Guidelines for “clearly erroneous” review in setting a CWA fine.

A technical opinion about calculation of a Clean Water Act penalty for a wastewater spill offers two points of broader interest.  United States v. Citgo Petroleum, No. 11-31117 (July 17, 2013).  First (in the context of a remand for other reasons), as to whether the defendant’s acts amounted to gross negligence rather than simple negligence, the Fifth Circuit emphasized the importance of the defendant’s long delay in taking remedial action.  “In our view, though, almost winning a highly risky gamble with the environment does not much affect the egregiousness of having been gambling in the first place.”  Second, in reviewing a challenge to the amount of wastewater at issue under the “clear error” standard, the Court reminded: “The government’s argument on this issue is essentially that the court credited the wrong expert.  ‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.'”