United States v. Frezzo Brothers

No. 82-1494 (703 F.2d 62, 18 ERC 1984) (3d Cir. March 29, 1983)

The Third Circuit affirms the district court decision, 12 ELR 21133, denying appellants' petition to vacate their convictions for discharging pollutants from mushroom composting operations without a national pollutant discharge elimination system permit in violation of §§ 301 and 309(c) of the Federal Water Pollution Control Act (FWPCA). The court affirms the district court's ruling that appellants' operation was not agricultural activity, exempt from the permit requirement under Environmental Protection Agency (EPA) rules, but rather manufacturing activity. It also rejects appellants' contentions that the FWPCA and EPA definitions of point source are unconstitutionally vague, and that appellants were denied effective assistance of counsel.

Counsel for Appellants
John Rogers Carroll
Carroll & Carroll
Suite 1206, 1605 Chestnut St., Philadelphia PA 19106
(215) 925-4100

Counsel for Appellee
Bruce J. Chasan, Ass't U.S. Attorney
Rm. 3310, U.S. Cthse., 601 Market St., Philadelphia PA 19106
(215) 597-9482

Before HIGGINBOTHAM, SLOVITER and VAN DUSEN, Circuit Judges.

[13 ELR 20584]

OPINION OF THE COURT

PER CURIAM:

In 1978, a jury convicted appellants of six counts of willfully and negligently discharging pollutants into waterwavs of the United States in violation of 33 U.S.C. §§ 1311(a) and 1319(c) (1978). See United States v. Frezzo Bros., Inc. 461 F. Supp. 266 (E.D.Pa.1978). This court affirmed the convictions. United States v. Frezzo Bros., Inc., 602 F.2d 1123 (3d Cir.1979), cert. denied, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980). The district court dismissed petitions for post-conviction relief, under 28 U.S.C. § 2255, United States v. Frezzo Bros., Inc., 491 F. Supp. 1339 (E.D. Pa.1980), but this court reversed and remanded for an evidentiary hearing to determine whether appellants' conduct was exempted from the criminal sanctions of 33 U.S.C. § 1311(a) and 1319(c) as agricultural activity under 40 C.F.R. § 125.4(i) (1978). United States v. Frezzo Bros., Inc., 642 F.2d 59 (3d Cir. 1981).

The district court found that petitioners' conduct was not agricultural activity; rather, the court found that petitioners' conduct was manufacturing in nature. United States v. Frezzo Bros., Inc., 546 F. Supp. 713 (E.D.Pa.1982). Consequently, it held that the pollution that resulted from petitioners' conduct was not exempted by 40 C.F.R. § 125.4(i) from the criminal sanctions under which they were convicted, 33 U.S.C. §§ 1311(a) and 1319(c). It therefore denied petitioners' request for collateral relief. Petitioners now oppose the district court's decision.

After considering the contentions raised by appellants, to-wit, that (1) the district court erred in interpreting the Environmental Protection Agency's agricultural exclusion regulations, (2) the district court entirely ignored the evidence of record in determining that petitioners' mushroom composting operation was manufacturing rather than agriculture, (3) the government is estopped from arguing and the district court is estopped from finding that petitioners' mushroom composting operation is manufacturing, (4) that the definition of point source in the Water Pollution Control Act and EPA regulations constitute an unconstitutionally vague standard of criminal conduct, (5) petitioners were denied effective assistance of counsel, we will affirm the judgment of the district court.