*1 1305 оf America v. Mine Workers under United 1130, 16 715,
Gibbs, 86 S.Ct. 383 U.S. (1966).
L.Ed.2d arguments their parties have devoted exercise of propriety of that
here no doubt We have
discretion. under not abuse its discretion
court did guidelines.
Gibbs the so-called
We do note that parties other against state claims ran
dent defendant the United States 7426. Where that is in U.S.C.
specified
true, jurisdiction can pendent ancillary inquiry into found without further
not be conferring juris Congress in
the intent of Aldinger claim. See
diction of federal Howard, 96 S.Ct. v. U.S. Wood, Jr., Judge, Harlington Circuit Equipment (1976); L.Ed.2d Owen a concurring opinion. filеd 437 U.S. Kroger, v. Co. Erection par L.Ed.2d Bauer, Judge, concurring filed a argued impact Aldinger ties have not opinion. jurisdiction of question Owen this case. In the law claims in the state case,
posture we need consider impact. judgment AFFIRMED. America,
UNITED STATES
Plaintiff-Appellee, COMPANY,
MARATHON PIPE LINE
Defendant-Appellant.
No. 78-1453. Appeals, States Court
Seventh Circuit.
Argued Oct.
Decided Dec. *2 Ewart, P. Craig Mattoon,
John Craig, Ill., defendant-appellant.
Robert Simpkins, Atty., L. Asst. U. S. Louis, Ill., East plaintiff-appellee. St. CASTLE, Before Judgе, Senior Circuit WOOD, and BAUER and Judges. CASTLE, Judge. Senior Circuit Pipe Company Marathon Line ap peals from the district court’s enforcement $2,000 way of of a summary judgment civil assessed United States against Marathon under sec tion 1321(b)(6) of the Water Pollu Federal (FWPCA)1 tion Control Act for a discharge of oil navigable into watеrs violation of 1321(b)(3) of the Act. The issue presented 1321(b)(6) per is whether section mits the Coast Guard to more assess than a nominal penalty against the owner of a discharging facility where the owner without fault spill and the caused party.2 Affirming court, the district we hold 1321(b)(6) that section is an abso lute provision cоntemplates which substantial even in the absence of and, accordingly, fault that the Coast Guard did assessing abuse its discretion 19,992 discharge for a gallons of crude oil.
On
November
no-
Marathon was
tified by
pipeline
local
that a
owned
police
by ruptured
had
discharging
and was
crude oil
River
into thе Kaskaskia
in south-
ern
immediately
Illinois.
company
steps
took
spill
reported
to contain the
the occurrence to the United
Envi-
States
all, 19,-
ronmental Protection Agency.
gallons
of crude oil were discharged
10,920
from the pipeline
gallons
were
burned,
recovered
so that approximately
9,072 gallons escaped downriver. Subse-
quent
investigation by
company
re-
vealed that a bulldozer had struck the four-
1321(b)(6) (1976).
1. 33 U.S.C.
propriety
§
All references
2. Marathon does not contest
of a
opinion
FWPCA in this
are to the 1972
nominal civil
in this situation.
In Unit-
and 1973 amended
Tex-Tow, Inc.,
version. The 1977 amend-
ed States
learning of either the or the dam- digging Discretion Claims age any prior spill. at time to the one provision clearly civil penalty of liability strict fault is not even a since Statutory Scheme requisite clean-up liquidated or damages liability,
The FWPCA was
“to restore and
every
enacted
and
court which has con
chemical,
See, g.,
maintain the
sidered
has so held.
physical
biologi-
question
e.
integrity
Tug
Prince,
cal
of the Nation’s waters.” 33
Ocean
Inc. v. United
'
1251(a).
(S.D.N.Y.1977);
that end
U.S.C.
Toward
Con- 436 F.Supp.
§
Unit
Co.,
gress
eliminating
set the
ed
goal of
dis-
States
Richfield
v. Atlantic
charge
navigable
(E.D.Pa.1977);
of all
into
pollutants
F.Supp.
v.
836-37
Ward
by
1251(a)(1).
Coleman,
(W.D.Okl.
waters
Section
F.Supp.
§
dealing
1976);
with oil and
substance
hazardous
United
General Motors
States
liability,
discharge” policy
(D.Conn.1975);
sets
Corp.,
a “no
403 F.Supp.
Co.,
any
prohibits
Pipeline
immediate effect аnd
dis- United
Eureka
States v.
charge
1321(b)(1) F.Supp.
(N.D.W.Va.1975).
in harmful
How
quantities.
§§
ever,
that,
although
opera-
The section holds
Marathon claims
regard to
penalty
without
discharging
liability
tors
facilities3 liable for
attaches
costs,
as
clean-up
subject
only may
the defenses of
a
amount
be
to
act
nominal
God,
war,
act of
sessed in
fault on its
negligence
the absence
Government,
Motors,
part.
regard
or omission of
States
or act
a
We do not
General
party.
1321(f).
discharged supra,
third
If the
which also involved zero fault and
§
nonremovable,
causation,
party
authority
substance is
owner or
as
for suсh
operator
penalty
proposition,
is liable to a
a
variable
as the court
that case
“discharging
offense.
shall
3. The term
facilities”
shall be
No
be assessed unless
“vessel,
used where the
to
on-
operator
charged
statute refers
the owner or
shall have
facility,
facility.”
shorе
given
offshore
opportunity
been
notice
for a hear-
sepa-
on
charge.
such
Each
is a
violation
up
charged
drawing
4. The EPA
a
with
sched-
Any
penalty may
rate offense.
compromised by
such civil
assigning appropriate
penalties
per
ule
unit
to
Secretary.
such
In deter-
1321(b)
variоus nonremovable
substances.
mining
penalty,
the amount of the
or the
(2)(B)(iv).
agreed upon
compromise,
ap-
amount
1321(b)(6)
propriateness
of such
Section
states:
size
operator
Any
vessel,
the owner or
operator
business
owner or
on-
charged,
operator’s
facility,
facility
the effect
owner of
shore
or offshore
from which
business,
discharged
ability
gravi-
or a hazardous
to continue in
and the
oil
substance
1321(b)(3)]
violation,
ty
violation of
shall be as-
[section
shall be considered
penalty by
Secretary
sessed a civil
Secretary.
.
department
op-
in which the Coast Guard is
erаting of not more
for each
pursuant
consider,
assessed the one dollar
to
the Coast Guard to
in setting a
the exercise
discretion in a
ability
own sound
penalty,
the owner’s
and the
contrast,
Here,
we are
de novo trial.
“gravity
violation.”
of discretion
asked to
the exercise
review
interpreted
the latter to include
agency.
record,
an administrative
prior
spill,
size of the
the owner’s
“degree
culpability.”7
and the
Thus de-
effect,
Marathon would have us
gree of fault
is but one of several factors
read into the statute a
standard of
strict
setting
Coast Guard will consider in
a
liability
negli
for а nominal
and a
penalty.8
allegation
There is no
here that
gence
standard of
substantial
the Coast Guard did not consider absence of
penalty.
plain
We do not believe the
lan
factor,
mitigating
fault
as
the evi-
guage
supports
of the statute
different
did,
dence indicates that it
as it is the Coаst
opposed
standards for a substantial as
to a
policy
Guard’s stated
assess
*4
nominal penalty. We must construe a stat
$5,000,9
or
and Mara-
near the maximum of
according
ute
ordinary meaning
to its
un
thon has offered no evidence to show that a
Congress
less
not
clearly did
intend it to
spill
magnitude
oil
would
сrude
of this
have such meaning, as determined from
penal-
maximum
ordinarily result in the
parts
other
legislative
of the statute or
his
ty.
the
Accordingly, we find that
statute
tory,
Congress
or unless
could not have
penalty
allows a substantial
in the circum-
meaning
it
a
because
intended
to have such
stances of this case and that
Coast
would render the
unconstitution
statute
States,
al.
in assess-
Caminetti v.
Guard did not abuse its discretion
242 U.S.
470, 485,
192,
(1917);
267, 1306, (1974). 506 F.2d 1313-16 For reasons explained in the section of this purpose Marathon that asserts opinion dealing with the constitutional is spills of the civil and рenalty is to deter sue, Congress, we believe the intent of as assessing that a penalty substantial civil in manifested in section 1321 taken as a the absence of fault does not meet the due whole,6 to impose a substantial civil process requirement legislative that means alty on owners or operators even in the bear “a proper leg reasonable relation to a absence of fault and that such an intent is purpose, islative arbitrary and neither [be] well within powers the constitutional discriminatory.” York, nor Nebbia v. New Congress. 502, 537, 536, 291 U.S. 78 L.Ed. (1934). First,
Marathon
directly
does not
address the
we note that
thе Su
intent,
issue
congressional
arguing
preme
in-
an econom
Court has not invalidated
stead that
misapplied
ic regulation
due
on substantive
own
guidelines
fixing
grounds
administrative
in
and
since 193711
that even in the
amount of the penalty. The statute directs Nebbia case
Marathon the
relied on
legislative history
spеak
6.
Policy,” supra
does not
9. “Coast Guard
note 7.
issue of a substantial
in the absence of
only guide.
so the statute itself is our
10. Marathon attacked the
culpability,
on the basis of its lack
of
the
but
Policy
Application
Tex-Tow,
“Coast Guard
for the
supra
company argued
note
311(b)(6),
Civil Penalties under Section
spill
that it did-not “cause” the
since a third
FWPCA,” reprinted
appendix
an
as
to United
party “caused” it.
Co., Inc.,
Towing
States v. LeBeouf Bros.
F.Supp.
(E.D.La.1974).
Gunther,
11. G.
Constitutional Law Cases and
1975).
regu-
Materials 591
ed.
“Economic
interpretation
8. We note that
of a statute
regulation
lation” is used in contrast to
of non-
agency primarily
concerned with its inter-
personal
economic
interests.
Id. at
pretation
judicial
proper
interpre-
is relevant to
clearly
The civil
would
be an economic
Proper-
tation of the statute. L’Enfant Plaza
regulation
personal
as no
or
in-
non-economic
ties,
Redevelopment
Agency,
Inc. v. D. C.
Land
terest of Marathon is involved.
U.S.App.D.C.
WOOD, Judge, concurring.
As I Castle has Judge correctly believe law
analyzed join I applicable his
opinion, principle do but as a matter so
with some reluctance. America, UNITED STATES will have to this Plaintiff-Appellee,
fine so can no doubt do without eco- however, pain. recognize, justi- nomic I no fication for it the basic unfairness involves. TEX-TOW, INC., Defendant-Appellant. The company concededly guilty No. 78-1656. slightest in no way fault. It caused the accident, was in except business. Just Appeals, Court of United States being in of supplying critical business Seventh Circuit. energy or our society оther needs for scarcely justifies type Argued this of penalty being Oct.
imposed by government agen- in a someone Decided Dec. cy. I fail to see how it will deter or remedy *6 anything. The did not conceal the
accident, engaged but actively efforts to
contain the fine spill. This and others as
unjustified passed along will to the
consuming public. good Little can be ac-
complished in particular these circumstanc-
es by this general- which is unusual
ly contrary accepted considered to be
principles of equity. law and
BAUER, Judge, concurring.
I too Judge believe that Castle cor-
rectly decided matter before us as a opinion.
matter in his of law concur and I responsibilities
While I agree also legal this court than such a go no further
analysis facts —I am contested —without joining Judge concurring also Wood’s
remarks. to me that It seems
Guard, given such fantastic having been Congressional
amount of ac- leeway by involved,
tion closer attention to should purposes legislation for which
passed protection. pun- To —environmental