ELR Citation: ELR 20336
No(s). 89-3845 (5th Cir. Dec 12, 1990)

The court rules that the Federal Water Pollution Control Act (FWPCA) reporting and civil penalty provisions provide no de minimis defense for discharges of oil in quantities large enough to create a sheen on the water. An oil company reported each of 12 accidental discharges of oil into navigable waters and appeals the Coast Guard's imposition of civil penalties of $8,800, claiming no injury was established. The court notes that the 1978 FWPCA amendments authorize the Environmental Protection Agency both to prohibit environmentally hazardous substances that may be harmful to the public health or welfare and to measure their presence by a test that avoids elaborated inquiry. Thus, the court holds that the company's discharges of oil, which created a sheen, subject it to civil penalties, regardless of actual injury. Although the original "sheen test" for oil discharges was interpreted only to create a rebuttable presumption of harm applicable to oil spills that occur in harmful quantities, the 1978 FWPCA amendments prohibited discharges that might not be harmful. Since the regulations define as harmful any oil spill causing a film or sheen upon or discoloration of the water, violation of that sheen test subjects defendant to FWPCA civil penalties.

[Briefs in this case are digested in the Pending Litigation binder at ELR 66095.]

Counsel for Plaintiff/Counter-Defendant-Appellee
M. Hampton Carver
Milling, Benson, Woodward, Hillyer, Pierson & Miller
909 Poydras St., Ste. 2300, New Orleans LA 70112-1017
(504) 569-7000

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

Before CLARK, Chief Judge, THORNBERRY, and HIGGINBOTHAM, Circuit Judges.