Appendix — Frezzo Bros., Inc. v. United States

82-2186 [Eres]

No.

JUR 27 1983

IN THE ALEXANDER L. STEVAS,

SUPREME COURT OF THE UNITED SEARS:

October Term, 1982

FREZZO BROTHERS, INC.

GUIDO FREZZO and JAMES L. FREZZO,

Petitioners

VU.

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit.

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

CARROLL & CARROLL

Attorneys for Petitioners,

Frezzo Brothers, Inc..,

Guido Frezzo and

James L. Frezzo,

Suite 1206,

615 Chestnut Street,

Philadelphia, Pennsylvania 19106

(215) 925-4100

JOHN ROGERS CARROLL

THOMAS COLAS CARROLL

Counsel of Record

THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000 ...45%). +0

TABLE OF CONTENTS

APPENDIX

Appendix A Page

Opinion U.S. vs. Frezzo Brothers, Inc., Guido

Frezzo and James L. Frezzo, 461 F.Supp. 266

GED. 6 GSW sob Cee woe eee eke A-1

Appendix B

Opinion, U.S. vs. Frezzo Brothers, Inc., Guido

Frezzo and James L. Frezzo, 602 F.2d 1123

SE SE MID 5 5-25. 5 v0 pigeon MOT A-16

Appendix C

Opinion, U.S. vs. Frezzo Brothers, Inc., Guido

Frezzo and James L. Frezzo, 491 F.Supp. 1339

ND ody sais 6:5 a? 0.9 0's «Wk ack howe A-31

Appendix D

Opinion, U.S. vs. Frezzo Brothers, Inc., Guido

Frezzo and James L. Frezzo, 642 F.2d 59 (3rd

RS ee ae er ee A-39

Appendix E

Opinion, U.S. vs. Frezzo Brothers, Inc., Guido

‘ Frezzo and James L. Frezzo, 546 F.Supp. 713

ER ED «ings: oh sete ke a aOR Rees A-50

Appendix F

Opinion, U.S. vs. Frezzo Brothers, Inc., Guido

Frezzo and James L. Frezzo, No. 82-1494

(March 8, 1983) (3rd Cir. 1983)........... A-78

Appendix G

Order of Mr. Justice Brennan dated May 20, 1983

Extending Time to File Petition for Writ of Cer-

tiorari to and Including June 27, 1983...... A-80

Appendix H

Amendment V, United States Constitution ...... A-81

Appendix I

33 U.S.C. §1311(a) and 33 U.S.C. §1319(c)..... A-82

Appendix J

8 ee (ie wm arian 9 A-83

APPENDIX A

UNITED STATES of America

v.

FREZZO BROTHERS, INC., Guido

Frezzo, James L. Frezzo.

Crim. No. 78-218.

United States District Court,

E. D. Pennsylvania.

Nov. 22, 1978.

Jury found defendants guilty of willfully or negli-

gently discharging pollutants in violation of the Federal

Water Pollution Control Act Amendments of 1972, and

defendants moved for judgment of acquittal or a new

trial. The District Court, Raymond J. Broderick, J., held

that: (1) issuance of an order or institution of a civil suit

by the administrator of the Environmental Protection

Agency was not prerequisite to filing of criminal pros-

ecution; (2) where defendants never obtained or applied

for a permit, any discharge of pollutants by them would

be unlawful even though no effluent standards were ap-

plicable to them; (3) evidence was sufficient to support

finding of guilt, and (4) language in indictment concern-

ing capacity in which individual defendants committed

the crime was surplusage and did not need to be proved,

and the jury did not have to be so charged.

Motion denied.

1. Criminal Law 753.2(2)

Contentions that court erred in denying pretrial mo-

tion to dismiss indictment should properly have been

raised in a motion for arrest of judgment rather than mo-

tion for judgment of acquittal or new trial. Fed. Rules

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

2. Navigable Waters 35

Neither issuance of an order notifying defendants of

alleged violations of the Federal Water Pollution Control

Act nor institution of a civil suit by administrator of the

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Environmental Protection Agency was prerequisite to

filing a criminal prosecution for willfully or negligently

discharging pollutants in violation of the Act. Federal

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

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

3. Navigable Waters 35

Where defendants never obtained or applied for a

permit, any discharge of pollutants by them would be

unlawful under the Federal Water Pollution Control Act

even though no effluent standards were applicable to

them. Federal Water Pollution Control Act, § 301(a) as

amended 33 U.S.C.A. § 1311(a).

4. Navigable Waters 35

In prosecution for willfully or negligently discharg-

ing pollutants in violation of the Federal Water Pollution

Control Act Amendments of 1972, evidence was suffi-

cient to support findings that each of defendants dis-

charged pollutants willfully or negligently in connection

with runoff from compost used in mushroom growing,

that individual defendants were owners or corporate offi-

cers of the corporate defenant, and that corporate de-

fendant owned the property and controled the compost

operation. Federal Water Pollution Control Act,

§§ 301(a), 309(c), 502(6) as amended 33 U.S.C.A.

§§ 1311(a), 1319(c), 1362(6).

5. Criminal Law 494

In prosecution for willfully or negligently discharg-

ing pollutants into stream, testimony of expert provided

sufficient actual basis for his opinion that condition or

pollution of stream was caused by discharge from defen-

dants’ property.

6. Criminal Law 673(4)

In prosecution for pollution violations, there was no

error in admitting into evidence a certain statement and

letter written by one of the defendants subject to in-

struction that the statement and letter were admissible

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only as to that defendant, where, in light of other evi-

dence against the other defendants, the statement and

letter were not powerfully incriminating or highly dam-

aging to those defendants or of substantial weight in the

Government's case against those defendants.

7. Criminal Law 793

Indictment and information 167

In prosecution for willfully or negligently discharg-

ing pollutants in violation of the Federal Water Pollut-

ants in violation of the Federal Water Pollution Control

Act, language concerning the capacity in which individ-

ual defendants committed the crime, referring to them

as co-owners and officers of defendant corporation, was

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

was no error in omitting such language in charge to the

jury concerning the individual defendants. Federal

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

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

8. Searches and Seizures 7(26)

In prosecution for water pollution violations, defen-

dants lacked standing to object to seizure of samples

taken from a channel box which was not located on de-

fendants’ property, where there was no evidence that de-

fendants were on the premises at the time of the seizure

of the samples, that they had a legitimate proprietary or

possessory interest in the premises from which the sei-

zure was made, or that defendants were charged with an

offense that includes as an essential element of the of-

fense possession of the samples seized.

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

U.S. Atty., Eastern District of Pennsylvania, Philadel-

phia, Pa., Michael P. Carlton, Sp. Atty., Dept. of Justice,

Washington, D. C., for plaintiff.

William J. Gallagher, MacElree, Harvey, Gallagher

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

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

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

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

were found guilty by a jury on all six counts of an indict-

ment charging them with willfully or negligently dis-

charging pollutants in violation of Sections 301(a) and

309(c) of the Federal Water Pollution Control Act

Amendments of 1972 (the Act), 33 U.S.C. §§1311(a),

1319(c) (1970 ed. Supp. IV). Defendants have filed a

motion for judgment of acquittal. In the alternative, they

have moved for a new trial. Oral argument was had on

the motions. For the reasons hereinafter set forth, de-

fendants’ motions will be denied.

1. Motion for Judgment of Acquittal.

[1] In their motion for judgment of acquittal, de-

fendants make the following contentions:

(A) That the Court erred in denying the defend-

ants’ pretrial motion to dismiss the indictment for failure

of the Administrator of the Environmental Protection

Agency (EPA) either to notify the defendants of alleged

violations or to institute a civil suit against them, prior to

the institution of criminal proceedings;

(B) That the Court erred in denying the defend-

ants’ pretrial motion to dismiss the indictment on the

ground that there were no effluent standards applicable

to defendants;! and

1. The first two contentions of the defendants should properly

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

34; 2 Wright, Federal Practice and Procedure: Criminal §§571-574

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

in such a motion and deny the motion for the reasons stated therein.

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(C) That there was insufficient evidence presented

to prove that the alleged discharge of pollutants was

caused either willfully or negligently by any of the de-

fendants, that any of the defendants discharged the pol-

lutants, that the individual defendants were either own-

ers or corporate officers of Frezzo Bros. at the time of the

alleged offenses, and that Frezzo Bros. owned the prop-

erty in question or operated the holding tank in question

at the time of the alleged offenses.

[2] In connection with the defendants’ contentions

that the issuance of an order or the institution of a civil

suit by the Adminstrator is a prerequisite to the filing of a

criminal prosecution, we agree with the decision of the

court in United States v. Phelps Dodge Corp., 391

F.Supp. 1181 (D.Ariz.1975), which considered and re-

jected this same contention. In Phelps Dodge, the Court

concluded that the Adminisrator is “not required to pro-

ceed first to effect a correction by civil means before in-

stituting criminal proceedings.” Id. at 1184. Thus, we

find that we correctly denied the defendants’ motion to .

dismiss.

[3] In connection with the defendants’ contention

that the indictment should have been dismissed because

of the lack of effluent standards applicable to the defend-

ants, we read Section 301(a) of the Act as clearly prohib-

iting the discharge of pollutants without a permit by any

person, except as in compliance with certain sections of

the Act which the defendants do not contend are appli-

cable, 33 U.S.C, §§1311(a) (1970 ed., Supp. IV). The

defendants acknowledge that they neither have a permit

nor have they applied for one. In interpreting Section

301(a) of the Act, the Supreme Court has stated that “it

is unlawful for any person to discharge a pollutant with-

out obtaining a permit and complying with its terms.”

EPA v. State Water Resources Control Board, 426 U.S.

200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976);

see Train v. Colorado Public Interest Research Group,

426 U.S. 1, 7, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976); Na-

A-6

tional Resources Defense Council, Inc. v. Costle, 568

F.2d 1369, 1374, 186 U.S.App.D.C. 147 (1977) (“the

legislative history [of the Act] makes clear that Congress

intended the . . . permit to be the only means by which a

discharger [of pollutants] . . . may escape the total prohi-

bition of §301(a)”); Bethlehem Steel Corp. v. Train, 544

F.2d 657, 659 (3d Cir.), cert, denied, 430 U.S. 975, 97

S.Ct. 1666, 52 L.Ed.2d 369 (1976) (“all discharges of

pollutants must be authorized by a permit...”"). Be-

cause the defendants admit that they never obtained or

applied for a permit, any discharge of pollutants by them

would be unlawful under Section 301(a), even though

no effluent standards are applicable to them. Thus, we

correctly denied the defendants’ motion to dismiss on

the ground that there were no applicable effluent stand-

ards.

[4] In connection with defendants’ contention that

the evidence was insufficient, we find that the evidence

produced at trial, viewed in a light most favorable to the

Government, Glasser v. United States, 315 U.S. 60, 80,

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

Armocida, 515 F.2d 29, 46 (3d Cir.), cert. denied, 423

U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975), is more

than sufficient to support the verdict. We summarize it

as follows:

The defendants, Guido and James, are President

and Secretary, respectively, of the defendant corpora-

tion, Frezzo Bros., a family business formed in the

1950’s engaged in the growing of mushrooms and the

manufacturing of mushroom compost necessary for

growing mushrooms. The primary ingredient of mush-

room compost is horse manure. The Frezzo Bros. prop-

erty (the Frezzo property) is located on the east side of

Penn Green Road, near Avondale, Chester County,

Peainsylvania. A concrete holding tank constructed on

the property in 1971 gathers the water runoff from the

compost and, by a system of pumps, recirculates the

water runoff back onto the compost. In addition, a storm

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water runoff system separate from the compost oper-

ations carries rainwater from the property, under Penn

Green Road through a pipe which runs for approxi-

mately 200 feet from the Frezzo property into an

unnamed tributary of the East Branch of the White Clay

Creek. The White Clay Creek crosses the Delaware state

line and runs into the Christina River, which in turn

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

charged in the indictment, runoff from the compost pile

made its way into the storm water runoff system and was

carried through the pipe into the tributary of the White

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

of the Penn Green Road, across the street from the

Frezzo property. By lifting the cover on this channel box,

one can observe the drainage from Frezzo Bros.’ storm

water runoff system as it flows through the pipe toward

the White Clay Creek.

The evidence presented by the Government showed

that samples of the discharge from the Frezzo property

were taken on each of the six dates charged in the in-

dictment, and many of these samples were introduced as

exhibits at trial. The testimony and stipulations of var-

ious chemists and physical scientists demonstrated that

chemical and bacteriological tests were properly con-

ducted on each of the samples and that the discharges

were “sewage”, inasmuch as the results of the tests

showed that the samples contained higher concentra-

tions of pollution-producing chemicals and bacteria than

untreated human sewage. In addition, one physcial sci-

entist testified that the test results clearly indicated that

the discharges contained “biological materials” and that

the discharges were also “sewage”. “Sewage” and “bio-

logical materials” are terms specifically included in the

Act’s definition of “pollutant”. 33 U.S.C. §13262(6)

(1970 ed. Supp. IV).

A-8

The Government introduced as exhibits at trial sev-

eral photographs which showed not only the layout of

the Frezzo property, but also the path that runoff from

the compost pile would follow in entering the storm

water runoff system, through which it would be carried

from the Frezzo property through the channel box into

the unnamed tributary of the East Branch of the White

Clay Creek. One witness testified that he had actually

walked along the path of the pipe from Penn Green Road

to the pipe’s end at the tributary and that there were no

other mushroom manufacturers upgrade of the channel

box. He further testified that results of analyses of sam-

ples from the channel box and from the White Clay

Creek substantiated his conclusion that the pollution in

the White Clay Creek came from the Frezzo property.

Therefore, his stated opinion was that the pollution of

the White Clay Creek was due primarily to the discharge

from the Frezzo property. In addition, there was testi-

mony concerning the amount of rainfall in the area and

that the holding tank was not large enough to contain

normal rainfall.

Testimony was presented by several witnesses that

on many occasions, commencing as far back as 1970,

the defendants in this case had been investigated, vis-

ited and confronted by a number of state and county em-

ployees concerning the fact that the stream in question

was being polluted by runoff from the compost operation

conducted by the defendants on the Frezzo property.

Testimony in connection with the articles of incor-

poration of Frezzo Bros., which were introduced as an

exhibit by the Government, demonstrated that the cor-

poration was incorporated in 1969 under the laws of

Pennsylvania and that James and Guido were two of the

three original directors. The Government also intro-

duced as an exhibit a deed dated February 2, 1973

which listed Frezzo Bros. as grantor and which

contained notarized signatures of Guido as President

and James as Secretary. On a visit to the Frezzo property

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on November 16, 1976, an environmental specialist with

the Pennsylvania Department of Environmental Re-

sources (the DER), upon asking to speak to a responsi-

ble official of the company, was directed to James. He

questioned James concerning a brown-colored liquid

flowing in the White Clay Creek coming from a pipe he

had traced to the Frezzo property. A letter dated October

4, 1971 from James to the DER, introduced as an exhibit

by the Government, indicated that James knew that the

holding tank was inadequate. One witness testified that

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

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

who indicated their control and ownership of the prem-

ises, including the holding tank; they also told him that

they had constructed the storm runoff system. This wit-

ness made an in court identification of both James and

Guido. In addition, there was testimony that on May 9,

1978 James made the statement that “we can control

our waters 95% of the time.”? Finally, there was testi-

mony that the Frezzo property was listed at the tax as-

sessor’s office in the Chester County Courthouse as be-

longing to the corporation.

The Government’s case was strong, and there can

be no doubt that the evidence was sufficient to support

the jury’s verdict as to each of the defendants and as to

each of the six counts of the indictment. The evidence

amply supports a finding by the jury that each of the de-

fendants discharged pollutants willfully or negligently,

that James and Guido were owners or corporate officers

of Frezzo Bros., and that Frezzo Bros. owned the prop-

erty and controlled the compost operation. We therefore

reject the defendant’s contention that the evidence pro-

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

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

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

fendants challenge the admissibility against Guido and Frezzo Bros.

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

infra.

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duced at trial was insufficient to support the verdict of

the jury.

IJ. Motion for a New Trial.

Defendants claim the following errors in support of

their motion for a new trial:

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

opinion offered by Richard Casson to the effect that the

condition or pollution of the stream at the Ellicott Ave-

nue Bridge was caused by the discharge from the Frezzo

property;

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

fendants’ objections to the statement made by James on

May 9, 1978 and to the reading of Government exhibit

No. 41;

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

fendants’ point for charge No. 5 that the mere discharge

of a pollutant is not a criminal offense;*

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

that the individual defendants could be found guilty out-

side their capacity as alleged co-owners and responsible

officers of the corporation; and

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

fendants’ motion to suppress samples taken from the

channel box.

A. The Opinion of Richard Casson.

[5] In connection with the defendants’ contention

that the opinion offered by Mr. Casson that the condition

or pollution of the stream of the East Branch of the

White Clay Creek at the Ellicott Avenue Bridge was

caused by the discharge from the Frezzo property

should have been stricken for lack of a factual basis, we

find that our ruling at trial was correct. Mr. Casson testi-

fied that he had on several occasions observed the flow

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

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

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

to show the discharge was intentional or negligent.”

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of the discharge from the Frezzo property to the Ellicott

Avenue Bridge. In addition, he testified that a compari-

son of the results of the analyses of samples from the

channel box and samples from the White Clay Creek

substantiated his conclusion. Thus, we find that there

was a sufficient factual basis for Mr. Casson’s opinion.

See United States v. R. J. Reynolds Tobacco Co., 416 F.

Supp. 313 (D.N.J.1976).

B. Statement and Letter of James.

[6] The defendants, Guido and Frezzo Bros., con-

tended that the Court erred in admitting into evidence a

statement made by James on May 9, 1978 and the con-

tents of a letter written by James to the DER on October

4, 1971, despite the Court’s instruction to the jury that

the letter and the statement were admissible only as to

James. Neither the statement made by James nor the

pertinent contents of the letter fall within the Bruton

rule, as defendants contend. Bruton v. United States,

391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).4 In

Bruton, the Supreme Court held that the admission of a

co-defendant’s confession implicating the defendant

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

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

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

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

considering the installation of another holding tank,” which letter

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

evidence presented in the case, that these statements were made by

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

Bros. and would probably be admissible against Frezzo Bros. Fur-

thermore, since declarations of one partner in crime are admissible

against his confederates where, as here, they were made in further-

ance of a joint criminal venture and there is sufficient evidence in-

dependent of these statements to indicate the existence of such a

venture, such statements probably would have been admissible

against Guido and perhaps the corporation. United States v.

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

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

tion, however, at the request of the defendants the Court instructed

the jury to consider the statements only against James.

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was a violation of the defendant’s right to cross-examine

witnesses against him, even if it was admitted with a

cautionary instruction to the jury that the statement was

only to be considered as evidence against the co-defend-

ant. But implicit within this ruling was the rationale that

the statement represent a “powerfully incriminating

extrajudicial statement” which was highly damaging to

the defendant and which was of critical, or at least sub-

stantial, weight to the Government’s case. 391 U.S. at

128, 135, 38, 88, S.Ct. 1620; United States v. Munford,

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

other evidence against defendants Guido and Frezzo

Bros., we find that the statements involved here were

not powerfully incriminating, highly damaging to these

defendants, or of substantial weight to the Government's

case against these defendants. Thus, we find that our

rulings with respect to the May 9, 1978 statement of

James and the letter from James to the DER were cor-

rect.

C. Point for Charge No. 5.

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

charge the jury that the mere discharge of a pollutant is

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

specifically charged the jury as follows:

In connection with the second element, there-

fore, the burden is on the Government to prove be-

yond a reasonable doubt that the defendants dis-

charge of the pollutant was done willfully or

negligently and the mere discharge of the pollutant,

without proof that it was done either willfully or

negligently, does not satisfy the Government’s bur-

den of proof beyond a reasonable doubt that the dis-

charge was done willfully or negligently.

D. Charge of Court Concerning Individual Defend-

ants.

[7] The individual defendants contend that the

Court erred in its charge to the jury concerning

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them. They point to the indictment which charges

that James, “an individual in his capecity as co-

owner and Secretary of Frezzo Brothers, Inc.” vio-

lated Sections 301(a) and 309(c) of the Act and that

Guido, “an individual in his capacity as co-owner

and President of Frezzo Brothers, Inc.” violated

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

claim that the Court erred in omitting this language

in its charge to the jury concerning the individual

defendants.

The statute creates an offense, the gravamen of

which is the willful or negligent discharge of a pol-

lutant by any person without a permit. It does not

create a separate offense for such a discharge by a

person in his capacity as a co-owner or an officer of

a corporation or in any other capacity. In the

Court’s charge, the jury was instructed that the

Government had a burden to prove beyond a reason-

able doubt all of the essential elements of the crime

as to each defendant.® The charge stated that the

essential elements of the crime consisted of the will-

ful or negligent discharge of a pollutant without a

5. The Act defines “person” as follows:

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

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

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

§1362(5) (1970 ed. Supp. IV).

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

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

tion 1362(5) of this title, any responsible corporate officer.” 33

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

concerning the meaning of the phrase “responsible corporate offi-

cer

6. The Court charged the jury as follows:

Now, the essential elements that must be found beyond a

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

lating those sections—in other words. Title 33, Section 1311(a)

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

A-14

permit. Inasmuch as the capacity in which one dis-

charges the pollutant is not an essential element of

the crime, the language of the indictment alleging

that James and Guido each acted in his capacity as

co-owner and/or Secretary and President of Frezzo

Bros. goes beyond alleging matters which are essen-

tial elements of the crime. Language in an indict-

ment which goes beyond alleging matters which are

essential elements of the crime charged in surplus-

age and need not be proved. United States v.

Greene, 497 F.2d 1068, 1086 (7th Cir. 1974), cert.

denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2D 839

(1975); United States v. Goodwin, 440 F.2d 1152,

1157 (3d Cir. 1971). It therefore follows that the

language concerning the capacity in which James

and Guido committed the crime is surplusage and

need not be proved, and the jury need not have been

so charged.

In their memorandum of law in support of their

motion for a new trial, the defendants allege a fatal

variance between the indictment and the Court’s

charge. The Court finds no basis for such a conten-

tion. Defendants rely on United States v. Smolar,

557 F.2d (1st Cir.), cert. denied, 434 U.S. 971, 98

S.Ct. 523, 54 L.Ed.2d 461 (1977), which held that

the Court may not in its instruction change the

charging part of an indictment “to suit its own no-

tions of what it ought to have been, or what the

grand jury would probably have made it if their at-

tention had been called to suggested changes.” Id.

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

have it with you out there.

These are the elements:

Number 1. That the defendant discharged a pollutant;

Number 2. That the defendant's discharge of the pollut-

ant was done willfully or negligently;

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

charge the pollutant.

A-15

at 19 (quoting Stirone v. United States, 361 U.S.

212, 216, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) ). The

fact that the charge did not mention co-owners and

officers of Frezzo Bros. did not in any way change

the charging part of the indictment as discussed in

Smolar. The indictment was read to the jury and it

went out with the jury during its deliberations. Fur-

thermore, all of the evidence presented by the Gov-

ernment concerning James and Guido pointed to

the fact that they were in control of the operation of

Frezzo Bros. We are, therefore, unable to find any

error in charge.

E. Motion to Suppress.

[8] Defendants contend that the Court should

have ordered the suppression of all of the samples

taken from the channel box on the west side of

Penn Green Road, which channel box was not lo-

cated on the Frezzo property. At the suppression

hearing, however, there was no evidence presented

that the defendants were on the premises at the

time of the seizure of the samples, that the defend-

ants had a legitimate proprietary or possessory inter-

est in the premises or that the defendants were

charged with an offense that includes as an essen-

tial element of the offense possession of the samples

seized. Brown v. United States, 411 U.S. 223, 230,

93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Thus, the de-

fendants lacked standing to object to the seizure of

the samples taken from the channel box, and we

correctly denied their pretrial motion to suppress.

While we do not herein discuss all the conten-

tions of alleged error raised by the defendants, we

have considered each and every allegation of error

and hold that none of them, singly or collectively, is

of sufficient substance to merit any further discus-

sion as a basis for granting a judgment of acquittal

or a new trial in this case.

Accordingly, an Order will be entered denying

the defendants’ motions for judgment of acquittal

and a new trial.

A-16

APPENDIX B

UNITED STATES of America, Appellee,

v.

FREZZO BROTHERS, INC., Guido Frezzo, and James L.

Frezzo, Appellants.

Nos. 78-2670 to 78-2675.

United States Court of Appeals,

Third Circuit,

Argued June 7, 1979.

Decided July 13, 1979.

Rehearing Denied Oct. 22, 1979.

Defendants were convicted in the United States

District Court for the Eastern District of Pennsylvania,

461 F.Supp. 266, Raymond J. Broderick, J., of willfully

or negligently discharging pollutants into navigable

water of the United States without a permit, and they ap-

pealed. The Court of Appeals, Rosenn, Circuit Judge,

held that: (1) there were no civil prerequisites to govern-

ment’s maintenance of criminal proceedings under the

Act; (2) there was no requirement that Environmental

Protection Agency promulgate effluent standards appli-

cable to compost-manufacturing business prior to pros-

ecution; and, (3) evidence supported convictions.

Affirmed.

1. Navigable Waters 35

There are no civil prerequisites to government’s

maintenance of criminal proceedings under the Federal

Water Pollution Control Act. Federal Water Pollution

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

§ 1319(c).

2. Navigable Waters 35

There is no requirement that defendants be shown

to have not complied with existing effluent limitations

A-17

under the Federal Water Pollution Control Act before

violation of section prohibiting willfully or negligently

discharging pollutants into navigable water of the

United States without a permit. Federal Water Pollution

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

§ 1311(a).

3. Navigable Waters 35

Promulgation of effluent limitations standards is not

a prerequisite to maintenance of criminal proceeding

based on violation of section of the Federal Water

Polution Control Act Amendments of 1972 prohibiting

willful or negligent discharge of pollutants into naviga-

ble waters of the United States without a permit. Federal

Water Pollution Control Act Amendments of 1972,

§ 301(a), 33 U.S.C.A. § 1311(a).

4. Navigable Waters 35

Evidence, in prosecution for willful or negligent dis-

charge of pollutants into navigable water of the United

States without a permit, was sufficient to support con-

victions. Federal Water Pollution Control Act Amend-

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

§§ 1251-1376, 1311(a), 1319(c).

5. Criminal Law 870

Special verdicts are generally disfavored in criminal

cases.

6. Criminal Law 7981

Where evidence was sufficient to sustain each

count of willful or negligent discharge of pollutants into

navigable water of United States without a permit on

theory of willful discharge on counts one through four

and on theory of negligent discharge under counts five

and six, there was no compelling necessity for special

verdict, particularly in light of fact that there is no vari-

ance in statutory penalty between willful and negligent

violations and, therefore, trial judge did not abuse dis-

cretion in declining to submit special verdict. Federal

A-18

Water Pollution Control Act Amendments of 1972, §§

101-517, 301(a), 309(c), 33 U.S.C.A. §§ 1251 1376,

1311(a), 1319(c).

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

MacElree, Harvey, Gallagher & Kean, Ltd., West Ches-

ter, Pa., for appellants.

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

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

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

Before ADAMS and ROSENN, Circuit Judges, and

LACEY, District Judge.*

OPINION OF THE COURT

ROSENN, Circuit Judge.

Since the enactment in 1948 of the Federal Water

Pollution Control Act, 62 Stat. 1155 (“the Act”), the Gov-

ernment has, until recent years, generally enforced its

provisions to control water pollution through the applica-

tion of civil restraints.' In this case, however, the Gov-

ernment in the first instance has sought enforcement of

the Act as amended in 1972, 33 U.S.C.A. §§ 1251-1376

(Supp. 1973), against an alleged corporate offender and

its officers by criminal sanctions. Whether the Govern-

ment may pursue the criminal remedies under the Act

before instituting a civil action or before giving written

notice of the alleged violation is the principal issue pre-

sented in this appeal.

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

the District of New Jersey, sitting by designation.

1, Ina comprehensive analysis made in 1973 of the use of crim-

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

Glenn, former deputy assistant administrator for federal water en-

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

government has relied almost exclusively on negotiation, public

pressure, and voluntary compliance by dischargers as the principal

means of achieving compliance with federal water pollution control

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

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

(foot-note omitted).

A-19

The appellants were convicted by a jury on six

counts of willfully or negligently discharging pollutants

into a navigable water of the United States without a

permit, in violation of 33 U.S.C. §§ 1311(a), 1319(c).

The corporate defendant, Frezzo Brothers, Inc., was

fined $50,000, and the indiviveal defendants, Guido and.

James Frezzo received jail sentences of thirty days each

and fines aggregating $50,000. The Frezzos appeal from

the trial court’s final judgment of sentence. We affirm.

I.

Frezzo Brothers, Inc., is a Pennsylvania corporation

engaged in the mushroom farming business near

Avondale, Pennsylvania. The business is family operated

with Guido and James Frezzo serving as the principal

corporate officers. As a part of the mushroom farming

business, Frezzo Brothers, Inc., produces compost to

provide a growing base for the mushrooms. The compost

is comprised mainly of hay and horse manure mixed

with water and allowed to ferment outside on wharves.

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

ing tank designed to contain water run-off from the com-

post wharves and to recycle water back to them. The

farm had a separate storm water run-off system that car-

ried rain water through a pipe to a channel box located

on an ajoining property owned by another mushroom

farm. The channel box was connected by a pipe with an

unnamed tributary of the East Branch of the White Clay

Creek. The waters of the tributary flowed directly into

the Creek.

Counts One through Four of the indictment

charged the defendants with discharging pollutants in to

the East Branch of the White Clay Creek on July 7, July

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

dates Richard Casson, a Chester County Health depart-

ment investigator, observed pollution in the tributary

flowing into the Creek and collected samples of wastes

A-20

flowing into the channel box. The wastes had the dis-

tinctive characteristics of manure and quantititave anal-

ysis of the samples revealed a concentration of pollutants

in the water. The Government introduced meteorologi-

cal evidence at trial showing that no rain had been re-

corded in the area on these four dates. Based on this evi-

dence, the Government contended that the Frezzos had

willfully discharged manure in to the storm water run-

off system that flowed into the channel box and into the

stream.

Investigator Casson returned to the Frezzo farm on

January 12, 1978, to inspect their existing water pollu-

tion abatement facilities. Guido and James Frezzo

showed Casson both the holding tank designed to con-

tain the waste water from the compost wharves, and the

separate storm water runoff system. Casson returned to

the farm on May 9, 1978 with a search warrant and sev-

eral witnesses. This visit occured after a morning rain

had ended. The witnesses observed the holding tank

overflowing into the storm water run-off system. The

path of the wastes from the Frezzo holding tank to the

channel box and into the stream was photographed.

James Frezo was present at the time and admitted to

Casson that the holding tank could control the water

only 95% of the time. Samples were again collected, sub-

jected to quantitative analysis and a high concentration

of pollutants was found to be present. This incident gave

rise to Count Five of the indictment.

Additional samples were collected from the channel

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

centration of pollutants was found to be present. This

evidence served as the basis for Count Six of the indict-

ment. At trial, the Government introduced evidence of

the rainfall on May 9 and May 14, along with expert

hydrologic testimony regarding the holding capabilities

of the Frezzos’ tank. The Government theorized that the

holding tank was too small to contain the compost

A-21

wastes after a rainstorm and that the Frezzos had negli-

gently discharged pollutants into the stream on the two

dates in May.

The jury returned guilty verdicts on all six counts

against the corporate defendant, Frezzo Brothers, Inc.,

and individual defendants, Guido and James Frezzo.

The trial court denied the defendants’ motions for judg-

ment of acquittal and new trial in a memorandum opin-

ion, United States v. Frezzo Brothers, Inc., 461 F.Supp.

266 (E.D.Pa. 1978).

Il.

[1] The Frezzos first argue that the Administrator

of the Environmental Protection Agency must either

give them some notice of alleged violations of the Fed-

eral Water Pollution Control Act, or institute a civil ac-

tion before pursuing criminal remedies under the Act,

Judge Broderick, the trial judge, rejected this argument,

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

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

held that there were no civil perequisites to the Govern-

ment’s maintenance of criminal proceedings under this

Act. We agree.

. The enforcement provisions of the Act are

contained in 33 U.S.C. §1319. The criminal provision of

the Act, §1319(c) provides in relevant part.

(1) Any person who willfully or negligently violates

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

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

$25,000 per day of violation, or by imprisonment for

not more than one year, or by both. . . .

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

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

governing civil actions. There is conflicting legislative

history with respect to whether a compliance order or a

civil suit by the Administrator should be a prerequisite to

the Government’s institution of criminal proceedings

A-22

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

however, relied on the final House Committee Report

which clearly indicated that writtten notice of the viola-

tion, administrative, civil, or criminal remedies under

the Act were to be alternative remedies. The key portion

of the House Committee Report provides:

Whenever on the basis of any information avail-

able to him the Administrator finds that anyone is in

violation of any of these requirements, he may take

any of the following enforcement actions: (1) he

shall issue an order requiring compliance; (2) he

shall notify the person in alleged violation in such

state of such finding. . . or (3) he shall bring a civil

action; of (4) he shall cause to be instituted criminal

proceedings.

Legislative History, supra at 801-02 (emphasis sup-

plies). This statement led the court in Phelps Dodge to

conclude that the Administrator “is not required to pro-

ceed first to effect a correction by civil means before in-

stituting criminal proceedings.” 391 F.Supp. at 1184. An

identica) result was reached by the court in U.S. v. Hud-

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

We believe that these cases place a correct gloss on

the enforcement provisions of the Act.* There is nothing

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

2. Senator Muskie expressed the view in the Senate's consid-

eration of the Conference Committee Report that an abatement or-

der or civil action was mandatory under the Act. A Legislative His-

tory of the Federal Water Pollution Control Act Amendments of

1972, U.S. Government Printing Office, at 174. A similar view was

espoused by Representative Harsha in the House during debate on

the House Bill. Legislative History, supra at 530.

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

the present case and hence was not considered by the court reach-

ing its decision.

4. For a general review of the 1972 amendments see Com-

ment. The Federal Water Pollution Control Act Amendments of

1972, 1973 Wis.L. Rev. 893 (1973).

A-23

prior written notice, other administrative or civil reme-

dies are prerequisite to criminal proceedings under the

Act. The Senate acceded to the House in not making

civil enforcement mandatory upon the Administrator

under section 1319. Legislative History, supra at 174.

Hence, we can only conclude that whatever support ex-

isted for the position urged by the Frezzos did not prevail

in the enactment of the final Bill.

Further, we see no reason why the Government

should be hampered by prerequisites to seeking criminal

sanctions under the Act. The Frezzos urge that it can

only be through prior notification, followed by continued

polluting in the face of such notice, that willful violations

of the Act can be established. We find this argument

unconvincing. Although continued discharges after no-

tification could be one way for the Government to prove

scienter, it is certainly not the only way to establish will-

ful violations. The Government could logically argue, as

it did in this case, that the circumstances surrounding

the alleged discharge manifested willful violations of the

Act and that it had the power to pursue criminal rather

than civil sanctions. Furthermore, in view of the broad

responsibilities imposed upon the Administrator of the

EPA, he should be entitled to exercise his sound discre-

tion as to whether the facts of a particular case warrant

civil or criminal sanctions.> We therefore hold that the

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

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

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

nal remedies for water pollution. See Legislative History, supra at

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

prevalent feelings of the Congress during consideration of the en-

forcement aspects of the 1972 Amendments was that the enforce-

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

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

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

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

sanctions .ader the Act would be.inconsistent with Congress: de-

sire for a stronger enforcement mechanism.

A-24

Administrator of the EPA is not required to pursue ad-

ministrative or civil remedies, or give notice, before in-

voking criminal sanctions under the Act.

Ill.

[2] The Frezzos next contend that the indictment

should have been dismissed because the EPA had not

promulgated any effluent standards applicable to the

compost manufacturing business. The Frezzos argue

that before a violation of §1311(a) can occur, the defen-

dants must be shown to have not complied with existing

effluent limitations under the Act. The district court

disagreed, finding no such requirement. 461 F.Supp. at

268-69. We agree with the district court.

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

which reads:

Except as in compliance with this section and

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

this title, the discharge of any pollutants by any per-

son shall be unlawful.

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

gation of effluent limitations for point sources and sec-

tion 1312 provides for the establishment of water quality

related effluent limitations. The Frezzos contend that

they cannot have violated the Act because the EPA has

not yet promulgated effluent limitations which they can

be held to have violated. Appellants rely primarily on

United States v. GAF Corporation, 389 F.Supp. 1379

(S.D. Texas 1975) as support for their position. That

case did hold that before an abatement order may be is-

sued pursuant to §1319(a)(3) of the Act, the defendants

must be shown to have violated an applicable effluent

limitation. 389 F.Supp. at 1385-86. The Government ar-

gues, however, that the decision is incorrect and cites

American Frozen Food Institute v. Train, 176

U.S.App.D.C. 105, 113, 539 F.2d 107, 115 (1976) for the

proposition that:

A-25

By 1972 Congress determined upon wholly a

new approach. The basic concept of the Act [section

1311(a)] we construe in this case is an ultimate flat

prohibition upon all discharges of pollutants... .

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

tion which is central to the entire Act is statutory and re-

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

539 F.2d at 128.

The Sixth Circuit has enforced criminal penalties

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

Hamel, 551 F.2d 107, 109 (6th Cir. 1977), the court

state: “The negligent or willful violation of §1311(a),

however, without justification subjects one to the crimi-

nal sanctions [sic] §1319(c)(1).” The Government con-

tends in the instant case that the lack of effluent limita-

tions is no defense to a violation of §1311(a). It argues

that when no effluent limitations have been established

for a particular business, the proper procedure is for the

business to apply for a permit to discharge pollutants un-

der 33 U.S.C. §1342(a), which allows the Administrator

to establish interim operating conditions pending ap-

proval.® The district court in GAF explicitly rejected this

argument as placing too harsh a burden on the defend-

ant because it viewed the Act as not allowing any dis-

charge pending approval of the permit. 389 F.Supp. at

1386. The Government contends in the present case,

however, that the absence of effluent limitations should

not be allowed to nullify the flat prohibition on dis-

charges under §1311(a). We agree.

The GAF court appropriately recognized that the

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

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

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

ing section 1311(a) of this title, upon condition that such dis-

charge will meet all applicable requirements. . . , or prior to

the taking of necessary implementing actions relating to all

such requirements, such conditions as the administrator deter-

mines are necessary to carry out the provisions of this chapter.

A-26

legislative history of the Act was “curiously incomplete”

on the issue in question. Id. We therefore must interpret

the statute in a fashion that best effectuates the policies

of the Act. The basic policy of the Act is to halt

uncontrolled discharges of pollutants into the waters of

the United States. 33 U.S.C. §1251. In fact, the Act sets

forth “the national goal that the discharge of [all] pollut-

ants into the navigable waters be eliminated by 1985.”

Id. §1251(a)(1); United States v. Hamel, supra at 109.

We see nothing impermissible with allowing the Gov-

ernment to enfore the Act by invoking §1311(a), even if

no effluent limitations have been promulgated for the

particular business charged with polluting. Without this

flexibility, numerous industries not yet considered as se-

rious threats to the environment may escape administra-

tive, civil, or criminal sanctions merely because the EPA

has not established effluent limitations. Thus, danger-

ous pollutants could be continually injected into the

water solely because the administrative process has not

yet had the opportunity to fix specific effluent limita-

tions. Such a result would be inconsistent with the poli-

cy of the Act.

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

permit procedure urged by the Government is unduly

burdensome on business. If no effluent limitations have

yet been applied to an industry, a potential transgressor

should apply for a permit to discharge pollutants under

section 1342(a). The administrator may then set up op-

erating conditions until permanent effluent limitations

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

plication, in appropriate cases, should shield the appli-

cant from liability for discharge in the absence of a per-

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

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

(7th Cir. 1975). EPA cannot be expected to have antici-

pated every form of water pollution through the estab-

lishment of effluent limitations. The permit procedure,

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

A-27

fact, allow EPA to discover new sources of pollution for

which permanent effluent standards are appropriate.

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

was no pending permit to discharge pollutants; nor had

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

therefore, appears to be particularly compelling for broad

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

Frezzos, under their interpretation of the statute, could

conceivably have continued polluting until EPA promul-

gated effluent limitations for the compost operation. The

Government’s intervention by way of criminal indict-

ments brought to a halt potentially serious damage to the

stream in question, and has no doubt alerted EPA to pol-

lution problems posed by compost production. We there-

fore hold that the promulgation of effluent limitation

standards is not a prerequisite to the maintenance of a

criminal proceeding based on violation of section

1311(a) of the Act.

IV.

[4] The Frezzos next contend that there was insuffi-

cient evidence to convict them of the charges in the in-

dictment. They virtually concede that the Government

presented sufficient evidence to sustain Count Five.

However, defendants charge that the Government, inter

alia,’ had failed to prove willful or negligent discharges

of pollutants. We disagree because we are persuaded

that substantial evidence in the record supports all six

counts of the indictment.®

7. The defendants also argued that the Government failed to

produce sufficient evidence to identify them as the parties responsi-

ble for the discharges. We believe the district court correctly con-

cluded, 461 F.Supp. at 270-71, that sufficient evidence of identifica-

tion was produced at trial.

8. Judge Broderick stated in denying the defendants’ motions

for acquittal and a new trial:

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

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

dict as to each of the defendants and as to each of the six counts

of the indictment.

461 F.Supp. at 270.

A-28

The Government contended at trial that the dis-

charges giving rise to Counts One through Four of the

indictment were willful. To establish this claim, the Gov-

ernment relied on the samples collected on those four

occasions, the absence of rain on the dates in question,

and the elimination of other possible causes for the pol-

lution. The Frezzos maintain that the Government on

this evidence failed to establish a willful act. We dis-

agree. The jury was entitled to infer from the totality of

the circumstances surrounding the discharges that a

willful act precipitated them. The Government did not

have to present evidence of someone turning on a valve

or diverting wastes in order to establish a willful violation

of the Act.®

The Government's theory on Counts Five and Six

was that the discharges were negligently caused by the

inadequate capacity of the holding tank. Count Five was

amply supported by eyewitness testimony, samples of

the pollutants, evidence of rainfall and expert hydrologic

evidence of the holding tank's capacity. Count Six was

similarly supported by evidence of rainfall, samples, ex-

pert testimony and photographs of the holding tank

three days before the incident, showing it to be near ca-

pacity. The jury could properly have concluded that the

water pollution abatement facilities were negligently

maintained by the Frezzos and were insufficient to pre-

vent discharges of the wastes. We therefore conclude

that there was sufficient evidence to sustain the verdict

on all six counts.

9. Judge Broderick noted:

Testimony was presented by several witnesses that on

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

ants in this case had been investigated, visited and confronted

by a number of state and county employees concerning the fact

that the stream in question was being polluted by runoff from

the compost operation conducted by the defendants on the

Frezzo property.

461 F.Supp. at 270.

A-29

V. |

Defense counsel requested at trial that a special ver-

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

guilty verdict were returned, whether the jury found the

defendants guilty of a willful or a negligent violation un-

der each count. The trial judge denied the request. The

Frezzos maintain that this denial constitutes reversible

error. We cannot agree.

[5] We start with the proposition that special ver-

dicts are generally disfavored in criminal cases. United

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

cert, denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d

555 (1977); United States v. Jackson, 542 F.2d 403, 412

(7th Cir. 1976). There is the belief that in the long run

special verdicts are not favorable to defendants because

“(bly a progression of questions each of which seems to

require an answer unfavorable to the defendant, a reluc-

tant juror may be led to vote for a conviction which, in

the large, he would have resisted.” United States v.

Spock, 416 F.2d 165, 182 (2d Cir. 1969). See United

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

[6] The defendants maintain nevertheless, that it

was important for the court to know whether the dis-

charges were found to be willful or negligent under each

Count, in order to assess the sufficiency of the evidence

and for sentencing purposes. The Government, how-

ever, proceeded on a theory of willful discharge under

Counts One through Four and on a theory of negligent

discharge under Counts Five and Six. We have already

noted our agreement with the district court’s conclusion

that the evidence was sufficient to sustain each of the

counts on those theories. Hence, although a special ver-

dict might have been illuminating, there was no compel-

ling necessity for one in this case. Further, there is no

variance in the statutory penalty between willful and

negligent violations. It therefore would have been within

the judge’s discretion to sentence the defendants to the

statutory maximum had the jury returned a special ver-

A-30

dict finding the defendants guilty of negligent violations

only. Indeed, it appears that the judge might have done

so since he sentenced the defendants more severely un-

der the negligent counts.'° We therefore conclude that

the trial judge did not abuse his discretion in declining

to submit a special verdict in the instant case.

Appellants raise other contentions on appeal all of

which are without merit.'' We perceive no prejudice to

the defendants meriting reversal of the verdict and the

grant of a new trial. Accordingly, the judgment of the

district court will be affirmed.

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

the defendants were more heavily fined under Counts Five and Six.

11. Defendants contend that the trial judge improperly in-

structed the jury that they could be found guilty as individuals

when the indictment charged them with acting as corporate offi-

cers. The Government argued the case on the “responsible corpo-

rate officer doctrine” recognized by the Uinted States Supreme

Court in United States v Park, 421 U.S. 658, 95 SCt. 1903, 44

L.Ed.2d 489 (1974) and United States v. Dotterweich, 320 U.S.

277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). We have examined the

judge's charge and we perceive no error in the instruction to the

jury on this theory.

Defendants also contend that the district court erred in failing

to suppress the samples from the channel box because they were

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

property not onwed by the Frezzos. The district court held tht be-

cause defendants had no legitimate proprietary or possessory inter-

est in the neighboring property and because possession was not an

element of the offense charged, they lacked standing under the

fourth amendment to contest the seizure of the samples. The

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

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

the issue of standing from consideration in fourth amendment cases

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

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

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

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

cannot be vicariously asserted. We agree that defendants had no

proprietary or possessory interest in the searched premises nor was

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

rights that may be substantively asserted under the fourth amend-

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

A-31

APPENDIX C

UNITED STATES of America

Vv.

FREZZO BROTHERS, INC., Guido

Frezzo and James L. Frezzo.

Crim. No. 78-218.

United States District Court,

E. D. Pennsylvania.

June 27, 1980.

Petitions were filed seeking vacation of sentences

previously imposed upon petitioners following their con-

viction for discharging pollutants into navigable waters

without permit. The District Court, Raymond J.

Broderick, J., held that: (1) petitioners were not denied

effective assistance of counsel because their trial coun-

sel did not contend that their activities were exempt

from permit requirements of Federal Water Pollution

Control Act where the applicable regulations exempted

natural runoff of rainwater from agricultural activities

and did not exempt return flow of irrigation water, and

discharge caused by petitioner's business, the manufac-

ture of mushroom compost, emanated from concrete

holding tank erected to collect runoff from mushroom

compost piles being used in manufacture of the com-

post, and (2) petitioners’ due process rights were not vio-

lated on basis that applicable regulations failed to pro-

vide fair warning that petitioners’ pollution activities

were in violation of the Act.

Motions denied.

1. Criminal Law 641.13(2)

Petitioners, who had been found guilty of discharg-

ing pollutants into navigable waters without permit,

were not denied effective assistance of counsel because

their trial counsel did not contented that their activities

were exempt from permit requirements of Federal

Water Pollution Control Act where the applicable regula-

A-32

tions exempted natural runoff of rainwater from agricul-

tural activities and did not exempt return flow of irriga-

tion water, and discharge caused by petitioner's

business, the manufacture of mushroom compost, ema-

nated from concrete holding tank erected to collect

runoff from mushroom compost piles being used in

manufacture of the compost. Federal Water Pollution

Control Act Amendments of 1972, §§ 301(a), 309(c), 33

U.S.C.A. §§ 1311(a), 1319(c); 28 U.S.C.A. § 2255.

2. Constitutional Law 278.1

Convictions for discharge of pollutants into naviga-

ble waters without permit did not violate due process on

basis that activities were exempt from permit require-

ments of Federal Water Pollution Control Act where ap-

plicable regulation did not exempt the activities from

permit requirements. Federal Water Pollution Control

Act Amendments of 1972, §§ 301(a), 309(a), 309(c), 33

U.S.C.A. §§ 1311(a), 1319(c); 28 U.S.C.A. § 2255;

U.S.C.A. Const. Amend. 5.

3. Constitutional Law 278.1

Due process rights of petitioners, who had been

found guilty of discharging pollutants into navigable wa-

ters without permit, were not violated on basis that sec-

tions of applicable regulations failed to provide fair warn-

ing that petitioners’ pollution activities were in violation

of Federal Water Pollution Control Act. Federal Water

Pollution Control Act Amendments of 1972, §§ 301(a),

309(c), 33 U.S.C.A. §§ 1311(a), 1319(c); 28 U.S.C.A. §

2225.

A-33

John Rogers Carroll, Thomas Colas Carroll, Carroll,

Creamer, Carroll & Duffy, Philadelphia, Pa., for plain-

tiffs.

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

U.S. Atty., Philadelphia, Pa., for defendant.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Petitioners James Frezzo, Guido Frezzo, and Frezzo

Brothers, Inc. (Frezzo Bros.) were found guilty by a jury

of discharging pollutants into navigable waters of the

United States without a permit in violation of the Federal

Water Pollution Control Act, 33 U.S.C.A. §§ 1311(a),

1319(c) (Act). James Frezzo and Guido Frezzo have filed

petitions under 28 U.S.C.A. § 2255 or, in the alternative,

for writs of error coram nobis, for vacation of the sentences

imposed upon them by this Court. Frezzo Bros. has filed a

petition for a writ of error coram nobis seeking the same

relief. The petitioners claim that they were exempt from

the permit requirements of the Act by virtue of 40 C.F.R.

§125.4(i) (1978), which was in effect at the time the peti-

tioners were indicated and convicted, but has subse-

quently been revised.

. Petitioners did not raise this issue at the time of their

trial, nor was the issue raised in pre-trial or post-trial mo-

tions or on direct appeal. See United States v. Frezzo

Brothers, Inc., 461 F. Supp. 266 (E.D.Pa.1978), aff'd, 602

F.2d 1123 (3d Cir. 1979), cert. denied, __U.S.__ 100 S.Ct.

1020, 62 L.Ed.2d 756 (1980). After their convictions were

affirmed by the Third Circuit, petitioners retained their

present counsel, who petitioned the Third Circuit for a

rehearing on the ground that the petitioners’ activities

were exempt from the permit requirements of the Act by

virtue of 40 C.F.R. § 235.4(i). The Third Circuit denied

the petition for rehearing without addressing its merits. A

petition for a writ of certiorari was denied by the Supreme

Court, after which petitioners filed these motions for relief

under section 2255 or for a writ of error coram nobis. We

A-34

heard oral argument on these motions and for the reasons

hereinafter set forth, the petitioners’ motions will be de-

nied.

The evidence at the trial of this action showed that

Guido Frezzo and James Frezzo were the president and

secretary, respectively, of Frezzo Bros., a family business

organized for the purpose of growing mushrooms and

manufacturing mushroom compost, which is necessary

for growing mushrooms. The primary ingredient of mush-

room compost is horse manure. The petitioners built a

large concrete holding tank on their property to catch all of

the runoff from the mushroom compost pile. The petition-

ers’ property contains two runoff systems. One system

gathers the runoff from the compost pile into the holding

tank described above and recirculates this runoff back to

the compost pile by a system of pumps. The other system

gathers the storm water runoff from the property and

empties this storm water runoff into a pipe that runs ap-

proximately 200 feet from the Frezzo Bros. property into

an unnamed branch of a creek which ultimately runs into

the Delawre River. On each of the six dates charged in the

indictment, runoff from the compost system made its way

into the storm water runoff system and was permitted to

be discharged into the branch of the creek. Samples of the

runoff taken at these times contained pollutants that may

not be discharged under the Act without a permit. There

was uncontradicted testimony that none of the petitioners

had ever been issued a permit by the EPA.

The administrative history of these regulations, as

reported in the Federal Register, 41 Fed.Reg. 7963

(1976), explicitly states that the sole intent of sections

125.4(i) and 125.53 of these regulations was to make it

clear that the return flow of water used for irrigation pur-

poses which contained pollutants was not exempt from

the permit requirements of the Act. These sections of

the regulations specifically subjected the return flow of

irrigation water to the permit requirements of the Act,

A-35

and exempted the natural runoff of rain water from

these permit requirements.

The record in this case clearly shows that the dis-

charge of pollutants for which the petitioners were con-

victed was not from the natural runoff of rain water from

the petitioners’ land. These discharges emanated from a

concrete holding tank which was erected to collect the

runoff from mushroom compost piles being used by the

petitioners for the purpose of manufacturing compost.

The various chemists and physical scientists who testi-

fied at the trial of this case classified the samples of the

discharges into the stream as “sewage” because the re-

sults of the tests conducted by them showed that these

samples contained higher concentrations of pollution

producing chemicals and bacteria than untreated hu-

man sewage. There is no doubt that “sewage” is specifi-

cally included in the definition of “pollutant” as set forth

in the Act. There was also testimony at the trial that as

early as 1970 the petitioners had been investigated, vis-

ited, and confronted by a number of state and county

employees concerning the fact that the stream in ques-

tion was being polluted by “sewage” from their mush-

room composting operations.

' We therefore find that pursuant to United States v.

DeFalco, No. 78-2126 (3d Cir. Dec. 28, 1979), the trial

counsel for the petitioners exceeded the standard of

“customary skill and knowledge which normally prevails

at the time and place,” and a the petitioners have

failed to show any “specific prejudice” in that sections

125.4(i) and 125.53 of the regulations do not and did not

exempt the activities of the petitioners from the permit

requirements of the Act.

[2] The petitioners also contend that their convic-

tions violated due process because these sections of the

EPA's regulations excluded their discharges into the

stream from the permit requirements of the Act. Since

we have already determined, however, that these sec-

tions of the regulations do not and did not exempt the

A-36

discharges of the petitioners from the permit require-

ments of the Act, this claim is without merit.

[3] The final contention that we must address is

whether the petitioners’ due process rights were violated

because sections 125.4(i) and 125.53 of the regulations

failed to provide the petitioners fair warning that their

pollution activities were in violation of the Act. Petition-

ers contend that these sections of the regulations de-

prived them of fair warning that their conduct was crim-

inal because they purported “to give notice to persons of

common intelligence . . . that the . . . petitioners’ activi-

ties were excluded from the Act’s criminal sanctions.” In

essence, the petitioners contend that they were “affirma-

tively misled” by these regulations into believing that the

Act did not require them to procure a permit. United

States v. Pennsylvania Industrial Chemical Corpora-

tion, 411 U.S. 655, 93 S.Ct. 1804, 1816, 36 L.Ed.2d 567

(1973). See Cox v. Louisiana, 85 S.Ct. 476 (1965); Raley

v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344

(1959). Our review of the entire record in this case, how-

ever, reveals that the petitioners have never attempted to

establish that they relied on these regulations in decid-

ing not to apply for a permit. In fact, these regulations

were never mentioned in the record until the petitioners

filed a motion for a rehearing in the court of appeals after

their original appeal had been decided adversely to

them. Since the petitioners have not shown that they

ever relied on these regulations, they cannot claim that

the regulations would have led them to believe that their

business activities were exempt from the permit require-

ments of the Act. United States v. United States Steel

Corp., 482 F.2d 439 (7th Cir. 1973); Pennsylvania In-

dustrial, supra. Furthermore, as we pointed out in

United States v. Frezzo Bros., Inc., 461 F.Supp. 266

(E.D. Pa. 1978), section 301(a) of the Act, 33 U.S.C.A.

§1311(a), makes it a crime to discharge pollutants with-

out a permit, and the Act does not require that one who

violates the Act receive any warning or notice that his

actions are in violation of the Act.

A-37

We will therefore deny the petitioners’ motion for

relief under section 2255 or, alternatively, for writs of er-

ror coram nobis.

Erroll THIELECKE, et al., Plaintiffs,

v.

UNITED STATES of America et

al., Defendants.

No. 79-1452C(2).

United States District Court,

E. D. Missouri, E. D.

June 30, 1980.

Plaintiffs, whose predecessors in title were formerly

owners in fee simple of certain land appropriated by

United States for use in defense related activities in con-

nection with World War II, brought suit to quiet title, set

aside deeds, and define rights of themselves and all oth-

ers similarly situated in the real estate. The District

Court, Nangle, J., held that state university qualified as a

“state or local government” under Surplus Property Act

and was entitled to priority under the Act vis-a-vis plain-

tiffs’ predecessors in title with respect to sale of the land

in question.

Motion to dismiss granted.

1. United States 58(4)

University of Missouri was a “state or local govern-

ment” under Surplus Property Act and its regulations

and was thus entitled to priority under the Act vis-a-vis

plaintiffs’ predecessors in title with respect to sale of cer-

tain land, which had been appropriated by United States

for use in defense related activity in connection with

World War II. Surplus Property Act of 1944, §§ 1 et sea.,

5, 12, 13, 23, 50 U.S.C. App. (1946 Ed.) §§ 1611 et seq.,

1614, 1621, 1622, 1632; V.A.M.S. §§ 172.010-172.030,

172.050; V.A.M.S.Const. Art. 9, § 9(a).

See publication Words and Phrases for other judicial con-

structions and definitions.

A-38

2. Administrative Law and Procedure 390

Regulations promulgated to enforce statute must, in

order to be valid, be consistent with statute.

Stephen H. Gilmore and Robert A. Crowe, St. Louis,

Mo., for plaintiffs.

Donald U. Beimdiek, Thomas E. Wack, Thomas B.

Weaver, St. Louis, Mo., for Conservation Comm. State of

Missouri, et al.

Jackson A. Wright, James S. Newberry, Ted D.

Ayres and Robert L. Ross, Columbia, Mo., for Curators,

U. of Missouri, et al.

Anne T. Shapleigh, Asst. U.S. Atty., U.S. Dept. of

Justice, St. Louis, Mo., for United States of America.

A-39

APPENDIX D

UNITED STATES of America

v.

FREZZO BROTHERS, INC.

UNITED STATES of America

v.

FREZZO, Guido

UNITED STATES of America

v.

FREZZO, JAMES L.

Frezzo Brothers, Inc., Guido Frezzo and

James L. Frezzo, Appellants.

No. 80-2141.

United States Court of Appeals,

Third Circuit.

Argued Jan. 20, 1981.

Decided March 4, 1981.

As Amended March 18, 1981.

Rehearing Denied May 11, 1981.

Petitioners, who were convicted of discharging pol-

lutants into navigable waters without a permit, appealed

from an order of the United States District Court for the

Eastern District of Pennsylvania, Raymond J. Broderick,

J., 491 F.Supp. 1339, which denied their petitions for va-

cation of sentences. The Court of Appeals, Van Dusen,

Senior Circuit Judge, held that: (1) discharges of a com-

post runoff from a holding tank were not from agricul-

tural point sources within meaning of applicable regula-

tion and therefore discharge of such pollutants into

navigable waters did not require a permit assuming the

pollution was agricultural, and (2) conviction for dis-

charging pollutants into navigable waters without a per-

ete

A-40

mit could not stand without a determination of whether

pollution was from agricultural activities and not from

agricultural point sources.

Reversed and remanded.

1. Criminal Law — 1181

Court of Appeals will not affirm a criminal convic-

tion for discharging pollutants into navigable rivers

without a permit if conduct is not illegal under plain lan-

guage of applicable regulations. Federal Water Pollution

Control Act Amendments of 1972, §§301(a), 309(c), 33

U.S.C.A. §§1311(a), 1319(c).

2. Health and Environment — 25.7(6)

Discharges of a compost runoff from a holding tank

were not from agricultural point sources within meaning

of applicable regulation and therefore discharge of such

pollutants into navigable waters did not require a permit

assuming the pollution was agricultural. Federal Water

Pollution Control Act Amendments of 1972, §402, 33

U.S.C.A. §1342.

3. Health and Environment — 25.7(24)

Conviction for discharging pollutants into navigable

waters without a permit could not stand without a deter-

mination of whether pollution was from agricultural ac-

tivities and not from agricultural point sources. Federal

Water Pollution Control Act Amendments of 1972,

§§301(a), 309(c), 33 U.S.C.A. §§1311(a), 1319(c).

Thomas Colas Carroll (argued), John Rogers Car-

roll, Carroll & Carroll, Philadelphia, Pa., for appellants.

Bruce J. Chasan, Asst. U. S. Atty. (argued), Peter F.

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

Chief, Appellate Section, Philadelphia, Pa., for appellee.

Before GIBBONS, VAN DUSEN and WEIS, Circuit

Judges.

A-41

OPINION OF THE COURT

VAN DUSEN, Senior Circuit Judge.

Guido and James Frezzo and the corporation Frezzo

Brothers, Inc., petitioned under 28 U.S.C. §2255

(1976)! for relief from their convictions for discharging

pollutants into navigable waters without a permit. The

district court denied the petitions. United States v.

Frezzo Bros., Inc., 491 F.Supp 1339 (E.D.Pa. 1980).?

We have jurisdictitn under 28 U.S.C. §1291 (1976) to

decide the appeal from this final order. We reverse the

denial of the petitions and remand for further proceed-

ings.

This court’s prior opinion in United States v. Frezzo

Bros., Inc., 602 F.2d 1123, 1124-25 (3rd Cir. 1979,) cert.

denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756

(1980), which affirmed the convictions, sets out in detail

the facts which led to the original trial. Petitioners grew

mushrooms and prepared compost for growing mush-

rooms. Petitioners stated that after compost is prepared,

it is pasteurized to remove ammonia, and then mush-

rooms are grown in the pasteurized compost. Joint

Memorandum of Law in Support of Motions for Collat-

eral Relief, A-23, A-39. On certain dates in 1977-1978,

their holding tank containing runoff from the compost

overflowed due to heavy rains. The overflow discharged

manure and other pollutants through a runoff system

into a creek which joins the Delaware River. A jury con-

victed each of the petitioners on all six counts of dis-

charging pollution “from mushroom compost manufac-

turing operations”* without a permit in violation of 33

U.S.C. §§1311(a) and 1319(c) (1976).4

1. The corporation, as opposed to the individual petitioners, pe-

titioned for a writ of error coram nobis.

2. This opinion details the procedural history of the case. Id. at

1340.

3. Indictment, United States v. Frezzo Brothers, Inc., 491

F.Supp. 1339 (E.D.Pa.1980).

4. The first district court opinion after the trial, which denied

defendants’ motions for acquittal or a new trial, provides further

A-42

The petitions now on appeal claimed that the dis-

charges from the holding tank did not require a permit

due to the exclusion in 40 C.F.R. §§125.4(i) and

125.53(a) (1978) (repealed).° These regulations

exempted certain agricultural pollution from the statu-

tory permit requirement.® The Government moved for

summary judgment.’ The district court did not explicitly

grant the motion for summary judgment but it denied

NOTE — (Continued)

background facts. United States v. Frezzo Brothers, Inc., 461

F.Supp. 266 (E.D.Pa.1978), aff'd, 602 F.2d 1123 (3rd Cir. 1979),

cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980).

5. The Environmental Protection Agency (EPA) repealed

these regulations on June 7, 1979, in 44 F.R. 32948, effective Au-

gust 13, 1979, but they were in effect during the alleged discharges

of pollutants. For the text of such regulations, see p. 61.

6. See note 14 infra. Petitioners never raised the agricultural

exemption at the original trial or on direct appeal to this court. They

first raised it in a petition for rehearing before the original panel,

which denied the petition on October 22, 1979. Appellee’s brief,

Exh. B. The section 2255 petition alleged that petitioners’ original

counsel was incompetent under Sixth Amendment standards in

failing to raise the exemption at the first trial. Because of this Sixth

Amendment issue, consideration of the agricultural exemption for

the first time on this collateral attack is required.

7. It conceded, solely for the decision on that motion, that the

pollution was agricultural, and argued that the petitioners neverthe-

less were required to obtain a permit.

“At this stage the court is not concerned with whether or

not the Frezzo compost manufacturing operation is an ‘agricul-

tural’ activity. We may assume that it is. The Government's po-

sition is that an agricultural point source is subject to the per-

mit requirement of the Act, 33 U.S.C. §1342. If the court

construes the regulation in issue in the manner urged by the

defendants, then an evidentiary hearing will be required to af-

ford the defendants an opportunity to prove that their compost

operations constitute ‘agriculture.’ ”

Government's Memorandum of Law in Support of Motions for Sum-

mary Judgment and Dismissal at 7 (A-51).

A-43

the petitions without considering any evidence.® It did

not decide whether the pollution was agricultural.®

We decide on this appeal only whether the convic-

tions for the discharges from the holding tank, assuming

this pollution was from agricultural activities and not

from agricultural point sources (see text of regulations

on page 61), were consistent with the literal words of the

regulations. We conclude that, in light of such assump-

tion, the convictions were not consistent with the regu-

lations. Since we remand for the district court to deter-

mine whether the pollution was agricultural, see below,

we do not decide the underlying Sixth Amendment

claim on this appeal. See note 6 supra.

[1] This court would not affirm criminal convic-

tions if the conduct was not illegal under the plain lan-

guage of the applicable regulations.'!° Thus, we turn to

8. See note 16 infra.

9. The court stated:

“Although there is a question as to whether the manufac-

turing of mushroom compost is an ‘agricultural activity,’ there

is no question that the regulations do not and did not exempt

the discharge of the pollutants. .. .”

Frezzo Bros. 491 F.Supp. at 1342.

10. The Government argues that the plain language of the reg-

ulations conflicts with the statute. Since this is a criminal case, peti-

tioners were entitled to rely on the language of the regulations.

Those rules must have provided fair notice of what conduct violated

the law. Therefore, we need not decide whether the regulations

defining agricultural point sources conflicted with the statutory

definition of “point source” or whether the regulations were invalid

for that reason under Natural Resources Defense Council, Inc. v.

Costle, 568 F.2d 1369 (D.C. Cir. 1977). The statute reads:

Rte The term ‘point source’ means any discernible, con-

container, rolling stock, concentrated animal feeding operation.

or vessel or other floating craft, from which pollutants are or

A-44

the literal words of the EPA regulations. These rules ex-

cluded agricultural pollution, except for discharges from

“agricultural point sources,” from the permit require-

ment. Section 125.4(i) of the regulations stated:

“The following do not require a NPDES permit:

“Gj) Water pollution from agricultural and

silvicultural activities, including run-off from or-

chards, cultivated crops, pastures, rangelands, and

forest lands, except that this exclusion shall not ap-

ply to the following:

“(3) Discharges from agricultural point sources

as defined in §125.53,...” Section 125.53 read:

Ҥ125.53 Agricultural activities.

“(a) Definitions. For the purpose of this section:

“(1) The term ‘agricultural point source’

means any discernible, confined and discrete con-

veyance from which any irrigation return flow is

discharged into navigable waters.

“(2) The term ‘irrigation return flow’ means

surface water, other than navigable waters, contain-

ing pollutants which result from the controlled ap-

plication of water by any person to land used pri-

marily for crops, forage growth, or nursery

operations.

“(3) The term ‘surface water’ means water that

NOTE — (Continued)

may be discharged. This term does not include return flows

from irrigated agriculture.

33 U.S.C.A. §1362(14) (1978). Pub. L.No.95-217, §33(b), 91 Stat.

1577 (1977), added the last sentence. The amendment effectively

eliminated the distinction in 40 C.F.R. §125.53 (1978) (repealed)

by also excluding irrigation return flows from the permit require-

ment.

We do not decide whether the Government's position on the

meaning of the statute and the regulations would prevail in a civil

action for an injunction.

A-45

flows exclusively across the surface of the land from

the point of application to the point of discharge.”

[2] All parties agree that the discharges of manure

from the holding tank were not irrigation return flows as

defined in section 125.53(2). The literal language of sec-

tion 125.53(1) stated that conveyances of irrigation re-

turn flows were the only agricultural point sources.

Thus, the system discharging the manure was not an

agricultural point source under the regulations. Section

125.4(i) appeared to state that no agricultural pollution

required a permit with a single exception: pollution from

agricultural point sources. Since petitoners’ discharges

were not from agricultural point sources, the pollution

would not have required a permit (assuming the pollu-

tion was agricultural).

The district court avoided the effect of this language

in the regulations by relying on the administrative his-

tory.'! It held that the holding tank was an agricultural

point source even though the tank was not conveying ir-

rigation return flows. We do not believe that the admin-

istrative history supports this holding.'!? Statements ac-

companying the proposed rules (which later become

effective) read:

11. “The administrative history of these regulations, as re-

ported in the Federal Register, 41 Fed. Reg. 7963 (1976), explicitly

states that the sole intent of sections 125.4(i) and 125.53 of these

regulations was to make it clear that the return flow of water used

for irrigation purposes which contained pollutants was not exempt

from the permit requirements of the Act. These sections of the regu-

A-46

“INTENT OF REGULATIONS

“The intent of the regulations is to exclude

from the NPDES permit program all natural runoff

from agricultural land which results from precipita-

tion events. Because most water pollution related to

agricultural activities is caused by runoff resulting

from precipitation events and is nonpoint in nature,

it is not and should not be subject to the NPDES

permit program as it has been administered to

date.”

41 F.R. 7694 (1976). Precipitation apparently was a

cause of the runoff from the holding tank. Frezzo Bros.,

602 F.2d at 1125. Other statements in the Federal Reg-

ister indicate that, under the regulations, all agricultural

pollution was caused by either (1) precipitation or (2) ir-

rigation return flows.

“Thus, in formulating the criteria for defining

agricultural point sources EPA has specifically ex-

cluded those sources that may be furrows, ditches,

and drains channeling natural runoff, and specifi-

cally included irrigation return flow ditches and

drains that convey water resulting from its con-

trolled application by man to navigable waters.

When water pollution from irrigation ditches results

from precipitation events, that pollution is nonpoint

in nature. However, when discharges from irriga-

tion ditches result from the controlled application of

water by any person, that pollution is considered a

Se eee eee

Id.'* This passage sets out two categories of agricultural

pollution. The district court appears to have created a

third category of agricultural pollution: discharges not

13. When the regulations became effective, the Administrator

wrote:

“EPA took the approach in the proposed regulations for ag-

ricultural activities of distinguishing water applied to the land

A-47

resulting from irrigation return flows yet still requiring a

permit. We decline to uphold the denial of the section

2255 petitions on this record, since that denial was

based on this third category. We hold that, if petitioners’

discharges were agricultural, pollution, then petitioners

needed no section 402 permit under the language in the

former regulations. '4

[3] None of the parties has raised on this appeal the

issue whether the pollution was in fact agricultural;!5

NOTE —- (Continued)

through the control of any person (irrigated farming) from

water reaching the land as a result of precipitation (dry land

farming). Thus where the application of water by any person to

agricultural land results in the discharge of pollutants into

navigable waters, such discharge is subject to the NPDES per-

mit program; where the discharge of pollutants is induced by

precipitation, the permit program is not applicable.

41 F.R. 28494—95 (1976).

14. The only permit requirement we consider here is for the

specific permits under §402 of the Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C. §1342 (1976).

15. Appellants’ “STATEMENT OF THE ISSUES PRE-

SENTED” reads:

“Did the district Court Err in Holding, On Appellants’ Mo-

tion For Post-Conviction Relief, That Appellants’ Activities

Leading To Their Convictoins For Discharge Of Water Pollut-

ants Without A Permit Were Not Colorably Within The ‘Agri-

cultural Exclusion’ To The Permit Requirement And, There-

fore, Appellants Were Not Denied The Effective Assistance of

Counsel By The Failure Of Trial Counsel To Call The Court's

Attention To The Exclusion?

“Appellant's Joint Brief at 2. Appellee’s “QUESTIONS PRE-

SENTED" states:

“1. Was the discharge of pollutants from appellants’

undisputed point source, albeit one which is arguably ‘agricul-

tural’ in nature, excluded from the permit program under §402

of the Clean Water act by virtue of either §208 of the Act or the

regulation at 40 C.F.R. §125.4(i) (1978)?

“2. Were appellants denied effective assistance of counsel

by virtue of the fact that their trial counsel did not raise the

foregoing issue?”

Appellee’s Brief at 2.

A-48

the parties have given no indication that they wish this

court to decide the issue. The petitions in the district

court raised this issue, but that court never decided

whether the pollution was agricultural. The district

court has heard no evidence’® and this is an issue of fact.

Deciding the issue against either party would be unfair

without giving them an opportunity to present evidence

and develop a record. Since the record at this stage’’ is

insufficient for this panel to decide whether agricultural

pollution was present here, we will remand the case for

further proceedings.

The judgment of the district court will be reversed

and the case remanded for further proceedings consist-

ent with this opinion.

Kalman R. HETTLEMAN, Secretary, Department of Hu-

man Resourses, and William G. Sykes, Acting Direc-

tor, Maryland Social Services Administration, Appel-

lees,

v.

Robert BERGLAND, Secretary, U.S. Department of Agri-

culture; Carol Tucker, Foreman, Assistant Secretary,

U.S. Department of Agriculture; Nancy Snyder, Depu-

ty Administrator for Family Nutrition Programs,

Food and Nutrition Service, U.S. Dept. of Agriculture;

Ray Pugh, Deputy Administrator for Financial Man-

agement and Ralph Picone, Regional Director, Food

Stamp Program, Mid Atlantic Region, U.S. Depart-

ment of Agriculture, Appellants.

No. 80-1076.

United States Court of Appeals,

Fourth Circuit.

Argued Nov. 10, 1980.

Decided Feb. 17, 1981.

16. The only evidence in this section 2255 civil proceeding is

an affidavit. A-53 to A-56. The only part of the affidavit relevant to

the agricultural issue states “I was aware that three other compa-

nies that manufactured compost, Frezzo Borthers, Inc., . . . . " A-56

at No. 8.

17 See n.16 supra.

A-49

In an action by state officials against the Secretary

of the Department of Agriculture and other federal offi-

cials, of the United States District Court for the District

of Maryland at Baltimore, Joseph H. Young, J., 480

F.Supp. 782, entered summary judgment to the State of

Maryland. On appeal by the federal defendants, the

Court

A-50

APPENDIX E

UNITED STATES of America

v.

FREZZO BROTHERS, INC., “uido

Frezzo, James L. Frezzo.

Crim. No. 78-218.

United States District Court,

E. D. Pennsylvania.

July 19, 1982.

As Amended Aug. 31, 1982.

Defendants, who had been convicted of discharging

pollutants into navigable waters without a permit,

sought vacation of sentences. Following denial of relief,

491 F.Supp. 1339, and reversal and remand by the

United States Court of Appeals for the Third Circuit, 642

F.2d 59, the District Court, Raymond J. Broderick, J.,

held that: (1) mushroom composting operation was not

an “agricultural activity” within meaning of regulation

providing exemption from permit requirement of Fed-

eral Water Pollution Control Act Amendments where,

among other things, approximately 90 percent of de-

fendants’ compost production was sold to other mush-

room growers; (2) even if the composing operation was

agricultural activity, the resulting pollution emanated

from an “agricultural point source” and thus was not

within the exemption; (3) further, regulation did not en-

title defendants to relief where they never relied on the

regulation; and thus (4) defendants were not denied ef-

fective assistance of counsel for failure to raise the regu-

latory defense.

Petitions denied.

1. Criminal Law 997.15(2)

In postconviction proceeding, petitioner bears the

burden of persuasion to show the infirmity of his convic-

tion. 28 U.S.C.A. §2255.

A-51

2. Health and Environment 25.7(24)

Parties claiming exception, in criminal prosecution,

from permit requirements of the Federal Water Pollution

Control Act Amendments of 1972 had burden to demon-

strate that they fell within the exception. Federal Water

Pollution Control Act Amendments of 1972, §§301(a),

309(c), 33 U.S.C.A. §§1311(a), 1319(c).

3. Criminal Law 997.2

Petitioner seeking postconviction relief must show a

reason for his failure to raise collateral challenge at trial

and appeal and must show that he was prejudiced by the

procedural shortcoming. 28 U.S.C.A. §2255.

4. Criminal Law 641.13(2)

Failure to raise a defense did amount to ineffective

assistance of counsel where the defense was without

merit. U.S.C.A. Const. Amend. 6.

5. Health and Environment 25.7(24)

Defendants could not escape liability for willfully or

negligently discharging pollutants into navigable waters

without a permit on ground of regulation providing ex-

emption for pollution from agricultural activities, where

defendants were not aware of the regulation and never

claimed that they relied thereon when they made deci-

sion to pollute creek. Federal Water Pollution Control

Act Amendments of 1972, §§301(a), 402, 402(f), 33

U.S.C.A. §§1311(a), 1342, 1342(f).

6. Health and Environment 25.7(24)

So long as defendants dumped pollutants into a

navigable stream without a permit, their view as to legal-

ity of their actions was irrevelant; applicable statute does

not require the government to prove that defendants

specifically intended to violate the statute. Federal

Water Pollution Control Act Amendments of 1972, §301,

33 U.S.C.A. §1311.

A-52

7. Health and Environment 25.7(13)

Mushroom composting operation was not an “agri-

cultural activity” within meaning of regulation providing

exemption from permit requirement of Federal Water

Pollution Control Act Amendments where, among other

things, approximately 90 percent of defendants’ compost

production was sold to other mushroom growers. Fed-

eral Water Pollution Control Act Amendments of 1972,

§§301, 402, 33 U.S.C.A. §§1311, 1342.

See publication Words and Phrases for other

judicial constructions and definitions.

8. Health and Environment 25.7(13)

Final analysis of whether activity falls within “agri-

cultural activity” exclusion of regulation from permit re-

quirements of the Federal Water Pollution Control Act

Amendments is ultimately a question of law which the

court must decide, Federal Water Pollution Control Act

Amendments of 1972, §§301(a), 309(c), 33 U.S.C.A.

§§1311(a), 1319(c).

9. Health and Environment 25.7(13)

Even if mushroom composting conducted by de-

fendants was agricultural activity, pollution discharge

permit would be required under the Federal Water Pol-

lution Control Act Amendments on ground that the pol-

lution emanated from an “agricultural point source”

within meaning of regulation, since defendants used

water, in controlled application, to achieve the proper

mixture for creating compost, with result that water ac-

cumulated in catch basin and discharged into stream

was “irrigation return flow.” Federal Water Pollution

Control Act Amendments of 1972, §§301(a), 309(c), 33

U.S.C.A. §§1311(a), 1319(c).

See publication Words and Phrases for other

judicial construction and definitions.

A-53

10. Criminal Law 641.13(1)

In order to establish claim of ineffective assistance

of counsel, defendants must show that performance of

counsel fell below that customary skill and knowledge

which normally prevails in the area and that they were

prejudiced as a result of trial counsel's failure. U.S.C.A.

Const. Amend. 6.

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

Atty., Philadelphia, Pa., for plaintiff.

John Rogers Carroll, Thomas Colas Carroll, Philadel-

phia, Pa., for defendants.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Defendants Guido Frezzo, James L. Frezzo, and

Frezzo Brothers, Inc. (hereinafter “Frezzo Brothers”)

have petitioned this Court pursuant to 28 U.S.C. §2255

to vacate and set aside their sentences pursuant to their

convictions for discharging pollutants into navigable wa-

ters without a permit.'

The defendants were found guilty by a jury on all

six counts of an indictment charging them with willfully

or negligently discharging pollutants into navigable wa-

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

Federal Water Pollution Control Act as amended in 1972

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

subsequently filed a motion for judgment of acquittal or

1. The corporation, Frezzo Brothers, Inc., as distinguished

from individual petitioners Guido and James Frezzo, petitioned for a

writ of error coram nobis. Such petitions have generally been con-

sidered as petitions to vacate sentence pursuant to 28 U.S.C. §2255.

See, e.g., United States v. Snead, Cr. No. 76-502 (E.D. Pa. 1981);

Moore v. United States, 329 F.2d 821, 822 (8th Cir. 1964), cert. de-

nied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964); Jenkins v.

United States, 325 F.2d 942, 945 (3d Cir. 1963), and the corpora-

tion's petition has been so considered in the history of this case. See

United States v. Frezzo Brothers, Inc., 642 F.2d 59 (3d Cir. 1981).

A-54

in the alternative for a new trial. In their motions, on

which the Court heard oral argument, the defendants

contended:

(A) That the Court erred in denying the de-

fendants’ pretrial motion to dismiss the indictment

for failure of the Administrator of the Environmen-

tal Protection Agency (EPA) either to notify the de-

fendants of alleged violations or to institute a civil

suit against them, prior to the institution of criminal

proceedings;

(B) That the Ovourt erred in denying the de-

fendants’ pretrial motion to dismiss the indictment

on the ground that there were no effluent standards

applicable to defendants; and

(C) That there was insufficient evidence pre-

sented to prove that the alleged discharge of pollut-

ants was caused either willfully or negligently by

any of the defendants, that any of the defendants

discharged the pollutants, that the individual de-

fendants were either owners or corporate officers of

Frezzo Brothers at the time of the alleged offenses,

and that Frezzo Brothers owned the property in

question or operated the holding tank in question at

the time of the alleged offenses.

Finding no merit in these contentions, this Court

denied the motions. The Court imposed the following

sentences: thirty days imprisonment and a $25,000 fine

for both Guido Frezzo and James L. Frezzo, and a

$50,000 fine for Frezzo Brothers, Inc. 461 F.Supp. 266,

268 (E.D. Pa. 1978). The Court’s judgment was af-

firmed by the Third Circuit, 602 F.2d 1123 (3d Cir.

1979). Rehearing was denied, and defendants sought

certiorari, which was also denied, 444 U.S. 1074, 100

S.Ct. 1020, 62 L.Ed.2d 756 (1980). Defendants had ob-

tained new defense counsel prior to filing the aforesaid

and instant petitions. In these petitions, the defendants

A-55

raised for the first time the argument that they were

exempt from 33 U.S.C. §1311(a), which makes its un-

lawful to discharge pollutants into navigable waters

without a permit. Defendants contend that they were

exempt by virtue of 40 C.F.R. §125.4(i) (1978), which

was in effect at the time the petitioners were indicted

and convicted but has subsequently been revised. The

government moved for dismissal pursuant to Fed. R.

Civ. P. 12(b)(6), contending that petitioners had failed to

state a claim upon which relief could be granted. This

Court granted the government's motion to dismiss, 491

F.Supp. 1339.

Defendants appealed the dismissal to the Third Cir-

cuit, which reversed the dismissal and remanded to this

Court for further factual inquiry regarding the status of

defendants’ business operation and its characterization

pursuant to 40 C.F.R. §125.4(i) and for further consider-

ation of the petitions, 642 F.2d 59 (3d Cir. 1981). For the

reasons hereinafter set forth, the Court will enter an

Order denying defendants’ petitions for relief.

{1, 2] The defendants, in order to obtain relief pur-

suant to 28 U.S.C. §2255 must show that their convic-

tion and sentence is in some way defective because it

was unconstitutional, illegal, or “otherwise subject to

collateral attack,” 28 U.S.C. §2255. The petitioner bears

the burden of persuasion to show the infirmity of his

conviction. See Sanders v. United States, 373 U.S. 1, 83

S.Ct. 1068, 10 L.Ed.2d 148 (1963); United States v.

Bremer, 207 F.2d 247 (9th Cir. 1953); Walden v. United

States, 418 F.Supp. 386 (E.D. Pa. 1976). Here, the de-

fendants claim the protection of a regulation which they

allege exempted them from the statute which the jury

found beyond a reasonable doubt that they violated. As

parties claiming this exception, they bear the burden to

demonstrate that they fall within the exception. See

United States v. Cianciulli, 482 F.Supp. 585, 613 (E.D.

Pa. 1979), aff'd 624 F.2d 1091 (3d Cir. 1980), cert. de-

.

» Wey

A-56

nied, 449 U.S. 1079, 101 S.Ct. 859, 66. L.Ed. 2d 802

(1981); United States v. Rowlette, 397 F.2d 475 (7th

Cir. 1968).

{3,4] As the United States Supreme Court re-

cently stated in United States v. Frady, —— U.S. ——,

102 S.Ct. 1584, 71 L.Ed.2d 816 (1982):

Once the defendant’s chance to appeal has been

waived or exhausted, however, we are entitled to

presume he stands fairly and finally convicted, es-

pecially when, as here, he already has had a fair op-

portunity to present his federal claims to a federal

forum. Our trial and appellate procedures are not so

unreliable that we may not afford their completed

operation any binding effect beyond the next in a

series of endless post-convictic collateral attacks.

To the contrary, a final judgment commands re-

spect.

For this reason, we have long and consistently af-

firmed that a collateral challenge may not do service

for an appeal.

—— U.S. at ——, 102 S.Ct. at 1592 (citations omitted).

See also, United States v. Addonizio, 442 U.S. 178, 184,

99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979). In Frady,

the Court held that a convicted defendant seeking to ob-

tain collateral relief based on trial errors to which no con-

temporaneous objection was made “must show both (1)

‘cause’ excusing his double procedural default, and (2)

‘actual prejudice’ resulting from the errors of which he

complains.” ——- U.S. at ——, 102 S.Ct. at 1593 (em-

phasis added). Though the instant case involves failure

to raise a defense based upon a construction of a regula-

tion rather than a failure to object to allegedly erroneous

jury charges, Frady is instructive. Frady and its prede-

cessors set forth a two-pronged standard for obtaining

collateral relief. The petitioner must show a reason for

his failure to raise the collateral challenge at trial and ap-

A-57

peal and he must show that he was prejudiced by the

procedural shortcoming (in this case, the failure to raise

an alleged regulatory exemption). Defendants have met

neither prong of the Frady test. They were represented

by competent counsel and have not shown that the fail-

ure to raise the 40 C.F.R. §125.1, et seq. defense

amounted to ineffective assistance of counsel, see p. 725,

infra. Nor have defendants shown any other good rea-

son for their failure to raise this defense at trial or on ap-

peal. Second, the petitioners have not shown that they

were prejudiced by the failure to raise the regulatory de-

fense because the defense is without merit, see pp.

721-725, infra. Therefore, the defendants have failed to

meet their burden to show that their conviction and sen-

tence should be vacated.

Defendants were tried before a jury in October

1978, for violations of the Water Pollution Act, specifi-

cally 33 U.S.C. §1311(a) which provides:

(a) Except as in compliance with this section

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

this title, the discharge of any pollutant by any per-

son shall be unlawful.

33 U.S.C. §1319(c) further provides:

Any person who willfully or negligently violates

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

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

per day of violation, or by imprisonment for not

more than one year, or by both.

The jury, during the Court’s instructions, was read

the indictment which alleged that on certain dates in

1977 and 1978, the defendants “did willfully and negli-

gently discharge pollutants, that is, wastewaters from

mushroom compost manufacturing operations, into the

waters of the East Branch of the White Clay Creek, a

navigable water of the United States, without having ob-

tained a permit from the Administrator of the Environ-

x. ,

> ye

A-58 ,

mental Protection Agency for said discharge.” The Court

then instructed the jury as to the elements of the crime

and as to the statutory definition of “pollutant,” a defini-

tion that encompasses “dredged soil, solid waste, incin-

erator residue, sewage, garbage, sewage sludge, muni-

tions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock,

sand, cellar dirt and industrial, municipal, and agricul-

tural waste discharged into the water.” 33 U.S.C.

§1362(6).

The jury was told “If you find that a substance alleg-

edly discharged by a defendant is any one or more of the

items specified in the statute’s definition of ‘pollutant,’

then you may find that the substance is a pollutant.” The

jury was also instructed as to the statutory definition of a

point source, (33 U.S.C. §1362(14)), navigable waters

(33 U.S.C. §1362(7)), the terms “willfully” and “negli-

gently,” and the meaning of intent and specific intent

under the criminal law. So informed, the jury returned a

verdict of guilty, finding that the defendants had will-

fully or negligently discharged pollutants from a point

source into navigable waters without a permit. In fact,

the evidence at trial showed that defendants never ap-

plied for a permit, a fact not contested by defendants’

counsel. Furthermore, counsel for the defendants never

suggested at trial, in post-trial motions or argument or

on the initial appeal to the Third Circuit, that the defend-

ants were in any way exempt from the permit require-

ments of 33 U.S.C. §1311(a) and 33 U.S.C. §1342.

Section 402 of the Water Pollution Act, 33 U.S.C.

§1342, sets forth the permit system of the act (known as

the National Pollutant Discharge Elimination System or

NPDES). The statute provides, in relevant part,

The Administrator may, after opportunity for public

hearing, issue a permit for the discharge of any pol-

lutant, or combination of pollutants, notwithstand-

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

A-59

such discharge will meet either all applicable re-

quirements under sections 1311, 1312, 1316, 1317,

1318, and 1343 of this title, or prior to the taking of

necessary implementing actions relating to all such

requirements, such conditions as the Administrator

determines are necessary to carry out the provisions

of this chapter.

33 U.S.C. §1342(a)(1).

Section 501 of the Act, 33 U.S.C. §1361(a) provides

The Administrator [of the Environmental Protection

Agency] is authorized to prescribe such regulations

as are necessary to carry out his functions under

this chapter.

Pursuant to these grants of authority, the Adminis-

trator and the EPA promulgated regulations governing

the issuance of permits allowing for some discharges of

pollutants that would, in the absence of having been is-

sued a permit, violate 33 U.S.C. §1311(a) and exempt-

ing some discharge activities from permit requirements.

These regulations, at the time of the trial of the Frezzo

Brothers, were codified at 40 C.F.R. §125.1, et seq. The

issuance of a permit did not and does not give the per-

mit-holder a “license to pollute.” Rather, the permit is is-

sued only after a hearing and is designed to limit the

amount of pollution where, for technological reasons,

some pollution is deemed unavoidable. All permits is-

sued under the Water Pollution Act planned and pro-

vided for decreased pollution discharges in accordance

with technology improvement and were designed to

meet the Act’s overall goal of ending discharges of pol-

lutants into the Nation’s waters by 1985. See 33 U.S.C.

§1251; E.I. duPont deNemours & Co. v. Train, 430 U.S.

112, 116-24, 97 S.Ct. 965, 969-73, 51 L.Ed.2d 204

(1977); Natural Resources Defense Council, Inc. v.

Train, 510 F.2d 692, 696—98 (D.C. Cir. 1974).

As heretofore noted, the regulations promulgated

pursuant to 33 U.S.C. §1342 (Section 402 of the Act)

A-60

exempted some pollution discharge activities from the

Act’s permit requirement. Specifically, 40 C.R.F. §125.4

lists 8 areas of exclusions from the NPDES permit pro-

gram. Section 125.4(i) provides that

The following do not require an NPDES permit:

(i) Water pollution from agricultural and

silvicultural activities, including runoff from or-

chards, cultivated crops, pastures, rangelands, and

forest lands, except that this exclusion shall not ap-

ply to the following:

(1) Discharges from concentrated animal feed-

ing operations as defined in §125.51;

(2) Discharges from aquatic animal production

facilities;

(3) Discharges from agricultural point sources

as defined in §125.53; and

(4) Discharges from silvicultural point sources

as defined in §125.54.

At the time of the trial, 40 C.F.R. §125.53 read:

For the purpose of this section:

(1) The term “agricultural point source” means any

discernible, confined and discrete conveyance from

which any irrigation return flow is discharged into navi-

gable waters.

(2) The term “irrigation return flow” means surface

water, other than navigable waters, containing pollut-

ants which result from the controlled application of

water by any person to land used primarily for crops, for-

age growth, or nursery operations.

COMMENT: This term includes water used for

cranberry harvesting, rice crops, and other such

controlled application of water to land for purposes

of farm management.

(3) The term “surface water” means water that

flows exclusively across the surface of the land from the

point of application to the point of discharge.

A-61

It is the afore-quoted sections of the regulations

upon which the petitioners based their Section 2255 mo-

tions. Petitioners contend that the mushroom

composting business they conduct, which was the

source of pollution discharged into a navigable stream, is

an agricultural activity, in particular a non-point source

agricultural activity, and that they therefore were not re-

quired by the EPA to have a permit to pollute the White

Clay Creek adjoining their mushroom composting op-

eration.? Therefore, reason the defendants, 33 U.S.C.

§1311(a) and 1319(c) can not apply to them, and they

therefore broke no law when polluting the creek.

2. The regulations cited by the petitioners were promulgated by

the EPA Administrator after notice of the proposed regulations and

comment as provided for in Section 553 of the Administrative Proce-

dure Act, 5 U.S.C. §553. See 38 Fed. Reg. 18,000 (1973); 41 Fed.

Reg. 7963. Section 402 of the Water Pollution Control Act, 33

U.S.C. §1342(f) authorizes the Administrator to promulate such

regulations. The regulations are thus “legislative” rules rather than

“interpretative” rules. See K. Davis, Administrative Law Treatise,

, 7:8 (1979). The Third Circuit has observed that

a ‘legislative rule is the product of an exercise of delegated leg-

islative power to make law through rules,’ whereas an ‘interpre-

tative rule is any rule an agency issues without exercising dele-

gated legislative power to make law through rules’.... [a]n

interpretative rule is a ‘statement’ made by an agency to give

guidance to its staff and affected parties as to how the agency

intends to administer a statute or regulation. In contrast, a leg-

islative rule, rather than merely setting forth an agency’s own

interpretation of the meaning of a statute and, in so doing, “cre-

ates” new law affecting individual rights and obligations.

State of New Jersey v. Department of Health and Human Services,

670 F.2d 1262, 1280-81 (3d Cir. 1981) (citations omitted). See also

Cerro Metal Products v. Marshall, 620 F.2d 964, 981-82 (3d Cir.

1980); Daughters of Miriam Center for the Aged v. Mathews, 590

F.2d 1250, 1258-59 (3d. Cir. 1978). A validly promulgated legisla-

tive rule is subject to review under the “arbitrary and capricious”

standard while an interpretative rule, though entitled to deference

by a reviewing court, may be overturned if the court finds the agen-

cy’s interpretation of the statute to be incorrect. Cerro Metal Prod-

ucts, supra, 620 F.2d at 981-82; Joseph v. United States Civil Ser-

A-62

The defendants’ position plainly applies faulty logic.

Pursuant to 33 U.S.C §1311(a), the Congress of the

United States specifically made it a crime to discharge

pollutants into a navigable stream without a permit. The

defendants did not have a permit, and concede that they

did not apply for a permit, nor did they contend at the

trial that they were not required to have a permit. The

jury found beyond a reasonable doubt that they willfully

or negligently discharged pollutants into White Clay

Creek without a permit. There was an abundance of evi-

dence showing that the defendants violated the statute.

The petitioners contend that it is not fair under our

system of criminal justice to hold them accountable for

their violation of the statute on the basis of their post-

trial interpretation of the above-quoted reguiations.

Since their conviction which was affirmed by the Third

Circuit, 602 F.2d 1123 with certiorari denied by the Su-

NOTE — (Continued)

vice Commission, 554 F.2d 1140, 1153-54 (D.C. Cir. 1977);

American Iron and Steel Institute v. EPA, 526 F.2d 1027, 1047 (3d.

Cir. 1975).

Both the legislative and interpretative regulations issued by

EPA pursuant to the Act have been the subject of much involved

litigation. See, e.g., Americn Iron and Steel Institute, supra; E. I.

DuPont de Nemours & Co. v. Train, 541 F.2d 1018 (4th Cir. 1976),

affd in part, reversed in part, 430 U.S. 112, 97 S.Ct. 965, 51

L.Ed.2d 204 (1977). Substantial portions of regulations similar to

those invoked by the petitioners were invalidated in Natural Re-

sources Defense Council v. Train, 568 F.2d 1369 (D.C. Cir. 1977),

in which the Court held that “the EPA Administrator does not have

authority to exempt categories of point sources [agricultural or oth-

erwise] from the permit requirements of Section 402 [of the Act)”

568 F.2d at 1377. However, for the reasons set forth at pp. 719-725,

infra, this Court need not decide whether the invalidity of the pre-

decessor regulations precludes petitioners from invoking the regu-

lations in effect during 1977 and 1978. As hereinafter set forth, the

regulations, even if assumed to be valid, do not undermine defend-

ants’ convictions because they did not rely on the regulations and

because the compost-making performed by the Frezzo Brothers was

not an agricultural activity within the meaning of the regulations.

A-63

preme Court, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d

756, their new counsel contends that §125.1 et seq. of

the regulations exempted them from the permit require-

ments of 33 U.S.C. §1342, on the ground that they were

engaged in an agricultural activity. For the reasons

hereinafter set forch, the Court finds that this regulation

did not exempt the defendants from the permit require-

ment becaus - (1) by their own admission, the regula-

tions were »«; aown to the petitioners until nearly one

year after their trial and were never relied upon by the

defendants when they made their decision to pollute the

creek; (2) even if the defendants had relied upon the

regulations, their reliance would have been unreason-

able because (a) mushroom composting in the manner

conducted by the defendants is not an “agricultural ac-

tivity” within the meaning of 40 C.F.R. §125.4(i); and

(b) even if the composting were an agricultural activity,

the pollution discharged by the petitioners emanated

from an agricultural point source as defined in 40 C.F.R.

§ 125.53.

[5] The petitioners have never claimed that they re-

lied on the regulations as exempting them from the stat-

ute. In fact, the evidence presented at the March hear-

ing shows that the petitioners were not even aware of

the regulations and that the regulations played no part in

the Frezzo Brothers’ decision to pollute the stream with-

out a permit.

The absence of any reliance by the petitioners upon

the regulations has been clear throughout the long his-

tory of this case. In denying defendants’ first post-trial

motions, this Court observed that the petitioners “ac-

knowledge that they neither have a permit nor have they

applied for one,” 461 F.Supp. 266, 269 (E.D. Pa. 1978).

This Court further noted

Testimony was presented by several witnesses

that on many occasions, commencing as far back as

1970, the defendants in this case had been investi-

A-64

gated, visited and confronted by a number of state

and county employees concerning the fact that the

stream in question was being polluted by runoff

from the compost operation conducted by the de-

fendants on the Frezzo property.

461 F.Supp. at 270. In rendering decision on petitioners’

Section 2255 petitions, this Court determined that

review of the entire record in this case, however, re-

veals that the petitioners have never attempted to

establish that they relied on these regulations in de-

ciding not to apply for a permit. In fact, these regu-

lations were never mentioned in the record until the

petitioners filed a motion for a rehearing in the court

of appeals after their original appeal had been de-

cided adversely to them. Since the petitioners have

not shown that they ever relied on these regula-

tions, they cannot claim that the regulations would

have led them to believe that their business activi-

ties were exempt from the permit requirements of

the Act.

Memorandum of June 27, 1980 at 7, 491 F.Supp. at

1343, citing United States v. United States Steel Corp.,

482 F.2d 439 (7th Cir. 1973), cert. denied, 414 U.S. 909,

94 S.Ct. 229, 38 L.Ed.2d 147; United States v. Pennsyl-

vania Industrial Chemical Corporation, 411 U.S. 655,

670, 93 S.Ct. 1804, 1814, 36 L.Ed.2d 567 (1973).

The evidence presented at the March, 1982 hearing

makes it unmistakably clear that none of the petitioners

knew of or relied upon these regulations in making their

decision to discharge pollutants into the stream. Stipu-

lated fact No. 25 of the pretrial order for the Section

2255 hearing states that the defendants had no knowl-

edge of the regulations at issue prior to July 13, 1979 and

that the petitioners were first aprised of the regulations

after they obtained new counsel. This occurred after

July 13, 1979, and well after the defendants were tried

A-65

and convicted by a jury and after this Court had denied

their post-trial motions and had been affirmed in that de-

nial by the Third Circuit.

Thus, the record has, at every juncture in this pro-

tracted litigation, clearly shown that the petitioners were

never led by any regulation or statute to believe that the

conduct for which they were convicted was not a at

home. On the contrary, regulatory agencies during the

1970s suggested to the Frezzo Brothers that the govern-

ment considered their conduct to be unlawful. In actual-

ity, all the evidence shows that the defendants knew or

should have known that the compost-producing prac-

tices were not shielded from the nation’s anti-pollution

laws.

Furthermore, the petitioners admit that they did not

rely on the regulations in deciding not to apply for a per-

mit. Under these circumstances, the petitioners cannot

claim unfari surprise in their trial and conviction. The

petitioners did not rely on a regulation thinking that it

approved their conduct. Rather, the petitioners know-

ingly engaged in conduct that violated federal statutes,

either because they were oblivious to the law or because

they disregarded the law—not because they relied on a

portion of the law. The failure of the petitioners to raise

the issue as to their reliance on the regulations at the

trial or on appeal underscores the fact that they did not

rely on the regulations as insulating them from the clear

meaning of the statute.

[6] Furthermore, the statute under which the petition-

ers were convicted, 33 U.S.C. §1311, is not the type of

criminal statute which requires the govrnment to prove

that the defendants specifically intended to violate the

statute. To sustain a conviction under Section 1311, it is

necessary only that the defendants acted willfully or

negligently and that they intended to do the acts for

which they were convicted. In order to convict, it is not

necessary that the defendants intended to violate the

A-66

law. Thus, so long as the petitioners dumped pollutants

into a navigable stream without a permit, their view as to

the legality of their actions is irrelevant. The Supreme

Court of the United States has repeatedly stated that

The power of the legislature to declare an of-

fense, and to exclude the elements of knowledge

and due diligence from any inquiry as to its commis-

sion, cannot, we think, be questioned.

Chicago, Burlington, & Quincy R. Co. v. United States,

220 U.S. 559, 578, 31 S. Ct. 612, 617, 53 L.Ed.2d 582

(1910), citations omitted.

The Federal Water Pollution Control Act makes the

petitioners’ conduct malum prohibitum. It is, like the na-

tion’s pure food and drug laws,

[A] now familiar type of legislation whereby

penalties serve as effective means of regulation.

Such legislation dispenses with the conventional re-

quirement for criminal conduct—awareness of

some wrongdoing. In the interest of the larger good,

it puts the burden of acting at hazard upon a person

otherwise innocent but standng in responsible rela-

tion to a public danger.

United States v. Dotterweich, 320 U.S. 277, 280-81, 64

S.Ct. 134, 136-37, 88 L.Ed. 48, reh. denied, 320 U.S.

815, 64 S.Ct. 367, 88 L.Ed. 492 (1943). See also Lambert

v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2

L.Ed.2d 228 (1957), reh. denied, 355 U.S. 937, 78 S.Ct.

410, 2 L.Ed.2d 419 (1958) (“conduct alone without re-

gard to the intent of the doer is often sufficient to convict

defendant for violating malum prohibitum regulatory

statute. There is wide latitude in the lawmakers to de-

clare an offense and to exclude elements of knowledge

and dilligence from its definition.”); United States v.

Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 242, 66 L.Ed.

604 (1922) (criminal statutes need not recognize

defenses founded on “good faith or ignorance.”);

A-67

Shevlin-Carpenter Company v. Minnesota, 218 U.S. 57,

68-69, 30 S.Ct. 663, 666, 54 L.Ed. 930 (1909) (absence

of specific intent as requisite element for conviction of

crime does not offend due process; “innocence cannot

be asserted of an action which violates existing law, and

ignorance of the law will not excuse.”).

Certainly, a criminal statute “must be sufficiently

definite to give notice of the required conduct to one who

would avoid its penalties, and to guide the judge in its

application and the lawyer in defending one charged

with its violation.” Boyce Motor Lines v. United States,

342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952). Section

1311 of the Act meets this standard. In clear language,

the statute informs all that pollution into navigable wa-

ters is forbidden unless the polluter has obtained a per-

mit from the government. By its terms, the statute does

not require that a defendant intend a criminal act in or-

der to be convicted of a statutory violation. The Act re-

quires only that the defendant have willfully or negli-

gently committed the acts in question. Thus, the plain

language of 33 U.S.C. §1311, indicates that it is the type

of regulatory statute heretofore discussed. Case law in-

terpreting the Act accords with that interpretation. See

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

1187-88 (D.Ariz 1975).

[7] However, the petitioners’ convictions would re-

main valid even if they had relied upon the regulations.

The language of the regulations and the evidence pre-

sented at the March, 1982 hearing makes it abundantly

clear that the Frezzo Brothers mushroom composting

operation is clearly not an “agricultural activity” within

the meaning of 40 C.F.R.§ 125.4(i). Pursuant to the

Third Circuits’s remand of this case, 642 F.2d at 63, this

Court held a hearing to determine the nature of the

composting activities conducted by the defendants. The

hearing took place on March 3, 4, 5, 11 and 12, 1982.

Based on the evidence presented at that hearing and evi-

A-68

dence presented at trial or otherwise in the record of this

case, the Court finds the following facts.

Frezzo Brothers, Inc. is a Pennsylvania corporation

engaged in the creation and sale of mushroom compost

and the growing of mushrooms near Avondale, Pennsyl-

vania. The business is operated by Guido and James

Frezzo serving as the principal corporate officers. The

compost made by the defendants provides a growing me-

dium for mushrooms. Defendants employ paid labor in

both the growing of mushrooms and in the preparation

of compost; different laborers are employed in these dif-

ferent functions. The Frezzo Brothers, Inc. fiscal year

encompassing the acts of pollution discharge for which

defendants were convicted began July 1, 1977 and

ended June 30, 1978. During that period, Frezzo Broth-

ers, Inc. had total income of more than 4.35 million dol-

lars and a gross profit of more than 1.5 million dollars.

During that year, approximately 90 percent of the de-

fendants’ compost production was sold to other mush-

room growers. More than 90 percent of the corporation’s

gross income for that fiscal year was derived from the

sale of compost, which the corporation produces in re-

sponse to orders received from numerous mushroom

growers.

Compost is produced by combining several raw in-

gredients, principally horse manure, but also including

straw, corn cobs, cocoa shells, poultry manure and gyp-

sum, mixing these ingredients with water, and then al-

lowing them to ferment outside on concrete slabs known

as “wharves.” The Frezzo Brothers operation at the

times in the indictment contained five acres of concrete

wharf area and has since been expanded. All compost

produced by the defendants is made with raw ingredi-

ents purchased from outside suppliers. At Frezzo Broth-

ers, the aforementioned ingredients are combined on the

concrete wharves in piles 6-8 feet high which measure

up to 60 yards long. The piles may be wetted by rain, but

are regularly watered by defendants whenever rainfall is

A-69

insufficient to wet the pile so as to maximize the

fermenting process. The exact mixture of ingredients

varies according to their availability and cost. These piles

are frequently aerated by being mechanically turned as

well as artificially wetted. The turning and wetting is es-

sential to compost production and takes place every two-

three days for between 10 and 15 days. These piles dur-

ing this time generate their own biomass heat and this

tiiggers a nitrogen conversion reaction which increases

the nutritive content of the mixture and produces com-

post upon which mushrooms can be grown. The fin-

ished product of compost ranges in water content from

65 percent to 75 percent. The compost is then trans-

ferred to concrete huts or mushroom growing houses

where it undergoes a pasteurization process to relieve it

of microflora, and insects, worms, and ammonia that

could impede mushroom growth. Each hut contains ap-

proximately 180 cubic yards of compost.

Pasteurized compost is then combined with mush-

room spawn that eventually produces mushrooms. Each

house contains about 8,000 cubic feet of space and has a

slanted floor so that compost may be “slid” into the

house through the upper door. The mushrooms grow in

these dark houses. !

The Frezzo Brothers wharf at the time of trial meas-

ured 5 acres in size. At that time, the facility also had a

114,000 gallon concrete holding tank designed to con-

tain water run-off from the compost wharves and to

recycle water back to them. The facility has also had a

separate storm water run-off system that carried rain

water through a pipe to a channel box located on an ad-

joining property owned by another mushroom grower.

This channel box was connected by a pipe with an

unnamed tributary of the East Branch of the White Clay

Creek. The waters of the tributary flowed directly into

the creek, which ultimately runs into the Delaware

River. On each of the six dates charged in the indict-

ment, run-off from the compost systems made its way

A-70

into the storm water run-off system and was permitted to

be discharged into the creek. Samples of the runoff at

these times contained pollutants that may not be dis-

charged under the Act without a permit, which defend-

ants lacked.

At the hearing on the Section 2255 petitions, de-

fendants produced two expert witnesses in support of

their contention that the making of mushroom compost

is an agricultural activity, Drs. Paul Wuest and Leon

Kneebone, both members of the faculty of Penn State

University. The Government presented the testimony of

Charles Rehm of the Pennsylvania Department of Envi-

ronmental Resources, Richard Casson of the Environ-

mental Protection Agency, Mark Stevens, an engineer,

Dr. Harry Motto, a member of the Rutgers faculty, and

Milo Peterson, an industrial classficiation expert em-

ployed by the federal government. Predictably, wit-

nesses Wuest and Kneebone opined and gave testimony

which suggested that compost-making is agricultural

while witnesses Rehm, Casson, Stevens, Motto and

Peterson opined and gave testimony which suggested

that the process resembles manufacturing more than

agriculture.

[8] The facts and insights ¢'«en by these men on

the stand were most helpful to the trier of fact but the

final analysis of whether mushroom composting falls

within the “agricultural activity” exclusion of 40 C.F.R.

§ 125.4(i) is ultimately a question of law which the

Court must decide. Therefore, the Court has considered

the facts and opinions elicited from each of these wit-

nesses, but has not deferred to the viewpoint of any sin-

gle witness as being determinative of the ultimate issue

at the hearing. The Court has also examined the studied

opinions of Judges Edward Becker and Louis Pollak in

the cases of Kaolin Mushroom Farms, Inc. v. United

States, 79-2 CCH Tax Cases (CCH) § 9652, No. 77-4379

(E.D. Pa. 1979) and Marshall v. Frezzo Brothers, Inc.,

No. 79-196 (E.D. Pa. June 12, 1981), affd sub nom.

A-71

Donovan v. Frezzo Brothers, Inc., 678 F.2d 1166 (1982),

respectively. Upon consideration of all this material, the

Court finds that mushroom compost production as en-

gaged in by Frezzo Brothers, Inc. at the times relevant to

the indictment and conviction was not an “agricultural

activity” within the meaning of 40 C.F.R. § 125.4(i).

The composting process at the Frezzo Brothers

plant, examined as a whole, is remarkably similar to

manufacturing. Raw materials are brought to the Frezzo

facility from outside sources. For example, Frezzo

Brothers purchases horse manure from farms located

over a wide area. The ingredients are combined and

placed on a concrete wharf. The ingredients are not

merely lumped together on the wharf but are arranged

in a regulated fashion into 6—8 feet high and 60-yard

long piles. The piles are then mechanically turned and

aerated at more or less regular intervals. Water is added

to the piles in a controlled fashion so that the piles re-

ceive a regulated amount of moisture. The resulting

compost is further processed through pasteurization and

90 percent of the product is then sold to other mushroom

growers. Only 10 percent of the compost is used by

Frezzo Brothers in their own mushroom houses. The

compost so produced must be further processed by pas-

teurization before it is used as a growing medium for

mushrooms. The Court finds that the mere fact that

mushrooms are grown in or on the compost is not suffi-

cient reason to label the process of compost-making on

the scale conducted by the Frezzo Brothers “agricul-

ture.”

In examining the Frezzo Brothers operation to de-

termine whether it met the “farm labor” exception to the

wage and hours provision of the Fair Labor Standards |

Act, 29 U.S.C. § 203(f), 213, the Third Circuit, 678 F.2d

1166, affirming Judge Pollak’s conclusion that the com-

post-operation of Frezzo Brothers (the very operation at

issue in this case) was not “agriculture” within the

meaning of the Act, said:

A-72

[A]lthough mushroom growing is a type of farming,

the production of mushroom compost is a prelimi-

nary activity which manufactures a product that is

then used in farming...

[P]reparation of mushroom compost does not consti-

tute the cultivation and tillage of the soil.

[A]s both parties agree, none of the ingredients of

mushroom compost, which include manure, cocoa

shells and hay, could accurately be termed soil. The

end product, although in a very different form than

the raw ingredients, is still not within the standard

definition of soil. See Black’s Law Dictionary 1563

(1968), Webster’s New Collegiate Dictionary, 1105

(1976)... [w)here Congress leaves a statutory term

undefined, that term should be given its ordinary

and common sense meaning.

Donovan v. Frezzo Brothers, supra, at 1169-1170. The

Court recognizes that in Donovan the issue was whether

the composting operation of the Frezzo Brothers was ag-

riculture within the definition set forth in Section 203(f)

of the Fair Labor Standards Act. However, the analysis

of the Third Circuit conforms to substantiate the analy-

sis which this Court has made in determining that the

Frezzo Brothers operation is not agriculture, but is a

manufacturing type of operation.

This Court’s determination accords with the conclu-

sion of the Third Circuit in Donovan v. Frezzo Brothers,

wherein the Court stated:

We think that mushroom compost is more ap-

propriately described as a commodity produced by

an industrial process or technique rather than as an

agricultural commodity. Mushroom composting in-

volves the use of heat and moisture to biologically,

physically and chemically alter the ingredients into

A-73

a changed product—compost. Neither mushroom

compost nor its ingredients, as we have seen, con-

stitutes soil or a product of the soil. We find that the

composting process is more akin to manufacturing

than agriculture.

678 F.2d at 1171, quoting Mitchell v. Budd, 350 U.S.

473, 482, 76 S.Ct. 527, 532, 100 L.Ed. 565 (1955).

Like the Third Circuit and Judge Pollak, this Court

attached significance to the fact that the Frezzo brothers

sell 90 percent of the compost which they produce to

mushroom farmers. Consequently, the Frezzo brothers

are not operating a typical farm where the farmer “tills,”

“nurtures,” and “cultivates” and “enriches” the soil on

which he grows his crops. The defendants have con-

tended that the involved composting process resembles

soil tillage and that compost resembles soil in that it is

the growing medium of mushrooms. Even if this reason-

ing were pursuasive, it would not make Frezzo Brothers

an agricultural activity. A typical farmer does not culti-

vate soil and then sell 90 percent of it to other “farmers.”

The Court finds, therefore, that the Frezzo Brothers, in

connection with their production of compost, are engag-

ing in a manufacturing activity and not an agricultural

operation.

The government urges this Court to adopt and em-

ploy the definitions of the Standard Industrial Clas-

sification Manual published by the U.S. Office of

Management and Budget. However, the Court need not

go this far. Rather, the Court has attempted to construe

the term “agricultural activity” within the meaning of the

regulation here at issue. Common understandings of the

terms involved, when applied to this case, lead inexora-

bly to the conclusion that the composting which takes

place at Frezzo Brothers is not an agricultural activity for

purposes of the regulations and the Water Pollution

Control Act.

A-74

[9] This Court has determined that the composting

operation of the Frezzo Brothers is manufacturing, not

agriculture. However, even if this Court were to agree

with the petitioners that the composting conducted by

the Frezzo Brothers was agricultural activity, we would

then be required to conclude that a permit would be

neccesary because that pollution caused by the Frezzo

Brothers emanated from an “agricultural point source”

within the meaning of 40 C.F.R. §§ 125.53 and

125.4(i)(3). By its terms, section 125.4(i)(3) denies its

exception to the permit requirement to “agricultural

point sources” and Section 125.53 defines such sources

as being “any discernible, confined and discrete convey-

ance from which any irrigation return flow is discharged

into navigable waters.” Section 125.53(a)(2) further

defines irrigation return flow as “surface water, other

than navigable waters, containing pollutants which re-

sult from the controlled application of water by any per-

son to land used primarily for crops, forage growth, or

nursery operations.”

As heretofore noted, the composting operation at

Frezzo Brothers uses water, in controlled application, to

achieve the proper mixture for creating compost. Thus,

in the event that this Court had adopted the defendant’s

analogy that the Frezzo Brothers operation was agricul-

tural, such a determination would compel the conclu-

sion that the water used for making the compost is irri-

gation within the meaning of the regulations, and that

the water accumulated in the catch basin is “irrigation

return flow,” the surplus of which the Frezzo Brothers

discharged through a pipe (a point source) into the

stream, thereby polluting the stream. Thus, the polluted

water was irrigation return flow within the meaning of

40 C.F.R. § 125.53(a)(2).

Without doubt, the sewer system of the Frezzo

Brothers is a “discernible, confined and discrete convey-

ance” discharging the irrigation return flow. Appendix A

of this memorandum, a photograph of a pipe from which

A-75

Frezzo Brothers discharge enters the creek, illustrates

the concentrated nature of the source of the pollution

that defendants discharged into White Clay Creek. One

glance at the photograph reveals that the source of the

pollution at issue in this case is not run-off in any way

similar to rain water running downhill from croplands.

Furthermore, the regulations, read as a whole,

clearly do not exempt from the act the concentrated and

organized discharges of the type found at the Frezzo

Brothers facility. The regulations sought to exempt from

33 U.S.C. § 1311 unconcentrated agricultural pollution

such as rain water run-off containing fertilizer. How-

ever, during the course of the trial in this case, it became

apparent that the pollution discharged by the Frezzo

brothers was nothing like rain water run-off but was like

sewage.

[10] In light of this Court’s determination that the

“agricultural activity” exclusion does not apply to peti-

tioners, it cannot be said that they were ineffectively rep-

resented at trial by their former counsel who did not

argue that the defendants were in any way exempt from

the permit requirements of 33 U.S.C. § 1342. In order to

establish a claim of ineffective assistance of counsel, the

defendants must show that the performance of counsel

fell below that “customary skill and knowledge which

normally prevails” in this area and that they were

prejudiced as a result of trial counsel's failure to raise the

agricultural exclusion issue. See United States v.

Swinehart, 617 F.2d 336, 340-41 (3d Cir. 1980); United

States v. Greene, 510 F.Supp. 128, 131 (E.D. Pa. 1981);

United States v. Snead, Cr. No. 76-502 (E.D. Pa. 1981).

Petitioners have satisfied neither prong of this test.

Defendants also contend that they will be preju-

diced if this Court finds that compost making is not an

agricultural activity on the ground that this case was

tried to the jury on the theory that the Frezzo Brothers

operation produces agricultural waste. This Court has

A-76

reviewed the trial transcript and its instructions to the

jury and has determined that defendants’ contention is

incorrect. The jury was charged that, in order to convict,

they must find that: (1) the defendants discharged a pol-

lutant; (2) the defendants’ discharge of the pollutant

was done willfully or negligently; (3) the defendants did

not have a permit to discharge the pollutant. The Court

instructed the jury as to the definition of “pollutant”

found at 33 U.S.C. § 1362(6). This definition encom-

passes both agricultural and non-agricultural waste.

Neither this Court nor the jury made any finding that

the pollutants discharged by the defendants were spe-

cifically agricultural waste or any specific type of waste.

The jury found only that the discharges of the defen-

dants came within the statutory definition of pollutant.

Furthermore, any objection to either the jury

instructions or the prosecution’s closing argument

should have been raised by the defendants at trial. This

contention of the defendants falls clearly within the rule

of United States v. Frady, ___._ U.S. ___, 102 S.Ct.

1584, 71 L.Ed.2d 816 (1982) as it, like Frady, involves

collateral attack upon the jury instructions and closing

arguments. Therefore, the petitioners must show both

cause for their failure to object to the charge to the jury

or any prosecutorial characterization of their activities

and prejudice resulting from the actions of the prosecu-

tor or the Court. Again, petitioners have met neither

prong of the Frady test.

While this Court has not discussed herein all of the

contentions which were raised by defendants in their

Section 2255 petitions, it has, however, reviewed the en-

tire record and considered all the grounds alleged by the

defendants in their petitions and finds that none of them

either singly or collectively has sufficient substance to

merit any further discussion as a basis for granting relief

from their convictions or for vacating or setting aside

their sentences. An appropriate order will be accordingly

entered.

A-77

Gerald ALBERS, Plaintiff,

v.

Harol WHITLEY, et al., Defendants.

Civ. A. No. 81-517-PA.

United States District Court,

D. Oregon.

Aug. 31, 1982.

Civil rights action was brought against correction

officers by prisoner who was shot during a riot in the

state penitentiary. The District Court, Panner, J., held

that use of shotguns by prison officers was justified after

one inmate was reported dead, an inmate armed with a

knife said that others were in danger and one guard was

held hostage, precluding plaintiff from recovering on ba-

sis of use of excessive force, and (2) since there was no

constitutional right to be free from use of deadly force

administered to quell prison riot and rescue hostage, no

reported cases established right of prisoner to recover

damages for alleged consitutional violation and case au-

thority at time clearly provided great discretion to prison

officials to take necessary action to control prisoners, de-

fendants could not have reasonably known their actions

would violate plaintiffs constitutional rights and they

were entitled to a qualified immunity.

Order accordingly.

1. Federal Civil Procedure 2152

Directed verdict is appropriate if evidence permits

only one reasonable conclusion as to verdict.

2. Federal Civil Procedure 2127, 2148, 2152

On motion for directed verdict, court must consider

all evidence, but must do so

A-78

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1494

UNITED STATES OF AMERICA

v.

FREZZO BROTHERS, INC., GUIDO FREZZO,

and JAMES L. FREZZO,

Appellants

(D.C. Crim. No. 78-218)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Argued Tuesday, March 8, 1983

Before: HIGGINBOTHAM, SLOVITER and

VAN DUSEN, Circuit Judges

(Filed March 29, 1983)

OPINION OF THE COURT

PER CURIAM:

In 1978, a jury convicted appellants of six counts of

willfully and negligently discharging pollutants into

waterways of the United States in violation of 33 U.S.C.

§§1311l(a) and 1319(c) (1978). See United States v.

Frezzo Bros., Inc., 461 F.Supp. 266 (E.D.Pa. 1978). This

court affirmed the convictions. United States v. Frezzo

Bros., Inc., 602 F.2d 1123 (3d Cir. 1979), cert. denied,

444 U.S. 1074 (1980). The district court dismissed peti-

tions for post-conviction relief, under 28 U.S.C. §2255,

United States v. Frezzo Bros., Inc., 491 F.Supp. 1339

(E.D.Pa. 1980), but this court reversed and remanded for

A-79

an evidentiary hearing to determine whether appellants’

conduct was exempted from the criminal sanctions of 33

U.S.C. §§1311(a) and 1319(c) as agricultural activity

under 40 C.F.R. §125.4(i) (1978). United States v.

Frezzo Bros., Inc., 642 F.2d 59 (3d Cir. 1981).

The district court found that petitioners’ conduct

was not agricultural activity; rather, the court found that

petitioners’ conduct was manufacturing in nature.

United States v. Frezzo Bros., Inc., 546 F.Supp. 713

(E.D.Pa. 1982). Consequently, it held that the pollution

that resulted from petitioners’ conduct was not exempted

by 40 C.F.R. §125.4(i) from the criminal sanctions under

which they were convicted, 33 U.S.C. §§1311(a) and

1319(c). It therefore denied petitioners’ request for col-

lateral relief. Petitioners now oppose the district court’s

decision.

After considering the contentions raised by appel-

lants, to-wit, that (1) the district court erred in interpret-

ing that (1) the district court erred in interpreting the

Environmental Protection Agency’s agricultural exclu-

sion regulations, (2) the district court entirely ignored

the evidence of record in determing that petitioner’s

mushroom composting operation was manufacturing

rather than agriculture, (3) the government is estopped

from arguing and the district court is estopped from find-

ing that petitioners’ mushroom composting operation is

manufacturing, (4) that the definition of point source in

the Water Pollution Control Act and EPA regulations

constitute an unconstitutionally vague standard of crimi-

nal conduct, (5) petitioners were denied effective assis-

tance of counsel, we will affirm the judgment of the dis-

trict court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

A-80

APPENDIX G

Supreme Court of the United States

No. A-941

FREZZO BROTHERS, INC., ET AL.,

Petitioners,

v.

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner(s),

It Is Ordered that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including June 27,

1983.

/s/ William J. Brennan, Jr.

Associate Justice of the Supreme

Court of the United States

Exhibit “A”

A-81

APPENDIX H

Amendment Vv {1791}

“No person shall be . ee of life, liberty, or prop-

erty, without due process of law .

A-82

APPENDIX I

§ 1311. Effluent limitations

Iegality of pollutant discharges except in compliance with law

(a) Except as in compliance with this section and

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

title, the discharge of any pollutant by any person shall

be unlawful.

§ 1319. Pollution Prevention

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

lates section 1311, 1312, 1316, 1317, or 1318 of this

title, or any permit condition or limitation implementing

any of such sections in a permit issued under section

1342 of this title by the Administrator or by a State 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 imprison-

ment for not more than one year, or by both. If the con-

viction 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 $50,0000 per day of viola-

tion, or by imprisonment 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, re-

cord, report, plan, or other document filed or required to be

maintained under this chapter or who falsifies, tampers

with, or knowingly renders inaccurate any monitoring de-

vice or method required to be maintained under this chap-

ter, 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.

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

“person” shall mean, in addition to the definition

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

corporate officer.

A-83

APPENDIX J

Section 125.4(i) states:

“The following do not require a NPDES permit:

(i) Water pollution from agricultural and silva-

cultural activities, including runoff from orchards,

cultivated crops, pastures, range lands and forest

lands except that this exclusion shall not apply to

the following:

* * * *

(3) Discharges from Agricultural Point Sources

as defined in Section 125.53.”