
through the manway of the tank.

150. Removing the oleum tank from the pedestals on
which it sat and placing it on the ground at the rear of the
site prior to neutralization would have had the following
advantages over performing the neutralization with the
tank on its pedestals:

A. The contents of the tank could have been more
accurately and easily measured:

B. The contents of the tank could have been removed
manually more easily prior to neutralization:

C. Fire hoses could have been more effectively
utilized to hose down any acid clouds released assuming
that the firemen would utilize their hoses in the event of
an explosion of the magnitude involved in the March
23. 1982 incident:

D. Rotating the tank roughly 90 degrees along its
longitudinal axis, as could have been done if the tank
had been placed on the ground, would have diminished
the amount of the sludge in the tank coming in contact
with the water placed into the tank. thereby diminishing
any reaction between water and sludge.

151. The risk to the surrounding population of the
oleum neutralization operation would have been reduced
by conducting the operation only in periods when north
winds prevailed

152. The United States EPA knew or should have

33a

known that the work of OH Materials at the Drake site
involved a special danger to the public, inherent in the
work, and was likely to create during its progress a peculiar
risk of physical harm to the public unless special pre-
cautions were taken.

153. U.S.F. & G. timely filed a claim with the EPA,
seeking administrative settlement in the amount of
$152,291.25, pursuant to the provisions of the Federal
Tort Claims Act, 28 U.S.C. §1346(b) and 2671, et seq. (U)

154. That claim was rejected by decision dated March
21, 1984. (U)

155. At no time did U.S.F. & G submit a claim to the
EPA for a precise amount of damages regarding the per-
sonal injuries which occurred as a result of the acid cloud
release of March 15, 1982.

III. Discussion

A. The Discretionary Function Exception.

The United States argues that the conduct of the EPA in
cleaning the oleum tank was a discretionary function and,
therefore, the United States cannot be held liable under the
Federal Tort Claims Act, 28 U.S.C. §2671, et seq., for any
negligence which may have been involved in the cleanup of
the Drake Site. We previously considered this argument in
conjunction with a motion for summary judgment and by
an opinion dated April 16, 1986 held that the discretionary
function exception does not apply in this case. We refer the
reader to that opinion for our analysis of the issue. After
hearing the evidence, our view has not changed.

The decision by the United States to undertake to clean
up the Drake site would fall within the discretionary
function exception; however, this is not the decision which
is being challenged in this case. The decision challenged

involves the selection of the method used to remove the
hazard posed by a tank containing oleum, a substance

highly reactive to water. Perhaps the United States could
have ignored the Drake site, but once it chose to clean up
the hazardous wastes there. its decisions regarding the

34a

procedures to be followed were not of the nature and
quality that Congress intended to shield from tort liability.
United States vs. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 104 S. Ct. 2755 (1984). The
United States argues that it cannot be held liable for any
incidents which occurred as a result of the initial decision to
clean up the Drake site. The results of such a broad
interpretation of the discretionary function exception could
lead to results which Conaress did not intend. The United
States must be held accountable for the acts of its workers
who carry out tasks on an operational level. The On Scene
Coordinator's role in the cleanup operation was such that
his conduct is not excluded from a claim brought pursuant
to the Federal Tort Claims Act.

B. The Acid Cloud Release of March 15, 1982.

Five Pennsylvania Department of Transportation em-
ployees were injured as a result of the release of a cloud of
sulphuric acid on March 15, 1982 during the neutraliza-
tion of the tank containing oleum. U.S.F. & G. is sub-
rogated to the personal injury claims of these workers and
argues that the United States’ negligence was the cause of
the injuries. The United States asserts that this Court lacks
jurisdiction over the personal injury claims because U.S F
& G. failed to file an administrative claim which complied
with the Federal Tort Claims Act, 28 U.S.C. §2675. This
section provides that

(a) An action shall not be instituted upon a claim
against the United States for money damages for... per-
sonal injury...caused by the negligent or wronaful act or
omission of any employee of the Government... unless
the claimant shall have first presented the claim to the
ippropriate Federal agency,

(b) Action under this section shall not be instituted
for any sum in excess of the amount of the claim

presented to the federal agency. except where the
1;

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rease mount is Dased up Newiy iscovers

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35a

presenting the claim to the federal agency, or upon
allegation and proof of intervening facts, relating to the
amount of the claim
28 U.S.C §2675
The purpose of requiring tort claims to be filed first with the
appropriate federal agency is to lessen the burden upon the
federal courts by permitting the agencies to settle such
claims pursuant to 28 U.S.C. §2672. Title 28 of the Code
of Federa! Regulations at §14.2(a) provides that
For purposes of the provisions of 28 U.S.C. §2401(b)
and 2672. a claim shall be deemed to have been
presented when a Federal agency receives from a
claimant...an executed Standard Form 95 or other
written notification of an incident, accompanied by a
claim for money damages in a sur certain for injury to
or loss of property. personal injury, or death alleged to
have occurred by reason of the incident. (emphasis
added)
It is undisputed that on or about June 14, 1982,U.S.F.&G
submitted a Standard Form 95 which claimed damages
solely for the accident of March 23, 1982. By letter dated
January 11, 1983. U.S.F. & G. first notified the United
States of the five personal injury claims arising out the
March 15. 1982 accident. The specific sums for damages
claimed by USF. & G. in its correspondence with the
United States did not include the $5,000 currently being
aimed for these personal injuries. It is undisputed that at
no time did U.S.F. & G. submit a claim to the EPA for a
precise dollar amount of damages regarding the personal
njuries. U.S.F. & G. did not comp!y with the requirements
of 28 CFR. §14.2 and 28 U.S.C. §2675; therefore, this
Court lacks jurisdiction over the per#onal injury claims. 28
USC. §2675(a): Bialowas vs. United States, 443 F. 2d
1047 (3d Cir. 1971
USF &G aarues that there is ¢recedent for permitting

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ry roiied at
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36a

administrative level. We have reviewed the authorities cited
by U.S.F. & G. and find that none support U.S.F. & G.’s
argument. In the case of Tucker vs. United States Postal
Service, 676 F.2d 954 (3d Cir. 1982) the Court of Appeals
held that a Form 95 was sufficient for purposes of the
Federal Tort Claims Act despite the fact that Plaintiff failed
to forward itemized medical bills. The facts in Tucker are
quite different from those in this case because in Tucker the
Plaintiff included the amounts claimed for personal injury
and property damage in her Form 95. As stated above.
U.S.F. & G. has not submitted an administrative claim
containing the amounts demanded for personal injuries
arising out of the March 15, 1982 accident. U.S.F. & G. has
failed to set forth facts sufficient to establish that there has
been newly discovered evidence or intervening facts which
entitle it to have the personal injury claims heard by this
Court pursuant to 28 U.S.C. § 2675(b). We will enter an
order dismissing without prejudice for lack of jurisdiction
the personal injury claims asserted by U.S.F. & G.

C. The Acid Cloud Release of March 23.1982. —

U.S.F. & G. asserts that the United States is liable for the
property damage which occurred as a result of the acid
cloud release of March 23, 1982 based upon the theory of
negligence. In order to maintain an action in negligence,
the Plaintiff must prove the existence of a legal duty flowing
from the Defendant to the Plaintiff. a bre ach of that duty,
and a causal connection between the breach and the injury.
Morena vs. South Hills Health System, 462 A.2d 680, 501
Pa. 634 (1983). The United States owed the public the duty
of reasonable care under all the circumstances. and reason-
able care where a hazardous activity is involved is a higher
degree of care than would be required in the performance
of ordinary activities. Koelsch vs. The Philadelphia Com-
pany. 152 Pa. 355. 362,25 A. 522 quoted in Maternia vs.
Pennsylvania Railroad Company, 56 A. 2d 233, 235. 358
Pa. 149, 153 (1938).

U.S.F. & G. argues that the United States breached its

37a

duty of care in three respects. First, U.S.F. & G. asserts that
the United Staies was negligent in its failure to accept OH
Materials’ recommendation that the oleum tank be re-
moved from its pedestals before neutralization was at-
tempted. The relevant question is whether or not the EPA's
decision to add water to the tank while it was on pedestals
was reasonable based upon information known io the EPA
at the time the decision was made. The EPA relied upon OH
Materials’ estimate that there were 110 gallons of oleum in
the tank. We now know that there were approximately
2.000 gallons of oleum in the tank. OH Materials did not
give OH Materials any reason to believe that its estimate of
110 gallons was incorrect. OH Materials is a company
specializing in the cleanup and disposal of hazardous
waste. In our view it was reasonable for the On Scene
Coordinator to rely on OH Materials’ estimate.

Based upon the estimate that the tank contained 110
gallons of oleum and faced with the options of neutralizing
it either off site, at another location on site or on its
pedestals, the On Scene Coordinator chose to neutralize
the tank on its pedestals. The tank car was old and could
have ruptured in transit, causing a more serious accident
than the one which occurred. The presence of snow and ice
on the site increased the risk of a serious hazard if the tank
were to rupture. The on site location to which OH Materials
proposed to move the tank was in close proximity to
another chemical plant and if a fire had commenced during
the neutralization of the tank there was a risk that the other
chemical plant could have been affected, thus causing
greater chemical hazards to the public. It was unclear that
the ground at the site OH Materials proposed to use was not
weakened by the presence of abandoned chemical pits. For
these reasons, the On Scene Coordinator's decision not to
attempt to move the tank before neutralizing it was reason-
able.

U.S.F. & G. has presented evidence that it would have
been safer to perform the neutralization with the tank on its

38a

side at a location on the ground where bulldozers and fire
hoses could have more easily contained any release that
might have occurred. At this time there is more information
than there was at the commencement of the cleanup of the
Drake site in support of placing the tank on the ground
before neutralization. For example. we now suspect that
the tank could have withstood the stress of being moved by
crane and truck because it withstood the force of the
explosions of March 23, 1982. However, information now
available to the EPA is not relevant to the reasonableness of
the EPA's choice. This choice was reasonable, based upon
information available at the time the choice was made.
Even if this Court had concluded that the On Scene
Coordinator's choice of the method of neutralization was
negligent, we would not find the EPA liable because U.S.F
& G. has failed to establish a causal connection between the
decision not to move the tank and the accident which
occurred. Negligent conduct is a cause of injury if it is a
substantial factor in bringing about the injury. Restatement
(Second) of Torts §431; Whitner vs. Von Hintz, 437 Pa.
448. 263 A.2d 889 (1970). Plaintiff need not show with
absolute certainty that the negligence caused the injury
Rosario vs. American Export-Isbrandtsen Lines, Inc., 395
F. Supp. 1192-1210 (E.D. Pa. 1975). The element of
causation would be met if Plaintiff showed a substantial
possibility that the harm could have been avoided and that
the negligence eliminated the possibility of avoiding the
harm. ID. USF. & G_ has failed to show that there is
substantial possibility or even that it is more likely than not
that there would have been no release of an acid cloud had
the oleum tank been taken off the pedestals. One of the
U.S.F. & G's witnesses testified in answer to this Court's
+}

questions that releases during hazardous waste cleanups

, ' ' ,
are common. The tank contained a large quantity of oleum
Siu lge which created 1 Very volatile situation. | S | & GG. Ss
expert witness, Samuei iInsala testified inresponse t

39a

would not have exploded had the tank been removed
Removing the oleum frorn the tank involved such great
danger that it is entirely possible an accident of equal or
greater seriousness might have occurred if the tank had
been moved: therefore, the causal connection between acts
asserted to be negligent and the occurrence of the accident
has not been proved

U.S.F. & G's second argument is that the United States
was negligent in continuing after the March 15, 1982
accident to neutralize the oleum by adding water to the
tank. It is unclear from the evidence why the same method
of neutralization was used after the March 15, 1982
accident as was used before the accident. Nor did the
evidence clarify whether once water had been added to the
tank it was too late to commence the use of a different
method of neutralization. There was no evidence that after
March 15, 1982 accident OH Materials warned or advised
the United States to try a different method of neutralization
such as adding sulfuric acid or removing the tank from its
pedestals. Based upon the evidence presented at trial, we
cannot conclude that the United States was unreasonable
in continuing to direct the neutralization of the tank in the
same method used both before and after the March 15
1982 accident

U.S.F. & G's third argument 1s that the United States
breached its duty of care by conducting the neutralization
of the tank without regard to wind conditions. The area to
the north, west and northeast of the Drake site was much
more heavily populated than the area to the south, south-
east and east of the site It is undisputed that the wind was
blowing in the direction of the City of Lock Haven on March
23, 1982 Had the wind been blowing in the opposite
lirection on that date much less property damage would
have occurred. In conducting a cleanup of materials whic!

suld explode and

reiease Nazardous chemicals into the

; , ‘
17 the entities responsib t yy tne j ‘ '! in have the tut

, ‘4 ;
; ’ > \ ¥ ; . ' ; . ; ¢ wr
Ke Ml TeEASONADL t Mul : 1s ’ ‘ lt

40a

safety. One of the most basic of these precautions ‘ts to
monitor the direction of the wind and to perform oper-
ations which could result in the release of hazardous
materials into the air when the wind is blowing away from
heavily populated areas. There was no expert testimony
regarding whether it would be safe to perform such oper-
ations when there is no wind and we will not speculate on
this point. It is conceivable that under certain circum-
stances the hazard posed by a tank would be so great that
removal operations would have to proceed immediately
and without regard to wind conditions, but this case did not
present such a situation. There is no evidence that the
neutralization operations would have been more danger-
ous had the addition of water, draining of the tank, un-
clogging of the valve, and other procedures involved in the
neutralization been delayed so as to be performed on days
with favorable wind conditions.

It could be argued that the parties did not have the duty
to take wind into account in directing the neutralization of
the oleum tank. because at the commencement of the
neutralization the quantity of oleum in the tank was in-
accurately estimated to be 110 gallons. In our view, oleum
is such a dangerous substance that 110 gallons of it should
not have been neutralized without regard for the wind
conditions.

The question arises whether the United States or OH
Materials had the responsibility for considering the wind
conditions during neutralization. The parties do not dispute
that OH Materials was acting as an independent contractor
The United States cannot be held liable under the Federal!
Tort Claims Act for the negligence of its independent
contractors. 28 U.S.C. §1346(b). § 2671: United States vs
Orleans, 425 U.S. 807, 813-814 (1976); Loque vs. United
States 412 US. 521. 527 (1973). Nor can the United
States be held liable under the Federal Tort Claims Act on
principles of strict liability for damage arising out of the
performance of ultrahazardous activities. Laird vs. Nelms

4la

406 U.S. 797. 801 (1972). Thus, OH Materials must prove
negligence cn the part of the United States in order to
recover.

The Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980, 42 U.S.C. §9601, et
_seq. (“The Act”) assigns to the President who has dele-
gated to the EPA responsibility for conducting cleanup
operations such as the one performed at the Drake Site. The
EPA has the power to delegate certain tasks to indep-
endent contractors; however, in this case the EPA retained
ultimate authority to select the cleanup methods and super-
vise the cleanup operations. The EPA retained a certain
amount of control over the safety procedures to be followed
during the cleanup as evidenced by the fact that OH
Materials was not entirely free to do the work in any manner
it chose. DiSalvatore vs. United States, 456 F. Supp. 1079
(E.D. Pa. 1978).

One who entrusts work to an independent contractor,

but who retains the control of any part of the work, is

subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable
care, which is caused by his failure to exercise his contro!
with reasonable care.
Restatement (Second) of Torts §414. The EPA knew of a
report prepared by J. E. Ort, a hydrogeologist employed by
the Commonwealth of Pennsylvania in which Mr. Ort
recommended that the more harzardous operations at the
Drake site. such as those involving the oleum, be per-
formed with a north wind in excess of 3 knots on a bright
sunny day. Even if the EPA had not been aware of this
report, it should have been aware of the importance of
paying attention to wind conditions. The EPA knew that
neutralization of the oleum tank involved a special danger
to the public and should have done everything within its
power to minimize the risk of harm to the public by taking
precautions such as instructing OH Materials to perform
hazardous operations on days with favorable wind con-

42a

ditions and checking to see that OH Materials followed such
instructions. The EPA did not direct OH materials to pay
attention to wind conditions nor did the EPA take the
necessary precautions itself until after the accident of
March 23, 1982. On March 24, 1982, the EPA decided that
work prone to release of vapors would be done only on days
when the wind was not blowing toward the -city. This
decision should have been made before neutralization of
the oleum tank began. Clearly, the EPA breached its duty of
care before March 24, 1982 in permitting neutralization to
proceed without regard to wind conditions.

We next address the question of OH Materials’ respon-
sibility for considering the wind conditions during neutral-
ization. The contract between the EPA and OH Materials
provides that OH Materials shall furnish the “...necessary
personnel, materials, services, facilities, and otherwise do
all things necessary for or incident to the performance of
the work” described in the document entitled “Scope of
Work’. Plaintiff's Exhibit P-2. It appears to this Court that
there is no reference in the Scope of Work to the oleum
tank; however, included in the Scope of Work is the
following sentence: “The contractor shall be responsible for
the staging and preparation for disposal of all waste con-
taining drums on site, as determined by the OSC or his
designee.” It is possible that the parties intended the term
“drum” to include the oleum tank. Despite the apparent
vagueness of the contract, OH Materials and the EPA
viewed the cleanup of the oleum tank as within the scope of
work to be performed by OH Materials. It could be said that
the parties orally and through their conduct modified the
contract so as to provide that OH Materials be responsible
for cleaning the tank Bernhart vs. Dollar Rent A Car
Systems, Inc., 595 F.2d 914 (3d Cir. 1979): Appalachian
Power Co. vs. Federal Power Commission, 529 F.2d 342.
350 (D.C. Cir. 1976), cert. denied, 429 U.S. 816. Given
that OH Materials was responsible under the contract for

leaning the oleum tank we return to the language at page

43a

one of the contract which states that OH Materials *...shall
furnish the necessary...services...and otherwise do all things
necessary for or incident to the performance of the work..”
Plaintiffs Exhibit P-2. In our view, considering wind con-
ditions was a necessary aspect of performing the cleanup of
the oleum tank. OH Materials was responsible for devising
the plan for neutralization of the oleum tank and although
OH Materials did not have the power to make final deter-
mination of the neutralization method used, it did have a
duty properly and safely to perform the operations which it
undertook. OH Materials should have checked the wind
direction and accordingly timed procedures such as inser-
ting rods into the tank, adding water to the tank, and taking
other steps which increased the risk that dangerous sub-
stances would be released so that these procedures would
not take place when the wind was blowing toward Lock
Haven. The decisions regarding the day to day operations
at the oleum tank were reached during meetings between
officials of the EPA and of OH Materials. There was no
evidence that OH Materials ever advised the EPA that
either OH Materials or the EPA should refrain from per-
forming the most hazardous operations when the wind was
blowing in the direction of Lock Haven. OH Materials
breached its duty of care before March 24, 1982 in
conducting neutralization of the oleum tank without regard
to wind conditions.

U.S.F. & G argues that the United States should be held
liable for actions of OH Materials under principles set forth
in sections 413, 416, 427 and 427A of the Restatement
(Second) of Torts. These sections contain exceptions to the
general rule that an employer is not liable for the negli-
gence of its independent contractor. We are not persuaded
by U.S.F. & G.’s attempt to distinguish the principles
described in sections 413, 416, 427 and 427A of the
Restatement from strict liability or vicarious liability. The
doctrine which U.S.F. & G. wishes us to apply essentially
states that an ernployer is liable for the negligence of the

44a

independent contractor irrespective of whether the em-
ployer has been at fault. Gibson vs. United States, 567 F.2d
1237, 1244 (3d Cir. 1977). The Court of Appeals has
rejected sections 416 and 427 of the Restatement (Second)
of Torts as a basis for recovery under the Federal Tort
Claims Act. Id. Whether this doctrine is labelled strict
liability or vicarious liability, it is not properly a basis for
recovery against the United States under the Federal Tort
Claims Act. Gibson vs. United States, 567 F.2d 1237 (3d
Cir. 1977); Laird vs. Nelms, 406 U.S. 797 (1972).

It could be argued that OH Materials’ erroneous es-
timate of the quantity of oleum in the tank and not the
parties’ inattention to wind was the cause of the damage. It
does not appear from the evidence that any more attention
would have been paid toward wind conditions had the
parties known that the tank contained 2,000 gallons of
oleum instead of 110 gallons. The fact that the neutral-
ization of the tank proceeded on March 23, 1982 while the
wind was blowing toward Lock Haven was a substantial
factor in bringing about the property damage which occurred.

Having concluded that both the EPA and OH Materials
were negligent in failing to take wind into account with
regard to the neutralization of the oleum tank and that their
combined negligence was a substantial factor in bringing
about the damage, we address the question of their
respective causal negligence. OH Materials was an expert in
cleaning up hazardous waste, knew or should have known
of the importance of paying attention to wind conditions
and should at least have raised this point with the EPA.
However, OH Materials did not have the power to make
final decisions regarding the cleanup operations. The
EPA's negligence was a greater cause of the damages tha»
that of OH Materials because the EPA retained the ultimate
power to make decisions regarding the cleanup operations.
In our view, 40% of the causal negligence is attributable to
OH Materials and 60% of the causal negligence is attribut-
able to the EPA for the property damage which occurred as

45a

a result of the accident of March 23, 1982 during the
cleanup of the oleum tank.

U.S.F. & G. argues that it is entitled to indemnity or
contribution from the United States. In support of its
request for indemnity, U.S.F. & G. cites section 886B of the
Restatement (Second) of Torts which provides:

Indemnity between tortfeasors.

(1) Iftwo persons are liable in tort to a third person for
the same harm and one of them discharges the liability
of both, he is entitled to indemnity from the other if the
other would be unjustly enriched at his expense by the
discharge of the liability. . .

The comments regarding the history of section 886B of the
Restatement provide that “A suit for indemnity is brought to
recover the total amount of the payment by the plaintiff, on
the ground that the plaintiffs conduct was not as blame-
worthy as the defendant’s...“Restatement (Second) of Torts,
§886B, Comments. U.S.F. & G. argues that indemnity is
appropriate because the United States is strictly liable or
because OH Materials acted in obedience to the directions
of the United States. We have held that strict liability cannot
form the basis for recovery under the Federal Tort Claims
Act. Laird vs. Nelms, 406 U.S. 797 (1972). Further, OH
Materials had its own duty to consider wind conditions.
Both OH Materials and the United States were negligent
and should share the cost of the damages; therefore, the
proper means for OH Materials to recover is through contri-
bution.

The United States argues that contribution is not
available to U.S.F. & G. because the United States is
secondarily liable and OH Materials is primarily liable for
the damages caused by the March 23, 1982 accident. The
United States cites the case of Burbage vs. Boiler Engineer-
ing & Supply Co., Inc., 249 A2d 563, 433 Pa. 319, 326-
327 (1969) as authority for this proposition. The distin-
ction between primary and secondary liability is not based
on a difference in degree of negligence or upon comparative

[ee mes

46a

negligence; rather, it is based on a difference in the charac-
ter of the wrongs and the duty owed by each of the tort-
feasors. Id. ;

Secondary as distinguished from primary liability rests —

upon a fault that is imputed or constructive only, being

based on some legal obligation between the parties or
arising from some positive rule of statutory or common
law or because of a failure to discover or correct a defect
or remedy a dangerous condition caused by the act of
the one primarily responsible.
Id. at 327. Both OH Materials and the EPA had the duty to
consider wind direction in performing the cleanup. The
EPA had the duty to make sure the independent contractor
followed all necessary safety precautions and OH Materials
had the duty to raise the issue of wind direction with the
EPA. The EPA's duty regarding safety was not reduced by
the fact that OH Materials also had a duty to take all
necessary precautions. In our view, the doctrine of primary
and secondary liability does not apply to the facts of this
case.

In order for the Pennsylvania Uniform Contribution
Among Tortfeasors Act, 42 Pa. C.S.A. §8321, et seq. (“the
Act”) to apply to this case, OH Materials and the United
States must be joint tort-feasors. Joint tort-feasors are
defined as “...two or more persons jointly or severally liable
in tort for the same injury to persons or property, whether or
not judgment has been recovered against all or some of
them.” 42 Pa. CS.A. §8322. In order to determine
whether parties are joint tort-feasors, courts consider factors
such as the identity of a cause of action, the existence of a
common or like duty, whether the same evidence will
support an action against each party, the nature of the
injury, identity of facts as to time. place, or result, and
whether the injury is direct and immediate rather than con-
sequential. Harka vs. Nabati. 487 A2d 432, 337 Pa. Super.
617 (1985). Both OH Materials and the United States hada

duty to consider wind conditions during neutralization.

ms 47a

Both parties had the opportunity to guard against the
other's negligence. The same evidence would support an
action against each party and the injury caused by the
negligence of OH Materials and of the United States is the
same. Therefore, OH Materials and the United States are
joint tort-feasors within the definition of the Act.

Under the Pennsylvania Uniform Contribution Among
Tortfeasors Act, the non-released party is entitled to have
the claim against it reduced in accordance with payments
made pursuant to a release in favor of a joint tort-feasor. 42
Pa. C.S.A. §8326; Sochanski vs. Sears, Roebuck & Co..,
689 F.2d 45, 48 (3d Cir. 1982). If the released party pays
more than its pro rata share, the non-released party is
entitled to have the claim reduced by the total amount of
consideration paid under the release. Id. Thus, the United
States is entitled to have a claim against it reduced in
accordance with the terms of the release given to U.S.F. &
G. by those whose property was damaged by the acid cloud.
Because the United States’s liability has been extinguished
by this release, U.S.F. & G. has a right of contribution from
the United States for the amount U.S.F. & G. paid in excess
of its own share of liability. 42 Pa. CS.A. §8324.

It is possible that counsel have stipulated or will stipulate
to the amount of damages to be assessed in this case.
Therefore, we will provide counsel the opportunity to file
such a stipulation and a proposed order. If counsel are
unable to reach a stipulation regarding damages, we will
schedule a hearing regarding the damages phase of this
case.

IV. Conclusions of Law.

1. The United States had a duty to maintain the highest
degree of care, utilizing every reasonable precaution sug-
gested by experience and the known danger, including
taking into account wind conditions, in making decision
concerning the methods employed in neutralizing the tank
containing oleum.

2. OH Materials had a duty to maintain the highest

48a

degree of care, utilizing every reasonable precaution sug-
gested by experience, and the known danger, including
taking into account wind conditions, in performing the
neutralization of the tank containing oleum.

3. The United States breached its duty of care in failing
to take wind conditions into account while supervising the
neutralization of the oleum tank.

4. OH Materials breached its duty of care in failing to
take wind conditions into account in performing the neutral-
ization of the oleum tank.

5. The United State’s breach of its duty of care regard-
ing wind conditions was a substantial factor in bringing
about the property damage which occurred on March 23.
1982.

6. OH Materials’ breach of its duty of care regarding
wind conditions was a substantial factor in bringing about
the property damage which occurred on March 23, 1982.

7. 60% of the causal negligence regarding the property
damage which occurred on March 23, 1982 is attributable
to the United States.

8. 40% of the causal negligence regarding the property
damage which occurred on March 23, 1982 is attributable
to the United States.

9. Pursuant to its policy insuring OH Materials, U.S.F. &
G. is subrogated to all claims of OH Materials against the
United States arising out of U.S.F. & G.’s payments to the
claimants suffering property damage as a result of the acid
cloud release of March 23, 1982.

10. U.S.F. & G's payments to persons suffering pro-
perty damage as a result of the acid cloud release on March
23, 1982 had the effect of protecting the United States
from claims of these persons.

11. USF. &G is entitled to 60% contribution from the
United States for all damages and reasonable expenses
including the adjustor’s expense paid as a result of the
chemical release of March 23, 1982 pursuant to principles
of comparative negligence.

An appropriate order will be entered.

DATED: July 3. 1986
MUIR. U.S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1695%3A2. Public record. Not legal advice.