ELR Citation: ELR 20097
No(s). T-CR-1625 (D. Kan. Nov 18, 1971)

Criminal action for discharging ammonia into a tributary of a navigable river in violation of the Refuse Act does not deny defendant equal protection of the laws although the statute is selectively enforced. Defendant has not alleged that the discriminating enforcement is "invidious because premised upon an unjustifiable standard. The statute is not unconstitutionally vague. The statute's legislative history, and the interpretation it has received by the Supreme Court, adequately advise the citizen what substances may not be discharged into navigable waters. The Information charging defendant is adequate even though it does not specifically allege that defendant's discharges were not within the statute's exemption of municipal sewage. Congress has the constitutional power to prohibit the discharge of refuse into any waterway which flows into a navigable waterway. Defendant's contention that ammonia which is discharged into the tributary of a tributary of a navigable waterway does not violate the statute, or that if it does the statute is beyond the power of Congress, is without merit. Nine counts of the ten count Information are dismissed because the decision to discharge ammonia arose from one managerial decision, a single impulse to commit a continuing act.

Counsel for Plaintiff
Roger K. Weatherby, Asst. U.S. Attorney
Federal Building
424 Kansas Avenue
Topeka, KS 66603

Counsel for Defendant
Leonard O. Thomas
Weeks, Thomas, Lysaught, Bingham & Johnston, Chartered
Home State Bank Building
Kansas City, KS 66101