course of their trial. Their counsel filed pre-trial motions urging the dismissal of the indictment and the suppression of certain evidence. He also filed post-trial motions for judgment of acquittal, arrest of judgment, and for a new trial. After these motions were denied, he filed an appeal which briefed all of these issues. The petitioners, through their newly retained counsel, now claim that this representation was ineffective in light of the above quoted regulations. Although there is a question as to whether the manufacturing of mushroom compost is an "agricultural activity," there is no question that the regulations do not and did not exempt the discharge of the pollutants into the stream under the circumstances presented at the trial of this case.
The administrative history of these regulations, as reported in the Federal Register, 41 Fed.Reg. 7963 (1976), explicitly states that the sole intent of sections 125.4(i) and 125.53 of these regulations was to make it clear that the return flow of water used for irrigation purposes which contained pollutants was not exempt from the permit requirements of the Act. These sections of the regulations specifically subjected the return flow of irrigation water to the permit requirements of the Act, and exempted the natural runoff of rain water from these permit requirements.
The record in this case clearly shows that the discharge of pollutants for which the petitioners were convicted was not from the natural runoff of rain water from the petitioners' land. These discharges emanated from a concrete holding tank which was erected to collect the runoff from mushroom compost piles being used by the petitioners for the purpose of manufacturing compost. The various chemists and physical scientists who testified at the trial of this case classified the samples of the discharges into the stream as "sewage" because the results of the tests conducted by them showed that these samples contained higher concentrations of pollution producing chemicals and bacteria than untreated human sewage. There is no doubt that "sewage" is specifically included in the definition of "pollutant" as set forth in the Act. There was also testimony at the trial that as early as 1970 the petitioners 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 "sewage" from their mushroom composting operations.
We therefore find that pursuant to United States v. De Falco, No. 78-2126 (3d Cir. Dec. 28, 1979), the trial counsel for the petitioners exceeded the standard of "customary skill and knowledge which normally prevails at the time and place," and that the petitioners have failed to show any "specific prejudice" in that sections 125.4(i) and 125.53 of the regulations do not and did not exempt the activities of the petitioners from the permit requirements of the Act.
The petitioners also contend that their convictions violated due process because these sections of the EPA's regulations excluded their discharges into the stream from the permit requirements of the Act. Since we have already determined, however, that these sections of the regulations do not and did not exempt the discharges of the petitioners from the permit requirements of the Act, this claim is without merit.
The final contention that we must address is whether the petitioners' due process rights were violated because sections 125.4(i) and 125.53 of the regulations failed to provide the petitioners fair warning that their pollution activities were in violation of the Act. Petitioners contend that these sections of the regulations deprived them of fair warning that their conduct was criminal because they purported "to give notice to persons of common intelligence . . . that the . . . petitioners' activities were excluded from the Act's criminal sanctions." In essence, the petitioners contend that they were "affirmatively misled" by these regulations into believing that the Act did not require them to procure a permit. United States v. Pennsylvania Industrial Chemical Corporation, 411 U.S. 655, 93 S. Ct. 1804, 1816, 36 L. Ed. 2d 567 (1973). See Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965); Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959). Our review of the entire record in this case, however, reveals that the petitioners have never attempted to establish that they relied on these regulations in deciding not to apply for a permit. In fact, these regulations were never mentioned in the record until the petitioners filed a motion for a rehearing in the court of appeals after their original appeal had been decided adversely to them. Since the petitioners have not shown that they ever relied on these regulations, they cannot claim that the regulations would have led them to believe that their business activities were exempt from the permit requirements of the Act. United States v. United States Steel Corp., 482 F.2d 439 (7th Cir. 1973); Pennsylvania Industrial, supra. Furthermore, as we pointed out in United States v. Frezzo Bros., Inc., 461 F. Supp. 266 (E.D.Pa.1978), section 301(a) of the Act, 33 U.S.C.A. § 1311(a), makes it a crime to discharge pollutants without a permit, and the Act does not require that one who violates the Act receive any warning or notice that his actions are in violation of the Act.
We will therefore deny the petitioners' motion for relief under section 2255 or, alternatively, for writs of error coram nobis.
© 1992-2004 VersusLaw Inc.