Use immunity generally precludes the government from using testimony or other information compelled by law or any information directly or indirectly derived from such testimony of other information against the witness in any criminal case. 18 U.S.C. § 6002. There is no use immunity for
regular, periodic reporting, such as monthly or quarterly operating reports such as Discharge Monitoring Reports, from NPDES permit holders, under federal environmental statutes. Statutory use immunity is, however, extended to certain persons who file reports for unpermitted releases of hazardous substances in excess of reportable quantities and for the discharge of oil or hazardous substances in violation of substantive provisions of the CWA. 42 U.S.C. § 9603(b) and 33 U.S.C. § 132l(b)(5). The CWA provides for use immunity but the immunity only extends to natural persons. 33 U.S.C. § l32l(b)(5) (“Notification received pursuant to this paragraph shall not be used against any such natural person in any criminal case, except a prosecution for perjury or for giving a false statement.”). As a consequence, reports of emergency discharges may be used against the company. Under the CWA, an anomaly arises because the duty to report is imposed on “any person in charge of a vessel or of an on-shore facility or of an offshore facility . . .” and case law holds the corporate employer is a “person in charge.” See Alpex Oil Co. v. United States, 530 F.2d 1291 (8th Cir. 1976). As a result, the natural person who signs the report enjoys immunity; but the company does not. Similarly, CWA use immunity may be limited to use of the notification itself and not “the fruits thereof.” Immunity under the CWA does not extend to officers, directors or employees who do not, themselves, file the reports.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii
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