Legal Watch: Volume 15

Prepared by William H. Bode
Bode & Grenier, LLP
1150 Connecticut Ave., NW
Washington, D.C. 20036
Telephone: 202-862-4300 | Email: wbode@bode.com

EXXON/MOBIL OIL CORP. NOT LIABLE FOR OIL LEAKING FROM CSX TANK CAR

Case Summary: A tank car owned by the railroad company CSX Transportation, Inc. was loaded with transmission fluid at Exxon/Mobil Oil Corp.’s Baytown, Texas facility. The morning after the tank car arrived at the CSX Stanley Yard in Waldridge, Ohio, its contents were seen “gushing” out of the outlet spout on the car’s bottom. CSX sued Exxon/Mobil seeking over $300,000 to cover the cost of cleaning the spill. CSX contended that it was obvious from the spill that Exxon/Mobil had failed to properly inspect the car to make sure the load was properly secured. The Ohio Federal District Court hearing the matter granted Exxon/Mobil’s motion for summary judgment. In support of its decision, the Court gave great weight to two Exxon/Mobil business records: the May 7, 2002 Tank Car Pre-Shipment Mechanical Inspection Checklist, and the May 10, 2002 Tank Car Loader’s Checklist. Both Checklists indicate that Exxon/Mobil employees properly inspected the tank car and determined that the belly cap was operational and properly installed. The Court specifically rejected the legal doctrine of “res ipsa loquitur” (the accident speaks for itself) because the tank car was not under the exclusive control of Exxon/Mobil after it left the Baytown facility.

LESSON: Exxon/Mobil’s business records -- showing that the belly cap and safety pin were properly fastened -- were critical to the Court’s decision. Business records showing the results of inspections can be introduced into evidence in court proceedings, if they are routinely prepared and maintained. Maintaining such inspection reports is a very sound business practice for terminal operators. (CSX Transportation, Inc. v. Exxon/Mobil Corp.)

MANAGER OF FACILITY CRIMINALLY LIABLE FOR NEGLIGENT DISCHARGE OF POLLUTANTS INTO NAVIGABLE WATERS

Case Summary: David Ortiz was the manager of Chemical Specialties, Inc.’s propylene glycol distillation facility in Grand Junction, Colorado. In late April 2002, the city received complaints of a noxious odor from a black material seeping from a storm drain into the Colorado River. The material was tested and found to contain propylene glycol and a breakdown constituent of glycol. After an investigation by the EPA, it was determined that on two occasions propylene glycol had been flushed down a toilet at Chemical Specialties’ facility and was discharged via the storm drain into the Colorado River. The second discharge occurred after the EPA investigation began, and Chemical Specialties should have been on notice that waste from the toilet could enter the Colorado River. In this regard, most sewer-line connections around Grand Junction feed into a treatment plant. But because of an oversight, the sewer line at the Chemical Specialties facility fed directly into the Colorado River. The EPA filed criminal charges against Ortiz and a jury convicted him on two counts of both negligently and knowingly discharging pollutants into the Colorado River without a license. The trial judge acquitted Ortiz of the claim of negligently discharging the pollutant, finding that “There is no evidence that the Defendant had any awareness that the toilet was not connected to a sanitary sewer line before June 6, 2002” (the date of the EPA visit to the site). The EPA appealed and the Tenth Circuit Court of Appeals reversed the judgment of acquittal and reinstated the jury verdict. The Appeals Court also ruled that the one-year prison sentence was subject to enhancement for repetitive acts because the first discharge was a crime. In so holding, the Appeals Court swept aside Ortiz claim that, at the time of the first incident, he had no reason to suspect that his toilet was connected to the storm drain. The Court held that the intent of Ortiz was irrelevant; rather, the test was whether he “exercised the degree of care that someone of ordinary prudence would have exercised in the same circumstance.” Applying this definition, the Court found that Ortiz was negligent flushing the pollutant down the toilet.

LESSON: This case demonstrates the utmost care that terminal operators must observe when handling pollutants. Even though the defendant in this case had no reason to suspect that, because of an oversight by the city, the sewer line was flowing directly into the Colorado River rather than a treatment plant, nevertheless he was criminally liable for the discharge. (U.S. v. David Ortiz)

Please address any comments or questions to Mr. Bode at 202-862-4300 or wbode@bode.com.

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