Brief for the United States — United States v. Pennsylvania Industrial Chemical Corp.

The Secretary's permit authority

1 per datagpnagher ae

‘the ground. that it had been affirma-

® tively misled by the Corps of Engineers

|» believe it did not need a permit for

os these discharges. ....................

2. Publisker Commercial Alcohol Co., 62

p. 161, ery" 54 F.2d 1020

a

a cbeivekan uel

~ Cases—Continued

Ne Piensa gi hanenen The, 101 F.2d 688

Scow No. On 4a Vea

United States v. Armco Steel Corp., 388 F.

United States v. Ballard Oil Co. of Hartford,

195 F.2d 369.

United States v. City of Asbury Park, 8 E.R.C.

enamel 875. F.2d: 621

United States v, Florida Power & Light Co.,

Co., 336 F. Supp. 539

United States v. Granite State "Packing Co.,

C.A..1, No. 72-1253, decided November 6,

1972...

United States vy. Hercules, Inc., 335 F. Supp.

10Qu. 2 <--+ssen4------4--------2------ 18

United States v.. Tuuerinke Stool Corp., 297 F.

Supp. 912. - 18, 19, 25, 26

United States v. Maplewood Poultry Co., 327

F. Supp. 686--. 18, 19; 26

United States v. Republic Steel Corp., 286 ¥.

2d 875

United States v. Republic Steel Corp., 362 U.S.

482 15, 16, 17, 19, 21, 26, 28; 29, 32, 34, 39

United States v. Standard Oil Co., 384 U.S.

| 8,15, 16,19, 21, 24, 25, 20,34,

ERC wer: seca idico Beast Gaps 328

F, ‘Supp. 354, appeal pending, C.A. 7, No.

18, 23, 26

‘flatute and regulations:

“H Actiof July 17, 1952, ¢, 927, 66 Stat, 755. =...

Clean Water Restoration Act of 1966, Pub. L.

i Federal Water Pollution Control Act of 1948,

© % & 758, 62 Stat. 1155, as amended, 33 U.S.C.

PME ng me ailith aan Bigebiinddaisni'nusa-

ii Beetion 1(a), 83 U.S.C. 1151(a)_._______

$ Section 10(c), 33 U.S.C. 1160(c)__- 5, 14,

Section, 10 (83 U.S.C. (1964 ed.) Supp.

ee AOD SOB hii dre oe epee gs

4 ~Bection 11, 83:U.8.C. 1174...........__

Section 21, 33 U.S.C. 1171(b)_____..__-

i 5 Vesiers! Water Pollution Control Act Amend-

ments of 1956, c. 518, 70 Stat. 498....____

Federal Water Pollution Control Act Amend-

»» ments of 1961, Pub. L. No. 87-88, 75 Stat.

Fy,

Federal Water Pollution Control Act Amend-

# ments of 1972, Pub. L. No. 92-500, 86 Stat.

mt Section 300(b)........

mus | Bection 300(c)-._-..........__-- Hhike-

12

13

19, 20

13

SE Noe ioe en sa. haus 13, 20, 21

_.. ind Harbors Act of 1886, 24 Stat. 329.

_ Rivers and Harbors Act of 1888, 25 Stat. 209.

"24

24

ys

Re

ed

t Rivers aiid s Act of 1800, 26 St. 4 ow

Rivers and Harbors Act:of 1804, 28 Stat. 308. |

ahr scene aC pee me fertogerT? 1151

ot 809. :

Section 10,83 U.S.C. 408 SEERA 17, 28, 30,3.

Section 11, 33 U.8.C. 404_......._----- B

Section 18, 33 U.S.C. 407 (Refuse Act). passim

Section 16; 33 U.S.C. 411_-.-.-------_- 3

Rivers and Harbors Act of 1905, Section 4,

33 Stat. 1147, 33 U.S.C. 419. _--_------.- 23, 9

Water Quality Act of 1965, ‘Pub. L. No. 89-

S04. 70 Bint: COO in ors hohe o.. 13

CN he SS oo ec. 4

Water Quality Improvement Act of 1970,

Pub. EL. 91-224, 84 Stat. 91, 33 U.S.C.

(1970 ed.) 1351 a SS RMR Ge a5 RS AGC B

6 Bik: PUR cde cise scczecicei pt

a ee 8 eS p

TS Giety WOGs cn os 2 Eee pt

OR Pee. Gee = es ne ene. 2

33 C.F.R. (1946 ed.) 209.50(d). .---_--- B

$3 C.F.R. 200.120(d).. .-...-...--- 30, 35, %

33 C.F.R. 200.180(b)(18)...___.-__-_-- 3%

pees SS 8 ee ee 6, 3

33 C.F.R. 200.131(d) (8). _......------- 8

33 C.F; WOM -~. 2 =. 5-5 -- 29, 3

33 C.F.R. (1967 ed.) 209.395_ -...-- 28, 30, 35

Miscellaneous:

Barry, The Evolution of the Enforcement Pro-

visions of the Federal Water Pollution Con-

- rel Act: A Study ef the Difficulty in Develop-

ing Effective Legislation, 68 Mich. L. Rev

3108 -(1070).c2. cececes.- ccs. 18, 14,2

Miscellaneous—Continued

1 Environment Reporter, Current Developmenis,

EE ree eae 33

_ Executive Order 11574, December 23, 1970... 6, 30

Hearings Before the Subcommittee on Energy,

Natural Resources, and the Environment

the Senate Committee on Commerce on the

Effects of Mercury on Man and the Environ.

ment, 91st Cong., 2d'Sess..__._______ 28, 29, 32

Note, The Refuse Act: Its Role Within the

Scheme of the Federal W. Quality Legis-

lation, 46 N.Y.U. L. Rev. 304 (1971)______ 21

Rodgers, Industrial Water Pollution and the

Quality, 119 U. Pa. L. Rev. 761 (1971). 15, 28, 31

Sandler, The Refuse Act of 1899: Key to Clean

Water, 58 A.B.A.J. 468 i. Se 17

Steffin, The Refuse Act of 1899: New Tasks for

An Old: Law, 22 Hastings L. J. 782 (1971)_ 14, 20

U.S. Army Corps of Engineers News

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a

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ea” Ae

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. it ; . ‘ -

7 4 * . ‘

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BH ETE WE woK0O Ao Both ony

te Botbn i hei 7 * ts 2

fcue

Jn the Supreme Court of the Wnited States

- OoroaER Tena, 1972 cai

peer Ok: ean

Untrep StTares or AMERICA, PRTTTIONER °

v.

PENNSYLVANIA INDUSTRIAL CHEMICAL CORPORATION

OY WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

: APPEALS FOR THE THIRD OIROCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

_ The opinions of the court of appeals (Pet. App. A,

PP. 1a-27a) are reported at 461 F.2d 468. The memo-

tandum opinion of the district court on respondent’s

motion for judgment of acquittal (Pet. App. C, pp.

%a-4la) is reported at 329 F. Supp. 1118.

JURISDICTION

The judgment of the court of appeals (Pet. App. B,

P. 8a) was entered on May 30, 1972. A petition for

rehearing was denied on August 21, 1972 (Pet. App.

D, p,.42a). Pursuant to an order extending the time

within which to file a petition for a writ of certiorari,

(1)

2

the petition was filed on October 20, 1972; it was

granted on December 18, 1972. The jurisdiction of

this Court rests :

aatite halal pigs, $i; we

1. Whether the; governmentia alleged failure to in-

stitute a formal permit program under the Refuse Act

of 1899 (33 U.S.C. 407), pertaining to industrial dis-

charges into navigable waters of refuse not having an

adverse: affect:en navigation, is; if: proved, a bar to

criminal prosecutions undér that statute for such dis-

charges.» ‘) GANIMAR) AAiaYoudv. 2 VI YCRAD

2. Whether respondent’s claim that it was affirma-

tively misled by the Corps of Engineers into believing

that it could with impunity discharge into the Monon-

gahela River refuse not tending adversely to affect

navigation isan adequate defense to the present pro

Section 13 of the Rivers and Harbors Act of 188

(the “Refuse Act”), 30 Stat, 1152, 33 U.S.C. 4M,

provides in pertinent part:

Tt shall not be lawful to throw, discharge,

deposit, or cause, suffer, or procure to be

thrown, discharged, or deposited * * * from the

j

or description whatever other than that flowin

from streets and sewers and passing therefrom

in a liquid state, into any navigable-water of

the United States, or into any tributary of a1

|S “navigable water from which the’ same” shall

| @ float or be washed into ‘such navigable water

1 * © And provided further, That the Secre-

“%o tary of the Army, whenever in the judgment

' \of the Chief of Engineers anchorage and navi-

gation will not be injuréd thereby, may permit

: the deposit of any material above mentioned in

|, Ravigable waters, within limits to be defined

and under conditions to be prescribed by him,

““’ provided application is made to him prior to

‘” “depositing such material; and whenever any

“' permit is so granted ‘the conditions thereof

*'sshall be strictly complied with, and any vio-

o> lation thereof shall be unlawful.

» Section 16 of the Rivers and Harbors Act of 1899,

90 Stat. 1153, 33 U.S.C. 411, provides in pertinent

part:

Every person and every corporation that

«+»; Shall violate * * * sections 407, 408, and 409 of

___ this title shall be guilty of a misdemeanor, and

_. 0m conviction thereof shall be punished by a

~~ fine’ not exceeding $2,500 nor less than

Hee} * $500 2* *

apis STATEMENT

Qn April 6, 1971, the United States commenced

this prosecution by the filing of a criminal informa-

tion’ (App. 3-4), which alleged that respondent,

Penngyivania Industrial Chemical Corporation

(@PICCO”);' had, on four separate occasions in

Angust 1970, discharged from its industrial plant

tertain refuse into the Monongahela River, in viola-

tion'ef-33 U.S.C. 407 and 411. Following a jury trial

TRE

4

in the United, States. Distriet Court for the Westem

District; of Pennsylvania, PICCO was convicted o

all-four counts; the:maximum fine allowable by stat

ute, $2,500.00, was imposed.on.each.count. The court

of appeals reversed and remanded the cause to the

district court for further proceedings (Pet. App. A,

pp. 1a-27a). aeieye

1. At trial, it was stipulated that PICCO was the

owner of a manufacturing establishment on the bank

of the, Monongahela River, a navigable water of the

United States; and that the concrete and iron pipe

which deposited into that river the alleged refuse

matter involved here were also owned by PICOO

(Pet. App. ©; p. 30a). The iron pipe served only

PICCO’s plant; the concrete pipe served the plant and

several private residences nearby (tbid.).

On the basis of tested samples taken from the dis

charges at both pipes, the criminal informatio

charged (App. 3-4). that the effluent being de

posited therefrom into the river included “‘iron, alum

inum, and compounds containing these chemicals [and

others} * * *, and solids * * *.” The trial exhibits

(Gov't Exs. 7-12, App. 240-242) and testimony (App

61-76, 86-111) revealed that each of the four discharges

involved contained considerably more suspended, vola-

tile, fixed and total solids and aluminum than wer

found midstream in the Monongahela River. In addi-

tion, when compared with the midstream waters (Gov't

Exs, 8 and 10, App. 240.and 241), two of the discharges

had a significantly larger amount of sulphate (see Gov't

Exs. 9 and 12, App. 241 and 242), and one of these two

(Gov’t Exs. 12, App 242) contained far more chloride

| 5

id a third deposit, Gov’t Ex. 10, App. 241), and

80 took the position at trial that these sampled

ts did not constitute ‘‘refuse matter’’ within the

meaning of the Act. That term, it argued, applied

only to deposits that would “impede navigation,” and

did not cover liquid solutions such as flowed through

its pipes. It also urged ‘that the discharge from its

plant was, in any event, nothing more than “sewage,”

which was not reached by the statutory proscription

(Pet. App. A, pp. 4a-5a).* These contentions were

ejected by the district court. It held (1) that the

statutory prohibition against the discharge of refuse

into navigable rivers did not depend on a resulting

hindranee to navigation (Pet. App. C, p. 31a), and

(2) that, since “‘each of the effluents was ‘industrial

waste,’’’ it was “not ‘sewage,’ ” excepted from the

Aet’s coverage (id. at 32a). These rulings were af-

firmed by the court of appeals (Pet. App. A, pp.

te-fa).

-*Comparison of Gov't Exs. 7, 9, 11 and 12 (App. 240, 241 and

242) with Gov’t Exs. 8 and 10 (App. 240 and 241) also shows that

three of the four discharges were considerably more alkaline and

he. fc discharge more acidic than the midstream waters.

-*The Refuse Act excepts from its coverage “* * * refuse

iter *.* * flowing from streets and sewers and passing there-

rom in a liquid state, into any navigable water of the United

wales *.* *” (33 U.S.C. 407).

h courts below also rejected PICCO’s contention that

n “refuse” in the 1899 Act should be defined in light of

er quality standards established pursuant to Section 10

of the Water Pollution Control Act of 1948, as amended

1160(c)(1)). “Such a course of action would be

” the court of appeals held (Pet. App. A, p. 8a),

§

‘The: Refnse Act “provitles: that the:

the Army “may permit the deposit of [cttaeminegl |

hibited] .material *:*:* in. navigable waters *#*

provided. application:is made to him: prior to deposit

ing such material * * *’? (33 U.S.C. 407). It is um

disputed that ;-PICCO made no effort prior to ‘th

commencement of this action to obtain such permission

with «respect. to’ the. contested discharges into the

Monongahela. River (Pet. App. C, p. 30a).* The com-

pany offered at trial to show, by reference to certain

regulations: and internal memoranda of the Corps of

Engineers, that the federal government never had 2

formal program for issuing discharge permits under

the Refuse Act before December 1970 (App. 166-172);

It further offered to show, on the basis of the Corps of

Engineers’ alleged enforcement policy under the Act

and on the basis of a 1949 conversation between off-

eials of the Corps of Engineers and PICCO purport

edly ¢oncerning a possible permit application, that it

had been affirmatively misled into not applying fora

“[ijn’ view of * * * significant, differences [between the two

’ statutes] in approach; and the ‘cardinal rule that repeals fof

legislation}: by implication are not favored’ * * *.”

+The district court’ disallowed PICCO’s offer of proof that it

had obtained a discharge permit from the Commonwealth of

Pennsylvania upon demonstrating that its industrial waste sat-

isfied state water quality standards (Pet. App. C, pp. 33a, 40s).

*In December 1970, the President announced the establish-

ment of formal Refuse Act permit program (Exec. Order

11574); regulations implementing that program became effective

April: 7, 1971 (33 C.¥.R. 200.131). That program recently be-

came part of & new permit program authorized by Section 402

of the Federal Water Pollution Control Act Amendments of

1972, Pub. Law No. 92-500, 86 Stat. 880 (October 18, 1972).

‘WeNGHAL diischinhys' permit under the statnte (App: 166-

78; 175-277). "These offers of proof were disallowed by

uaaistri court on the ground that they were not rele-

, 85a). PTOCO was cotivicted on all counts.

“8 The court of appeals reversed (Pet. App. A, pp.

la-27a). It rejected the district court’s construction

of the'the Refuse Act prohibition against discharges

ai éperating regardless of ‘the absence of formalized

gable waters of this country would, in the court’s view,

have! had a “drastic impact * * * on the nation’s

economy even in 1899” (Pet. App. A, p. 10a). Instead,

it held, Congress intended to condition enforcement

of the Act on the creation and operation of an admin.

istrative permit program. The court stated (id. at

fs Congress contemplated a

saiebniasoateniemeiieuetadiceaien aa

Quality Act [of 1965] and section [13] of the Rivers and

Harbors Act [of 1899], if the effect of the latter istopr-

hibit all discharges.of industrial waste into navigable

waters.” As it viewed the matter, “[w]hat makes the

two statutes compatible is the permit program compem-

plated by Section 13’’ (sbed.).

As an alternative basis for reversal, a majority of

the court held that the district court had erred in

disallowing PICCO’s offer of proof that it had bee

affirmatively misled by the Corps of Engineers into

believing that it was not necessary to obtain a federal

discharge permit. Establishment of that proposition,

it held (Pet. App. A, pp. 24a-25a), would be a due

process defense to the prosecution.°

. Accordingly, the case was remanded to the district

court to give PICCO an opportunity ‘‘to prove the

non-existence of a permit program at the time of the

alleged offenses,’’ or “to ‘prove that the Corps of Engi-

neers affirmatively misled it into believing that a per-

mit was not necessary in its situation” (Pet. App. 4

p. 25).

*On this point, one judge dissented. He observed that United

States v. Standard Oil Oo., 384 U.S. 224, 280, and United

States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d Gi

(C.A. 8), had settled the question of the applicability of th

_ Refuse Act to industrial discharges such as those involved her

well before PICCO’s alleged violations occurred. “While |

agree,” he stated (Pet. App. A, pp. rapstejne Megplhane 8

ess] may require a court to recognize the defense suggested ly

{the majority] * * *, I do not believe that a citizep may re

sonably rely on a statement in an administrative regulatio

when the judiciray branch of the government has clearly é&

clared the contrary.”

ig

coin Refuse Act of 1899 forbids discharging or de-

0.8.0. 407). This urt and other federal courts

haye read the prohibition ‘broadly in order to achieve

its fundamental purpose to protect the rivers of this

country against refuse that could impede or injure

navigation or pollute the free-flowing waters.

~ In the present case, the court below, although find-

ing that the discharge by PICCO of its industrial

waste into the Monongahela River came within the

general prohibition of the statute, declined to enforce

the operative provision of the Act. Because, in its

view, the establishment of a formal regulatory pro-

gram was required by the statutory proviso giving the

Seeretary of the Army discretionary authority (upon

receipt of a prior application) to permit certain dis-

charges, it held that no crime could be committed in

the absence of a permit program.

This novel construction of the proviso would effec-

tively nullify the Act’s broad prohibition of pollutant

discharges. Neither the language of the statute nor

its legislative history supports such a result. Indeed,

the decision below stands the Act on its head. What

Congress generally proscribed—i.c., the discharge of

industrial pollutants into navigable waters—becomes

generally permissible. And the limited defense to a

10 i

prosecution for, discharges.which Congress said thy

Secretary in his discretion ‘‘may permit’’ has been

expanded by the court of appeals into virtually an abso-

tute defense in the abserice of a formal regulatory per.

mit program which Congress did not specifically con

The fact that later: enactments by Congress have.

called upon the States to establish water quality stand:

atds ‘with: respect’ to interstate waters provides no

basis for eliminating the broad prohibition in the Re

fuse Act: The subsequent legislation in this area ex

plicitly states that nothing therein is to be construed

as affecting or impairing the 1899 ban on discharging

refuse matter. In the more recent statutes Congress

has, moreover, instructed the Secretary of the Army,

in exercising his discretion under the earlier law, not

to grant any permit for discharges that fail to satisfy

the new water quality standards.

For more than 70 years the Refuse Act has been

enforced by the federal courts notwithstanding the

nonexistence of a formal regulatory permit program.

During that period the Secretary of ‘the Army has

from time to time issued Refuse Act permits. More

over, in recent years, administrative enforcement of

the broad prohibition in the 1899 statute against dis-

charging industrial waste into our Nation’s waterways

has demonstrated a special concern for control of

watér ‘pollution. There is, accordingly, no warrant

for éliminating the prohibition of pollution provided

VY

2 “a “Congress in the Refuse Act merely because the

Maccdary, prior to December 1970, exercised his “per-

‘iit’ authority informally ‘upon submission: of a dis-

charge application rather than operating undera formal

Hegulatory ‘program. ©

“yy hile PICCO. claims that it was affirmatively mis-

led by. the’ Corps of Engineers , into believing that no

| to discharge its industrial

waste into | the ‘Monongahela River, we do not believe

? ny can avail itself of that defense. The

: ations on which it relies to support its due

claim are outdated and do not reflect the

oud 1968. The more recent regulations of the Corps

of E sit eers. demonstrate its concern with matters

E pol lution and clearly indicate that environmental

rs play an important role in rocessing appli-

for permission to use navigable waters. In

iew of the Corps’ unmistakable resolve since 1968

0 au our Nation’s waterways against the dis-

charge of pollutants, and the clear pronouncements

i is Cour and other federal courts that the un-

rized depositing of industrial waste into the

iy 3 and harbors of this country are prohibited

by ae ea Refuse Act, PICCO is in no position to justify

{8 ec duet on the ground that it was affirmatively

misled to believe that its conduct here was not a crime.

12

ARGUMENT

I

THE DEPOSITING OF INDUSTRIAL WASTE INTO NAVIGABLE

WATERS WITHOUT FIRST APPLYING FOR, AND OBTAIN-

ING, A DISCHARGE PERMIT FROM THE SECRETARY OF

THE ARMY IS A VIOLATION OF THE REFUSE ACT

The discharge of industrial waste into the naviga-

ble waters of this country is, regrettably, a practice

which too many have engaged in for much too long.

Only in recent years has there emerged a national

awareness of the very real threat that industrial pollu-

tion poses to the survival of our rivers and harbors

and to the health and welfare of those who come into

contact with polluted waters. Perhaps because many

‘of the ecological problems that are now the focus of

intense concern evolved gradually, the enforcement of

existing, and development of new, legislative measures

to combat water pollution has heretofore been pressed

with less diligence than might have been the case

had the potential danger been fully appreciated

earlier,

A major effort by the federal government to clean

up the Nation’s waterways began in earnest only a

few years ago. At the time, the only statutory weap

ons available to the government for use against those

largely responsible for creating the present conditions

were the previously little-used Refuse Act of 1899

(Section 13 of the Rivers and Harbors Act, 33 U.S.C.

407) and the much-amended Federal Water. Pollu-

tion Control Act of 1948 (““FWPCA”).’ Ms

TC. 758, 62 Stat. 1155, as amended, Act of July 17, 1952 c. 92%,

66 Stat. 755; Federal Water Pollution Control Act Amend-

13

» latter statute, at least prior to its most recent

dments,’ proved to be an “inadequate response

he increasing problems of water pollution.”* One

of the difficulties resulted from the fact that the water

quality standards provided for in the 1965 amend-

ments to the FWPCA relate only to the quality of “in-

ferstate” waters, leaving the matter of pollution con-

trol with respect to navigable waters within each State

ments of 1956, c. 518, 70 Stat. 498; Federal Water Pollution

Control Act Amendments of 1961, Pub. L. No. 87-88, 75 Stat.

94; Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat.

903; Clean Water Restoration Act of 1966, Pub. L. No. 89-753,

80 Stat. 1246; Water Quality Improvement Act of 1970, Pub.

L, No. 91-224. 84 Stat. 91, 38 U.S.C. (1970 ed.) 1151-1175.

In 1972, the FWPCA was amended for the seventh time.

Federal Water Pollution Control Act Amendments of 1972,

Pub, L. 92-500, 86 Stat. 816. This new legislation provides both

for national water quality standards (Secs. 306 and 307, 86

Stat 854 and 858) and for a federal permit program relating to

the discharge of pollutants into navigable waters (Secs. 401 and

402, 86 Stat. 877 and 880) ; it is to be administered by the Environ-

mental Protection Agency (Sec. 101, 86 Stat. 816). Moreover, Sec-

tion 402(k), 86 Stat. 883, provides for a hiatus on new litigation

under the Refuse Act of 1899 until December 31, 1974, or, if sooner,

until final administrative action has been taken on permit applica-

tions submitted under the 1972 statute.

The 1972 Amendments do not, however, affect the present

litigation. They explicitly provide that pending actions under

the 1899 Act “shall [not] abate by reason of the taking effect

of the amendment made by section 2 of this Act” (Sec. 4(a),

86 Stat. 896). Unless otherwise indicated, the discussion of

the FWPCA in this brief will relate to the statute prior to

its amendment in 1972.

* See note 1, supra.

ay

Barry, The Evolution of the Enforcement Provisions of the

Federal Water Pollution Control Act: A Study of the Difi-

oulty in Developing Effective Legislation, 68 Mich. L. Rev.

1108, 1104 (1970).

ol

Bo

ri for.a.09 hve

ences; theré | minima, delay of 6 months befor

2. hearing board. yea issue an abatement order, and

the order [could] not compel actual abatement until a an

additional 6 months [had] elapsed.” * Only after this

extended period could. fhe, Attorney General of the

United States seek judicial enforcement of the abate

ment order. Even 'then, the Act until 1972 provided no

criminal.or ciyil penalty for the previous discharge of

noxious effluents (except oil spills), and thus it “failfed]

“3° 4965 Act, Sec. 5(a), adding Sec, 10(c) (5) to the FWPCA,

33 U.S.C..(1964 ed., Supp. TV) 486g (c) (5). If the discharges and

the persons affected are in. the same State, He consent of the gor-

ernor of that State is required before federal action can be com-

pi 33 ao ee. Supp. iV) 466(g) (2). See also 33

4 The pn ag are mia remedied sh the

(Sec. pag 86 Stat. Sa) — 1972 noes ts also ae

late

that those who the operative

provisions of be g Migriiund statute ding sage criminally prosecuted (Sec

309(c), 86 Stat. 860).

* Steflin, The Refuge Act of 1899: New Tasks For An Qld

Law, 22 Hastings L.J. 782,786 fava). An alternative procedur

allowed the Attorney | to paetieate # ri ut Woes

FWPCA if a violator | to comply with water

standards within 180 ris of notice of the violation. 3s URE

(1964 ed., Supp. IV) 466g(c)(5); 38 U.S.C. (1970 ed)

1160(c): (5).

15

ohangy of po Hae sufficiently costly to the

fo : initial decision whether to ¢ engage

1 cond so causes pollution. sf Barry, supra, 68

Aotee }

} ‘arg fi ov. at 1121 9

; _Teasons, the government turned to the

1 4 Act “of 1899, 33 U.S.C. 407, as the onily effec-

rial assault the underlying philosophy that this Court

had earlier said sustains a broad reading of that

statute: “¢& river is more than an amenity, it is a

reasure.’”” United States v. _ Republic Steel Corp., 362

8. 482, 491, quoting Mr. Justice Holmes in New

Jersey ¥. New York, 283 U.S. 336, 342.

aa Reyes e sol A. THE REFUSE ACT PROHIBITION

T Section’ 13 of the Rivers and Harbors Act of 1899

ares, in simple absolutes that have been dhirac-

| terized as “almost an insult to the sophisticated’ wastes

m ern téchnology,”’ * that “Tilt shall not be law-

to deposit or discharge into the navigable waters

of the United States “any refuse matter of any kind’

or description whatever other than that flowing from

streets and sewers and passing therefrom in a liquid

diate * * *” 33 U.S.C. 407. This provision is a codi-

fication and consolidation of earlier criminal statutes

which were desigtied to prohibit the willful or negli-

gent discharge into navigable waters of matter that

would obstruct navigation or causé pollution. United

lates ¥. Standard Oil Co., 384 U.S. 224, 226-280.

- Rodgers, Industrial Water Pollution and the Refuse Act:

pohenes for Water Quality, 119 U. Pa. L. Rev. 761,

16

From the outset, the Refuse Act has been read by

the federal courts, in accordance with its plain lan.

guage, as imposing a flat ban on the dumping of for.

eign substances into the Nation’s free-flowing rivers

(see, ¢.9., Scow No. 36, 144 Fed. 932 (C.A. 1)), and

the statutory term “refuse matter” has consistently

been accorded a broad construction. Thus, the courts

of appeals quite early declined to limit the criminal

sanction to discharges of “such refuse matter only

as would impede or obstruct navigation.’’ LaMerced,

84 F. 2d 444 (C.A. 9); The President Coolidge, 10

F. 2d 688 (C.A. 9); United States v. Ballard Oil

Co. of Hartford, 195 F. 2d 369 (C.A. 2); Maier v.

Publicker Commercial Alcohol Co., 62 F. Supp. 161

(E.D. Pa.), affirmed, 154 F. 2d 1020 (C.A. 3). And

in the Standard Oil case, supra, this Court, eschewing

“a narrow, cramped reading” (384 U.S. at 226) of

the prohibition, which would have restricted it to

“substances lacking a pre-discharge value” (384 U.S.

at 228), held that ‘‘[t]he word ‘refuse’ includes all

foreign substances and pollutants apart from those

‘flowing from streets and sewers and passing there

from in a liquid state’ into the watercourse” (364

U.S. at 230). And see United States v. Esso Standard

Oil Co. of Puerto Rico, 375 F. 2d 621 (C.A. 3).

Moreover, the exception in Section 13 for refuse

flowing from “sewers” in a “liquid state’’—which

provides the lone exclusion from the discharge pro-

scription—was, as pointed out by the court below

(Pet. App. A, pp. 5a-6a), intended to have limited ap-

plication. As this Court held in United States v. Repub-

lic Steel Corp., supra, it excepts from criminal

3 17°

‘punishment only the dumping into navigable waters

of “sewage” (362 U.S. at 490), as that term is

customarily used, and does not exempt deposits of

“industrial waste’’ (362 U.S. at 490-491) of the sort

involved in the present case.”

“2. Armed with this broad judicial interpretation of

the prohibition in the Refuse Act, recognized by this

Court as essential ‘‘in Jight of the purpose to be

served” (United States v. Republic Steel Corp.,

supra, 362 U.S. at 491), the United States launched

4 major enforcement program against industrial pol-

luters in the federal courts in the latter months of

1969 and early 1970, seeking both criminal sanc-

tions and civil injunctive relief under the statute.”

The program has, thus far, been quite effective. Un-

restrained use of our Nation’s waterways as a dump-

“WThe district ict court instructed the jury that the term “sew-

age” was defined “as, generally, that water, filth, and feculent

matter-deriving usually from human and domestic waste, but

not including industrial waste” (Pet. App. C, 82a) The jury

found. that the discharged matter flowing from respondent’s

pipes was “industrial waste” (ibid.). As was the case in Republic

Steel Corp., the waste material here contained ‘articles in sus-

pension, although in lesser amounts; but this Court has clearly

stated that the existence of such particles in suspension does

not permit industrial discharges to be “treated as favorably

‘as Sewage is treated” (862 U.S. at 491). The court below found

that to be the controlling principle here (Pet. App. A, p. 6a).

_*In Republic Steel Corp., supra, this Court upheld the dis-

er to enjoin pollution. See Sandler, The Refuse Act of

+ Key to Clean Water, 58 A.B.A.J. 468-469 (1972).

the flood of pollutants being, discharged , into om

rivers, lakes, and papi See): ey United. States.»

Granite State, Packing Company, OA. 1, Now 72-125,

decided, November, 6,, 1972: (animal, waste) ;, United

States v.. Genoa. Cooperative Creamery, Go., 336. F,

Supp.. 539 (W. D,, Wise,), appeal docketed, C.A.7

(creamery. wastes) ; 3, Unsted, States, 7, United States

Steel: Corp., 3. ER.C. 1057. (ND. Tl.) (steel-mill

waste) 5, United States y. Hercules, Inc., 335 F. Supp.

102,, (D. Kan.) (ammonia) ; United States v. Armeo

Steel Corp,; 333, F, Supp.. 1073 (S.D.. Tex.) (cyanide,

phenols and. ammonia) ; ‘ ‘United States v.. Maplewood

Poultry Co., 327 F. Supp. 686 (D. Me.) (blood and

chickén. retinal) ; 5. United States v. United States

Steel. Corp.,.328 F. Supp. 354 (ND. Ind.), appeal

pendirig, ©.A. 7, No. 72-1590 (red sediment and oil);

United States v. Florida Power & Light Co:, 311 ¥.

Supp. 1391 (S.D. Fla.) (heated water) ; United States v.

Interlake Steel Corp., 297 F. Supp. 912 (N.D. TL)

ui ended solids)."*

The contentions of those accused. of pollution, seek-

ing to tiatréw the stope of the Refuse Act prohibition,

or, alternatively, to expand thé statutory exception

Of the 408 ériminsl prosecutions thist have been decide

427: (81' percent) have been successful. Theré aré 115 criminal

dases still pending. Fifty-three (92 percent)’ of the 58 cotr

civil ‘suits have beén décided in’ the government’s favor,

/in decrees requiring the imnediate or phased abate

ment of thé dischiitge: Seventy Civil cases’ are still penililig

19

for “sewage,” have generally been unsuccessful.’

Similarly, the courts have rejected the contention that

the flat ban in the 1899 Act against discharging ref-

use matter can no longer be enforced in light of the

congressional command to establish water quality

standards in the subsequently amended FWPCA.”

“The principal weakness in the latter argument is

that Congress specifically provided in the 1965 and 1970

legislation that the new statutes are not to be construed

as “affecting or impairing” the prohibition in the Ref-

use Act.” See United States v. Interlake Steel Corp.,

supra, 297 F. Supp. at 917; United States v. Maple-

wood Poultry Company, supra, 327 F. Supp. at

688. This savings clause is entirely consistent with

the announced purpose of the FWPCOA “to enhance

the quality and value of our water resources arid to

establish a national policy for the prevention, control,

and abatement of water pollution” (33 U.S.C. (1970

ed.) 1151(a)).

As this Court emphasized in Republic Steel Corp.

and Standard Oil, that, too, is an objective of the Re-

* As stated supra, p. 5, these contentions were also rejected by

the court of appeals in the present case. See also United States v.

City of Asbury Park, 3 E.R.C. 1417 (D. N.J).

“The provisions with respect to water quality standards

were first added in the Water Quality Act of 1965, 33 U.S.C.

(1964 ed, Supp. IV) 466g ; they were retained, with some revisions,

when the FWPCA was again amended in 1970 by the Water

Quality Improvement Act, 33 U.S:C. (1970 ed.) 1160(c) (1).

..*See Section 11 of the Water Pollution Control Act of 1948,

@ Stat 1161, as amended in 1956, 70 Stat. 507, as further

amended by the Water Quality Act of 1965, 79 Stat. 903, and

“6 further amended by the Water Quality Improvement Act

of 1970, 84 Stat. 113; 33 U.S.C. (1970 ed.) 1174,

up the Nation’s

as it did by the 1965. and 1970 amendments to the

FWPCA, that the separate States establish “water

quality criteria” for their “interstate” waters (33

U.S.C. (1970 ed.) 1160(e)(1)) which are subject to civil

enforcement measures only (33 U.S.E. (1970 ed.) 1160).

Such a program provides only @ partial response to the

ecology problem (and see pp. 13-14, supra). For ex-

ample, as one commentator has astutely observed (Stef-

fin, supra, 22 Hastings L.J ; at 785; footnotes omitted):

The only standards provided for are ambient

_ standards which set maximum pollutant concen-

trations in receiving bodies of water. Conse-

quently, there are no restrictions on the pollutants

released in the individual polluter’s effluent

stream. This omission permits multiple pol-

luters to continue discharging effluents while the

cumulative effect of their discharges reduces

the quality of the receiving body of water below

the standards set by the act.”

Accordingly, Congress also saved unimpaired the broad

: prohibition in the Refuse Act (33 U.S.C. 1174), thereby

preserving & complementary enforcement procedure of

_ * The com -ve Water Pollution Control Act Amend-

n. 7) effectively eliminate this deficiency

21

‘greater impact (criminal and civil penalties) and wider

‘application (all navigable waters).”

8. This legislative judgment notwithstanding, in the

present case a federal court has—for the first time in

more than 70 years—held, in essence, that the 1899

statute is unenforceable against anyone who dis-

charged pollutants prior to December 31, 1970 (see

n. 5, supra). Relying on the proviso clause giving the

Secretary of the Army broad discretion to permit

certain discharges if they do not impede navigation,

the court below adopted a novel construction of the

Refuse Act which would cast serious doubt on all

prior convictions thereunder and foreclose continued

prosecution of the cases now pending.” It is our sub-

mission that this decision rests on precisely the sort

- of “narrow, cramped reading” of the statute which

this Court has insisted the legislative purpose ‘‘for-

bids” (United States v. Republic Steel Corp., supra,

362 U.S. at 491; United States v. Standard Oil Co.,

supra, 384 U.S. at 226).

B. THE SECRETARY'S PERMIT AUTHORITY

1 The court of appeals based its departure here

_ from all previous judicial interpretations of Section

* For a more complete discussion of the shortcomings of the

FWPCA, prior to its most recent amendment in 1972, and an

analysis of the interrelationship between that Act and the

Refuse Act, see Note, The Refuse Act: Its Role Within the

Scheme of the Federal Water Quality Legislation, 46 N.Y.U. L.

Rev. 304, 319-323 (1971).

“™ In view of the statutory permit program to be implemented

‘under the 1972 amendments to FWPCA (Secs. 401 and 402, 36

Stat. 877 and 880), the decision below would not affect actions

under the Refuse Act that might be initiated in the future. See

7, supra,

13 on the statutory language contained in the secon

proviso to the general prohibition, which reads in

relevant part (33 U.S.C. 407): “That the Secretary

of the Army * * * may permit the deposit [of refuse

matter deemed not to be injurious to navigation] * **

within limits to be defined and under conditions to

be: preseribed by him, provided application is. made

to him prior to depositing such material * * *.” The

court assumed that Congress intended by this proviso

that “a regulatory program’’ (Pet. App. A, p. 15a), ad-

ministered by the Secretary, would be established, and

that the criminal penalties in the statute would apply

only to ‘those who failed to comply with this regu-

latory program’’ (sbid.). In the absence of such 4

program, the court thus concluded—and it is agreed

that the Secretary had adopted no formalized permit

procedures under the Refuse Act for some 70 years

(but see n. 5, supra)—the discharging of pollut- —

ants into navigable waters was never intended to bea

crime. :

The court thus engrafted upon the Act a novel

interpretation under which the proviso would swallow

up—and effectively nullify—the basic statutory pro-.

hibition. In so doing, it made no reference to the fact

that, in the proviso Congress used the words ‘‘may

permit” in authorizing the Secretary to exempt par-

ticular river deposits from the prohibition of the Act.

Also ignored was the condition in the proviso that

the Secretary. need exercise his discretion only, with

respect to applications “made to him prior to deposit-

ing such. material.’

Unquestionably the language chosen by Congress

3

pot areaiade the « establishment of a formal per-

pram and, there is, mtch to be, said for en-

ig. the a ive agency to follow such a

‘But it is not the ‘funetion of the judiciary

ewrite legislation in a manner which it might

m, to he more desirable ¢ or effective." In 1899, Con-

88 chose { to place i in the discretion of the Secretary

Army, in those instances where a prior applica-

made, the determination whether to immunize

eriminal prosecution discharges that would other-

36 a unlawful. See United States v. United States

Corp., 328 ¥. Supp. 354, 360 (N.D. Ind.), appeal

ding, C.A. 7, No. 72-1500; United States v. United

28 ‘Steel Corp., 3 E.R.C. 1057 (N.D. Ill.). Nothing

is said i in the statute about the manner in which that

issive, not mandatory; in contrast to other por-

tion of the Rivers and Harbors Act enacted contem-

poraneously, the proviso involved here does not in

call for a formal regulatory scheme to. make

the broad anti-dumping provision operative.”

“One 0: of the major difficulties in combatmg water pollution

has been in identifying the polluters and locating where the

are being discharged into the water. See Barry, supra,

i. L. Rev. at 1191-1129. It was in part to meet this problem

that a formal permit program to’ regulaté the discharge of

‘matter was devised in December 1970 (see n. 5, supra).

bc we have pointed out, Congress has now enacted legisla-

prorading for a comprehensive permit program (see nn. 7

‘Section 11 éf the Rivers and Harbors Act of 1899,

3 |. 404, which instructs the Secretary of the Army to

"harbor lines beyond which works may not be ex-

or deposits made “except under such regulations as may

from time to time by him.” And see Section 4 of

tii

7

Nor is there any support in the legislative history

for the court of appeals’ assumption that Congres

intended. so to condition enforcement of the Refuse

Act. While that history contains no specific reference

to the Séction 13 permit proviso, it does make clear,

as we earlier indicated (supra, p. 15), that the broad

prohibition in the 1899 statute was a codification of

earlier criminal statutes, including the Act of 18%

(26 Stat. 453) and the Act of 1894 (28 Stat. 363).

See United States v. Standard Oil Co., supra, 34

U.S. at 226-229. Neither of these predecessor statutes

contemplated that application of their operative

provisions would turn on the existence of a “regula

tory program.” On the contrary, the 1890 Act pro

vided only that its absolute ban on the discharge of

ehumerated substances could not be construed “to

prevent” (26 Stat. 454) the Secretary of War from

granting, in his discretion, a permit to deposit such

material into navigable waters ; the 1894 Act contained

no permit authorization whatsoever.” And as this

Court indicated in Standard Oil Co., the prohibition

in the Refuse Act was not intended to have a nar

rower reach than that of the statutes it was designed

to codify with “no essential changes in the existing

law’? (32 Cong. Ree. 2923).

The court below thus had no warrant for rewriting

the Rivers and Harbors Act of 1905, 33 Stat. 1147, 33 USC.

419, authorizing regulations regarding the transportation and

dumping of dredging material. as

* The predecessor Acts of 1886 (24 Stat, 329) and 1888 (3

Stat. 209), pertaining only to New York Harbor, which served

as models for the above Acts, were virtually identical in form

and substance.

tae

a.

‘the 1899 statute to condition the enforcement of its

discharge prohibition on the establishment of a formal

“regulatory program.” By engaging in such judicial

legislation, it has in effect stood the statute on its

head. What Congress intended generally to proscribe—

i.e. the discharge of industrial pollutants (see United

States v. Standard Oil Co., supra, 384 U.S. at 229-

230)—becomes generally. permissible. The proviso’s

limited defense to a Refuse Act prosecution for dis-

charges which the Secretary in his discretion “may

permit,” is expanded by the court of appeals into

virtually an absolute defense in the absence of a regu-

latory program which Congress did not prescribe.”

No longer would it be enough for the Secretary, con-

sistent with past practice (see pp. 27-33, infra), to exer-

cise his “permit” authority informally upon sub-

mission of a discharge application; he must, under

the opinion below (Pet. App. A, pp. 14a-15a), devise

a formal “regulatory program” as a precondition to

any prosecutions for the illegal discharge of pol-

lutants. Such a judicial reformulation of a legislative

* The court of appeals apparently believed that, in light of

Standard Oil, discharges of an “accidental nature” can be pros-

ecuted under the Act even in the absence of a formal permit

Program (Pet. App. A, p. 9a). It has long been recognized

that the Refuse Act draws no distinction between discharges

Which are accidental and those which are intentional. See, ¢.g.,

Scow No. 36, supra; The President Coolidge, 101 F. 2d

€88.{C.A. 9); United States y. Interlake Steel Corp., supra.

Under the Third Circuit's view of the statute, however, the inten-

tional polluters would, in the absence of a regulatory program,

80 free, while those who accidentally discharge refuse matter into

navigable waters could be criminally prosecuted. There is no

Teason to believe that is the result Congress wished to achieve.

yest Se

“am ox

26

mse emeentielly removes

Jeet

recognized ed 0 pe construction,

rad Ya sprites, sah ¥. Dont ed States, 19 Wail,

227, 236-2

a ee is, moreover, no cause to give the Refuse

Act such a “narrow, cramped. reading” (362 U. S. at

491) because of later enactments by Congress in the

water quality field. Contrary. to the opinion belo

(Pet. App. A, p. 10a), the legislative directives in »

the Water Quality Act of 1965 and the Water Quality

Improvement Act of 1970 that each State establish

clean water standards as a means of controlling in-

dustrial pollution (see pp. 19-20, supra) are not “funda-

mentally inconsistent” with the 1899 statutory ban on —

almost all pollutant discharges. See, €.9., United States

v. Intetlake Steel Corp., supra, 297 F. Supp. at 916-

917; United States v. United States Steel Corp., supra,

328 F. Supp. at 357; United States v. MU aplewood

Poultry Co., supra, 397 F. Supp. at 688. We have

* Neither Brown v. State, 167 S.W. 348 (Tex. Ct. App. by

hor Mitchéll v. Dison, 168 S.W. 2d 654 (Tex. Com. App.), on

which thé court’ of appeals rélies, supports its reading of the

statute. Those decisions hold that where a licensing statute or

ordinance requires the establishment of a board to review

license applications fo carry on specified activity, and no such

board: has: béen’ established; aii individwal cannot be convicted

for in that’ activity without a license. By contrast,

the Refusé Act, a critninal statuté, designates the Secretary of

thé Army sii the official to idee permits in his discretion ; there is

no réquirentént that’a deparate board of review be established ; nor

is the Séérétaty required to do moré than act on’ permit applica- |

tions that are submitted t6 him: |

{ out that the earlier legislation explicitly au-

oe ‘the, Secretary of the Army to act on indi-

dua I discharge ‘applications submitted to him. In

ising his. discretion in this arca, he has been

instrueted by Congress not to grant any permit if

the Proposed discharge fails to meet the minimum

‘ quality standards under the amendments to the

Ww CA (33 U.S.C. 1970 ed.) 1171(b)(1)).” This

limitation ¢ on the Secretary’s permit power, however,

in no way undermines the general prohibition. Rather,

consistently with the purpose of both the Refuse Act

and the FWPCA (supra, p. 19), Congress has

prescribed stricter controls over all discharges of

refuse that may, in the Secr etary’s discretion, be

excused from the 1899 proscription, so that foreign

effuents having an impermissibly high waste content

will no longer be deposited into our Nation’s navigable

waters

2. We do not deny that the water quality restric-

tions placed by Congress in 1970 on issuance of federal

permits affecting navigable waters were prompted in

part by the fact that the issuing authorities had in the

past, like many others, given too little attention to en-

vironmental considerations. As pointed out by the court

of appeals (Pet. App. A, pp. 12a-13a), until the public

recently focused on the ecological crises at hand, the

Corps of Engineers had exercised its responsibility in

® Under the 1972 Act, the authority conferred on the Secre-

tary of the Army under the Refuse Act to permit certain

discharges has been rescinded (Sec. 402(a)(5)( 86 Stat. 880).

lage Enyironmental Protection Agency has the responsibility

under the new legislation to administer the permit program

(een. Zand 20, supra).

Soy sae

<4 Be

ey

this area “principally against the discharge of those ma-

terials that [were] obstructive or injurious to naviga-

tion’ (33 C.F.R. (1967 ed.) 209.395; emphasis added).

This is not to say that the Corps viewed the matter of

“pollution econtrol’’ as outside its jurisdiction ; its 1946

regulations, for example, clearly recognized that this

also was an area of its res ibility under the Refuse

Act (33 C.F.R. (1946 ed.) 209.50(d)). But for many

years the chemical and biological content of discharged

effluents was generally not regarded as particularly

significant.

a result, the Corps has, belatedly, been accused of

having been in the past “but sporadically faithful in

screening issuance of section 13 [Refuse Act] permits to

industrial polluters.” Rogers, supra, 119 U. Pa. L.

Rev. at 768. It is true that in only a handful of cases has

a Section 13 permit accompanied an authorization under

Section 10 of the Rivers and Harbors Act of 1899 (38

U.S.C. 403) to discharge industrial waste.” And

the Section 13 permit has apparently been used

8 Section 10 prohibits unauthorized hare ont f ” to navi-

j which could be due to the construction of an outflow

permits appear. See Hearings

ergy, Natural Resources, and the Environment of the Senate

Committee on Commerce on the Effects of Mercury on Man and

the Environment, 91st Cong., 2d Sess., pp. 187, 168, 201 (July

1970) (hereafter “Senate Environment Hearings of 1970”). We

are advised that one of these (Camden, Alabama) was actually 8

Section 10 permit.

29

st as sparingly in connection with author-

-dumpings of dredgings and other refuse ma-

4 ria. s under Section 4 of the Rivers and Harbors Act

0f1905 (33 U.S.C. 419)."

_ ‘The fact that the Corps of Engineers did not focus on

matters of pollution as much as on effects to naviga-

tion is perhaps due in part to some confusion over the

reach of the 1899 statute prior to this Court’s de-

asions in Republic Steel.dnd Standard Oil.* What-

ever the explanation, it is clear that the agency began

to assume a very different attitude with respect to the

significance of environmental considerations shortly

thereafter. As the Assistant General Counsel of the

Corps testified in the Senate Environment Hearings

of 1970 (p. 26), special attention to the control of

industrial pollution became evident, “as a matter of

evolution, from 1966 on * * *.” This was first mani-

fested in a 1967 memorandum of understanding

entered into by the Secretaries of the Army and Inte-

tor with respect to implementation of the Fish and

““\This was reflected in the 1968 regulations, 33 C.F.R.

209.200(e) (2), which stated in relevant part:

_“(2) Section 13 of the River and Harbor Act of March 3,

1899 * * * authorizes the Secretary of the Army to permit the

deposit of refuse matter in navigable waters, whenever in the

judgment of the Chief of Engineers anchorage and navigation

will not be injured thereby, within limits to be defined and

under conditions to be prescribed by him. Although the Depart-

ment has ewercised this authority from time to time, it is con-

fidered preferable to act under Section 4 of the River and

Harbor Act of March 3, 1905 * * *. [Emphasis added.]”

sk n some members of this Court believed the statute

should be read more narrowly. See the dissenting opinions in

republic Steel (362 U.S. at 493) and Standard Oil (384 U.S.

tomer

Ebert > tO Beri ed.) 6 :

4 hide erp ve eas PF

permi

Act. Speaking to the

both’ Section 10‘ and’ aE Te 13, ‘the ‘memorar

dae a porte wre ot 1 hey Oe Se

retary of the Army unless he could ‘‘assure com-

pliance with water quality standards established i in

accordance with law” (33 C.F-R. 209.120(d) (11).

In 1968, the Corps completely revised its general

permit policy; with respect to the issuance of all

pemits affecting navigable waters, the new regu-

lations announced that the agency would evalu-

ate “all relevant factors, including the effect of

the ‘proposed work on navigation, fish and wildlife,

conservation, pollution, aesthetics, ecology, and the

general public interest” (33 C.F-.R. 209.120(d) (1)).

At the same time, the regulation that had provided

that the availability of discharge permits under the

Refuse Act would depend “principally” on whether

- the materials “are obstructive or injurious to naviga-

tion’? (33 C.F.R. (1967 ed.) 209.395) was withdrawn

To be sure, it was not until December 1970—four

months after samples were taken of the discharges it-

volved here—that a formal permit program was set up

under the Refuse A Act (Exee. Order 11574)." But we dis

* Prior to the sampling of PICCO’s discharges into t

Monongahela River on August 7 and 19, 1970, the Corps of

Engineers had announced “gweeping changes in its. regulation

Key Cafe of Binge Now las navigable waterways” (US

rps of Engineers News Release, Washington, D.C. (My

19, 1970)), and had further advised that “new permits” under

agree with the court. of appeals that, until the insti-

tution of those formalized procedures, the Corps of

Kngineers “decline[d] to undertake the responsibility

imposed upon it hy Congress’’ (Pet. App. A, p. 15a).

Congress plainly did not make the Secretary of the

Army ‘‘responsible for administering [a] regulatory

program under Section 13 * * *’’ (Pet. App. A, p. 14a).

Rather, as we have shown, in prohibiting all dis-

charges of refuse matter into navigable waters except

“sewage,” it simply left room for the Secretary to

exercise his discretion to excuse from the general

prohibition any person who applied to him in advance

for permission to deposit the forbidden effluents.

The fact that few persons sought such permission

(App. 173, 174) does not alter the terms of the statute.

Congress imposed no obligation on the Secretary to so-

lieit applications. Most probably, if on his own, he had

undertaken earlier to do so, considerably fewer polluters

would have been able to flout the 1899 law. But his in-

activity in this regard neither repealed, nor provided

those polluters an exemption from, the general prohi-

biti. The Refuse Act imposes upon them the obli-

gation to make prior application for a permit; and it

granted without adequate consideration of the quality of the

eluent” (U.S. Army Corps of Engineers News Release, Wash-

ington, D.C, (July 30, 1970) ). The latter announcement also stated

that “[w]hile permits will be required for all future discharges

into navigable waters and their tributaries,” the principal con-

centration would initially be “on major sources of industrial

Pollution not covered by existing permits.” Copies of these news

releases are appended infra. See also Rodgers, supra, 119 U. Pa. L.

Revi-at'611: (discussing similar news releases issued out of the

Corps of Engineers’ Seattle, Wash., office). We are advised that

the May 1970 news release was also issued contemporaneously out

of the Corps’ Pittsburgh office.

en

32

condemns a8 ériminal any discharge of Tefuse mati,

other than “ 6”, that is made without a permit,”

3. The court of appeals suggests, however, that

PICCO cannot be faulted.for having failed to seeks

federal discharge permit, since such an application

would have been merely to engage in “a charade * **

for something which did not exist’? (Pet. App. A,

p. 16a). This reasoning rests on a misconception that

seems to run throughout the opinion, viz.: that because

there was no formal “regulatory program,’’ Section 13

discharge permits were “ynavailable” (tbid.). That

was not the case. As acknowledged by the court below

(id. at 14a), there was (and is) no administrative

policy “to deny permits on a blanket basis to all seek-

ing to discharge industrial refuse having no adverse

effect on navigation.” We have pointed out that, even

in the earlier years when the concern of the Corps

of Engineers was “principally” directed to matters of

navigation, the Secretary exercised his permit author-

ity under the Refuse Act on several occasions (supra,

p. 27-29). And see United States v. Republic Steel Corp,

996 F. 2d 875, 879 (C.A. 7), on remand from 362 US

thrust of the testimony by the Assistant General Cout-

sel of the Corps of Engineers during the Senate Ex

vironment Hearings in May of that year (pp. 28-29).

% See also the General Counsel’s testimony. Senate Envirw

ment Hearings of 1970, pp. 430-431.

Public announcements by the Corps in May and

July. indicated the same thing (supra, n. 33). And in

November 1970, before a “regulatory program’’ had

gone into effect, the Secretary acccpted and agreed

to consider applications for Section 13 permits to

discharge effluents containing mercury. 1 Environment

Reporter, Current Developments, pp. 782-783 (1970).

It is thus clear that if PICCO had submitted an

application to discharge’ refuse matter from its iron

and concrete pipes protruding into the Monongahela

River, the Secretary would have given its application

due consideration. It should, of course, be assumed,

as was pointed out on remand from this Court’s de-

cision in United States v. Republic Steel Corp., supra,

286 F.2d at 879, that the ‘‘government officials who

bear the responsibility [would] not [have] act[ed]

arbitrarily or capriciously * * *.” *

). wit TE

PIO00’s che lent lta ‘ov cil )

“TaaT PY Hap BREN APPIRMATIVELY MISLED BY ‘THE

)OORPS OF ENGINEERS TO RELIQVE IT DID NOT NEED‘4

PERMIT FOR THESE DISCHARGES

The court of appeals divided over whether PICOO’s

August 1970 industrial discharges at issue here could —

be justified on the ground that the company had been —

“misled by the interpretation given to the statute by

the Corps of Engineers” (Pet. App. A, p. 19a). The

claim is essentially that because certain published

regulations of the Corps pertaining to Section 13 fo-

cused primarily on discharges that impede navigation,

PICCO had’ been led to believe that the permit re-

quirement ‘under the 1899 statute did not apply to

the depositing of non-impeding pollutants into the

river. The regulations on which the company relies,

however, are outdated, and do not reflect the Corps’

understanding of the Refuse Act prohibition after

1968. In view of the post-1968 regulations issued by

the Corps, and the clear pronouncements of this Court

in Republic Steel and Standard Oil, PICOO cannot,

we submit, avail itself of the defense that it was

“affirmatively misled * * * into believing that a per-

mit was not necessary in its situation” (Pet. App. A,

p. 25a).

A. The regulatory provisions offered by PICCO to

support its due process claim antedate the clear change

by the Corps of Engineers in its policy with respect to

water pollution control, which we have discussed

supra, pp. 27-33. While those earlier regulations

Peay iin: 35

y

‘feither: were, nor purported to be, authoritative in-

terpretations ‘of the scope of Section 13 (compare

Raley vi: Ohio; 360 U.S. 423), they do represent what

the ‘Corps ther conceived as its enforcement authority

under the Refuse Act. We cannot deny that in defin-

ing its responsibilities under the 1899 statute as “‘di-

rected “ * “ principally against the discharge of those

materials that are obstrugtive or injurious to naviga-

tion” \(33.C.F.R. (1967 ed.) 209.395), the agency for

many years viewed its role narrowly. But PICCO

is in no position to excuse its conduct because of these

earlier pronouncements.

In 1968, the regulation quoted above, on which

PICCO places principal reliance, was withdrawn. In

its'‘stead, the Corps issued a new general permit

policy, announcing that “‘pollution’”’ and “conserva-

tion’’ factors would be considered in passing on appli-

cations for permission to use navigable waters, 33

C.F.R. 209.120(d) (1).* This new policy had been fore-

* See p. 30 supra. While the majority below suggests that

subsection’ 209.200(e) (2) of the new regulations can be read as

limiting the Section 13 permit authority to discharges that im-

pede navigation, such a reading takes that regulatory provision

wholly out of context. The subsection cited is part of Section

209.200(e), entitled “Dumping grounds,” which is concerned

with the problem of transporting and dumping refuse in desig-

nated areas within navigable waters. In subsection (2), the

) Tecognizing that Section 13 permits might be sought in

connection with the dumping of dredgings and other refuse

matter; served notice that in such circumstances it would “act

under Section 4 of the River and Harbor Act.” This subsection

was retained. in. 1971 when the Corps promulgated its regula-

— the Refuse Act Permit Program (33 C.F.R.

1).

1 Ay

FAK,

od

1

Me

36

shadowed almost a year earlier in a memorandum

between the Secretaries of the Army and Interior out

lining their responsibilities under the Fish‘and Wilé

life Coordination Act (16 U.S.C. (1964 ed.) 662(a)).

That memorandum, which was incorporated into the

Corps’ regulations, stated clearly that environmental

considerations, including ‘‘compliance with water qual-

ity standards,” would bear directly on the deterni-

nation whether to issue permits under Section 10 and

Section 13 of the Rivers and Harbors Act. See 3

C.F.R. 209.120(d)(11). Similarly, in its regulations

promulgated in December 1968, dealing with its

permit authority under 33 U.S.C. 403 (obstructions

to navigation), the Corps served notice that appli-

eants for permits for outfall sewers from industrial

plants—which is what PICCO has maintained its

pipes are (supra, p. 5)—would be required t

furnish information on the effects of the dis

charged effluent on the environment. 33 C.F.R.

209.130(b) (18) (iii).

Thus, the Corps’ regulations clearly reveal that by

1968 it had abandoned its former policy of consider

ing applications for permission to conduct activity in

navigable waters almost entirely from the perspective

of the adverse effect that might result to navigation.”

Moreover, in determining whether the company’s

* The plain meaning of the changed regulations was corrob-

orated by the Corps’ public announcement in late July of

1970 that Section 13 permits were required in cases Such as the

present one to avoid the prohibition of the Refuse Act (s#

n. 33, supra).

37

discharge.of its refuse matter into the Monongahela

River can properly be attributed to the manner in

which the Corps of Engineers construed the statute,

consideration should also be given to the proposed

regulations to implement the newly-announced Re-

fase Act Permit Program, first published for public

comment in December 1970 (35 Fed. Reg. 20005).

These proposed regulations explicitly stated (pro-

posed 209.131(d)(1)): —

Except as otherwise provided in the Refuse

Act * * * all discharges or deposits into navig-

able waters of the United States or tributaries

thereof are,.in the absence of an appropriate

Department of the Army permit, unlawful. The

fact that official objection may not have yet

been raised with respect to past or continuing

discharges or deposits should not be interpreted

as authority to discharge or deposit in the ab-

sence of an appropriate permit * * *,

This policy was, to be sure, expressed publicly several

months after the refuse matter emanating from

PIOCO’s pipes had been sampled by two school

teachers on August 7 and 19, 1970 (App. 16-41). But the

company was not served with the criminal informa-

tion in this case until April 6, 1971 (App. 3-4). If, as

claimed, its practice of depositing industrial waste

into the Monongahela River without seeking a permit

had been based on the Corps of Engineers’ construc-

tion of the Refuse Act, PICCO certainly should have

submitted an application for permission to continue

its discharges ‘during’ the first three months of 191;

however, ‘it did not do so (App: 237)" oe

In°view of the clear pronouncements by the Corp

after’ 1968 that its enforcement policy with respeet

to the navigable waters of this country included pr.

tection against pollution as well as the preservation

of safe navigation, there is, we subniit, no sound ree

son to excuse PICCO’s delinquency in this regard on

the ground that it had Béen “affirmatively misled”

by the agency to believe that its activity was lawful”

*" The company was advised by letter in November 1970 that its

discharges were “unlawful” and required “a permit issued by the

Department of the Army under the Refuse Act, 33 U.S.C. 407

(App. 170). An officer of PIOCO testified at trial on June %,

1971, that a discharge application had “been underway Since De-

cember [1970]” (App. 175), but the company’s first request for

Section 13 permit was made on application forms issued in April

and May 1971 (App. 232, 237). Nothing in the proposed reguls-

tions encouraged any delay in filing for a permit. (Compare regu-

lations that became effective after the criminal information was

filed in this case, which required that applications be filed no later

than July 1, 1971 (33 C.F.R. 209.131(d) (3).} To the contrary,

they specifically advised that those who continued to discharge

refuse without a parmit should not rely on the absence of an “ofi-

cial objection” in the past to “preclude the institution of legal pro

ceedings in appropriate cases for violation of the provisions of

the Refuse Act” (35 Fed. Reg. 20005). ©

* PICCO: also makes reference to a statement made to it

vice-president in 1949 by a member of the Corps of Engi-

neers, which purportedly indicated that at that time m

permit would be necessary if the discharges would not im

pede navigation (App. 176-177). This alleged statement was made,

however, during a period. when the agency admittedly took

a much narrower view of its enforcement responsibilities. More

Over, it preceded by a tiumber of years the decisions of this

Court in Republic Steel and Standard Oil. Indeed, at that

time, the industrial plant involved here was not even in op

eration (App. 184). Thus, the statement, if made, is of little aig-

nificance to the due process question in this case.

~B. This is especially :sethers, where, as noted by the

ge. Who, dissented. below on this issue, “the judicial

of the government has elearly: deelared. the

contrary” (Pet. App. A, pp. 26a-27a), As we have

pointed out, this Court declared in Standard Oi] (384

US. at 230) that “{t]he word ‘refuse’ [as used in the

Act}. inclndes:.ail foreign substances and pollutants

apart from those ‘flewing from streets and sewers and

passing-therefrom in a liquid state’ into the water-

course.” Even before that, the Court held in Republic

Steel, supra, that day-to-day discharges into navigable

waters of industrial waste (which in that case did not

differ significantly from the waste matter involved

here) violate Section 13 in the absence of a permit

from the Secretary of the Army. These rulings were fol-

lowed by the court below in a previeus case. See

United States v. Esso Standard Oil Co. of Puerto

Rico, 375 F. 24 621 (C.A. 3).

Thus the scope of the criminal prohibition had been

authoritatively settled well before PICCO made the

present illegal discharges into the Monongahela River.

The argument that the Refuse Act prohibited only un-

authorized discharges causing an impediment to navi-

gation had been unequivocally rejected. We submit

that PICCO canpot now avoid this judicial authority

by claiming it had been misled into believing the law

was otherwise by an administrative enforcement policy

that had clearly been abandoned several years before

the offenses involved here were committed.

40

For the Having esi, ti dail th at

of appeals should be reversed ‘and the judgment of

conviction should be creanet erage

+ Respectfully submitted. tia

‘nwa ‘NN. Gpiswo,

Solicitor General.

Kani FRIZZELL,

»\ Assistant Attorney General.

Deputy Assistant Attorney General.

Wwa. Braprorp REYNOLDS,

Assistant to the Solicitor General.

_ Baymonp N. ZaGong,

James R. Moors,

Asis Attorneys.

Fepsruaky 1973.

" : APPENDIX

pe. NEWS RELEASE

DEPARTMENT OF THE ARMY,

OFFICE OF THE CHIEF OF ENGINEERS,

_ Washington, D.C. 20314.

For Public Release: Tuesday, May 19 1970

‘ CORPS OF ENGINEERS REVISES PERMIT REGULATIONS

~ The Corps of Engineers announced today sweeping

changes i in its regulations pertaining to permits for work

in navigable waterways. These changes, which were ap-

proved by Secretary of the Army, Stanley R. Resor, and

the Chief of Engineers, Lieutenant General F. J. Clarke,

require that greater emphasis be given to environmental

values i in evaluating permit applications.

_ The changes include:

- A statement that “The decision * * * will be based

* * * on an evaluation of the impact of the proposed

work on the public interest.” “Public interest’’ is de-

seribed as including factors such as: “navigation, fish

and wildlife, water quality, economics, conservation,

aesthetics, recreation, water supply, flood damage pre-

‘vention, ecosystems and, in general, the needs and wel-

faré of the people.” This change clarifies the standard

ains which permit applications are to be judged and

m that the Corps is no longer concerned only

a the impact which a proposed project may have on

navigation.

(41)

42

A new policy narrowing the function of harbor lines.

The new regulations make it clear that harbor lines are

merely guidelines for determining, with respect to the

impact on navigation interests alone, the offshore limits

of construction. Persons wishing to undertake work in

navigable waters shoreward of harbor lines are now re-

quired to apply to the Corpe for work permits. The pre-

vious regulations allowed riparian owners to erect open

pile’ structures or to'\ undertake solid fill construction

shoreward of established harbor lines without obtaining

a permit. :

A clarification of the responsibilities of the Corps of

Engineers and the Department of the Interior with re-

spect to off-coast dil drilling operations. The new regu-

lations note that the Department of the Interior is re-

sponsible for considering the impact which such opera-

tions may have on the total environment at the time of

the selection of submerged lands of the Outer Conti-

nental Shelf for inclusion in the mineral leasing program

administered by the Department of the Interior but

provide for consideration by the Corps of the “impact

of the proposed work on navigation and national

security.” :

Revised regulations on the issuance of public notices

and the holding of public hearings on permit applica-

tions. Except in cases involving minor work where it.

is clear that the proposed work would have no significant

impact on environmental values, notices containing in-

formation on the proposed work are to be posted in post

offices or other public places and sent to a broadly defined

list of affected interests. “Doubtful cases will be resolved

-

infaver of public notice and normal processing.” Inter-

ested parties are to be given a “reasonable time,” defined

as not less, than 30:days except in emergency cases, to

express their views. Public hearings are to be held when-

_ ever there is a manifestation of public interest in a per-

mit application or whenever requested by Federal, State,

or local public authorities. |

A tequirement that applicants not only define the

areas they want to fill, but describe the type and location

of structures proposed to be erected on the fill, Pre-

viously, applicants were not required to provide infor-

matier, concerning subsequent use of filled tracts.

A requirement that applicants whose proposals in-

volye outfall works must provide details on the character

of the effluent, ineluding chemical content, water tem-

perature differentials, toxins, sewage, type and quantity

of suspended solids, amount and frequency of discharge,

and the like ; along with the proposed method of instru-

mentation, and arrangements for bearing the expense

of removal of solids. Before taking action on any such

permit applications, the Corps’ District Engineers are

required to consult with regional directors of the Depart-

ment of the Interior and with Federal and State agencies

having water pollution abatement responsibilities,

_ New permit forms for implementing the regulation

changes have been furnished Corps of Engineers field

offices. Among other things, these forms stipulate that

observance of regulations of the Federal Water Quality

Administration and State water-pollution control agen-

cies made a condition of the permit, and permittees must

make every reasonable effort to carry Out approved work

44

in a manner that will minimize any adverse impact on

fish, wildlife, and natural environmental values, =

' A special condition in permits authorizing the filling

in of navigable waters restricts permittees from erecting

buildings or structures not contemplated at the time of

issuance of the permit or from significantly changing the

outward appearance of approved structures or the use

to which the filled tract is dedicated without first obtain-

ing a permit modification.

_ A special condition in permits for outfalls restrains

permittees from changing the nature of their effluent

without a permit modification. Such permittees are also

required to maintain adequate records of the nature and

frequency of discharges and to provide discharge infor-

mation to the District Engineer upon request.

[News Release]

DEPARTMENT OF THE ARMY,

OFFICE OF THE CHIEF OF ENGINEERS,

Washington, D.C. 20314.

For Immediate Release, J uly 30, 1970

CORPS OF ENGINEERS ANNOUNCES NEW PERMIT

REQUIREMENTS

The Corps’ revised requirements are in compliance

requirements under the Refuse Act (33 U.S.C. 407 ) con-

cerning all discharges into navigable waters. Permits

will be required for all industrial discharges into navi-

gable waters and their tributaries. New permits will be

required where existing permits were granted without

adequate consideration of the quality of the effluent.

Permits will also be required for current discharges into

navigable waters where no permits have been granted,

Applicants for new permits are now required to iden-

tify the character of the effluent and to furnish pertinent

data such as chemical content, water temperature differ

entials, toxins, sewage, quantity of solids involved and

the amount and frequency pf discharge.

The Corps of Engineers today announced new permit

with the Environmental Policy Act of 1969 which re-

quires agencies to consider environmental impact in the

administration of public laws, and with the Water

Quality Improvement Act of 1970 which requires appli-

(45)

46

eants for Federal permits to file a certification frome

appropriate State that the discharge “will not violate

applicable water quality standards.”’ Under the reviad

procedures, the effects of discharges on water ¢ uality

will be considered in processing the permit. s

While permits will be requized for all future dj

charges into. navigable waters and their tribute

Corps of Engineers will initially concentrate on maj

sources of industrial pollution not eevered by existing

permits. The Corps hopes that through widen

knowledge of its new permit requirements including

State certification, it will, along with other Fedeml,

State, and local anti-pollution activities, encouragei

dustries to accelerate their own anti-pollution efforts,

All actions under the Refuse Ses bering, Nee 7 ua

ity implications are being closely coordinated w

Federal Water Quality Administration to insure unit

in the Federal Water anti-pollution program.

a

1.¢. GOVERMMERT PRINTING OFFICE: 1979