United States v. United States Steel Corp.

No. 70 CR 148 (N.D. Ill. July 28, 1971)

Defendants' motion to dismiss denied. To establish violation of section 407 of Refuse Act of 1899, government need not prove that refuse discharge impeded navigation. Willful, knowing discharge into navigable waters without permit is sufficient to establish offense. Nor must government allege that discharge violated applicable state or federal water quality standards since Water Quality Act specifically provides that it neither affects nor impairs Refuse Act provisions. Act passed in 1910 specifically forbidding discharges into Lake Michigan does not supercede 1899 Act, though subsequent prosecution for same offense under 1910 Act might be double jeopardy. Defendant corporation is entitled to bill of particulars in order to obviate possibility of two prosecutions for same offense, but individual defendant, charged with only one violation, is not entitled to same. Government need not provide defendants with theory of case in discovery, but must provide defendants with statements they made to government agency or others to be used in prosecution and with any evidence in government hands tending to show innocence.

Counsel for Plaintiff:
Howard M. Hoffman
U.S. Attorney's Office
U.S. Courthouse
219 S. Dearborn Street
Chicago, Illinois
(312) 353-5300

Counsel for Defendant, U.S. Steel Corp.:
Henry L. Pitts
Jay A. Lipe
208 South La Salle Street
Chicago, Illinois
(315) FR2-5600

Counsel for Defendant, Charles Kay:
George J. Cotsirilos
1 North La Salle Street
Chicago, Illinois
(315) Andover 3-0345

[1 ELR 20493]

Napoli, D.J.:

This is a prosecution for the alleged pollution of Lake Michigan in violation of section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407. The discharge, it is alleged in the indictment, occurred at the corporate defendant's South Works when iron oxide and other blast furnace waste solids were discharged into the Lake. Five occurrences in as many consecutive days are charged in five counts of the indictment. The sixth court charges the defendant Kay with aiding, abetting, authorizing and instigating the discharge by U.S. Steel contained in Count III.

Defendants have moved to dismiss the indictment, for production of a bill of particulars and for discovery. The motions to dismiss of the respective defendants are substantially the same, as are their memoranda of law and the court will treat them together without individual consideration.

MOTION TO DISMISS

The first ground raised by defendants is that the purpose of section 407 is to prevent obstructions to navigation rather than an anti-pollution measure. An extensive review of the legislative history of section 407 and its predecessors is made in order to support this theory.Defendants thusly argue that either they can not be prosecuted for polluting under an anti-obstruction statute; or that a necessary element of the offense must be an obstruction of or impediment to navigation, which has not been charged in the indictment; or that water standards contained in recent anti-pollution statutes must be read into section 407. The court believes that this position is not well taken and affords no support for the requested relief. In the case of La Merced (United States v. Alaska Southern Packing Co.) 84 F.2d 444 (C.C.A. 9, 1936), a similar argument was considered and rejected. Two offenses are contained in section 407 which are separated by a semicolon. The first being the discharge of refuse matter into a navigable water; the second is the placement of material on the bank of a navigable water where it may be washed into said water, whereby navigation may be obstructed. Obstruction is clearly an element of the second offense by the language of the statute but omits this element from the first offense. This court concurs with the holding in La Merced that section 407 is not ambiguous and must be read literally, hence there is no need to resort to the legislative history of the statute. Thus, regardless whether or not the primary purpose of Congress in enacting section 407 was to prevent obstruction of navigation, its express language certainly does not prohibit utilizing the statute as an anti-pollution measure. It is not the function of the judiciary to amend this statute in order to comport it more fully with the intent of Congress, assuming that the defendants' interpretation of the statute is correct. If any discrepancy exists, this court is confident that Congress will act speedily to rectify it. Therefore, the court believes that the discharge of refuse matter into a navigable water without an allegation of any obstruction to navigation states an offense under section 407. See La Merced.

The Corps of Engineers has promulgated certain regulations under section 407 which deal with navigation and obstructions thereto. Defendants contend that these regulations demonstrate that section 407 was intended to deal with navigation rather than pollution. Judge Robson, Chief Judge of this district, in United States v. Interlake Steel Corporation, 297 F. Supp. 912, 915 (N.D.Ill. 1969), held that while such regulations of the Corps may be entitled to great weight, they were by no means conclusive upon the Corps or the courts. See also, United States v. Republic Steel Corporation, 362 U.S. 482, 490 (1960). In light of the decisions in Interlake and Republic Steel, and the fact that the Corps is concerned primarily with navigation and can not be expected therefore to adopt anti-pollution regulations, the court believes that the interpretation of section 407 in the preceding paragraph is correct.

Defendants next contend that the indictment fails to charge all of the essential elements of an offense under section 407 and should be dismissed for that reason. First, it is argued that the discharge must be wilful and knowing. Counts I through V charge that the deposits were wilful and unlawful. Count VI charges Kay wilfully, knowingly and unlawfully aided, abetted, authorized and instigated the discharge. Second, that the discharge must be of refuse matter which may obstruct, hinder or endanger navigation. The indictment charges with particularity that refuse matter of a certain type was discharged. The court's previous conclusion renders moot the claim of the necessity of obstruction to navigation. See also, Myrtle Transportation Company v. Port of Coquille River, 86 OR. 311, 168 P. 625 (1917). Thirdly, that the streets-to-sewers exception must be negated in the indictment. However, this is contrary to the rule in the Seventh Circuit, as enunciated by the Court of Appeals in United States v. Rowlette, 397 F.2d 475, 479 (1968), quoting McKelvey v. United States, 260 U.S. 353 (1922). No cogent reason appears for making an exception in the case at bar. Fourth, that the discharge must be made into navigable waters of the United States. This has been charged in the indictment. Fifth, that the discharge must be such as to impede or endanger navigation, a claim previously rejected by this court. Sixth, that the discharge be committed without a permit or consent of the Corps of Engineers. Section 407 allows the Secretary of the Army to permit dumping when such will not injure anchorage and navigation. Again, this provision is an exception to the statute and need not be set out in the indictment. The seventh is that the prosecution must be brought at the request of certain officials designated in 33 U.S.C. § 413. Again, the Interlake decision, citing United States v. Burns, 54 F.351 (C.C.W.Va. 1893), adequately disposes of the contention. The final contention, that a discharge must be in violation of the water quality standards, rules, regulations and compliance schedule of federal and state water quality control programs will be considered later in conjunction with defendants' other claims.

Section 407 prohibits the discharge of refuse matter into navigable waters generally. Section 421 of Title 33, 36 Stat. 593 (1910), prohibits such a discharge "into Lake Michigan, at any point opposite or in front of the county of Cook, in the State of Illinois, or the county of Lake in the State of Indiana, within eight miles from the shore of said lake. . . ." In fact sections 420 to 424a are all applicable to limited geographical locales. Section 421 provides for a smaller fine and lacks a prison sentence for its violation. Defendants urge that they are entitled to be indicted, if at all, under the more specific statute, § 421, viewing it as carving an exception out of § 40. However, defendants in a criminal prosecution have no right to choose the statute under which they are brought to the bar of justice. Since Congress presumably was aware of § 407 when it enacted the "Chicago" statute and did not amend § 407, then the only possible conclusion is that it intended § 421 to supplement § 407. Also, there are differences between the two statutes. Section 421 permits some dumping if the discharge is made inside of a breakwater so arranged as not to permit the escape of such refuse into the body of the lake. The court does agree that this prosecution would bar a subsequent prosecution under § 421. Until a later prosecution is commenced, however, a claim of double jeopardy is premature.

The main contention of defendants is that recently enacted water quality control standards supersede §§ 407, 421, or at least must be reconciled with them. The federal statute consists of the Water Quality Act, chapter 23, sections 1151-1175 of Title 33. A comprehensive program is established to combat water pollution, based primarily on encouragement of state action and research. Section 1160 provides for the establishment of water quality standards, by adoption of state standards. An elaborate administrative process is called for before the standards are set by the federal government. Once standards have been set, any alleged polluter is under an obligation to file reports detailing his discharges and the steps taken to prevent or reduce them. A fine is possible for failure to so comply. Actions for abatement are authorized if action reasonably calculated to secure compliance is not taken.

Section 1174 of the above mentioned act provides:

[1 ELR 20494]

This chapter shall not be construed as . . . (2) affecting or impairing the provisions of sections 407, 408, 409 and 411 to 413 of this title. . . .

Supporting this view is the Interlake decision, wherein Judge Robson soundly disposed of this argument, saying that in order to reach an accommodation between the two statutes, "this court would be required to repeal an Act of Congress and reverse a decision of the Supreme Court (of the United States)." This Judge Robson refused to do. This court agrees.

The court notes that the President has issued Executive Order No. 11574, December 23, 1970, 35 F.R. 19627, entitled "Administration of Permit Program." A permit program is established under authority of § 407, the Water Quality Act, and other statutes in order to regulate the discharge of pollutants and refuse matter into navigable waters. In essence, the Water Quality Act standards will be read into these permits.

Accordingly, the defendants' motion to dismiss the indictment is denied.

BILL OF PARTICULARS

Each defendant has made a demand for separate bills of particulars. The following is the court's order on these demands.

United States Steel

1. This request as well as the next are madeaccording to the defendant to protect against multiplicity of the indictment and double jeopardy. The attorney for the government has agreed to tender this information to both defendants. Therefore, this request is granted.

2. For the reasons stated above, this request is also granted.

3 to 7 and 13. These requests seek the theory of the government's case.Cited in support is the case of United States v. Tanner, 279 F. Supp. 457, 474 (N.D.Ill. 1967). While the case does hold that the defendant is entitled to know the theory of the government's case, the great weight of authority is contrary. United States v. Doyle, 234 F.2d 788 (7th Cir. 1956), cert. den. 352 US 893; United States v. Louis Carreau, Inc., 42 F.R.D. 408 (S.D.N.Y. 1967); United States v. Luros, 243 F. Supp. 160 (N.D.Ia. 1965); United States v. Fruehauf, 196 F. Supp. 198 (S.D.N.Y. 1961); United States v. Schillaeu, 166 F. Supp. 303 (S.D.N.Y. 1958); and United States v. Clark, 10 F.R.D. 622 (W.D.Mo. 1951). The court concurs with the majority which it feels is also a sounder position.

8 to 12. These requests are clearly immaterial to this case as not being elements of the offense for the reasons stated in denying the motions to dismiss the indictment.

Charles Kay

1,3 and 6. These seek either the government's theory of the case or for evidence, hence they are not the proper object of a bill of particulars.

4 and 5. In light of the court's opinion denying the motion to dismiss these requests seek information concerning non-elements of the case. The requests are denied.

2. Since Count VI charges an act by Kay on a single day, September 28, 1969, no danger of multiplicity or double jeopardy arises as in the case of the corporate defendant. This request is also denied.

MOTIONS FOR DISCOVERY

United States Steel

1(a). The first request pursuant to Rule 16(a), F.R.Cr.P., is for copies of any reports or statements of the defendant made to any governmental agency which is in the possession of the government. Objection has been made by the government for the reason that the defendant failed to identify the documents it seeks to discover or to indicate their relevance. However, this overlooks the fact that it is impossible for the defendant to know which of the reports or statements, oral or written, of its agents is in the possession of the government. Also, any such documents are obviously relevant to this prosecution. Further, under Rule 16(a) the burden is upon the government to present cogent reasons for denying the requested documents. Failing this, the request should be granted. United States v. Isa, 413 F.2d 244 (7th Cir. 1969) and United States v. Morrison, 43 F.R.D. 416 (N.D.Ill. 1967). The attorney for the government is therefore ordered to make available for copying and inspection any reports, correspondence, statements, or other memorandum or summaries of conversations or documents in its possession, custody or control, the existence of which is known or may become known through the exercise of due diligence, submitted by the defendant to any governmental agency relating to the events charged in the indictment, excepting documents produced by United States Steel in response to a grand jury subpoena.

1(b). This request seeks the same type of discovery with the exception that documents submitted to non-governmental sources are sought. This district has made it a practice to order disovery under Rule 16(a) even though the statements were not made to a governmental agency. United States v. Feld, 70 CR 109 (N.D.Ill. 1970) (Hoffman, J.) and United States v. Lapa, 70 CR 110 (N.D.Ill. 1970) (Lynch, J.). Therefore, the attorney for the government is ordered to make available for copying and inspection any reports, correspondence, written statements, or memoranda, summaries or recordings of oral statements relating to the events charged in the indictment, which are in its possession, custody, or control, the existence of which is known or may become known through the exercise of due diligence, make or submitted by the defendant or its agent to any person whether or not a government agent.

2. Pursuant to Rule 16(a)(2) copies of scientific tests, other than those voluntarily produced heretofore, are requested. The government has answered that additional results of tests do not exist. Therefore, the request is denied.

3. Far-ranging requests are sought pursuant to Rule 16(b), often repeating the above items. Rule 16(b) discovery is conditioned upon a materiality to the preparation of the defense and the reasonableness of the request. The instant request, either repetitious or apparently a "fishing expedition" as the government asserts, has not met either of these two standards. However, request 3(d) seeks discovery of items favorable to the defendant under the doctrine of Brady v. Maryland, 373 U.S. 83 (1983). As the government has not offered to produce these items nor denied their existence, the attorney for the government is ordered to produce any evidence favorable to the defendant relating to the events charged in the indictment which it has in its possession, custody or control, the existence of which is known or may become known through the exercise of due diligence. The remaining requests in item 3 are denied.

Charles Kay

1. This request is substantially the same as U.S. Steel's request 1(b) for discovery. The government has answered that it has no such reports or statement. Therefore, the request is denied.

It is so ordered.