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United States v. Eureka Pipeline Co.

Citation: 6 ELR 20088
No. No. 74-7-P, 401 F. Supp. 934/(N.D. W. Va., 11/17/1975)

The government sues to collect $9,900 in civil damages for 19 admitted oil discharges in violation of § 311 of the 1972 Federal Water Pollution Control Act Amendments, 33 U.S.C. § 1321(b)(3), ELR 41116. Having promptly reported all said violations to authorities as required by § 311(b)(5), 33 U.S.C. § 1321(b)(5), ELR 41116, defendant now resists payment on the ground that the civil damage provision, § 311(b)(6), is unconstitutional. He first argues that the damage provision, though labeled civil, is in reality penal, and that thus the reporting requirement violates his privilege against self incrimination under the Fifth Amendment. While the legislative history of the 1972 amendments is not conclusive, Congress' deletion of a prior scienter requirement and its reduction of the maximum assessable penalty from $10,000 to $5,000 suggest an intent to create a civil penalty. The civil nature of the penalty is also indicated by its characterization, its lack of scienter, the modest size of the penalties assessed herein, and the use of proceeds to compensate for defendant's tortious injury to the environment. United States v. W.B. Enterprises, Inc., 378 F. Supp. 420 (S.D.N.Y. 1974). The court distinguishes United States v. LeBoeuf Bros. Towing Co., Inc., 377 F. Supp. 558 (E.D. La. 1974), for it involved the predecessor provision, 33 U.S.C. § 1161(b)(5) (1970), which contained a scienter provision and authorized higher penalties.

Defendant also asserts that the statute violates equal protection inasmuch as it requires the size of penalty to be based in part on the financial ability to pay of the offending party.Such difference in treatment has a rational basis and therefore does not violate the equal protection principle contained in the due process clause of the Fifth Amendment. Nor is there any merit to defendant's argument that the penalty section violates procedural due process by failing to allow any defenses.

Finally, the court must also reject the claim that the definition of "harmful quantities" under the statute, contained in 40 C.F.R. § 110.3(b), is arbitrary or capricious or outside the authority delegated to the President.

Summary judgment is granted to plaintiff.

Full text of this opinion is available from ELR (16 pp. $2.00, ELR Order No. C-1008).

Counsel for Plaintiff
William L. Want
Pollution Control Section
Department of Justice
Washington, D.C. 20530
(202) 739-5220

Counsel for Defendant
John R. Morris
Eureka Pipeline Co.
P.O. Box 121
Parkersburg, W. Va. 26101
(304) 485-5548

Maxwell, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]