651 F.2d 734 | Ct. Cl. | 1981
This case comes before the court on defendant’s exceptions to the recommended decision of Trial Judge Louis Spector, filed September 4, 1980, pursuant to Rule 134(h), having been submitted on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge’s recommended decision, as hereinafter set forth,
OPINION OF TRIAL JUDGE
During a labor strike at plaintiffs oil terminal in Revere, Massachusetts, unknown vandals opened valves on two railroad tank cars which had previously been filled at plaintiffs facility, resulting in the
After consideration of the facts and arguments ably presented by both sides at trial and in the briefs, it is herein concluded that plaintiff has established all of the elements required by the Act to recover its reasonable expenses, and that judgment should be entered for plaintiff. Defendant’s counterclaim should accordingly be dismissed.
I. FACTS
A. Basic Layout of the Union Oil Terminal
The Union Petroleum Corporation operates an oil terminal and distribution facility on roughly 5 acres of land along Lee Burbank Highway in Revere, Massachusetts. It includes a tank farm for the storage of gasoline and oil, loading racks for trucks and railroad tank cars, and a dock extending into Chelsea Creek at which oil tankers moor. The tank farm is located on the south side of Lee Burbank Highway and is not relevant to this case. The gasoline and oil loading racks for trucks, the ship docks, the railroad tank car loading racks, office buildings, warehouse, control shack and guard shack are on the north side of Lee Burbank Highway (hereinafter the "Union yard” or the "yard”).
A railroad spur runs into Union’s yard just inside its northern perimeter. Union’s facility contains a loading rack over this railroad spur line for the loading of railroad tank cars, which is part of the terminal operation. The part of Union’s property containing the loading racks for railroad
The Union yard is surrounded by a chain link fence, containing five gates. One of these gates, on the north side of the yard (Gate 1), is about 8 feet wide. Railroad tank cars enter Union’s yard through this gate. The others, on the south side (that is, the Lee Burbank Highway side) of the yard, are about 20 feet wide. There is no fence behind a building known as the Airborne Freight warehouse (not owned by Union) on the north perimeter of the Union yard. Nor is there a fence for approximately 75 feet beyond the west end of the warehouse. However, in place of a fence there is a large pipeline. There was testimony that a person could crawl under the pipeline system, but that "it would be very difficult.” The narrow strip of land owned by the B&M Railroad between the Union yard and Chelsea Creek is not surrounded by fence.
Because the terminal is designed to operate on a 24-hour basis, the Union yard is also well equipped with external lighting. There are 1000-watt mercury street lights extending over each of the tank cars at the tank car loading rack. Behind the Airborne Freight warehouse, also along the north perimeter of the yard, there are lights of 200-400 watts each. The office building and gasoline racks in the interior of the yard are also well lighted. Finally, there are lights at Gate 3 on Lee Burbank Highway.
Union’s terminal employs an "oil separator,” which is a pollution control device intended to prevent oil from being discharged into the creek. The drain leading to this separator is located under the railroad tank car loading rack. Rainwater and oil flow through catch basins into the separator where the oil is separated from the water. The water then flows into Chelsea Creek and the oil stays on top of the separator where it is periodically pumped out. The
The Union yard also has a spill containment system in the area of the loading rack. The land on the loading rack side of the railroad tracks is significantly lower than the tracks, and also lower than the land on the Chelsea Creek side of the tracks. The lowest area is behind the Airborne Freight warehouse on the north perimeter of the yard. This low-lying area serves as a containment pocket. In addition, there is very little slope from the railroad tracks toward Chelsea Creek. Chief Williams of the U.S. Coast Guard testified that because of this containment basin, the oil from this spill would not have reached Chelsea Creek but for previously unknown "ancient” wooden culverts under the tracks, owned by the B&M Railroad.
In 1975 and prior thereto, the U.S. Coast Guard regularly inspected Union’s onshore facility, dock area and the pipeline area that leads to the dock, on a quarterly basis. Coast Guard inspections were for the purpose of determining the adequacy of containment systems of oil tank farms to check whether oil spills would flow into navigable waters, and to examine lighting and safety requirements and containment systems under pipelines. If violations had been found, the Coast Guard would have issued a notice of violation. No such notices are offered or contained in the record.
The record indicates that Union was charged with discharging oil into navigable waters of the United States on only one occasion prior to 1975. On December 21,1972, a leak in an oil tank truck on Union’s property discharged a small quantity of oil into Chelsea Creek. A civil penalty of $500 was assessed against Union for that minor discharge.
The Environmental Protection Agency, which was responsible for Union’s Spill Protection Plan, also inspected Union’s premises. At no time prior to April 1975, did that agency make any recommendations to Union with respect to its containment facilities.
In addition, the Commonwealth of Massachusetts, which was responsible for issuing the necessary marine oil terminal license, inspected Union’s premises. Union’s marine oil
Frederick L. Forest, plaintiffs operations manager, testified that at no time during his employment at Union from 1964 to 1975 had he ever heard of any vandalism or witnessed any vandalism of tanks or tank cars resulting in a spillage of oil. He also testified that he was aware of no similar occurrences at any other oil concerns or tank farms. Lt. Commander Donald Tilton of the U.S. Coast Guard testified to the same effect.
B. Standard Railroad Tank Car Loading Procedures
Railroad tank cars are typically brought under the Union loading racks in groups of three. Once they are in place under the racks, a Union employee checks the valve on the bottom of each car, and attaches a numbered seal to the valve handle. Because of the design of the tank cars, no locks are placed on these handles. The general practice in the oil industry is to place seals on tank cars to indicate whether they have been tampered with. It would take a pair of pliers to break the seal which is installed through a % inch orifice. Breaking of a lock (if one were installed) would be a simple matter for a determined vandal. The Department of Transportation does not require locks. The Union employee then opens the cover on top of the tank car and inserts the loading tube, and after opening a valve on the loading arm, he proceeds to load the tank car. The spur on Union’s property is not long enough to accommodate an entire train of tank cars. Therefore, after the three cars are filled in this manner and the dome covers replaced, Union calls upon the B&M Railroad to move the three cars to the parallel B&M spur just off Union’s property. This process is repeated until nine cars have been filled, at which time all nine cars are linked up for one train and moved to a power plant where the oil is consumed.
On April 3, 1975, a labor union steward notified plaintiffs operations manager, Mr. Forest, that the union would go on strike at 4:00 p.m. that day. He immediately put Union’s pre-established contingency plans into effect. Mr Forest first called the Revere Police Department and requested two officers on a 24-hour basis. At least two Revere police officers were continually on duty at the Union yard beginning at approximately 8:00 p.m. on April 3, 1975.
On the morning of April 4, 1975, Mr. Forest telephoned Hallmark Security, the private security agency employed by Union for 3 to 4 years prior to the strike. He testified that in his conversation with Mr. Prew, President of Hallmark Security, he requested that a security guard be stationed in the gasoline yard. The guard would be expected to watch the gasoline loading rack, walk the perimeter of the yard, past Gates 4 and 5 along the west side of the premises, and check in back of the Airborne Freight warehouse and in the area of the railroad tank cars at the extreme northern end of the yard.
Also on April 3, 1975, Mr. Forest informed a Mr. Mark Hoyt at Airborne Freight of the strike, and asked him to leave all the lights on in back of the warehouse. Mr. Forest
One of the security guards employed by Hallmark, a Richard Delaney, testified that the lights over the tank car loading racks were on during the first night of the strike, but were not on during the night of the spill.
Finally, at least two Union employees were stationed in the control shack in the yard during the strike. Although some parts of the yard, including Gate 1, could not be seen from the control shack, the tank car loading racks were visisble.
D. Oil Discharge, April 6, 1975
The labor strike continued into the night of April 5-6, 1975. Teamsters Union pickets stood in front of Union’s property on Lee Burbank Highway during the night. Union remained open on a 24-hour basis.
On Sunday, April 6, 1975, sometime between midnight and 8:00 a.m., oil was discharged from two railroad tank cars, part of which reached Chelsea Creek. The tank cars were owned by the Union Tanker Corp. and leased to H. N. Hartwell & Sons (hereinafter "Hartwell”). Hartwell was also owner of the oil discharged from the tank cars.
The two tank cars were among six brought to Union’s loading rack by employees of the B&M Railroad on April 5, 1975. Each was filled with approximately 30,000 gallons of No. 6 fuel oil by a Mr. E. J. DeRose, a Union employee. After the cars had been filled and the covers replaced according to standard Union procedures, three of the cars were moved at Union’s direction by railroad employees to the B&M spur adjacent to the loading rack on land owned
The oil was discharged from the tank cars by unknown parties, as an act of criminal vandalism. Union surmises on the basis of footprints found in the oil on the ground after the discharge, that the vandals entered and left Union’s property through Gate 1 at the northern end of the Union yard.
The discharge was discovered by Mr. Forest at about 8:15 a.m. on Sunday, April 6, 1975, when he first arrived .at Union’s terminal for the day. At the time he arrived, the oil on the ground was the consistency of tar and was several inches deep in some places on Union’s property.
E. Union’s Efforts to Clean Up the Spill
Immediately after discovering the spill, Mr. Forest contacted the U.S. Coast Guard, the cleanup contractor Coastal Services, Inc., the Commonwealth of Massachusetts, the Revere Police Department and the Revere Fire Department. He subsequently contacted Mr. Olson of H. N. Hartwell & Sons, Inc., the owner of the oil and lessee of the tank cars. Coastal Services, Inc. is a corporation which specializes in cleaning up oil spills and it worked to clean up this oil spill from April 6,1975 until May 1,1975.
At approximately 10:15-10:30 a.m., Chief Frank Williams, a noncommissioned officer of the U.S. Coast Guard, arrived on the scene. Chief Williams served as the supervisor of the cleanup operations for the Coast Guard. By the time he arrived, Coastal Services, Inc. had already begun to clean up the discharge of oil at Union’s direction.
The record contains contradictory testimony on the issue of Chief Williams’ comments to Union concerning liability for the spill and responsibility for cleanup operations. Mr. Forest testified that upon Chief Williams’ arrival at the site, he was asked "if the Coast Guard would pick up the
Chief Williams testified that at no time did he state "you own that spill.” He further testified that Lt. Littlefield did not visit the spill site on April 6, and furthermore that Littlefield was not at that time a member of the Coast Guard. Chief Williams considered his duties at the spill site to be passive and advisory, "to provide any assistance that they [Union] needed [and] to relay any information to the Captain of the port,” and to act as "liaison” between Union and the Coast Guard.
Chief Williams’ superior officer in the Coast Guard, Lt. Commander Donald Tilton, testified that he did not believe that he (Tilton) had the authority to order Union to continue cleaning up the spill and that he did not attempt to order Union to do so. Nevertheless, he testified that "I probably put it into words such as T urge you to continue it.’”
A letter from the Coast Guard to Union dated April 15, 1975, signed by Chief Williams, strongly supports Union’s version of the facts, namely, that the Coast Guard considered Union responsible for the spill and for its cleanup. The letter states, in relevant part:
This is to inform you that a pollution incident has occurred * * * for which you and/or your facility are considered responsible.
* * * * *
* * * [Y]ou are responsible for taking adequate action to remove the pollutant or adequately mitigate its effect.[8 ]
At a meeting between Union representatives and the Coast Guard on April 15,1975, also attended by a representative of Hartwell, Mr. Forest stated that Union did not feel
Union was initially of the opinion that part of the oil had gone through Union’s earlier-described oil separator and then into Chelsea Creek. However, the oil continued to reach Chelsea Creek even after the separator had been shut off. On April 13, 1975, Union concluded that the oil was flowing from three "ancient” wooden drainage culverts beneath the B&M tracks into Chelsea Creek. The culverts had at some time in the past been installed by the B&M Railroad and were owned by the railroad. They had been covered with debris and their existence had previously been unknown.
The Coast Guard also concluded that part of the oil from the tank cars reached Chelsea Creek through the culverts. Union first learned of the existence of these wooden culverts on April 13, 1975. Under the direction of the B&M Railroad and on an overtime basis, the entrances to the culverts were blocked with boards and gravel on April 13. But for the culverts, the oil would not have reached Chelsea Creek.
E. The Coast Guard’s Conclusion of Cleanup Operations
On April 21,1975, Union notified the Coast Guard that it intended to discontinue cleanup operations, and at 12:00 o’clock midnight, April 21, 1975, Union ceased cleanup operations. On April 22, 1975, the Coast Guard sent letters to Union, the B&M Railroad, and H. N. Hartwell & Sons, informing each of them that the Coast Guard was thereafter assuming cleanup responsibilities to remove the pollutants resulting from the pollution incident of April 6, 1975 for which they were considered responsible. The Coast Guard thereafter took over the remaining cleanup operations. Coastal Services, Inc. continued cleanup operations for the Coast Guard until May 1, 1975. The parties agreed
F. Expenses Incurred in Cleanup Operations
Union received five invoices from Coastal Services, Inc. for cleanup operations. Union paid these invoices by checks in the total amount of $99,952.17.
The Coast Guard paid Coastal Services, Inc. $34,610.91 for its services in cleaning up the discharge of oil into Chelsea Creek. The Coast Guard also incurred reimbursable personnel and vehicle expenses of $251.64. The total costs incurred by the Coast Guard in removing the oil discharged into Chelsea Creek were thus $34,862.55.
G. Coast Guard Findings as to Liability for the Spill
On January 8, 1976, the Coast Guard held an informal hearing to determine whether Hartwell should be held liable for a civil penalty pursuant to the FWPCA for the spill of April 6, 1975. The Coast Guard imposed a civil penalty of $2500 and made the following findings:
The discharge was unintentional.
The discharge could not have been prevented using reasonable care.
The discharge was not caused by an act or omission of a type previously attributable, insofar as records available to me, to you so as to place you on notice of the particular hazard.
The discharge was not a violation of the pollution prevention regulations.
The record does not indicate that you took special steps to try to avert the specific discharge in that
* * * [T]he discharge was unforseeable.
* * * [A] minimum amount of oil was discharged.[10 ]
Moreover, Lt. Commander Tilton testified that he believed that Union used reasonable care to prevent the spill, and that it was unforeseeable. He reported his conclusions to his superior officers in the Coast Guard.
The basic congressional policy furthered by the FWPCA, as declared in the Act itself, is "that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States.”
Having fully complied with the notice provisions of the Act immediately upon discovering the spill, and having commenced cleanup operations at its own expense immediately thereafter, plaintiff seeks reimbursement of its clean
(i)(l) In any case where an owner or operator of a vessel or an onshore facility or an offshore facility from which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section acts to remove such oil or substance in accordance with regulations promulgated pursuant to this section, such owner or operator shall be entitled to recover the reasonable costs incurred in such removal upon establishing, in a suit which may be brought against the United States Government in the United States Court of Claims, that such discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party without regard to whether such act or omission was or was not negligent, or of any combination of the foregoing causes. [Emphasis supplied.]
This court has analyzed claims brought pursuant to this section as comprised of four elements:
1. A discharge of a harmful quantity of oil from a facility owned or operated by plaintiff;
2. A discharge caused solely by (inter alia) an act or omission of a third party;
3. Removal of the oil in accordance with regulations; and
4. The expenditure by plaintiff of monies to remove the oil.
The third and fourth elements are not here in dispute. Defendant admits that the spill was cleaned up in accordance with federal regulations, and the monies expended on cleanup operations by both parties have been stipulated. The issues are thus reduced to (a) whether the oil discharge occurred from a facility owned or operated by plaintiff; and (b) if so, whether the discharge occurred solely as a result of the acts of third parties. Defendant takes the inconsistent positions that plaintiff acted as a volunteer, because it did not own or operate the facility from which the oil was discharged; and that plaintiff was responsible for the discharge.
The reimbursement remedy of the Act is available to "an owner or operator of * * * an onshore facility” from which a discharge has occurred.
1. "Onshore Facility”
The Act broadly defines an "onshore facility” as:
[A]ny facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States other than submerged land. [19 ]
There is no doubt that under this definition the Union terminal, consisting in part of a transportation facility which includes loading racks for trucks and railroad tank cars, and a dock extending into Chelsea Creek for oil tankers, is an "onshore facility.” It is further undisputed that the spill issued from two tank cars which, as "rolling stock,” also meet the statutory definition of an "onshore facility.” The tank cars had, on the previous day, been filled by a Union employee at the tank car loading rack as a routine part of Union’s oil terminal operation. One of the tank cars was not moved from the loading rack on Union’s property prior to the discharge, and the other was moved a few feet away to a parallel spur just beyond Union’s yard on land owned by the B&M Railroad. The question is thus whether the relevant "facility” is plaintiffs oil terminal, of which the tank cars were an integral although temporary part, or whether the "facility” is narrowly to be construed as the tank cars alone, which plaintiff did not lease or operate.
The clearly expressed overall policy embodied in the Act, as noted above, is to prevent spills from occurring. A natural corollary of that policy, as already stated by the
The court has in this case already expressed doubt "that the tank cars can be properly regarded as a facility wholly segregable from the storage and distribution facility plaintiff operated at Revere.”
This court has previously questioned the validity of a "hypertechnical approach” to the statutory definitions of the Act that would be "likely to delay cleanup operations while arguing over the responsibility.”
Finally, Union was encouraged to initiate and continue its cleanup operations because if the Coast Guard took over the cleanup, and it was later determined that Union was in fact responsible, Union would have been liable under the Act for the full amount of the Coast Guard’s costs, even if those costs were unreasonable.
The Act defines "owner or operator” of an onshore facility as "any person owning or operating such an onshore facility.”
Even if it were narrowly concluded that the tank cars were the "facility” from which the discharge occurred, plaintiff would still, for the purposes of the Act, be the "operator” of the tank cars at the time of the discharge. Loading of the tank cars by Union employees was an integral part of Union’s oil distribution system. Overnight storage of the filled tank cars either at the loading rack or on the parallel railroad spur was at Union’s direction and control. Union was operationally responsible for the tank cars until they were linked together and sent down the tracks to the utility using the oil. That one of the cars was located just off plaintiffs property is not significant The question is one of operational control, and Union’s control undoubtedly equalled that of either of the other possibly responsible parties.
B. The Discharge Was Caused Solely by the Act of Third Parties
The statute also requires, as a precondition of reimbursement of cleanup expense that the discharge be "caused solely by * * * (D) an act or omission of a third party * * *.” (Emphasis supplied.)
*73 This court has made it clear that a claimant cannot recover, even if a vandal or third party immediately caused the spillage, if the claimant does not prove that reasonable actions had been taken to prevent or forestall such intervention by the third party. [Emphasis supplied.] [30 ]
The parties here agree that unknown vandals committing criminal acts were the immediate cause of the Union spill. The focus thus turns to plaintiffs precautionary measures against vandalism. The standard to be applied is one of "reasonable care.”
This court has previously considered several cases involving very similar circumstances. None, however, involved an open and operational oil terminal. In Chicago, Milwaukee, supra, vandals entered plaintiffs lighted property through a gate in the perimeter fence, broke into a locked boiler room, and opened several pipe valves, the handles of which had been removed. The result was the discharge of a large quantity of oil. Noting these facts and also that plaintiff had purchased the premises only 10 days prior to the act of vandalism, the court held that plaintiff had taken sufficient steps to forestall vandalism, and that the spill was therefore due "solely” to the acts of the third party vandals.
Quite different facts were presented by Proctor Wholesale Co. v. United States, 215 Ct. Cl. 1049 (1978), where plaintiffs property was not protected by fencing, external lighting or security patrols, and plaintiff had taken "no action” to restrain access by third persons to its oil tanks. The court held that the circumstances were "conducive to vandalism” and denied recovery. Likewise, in City of Pawtucket v. United States, 211 Ct. Cl. 324 (1976), where plaintiffs fencing was incomplete and had "gaping holes,” the outdoor lighting was burned out, tank spigots were unprotected and drainage facilities were in disrepair, the spill was concluded not to be caused "solely” by the acts of third party vandals.
Finally, the court has no reason to question the adequacy or reliability of plaintiffs oil containment facilities should a mishap nevertheless occur. Plaintiffs yard is equipped with an oil separator that was apparently functioning properly
Finally, Lt. Commander Tilton testified that in his opinion Union had used reasonable care to prevent the spill
In light of plaintiffs normal security and spill containment measures, the increased security measures undertaken as a result of the labor strike, the Coast Guard’s conclusions as to the reasonableness of plaintiffs precautions, and the unforeseeability of this type of vandalism, it is concluded that plaintiff exercised "reasonable care” as required by the Act and by the decisions of this court.
Having established that plaintiff is the owner or operator of the onshore facility from which an oil discharge has occurred, and that the discharge was solely the result of the act of unknown third parties, plaintiff is entitled to reimbursement of its stipulated cleanup costs of $99,952.17. Defendant’s counterclaim for its cleanup cost must, for the same reasons, be dismissed.
Upon the findings and the foregoing opinion, which are adopted by the court, the court concludes as a matter of law that plaintiff is entitled to reimbursement of its stipulated cleanup costs of ninety-nine thousand, nine hundred fifty-two dollars and seventeen cents ($99,952.17), and judgment is entered in that amount; and that defendant is not entitled to recover on its counterclaim and that it be and the same is hereby dismissed.
Although the court adopted the trial judge’s separate findings of fact, which are set forth in his report, they are not printed herein since such facts as are necessary to the decision are contained in his opinion.
The testimony is in sharp conflict as to whether the police were instructed to patrol the Union yard, and further as to whether they did in fact patrol, either on foot or in their patrol cars. See, e.g., Tr. 75,392. It seems highly unlikely that Union would request extra police protection, and then instruct the police to ignore plaintiffs facility except for the gate area on Lee Burbank Highway. Even in this unlikely event, plaintiffs efforts to secure extra protection from police and from its private security company are sufficient to meet the "reasonableness” standard required here, especially since plaintiff had no reason to anticipate the sort of senseless vandalism which subsequently occurred.
The record contains conflicting testimony as to what instructions were communicated to the Hallmark Security guards, and as to whether they did in fact patrol the areas identified by Mr. Forest. See, e.g., Tr. 77-78, 208,216, 348-52. A security guard’s normal job was to stay in the guard station inside the yard, logging in all vehicles entering and leaving the yard, and to check the area for fires, spills, and burglars. It is possible that Mr. Forest’s special instructions for the strike were not communicated to the security guards before they reported for duty. It is also possible that cold temperatures during the night kept the guards close to the guard station despite their instructions.
Mr. Delaney had been discharged by Hallmark as a result of a complaint by Union as to his competence. He was an obviously biased and hostile witness, and his testimony, as observed, is entitled to little if any weight.
Tr. 99-100.
Id.
Tr. 296.
Tr. 281.
P. Ex. 21.
Tr. 141.
D. Ex. 14.21 January 1976.
33 U.S.C. § 1321(b)(1) (1976).
Id. at § 1321(b)(5).
Id. at § 1321(b)(1).
Id. at § 1321(f)(2).
Id. at § 1321(b)(6).
Id. at § 1321(g), (h).
33 U.S.C. § 1321(i)(l).
Quarles Petroleum Co. v. United States, 213 Ct. Cl. 15, 19, 551 F.2d 1201, 1204 (1977), citing Yankee Metal Products, Inc. v. United States, 209 Ct. Cl. 770 (1976).
33 U.S.C. § 1321(a)(10).
Union Petroleum Corp. v. United States, 218 Ct. Cl. 667 (1978).
To draw a parallel, it is not public policy that one first determine the cause of a fire, before attempting to extinguish it. Rather it is sensible to take emergency measures to extinguish a fire, and to reserve an investigation of the cause for later.
Union Petroleum, note 20, supra, at 668-69.
H.R. REP. NO. 91-127, 91st Cong., 2d Sess., Reprinted in [1970] U.S. CODE CONG. & AD. NEWS, 2691,2692.
That Union was not the "owner” of the tank cars or the oil is not a reason for
Union Petroleum, note 20, supra, at 668-69.
Id. at 669.
P. Ex. 21, April 15, 1975.
33 U.S.C. § 1321(f). United States v. Beatty. Inc., 401 F.Supp. 1040 (W.D. Ky. 1975).
33 U.S.C. § 1321 (a)(6).
Id. § 1321(0(1)
Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. United States, 216 Ct. Cl. 155, 159, 575 F.2d 839, 841 (1978).
Chicago, Milwaukee, note 30, supra.
Union Petroleum. note 20, supra.
Tr. 208.
Tr. 78,409.
Tr. 208, 216.
Tr. 80-81,203.
Tr. 300.
Defendant relies on and cites federal guidelines for oil spill containment capacities. 40 C.F.R. § 112.7(e)(4)(ii) to argue that plaintiffs containment system was inadequate and therefore contributed to the spill. Judging by Union’s virtually spotless record, the federal and state agencies charged with administering these and other oil spill prevention regulations apparently found the facilities adequate. Defendant has not urged that plaintiff was negligent for failing to discover the hidden culverts earlier than it did.
Tr. 279.
Tr. 254.
