Tenth Circuit Bucks the Tide of Precedent in Rejecting Civil Penalties for Oil Spills Based on Self-Reporting

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.

Background

The Federal Water Pollution Control Act requires the person in charge of any vessel or facility to notify the Coast Guard immediately of any oil discharged from [9 ELR 10125] such vessel or facility into navigable waters.⁸ Evidence derived from the notification may not be used against such person in any criminal case.⁹ The owner or operator of the polluting vessel or facility is, however, subject to the mandatory assessment of a civil penalty of up to $5,000.¹⁰ The Coast Guard, in determining the amount of the penalty, considers the gravity of the violation, the size of the business involved, and its ability to pay.¹¹ When cleanup costs are incurred by the Coast Guard, they may also be assessed.¹²

The civil penalty provision in § 311(b)(6) of the FWPCA has often been attacked as imposing a criminal fine which cannot be based on evidence received through compulsory self-reporting because of statutory and constitutional immunities. A majority of courts have rejected this reasoning, however, on the grounds that the penalty is regulatory in nature and lacks the punitive intent which typically characterizes criminal penalties. Congress' clear designation of the § 311(b)(6) penalty as "civil" has been considered authoritative by most courts that have considered the question, given the absence of conflicting legislative intent.¹³ The absence of a "scienter"¹⁴ element also helped persuade many courts¹⁵ of the penalty's non-punitive intent.

Prior to the Tenth Circuit ruling in Ward, the federal district court in United States v. Le Beouf Bros. Towing Co.,¹⁶ had held the statutory forerunner of § 1311(b)(6) to be criminal in nature. The court reasoned that a $10,000 penalty was inherently punitive and that the alleged regulatory purpose of the sanction was belied by the fact that the Act's goal of encouraging the reporting of oil spills would be frustrated by a mandatory sanction imposed on those who did report. Thus, the use of evidence derived from compulsory self-reporting as grounds for imposition of the "civil" penalty violated defendants' Fifth Amendment privilege against self-incrimination.

Reversing the district court's opinion, the Fifth Circuit Court of Appeals¹⁷ chastised the lower court for unduly emphasizing the nature of the penalty, noting that large monetary sanctions have traditionally been widely used in both civil and criminal contexts. The Fifth Circuit further ruled that since corporate defendants were involved, the Fifth Amendment analysis undertaken by the lower court was inappropriate because corporations have no constitutional right against compulsory self-incrimination. In the absence of constitutional limitations, the statutory designation was deemed controlling, and the clear language of the statute forbade extension of immunity to cases involving the contested civil penalty.

Ward v. Coleman

In late March 1975, oil overflowed from a drilling site into the navigable waters of Boggie Creek, Oklahoma. Ward, the proprietor of the site, immediately began cleanup operations and submitted a report of the incident to the Environmental Protection Agency (EPA). The report was forwarded to the Coast Guard, which assessed a $500 civil penalty. Ward refused to pay, claiming that the FWPCA enforcement scheme violated his Fifth Amendment privilege against self-incrimination.

After the United States filed suit for enforcement of the penalty, a federal district court rejected Ward's Fifth Amendment contentions on the basis that the penalty was properly considered civil in nature.¹⁸ The statutory characterization of § 311(b)(6) as "civil" was considered by the court to be an important indicator of its non-criminal nature. The court found that the sanction serves the remedial and compensatory purposes of defraying the costs of administering the FWPCA and cleanup operations and is not designed to exact retribution. The strict liability aspect of the fine was found to serve the legitimate economic purpose of shifting the cost of damage done to the environment from the public to the party responsible for the pollution. Any residual punitive impact was considered merely the unavoidable byproduct of the FWPCA's primary goal of restoring and maintaining the integrity of the nation's waters.

The Tenth Circuit reversed.¹⁹ While acknowledging [9 ELR 10126] that use of the penalty to defray the costs of administering the FWPCA and of cleaning up spills constituted a remedial purpose, the court ruled that the factors used in determining the amount of the penalty were not reasonably related to this purpose and instead showed a punitive motivation. Because other sections of the Act provide for recovery of cleanup costs, the court determined that the penalty could not be considered wholly or even primarily compensatory. Ostensibly giving the statutory characterization of the penalty the benefit of the doubt, the court then applied the tests articulated by the United States Supreme Court in Kennedy v. Mendoza-Martinez²⁰ for determining the nature of legislative sanctions.

Although the 1972 FWPCA Amendments²¹ deleted the scienter requirement of the Act's previous penalty provision,²² thus indicating that the penalty was civil, the Tenth Circuit felt that the factors²³ used by the Coast Guard in assessing the amount of the § 311(b)(6) penalty, such as culpability and prior record, constituted a de facto scienter requirement. These factors are often associated with a retributive goal and thus provided, in the court's eyes, considerable evidence of the penalty's criminal nature.

The existence of a criminal penalty for oil discharges in the Rivers and Harbors Act,²⁴ which is not based on scienter, likewise helped convince the court that the FWPCA civil penalties for the same behavior must also be criminal in nature. In the court's view, the penalty assessment factors were not reasonably related to either the alleged cleanup goal or to the extent of damage to the environment since they cannot be directly correlated to expenses incurred as the result of a particular polluter's activities. The court further opined that § 311(b)(6) penalties are likely to be excessive if imposed even when a spill is "accidental, non-negligent, and non-intentional" or where good-faith efforts are made to mitigate environmental damages. Finally, since the amount of a penalty is generally related to the size of the business involved, the court pointed out that large companies might be penalized excessively in relation to the penalty's allegedly remedial purpose.

The Tenth Circuit thus held that the compelled notification of discharge cannot constitutionally be used against an individual in determining either liability for or the amount of a § 311(b)(6) civil penalty. It declined, however, to find the statute itself unconstitutional, recognizing that individuals may still be subjected to criminal sanctions on the basis of evidence obtained independently of the compulsory notification.

Conflicts Between Ward and Prior Case Law

Almost every test relief upon by the Tenth Circuit to show the criminal nature of the FWPCA "civil" penalty has been persuasively applied by other courts to reach the opposite result. This conflict may to some extent be due to the fact that the defendant in Ward was a natural person rather than a corporation, as was the situation in all other cases. The heart of the decision, however, cannot be so charitably explained.

Under the Fifth Amendment, private citizens have a privilege against self-incrimination which must be liberally construed.²⁵ Corporate entities, on the other hand, have no such Fifth Amendment privilege²⁶ and are thus entitled to invoke only such statutory immunities as Congress deigned to provide. Moreover, statutory immunities invoked by a corporate party are to be construed narrowly.²⁷

The Fifth Circuit²⁸ and other courts²⁹ have rejected attempts by corporate defendants to brandish the FWPCA guarantee of use immunity in criminal proceedings as a bar against the assessment of the civil penalty provision, holding this to be precluded by the plain words of the statute. In § 311(b)(5) Congress expressly provided use immunity only in "criminal" cases, yet in the following section of the Act it labels the § 311(b)(6) penalty "civil," thereby evidencing clear intent not to extend immunity to the latter sanction, regardless of its nature. In a case widely looked to by courts³⁰ to guide their decisions on the nature of FWPCA penalties, Judge Friendly of the Second Circuit Court of Appeals noted that "when Congress has characterized a penalty as civil and the only consequence of a judgment for the [9 ELR 10127] government is a monetary penalty, the courts have taken Congress at its word."³¹

Other courts, while declining to view the "civil" label in the statute as conclusive, have nevertheless reached the same result through application of the Mendoza-Martinez factors.³² The 1972 deletion of the scienter element from the statutory predecessor to § 311(b)(6) and the concurrent reduction of the maximum penalty from $10,000 to $5,000 strongly suggest that Congress intended to create a civil penalty, or at least to move away from the appearance of "criminal" intent which might be ascribed to the earlier statute.³³

Despite the Ward court's reasoning that since the monetary penalty imposed by the Rivers and Harbors Act was criminal in nature the FWPCA penalty should be viewed similarly, there is persuasive precedent to the effect that, on the contrary, the existence of duplicative criminal sanctions should not be readily presumed. In One Lot Emerald Cut Stones v. United States,³⁴ the United States Supreme Court held not only that criminal and civil sanctions may logically and properly coexist within a single regulatory scheme, but indeed that where one such penalty has been designated as criminal, that fact stands as virtually conclusive evidence that the companion penalty was intended to be civil. The Tenth Circuit's reasoning seems irreconcilable with this view and thus lends little support to the result.

A reasonable relationship between the FWPCA civil penalty and a non-punitive purpose, which was found to be lacking by the Tenth Circuit, has been cogently articulated by the Seventh Circuit in two recent, well-reasoned opinions.³⁵ The FWPCA has both the deterrent purpose of preventing oil spills and the remedial purpose of minimizing the damage from such spills once they occur.³⁶ Furthermore, the requirement of cleanup cost reimbursement reveals the Act's economic purpose of placing the financial burden for achieving and maintaining clean waters on the owners and operators of pollution-causing facilities.³⁷ That the penalties collected are used not only for cleanup operations but also to support the Coast Guard's investigative and administrative activities adds further strength to the foregoing reading of the statute.

The rational nexus between a penalty and the statutory goal is not broken merely because the penalty assessed in each case may not directly correspond to the costs incurred as the result of that particular spill.³⁸ Mandatory imposition of penalties serves to "internalize" the overall costs of pollution on an industrywide basis and bridges the inevitable financial gaps which would result from assessments based solely on a specific defendant's conduct.³⁹

Moreover, the extent to which the FWPCA's economic sanctions are aimed at deterring oil spillage should not be viewed presumptively to condemn such sanctions as criminal despite the fact that deterrence is classified as a punitive factor under Mendoza-Martinez. For example, the Fifth Circuit recently held that deterrence is in fact a proper purpose of a civil penalty in that it serves to render the expense of compliance with agency regulations less costly than the failure to do so.⁴⁰ Indeed, the Supreme Court has determined that a civil penalty may have a punitive aspect so long as it is predominately regulatory and is not excessive.⁴¹ The Tenth Circuit's failure in Ward to discern a reasonable relationship between the penalty and a non-punitive purpose thus seems more a product of the court's disregard for precedent than its own well-founded analysis.

Finally, the very factors viewed by the court as demonstrating the excessive and thus criminal nature of the FWPCA penalties have been persuastively shown to indicate the flexible nature and civil intent of the penalty.⁴² By permitting the Coast Guard to vary assessments according to the size of a business and its ability to pay, the statute ensures that its regulatory penalty will not have an unduly harsh impact on oil spillers with limited resources. The imposition of larger penalties on larger corporations furthers Congress' goal of forcing the oil industry, rather than the general public, to bear proportionately the environmental costs of oil production, transportation, and storage. Moreover, the use of business size and ability to pay as civil penalty assessment factors has withstood constitutional scrutiny [9 ELR 10128] in other regulatory contexts similar to the FWPCA penalty program.⁴³

The Tenth Circuit's application of the concepts of scienter and good faith present the most serious logical difficulties and indicates that a vague notion of fairness may have played a greater role than logic in the court's decision. The mandatory nature of the penalty was cited several times by the court as showing punitive intent, since even a non-negligent party acting in good faith may be penalized. Elsewhere in the opinion, however, the court recognized that such "strict liability" generally indicates the regulatory intent usually associated with a civil penalty. On the other hand, at yet another point in the opinion, the "de facto" scienter requirement embodied in the Coast Guard's use of "culpability" and "prior record" as assessment factors was seized upon to show strong evidence of criminal nature. On balance, the application of these various formulas would seem to lead to the conclusion that the § 311(b)(6) penalty should be deemed civil, and thus the court erred in this regard. To the court's credit, however, its result was apparently predicated less on a straightforward (if erroneous) application of principle than on concern for fairness to the defendant. This is corroborated by the candid remark that it would have viewed the penalty more favorably if the statute provided flexibility for reductions in the amount of the fine to reflect cleanup efforts undertaken by defendants. Even if this concern⁴⁴ were well founded, it should not bear on the proper characterization of the penalty provision.

The court's analysis misses the forest for the trees in that it overlooks the crucial distinction between the existence of liability and the amount of the penalty. Under Mendoza-Martinez, a penalty will tend to be viewed as criminal in nature where liability turns on the question of culpability. This, however, is not the case under § 311(b)(6); rather, culpability comes into play only in setting the fine once liability has been established. Thus, the function of the culpability variable is to introduce fairness into the process and to deter egregious conduct.⁴⁵ This variable is only one of many applied by the Coast Guard to ensure that fines are administered in a flexible manner which best achieves the objectives of the regulatory program.⁴⁶ The mandatory imposition of at least some penalty is therefore an appropriate aspect of the total regulatory scheme. Interestingly, the Tenth Circuit has in the past upheld the civil character of a mandatory Occupational Safety and Health Act (OSHA) civil penalty based on consideration of many of the same factors it found criminal in the FWPCA, such as the size of the business, the gravity of the violation, and the defendant's prior record.⁴⁷

Conclusion

None of the appellate courts that have affirmed the civil nature of the § 311(b)(6) penalty are likely to change their views on the strength of the Tenth Circuit's maverick decision. Nevertheless, Ward might well interfere with the effective implementation of the FWPCA's oil spill policy at least in the states located in the Tenth Circuit.⁴⁸ Although the Tenth Circuit attempted to limit its holding to the protection of individuals' constitutional rights against self-incrimination, corporations are now in a more favorable position from which to argue that the court's finding that the § 311(b)(6) penalty is criminal in nature precludes the imposition of such penalties on the basis of self-notification because of the statutory grant of use immunity in criminal cases. It can of course be argued that Congress did not intend that provision to extend to penalties which it expressly labeled "civil." Yet it is not inconceivable that some courts will follow Ward in finding that the criminal nature of the penalty activates the immunity provision. If such corporate claims are rejected by the courts, the potential impact of the decision will not be great because the majority of large oil spills are from the facilities of corporations which would be unable to assert the Fifth Amendment privilege upon which the Tenth Circuit rested its opinion in Ward.

More far reaching, in the long run, may be the decision's impact on other enforcement programs with civil penalty provisions. Civil penalty provisions based on factors found by the Tenth Circuit to show punitive intent and thus criminal nature are included in the Clean Air Act,⁴⁹ the Federal Environmental Pesticide Control Act,⁵⁰ and the Federal Coal Mine Health and Safety Act.⁵¹ If such penalties are found criminal, private defendants, at a minimum, could seek exclusion of all self-reporting data and thus take advantage of this new weapon of defense in administrative enforcement proceedings. Such a result seems improbable, however, given the widespread judicial acceptance of substantially [9 ELR 10129] identical penalty schemes.⁵² The courts show little inclination to reject Congress' increasing use of the civil penalty as an administrative enforcement mechanism designed to avoid further burdening an already overworked judicial system. Ward thus serves to cloud the waters and make more difficult a definitive statement of law regarding the nature of civil penalties, but it seems likely that a more persuasive opinion would be required before any significant reversal of precedent could be expected.

1. 33 U.S.C. § 1321(b)(5), ELR STAT. & REG. 42133.

2. 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133 (cited in text as § 311(b)(6) of the Federal Water Pollution Control Act).

3. U.S. CONST. amend. V: "No person … shall be compelled in any criminal case to be a witness against himself …."

4. 33 U.S.C. § 1321(b)(5), ELR STAT. & REG. 42133.

5. __ F.2d __, 9 ELR 20311 (10th Cir. May 10, 1979).

6. The four circuits to have reached a contrary result are the Fourth, United States v. Allied Towing Corp., 578 F.2d 978, 8 ELR 20673 (1978); the Fifth, United States v. Le Beouf Bros. Towing Co., 537 F.2d 148, 6 ELR 20708 (1976), cert. denied 403 U.S. 987 (1977); the Seventh, United States v. Marathon Pipe Line Co., 589 F.2d 1305, 9 ELR 20004 (1978); and the Eighth, United States v. Apex Oil Co., 530 F.2d 1291, 6 ELR 20628 (1976).

7. Tug Ocean Prince, Inc. v. United States, 436 F. Supp. 907 (S.D.N.Y. 1977); 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); United States v. General Motors Corp., 403 F. Supp. 1151, 6 ELR 20248 (D. Conn. 1975); United States v. Eureka Pipeline Co., 401 F. Supp. 934, 6 ELR 20088 (N.D.W. Va. 1976).

8. Failure to notify can result in a fine or imprisonment, or both. 33 U.S.C. § 1321(b)(5), ELR STAT. & REG. 42133.

9. Id.

10. 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133. Six months after the district court's ruling in Ward, see note 18 infra, § 311(b)(6) of the FWPCA was amended to give the EPA Administrator the option of commencing a separate civil action against a discharger of hazardous substances, taking into account the gravity of the offense and the standard of care manifested by the person in charge of the discharging facility. 92 Stat. 2467, ELR STAT. & REG. 42133. The amount of the newly created § 311(b)(6)(B) penalty is to be based on consideration of the size of the business involved, its ability to pay, and the success of any efforts to minimize or mitigate the environmental harm from the substance spilled. If the discharge resulted from willful negligence or misconduct, the penalty may be as high as $250,000; otherwise, the maximum penalty is $50,000. The Tenth Circuit in Ward did not discuss this alternative penalty. The amendments were essentially a legislative "quick-fix" requested by EPA after certain regulations implementing the Agency's hazardous substances control program were declared unenforceable by the federal District Court for the Western District of Louisiana (Manufacturing Chemist's Ass'n v. Costle, 455 F. Supp. 968, 8 ELR 20667). For a discussion of this case and the amendment to § 311, see Comment, Eleventh Hour Amendment to the FWPCA Resuscitates EPA's Hazardous Substances Discharge Regulations, 8 ELR 10299 (1978).

11. 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133.

12. 33 U.S.C. § 1321(f), ELR STAT. & REG. 42134.

13. See, e.g., United States v. Allied Towing Corp., 578 F.2d 978, 8 ELR 20673 (4th Cir. 1978); Tug Ocean Prince, Inc. v. United States, 436 F. Supp. 907 (S.D.N.Y. 1977); 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); United States v. General Motors Corp., 403 F. Supp. 1151, 6 ELR 20248 (D. Conn. 1975); United States v. Eureka Pipeline Co., 401 F. Supp. 934, 6 ELR 20088 (N.D.W. Va. 1976).

14. "Scienter" is defined as "knowingly" in BLACK'S LAW DICTIONARY 1512 (Revised 4th ed. 1968). The term is frequently used to signify the defendant's guilty knowledge.

15. See, e.g., United States v. Eureka Pipeline Co., 401 F. Supp. 934, 939, 6 ELR 20088 (N.D.W. Va. 1976); United States v. General Motors Corp., 403 F. Supp. 1151, 1162, 6 ELR 20248 (D. Conn. 1975).

16. 377 F. Supp. 558, 6 ELR 20708 (E.D. La. 1974).

17. United States v. Le Beouf Bros. Towing Co., 537 F.2d 149, 6 ELR 20708 (5th Cir. 1976), cert. denied, 403 U.S. 987 (1977).

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

19. Ward v. Coleman, __ F.2d __, 9 ELR 20311 (10th Cir. May 10, 1979).

20. Characterization of a sanction as criminal rather than civil depends upon:

whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote 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. 144, 168-69 (1963).

21. Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500, § 2, 86 Stat. 862.

22. Formerly codified at 33 U.S.C. § 1161(b)(5) (1970).

23. The amount of the penalty is based on consideration of the degree of culpability and prior record of the responsible party and the amount of oil discharged. United States Coast Guard Commandant Instruction 5922.11 A, reprinted in United States v. Le Beouf Bros. Towing Co., 377 F. Supp. 558 (E.D. La. 1974).

24. 33 U.S.C. § 407, ELR STAT. & REG. 41142.

25. Michigan v. Tucker, 417 U.S. 433, 440 (1974).

26. California Bankers' Ass'n v. Schultz, 416 U.S. 21 (1974); George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968).

27. Heike v. United States, 227 U.S. 131 (1913); United States v. Le Beouf Bros. Towing Co., 537 F.2d at 152, 6 ELR at 20709.

28. United States v. Le Beouf Bros. Towing Co., 537 F.2d at 152, 6 ELR at 20709.

29. See, e.g., United States v. Allied Towing Corp., 578 F.2d 978, 980, 8 ELR 20673, 20674 (4th Cir. 1978); Tug Ocean Prince, Inc. v. United States, 436 F. Supp. 907, 924 (S.D.N.Y. 1977); United States v. General Motors Corp., 403 F. Supp. 1151, 1157-63, 6 ELR 20248 (D. Conn. 1975); United States v. Eureka Pipeline Co., 401 F. Supp. 934, 937-41, 6 ELR 20088 (N.D.W. Va. 1975).

30. See, e.g., United States v. Atlantic Richfield Co., 429 F. Supp. 830, 843, 7 ELR 20635, 20636 (E.D. Pa. 1977). aff'd 573 F.2d 1303 (3d Cir. 1978); United States v. General Motors Corp., 403 F. Supp. at 1162; United States v. Eureka Pipeline Co., 401 F. Supp. at 937.

31. United States v. J.B. Williams Co., 498 F.2d 414, 421 (2d Cir. 1974).

32. See, e.g., United States v. General Motors Corp., 403 F. Supp. at 1161-64; United States v. Eureka Pipeline Co., 401 F. Supp. at 939-41.

33. United States v. Eureka Pipeline Co., 401 F. Supp. at 938.

34. 409 U.S. 232, 235 (1972). See also Helvering v. Mitchell, 303 U.S. 391, 399, 404 (1938).

35. United States v. Marathon Pipe Line Co., 589 F.2d 1305, 9 ELR 20004 (7th Cir. 1978); United States v. Tex-Tow Co., 589 F.2d 1310, 9 ELR 20006 (7th Cir. 1978).

36. United States v. Tex-Tow Co., 589 F.2d at 1315, 9 ELR at 20007.

37. United States v. Marathon Pipe Line Co., 589 F.2d at 1309, 9 ELR at 20005.

38. United States v. Tex-Tow Co., 589 F.2d at 1314-15, 9 ELR at 20008.

39. Id. at 1315, 9 ELR at 20008. Thus, a federal district court in New York held that a defendant's removal of spilled oil did not alleviate the environmental harm done and that compensatory penalties are appropriate even where the quantum of damage cannot be measured precisely. United States v. W.B. Enterprises, 378 F. Supp. 420, 422-23 (S.D.N.Y. 1974); see also, Taylor, Assessment of Civil Monetary Penalties for Water Pollution: A Proposal for Shifting the Burden of Proof Regarding Damages, 30 HASTINGS L.J. 651, 668-72 (1979).

40. Atlas Roofing v. Occupational Safety and Health Review Comm'n, 518 F.2d 990 (5th Cir. 1975), aff'd 430 U.S. 442 (1977). The Supreme Court denied certiorari on petitioner's claim that the penalties and enforcement procedures involved were criminal in nature, and granted review only of the question of whether defendant employers had a right to jury trial. This latter question is predicated upon the assumption that the penalty is civil. 424 U.S. 964 (1976).

41. One Lot Emerald Cut Stones v. United States, 409 U.S. at 236.

42. United States v. General Motors Corp., 403 F. Supp. 1151, 1164-65, 6 ELR 20248, 20249 (D. Conn. 1975). The court, reviewing de novo a Coast Guard penalty hearing pursuant to § 311(b)(6), applied the "culpability" factor to reduce the penalty of a "blameless" defendant to the nominal sum of $1.

43. See, e.g., Ford Motor Co. v. Coleman, 402 F. Supp. 475, 489 (D.D.C. 1975) (15 U.S.C. § 1398; failure to meet auto safety requirements); United States v. J.B. Williams Co., 498 F.2d 414, 438 (2d Cir. 1974) (15 U.S.C. § 45(1); violation of Federal Trade Commission cease and desist order related to advertising).

44. 9 ELR 20334. Consideration of good-faith cleanup efforts is in fact inherent in the program because a party's own efforts will lessen the costs incurred by the Coast Guard and hence the charge to the party who spilled oil in the first place. 33 U.S.C. § 1321(f), ELR STAT. & REG. 42134.

45. Other courts have upheld the use of good faith as a factor to be considered in mitigation of analogous civil penalties assessed under the Federal Trade Commission Act, 15 U.S.C. § 45(1) (see note 43, supra). United States v. J.B. Williams Co., 498 F.2d 414, 438 (ed Cir. 1974), see also, United States v. Continental Baking Co., 420 U.S. 223, 229 (1975).

46. For example, the size of the polluter's business and the effect of the penalty on the ability to continue in business must also be considered, 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133, as must the amount of oil discharged, see note 16, supra.

47. Clarkson Construction Co. v. Occupational Safety and Health Review Comm'n, 531 F.2d 451 (10th Cir. 1976). The one difference was that the OSHA penalty required consideration of a party's good faith.

48. To the extent that the new § 311(b)(6)(B) penalty, with its consideration of the mitigation efforts andstandard of care of the defendant, gains the approval of the Tenth Circuit, any problems in implementing FWPCA oil spill policies against noncorporate dischargers within its jurisdiction will be significantly alleviated.

49. 42 U.S.C. § 7413(b), ELR STAT. & REG. 42221.

50. 7 U.S.C. § 1361(a)(4), ELR STAT. & REG. 43317.

51. 30 U.S.C. § 820.

52. See, e.g., Atlas Roofing v. Occupational Safety and Health Review Comm'n, 518 F.2d 940 (5th Cir. 1975), aff'd 430 U.S. 442 (1977).