United States v. United States Steel Corporation

No. 72-2 Criminal (W.D. Pa. October 2, 1972)

Section 1161 (b) (4) of the Federal Pollution Control Act, 33 U.S.C. § 1161 (b) (4), which provides immunity from prosecution under the Refuse Act of 1899, 33 U.S.C. §§ 407, 411, for a person in charge of a polluting vessel or facility on the basis of his own immediate notification to the government authorities of the discharge, is found to be an evidentiary immunity, rather than a transactional immunity. Where United States Steel had immediately notified the Environmental Protection Agency and the Coast Guard of a discharge into the Monongahela River, it may still be prosecuted criminally for the discharge under the Refuse Act upon a showing that the government's evidence was not obtained in any way from the defendant's notification. Defendant's motion for dismissal is denied, and the government is given an opportunity to show that is evidence did not emanate from U.S. Steel's notification.

Counsel for Plaintiff
James M. Seif Ass't U.S. Attorney
633 U.S. Post Office and Courthouse
Pittsburgh, Pennsylvania 15219

Counsel for Defendant
David McNeil Olds
John McN. Cramer
747 Union Trust Building
Pittsburgh, Pennsylvania 15219

[2 ELR 20575]

Teitelbaum, J.

MEMORANDUM OPINION

This is a criminal action under the Refuse Act of 1899, 33 U.S.C. §§ 407 and 411, arising out of a spill of oil on October 27, 1971 from the defendant's Homestead Works into the Monongahela River. The defendant has moved to dismiss the action on the basis that it is founded on information obtained by the exploitation of the notification of the spill by the defendant to the United States Coast Guard and the Environmental Protection Agency. The defendant contends that § 1161 (b) (4) of the Federal Pollution Control Act ("FPCA"), 33 U.S.C. § 1150 et seq., consequently immunizes the defendant from prosecution for the spill.

Section 1161 (b) (4) provides, in pertinent part, as follows:

"Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil from such vessel or facility in violation of paragraph (2) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both.Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement." [Emphasis supplied.]

The defendant reads this provision as requiring, as a consequence of its notification to the Coast Guard of the spill, the dismissal of this action. The Government reads the provision, by referring to the statutory definition of "person", 33 U.S.C. 1161 (a) (7) (which includes "any individual, firm, corporation, association, or partnership") and by distinguishing between "person" and "person in charge", as immunizing only individuals and not corporations. I think both constructions of § 1161 (b) (4) are erroneous. The [2 ELR 20576] Government's argument is immensely convoluted¹ and the defendant's argument is overly broad.

The plain meaning of the immunity provision is that neither the notification nor information obtained as an outgrowth of the notification may be used against a defendant in a criminal prosecution.² It is akin to a use immunity rather than to a transactional immunity. Indeed § 1174 of the FPCA allows that its provisions shall not be construed as "affecting or impairing" the provisions of 33 U.S.C. §§ 407 or 411. Moreover, this interpretation of the immunity provision of § 1161 (b) (4) does not detract from the purpose of the notification provision to provide prompt advice of spills to the Government in order that it may assist in devising and implementing control and clean-up procedures.

Therefore, the defendant's motion will be denied. A hearing will be held, however, to afford the Government an opportunity to show that the evidence to be used in the prosecution of this action was not obtained from the defendant's notification to the Coast Guard and the Environmental Protection Agency of October 27, 1971, or from its exploitation.

An appropriate Order will be entered.

ORDER

AND NOW, to wit, this 29th day of September, 1972, in consideration of the foregoing Memorandum Opinion, IT IS ORDERED that the defendant's Motion to Dismiss the information in the above-captioned criminal case be and the same hereby is denied.

IT IS FURTHER ORDERED that a hearing be held on Friday, October 6, 1972 at 10:00 A.M. in Court Room No. 12, 10th Floor, United States Post Office and Courthouse, for the purpose of affording the Government an opportunity to show that the evidence which it proposes to use in the prosecution of the above-captioned criminal case was not obtained from either the defendant's notification on October 27, 1971 to the United States Coast Guard and the Environmental Protection Agency of the oil spill of October 27, 1971 from its Homestead Works, or its exploitation.

1. See United States v. Mobil Oil Corporation, No. 71-3558 (5th Cir. July 26, 1972).

2. Of course, the burden is on the Government to show that the evidence which it proposes to use in a particular prosecution was not obtained from either the notification or its exploitation.