Developments under the Refuse Act: qui tam dealt a blow in Bass Anglers v. U.S. Steel

The likelihood that a federal district court will agree that individuals can bring a qui tam suit under the Refuse Act, 33 U.S.C. §§ 407 and 411, and collect half of an fine levied appears less likely after the February 8, 1971 consolidated decision in Bass Anglers Sportsman Society v. United States Steel Corp., consolidating Civ. Actions No. 70-733 (N.D.Ala.), 3124-N (M.D.Ala.) and 6290-70-T (S.D.Ala.) (N.D., M.D. & S.D. Ala. February 8, 1971).

Plaintiff Society originally brought its action in the Federal District Court for the Middle District of Alabama against 175 corporations located in Alabama which were allegedly discharging refuse in violation of the Refuse Act, 33 U.S.C. § 407, or in violation of Corps permits issued under that act. Moreover, plaintiff sought to have these 175 corporations declared representatives of a class of defendants, to include all persons within the state who were violating the act. Joined as non-class defendants were the Secretary of the Army, the Director of the Corps of Engineers and the State Water Improvement Commission and its chairman. Venue considerations caused a transfer of the claims against various defendants to the Northern and Southern Federal District Courts of Alabama and the defendants were reduced to 14 corporations and the governmental defendants. The class aspects of the suit were withdrawn.

In this case plaintiff's actions under the Refuse Act for injunctive and mandatory relief and for a portion of any fine levied against the corporate defendants were dismissed in a joint opinion of the three federal judicial districts of Alabama. The courts held that the Society could not maintain a qui tam action against the corporate defendants for a portion of the fine, because (1) the reward provision of 33 U.S.C. § 411 does not grant or imply a right of private enforcement; (2) criminal statutes cannot be enforced by civil actions; (3) in exercising their discretion whether or not to prosecute, U.S. Attorneys are immune from control or interference through mandamus or otherwise by private citizens or by courts; and (4) qui tam actions lie only to force the collection of civil penalties and forfeitures, not criminal fines. Likewise, the court reasoned, injunctive relief against the corporate defendants must be denied because an injunction barring violation would be no less an unauthorized enforcement of the act than the imposition of a criminal sanction. This reasoning was equally applicable to the injunctive relief — actually relief in the nature of mandamus — which plaintiffs sought against the governmental defendants. Moreover, the courts held that the delegation by the Refuse Act to the Secretary of the Army of authority to issue permits which legalize otherwise illicit dumping was a delegation of a discretionary, not a ministerial, duty. Consequently, an action in the nature of mandamus to compel the establishment of a coordinated Refuse Act permit program was held not to have been authorized by the federal mandamus statute, 28 U.S.C. § 1361.

In their opinion the courts note that in the only other case involving judicial consideration of the appropriateness of qui tam enforcement of the Refuse Act, Durning v. ITT Rayonier, Inc., 1 ELR 20040 (W.D.Wash. 1970) (see discussion at 1 ELR 10011), the complaint had been dismissed on the ground that the action did not lie.

The decision in Bass Anglers comes less than two months after Executive Order 11574 (1 ELR 45007) which established a federal permit program through which industrial facilities will be issued permits for waste discharges under the combined authority of the Federal Water Pollution Control Act, 33 U.S.C. § 1151 et seq., 1 ELR 41101 (especially § 21(b) of the 1970 Water Quality Improvement Act) and the Refuse Act, 33 U.S.C. §§ 407, 411, 413, 1 ELR 41141. The program takes effect on July 1, 1971. (For a detailed description of the permit program and an analysis of its impact, see 1 ELR 10009-12). The consolidated opinion in Bass Anglers does not mention the new federal permit program. Nevertheless, it is not unlikely that the federal district judges were influenced by the proposed program in their decision to deny relief requesting a judicial order which would require the federal government to establish a similar program.

[1 ELR 10030]

Further analysis of the Refuse Act permit program

Even if the court was not influenced by the recently announced program, the result in Bass Anglers weakens the prospects for citizen enforcement of the Refuse Act and emphasizes the necessity for close scrutiny of the provisions of the new program.

Critics have pointed out that the potential utility of the Refuse Act for curbing water pollution might be lost if an administrative enforcement procedure is established which removes Refuse Act enforcement authority from the Corps of Engineers but neglects to assign it in full to other agencies. The prospect of some diminution of Refuse Act potential has been revealed by the proposed regulations and guidelines of the agencies participating in the program.¹ These proposed regulations divide up among agencies the administrative enforcement functions envisioned by the plan. The Corps of Engineers's discretionary authority to issue or withhold permits for dumping under § 407 is shifted to EPA, the Corps retaining only the ministerial duties of permit administration.² However, in effecting this transfer of functions, the regulations do not likewise effect a complete transfer of the Corps's authority under § 407. Under the new program the Corps's authority to bar pollution of all navigable waters — including intrastate waters — will not be effectively utilized by EPA. Proposed 33 C.F.R. § 209.131 (d) (3) (V), 36 Fed.Reg. 20005 (Jan. 21, 1971). Instead, EPA will seek effective regulation only of industrial polluters of interstate waterways, by prescribing conditions in permits issued under the authority of § 407 of the Refuse Act only to the jurisdictional and substantive limits of the authority of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1151 et seq., and the newly added federal permit review provisions of that statute, 33 U.S.C. § 1171. The restriction of EPA and Corps enforcement of water quality standards to interstate waters results because the permit program makes state certification of compliance with standards of discharge into intrastate waters conclusive with regard to the grant of a federal permit.

Regarding the full utilization of § 407 authority by EPA, the drafters of proposed § 209.131(3) were probably mindful of the difficulties of horizontal delegations of authority in attempting to shift administrative responsibilities delegated by Congress to the Secretary of the Army to the Administrator of EPA without Congressional approval.³ One noted authority has commented that

… the question in all of these cases, whether delegation proceeds vertically within a single agency or horizontally to another agency, is essentially one of statutory interpretation, namely whether the Congress intended to allow the statutory powers of an official to be exercised by another not explicitly given the responsibility.⁴

Therefore, the self-imposed restraint in EPA's exercise of § 407 authority may have sought to insulate the program from attack on the ground of improper delegation of administrative duties. Nevertheless this understandable precaution does not justify restraining the Corps from exercising its full statutory abatement authority over intrastate waters until a valid delegation by statute or reorganization plan can be implemented.

Since Zabel v. Tabb, 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied 39 U.S.L.W. 3356 (Feb. 23, 1971), the Corps's Refuse Act permit authority has arguably been expanded beyond control of water pollution to include the broader authority for environmental protection afforded by the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq., andthe National Environmental Policy Act, 42 U.S.C. §§ 4221 and 4331 et seq. This argument rests upon establishing a convincing analogy between the Corps's dredge-and-fill permit authority involved in Zabel v. Tabb and the Refuse Act permit authority at question here. Except for the Corps's retained discretionary authority to deny permits pursuant to a narrow construction of the Fish and Wildlife Coordination Act, or if the proposed discharge would impair anchorage or navigation, the proposed permit [1 ELR 10031] program denies to the Corps any discretionary power to disagree with EPA decisions. Because EPA is restricted to the Federal Water Quality Act for its authority, it can not effectively fill this vacuum.

Moreover, critics of the program have suggested that even the limited utilization of § 407 powers envisioned by the program will be frustrated by the procedures established for their exercise. These criticisms are discussed at 1 ELR 10012.

The Justice Department's discretionary authority under § 411 of the act to institute criminal or civil injunctive proceedings to enforce § 407's absolute prohibition of all dumping in navigable waters⁵ (excluding municipal sewage) likewise will be restricted under the proposed program. The Department's Draft Guidelines For Litigation Under the Refuse Act Permit Program (Testimony of Shiro Kashiwa, Assistant U.S. Attorney General, Before the Senate Commerce Committee, Feb. 19, 1971) authorize U.S. Attorneys to initiate only those Refuse Act actions⁶ referred to them by the Corps's District Engineer or EPA's Regional Representative. All citizens' complaints of Refuse Act violations will be referred to those agencies for investigation. Since the plan does not effectively cover intrastate waters, (see discussion, supra) the Attorneys' authority to prosecute polluters of intrastate waters will be significantly limited. Consequently, § 407's prohibition of dumping in all navigable waters has been curtailed. Further, by limiting the U.S. Attorneys' enforcement discretion to cases referred to them by EPA and the Corps, the program restricts all federal enforcement of the Refuse Act to the stream standards — industrial effluent guidelines approach of the proposed program and therefore implicitly assumes some pollution of interstate waters is necessary and that the Refuse Act should only be enforced when that necessary level is exceeded.⁷

Court Opinions, the full texts of which are printed in this issue

Alameda Conservation Association v. California (9th Cir. 1971). See discussion above, 1 ELR 20097.

Allen v. Hickel (D.C. Cir. 1970)

District court dismissal of action to enjoin construction of creche (nativity scene) on federal parkland in the Ellipse (Washington, D.C.) as part of annual Christmas pageant vacated and case remanded for trial on issue of whether impression created by presence of creche violated the establishment clause of the First Amendment. Citizens have standing to sue to enjoin inconsistent uses of parkland held in trust by the government where activities permitted thereon threaten to destroy citizens' beneficial interests as park users. The court's opinion appears at 1 ELR 20087.

Bass Anglers Sportsman Society v. United States Steel Corp. (N.D., M.D. and S.D. Ala.1971) See discussion above, 1 ELR 20101.

Carolina Beach Fishing Pier v. Carolina Beach (Sup. Ct. N.C. 1970)

The trial court's non-suit after trial of an Atlantic Ocean littoral landowner's action for compensation for foreshore lands reclaimed by the municipality as an erosion-resistant sand berm is affirmed. Under the Submerged Lands Act of 1953, 43 U.S.C. § 1301 et seq., and North Carolina statutory and common law, the Atlantic foreshore in North Carolina is reserved for public use. Once the littoral landowner's title in the land has been divested by erosion which cause it to drop below the mean high tide line, reclamation of that land under a 1963 North Carolina statute authorizing the municipality to fill in shore lands for the prevention of future erosion did not operate to reconvey title to the littoral landowner. The court's opinion appears at 1 ELR 20081.

Citizens to Preserve Overton Park, Inc. v. Volpe (U.S. 1971)

The Secretary of Transportation's approval of federal expenditures for the construction of a segment of Interstate Highway I-40 through Overton Park is subject to judicial review under § 701 of the Administrative Procedure Act, because the federal highway statute which authorized the Secretary's decision does not limit or prohibit such review. Further, the narrow exemption for action committed to agency discretion is not applicable, i.e., there is "law to apply." The Department of Transportation Act, 49 U.S.C. § 1653(f)(Supp. V), and Federal Aid Highway Act, 23 U.S.C. § 138 (Supp. V), explicitly bar the use of federal funds for the construction of highways through parks. Only the most unusual situations are exempted. The Administrative Procedure Act in this case does not require de novo review. In addition, the Secretary's approval of the location and design need not meet the [1 ELR 10032] substantial evidence test. However, the reviewing court must conduct a "substantial inquiry" and determine whether the Secretary acted within the limited scope of his authority. If he did so, the reviewing court must further determine (1) whether that action was nevertheless arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and (2) whether the Secretary followed the necessary procedural requirements. The Secretary did not have to prepare findings of fact in this case, because the relevant statutes did not so require, and because the Secretary's action was not ambiguous.The Department of Transportation's regulation requring formal findings was issued after the Secretary had approved location and design. Further, an administrative record exists facilitating full and prompt review. Remand to the Secretary is unnecessary. The lower court's review was based on litigation affidavits, which did not comprise the entire record and thus were an inadequate basis for review. The case is remanded to the district court with instructions that because formal findings were lacking the court may require the administrative officials who participated in the decision to give testimony explaining their action. The decision appears at 20110.

Delaware v. Pennsylvania New York Central Transportation Co. (D.Del. 1971)

Standing to challenge Corps of Engineer's issuance of permits to Penn Central granted because plaintiffs allege that the permitted dike and fill operation along the foreshore of the Delaware River will cause them injury in fact by damaging the environment of the area, blocking a navigable tributary and obstructing public scenic easements. These interests are arguably within the zone of interests to be protected by the Rivers and Harbors Act of 1899, the Fish and Wildlife Coordination Act and the National Environmental Policy Act. The requirements of federal question jurisdiction are satisfied by plaintiffs' good faith allegation of infringement of a federally protected right causing them damages in excess of $10,000. The intermingled claims premised on state law share a common nucleus of operative facts with the federal claims sufficient to warrant a preliminary finding of pendent jurisdiction. Defendant Penn Central's petition in Bankruptcy has been approved, In the Matter of Penn Central Transportation Co., Debtor No. 70-347 (E.D.Pa.1970). The order of the bankruptcy court requires a stay of this action pending permission of the bankruptcy court to proceed or termination of that court's jurisdiction. The opinion appears at 1 ELR 20106.

Ely v. Velde (E.D. Va. 1971). See discussion at 1 ELR 20082.

Environmental Defense Fund v. Corps of Engineers of The United States Army (D.D.C. 1971)

Preliminary injunction granted barring defendant's further construction of the Cross-Florida Barge Canal pending a final ruling on plaintiffs' contention that the canal construction causes irreparable damage to timber and acquatic life and violates the National Environmental Policy Act, the Fish and Wildlife Coordination Act and the legislation authorizing the canal's construction. Defendants' motion to dismiss for lack of standing, failure to state a claim upon which relief can be granted and failure of subject-matter jurisdiction (arguing sovereign immunity) denied. The court's opinion and injunctive order appear at 1 ELR 20079.

Golden v. Board of Selectmen of Falmouth (Sup. Ct. Mass. 1970)

State law regulating the removal, filling and dredging of marshes, swamps, meadows, banks and flats bordering on coastal areas does not preempt local zoning by-law which also protects town's coastal area. State agency, pursuant to state law, had approved plaintiff's plan to dredge a tidal marsh on his property for a 24-foot wide channel and for a 2-boat dock. Town board of selectmen, pursuant to local zoning by-laws, subsequently denied plaintiff's request for permit. State law gives state final authority only in some instances; its enactment did not repeal all local laws on same subject. The court's opinion appears at 1 ELR 20095.

Groover v. A.B.E. Options, Inc. (Cir. Ct. Fla. 1970)

Petition for the establishment of a drainage district which would allow drainage of marshland for dairy farming denied, because the establishment of the district would impinge upon riparian rights of landowners within and below the district, including the Everglades National Park, and would be contrary to the Declaration of Rights of the Florida Const. art. 1, § 2 and to the U.S. Const. amend. V and XIV. The court's opinion appears at 1 ELR 20094.

Reserve Mining Co. v. Minnesota Pollution Control Agency (Dist. Ct. Minn. 1970)

Plaintiff taconite mining company granted a variance from the defendant's recently promulgated Minnesota Water Pollution Control Regulation WPC 15(c)(6), which forbids discharges of suspended solids in Minnesota waters of concentrations above 30 milligrams per liter (mg./1.). The variance allows the present discharge of 14,000 milligrams of tailings per liter of water into Lake Superior to continue. Application of the 30 mg./1. standard to plaintiff's discharge would be invalid as an unconstitutional taking of property without due process of law. Nevertheless, plaintiff is [1 ELR 10033] ordered to submit plans for defendant's approval indicating how plaintiff will modify its taconite discharges so as to abate pollution in accordance with the court's detailed order. The court's opinion and order appear at 1 ELR 20073.

San Antonio Conservation Society Members v. Texas Highway Dept. (U.S. 1970). See discussion above, 1 ELR 20069

Sierra Club v. Laird (D. Ariz. 1970)

Plaintiffs, seven conservation organizations, obtain preliminary injunction restaining the Army Corps of Engineers from carrying out a channel-clearing project on the Gila River. 3,000 acres of phreatophytic (water consuming) vegetation along 55 miles of the river were threatened. Clearing was begun without defendant's having complied with Executive Order 11514, 35 Fed. Reg. 4247, 1 ELR 45003 (March 5, 1970) or with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 and 4331 et seq., 1 ELR 41009. The court's opinion and the text of the preliminary injunction appear at 1 ELR 20085.

Texas v. Pankey, (10th Cir. 1971). See discussion above, 1 ELR 20089.

Thermal Ecology Must Be Preserved v. Atomic Energy Commission (D.C. Cir. 1970)

Temporary stay denied of hearings conduted by the Atomic Energy Commission to determine whether power generating reactor should be licensed. The Commission's refusal to allow petitioners to present evidence of thermal pollution in hearings is not a final order justifying judicial review. Agency's procedural or evidentiary rulings in the course of a proceeding do not constitute final orders. However, if Commission persists in excluding petitioners' evidence, it courts the possibility that the court will order rehearing when final judicial review ultimately is available. The court's opinion appears at 1 ELR 20078.

United States v. City of Anchorage (9th Cir. 1970). See discussion at 1 ELR 20093

United States v. Alaska (9th Cir. 1970). See discussion at 1 ELR 20091.

United States v. Foresyth (D. Colo, 1971)

Core drilling, road building and excavation on limestone mining claims in Pike National Forest preliminarily enjoined because irreparable injury would result to scenic characteristics of an area which the Forest Service seeks to protect in Bureau of Land Management administrative proceedings which contest the validity of the mining claims and request withdrawal of the public lands for recreational and scenic purposes. Forest Service required to demonstrate its chances for success on the merits. The public's interest in preventing needless defilement of forest lands warrants maintenance of status quo pending determination of the claims' validity. Adjudication of the validity and effect of the Forest Service's request that the lands be withdrawn is barred by sovereign immunity and by the parties' failure to exhaust administrative remedies. The court's opinion appears at 1 ELR 20103.

United States v. Maplewood Poultry Co. (D. Me. 1970)

The defendants' motion to dismiss two indictments charging them with dumping rendering plant wastes into Penobsco Bay in violation of the Refuse Act, 33 U.S.C. § 407, as selective, uneven and therefore unconstitutional enforcement of the law, contrary to the U.S. Const. 5th Amend., is denied. The fact that other offenders have not been prosecuted, without a showing of purposeful and arbitrary discrimination, does not support a claim of denial of due process or equal protection. The court's opinion appears at 1 ELR 20078.

United States v. Vulcan Materials Co. (D. N.J. 1970)

Motion to dismiss criminal information charging New Jersey Manufacturers with the discharge of acids, alkalies and oil into New York Harbor in violation of New York Harbor Act, 33 U.S.C. § 441, denied. The statute clearly prohibits the discharge of liquid inorganic as well as solid matter and has not been implicitly repealed by the Federal Water Pollution Control Act, 33 U.S.C. § 466 et seq. (1964). The court's opinion appears at 1 ELR 20086.

Administrative determination, the full text of which is printed in this issue.

In re Stearns Electric Paste Company (U.S.D.A. 1971)

In this proceeding under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 135 et seq., the Judicial Officer of the Department of Agriculture, as delegatee of the Administrator of the Environmental Protection Agency, held that two notices of cancellation issued to registrant Stearns Electric Paste for its phosphorus paste rodenticide were properly cancelled in administrative proceedings below. The highly toxic rodenticide was found unsafe for home use. The registrant has the burden of proof under FIFRA to show the safety of his product. See Environmental Defense Fund, Inc. v. Finch, 428 F.2d 1083, 1 ELR 20045 (D.C.Cir.1970). The inadequacy of reporting systems for morbidity and mortality resulting from pesticide poisonings does not preclude reasonable inferences of total harm caused. Further, the nature of the product and its application cannot be adequately labeled against the dangers of ingestion. The Judicial Officer's decision and order appear at 1 ELR 30011.

1. To date these proposed regulations and guidelines include: the Army Corps statement of proposed policy, practice and procedure for the issuance of permits under the Refuse Act Permit Program, Proposed 33 C.F.R. § 209.131, 35 Fed.Reg. 2005 (Dec. 31, 1970) (1 ELR Special Supplement, Jan. 1971); Proposed Memorandum of Understanding Between Army Corps of Engineers and Environmental Protection Agency (EPA), Proposed C.F.R. § 209.131(p), 36 Fed.Reg. 983 (Jan. 21, 1971); EPA's Proposed Regulations under § 216 of the Federal Water Pollution Control Act, 33 U.S.C. § 1171, Proposed 18 C.F.R. §§ 615.1 and .2, 615.11 - .16, 615.21 - .26, 36 Fed.Reg. 2516 (Feb. 5, 1971); Justice Department Draft Guidelines for Litigation Under the Refuse Act Permit Program, Testimony of Shiro Kashiwa, Assistant U.S. Attorney General, before the Senate Commerce Committee, Feb. 19, 1971.

2. The proposed Memorandum of Understanding Between the Administrator of EPA and the Secretary of the Army declares, "The Corps shall accept … advice on matters pertaining to water quality standards and related water quality considerations as conclusive and no permit shall be issued which is inconsistent with any finding determination or interpretation of a Regional representative with respect to such standards or consideration." Proposed 33 C.F.R. § 209.131(p), 36 Fed.Reg. 983 (Jan. 21, 1971). See also proposed Corps regulations 33 C.F.R. § 209.131(d)(6), 35 Fed.Reg. 20005 (Dec. 31, 1970).

3. See e.g., 1 Davis, Administrative Law §§ 9.01 - .07 (1958); Goldberg v. Battles, 196 F. Supp. 749 (E.D.Pa. 1961) aff'd per curiam, 299 F.2d 937 (3d. Cir. 1962) cert. denied, 371 U.S. 817 (1962) allowing the Secretary of Labor to delegate investigating functions under the Labor-Management Reporting and Disclosure Act of 1959 to the Department of Justice); Pepsi Cola Bottling Co. v. N.L.R.B., 409 F.2d 676 (2d Cir.), cert. denied, 396 U.S. 904 (1969) (holding a vertical delegation by the Board to a regional examiner is invalid.)

4. Testimony of William H. Rodgers, Jr. on the Refuse Act Permit Program, Before the Senate Subcommittee On Energy, Natural Resources and the Environment, Feb. 19, 1971, at No. 4.

5. Recently the Department (through U.S. Attorneys) has brought approximately 28 suits under the Refuse Act 33 U.S.C. § 407. The two most recent civil suits were filed Feb. 19, 1971 in Indiana (N.D.Ind.) seeking to enjoin U.S. Steel Corp. and E.I. duPont de Nemours and Co. from polluting the Grand Calcumet River and Lake Michigan.

6. Actions under the Refuse Act against vessels will continue to be handled in the manner set forth in preexisting Justice Department Guidelines for Refuse Act Enforcement, see 1 ELR 10011.

7. See Testimony of John M. Burns, III, Concerning the Proposed Permit To Pollute Program, Before the Senate Subcommittee On Energy, Natural Resources and the Environment, Feb. 18, 1971.