Statutory Use Immunity, Part 2
CERCLA also provides use immunity but it is different from the CWA. CERCLA immunity is not limited to the notice alone, but also includes the fruits thereof: “Notification received pursuant to this subsection or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case . . ..” 42 U.S.C. § 9603 (emphasis added). Also, CERCLA use immunity is not expressly limited to natural persons. Notwithstanding, it can be argued that its protections extend only to those upon whom a duty is imposed: “Any person in charge of a vessel or of an on-shore facility or an offshore facility . . ..” 42 U.S.C. § 9603(a). In other words, it is all in how the courts choose to interpret the immunity provision. Immunity under CERCLA does not extend to officers, directors or employees who do not, themselves, file the reports. EPCRA imposes similar emergency notification requirements, but does not grant use immunity. 42 U.S.C. § 11004(a)(l) (“If a release of an extremely hazardous substance . . . occurs from a facility at which a hazardous chemical is produced, used, or stored, and such release requires notification under [CERCLA], the owner or operator of the facility shall immediately provide notice [to the community emergency coordinator].”).
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii