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November 22, 1978

FREZZO BROTHERS, INC., Guido Frezzo, James L. Frezzo

The opinion of the court was delivered by: BRODERICK


Defendants, Frezzo Brothers, Inc. (Frezzo Bros.), Guido Frezzo (Guido) and James L. Frezzo (James), were found guilty by a jury on all six counts of an indictment charging them with willfully or negligently discharging pollutants in violation of Sections 301(a) and 309(c) of the Federal Water Pollution Control Act Amendments of 1972 (the Act), 33 U.S.C. §§ 1311(a), 1319(c) (1970 ed. Supp. IV). Defendants have filed a motion for judgment of acquittal. In the alternative, they have moved for a new trial. Oral argument was had on the motions. For the reasons hereinafter set forth, defendants' motions will be denied.

 I. Motion for Judgment of Acquittal.

 In their motion for judgment of acquittal, defendants make the following contentions:

 (A) That the Court erred in denying the defendants' pretrial motion to dismiss the indictment for failure of the Administrator of the Environmental Protection Agency (EPA) either to notify the defendants of alleged violations or to institute a civil suit against them, prior to the institution of criminal proceedings;

 (B) That the Court erred in denying the defendants' pretrial motion to dismiss the indictment on the ground that there were no effluent standards applicable to defendants; *fn1" and

 (C) That there was insufficient evidence presented to prove that the alleged discharge of pollutants was caused either willfully or negligently by any of the defendants, that any of the defendants discharged the pollutants, that the individual defendants were either owners or corporate officers of Frezzo Bros. at the time of the alleged offenses, and that Frezzo Bros. owned the property in question or operated the holding tank in question at the time of the alleged offenses.

 In connection with the defendants' contentions that the issuance of an order or the institution of a civil suit by the Administrator is a prerequisite to the filing of a criminal prosecution, we agree with the decision of the court in United States v. Phelps Dodge Corp., 391 F. Supp. 1181 (D.Ariz.1975), which considered and rejected this same contention. In Phelps Dodge, the Court concluded that the Administrator is "not required to proceed first to effect a correction by civil means before instituting criminal proceedings." Id. at 1184. Thus, we find that we correctly denied the defendants' motion to dismiss.

 In connection with the defendants' contention that the indictment should have been dismissed because of the lack of effluent standards applicable to the defendants, we read Section 301(a) of the Act as clearly prohibiting the discharge of pollutants without a permit by any person, except as in compliance with certain sections of the Act which the defendants do not contend are applicable. 33 U.S.C. §§ 1311(a) (1970 ed., Supp. IV). The defendants acknowledge that they neither have a permit nor have they applied for one. In interpreting Section 301(a) of the Act, the Supreme Court has stated that "it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms." EPA v. State Water Resources Control Board, 426 U.S. 200, 205, 96 S. Ct. 2022, 2025, 48 L. Ed. 2d 578 (1976); See Train v. Colorado Public Interest Research Group, 426 U.S. 1, 7, 96 S. Ct. 1938, 48 L. Ed. 2d 434 (1976); Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1374, 186 U.S.App.D.C. 147 (1977) ("the legislative history (of the Act) makes clear that Congress intended the . . . permit to be the only means by which a discharger (of pollutants) . . . may escape the total prohibition of § 301(a)"); Bethlehem Steel Corp. v. Train, 544 F.2d 657, 659 (3d Cir.), Cert. denied, 430 U.S. 975, 97 S. Ct. 1666, 52 L. Ed. 2d 369 (1976) ("all discharges of pollutants must be authorized by a permit . . . ."). Because the defendants admit that they never obtained or applied for a permit, any discharge of pollutants by them would be unlawful under Section 301(a), even though no effluent standards are applicable to them. Thus, we correctly denied the defendants' motion to dismiss on the ground that there were no applicable effluent standards.

 In connection with defendants' contention that the evidence was insufficient, we find that the evidence produced at trial, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Armocida, 515 F.2d 29, 46 (3d Cir.), Cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), is more than sufficient to support the verdict. We summarize it as follows:

 The defendants, Guido and James, are President and Secretary, respectively, of the defendant corporation, Frezzo Bros., a family business formed in the 1950's engaged in the growing of mushrooms and the manufacturing of mushroom compost necessary for growing mushrooms. The primary ingredient of mushroom compost is horse manure. The Frezzo Bros. property (the Frezzo property) is located on the east side of Penn Green Road, near Avondale, Chester County, Pennsylvania. A concrete holding tank constructed on the property in 1971 gathers the water runoff from the compost and, by a system of pumps, recirculates the water runoff back onto the compost. In addition, a storm water runoff system separate from the compost operations carries rainwater from the property, under Penn Green Road through a pipe which runs for approximately 200 feet from the Frezzo property into an unnamed tributary of the East Branch of the White Clay Creek. The White Clay Creek crosses the Delaware state line and runs into the Christina River, which in turn runs into the Delaware River. On each of the six dates charged in the indictment, runoff from the compost pile made its way into the storm water runoff system and was carried through the pipe into the tributary of the White Clay Creek. A channel box is located about ten feet west of the Penn Green Road, across the street from the Frezzo property. By lifting the cover on this channel box, one can observe the drainage from Frezzo Bros.' storm water runoff system as it flows through the pipe toward the White Clay Creek.

 The evidence presented by the Government showed that samples of the discharge from the Frezzo property were taken on each of the six dates charged in the indictment, and many of these samples were introduced as exhibits at trial. The testimony and stipulations of various chemists and physical scientists demonstrated that chemical and bacteriological tests were properly conducted on each of the samples and that the discharges were "sewage", inasmuch as the results of the tests showed that the samples contained higher concentrations of pollution-producing chemicals and bacteria than untreated human sewage. In addition, one physical scientist testified that the test results clearly indicated that the discharges contained "biological materials" and that the discharges were also "sewage". "Sewage" and "biological materials" are terms specifically included in the Act's definition of "pollutant". 33 U.S.C. § 1362(6) (1970 ed. Supp. IV).

 The Government introduced as exhibits at trial several photographs which showed not only the layout of the Frezzo property, but also the path that runoff from the compost pile would follow in entering the storm water runoff system, through which it would be carried from the Frezzo property through the channel box into the unnamed tributary of the East Branch of the White Clay Creek. One witness testified that he had actually walked along the path of the pipe from Penn Green Road to the pipe's end at the tributary and that there were no other mushroom manufacturers upgrade of the channel box. He further testified that results of analyses of samples from the channel box and from the White Clay Creek substantiated his conclusion that the pollution in the White Clay Creek came from the Frezzo property. Therefore, his stated opinion was that the pollution of the White Clay Creek was due primarily to the discharge from the Frezzo property. In addition, there was testimony concerning the amount of rainfall in the area and that the holding tank was not large enough to contain normal rainfall.

 Testimony was presented by several witnesses that on many occasions, commencing as far back as 1970, the defendants in this case had been investigated, visited and confronted by a number of state and county employees concerning the fact that the stream in question was being polluted by runoff ...

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