The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
The defendant has asked that all information in the hands of
the United States Attorney be suppressed as evidence against
it in any criminal proceedings growing out of the incident
described in the criminal information.
Defendant states that on or about March 22, 1972 it ordered
a quantity of industrial fuel oil delivered to its Elston
Street facility in Chicago and that by accidental oversight on
the part of certain Skil personnel, the Skil receiving tank
was permitted to overflow. A portion of the fuel oil flowed
into a sanitary-storm sewer adjacent to the Skil plant and
from there escaped into the north branch of the Chicago River.
Thereafter, defendant submits, its plant engineer notified
various Government agencies, including the Coast Guard. Skil
asserts that the Coast Guard initiated an investigation and
reported its findings to the United States Attorney. These
findings, says Skil, constitute the basis for the Government's
action against it.
The Government disputes defendant's version of the acts of
the case and alleges that on the date in question an
instructor at North Park College advised the Metropolitan
Sanitary District of Greater Chicago of an oil slick covering
the entire width of the North Branch of the Chicago River and
extending downstream for a distance of at least one mile. The
Government submits that pursuant to this notification the
Chicago Sanitary District dispatched its investigators to the
situs of the spill, and that they directed a Skil employee to
contact his superior, the plant engineer, and arrange a joint
meeting to discuss proper cleanup procedures.
The Government further submits that it was at the suggestion
of a Sanitary District employee that the plant engineer for
Skil notified the Coast Guard and that neither the "notice" of
the spill provided the Coast Guard by the plant engineer nor
any fruits thereof are in any way being used or exploited by
the Government in the development of or presentation of the
In explanation of the above, the Government states that the
location of the Skil facility is not within a designated area
of Coast Guard supervision and therefore no investigation was,
in fact, conducted by the Coast Guard into the matter. The
Government denies possession of any investigative reports or
other "findings" by the Coast Guard concerning this case.
The Government further states that none of the evidence upon
which its case is based was obtained by the exploitation of
the plant engineer's notification. Instead, the Government
alleges, its case is based entirely upon the investigation
completed by the Sanitary District and that regardless of the
merits of Skil's argument for suppression, the absence of
anything to suppress renders Skil's contention innocuous.
Skil is charged with the violation of The Rivers and Harbors
Act of 1899, 33 U.S.C.A. § 401 f.f. and specifically Section 13
thereof, which states in relevant part:
"It shall not be lawful to throw, discharge, or
deposit, or cause, suffer, or procure to be
thrown, discharged, or deposited either from or
out of any ship, barge, or other floating craft
of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any kind,
any refuse matter of any kind or description
whatever other than that flowing from streets and
sewers and passing therefrom in a liquid state,
into any navigable water of the United
States . . . ." 33 U.S.C.A. § 407.
The penalty for violating this provision is contained in
Section 16 of the Act, which states:
"Every person and every corporation that shall
violate, or that shall knowingly aid, abet,
authorize, or instigate a violation of the
provisions of sections 407, 408, and 409 of this
shall be guilty of a misdemeanor, and on
conviction thereof shall be punished by a fine
not exceeding $2,500 nor less than $500, or by
imprisonment (in the case of a natural person)
for not less than thirty days nor more than one
year, or by both such fine and
imprisonment, . . ." 33 U.S.C.A. § 411.
The Water Pollution Control Act, recently passed in 1970, 33
U.S.C.A. § 1151 f.f. expands the earlier Federal statutory
control over pollution matters, and contains a notice
requirement pertaining to the ...