of Lot 128 in 1985, the tax records being equivocal at best, and 2.) that the initial discharge from the site did not occur in 1977 or 1978 when Quaker State was still in occupation on the site. As a result, Quaker State is not an "owner or operator" under either proferred construction of that term, and cannot be liable under 33 U.S.C. § 1321(f).
We have also considered the statutory construction issue raised by Quaker State's Motion for Summary Judgment. As described above, Quaker State contends that "owner or operator" is defined as of the date of discovery of a spill, while the Government argues that the date of initial discharge, even if years in the past, is the pertinent time element.
Although there are no reported decisions on this issue, perhaps because discharge and discovery are usually contemporaneous, our review of the Act and its purpose compel the conclusion that Congress intended to hold strictly liable the "owner or operator" at the time a discharge is discovered.
First of all, the Act defines owner or operator in the present tense with the single exception of abandoned offshore facilities. 33 U.S.C. § 1321(a)(6). In that situation, because there may not be a present owner or operator, the Act holds strictly liable the last owner or operator prior to abandonment. An abandoned onshore facility does not present the same problem - there is always a readily identifiable property owner who may be held strictly liable.
The definition is stated in the present tense because Congress sought to encourage the immediate cleanup of spills. When a spill is discovered, response must be swift. If the Government must bear the cost of cleanup, there must be a ready pocket for reimbursement. It is the owner or operator at the time the spill is first discovered who has control of the site and the source of discharge. He is readily identifiable. He is most likely to be in position to halt the discharge, to effect an immediate cleanup, or to prevent a discharge in the first place. If the onus of cleanup falls on the Government, he is the clearest and most expeditious source for reimbursement.
On the other hand, if the Government must search in the past for the date of initial discharge and the identity of some past owner or operator, the purpose of the Act is thwarted. Determining the date of initial discharge may require extensive investigation and expert opinion. It will almost certainly be the subject of litigation. Identifying the past owner or operator may also require considerable effort and be fraught with uncertainty. In any event that owner or operator may no longer be in control of the site, or may not longer exist. Congress' desire for immediate cleanup or in the alternative for a ready source for reimbursement would certainly be frustrated by the definition advanced by the Government.
We conclude therefore that "owner or operator" is to be defined as of the date of discovery of a spill and not at some date in the past. We recognize that in the present case there was no "operator" in 1985 and the "owner" at the time of discovery of the spill was the U.S. Forest Service. Therefore, the Government itself would be the strictly liable party under § 1321(f). Though the fact setting in the present case yields a bad result for the Government on the strict liability provisions, we will not torture the Act to achieve a result not intended by Congress.
Petition to Amend Counterclaim
The Government's original counterclaim premised liability solely on 33 USC § 1321(f), the strict liability imposed on an "owner or operator". The Government subsequently sought leave to amend to assert an alternative ground for liability under 33 USC § 1321(g), entitled "Third Party Liability". Quaker State has opposed the Motion, arguing that § 1321(g) and the Act as a whole do not permit the Government to sue a "third party" without first suing the applicable "owner or operator". Section 1321(g) reads in pertinent part:
In any case where an owner or operator . . . of an onshore facility, . . . from which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section, proves that such discharge of oil solely by an act or omission of a third party, or was caused solely by such an act or omission in combination with an act of God, an act of war, or negligence on the part of the United States Government, such third party shall . . . be liable to the United States Government for the actual costs incurred . . . for removal of such oil or substance . . .