# Opinion — United States v. Pennsylvania Industrial Chemical Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1973
- **Citation:** 411 U.S. 655

## Text

SUPREME COURT OF THE UNITED STATES

Syllabus
UNITED STATES v. PENNSYLVANIA
INDUSTRIAL CHEMICAL CORP.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

No. 72-624. Argued March 27, 1973—Decided May 14, 1973
After the District Court refused respondent's offers of proof of

discharging industrial pollutants into a navigable river. The Court

led by the Corps of Engineers i to believe that no
permit was needed for these industrial pollutants. Held
1, Section 13 prohibitions apply i regard to formalized

acts directing States to create pollution prevention and abatement
programs. Pp. 7-15.

2. Although § 13 bars all discharges of pollutants and not only
those that constitute obstructions to navigation, the Corps of
Engineers consistently limited its regulations to such obstructions
and thus may have deprived respondent of fair warning as to
what conduct the Government intended to make criminal. Pp.
15-20.

461 F. 2d 468, modified and remanded to District Court.

Brennan, J., delivered the opinon of the Court, in which Dovatas,
Wurre, and MarsHa.t, JJ., joined; in Part II of which Burcer,
C. J., and Srewarr and Powe 1, JJ., joined; and in Part I of which
BuckmuN and Reunquist, JJ., joined. Burcer, C. J., and
Srzwarr and Powg.u, JJ., filed a statement dissenting from Part I.
Buackmun and Reunquist, JJ., filed a separate statement dis-
senting from the judgment and Part II.

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SUPREME OOURT OF THE UNITED STATES
No. 72-624

uited Staten, ’| On Writ of Certiorari to the
United States Court of Ap-

Pemeylvania Toda peals for the Third Circui

[May 14, 1973]

Mr. Justice Brennan delivered the opinion of the
Court.

We review here the reversal by the Court of Appeals
for the Third Circuit of respondent’s conviction for vio-
lation of § 13* of the Rivers and Harbors Act of 1899,

1 Section 13, 33 U. 8. C. § 407, provides:

“It shall not be lawful to throw, discharge, or deposit, or cause,
suffer, or procure to be thrown, discharged, or deposited either from
or out of any ship, barge, or other floating craft of any kind, or
from the shore, wharf, manufacturing establishment, or mill of any
kind, any refuse matter of any kind or description whatever other
than that flowing from streets and sewers and passing therefrom
in 8 liquid state, into any navigable water of the United States, or
into any tributary of any navigable water from which the same
shall float or be washed into such navigable water; and it shall not
be lawful to deposit, or cause, suffer, or procure to be deposited
material of-any kind in any place on the bank of any navigable
water, or on the bank of any tributary of any navigable water, where
the same shall be liable to be washed into such navigable water,
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 to, apply to, or prohibit
the operations in connection with the improvement of navigable
waters or construction of public works, considered necessary and
proper by the United States officers supervising such improvement
or public work: And provided further, That the Secretary of the
Army, whenever in the judgment of the Chief of Engineers anchorage

33 U. S.C. § 401 et seg. Two questions are pr

The first is whether the Government may pros =
alleged polluter under § 13 in the absence of the promul. :
gation of a formal regulatory-permit program by the
Secretary of the Army.’ The second is whether, if the

and navigation will not be injured thereby, may permit the deposit
of any material above mentioned in navigable waters, within limits
Jpthetemrssedl canbe ere sages psar-rweag 8 provided
application is made to him prior to depositing such material;
whenever any permit is so granted the conditions thereof shall be
strictly complied with, and any violation thereof shall be unlawful.”
Section 16 of the Rivers and Harbors Act of 1899, 33 U. 8. C,
§ 411, provides: .
“Every person and every corporation that shall violate, or that
shall knowingly aid, abet, authorize, or instigate a violation of the
provisions of sections 407, 408, and 409 of this title shall be guilty
of a misdemeanor, and on conviction thereof shall be punished by
a fine not exceeding $2,500 nor less than $500, or by imprisonment
(in the case of a natural person) for not less than thirty days nor
more than one year, or by both such fine and imprisonment, in the
discretion of the court, one-half of said fine to be paid to the person
or persons giving information which shall lead to the conviction.”
2 A formal permit program under § 13 was established subsequent
to the dates of the alleged violations involved in this case. See n 9,
infra. On October 18, 1972, Congress passed a comprehensive piece
of legislation providing for national water quality standards and
for a federal permit program relating to the discharge of pollutants
into navigable waters. Federal Water Pollution Control Act Amend-
ments of 1972, Pub. L. No. 92-500, 86 Stat. 816. Section 402 of
the 1972 Act prohibits further issuance of permits under §13 of
the Rivers and Harbors Act of 1899 and designates the Adminis
trator of the Environmental Protection Agency as the exclusive
authority to permit discharges of pollutants into navigable waters.
In addition, the Act provides for a hiatus on new litigation under
$13 of the 1809 Act until December 31, 1974, or, if sooner, until
final administrative action has been taken on permit applications
submitted under the 1972 Act. The 1972 Act does not, however,
affect pending actions under the 1899 Act. Federal Water Pollution
Control Act Amendments of 1972 § 4 (a), 86 Stat. 896.

UNITED STATES v. PENNSYLVANIA CHEM. CORP. 3

prosecution is maintainable despite the non-existence of
a formal regulatory-permit program, this respondent was
entitled to assertas a defense its alleged reliance on the
Army Corps of Engineers’ long-standing administrative
construction of § 13 as limited to water deposits that im-
pede or obstruct navigation.

On April 6, 1971, the United States filed a criminal
information against the respondent Pennsylvania Indus-
trial Chemical Corporation (“PICCO”), alleging that on
four separate occasions in August 1970 the corporation
had discharged industrial refuse ters’ into the
Monongahela River‘ in violation of § 13, of the 1899
Act. By its terms, § 13° prohibits the di
posit into navigable waters of “any refuse
kind or description whatsoever other than

*The refuse matters were identified as “iron, aluminum, and com-
pounds containing these chemicals, and clorides, phosphates, sulfates
and solids.” App., at 3-4.

‘The Monongahela River is a 128-mile-long, navigable water-
way that flows through western Pennsylvania and northern West
Virginia.

‘Section 13 is sometimes referred to as the “Refuse Act of 1899,”
but that term is a post-1970 label not used by Congress, past or
present. Moreover, some authors use the term to refer only to § 13,
see, ¢. g., Note, The Refuse Act of 1899: New Task for an Old Law,
22 Hast. L. J. 782 (1971), while others use it to refer to the entire
Rivers and Harbors Act of 1899, see, e. g., Rogers, Industrial Water
Pollution and the Refuse Act: A Second Chance for Water Quality,
119 U. Pa. L. Rev. 761, 766 (1971).

*It has been suggested that since § 13 prohibits the “discharge or
deposit” of refuse but authorizes the Secretary to permit only “the
deposit” of refuse, it may be appropriate to distinguish between a

4 UNITED STATES v. PENNSYLVANIA CHEM. ‘CORR.

of Engineers not to be injurious to navigation,’ ovided
application is made to [the Secretary] prior to | 4
ing such material. ... .”' At toial,. it wag sted
that PICCO operated a manufacturing plant on the bank
of the Monongahela River, that PICCO-owned conenete
and iron pipes discharged the refuse matter into the river,
and that PICCO had not obtained a permit. from. the
Secretary of the Army prior to the discharges in question,
PICCO argued, however, that the discharges did not vio.
late § 13 because (1) the liquid solution flowing from its
pipes was “sewage” exempt from the statutory |
tion; (2) the discharge did not constitute “refuse matter”
within the meaning of § 13 because it was not matter that
would “impede navigation”; and (3) the term “refuse”
as used in § 13 must be defined in light of the water
quality standards established pursuant to the Water Pol.
lution Control Act of 1948 and its amendments.* In
addition, PICCO sought to introduce evidence to show
that its failure to obtain a § 13 permit was excusable in
this instance because prior to December 1970° the Army

“discharge” and a “deposit” and hold that only a “deposit” of refuse
may be permitted by the Secretary. Hearings before the Subcom-
mittee on the Environment of the Senate Committee on Commerce,
92d Cong., Ist Sess. 31 (1971). However, we find no support for such
a distinction in either the Act itself or its legislative history.

’ The Secretary's authority to issue permits under § 13 terminated
on October 18, 1972. See n. 2, supra. ,

* 62 Stat. 1155, as amended, Act of July 17, 1952, c. 927, 66 Stat,
755; Federal Water Pollution Control Act Amendments of 1956,
70 Stat. 498; Federal Water Pollution Control Act Amendments of
1961, Pub. L. No. 87-88, 75 Stat. 204; Water Quality Act of 1965,
Pub. L. No. 80-234, 79 Stat. 903; Clean Water Restoration Act of
1966, Pub. L. No. 89-753, 80 Stat. 1246; Water Quality Improve-
ment Act of 1970, Pub. L. No. 91-224, 84 Stat. 91.

*On December 23, 1970, the President announced the establish-
ment of a formal § 13 permit program. Executive Order 11574, 35
Fed. Reg. 19,627 (Dec. 25, 1970). The Corps of Engineers followed
on December 31, 1970, with proposed regulations. 35 Fed. Reg.

UNITED STATES». PENNSYLVANIA CHEM. ‘CORP. 5

Corps of Engineers had not established a formal pro-
gram for issuing permite under § 13, and moreover, be-
cause the Corps eonsistently construed § 13 as: limited
to those deposits that would impede or obstruct naviga-
tion thereby affirmatively misleading, PICCO into believ-
ing that a § 13 permit was not required as a condition to
discharges of matter involved in this case. The District
Court rejected eath of PICCO’s arguments as.to the
scope and meaning of §.13, disallowed. F'ICCO’s offers of
proof on the ground that they were not relevant to the
issue of guilt under § 13, and instructed the.jury accord-
ingly. PICCO was convicted on all four counts and
assessed the maximum fine of $2,500 on each count.
329 F. Supp. 1118 (WD Pa. 1971).

On appeal, the Court of Appeals for the Third Circuit
affirmed the District Court’s holdings as to the applica-
tion of § 13 to the matter discharged by PICCO into the
river,’ but rejected the District Court’s conclusion that
the § 13 prohibition was operative in the absence of for-
malized permit procedures. 461 F. 2d 468 (CA3 1972).
The Court of Appeals reasoned that this interpretation
was tantamount to reading § 13 to be an absolute pro-
hibition against the deposit of any “foreign substance”
into the navigable waters of the country and this would
have had such a “drastic impact . . . on the nation’s
economy even in 1899,” id., at 473, that this interpreta-
tion could not reasonably be imputed to Congress. In-
20,005 (Dec. 31, 1970). Final regulations implementing the Presi-
dent’s program became effective April 7, 1931. 33 CFR § 209.131
(1972). That program, with certain changes, has now become part
of the new permit program authorized by § 402 of the Federal Water
Pollution Control Act Amendments of 1972, See n. 2, supra.

*° This part of the Court of Appeals’ decision is not before us for
review. See Brennan v. Arnheim and Neely, Inc. — U. 8. ms,

— (1973); NLRB vy. International Van Lines, 409 U. 8. 48, 52 n. 4
(1972).

ee

6 UNITED STATES v, PENNSYLVANIA CHEM. CORP. —

stead, the Court of Appeals concluded that ae
ioeendod tn condita ntatement of 418 enshe ecg
an te ek ee ‘The

| Char’ Sileheliphaiad’ w’ Maguatoe petit ial
suant to which persons in PIOCO’s position would »
be able to discharge industrial refuse at the dis.
cretion of the Secretary of the Army. It intended —
criminal penalties for those who failed to comply
with this regulatory program. Congress did not,
however, intend criminal penalties for people who _
failed to comply with a non-existent regulatory pro-
gram.” /d., at 475. .

The Court of Appeals seems to have found a.
for this interpretation of §13 in “Congress’ subsequent
enactments in the water quality field.” Jd., at 473. .
The court stated that “[t]here would appear to be
something fundamentally inconsistent between the pro-
gram of developing and enforcing water quality stand-
ards under the Water Quality Act and section 407 of the
Rivers and Harbors Act [§ 13], if the effect of the latter .
is to prohibit all discharges of industrial waste into navi-
gable waters.” Jbid. As it viewed the matter, “[w]hat
makes the two statutes compatible is the permit pro-
gram contemplated by Section 13.” Jbid. Accordingly,
the Court of Appeals held that it was error for the
District Court to have refused PICCO the opportunity
to prove the nonexistence of a formal permit program at
the time of the alleged offenses.

As an alternative ground for reversal, a majority of
the Court of Appeals held that the District Court erred
in disallowing PICCO’s offer of proof that it had been
affirmatively misled by the Corps of Engineers into be-
lieving that it was not necessary to obtain a § 13 permit
for the discharge of industrial effluents such as those

UNITED STATES v. PENNSYDVANIA CHEM. CORP. 7

involved in this case. If such facts were true, the Court
of Appeals stated, it would be fundamentally unfair to
allow PICCO’s conviction to stand. _...

Thus, the Court of Appeals set aside PICCO’s convic-
tion and remanded the case to the District Court to give
PICCO an opportunity to present the proffered proofs.
that had been disallowed by the District Court.

We granted the Government's petition for certiorari.
409 U. S. 1074 (1972). We agree with the Court of
Appeals that the District Court’s judgment of convic-
tion must be reversed, but we cannot agree with the
Court of Appeals’ interpretation of § 13 as foreclosing
prosecution in the absence of the existence of a formal
regulatory-permit program.

I

Section 13 creates two separate offenses: the discharge
or deposit of “any refuse matter” into navigable waters
(with the streets and sewers exception) ; and the deposit
of “material of any kind” on the bank of any navigable
waterway or tributary where it might be washed into
the water and thereby impede or obstruct navigation.
LaMerced, 84 F. 2d 444, 445 (CA9 1986); United States
v, Consolidation Coal Co., 354 F. Supp. 173, 175 (ND
W. Va. 1973). The second proviso to § 13 authorizes
the Secretary of the Army to exempt certain water de-
posits from the prohibitions of § 13, “provided appli-
cation is made to him prior to depositing such material.”
In exercising that authority the proviso requires the Sec-
retary to rely on the judgment of the Chief of Engineers
that anchorage and navigation will not be injured by
such deposits. But even in a situation where the Chief
of Engineers ‘concedes that a certaifi deposit will not
injure anchorage and navigation, the Secretary need not
necessarily permit the deposit, for the proviso makes the
Secretary's authority discretionary—i. e., the proviso pro-

8 UNITED STATES v. PENNSYLVANIA CHEM. CORP.

vides that the Seoretary “may permit’ the deposit. The
proviso further provides that permits issued by the Seo.
retary are to prescribe limits and conditions, any viols- _
tion of which is unlawful. It is crucial to our inquiry,
however, that neither the proviso nor any provision of
' the statute requires that the Secretary prescribe general
regulations or set criteria governing issuance of permits.
Thus, while nothing in § 13 precludes the establish.
ment of a formal regulatory program by the Secretary,
it is equally clear that nothing in the section requires the
estab t of such a program as a condition to render-
ing § 13 operative. United States v. Granite State Pack-
ing Co., 470 F. 2d 308, 304 (CAl 1972). In contrast,
other provisions of the Rivers and Harbors Act of 1899,"
do inclyde a_requirement for regulations. Consequently,
we disagree with the Court of Appeals that § 13 itself
precludes prosecution for violation of its provisions in
the absence of a formal] regulatory-permit program.
Similarly, there is nothing in the legislative history
of § 13 that supports the conclusion of the Court of Ap-
peals that such a requirement is to be read into the
section. Section 13 is one section of a comprehensive
law enacted in 1899 to codify pre-existing statutes de-
signed to protect and preserve our Nation’s navigable
waterways. United States v. Standard Oil Co., 384'U.S. —
224, 226 (1966).
_The history of the 1899 Act begins with this Court’s
decision in 1888 in Willamette Iron Bridge Co. v. Hatch,
125 U. 8. 1. The Court there held that there was no
federal common law prohibiting obstructions and nui-

11 See §11 of the Rivers and Harbors Act of 1899, 33 U. 8. C.
§ 404, which instructs the Secretary of the Army to establish harbor
lines beyand which works may not be extended or deposits made
“except under such regualtions as may be prescribed from time to
time by him.” See also § 4 of the Rivers and Harbors Act of 1906,
33 U. 8. C. § 419, authorising regulations regarding the transporta-
tion and dumping of dredging material.

UNITED STATES v. PENNSYLVANIA CHEM. CORP. 9

sances in navigable waters. In response to that decision,
Congress passed a series of laws that were later re-
enacted as the Rivers and Harbors Act of 1899. Sec-
tion 6 of the first such law, the Rivers and Harbors Act
of 1890, provided in part:
“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, manufactur-
ing establishments, or mills of any kind whatever,
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 im-
peded or obstructed: Provided, That nothing herein
contained shall extend or be construed to extend .. .
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.

Four years later, Congress enacted the Rivers and Har-
bors Act of 1894. Section 6 of that Act provided in part:

| “It shall not be lawful to place, discharge, or de-
| posit, by any process or in any manner, ballast,

10 UNITED STATES v. PENNSYLVANIA CHEM. CORP.

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 sea-
wall, bulkhead, jutty, dike, levee, wharf, pier, or
other work built by the United States, in whole or
in part, for the preservation and improvement of
any of its navigable waters, or to prevent floods, or
as boundary marks, tide gauges, surveying stations,
buoys, or other established marks ....” 28 Stat.
363.)

In 1896, Congress commissioned the Secretary of War
to compile the various acts protecting navigable waters
and “to submit the same to Congress . . . together with
such recommendation as to revision, emendation, or en-
largement of the said laws as, in his judgment, will be
advantageous to the public interest.” ** The Secretary,
in turn, delegated the task to the Chief of Engineers, and
in February 1897, the Chief of Engineers delivered a
draft proposal to the Secretary together with a cover
letter that read in part:

“T have the honor to submit herewith (1) a com-
pilation [of the various existing laws protecting
navigable waters] and (2) a draft of an act embody-

12 This section of the 1804 Act, as well as § 6 of the 1890 Act, were
modeled after statutes passed in 1888 and 1886 pertaining only to
New York Harbor. See United States v. Standard Oil Co., 384
U. S. 224, 226-228 (1966).

13 Act of June 3, 1896, c. 314, §2, 29 Stat. 234.

UNITED STATES v, PENNSYLVANIA CHEM. CORP. 11

?
ing such revision and enlargement of the aforesaid
laws as the experience of this office has shown to be
advantageous to the public interest.” **

In his compilation, the Chief of Engineers combined
the essentials of §6 of the 1890 Act and of §6 of the
1894 Act to form the present § 13 of the Rivers and Har-
bors Act of 1899. Congress enacted the compilation with
virtually no debate that contains mention of the in-
tended operative scope of §13. It seems quite clear,
however, that § 13 was intended to have no wider or
narrower & scope than that of its two predecessor stat-
utes. United States v. Standard Oil Co., supra, 384 -
U. S., at 227-228. It is true, of course, that the Chief
of Engineers was authorized to recommend a “revision”
or “enlargement” of the existing laws and that his cover
letter accompanying the compilation referred to “a draft
of an act embodying such revision and enlargement of
the aforesaid laws.” But the revision and enlargement
was limited to “the existing law relating to the removal
of wrecks,” ** and even on that subject the changes were
minor. Indeed, Senator Frye, the Chairman of the Sen-
ate Rivers and Harbors Committee, stated in response
' to a question whether any great change was made in the
existing law by, the compilation: “Oh, no, there are not
ten words changed in the entire thirteen sections. It is
a compilation ..... [with] [vJery slight changes to re-
move ambiguities.” ** ’

Thus, the Court of Appeals’ interpretation of § 13 has
no support in the predecessor statutes of §13. Plainly,
neither of the predecessor statutes contemplated that ap-
plication of their operative provisions would turn. on the
existence of a formal regulatory program. On the con-

*H. R. Doc. No. 293, 55th Cong., 2d Sess. (1897).
Ibid. See 33 U. S. C. § 414.
16 32 Cong. Rec. 2297 (1899).

_

12 UNITED STATES v. PENNSYLVANIA CHEM. CORP.

trary, § 6 of the 1890 Act provided only that its absolute
ban on the discharge of enumerated substances could not
be construed “to prevent” the Secretary of War from
granting, in his discretion, a permit to deposit such ma-
terial into navigable waters. And §6 of the 1804 Act |
contained no direct permit authorization whatsover””
We turn then to the Court of Appeals’ assertion that
its conclusion is supported by later congressional enact-
ments in the water quality field. In this regard, the
Court of Appeals placed primary reliance ™ on the 1965

171t is true that §6 of the 1894 Act prohibited discharges and
deposits only “elsewhere than in limits defined and permitted by
the Secretary of War,” but that language did not contemplate the
establishment of a formal regulatory program by the Secretary.
Section 6 of the 1890 Act granted the Secretary discretionary au-
thority to permit nonimpending discharges and nothing in the 1894
Act purported to curtail that earlier grant of authority to the Seo-
retary. Thus, the reference in the 1894 provision to “limits defined
and permitted by the Secretary” refers merely to the Secretary’s
existing permit authority under the 1890 provision.

18 Inferentially, the Court of Appeals also referred to §4 of the
Rivers and Harbors Act of 1905, 33 U. 8S. C. § 419. See 461 F. 2d,
at 475 n. 7. But that provision, which was originally proposed as
an amendment to § 13 of the 1899 Act and clearly contemplated the
establishment of a formal regulatory program by the Secretary
(although it does not require that such a program be established),
provides no support for the Court of Appeals’ interpretation of § 13.
On the contrary, the existence of § 4 of the 1905 Act tends to confirm
the conclusion that § 13 is not conditioned on the establishment of a
formal regulatory program. For the Igeislative history of §4 ex-
plains that it was deemed desirable to give the Secretary authority
to promulgate general permissive dumping regulations as to some
bodies of water (such as New York and Boston Harbors) because a
large amount of illegal dumping was going on in these waters at
night and it was “almost impossible to detect” the violators, thereby
making it “impossible to secure convictions.” 39 Cong. Rec. 3078
(1905). A formal regulatory program, in other words, was the lesser
of two evils as to these bodies of water since there were insufficient
facilities and personnel to effectively enforce the general prohibitions

UNITED STATES v. PENNSYLVANIA CHEM. CORP. 13

and 1970 amendments to the Water Pollution Control
Act of 1948—the Water Quality Act of 1965, 79 Stat.
903, and the Water Quality Improvement Act of 1970,
84 Stat. 91.° The Court of Appeals concluded that since
the 1965 and 1970 Acts contemplated that discharges
must meet minimum water quality standards, as set forth
by state agencies, it would be “fundamentally inconsist-
ent” to read §13 as imposing a ban on all pollutant
discharges. 461 F. 2d, at 473. We cannot agree. The
Water Quality Acts were a congressional attempt to en-
list state and local aid in a concentrated water pollution
control and abatement program. The legislative direc-
tive of those statutes was that state and local officials,
working in cooperation with federal officials, establish
minimum water quality standards and create pollution
prevention and abatement programs. Nothing in the
statutes or their parent statute operated to permit dis-
charges that would otherwise be prohibited by § 13, and
in bach ease Congress specifically provided that the new
statutes were not to be construed as “affecting or im-

of $13. The implication is clear, however, that had the persons
responsible for the unauthorized dumping been discovered, prosecu-
tion for violation of § 13 would have been the appropriate remedy,
even though then, as at the time of the present offenses, there-existed
no formal regulatory program under § 13.

No explanation was given by Congress for its ultimate decision to
codify § 4 of the 1905 Act separately rather than as an amendment
to §13. Possibly, Congress hoped that such regulations would be
issued sparingly so as not to eviscerate the broad antidumping pro-
hibitions of §13. In any event, the Secretary’s discretionary
regulatory-program authority under §4 of the 1905 Act certainly
cannot be read into §13 as an operative requirement, and absent
establishment of a regulatory program under § 4 of the 1905 Act
as to a particular body of water, the prohibitions of § 13 remain in
tact and completely enforceable.

These statutes are to a large extent superseded by the 1972
amendments to the Water Pollution Control Act. See n. 2, supra.

=

14 UNITED STATES v. PENNSYLVANIA CHEM: CORP.

pairing the provisions of [§ 13 of the Rivers and Harker
Act of 1899].” * He Sy pg

Indeed, the water quality legislation expressly com.
plements the provisions of §.13 of the 1899 Act, Fi
tion 18, although authorizing the Secretary of the Army
to permit certain water deposits, contains no criteria to
be followed by the Secretary in issuing such permits
The water quality legislation, on the other hand, calls for
the setting of minimum water quality standards, and once
such standards are established, federal permit authority,
such as that vdsted in the Secretary of the Army by the
second proviso to § 13, is specifically limited to that ex.
tent—i. e., a permit could not be granted by the Secretary
unless the discharge material met the applicable stand.
ards. Water Quality Improvement Act of 1970, § 163,
84 Stat. 107. In essence, therefore, the Water Quality
Acts placed a limitation on the Secretary’s permit. author.
ity without undermining the general prohibitions of § 13,
See United States v. Maplewood Poultry Co., 327 F. Supp,
686, 688 (Me. 1971) ; United States v. United States Steel
Corp., 328 F. Supp. 354, 357 (ND Ind. 1970); United
States v. Interlake Steel Corp., 297 F. Supp. 912, 916
(ND Ill. 1969).

We therefore find nothing fundamentally inconsistent
between § 13 and the subsequent federal enactmentg in
the water quality field. Section 13 declares in simple
absolutes that have been characterized as “almost an .
insult to the sophisticated wastes of modern technology” *
that “[i]t shall not be lawful” to discharge or deposit into

2° See § 11 of the Water Pollution Control Act of 1948, 62 Stat.
1161, as amended in 1956, 70 Stat. 507, as further amended by the
Water Quality Act of 1965, 79 Stat. 903, and as further amended
by the Water Quality Improvement Act of 1970, 84 Stat. 113.
*1 Rogers, Industrial Water Pollution and the Refuse Act: A
Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766
(1971).

UNITED STATES v. PENNSYLVANIA CHEM. CORP. 15

navigable waters of the United States “any refuse matter
of any kind or description whatever” except as permitted
by the Secretary of the Army. In enacting subsequent
legislation in the water quality field, Congress took special
_ precaution to preserve the broad prohibitions of § 13 and
in no way implied that those prohibitions were operative
only under s formal regulatory-permit program. Simi-
larly, nothing in the language or history of § 13 conditions
enforcement of its prohibitions on the establishment of
a formal regulatory-permit program and, as we have said
in the past, “the history of this provision and of related
legislation dealing with our free-flowing rivers ‘forbids a
narrow, cramped reading’ of §13.” United States v.
Standard Oil Co., supra, at 226; United States v. Re-
public Steel Corp., 362 U. S. 482, 491 (1960).

II

We turn, therefore, to the Court of Appeals’ alternative
ground for reversing PICCO’s conviction, namely, that
in light of the long-standing, official administrative con-
struction of § 13 as limited to those water deposits that
tend to impede or obstruct navigation, PICCO may have
been “affirmatively misled” into believing that its con-
duct was not criminal.** We agree, with the Court of
Apepals that PICCO should have been permitted to
present relevant evidence to establish this defense.

At the outset, we observe that the issue here is not
whether § 13 in fact applies to water deposits that have
no tendency to gffect navigation. For, although there
was much dispute on this question in the past,”* in

* It was conceded for purposes of this case that the refuse matter
involved was not of a nature that would impede or obstruct naviga-
tion. 461 F. 2d, at 478. See also n. 3, supra.

* The seeming ambiguity of the language of § 13 and the sparce
legislative history of that provision caused the lower courts to disagree
over the years as to the proper scope of § 13. The second clause

*

16 UNITED STATES v. PENNSYLVANIA CHEM. CORP.

United States v. Standard Oil Co., supra, we held that
“the ‘serious injury’ to our watercourses . . sought to
be remedied [by the 1899 Act] was caused in part by
obstacles that impeded navigation and in part by pollu.
tion,” and that the term “refuse” as used in § 13 “in.
cludes all foreign substances and pollutants... .” 3%
U. 8., at 228-229, 230.% See also [linois v. City of Mil
waukee, 406 U.S. 91, 101 (1972). Since then, the lower
courts have almost universally agreed, as did the courts
below, that § 13 is to be read in accordance with its plain
language as imposing a flat ban on the unauthorized de-
posit of foreign substances into navigable waters, regard-
leas of the effect on navigation. See, e. g., United States

of § 13, which prohibits the deposit of refuse on the “bank” of any

navigable water or tributary where such refuse may be washed into
the water, is expressly limited to deposits that shall or may impede
or obstruct navigation. The first clause of § 13, however, which is
set off from the second clause by a semicolon, contains no language
of its own limiting ite prohibition to navigation-impeding deposits.
Similarly, in regard to the two predecessor statutes of § 13, §6 of
the 1890 Act was expressly limited to navigation-impeding deposits,
but §6 of the 1804 Act was not. And the legislative history of § 13
and its predecessor statutes is hardly conclusive on this issue. But
see Note, Discharging New Wine into Old Wineskins: The Meta-
morphosis of the Rivers and Harbors Act of 1899, 33 U. Pitt. L. Rev.
483 (1972).

See as construing § 13 to be applicable to all water deposits re-
gardless of their tendency to obstruct or impede navigation,
LaMerced, 84 F. 2d 444 (CA9 1936); The President Coolidge, 101

F. 2d 638 (CA9 1939) ; United States v. Ballard Oil Co. of Hartford,

195 F. 2d 369 (CA2 1952). See as construing § 13 to be applicable
only to navigation-impeding deposits, United States v. Crouch
(1922) (unreported, see United States v. Standard Oil Co., 384 U.8.
224, 229 n. 5 (1966)); Warner-Quinlan Co. v. United States, 273
F. 508 (CA3 1921); Nicroli v. Den Norske Afrika-Og Australielinie,
etc., 332 F. 2d 651 (CA2 1964). :

% Standard Oil involved an accidental discharge of aviation gaso-
line into navigable waters . The District Court had made the find-
ing that the gasoline “was not such as to impede navigation.”
United States v. Standard Oil Co., No. 62-291, appendix, at pp. 8-11.

UNITED STATES v. PENNSYLVANIA CHEM. CORP. 17

v. Granite State Packing Co., 343 F. Supp. 57, aff'd, 470
-F, 2d 303 (CAl 1972); United States v. Standard Oil
Co. of Puerto Rico, 375 F. 2d 621 (CA3 1967); United
' States v. Consolidation Coal Co., supra, 354 F. Supp.
173 (ND W. Va. 1973); United States v. Genoa Co-op
Creamery Co., 336 F. Supp. 539 (WD Wis. 1972) ; United
States v. Maplewood Poultry Co., supra, 327 F. Supp. 686
(Me. 1971); United States v. United States Steel Corp.,
supra, 328 F. Supp. 354 (ND Ind. 1970); United States
v. Interlake Steel Corp., supra, 297 F. Supp. 912 (ND
Til. 1969); contra, Guthrie v. Alabama By-Products Co.,
328 F. Supp. 1140 (ND Ala. 1971), aff'd, 456 F. 2d 1294
(CA5 1972).

Nevertheless, it is undisputed that prior to December
1970 the Army Corps of Engineers consistently construed
§ 13 as limited to water deposits that affected navigation.
Thus, at the time of our decision in Standard Oil, the
published regulation pertaining to § 13 read as follows:

“$ 209.395. Deposit of refuse. Section 13 of the
Rivers and Harbors Act of March 3, 1899 (30 Stat.
1152; 33 U. 8. C. 407), prohibits the deposit in
navigable waters generally of ‘refuse matter of any ~
kind or description whatever other than that flow-
ing from streets and sewers and passing therefrom
in @ liquid state.’ The jurisdiction of the Depart-
ment of the Army, derived from the Federal laws
enacted for the protection and preservation of the
navigable waters of the United States, is limited and
directed to such control as may be necessary to pro-
tect the public right of navigation. Action under
section 13 has therefore been directed by the De-
partment principally against the discharge of those
materials that are obstructive or injurious to naviga-
tion.” 33 CFR § 209.395 (1966).

In December 1968, the Corps of Engineers published
& complete revision of the regulations pertaining to

_— |

18 UNITED STATES v. PENNSYLVANIA CHEM. CORP.

navigable waters. The new regulations pertaining to.
§§ 9 and 10 of the Rivers and Harbors Act of 1899, deal.
ing with construction and excavation in navigable waters,
stated for the first time that the Corps would consider
pollution and other conservation and environmental fac-
tors in passing on applications under those sections
for permits to “work in navigable waters.” 33 CFR
§ 209.120 (d) (1969). But notwithstanding this refer.
ence to environmental factors and in spite of our inter.
vening decision in Standard Oil, the new regulation
pertaining to § 13 of the 1899 Act continued to construe
that provision as limited to water deposits that affected
navigation :

“(2) Section 13 of the River and Harbor 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, when-
ever in the judgment of the Chief of Engineers
anchorage and navigation will not be injured thereby,
within limits to be defined and under conditions to
be prescribed by him. Although the Department
has exercised this authority from time to time, it is
considered preferable to act under Section 4 of the
River and Harbor 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.” 33
CFR § 209.200 (e)(2) (1969).

25 Section 4 of the Rivers and Harbors Act of 1905 authorizes the
Secretary of the Army to prescribe regulations to govern the trans-
portation and dumping into navigable waters of dredgings, earth,
garbage, and other refuse matter whenever in his judgment such
regulations are required “in the interest of navigation.” 33 U. 8. C.
§ 419. Thus, the reference to that provision in the Corps’ revised
regulation did not signify a change in the Corps’ construction of § 13.

UNITED STATES v. PENNSYLVANIA CHEM. CORP. 19

At trial, PICCO offered to prove that, in reliance on
the consistent, long-standing administrative construction
of § 13, the deposits in question were made in good faith
belief that they were permissible under law. PICCO
does not contend, therefore, that it was ignorant of the
law or that the statute is impermissibly vague, see Con-
nally v. General Construction Co., 269 U. S. 385 (1926) ;
Bouie v. City of Columbia, 378 U. S. 347 (1964), but
rather that it was affirmatively misled by the responsible
administrative agency into believing that the law did not
apply in this situation. Cf. Raley v. Ohio, 360 U. S. 423
(1959) ; Coz v. Louisiana, 379 U.S. 559 (1965).

Of course, there can be no question that PICCO had
a right to look to the Corps of Engineers’ regulations for
guidance. The Corps is the responsible administrative
agency under the 1899 Act, and “the rulings, interpreta-
tions, and opinions of the [responsible agency] ... ,
while not controlling upon the courts by reason of their
authority, do constitute a body of experience and in-
formed judgment to which .. . litigants may properly
resort for guidance.” Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944) ; Maritime Board v. Isbrandtsen Co., 356
U. S. 481, 499 (1958). Moreover, although the regula-
tions did not of themselves purport to create or define
the statutory offense in question, see United States v. |
Mersky, 361 U. S. 431 (1960), it is certainly true that -
their designed purpose was to guide persons as to the
meaning and requirements of the statute. Thus, to the
extent that the regulations deprived PICCO of fair
warning as to what conduct the Government intended
to make criminal, we think there can be no doubt that
traditional notions of fairness inherent in our system of
criminal justice prevent the Government from proceed-
ing with the prosecution. See Newman, Should Official
Advice Be Reliable?—Proposals as to Estoppel and Re-
lated Doctrines in Administrative Law, 53 Col. L. Rev.

20 UNITED STATES v. PENNSYLVANIA CHEM. CORP.

374 (1958); Note, Applying Estoppel Principles in Crim-
inal Cases, 78 Yale L. J. 1046 (1969).

The Government argues, however, that our pronounce-
ment in Standard Oil precludes PICCO from asserting
reliance on the Corps of Engineers’ regulations and that,
in any event, the revised regulation issued in 1968, when
considered in light of other pertinent factors,” was not
misleading to persons in PICCO’s position. But we need
not respond to the Government’s arguments here, for the
substance of those arguments pertains not to the issue of
the availability of reliance as a defense, but rather to
the issues whether there was in fact reliance and, if 0,
whether that reliance was reasonable under the circum-
stances—issues that must be decided in the first instance
by the trial court. At this stage, it is sufficient that we
hold that it was error for the District Court to refuse to
permit PICCO to present evidence in support of its claim
that it had been affirmatively misled into believing that
the discharges in question were not a violation of the
statute.

Accordingly, the judgment of the Court of Appeals is
modified to remand the case to the District Court for
further proceedings consistent with this opinion.

Tue Curr Justice, Mr. Justice Stewart, and Mr.
Justice Powe.u dissent in part, because they agree with
the Court of Appeals that the respondent on remand
should also be given the opportunity to prove the non-

existence of a permit program at the time of the alleged
offenses.

*%* The other factors that the Government argues must be taken
into consideration are post-1968 regulations issued with respect to
other sections of the 1899 Act and with respect to other acts, and
certain Corps of Engineers press releases and periodic publications.
Brief for Petitioner, at 35-38.

UNITED STATES v. PENNSYLVANIA CHEM. CORP. 21

Mr. Justice BLACKMUN and Mr. Justice REHNQUIST
with Part I, but believing that the Court’s opinion
and judgment in United States v. Standard Oil Co., 384
U. S. 224 (1966), make absolutely clear the meaning and
reach of § 13 with respect to PICCO’s industrial discharge
into the Monongahela River; that subsequent reliance
upon any contrary administrative attitude on the part
of the Corps of Engineers, express or by implication, is
unwarranted; and that the District Court was correct in
rejecting PICCO’s offer of proof of reliance as irrelevant,
would reverse the Court of Appeals with directions to
reinstate the judgment of conviction.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0141%3A11. Public record. Not legal advice.