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United States v. Conoco, Inc.

ELR Citation: 26 ELR 21070
Nos. 95-2236, 916 F. Supp. 581/42 ERC 1445/(E.D. La., 02/08/1996)

The court holds that the federal government's costs of monitoring a private party's oil spill cleanups are recoverable removal costs under the Oil Pollution Act (OPA). The court first holds that OPA §1001(30) is broad enough to comport with the government's interpretation of "removal" as including not only the containment or removal of oil but also such other actions as are necessary to minimize or mitigate damage to the public health or welfare. Section 1012(a)(1), which provides that the Oil Spill Liability Trust Fund (OSLTF) is available for the payment of removal costs, including the costs of monitoring removal actions, indicates that Congress understood the term removal costs to include the cost of monitoring removal activities. The fact that the OSLTF may be used to fund monitoring activities does not mean that it is the only source from which the government may recoup such costs. The court rejects defendant's argument that the trigger for liability for government monitoring costs is the responsible party's refusal or inability to remove the discharge or a determination by the on-scene coordinator (OSC) that the responsible party's efforts are inadequate. The regulatory language that the defendant cites directs the OSC to ensure not simply that actions are taken, but that effective actions are taken. To deny recovery of costs associated with ensuring such effectiveness places a limitation on the statute that is not clearly intended by the regulations. The court notes that the legislative history is not inconsistent with, and the purpose of the OPA comports with, the government's construction of the statute. Finally, the court holds rational the government's construction of Coast Guard directives as authorizing initial resort to the OSLTF for monitoring costs, followed by recovery of such costs from the responsible party where such costs are more than de minimis and are incurred after the assessment phase.

Counsel for Plaintiff
Michael Donnellan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Frederick W. Bradley
Liskow & Lewis
One Shell Sq., 50th Fl., New Orleans LA 70139
(504) 581-7979