United States v. Chevron Oil Co.
Citation: 8 ELR 20847
No. No. 76-4083, 583 F.2d 1357/12 ERC 1726/(5th Cir., 11/16/1978)
The court reverses a grant of summary judgment for the government in a suit to enforce a civil penalty for discharging oil into navigable waters after finding that the spill did not have a harmful effect on the environment. Section 311(b) of the Federal Water Pollution Control Act Amendments of 1972 prohibits the discharge of oil "in harmful quantities," and the regulations implementing these provisions define as harmful those discharges which produce a "sheen" upon the surface of the water. The Coast Guard assessed a penalty of $1,000 against defendant under § 311(b)(6) for an accidental discharge of less than one barrel of crude oil from a vent pipe more than two miles from shore. The penalty was imposed after a hearing at which defendant conceded the spill caused a sheen but produced unrebutted expert testimony that it was nonetheless not harmful. The court upholds the "sheen" test as a generally valid and useful standard of harmfulness, but rules that, as applied in this case, the test exceeds the scope of the statutory grant of authority because it reaches a spill that in fact was not harmful. Evidence of a sheen thus creates a presumption of harmfulness, but once the discharger introduces evidence that the oil was not actually harmful under the circumstances, a civil penalty cannot be enforced under § 311(b)(6) unless the government presents countervailing evidence of harm. This case is remanded for entry of summary judgment in favor of defendant.
Counsel for Plaintiff-Appellee
Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Counsel for Defendant-Appellant
W. Richard House, Jr.
Milling, Benson, Woodward, Hillyer & Pierson
1100 Whitney Bldg., New Orleans LA 70130
Before RONEY, TJOFLAT and HILL, Circuit Judges.