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United States v. Pennsylvania Indus. Chem. Corp.

Citation: 2 ELR 20264
No. No. 71-1840, 461 F.2d 468/4 ERC 1241/(3d Cir., 05/30/1972) Rev'd & remanded

Liquid industrial waste treated to comply with federal standards set under the Water Pollution Control Act of 1948 and discharged into the navigable Monogahela River falls within the prohibition of the Refuse Act of 1899, a prohibition that remains unchanged by those standards. A privately owned sewage pipe is not a municipal sewer and therefore not within the "streets and sewers" exception to the Refuse Act. But where the Army Corps of Engineers permit program contemplated by the Refuse Act is not in operation, defendant cannot be convicted under the Act because Congress did not intend criminal penalties for people who failed to comply with a non-existent regulatory program. Further, defendant has alleged reliance on seventy years of consistent government interpretation and behavior, as well as on the direct representation of the Corps of Engineers, in choosing to proceed with what was reasonably believed to be a lawful dumping. Defendant cannot be convicted with due process of a criminal violation of the Refuse Act if affirmatively misled by the Corps of Engineers. The case is remanded to the district court to provide an opportunity to prove that a permit program was not in existence at the time of the alleged offense, and that defendant was affirmatively misled by the Corps of Engineers.

Counsel for United States
Richard Thornburgh United States Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, Pa. 15219

Counsel for Defendant
Harold Gondelman
1018 Frick Bldg.
Pittsburgh, Pa. 15129

Before ADAMS, ROSEN, Circuit Judges and STAPLETON, District Judge