of immunity in § 1161(b)(4) in addition to posing the threat of
prosecution, thereby inspiring a "person in charge" to more
promptly notify authorities of any discharge.
That argument assumes that Congress could not decide, as
very often it has, that the threat of prosecution does, in
reality, constitute an incentive to cause one voluntarily to
perform a desired act. Experience has shown that the threat of
prosecution can create some additional incentive to the
private individual to voluntarily perform in aid of the
Before the enactment of what is now § 1161 the governing
Statutes 33 U.S.C.A. § 401 f.f. which still exist, penalized
"any person" for causing pollution in the streams.
That person could be, as case law has interpreted, a
corporation. Statutes have indicated that it may be a
corporation, a partnership, an association, or any private
person, employee or non-employee of a corporation that might
be involved. The Statute merely said that "any person" causing
the pollution "shall be punished."
The penalty provisions under § 407 of the old Statute,
applicable as they are to anyone, have a maximum fine of $2,500
and a maximum incarceration of not more than one year.
§ 1161 of the new enactment is concerned primarily with the
person in charge and while the incarceration provision remains
one year the fine is increased to $10,000.
In the recent enactment, the penal provision carries in it
the inducement clause which is to the effect that the person
in charge will not be subject to prosecution if he notifies
the proper authorities. Clearly § 1161 sought to bring onto the
side of Government, even as against his own employer, if the
case be as is this, the man (or woman) most likely to be
closest to or earliest at the situs of the polluting incident.
I conclude that it was the intent of Congress to provide
immunity in the inducement clause, for an individual whether
he be a corporate officer, a corporate supervisor, a person in
a supervisory capacity or, for that matter, a non-supervising
janitor or night guard at the off-shore facility. Such person
need not be acting on behalf of the corporation, but on his
own personal behalf.
Since that person were he responsible for the spillage could
be prosecuted under § 407 it follows that in enacting § 1161
Congress sought to make available to that one individual an
opportunity to alert the designated agency of a spillage at the
earliest possible hour.
At the same time, § 1161 gives that person the incentive that
in so doing he may not be subject to prosecution as he very
well might be under § 407. 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
It may be important that in the Mobil Oil case the relevant
facts were not in dispute, whereas in the case at bar pertinent
facts are yet to be determined.
There is an affidavit signed by the plant engineer stating
that he arrived at the Elston Street facility within one-half
hour after he was informed that oil might have been
The report was transmitted to the plant engineer doubtless
by the "person in charge" who did not call the Coast Guard;
instead the "person in charge" left that task to the plant
At the same time, there is some evidence that an instructor
at North Park College reported the oil slick to the Sanitary
District which in turn reported it to the Coast Guard.
But it seems to me that resolution of these facts would be
necessary to a determination of a motion to suppress if the
defendant were the "person in charge." Here the plant engineer
is not the defendant.
The fundamental question herein involved is whether or not
it was the intent
of Congress by use of the phrase "person in charge" to mean
anyone else but the person who was at the facility at the time
and was in charge under the management provisions or of the
handling of that part of the facility which related to the oil
Concluding, as I do, that Congress did not intend the phrase
"person in charge" to carry with it the traditional concepts
of corporate action (or immunity) through one of its officers
or supervising personnel, I find the motion of Skil
Corporation to be without merit and should be denied. The
motion to suppress is denied and the cause will be set down to
a firm date for trial.
© 1992-2003 VersusLaw Inc.