APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA; D.C. CRIM. No. 78-00218-01, 02 and 03
Before Adams and Rosenn, Circuit Judges, and Lacey, District Judge.*fn*
Since the enactment in 1948 of the Federal Water Pollution Control Act, 62 Stat. 1155 ("the Act"), the Government has, until recent years, generally enforced its provisions to control water pollution through the application of civil restraints.*fn1 In this case, however, the Government in the first instance has sought enforcement of the Act as amended in 1972, 33 U.S.C.A. §§ 1251-1376 (Supp.1973), against an alleged corporate offender and its officers by criminal sanctions. Whether the Government may pursue the criminal remedies under the Act before instituting a civil action or before giving written notice of the alleged violation is the principal issue presented in this appeal.
The appellants were convicted by a jury on six counts of willfully or negligently discharging pollutants into a navigable water of the United States without a permit, in violation of 33 U.S.C. §§ 1311(a), 1319(c). The corporate defendant, Frezzo Brothers, Inc., was fined $50,000, and the individual defendants, Guido and James Frezzo received jail sentences of thirty days each and fines aggregating $50,000. The Frezzos appeal from the trial court's final judgment of sentence. We affirm.
Frezzo Brothers, Inc., is a Pennsylvania corporation engaged in the mushroom farming business near Avondale, Pennsylvania. The business is family operated with Guido and James Frezzo serving as the principal corporate officers. As a part of the mushroom farming business, Frezzo Brothers, Inc., produces compost to provide a growing base for the mushrooms. The compost is comprised mainly of hay and horse manure mixed with water and allowed to ferment outside on wharves.
The Frezzo's farm had a 114,000 gallon concrete holding tank designed to contain water run-off from the compost wharves and to recycle water back to them. The farm had a separate storm water run-off system that carried rain water through a pipe to a channel box located on an adjoining property owned by another mushroom farm. The channel box was connected by a pipe with an unnamed tributary of the East Branch of the White Clay Creek. The waters of the tributary flowed directly into the Creek.
Counts One through Four of the indictment charged the defendants with discharging pollutants into the East Branch of the White Clay Creek on July 7, July 20, September 20, and September 26, 1977. On these dates Richard Casson, a Chester County Health Department investigator, observed pollution in the tributary flowing into the Creek and collected samples of wastes flowing into the channel box. The wastes had the distinctive characteristics of manure and quantitative analysis of the samples revealed a concentration of pollutants in the water. The Government introduced meteorological evidence at trial showing that no rain had been recorded in the area on these four dates. Based on this evidence, the Government contended that the Frezzos had willfully discharged manure into the storm water run-off system that flowed into the channel box and into the stream.
Investigator Casson returned to the Frezzo farm on January 12, 1978, to inspect their existing water pollution abatement facilities. Guido and James Frezzo showed Casson both the holding tank designed to contain the waste water from the compost wharves, and the separate storm water run-off system. Casson returned to the farm on May 9, 1978 with a search warrant and several witnesses. This visit occurred after a morning rain had ended. The witnesses observed the holding tank overflowing into the storm water run-off system. The path of the wastes from the Frezzo holding tank to the channel box and into the stream was photographed. James Frezzo was present at the time and admitted to Casson that the holding tank could control the water only 95% Of the time. Samples were again collected, subjected to quantitative analysis and a high concentration of pollutants was found to be present. This incident gave rise to Count Five of the indictment.
Additional samples were collected from the channel box on May 14, 1978, after a heavy rain. Again, a concentration of pollutants was found to be present. This evidence served as the basis for Count Six of the indictment. At trial, the Government introduced evidence of the rainfall on May 9 and May 14 along with expert hydrologic testimony regarding the holding capabilities of the Frezzos' tank. The Government theorized that the holding tank was too small to contain the compost wastes after a rainstorm and that the Frezzos had negligently discharged pollutants into the stream on the two dates in May.
The jury returned guilty verdicts on all six counts against the corporate defendant, Frezzo Brothers, Inc., and individual defendants, Guido and James Frezzo. The trial court denied the defendants' motions for judgment of acquittal and new trial in a memorandum opinion, United States v. Frezzo Brothers, Inc., 461 F. Supp. 266 (E.D.Pa. 1978).
The Frezzos first argue that the Administrator of the Environmental Protection Agency must either give them some notice of alleged violations of the Federal Water Pollution Control Act, or institute a civil action before pursuing criminal remedies under the Act, Judge Broderick, the trial judge, rejected this argument, 461 F. Supp. at 268, relying primarily on United States v. Phelps Dodge, 391 F. Supp. 1181 (D. Ariz. 1975), which held that ...