United States of America v. Humble Oil and Refining Co.

Criminal No. 71-H-195 (S.D. Tex. October 18, 1971)

Defendant's motion to dismiss Refuse Act prosecution denied. Statute forbids discharge from production platform even though the term is not specifically mentioned in the legislation. Offense is malum prohibitum and requires no scienter. Refuse Act not superceded by Federal Water Quality Improvement Act of 1970 which specifically disclaims any such congressional intention. Information need not state that it is not based upon immune information. Immunity is affirmative defense, the absence of which need not be pleaded anticipatorily.

Counsel for United States:
Anthony J. P. Farris U.S. Attorney
Donald B. McFall Asst. U.S. Attorney
515 Rusk
Houston, Texas 77002
(713) 266-4765

Counsel for Humble Oil:
Walter B. Morgan, Esq.
Humble Oil & Refining Co.
800 Bell
Houston, Texas 77002
(713) 221-3636

[1 ELR 20601]

MEMORANDUM AND ORDER

Seals, J.

The defendant, Humble Oil & Refining Company, has filed a motion to dismiss the criminal information which charges Humble Oil & Refining Company with discharging oil from a production platform in Galveston Bay into the bay in violation of 33 U.S.C. § 407, Rivers and Harbors Act of 1899 § 13.

The first ground proposed is that a production platform is not one of the facilities enumerated in § 407 as being a place from which discharge of any refuse matter into navigable waters is unlawful. The statute by its terms applies to "any ship, barge, or other floating craft of any kind, or . . . the shore, wharf, manufacturing establishment, or mill of any kind." The words "production platform" do not appear. This is hardly surprising since such contraptions were unknown in those days. However, the statute does condemn the discharge of refuse into navigable waters from all manner of vessels and shore facilities including commercial establishments. It would seem strange if it did not also reach discharges from man-made islands which were integral parts of the manufacturing process. A production platform is connected to shore facilities by pipelines and has separator tanks which are used to separate oil and sand. It is therefore an establishment of some kind in the manufacturing process and discharges from the platform are made unlawful under Section 407 unless done under permit.

The second ground put forward is that the information is defective in that it does not allege intent or scienter. This argument has been put forward many times and rejected by every court which has heard it. The offense is a malum prohibitum, a public welfare offense the mere doing of which is so harmful as to require punishment to protect the general good. The information is not defective for an absence of allegations of willfully, intentionally, knowingly, or negligently having committed the proscribed acts. United States v. United States Steel Corp., 328 F. Supp. 354 (N.D. Ind. 1970); United States v. Interlake Steel Corp., 397 F. Supp. 912 (N.D. Ill. 1969).

Defendant's third ground in support of the motion to dismiss is that the Federal Water Quality Control Act of 1965, as amended by the Federal Water Quality Improvement Act of 1970, supersedes Section 407 of Title 33. While these later acts are comprehensive attempts to improve water quality and 33 U.S.C. § 1161 is specifically aimed at oil pollution, it does not follow that Section 407 is no longer viable for the punishment of persons who do in fact discharge oil into the navigable waters. Section 1174 of Title 33 specifically disclaims such an intent on the part of Congress. Further, it is clear that the Acts of 1965 and 1970 (33 U.S.C. § 1151 et seq.) are intended to provide the encouragement and impetus to develop the technology to control water pollution. The Acts establish procedures to secure abatement, detail reporting procedures and set up fines for failures to report. There is no indication of any attempt by Congress to do away with criminal punishment for pollution. In fact, the immunity provision of § 1161(b)(4) is a clear indication that criminal penalties still exist. The same can be said for the civil fines provisions of § 1161(b)(5) which can be compromised by the Secretary. Thus, good faith and other variables can reduce the offender's civil fine. It is not unreasonable for the government to use carrots to encourage responsible industrial actions and to use § 1174 to retain the stick provided by § 407.

The fourth point relied upon by Humble Oil & Refining Company is grounded on the immunity clause of 33 U.S.C. § 1161(b)(4). Subparagraph 4 establishes a duty on the person in charge of a vessel or facility to notify the appropriate government agency of any discharge, a penalty for the failure to do so, and an immunity from the use of such a notice against such a person in any criminal case, except prosecutions for perjury or for the giving of a false statement.

The defendant maintains that the information is fatally defective because it does not state that it is not based on immune notification. Whether this provision does or does not provide immunity to a corporate person as opposed to a natural person only is another question. The immunity is a defense and the Government does not have to plead its nonexistence anticipatorily in the criminal information.

For the foregoing reasons the defendant's motion to dismiss must be rejected on all four grounds. It is therefore ORDERED that the defendant's motion to dismiss be, and the same hereby is, DENIED.

Clerk will enter this Memorandum and Order and provide counsel with true copies.