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

12 1973

NO. 72-624

— 11

In THE

‘Supreme Court of the United States

OCTOBER TERM, 1972

UNITED STATES OF AMERICA, PETITIONER

v.

PENNSYLVANIA INDUSTRIAL CHEMICAL

CORPORATION

On Writ of Certiorari To The United States Court of

Appeals For The Third Circuit.

BRIEF FOR AMICUS CURIAE

JONES & LAUGHLIN STEEL CORPORATION

Jupp N. POFFINBERGER, JR.

J. RICHARD LAUVER

KIRKPATRICK, LOCKHART,

JOHNSON & HUTCHISON

Attorneys for Amicus Curiae

1500 Oliver —

Pittsburgh, Pennsylvania 15222

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

INDEX

— PAGE

Interest of Amicus Curi ae. 1

Summary of Argumett᷑ẽ/ 2,3

Argument: tte cc ccc cece ceee 7

I. The Court of Appts Correctly Held That

the Discharge by PICCO of Industrial

Waste Into Navigable Waters Which Did

Not Interfere With Navigation Without a

Permit Under Section 13 of the Rivers and

Harbors Act of 1899 Did Not Constitute a

„ ae 4

II. The Court of Appeals Properly Held That

the Conviction of PICCO ended Due

Process Because of the Absence of an Es-

tablished Permit Program Under Section

13 of the Rivers and Harbors Act of 1899

by the United States. 21

Conclusion ........... 0... cece cece cece ee 36

CITATIONS

CASES

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264. 5, 6

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

46 — 65 23, 34

Federal Trade Comm'n v. Mandel Bros. Inc., 359 8

La Merced, 84 F. 2d 444 (9th Cir. 1986) .......... 6,7

Lanzetta v. New Jersey, 306 U.S. 411. 23

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

Supp. 161 (E.D. Pa. 1945), aff'd, 154 F. 2d 1020

(3d Cir. 1946ꝰꝛ⸗ũꝛ P 7

Nieroli v. Den Norske Afrika-Og Australielinie, 332

F. 2d 651 (2d Cir. 1964ꝗ·́ꝓrmmun 7

Index to Brief.

CASES PAGE

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

PPPPVVVPVGGCCCCCCc sabe aie 6, 7, U

United States v. Hercules, Inc., 335 F. Supp. 102 (D.

0 oa ees CEO eye Chee 6

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

o d sacs. os: 6

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

SS WUE — ³⁰ͤA AAA sa cceaees 5. 2

United States v. Moran, 113 F. 172 (S. D. N. T. 1901) 6

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

United States v. Republic Steel Corp., 155 F. Supp.

442 (N. D. Ill. 1957) F 8

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

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

Supp. 354 (N. D. Ind. 1970))))))0) 22, 29

— v. Universal C. I. T. Corp., 344 U.S. 5

Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 . . .13, 15

STATUTES

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

amended, 33 U.S.C. §441

Federal Water Pollution Control Act, June 30, 1948,

c. 758, 62 Stat. 1155, as amended, 33 U.S.C.

(1973 ed.) §§1251-1376 ....21, 24, 25, 26, 27, 28, 29

§24, 33 U.S.C. (1970 ed.) §1174

ili

Index to Brief.

PAGE

Federal Water Pollution Control Act Amendments

of 1956, July 9, 1956, c. 518, 70 Stat. 498..... 24

Federal Water Pollution Control Act Amendments

of 1961, July 20, 1961, 75 Stat. 204.......... 24

Federal Water Pollution Control Act Amendments

of 1972, October 18, 1972, 86 Stat. 816 ....... 26, 29

Rivers and Harbors Act of 1890, September 19,

1890, c. 907, 26 Stat. 426 ............ 13, 16, 17, 19

—T.!, ,, „„ 13, 15

Rivers and Harbors A 122 Act of 1894,

August 18, 1894, c 28 Stat. 363 . .15, 16, 17, 19

UVA AAA 15

Rivers and Harbors Act of 1899, March 3, 1899, c.

425, 30 Stat. 115ꝶdM22222——— . passim

§10, 33 U.S.C. 840ꝶ m3. ̃ 8, 9, 32

813, 33 U.S.C. 840-ꝶ“ lilli passim

814, 33 U.S. C. 840⸗ohů᷑ u ·˙U UU —ꝛ 27, 28

815, 33 U.S.C. 84ohooͤ“⸗ůũn n 27, 28

816, 33 U.S.C. 88411, 41ã2 . 27, 28

517, 33 U.S.C. 841gd9dd 27, 28

* Harbors Act of 1905, March 3, 33 Stat.

§ 4, 33 U.S. C. 8411ĩ71-;⸗-⸗yõ eee. 31

Water Quality Act of 1965, October 2, 1965, 79

U—AwVxB m 25, 27, 28

Water Quality rag“ paecaaae Act of 1970, April 3,

1970, 84 Stat. R1ůIi111 25, 26, 27

„ sah ei ce ane besaecessceens ind 28

REGULATIONS

18 C.F.R., Ch. V, Part 620. 11uo-⸗u⸗ꝶ u 25

33 CF. R., §209.200(e) (2ʒʒ ) cece cee 31

iv

Index to Brief.

MISCELLANEOUS

— PAGE

21 Op. Att’y. Gen. 305 (1896) .................. 17

32 Cong. Rec. 220000000 cece cece etc ceee 19

36 Fed. Reg. 680“(Uje . ccc cece 31

Executive Order 11574, 35 Fed. Reg. 19627 (De-

— I PED occ cc „ 30, 31

HR Doc. No. 417, 69th Cong., Ist Sess. ........... 10

HR Doc. No. 494, 72d Cong., 2d Sess. ............ 10

Justice Department Guidelines, BNA Environment

Reporter 288 (Current Developments 1970).. 32

United States Constitution, Fifth Amendment 23

INTEREST OF AMICUS CURIAE

The interest of Jones & Laughlin Steel Corporation

in this case derives from the pendency of criminal in-

formations charging twenty one counts of violating

Section 13 of the Rivers and Harbors Act of 1899, 33

US.C. § 407 (“Act of 1899”), brought against it by the

United States in an action similar to that brought

against the respondent, Pennsylvania Industrial Chem-

ical Corporation (“PICCO”). Jones & Laughlin Steel

Corporation is engaged in the manufacture of steel and

has plants in the City of Pittsburgh and at Aliquippa,

Beaver County, Pennsylvania. Each of the twenty one

counts is virtually identical and charges in essence

that Jones & Laughlin Steel Corporation unlawfully

discharged and deposited from its two manufacturing

establishments during the period from July 10,.1970 to

September 8, 1970 certain industrial wastes, including

iron, aluminum and compounds containing these chem-

icals and chlorides, phosphates and sulphates, into

navigable waters of the United States in violation of

Section 13 of the Act of 1899. Jones & Laughlin Steel

Corporation subsequently filed a Motion to Dismiss the

twenty one counts contained in the Informations. The

district court deferred disposition of the Motion to

Dismiss until the final resolution of the PICCO case

because of the similarity of the issues in the two cases.

Jones & Laughlin was granted permission to file a brief

a8 amicus curiae and to participate in the oral argu-

ments by the Court of Appeals below. The Solicitor

General and counsel for PICCO have granted Jones &

Laughlin Steel Corporation their consent to file this

brief as amicus curiae in support of the respondent.

Summary of Argument.

SUMMARY OF ARGUMENT

This Court has never considered in the context of

a criminal case whether Section 13 of the Rivers and

Harbors Act of 1899 reaches industrial wastes flowing

in a liquid state into the navigable waters of the United

States. The Pennsylvania Industrial Chemical Corpor.

ation, respondent here, was convicted for discharging

such industrial waste into the Monongahela River even

though the discharge had no adverse effect on the nav-

igability of the River. There are admittedly several

decisions of lower federal courts which support the

United States, but your Amicus hastens to add that

these cases have misinterpreted the opinions of this

Court relating to the discharge of industrial solids and

oils.

The legislative history of the Act of 1899 does not

support the expansive construction of the Act urged

by the United States. Otherwise, the United States has

most unjustly permitted the Act of 1899 to lay dormant

for over seventy years without sufficient notice to

PICCO or anyone else of its possible metamorphosis

into an ecology statute. Further, this Court has never

considered the relationship, if any, of the federal water

quality legislation to the Act of 1899. This relationship

must be crucial because the discharge of PICCO which

gave rise to its accusation under Section 13 of the

Act of 1899 at the same time, mirabile dictu, complied

with the federal water quality criteria.

Section 13 of the Act of 1899, together with certain

other sections relative to navigation, was saved from

repeal by the federal water quality legislation commen-

cing in 1948 because of the different purposes of the

3

Summary of Argument.

two acts. The fact that Section 13 of the Act of 1899

was saved from repeal in 1948 demonstrates how long

the United States refrained from seeking the attempted

judicial rewriting of the Act of 1899.

The decision by the Court of Appeals that PICCO

was denied a fair trial because of the lack of any permit

program pertinent to Section 13 of the Act of 1899 was

fundamentally sound. Without a permit program, the

Act of 1899 works an unconscionable hardship on

PICCO, whose discharges into the navigable waters

then met the existing federal water standards. By the

United States’ own admission, only five permits assert-

edly, but not proved, for industrial discharges have

been issued since 1899. The regulations in effect in and

immediately after the discharges by PICCO explicitly

stated that Section 13 permits would be issued only for

navigational obstructions. Thus, in the summer of 1970,

PICCO had no warning of its impending conviction,

much less of such possibility. PICCO’s conviction must

offend all concepts of fair play in this land.

Argument.

ARGUMENT

The Court of Appeals Correctly Held That the Dis-

charge by PICCO of Industrial Waste Into Navigable

Waters Which Did Not Interfere With Navigation With-

out a Permit Under Section 18 of the Rivers and Har-

bors Act of 1899 Did Not Constitute a Criminal Act.

This case basically involves the further effort of

the United States to resurrect a navigational statute of

the 19th century in the form of a present day ecology

statute. Throughout its brief, the United States, while

denying any feat of legerdemain for this remarkable

metamorphosis, points with obvious pride to its remark-

able successes in convincing the federal lower courts of

the transformation of the Act of 1899. The United States

justifies its use of the Act of 1899 as an ecology statute

on the grounds that Congress in 1899 mandated, and

early court of appeals decisions confirmed, such a result.

It decries the decision of the Court of Appeals below as

an attempt to rewrite legislation, when in actuality the

Government itself has been engaged in a classic example

of promoting judicial legislation under a guise of inter-

preting the Act of 1899.

Accordingly, your Amious respectfully suggest that

this Court examine the lower court decisions which

claim to draw their authority from United States v. Re-

public Steel Corp., 362 U.S. 482, and United States v.

Standard Oil Co., 384 U.S. 244. These decisions of the

lower courts have so misconstrued and expanded the

holdings of Republic Steel and Standard Oil that as a

result they bear little, if any, resemblance to their pur-

ported authorities. This Court has never decided whether

the Rivers and Harbors Act of 1899 prohibits the dis-

Argument.

charge into navigable waters of industrial waste where

the discharge does not affect or impede navigation ad-

versely. Yet virtually every reported case involving the

discharge of industrial waste presumes this issue is well

settled. For example, in the memorandum decision of

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

686 (D. Me. 1971), the district court, citing Republic

Steel and Standard Oil, stated that:

“It has long since been authoritatively settled that

the Act prohibits all discharges of polluting matter

(other than sewage) into navigable waters, regard-

less of its source or continuing nature and irrespec-

tive of its effect upon navigation.” Jd. at 688.

The cause of this fundamental error by the lower

courts can be best described by a precept recorded by

Mr. Chief Justice Marshall in Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, wherein he stated at pages 399-400:

“It is a maxim not to be disregarded, that general

impressions, in every opinion, are to be taken in

connection with the case in which those expressions

are used. If they go beyond the case, they may be

respected, but ought not to control the judgment in

a subsequent suit when the very point is presented

for decision. The reason of this maxim is obvious.

The question actually before the court is investi-

gated with care and considered in its full extent.

Other principles which may serve to illustrate it,

are considered in their relation to the case decided,

but their possible bearing on all other cases is sel-

dom completely investigated.”

The principle is clear; yet the lower courts, regardless of

the facts in controversy and the nature of the discharge,

Argument,

have routinely followed Standard Oil and Republic

Steel.1

Two of the most significant cases cited by the

United States in its brief are La Merced, 84 F. 2d 444 (9th

Cir. 1936) and United States v. Ballard Oil Co., 195 F.2d

369 (2d Cir. 1952). Prior to these two cases, the case law

under Section 13 was limited to factual situations which

were within the orginal intendment of the Act of 1899,

For example, in United States v. Moran, 113 F. 172 (SD,

N.Y. 1901), the defendant unlawfully dumped mud into

a navigable stream, an obvious obstruction to naviga-

tion. Commencing with La Merced, however, the Gov-

ernment charged that the discharge of oil constituted

refuse matter under Section 13. The same discharge, oil,

1. Compare United States v. Interlake Steel Corp,

297 F. Supp. 912 (N. D. III. 1969), with United States v.

Hercules, Inc., 335 F. Supp. 102 (D. Kan. 1971). The in-

formation in Interlake c ed the defendant with dis-

charging “iron particles and an oily substance into the

Little Calumet River” in violation of Section 13 of the

Act of 1899. The defendant did not challenge the Govern-

ment’s charge that iron particles and an oily substance

constituted refuse matter within the meaning of Section

13. Since the discharge of iron particles and oil sub-

stances has a direct tendency to obstruct or impede navi-

tion, Interlake is faithful to the holding in Republic

teel. On the other hand, the Hercules information al-

leged that the defendant discharged “a chemical com-

pound NH; (ammonia)” into a tributary of a navigable

river. Obviously, there was no allegation or proof that

the discharge of ammonia affected navigation because

it was discharged in a liquid state and would not settle

out. Nevertheless, the court held that the discharge vio-

lated Section 13 under the rationale of Standard Oil. It

is submitted that the Hercules court elevated Standard

Oil to a higher plane than permitted by Cohens v. Vir-

ginia.

Argument.

was also involved in Ballard. Although La Merced

seems to stand for the proposition that Section 13 re-

fuse matter need not obstruct or impede navigation, the

Ballard decision subsequently put to rest the thought

that oil was not a definite obstruction and impediment

to navigation. Moreover, from any reasonable point of

view, there is a vast factual and legal distinction be-

tween a discharge of raw gasoline or oil and the dis-

charge by PICCO of industrial waste in a liquid state.2

As suggested above, therefore, the Government’s

attempt to convict PICCO of a crime must stand or fall

in part on this Court's previous decisions in Standard

Oil and Republic Steel. Understandably, the United

States does not analyze these decisions as their precise

holdings relate to the factual and legal issues presented

in this case. It prefers to quote certain dicta that the

Rivers and Harbors Act of 1899 does not require “a

narrow, cramped reading“, but that it should be inter-

preted in light of the purpose to be served” ( App.

Brief, pp. 16-17). Notwithstanding these expansive

statements, the undeniable fact remains that the

Supreme Court of the United States has never ruled

on a conviction under Section 13 of the Rivers and Har-

bors Act of 1899 based upon the discharge of industrial

waste in a liquid state from a manufacturing establish-

2. The United States failed to cite Nicroli v. Den

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

1964), which refutes the broad construction of the Act

of 1899 advanced by the Government. Moreover, another

case cited by the United States, Maier v. Publicker Com-

mercial Alcohol Co., 62 F. Supp. 161 (E.D. Pa. 1945),

aff'd, 154 F.2d 1020 (3d Cir. 1946), supports the 9 1

view. The discharge there, grain residue, actually im-

peded navigation by filling in the channel.

Argument.

ment into the navigable waters which does not adversely

affect navigation.

Two matters must be readily apparent to this

Court. First, the United States seeks to present this

Court with a fait accompli, i.e., the substantial num.

ber of successful prosecutions in the recent years under

the Act of 1899 compels the conclusion that its inter-

pretation is correct (App. Brief. p. 18, fn. 16). Second-

ly, a number of original factual and legal issues are pre-

sented here which were not argued in Standard Oil and

Republic Steel, and the social and legal climate relative

to ecology and pollution has been vastly altered from

that existing in 1960.

What, then, has this Court held with respect to the

Rivers and Harbors Act of 1899. United States v. Re-

public Steel Corp., supra, was one for injunctive relief

against three defendants wherein the defendants were

charged with depositing industrial solids in the Calumet

River, and the Government asked that they be enjoined

from doing so and further be ordered to dredge the

River to a certain depth under Sections 10 and 13 of the

Rivers and Harbors Act of 1899.3 The precise nature

of the refuse matter there in controversy is extremely

important here as a matter of precedential value. The

refuse matter included iron oxide, metallic iron, slag,

calcined limestone and graphite and was described by

the lower court in 155 F. Supp. at page 450 as follows:

“33 .. . Samples taken by both the Corps of Engi-

neers and the defendants showed that solids are

3. Section 10 (33 U.S.C. §403) prohibits generally

the creation of any unauthorized obstructions to the

navigable capacity of the waters of the United States.

9

Argument.

being deposited into the river from all sewers of

the defendants. These solids are in excess of those

being transported in the water at the time it is

being pumped out of the river by the defendants.

The solids being deposited in the Calumet River

from the sewers of the defendants are being trans-

ported by suspension in the water and are not in

solution or in a liquid state.”

Thus the defendants were discharging solids into the

River which directly obstructed navigation. The Court

noted that the solids flocculated into larger units and

were deposited on the River bottom. In fact, this shoal-

ing reduced the depth of the River by as much as 9 feet

(362 U.S. at 484).

On appeal, five members of this Court held that the

deposit of the above-described industrial solids created

an obstruction to the navigable capacity of the Calumet

River in violation of Section 10, not Section 13, of the

Act of 1899. The Court then held that the industrial

discharges were not within the exception clause in Sec-

tion 13 relating to refuse matter flowing from streets

and sewers and passing therefrom in a liquid state. The

Court did not decide that the industrial solids consti-

tuted refuse matter under Section 13 because the dis-

trict court granted relief under Section 10 of the Act of

1899. Although it may be argued that a holding that

the industrial solids were not within the streets and

sewers exception to Section 13 is tantamount to a find-

ing that the industrial solids constituted refuse matter,

it cannot be called a definitive holding that.all indus-

trial wastes, whether solid or liquid, are refuse matter

within the definition of Section 13.

10

Argument.

The limited scope of Republic Steel’s holding with

respect to Section 13 is readily discernible. A careful

reading reveals three inherent limitations which sub-

stantially weakens its universal application in indus-

trial waste cases. First, as pointed out above, the thrust

of the Court’s decision was to limit the streets and

sewers exception rather than broadening the definition

of refuse matter. Second, the industrial solids settled

out in the river bed and directly obstructed navigation.“

Third, the Court placed great importance on the admin-

istrative construction of the Act of 1899 by the Corps

of Engineers as it related to the deposit of industrial

solids in the Calumet River. The evidence showed that

as early as 1909 the Corps of Engineers warned a steel

company of the danger of accumulating industrial

solids in the Calumet River. The District Engineer on

at least 7 occasions required the solids to be removed

from the River. An Act of Congress was even passed

in 1935 in order to improve that River, and the accom-

panying House Report assumed that certain shoals

would be removed by the steel company to the depth of

21 feet.5 This history of shoaling in the Calumet River

led the Court to conclude at page 490 that any doubts

about the interpretation of the streets and sewers ex-

ception should be “resolved by a consistent administra-

tive construction which refused to give immunity to in-

dustrial wastes resulting in the deposit of solids in the

4. That the Court was chiefly concerned with the

navigational 1 effect of the discharge is evi-

dent from the citation in footnote 6 at 362 U.S. 491 to

HR Doc. No. 417, 69th Cong., 1st Sess., p. 9 dealing with

shoaling.

5. HR Doc. No. 494, 72d Cong., 2d Sess.

11

Argument.

very river in question”.6 Taken together, Republic

Steel fails to support the ever expanding reach of Sec-

tion 13 by the lower courts.

Six years later the Court decided United States v.

Standard Oil Co., supra. The narrow issue there was

defined by Mr. Justice Douglas as whether Section 13

refuse matter included the discharge of commercially

valuable aviation gasoline in the navigable waters.

The one count indictment charged that the defend-

ant unlawfully discharged 100-octane aviation gasoline

into the St. Johns River in violation of Section 13. The

district court dismissed the indictment on the sole

grounds that the Section 13 definition of refuse matter

did not include commercially valuable oil. The district

court distinguished between waste oil and commercially

valuable gasoline, and held that the latter was not re-

fuse matter. On this very narrow issue, the Court re-

fused to accept this distinction and said at page 226

that:

“Oil is oil and whether usable or not by industrial

standards it has the same deleterious effect on

waterways. In either case, its presence in our rivers

and harbors is both a menace to navigation and a

pollutant.” (Emphasis added.)

Citing Ballard, supra, the Court continued at page 229:

“The word ‘refuse’ in that setting... ‘is satisfied by

anything which had become waste, however useful

it may earlier have been’. There is nothing more

6. See Federal Trade Comm’n v. Mandel Bros. Inc.,

359 U.S. 385. By the same rule, the long settled practice

by the Corps of Engineers in limiting permits under Sec-

tion 13 to navigational obstructions should likewise be

entitled to great weight in construing Section 13.

Argument.

deserving of the label ‘refuse’ than oil spilled into

a river.”

“That seems to us to be the common sense of the

matter.”

The holding in Standard Oil is therefore limited to the

discharge of commercially valuable aviation gasoline

into a navigable river.

By ignoring the narrow factual situation presented

to the Court, the United States seizes upon Mr. Justice

Douglas’ statement that the word “refuse” in Section

13 includes pollutants. Yet Mr. Justice Douglas also

stated that oil “was both a menace to navigation and a

pollutant”, thereby indicating his concern for at least

some navigational nexus. That this was Mr. Justice

Douglas’ intention is supported by his later statement

that damage to waterways was “caused in part by

obstacles which impeded navigation and in part by

pollution” (384 U.S. 266).7 Thus, in this context, the

phase “and a pollutant” could easily be dropped from

the holding without limiting its effect. In any event, this

construction is equally as sound as that of the United

States in the absence of any subsequent decisions by the

Court on this point.

The nature of the industrial waste becomes exceed-

ingly crucial when the legislative history of Section 13 is

considered. The Amicus strongly disagrees with the

statement in United States’ brief (p. 15) that Section 13

was a codification and consolidation of earlier criminal

laws designed to prohibit the discharge of matters that

7. As in Republic Steel, the Court again stresses

the importance of the administrative construction of

Section 13 by the Corps of Engineers. 384 U.S. at 226.

13

Argument.

cause pollution as well as to matters that obstruct

navigation. To the contrary, it is respectfully submitted

that any attempt to include matters that only “pollute”

suggests the same kind of judicial legislation which the

Government abhors in its brief.

Congress, on March 3, 1899, enacted the Rivers and

Harbors Act as a codification of existing laws relating

to navigable waters. Section 13 of that Act is set forth

at pages 2 and 3 of United States’ brief and has survived

intact to this day. We agree with Mr. Justice Douglas,

who stated in Sandard Oil that “the meaning we must

give the term ‘refuse’ must reflect the present codifica-

tion’s statutory antecedents”. On the other hand, the

term must be limited and confined to the perimeters of

the earlier statutes.

These statutory antecedents were born out of con-

gressional reaction to the Supreme Court's decision in

Willamette Iron Bridge Co. v. Hatch, 125 US. 1. In

Williamette, the Court held that there was no common

law of the United States which prohibited obstructions

in navigable waters. A bill (known as the Dolph Bill)

was promptly introducéd in Congress to nullify the

Willamette decision. The Dolph Bill was subsequently

attached (in conference) to the Rivers and Harbors Act

of 1890, 26 Stat. 426. Section 6 of the Rivers and Harbors

Act of 1890 provided as follows:

“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-

14

Argument.

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

wreck, filth, slabs, edgings, sawdust, slag, cinders,

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

port, road, roadsted, 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, 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 tides, or by storms or

floods, or otherwise, whereby navigation shall or

may be impeded or obstructed: Provided, That

nothing herein contained shall extend or be con-

strued 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, in or toward

the building, repairing or keeping in repair any

quay, pier, wharf, weir, bridge, building, or other

work lawfully erected or to be 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 excavated for the im-

provement of navigable waters, into such places and

in such manner as may be deemed by the United

States officer supervising said improvement most

judicious and practicable and for the best interests

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

15

Argument.

to grant, in any place designated by him where

navigation will not be obstructed thereby.” (Em-

phasis added.)

It is quite easy to spot the similarities between this Sec-

tion and Section 13 of the Act of 1899, and it is immedi-

ately obvious that Section 6 of the Act of 1890 was

aimed squarely at matters which “tend to impede or

obstruct navigation”. This should not be surprising in-

asmuch as Willamette involved the construction of a

bridge across the Willamette River. In so limiting the

Act of 1890, Congress was following proper legislative

procedure in considering the occasion and necessity for

the law and the mischief to be remedied.

Four years later, Congress enacted the Rivers and

Harbors Appropriation Act of 1894, 28 Stat. 363. The

Act of 1894 was directed at prohibiting deposits and

obstructions in harbors and rivers for which Congress

had appropriated money for improvements. Section 6 of

this Act provided in pertinent part that:

“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 there-

from in a liquid state, in the waters of any harbor

or river of the United States, for the improvement

of which money has been appropriated by Congress,

elsewhere than in the limits defined and permitted

by the Secretary of War. Emphasis added. )

An examination of the matter enumerated reveals an

overriding concern for solid matter which would settle

out and impede or obstruct navigation. It would appear

16

Argument.

that the addition of the catchall phrase of “any other

matter of any kind” was only included out of an abun-

dance of caution. Certainly the list of prohibited matter

was not included as an all-inclusive list of solid matter

which could not be deposited in navigable waters. For

instance, it omitted solids like coal and gravel which

would likely be deposited in navigable waters. Acid, of

course, due to its highly corrosive nature, offered a

special hazard to the use of rivers and harbors by

vessels. Notwithstanding the changes in textual content,

there is nothing to indicate by an examination of the

1894 Act that it was intended to broaden the general

navigational scope of the 1890 Act.

Indeed, this conclusion was shared in 1896 by the

then Attorney General of the United States. Shortly

after the 1894 Act was enacted, a question arose whether

certain mining and ore-washing industries were per-

mitted to discharge ore washings into the New River

in Virginia. The Attorney General’s opinion was then

requested whether the Secretary of War was to con-

sider only the interests of navigation as opposed to a

consideration of the matter of the discharge injuriously

affecting the fish and the water of the stream and the

scenery along the same”. His answer under the 1894

Act was “no” because:

“You should, therefore, be governed only by con-

siderations 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 have presumed to have in mind in authorizing

the frequent and large expenditures which have

— —

17

Argument.

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

Att' y. Gen. 305, 308 (1896).

This Opinion is clear evidence of the intent of Congress

in adopting the 1894 Act, especially since it was written

contemporaneously therewith. Thus, if both the 1890

Act and the 1894 Act were navigation acts, and since

both acts formed the Rivers and Harbors Act of 1899,

it seems unduly harsh to argue that the Rivers and

Harbors Act of 1899 was intended to impose criminal

sanctions for discharging matter which does not impede

or obstruct navigation.

One other act relating to the New York harbors

should also be mentioned, although the codification of

the Rivers and Harbors Act of 1899 did not include such

act. Section 1 of the Act of June 29, 1888, 25 Stat. 209,

33 U.S.C. §441, prohibits the following acts:

“The placing, discharging, or depositing by any

process or in any manner, of 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 tidal waters of the harbor of

New York, or its adjacent or tributary waters, or

in those of Long Island Sound, within the limits

which shall be prescribed by the supervisor of the

harbor, is hereby strictly forbidden, and every such

act is made a misdemeanor.”

The 1888 Act can be most helpful in construing the

Act of 1894 quoted above because it prohibited the de-

posit of refuse or any other matter of any kind, words

identical to those found in the Act of 1894 (the immedi-

ate predecessor to the Rivers and Harbors Act of 1899).

Therefore, it cannot be argued that “other matter of any

18

Argument.

kind” includes all liquid matter of any kind without re.

gard for its prospensity to affect navigation because the

Act of 1888 was entitled “An act to prevent obstructive

and injurious deposits within the harbor and adjacent

waters of New York City”.

If the Act of 1888 must be read in such a way as to

give full meaning to this phrase, without extending it

to encompass nonobstructing navigational impediments,

the Rivers and Harbors Act of 1899 should also be so

read and construed. Moreover, it has been adjudicated

that the Act of 1888 did not apply to discharges which

do not obstruct or injuriously affect navigation. In

Warner-Quinlan Co. v. United States, 273 F. 503, 505

(3d Cir. 1921), it was held that: .

The statute enumerates the specific materials

which, in the opinion of Congress, would ordinarily

be deposited into the waters and would obstruct

and injure the harbor, but made sure that it should

not be obstructed or injured because of the failure

to mention all the materials that might possibly be

placed or deposited in the prescribed limits, and so

Congress added the words, ‘or any other matter of

any kind.’ This means, applying the maxim of

ejusdem generis, matter of the same general class

as before mentioned. The materials mentioned, ex-

cept acid, are mostly solids, and the injury which

they would do the harbor would be to obstruct it.”8

8. The Court in Standard Oil also considered the

rule of ejusdem generis when it held that the enum-

erated matter in on 13 included those with a

discharge value such as oil, and therefore to

limit Section 13 to matters without a pre-discharge

value. This again points up that the Court’s primary

concern was oil and not other industrial wastes.

19

Argument.

The Acts of 1890 and 1894 (and indirectly the

Act of 1888) formed the antecedent statutes to the

Rivers and Harbors Act. The Chairman of the Senate

Commerce Committee, Senator Frye, confirmed on the

floor that the Act of 1899 was only a compilation and

revision of existing general laws relating to navigable

waters and that it would have no new substantive effect.

In response to a question by Senator Chandler whether

the Act made any changes in the existing law, Senator

Frye replied that “there are not ten words changed in

the entire thirteen sections”. 32 Cong. Rec. 2296. Try

as one will to read the Rivers and Harbors Act of 1899

broadly, its legislative history does not support a con-

struction which extends it to industrial wastes such as

discharged by PICCO.

In summary, this Court has decided that the defini-

tion of refuse matter in Section 13 encompasses in-

dustrial solids and oil. Both industrial solids and oil

have an adverse effect on the navigability of our water-

ways, and therefore the decisions in Republic Steel and

Standard Oil are supported by a strict reading of Sec-

tion 13 and the underlying Congressional intent. The

case below does not fall within the holding of either case

because the discharges by PICCO have absolutely no

effect on navigation. The Court can affirm the decision

of the Court of Appeals without over-ruling its earlier

decisions, and thereby can bring to a halt the dangerous

alteration of an old piece of criminal legislation in an

effort to make it fit modern day conditions, There are

now proper statutory remedies available to the Govern-

ment to safeguard our environment. Such a decision

would be entirely consistent with its prior holdings and

with the legislative history of Section 13. The post

20

Argument.

Standard Oil cases have misread the Court’s expressed

concern for our waterways as a judicial fiat to

American industry to task for the accumulated neglect

of many persons, including the United States Govern.

ment itself, without regard to constitutional fair play

and due process. These decisions, albeit well-intentioned,

simply cannot be reconciled with a fair reading by any

reasonable person in the summer of 1970 of Standard

Oil, Republic Steel, Section 13 and its legislative history,

or the existing Governmental Regulations and practices,

These very thoughts were expressed by the Court in

Standard Oil at page 225:

“The crisis that we face in this respect [pollution]

would not, of course, warrant us in manuf,

offenses where Congress has not acted nor in

stretching statutory language in a criminal field to

meet strange conditions.”

21

Argument.

THE COURT OF APPEALS PROPERLY HELD THAT THE

CONVICTION OF Picco OFFENDED DUE PrRocEss BE-

CAUSE OF THE ABSENCE OF AN ESTABLISHED PERMIT

PROGRAM UNDER SECTION 13 OF THE RIVERS AND

Harsors Acr OF 1899 BY THE UNITED STATES.

In reversing the judgment of conviction of PICCO

by the district court, the Court of Appeals below held

that PICCO was convicted of a crime which did not

exist, and that in any event the conviction violated due

process. Even a cursory review of its opinion reveals the

fact that the Court of Appeals was shocked, to say the

least, by the Government’s position. The Court of Ap-

~peals did not act unreasonably in reversing PICCO’s

conviction. In its opinion, it resolved all doubts concern-

ing the navigational and streets and sewage cxception

issues in favor of the United States and against PICCO.

Mindful of the Court’s admonition in Standard Oil that

Section 13 cannot be construed in a vacuum (384 U.S.

at 225-26), the Court of Appeals could not ignore the re-

cent events surrounding the rediscovery of Section 13

and the institution of a permit program. These events,

coupled with the interplay of the Federal Water Pollu-

tion Control Act, 62 Stat. 1155, as amended, 33 U.S.C.

(1973 ed.) §§1251-1376, (“FWPCA”) created a set of

circumstances that the Court of Appeals concluded “may

well have been unfair to the point that PICCO’s con-

viction violated due process” (Def. App. A., p. 24a).

Rather than stand Section 13 on its head, as the United

States suggests, the Court of Appeals acted in the high-

est tradition of judicial integrity by upholding the con-

cept of fair play in the administration of criminal stat-

utes.

Argument.

The Court of Appeals was not the first court to be

alarmed at the harshness of the Government’s position

vis-a-vis Section 13 of the Rivers and Harbors Act of

1899. In United States v. United States Steel Corp., 328

F. Supp. 354 (N. D. Ind. 1970), the court stated at page

358:

“Defendant stresses the incongruity and unfairness

of a regulatory scheme that provides for specific

water quality standards, and yet permits the crim-

inal prosecution of companies that spent millions of

dollars in complying. The Court has considerable

sympathy for defendant’s position. The result is in-

congruous, and perhaps injust.”

The district court in United States v. Maplewood Poultry

Co., supra, likewise expressed sympathy with the plight

of industry caused by the Government’s use of Section

13 as water quality legislation.®

9. In United States v. Hercules, Inc., 335 F. Supp.

102 (D. Kan. 1971), the court ameliorated the gross in

justice of a Section 13 conviction by dismissing nine of

ten counts on the grounds that a continuing industrial

could not result in a separate count for each

day of the discharge. Instead the court held at page 107

that the discharge was “precipitated by one impulse and

with singleness of purpose”. Although the district

~ court’s rationale was different from that of the Court of

Appeals below, both courts shared a common adverse

reaction to the Government’s position. The district court

found support in the Court’s opinion in United States v.

Universal C. I. T. Corp., 344 U.S. 218, 2222

[When choice has to be made between two readings

of what conduct Congress has made a crime, it is

appropriate, before we choose the harsher alterna-

tive, to require that Congress should have spoken

in language that is clear and definite.”

23

Argument.

The Court of Appeals was quick to see that PICCO’s

conviction under Section 13 did not make sense in light

of existing water pollution statutes. It made even less

sense when the non-existence of a permit program under

Section 13 was considered, an issue that was not present

in either Standard Oil or Republic Steel. The Court of

Appeals therefore applied the traditional rules of due

process and fair play to the relevant facts and laws as

they existed in the summer of 1970 at the time of the

discharges by PICCO.

The due process clause of the Fifth Amendment of

the United States Constitution serves an important con-

temporary function in requiring that a statute convey a

minimum warning of its impact and scope to men of

reasonable intelligence so that one need not necessarily

act at his own peril to know whether he is obeying the

law or not obeying the law. See Connally v. General Con-

struction Co., 269 U.S. 385 and Lanzetta v. New Jersey,

306 U.S. 451. In part, this is an extension of the tradi-

tional canon that all penal statutes must be narrowly

and strictly construed as eloquently expressed by Mr.

Chief Justice Marshall in United States v. eee 18

US. (5 Wheat.) 76 at page 95:

“The rule that penal laws are to be construed strict-

ly is perhaps not much less old than construction it-

self. It is founded on the tenderness of the law for

the rights of individuals; and on the plain principle

that the power of punishment is vested in the legis-

lative and not the judicial department. It is the leg-

Argument.

.

islature, not the court, which is to define elle

and ordain its punishment.“ 10

The Rivers and Harbors Act of 1899 did not exist

alone in the field of water legislation. Congress, mindful

of the limited purpose of the Act of 1899 as contrasted

with a program directed toward reducing stream pollu-

tion of all sorts, adopted in 1948 the FW CA in an ef.

fort to meet the growing concern over the quality ot

our nation's waterways. This 1948 Act contained no ex-

press standards of water pollution, but it was the first

act to recognize the absence of such standards in exist-

ing legislation. The 1948 Act preserved Section 13, to-

gether with several other sections, of the Rivers and

Harbors Act of 1899 from any effect of impairment by

the 1948 Act. In 1956, Congress amended the 1948 Act

by adopting the Federal Water Pollution Control Act

Amendments of 1956, 70 Stat. 498. The chief contribu-

tion of the 1956 Amendments was to place primary re-

sponsibility for the abatement of pollution of interstate

or navigable waters on the several states. The 1948 Act

was further amended by the Federal Water Pollution

Control Act Amendments of 1961, 75 Stat. 204. These

amendments were procedural in that they transferred

the administration of the Act from the Surgeon General

of the Public Health Service to the Secretary of Health,

Education and Welfare.

10. In his dissenting opinion in Standard Oil, Mr.

Justice Harlan remarked that the rule of strict construc-

tion was not compelling in that case because the maxi-

mum dard &II Compan ty which could have been imposed upon Stan-

pany was $2,500. In contrast, the maximum

penalty which could be imposed on the Amicus is $52,500,

ardly an insignificant sum.

—

25

* i Argument.

In 1965, a rather comprehensive set of amendments

entitled the Water Quality Act of 1965, 79 Stat. 903, was

adopted. The intent of Congress in enacting the Water

Quality Act of 1965 included the desire to “enhance the

quality and value of our water resources and to establish

a national policy for the prevention, control, and abate-

ment of water pollution”. Congress provided for the es-

tablishment of definite water quality standards, and ac-

cepted, within limits, water quality criteria adopted by

the states, as water quality standards under the FWPCA.

Absent standards or inadequate standards in any state,

the Secretary of the Department of the Interior was em-

powered to adopt standards appropriate to serve that

state. The criteria of water quality to be met by stand-

ards to be adopted by any state included generally pub-

lic health and welfare, enhancement of the quality of

water and serving the overall purposes of the FWPCA.

The Pennsylvania water quality standards for the Mon-

ongahela River were accepted by the Federal Govern-

ment as the federal water quality standards under the

FWPCA. 11 The Water Quality Act of 1965 further auth-

orized the Attorney General to bring a suit on behalf of

the United States to secure abatement of discharges

which do not comply with the applicable water stan-

dards after due notice and hearing. The Water Quality

Act of 1965 was enacted on October 2, 1965, and Stan-

dard Oil was argued on January 25, 1966. Thus, prior to

this case, the conflict between the Act of 1899 and the

FWPCA has never been fully briefed and argued before

the Court.

Congress enacted another set of amendments to the

FWPCA by the Water Quality Improvement Act of 1970,

— —

ll. 18 C. F. R., Ch. V, Part 620.10.

26

Argument.

84 Stat. 91, which dealt in large part with oil pollution.

The 1970 Amendments, for the first time, declared an

express legislative policy of the United States that there

should be no discharge of oil into or upon the navigable

waters of the United States.

When one views the FWPCA from its enactment in.

1948 through the 1970 amendments, one realizes the

comprehensive program of water pollution control which

now exists. 12 Congress has now said that every person

and corporation shall be responsible for the quality of

the nation’s water, subject to specific water quality stan-

dards and criteria adopted by the individual states. A

serious problem, however, arises when any attempt is

made to compromise the FWPCA program to the pur-

poses of the Rivers and Harbors Act of 1899. The Court

of Appeals stated the problem in this fashion:

“There would appear to be something fundamentally

inconsistent between the program of developing and

enforcing water quality standards under the Water

Quality Act and Section 407 of the Rivers and Har-

bors Act, if the effect of the latter is to prohibit all

discharges of industrial waste into navigable

waters.” (Def. App. A, p. 10a).

The manifest conflict appeared in this case because at

trial PICCO was prevented from proving that its dis-

charges into the Monongahela River met the FWPCA

12. The most recent amendments to the FWPCA,

the Federal Water Pollution Control Act Amendments

of 1972, 86 Stat. 816, confirm this argument. Although

Section 4(a) of the 1972 Amendment saves *

actions under Section 13 from abatement, the

ment will have a profound effect in improving the overall

program of water quality.

27

Argument.

standards as embodied in the water quality criteria

adopted by the Commonwealth of Pennsylvania. Yet

PICCO was convicted of violating the Act of 1899 when

it discharged the same industrial waste. This conflict is

real, not imaginary, and placed PICCO in an untenable

position.

The United States denies that there is a conflict be-

tween the Acts for two reasons. First, it points to the

saving clause in Section 24 of the FWPCA, as amended

in 1970, 33 U.S.C. (1970 ed.) §1174, a wornout and

wooden argument. It then refers to the permit provisions

| in Section 13.

Section 24 of the FWPCA as amended through 1970

saves the provisions of Sections 13, 14, 15, 16 and 17 of

the Act of 1899. The United States suggests that the

saving clause in Section 24 was added to the FWPCA as

part of the Water Quality Act of 1965 because the

FWPCA represents “only a partial response to the eco-

logy problem”. This argument ignores that the fact that

the saving clause was part of the original enactment of

the FWPCA in 1948. Furthermore, the United States

concedes, as it must, that it first commenced a major

enforcement program against discharges into navigable

waters as are here involved in late 1969 and early

1970, more than 20 years after the saving clause was

added. Although it is quite imaginative for the United

States to argue the existence of extraordinary insight

in Congress by enacting the Act of 1899, it is rather

illogical for the United States to acknowledge that the

will of Congress lay undiscovered for seventy years. The

United States’ argument suggests that some Rosetta

Stone was found in 1969 which unraveled certain hiero-

28

Argument.

glyphics written by Congress in 1899. Such an argument

is patently absurd.

Congress had no thought in 1948 that Section 11

would be applied indiscriminately between navigation

cases and ecological cases. It did not even have the bene-

fit of the Court’s interpretation of Section 13 in Standard

Oil and Republic Steel. Apparently, it has never occur

red to the United States that Congress intended that

these sections of the Rivers and Harbors Act of 1899

should remain intact for purposes other than prohibiting

discharges of matter which do not affect navigation.

Congress obviously intended that Sections 13, 14 and 18

should stand unimpaired because they reached matters

not within the purview of the FWPCA. The dumping of

quantities of solid matter into navigable rivers is pos-

sibly a pollution problem, but more probably a naviga-

tional problem. Likewise, Section 14 is a navigational .

section as is Section 15, dealing with obstructions of

navigable waters by vessels, floating timber and sunken

vessels.13

The continued exception of the saving clause in the

1965 and 1970 Amendments to the FWPCA meant only

that Congress did not intend to repeal a navigation

statute that was never intended to cover the industrial

discharges here involved, not that Congress intended

that both statutes should regulate water quality. In

fact, by the exception, Congress pointed out the differ-

ence between these two important statutes, one being a

pollution statute and the other a navigation statute.

There is no evidence whatsoever that Congress agreed

13. Sections 16 and 17, 33 U.S.C. §§411-413 are en-

forcement provisions.

29

Argument.

with the absurd interpretation of Section 13 by the lower

courts.14

The Government’s second argument relates to the

permit provisions of Section 13. Although the Court of

Appeals found that the permit provision of the Act of

1899 brought Section 13 of that Act into reconciliation

with the FWPCA, it utterly rejected the Government’s

contention that the non-existence of a permit program

in the summer of 1970 was immaterial to the offense

charged. The permit provision of Section 13 authorizes

the Chief of Engineers to issue permits for the deposit

of refuse matter into navigable waters whenever in his

judgment anchorage and navigation will not be injured. >

The United States contends that there is no conflict be-

tween the FWPCA and the Rivers and Harbors Act of

1899 because a person may be exonerated from any

criminal charges under the Rivers and Harbors Act if

he obtains a permit to discharge matter which is, sub-

sequent to December, 1970, in compliance with the

FWPCA.15

14. The broad rewriting of the FWPCA in 1972

strongly confirms the argument that Congress did not

agree that Section 13 was enacted to regulate water

pollution. ;

15. At least one district court has construed the

permit 3 of Section 13. In United States v.

United States Steel Corp., 328 F. * 354 (N. D. Ind.

1970), the defendant was charged with 1 a

red-brown sediment and an oily substance. The ct,

court at page 357 offered this bit of circuitous reason-

“Moreover, if only deposits forbidden by the Act

were those which obstruct navigation, the final

Argument..

We believe that the Court will take judicial notice

of the absence of a permit program under Section 13

prior to December 25, 1970. Om that date, President

Nixon announced Executive Order No. 11574. 35 Fed.

Register 19627. This Executive Order stated that a

permit program would be initiatted under Section 13 of

the Act of 1899 and that such permits would be issued

upon compliance with applicable Federal water quality

standards. In April of 1971, the Corps of Engineers an-

nounced the adoption of regulations governing the is-

proviso [of Section 13] woulld make no sense. Under

that proviso, the Secretary of the Army can permit

otherwise ill deposits if the Chief of

— — cig Parc roe rates ů 1

t's on were correct,

JF

necessary — since non-obstructing deposits were

never forbidden in the first place — or unobtainable

— since the Secretary has no power to permit

deposits that obstruct navigation. The — ta

makes sense only if the Act forbids d ts that

pollute, as well as those which directly affect

navigability.”

This rationale of the court proves entirely too much and

is internally inconsistent. e, Congress did not intend

that the Act of 1899 should apply to matters which had

ne ee ee on ee

was not necessary to obtain a permit from Secretary

Ec

is not to say, however, that permits would be unobtain-

able in every case where the discharge had navigational

impairment capability. The proviso ＋ states that

the Chief of Engineers, in the exercise of his judgment,

— permit certain discharges or deposits of matter

which will not injure anchorage and navigation under

the given circumstances, irrespective of the nature of

the discharge.

31

Argument.

suance of permits under Section 13 in compliance with

Executive Order No. 11574. 36 Fed. Register 6564.16

Although the United States concedes in its brief

(p. 30) that there was no established permit program

under Section 13, it argues that an informal permit pro-

gram existed. As proof of this informal program, the

United States reveals, for the first time in this case,

that five permits for the discharge, in its judgment, of

so-called industrial waste have been issued by the Corps

of Engineers since 1899, at least one of which was ac-

16. At the time of the acts charged against PICCO

in the summer of 1970, the Corps of Engineers, the

agency with the administration and enforce-

ment of the Rivers and Harbors Act of 1899, had

lished the following Regulation in the Code of

Regulations:

“Seetion 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 verge in = =e waters, 8 in —

judgment o e Engineers anchorage

navigation will not be injured thereby, within limits

to be defined and under conditions to be prescribed

by him. Although the Department has exercised

this authority from time to time it is considered

— 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 En-

gineers in determining the effect on ae of

vessels, the views of the U.S. Coast Guard be

solicited by coordination with the Commander of

5 1 Guard District.” 33 C. F. R. 5209. 200

e ;

This administrative construction is entitled to great

weight in 6 Section 13. United States v. Re-

public Steel Corp., 362 U.S. at 491.

32

Argument.

tually a Section 10 permit (App. Brief, p. 28, fm. 90),

It is ridiculous that this case, one of such magniteds

and great consequence to others, should come to rest

on such a slender reed. There is absolutely no foundatics

in law for a presumption that PICCO should have bes

aware in the summer of 1970 of an “informal permit

program” which resulted in the issuance of one permit

once every eighteen years. Nor is there any basis for

charging PICCO with knowledge of the great flurry of

press releases and memoranda announcing intentions

that pollution and conservation factors would be con-

sidered in passing on Section 13 permits under a pro-

gram which didn’t exist. PICCO was charged with

knowledge of those Corps of Engineers’ regulations

which were duly published in the Federal Register, and

not with ill-defined ideas still gestating within the Corps.

The published regulations clearly stated that permits

would only be issued for navigational obstructions and

impediments.

It is indisputably clear that a Section 13 permit

program for the industrial discharges here involved was

non-existent prior to December, 1970. It is an interesting

event to see the United States charge of its citizens with

an offense which remained unknown, much less de

scribed, until after the offense occurred. The least one

can expect is that the Government will not intentionally

confuse persons with conflicting rules. PICCO was con-

victed for discharges which occurred on August 7 and

19, 1970. On June 13, 1970, the Justice Department

transmitted Guidelines for Litigation under the Refuse

Act to United States Attorneys on June 13, 1970. Those

Guidelines, as reported in BNA Environment Reporter

on July 17, 1970 at page 288, are as follows:

Argument.

“1. The policy of the Department of Justice with

respect to the enforcement of the Refuse Act for

purposes other than the protection of the navigable

capacity of our national waters, is not to attempt

to use it as a pollution abatement statute in com-

petition with the Federal Water Pollution Control

Act or with State pollution abatement procedures,

but rather to use it to supplement that Act by bring-

ing appropriate actions either to punish the oc-

casional or recalcitrant pollutor, or to abate con-

tinuing sources of pollution which for some reason

or other have not been subjected to a proceeding

conducted by the Federal Water Quality Adminis-

tration or by a State, or where in the opinion of the

Federal Water Quality Administration the pollutor

has failed to comply with obligations under such

a procedure. To this end, the instructions in Section

III below encourage United States Attorneys to use

the Refuse Act to punish or prevent significant dis-

charges, which are either accidental or infrequent,

but which are not of a continuing nature resulting

from the ordinary operations of a manufacturing

plant. Discharges of this last type, of course, pose

the greatest threat to the environment — but it is

precisely this type of discharge that the Congress

created the Federal Water Quality Administration

to decrease or eliminate, and it is to the programs,

policies, and procedures of that Agency that we

shall defer with respect to the bringing of actions

under the Refuse Act.” (Emphasis added.)

Either the internal memoranda or understandings be-

tween the Secretaries of the Army and Interior and

press releases were never communicated to the Justice

3⁴

Department, or there was deep schism between

. 4

knowingly in the middle.

that due process was lacking in the subsequent

Argument.

of the United States. In any case,

Accordingly, the Court of Appeals correctly he 1

tion of PIC CO under the rules set forth in Connally 9,

General Construction Co., 269 U.S. 385, 391, that s

criminal statute: ae

[M]ust be sufficiently explicit to inform those who

are subject to it that conduct on their part will

render them liable to its penalties, is a well-recog.

nized requirement, consonant alike with ordinary

notions of fair play and the settled rules of law. And

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.”

Mr. Justice Holmes expressed the rule another way

in McBoyle v. United States, 283 U.S. 25, 27:

“Although it is not likely that a criminal will care-

fully consider the text of the law before he murders

or steals, it is reasonable that a fair warning

should be given to the world in language that the

common world will understand, of what the law

intends to do if a certain line is passed. To make

Argument.

the warning fair, so far as possible that the line

should be clear.”17

In conclusion, the statutory and regulatory scheme

which faced PICCO in the summer of 1970 was not of

sufficient constitutional clarity on which to base a crim-

inal conviction under Section 13 of the Rivers and

Harbors Act of 1899. To say that the Court’s decisions

in Standard Oil and Republic Steel put PICCO on notice

that its industrial discharges constituted criminal con-

duct is to require of it more imagination than is rp-

quired under any notion of fair play.

Conclusion.

CONCLUSION 3

For the foregoing reasons, the judgment ot.

Court of Appeals should be affirmed. a

Jupp N. PoFFINBERGER, In.

J. RICHARD LAUVER 3

Attorneys for Amicus Curing

Jones & Laughlin Steel!

Corporation x

March, 1973.