ELR Citation: ELR 21131
No(s). s. 97-35538, 35820 (9th Cir. Apr 20, 1999)

The court affirms, with one exception, a $1.7-million damage award imposed on a shipping company for the costs incurred by the U.S. Coast Guard in monitoring the company's removal of an oil tanker that ran aground in the Shumagin Islands of Alaska. The court first holds that the Oil Pollution Act of 1990 (OPA) and cross-referenced provisions of the Federal Water Pollution Control Act entitle the federal government to recover the Coast Guard's monitoring costs. The Coast Guard's actions were an attempt to mitigate or prevent a substantial threat of discharge, it was monitoring a private action to remove a discharge, and its monitoring was a means of directing private actions to remove the discharge or to mitigate or prevent the threat of discharge of oil. The court further holds that the OPA's general definition of removal costs supports the recovery of Coast Guard costs.

The court then holds that the OPA does not limit the government to recovery of "necessary" removal costs. The words "as may be necessary" in the definition of removal do not purport to be a limitation on reimbursement. Further, nothing in the OPA's liability section limits the federal government to recovery of necessary removal costs.

The court next holds that the Coast Guard's base costs are recoverable. The fact that if this near disaster had not occurred, the Coast Guard personnel would have been paid to perform some other task does not alter the reality that the mishap did occur and that Coast Guard personnel were paid to monitor the spill. These base costs represent real costs to the government and are recoverable to the extent that they are allocable to a response to an oil spill. The court also holds, however, that the government cannot recover penalties under the Debt Collection Act. The Debt Collection Act does not apply if a statute explicitly fixes interest or charges, and the OPA provides for interest. Last, the court holds that both the award of attorney fees to the government and the Coast Guard's rate schedule were proper.

Counsel for Plaintiff
R. Michael Underhall
Civil Division
U.S. Department of Justice
301 Howard St., Ste. 870, San Francisco CA 94105
(415) 744-6491

Counsel for Defendants
Dawn M. Schock
Keesal, Young & Logan
400 Oceangate
P.O. Box 1730, Long Beach CA 90802
(562) 436-2000

Before Tashima and Ezra,¹ JJ.