UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNOCAL CORPORATION; UNION
OIL COMPANY OF CALIFORNIA;
and ERST, INC.,
Plaintiffs-Appellees-
Cross-Appellants,

v.
                                                     Nos. 99-55342
THE UNITED STATES OF
                                                          99-55381
AMERICA,
                                                     D.C. No.
Defendant,
                                                     CV-97-0024 RSWL
and
                                                     (RCx)

THE SOUTHERN CALIFORNIA
                                                     OPINION
REGIONAL RAIL AUTHORITY dba
METROLINK; and KRUZE &
KRUSE CONSTRUCTION &
ENGINGEERING, INC.,
Defendants-Appellants-
Cross-Appellees.

Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted
June 6, 2000--Pasadena, California

Filed August 7, 2000

Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Charles R. Breyer, District Judge.1
_________________________________________________________________

1 Honorable Charles R. Breyer, District Judge for the Northern District
of California, sitting by designation.

                               9557
 

Opinion by Judge Breyer

_________________________________________________________________
 
 

COUNSEL

Gregory M. Bergman, Alan H. Mittelman, Robert M. Mason
III, and Michele M. Goldsmith, Bergman & Wedner, Inc., Los
Angeles, California, for the defendants/appellants/cross-
appellees.

                               9565
 

William H. Collier, Jr., Dawn M. Schock, Joseph A. Walsh II,
and John M. Whelan, Keesal, Young & Logan, Long Beach,
California, for the plaintiffs/appellees/cross-appellants.

_________________________________________________________________

OPINION

BREYER, District Judge:

This case concerns the cause and aftermath of a 1995 crude
oil pipeline spill in Norwalk, California. The spill, which dis-
charged over 45,000 gallons of crude oil, occurred on Febru-
ary 20, 1995 during the construction of the Norwalk-Santa Fe
Metrolink railway station. At least 50 gallons of oil escaped
through a nearby storm drain and contaminated a local creek
and river. The total cost of cleanup was over $4 million.

In the wake of the spill, Union Oil Co. of California
("Unocal"), the owner of the ruptured pipeline, filed suit
against Southern California Regional Rail Authority, dba
Metrolink ("Metrolink"), for reimbursement of the cleanup
costs. After a two-week trial, a jury returned a verdict in favor
of Unocal based on negligence, breach of contract and quasi-
contract theories, and pursuant to the Oil Pollution Act of
1990 ("OPA"), 33 U.S.C. S 2701, et seq. Metrolink now
appeals, contesting the validity of both the jury's verdict and
the district court's special verdict form. Unocal has filed a
cross-appeal protesting the district court's award of pre-
judgment interest, its refusal to award attorney's fees, and its
refusal to issue a declaratory judgment.

BACKGROUND

I. Events Prior to the Spill

Unocal has operated the Stewart pipeline since 1957.
Metrolink is a joint powers authority established pursuant to

                               9566
 

California Government Code section 6509. In August 1994,
Metrolink contracted with Kruze & Kruze ("K&K") to con-
struct a new Metrolink railway station in Norwalk. As the
general contractor on the project, K&K subcontracted with
defendant ECCO to provide a Caterpillar 973 loader and an
operator to perform heavy equipment operations on the site.

The proposed Metrolink site in Norwalk was located
directly above a section of the Stewart pipeline. The site also
contained a Los Angeles County Flood Control District storm
drain box culvert which ran underground above the pipeline
near the western edge of the construction site.

In approximately December 1994, Emery Brown, K&K's
superintendent in charge of the Norwalk project, contacted
Underground Service Alert ("Dig Alert") for assistance. Dig
Alert operates a program which coordinates efforts to prevent
damage to underground pipelines during excavation and con-
struction. Dig Alert notified Unocal, and Unocal responded by
sending two employees, Richard Alvarez and Ned Voigt, to
the construction site to mark the course of the Stewart pipe-
line with yellow paint. Following maps and overlays, Alvarez
and Voigt marked the course of the pipeline.

Voigt also "potholed" in the area of the storm drain.
Potholing requires a digger to excavate a site slowly by hand
to uncover underground conditions. Voigt's potholing
revealed that, in the area surrounding the storm drain, the
Stewart pipeline was located approximately seven or eight
feet below the ground.

Nothing in the record indicates that anyone working on the
project had potholed in the area where the pipeline rupture
eventually occurred prior to the accident on February 20,
1995. Accordingly, no one at the site knew that the pipeline
was actually less than a foot under the ground in that area.

                               9567
 

II. February 20, 1995: The Spill

On February 20, 1995, Mike Beltran, an ECCO employee,
was operating a large Caterpillar on the Norwalk site. At the
time, Beltran was working under the direct supervision of
Emery Brown. Beltran spent several hours that day excavat-
ing the area surrounding the storm drain and piling the exca-
vated dirt along a nearby surface. At about 2:00 p.m., after
partially completing the excavation, Beltran began to smooth
out the excavated dirt in order to create a leveled access road
for vehicle traffic.

Beltran passed over the access road three times, lifting sev-
eral inches of dirt from the surface in the process. During Bel-
tran's fourth pass over the access road, one of the teeth from
the front bucket of the Caterpillar punctured the Stewart pipe-
line, causing a cascade of oil to emerge.

As noted above, an underground storm drain was located
on the construction site. A storm drain inlet ("the inlet") was
situated in the ground approximately 40 feet from the point of
the rupture. The grate-covered inlet connected to the storm
drain, which, in turn, opened into Coyote Creek, a nearby
waterway. Immediately after the rupture, the local fire depart-
ment and K&K employees placed a piece of plywood over the
inlet and piled dirt around and above the wood in order to
divert oil from the area of the drain inlet. The goal of this cov-
ering was to contain the spilling oil in a pool in order to pre-
vent it from escaping the immediate premises.

As a result of these efforts, the oil formed a pool to the
south of the pipeline with dimensions of approximately 200
feet by 20 feet. A second, less fortunate result of these efforts
was that the inlet, which was once readily visible, was now
completely covered and obscured from view. Because of this
initial berming, no one who arrived on the scene for the next
several hours was able to see that oil had spilled into the area
of the inlet.

                               9568
 

Shortly after the rupture, Unocal representatives arrived at
the scene, assumed the role of managing oil spill response,
established an incident command, and began cleanup efforts.
Among the Unocal representatives first on the scene were
Hugh Craddock, Unocal's supervisor of Health, Environment
and Safety, and Paul Bauer, Unocal's District Maintenance
Foreman. Bauer immediately telephoned Unocal's control
center to confirm that the pipeline had been shut down, and
then, along with Craddock and district foreman Lamar White,
closed a nearby block valve in the pipeline to ensure that oil
would not continue to flow into the spill area. However, their
initial visual inspections of the site raised no concerns about
possible infiltration of oil into the storm drain inlet.

Bauer and Craddock met with fire department personnel,
who briefed them on the situation. At that time, the Unocal
employees were not told, nor did they ask, about the existence
of a storm drain inlet. For the next several hours, Unocal's
agents on the scene did not know that the pool of oil that had
formed from the spill was located above the storm drain, nor
that a storm drain inlet was located 40 feet from the site and
had been sealed off by K&K personnel. Craddock and his
assistants did not speak with Voigt or Alvarez about the site,
nor did they consult maps, overlays, or as-built plans which
might have informed them of the location of the drain until
approximately six hours after their arrival.

At Craddock's instruction, Bill Orr, Unocal's Torrance dis-
trict operations foreman, placed a telephone call to the state
water resources control board and the Los Angeles County
Flood Control District ("LACFCD"). Orr placed the calls at
approximately 6:30 that evening. Orr told Charlie Sherman,
the County Department of Public Works' superintendent of
construction, that an oil spill had occurred but that no oil had
reached the storm drain and that no waterways had been
affected by the spill. Sherman and his team were the only
local officials legally authorized to enter the storm drain to
check for oil. Because Orr told him that the call was merely

                               9569
 

a courtesy, Sherman did not visit the site of the spill at all that
night.

After consulting several maps that evening, Craddock real-
ized that the oil pool was situated directly above the storm
drain. This discovery caused Craddock concern for two rea-
sons. First, he worried that, depending on the exact location
of the drain, it might be damaged during the excavation of soil
that was planned for the following morning. Second, he rec-
ognized that the drain's concrete walls might contain fissures
that could cause small leaks. At approximately 9:00 that
night, Craddock placed another telephone call to LACFCD,
informing Charlie Sherman that there was a storm drain in the
area and asking him to visit the site the next morning to moni-
tor the planned excavation.

III. After the Spill

Following the spill, some portion of the oil from the pipe-
line traveled through the storm drain into the north channel of
nearby Coyote Creek. The oil followed Coyote Creek into the
San Gabriel River, and then traveled south along the river.
Early in the morning on February 21, 1995, oil was discov-
ered in both Coyote Creek and the San Gabriel River.

Upon learning that oil had reached the waterways, the crew
from LACFCD checked the storm drain for the first time
since the spill. After entering the drain, the crew discovered
that oil had penetrated the drain by way of the inlet that had
been covered by K&K immediately following the spill. At
approximately 8:00 that morning, Unocal placed booms at the
storm drain outflow to prevent further contamination of the
water. Later that day, ERST, Inc. ("ERST"), a Unocal subsid-
iary, assumed the chief role in managing the cleanup effort.
On the same day, Metrolink's manager of construction, Lloyd
Suehiro, represented to ERST that Metrolink would pay the
costs of removing the spilled oil.

                               9570
 

Over the course of the next several months, Unocal coordi-
nated an effort to clean up the spilled oil. Agents of
Metrolink, meanwhile, assembled a "unified command" team
and developed a system for the submission of invoices from
the cleanup efforts. The total cost of the cleanup was $4.66
million. Approximately $2.4 million of that total was spent
cleaning up oil that had escaped into the waterways by way
of the storm drain.

IV. Procedural History

On September 15, 1995, Unocal submitted a formal claim
to Metrolink for reimbursement of the cleanup costs, pursuant
to Cal. Govt. Code S 915. Metrolink rejected the claim on
October 10, 1995.

On March 8, 1996, Unocal presented a written claim to the
National Pollution Funds Center ("NPFC"), the governmental
entity that administers the federal Oil Spill Liability Trust
Fund ("the Fund") established under the Oil Pollution Act.
The Fund provides monies for the reimbursement of oil spill
cleanup costs. On June 12, 1996, NPFC denied Unocal's
request. Unocal sought reconsideration of NPFC's decision,
but that request was denied on October 9, 1996.

On January 2, 1997, plaintiffs Unocal and ERST filed a
complaint seeking damages and declaratory relief against
Metrolink, K&K and ECCO, among others. The complaint
stated eight causes of action against Metrolink: (1) negli-
gence; (2) indemnity; (3) apportionment of fault; (4) indebita-
tus assumpsit; (5) quantum meruit; (6) breach of oral contract;
(7) recovery of removal costs pursuant to the OPA, 33 U.S.C.
S 2702; and (8) declaratory relief. The complaint also sought
judicial review, pursuant to 5 U.S.C. S 702, of NPFC's refusal
to fund the cleanup effort, but Unocal agreed to stay that
cause of action pending resolution of the claims against the
other defendants.

                               9571
 

Following a two-week trial, the jury returned a verdict in
favor of Unocal on August 14, 1998. The jury awarded Uno-
cal $4,653,851.02, finding that Metrolink was liable for 80%
of the damage and K&K was liable for the remaining 20%.
The jury found that (1) Metrolink and K&K had been negli-
gent and had been the sole cause of the spill, (2) Unocal had
exercised due care and taken precautions against foreseeable
risks, and (3) Metrolink had breached its agreement to reim-
burse Unocal for the costs of the cleanup.

Following the trial, the parties submitted a number of
motions. On November 23, 1998, Metrolink moved for judg-
ment after trial pursuant to Fed. R. Civ. P. 50(b) on Unocal's
oral contract and OPA claims. Metrolink also moved for a
new trial pursuant to Fed. R. Civ. P. 59(a) on the negligence,
contract, OPA, quantum meruit and indebitatus assumpsit
claims. The district court denied each of these motions by
written order on December 21, 1998. Judgment was entered
on February 1, 1999.

Unocal also made several post-trial motions. On October 5,
1998, Unocal moved for an award of prejudgment interest
under the OPA, an award of attorney's fees and a declaration
formally identifying Metrolink and K&K as "responsible par-
ties" under the OPA. By written order dated November 9,
1998, the district court granted Unocal's motion for pre-trial
interest at a rate of 5.87% per annum, and denied its requests
for attorney's fees and declaratory relief.

On January 19, 1999, Metrolink and K&K filed this appeal
challenging all of the district court's adverse orders in the
case. This appeal challenges the validity of the jury's findings
of negligence, OPA, contractual and quasi-contractual liabil-
ity.

On January 29, 1999, Unocal filed its cross-appeal chal-
lenging the district court's November 9, 1998 order. The
cross-appeal challenges the district court's decision to award

                               9572
 

pre-judgment interest at a rate of 5.87%, to deny attorney's
fees and to deny Unocal's request for a declaratory judgment.

DISCUSSION

I. Metrolink's Claims on Appeal

As noted above, the jury in this matter concluded that, pur-
suant to the provisions of the OPA, Metrolink was 80% liable
and K&K was 20% liable for the damage caused by the spill.
The jury concluded that Unocal and ERST were not liable to
any degree. In this appeal, Metrolink challenges the jury's
findings, arguing that they are not supported by the evidence
in the record. According to Metrolink, even if the agency and
its contractor were partially at fault for the spill, Unocal was
also at least partially responsible.

We review the district court's denial of Metrolink's Rule
50(b) motion for judgment de novo to determine whether the
jury's verdict was supported by substantial evidence. See
Erickson v. Pierce County, 960 F.2d 801, 804 (9th Cir.), cert.
denied, 113 S.Ct. 815 (1992). We review for abuse of discre-
tion the district court's denial of Metrolink's motion for a new
trial. See Ruvalcaba v. City of Los Angeles, 64 F.3d 1323,
1325 (9th Cir. 1995).

A. The OPA's Legal Standard

[1] The standards of liability in this case are governed by
the OPA, 33 U.S.C. S 2701, et seq. Under the OPA, anyone
owning or operating a pipeline is held strictly liable for any
removal costs and damages caused by a discharge of oil from
that pipeline. 33 U.S.C. S 2702(a). The owner/operator, desig-
nated under the OPA as the "responsible party, " may state a
complete defense to liability if it can establish, by a prepon-
derance of the evidence, that (1) the discharge was caused
solely by the act or omission of a third party; (2) the responsi-
ble party exercised due care with respect to the pipeline; and

                               9573
 

(3) the responsible party took precautions against foreseeable
acts or omissions of third parties and the foreseeable conse-
quences of those acts or omissions. 33 U.S.C. S 2703(a)(3).
Once the responsible party establishes these three factors, the
third party who caused the spill officially becomes a "respon-
sible party," and the owner/operator no longer bears any lia-
bility for the spill. 33 U.S.C. S 2702(d)(1)(A). See also
Reliance Ins. Co. v. United States, 677 F.2d 844 (Ct. Cl.
1982); Cities Service Pipe Line Co. v. United States, 4 Cl. Ct.
207 (1983) (interpreting "sole cause" requirement in OPA
predecessor statute).

Unocal argues that it cannot be held liable for failing to
contain the oil spill because the OPA draws a distinction
between antecedent causes of an oil spill and acts taken to
contain the spill once it has begun. According to Unocal, if an
owner/operator establishes that a third party is responsible for
causing a spill in the first instance, then the owner/operator
cannot be held liable for any of the damage caused by the
spill, even if the owner/operator is negligent in its efforts to
contain or clean the discharged oil. This proposition finds no
support in either the language or the policy of the OPA.

The OPA does not contain any explicit temporal definition
of "cause" which distinguishes antecedent causes of a spill
from the failure to contain a spill once it occurs. Unocal, how-
ever, points out that the OPA defines "removal costs" by ref-
erence to the Federal Water Pollution Control Act
("FWPCA"), 33 U.S.C. S 1321(c). Section 1321(c)(4) of the
FWPCA states that persons other than "responsible parties"
are not liable for costs or damages incurred in the course of
rendering care or assistance in a spill situation, as long as they
act in a manner consistent with the National Contingency
Plan. Unocal argues that this provision of the FWPCA pro-
tects it from liability for any negligence in the wake of the
spill. We disagree.

[2] Under the OPA, Unocal, as a pipeline owner/operator,
is a "responsible party," and therefore is not relieved of its

                               9574
 

obligations by the insulating provisions of section 1321(c).
See 33 U.S.C. S 2701(32). Unocal argues that it was replaced
as the responsible party by Metrolink as soon as the spill
occurred, and was therefore relieved of that status for the pur-
poses of cleanup. Accordingly, Unocal asserts, as a non-
responsible party, it deserves the protection of section
1321(c). This argument is circular: Unocal is attempting to
argue that it is not a "responsible party" for the purposes of
cleanup merely by stating that its responsibilities ended when
the spill first occurred. Unocal's only support for this proposi-
tion is section 1321(c), the very provision which it purports
to interpret. We cannot credit such reasoning. According to
our reading of the statute, Unocal remained a "responsible
party" throughout the period of the spill and attempted con-
tainment. The OPA does not support the contrary conclusion.

Moreover, even if Unocal is correct that its "responsible
party" status ended as soon as the spill began, Unocal still
falls outside the ambit of section 1321. That provision explic-
itly states that "[n]othing in this subsection affects . . . (A) the
obligation of an owner or operator to respond immediately to
a discharge, . . . or (B) the liability of a responsible party
under the Oil Pollution Act of 1990." 33 U.S.C.S 1321(c)(5)
(emphasis added). Therefore, even assuming that the owner/
operator of the pipeline is no longer a "responsible party"
under the OPA once the spill has begun, it remains obligated
to respond to the discharge.

Finally, Unocal's argument that it should be relieved of
responsibility for containment flies in the face of the goals of
the OPA. "The purpose of OPA, as well as other remedial leg-
islation passed by Congress and the states to address environ-
mental disasters such as oil spills, was to encourage rapid
private party responses." MetLife Capital Corp. v. M/V
EMILY S., 132 F.3d 818, 822 (1st Cir. 1997) (quoting In re
Jahre Spray II K/S, 1996 WL 451315, *4 (D.N.J. 1996)).
Unocal's theory essentially excuses owners and operators of
oil pipelines and other vessels from participating in the

                               9575
 

cleanup of spills of their own oil, and exempts from liability
those owner/operators who are foolish enough to join the
cleanup efforts. We reject Unocal's argument.

[3] In conclusion, Unocal was not relieved of its duties
immediately upon the occurrence of the spill. Rather, Unocal
bore the burden at trial of establishing the three elements
described above. Specifically, in order to establish
Metrolink's liability, Unocal was required to show that
Metrolink or other third parties were the sole cause of the spill
and its consequences, that Unocal exercised due care (prior to
the spill and during its containment), and that Unocal took
necessary precautions to prevent foreseeable harm. The jury
in this case found that Unocal had proven each of these
requirements. As we explain below, we conclude that Unocal
presented substantial evidence at trial to meet these burdens,
and that the jury's verdict should stand.

B. Unocal's Purported Negligence

Metrolink argues that Unocal failed to establish at trial that
Metrolink and K&K were not the sole causes of the oil spill,
that Unocal exercised due care, or that Unocal took necessary
precautions to avoid the spill and its consequences. Specifi-
cally, Metrolink points out five ways in which Unocal alleg-
edly helped to cause the spill and failed to exercise due care.
We address each of these points separately.

      1. Failure to Foresee the Possibility of a Rupture

First, Metrolink asserts that Unocal's actions prior to Feb-
ruary 20 played a causal role in creating the spill. In its briefs
before this court, Metrolink implies that Unocal's lineriders,
Voigt and Alvarez, misled K&K regarding the depth of the
pipeline. Had Voigt and Alvarez taken exact measurements of
the pipeline's depth, or had they not made any representations
at all about the depth, Metrolink argues, the spill might have
been avoided.

                               9576
 

[4] This argument ignores the fact that Unocal's affirmative
legal obligation was not to measure the depth of the pipeline.
See CAL. GOV'T CODE S 4216 et seq.Under California law, the
party that is planning to excavate, grade or scrape a piece of
land--K&K in this case--has the duty of determining the
"exact location" of the pipeline in the ground. CAL. GOV'T
CODE S 4216.4. Therefore, Metrolink's attempt to blame Uno-
cal for failing to determine the exact depth of the pipeline
prior to the spill is misplaced.

[5] Moreover, Metrolink and K&K never informed Unocal
that they planned to excavate in the area of the storm drain or
the area where the rupture occurred. The jury could have rea-
sonably concluded that Unocal could not foresee that any
excavation would occur in that area. Therefore, even if Uno-
cal should have measured the depth of the pipeline at various
points, it would have had no particular reason to measure the
depth in the area surrounding the storm drain, where Beltran's
Caterpillar punctured the pipe.

Metrolink next argues that, even if Unocal was not legally
responsible for determining the depth of the pipeline, Uno-
cal's lineriders misled K&K about its depth prior to the spill.
Metrolink relies on the testimony of Emery Brown to estab-
lish that Voigt and Alvarez misled K&K to believe that the
pipeline was located deeper in the ground than it actually was.
According to Brown, Alvarez used a machine to measure the
depth of the pipeline and reported to him that the pipeline was
located at least three feet under the ground. Alvarez, however,
testified that he did not know the depth of the pipeline. Voigt
also testified at trial that he knew nothing about the depth of
the pipeline, other than the depth around the storm drain, and
that he gave no additional information to Brown or any other
contractor. Interpreting this conflicting testimony in the light
most favorable to Unocal, we will not disturb the jury's find-
ing that Unocal played no role in causing the spill.

                               9577
 

      2. Debriefing upon Unocal's Arrival at the Site

Metrolink next argues that the failure of Unocal employees
to obtain a full briefing upon their arrival at the site consti-
tuted a lack of due care, and that this failure led inevitably to
the escape of oil into the waterways.

As noted above, the first Unocal representatives on the
scene were Hugh Craddock, Paul Bauer and Lamar White.
Metrolink points out that, while Bauer and Craddock were
briefed by fire department personnel at the scene, they never
inquired about the existence of a storm drain inlet. Further, no
members of the Unocal team contacted Voigt or Alvarez, both
of whom were familiar with the site, the pipeline, and the
storm drain. As a result of this failure to receive a full brief-
ing, Metrolink argues, the Unocal team remained uninformed
about the existence and location of the storm drain and the
drain inlet for several crucial hours.

[6] We do not find this argument convincing. Upon his
arrival at the scene an hour after the spill, Craddock was told
by fire department officials that the oil had been fully con-
tained. Chief Ashby, the fire department's incident com-
mander, had no reason to suspect that any oil had entered the
drain, so he did not raise the issue during this initial briefing.
Nor is Chief Ashby's ignorance surprising, because K&K
employees had incorrectly informed the fire department about
40 minutes earlier that no oil had entered the inlet. By the
time Craddock and Bauer arrived at the scene, the inlet was
covered by the earthen berm, so the Unocal employees did not
notice it and had no obvious reason to ask about it.

[7] While the initial briefing might have been more
detailed, the blame should not necessarily fall on Unocal's
shoulders. The jury concluded that it should not, and that ver-
dict is supported by the evidence.

                               9578
 

      3. Assessment and Inspection of the Site

Metrolink next argues that Unocal was negligent in its ini-
tial assessment and inspection of the spill site. According to
Craddock's testimony, the initial assessment of a spill site
should include investigation of potential outflows and escap-
ing pollutants. Ensuring containment of the oil at the Norwalk
site was the responsibility of the incident commander, a posi-
tion occupied at times by both Craddock and Lamar White.
Metrolink argues that Craddock failed to fully inspect the site,
and that if he had properly assessed the situation upon his
arrival, he would have immediately inspected the storm drain.
If Craddock had inspected the storm drain, he would have dis-
covered that spilled oil had penetrated the drain, and Unocal
would have placed booms at the drain outflow to prevent the
contamination of the surrounding waterways. However, nei-
ther Craddock nor any other Unocal officials inspected the
drain or sent any lineriders to investigate the waterways for
oil during the first several hours following the spill.

Metrolink also points out that, soon after his arrival, Bauer
noticed a manhole located near the oil pool. At the time,
Bauer assumed that the manhole led to an underground storm
drain, but concluded that oil could not have reached the drain
because the manhole was located on high ground some dis-
tance from the location of the spill. Metrolink argues that
when Bauer first noticed the manhole, he should have recog-
nized the danger that oil had somehow reached the storm
drain, perhaps by seeping through the soil.

[8] With the benefit of hindsight, Metrolink is certainly cor-
rect that Unocal's agents would have been wise to inspect the
drain. However, this does not necessarily compel the conclu-
sion that Craddock and Bauer failed to exercise due care.
They performed a visual assessment of the site, noticed that
the flow of oil had almost completely ceased, and saw no ave-
nue of escape for the oil. Further, as discussed above, Crad-
dock and Bauer were informed by the fire department that the

                               9579
 

oil had been fully contained, and they could not see the now-
covered drain inlet. The jury could have concluded that, under
the circumstances, this assessment was adequate.

Metrolink argues that, once the Unocal agents recognized
the existence of a storm drain, they should have become con-
cerned that oil was seeping into the drain through the soil or
leaking through manholes. This argument is not sufficient to
overturn the jury verdict. We cannot conclude that Unocal
employees were negligent in their failure to recognize a hypo-
thetical risk that never came to fruition. Nothing in the record
indicates that the spilled oil penetrated the drain by seeping
through the soil or by infiltrating a manhole. While an incor-
rect suspicion of seepage might have led Unocal to inspect the
drain and discover the oil, we are reluctant to hold that the
failure to reach this erroneous conclusion necessarily consti-
tuted a failure to exercise due care.

Metrolink next argues that the failed containment effort can
be attributed to the negligence of Valerie Uyeda and Tom
Henning, two ERST employees at the scene. On the day of
the spill, Uyeda and Henning were dispatched to Norwalk to
provide "operations" and "environmental " assistance. After
arriving at the scene, Uyeda and Henning reported to their
supervisor that the oil had been contained. Metrolink argues
that the ERST employees should have recognized the danger
of contamination. Specifically, Metrolink points out that
ERST's Standard Operating Procedures Manual mandates
that, when performing environmental assessments, ERST per-
sonnel should obtain briefings from local operation workers
and review relevant maps and charts. Metrolink argues that
Uyeda should have--but failed to--follow the manual's pro-
cedures.

Contrary to Metrolink's assertions, however, Uyeda's
actions were not necessarily negligent. According to the testi-
mony of Tim Perkins, the leader of ERST's emergency
response strike team, neither of the two ERST employees on

                               9580
 

the scene was an "environmental person." Therefore, neither
Uyeda nor Henning was bound to follow the section of the
ERST manual on which Metrolink relies to create the stan-
dard of care. Consequently, substantial evidence supports the
jury's finding that Unocal and ERST exercised due care in
assessing the site.

      4. Consideration of Maps and Overlays

[9] Metrolink next argues that both Craddock and Voigt
negligently failed to consider the maps and as-built overlays
which they had in their possession. Additionally, Metrolink
points out, neither Craddock nor Voigt ever provided any of
their maps to the fire department personnel for their observa-
tion. Craddock himself did not review the overlay map or as-
built plans until approximately six hours after his arrival on
the scene. Metrolink asserts that, had the Unocal team consid-
ered the appropriate maps immediately upon their arrival,
they would have discovered that the oil pool was situated
directly above the storm drain, and that the storm drain led
into Coyote Creek.

Metrolink's criticism notwithstanding, the jury could rea-
sonably have concluded that Voigt and Craddock's behavior
was appropriate. Craddock testified that a D4A map typically
explains the location of a pipeline, and that he did not check
the map because he already knew where the pipeline was
located in this instance. Further, knowing the existence and
location of the storm drain would not necessarily have caused
Unocal to inspect the drain. In fact, as explained above, even
though Craddock did eventually inspect the maps at 8:00 that
evening, his new knowledge did not sound many alarms, and
no one actually checked the contents of the drain until the
next morning.

[10] Most importantly, none of the maps in Craddock's
possession at the time of the incident contained the one piece
of information that would almost surely have set off warning

                               9581
 

bells in the Unocal camp: the existence and location of the
storm drain inlet. Had the maps provided information about
the inlet, then Craddock's failure to consider them might have
been more crucial. In the absence of that information, how-
ever, the failure to inspect the maps did not necessarily cause
the expansion of the spilled oil, nor can we conclude that
Unocal failed to exercise due care.

      5. Reporting to Agencies

Finally, Metrolink argues that Unocal failed to report the
spill properly to the appropriate agencies, and that proper
reporting might have led to the early detection of oil in the
storm drain. As explained above, Orr telephoned LACFCD
approximately four hours after the spill and reported that no
waterways had been affected by the incident. During their
conversation, Orr told Charlie Sherman that the call was
merely a "courtesy." When he became concerned that the
storm drain might be damaged during excavation, Craddock
placed a second call to Charlie Sherman. Even after his con-
versation with Craddock, Sherman felt comfortable that the
spill had been contained and had no suspicion that any oil had
entered the storm drain.

Sherman testified at trial that he would have immediately
traveled to the site if he had been informed that oil had
entered the storm drain. Had he discovered oil in the drain,
Sherman would have placed booms and sandbags at the out-
flow to prevent contamination of the waterways. Metrolink
argues that Unocal's negligence in relaying information to
LACFCD caused Sherman's laxity, thereby preventing the
containment of the oil in the storm drain.

[11] We reject Metrolink's argument. At best, Unocal's
inaccurate or incomplete reporting to LACFCD was a conse-
quence of the fact that Unocal had not discovered the inlet or
considered that oil may have reached the drain. However, as
discussed above, the jury's decision that Unocal had not been

                               9582
 

negligent in its earlier ignorance was supported by substantial
evidence in the record. Orr and Craddock's calls, if anything,
establish that Unocal was diligent in pursuing the cleanup.
The jury's verdict is not undermined by this evidence.

C. Conclusion

[12] We conclude that the jury's verdict was supported by
the evidence. There is substantial evidence in the record to
show that (1) the discharge was caused solely by the acts or
omissions of Metrolink and K&K; (2) Unocal exercised due
care with respect to the pipeline; and (3) Unocal took precau-
tions against foreseeable acts or omissions of third parties and
their consequences. Accordingly, the district court's denial of
Metrolink's motion for judgment and motion for a new trial
is hereby affirmed.2

II. Unocal's Cross-Appeal

In addition to Metrolink's appeal of the jury verdict, Uno-
cal has cross-appealed to protest three of the district court's
post-trial decisions. We address these three arguments in turn.

A. Pre-judgment Interest

First, Unocal appeals the district court's award of prejudg-
_________________________________________________________________
2 In addition to finding a violation of the OPA, the jury found Metrolink
liable on common law negligence, contract and quasi-contract theories. In
this appeal, Metrolink argues that the jury's verdict on the contract and
quasi-contract theories was not supported by substantial evidence.
Metrolink also asserts that the district court erred by providing the jury
with an overly broad verdict form.

Metrolink conceded at oral argument that, if Unocal prevails under any
theory, it is entitled to the entire $4.6 million judgment. Accordingly,
because we are affirming the district court's decision on Unocal's OPA
claims, we need not reach the contract and quasi-contract issues addressed
by the parties. For the same reason, we need not address whether the
jury's finding of common law negligence was supported by the record.

                               9583
 

ment interest at a rate of 5.87%. According to Unocal, the
appropriate rate of prejudgment interest is 12%. In response,
Metrolink argues that no award of prejudgment interest was
appropriate. These arguments are most easily addressed in
reverse order.

      1. Is An Award of Pre-Judgment Interest Appropriate
      Under the OPA?

[13] Metrolink asserts that the district court had no discre-
tion to grant prejudgment interest, because the OPA does not
allow for such an award in cases like this.3 Section 2705(a)
sets forth the OPA's general rule regarding interest:

      The responsible party . . . is liable to a claimant for
      interest on the amount paid in satisfaction of a claim
      under this chapter. . . . The responsible party shall
      establish a procedure for the payment or settlement
      of claims for interim, short-term damages.

33 U.S.C. S 2705(a). By its terms, the OPA permits prejudg-
ment interest only when a "claimant" successfully pursues a
claim against a "responsible party." Metrolink argues that
Unocal has no right to such interest because it is not a "claim-
ant." On the contrary, Metrolink argues, Unocal remains a
"responsible party" in spite of the jury's verdict.

[14] Metrolink argues that, although the verdict determined
_________________________________________________________________
3 Metrolink argues that Unocal is not entitled to pre-judgment interest
only in response to Unocal's argument in its cross-appeal that it was enti-
tled to a higher pre-judgment interest rate than the 5.87% awarded by the
district court. Thus, even if Metrolink prevailed in this argument, the result
would only be to affirm the interest rate the district court awarded, not to
reverse the award of pre-judgment interest. See El Paso Natural Gas Co.
v. Neztsosie, 526 U.S. 473, 479 (1999) (party who fails to appeal issue
"may not attack the decree with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary") (internal citations
omitted).

                               9584
 

the liability of Metrolink and K&K, the OPA clearly states
that an owner or operator of a pipeline is a "responsible
party." Nothing in the statute indicates that the owner/
operator's status as a "responsible party" is somehow lifted
upon a jury's finding that it was not the cause of an oil spill.
For this reason, Unocal--along with Metrolink and K&K--
remains one of three "responsible parties" in this case.

[15] Assuming arguendo that Metrolink is correct that
Unocal's status as a "responsible party" never terminates,
Metrolink's argument still fails. Metrolink asserts that, as a
"responsible party," Unocal cannot be considered a "claim-
ant" for the purposes of the OPA's prejudgment interest pro-
vision. This assertion directly contradicts the language of the
statute itself. As defined in the OPA, the terms "responsible
party" and "claimant" are not mutually exclusive. The OPA
defines a "claimant" as someone "who presents a claim for
compensation under this subchapter." 33 U.S.C.S 2701(4).
Section 2708(a) of the OPA explicitly states that "the respon-
sible party for a vessel or facility from which oil is discharged
. . . may assert a claim for removal costs and damages" if it
establishes a complete defense to liability. 33 U.S.C.
S 2708(a). Viewing these two statutory provisions in concert,
one must conclude that a "responsible party" who has asserted
a complete defense can be considered a "claimant " under the
OPA.

[16] Therefore, Unocal may be treated as a claimant in this
case. As discussed above, Metrolink and K&K are considered
"responsible parties" under the statute. See 33 U.S.C.
S 2702(d)(1)(A). Accordingly, the district court's award of
prejudgment interest at a rate of 5.87% was proper under 33
U.S.C. S 2705(a).4 We reject Metrolink's argument to the con-
trary.5
_________________________________________________________________
4 The parties agree that 5.87% is the appropriate rate of interest under
the OPA.
5 Metrolink's reliance on National Shipping Co. of Saudi Arabia v.
Moran Mid-Atlantic Corp., 924 F.Supp. 1436 (E.D. Va. 1996), is mis-

                               9585
 

      2. Is An Award of Pre-Judgment Interest Appropriate
      Under the Contract?

Unocal argues that the district court should have approved
an award of interest at 12% rather than 5.87%, and asserts that
the failure to do so constituted an abuse of discretion.
Although Unocal agrees that prejudgment interest is available
under the OPA, Unocal argues that the court should have
awarded interest at a rate of 12% per annum pursuant to the
parties' contract.

As discussed above, the jury concluded that Metrolink
agreed on February 21, 1995, to compensate Unocal for all
expenses incurred in the cleanup effort. For the reasons
explained in Footnote 2, supra, we have declined to review
the merits of Unocal's breach of contract claim. Therefore, we
have not determined whether Unocal and Metrolink actually
entered into a legitimate contract, as alleged by Unocal.
Nonetheless, for the purposes of reviewing the district court's
prejudgment interest award, we will assume that the jury ver-
dict was correct, and that the parties entered an oral contract
in February 1995.

Unocal explains that, pursuant to the purported contract,
Unocal sent three written invoices to Metrolink during the
cleanup project. Each of these documents stated that interest
_________________________________________________________________
placed. In National Shipping, the plaintiff's boat collided with the defen-
dant's, causing an oil spill. After the cleanup, the plaintiff, a responsible
party under the OPA, sued the defendant for contribution. The district
court concluded that the defendant was not a "responsible party" under the
OPA because it had been acting under a contractual relationship with the
plaintiff. Id. at 1446 n.4. As noted above, prejudgment interest is only
appropriate under the OPA in claims against "responsible parties." 33
U.S.C. S 2705(a). Because the defendant was not a "responsible party,"
the district court denied the plaintiff's request for prejudgment interest. Id.
at 1454. In this case, in contrast, the jury found that Metrolink and K&K
were responsible parties under the OPA. Therefore, National Shipping is
inapposite, and an award of prejudgment interest is appropriate here.

                               9586
 

would be charged at a rate of 1% per month if the debt was
not paid within 30 days. Unocal argues that this contractual
rate of interest should bind the parties, and that the district
court abused its discretion by failing to award interest at a rate
of 12%.

Unocal relies on section 3287 of the California Civil Code.
Section 3287 provides for an award of prejudgment interest
whenever a plaintiff prevails in a breach of contract claim for
an amount of damages that is certain or is capable of being
made certain by calculation. The legal rate of interest is ten
percent, CAL. CIV. CODE S 3289(b), but Unocal does not
request ten percent interest in this appeal. Rather, Unocal
points out that, where the rate of interest is stipulated by con-
tract, that rate shall apply. See CAL. CIV. CODE S 3289(a).
Because the invoices sent by Unocal to Metrolink indicated
an interest rate of 12%, Unocal argues that that rate should
apply.

Unocal relies on United States ex rel. Industrial Lumber
Co. v. F. D. Rich Co., 473 F.2d 720 (9th Cir. 1973), to support
its argument. In F.D. Rich, the parties entered a contract for
millwork and plywood. Id. at 722. Along with the shipments
of goods, the supplier sent invoices to the buyer, each of
which indicated that an annual interest rate of 8% would be
applied on late payments. Id. When the buyer refused to pay
for the goods, the district court granted judgment for the sup-
plier on the breach of contract claim and awarded prejudg-
ment interest at a rate of 7% per year. Id. at 723. On appeal,
the Ninth Circuit reversed the interest award, holding that,
under section 3289, the supplier should have received the 8%
that was due under the terms of the invoices. Id. at 726.

Unocal argues that F.D. Rich is binding in this case, and
that a 12% interest rate is therefore appropriate. We disagree.
In F.D. Rich, the parties had a seven-year history of business
relations, and the court noted that all of the supplier's invoices
in the record provided for the same rate of interest. 473 F.2d

                               9587
 

at 722. Although the F.D. Rich court addressed the issue only
summarily, the court's discussion appears to imply that the
rate on the invoices was a figure voluntarily agreed upon by
the parties. Here, in contrast, nothing in the record indicates
that the parties agreed to a 12% interest rate. Rather, Unocal
appears to have arrived at the 12% figure unilaterally.
Accordingly, F.D. Rich does not apply.

[17] We see no reason to apply section 3289(a) in this case.
Section 3289(a), by its terms, applies when two parties have
agreed to a given interest rate. The evidence does not support
such an inference here. Instead, it appears that Unocal unilat-
erally chose the 12% rate which appears in the invoices. It
would be patently inequitable to bind Metrolink to the 12%
rate, which, by all indications, was not stipulated by both par-
ties. Such an award seems to fall outside the scope of section
3289(a). Therefore, we affirm the district court's award of
interest at a rate of 5.87%.

B. Attorney's Fees

[18] Unocal next argues that the district court improperly
denied its request for attorney's fees. Generally, a prevailing
party may not recover fees after judgment in the absence of
some affirmative authorization. See Stanton Road Assocs. v.
Lohrey Enter., 984 F.2d 1015, 1018 (9th Cir. 1993); CAL. CIV.
PROC. CODE S 1021. Unocal posits three arguments to support
its position that the general rule should not apply in this case.
None of Unocal's arguments succeed. Accordingly, we affirm
the district court's order denying Unocal's application for
attorney's fees.

      1. Fees under the OPA

First, Unocal argues that the district court should have
awarded attorney's fees pursuant to the OPA. This court
reviews the district court's interpretations of federal and state

                               9588
 

statutes de novo. See Alexander v. Glickman, 139 F.3d 733,
735 (9th Cir. 1998). The statute provides:

      At the request of the Secretary, the Attorney General
      shall commence an action on behalf of the Fund to
      recover any compensation paid by the Fund to any
      claimant pursuant to this chapter, and all costs
      incurred by the Fund by reason of the claim, includ-
      ing . . . attorney's fees.

33 U.S.C. S 2715(c).

A recent Ninth Circuit decision addressed this provision,
and its discussion is useful in resolving the present case. See
United States v. Hyundai Merchant Marine Co., 172 F.3d
1187 (9th Cir. 1999). In Hyundai, the United States govern-
ment sued a responsible party for costs incurred by the Coast
Guard in monitoring the cleanup of an oil spill. 172 F.3d at
1189. The Ninth Circuit approved an award of fees to the gov-
ernment at the close of the case, reasoning that section 2715's
attorney's fees provision applies equally to suits on behalf of
the Fund and suits on behalf of other branches of the federal
government. Id. at 1192-9. The court concluded that, because
the government's recovery would be paid into the Fund, a
denial of attorney's fees to the Coast Guard would defeat the
purpose of the OPA. Id.

Unocal attempts to extend this reasoning one step further,
arguing that, as a vindicated owner/operator, it, too, is subro-
gated to the rights which the Fund might have asserted had it
filed the claim. Unocal points to 33 U.S.C. S 2702(d)(1)(B),
which states that a responsible party who pays for removal
costs after a spill and later alleges that the spill was caused by
an unrelated third party "shall be entitled by subrogation to all
rights of the United States Government and the claimant to
recover removal costs or damages from the third party or the
Fund."

                               9589
 

[19] Unocal argues that this provision grants to the "re-
sponsible party" all the rights of the federal government in a
suit under the OPA, including the right to fees discussed in
Hyundai. However, this argument contradicts the plain lan-
guage of section 2702(d), which provides for subrogation
only to the government's right to recover removal costs or
damages from a third party. In other words, section 2702(d)
permits owner/operators such as Unocal to sue for damages in
the stead of the U.S. government, but does not necessarily
give to the responsible party the benefit of all the rights held
by the federal government. Accordingly, Unocal cannot
recover fees in the stead of the federal government.

The OPA specifically permits fee awards for the govern-
ment, not for private parties. Unocal's interpretation of the
statute skews that provision to require an award of fees in
every suit by a responsible party against a third party. In the
absence of congressional or contractual authority, the court
cannot award fees to a prevailing party. See Stanton Road,
984 F.2d at 1018. The district court properly denied Unocal's
fee request under the OPA.

      2. Fees Under the "Tort of Another" Doctrine

[20] Unocal next asserts that the district court should have
awarded fees pursuant to California's "tort of another doc-
trine," codified at California Code of Civil Procedure section
1021.6. Section 1021.6 permits a court to award attorney's
fees to the prevailing party in an action for implied indemnity
if the court finds, among other things, that "the indemnitee
through the tort of the indemnitor has been required to act in
the protection of the indemnitee's interest by bringing an
action against or defending an action by a third person." Uno-
cal argues that it deserves fees under this provision because
it was forced to incur the costs of rendering a defense under
the OPA, when the true tortfeasor in the case was Metrolink.

[21] The district court properly rejected Unocal's argument,
noting that section 1021.6 applies only where the prevailing

                               9590
 

party has been required to bring or defend an action against
a third person. See Wilson, McCall & Daoro v. American
Qualified Plans, Inc., 70 Cal. App. 4th 1030, 1037 (1999). In
this case, Unocal neither brought nor defended any action
against any third party prior to filing this suit. Therefore, the
"tort of another" doctrine simply does not apply.

In this appeal, Unocal relies on the subrogation provision
of 33 U.S.C. S 2715(a). That section provides that a party who
pays a "claimant" for removal costs or damages shall be sub-
rogated to the rights and claims of that claimant. Unocal
argues that, under section 2715, it has stepped into the shoes
of the vendors whom it paid to perform the cleanup. Because
Unocal has taken the place of the vendors in this suit, it
argues that this suit is "akin" to a hypothetical action in which
the vendor/claimants sue Unocal, and Unocal, in turn, sues
Metrolink for indemnity. Under this line of reasoning, the
instant action may be viewed as an indemnity suit in which
Unocal, an innocent party, is suing Metrolink to indemnify it
against the hypothetical claims of the vendors.

Unocal's attempts to extend section 1021.6 are unavailing.
Section 2715(a) does not transform this action into a three-
way suit with an invisible third party. This action is one for
damages between two parties. As the district court explained,
Unocal did not sue a third party and did not defend any third
party suit. We decline Unocal's invitation to concoct a
"ghost" party in order to fit this case within the "tort of anoth-
er" doctrine. To apply the doctrine in this case would extend
the California statute far beyond its mandate. Accordingly, we
conclude that the district court did not abuse its discretion in
declining to award fees under section 1021.6.

      3. Fees Under "Private Attorney General " Doctrine

[22] Finally, Unocal argues that attorney's fees are appro-
priate under California's "private attorney general" doctrine.
This doctrine, codified at California Code of Civil Procedure

                               9591
 

section 1021.5, authorizes the award of attorney's fees to a
party who has successfully prosecuted an action which has
"resulted in the enforcement of an important right affecting
the public interest." CAL. CIV. PROC. CODES 1021.5. Such an
award is appropriate if three requirements are met: (1) "a sig-
nificant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons,"
(2) "the necessity and financial burden of private enforce-
ment, or of enforcement by one public entity against another
public entity, are such as to make the award appropriate," and
(3) "such fees should not in the interest of justice be paid out
of the recovery, if any." Id.

[23] The purpose of the "private attorney general" doctrine
is to encourage suits of societal importance which private par-
ties would not otherwise have an incentive to pursue. See
Advanced Micro Devices, Inc. v. National Semiconductor
Corp., 38 F.Supp.2d 802, 815 (N.D. Cal. 1999). Section
1021.5 was not designed "as a method for rewarding litigants
motivated by their own pecuniary interests who only coinci-
dentally protect the public interest." Id.  Therefore, in deter-
mining whether to exercise its discretion to award fees under
the doctrine, the district court must consider whether the
plaintiff's own interests are sufficient to motivate such a suit,
or whether plaintiffs in actions of this kind require the addi-
tional carrot of shifted fees to ensure that the public interest
will be vindicated. See Galante Vineyards v. Monterey Penin-
sula Water Management Dist., 60 Cal. App. 4th 1109, 1127-
28 (1997).

[24] In this case, the balance is straightforward, and the dis-
trict court properly considered the parties' interests. Despite
Unocal's protestations to the contrary, the purpose of this law-
suit was not to protect the public from future environmental
disasters. Rather, the goal of Unocal's suit was merely to shift
the burden of paying for the cleanup from Unocal to
Metrolink. Unocal was not acting as a private attorney general

                               9592
 

in this case, and the district court did not abuse its discretion
in denying fees on this ground.

C. Declaratory Judgment

Finally, Unocal argues that the district court should have
issued a declaratory judgment declaring that (1) Metrolink
and K&K are the responsible parties for the purposes of future
litigation, and (2) Metrolink and K&K should be substituted
for Unocal on the hazardous waste manifests for the disposal
of wastes and materials generated by this incident. The district
court denied Unocal's request by written order on November
6, 1998. Because the district court's failure to issue a declara-
tory judgment turned on a question of statutory interpretation,
this court reviews it de novo. See Alexander, 139 F.3d at 735.

Unocal bases its request on the OPA provision found at 33
U.S.C. S 2717(f)(2). That section provides:

      In any . . . action [for the recovery of removal costs]
      described in this subsection, the court shall enter a
      declaratory judgment on liability for removal costs
      or damages that will be binding on any subsequent
      action or actions to recover further removal costs or
      damages.

33 U.S.C. S 2717(f)(2). We hold that the OPA required the
district court to issue a declaration in this case. The statute is
clear in its mandate. The question that we must address is pre-
cisely what the district court should have declared.

      1. "Responsible Party"

First, Unocal requested that the district court issue a decla-
ration stating that Metrolink and K&K are "the responsible
parties" for the purposes of future litigation. Unocal points out
that the jury found Metrolink and K&K to be the sole causes
of the spill, and, according to section 2702(d)(1)(A), those

                               9593
 

parties must therefore be treated as "the responsible parties"
for the purposes of determining liability. On October 5, 1998,
Unocal requested that the district court issue a declaration to
that effect.

The district court rejected Unocal's request because, in its
view, section 2717(f)(2) does not relieve a pipeline owner/
operator of any and all potential future liability related to the
spill. The court expressed concern that a broad declaration
such as the one requested by Unocal would unjustly insulate
Unocal from liability stemming from claims that it negligently
cleaned up the discharged oil.

[25] The district court's concern is a valid one. Section
2717(f)(2) only requires the court to issue a declaration of lia-
bility for removal costs or damages. The declaration need not
act as a prophylactic measure preventing any future suits
against Unocal for any act relating to the spill. Rather, the
declaration must state only what the statute commands: that
Metrolink and K&K, not Unocal or ERST, are liable for
removal costs and damages caused by the spill. The district
court's decision not to grant Unocal's requested declaration
was proper.

      2. Substitution of Names in Waste Manifests 

[26] Second, Unocal requested a declaration that Metrolink
and K&K should be substituted for Unocal on the hazardous
waste manifests for disposal of waste materials generated by
the spill. Under California and federal law, every party
involved in the generation, transportation or disposal of waste
must complete a "manifest." CAL. HEALTH & SAFETY CODE
S 25160; 42 U.S.C. S 6922(a)(5). Among those required to
complete manifests are "generators" of hazardous waste,
defined in federal regulations as any person "whose act or
process produces hazardous waste . . . or whose act first
causes a hazardous waste to become subject to regulation." 40
C.F.R. S 260.10.

                               9594
 

It appears that Unocal completed and filed a number of
manifests to record the cleanup and transportation of spilled
oil in the wake of the 1995 incident. Unocal now requests that
its name be replaced on each of those manifests with the
names of Metrolink and K&K. We reject Unocal's request for
two reasons. First, Unocal has provided no support for the
premise that it should no longer be considered a "generator"
of waste as a result of the jury verdict. Second, Unocal's
requested declaration is far afield from the declaration
required by section 2717(f)(2), which addresses only liability
for cleanup costs and damages. The OPA says nothing about
"generators" of waste or the completion of manifests. Neither
the statute nor the jury verdict supports Unocal's request.
Therefore, we decline to reverse the district court on this
question.

      3. Conclusion

As discussed above, the district court should have issued a
declaration upon request stating that Metrolink and K&K
were liable for costs and damages caused by the spill. How-
ever, the district court did not err in rejecting Unocal's argu-
ments detailed above. We now remand to the district court to
issue an appropriate declaration within the mandate of 33
U.S.C. S 2717(f)(2).

AFFIRMED IN PART AND REMANDED

                               9595