Amicus Curiae Brief — United States v. Pennsylvania Industrial Chemical Corp.

Supreme Court of the United States

OCTOBER TERM, 1972

NO. 72-4

UNITED STATES OF AMERICA, PETITIONER

) v.

FENNSTLVANMA INDUSTRIAL CHEMICAL

' CORPORATION

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Third Circuit.

BRIEF FOR AMICI CURIAE UNITED STATES

CORPORATION AND WHEELING-PITTS-

BURGH STEEL CORPORATION IN OPPOSITION TO

“THE GRANT OF THE PETITION FOR CERTIORARI

QUESTIONS PRESENTED

1. Whether Defendant can be prosecuted for its

failure to hold a permit under Section 13 of the Refuse

‘Act of 1899 (33 U.S.C. § 407), for a discharge of treated

‘waste water with no tendency adversely to affect nav-

igation alleged to meet applicable water quality criteria

‘which took place in the summer of 1970 prior to the crea-

tion of a program for the issuance of permits governing

8

ey

Interest of the Amici Curiae.

2. Whether the Defendant’s claim that it was af.

firmatively misled by the Corps of Engineers into beliey.

ing that no permit from the Corps of Engineers was nec.

essary to discharge into the Monongahela River treated

waste water with no tendency adversely to affect nav.

igation is an adequate defense to the present prosecu-

tion.

INTEREST OF THE AMICI CURIAE

Criminal informations: were filed against United

States Steel Corporation and Wheeling-Pittsburgh Steel

Corporation in the United States District Court for the

Western District of Pennsylvania on the same day as

‘the criminal information involved in this matter was

filed against Pennsylvania Industrial Chemical Corpo

ration (“PICCO”). The informations involve discharges

of substances with no tendency adversely to affect navi-

gation in the summer of 1970 prior to the existence of a

permit program for such discharges. United States

Steel Corporation and Wheeling-Pittsburgh Steel Corpo-

ration moved to dismiss the informations filed against

them. Following argument on the motions to dismiss, the

District Court entered an order deferring decision of

the motions to dismiss until the decision of the Third

Circuit Court of Appeals in this matter. No decision has

yet: been entered on the motions to dismiss. United

States Steel Corporation and Wheeling-Pittsburgh Steel

Corporation: believe the disposition of the informations

filed-against them is likely to be controlled by any at-

tion of this Court in the present matter. Therefore, they

‘have obtained the consent of the Solicitor General and

counsel for PICCO to file this brief as amici curiae.

„

Argument.

ARGUMENT

There are no issues involved in this case which have

sufficient importance to justify consuming the time of

this Court in their resolution. The essential holding of

the Court of Appeals for the Third Circuit is that it was

a violation of due process to prosecute PICCO criminally

for the failure to have a permit under Section 13 of the

Refuse Act of 1899 (33 U.S.C. § 407) (hereinafter

“§ 13”) for the discharge of treated industrial waste

water with no tendency adversely to affect navigation

into the navigable waters of the United States if at the

time the discharges took place, there was no program

pursuant to which PICCO could have obtained such a

permit. Two events which have happened since the date

of the discharges involved in this case have severely lim-

ited the significance of the decision of the Court of Ap-

peals. First, on December 25, 1970, by Executive Order

No#11574, 35 Fed. Reg. 19627, the President announced

the promulgation of a permit program under § 13 for dis-

charges of the type involved in this case. Hence, with

regard to discharges taking place after the implementa-

tion of the permit program on April 7, 1971, 36 Fed. Reg.

For practical purposes the PICCO defense cannot be

raised in connection with any discharges taking place af-

ter that date. It is true, as the Government notes,

that in the case of Kalur v. Resor, 335 F. Supp. 1 (D. D. C

, appeal pending, the issuance of permits under the

de regulations was enjoined by the District Court for

theDistrict of Columbia on the ground that the regula-

75

*＋ Ny

Argument.

tions of the Corps of Engineers fail to satisfy all re

quirements of the National Environmental Policy Act of

1969, 42 U.S.C. § 4332 (2) (C). However, this decision

when read with PICCO obviously does not prevent the

Government from prosecuting persons who have not ap

plied for permits, nor persons whose applications for

permits have been rejected for inadequacy or because

the proposed discharges are unsatisfactory. It is diff.

cult to imagine why the Government would wish to

prosecute someone who had submitted a satisfactory

permit application where the only inhibition to the issu-

ance of a permit is the injunction issued in Kalur v.

Resor, supra. The PICCO decision seems to have no bear

ing whatsoever on accidental spills into the navigable

waters of the United States. Hence, despite the protesta-

tions of the Government, the PICCO decision appears to

have practically no effect on enforcement of § 13.

There is, however, an additional development which

renders the PICCO decision even less significant. On

October 18, 1972, the Federal Water Pollution Control

Act Amendments of 1972 (S 2770) (“the Amend-

ments”) became law. The Amendments have a signif-

eant effect on § 13. The permit program is continued,

but responsibility for permits involving discharges with

no tendency to affect navigation is transferred from the

Corps of Engineers to the Environmental Protection

Agency. Most important, the Amendments provide in

Section 402(k) that:

“Until December 31, 1974, in any case. where 4

permit has been applied for pursuant to this Section

{which by Section 402(a) (5) of the Amendments

is deemed to include applications pending under §

Argument.

13], but final administrative disposition of such ap-

plication has not been made, such discharge shall

not be a violation of . . . Section 13 of the Act of

March 8, 1899, unless the Administrator or other

plaintiff proves that final administrative disposition

of such application has not been made because of

the failure of the applicant to furnish information

reasonably required or requested in order to process

the application.” |

This provision has the effect of codifying and confirming

the limitations on the effect of the PICCO decision which

we have suggested above. As a result, we submit that

PICCO can control only a handful of cases all involving

events which took place over 18 months ago. Although

the Government states at page 10 of its petition that 115

criminal cases brought since 1970 are pending, it does

not state how many of those involve accidental spills to

which the defense of unavailability of a permit is not

very plausible or how many involve discharges after the

institution of a permit program to which the PICCO de-

cision would not appear to be literally applicable. With

regard to civil suits, we suggest that the limitations

o the savings provision of the Amendments are con-

trolling and obviate any questions raised by PICCO. The

savings provision in Section 4(a) of the Amendments

refers only to suits under the Federal Water Pollution

Control Act and does not refer to civil suits under § 13.

The Court may rightly ask if our argument as to the

limited effect of the PICCO decision is true, why the

ee

amici have troubled themselves with the preparation

and filing of this brief. The answer is that while the

issues of PICCO are of little significance to others in the

future, they are of great significance to the amici with

regard to multiple count criminal informations filed

against them at the same time as those filed against

PICCO and arising out of like discharges in the summer

of 1970. The amici feel severly aggrieved by the act of

the United States in prosecuting them for failure to pos-

sess a permit that no reasonable man would have be

lieved was necessary and no reasonable man then or now

would have believed to have been available at the time

charged in the informations. The information against

United States Steel Corporation is in 35 counts while

that against Wheeling-Pittsburgh Steel Corporation is

in 13 counts, In light of the action of the District Court

for the Western District of Pennsylvania in the PICCO

case in assessing the maximum fine of $2,500 on each

count, there is ample financial incentive for the amici to

pursue this matter even if principle were not involved.

The amici contend that the resolution of this mat-

ter by the Third Circuit was a sound one. Although that

court rejected the contention that § 13 was limited toa

prohibition of discharges with a tendency to affect

navigation, it recognized that a reasonable person, rely-

ing on the official pronouncements of the Corps of Er-

gineers dealing with § 13, could well have reached that

conclusion at the time the discharges of PICCO took

place. Second, the Court of Appeals recognized the in-

controvertible fact, acknowledged by representatives of

7

Argument.

the United States in their more candid moments,*

that there is a fundamental inconsistency between the

absolute prohibition of waste water discharges with no

tendency to affect navigation now said by the Govern-

ment to be contained in § 13 and the provisions of the

Water Quality Act of 1965. The latter Act obviously

recognizes that a certain amount of discharge is in-

evitable under the current state of technology and the

economy and hence provides for the definition of stand-

ards of water quality and for the abatement of dis-

E. g., in an interview with William Ruckelshaus,

Administrator of the Environmental Protection ,

published in the May, 1971 issue of Environmental Sci-

ence and Technology under the caption, “A Candid Con-

versation with the First Administrator of the Environ-

mental Protection Agency,” the following exchange took

place at page 392:

_ - [QUESTION] :

Jaun't there overla federal jurisdiction on

__, enforcement already er the Refuse Act and the

Federal Water Pollution Control Act?”

- [ANSWER By Mr. RUCKELSHAUS] :

be laws almost contradict one another. Under

the t. it is against the law to dump

ble waters or their tributaries

Federal Water Pollution Con-

the setting of standards by the

val by the federal government.

Act, the people are to comply with

standards; it says nothing about

being illegal.

fair to say that the rea-

under the Refuse Act is

rmit. 33888

rs was 1 om oes

any permit program for

to a stream.”

Argument.

charges which violate such standards. The clear impii-

cation of the Water Quality Act of 1965 is that dis

charges which meet or better the existing water quality

standards are lawful.

The Court of Appeals recognized that the only way

the alleged absolute prohibition of § 13 could be recon-

ciled with the clearly implied permissibility of dis-

charges which meet the water quality standards under

the modern legislation was through the device of a per-

mit program under § 13 which would authorize dis-

charges which met applicable standards. Despite the

argument of the Government at pages 14 and 15 of its

brief that Congress in 1899 intended to absolutely pro-

hibit discharges into the navigable waters of the United

States, it seems impossible in light of the economy and

technology at that time to believe that Congress in-

tended anything more than to regulate the location of

such discharges. The Court of Appeals rightly did not

allow itself to be persuaded that in 1899 Congress pro-

hibited all discharges into the navigable waters of the

United States. In addition, the Court of Appeals ex-

amined the record which showed PICCO’s offer to dem-

onstrate clearly that the Corps of Engineers had never

contemplated the possibility that it had authority to in-

stitute such a program at the time PICCO made its dis-

charges. It examined the record which showed PICCO’s

offer to prove that PICCO had obtained those permits

for its discharges of treated waste water which were

clearly required under the Clean Streams Law of the

Commonwealth of Pennsylvania and those permits from

the Corps of Engineers for construction of its outfalls

that were clearly required by the regulations of the

9

Corps. The Court of Appeals reached the eminently rea-

sonable conclusion that assuming the existence of the

facts in the offers of proof the conviction of PICCO was

an “unsound result” and a denial of due process. As the

Court said, “Congress did not intend criminal penalties

for one who failed to comply with a non-existent regula-

tory program.”

CONCLUSION

Both because of the relative unimportance of the

PICCO decision and the soundness of the result reached

by the Court of Appeals for the Third Circuit, this Court

should decline to exercise jurisdiction and deny the peti-

tion for a writ of certiorari.

Davi McNer Or ns

JOHN MCN. CraMER

Reep SmirH Shaw & McCay

Attorneys for Amici Curiae

WiLLiaM Foster

Senior General Attorney

United States Steel Corporation

Wheeling-Pittsburgh Steel Corporation

Or CouNsEL

ie-Sapreme Court of the Wnited States

| Octoser TIA, 1972

5 No. 72-624

Duri Srares of AMERICA, PETITIONER

a P v.

jerivania InpusraiaL Cxemical CORPORATION

non A WRIT OF OBRTIORARI TO THE UNITED

COURT OF APPBALS FOR THE THIRD CIRCUIT

2

8

5 — ——ͤoéC—

* MEMORANDUM FOR THE UNITED STATES

a 15

* sition to the petition for a writ of certiorari,

it urges that the decision of the court of ap-

i be sustained since at the time the com-

harged pollutants into the Monongahela

e formal permit program existed under the

Reference is made to an interview with

. Ruckelshaus, Administrator of the En-

Protection Agency (“EPA”), reported

y. 1971 issue of the trade magazine, En-

i Science & Technology.“ Mr. Ruckelshaus

quoted as stating that persons could not “get

it they wanted to” prior to implementation

ae (2)

2 Bs

of the December 1970 permit program; before en

“we did not have any permit program for the | 7 é

charge, of, waste into a stream.” Td. at 392. 3

sort, the statemem attributed to Mr. Ruckleshaus *

not entirely accurate. It is true that no formal permit

“program” such as the one established by Executive

Order No. 11574 in December 1970 (see Pet. 6 n. 5

existed at the time of the discharges involved here

But a federal discharge permit could then have been

obtained under the Refuse Act, in the discretion of

the Secretary of the Army, had respondent made a

application. Perhaps because issuance of such permits

was not the responsibility of the EPA Administrator,

but was a discretionary function assigned by statute

(33 U.S. C. 407) . to the Secretary of the Army, Mr.

Ruckelshaus was not entirely familiar with past prac

tice.” In any event, permits, though few in number,

wees ee ley’ the Hecretary of the: Army: under s

UV. S. C. 407 between 1963 and 1969.’

The fact that the number of permits seinen: under

the Refuse Act was far fewer than are presently con-

templated ander the new program, and that they

were not issued e eee e is, a

— |

: e put fer geg doi -., the. Ser

of the Arm under the Refuse Act was

a e RPK A eser bp eh e Water

ee, a ee e e ee

my 42 77 n 5 2 27 8 * ial R. 7 5

p e Comme

sm diet Cong., 2d Sees., Pt. 2, pp. 168 and 201 (July:2%0)-1970).

a 4

3 b ey

in our petition, insufficient basis for reading

of the Refuse Act.the ban on discharging pollu-

s into the Nation’s navigable waters. The First

Cireuit recently so held in United States v. Granite

as Packing Co., No. 72-1253 (November 6, 1972),

in an opinion which we are appending hereto. The

| Gramte State decision is contrary to the decision in

the instant case and thus presents a conflict between

the First and Third Circuits on an important question

involving the construction of a federal criminal stat-

ute that should be resolved by this Court.

It is therefore respectfully submitted that the pe-

- tition: for a writ of certiorari should be granted.

Erwin N. Griswo 3p,

BE Solicitor General.

-Decemsper 1972.

APPENDIX

Um States Court or APPEALS ron THE First

Cmourr

No. 721253

Untrep States or AMERICA, APPELLEE

v

Granite State PacxNd Company,

DEFENDANT, APPELLANT

*

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRIOT OF NEW HAMPSHIRE

Before Corrin, Chief Judge; Aupricn and

ge CaMPBELL, Circuit Judges.

November 6, 1972.

Amon, Senior Judge. Defendant, operating a

slaughtering plant in the City of Manchester, New

Hampshire (City), appeals from a conviction on three

counts for violating section 13 of the Rivers and Har-

hors Act of 1899, 33 U.S.C. § 407, also known as the

fuse. Act of 1899, in that it did “discharge, or de-

& or cause, suffer, or procure to be thrown, dis-

ed, or deposited . . refuse matter . other

in a liquid state, into any navigable water

(5)

3

6 ais

8

of the United States.. United States v. Granite

State Packing Co., D. N. H., 1972, 343 F.Supp. 57. In

this court defendant does not dispute the distriet

court’s finding that the Merrimack River, hereinafter

river, is navigable in the jurisdictional sense. Uutted

States v. Appalachian Power Co., 1940, 311 U.S. 37,

404-10; Rochester Gas & Elec. Corp. v. United States,

2 Cir., 1965, 344 F.2d 594, or that its animal waste is

not exempted sewerage; United States v. Republic

Steel Corp., 1960, 362 U.S. 482; United States v.

Pennsylvania Indus. Chem. Corp., W.D. Pa., 1971,

329 F.Supp. 1118, rev’d on other grounds, 3 Cir., 1972,

461 F.2d 468. It advances various defenses based upon

the fact that it discharged its refuse into the sewer-

age system of the City. :

The facts are these. Sometime prior to 1885 a rail-

road, laid out between defendant’s plant and the river,

constructed a stone culvert under its right of way to

carry discharges by defendant’s predecessor in oceu-

pation. In 1885 the City connected a sewer to the eul-

vert, part way between defendant’s plant and the

railroad track. Since then defendant’s and the City’s

effluents, mingled at the point of juncture, jointly pass

under the track and into the river. No exercise of

eminent domain, deeds, or other documents support

any part of this procedure, but it would seem reason.

ably apparent that by this time both defendant and

the City have an easement of flow as against the rail ·

road. Whether defendant has enforceable rights

against the City need not be considered. The court

found, stretching the facts, perhaps, in defendant's

favor, that since the culvert ‘‘is part of the municipal

sanitary. and storm sewer system” of the City, “de

fondant idischuryes into u public sewer.” Although

it might be said, instead, that the public sewer Gis

7

into defendant’s culvert, we aecept this find-

present purposes. The court concluded, however,

even though defendant discharged its refuse

mmnicipal sewer system, its contention that this

it of liability did not follow. We agree. :

fre is nothing in the statute that supports de-

unt’s position. As a matter of simple logic, if a

rty deposits an impermissible substance in a munici-

-sewer, knowing that the sewer leads dizectly into

vigable water, it “causes, suffers, or procures” the

stance to be discharged into the stream. Cf. Nowlin

United States, 10 Cir., 1964, 328 F.2d 262. More-

over, it seems clear that the statute is not restricted

‘to direct deposits, United States v. Esso Standard Oil

Co. of Puerto Rico, 3 Cir., 1967, 375 F.2d 621, or, at

Teast within limits, to scienter. United States v. United

ng Steel Corp., N.D. Ind., 1970, 328 F.Supp. 354,

Vor is defendant aided by the fact that a subse-

quent portion of the statute empowers the Secretary

0 ‘the Army to grant exceptions from the broad pro-

tion. Under the authority of the Refuse Act and

n Order No. 11574, the Secretary has estab-

3 comprehensive permit program. 33 C. F. R.

131 (1971). Even if, which we need not consider,

defi t could readily have obtained a permit, this

x 75 und be no defense; the statute makés the ieeeint

jor on might be said to modify this requirement whats

i ty “[d]ischarges or deposits into a municipal or

xr public sewage treatment system, 33 C. F. R.

13) (d) (2) (ii) (emphasis added), the City passes

wage raw; there is no treatment. United States

. Ctty of Asbury Park, D. N. J., 1972, 340 F. Supp.

e Defendant's s argument that the City is planning

*

8

to have a treatment system does not even warrai

description specious.“ 1

Equally without merit is defendant’s da

on the other hand, it could not get a per ity

either contrary to the intent of Dongen or

stitutional, to apply the statute to it. The s 9

no purport to provide for permits as of right et

cally, it forbids certain conduct, with excep

Defendant ‘has. not shown that the exceptions

arbitrary, unreasonable, or discriminatory. \

nothing more to the case.

Affirmed.