ELR Citation: ELR 20466
No(s). s. 92-5075, -5076 (4th Cir. Sep 25, 1992)

The court upholds the felony convictions of a corporation and its sole officer and stockholder for violating the Federal Water Pollution Control Act by discharging pollutants without a national pollutant discharge elimination system (NPDES) permit, even though the jury instructions did not state the law with strict accuracy and the trial court excluded evidence of the original owner's alleged policy of concealing existing environmental problems from prospective purchasers. The convictions stemmed from discharges from a water treatment system located on the plant site installed to collect, divert, treat, and discharge runoff and leachate from a coal refuse pile. The court first holds that although the trial court's jury instructions, with respect to pollutants preexisting in the waters of the United States where the flow is merely diverted, did not accurately state the law, the error was harmless because the defendant's water treatment system was not part of the waters of the United States, but was itself a point source. The water treatment system collected runoff and leachate subject to an NPDES permit, and thus, was not part of the "waters of the United States." The court also held that the trial court's decision to exclude evidence of the original owner's alleged policy of concealing existing environmental problems from prospective buyers was proper, because that evidence was irrelevant. The relevant mens rea issue was the defendant's knowledge from March 1987, when it began discharging pollutants into a creek without an NPDES permit.

Counsel for Plaintiff/Appellee
Sanford B. Bryant, Ass't U.S. Attorney
U.S. Attorney's Office
500 Quarrier St., Charleston WV 25301
(304) 345-2200

Counsel for Defendant/Appellant
Charles E. Hurt
Charles E. Hurt Law Offices
P.O. Box 833, Charleston WV 25323
(304) 344-3501

Before HALL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.