Petition — Distler v. United States

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Office-Supreme Court, U.S.

ie ie A ae

, 80-1986 MAY 26 1981

ALEXANDER L. STEVAS,

“eran il

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DONALD E. DISTLER - - - - - Petitioner

versus

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK E. HADDAD, JR.

529 Kentucky Home Life Building

Louisville. Kentucky 40202

(502) 583-4881

Counsel of Record for Petitioner

BURTON MILWARD, JR.

529 Kentucky Home Life Building

Louisville. Kentucky 40202

(502) 583-4881

Counsel for Petitioner

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

QUESTIONS PRESENTED

1. Did the court of appeals err in holding that there

was sufficient evidence to warrant a finding of guilt beyond

a reasonable doubt in this nationally important case which

is the first criminal conviction by a jury under the Federal

Water Pollution Control Act, 33 U.S.C. § 1319?

2. Did the court of appeals err by failing to address

the statistical probability evidence issue in affirming peti-

tioner’s conviction where 1) another circuit has reasoned

and held that statistical probability evidence unjustly sug-

gests, by quantification, that guilt has been established

beyond a reasonable doubt, 2) such evidence had the ap-

pearance of certainty as to ultimate facts and unjustly

usurped the function of the jury in this case, and 3) the

prosecution intentionally employed such evidence at trial

and in closing argument to unfairly influence the jury’s

deliberations, so that review should be granted to resolve

a conflict of circuits and so that the question of admis-

sibility and unjust impact of statistical probability evidence

can be settled by this Court?

3. Was petitioner’s Sixth Amendment right to an open

and public trial abridged when prior grand jury testimony

of eyewitnesses, crucial to the jury’s verdict of guilty, was

admitted as substantive evidence pursuant to Federal Rule

of Evidence 801(d) (1) (A), the injustice being the substan-

tive use of inculpatory evidence developed in a secret pro-

ceeding?

4. Did the court of appeals err by failing to address

the introduction-of-prior-inconsistent-statements issue in af-

firming petitioner’s conviction where 1) prior inconsistent

statements were not disclosed at the time the witnesses

testified contrary to 18 U.S.C. §3500, 2) the statements

were introduced under Federal Rule of Evidence 613(b)

contrary to that rule’s foundation requirement, and 3) the

statements were admitted in flagrant violation of previous

rulings of this Court and other circuits, so that review

should be granted to exercise the supervisory power of this

Court?

5. Did the court of appeals err by failing to address

the statutory vagueness issue in affirming petitioner’s con-

viction where 1) the language of the Federal Water Pollu-

tion Control Act enforcement statute (33 U.S.C. § 1319)

is so vague that a person of reasonable intelligence could

not foresee imposition of a criminal penalty prior to the

issuance of a compliance order or the inception of a civil

action, 2) this Court has repeatedly held that one is not to

be subjected to a penalty unless the words of the statute

plainly impose it, and 3) imposition of the criminal penalty

in this case violates petitioner’s Sixth and Fifth Amend-

ment rights to notice and due process, so that review should

be granted to settle the question of vagueness in this

statute?

TABLE OF CONTENTS

PAGE

ee Or IO chy 5 aie Su ONE ea cee nbedes 62.00% iv -v

Opinion Below .....cccecccccsccesvescccens avoccnt 1

PEE ck eb. ck oibos ssc edkuesandeereisceneviaes 1- 2

Constitutional and Statutory Provisions ............ 2 3

Statement of the Oase ..........ccccccreeeeceeeees 3- 4

PE eck eck ca¥s ube'c Sb g0du ceed ss bbecvaeceacs 5-21

SU Unde w Wea Gnandeneeelees Skea chant as re |

SEE Viedcincar stave hast ws doves bemebea Ri sreue 23-69

Appendix A (Opinion of Court of Appeals) ....... 23-42

Appendix B (Order Denying Petition for Rehear-

BED chuats sh ce Winecetonkd Cea wean es daepcenee 43

Appendix C (Order Staying Mandate) ...,....... 44

Appendix D (Text of Statutory Provisions) ....,,45-69

TABLE OF AUTHORITIES

Constitutional Provisions: PAGE

United States Constitution, Fifth Amendment .... 2

United States Constitution, Sixth Amendment .... 2,14

Statutes:

Be ee: GHEE b6NGN.nien Kobcen MhaducUNaeaeceesss 2,14

EN cbc dedvncecdewetakVeurberasdes 2,3

Se MAMET Aes cncevedtncdvstceset cueet sabi 2,3

Se Sea MRED 6 hbSGs ch Sasnecnesaacene ce 2, 3, 18, 19, 2

Rules:

Federal Rule of Evidence 613(b) ........ 2-3, 15, 16, 17

Federal Rule of Evidence 801(d)(1)(A) .......... 3, 10

Cases:

Campbell v. United States, 365 U.S. 85 (1961) ..... 14

Conrad v. Griffey, 16 Howard 46 (1853) .......... 16

Gannett Co., Inc. v. DePasquale, 448 U.S. 368

ROUGE: v0 dd setende ees Vads bces bebevenesede nes 12-13

Goldberg v. United States, 425 U.S. 94 (1976) ..... 14, 15

Hilyer v. Howat Concrete Co., Inc., 578 F. 2d 422

CER ets BRUT <a Wo NecdbiSbebnsctlbsvade se cces 16

Jackson v. Virginia, 443 U. S. 307 (1979)......... ae |

Mourning v. Family Publications Service, Inc., 411

is GO EEE Ud4 ecu cee 26 0kbe chido. Wa ew ae

In Re Oliver, 333 U. S. 257 (1948) ............000. 11, 14

Steamboat Charles Morgan v. Kouns, 115 U.S. 69

CRE Wn aa kadies Sencdcind cRakgaeaopens set ches 16-17

Richmond Newspapers, Inc. v. Virginia, __. U.S.

——., 65 L. Ed. 2d 973 (July 2, 1980) .......... 12

United States v. Campos-Serrano, 404 U.S. 293

GAC on GAC iik Konnacbassveee sink opsicede 18

United States v. Frezzo Brothers, Inc., 602 F. 2d

1123 (3rd Cir. 1979), cert. den. 444 U.S. 1074

ERPEE dae ne ob es vesscccneeVecedhesebevotevie 20

PAGE

United States v. Massey, 594 F. 2d 676 (8th Cir.

BONER, cu kwidovecsednee dues pendene sews mad ben 8

United States v. Rice, 550 I’. 2d 1364 (5th Cir. 1977),

eort, Gem. 454 VU. B.. G66. cc ceveccctvccdiccs ucts 16

Miscellaneous:

Be PRN BIOs on cc Kd vccedasacpecvswegensde 9

Senate Committee Report, 1974 U.S. Code Cong. &

Admin. News, p. 7051, 7063 n. 1 ....... eee eee 7

4 Weinstein’s Evidence 801-89 ..........ceeeeeeee 7

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

DonaLp E. DistLer - - - - Petitioner

UnttTep States OF AMERICA - - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner respectfully prays that a Writ of Certio-

rari issue to review the opinion of the court of appeals

decided and filed on February 12, 1981.

OPINION BELOW

The opinion of the court of appeals decided and

filed on February 12, 1981 (Appendix A) is reported

at ___. F, 2d ___ (6th Cir. 1981). A petition for re-

hearing was filed en banc. The order of the court of

appeals denying the petition for hearing was entered

on March 31, 1981 (Appendix B).

JURISDICTION

The opinion of the court of appeals (Appendix

A) was decided and filed on Feruary 12, 1981; and a

timely Petition for Rehearing was denied by order of

the court of appeals for the Sixth Circuit (Appendix

B) on March 31, 1981. This Court’s jurisdiction is in-

voked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitutional Provisions:

The Fifth Amendment to the United States Con-

stitution provides in pertinent part as follows:

No person shall be . . . deprived of life, liberty,

or property, without due process of Jaw. .. .

The Sixth Amendment to the United States Con-

stitution provides in pertinent parts as follows:

In all criminal prosecutions the accused shall

enjoy the right toa .. . public trial... .

In all criminal prosecutions the accused shall

enjoy the right . . . to be informed of the nature

and cause of the accusation. .. .

Statutory Provisions:

United States Code, Title 18

Section 3500, Demands for Production of State-

ments and Reports of Witnesses. [Pertinent text

set forth in Appendix, infra.]

United States Code, Title 33

Sections 1311, 1317, and 1319 of the Federal Water

Pollution Control Act. [Pertinent text set forth in

Appendix, infra.]

Rules:

Federal Rule of Evidence 613(b) provides as fol-

lows;

(b) Extrinsic evidence of prior inconsistent

statement of witness. Extrinsic evidence of a

prior inconsistent statement by a witness is not

admissible unless the witness is afforded an oppor-

tunity to explain or deny the same and the oppo-

site party is afforded an opportunity to interro-

gate him thereon, or the interests of justice other-

wise require. This provision does not apply to

admissions of a party-opponent as defined in rule

801(d) (2).

Federal Rule of Evidence 801(d)(1)(A) provides

as follows:

(d) A Statement is not hearsay if (1) the

declarant testifies at the trial or heering and is

subject to cross-examination concerning the state-

ment, and the statement is (A) inconsistent with

his testimony, and was given under oath subject

to the penalty of perjury at trial, hearing, or

other proceeding, or in a deposition.

STATEMENT OF THE CASE

Petitioner was convicted after a jury trial in the

Western District of Kentucky of two violations of the

Federal Water Pollution Control Act (33 U.S.C. § 1251

et seq.) Criminal penalties were imposed pursuant to

Section 1319 for Petitioner’s alleged failure to follow

guidelines for the disposal of pollutants established

under Sections 1311 and 1317.

Petitioner was convicted of discharging toxic waste

pollutants called PCL bottoms into the Ohio River and

into the Ohio River through the sewers of the Louis-

ville and Jefferson County Metropolitan Sewer Dis-

trict. Co-defendants were acquitted.

Petitioner operated Kentucky Liquid Recycling

Company, Inc., in New Albany, Indiana, whose business

was the storage of industrial wastes. K.L.R. contracted

with Chem-Dyne Corporation of Hamilton, Ohio, to

store PCL bottoms which Chem-Dyne transported from

Velsicol Chemical Corporation in Memphis, Tennessee

to K.L.R. in New Albany. In the course of operating

his business, petitioner on several occasions visited a

Lewis Avenue demolition site in Louisville for the pur-

pose of purchasing salvage materials from the demoli-

tion company.

When portions of the Louisville sewers became con-

taminated in March, 1977, investigators began to con-

clude petitioner’s involvement in the contamination be-

cause 1) he was in the business of storing PCL bottoms,

and 2) he purchased salvage materials at a Lewis Ave-

nue demolition location adjacent to the suspected site

where contaminants were introduced into the sewers.

Investigation blossomed into indictment, and trial re-

sulted in conviction. On appeal, petitioner raised im-

portant issues which were not addressed by the court

of appeals, three of which are questioned here. On ap-

peal, the court of appeals did consider the sufficiency

of evidence issue questioned here but affirmed, it is

respectfully submitted, on the basis of misconceived

facts.

ARGUMENT

1. Did the court of appeals err in holding that there was

sufficient evidence to warrant a finding of guilt beyond

a reasonable doubt in this nationally important case

which is the first criminal conviction by a jury under the

Federal Water Pollution Control Act, 33 U.S.C. § 1319?

This Court has held, in Jackson v. Virginia, 443

U. 8. 307 (1979), that the standard for review of in-

Sufficient evidence is

whether, after viewing the evidence in the light

most favorable to the prosecution, any rational

trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt.

Id., at 319.

In the present case, it is respectfully urged that

‘‘no rational trier of fact could have found proof of

guilt beyond a reasonable doubt,’’ id., p. 324, so that

review should be granted to reverse petitioner’s con-

viction.

All proof of petitioner’s involvement in this case

was circumstantial. The essential accusation at trial

was that petitioner had discharged toxic wastes, PCL

bottoms, into the sewers of Louisville, on or about

February or March, 1977, at a site known as Lewis

Avenue, between 26th, 28th, Howard and Broadway

Streets. Circumstantial evidence tending to link pe-

titioner to the alleged offense included the facts that

he admittedly was in the business of storing such toxic

wastes at his company Kentucky Liquid Recycling in

New Albany, Indiana [K.L.R.], and that he admittedly

had been in the vicinity of the Lewis Avenue discharge

site in the ordinary course of business purchasing

salvage materials from a demolition operation at a

Lewis Avenue location.

In addition to these uncontested circumstances,

scientific expert ‘‘oil matching’’ testimony was intro-

duced tending to connect materials stored in petitioner’s

tanks at K.L.R. to materials recovered from the Louis-

ville sewers. It is submitted that expert testimony

tending to involve the company [K.L.R] to the offense

does not rise to the level of connecting petitioner to

the offense. This observation is highlighted by the

jury’s acquittal of co-defendant Horn, also an officer

of K.L.R. and closely associated to petitioner and pe-

titioner’s activities throughout the trial.

In addition to the above circumstances, eyewitness

testimony was introduced. At trial, eyewitness laborers

at the demolition operation at the Lewis Avenue location

testified that they could not identify petitioner as hav-

ing committed the offense charged. The prosecution

introduced prior grand jury testimony of these eye-

witness laborers as substantive evidence purporting to

show petitioner’s involvement with the offense charged.

In this regard, it is submitted that the circuit court’s

cursory conclusion, ‘‘ He [petitioner] was seen washing

these tankers out, and on some occasions a hose was seen

extending from these tankers into the sewer,’’ is mis-

leading. [Court of appeals opinion, infra, Appendix,

p. 42.] In fact, even with the grand jury excerpts

considered, petitioner was never positively identified by

the eyewitnesses as having perpetrated the discharge

as alleged in the indictment.

Absent the above-capsualized scientific expert evi-

dence and the eyewitness evidence, the prosecution had

no case probative of petitioner’s guilt as charged. Even

with this evidence, it is respectfully submitted that

‘‘no rational trier of fact could have found proof of

guilt beyond a reasonable doubt.’’ Jackson v. Virgimia,

supra, p. 324. A corollary to this general insufficiency

of evidence question is that this conviction solely based

upon substantive use of prior grand jury testimony

even if held sufficient would in itself violate due process.

See, Senate Committee Report 1974, U. 8. Code Cong.

& Admin. News, pp. 7051, 7063 n. 21; 4 Weinstein’s

Evidence 801-89.

2. Did the court of appeals err by failing to address the

statistical probability evidence issue in affirming peti-

tioner’s conviction where 1) another circuit has reasoned

and held that statistical probability evidence unjustly

suggests, by quantification, that guilt has been estab-

lished beyond a reasonable doubt, 2) such evidence had

the appearance of certainty as to ultimate facts and

unjustly usurped the function of the jury in this case,

and 3) the prosecution intentionally employed such

evidence at trial and in closing argument to unfairly

influence the jury’s deliberations, so that review should

be granted to resolve a conflict of circuits and so that

the question of admissibility and unjust impact of sta-

tistical probability evidence can be settled by this Court?

On appeal, the question of admissibility and unfair

impact of statistical probability evidence was raised

but was not ruled upon by the court of appeals. The

court of appeals’ failure to address this issue in

affirming petitioner’s conviction places the court of

appeals in conflict with another circuit on this issue.

In United States v. Massey, 594 F’. 2d 676 (8th Cir.

1979), the Eighth Circuit held that it was reversible

error to allow introduction of mathematical probabili-

ties evidence and for the prosecutor, in closing argu-

ment, to infuse in the minds of the jury confusion in

identifying samples with identifying the perpetrator

of the crime. The Eighth Circuit reasoned,

Our concern over this evidence is . . . with its

potentially exaggerated impact upon the trier of

faci. Testimony expressing opinions or conclu-

sions in terms of statistical probabilities can make

the uncertain seem all but proven, and suggest, by

quantification, satisfaction of the requirement that

guilt be established ‘‘beyond a reasonable doubt.”’

Id., p. 681.

It is respectfully submitted that the holding and rea-

soning of the Highth Circuit in Massey, applied to the

facts of the present case, would result in reversal of

petitioner’s conviction so that a genuine conflict of

circuits exists which should be resolved by this Court.

By way of underscoring the existence of the con-

flict exposited above, the following language appears

in the A. L. R. annotation regarding this issue:

In all cases in which the question arose, the

court held that it was reversible error to permit

an expert witness to testify as to mathematical

probabilities that were offered to show ‘tat the

defendant was the person who committed the al-

leged crime. 36 A. L. R. 8d 1194, at 1194.

The presence of this language in A. L. R, 3d, contrary

to the holding below, demonstrates that resolution of

the present question would be of national importance.

The facts and circumstances underlying the present

issue may be set forth as follows. The scientific expert

witnesses who testified that sewer samples matched sam-

ples from a storage tank at petitioner’s Kentucky Liquid

Recycling Company claimed a statistical probability of

reliability of 99% accuracy for their methods, This

statistical probability evidence was admitted through

the witnesses Benz and Allen at length. In closing

argument, the prosecutor imbued this trial testimony

with exaggerated impact by emphasizing that the scien-

tific expert matching testimony pointed to petitioner’s

K.L.R. Company and was ‘‘99 per cent reliable.’’

They have made these determinations on the

reliability so that he [the expert] could testify that

the three methods each point to KLR, are inde-

pendently reliable and together are 99 per cent

reliable, [,Prosecutor’s closing argument, ‘T.E,

Vol. XXVII, pp. 82, 143.]

Such testimony and comment had an unfairly con-

clusive impact upon the jury to the prejudice of pe-

titioner.

It is respectfully submitted that review should be

granted to resolve the conflict of circuits on the issue

of admissibility and unjust impact of statistical prob-

ability evidence and to settle this question which has

not been previously decided by this Court.

3. Was petitioner’s Sixth Amendment right to an open

and public trial abridged when prior grand jury testi-

mony of eyewitnesses, crucial to the jury's verdict of

guilty, was admitted as substantive evidence pursuant

to Federal Rule of Evidence 801(d) (1) (A), the injustice

being the substantive use of inculpatory evidence de-

veloped in a secret proceeding?

Petitioner respectfully subiuits the substantive use

pursuant to F.R.E. 801 (d)(1)(A), of prior grand

jury testimony to convict criminal defendants abridges

both the Sixth Amendment right to confrontation and

the Sixth Amendment right to an open and public

trial.

However, through the instant question, petitioner

submits that the substentive use of prior grand jury

testimony pursuant to Rule 801(d)(1)(A) is uncon-

stitutional because it abridges the right to open trial

vouchsafed by the Sixth Amendment. Just such a

question was presented to the court of appeals in addi-

tion to a confrontation question, but the court of ap-

peals chose to answer only the confrontation question

in affirming petitioner’s conviction.

The question of whether the substantive use of

prior grand jury testimony can survive an open trial

attack is of national significance. Rule 801(d) (1) (A)

has added a poison dart to the federal prosecutor’s

quiver which in many cases (including the present

case) is clearly the difference between conviction and

acquittal, The rule which allows such a dart may well

be unconstitutional. The justices of this Court have

long indicated that the substantive use of evidence ad-

duced at secret proceedings is unconstitutional.

Mr. Justice Black noted ‘‘the traditional Anglo-

American distrust for secret trials’? in In Re Oliver,

333 U.S. 257, 268 (1948), pointing out.

that trials in the Star Chamber were public, and

that witnesses against the accused were examined

privately with no opportunity for him to discredit

them. Jd., n. 22.

In the same way, the eyewitnesses in petitioner’s case

were examined privately before the grand jury and

their secret testimony was later used substantively at

trial. As substantive evidence, their secretly adduced

testimony could never be erased no matter what else

the eyewitne: ses testified in open court. Why hold a

trial when evidence secretly adduced is counted on to

sustain a conviction?

Mr. Justice Frankfurter clearly described the un-

fairness of handicapping a defendant at trial with a

finding against him which he did not have an adequate

opportunity of resisting.

It would not be fair, if in the court in which the

accused can contest for the first time the validity

of the charge against him, lie comes handicapped

with a finding against him which he did not have

an adequate opportunity of resisting. In Re

Oliver, supra, pp. 284-285.

Now, criminal defendants all over this country are com-

ing to trial handicapped with having to fave substan-

tive evidence previously adduced by the prosecution at

secret grand jury proceedings. The prosecution coerces

the eyewitnesses to appear before the grand jury; the

prosecution coerces the eyewitnesses to testify before

the grand jury ; the prosecution elicits inculpatory testi-

mony from the eyewitnessses at the secret grand jury

proceeding; and such testimony is introduced as sub-

stantive evidence at trial!

Mr. Justice Brennan and Mr. Justice Marshall, con-

curring in Richmond Newspapers, Inc., v. Virginia,

—__. U. 8. —__, 65 L. Ed. 2d 973 (July 2, 1980), clearly

describe the assurance that open trials offer the public

as opposed to private and secret examination.

open examination of witnesses viva voce, in the

presence of all mankind, is much more conducive

to the clearing up of truth, than the private and

secret examination . . . where a witness may fre-

quently depose that in private, which he will be

ashamed to testify in a public and solemn tribunal.

Id., p. —_—, 65 L. Ed. 2d p. 1003.

In the present case as in cases all over the country,

evidence which has never seen the light of day, ‘‘viva

voce,”’ is being substantively introduced to support

criminal convictions. This Court has not yet decided

but should decide whether the subtantive use of such

evidence abridges a defendant’s right to an open and

public trial.

Mr. Justice Blackman, Mr. Justice Brennan, Mr.

Justice White, and Mr. Justice Marshall, concurring

in part and dissenting in part in Gannett Co., Inc. v. De-

Pasquale, 443 U. 8. 368 (1979), have stated the long-

range maleffect of secret proceedings is to undermine

confidence in the appearance of justice.

Secret hearings—though they be scrupulously fair

in reality—are suspect by nature. Public confi-

dence cannot long be maintained where important

judicial decisions are made behind closed doors

and then announced in conclusive terms to the

public. . . . Anything that impairs the open na-

ture of judicial proceedings threatens to under-

mine this confidence and to impede the ability of

the courts to function. Jd., p. 429.

Although the ill in Gannett was secret ‘‘judicial de-

cisions’ and the instant ill is secretly manufactured

‘substantive evidence’’ both can be cured by adherence

to the same constitutional protection: open and public

trial.

Those who advocate the substantive use at trial of

evidence secretly obtained argue that the witness w-ti-

fied under oath at the secret proceeding, is subject to

perjury charges, has a chance to testify at trial, is

available for cross-examination at trial, and the jury

may observe his demeanor as he testifies. Against all

these checks, the clear notice of Jeremy Bentham over

120-years ago still rings louder and truer.

Without publicity, all other checks are insufficient:

in comparison of publicity, all other checks are of

small account. Recordation, appeal, whatever

other institutions might present themselves in the

character of checks, would be found to operate

rather as cloaks than checks; as cloaks in reality,

as checks only in appearance. In Re Oliver, supra,

p. 271.

The ‘‘checks’’ of oath, testimony and cross-examination

at trial are but ‘‘cloaks’’ for the one-sided nature of

secret grand jury examination. So long as secretly

obtained evidence is used substantively at trial to

convict, whatever checks may exist are insufficient.

So long as secretly obtained evidence is used substan-

tively, the Sixth Amendment guarantee of open trial

is defeated.

In the present case, the sledgehammer substantive

use of grand jury eyewitness testimony wrongly re-

sulted in petitioner’s conviction. This question has not

been but should be considered by this Court.

4. Did the court of appeals err by failing to address the

introduction-of-prior-inconsistent-statements issue in af-

firming petitioner’s conviction where 1) prior incon-

sistent statements were not disclosed at the time the

witnesses testified contrary to 18 U.S.C. § 3500, 2) the

statements were introduced under Federal Rule of Evi-

dence 613(b) contrary to that rule’s foundation require-

ment, and 3) the statements were admitted in flagrant

violation of previous rulings of this Court and other

circuits so that review should be granted to exercise

the supervisory power of this Court?

The Jencks Act, 18 U.S.C. § 3500, and holdings of

this Court construing the Jencks Act such as Goldberg

v. United States, 425 U. 8. 94 (1976) and Campbell v.

United States, 365 U. S. 85 (1961) mak it clear that

witness statements to the F.B.I. are producible at the

time the witness testifies so that confrontation of the

witness shall not be denied. In the present case, ex-

tremely inculpatory statements of two eyewitnesses

were introduced through an F'.B.I. agent long after the

witnesses had testified and departed. The statements

summarized the prosecution’s theory of the case and

added inculpatory information not otherwise proven

at trial.

The prosecutor admitted that these statements were

not disclosed when the witnesses were available as re-

quired by the Jencks Act.

Just from a factual standpoint, the bottom line,

no, I did not give counsel the actual copies of the

signed statements which I will just show to you

here, Your Honor. [Transcript of Evidence, Vol.

XXI, p. 213.]

When the prosecutor finally did disclose the damaging

statements to the defense, the witnesses were not re-

called for examination on the statements. Due to the

clear Jencks Act violation, cross-examination of the

eyewitnesses was denied. The eyewitnesses may well

have been able to diminish the obviously great impact

of the F.B.I. agent’s testimony on the statements; no

one can now calculate whether the Jenck’s material

could have been used effectively at trial. This Court

has declared that ‘‘the harmless-error doctrine must be

strictly applied in Jencks Act cases.’’ Goldberg, supra,

425 U.S. at 111, n. 21.

In addition to the Jencks violation, the prior incon-

sistent statements were introduced in violation of the

foundation requirement of Federal Rule of Evidence

613(b) as well as in conflict with rulings of other cir-

cuits and the familiar foundation requirements tra-

ditionally approved by this Court. The language of

Rule 613(b) requires that the witness be ‘‘afforded an

opportunity to explain or deny”’ the statement and that

the opposite party be ‘afforded an opportunity to in-

terrogate’’ the witness on the statement. The language

of this rule was clearly violated in the present case.

The construction of Rule 613(b) by other circuits

clearly conflicts with the failure of the eourt of appeals

to address this issue when raised. The Fifth Circuit

for instance, in United States v. Rice, 550 F. 2d 1364

(5th Cir. 1977), cert. den. 434 U.S. 954, clearly states

that before a statement is admissible under Rule 613(b)

three criteria must be met, including ‘‘The witness

must be afforded an opportunity to explain or deny

the statement; and The opposing party must be af-

forded an opportunity to interrogate the witness con-

cerning the statement.’’ Jd., p. 1374. Accord, Hilyer

v. Howat Concrete Co., Inc., 578 F. 2d 422, 427 (D.C.

Cir. 1978). The construction of Rule 613(b) by other

circuit courts was clearly not followed in the present

case. As a result of the eyewitnesses’ unavailability,

the foundation requirement of Rule 613(b) was clearly

violated,

The importance of this foundation requirement tra-

ditionally has been emphasized by this Court in such

cases as Conrad y, Griffey, 16 Howard 46 (1853), and

Steamboat Charles Morgan v. Kouns, 115 U. 8. 69, 77

(1885). In the latter case, this court held:

The rule is, that the contradictory declarations of

a witness, whether oral or in writing, made at an-

other time, cannot be used for the purpose of im-

peachment until the witness has been examined

upon the subject, and his attention particularly di-

rected to the circumstances in such a way as to

give him full opportunity for explanation or ex-

culpation, if he desires to make it. Id., p. 77.

This familiar foundation requirement ‘‘is preserved’’

by Rule 613(b). See, Rule 613: Notes of Advisory

Committee on Proposed Rules, Note on Subdivision

(b).

It is respectfully submitted that the introduction

of thoroughly damaging prior inconsistent eyewitness

statements through an F.B.I. agent in violation of the

Jencks Act and Jencks cases, in violation of the founda-

tion requirement of Rule 613(b) as construed by other

circuits, and in violation of the familiar foundation re-

quirements traditionally announced by this Court,

constitutes such a clear departure from the accepted

course of judicial proceedings as to call for an exercise

of this Court’s power of supervision.

5. Did the court of appeals err by failing to address the

ception of a civil action, 2) this Court has repeatedly

one is not to be subjected to a penalty unless

of the statute plainly impose it, and 3) im-

position of the criminal penalty in this case violates

petitioner’s Sixth and Fifth Amendment rights to no-

tice and due process, so that review should be granted

to settle the question of vagueness in this statute?

On appeal, the question of statutory vagueness in

the enforcement provisions of the Federal Water Pol-

lution Control Act, 33 U.S.C. § 1319, was raised but was

not addressed by the court of appeals. The court of

appeals’ failure to grant relief as to this issue ignores

prior decisions of this Court, so that review should be

granted.

This Court has held that ‘‘one is not to be subjected

to a penalty unless the words of the statute plainly im-

pose it.’? United States v. Campos-Serrano, 404 U. 8.

293, 297 (1971). ‘This Court has stated that,

Penal statutes are construed narrowly to insure

that no individual is convicted unless ‘‘a fair

warning has first been given to the world in lan-

guage that the common world will understand, of

what the law intends to do if a certain line is

passed.’’? Mourning v. Family Publications Serv-

ice, Inc., 411 U. 8, 356, 375 (1973).

In the present case, ‘fair warning’’ of criminal penalty

has not been given to the world, so that imposition of

the criminal penalty abridges constitutional guaranties

of notice and due process.

The enforcement statute, 33 U.S.C. § 1319, provides

for civil penalties (section d) and criminal penalties

(section ¢), but states in section (a) that any violation

must result in either the issuance of a compliance order

or the inception of a civil action (ie., not a criminal

action).

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, . . . 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. [33 U.S.C. § 1319(a)(3).]

To the man of common intelligence, this language does

not provide for a criminal penalty for a violation. This

language warns of either a compliance order or a civil

action.

In addition to vague statutory language, conflict-

ing legislative history underscores petitioner’s view

that the enforcement statute is unconstitutionally

vague,

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 proceed-

ings under §1319(c). United States v. Frezzo

Brothers, Inc., 602 F. 2d 1123, 1126 (3rd Cir. 1979),

cert. den, 444 U. 8. 1074 (1980).

In addition to vague statutory language and conflicting

legislative history, the first circuit court decision to

consider and decide the applicability of a criminal

penalty under 33 U.S.C. § 1319 was not decided until

over two-years after the offense alleged in petitioner’s

indictment. The viable issue decided in Frezzo, supra,

was:

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 prinicpal issue presented in this

appeal. Jd., p. 1124.

The very fact that the issue of applicability of any

criminal penalty under § 1319 was still a viable issue

in a federal circuit court as late as 1979 underscores

petitioner’s view that the enforcement statute is now

unconstitutionally vague and certainly was when he

was indicted in 1977.

In addition, the enforcement statute provides a

standard of negligent violation for both civil and crim-

inal penalty sections. This in itself is vague, because

one wouldn’t forsee a criminal penalty for a negligent

act, especially where identical conduct could be civilly

punished.

It is respectfully submitted that in this day of na-

tional concern with environment and pollution, review

should be granted by this Court to decide the consti-

tutionality of the criminal enforcement provisions of

the Federal Water Pollution Control Act.

CONCLUSION

Because petitioner’s case is the first jury conviction

under the criminal provisions of the Federal Water

Pollution Control Act, because this Act has such na-

tional prominence, because the questions presented in

this petition are so significant legally and historically,

and because the court of appeals has erred so fla-

grantly, it is respectfully submitted that review should

be granted.

Respectfully submitted,

FRANK E. Happap, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 583-4881

Counsel of Record for Petitioner

Burton Mitwarp, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 583-4881

Counsel for Petitioner

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-5339

Unrrep States or AMertoa, - ~- Plaintiff-Appellee,

Donato BE, Distuzrn, - - ~~ £Defendant-Appellant.

On Appeal from the United States District Court

for the Western District of Kentucky

at Louisville,

Decided and Filed February 12, 1981.

Before: Epwanrps, Chief Circuit Judge; Brown and

Kennepy, Circuit Judges.

Brown, Circuit Judge. Appellant, Donald E. Distler,

was convicted after a jury trial in the Western District of

Kentucky of two violations of the Federal Water Pollution

Control Act (33 U.S.C. § 1251 et seq.). Criminal penalties

are imposed by 33 U.S.C. § 1319, which provides in part:

(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 implement-

ing 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, ...

83 U.S.C. § 1819 (1977).* In this appeal appellant presents

several issues for review including challenges to certain

evidentiary rulings made at trial, a challenge to the consti-

tutionality of Fed.R.Evid. 801(d)(1), and a contention that

the evidence offered at trial was insufficient’ to sustain a

verdict of guilt. For the reasons expressed below, we affirm

appellant’s conviction in all respects,

The pollutants involved in this case are hexachlorocyclo-

pentadiene (hexa), octachlorocyclopentene (octa), and

hexachlorobenzene (HCB). Appellant was convicted of dis-

charging a mixture of these pollutants, called PCL bottoms,

into the Ohio River, by way of the sewers of the Louisville

and Jefferson County Metropolitan Sewer District (MSD).

POL Bottoms

Hexa, a chlorinated hydrocarbon, is an intermediary

product used in the production of other chemical com-

pounds, including pesticides and flame retardant resins.

Commercial hexa is produced in batches, which have as a

byproduct waste chemicals called PCL bottoms. PCL bot-

1Section 1319 is the criminal enforcement section of portions

of the Federal Water Pollution Control Act (33 U.S.C, § 1251

et seq.). The specific sections that appellant was convicted of

violating, 38 U.S.C. §4 1311 and 1317, provide authority for the

Administrator of the Environmental Protection Agency to establish

guidelines for the disposal of pollutants. Failure to follow the

guidelines established pursuant to those sections results in the

imposition of criminal penalties pursuant to Section 1319,

toms are comprised of a combination of approximately 10-

15% hexa, 30% octa, 5% i1CB, and a variety of miscellan-

eous polymers. During the time period relevant to the in-

dictment, the Velsicol Chemical Corporation (Velsicol)

plant in Memphis was the only manufacturer in the United

States of hexa, and therefore the only source of PCL bot-

toms, the chemical waste associated with its production.

PCL bottoms do not mix with water and are heavier

than water. If they are placed in water, a very small

amount rises to the surface, while the great bulk of the ma-

terial remains at the bottom. The portion exposed to the

air volatilizes, emitting a distinctive odor, and in some in-

stances, a haze. If volatilized, PCL bottoms cause eye and

skin disorders similar to those caused by tear gas.

Because of the propensity of PCL bottoms to solidify

at normal temperatures, these waste chemicals were kept

in suspension for transportation by mixing them with a

Number 4 grade fuel oil. The Number 4 grade oil, not

normally refined directly, was produced by mixing a me-

tered quantity of light cycle Number 2 grade oil, similar to

kerosene, with an estimated quantity of heavier Number 6

grade oil. Because no two estimates of the quantity of

Number 6 grade oil needed to complete the mixture were

the same, each tankerload of PCL bottoms contained a

unique blend of oils.

Closedown of the Morris Forman Wastewater

Treatment Plant

Beginning in mid-March, 1977, employees of MSD’s Mor-

ris Forman Wastewater Treatment Plant (Morris Forman

Plant) began complaining of a variety of physical ailments

caused by particularly noxious fumes and odors. These

complaints came predominantly from employees working in

the Screen and Grit Building. This building contains four

rectangular tanks, known as grit chambers, which arg

equipped with a series of screens that strain sewage as it

enters the plant.

During the week of March 21, 1977, maintenance crews

complained of chemical fumes that burned their eyes, noses,

throats, and skin. On March 25, a crew directed to clean

grit chamber three removed the water from the chamber,

and the fumes problem became worse. Attached to the

walls of the chamber was a very thick, viscid, brownish resi-

due. Noxious fumes frustrated efforts to clean the cham-

ber with water and steam.

After the plant manager was notified of the problems in

the grit chamber on March 27, 1977, a sample of the residue

was taken from the chamber and sent to the Environmental

Protection Agency (EPA) lab in Athens, Georgia. Tests

performed there revealed the presence of hexa and octa.

Velsicol’s Memphis plant manager came to Louisville on

March 29, 1977, and confirmed that the material in the grit

chamber was “hex bottom.” A sample of this substance,

sample #1110 (MFP), was later introduced in appellant’s

trial.

Because of the toxicity of PCL bottoms, the plant was

essentially abandoned in late March, and virtually all the

sewage normally entering it passed untreated into the Ohio

River. Between March 29, 1977 and June 8, 1977, approxi-

mately 100 million gallons of untreated sewage passed into

the Ohio River daily.

The only firm receiving PCL bottoms after mid-1976 that

had any direct relationship to the Louisville area was the

Chem-Dyne Corporation of Hamilton, Ohio (Chem-Dyne),

near Cincinnati, which was under contract to Velsicol to

transport its PCL bottoms to Canada for disposal. Review

of available shipment records revealed that Chem-Dyne de-

livered PCL bottoms to Kentucky Liquid Recycling, Inc.

Kentucky Liquid Recycling, Inc.

Kentucky Liquid Recycling, Inc. (KLR), a liquid waste

disposal company, was incorporated in Kentucky on August

17, 1976. Appellant was the sole shareholder and sule mem-

ber of the board of directors. Appellant was also the regis-

tered agent for service of process, and the principal office of

KLR was appellant’s home.

In late August, 1976, appellant contacted the Kentucky

Department of Natural Resources to determine what per-

mits were required in order to operate a liquid waste dis-

posal company. In Louisville, on September 16, 1976, ap-

pellant leased portions of a Rowan Street warehouse, and in

early March, 1977 he leased a brickyard. During this time,

appellant also began operating a former Amoco tank farm,

located in nearby Néw Albany, Indiana. KLR generated

operating funds by accepting and hauling waste materials

and by the sale of some of the drums and their contents.

From December, 1976, through April, 1977, Chem-Dyne

was the exclusive transporter of Velsicol PCL bottoms. In

late 1976 or early 1977, Chem-Dyne personnel came to Louis-

ville to discuss the disposal of PCL bottoms with appellant.

KLR’s incinerator designer was informed of various aspects

of PCL bottoms incineration, and he was questioned about

the ability of the proposed KLR incinerator to adequately

accomplish the task. Appellant was provided with a descrip-

tion of the various chemicals included in the Velsicol waste

product and was given material data safety sheet that de-

scribed the toxic properties of those chemicals,

In February, 1977, it was agreed that KLR would store

the PCL bottoms in tanks until the incinerator was opera-

tional and the required permits were obtained. If KLR did

not obtain the required permits within six months, or if

Chem-Dyne’s customer, Velsicol, did not approve of KLR,?

then Chem-Dyne would remove the material.

Shipment of PCL Bottoms from Velsicol to KLR

To stabilize the PCL bottoms for shipment, Chem-Dyne

drivers would pick up a PCL bottoms tanker, proceed to the

Delta Oil Refinery in Memphis, and take on a load of Num-

ber 4 grade oil. The full tankers would then be delivered

to KLR in Louisville. At some later time, the Chem-Dyne

drivers would pick up the empty tankers, either at the New

Albany site, or at a Holiday Inn on Dixie Highway, near

Louisville. Chem-Dyne tankers were shiny metallic or

stainless steel in color or finish and were shaped either as

straight tubes or with a V-shaped drop in the middle. These

were easily distinguishable from appellant’s tractor tanker,

which consisted of a blue Autocar truck tractor and an

orange-red straight tube tanker.

Location of the Source of the Contaminant

Between approximately March 29 and April 4, 1977,

officials attempted to ascertain the location at which the

toxic contaminant was introduced into the MSD sewer sys-

tem, utilizing a trace procedure that combined sniff search-

ing and actual sampling. Officials collected samples from

the major trunk lines feeding into the Morris Forman Plant

in their attempt to identify the contaminated lines. They

concluded that the principal point of introduction of the

contaminant into the sewer was within two or three blocks

of the 28th Street and Broadway intersection in Louisville.

2Velsicol had no knowledge of Chem-Dyne’s contract with KLR

to dispose of PCL bottoms until some time after the dumping

incident,

Investigation of KLR

In early April, KLR was investigated in the attempt to

discover how the PCL bottoms could have entered the sewer

system. On April 4, 1977, personnel from the EPA and

other administrative agencies visited those properties

known to be owned or controlled by KLR.

Random sampling of these sites revealed some drums

with significant concentration values of hexa. Investiga-

tion of appellant’s Rowan Street warehouse revealed about

5,000 stacked drums, some of which bore Chem-Dyne mark-

ings. At the KLR site in New Albany, EPA personnel took

samples from each of the ten tanks. Sample #1257 (KLR

1), was taken from Tank #6, and was later introduced in

evidence at appellant’s trial.

After the FBI entered the case, search warrants were

obtained for all the sites inspected by the EPA as well as

for the Hardin County brickyard leased by appellant and

the farm site on the Dixie Highway owned by appellant’s

father. These warrants were executed between April 15

and 17, 1977. The searches revealed large quantities of

chemicals on each site, including hexa, octa, and HCB in de-

grees of concentration ranging from “trace amounts” to

“significant concentrations.” On April 15, 1977, sample

#1785 (KLR 2) was taken from Tank #6 at the New Albany

site, and was later introduced in evidence during appellant’s

trial.

Lewis Avenue Investigation

On April 17, 1977, the EPA and the FBI received in-

formation that a demolition site contiguous to the inter-

section of 28th Street and Broadway might be the place

where the toxic contaminants were dumped into the sewer.

The demolition site was surrounded by fence, with access

to the area available only through a gate adjacent to an

oil storage tank area.

Upon arriving at the site, investigators were shown three

manholes on Lewis Avenue. Samples were taken from

manholes 3, 4, and 5. The samples from manhole 5 showed

no trace of hexa or octa. The samples from manhole 4

showed the presence of some hexa and octa, and the samples

taken from manhole 5 were “hot.” One of the samples from

manhole 3, sample #1872 (Lewis), was later introduced in

evidence during appellant’s trial.

II,

Appellant makes two challenges to the admission of

grand jury testimony at his trial. First, appellant argues

that some of the grand jury testimony was not “inconsistent”

with the trial testimony, and was thus erroneously sub-

mitted to the jury as substantive evidence of guilt under

Fed.R.Evid. 801 (d)(1)(A). Rule 801(d)(1) provides:

(d) A statement is not hearsay if —

(1) Prior statement by witness. The declarant

testifies at the trial or hearing and is subject

to cross-examination concerning the statement,

and the statement is (A) inconsistent with his

testimony, and was given under oath subject to

the penalty of perjury at a trial, hearing, or

other proceeding, or in a deposition, or (B)

consistent with his testimony and is offered to

rebut an express or implied charge against him

of recent fabrication or improper influence or

motive, or (C) one of identification of a person

made after perceiving him; .. .

Second, appellant argues that allowing any grand jury testi-

mony to be considered as substantive evidence of guilt vio-

lates his Sixth Amendment right to an “open trial” and

violates his due process right not to be convicted on the

basis of unreliable evidence.*

The eyewitnesses who testified at appellant’s trial were

predominantly associated with Highway Wrecking Co.,

which was carrying on the demolition at the site that we

have referred to. This concern was operated by Frank

Hornung, who happened to be a close friend of appellant.

The eyewitnesses, who testified at appellant’s trial in late

1978, had also testified before the grand jury in mid-1977.

During the one and one-half year hiatus between the grand

jury proceedings and appellant’s trial many of the witnesses

forgot portions of their grand jury testimony or remem-

bered it with less certainty of detail. Accordingly, much of

the grand jury testimony was introduced in evidence at ap-

pellant’s trial and was considered by the jury as substantive

evidence of guilt in accordance with Fed.R.Evid. 801(d) (1).

With regard to appellant’s assertion that some of the

grand jury testimony was erroneously admitted under Rule

801(d)(1)(A) because it was not inconsistent with in-court

testimony, our review of the record convinces us that the

trial court did not ebuse its discretion when it admitted the

challenged grand jury testimony. We think it clear that,

for purposes of this rule, partial or vague recollection is

inconsistent with total or definite recollection. Thus, when

a witness remembers events incompletely, or with some

equivocation at trial, it is not improper to admit a prior

statement that otherwise complies with the limitations of

Rule 801 (d)(1), if that prior statement indicates that at

‘This is essentially a Confrontation Clause challenge, as appel-

lant’s main argument against the use of grand jury testimony is

that it is unreliable because before the grand jury ‘‘leading ques-

tions and hearsay are permitted; confrontation is not.’’ Appel-

lant’s Brief at 49.

an earlier time the witness remembered the events about

which he testified with more certainty or in more detail.

In such a case, it may well be that some of the prior testi-

mony corroborates the in-court testimony. The admission

of this evidence, however, is not error if, as is the case

here, the prior statements are predominantly inconsistent

with the in-court statements, and the corroborative portions

are needed to set the whole in context. Determinations such

as these are properly left to the discretion of the trial

court, and that discretion was not abused here.

In addition, we note that much of the grand jury testi-

mony introduced at trial involved prior statements concern-

ing identification, and was properly admissible uncer sub-

section (C) of Rule 801(d)(1), which contains no incon-

sistency requirement.

With regard to the consideration of appellant’s constitu-

tional challenge to the admission of grand jury testimony as

substantive evidence of guilt, a review of the legislative his-

tory that preceded the adoption of Rule 801(d)(1)(A) is

helpful. The Rule as originally submitted to Congress by

the Supreme Court, as the House of Representatives noted

in its Report, would have allowed any prior inconsistent

statement to be considered as substantive evidence of guilt

by the trier of fact, “an approach followed by a small but

growing number of jurisdictions and recently held consti-

tutional in California v. Green, 399 U. S. 149 (1970).” H.R.

No. 93-650, 98rd Cong., 2nd Sess., Note to Rule 801(d) (1),

reprinted im [1974] 4 U. S. Code Cong. & Ad. News 7086.

The House amended the Rule, limiting the admissibility of

prior inconsistent statements under the Rule to “those made

while the declarant was subject to cross-examination at a

trial or hearing or in a deposition.” Jd, at 7087.

The Senate rejected the House amendment as too restric-

tive, opining that since the Rule is operative only if the

declarant testifies at trial, at which time he may be cross-

examined, the requirement of cross-examination at the time

the original statement is made is unnecessary. The Senate

emphasized the benefits of the rule allowing the jury to con-

sider testimony given “nearer in time to the events, when

memory was fresher and intervening influence had not been

brought into play.” S.Rep.No. 93-1277, 93rd Cong., 2nd

Sess., Note on Rule 801(d)(1)(A), reprinted in [1974] 4

U. S. Code Cong. & Ad. News 7062-63.

The version of Rule 801(d)(1)(A) that was eventually

adopted resulted from the efforts of a joint House and

Senate committee. In its report, the joint committee stated

that “[t]he rule as adopted covers statements before a

grand jury.” Conference Report No. 93-1597, 93rd Cong.,

2nd Sess., Note on Rule 801(d)(1)(A), reprinted in [1974]

4 U.S. Code Cong. & Ad. News 7104,

The opinion referred to in the House Report, California

Vv. Green, 399 U. S. 140 (1970), is also instructive at this

point. In Green, the Supreme Court held that the admis-

sion, as substantive evidence of guilt, of prior inconsistent

statements is not violative of the Confrontation Clause as

long as the declarant testifies, and is subject to cross-ex-

amination, at trial. The Court identified three protections

furthered by the confrontation requirement: to insure that

the witness testifies under oath; to allow cross-examination

of the witness ; and, to provide the jury with the opportunity

to observe the demeanor of the witness as he testifies. Id.

at 158. Although it noted that these protections may be

absent with regard to an out-of-court statement, the Court

stated that “if the declarant testifies at trial, the out-of-

court statement for all practical purposes regains most of

the lost protections.” Id. Because of this, the Court noted

that there is “little reason to distinguish among prior in-

consistent statements on the basis of the circumstances un-

der which the prior statements were given.” Id. at 168.

We think it clear that the admission, as substantive evi-

. nee, of grand jury testimony that meets the requirements

of Rule 801 (d)(1)(A) does not run afoul of the Constitu-

tion. The Rule was expressly formulated to allow admis-

sion of grand jury testimony, and this court and others have

held that grand jury testimony admitted under the Rule

may properly be considered as substantive evidence of guilt.

See e.g., United States v. Woods, 613 F. 2d 629, 637 (6th

Cir.), cert. denied, __. U. 8S. —__., 66 L. Eid. 2d 99 (1980) ;

United States v. Mosley, 555 F’, 2d 191, 193 (8th Cir. 1977),

cert, denied, 434 U. S. 851 (1978) ; United States v. Castro-

Ayon, 537 F. 2d 1055, 1057 (9th Cir.), cert. denied, 429 U. S.

983 (1976).

The Court in Green, supra, indicated that, as long as the

declarant testifies at trial, the circumstances surrounding

the rendering of the initial statement are of little import.

Indeed, the rule as submitted by the Court contained no

restrictions on the character of prior inconsistent state-

ments that would have been admissible. The Rule in its

present form contains more protections than the version

submitted by the Court, and contains more restrictions than

the language of Green, supra, would seem to indicate is

necessary.

In any event, the protections furthered by the confronta-

tion requirement, as enunciated by the Court in Green,

supra, are adequately served by Rule 801(d)(1)(A). The

declarant must testify at trial; he must be subject to cross-

examination concerning the statement; and, the statement

must have been given under oath. Thus, we find no merit

to appellant’s constitutional challenge to the validity of Rule

801(d)(1)(A).

Ill,

Appellant also contends on this appeal that expert testi-

mony indicating that samples taken from the KLR site, the

Lewis Avenue manhole, and the MFP grit chamber came

from the same source was improperly admitted. In support

of this contention, appellant argues that this expert testi-

mony fails to satisfy the standard adopted by this court in

United State v. Brown, 557 F. 2d 541 (6th Cir. 1977). In

Brown, this court stated:

Four factors must appear in the record to uphold the

admission of expert testimony: 1. qualified expert; 2.

proper subject; 3. conformity to a generally accepted

explanatory theory; and 4. probative value compared

to prejudicial effect.

Id. at 556. Specifically, appellant argues that the expert

testimony introduced with regard to oil matching has not

gained general acceptance in its scientific field.

Oil spill identification, or oil matching, may be accom-

plished utilizing various test procedures, some of which are

discussed below. Experts in oil matching refer to a four-

category system when they express their results: match;

possible match; indeterminate; and, non-match. It is im-

portant to note at this juncture that the expert testimony

in this case regarding comparisons of various samples re-

fers to the matching of the oil that was mixed with the

PCL bottoms for transportation and not to a matching

per se of the PCL bottoms themselves.

The matching of oil samples is made possible because of

the unique characteristics of crude oil. Oil is formed when

biological matter is trapped underground and is subjected

to heat and pressure for a period of time. In each under-

ground pocket, different ratios of plant and animal matter

are present, and the oil eventually produced from this

combination is unique. This uniqueness enables experts to

distinguish oil samples, even as between two samples taken

from adjacent pockets within the same geological formation.

The refined oil retains its unique character.

The methodology of oil matching involves the isolation

of the molecular compounds associated with oil, particularly

hydrocarbons and sulpbur compounds. Instrumental in this

process is the gas chromatograph, which is essentially an

extremely sensitive filtering machine. The particular sam-

ple to be tested is mixed with a liquid solvent. The mixture

is heated until it forms a gas. The gas is then forced through

a column, which is a glass tube filled with special filtration

material. Each molecular compound will elute through a

given column and temperature at the same rate. At the out-

going end of the column a detector is attached, which re-

cords the quantity and concentration of each particular

molecular compound contained in the sample. The data

thus accumulated are converted into electrical impulses,

which are recorded in graph fashion, called chromatograms.

Comparison of the graphs reveals whether the tested sam-

ples match.

EPA chemist Frank Allen tested the two KLR samples,

the Lewis sample, and the MFP sample using the gas

chromatograph in conjunction with two different types of

detectors, one specific for hydrocarbons (FID) and one

specific for sulphur compounds (FPD).* Allen concluded

on the basis of independent analyses of FID and FPD data

that the four samples came from the same source.

Dr. Alan Bentz, a research chemist with extensive ex-

pertise in the area of oil matching, found, on the basis of

FID data, that the four samples came from the same source.

At trial he interpreted the FPD chromatograms of the MFP

samples and the KLR 1 sample, concluding that this data

indicated that the two samples matched. In Dr. Bentz’ opin-

4FID is the abbreviation for flame ionization detector and FPD

for flame photometric detector. The FPD is 100 times as sensitive

as the FID. Although these two detectors reveal results that are

independently reliable, they may be attached to the column to simul-

taneously record data as the molecules elute from the column.

ion, the oil samples matched, and the presence of hexa and

octa in the samples removed virtually all doubt concerning

the common origin of the samples.

An expert in the area of mass spectroscopic analysis, a

process that analyzes ions formed by bombarding the mole-

cules that elute from the gas chromatograph, also testified

that the KLR 1 and MFP samples matched. In addition,

experts in the field of organic analysis, which uses the gas

chromatograph and various detectors to identify specific

compounds, testified that all four samples matched.

In support of his challenge to the introduction in evi-

dence of this expert testimony, appellant relies on this

court’s reasoning in Brown, supra. At issue in Brown was

whether the process of ion microprobic analysis was gen-

erally accepted in its field as a viable method for comparing

human hair samples. The court held that although ion

microprobic analysis had obtained a sufficient degree of

acceptance in the field of mass spectrometry, the use of

this technique in analyzing hair samples was still in the

experimental stage.

In its discussion of the basis for the expert testimony

introduced in Brown, the court noted that no reported cases

were found in which testimony based upon microprobic

analysis of hair had been admitted, and that the parties had

cited no case of any kind in which evidence based upon

microprobic analysis had been admitted. The court also

noted that the experts who testified in Brown admitted that

their test results had not been duplicated elsewhere and that

they were unable to point to any authority in their field to

support their position. Nor was there any published au-

thority to support these experts’ opinions concerning the

reliability of the tests they performed. The court further

noted that in addition to the absence of specific indicia of

reliability, there were no absolute standards by which the

accuracy of their measurements could be gauged. 557 F. 2d

at 557-58. Thus, the court concluded:

While it is a truism that every useful new development

must have its first day in court, expert testimony on a

critical fact relating to guilt or innocence is not admis-

sible unless the principle upon which it is based has

attained general acceptance in the scientific community

and is not mere speculation or conjecture. We are not

convinced, on the present state of the record that ion

microprobic analysis of human hair has yet reached the

level of general acceptance in its field, or that the ex-

periments conducted in this case have been shown to

be sufficiently reliable and accurate, to provide an ac-

ceptable basis for expert identification in a criminal

trial.

Id. at 558-59.

Reasoning from Brown, appellant contends that al-

though the oil matching techniques testified about at trial

are not new, the use of these techniques to analyze sewer

samples has not reached the level of general acceptance

that establishes an acceptable basis for the introduction of

expert testimony in a criminal trial.

In United States v. Siifel, 433 F. 2d 431 (6th Cir. 1970),

cert, denied, 401 U. S. 983 (1971), this court utilized the

oft-quoted standard of general acceptance enunciated in

Frye v. United States, 293 F. 1013 (D.C. App. 1923). Quot-

ing from Frye at 1014, this court stated:

Just when a scientific principle or discovery crosses the

line between the experimental and demonstrable stages

is difficult to determine. Somewhere in this twilight

zone the evidential force of the principle must be recog-

nized, and while courts will go a long way in admitting

expert testimony deduced from a well-recognized scien.

tific principle or discovery, the thing from which the

deduction is made must be sufficiently established to

have gained general acceptance in the particular field

in which it belongs.

433 F. 2d at 438. In United States v. Franks, 511 F. 2d 25

(6th Cir.), cert. denied, 422 U.S. 1042 (1975), this court

added that “we deem general acceptance as being nearly

synonomous with reliability. If a scientific process is re-

liable, or sufficiently accurate, courts may also deem it

‘generally accepted’.” Id. at 33, n. 12.

We feel it best to discuss the question of whether the oil

matching procedures involved in this case are generally ac-

cepted in their scientific field in terms of two separate in-

quiries. First, are the methods utilized in the instant case

generally accepted as reliable in the oil matching field in

general? Second, if the first question is answered affirma-

tively, are these methods properly transferable to an analy-

sis of the sewer samples tested in the instant case?

With regard to the first inquiry mentioned above, the

court concludes from the record that the methods employed

by the experts who testified in the instant case, namely

gas chromatograph analysis performed in conjunction with

the various detectors, is a generally accepted method of

matching oil samples. These methods were shown to be

highly reliable, and they have received a significant degree

of national and international recognition.

Dr. Bentz testified that tests performed on the FID

found it to be reliable in excess of 90%. Similar tests per-

formed on the FPD found it also to be reliable in excess of

90%. Because the results obtained from each detector are

independently reliable, when the results of both detectors

agree, they are reliable in excess of 99%. Dr. Bentz testi-

fied that this high degree of reliability is enhanced when

samples containing oil from the same source also contain

the same non-petroleum components.

At least two other courts have found that gas chroma-

tograph/FID/FPD analysis is a highly reliable method of

oil fingerprinting. In United States v. Slade, 447 F. Supp.

638 (E.D. Tex. 1978), the court found that results of oil

matching tests conducted with the gas chromatograph and

FID and FPD detectors yield oil spill identification results

that are reliable “in the neighborhood of 99.7%.” Id. at

644. The Southern District of Texas reached a similar con-

clusion in an unreported case. See id.,n. 6. See also dis-

cussion in Commonwealth of Puerto Rico v. SS Zoe Coloco-

troni, 456 F. Supp. 1327, 1342-43 (D. P. R. 1978), aff’d, 602

F, 2d 12 (1st Cir. 1979).

Further, a standard method of gas chromotograph/FID/

FPD analysis has been promulgated by the American So-

ciety for Testing and Materials (ASTM).° Dr. Bentz testi-

fied that the procedures utilized by the experts who testi-

fied at appellant’s trial did not deviate significantly from

the ASTM standard procedure. In addition, domestic and

foreign oil concerns have shown confidence in this oil iden-

tification procedure.

5In Application of American Society for Testing Materials, 231

F. Supp. 686 (E.D. Pa. 1964), ASTM was described by the court

as follows:

ASTM is a non-profit, charitable organization. It writes

standards by which building materials and similar matters

may be judged. These standards are adopted and relied upon,

often without any independent investigation, by those who

want to buy materials suited to their purposes. Among those

who so rely are municipalities, state governments, and depart-

ments of the Federal Government. ASTM has about 12,000

members. Its membership is composed of three categories:

producers, consumers, and general interest (academic, etc.).

Its specifications are written by technically qualified commit-

tees composed of members from the three categories.

Id. at 688,

Having determined that gas chromatograph/FID/FPD

analysis is generally accepted in the field of oil matching or

oil fingerprinting, we now turn to a consideration of whether

this mode of scientific analysis is properly transferable to

the samples taken in the instant case. We hold that it is.

Appellant argues that gas chromatograph/FID/FPD

analysis is not a generally accepted method of analyzing

sewer samples. This argument is wide of the mark, how-

ever, because, as the experts in this case testified, the oil

with which the PCL bottoms was mixed is the substance

that was analyzed. We see no significant difference, and

appellant has presented none, between analyzing oil samples

taken from the sewer and analyzing oil samples taken from

some other source. Non-petroleum elements, whether they

be in the sewer or elsewhere in the environmnt, are irrele-

vant to the comparison of oil samples. In some cases, the

non-petroleum elements in the samples enhance the relia-

bility of the conclusion that two samples match, but nothing

in the record indicates that the non-petroleum elements

detract in any way from the reliability of the analysis of

the oil samples. Thus, we hold that the expert testimony

introduced in this case satisfies the four-part Brown test

for admissibiilty.

IV.

Having determined that the trial court did not err when

it admitted expert and grand jury testimony, we now turn

to a consideration of appellant’s contention that the evidence

introduced at trial was insufficient to support a verdict of

guilt. When considering a challenge to the sufficiency of

the evidence, we must view the totality of evidence, along

with all favorable inferences drawn therefrom, in the light

most favorable to the government. United States v. Green,

548 F. 2d 1261, 1266 (6th Cir. 1977). When considered

thusly, it is clear that sufficient evidence was presented to

the jury to support its verdict of guilt in the instant case.

Evidence introduced at trial placed appellant, as the

alter ego of KLR, in the exclusive chain of possession of

PCL bottoms. Eyewitnesses saw him at the dump site on

numerous occasions with silver or chrome colored tankers.

The inference is clear that these were Chem-Dyne tankers.

He was seen washing these tankers out, and on some occa-

sions a hose was seen extending from the tankers into the

sewer. This evidence alone would seem to adequately

support a verdict of guilt. In addition, however, a sub-

stantial amount of convincing expert testimony was intro-

duced. Thus, there was abundant evidence presented to

the jury that supports its verdict.

The court has carefully considered the other issues pre-

sented on this appeal and finds them without merit. <Ac-

cordingly, the judgment of conviction of appellant for viola-

tions of the Federal Water Pollution and Control Act is

AFFIRMED.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-5339

Unirep States or America, - - Plaintiff-Appellee,

Donatp E, Distuzrn, - - - Defendant-Appellant.

ORDER — Filed March 31, 1981

Before: Epwarps, Chief Circuit Judge; Brown and Ken-

nepy, Circuit Judges.

On receipt and consideration of a petition for rehearing

and suggestion for rehearing en banc in the above styled

case; and

No judge in active service in this court having moved

for rehearing en bane and the motion therefore having

been referred to the panel which heard the case; and

The panel having noted nothing of substance in said

motion for rehearing which had not been carefully con-

sidered before issuance of the court’s opinion;

Now, therefore, it is Ordered that the motion for re-

hearing be and the same is hereby denied.

Entered by Order of the Court.

(s) John P. Hehman, Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-5339

. Unrrep States or America, - - Plaintiff-Appellee,

Donatp E. Distuzr, - - - #£Defendant-Appellant.

ORDER STAYING MANDATE—Filed April 22, 1981

OrpereD, That motion to stay mandate herein pending

application to the Supreme Court for writ of certiorari is

hereby granted and the mandate is stayed for thirty days

from this date; provided that, if within such thirty days,

the applicant shall file with the Clerk of this Court the

certificate of the Clerk of the Supreme Court that the

certiorari petition, record, and brief have been filed, the

stay shall continue until the final disposition of the case

by the Supreme Court. Unless this condition is complied

with within such thirty days or any extension thereof made

by the Court or any judge thereof, or if the condition is

complied with, then upon the filing of copy of an order

denying the writ applied for, the mandate shall issue.

Entered by Order of the Court.

(s) John P. Hehman, Clerk

APPENDIX D

STATUTORY PROVISIONS

18 U.S.C. §3500. Demands for production of statements

and reports of witnesses

(a) In any criminal prosecution brought by the United

States, no statement or report in the possession of the

United States which was made by a Government witness or

prospective Government witness (other than the defendant)

shall be the subject of subpena, discovery, or inspection until

said witness has testified on direct examination in the trial

of the case.

(b) After a witness called by the United States has testified

on direct examination, the court shall, on motion of the de-

fendant, order the United States to produce any statement

(as hereinafter defined) of the witness in the possession of

the United States which relates to the subject matter as to

which the witness has testified. If the entire contents of

any such statement relate to the subject matter of the testi-

mony of the witness, the court shall order it to be delivered

directly to the defendant for his examination and use.

to be produced under this section contains matter which

does not relate to the subject matter of the testimony of the

witness, the court shall order the United States to deliver

such statement for the inspection of the court in camera.

Upon such delivery the court shall excise the portions of

such statement which do not relate to the subject matter

of the testimony of the witness. With such material ex-

cised, the court shall then direct delivery of such statement

to the defendant for his use. If, pursuant to such pro-

cedure, any portion of such statement is withheld from the

defendant and the defendant objects to such withholding,

and the trial is continued to an adjudication of the guilt of

the defendant, the entire text of such statement shall be

preserved by the United States and, in the event the de-

fendant appeals, shall be made available to the appellate

court for the purpose of determining the correctness of the

ruling of the trial judge. Whenever any statement is de-

livered to a defendant pursuant to this section, the court

in its discretion, upon application of said defendant, may

recess proceedings in the trial for such time as it may de-

termine to be reasonably required for the examination of

such statement by said defendant and his preparation for

its use in the trial.

(d) If the United States elects not to comply with an order

of the court under subsection (b) or (c) hereof to deliver

to the defendant any such statement, or such portion thereof

as the court may direct, the court shall strike from the

record the testimony of the witness, and the trial shall pro-

ceed unless the court in its discretion shall determine that

the interests of justice require that a mistrial be declared.

(e) The term “statement”, as used in subsections (b), (c),

and (d) of this section in relation to any witness called by

the United States, means—

(1) a written statement made by said witness and signed

or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other re-

cording, or a transcription thereof, which is a substan-

tially verbatim recital of an oral statement made by said

witness and recorded contemporaneously with the making

of such oral statement; or

(3) a statement, however taken or recorded, or a tran-

scription thereof, if any, made by said witness to a grand

jury.

33 U.S.C. §1311. Effluent limitations

(a) Illegality of pollutant discharges except in compliance

with law. Except as in compliance with this section and

sections 302, 306, 307, 318, 402, and 404 of this Act [33 USCS

§§1312, 1316, 1317, 1328, 1342, 1344], the discharge of any

pollutant by any person shall be unlawful.

(b) ‘Timetable for achievement of objectives. In order to

carry out the objective of this Act there shall be achieved—

(1) (A) not later than July 1, 1977, effluent. limitations for

point sources, other than publicly owned treatment

works, (i) which shall require the application of the

best praticable control technology currently available

as defined by the Administrator pursuant to section

304(b) of this Act [33 USCS 4 1314(b)], or (ii) in the

case of a discharge into a publicly owned treatment

works which meets the requirements of subparagraph

(B) of this paragraph, which shall require compliance

with any applicable pretreatment requirements and

any requirements under section 307 of this Act [33

USCS § 1317]; and

(B) for publicly owned treatment works in existence

on July 1, 1977, or approved pursuant to section 203

of this Act [33 USCS § 1283] prior to June 30, 1974

(for which construction must be completed within

four years of approval), effluent limitations based

upon secondary treatment as defined by the Adminis-

trator pursuant to section 304(d)(1) of this Act [33

USCS § 1314(d)(1)]; or,

limitation, including those necessary to meet water

quality standards, treatment standards, or schedules

of compliance, established pursuant to any State law

or regulations (under authority preserved by section

510 [83 USCS § 1370]) or any other Federal law or

regulation, or required to implement any applicable

water quality standard established pursuant to this

Act.

(2)(A) for pollutants identified in subparagraphs (C),

(D), and (F) of this paragraph, effluent limitations

for categories and classes of point sources, other than

publicly owned treatment works, which (i) shall re-

quire application of the best available technology

economically achievable for such category or class,

which will result in reasonable further progress to-

ward the national goal of eliminating the discharge

of all pollutants, as determined in accordance with

regulations issued by the Administrator pursuant to

section 304(b) (2) of this Act [833 USCS § 1314(b) (2)],

which such effluent limitations shall require the elim-

ination of discharges of all pollutants if the Admin-

istrator finds, on the basis of information available

to him (including information developed pursuant to

section 315 [33 USCS § 1325]), that such elimination

is technicologically and economically achievable for a

category or class of point sources as determined in

accordance with regulations issued by the Adminis-

trator pursuant to section 304(b)(2) of this Act [33

USCS § 1314(b)(2)], or (ii) in the case of the intro-

duction of a pollutant into a publicly owned treatment

works which meets the requirements of subparagraph

(B) of this paragraph, shall require compliance with

any applicable pretreatment requirements and any

other requirement under section 307 of this Act [33

USCS § 1317];

(B) not later than July 1, 1983, compliance by all

publicly owned treatment works with the require-

ments set forth in section 201(g)(2)(A) of this Act

[33 USCS § 1281(g)(2)(A)];

toxic pollutants referred to in table 1 of Committee

Print Numbered 95-30 of the Committee on Public

Works and Transportation of the House of Represen-

tatives compliance with effluent limitations in accord-

ance with subparagraph (A) of the paragraph;

(D) for all toxic pollutants listed under paragraph (1)

of subsection (a) of section 307 of this Act [33 USCS

§ 1317(a)] which are not referred to in subparagraph

tations in accordance with subparagraph (A) of this

paragraph not later than three years after the date

such limitations are established;

(E) not later than July 1, 1984, effluent limitations

for categories and classes of point sources, other than

publicly owned treatment works, which in the case of

pollutants identified pursuant to section 304(a) (4) of

this Act [33 USCS § 1314(a) (4)] shall require applica-

tion of the best conventional pollutant control tech-

nology as determined in accordance with regulations

issued by the Administrator pursuant to section 304

(b)(4) of this Act [83 USCS § 1314(b)(4)]; and

(F) for all pollutants (other than those subject to

subparagraphs (C), (D), or (E) of this paragraph)

compliance with effluent limitations in accordance

with subparagraph (A) of this paragraph not later

than 3 years after the date such limitations are estab-

lished, or not later than July 1, 1984, whichever is

later, but in no case later than July 1, 1987.

modify the requirements of subsection (b)(2)(A) of this

section with respect to any point source for which a permit

application is filed after July 1, 1977, upon a showing by

the owner or operator of such point source satisfactory to

the Administrator that such modified requirements (1) will

represent the maximum use of technology within the eco-

nomic capability of the owner or operator; and (2) will re-

sult in reasonable further progress toward the elimination

of the discharge of pollutants.

(d) Review and revision of effluent limitations. Any ef-

fluent limitation required by paragraph (2) of subsection

(b) of this section shall be reviewed at least every five years

and, if appropriate, revised pursuant to the procedure estab-

lished under such paragraph.

(e) All point discharge source application of effluent limi-

tations. Effluent limitations established pursuant to this

section or section 302 of this Act [33 USCS § 1312] shall be

applied to all point sources of discharge of pollutants in

accordance with the provisions of this Act.

(f) Illegality of discharge of radiological, chemical, or bio-

logical warfare agents or high-level radioactive waste. Not-

withstanding any other provisions of this Act it shall be

unlawful to discharge any radiological, chemical, or bio-

logical warfare or high-level radioactive waste into the

navigable waters.

(g) Waiver for certain pollutants. (1) The Administrator,

with the concurrence of the State, shall modify the re-

quirements of subsection (b)(2)(A) of this section with

respect to the discharge of any pollutant (other than

pollutants identified pursuant to section 304(a) (4) of this

Act [33 USCS § 1314(a)(4)], toxic pollutants subject to

section 307(a) of this Act [33 USCS § 1317(a)], and the

thermal component of discharges) from any point source

upon a showing by the owner or operator of such point

source satisfactory to the Administrator that—

(A) such modified requirements will result at a mini-

mum in compliance with the requirements of subsec-

tion (b)(1)(A) or (C) of this section, whichever is

applicable;

(B) such modified requirements will not result in any

additional requirements on any other point or non-

point source; and

raent or maintenance of that water quality which shall

assure protection of public water supplies, and the pro-

tection and propagation of a balanced population of

shellfish, fish, and wildlife, and allow recreational ac-

tivities, in and on the water and such modification will

not result in the discharge of pollutants in quantities

which may reasonably be anticipated to pose an un-

acceptable risk to human health or the environment be-

cause of bioaccumulation, persistency in the environ-

ment, acute toxicity, chronic toxicity (including car-

cinogenicity, mutagenicity or teratogenicity), or syer-

gistic propensities.

(2) If an owner or operator of a point source applies for

a modification under this subsection with respect to the

discharge of any pollutant, such owner or operator shall

be eligible to apply for modification under susbection (c)

of this section with respect to such pollutant only during

the same time period as he is eligible to apply for a modi-

fication under this subsection.

(h) Modification of secondary treatment requirements. The

Administrator, with the concurrence of the State, may issue

a permit under section 402 [33 USCS § 1342] which modifies

the requirements of subsection (b)(1)(B) of this section

with respect to the discharge of any pollutant in an existing

discharge from a publicly owned treatment works into

marine waters, if the applicant demonstrates to the satis-

faction of the Administrator that—

(1) there is an applicable water quality standard specific

to the pollutant for which the modification is requested,

which has been identified under section 304(a) (6) of this

Act [33 USCS § 1314(a) (6)];

(2) such modified requirements will not interfere with

the attainment or maintenance of that water quality

which assures protection of public water supplies and the

protection and propagation of a balanced, indigenous

population of shellfish, fish and wildlife, and allows rec-

reational activities, in and on the water;

(3) the applicant has established a system for monitor-

ing the impact of such discharge on a representative

sample of aquatic biota, to the extent practicable;

(4) such modified requirements will not result in any

additional requirements on any other point or nonpoint

source;

(5) all applicable pretreatment requirements for sources

introducing waste into such treatment works will be

enforced;

(6) to the extent practicable, the applicant has estab-

lished a schedule of activities designed to eliminate the

entrance of toxic pollutants from nonindustrial sources

into such treatment works;

(7) there will be no new or substantially increased dis-

charges from the point source of the pollutant to which

the modification applies above that volume of discharge

specified in the permit;

(8) any funds available to the owner of such treatment

works under title II of this Act [33 USCS §§ 1281 et seq.]

will be used to achieve the degree of effluent reduction

required by section 201(b) and (g)(2)(A) [383 USCS

§ 1281(b), (g)(2)(A)] or to carry out the requirements

of this subsection.

For the purposes of this subsection the phrase “the dis-

charge of any pollutant into marine waters” refers to a

discharge into deep waters of the territorial sea or the

waters of the contiguous zone, or into saline estuarine

waters where there is strong tidal movement and other hy-

drological and geological characteristics which the Ad-

ministrator determines necessary to allow compliance with

paragraph (2) of this subsection, and section 101(a) (2)

of this Act [83 USCS § 1251(a)(2)].

(i) Municipal time extensions. (1) Where construction is

required in order for a planned or existing publicly owned

treatment works to achieve limitations under subsection

(b)(1)(B) or (b)(1)(C) of this section, but (A) con-

struction cannot be completed within the time required

in such subsection, or (B) the United States has failed

to make financial assistance under this Act available in

time to achieve such limitations by the time specified in

such subsection, the owner or operator of such treatment

works may request the Administrator (or if appropriate the

State) to issue a permit pursuant to section 402 of this Act

[83 USCS § 1342] or to modify a permit issued pursuant

to that section to extend such time for compliance. Any

such request shall be filed with the Administrator (or if

appropriate the State) within 180 days after the date of

enactment of this subsection [enacted Dec. 27, 1977]. The

Administrator (or if appropriate the State) may grant

such request and issue or modify such a permit, which

shall contain a schedule of compliance for the publicly

owned treatment works based on the earliest date by

which such financial assistance will be available from the

United States and construction can be completed, but in

no event later than July 1, 1983, and shall contain such

other terms and conditions, including those necessary to

carry out subsection (b) through (g) or section 201 of

this Act [33 USCS § 1281(b)-(g)], section 307 of this Act

[33 USCS § 1317], and such interim effluent limitations

applicable to that treatment works as the Administrator

determines are necessary to carry out the provisions of

this Act.

(2)(A) Where a point source (other than a publicly

owned treatment works) will not achieve the require-

ments of subsections (b)(1)(A) and (b)(1)(C) of this

section and—

(i) if a permit issued prior to July 1, 1977, to such

point source is based upon a discharge into a publicly

owned treatment works; or

(ii) if such point source (other than a publicly owned

treatment works) had before July 1, 1977, a contract

(enforceable against such point source) to discharge

into a publicly owned treatment works; or

(iii) if either an application made before July 1, 1977,

for a construction grant under this Act for a publicly

owned treatment works, or engineering or architec-

tural plans or working drawings made before July 1,

1977, for a publicly owned treatment works, show

that such point source was to discharge into such

vublicly owned treatment works,

anu such publicly owned treatment works is presently

unable to accept such discharge without construction,

and in the case of a discharge to an existing publicly

owned treaement works, such treatment works has an

extension pursuant to paragraph (1) of this subsection,

the owner or operator of such point source may request

the Administrator (or if appropriate the State) to issue

or modify such a permit pursuant to such section 402

[83 USCS § 1342] to extend such time for compliance.

Any such request shall be filed with the Administrator

(or if appropriate the State) within 180 days after the

date of enactment of this subsection [enacted Dee. 27,

1977] or the filing of a request by the appropriate

publicly owned treatment works under paragraph (1)

of this subsection, whichever is later. If the Adminis-

trator (or if appropriate the State) finds that the owner

or operator of such point source has acted in good faith,

he may grant such request and issue or modify such a

permit, which shall contain a schedule of compliance

for the point source to achieve the requirements of

subsections (b)(1)(A) and (C) of this section and shall

contain such other terms and conditions, including pre-

treatment and interim effluent limitations and water

conservation requirements applicable to that point

source, as the Administrator determines are necessary

to carry out the provisions of this Act.

(B) No time modification granted by the Adminis-

trator (or if appropriate the State) pursuant to para-

graph (2)(A) of this subsection shall extend beyond

the earliest date practicable for compliance or beyond

the date of any extension granted to the appropriate

publicly owned treatment works pursuant to paragr ph

(1) of this subsection, but in no event shall it extend

beyond July 1, 1983; and no such time modification

shall be granted unless (i) the publicly owned treat-

ment works will be in operation and available to the

point source before July 1, 1983, and will meet the re-

quirements of subsections (b)(1)(B) and (C) of this

section after receiving the discharge from that point

source; and (ii) the point source and the publicly

owned treatment works have entered into an enforce-

able contract requiring the point source to discharge

into the publicly owned treatment works, the owner or

operator of such point source to pay the costs required

under section 204 of this Act [83 USCS § 1284], and

the publicly owned treatment works to accept the dis-

charge from the point source; and (iii) the permit for

such point source requires that point source to meet all

requirements under section 307(a) and (b) [83 USCS

§ 1317(a), (b)] during the period of such time modi-

fication.

(j) Modification procedures. (1) Any application filed

under this section for a modification of the provisions

of—

(A) subsection (b)(1)(B) under subsection (h) of this

section shall be filed not later than 270 days after the

date of enactment of the Clean Water Act of 1977 [en-

acted Dec. 27, 1977];

(B) subsection (b)(2)(A) as it applies to pollutants

identified in subsection (b)(2)(I*) shall be filed not

later than 270 days after the date of promulgation of

an applicable effluent guideline under section 304 [33

USCS § 1314] or not later than 270 days after the date

of enactment of the Clean Water Act of 1977 [enacted

Dee. 27, 1977], whichever is later.

(2) Any application for a modification filed under sub-

section (g) of this section shall not operate to stay any

requirement under this Act, unless in the judgment of

the Administrator such a stay or the modification sought

will not result in the discharge of pollutants in quantities

which may reasonably be anticipated to pose an unaccept-

able risk to human health or the environment because of

bioaccumulation, persistency in the environment, acute

toxicity, chronic toxicity (including carcinogenicity,

mutagenicity, or jeratogenicity), or synergistic propen-

sities, and that there is a substantial likelihood that the

applicant will succeed on the merits of such application.

In the case of an application filed under subsection (g) of

this section, the Administrator may condition any stay

granted under this paragraph on requiring the filing of

a bond or other appropriate security to assure timely

compliance with the requirements from which a modifi-

cation is sought.

(k) Innovative Technology. In the case of any facility

subject to a permit under section 402 [33 USCS § 1342]

which proposes to comply with the requirements of sub-

section (b)(2)(A) of this section by replacing existing pro-

duction capacity with an innovative production process

which will result in an effluent reduction significantly

greater than that required by the limitation otherwise ap-

plicable to such facility and moves toward the national

goal of eliminating the discharge of all pollutants, or with

the installation of an innovative control technique that has

a substantial likelihood for enabling the facility to comply

with the applicable effluent limitation by achieving a sig-

nificantly greater effluent reduction than that required by

the applicable effluent limitation and moves toward the

national goal of eliminating the discharge of all pollutants,

or by achieving the required reduction with an innovative

system that has the potential for significantly lower costs

than the systems which have been determined by the Ad-

ministrator to be ecomonically achievable, the Adminis-

trator (or the State with an approved program under sec-

tion 402 [33 USCS § 1342], in consultation with the Ad-

ministrator) may establish a date for compliance under

subsection (b)(2)(A) of this section no later than July 1,

1987, if it is also determined that such innovative system

has the potential for industry-wide application.

(1) Toxic pollutants. The Administrator may not modify

any requirement of this section as it applies to any specific

pollutant which is on the toxic pollutant list under section

307(a)(1) of this Act [33 USCS § 1317(a)(1)].

33 U.S.C. § 1317. Toxic and pretreatment effluent standards

(a) Toxic pollutant list; revision; hearing; promulgation of

standards; effective date; consultation. (1) On and after

the date of enactment of the Clean Water Act of 1977

[enacted Dec. 27, 1977], the list of toxic pollutants or

combination of pollutants subject to this Act shall con-

sist of those toxic pollutants listed in table 1 of Com-

mittee Print Numbered 95-30 of the Committee on Public

Works and Transportation of the House of Representa-

tives, and the Administrator shall publish, not later

than the thirtieth day after the date of enactment of

the Clean Water Act of 1977 [enacted Dec. 27, 1977],

that list. From time to time thereafter, the Adminis-

trator may revise such list and the Administrator is

authorized to add to or remove from such list any pol-

lutant. The Administrator in publishing any revised

list, including the addition or removal of any pollutant

from such list, shall take into account toxicity of the

pollutant, its persistence, degradability, the usual or

potential presence of the affected organisms in any

waters, the importance of the affected organisms, and

the nature and extent of the effect of the toxic pollutant

on such organisms. A determination of the Adminis-

trator under this paragraph shall be final except that

if, on judicial review, such determination was based on

arbitrary and capricious action of the Administrator,

the Administrator shall make a redetermination.

(2) Each toxic pollutant listed in accordance with para-

graph (1) of this subsection shall be subject to effluent

limitations resulting from the application of the best

available technology economically achievable for the

applicable category or class of point sources established

in accordance with sections 301(b)(2)(A) and 304(b)

(2) of this Act [83 USCS §§ 1311(b)(2)(A), 1314(b)

(2)]. The Administrator, in his discretion, may publish

in the Federal Register a proposed effluent standard

(which may include a prohibition) establishing require-

ments for a toxic pollutant which, if an effluent limita-

tion is applicable to a class or category of point sources,

shall be applicable to such category or class only if such

standard imposes more stringent requirements. Such

published effluent standard (or prohibition) shall take

into account the toxicity of the pollutant, its persistence,

degradability, the usual or potential presence of the

affected organisms in any waters, the importance of the

affected organisms and the nature and extent of the

effect of the toxic pollutant on such organisms, and the

extent to which effective control is being or may be

achieved under other regulatory authority. The Admin-

istrator shall allow a period of not less than sixty days

following publication of any such proposed effluent

standard (or prohibition) for written comment by in-

terested persons on such proposed standard. In addi-

tion, if within thirty days of publication of any such

proposed effluent standard (or prohibition) any inter-

ested person so requests, the Administrator shall hold a

public hearing in connection therewith. Such a public

hearing shall provide an opportunity for oral and writ-

ten presentations, such cross-examinations as the Ad-

ministrator determines is appropriate on disputed issues

of material fact, and the transcription of a verbatim

record which shall be available to the public. After

consideration of such comments and any information

and material presented at any public hearing held on

such proposed standard or prohibition, the Administra-

tor shall promulgate such standard (or prohibition)

with such modification as the Administrator finds are

justified. Such promulgation by the Administrator

shall be made within two hundred and seventy days

after publication of proposed standard (or prohibition).

Such standard (or prohibition) shall be final except that

if, on judicial review, such standard was not based on

substantial evidence, the Administrator shall promul-

gate a revised standard. Effluent limitations shall be

established in accordance with sections 301(b)(2)(A)

and 304(b)(2) [83 USCS §$§ 1311(b)(2)(A), 1314(b)

(2)] for every toxic pollutant referred to in table 1 of

Committee Print Numbered 95-30 of the Committee on

Public Works and Transportation of the House of Rep-

resentatives as soon as practicable after the date of

enactment of the Clean Water Act of 1977 [enacted

Dec. 27, 1977], but no later than July 1, 1980. Such

effluent limitations or effluent standards (or prohibi-

tions) shall be established for every other toxic pollu-

tant listed under paragraph (1) of this subsection as

soon as practicable after it is so listed.

(3) Each such effluent standard (or prohibition) shall

be reviewed and, if appropriate, revised at least every

three years.

(4) Any effluent standard promulgated under this sec-

tion shall be at that level which the Administrator de-

termines provides an ample margin of safety.

(5) When proposing or promulgating any effluent

standard (or prohibition) under this section, the Ad-

ministrator shall designate the category or categories of

sources to which the effluent standard (or prohibition)

shall apply. Any disposal of dredged material may be

included in such a category of sources after consultation

with the Secretary of the Army.

(6) Any effluent standard (or prohibition) established

pursuant to this section shall take effect on such date or

dates as specified in the order promulgating such stand-

ard, but in no case, more than one year from the date of

such promulgation. If the Administrator determines

that compliance within one year from the date of pro-

mulgation is technologically infeasible for a category of

sources, the Administrator may establish the effective

date of the effluent standard (or prohibition) for such

category at the earliest date upon which compliance can

be feasibly attained by sources within such category,

but in no event more than three years after the date of

such promulgation.

(7) Prior to publishing any regulations pursuant to this

section the Administrator shall, to the maximum extent

practicable within the time provided, consult with ap-

propriate advisory committees, States, independent ex-

perts, and Federal departments and agencies.

(b) Pretreatment standards; hearing; promulgation; com-

pliance period; revision; application to State and local

laws. (1) The Administrator shall, within one hundred

and eighty days after the date of enactment of this title

[enacted Oct. 18, 1972] and from time to time thereafter.

publish proposed regulations establishing pretreatment

standards for introduction of pollutants into treatment

works (as defined in section 212 of this Act [33 USCS

§ 1292]) which are publicly owned for those pollutants

which are determined not to be susceptible to treatment

by such treatment works or which would interfere with

the operation of such treatment works. Not later than

ninety days after such publication, and after oppor-

tunity for public hearing, the Administrator shall pro-

mulgate such pretreatment standards. Pretreatment

standards under this subsection shall specify a time for

compliance not to exceed three years from the date of

promulgation and shall be established to prevent the

discharge of any pollutant through treatment works (as

defined in section 212 of this Act [33 USCS § 1292])

which are publicly owned, which pollutant interferes

with, passes through, or otherwise is incompatible with

such works. If, in the case of any toxic pollutant under

subsection (a) of this section introduced by a source into

a publicly owned treatment works, the treatment by

such works removes all or any part of such toxic pollu-

tant and the discharge from such works does not violate

that effluent limitation or standard which would be

applicable to such toxic pollutant if it were discharged

by such source other than through a publicly owned

treatment works, and does not prevent sludge use or

disposal by such works in accordance with section 405

of this Act [33 USCS § 1345], then the pretreatment re-

quirements for the sources actually discharging such

toxic pollutant into such publicly owned treatment

works may be revised by the owner or operator of such

works to reflect the removal of such toxic pollutant by

such works.

(2) The Administrator shall, from time to time, as con-

trol technology, processes, operating methods, or other

alternatives change, revise such standards following the

procedure established by this subsection for promulga-

tion of such standards.

(3) When proposing or promulgating any pretreatment

standard under this section, the Administrator shall

designate the category or categories of sources to which

such standard shall apply.

(4) Nothing in this subsection shall affect any pretreat-

ment requirement established by any State or local law

not in conflict with any pretreatment standard estab-

lished under this subsection.

‘c) New sources of pollutants into publicly owned treat-

ment works. In order to insure that any source intro-

ducing pollutants into a publicly owned treatment

works, which source would be a new source subject to

section 306 [33 USCS § 1316] if it were to discharge pol-

lutants, will not cause a violation of the effluent limita-

tions established for any such treatment works, the

Administrator shall promulgate pretreatment standards

for the category of such sources simultaneously with the

promulgation of standards of performance under section

306 [33 USCS § 1316] for the equivalent category of new

sources. Such pretreatment standards shall prevent the

discharge of any pollutant into such treatment works,

which pollutant may interfere with, pass through, or

otherwise be incompatible with such works.

(d) Operation in violation of standards unlawful. After the

effective date of any effluent standard or prohibition or

pretreatment standard promulgated under this section,

it shall be unlawful for any owner or operator of any

source to operate any source in violation of any such

effluent standard or prohibition or pretreatment stand-

ard.

33 U.S.C. § 1319. Enforcement

(a) State enforcement; compliance orders. (1) Whenever,

on the basis of any information available to him, the

Administrator finds that any person is in violation of

any condition or limitation which implements section

301, 302, 306, 307, 308, 318, or 405 of this Act [33 USCS

§ 1311, 1312, 1316, 1317, 1318, 1328, or 1345] in a permit

issued by a State under an approved permit program

under section 402 or 404 of this Act [33 USCS § 1342 or

1344], he shall proceed under his authority in para-

graph (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 noti-

fication the State has not commenced appropriate en-

64+

forcement action, the Administrator 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.

(2) Whenever, on the basis of information available to

him, the Administrator finds that violations of permit

conditions or limitations as set forth in paragraph (1)

of this subsection are so widespread that such viola-

tions appear to result from a failure of the State to

enforce such permit conditions or limitations effectively,

he shall so notify the State. If the Administrator finds

such failure extends beyond the thirtieth day after such

notice, he shall give public notice of such finding. Dur-

ing the period beginning with such public notice and

ending when such State satisfies the Administrator that

it will enforce such conditions and limitations (hereafter

referred to in this section as the period of “federally

assumed enforcement”), except where an extension has

been granted under paragraph (5) (B) of this subsection,

the Administrator shall enforce any permit condition or

limitation with respect to any person—

(A) by issuing an order to comply with such con-

dition or limitation, or

(B) by bringing a civil action under subsection (b)

of this section.

(3) Whenever on the basis of any information available

to him the Administrator finds that any person is in vio-

lation of section 301, 302, 306, 307, 308, 318, or 405 of

this Act [88 USCS § 1311, 1312, 1816, 1317, 1318, 1328,

or 1345], or is in violation of any permit condition or

limitation implementing any of such sections in a permit

issued under section 402 of this Act [83 USCS § 1342]

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

404 of this Act [33 USCS § 1344] 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.

(4) A copy of any order issued under this subsection

shall be sent immediately by the Administrator to the

State in which the violation occurs and other affected

States. In any case in which an order under this sub-

section (or notice to a violator under paragraph (1) of

this subsection) is issued to a corporation, a copy of

such order (or notice) shall be served on any appro-

priate corporate officers. An order issued under this

subsection relating to a violation of section 308 of this

Act [83 USCS § 1318] shall not take effect until the

person to whom it is issued has had an opportunity to

confer with the Administrator concerning the alleged

violation.

(5)(A) Any order issued under this subsection shall be

by personal service, shall state with reasonable spec-

ificity the nature of the violation, and shall specify

a time for compliance not to exceed thirty days in the

case of a violation of an interim compliance schedule

or operation and maintenance requirement and not to

exceed a time the Administrator determines to be

reasonable in the case of a violation of a final dead-

line, taking into account the seriousness of the viola-

tion and any good faith efforts to comply with ap-

plicable requirements,

(B) The Administrator may, if he determines (i)

that any person who is a violator of, or any person

who is otherwise not in compliance with, the time

requiienents under this Act or in any permit issued

under this Act, has acted in good faith, and has made

a commitment (in the form of contracts or other

securities) of necessary resources to achieve com-

pliance by the earliest possible date after July 1,

1977, but not later than April 1, 1979; (ii) that any

extension under this provision will not result in the

imposition of any additional controls on any other

point or nonpoint source; (iii) that an application

for a permit under section 402 of this Act [88 USCS

§ 1342] was filed for such person prior to December

81, 1974; and (iv) that the facilities necessary for

compliance with such requirements are under con-

struction, grant an extension of the date referred to

in section 301(b)(1)(A) [83 USOS § 1811(b) (1) (A)]

to a date which will achieve compliance at the ear-

liest time possible but not later than April 1, 1979.

(6) Whenever, on the basis of information available to

him, the Administrator finds (A) that any person is in

violation of section 301(b)(1)(A) or (C) of this Act

[83 USCS § 1811(b)(1)(A), (C)], (B) that such person

cannot meet the requirements for a time extension under

section 301(i)(2) of this Act [83 USCS § 1811(i)(2)],

and (C) that the most expeditious and appropriate

means of compliance with this Act by such person is to

discharge into a publicly owned treatment works, then,

upon request of such person, the Administrator may

issue an order requiring such person to comply with this

Act at the earliest date practicable, but not later than

July 1, 1983, by discharging into a publicly owned treat-

ment works if such works concur with such order, Such

order shall include a schedule of compliance.

(b) Civil actions. The Administrator is authorized to com-

mence 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 sub-

section 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 com-

pliance. Notice of the commencement of such action shall

be given immediately to the appropriate State.

negligently violates section 301, 302, 306, 307, or 308 of

this Act [83 USCS § 1311, 1312, 1316, 1317, or 1318], or

any permit condition or limitation implementing any of

such sections in a permit issued under section 402 of this

Act [33 USCS § 1342] by the Administrator or by a

State or in a permit issued under section 404 of this Act

[33 USCS § 1344] 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 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 imprison-

ment for not more than two years, or by both.

(2) Any person who knowingly makes any false state-

ment, representation, or certification in any application,

record, report, plan, or other document filed or required

to be maintained under this Act or who falsifies, tampers

with, or knowingly renders inaccurate any monitoring

device or method required to be maintained under this

Act, shall upon conviction, be punished by a fine of not

more than $10,000, or by imprisonment for not more

than six months, or by both.

(2. #or the purposes of this subsection, the term “per-

son” shall mean, in addition to the definition contained

in section 502(5) of this Act [33 USCS § 1362(5)], any

responsible corporate officer.

(d) Civil penalties. Any person who violates section 301,

302, 306, 307, 308, 318, or 405 of this Act [33 USCS § 1311,

1312, 1316, 1317, 1318, 1328, or 1345], or any permit condi-

tion or limitation implementing any of such sections in a

permit issued under section 402 of this Act [33 USCS

§ 1342] by the Administrator, or by a State, or in a permit

issued under section 404 of this Act [33 USCS § 1344] by a

State, and any person who violates any order issued by the

Administrator under subsection (a) of this section, shall be

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

such violation.

(e) State liability for judgments and expenses. Whenever

a municipality is a party to a civil action brought by the

United States under this section, the State in which such

municipality is located shall be joined as a party. Such

State shall be liable for payment of any judgment, or any

expenses incurred as a result of complying with any judg-

ment, entered against the municipality in such action to the

extent that the laws of that State prevent the municipality

from raising revenues needed to comply with such judg-

ment.

(f) Wrongful introduction of pollutants into treatments

works. Whenever, on the basis of any information avail-

able to him, the Administrator finds that an owner or

operator of any source is introducing a pollutant into a

treatment works in violation of subsection (d) of section

307 [33 USCS § 1317(d)], the Administrator may notify the

owner or operator of such treatment works and the State

of such violation. If the owner or operator of the treatment

works does not commence appropriate enforcement action

within 30 days of the date of such notification, the Admin-

istrator may commence a civil action for appropriate relief,

including but not limited to, a permanent or temporary

injunction, against the owner or operator of such treatment

works. In any such civil action the Administrator shall join

the owner or operator of such source as a party to the action.

Such action shall be brought in the district court of the

United States in the district in which the treatment works

is located. Such court shall have jurisdiction to restrain

such violation and to require the owner or operator of the

treatment works and the owner or operator of the source to

take such action as may be necessary to come into compli-

ance with this Act. Notice of commencement of any such

action shall be given to the State. Nothing in this subsec-

tion shall be construed to limit or prohibit any other au-

thority the Administrator may have under this Act.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.