In 1970, Congress amended the Federal Water Pollution Control Act (FWPCA) to establish an innovative and comprehensive statutory framework designed to prevent and remedy spills of oil and hazardous substances into the nation's waters.¹ For the first time, the owner or operator of a discharging facility was required to notify the government of any inadvertent discharge² and automatically became subject to a monetary penalty.³ The validity of this scheme has been challenged almost constantly since its inception.⁴ Contending that the mandatory penalty is criminal in nature despite its statutory label, defendants have argued that its assessment on the basis of information gathered through compulsory self-reporting is barred by both the Fifth Amendment and the FWPCA use-immunity provision.⁵

In May 1979, the Tenth Circuit Court of Appeals became the first appellate court to side with a defendant challenging the penalty on these grounds. The court ruled in Ward v. Coleman⁶ that the mandatory penalty provision in §311(b)(6)(A) of the FWPCA is criminal rather than civil and thus its imposition upon an individual⁷ on the basis of compelled self-reporting runs afoul of Fifth Amendment guarantees. The Supreme Court, doubtless agreeing to review Ward because it contradicted the findings of four appellate⁸ and several district courts,⁹ reversed the Tenth Circuit.¹⁰ Declining to follow the arduous constitutional analysis employed by the lower courts, the majority relied heavily on the congressional characterization of the penalty as "civil" to support its conclusion that the assessment was validly imposed pursuant to self-reported information. The High Court's ruling thus removes what had become a potentially troublesome cloud over §311 of the Act.