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13 ELR 20029 | Environmental Law Reporter | copyright © 1983 | All rights reserved Minneapolis Park and Recreation Board v. United StatesNo. 35-79 (Ct. Cl. Trial Div. April 29, 1982)The court rules that the Minneapolis Park and Recreation Board is not entitled to recover, pursuant to § 311(a)(1)(D) of the Federal Water Pollution Control Act (FWPCA), costs incurred in cleaning up an oil spill partially caused by vandalism. Initially, the court notes that plaintiff's status as a park facility is irrevelant and that the reasonableness of its actions must be measured by the standard to care applicable to a storer or handler of oil. The court holds that plaintiff's failure to take reasonable precautions to prevent or forestall vandals from immediately causing the oil spill contributed to the spill and therefore, that plaintiff is precluded from recovering its cleanup costs under § 311(a)(1)(D). Plaintiff violated its duty of care, which arose when it discontinued use of its oil-burning boiler in 1959, to determine the amount of oil remaining in the storage tank and to take steps for properly dealing with that unused oil. Counsel for Plaintiffs Steven D. Jamar Counsel for Defendant Yock, J.: Opinion* The plaintiff, Minneapolis Park and Recreation Board (Park Board), is an agency of the City of Minneapolis, Minnesota. The Park Board owns and maintains 164 parks and parkways in Minneapolis totaling 5,868.73 acres with 162 permanent park buildings and facilities. The plaintiff, American University Insurance Company is the Park Board's surety and as such, has a subrogation interest in any recovery.1 Jurisdiction over this oil spill cost recovery claim is based on section 311(i)(1) of the Federal Water Pollution Control Act, 33 U.S.C. § 1321(i)(1) (1976). This section provides for recovery from the Government of oil spill cleanup costs under certain limited circumstances. This claim was brought to recover amounts plaintiffs paid for clean up of a vandalism-caused oil spill which occurred on or about May 12, 1978. The source of the oil was an underground oil storage tank located in Webber Park, one of the parks owned and maintained by the Park Board. The key issue in this case is whether the oil spill was caused solely by the vandals or whether the Park Board caused or contributed to the spill. For the reasons set forth below, it is concluded that the plaintiffs are not entitled to recover. Webber Park is a 24.90-acre park situated along Webber Parkway in northern Minneapolis. The park's eastern boundary abuts the Mississippi River, a navigable waterway of the United States. Shingle Creek runs through the park, and empties into the Mississippi River. In 1926 a large swimming pool complex, including changing rooms and showers, was constructed in Webber Park about 250 feet off Webber Parkway. Nearby, another large masonry structure, about 30 by 57 feet, was built to house support facilities for the swimming pool (filter building). The filter building was divided into two large rooms. One room contained the swimming pool filters. The other room contained an oil-burning boiler for heating the water for the swimming pool showers. Adjacent to the filter building on its northwest side, an underground oil storage tank was installed. This tank was the source of the spilled oil. In 1959, the Park Board discontinued using the boiler to heat water for the pool showers. The swimming pool and the filter room portion of the filter building continued to be used each summer. At all times relevant to this claim, Webber Park, the buildings in it, and the oil storage tank were in the sole control of the Park Board. In the early 1960's, the course of Shingle Creek was changed so that it ran between the swimming pool complex and the filter building. This isolated the filter building from the rest of the park on a narrow strip of land between the creek and railroad tracks which ran directly behind the building, forming the northeastern park boundary. A several hundred foot chain-link fence, owned and maintained by the railroad, separated the filter building from the tracks. The filter building and the strip of land were not used for any recreational purpose. The main access to the filter building was over a foot bridge constructed in the 1920's. Even though the filter building and the strip of land served no recreational purpose, this bridge was not chained or barricaded in any way. Also, there were no signs on the bridge that would limit access. The swimming pool building and filter building were also connected by large water pipes which passed over Shingle Creek. Children often played on the pipes and used the pipes to walk over to the filter building. There is pedestrian access to the park along its entire boundary with Webber Parkway as well as from the residential neighborhood across the railroad tracks. The floor of the filter building was approximately 15 feet below ground level. There were floor drains in both the filter room and the boiler room which drained directly into Shingle Creek. Neither drain was equipped with an oil separator or other containment device. The underground storage tank was buried at an undetermined depth next to the filter building, but above the building's floor level. At one time there was a gauge on the piping inside the filter building that could be used to approximate the balance of oil remaining in the oil storage tank. Prior to 1959, it had been [13 ELR 20030] broken and it was never repaired or replaced. Thus, there was no external means to determine the quantity of oil remaining in the tank. However, at no time prior to the spill was any attempt made by any Park Board employee to measure the quantity of oil remaining in the tank even though it had two openings for access. The first was a curved filler pipe which, because of its construction, was difficult to use to get an accurate measurement. The second opening was a manhole cover directly over the tank, secured by 20 to 30 bolts. At no time prior to the spill was this cover removed. After the spill, it took two men approximately one-half hour to remove the bolts. The quantity of oil that still remained was then determined by a measuring stick, and the capacity of the tank was estimated at approximately 6,000 gallons. At the point where the pipe entered the boiler room from the oil storage tank there was a valve to shut off the flow of oil from the tank. After use of the boiler was discontinued, the valve was closed, but the handle was never removed. There were two electrical lines running to the filter building, a 440-volt line which ran the filter equipment itself, and a standard 110-volt line which ran all the other lights and motors in the building. Although the building served no use other than in the summer swimming season, the electricity for the filter building was left on during the balance of the year. There were two fuse boxes in the filter building. One was located in the filter room and the other in the boiler room near the fuel oil pump motor. This motor controlled the flow of fuel oil to the boiler. Next to the boiler room fuse box was another box which contained the switches for starting the fuel oil pump motor. All fuses in the boiler room fuse box were removed in 1959 in the apparent belief that it contained the fuses for the fuel oil pump motor and that this process would render the pump nonfunctional. In fact, it did not. The boiler room fuse box only contained fuses for the boiler motor itself. During the nonswimming months (September through early June), only those fuses in the filter room box on the 440-volt line, which controlled the pool filters, were removed. Park Board employees knew that the filter room fuse box on the 110-volt line, controlled the lights and sump pump in the boiler room. They knew this line and fuses were in place and functional. With this electrical system in place, Park Board employees never checked to see if the fuel oil pump motor was operational during or after the summer swimming season either at the time the boiler was permanently shut down or at any time during the 19 years after discontinuing use of the boiler. A key Park Board employee in this matter was Mr. Earl Baker. At the time of trial, Mr. Baker had served 29 years as an employee of the Park Board with most of those years being associated directly with Webber Park. In 1954, Mr. Baker had been placed in charge of maintenance at the Webber Park swimming pool, and remained in charge until at least 1962. He later became a crew leader with maintenance responsibilities for several parks in addition to Webber Park. In 1959, when the use of the boiler was discontinued for heating shower water, Mr. Baker did not cause the oil to be drained from the storage tank. He testified that this was done because he thought there was only a little oil left in the tank and that a decision might be made later to start using the boiler again. Mr. Baker was the employee who ordered the oil and kept the filling receipts and records during this time. He also indicated that at the time of the oil spill in 1978, he was aware that some oil remained in the oil storage tank. At the time of the spill, Mr Baker also had the responsibility to winterize the filter building during the nonswimming months. He would accomplish this by removing the pool filter fuses, although the electricity would not be turned off to the building. He also caused the water to be turned off and the water meter to be removed. In addition, he would check to make sure that the filter room door was padlocked and that boards covered the doors and broken windows. Although Mr. Baker testified that he did not understand how the electrical system and fuel oil pump motor operated, this testimony is difficult to credit, in view of his close association with the equipment for most of his 29 years with the Park Board. There were two doors and numerous windows in the filter building. One door on the southwest side opened onto steps which led down to the filter room floor. This was a wooden door, which at the time of the oil spill, was secured with a hasp and padlock. Vandals had on previous occasions broken padlocks on this door. The other door on the northwest side opened into the boiler room. A steel ladder was attached to the concrete wall next to the door and led down to the concrete floor. This door was wood covered with metal. There was no lock. It was closed by bracing and nailing two-by-fours against the door on the inside of the building and behind the ladder. The vandals entered through this door. The glass in all the windows of the filter building had been broken by vandals. Plywood had been nailed onto the frames. Vandals often removed the plywood which would be replaced, usually within several days. There was graffiti written all over the exterior of the building. Sometime on or about May 11 or early on May 12, 1978, vandals using a pry bar or similar tool, broke open the northwest door, and climbed down the ladder into the boiler room. The vandals opened the valve handle on the oil pipe, broke off a pipe gauge and piece of pipe over the fuel oil pump motor, and switched the motor on. Approximately 3,550 gallons of oil flowed out of the broken pipe onto the floor of the boiler room, then drained through the floor drain into Shingle Creek and on into the Mississippi River before the vandalism was discovered and the flow stopped. One of the nearby residents of the Webber Park area, Mr. Larry Hanneman, walks his dogs in the park daily. He testified that he had observed small children disappearing into and out of the filter building, using the damaged northwest door, several days before he heard about the oil spill on television news. It therefore is possible that vandals had actually opened the door several days in advance of the damage done inside the boiler room. Lighting throughout Webber Park is provided by 100 watt bulbs in lamp posts spaced about every 150 to 200 feet apart along the walkways. There are no walkways between the swimming pool complex and the filter building. There is no outdoor lighting on the filter building nor on the strip of land where the filter building is located. At best only dim and indirect lighting reached the northwest boiler room door from the walkway lights. The Park Board maintains its own police force to patrol its parks. At the time of the spill, Webber Park was part of a vehicle-patrolled tour of duty that included a number of parks in north and northwestern Minneapolis. At the time of the oil spill, this patrol was as follows. During the day from 8 a.m. to 4 p.m. one uniformed officer patrolled in a marked car. A two-man patrol covered the same area from 4 p.m. to 12 a.m. Also, one officer in a patrolster, a three-wheeled motorized scooter, patrolled these parks during the evening. There was one additional officer in an unmarked car who patrolled sometimes during the day and sometimes in the evening. At the time of the oil spill, there were no patrols during the period from 12 a.m. to 8 a.m. During patrols, officers generally did not leave the roadways. Because of the distance involved and the number of parks, usually only one stop was made at each park during a shift. Minneapolis city police do not regularly patrol the parks. Vandalism was clearly a problem in Webber Park. The testimony of several witnesses confirmed that numerous break-ins had occurred in Webber Park buildings and that the Park Police considered Webber Park to be a trouble spot. Mr. Baker also testified that vandalism was a constant problem in this area. After the spill was reported on May 12, 1978, the Park Board hired two oil spill recovery firms to clean up the oil in the Mississippi River and environs. The cleanup was accomplished and the costs paid by the plaintiffs. Thereafter, plaintiffs filed this action to recover the cleanup costs. This court recently has given careful review of the legislative history of section 311 of the Federal Water Pollution Control Act, 33 U.S.C. § 1321 (1976) and its theory of liability and responsibility for clean up of oil spills. Reliance Ins. Co. v. United States, Ct. Cl. No. 146-79L [12 ELR 20636] (slip opinion of April 21, 1982); Sabine Towing & Transp. Co. v. United States, 229 Ct. Cl. __, [13 ELR 20031] __, 666 F.2d 561, 563-64 [12 ELR 20175] (1981). The court in Reliance and in Sabine Towing reiterated its interpretation that liability is strict on the spiller of oil in navigable waterways. Recovery of a spiller's reasonable cleanup costs can be had only if one of the limited exceptions apply. Id. The statute contains only four exceptions which allow a spiller to either escape liability or to recover cleanup costs in this court. These are: that such discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party without regard to whether such act or omission was or was not negligent, or of any combination of the foregoing causes. Plaintiffs here press for recovery based on subsection (D), in the belief that the vandalism was the sole cause of the oil spill. The facts are clear however, that it was the acts and omissions of the Park Board that overwhelmingly contributed to the spill and thus, in large part, were a cause of it. The legal standards to be applied to cases of vandalism-caused oil spills have been examined previously in Union Petroleum Corp. v. United States, 228 Ct. Cl. , 651 F.2d 734 [11 ELR 20755] (1981); Chicago, M., St. P. & Pac. P.R. v. United States, 216 Ct. Cl. 155, 575 F.2d 839 [8 ELR 20348] (1978); Proctor Wholesale Co. v. United States, 215 Ct. Cl. 1049 (1978) and City of Pawtucket v. United States, 211 Ct. Cl. 324 [6 ELR 20786] (1976). In determining whether the vandalism was the sole cause of the spill, the reasonableness of the Park Board's acts must be determined. Some of the factors examined in previous cases were: fencing and oil barriers, protection of spigots, lighting, security patrols, previous incidents of vandalism, and the length of time the property was held. On every one of these factors, the Park Board's actions fail to meet the standard of reasonableness required by the statute. It is important to point out that the standard of care is not that for a park itself. The Park Board urges that the reasonable care standard must be measured by the appropriateness of its action in providing oil storage at a park facility. The statute under which recovery is claimed deals with storage and handling of oil and the potential harm to the nation's waterways of spilled oil. It is clear that the standard of care is one for the storage of oil regardless of the "business" that the particular spiller is in. The Park Board undoubtedly provides fine recreational parks for the residents of the City of Minneapolis. That, however, is not the issue in this case. The issue in this case is whether the Park Board, as a storer and handler of oil, did a reasonable job of storing that oil at Webber Park such that it did not contribute in any significant way to the oil spill. This court finds that it did not take such reasonable precautions to prevent or forestall the vandals from immediately causing the spill and therefore it is not entitled to recover its cleanup costs. At the time of the spill, the Park Board was aware that it had an oil storage tank in Webber Park and that the tank had oil in it. The Board, acting through its employee/agent Mr. Baker, was aware of this fact when use of the boiler was discontinued in 1959. The amount of oil in the tank was immaterial. Mr. Baker may truthfully have thought that there was only a small amount of oil remaining in the tank in 1959. However, at that point, Mr. Baker was under a duty of reasonable care to find out how much oil remained in the tank and to deal with it properly. Although the tank measurement gauge was broken, it was a relatively easy task to manually measure the quantity of oil remaining by removing the manhole cover. Instead, the Park Board simply ignored the problem and its responsibilities. For 19 years, no one in the employ of the Park Board ever did anything to find out how much oil was actually in the tank, notwithstanding the fact that it served no park purpose whatsoever during that time. At common law, a landowner owned a duty to his surrounding neighbors to deal with his land so as not to cause damage or create nuisances to them. This duty presupposes that the landowner knows his land and the legal responsibilities in connection with this knowledge. This presumption is called into question in this case. Clearly the Park Board did not know (nor bother to find out) how much oil was in the tank. It alone had that responsibility. Even besides the common law duty of landowners, the time frame in which this oil was left sitting cannot be ignored by the court. Between 1959 and the time of the oil spill in 1978, legislation and ordinances were being enacted by federal, state and local authorities that called attention to the hazards of inadequately stored oil to the surrounding environment. Where were the Park Board managers? Where were the oil spill plans? Where were the oil storage surveys? There were no plans nor apparently even much thought given to the storage of oil. It is almost as if the Park Board was in a time warp and had not received the word. Perhaps the best way fora landowner to deal with unused and unneeded oil is to remove it or even remove the storage tank. This court will not issue a holding today that demands that type of action in all cases; however, landowners should be on notice that this court will take a very dim view of inadequately stored unneeded or unused oil, and it will always question why the landowner did not remove the oil or the storage tank from the premises. Nineteen years of inaction in this case is totally beyond any semblance of reasonable care. As this court has said, "Our task is one of line-drawing. . . ." Chicago, M., St. P. & Pac. R.R. v. United States, 216 Ct. Cl. 155, 161, 575 F.2d 839, 842 [8 ELR 20348] (1978). In that case, the court allowed recovery when the plaintiff had acquired the property only 10 days before, and the court determined that the plaintiffs had done all they could do in the 10 days to forestall the vandalism that caused the spill. No recovery was allowed, where the property was acquired 40 days before, in Proctor Wholesale Co. v. United States, 215 Ct. Cl. 1049 (1978). The court found that 40 days was sufficient time to investigate the property and secure the oil tanks. If time, and the precautions taken within that time, were the only guidelines, it is clear the plaintiffs are beyond the realm of allowable recovery having done nothing for 19 years. That simply was not reasonable behavior. In addition, the Park Board also failed to establish the reasonableness of its actions on the other criteria previously used by this court in examining the facts and circumstances of vandalism-caused oil spills. For example, the Park Board created no barrier such as an oil separator on the inside of the filter building between the oil pipes and the drain. If a vandal gained entry to the filter building, virtually any disruption of the oil piping system would result in a spill. Gravity alone would cause the oil to flow toward the unprotected drain. In addition, leaving the electricity on in the filter building during the nonsummer months contributed to the spill. Had the electricity not been on, at least the oil pump motor would not have worked to hasten the spill. Also, the security patrols simply were inadequate to secure oil storage facilities. This was a vandal-prone area. The vehicle patrols may well be deemed adequate for the normal park security functions, but they were not adequate to secure an oil storage facility. There was no security at all from midnight to 8 a.m. and the roving nature of the vehicle patrols during the other times was inadequate. Likewise, there was no security fencing or lighting for the filter building. Parks and other public and quasi-public bodies cannot hide behind their special relationship with the public to shield themselves from responsibility for oil spills. They will be held to the same standard of care as that of any oil storage facility owner. All of the facts in this case lead to the inescapable conclusion that the Park Board substantially contributed to this oil spill, and is therefore not entitled to recover its cleanup costs. This was an oil spill waiting to happen. Since the plaintiffs have failed to establish a basis for recovery, the petition should be dismissed. 1. The plaintiff, Minneapolis Park and Recreation Board (Park Board), is an agency of the City of Minneapolis, Minnesota. The Park Board, in its own name, owns and maintains 164 parks and parkways in Minneapolis totaling 5,868.73 acres with 162 permanent park buildings and facilities. 2. The plaintiff, American Universal Insurance Company is the Park Board's surety. 3. The defendant is the United States of America. 4. Jurisdiction over this oil spill cost recovery claim is based on section 311(i)(1) of the Federal Water Pollution Control Act, 33 U.S.C. § 1321(i)(1) (1976). 5. This claim was brought to recover amounts plaintiffs paid for cleanup of a vandalism-caused oil spill which occurred on or about May 12, 1978. The source of the oil was an underground oil storage tank located in Webber Park, one of the parks owned and maintained by the Park Board. 6. Webber Park is a 24.90-acre park located along Webber Parkway in northern Minneapolis. Webber Park abuts the Mississippi River, a navigable waterway of the United States. Shingle Creek, a tributary of the Mississippi, runs through the park. 7. In 1926 a large swimming pool complex, including changing rooms and showers, was constructed in Webber Park about 250 feet off Webber Parkway. Further into the park, a large masonry structure, about 30 by 57 feet, was built to house support facilities for the swimming pool (filter building). 8. The filter building was divided into two large rooms. One contained the swimming pool filters (filter room). The other room contained an oil-burning boiler for heating the water for showers (boiler room). 9. Also in the 1920's and adjacent to the filter building on the northwest side, an underground oil storage tank was installed. This tank was the source of the spilled oil. 10. There was no form of oil containment equipment or barrier around the oil storage tank. 11. At all times relevant to this claim, Webber Park, the buildings in it, and the oil storage tank were in the sole control of the Park Board. 12. In 1959, the Park Board discountinued using the boiler to heat water for the pool showers. The filter room continued to be used each summer. 13. In the early 1960's, the course of Shingle Creek was changed so that it ran between the swimming pool complex and the filter building. This isolated the filter building from the rest of the park on a narrow strip of land between the creek and railroad tracks which ran directly behind the building, forming the northeastern park boundary. A several hundred foot chain-link fence, owned and maintained by the railroad, separated the filter building from the tracks. 14. The filter building and the strip of land it sat on were not used for any recreational purpose. The swimming pool complex and the filter building were used only during the summer swimming season. 15. The main access to the filter building was over a foot bridge constructed in the 1920's. Even though the strip of land served no recreational purpose, this bridge was not chained or barricaded in any way. There were no signs on the bridge limiting access. 16. The swimming pool building and filter building were also connected by large water pipes which passed over Shingle Creek. Children often played on the pipes and used the pipes to walk over to the filter building. 17. There is pedestrian access to the park from its entire boundary with Webber Parkway as well as from the residential neighborhood across the railroad tracks. 18. The floor of the filter building was approximately 15 feet below ground level. There were floor drains in both the filter room and the boiler room. Both drains emptied directly into Shingle Creek. The primary purpose of the boiler room drain was for draining condensation from the boiler when it was closed down at the end of the summer swimming season.The underground oil storage tank was buried next to the filter building, but above the building's floor level, at an undetermined depth. 19. Neither the filter room nor boiler room drains were equipped with an oil separator. 20. At one time there was a gauge on the piping inside the filter building that could be used to approximate the balance of oil remaining in the oil storage tank. Prior to 1959, it had been broken and it was never repaired or replaced. Thus, there was no external means to determine the quantity of oil remaining in the tank. 21. A key Park Board employee in this matter was Mr. Earl Baker. At the time of trial, Mr. Baker had served 29 years as an employee of the Park Board with most of those years being associated directly with Webber Park. In 1954, Mr. Baker had been placed in charge of maintenance at the Webber Park swimming pool and remained in charge until at least 1962. He later became a crew leader with maintenance responsibilities for several parks in addition to Webber Park. In 1959, when use of the boiler was discontinued for heating shower water, Mr. Baker did not cause the oil to be drained from the storage tank. He testified that this was done because he thought there was only a little oil left in the tank and that a decision might be made later to start using the boiler again. Mr. Baker was the employee who ordered the oil and kept the filling receipts and records. He also indicated that at the time of the spill in 1978, he was aware that some oil remained in the oil storage tank. 22. At the time of the spill, Mr. Baker also had the responsibility to winterize the filter building during the nonswimming months. He would accomplish this by removing the pool filter fuses, although the electricity would not be turned off to the building. He also caused the water to be turned off and the water meter to be removed. In addition, he would check to make sure that the filter room door was padlocked and that boards covered the doors and broken windows. 23. Although Mr. Baker testified that he did not understand how the electrical system and fuel oil pump motor operated, this testimony is difficult to credit, in view of his close association with the equipment for most of his 29 years with the Park Service. 24. At no time prior to the spill was any attempt made to measure the quantity of oil remaining in the tank. 25. The oil storage tank had two openings for access. The first was a curved filler pipe. Neither the capacity of the tank nor the quantity of oil in the tank could be determined without special equipment or great difficulty through this pipe. 26. The second opening was a manhole cover directly over the tank, secured by 20 to 30 bolts. At no time prior to the spill was this cover removed. After the spill, it took 2 men approximately one-half hour to remove the bolts. The quantity of oil that still remained in the tank was then determined by a measuring stick and the capacity of the tank was estimated at approximately 6,000 gallons. 27. An underground pipe ran directly from the oil storage tank into the filter building. The pipe then ran along an interior wall to a fuel oilpump motor which regulated the flow of oil to the boiler. 28. At the point where the pipe entered the boiler room from the oil storage tank there was a valve to shut off the flow of oil from the oil storage tank.After use of the boiler was discontinued, the valve was closed, but the handle was never removed. 29. On the pipe directly above the fuel pump motor were two gauges. One showed the pressure and the other the temperature of the oil. 30. There were two electrical lines running to the filter building, a 440-volt line which ran the filter equipment itself, and a standard 110-volt line which ran all the other lights and motors in the building. Although the building served no use other than in the summer swimming season, the electricity for the interior lights and motors for the filter room was left on during the balance of the year. 31. There were two fuse boxes in the filter building. One was located in the filter room and the other in the boiler room nearby the fuel oil pump motor. Next to the boiler room fuse box was another box which contained the switches for starting the fuel oil pump motor. All fuses in the boiler room box were removed in 1959 in the belief that it contained the fuses for the fuel oil pump motor. In fact, it did not. The box only contained fuses for the boiler motor itself. 32. During the nonswimming months, only those fuses in the filter room which controlled the pool filters were removed. 33. Park Board employees knew that the filter room fuse box controlled the lights and sump pump in the boiler room. 34. Park Board employees never checked to see if the fuel oil pump motor was operational either at the time the boiler was permanently shut down or during the 19 years after discontinuing use of the boiler. 35. There were two doors and numerous windows in the filter building. One door on the southwest side opened onto steps which led down to the filter room floor. This was a wooden door, which at the time of the oil spill, was secured with a hasp and padlock. 36.The other door on the northwest side opened into the boiler room. A steel ladder was attached to the concrete wall next to the door and led down to the floor. This door was wood covered with metal. There was no lock. It was closed by bracing and nailing two-by-fours inside against the door and behind the ladder. 37. The glass in all the windows of the filter building had been broken. Plywood had been nailed onto the frames. Vandals often removed the plywood which would then be replaced usually within several days. There was graffiti written all over the exterior of the building. 38. Sometime on approximately May 11 or early on May 12, 1978, vandals used a pry bar and broke the two-by-fours which secured the boiler room door. The vandals turned the valve handle on the pipe to the open position. Also the oil pressure gauge and a piece of pipe were broken off and the fuel oil pump motor switched on. 39. Approximately 3,550 gallons of fuel oil flowed out of the broken pipe onto the floor of the boiler room, then drained throught the floor drain into Shingle Creek and eventually into the Mississippi River before the vandalism was discovered and the flow stopped. 40. One of the nearby residents of the Webber Park area, Mr. Larry Hanneman, walks his dogs in the park daily. He testified that he had observed small children disappearing into and out of the filter building using the damaged northwest door several days before he heard about the oil spill on television news. It therefore is possible that vandals had actually opened the door several days in advance of the damage done inside the boiler room. 41. Even if the fuel oil pump motor had not been started, oil would have drained from any break in the pipe between the storage tank and the motor due to the force of gravity. 42. Lighting throughout Webber Park is provided by 100 watt bulbs in lamps posts spaced about every 150 to 200 feet apart along the walkways in the park. There are no walkways between the swimming pool complex and the filter building. 43. There is no outdoor lighting on the filter building nor on the strip of land where the filter building is located. The nearest outdoor lighting is on the walkway leading to the foot bridge. This is at the opposite end of the filter building from the boiler room door where the vandals entered. At best only dim and indirect lighting reached the boiler room door. 44. The Park Board maintains its own police force to patrol its parks. At the time of the spill, Webber Park was part of a tour of duty that included a number of parks in north and northwestern Minneapolis. 45. At the time of the oil spill, Webber Park was patrolled as follows: during the day from 8 a.m. to 4 p.m. one uniformed officer in a marked patrol car patrolled it and all of the parks in its tour of duty. A two-man patrol covered the same area from 4 p.m. to 12 a.m. Also, one officer in a patrolster, a three-wheeled motorized scooter, also patrolled these parks during the evening. There was one additional officer in an numarked car who patrolled these parks as well, sometimes during the day and sometimes in the evening. 46. At the time of the oil spill, there were no patrols during the period from 12 a.m. to 8 a.m. 47. During patrols, officers generally did not leave the roadways. Because of the distance involved and the number of parks, usually only one stop was made at each park during a shift. 48. City of Minneapolis police do not regularly patrol the parks. 49. Vanadlism was clearly a problem in Webber Park. The testimony of several witnesses confirmed that numerous break-ins had occurred into Webber Park buildings and that the Park Police considered Webber Park to be a trouble spot. Mr. Baker also testified that vandalism was a constant problem in the area. 50. Clean up of the oil spill took place from May 12, 1978 through May 16, 1978. The Park Board paid $43,175.69 to Fuel Recovery, Inc., and $35,029.14 to OH Materials, Inc., for clean up materials and services. In addition, the Park Board incurred other costs totalling $4,041.70. 51. In view of the decision on liability, no findings are made whether the charge by OH Materials, Inc., was reasonable. However, the record is complete on this issue and the appropriate findings could be made. Upon the trial judge's findings and opinion, which are adopted by the court, the court concludes as a matter of law that the plaintiffs are not entitled to recover, and the petition is therefore dismissed. * The trial judge's recommended decision and conclusion of law are submitted in accordance with Rule 134(h). 1. See Quarles Petroleum Co. v. United States, 213 Ct. Cl. 15, 551 F.2d 1201 (1977) for right of surety to seek or participate in any recovery. 13 ELR 20029 | Environmental Law Reporter | copyright © 1983 | All rights reserved |