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Chicago, Milwaukee, St. Paul & Pac. R.R. v. United States

Citation: 8 ELR 20348
No. No. 269-76, 575 F.2d 839/11 ERC 1533/(Ct. Cl., 04/19/1978)

Granting plaintiffs' cross-motion for summary judgment, the Court of Claims enters summary judgment allowing plaintiffs to recover cleanup costs for an oil spill from their property caused by burglars. Plaintiffs had sought to recover their costs, pursuant to Federal Water Pollution Control Act §311(i)(1), ELR STAT & REG. 42135, on the grounds that they took reasonable precautions to protect against the spill and that it was caused solely by the acts of third parties within the meaning of the statute. The government maintains that the spill was not caused solely by third-party action because plaintiffs failed to prevent the burglary of pipes that led to the oil spill. The court concludes that, in the circumstances of this case, plaintiffs exercised the required level of reasonable care, that the criminal act was the sole cause of the spill, and that plaintiffs are therefore entitled to recover. Key factors in the court's determination were the presence of protective conditions on the property and the plaintiffs' acquisition of the property for only 10 days before the burglary occurred. The court also rejects defendant's argument that the failure to prepare a Spill Control and Countermeasure Plan, as required by federal regulations, constituted "negligence per se," which would prevent recovery of cleanup costs.

Counsel for Plaintiffs
Robin Thomas Baker, James E. Nelson, J. Fred Simpson, Dennis G. Opacki
The Milwaukee Road
815 Skinner Bldg., Seattle WA 98101
(206) 628-3845

Counsel for Defendant
Joan M. Cloonan; James W. Moorman, Ass't Attorney General; Angus MacBeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(212) 739-3140

Before NICHOLS, KASHIWA, and KUNZIG, Judges.