Opposition — Lanigan v. United States

No. 82-1635

In the Supreme Court of the ANDER L. STFVA:

OCTOBER TERM, 1982

oe creme j

PAUL A. LANIGAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

REx E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

DAVID C. SHILTON

RAYMOND W. MUSHAL

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the district court properly admitted evi-

dence obtained by federal and state personnel either

with petitioner’s consent or from locations outside peti-

tioner’s landfill.

2. Whether the district court properly admitted anal-

yses of leachate samples, nothwithstanding that the

samples themselves were no longer available, when the

deterioration of the samples would have prevented use-

ful analysis by petitioner.

3. Whether the Resource Conservation and Recovery

Act precludes criminal charges under the Federal

Water Pollution Control Act and the Refuse Act for the

discharge of pollutants from a landfill into navigable

waters of the United States.

4. Whether the Federal Water Pollution Control Act

and the Refuse Act were properly applied to petitioner

where evidence showed that the leachate discharged

from the landfill could adversely alter the biological in-

tegrity of the affected waterways.

5. Whether the district court properly instructed the

jury that the defendant could be found guilty of violat-

ing the Federal Water Pollution Control Act on the ba-

sis of negligence.

6. Whether the district court properly instructed the

jury that the defendant could be found guilty of violat-

ing the Refuse Act on the basis of his duties and re-

sponsibilities as a corporate officer involved in the oper-

ation of a landfill.

7. Whether the district court properly admitted the

testimony of a government expert regarding a water

balance analysis he performed on petitioner’s landfill.

(I)

TABLE OF CONTENTS

INE sudvc wie yk pee aeirnsari ans tases

POP ETTET CTP err rere oer errr ere

DT ia laictavcia wath & an k 9th NTC Uae re

em arere ryry rire ere re

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TABLE OF AUTHORITIES

Cases:

Almeida-Sanchez v. United States, 413

cba ene 60 nea e aed Oe eeE tek hae

Brady v. Maryland, 373 U.S. &8..........

Donovan v. Dewey, 452 U.S. 594 .........

Lewis v. United States, 445 U.S. 55.......

Rakas v. Illinois, 489 U.S. 128...........

Rawlings v. Kentucky, 448 U.S. 98 .......

Schneckloth v. Bustamonte, 412 U.S. 218...

Sierra Club vy. Abston Construction Co.,

ee a Os Wistce's ca ea eee wees cab yeh

United States v. American Cyanamid Co.,

354 F. Supp. 1202, aff’d, 480 F.2d 1132 ..

United States v. Baller, 519 F.2d 463, cert.

ORR, Ge Ui BONE cee icecceciccocee

United States v. Batchelder, 442 U.S. 114 .

United States v. Biswell, 406 U.S. 311 ....

United States v. Brady, 595 }'.2d 359, cert.

Oe Gide EE a bac bee eeics acess

United States v. Dotterweich, 320 U.S. 277

United States v. Earth Sciences, Inc., 599

of 3 BURSA Be Bei es Bmy oc gee oe

(111)

10

13

IV

Cases—Continued Page

United States v. Frezzo Brothers, Inc., 602

F.2d 1123, cert. denied, 444 U.S. 1074... 12

United States v. Georgetown University,

SOR F. DO. GD ib icdsiavivecersacrercd 13

United States v. Hendershot, 614 F.2d 648. 14

United States v. Herndon, 536 F.2d 1027 .. 9

United States v. Interlake Steel Corp., 297

a Sh Perey rr rrr ee 13

United States v. Loud Hawk, 628 F.2d

1139, cert. denied, 445 U.S. 917......... 9

United States v. Luschen, 614 F.2d 1164,

cert. denied, 446 U.S. 989 ..........e ee 14

United States v. Mackin Const. Co., 388 F.

a ee eer rr 13

United States v. McDaniel, 538 F.2d 408 .. 14

United States v. Oxford Royal Mushroom

Products, Inc., 487 F. Supp. 852 ........ 12

United States v. Park, 421 U.S. 658 ...... 13

United States v. Picariello, 568 F.2d 222 .. 9

United States v. United States Steel Corp.,

328 F. Supp. 354, aff’d, 482 F.2d 439,

cert. denied, 414 U.S. 909 .............. 13

United States v. Watson, 423 U.S. 411 .... 8

United States v. White Fuel Corp., 498

F POEs vcckeccnvasts0an eae eee 13

United States v. Wiesenfeld Warehouse

Cai, SHO Ui OP iscicinhsetesae eee 13

United States v. Williams, 583 F.2d 1194,

cert. denied, 439 U.S. 1117 ............. 14

Statutes and rules:

Refuse Act of 1899:

Sr

EEN eh Ua se 64 oes 000s

Federal Water Pollution Control Act,

U.S.C. (& Supp. V) 1251 et seq.:

33 U

33 U.S.

DMs MORECRD coc svccccececcess

re

C. (& Supp. V) 1319%(¢) .....

Se EME ao iivisc sees ecees

S.C. (Supp. V) 1362(6) .......

sy BEE) os cvescevecevurs

33 U.S.C. (Supp. V) 1362(14) ......

Cs MONOD sss svivvesccece

Resource Conservation and Recovery Act of

“*#e

1976, 42 U.S.C. (& Supp. V) 6901 ef seq.

i ere

42 U.S.C. (& Supp. V) 6903 .......

i

RMD soc cccccesencccce

42 U.S.C. (Supp. V) 6928(d) .......

Fed. R. Evid.:

aay des ks 0-00.0.0000.0

Miscellaneous:

3. J. Weinstein & M. Berger, Weinstein’s

CS

14

In the Supreme Court of the Aiited States

OCTOBER TERM, 1982

No. 82-1635

PAUL A. LANIGAN, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet.

App. A1-A3) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet App. A3)

was entered on January 7, 1983. A petition for rehear-

ing was denied on February 3, 1983 (Pet. App. A4).

The petition for a writ of certiorari was filed on April 4,

1983. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a four-week jury trial in the United States

District Court for the Eastern District of Pennsylvania,

petitioner was convicted on 10 counts under the Feder-

al Water Pollution Control Act (“FWPCA” or “Clean

Water Act”), 33 U.S.C. (& Supp. V) 1811(a) and

1319(c)(1), and five counts under the Refuse Act of

1899, 33 U.S.C. 407 and 411, in connection with the dis-

(1)

2

charge of the pollutant leachate! into navigable waters

of the United States without a permit. Petitioner was

sentenced to a one-year term of imprisonment, a three-

year term of probation, and a fine of $200,000 (Pet.

App. A5-A&). The court of appeals affirmed (id. at

Al-A3).

1. The evidence at trial showed that in 1974 petition-

er became the president, part owner, and chief opera-

tor of Moyer’s Landfill, Inc., a Pennsylvania corpora-

tion engaged in the business of operating a waste dump

in Montgomery County, Pennsylvania (2/8/82 Tr. 51-52;

2/12/82 Tr. 174-182; 2/22/82 Tr. 23).2 The following year

he applied to the Pennsylvania Department of Environ-

mental Resources (DER) for a solid waste disposal per-

mit allowing him to operate Moyer’s Landfill as a solid

waste disposal facility (2/12/82 Tr. 71-72) and for a

water quality management permit (2/8/82 Tr. 43-78).

The latter application included a leachate collection sys-

tem at the landfill, which consisted of basins or

impoundments to collect the leachate and pump it back

into the landfill. The collection system was intended to

prevent the discharge of leachate into two waterways

adjacent to the landfill (¢d. at 57-71, 80-81, 102). A Pol-

lution Incident Prevention Plan (PIPP) accompanying

petitioner’s application for a water quality management

permit described the measures petitioner was required

to take to prevent leachate discharges. The PIPP in-

cluded adequate maintenance and daily inspections of

the leachate management system. /bid. In addition, pe-

titioner also was required to haul leachate from the

landfill to a nearby municipal wastewater treatment fa-

1 Leachate is the contaminated liquid created by decomposi-

tion at a landfill and by rain water percolating through the

landfill.

2“Tr,,” “S-1,” and “S-II,” prefixed by a date, refer to the

transcripts of the trial and the two suppression hearings,

respectively.

3

cility, which allowed him to dispose of leachate at no

cost (id. at 60, 76-77; 2/10/82 Tr. 139-143, 149).

In November 1976 petitioner received a water quali-

ty management permit and a solid waste disposal per-

mit from DER (2/8/82 Tr. 76-90). The DER permits did

not allow the discharge of leachate, and at no time did

petitioner obtain a permit from the Environmental Pro-

tection Agency (EPA) allowing him to discharge any

leachate (2/10/82 Tr. 139-143).

2a. At the pretrial hearing on petitioner’s motion to

suppress evidence obtained by EPA and DER person-

nel on visits to Moyer’s Landfill and the vicinity, the

government presented testimony showing that the col-

lection basins near the west and south sides of the

landfill were not located on the landfill property itself

(12/14/81 S-I 1.3-1.9). Leachate samples and _ photo-

graphs obtained by EPA personnel from areas outside

the landfill were offered to prove the leachate dis-

charges alleged in various counts of the indictment (id.

at 1.86-1.57, 1.111-1.114; 12/16/81 S-I 3.8-3.16; 2/22/82

Tr. 40-53). Evidence obtained. by DER employees from

such locations was offered to prove the leachate dis-

charges alleged in other counts (12/15/81 S-I 2.4-2.7,

2.63-2.75). The district court ruled that all evidence ob-

tained outside the landfill property would be admissible

(2/4/82 S-II 2-5).

b. Evidence from the landfill property itself, includ-

ing leachate samples, photographs, and statments by

petitioner, was obtained by EPA employees on Novem-

ber 28, 1978, and January 9, 1980 (12/14/81 S-I

1.45-1.50, 1.112-1.113). Those leachate samples and

photographs were not offered to prove a particular dis-

charge alleged in the indictment, but rather were intro-

duced to prove that leachate was a pollutant.

On the two occasions when EPA employees actually

entered the landfill property, they properly identified

themselves to petitioner and explained the purpose of

d

their visits (12/14/81 S-I 1.37-1.46, 1.114). Wher they

asked petitioner for permission to enter the landfill

premises, he readily agreed. /bid. At no time was peti-

tioner threatened or coerced in any way, and he did not

object to the presence of the EPA representatives

(ibid.; 12/16/81 S-I 3.56-3.59).

On January 9, 1980, petitioner was asked by an EPA

engineer whether he hauled leachate from the landfill to

the municipal sewage treatment plant. Petitioner re-

sponded that he never hauled any leachate because it

was not necessary (12/14/81 S-I 1.47-1.49). Petitioner

was in his office at the landfill during this conversation;

he was not in custody (12/16/81 S-I 3.56-3.59) and did

not show a hesitancy or unwillingness to speak with the

EPA engineer (12/14/81 S-I 1.50).

In addition, two DER employees visited the landfill

area in 1980 to make observations and take leachate

samples from the landfill property itself (12/14/81 S-I

1.50; 2/8/82 Tr. 40; 2/10/82 Tr. 170). One of these DER

employees explained that from February until July of

1980 he was responsible for periodically inspecting

Moyer’s Landfill and other facilities to determine if

they were being operated in compliance with their

DER permits (12/15/81 S-I 2.63-2.75). Each time the

DER inspector visited Moyer’s Landfill he properly

identified himself and informed petitioner or one of pe-

titioner’s employees that he was there to conduct an in-

spection. /bid. During those inspections the DER em-

ployee examined the landfill and took leachate samples

when necessary. /bid. Petitioner never objected to any

of these inspections or attempted to keep the DER

agent off the landfill premises (id. at 2.65). Two

other DER solid waste specialists who had inspected

the landfill also described how they conducted their in-

spections and stated that petitioner never objected to

their inspections or tried to keep them off his propety

(id. at 2.46-2.48, 2.95, 2.98-2.100).

5

At the conclusion of the suppression hearing the dis-

trict court found that petitioner had consented to the

visits by the EPA and DER personnel who entered the

landfill property (2/4/82 S-II 6-12). The court also ruled

that the defendant’s statements were admissible. /bid.

Furthermore, the district court found that DER per-

sonnel were not required to obtain search warrants be-

cause Moyer’s Landfill was subject to regular inspec-

tions by DER under state law and operated in an

industry heavily regulated by state authorities. /bid.

3. At trial the government presented the testimony

of several witnesses, including private citizens, EPA

personnel, and DER employees, who observed leachate

discharges in 1978 and 1980 into the waters described in

the indictment (2/8/82 Tr. 40-201; 2/9/82 Tr. 16-72,

178-215; 2/10/82 Tr. 16-136, 170; 2/22/82 Tr. 27-81). In

addition to describing their observations, some of those

witnesses also identified photographs of what they saw

(2/8/82 Tr. 40, 178; 2/9/82 Tr. 26, 178; 2/10/82 Tr. 86, 99,

170; 2/22/82 Tr. 27). On some occasions the witnesses ob-

tained samples of leachate that later were analyzed for

their chemical content (2/8/82 Tr. 40; 2/10/82 Tr. 86, 99,

170).

The witnesses also described the poor condition of

the leachate collection basin near one of the waterways.

Pipes that were supposed to carry the leachate from

the basin were often disconnected, and the pumps were

frequently inoperable (2/8/82 Tr. 103; 2/9/82 Tr. 43;

2/22/82 Tr. 34, 43). A hole in the side of that basin in

1978 and 1980 allowed leachate to escape into a creek

(2/10/82 Tr. 89; 2/22/82 Tr. 43-52),

Leachate discharges also were seen coming from the

collection basin near the south side of the landfill into

the other affected waterway. Leachate was observed

flowing from a pipe that was not connected to this basin

(2/9/82 Tr. 27-43). That pipe was found to be in the

same position in both 1978 and 1980. Jbid.

6

In addition to the condition of the leachate collection

basins, evidence of petitioner’s negligence included his

failure to haul any leachate to the municipal sewage

treatment plant until March of 1980, when the federal

investigation began (2/10/82 Tr. 147-151; 2/22/82 Tr. 28).

Petitioner knew that he was supposed to haul leachate

off-site and was aware that his consultant told EPA in

1977 and 1978 that leachate was being hauled to the

municipal treatment plant (2/26/82 Tr. 103-118; 3/2/82

Tr. 50-64). Petitioner also allowed customers to dump

sludges containing a substantial amount of liquid at the

landfill, thus aggravating the leachate problem (2/22/82

Tr. 81-96, 150-178).

Evidence that leachate was a pollutant included the

observations of witnesses who described the particular

physical characteristics that distinguished it from the

water in the affected waters (2/8/82 Tr. 103-110; 2/9/82

Tr. 39-50, 180-194; 2/10/82 Tr. 89-91, 176-180; 2/22/82

Tr. 29-52). Samples of leachate obtained from and

around the leachate collections basins also were ana-

lyzed by laboratory personnel at EPA and DER and, on

one occasion, by a private laboratory (2/8/82 Tr.

112-120, 175-184; 2/10/82 Tr. 86-112, 176-190; 2/12/82 Tr.

18-70, 91-169; 2/22/82 Tr. 8-22). A comparison of these

analyses with EPA data showing the chemical compo-

nents of the waterways involved indicated that leachate

discharges would tend to create a “septic zone” in which

aquatic life could not survive (id. at 97-127). Some

leachate samples also contained “priority pollutants” as

defined by EPA and other substances at levels normal-

ly found in sewage (2/12/82 Tr. 33-55).

To show the magnitude of the leachate problem at

Moyer’s Landfill the government presented the testi-

mony of an environmental engineer, Gary Brown,

whose areas of expertise included environmental engi-

neering, landfill design, and leachate management

(2/22/82 Tr. 16-21). He described the results of a water

7

balance study of Moyer’s Landfill showing the total

leachate and the excess leachate (/.e., the amount of

leachate exceeding that which could be contained by the

landfill and its collection system) that were generated

at the landfill in 1978, 1979, and 1980 (2/23/82 Tr.

16-167; 2/24/82 Tr. 11-106, 135-142). Moreover, using

assumptions and facts proposed by the defense, Brown

provided revised estimates. /bid. Petitioner introduced

expert testimony challenging the water balance study,

and he testified extensively himself. After allowing the

defense to cross-examine the environmental engineer

about the basis and methodology of this study, the dis-

trict court ruled that the results of his study were ad-

missible under Fed. R. Evid. 702-704 (2/24/82 Tr.

127-131).

4. The court of appeals, in an order specifically

enumerating each of the contentions raised by petition-

er, affirmed the judgment of the district court (Pet.

App. Al-A3).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of

any court of appeals. Accordingly, further review is not

warranted.

1. Petitioner claims (Pet. 12-15) that the evidence ob-

tained from the warrantless environmental inspections

should have been suppressed. This claim is without

merit.

The operation of a landfill is a business closely and

pervasively regulated by the state and federal govern-

ment. Indeed, all such facilities required to have a per-

mit, including petitioner’s, were subject to regular in-

spections by DER (12/14/81 S-I 1.148-1.144,

1.157-1.158), and petitioner was aware of that regula-

tory authority from the time he first became associated

with the landfill (12/16/81 S-I 3.59). In addition, the

FWPCA (33 U.S.C. 1318) specifically empowers EPA

8

to conduct warrantless inspections. In these circum-

stances, as in Donovan v. Dewey, 452 U.S. 594, 600

(1981), the state and federal legislatures have “reason-

ably determined that warrantless searches are neces-

sary to further a regulatory scheme and the * * *

[governmental] regulatory presence is sufficiently com-

prehensive and defined that the owner of commercial

property cannot help but be aware that his property

will be subject to periodic inspections undertaken for

specific purposes.” See also Almeida-Sanchez v.

United States, 413 U.S. 266, 271 (1973); United States

v. Biswell, 406 U.S. 311, 316 (1972).

At all events, even apart from this regulatory author-

ity, petitioner’s motion to suppress was properly

denied. Certain of the evidence at issue was obtained

from locations outside the boundaries of Moyer’s Land-

fill. Since petitioner had no reasonable expectation of

privacy in these areas (see Rakas vy. Illinois, 439 U.S.

128, 143 (1978)), he cannot seek suppression. See

Rawlings v. Kentucky, 448 U.S. 98, 104-106 (1980).

With respect to the evidence seized from the landfill

property, petitioner allowed state and federal personnel

to enter the premises and make their inspections, and

the district court correctly found that such searches

were consensual (2/4/82 S-II 6-12). See United States v.

Watson, 423 U.S. 411, 424 (1976); Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973).

2. Petitioner also argues (Pet. 15-17) that the analy-

ses of leachate samples should have been suppressed

under Brady v. Maryland, 373 U.S. 83 (1963), because

the samples themselves had not been preserved for his

analysis.

The leachate samples in this case were discarded in

accordance with normal operating procedures after

they had been analyzed (2/4/82 S-II 17-18, 109-110). In

addition, petitioner was sent copies of the EPA analy-

ses prior to destruction of the samples (id. at 134-135).

9

Thus, no effort was made by the government to with-

hold evidence from petitioner or gain a tactical advan-

tage over him.

Moreover, the natural chemical decomposition of

these samples would have rendered them useless for

petitioner to analyze. As explained in the testimony of

EPA and DER laboratory supervisors, testing for the

materials involved in this case would have to be done

(depending upon the practicular material being ana-

lyzed) within periods of six hours to six months of

sample collection (2/4/82 S-II 49, 53-59, 84, 110-118).

Beyond those periods examination of the samples would

not have accurately indicated their contents at the time

they were collected (id. at 83-84). Therefore, when pe-

titioner was indicted in October 1981, the samples—the

last of which had been collected in early 1980—would

have been far beyond the point at which their analyses

could have furnished petitioner with any exculpatory

evidence. And, of course, petitioner was allowed to

cross-examine the experts who conducted the tests in

order to probe their methodology and the reliability of

their results.

Accordingly, the unavailability of the original

samples was not a reason for suppressing the chemical

analyses of those samples. See United States v. Loud

Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979), cert.

denied, 445 U.S. 917 (1980); United States v.

Picariello, 568 F.2d 222, 227 (1st Cir. 1978); United

States v. Herndon, 536 F.2d 1027, 1029 (5th Cir. 1976).

3. Petitioner next asserts (Pet. 17-21) that the Re-

source Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. (& Supp. V) 6901 et seq., is the ex-

clusive statute applicable to landfills and therefore

preempts the FWPCA and the Refuse Act under which

he was charged. This assertion is unfounded.

By its terms, the RCRA applies to the storage,

transportation, treatment, and disposal of solid waste

10

(including hazardous waste). See, e.g., 42 U.S.C. (&

Supp. V) 6902, 6903, 6928(d). While “disposal” may in-

clude the discharge of a solid or hazardous waste into

water, 42 U.S.C. 6904(3), the RCRA is not the only

statute that encompasses such pollution, and it was not

intended by Congress to displace other environmental

regulatory statutes. To the contrary, 42 U.S.C. 6905(a)

specifically provides that “[nJothing in this chapter [the

RCRA] shall be construed to apply to * * * any activi-

ty or substance which is subject to the Federal Water

Pollution Control Act.”? In this case, the FWPCA and

the Refuse Act clearly proscribe pollutant or refuse dis-

charges into the navigable waters of the United States,

and petitioner’s activities—the discharge of the

pollutant leachate into waterways without a permit—fit

squarely within those proscriptions.4

Nor does the “rule of lenity” compel a different re-

sult. Petitioner has pointed to no “statutory ambiguity”

that would support lenity here. Lewis v. United States,

445 U.S. 55, 65 (1980). Petitioner “has no constitutional

right to elect which of two applicable federal statutes

3 We also note, as petitioner acknowledges (Pet. 21 n.11),

that the FWPCA (33 U.S.C. 1362(6)) defines “pollutant” to in-

clude “solid waste.” This statutory definition would be rendered

meaningless if, as petitioner urges, all aspects of solid waste are

exclusively governed by the RCRA.

* Petitioner further contends (Pet. 18) that the FWPCA defi-

nition of “point source” (33 U.S.C. (Supp. V) 1362(14)) does not

mention landfills. The listing of point sources upon which peti-

tioner relies, however, is merely illustrative and, as Section

1362(14) expressly states, the statute “includles] but [is] not

limited to” those examples. The leaky leachate collection system

at Moyer’s Landfill falls well within the generic definition of

statutory source as “any discernible, confined and discrete con-

veyance * — * from which pollutants are or may be discharged.”

See Sierra Clab vy. Abston Construction Co., 620 F.2d 41, 44-45

(Sth Cir. 1980); [nited States v. Barth Sciences, Ine., 599 F.2d

$60, 374 (10th Cir. 1979).

11

shall be the basis of his indictment.” United States v.

Batchelder, 442 U.S. 114, 125 (1979).

4, Petitioner argues (Pet. 21-22) that the FWPCA re-

quires a showing of adverse impact upon receiving

waters. Actual damage to the environment, however, is

not an element of an offense under 33 U.S.C. (& Supp.

V) 1311(a) and 1319(¢)(1). Rather, the FWPCA broadly

prohibits the addition of pollutants to the waters of the

United States. 33 U.S.C. 1362(12). Of course, for a sub-

stance to be a pollutant, it must have a tendency to

harm or alter the integrity of a waterway. 33 U.S.C.

1362(19). In this case the government introduced ex-

pert testimony showing that the leachate discharges

from Moyer’s Landfill possessed substances in concen-

trations capable of adversely altering the biological in-

tegrity of the affected waterways (2/22/82 Tr. 97-127).

Therefore, the evidence did show that leachate was a

pollutant, and thus its discharge without a permit vio-

lated the FWPCA.5

5. Petitioner contends (Pet. 22-26) that “gross negli-

gence—the functional equivalent of willfulness” (/d. at

23)—is the minimum standard necessary to establish a

violation of the FWPCA. The Act, however, imposes

criminal liability upon “[aJny person who willfully or

negligently violates [its provisions]” (33 U.S.C. (&

Supp. V) 1319(¢); emphasis added). Furthermore, peti-

tioner has pointed to nothing in the legislative history

of the Act to indicate that the clear language of the

statute implies a standard of gross negligence. And the

5 Petitioner's argument regarding the Refuse Act also ap-

pears to turn on the necessity of showing harm (Pet. 22 n.12).

That Act proseribes the discharge “from the shore * * * [of]

any refuse matter of any kind or description whatever * * *.”

33 U.S.C. 407. Thus, it makes no mention of a requirement that

harm be shown. At all events, as discussed above, the govern-

ment’s evidence at trial was sufficient to demonstrate such

harm.

12

fact that Congress failed to give a specific statutory

definition to such a well-understood term as “negli-

gen(ce]” certainly does not support petitioner’s reading

that the Act requires gross negligence.

Conceding that “[t]here are no federal cases constru-

ing the Clean Water Act precisely on point” (Pet. 23),

petitioner seeks to rely (id. at 24-25) on United States

v. Oxford Royal Mushroom Products, Inc., 487 F.

Supp. 852 (E.D. Pa. 1980). That case, however, does

not suggest that gross negligence is required under the

FWPCA; the court simply noted that willfullness may

be imputed to a defendant because of grossly negligent

conduct (487 F. Supp. at 857). More relevant here is the

decision of the Third Circuit in United States v. Frezzo

Brothers, Inc., 602 F.2d 1123 (1979), cert. denied, 444

U.S. 1074 (1980), in whieh the court of appeals upheld a

conviction under the FWPCA for the negligent dis-

charge of pollutants. The court in Frezzo specifically

noted that the defendant’s abatement facilities were

negligently maintained, and it accepted the govern-

ment’s theory of the case, as the jury had been in-

structed, that the Act is violated by a negligent dis-

charge (602 F.2d at 1129-1130).

6. Contrary to petitioner’s characterization (Pet.

26-28), the district court did not instruct the jury that

they could convict petitioner under the Refuse Act

based merely upon his position as a responsible corpo-

rate officer and without regard to mens rea. Rather,

the district court specifically stated that the govern-

ment had to prove beyond a reasonable doubt “not only

that [petitioner] was an officer and responsible official

in Moyer’s Landfill Incorporated, but also that [he]

failed to seek out and remedy the violations when they

occurrea, or failed to implement measures that would

ensure that such violations would not occur” (3/3/82 Tr.

179). The district court also told the jury that they

could not find the petitioner guilty of the Refuse Act vi-

13

olations unless they concluded that he was the responsi-

ble corporate officer and that the alleged discharges

occurred through his willfullness or negligence. /d. at

182-183. Accordingly, there are no grounds for petition-

er’s contention that the instructions allowed him to be

convicted because of his status as a corporate officer

and regardless of his intent.®

7. Lastly, petitioner argues (Pet. 29-30) that the dis-

trict court erred in admitting the “water balance” anal-

ysis of the government’s expert, Gary Brown, because

that methodology had not previously been accepted by

a court. However, petitioner offers neither reason nor

® We also note that petitioner had an affirmative duty to de-

tect and prevent leachate discharges as set forth in the permit

application (2/8/82 Tr. 68-71) and that he was actively involved

in running the landfill and knew about the leachate problem

(2/25/82 Tr. 16-19).

Because the district court did not give strict-liability instruc-

tions to the jury, it is unnecessary to consider petitioner's fur-

ther argument that strict liability of an individual under the Re-

fuse Act is unconstitutional. The lower federal courts have

construed the Refuse Act to establish a public welfare or regu-

latory offense that imposes a strict-liability standard. See

United States v. White Fuel Corp., 498 F.2d 619, 622 (1st Cir.

1974); United States v. Mackin Const. Co., 388 F. Supp. 478,

481 (D. Mass. 1975); United States v. American Cyanamid Co.,

354 F. Supp. 1202, 1205 (S.D.N.Y. 1973), aff'd, 480 F.2d 1132,

1133 (2d Cir. 1973); United States v. Georgetown University,

331 F. Supp. 69 (D.D.C. 1971); United States v. United States

Steel Corp., 328 F. Supp. 354 (N.D. Ind. 1970), aff'd, 482 F.2d

439 (7th Cir.), cert. denied, 414 U.S. 909 (1973); United States

v. Interlake Steel Corp., 297 F. Supp. 912, 914-915 (N.D. Ill.

1969). This Court has consistently upheld strict-liability stat-

utes for regulatory offenses like that in the Refuse Act. See

United States v. Park, 421 U.S. 658 (1975); United States v.

Freed, 401 U.S. 601 (1971); United States v. Wiesenfeld Ware-

house Co., 376 U.S. 86, 91 (1964); United States v. Dotterweich,

320 U.S. 277 (1943). In light of the authorities construing the

Refuse Act to be a strict-liability statute, the district court’s in-

structions were unduly favorable to petitioner.

14

authority to support his view that the introduction of

expert evidence is limited to that which has previously

been used in court, and the Federal Rules of Evidence

clearly do not require such a static and rigid test.

Regardless of whether the correct standard for the

introduction of expert evidence centers on general ac-

ceptance or sufficient reliability,? Brown’s trial testimo-

ny shows that the water balance method was admissible

here. That method, developed in the early 1970s for

EPA, is commonly used and relied upon by experts in

Brown’s field to determine the amount of leachate gen-

erated by landfills (2/23/82 Tr. 29-30). In several states

the water balance method is required as part of landfill

designs to justify the size of a leachate treatment or

management system. /bid. With respect to the method-

ology he employed in his study of Moyer’s Landfill,

Brown testified that he analyzed all of the factors that

are commonly considered when using the water balance

method (2/23/82 Tr. 38-91). Accordingly, the district

7 Prior to the adoption of Fed. R. Evid. 702, the proponent of

expert testimony was required to show that the expert’s tech-

nique or scientific theory was generally accepted in his field.

The issue whether that requirement is retained by Rule 702 has

evenly divided the six circuits that have considered it. See 3 J.

Weinstein & M. Berger, Weinstein’s Evidence § 702[03] at

702-16 (1982). The Sixth, Ninth, and District of Columbia Cir-

cuits still require proof of general acceptance. See, e.g., United

States v. Hendershot, 614 F.2d 648 (9th Cir. 1980); United

States v. Brady, 595 F.2d 359 (6th Cir.), cert. denied, 444 U.S.

862 (1979); United States v. McDaniel, 538 F.2d 408 (D.C. Cir.

1976). The Second, Fourth, and Eighth Circuits, on the other

hand, have adopted a more flexible approach requiring the trial

judge to find only that the scientific technique or principle is

sufficiently reliable. See, e.g., United States v. Luschen, 614

F.2d 1164, 1169 n.3 (8th Cir. 1980), cert. denied, 446 U.S. 939

(1981); United States v. Williams, 583 F.2d 1194 (2d Cir. 1978),

cert. denied, 439 U.S. 1117 (1979); United States v. Baller, 519

F.2d 463, 466 (4th Cir.), cert. denied, 423 U.S. 1019 (1975).

15

court did not err in admitting Brown’s expert

testimony.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

REX E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

DAVID C, SHILTON

RAYMOND W. MUSHAL

Attorneys

JULY 1983