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United States v. Chotin Transp., Inc.

Citation: 17 ELR 20636
No. Nos. C-1-85-1082, -1535, 649 F. Supp. 356/(S.D. Ohio, 10/29/1986)

The court holds that the United States Coast Guard properly imposed civil penalties under the Federal Water Pollution Control Act (FWPCA) on a shipper for discharging oil into navigable waters and that the Coast Guard's civil penalty assessments of $1,500 and $3,600 for two violations were not arbitrary and capricious. The court first holds that the Coast Guard's decision to impose civil penalties under FWPCA § 311 on a shipper for discharging between 1 and 20 gallons of gasoline on one occasion and 1,440 gallons on another occasion was supported by substantial evidence. Defendant does not contend that the spills did not occur or that it was not responsible for the spills. The discharges were harmful, since discharges that cause a surface sheen are presumed harmful under the regulations, and the quantity of oil spilled in both discharges at issue was sufficient to create a visible sheen on the water. Defendant had an opportunity to present evidence that the spill was not harmful in spite of the sheens, but it chose not to request a hearing. The fact that weather conditions helped to dissipate one of the spills does not negate defendant's civil liability. The court then holds that the imposition of civil penalties of $1,500 for the 1 to 20-gallon spill and $3,600 for the 1,440-gallon spill was not arbitrary and capricious. The Coast Guard properly considered the criteria listed in § 311(b)(6)(A). The hearing officer considered the amount and cause of the spills, as well as defendant's violation history. Defendant presented no evidence that the penalties were inappropriate for the size of its business or that the amounts would cause it to go out of business. Although 20 gallons comes close to being a de minimis violation, the court notes that defendant elected not to participate in an administrative hearing that would have provided the court with additional information on the record.

Counsel for Plaintiff
Robert Behlen Jr., Ass't U.S. Attorney
220 USPO & Courthouse, 5th and Walnut Streets, Cincinnati OH 45202
(513) 684-3711

Counsel for Defendant
William Ellis
Wood & Lamping
800-900 Tri-State Bldg., Cincinnati OH 45202
(513) 852-6000