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Ward v. Coleman

ELR Citation: 7 ELR 20134
Nos. No. CIV-76-0303-E, 423 F. Supp. 1352/9 ERC 1945/(W.D. Okla., 12/22/1976) Defendant's motion for summary judgment denied

The court denies an oil spiller's motion for summary judgment in a suit challenging the validity of a $500 civil penalty assessed under §311(b)(6) of the Federal Water Pollution Control Act Amendments of 1972. Ward's attempt to raise constitutional objections to the civil penalty device by claiming that the self-reporting requirement in §311(b)(5) violates the Fifth Amendment privilege against self-incrimination must fail. The statutory structure and language unambiguously indicate a congressional intent to provide for imposition of civil rather than criminal penalties in §311(b)(6). Moreover, the restraint imposed by administrative assessment of such a monetary penalty is civil rather than criminal in nature, and the purpose of the sanction is remedial and compensatory rather than punitive. Deterrence is an unavoidable byproduct of this primary purpose. Nor does the strict liability imposed by §311(b)(6) violate due process, given the requirements for notice and hearing, and the provisions for consideration of the spiller's ability to pay and the gravity of the violation in setting the amount of the penalty. The court also upholds the use of the "sheen test" for determining whether a harmful quantity of oil has been spilled in a particular instance.

For the court's earlier opinion denying a motion to convene a three-judge panel on the constitutionality question, see 6 ELR 20722.

Counsel for Plaintiff
Stephen Jones
James H. Gungoll
Jones & Gungoll
P.O. Box 3339
Enid OK 73701
(405) 233-4321

Counsel for Defendants
David L. Russell, U.S. Attorney
Richard Campbell, Asst. U.S. Attorney
4434 U.S. Courthouse
Oklahoma City OK 73102
(405) 236-2623

Bruce J. Chasan
Earl Salo
Pollution Control Section
Department of Justice
Washington DC 20530
(202) 737-8200

Counsel for Amicus Curiae Independent Petroleum Ass'n of America
Harold B. Scoggins Jr., General Counsel
Independent Petroleum Ass'n of America
1101 16th St., NW
Washington DC 20036
(202) 466-8240