The Federal Water Pollution Control Act's (FWPCA's) provisions requiring self-reporting¹ of oil spills followed by the mandatory imposition of "civil" penalties² have long been the subject of controversy. Oil spillers have consistently, but rarely successfully, argued that the mandatory civil penalty is actually criminal in nature and the assessing this fine on the basis of information contained in or derived from the required notification is barred by both the Fifth Amendment prohibitions against compulsory self-incrimination³ and the FWPCA's provisions providing use immunity.⁴

The Tenth Circuit Court of Appeals recently rekindled the controversy by becoming the first federal appellate court to accept this reasoning. Ruling in Ward v. Coleman⁵ that the statutory penalty is in fact criminal in nature and thus subject to the Fifth Amendment, the court parted company with four appellate⁶ and a substantial number of district courts⁷ which have upheld Congress' characterization of the penalty as civil. Although this divergence may result in part from the unusual fact that the defendant in Ward was an individual rather than a corporation, the court clearly skirted many compelling arguments for upholding the penalty's civil classification and failed to consider seriously the well-reasoned case law favoring a different result.