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United States v. M/G Transp. Servs., Inc.

Citation: 29 ELR 21097
No. 97-3909, 173 F.3d 584/(6th Cir., 04/22/1999)

The court reverses a district court's acquittal of a tow boat company, a company officer, and the boat's captains for violating the Federal Water Pollution Control Act by dumping pollutants into a river without a permit. The district court acquitted the defendants after a jury found them guilty. The court first holds that the district court erred in ruling that because the defendants could never receive a permit for their discharges, the prosecution of the defendants for discharging pollutants into the river without a permit violated their due process. Contrary to the district court's assumptions, permits could be issued for any controlled discharge of pollutants into the nation's rivers. In this case, however, the sheer quantity of pollutants dumped would not have been allowed, and pollutants that were not processed properly would not have been allowed. In addition, affirming the district court's due process decision would grant businesses the incentive not to obtain permits prior to discharging pollutants. The court next holds that sufficient evidence supported the convictions of the company and the company officer. When "on or about" language is used in an indictment, as with the indictment of the company and the company officer, proof of the exact date of an offense is not required as long as a date reasonably near that named in the indictment is established. Further, uncontroverted evidence established that the company's boats burned trash and dumped the ash and other residue onto the rivers without a permit. Moreover, trial testimony satisfactorily established the nature of the items burned and dumped into the river. Similarly, the court holds that sufficient evidence was offered to support the boat captains' convictions. From the trial testimony, the jury could reasonably infer that the captains knew of the illegal dumping of pollutants. Also, the captains failed to insulate themselves from liability by requesting proper disposal and, thus, justified the jury's determination that they were responsible for the illegal dumping of pollutants.

Counsel for Plaintiff
James A. Morgulec
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Glenn V. Whitaker
Vorys, Sates, Seymour & Pease
221 E. 4th St., Ste. 2100, Cincinnati OH 45201
(513) 723-4000

Before Martin and Clay, JJ.