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United States v. Kennecott Copper Corp.

Citation: 5 ELR 20707
No. No. 74-3401, 523 F.2d 821/8 ERC 1622/(9th Cir., 09/24/1975)

The Ninth Circuit Court of Appeals affirms a lower court's conviction of the defendant for failing to notify the appropriate governmental agency immediately about a known oil spill into a navigable river, as required by § 311 of the Federal Walter Pollution Control Act Amendments of 1972. The statutory notification provision is not void for vagueness. It adequately informs persons in charge of onshore oil facilities that their failure to notify promptly a governmental agency concerned with navigable waters or environmental protection about a substantial oil spill subjects them to potential criminal liability. Although the EPA Administrator did not issue new regulations defining "harmful quantities" of oil until after the spill in question occurred, the statute's savings provision continued in effect the previous regulations on this point, and the regulatory framework was therefore not impermissibily vague at the time of the spill. The court of appeals also finds that the evidence was sufficient to sustain the verdict. The jury could properly have concluded that over 100,000 gallons of oil was spilled into the Gila River, and could properly charge Kennecott with knowledge that harmful quantities of oil had accidentially been discharged. A Kennecott employee's phone call to the EPA Regional office reporting the spill would have satisfied defendant's statutory obligation had it been made the morning the spill was discovered, rather than two days later.

Counsel for Plaintiff-Appellee
John F. Flynn, Asst. U.S. Attorney
5000 Federal Building
Phoenix, Ariz. 85025

Counsel for Defendant-Appellant
Philip E. VonAmmon
Fennemore, Craig, VonAmmon & Udall
100 W. Washington, Suite 1700
Phoenix, Ariz. 85003

Hufstedler, J. for herself, Tuttle* & Wright, JJ.