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March 29, 1977


The opinion of the court was delivered by: BECKER


 I. Preliminary Statement

 These cases raise issues concerning the proper construction and the constitutionality of the "civil penalty" provision of the oil and hazardous substance sections of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), § 1321 (b)(6) of 33 U.S.C. §§ 1251 et seq. (Supp. 1976). *fn1" The constructional issues boil down to whether Congress intended to impose the civil penalty on persons who spill oil accidentally, report such spill to the appropriate authorities, and clean it up at their own expense (hereinafter "accidental, reporting self-cleaners"). The constitutional issues of importance are: (1) whether a penalty imposed in such circumstances is irrational and, hence, a denial of due process; and (2) whether the penalty is in actuality criminal in nature so as to trigger various Sixth Amendment rights. Several other constitutional claims are raised, but they are of minor proportion and will only be footnoted.

 The issues, at least to the extent that they are defined by the statutory context of the FWPCA civil penalty provision, are of first impression in this circuit. They are raised by Atlantic Richfield Co. (Arco) and Gulf Oil Corp. (Gulf) in their defenses to these ten government suits to enforce administratively assessed penalties. Arco is defendant in four of these cases, and Gulf in six. The cases, which involve identical legal issues, were originally assigned to various judges of this court and were transferred to the undersigned by agreement of the parties. The parties have stipulated to the facts and have submitted the cases to us on cross motions for summary judgment.

 The facts in each of the ten cases, so far as they are operative, are not only undisputed, but follow the same pattern. The statutory scheme, on the other hand, is complex and singular, and its meaning is very much in dispute. Since the "facts" are so thoroughly entwined in the statutory requirements that their significance is not apparent except in that context, we shall reverse our usual order of presentation and will sketch the statutory skeleton before fleshing it out with the facts upon which these cases are presented. We do so by summarizing (and paraphrasing) the key statutory provisions, also noting the statutory section number. *fn2" They provide as follows:

(a). that federal policy prefers "no discharges of oil . . . into . . . the navigable waters," § (b)(1);
(b). that such discharges "in harmful quantities" are prohibited, § (b)(3);
(c). that in case such discharge occurs, the "person in charge" of the discharging vessel or facility must notify the Coast Guard as soon as he knows, § (b)(5); *fn3"
(d). that failure to notify shall subject such person in charge to fine up to $10,000, or one year imprisonment, or both, id. ;
(e). that such person shall be entitled to immunity from use of such notification " in any criminal case," id. ; (emphasis added)
(f). that the Coast Guard shall assess a " civil penalty " up to $5,000 upon the owner of a discharging vessel or facility ("discharger"), § (b)(6); (emphasis added)
(g). that in setting the amount of the civil penalty, the Coast Guard shall consider the "size of the business," the impact of the penalty on the survival of the business, and the seriousness of the violation, § (b)(6);
(h). that the Coast Guard shall issue regulations for the prevention of oil spills, the violation of which shall subject the discharger to a civil penalty up to $5,000, §§ (j)(1)(C) and (2);
(i). that unless the discharger himself satisfactorily cleans up, the Coast Guard shall clean up and the discharger shall be liable for the costs of removal within statutory limits, §§ (c)(1) and (f)(1), (2);
(j). that if the discharge "was the result of willful negligence or willful misconduct" the liability for clean up costs shall be unlimited, § (f)(1), (2);
(k). but that if the discharger can prove that the sole cause was an act of God, of war, or of governmental negligence, or the act (negligent or not) of a third party, then the discharger can recover the costs of removal from the third party or from the United States, §§ (g) & (i);
(l). that any penalties collected shall go into a revolving fund to be spent on cleaning up discharges, planning or coordinating for same, carrying out surveillance, et alia, § (k); and
(m). that prior common law or statutory damage remedies against spillers are not preempted, § (o).

 The statutory scheme does not specify the object of the "use immunity" in "criminal cases" granted to those who disclose their discharges. Section 1321 has no criminal sanctions (except for the failure to report for which one obviously cannot gain immunity by reporting). We therefore must look beyond the statute for a referent and, by so doing, conclude that the object of the § 1321 immunity is the ancient Refuse Act, or Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 407, 411. That Act provides that dischargers of oil (and other substances) shall be liable for a criminal fine up to $2,500 or imprisonment up to one year, or both. We do not mean that the (b)(5) immunity is limited to Refuse Act violations. But we know of no other criminal sanction to which it has been found appropriate.

 Turning now to the operative facts, we note that the stipulations as to the relevant events in each of the cases before us track essentially the same pattern. In each case either Arco or Gulf owned or operated a vessel or facility from which oil was discharged in harmful quantity into the navigable waters of the United States. The discharges were "accidental" or "unintentional," but, perforce, they violated the prohibition on discharge of (b)(3); hence, without more, they subjected the owners (defendants) to liability for the civil penalty under (b)(6). However, the appropriate defendant (or its agent) promptly reported each spill and cleaned it up within the limits of technological feasibility and to the satisfaction of the Coast Guard. Despite defendants' compliance with their reporting and clean up duties, the Coast Guard, following the prescribed administrative procedure, assessed a civil penalty in each case. Upon defendants' refusal to pay, the government sued.

 Proceeding from the factual pattern to specific examples, we note that the actual stipulations add very little. For instance, in two of the actions against Gulf (C.A. 76-601 and 603) we are told in one case only that "a faulty float valve on a sump pump . . . became stuck . . . allowing . . . oil to discharge," and in the other only that "oil from saturated ground . . . somehow reached the water table . . ." (Stipulation between United States and Gulf at 1). The stipulations between the Government and Arco are similarly cryptic. In C.A. 75-3096, "there was an overflow of heavy fuel from the West Yard Oil-Water separator . . .;" and, in C.A. 75-3097, "a manifold . . . developed a leak . . . ." The stipulations do not show any person either to have caused the spills or not. Nor do they suggest either due care or a lack of due care on the part of Arco and Gulf. However, the Government does not contest defendants' claim that the spills were "accidental;" i.e., unintentional or nonwillful.

 Defendants contend that where a discharge is accidental, either the reporting, or the cleaning up, or the combination of both, insulates them from (b)(6) liability. They characterize an accidental, reporting, self-cleaner as absolutely without fault. As a matter of statutory construction they argue: (1) that the scope of the (b)(5) immunity in "criminal [cases]" should be construed to reach (b)(6) penalties against accidental, reporting, self-cleaners; and (2) that the determination of whether (b)(3) was violated by a harmful discharge should measure harmfulness in light of the clean up results. Defendants' due process contention is that to impose the clean up costs attributable to those who do not report their spills and do not get caught upon accidental, reporting, self-cleaners is shocking to the conscience or, at least, irrational. Their claim to a Sixth Amendment jury trial and its incidents relies on the converse ...

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