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United States v. Tex-Tow, Inc.

Citation: 9 ELR 20006
No. No. 78-1656, 589 F.2d 1310/12 ERC 1593/(7th Cir., 12/22/1978)

The Seventh Circuit upholds the Coast Guard's imposition of a $350 civil penalty under § 311(b)(6) of the Federal Water Pollution Control Act on the owner of a barge from which oil was spilled into navigable waters because of the act or omission of a third party. The court acknowledges that causation is required for the assessment of a penalty even under a strict liability provision such as § 311(b)(6). The court rules, however, that the presence of an actual spill plus the statistically foreseeable pollution attributable to the statutorily defined enterprise of oil production and transportation satisfy the requirements of both cause in fact and legal cause. Although a third party was responsible for the condition that produced the spill, legal responsibility for the spill was properly fixed by Congress upon the polluting activity in which the defendant was engaged on the basis of the statistical foreseeability of an accident. The court notes that this ruling comports with the emerging economic theory that the cost of pollution should be internalized by being placed on the "cheapest cost avoider." The court also upholds this interpretation of § 311(b)(6) against a substantive due prosess attack, emphasizing that imposing a civil penalty where a third party caused the spill is not irrational because such a penalty is meant to serve remedial purposes as well as to deter spills.

Counsel for Plaintiff-Appellee
James R. Burgess, Jr., U.S. Attorney
Room 330, 750 Missouri Ave., East St. Louis IL 62202
(618) 274-2361

Counsel for Defendant-Appellant
Larry D. King
200 Plaza Level LNG Tower, Houston TX 77002
(713) 523-6717

John W. Leskera
Dunham, Boman, Leskera & Churchill
520 First National Bank Bldg., East St. Louis IL 62201
(618) 271-0535

Before CASTLE, Senior Circuit Judge, BAUER and WOOD, Circuit Judges.

BAUER and WOOD, Circuit Judges, concurring. We concur, but with the same reservations we expressed in concurring in United States v. Marathon Pipe Line Company, No. 78-1453, also decided this date.