(hereafter clean-up) of the spill, and one Malcolm O. Castor, an employee of the EPA, was designated the on scene coordinator for the project.
7. One Sidney Mallet, President and principal owner of the defendant company, was first orally, then on November 7, 1972, by letter, advised by representatives of the Coast Guard and EPA of their conclusion that the spill emanated from the defendant's plant, and, in accordance with the provisions of the Federal Water Pollution Control Act, 33 U.S.C.A. 1151 et seq., advised him that it was his responsibility to clean up the spill and eliminate it and that if his company refused to perform the clean-up operation this would be done through agencies of the United States government, but that his company would be responsible for all costs thus incurred. Mr. Mallet denied that the spill came from defendant's plant and refused to assume any responsibility for it.
8. On November 5, 1972, the EPA entered into a contract with Clean Water, Inc., a company experienced in cleaning up oil spills, to perform the clean-up operation, and from shortly thereafter until January 6, 1973, Clean Water, Inc. performed the work under the contract.
9. An abandoned sewer, which was the conduit through which the oil ultimately found its way onto the river bank and into the Allegheny River, was excavated to in several locations "downstream" between defendant's plant and the river. It was then flushed and cleaned with fresh water which was pumped from the sewer into tank trucks and disposed of at a landfill. Approximately 75,000 gallons of this water-sludge substance was thus removed. The sewer was then sealed at the several excavations with concrete plugs.
10. The efforts of the Coast Guard, the EPA and their contractor, Clean Water, Inc., were successful and the spill was cleaned from the river and river bank and eliminated.
11. The total cost of the clean-up operation was $ 46,884.19; the bulk of which, $ 43,242.24, was paid to Clean Water, Inc., with $ 2,678.08 going to the EPA for expenses and costs of the on scene coordinator, and the balance for other expenses and supplies. All of these costs were paid on or before June 1, 1973, and all of the costs were fair and reasonable and necessitated by defendant's refusal to clean-up, contain and eliminate the oil spill aforesaid.
12. On September 12, 1973, the Coast Guard made demand on the defendant for the payment of this bill for clean-up costs in the amount of $ 46,884.19. To date this has not been paid.
13. Following the spill and prior to the institution of the instant suit the defendant was afforded an administrative hearing before the Coast Guard under the provisions of 33 U.S.C. § 1321(b)(6) as a result of which on August 31, 1973, the defendant was advised by the Coast Guard that defendant had been assessed an administrative civil penalty of $ 5,000.00. To date this has not been paid.
This case was tried to the court without a jury. The principal and, in effect, sole factual issue concerned the source of the oil discharge which was discovered on October 24, 1972, at mile 2.9 on the Allegheny River adjacent to 36th Street in Pittsburgh, Allegheny County, Pennsylvania. The defendant did not dispute the fact that the spill occurred, that it consisted basically of oil or that this was in harmful quantity. And while the defendant did not agree to the reasonableness of the costs incurred in the clean-up operation, neither did it offer any proof to refute or contest the reasonableness or necessity of those costs.
The Government established that the oil on the river bank and in the river emanated from the defendant's plant in several ways by proof which was quite persuasive. First, dye tests were conducted by depositing a powdered dye at various places in the drainage areas in defendant's plant, which dye ultimately appeared in an abandoned sewer. This sewer, which was referred to as the 1874 sewer, ran underneath 36th Street adjacent to defendant's plant and had its terminus under the bank of the Allegheny River where the oily sludge here involved oozed and bubbled onto the bank and into the river. The sewer was excavated at several places including its terminus at the river bank, and again dye was found in the sewer and at the point on the river bank where the oil sludge was seen.
An engineering firm was retained by the defendant to inspect the industrial waste discharges from its plant. The results of this inspection were consistent with the dye tests run by the Government. In a March 15, 1973, report to the defendant, the engineering firm stated in part:
"Industrial wastes enter the plant sewer at an oil separator overflow and a rinse water separator overflow. Dye tests performed (by this engineering firm) on November 20, 1972 indicated that both overflows discharge to one 12-inch lateral sewer in Spruce Way. The lateral sewer is connected to a 36-inch City of Pittsburgh sewer (built 1905) on Thirty-sixth Street . . . .
"Industrial wastes in the lateral sewer discharged to the 1905 sewer; however, The dye tests also indicated that a small portion of the industrial wastes entered another 36-inch city sewer (built 1874) on Thirty-sixth Street. The lateral sewer crossed over the 1874 sewer before connecting to the 1905 sewer." (emphasis and matter in brackets added).