Later courts went against this
Disagreed with by United States v. Kennebec Log Driving Company, 491 F.2d 562 (1973)
We therefore disagree with the view expressed by the Seventh Circuit in United States v. United States Steel Corp., 482 F.2d 439 (1973), to the effect that while Congress may have intended that the Refuse Act ban deposit of any matter of any kind, Congress thought that the Secretary of War would have no authority to deny a permit purely on non-navigational grounds.
The opinion
ON APPELLANT’S PETITION FOR REHEARING.
ORDER
In support of its petition for rehearing defendant argues, in part, that the Supreme Court’s recent opinion in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 , 93 S.Ct. 1804 , 36 L.Ed.2d 567 (1973), requires that defendant have the opportunity to prove that it was affirmatively misled by regulations and other official pronouncements of the Corps of Engineers into believing that 33 U.S.C. § 407 did not apply to its discharges. However, in that case the defendant offered to prove at trial that it relied in good faith on 33 C.F.R. § 209.395 (1966) and 33 C.F.R. § 209.200 (e)(2) (1969) in concluding its discharges were permissible under law, and it raised the exclusion of such proof as an issue on appeal. Here, in contrast, although defendant invokes the same regulations, it has pointed to no attempt in the trial below to prove that it actually relied upon them in making its discharges, * and on appeal defendant utilized those regulations solely in an effort to establish an administrative interpretation to which, it argued, the Court should give great weight in construing 33 U.S.C. § 407 . It did not argue that it had relied on these regulations in discharging the refuse matter, nor did it argue that any proof of reliance thereon was submitted and improperly *454 excluded below. Insofar as Exhibits C and D are concerned, for the reasons set forth in the Court’s opinion, their exclusion from evidence was justified. Had they been admitted, they could not have formed a sufficient basis to justify reasonable reliance, as the district court indicated in its ruling.
The petition for rehearing is denied.
The latter regulation was promulgated after the discharges in question.