UNITED STATES of America, Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.
No. 72-1590.
United States Court of Appeals, Seventh Circuit.
May 11, 1973.
Rehearing Denied June 8, 1973.
482 F.2d 439
CUMMINGS, Circuit Judge.
Heard Feb. 16, 1973. Certiorari Denied Oct. 15, 1973. See 94 S.Ct. 229.
John F. Flynn, Asst. U. S. Atty., Hammond, Ind., William C. Lee, U. S. Atty., Ft. Wayne, Ind., for plaintiff-appellee.
Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.
This criminal prosecution was based upon a 2-count information alleging violations of Sections 13 and 16 of the Rivers and Harbors Act of 1899 (
In this Court defendant admits the discharges in question. In support of reversal it urges the non-applicability of the 1899 Act to the discharges because they did not affect the navigability of the receiving stream and because they occurred after enactment of The Water Quality Act of 1965, the contrariety of its conviction to Congressional intent and to due process in the absence of a regulatory permit program, and the erroneousness of certain of the trial court‘s evidentiary rulings. We affirm.
Defendant‘s principal argument is that Section 13 of the Rivers and Harbors Act of 1899 does not cover these discharges of effluent waste into the Grand Calumet River on the ground that the statute requires an effect on navigation. At the trial, the Government made no attempt to prove that these discharges impeded or obstructed navigation or had a tendency to do so. It contended, as it contends here, that the first clause of Section 13 applies to the present discharges regardless of an effect on navigation.
The statute in question has lately become known as the Refuse Act of 1899. Section 13 thereof provides:
“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 provide 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.” (
33 U.S.C. § 407 )1
The first offense created by this statute, the offense for which defendant was prosecuted, consists in discharging into navigable waters “any refuse matter of any kind or description whatever.” The sole exception to the refuse matter coverage is for municipal sewage.2 The
Section 13 contains two provisos, only the second of which is pertinent here. That proviso allows “the deposit of any material above mentioned in navigable waters” if upon prior application to him the Secretary of the Army grants a permit therefor. The criterion for granting the permit is the Chief of Engineers’ judgment that “anchorage and navigation will not be injured” by the deposit. The final proviso makes sense only if it is interpreted to apply to both the first and the second offenses enunciated by the statute. There seems to be no question but that it applies to the second portion. Since the first clause is the one referring explicitly to a “deposit * * * into any navigable water,” the proviso fits it most comfortably. If it did not apply to the first clause, no discharge of any refuse matter could ever avoid criminality.
On its face, therefore, the first part of Section 13 proscribes the discharge of “any refuse matter of any kind or description whatever” into navigable waters without a permit. The words of the statute do not impose any limitation of an effect on navigation or tendency to affect navigation on the refuse matter covered. Defendant‘s argument for reading in this qualification relies on legislative history as indicative of a Congressional concern only with discharges “which tend to impair navigability.” We think the statute is plain on its face, but since words are necessarily inexact and ambiguity is a relative concept, we now turn to the legislative history, mindful that the plainer the language, the more convincing contrary legislative history must be.
Although statutes dealing with discharges in the navigable waters of New York Harbor were enacted in 18863 and 1888,4 the first statute of general applicability was enacted in 1890. Section 6 of this statute made it unlawful to empty either from a vessel or from shore “any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river or navigable waters of the United States which shall tend to impede or obstruct navigation * * *” (emphasis supplied). It also prohibited the deposit of such materials on the bank of any navigable waters where it was liable to be washed into the waters and “whereby navigation shall or may be impeded or obstructed.” A proviso excepted deposits under a permit from the Secretary of War designating a place where the deposit would not obstruct navigation.
In 1894 Congress again legislated on the subject of discharges into navigable waters. Section 6 of the Rivers and Harbors Act of that year made it unlawful to discharge “by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets,
Defendant argues that the absence of any explicit qualification in the 1894 Act relating to navigational impairment does not mean that Congress intended to abandon that qualification. It seems true, as defendant suggests, that the 1894 Act was precipitated by the Corps of Engineers’ complaint that the 1890 Act was difficult to enforce because it contained no provision for an in rem proceeding against a vessel or for liability of the master or engineer; the 1890 Act applied only to persons or corporations owning the vessel.5 In response, Congress drew on Sections 2 and 4 of the 1888 New York Harbor Act in enacting Sections 7 and 8 of the 1894 Act to supply the lacking features. However, it also borrowed from the New York Harbor Act to enact the substantive provision of the 1894 Act, Section 6, quoted in part above. It has been suggested that this was “redundant” because the Corps only sought additional liability provisions and the 1890 Act had already delineated the substantive offense.6 Moreover, since the 1894 Act was appended to the annual river and harbor appropriation bill, it is suggested that there was a limited opportunity for debate and Congress was assured that the bill only prevented discharges which would affect navigation.7 Although this is all very plausible, it is not a truly satisfactory basis for assuming Congressional oversight of the differences between the 1890 and 1894 statutes. Most probably Congress was primarily concerned with protecting the navigability of navigable waterways, but that is not to say it was exclusively so concerned. As the Supreme Court has said, “* * * the ‘serious injury’ to our watercourses * * * sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution * * *.” United States v. Standard Oil Co., 384 U.S. 224, 228-229, 86 S.Ct. 1427, 1429, 16 L.Ed.2d 492 (1966). But even if Congress was solely preoccupied with protecting navigability, that would not negate Congressional resolve to forbid the discharges of the listed and other foreign substances regardless of their apparent effect on navigation unless specially permitted. To say that Congress was concerned with protecting navigation is not determinative of the scope of the measures Congress took to effect that protection.
In 1896 the Attorney General construed Section 6 of the 1894 Act “as an absolute prohibition” against the discharge of material which, although conceded to be covered by Section 6, would not have affected navigability. 21 Opinions of the Attorney General 305, 307. The “ore washings” involved, however, would have “destroy[ed] the fish, pollute[d] the water so as to destroy its usefulness for domestic purposes, and injure[d] the scenery along the stream.” Id. at 306. Although the Attorney General opined that the Secretary of War was required to issue a permit under these circumstances, he indicated no doubt about the proposition that a permit had to be applied for and that the Secretary‘s judgment, rather than the discharger‘s, about impairment of navigability was controlling.8
Section 13 eliminated the enumeration of substances present in both the 1890 and 1894 Acts, substituting for them and their catch-alls the phrase “any refuse matter of any kind or description whatever.” Moreover, as noted previously, the first portion of Section 13 was not modified by the navigation-threatening limitation appearing in the 1890 Act; only the second portion contains that modifier. The absence of the navigational effect limitation in the first portion of Section 13 is best explainable on the basis that Section 6 of the 1894 Act contained no such limitation. Even though the phrase “any refuse matter of any kind or description” must be construed in pari materia with the lists of substances found in the earlier Acts (see United States v. Standard Oil Co., supra at 228-229, 86 S.Ct. 1427), it does not follow that only refuse matter which tends to impede navigation is covered. The enumeration in the 1890 Act ends with the catch-all “or other waste of any kind.” If only materials with an inherent tendency to impede or obstruct navigation are involved, the modifier “whereby navigation shall or may be impeded or obstructed” is superfluous. The enumeration in the 1894 Act ends with the broader catch-all “or any other matter of any kind.” The use of “any other matter of any kind” militates against an overly strict ejusdem generis construction, but in any event, it is obvious that not every discharge of the enumerated substances will tend to affect navigation. For instance, the discharge of “acid” is prohibited, but not every acid will be capable of corroding wharves or ships’ hulls.11 Yet a discharge of any acid without prior approval of the Secretary of War would certainly seem to be squarely in the teeth of the statutory prohibition.
Thus it is entirely consistent with defendant‘s hypothesis that Con-
This review of the legislative history of Section 13 of the 1899 Act does not persuade us that the statute means other than what it says. The discharge of any refuse matter, regardless of any apparent effect on navigation, is prohibited in the absence of a permit even if Congress thought at the time of enactment that permits would not or could not be withheld on the ground that the material discharged was merely a pollutant.
Defendant also relies on the administrative interpretation of Section 13 as establishing that the officials charged with the administering of the Act did not believe that it applied to discharges which had no navigational effect. It asks us to “give great weight” to the administrative interpretation in determining the scope of the statute. In effect from 1965 through December 1968, the only regulation pertaining to Section 13 was
In sum, we conclude that what defendant characterizes as “pure dicta” in United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492, was not ill-considered. There the Supreme Court stated that as used in Section 13 of the Refuse Act of 1899, “[t]he word ‘refuse’ includes all foreign substances and pollutants apart from those ‘flowing from streets and sewers and passing therefrom in a liquid state’ into the watercourse.” We so hold in accord with our sister Circuits which have faced the same question. United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468, 471 (3rd Cir. 1972), certiorari granted, 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662; United States v. Ballard Oil Co., 195 F.2d 369, 371 (2d Cir. 1951); La Merced, 84 F.2d 444, 446 (9th Cir. 1936).14
Accommodation of Refuse Act of 1899 and Amended Federal Water Pollution Control Act of 1948
Defendant contends that the Refuse Act of 1899 and the Federal Water Pollution Control Act of 1948, as amended at the time of the discharges in question by The Water Quality Act of 1965,15 (particularly
Consistency of Defendant‘s Convictions with Congressional Intent and with Due Process
Defendant argues that even if its discharges are within the proscription of Section 13 of the Refuse Act, its convictions are “contrary to the intention of Congress” because no regulatory permit program under Section 13 existed in 1967 at the time of the discharges. Relying on the Third Circuit‘s decision in United States v. Pennsylvania Industrial Chemical Corp., supra, it contends that in enacting Section 13 Congress intended to establish a regulatory program and in enacting The Water Quality Act of 1965 Congress must have contemplated the existence of such a program under Section 13 or, because of their incompatibility, it would not have preserved the latter statute.
However, Section 13 does not speak in terms of a regulatory permit program. Straightforwardly it provides that upon prior application the “Secretary of the Army * * * may permit the deposit of any material above mentioned in navigable waters * * *.” Section 13 may be contrasted with Section 11 (
Furthermore, the efficacy of the Refuse Act of 1899 is not dependent upon its being construed to embody a formal regulatory program in order to make it compatible with subsequent anti-pollution legislation. After enactment of The Water Quality Act of 1965 allowing discharges which met minimum water quality standards, it could make no difference in terms of the general prohibition of the 1899 Act whether the Secretary of the Army determined the effect of a proposed discharge on navigation on an ad hoc basis or pursuant to a formal regulatory permit program. When in 1970 Congress instructed federal licensing or permitting agencies to disapprove proposed discharges which failed to meet applicable water quality standards (
Defendant would equate the absence of a regulatory permit program with the non-availability of a permit but cannot make that equation balance. Defendant does not contend that it ever applied for a permit and was refused, but rather argues that any application would have been unavailing. However, subsequent to the decision in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, in May 1960, and prior to the time of defendant‘s discharges, at least four permits for the discharge of industrial waste were issued, three of which were issued by the Chicago District of the Corps of Engineers—the District having jurisdiction over the Grand Calumet River—to steel producers in the Chicago area allowing the discharge of treated process water into the Calumet River.18 Although these permits were issued as part of the settlement of the Republic Steel Corp., supra, litigation, they militate against indulging in defendant‘s assumption that a permit application would have
Since defendant cannot successfully assert a defense that no permit was available, it is unnecessary to consider whether its conviction violated due process if it could not obtain a permit. However, we note that the First Circuit has, with cogency, rejected such a claim. United States v. Granite State Packing Co., 470 F.2d 303, 304 (1st Cir. 1972).
Next defendant contends that its conviction violated due process because the Army Corps of Engineers had publicly stated that the Grand Calumet River was not a navigable water of the United States over which it exercised “active” jurisdiction. However, the two statements defendant points to, Exhibits C and D, both properly excluded from evidence (see infra), do not support defendant‘s reliance. The first statement bore the date of April 8, 1969, one and a half years after the discharges in question. The second statement refers to those bodies of water over which bridges cannot be built without advance approval of the Secretary of the Army. Neither statement purports to be a definitive list of navigable waterways within the District.
Evidentiary Rulings
The defendant assails various evidentiary rulings of the trial court. First under attack are the admissions of Government Exhibits 1 through 7 and 13. The basis of the challenge is their belated disclosure to defense counsel. On June 1, 1970, in its discovery motion, defendant sought to inspect and copy any documents in the Government‘s possession “which the government will introduce at the trial of this case or which contain information or evidence favorable to the defendant * * *.” The Government agreed to comply. Although the trial was first set for November 30, 1970, the cause was not actually called for jury trial until October 6, 1971. The Government‘s case was tried by Assistant United States Attorney Flynn of Hammond, Indiana, and James Moore of the Department of Justice in Washington, D.C. Mr. Moore came into possession of certain documentary material on the issue of the navigability of the Grand Calumet River in late September 1971. We are advised that the first time that Moore, Flynn and their navigability witness, Peter Machinis of Chicago, had an opportunity to discuss the documents together was on Tuesday morning, October 5, 1971, in Hammond. Defendant admits the receipt of copies of Exhibits 1, 2, 3, 5, 6 and 7 on that afternoon. As the district judge permissibly stated in admitting these exhibits and Exhibit 4, which was first shown to defense counsel on the morning of October 6th before trial commenced:
“The [discovery] motion did not require any materials that the Government may have pertaining to this case, but asks for materials which the Government will introduce at the trial. Until the Government makes that determination to use it, or introduce, or attempt to introduce it at the trial, there was no duty to disclose.”
Moreover, as the district judge also stated, defense counsel made no prompt motion for a continuance on the ground that there was inadequate opportunity properly to analyze or assess the material.
Exhibit 13, which was a compilation of Exhibits 1, 2 and 3 and was prepared by government witness Machinis and his assistant Mr. Kloker, was also received in evidence over defendant‘s objection. Exhibit 13 was first exhibited to defense counsel on October 6th before the opening of the trial. It was prepared on October 1st in six hours, the same day that Machinis received the underlying
Defendant did not begin its case in chief until October 11th and could have recalled Machinis as its witness or secured another surveyor to testify concerning the exhibits in question. Furthermore, exhibits of this nature were equally available to defense counsel. Since these documents were produced under the discovery motion as documents “which the government will introduce at the trial,” defense counsel was on notice of their prospective use. Therefore, the district judge was justified in overruling as untimely a motion for continuance made after the empaneling of the jury.
We hold that the court‘s rulings with respect to the admission of these eight exhibits did not amount to an abuse of discretion. Defendant has not shown that the Government decided to use the exhibits substantially before they were exhibited to defendant. Similar documentary materials were available to defendant. There is no showing of prejudice, and any right to continuance came too late. In these circumstances, Rule 16(g) of the
Defendant asserts that the district court improperly excluded its Exhibits C and D. These exhibits were offered on the issue of navigability and as support for defendant‘s theory that the Government was, in effect, estopped under pain of due process from claiming the river was navigable. Exhibit C consisted of an April 8, 1969, Army Corps of Engineers public notice listing certain waterways within the Chicago District where the Corps of Engineers exercises “active jurisdiction” against obstructions to navigation and requires work permits under Section 10 of the Refuse Act (
This case was tried on the theory that the Grand Calumet River was navigable in its state of nature and must therefore be deemed navigable thereafter as a matter of law. Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847; United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 85 L.Ed. 243. Defendant does not challenge this legal proposition. The district court correctly excluded Exhibit C because whether the Corps of Engineers exercised control of works on a particular waterway would not be determinative of whether the waterway is navigable in the legal sense. Furthermore, the exhibit was issued in 1969 and did not relate to the navigability of the river at the time of these 1967 offenses and, as the district judge remarked, would “only tend to confuse the jury.”
The Government‘s historical evidence evidently satisfied the jury that this portion of the Grand Calumet River was once a navigable river. Once found to be navigable, the water remained so. Economy Light & Power Co., supra. Exhibits C and D were properly excluded as not material to the determination of navigability in law.
With respect to the other purpose for which the exhibits were offered—to establish the existence of an administrative policy to treat the Grand Calumet River as non-navigable and thereby estop the Government from claiming defendant should have applied for a permit—the exclusion was likewise correct. Exhibit C was properly excludible by virtue of its chronology alone; defendant hardly could have relied on the 1969 notice in 1967. Upon thorough examination of Exhibit D, the court below correctly found, “it certainly is not an indication of any policy by the Corps of Engineers to the effect that those [waters] over which the prior approval of bridges will not be required [are] considered by them as nonnavigable.” It was stipulated that between the date of Exhibit D in May 1958 and that of Exhibit C in April 1969, there were no known public notices dealing generally with the subject of navigable waters.
We have considered the remaining arguments asserted by defendant and deem them to be without merit. Therefore, the judgment is affirmed.
Affirmed.
Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.
ON APPELLANT‘S PETITION FOR REHEARING.
ORDER
In support of its petition for rehearing defendant argues, in part, that the Supreme Court‘s recent opinion in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), requires that defendant have the opportunity to prove that it was affirmatively misled by regulations and other official pronouncements of the Corps of Engineers into believing that
The petition for rehearing is denied.
Notes
“Under Section 10 as well as Section 13 relating to the discharge or deposit of refuse matter in navigable waters, the commission of any of the acts forbidden, not their results, constitutes the offense and the commission subjects the offending party to the prescribed penalty regardless of whether or not there is any actual injury to navigation,” Lecture by Judge G. W. Koonce, O.C.E., before the Company Officers Class, The Engineer School, Fort Humphreys, Virginia, April 23, 1926, as reported in “Water Pollution Control Legislation—1971 (Oversight of Existing Program),” Hearings Before the H. Comm. on Pub. Works, 92nd Cong., 1st Sess. 284, 290 (emphasis added).
“Deposit of Refuse. Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), prohibits the deposit in navigable waters generally of ‘refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state‘. The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive of or injurious to navigation.” 33 C.F.R. § 209.395 (1967).
“Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.” 33 C.F.R. § 209.200(c)(2).
“The Secretary of the Army is authorized and empowered to prescribe regulations to govern the transportation and dumping into any navigable water, or waters adjacent thereto, of * * * refuse materials of every kind or description, whenever in his judgment such regulations are required in the interest of navigation.”