decided as amended march 18 1981.: March 4, 1981.
UNITED STATES OF AMERICA
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from the holding tank did not require a permit due to the exclusion in 40 C.F.R. §§ 125.4(i) and 125.53(a) (1978) (repealed).*fn5 These regulations exempted certain agricultural pollution from the statutory permit requirement.*fn6 The Government moved for summary judgment.*fn7 The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 this section:
"(1) The term "agricultural point source' means any discernible, confined and discrete conveyance from which any irrigation return flow is discharged into navigable waters.
"(2) The term "irrigation return flow' means surface water, other than navigable waters, containing pollutants which result from the controlled application of water by any person to land used primarily for crops, forage growth, or nursery operations.
"(3) The term "surface water' means water that flows exclusively across the surface of the land from the point of application to the point of discharge."
All parties agree that the discharges of manure from the holding tank were not irrigation return flows as defined in section 125.53(2). The literal language of section 125.53(1) stated that conveyances of irrigation return flows were the only agricultural point sources. Thus, the system discharging the manure was not an agricultural point source under the regulations. Section 125.4(i) appeared to state that no agricultural pollution required a permit with a single exception: pollution from agricultural point sources. Since petitioners' discharges were not from agricultural point sources, the pollution would not have required a permit (assuming the pollution was agricultural).
The district court avoided the effect of this language in the regulations by relying on the administrative history.*fn11 It held that the holding tank was an agricultural point source even though the tank was not conveying irrigation return flows. We do not believe that the administrative history supports this holding.*fn12 Statements accompanying the proposed rules (which later became effective) read:
"INTENT OF REGULATIONS
"The intent of the regulations is to exclude from the NPDES permit program all natural runoff from agricultural land which results from precipitation events. Because most water pollution related to agricultural activities is caused by runoff resulting from precipitation events and is nonpoint in nature, it is not and should not be subject to the NPDES permit program as it has been administered to date."
41 F.R. 7694 (1976). Precipitation apparently was a cause of the runoff from the holding tank. Frezzo Bros., 602 F.2d at 1125. Other statements in the Federal Register indicate that, under the regulations, all agricultural pollution was caused by either (1) precipitation or (2) irrigation return flows.
"Thus, in formulating the criteria for defining agricultural point sources EPA has specifically excluded those sources that may be furrows, ditches, and drains channeling natural runoff, and specifically included irrigation return flow ditches and drains that convey water resulting from its controlled application by man to navigable waters. When water pollution from irrigation ditches results from precipitation events, that pollution is nonpoint in nature. However, when discharges from irrigation ditches result from the controlled application of water by any person, that pollution is considered a point source and subject to the program proposed herein."
Id.*fn13 This passage sets out two categories of agricultural pollution. The district court appears to have created a third category of agricultural pollution: discharges not resulting from irrigation return flows yet still requiring a permit. We decline to uphold the denial of the section 2255 petitions on this record, since that denial was based on this third category. We hold that, if petitioners' discharges were agricultural pollution, then petitioners needed no section 402 permit under the language in the former regulations.*fn14
None of the parties has raised on this appeal the issue whether the pollution was in fact agricultural;*fn15 the parties have given no indication that they wish this court to decide the issue. The petitions in the district court raised this issue, but that court never decided whether the pollution was agricultural. The district court has heard no evidence*fn16 and this is an issue of fact. Deciding the issue against either party would be unfair without giving them an opportunity to present evidence and develop a record. Since the record at this stage*fn17 is insufficient for this panel to decide whether agricultural pollution was present here, we will remand the case for further proceedings.
The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.