United States v. Pennsylvania Industrial Chemical Corporation 8212 624

• Decision Date: 14 May 1973
• Docket Number: No. 72,72
• Citation: 36 L.Ed.2d 567,411 U.S. 655,93 S.Ct. 1804
• Parties: UNITED STATES, Petitioner, v. PENNSYLVANIA INDUSTRIAL CHEMICAL CORPORATION. —624
• Court: U.S. Supreme Court

411 U.S. 655

93 S.Ct. 1804

36 L.Ed.2d 567

UNITED STATES, Petitioner,

v PENNSYLVANIA INDUSTRIAL CHEMICAL CORPORATION.

No. 72—624.

Argued March 27, 1973.

Decided May 14, 1973.

Syllabus

After the District Court refused respondent's offers of proof of reliance on Army Corps of Engineers regulations limiting violations to those impeding navigation, respondent was convicted of violating § 13 of the Rivers and Harbors Act of 1899 by discharging industrial pollutants into a navigable river. The Court of Appeals reversed on the ground that § 13 did not apply absent formalized permit procedures or, alternatively, that respondent should have been allowed to prove that it was affirmatively misled by the Corps of Engineers regulations to believe that no permit was needed for these industrial pollutants. Held:

1. Section 13 prohibitions apply without regard to formalized permit procedures that it authorizes but does not mandate, and Congress did not intend to permit discharges specifically prohibited by § 13 when it enacted the 1965 and 1970 water quality acts directing States to create pollution prevention and abatement programs. Pp. 662—670.

2. Although § 13 bars all discharges of pollutants and not only those that constitute obstructions to navigation, the Corps of Engineers consistently limited its regulations to such obstructions and thus may have deprived respondent of fair warning as to what conduct the Government intended to make criminal. Pp. 670—675.

3 Cir., 461 F.2d 468, modified and remanded to District Court.

William Bradford Reynolds, Washington, D.C., for petitioner.

Harold Gondelman, Pittsburgh, Pa., for respondent.

Mr. Justice BRENNAN delivered the opinion of the Court.

We review here the reversal by the Court of Appeals for the Third Circuit of respondent's conviction for violation of § 13¹ of the Rivers and Harbors Act of 1899 30 Stat. 1152, 33 U.S.C. § 407. Two questions are presented. The first is whether the Government may prosecute an alleged polluter under § 13 in the absence of the promulgation of a formal regulatory-permit program by the Secretary of the Army.² The second is whether, if the prosecution is maintainable despite the nonexistence of a formal regulatory-permit program, this respondent was entitled to assert as a defense its alleged reliance on the Army Corps of Engineers' longstanding administrative construction of § 13 as limited to water deposits that impede or obstruct navigation.

On April 6, 1971, the United States filed a criminal information against the respondent, Pennsylvania In- dustrial Chemical Corp. (PICCO), alleging that on four separate occasions in August 1970 the corporation had discharged industrial refuse matters³ into the Monongahela River⁴ in violation of § 13 of the 1899 Act. By its terms, § 13⁵ prohibits the discharge or deposit into navigable waters of 'any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.' The second proviso to § 13 provides, however, that 'the Secretary of the Army . . . may permit the deposit'⁶ of refuse matter deemed by the Army Corps of Engineers not to be injurious to navigation, 'provided application is made to (the Secretary) prior to depositing such material . . ..'⁷ At trial, it was stipulated that PICCO operated a manufacturing plant on the bank of the Monongahela River, that PICCO-owned concrete and iron pipes discharged the refuse mater into the river, and that PICCO had not obtained a permit from the Secretary of the Army prior to the discharges in question. PICCO argued, however, that the discharges did not violate § 13 because (1) the liquid solution flowing from tis pipes was 'sewage' exempt from the statutory proscription; (2) the discharge did not constitute 'refuse matter' within the meaning of § 13 because it was not matter that would 'impede nevigation'; and (3) the term 'refuse' as used in § 13 must be defined in light of the water quality standards established pursuant to the Water Pollution Control Act of 1948 and its amendments.⁸ In addition, PICCO sought to introduce evidence to show that its failure to obtain a § 13 permit was excusable in this instance because prior to December 1970⁹ the Army Corps of Engineers had not established a formal program for issuing permits under § 13 and, moreover, because the Corps consistently construed § 13 as limited to those deposits that would impede or obstruct navigation, thereby affirmatively misleading PICCO into believing that a § 13 permit was not required as a condition to discharges of matter involved in this case. The District Court rejected each of PICCO's arguments as to the scope and meaning of § 13, disallowed PICCO's offers of proof on the ground that they were not relevant to the issue of guilt under § 13, and intstructed in jury accordingly. PICCO was convicted on all four counts and assessed the maximum fine of $2,500 on each count. 329 F.Supp. 1118 (WDPa.1971).

On appeal, the Court of Appeals for the Third Circuit affirmed the District Court's holdings as to the application of § 13 to the matter discharged by PICCO into the river,¹⁰ but rejected the District Court's conclusion that the § 13 prohibition was operative in the absence of formalized permit procedures. 461 F.2d 468 (CA3 1972). The Court of Appeals reasoned that this interpretation was tantamount to reading § 13 to be an absolute prohibition against the deposit of any 'foreign substance' into the navigable waters of the country and this would have had such a 'drastic impact . . . on the nation's economy even in 1899,' id., at 473, that this interpretation could not reasonably be imputed to Congress. Instead, the Court of Appeals concluded that Congress intended to condition enforcement of § 13 on the creation and operation of an administrative permit program. The Court of Appeals stated:

'Congress contemplated a regulatory program pursuant to which persons in PICCO's position would be able to discharge industrial refuse at the discretion of the Secretary of the Army. It intended criminal penalties for those who failed to comply with this regulatory program. Congress did not, however, intend criminal penalties for people who failed to comply with a non-existent regulatory program.' Id., at 475.

The Court of Appeals seems to have found support for this interpretation of § 13 in 'Congress' subsequent enactments in the water quality field.' Id., at 473. The court stated that '(t)here would appear to be something fundamentally inconsistent between the program of developing and enforcing water quality standards under the Water Quality Act and section 407 of the Rivers and Harbors Act (§ 13), if the effect of the latter is to prohibit all discharges of industrial waste into navigable waters.' Ibid. As it viewed the matter, '(w)hat makes the two statutes compatible is the permit program contemplated by Section 13.' Ibid. Accordingly, the Court of Appeals held that it was error for the District Court to have refused PICCO the opportunity to prove the nonexistence of a formal permit program at the time of the alleged offenses.

As an alternative ground for reversal, a majority of the Court of Appeals held that the District Court erred in disallowing PICCO's offer of proof that it had bene affirmatively misled by the Corps of Engineers into believing that it was not necessary to obtain a § 13 permit for the discharge of industrial effluents such as those involved in this case. If such facts were true, the Court of Appeals stated, it would be fundamentally unfair to allow PICCO's conviction to stand.

Thus, the Court of Appeals set aside PICCO's conviction and remanded the case to the District Court to give PICCO an opportunity to present the proffered proofs that had been disallowed by the District Court.

We granted the Government's petition for certiorari. 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662 (1972). We agree with the Court of Appeals tht the District Court's judgment of conviction must be reversed, but we cannot agree with the Court of Appeals' interpretation of § 13 as foreclosing prosecution in the absence of the existence of a formal regulatory-permit program.

I

Section 13 creates two separate offenses: the discharge or deposit of 'any refuse matter' into navigable waters (with the streets-and-sewers exception); and the deposit of 'material of any kind' on the bank of any navigable waterway or tributary where it might be washed into the water and thereby impede or obstruct navigation. La Merced, 84 F.2d 444, 445 (CA9 1936); United States v. Consolidation Coal Co., 354 F.Supp. 173, 175 (N.D.W.Va.1973). The second proviso to § 13 authorizes the Secretary of the Army to exempt certain water deposits from the prohibitions of § 13, 'provided application is made to him prior to depositing such material.' In exercising that authority, the proviso requires the Secretary to rely on the judgment of the Chief of Engineers that anchorage and navigation will not be injured by such deposits. But, even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary's authority discretionary—i.e., the proviso provides that the Secretary 'may permit' the deposit. The proviso further requires that permits issued by the Secretary are to prescribe limits and conditions, any violation of which is unlawful. It is crucial to our inquiry, however, that neither the proviso nor any other provision of the statute requires that the Secretary prescribe general regulations or set criteria governing issuance of permits.

Thus, while nothing in § 13 precludes the establishment of a formal regulatory program by the Secretary, it is equally clear that nothing in the section requires the establishment of such a program as a condition to rendering § 13 operative. United States v. Granite...