Supreme Court Settles Circuit Split, Validates Oil Spill Penalties Based on Self-Notification

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.

Background

Statutory Framework

Section 311 of the FWPCA was designed to prevent spills of oil and hazardous substances into navigable waters and to promote their detection and rapid cleanup. A critical element of the statutory scheme is the self-reporting requirement in § 311(b)(5), pursuant to which an owner or operator of a facility from which oil has spilled must report it to the Environmental Protection Agency (EPA) immediately; failure to do so may incur criminal liability.¹¹ Upon learning of a discharge, the government must immediately initiate cleanup activities unless the discharger has already done so.¹² Although § 311(f) requires the owner or operator of the discharging vessel to reimburse the government for such expenditures,¹³ several factors may impede full recovery of costs. First, a ceiling is placed on cleanup cost liability, although the ceiling is waived if the government can demonstrate that the spill resulted from willful negligence or misconduct within the knowledge of the owner.¹⁴ Second, the difficulty of tracing [10 ELR 10149] unreported spills makes it impossible to locate the responsible party in every case. Third, the statute sets out four defenses to liability.¹⁵

Congress also imposed a mandatory penalty of up to $5,000 on all dischargers of oil and hazardous substances;¹⁶ monies collected are deposited in a revolving fund¹⁷ that is intended to remedy the shortfall in revenues collected under § 311(f). In contrast to the provision governing liability for cleanup costs, no defenses are available to payment of the § 311(b)(6)(A) penalty, which is designated as a "civil" sanction. The amount assessed may vary, however, according to the size of the business, its ability to continue in operation, and the "gravity" of the violation.¹⁸ The Coast Guard, as the agency charged with administering § 311(b)(6)(A), has interpreted the statutory criteria broadly in setting its enforcement policy. Thus, the term "gravity" has been construed to encompass bot the magnitude of the spill and the culpability of the owner or operator of the vessel or facility involved.¹⁹ Application of these criterial has led to the assessment of penalties of from $1 to $5,000.²⁰

The Ward Litigation

The defendant in Ward was penalized $500 under § 311(b)(6) for a spill that occurred in Oklahoma during March 1975. Oil stored in an open-earth pit at a drilling site he owned and operated had overflowed into a tributary of the Arkansas River. Ward immediately began cleanup operations and notified the Environmental Protection Agency of the spill pursuant to § 311(b)(5). EPA forwarded the report to the Coast Guard, which levied the penalty after providing Ward with an opportunity for a hearing. Ward refused to pay and was denied an administrative appeal.

Suits subsequently filed by both parties in district court were consolidated for trial. In response to a preliminary motion, the court rejected Ward's contention that the Coast Guard's reliance in assessing the § 311(b)(6) penalty upon the information he had been required to submit under § 311(b)(5) violated his constitutional right against self-incrimination.²¹ After trial, the court reduced the penalty to $250 because of the small amount of oil spilled and Ward's diligent cleanup efforts.²²

On appeal, the Tenth Circuit reversed²³ the district court, finding that the penalty was sufficiently punitive to trigger the Fifth Amendment protection against self-in-crimination. Focusing its inquiry on the question of "whether the legislative aim in providing the sanction was to punish the individual for engaging in the activity involved or to regulate the activity in question,"²⁴ the court examined the explicit statements of congressional purpose and the actual operation of the mechanism designed to implement it. Observing that the statute requires all owners and operators to pay cleanup costs or liquidated damages in addition to the mandatory civil penalty, the court concluded that the penalty could not accurately be characterized as compensatory. Moreover, the fact that it was to be mandatorily imposed revealed a "punitive intent" at odds with the "remedial" and thus "civil" nature of the revolving fund.

Turning to the Coast Guard's administrative enforcement mechanism, the court found an even larger gap between its allegedly remedial objectives and the method used in determining the size of the penalty. It was particularly concerned about the consideration given to culpability, noting by way of illustration that the Coast Guard criteria guiding assessment of the penalty mandate that "[s]ubstantial intentioal discharges should result in severe penalties as should cases of gross negligence and so on."²⁵ Finally, the Tenth Circuit applied tests previously enumerated by the Supreme Court for distinguishing penal from regulatory enactments²⁶ to confirm its conclusion [10 ELR 10150] that the § 311(b)(6) penalty is criminal in nature.²⁷

The Supreme Court Reverses

The Supreme Court, Justice Rehnquist writing for the majority, found it "quite clear" that Congress meant to impose a civil penalty in § 311(b)(b).²⁸ Placing particular emphasis on the juxtaposition of its "civil" label with the provision for use-immunity in "criminal cases" found in § 311(b)(5), the Court reasoned that Congress drafted the statute intending not to extend constitutional privileges accorded criminal defendants to parties fined under § 311(b)(6). This view of the measure was corroborated by its legislative history. Whereas the provision had once penalized only "knowing" violations, it was amended in 1972²⁹ to eliminate this scienter requirement, which is normally associated only with criminal penalties, and to reduce the maximum fine from $10,000 to $5,000.³⁰ These alterations implicitly evildence Congress' intent to eliminate appearances of criminality that could have been ascribed to the prior version.³¹

Considering next whether, in spite of Congress' manifest intent, the purpose or effect of the statutory scheme was inherently so punitive as to require self-incrimination protections, Justice Rehnquist observed that only the "clearest proof" would suffice to establish such a conclusion.³² Rather than following the Tenth Circuit's meticulous analysis of the criteria set out in Kennedy v. Mendoza-Martinez³³ for distinguishing civil from criminal penalties, the Court isolated the single criterion it found helpful to Ward — the fact that the behavior punished was already criminal under § 13 of the Rivers and Harbors Act of 1899.³⁴ However, the Court found this factor insufficiently conclusive to negate the clear statutory label.³⁵

Finally, the Court considered the question of whether the penalty was "quasi-criminal," that is, sufficiently penal to trigger the privilege against self-incrimination, though not other constitutional protections.³⁶ In its view, penalties that had been held in earlier decisions to fall within this category had usually involved forfeitures of property and for that reason could more readily be seen as punitive than the $250 levied against Ward.³⁷ The Court therefore upheld both the § 311(b)(6) penalty and the provision requiring self-reporting, concluding that no evidence of a strong punitive effect undermined Congress' plain intent.³⁸

[10 ELR 10151]

Dissent

In dissent, Justive Stevens approached the inquiry from a different angle, distinguishing an examination of the nature of the penalty from an assessment of the propriety of the reporting requirement. He endorsed the conclusion of the Tenth Circuit that the penalties seemed primarily calculated to "exact retribution" rather than reimburse the government for costs incurred in cleaning up oil spills. Justice Stevens adduced two grounds for his decision. First, the government is already compensated under a separate section of the FWPCA for expenses incurred in cleaning up spills.³⁹ Second, the penalty's retributive character is revealed by the fact that a penalty may be increased upon a finding of culpability yet may not be reduced if a party has shown good faith through its cleanup efforts.

In the second portion of the dissent, Justice Stevens examined the propriety of the imposition of the penalty on the basis of information mandatorily provided by defendants. Applying a two-part test to gauge the constitutionality of the reporting requirement,⁴⁰ he concluded that since a criminal penalty is automatically imposed upon every self-reported discharger, it becomes, in essence, a form of compelled self-incrimination.⁴¹ Like the Tenth Circuit, Justice Stevens would therefore have invalidated assessment of the § 311(b)(6) penalty on the basis of self-reported information but would have preserved the scheme in its other aspects.

Analysis

The distinction between civil and criminal penalties is not easily drawn. Although it would certainly be tempting to dispose of the issue by deferring to the statutory label, when constitutional rights and privileges hang in the balance it is necessary to determine whether the actual operation of the enforcement mechanism bears out Congress' overt intent. The criteria listed in Kennedy v. Mendoza-Martinez⁴² constitute the standard tests used by courts assessing the "true" nature of a penalty, though several of the criteria have justifiably been deemed "inconclusive."⁴³ The determinative factor seems to be whether the manner in which the penalty is assessed is reasonably related to a regulatory objective so that it can be validly characterized as "remedial" and "compensatory" rather than "retributive" and "punitive." If so, it will generally be deemed civil.

In Ward, the Tenth Circuit found that the § 311(b)(6) penalty serves a "remedial" purpose to the extent that funds collected from owners and operators finance cleanup activities and the administration of the water pollution control program.⁴⁴ Similarly, the concurring opinion in the Supreme Court reasoned that "the fact that collected assessments are deposited in a revolving fund used to defray the expense of cleanup operations is a strong indicator of the pervasively civil and compensatory thrust of the statutory scheme."⁴⁵ On the other hand, defendants in several lawsuits have challenged the "remedial" rationale for the penalty scheme, contending that the amount actually assessed bears little correlation to the extent of damage resulting from their particular spills.⁴⁶ Indeed, the size of the spill is only one of a number of factors the Coast Guard considers in setting the fine.

Nevertheless, the compensatory nature of the § 311(b)(6) penalty is not vitiated by the absence of a consistent relationship between the size of the penalty and the magnitude of damage done by a given spill. The provision is designed to compensate the government for costs incurred in minimizing damage resulting from the very existence of the industry iself. As the Seventh Circuit Observed in United States v. Tex-Tow, Inc., the business of producing and transporting oil is "an enterprise which will inevitably cause pollution."⁴⁷ The costs of removing it will not always be recovered under § 311(f). Some of the [10 ELR 10152] spills will remain unreported; in other instances, identified dischargers will escape liability for cleanup costs through raising a statutory defense. Rather than using general tax revenues to finance cleanup in these cases, Congress chose to place responsibility for such expenditures upon all identified polluters through assessment of the § 311(b)(6) penalty.⁴⁸ Thus, in United States v. Marathon Pipe Line Co. the Seventh Circuit found the fine "rationally related to the FWPCA's economic purpose of placing the financial burden of achieving and maintaining clean water on owners and operators of polluting facilities.⁴⁹

The fact that civil objective underlie a penalty provision does not necessarily bar a finding that it is for the most part criminal in nature. Where, for example, a measure is shown to be aimed at exacting retribution it must be treated as criminal for purposes of constitutional immunities. This was the Tenth Circuit's view of the § 311(b)(6) penalty, based on the fact that culpability is a factor used by the Coast Guard in determining the size of a particular fine. Its conclusion is subject to criticism, however, since § 311 was amended in 1972 to eliminate the preexisting culpability requirement.⁵⁰ Since under the current version of § 311 liability attaches regardless of culpability, the penalty can hardly be deemed "retributive" and thus criminal.

Another factor that might support labeling the § 311(b)(6) penalty as criminal would be a finding that it authorizes fines that are excessive in relation to its regulatory objectives. Such an analysis would require determination of a "reasonable" level of contribution to the revolving fund, a finding not easily made. On its face, the $5,000 maximum is not obviously exorbitant relative of the costs of cleaning up oil spills. Moreover, since the Act provides that lower penalties are to be imposed upon those less able to pay, it is unlikely that the penalty will be excessive in any particular case. As the district court observed in Ward,

[I]t is significant that Congress has provided that certain "mitigating" factors may be taken into account in assessing the penalty; such "flexibility" indicates the civil character of the sanction.⁵¹

In addition to its compensatory function, the § 311(b)(6) penalty serves as a deterrent to careless handling of oil and hazardous substances.⁵² Although deterrence is a traditional objective of criminal law,⁵³ such an effect is an "unavoidable by-product"⁵⁴ of civil penalties as well, and is thus not a dispositive indicator of the nature of the § 311(b)(6) sanction. Thus, the courts that have given weight to this factor in reaching a particular result might have used it just as well in support of the contrary finding.

Conclusion

The distinction between civil and criminal penalties cannot be neatly encapsulated. The line dividing remedial or compensatory sanctions from punitive or retributive measures is broad and amorphous for many purposes. Yet it must be drawn, for, as Ward illustrates, statutory and constitutional rights and privileges turn upon such labels. In Ward, the inquiry was not inordinately complex. The Tenth Circuit had strained to reach a conclusion at odds with the overwhelming weight of precedent, and the Supreme Court showed little hesitation in reversing it. In the Court's view, it was sufficient that Congress had characterized the § 311(b)(6) penalty as civil.

The Court's rather brusque disposition of Ward may also be viewed as an acknowledgement of the slight damage that would have been sustained by the § 311 mechanism had the Tenth Circuit's decision been affirmed. Since the constitutional guarantee against self-incrimination extends only to natural persons, corporate oil spillers would probably have benefited little by its application to Ward's sole proprietorship. Moreover, the imminent enactment of "superfund" legislation⁵⁵ promises to overshadow the existing law.

The § 311(b)(6) penalty, like the self-reporting requirement, is an integral component of an important regulatory mechanism that has proven its merit over the past decade. In Ward the Court essentially agreed with that assessment and removed from EPA's path an annoying, but not serious, impediment to its implementation of the Act.

1. Water Quality Improvement Act of 1970, Pub. L. 91-224, § 112, 84 Stat. 114. The statutory scheme was modified slightly by the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500, § 2, 86 Stat. 862.

2. 33 U.S.C. § 1321(b)(5), ELR STAT. & REG. 42133.

3. 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133. Section 311(b)(6) of the FWPCA was amended in 1978 to give the EPA Administrator the option of commencing a separate civil action against a discharger of hazardous substances. 92 Stat. 2467, ELR STAT. & REG. 42133. If the discharge resulted from willful negligence or misconduct, the new § 311(b)(6)(B) penalty may be as high as $250,000; otherwise the maximum penalty is $50,000. See Comment, Eleventh Hour Amendment to the FWPCA Resuscitates EPA's Hazardous Substances Discharge Regulations, 8 ELR 10299 (1978).

4. See Comment, Water Act's Oil Spill Notification Rule Survives Constitutional Challenges, 6 ELR 10011 (1976).

5. The Fifth Amendment states that "No person … shall be compelled in any criminal case to be a witness against himself…." U.S. CONST. amend. V. Section 311(b)(5) of the FWPCA, the self-reporting requirement, provides that "[n]otification received pursuant to this paragraph … shall not be used against any such person in any criminal case …." 33 U.S.C. § 1321(b)(5), ELR STAT. & REG. 42133. Since it is well settled that corporations do not have a constitutional privilege against self-incrimination, George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968), corporate defendants have relied upon the use-immunity provision in § 311(b)(5) in challenging the imposition of the § 311(b)(6) penalty on the basis of self-reported information. Courts have consistently fended off such arguments on the ground that Congress' intent was not to extend the § 311(b)(5) immunity to the § 311(b)(6) penalty. United States v. General Motors Corp., 403 F. Supp. 1151, 1160-61, 6 ELR 20248 (D. Conn, 1975); United States v. Atlantic Richfield Co., 429 F. Supp. 830, 838, 7 ELR 20635 (E.D. Pa. 1977), aff'd, 573 F.2d 1303 (3d Cir. 1978); United States v. Eureka Pipeline Co., 401 F. Supp. 934, 937, 6 ELR 20088 (N.D.W. Va. 1975).

6. 598 F.2d 1187, 9 ELR 20311 (10th Cir. 1979).

7. Ward is the only case to have arisen under § 311 in which the defendant was an individual rather than a corporation.

8. Four circuits have reached a contrary result. See United States v. Marathon Pipe Line Co., 589 F.2d 1305, 9 ELR 20004 (7th Cir. 1978); United States v. Allied Towing Corp., 578 F.2d 978, 8 ELR 20673 (4th Cir. 1978); United States v. Le Boeuf Bros. Towing Co., 537 F.2d 149, 6 ELR 20708 (5th Cir. 1976), cert. denied, 403 U.S. 987 (1977); United States v. Apex Oil Co., 530 F.2d 1291, 6 ELR 20628 (8th Cir. 1976).

9. See United States v. Atlantic Richfield Co., 429 F. Supp. 830, 7 ELR 20635 (E.D. Pa. 1977), aff'd, 573 F.2d 1303 (3d Cir. 1978); Tug Ocean Prince, Inc. v. United States, 436 F. Supp. 907 (S.D.N.Y. 1977); United States v. Eureka Pipeline Co., 401 F. Supp. 934, 6 ELR 20088 (N.D.W. Va. 1975); United States v. General Motors Corp., 403 F. Supp. 1151, 6 ELR 20248 (D. Conn. 1975).

10. United States v. Ward, 48 U.S.L.W. 4926, 10 ELR 20477 (June 27, 1980).

11. 33 U.S.C. § 1321(b)(5), ELR STAT. & REG. 42133.

12. 33 U.S.C. § 1321(c)(1), ELR STAT. & REG. 42133.

13. 33 U.S.C. § 1321(f), ELR STAT. & REG. 42134. In the event a substance is deemed "nonremovable," liquidated damages are collectable under § 1321(b)(2)(B).

14. The liability of an owner or operator of a discharging vessel is limited to $150 per gross ton or $250,000, whichever is greater, except in the case of a barge, where it is limited to the greater of $125 per gross ton or $125,000. Cleanup costs are defined to include expenses incurred in the restoration or replacement of natural resources damaged by the discharge. 33 U.S.C. § 1321(f), ELR STAT. & REG. 42134.

15. Enumerate defenses are proof that the discharge was solely the result of (a) an act of God, (b) an act of war, (c) negligence on the part of the United States government, or (d) an act or omission of another party. 33 U.S.C. § 1321(f), ELR STAT. & REG. 42134. The government may initiate actions to recover expenses from third parties shown by the owner or operator to be responsible. 33 U.S.C. § 1321(g), ELR STAT. & REG. 42134.

16. 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133.

17. 33 U.S.C. § 1321(k), ELR STAT. & REG. 42135. This provision also authorizes an annual appropriation of $35 million for the revolving fund. This sum has proven insufficient to maintain the fund, which had been depleted to $1.5 million by mid-1980. On June 25, 1980, the Senate passed an amendment to the Clean Water Act that would require the Secretary of Transportation to notify Congress when the fund falls below $12 million and seek a supplemental appropriation to bring it back to $35 million. S. 2725, 96th Cong., 2d Sess. (1980).

18. 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133.

19. United States Coast Guard Commandant Instruction 5922.11A (February 23, 1973) was promulgated to guide assessment of civil penalties under § 311(b)(6) of the FWPCA. It is reprinted as an appendix to United States v. Le Boeuf Bros. Towing Co., 377 F. Supp. 558 (E.D. La. 1974). The policy statement accompanying the Instruction indicates that "a number of considerations may be made [sic] in determining the gravity of a violation, such as the degree of culpability associated with the violation, the prior record of the responsible party, and the amount of the discharge. Substantial intentional discharges should result in severe penalties, as should cases of gross negligence and so on."

20. A penalty of $1 was levied by a district court conducting a de novo review in United States v. General Motors Corp., 403 F. Supp. 1151, 6 ELR 20248 (D. Conn. 1975). The General Motors court found the defendant completely free from material negligence or fault. 403 F. Supp. at 1152. In contrast, the Coast Guard penalized the owner of a vessel $5,000 after finding that the ship had set sail in unseaworthy condition and manned by an unlicensed crew and that the spill had been completely intentional. Puerto Rico v. S.S. Zoe Colcotroni, 456 F. Supp. 1327 (D.P.R. 1978).

21. Ward v. Coleman, 6 ELR 20722 (W.D. Okla. 1976).

22. Ward v. Coleman, 423 F. Supp. 1352, 7 ELR 20134 (W.D. Okla. 1976).

23. Ward v. Coleman, 598 F.2d 1187, 9 ELR 20331 (10th Cir. 1979).

24. Quoting from Telephone News-Systems, Inc. v. Illinois Bell Telephone Co., 220 F. Supp. 621, 630 (N.D. Ill. 1963), aff'd, 376 U.S. 782 (1964).

25. Commandant Instruction 5922.11A, cited at note 19, supra.

26. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). The standards set forth were

[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will serve the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned….

372 U.S. at 168-69 (footnotes omitted).

For a critique of the Tenth Circuit's application of the Kennedy v. Mendoza-Martinez criteria, see Comment, Tenth Circuit Bucks the Tide of Precedent in Rejecting Civil Penalty for Oil Spills Based on Self-Reporting, 9 ELR 10124 (1979).

27. Although the court did not explicitly conduct a substantive due process analysis of the § 311 enforcement mechanism, such an approach seems to underlie its criticism of the § 311(b)(6) penalty. In particular, the court observed several times that the method guiding the assessment of the penalty is not "reasonably related" to its ostensibly remedial purpose, echoing the classical substantive due process analysis set out by the Supreme Court in Nebbia v. New York, 291 U.S. 502, 537 (1937). For example, the Tenth Circuit remarked that "[w]e agree that the penalty could be regarded as … compensation to the government for tortious damage to the environment if the factors involved in determining the amount thereof reasonably related to the extent of the damage to the environment. However … the factors are not addressed to this issue." But see, e.g., United States v. Marathon Pipe Line Co., 589 F.2d 1305, 9 ELR 20004 (7th Cir. 1978); United States v. Tex-Tow, Inc. 589 F.2d 1310, 9 ELR 20006 (7th Cir. 1978); United States v. Atlantic Richfield Co., 429 F. Supp. 830, 7 ELR 20635 (E.D. Pa. 1977), aff'd, 573 F.2d 1303 (3rd Cir. 1978).

28. United States v. Ward, 48 U.S.L.W. at 4927, 10 ELR at 20479.

29. Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500, 86 Stat. 862. Although the Coast Guard revised its criteria for assessing penalties after the 1972 amendments, no alteration was made to reflect deletion of the scienter requirement. See Commandant Instruction 5922.11A, note 19, supra.

30. See note 2, supra.

31. Several other courts have arrived at similar conclusions. See United States v. General Motors Corp., 403 F. Supp. 1151, 1162, 6 ELR 20248 (D. Conn. 1975); United States v. Eureka Pipeline Co., 401 F. Supp. 934, 938, 6 ELR 20088 (N.D.W. Va. 1975). But cf. United States v. Le Boeuf Bros. Towing Co., 377 F. Supp. 558 (E.D. La. 1974), which was decided on the basis of the statutory language in effect before the 1972 amendments.

32. 48 U.S.L.W. at 4927, 10 ELR at 20479.

33. See note 26, supra.

34. 33 U.S.C. § 407, ELR STAT. & REG. 41142.

35. The court adduced two grounds for its conclusion that the fact that the behavior penalized under § 311(b)(6) is already subject to a criminal sanction does not require the conclusion that the § 311(b)(6) fine must be considered criminal. First, Congress is free to impose both a criminal and a civil sanction in respect to the same act or omission. Second, a period of seventy years intervened between the two enactments. See 48 U.S.L.W. at 4928, 10 ELR at 20480.

36. The Fifth Amendment guarantee against self-incrimination is broader than other protections afforded criminal defendants. See United States v. Regan, 232 U.S. 37, 47-48 (1914). See also Helvering v. Mitchell, 303 U.S. 391, 400 n.3 (1938); Hepner v. United States, 213 U.S. 103, 112 (1909).

37. The Court distinguished Boyd v. United States, 116 U.S. 616 (1886), the leading case on "quasi-criminal" penalties. In Boyd, defendants who had been indicted for attempting to defraud the government of customs duties filed a claim to recover the goods in question. The court found that the Fifth Amendment protected the defendants from complying with the prosecutor's demand that they produce the invoice covering the goods, declaring that "proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal." 116 U.S. at 633-34. The Court distinguished Ward from Boyd on two grounds. First, the penalty in Boyd was forfeiture of property, which, unlike the monetary assessment in Ward, did not serve a compensatory function, bearing no relation either to enforcement costs or to damages sustained as a result of the violation. Second, in Boyd there was no separation between civil and criminal penalties in the statute; forfeiture was listed as an alternative to fine or imprisonment in the same subsection. 48 U.S.L.W. at 4929-30, 10 ELR at 20480.

38. In a concurring opinion, Justices Blackmun and Marshall delineated their differences with the Tenth Circuit's application of the Kennedy v. Mendoza-Martinez criteria. Rejecting the lower court's conclusion that none of the factors supports a civil designation, they observed that the monetary penalty imposed no affirmative disability or restraint, that monetary assessments are traditionally viewed as civil sanctions, and that the penalty serves remedial purposes disassociated from punishment. These factors cumulatively point in a civil direction, while those lending weight to a criminal designation were deemed inconclusive. The justices were also influenced by the fact that culpability is one among many factors that the Coast Guard considers in making an assessment, that placement of monies in the revolving fund indicates the "civil and compensatory thrust" of the penalty, and the remote likelihood that the fines would be excessively heavy.

39. 33 U.S.C. § 1321(f), ELR STAT. & REG. 42134.

40. The Supreme Court applies a two-part analysis in assessing the constitutionality of a statutory self-reporting requirement, invalidating it if it is found to be (1) aimed at a "highly selective group inherently suspect of criminal activities," Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965), or (2) primarily aimed at facilitating the prosecution and conviction of criminals rather than the furtherance of noncriminal objectives, Shapiro v. United States, 335 U.S. 1 (1947).

41. Justice Stevens likened Ward to cases in which the Supreme Court overturned convictions based upon federal laws that imposed mandatory reporting requirements upon individuals engaged in activities such as gambling that were deemed criminal per se under other statutes. See, e.g., Marchetti v. United States, 390 U.S. 39 (1968); Grosso v. United States, 390 U.S. 62 (1968). See also California v. Byers, 402 U.S. 424 (1971), in which the Court upheld a hit-and-run statute against a self-incrimination attack, finding it was not aimed at an "inherently suspect group," that self-reporting was essential in furthering important nonpunitive objectives, and that the lack of independent sources of prosecutorial evidence justified the use of such evidence in criminal prosecutions. Essentially, Stevens' conclusion in Ward was either that the § 311(b)(6) penalty as a criminal sanction did not serve objectives important enough to justify a waiver of Fifth Amendment privileges, or that alternative mechanisms would suffice to furnish the necessary information.

42. 372 U.S. at 168-69. See note 26, supra.

43. "Whether the sanction imposes an affirmative disability or restraint" is one criterion that the Tenth Circuit demonstrated aptly should carry little weight. Ward v. Coleman, 598 F.2d 1187, 1193, 9 ELR 20331, 20333 (10 Cir. 1979). Similarly, "whether the penalty has historically been regarded as a punishment" is only a marginally helpful factor. While monetary penalties have traditionally been considered punitive, their collection as civil remedies is widely accepted. United States v. General Motors Corp., 403 F. Supp. 1151, 6 ELR 20248 (D. Conn. 1975). Finally, "whether the behavior to which the penalty applies is already a crime" is of little probative weight, as perhaps best shown by the Supreme Court in Ward, 48 U.S.L.W. at 4928, 10 ELR at 20480. See also United States v. General Motors, 403 F. Supp. at 1163.

44. 589 F.2d at 1194, 9 ELR at 20333.

45. 48 U.S.L.W. at 4929, 10 ELR at 20481.

46. See United States v. Marathon Pipe Line Co., 589 F.2d 1305, 9 ELR 20004 (7th Cir. 1978); United States v. Tex-Tow, Inc., 589 F.2d 1310, 9 ELR 20006 (7th Cir. 1978); United States v. Atlantic Richfield Co., 429 F. Supp. 830, 7 ELR 20635 (E.D. Pa. 1977); United States v. General Motors Corp., 403 F. Supp. 1151, 6 ELR 20248 (D. Conn. 1975).

47. 589 F.2d 1310, 1314, 9 FLR 20006, 20007 (7th Cir. 1978).

48. The approach to liability adopted in § 311 of the FWPCA, whereby only those firms actually responsible for spills contribute to the general cleanup fund, has proven inadequate to maintain it. See note 16, supra. While the "superfund" legislation now pending before Congress will probably preserve the § 311(b)(6) penalties, it will also provide a far greater source of revenue from across-the-board fees imposed upon, and recovered from, certain members of the hazardous substance industry. See S. 1480, H.R. 85, 96th Cong., 1st Sess. (1979).

49. 589 F.2d 1305, 1310, 9 ELR 20004, 20006 (7th Cir. 1978).

50. See note 29, supra.

51. 423 F. Supp. at 1357, 7 ELR at 20136.

52. See United States v. Atlantic Richfield Co., 429 F. Supp. 830, 7 ELR 20635 (E.D. Pa. 1977); United States v. General Motors Corp., 403 F. Supp. 1151, 1162, 6 ELR 20248 (D. Conn. 1975).

53. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).

54. United States v. General Motors Corp., 403 F. Supp. 1151, 1162, 6 ELR 20248 (D. Conn. 1975). See also Ward v. Coleman, 423 F. Supp. 1352, 7 ELR 20134 (W.D. Okla. 1976); Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1009 (5th Cir. 1975).

55. See note 48, supra.