U.S. v. Marathon Pipe Line Co.

• Decision Date: 22 December 1978
• Docket Number: No. 78-1453,78-1453
• Citation: 589 F.2d 1305
• Parties: , 9 Envtl. L. Rep. 20,004 UNITED STATES of America, Plaintiff-Appellee, v. MARATHON PIPE LINE COMPANY, Defendant-Appellant. Seventh Circuit
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1305

589 F.2d 1305

12 ERC 1588, 9 Envtl. L. Rep. 20,004

UNITED STATES of America, Plaintiff-Appellee, v. MARATHON PIPE LINE COMPANY, Defendant-Appellant.

No. 78-1453.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 30, 1978.

Decided Dec. 22, 1978.

John P. Ewart, Craig & Craig, Mattoon, Ill., for defendant-appellant.

Robert L. Simpkins, Asst. U. S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, and BAUER and WOOD, Circuit Judges.

CASTLE, Senior Circuit Judge.

Marathon Pipe Line Company appeals from the district court's enforcement by way of summary judgment of a $2,000 civil penalty assessed by the United States Coast Guard against Marathon under section 1321(b)(6) of the Federal Water Pollution Control Act (FWPCA) ¹ for a discharge of oil into navigable waters in violation of section 1321(b)(3) of the Act. The issue presented is whether section 1321(b)(6) permits the Coast Guard to assess more than a nominal civil penalty against the owner of a discharging facility where the owner is without fault and the spill was caused by a third party. ² Affirming the district court, we hold that section 1321(b)(6) is an absolute liability provision which contemplates a substantial penalty even in the absence of fault and, accordingly, that the Coast Guard did not abuse its discretion in assessing a $2,000 civil penalty for a discharge of 19,992 gallons of crude oil.

On November 20, 1975 Marathon was notified by local police that a pipeline owned by it had ruptured and was discharging crude oil into the Kaskaskia River in southern Illinois. The company immediately took steps to contain the spill and reported the occurrence to the United States Environmental Protection Agency. In all, 19,992 gallons of crude oil were discharged from the pipeline and 10,920 gallons were recovered or burned, so that approximately 9,072 gallons escaped downriver. Subsequent investigation by the company revealed that a bulldozer had struck the four- inch buried pipe back in June or July of 1975 while hired to dig an irrigation ditch for the owners of the land. The bulldozer operator had reported the damage to the landowners, but as the latter thought that the pipeline was no longer in use, neither ever reported the damage to Marathon. The location of the pipeline was a matter of public record, the easement having been duly recorded with the local recorder's office, and the pipeline was marked in accordance with all federal regulations. It is undisputed that the eventual split in the line resulted from the bulldozer damage and that Marathon was in no way at fault in not learning of either the digging or the damage at any time prior to the spill.

The Statutory Scheme

The FWPCA was enacted "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Toward that end Congress set the goal of eliminating the discharge of all pollutants into navigable waters by 1985. § 1251(a)(1). Section 1321, dealing with oil and hazardous substance liability, sets a "no discharge" policy of immediate effect and prohibits any discharge in harmful quantities. §§ 1321(b)(1) & (3). The section holds owners or operators of discharging facilities ³ liable for clean-up costs, subject to the defenses of act of God, act of war, negligence of the United States Government, or act or omission of a third party. § 1321(f). If the discharged substance is nonremovable, the owner or operator is liable to a variable civil penalty dependent on the amount and toxicity of the substance spilled. ⁴ This "liquidated damages liability" is again subject to the four enumerated defenses. § 1321(b)(2)(B)(iii). Finally, section 1321(b)(6), the immediate focus of our concern here, makes owners and operators liable to a civil penalty of up to $5,000, with no provision for any defenses but with the amount of the penalty to be determined by the Coast Guard, which is instructed to take into account ability to pay and "gravity of the violation." ⁵

Marathon's Statutory and Abuse of Discretion Claims

The civil penalty provision is clearly one of strict liability since fault is not even a requisite for clean-up or liquidated damages liability, and every court which has considered the question has so held. See, e. g., Tug Ocean Prince, Inc. v. United States, 436 F.Supp. 907, 924 (S.D.N.Y.1977); United States v. Atlantic Richfield Co., 429 F.Supp. 830, 836-37 (E.D.Pa.1977); Ward v. Coleman, 423 F.Supp. 1352, 1357 (W.D.Okl.1976); United States v. General Motors Corp., 403 F.Supp. 1151, 1157 (D.Conn.1975); United States v. Eureka Pipeline Co., 401 F.Supp. 934, 942 (N.D.W.Va.1975). However, Marathon claims that, although civil penalty liability attaches without regard to fault, a nominal amount only may be assessed in the absence of any fault on its part. We do not regard General Motors, supra, which also involved zero fault and third party causation, as authority for such a proposition, as the court in that case assessed the one dollar penalty pursuant to the exercise of its own sound discretion in a De novo trial. Here, by contrast, we are asked to review the exercise of discretion by an administrative agency.

In effect, Marathon would have us read into the statute a strict standard of liability for a nominal penalty and a negligence standard of liability for a substantial penalty. We do not believe the plain language of the statute supports different standards for a substantial as opposed to a nominal penalty. We must construe a statute according to its ordinary meaning unless Congress clearly did not intend it to have such meaning, as determined from other parts of the statute or legislative history, or unless Congress could not have intended it to have such a meaning because it would render the statute unconstitutional. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917); March v. United States, 165 U.S.App.D.C. 267, 506 F.2d 1306, 1313-16 (1974). For reasons explained in the section of this opinion dealing with the constitutional issue, we believe the intent of Congress, as manifested in section 1321 taken as a whole, ⁶ is to impose a substantial civil penalty on owners or operators even in the absence of fault and that such an intent is well within the constitutional powers of Congress.

Marathon does not directly address the issue of congressional intent, arguing instead that the Coast Guard misapplied its own administrative guidelines in fixing the amount of the penalty. The statute directs the Coast Guard to consider, in setting a penalty, the owner's ability to pay and the "gravity of the violation." The Coast Guard has interpreted the latter to include size of the spill, the owner's prior record, and the "degree of culpability." ⁷ Thus degree of fault is but one of several factors the Coast Guard will consider in setting a penalty. ⁸ There is no allegation here that the Coast Guard did not consider absence of fault as a mitigating factor, and the evidence indicates that it did, as it is the Coast Guard's stated policy to assess a penalty at or near the maximum of $5,000, ⁹ and Marathon has offered no evidence to show that a spill of crude oil of this magnitude would not ordinarily result in the maximum penalty. Accordingly, we find that the statute allows a substantial penalty in the circumstances of this case and that the Coast Guard did not abuse its discretion in assessing one. ¹⁰

The Substantive Due Process Claim

Marathon asserts that the purpose of the civil penalty is to deter spills and that assessing a substantial civil penalty in the absence of fault does not meet the due process requirement that legislative means bear "a reasonable relation to a proper legislative purpose, and (be) neither arbitrary nor discriminatory." Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 536, 78 L.Ed. 940 (1934). First, we note that the Supreme Court has not invalidated an economic regulation on substantive due process grounds since 1937 ¹¹ and that even in the Nebbia case relied on by Marathon the Court adopted a deferential stance toward a state legislature, ¹² sustaining legislative regulation of milk prices against a retailer's assertion of freedom of contract and property right claims.

Aside from the deference we would in any event have to accord Congress in the field of economic regulation, Marathon's claim suffers from the more basic defect that deterrence is not the sole purpose of the civil penalty, or for that matter of strict liability in general. Strict liability, though performing a residual deterrent function, is based on the economic premise that certain enterprises ought to bear the social costs of their activities. ¹³ In the FWPCA in general, Congress has made a legislative determination that polluters rather than the public should bear the costs of water pollution. ¹⁴ In section 1321, the clean-up, liquidated damages, and civil penalty liabilities all serve to shift the cost of oil and hazardous substance pollution onto the private sector. The economic, rather than deterrent, rationale underlying section 1321 is evidenced by the fact that none of the three liabilities created by the section is conditioned on a finding of fault. The fact that Congress carved out very narrow defenses (not including absence of fault) to the first two liabilities does not invalidate a third liability not accorded any defenses at all. Congress had the power to impose a full enterprise liability on the private sector but instead opted for the compromise position of narrow defenses for the first two liabilities and no defense to the third and most limited liability, which in any event could not exceed $5,000.

The purpose of the FWPCA and of section 1321 is to achieve the result of clean water as well as to deter conduct causing spills. The civil penalty serves the Act's goal of pollution-free water by providing a means of funding the...