ELR Citation: ELR 20331
No(s). 77-1952 (10th Cir. May 10, 1979)

The Tenth Circuit reverses a district court's denial, 7 ELR 20134, of plaintiff's challenge to the use of its notification to the Coast Guard of an oil spill as the basis for subsequent assessment of a civil penalty under §1321(b)(6) of the Federal Water Pollution Control Act. The statutory language and the administrative enforcement mechanism indicate that the intent of §1321(b)(6) is primarily punitive in nature. This view is corroborated by the fact that the factors used in determining the amount of a penalty, such as the gravity of the violation, the degree of culpability, and the prior record of the spiller, are based on retributive considerations and do not reasonably relate to a remedial or compensatory purpose or give consideration to the extent of damage to the environment. Thus, because notification of discharge is clearly compelled by §1321(b)(5), the use of such notification in determining either liability for or the amount of civil penalties imposed under §1321(b)(6) violates the Fifth Amendment privilege against self-incrimination. The court does not, however, strike down the self-reporting requirements of §1321(b)(5) or the civil penalty provisions of §1321(b)(6), providing that the evidence used to establish the discharge is derived from sources independent of the disclosure compelled by §1321(b)(5). The Tenth Circuit rules that the district court correctly refused, 6 ELR 20722, to convene a three-judge district court under 28 U.S.C. §2282.

Counsel for Plaintiffs
Stephen Jones, David Butler
Jones & Gungoll
P.O. Box 3339, Enid OK 73701
(405) 233-4321

Counsel for Defendants
Michael McCord; Sanford Sagalkin, Deputy Ass't Attorney General; Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Larry D. Patton, U.S. Attorney; Richard Campbell, Ass't U.S. Attorney
4434 U.S. Courthouse, Oklahoma City OK 73102
(405) 236-2623

Counsel for Amicus Curiae Mountain States Legal Foundation, et al.
Kea Bardeen, James G. Watt
Mountain States Legal Foundation
1845 Sherman St., Denver CO 80203
(303) 861-0244

Harold B. Scoggins Jr., General Counsel
Independent Petroleum Ass'n of America
1101 16th St. NW, Washington DC 20005
(202) 466-8240

Joined by Holloway and McKay, JJ.