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UNITED STATES v. CITY OF NEW YORK

March 7, 1979

UNITED STATES of America, Plaintiff,
v.
CITY OF NEW YORK, Defendant



The opinion of the court was delivered by: GAGLIARDI

MEMORANDUM DECISION

This is an action to recover civil penalties assessed by the United States Coast Guard against the City of New York (the "City") for discharges of oil into the navigable waters of the United States in violation of the Federal Water Pollution Control Act of 1972 ("FWPCA"), 33 U.S.C. § 1321(b)(3). Jurisdiction is premised upon 33 U.S.C. § 1321(n). The City has moved to dismiss the complaint for failure to state a claim. Rule 12(b)(6), Fed.R.Civ.P. The motion is denied.

 The allegations of the complaint, deemed true for the purposes of this motion, are as follows. On five separate occasions between July 11, 1975 and July 9, 1976, a discharge of oil into the navigable waters of the United States occurred from a City owned or operated vessel or facility. On each occasion, the District Commander of the Third Coast Guard District assessed a civil penalty against the City pursuant to 33 U.S.C. § 1321(b)(6), which assessment was affirmed, on appeal, by the Commandant of the United States Coast Guard. The aggregate amount of the penalties assessed is $ 1200.00. The City has not paid the amount due.

 The City has moved to dismiss the complaint on two separate grounds: 1. that the City is not an "owner, operator or person" as defined by 33 U.S.C. § 1321(a) and thus cannot be assessed a civil penalty pursuant to § 1321(b)(6) and 2. that three of the penalties assessed are invalid because the Coast Guard failed to show fault on the part of the City and the statute does not impose strict liability for oil discharges.

 Liability of Municipal Corporations for Civil Penalties Pursuant to § 1321(b) (6)

 The FWPCA, a modification of the 1970 Water Quality Improvement Act ("WQIA"), is "a comprehensive plan attempting to expedite oil pollution cleanup and to establish a workable scheme for limiting and distributing liability." Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162 (2d Cir. 1978). The broad policy of the Act is that "there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States . . . ," 33 U.S.C. § 1321(b)(1), and "(t)he discharge of oil or hazardous substances . . . into or upon the navigable waters of the United States . . . in harmful quantities as determined by the President . . . is prohibited." Id. § 1321(b)(3). Owners or operators of vessels and onshore or offshore facilities are liable for clean-up costs, subject to the defenses of act of God, act of war, negligence of the United States government, or the act or omission of a third party. Id. § 1321(f). If the discharged substance is nonremovable, the owner or operator is liable for a civil penalty of varying amount dependent upon the amount and toxicity of the substance spilled and subject to the four defenses enumerated above. Id. § 1321(b)(2) (B). Finally, 33 U.S.C. § 1321(b)(6), the provision at issue in this case, makes "any owner, operator, or person" in charge of any onshore facility, offshore facility or vessel from which oil is discharged liable for a civil penalty of up to $ 5,000, in an amount to be determined by the Coast Guard.

 Resolution of the City's first ground for dismissal turns upon an interpretation of the definitional sections of the Act. For the purpose of 33 U.S.C. § 1321, the term "owner or operator"

 
means (A) in the case of a vessel, any person owning, operating, or chartering by demise, such vessel, and (B) in the case of an onshore facility, and an offshore facility, any person owning or operating such onshore facility or offshore facility, and (C) in the case of any abandoned offshore facility, the person who owned or operated such facility immediately prior to such abandonment.

 33 U.S.C. § 1321(a)(6). Moreover, 33 U.S.C. § 1321(a)(7) states that:

 
"person" includes an individual, firm, corporation, association, and a partnership.

 The City contends that § 1321(a)(7)"s failure to enumerate municipalities among the alternative definitions of "person" indicates that Congress intended to exclude municipalities from the scope of the FWPCA.

 The starting point for questions of statutory interpretation must be the words of the statute itself. See, e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 198-99, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976). Although § 1321(a)(7) does not specifically include municipalities within its definition of "persons" potentially liable under the Act, it does not specifically exclude such entities either. Indeed,

 
(t)he word "includes" is usually a term of enlargement, and not of limitation . . . It therefore conveys the conclusion that there are other items includable, though not specifically enumerated by the statutes.

 Argosy Limited v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968), Citing Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 62 S. Ct. 1, 86 L. Ed. 65 (1941); United ...


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