# Appendix — United States v. Ward > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0884%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 448 U.S. 242 ## Text Gupreme Court, U.& - FILED APPENDIX JAN 2 1990 MICHAEL RODAK, JR., CLERK ——— ~ Iu the Supreme Court of the United States OCTOBER TERM, 1979 No. 79-394 UNITED STATES OF AMERICA, Petitioner — L. O. WARD d/b/a L. O. WARD OIL AND GAS OPERATIONS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI FILED SEPTEMBER 7, 1979 CERTIORARI GRANTED NOVEMBER 5, 1979 Iu the Supreme Court of the United States OCTOBER TERM, 1979 No. 79-394 UNITED STATES OF AMERICA, Petitioner aw) me L. O. WARD d/b/a L. O. WARD OIL AND GAS OPERATIONS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT TABLE OF CONTENTS Page Complete Docket Entries of United States District Court for the Western District of Oklahoma in Civil No. 76-0303.. 2 Complete Docket Entries of United States District Court for the Western District of Oklahoma in Civil No. 76-0456.. 7 Complete Docket Entries of United States Court of Appeals for the Tenth Circuit in No. 77-1952 ......... 11 Spill Report Form, Environmental Protection Agency (April Cee cecdansases nemnence cence 17 Letter to Lou Ward from James J. Doyle, Director, Enforce- ment Division, Environmental Protection Agency (May Nee ss sadecheceanneemecereee 19 Attachment A to the letter of May 13, 1975, signed by L.O. Ward and received by Environmental Protection Agency.. 21 Letter to Commander J. D. Webb, Second U.S. Coast Guard, District, from Harless R. Benthul, Chief, Legal Branch, Enforcement Division, Environmental Protection Agency, a oe rr ee ee 24 Letter to Jones & Gungoll from R. A. Ratti, Chief Counsel, United States Coast Guard (February 11, 1976) ........... 26 ii TABLE OF CONTENTS Page og es, eS eS ER. |, : Seer canner vee 29 Final Judgment (September 6, 1977) _...................00002000000000s--- 34 Excerpts from Transcript of Proceedings of May 9, 1977.... 41 United States Coast Guard Commandant Instruction CR) Rees sical tance dk ata teamcokeeell lacuaceadanebtelanaaemeanis 38 Order of the Supreme Court Granting the Petition for a Writ of Certiorari (November 5, 1979) ................... ee 62 1 CIV-76-0303-E WARD, L. O., PLAINTIFF COLEMAN, WILLIAM J., JR., individually and as Secretary of Transportation for the United States of America; TRAIN, RUSSELL E., individually and as Administrator of the Environmental Protection Agency of the United States of America, and SILAR, ADMIRAL, OWEN W., individually and as Com- mandant United States Coast Guard, United States of America, DEFENDANTS Consolidated W/76-456 8-26-76 CAUSE 32 USC 1821(n); 28 USC 1831, 2201-02, 1833, 1332, 1355—Temp. & perm. Injs. restraining enforcement of statutes relating to oil pollution of inland water; and Declaratory Judg. re navigability of “Boggy Creek” in this Dist. FOR PLAINTIFF Stephen Jones & James H. Gungoll, P.O. Box 3339, Enid, Ok 73701 (405) 233-4321 Harold B. Scoggins, Jr., Independent Petroleum Assn. of America (Amicus Curiae) FOR DEFENDANTS David L. Russell, USA, Roland Campbell, III, & O. B. Johnston, III, AUSA, 4434 U.S. Cthse, OC, 231-5281 and Bruce J. Chasan, Atty, Dept of Justice, Wash, D.C. 20530 (202) 739-2793 Earl Salo, Atty, Dept of Justice, Wash, DC 20530 (202) 739-2738 2 DOCKET ENTRIES DATE PROCEEDINGS 4-13-76 Filed Complaint 4-13-76 Filed prae for & iss’d summons 4-13-76 Filed plf’s Mtn for 3 Judge Ct—ws 4-13-76 Filed plf’s Brief in Sup of Mtn—ws 4-15-76 Filed Order directing dfts to respond to plf’s Mtn for 3 Judge Ct w/brief, w/i 7 days herefrom in the event they or either of them desire to contest said mtn (Eu- banks) ws 4-23-76 Filed Dfts’ Oppo to the Mtn to Convene a 3-Judge Ct—ws 4-27-76 Filed Dfts’ Mtn for Addl Time to Respond to Plf’s Mtn for 3 Judge Ct. w/Order grntg a ext of 5 days to 4-27-76 to file its Response (Eubanks) ws 4-27-76 Filed Order that the plf’s mtn for an order of this ct req’g the Chief Judge of the Circuit to convene a 3- judge district ct to hear this matter is conditionally denied (Eubanks) ws 5-18-76 Filed USM’s Ret re Summons: (4) Served U.S. Attorney General 4-14-76, 2 cert copies mailed to U.S. Atty Gen 4-13-76 Served William Coleman, Secretary of Transportation 4-22-76 by copy w/Emma Lewis Served Owen W. Silare, Commandant U.S. Coast Guard by copy w/J. Collom 4-22-76 Served Russell Train, Adm Environmental Protective Agency by copy w/Georgia Prapas 5-5-76 6-7-76 Filed plf’s Brief to Sup Mtn to Reconsider Order Temp Denying Mtn for 3 Judge Ct—ws 6-8-76 Filed plf’s Mtn to Reconsider Order Temp Denying Mtn for 3 Judge Ct—ws DATE PROCEEDINGS 6-8-76 Ent Order grntg dfts 15 days to respond to plf’s Mtn to Reconsider Order Temp Denying Mtn for 3 J udge Ct (Eubanks) zme ws 6-9-76 Filed Dfts’ Mtn to Dism or, Alt, to Consolidate W/ CIV-76-0456-D w/Memo of Law attach—ws 6-10-76 Ent Order directing plf to respond to dfts’ Mtn to Dism or, Alt, to Consolidate w/ CIV-76-0456-D w/sup brief, w/i 10 days hereof (Eubanks) zmec ws 6-24-76 Filed Dfts’ Response to Mtn to Reconsider Order Temp Denying Mtn for 3 Judge Ct—ws 6-25-76 Filed Pif’s Ans to Mtn to Dism or Alt to Consolidate W/CIV-76-0456-D—ws 7-1-76 Filed Plf’s Reply to Dfts’ Response to Plf’s Mtn to Reconsider Order Temp Denying Mtn for 3 J udge Ct—ws 8-18-76 Filed Mr. Chason’s Itr to Ct re outstanding mtns— ws 8-20-76 Filed Mr. Chason’s ltr to Ct re outstanding mtns & trans. copy of CCofA’s opinion—ws 8-25-76 Filed Mr. Jones’ Itr to Ct, i.e., response to Mr. Chas- an’s foregoing ltrs—ws 8-26-76 Filed Memo Opinion & Order; that Plf’s mtn for reconsideration of this ct’s order conditionally denying the mtn for a 3 judge ct is grntd & the mtn to convene a 3 judge ct is unconditionally denied; dft’s mtn to dism is denied; the alt mtn to consolidate this case w/CIV- 76-456 is grntd; answer in 76-456 to be filed w/i 20 days hereof (Eubanks) ws 10-4-76 PRETRIAL, November 1, 1976, 10:00 a.m. (Eu- banks) 11-1-76 Filed pltf’s Mtn for Judg on the Pldgs &/or for SJ—ws 11-1-76 Filed plif’s Brief in Sup of Mtn—ws DATE PROCEEDINGS 11-1-76 Ent PT; govt to file brief w/i 20 days to answer mtn for SJ; to be on the Enid jury dkt; both sides agree we will have a trial de novo; Ward may reply 7 days after Govt responds to its mtn for SJ (Eubanks) zmc 11-22-76 Filed Dft US’s Memo in Oppo to Mtn for Judg on the Pldgs &/or for SJ—ws 11-24-76 Filed Dft USA’s Interrogs—w/s 12-7-76 Filed plf Ward’s Reply Brief to Gov’ts Brief in Opposition to Ward’s Mtn for Judgm on the Pleadings &/or S. J.—w/s 12-13-76 Filed Independent Petroleum Association of Amer- ica’s Mtn for Leave of Ct to file Brief Amicus Curiae— w/s 12-13-76 Filed Earl Salo’s ltr to Mr. Hawks enclosing a copy of a Ct’s decision dealing w/the “sheen test’’, re- questing it be brought to the ct’s attention—w/s 12-22-76 Filed Memo Opinion & Order—that dfts’ mtn for judgm on the pleadings or for s. j. is denied (Eubanks) w/s-zmc 1-21-77 Filed Plf’s Answers to Interrogs propounded by the United States—ws 4-1-77 JURY DOCKET: MONDAY, MAY 9, 1977—9:30 A.M.—EUBANKS 5-3-77 Filed 3 praes for & iss’d subps on behalf of plf for: Ernie Thomas, Jay Nay, Ray Pickle, Gary Sober, Curley Corwin, Bill Fisher & Rod Ylitalo 5-4-77 Filed prae for & iss’] 1 subp in blank on behalf of the dfts 5-9-77 Filed Pretrial Order (Eubanks) ws 5-9-77 Filed Govt’s PT Memo 5-9-77 Ent Jury Trial (Eubanks) zmc DATE PROCEEDINGS 5-10-77 Filed L.O. Ward’s Req for Instr w/Judge’s Rigs thereon (Eubanks) ws 5-10-77 Filed Instructions to the Jury (Eubanks) 5-10-77 Filed Note from Jury w/Judge’s Answer thereon (Eubanks) 5-10-77 Filed Jury’s Interrog finding as follows: that oil did flow in a visible quantity from the “draw” on the L.O. Ward lease into Boggy Creek /s/ Gary W. Chapman, Foreman 5-10-77 Ent Further Jury Trial; plf to prepare order; ct. reduces the amt of penalty to $250.00; ensl for dft to prepare order in 76-303 (Eubanks) zmec 5-13-77 Filed USM’s Ret re subps (8) 5-18-77 Filed Stephen Jones’ Itr to ct req’g a hrg date—ws 5-20-77 NONJURY: 6-13-77, 9:30 am (Eubanks) 6-7-77 Ent Order striking NJ of 6-23-77, to be reset on the next Civ NJ Dkt (Eubanks) zme ws 8-2-77 NONJURY: 9-6-77, 9:30 am (Eubanks) 8-19-77 Filed plf’s Response to the Gov’t Mtn to Strike w/Memo to Sup Response—ws 8-22-77 Ent Order that the Mtn to Strike by USA is o/r & denied; the cases will remain on the dkt for the pur- pose of getting judgs settled in these cases (Eubanks) zmc ws 8-24-77 Filed Ct’s ltr transmitting a portion of the Ct Re porter’s transcript of what transpired at Enid last spring, to all cnsl of Record (Eubanks) ws 8-30-77 Filed Stephen Jones’ Itr to Ct dated 8-26-77—ws 8-30-77 Filed Stephen Jones’ ltr to Ct dated 8-26-77, stated as 2nd ltr—ws 6 PROCEEDINGS DATE | 8-30-77 Ent Order that such evid as the ptys desire to ‘n- troduce re the constitutionality of 40 CFR 110.3(b), as enumerated in parag. 5C of the PTA Order herein, will be heard on 9-6-77, 9:30 am (Eubanks) zme ws 9-6-77 Ent Evid Hrg; ptys appear by cnsl, make opening stmts; plf Ward presents evid w/test of witnesses, exhs admitted, plf rests; closing args; ct finds in favor of govt who is to prepare JE in ea case today (Eubanks) zmc 9-6-77 Filed plf’s Brief in Sup of the Invalidity of 40 CFR § 110.3(b) ws 9-6-77 Filed AND ENTERED Final Judgment—THAT dfts L.O. Ward and L.O. Ward Oil and Gas Operations are jointly & severally liable to the US for a civil penalty of $250. (Eubanks) (CCB #122) (Clerk) (Copies to parties—zmc) 10-19-77 Filed Notice of Appeal of L. O. Ward, plf, from final jdgmt entered Sept. 6, 1977 (record due in CCofA 11-28-77) 10-19-77 Filed Clk’s ltr re service of notice of appeal, w/copy Itr & notice of appeal to counsel & CCofA and copy d.s. to CCofA 10-19-77 Filed plf’s Designation of Record—w/s 7 CIV-76-0456-E UNITED STATES OF AMERICA, PLAINTIFF Warp, L. O. and L. O. WARD OIL AND GAS OPERATIONS, DEFENDANTS Consolidated W/76-303 8-26-76 CAUSE 33 USC 1321(n) and 28 USC 1345—Action to recover unpaid civil penalty assessed against defts. FOR PLAINTIFFS David L. Russell, USA & AUSA, 4434 U.S. Cthse, OC, 231-5281 and Bruce J. Chasan, Atty, Dept of Justice, Wash, DC 20530 (202) 739-2793 Earl Salo, Atty, Dept of Justice, Wash, DC 20530 (202) 739-2738 Independent Petroleum Assoc. of America (Amicus Curiae) Harold B. Scoggins, Jr., Atty FOR DEFENDANTS Stephen Jones, P.O. Box 3339, Enid, OK 73701 DATE PROCEEDINGS 6-4-76 Filed Complaint 6-4-76 Filed prae for & iss’d summons 6-21-76 Filed USM’s Ret re Summons: (2) Served L. O. Ward 6-16-76 Served L.O. Ward Oil and Gas Operations by serving L.O. Ward 6-16-76 6-23-76 Filed dfts’ Mtn for Enlargement of Time to Answer Compl—ws 8 DATE PROCEEDINGS > 7-1-76 Filed dft Ward’s Mtn to Enlarge Time in Which to Answer—ws 7-6-76 Ent Order grntg dft L.O. Ward ext of time of 45 days from 7-1-76 to answer to otherwise plead (Daugherty) ve ws 8-23-76 Ent Order transferring case to Judge Enbanks (Daugherty) ve ws 8-26-76 Filed copy of Memo Opinion & Order filed in 76-303 in which Ct directs that answer be filed w/i 20 days here- of & this case is consolidated w/76-303 (Eubanks) ws 9-16-76 Filed Mr. Jones ltr to Ct requesting leave of ct to file answer one week late—w/s 9-16-76 Ent Order—for good cause shown, the defts Ware are granted 7 days from & after 9-15-76, w/in which to file their answer herein (Eubanks) zmc 10-4-76 PRETRIAL, November 1, 1976, 10:00 a.m. (Eu- banks) 9-24-76 Filed dfts’ Answer—ws 11-1-76 Filed dfts’ Mtn for Judg on the Pldgs &/or for SJ—ws 11-1-76 Filed dfts’ Brief in Sup of Mtn—ws 11-1-76 Ent PT; govt to file brief w/i 20 days to answer mtn for SJ; to be on the Enid jury dkt; both sides agree we will have a trial de novo; Ward may reply 7 days after Govt responds to its mtn for SJ (Eubanks) zmc 11-22-76 Filed plft’s Mmoe in Oppo to Mtn for Judg on the Pldgs &/or for SJ—ws 11-24-76 Filed pif’s Interrogs—w/s 12-7-76 Filed Plf Ward’s Reply Brief to Government’s Brief in Opposition to Ward’s Mtn for Judgm on the Pleadings &/orS. J. 9 DATE PROCEEDINGS 12-13-76 Filed Independent Petro. Assoc of Amer.’s mtn for lve of ct. to file brief amicus curiae 12-13-76 Filed Earl Salo’s ltr to Mr. Hawks enclosing a copy of a Ct’s decision dealing with the “sheen test”, requesting that it be brought to the cts’ attention. ws 12-22-76 Filed Memo Opinion & Order—that dfts’ mtn for judgm on the pleadings or for s.j. is denied (Eubanks) w/s—zmc 1-21-77 Filed dfts’ answers to interrogs w/s 4-1-77 JURY DOCKET: MONDAY, MAY 9, 1977—9:30 A.M.—EUBANKS 5-3-77 Filed 3 praes for & iss’d subps on behalf of L. O. Ward, for: Ernie Thomas, Jim Nay, Ray Pickle, Gary Sober, Curley Corwin, Bill Fisher, Rod Ylitalo 5-4-77 Filed prae for & iss’d 1 subp in blank on behalf of the plf 5-9-77 Filed Pretrial Order (Eubanks) ws 5-9-77 Filed Govt’s PT Memo 5-9-77 Ent Jury Trial (Eubanks) zmc 5-10-77 Filed L.O. Ward’s Req for Instr w/Judge’s Rigs thereon (Eubanks) ws 5-10-77 Filed Instructions to the Jury (Eubanks) 5-10-77 Filed Note from Jury w/Judge’s Answer thereon (Eubanks) 5-10-77 Filed Jury’s Interrog findings that oil did flow in a visible quantity from the “draw” on the L.O. Ward lease into Boggy Creek /s/Gary W. Chapman, Foreman 5-10-77 Ent Further Jury Trial; plt to prepare order; ct reduces the amt of penalty to $250.00 cnsl for dft to prepare order in 76-303 (Eubanks) zmc 5-13-77 Filed USM’s Ret re Subps (8) 5-18-77 Filed Stephen Jones’ Itr to Ct req’g a hrg date—ws 10 DATE PROCEEDINGS 5-20-77 NONJURY: 6-13-77, 9:30 am (Eubanks) 6-7-77 Ent Order striking NJ of 6-13-77, to be reset on the next Civ NJ Dkt (Eubanks) zmc ws 8-2-77 NONJURY: 9-6-77, 9:30 am (Eubanks) 8-16-77 Filed USA’s Mtn to Strike w/Brief in Sup—ws 8-22-77 Ent Order that the Mtn to Strike by USA is 0/r & denied ; the cases will remain on the dkt for the purpose of getting judgs settled in these cases (Eubanks) zmc ws 8-24-77 Filed Ct’s ltr transmitting copy of Ct Reporter’s portion of transcript of what transpired at Enid last spring (Eubanks) ws 8-30-77 Ent Order that such evid as the ptys desire to in- troduce re the constitutionality of 40 CFR 110.3(b), as enumerated in parag. 5C of the PT Order herein, will be heard on 9-6-77, 9:30 am (Eubanks) zmc ws 9-6-77 Ent Evid Hrg; ptys appear by cnsl, make opening stmts; plf Ward presents evid w/ test of witnesses, exhs admitted, plf rests; closing args; ct finds in favor of govt who is to prepare JE in ea case today (Eubanks). zmc 9-6-77 Filed dfts’ Brief in Sup of the Invalidity of 40 CFR § 110.3(b) ws 9-6-77 Filed AND ENTERED Final Judgment—THAT dfts L. O. Ward and L.O. Ward Oil and Gas Operations are jointly & severally liable to the US for a civil penalty of $250. (Eubanks) (COB +122) (Clerk) (Copies to parties—zmc) 10-19-77 Filed Notice of Appeal of dfts from final jdgmt entered Sept 6, 1977 (record due in CCofA 11-28-77) 10-19-77 Filed Clk’s ltr re service of notice of appeal, w/copy Itr & notice of appeal to counsel & CCofA and copy 4d.s. to CCofA 10-19-77 Filed dfts’ Designation of Record—w/s 11 GENERAL DOCKET UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Civil Case No. 77-1952 Appeal from the United States District Court For the Western District of Oklahoma 598 F.2d 1187 (1979) L. O. WARD, PLAINTIFF-APPELLANT Vs. WILLIAM G. COLEMAN, JR., individually and as Secre- tary of Transportation for the United States of Amer- _ lea, RUSSELL E. TRAIN, individually and as Adminis- trator of the Environmental Protection Agency of the United States of America, and ADMIRAL OWEN W. SILAR, individually and as Commandant United States Coast Guard, United States of America, DEFENDANTS- APPELLEES and UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE Vs. L. O. WARD and L. O. WarD OIL and GAS OPERATIONS, DEFENDANTS-APPELLANTS OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION, AMICUS CURIAE INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA, AMICUS CURIAE ENERGY CONSUMERS AND PRODUCERS ASSOCIATION, INC., AMICUS CURIAE MOUNTAIN STATES LEGAL FOUNDATION, INDEPENDENT PETROLEUM ASSOCIATION OF THE MOUNTAIN STATES, and RocKy MOUNTAIN OIL and GAs ASSOCIATION 12 ATTORNEYS FOR APPELLANT (a) Stephen Jones (Ward) Jones & Gungoll P.O. Box 3339 Enid, Oklahoma 73701 (405) 233-4321 For Independent Petroleum Association of America (a) Harold B. Scoggins, Jr. 1101 16th Street, N.W. Washington, D.C. 20036 (202) 466-8240 ATTORNEYS FOR APPELLEE For Okla. Independent Petroleum Assn. as Amicus Curiae (a) Terry R. Doverspike W. Bland Williamson Pray, Scott, Williamson & Marlar 2910 Fourth National Bldg. Tulsa, Oklahoma 74119 (918) 583-1366 For Energy Consumers & Producers Assn. Amicus (a) Fred Gipson P.O. Box 1641 Seminole, Oklahoma 74368 (405) 382-5555 For Mountain States Legal Foundation, et al: Kea Bardeen (a) James G. Watt 1845 Sherman Street Denver, Colorado 80028 (303) 861-0244 13 DATE PROCEEDINGS 11/22/77 Cause docketed; docketing statement, orig. & 9 ce. 11/30/77 Copy of Dist. Ct. order extending time to file record to 12/28/77. 12/3/77 Appearance—Appellant (Ward)—Jones 12/23/77 Record on apeal, Vol. I, II (pleadings) (686 pp.), Vols. III, IV (exhibit) (17 pp.), Vols. V, VI (transcript) (208 pp.), orig. (911 pp.) 12/19/77 Appearance—Appellee, Moorman, Strass, McCord 12/29/77 Order—Assigned to Calendar B—Appellant’s brief due 1/19/78—Seth 1/16/78 Appellant’s (Ward) motion for ext to 2/16/78 to file brief—Orig. only, Order: Appellant GRANTED to 2/16/78 to file brief—HKP—cons] ntfd. 4/4/78 Mot of Okla. Independent Petroleum Assn. for leave to file brief amicus curiae w/consent, O & 13 cc, c/s (replaced by mot filed 4/5/78) Brief of Okla. Independent Petroleum Assn. as Amicus Curiae, O & 13 cc, c/s (RECEIVED) (replaced by brief attached to mot filed 4/5/78) 4/5/78 Mot of Okla. Independent Petroleum Assn. for leave to file brief amicus curiae w/consent, w/brief attached, O & 13 ce, c/s, replacing mot filed 4/4/78 w/brief attached (to panel) BRIEF FILED 4/17/78 Appearance—Amicus Curiae—W. Bland Williamson, Terry R. Doverspike 4/14/78 Appellee (U.S.A.) mot for ext to 5/1/78 to file brief, O & 8 cc, c/s Order—appellee (U.S.A.) GRANTED to 5/1/78 to file brief—HKP—cnsl notf 14 DATE PROCEEDINGS 4/17/78 Order—motion for leave to file a brief amicus curiae by Oklahoma Independent Petroleum Association is granted; brief ordered filed as of 4/17/78—Lewis, Mc- Williams Amicus’ brief O & 25 cc, c/s (Energy Consumers & Pro- ducers Assn) 5/1/78 Appellee’s (U.S.A.) mot for ext to 5/11/78 to file brief, O & 3 cc, c/s Mot of Independent Petroleum Assn. for leave to file brief amicus curiae & for ext to 5/1/78 to file brief, O & 4 cc, c/s (to panel 5/3/78) Brief of Independent Petroleum Assn. as amicus curiae, O&4cc 5/2/78 Order—appellee (U.S.A.) GRANTED to 5/11/78 to file brief—HKP—cns] note 5/8/78 Order: Upon consideration, Independent Petroleum Association of America is GRANTED leave to file a brief amicus curiae. Brief is ordered filed as of May 1, 1978. Appellees’ consent to filing brief amicus curiae by Energy. Consumers & Producers Assn, O only 5/15/78 Appellee’s (U.S.A.) mot for ext to 5/22/78 to file brief, O & 3 cc, c/s Order—appellee GRANTED to 5/22/78 to file brief. No further extension will be granted—RLH—cns! notf’d 5/17/78 Appearance—Amicus Energy Consumers—Fred Gipson 5/30/78 Appellee’s (USA) brief, O & 9 cc, c/s 6/2/78 Appellant’s mot for ext to 6/30/78 to file reply brief, 0 &38cc Order—appellant GRANTED to 6/30/78 to file reply brief—RLH—UOLZeUd 310 oCAL nts | if Ie: Oe oo ie if 5 ysis 1¢ ; LdS JO asney = . - - e * 9 “VG? fF a LEAD #: VEU PY Ape tL Ltds $0 99495 20 OMe if ro4 y = St aor ‘ - ef ee pUNONY a y 72 ‘PaLLIAS [2b4o} 2] 3 : e 5 7 te A Ck: cs ss $I D6! fe Ue 7A og » (ia c / — poy ge ge *3 77 Ta 7 *paysessy Aped Joti 4 Ate , Butog — OuIL I LIED " ayeq :paddois LLECS ° atts gn FT fre : ; -up . Be Ftd A ni awh) 7 ZaxJr me? / . 938 spasinoo9 LLtds res Yas? ad oe a gpa Sa ep ot Sig Pee ey ae Ler Gas Pes 1é i. SA €) ‘new iy, $3 4 i Ey tf - Pad 507 id } “i // F sf str ee vw ¢ a ef wD UOLIESO] LLEGS -* , ‘ ; ra . de £ af TH ° ae ee ee ae ys SSOAPPY eee Wh JIE 7, ¢7 ZH ay me ‘ Pg f 2A ae J DEE? role lds — s F sae 17 YO i Burqucday UdS.to4 “se : w thf > "ON 93Sey = ee saourpsqns snepizzey pur oe, = Cm :Aq PdALII9y) one-car ee Onn “OT “gl yl el “ol “OL L$0 ——--- —_- se ee sou te op iy 793 2q Wiod Lucddd Vilds — 2 7) Sok 2qucumorojyuy 03 Xdog ” ol 18 pal sn ssseleas Tbr fait 4 19 CERTIFIED MAIL: RETURN RECEIPT REQUESTED (819436) Lou Ward Box 1187 Enid, Oklahoma 73701 e Gentlemen: The Environmental Protection Agency has received a report that your company was involved in the discharge of a harmful quantity of oil, estimated to be 840 gallons into waters of the United States, to wit: An unnamed tributary of Boggy Creek near Enid, Garfield County, Oklahoma on or about March 23, 1975 from a facility which you own (or operate). The 1972 Amendments to the Federal Water Pollution Control Act (hereinafter, the “Act’’) prohibits the dis- charge of oil or a hazardous substance into or upon the waters of the United States in harmful quantities [33 U.S.C. 1821(b) (3)]. Any owner or operator of a vessel or facility from which oil or a hazardous substance is discharged shall be assessed a civil penalty by the Coast Guard of not more than $5,000 [33 U.S.C. 1321 (b) (6) }. The definition of harmful quantities of oil appears in Title 40, Code of Federal Regulations, Section 110.3. In order for this Agency to carry out its responsibilities under the Act, you are required under authority of Sec- tion 308 of the Act (33 U.S.C. Section 1318) to submit a letter of explanation including the specific information listed in Attachment A. The letter of explanation must be submitted to: Mr. Ralph Corley, 1600 Patterson, Suite 1100, Dallas, Texas 75201, within fourteen (14) days of receipt of this let- ter. It must be signed by a duly authorized official of the corporation or company. The information submitted will be considered in evaluating whether the oil spill violated Section 311. [Please note that your reply in no way constitutes immediate notification of a spill to the ap- propriate Federal agency, as required by Section 311 (b) (5).] Section 309 of the Act (33 U.S.C. Section 20 1319) provides civil and criminal penalties for failure to submit information required under Section 308 and crimi- nal penalties for knowingly making a false statement in any submission under Section 308. 6AEEL:RCorley :x2142:WPC :sh: AEEL-11 :x3855: 5/13/75 6AEEL Benthul [Illegible] 5/29/75 If you have any questions, please contact Ralph Corley, Attorney, Legal Branch, Enforcement Division, at (214) 749-2142. Sincerely yours, Original Signed by James J. Doyle Director Enforcement Division Attachment 21 ATTACHMENT A The following information is submitted concerning F7S- 1. Time and date of discharge: Time unknown, March 23, 1975. 2. Location of discharge, including: A. Name of Municipality and State: Enid, Okla- homa. B. Name and address of industry or commercial establishment at which the discharge oc- curred: L. O. Ward, Operator, Blansit #2 Well SL/4 Section 17-22N-6W, Garfield County, Oklahoma. C. Distance from receiving waterway: Esti- mated 100 yards. D. Name of receiving waterway, or first named waterway into which it flows: Boggie Creek. . Type of material discharged: Oil. . Quantity discharged: 20 bbl. or 840 gallons. . Quantity of material which eventually reached the receiving waterway, and date and time it was dis- covered: Estimated 5-15 bbl. (Approximately 10-15 bbl. recovered.) Discovered PM March 24, 1975. - Type of vessel or facility (Ship, Barge, Storage Tank, Tank Truck, ete.) in which the oil was origi- nally contained: Open earth working pit. (Pits used during drilling operations. ) . Describe in detail what actually caused the discharge: Oil had been produced during a short isolated test from a second zone in the well. The test volume of oil remained in the working pit for 90 days after the completion crew had been released. Unusually high rainfalls, accompanying extremely turbulent weather filled the pits and caused overflow which floated down 10. 11. 12. 13. 22 to the run off tributary. Company personnel were unaware, at the time, of pit filling due to the unac- cessable location during the inclement weather. Name and address of owner of facility causing the discharge: L. 0. Ward, Operator et al Box 1187, Enid, Oklahoma 73701 Name and address of operator of facility causing the discharge: Same as above. Describe damage to the environment: Environment affected was Native Grass. No damage to the vegeta- tion or other environment. Vegetation is growing as normal. Described steps the above named owner or operator took to clean up the spilled oil and dates and time steps were taken: March 24. Upon discovery of the spill, teams of men were immediately dispatched to the spill area. Outside help was employed along with company personnel. They employed barriers made of wood and straw, plus tank trucks to pick up any available free oil. The oil soaked straw and alfalfa were transported from the area for separate contain- ment. This activity lasted for three days. For sev- eral days straw and alfalfa dams were replaced daily to insure all oil being retrieved. Then a power wash unit was employed to wash residue which ad- hered to the grass and bruch. This fluid was also picked up. It was later advised we burn any residue debris. The clean operation was successful in full restoration of the area. Action by company to mitigate damage to the envi- ronment: See 11. above. Measures taken by your company to prevent future spills: The pits were filled with a dozer. Straw and absorbents are stored for emergency use. Dikes are being used in facility to restrain migration. 23 14. Was water flowing into receiving waterway during 15. 16. spill or clean-up?: Yes, Boggie Creek is a continuous flowing body of water. List the Federal and State Agencies to which the owner or operator named in 8. and 9. above reported this discharge: Agency Location Official EPA, Federal Agency _ Dallas, Texas David Curtis Oklahoma Corp. Comm. Kingfisher, Lloyd Barrier State of Oklahoma Oklahoma City of Enid, Oklahoma Enid, Oklahoma Monty Montgomery County Health Dept. Garfield County, Oklahoma (see attached letter) List the names and addresses of persons you believe have knowledge of the facts surrounding this in- cident: Curly Corwin Bill Fisher Rod Ylitalo 2135 Sundown Circle 1310 Gannon 138 Margaret Circle Enid, Oklahoma Enid, Oklahoma Enid, Oklahoma Submitting this report does not constitute an ac- knowledgement of violation of any rules, regulations or laws of the Environmental Protection Agency. The undersigned believes the occurrence was unfor- tunate, but that the quantity involved did not con- stitute a hazardous material. The undersigned also believes that the incident was handled prudently and responsibly. The above answers are true to the best of my knowl- edge and belief. Date of Signature: [illegible] Signature of person completing this report /s/ [L. O. Ward] Case No.: F7S-652 24 [SEAL] UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VI 1600 Patterson Dallas, Texas 75201 [Received Aug. 15, 1975] Commander J. D. Webb (MEP) Second U.S. Coast Guard District Federal Building 1520 Market Street St. Louis, Missouri 63103 Re: Our File F75-652 Dear Commander Webb: Transmitted herewith is evidence which documents vio- lation of 33 USC 1321(b) (3) by L. O. Ward, Box 1187, Enid, Oklahoma 73701. We request that a civil penalty be assessed against L. O. Ward pursuant to 33 USC 1321 (b) (6). The alleged violation resulted from an oil spill into Boggie Creek, Garfield County, Oklahoma, on or about March 28, 1975. Approximately 10 barrels of oil were discharged into Boggie Creek. All information trans- mitted herewith was submitted by discharger pursuant to 33 USC 1318. We recommend that a civil penalty in the range of $500 to $1000 would be appropriate for this spill. Our recommendation is based upon an evaluation of the gravity of the violation, an assumption that a penalty with the suggested range will not have a significant effect upon L. O. Ward to continue in business, and upon our judgment that such a penalty is appropriate considering the size of the company. Please keep this office advised of the progress of this ease. If you need assistance or additional information, 25 please contact Mr. Ralph Corley at (214) 749-2142 in Dallas, Texas. Sincerely yours, /s/ Harless R. Benthul HARLESS R. BENTHUL Chief, Legal Branch Enforcement Division Enclosure (s) 26 [SEAL] DEPARTMENT OF TRANSPORTATION UNITED STATES COAST GUARD Mailing Address: U.S. Coast Guard (G-LMI/81) Washington, D.C. 20590 Phone: 202-426-1527 5830/5-2 11 Feb. 1976 [Ree’d Feb. 16] Jones & Gungoll Attention: Stephen Jones, Esq. P.O. Box 3339 Enid, Cklahoma 73701 Gentlemen: The Commander, 2nd Coast Guard District, St. Louis, Missouri, has forwarded the file in Penalty Case No. 2P50770, including your appeal on behalf of Mr. L. O. Ward, owner of the oil drilling facility involved. The appeal is from the action of the District Commander in assessing a penalty of $500.00 against the company un- der the authority of section 1321(b) (6) of Title 33, U.S. Code (section 311(b) (6) of the Federal Water Pollu- tion Control Act) for violation of section 1321(b) (3) which prohibits the discharge of oil in harmful quantities into or upon the waters of the United States. The as- sessment was based on the finding that a harmful quantity of oil, estimated at 840 gallons was discharged from the facility into Boggie Creek, Garfield County, Oklahoma, on 23 March 1975. The discharge occurred when a oil drilling facility overflowed during a heavy rainfall. Your appeal is denied for the reasons stated below. First, you contend that the statute upon which the pro- ceeding is based and the requirement to submit a written statement to report a discharge is unconstitutional. 27 You further argue that the penalty assessed is contrary to the weight of the evidence and that the penalty is excessive. The constitutionality of various provisions of the Act is not, of course, a matter which can be decided by the Coast Guard. It is the mandate of Congress as expressed in the Federal Water Pollution Control Act that there shall be no dis- charges of oil into or upon the waters of the United States. The Act provides that a penalty of not more than $5,000.00 shall be assessed against the owner or operator of any vessel or facility from which oil is dis- charged in harmful quantities. The statute requires that the following factors be considered in determining the amount of the penalty to be assessed: the appropriate- ness of the penalty to the size of the business of the owner or operator; the effect on the owner’s or operator’s ability to continue in business; and the gravity of the violation. It is not necessary to find intent or negligence, as the law prohibits any discharge of a harmful quantity of oil. In all oil pollution incidents it is incumbent upon the person in charge to immediately notify the Coast Guard of such discharges. A failure to do so is a criminal act subjecting such persons (which includes an individual, firm, corporation, association or partnership), to a fine of not more than $10,000.00 or imprisonment for not more than one year, or both. It is felt that there is sufficient evidence shown in the record to warrant the penalty assessed in this case. The entire record has been reviewed and the penalty assess- ment is considered fair and reasonable. To carry out the intent of the law it is the policy of the Coast Guard to assess a pénalty at or near the maxi- mum unless a lesser penalty is clearly justified. I have reviewed the arguments raised in your appeal and find that proper consideration has been given to the applicable 28 provisions of law in evaluating the facts in this case. The assessed penalty of $500.00 is approved. The penalty of $500.00 is due and must be paid within 30 days from the date of receipt of this letter. Payment should be made by check or money order payable to the U.S. Coast Guard and forwarded to the Commander, 2nd Coast Guard District (dl), Federal Building, 1520 Mar- ket Street, St. Louis, Missouri 63103. Failure to make payment within the period prescribed will result in the ease being forwarded by the District Commander to the U.S. Attorney for appropriate action. Sincerely, /3/ R. A. Ratti R. A. RATTI RADM, U.S. Coast Guard Chief Counsel ee 29 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKALHOMA [Filed May 9, 1977] No. CIV-76-0303-E L. O. WARD, PLAINTIFF v8. WILLIAM G. COLEMAN, JR., individually and as Secretary of Transportation, et al., DEFENDANTS No. CIV-76-0456-E UNITED STATES OF AMERICA, PLAINTIFF vs. L. O. WARD and L. O. WARD OIL and GAS OPERATIONS, DEFENDANTS PRE TRIAL ORDER As a result of the pre trial conference held herein, where Plaintiff was represented by Stephen Jones and the Defendant United States of America by Richard Camp- bell, their attorneys of record, the following issues of fact and law were framed, stipulations made, and other matters considered and ordered as follows: 1. The contentions of the United States of America are as follows: A. On or about March 23, 1975, an estimated twenty barrels (840 gallons) of oil and drilling mud overflowed from an open earth pit at a drilling site owned and operated by L. O. Ward near Boggy Creek, Garfield County, Oklahoma. That a harmful quantity of oil and drilling mud, approximately ten barrels, flowed from the 30 discharge site into Boggy Creek, Garfield County, Oklahoma. B. Boggy Creek is a navigable water of the United States within the meaning of 33 U.S.C. § 1862(7). C. That the aforesaid discharge was a violation of 33 U.S.C. § 1321 (b) (3). D. That the United States Coast Guard through Commander J. D. Webb assessed an appropriate and rea- sonable fine against L. O. Ward in the nature of a penalty and that said Commander Webb reviewed all of the material in his file in order to consider the size of Defendant’s business, the affect of the penalty on De- fendant’s ability to continue in business and the gravity of the violation. E. L. O. Ward has not paid the $500.00 civil penalty imposed by Commander J. D. Webb after due demand has been made. 2. L.0O. Ward’s contentions are as follows: A. That the provisions of 33 U.S.C. § 1818(a) (4) (A) (ii), 88 U.S.C. § 1819(c) (1), 83 U.S.C. § 1821 (b) (5) (6) and 40 C.F.R. §110.1(L) and 110.4(b) are un- constitutional as being violative of the Fifth Amendment of the United States Constitution. B. Boggy Creek is not a navigable stream within the meaning of the Act. C. Acting pursuant to the above mentioned statutes, L. O. Ward submitted to the Environmental Protection Agency, and its agents, a written report of the alleged oil spill. Said report being prepared and filed pursuant to the provisions of 33 U.S.C. § 1818(a) (4) (A) (ii). D. The only material furnished to the Coast Guard and the only basis upon which the penalty was deter- mined against Mr. Ward was the material that Ward had previously submitted to the United States Environmental Protection Agency as outlined above. E. That the statutes and procedures relied upon by the United States of America and the Defendants in case number CIV-76-0303 are violative of the Fifth Amend- ment to the Constitution of the United States. F. That the spill was caused by an act of God or other acts beyond the control of L. O. Ward and that no 31 penalty should be assessed against him on the grounds that Ward is without fault in the premises. G. That upon notice of the spill Ward undertook all proper steps to remove oil from water, prevent it from going to a navigable stream and otherwise safeguard the surrounding environment. 3. Admitted facts: A. The identification of the parties, the venue, juris- diction, residence, and citizenship is admitted except that William Coleman is no longer Secretary of Transportation but that the position has been filled by the Honorable Brock Adams. B. L. O. Ward is engaged in a business operation as an independent oil and gas producer with his place of business at 1420 Lahoma Road, Enid, Oklahoma. C. On or about March 23, 1975, a drilling facility owned and operated by L. O. Ward sustained a dis- charge of oil. D. Thereafter, notification was made of the spill to the United States Environmental Protection Agency by L. O. Ward or his agents. On or about June 24, 1975, Ward submitted to the Environmental Protection Agency and its agents a written report of the alleged oil spill. Said report was prepared as required by law. EK. Thereafter, on August 15, 1975, agents of the De- fendant Train, acting pursuant to law, notified J. D. Webb, Commander, Second United States Coast Guard District, in St. Louis Missouri, of the alleged violation by Ward of 33 U.S.C. § 1821(b) (ec). The United States Environmental Protection Agency, headed by the Defend- ant Train, and acting pursuant to his directions, requested of the Coast Guard that a civil penalty be assessed against the Plaintiff L. O. Ward pursuant to 33 U.S.C. § 1821 (b) (6). F. On December 19, 1975, Commander J. D. Webb act- ing on behalf on the Commandant of the Coast Guard assessed a penalty of $500.00 against L. O. Ward be- — of a finding of a violation of 33 U.S.C. § 1821 (b) G. Thereafter, L. O. Ward notified J. D. Webb of his desire to appeal and the appeal was subsequently denied. 32 H. At all material times herein, L. O. Ward has as- serted as a defense that the statute upon which the pro- ceedings were based is unconstitutional, that the require- ment that he submit a written statement to report any violations was unconstitutional and that the penalty of $500.00 was contrary to the rate of the evidence and the imposition was unconstitutional. I. L. O. Ward exhausted all administrative remedies prior to the filing of this suit. | 4. Was the spill which occurred on March 23, 1975, the result of negligence by L. O. Ward or his agents and servants or was it caused by events beyond his con- trol and/or an act of God. B. Did a harmful quantity of the discharge reach Boggy Creek, Oklahoma. C. The amount of the fine to be imposed, if any. 5. Contested issues of fact and law to be determined by the Court: A. Boggy Creek is a tributary of Skeleton Creek which is a tributary of the Cimarron River which is a tributary of the Arkansas River. B. Are the statutes and procedures set forth above and relied upon by the United States of America and the Defendants in CIV-76-0303 violative of the Constitution of the United States of America. | C. Are the provisions of 40 C.F.R. 110.3(b) which provides in part that a discharge of oil which causes a “film or sheen or discoloration of the surface of the water” constitutes a harmful quantity, arbitrary, un- fair, capricious, and contrary to the intent of the Con- gress, and therefore, an unreasonable exercise of the dele- gated power and inconsistent with 33 U.S.C. § 1321 (b) (6) and in violation of the Constitution of the United States of America. 6. The parties are directed to exchange witness lists by May 2, 1977, and the same is to be part of the pre trial order as though fully copies at length herein. The parties are to furnish the Court requested instructions and trial briefs by May 5, 1977. All discovery is to be completed by May 5, 1977. This matter is ordered for 33 trial on the civil jury docket beginning May 9, 1977, at 9:30 A.M. in the United States Courthouse at Enid, Oklahoma, 115 West Broadway. 7. All exhibits to be introduced are to be marked in advance and to be available for inspection by opposing counsel at least six days before the trial date: to wit, May 3, 1977. The exhibits of all parties thus marked and produced for inspection may be received in evidence if otherwise admissible without further authentication, it being admitted that each is what it purports to be. Should either party object to stipulating to authenticity and identification of the exhibit, it will notify the other party at least five days before trial in writing: to wit, May 4, 1977. The foregoing pre trial order has been approved by both parties hereto, as evidenced by the signatures of their counsel hereon, and this order is hereby entered, as a result of which the pleadings passed out of the case and the issues as joined herein be the issue to be tried, and this pre trial order shall not be amended, except by order of the Court pursuant to agreement of the parties or to prevent manifest injustice. Dated in Oklahoma City, this 6 day of May 1977. /s/ (Tllegible] United States District Judge Approved as to form: /s/ Stephen Jones STEPHEN JONES Attorney for Plaintiff /s/ Richard Campbeli RICHARD CAMPBELL Attorney for Defendant 34 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA Civil No. 76-0456-E Consolidated [Filed Sep. 6, 1977] L. O. WARD, PLAINTIFF —vs.— WILLIAM G. COLEMAN, JR., individually and as Secretary of Transportation for the United States of America, RUSSELL E. TRAIN, individually and as Administrator of the Environmental Protection Agency of the United States of America, and ADMIRAL OWEN W. SILAR, in- dividually and as Commandant United States Coast Guard, United States of America, DEFENDANTS Civil No. 76-0303-E UNITED STATES OF AMERICA, PLAINTIFF —vs.— L. O. WARD & L. O. WARD OIL AND GAS OPERATIONS, DEFENDANTS FINAL JUDGMENT The United States seeks to collect a $500 penalty which has been administratively assessed against L. O. Ward by the United States Coast Guard pursuant to 33 U.S.C. 35 § 1321(b) (6) for an alleged discharge of oil into navi- gable waters. The Court has already found that the penalty imposed was civil in nature, that the self-report- ing provision of 33 U.S.C. § 13821(b) (5) does not violate the Fifth Amendment’s protection against self-incrimina- tion, that the imposition of a penalty after notice and hearing withstands constitutional attack, and that the definition of “harmful quantities” of oil at 40 C.F.R. § 110.3 is a valid regulation under 33 U.S.C. § 1321(b) (4). Ward v. Coleman, 423 F.Supp. 1352. The case was tried to a jury on May 10, 1977. The parties had stipulated that a facility owned and operated by Ward sustained a discharge of oil on or about March 23, 1975. At trial, the following additional facts were established by undisputed testimony. The dis- charge resulted when the entire contents of a shale pit connected to Ward’s drilling operations drained out. Some of the oil reached a small draw near the shale pit. Some of the oil flowed down the draw, and some was deposited on the banks of the draw, and on vegetation in the draw. The draw flows in a northerly direction, and enters Boggy Creek at a point approximately 2000 feet north of the point where the oil entered the draw. Some of the oil flowed at least as far as a point about 100 feet from the confluence of the draw with Boggy Creek. Although defendants’ witnesses denied that any oil reached Boggy Creek, the Court concluded that the jury could reasonably find that oil in a harmful quan- tity’ did reach Boggy Creek. The Court submitted an interrogatory to the jury. In response, the jury found that oil did flow in a visible quantity from the draw into Boggy Creek. The parties had stipulated that Boggy Creek is a tributary of Skeleton Creek, which is a tributary of the Cimarron River, which is a tributary of the Arkansas River. The Court takes judicial notice that the Arkansas River is navigable in fact. The Court concludes that ’“Harmful quantity” has been administratively defined to in- clude discharges which “. . . cause a film or sheen or discoloration of the surface of the water. . .”, 40 C.F.R. § 110.3(b). 36 boggy creek is a navigable water of the United States for the purposes of the Federal Waiter Pollution Control Act, pursuant to 33 U.S.C. 1362(7). Untied States v. Ash- land Oil and Transportation Co., 504 F.2d 1817 (C.A. 6, 1974); United States v. Phelps Dodge Corp., 391 F. Supp. 1181 (D. Ariz., 1975). The Court concludes that Ward is liable for a civil: penalty under 33 U.S.C. § 1821 (b) (6), inasmuch as he is the owner and operator of an onshore facility from which oil was discharged in harmful quantities into the navigable waters of the United States. The penalty to be imposed is a question for the Court. United States v. J. B. Williams Co., 498 F.2d 414, 438 (C.A. 2, 1974) ; United States v. ITT Continental Baking Co., 485 F.2d 16, 21 (C.A. 10, 1973). The Court re- ceived evidence on two matters that it found relevant to the reasonableness of the penalty assessed by the Coast Guard. First, there was evidence concerning the cause of the discharge. This evidence was inconclusive. Second, there was undisputed testimony that Ward had his em- ployees and independent contractors conduct clean-up operations beginning on March 25, 1975.2 The Court finds that the cause of the spill is unknown, and that Ward’s clean-up operations were good, and that $500 is therefore | an excessive penalty. The Court therefore reduces the penalty to $250. The Court granted Ward’s request for a second hear- ing, over the objections of the United States. At that hearing, the Court received evidence on the harmful effects of oil on domestic animals, wildlife, aquatic life and vegetation. Two expert witnesses called by Ward denied that the mere presence of a sheen could establish that an oil discharge was toxic. One of these witnesses also stated, however, that a quantity of oil that produced a rainbow sheen might have a harmful effect on aquatic life. The evidence also showed that the presence of a sheen demonstrated that a finite amount of oil had been : The Government objected that evidence of Ward’s clean-up oper- ations was irrelevant to the size of the penalty, citing United States v. W. B. Enterprises, 378 F.Supp. 420, 422 (S.D.N -Y., 1974). 37 discharged, and that the minimum amount spilled could be determined from the size and appearance of the sheen. Finally, the evidence showed that it would be adminis- tratively unworkable to require that every discharge of oil be scientifically analyzed before it could be deemed “harmful” for the purposes of 33 U.S.C. § 1321. The Court therefore reaffirms its conclusion that the defini- tion of harmful quantities at 40 C.F.R. § 110.3, and in particular, the “sheen test” at 40 C.F.R. § 110.3(b), are lawful and constitutional. United States v. Boyd, 491 F.2d 1163 (C.A. 9, 1973) ; United States v. Chevron Ol Co., 9 ERC 1503 (E.D. La., 1976). IT IS THEREFORE ORDERED AND ADJUDGED that defendants L. O. Ward and L, O. Ward Oil and Gas Operations are jointly and severally liable to the United States for a civil penalty of $250. /s/ Luther B. Eubanks United States District Judge APPROVED AS TO FORM: /s/ Earl Salo EARL SALO Attorney, Department of Justice Washington, D.C. 20530 /s/ Stephen Jones STEPHEN JONES Attorney for L. 0. Ward P.O. Box 3339 Enid, Oklahoma 38 UNITED STATES COAST GUARD 23 FEB 1973 COMMANDANT INSTRUCTION 5922.11A Subj: Pollution Law Enforcement 1. Purpose. This instruction promulgates guidance for the assessment of civil penalties pursuant to Section 311 (b) (6) of the Federal Water Pollution Control Act (FWPCA). 2. Cancellation. Commandant Instruction 5922.11 is cancelled. 3. Discussion. a. It is Coast Guard policy that every reported or discovered discharge of oil be investigated and that every discharge in violation of Section 311(b) (6) result in the assessment of a civil penalty. b. In cases with extenuating circumstances, mitigation may be considered upon review and a compromise amount agreed upon. In those cases, the assessed penalty will become a matter of record as well as the compromise action taken. c. In determining the amount of a penalty, only the factors set forth in the Act shall be considered. In this way, it is anticipated that the general level of penalties will be raised to a more meaningful level. 4. Action. a. Enclosure (1) shall be used as the guideline for the assessment of a civil penalties pursuant to Section 311 (b) (6), FWPCA. A » 39 b. Information contained herein is intended to be used in conjunction with the National Contingency Plan as implemented by COMDTINST 3020.3 series. /s/ J. D. McCann J. D. MCCANN Acting Chief Office of Marine Environment and Systems Encl: (1) Coast Guard policy for the application of Civil penalties under Section 311(b) (6), FWPCA Enclosure (1) to COMDTINST 5922.11A 23 FEB 1973 COAST GUARD POLICY FOR THE APPLICATION OF CIVIL PENALTIES UNDER SECTION 311 (b) (6), FWPCA Consistent with the language of the Federal Water Pollu- tion Control Act, Coast Guard policy requires the assess- ment of a civil penalty for each discharge of oil in vio- lation of Section 311(b) (3). A maximum penalty of $5,000 is authorized by Section 311(b) (6) ; however, the drafters of the Act envisioned lesser penalties in certain circumstances. Section 311(b) (6) provides that, “In de- termining the amount of the penalty . . . the appropriate- ness of the 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 .. .” That is to say that the penalty might be less than $5,000 for a small business, for a business which would be forced out of operation by the maximum penalty, or for a violation of minor gravity. It should be noted, however, that these factors are not to be considered in determining whether a discharge should be investigated or whether a penalty should be assessed. The statute requires that a civil pen- alty be assessed for each violation of Section 311(b) (3). 40 It is Coast Guard policy to assume that the penalty will be at or near the maximum unless a lesser penalty is clearly justified by one of the factors listed in Section 311(b) (6). A number of considerations may be made in determining the gravity of a violation, such as the degree of culpa- bility associated with the violation, the prior record of the responsible party, and the amount of oil discharged. Sub- stantial intentional discharges should result in severe penalties, as should cases of gross negligence, and so on. This is not to suggest that other considerations may not combine to determine the gravity of a violation. Two factors should not be considered in fixing the amount of a civil penalty: (1) the responsible party’s removal effort or expense and (2) a decision by Federal and/or state authorities to bring criminal action for the same discharge. Liability for a civil penalty under Section 311(b) (6) attaches at the time of discharge. It is en- tirely unrelated to the subsequent removal responsibility for which the discharger must bear the expense, either directly or by reimbursing the Pollution Fund. In no case may a responsible party avoid or reduce a civil penalty by removing the discharged oil. Federal or state criminal prosecutions for the same discharge do not af- fect the imposition or amount of a civil penalty. Criminal prosecutions are brought under separate authority such as the Refuse Act of 1899. They are neither intended as substitutes for civil penalties nor do they create a legal bar to subsequent civil penalties. Civil penalties should, therefore, be assessed for all violations of Section 311(b) (3) without regard to pending or anticipated criminal action. 41 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA Case No. CIV-76-0303-E Consolidated L. O. WARD, PLAINTIFF vs. WILLIAM G. COLEMAN, JR., ET AL., DEFENDANTS & Case No. CIV-76-0456-E UNITED STATES OF AMERICA, PLAINTIFF vs. L. O. WARD & L. O. WARD OIL & GAS OPERATIONS, DEFENDANTS TRANSCRIPT OF PROCEEDINGS HAD BEFORE THE HONORABLE LUTHER B. EUBANKS UNITED STATES DISTRICT JUDGE, AND A JURY ON MAY 9TH, 1977 IN ENID, OKLAHOMA Reported by: KEN COURTEMANCHE, C.S.R. EE ————————eEoE*wem=_ eee ae 42 APPEARANCES JONES & GUNGOLL, Attorneys and Counsellors at Law, P.O. Box 3339, Enid, Oklahoma, 73701, BY: MR. STEPHEN JONES, appearing on behalf of the Plain- tiff in Case No. CIV-76-0303-E and appearing on behalf of the Defendant in Case No. CIV-76-0456-E. MR. EARL SALO, United States Attorney, Depart- ment of Justice, Washington, D.C., 20530, appearing on behalf of the Defendant in Case No. CIV-76-0303-E and on behalf of the Plaintiff in Case No. CIV-0456-E. * * * * [43] THE COURT: If you want the exhibits all re- ceived at this time, we’ll do it, or as you need them, at your election. [44] MR. JONES: We have no objection to his ex- hibits and I believe he has none to ours, as to identifi- cation and authenticity. THE COURT: What are the numbers of them, could you give us those? THE CLERK: Plaintiff’s 1 and 2 and Defendant’s 1 thru 7. MR. JONES: May I have just a minute, Your Honor? THE COURT: Yes. MR. JONES: Your Honor, we have no objection to the identification and authenticity of Plaintiff’s 1, but because of the issues previously raised, which the Court is familiar with, involving the Fifth Amendment, we object to Plaintiff’s Exhibit 1 on the grounds that it’s in violation of the self-incrimination clause in that this is a criminal count—or civil count. THE COURT: Very well. Let me make this obser- vation to the Jury: I’m going to receive the evidence over the objection of the Defendant and at the same time conceding that in my opinion it’s a very, very close ques- tion. That’s a matter to be ruled on in connection with the Pretrial Motions, in order to protect his record, and to keep his position consistent, Mr. Jones must object to it. | ; j j / ' : 43 MR. JONES: I have no objection to the other ex- hibits. THE COURT: Fine. Government’s Exhibits 1 and 2 will [45] be received. The Defendant’s Exhibits 1 thru 7 will be received into evidence. Go ahead, Mr. Salo. GARY SOBER called as a witness on behalf of the Government, after having been first duly sworn to tell the truth, the whole truth, and nothing but the truth, testified as follows, to-wit: DIRECT EXAMINATION QUESTIONS BY MR. SALO: Would you state your full name, please? Gary Sober. Where do you live, Mr. Sober? Right now I live in Edmond. Could you give the address for the record? 3577 Wagonwheel Road. All right. Where do you work, Mr. Sober? I work for the Oklahoma State Department of Health, Water Quality Division. Q Do you have a title? A position? A I guess it would be a Sanitarian or Environmental Technician. Q All right. Do you have some degrees that qualify you for that position? A I have a BS degree from Oklahoma State Uni- versity. Q In what subject? A Wildlife Management and Zoology. [46] Q When did you earn that? A 1969. Q And, do you have another degree? A I have a Master’s in Fisheries. Q Fisheries? A Yes. PO PO PO PO 44 Where did you earn that? At Oklahoma State. What year did you receive that degree? ’73, I believe. All right. How long have you been working for the State Department of Health? A I started in March of 1974. Q All right. Could you describe your duties working for the State Department of Health? A Well, when I was assigned to Garfield County, I was assigned as a Sanitarian, and my duties covered the field of water, air, solid waste, food, restaurant type in- spections, we had some thirty-something programs that we cover here in the County. Q All right. Now, have your duties included inves- tigating spills of harmful substances into the water? A When we are—When we are notified of these, our duties were to investigate these types of spills. Q All right. Now, if I can take you back to March of [47] 1975, where were you assigned at that time, to work? A I was in Garfield County, assigned to Garfield County. Q All right. On March 25 of 1975, did you happen to observe an oil spill? THE COURT: Excuse me, just a minute, Mr. Salo. Mr. Cloudd, you’re the fartherest away, can you hear the witness all right, is he speaking all right? JUROR CLOUDD: Yes. THE COURT: Very well; go ahead. Q (By Mr. Salo) On March 25 of 1975, did you happen “to observe an oil spil! as part of your work? A March 25 of ’75? Q That’s right. A Yes. Q Okay. Could you describe to the Jury how you happened to observe that spill? A I was out at the Enid Landfill doing a routine in- spection of the sanitary facilities. We have to do so many a year to check out on the program to see if they’re putting their waste in right and covering it up and OPO PO ee nnn ana 60 few moments. You, Ladies and Gentlemen, may be ex- cused, thank you very much, we appreciate your splendid service during this session of Court. The parties will re- main momentarily so we can complete the record, but the Jury may be excused. (Whereupon, at this point the Jury was excused, after which time the following proceedings were had, to-wit :) THE COURT: Now, the sole question left is whether or not the civil penalty imposed in connection with this matter [138] was a reasonable sum. Of course, the Court permitted evidence on that point to come in so we could hear the whole thing and that’s in the record, and I’m going to reduce the amount of this penalty for the reason that I am convinced that the Defendant did do nearly everything that was possible to alleviate the situation after it was discovered, and because of that, and because of the fact that there was not a great deal of oil that did escape, I’m going to cut the penalty exactly in half, make the penalty $250.00 rather than 500.00. It was suggested to me that I cut the fine or penalty, rather civil penalty, down to a dollar as was done in a case in- volving General Motors. I don’t believe we have an analogous situation here because there the evidence was and the Judge found that General Motors had done every- thing possible to prevent the pollution as Congress dis- tinguished between trying to clean it up after it occurred. I’m not about to say Mr. Ward is a bad operator or a bad man. I’m convinced he’s going to be a good man. We are going to have to be more careful with this wonder- ful land of ours and do everything humanly possible to prevent these things to start with, otherwise we are all going to be reading Silent Spring, and maybe there will be no Spring at all for our grandchildren. Now, this is a law that I am happy to help enforce and it must be enforced and the teeth that enforce it must indeed be long and sharp ones, so by reducing this fine, Mr. Jones, as you suggest, to a dollar, I believe I would be [139] saying to the industry, here in Oklahoma that actually is not that bad, go ahead and instill this deleterious sub- ain ict ic inns Na desnn ne demv 61 stance, kill our fish, kill our streams, pollute the waters, kill the land, because we are so energy conscious that we don’t care what you do. I just don’t want that mes- sage to go forward, at least from here. That’s the rea- son I am not going to impose that minimum, minimal one dollar penalty. It will be $250.00. 2 Now, I’m going to ask that Counsel for the Govern- ment prepare a formal Judgment in accordance with the way we have conducted this Trial, the finding of the Jury with respect to the Interrogatory in Case No. CIV- 76-0456-E, that’s the one styled United States versus L. O. Ward, that’s the civil action to collect the penalty. And, when you have prepared it, I want you to submit it to Counsel for the Defendant for approval as to form, and then have it forwarded on to me for signature and filing and get this done within a week. I would also require that you do the same thing in the other case, but Mr. Jones indicated that he would prefer to prepare that himself, because he may want to appeal. Of course, he may appeal both of them, but the one that found the Statute to be Constitutional, didn’t you indicate you would prefer to draw that one yourself? MR. JONES: Yes, Your Honor, and enter judgment in favor of the Defendant in Ward versus Coleman. * * * * 62 SUPREME COURT OF THE UNITED STATES No. 79-394 UNITED STATES, PETITIONER v. L. O. WaRD, dba L. O. WARD OIL and GAS OPERATIONS ORDER ALLOWING CERTIORARI. Filed November 5, 1979 The petition herein for a writ of certiorari to the United States Court of Appeals for the Tenth Circuit is granted. Mr. Justice Marshall took no part in the consideration or decision of this petition. ¥* U. 6. GOVERNMENT PRINTING OFFICE; 1979 307515 168 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0884%3A2. Public record. Not legal advice.