LOCATION: Elkhart, Indiana
DOCKET NO.: 79-394
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Tenth Circuit
CITATION: 448 US 242 (1980)
ARGUED: Feb 26, 1980
DECIDED: Jun 27, 1980
Edwin S. Kneedler - on behalf of the Petitioner
Stephen Jones - on behalf of the Respondent
Facts of the case
Media for United States v. Ward
Audio Transcription for Oral Argument - February 26, 1980 in United States v. Ward
Warren E. Burger:
We will hear arguments next in the United States v. Ward and others.
Mr. Kneedler, you may proceed when you are ready.
Edwin S. Kneedler:
Mr. Chief Justice, and may it please the Court.
This case is before the Court on a writ of certiorari to the United States Court of Appeals for the Tenth Circuit.
The question presented is whether a proceeding to recover a civil penalty under the Federal Water Pollution Control Act for an oil spill is a criminal case within the meaning of the Self-Incrimination Clause of the Fifth Amendment.
The issue arises because of the interplay in this case between the reporting and penalty provisions of Section 311 of the Act, which I shall briefly described.
The Federal Water Pollution Control Act which is now commonly known as the Clean Water Act establishes a comprehensive program for restoring and maintaining the integrity of the Nation's waters.
Section 311 is specifically directed to the problem of oil spills and discharges of hazardous substances.
This provision was first enacted in roughly its present form in 1970, principally in response to the widely publicized oil spill in the Santa Barbara Channel and the break-up of the tanker Torrey Canyon which caused extensive damage to the coast of England and cost better than $8 million to clean up.
Section 311(b)(3) states the basic prohibition which is against the discharge of harmful quantities of oil and hazardous substances into navigable waters of the United States, adjoining shorelines or into the seas contiguous to the United States.
The Act provides for a national contingency plan to deal with oil spills and hazardous substance discharges when they occur and it also authorizes the President to provide for the clean up of those discharges unless the President is satisfied that the owner/operator of the vessel or facility where the discharge occurs will adequately clean it up.
In order that the Federal Government can insure that these clean up and mitigation measures are taken promptly and thereby limit the ensuing damage, Section 311(b)(5), one of the sections in which the issue in this case centers, requires the person in charge of the vessel or facility to notify the appropriate agency of the Federal Government immediately when a prohibitive discharge occurs.
The failure to do so is a criminal offense.
Congress was sensitive to the Fifth Amendment concerns of this reporting requirement, however, and expressly provided in it that the notification to the appropriate agency of the Government and information derived from exploitation of that notice may not be used in any criminal case except in a prosecution for perjury or for submitting a false statement.
While the Government does clean up the discharge rather than leaving it to the individual owner/operator to do the Government can in return recover the cost of the clean-up from the responsible owner/operator, except that the owner/operator has statutory defense as to liability in certain cases such as where the discharge was caused by God or an act of war, it was the responsibility of the United States or the third party.
Moneys recovered from the owners/operators for the Government's clean-up costs are then in turn paid into a special statutory revolving fund established under the Act and this revolving fund is then used to clean up other oil spills and is in turn replenished when the owners and operators pay back in.
The owner/operator may also be liable under State or other provisions of Federal law for damages to private property resulting from an oil spill, and aside from the question of clean up.
Byron R. White:
$500 doesn't go very far in cleaning up oil spills.
Is there much in it?
Edwin S. Kneedler:
I do not know the present balance.
I do know that when the Act was initially passed appropriated funds were placed into it and the authorization at the original time was $35 million.
I would also point out that based on the 1973 statistics that we put in the petition for certiorari it appeared that there were 14,000 oil spills that the Government was aware of under this Act and something like 8,000 of those cases the Government was able to trace the spill to a particular source.
So while the penalty in a particular case, in this case for example $250, might be small in an individual case those penalties would accumulate and make up a substantial portion of the Funds in this statutory fund.
In addition to the liability to the United States for clean-up and possible liability to third parties for damages to property Section 311(b)(6), the other provision that is specifically involved here, provides that the owner or operator or the person in charge of the facility -- anyone of these -- shall be assessed a civil penalty in an amount not exceeding $5,000 whenever a prohibited discharge occurs.
The Coast Guard has construed this statute to require that at least some penalty be assessed in every case but the statute itself requires that the amount of the penalty within that $5,000 range be tailored according to the gravity of the particular violation, the size of the business concerned and the effect of the penalty on the ability of the owner/operator to remain in business.
The civil penalty case now before the Court resulted from an oil spill at Respondent's property near Enid, Oklahoma on March 23, 1975.
At that time about 20 barrels of combination oil and mud apparently escaped from the retention pit at the drilling facility.
On March 25 the sanitarian with the State Health Department was conducting a routine inspection for other purposes nearby and noticed that oil had seeped out of the retention pit, had run down a gully and into a stream by the name of Boggie Creek.
Respondent does not contest in this Court that Boggie Creek is a navigable water within the meaning of the Act or that the amount of oil discharged in this case is harmful for purposes of the Act.
On the same day that the State sanitarian observed the spill the State Health Department notified Respondent of the spill, Respondent notified EPA of the spill eight days later as he was required to do order Section 311(b)(5).