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UNITED STATES v. PENNSYLVANIA INDUS. CHEM. CORP.

July 26, 1971

UNITED STATES of America
v.
PENNSYLVANIA INDUSTRIAL CHEMICAL CORPORATION, a Corporation


Teitelbaum, District Judge.


The opinion of the court was delivered by: TEITELBAUM

TEITELBAUM, District Judge.

 The defendant, Pennsylvania Industrial Chemical Corporation ("PICO"), was convicted on four counts of discharging refuse matter into a navigable water of the United States in violation of 33 U.S.C. § 407, commonly known as the Rivers and Harbors or Refuse Act of 1899. *fn1" The defendant filed no post-trial motions. However, in view of the novelty of the legal issues involved, it is deemed appropriate to file this memorandum opinion; focusing, in part, on matters raised on defendant's Motion for Judgment of Acquittal.

 Factually, the issues were few and simple. The information charged PICO, in four counts, with discharging and depositing refuse matter into the Monongahela River. Counts I and II dealt with effluent sampled from a certain concrete pipe on August 7 and 19, 1970, respectively, and Counts III and IV dealt with effluents sampled from a certain iron pipe on August 7 and 19, 1970, respectively. It was stipulated that PICO was the owner of a manufacturing establishment (a chemical plant) situated on the banks of the Monongahela River, that the concrete pipe and the iron pipe from which the discharges were sampled were owned by PICO, and that the Monongahela River is a navigable water of the United States. It was uncontroverted that while the concrete pipe served not only the defendant's manufacturing establishment but also a nearby residential area comprised of approximately six to eight houses, the iron pipe served the defendant's chemical plant exclusively. It was further uncontroverted that the defendant had not secured and in fact, had not applied for, a permit prior to the discharges. The controverted factual issues were as to the nature of the sampled discharges. The Government's expert characterized each of the samples as "industrial waste". The defendant's expert expressed skepticism at conclusively characterizing the effluent sampled from the concrete pipe on August 7, 1970 as "industrial discharge". He conceded that the other three samples were properly characterizable as "industrial discharge". He distinguished, however, between "industrial waste" and "industrial discharge". He treated "industrial discharge" as a term applicable to the effluent from the time it left the pipe until it reached the river and considered that whether or not it was "industrial waste" depended upon its effect upon the river. As applied to the instant case, this is a distinction without a difference. The Refuse Act prohibits the discharge of any refuse matter, regardless of its effect, without a permit. This blanket prohibition is a clear expression of Congressional concern with the cumulative effect of many individually insignificant discharges. Thus, the effect of the particular effluent upon the river is irrelevant and testimony concerning it was excluded. When the Congress interdicted "any" discharge, it meant just that: that without a permit absolutely no amount of discharge was lawful. The defendant's suggested definition of refuse matter relating to the effect on the navigable water of the "industrial discharge" will be further dealt with hereinafter with regard to the defendant's Motion for Judgment of Acquittal.

 The Court's charge to the jury defined "refuse matter" as encompassing, in any amount, all foreign substances and pollutants, except those flowing from streets and sewers in a liquid state, including industrial waste. This composite definition, which undoubtedly undermined the defendant's distinction, was taken directly from the decisions of the Supreme Court in United States v. Standard Oil Co., 384 U.S. 224, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966) and United States v. Republic Steel Corp., 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903 (1960). The excepted refuse matter, i.e., that flowing from streets and sewers and passing therefrom in a liquid state was defined to the jury as meaning, "sewage", which again, was taken directly from Republic Steel in which the Supreme Court stated that,

 "Sewage" was defined to the jury as, generally, that water, filth, and feculent matter deriving usually from human and domestic waste, but not including industrial waste. *fn2" Not surprisingly, the jury's finding, which must be construed, in conformity with the jury's verdict, in the light most favorable to the Government, *fn3" was that each of the effluents was "industrial waste", not "sewage", and therefore refuse matter in violation of the Refuse Act.

 The defendant's Motion for Judgment of Acquittal at the close of the Government's case and renewed, in effect, after the close of all of the testimony, was based essentially on three grounds: (1) that both the concrete and iron pipes were "sewers" and therefore the refuse matter flowing therefrom was excepted from the prohibition of the Refuse Act; (2) that by the terms of the regulations adopted pursuant to the Refuse Act by the Secretary of the Army on April 7, 1971, the defendant had until July 1, 1971, to secure a permit to discharge refuse matter; and (3) that the matter which the defendant was discharging was in complete compliance with the water quality standards established by the Commonwealth of Pennsylvania and therefore not violative of the Act. The relevance of the regulations adopted by the Secretary and the water quality standards established by Pennsylvania, additionally, dogged the trial in the form of evidentiary offerings and rulings. At the trial both of them were regarded as irrelevant and were excluded from the evidence. An examination of each of these contentions follows.

 I. THE DEFINITION OF THE EXCEPTED REFUSE MATTER

 The defendant sought to define the excepted refuse matter as including any and all matters flowing in a liquid state from an underground conduit. To support its definition, it offered Webster's definition of "sewer": an artificial usually subterranean conduit to carry off water and waste matter. That definition is not doubted. The word "sewer", however, does not stand alone in the exception. It is refuse matter which flows from streets and sewers and passes therefrom in a liquid state which is excepted. And that refuse matter meant to the Supreme Court in Republic Steel simply "sewage". What becomes important, then, in determining what refuse matter is excepted is the determination not of the construction or location of a particular conduit, but rather what it carries off. Therefore, the defendant's offered definition and effect of the term "sewer" was rejected, and Republic Steel's definition of the excepted refuse matter was submitted to the jury. Defendant's contention that anything which flows from a pipe is excepted from the interdiction of the Act is untenable.

 II. THE RELEVANCE OF THE ABSENCE OF AN ESTABLISHED PERMIT PROGRAM

 The second ground of the defendant's contentions was that by virtue of the regulations *fn4" adopted by the Secretary of the Army on April 1, 1971, it had until July 1, 1971, to secure a permit to discharge refuse matter. Proposed and adopted expressly to establish a procedure for the issuance, pursuant to § 407 of the Refuse Act, of permits for discharges or deposits into navigable waters, the regulations, by § 209.131(d)(3), clearly provide that all persons who are required by § 407 to secure a permit must do so no later than July 1, 1971. This provision, the defendant argued, implicitly suspended the enforcement of the Refuse Act until that date. Section 209.131(d)(4), however, uncompromisingly refutes that contention. That subsection provides that,

 
"* * * the mere filing of an application requesting permission to discharge or deposit into navigable waters or tributaries thereof will not preclude legal action in ...

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