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October 31, 1973

UNITED STATES of America, Plaintiff,

Coolahan, District Judge.

The opinion of the court was delivered by: COOLAHAN

COOLAHAN, District Judge:

Defendant is the corporate owner and operator of a tank storage farm, fronting on the Arthur Kill Waterway at Carteret, New Jersey. The Government has brought an Information against defendant alleging in eight counts violations of the Federal Refuse Act of 1899, 33 U.S.C. § 407. *fn1" Defendant is charged with allowing, between September 24, 1970 and December 6, 1971, various chemical and petroleum products to enter the waterway from defendant's facility. Under Rule 12(b) (2) of the Federal Rules of Criminal Procedure, defendant moves to dismiss seven counts *fn2" of the indictment on the ground that the pollution was reported to the Government by the defendant pursuant to defendant's obligations under 33 U.S.C. § 1161(b) (4), *fn3" which provides:

Any person in charge of a vessel or of an onshore facility . . . shall, as soon as he has knowledge of any discharge of oil from such vessel or facility or an offshore facility 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.

 It is the immunity granted by the last sentence of section 1161(b) (4) on which defendant bases its motion. Since the issue of immunity is here tied with the manner, promptness, and completeness of the self-report, some discussion *fn4" of the facts, as shown by the record, is necessary.

 The first count of the Information charges defendant, on or about September 24, 1970, with discharging and depositing refuse matter, including gasoline and acid, into the Arthur Kill. James Fish, employee of defendant and Chief Operations and Executive Officer responsible for the Carteret terminal, states in an affidavit filed with the Court that defendant "immediately upon learning of the discharge" telephoned the Coast Guard Station at Governor's Island, New York "in accordance with the requirements of the Water Pollution Control Act. " *fn5" Fish further states that a Coast Guard investigator arrived at the terminal subsequent to the notification, and observed the discharge and action taken to correct it. Included in the record is a copy of a letter from R. J. Hanson, Chief of the Intelligence and Law Enforcement Branch of the Coast Guard District, to J. R. Scanlin, President of defendant, confirming that the Coast Guard had been notified of the spill on September 24, 1970. An attached Government report clearly shows that the "person reporting pollution" was "GATX [defendant] personnel Carteret, N.J."

 Counts 3 through 7 charge that defendant, on or about December 2, 1971, polluted the Arthur Kill with certain products discharged from Tank Lines 73, 164, 67, 88, and 37 at defendant's Carteret facility. According to the affidavit of Mr. Fish there had been, on November 24, 1971, a considerable oil and fuel spill from a cracked "pump house" at the facility. Fish immediately notified the Coast Guard and arranged a meeting on the problem with Captain Kessler, Port Captain, United States Coast Guard, for December 2, 1971. While the meeting of December 2 was in progress, Government investigators were surveying defendant's facility and observed pollution in progress, resulting in counts 3-7 of the indictment. Defendant claims that the December 2 investigation was made only as a result of its November 24 disclosure. The Government report of the December 2 pollution does not show who was the "person reporting pollution," though the Government does not contest the fact that defendant made a report on November 24.

 Count 8 charges defendant with polluting the Arthur Kill with refuse matter, including naptha solvent, on or about December 6, 1971. Mr. Fish states in his affidavit, and the Coast Guard report shows, that the Government investigator was informed of the pollution by a "dock man" employed by defendant while the investigator was at a different area of the facility than that at which the pollution was occurring.

 Assuming, arguendo, that defendant's report was proper in all respects, the Government argues that defendant is ineligible for immunity under section 1161(b) (4) since defendant is not a "person in charge" under the section. The Government would have this Court decide that section 1161(b) (4) immunity extends only to natural persons and not to corporations. *fn6"

 A reading of the face language of the statute leads to the conclusion that corporations were meant to be included in the term "person in charge." Subsection (a) of section 1161 *fn7" defines "person" as including "an individual, firm, corporation, association, and a partnership." Strong arguments would be needed to establish the proposition that a "person in charge" does not include all "persons" as defined in the very same section. Further, the one Circuit Court which has decided the issue, United States v. Mobil Oil Corp., 464 F.2d 1124 (5th Cir. 1972), and the one District Court sitting in this Circuit which has decided the issue, United States v. United States Steel, 4 E.R.C. 1641 (W.D. Pa. 1972), have both clearly held that "person in charge" includes corporations.

 The Government bases its argument on a District Court opinion outside of this Circuit, United States v. Skil Corp., 351 F. Supp. 295 (N.D. Ill. 1972), as well as the legislative history of section 1161. The decision in Skil was based on the analysis of the court that the purposes of the Water Pollution Control Act would be best served if corporations remained liable to prosecution regardless of self-reports while their managers at the scene (person in charge) would be encouraged, through the statute, in effect to "turn in" their employer corporation because the immunity would work for the managers. The court stated:

It was not the intent of Congress to create a shield behind which the corporation might insulate itself from prosecution by claiming that the person in charge, whoever he may be, has reported the situation on behalf of the corporation. *fn8"

 The court in Skil did not go beyond a discussion of its view of the most expeditious way to implement the aims of the Act.

 The Government goes further, by citing the Conference report in Congress on the Act, which declares at one point that "[the] term 'person in charge ' is deliberately designed to cover only supervisory personnel who have the responsibility for the particular vessel or facility and not to include other employees." *fn9" This passage, however, begs the question since the report does not appear to address itself on whether a corporation can be a "person in charge." The passage is helpful only to show to whom among natural persons at a pollution site section 1161(b) (4) has application. *fn10" Equally unpersuasive is Government's argument that the ineligibility of corporations for immunity is demonstrated in that section 1161(b) (4) provides for imprisonment "without mention of a corporate exception such as appears in the penalty section of the Refuse Act, 33 U.S.C. § 411, which limits its imprisonment provision with the qualifactory language 'in the case of a natural person '." It cannot be assumed that Congress, in writing the 1970 Water Pollution Control Act, had focused its attention on the language within parentheses in the 1899 Act -- "imprisonment (in the case of a natural person)." Surely, the words "corporation" and "imprisonment" are logically incongruous. This Court thus concludes, with the court in Mobil Oil, that the legislative history here is "inconclusive." *fn11"

 This Court holds that the argument in favor of immunity here, strongly established by the language of the statute itself, is buttressed by an overview of section 1161 as an entirety. Clearly, Congress contemplated two devices by which it was felt the Nation's waterways would become cleaner. The first was to punish those who pollute and thus create a deterrence to future polluters. The second, no less important, was to devise a system wherein an incidence of pollution would be detected at the earliest possible moment so that action could be taken to minimize damage. Subsection 1161(c) *fn12" embodies this second policy. By that subsection the President is mandated to publish a "National Contingency Plan" for removal of oil. Under the plan contemplated by Congress, the President is to establish "a system of surveillance and notice designed to insure earliest possible notice of discharges of oil to the appropriate Federal agency" *fn13" and to provide for "procedures and techniques to be employed in identifying, containing, dispersing, and removing oil . . . ." *fn14" Given the importance attached to the practical problem of finding and combatting such pollution as may occur, this ...

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