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January 17, 1989


The opinion of the court was delivered by: DIAMOND

 In September of 1988, a grand jury returned a two-count indictment against Ashland Oil, Inc. ("Ashland"), for alleged criminal violations arising out of an oil spill from an Ashland storage tank at Ashland's Floreffe, Pennsylvania, facility on January 2, 1988. Count I of the indictment charges Ashland with violating the Refuse Act of 1899, 33 U.S.C. §§ 407, 411. Count II charges Ashland with violating the Clean Water Act, 33 U.S.C. §§ 1311(a), and 1319(c)(1). Presently before the court is, inter alia, Ashland's motion to dismiss the indictment for prosecutorial misconduct. For the reasons set forth below, the motion will be denied.

 I. Background

 In its motion, defendant Ashland alleges that members of the Allegheny County Fire Marshal's Office and Allegheny County Bureau of Police withheld exculpatory evidence from the defendant and the grand jury and that at least one member of the Fire Marshal's Office committed perjury before the grand jury in relation to this exculpatory evidence. Ashland seeks, at the minimum, an evidentiary hearing so that it may have an opportunity to show that the government's conduct, as alleged, justifies dismissal of the indictment. Because the court will assume, for purposes of this motion, that all the allegations made by Ashland against the government are true, the court concludes that an evidentiary hearing is not needed to resolve this controversy. Rather, the court will rely on the following assumed facts as represented by Ashland in its motion, brief in support thereof, and reply to the government's omnibus response:

1) On October 7, 1988, in connection with civil proceedings arising out of the January 2, 1988, oil spill, certain members of the Fire Marshal's Office were deposed including Fire Marshal Martin Jacobs and Chief Inspector Charles Kelly.
2) During these depositions both men testified that Ashland had written a letter to the office on May 15, 1986, for the purpose of ascertaining how a permit for construction can be obtained. Both men also testified that Ashland never followed up on this letter and no permit was ever issued. Fire Marshal Jacobs stated that there exists a log book which contains records of all tank inspections. Jacobs further stated that he and his secretary could not find any entries in the log relating to the tank. Chief Inspector Kelly testified consistent with that and stated that he had never performed an on-site inspection of the Floreffe facility and had never made an entry in the log book. The log book, however, was not produced at that time.
3) Subsequently, the log book was subpoenaed and an examination revealed the existence of an entry relating to Ashland's tank. Based upon this entry, a new round of depositions was noticed.
4) On October 14, 1988, Chief Inspector Kelly, Fire Marshal Jacobs, Lieutenant Norman Smilnyak and Deputy Fire Marshal Edward Babyak were deposed.
5) Chief Kelly produced the original log book and indicated that he made the entries referring to Ashland. He could not explain why he indicated on October 7 that there were no entries. He also stated that the entries were a mistake and offered the fact that he was new to the position as an explanation. He maintained he had not made a site inspection and had not approved construction of the tank. Kelly explained the reference in the log to a "blue special" as a memorandum on blue paper sent to the Fire Marshal's supervisor advising that a certain project had been approved. However, Kelly denied making a blue special in this case.
6) Fire Marshal Jacobs similarly testified. He stated that he could not explain how he had missed the entry in the log. He also stated that the entry was a mistake; there was no blue special; and approval had not been obtained by Ashland.
7) Lieutenant Norman Smilnyak, head of the General Investigations Division of the Allegheny Bureau of Police and supervisor of the Fire Marshal's Office also testified. Lieutenant Smilnyak also stated that there had been no site inspection by Kelly; the entry in the log was a mistake; and there was no blue special.
8) Finally, Deputy Fire Marshal Edward Babynak testified. Babynak produced a copy of the blue special (attachment A). He stated he found it in a file after the spill and made a copy. He testified that he had given the original to Fire Marshal Jacobs on January 5, 1988, in the presence of Chief Inspector Kelly.
9) The blue special in question is a memorandum dated May 19, 1986, from Chief Inspector Kelly to Lieutenant Smilnyak entitled "TANK INSTALLATION AND INSPECTION." The memorandum reads as follows:
On May 19, 1986, this Inspector performed an on site inspection at 204 Glass House Road, Floreffe, PA at the request of Ashland Petroleum Company of Kentucky. Ashland Oil is requesting permission to demolish an existing 72,000 barrel tank and install a new 96,000 barrel tank. The new tank will be used to store #2 fuel oil.
The tank will be of welded steel construction with the roof to shell connection being weak-seam construction to provide proper emergency relief venting in case of fire. The tank will also be constructed with foam injection chambers for fire fighting.
A dike will also be built to hold the volumn [sic] of contents shoud [sic] a leak develop in the tank.
After reviewing the blueprint an aerial photographs approval has been given to Ashland Petroleum Company of ...

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