The opinion of the court was delivered by: WEBER
In this litigation the government seeks to recover from Quaker State the costs of excavation and removal of oil contaminated ground at a site in the Allegheny National Forest. The subject site was an abandoned containment pit once used in oil drilling operations, and was allegedly discharging oil into a creek in the National Forest.
Quaker State successfully rebuffed the government's first attempt to impose liability under the Clean Water Act, 33 U.S.C. § 1321 et seq. based on the court's conclusion that Quaker State was not an "owner or operator" within the meaning of § 1321(f) of the Act. Quaker State v. United States Coast Guard, 681 F. Supp. 280 (W.D. Pa. 1988). The government subsequently amended its claim with leave of court and sought to impose liability under § 1321(g), alleging that Quaker State is a culpable third party under the Act. Quaker State has filed a motion for summary judgment seeking to head off this latest assault. The parties have submitted briefs and evidentiary material and this matter is ripe for disposition.
The Clean Water Act is designed to provide the government with a quick and ready source for reimbursement of cleanup costs. Thus the owner or operator of the site is strictly liable for the cost of cleanup, except where he can prove:
that a 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 . . . or any combination of the foregoing clauses.
33 U.S.C. § 1321(f)(2). In this case, we have concluded that the "owner/operator" within the meaning of the Act was the National Forest Service which owned the surface rights, and not Quaker State which had left the site years before. 681 F. Supp. 280. Of course, as a practical matter, this left the government without reimbursement.
But the Act also provides a means for recovery of cleanup costs from culpable third parties:
In any case where an owner or operator . . . proves that such discharge . . . was caused 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, notwithstanding any other provision of law, be liable to the United States Government for the actual costs incurred . . . except where such third party can prove that such a 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 another party . . . or any combination of the foregoing clauses . . . the United States may bring an action against the third party in any court of competent jurisdiction to recover such removal costs.
In support of its motion, Quaker State alleges that the National Forest Service is at least partly to blame for any discharge of oil from this site. It is alleged that officials of the Forest Service directed that the pit be filled but did not inspect the pit for the presence of oil, did not give directions on how to backfill it properly, and subsequently did nothing to prevent a spill. Because the Forest Service is culpable at least in part, Quaker State argues that the government cannot prove that the discharge was caused "solely" by Quaker State, and therefore cannot recover under § 1321(g).
Quaker State cites a great many cases for the premise that an owner/operator cannot shift responsibility to a third party unless the owner/operator establishes that he is blameless, and that the third party is culpable alone. We have no quarrel with the holdings in these cases, but they are distinguishable on one simple fact. In the present case, the owner/operator is the United States Government.
If we return to § 1321(f)(2) we will see that an owner/operator can avoid liability if he proves that the "discharge was caused solely by . . . (C) negligence on the part of the United States Government or (D) an act or omission of a third party . . . or any combination " of such factors. In this case the government has alleged that Quaker State caused the ...