Petition — Frezzo Bros. v. United States

” Supreme Court, U. & }

FILED qT:

NOV 21 1979

eee ¢ MICHAM. ROBAK, JR., CLERR

Supreme Court of the United States ~~

Ocroser TERM, 1979

* 79-808

FREZZO BROTHERS, INC.,

GUIDO FREZZO and JAMES L. FREZZO,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

JOHN ROGERS CARROLL,

THOMAS COLAS CARROLL,

Attorneys for Petitioners,

CARROLL CREAMER

CARROLL & DUFFY;

Suite 326,

Three Penn Center Plaza,

Philadelphia, Pennsylvania 19102

(215) 568-5200

Pennsylvania Appellate Printing Co.—Call Toll Free—! (800) 526-7560

TABLE OF CONTENTS

ie oe ener Pere 1

a TN ar RE Oe EE RY oe 2

I Ch aii vcs ccs abe cicye nes cniceeen 2

ae A 2a aa 2

On EE ee eee ee 5

REASON FOR GRANTING THE WRIT:

This Criminal Water Pollution Case Presents An Im-

portant, Unsettled Federal Law Issue Of Whether

The Administrator Of The EPA Must Give Prior

Notice. By Civil Action Or Other Non-Penal Noti-

fication, Before Causing The Commencement Of A

Criminal Prosecution Against An Alleged Violator

Of The Federal Water Pollution Control Act Who

Was Engaged In An Agricultural Related Activity

As To Which There Are No Promulgated Effluent

NE i ie eee ri hea dps eas hes + as 7

i A ar PB ie 12

Cases CITED:

American Frozen Food Institute v. Train,

176 U.S. App. D.C. 105, 539 F.2d 107 (1976) ... 8

Natural Resources Defense Council v. Train,

396 F. Supp. 1393 (D.D.C. 1975),

aff'd, 568 F.2d 1369 (D.C. Cir. 1977) .......... 10

United States v. GAF Corporation,

389 F. Supp. 1379 (S.D. Tex. 1975) ............ 7

ii

TABLE OF CONTENTS

Cases CITED:

United States v. Hamel,

GGL Pome 807 (Gre Cae, BOTT) ns onc nintcine, 8

United States v. Pennsylvania Chemical Corporation,

see ee OS. ook is ll

United States v. Phelps Dodge,

391 F. Supp. 1181 (D. Ariz. 1975) ............ 8

STATUTES, RULES AND Acts CITED:

Federal Water Pollution Control Act,

62 Stat. 1155 as amended in 1972 ........... 5 7

33 U.S.C.A. §§1251-1376 (Supp. 1973) ............ 7

38 F.R. 18000 (July 5, 1973)

(codified at 40 C.F.R. §125.4 (1975)) ......... 10

41 F.R. 28496 (July 12, 1976)

(codified at 40 C.F.R. §125.4 (1978)) ......... 10

Copes CIrTeEp:

EN iss Saas i gk oe 2

UR. SN os , a 2, 5, 7

I eo bina. ai pe 3, 5, 8 9

I, SO ino eas ee 4

iii

TABLE OF CONTENTS

APPENDIX

Appendix A

Se OO cee keen. la

Appendix B

Court of Appeals Decision .................. 17a

Appendix C

Order Denying Rehearing ................... 34a

IN THE

SUPREME COURT OF THE UN ITED STATES

OcToBER TERM, 1979

No.

FREZZO BROTHERS, INC.

GUIDO FREZZO and JAMES L. FREZZO,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

Frezzo Brothers, Inc., Guido Frezzo and James L.

Frezzo, respectfully petition this Court to issue a writ of

certiorari to review the judgment and opinion of the United

States Court of Appeals for the Third Circuit entered in

this proceeding on July 13, 1979.

OPINIONS BELOW

The opinion of the District Court is published at

United States of America v. Frezzo Brothers, Inc., et al.,

461 F. Supp. 266 (E.D.Pa. 1978) and attached as Ap-

pendix A. The opinion of the Court of Appeals is pub-

lished at United States of America v. Frezzo Brothers, Inc.,

et al., 602 F.2d 1123 (3d Cir. 1979) and attached as Ap-

pendix B. By order dated October 22, 1979, the Court of

Appeals denied a petition for rehearing, at Appendix C.

JURISDICTION

The judgment of the Court of Appeals for the Third

Circuit entered July 13, 1979. The petition for rehearing

was denied on October 22, 1979. Petitioner invokes this

Court's jurisdiction under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Should Not The Indictment In This Criminal Water

Pollution Case Have Been Dismissed Where The Admin-

istrator Of The EPA Caused The Commencement Of This

Criminal Prosecution Without Having Given Notice, By

Civil Action Or Other Non-Penal Notification, To Petition-

ers That They Were In Alleged Violation Of The Federal

Water Pollution Control Act Due To Periodic Pollutant

Discharges Arising Out Of Their Agricultural Related Ac-

tivities As To Which There Are No Promulgated Effluent

Standards?

STATUTES INVOLVED

Title 33, U.S.C. §1311(a) |

§1311. Effluent limitations

(a) Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342, and 1344 of

this title, the discharge of any pollutant by any person

shall be unlawful.

Title 33, U.S.C. $1319

§1319. Enforcement

(a)(1) Whenever, on the basis of any information

available to him, the Administrator finds that any per-

son is in violation of any condition or limitation which

implements section 1311, 1312, 1316, 1317, 1318, 1328,

or 1345 of this title in a permit issued by a State un-

der an approved permit program under section 1342

or 1344 of this title, he shall proceed under his au-

thority in paragraph (3) of this subsection or he shall

notify the person in alleged violation and such State

of such finding. If beyond the thirtieth day after the

Administrator's notification the State has not com-

menced appropriate enforcement action, the Adminis-

trator shall issue an order requiring such person to

comply with such condition or limitation or shall bring

a civil action in accordance with subsection (b) of

this section... .

(3) Whenever on the basis of any information

available to him the Administrator finds that any per-

son is in violation of section 1311, 1312, 1316, 1317,

1318, 1328, or 1345 of this title, or is in violation of

any permit condition or limitation implementing any

of such sections in a permit issued under section 1342

of this title by him or by a State or in a permit issued

under section 1344 of this title by a State, he shall

issue an order requiring such person to comply with

such section or requirement, or he shall bring a civil

action in accordance with subsection (b) of this sec-

Bae

Civil actions

(b) The Administrator is authorized to commence

a civil action for appropriate relief, including a per-

manent or temporary injunction, for any violation for

which he is authorized to issue a compliance order

under subsection (a) of this section. Any action un-

der this subsection may be brought in the district

court of the United States for the district in which

the defendant is located or resides or is doing busi-

ness, and such court shall have jurisdiction to restrain

such violation and to require compliance. Notice of

the commencement of such action shall be given im-

mediately to the appropriate State.

Criminal penalties

(c)(1) Any person who willfully or negligently

violates section 1311, 1312, 1316, 1317, or 1318 of

this title, or any permit condition or limitation im-

plementing any of such sections in a permit issued

under section 1342 of this title by the Administrator

or by a State or in a permit issued under section 1344

of this title by a State, shall be punished by a fine of

not less than $2,500 nor more than $25,000 per day

of violation, or by imprisonment for not more than

one year, or by both. If the conviction is for a viola-

tion committed after a first conviction of such person

under this paragraph, punishment shall be by a fine

of not more than $50,000 per day of violation, or by

imprisonment for not more than two years, or by

both ...

(3) For the purposes of this subsection, the term

“person” shall mean, in addition to the definition con-

Ol

tained in section 1362(5) of this title, any responsible

corporate officer.

Civil penalties

(d) Any person who violates section 1311, 1312,

1316, 1317, 1318, 1328, or 1345 of this title, or any

permit condition or limitation implementing any of

such sections in a permit issued under section 1342

of this title by the Administrator, or by a State, and

any person who violates any order issued by the Ad-

ministrator under subsection (a) of this section, shall

be subject to a civil penalty not to exceed $10,000 per

day of such violation.

STATEMENT OF THE CASE

JAMES L. FREZZO, GUIDO FREZZO, and FREZZO

BROTHERS, INC. (petitioners), were charged in a six-

count indictment with willfully or negligently discharging

pollutants in violation of §§301(a) and 309(c) of the Fed-

eral Water Pollution Control Act Amendments of 1972 (the

“Act”), 33 U.S.C. §§1311(a) and 1319(c).

The case was tried to a jury and the petitioners were

convicted on all counts. The natural petitioners were sen-

tenced to thirty-day jail terms and fined a total of $50,000;

the corporate defendant was fined the sum of $50,000.

Petitioners’ conviction was affirmed by the United States

Court of Appeals for the Third Circuit. Petitioners’ Peti-

tion for Rehearing before the original panel was denied

and this timely petition for a writ of certiorari has fol-

lowed.

Guido and James Frezzo are brothers, who own and

operate a compost production and mushroom farming

facility in rural Southeastern Pennsylvania. Compost is

the growing medium for mushrooms and is essentially a

mixture of hay and horse manure. To prepare compost,

the mixture is piled on concrete platforms and allowed to

ferment. The fermentation process is facilitated by the

periodic introduction of water during various stages of the

composting, which is accomplished by utilization of a

water circulation system on the premises. Because the

composting operation takes place out of doors, rain and

snow will likewise be introduced to the composting opera-

tion.

As part of the water circulation system, as well as to

contain precipitation runoff, the petitioners constructed a

concrete tank in the early 1970's. This tank served the

duai purpose of holding water for the recycling system as

well as to contain excess runoff during rain and snowfalls.

During the trial of this action, the Government es-

tablished that on six occasions (corresponding with the

dates charged in the six-count indictment), there was a

runoff of water from petitioners’ property which contained

pollutants and which entered a navigable stream. On at

least several of these occasions, the runoff was due to un-

usually heavy rains in the area causing an overflow of the

tank; in the remaining occasions, the cause of the runoff

was not clearly established.

a eee ee

REASON FOR GRANTING THE WRIT

This Criminal Water Pollution Case Presents An Im-

portant, Unsettled Federal Law Issue Of Whether

The Administrator Of The EPA Must Give Prior

Notice, By Civil Action Or Other Non-Penal Notifi-

cation, Before Causing The Commencement Of A

Criminal Prosecution Against An Alleged Violator

Of The Federal Water Pollution Control Act Who

Was Engaged In An Agricultural Related Activity As

ps ba There Are No Promulgated Effluent Stan-

ards.

The Federal Water Pollution Control Act 62 Stat.

1155, as amended in 1972, 33 U.S.C.A. §§1251-1376 (Supp.

1973), is a complex statutory enactment designed to re-

duce, and eventually eliminate, water pollution.

In §1311(a) it is provided:

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this Title,

the discharge of any pollutants by any person shall be

unlawful.

Section 1311, in subsection (b), sets out a timetable for the

promulgation, by the Administrator of the EPA, of effluent

limitations for dischargers covered by the Act. The Ad-

ministrator of the EPA has not promulgated effluent limita-

tions applicable to mushroom farming nor compost pro-

duction. Petitioners argued in the lower court that the

absence of effluent limitations, alone, warranted the dis-

missal of the indictment in this action, relying upon United

States v. GAF Corporation, 389 F. Supp. 1379 (S.D. Tex.

1975). That case held that before an abatement order

may be issued pursuant to section 1319(a)(3) of the Act

defendants must be shown to have violated an applicable

8

effluent limitation. Relying upon American Frozen Food

Institute v. Train, 176 U.S. App. D.C. 105, 113, 539 F.2d

107, 115 (1976), and United States v. Hamel, 551 F.2d 107

(6th Cir. 1977), the Court of Appeals in the present case

rejected Petitioners’ argument suggesting that when no ef-

fluent limitations have been established for a particular

kind of activity, the proper procedure under the Act is to

apply for a permit to discharge pollutants under 33 U.S.C.

§1342(a). The Court in GAF, however, rejected this argu-

ment on the ground, in part, that the orderly implementa-

tion of the goals of the Act should properly require the

promulgation of standards by the Administrator of the EPA

before enforcement action.

The Administrator of the EPA caused the commence-

ment of the instant case by resort to criminal sanctions even

though there were no effluent standards applicable to

Petitioners and the Administrator had given no prior notice

to Petitioners that their periodic discharges might be

deemed a violation of the federal statute.

The Court of Appeals in the present case noted that

there was “conflicting legislative history” with respect to

whether a compliance order or a civil suit by the Adminis-

trator should be a prerequisite to the Governments insti-

tution of criminal proceedings under §1319(c) (602 F.2d

at 1126). The Court of Appeals, as did the District Court,

relied upon United States v. Phelps Dodge, 391 F. Supp.

1181 (D. Ariz. 1975), which had held that there were no

civil prerequisites to the Government's maintenance of

criminal proceedings under the Act.

Phelps Dodge, however, did not involve the additional

question presented in the instant case, i.e., the absence of

promulgated effluent limitations applicable to the alleged

discharger.

Te eerste se

ene repnrer es ne rts no es

At 33 U.S.C. §1319(a)(1), it is stated in pertinent

part:

Whenever, on the basis of any information available

to him, the Administrator finds that any person is in

violation . . . he shall proceed under his authority in

paragraph (3) of this subsection or he shall notify the

person in alleged violation . .. . (emphasis added).

This Congressional language sets up two options for the

Administrator when he becomes aware of a potential vio-

lation. First, he can notify the person of the alleged viola-

tion; this was not done in the present case.

His second option is found in subparagraph (3) of the

pertinent section which provides:

Whenever on the basis of any information available

to him the Administrator finds that any person is in

violation . . . he shall issue an order requiring such

person comply with such section or requirement, or

he shall bring a civil action in accordance with sub-

section (b) of this section . . . (emphasis added).

Again, no such action proceeded the criminal charges here.

The failure of the Administrator in the present case to give

such notice, or seek an abatement order to commence a

civil action, disabled the Administrator from causing the

commencement of the present criminal action.°

* Some light is shed on the intention of Congress by the lan-

guage of Senator Muskie in discussing the intent of §309 of the Act

(33 U.S.C. §1319).

In §309, the Senate receded (sic) to the House in not making

civil enforcement mandatory upon the Administrator despite

the feeling of the Senate Conferees Act, on its own merits,

mandatory civil eufo.cement is far preferable to a discretionary

responsibility. It is important to note, however, that the pro-

visions requiring the Administrator to issue an abatement order

10

It will be recalled that the Court of Appeals in the

present case rejected Petitioners’ argument that the ab-

sence of effluent standards promulgated by the Admin-

istrator should be deemed a bar to the commencement of

a criminal action; the Court of Appeals rejected this argu-

ment on the theory that Petitioners should have applied

for a discharge permit, notwithstanding the absence of

effluent standards, apparently with the belief that the EPA

should fashion an ad hoc permit program for an otherwise

unregulated activity.

The Court of Appeals did not consider that agricul-

tural activities are excluded from the Administrator's per-

mit program by regulations which date back to 1973: See

38 F.R. 18000 (July 5, 1973) (codified at 40 C.F.R. §125.4

(1975) ); 41 F.R. 28496 (July 12, 1976) (codified at 40

C.F.R. §125.4 (1978) ); see also, Natural Resources De-

fense Council, Inc. v. Train, 396 F. Supp. 1393 (D.D.C.

1975), affd, 568 F.2d 1369 (D.C. Cir. 1977).

We submit this Court should accept this case for re-

view so that the EPA Administrator's enforcement power

may be clarified.

Stiff fines, and more significantly jail sentences, for

Petitioners are a drastic way of enforcing this complex

statute, particularly where the EPA made no effort to

notify Petitioners they were in alleged violation of the

Act.

whenever there is a violation or mandatory in both the Senate

Bill and the House Amendment, and the conference agreement

contemplates that the Administrator’s duty to issue an abate-

ment order remains a mandatory one (a Legislative History of

the Water Pollution Control Act Amendments of 1972, p. 174).

A similar view was espoused by Representative Harsha in the

House during debate on the House Bill: Legislative History, id. at

530.

FR EN ee en ELS Ee ne SRR Ro eer

a

1]

(Indeed, the absence of effluent standards and pres-

ence of an agricultural exclusion from the permit program

makes this case a particularly appropriate criminal water

pollution case for the Court to review. In United States v.

Pennsylvania Chemical Corporation, 411 U.S. 655 (1973),

this Court observed:

. . . Although the regulations did not themselves pur-

port to create or define the statutory offense in ques-

tion, see United States v. Mersky, 361 U.S. 431, 4

L.Ed.2d 423, 80 S. Ct. 459 (1960), it is certainly true

that their designated purpose was to guide persons as

to the meaning and requirements of the statute. Thus,

to the extent that the regulations deprived PICCO of

fair warning as to what conduct the Government in-

tended to make criminal, we think there can be no

doubt that traditional notions of fairness inherent in

our system of criminal justice prevent the Govern-

ment from proceeding with the prosecution. See New-

man, Should Official Advice Be Reliable?—Proposals

as to Estoppel and Related Doctrines in Administra-

tive Law, 53 Col.L.Rev. 374 (1953); Note, Applying

Estoppel Principles in Criminal Cases, 78 Yale LJ 1046

(1969). (411 U.S. at 674)

12 la

CONCLUSION APPENDIX A

For the foregoing reasons, petitioners pray that the DISTRICT COURT DECISION

petition for certiorari should be granted and the judgment

of the United States Court of Appeals for the Third Cir-

cuit reversed and the indictment dismissed.

UNITED STATES DISTRICT COURT

Respectfully submitted,

By: /s/ John Rogers Carroll

JOHN ROGERS CARROLL

/s/ Thomas Colas Carroll

THOMAS COLAS CARROLL

CARROL CREAMER CARROL

& DUFFY

Attorneys for Petitioners

326 Three Penn Center Plaza

Philadelphia, Pennsylvania 19102

(215) 568-5200

DATED: November 21, 1979

Crim. No. 78-218.

E. D. Pennsylvania.

Nov. 22, 1978.

UNITED STATES of America

vs.

FREZZO BROTHERS, INC., Guido

Frezzo, James L. Frezzo.

Jury found defendants guilty of willfully or negligently

discharging pollutants in violation of the Federal Water

Pollution Control Act Amendments of 1972, and defend-

ants moved for judgment of acquittal or a new trial. The

District Court, Raymond J. Broderick, J., held that: (1)

issuance of an order or institution of a civil suit by the

administrator of the Environmental Protection Agency was

not prerequisite to filing of criminal prosecution; (2) where

defendants never obtained or applied for a permit, any

discharge of pollutants by them would be unlawful even

though no effluent standards were applicable to them; (3)

evidence was sufficient to support finding of guilt, and (4)

language in indictment concerning capacity in which indi-

vidual defendants committed the crime was surplusage and

did not need to be proved, and the jury did not have to be

so charged.

Motions denied.

1. Criminal Law—753.2(2)

Contentions that court erred in denying pretrial motion

to dismiss indictment should properly have been raised in

a motion for arrest of judgment rather than motion for

judgment of acquittal or new trial. Fed. Rules Crim. Proc.

rule 34, 18 U.S.C.A.

2. Navigable Waters—35

Neither issuance of an order notifying defendants of al-

leged violations of the Federal Water Pollution Control

Act nor institution of a civil suit by administrator of the

Environmental Protection Agency was prerequisite to fil-

ing a criminal prosecution for willfully or negligently dis-

charging pollutants in violation of the Act. Federal Water

Pollution Control Act, §§ 301(a), 309(c) as amended 33

US.C.A. §§ 1311(a), 1319(c).

3. Navigable Waters—35

Where defendants never obtained or applied for a per-

mit, any discharge of pollutants by them would be unlaw-

ful under the Federal Water Pollution Control Act even

though no effluent standards were applicable to them. Fed-

eral Water Pollution Control Act, § 301(a) as amended 33

U.S.C.A. § 1311(a).

4. Navigable Waters—35

In prosecution for willfully or negligently discharging

pollutants in violation of the Federal Water Pollution Con-

trol Act Amendments of 1972, evidence was sufficient to

support findings that each of the defendants discharged

pollutants willfully or negligently in connection with runoff

from compost used in mushroom growing, that individual

defendants were owners or corporate officers of the corpo-

rate defendant, and that corporate defendant owned the

3a

property and controlled the compost operation. Federal

Water Pollution Control Act, §§ 301(a), 309(c), 502(6)

as amended 33 U.S.C.A. §§ 1311(a), 1319(c), 1362(6).

5. Criminal Law—494

In prosecution for willfully or negligently discharging

pollutants into stream, testimony of expert provided suffi-

cient actual basis for his opinion that condition or pollu-

tion of stream was caused by discharge from defendants’

. property.

6. Criminal Law—673(4)

In prosecution for pollution violations, there was no er-

ror in admitting into evidence a certain statement and

letter written by one of the defendants subject to instruc-

tion that the statement and letter were admissible only as

to that defendant, where, in light of other evidence against

the other defendants, the statement and letter were not

powerfully incriminating or highly damaging to those de-

fendants or of substantial weight in the Government's case

against those defendants.

7. Criminal Law—793

Indictment and Information—167

In prosecution for willfully or negligently discharging

pollutants in violation of the Federal Water Pollution Con-

trol Act, language concerning the capacity in which indi-

vidual defendants committed the crime, referring to them

as co-owners and officers of defendant corporation, was

surplusage and did not need to be proved, and thus there

was no error in omitting such language in charge to the

jury concerning the individual defendants. Federal Water

Pollution Control Act, §§ 301(a), 309(c), 502(5) as

amended 33 U.S.C.A. §§ 1311(a), 1319(c), 1362(5).

4a

8. Searches and Seizures—7 (26)

In prosecution for water pollution violations, defendants

lacked standing to object to seizure of samples taken from

a channel box which was not located on defendants’ prop-

erty, where there was no evidence that defendants were

on the premises at the time of the seizure of the samples,

that they had a legitimate proprietary or possessory interest

in the premises from which the seizure was made, or that

defendants were charged with an offense that includes as

an essential element of the offense possession of the sam-

ples seized.

Peter F. Vaira, U.S. Atty., Bruce J. Chasan, Asst. U.S.

Atty., Eastern District of Pennsylvania, Philadelphia, Pa.,

Michael P. Carlton, Sp. Atty., Dept. of Justice, Washing-

ton, D.C., for plaintiff.

William J. Gallagher, MacElree, Harvey, Gallagher &

Kean, Ltd., West Chester, Pa., for defendants.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Defendants, Frezzo Brothers, Inc. (Frezzo Bros. ), Guido

Frezzo (Guido) and James L. Frezzo (James), were found

guilty by a jury on all six counts of an indictment charg-

ing them with willfully or negligently discharging pollu-

tants in violation of Sections 301(a) and 309(c) of the

Federal Water Pollution Control Act Amendments of 1972

(the Act), 33 U.S.C. §§ 1311(a), 1319(c) (1970 ed. Supp.

IV). Defendants have filed a motion for judgment of ac-

quittal. In the alternative, they have moved for a new

trial. Oral argument was had on the motions. For the

reasons hereinafter set forth, defendants’ motions will be

denied.

5a

I. Motion for Judgment of Acquittal.

[1] In their motion for judgment of acquittal, defendants

make the following contentions:

(A) That the Court erred in denying the defendants’

pretrial motion to dismiss the indictment for failure of the

Administrator of the Environmental Protection Agency

(EPA) either to notify the defendants of alleged violations

or to institute a civil suit against them, prior to the institu-

tion of criminal proceedings;

(B) That the Court erred in denying the defendants’

pretrial motion to dismiss the indictment on the ground

that there were no effluent standards applicable to defend-

ants;' and

(C) That there was insufficient evidence presented to

prove that the alleged discharge of pollutants was caused

either willfully or negligently by any of the defendants,

that any of the defendants discharged the pollutants, that

the individual defendants were either owners or corporate

officers of Frezzo Bros. at the time of the alleged offenses,

and that Frezzo Bros. owned the property in question or

operated the holding tank in question at the time of the

alleged offenses.

[2] In connection with the defendants’ contentions that

the issuance of an order or the institution of a civil suit by

the Administrator is a prerequisite to the filing of a crim-

inal prosecution, we agree with the decision of the court

in United States v. Phelps Dodge Corp., 391 F. Supp. 1181

(D.Ariz.1975), which considered and rejected this same

1. The first two contentions of the defendants should properly

have been raised in a motion for arrest of judgment, Fed. R. Crim.

P. 34; 2 Wright, Federal Practice and Procedure: Criminal §§571-

574 (1969). We have considered these contentions as if they were

raised in such a motion and deny the motion for the reasons stated

herein.

6a

contention. In Phelps Dodge, the Court concluded that

the Administrator is “not required to proceed first to effect

a correction by civil means before instituting criminal pro-

ceedings.” Id. at 1184. Thus, we find that we correctly

denied the defendants’ motion to dismiss.

[3] In connection with the defendants’ contention that

the indictment should have been dismissed because of the

lack of effluent standards applicable to the defendants, we

read Section 301(a) of the Act as clearly prohibiting the

discharge of pollutants without a permit by any person,

except as in compliance with certain sections of the Act

which the defendants do not contend are applicable. 33

U.S.C. §§ 1311(a) (1970 ed., Supp. IV). The defendants

acknowledge that they neither have a permit nor have they

applied for one. In interpreting Section 301(a) of the

Act, the Supreme Court has stated that “it is unlawful for

any person to discharge a pollutant without obtaining a

permit and complying with its terms.” EPA v. State Water

Resources Control Board, 426 U.S. 200, 205, 96 S.Ct.

2022, 2025, 48 L.Ed.2d 578 (1976); see Train v. Colo-

rado Public Interest Research Group, 426 U.S. 1, 7, 96

S.Ct. 1938, 48 L.Ed.2d 434 (1976); Natural Resources

Defense Council, Inc. v. Costle, 568 F.2d 1369, 1374, 186

U.S.App.D.C. 147 (1977) (“the legislative history [of the

Act] makes clear that Congress intended the . . . permit to

be the only means by which a discharger [of pollutants]

... may escape the total prohibition of § 301(a)”); Beth-

lehem Steel Corp. v. Train, 544 F.2d 657, 659 ( 3d Cir.),

cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369

(1976) (“all discharges of pollutants must be authorized

by a permit... .”). Because the defendants admit that

they never obtained or applied for a permit, any discharge

of pollutants by them would be unlawful under Section

301(a), even though no effluent standards are applicable

to them. Thus, we correctly denied the defendants’ mo-

Ta

tion to dismiss on the ground that there were no applicable

effluent standards.

[4] In connection with defendants’ contention that the

evidence was insufficient, we find that the evidence pro-

duced at trial, viewed in a light most favorable to the Gov-

ernment, Glasser v. United States, 315 U.S. 60, 80, 62 S.

Ct. 457, 86 L.Ed. 680 (1942); United States v. Armocida,

515 F.2d 29, 46 (3d Cir.), cert. denied, 423 U.S. 858, 96

S.Ct. 111, 46 L.Ed.2d 84 (1975), is more than sufficient

to support the verdict. We summarize it as follows:

The defendants, Guido and James, are President and

Secretary, respectively, of the defendant corporation,

Frezzo Bros., a family business formed in the 1950's en-

gaged in the growing of mushrooms and the manufacturing

of mushroom compost necessary for growing mushrooms.

The primary ingredient of mushroom compost is horse

manure. The Frezzo Bros. property (the Frezzo prop-

erty) is located on the east side of Penn Green Road, near

Avondale, Chester County, Pennsylvania. A concrete hold-

ing tank constructed on the property in 1971 gathers

the water runoff from the compost and, by a system of

pumps, recirculates the water runoff back onto the com-

post. In addition, a storm water runoff system separate

from the compost operations carries rainwater from the

property, under Penn Green Road through a pipe which

runs for approximately 200 feet from the Frezzo property

into an unnamed tributary of the East Branch of the White

Clay Creek. The White Clay Creek crosses the Delaware

state line and runs into the Christina River, which in turn

runs into the Delaware River. On each of the six dates

charged in the indictment, runoff from the compost pile

made its way into the storm water runoff system and was

carried through the pipe into the tributary of the White

Clay Creek. A channel box is located about ten feet west

8a

of the Penn Green Road, across the street from the Frezzo

property. By lifting the cover on this channel box, one can

observe the drainage from Frezzo Bros. storm water run-

off system as it flows through the pipe toward the White

Clay Creek.

The evidence presented by the Government showed that

samples of the discharge from the Frezzo property were

taken on each of the six dates charged in the indictment,

and many of these samples were introduced as exhibits at

trial. The testimony and stipulations of various chemists

and physical scientists demonstrated that chemical and

bacteriological tests were properly conducted on each of

the samples and that the discharges were “sewage, inas-

much as the results of the tests showed that the samples

contained higher concentrations of pollution-producing

chemicals and bacteria than untreated human sewage. In

addition, one physical scientist testified that the test results

clearly indicated that the discharges contained “biological

materials” and that the discharges were also “sewage.

“Sewage” and “biological materials” are terms specifically

included in the Act’s definition of “pollutant.” 33 U.S.C.

§ 1362(6) (1970 ed. Supp. IV).

The Government introduced as exhibits at trial several

photographs which showed not only the layout of the

Frezzo property, but also the path that runoff from the

compost pile would follow in entering the storm water

runoff system, through which it would be carried from the

Frezzo property through the channel box into the unnamed

tributary of the East Branch of the White Clay Creek.

One witness testified that he had actually walked along

the path of the pipe from Penn Green Road to the pipe's

end at the tributary and that there were no other mush-

room manufacturers upgrade of the channel box. He fur-

ther testified that results of analyses of samples from the

channel box and from the White Clay Creek substantiated

9a

his conclusion that the pollution in the White Clay Creek

came from the Frezzo property. Therefore, his stated opin-

ion was that the pollution of the White Clay Creek was

due primarily to the discharge from the Frezzo property.

In addition, there was testimony concerning the amount

of rainfall in the area and that the holding tank was not

large enough to contain normal rainfall.

Testimony was presented by several witnesses that on

many occasions, commencing as far back as 1970, the de-

fendants in this case had been investigated, visited and

confronted by a number of state and county employees

concerning the fact that the stream in question was being

polluted by runoff from the compost operation conducted

by the defendants on the Frezzo property.

Testimony in connection with the articles of incorpora-

tion of Frezzo Bros., which were introduced as an exhibit

by the Government, demonstrated that the corporation

was incorporated in 1969 under the laws of Pennsylvania

and that James and Guido were two of the three original

directors. The Government also introduced as an exhibit

a deed dated February 2, 1973 which listed Frezzo Bros.

as grantor and which contained notarized signatures of

Guido as President and James as Secretary. On a visit to

the Frezzo property on November 16, 1976, an environ-

mental specialist with the Pennsylvania Department of

Environmental Resources (the DER), upon asking to speak

to a responsible official of the company, was directed to

James. He questioned James concerning a brown-colored

liquid flowing in the White Clay Creek coming from a pipe

he had traced to the Frezzo property. A letter dated Octo-

ber 4, 1971 from James to the DER, introduced as an ex-

hibit by the Government, indicated that James knew that

the holding tank was inadequate. One witness testified that

at a visit to the Frezzo property on January 12, 1978, he

was given a tour of the premises by James and Guido, who

10a

indicated their control and ownership of the premises. in-

cluding the holding tank; they also told him that they had

constructed the storm runoff system. This witness made

an in court identification of both James and Guido. In

addition, there was testimony that on May 9, 1978 James

made the statement that “we can control our waters 95% of

the time.” * Finally, there was testimony that the Frezzo

property was listed at the tax assessor's office in the Chester

County Courthouse as belonging to the corporation.

The Government's case was strong, and there can be no

doubt that the evidence was sufficient to support the jury's

verdict as to each of the defendants and as to each of the

six counts of the indictment. The evidence amply sup-

ports a finding by the jury that each of the defendants dis-

charged pollutants willfully or negligently, that James and

Guido were owners or corporate officers of Frezzo Bros.,

and that Frezzo Bros. owned the property and controlled

the compost operation. We therefore reject the defend-

ants’ contention that the evidence produced at trial was

insufficient to support the verdict of the jury.

II. Motion for a New Trial.

Defendants claim the following errors in support of their

motion for a new trial:

(A) That the Court erred when it failed to strike the

opinion offered by Richard Casson to the effect that the

condition or pollution of the stream at the Ellicott Ave-

nue Bridge was caused by the discharge from the Frezzo

property;

2. The Court instructed the jury that the contents of the Oc-

tober 4, 1971 letter and this statement should be used as evidence

only against James and not against Guido or Frezzo Bros. The de-

fendants challenge the admissibility against Guido and Frezzo Bros.

of the letter and this statement. See our discussion at page 271-272,

infra.

=

lla

(B) That the Court erred when it overruled the de-

fendants’ objections to the statement made by James on

May 9, 1978 and to the reading of Government exhibit

No. 41;

(C) That the Court erred when it failed to give defend-

ants’ point for charge No. 5 that the mere discharge of a

pollutant is not a criminal offense;*

(D) That the Court erred when it advised the jury that

the individual defendants could be found guilty outside

their capacity as alleged co-owners and responsible officers

of the corporation; and

(E) That the Court erred when it denied the defend-

ants’ motion to suppress samples taken from the channel

box.

A. The Opinion of Richard Casson.

[5] In connection with the defendants’ contention that

the opinion offered by Mr. Casson that the condition or

pollution of the stream of the East Branch of the White

Clay Creek at the Ellicott Avenue Bridge was caused by

the discharge from the Frezzo property should have been

stricken for lack of a factual basis, we find that our ruling

at trial was correct. Mr. Casson testified that he had on

several occasions observed the flow of the discharge from

the Frezzo property to the Ellicott Avenue Bridge. In

addition, he testified that a comparison of the results of

the analyses of samples from the channel box and samples

from the White Clay Creek substantiated his conclusion.

Thus, we find that there was a sufficient factual basis for

3. We note that the defendants’ requested point for charge re-

fered to is actually point for charge No. 6, rather than point for

charge No. 5: “The mere happening of a discharge is not sufficient

to show the discharge was intentional or negligent.”

12a

Mr. Casson’s opinion. See United States v. R. J. Reynolds

Tobacco Co., 416 F. Supp. 313 (D.N.J.1976).

B. Statement and Letter of James.

[6] The defendants, Guido and Frezzo Bros., contend

that the Court erred in admitting into evidence a statement

made by James on May 9, 1978 and the contents of a letter

written by James to the DER on October 4, 1971, despite

the Court’s instruction to the jury that the letter and the

statement were admissible only as to James. Neither the

statement made by James nor the pertinent contents of the

letter fall within the Bruton rule, as defendants contend.

Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20

L.Ed.2d 476 (1968). In Bruton, the Supreme Court held

that the admission of a co-defendant’s confession implicat-

ing the defendant was a violation of the defendant's right

to cross-examine witnesses against him, even if it was ad-

mitted with a cautionary instruction to the jury that the

statement was only to be considered as evidence against

the co-defendant. But implicit within this ruling was the

4. The May 9, 1978 statement by James, “We can control our

waters 95% of the time,” and his letter of October 4, 1971, wherein

he stated “I planned on an additional tank for water storage. This

would help me better contain run-off and rainwater.... I am still

considering the installation of another holding tank,” which letter

he signed “James Frezzo, Partner,” clearly indicate, in light of other

evidence presented in the case, that these statements were made

by James in his capacity as co-owner and/or corporate officer of

Frezzo Bros. and would probably be admissible against Frezzo

Bros. Furthermore, since declarations of one partner in crime are

admissible against his confederates where, as here, they were made

in furtherance of a joint criminal venture and there is sufficient

evidence independent of these statements to indicate the existence

of such a venture, such statements probably would have been

admissible against Guido and perhaps the corporation. United

States v. Trowery, 542 F.2d 623, 627 (3d Cir. 1976); United States

v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945). In an abundance of

caution, however, at the request of the defendants the Court in-

structed the jury to consider the statements only against James.

a oe

13a

rationale that the statement represent a “powerfully in-

criminating extrajudicial statement” which was highly dam-

aging to the defendant and which was of critical, or at

least substantial, weight to the Government's case. 391

U.S. at 128, 135-38, 88 S. Ct. 1620; United States v. Mun-

ford, 431 F. Supp. 278, 291 (E.D.Pa.1978). In light of

the other evidence against defendants Guido and Frezzo

Bros., we find that the statements involved here were not

powerfully incriminating, highly damaging to these de-

fendants, or of substantial weight to the Governments case

against these defendants. Thus, we find that our rulings

with respect to the May 9, 1978 statement of James and

the letter from James to the DER were correct.

C. Point for Charge No. 5.

Defendants’ contention (C), that the Court failed to

charge the jury that the mere discharge of a pollutant is

not a crime, is without merit because the Court in fact

specifically charged the jury as follows:

In connection with the second element, therefore, the

burden is on the Government to prove beyond a reason-

able doubt that the defendants’ discharge of the pol-

lutant was done willfully or negligently and the mere

discharge of the pollutant, without proof that it was done

either willfully or negligently, does not satisfy the Gov-

ernment’s burden of proof beyond a reasonable doubt

that the discharge was done willfully or negligently.

D. Charge of Court Concerning Individual Defendants.

[7] The individual defendants contend that the Court

erred in its charge to the jury concerning them. They

point to the indictment which charges that James, “an indi-

vidual in his capacity as co-owner and Secretary of Frezzo

Brothers, Inc.” violated Sections 301(a) and 309(c) of the

l4a

Act and that Guido, “an individual in his capacity as co-

owner and President of Frezzo Brothers, Inc.” violated

Sections 301(a) and 309(c) of the Act, and they claim

that the Court erred in omitting this language in its charge

to the jury concerning the individual defendants.

The statute creates an offense, the gravamen of which

is the willful or negligent discharge of a pollutant by any

person without a permit. It does not create a separate

offense for such a discharge by a person in his capacity as

a co-owner or an officer of a corporation or in any other

capacity.” In the Court's charge, the jury was instructed

that the Government had a burden to prove beyond a

reasonable doubt all of the essential elements of the crime

as to each defendant.’ The charge stated that the essen-

5. The Act defines “person” as follows:

The term “person” means an individual, corporation, part-

nership, association, State, municipality, commission, or po-

litical subdivision of a State, or any interstate body. 33 U.S.C.

§1362(5) (1970 ed. Supp. IV).

The Act also provides that for purposes of section 309(c), “the

term ‘person’ shall mean, in addition to the definition contained

in section 1362(5) of this title, any responsible corporate officer.”

33 U.S.C. §1319(c) (1970 ed. Supp. IV). The Court charged the

jury concerning the meaning of the phrase “responsible corporate

officer.”

6. The Court charged the jury as follows:

Now, the essential elements that must be found beyond a

reasonable doubt before you may find a defendant guilty of vio-

lating those sections—in other words, Title 32, Section 1311(a)

and 1319(c)—are that on or about the dates alleged in the

indictment—and I have read those dates to you, and you will

have it with you cut there.

These are the elements:

Number 1. That the defendant discharged a pollutant;

Number 2. That the defendant’s discharge of the pollutant

was done willfully or negligently;

Third. That the defendant did not have a permit to dis-

charge the pollutant.

ree were eee

15a

tial elements of the crime consisted of the willful or negli-

gent discharge of a pollutant without a permit. Inasmuch

as the capacity in which one discharges the pollutant is not

an essential element of the crime, the language of the

indictment alleging that James and Guido each acted in

his capacity as co-owner and/or Secretary and President

of Frezzo Bros. goes beyond alleging matters which are

essential elements of the crime. Language in an indict-

ment which goes beyond alleging matters which are essen-

tial elements of the crime charged is surplusage and need

not be proved. United States v. Greene, 497 F.2d 1068,

(L086 (7th Cir. 1974), cert. denied, 420 U.S. 909, 95 S. Ct.

829, 42 L.Ed.2d 839 (1975); United States v. Goodwin,

440 F.2d 1152, 1157 (3d Cir. 1971). It therefore follows

that the language concerning the capacity in which James

and Guido committed the crime is surplusage and need

not be proved, and the jury need not have been so charged.

In their memorandum of law in support of their motion

for a new trial, the defendants allege a fatal variance be-

tween the indictment and the Court’s charge. The Court

finds no basis for such a contention. Defendants rely on

United States v. Smolar, 557 F.2d 13 (1st Cir. ), cert. denied,

434 U.S. 971, 98 S. Ct. 523, 54 L.Ed.2d 461 (1977), which

held that the Court may not in its instruction change the

charging part of an indictment “to suit its own notions of

what it ought to have been, or what the grand jury would

probably have made it if their attention had been called

to suggested changes.” Id. at 19 (quoting Stirone v.

United States, 361 U.S. 212, 216, 80 S. Ct. 270, 4 L. Ed.

2d 252 (1960) ). The fact that the charge did not mention

co-owners and officers of Frezzo Bros. did not in any way

change the charging part of the indictment as discussed in

Smolar. The indictment was read to the jury and it went

out with the jury during its deliberations. Furthermore,

all of the evidence presented by the Government concern-

16a

ing James and Guido pointed to the fact that they were

in control of the operation of Frezzo Bros. We are, there-

fore, unable to find any error in the charge.

E. Motion to Suppress.

[8] Defendants contend that the Court should have

ordered the suppression of all of the samples taken from

the channel box on the west side of Penn Green Road,

which channel box was not located on the Frezzo property.

At the suppression hearing, however, there was no evi-

dence presented that the defendants were on the premises

at the time of the seizure of the samples, that the de-

fendants had a legitimate proprietary or possessory in-

terest in the premises or that the defendants were charged

with an offense that includes as an essential element of

the offense possession of the samples seized. Brown v.

United States, 411 U.S. 228, 230, 98 S. Ct. 1565, 36 L.Ed.

2d 208 (1973). Thus, the defendants lacked standing to

object to the seizure of the samples taken from the channel

box, and we correctly denied their pretrial motion to sup-

press.

While we do not herein discuss all the contentions of

alleged error raised by the defendants, we have considered

each and every allegation of error and hold that none of

them, singly or collectively, is of sufficent substance to

merit any further discussion as a basis for granting a

judgment of acquittal or a new trial in this case.

Accordingly, an Order will be entered denying the de-

fendants motions for judgment of acquittal and a new

trial.

17a

APPENDIX B

COURT OF APPEALS DECISION

UNITED STATES COURT OF APPEALS

Third Circuit

Nos. 78-2670 to 78-2675.

UNITED STATES of America,

Appellee,

vs.

FREZZO BROTHERS, INC., Guido

Frezzo, and James L. Frezzo,

Appellants.

Argued June 7, 1979.

Decided July 13, 1979.

Defendants were convicted in the United States District

Court for the Eastern District of Pennsylvania, Raymond

J. Broderick, J., of willfully or negligently discharging pol-

lutants into navigable water of the United States without

a permit, and they appealed. The Court of Appeals, Ro-

senn, Circuit Judge, held that: (1) there were no civil

prerequisites to government's maintenance of criminal pro-

ceedings under the Act; (2) there was no requirement that

Environmental Protection Agency promulgate effluent

standards applicable to compost-manufacturing business

prior to prosecution; and, (3) evidence supported convic-

tions.

Affirmed.

18a

1. Navigable Waters—35

There are no civil prerequisites to government’s mainte-

nance of criminal proceedings under the Federal Water

Pollution Control Act. Federal Water Pollution Control

Act Amendments of 1972, §309(c), 33 U.S.C.A. §1319(c).

2. Navigable Waters—35

There is no requirement that defendants be shown to

have not complied with existing effluent limitations under

the Federal Water Pollution Control Act before violation

of section prohibiting willfully or negligently discharging

pollutants into navigable water of the United States with-

out a permit. Federal Water Pollution Control Act

Amendments of 1972, §301(a), 33 U.S.C.A. §1311(a).

3. Navigable Waters—35

Promulgation of effluent limitations standards is not a

prerequisite to maintenance of criminal proceeding based

on violation of section of the Federal Water Pollution Con-

trol Act Amendments of 1972 prohibiting willful or negli-

gent discharge of pollutants into navigable waters of the

United States without a permit. Federal Water Pollution

Control Act Amendments of 1972, §301(a), 33 U.S.C.A.

§1311(a).

4. Navigable Waters—35

Evidence, in prosecution for willful or negligent dis-

charge of pollutants into navigable water of the United

States without a permit, was sufficient to support convic-

tions. Federal Water Pollution Control Act Amendments

of 1972, §§101-517, 301(a), 309(c), 33 U.S.C.A. §§1251-

1376, 1311(a), 1319(c).

19a

5. Criminal Law—870

Special verdicts are generally disfavored in criminal

cases.

6. Criminal Law—798%

Where evidence was sufficient to sustain each count of

willful or negligent discharge of pollutants into navigable

water of United States without a permit on theory of will-

ful discharge on counts one through four and on theory of

negligent discharge under counts five and six, there was

no compelling necessity for special verdict, particularly in

light of fact that there is no variance in statutory penalty

between willful and negligent violations and, therefore,

trial judge did not abuse discretion in declining to submit

special verdict. Federal Water Pollution Control Act

Amendments of 1972, §§101-517, 301(a), 309(c), 33 U.S.

C.A. §§1251-1376, 1311(a), 1319(c).

William J. Gallagher (argued), Randy L. Sebastian,

MacFElree, Harvey, Gallagher & Kean, Ltd., West Chester,

Pa., for appellants.

Peter F. Vaira, U.S. Atty., Walter S. Batty, Jr., Asst.

U.S. Atty., Chief, App. Div., Bruce J. Chasan (argued),

Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS and ROSENN, Circuit Judges, and

LACEY, District Judge. °

OPINION OF THE COURT

ROSENN, Circuit Judge.

Since the enactment in 1948 of the Federal Water Pol-

lution Control Act, 62 Stat. 1155 (“the Act”), the Govern-

ment has, until recent years, generally enforced its provi-

*Honorable Frederick B. Lacey, United States District Judge for

the District of New Jersey, sitting by designation.

20a

sions to control water pollution through the application of

civil restraints.’ In this case, however, the Government in

the first instance has sought enforcement of the Act as

amended in 1972, 33 U.S.C.A. §§1251-1376 (Supp. 1973),

against an alleged corporate offender and its officers by

criminal sanctions. Whether the Government may pursue

the criminal remedies under the Act before instituting a

civil action or before giving written notice of the alleged

violation is the principal issue presented in this appeal.

The appellants were convicted by a jury on six counts

of willfully or negligently discharging pollutants into a

navigable water of the United States without a permit, in

violation of 33 U.S.C. §§1311(a), 1319(c). The corporate

defendant, Frezzo Brothers, Inc., was fined $50,000, and

the individual defendants, Guido and James Frezzo re-

ceived jail sentences of thirty days each and fines aggre-

gating $50,000. The Frezzos appeal from the trial court’s

final judgment of sentence. We affirm.

I.

Frezzo Brothers, Inc., is a Pennsylvania corporation

engaged in the mushroom farming business near Avondale,

Pennsylvania. The business is family operated with Guido

and James Frezzo serving as the principal corporate of-

ficers. As a part of the mushroom farming business, Frezzo

Brothers, Inc., produces compost to provide a growing

1. In a comprehensive analysis made in 1973 of the use of crim-

inal sanctions under the Federal Water Pollution Act, Michael K.

Glenn, former deputy assistant administrator for federal water en-

forcement, pointed out that: “[D]uring the past 25 years the federal

government has relied almost exclusively on negotiation, public

pressure, and voluntary compliance by dischargers as the principal

means of achieving compliance with federal water pollution control

laws.” Glen, The Crime of “Pollution”: The Role of Federal Water

Pollution Criminal Sanctions, 11 Am.Crim.L.Rev. 835, 836 (1973)

(footnote omitted ).

itt eee te EOE AE EDs RAAT ta Nit

2la

base for the mushrooms. The compost is comprised

mainly of hay and horse manure mixed with water and

allowed to ferment outside on wharves.

The Frezzo’s farm had a 114,000 gallon concrete holding

tank designed to contain water run-off from the compost

wharves and to recycle water back to them. The farm

had a separate storm water run-off system that carried

1ain water through a pipe to a channel box located on an

adjoining property owned by another mushroom farm.

The channel box was connected by a pipe with an unnamed

tributary of the East Branch of the White Clay Creek.

The waters of the tributary flowed directly into the Creek.

Counts One through Four of the indictment charged the

defendants with discharging pollutants into the East

Branch of the White Clay Creek on July 7, July 20, Sep-

tember 20, and September 26, 1977. On these dates

Richard Casson, a Chester County Health Department in-

vestigator, observed pollution in the tributary flowing into

the Creek and collected samples of wastes flowing into the

channel box. The wastes had the distinctive characteristics

of manure and quantitative analysis of the samples re-

vealed a concentration of pollutants in the water. The

Government introduced meteorological evidence at trial

showing that no rain had been recorded in the area on

these four dates. Based on this evidence, the Government

contended that the Frezzos had willfully discharged ma-

nure into the storm water run-off system that flowed into

the channel box and into the stream.

Investigator Casson returned to the Frezzo farm on Janu-

ary 12, 1978, to inspect their existing water pollution abate-

ment facilities. Guido and James Frezzo showed Casson

both the holding tank designed to contain the waste water

from the compost wharves, and the separate storm water

run-off system. Casson returned to the farm on May 9,

22a

1978 with a search warrant and several witnesses. This

visit occurred after a morning rain had ended. The

witnesses observed the holding tank overflowing into the

storm water run-off system. The path of the wastes from

the Frezzo holding tank to the channel box and into the

stream was photographed. James Frezzo was present at

the time and admitted to Casson that the holding tank

could control the water only 95% of the time. Samples

were again collected, subjected to quantitative analysis

and a high concentration of pollutants was found to be

present. This incident gave rise to Count Five of the

indictment.

Additional samples were collected from the channel box

on May 14, 1978, after a heavy rain. Again, a concentra-

tion of pollutants was found to be present. This evidence

served as the basis for Count Six of the indictment. At

trial, the Government introduced evidence of the rainfall

on May 9 and May 12 along with expert hydrologic testi-

mony regarding the holding capabilities of the Frezzo’s

tank. The Government theorized that the holding tank

was too small to contain the compost wastes after a rain-

storm and that the Frezzos had negligently discharged

pollutants into the stream on the two dates in May.

The jury returned guilty verdicts on all six counts

against the corporate defendant, Frezzo Brothers, Inc.,

and individual defendants, Guido and James Frezzo. The

trial court denied the defendants’ motions for judgment of

acquittal and new trial in a memorandum opinion, United

States v. Frezzo Brothers, Inc., 461 F. Supp. 266 (E.D.Pa.

1978).

II.

[1] The Frezzos first argue that the Administrator of

the Environmental Protection Agency must either give

them some notice of alleged violations of the Federal

Water Pollution Control Act, or institute a civil action

before pursuing criminal remedies under the Act, Judge

Broderick, the trial judge, rejected this argument, 461

F. Supp. at 268, relying primarily on United States v.

Phelps Dodge, 391 F. Supp. 1181 (D. Ariz. 1975), which

held that there were no civil prerequisites to the Govern-

ment’s maintenance of criminal proceedings under the

Act. We agree.

The enforcement provisicas of the Act are contained in

33 U.S.C. §1319. The criminal provision of the Act,

§1319(c) provides in relevant part:

(1) Any person who willfully or negligently violates

section 1311 .. . of this title . . . shall be punished by

a fine of not less than $2,500 nor more than $25,000

per day of violation, or by imprisonment for not more

than one year, or by both. . . .

This provision is preceded by §1319(a) dealing with

state enforcement and compliance orders, and §1319(b)

governing civil actions. There is conflicting legislative

history with respect to whether a compliance order or a

civil suit by the Administrator should be a prerequisite to

the Government's institution of criminal proceedings under

§1319(c).2 The district court in Phelps Dodge, however,

relied on the final House Committee Report which clearly

indicated that written notice of the violation, administra-

tive, civil or criminal remedies under the Act were to be al-

2. Senator Muskie expressed the view in the Senate’s considera-

tion of the Conference Committee Report that an abatement order

or civil action was mandatory under the Act. A Legislative History

of the Federal Water Pollution Control Act Amendments of 1972,

U.S. Government Printing Office, at 174. A similar view was es-

poused by Representative Harsha in the House during debate on

the House Bill. Legislative History, supra at 530.

24a

ternative remedies. The key portion of the House Com-

mittee Report provides:

Whenever on the basis of any information available

to him the Administrator finds that anyone is in viola-

tion of any of these requirements, he may take any of

the following enforcement actions: (1) he shall issue an

order requiring compliance; (2) he shall notify the

person in alleged violation in such state of such finding

.. or (3) he shall bring a civil action; or (4) he shall

cause to be instituted criminal proceedings.

Legislative History, supra at 801-02 (emphasis supplied).

This statement led the court in Phelps Dodge to conclude

that the Administrator “is not required to proceed first to

effect a correction by civil means before instituting criminal

proceedings.” 391 F. Supp. at 1184. An identical result

was reached by the court in U.S. v. Hudson Farms, Inc.,

12 E.R.C. 1144, 1146 (E.D.Pa. 1978).

We believe that these cases place a correct gloss on the

enforcement provisions of the Act.* There is nothing in

the text of §1319(c) that compels the conclusion that prior

written notice, other administrative or civil remedies are

prerequisite to criminal proceedings under the Act. The

Senate acceded to the House in not making civil enforce-

ment mandatory upon the Administrator under section

1319. Legislative History, supra at 174. Hence, we can

only conclude that whatever support existed for the posi-

tion urged by the Frezzos did not prevail in the enactment

of the final Bill.

3. This case was decided after the district court’s decision in the

present case and hence was not considered by the court reaching

its decision.

4. For a general review of the 1972 amendments see Comment,

The Federal Water Pollution Control Act Amendments of 1972,

1973 Wis. L. Rev. 893 (1973).

25a

Further, we see no reason why the Government should

be hampered by prerequisites to seeking criminal sanctions

under the Act. The Frezzos urge that it can only be

through prior notification, followed by continued polluting

in the face of such notice, that willful violations of the

Act can be established. We find this argument uncon-

vincing. Although continued discharges after notification

could be one way for the Government to prove scienter,

it is certainly not the only way to establish willful viola-

tions. The Government could logically argue, as it did in

this case, that the circumstances surrounding the alleged

discharges manifested willful violations of the Act and

that it had the power to pursue criminal rather than civil

sanctions. Furthermore, in view of the broad responsi-

bilities imposed upon the Administrator of the EPA, he

should be entitled to exercise his sound discretion as to

whether the facts of a particular case warrant civil or

criminal sanctions.’ We therefore hold that the Admin-

istrator of the EPA is not required to pursue administrative

or civil remedies, or give notice, before invoking criminal

sanctions under the Act.

III.

[2] The Frezzos next contend that the indictment

should have been dismissed because the EPA had not pro-

5. There is evidence in the Legislative History of the 1972

Amendments to the Act that the new criminal sanctions were de-

signed to strengthen the ability of the Government to pursue crimi-

nal remedies for water pollution. See Legislative History, supra

at 216-17, 663, 1481-82. Further, Glenn indicates that: “One of the

prevalent feelings of the Congress during consideration of the en-

forcement aspects of the 1972 Amendments was that the enforce-

ment mechanism of the previous law [Rivers and Harbers Act of

1899, commonly known as the Refuse Act} did not allow (or re-

quire) prompt enforcement action.” Glenn, supra note 2, at 866

n. 140. Thus, it is evident that prerequisites to the pursuit of

criminal sanctions under the Act would be inconsistent with Con-

gress’ desire for a stronger enforcement mechanism.

a

26a

mulgated any effluent standards applicable to the compost

manufacturing business. The Frezzos argue that before a

violation of §1311(a) can occur, the defendants must be

shown to have not complied with existing effluent limita-

tions under the Act. The district court disagreed, finding

no such requirement. 461 F. Supp. at 268-69. We agree

with the district court.

The core provision of the Act is found in §1311(a)

which reads:

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1842, and 1344 of this title, the

discharge of any pollutants by any person shall be un-

lawful.

Section 1311(b) then sets out a timetable for the promul-

gation of effluent limitations for point sources and section

1312 provides for the establishment of water quality re-

lated effluent limitations. The Frezzos contend that they

cannot have violated the Act because the EPA has not yet

promulgated effluent limitations which they can be held

to have violated. Appellants rely primarily on United

States v. GAF Corporation, 389 F. Supp. 1379 (S.D. Texas

1975) as support for their position. That case did hold

that before an abatement order may be issued pursuant

to §1319(a)(3) of the Act, the defendants must be shown

to have violated an applicable effluent limitation. 389 F.

Supp. at 1385-86. The Government argues, however, that

the decision is incorrect and cites American Frozen Food

Institute v. Tiain, 176 U.S. App. D.C. 105, 113, 539 F.2d

107, 115 (1976) for the proposition that:

By 1972 Congress determined upon wholly a new

approach. The basic concept of the Act [section 1311

(a)] we construe in this case is an ultimate flat pro-

hibition upon all discharges of pollutants. . . .

52 eb atteimis Qseush

27a

Indeed, the court specifically noted that “[t]his prohibition

which is central to the entire Act is statutory and requires

no promulgation.” Id., 176 U.S. App. D.C. at 126, 539

F.2d at 128.

The Sixth Circuit has enforced criminal penalties for

violation of section 1311(a). In United States v. Hamel,

551 F.2d 107, 109 (6th Cir. 1977), the court stated: “The

negligent or wilful violation of §1311(a), however, without

justification subjects one to the criminal sanctions [sic]

§1319(c)(1).” The Government contends in the instant

case that the lack of effluent limitations is no defense to a

violation of section 1311 (a). In United States v. Hamel,

limitations have been established for a particular business,

the proper procedure is for the business to apply for a

permit to discharge pollutants under 33 U.S.C. §1342(a),

which allows the Administrator to establish interim operat-

ing conditions pending approval.® The district court in

GAF explicitly rejected this argument as placing too harsh

a burden on the defendant because it viewed the Act as

not allowing any discharge pending approval of the permit.

389 F. Supp. at 1386. The Government contends in the

present case, however, that the absence of effluent limita-

tions should not be allowed to nullify the flat prohibition

on discharges under §1311(a). We agree.

The GAF court appropriately recognized that the legis-

lative history of the Act was “curiously incomplete” on the

6. 33 U.S.C. §1342(a)(1) provides in relevant part:

[T]he Administrator may, after opportunity for public hearing,

issue a permit for the discharge of any pollutant, notwith-

standing section 1311(a) of this title, upon condition that

such discharge will meet all applicable requirements . . . , or

prior to the taking of necessary implementing actions relating

to all such requirements, such conditions as the Administrator

determines are necessary to carry out the provisions of this

chapter.

enone on Mere ne

28a

issue in question. Id. We therefore must interpret the

statute in a fashion that best effectuates the policies of the

Act. The basic policy of the Act is to halt uncontrolled dis-

charges of pollutants into the waters of the United States.

33 U.S.C. §1251. In fact, the Act sets forth “the national

goal that the discharge of [all] pollutants into the navigable

waters be eliminated by 1985.” Id. §1251(a)(1); United

States v. Hamel, supra at 109. We see nothing imper-

missible with allowing the Government to enforce the Act

by invoking §1311(a), even if no effluent limitations have

been promulgated for the particular business charged with

polluting. Without this flexibility, numerous industries

not yet considered as serious threats to the environment

may escape administrative, civil, or criminal sanctions

merely because the EPA has not established effluent

limitations. Thus, dangerous pollutants could be con-.

tinually injected into the water solely because the ad-

ministrative process has not yet had the opportunity to

fix specific effluent limitations. Such a result would be

inconsistent with the policy of the Act.

We do not believe, as did the court in GAF, that the

permit procedure urged by the Government is unduly

burdensome on business. If no effluent limitations have

yet been applied to an industry, a potential transgressor

should apply for a permit to discharge pollutants under

section 1342(a). The Administrator may then set up

operating conditions until permanent effluent limitations

are promulgated by EPA. The pendency of a permit ap-

plication, in appropriate cases, should shield the applicant

from liability for discharge in the absence of a permit.

33 U.S.C. §1342(k). See Stream Pollution Con. Bd. of

Ind. v. U.S. Steel Corp., 512 F.2d 1036, 1041 n. 12 (7th

Cir. 1975). EPA cannot be expected to have anticipated

every form of water pollution through the establishment

29a

of effluent limitations. The permit procedure, coupled

with broad enforcement under §1311(a) may, in fact,

allow EPA to discover new sources of pollution for which

permanent effluent standards are appropriate.

[3] In the present case, it is undisputed that there was

no pending permit to discharge pollutants; nor had Frezzo

Brothers, Inc., ever applied for one. This case, therefore,

appears to be particularly compelling for broad enforce-

ment under sections 1311(a), 1319(c)(1). The Frezzos,

under their interpretation of the statute, could conceivably

have continued polluting until EPA promulgated effluent

limitations for the compost operation. The Government's

intervention by way of criminal indictments brought to a

halt potentially serious damage to the stream in question,

and has no doubt alerted EPA to pollution problems posed

by compost production. We therefore hold that the pro-

mulgation of effluent limitation standards is not a pre-

requisite to the maintenance of a criminal proceeding based

on violation of section 1311(a) of the Act.

IV.

[4] The Frezzos next contend that there was insufficient

evidence to convict them of the charges in the indictment.

They virtually concede that the Government presented

sufficient evidence to sustain Count Five. However, de-

fendants charge that the Government, inter alia,’ had failed

to prove willful or negligent discharges of pollutants. We

disagree because we are persuaded that substantial evi-

7. The defendants also argued that the Government failed to

produce sufficient evidence to identify them as the parties respon-

sible for the discharges. We believe the district court correctly

concluded, 461 F. Supp. at 270-71, that sufficient evidence of identi-

fication was produced at trial.

30a

dence in the record supports all six counts of the indict-

ment.*®

The Government contended at trial that the discharges

giving rise to Counts One through Four of the indictment

were willful. To establish this claim, the Government

relied on the samples collected on those four occasions,

the absence of rain on the dates in question, and the elimi-

nation of other possible causes for the pollution. The

Frezzos maintain that the Government on this evidence

failed to establish a willful act. We disagree. The jury

was entitled to infer from the totality of the circumstances

surrounding the discharges that a willful act precipitated

them. The Government did not have to present evidence

of someone turning on a valve or diverting wastes in order

to establish a willful violation of the Act.°

The Government’s theory on Counts Five and Six was

that the discharges were negligently caused by the in-

adequate capacity of the holding tank. Count Five was

amply supported by eyewitness testimony, samples of the

pollutants, evidence of rainfall and expert hydrologic evi-

dence of the holding tank’s capacity. Count Six was simi-

larly supported by evidence of rainfall, samples, expert

8. Judge Broderick stated in denying the defendants’ motions

for acquittal and a new trial:

The Government’s case was strong, and there can be no

doubt that the evidence was sufficient to support the jury’s

verdict as to each of the defendants and as to each of the six

counts of the indictment.

461 F. Supp. at 270.

9. Judge Broderick noted:

Testimony was presented by several witnesses that on man

occasions, commencing as far back as 1970, the defendants in

this case had been investigated, visited and confronted by a

number of state and county employees concerning the fact

that the stream in question was being polluted by runoff from

the compost operation conducted by the defendants on the

Frezzo property.

461 F. Supp. at 270.

3la

testimony and photographs of the holding tank three days

before the incident, showing it to be near capacity. The

jury could properly have concluded that the water pollu-

tion abatement facilities were negligently maintained by

the Frezzos and were insufficient to prevent discharges of

the wastes. We therefore conclude that there was sufficient

evidence to sustain the verdict on all six counts.

V.

Defense counsel requested at trial that a special verdict

be submitted to the jury in order to determine, if a guilty

verdict were returned, whether the jury found the defend-

ants guilty of a willful or a negligent violation under each

count. The trial judge denied the request. The Frezzos

maintain that this denial constitutes reversible error. We

cannot agree.

[5] We start with the proposition that special verdicts

are generally disfavored in criminal cases. United States

v. Munz, 542 F.2d 1382, 1389 (10th Cir. 1976), cert.

denied, 429 U.S. 1704, 97 S. Ct. 1133, 51 L.Ed.2d (1977);

United States v. Jackson, 542 F.2d 403, 412 (7th Cir.

1976). There is the belief that in the long run special

verdicts are not favorable to defendants because “[b]y a

progression of questions each of which seems to require

an answer unfavorable to the defendant, a reluctant juror

may be led to vote for a conviction which, in the large, he

would have resisted.” United States v. Spock, 416 F.2d

165, 182 (2d Cir. 1969). See United States v. McCracken,

488 F.2d 406, 419 (5th Cir. 1974).

[6] The defendants maintain nevertheless, that it was

important for the court to know whether the discharges

were found to be willful or negligent under each Count, in

order to assess the sufficiency of the evidence and for

sentencing purposes. The Government, however, pro-

32a

ceeded on a theory of willful discharge under Counts One

through Four and on a theory of negligent discharge under

Counts Five and Six. We have already noted our agree-

ment with the district court’s conclusion that the evidence

was sufficient to sustain each of the counts on those

theories. Hence, although a special verdict might have

been illuminating, there was no compelling necessity for

one in this case. Further, there is no variance in the

statutory penalty between willful and negligent violations.

It therefore would have been within the judge’s discretion

to sentence the defendants to the statutory maximum

had the jury returned a special verdict finding the de-

fendants guilty of negligent violations only. Indeed, it

appears that the judge might have done so since he

sentenced the defendants more severely under the negli-

gent counts.” We therefore conclude that the trial judge

did not abuse his discretion in declining to submit a special

verdict in the instant case.

Appellants raise other contentions on appeal all of which

are without merit.'" We perceive no prejudice to the de-

10. The jail sentences were imposed only for Count Five and

the defendants were more heavily fined under Counts Five and

Six.

11. Defendants contend that the trial judge improperly instructed

the jury that they could be found guilty as individuals when the

indictment charged them with acting as corporate officers. The

Government argued the case on the “responsible corporate officer

doctrine” recognized by the United States Supreme Court in United

States v. Park, 421 U.S. 658, 95 S. Ct. 1903, 44 L.Ed.2d 489 (1974)

and United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88

L.Ed. 48 (1943). We have examined the judge’s charge and we

perceive no error in the instruction to the jury on this theory.

Defendants also contend that the district court erred in failing to

suppress the samples from the channel box because they were

taken without a search warrant. However, the channel box lay on

property not owned by the Frezzos. The district court held that

because defendants had no legitimate proprietary or possessory

dota <Salalbidiaats

33a

fendants meriting reversal of the verdict and the grant of

a new trial. Accordingly, the judgment of the district

court will be affirmed.

interest in the neighboring property and because possession was

not an element of the offense charged, they lacked standing under

the fourth amendment to contest the seizure of the ero The

United States Supreme Court, however, in Rakas v. Illinois, 439

U.S. 128, 138-139, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978), dropped

the issue of standing from consideration in fourth amendment cases

in favor of an inquiry into the extent of an individual defendant's

rights under the fourth amendment. Nevertheless, it is still clear

under Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22

L.Ed.2d 176 (1969) that fourth amendment rights are personal

and cannot be vicariously asserted. We agree that defendants had

no proprietary or possessory interest in the searched premises nor

was possession an element of the offense. Hence, there are no

personal rights that may be substantively asserted under the fourth

amendment. Rakas, supra, 439 U.S. at 140-141, 99 S. Ct. 421.

34a

APPENDIX C

ORDER DENYING REHEARING

UNITED STATES COURT OF APPEALS

For THe Tuirp Circulr

Nos. 78-2670/1/2/3/4/5

UNITED STATES OF AMERICA,

vs.

FREZZO BROTHERS, INC.

Guido Frezzo, James Frezzo,

and Frezzo Brothers, Inc.,

Appellants.

SUR PETITION FOR REHEARING

Present: ADAMS and ROSENN, Circuit Judges, and

LACEY, District Judge®

The petition for rehearing filed by

appellants 3

in the above entitled case having been submitted to the

judges who participated in the decision of this court and

no judge who concurred in the decision having asked for

rehearing, the petition for rehearing is denied.

By the Court,

/s/ Max Rosenn

MAX ROSENN

Judge

Dated: October 22, 1979

* Sitting by designation.