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UNITED STATES v. MALITOVSKY COOPERAGE CO.

June 28, 1979

UNITED STATES of America, Plaintiff,
v.
MALITOVSKY COOPERAGE COMPANY, Defendant, v. CITY OF PITTSBURGH and Allegheny County Sanitary Authority, Third-Party Defendants



The opinion of the court was delivered by: DIAMOND

The United States of America brought this action against Malitovsky Cooperage Company (Malitovsky) to recover a statutory penalty and damages on the grounds that oil which emanated from the defendant's steel drum reconditioning plant had been discharged into the Allegheny River in violation of 33 U.S.C.A. § 1321(b)(3). *fn1" The plaintiff sought damages in the amount of $ 51,884.19 plus interest, representing an administratively assessed penalty of $ 5,000.00 *fn2" and the actual costs of $ 46,884.19 incurred by plaintiff in removing the oil from the river. *fn3" Jurisdiction is based on 33 U.S.C.A. § 1321(n).

Malitovsky subsequently filed third-party complaints against the City of Pittsburgh (City) and the Allegheny County Sanitary Authority (ALCOSAN), joint operators of the sanitary sewer and disposal system which serviced the defendant's plant, and the plaintiff then asserted direct claims against these parties under Rule 14(a) Fed.R.Civ.P.

 The late Judge Herbert P. Sorg granted summary judgment in favor of the City and against defendant (ALCOSAN did not seek summary judgment), and this court at trial granted motions for involuntary dismissal in favor of the City and ALCOSAN against the plaintiff and against the defendant as to its remaining third-party claim against ALCOSAN. *fn4"

 FINDINGS OF FACT

 1. Plaintiff is the United States of America.

 2. Malitovsky Cooperage Company is a corporation doing business in the Western District of Pennsylvania with its principal place of business located at 3600 Smallman Street, Pittsburgh, Pennsylvania.

 3. On or about October 24, 1972, oil was discharged at mile 2.9 into the Allegheny River and upon the adjoining shoreline adjacent to 36th Street in the City of Pittsburgh, Allegheny County, Pennsylvania. This oil discharge was in harmful quantities.

 4. The Allegheny River is a navigable waterway of the United States.

 5. Investigation conducted by members of the United States Coast Guard (Coast Guard) assigned to the Pittsburgh, Pennsylvania, district and by members of the United States Environmental Protection Agency (EPA) led them to conclude that this spill of oil was in harmful quantity and emanated from the defendant's steel drum reconditioning business located at 36th and Smallman Streets in the City of Pittsburgh.

 6. Immediate steps were taken first under the direction of the Coast Guard and subsequently under the direction of the EPA for the containment, dispersal and removal (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 ...


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