Water Act's Oil Spill Notification Rule Survives Constitutional Challenges

It is an environmental truism that neither the ecosystem nor pollutants respect state lines. One state's factory emissions may become another's acid precipitation; one's polluted waste waters may cause bacteria blooms and fish kills in another's lakes. This phenomenon goes far to explain the federal government's growing involvement in air and water pollution control, traditionally a matter of state and local responsibility. The federal role now seems to some so pervasive as to strain the fabric of the federal system. Under the Clean Air Act, for example, several courts of appeals have recently found the Environmental Protection Agency lacking in commerce power authority to force the states to assist it in implementing politically unpopular transportation controls for urban areas.¹

Implementation of the far-reaching Federal Water Pollution Control Act Amendments of 1972 (FWPCA-1972) has thus far not been seriously challenged as being beyond the substantive reach of federal constitutional power. Many litigants have, however, launched Bill or Rights attacks on the statute's stringent oil spill enforcement scheme, particularly one of its self-reporting requirements. A flurry of recent cases illustrates the problems, the major issues raised by these challenges, and the resilience of the Act in the face of this sort of attack.

Oil and other hazardous chemical discharges and spills can have devastating effects on the environment, including damage to aquatic wildlife, shoreline ecosystems, recreational opportunities and aesthetic values. As a result, anti-spill laws have been on the books for many years, but early legislation applied only to vessels and focused only on grossly negligent or willful spills.² Gradually it came to be understood that major spills are often accidental, and that many come from on-shore facilities such as pipelines, tank farms, refineries, and other industrial concerns which store and use oil. In addition, responsibility for spills proved hard to assign due to the difficulty of pinpointing the source of oil already in the water. Finally, it came to be realized that spills were not being discovered promptly, and that this maximized damage because oil does more harm the longer it remains in water.

Self Notification Requirement Needed

To remedy these limitations of prior law, the federal water pollution laws gradually broadened coverage to include on-shore facilities and established absolute civil damage liability in addition to criminal liability for spills. The broad reach of the law made it clear that federal personnel could not monitor the nation's 26,000 bodies of navigable water and its coastal waters up to 50 [6 ELR 10012] miles offshore. So, to insure prompt cleanup, the government imposed a stringent self-reporting requirement: whoever spills harmful quantities of oil or other hazardous substances must immediately notify authorities of that fact; both failure to notify and failure to do so promptly are criminal offenses.³

In order to mitigate the constitutional problems posed by this system, the FWPCA contains a "use immunity provision": information derived from the required notification cannot be used in a criminal prosecution of the person responsible for the spill.⁴

Despite the use immunity provision, many litigants have complained that the notification requirement violates their privilege against self-incrimination. The strongest line of argument focuses on the government's using notification information to sue for civil damages under FWPCA.⁵ This "civil" penalty is, it is claimed, in fact penal in character.

The argument has proved convincing to one federal district court,⁶ which invalidated the notification provision in the 1970 FWPCA,⁷ the predecessor to FWPCA-1972. A more recent district court decision⁸ reached the opposite conclusion regarding the current provision, finding that the present penalty provision is in fact civil in nature and purpose.

Civil Damages Not Penal

The latter court's analysis focused on congressional intent, on the purposes served by the damages provision, on its lack of a scienter requirement (a violation may be established simply by a showing that the party charged in fact caused a spill; it is irrelevant whether or not he had any knowledge of it), and on the modest size of recovery authorized ($5,000 per violation) and actually assessed (an average of $521 for each of 19 admitted violations). That Congress intended a civil measure was easily gleaned from the legislative history, particularly the fact that FWPCA-1972 halved the damage provision (previously $10,000) and deleted the scienter requirement.

Whether the provision meets the constitutional test for a non-penal sanction was a far closer question. The factors which determine whether a governmental sanction is "penal" (i.e., criminal) rather than "civil" were most recently summarized by the Supreme Court in Kennedy v. Mendoza-Martinez:

[1] whether the sanction involves an affirmative disability or restraint, [2] whether it historically has been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote additional aims of punishment — retribution and deterrence [of others], [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.⁹

Measured against these factors, the court found the damage provision neither conclusively civil nor clearly penal in nature. Factors [1] and [5] suggested a penal sanction, while factor [3] cut the other way. Factor [2] cut both ways, for monetary sanctions have historically been viewed both as a punishment and as a civil remedy. The status of the provision was also viewed as ambiguous under factors [4] and [6], for FWPCA's enforcement scheme aims both to prevent and to regulate oil spills; the purpose of the civil damage provision may be both individual regulation (civil) and general deterrence (criminal). Moreover, the funds it generates are partly used to defray costs of administering the Act and to compensate the government fortortious damage to the environment.¹⁰ Finally, that the damage provision is civil in nature was suggested by the small size of the penalty actually imposed, and by the related fact that the statute requires the polluter's ability to pay to be taken into account in fixing penalties. In the absence of conclusive evidence that the civil penalty is penal, the court concluded that it must accept Congress' characterization of it as civil.

The Court's application of Mendoza-Martinez is beyond criticism. Moreover, even if the Court had come out the other way, the defendant would probably not have been any better off. This is because the self-notification requirement probably could withstand a self-incrimination attack even if its fruits were admissible in a criminal proceeding, i.e., even if the civil damage sanction were considered criminal.

Self-Notification Constitutional

Where the government has a strong reason for requiring self-reporting of potentially incriminating information, the Supreme Court has not usually invalidated such requirements under the self-incrimination clause. Perhaps the closest analogy to reporting oil spills is the automobile hit-and-run rule. Most states require motorists to stop at the scene and leave name and address when in an accident involving property damage or human injury, irrespective of the risk of self-incrimination. In California v. Byers,¹¹ the U.S. Supreme Court upheld California's hit-and-run statute against a self-incrimination attack, and this despite a contrary ruling in the case by the California Supreme Court.

Chief Justice Burger, in a plurality opinion joined by three other Justices, based support for the law on the inapplicability of a test employed in a series of earlier Supreme Court decisions to invalidate federal laws which imposed self-reporting requirements on members of the Communist Party, gamblers, owners of illicit guns, and drug dealers.¹² Unlike the groups which were the target of those laws, reasoned the Chief Justice, drivers involved in accidents are not a "highly selective" group or "inherently suspect of criminal activities." Furthermore, he noted, two major purposes of [6 ELR 10013] hit-and-run reporting are noncriminal — prompt aid for victims and identification of responsible party for civil liability — and self-reporting is essential to fulfillment of those proposes.

The swing vote in Byers was cast by Justice Harlan, whose opinion was the only one to face the fact that from the viewpoint of the affected individual, the risk of incrimination (under California's criminal driving statutes) is equally real whether or not he belongs to a general class of "inherently suspect" persons. Justice Harlan determined the legitimacy of the reporting requirement by balancing this individual risk of self-incrimination against

the assertedly non-criminal governmental purpose in securing the information, the necessity of self-reporting as a means of securing the information, and the nature of the disclosures required.¹³

Justice Harlan concluded that the requirement was valid.

The FWPCA's self-reporting scheme for oil spills is similar to that upheld in Byers. In both cases, there is a risk of self-incrimination. In both, one finds a primary non-criminal governmental purpose for requiring self-reporting. In Byers, it was insuring a system of financial responsibility for automobile accidents; in FWPCA, it is assuring quick and effective cleanup and civil liability for oil spills.

Finally, in both, self-reporting is essential to achieving the non-criminal purpose. Arguably the risk of incrimination is greater under the FWPCA, since the very act which must be reported (the spill) is itself a crime (assuming the civil damage provision is criminal). But, equally arguably, the government's dual non-criminal interests¹⁴ in quick cleanup and financial responsibility for potentially disastrous oil spill damages is greater than the state's automotive counterpart. Thus, the balance remains on the side of no self-incrimination, at least under Justice Harlan's test.¹⁵

Vagueness Challenge Rejected Too

Another kind of constitutional challenge to the oil spill notification requirement was attempted in United States v. Kennecott Copper Corp.,¹⁶ a criminal prosecution for failing to give prompt notification of a spill.

One Friday night late in 1973, a pipeline at a Kennecott plant in Arizona broke, releasing 173,800 gallons of diesel oil which flowed initially into a pond on the company's property. Kennecott supervisors testified that they were called to the site early the next morning (Saturday) only to find that company employees had dammed the pond to prevent it from draining into a 100-yard channel which connected the pond to the Gila River. They said they had seen no oil in the river that morning, but one admitted that he had smelled oil near the river. Upon further examination the next day, the supervisors saw several handprint-size patches of oil on the river's surface. Later that day, one examined the river again after hearing a rumor that a horse had gotten oil on its legs while crossing downstream. It was not, however,until the following afternoon, Monday, that they reported a possible discharge to the EPA regional office in San Francisco. It was ultimately discovered that only 24,000 gallons of the spilled oil had been retained in the pond; the other 150,000 gallons were apparently lost in the ground and the river. Water samples taken downstream from the pond contained oil from the spill.

On appeal, Kennecott's attack on § 311(b) concentrated on asserted vagueness in three of its terms (italicized in the following citation):

(3) The discharge of oil … into or upon the navigable waters … in harmful quantities as determined by the President … is prohibited….

(5) Any 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 … immediately notify the appropriate agency of the United States Government of such discharge.¹⁷

In an attempt to distinguish an earlier Ninth Circuit case¹⁸ which had upheld identical language in another section of the statute, Kennecott pointed to EPA's failure to promulgate a definition of "harmful quantities," as required by § 311(b)(4),¹⁹ until after the spill in question had occurred.

The court rejected this contention, finding that the predecessor definition of harmfulness, promulgated under the 1970 FWPCA, was continued in effect by the savings clause of FWPCA-1972.²⁰

Nor was the court convinced by Kennecott's assertion that "appropriate agency" is too indefinite to give adequate notice as to which government agency to contact in the event of a spill. According to the Ninth Circuit, the term includes any federal agency concerned with water and environmental pollution, or with navigable waters. EPA and the Coast Guard are, of course, the most obvious examples, and Kennecott officials chose the latter.

"Immediately" was held to mean reasonably promptly. The telephone call reporting a possible spill would have met the statutory requirement if it had been made the morning after, Saturday, December 1, when the supervisors were first called to the scene, rather than the following Monday afternoon, more than three days after the spill. This view accords with the Sixth Circuit's conclusion, in United States v. Ashland Oil and [6 ELR 10014] Transportation Co.,²¹ that notification 15 hours after an oil spill which occurred at 7:00 P.M. was not immediate within the meaning of the statute. It would seem that to be immediate, notification must be made within a few hours after the existence of a spill is discovered.

Despite the large quanty of oil spilled, Kennecott also has important implications on the "harmful quantities" issue. Dufining this term as a "substantial amount," the court observed that the defendant in Boyd had been convicted for failing to report a spill of 30 gallons of diesel oil. But the ruling in Kennecott actually wenta step beyond the previous "visible sheen" of "if you can see it, report it" test, which had been applied in both Boyd and Ashland Oil. Although it was ultimately determined that more than 100,000 gallons of oil were likely discharged from the Kennecott facility into navigable waters, the company supervisors' testimony indicated that they saw no oil in the river until Sunday morning. In the light of this testimony, the court's conclusion that notification was required Saturday morning in effect implies that the spill had to be reported at a time when company personnel had smelled oil at the river but had as yet seen no visible oil sheen on its surface. This suggests that to be safe, an operator must accomplish notification within a few hours of discovering facts which lead him to suspect the existence of a substantial oil spill even though he may not yet have hard evidence, such as a visible sheen on navigable waters, that such a spill has in fact occurred.

Taken together, Eureka and Kennecott provide crucial assurance that the stringent oil-spill control provisions of the 1972 Federal Water Pollution Control Act Amendments can withstand strict constitutional scrutiny at a time when other environmental laws are being seriously questioned. This assurance comes none too soon, for energy needs will soon multiply the likelihood of oil spills, as super tankers begin to pay the seas, deepwater ports are created for them, and offshore drilling facilities and onshore support sites spring up on both coasts of the United States.²²

1. See Comment, The Environmental Protection Agency's Transportation Controls Still Face Constitutional Roadblock, 6 ELR 10014 (Jan. 1976); Comment, Circuits Split on Whether EPA May Require a State to Adopt and Enforce Clean Air Act Transportation Controls, 5 ELR 10193 (Nov. 1975).

For an excellent general overview of the constitutional underpinnings of federal environmental law, see Soper, The Constitutional Framework of Environmental Law, in Environmental Law Institute, Federal Environmental Law 20-125 (E. Dolgin & T. Guilbert, eds. 1974) (hereinafter Constitutional Framework).

2. See 1970 U.S. Code Cong. & Admin. News 2701.

3. FWPCA § 311(b)(5), 33 U.S.C. § 1321(b)(5), ELR 41118.

4. Id.

5. Id. § 311(b)(6), 33 U.S.C. § 1321(b)(6), ELR 41118.

6. United States v. LeBoeuf Bros. Towing Co., 377 F. Supp. 558 (E.D. La. 1974).

7. Former 33 U.S.C. § 1161(b)(5) (1970).

8. United States v. Eureka Pipeline Co., 6 ELR 20088 [digest] (N.D. W.Va. Oct. 8, 1975), appeal docketed (5th Ci. filed Dec. 7, 1975).

9. 372 U.S. 144, 168-69 (1963) (numbers added).

10. United States v. W.B. Enterprises, Inc., 378 F. Supp. 420 (S.D.N.Y. 1974). This case also upheld the self-notification provision, but with little analysis.

11. 402 U.S. 474 (1971).

12. Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965); Marchetti v. United States, 390 U.S. 39 (1968); Grosso v. United States, 390 U.S. 62 (1968); Haynes v. United States, 390 U.S. 85 (1968); Leary v. United States, 395 U.S. 6 (1969).

13. California v. Byers, 402 U.S. 424, 454 (1971) (Harlan, J., concurring). See also Constitutional Framework, supra note 1, at 47.

14. Recent advances in oil "fingerprinting" techniques may make even less important the civil/criminal identification function of the notification requirement. Recently, for example, an oil spill off the coast of Florida was traced by the Coast Guard to a Liberian tanker, whose captain was arrested when his ship entered Philadelphia Harbor in early November, 1975. Said the Coast Guard, it sampled the spilled oil by sophisticated chemical techniques, and all pointed to the ship in question.

15. But see Constitutional Framework at 48-19. To the extent that the author argues that the FWPCA use immunity provision does not protect one from criminal prosecution under the Rivers and Harbors Act, ELR 41141, 41142, his view has been invalidated by subsequent judicial interpretation, United States v. Republic Steel Corp., 491 F.2d 315, 4 ELR 20276 (6th Cir. 1975).

16. 5 ELR 20707 (9th Cir. Sept. 24, 1975).

17. FWPCA-1972 §§ 311(b)(3) & (5), 33 U.S.C. §§ 1321(b)(3) & (5) (Supp. 1973), ELR 41118.

18. United States v. Boyd, 491 F.2d 1163, 3 ELR 20434 (9th Cir. 1973).

19. 33 U.S.C. § 1231(b)(4), ELR 41118.

20. 33 U.S.C. § 1251 note, ELR 41102.

21. __ F.2d __, 4 ELR 20784 (6th Cir. 1974).

22. See, e.g., Comment, The Rush for Offshore Oil and Gas: Where Things Stand on the Outer Continental Shelf, 5 ELR 10026 (Feb. 1975).