United States v. Remington

No. 76-205 (D. Or. March 21, 1978 and May 9, 1978)

In an action for a civil penalty and cleanup costs resulting from an oil spill, the court awards cleanup costs of $53,360.67 to the United States pursuant to § 311 of the Federal Water Pollution Control Act. Defendant was a contributing cause of the spill because he failed to take reasonable precautions against vandalism which resulted in the release of oil from a storage tank on defendant's property into the waters of the United States. The court also finds that the Coast Guard's assessment of a civil penalty, pursuant to § 311, is supported by the record, and defendant was not denied due process in the administrative proceeding.

Counsel for Plaintiff
Jack G. Collins, Thomas C. Lee, Ass't U.S. Attorneys
506 U.S. Courthouse, P.O. Box 71, Portland OR 97207
(503) 221-2101

Counsel for Defendant
Charles T. Smith
Jones, Lang, Klein, Wolf & Smith
1 S.W. Columbia, Portland OR 97258
(503) 222-4422

Allen T. Murphy
Richardson, Murphy & Nelson
218 Portland Labor Center, 201 S.W. Arthur St., Portland OR 97201
(503) 228-2366

[8 ELR 20675]

Takasugi, J.:

Findings on Plaintiff's First Claim

Hearing having been held before the court on February 13, 1978, upon plaintiff's Motion for Summary Judgment or, in the alternative, for Partial Summary Judgment, the court finds as follows with respect to Plaintiff's First Claim:

1. Defendant Edgar A. Remington, doing business as Tillamook Asphalt Pavers, was on and about April 26, 1974, the owner of an oil storage tank located at Bay City, Oregon, from which oil was discharged into the Kilchis River and adjoining shorelines within the District of Oregon.

2. The oil spill occurred on April 26, 1974, at an asphalt batching plant which was at that time owned by defendant and which had formerly been operated by him.

3. In the occurrence of the above spill, oil in harmful quantities, within the meaning of 33 U.S.C. § 1321(b), was discharged into the waters of the United States. See 4 C.F.R. § 110.3(b) and United States v. Boyd, 491 F.2d 1163 [3 ELR 20434] (9th Cir. 1973).

4. The United States Coast Guard, by letter to the defendant of July 11, 1974, proposed to assess a civil penalty of $5,000.00 against the defendant, pursuant to the requirements of 33 U.S.C. § 1321(b)(6).

5. Defendant, through his counsel, requested and obtained an informal hearing, which was held before Captain Beckwith, U.S. Coast Guard, on September 25, 1974. Defendant was represented at said hearing by his counsel, who made a presentation on his behalf.

6. After due consideration of the statutory requirements bearing upon such civil penalties, the Coast Guard, on September 30, 1974, imposed a civil penalty of $2,000.00 against the defendant, notifying him of said penalty by letter of that date.

7. Defendant, by letter of October 29, 1974, from his counsel, initiated an administrative appeal from the imposition of said civil penalty. The sole ground stated for said appeal was that defendant's "Constitutional rights to due process have been violated." Defendant submitted no argument or brief to support this contention, although he was advised to do so in a telephone conversation of March 17, 1975, between a Coast Guard officer and his counsel.

8. Defendant's appeal was denied on May 27, 1975, by letter of Rear Admiral R. A. Ratti, Chief Counsel of the Coast Guard.

9. The court finds that defendant was accorded due process of law in the Coast Guard's administrative proceeding. In this regard, the Coast Guard held the hearing which is required by law, and defendant was accorded sufficient opportunities to present his factual and legal points both in opposition to and in mitigation of the civil penalty.

10. The Federal Water Pollution Control Act, 33 U.S.C. § 1321(b)(6) requires the imposition of a civil penalty in the above circumstances.

11. The civil penalty of $2,000.00 imposed by the Coast Guard, and not paid by the defendant, is supported by the administrative record in this case, and no facts or circumstances have been raised which would warrant the court's imposition of a lesser civil penalty.

Accordingly, the court affirms the Coast Guard's imposition of a civil penalty of $2,000.00 against the defendant and arising from the oil spill of April 26, 1974, from his facility, and Judgment for the same amount will be entered for the plaintiff and against the defendant.

Memorandum

The court after careful reconsideration as to the Second Claim of the Complaint (for oil spill cleanup expenses) of its Order of March 16, 1978 on Plaintiff's Motion for Summary Judgment, having read the papers submitted, grants plaintiff's motion.

Defendant has not shown that he took reasonable precautions to prevent or forestall the assumed intervention by a third party vandal. Defendant is thus a contributing cause of the oil spill and the assumed third party vandal cannot be the sole cause under § 311(f)(2).

It is undisputed that defendant allowed a potentially [8 ELR 20676] dangerous substance to remain in an abandoned storage facility without even providing a required barrier and drainage to prevent a spill from reaching the Kilchis River. It is undisputed that defendant knew there was a large quantity of oil in the tank. It is undisputed that numerous acts of vandalism had taken place on the site prior to the spillage in question and that defendant was aware of these incidents. Besides windows being broken and a cable cut, a lock had been broken on a shed. However, defendant failed after these incidents to take reasonable precautions.

Defendant points to several facts as being sufficient to prevent summary judgment being granted:

1. He notified police of the vandalism. However, this would not meet defendant's obligation.

2. The State Department of Fish and Wildlife objected to his use of a gate and cable system. However, this also does not release defendant of his obligation under statute. Defendant could easily have drained the tank and built a containment device.

3. A chain and a lock were on the oil valve. However, a lock had previously been broken on the property, vandals were a known problem, no fence was constructed around the property or around the oil storage tank, and, most significantly, the abandoned tank was not drained and no containment device was built as required.

From the undisputed evidence reviewed supra there is nothing to show that defendant exercised the required level of reasonable care so that he would not be considered a contributing cause of the oil spill.

The Coast Guards' internal costs in the oil spill cleanup were $9,138.46; contract payments of $44,222.21 were made by the United States to Willamette Tug and Barge Company for its cleanup services in connection with this spill.

The United States is entitled to judgment as a matter of law in the amount of $53,360.67 actual cleanup costs for the spill, to which defendant's own acts and omissions were a contributing cause.