View metadata, citation and similar papers at core.ac.uk brought to you by CORE

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 , 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 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 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. requirements. Among other reasons the agencies noted that the East River proved so valuable that end of the investigation, there is little potentially 20,000 additional N.E.P.A. state- the defendent has barreled the effluent left for the defendant to dispute, and, ments would be needed if the Kalor decision were upheld and that the EPA, as an agency with the intent of selling it. as has been our experience, practically charged with protecting the environment, The Refuse Act appears defective in all defendants enter guilty pleas. should be exempt from N.E.P.A. require- ments geared for agencies charged with that it creates no laboratories, no Ultimately the issuance of a permit other functions and duties.

May, 1972 e Volume 58 469 Refuse Act of 1899 to attach conditions amounting to running as high as $25,000, $50,000 The current Department of Justice abatement orders to permits.2 The ap- or, as in the case of United States v. guidelines require the United States at- plications on which the permits will be Standard Brands, $125.000 (70 Cr. torneys to refer all cases to the Corps based specify precisely the nature of 858 (1970)). of Engineers and the EPA for their the discharge. Deviation from these opinion as to whether there is a factual specifications will open the discharger Size of Fine Is Left basis for a Refuse Act action. The De- to prosecution. In time, the role of the to Court's Discretion partment of Justice, which is without Department of Justice in investigating The size of the fine is entirely a mat- technical support staffs, relies directly and prosecuting polluters will no doubt ter of the court's discretion. The court on the facilities of the EPA laborato- diminish as the EPA and the Corps be- has the traditional power to suspend ries and scientists. Virtually no sub- come more effective. But the ultimate imposition or execution of the fine and stantial pollution case can be pressed criminal sanction will remain to give can place the defendant on probation. without highly sophisticated evidence force to the administrative regulation. It is clear, though, fron the size and and testing-a requirement that inevi- The third alleged deficiency is that severity of the fines imposed on de- tably forces the dovetailing of stand- the Refuse Act appears on first reading fendants in the Southern District of ards as between the prosecutor and the to create nothing more than a misde- New York and in other districts that environmental specialist. Literally hun- meanor and is a statute essentially judges are aware of the significance of dreds of criminal and civil cases have lacking in a credible punishment. The pollution prosecutions and will impose been prosecuted in the absence of a statute provides that if convicted, a de- a fine sufficient to achieve prevention catalogue of fixed standards, and not fendant can be fined a minimum of and deterence. in a single case has a defendant seri- $500 and a maximum of $2,500. In the The fourth charge is that the Refuse ously contended that the absence of a unusual case in which the defendant is Act appears defective because it has no standard misled him. It has not pre- a natural person, lie can receive a term standards of any kind written into it. It vented the court from fashioning relief. of imprisonment of not less than thirty merely states that it is unlawful to dis- days nor more than one year. Yet the charge refuse. Refuse Act Does statute has ample teeth, because defend- The absence of fixed standards of Have a Standard ants are routinely charged with multi- acceptable levels of discharge bothers The Refuse Act, of course, does have ple counts based on the actual work- many people, and in large measure the a standard-no discharge at all of in- ings of the defendant's plant. If a plant legislation now pending in Congress is dustrial refuse. The flat prohibition ap- has one shift a day and the polluting an attempt to create standards. The pears harsh and unprecedented, but it discharge virtually stops with the end- most prominent bill is S.2770, the so- is neither. As in other areas where per- ing of that shift, each day becomes a called Muskie Bill, which passed the nicious conduct or laws affect matters separate count in the indictment or in- Senate by an 86 to 0 vote on Novem- of central importance, the courts have formation. ber 2, 1971. It proposes that the ad- tended to reach parallel results. In the Recently in the Southern District of ministrator of [he EPA establish a cat- reapportionment cases, for instance, New York a defendant felt the full im- alogue of standards for most effluents the flat rule of one man, one vote pact of this aspect of the Refuse Act as well as a catalogue of available tech- emerged as the standard. (71 Cr. 1020 (1970) ). Anaconda Wire nology for certain types of pollutants. More important, the actual practice & Cable Company, a subsidiary of Ana- It also establishes a goal of elimination of prosecutors, judges and administra- conda, routinely discharged large of all pollution discharges by 1985. tors generally has been to adopt the amounts of copper from its plant in The Muskie Bill does not call for the only standard thai as a practical mat- Hasting-on-Hudson. The metal, which repeal of the Refuse Act, which would ter can work-the maximum feasible is highly toxic to virtually all life, was presumably remain as a parallel en- abatement under the present technol- discharged from the plant as traces in forcement statute. ogy. That is the standard for the relief its process water. The grand jury Russell E. Train and William D. sought in civil actions brought in the charged Anaconda with one hundred Ruckelshaus, the respective heads of Southern District of New York, and separate violations of the Refuse Act the Council of Environmental Quality that is the standard for abatement -an alleged violation on practically and the EPA, have noted this duality sought by the EPA in evaluating per- every working day in the first half of and explicitly recommended that the mit applications. 1971. Anaconda pleaded guilty to the Refuse Act ultimately be repealed ex- This standard is the only sensible indictment, and was fined $2,000 per cept as it applies to anchorage and one from an enforcement point of count for a total fine of $200,000-a navigation.I" The principal reason for view. The Department of Justice has record fine in a pollution case. There is this position is that the two statutes no power to order anyone to do any- no doubt that a fine of such severity potentially subject the discharger to 2.33 C.F.R. 209.131; 36 Fed. Reg. 6564 has the desired impact of deterence. two distinct standards. It would ap- (April 7, 1971). Other fines imposed in the Southern pear, however, 3. Letter of Russell E. Train and William that this potential has D. Ruckelshaus, February 2, 1972, 2 Env. District have been relatively as severe, remained entirely theoretical. Rptr. 1247.

470 American Bar Association Journal Refuse Act of 1899 thing. It can only take a defendant to ment. Its clear commandment places probably no other area has competi- court for the purpose of convincing a the burden directly on the discharger tion fostered by concurrent jurisdic- court either to impose a fine or to either to cease discharging or to take tion had a more beneficial effect. The order the defendant to cease discharg- every precaution currently available to Refuse Act is necessary and has been ing and clean up the effects of past dis- eliminate contaminants from his ef- successful on this basis alone-actions charges. In either situation, the prose- fluent. Equally important, it mandates under it proved enforcement possible cutor must convince the court that the that the enforcement officials take ac- and desirable and made others uncom- defendant has done or is doing some- tion. Neither can hide behind disputes fortable if they were not being equally thing that should be halted. That bur- about relative toxicity, and neither as tough. den, as a practical matter, is insur- can buy time awaiting the ultimate mountable if the defendant can estab- standard and the ultimate black box to Refuse Act Is a Superior lish that it has taken every precaution eliminate the noxious portion of a dis- Enforcement Tool and in fact has abated its pollution to charge. It is unlikely that "zero" dis- The Refuse Act has developed into a the maximum currently feasible. charge can ever be achieved; it is superior enforcement tool for the bet- There could be situations in which equally unlikely that setting a lesser terment of our environment. An exami- every conceivable precaution had not standard will produce more or better nation of the record of enforcement abated the discharge entirely. In my abatement. bears this out. Criminal indictments experience prosecution of this kind of The fifth allegation is that the Ref- are being voted increasingly by grand case is completely hypothetical. Re- use Act appears defective in that it juries around the country. In the two sources do not permit prosecution of does not settle which government au- years ending July 1, 1969, eighty-seven these minimal polluters. There are far thority-the states or the Federal Gov- criminal cases were brought under the more polluters readily available who ernment-has priority of enforcement. act, but in the next two years almost yet practice nineteenth cenlury indus- Whereas most recent federal legislation four times as many criminal actions trial mores. Reliance on the prosecutor implicitly or explicitly defers to the were brought-a total of 320. Once to be sensible is part of the system of states, the Refuse Act is silent. The Ref- convicted, defendants can expect a sub- criminal justice and is not in the least use Act follows the traditional crimi- stantial fine. As Judge Thomas F. unusual. In the last analysis, the abuse nal law theory that certain conduct, Croake stated when he imposed the of discretion can only bring a defend- even if punishable under state law, $200,000 fine on Anaconda, no longer ant to court. There the prosecutor, in might also be punished as a federal can pollution fines be viewed as merely an open public proceeding, must bear crime if constitutionally permitted con- a cost of doing business. These actions his burden of demonstrating to the tacts exist, as, for instance, receiving bring credibility to the commitment to court that a fine or an injunction stolen goods (state crime) and receiv- clean up. Without the certainty of should be ordered. ing stolen goods that have moved in in- being caught and punished, there is lit- Moreover, the primary rationale for terstate commerce (federal crime). tle left to that commitment, no matter a standard is not present in the pollu- how grand the administrative machin- tion area. Companies desire standards Absence of Pecking ery or how stringent the standards. in order to predict what will be an ac- Order Is No Defect If I were to grade the importance of ceptable level of abatement. But stand- The absence of a pecking order is no the Refuse Act and enforcement under ards are changing constantly. What defect at all. Surely no one would con- it, I would list these things as the most today seems to he an acceptable level tend that there has been too much en- important, above even the significant most likely will not be considered so in forcement in the pollution area. The successes of individual cases: the future. For a company to install experience is quite the contrary. More -It has and is creating a climate in pollution abatement equipment meet- important, concurrent jurisdiction has which industry-the potential defend- ing an outmoded standard is fool- decided advantages. A United States ants-now feels a growing certainty hardy. If it does not install the most attorney vigorously enforcing the Ref- that it can no longer pollute with im- advanced equipment available, regard- use Act cannot help but cause the punity. less of the current written standard, it competitive (or self-protective) fires to -It has and is creating a climate in is wasting money. ignite in local and state enforcement which local and state agencies can be- The standard now found in the Ref- agencies. The same competition works come more stern in their enforcement use Act makes sense most of all be- between the EPA and the United States policies. cause it is enforceable. It is a standard attorney offices, as well as between Much remains to be done. But there readily comprehensible to everyone, in- United States attorneys in neighboring could not be a more explicit mandate dustrialist and citizen alike. At a time districts. While it may not be obvious than is now found in the Refuse Act, when pollution of practically all major to even the most well-informed people, nor could that be a more workable waterways is plainly visible, the Refuse this has been one of the most impor- scheme of enforcement than is now Act offers hope for meaningful abate- tant products of the Refuse Act. In evolving under the present statute.

May, 1972 a Volume 58 471