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THE REFUSE ACT PERMIT PROGRAM by RICHARD G

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THE REFUSE ACT PERMIT PROGRAM by RICHARD G January 1972 FEDERAL CONTROL OF WATER POLLUTION: THE REFUSE ACT PERMIT PROGRAM By RICHARD G. HILDRETH* San Francisco, California Pending enactment by Congress of a more comprehensive water pollution program, the Nixon Administration has instituted a permit program under Section 13 of the Rivers and Harbors Act of 1899, commonly known as the Refuse Act.1 That act prohibits the discharge or deposit of: "any refuse matter ... other than that flowing from streets and sewers and passing therefrom in a liquid state, 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 ... and the deposit of: "material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water .... whereby navigation shall or may be impeded or ob- structed. ..." The prohibition of discharges of refuse matter is much broader than the prohibition of deposits on banks in that there is no requirement that navigation be impeded or obstructed,2 and the exclusion of liquid sewage from the act's prohibition does not extend to industrial wastes.3 By its terms the act does not apply to "operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers super- vising such improvement or public work." As to permits for discharges and deposits, the Refuse Act provides: 't... [T]he Secretary of the Army, whenever in the judgment of * Member of the California Bar. 1. 33 U.S.C.A. § 407 (1970); see, Annot., 16 L. Ed. 2d 1256; Note, 22 HAs- TINGS L.J. 782 (1971); Comment, 1 ECOLOGY L.Q. 176 (1971). In 1888 the Su- preme Court had held that there was no federal common law prohibition of ob- structions in navigable waters of the United States. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888). 2. United States v. Ballard Oil Co., 195 F.2d 369, 370 (2d Cir. 1952); La Merced, 84 F.2d 444, 446 (9th Cir. 1936); Myrtle Point Transportation Co. v. Port of Coquille River, 86 Ore. 311, 168 P. 625 (1917); see, United States v. Esso Standard Oil Co., 375 F.2d 621, 623 (3d Cir. 1967). 3. United States v. Republic Steel Corp., 362 U.S. 482 rehearing denied, 363 U.S. 858 (1960), upon remand, 286 F.2d 875 (7th Cir. 1961); United States v. Pennsylvania Industrial Chemical Corp., 2 BNA ENVIRONMENT REP. CAS. 1804 (W.D. Pa. 1971). HeinOnline -- 27 Bus. Law 567 1971-1972 The Business Lawyer the Chief of Engineers anchorage and navigation will not be in- jured thereby, may permit the deposit of any material above men- tioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such materials; and whenever any per- mit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful." Thus, discharges without a permit have been unlawful since 1899, and the institution of a permit program in 1971 does not confer im- munity from prosecution on past discharges or immunity from prose- 4 cution and the permit requirements on present discharges. Also, there are two statutory conditions to the issuance of a permit: (1) applica- tion for a permit must have been made prior to making the deposit authorized by the permit; and (2) in the judgment of the Chief of Engineers, anchorage and navigation will not be injured by the de- posit. Because a permit cannot approve deposits made prior to the is application for the permit, prosecution for such previous deposits 5 not prevented by the issuance of a permit approving similar deposits. Finally, in issuing a permit, the Secretary of the Army is authorized to impose conditions and limitations on the deposits, and any violation of 6 the permit conditions is also a violation of the Refuse Act. Until President Nixon issued Executive Order 11574 on December 23, 1970, the Corps of Engineers had taken no steps to implement the permit program authorized for discharges of refuse matter by the Refuse Act. Not only were permits not required, but it was the policy of the Corps not to take any action where a violation of the Refuse Act was "minor and unintentional or accidental" and not to recommend prosecution when the violation was "trivial, apparently unpremeditated, and re- sults in no material public injury."' 4. Id. at 1806. 5. See, Corps of Engineers Reg. § 209.131(d)(4), 36 Fed. Reg. 6565 (1971). 6. Unlawful discharges and deposits are a misdemeanor, punishable by a fine of $500 to $2500, and, if the violator is a natural person, imprisonment. 33 U.S.C.A. § 411 (1970). One-half of the fine is to be paid to the persons who provide information leading to conviction. Id.; see, Shipman v. United States, 309 F. Supp. 441 (E.D. Va. 1970); United States v. St. Regis Paper Co., 2 BNA ENVIRONMENT REP. CAS. 1619 (W.D. Wis. 1971); United States v. Transit-Mix, 2 BNA ENVIRONMENT REP. CAS. 1074 (S.D. N.Y. 1970). However, the fed- eral district courts have uniformly held that no private right of action may be based on the Refuse Act. Qui tam and injunction unsuccessfully sought: Lavigno v. Port-Mix Concrete, Inc., 2 BNA ENVIRONMENT REP. CAs. 1895 (D. Colo. 1971); Bass Anglers v. Scholze Tannery, 2 BNA ENVIRONMENT REP. CAS. 1771 (E.D. Tenn. 1971); Connecticut Action Now, Inc. v. Roberts Plating Company, Inc., 2 BNA ENVIRONMENT REP. CAs. 1731 (D. Conn. 1971); qui tam: Mattson v. Northwest Paper Co., 2 BNA ENVIRONMENT REP. CAS. 1566 (D. Minn. 1971); Gerbing v. I.T.T. Rayonier, Inc., 2 BNA ENVIRONMENT REP. CAS. 1801 (M.D. Fla. 1971); damages: Guthrie v. Alabama By-Products Co., 40 U.S.L.W. 2001 (N.D. Ala. June 21, 1971). The Justice Department has issued guidelines for citizen investigations of violations of the Refuse Act. 2 BNA ENVIRONMENT REP. 370, 390 (1971). 7. 33 C.F.R. § 209.170(g) (4) (1970); see, United States v: Interlake Steel Corp., 297 F. Supp. 912, 915 (N.D. 111. 1969). Only four permits had been HeinOnline -- 27 Bus. Law 568 1971-1972 January 1972 EXECUTIVE ORDER 11574 On December 23, 1970 President Nixon signed Executive Order 11574 ordering the executive branch to implement a permit program under the Refuse Act to regulate the discharge of pollutants and other 8 refuse matter into navigable waters and their tributaries. Significantly, the order divides responsibility between the Secretary of the Army and the Administrator of the recently created Environmental Protection Agency (EPA)." The order directs the Secretary of the Army to set up procedures for processing applications for permits and gives him the responsibility of granting or denying permits. However, in making his decisions he is directed to accept the determinations and interpre- tations of the Administrator of EPA with respect to applicable water quality standards and compliance with those standards in particular circumstances. The Secretary of the Army does have the responsibility for considering factors other than water quality and for consulting with other federal agencies respecting environmental values as required by the National Environmental Policy Act of 1969.10 In particular, where the discharge for which a permit is sought physically modifies the body of water or its channel, Executive Order 11574 directs the Secretary of the Army to consult with the Secretaries of the Interior and Commerce, the Administrator of EPA and the state head of wild- life resources of any affected state, regarding effects on fish and wild- life. The relationship between the Department of the Army and EPA has been defined further in memoranda of understanding between the 11 Secretary of the Army and the Administrator of EPA. CORPS OF ENGINEERS REGULATIONS As directed by Executive Order 11574, the Corps of Engineers pub- lished proposed regulations governing the issuance of permits under issued in the past seventy years. In regard to prior Corps deference to local pol- lution standards, see 33 C.F.R. §§ 209.330, .395, .400 (1967). See also, 33 C.F.R. § 209.120(d)(1) (1970) (§ 10 permit program). 8. 35 Fed. Reg. 19627 (1970). A suit challenging the validity of this pro- gram under the Refuse Act itself, the National Environmental Policy Act of 1969 and the Fifth and Ninth Amendments to the Constitution has been brought in the District of Columbia federal district court. See, 2 BNA ENVIRONMENT REP. 303 (1971). 9. EPA replaced the Federal Water Quality Administration, 33 U.S.C.A. § 1152 (1970), under Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (1970), Annot., 42 U.S.C.A. § 4321 (Supp. 1971). The Administrator is Wil- liam D. Ruckelshaus. 10. 42 U.S.C.A. § 4332 (March Supp. 1970). 11. 36 Fed. Reg. 3074-75 (1971), 1 BNA ENVIRONMENT REP. 1155-57 (1971) (executed as to cooperation in enforcement and investigations); 36 Fed. in regard to permit program). The terms of the Reg. 983-84 (1971) (proposed 36 Fed. proposed memorandum are expressly incorporated in the executed one. other things, the Army and EPA agree to give each other Reg. at 3074. Among in regard to thirty days' notice of any regulations or guidelines to be issued Refuse Act permits. 36 Fed. Reg. at 984. HeinOnline -- 27 Bus.
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