ELR Citation: ELR 20411
No(s). s. 83-2644 et al (5th Cir. Apr 1, 1985)

The court rules that cleanup cost recovery actions under Federal Water Pollution Control Act (FWPCA) §311(f)(1) are governed by a six-year statute of limitations under 28 U.S.C. §2415(a). The court notes that the FWPCA does not specify a statute of limitations and its legislative history does not suggest which general federal statute of limitations should apply. The court notes that the Act creates a duty for polluters to clean up spills, but does not establish a similar duty for the United States. Rather, the United States may clean up spills and seek reimbursement of actual costs incurred. After reviewing the law of quasi-contract and restitution, the court holds that the government's right of recovery is quasi-contractual and analogous to the right of restitution based in contract law. The six-year limitation for contract actions in §2415(a) therefore applies. The court rejects the polluters' various arguments that the action is founded upon tort and should be subject to the three-year statute of limitations in 28 U.S.C. §2415(b). The absence of defendants' consent to the cleanup is of the essence of quasi-contract. Further, that the cleanup was performed in response to the tort of water pollution is not dispositive. The government seeks not compensatory damages but reimbursement for costs incurred in performing a duty that was primarily defendants'. Also, the court rejects the United States' argument that cost recovery is a purely statutory action outside the limits of §2415. The right to restitution would exist at common law even if the statute did not mention it.

Counsel for United States
Steven J. Delaney
Civil Division, Torts Branch
Department of Justice, Washington DC 20530
(202) 633-4015

James R. Gough, Jack Shephered, Ass't U.S. Attorneys
P.O. Box 61129, Houston TX 77208
(713) 229-2600

Counsel for Vessel Owners
Kent E. Westmoreland, J. Douglas Sutter
Ross, Griggs & Harrison
2800 Four Allen Center, Houston TX 77002
(713) 651-0600

John M. Woods, Sheldon A. Vogel
Thacher, Proffitt & Wood
40 Wall St., New York NY 10005
(212) 483-5800

Gregory P. Mssey
Jones, Tete, Nolen, Hanchey, Swift & Spears
P.O. Box 910, Lake Charles LA 70602
(318) 439-8315

Before REAVLEY, TATE, and HILL, Circuit Judges.