U.S. v. Hamel, 76-1478

Decision Date10 March 1977
Docket NumberNo. 76-1478,76-1478
Citation551 F.2d 107
Parties, 7 Envtl. L. Rep. 20,253 UNITED STATES of America, Plaintiff-Appellee, v. Gilbert G. HAMEL, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Raymond A. Ballard, Foster, Meadows & Ballard, Robert N. Dunn, Detroit, Mich., for defendant-appellant.

Frederick S. Van Tiem, Chief Asst. U.S. Atty., Detroit, Mich., Peter R. Taft, Jacques B. Gelin, Kathryn A. Oberly, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and McCREE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Gilbert G. Hamel was convicted by a district court jury of wilfully discharging gasoline onto Lake St. Clair, a navigable waterway, in violation of Section 101 of the Federal Water Pollution Control Act, as amended in 1972, 33 U.S.C. § 1251 et seq.

In his direct appeal Hamel asserts that certain closing arguments of the prosecution were improper, that there was insufficient evidence of his identity and scienter to support his conviction and that the section of the Act under which he was indicted and convicted did not prohibit the discharge of gasoline. We affirm.

SUFFICIENCY OF EVIDENCE

The proofs showed that on January 22, 1975, Raymond Zembrzycki and Ernest Gregg were ice fishing in the vicinity of the Blue Lagoon Marina on Lake St. Clair, Michigan. Concerned about a quantity of gasoline which they discovered on the ice around Blue Lagoon's pier, they asked Ronald Spradlin, a 16-year old boy who had accompanied them, to notify the appropriate authorities. Spradlin notified the Michigan Department of Natural Resources, which in turn notified the Coast Guard. Zembrzycki testified that in the meantime they observed a man in a tan jacket emerge from a blue-green car and proceed to a gasoline dispenser located at the end of the pier. The man "put his hand on the pump and turned something" on the dispenser, and then drove away. Three to five minutes later the fishermen noticed gasoline gushing from the pump. A few minutes after the discharge, the fishermen observed the same car return and the same man again touch something at the pump. Both fishermen at trial identified the man they observed as the defendant.

Two Coast Guard investigators arrived at the marina in response to the call. They saw a man, who later identified himself as Mr. Hamel, pumping gasoline into a Corvette automobile from a pump which was located in a different area than the pier. Hamel told the investigators he was the yard foreman for the Blue Lagoon Marina. Asked if he knew of any gasoline spill or if he knew of any other gas dispenser or pumps at the facility, Hamel responded that he did not. Coast Guard investigation later revealed that approximately 200 to 300 gallons of gasoline had been discharged upon the ice. An examination of the dispenser from which the fishermen had seen the gasoline discharged disclosed that it did not contain a pump. The proofs indicated that the pump was located in an underground Viewing the evidence most favorably to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Dye, 508 F.2d 1226 (6th Cir. 1974), cert. denied 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975), we are satisfied that the evidence, while circumstantial, was fully sufficient to justify submission of the issues of identity and scienter to the jury. Hamel was positively identified by two witnesses. His deceptive responses to the investigators and his observed journeys to and from the dispenser support the jury conclusion that Hamel intentionally activated the necessary levers to discharge the gasoline onto Lake St. Clair.

gas tank in front of the showroom of the marina and some distance from the dispenser. Chief Petty Officer McCauley of the United States Coast Guard testified that in order to dispense the gasoline both a lever on the dispenser and a pump situated at the tank source had to be activated.

IMPROPER CLOSING ARGUMENT

Defendant claims that the government in its final summation to the jury misstated the effect of 33 U.S.C. § 1321. Specifically the defendant urges that it was improper for the prosecutor to emphasize the criminal penalty in that section for the failure to notify authorities of an oil spill and neglect the section's civil remedies. However, the statement made, if incomplete, was nonetheless accurate. No objection was made by defense counsel at the time.

To the extent the comment was improper, we consider it

harmless. CRIMINAL LIABILITY FOR THE DISCHARGE OF

GASOLINE UNDER SECTIONS 1311 and 1319

The defendant claims that any action taken against him by the government should have proceeded under either 33 U.S.C. § 1321 or § 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (Refuse Act). Those statutes provide respectively for civil and criminal penalties for oil and gasoline spillage. However, defendant was indicted and tried under § 1319(c)(1), the criminal sanction provision of the Federal Water Pollution Control Act. The government's implicit assumption for the charge is that gasoline is a pollutant within the definitional section of the Act, § 1362(6). It is argued by defendant that gasoline cannot be construed as a pollutant under § 1362(6). Congress, it is claimed, could not have intended in enacting the 1972 amendments to provide criminal penalties for gasoline spills because criminal sanctions were already available under the Refuse Act and because the definition of "pollutant" under section 1362(6) fails to include oil and oil products as contrasted to the broad detailed inclusion of oil in the civil remedy provisions of § 1321. We disagree.

In the 1972 amendments to the Federal Water Pollution Control Act, Congress expressed its objective to eliminate the discharge of pollutants into the navigable waters by 1985. 1 The amendments seek to increase federal responsibility for the restoration and maintenance of the "chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 1311(a) states the broad primary declaration of the Act that the "discharge of any pollutant by any person shall be unlawful." Certain exceptions are provided, including the possession of a permit under § 1342. The negligent or wilful violation of § 1311(a), however, without justification subjects one to the criminal sanctions § 1319(c)(1). The statutory scheme of the Act relies heavily on the triggering mechanism of § 1311(a) which in turn is dependent of the definition of "pollutant". 2 That definition is provided in § 1362(6):

(6) The term "pollutant" means dredged spoil, 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 water. This term does not mean (A) "sewage from vessels" within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.

The government contended successfully at trial that gasoline could be subsumed under "biological materials". While admittedly petroleum products do contain organic compounds, 3 we believe the more certain approach is an analysis of Congressional intent and legislative history. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976). It is, of course, true that in hindsight the entire controversy might have been solved by the single addition of the term "petroleum products" to the definitional section. We do not, however, read the failure to do so as an intent to exclude these materials from the Act. On the contrary, we conceive the employment of the broad generic terms as an expression of Congressional intent to encompass at the minimum what was covered under the Refuse Act of 1899.

The Refuse Act of 1899, 33 U.S.C. § 407, is itself a codification of prior legislation. It prohibits the discharge 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, into any navigable water . . ." 4 In United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966) the Supreme Court determined that commercially valuable aviation gasoline was within the proscription of the Act, rejecting defendant's contention that the statutory phrase "refuse matter" excluded valuable substances. To make the matter conclusive, the Supreme Court not only held that gasoline was encompassed in the term "refuse", but that it was undoubtedly a pollutant.

Oil is oil and whether useable or not by industrial standards it has the same deleterious effect on waterways. In either case, its presence in our rivers and harbors is both a menace to navigation and a pollutant.

United States v. Standard Oil Co., supra, at 226, 86 S.Ct. at 1428.

When the definition of pollutant in § 1362(6) is read in the light of the judicial construction of § 407, it becomes apparent that the Congress expressly intended by the more generic language to include discharged gasoline, for the framers expressly intended that the definition would at least be as broad as the coverage of the Refuse Act.

For the first time the Committee would add to the law a definition of the term pollutant. In order to trigger the control requirements over addition of materials to the navigable water, waters of the contiguous zone and the ocean,...

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