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UNITED STATES v. MESSER OIL CORP.

February 28, 1975

UNITED STATES
v.
MESSER OIL CORP.


Knox, District Judge.


The opinion of the court was delivered by: KNOX

This criminal action is brought under 33 U.S.C.A. § 1321(b)(5), a subsection of the Federal Water Pollution Control Act of 1972. Section 1321(b)(5) provides in relevant part:

 
"Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge."

 This section of the statute appears straightforward, and its requirements simple, but many hidden questions lurk beneath its surface. Our primary concern here is with the words "appropriate agency"; what agency has been designated "appropriate" and is that designation properly authorized? We also have further questions as to who is a "person in charge" under the act, and how short a time does he have to act in order to give "immediate" notice.

 The case was tried non-jury by agreement of the parties. The court has heard arguments, received briefs and further briefs. The latter were required in view of the labyrinth of legislation and administrative regulations, some conflicting, others merely confusing, through which the court has had to wander to determine if this small oil operation in northeastern McKean County, Pennsylvania at Rixford, Pennsylvania, has committed a criminal offense against the United States in not giving immediate notice of an oil spill into a small stream. The stream was a "little unnamed tributary to the south branch of Knapp Creek" which runs into the Allegheny River seven to ten miles east of Rixford.

 The spill, caused apparently by pranks of two children in opening a valve, was discovered on the evening of May 27, 1973, during a heavy rain storm.

 The defendant has moved to dismiss the indictment on the ground that the statute and regulations thereunder are impermissibly vague and in violation of the due process clause of the constitution. The defendant contends that at the time of the oil spill no agency had been duly named as the "appropriate agency" to receive notice. Alternatively, the defendant contends that if any agency is the "appropriate agency" to receive notice, it is the Coast Guard, and the information charging failure to notify the Environmental Protection Agency (EPA) is therefore insufficient. Because the motion to dismiss was not timely filed in accordance with Local Rule 24 and Rule 12 of the Federal Rules of Civil Procedure, argument on the same was heard immediately prior to the commencement of trial, and the matters presented were taken under advisement. We therefore have under consideration at this time both the motion to dismiss and the merits of the case.

 I. Legislation and Regulations.

 The Federal Water Pollution Control Act, 33 U.S.C.A. §§ 1251-1376 [formerly 33 U.S.C.A. §§ 1151-1165] was originally enacted by Act June 30, 1948, c. 758, 62 Stat. 1155 and has been amended numerous times. [See note on "Codification" following 33 U.S.C.A. § 1251]. Pub.L. 92-500, passed October 18, 1972, comprehensively amended, reorganized and expanded the act. The forerunner to 33 U.S.C.A. § 1321(b)(5), the section under which this criminal action is brought, is found at 33 U.S.C.A. § 1161(b)(4) [June 30, 1948, c. 758, § 11, as added April 3, 1970, Pub.L. 91-224, Title I, § 102, 84 Stat. 91.] That provision is identical to 33 U.S.C.A. § 1321(b)(5), except that it applied only to oil spills and not to discharges of other hazardous substances.

 Executive Order 11548, issued July 20, 1970, pursuant to the 1970 Act, provides in part:

 
"Sec. 6. Agency to Receive Notices of Discharges of Oil or Hazardous Substances.
 
The Coast Guard is hereby designated the 'appropriate agency' for the purpose of receiving the notice of discharge of oil required by subsection (b)(4) of section 11 of the Act. . . . The Commandant of the Coast Guard shall issue regulations implementing this designation.
 
Sec. 7. Redelegation authority.
 
Secretaries of Departments and heads of agencies are hereby authorized to redelegate within their respective departments or agencies the responsibilities and authority delegated to them by this order, subject to the requirements of 3 U.S.C. 301.
 
Sec. 8. Regulations.
 
Authority to carry out any of the foregoing responsibilities includes the authority to issue necessary ...

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