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United States v. Frezzo Brothers Inc.

decided as amended march 18 1981.: March 4, 1981.

UNITED STATES OF AMERICA
v.
FREZZO BROTHERS, INC. (D.C. CRIM. NO. 78-0218-01); UNITED STATES OF AMERICA V. FREZZO, GUIDO (D.C. CRIM. NO. 78-0218-02); UNITED STATES OF AMERICA V. FREZZO, JAMES L. (D.C. CRIM. NO. 78-0218-03); FREZZO BROTHERS, INC., GUIDO FREZZO AND JAMES L. FREZZO, APPELLANTS



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Before Gibbons, Van Dusen and Weis, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

Guido and James Frezzo and the corporation Frezzo Brothers, Inc., petitioned under 28 U.S.C. § 2255 (1976)*fn1 for relief from their convictions for discharging pollutants into navigable waters without a permit. The district court denied the petitions. United States v. Frezzo Bros., Inc., 491 F. Supp. 1339 (E.D.Pa.1980).*fn2 We have jurisdiction under 28 U.S.C. § 1291 (1976) to decide the appeal from this final order. We reverse the denial of the petitions and remand for further proceedings.

This court's prior opinion in United States v. Frezzo Bros., Inc., 602 F.2d 1123, 1124-25 (3d Cir. 1979), cert. denied, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980), which affirmed the convictions, sets out in detail the facts which led to the original trial. Petitioners grew mushrooms and prepared compost for growing mushrooms. Petitioners stated that after compost is prepared, it is pasteurized to remove ammonia, and then mushrooms are grown in the pasteurized compost. Joint Memorandum of Law in Support of Motions for Collateral Relief, A-23, A-39. On certain dates in 1977-1978, their holding tank containing runoff from the compost overflowed due to heavy rains. The overflow discharged manure and other pollutants through a runoff system into a creek which joins the Delaware River. A jury convicted each of the petitioners on all six counts of discharging pollution "from mushroom compost manufacturing operations"*fn3 without a permit in violation of 33 U.S.C. §§ 1311(a) and 1319(c) (1976).*fn4

The petitions now on appeal claimed that the discharges from the holding tank did not require a permit due to the exclusion in 40 C.F.R. §§ 125.4(i) and 125.53(a) (1978) (repealed).*fn5 These regulations exempted certain agricultural pollution from the statutory permit requirement.*fn6 The Government moved for summary judgment.*fn7 The district court did not explicitly grant the motion for summary judgment, but it denied the petitions without considering any evidence.*fn8 It did not decide whether the pollution was agricultural. It held that petitioners were required to obtain a permit, even if the pollution was agricultural.*fn9

We decide on this appeal only whether the convictions for the discharges from the holding tank, assuming this pollution was from agricultural activities and not from agricultural point sources (see text of regulations on page 61), were consistent with the literal words of the regulations. We conclude that, in light of such assumption, the convictions were not consistent with the regulations. Since we remand for the district court to determine whether the pollution was agricultural, see below, we do not decide the underlying Sixth Amendment claim on this appeal. See note 6 supra.

This court would not affirm criminal convictions if the conduct was not illegal under the plain language of the applicable regulations.*fn10 Thus, we turn to the literal words of the EPA regulations. These rules excluded agricultural pollution, except for discharges from "agricultural point sources," from the permit requirement. Section 125.4(i) of the regulations stated:

"The following do not require an NPDES permit:

"(i) Water pollution from agricultural and silvicultural activities, including runoff from orchards, cultivated crops, pastures, rangelands, and forest lands, except that this exclusion shall not apply to the following:

"(3) Discharges from agricultural point sources as defined in § 125.53, ...."

Section 125.53 read:

"s 125.53 Agricultural activities.

"(a) Definitions. For the purpose of ...


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