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The Refuse Act of 1899: Key to Clean Water Ross Sandler New York Law School

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The Refuse Act of 1899: Key to Clean Water Ross Sandler New York Law School digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1972 The Refuse Act of 1899: Key to Clean Water Ross Sandler New York Law School Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters Part of the Environmental Law Commons Recommended Citation American Bar Association Journal, Vol. 58, Issue 5 (May 1972), pp. 468-471 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. The Refuse Act of 1899: Key to Clean Water by Ross Sandier The Refuse Act of 1899, although Enforcement means no more than approaching its diamond anniversary, F ORin thePERSONS environment genuinely and theinterested abate- ordering the polluter to conform to the is alive and well and providing the ment of water pollution, the last year desired standard and, on his failing to best legal framework for cleaning or two must surely look like the dawn- meet that standard, imposing sanc- up the nation's navigable streams ing of a new age. The distinction be- tions. Under the Refuse Act of 1899 and their tributaries. Its absolute tween today's relatively optimistic pic- the Federal Government has been standard of no pollution, which is ture and the past rests on the emerging doing precisely this. As many legisla- ameliorated through practical use its tures and the Congress contemplate application, is to be preferred over consensus that government must attempts to provide elaborate enforcement powers to bring a halt to pollution abatement legislation, it is statutory standards. pollution and to reclaim our natural worth taking stock of the accomplish- environment. By enforcement I mean ments of the current straightforward simply that government must use its mandate and its direct, enforcement power to order pollution halted, and if approach. it is not halted, to invoke sanctions Most of the criticism of and propos- swiftly. Direct enforcement against the als to alter the Refuse Act relate to ap- polhlter-that has been the real differ- parent deficiencies in the act. The pri- ence. mary so-called deficiencies are (1) that The work of enforcement being car- it makes no provision for civil abate- ried out by the Federal Government ment but only punishes the wrongdoer; through the Department of Justice, the (2) that it creates no administrative or Environmental Protection Agency and investigative machinery; (3) that its the Army Corps of Engineers is built maximum fine of $2,500 is not a deter- on an almost common law of water rent; (4) that it does not set standards pollution abatement. The primary fed- for an acceptable level of discharge but eral statute remains the Refuse Act of prohibits all discharges of industrial 1899 (33 U.S.C. 407), which simply wastes; and (5) that it makes no pro- states, in language that approaches a vision for state enforcement. Biblical commandment, that no one may discharge industrial refuse of any "Deficiencies" Are Not kind into the navigable waters of the Deficiencies At All United States or its tributaries. In fact, these "deficiencies" are not This act has emerged as the primary deficiencies at all; judicial interpreta- pollution abatement statute on the fed- tion and executive action not only have eral level for the simple reason that it removed or avoided them but have alone has proved enforceable. It is axi- honed the act into the most potent omatic that the certainty of being weapon against water pollution. caught and punished causes people to The first charge is that the Refuse the harshness of conform to law, not Act appears defective because it makes the penalty. And that is the secret of no provision for civil relief. It reads as the Refuse Act's unique success; it if it were only a criminal provision for brought certainty and credibility to punishment for past conduct but au- pollution law enforcement. thorizing no power to require a pollu- ter to abate his pollution. But recent AurTon's NOTE: The opinions expressed in judicial interpretations have entirely this article are personal and do not purport to reflect an official statement by the United filled that void. Relying on Supreme States Department of Justice. Court cases under companion sections of the Rivers and Harbor Act which 468 American Bar Association Journal Refuse Act of 1899 held that the government could sue to investigative arms and no enforcement enjoin future violations, the Depart- machinery. No administrative program ment of Justice brought the first two is included to process and evaluate per- law suits seeking civil relief under the mit applications. So goes the second Refuse Act in March, 1970-one in charge. Florida against Florida Power and These defects were corrected in large Light, and the second in the Southern measure by Executive Order 11,571 of District of New York against Oceana December 23, 1970, which established Terminals. In both cases the courts up- the Refuse Act permit program, and by held the Federal Government's right to the creation and reorganization of the sue to enjoin pollution. Since March of Environmental Protection Agency. 1 1970, the Department of Justice has But one of the strongest tools of en- brought ninety additional civil actions. forcement arises directly from the Re- The civil relief obtained has been fuse Act itself without special procla- designed to abate the particular pollu- mations or funding. The Refuse Act is tion at issue. In United States v. a criminal statute, and violation of it Oceana Terminals, 70 Civ. 1172 (S.D. may be investigated in the same man- N.Y. 1970), where the problem was oil ner as any criminal conduct-by a Ross Sandier was graduated from Dartmouth College (A.B. 1961) and leaching into the East River from an grand jury. In the Southern District of New York University School of Law oil saturated shore, the defendant was New York, United States Attorney (LL.B. 1965). He serves as an As- Whitney North Seymour, Jr., empa- required to maintain an adequate con- sistant United States Attorney and neled a special grand jury to investi- tainment boom and to clean the oil Chief of the Environmental Protection from the water continuously, while at gate water pollution in September, Unit in the Southern District of New the same time he was required to re- 1970. It has indicted fifteen companies York. pair the underground leaks from his and investigated many more. tanks. In United States v. Marathon Battery, 70 Civ. 4110 (S.D.N.Y. 1970), Grand Jury Wields by the Corps of Engineers will be a Significant Power the defendant was required to install complete defense to a Refuse Act pros- pretreatment equipment to remove the The grand jury can subpoena any- ecution. That is not to be feared. The toxic metal cadmium from its effluent. one it wishes to testify. This is a signif- Corps and the EPA have made it clear In United States v. General Motors, 70 icant power. Most potential defendants that they intend to issue permits only are corporations and do not enjoy a Civ. 5469 (S.D.N.Y. 1970), the de- on condition that the discharger receiv- fendant was required by the court Fifth Amendment privilege. In the ing the permit meet appropriate water order to cease discharging entirely past, and even today, much of the quality standards and not violate other many toxic chemicals and to obtain investigative work by the Corps of En- environmental values. In addition, the primary and secondary treatment of its gineers began and ended with a boat Corps and EPA have asserted the right remaining wastes. ride and a glass jar of some noxious Civil relief requires the defendant to smelling liquid. But the grand jury can circumvent that procedure of evidence invest substantial amounts of capital 1. In Kalor v. Resor, 335 F. Supp. 1 (D. for new equipment or for alteration of gathering entirely. It simply subpoenas D. C. 1971), the court enjoined the Corps the corporation's responsible officials of Engineers from issuing any Refuse Act its manufacturing processes. The permits until such time as the Corps amends money invested does not always repre- and asks them to explain under oath its regulations to require the filing of an just what chemicals and other refuse environmental impact statement, as required sent unrecapturable expenses, however. by the National Environmental Policy Act of In the Marathon case, the illegally dis- the plant discharges. 1969 with respect to each permit. The De- partment of Justice has stated that it intends charged waste was cadmium, the firm's This method of investigation has the to appeal the lower court ruling, and the primary raw material and an extremely added advantage for the prosecutor Corps, on December 28, 1971, ordered a moratorium on the issuance of permits, but expensive metal. It is now being cap- that the defendant cannot readily chal- stated that permit applications will continue tured from the effluent before dis- lenge the evidence against him. Most to be received and evaluated. On February 2, 1972, the Council on En- charge. In another case brought in the indictments are based on admissions vironmental Quality and the EPA jointly Southern District of New York, United by corporate officials to the grand jury recommended to the House of Representatives that the pending Federal Water Pollution States v. Washburn Wire Company, 70 or on tests made by the defendant at Control Act explicitly exempt Refuse Act Civ. 4624 (1971), the discharge into the request of the grand jury. By the permits from the N.E.P.A.
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