The opinion of the court was delivered by: BRODERICK
RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE.
Defendants Guido Frezzo, James L. Frezzo, and Frezzo Brothers, Inc. (hereinafter "Frezzo Brothers") have petitioned this Court pursuant to 28 U.S.C. § 2255 to vacate and set aside their sentences pursuant to their convictions for discharging pollutants into navigable waters without a permit.
(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; 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 Brothers at the time of the alleged offenses, and that Frezzo Brothers owned the property in question or operated the holding tank in question at the time of the alleged offenses.
Finding no merit in these contentions, this Court denied the motions. The Court imposed the following sentences: thirty days imprisonment and a $ 25,000 fine for both Guido Frezzo and James L. Frezzo, and a $ 50,000 fine for Frezzo Brothers, Inc. 461 F. Supp. 266, 268 (E.D.Pa. 1978). The Court's judgment was affirmed by the Third Circuit, 602 F.2d 1123 (3d Cir. 1979). Rehearing was denied, and defendants sought certiorari, which was also denied, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980). Defendants had obtained new defense counsel prior to filing the aforesaid and instant petitions. In these petitions, the defendants raised for the first time the argument that they were exempt from 33 U.S.C. § 1311(a), which makes it unlawful to discharge pollutants into navigable waters without a permit. Defendants contend that they were exempt by virtue of 40 C.F.R. § 125.4(i) (1978), which was in effect at the time the petitioners were indicted and convicted but has subsequently been revised. The government moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), contending that petitioners had failed to state a claim upon which relief could be granted. This Court granted the government's motion to dismiss, 491 F. Supp. 1339.
Defendants appealed the dismissal to the Third Circuit, which reversed the dismissal and remanded to this Court for further factual inquiry regarding the status of defendants' business operation and its characterization pursuant to 40 C.F.R. § 125.4(i) and for further consideration of the petitions, 642 F.2d 59 (3d Cir. 1981). For the reasons hereinafter set forth, the Court will enter an Order denying defendants' petitions for relief.
The defendants, in order to obtain relief pursuant to 28 U.S.C. § 2255 must show that their conviction and sentence is in some way defective because it was unconstitutional, illegal, or "otherwise subject to collateral attack," 28 U.S.C. § 2255. The petitioner bears the burden of persuasion to show the infirmity of his conviction. See Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963); United States v. Bremer, 207 F.2d 247 (9th Cir. 1953); Walden v. United States, 418 F. Supp. 386 (E.D.Pa. 1976). Here, the defendants claim the protection of a regulation which they allege exempted them from the statute which the jury found beyond a reasonable doubt that they violated. As parties claiming this exception, they bear the burden to demonstrate that they fall within the exception. See United States v. Cianciulli, 482 F. Supp. 585, 613 (E.D.Pa. 1979), aff'd 624 F.2d 1091 (3d Cir. 1980), cert. denied, 449 U.S. 1079, 101 S. Ct. 859, 66 L. Ed. 2d 802 (1981); United States v. Rowlette, 397 F.2d 475 (7th Cir. 1968).
As the United States Supreme Court recently stated in United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816, 50 U.S.L.W. 4388 (1982):
For this reason, we have long and consistently affirmed that a collateral challenge may not do service for an appeal.
50 U.S.L.W. at 4391 (citations omitted). See also, United States v. Addonizio, 442 U.S. 178, 184, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979). In Frady, the Court held that a convicted defendant seeking to obtain collateral relief based on trial errors to which no contemporaneous objection was made "must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." 50 U.S.L.W. at 4392 (emphasis added). Though the instant case involves failure to raise a defense based upon a construction of a regulation rather than a failure to object to allegedly erroneous jury charges, Frady is instructive. Frady and its predecessors set forth a two-pronged standard for obtaining collateral relief. The petitioner must show a reason for his failure to raise the collateral challenge at trial and appeal and he must show that he was prejudiced by the procedural shortcoming (in this case, the failure to raise an alleged regulatory exemption). Defendants have met neither prong of the Frady test. They were represented by competent counsel and have not shown that the failure to raise the 40 C.F.R. § 125.1, et seq. defense amounted to ineffective assistance of counsel, see pp. 724-725, infra. Nor have defendants shown any other good reason for their failure to raise this defense at trial or on appeal. Second, the petitioners have not shown that they were prejudiced by the failure to raise the regulatory defense because the defense is without merit, see pp. 721-725, infra. Therefore, the defendants have failed to meet their burden to show that their conviction and sentence should be vacated.
Defendants were tried before a jury in October 1978, for violations of the Water Pollution Act, specifically 33 U.S.C. § 1311(a) which provides:
(a) Except as in compliance with this section and sections 1312, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.
33 U.S.C. § 1319(c) further provides:
Any person who willfully or negligently violates section 1311 . . . of this title shall be punished by a fine of not less than $ 2,500 nor more than $ 25,000 per day of violation, or by imprisonment for not more than one year, or by both.
The jury, during the Court's instructions, was read the indictment which alleged that on certain dates in 1977 and 1978, the defendants "did willfully and negligently discharge pollutants, that is, wastewaters from mushroom compost manufacturing operations, into the waters of the East Branch of the White Clay Creek, a navigable water of the United States, without having obtained a permit from the Administrator of the Environmental Protection Agency for said discharge." The Court then instructed the jury as to the elements of the crime and as to the statutory definition of "pollutant," a definition that encompasses "dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into the water." 33 U.S.C. § 1362(6).
The jury was told "If you find that a substance allegedly discharged by a defendant is any one or more of the items specified in the statute's definition of 'pollutant,' then you may find that the substance is a pollutant." The jury was also instructed as to the statutory definition of a point source, (33 U.S.C. § 1362(14)), navigable waters (33 U.S.C. § 1362(7)), the terms "willfully" and "negligently," and the meaning of intent and specific intent under the criminal law. So informed, the jury returned a verdict of guilty, finding that the defendants had willfully or negligently discharged pollutants from a point source into navigable waters without a permit. In fact, the evidence at trial showed that defendants never applied for a permit, a fact not contested by defendants' counsel. Furthermore, counsel for the defendants never suggested at trial, in post-trial motions or argument or on the initial appeal to the Third Circuit, that the defendants were in any way exempt from the permit requirements of 33 U.S.C. § 1311(a) and 33 U.S.C. § 1342.
Section 402 of the Water Pollution Act, 33 U.S.C. § 1342, sets forth the permit system of the Act (known as the National Pollutant Discharge Elimination System or NPDES). The statute provides, in relevant part,
The Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.
Section 501 of the Act, 33 U.S.C. § 1361(a) provides
The Administrator [of the Environmental Protection Agency] is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter.
Pursuant to these grants of authority, the Administrator and the EPA promulgated regulations governing the issuance of permits allowing for some discharges of pollutants that would, in the absence of having been issued a permit, violate 33 U.S.C. § 1311(a) and exempting some discharge activities from permit requirements. These regulations, at the time of the trial of the Frezzo Brothers, were codified at 40 C.F.R. § 125.1, et seq. The issuance of a permit did not and does not give the permit-holder a "license to pollute." Rather, the permit is issued only after a hearing and is designed to limit the amount of pollution where, for technological reasons, some pollution is deemed unavoidable. All permits issued under the Water Pollution Act planned and provided for decreased pollution discharges in accordance with technology improvement and were designed to meet the Act's overall goal of ending discharges of pollutants into the Nation's waters by ...