ELR Citation: ELR 20738
No(s). 72-1727 (5th Cir. Sep 9, 1974)

The Fifth Circuit Court of Appeals affirms, with modifications, a lower court injunction issued in a continuous discharge pollution action brought under the Refuse Act against the operator of a chemical plant. The injunction sets forth certain mandatory concentrations for discharges into the Houston ship channel and prohibits the dumping of wastes into the ocean. The district court correctly held that the savings provision of the Federal Water Pollution Control Act Amendments of 1972 preserves Refuse Act suits such as this one which were commenced prior to the enactment of the FWPCA Amendments, even though the defendant has aplied for a permit to discharge the wastes in question. The circuit court notes that although the defendant is experiencing treatment different from polluters against whom suit was not filed prior to enactment of the 1972 law, this difference does not rise to the level of a denial of equal protection. The lower court was also correct in ruling that the doctrine of primary jurisdiction does not apply in this case: plaintiff was not required to first seek relief from an expert administrative agency (EPA), since the question is what standard of discharge should be allowed pending final EPA action on the permit application. The injunction, however, must therefore be modified so as to terminate once a permit has been issued. In addition, the total prohibition on barging wastes to sea must be reversed and remanded, since the Refuse Act does not govern ocean waters beyond the three mile limit.

Counsel for Plaintiff
Robert L. Klarquist
Department of Justice
Washington, DC 20530

Counsel for Defendants
B.D. McKinney
Baker & Botts
3000 One Shell Plaza
Houston, TX 77002