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

— FILE - FILED

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Supreme Court of the United States

OCTOBER TERM, 1972

UNITED STATES OF AMERICA, PETITIONER

v.

PENNSYLVANIA INDUSTRIAL CHEMICAL

CORPORATION, RESPONDENT

On Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

BRIEF FOR AMICI CURIAE UNITED STATES

STEEL CORPORATION AND WHEELNG-

PITTSBURGH STEEL CORPORATION

URGING AFFIRMANCE

Davm MCNEIL OLDs

JOHN McN. CRAMER -

REED SMITH SHAW & MCCLAY

P. O. Box 2009

Pittsburgh, Pennsylvania

Attorneys for Amici Curiae

WILLIAM FOSTER

Senior General Attorney

United States Steel Corporation

FRANCIS Sr. C. O'LEARY

General Counsel

Wheeling-Pittsburgh Steel Corporation

Or CoUNSEL

March 12, 1973

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 18218

— — PAGE

Questions Presente 1 |

Statement of the Case 2 )

Interest of Amici Curiaeee . 5

— —— A Pre) eee 6, 7

— T W.... 8

I. The Court of Appeals Correctly Held That

PICCO Could Not Be Prosecuted for Fail-

ure to Possess a Permit for

Under Section 13 for Its *

the Monongahela River if No

Existed at the Time of the 1

e — PICCO Could Have O 1

— ᷣ ñÄ ]%¾ôB i. ses

A. 4 Historical of Section

13 Clearly Indicated It Was Addressed

to Protection of Navigation......... 9

B. At the Time of the There

Was No Well-Considered Appellate

Court Interpretation of Section 13

Which Enlarged Its to In-

clude the Regulation of

Not Having an Effect on Navigation 13

C. The Various ent Which ——

Been Advanced 1970 to Su

the Proposition That Section

Addressed to Discharges With Ne

Tendency to Affect Navigation Are

Specious and Would Not Have Caused

a Reasonable Man to Accept the In-

WL, AAA sh aweae canes. 18

D. The Long-Established Administrative

Interpretation of Section 13 at the

Time of the Discharges Involved in

This Case Was That It Only Regu-

lated Discharges With a

Adversely to Affect Navigation ..... 20

Table of Citations.

Mod Federal W: ter Quali iP Aes | 0

ern a 55

as It Existed at the Time of the Nventa

Involved in This Matter 3

III. The Conviction of PICCO Under the In-

formation Involved in This Matter Con-

stitutes a Denial of Due Process Law

Because of the Confusing and

Actions of the United States With

to Water Quality Standards and the

the

—

„JJ 0 cere cuca cae * LI

. of

. Court Holding Rendered Less Signifi-

cant Generally by the 1972 Amendments to

the Water W 4*

. ⁰ ᷑» MM ᷑ĩ᷑/ ̃ / ̃ . ks oo cs bce 47

Appendix “A” — Statutory Provisions........... 48

Appendix “B” — Legislative Debate............. 51

TABLE OF CITATIONS

CASES PAGE

The Albania, 30 F.2d 727 (S. D. N. Y. 1928)...... 17

Boys Markets, Inc. v. Retail Clerks Union, 398 U.S.

.... AAA ˙ . 34

a & nous iy ee 1

The Columbo, 42 F.2d 211 (2d Cir. 1930)

Connally v. General Construction Co., 269 U.S. 385,

391 -(1926)......... F 37

n Public Instruction, 368 U.S. 278

—

Table of Citations.

CASES PAGE

Guthrie v. Alabama By-Products Corp., cert. denied,

41 U.S.L.W. 3442 (February 20, 1973)....... 4

Hotch v. United States, 212 F. 2d 280 (8th Cir. 1954) 24

International Harvester Co. of America v. Ken-

— , ̃ , / eee 38

‘be Merced, 84 F.2d 444 (9th Cir. 1936) 16

Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). 37

Maier v. Publicker Commercial Alcohol Co., 62 F.

Supp. 14 (E. D. Pa. 1945), affd, 154 F.2d 1020

% 6 iin OFA nda ie ons ass 15

McBoyle v. United States, 283 U.S. 25 (1931) ..... 42

Nicroli v. Den Norske Afrika-Og Australielinie, 332

% ef ee Se — 14

Pierce v. United States, 314 U.S. 306 (1941)...... 42

Schact v. United States, 398 U.S. 58 (1970)....... 38

United States v. Ballard Oil Co., 195 F.2d 360 (2d

„ ĩðͥ(ᷣ“ bs cen kako eed eek seas 15

United States v. Cardiff, 334 U.S. 174 (1952).... 42

United States v. Evans, 333 U.S. 483 (1948)...... 42

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

. Ss ⁵³˙²·mn K 31

United States v. L. Cohen Grocery. Co., 255 U.S. 81

JJ. 8 37

United States v. Maplewood Poultry Co., 327 F.

— , ²˙ ¼?F!ß!—— cc ces nce ss 13, 43

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

„„ koa dseahi weg eanwe nae’ 13, 29

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

SUED Civ os kv pd WAKE RATES A Rates cK Leow aes 13

United States v. United States Steel Corp., 328 F.

Supp. 354 (N. D. Ind. 1970)..-.....0.......

Table of Citations.

Cass PAGE

United States v. Weitzel, 246 U.S. 533 (1918)..... 4

- Warner-Quinlan Co. v. United States, 273 Fed. 503

. RRS Ry ree ee ee cece a, 15

CONSTITUTIONS, FEDERAL AND STATE STATUTES

Constitution of the United States:

WN I ... ·WAAA˙²i¹⁵ 37

Federal Statutes:

Act of June 29, 1888, c. 496; 25 Stat. 209, as

emended (New York Harbor Act) § 1 (33

Ue 8 Oe. ..... oo 10, 14, 15

Act of September 19, 1890, c. 907; 26 Stat. 363

hia ei gk bios Ko eins ox wo hve ck al 9, 45

eB Seine ey ome rere ᷣ ae 10, 49

Act of March 3, 1899, c. 425; 30 Stat. 1152

(Rivers and Harbors Act of 1899)

% ED icc » Passim

N ͤ 3, 26

Act of March 3, 1905, c. 1482; 22 Stat. 1147

(Rivers and Harbors Act of 1905)

SO Oe Sees OD. 12, 21

Act of June 7, 1924, 43 Stat. 604, as amended

(Oil Pollution Act of 1924)............. 28

Act of March 28, 1932, c. 90; 47 Stat. 70

(Norris-LaGuardia Act)

% —(— 111111 ĩð ͤ 34, 35

Act of June 25, 1945, c. 645; 62 Stat. 732, as

amended

— % 38

JJ... „„ eR 38

Act of June 23, 1947, c. 120; 61 Stat. 156

(Labor Management Relations Act of 1947)

eee ...... 2.68555 a4

ELI ͤ ee ee

Table of Citations.

PAGE

Act of June 30, 1948, c. 758; 62 Stat. 1155, as

amended (Water Pollution Control Act) .. 25

Act of July 9, 1956, c. 518; 70 Stat. 498, as

amended (Water Pollution Control Act

Amendments of 1956)

J) IN Fe one EP E. ENOEN 26

PPP PORE aay ear 26

ES BS See ere ea ee a 26

Act of August 10, 1956, c. 1041; 70A Stat. 35

// AA K

Act of July 20, 1961, 75 Stat. 204, as amended

Water Pollution Control Act

Act of October 2, 1965, 79 Stat. 903, as amended

(Water Quality Act of 1965)

TTT 27, 29, 39

Act of April 3, 1970, 84 Stat. 91

(Water and Environmental Quality Im-

provement Act of 1970)

J 5 0h ih heb bs ce seee eke 28, 36

Act of October 18, 1972, 86 Stat. 816

(Federal Water Pollution Control Act

Amendments of 1972)

(33 U.S.C.A. §1251 et seq.) ........... 36, 45

Pe RUD nb. œ » O 45

State Statute:

Act of June 22, 1937, P. L. 1987, as amended

§ 1 et seq. (35 PS. § 691.1 et sed.) 2

Table of Citations.

REGULATIONS:

33 C. F. R. (1967 ed) § 200.395 .................. 20

el Sk ge f „

a . 22

33 CHR. SF meee oo ete 21, 22

J ͤ— ↄ wm.l.!. sc ccc cows boues 2, 30

of Engineers Internal „ ER 1145-2-303

(May 18, 1968) § 7(d) 5 VVV 22, 2

MISCELLANEOUS:

26 Cong. Rec. 4358 53d Cong., 2d Session (1894) .. 5

21 Op. Atty. Gen. 305, 308 (1896).............. 1

H. R. Doc. No. 293, ( 54th Cong., 3d Sess., 1896

I! K ö ll

r tease 3230, 58th Cong., 3d Sess., Feb. 23,

H. R. Doc. No. 417, 69th Cong., Ist Sess., 1926.... 19

Executive Order No. 11574, 35 Fed. Bae: 19627

(December 25, 107o00⸗ 6,9

F. Frankfurter, “Some Reflections On The Read-

ing Of Statutes,” 47 Colum. L. Rev. 527 (1947) 33

W. Rodgers, “Industrial Water Pollution And The

Refuse Act: A Second Chance For Water Qual-

ity,” 119 U. Pa. L. Rev. 761 (1971) ......... 5

“A Candid Conversation With The First Adminis-

trator of The Environmental Protection

Agency,” Environmental Science & Technol-

C TTT 41

Wellington & Albert, “Statutory Interpretation And

The Political Process: A Comment On Sin-

clair v. Atkinson,” 72 Yale L. J. 1547 wee”

Comment: “Discharging New Wine Into Old ie:

skins: The Metamorphosis Of The Rivers And

Harbors Act Of * 33 U. Pitt. L. Rev. 483

. VV. ĩͤv 655 ce 12, B

QUESTIONS PRESENTED

1. Whether Defendant can be prosecuted for its

failure to hold a permit under Section 13 of the Refuse

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

treated wastewater with no tendency adversely to affect

navigation alleged to meet applicable water quality eri-

teria which took place in the summer of 1970 prior to

the creation of a program for the issuance of permits

governing such discharges.

2. Whether the Defendant’s claim that it was

affirmatively misled by the Corps of Engineers into be-

lieving that no permit from the Corps of Engineers

was necessary to discharge into the Monongahela River

treated wastewater with no tendency adversely to affect

navigation is an adequate defense to the present pros-

ecution.

Statement of the Case.

STATEMENT OF THE CASE

Respondent, Pennsylvania Industrial Chemical Cor.

poration (hereinafter referred to as “PICCO”), like each

of the amici, owns and operates a manufacturing estab.

lishment on the Monongahela River south of Pittsburgh

in the Western Pennsylvania area. It has two outfalls

to the Monongahela River. One outfall, an iron pipe,

carries cooling water and process water which has

passed through an industrial waste treatment facility

from the plant to the Monongahela River. The other

outfall, a concrete pipe, carries to the river domestic

wastes from several private dwellings in the vicinity

of the plant as well as cooling water and treated proc-

ess water from the plant. At the time of the évents

involved in the instant litigation, PICCO held permits

from the Commonwealth of Pennsylvania for its use of

the two outfalls. These permits provided that the dis-

charge from these outfalls must comply with the water

quality standards established by the Clean Streams Law

of the Commonwealth of Pennsylvania, 35 Purdon’s

Statutes, § 691.1 et seq., and the regulations promul-

gated thereunder. The standards contained in the Penn-

sylvania regulation had been adopted by the Secretary

of the Interior as the federal standards applicable to

interstate waters in the Commonwealth of Pennsylvania

in 1967 pursuant to the requirements of the Federal

Water Pollution Control Act, as amended.* Hence, by

complying with the terms of its permits, PICCO com-

plied with both state and federal water quality stand-

ards governing its discharge into the Monongahela.

»The Pennsylvania standards are 2 as the

federal standards at 40 C. F. R., Ch. I, Part

10.

_ <n

3

Statement of the Case.

PICCO was charged in the four-count information

in the instant case with discharging into the Mononga-

hela River certain “refuse” matter, “to-wit, iron, alumi-

num and compounds containing these chemicals, and

chlorides, phosphates, sulphates and solids“ in viola-

tion of Sections 13 and 16 of the Rivers and Harbors

Act of 1899, 33 U.S.C., Sections 407 and 411. The charges

were based upon samples taken on August 7 and August

19, 1970. The information did not specify the quantity

of these substances discharged or their effect on the

waters of the Monongahela River. The information did

not charge PICCO with pollution or with the deposit of

materials deleterious to the river. It accused PICCO

only of a discharge. It did not charge PICCO with

any violation of either state or federal water quality

standards, or of its permits for each of the discharge

streams.

At the time of the trial the court refused to permit

PICCO to show that its discharges were within the fed-

eral water quality standards applicable to the Monon-

gahela River. It also refused to permit PICCO to offer

evidence as to the effect of its discharges on the water

of the Monongahela River. Although the court ruled

that no discharge of any kind into the Monongahela

River was lawful in the absence of a permit for such

discharge issued by the United States Army Corps of

Engineers, it refused to allow PICCO to show through

witnesses and documents from the Corps of Engineers

that the Corps had never granted a permit for a dis-

charge such as that of PICCO from the date of the

**The second count included manganese in the list

of elements.

“=

Statement of the Case.

enactment of the 1899 statute, and was neither prepared

to process an application for nor to issue such a permit

The case was sent to the jury with the instruction

that any discharge from an industrial establishment,

no matter how innocuous, was a violation of the crim-

inal law of the United States, in the absence of a permit

for it from the Corps of Engineers, regardless of

whether the Corps of Engineers construed the statute

to require such permits or was prepared to receive ap-

plications and issue permits. With such instructions re-

garding the statutory provisions, it came as little sur

prise that PICœ 0 was convicted on all four counts, The

district court judge imposed the maximum permissible

fine. : *

PICCO then appealed to the United States Court at

Appeals for the Third Circuit. That Court reversed. It

held in effect that if the statute prohibited all dis

charges in the absence of a permit, then it was incum-

bent upon the Government to furnish a mechanism by

which a responsible entity seeking to discharge an ac-

ceptable effluent into a waterway could obtain a per

mit, and that unless a mechanism existed by which

PICCO could have obtained a permit for its discharge,

the Government could got prosecute it under the 1899

Act. In the alternative, the Court of Appeals said that

PICCO should have the opportunity to prove that it had

been led to believe by the official regulations and by

statements of responsible representatives of the Corps

that no permit was necessary for the type of discharge

which PICCO made.

Interest of the Amici Curiae.

INTEREST OF THE AMICI CURIAE

Criminal informations were filed against United

States Steel Corporation and Wheeling-Pittsburgh Steel

Corporation in the United States District Court for the

Western District of Pennsylvania on the same day as

the criminal information involved in this matter was

filed against PICCO. The informations involve dis-

charges of substances with no tendency adversely to af-

fect navigation in the summer of 1970 prior to the ex-

istence of a permit program for such discharges. United

States Steel Corporation and Wheeling-Pittsburgh Steel

Corporation moved to dismiss the informations filed

against them. Following argument on the motions to

dismiss, the District Court entered an order deferring

decision of the motions to dismiss until the decision of

the Third Circuit Court of Appeals in this matter. No

decision has yet been entered on the motions to dismiss

and the amici are advised that no decision will be en-

tered pending the resolution of the present matter by

this Court. United States Steel Corporation and Wheel-

ing-Pittsburgh Steel Corporation believe the disposition

of the informations filed against them is likely to be

controlled by the action of this Court in the present

matter. Therefore, they have obtained the consent of

the Solicitor General and counsel — PICCO to file this

brief as amici curiae.

2

Re

Summary of Argument.

SUMMARY OF ARGUMENT

The Court of Appeals for the Third Circuit cor.

rectly held that PICCO could not be prosecuted for tis

failure to hold a permit for the discharge into the Mo

nongahela River in the summer of 1970 of treated proe-

ess and cooling water with no tendency adversely to

affect navigation if no mechanism existed by which

PICCO could obtain a permit for such a discharge. This

conclusion was sound because until December 23, 1970

when the President by Executive Order No. 11574 di-

rected the creation of a permit program under § 13 of

the Rivers and Harbors Act of 1899 for discharges such

as that made by PICCO, reasonable men relying on the

text, the legislative history, the judicial construction,

and the administrative practice followed with regard to

§ 13, would not have believed that a permit was needed

or was available for such a discharge.

If § 13 is regarded as prohibiting a discharge such

as that made by PICCO, it is in conflict with the Fed-

eral Water Pollution Control Act, as amended, which at

the time of the discharges involved in this matter per-

mitted such discharges if they met water quality stan-

dards. The situation called for a judicial accommoda-

tion of the statutes. The Court of Appeals correctly

reconciled this conflict by holding that prosecution for

discharge was not permitted under Section 13 unless a

mechanism existed by which those meeting water qual-

ity standards set pursuant to the Federal Water Pollu-

tion Control Act, as amended, could apply for and ob-

tain permits.

The conviction of PICCO on the facts of the present

case denied it due process of law because of the confus-

Summary of Argument.

ing and conflicting demands of § 13 and the Federal

Water Pollution Control Act, as amended and because

of the misleading conduct of the Corps of Engineers

with regard to the scope of Section 13.

The writ of certiorari should be dismissed as im-

providently granted because the PJCCO decision is with-

out prospective effect, especially in light of the Federal

Water Pollution Control Act Amendments of 1972 and

because its correctness is confirmed by those amend-

ments.

Argument.

ARGUMENT

I. The Court of Appeals Correctly Held That Picco

Could Not Be Prosecuted for Failure to Possess 3

Permit for Discharge Under Section 18 for It’s Dis-

charge Into the Monongahela River if no Mechap-

lam Existed at the Time of the Discharge Through

Which Picco Could Have Obtained a Permit.

The brief of the United States in this case repre

sents an effort to persuade this Court to judge the con-

duct of PICCO in the summer of 1970 by standards first

articulated by the Government in December, 1970. This

effort must be patently offensive to reasonable men and

the Court of Appeals quite properly rejected it. The

Court of Appeals for the Third Circuit told the Govern-

ment that it could not assess criminal penalties against

PICCO for the failure to have a permit for the discharge

into the Monongahela River of material with no tenden-

cy adversely to affect navigation if no mechanism ex-

isted by which PICCO could obtain a permit for such

discharge. This proposition seems so obviously sound

that one may wonder why it was necessary for the

Court of Appeals to declare it. It seems a puzzle that

the United States should prosecute a business entity,

which held appropriate state permits incorporating both

state and federal water quality standards for its dis-

charge of treated waste-water and which was in the

process of constructing upgraded treatment facilities,

for failure to obtain a non-existing permit. It further

seems anomalous that the Government at trial should

have prevented representatives of the Corps of Engi-

neers from giving testimony as witnesses on behalf of

Picco that the Corps had not given permits for dis-

Argument.

charges such as that of PICCO and did not have ad-

ministrative machinery to deal with applications for

auch permits. In order to understand why in the sum-

mer of 1970 PICCO and the Corps of Engineers shared

an understanding of what Section 13 required which is

go at variance with what the United States now con-

tends for in its brief, it is necessary to examine the

enactment, interpretation and administration of Section

13 prior to the Executive Order No. 11574 of Decem-

per 23, 1970.

A. TRE HISTORICAL BACKGROUND OF SECTION 13 CLEAR-

Ly INDICATED THAT Ir Was ADDRESSED TO PROTEC-

TION OF NAVIGATION.

The history of legislation dealing with placing ma-

terials in the navigable waters of the United States

began in 1877 when the Secretary of War sent to Con-

gress a proposal drafted by the Chief of the Army En-

gineers to protect navigable waterways from obstruc-

tion. The draft was placed in the form of a bill, called

the “Dolph Bill,” and was introduced without result into

Congress several times between 1877 and 1890. In the

latter year, at the time Congress was considering the

Rivers and Harbors Appropriation Bill of 1890, the

Dolph Bill was added to the Appropriation Bill as an

amendment and finally enacted on September 19, 1890

(26 Stat. 426; Act of September 19, 1890; c. 907). Sec-

tion 6 of this Act (set out in full in Appendix “A” to

this Brief) was clearly addressed to regulation of dis-

charges with a tendency to obstruct navigation. The

United States has never made a contention to the con-

trary.

Argument.

In 1894, a similar section was added to the River

and Harbors Appropriation Act of 1894 (28 Stat, 33.

Act of August 18, 1894, c. 299). This provision is h

set out in full in Appendix “A” of this Brief. It wy

patterned after a section of an earlier statute (Act of

June 29, 1888, c. 496, § 1) which concerned only. Ney

York harbor and which can today be found at 33 UA

§ 441. The only exchange during the discussion of the

bill which touched on the purpose of their proyis

showed clearly that it was addressed to discharges y vhic

might affect navigation. (See Appendix “B” to *

Brief.) ee

In 1896 a group of mine operators applied tte

Secretary of War for designation of an area of the New

River in Virginia where they could dump ore washings

without violating the 1894 Act. The Secretary deter

mined that the discharge could be made in a way which

would not affect the navigability of the river. However,

because of opposition by parties contending that th

discharge. . . destroys the fish, pollutes the water 860

as to destroy its usefulness for domestic purposes, and

injuries scenery along the stream .. . the Secretary

asked the Attorney General whether he should consider

matters other. then: the effect on navigation <2uage

torney General replied:

“You should be governed only by consti

tions affecting the navigation of the river and, if

there be none now, then by considerations which

may affect future navigation, whether it is likely to

become important or not, which Congress must be

presumed to have had in mind in authorizing th

present and large expenditures which have bem

11

Argument.

made in the improvement of the river.“ (21 Op.

Atty. Gen. 305, 308 (1896) ).

In summary, it is clear that at the time of their

enactment, the Acts of 1890 and 1894 were understood

to be addressed only to the protection of navigation

and not concerned with a discharge such as that made

by PICCO consisting of dissolved material with no ten-

dency adversely to affect navigation.

Because the provisions of the Acts of 1890 and 1894

considered above, as well as other provisions not rele-

yant here, were scattered over many annual rivers and

harbors appropriation bills, Congress in 1896 directed

the Secretary of War (29 Stat. 234) to collect all fed-

eral statutes dealing with navigable waterways and to

compile a draft statute which would incorporate all ex-

isting federal law on the subject. On February 10, 1897,

the Secretary of War forwarded to Congress a compila-

tion of existing statutes and a draft composed by the

Chief of Engineers of a statute which purported to

state the existing law (H. R. Doc. No. 293, 54th Cong.,

2d Sess., 1896-97).

The Chief of the Corps of Engineers, in his report

to the Secretary of the Army, referred specifically to

Section 6 of the Act of 1890 and Section 6 of the Act of

1894, and then proposed what became § 13 of the Rivers

and Harbors Act of 1899 in the exact form in which it

now appears. When the draft of the Chief of Engineers

was offered in Congress as a codification of existing

law, the principal concern was that it be an accurate

restatement of the existing statutes. See 32 Cong. Rec.

2296, 2297. That § 13 was intended to be a codification

of § 6 of the Act of 1890 and § 6 of the Act of 1894 —

12

Argument.

and nothing more — is a proposition that has never

been questioned. And if one traces § 13 back to its

origins in the Acts of 1890 and 1894, it is clear that the

legislative intention was to regulate ——

structing or interfering with navigation.

This intention and understanding are strongly con-

firmed by a piece of subsequent legislation, Section 4

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

This provision is expressly limited to conferring au

thority to prescribe regulations on the deposit of refuse

in order to protect navigation. Section 4 began life a

an amendment to Section 13 of the 1899 Act, and it is

most clear that at all times it was understood as an

implementation of § 13 to aid in enforcement. A reading

of the discussion of § 4 at 39 Cong. Rec. 3230 (58th

Cong., 3d Sess., Feb. 23, 1905), leaves no doubt that § 13

was understood to be concerned with the protection of

navigation.

In summary, ao far an the legislative biste,

is concerned, both the Corps of Engineers and PICO

were on sound ground in supposing that the statute

had no application to discharges such as that made by

PICCO and did not require the Corps to equip itself

to issue permits for such discharges.*

*Comment, ‘ New Wine Into Old Wine

skins: The Metamo Of The Rivers And Harbors —

Act Of 1899,” (Hereinafter “Discharging New Wine”)

33 U. Pitt. L. Rev. 483, 494-507 (1972).

18

Argument.

At THE RELEVANT TIME, THERE Was No WELIL-

¢ CONSIDERED APPELLATE COURT INTERPRETATION OF

SECTION 13 WHICH ENLARGED ITs LANGUAGE To IN-

CLUDE THE REGULATION OF DISCHARGES Nor HAVING

AN ErFrect ON NAVIGATION.

The view that § 13 has been or may be interpreted

to prohibit discharges not having a navigational effect

is often supposed to be supported by the decision of

this Court in United States v. Standard Oil Co., 384

US. 224 (1966), and that case is carelessly cited as

holding that § 13 is a “pollution” statute in the modern

sense, see, e. g., United States v. Maplewood Poultry Co.,

3277 F. Supp. 686 (D. Me. 1971). In fact, Standard Oi

held no such thing. As stated on page 5 of the brief filed

on behalf of the United States in this Court in Standard

Oil, “the only issue . . was whether something which

has not been discarded or rejected by its owner can

constitute refuse matter. The argument of Standard

Oil as appellant was that because the discharge con-

sisted of commercially valuable gasoline, it could not be

considered “refuse” under Section 13. This Court held

that whether matter was “refuse” did not turn on a

factual determination as to its value. Although Justice

Douglas commented at 384 U.S. 229 on the unpresented

issue of the application of § 13 to substances with no

capacity adversely to affect navigation, the determina-

tion of Standard Oũ that “refuse” could include sub-

stances which had a high commercial value before being

thrown into the water did not resolve the issue.

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

482 (1960), decided six years before Standard Oil,

supra, this Court dealt with the “streets and sewers”

exception of Section 13. There the United States sought

e

14

Argument.

an injunction to require the defendant and other many.

facturers to remove solids which they had deposited in

the Calumet River over a period of years and to restore

the channel to a depth of 21 feet. The lower courts

denied the relief.

The United States, in its petition for certiorarj

characterized the question involved as: “Whether the

discharge of industrial waste from steel mills into the

Calumet River, a navigable waterway of the United

States, resulting in a reduction of the navigable capae-

ity of the channel and providing a serious hazard to

ships using it, is prohibited by federal law.” The de.

fendants contended that their discharges of particles in

suspension fell within the exception of § 13 for ma-

„CC aaa mem

rejected that contention.

Neither Republic Steel nor Standard Oil were hold-

ings that § 13 regulates discharges with no tendency

adversely to affect navigation.

Prior to the recent prosecutions brought under § 13,

only a few reported decisions had dealt with the issue

whether it applied to materials with no tendency ad-

versely to affect navigation. In Nicroli v. Den Norske

Afrika-Og Australielinie Dampskibs Aktieselskab, 332

F.2d 651 (2d Cir. 1964), the defendant argued that § 13

and § 1 of the Act of 1888, concerned with New York

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

hosing spilled sugar from the deck of a ship into New

York harbor. The Second Circuit examined the statutes

and concluded at page 655:

“Though the statutory language is broad, the

purpose of these statutes is to prevent the dis-

_—

15

Argument.

charge of matter which will clog or obstruct the

harbor or other navigable waters.” (Emphasis

added )

Warner Quinlan Co. v. United States, 273 Fed. 503

(ard Cir. 1921), was a case brought under the pro-

visions of 33 U.S.C. § 441, which, as has previously been

noted, is closely related to § 13. The court there con-

duded that: “Deposits which do not obstruct or in-

juriously affect the harbor are not prohibited by the

Act.”

At page 16 of its brief before this Court, the Gov-

ernment argues that courts of appeals early declined to

limit Section 13 to a prohibition of discharges with a

tendency to obstruct navigation. As the cases cited

above show, this is not an accurate statement of his-

torical fact. Moreover, an examination of several of

the cases cited by the Government shows that they fail

to support its position.

For example, in Maier v. Publicker Commercial

Alcohol Co., 62 F. Supp. 14 (E. D. Pa. 1945), aff d., 154

F.2d 1020 (1946), cited at page 16 of the Government’s

brief, the alleged violation of § 13 was the deposit

through a city sewer into the Delaware River of some

9,190 tons of non soluble grain residue and over 21,000

tons of grain residue in solution or suspension with the

effect of filling the channel at one point to two feet

above water level at low tide. Obviously, the court had

no occasion to consider the application of § 13 to dis-

charges with no tendency adversely to affect navigation.

United States v. Ballard Oil Co., 195 F.2d 369 (2d

Cir. 1952), involved the dumping of 6,700 barrels of fuel

oil into a navigable waterway. The lower court as trier

_— ~~

ee

16

Argument.

of fact found that the oil which had been an inch thick

on the water and covered boats had the nature and

effect of impeding navigation. The defendant seizeg

upon the conclusion of the district court that the oi

impeded navigation and contended that this finding in.

dicated its conviction must have been based on the pro.

vision of § 13 which is addressed to the placing of

refuse on river banks, and that since the evidence

showed no deposit of refuse on a river bank, the con-

viction could not stand. The real issue was whether

reference by the trial court to the navigational effect

of the discharge necessarily required the conclusion

that the conviction had been under a limited portion of

§ 13, with the consequence that unless the discharge

had been shown to be from a river bank, the conviction

was erroneous. The answer, of course, was obvious —

a navigation-obstructing discharge could be charged

under § 13 regardless of whether the material was de-

posited on a bank or directly in the water. No one be-

fore the court argued that, or was concerned with the

issue whether, the first part of § 13 was addressed only

to materials with a tendency adversely to affect naviga-

tion and the holding of the court did not resolve the

issue. It is worthy of emphasis that the same court in

the later Nicroli case, supra, concluded that § 13 was

not addressed to a discharge with no tendency adverse-

ly to affect navigation.

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

that the first clause of § 13 does not require that a dis-

charge have a tendency to obstruct navigation in order

to be refuse but the facts of the case place it in much

the same category as Ballard and other oil spill cases.

In holding that oil was “refuse” within the meaning of

17

Argument.

§ 13, the Ninth Circuit relied upon two cases decided

under the Act of 1888, dealing with New York harbor,

The Columbo, 42 F.2d 211 (2d Cir. 1930), and The

Albania, 30 F.2d 727 (S. D. N. V. 1928), both of which

stated that oil was in fact a danger to the use of

a harbor for shipping.

In summary, the decisional law in the summer of

1970, taken as a whole and in the context of the factual

situations before the several courts, gave no reason to

the Corps of Engineers or PICCO to question the under-

standing that § 13 did not apply to a discharge such

as that made by PICCO.

18

Argument.

C. THE Various ARGUMENTS THAT HAVE BEEN Ap

VANCED Sm 1970 To Support THE Proposrnmoy

THAT § 13 Is AppRESsED To DISCHARGES WiTH No

TENDENCY ADVERSELY TO AFFECT NAVIGA'

Specious AND WouLD Nor HAVE CAU A I

ABLE MAN To AccEepT THAT INTERPRETATION.

Since the Government launched its 1899 Act “pollu.

tion” prosecution program, it has made a valiant effort

to bolster the conclusion that § 13 is addressed to dis-

charges with no tendency adversely to affect navigation

by a variety of arguments based upon deductions from

provisions in the text of § 13 concerning other subjects.

One such argument is that the provision of § 13 allow.

ing the Chief of Engineers to issue permits for dis-

charges on a finding that anchorage and navigation will

not be impaired would not have meaning unless § 13

covers materials which would not impair anchorage or

navigation. This argument ignores the practical admin-

istration of the 1899 Act. For example, a permit might

allow the discharge of industrial solids on the condition

that the channel be dredged periodically by the dis.

charger in order to prevent actual interference with

navigation or it might authorize discharge in an area

outside the channel of navigation. Indeed, these ex-

amples are typical of the practice of the Corps of Er

gineers in 1970 and for 70 years before in connection

with permits under other provisions of the 1899 Act

than § 13.

Another such argument is. the contention that the

exception in § 13 for materials “flowing from streets

and sewers and passing thereirom in a liquid state”

shows that § 13 was addressed to liquid materials with

no tendency adversely to affect navigation. The un-

19

8

stated premise in this argument — that material flow-

ing from municipal streets and sewers in 1899 did not

have a tendency to obstruct navigation — is shown to

be of dubious validity by a report of the Rivers and

Harbors Committee of the House some years later

which observed:

“In some instances the organic solid matter in

sewage and wastes causes temporary shoaling in

the vicinity of the point of discharge, but in most

cases of this kind, nature eventually decomposes

the organic matter and rectifies the condition. In a

few instances, where large quantities of sewage are

discharged into sluggish and restricted waters,

over-pollution results and the oxygen content re-

mains insufficient to enable nature to break up the

solids. In such cases, permanent shoaling in the

vicinity of the point of discharge results and dredg-

ing must be restored to. As a rule, dredging is well

attended to by municipal authorities.”*

Sewage was a physical threat to navigation if

dumped in large masses into the waterways. The mu-

nicipal corporations were permitted to continue their

former practices of discharing into the water, provid-

ing the discharges were liquid enough to encourage the

natural degradation and biological self-disposal of

human wastes to occur. Thus, one aware of the facts

concerning the disposal of municipal sewage, as the

Corps undoubtedly was and is, would not have been led

to the conclusion that § 13 was addressed to discharges

with no tendency adversely to affect navigation.

H. R. Doc. No. 417, 69th Cong., Ist Sess. 9 (1926)

20

Argument.

D. THE LONG-ESTABLISHED ADMINISTRATIVE INTERPgs.

Tarom Or Section 13 Ar THE In OF THE Dy.

CHARGES INVOLVED In THis CasE Was THAT It om

REGULATED DiscHaRGEs WiTrH A TENDENCY Ap.

VERSELY To AFFECT NAVIGATION.

Until the recent change of position by the United

States with respect to Section 13, it is obvious from the

published regulations of the Corps of Engineers that it

understood § 13 to be addressed to discharges with

tendency adversely to affect navigation.

The United States concedes with exquisite reluc-

tance at page 35 of its brief “that in defining its re

sponsibilities under the 1899 statute as directed.

principally against the discharge of those materials

that are obstructive or injurious to navigation’ (33

C.F.R. (1967 ed.) 209.395), the agency for many years

viewed its role narrowly.” While not literally a half.

truth, or a malicious misstatement, it is hardly a candid

acknowledgement of a fact which the hapless defendant

in this case was denied any reasonable opportunity to

prove — that neither the Corps of Engineers, nor the

Department of Justice, nor thousands of reputable, law-

abiding industries discharging various types of “used”

water into streams had any idea that the Corps of

Engineers had the power or the responsibility under the

1899 Act to act with reference to discharges having no

potential for adversely affecting navigation.

The United States argues, however, that a revision

of the regulations published in 1968 represented a clear

change in position by the Corps of Engineers. In fact,

the revisions represented no such thing.

21

\ Argument.

The only mention of § 13 in the revised regulations

was as follows:

Title 33 C. F. R., Section 209.200 (e):

“(2) Section 13 of the Rivers and Harbors

Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C.

§ 407) authorizes the secretary of the army to

permit the deposit of refuse matter in navigable

waters, whenever in the judgment of the chief of

engineers anchorage and navigation will not be in-

jured thereby, within limits and under conditions

to be prescribed by him. Although the department

has exercised this authority from time to time, it is

considered preferable to act under Section 4 of the

Rivers and Harbors Act of March 3, 1905 (33 Stat.

1147; 33 U.S.C. § 419). As a means of assisting the

chief of engineers in determining the effect on

anchorage of vessels, the views of the U. S. Coast

Guard will be solicited by coordination with the

Commander of the local Coast Guard District.”

Section 4 of the Rivers and Harbors Act of March

3, 1905, 33 U.S.C. § 419, as noted above, authorized the

Secretary of the Army to prescribe regulations to govern

the transportation and dumping into any navigable

water of dredgings, earth, garbage, and other refuse

matter of every kind whenever in his judgment such

regulations are required “in the interest of navigation.”

(Emphasis added) The regulations of the Corps of En-

gineers until the issuance of new regulations regarding

§ 13 on April 7, 1971, consistently demonstrated that it

regarded § 13 and 33 U.S.C. § 419 as virtually identical

provisions to extent that they provided that the

preferred was to treat applications for permits

under § 13 as applications under § 419.

Argument.

Moreover the Corps of Engineers had issued an

internal regulation concerning permits for

promulgated May 18, 1968, ER 1145-2-303, which states,

inter alia, in 7 (d):

The concern of the Department of the Army

in industrial wastes under this program lies in the

effect the suspended solids contained in the effluent

from industrial outfalls have on the navigable ca-

pacity of the water way. The Department is primar.

ily concerned under this program with the shoaling

of authorized improved navigation channels and in

placing the responsibility and/or cost for removing

these shoals on those industries that are causing

them.“

The United States now argues that PICCO should

have disregarded this long-established position of the

Corps of Engineers because of a change of policy that

took place some time subsequent to 1968.

As we have noted, Section 209.200 (e) (2) of the

regulations was the only section which referred ex-

plicitly to § 13 at the time the alleged violation of PICCO

took place. 33 C.F.R. 209.120(d) (1), on which the Gov-

ernment relies, did not cite § 13. It is true that this pro-

vision states “the decision as to whether a permit will

be issued must rest on an evaluation of all relevant

factors, including the effect of the proposed work on

navigation, fish and wildlife, conservation, pollution,

aesthetics, ecology, and the general public interest.

The position of the Corps of Engineers in this regard

was fully justified, for the legislative history of 33

U.S. C. § 419 3 Agee S Rec. 3230 (58th Cong,

3d Sess., Feb. 23 23, 1905), makes clear that § 419 was

intended to provide for the implementation of § 13.

23

Argument.

However, the inventory of “principal laws” administered

by the Corps in § 209.120 (b) did not include § 13. An

announcement that “pollution, aesthetics, ecology and

the general public interest” will be considered in con-

nection with an application to the Corps for permission

to dredge and fill in the navigable waters is not the

equivalent of a statement that henceforth a permit will

be required for an activity which has no effect on naviga-

tion.

; It is also true that the memorandum of understand-

ing dated June 13, 1967 between the Secretary of the

Interior and the Secretary of the Army does refer to

pollution problems which may arise from discharges

permitted under the 1899 Act. However, since discharges

with a tendency adversely to affect navigation may well

have a pollutional effect, this reference to pollution does

not prove that the Corps of Engineers had suddenly

decided that § 13 was addressed to an discharges.

Obviously the memorandum of understanding did not

inhibit the Corps from promulgating its leter internal

regulations, ER 1145-2-303, the 1968 regulation referred

to above, which indicated its concern was with sus-

pended solids and navigation.

In the appendix to its brief, the United States cites

press releases by the Corps of Engineers at Washington

dated May 19, 1970 and July 30, 1970, apparently as

support for the proposition that the Corps had changed

its interpretation of § 13 and then and thereafter re-

quired permits for discharges such as that made by

PICCO. It is by no means clear that these documents

bear this interpretation. Moreover, the Government at

no time offered evidence of the existence of these press

releases, or of their publications, or that PICCO or any-

aA

Argument.

one else in Western Pennsylvania had actual

of them. There is a serious question as to whether it is

proper to charge a criminal defendant with constructive

knowledge of material contained in a press release of

unknown distribution and publication rather than in the

Federal Register, Hotch v. United States, 212 F.2d 280

(9th Cir. 1954).

In summary, both PICCO and the Corps of Engi-

neers at the time of the alleged criminal violations in

this case had a well-founded belief that Section 13 had

no application to a discharge with no tendency adversely

to affect navigation and that therefore, no permit under

13 was necessary for such a discharge. As a result,

im the case of Section 13, conspicuously unlike related

statutory provisions administered by the Corps, for ex-

ample, 33 U.S.C. § 403, there was no permit program,

no form of application, no form of permit, no admin. -

istrative apparatus.

The Court of Appeals, even though willing to accept

the modern,“ post-1970 contention that § 13 has ap-

plication to a discharge such as that of PICCO, was not

willing to accept the irrational, absolutist position that

the principal function of § 13 is to stand as a total bar

to any and all discharges. Rather, it concluded that the

object of § 13 is to permit discharges under controlled

circumstances — that inherent in that objective is the

requirement of a permit program — and that in the

absence of the permit program which is an integral part

of the statutory scheme, Congress did not intend crim

inal penalties to be assessed for the failure to possess

a permit. Putting it another way, the Third Circuit

reached the sensible conclusion that, even if the 1899

Act was capable of the interpretation of being more than

Argument.

a statute to prevent obstruction to navigation, the crime

Congress intended to create was that of making such a

discharge without a permit, not of making any discharge

—since “any discharge” is too vague a standard to be

accepted as the measure of a crime.

II. The Construction of § 13 by the Court of Appeals

Properly Resolved the Conflict Between § 13 and

the Modern Federal Water Quality Legislation as

It Existed at the Time of the Events Involved in

This Matter.

It is obvious that if § 13 is read as being appli-

cable to a discharge such as that of PICCO, then

a conflict exists between the 1899 Act and modern fed-

eral legislation dealing specifically with water pollution

as it existed prior to October 18, 1972.“ In order to ap-

preciate the resolution of the conflict by the Court of

Appeals, it is first necessary to review the statutory

provisions involved to understand the nature and éxtent

of the contradiction.

The history of the federal water pollution legisla-

tion can be set forth succinctly. It originated in 1948

with the Water Pollution Control Act, 62 Stat. 1155.

This Act charged the Surgeon General of the United

States with the task of dealing with the problem of

*E.g., W. Rodgers, “Industrial Water Pollution And The

Refuse Act: A Second Chance For Water Quality,” 119

eat fe 5 1 WS . the new pro-

lures erring 197] permit program under

the 1899 Act] represented a repudiation of the 1965

as thoroughly as that year’s enactment

ignored the underlying philosophy of the 1899 Refuse

26

Argument.

water pollution. Although the Act did contain a pro-

vision whereby the Attorney General, within certain

limitations, could bring an action to abate pollution, the

Act contained no definitions or standards of what con-

stituted “pollution” and was generally unenforced and

unenforceable. Section 24 of the Water Pollution Control

Act of 1948 expressly stated that Sections 13 through

17 of the Rivers and Harbors Act were not affected by

its enactment. The Water Pollution Control Act Amend-

ments of 1956, 70 Stat. 498, expanded the powers of the

Surgeon General and specifically provided in Section

8(c) that in cooperation with state authorities he could

convene conferences to deal with specific pollution prob-

lems, could provide state authorities with the results of

such conferences, and could recommend that state action

be taken to abate nuisances. Section 8(b) of the 1965

Amendments provided:

“Consistent with the policy declaration of this

chapter, state and interstate action to abate pollu-

tion of interstate or navigable waters shall be en-

couraged and shall not, except as otherwise pro-

vided by or pursuant to court order under subsec-

tion (h) of this subsection, be displaced by federal

enforcement action.” (Emphasis added)

The avowed policy of the Water Pollution Control Act,

after amendment in 1956, was thus to make abatement

of pollution problems primarily a state concern. The

1956 amendments reenacted in Section 12 the provision

of the original Water Pollution Control Act saving the

effectiveness of the 1899 Rivers and Harbors Act, Sec-

tions 13 through 17. Neither the legislative history of

the Water Pollution Control Act of 1948 nor that of the

1956 amendments elucidates in what manner Congress

27

Argument,

envisioned the 1899 Rivers and Harbors Act and the

Water Pollution Control Act would interact. However,

it is clear from the reported cases that enforcement of

§ 13 had historically involved two types of cases —

accidental discharges of oil and discharges of industrial

solids, both of which genuinely interferred with the

navigable use of waters. The reported cases show that

this pattern of the use of § 13 remained true into the

year 1970. There is nothing surprising in the decision of

Congress not to allow its water pollution legislation to

interfere with or impede the operation of § 13 in the

circumstances in which it had been historically applied.

Water pollution control again received Congression-

al attention in 1961 and 1965. The Federal Water Pollu-

tion Control Act Amendments of 1961 empowered the

Attorney General to bring actions in a federal district

court without consent of a concerned state in any case

in which the health of persons in a state other than that

of the origin of the discharge was endangered, 75 Stat.

204, § 8(b). Actions where the effect of the discharge

was limited to a single state could be brought with the

consent of the governor of that state. In 1965 the Water

Quality Act, 79 Stat. 903, amending the Water Pollution

Control Act, effected a comprehensive revision of the

federal water pollution legislation. For the first time,

provisions for establishing standards were enacted as

Section 5(c) (1). As provided in the 1965 Act, states

which set standards for water quality which were ac-

ceptable to federal authorities in effect established the

standards applicable in abatement actions in federal

courts under the Water Pollution Control Act, because

those “state” standards also became “federal” standards

by virtue of the approval.

Argument.

| The then existing provision of the Water Pollution

Control Act which “saved” the 1899 Rivers and Harbors

Act was untquched by these amendments. No mention

of this saving provision was made either in the text or

legislative history of the 1961 amendments or the Water

Quality Act of 1965. Section 107 of the Water and En-

vironmental Quality Improvement Act of 1970, 84 Stat.

91, deleted a reference to the Oil Pollution Act of 1924,

(which had been repealed by the 1970 Act) from the

“savings” of the Water Pollution Control Act, but again

there is no legislative history to suggest that the failure

to change the language in the same savings clause as to

the 1899 Act had any significance. There was certainly

no affirmative indication of Congressional purpose with

regard to coordination between the 1899 Rivers and

Harbors Act and the Water Pollution Control Act.

- The Government’s argument at pages 20 and 21 of

its brief that § 13 was “saved” because it provided an

alternative enforcement procedure is contrived and un-

persuasive. A more obvious and plausible rationale for

the inclusion in the savings clause of the 1899 Act

can be found in the fact that at the times when the

savings clause was first drafted in 1948 (and at all

times when it was subsequentiy reenacted)* it was

generally understood (and presumably therefore, also

by Congress) that § 13 was addressed to materials

with a tendency adversely to affect navigation. Al-

though all discharges which might be thought to

pollute in the modern sense do not have a tendency

adversely to affect navigation, many matterials with

a tendency adversely to affect naviggation, are pollu-

tants. It is only logical that Congress, in dealing

A “Discharging New Wine,” supra, 33 U. Pitt.

L. Rev. at 521, Note 154.

i 20

Argument.

with substances covered by the modern legislation as

pollutants, would not want to abolish the remedies

previously constructed for dealing with these same sub-

stances when they tended to affect navigation. In this

connection, it must be remembered that Congress con-

signed primary responsibility for dealing with water

pollution to the states. One might well choose to delegate

control over the discharge involved in Republic Steel,

supra, for example, to the states insofar as it a

pollution problem but retain federal remedies for ddal-

ing with it if it interfered with navigation.

That there is a conflict between the two statu

schemes under the Government’s view of the 1899 Act

is easily demonstrated. The Water Pollution Control

Act, as it stood at the time of the alleged offenses in

this information, provided for establishment of federal

water quality standards (principally through state

action), 79 Stat. 903, § 5(c) (1), and empowered the

Attorney General to seek abatement of discharges which

failed to meet these standards. Of course, discharges

which did meet the applicable water quality standards

were not subject to abatement under any provision of

the Water Pollution Control Act. By contrast, Section

13 dealt with discharges of an undefined subject mat-

ter called “refuse” into navigable waterways. Although

Section 16, the enforcement provision for § 13, 33 U.S.C.

§ 411, does not explicitly provide for an injunctive rem-

edy, case law has established that the Attorney Gen-

eral possessed the power to seek and obtain injunctions

in § 13 cases, see e.g., United States v. Republic Steel

Corp., supra.

The synthesis of this legislation by the Govern-

ment is that in 1970 the Attorney General had the pow-

30 88

Argument.

er to obtain an injunction under the Water

obtain an injunction against discharges which did com.

ply with the Water Pollution Control Act standards,

simply by seeking relief under the 1899 Act and not

mentioning the modern scheme of water pollution con-

trol under the Water Quality Act of 1965. The result

is, of course, incongruous and intolerable. 4

This interpretation would give a prosecutor license

to disregard the carefully formulated legislation of this

era by invoking the primitive prohibitory language of

a statute of the last century at his unfettered discre-

tion. If the Government’s contention as to the relation-

ship of the two statutes is correct, the water quality

standards of the 1965 Water Quality Act are meaning-

less. The point is illustrated by the circumstances of

the instant case in which the United States obtained a

criminal conviction of PICCO for violation of § 13 de-

spite PICCO’s offer to prove its compliance with the

standards set pursuant to the 1965 Water Qualty Act.

The Court of Appeals properly refused to approve

such a result. It did not permit the efforts of Congress

in providing for water quality standards in the 196

Water Quality Act to be rendered pointless by the use

of the 1899 Rivers and Harbors Act, which at the time

of its enactment and today contains no water quality

standards. Likewise, this Court must surely recognize

that improvement of water quality in the 19708 iss

problem of adjusting the economically and technologi- .

cally possible to the environmentally necessary; it is

not a goal to be reached by distortion of an act of the

31

Argument.

past century into an absolute prohibition of any dis-

charge, an absolute prohibition which invites discrimi-

tue issue which faces this Court is one of the ac-

commodating or reconciling the 1899 Rivers and Har-

pors Act with the Water Quality Act. This accommoda-

tion does not require a decision that the enactment of

the 1965 Act repealed by implication certain provisions

of the 1899 Act and we do not so argue.* Accommoda-

Jet the has often been incorrectly 80

characterized. r example, in United States v. Inter-

lake Steel Corporation, F. Supp. 912 (N. D. III.

1969), a lower court case much cited by other lower

courts in the Seventh Circuit, the information charged

Interlake Steel Corporation, a codefendant in the ear-

lier Republic Steel case, with iron particles

(mill scale) and an oily substance into the Little Calu-

met River. The defendant moved to dismiss the infor-

mation. At 916 of its opinion, the court dealt with

the problem of the a t conflict between the stat-

utes. It characte the defendant’s argument as one

that “Section 13 of the Rivers and Harbors Act is super-

seded and modified by the Water Act of 25

Republic Steel Corp., supra, which held that u discharge

Orp., 7 a

into the Little Calumet er

in the instant information violated the Rivers and

bors Act cannot stand in t of the Water Quali

Act.” The court tected "task argument on —

grounds. The first was the saving clause for the Rivers

and Harbors Act in the Water Act of 1965. The

second was that the Water Act of 1965 was in-

tended to upgrade water standards. The third was tha’

the discharges probably violated water quality stan-

dards in any event.

Interlake is clear! from the instant

case in the scope of the question to be considered. The

amici here do not argue that the Water Quality Act of

1965 superseded the Rivers and Harbors Act of 1899

Argument.

tion does involve coming to grips with the fact that

criminal prosecution of a person for allegedly discharg.

ing “refuse” under 1899 Act, regardless of that person's

compliance with the 1965 Water Quality Act, most dubi-

ously serves the purpose of Congress in trying to re-

solve the difficult problem of water pollution in the

United States. Specifically, accommodation in the pres-

ent context requires the conclusion that before PICCO

could be prosecuted under § 13, it should have had the

opportunity to obtain a permit under § 13 on a show-

ing that its disch compiled with the standards set

pursuant to the 1965 Water Quality Act. It is not pre-

sumptuous to suggest that this apparently was what

President Nixon contemplated would be the practical

or overruled Republic Steel, supra. Our argument is

that the statutes must be accommodated so that they

further rather than frustrate the intent of Congress.

We submit that the Illinois court was in error when

it reasoned that the Water Quality Act of 1965 was in-

' tended only to secure higher water quality standards

than the Refuse Act and therefore an accommodation

of the two acts was not necessary. or desirable to

ameliorate the absolute prohibition of the Rivers and

1 If 8 and moe ag is an *

ute pro on o discharges then the

the enactment of the Water Quality Act is Aircleult to

perceive. Obviously, however, the purpose of the lat-

ter act is to set standards for industrial discharge which

recognize the reality that industrial use of water within

defined limits established by such standards is vital and

on the public interest, yet protect the quality of the na-

tion’s waterways.

Of course, the result in Interlake might have been

correct on the ground that the discharge involved was

similar to the discharge in the lic Steel case and

therefore was a hazard to navigation.

— 7

33

Argument.

manner of operation of the 1899 permit program, had it

‘ sage. :

It is no answer to the problem of statutory accom-

odation outlined above to say that the meaning of the

words in the savings clause as to the 1899 Act of the

Water Pollution Control Act is clear“ and therefore

they permit no interpretation. As Mr. Justice Frank-

furter observed: Anything that is written may pre-

sent a problem of meaning, and that is the essence of

the business of judges in construing legislation. The

problem derives from the very nature of words.” Some

Reflection On The Reading Of Statutes,” 47 Colum. L.

Rev. 527, 528 (1947). It is the function of the courts

to give effect to the purpose of legislation and to

develop statutory meaning rationally. Where two sta-

tutes appear to conflict in purpose and product absurd

results if applied in a literal and narrow manner, it is

an abnegation of the judicial function to observe that

it is for the legislature to resolve the conflict and

abandon the field. In the words of one authority:

“To assume that accommodation or reconcili-

ation of apparently conflicting statutes is work

only for the legislature is to ignore the dynamics

of legislative process. The problem, as it comes

to the court, may have been unforeseeable at the

time of legislative deliberation . . Judicial accom-

modation can be accomplished only by ascertaining

the purpose of each statute through an examina-

tion of the language, history and judicial gloss that

has been placed on each.” Wellington and Albert,

“Statutory Interpretation And The Political Pro-

Argument.

cess: A Comment On Sinclair v. Atkinson,” 72 Yale

L. J. 1547, 1551 (1963) (Footnote omitted)

This Court has very recently demonstrated the

proper judicial role in preventing multiple statutes

dealing with the same subject matter from producing

an anomalous result in Boys Market, Inc. v. Retail

Clerks Union, 398 U.S. 235 (1970). There the Court

was faced with two flatly contradictory statutes: the

provision of the Norris-LaGuardia Act, 29 U.S.C. § 104

which provides that the courts of the United States

lack jurisdiction to issue injunctions in cases involving

labor disputes, and the Sommand of § 301 of the Labor

Management Act, 29 U.S.C. § 185(a) which directs fed-

eral courts to take jurisdiction of cases involving labor

disputes.

A pattern had developed involving the no-strike

provision frequently found in collective bargaining

agreements containing an arbitration clause. If a union

struck in defiance of its promise to arbitrate, the em-

ployer would bring an action in a state court, seeking

an injunction against the strike, and enforcement of

the agreement to arbitrate. The injunctive remedy was

available in many state courts. The union would re-

move under 29 U.S.C. § 185(a) to the nearest federal

court, and the federal court, following the literal dic-

tates of the Norris-LaGuardia Act, would refuse to

enjoin the strike. The result was complete frustration

of a Congressional purpose to resolve labor disputes

peacefully.

While the two conflicting statutory. provisions did

not expressly refer one to the other, it was not possible

to argue that the later-enacted provisions of the Labor

35

Argument.

Management Relations Act had repealed the Norris-

LaGuardia Act nor was that argument offered. The

Court observed at 398 U.S. 250:

“The literal terms of § 4 of the Norris-

LaGuardia Act must be accommodated to the sub-

sequently enacted provisions of § 301(a) of the

Labor Management Relations Act and the pur-

poses of arbitration. Statutory interpretation re-

1 quires more than concentration upon isolated

words; rather, consideration must be given to the

total corpus of pertinent law and the policies that

inspired ostensibly inconsistent provisions.

citations]

The Norris-LaGuardia Act was responsive to

a situation totally different from that which exists

today.“

Unwilling to frustrate the Congressional purposes of

peaceful settlement of labor disputes by a literal read-

ing of the quite clear language of the Norris-La Guardia

Act that federal courts were not to grant injunctions in

labor disputes, this Court concluded. . . that the core

purpose of the Norris-LaGuardia Act is not sacrificed

by the limited use of equitable remedies to further this

important policy” (of resolving labor disputes peace-

fully.) 398 U.S. at 253.

The present case presents the same sort of conflict

for judicial resolution. In the summer of 1970, it was

the evident policy of Congress to establish control of

water quality by a process of definition of the problem,

erection of standards, discussion with concerned indus-

tries in conference and before hearing boards, and

finally abatement as a last resort where compliance

36

Argument.

was not achieved through other than legal action. It

was a policy in which states were to play the primary

role. Where a corporation was in compliance with both

state and federal standards, and was proceeding on a

schedule to improve pollution control equipment as was

PICCO in the instant case, no proper purpose was

served by a criminal prosecution of it under the 1899

Act. This Court should affirm the conclusion of the

Court of Appeals that the prosecution of PICCO on

the facts of the present case was not desired or even

contemplated by the Congresses which passed Section

13 or the several modern water pollution control

statutes.

In this connection it is significant that the compre-

hensive Water Quality Act Amendments of 1972 spell

out a procedure with regard to Section 13, and permits,

which is most similar to the result of the decision of the

Court of Appeals and manifestly reflects the policy

consideration argued in this brief.

37

Argument.

III. The Conviction of Picco Under the Information In-

volved in This Matter Constituted a Denial of Due

Process of Law Because of the Confusing and Mis-

leading Actions of the United States with Regard

rn SS

tion 13.

The due process clause of the Fifth Amendment

measures statutory provisions which define certain con-

duct as criminal. To square with its requirements, a

statute must convey adequate warning to men of rea- |

sonable intelligence; it must not be so indefinite or con-

tradictory that one who would obey the law must nec- |

essarily guess at what is and is not prescribed. “... a

statute which either forbids or requires the doing of an

act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to

its application violates the first essential of due process

of law.” Connally v. General Construction Co., 269 U.S.

385, 391 (1926). No one may be required at peril of

life, liberty or property to speculate as to the meaning

of penal statutes. All are entitled to be informed as

to what the state commands or forbids.” Lanzetta v.

New Jersey, 306 U.S. 451, 453 (1939) (Footnote

omitted). This proposition has been recognized in such

other cases as Cramp v. Board of Public Instruction, 368

US. 278 (1961), Champlin Rfg. Co. v. Corporation Com-

mission, 286 U.S. 210, 243 (1932), and United States v.

L. Cohen Grocery Co., 255 U.S. 81 (1921).

A criminal statute should not be read in isolation.

Statutes which refer to the criminal provision under

which the charge is framed or deal with the same sub-

ject matter must be considered as well in testing the

statute for compliance with demands of due process. In

38

Argument.

Schact v. United States, 398 U.S. 58 (1970), this Court

pointed out that the validity of the narrow statutory

provision under which the indictment had been framed

had to be considered in light of other pertinent staty.

tory provisions:

“Our previous cases would seem to make it clear

that 18 U.S.C. § 702, making it an offense to wear

our military uniforms without authority is, stand -

ing alone, a valid statute on its face. [Citation]

.. . . But the general prohibition of 18 U.S.C. § 703

cannot always stand alone in view of 10 U.S.C.

§ 772, which authorizes the wearing of military

uniforms under certain conditions . . .” 38 U.S. 58,

61 (1970).

In International Harvester Co. of America v. Kentucky,

234 U.S. 216 (1914), the Court examined three separate

statutes and the state constitution to determine the ap-

plicable principles of law.

The provisions of § 13 likewise cannot be read in

isolation, but instead must be tested in the context of

other laws applicable to discharges into navigable

water, specifically the Water Quality Act of 1965,

amending the Water Pollution Control Act of 1948.

Schact and International Harvester are an ample an-

swer to the argument that a statute cannot be rendered.

unconstitutional by the effect of other legislation deal-

ing with the same subject matter.

As noted above, the Water Quality Act of 1965 pro-

vided that states might establish water quality stan-

dards which, when approved by federal authorities,

would become federal standards. In the case of the

Monongahela River, the standards set by the Common-

Argument.

wealth of Pennsylvania were accepted as the federal

standards in 1967. 40 C.F.R., Ch. I, part 120.10. Dis-

charges which fell outside the established standards

were subject to abatement under § 5 of the Water Qual-

ity Act of 1965 and § 8(f) of the Federal Water Pollu

tion Control Act Amendments of 1961. Procedures for

notification of violation, for holding a conference be-

fore a hearing board and for reviewing applicable water

quality standards are set out as preliminary steps in

achieving compliance without resort to legal action by

the Attorney General. Although the Water Pollution

Control Act, as amended, did not explicitly so state, dis-

charges which did comply with the water quality stan-

dards set pursuant to it were not subject to abatement

under any of its provisions: This statutory framework

is a realistic approach to a complex, important prob-

lem. Our industrial age has brought with it the dis-

charge of by-products and waste materials into our

waterways. The approach to the problem adopted by

Congress in the Water Quality Act of 1965* was (a) to

recognize that a certain amount of discharge is inevit-

able under the current state of technology and economy,

(b) to define standards of water quality beyond which

discharges are unlawful and hence subject to abatement

as nuisances, and (c) to enforce these standards, all

the while exploring the possibilities of improving the

standards and lowering the amount of pollutants per-

mitted in the necessary discharges. The implication of

the Water Quality Act was that discharges which met

or bettered the existing water quality standards were

lawful, at least until the standards were raised.

*And continued in the Federal Water Pollution Con-

trol Act Amendments of 1972.

Argument.

On the other hand, § 13 purports to make discharge

of “refuse” of any kind or matter not only unlawful and

hence subject to abatement, but criminal as well.

As we have already pointed out, if § 13 is given the

meaning which the Government argues for in the in-

stant case, persons or corporations causing discharges

of any kind into navigable waterways prior to the cre-

ation of the permit program in 1971 were criminally

liable, despite the fact that the discharges were fully

in compliance with the water quality standards of the

Water Quality Act of 1965. The bizarre result would

follow because the two statutes, combined into a single

paragraph would read approximately as follows:

“States have the primary responsibility for es-

tablishing water quality standards. Where states

have established standards acceptable to the Ad-

ministrator of the Environmental Protection Agen-

cy, those standards are federal standards as well.

If, however, a state does not adopt standards, or

adopts inadequate standards, then the Administra-

tor of the Environmental Protection Agency may

prescribe standards by regulation. All discharges

which fail to meet the applicable standards of this

section are nuisances and are subject to abatement

by the Attorney General if compliance cannot be

achieved by conciliation and negotiation before a

hearing board. All discharges of refuse or matter

of any kind into navigable waterways are criminal

acts and are here condemned as misdemeanors, pro-

vided further that the Secretary of the Army,

whenever in the judgment of the Chief of Engi-

neers anchorage and navigation will not be injured

thereby, may permit discharges upon application

to him.”

—

41

Argument.

What meaning does this composite statutory scheme

convey to a man of common intelligence? The incon-

sistency is patent; discharges which meet applicable

water quality standards are not nuisances and are not

subject to even the civil remedy of injunction in abate

ment, and yet the same discharges are criminal and

subject the actor to fines and imprisonment. A statu-

tory scheme so inconsistent that a reasonable man does

not know what is proscribed and what is approved vio-

lates the requirements of due process.*

Indeed, ag Director of n |

tection Agency has recognized this difficulty. an

Interview with William Ruckelshaus, published in the

May, 1971 issue of Environmental Science and Tech-

nology under the caption, “A Candid Conversation With

The First Administrator Of The Environmental Protec-

tion Agency,” the following exchange took place at page

392:

(QUESTION ]

“Isn’t there overlapping federal jurisdiction on

enforcement already under the Refuse Act and the

Federal Water Pollution Control Act?”

[ANSWER BY MR. RUCKELSHAUS]

“The laws almost contradict one another. Under

the 1899 Refuse Act, it is against the law to dump

refuse into the navigable waters or their tribu-

taries without a permit. The Federal Water Pollu-

tion Control Act specifies the setting of standards

by the states and approval by the federal govern- :

ment. Under the 1965 act, the people are to — :

with the water quality standards; it says nothing

about discharge into a stream being illegal.

“It really isn’t entirely fair to say that the rea-

son a person is being sued under the Refuse Act is :

because they don’t have a permit. They couldn’t

get one if they wanted to. Until the permit pro-

of the Corps of Engineers was announced d

te last year, we didn't have any permit program

for the discharge of waste into a stream.”

FFKFKLFP

Argument.

In United States v. Evans, 333 U.S. 483 (1948), this

Court was faced with a federal criminal statute which

was internally inconsistent. The defendant had one in-

terpretation of the statute; the government had an-

other. Both were possible and reasonable constructions

of the wording of the statute. The straightforward ap-

’ proach of this Court was simply to refuse to apply the

statute to the defendant. No mention of due process

was made, the Court being of the view that it could not

apply the statute if it did not know what it meant. It

seems evident that the application of such a statute

would be a clear violation of due process.

In United States v. Cardiff, 334 U.S. 174 (1952),

the statutory provisions involved were found contra-

dictory. There the majority observed:

“We cannot sanction taking a man by the heels

for refusing to grant the permission which this

Act on its face apparently gave him the right to

withhold. That would be making an act criminal

without fair and effective notice.” 344, U.S. 174,

176.

Other cases in which this Court has simply refused

to apply a criminal statute for reasons of vagueness,

indefiniteness or uncertainty include Pierce v. United

States, 314 U.S. 306 (1941), McBoyle v. United States,

283 U.S. 25 (1931), and United States v. Weitzel, 246

U.S. 533 (1918).

That there was a conflict between the Water Qual-

ity Act of 1965, as amended, and § 13 of the Rivers and

Harbors Act of 1899, 33 U.S.C. § 407 as the Govern-

ment interprets it, is an irresistible conclusion. The for-

mer informed the would-be, law-abiding citizen that

_

43

Argument.

“conduct X is approved if it meets certain standards.”

The latter informs the citizen that “conduct X is totally

proscribed, on pains of criminal penalties.” The result

was an indefiniteness and confusion that is fatal under

due process requirements.

Courts which have written decisions in recent pros-

ecutions brought under § 13 have recognized the anom-

aly in such prosecutions. In United States v. Maplewood

Poultry Co., 327 F. Supp. 686 (D. Me. 1971), the court

observed at page 688:

“The Court has great sympathy with the plight

of an industry which, while endeavoring in good

faith to comply with water quality standards ap-

proved by the Secretary of the Interior under the

FWPCA, is subjected to criminal prosecution insti-

tuted by the Department of Justice under the

Rivers and Harbors Act.”

The court for the Northern District of Indiana in

United States v. United States Steel Corp., 328 F. Supp.

354 (N. D. Ind. 1970), at page 358 stated:

“The Court has considerable sympathy for de-

fendant’s position. The result is incongruous, and

perhaps unjust.” (Emphasis in original)

In its brief, the United States insinuates that

PICCO was convicted in the District Court because it

chose to “flout” the 1899 Act. A brief reflection demon-

strates the fatuity of this contention. Entities like

PICCO and the amici which have made substantial ex-

penditures for water pollution control equipment in

order to meet water quality standards and comply with

state permit requirements and which obtain per-

mits from the Corps of Engineers for construction in

“DL ate: rr eas ee

7

id

7

i.

8

44

Argument.

the navigable waters in connection with their many.

facturing establishments would hardly have failed to

obtain § 13 permits for industrial waste discharges like

those involved in the instant case had they been given

reasonable notice that such permits were required. A

reasonable man can only conclude that PICCO was pros-

ecuted and convicted before the District Court because

it was misled as to what was required of it.

This Court should recognize the anomaly in the in-

stant prosecution and apply well settled principles of

law to affirm the conclusion of the Court of Appeals

that prosecution in these circumstances denies due

process.

|

:

:

:

:

|

45

Argument.

IV. The Affirmance by This Court of the Lower Court

Holding Is Rendered Less Significant Generally by

the 1972 Amendments to the Water Quality Act.

As we noted in our brief opposing the grant of

certiorari in this case, the decision of the Court of Ap-

peals would appear to be literally applicable only to

discharges which took place prior to the institution of

a permit program by the Corps of Engineers on April

7, 1971. In its petition for certiorari, the United States

indicated that 115 criminal cases brought since 1970 re-

main pending; it does not indicate what fraction of

those are affected by the PICCO decision. We submit

that deep concern over the impact of the holding in this

case on other Government prosecutions of those in the

position of PICCO is neither justified, nor a proper judi-

cial consideration.

This is particularly so because of the fact that on

October 18, 1972 the Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C.A. § 1251 et seq.,

(the “Amendments”) became law. The Amendments

have a significant effect on § 13. For example, 33

US.C.A. § 1342(a) (5) provides that no permit shall be

issued under § 13 subsequent to October 18, 1972. It

further provides that each application for a permit un-

der § 13 pending on October 18, 1972 shall be deemed

to be an application for a permit under § 1342. Section

1342(a) (1) provides that the Administrator of the En-

vironmental Protection Agency may issue a permit for

the discharge of pollutants upon a finding that the dis-

charge will meet standards to be set pursuant to other

provisions of the Amendments. Finally, Section 1342 (k)

provides that:

Argument.

“Until December 31, 1974, in any case where 3

permit for discharge has been applied for pursuant

to this section but final administrative disposition

of such application has not been made, such dis-

charge shall not be a violation of (1) [the Amend.

ments]. . . or (2) [§ 13] . ., unless the Adminis

trator or other plaintiff proves that final adminis.

trative disposition of such application has not been

made because of the failure of the applicant to fur.

nish information reasonably required or requested

in order to process the. application.”

The Amendments make clear that the PICCO deci-

sion will neither affect present enforcement of the fed-

eral legislation designed to improve water quality nor

present enforcement of § 13. The United States con-

firmed this in its Memorandum opposing the grant of

the Petition for Certiorari in T. W. Guthrie v. Alabama

By-Products Co., No. 71-1672 in this Court, where it

argued that:

“The question whether riparian owners can sue

under Section 13 of the Refuse Act for damages

to their riparian interests is of limited importance

in view of the recent enactment of the Federal

Water Pollution Control Act Amendments of 1972.”

The lack of future significance of the PICCO decision

would be alone an appropriate reason for this Court to

dismiss the writ of certiorari as improvidently granted.

Moreover, the reconciliation of § 13 with the modern

water quality legislation in the 1972 Amendments is 80

similar to that reached by the Third Circuit Court of

Appeals as to confirm the correctness of its decision

without the need for extended analysis.

47

Conclusion.

CONCLUSION

The writ of. certiorari should be dismissed as im-

providently granted. In the event the Court elects to

reach the merits of this controversy, the decision of the

United States Court of Appeals for the Third Circuit

should be affirmed.

Davip MCNEIL OLps

JOHN MCN. CRAMER

REED SmiTrH SHaw & McCLay

Attorneys for Amici Curiae

United States Steel Corporation

Wheeling-Pittsburgh Steel Corp.

WILLIAM FOSTER

Senior Attorney General

United States Steel Corporation

XQ

Francis St. C. O’LEARY

General Counsel

Wheeling-Pittsburgh Steel Corporation

Or COUNSEL

March 12, 1973

Appendix “A.”

APPENDIX “A”

Section 6 of the Rivers and Harbors Act of 1890

provided:

That it shall not be lawful to cast, throw, empty,

or unlade, or cause, suffer, or procure to be cast,

thrown, emptied, or unladen, either from or out of

any ship, vessel, lighter, barge, boat, or other craft,

or from the shore, pier, wharf, furnace, manufac-

turing establishments, or mills of any kind what-

ever, any ballast, stone, slate, gravel, earth, rub-

bish, wreck, filth, slabs, edgings, sawdust, slag,

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

into any port, road, roadsted, harbor, haven, navi-

gable river, or navigable waters of the United

States which shall tend to impede or obstruct navi-

gation, or to deposit or place or cause, suffer, or

procure to be deposited or placed, any ballast, stone,

slate, gravel, earth, rubbish, wreck, filth, slabs,

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

ides, or by storms or floods, or otherwise, whereby

vigation shall or may be impeded or obstructed:

Provided, That nothing herein contained shall ex-

tend or be construed to extend to the casting out,

| unlading, or throwing out of any ship or vessel,

\ lighter, barge, boat, or other craft, any stones,

rocks, bricks, lime, or other materials used, or to

be used, on or toward the building, repairing or

keeping in repair any quay, pier, wharf, weir, bridge,

building, or other work lawfully erected or to be

49

Appendix “A.”

erected on the banks or sides of any port, harbor,

basin, channel, or navigable river, or to the casting

out, unlading, or depositing of any material exca-

vated for the improvement of navigable waters,

into such places and in such manner as may be

deemed by the United States officer supervising

said improvement mose judicious and practicable

and for the best interest of such improvements, or

to prevent the depositing of any substance above

mentioned under a permit from the Secretary of

War, which he is authorized to grant, in any place

designated by him where navigation will not be ob-

structed thereby.” 26 Stat. 426.

Section 6 of the Rivers and Harbors Act of 1894

provided :

“It shall not be lawful to place, discharge, or deposit,

by any process or in any manner, ballast, refuse,

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

acid, or any other matter of any kind other than

that flowing from streets, sewers and passing

therefrom in a liquid state, in the waters of any

harbor or river of the United States, for the im-

provement of which money has been appropriated

by Congress, elsewhere than in the limits defined

and permitted by the Secretary of War; neither

shall it be lawful for any person or persons to

move, destroy or injure in any manner whatever

any seawall, bulkhead, jutty, dike, levee, wharf,

pier, or other work built by the United States, in

whole or in part, for the preservation and improve-

ment of any of its navigable waters, or to prevent

floods, or as boundary marks, tide gauges, survey-

ing stations, buoys, or other established marks;

Appendiz “A.”

any and every such act is made a misdemeanor, and

every person knowingly engaged in, or who shall

knowingly aid, abet, authorize, or instigate a viola-

tion of this section shall, upon conviction, be pun-

ishable by fine or imprisonment, or both, such fine

to be not less than two hundred and fifty dollars

nor more than twenty-five hundred dollars, and

the imprisonment to be not less than thirty days

nor more than one year, either or both united, as

the judge before whom conviction is obtained shall

decide, one-half of said fine to be paid to the per-

son or persons giving information which shall lead

to the conviction of the misdemeanor.” 28 Stat. 363.

51

Appendix “B.”

APPENDIX “B”

The following relevant debate took place at 26

Cong. Rec. 4358 53rd Cong. 2d Sess. (1894) :

“Mr. Ray: I notice first that there are 50

pages of appropriations in this bill, and then there

are about 25 or 30 pages of general legislation on

this subject of navigation, etc., having nothing to...

do with the improvements provided for in the bill.

Now. I would like to know Why. . all this gen-

eral legislation on these subjects is put in an appro-

priation bill appropriating money for the improve-

ment of rivers and harbors?

“Mr. Grosvenor [A member of the Rivers and

Harbors Committee and floor manager of the ap-

propriations bill]: These items of general legisla-

tion have been suggested either by the Corps of

Engineers, or by bills introduced on this floor and

referred to the Committee on Rivers and Harbors.

Incidental to the appropriation certain other con-

siderations arise, and I may as well go directly to

one case which will illustrate the whole question.

The Chief of Engineers estimates a certain amount

of money as being required for the dredging of

New York harbor. In that same connection he in-

forms the Committee that the existing legislation

is inadequate to protect that harbor from the dump-

ing, in violation of existing law, of the refuse mat-

ter of the City of New York into the navigable

waters of the harbor. A very elaborate report was

presented to the Committee on that subject, and

it may be remembered that one Representative of

the City of New York attempted to ingraft this

Appendiz B.

same legislation upon another appropriation bill,

probably the sundry civil bill.

“The matter was pending and was incorporated

in this bill, and it is germane .. to the appropria-

tion for the dredging of New York harbor; for

surely it is as important to prevent the filling up

of a harbor by artificial means as it is to dredge

out of that harbor the materials which have been

deposited there, whether by artificial or by na-

tural causes.

“Mr. Ray: Then... the position of the Com-

mittee on Rivers and Harbors is that whatever

legislation [touches] rivers and harbors ... or any-

thing that has water in it or about it, is to be put

into the Appropriation Bill?

“Mr. Grosvenor: Not quite all of it.. We limit

ourselves in this way. We have nothing to do with

the light-houses or with any other matters that

comes under the jurisdiction of the Committee on

Commerce, but, so far as regards the protection of

the channels of navigation, and protection of the

shores from erosion and all matters of that kind,

our jurisdiction covers them, and certainly it covers

the questions of filling up of the navigable waters

by deposits made in harbors or in rivers, and of the

establishment of harbor lines, matters which relate

strictly to the improvement and maintenance of

navigation.

“Mr. Ray [Referring to the “general legisla-

tion” of the Appropriation Bill]: You have pro-

vided in this bill or have provided heretofore enact-

53

Appendia B.

ments which will prevent the discharges or deposit

of refuse matters in rivers and harbors where it

will obstruct navigation?

“Mr. Grosvenors Yes, sir.” (Emphasis added)