6 ELR 20119 | Environmental Law Reporter | copyright © 1976 | All rights reserved

United States v. Beatty, Inc.

No. 7833-A (401 F. Supp. 1040) (W.D. Ky. July 2, 1975)

ELR Digest

The United States brought a non-jury action under § 11(b)(5) of the Federal Water Pollution Control Act of 1970, 33 U.S.C. § 1161(b)(5), to collect an administrative fine assessed by the Coast Guard, and to recover actual costs of $763.50 for the removal of oil spilled by defendant's vessel in the Ohio River. After an underwater hull fitting on the vessel gave way on September 13, 1972, the vessel's captain ordered the pumps started. Although an 18-year-old deckhand was instructed to stop the pumps if oil was being discharged, approximately 5 to 15 gallons of oil were ultimately discharged into the river, causing a visible sheen and discoloration of the surface. A third party notified the Coast Guard of the oil discharge, and the agency contracted to have the oil removed. Notice of possible violation of 33 U.S.C. § 1161(b)(4) and (5) and 33 U.S.C. § 407 was sent to the defendant. Subsequently, a $2,000.00 civil fine was assessed against the defendant for a "knowing discharge," and notice was given of defendant's right to appeal to the Coast Guard District Commander.

Rejecting defendant's claim that "harmful quantities" were not discharged, the court follows United States v. Board, 491 F.2d 1163, 3 ELR 20434 (9th Cir. 1973), which found the sheen test to be workable and reasonable in its ability to distinguish between harmful and non-harmful oil discharges. Although 15 gallons of oil might be a very small amount, it passes the sheen test and is therefore not de minimis. Congress intended to prohibit any oil discharge which causes a visible sheen. United States v. LeBeouf Brothers Towing Co., 377 F. Supp. 558 (1974), is distinguished; Le Beouf held that penalties under 33 U.S.C. § 1161(b)(5) cannot be enforced if the Coast Guard oil discharge information is derived from the self-disclosure rule in 33 U.S.C. § 1161(b)(4). In the present case, however, that information was obtained from a third party.

The administrative fine is within statutory limits, and cannot be reduced or eliminated by this court. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971). The government is entitled to receive actual, not just reasonable, expenses involved in cleaning up oil discharges. 33 U.S.C. § 1161(f)(1). The government's cause of action based on the Refuse Act, 33 U.S.C. § 407, is a criminal action and must be dismissed since no criminal information or indictment was filed.

The full text of this opinion is available from ELR (5 pp. $0.75, ELR Order No. C-1016).

Counsel for Plaintiff
George J. Long, U.S. Attorney
U.S. Courthouse
Louisville, KY 40202
(502) 582-5911

John J. McLaughlin
Department of Justice
Washington, DC 20530
(202) 739-3475

Counsel for Defendant
James L. Cobb, Jr.
211 East 4th St.
Covington, KY 41011
(606) 261-5777

W. Waverley Townes
Kentucky Home Life Bldg.
Louisville, KY 40202
(502) 582-3891

Allen, J.


6 ELR 20119 | Environmental Law Reporter | copyright © 1976 | All rights reserved