ELR Citation: ELR 20594
No(s). 00-1708 (1st Cir. Apr 11, 2001)

The court upholds a U.S. Environmental Protection Agency Environmental Appeals Board decision finding a textile mill operator liable and imposing penalties against him for failing to prepare and implement a spill prevention control and countermeasure (SPCC) plan and for discharging oil into a navigable waterway in violation of the Clean Water Act. The oil spill occurred after a gasket on a boiler ruptured, causing oil to eventually enter the Androscoggin River in Maine. The court first holds that contrary to the operator's objections, the operator was subject to SPCC plan requirements. Although the mill is located in an industrial area out of sight of any navigable waters, the path taken by the oil was not necessarily foreseeable, the oil spill occurred during a period of high water, and the mill exhibited locational and geographical characteristics that made a discharge to navigable water reasonably foreseeable. In addition, the operator failed to show that its storage capacity fell below the minimum amount required for application of the SPCC regulations. The court next holds that because an above-ground tank installed three months after the operator removed his underground storage tanks was a modification rather than a new facility, the operator was liable for failing to implement an amended SPCC plan in a timely fashion. The court finally holds that the $43,643 penalty assessment imposed against the operator was reasonable.

Counsel for Petitioner
Martha C. Gaythwaite
Friedman, Babcock & Gaythwaite
Six City Ctr., Ste. 400, Portland ME 04112
(207) 761-0900

Counsel for Respondent
D. Judith Keith
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Lynch, J. Before Selya and Lipez, JJ.