United States v. Pennsylvania Industrial Chemical Corporation

PETITIONER:United States
RESPONDENT:Pennsylvania Industrial Chemical Corporation
LOCATION:Frontiero’s Residence

DOCKET NO.: 72-624
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 411 US 655 (1973)
ARGUED: Mar 27, 1973
DECIDED: May 14, 1973

ADVOCATES:
Harold Gondelman – for respondent
William Bradford Reynolds – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – March 27, 1973 in United States v. Pennsylvania Industrial Chemical Corporation

Warren E. Burger:

We’ll hear arguments next in 72-624, United States against Pennsylvania Industrial Chemical Corporation.

Mr. Reynolds, you may proceed.

William Bradford Reynolds:

Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Third Circuit.

To review that court’s judgment, reversing the judgment of conviction by the District Court in remanding to further proceedings.

The action was commenced by criminal information in April 1971 against respondent, Pennsylvania Industrial Chemical Corporation, hereafter referred to as PICCO.

The Company was charged in four counts with violating Section 13 of the Rivers and Harbors Act of 1899, the so-called Refuse Act, which in relevant part makes it unlawful without first obtaining permission from the Secretary of the Army to discharge into any navigable water of the United States.

“Any refuse matter of any kind or description whatever, other than that flowing from streets and sewers and passing therefrom in a liquid state.”

Harry A. Blackmun:

Mr. Reynolds what was the date of the alleged offense here charged?

William Bradford Reynolds:

The date were — there were two dates.

August 7 and August 19, 1970.

Harry A. Blackmun:

Do you know why though why the complaint, I think it was by complaint here, didn’t zero in on a post December date?

William Bradford Reynolds:

No, Your Honor, I don’t know why they —

Harry A. Blackmun:

Would it simplify the case somewhat —

William Bradford Reynolds:

It certainly would’ve made a much different —

William H. Rehnquist:

I suppose they weren’t anybody canoeing on the Monongahela in December?

William Bradford Reynolds:

Well, at least nobody apparently was sampling the discharges on the Monongahela after that date, but the date of the offenses though were August 7 and August 19, 1970.

Now, the discharges involved here flowed into the Monongahela River admittedly a navigable water from two pipes owned by PICCO and used by the Company to carry off treated waste matter left in the manufacture of chemical compounds used in Industry.

One of the pipes, an iron pipe, served only PICCO’s plant.

The other, a concrete pipe, served the plant primarily, but was also used by six private residences nearby essentially to discard used laundry water.

On August 7 and again on August 19, 1970, the discharges from the two pipes were sampled by private citizens, and the samples were turned over to the Allegheny County Bureau of Test for chemical analysis.

This analysis revealed that the effluent flowing from PICCO’s pipe contained a disproportionably high amount of aluminum, some iron, chloride, phosphate and other chemicals all in greater amounts than were found in the midstream waters of the river, and an unusually high quantity of suspended solids.

At trial, PICCO took the position that the industrial waste it was discharging into the Monongahela River did not constitute prohibited refuse matter under the Act.

First it argued that the Refuse Act covers only river deposits that impede navigation, not non-impeding liquid solutions of the sort involved here.

In the alternative it urged that the discharge from its plant was nothing more than sewage, and thus came within the explicit statutory exception.

Both of these contentions were rejected by the District Court.

They were renewed in the Court of Appeals and also rejected.

No cross petition was filed by respondent in this Court seeking further review of those rulings.

And thus the application of the Refuse Act to discharges of the type involved in this case is not at issue here, because the judgment under review is based on the premise that the act apply to these discharges.

Rather, the issues before the Court relate essentially to the second proviso in the act which provides that the Secretary of the Army “may permit” the deposit of otherwise prohibited material in navigable waters if navigation will not be adversely affected thereby, provided that application is made to the Secretary prior to depositing such material.

Byron R. White:

You’re suggesting that the navigable water are irrelevant whether these discharges would mean — would passed or must under existing regulation Act or under the State Act?

William Bradford Reynolds:

I’m suggesting that that is irrelevant for purposes of this case.

We don’t know it but whether they would or would not satisfy state water quality standards, I say is not relevant for —

Byron R. White:

With the state water quality standards approved by the federal authority?

William Bradford Reynolds:

The 1967 state quality standards for the Commonwealth of Pennsylvania had been approved.

The records —

Byron R. White:

Assume for the moment that those regulations approved by the federal authorities, these discharges could continue to be made?

William Bradford Reynolds:

Assume that I still think —

Byron R. White:

Wouldn’t that have some significance for whether or not a criminal prosecution under another Act to go forward for making these very discharges?

William Bradford Reynolds:

It would have significance, Your Honor, to the extent that the plant sought permission from the federal government also to discharge.

The 1970 water pollution statutes require that the in order to get permission from the federal government, a certification has to be presented that you do meet state quality standards, so —

Byron R. White:

So for this prosecution we’re not getting a permit, not whether or not you could get one if you apply?

William Bradford Reynolds:

For discharging without getting a permit, without getting a federal permit, or without getting any permission from the federal government.

It does not concern whether if application had been made, this plant could have gotten a permit.

We don’t know on this record or on the base of the operative proof whether they even had a state permit that the state certification that they met the 1967 standards.

William H. Rehnquist:

If that sort of thing were relevant if the Government lose its case here since they did make an offer of proof, wouldn’t they?

You’ve got — you say it’s irrelevant that trial judge was properly included that–

William Bradford Reynolds:

That’s right, but it’s irrelevant because they never, in any event, they never presented that certification, even if they did have it to the federal government, and therefore, sought a federal permit.

It’s irrelevant if they just hold it and keep it in their office which will be all that they offer proof in any event would’ve shown had it incorporated such a permit.

Mr. Reynolds, how significant is the decision in this case?

I gather there are pending other criminal prosecutions pending, but how about for the future?

William Bradford Reynolds:

Well, Your Honor, I think it’s relatively insignificant for the future.

It does have significance with respect to the pending criminal and civil —

How many of them are there?

William Bradford Reynolds:

There are now 115.

I believe 115 pending criminal actions and 70 pending civil injunctive suits under the Act, but the 1972 Water Pollution Control Act which does require setup statutory permit program and provides a moratorium in essence on Refuse Act prosecutions until after implementation of that permit plan really makes this particular case insignificant in the future.

With respect in the future, once those — that program is implemented.

People are still going to have to get a permit, aren’t they?

William Bradford Reynolds:

People will still have to get a permit, but —

But maybe they could get one on these circumstances, but if they don’t get one, they may be criminally prosecuted?

William Bradford Reynolds:

That’s correct Your Honor, but I believe they will be criminally prosecuted under another statute.

Not on the —

William Bradford Reynolds:

I believe it would not be under this statute it would rather be under the new 1972 Water Pollution Control Act Amendment.

But because of that Act modifies this one?

William Bradford Reynolds:

Well, that Act has transferred the permit authority that was vested under this Act and the Secretary has transferred it to the Environmental Protection Agency, and it requires now that you get your permit from that agency and I think that —

But you have to get a permit — the reason — one of the reasons you have to get a permit is to satisfy the Refuse Act.

William Bradford Reynolds:

Well, I believe that the Refuse Act that the prosecution will proceed.

There are criminal penalties now under the 1972 Act.

I think that the Refuse Act could well still be viable for non-point source emissions because the 1972 Act really pertains to point source that is emissions coming from pipes directly into the river.

Where your Refuse Act prosecutions in the future rely is essentially with respect to matter that’s placed on the bank where —

Maybe someone tracks it in and dumps it?

William Bradford Reynolds:

Or that type of situation.

Or an accident?

William Bradford Reynolds:

Or an accident, that’s correct.

Mr. Reynolds, I think you mentioned that there’re now more than a hundred prosecutions pending under the 1899 Act.

How many prosecutions were there between 1899 and 1970 when this prosecution was brought?

William Bradford Reynolds:

Well —

Footnote in —

William Bradford Reynolds:

I don’t — I think that before 1968 Your Honor, that there were relatively few prosecutions brought.

That in 1968 I believe that there were something like 30 or 40, and then in 1969 that is when the Government really began to use this particular statute to reach the activity that we’re talking about in this case, so that most of the prosecutions that are set forth in that footnote were prosecutions that they were commenced in 1960, perhaps late ‘68, but generally 1969, ‘70 and ‘71.

Footnote on page 15 (a) of the opinion below which as I read it states that there was only one case in the ‘70 year period where the prosecuting authorities pressed criminal charges under comparable condition.

That conviction was overturned, page 15 (a) of your petition for certiorari.

I don’t want to interrupt your argument, I just wondered what about you challenged that statement in the opinion below, but if you don’t recall it —

Potter Stewart:

That’s a Texas case, and it says tax criminal.

I think it means it is a Texas case and it involves I think the principle that the court’s talking about there.

William Bradford Reynolds:

That’s right.

That is not a — that case, in fact those two cases do not involve the Refuse Act.

They involve statutes requiring plumbers to get a license before they could operate in the State of Texas.

There were more than one criminal prosecution.

There was more than one prosecution under this Act before this particular action was brought.

William Bradford Reynolds:

There was the La Merced case in 1936.

There were a couple of cases prior to that.

There was the Ballard Oil case, of course we have the two cases that were in this Court, Republic Steel and Standard Oil.

There was —

William H. Rehnquist:

Were they both criminal?

William Bradford Reynolds:

The Standard Oil case was a criminal case.

The Republic Steel case was not.

There was a decision in the Third Circuit and there were a number of others.

So it was certainly more than one.

Potter Stewart:

These two cases cited in footnote 8 of the court’s opinion have to do with the principle of imposing criminal penalties for people who fairly comply with a non-existent regulatory program — as I understand it?

William Bradford Reynolds:

That’s correct, yes Your Honor.

Let me look just briefly to the language of the Refuse Act and this second proviso.

The Act itself speaks in broad terms.

It bans all discharges of refuse matter into navigable rivers, or into navigable waters except sewage.

But under the second proviso, the Secretary of the Army “may permit” certain forbidden discharges “provided application is made to him prior to depositing such material.”

Now, this proviso does not speak in terms of the formal regulatory program.

What Congress did in 1899 was to vest in the Secretary discretionary authority, in those instances where a prior application is made, discretionary authority to immunize from criminal prosecution discharges that would otherwise being unlawful.

How, when and in what circumstances he might exercise that authority were left to him.

In this regard, the 1899 Refuse Act was no different from the predecessor statutes on which it was based, neither the Act of 1890 nor the Act of 1894, both of which imposed a flat ban on the discharge of enumerated substances in the navigable waters.

Neither of those statutes called for the establishment of a formal regulatory program under which permission to discharge would be given.

Instead, the decision whether to permit a forbidden discharge was left in those earlier statutes to the discretion of the Secretary of War, he could act or not as he saw fit to accept particular discharges from the general statutory prohibition.

And this we think is what Congress intended by the second proviso in the Refuse Act.

If the Secretary wish to establish a formal regulatory program, it certainly was within his authority to do so under this proviso, but for some 70 years, he chose not to operate on that basis, rather he chose to act informally passing on applications only when and as submitted.

William H. Rehnquist:

Would it really make much difference in your argument if Congress had contemplated the establishment of a formal regulatory program?

William Bradford Reynolds:

I believe that if Congress had contemplated that and it contemplated that the violation of the statute turned on compliance with that program, it would make a difference, Your Honor.

William H. Rehnquist:

But if the language were still the same that you’re guilty of doing this unless you get a permit.

Does it make any difference how formalized the procedure for getting the permit?

William Bradford Reynolds:

I thought you meant if the language had required, the statute required.

No, I think it would not make any difference under this language that whether there was a program set out, form a program set up or not would make no difference.

I think what the proviso does is it provides a limited defense to a Refuse Act prosecution for discharges which the Secretary in his discretion may permit.

William Bradford Reynolds:

Now, under the Court of Appeals decision that limited defense based on affirmative action taken by the Secretary is converted to an absolute defense through a formal permit — because the Secretary fails to exercise his discretion through a formal permit program, what the Court of Appeals decision does is turn the statute on its head.

That which Congress in 1899 declared to be generally prohibited that is the continuous discharge of industrial waste into our nation’s waters becomes generally permissible in the absence of a formal regulatory scheme which Congress did not prescribe.

Now, apparently the Court of Appeals reached this result, not so much on the basis of the language or the history of the Refuse Act, but rather on the basis of its reading of later Congressional enactments in the water quality field, particularly the Water Pollution Control Act of 1948 as amended through 1970 but not the 1972 Amendments which have alluded to and which were enacted after this decision.

But this water quality legislation, the Court of Appeals suggest can’t be reconciled with the 1899 prohibition, unless we read enforcement of that prohibition is turning on the existence of a formal regulatory program.

I might just interject that this problem of reconciliation, whatever it might be has been in large part resolved by the 1972 Amendments where Congress itself incorporated the two acts in essence and certainly reconciled them in that legislation.

But before that in the earlier water quality legislation, Congress provided explicitly that that water quality legislation was not to be construed as impairing or affecting the prohibition of the Refuse Act.

Moreover, the water quality legislation and the Refuse Act don’t across purposes as the Court of Appeals seemed to suggest.

Both arraigned that the same end, the cleaning up the nation’s waters, but they used different means to do it.

Now, we’ve spelled out in our brief the structure of the Water Pollution Control Act.

Essentially that legislation contemplates a cooperative effort by the states and the federal government in establishing and enforcing water quality standards.

But prior to 1972, that is the new amendment in 1972 to this water quality legislation, prior to that time the water quality legislation contained no penalty provisions.

Discharges which reduced the quality of the receiving body of water below the set standards was subject only to lengthy proceedings which could possibly ended in a abatement order.

Thus, the Refuse Act which was saved by Congress, the Refuse Act of 1899 essentially provided the teeth to the clean water program.

Potter Stewart:

Were this just discharge have violated the water quality legislation?

William Bradford Reynolds:

We don’t know, it just can’t be determined Your Honor on this record or on the base of the offers of proof.

We have a permit that’s in the appendix I believe the respondent’s brief, state permit issued in 1956 which permitted the construction of the plant and discharge at that time.

The State of Pennsylvania’s Water Quality Standards were approved in 1967 by the federal government and there’s no indication that the Company has gotten a permit — a certification from the State that it was inline with the 1967 water quality standards, but —

Potter Stewart:

If it is your submission that the Refuse Act did no more than provide the teeth for enforcement of the Water Quality Standards Act, I should suppose the first inquiry in this case, if you’re right, would be whether or not this discharge violated the water quality legislation, wouldn’t it?

William Bradford Reynolds:

Well, I think that would be first inquiry to be made on submission of an application to the federal government for a permit, but the point that we’re making in this case is that the Refuse Act precludes those discharges which fail to meet the water quality standards, and also even those that arguably do meet them until you first go to the federal government and get permission.

Now, the 1970 water quality legislation that’s the earlier amendments required that these companies submit to the federal government certification that it met the water quality standards in its efforts to obtain a permit.

And the Refuse Act would — it would be no violation if they’d gone to the federal government and they’d submitted a certification that they did in fact comply and then they’d been permitted by the federal government to discharge.

But in this case, we don’t have any inquiry made by the Company whatsoever to the federal government with respect to a permit for these particular discharges.

Now, the Company’s argument is that they were affirmatively misled by the Corps of Engineers into believing that a permit wasn’t required in this situation since its discharges did not impede navigation.

And principal reliance with this argument is placed on the Corps of Engineers early regulations, which in 1968 or until 1968 indicated that the Corps reviewed its responsibility under the Refuse Act as I am quoting from those 1968 regulations, as “directed principally against the discharges of those materials that are obstructive or injurious to navigation.”

Now, in view of these earlier regulations and the fact that there were many industrial plants up and down the river that were discharging industrial waste in the same manner, PICCO argues that it could properly assume, and I use that word advisably, it did not go to the Corps of Engineers and asked about these discharges, it didn’t make any inquiry.

It says that it could properly assume that it needed no federal authorization for its non-impeding discharge.

Well, I think this Court in 1966 made it clear in the Standard Oil case that the Refuse Act proscribes discharges of refuse matter having no adverse effect on navigation to the same extent as it prescribes those discharges that in fact impede navigation.

And the fact that the 1899 statute had not for many years been enforced as vigorously with respect to the non-impeding discharges cannot be held to diminish its force today.

We think the essential point here is that following the Standard Oil decision, the Corps of Engineers changed its view of its responsibilities under the Refuse Act with the respect to administering activities in navigable waterways.

And as we spelled out in our brief, the regulations issued — no, the regulations on which PICCO relies were withdrawn in 1968.

William Bradford Reynolds:

New regulations were issued by the Corps and they were published in the federal register, and they served notice that the Corps will consider pollution and conservation factors in passing on applications for permission to use navigable waters.

In addition, and this Mr. Justice Powell goes to I guess your earlier question, in addition a number of actions both criminal and civil were commenced in 1968 and in 1970, a large number of actions under the Refuse Act against companies that were discharging non-impeding industrial waste into the rivers.

In fact, as early as 1967 the Third Circuit, the same court that rendered the decisions below.

The Third Circuit held that that activity, that’s the non-impeding discharges that that was unlawful in or like Steel which is perhaps the case most often cited in this area at lower federal court case most often to cite in this area, was to the same effect.

It was decided in 1969, and indeed there’s no court decision that we’ve been able to find prior to the offenses here that held that the Refuse Act was not, was limited to, just to discharges that impede navigation.

In short, the scope of the criminal prohibition had been authoritatively settled well before PICCO made the present illegal discharges into the Monongahela River.

Moreover, the Corps announced in the summer of 1970 sweeping changes in its regulations pertaining to permits for work in navigable waters.

We have set forth that announcement in our appendix to our main brief, with specific reference to the Refuse Act, it also announced in July 1970 and this announcement is in both our main brief and our reply brief, but there is a misprint in the main brief and that’s why we incorporated it in our reply brief.

In July of 1970, it made the following — issued the following announcement and let me just read quickly the first paragraph of that.

It says “the Corps of Engineers today announced new permit requirements under the Refuse Act concerning all discharges into navigable waters.

Permits will be required for all industrial discharges into navigable waters and their tributaries.

New permits will be required where existing permits were granted without adequate consideration of the quality of the effluent.

Permits will also be required for current discharges into navigable waters where no permits have been granted.”

Now, we believe that it’s clear that if PICCO had made even the most superficial inquiry after 1968, it would have known that it needed a permit to discharge this kind of industrial waste into the waterways.

It made no such inquiry, and we think that without such an inquiry in the face of the change in the regulations, the clear pronouncements by this Court and other lower courts, and the clear pronouncements by the Corps of Engineers that it cannot now be seen to rely on the defense that it was affirmatively misled into believing that this conduct was lawful and was not prohibited by the Act.

For these reasons and the reasons stated in our main brief and reply brief, we submit that the judgment of the Court of Appeals should be reversed and the judgment of the District Court should be reinstated.

Mr. Chief Justice, if I have any time remaining, I’d like to reserve for rebuttal.

Warren E. Burger:

Very well.

Mr. Gondelman.

Harold Gondelman:

Mr. Chief Justice and may it please the Court.

Listening to the Government’s argument today reminds me very much of the lyrics of the Mikado, where Mr. Gilbert said the flowers that bloom in the spring tra la, have nothing to do with the case.

And the Government’s argument has nothing to do with this case.

He did not tell you Mr. Justice Powell, that the first attorney in the history of the United States since March 3, 1899 who has fought a case under that Act through to a jury verdict is me.

That’s the first and only case that has come before this Court on a trial in a courtroom, and Your Honors have specifically reserved that, and that is why I did not go through motions and have the case come up here in the vacuum that it did in Republic Steel and Standard Oil.

You have to have the facts of the case, and in fact in the opinion of this Court in Standard Oil, the last paragraph says, we pass only on the quality of the pollutant not on the quantity of proof necessary to support a conviction nor on the question as to what scienter requirement the Act imposes as those questions are not before the Court on that restricted appeal.

Interestingly enough in the footnote, since having dealt with the construction placed by the court below on the Sherman Act, our jurisdiction on this appeal is exhausted.

We are not at liberty to consider other objections to the indictment or objections which may arise upon the trial with respect to the merits of the charge.

I don’t know what they mean the criminal charge or the charge of the court.

I did attack both of those before the court below.

Now, being trial counsel in the case perhaps gives me a little advantage.

Harold Gondelman:

I’m a bit appalled when the Government tells this Court that there was no offer in the court below to prove that the discharges of which we stand convicted comply with the water quality standards of the Government of the United States say “you have this anomalous situation.”

PICCO has been fined $10,000.00 for violating a criminal statute which the Government of the United States says is not a pollution discharge under its own water quality.

Now, I would refer you to page 158 of the appendix that the Government printed.

Despite the efforts of the court below to keep me from making a record that this Court would have, I insisted that certain offers be made.

One of them is, I also want to be on record.

I want to be on the record the fact that in connection with Mr. —

What page is this Mr. Gondelman?

Harold Gondelman:

158 sir, at the top.

Mr. Lucani incidentally is a water quality control expert who at one time while the canoes were running up and down the Monongahela River, one of his employees filled the bottle and gave it to one of the bounty hunters in the canoe so that he would have it to take back.

Mr. Lucani’s testimony, he would have testified if permitted that the discharges August 7th, August 19th that’s the discharges, and the specific analysis on every matter which is related to this and these information are absolutely within the prescribed limits of the Pennsylvania water quality standards.

This case was tried in June 1972 and I intended to prove as late as June 1972 that every item on the exhibits that the Government have the chemical analyses and attached to their brief, every item is below the standards that the Pennsylvania Sanitary Water Board in charge of this permits under our state permit, permits PICCO to discharge in the Monongahela River.

And the court said yes but I’ve overruled that and to make sure that the record was clear I said “but it is not on the record” and I wanted to be that every matter discharged by this defendant, PICCO, is within the prescribed regulations of the Commonwealth of Pennsylvania which have been adopted by the Government of the United States, and therefore insofar as this actually relates to our dumping, the case is referred to pollutants and refuse interchangeably and as to the government’s own regulations, what we were convicted of discharging as a pollutant is not a pollutant.

And we’ve cited in our brief and I need not go in to that, but the Government has adopted specifically the Pennsylvania standards.

Congress has specifically said that the primacy of enforcing water pollution controls is in the States.

William H. Rehnquist:

Mr. Gondelman, does this part of you argument go to the exist — to the existence of the offense so to speak, or to the existence of the defense, the permit?

Harold Gondelman:

The existence of the offense.

I tried very hard, believe me, to get the Court to harmonize the Water Quality Acts which were passed in 1965, 1970 and the Refuse Act.

They can be read harmoniously together without putting the Government of the United States into the box that it has painted itself by actually being the one who muddies the waters of this whole situation more than anyone else.

William H. Rehnquist:

I understood the Government’s position to be that since you hadn’t cross-petitioned for certiorari from the Third Circuit that the existence of the offense wasn’t properly here.

Harold Gondelman:

Well, of course I find that argument very difficult to believe, because the Government has appealed from the Circuit’s finding number one, that Congress intended no crime under the facts of this case, and two, if Congress did intend such a crime, such a crime would violate due process.

I don’t know how this Court considered the Government’s appeal without getting into the merits of the case and whether or not a crime actually was committed.

And on the issue of whether a crime has been committed, Justice Rehnquist, the issue seems to me to be what is refuse and in technology and Mr. Lucani’s testimony, he was completely almost as frustrated as I because he could not talk about pollutant and refuse, or define those terms because he said “I must know what the receptacle is into which the effluent is being discharged.”

You see, they go out to the middle of the Monongahela River and find a little bit of iron and a little bit of sulfur and other solids, where if you came closer to the river and the millions of gallons, and I think even their test expert testified billions of gallons of water.

In water pollution science, you must know what the effluent is going into in a rate of water flow not dissolve and evaporate the water to get the solids out and make these exhibits sound like these were actually solids.

All of the discharges in PICCO’s plant were in a liquid state, not solid.

And the fact is that what I tried to do is say to the Court, the word pollutant has a scientific present technology definition.

How can you charge a jury that we have no permit to discharge refuse, if in the science and technology today it is not refuse as that term is defined by the very science trying to work to clean up the stream.

Mr. Lucani would’ve testified and I cited on the brief the fact that Pennsylvania and the federal government defined pollutants as things above a certain standard, above a certain discharge rate, and Mr. Lucani continuously said “I cannot tell you if this is refuse since, Your Honor, you have told me I can’t talk about what it goes into and the rate of the flow of the stream, in other words, you can’t let me testify as an expert which I am trying to do.”

Well, this case doesn’t hinge on this one.

Harold Gondelman:

It doesn’t hinge on that but it hinges on this Your Honor, the question asked was if there was no permit program, is there a crime a committed?

Harold Gondelman:

I must first say that such a finding with I think about the Court’s approach to this case, the lower courts understanding of this case in light of Republic Steel and Standard Oil was that it’s like when he was in Bolivia they told him that he couldn’t carry a cigarette lighter without a permit.

He went down to get the cigarette lighter, they say “we don’t have permits” they confiscated the cigarette lighter, and this is the way this whole case was tried.

The court continually said to me that whether we —

Byron R. White:

I think one thing that you — if you were just going to get to is staying that Court of Appeals judgment on the ground of refuse, but something else that you, I think you have to reach some other grounds as distinguished?

Harold Gondelman:

I don’t have to reach another ground Your Honor, what I’m saying is that under these circumstances, the Court of Appeals has said that without a permit program and that I should be entitled to prove whether or not there was a permit program in effect, because after all the regulations and the statute itself.

Unfortunately, the Government doesn’t quote these things completely to the Court, if they read the complete provided further however quote of the Act of 1899, incidentally it’s interesting that up until 1969, this was the Rivers and Harbors Act of 1899.

Congress has not amended that Act.

The Government has amended it by continually referring to it as the Refuse Act.

It becomes the Refuse Act on December 23, 1970 in the Presidential Proclamation when he referred to the Refuse Act of 1899, but the Act itself Section 13 says “and provided further that the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby.”

The Government hasn’t read the next clause to you comma “may permit that deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him,” then it says “provided applications made to him prior to the deposit of such material.”

Now, the courts had been, the lower courts especially have been very concerned about whether the phrase comes after the semicolon or before the semicolon, I don’t know how anyone would diagram this sentence at all.

It would be an impossibility but it certainly seems to me that as the phrases flow the Secretary may permit the deposit of materials within limits to be defined and under conditions prescribed by him.

And what we find actually is that in 413 of the Act that is 33 U.S.C. 413.

“The Department of Justice shall conduct the legal proceedings under Section 407 and it shall be the duty of United States attorneys to vigorously prosecute all offenders against the same.”

This was passed on March 3, 1899 with the Act we’re concerned about.

I happened to check, I find that there’re 28 Attorneys General to the United States, five of whom have graced this Honorable Court, and yet we find that no vigorous prosecution except for the Act of 1899 affecting navigation.

Next we find, Section 419, this was a new statute passed in 1905 in which Congress said “The Secretary of the Army is authorized and empowered to prescribe regulations to govern the transportation and dumping into any navigable waters, or waters adjacent there to have dredging the earth’s garbage and other refuse materials of every kind and description.”

The exact language in the Act of Section 407, the Secretary must prescribe regulations concerning the dumping among other things other refuse materials of every kind or description whenever in his judgment navigation will not be affected thereby.

So I say that the Secretary of the Army, if this was a pollution statute and if we require the permit, he had a duty to set forth in regulations what the permit would be.

I offered these exhibits in evidence and they’re part of my brief.

I think they’re exhibit 7, 8 and 9.

In 1939 and this comes to the Court of Appeals argument, Justice White, that the administrative rulings and interpretations caused PICCO not to apply for a permit any more than ask if anything else were required.

In 1939, the information circular says “applications for authority to execute work or erect structures into navigable waters of the United States” nothing about pollution in this circular.

This was secured by subpoena to the Corps of Engineers to bring with them all of the regulations they had ever published under Section 407, this they brought.

Potter Stewart:

And what was the date of that?

Harold Gondelman:

This was 1939, Mr. Justice Stewart.

Now, then brought to me, since we hear that the regulation was somehow changed in 1968 after some of the decisions of this Court which went beyond the factual situations in those cases.

They then show how well they amended it in 1968, permits for work in navigable waters.

This is the administrative ruling and publication which was given to everyone.

Then we find, now we say that this is after the Presidential Proclamation which incidentally had a moratorium in the date you asked about, Justice Blackmun, was very important.

Harold Gondelman:

These informations are filed in April 1971.

In December, the President issued an order to implement a permit program and you had until July 1st to apply for a permit, so that under the President’s own proclamation of December 23, there was an attempted moratorium to get people to now understand what had never been the law of this country that you needed a permit, because in 1971, the same regulation now says permits for work and structures in and for discharge or deposits into navigable water.

And now we get to the need for a permit and it’s not a letter like Judge Teitelbaum kept telling me, but the permits are 5, 6 and 7 pages and require thousands and thousands of dollars to determine the quantity of the effluent, the vast technological data that is needed in order to apply for a permit.

Lewis F. Powell, Jr.:

Those regulations, they’re in the record I take it?

Harold Gondelman:

They’re only in the record in this way Justice Black — Powell that I offered them, they were put in this envelope and I have added them to my brief, and therefore, you will find simply the cover as an appendix to my brief.

I did not duplicate it because I was afraid the brief would simply get out of hand.

But you find that exhibit 9 as the 1971 regulation, exhibit 8 the 1968 regulation.

I have duplicated a few sections which show that — actually the regulation says since Republic Steel, the Secretary of the Army must now with the Corps of Engineers find out how they get Industry to pay for dredging the Calumet River in effect, because the solids were building up.

Potter Stewart:

Did you just say Mr. Gondelman that you offered these regulations and in evidence at the trial?

Harold Gondelman:

Yes, Your Honor.

Potter Stewart:

Isn’t that kind of an unusual thing to do?

I can imagine the regulations might have a bearing on the judge’s determination of the legal point, but ordinarily you wouldn’t offer them for use of the jury.

Harold Gondelman:

Only, Your Honor, if the theory as I have it is that the finder of fact, that we’re going to a jury. Under the Court’s theory of this case, there was really no point in trying and I think you plead guilty because you have no defense.

You don’t have a permit he says this thru “the only way you can avoid liability and criminal culpability is show me if you have a permit, or that you didn’t know that you were putting this stuff in the river.”

Now, the fact is we knew we were putting it in the river and we knew that we didn’t have a permit, but I was offering in evidence at the trial a number of things.

We’re talking now about scienter, I thought I would get a charge on mens rea because it’s reserved.

This Honorable Court hasn’t decided whether it’s malum prohibitum, if it is of course then all Industry should’ve been closed and for 70 years in this country.

But if there is any scienter required I felt that the actual publications of the government of the United States telling us whether we needed a permit would be necessary to prove in the court.

Not only that —

Warren E. Burger:

We’ll resume at that point after lunch.

Harold Gondelman:

Okay, thank you.[Lunch Recess]

Warren E. Burger:

You may proceed, and may I suggest to you that your time is running out and the merits aren’t really the important factor here.

The only issue before the Court now is whether the case should go back to the District Court for a new trial and that’s a limited aspect of the merits.

Harold Gondelman:

Or really, whether the case has a criminal violation inherent in it at all, Mr. Chief Justice, and the point —

Warren E. Burger:

And did you cross-petition?

Harold Gondelman:

I did not cross-petition, however, the —

Warren E. Burger:

Then let’s just stay at the — let’s concentrate, you’ve only got about 11 minutes left to you.

Harold Gondelman:

I’ll cover it in less time than that.

We have to look at the opinion of the Court of Appeals to see what this Court granted certiorari from, and the Court of Appeals specifically held that the due process violations, in answer to Mr. Justice Rehnquist’s questions, how did I offer this?

The fact that I offered this in the trial is what this Court of Appeals and that is what is now before this Court, I may respectfully suggest, because the Court of Appeals held two things.

Harold Gondelman:

One, Congress never intended a crime under the facts of this case.

From that the Government has appealed and that is what is before this Court, so the Court must now decide whether a crime has been committed.

Warren E. Burger:

Well, why did the Court of Appeals sent it back to the District Court if no crime — if their holding was definitively that no crime has been committed?

Harold Gondelman:

Because they held that at least offers of proof should have been affirmatively allowed.

Warren E. Burger:

But, there was error in the rejection of evidence?

Harold Gondelman:

That is correct.

And if the evidence, the effect of the opinion of the Court of Appeals is if I can prove the exhibits which I shown this Court namely that there was no permit program, that the Corps of Engineers did not believe that a permit program affecting pollution rather than navigation was necessary, that there was no crime committed under facts of this case.

And I think that by reversing, they simply say “put that evidence before a court” and I’m entitled to a directive verdict.

Warren E. Burger:

But, that’s before the District Court, not this Court.

Harold Gondelman:

That would be before the District Court unless this Court were to find as the Court of Appeals found that if there was no permit program which is throughout everybody but the Department of Justice agrees that there was no permit program.

And it is definitely before this Court because the second holding of the Court of Appeals is that the circumstances here demonstrate that no crime was committed.

And in that connection, they discussed the regulations of the Corps of Engineers.

They discussed the lack of any affirmative permit program.

They discussed the fact that we were affirmatively told that they was no permit program required until 1970, and then in the third part of the opinion it says “even if the Act of 1899 were construed to make PICCO’s activities criminal, due process considerations would require a reversal” and in that situation he says that PICCO acclaims that it was misled by interpretation given to the statute by the Corps of Engineers, and this is where we get to the offers of evidence, none of which was admitted in the court below, but which are attached to the brief for the consideration of this Court.

So I do believe that the Government’s petition for cert and this Court having granted cert directly places before this Court.

Was a crime committed at all if the authors in the court below had been allowed?

Now, I think we briefly ought to get to the effect of what the Government is saying here.

Since Taylor versus Reeser (ph), the Government has been enjoined from issuing permits.

Now, if we understand the Government’s argument today, then under the administrative absolutism that the Department of Justice as it has, every Industry in this country since the injunction has been issued where no permits are now available by a court injunction, every Industry that has been discharging without a permit is guilty of a crime obviously.

It has to be the logical conclusion of the Government’s argument before this Court today.

We know that you cannot get a permit today because of that decision, it’s on appeal but at least for a year, a year and a half now nobody could get a permit.

And yet a U.S. Attorney certainly could prosecute any Industry discharging into a navigable stream matters which did not affect navigation because they don’t have a permit, because after all, what difference does it make?

They don’t have a permit only because the court has enjoined the Government permission legally?

And if they have not committed — if Industry has not committed a crime during the pendency of that injunction, then why doesn’t it logically follow that before the injunction if there was no permit program, there also was no crime committed.

Mr. Rockel says, the director of the EPA says that there’s no question that no one could get a permit under the Act of 1899, I have his citation in my brief, so that without a permit program because of court injunction or prior to that, certainly there is no crime committed here and that issue has been decided by the Court of Appeals.

The court below took the position completely that it does not make any difference whether we could get a permit.

The only way that we could not violate the law is not to discharge effluent into a river.

I suggest that if acquisition had been taken by United States Attorney in 1944 when Industry was going full blast to supply the war material for the boys in Omaha Beach in World War II, and the effect of that type of criminal prosecution would have been to advice Industry to close its doors, the U.S. Attorney would’ve been subject to uncertain great criticism if not internment for having taking an American activities approaches to the law.

The fact that they didn’t in 1943, 1944 in fact the fact that the Secretary of Army awarded — awards to Industry during those periods are national crisis certainly would indicate that there is no criminal violation and they compounded in this case.

The court below charged the jury that if the Secretary of the Army in his discretion decided not to issue permits, despite the fact that my entire offer was to show that the Secretary of the Army had actually exercised this discretion saying that no permits were required.

Harold Gondelman:

In fact in the 1968 regulations when they talk about the Republic Steel case, the only change the core of engineers saw was that under Republic Steel, they were now obligated to assess who should pay dredging.

I think what has happened in this situation and the metamorphosis so called, they change from the Rivers and Harbors Act to a Refuse Act unfortunately comes abide in this way.

Republic Steel came before this Court on a petition by the Government of the United States and if you read their briefs, you will find that they affirmatively told this Court that they are not in a pollution case, they are in a navigation case.

The entire brief on both sides talk about navigation, the opinion of this Court says we have pollution statute but that is over to think those were the facts that were before this Court.

Then you — from there, we are led to Standard Oil, an accidental discharge in which the Court defined good gasoline aviation fuel as a pollutant.

From those two cases we have now jumped the complete line to say that we now have in the United States and as I said, now they talk about a Refuse Act, but I think that when you see the Presidential regulations proclamation of December 23, 1970, you must ask yourself why did the President of the United States take time from a busy schedule to issue a proclamation implementing a permit program and talking about all of the laws dealing with water control in the implementation of that program. He did it because there was no such program.

The Water Pollution Control Act of ‘65, ‘70, ‘72 can be harmoniously read with the Act of 1899 if one defines pollution in terms of those acts.

This case has no impact whatsoever on future cases because of the Act of 1972, the Government admits that.

This case and the thing that it must be understood here is that this case is not a pollution case.

It has been brought here without attractiveness on the times of today, but the fact is that it is not a pollution case because if we are complying with state and federal standards concerning what went into the river, we could put the same thing into the Monongahela River today and I offer to prove that that we did in 1970 because they are within the standards of the Government of the United States.

The reply brief of the government again misrepresents what I offered to prove.

It said that I offered to prove that we would comply with the 1974 standards that is not the offer of proof.

Commonwealth of Pennsylvania passed clean streams legislation before the federal government found out that there was a problem.

Our Act was passed in 1937 the Federal Act 1948.

I offer to prove that under the present Pennsylvania standards which are among the highest in the country, they intelligently to deal with the economy and the ecology and the technology that is available said by December 31, 1974 these will be the new standards that will be applicable to effluent discharges in streams of this Commonwealth.

I offer to prove that PICCO is already in the process and was when the canoes floated up and down the river ready in the process of building a $300,000.00 additional water treatment plant to meet the new standards which were effective and will be effective December 31, 1974.

You do not have as the Government untruthfully tells this Court in its reply brief, the largest polluter in the Monongahela River.

You have a company that has accepted its responsibilities, understands its responsibilities and the only thing the Government has done in this prosecution has attempted to turn off an industry that recognizes that it is trying to be a good citizen in this country and comply with the water control programs of the federal on state government.

Mr. Gondelman, I don’t know if the appeals rely heavily on its conclusion that even if an application of pendent had been made, no pendent could’ve been obtained because the court’s opinion said pendents were unavailable.

In your view is the record clear on that or is that disputed in the record?

Harold Gondelman:

It was disputed in the record.

Excuse me Your Honor, it was disputed but I tried to prove it in two ways.

First of all, exhibit G which I offered in evidence and attempted to argue to the jury shows the schedule of permits, the dollar cost of all permits.

There is nothing in exhibit G that would indicate that this permit would’ve been required or that there was a charge for it or included in exhibit G. The other is the twofold, first that Mr. Rockel says and I have that as part of my brief actually in an interview had said, I think it’s on page 7 (a) of my brief Your Honor, and I’m prepared to prove this.

Mr. Rockel has theoretically should know something about the Act of 1899 since today he is the one in charge of the administration of the program, was asked if there was an overlapping in the statutes.

Second paragraph he says “it really isn’t entirely fair to say that the reason a person is being sued under the Refuse Act is because they don’t have a permit.

They couldn’t get one if they wanted to.”

Until the permit program of the Corps of engineers was in that slate last year, after the Presidential Proclamation, we didn’t have any permit program for the discharge of waste into a stream.

So that under his own admission, under the exhibits which I did offer and I would be pleased to leave these — these are maintained by me, I didn’t realize the Court of Appeals accepted that.

Mr. Gondelman, let’s assume you were dumping solid — dumping solid metal of some kind that unquestionably was a pollutant in the river.

Let’s just assume that you had been.

Would you say that there was any doubt into the Refuse Act which you could be prosecuted?

Harold Gondelman:

No sir, because if I were dumping a solid into the river then we are under the Republic Steel case and the history, and then Republic Steel since 1904.

Then it wouldn’t make any difference whether you had a permit or whether you applied for a permit or not, or whether there was a permit program or not, wouldn’t it?

Harold Gondelman:

Well, it would in this sense, Your Honor.

Well, I’ll just you again.

Now, you’re dumping solids in the river, let’s assume there was no permit program at the time that you dumped the solids in the river.

Now, could you be prosecuted under this law or not?

Harold Gondelman:

If there was no permit program whatsoever?

Yes.

Harold Gondelman:

I don’t think we could be prosecuted under this law.

Are you saying and we must then construe this law as meaning that unless there’s a permit program, you may not be prosecuted even if you were dumping admittedly polluted material industry?

Harold Gondelman:

Right, and then we would not have this case.

That’s why I said originally I —

What do you mean you wouldn’t have this case?

Harold Gondelman:

Well, because this case and Your Honor’s case are two different cases, and the facts of my case —

Well, there aren’t two different cases if you think for example that the question of whether this was refuse is foreclosed?

Harold Gondelman:

No, you don’t have this case because, Your Honor, since 1899 everybody in this county knew that the act of 1899 affected the discharge of solids into a stream.

The Republic Steel case only made new law because it took a civil procedure and permitted an injunction.

But again your argument turns whether or not a permit program is essential to permit prosecution under the Refuse Act.

Harold Gondelman:

Not complete, my argue —

But rather substantial —

Harold Gondelman:

My argument is —

Well, let’s assume for the moment then that you say a permit program is not essential permit prosecution under the Act and that you may be prosecuted even if there was no way of getting a permit?

Harold Gondelman:

What I’m saying Your Honor, and the reason I can’t fit a factual situation into your hypothetical factual situation is simply this, it doesn’t stop with the narrow factual situation you’re presenting to me, I respectfully suggest.

What I’m saying to you is this, change your factual situation just a little bit for me and say that solids are being dumped into the river and for 70 years the Corps of Engineers says you don’t need a permit to dump those solids into the river, and then have a criminal prosecution, and then I say of course the Government can not lead an industry into entrapment.

So sure enough, you’re really saying then that it’s not just the existence of a permit program. It’s an affirmative representation that you don’t need a permit or anything else for this.

It’s just as though you had a permit.

Harold Gondelman:

It’s an affirmative — the Court of Appeals said we were misled, and that is a very basic factor.

Well, you’re saying in effect, you’re saying you had a permit.

Harold Gondelman:

And if effect I’m saying we had a permit because the State want it.

And they ended to be prosecuted when you had a permit is the denial of due process that’s really your case?

Harold Gondelman:

Basically, that is second part of my case that is correct Your Honor.

Well, is that any different from the first?

Harold Gondelman:

It is in part, because in the first situation we’re saying that without any permit program whatsoever.

Yes, but that doesn’t seem to hold water is it, if you are dumping real solids in the river?

Harold Gondelman:

Well, it would hold real solids, you see, but not real water.

I mean we have to talk about water and —

Well, if you dump that solids in the river, it wouldn’t make any difference whether there was a permit program or not?

Harold Gondelman:

Unless the Government affirmatively misled the Industry into believing they could do —

Well, that’s the secondary?

Harold Gondelman:

Fine, I’d stand on that argument as well.

Thank Your Honor.

Warren E. Burger:

I’m sorry Mr. Gondelman.

Mr. Reynolds you have anything further?

William Bradford Reynolds:

Just one or two points Mr. Chief Justice.

I think that with —

William O. Douglas:

You don’t refer in your briefs to the all well-established federal law of public nuisance in navigable streams.

Was that considered below or argued at all?

William Bradford Reynolds:

No, Your Honor, that — this case was exclusively under the statute and the public nuisance federal law was not involved in this particular case.

Warren E. Burger:

Conceivably, you might have been able to get an injunction under the law of nuisance that Mr. Justice Douglas was suggesting?

William Bradford Reynolds:

Conceivably, I think that —

Warren E. Burger:

But that couldn’t be a criminal prosecution?

William Bradford Reynolds:

— Illinois and the City of Milwaukee I believe this Court indicated that under the — there is a federal law of nuisance which conceivably would be available, but this was an action brought under the federal statute and that was not involved.

I just want to make the point that the Corps of Engineers after 1968, after this Court decided the Standard Oil case and made it clear that the Refuse Act applied to non-impeding — non-navigation impeding discharges and at that time it changed its attitude with respect to its responsibilities, this 1968 regulation which Mr. Gondelman showed to the Court was withdrawn.

It instituted new regulations which put — whereby everyone was put on notice of the fact that the Corps was now considering pollution matters, conservation matters with respect to applications for permission to use navigable waters and this was made crystal clear with respect to the Refuse Act itself and the notice that we have appended to the reply brief in July of 1970 where it was made — it was clear that there was a permit available at the time of these offenses and if even the most superficial inquiry had been made by the company of the Corps, assuming that they had some doubt as to whether the law did in fact apply to this particular discharge.

If they made the most superficial inquiry, they would have been notified at that time that there was in fact a permit available and one that they should have gotten before making these discharges.

I would point out just in closing that in fact in November of 1970 which is after the time of these offenses, Mr. Justice Blackmun, the dates you were talking about earlier that in November of 1970 the Corps explicitly advised this company that their discharges from this plant into the Monongahela River was in violation of the Refuse Act without a permit and they would need a permit so that the permit — the permits were available and had they made any kind of inquiry, they could’ve gotten this permit.

They didn’t and in the absence of doing so, we think that it was proper to — the conviction was proper under the Refuse Act.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.

You may leave them if you wish.