Adams, and Rosen, Circuit Judges and Stapleton, District Judge. Stapleton, District Judge (concurring).
The issues in this appeal center on the parameters of the Rivers and Harbors Act of 1899 with regard to discharges from an industrial plant into the Monongahela River,*fn1 whether in the circumstances of this case a crime has been committed within the terms of the Act, and whether, if the Act applies, the conviction in this case comports with due process considerations.
In August, 1970, two teachers at the McKeesport Campus of the Pennsylvania State University canoed along the Monongahela River for the purpose of determining whether manufacturing operations on the river were discharging pollutants into it. They took samples on two different days -- August 7 and 19 - at two outfalls owned by the defendant, Pennsylvania Industrial Chemical Corp. (PICCO). These were sent to the Allegheny County Testing Laboratory for analysis. Based on the results, the United States Attorney filed a criminal information against PICCO*fn2 on April 6, 1971. Trial commenced before a jury on June 24, 1971, and the jury returned a verdict of guilty on June 29, 1971.
The points with which we deal in this appeal fall into three broad categories: (1) The general applicability of the statute; (2) Its applicability to the particular circumstances of this case; and (3) The due process grounds to be considered even if the statute would otherwise make PICCO's activities criminal.
I. The Statute is Generally
Before evidence was presented, the district court preliminarily instructed the jury that the Government, in order to secure a conviction, was required to prove beyond a reasonable doubt that PICCO had discharged "refuse" matter from its plant, that the "refuse" was discharged into a "navigable water of the United States," and that the discharge was not "flowing from streets and sewers and passing therefrom in a liquid state," one of the exemptions set forth in the Act. The parties stipulated that PICCO owned the pipes through which the discharges entered the river, and that the Monongahela River is a "navigable water of the United States", thereby narrowing the issues for the jury.
PICCO first contends that the Act was intended to make criminal only the discharge of refuse which would impede navigation. Although the legislative history is equivocal on this point, we need look no further, however, than United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (3d Cir. 1967), for this Court's holding that the Government need not prove that the discharge created an impediment to navigation in order to secure a conviction. There, petroleum products were spilled on the defendant's land, and, by force of gravity, flowed into navigable water. Both sides there agreed that the defendant was not guilty of violating the second clause of section 407, which forbids the impeding or obstruction of navigation. Yet this court affirmed the conviction based on the first clause, dealing with the discharge of "any refuse". Thus, the Act does apply to discharges of the type here in question, and gives no one the right to discharge "refuse matter of any kind" into "any navigable water of the United States."*fn3
Next, PICCO contends that, even assuming arguendo that the industrial wastes discharged by it were "refuse", the portion of section 407 excepting refuse matter "flowing from streets and sewers and passing therefrom in a liquid state" from the coverage of the Act applies to the discharges here in issue as a matter of law. To support this position, PICCO relies on various texts and dictionary definitions written circa 1899, the year the Act became law, for the proposition that sewage was commonly defined to include industrial wastes. Congress, however, appears to have had a very different concern when it enacted the exception dealing with refuse matter "flowing from streets and sewers." As one legal scholar has noted:
"The sewage exception in the 1899 federal Refuse Act was designed to differentiate locally authorized from unauthorized discharges. By excepting refuse 'flowing from streets and sewers . . . in a liquid state,' Congress expressed awareness of the construction of public sewers, taking cognizance of the practice of the day of combining storm and sanitary sewers. The important point was not that waste made it through the system in a 'liquid state', but rather that local authorities had some control over who connected to a sewer system." Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U.Pa.L.Rev. 761, 778 (1971) (footnote omitted); cf. United States v. Republic Steel Corp., 362 U.S. 482, 506 n. 27, 80 S. Ct. 884, 4 L. Ed. 2d 903 (Harlan, J., dissenting).
In addition, the definition of sewage suggested by the Supreme Court does not materially differ from that employed by the district court, United States v. Republic Steel, supra, at 490, 80 S. Ct. 884. Moreover, to assert, as does PICCO, that any pipe carrying any wastes may be called a sewer, would erode the salutary command of Congress as stated in the Act in favor of a particular exception. As a matter of law, then, liquid industrial waste flowing through pipes into navigable water is not exempt from the proscriptions of the Act.
The final argument advanced by PICCO in this area of statutory interpretation is that unless section 407 is read in conjunction with the Water Pollution Control Act of 1948, 33 U.S.C. § 1151 et seq., its amendments of 1961 and 1965, and the Water and Environmental Quality Improvement Act of 1970, a conflict among the statutes is created. PICCO contends that, in order to resolve the conflict, the district court should have defined "refuse" to incorporate the water quality standards established pursuant to 33 U.S.C. § 1160(c) (1).
Under the Rivers and Harbors Act of 1899, the discharge of any refuse is made subject to a permit program while the newer statutes provide that discharges are proscribed only when they exceed the applicable water quality control standards. The federal standards set by the newer water quality statutes rely primarily on those of the states, with the proviso that in certain circumstances a federal standard may be applied. PICCO offered to prove at the trial that it had a permit from the Commonwealth of Pennsylvania to discharge its effluents into the Monongahela River, and that the discharges met the federal standards by complying with the criteria established by Pennsylvania.
PICCO reasons that if the Government prevails on this appeal, PICCO will be branded a criminal under one statute while it meticulously observes a companion provision aimed at the same goal. PICCO contends that we should resolve this apparent conflict by reading all the pollution acts in pari materia to reach an accommodation in the same fashion that the Supreme Court in Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970), reconciled the anti-injunction provision of the Norris-LaGuardia Act, 29 U.S.C. § 104, with the portion of the Labor Management Relations Act directing the federal courts to take jurisdiction in certain labor disputes, 29 U.S.C. § 185(a).
Such a course of action would be unjustified under the circumstances of this case on a number of grounds. It is crucial to note that beginning with the Water Pollution Control Act of 1948, Congress has on four separate occasions in the past 24 years specifically stated that section 407 of the Rivers and Harbors Act, ...