# Amicus Curiae Brief — United States v. Pennsylvania Industrial Chemical Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0141%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 655 ## Text a FILE COPY is . | nee — 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.)