Opposition — Frezzo Bros. v. United States

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CED Re om,

EF Buners | Court, U & ’ ;

EILED |

No. 79-808 | FER 2 1980

Le

In the Supreme Court of the Ynited Sita

OCTOBER TERM, 1979

FREZZO Brotuers, INC., GuIpDO FREzzO0 AND

JAMES FREZZO, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

WADE H. McCRreE, Jr.

Solicitor General

JAMES W. MoorMAN

Assistant Attorney General

EDWARD J. SHAWAKER

JAMES J. TOMKOVICZ

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

EES at UES a RA ee I

a. |

i Fe hacchccemianiece 2

a icles (os cacsanecspcser 2

I cd Cae 4

SOR SRORERAE SOUPS Sate Seat, COREE OC ce 6

Conclusion Rilo ONS vee Wt? Site ORR RETR De beieiiaines 10

CITATIONS

Cases:

E.l. du Ponte de Nemours & Co. v. Train.

Wee BEE CURTIN bila ccssisiciice heaps y

Phelps v. Dodge, 391 F. Supp II81 ooo... 8

Sierra Club v. Train, 557

Be benaads 7

United States v. Hamel, 551 F. 2d 107 ............. 8

United States v. Hudson Farms Ince..

Ps CI ce oe x

Statutes:

Clean Water Act of 1977, Pub. L. No.

re a 2

Federal Water Pollution Control Act

Amendments of 1972, 33 U.S.C.

1251 et seq.:

secties 101, 33: U.S. 1251 ............... 2.9

a we Ma EAE ae | | neo 2

Page

Statutes—(Continued):

Section 301(a), 33

Reap MO fg Se 4, 8, 9

Section 301(b), 33 U.S.C. cor 5. 9

Section. 302, 33 .U:S:C. 1312... 2

. Section 306, 33 U.S.C. 1316.0... 2

Section 307, 33 U.S.C. 1317.00.00, 2

Section 309, 33 U.S.C. 1319.00 7

Section 309(a)(3), 33 U.S.C.

i GON ERS ACORN IR EE 2. 6&7

Section 309(b), 33

Wey SO i 4. 6

Section 309%(c), 33 ;

ig Sea Re: 4. 6, 7

Section 309(c)(1), 33

Nes RIMMED cocndeisciiess recs secce ce »

Section 318, 33 U.S.C. 1328 ..............00. 4

Section 402, 33 U.S.C. 1342 ... 2 aoe

Section 402(a), 33

AI I ci eh a Se ee Y

Section 402(a)(1), 33

SPRcy BRNO isch ceasistesiccaueh ese wy)

Section 404, 33 U.S.C. 1344 2000 2

ili

Page

Miscellaneous:

eS ESR an 5 0 10

H.R. Rep. No. 92-911, 92d Cong..

Se 9

S. Rep. No. 92-414, 92 Cong., Ist

ESSN Sia a a 9

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 79-808

FREZZO BROTHERS, INC., GUIDO FREZZO AND

JAMES FREZZO, PETITIONERS

Vz.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 17a-

33a) is reported at 602 F. 2d 1123. The opinion of the

district court (Pet. App. la-l6a) is reported at 461 F.

Supp. 266.

JURISDICTION

The judgment of the court of appeals was entered on

July 13, 1979. A petition for rehearing (Pet. App. 34a)

was denied on October 22, 1979. The petition for a writ

of: certiorari was filed on November 21, 1979. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

QUESTION PRESENTED

J Whether the Administrator of the Environmental

Protection Agency must issue a compliance order or

bring a civil enforcement action prior to the institution

of criminal proceedings under Section 309(c)(1) of the

Water Act of 1972, 33 U.S.C. 1319(c)(1).

2. Whether a criminal prosecution under Section

309(c)(1) can be initiated if the Administrator has not

issued effluent limitations under Section 30] of the

Water Act, 33 U.S.C. 1311.

STATUTE INVOLVED

The pertinent provisions of the Federal Water

Pollution Control Act Amendments of 1972.! 33 U.S.C.

1251 et seq., are as follows:

Section 1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law.

Except as in compliance with this section

and sections 1312, 1316, 1317, 1328. 1342. and

1344 of this title, the discharge of any pol-

lutant by any person shall be unlawful.

Section 1319. Enforcement

(a) State enforcement; compliance orders

(1) * * *

(3 *es

(3) Whenever on the basis of any information

available to him the Administrator finds that any

person is in violation of section 1311, 1312. 1316.

1317, or 1318 of this title, or is in violation of any

permit condition or limitation implementing any

‘Hereinafter the “Water Act.” The Water Act was further

a by the Clean Water Act of 1977, Pub. L. No. 95-217, 9]

Stat. 1566.

of such sections in a permit issued under section

1342 of this title by him or 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 section.

(b) Civil actions

The Administrator is authorized to commence a

civil action for appropriate relief, including a

permanent or temporary injunction, for any

violation for which he is authorized to issue a

compliance order under subsection (a) of this

section. Any action under 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 business, and such court

shall have jurisdiction to restrain such violation

and to require compliance. Notice of the com-

mencement of such action shall be given im-

mediately to the appropriate State.

(c) Criminal penalties

(1) Any person who willfully or negligently

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

of this title, or any permit condition or limita-

tion implementing any of such sections in a

permit issued under Section 1342 of this title by

the Administrator or by a State, shall be punish-

ed 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 violation 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.

Section 1342. National pollutant discharge elim-

ination system .

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344

of this title, the Administrator may, after

opportunity for public hearing issue a permit for

the discharge of any pollutant, or combination of

pollutants, notwithstanding section 1311(a) of this

title, upon condition that such discharge will meet

either all applicable requirements under sections

1311, 1312, 1316, 1317, 1318, and 1343 of this

title, or prior to the taking of necessary implemen-

ting actions relating to all such requirements, such

conditions as the Administrator determines are

necessary to carry out the provisions of this

chapter.

STATEMENT

In a six-count indictment, petitioners James L. Frezzo.

Guido Frezzo and Frezzo Brothers, Inc.. were charged

with willfully and negligently discharging pollutants—

waste water from mushroom compost manufacturing

operations—into the East Branch of the White Clay

Creek, a navigable water of the United States. without

having obtained a discharge permit, in violation of

Sections 301(a) and 309(c) of the Water Act. 33 U.S.C.

1311(a) and 1319%(c). A jury convicted petitioners on all

six counts. The trial court imposed thirty day jail

sentences and a total fine of $50,000 upon the individual

defendants and a $50,000 fine upon the corporate

defendant. In affirming the convictions the court of

appeals held: (1) “that the Administrator of the EPA is

not required to pursue administrative or civil remedies.

or give notice, before invoking criminal sanctions” (Pet.

App. 25a); (2) “that the promulgation of effluent

limitation standards is not a_ prerequisite to the

maintenance of a criminal proceeding” (id. at 29a); (3)

“that there was sufficient evidence to sustain the verdict

on all six counts” (id. at 3la); and (4) “that the trial

judge did not abuse his discretion in declining to submit

a special verdict” (id. at 32a).

The operative facts may’ be summarized as foliows.

Petitioners are engaged in mushroom compost manufac-

turing and mushroom farming (id. at 7a, 20a). The

convictions at issue stem from the former Operation in

which petitioners produce the medium used for growing

mushrooms. The process involves periodically adding

water to a mixture of hay and horse manure piled on a

concrete wharf in the open air so that it will ferment

(Pet. 6; Pet. App. 7a, 21a). Water is introduced to the

mixture both by rain and snow and by a_ water

circulation system (Pet. 6). Part of that system is a

concrete holding tank that catches runoff from the

composting wharf, and recycles it to the wharf (ibid.:

Pet. App. 7a, 21a). Nearby is a wholly separate storm

water runoff system leading from petitioners’ farm to a

channel box on adjoining property, and from there to an

unnamed tributary of the East Branch of White Clay

Creek (Pet. App. 7a, 21a). When petitioners’ composting

holding tank overflowed, polluted water would find its

way to the separate storm water system and from there

into the channel box and ultimately the stream (id. at

22a; see also id. at 8a).

On four occasions during 1977-and two during 1978,

pollutant ‘discharges *-<eable to the Frezzo compost

holding tank were discovered ir, the White Clay Creek.

These six discharges formed the basis for the indictment

(id. at 2la-22a).

ARGUMENT

As framed by the petition, the question presented

blends two discrete and settled issues: (1) whether a

compliance order or civil action must precede criminal

enforcement action under the Water Act, and (2)

whether effluent limitations must be promulgated prior

to commencement of criminal proceedings. The answer

in each case is clear: petitioners point to no conflict

among the circuits on either, and neither presents an

important issue of federal law meriting resolution by this

Court.

|. Petitioners’ submit (Pet. 7-9) that before a criminal

action under 33 U.S.C. 1319(c) can be brought, the EPA

Administrator must issue a compliance order or bring a

civil action under 33 U.S.C. 1319(a)(3) and 1319(b). The

court of appeals correctly rejected this claim for which

petitioners marshal no legal support.

The language of the statute does not justify the

conclusion that criminal liability can arise only after

warning by one of the noncriminal methods at the EPA

Administrator’s disposal. As the court of appeals noted,

“[t]here is nothing in the text of §1319(c) that compels

the conclusion that prior written notice, other ad-

ministrative or civil remedies are prerequisite to criminal

Proceedings under [Section I319}" (Pet. App. 24a).

Although subsection (a)(3) provides that “[w]henever

***the Administrator finds that any person is in

violation of section 1311 * * * he shall issue an order

requiring such person to comply with such section

* * * or he shall bring a civil action in accordance with

subsection (b) * * *,” these steps are not mandatory. See

Sierra Club v. Train, 557 F. 2d 485, 490-491 (Sth Cir.

1977). Moreover, whether they are mandatory or

discretionary, nothing in the language or structure of

Section 1319, or the Water Act as a whole, conditions the

Administrator's authority to commence criminal

proceedings under subsection (c) on his having taken the

steps outlined in subsection (a) (3). Section 1319(c)(1)

constitutes an independent enforcement mechanism.

“Any person who wilfully or negligently violates section

1311 * ** shall be punished by a fine * * * or by

imprisonment * * * or by both” (ihid.). The language

could scarcely be clearer.

The legislative history reinforces this conclusion. As

the court of appeals observed (Pet. App. 23a-24a)

(footnote omitted):

[T]he final House Committee Report * * * clearly

indicate[s] that written notice of the violation,

administrative, civil or criminal remedies under the

Act were to be alternative remedies. The key portion

of the House Committee Report provides:

“Whenever on the basis of any information

available to him the Administrator finds that anyone

is in violation 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 [391 F. Supp. 1181 (D. Ariz. 1975)] 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 previsions of the Act. * * * The

Senate acceded to the House in not making civil

enforcement mandatory upon the Administrator

under section 1319. Legislative History, supra at

174. Hence, we can only conclude that whatever

support existed for the position urged by the

Frezzos did not prevail in the enactment of the final

Bill. ;

2. Nor is there any merit in petitioners’ contention

(Pet. 7-11) that the Administrator cannot initiate

criminal proceedings under the Water Act unless and

until applicable effluent limitations have been

promulgated. Again, the text of the statute is clear.

Section 1311(a)—characterized by the court of appeals as

the “core provision of the Act” (Pet. App. 26a) and by

the Sixth Circuit as the “broad primary declaration of

the Act” (United States v. Hamel, 551 F. 2d 107, 109

(1977))—states: “Except as in compliance with this section

and [other specified] sections * * * of this title, the

discharge of any pollutant by any person shall be

unlawful.” Thus, the basic concept underlying the Water

Act is a flat ban on pollutants, subject to limited

exceptions.

arena isetnaboep

Section 1311(b) provides for the promulgation of

effluent limitations which take account of the limits of

pollution control technology while assuring progress

toward “the national goal of eliminating the discharge of

all pollutants.” Compliance with applicable limitations is

one of the exceptions to the overail ban imposed by

Section 1311(a). However, it does not follow that the

absence of applicable limitations constitutes an exception

as well. Rather, as the court of appeals concluded, “{iJf

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” (Pet. App. 28a).2 Absent a permit, if no

limitations are in effect the primary ban. of Section

1311(a) remains in force. Otherwise Section 1342(a),

insofar as it expressly applies to the issuance of permits

“prior to the taking of necessary implementing actions

relating to” effluent limitations, would be rendered

superfluous.

More importantly, the rule contended for by

petitioners is incompatible with the purposes of the

Water Act, “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters,”

and to eliminate “the discharge of pollutants into the

navigable waters by 1985” (33 U.S.C. 1251). As the court

of appeals observed, the “EPA cannot be expected to

"It is clear that Congress, recognizing that effluent limitations

would not be promulgated immediately, intended that in the interim

persons desiring to discharge pollutants first obtain permits under

Section 1342. H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 100, 126

(1972); S. Rep. No. 92-414, 92d Cong., Ist Sess. 42 (1971). See also

E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 133 n.24

(1977).

10

have anticipated every form of water pollution through

the establishment of effluent limitations” (Pet. App. 28a-

29a). To prohibit enforcement of the Act until such

limitations have been promulgated would mean that

“dangerous pollutants could be continually injected into

the water solely because the administrative process has

not yet had the opportunity to fix specific effluent

limitations. Such a result would be inconsistent with the

policy of the Act” (id. at 28a).3

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapvE H. McCrer, Jr.

Solicitor General

JAMES W. MoorMANn

Assistant Attorney General

EDWARD J. SHAWAKER

JAMES J. TOMKOVICZ

Attorneys

FEBRUARY 1980

*Petitioners suggest in passing (Pet. 10-1 1) that the decision below

is infirm because the court of appeals did not consider whether

their activities fall within an agricultural exception to Section 1342's

permit requirements. See 40 C.F.R. 125.4. This contention was first

raised in petitioners’ out-of-time petition for rehearing which the

court of appeals denied without opinion (Pet. App. 34a).

Accordingly, the issue is not properly before this Court.