concurring in result.
I concur in result. I write only to clarify my position that the penalty assessed during the December 1992 injunction was based solely on compliance with the provisions of the civil order, not as a penalty for previous conduct for which Head could be held civilly and/or criminally responsible. Thus, unlike the civil penalty in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 777-81, 114 S.Ct. 1937, 1945-1946, 128 L.Ed.2d 767 (1994), where a tax was imposed for the same conduct that produced criminal sanctions, Head could have avoided the civil penalties altogether even after he had committed the conduct which led to criminal prosecution. The court prescribed civil penalties which would become effective as Head failed to comply with the injunction.
I agree with the balance of the majority opinion.