LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 49
directions and orders that the DOE gave with respect to waste management units at the plant.” 194
Therefore, the defendants did not satisfy the first element of the government contractor defense
demonstrating that the pollution resulted from express approval and direction of the government.
In Arness v. Boeing North American Inc., the plaintiffs filed suit against the defendant
asserting violations of state environmental laws stemming from the release and disposal of
trichloroethylene (“TCE”) which contaminated the groundwater, soil and subsurface soil of the
area surrounding a facility which manufactured and tested rocket engines. 195
The defendant
argued that the contamination resulted from rocket engine contracts that were performed
pursuant to the specific direction and control of the United States. 196
The defendant argued that
the United States had specifically required the use of TCE. 197
The court ultimately determined
that the defendant failed to prove that he was “acting under” the direction of a federal officer,
stating,
[The defendant’s] use of TCE did not cause Plaintiffs’ injuries. Rather, Plaintiffs’
injuries were allegedly caused by [defendant]’s negligent disposal and storage of
TCE, which activities were not performed at the government’s behest . . . “[t]he
government did not specify safeguards to prevent the release of TCE to the air and
ground in these flushing procedures” . . . Furthermore, . . . [the defendant] does
not submit any evidence that the government required . . . [the defendant] to store
194 Id. at 968.
195 In this case, the court examined the issue of governmental direction and control in light of defendants’ removal of
the case pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which states that an action filed
against “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the
United States or of any agency thereof, sued in an official capacity for any act under color of such office or on
account of any right, title or authority claimed under any Act of Congress” may be removed to federal court.
Although the court did not expressly address the likelihood that the defendant’s government contractor defense
would actually succeed in light of the facts, the reasoning used by the court is parallel to that which a court would
use to examine the discretionary function exception when considering the applicability of the government contractor
defense.
196 Id. at 1270.
197 Id.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM