EPA and the Refuse Act Permit Program

In its Second Annual Report, the Council on Environmental Quality offered the following assessment of the Refuse Act Permit Program:

The Refuse Act is an important mechanism for enforcing water quality standards because it permits swifter action against polluters than is possible under the enforcement provisions of the Federal Water Pollution Control Act (FWPCA) itself. Because it prohibits discharges into navigable waters in the absence of a permit and gives the Secretary of the Army broad discretion in establishing permit conditions, the Refuse Act could remedy some deficiencies in the nature and scope of standards adopted pursuant to the FWPCA. For example, standards for nonmunicipal discharges could be extended to all navigable waters and could be stated in terms of precise effluent limitations tailored to meet ambient water quality requirements.

However, because the FWPCA is the most recent and explicit congressional expression with respect to water quality, the Administration has asked the Congress to make major improvements in the Federal Water Quality program through that act. In the meantime, the permit and enforcement program under the Refuse Act is being used to enforce existing water quality standards. Environmental Quality: The Second Annual Report of the Council on Environmental Quality, Government Printing Office, August 1971.

In the two above paragraphs CEQ gets to the nub of the central difficulty underlying the Administration's Refuse Act Permit program. At its heart, the program is an attempt to dovetail the quick and simple if underutilized federal enforcement approach represented by the Refuse Act section of the Rivers and Harbors Act of 1899 with what CEQ itself describes as the "limited and cumbersome enforcement mechanisms for pollution abatement by the Federal Government," represented by the present FWPCA. See, "Environmental Quality," The Second Annual Report of the Council on Environmental Quality, supra, pp. 10-13. See also, Executive Order No. 11514, Administration of the Refuse Act Program, December 23, 1970, 1 ELR 45007. Earlier critiques of the proposed Permit Proigram appeared at 1 ELR 10009-12 and 1 ELR 10030-31.

At least some initial deference on the part of the Environmental Protection Agency (EPA) — the agency to which all but the manisterial duties and Justice Department prosecution responsibilities under the Permit Program have been assigned — to state and federal-state water quality standards is, of course warranted in view of Congressional policy expressed in FWPCA "to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution." 33 U.S.C. § 115(b), 1 ELR 41101. Certain states have belatedly adopted strict antipollution policies commensurate with this primary responsibility. New York, which has reduced mercury discharges into its waterways by 97 percent during the last two years, enacted stringent [1 ELR 10134] legislation regulating the content of phosphates in laundry detergents and undertook a $2.2 billion municipal sewage treatment plant program, and California, which passed a strong Water Quality Control Act which took effect January 1, 1970 and has enforced its criminal provisions against more than 100 polluters to date — fines under California's Act can run to as much as $6,000 per day — stand as two of the more notable examples. Yet enforcement of state water pollution standards remains dreadfully uneven, and statistics on the subject are so fragmentary that CEQ, in its recent report, was unable even to compare current state performance with that of the recent past. Moreover, as a response to an urgent national priority, FWPCA has been roundly criticized by the President of the United States, by CEQ, by EPA officials, by attorneys at the Department of Justice who must work within it, and by numerous commentators. The weaknesses of FWPCA are so basic as to require no more than summary restatement here. They include: a preoccupation with water quality standards in terms of desired water use, standards which vary greatly both within and between the various states, which provide no incentives for polluters to improve their effluent discharge performances once a minimal water quality standard has been achieved, and which make enforcement extremely difficult since many different establishments may contribute to unacceptable water quality ratings at a given location; the absence of any mandatory procedure for the accumulation of statistics regarding effluence discharge; federal intervention as a matter of right only when pollution in one state affects the health and welfare of citizens in another; and, alternative enforcement provisions which can run into years before compulsory abatement can be achieved. So inadequate is the current FWPCA approach that one commentator has referred to it as "a Rube Goldberg Administrative nightmare,"¹ and both President Nixon and Senator Edmund Muskie have submitted bills designed to insure a more prompt and workable federal participation in its standard-setting and enforcement procedures. A third such bill is expected during the current session of Congress from Rep. John Blatnik, D.-Minn. For a comprehensive discussion of the history of FWPCA and its myriad inadequacies, see, Frank J. Barry, "The Evolution of the Enforcement Provisions of the Federal Water Pollution Control Act: A Study of the Difficulty in Developing Effective Legislation," 68 Mich. L. Rev. 1103.

EPA was thus given the reins last December of a Permit Program with an infinitely greater potential for achieving salutory results than anything possible under FWPACA alone, and for achieving them in rather prompt fashion. The simple "yes" or "no" question under Refuse Act prosecutions provided EPA with the needed to force compliance with effluent limitation standards it proposed to establish and enforce in cooperation with the Corps of Engineers, the Department of Justice, and the various state regulatory agencies. The essential elements for effective administration of the program included:1) the promulgation of effluent discharge limitations by EPA with respect to some 22 bellwether industries; 2) the publication of a list of toxic and hazardous substances which industries were forbidden to discharge into the nation's waterways; 3) an indication that both the initial permit applications, due July 1, 1971, and the more comprehensive applications, due October 1, 1971, would be thoroughly reviewed by EPA with applicants subjected to effluence limitation standards, prior to the issuance of discharge permits and that the permits, when finally granted, would be tied to vigorous guidelines for the abatement of any pollution in excess of the applicable effluent standards; 4) the availability of such applications for inspection by interested members of the public except perhaps, for certain restricted trade secrets; and, 5) the continued vigorous enforcement of both civil and criminal remedies available to the federal government under the Rivers and Harbors Act against the worst sources of industrial water pollution.

A survey of the current situation indicates that problems, delays and ambiguities have arisen in each of these five critical areas. Among the pertinent documents available, the one that most completely describes EPA's anticipated role in the permit program is entitled, "EPA, General Policies Regarding Permit Processing," dated July 21, 1971 and circulated by EPA to guide its regional offices in implementing the program. See 1 ELR 45009. Section X1-E of the policy statement refers to the establishment of effluent limitations as follows:

EPA will establish specific quantitative effluent limitations whenever it is possible to do so with reasonable assurance that such requirements reflect proper analysis of the levels of reduction required to achieve applicable water quality criteria. It is recognized that it will not be possible to establish such quantitative limitations for more than a selected minority of applications involving the most serious industrial pollution.

EPA chairman William Ruckelshaus and General Counsel John Quarles, at an August 27 meeting with representatives of environmental groups, indicated that the specific quantitative effluent limitations referred to in the above section will be formulated only with respect to the "major polluters," some 5-10 percent of anticipated industrial applicants. Estimates vary as to the percentage of total pollution accounted for by these major polluters. At the same August meeting, estimates ranged from a low of 50 percent to a high of 90 percent. The three primary reasons [1 ELR 10135] suggested by EPA for its failure to provide clear industry-by-industry effluent standards or to monitor more closely each application are 1) dissatisfaction with the results of some 22 effluent studies prepared for EPA by contractual parties early this year, (as with any agency determination, the results of the 22 EPA effluent studies could be challenged by industry for vagueness, inaccuracy or other abuse of discretion), 2) financial and manpower limitations within the agency, and 3) doubts concerning the extent to which EPA can lawfully perform functions legislatively assigned to the Corps of Engineers under the Rivers and Harbors Act. EPA has also failed to publish the anticipated list of toxic and hazardous substances and at the meeting referred to above between EPA officials and representatives of conservation organizations, the agency officials were ambiguous as to whether such a list would be available before applications are processed.

Some amplification of EPA's problems and its intended approach was obtained by ELR from an interview in early September with John Quarles, EPA's General Counsel. Mr. Quarles said that due at least partially to "loose statements from certain quarters" many environmentalists had taken an overly optimistic stance on the efficacy of 22 effluent yardsticks in terms of regulating industrial discharges based upon less than six months of study. Such industry-wide standards were "not compatible with the regulatory framework now existing which is geared under FWPCA toward achieving certain uses in waterways." Moreover, such a "simple formula," i.e. effluent limitations, could not take into account different types of plants within the same industry and different rivers with different capacities for restoring and rejuvenating themselves after discharges. These factors, in addition to the insufficiencies of the various studies militate against over-reliance on effluent standards at the present time. Still, EPA's decision to rely heavily upon state water quality criteria in processing the initial applications while setting specific effluent standards only for the 2,500 or so largest polluters out of about 40,000 anticipated applications, could produce important results and is clearly preferable to reliance upon the piecemeal approach of criminal prosecutions or civil injunctions obtained under the Rivers and Harbors Act. Most of the state water use and quality criteria are "pretty reasonable," the chief regulatory challenge being to see that the criteria are rigorously implemented and enforced. Nonetheless EPA remains "strongly committed to effluent standards" and anticipates they will be a part of new legislation soon to be enacted by Congress. In devising new and reasonable effluent limitations the next several months of the permit program may spell a "real breakthrough." Some 400 people have been added to the EPA staff specifically to enforce the program. Great quantities of previously unobtainable data will be accumulated because of industry filing requirements and while much of the initial data is likely to be inexact, "as we and the states get more people with more experience we will be able to devise more sophisticated effluent standards." In one year's time, "we're going to have a very good picture of what has to be done." With respect to the list of toxic and hazardous substances, Mr. Quarles said he anticipated the list would be ready before the initial applications are processed. However, cautioned, it would "contain no surprises," just those substances "like mercury and chromium which everyone knows to be dangerous by now." With respect to public access to industrial data accompanying each application, Mr. Quarles indicated that EPA would make its own decisions as to what properly falls within the "trade secrets" category and would not be bound by each applicant's own determination.

While acknowledging the existence of many of the regulatory problems referred to by EPA officials, environmental groups express concern about any approach which would result in the issuance of permits on the basis of incomplete information, particularly if such an approach was accompanied by a policy of nonprosecution of Refuse Act violations during the pendency of permit applications. In its critique of the Permit Program dated August 20, 1971, the Natural Resources Defense Council (NRDC) stated:

We believe that effluent standards or guidelines are essential if EPA is to place effluent restrictions on the tens of thousands of dischargers applying for permits. Efforts must therefore be renewed to develop adequate effluent standards as soon as possible. Technically sound standards could be developed within a year for 90 percent of the industrial sectors, particularly given the data currently being received in permit applications. If EPA believes it lacks the legal authority to use such standards or guidelines, they should be formally promulgated by the Army Corps of Engineers, which clearly does have such authority."

NRDC further criticized EPA's apparent intention to de-emphasize both civil and criminal remedies available under the Refuse Act.² While conceding that "EPA's overall plan should not be overlooked" and that "priorities for prosecution must certainly be established," NRDC added:

U.S. attorneys who request technical help in the preparation of their enforcement actions should receive it. EPA does not have the necessary manpower to keep an adequate check on the many thousands of polluters around the country. Citizens working with their U.S. [1 ELR 10136] Attorneys can be an important source of investigative manpower that should not be overlooked. Moreover, we believe that all dischargers who are refused permits should be referred to the Justice Department for possible legal action and that Justice should prosecute these cases to the limit of its resources, giving due regard to the seriousness of the case EPA's view.³

The central theme which runs throug NRDC's critique of the Refuse Act Permit Program is a wariness of the danger that the program could, if improperly administered, result in a "license to pollute" for tens of thousands of industrial establishments which, in the absence of civil and criminal enforcement proceedings provided under the Refuse Act, would be subject only to the loose and cumbersome mechanisms discussed supra with respect to the FWPCA. Thus, in addition to its request that EPA cooperate fully with local U.S. Attorneys in enforcing Refuse Act penalties against major polluting firms, NRDC further urges EPA to adopt the same tough approach with respect to inadequate Federal-State water quality standards and water use classifications as it intends to pursue with respect to inadequate state standards,⁴ to draw non-degradation clauses into each permit which are sufficiently tight to prohibit the discharge by any applicant of quantities or types of substances beyond those authorized in its permit, and to strictly revise state implementation plans when EPA's own analysis shows them to be inadequate to achieve desired results.⁵

While it is tempting to defer to the expertise of EPA in the area of water pollution abatement, much of the NRDC critique, and indeed the entire NRDC approach would seem to square both with President Nixon's conception of the approach needed in this area and with what CEQ, in its Second Annual Report, informs the nation is already being done. The President, for example, in his message to Congress on the environment dated February 8, 1971 offered, in part, the following analysis of existing water pollution standards and enforcement:

Water quality standards now are often imprecise and unrelated to specific water quality needs. Even more important, they provide a poor basis for enforcement: without a precise effluent standard, it is often difficult to prove violations in court. Also, Federal-State water quality standards presently do not apply to many important waters.

Among Mr. Nixon's recommendations were those, "to impose precise effluent limitations on both industrial and municipal sources," to "regulate the discharge of hazardous substances," and to "require that the best practicable technology be used in new industrial facilities to ensure that water quality is preserved and enhanced."

With respect to the permit program specifically, CEQ, at page 11 of its Second Annual Report, assured the nation:

There has been no moratorium on use of the Refuse Act to enforce water quality standards while the permit program is being initiated. The Administration has announced that the filing of a permit application will not preclude an enforcement against the applicant. Indeed, since the permit program was announced, enforcement activity under the Refuse Act has continued to increase.

During the first 11 months of fiscal year 1971, approximately 159 criminal actions were initiated under the Refuse Act, compared with 129 criminal actions in the entire fiscal year 1970. In contrast, an average of only 43 prosecutions per year was initiated under the Act in fiscal years 1964-69. Most criminal actions during the past year have resulted in convictions and assessment of fines. In one case alone, a violator was fined $125,000; in another $25,000.

More important, however, than the increased use of the Refuse Act for criminal prosecutions has been the use of civil suits under the Act to secure injunctions to halt discharges of harmful material. The first civil injunction [1 ELR 10137] ever initiated under the Refuse Act was filed in 1970 against the Florida Light and Power Co. to abate the discharge of heated water into Biscayne Bay. During fiscal year 1971, more than 50 additional civil suits were filed to enjoin objectionable discharges.

Any retrenchment of the Refuse Act prosecutions as a matter of policy would, moreover, come at a time when the Act has survived recent court challenges (see discussion, infra), and also when the various U.S. Attorneys' methods for the collection of evidence against polluters and the encouragement of assistance from members of the public. In one important case, U.S. v. Maplewood Poultry Co., 1 ELR 20078 (D.Me. Dec. 28, 1970), the court denied defendant's motion to dismiss two Refuse Act prosecutions on the ground that the law was being applied arbitrarily, in violation of due process, since no such charges were filed against other Penobscot Bay polluters, stating that, "… defendants have neither alleged nor proved that the present prosecutions were based upon any arbitrary, illegal, or otherwise unjustifiable standard. The mere fact that other offenders have not been prosecuted does not constitute a denial of Due Process or Equal Protection; intentional or purposeful discrimination must be shown."⁶ 1 ELR 20078-79. Several months later, when defendant moved to arrest judgment of conviction on the grounds that the Refuse Act applies only to pollution which interferes with navigation and that defendant was in compliance with applicable state standards under FWPCA, the court again found against defendant on both grounds holding with respect to the FWPCA allegation.

Defendant's contention that the prohibitions of the Rivers and Harbors Act have been superseded by the all-inclusive pollution control provisions of the FWPCA is sufficiently answered by reference to Section 24 of the latter Act, 33 U.S.C. § 1174 [1 ELR 41101, 41125], which specifically provides that the Act:

Shall not be construed as … affecting or impairing the provisions of § 407 … of this title …

U.S. v. Maplewood Poultry Co., 1 ELR 20298, 20299 (D.Me. June 10, 1971). See also United States v. Interlake Steel Corp., 297 F. Supp. 912 (N.D.Ill. 1969), United States v. Vulcan Materials Co., 1 ELR 20086 (D.N.J. Sept. 24, 1970), United States v. United States Steel Corp., 1 ELR 20341 (N.D.Ind. Nov. 10, 1970).⁷

Further impetus to an effective Refuse Act prosecution approach was provided on July 22, 1971 when Richard L. Thornburgh, U.S. Attorney for Western Pennsylvania, became the first federal prosecutor to promulgate specific guidelines for citizens who seek to gather evidence of water pollution by industrial firms in violation of the Refuse Act. The guidelines, which deal with such matters as water sample gathering and analysis and the collection of photographs and other supporting evidence are reprinted in full at 1 ELR 46101.⁸ A substantially identical "check list" was published by Whitney North Seymour, Jr., U.S. Attorney for the Southern District of New York on August 2, 1971.

While basic notions of justice and fair play would militate against the overzealous prosecution of every firm discharging effluence into the nation's navigable waterways regardless of the efforts being made to comply with reasonable new standards, particularly if such prosecution relies upon information furnished by the involved firmin conjunction with its permit application, the case remains strong for selective utilization of both the civil and criminal mechanisms of the Act, plus the use of those mechanisms to obtain implementation of rigorous new anti-pollution standards geared, where possible, to the particular industry or plant involved. While no one is yet urging EPA to deny summarily those permit applications for which extensive field analysis or the immediate establishment of effluent limitations is impossible it must also be kept in mind that these plants have, in discharging effluence into navigable waters without permits, been operating lawlessly and often at great hazard to the public for anywhere from one day to as much as seventy-two years. At the very least, permits granted to applicants in cases where extensive early analysis is not possible should be of short duration and tied to requirements that new, more rigorous standards be promptly met as they are developed.

1. Alexander Polikoff, "The Interlake Affair," The Washington Monthly, March, 1971.

2. No. 11 of EPA's Guidelines on Water Pollution Enforcement, issued June 21, states: "When U.S. Attorneys, citizens, or environmental groups call the [EPA] region's attention to specific areas of pollution, action with respect thereto must be coordinated with EPA's overall plan. In other words, the attention and resources of the Regional staff should not be unduly diverted by outside requests." See also Guidelines X A-C, 1 ELR 46310.

3. Undoubtedly, both NRDC and EPA recognize that the evidentiary difficulties involved in prosecuting a polluter for violating the terms of its permit far exceed those for prosecution of a polluter operating without a permit although the 1899 Act makes no legal distinction between the two offenses. EPA officials believe that monitoring requirements invoked in regards to the estimated 2,500 large polluters for which explicit effluent limitations will be set will facilitate prosecutions for violations of the permit should they occur. In regards to most other permittees, enforcement procedures will be tied to FWPCA standards. Since enactment of the initial Water Pollution Control Act of 1948, only one such case has been successfully prosecuted.

4. EPA sets somewhat different guidelines for dealing with Federal-State as opposed to state standards. Section V-C of its "General Policies" statement of July 21, 1971 provides:

If an applicant is discharging an inadequately treated effluent but is in compliance with state water quality standards which EPA considers inadequate, EPA will recommend granting the permit subject to special conditions specifying additional requirements for effluent treatment or control as may be required to achieve acceptable standards.

Sections VII-A and B of the Statement, which deal with Federal-State standards, provide:

A. If EPA determines that applicable Federal-State water quality standards are inadequate, EPA will recommend that the duration of the permit be limited.

B. Where EPA determines that a Federal-State water use classification is inadequate, EPA will recommend that the duration of the permit be limited to three years or less. At the same time, EPA will notify the applicant and the state that it intends to initiate formal procedures to upgrade the inadequate standards.

Commenting on these diverse approaches, NRDC, in its critique of the Program states:

In other words, when interstate water standards are found by EPA to be inadequate, EPA will issue the permit anyhow and then begin the process of revising the standards. NRDC believes that there is no reason to put off good water quality standards and that if the present standards are inadequate, then "additional requirements for effluent treatment or control as may be necessary to achieve acceptable standards" to interstate waters as to intrastate waters.

5. Permits issued under the new program will have a life span of anywhere from a minimum of 6 months to a maximum of 5 years. EPA officials estimate that the bulk of permits will have a 2-3 year life span, depending upon the "subjective" judgment of officials reviewing the applications. Presumably those applicants checked less thoroughly will receive shorter lived permits.

6. The due process argument could conceivably be raised again by industrial plants selected to receive specific effluent limitation standards while others are passed over.

7. In United States v. Pennsylvania Industrial Chemical Corporation, 1 ELR 20364 (W.D.Pa. July 26, 1971), defendant argued that its compliance with state water quality standards under FWPCA satisfied any legal requirement of the Refuse Act as well. The court, in rejecting this contention, indicated first that FWPCA compliance was a pre-requisite to issuance of a permit by the Corps of Engineers but that EPA and the Corps could require more stringent standards. Second, the court found that, quite apart from water quality standards, a permit could be denied on "other grounds including the impact on fish and wildlife and the risk to health or safety." 1 ELR 20365. The court added:

Although the regulations command the Army Corps of Engineers to accept the findings of the Administrator of the Environmental Protection Agency (the agency responsible for the administration of the Water Pollution Control Act) respecting the applicable water quality standards and related water quality considerations, they empower the Corps of Engineers to make independent findings as to the other considerations relevant to the determination of whether or not a permit should issue. The supplemental independent authority given to the Corps of Engineers suggests that the standards of the Water Pollution Control Act were intended to assist rather than supplant the application of the Refuse Act. Indeed the standards under the Refuse Act are more stringent. The apparent and logical purpose of Congress in retaining the Refuse Act is to apply its permit provisions to obtain advance assurances of compliance with the standards of the Water Pollution Control Act. The harmony between the two Acts therefore, if imperfect, is not improbable. 1 ELR 20364, 20365-20366.

8. The methods advised by Mr. Thornburgh should be helpful to citizens interested in marshalling evidence against industrial water polluters regardless of judicial district.