United States v. Mar-Tee Contractors, Inc.

Crim. No. 75-156 (D.N.J. January 28, 1976)

The double jeopardy clause does not bar criminal prosecution under the Federal Water Pollution Control Act of 1972 (FWPCA) of a defendant who was earlier assessed a civil penalty under the FWPCA for an oil spill. It is within Congress' power to impose both civil and criminal sanctions for the same act or omission. Double jeopardy applies only if the civil action is punitive, rather than remedial, and both actions are brought for the same offense. Section 1321(b)(6) of the FWPCA is rationally designed to compensate the government for oil-caused harm to the environment. Moreover, the Treasury Secretary has discretion to mitigate the penalty's impact on the violator. Furthermore, the FWPCA's criminal and civil penalties apply to different conduct. The former punishes failure to notify the appropriate agency of an oil spill, the latter holds a discharger strictly liable for the spill. Defendant's motion to dismiss the information is denied.

Counsel for Plaintiff
Jonathan L. Goldstein, U.S. Attorney
A. Patrick Nucciarone, Asst. U.S. Attorney
Federal Building
970 Broad Street
Newark NJ 07102
(201) 645-3756

Counsel for Defendant
Richard J. Murray
Schwartz, Steinberg & Tobia
141 S. Harrison Street
East Orange NJ 07018
(201) 678-0610

[6 ELR 20417]

Gerry, J.:

Defendant in this criminal action filed a motion to dismiss the information on the ground that it was barred by the double jeopardy clause.¹ For the reasons stated below, this court denies defendant's motion.

Defendant, Mar-Tee Contractors, Inc., is the owner and operator of a sanitary landfill in Middle Township in Cape May County, New Jersey. On April 30, 1973, the United States Coast Guard notified defendant that oil from its landfill had been discharged into United States waters. On September 4, 1973, the Coast Guard, pursuant to the authority granted to it by the provisions of the Federal Water Pollution Control Amendments of 1972, 33 U.S.C. § 1321(b)(6) (1975 Supp.),² brought a civil action against defendant for discharging a harmful quantity of oil into federal waters. After a hearing, a penalty of $2,500.00 was assessed against defendant for violation of the statute. Upon appeal, the Commandant of the Coast Guard affirmed the assessment and defendant subsequently paid it. On April 14, 1975, the United States filed this criminal information against defendant charging that defendant had failed to notify immediately the appropriate United States agency of the oil discharge as required by another section of the same statute, 33 U.S.C. § 1321(b)(5) (1975 Supp.).³ Mar-Tee pleaded not guilty to the charge and filed this motion to dismiss the information claiming that prosecution of the criminal information would subject it to double jeopardy in violation of the Fifth Amendment.

Deendant argues that, although § 1321(b)(6) authorizes the imposition of a "civil" penalty for discharge of harmful pollutants into United States waters, the penalty is in fact criminal in nature, and that any further criminal prosecution arising out of the discharge is barred as unconstitutional double jeopardy under the principle of Helvering v. Mitchell, 303 U.S. 391 (1938). The Helvering case examined the issue of whether an acquittal on a criminal charge of willful tax evasion barred a subsequent assessment of a tax of 50% of a deficiency due in any part to fraud with intent to evade taxes. The Supreme Court held that the assessment was a civil penalty and thus was not subject to the prohibitions of the double jeopardy clause. In its opinion, the Court noted that the constitutional stricture against double jeopardy merely prohibited a second criminal punishment for the same offense. Id. at 399. Acknowledging that Congress may impose both civil and criminal sanctions for the same act or omission, the Court held that if an examination of the ostensibly "civil" sanction revealed that it "was intended as punishment, so that the proceeding was essentially criminal," that sanction would be treated as a criminal one for double jeopardy purposes, id. at 398-99, and a subsequent criminal sanction for the same act would be barred.

In sum, the double jeopardy clause applies only when (1) the civil action is in fact punitive, rather than remedial, and (2) when both actions are brought for the same offense. An examination of the facts of this case reveals that neither of these conditions exists, and that the criminal prosecution of which defendant complains is not subject to the double jeopardy clause.

The determination of whether a statute imposes a criminal sanction is one of statutory interpretation, Helvering at 399. A more recent case, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963),⁴ declared that this interpretation is based both upon the language of the statute and the intent of Congress. The Kennedy case set forth the following criteria relevant to the determination of whether an Act of Congress is penal or regulatory in character:

[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it depends only upon 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.

Id. at 168-69 (footnotes omitted). In addition, the Court stated that "[a]bsent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face." Id. at 169.

An examination of § 1321(b)(6) under the Kennedy criteria reveals that the statutory penalty is not criminal in nature. [6 ELR 20418] Although the legislative history of the statute contains no indication of whether the sanctions were intended to be punitive or remedial,⁵ the language of the statute itself reveals that it is not a traditional criminal penalty in nature. It is specifically designated as a "civil penalty" — a factor which alone is not conclusive, but does shed light on the intent of the drafters. The assessment of the penalty does not depend upon a finding of scienter as in criminal cases. The acts which the statute prohibits were not previously considered criminal. More importantly, the statute can be rationally viewed as a remedial measure designed to compensate the government for harm to the marine and shoreline environment caused by the discharge of harmful quantities of oil. It cannot be said that the penalty is an excessive method by which to achieve this purpose, because the drafters of the statute tempered its environmental protection penalties with a concern for the effect of its sanctions upon the violator. The statute specifically authorizes the Secretary to compromise assessed penalties and requires that in determining the amount of the penalty the Secretary must consider "the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator's ability to continue in business and the gravity of the violation."⁶ 33 U.S.C. § 1321(b)(6) (1975 Supp.). This feature of the statute, in addition to the others noted, shows beyond doubt that the purpose of the statute is not punitive, but rather is a remedial measure designed to regulate the quality of the nation's waterways. Accordingly, the fine imposed on defendant is not a criminal penalty and does not warrant the application of the double jeopardy clause to the subsequent criminal prosecution of defendant under 33 U.S.C. § 1321(b)(5) (1975 Supp.).

Defendant also fails to meet the second prong of the Helvering two-part test. Defendant argues that the double jeopardy clause bars its subsequent criminal prosecution because the earlier civil penalty was imposed for the same conduct. Defendant admits in his brief, however, that Congress may impose a criminal and civil sanction for the same act or omission. 303 U.S. at 399; Defendant's Brief at 2. Moreover, §§ 1321(b)(5) and (b)(6) proscribe entirely different conduct. The test for whether there are two separate offenses so as to preclude the application of the double jeopardy clause is whether one offense requires proof of a fact that the other does not. Gore v. United States, 357 U.S. 386 (1958); Skipworth v. United States, 508 U.S. 598, 599 n. 2 (3d Cir. 1975). Section 1321(b)(6) imposes a civil penalty on owners of onshore facilities for discharge of oil into United States waters, regardless of intent or knowledge of the discharge. See Commandant's Opinion (No. 5830/5-3) at 2. Section 1321(b)(5) imposes a criminal sanction on any person in charge of such a facility from which oil is discharged for entirely different conduct — knowledge of the discharge and failure to report it immediately.

Since defendant cannot meet either part of the Helvering test, he cannot invoke the protection of the double jeopardy clause as a bar to this criminal prosecution. Accordingly, defendant's motion is denied.

1. The double jeopardy clause of the Fifth Amendment provides that:

[n]o person shall be . . . subject for the same offense to be twice put in jeopardy of life and limb. . . .

U.S. Const. Amend. V.

2. 33 U.S.C. § 1321(b)(6) (1975 Supp.) provides that:

[a]ny owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $5,000.00 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator's ability to continue in business, and the gravity of the violation, shall be considered by such Secretary. The Secretary of the Treasury shall withhold at the request of such Secretary the clearance required by Section 91 of Title 46 of any vessel the owner or operator of which is subject to the foregoing penalty. Clearance may be granted in such cases upon the filing of a bond or other surety satisfactory to such Secretary.

Paragraph (3) of the same section, with exceptions not here relevant, prohibits:

[t]he discharge of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone in harmful quantities. . . .

The Secretary delegated his authority to assess fines under this section to the Commandant of the Coast Guard by regulations appearing at 33 C.F.R. § 2.50-1 (1973).

3. 33 U.S.C. § 1321(b)(5) (1975 Supp.) provides that:

[a]ny person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000.00, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.

4. The Kennedy case examined whether certain statutes requiring forfeiture of citizenship for certain acts were penal in character and thus violated the due process clause of the Fifth Amendment for failure to provide a hearing. The test is the same as the test for applying the double jeopardy clause of the Fifth Amendment.

5. The legislative history of this statute can be found at 1972 U.S. Code Cong. and Admin. News 3668 et seq.

6. Nothing in the language of the opinion of the Coast Guard Commandant (No. 5830/5-3) denying defendant's administrative appeal indicates that this statutory language was not considered in the assessment or upon review of the penalty. This observation is supported further by the fact that defendant was assessed a penalty of $2,500.00, one half of the maximum amount authorized by the statute.