ELR Citation: ELR 20919
No(s). 89 CR 1008 (N.D. Ill. Jun 11, 1990)

The court holds that an indictment against two electroplating companies and their president charging that defendants wilfully and negligently discharged wastewater in violation of the Federal Water Pollution Control Act's (FWPCA's) pretreatment standards adequately alleged the necessary elements of the offense. The court first holds that the indictment need not allege anything about the effects of the discharges on publicly owned treatment works (POTWs), because the categorical pretreatment standards applicable to defendants' facilities apply to the facilities' own discharges and are independent of the general pretreatment regulations governing the facilities' impact on POTWs. The court refuses to consider defendants' argument that the Environmental Protection Agency's (EPA's) categorical pretreatment regulations for electroplating firms are unlawful. FWPCA §309(b)(1) provides that judicial review of pretreatment standards is in the courts of appeals and must be filed within 90 days of EPA's issuance of the standard. The court next refuses to declare FWPCA §307(b), which requires EPA to enact pretreatment regulations, unconstitutional on the grounds that it does not require that the regulated entity's discharges affect interstate commerce or navigable waterways. The court holds that the indictment alleges facts that indicate that § 307(b) would be constitutional as applied to the defendants. Defendants could be engaged in interstate commerce, their discharges could have an effect on interstate commerce, and the discharges could have an impact on the general welfare of the citizens of the United States. The court holds that the indictments need not allege a link between defendants' activities and a proper subject for federal regulation. Finally, the court holds that defendants may be charged with violating the categorical pretreatment standards prior to February 1987, when EPA's definitions of "pass through" and "interference" in the general pretreatment regulations became final. The categorical standards are completely separate from the general standard and EPA thus could amend the general standards without affecting the categorical standards.

Counsel for Plaintiffs
John Farrell, Ass't U.S. Attorney
219 S. Dearborn St., Rm. 1500, Chicago IL 60604
(312) 353-5300

Counsel for Defendants
John L. Sullivan
221 N. LaSalle St., Ste. 1938, Chicago IL 60601
(312) 855-1289