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Ward v. Coleman

Citation: 9 ELR 20331
No. No. 77-1952, 598 F.2d 1187/13 ERC 1213/(10th Cir., 05/10/1979) Rev'd

The Tenth Circuit reverses a district court's denial, 7 ELR 20134, of plaintiff's challenge to the use of its notification to the Coast Guard of an oil spill as the basis for subsequent assessment of a civil penalty under § 1321(b)(6) of the Federal Water Pollution Control Act. The statutory language and the administrative enforcement mechanism indicate that the intent of § 1321(b)(6) is primarily punitive in nature. This view is corroborated by the fact that the factors used in determining the amount of a penalty, such as the gravity of the violation, the degree of culpability, and the prior record of the spiller, are based on retributive considerations and do not reasonably relate to a remedial or compensatory purpose or give consideration to the extent of damage to the environment. Thus, because notification of discharge is clearly compelled by § 1321(b)(5), the use of such notification in determining either liability for or the amount of civil penalties imposed under § 1321(b)(6) violates the Fifth Amendment privilege against self-incrimination. The court does not, however, strike down the self-reporting requirements of § 1321(b)(5) or the civil penalty provisions of § 1321(b)(6), providing that the evidence used to establish the discharge is derived from sources independent of the disclosure compelled by § 1321(b)(5). The Tenth Circuit rules that the district court correctly refused, 6 ELR 20722, to convene a three-judge district court under 28 U.S.C. § 2282.

Counsel for Plaintiffs
Stephen Jones, David Butler
Jones & Gungoll
P.O. Box 3339, Enid OK 73701
(405) 233-4321

Counsel for Defendants
Michael McCord; Sanford Sagalkin, Deputy Ass't Attorney General; Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Larry D. Patton, U.S. Attorney; Richard Campbell, Ass't U.S. Attorney
4434 U.S. Courthouse, Oklahoma City OK 73102
(405) 236-2623

Counsel for Amicus Curiae Mountain States Legal Foundation, et al.
Kea Bardeen, James G. Watt
Mountain States Legal Foundation
1845 Sherman St., Denver CO 80203
(303) 861-0244

Harold B. Scoggins, Jr., General Counsel
Independent Petroleum Ass'n of America
1101 16th St. NW, Washington DC 20005
(202) 466-8240

Joined by Holloway and McKay, J.J.