United States v. United States Steel Corporation, Crim. No. 70 H Cr 12.

• Decision Date: 10 November 1970
• Docket Number: Crim. No. 70 H Cr 12.
• Citation: 328 F. Supp. 354
• Parties: UNITED STATES of America v. UNITED STATES STEEL CORPORATION.
• Court: U.S. District Court — Northern District of Indiana

328 F. Supp. 354

UNITED STATES of America v. UNITED STATES STEEL CORPORATION.

Crim. No. 70 H Cr 12.

United States District Court, N. D. Indiana, Hammond Division.

November 10, 1970.

William C. Lee, U. S. Atty., John F. Flynn, Asst. U. S. Atty., for plaintiff.

Jay Lipe, James Harrington, Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., G. Edward McHie, Hammond, Ind., for defendant.

MEMORANDUM

BEAMER, District Judge.

Defendant has been charged by the United States Attorney with despositing refuse in navigable waters, in violation of 33 U.S.C. § 407. That statute, more commonly known as the Refuse Act of 1899, provides as follows:

"It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, 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 of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful. Mar. 3, 1899, c. 425, § 13, 30 Stat. 1152."

The information filed against the defendant is drawn in two counts. Count I charges that:

"On or about the 11th day of October, 1967, in the Northern District of Indiana, Hammond Division, UNITED STATES STEEL CORPORATION did unlawfully discharge and deposit and cause, suffer, and procure to be discharged and deposited refuse matter, that is, a quantity of a red-brown particulate sediment from a drain pipe on United States Steel Corporation property approximately 100 yards North-east of Broadway Street, Gary, Indiana, on the North Bank of the Grand Calumet River into the East Branch of the Grand Calumet River, navigable waters of the United States, in violation of Title 33, United States Code, Sections 407, 411."

Count II is substantially the same, the only differences being the nature of the alleged pollutant ("an oily substance") and the location of the drain.

Defendant has moved for dismissal on a number of different grounds. First of all, it contends that the information is defective because it fails to allege that defendant acted "wilfully and knowingly". But no such requirement appears in the statute, and the Court can see no basis for implying one. Defendant points out, quite correctly, that the absence of an express reference to knowledge or intent in the statute is not conclusive if the offense is of a type traditionally requiring scienter. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). However, the offense of depositing refuse in navigable waters is a malum prohibitum, not a malum in se,¹ and falls squarely within the category of "public welfare offenses" described in Morissette. As such, it could properly have been made the subject of strict criminal liability, and in the opinion of this Court, it was. The public is injured just as much by unintentional pollution as it is by deliberate pollution, and it would have been entirely reasonable for Congress to attack both.

The Refuse Act has been in existence for more than seventy years now; and as far as the Court can determine, no reported decision has ever imposed a scienter requirement. On the contrary, those courts presented with the question have uniformly held that no such requirement exists. E. g. United States v. Interlake Steel Corp., supra; The President Coolidge, 101 F.2d 683 (9th Cir., 1939); United States v. Bigan, 170 F.Supp. 219 (W.D.Pa., 1959). The Court holds that scienter is not an essential element under the Refuse Act.

Defendant's next argument is that the only type of pollution covered by the Refuse Act is that which obstructs navigation—an effect not alleged here. Arguing primarily from legislative history and past enforcement practices, defendant contends that the Refuse Act is a "navigation statute", not a "pollution statute". But the fact remains that the part of the statute under which defendant is charged says nothing about effects on navigation,² and the vast majority of the courts faced with the question have ruled that no such limitation exists. See, e. g., United States v. Esso Standard Oil Co., 375 F.2d 621 (3rd Cir., 1967); United States v. Ballard Oil Co., 195 F.2d 369 (2d Cir., 1952); La Merced, 84 F.2d 444 (9th Cir., 1936).

Defendant stresses the anomaly of a pollution statute with an express exception for matter "flowing from streets and sewers and passing therefrom in a liquid state". But if anything, that exception argues against defendant's interpretation. If, as defendant contends, the act was aimed solely at materials that obstructed navigation, why would Congress have made a special exception for liquid sewage—material with no apparent tendency to obstruct navigation in the first place?

Moreover, if the only deposits forbidden by the Act were those which obstruct navigation, the final proviso would make no sense. Under that proviso, the Secretary of the Army can permit otherwise illegal deposits if the Chief of Engineers finds that anchorage and navigation will not be impaired. If defendant's interpretation were correct, in any given case a permit would either be unnecessary— since non-obstructing deposits were never forbidden in the first place—or unobtainable —since the Secretary has no power to permit deposits that obstruct navigation. The final proviso makes sense only if the Act forbids deposits that pollute, as well as those which directly affect navigability.

In United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966) the Supreme Court examined the Act's history in some detail. It concluded that "it is plain from its legislative history that the `serious injury' to our watercourses * * * sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution emph. added". 384 U.S. at 228-229, 86 S.Ct. at 1429. This Court agrees. Obstruction of navigation is not an essential element under the first clause of the Refuse Act.

Defendant's next argument is that the information is insufficient because it fails to allege that defendant's discharges violated the water quality standards established for the Grand Calumet River under the Water Pollution Control Act, 33 U.S.C. § 1151 et seq. Defendant claims, and the government does not deny, that at all times relevant to this prosecution, defendant was in full compliance with all applicable federal and state water quality standards. The question thus presented is whether the Water Pollution Control Act creates an implied exception to the Refuse Act. Can a polluter relieve itself of liability under the latter by complying with the former?

The answer appears in the Control Act itself. 33 U.S.C. § 1174 provides that "this chapter shall not be construed as * * * affecting or impairing the provisions of sections 407, 408, 409, and 411 to 413 of this title * *". A clearer statement of congressional intent could hardly be found.

Defendant argues that this section should be read in historical perspective —that at the time of its enactment in 1948, the criminal provisions of the Refuse Act had never been used against industrial polluters, and that as a result, the section should not be deemed controlling in a case like this. But the Control Act was revised extensively in 1965 and again in 1970; and even if, as defendant maintains, the Refuse Act was never applied to the type of pollution involved here until after 1965, it certainly was thereafter,³ and the section quoted above still survived the 1970 amendments.⁴ The Court is well aware of the dangers of arguing from legislative inaction, but when a significant statute in an area of substantial public and legislative concern survives extensive revisions to the regulatory scheme in which it appears, some weight can properly be attached to that fact.

Defendant relies heavily on Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), where the Supreme Court observed that at times it becomes the task of the judiciary to "accommodate" or "reconcile" older statutes to newer ones. The analogy at first blush is appealing, but one significant difference exists between this case and Boys Markets. There the newer statute made no reference at all to the older one. Here the newer one provides expressly that the older one shall remain unimpaired. Here Congress has already spoken. The "accommodation" sought by the defendant would require the Court to repeal 33 U.S. C. § 1174, and no court has authority to do that.

Defendant protests that a...