United States v. C & R TRUCKING CO.
Decision Date | 28 April 1982 |
Docket Number | Civ. A. No. 81-0071-P(H). |
Court | U.S. District Court — Northern District of West Virginia |
Parties | UNITED STATES of America, Plaintiff, v. C & R TRUCKING COMPANY, Defendant. |
Betsy C. Steinfeld, Asst. U. S. Atty., Wheeling, W. Va., Carol E. Dinkins, Asst. Atty. Gen., Land and Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., Diane L. Donley, Atty., Environmental Defense Section, Land and Resources Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff.
Ronald W. Kasserman, Galbraith, Seibert, Kasserman, Farnsworth, Gillenwater & Glauser, Wheeling, W. Va., W. H. Ballard, II, Ballard & Brumfield, Welch, W. Va., for defendant.
The Government instituted this action on November 27, 1981, seeking to assess a civil penalty against the Defendant under the Clean Water Act1 and to recover the costs which it incurred in removing a quantity of oil from a tributary of the Ohio River which was allegedly discharged from the Defendant's truck on or about February 19, 1977.2 The Defendant moves this Court to dismiss this action for the reason that it is barred by the three year limitation on the commencement of an action by the Government to recover on a tort claim.3 The parties have submitted memoranda and supplemental materials in support of their respective positions. For the reasons set out below, this Court hereby denies Defendant's motion to dismiss.
On or about February 19, 1977, one of the Defendant's tank trucks was involved in an automobile accident on West Virginia Route 2 in Tyler County, West Virginia. As a result of that accident, approximately 6,000 gallons of oil spilled from the Defendant's truck, 3,000 gallons of which allegedly entered into a tributary of the Ohio River.4 After the Defendant allegedly refused to ratify a contract with a "clean-up" contractor, the U. S. Coast Guard arranged for the removal of the discharged oil from the aforementioned tributary and its shoreline, pursuant to 33 U.S.C. § 1321(c).5 These clean-up activities continued until March 18, 1977.6 On November 21, 1977, the Coast Guard assessed a Two Thousand ($2,000.00) Dollar penalty against the Defendant as a result of the aforementioned oil spill. Defendant has continued in its refusal to pay this penalty, notwithstanding the fact that the Coast Guard affirmed the assessment on May 8, 1978.7
In the case at bar, there are two distinct causes of action. The first is to recover removal costs, pursuant to 33 U.S.C. § 1321(f)(2). The second is to assess a civil penalty, pursuant to 33 U.S.C. § 1321(b)(6)(B).
The Government's cause of action to recover removal costs against the Defendant under Section 311(f)(2) of the Clean Water Act accrued as of March 18, 1977.8 Since the Clean Water Act does not contain a specific limitation on the commencement of an action by the Government to recover its removal costs, this Court must apply 28 U.S.C. § 2415, which provides in pertinent part:
The Defendant argues that the Defendant's cause of action to recover its removal costs under Section 311(f)(2) of the Clean Water Act is a statutorily created nuisance action which sounds in tort. The Government, on the other hand, argues that its cause of action under Section 311(f)(2) sounds in quasi-contract and that 28 U.S.C. § 2415(a) is the applicable statute of limitations.9 This Court has only been able to find one unreported district court decision which has addressed this issue.10
In U. S. v. Poughkeepsie Housing Authority, et al. C.A.No. 80-1998, Slip Op. at 8-9 (S.D.N.Y., Oct. 16, 1981), the court held that the six year limitation contained in 28 U.S.C. § 2514(a) was applicable to an action brought by the Government to recover its removal costs under Section 311(f)(2) of the Clean Water Act. In reaching this conclusion, the Poughkeepsie Housing Authority court reasoned that:
This Court hereby adopts the Poughkeepsie Housing Authority court's rationale as its own and holds that 28 U.S.C. § 2415(a) is the applicable statute of limitations in an action brought under Section 311(f)(2) of the Clean Water Act. In the case at bar, therefore, this Court finds that the Government's cause of action is not barred by the applicable six year statute of limitations.
The penalty prescribed by Section 311(b)(6) of the Clean Water Act, 33 U.S.C. § 1321(b)(6), is civil rather than penal. See U. S. v. Eureka Pipeline Co., 401 F.Supp. 934 (N.D.W.Va.1975). Since the Clean Water Act does not contain a specific limitation on the commencement of an action to assess a civil penalty, this Court must resort to 28 U.S.C. § 2462, which provides:
"Except as otherwise provided by act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon."
In the case at bar, the oil spill is alleged to have occurred on or about February 19, 1977. The Government instituted this action on November 27, 1981, within the five years prescribed by 28 U.S.C....
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