Kaufman, Chief Judge, Smith, Circuit Judge, and Bryan, District Judge.*fn*
We are called upon to decide a narrow, but important, issue of statutory construction under section 13 of the Rivers and Harbors Appropriations Act of 1899 (Refuse Act of 1899), 33 U.S.C. § 407 (1970).*fn1 The question presented is whether the Government sustained its burden of proving a violation of that provision when it established a likelihood that refuse discharged into a tributary reached navigable water or whether it was required to prove that the discharge actually had reached navigable water. In the district court, Judge Gurfein adopted the first view and, in a trial without a jury, found the American Cyanamid Company guilty of violating the Act. We concur in that reading of section 13 and, accordingly, affirm the conviction.
A brief overview of the Refuse Act of 1899 will help place the issue on appeal in the proper context. The 1899 Act, which has recently attained prominence in the ongoing battle to save our natural resources, see Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U.Pa.L.Rev. 761, 761-69 (1971), represented an early effort by Congress to protect our waterways from the discharge of pollutants resulting from the onward march of an industrialized society. In essence, section 13 prohibits the discharge of refuse, other than liquid sewage, into the navigable waters of the United States and forbids the depositing of all material on the banks of navigable waters into which such matter is "liable to be washed." 33 U.S.C. § 407. The Supreme Court, in tracing the sparse legislative history of this provision, has noted that "section 13 codified pre-existing statutes . . ." United States v. Standard Oil Co., 384 U.S. 224, 226, 86 S. Ct. 1427, 1428, 16 L. Ed. 2d 492 (1966). From a study of the antecedent statutes*fn2 and the legislative history of the 1899 Act, the Court concluded that "the 'serious injury' to our watercourses . . . sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution . . . ." Id. at 228-229, 86 S. Ct. at 1429. The thrust of the Standard Oil opinion is that courts must be mindful of their responsibility to give full effect to an overriding societal interest in the preservation of a clean, healthy environment when called upon to interpret the Act and that the history and legislative background forbid a narrow, cramped reading of the section. Id. at 226, 86 S. Ct. 1427, citing United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S. Ct. 884, 4 L. Ed. 2d 903 (1960).
The facts before us are quite straightforward. American Cyanamid operates its Standard Coated Products plant in Buchanan, New York, on the bank of Dickey Brook, one mile from where the brook flows into the Hudson River. The brook is a tributary of the Hudson, part of the navigable waters of the United States. One-half mile from the plant, Dickey Brook widens into an inlet-cove characterized by tidal marshes and mud flats. A road, Broadway, has been built across the cove. The stretch of water between Broadway and the river is known to local residents as Lents Cove.
On Saturday, August 12, 1972, a Cyanamid employee, in the course of his regular duties, neglected to close a water valve in the plant. As a result, a storage tank in the basement of the plant overflowed, releasing a mixture of titanium dioxide and calcium carbonate*fn3 through a storm drain into Dickey Brook. The accident was discovered on Monday morning, August 14, by passersby who noticed that the flowing brook had turned a milky white. Upon learning of the accident, Cyanamid shut off the open spigot and plugged the drain, which, however, Cyanamid later flushed into the brook. Approximately four cubic feet of chemical solids were discharged into Dickey Brook.
The district court concluded that on this evidence, Cyanamid had violated section 13 of the Refuse Act which provides in the portion relevant to our consideration that:
It shall not be lawful to . . . discharge . . . from . . . manufacturing establishment . . . of any kind, any refuse . . . into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water. . . (emphasis added).
Although there was evidence at trial that polluting chemicals entered the inletcove flowing at least as far as Broadway and that, in addition, water flowed freely through large culverts under Broadway, the district judge decided that "the Government has failed to establish beyond a reasonable doubt that the particular refuse discharged on August 12-14, 1972 actually was washed into navigable water." (emphasis added). He, nevertheless, found as a fact that "the discharge of refuse was extensive enough so it would be likely to be washed into the navigable water," and that proof of such conduct was sufficient to make out a violation of the statute.
The sole question on appeal is whether the district judge erred in his construction of the Act. Cyanamid argues that inclusion in the statute of the phrase "shall float or be washed" compels this Court to require proof that the refuse discharged into a tributary actually reached navigable water before a violation of section 13 can be established. We find the argument unpersuasive both as a matter of linguistics and common sense.
Although the legislative history of the 1899 Act, meager as it is, hardly illuminates the Congressional intent embodied in the phrase "shall float or be washed," this Court is not without guidance in interpreting the Refuse Act. The Supreme Court has stated that section 13 is to be read "charitably." United States v. Standard Oil Co., supra, 384 U.S. at 230, 86 S. Ct. 1427. Standard Oil was concerned with the accidental dumping of aviation gasoline into the St. Johns River and the language of the majority opinion is significant. The Court admonished that a broad reading of section 13 was appropriate and "in keeping with the teaching of Mr. Justice Holmes that a 'river is more than an amenity, it is a treasure' . . . ." Id. at 230, 86 S. Ct. at 1430. See also United States v. Republic Steel Corp., 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903 (1960). This clear mandate of the Supreme Court, which, at least here, qualifies the maxim that criminal statutes are to be narrowly construed, justifies, if indeed it does not compel, a liberal reading of the statute.
As indicated above, section 13 prohibits the discharge of refuse into "any tributary of any navigable water from which the same shall float or be washed into such navigable water . . . ." The phrase "shall float or be washed" allows for possibility or likelihood. The language "shall float" clearly anticipates a future occurrence. If Congress had intended to require a showing that refuse actually had floated into navigable water before ...