United States v. Little Rock Sewer Com.

• Decision Date: 19 January 1978
• Docket Number: No. LR-CR-77-138.,LR-CR-77-138.
• Citation: 460 F. Supp. 6
• Parties: UNITED STATES of America v. LITTLE ROCK SEWER COMMITTEE and Little Rock Sanitary Sewer System.
• Court: U.S. District Court — Eastern District of Arkansas

460 F. Supp. 6

UNITED STATES of America v. LITTLE ROCK SEWER COMMITTEE and Little Rock Sanitary Sewer System.

No. LR-CR-77-138.

United States District Court, E. D. Arkansas, W. D.

January 19, 1978.

W. H. Dillahunty, U. S. Atty., Little Rock, Ark., for plaintiff.

Frank H. Cox, Little Rock, Ark., for defendant.

MEMORANDUM AND ORDER

EISELE, Chief Judge.

On September 23, 1977, the Court held a hearing on the merits of a motion by the defendant City of Little Rock to dismiss a pending criminal information which charged the City with knowingly making or causing to be made a false statement, representation, and certification in a monthly Discharge Monitoring Report in violation of 33 U.S.C. § 1319(c)(2). At this hearing, the City of Little Rock contended that the information should be dismissed because Roland Ouelette, the employee charged with the duty of filing these reports, was under the sole supervision, direction and control of the Little Rock Sewer Committee, rather than the City of Little Rock functioning as a municipal corporation. The documentary evidence presented at this hearing substantiated this contention. Since the evidence presented at the hearing indicated that the City of Little Rock per se, played no part in obtaining the permit, that the City had no knowledge of the contents of the Discharge Monitoring Reports, and that the City was not charged with the responsibility of submitting these reports to the Environmental Protection Agency, the Court concluded that the information should be dismissed against the City of Little Rock. The government then filed a new information charging the legal entities known as the Little Rock Sewer Committee and the Little Rock Sanitary Sewer System with the same statutory violations that were contained in the original information filed against the City of Little Rock.¹

One of the issues which was discussed at the hearing was whether any further proceeding against the Little Rock Sewer Committee should be consolidated with the trial of defendant Roland Ouelette, who was charged with identical statutory violations. The attorney for the Sewer Committee indicated that he would not object to the consolidation, but requested that the case against the Committee be tried to the court. Thus, the Court concluded that the aforementioned cases should be consolidated and the trial of each cause bifurcated in such a manner that the charges against defendant Sewer Committee would be tried to the court at the same time the charges against defendant Ouelette were being tried to a jury.

On September 26, 1977, the Court convened the trial in this case. At the conclusion of this trial, the jury returned a guilty verdict under each of the five counts of the information against defendant Ouelette. The Court then took under advisement the decision regarding the guilt or innocence of the defendant Sewer Committee pending the filing of memoranda of law on the legal question of whether the Sewer Committee could be held criminally liable for violation of the statute in question under a theory of respondeat superior.

The information against defendant Little Rock Sewer Committee contains five counts which allege that on various dates the defendant "did knowingly make and cause to be made a false statement, representation and certification in the monthly Discharge Monitoring Report" in violation of 33 U.S.C. § 1319(c)(2). At the conclusion of the trial in this case, the Court was convinced beyond a reasonable doubt that defendant Roland Ouelette was guilty of violating 33 U.S.C. § 1319(c)(2) as charged in the information. This conclusion was buttressed by the jury's verdict. As indicated at the September 23rd hearing, the individual members of the Little Rock Sewer Committee clearly lacked any personal knowledge of the false statements made by defendant Ouelette. Thus, the individual Committee members could only have been prosecuted under some attenuated theory of vicarious criminal liability. However, the information does not name or seek to hold these members responsible for any individual criminal liability but, rather, names the entity known as the Sewer Committee as the defendant. Thus, the question before the Court is whether the defendant Little Rock Sewer Committee may be found guilty of violating 33 U.S.C. § 1319(c)(2) under a theory of respondeat superior.

In United States v. Hilton Hotels Corporation, 467 F.2d 1000 (9th Cir. 1973), one of the issues before the Court concerned whether a corporation should be held criminally liable under the Sherman Act for the acts of its agents acting within the scope of their authority.² In concluding that the corporation should be held criminally liable for the acts of its agents, the Court stated the following:

"The breadth and critical character of the public interests protected by the Sherman Act, and the gravity of the threat to those interests that led to the enactment of the statute, support a construction holding business organizations accountable, as a general rule, for violations of the Act by their employees in the course of their businesses. . . .

"With such important public interests at stake, it is reasonable to assume that Congress intended to impose liability upon business entities for the acts of those to whom they choose to delegate the conduct of their affairs, thus stimulating a maximum effort by owners and managers to assure adherence by such agents to the requirements of the Act."

Id. at 1005. Although the legislative history surrounding the Federal Water Pollution Control Amendments of 1972 provides little real guidance, the Court concludes that the public interest protected by this legislation is like, and is as important in its area of concern as, the public interest protected under the Sherman Act. Thus, the criminal sanctions provided by § 1319 should be construed and applied with a view toward achieving the same kind of "maximum adherence" referred to by the court in Hilton, supra.

In Apex Oil Co. v. United States, 530 F.2d 1291 (8th Cir. 1976), the appellant appealed its conviction for failing to notify an appropriate agency of the United States government of a known oil spill in violation of 33 U.S.C. § 1321(b)(5).³ The underlying facts in this case reveal that during offloading operations at one of the appellant's facilities approximately ten gallons of aromatic oil spilled into the Mississippi River. Robert J. Smith, one of the appellant's employees, was in charge of the offloading and witnessed the spill, but failed to notify either the Coast Guard or the Environmental Protection Agency. The Coast Guard later traced the spill to the Apex Oil facility. On appeal, the defendant corporation argued, inter alia, that it lacked knowledge of the spill sufficient to support its conviction under 33 U.S.C. § 1321(b)(5). In rejecting this contention, the court stated the following:

"The corporation is no less `in charge' of the oil

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