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October 20, 1972


The opinion of the court was delivered by: Parsons, District Judge.


This is a criminal action in the field of water pollution brought against a corporate defendant. I am called upon to rule on defendant Skil Corporation's Motion to Suppress Evidence. The Motion is made pursuant to Rule 2.05(c) of the Local Rules of Criminal Procedure of this Court and pursuant to Rules 12(b) and 41(e) of the Federal Rules of Criminal Procedure.

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 facts.

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:

The Water Pollution Control Act, recently passed in 1970, 33 U.S.C.A. ยง 1151 f.f. expands the earlier Federal statutory control over pollution matters, and contains a notice requirement pertaining to the ...

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