ELR Citation: ELR 20575
No(s). 72-2 (W.D. Pa. Oct 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, PA 15219

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