504 F.2d 1317 (6th Cir. 1974), 73-2161, United States v. Ashland Oil & Transp. Co.

Docket Nº:73-2161.
Citation:504 F.2d 1317
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. ASHLAND OIL AND TRANSPORTATION CO., a subsidiary of Ashland Oil Co., Inc., Defendant-Appellant.
Case Date:November 01, 1974
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1317

504 F.2d 1317 (6th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

ASHLAND OIL AND TRANSPORTATION CO., a subsidiary of Ashland

Oil Co., Inc., Defendant-Appellant.

No. 73-2161.

United States Court of Appeals, Sixth Circuit

November 1, 1974

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Ralph W. Wible, Owensboro, Ky., for defendants-appellants.

A. Duane Schwartz, George Long, Asst. U.S. Attys., Louisville, Ky., James Lawrence Zimmerman, John Vance Hughes, E.P.A.-- Region 4, Atlanta, Ga., Wallace H. Johnson, Edmund B. Clark, Carl Strass, Dept. of Justice, Appellate Section, Land and Natural Resources Div., Washington, D.C., for plaintiff-appellee.

Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.

EDWARDS, Circuit Judge.

This case poses three questions of vital importance to protection of the water resources of these United States:

1) Did Congress in adopting the Federal Water Pollution Control Act Amendments of 1972 1 intend to control both discharges of pollutants directly into navigable waters and discharges of pollutants into nonnavigable tributaries which flowed into navigable rivers? We answer this question 'yes.'

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2) Does Congress have constitutional authority under its interstate commerce powers to prohibit discharge of pollutants into nonnavigable tributaries of navigable streams? We answer this question 'yes.'

3) Assuming the affirmative answers set forth above, under the Federal Water Pollution Control Act is the government required to bear the burden of proof to establish not only that (as here) pollutants were discharged into a nonnavigable tributary of a navigable river, but that in fact these same pollutants reached and polluted the navigable river? We answer this question 'no.'

Defendant-appellant Ashland Oil was indicted for failing 'immediately' to report the discharge of 3,200 gallons of oil into the water of Little Cypress Creek on February 20, 1973. The indictment alleged violation of 33 U.S.C. 1321(b)(5) of the Federal Water Pollution Control Act Amendments of 1972. The statutory provisions directly concerned are:

'(5) Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.' 33 U.S.C. 1321(b)(5) (1972).

'(3) The discharge of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone in harmful quantities as determined by the President under paragraph (4) of this subsection, is prohibited, except (A) in the case of such discharges of oil into the waters of the contiguous zone, where permitted under article IV of the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended, and (B) where permitted in quantities and at times and locations or under such circumstances or conditions as the President may, by regulation, determine not to be harmful. Any regulations issued under this subsection shall be consistent with maritime safety and with marine and navigation laws and regulations and applicable water quality standards.' 33 U.S.C. 1321(b)(3) (1972).

The case was tried before Judge James Gordon in the United States District Court for the Western District of Kentucky. Ashland Oil was found guilty and on recommendation of the United States Attorney was fined $500.

On appeal Ashland claims that Congress does not have the constitutional power to control pollution of nonnavigable tributaries of navigable streams and has not sought to do so in the statutes quoted above, that these statutes being criminal in nature should be strictly construed against the government, that Little Cypress Creek was nonnavigable in fact, that the discharge never reached 'navigable waters,' and that anyway it (Ashland) did report the oil discharge 'immediately.'

The case was tried chiefly on an extensive stipulation of facts:

'STIPULATION-- Filed September 20, 1973

Now comes the parties, by counsel, and stipulate as follows:

1. Ashland Oil and Transportation Company, a subsidiary of Ashland Oil Incorporated was a person in

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charge of the pipeline which discharged crude oil.

2. The Ashland Oil and Transportation Company pipeline from which the discharge occurred is located on and under land within the Western District of Kentucky, in Muhlenburg County, Kentucky.

3. The oil discharged directly into the waters of a small tributary to Little Cypress Creek at a point approximately 100 feet from the tributary's confluence with Little Cypress Creek.

4. Ashland Oil and Transportation Company had certain knowledge of the exact location and origin of the spill by 7:00 p.m., February 20, 1973.

5. Ashland Oil and Transportation Company reported the spill to the United States Environmental Protection Agency in Atlanta through Mr. A. D. Headley, its employee, at 10:10 a.m., February 21, 1973.

6. Ashland Oil and Transportation Company discharge approximately 3200 gallons of crude oil which created a visible sheen on Little Cypress Creek before 7:00 p.m., February 20, 1973.

7. The Green River is navigable in fact at the point that Pond River empties into it.

8. That Cypress Creek is a tributary to Pond River and Pond River is a tributary to Green River.

9. Little Cypress Creek is a tributary to Cypress Creek.

10. Illinois Central Railroad and Peabody Coal Company both are engaged in interstate commerce and both discharge into Little Cypress Creek.

11. The Central City Kentucky Sewage Treatment Plant treats the waste coming from several motels and restaurants which are engaged in interstate commerce, and it discharges into Little Cypress Creek.

12. A portion of the Western Kentucky Parkway, a four lane toll road and major highway for interstate commerce running east and west through the State of Kentucky, is drained by Little Cypress Creek.

13. The Little Cypress Creek drains many farms through which it flows. These farms use equipment and materials which are received through interstate commerce, and their products affect interstate commerce.

14. The Little Cypress Creek drains the area in which Ashland Oil and Transportation Company facilities are located.

15. While the defendant does not stipulate in any way that it degraded the quality of the water of Little Cypress Creek, the parties do stipulate that the quality of the water in Little Cypress Creek affects the produce of the farms that it drains and to which it supplies water.

16. Ashland Oil and Transportation Company was aware on February 20, 1973 that the U.S. Environment Protection Agency and U.S. Coast Guard each maintains 24 hour telephone services for receiving reports of oil and hazardous material spills.'

As noted above in the stipulation, Little Cypress Creek is a tributary to Cypress Creek, which is a tributary to Pond River, which is a tributary to Green River. The stipulation indicates that of these, only Green River is actually a navigable river 'in fact' in terms of waterborne commerce.

I Interpretation of the Act

The Federal Water Pollution Control Act, 33 U.S.C. 1251 through 1376, was first enacted in 1948. It was amended many times until it was substantially revised and reenacted in 1972. It is this statute which contains the two enforcement paragraphs, previously quoted, upon which the prosecution of this case depends. We do not, however, believe that 1321(b)(3) and (5) can properly be interpreted without reference to the whole of the Congressional scheme of which they are merely a small, if important, part. To understand Congress'

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purposes, we need to refer to the national goals and policies which Congress adopted:

'(a) The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter--

(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;

(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;

(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;

(5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; and

(6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans.' 33 U.S.C. 1251(a)(1-6) (1972).

Since the term 'navigable waters' is employed in...

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