Case 2:21-cv-01705-JDC-KK Document 1 Filed 06/17/21 Page 1 of 11 PageID #: 1
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
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`__________________________________________
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`UNITED STATES OF AMERICA and
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`STATE OF LOUISIANA,
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`Plaintiffs,
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`v.
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`CITGO PETROLEUM CORPORATION,
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`Defendant.
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`__________________________________________)
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`COMPLAINT
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`The United States of America, by authority of the Attorney General of the United States,
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`acting at the request of the United States Department of Commerce’s National Oceanic and
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`Atmospheric Administration (“NOAA”) and the United States Department of the Interior
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`(“DOI”) through the United States Fish and Wildlife Service (“FWS”), and the State of
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`Louisiana (the “State”), appearing through the Louisiana Oil Spill Coordinator’s Office,
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`Department of Public Safety & Corrections (“LOSCO”), Louisiana Department of Natural
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`Resources (“LDNR”), Louisiana Department of Environmental Quality (“LDEQ”), Louisiana
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`Department of Wildlife and Fisheries (“LDWF”), and the Louisiana Coastal Protection and
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`Restoration Authority (“CPRA”), through the undersigned attorneys, file this complaint and
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`allege as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought against Defendant CITGO Petroleum Corporation
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`(“CITGO” or “Defendant”) for recovery of damages for injury to, destruction of, loss of, or loss
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`of use of natural resources, under Sections 1002(a) and 1002(b)(2)(A) of the Oil Pollution Act
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`(“OPA”), 33 U.S.C. §§ 2702(a) and 2702(b)(2)(A), and Section 2480 of the Louisiana Oil Spill
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`Prevention and Response Act (“OSPRA”), La. R.S. 30:2480. Plaintiffs seek damages in order to
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`compensate for and restore natural resources injured by CITGO’s oil discharge from its refinery
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`in Lake Charles, Louisiana, on or about June 18 and 19, 2006. Plaintiffs also seek to recover
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`unreimbursed costs of assessing such damages.
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`JURISDICTION AND VENUE
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`2.
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`This Court has jurisdiction over the subject matter of this action pursuant to
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`28 U.S.C. §§ 1331 and 1345 and Section 1017(b) of OPA, 33 U.S.C. § 2717(b). The Court also
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`has supplemental jurisdiction over the State law claim pursuant to 28 U.S.C. § 1367.
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`3.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), and Section
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`1017(b) of OPA, 33 U.S.C. § 2717(b), because Defendant resides and does business in this
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`district and the oil discharge occurred in this district.
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`STATUTORY BACKGROUND
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`The Oil Pollution Act of 1990
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`4.
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`Section 1002(a) of OPA, 33 U.S.C. § 2702(a), provides that “each responsible
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`party for a . . . facility from which oil is discharged . . . into or upon the navigable waters or
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`adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages
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`specified in [33 U.S.C. § 2702(b)] that result from such incident.”
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`5.
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`Section 1001(32)(B) of OPA, 33 U.S.C. § 2701(32)(B), defines “responsible
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`party” to include, in the case of an onshore facility, “any person owning or operating the
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`facility.”
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`6.
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`Section 1001(27) of OPA, 33 U.S.C. § 2701(27), defines “person” to include a
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`corporation.
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`7.
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`Section 1001(9) of OPA, 33 U.S.C. § 2701(9), defines “facility” to mean “any
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`structure, group of structures, equipment, or device (other than a vessel) which is used for one or
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`more of the following purposes: exploring for, drilling for, producing, storing, handling,
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`transferring, processing, or transporting oil.”
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`8.
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`Section 1001(24) of OPA, 33 U.S.C. § 2701(24), defines “onshore facility” to
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`mean “any facility . . . of any kind located in, on, or under, any land within the United States
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`other than submerged land.”
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`9.
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`Section 1001(23) of OPA, 33 U.S.C. § 2701(23), defines “oil” to mean “oil of any
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`kind or in any form, including petroleum.”
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`10.
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`Section 1001(7) of OPA, 33 U.S.C. § 2701(7), defines “discharge” to mean “any
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`emission (other than natural seepage), intentional or unintentional,” and to include “spilling,
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`leaking, pumping, pouring, emitting, emptying, or dumping.”
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`11.
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`Section 1001(21) of OPA, 33 U.S.C. § 2701(21), defines “navigable waters” to
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`mean “the waters of the United States, including the territorial seas.”
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`12.
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`Section 1002(b)(2) of OPA, 33 U.S.C. § 2702(b)(2), provides that the “damages”
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`referred to in Section 1002(a) of OPA, 33 U.S.C. § 2702(a), include “[d]amages for injury to,
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`destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of
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`assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an
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`Indian tribe trustee, or a foreign trustee.”
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`13.
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`Section 1001(20) of OPA, 33 U.S.C. § 2701(20), defines “natural resources” to
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`include “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other
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`such resources belonging to, managed by, held in trust by, appertaining to, or otherwise
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`controlled by the United States (including the resources of the exclusive economic zone), any
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`State or local government or Indian tribe, or any foreign government.”
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`14.
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`Section 1001(14) of OPA, 33 U.S.C. § 2701(14), defines “incident” to mean “any
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`occurrence or series of occurrences having the same origin, involving one or more . . . facilities
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`. . . resulting in the discharge . . . of oil.”
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`The Louisiana Oil Spill Prevention and Response Act
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`15.
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`The purpose of OSPRA is to assist the State of Louisiana “in fulfilling its duties
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`to protect, conserve, and replenish the natural resources of th[e] state in accordance with Article
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`XI, Section 1 of the Constitution of Louisiana.” La. R.S. 30:2453(A).
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`16.
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`It is the intent of OSPRA “to support and complement the Oil Pollution Act of
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`1990 (P.L. 101-380) and other federal law, specifically those provisions . . . relating to the
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`responsibilities of state agencies designated as natural resource trustees. The legislature intends
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`[OSPRA] to be interpreted and implemented in a manner consistent with federal law.”
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`La. R.S. 30:2453(B).
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`17.
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`OSPRA provides that a responsible party shall make full payment or initiate
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`restoration, rehabilitation, replacement, or mitigation of damages to natural resources after
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`completion of an assessment of natural resource damages and the amount of the damages by the
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`state agencies designated as natural resource trustees. La. R.S. 30:2480(G).
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`18.
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`“Responsible party” means “[t]he owner or operator of a . . . terminal facility
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`from which an unauthorized discharge of oil emanates or threatens to emanate.”
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`La. R.S. 30:2454(22)(a). “Responsible party” also includes any person “who causes, allows, or
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`permits an unauthorized discharge of oil or threatened unauthorized discharge of oil.” La.
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`R.S. 30:2454(22)(c).
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`19.
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`“Owner” or “operator” means “[a]ny person owning a terminal facility . . . ; or [a]
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`person operating a terminal facility by lease, contract, or other form of agreement.”
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`La. R.S. 30:2454(20)(b).
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`20.
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`“Terminal facility” includes any “waterfront . . . pipeline, structure, equipment, or
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`device used for the purposes of drilling for, pumping, storing, handling, or transferring oil and
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`operating where a discharge from the facility could threaten waters of the state . . . .”
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`La. R.S. 30:2454(28).
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`21.
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`“‘Unauthorized discharge of oil’ means any actual or threatened discharge of oil
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`not authorized by a federal or state permit.” La. R.S. 30:2454(29).
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`22.
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`“‘Discharge of oil’ means an intentional or unintentional act or omission by which
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`harmful quantities of oil are spilled, leaked, pumped, poured, emitted, or dumped into or on
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`coastal waters of the state or at any other place where, unless controlled or removed, they may
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`drain, seep, run, or otherwise enter coastal waters of the state.” La. R.S. 30:2454(7).
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`23.
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`“‘Oil’ means oil of any kind or in any form, including but not limited to crude oil,
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`[and] petroleum . . . .” La. R.S. 30:2454(18).
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`24.
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`“Damages” means and includes “damages for injury to, destruction of, or loss of
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`natural resources as defined in [OSPRA], includ[ing] the reasonable and any direct, documented
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`cost to assess, restore, rehabilitate, or replace injured natural resources, or to mitigate further
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`injury, and their diminution in value after such restoration, rehabilitation, replacement or
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`mitigation, which shall be recoverable by the state of Louisiana.” La. R.S. 30:2454(5)(a).
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`25.
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`“‘Natural resources’ means all land, fish, shellfish, fowl, wildlife, biota,
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`vegetation, air, water, groundwater supplies, and other similar resources owned, managed, held
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`in trust, regulated, or otherwise controlled by the state.” La. R.S. 30:2454(17).
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`26.
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`NOAA and FWS are the designated United States trustees of natural resources
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`injured by CITGO’s oil discharge pursuant to Section 1006(b)(2) of OPA, 33 U.S.C.
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`§ 2706(b)(2), Subpart G of the National Oil and Hazardous Substances Pollution Contingency
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`Plan (“NCP”) (40 C.F.R. §§ 300.600, et seq.), and Executive Order 12580 (3 C.F.R., 1987
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`Comp. p. 193, 52 Fed. Reg. 2923 (January 23, 1987)), as amended by Executive Order 12777,
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`56 Fed. Reg. 54757 (October 19, 1991).
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`27.
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`The Louisiana trustees, LOSCO, LDNR, LDEQ, LDWF, and CPRA (collectively,
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`the “State Trustees”) are designated by the Governor of Louisiana as State trustees of natural
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`resources injured by CITGO’s oil discharge pursuant to Section 1006(b)(3) of OPA, 33 U.S.C.
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`§ 2706(b)(3), and 40 C.F.R. § 300.605.
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`FIRST CLAIM FOR RELIEF
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`Natural Resource Damages under Section 1002 of OPA
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`28.
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`29.
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`Paragraphs 1 through 14, 26, and 27 are realleged and incorporated herein.
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`CITGO is a corporation and a “person” within the meaning of Section 1001(27)
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`of OPA, 33 U.S.C. § 2701(27).
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`30.
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`At the time of the oil discharge, beginning on or about June 18, 2006, CITGO was
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`the owner and operator of the CITGO refinery in Lake Charles, Louisiana, including its
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`refinery’s wastewater treatment unit and related storage tanks.
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`31.
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`CITGO’s refinery in Lake Charles, including its wastewater treatment unit and
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`related storage tanks, is an “onshore facility” within the meaning of Section 1001(24) of OPA,
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`33 U.S.C. § 2701(24).
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`32.
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`CITGO was the “responsible party” for the onshore facility within the meaning of
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`Section 1001(32)(B) of OPA, 33 U.S.C. § 2701(32)(B).
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`33.
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`On or about June 18 and 19, 2006, CITGO discharged millions of gallons of
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`waste (or “slop”) oil and oily wastewater (collectively, “oil”) from two wastewater storage tanks
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`at its wastewater treatment unit. The ten-million-gallon tanks were designed to serve as storm
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`surge tanks, but CITGO for years had been improperly using the tanks to accumulate oil, sludge,
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`and oily wastewater at its treatment unit. Oil overflowed from the top of the two tanks during a
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`rainstorm. The secondary containment berm around the tanks was faulty and failed in multiple
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`places, allowing oil to flow into and upon the adjacent Indian Marais waterway and shorelines
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`and then into the Calcasieu River and the estuary and adjoining shorelines.
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`34.
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`At least 54,000 barrels (2,268,000 gallons) of waste (or “slop”) oil and untold
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`millions of gallons of oily wastewater flowed into the waterways during the incident.
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`35.
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`After trial in a related Clean Water Act enforcement action, the district court
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`determined that the cause of the oil discharge was CITGO’s gross negligence in the operation
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`and maintenance of its wastewater treatment plant and the lack of sufficient storage and
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`treatment capacity. The district court found that CITGO’s oil spill was “massive, excessive, and
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`a tragedy.”
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`36.
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`CITGO’s spilling of oil on or about June 18 and 19, 2006, was a “discharge”
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`within the meaning of Section 1001(7) of OPA, 33 U.S.C. § 2701(7).
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`37.
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`All of the oil released during the incident was “oil” within the meaning of Section
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`1001(23) of OPA, 33 U.S.C. § 2701(23).
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`38.
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`39.
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`CITGO’s oil discharge was into navigable waters of the United States.
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`CITGO, the United States, and the State responded to the spill and conducted and
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`monitored cleanup efforts, which took months to complete.
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`40.
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`CITGO’s oil discharge polluted a significant portion of the Indian Marais,
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`Calcasieu River, and the estuary. The waterways and approximately 150 miles of shoreline were
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`contaminated with oil, including marsh, beach, residential, and industrial areas, and a wide
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`variety of natural resources were harmed by the discharged oil.
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`41.
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`Numerous types of birds and aquatic and terrestrial life are known to inhabit the
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`areas impacted by the oil discharge. Aquatic organisms include, but are not limited to, finfish,
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`crustaceans, and shellfish. Wildlife species include, but are not limited to, resident and migratory
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`birds, furbearers, aquatic mammals, alligators, and turtles.
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`42.
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`The discharged oil killed birds and fish and other aquatic life and contaminated
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`aquatic and shoreline habitats. During the oil spill response and cleanup, dead birds and marine
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`organisms, including fish and invertebrates, were observed in the oiled waterways and along the
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`shoreline. Oil traveled downriver from the refinery as well as upriver due to tidal influences.
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`43.
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`CITGO’s oil discharge disrupted commerce and navigation along the Ship
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`Channel and the Intracoastal Waterway, forced the closure of the ship channel for ten days, and
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`curtailed recreational uses of the impacted river and estuary.
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`44.
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`CITGO’s oil discharge caused injury to, destruction of, loss of, or loss of use of
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`“natural resources” belonging to, managed by, held in trust by, appertaining to, or otherwise
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`controlled by the United States or the State within the meaning of Section 1001(20) of OPA,
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`33 U.S.C. § 2701(20), including marsh, subtidal, and intertidal habitats and a wide variety of
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`aquatic life, birds, and terrestrial life.
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`45.
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`The Trustees for the United States and the State are coordinating natural resource
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`injury assessment and restoration efforts. To assess natural resource injuries, the Trustees have
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`conducted extensive field work and research and analysis. The Trustees are using information
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`from the response and assessment work, including field observations, analysis of the specific oil
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`chemistry involved in the discharge, oil toxicity from literature and studies, and modeling. The
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`Trustees are using this information to determine the compensatory restoration requirements for
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`the oil discharge.
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`46.
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`Plaintiffs have incurred costs in assessing injuries to natural resources resulting
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`from CITGO’s oil discharge.
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`47.
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`Pursuant to Section 1002(a) and (b)(2) of OPA, 33 U.S.C. § 2702(a) and (b)(2),
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`CITGO is liable to the United States and to the State Trustees for damages for injury to,
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`destruction of, loss of, or loss of use of natural resources, including the reasonable costs of
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`assessing such injury, destruction, loss, or loss of use resulting from the discharge of oil from
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`CITGO’s onshore facility as alleged herein.
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`SECOND CLAIM FOR RELIEF
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`Natural Resource Damages under Section 2480 of OSPRA
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`48.
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`49.
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`The preceding paragraphs are realleged and incorporated herein by reference.
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`The Louisiana trustees, LOSCO, LDNR, LDEQ, LDWF, and CPRA serve as
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`State Trustees under OSPRA according to La. R.S. 30:2451, et seq. and LA. ADMIN. CODE tit. 43,
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`part XXIX, et seq.
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`50.
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`CITGO was the owner and operator of its Lake Charles refinery and, as such, is
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`the “responsible party” under OSPRA. La. R.S. 30:2454(22).
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`51.
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`The oil discharge from CITGO’s storage tanks at its refinery, on or about June 18
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`and 19, 2006, was not authorized by a federal or state permit and therefore constitutes an
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`“unauthorized discharge of oil” under OSPRA. La. R.S. 30:2454(29).
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`52.
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`The unauthorized discharge of oil caused injury to, destruction of, or loss of
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`natural resources managed, held in trust, and/or regulated by the State Trustees.
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`53.
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`The State Trustees have incurred costs in assessing damages to natural resources
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`resulting from the unauthorized discharge of oil.
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`54.
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`Pursuant Section 2480 of OSPRA, La. R.S. 30:2480, CITGO is liable to the State
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`Trustees for natural resource damages, including the reasonable cost of assessing such damages,
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`resulting from the unauthorized discharge of oil from CITGO’s onshore facility as alleged
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`herein.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully request that the Court:
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`A.
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`Award Plaintiffs a judgment against Defendant CITGO Petroleum Corporation
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`for all damages for injury to, destruction of, loss of, or loss of use of natural resources, including
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`the reasonable costs of assessing such injury, destruction, loss, or loss of use; and
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`B.
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`Grant such other relief as this Court deems just and proper.
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`Respectfully submitted,
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`FOR PLAINTIFF UNITED STATES OF AMERICA:
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`ELLEN MAHAN
`Acting Deputy Assistant Attorney General
`Environment and Natural Resources Division
`United States Department of Justice
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` /s/ Jason T. Barbeau .
`JASON T. BARBEAU
`Senior Trial Attorney (D.C. Bar No. 468200)
`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`P. O. Box 7611 Ben Franklin Station
`Washington, DC 20044
`(202) 616-8908 (Telephone)
`(202) 616-6584 (Facsimile)
`jason.barbeau@usdoj.gov
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`ALEXANDER C. VAN HOOK
`Acting United States Attorney
`Western District of Louisiana
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`KAREN J. KING (#23508)
`Assistant United States Attorney
`800 Lafayette Street, Suite 2200
`Lafayette, LA 70501-6832
`Telephone: (337) 262-6618
`Facsimile: (337) 262-6693
`karen.king@usdoj.gov
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`OF COUNSEL:
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`Jared J. Piaggione
`Attorney Advisor
`National Oceanic and Atmospheric Administration
`Office of General Counsel
`Natural Resources Section
`1315 East-West Highway
`SSMC3, Suite 15106
`Silver Spring, MD 20910
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`Trish Cortelyou-Hamilton
`Attorney-Adviser
`U.S. Department of the Interior
`Office of the Solicitor
`Richard B. Russell Federal Building & U.S. Courthouse
`75 Ted Turner Drive, S.W., Ste. 304
`Atlanta, GA 30303
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`FOR PLAINTIFF STATE OF LOUISIANA:
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`/s/ Stephanie C. Morris*
`STEPHANIE C. MORRIS
`Attorney, LA Bar Roll No. 30279
`La. Oil Spill Coordinator’s Office
`P. O. Box 66614
`Baton Rouge, LA 70896
`(225) 925-6606 (Telephone)
`(225) 925-7068 (Facsimile)
`stephanie.morris@la.gov
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`*Counsel for the State of Louisiana provided consent for the placement of her electronic
`signature on this pleading.
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