Opposition Brief — Hyundai Merchant Marine Co. v. United States

No. 99-142

LBA RRS 2S DU DESY ADE EESSEI SEE BE NEESER SEABED EBERLE REO NASA ABE BIS V AGL PEAS EOE LLLP ES i

In the Supreme Court of the Chuited States

HYUNDAI MERCHANT MARINE COMPANY, LTD.,

PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAT

FOR THE NINTH CIRCUTI

BRIEF FOR THE UNITED STATES IN OPPOSITION

DAVID W (i 1)

Acting Assistant Attorney

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ROBERT GREENSPAN

ALFRED MOLLIN

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1h partment ¢ Jin f

Washington, D.C. 20580-0001

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QUESTIONS PRESENTED

1. Whether the Oil Pollution Act of 1990, 33 U.S.C.

2701 et seq., authorizes the United States to recover

monitoring and other costs incurred by the Coast Guard

to prevent catastrophic damage to the environment

threatened as a result of the grounding of petitioners’

vessel.

2. Whether petitioners’ due process rights were

violated because they did not receive a hearing about

whether the Coast Guard’s costs were “prudent, or

necessary, or reasonable.”

3. Whether the court of appeals correctly deter-

mined that the Oil Pollution Act authorizes an award of

attorney’s fees in this action.

TABLE OF CONTENTS

Opinions DE]OW ........s.scssseesereesenerseerenseseneensnensensensnssesssenennenenneneenese

PINOT ccccccsctncsccsnceserenmmnesnscensneesscrttesegeeTetetTHetereNTeTTeTOTOCTTOIOOOTS

TREES, ccoscsccureeseteseenceseuntaretastnntennteetteUtAsOINTOSCOTTTSSTITETTRSOCOEESS

ALQuMEeNt ...0cccecsocecsrseserereesereressersrsesersrsersorereressersessssssesessssseosereveesees

6 Ee

TABLE OF AUTHORITIES

Cases:

Atlantic Richfield Co. v. American Airlines, Inc.,

98 F.3d 564 (10th Cir. 1996) ......cccsereecerersssesesesneecseseseesnseees

California v. Celtor Chem. Corp., 901 F. Supp. 1481

(fae 8)

California Dep't of Toxic Substances Control v.

SnyderGeneral Corp., 876 F. Supp. 222 (E.D.

| ee

Commonwealth of Puerto Rico v. SS ZOE COLO-

COTRONI, 456 F. Supp. 1327 (D.P.R. 1978),

aff’d in part, vacated in part on other grounds,

628 F.2d 652 (1st Cir. 1980), cert. denied, 450

UF BE, GAB (IGGL) ccccccevecveccevecscseveserecesssveseseseosevsscssevevsevseassoseoseeses

Concrete Pipe & Products of California, Inc. v.

Construction Laborers Pension Trust for Southern

California, 508 U.S. 602 (1993) oc cceseeeeenseeseeesnesees

Freeport Sulphur Co. v. S.S. HERMOSA,

526 F.3d 300 (Sth Cir. 1976) ........ccccccccsorverseesceeresceeersereesseses

National Cable Television Ass'n v. United States,

415 US. BBB CIGTE) ccccccreververererscreescecsesesescesesenssovsvscssesevecsores

New York v. Shore Realty Corp., 759 F.2d 1032

(2d Clr. 1985) cececccerseesceseersoreveeseesvsescoveseresscsevesenesousosrevesssroseese

Pneumo Abex Corp. v. Bessemer and Lake Erie

R.R., 936 F. Supp. 1250 (E.D. Va. 1996) ....cceccceeeesereeeneeees

Town of New Windsor v. Tesa Tuck, Inc., 935

F. Supp. 317 (S.D.N.Y. 1996) .....ccersssserserssssssssssessssesssesenes

(IIT)

~

~

~]

~

|

IV

Cases—Continued: Page

Union Petroleum Corp. v. United States, 651 F.2d

}

Gare ae Se BD sicecnsstntmensintacnsisninnetbaeiitinnnmtinisemnmieneniatiieais 13

United States v. American Cyanamid Co., ’

CM BR eee 13

United States v. Hardage, 750 F. Supp. 1460

(W.D. Okla. 1990), cert. denied, 510 U.S. 913

RN era ENT AOC CME PTE CT ey 5 A 13

United States v. Hollywood Marine, 519 F. Supp.

Re | RR ae re ree eee eee ee 13

United States v. Lowe, 118 F.3d 399 (5th Cir.

SUPE ciecicinieieaneinedaepa iinet ca a 7

United States v. MORANIA BARGE 200, 1983

Amer. Maritime Cases 2761 (E.D.N.C. 1982) .o..cccceeeeeeee 13

United States v. Rohm and Haas Co., 2 F.3d 1265

eC BERD. ceciantnntansdintinnnneanitesasbiviiialpenieiinintaiititaiitaiai 7,8,9

United States v. R.W. Meyer, Inc., 889 F.2d 1497

(6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990) ........... 13

United States v. Slade, Inc., 447 F. Supp. 638 (E.D.

pA PRD REET RUN nent a CME He mew LRT OOLE TS eR eNO 13

Youakim v. Miller, 425 U.S. 231 (1976) ..........cccscceccesseees 10

Statutes:

Act of Oct. 19, 1996, Pub. L. No. 104-324, Tit. XI,

§ 1142(d), 110 Stat. 3991 (33 U.S.C. 2715(¢)

GENUS ie NU sateenertesicenerestenpssietcetemnctianiistneeettiibianiatiaatediinniaien 13-14

Comprehensive Environmental Response, Compensa-

tion and Liability Act of 1980, 42 U.S.C. 9607

CTD cincieionsiibaieiateateiiiitgescteciansieanateiiailidcitat aaa a ian seal 7

Federal Water Pollution Control Act, 33 U.S.C.

1251 et seq.:

§ 311, 33 U.S.C, 1321 (1994 & Supp. IIT 1997) ......00.... 12

§ 311(c), 33 U.S.C. 1321(c) (1994 & Supp. III]

| RESELL Tecan ee ee Pa ek eee ve 2

§ 31](c)(1)(B)(i), 33 U.S.C. 1321(e)(1)(B)(i) 2... eeeeeeee 2

§ 311(¢)(1)(B)(ii), 33 U.S.C. 1321(¢)(1)(B)(ii) «0... 2, 12

Statutes—Continued: Page

Multiemployer Pension Plan Amendments Act of

1980, Pub. L. No. 96-364, 94 Stat. 1208 ........... viniiaiosiaaii 11

Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq. 2... l

§ 1001(31), 33 U.S.C. 270181) ........crecccccrsscesseeserrereeseerereeees 2

§ 1002(a), 33 U.S.C. 2702(a) .......ccrccccsrscesrereeeresnseees 2, 7, 11, 12

§ 1002(b), 33 U.S.C. 2702) ...ceccecccrecrccocrerescrerecrersserereroeees 12

§ 1002(b)(1)(A), 33 U.S.C. 2702(D)(L)(A) ...ccccccsecseceereenennees 2,12

§ 1015, BB UG.C. STIG .ncecccorcecrcsseevevecsevscsevsccsevecssovevessessesessees 5

BD USC. ROBE) ceccccnessecerneesserseererseseenrenmeinnevennevemmncomonnrensnse 11

Miscellaneous:

David A. Bagwell, Hazardous and Noxious

Substances, 62 Tul. L. Rev. 433 (1988) ........cccccsseerereeeeeees 13

S. Rep. No. 94, 101st Cong., 2d Sess. (1990) .....csssseseseseeesees 13

i

In the Supreme Court of the Anited States

No. 99-142

HYUNDAI MERCHANT MARINE COMPANY, LTD., ET AL.,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-14) is

reported at 172 F.3d 1187. The findings of fact and

conclusions of law of the district court (Pet. App. 39-71)

are reported at 1997 Amer. Maritime Cases 2333.

JURISDICTION

The judgment of the court of appeals was entered on

April 20, 1999. The petition for a writ of certiorari was

filed on July 19, 1999. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Oil Pollution Act of 1990

(OPA or Act), 33 U.S.C. 2701 et seq., to place the costs

(1)

2

of oil pollution upon those “responsible * * * fora

vessel * * * from which oil is discharged, or which

poses the substantial threat of a discharge of oil” into

United States waters. 33 U.S.C. 2702(a). Section

1002(b)(1)(A) of the Act, 33 U.S.C. 2702(b)(1)(A), makes

those responsible for threatened or actual pollution

liable for the “removal costs and damages” incurred by

the United States in carrying out certain of its obliga-

tions under Section 311(c) of the Federal Water Pollu-

tion Control Act (FWPCA), 33 U.S.C. 1321(c) (1994 &

Supp. III 1997). The Act defines removal costs to in-

clude “the costs of removal that are incurred after a

discharge of oil has occurred or, in any case in which

there is a substantial threat of a discharge of oil, the

costs to prevent, minimize, or mitigate oil pollution

from such an incident.” 33 U.S.C. 2701(31). The activi-

ties under the FWPCA for which such removal costs

must be paid include, among other things, “mitigat[ing]

or prevent{ing] a substantial threat of a discharge

* * * land] direct{ing] or monitor[ing] all Federal,

State, and private actions to remove a discharge.” 3:

U.S.C. 1321(¢)(1)(B)(i) and (ii).

2. On September 24, 1991, petitioners’ vessel, the

Hyundai, left Portland, Oregon, with a cargo of 24,000

tons of grain. The Hyundai’s fuel tanks were located in

the very bottom of the vessel beneath the cargo holds

and carried 200,000 gallons of a type of heavy fuel oil

particularly dangerous to the environment. Pet. App.

41-42.

On October 2, 1991, petitioners’ vessel ran aground in

the Shumagin Islands of Alaska, a part of the Alaska

Maritime National Wildlife Refuge and an area “of

great environmental sensitivity.” Pet. App. 42. Soon

after the ship ran aground, at least three forward

ballast tanks and one fuel tank ruptured, and “there

3

was a very great risk of serious environmental dam-

age.” Id. at 44. The Hyundai's owners and insurers

“assumed responsibility for the salvage and any neces-

sary cleanup.” Jd. at 48. Nevertheless, for the first

eight days of the pollution threat, the Hyundai’s

owners and insurers had “no vessel on scene capable of

dealing with a catastrophic situation.” /bid. At no time

did the Hyundai’s owners have equipment in place suf-

- ficient to “manage[] both a break-up of [the Hyundaz]

and a spill of fuel in a storm.” /d. at 50. The salvage

operation planned by the Hyundai’s owners involved

the use of grain evacuators to lighten the ship so that it

could be refloated, but such devices sufficient to the

task did not arrive on the scene until October 11, 1991,

fully ten days after the vessel ran aground. /d. at 51-

52. On October 12, 1991, the pollution threat finally

abated when the Hyundai was refloated and towed to a

temporary anchorage for repairs. /d. at 53.

The Coast Guard responded immediately to the

Hyundai's grounding, with the first vessel and helicop-

ter arriving within hours. Pet. App. 43. The Coast

Guard deployed additional ships and aircraft and, by

October 5, 1991, had put in place specialized oil spill

recovery equipment sufficient to deal with a serious oil

spill. Jd. at 47. The threat of a serious spill was

substantial. The Hyundai was perched upon rocks and,

on the fifth and sixth days after the grounding, a gale

force Gulf of Alaska storm twisted and swung the ship

105 degrees around the rocks, causing additional dam-

age to the Hyundai's hull and an oil leakage visible ina

sheen over 2000 feet long. Jd. at 3,51. There was “at

all times a moderate risk that the [Hyundai] would

break up.” Jd. at 47. Accordingly, to defend aga.nst

this serious threat, the Coast Guard kept its equipment

in place until efforts to refloat the H yundai on October

12 were successful. Given the threat of an oil spill that

could not have been contained by the Hyundai’s

owners, the district court concluded that “it would have

been irresponsible for the Coast Guard not to have

undertaken the actions which it took, even though the

owners and insurers assumed responsibility for the

incident.” Jd. at 48-49.' The cost to the Coast Guard

for maintaining its oil spill equipment at the scene until

the threat of a major spill abated was $1.1 million. Jd.

at 70.

The United States brought this action to recover its

costs pursuant to the OPA. The district court made

findings of all relevant facts and conclusions of law.

Pet. App. 39-71. The court noted that “the parties

agree with the general proposition that the arbitrary

and capricious standard be used to evaluate the [Coast

Guard’s] decisions.” Jd. at 35. The court thus concluded

that the OPA authorized the recovery of removal costs

from a responsible party if the costs were rationally

incurred. /bid. The court then reviewed de novo the

actions taken by the Coast Guard and held that the

claimed costs were “neither arbitrary nor capricious,

and, under the extreme and sensitive circumstances of

this * * * [incident], were also reasonable and neces-

sary costs.” Jd. at 62. It calculated the government’s

removal costs as $1,109,963, and awarded the govern-

ment that sum plus interest. Jd. at 70. In addition, the

court awarded the government approximately $104,000

in attorney’s fees. /d. at 72.

! A Coast Guard cutter accompanied the Hyundai to its tempo-

rary anchorage, where it was learned that there were a “total of

133 cracks in the hull of the vessel, one of which was 6 feet wide

and 42 feet long.” Pet. App. 53.

5

3. The court of appeals affirmed. Petitioners argued

that the OPA authorized only the recovery of costs

actually incurred in removing oil from the water. The

. court of appeals noted that “Hyundai’s emphasis on

I actual removal unduly minimizes the importance of the

Coast Guard’s emergency stand-by operation, which

” qualifies as an act of ‘prevention,’ the cost of which is

clearly recoverable under the terms of the definition [of

‘removal costs’] as it applies to the liability imposed by

§ 2702 [of the OPA].” Pet. App. 7. Petitioners also

challenged the assessment of what it termed “monitor-

ing costs,” relying on National Cable Television Ass’n

v. United States, 415 U.S. 336 (1974) (NCTA). How-

ever, the court of appeals noted that this Court’s deci-

sion in NCTA was not apposite, because NCTA

“reminded Congress that it may not delegate away its

taxing power to an executive agency * * * [but] [t]he

OPA authorizes recovery of costs, not taxation.” Pet.

App. 7-8 (internal citations omitted). Finally, the court

of appeals rejected petitioners’ claim that attorney’s

fees are not warranted under the OPA. The court of

appeals noted that 33 U.S.C. 2715 authorizes the pay-

ment of attorney’s fees to the United States in actions

brought to recover the payment of removal costs in

these circumstances.

ARGUMENT

The decision below is correct and does not conflict

with any decision of this Court or any other court of

appeals. Accordingly, further review is not warranted.

1. Petitioners assert that a conflict exists among the

circuits on the application of this Court’s decision in

National Cable Television Ass’n v. United States, 415

U.S. 336 (1974). They contend that NCTA states a rule

of general applicability concerning when a regulatory

6

statute should be construed to permit an agency to

recover certain operating costs from a party, and that

the Third and Ninth Circuits have applied NCTA in

conflicting ways to “costs incurred by the Government

in monitoring environmental response operations.” Pet.

7. Those contentions are without merit. To manufac-

ture a conflict, petitioners misinterpret NCTA and

overlook important distinctions between the costs at

issue in the Third and Ninth Circuit decisions.

NCTA concerned “fees” that the Federal Communi-

cations Commission (FCC) imposed upon all cable tele-

vision licensees. This Court held that the term “fee”

implies a notion of a benefit conferred, and it concluded

that a “fee” calculated to reimburse the FCC for all of

its operating expenses for the regulation of cable

television, rather than to pay for value received by the

regulated party, was in the nature of a tax, not a “fee.”

To avoid the necessity to decide the constitutional

question of the adequacy of such a delegation of the

taxing power, the Court read the statute narrowly, as

not having delegated Congress’s taxing authority to the

agency, and remanded to the FCC for reconsideration

of the fee. See 415 U.S. at 348.

The court of appeals correctly rejected petitioners’

contention that NCTA controls this case, holding that

NCTA does not apply because the OPA “authorizes

recovery of costs, not taxation.” Pet. App. 8. The

district court carefully determined the actual costs

incurred by the Coast Guard and correctly concluded

that the plain language of OPA requires “each responsi-

ble party for a vessel or a facility from which oil is

discharged, or which poses the substantial threat of a

discharge of oil” to be “liable for the removal costs and

damages specified in subsection (b) that result from

such incident.” Pet. App. 63 (quoting 33 U.S.C.

2702(a)).

Petitioners contend that a Third Circuit decision

applying the NCTA doctrine to the government’s “costs

incurred in overseeing a private removal [of pollution]

under * * * CERCLA [the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

1980, 42 U.S.C. 9607 (1988)]” conflicts with the decision

below. See Pet. 6 (citing United States v. Rohm and

Haas Co., 2 F.3d 1265 (3d Cir. 1993)). That contention

is incorrect. First, Rohm and Haas arose under a dif-

ferent statute from OPA, with different statutory

mechanisms and requirements for the recovery of

governmental costs.” Second, it is doubtful whether,

even under Rohm and Haas, the Third Circuit would

have decided this case differently. Rohm and Haas

concerned “costs incurred by the government in moni-

toring private parties’ compliance with their legal

obligations.” 2 F.3d at 1273. The Rohm and Haas

defendants had spent 15 years cleaning up a hazardous

waste site pursuant to an order by the Environmental

2 Even within the context of CERCLA, the Third Circuit’s

Rohm and Haas decision has been widely rejected by courts that

subsequently have considered the issue. See, e.g., United States v.

Lowe, 118 F.3d 399, 401 n.2 (5th Cir. 1997) (Rohm’s reliance on

NCTA “represented a significant departure from prior case law”);

Atlantic Richfield Co. v. American Airlines, Inc., 98 F.3d 564, 567

(10th Cir. 1996); Pnewmo Abex Corp. v. Bessemer & Lake Erie

R.R., 936 F. Supp. 1250, 1261-1262 (E.D. Va. 1996); Town of New

Windsor v. Tesa Tuck, Inc., 935 F. Supp. 317, 324-327 (S.D.N.Y.

1996); California v. Celtor Chem. Corp., 901 F. Supp. 1481, 1489-

1490 (N.D. Cal. 1995); California Dep’t of Toxic Substances Con-

trol v. SnyderGeneral Corp., 876 F. Supp. 222, 225 (E.D. Cal. 1994).

See also New York v. Shore Realty, 759 F.2d 1032, 1043 (2d Cir.

1985) (holding that remand costs of the type rejected by Rohm and

Haas court could be recovered under CERCLA).

8

Protection Agency (EPA) made under its CERCLA

authority. Jd. at 1268. The EPA oversaw the post-spill

clean-up efforts and subsequently sought reimburse-

ment for its oversight costs, relying upon a CERCLA

provision that allowed recovery of “removal costs” it

incurred. Unlike the monitoring and cleanup costs at

issue here, which were directed at prevention and

mitigation of a potential disaster in the making, the

actual release of pollutants in Rohm and Haas had long

since passed when the contested post-spill monitoring

and oversight costs were incurred.

In construing the CERCLA provisions relating to

the EPA’s post-spill administrative oversight costs, the

Third Circuit invoked NCTA, concluding that an

agency’s imposition of costs for the oversight of a

polluter’s post-spill clean-up was in the nature of a tax.

Relying upon NCTA for the proposition that statutes

imposing tax-like obligations must be construed nar-

rowly, the court interpreted the specific CERCLA

provisions not to include the types of administrative

and oversight costs at issue there. The court, however,

was careful to distinguish from its holding the kinds

of removal costs at issue in this case, noting that

CERCLA authorizes recovery of removal costs for

“actual monitoring of a release or threat of release.”

9 F.3d at 1275. As the court further explained:

To assist the district court in carrying out this

task, we conclude our discussion regarding over-

sight costs by further elucidating what we perceive

to be the statutory distinction between recoverable

and non-recoverable costs. Where the government

takes direct action to investigate, evaluate, or moni-

tor a release, threat of release, or a danger posed by

such a problem, the activity is a “removal” and its

costs are recoverable. See 42 U.S.C. § 9604(b)

(1988). This includes the costs, no matter at what

stage incurred, of ascertaining whether and to what

extent the risk has been reduced or eliminated by

the chosen response. Similarly, if the activity is

intended to enable EPA to formulate a position on

what would be the most appropriate response action

at a given facility, the cost is recoverable.

Id. at 1278.

Because this case concerns costs incurred in the

Coast Guard’s monitoring Gfsiige ongoing substantial

threat of a major spill from a vessel still in danger of

breaking up, there is no reason to suppose that the

Rohm and Haas court would have decided this case

differently than did the court below. As the district

court noted, for the first eight days of the incident the

petitioners had no credible pollution response vessels

on scene. On day nine petitioners’ salvage tug finally

arrived; on day eleven the grain cargo evacuators

began their work of lightening the vessel’s load; and

only on day twelve, October 12th, was the Hyundai

floated off the rocks and the pollution threat sub-

stantially lessened. See pp. 2-4, supra.

During that period the Coast Guard vessels, equip-

ment, aircraft, and personnel were on the scene and

incurring the monitoring costs at issue. As the district

court found, the possibility that the Hyundai would

break up and cause a massive spill during that period

posed a “real, significant risk.” Pet. App. 52. There-

fore, the Coast Guard was guarding against the con-

tinued threat of a pollutant release, not merely monitor-

ing post-spill clean-up activities, as in Rohm and Haas.

2. Petitioners argue that they were deprived of due

process by the manner in which the Coast Guard sought

10

to recover its removal costs. Petitioners complain that

they had no opportunity for administrative review of

the Coast Guard’s decisions, with review available only

in the district court. Pet. 10. Petitioners then assert:

Because [petitioners] had no prior opportunity to

challenge the Coast Guard’s cost bill 7.7) ae

application of the arbitrary and capricious standard

by the District court without regard to whether the

costs were necessary, deprived [petitioners] of

meaningful review * * *.

* * * Deferring to the [Coast Guard’s] decisions

by applying the arbitrary and capricious standard

during that initial review [by the district court]

deprives the responsible party of meaningful

review.

Pet. 10-11. Petitioners did not raise that issue in the

courts below.’ Indeed, the district court found that “the

parties agree with the general proposition that the

arbitrary and capricious standard be used to evaluate

the [cost] decisions.” Pet. App. 35. That issue therefore

is not properly before this Court. See, e.g., Youakim v.

Miller, 425 U.S. 231, 234 (1976).

Second, petitioners invoke this Court’s decision in

Concrete Pipe and Products of California, Inc. v. Con-

struction Laborers Pension Trust for Southern Califor-

nia, 508 U.S. 602 (1993), for the proposition that “an

agency action that is essentially non-adjudicative in

character cannot, as a constitutional matter, be afforded

deference during the initial review by a neutral adju-

3 Petitioners state that they did argue this issue to the Ninth

Circuit, Pet. 11 n.3, but provide no citation to any part of their

briefs that raised this issue, nor are we aware of any.

11

dicator.” Pet. 12.4 Petitioners in fact received full, de

novo review in the district court. In making its factual

findings, the district court “appl[ied] the preponderance

of the evidence rule as to the party (the United States)

having the burden of proof.” Pet App. 44 n.4. The dis-

trict court made extensive, well reasoned findings on all

relevant facts. Id. at 39-62. The court then determined

de novo whether the actions found as a fact to have

occurred were rationally taken by the Coast Guard. /d.

at 62. The court expressly found that the Coast Guard’s

actions and costs were neither arbitrary nor capricious

and, “under the extreme and sensitive circumstances of

this [marine environment pollution] project, were also

reasonable and necessary costs.” /bid.

Petitioners’ contention that they are entitled to

review of whether any particular cost is “prudent, or

necessary” (Pet. 10) finds no support in the text of the

OPA, which contains no such limitation. See 33 U.S.C.

2702(a). The court of appeals thus correctly held that

OPA “does not authorize the imposition of any higher

standard” than whether the recovery of removal costs

sought by the United States is “arbitrary or capri-

cious.” Pet. App. 10.

3. Petitioners contend that the courts below erred in

allowing for the recovery of monitoring costs, “base

costs,” and attorney’s fees. Pet. 13-16. The court of

4 In Concrete Pipe, this Court held that provisions of the

Multiemployer Pension Plan Amendments Act of 1980, Pub. L. No.

96-364, 94 Stat. 1208, do not violate due process through judicial

review of an arbitrator’s determinations when in such judicial

review “there shall be a presumption, rebuttable only by a clear

preponderance of the evidence, that the findings of fact made by

the arbitrator were correct.” 508 U.S. at 611 (quoting 29 U.S.C.

1401(c)).

a

12

appeals properly decided those issues under the OPA,

and no other court of appeals has addressed them.

First, with respect to monitoring costs, Congress

provided in OPA Section 2702(a) that persons whose

vessels discharge or “which pose[] the substantial

threat of a discharge of oil” are liable for “all removal

costs incurred by the United States.” 33 U.S.C.

2702(b)(1)(A). In Section 2702(b), Congress provided

for recovery of “all removal costs incurred by the

United States * * * under subsection (c), (d), (e),

or (l) of [the FWPA, 33 U.S.C. 1321].” 33 U.S.C.

2702(b)(1)(A). Under the FWPCA, in turn, the United

States may recover costs for “monitor[ing] all Federal,

State, and private actions to remove a discharge.” 33

U.S.C. 1321(c)(1)(B\(ii). See Pet. App. 4-7. OPA thus

specifically included monitoring within the scope of

recoverable removal activities, and the court of appeals

concluded that the Coast Guard’s monitoring of the

Hyundai was undertaken as part of “its effort to

prevent or minimize a threatened oil discharge.” Jd. at

, A

Second, with regard to base costs, the court of

appeals noted that “[t]he fact that, if this near-disaster

had not occurred, the personnel would have been paid

to perform some other task does not alter the reality

that the mishap did occur and [the] Coast Guard per-

sonnel were paid to monitor a potential spill.” Pet.

App. 10-11. The court then noted that “[bJase costs

represent real costs to the United States and are re-

coverable to the extent they are allocable to a response

to an oil spill.” Jd. at 11. The court’s conclusion is

consistent with the FWPCA case law used by Congress

13

as the foundation of the OPA,’ as well as consistent

with case law under other environmental statutes and

the general maritime law, all of which allow recovery of

base costs and administrative costs and overhead

allocable to the event.°

Finally, petitioners claim that attorney’s fees are not

properly awarded here because, they contend, this is

not an action to recover removal costs paid from the Oil

Spill Liability Trust Fund, as required by 33 U.S.C.

° Congress expressly looked to the case law under the FWPCA

(also referred to as the Clean Water Act) as the framework for the

OPA. See S. Rep. No. 94, 101st Cong., 2d Sess. 10-12 (1990).

Under the FWPCA, the United States’ recovery is not conditioned

upon any proof of “necessity” or even “reasonableness.” See, ¢.g.,

Commonwealth of Puerto Rico v. SS ZOE COLOCOTRONI, 456

F.Supp. 1327, 1347 (D.P.R. 1978) (recovery is “measured by the

Government’s actual costs regardless of their reasonableness”),

aff'd in part, vacated in part on other grounds, 628 F.2d 652 (1st

Cir. 1980), cert. denied, 450 U.S. 912 (1981). Under the FWPCA,

administrative and overhead costs are recoverable. See, e.g.,

United States v. MORANIA BARGE 200, 1983 Amer. Maritime

Cases 2761, 2764 (E.D.N.C. 1982) (FWPCA costs include Coast

Guard internal costs for personnel, material, equipment, supplies,

overhead, and other internal costs); United States v. Slade, Inc.,

447 F. Supp. 638 (E.D. Tex. 1978); United States v. Hollywood

Marine, Inc., 519 F.Supp. 688, 692 (S.D. Tex. 1981); David A.

Bagwell, Hazardous and Noxious Substances, 62 Tul. L.Rev. 433,

443 (1988). See also Union Petroleum Corp. v. United States, 651

F.2d 734, 744 (Ct. Cl. 1981) (holding polluter liable for govern-

ment’s costs).

® See, e.g., United States v. R.W. Meyer, Inc., 889 F.2d 1497,

1502-1504 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990)

(CERCLA); United States v. American Cyanamid Co., 786 F.

Supp. 152, 156 (D.R.I. 1992) (same); United States v. Hardage, 750

F. Supp. 1460, 1504 (W.D. Okla. 1990) (same), cert. denied, 510 U.S.

913 (1993). See also Freeport Sulphur Co. v. S.S. HERMOSA, 526

F.2d 300, 303-304 (5th Cir. 1976) (general maritime law).

14

2715(c) (Supp. III 1997). Petitioners concede, however,

that the recovery of funds in this case will be paid into

the Oil Spill Liability Trust Fund. Pet. App. 12. Ac-

cordingly, as the court of appeals noted, any argument

based upon the “happenstance that, as a matter of

accounting, the Fund paid for the removal costs after,

rather than before, the claim against the responsible

party was litigated,” would defeat the purposes of the

OPA by elevating form over substance. Ibid.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

ROBERT GREENSPAN

ALFRED MOLLIN

Attorneys

SEPTEMBER 1999

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