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

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Supreme Court of the Anited States

Ocrosger Tzrm, 1972.

No. 72-624

UNITED STATES OF AMERICA,

Petitioner,

v8.

PENNSYLVANIA INDUSTRIAL CHEMICAL

CORPORATION,

\ Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT.

BRIEF AMICUS CURIAE ON BEHALF OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES

OF AMERICA.

Mitton A. Suita,

1615 H Street, N. W.,

Washington, D. C. 20006,

Henry L. Prrrs,

208 South La Salle Street,

Chicago, Illinois 60604,

Coumsel for the Chamber of

Commerce of the United

States of America.

THE GUNTHORP. WARREN PRINTING COMPANY, ONICAGO

Ne ee

INDEX.

ae PaGE

Interest of the Amicus Curiae ...............00+0. 1

Question Presented ...........cccccccccccccasccsees 3

ee OF BONO oii i ccccnavesiccdsdcciocs 3

Argument

L Section 13 of the Rivers and Harbors Act of

1899 (33 U. 8S. C. § 407) doss not apply te the

dchiigis of On tegen ee :

case eeereeeeeet Pee eeeeee eeeeeeveaee errereceere *?.

A. Legislative history and contemporancous |

construction of Section 13 of the 1899 Act

when and after it was enacted show it was

not intended to apply to discharges having

no effect upon navigation .............. 6

B. The express language of Section 13 and its

long history of administration by the execu-

' tive department demonstrates that it is a

MOVIGNGEE SUNIEIN (5... 55s... 11

C. The judicial construction of Section 13 con-

firms this administrative interpretation.. 16

1. Decisions of this Court do not support

the government’s present contention .. 16

2. Decisions of the Courts below are in-

conclusive on the navigation question... 19

IL. Section 13 of the 1899 Act and theeFederal

Water Pollution Control Act must be construed

together so as to give the fullest possible effect

to the central purposes of both .............. 21

A. History of the Federal Water Pollution

weestestices a Co ET oe re 23

B. If the Control Act and Section 13 are not

ti

C. Adoption of Point I of the Government's

brief would emasculate the Control Act, as

amended by Congress in 1972

III. If Section 13 and the Control Act are not ac

commodated, their application violates the Dae

Process Clause

Conclusion

CrraTions.

Cases.

Baggett v. Bullitt, 377 U. S. 360 (1964)

Belden v. Chase, 150 U. S. 674 (1893)

Chambers-Liberty Counties Navigation District v. Par-

ker Brothers & Co., 263 F. Supp. 602 (S. D. Tex.

Cramp v. Board of Public Instruction, 368 U. S. 278

(1961) ?

Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140

(N. D. Ala. 1971), aff’d 456 F. 2d 1294 (5th Cir.

1972), cert. den., 41 U. S. L. W. 3442 (Feb. 20,

Jordan v. De George, 341 U. S. 223 (1951)

La Merced, 84 F. 2d 444 (9th Cir. 1936)

Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956) 27

McGuire Shaft and Tunnel Corp. v. Local Union No.

1791, United Mine Workers of America, ©... F. 2d

.4 20 WH Cases 1147 (T. E. C. A. Feb. 1, 1973).. 3

Nebbia v. New York, 291 U. 8. 502 (1934)

Nicroli v. Den Norske Afrika-Og Australielinie, etc.,

. 832 F. 2d 651 (2d Cir. 1964)

iii

Papachristou v. City of Jacksonville, 92 S. Ct. 839

DE Soe shh eb kie dines be cece receeeccceeeeecees 36

Richards v. United States, 369 U. S. 1 (1962) ........ 27

Shell Petroleum Co. v. Peschken, 290 F. 2d 685 (3d

TSE RASS Slee ste 6 15

Sinclair Refinery Co. v. Atkinson, 370 U. 8. 195

Rg Ee ie Sir og Eg 27, 29, 30

The Boys Markets, Inc. v. Retail Clerks’ Union Local

BO WO ie ee CPN ois hobo svc cs divest 2, 27, 29

Gee ¥. cee, Gee CU; © 1 (1008)... oS voc oe 15

United States v. Ballard Oil Co. of Hartford, 195 F.

TE I os ns circ ivecdcccchescscce 19

United States v. Bigan, 274 F. 2d 729 (3d Cir. 1960).. 21

United States v. Esso Standard Oil Co. of Puerto

Rico, 375 F. 2d 621 (3d Cir. 1967) .......... : an 20

United States v. Granite State Packing Co., 470 F. 2d

ee (iat Cir, F078) oo oss ce uee. Lessee okie bions xs 21

United States v. Hutcheson, 312 U. S. 219 (1941) .... 27

United States v. Interlake Steel Corp., 297 F. Supp.

edb IR oe BE at i RR en ed 20

United States v. Reese, 92 U. S. 214 (1875) .......... 36

United States v. Republic Steel Corp., 362 U. S. 482

ee ane rer Bones 6, 7, 12, 14, 16, 17, 29

United States v. Standard Oil Co., 384 U. S. 224

SNE elrksacueeeies Atel 7, 16, 17, 18, 19, 29

‘United States v. United States Steel Corporation, Civil

eae Oe Oe Oe ee OO) oko isis asses 5

West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) 35

Willamette Iron Bridge Co. v. Hatch, 125 U. 8S. 1

iv

Statutes and Regulations.

Exec, Order 11574, 35 F. R. 19627, Dec. 23, 1970 . .12, 18, 3

Federal Water Pollution Control Act of 1948 ...... 23, 25

Federal Water Pollution Control Act, 33 U. S. ©,

C5 TIGA, OC WOR. svc iiasic icine 2, 3, 20, 21, 24, 38

Federal Water Pollution Control Act, 33 U. S. ©,

CAME Abas kinwa ks baneekcaeeeses as 22, 23, 24, 25, %

BERG cece cea so fin bake tkebandben scotia 28, 29

Federal Water Pollution Control Act Amendments of

1972, Pub. L. 92-500, 86 Stat. 816 ..4, 31, 32, 33, 34, 35, 37

Federal Water Quality Act of 1965, Pub. L. 89-234,

WME OE... 3k. 3, 17, 22, 24, 29

Bt RSS py re Pe ree ere 27

New York Harbor Act of 1888, 33 U. S. C. §441 ...... 8, 20

Norris-La Guardia Act, 29 U. S. C. §104 ...... 27, 28, 29

Reorganization Plan No. 2 of 1966 (31 F. R. 6857) .... 2

Reorganization Plan No. 3 of 1970 (35 F. R. 15623) .. 2

Rivers and Harbors Act of 1890 .............000.. 7, 8,9

Rivers and Harbors Act of 1894 ................ 7, 8, 10

SE ei ee 14, 17, 25, 33

OR is ici ncc cs oN weenwes ou esceekas cs beeen Passim

Rivers and Harbors Act of 1899, 33 U. S. C. §408 ..... 2

Rivers and Harbors Act of 1899, 33 U. S.C. § 409 .... 8

Rivers and Harbors Act of 1899, 33 U. 8. C. §411.... 8

Vv

Rivers and Harbors Act of 1899, 33 U. S.C. § 412 .... 28

Rivers and Harbors Act of 1899, 33 U. S.C. § 413 .... 28

Rivers and Harbors Act of 1905, 33 U.S.C. §419.... 13

Water Quality Improvement. Act of 1970, Pub. L.

Oe | ere eT reece 25

eS ergs yee r Teer 7

OG. BF. Th. BRE | cv a Rx cde wccatsvecaccenns 13

Miscellaneous.

Comment, ‘‘ Discharging of New Wine into Old Wine-

skins; the Metamorphosis of the Rivers and Har-

bors Act of 1899,’’ 33 U. Pitt. L. Rev. 483 (1972) .. 7

8 Comm. Tee. GUGG CRBBR). onc nnn ccc cccccccssccess 9

$3 Cong. Bec. 2306 (1GBB) . 2... cnc cccccwcceesece 9°

1 Environment Reporter, Current Developments, 567.. 13

2 Environment Reporter, Current Developments, 1487 33

3 Environment Reporter, Current Developments, 793

eS Bee ee er rere eee ome 32, 38

Hearings on Water Pollution Control Legislation—

1971 (Oversight of Existing Programs) before the

House Committee on Public Works, 92d Cong., Ist

RS eee te ee me re rp ea oer pe 11, 14, 15

H. Doc. No. 293, 54th Cong. 2d Sess. .............. 9

H. Doc. No. 392, 77th Cong., Ist Sess. .............. 37

National Water Commission, Review Draft of Report

Bt et: | rere yr ree 16

21 Opinions of the Attorney General 305 ............ 10

Rodgers, Industrial Water Pollution and the Refuse

Act: A Second Chance for Water Quality, 119 U.

ee ei ee er ere eee 12, 26, 30

vi

Sandler, The Refuse Act of 1899: Key to Clean Water,

58 A. B. A. Journal 468 (1972) ................ 26, %

U. S. Department of Justice, Guidelines for Litigation

Under the Refuse Act (1970), 1 Environment Re-

porter, Current Developments, 288 (1970) ........ 7

_

IN THE

Supreme Court of the Anited States

Ocroser Term, 1972.

No. 72-624

UNITED STATES OF AMERICA,

Petitioner,

vs.

PENNSYLVANIA INDUSTRIAL CHEMICAL —

CORPORATION,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT.

~,

—

BRIEF AMICUS CURIAE ON BEHALF OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES

OF AMERICA.

INTEREST OF THE AMICUS CURIAE.*

The Chamber of Commerce of the United States is a

national association of more than 3,600 state and local

chambers of commerce and trade associations with an

underlying membership of over five million business firms

and individuals, in both metropolitan and rural areas.

* Pursuant to Supreme Court Rule 42(1), this brief is filed with

the written consents of all parties, which have been lodged with

the Clerk of the Court.

ee

2

Direct business memberships number in excess of 44,00)

with activities ranging from raw material extraction to

production of finished goods, as well as many types of

services.

The Government contends in this case that, notwith.

standing the federal water control program developed

under the Federal Water Pollution Control Act, Section

13 of the Rivers and Harbors Act of 1899 established an

absolute ban on all industrial discharges that would intro.

duce into the receiving waters any chemical, biological or

other change whatever, unless a discharge permit is first

obtained from the Secretary of the Army. As noted in the

opening paragraph of the Argument, infra, this sweeping,

all-encompassing interpretation of Section 13 would re.

quire the Court to find that every agricultural, industrial

or other private water user discharging into the nation’s

waterways has been operating in violation of federal crimi-

nal law throughout the 20th century.

Many members of the Chamber have made expenditures

of substantial time, technical effort, and financial resources

to comply with the nationwide program for water pollt-

tion abatement and control developed during the past dee-

ade pursuant to the Federal Water Pollution Control Act.

That program could be destroyed if the Government's

contentions in this case were adopted. In order to present

its views on questions of vital public concern of this char-

acter and magnityde, the Chamber has participated as

amicus curiae in“ number of instances in both this Court

and the lower federal courts, including one of the principal

cases relied upon by the Chamber in the case at bar, namely,

The Boys Markets, Inc. v. Retail Clerks’ Union Local 770,

398 U. S. 235 (1970).

-

QUESTION PRESENTED.

Does Section 13 of the Rivers and Harbors Act of 1899

(33 U. S. C. § 407) provide an absolute prohibition against

the discharge of all process, cooling or drainage water into

navigable waters or tributaries (except that flowing from

public streets and sewers), unless a discharge permit is

first obtained from the Secretary of the Army?

SUMMARY OF ARGUMENT.

It is the position of amicus, Chamber of Commerce of

the United States of America, that, for the reasons men-

tioned below and more fully developed in the Argument

following, the discharges of all process, cooling and drain-

age water into the nation’s waterways are regulated under

the Federal Water Pollution Control Act, not Section 13 of

the 1899 Act, and this construction does not impair the

authority of the Secretary of the Army to maintain naviga-

tion under the latter Act.

The legislative history of Section 13, which was one

section of a compilation of prior statutes adopted to pro-

tect the navigational interests of the federal government,

supported by its interpretation and administration by

the executive branch of the government for 70 years, shows

that Section 13 was intended to be a navigation, and not

a pollution control, statute.

Moreover, commencing with the adoption of the Federal

Water Quality Act of 1965 and the subsequent amendments

of the Federal Water Pollution Control Act, Congress

4

made it clear beyond doubt that discharges relating to

the control and abatement of water pollution were to be

regulated under those statutes, and not under the Rivers

and Harbors Act of 1899. Construing the older navigation

law with the later pollution law in this fashion gives the

fullest possible effect to the central purposes of both,

thereby avoiding the irreconcilable conflict which would

result from the Government’s suggested construction of

the 1899 enactment. (See pages 24 through 30, infra.)

Of even greater portent for the future is the fact that

the Govertiment’s interpretation of the 1899 law would

emasculate the massive water control program now being

implemented throughout the country, as mandated by

Congress in the Federal Water Pollution Control Aet

Amendments of 1972.

Finally, if the 1899 law and the later control law are

not construed together in the foregoing manner, they are

so vague, arbitrary and conflicting, as applied, to be a

violation of the Fifth Amendment.

It follows, therefore, that in the case at bar, which un-

deniably involves a discharge of industrial process water,

the judgment of the District Court was in error; the order

of the Court of Appeals, to the extent that it reversed the

judgment of conviction, should be affirmed; and the case

should be dismissed.

ARGUMENT.

The Government asserts in its Brief that Section 13 of

the Rivers and Harbors Act of 1899 (hereinafter ‘‘the

1899 Act’’) provides an absolute prohibition against in-

dustrial discharges, absent a prior permit from the Sec-

retary of the Army, describing it variously as a ‘‘flat ban’’

(p. 16), a declaration of ‘‘simple absolutes’’ (p. 15), and

a “general prohibition’’ (p. 27).’ In this case the ‘‘flat

ban’’ is only sought to be invoked against industrial water

users, but there is nothing in Section 13 that limits its

application to industries. By its terms the section applies

to discharges ‘‘. .. from the shore, wharf, manufacturing

establishment, or mill of any kind . . .’”’ (Emphasis added.)

The words ‘‘industry’’ or ‘‘industrial’’ appear no place

in the section, and the legislative history of the 1899 Act

and its statutory antecedents clearly shows that the prac-

tices and abuses intended to be proscribed were not limited

to the activities of those engaged in industry. Indeed, it

would be absurd to determine the lawfulness of a discharge

by the vocation of the party making it.

1. This ‘‘no discharge’’ argument has been used by the Depart-

ment of Justice in other so-called Refuse Act suits. In a pending

ease in the Northern District of Indiana, United States v. United

States Steel Corporation, Civil No. 71 H 52, in answering de-

fendant’s interrogatories the Government has defined ‘‘refuse

matter’’ as including: ‘‘all substances and pollutants (including

heat or the absence thereof) which when introduced into water or

a solution in which water is the solvent, are (1) totally foreign to

that water or solution, or (2) increase the amount or concentra-

tion of such substances or pollutants (other than water) in that

water or solution, or (3) cause a significant ecological disturbance

in the receiving water or solution.’’

#

SECTION 13 OF THE RIVERS AND HARBORS AOT OF ign

(33 U. 8. 0. § 407) DOES NOT APPLY TO THE DISCHARGES

OF THE RESPONDENT CHALLENGED IN THIS Cage

The 1899 Act was enacted to protect the navigable capac.

ity of the nation’s waterways and not as a pollution con.

trol measure in the modern context. It would be ludicrons

to attribute to a 19th century Congress, as Mr. Justice

Harlan once observed, an intent to establish forthwith

‘fan absolute standard of purity which not only bore no

relation to the prevailing practice of sewage disposal’ at

the time, but also is impossible to achieve even under

present day technology.’’ United States v. Republic Steel

Corp., 362 U. S. 482, 506 (1960). We shall not burden the

Court by inclusion of quotations from respected scientific

experts to support the self-evident fact that the extent

and complexity of the ecological problems of the 1970's

about which all of us must be concerned were not even

suspected in the 1890’s and are not fully understood by

some even today.

A. Legislative History and Contemporaneous Construc-

tion of Section 13 of the 1899 Act When and After It

Was Enacted Show It Was Not Intended to Apply to

Discharges Having No Effect Upon Navigation.

The 1899 Act was enacted as a compilation of earlier

statutes for the protection of the navigability of the

nation’s rivers, harbors, and other interstate water-

ways. Its legislative history clearly establishes that

the purpose of the Act was the furtherance of navigation

and the avoidance of considerable expense then being im-

posed upon the federal government in dredging the rivers

and harbors of the United States which were becoming

_ ——

7

obstructed by intentional dumping of garbage, dredgings,

and other kinds of solid wastes. Much of this history was

set forth in Justice Harlan’s dissenting opinion in United

States v. Republic Steel Corporation, 362 U. S. 482, 493

(1960) and was touched upon by Justice Douglas in United

States v. Standard Oil Company, 384 U. S. 224, 230 (1966).

A thorough treatment of the legislative history of the

relevant acts is found in Comment, ‘‘Discharging of New

Wine into Old Wimeskins; The Metamorphosis of the

Rivers and Harbors Act of 1899,’’ 33 U. Pitt. L. Rev., 483,

494-508 (1972).

The series of enactments which resulted in the Rivers

and Harbors Act of 1899 were prompted by the decision

in Willamette Iron Bridge Co. v. Hatch, 125 U. 8. 1 (1888),

which held that there is no federal common law protect-

ing the navigability of the nation’s waterways.

The first congressional enactment concerning discharges

in navigable waters was designed to protect New York

Harbor and was adopted in 1886, the relevant section of

which appears as a historical note, 33 U. S. C. A. § 441

p. 170 (1970). This statute was superseded by the Act

of June 29, 1888, now appearing as Title 33 U.S. C. § 441,

which prohibits the discharge into the harbor of New

York (and into other harbors later added), of ‘‘refuse,

dirt, ashes, cinders, mud, sand, dredgings, sludge, acid

or any other matter of any kind, other than that flowing

from streets and sewers, and passing therefrom in liquid

state.’?

Legislation of general application to all of the nation’s

waters was first enacted in 1890. Section 13 of the 1899

Act (now § 407 of Title 33 U. S. C.) was preceded by § 6

of the Rivers and Harbors Act of September 19, 1890 (26

Stat. 453) and §6 of the River and Harbors Act of Sep-

tember 18, 1894 (28 Stat. 363). The former provision, some-

8

times referred to as the ‘‘Dolph’’ bill, enacted ‘in 189,

provided :

‘‘that it shall not be lawful to cast, throw, i or

unload ... from or out of any ship,...or.

facturing establishments, or mills of any kind pre;

ever, any ballast, stone, slate, gravel, earth, rubbish,

wreck, filth, sludge, edgings, sawdust, slag, cinders,

ashes, refuse, or other waste of any kind, into any

port, road, roadstead, harbor, haven, navigable river,

or navigable waters of the United States which shall

tend to impede or obstruct navigation, or to deposit or

place, or cause, suffer or procure to be deposited or

placed, any ballast, stone, slate, gravel, earth, rubbish,

wreck, filth, sludge, edgings, sawdust, or other waste

in any place or situation on the bank of any navigable

waters where the same shall be liable to be washed

into such navigable waters either by ordinary or high

tides, or by storms or floods, or otherwise, whereby

navigation shall or may be impeded or obstructed,”

(Emphasis added.) 26 Stat. 453.

It further provided that such discharges might be allowed

in places where they did not interfere with navigation.

The purpose of the 1894 Act was to aid in the enforce-

ment of the 1890 statute quoted in part above, by provid.

ing for im rem actions against vessels discharging in viola-

tion of its terms, borrowing from the provisions in the

New York Harbor Act of 1888. During debates preceding

passage of the 1894 Act, one of the members of the House

Rivers and Harbors Committee, who was also the floor

manager of the bill, in response to a contention that his

committee had no business adding regulatory provisions

to an: appropriation bill, said the committee’s jurisdiction

covered protection of navigation channels and protection

against shore erosion, and concluded by asserting:

‘‘and certainly it covers the questions of the filling up

of the navigable waters by deposits made in harbors

or in rivers, and of the establishment of harbor lines,

cap SP Ug aia ta iu na nn as esearch

9

matters which relate strictly to the improvement and

maintenance of navigation.’’ (Emphasis added.) See

26 Cong. Rec. 4358 (1894).

These precursors of Section 13 of the 1899 Act were

compiled and codified by the Secretary of the Army and

the Corps of Engineers by direction of Congress in H. Doc.

No. 293, 54th Cong., 2d Sess. (Feb. 15, 1897). Section 5 of

the draft legislation proposed in that report became Sec-

tion 13 of the 1899 Act, the section under which the prose-

cution of PICCO was undertaken. The notable change of

the redraft was the deletion of the long lists of substances

specified in the 1890 version in favor of the general term

“refuse matter of any kind or description’’. The phrase,

“which shall tend to impede or obstruct navigation’’ which

appeared in the 1890 act quoted above was omitted in the

first portion of the codification, though navigation and

anchorage were repeatedly referred to throughout the new

section. For the reasons set forth below, the phrase was

either considered unnecessary or was inadvertently omitted,

unless it is concluded that the compilers intended to per-

petrate a fraud upon the Congress. In the debates before

the Senate, Senator Frye, the Chairman of the Senate

Rivers and Harbors) Committee, offered the bill as an

amendment to the annual Rivers and Harbors Appropria-

tion Act. It was suggested that the Clerk dispense with

the reading of it because:

“Tt was referred to a subcommittee of the Committee

on Commerce, and they examined it very carefully and

found it to be entirely correct and in accord with the

statutes now in existence, only scattered, as I said

before, from the beginning of the statutes down

through to the end .. .’’ 32 Cong. Rec. 2296 (1899).

When one of his colleagues asked Senator Frye ‘‘whether

there is any change made in the existing law by the amend-

ments?’’, Senator Frye assured his colleagues that no

changes were made, and said: ‘‘It is a compilation.’’ 32

Cong. Rec. 2296 (1899).

10

In passing this Act, Congress could only have intended to

exercise those powers it deemed itself to possess. In inter.

preting §6 of the 1894 Act (which later became the first

clause of what is now Section 13) the Attorney General

of the United States stated unequivocally that the power

of Congress was limited to the protection of navigation,

In this opinion, 21 Opinions of the Attorney General 305,

the Attorney General was asked by the Secretary of War

whether the War Department was required to act on a

request for permission to dump mine tailings into a nayi-

gable water when, in the Secretary’s opinion, such dumping

would not affect navigation but could adversely affect fish,

wildlife, and scenery. The Attorney General responded

that it was the duty of the Secretary of War to act upon

the permit, and when in his opinion navigation would not

be adversely affected, the permit was to be granted re.

gardless of other effects, since the latter were not within

the power of the Secretary to consider.

An examination of the legislative history and back.

ground of the Rivers and Harbors Act of 1899 compels the

conclusion that it was limited strictly to the protection

of navigation, the works of navigation, and navigable ca-

pacity. As stated in Guthrie v. Alabama By-Products (Co.,

328 F. Supp. 1140, 1145 (N. D. Ala. 1971), aff’d. 456 F. 2d

1294 (5th Cir. 1972), cert. den., 41 U.S. L.W. 3442 (Feb. 20,

1973), a civil action by private parties seeking damages

and injunctive relief under the 1899 Act for alleged water

pollution :

‘‘This court concludes that the purposes and extent

of the Rivers and Harbors Act was to assist the fed-

eral government in insuring that our navigable water-

ways remain free of obstructions and to protect the

special interest in freedom from such obstructions of

those who use the nation’s waterways for purposes

of navigation.’”

2. In Guthrie the plaintiffs-appellants in the courts below filed

& petition in this Court for a writ of certiorari (No. 71-1672).

Responding to the Court’s request to express the Government's

lr cg gr ke ee eal

“ E

11

In support of its contention that Section 13 was in-

tended to deal with pollution as well as navigation the

Government in reply may allude to statements made by

one of the compilers of the 1899 Act, Judge G. W. Koonce.

(Lecture by Judge G. W. Koonce, O. C. E., before the

Company Officers Class of the Engineer School, Fort

Humphreys, Virginia, April 23, 1926, as reported in ‘‘ Water

Pollution Control Legislation—1971 (Oversight of Exist-

ing Programs),’’ Hearings before the H. Comm. on Pub.

Works, 92d Cong., 1st Sess., 284 (hereinafter cited as ‘‘the

Oversight Hearings’’.) This amicus has no disagreement

with Judge Koonce’s assertion that the Government need

not stay its hand until actual injury to navigation has

occurred. It is potential as well as past injury to or inter-

ference with the navigational interest that is proscribed.

But that is a far cry from the present contention that dis-

charges of industrial process and cooling water having no

conceivable adverse effect upon navigable capacity were

intended to be covered by the Act. Judge Koonce did not

suggest that he considered the thousands of such dis-

charges, then going on continuously without any permits,

were in violation of the Act.

B. The Express Language of Section 13 and Its Long

History of Administration by the Executive Depart-

ment Demonstrate That It Is a Navigation Statute.

A careful reading of the entire text of Section 13 makes

it apparent that all portions of it are directly concerned

with navigation, as distinguished from pollution control.

The first portion of the section deals with material ‘‘other

than that flowing from streets and sewers and passing

therefrom in a liquid state’’ discharged directly into any

views about the case, it is interesting to note that the Department

of Justice filed a brief earlier this year recommending denial of

y writ. The petition was later denied by the Court on February

, 1973.

, &

12

navigable water or into any tributary from whence it shal]

float or be washed into such navigable waters. This clause:

clearly refers to that type of material which may haye

an effect on navigation. The second portion which deals

with indirect discharges concludes with the words ‘‘ where.

by navigation shall or may be impeded or obst ”,

The third portion excepts improvements in navigation from

the operation of the section. In the fourth: portion, the

Corps of Engineers is given authority to grant permits for

dumping but only when the Chief of Engineers finds that

‘‘anchorage and navigation will not be injured thereby”,

The only criterion to be applied to the granting of permits

for discharges is that the discharge is not to interfere with

‘‘anchorage and navigation.’? The purpose, scope, and

structure of this statute are geared to the protection of

navigation and not to the problem of pollution.*

Throughout its history up to the issuance of Executive

Order 11574 by the President directing the establistiment

of the ‘‘Refuse Act Permit Program’’ in December of

1970, Section 13 was not applied by the executive branch

to discharges of the type here involved, i.e., industrial

process water discharges resulting from the use of water

and consequent chemical and other changes effected by

that use. The Government concedes that only four permits

were ever issued for such discharges, and three of those

were a part of the settlement of the litigation in United

States v. Republic Steel Corporation, 362 U. S. 482 (1960).

3. The ‘‘semi-colon argument,’’ namely, that direct —

prohibited are not limited to those affecting navigation

the words ‘‘whereby navigation shall or may be impeded or ob-

structed’’ appear following the references to indirect discharges,

would require treatment of the first portion of the section as

though it were a separate section, rather hon he of four portions

of a whole. Moreover, even Professor Rodgers, a leading spokes-

man for judicial expansion of the section and frequently referred

to in the Government’s Brief, is candid enough to admit that such

a distinction is ‘‘scientifically indefensible.’’ Rodgers, Industrial

Water Pollution and the Refuse Act: A Second Chance for Water

Quality, 119 U. Pa. L. Rev. 761, 779 (1971).

13

(Government Brief, page 28, footnote 30) It is signifi-

cant that these permits deal primarily with the allocation

of costs of dredging flue dust from a river among the

three defendants and the Government, because of their

impairment of navigation, and do not purport to prohibit

such discharges.

Indeed, the Government admits that the Corps of Engi-

neers in its published regulations and administration of

Section 13 treated it as a navigation statute for nearly 70

years. (Government Brief, pp. 11, 29) When the regula-

tions were amended in 1968, they again made clear that

the administrative interpretation of the Act was that it

did not apply to the discharge of industrial process and

cooling water. The new regulations noted that while Sec-

‘tion 18 authorizes the Secretary of the Army to issue

permits for discharges to navigable waters, and that it

had been so used from time to time, ‘‘it is considered pref-

erable to act under Section 4 of the Rivers and Harbors

Act of 1905 (33 Stat. 1147, 33 U. S. C. § 419).’’ (33 C. F. RB.

§ 209.200(c)(2)) Thus the 1899 Act was interpreted to

provide for the establishment of dumping grounds for solid

wastes, making no mention of discharges of industrial

process water which was obviously not covered by the

“dumping ground’’ provision.

It was only after the issuance on December 23, 1970 of

Executive Order 11574 (35 F. R. 19627), directing the

establishment of the ‘‘Refuse Act Permit Program’’, with

out any change whatsoever in the statute itself by Con-

gness, that the Corps dutifully discovered that Section 13

applies to industrial process and cooling water. Robert E.

Jordan, IIT, General Counsel of the Army and Special

Assistant to the Secretary of the Army for Civil Func-

tions, in a statement before the Conservation and Natural

Resources Subcommittee on Government Operations on

September 17, 1970 (1 Environment Reporter, Current

Developments, 567) said:

14

_ “Earlier this year, in testimony before the Subcom

mittee on Energy, Natural Resources and Environ.

ment of the Senate Commerce Committee, I announead

a policy of the Department of the Army to

33 U. 8. C. 407—the so-called Refuse Act—against

‘those discharging into navigable waters, by

permits for such activity. I noted then that De-

partment of the Army’s current permit program was

an implementation of Section 10 of the Rivers and

Harbors Act of 1899 (33 U. S. C. 403) and that, his.

torically, we have not had a formal permit program

implementing Section 13 of the 1899 Act.’’ (Emphasis

added.)

Further corroboration is provided by the statement of

Brig. Gen. Richard H. Groves, Deputy Director of Civil

Works, Office of the Chief of Engineers, Department of

the Army, on Thursday, June 3, 1971, in the Oversight

Hearings at 263-264. He stated:

‘“*‘The Refuse Act contained provisions allowing the

issuance of permits for the discharge or deposit of

refuse matter under conditions prescribed by the See-

retary of the Army. This particular permit authority

had never been used, since other sections of the 1899

Act provided adequate authority for controlling activi-

ties which might adversely affect navigation and the

navigable capacity of our waterways.’’ (Emphasis

added.)

In other words, prior to December of 1970 there had never

been a program applicable to the discharges which are

the subject of the appeal now before the Court.

The foregoing interpretation, which is consistent with

the complete absence of a permit program for the dis-

charge of process water from industrial outfalls prior and

subsequent to the Republic Steel case, clearly establishes

that the officials charged with the interpretation of the

section did' not believe’ that it applied to the discharges

which are the subject of this prosecution.

15

It is established that regulations have the force of law

(Belden v. Chase, 150 U. S. 674, 698 (1893) ; Shell Petro-

leum Co. v. Peschken, 290 F. 2d 685 (3rd Cir. 1961)) and

that courts should give great weight to long-standing and

consistent formal administrative interpretation by the

agency charged with administering legislation (Udall v.

Tallman, 380 U. S. 1, 15 (1965)). Therefore, the adminis-

trative interpretation of Section 13 of the 1899 Act, which

was never challenged or corrected by Congress, should be

considered determinative of its true meaning. It estab-

lishes that Section 13 does not apply to discharges of the

Respondent involved in this appeal.

Indeed, the fact that there had never been a permit pro-

gram, formal or otherwise, administered by the Corps of

Engineers or the Secretary of the Army seems to have

been known to everyone but the Department of Justice.

as observed in PICCO’s brief opposing the petition for a

writ of certiorari. Attempting to explain away Mr. Ruckel-

shaus’ admission that there was no permit program prior

to 1971 (see pages 3 and 4 of PICCO’s brief in opposi-

tion to the petition), as being attributable to unfamiliarity

with past practice displays a surprising lack of candor on

the part of the Government.‘ The disingenuous suggestion

that there had been some kind of informal regulatory

permit program during the 70 years following passage of

the 1899 Act reappears in the Government’s Brief on the

merits. (See p. 10)

The inference is that the Corps of Engineers and the

Department of the Army and, in later years, the Environ-

mental Protection Agency, were misinformed in concluding

that Section 13 was intended to apply only to discharges

4. Mr. Ruckelshaus has distinguished company if he was unin-

formed on this matter. John R. Quarles, Jr., General Counsel of

the EPA, on June 2, 1971, explained why there was no such pro-

gram, saying: ‘‘The Refuse Act was enacted in 1899, and was

never regarded as applying to water quality discharges until quite

recently.’’ (Oversight Hearings, 208)

16

tending to affect navigation, and, further, that water users

should have known of this error and requested permits

from the Corps and the Secretary of the Army. In fair.

ness to those officials it should be pointed out that no other

agency in the executive branch of the federal gov

including the Department of Justice itself, appears to have

taken any steps to prosecute the thousands of water users

who have been violating federal criminal law throughout

the 20th century, if the 1899 Act is a pollution contro] act,

as the Department of Justice now contends.

©. The Judicial Construction of Section 13 Confirms This

Administrative Interpretation.

1. Decisions of This Court Do Not Support the Government's

Present Contention.

The attempt to expand Section 13 into a pollution con-

trol statute must rest upon two cases decided by this Court,

United States v. Republic Steel Corp., 362 U. S. 482 (1960)

and United States v. Standard Oil Co., 384 U. S. 224 (1966).

Those cases neither hold, nor, when fairly read, support

the argument that all industrial process and cooling water

discharges (described as ‘‘industrial waste’’ in the Govern-

ment’s Brief) are unlawful, absent a prior discharge per-

mit. It is a technological impossibility to utilize water for

any purpose and return it with precisely the same levels

of chemical and other constituents and at precisely the

same temperature as the receiving waters into which the

discharge flows.®

5. As the National Water Commission has observed in the Re-

view Draft of its Report to Congress: ‘‘The danger of a no

discharge policy lies not merely in its conceptual unsoundness, but

in its potential for doing long-term harm to the pollution control

effort. Like other oversimplified solutions to complex social

problems, the no discharge policy holds out a promise of clean water

st cannot redeem.’’ Review Draft of Report of the National Water

Commission at p. 4-6 (November 1972.) (Emphasis added.)

<i

7.

It must also be recognized that both Republic Steel and

Standard Ow dealt with discharges made prior to the

enactment of the Water Quality Act of 1965, in which Con-

gress established a regulatory program dealing with water

pollution control. (See Point Il, infra) Both cases arose

before there had been any suggestion that the 1899 Act

might be considered a pollution control measure in a mod-

ern context. Furthermore, language in Standard Oil seized

upon by the Government in this appeal was not known to

Congress when the 1965 Act was adopted, because the de-

cision came in the following year.

Republic Steel was a civil action based upon Section 10

of the 1899 Act (33 U. S. C. § 403) which prohibits the

creation of obstructions to navigation. Section 13 was

involved only to the extent that the defendants contended

that even if it were assumed that the suspended solids

being discharged constituted an obstruction to navigation,

such discharges were legal under Section 13, which ex-

cepts discharges ‘‘flowing from streets and sewers and

passing therefrom in a liquid state.’’ The Court held

that the discharges were not within the exception, and in

doing so relied on the administrative interpretation re-

quiring removal of solids from a river which, through

build-up on the bottom, had obstructed navigation. 362

U. S. 482, 490 (1960). The Court did not consider in that

decision whether discharges which did not create an actual

obstruction to the navigable capacity of a river were il-

legal under either Section 10 or Section 13 of the 1899 Act.

The parties in Republic Steel, the Government included,

thought they were dealing with a statute designed to pro-

tect against potential injury to navigable capacity, not

a pollution control measure. At pages 16 and 17 of its

petition for a writ of certiorari in Republic Steel the

Government stated:

‘We are not dealing here with a statute aimed at the

prevention of ordimary pollution, but with prohibi-

18

tions against interference with navigation and the

policy of Congress, unchanged since 1899, of com.

pelling riparian owners and users of navigable streams

to bear the burden of eliminating any injury to navi.

gable capacity their use may produce.’ (Emphasis

added.)

At page 34 of its Appellant’s Brief the Government in.

formed the Court:

‘‘The problem of pollution of streams, navigable or

non-navigable, has no direct bearing on the present

case, which is addressed to the obstruction of navi

gable capacity.’’ (Emphasis added.)

Further, Standard Oil held only that commercially valn-

able gasoline could constitute ‘‘refuse matter’’ when intro-

duced into a navigable water from whence it could not be

recovered. The matter was presented on a stipulation of

facts which established that there had been a single acci-

dental discharge of commercially valuable gasoline into

the St. Johns River because a shut-off valve at dockside

had been left open and that this was the only discharge

‘involved. The case was briefed and argued before the

Court on the sole issue of whether the commercially valu-

able nature of the gasoline made it something other than

refuse matter. On the record before the Court, there was

no need to consider whether all industrial process and

cooling waters flowing into the nation’s waterways are

prohibited as being ‘‘refuse matter’’ intended to be pro-

scribed by Congress in 1899 and it was not so considered.

The Court examined the legislative history of the Act and

its statutory antecedents which established that the com-

mercial value of the material discharged had never been

taken into account in determining what was to be banned,

but, rather, that the substances enumerated in the statute

appeared all to be of such nature as would cause an actual

obstruction or danger to navigation.

Transformation of Section 13 into a pollution control

statute must be based entirely upon usage of the term

—_ eeimnigarenreeeseereeeescoreep mmr nent Rite

19

“pollution”? by the majority in Standard Ou, principally

the assertion that: ‘‘The word ‘refuse’ includes all for-

eign substances and pollutants apart from those ‘flowing

from streets and sewers and passing therefrom in a liquid

state’.’’ 384 U. S. 224, 230. (Emphasis added.) But the

question of whether Section 13 applies to discharges having

no effect upon navigation had not been put in issue. There-

fore, even if the emphasized words were construed as the

Government contends, it is undeniably clear that they are

dicta. Moreover, such an expansive interpretation over-

looks other assertions in the majority opinion that the

presence of gasoline in navigable waters is a menace to

navigation. 384 U. S. at 226.

2. Decisions of the Courts Below Are Inconclusive on the

Navigation Question.

Two cases in the Second Circuit exemplify the confusion

on the issue. United States v. Ballard Oil Co. of Hartford,

195 F. 2d 369 (2nd Cir. 1952) is cited by the Government

in support of the contention that the criminal sanction of

Section 13 is not limited to discharges that might impede

or obstruct navigation. (Government Brief, p. 16) Ballard

Oil held that the negligent pumping of 6700 barrels of

heavy fuel oil from a tanker into a river violated Sec-

tion 13. No one would contend that such a discharge, de-

scribed as ‘‘a black tarry looking mass’’ being ‘‘one inch

thick on top of the water,’’ would not impede or adversely

affect navigation. Moreover, neither the ultimate purpose of

the section nor the effect of the discharge upon navigation

was in issue. The Court merely said the district court’s

finding that the discharge affected navigation did not compel

the conclusion that the defendant had been convicted of

violating the second clause of Section 13 instead, of the

first. On the other hand, in the later case of Nicroli v. Den

Norske Afrika-Og Australielinie, etc., 332 F. 2d 651 (2nd

Cir. 1964), the defendant argued that Section 13, and a

20

section of an Act of 1888 concerning New York harbor

now in 33 U. S. C. § 441, prevented a shipowner from

hosing spilled sugar off the deck of a ship into the harbor,

After examining the statutes the Second Circuit concluded

at page 655:

‘*Though the statutory language is broad, the purpose

of these statutes is to prevent the discharge of matter

which will clog or obstruct the harbor or other navi

gable waters.’’ (Emphasis added.)

The Government has frequently cited United States y,

Esso Standard Oil Co. of Puerto Rico, 375 F. 2d 621 (3rd

Cir. 1967) in support of its argument. That case also

involved a discharge of oil, this time on the shore from

which it flowed into the ocean by gravity. The only issue

was whether the point of discharge was too remote from

the water to support a conviction. The Court’s recits.

tion of the agreement of the Government and the defend.

ant, incorporated in a stipulation of the parties to expedite

the trial, that the discharge did not impede navigation

cannot be treated as an adjudication of that question.

“Only in La Merced, 84 F. 2d 444 (9th Cir. 1936) could it

be said that a Court of Appeals has held that the effect

of a discharge upon navigation is irrelevant. However,

La Merced was an admiralty action against a vessel from

which oil was ‘‘thrown, discharged and deposited’’ in a

lake while at anchor (84 F. 2d 444), as distinguished from

process or drainage water discharges. Moreover, the

court did not consider the legislative history of the 1899

Act. Admittedly, commencing with United States v. In

terlake Steel Corporation, 297 F. Supp. 912 (N. D. I.

1969) a number of district courts, without full considera-

tion of either the legislative history or purpose of Section

13, or the absence of a viable permit program, and with-

out manifesting full understanding of the purpose of the

Federal Water Pollution Control Act, or the impossibility

21

of complying with the Government’s distortion of Section

13, have held in favor of the Government’s position.*

Arrayed against these cases, however, are numerous

decisions involving civil actions for alleged violations of

Section 13 in which Courts of Appeals and district courts

have held that the purpose of Section 13 was to protect

navigation. United States v. Bigan, 274 F. 2d 729 (3rd

Cir. 1960); Guthrie v. Alabama By-Products Co., 328 F.

Supp. 1140 (N. D. Ala. 1971), aff’d. 456 F. 2d 1294 (5th

Cir. 1972), cert. demed, 41 U. S. L. W. 3442 (Feb. 20, 1973) ;

Chambers-Liberty Counties Navigation District v. Parker

Brothers & Co., 263 F. Supp. 602, 607 (S. D. Tex. 1967).

Il.

SECTION 13 OF THE 1899 ACT AND THE FEDERAL WATER

POLLUTION CONTROL ACT MUST BE CONSTRUED TO-

GETHER 80 AS TO GIVE THE FULLEST POSSIBLE EF-

FECT TO THE CENTRAL PURPOSES OF BOTH.

There are some who contend that if Section 13 of the

1899 Act does not apply to industrial process and cooling

water, those discharges are, in reality, free of control.

This is demonstrably not true. In some instances it stems

from misunderstanding the full thrust and reach of the

Federal Water Pollution Control Act (33 U. S. C. §§ 1151,

et seq., hereinafter ‘‘the Control Act’’) and especially

6. The recent case of United States v. Granite State Packing

Co., 470 F. 2d 303 (1st Cir. 1972), involved animal wastes that

could adversely affect navigation and the defense rejected by

the Court was that the discharge went into a municipal sewer

system, not directly into the river. This was a fact issue. How-

ever, the Court went on to brusit. aside the defendant’s claim

that if there were no administrative procedures whereby it could

have obtained a permit, the statute is unconstitutional. The de-

cision contains nothing to indicate that the court considered the

consequences of treating Section 13 as an absolute prohibition.

We have only the Court’s ipse dixit that the statute ‘‘forbids

certain conduct, with exceptions’’ (whatever they are), and thus

the decision has little precedential value.

§ 1160 together with other changes made by the Water

Quality Act of 1965, described imfra. Contrary to the

implication in the Government’s Brief at pages 10 and %

the Control Act does not provide for a State-controlled

program with little or no federal control over the formula.

tion or enforcement features. The 1965 amendments to

the Control Act make this implication totally unwarranted,

Section 10 of the Control Act (33 U. S. C. § 1160), as

rewritten in the Water Quality Act of 1965, created a

comprehensive program for the control of water pollo.

tion in the nation’s waterways. In general, it provides

for establishing water quality standards and implementa.

tion plans for the nation’s interstate waters. The States,

pursuant to the specific directions of Congress, are given

the first chance to formulate these standards and plans

for implementation (§ 1160(c)(1)), which are then sub.

mitted to the Federal Environmental Protection Ageney

for its approval. If the Administrator of EPA approves

them, they become the federal standards for those water.

ways. If he does not, a Hearing Board is appointed to

set the standards. If industrial and other water users

subject to the standards and implementation plans do not

abide by them, they are subject to enforcement measures,

including suits to be brought on behalf of the United

States by the Attorney General in the manner and cir-

cumstances provided by § 1160(c)(5) and § 1160(g)(1)

and (2) of Title 33 U.S.C. A brief history of the Control

Act will explain much of the confusion that has arisen

concerning its paramount place in water quality control

and will make clear the necessity for accommodation with

the 1899 Act.’

7. The suggestion at page 20 of the Government’s Brief that

the federal government has no court enforcement power under the

Control Act except as to ‘‘interstate waters’’ is misleading. Pollu-

tion of all navigable waters is subject to abatement under the con-

ference procedures provided in §§ 1160(d), (e) and (f). If the

federdl authority is dissatisfied with the abatement program, the

A. History of the Federal Water Pollution Control Act.

The original Control Act (62 Stat. 1155-1161) was en-

acted in 1948. It was désigned primarily to encourage

state and local water pollution control, provide for federal

cooperation and focus public attention on particular water

pollution problems through a process of conferences, but

it was not a comprehensive water quality control program.

The Act was amended in 1956 so as to expand greatly

the power of the federal government over the pollution of

interstate waters, but it still did not assume the all-encom-

passing scope of the present statute. Section 8 of the

1956 Act (now Title 33 U. S. C. § 1160) provided for the

convening of conferences to determine the existence of

pollution (§ 1160(d)), notice to state agencies to take the

necessary action to abate the pollution (§ 1160(e)), public

hearings if the state agency fails to take adequate action

to abate the pollution (§ 1160(f)), and, finally, if adequate

action has not been taken within the time allowed follow-

ing the hearing, court action at the request of the Secre-

tary of Health, Education and Welfare,® in the case of

pollution endangering the health or welfare of any person,

the sole qualification being that, if the only persons al-

leged to be endangered and all the alleged contributors

to the pollution are located in one state, the Governor of

that state must consent to filing the suit (§ 1160(g)).

In 1961 the Act was amended to cover navigable as well

Attorney General is authorized to bring a suit on behalf of the

United States to secure abatement pursuant to §1160(g). The

reference to ‘‘interstate waters’’ applies only to alleged viola-

tion of water quality standards established under § 1160(c).

8. Functions under the Control Act were transferred to the

Secretary of the Interior, pursuant to Reorganization Plan No. 2

of 1966. (31 F. R. 6857) Later all functions vested in the Secre-

tary or Department of the Interior by the Control Act were trans-

ferred to the Administrator of the Environmental Protection

Agency by Reorganization Plan No. 3 of 1970. (35 F. R. 15623)

uA

as interstate waters, but the amendments did not mate.

rially change the conference, hearing and notice pro

cedures which were provided for in the 1956 amendments,

In 1965, however, the Control Act was transformed from

a cumbersome program, geared in substantial degree to

state initiation, into a comprehensive federal program of

regulation and enforcement, The Water Quality Act of

1965, Pub. L. 89-234, 79 Stat. 903, changed the first section

of the Control Act (now § 1151(a) of Title 33) to provide:

“The purpose of this act is to enhance the quality and

value of our water resources and to establish a ug.

tional policy for the prevention, control, and abate.

ment of water pollution.’’ (Emphasis added.)

More significantly, the 1965 amendments provided for

adoption of federal water quality standards and imple.

mentation plans for all interstate waters within the United

States. Title 33 U. S. C. § 1160(c)(1) gave initially to the

States the opportunity to formulate the standards for the

waters within their jurisdictions but stated that, ‘‘If the

Secretary determines that such State criteria and plan are

consistent with paragraph (3) of this subsection, such

State criteria and plan shall thereafter be the water quality

standards applicable to such interstate water or portions

thereof.’’ (Emphasis added.) If the States failed to

formulate standards meeting the federal requirements, the

Secretary of Health, Education and Welfare (now the

Administrator of the Environmental Protection Agency,

see footnote 8, supra) was empowered to promulgate such

regulations. (§ 1160(c)(2)) The implementation plans

adopted pursuant to the 1965 Act consisted of treatment

or discharge guidelines, standards and timetables, They

were subject to federal enforcement undér the Act. (§ 1160

(c) (5))

Thus, in 1965 the Control Act was transformed from a

program of grants and encouragement of state efforts to

25

control water pollution, as it had originally been drawn

in 1948, into a detailed and comprehensive system of

federal regulation. There was no need at that time for -

Congress expressly to negate any parallel or conflicting

jurisdiction of the Secretary of the Army to regulate

pollution under Section 13, because neither the Secretary

nor any other federal agency at the time thought that

permits were required except under Section 10 of the 1899

Act relating to possible obstructions to navigation. (See

Statement of Robert E. Jordan, General Counsel of the

Army, supra, at page 14.)

If any additional evidence is needed that Congress in 1965

and thereafter intended to regulate discharges having an

effect upon water quality in the Control Act, it can be found

in the highly - significant addition to the water quality

standard-setting provision in § 1160(c)(3) by the Water

Quality Improvement Act of 1970 (Pub. L. 91-224, 84 Stat.

aes

. “Tn establishing such standards the Secretary [of the

Interior, later changed to the Administrator of the En-

vironmental Protection Agency], the hearing board,

or the appropriate State authority shall take into con-

sideration their use and ‘value for navigation.’’ See

33 U. S. C. § 1160(c)(3) and Historical Note following

33 U.S. C. A. § 1160.

The addition of this sentence shows that Congress intended

the Secretary of the Interior (later changed to the Admin-

istrator of the EPA) to have control over discharges affect-

ing water quality but that he should protect navigation to

the extent that the discharges might affect it. This sentence

is totally inconsistent with the Government’s contention that

the Secretary of the Army has complete control of dis-

charges of process, cooling and drainage water that are of

concern because of their pollutional effect, irrespective of

whether those discharges affect navigation.

26

B. If the Control Act and Section 13 Are Not Construed

in Pari Materia, They Are Irreconcilable.

The policy behind the federal water pollution contro}

program incorporated in the Control Act is to provide a

mechanism to consider the varying and often conflicting

uses of any given body of water or stretch of a river, to

establish priorities for such uses, to fix specific limits on

the chemical and other constituents permitted so as to pro-

tect those uses, and to force compliance with the specific

standards by suits for abatement brought by the Attorney

General. (33 U. S. C. §§ 1160(c) through (g)) The water

quality standards and implementation plans established

under the Control Act are meaningless if, regardless of how

precise and stringent they may be, any United States At.

torney has the power to prosecute every water user whose

discharge is not identical in all respects with the receiving

water.’

Even if it were assumed arguendo that Section 13 of the

1899 Act is not limited in its application to discharges di-

rectly or physically impeding navigation, it must be ad-

mitted that the central purpose of the 1899 Act was to pro-

tect the navigational interests of the United States. Cer-

tainly it is manifest that the central purpose of the Control

Act was to establish a program for the control and abate

9. As noted by the author frequently called upon by the Govern-

ment in its Brief, this construction of Section 13 is a “‘no dis

charge mandate’’ and gives the federal prosecutor ‘“‘life-and-

death leverage’’ over every water user in the nation. Rodgers,

supra, at page 816.

Another spokesman for such an absolute standard, which is to

be ‘‘ameliorated through practical application’’, urges ‘‘ Reliance

on the prosecutor to be sensible . ...’’ and at the same time con

cedes that ‘‘It is unlikely that ‘zero’ discharge can ever be

achieved.’? Sandler, The Refuse Act of 1899: Key to Clean

Water, 58 A. B. A. J. 468, 470-471 (1972). Given this absolute

interpretation it is not surprising that the Government can boast

about a high conviction rate in footnote 16 on page 18 of its Brief.

27

ment of water pollution.’ The conclusion must be that the

central purposes of the two Acts are totally irreconcilable

if the Government’s interpretation of the 1899 Act as a

complete or ‘‘general’’ prohibition is accepted.

This Court held in The Boys Markets, Inc. v. Retail

Clerks’ Union Local 770, 398 U. S. 235 (1970) that, where

two statutes enacted at greatly disparate times appear to

conflict, it becomes the task of the courts to accommodate

and reconcile the older statute with the more recent one.

The Boys Markets case involved a suit brought under Sec-

tion 301 of the Labor Management Relations Act, Title 39

U.S. C. § 185(a), and the Court upheld an injunction against

a strike in violation of a collective bargaining agreement

containing a compulsory arbitration clause, notwithstanding

the literal terms of the Norris-LaGuardia Act, Title 29

U.S. C. § 104, as well as the Court’s previous decision in

Sinclair Refinery Co. v. Atkinson, 370 U. S. 195 (1962). In

The Boys Markets, 398 U. S. 235 at pages 250, 251, the

Court stated :

“The literal terms of § 4 of the Norris-LaGuardia Act

must be accommodated to the subsequently enacted

provisions of § 301(a) of the Labor-Management Re-

lations Act and the purposes of arbitration. Statutory

interpretation requires more than concentration upon

isolated words; rather, consideration must-be given to

the total corpus of pertinent law and the policies which

inspired ostensibly inconsistent provisions. See Rich-

ards v. United States, 369 U. S. 1, 11 (1962); Mastro

Plastics Corp. v. NLRB, 350 U. S. 270, 285 (1956) ;

United States v. Hutcheson, 312 U. S. 219, 235 (1941).

* “ . . * *

10. The Department of Justice has tacitly conceded this. The

Department’s’ Guidelines for Litigation Under the Refuse Act,

issued to United States Attorneys in June, 1970, in speaking

of continuing discharges resulting from the ordinary operations

of a plant, stated that ‘‘it is precisely this type of discharge that

the Congress created the Federal Water Quality Administration

to decrease or eliminate.’’ 1 Environment Reporter, Current

Developments, 288 (1970).

28

‘‘As labor organizations grew in strength and de.

veloped toward maturity, congressional emphasis

shifted from protection of the nascent labor movement

to the encouragement of collective bargaining and to

administrative techniques for the peaceful resolution

of industrial disputes. This shift in emphasis was ao.

complished, however, without extensive revision of

many of the older enactments, including the anti-

injunction section of the Norris-LaGuardia Act. Thug,

it became the task of the courts to accommodate, to

reconcile the older statutes with the more recent ones,”

(Emphasis added.)

The Government’s contention that the 1899 Act, in effect,

supersedes the later Control Act rests in part upon a say.

ings provision that has been in the Control Act since its

original enactment in 1948, 33 U. S. C. § 1174. (Govern.

ment’s Brief, page 20) The section provides:

‘‘This Chapter [the Control Act] shall not be construed

as (1) superseding or limiting the functions, under any

other law, of the Surgeon General or of the Public

A Health Service, or of any other officer or agency of the

United States, relating to water pollution, or (2) affect-

ing or impairing the provisions of sections 407, 408,

409 and 411 to 413 of this title, or (3) affecting or

impairing the provisions of any treaty of the United

States.’’ (Emphasis added.)

The separation of the section into three separate clauses,

the first referring to water pollution laws, the second to

provisions in the 1899 Act, and the third to treaties, is

added confirmation that the Congress did not consider the

1899 Act as ‘‘relating to water pollution.’’

However, if this, too, is ignored the Court is confronted

with a classic example for the application of the doctrine of

accommodation, since there are two statutes relating to the

same subject matter that contain conflicting purposes and

provisions. Accommodation does not suggest a repeal of

one statute by the other, but a reconciliation of both so as

29

to deprive neither of meaning while preserving the essen-

tial purposes of both. As applied to this case, accommo-

dation does not involve in the slightest a diminution of the

statutory purpose of Section 13 or its historic application

because, until three years ago, it had never been applied in

a criminal prosecution for the discharge of industrial

process water.

The proper role of accommodation is described by Jus-

tice Brennan in his dissenting opinion in Sinclair Refinery

('o. v. Atkinson, 370 U. S. 195, 216 (1962) (adopted by the

Court as the correct statement of the law in The Boys

Markets and overruling the Sinclair Refinery Co. case)

where he stated:

“Of course § 301 of the Taft-Hartley Act did not, for

purposes of actions brought under it, ‘repeal’ § 4 of

the Norris-LaGuardia Act. But the two provisions do

coexist, and it is clear beyond dispute that they apply

to the case before us in apparently conflicting senses.

Our duty therefore, is to give the fullest possible effect

to the central purposes of both.’’ (Emphasis added.)

Reliance by the Court of Appeals in PICCO upon § 1174

of the Control Act as a basis for declining to define

“refuse’’? in terms of water quality standards established

under that Act suggests a misunderstanding of both the his-

tory and language of § 1174, for the reasons stated above.

While the court refused, erroneously we submit, to adopt

the defendant’s version of accommodation, it did, as it must,

recognize that in neither Republic Steel nor Standard Ow

did this Court ‘‘find that Congress intended to prohibit all

such discharges.’’ 461 F’. 2d 468, 473. The Court of Appeals

in PICCO was forced to conclude at page 473:

“There would appear to be something fundamentally

inconsistent between the program of developing and

enforcing water quality standards under the Water

Quality Act and section 407 of the Rivers and Harbors

Act, if the effect of the latter is to prohibit all dis-

charges of industrial waste into navigable waters.’’

30

Confronted with the otherwise irreconcilable statutes, the

Court was compelled to rely upon the permit program ¢op.

templated by Section 13 to make the two statutes compat.

ible. The crucial factor was the rejection of the unfounded

notion that Section 13 provides an absolute prohibition

against any industrial discharge—the so-called ‘‘no dis.

charge mandate’’ as it is described by one of the Govern.

ment’s authorities. Rodgers, supra, at page 816.

In sum, PICCO stands for the proposition that Section 13

and the Control Act must be accommodated and that Con.

gress contemplated a regulatory program supported by a

viable permit system under Section 13—because the only

alternative would be to find that virtually all of the nation’s

water users are misdemeanants operating only because the

Department of Justice has not yet chosen to prosecute them,

Amicus submits that applying the 1899 Act to those dis-

charges affecting navigation which have traditionally been

regulated under that Act, and treating the Control Act as

governing process, cooling and drainage water discharges

which affect water quality is the only way, in the words of

Justice Brennan in Sinclair Refinery Co., supra, ‘‘to give

the fullest possible effect to the central purposes of both.’™

11. The Temporary Emergency Court of Appeals recently

reconciled an apparent conflict between the Norris-LaGuardia

Act (29 U. S. C. § 101, et seg.) and the Economic Stabilization

Act of 1970 (12 U. S. C. § 1904 (note)) by holding that the

prohibition against the granting of injunctions contained in Norris-

LaGuardia must give way to the recently enacted Economic Stabili-

zation Act. McGuire Shaft and Tunnel Corp. v. Local Union No.

1791, United Mine Workers of America, ........ POR ct , 20 WH

Cases 1147 (T. E. C. A. Feb. 1, 1973). The Court stated:

‘In light of the importance of the Economic Stabilization

to economic welfare of the United States, the Norris-

LaGuardia Act must be interpreted to accommodate the over-

riding Congressional intent expressed in the Economic Stabili-

zation Act. Such accommodations have been made in the past

when the provisions of the Norris-LaGuardia Act conflicted

with other specific intentions of Congress.’’

31

0. Adoption of Point I of the Government’s Brief Would

Emasculate the Control Act, as Amended by Congress

in 1972.

Amicus recognizes that the Federal Water Pollution

Control Act Amendments of 1972, Pub. L. 92-500, 86 Stat.

816 (hereinafter ‘‘the 1972 Amendments’’), do not apply

to the industrial discharges challenged in this case. How-

ever, the Court’s decision may have a profound effect

upon the effectiveness of the comprehensive national pro-

gram so painstakenly devised by Congress in the 1972

Amendments.

Bunning throughout the Government’s Brief is the theme

of dissatisfaction with the Control Act, supported by fre-

quent references to several writers who have expressed

their impatience with the Congress in failing to enact legis-

lation to deal with the complex problems of environmental

controls for contemporary society in the fashion deemed

advisable by the writers. Indeed, the distorted interpre-

tation of the 1899 Act pressed upon the Court appears to

spring from this dissatisfaction or disagreement with the

Congress. That is the reason, we are told, why the Depart-

ment of Justice has turned to the 1899 Act as the ‘‘only

effective legislative bulwark’’ against ‘‘industrial assault.’’

Government Brief, p. 15.

The federal law of water pollution control was com-

pletely rewritten in the 1972 Amendments, establishing

one of the most detailed and comprehensive enactments

ever adopted by the Congress. In addition to providing

for extensive research programs and sharply increased

federal grants for construction of treatment facilities, the

1972 Amendments create the framework for a program

regulating all discharges into waterways by establishing

specific effluent limitations to be developed under the aegis

of the Environmental Protection Agency by means of a

national system of discharge permits,

32

An examination of the pertinent provisions of the 1979

Amendments demonstrates that the relationship between

Section 13 of the 1899 Act and the Control Act, as revised,

is consistent with the interpretation of Section 13 urged

here by amicus, Chamber of Commerce. The 1972 Amend.

ments reconcile the 1899 Act with the program designed

to maintain the integrity of the nation’s waters under the

Control Act so as to preserve the central purposes of both

laws.

In Section 502 of the 1972 Amendments ‘‘point source”

is defined to include any discernible and discrete convey.

ance by a pipe, ditch or other conduit from which pollutants

may be discharged (§ 502(14)), and ‘“pollution’’ is defined

as ‘‘man-induced alteration of the chemical, physical, bio.

logical, and radiological integrity of water.’’ (§ 502(19))

Section 301 provides that effluent limitations must be

established for point sources, and discharges not comply-

ing with those limitations shall be unlawful and subject to

severe civil and criminal sanctions.

Section 402 establishes a National Pollutant Discharge

Elimination System, to be implemented through a permit.

granting program to be set up by the Administrator of the

Environmental Protection Agency under guidelines pro-

vided in Section 402(a).

Without recognizing any validity in the Refuse Act

Permit Program, established in December, 1970 by Exect-

tive Order 11574 (35 F. R. 19627) without any Congres

sional authorization whatever, but seeking to utilize data

collected and work done by the Environmental Protection

Agency in attempting to implement that Program, Section

402(a) (4) validates the Section 13 permits already issued”

12. About 23,000 applications were submitted by water users

pursuant to Exceutive Order 11574 (3 Environment Reporter, Cur-

rent Developments, 795), but only 21 permits were issued. It is

worth noting that those administering the Permit Program did not

limit it to industrial discharges. Permits were issued to discharge

backwash water from swimming pools at the Air Force Academy

__ <r,

33

However, in Section 402(a)(5) Congress expressly pro-

hibits the issuance of any permits under the purported —

authority of Section 13 after the date of enactment of the ~

1972 Amendments.

Section 402(k) provides, inter alia, that, until Decem- .

ber 31, 1974, where pending permit applications have not

been acted upon, discharges shall not be a violation of

the standards to be established under Sections 301 and 402,

or a violation of Section 13. This is not an affirmation of

the validity of the Refuse Act Permit Program or the

attempted use of Section 13 as a pollution control measure.

It simply defers prosecutions under the Control Act for

a specified period of time to allow the immense adminis-

trative machinery to be set up and permit applications to be -

processed.

In the first section of the 1972 Amendments cen

has expressly vested in the Administrator of the Environ-

mental Protection Agency the complete authority and re-

sponsibility for administration of the enormously far

reaching water control program only a part of which is

touched upon above. (§$101(d)) The Secretary of the

Army’s historical role is retained in Sections 404 and 511.

Section 404 provides that the Secretary of the Army

may continue to issue permits for discharges of dredged

or fill material at specified disposal sites, and Section 511

preserves the authority of the Secretary of the Army to

maintain navigation, making it clear by reference to Sec-

tion 404 that the Secretary’s permit authority relates to

enforcement of the prohibition on obstructions to naviga-

tion under Section 10 of the 1899 Act (33 U. S. C. § 403).

If Section 13 provides a ‘‘no discharge mandate,’’ unless

a permit is first obtained, which is the first and principal

in Colorado and a Boy Scouts of America facility in Oklahoma.

Another permit went to a medical foundation in New Orleans to

discharge cooling water from air conditioners. (2 Environment

Reporter, Current Developments, 1487)

34

argument advanced in the Government’s Brief, and permits

under Section 13 cannot be granted by the Secretary of

the Army, the advocates of the absolute prohibition inter.

pretation of the 19th century act will have frustrated the

Congressional program incorporated in the 1972 Amend.

ments. The obvious and only commonsense conclusion jg

that in § 402(a)(5) Congress has once again manifested

its view that the 1899 Act is not intended to be a water

pollution control measure and does not apply to discharges

of process, cooling and drainage water that are clearly

regulated under the 1972 Control Act.

Til.

IF SECTION 13 AND THE CONTROL ACT ARE NOT ACCOM.

DATED, THEIR APPLICATION VIOLATES THE DUE

PROCESS OLAUSE.

If Section 13 is not construed in pari materia with the

Control Act, then the former constitutes a regulatory

scheme so vague and arbitrary as to be unconstitutional

for the reasons set forth in the third section of the deci-

sion of the Third Circuit in PICCO.

As viewed by the Government, Section 13 provides an

absolute prohibition of all discharges made without a

permit. On the other hand, discharges meeting standards

permitting specified levels of constituents are permitted

under the Control Act. The fault is not that of Congress

in enacting the statutes but that of those who assert that

they should be applied so as to produce this absurd result.

At page 27 of its Brief the Government appears to con-

tend that the Secretary of the Army is vested with this

untrammeled discretion, saying that ‘‘Congress has pre-

13. This theory of absolute power in the Secretary was adopted

by the trial court in PICCO. In his charge to the jury, the tril

judge said that ‘‘if the Secretary of the Army in his discreti

decided not to give anybody a permit, so be it.’’ (Emphasis added)

(Appendix, p. 211.)

35

gribed stricter controls over all discharges of refuse that

may, in the Secretary’s discretion, be excused from the

1999 proscription, so that foreign effluents having an im-

permissibly high waste content will no longer be deposited

into our nation’s navigable waters.’’ (Emphasis added.)

What does ‘‘impermissibly’’ mean? What standards are

to be applied for the guidance of both the regulating

authority and those being regulated in determining this

permissibility ?

It must be remembered that Section 13 is a criminal

statute. As stated by the Court in Jordan v. DeGeorge, 341

U.S. 223, 230 (1951), in upholding the immigration statute

requiring deportation for crimes of moral turpitude, ‘‘This

Court has repeatedly stated that criminal statutes which

fail to give notice that an act has been made criminal

before it is done are unconstitutional deprivations of due

process.”’ Baggett v. Bullitt, 377 U. S. 360, 366-67 (1964) ;

Cramp v. Board of Public Instruction, 368 U. S. 278 (1961).

If the 1899 Act is treated as a prohibition of all dis-

charges of industrial process and cooling water without a

permit when none was available, without reference to

their effect on navigation or any other public interest, it is

arbitrary, capricious and unconstitutional as applied. While

the decisions in Nebbia v. New York, 291 U. 8. 502, 525

(1934) and West Coast Hotel Co. v. Parrish, 300 U. S.

- 319 (1937) rejected the earlier substantive due process

arguments on which much social legislation was struck

down, they recognized the fundamental doctrine urged here.

The Court stated in Nebbia:

“‘And the guaranty of due process, as has often been

held, demands only that the law shall not be wnreason-

able, arbitrary or capricious and that the means se-

lected shall have a real and substantial relation to the

object sought to be attained.’’ (Emphasis added.)

It would make a mockery out of this simple but funda-

nental right if we were to accept the thesis of an Assistant

36

United States Attorney, Chief of the Environmental Py.

tection Unit in one of the federal districts, who advocates

‘Reliance on the prosecutor to be sensible.’’ Sandler,

supra at footnote 9. Hundreds of commercial and industria]

enterprises, in cooperation with the Environmental Py.

tection Agency which is charged with administration of

the massive program mandated under the 1972 Amend.

ments, are devising even more comprehensive and stringent

’ discharge standards than were provided under the prior

terms of the Control Act. Must all those who in good

faith and at enormous cost construct treatment facilities

meeting the effluent standards still operate only at the suf.

ferance of the federal prosecutors throughout the country!

Last year this Court struck down a vagrancy law for

the reasons, miter aka, that it encouraged ‘‘arbitrary and

erratic arrests and convictions and placed almost unfet-

tered discretion in the hands of the police. Papachristou v,

City of Jacksonville, 92 8. Ct. 839.(1972). In Papachristou,

the Court cited with approval the previous decision in

United States v. Reese, 92 U. S. 214 (1875), in which two

inspectors of a municipal election were indicted for viola-

tion of a penal statute regulating elections. The Court

noted in Reese:

“It would certainly be dangerous if the legislature

could set a net large enough to catch all possible of-

fenders, and leave it to the courts to step inside and

say who could be rightfully detained, and who should

be set at large. This would, to some extent, substitute

the judicial for the legislative department of the gov-

ernment. The courts enforce the legislative will when

ascertained, if within the constitutional grant of

power.’’ 92 U. S. 214, 221.

Further, the Court in Papachristou quoted with approval

the observations of President Roosevelt in vetoing a penal

vagrancy law for the District of Columbia: ;

37

‘‘ ‘Tt would hardly be a satisfactory answer to say that

the sound judgment and decisions of the police and

prosecuting officers must be trusted to invoke the law

only in proper cases. The law itself should be so

drawn as not to make it applicable to cases which obvi-

ously should not be comprised within its terms.’ H.

Doc. 392, 77th Cong., Ist Sess.’’ 92 S. Ct. 839 at 846,

n. 10.

Amicus submits that the same considerations of due

process and protection against ‘‘arbitrary and erratic

arrests and convictions’’ that apply to those charged with

vagrancy should also apply to the countless thousands of

citizens from whose premises water is discharged into the

nation’s streams and lakes.

— wii *

CONCLUSION.

The question confronting the Court in this appeal is not

that of whether Congress has provided a water pollution

control program satisfactory to the executive branch of

government. The real question here is whether a 19th

century criminal statute relating to navigation can be

‘transformed into an absolute ban on discharges into our

waterways by usurpation of the legislative function, to be

ameliorated solely, if at all, by the exercise of prosecutorial

discretion.

The fundamental issue underlying this controversy was

stated with great clarity by Mr. John R. Quarles, Jr., Gen-

eral Counsel of the Environmental Protection Agency, in

addressing an American Bar Association National Institute

afew days after Congress adopted, over Presidential veto,

the Federal Water Pollution Control Act Amendments of

1972, Mr. Quarles hailed the new law and concluded by

saying :

‘‘Governmental regulation is necessary in certain

areas of the life of our society. Pollution contro] is

one. When regulation is required, it should be effeo.

tive within its legal framework. This has not been trye

with regard to water pollution. Soon it will be. AU of

us im this field should look forward with gratification

and relief to the establishment—at long last—of am

effectwe Rule of Law.’’ (Emphasis added.) 3 Environ.

ment Reporter, Current Developments, 793 at 795,

For the reasons set forth in this brief, the Chamber of

Commerce of the United States of America urges the Court

to hold that the-respondent’s discharges challenged in this

appeal and all similar discharges of process, cooling and

drainage water are subject to regulation under the Control

Act and not the 1899 Act.

Respectfully submitted,

Mrzton A. Sirs,

1615 H Street, N. W.,

Washington, D. C. 20006,

Henry L. Prrts,

208 South La Salle Street,

Chicago, Illinois 60604,

Counsel for the Chamber of

Commerce of the United

States of America.