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Total Petroleum, Inc. v. United States

Citation: 17 ELR 21001
No. No. 439-85L, 12 Cl. Ct. 178/25 ERC 2102/(Cl. Ct., 04/17/1987)

The court holds that a petroleum company may not recover cleanup costs from the government under Federal Water Pollution Control Act (FWPCA) § 311(i)(1) for an oil spill into a creek caused by the rupture of an oil pipeline during a flood, since the petroleum company did not exercise reasonable care to prevent or minimize the likelihood of damage resulting from a rupture. The court first observes that under the FWPCA, a discharger is generally strictly liable for cleanup costs, but may recover those costs from the government if the spill is caused solely by an "act of God" within the meaning of § 311(a)(12) and the discharger was itself totally without fault. The court holds that while the pumping of oil through a pipeline is not itself an abnormally dangerous activity under normal conditions, the act of pumping oil during a flood that submerged the usually above-ground pipeline is an abnormally dangerous activity. The court holds that upon inspection of the submerged pipeline, the petroleum company should have perceived the increased likelihood of damage to the pipe and should have exercised reasonable care to shut off the flow of oil. The court further holds, however, that even if a plaintiff in a cost-recovery action fails to take reasonable care to prevent the spill, it may nevertheless recover its costs if it can show that its omission was so indirect or insubstantial as to not be a contributing cause to the spill. The court holds that the failure to inspect the pipe for more than 20 hours, coupled with the fact that the rupture continued unabated for five hours, means that the petroleum company was a substantial cause of both the spill and of its severity. The court finally holds that the unsupported conclusion of a consulting firm that the discharge could not have been prevented is entitled to no weight on summary judgment.

Counsel for Plaintiff
Howard E. O'Leary
1752 N St. NW, Washington DC 20036
(202) 466-7185

Counsel for Defendant
David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741