ELR Citation: ELR 20153
No(s). s. 94-5796 et al (4th Cir. Oct 6, 1997)

The court affirms, over dozens of challenges, the Federal Water Pollution Control Act (FWPCA) criminal convictions of two wastewater treatment and oil reclamation operators for the illegal direct discharge of pollutants to a public sewer system. The court first holds that it has subject matter jurisdiction. The court rejects the operators' assertions that the FWPCA does not extend to the public sewer system and that Congress lacks the constitutional power to regulate such waterways. The FWPCA clearly provides for regulation of discharges into public sewer systems. And the U.S. Supreme Court has held that Congress has the constitutional authority to regulate pollutant discharge into sewer systems and other non-navigable waters. The court next holds that the waste operators failed to show how the district court abused its discretion and violated their due process by limiting the operators' access to pretrial services or declining to provide publicly paid representation for their corporate entity. The wastewater treatment operators were given the resources necessary for the preparation of a defense, and they failed to explain how the outcome might have been different if they had been provided with more resources. In addition, neither the Sixth Amendment to the U.S. Constitution nor the Criminal Justice Act provides that counsel must be appointed, at public expense, to represent a corporation in criminal proceedings. The court then rejects the operators' argument that the FWPCA is unconstitutionally vague and holds that the operators received the constitutionally required notice of the illegal nature of their act. The court also rejects the operators' claim that the discharge permits issued to their business were unnecessarily strict and arbitrary. The permits require challenges to discharge limitations to be raised within 30 days of the permit's receipt. The operators never challenged the discharge limits and, thus, they cannot contest those limits on appeal. In addition, the operators' sole support for its claim that the permit levels were too severe is that, for two pollutants, the discharge level was lower than the drinking water standards for that pollutant. The regulatory program for discharge into sewers under the FWPCA serves a different purpose and uses different means than the drinking water standards. The court next holds that the affidavit used to secure a search warrant of the operators' business presented the magistrate with facts sufficient to believe the operators were engaged in illegal activity. The court finally rejects the operators' challenge to their indictment. The first two paragraphs of their indictment explaining the FWPCA and its regulatory scheme were not prejudicial surplusage. And, even if the operators' claims to the inaccuracy of the government's discharge tests is true, the operators are unable to show that no reasonable trier of fact could vote to convict.

Counsel for Plaintiff
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Edward A. Fiorella Jr.
Harkey, Lambeth, Nystrom, Fiorella & Morrison
Morehead Corporate Plaza
1043 E. Morehead St., Ste. 300, Charlotte NC 28204
(704) 377-4700

Before Motz and Blake, JJ.