Loss of Controlled Confinement Is a Discharge Under CWA
Loss of Controlled Confinement Is a Discharge Under CWA
By: Sarah Thompson
Edited by: Molly MacKenzie
United States v. B.P. Exploration and Prod., Inc., 753 F.3d 570 (5th Cir. 2014)
This case was decided by the Court of Appeals for the Fifth Circuit on June 4th, 2014. BP and Anadarko are the co-owners of the Macondo well and co-lessees of the continental shelf block in which the well was located. The co-owners appealed Judge Barbier’s April 20, 2010 summary judgment in favor of the United States on the issue of civil liability under the Clean Water Act (hereinafter “CWA”). The Fifth Circuit, after reviewing the summary judgment de novo, affirmed the lower court’s finding that the co-owners were civilly liable for the discharge of oil from the Macondo well under the CWA.The relevant statute (33 U.S.C. § 1321(b)(7)(A)) imposes mandatory civil penalties upon the owners of facilities “from which oil or a hazardous substance is discharged.” The first question below and on appeal is when and/or where a discharge occurred. While BP and Anadarko owned the well, the Deepwater Horizon, a mobile offshore drilling vessel involved in the incident, was owned by several Transocean entities. BP and Anadarko asserted that the “discharge” came out of the riser of the Deepwater Horizon and that the penalty should therefore be assessed against the Transocean entities.The Court, in affirming the district court, rejected this argument and undertook to clarify and define the term “discharge” using statutory examples and common usage. 33 U.S.C. § 1321(a)(2) provides a list of examples, including but not limited to leaking, spilling, pumping, pouring, emitting, emptying or dumping. The Court cited the Oxford Dictionaries Online to find that the ordinary use of discharge means when a fluid is “flowing out from where it has been confined.” The Court reasoned that both the statutory examples and the ordinary meaning suggested that a discharge occurs at a point in which controlled confinement is lost.
The Fifth Circuit ultimately found there was no genuine dispute as to BP and Anadarko’s liability for civil penalties under §311 of the CWA. The co-owners did not contest ownership of the well, nor that its cement cover had failed, resulting in the loss of controlled confinement. As such, they admittedly are the owners of a facility “from which oil or a hazardous substance was discharged.” The Court found this liability to be unaffected by the path traversed by the discharged oil, or by any culpability on the part of the Transocean entities.
