A PRIMER OK THE LAW, EVIDENCE, AND MANAGEMENT
OF FEDERAL WATER POLLUTION CONTROL CASES
Prepared by:
LEGAL SUPPORT DIVISION
Ei?vinoi;?;';:r?JiL PHOTECTIGN AGOICY
WASHINGTON, B.C. 20460
MAY 1972
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ACKNOVJLEDGMElNTS
The Office of Enforcement and General Counsel wishes
to acknowledge the Legal Support Division and to thank, in
particular, Thomas H. Truitt, Director, Carol A. Cowgill,
attorney, and Ed Krause, law clerk, for preparing this
manual. A word of thanks is also extended to Alan Kosloff,
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attorney, for his contributions to the Appendix. They were.
assisted by Nancy C. Matthews who typed numerous drafts
with speed and accuracy. Finally, tscxny thoughtful sug-
gestions were contributed by the EPA professionals who re-
viewed the draft manual.
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SUK&'wiY TABLE OF CONTENTS
FnnriRAL iw: o? V/ATFR r^ IITTTON CONTROL.
I. THE REFUSE" ACT
II. CONSTRUCTION GrLAXTS FOIi MUNICIPAL TREATMENT
WORKS
III. SECTION 10 OF TI-I3 FH^iAL WATFrC POLLUTION
CONTROL ACT
IV,, SECTION 11 OF THE FEDERAL WATER POLLUTION
CONTROL ACT .
V. SECTION 21 OF THE FEDERAL WATER POLLUTION
VI. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 .
PREPARING ATfD LITIGATING WATER POLLUTION CASES.
VII. PREPARING TO TESTIFY .
VIII, GATHERING AIID PRESERVING EVIDENCE IN WATER
POLLUTION L'lTFORCEltENT ACTIONS
IX. LITIGATION PROBLEMS .
WATER POLLUTION LITIGATION BIBLIOGRAPHY ......
APPEjsaiX.
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1
15
21
29
34
37
43
52
73
95
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TABLE OF CO:;';;:iiTS
Introduction ..........<*..
FEDERAL I,,W G? WATER l-'OL-MrTION CUirTHOL.
I. THE REFUSE ACT 1
Refuse Matter 2
The Streets and Sewers Exception ....... 4
Navigable Waters and Tributaries . . 7
Stock Defenses 8
• Geographical Exceptions ...... 10
Burden of Proof in Civil Refuse Act Suits . . 12
II. CONSTRUCTION GRANTS FOR MUNICIPAL
TREATMENT WORKS ..... 15
III. SECTION 10 OF THE FEDERAL WATER POLLUTION
CONTROL ACT 21
IV. SECTION 11 OF THE FEDERAL WATER POLLUTION
CONTROL ACT 29
V. SECTION 21 OF THE FEDERAL V/ATER POliUTION
CONTROL ACT 34
IV. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 . . 37
^_ATI;^g_wATr;g POLLUTION LIWSUITS.
VII. PREPARING TO TESTIFY 43
General Instructions for a VJitness ...... 44
Direct Examination .. 45
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VIII. GATHERING AND PRESERVING EVIDENCE IN
WATER POLLUTION ENFORCE fRNT ACTIONS ...... 52
Testimony on Stapling ............. 52
Soir.pl ing Plan and Methodology .... ..... 56
Constitutional Protections .. ...... .. 57
Chain of Custody ............... 58
Testimony on the Results of Laboratory Analyses
and Tests ................... 66
Automatic Water Quality Monitoring Devices . . 68
Reports .................... 71
Testimony on Harmful Effects ......... 71
IX. LITIGATION PROBLEMS . ..... ........ 73
Housekeeping .............. ... 73
Relief . « ....... ... ........ 74
Causation ................... 76
Discovery under the Federal Rules of Civil
Procedure ...... . ............ 78
Disclosure under the Freedom of Information
Act ...................... 85
Negotiations ................. 87
Consent Decrees .... ........... . 90
^^^ ......... 95
APPENDIX.
Tab A. NAVIGABLE WATERS.
Tab E. NAVIGABILITY IN FACT AND NAVIGABLE WATERS OF THE
UNITED STATES.
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Tab C. TRIBUTARY 'DISCHARGES A.t© THE EUIJDEN OF PROOF
UNDER THE ICFUSS ACT.
Tab D. 180-DAY NOTICE INFORMAL HEARING PROCEDURES.
Tab E! SECTION 11 OF THE FSKIRAL WATER POLLUTION
CONTROL ACT.
Tab F, SUMMARY OF SECTION 11, FWPCA DELEGATIONS HAHS
BY EXECUTIVE ORDER 11548 TO THE ENVIRONl-OSNTAL
PROTECTION AGEKCY AI-fD/OR TKS DEPAHTMEJ\T OF
TRANSPORTATION .
Tab G. FPA ENFORC^^-SNT OPTIONS UTO)ER SECTION 11 OF THE
\"%»"» ,~ ^--(-p-,
r £jjj£.J\
Tab K. EXHIBITS I- IV RE CHAIN OF CUSTODY.
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Introducl .ioa
The purpose of this Memual ic to acquaint the reader, whether
lawyer or scientist, with basic legal and evidentiary requirements
related to the preparation end development of a water pollution
enforcement action. This manual is not designed to be a definitive
treatise, but rather to be a "desk book" for ready reference and
guidance.
Much of TP.C existing lew in water enforcement may soon change*
It is believed, however, that in order to understand the new
legislation, it will be necessary to understand the statutes and
case law that preceded it. Additionally, the new legislation will
not alter the management, development, and chain of custody re-
quirements necessary for the acquisition and introduction of effective
evidence in future legal proceedings. Thus, the portion of the
manual devoted to evidence should have on-going value.
The final sections of the manual discuss a number of matters
which are important to the development and implementation of
effective litigation strategy and case management. These last
topics include causation, relief, experts, discovery, negotiations,
consent decrees, and housekeeping considerations.
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This portion of the rccinual Is devoted to a discussion of the
Federal statutes and related case lav: which are of importance to
the water pollution enforcement program of the Environmental Pro-
tection Agency. The nujor topics treated herein are the Refuse
Act of 1899, r.ections 8, 10, 11, ur.d 21 of the Federal Water Pol-
lution Control Act (hereinafter FWFCA), and the Natioaal Environ-
mental Policy ACT of 1969 (hereinafter NEPA).
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__ Ac t
Section 13 of the Riv.-rs and Harbors Act of 1899 (33 U.S.C.
§407), commonly referred to as the Refuse Act, is, at present,
the r.ost effective Federal water pollution enforcement statute
available. Section 13 provides:
That ir shall not be lawful to throw, discharge,
or deposit, or cause, suffer, or procure to be
thrown, discharged, or deposited either from or
out of any ship, bargt-;, or other floating craft
of any kind, or from the shore, wharf, manu-
facturing establishment, or mill of any kind,
any refuse matter of any kind or description
whatever other than That flowing from streets
and sewers and passing therefrom in a liquid
state, into any navigable water of the United
States, or into any tributary of any navigable
water from which the same shall float or be
washed into such navigable water; and it shall
not be lawful to deposit, or cause, suffer, or
procure to be deposited material of any kind in
any place on the bank of any navigable water,
or on the bank of any tributary of any navigable
water, where the same shall be liable to be
washed into such navigable water, either by
ordinary or high tides, or by storms or floods,
or otherwise, whereby navigation shall or may
be impeded or obstructed: Provided, That nothing
herein contained shall extend to, apply to, or
prohibit the operations in connection with the
improvement of navigable waters or consrruction
of public x^oikr,, considered necessary and pro-
per by the United States officers siipervising
such improvement or public work: •-^£i_p-£oxid_ed
further, That the Secretary of War, v/neriever in
the judgment of the Chief of Engineers anchorage
and navigation will not be injured thereby,
may permit the deposit of any material above
mentioned in navigable waters, within limits to
be defined and under conditions to be prescribed.
by him, provided application is made to him prior
to depositing such material; and whenever any
permit is so granted the conditions thereof shall
be strictly complied with, and any violation
thereof shall be unlawful.
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The Refuse Act fallr, within o series of statutory provis-
ions dealing with the protection of navigable waters of the
itftd States and with the regulation of rivei and harbor im-
provements. Special statutory requirements for Kew York, Balti-
more , and Hcmpton Roods Harbors are set forth in aeetionr, 441
through 451. Section 46'"' contains a special dredging provision
for the. State of Maryland. The advr.jniptratiop. of all these
section& is cor.juitted to the Amy Corps of Engineers. The Re-
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fuse Act Permit Program, created by Executive Order 11574, is
jointly administered by the Corps and the Environmental Pro-
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tection Agency.
Criminal penalties are the only sanctions expressly pro-
vided by the Rivers and Harbors Act for violations of section
13. Fines ranging frora $500 to $2500 per violation and im-
prisonment of individual defendants for a maximum term of one
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year are set forth in section 16. Recent Supreme Court de-
cisions have established that, in addition to the express crim-
inal sanctions, the Government may obtain civil injunctive re-
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lief for section 13 violations.
The most frequently litigated issue under the Refuse Act
has been what constitutes proscribed refuse matter. In Uni_ted
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States v. Standard Oil Co. the term was defined to mean "all
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foreign substances and pollutants'1. Justice Harlem, in a
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vigorous dissent, observed that under the majority's definition,
"dropping anything but pure water into a river would appear to
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be a federal nisdeiaeanor". The specific holding in this case
was that coirariercially valuable aviation gasoline constitutes
refuse.
In the Srandgjrd^pi I opinion, one of the few legal pre-
cedents cited for the proposition that valuable oil is refuse
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was L
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a conviction for discharging refuse into the river.
Materials which have been adjudicated refuse matter in-
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elude: iron particle? and. an. oxl substance, liquid petroleum
products,"™ the overburden of earth removed during strip-
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mining/ the ends of wood pilings, floating timber and
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other wooden debris, garbage," heat, sewer sludge,
and many other inousuria] waste constituents.
The
Refuse matter "flowing from streets and sewers and passing
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therefrom in a liquid state" is exempted from the Refuse
Act's general prohibition of discharges to navigable waters not
authorized by a Corps permit. Justice Douglas1 limitation of
this proviso to sewage, in the leading case of
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Republic Steel Corp. , was entirely innovative as there is
no legislative history on the exemption.
The Republ ic St c e 1 case i~eached the Supreme Court on an
appeal from the court of appeals' dismissal of the United States'
suit to enjoin the respondent companies from depositing industrial
solids in the Calumet River and to order them to remove some of
the existing deposits. Reversing, the Court held that the
respondents' deposits of industrial solids created an "ob-
struction" as that term is used in section 10 of the Act and
were nonexempt discharges under section 13.
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The latter conclusion was based on the following reason-
ing:
The materials carried here are ' industrial
solids,1 us the District Court found. The
particles creating tn./ present obstruction
were in suspension, not in solution. Articles
in suspension, such ar- organic matter in
sewage, may xinuorgo chemical chance. Others
settle out. All matter in suspension is not
saved by the exception clause in §13. Re-
fuse flowing from ' r.ew^rs1 in a ' 1 j.niij__st_gte'
means to ur.__; s^wnae^ . . . . The fact that dis-
charges from streets ana sewers nay contain
some articles in suspension that settle out
...- - - and potentially impair navigability is no
reason for us to enlarge the group to include
these industrial discharges. We follow the
line Congress has drawn and cannot accept
the invitation to broaden the exception in
&13 because other matters 'in a liquid state1
might logically have been treated as favor*
ably as sewage is treated. We read the 1S99
Act charitably in light of the purpose to be
served. The philosophy of the statement of
Mr. Justice Holmes in New Jersey v. Hew York,
283 U.S. 336, 342, that 'A river is more than
on amenity, it is a treasure,1 forbids a
narrow,, cramped reading either of §13 or of
§10.
Writing for three other dissenters, Justice Harlan protested:
...I do not believe that §13 can be construed
to proscribe respondents' practices. The term
"any refuse matter of any kind or description
whatever" undoubtedly embraces the matter dis-
charged from respondents' mills. However, 013
expressly exempts refuso "flowing from streets
and sewers and passing therefrom in a liquid
state." The Court says that materials in "a
liquid state" must mean materials which do not
• settle out. But it is difficult to believe
that a nineteenth century Congress, in carving
out an exception for liquid sewage, meant to
establish an absolute standard of purity which
not only bore no relation to the prevailing
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1 practice of sewage disposal at the time, but
also is impossible to achd eve even under pre-
sent-day technology. IT i r- conceded that de-
spite respondents' best efTorts to separate
out industrial solids, a few minute particles
remain. These comprise c. small fraction of
' 1% of the total solution and the most damaging
of them aie too small to be seen under a
microscope. One need not be an expert to say
that the refuse di-scharged by an ordinary
sewer p/;pe today, and a_ fo^t4£?J-_ ^0 years ago,
undoubted]y contc.inc far more solid natter in
suspension than respondents' discharges. Arid
the statute affords no basis for differentiating,
as the Court suqc7es,1s, between industrial and
'J i-t ^ i f
domestic refuse.™!/
A few of the many questions left unanswered by Justice
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Douglas1 formulation of the streets and sewers exception were
resolved in the recent federal district court opinion in Unilred
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States v, Pennsylvania Industrial Chemical. Relying on the;
Webster's definition of "sewer," the defendant in this case con-
tended that excepted refuse matter included all liquid materials
flowing froni undergz-ound conduits. The court tensed this con-
tention "untenable," observing that in Republic Steel the
emphasis was on the identity of the substance in question, rather
than on its mode of conveyance, as the critical factor in de-
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termining the applicability of the exemption. In its charge
to the jury, the court defined refuse matter as "encompassing, in
any amount, all foreign substances and pollutants, except those
flowing from streets and sewers in a liquid state, including
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industrial waste." The jury was instructed that excepted re-
fuse matter is sewage which was defined as "generally, that water,
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filth, and feculent matter deriving visually from human and
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domestic waste, but not including industrial "waste."
Municipal immunity under the Refuse Act exemption was cut.
back substantially by Federal district Judge George H. Barlow
who recently enjoined the pumping of sewer sludge into the
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Atlantic Ocean by a number of small New Jersey communities.
Judge Barlow ruled that sludge, a solid byproduct of sewage
'treatment, is non-exempt refuse matter. This decision has been
appealed.
Naviaable Waters and Tributarie_s
Jurisdiction under the Refuse Act is limited to "any
navigable water of the United States, or ...any tributary of any
navigable water from which the same (refuse matter) shall float
or be washed into such navigable water." There is extensive
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case law, not involving the Refuse Act, . on the legal concepts
of navigability and navigable waters of the United States. Very
briefly summarized, the cases hold that a navigable water of
the United States is one which is navigable in fact, and which
was, is, or could be used as a highiray for interstate commerce.
For a thorough analysis of this topic, see the memoranda
entitled Navigable Wot err, and Navigability in Fact anj Kayiggble_
Waters of the United __Stajtres_ at, respectively. Tab A and Tab B
of the Appendix.
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I A discharge of refuse to a non-navigable tributary is a
violation of the Refuse Act only if it floats or is washed to
• a navigable waterway. This jurisdictional requirement must be
proved beyond a reasonable doubt in a criminal case, and by a
• preponderance of the evidence in a civil suit. For a fuller
I discussion of tributary jurisdiction under the Refuse Act, see
the memorandum on Tributary Discharaer. and the Burden of Proof
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underline Refvise^ct at Tab C of the Appendix.
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In the very recent case of Kalur^^^Regor the Corps of
Engineers was permanently enjoined from issuing permits for
the discharge of refuse matter into non-navigable tributaries.
The injunction was based on the court's literal reading of the
Refuse Act which prohibits "discharges" and "deposits" into
both navigable waters and non-navigable tributaries, but auth-
orizes the issuance of permits only for "deposits" to navigable
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waters. The Kalur decision has been appealed and a re-
quest for remedial legislation has been submitted to Congress.
Stock Defens eg
1 • jacienter 3 n rhe Criminal Case.
Two decisions have held that, in criminal prosecutions
against corporate defendants for Refuse Act violations, the
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Government need not prove scienter. In United States v.
Interlake Steel the court pointed out that, although section 16
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does not require proof of scienter for a conviction of a
substantive section 13 offense, knowledge is an essential
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element of an aiding and abetting offense. Limitations
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on the bi e-adth of strict liability for Refuse Act violations
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were imposed in one urareported and in one recently reported
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case. In the former, the Government was required to prove
that an individual defendant knew of and could have taken
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steps to remedy the Refuse Act violation. The latter case
held that the corporate defendant was not criminally liable
for an oil spill from equipment under the control of an inde-
pendent contractor.
2. C omp 1 i an c e wit h _Wa t e r Qua 1 i t y Standards .
The courts have consistently rejected the contention,
frequently asserted by criminal defendants, that compliance
with water quality standards adopted pursuant to the Federal
Water Pollution Control Act is a defense to Refuse Act pro-
secutions. This uniform judicial rejection is based almost
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exclusively on section 24 of the PWPCA which declares that
the act "shall not be construed as. . .affecting or impairing the
provisions of" the Refuse Act. In the words of one court, "A
clearer statement of congressional intent could hardly be
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found." "
The practical significance of the holdings on this issue
is that water quality standards and compliance therewith may
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not be introduced into evidence in a criminal prosecution
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under the Refuse Act. In response to the argument that the
Refuse- Act Kiakes criminal that which the P^TCA authorizes, a
Federal district court noted that such a contention "overlooks
the permit provisions of. the Refuse Act which are, in effect,
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its saving grace."
The Rivers and Harbors Act of 1899 contains special pro-
visions for certain enumerated bodies of water. The "Chicago"
statute (33 U.S.C. §421), enacted in 1910, prohibits the
issuance of permits for the discharge of refuse to Lake Michigan
from any point within eight miles of the shoreline in Cook
County, Illinois and in Lake County, Indiana* In a recent
criminal Refuse Act case involving the U.S. Steel Corporation's
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South Works plant in Chicago, the defendant argued that it
was entitled to be indicted under the "Chicago" statute (for
which the maxiraura criminal penalty is only $1,000) rather than
under the Refuse Act. In rejecting this argument, the court
relied on the legislative chronology of and the differences
between the two statutory provisions:
(D)ef endants in a criminal prosecution have
no right to choose the statute under which
they are brought to the bar of justice.
Since Congress presumably was aware of 8407
when it enacted the "Chicago" statute and
did not araend §407, then the only possible
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conclusion is that it incended §421 to
supplement i?407. Also, thtsre are dif-
ferences between the two statutes. Sec-
tion 421 permits some dumping if the
discharge is ruade inr>;. de of a break-
water so arro.rvjcd as not to permit the
escape of such refuse into the body of
the
However, the court did agree that, after a Refuse Act prose-
cution, a defense of double jeopardy would be available in a
subsequent prosecution for the same offense under the "Chicago"
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statute.
Like the "Chicago" statute, the special criminal provisions
(33 U.S.C. §§441-451) governing New York Harbor, Harbor of
Hampton Roads, and the Harbor of Baltimore supplement rather
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than supersede the Refuse Act. Originally enacted in 1888,
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section. 441 "strictly forbid(s)... the placing, discharging, or
depositing, by any process or in any manner, of refuse, dirt,
ashes, cinders, mud, sand, dredgings, sludge, acid, or any
other roatter of any kind...within the limits which shall be
prescribed by the supervisor of the harbor(s)" specified in
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section 451. This New York Harbor Act of 1888 contains the
original exemption for refuse matter flowing in a liquid state
from streets and sewers.
Other minor geographical provisions are contained in sec-
tions 420, 422 - 424, 452 - 454, and 465.
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Burden jjf jPt oof _in Civi^l Rejf.ise Act_SuJ t_s.
It is clear that the civil relief fashioned by the Fed-
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eral courts out of the Refuse Ac t cloth sounds in equity
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and can be; granted only upon a persuasive showing that, unless
abated, the defendant's discharge will cause or will continue
to cause harm.
To obtain temporary or preliminary injunctive relief,
the Goverrunent must make a showing of irreparable harm. Failure
to sustain this burden resulted in a denial of the Government's
application for a preliminary injunction to halt discharges of
heated water into Biscayne Bay, Florida from the Turkey Point
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nuclear power plant. However, the court expressed concern
that the heated effluent from two additional units, scheduled
for completion in 1971 and 1972, might have an adverse effect
on the Bay. For this reason, the court later held hearings for
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the purpose of taking additional evidence on harm, and. the
case was nettled by consent decree.
It is likely that temporary and preliminary injunctive
567
relief will be granted only very infrequently in water pol-
lution suits. In addition to a showing of harm, the extra-
ordinary remedy of a temporary restraining order (T.R.O.) or
a preliminary injunction is granted only upon a showing (1)
that the plaintiff is likely to prevail on the merits, and
(2) that the granting or withholding of permanent relief will
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not become moot. The traditional function of preliminary in-
junctive relief is to maintain the status quo. Thus, a court
will not issue a T.R.O. or a preliminary injunction if the
effect would be the same as granting permanent injunctive re-
lief. Similarly, a court will not deny a preliminary in-
junction if the effect of a denial would be to make the iss-
uance of a permanent injunction meaningless. A T.R.O. or a
'preliminary injunction is inappropriate in most civil water
pollution suits because the relief sought is permanent, re-
quiring the construction of abatement facilities.
Permanent injunctions were issued in United _Stotes; y.
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Armco Steel Corp. and in United^States v. City of Asbury
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Park on the strength of the Government's impressive proof
of irreparable harm. Arroco Steel's discharges were described
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in the opinion as having a "massively poisonous quality"
with "results, actual and potential, deleterious and even
deadly to the existence and survival of organic and marine
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life in the (Houston Ship) Channel." In Asbury Park, the
court found that the sewer sludge being discharged by the 16
municipal defendants into the Atlantic Ocean constituted both
immediate and irreparable harm to marine life, to the environ-
ment generally, and "to those many thousands of human beings
who utilize the coastal waters along the New Jersey beaches
for year-round recreation."
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• Although there was ample proof of irreparable hana in
these two cases, the Agency takes the po-ition that evidence
• of something less than irreparable harm should be sufficient to
_ obtain pei'iaanent injunctive relief under the Refuse Act.
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II
Cor struct ion Grant s for Kunicipal_ Tr ratr..ent VJork s.
The Federal construction grants program, governed by what
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is now section 8 of the FWPCA, began with the passage of
Public Law 84-660 in 1956. Section 8(a) authorizes EPA to
"make grants to any State, municipality, or intermunicipal or
interstate agency for the construction of necessary treatment
works to prevent the discharge of untreated or inadequately
treated sewage or other waste into any waters and for the pur-
pose of reports, plans, and specifications in connection there-
with." The grant authority is not limited to sewage and
domestic wastes; municipal treatment plants that treat in-
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dustrial wastes are eligible for Federal construction grants.
In addition, the grant authority extends to "any waters," not
just to navigable and/or interstate waters.
EPA regulations define treatment works to mean "the various
devices used in the treatment of sewage or industrial wastes of
a liquid nature, including the necessary intercepting sewers,
outfall sewers, pumping, power, and other equipment and their
appurtenances, and includes any extension, improvements, re-
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modeling, additions, and alterations thereof."In'brief,
section 8 construction grants are available for all portions
of a sewage treatment system except lateral sewers. Federal
assistance for the construction of sewers is available under
IS
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the V.'ater and Sewer Program authorised by the Housing and
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Urban Development Act of 1965. Thin statute includes the
proviso that no HUD sewer facilities grant may be issued with-
out the EPA Administrator's certification that "any waste
material carried by such facilities will be adequately treated
before it is discharged into any public waterway so as to
meet applicable Federal, State, interstate, or local water
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quality standards.""
A section 8 construction grant may not exceed a maximum
of 55% of the estimated reasonable cost of an eligible pro-
ject. The remaining costs must be borne by the municipal
recipient with, in many cases, some financial assistance from
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the State. The statute provides a basic Federal grant of
30% of anticipated costs which can be increased to 40% if the
State undertakes to pay at least 30% of the costs for all
federally funded waste treatment projects. The Federal share
can go as high as 50% if, in addition to the State's agree-
ment to fund 25% of all treatment works construction costs,
"enforceable water quality standards have been established for
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the waters into which the project discharges." To be
eligible for the maximum 55% Federal grant the recipient's pro-
ject must be certified to be "in conformity with the compre-
hensive plan developed or in process of development for ...(the
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surrounding) metropolitan area."
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The .statutory criteria for determining the desirability
of a proposed treatment works project are:
the public benefits to be derived by the con-
struction and the propriety of Federal aid in
' such construction, the relation of the ulti-
mate cost of constructing and maintaining the
works to the public interest and to the public
• necessity for the woiks, and the adequacy
of the provisions made or proposed by the
applicant for such Federal financial aid
for assuring proper and efficient operation
and maintenance of the treatment works after
'completion of the construction thereof .
In addition to the considerations to be taken into account in
determining project desirability, EPA regulations include a
list of the criteria to be used to determine the propriety of
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Federal aid for individual projects.
Among the statute's mandatory eligibility requirements for
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a section 8 construction grant are the project's conformance
with a section 7 State water pollution control plan and inclusion
of the project in a section 3 comprehensive program. EPA's
regulations, respectively, repeat" and relaxT~/^ the terms of
these two statutory requirements. In addition, EPA regulations
require that all construction grant projects be included in
"an effective current basinwide plan for pollution abatement
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consistent with applicable water quality standards," and
"in an effective metropolitan or regional plan developed or in
the process of development, and certified by the Governor or
his designee as being the official pollution abatement plan...."
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In both cases, if there is no plan in which the applicant's
project can be included, the Administrator may waive the re-
quirement if he finds that the project will contribute to an
improvement of the water quality or the prevention of water
pollution in, respectively, the bosin~~ and the metropolitan
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area or region.
One of the most important grant eligibility prerequisites
provided in section 8 is the requirement of a satisfactory
assurance by the applicant that the completed waste treatment
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facility will be operated and maintained efficiently. By
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regulation, a satisfactory assurance is defined as one
which provides that if the treatment plant is
constructed, operated and maintained in ac-
cordance with plans, designs and specifica-
tions (, it) will result in: (1) substan-
tially complete removal of all floatable and
settleable materials; (2-) removal of not less
than 85 percent of five-day biochemical ox-
ygen demand; (3) substantially complete re-
duction of pathogenic micro-organisms; and
(4) such additional treatment as may be
necessary to meet applicable water quality
standards, recommendations of the Admin-
istrator or order of a court pursuant to
section 10 of the Federal Act; Provided, that
in the case of a project which will dis-
charge wastes into open ocean waters through
an ocean outfall, the Administrator may
waive the requirements or subparagraph (2)
of this paragraph if he determines that such
discharges will not adversely affect the
open ocean environment and adjoining shores;
Pioyiged Further, that in the case of a pro-
ject designed solely to treat or control wet
weather combined sewer overflows, the Admin-
istrator may waive the requirements of sub-
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paragraphs (2) and (3) if he finds such pro-
ject to be consistent with river basin and
regional or ;aetropolitan plans to meet ap-
proved water quality standards.
Additional assurances must be made by applicants proposing
to build a joint municipal-indxistrial waste treatment plant.
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The applicable regulation," promulgated in July 1970, begins
with a statement that projects designed to treat industrial
wastes are eligible for Federal construction grants, provided
such projects are part of "a waste treatment system treating
the wastes of the entire community." However, an applicant pro-
posing such a project must assure the Administrator that
deleterious industrial wastes will either be adequately pre-
treated or not admitted to the treatment plant. Finally, the
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regulation requires an assurance from the applicant that it
has or will have in effect "an equitable system of cost re-
covery" which
may include user charges, connection fees or
1 such other techniques as may be available
under State and local law. Such system shall
provide for an equitable assessment of costs
whereby such assessments upon dischargers of
industrial wastes correspond to the cost of
the waste treatment, taking into account the
volume and strength of the industrial, dom-
estic, commercial wastes and all other waste
discharges treated, and techniques of treat-
ment required. Such cost recovery system
shall produce revenues, in proportion to the
percentage of industrial wastes, propor-
tionately, relative to the total waste load
to be treated by the project, for the oper-
ation and maintenance of the. treatment works,
for the amortization of the applicant's in-
debtedness for the cost of such treatment
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works, and for ^uch additional costs as may
be necessary to assure adequate waste treat-
ment on a continuing
The regulation concludes by defining "industrial waste" to
mean
the waste discharges (other than domestic
sewage) of industries identified in the
Standard Industrial Classification Manual,
Bureau of the Budget, 1967, as amended and
supplemented, under the category "Division
D — Manufacturing," and siich other wastes
as the . . . (Admiiiittrator) ceems appropriate
for purposes of this section.
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III
federal Water Pol lution Control Act.
When originally enacted in 1956, Section 10 of the Federal
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Vfoter Pollution Control Act did not provide for the promul-
gation and enforcement of State water quality standards. Pol-
lution of interstate or navigable waters, which endangers the
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health or welfare of persons, was proscribed; a cumbersome
administrative and judicial mechanism was provided fer enforcing
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this general proscription.
The first of the protracted administrative steps is the
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enforcement conference which the Administrator "shall" convene
upon the occurrence of one or isor* of four conditions listed
in subsection (d)(l), i.e.: (1) a request by the Governor, the
State water pollution control agency, or (with the concurrence
of both of the foregoing) a municipal authority to abate pol-
lution which is causing interstate endangerment of health or
welfare; (2) a req~uest by a Governor to abate pollution which
endangers health or welfare only in the State of the requesting
Governor; (3) reports, surveys, or studies which give the Admin-
istrator reason to believe that pollution causing interstate en-
dangerment is occui'ring; and (4) a finding by the Administrator
that substantial economic injury results from the inability to
market shellfish or shellfish prodxicts in interstate commerce
because of pollution.
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If interstate endangerraent is not occurring, the Admin-
istrator may call a conference only if requested to do so by the
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Governor of the State where the polluting discharge originates.
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This limitation does not apply to the shellfish clause, the
fourth condition listed above. Subsection (d)(2) authorizes
the Administrator to call an enforcement conference when the
health or welfare of persons in a foreign country is endangered
by pollution from one of the United States, provided the con-
ference is requested by the Secretary of State.
No formal procedural rules have been adopted for conducting
subsection (d) enforcement conferences. Although all enforce-
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ment conference proceedings are transcribed, witnesses and
conferees who testify are not sworn and, generally, are not
cross-examined. By statute, final enforcement conference recom-
mendations must be directed only to the appropriate State water
pollution control agency and must allow at least six months for
any recommended remedial action to be completed.
If remedial action is not effectuated by the State agency
within the allotted time, the Administrator's recourse is to
appoint and to order a public hearing before a Hearing Board
of at least five members. Both State and local pollution con-
trol agencies and the alleged polluter(s) are to be given at
least three weeks notice of the hearing and are to be afforded
the opportunity to make a full statement of their views.
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Procedural rules governing proceedings before the Hearing
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Board have been adopted. A verbatim transcript of the hear-
ing is made, parties are entitled to present evidence and to
cross-examine witnesses, and the Board is authorized to rule
on the admissibility of e%'idence, examine witnesses, permit
oral argument, grant intervention, and make final findings,
conclusions, and recommendations. Trie Hearing Board does not
have the power to issue subpoenas. By regulation, a hearing
is not to be terminated because of the absence or non-appear-
ance of a putative party.
In any section 10 hearing and at the request of"a majority
of the conferees in any enforcement conference, the Adminis-
trator is authorized to require alleged water polluters to file
a report, "under oath or otherwise," describing the pollutants
being discharged and the treatment or abatement practices being
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utilized. Trade secrets and secret processes need not be
divulged. A person who fails to submit a report within the time
specified by the Administrator is subject to a civil penalty of
$100 for each day the default continues. Subsections (f)(4)
and (k)(3) provide that it is "the duty of the various United
States attorneys, under the direction of the Attorney General
of the United States, to prosecute for the recovery of such
forfeitures." To date, no suit has ever been brought under
either of these provisions, although EPA has promulgated regu-
lations governing the utilization of section 10's reporting
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requirements.
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If, at the conclusion of the hearing, there is a finding
that pollution is occurring and that effective progress is
not being made to abate said pollution, the Hearing Board is
required to recommend to the Administrator "the measures, if
•
any, which it finds to be reasonable and equitable to secure
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abatement of such pollution." it is then the Administrator's
statutory responsibility to forward these recommendations,
along with a notice for final compliance of not less than six
months, to the appropriate individual polluters and to the
State water pollution control agency.
"If action reasonably calculated to secure abatement of
the pollution" is not taken within the latter notice period,
the Administrator "may request" the Attorney General to file
9J7
a lawsuit.' The written consent.of the Governor of the State
where the pollution originates must be obtained if there is
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only intrastate endangerment of health or welfare. Sub-
section (h) prescribes the scope of judicial review of section
10(d) enforcement proceedings.
The court shall receive in evidence in
any such suit a transcript of the proceedings
before the Board and a copy of the Board's
recommendations and shall receive such further
evidence as The court in its discretion deems
proper. The court, giving due consideration
to the practicability and to the physical and
economic feasibility of securing abatement of
any pollution proved, shell have jurisdiction
to enter such judgment, and orders enforcing
such judgment, as the public interest and the
equities of the case may require.
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All three steps of this erv'orcer.ent procedure have been
used in only one case, Unit^-j5. .M cr;:-^r, \^ 'H^Y, of__S_t^.__J
Missouri which v:a.:r, ^cttle-d. ;r,;ir>r to trial with c> consent
H/
decree.
The Water Qualify Act of 1965 (P.L. L9-234) a::.-nded sec-
tion 10 by requiring each Slate. Loiore Jane, 30, 1967, to
adopt federally enfc-iceoLlr water quality standards for the
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portions of interstate waters within their respective borders.'
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An elaborate standards-setting conference * and hearing board
procedure is provided for States that eithor fail to comply
with the initial obligation to promulgate satisfactory water
quality standards" or subsequently decide to revise "their
federally approved standards."'"
The water quality stondo.ro ,c:. requirccl by subsection (c)(l)
include both criteria end a plan for their implementation and
enforcement. Paragraph (3) provides that these "standards of
quality" naist be "such as to protect the public health or wel-
fare, enhance the quality of th« water and serve the purposes
of this Act." In addition, tho standards are to be based upon
a consideration of the value of the interstate waters for the
following uses: public water supplies, propagation of fish
and wildlife, recreational purposes, agricultural and indus-
trial uses, navigation, and other legitimate uses.
The Federal Water Pollution Control Administration pub-
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lished two sets of guidelinesto assist the States in adopting
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acceptable voter quality standards before publishing Wat.er
_Ccj:cv,lt_T^e on April ], IS^CS* This report rc-co-.T.'.cnds physical,
chemical, and biological quality C;; reactor istlcs for the nain
categories of water u;-;^:. An earlic •;: clocu^enj which is sii>:J lar
•
and/ in many respects, .superior to !}..<,-= K1V-.C rf-port is McKoe
and Wolf, W^t_er_Qu^J._itY_^lA1: eXicl'- ?-fJi'-^urces Agency of California
(2d Eel. 1963), A revised edition of tlic 196G IffAC report vill
I22/
soon be published.
According to a February 24, 1972, tabulation by the Water
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Quality Standards Division, all but eight ~ States have
K>2/
fully approved standards. ™ All State water quality criteria
include dissolved oxygen, temperature, oil, turbidity, suspended.
solids, pH, and other paicuneters needed to achieve and/or main-
tain designated water use classifications. EPA insists that
K>3/
State standards also contain a non- degradation clause, re-
IQ4-/
quire a minimum of secondary treatment for all discharges,
and include an implement ax ion plan with a compliance tirae table."*'
Federal enforcement of approved water quality standards
is procedurally, if not evidentially, simpler than the enforce-
ment process required to abate "pollution". Subsection (c)(5)
provides that the "discharge of matter, into...interstate waters
or portions thereof (including tributary discharges), which
reduces the quality of such waters below the water quality
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(?) c- (2) cf t,.--.- ;rtuon («.}
Th^'-a t\K> pore-, ropr.s a < .-•.:.:./ ::..".:. .-.
ran----- :ntc:; 5 t:et'? f.-r;-"c-•:,•;.- ;r.i t«
p^r.-uns or.ci t'v.r which c\.. ^L ^.; on' '
In th; CC.EC- of "cho javl^i, i;:-^ •. '.,'.:' •- a coi:; "'".'c c." xb,:. Cover ..^r
.of t'ho State vherc the pi-llutioii o: i~ir.a,.-..: KU.--;- lu c.jcoined
before the United Stotur- can fiK; a Ic.w:-u5.t. To oote, only
one lawsuit under §10(c)(5) lias b.-x'i filed."""'"'
Section 10(c)(5) prcvidr-3 ~];:r;. a purcl'ix^ defendant nrar t
be- notified at least 100 days in oavonce of tr.;• Gov ;• v rr^nt ' s
intention to j,ae for th»: c;tc..t-_...^iit of v;c±er quc.ii.ty Ktandcxrcj^
EPA has adopted a set of u'lpublis^vd procc-c.M.rc s for holding an
informal pxiblic hearing during tha luO-ccy ».olicc period. "
Tlie objective of the in.f:oi:.7.al hearing procedure is to obtain a
satisfactory abatement agreement frcra the notified polluter,
thex*eby avoiding a trial. If an cere'.-.sent ir> not reached d':?ring
the hearing, EPA1s procedures authorise end encorrage extra-record.
settlement negotiations until expirotion of tho- ISO-day notice
period.
108/
Agreeinentr ot'tainecl GUT ing or a '/Terr an infori'/il
hearing are to be memorialized in c "forrr.al vn v,tte-m Htat:.--. nr ,.
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subscribed to by each of tlie parties. i!
Subsection 10(c)(S) provides that, in any water quality
standards violation suit, the court is to review the transcripts
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and rcco-'..'C'ndaticr:,'-i i*cn any F-, d^ral sto.iuardjj-ccl t i'-j pro-
ceeding.'; ri:Ji i? tc conr.ri.der "su^h ci'V.'»ix-icnal evid-'xCe, in-
cluding tr.c.t relatii-g 1 o the ailc-^i-cl violation of thcv stan-
dards, as ic dccius r^cessory to i}_S::^~\'L-\- ,Tr>'2,1H_~cljir_.>::Jr,»r-''l _"
dar^cl^ c!i-i to a de^ -.. -\natio-: o'f all ot>' r ir;;vjo-s r-.-lotirg to
th.e alle:;v I violatic.r.." (H:'.ohciis cJdc.'u ) Althuu.jh tha
statute directs- the court to- <_r?tcr a juc-'jvint which is con-
sistent with-"the pub] ic interest carl the equities of the case;,"
it also requires that the judgment he based upon "dae con-
sideration* , . (of) the practicability arc! . . . (of) the physical
and economic feasibility of cor^lyirig witli,.. (the applicable
v/ater qiKility) standards."
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IV
The Water Quality Improvement .vet of 1970 (P.L. 91-224) '
repealed the Oil Pollution Act of i'V.-i (43 Stct. £04), as;
arcc-ndf-d by t;.? C.I can Wat <.-_;;, Restore vio,i Act of 1966 (80 Stat.
12^0), and ocicU \:hut in r...v section 31 of the-. )' d-r-ral Vc.tc.r
i:l£/
iPollurion Control Act""" ' to deal viLrz rhe confrol of po.llr.tion
by oil. The provisions and the legislative history of this
statutory amendment are, dir.cru.ssed crc length in a cenor
entit 1 ed S^c^L^D^Itl^^ ?r
at Tab E, Appendix.
Subsection 11 (b) (I) contains o. statenent of policy that
"there should be no discharges of oi.1 into or up en the nc vig^blo.
v/atcrs of the United States, adjoiiiing shoreliric-r- , or into or
upon the waters of the contiguous ?:anc." In conrrast, pub-
section ll(b)(2) prohibits (with certain exceptions) only the
discharge of oil "in harirJTul quantities," as determined by the
111/ 112/
President. Executive Order 11543 delegated the auth-
ority to define what constitutes a hairaful quantity of oil to
EPA, in consultation with the Depo;-ti;-.c:nt of Ttcnsportatiori.
U3/
The regulation subsequently promulgated by EPA provides two
alternative definitions of hariaful qaj.ontities of oil: a. d.isc?targe
whicli "(a) violate(s) applicable water quality standards, or
(b) cause (s) a film, or sheen upon or discoloration of the surface
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of the water or adjci.-.;l:i~ r.horc 15:*;-•.:> or coa^o(s) a sludge or
e.r.ul.~iori to he depo-.Ltoo beneath the surface of thp water or
upon adjoining shorelines. "
The stature provide.:-: a erir.;nal and a civil Dane t ion for
violating the "harr.Lfi'O cuantitic-**" prohibition of subsection
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ll(b)(2). Undtr sub.^-.c-.; on ll(b)(-;-), oersoru- .in charge---'
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of a vessel or an orn.nore or ofii.hore facility must ar-uaediately
U6/
notify the appropriate federal official os soon as such
person has knowledge of a discharge of oil in violation of sub-
section 11 (b) (2). Failure, to do so subjects the perr.on to a
fine of up to $10,000 and/or imprisonment for a laaxitrvun tern
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of one year.""" Subsection 11(b)(5) provides that a civil
penalty of up to $10,000 may be asr.cssed by the Coast Guard
against "(a)ny owner or operator of any vessel, onshore facility,
or offshore facility from which oil is knowingly discharged in
violation of (subsection ll(b)(2))."
The "visible sheen test" provided in the administrative
definition, of harmful quantities of oil was challenged recently
in an individual defendant's motion to dismiss an information
* 1 1 o /
filed under subsection ll(b)(4).~ The defendant contended
that, in promulgating the administrative definition, the Sec-
1? 9/
retary of* the Interior did not heed the statutory direction,™"
reiterated in Executive Order 11548, that the definition specify
the "times, locations, circumstances, and conditions1." under
which certain quantities of oil would be harmful. Noting that
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o sincjlf. drop of oil could ccrar-c a v:";..ib.lt; sheon, the defer.~r;nt
urged that ccmpliance could bt- u'chicvc-I only by aicchargin:, re-
oil at all. Def eivic:it concliot 3 th:,t the reg-ulo.ii.VA is, tl;^re-
£ o X" e, a r b i t r a r y c n .1 c e p r a c: c/a ^ -
f>\'L.<,ection lJ(c)(2) calJ:; for the £ r, trablir.K ".cnt of o.
National Contingr-nry Plan -,;h.ich "sh^l.l prcv-LOo for eff ic5 ci«l-,
coordinated, and effective action to minimize dancicic £rom oil
discliargcs, including contain^mat, di^p.rrsal, and renoval of.
oil...." The responsJ,bility for executing this nandate was
delegated to the Council on Lnvixonmental Quality on July 22,
120/ _ 3?I/
1970;"— -~J the fina] plan was published in August of 19/1. '"
Subsection ll(j)(l) coriplenients the National Contingency Plan
requirement by providing that the Preric>.nt shall j.csue recru-
"i?-2/
lotions governing the removal and prcve.it-ion cf oxl spills,
establishing criteria for the development and iiaplamentation of
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local arid regional oil removal contingency plans, and
governing the inspections of oil cargoes and ths vessels
i *?/* /
carrying them.A civil penalty of not more than $5,000
may be assessed for each violation o~ a suLsection H(j)O)
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regulation."
Both subsections 11 (d) and 11 (e) are "eiaergency" pro-
12o/
visionswhich can be used only in vary limited and infre-
quent situations: the former is applicable only in the event of
a "marine disaster" threatened or caut.rd by vessels; the latter
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can be invoked only v^-c.n the Prt_-:_. L;lc-nt determines thac "an
actual or threatened dice/large of oil ...frcur, an onchore or
offshore f c.ci] ity" paces l:an ir .iin :nt ar.d substantial threat
to the p-.uM.ic health cr wolfcri.. " U,r?cr 5.~vsection 11 (d),
the United States nny avert or rc'-v.-dy tha u.j.rine disaster by
rupervirinj rhe rer.C'Vcl cf spilled '>I1 c.r.- ,. :i x n&c\:;-:..".
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a vessel o'.'aer' s liability for any loss or da:xac:e caused by
his vessel nay not "c-.xceca the -.• ^oinit or VQ.IUO of tre- inter-
est of such owner in r.uch ves::'.\l, and her freight then
i2-y
pending."" There ha?> not yei bc-cn a judicial resolution
of the qvrr>rion whetlirr, with r.-.-.rx-.ct to the United, --tates1
right to recover oil -.pill elf. rn -up costs, .^action 1.1, FWPCA
superseded ana implitdly repealed the Limited Liability Act.
However, one Federal district court has held that States' and
private parties' ciair.s. for or" 1 r,pill removal costs arc sub-
135 /
ject to the Limited Liability Act.""^'7
To assure full recovery under section 11(f), subsection
11 (p)(l) requires t'hat vessels and barges over 300 cross tons
which use United States ports an-J navicjablc waters establish
and maintain evidence of financial responsibility of $100 per
gross ton, oz $14 raiJlion, whichever is less. This provision
has been interpreted, by regulation, to be inapplicable to
barges that are not self-propelled and that do not carry oil
136/
as cargo or fuel." The evidence of financial rcsnonnibality
requirement may be met by obtaining insurance, filing a surety
*
bond, qualifying as a self insurer, or by some other satis-
factory rtfithod. Any claim by the United States for costs
under section 11(f) nay be brought directly against the insurer,
who may raise any defense available to the owner or operator.
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V
Section 21 c'" the IV-loroJ Uatcr r_illut::o:i Control Act."
The bar.j'.c purpose of section 21 is to assure that the Fed-
eral government, in the- GDrrini.s'Li ation of its property and in
the if.suance of lice.nsc-s and pfc.ivi:i i 3, complies with applicable
State water quality £t-..,i.cards.
Section 21 (a) requires .that in the administration of any
property, facility, or activity over which they have Juris-
diction, all Federal agencies shall insure compliance with
applicable State water quality standards. Farther, enforce-
ment conference summaries (section 10(d)(4)) are to include re-
ferences to any pollution caused, by Federal activities in the
conference axea. Thereafter, a copy of the sut^aary, notices ox
any hearing (section ].C(f)}, and subsecjv.ent findings concerning
such discharges are to be sent to the referenced Federal agencies.
Section 21(b) provides that, whenever a Federal license
is sought for the construction or operation of a facility which
may cause a discharge into the navigable waters of the United
States, both the State where the discharge originates and any
State which might be adversely affected shall have an opportunity
to determine that the proposed activity will not violate ap-
13S/
plicable water quality standards.
139/
The State of discharge origin'" can issue or deny a
\
certification that there is reasonable assurance that the ap-
plicant's activity will not: reduce water quality below applicable
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State staj,Jards. If State ccr cJ.ficcrLian is denied, the Federal
license or permit uay not be crunred.
A/t c:r EPA receiver, notification frc:,; the licensing 01 p<~-r~
laittinn c^cncy that a State cc/t ifi'u atiov. ha:, beer, granted, t" --.
Administrator is required to jo^vfy ci'-y .c-vates which he det."::--
rainos i^uy be affected by the c:, ilicc..":v'a discharc;^.* !%:..-
affected States have 60 days in which to r,cke objtcrions and t:>
requ.est t)iot the Federal licensing agency hold a public heu.c.l-'iq.
Based upon the affected State1s objections and the recommenda-
tions of record, the licensing agency ryusjt_ condition the license
or perKi.it so as to insure compliance with water quality stan-
dards. If such conditioning is impossible, the license or ]'-c-
rait may not be issued. EPA also reviews all State certifications
for Refuse Act perrr.it applications and can recor. -ur-nd either
that the permit be denied or that it be granted with the in-
141/
elusion of additional conditions.
State certification rr.ust be obtained for all Fo.deral License
and permit applications filed after the effective date of see-
142/
tion 21 (i.e.., April 3, 1970). Facilities under construc-cion
before that date, which thereafter require a Federal permit,
143 /
must obtain a State certification before April 3, 1973. if
a Federal license or permit was pending on the date of en&cr-
ment but was issued not more than one year later, a State certifi-
14A/
cation must be obtained within one year after issuance. In
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other wnrds, Q ---:--'lj^g license or p^-uit application may not
be grafted aflc-r April 3, 1971 withc-ut prior State certificcvJon.
Slid ion 21 distinguishes between penults and licenses
author j '/.inq corsct3rjct5.cn end those e'j.thorir.ing operation. A
State certif icotf on obtained. Qt thn construction etcge must b,;
rene\.'< c. for a Fec.c.iC.1 opero.tir>g j ic >:.•/. s;; or psrr3.it orily if ti-',,-
cert.i/yi?:g State notiiics rV-7 Au^inir-1.rotor that there is no
longor assurance that water quality standards will be met. The
lack of assurance racy be attributable to unforeseen changer, in
the construction ox operation of the facility, alterations in
receiving water quality, or airendnent oil the applicable v.-ater
quality standards. If no Federal operating license is necclod,
a State that certified construction of a facility nust be given
an opportunity by the licensing agency to review the anticipated
operation before start-up. If a violation of applicable v.'aier
quality standards is threatened, the State may request that the
licensing agency hold a public hearing to aeterrane whether
the outstanding license should be suspended until compliance
can be assured.
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The National Environmental Policy Act, enacted January 1,
19/0, creates a Council on K'iivi--"on..iintal Quality (hereinafter
C'JiQ) and enunciates c. notional policy for the environment.
Section lCi(c) proviu,.-,; "that i 'c is the continuing policy of
the Federal Governineivl ...to uso ell practicable means and
measures ...to create end maintain conditions under which man
and nature can exist in productive harmony...." In subsection
(b) Federal agencies are exhorted "to u&e all practicable means,.
consistent with other essential considerations of national
policy" to achieve the policy objectives of KEPA. Subsection
(c) contains tho Congressional recognition "that each person
should enjoy a healthful cnviion.;:int and that each perron has
a responsibility to contribute to the preservation and enhance-
ment of the environment.''
Section 102 requires Federal agencies to implement pro-
cedures for including environmental considerations in resource
decision raaking. To "the fullest extent possible," Federal
agencies are to interpret and administer their policies, reg-
ulations, and laws in a manner consistent with the policies of
NEFA, and .int^cj: alia, are to prepare a "detailed environmental
impact statement for all proposed i?ajor Federal actions signif-
icantly affecting the quality of the huiuan environment." These
section 102(2) (C) statements must describe: the unavoidable
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adverse environmental effectr; cf and the alternatives to tho
proponed action, the short and lon^-terra iit.pact of the pro-
ject., aiv.1 "any irreversib] t- end irretrievable conuaitmonts of
resources'1 that would result from iiv.Dleir.cnting the proposal.
Prior to drafting its de-toiled staterr>-n,t, the preparing agoncy
!Uii,-t so.'l icit the co/,i~ic-n !:s of other Federal agencies with ex~
.pertise nnd/or jurisdiction over any of the anticipated environ-
mental impacts.
The Environmental Quality Act of 1970 (Public Law 91-224)
added an Office of Environmental Quality to provide the CEQ
with administrative and professional support.
The CEQ has adopted guidelines for the implementation or
reguJ
147 /
1 A ft /
NEPA's requirements"^— and EPA has proposed regulations govern-
ing the preparation of its impact statements."
From the standpoint of Federal water pollution statutory
authority, the most important legal issue associated with NEPA
is the extent to which a State certification under §21(b) of
the FWPCA discharger, the licensing agency's duty to assess and
consider the water quality impact of its proposed action. This
issue was litigated for the first time in Calvert Cliffs'
IAS/
Coordinarinq Cornm. _v._ AEC" ~ v;here plaintiffs challenged a
rule adopted by the Commission which prohibited it from an under-
taking an independent examination of any water quality problem
associated with proposed nuclear power plants. Agreeing with
the challengers, the Court held that the Commission's rule
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did not comply with NZPA's iupcct statement require; ent.
We bc-lii i-ve the Ccrn'.i i.ssion' 5 rule is in fun-
dcjaentaJ conflict with the basic purpose of the
Act.
Certification, hy en ether agency that its own
enviror'n.:ntal rtcnclu': ;:.; are ;-,Vi isf iea involves
on entirely 0;.f it: rent ki'r.d oT jr.*:, '_.:-.ent . Fuch
agenci*1.?, \:Lfhc->ut o/^rc;ji r=rpori.:il.)il:lty ^c-r the
particular feilero.] c-. tlen in o>, i _ e t ion , o Lionel
only to or,o aspect of the probj.c:?.; the: iv> ''./jitud
of cert aii) cnvirc-nr.cn Lai coctn. They i:i~ oiy
determine v?hether -chose costs -^:.:caed on allow-
able Giaount. Their certification does not mean
that they found no environmental daaago what-
ever. In fact, there nay be significant en-
vironmental darr.age (e.g., water pollution), but
not quite enough to violate applicable (e.g.,
water quality) standards . Certifying ani-ncies
do not atteir.pt to w. ight that d.u'.age against the
opposing benefits. Ihus the balancing cnclysis
remains to be done. It may ba that the environ-
mental costs, though passing proscribed stan-
dards, ore nonetheless great enough to otrtv.sigh
the particular economic and technical benefits
involved in the planned action. The only agency
in a position to make such a juuq:nent is the
agency with overall responsibility for the pro-
posed federal action — the agency to which
NEPA is specifically directed, -j /n
The court noted that, by virtue of §21 (b) of the Fl/PCA, the
granting of an AEC license is contingent, but not mandatory, upon
the issuance of a State water quality certification, "It does
not preclude the Commission frc:n demanding water pollution con-
trols from its licensees which are norja .strict than those, de-
manded by the applicable water quality standards of the certi-
150/
.«n« ..I .. f
f y ing agency . ' '
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The court dealt at le..gth with the Coiunsission' s argument
that its rule comported with rvUPA's i ;-ction 104 which provides:
Nothing in r-vction 302 or 103 shall in any
way affect \h
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The sar.c legislative history arc _ir,.ent, advanced in behalf
153/
of the Corps of Engineers, ran acri,>u:.d in Ko?m- v. ^Resor^
Plaintiffs in this case challenged the validity of a Corps reg-
ulation which provider that, wheze the only anticipated impact
of a Refuse Act permit a- ,;licant's proposed discharge or de-
posit will be on water crur-lity, tnc Corps need not preporc a
c Ici4/
8l02(2)(C) statement.~~ Judge Robinson found no difference
between this regulation and the AT;C regulation held invalid,
for the purposes of NEPA, in Calvcr t jC3. ijf f a *_. Accordingly, the
Court enjoined the issuance of any Refuse Act permits until the
Corps' regulations are amended to require S102(2)(C) environ-
mental impact statements.
155/
Zabel v« TaKb— ^-s another decision involving NCI'A which
has had a significant impact on the Corps of Engineers' authority
to prevent and abate water pollution. Relying on both KEPA
156/
and the Fish and Wildlife Coordination Act, the Court held
that the Corps was authorized to deny a dredge-and-fill permit,
under section 10 of the Rivers and Harbors Act (33 U.S.C. §403),
on ecological grounds alone. The Court also relied on a 1933
I57/
Supreme Court case and a 1970 decision by the U.S. Court of
153/
Appeals for the Second Circuit as authority for the proposition
that the Corps has a duty to consider factors other than navigation.
In reaching its decision on the section 10 permit denial, the '
Court held preliminarily that, under the Corxusrce Clause, Con-
gress has the power to regulate the- use of privately owned sub-
159/
merged riparian property lor conservation purposes.
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This last half of the n-cmual discusses three najor topics.
The firr-'r section contains sugr;<":,tioris and advice which all
prospective v'irne,s.*:f='. shot i I'd rcc-cl thorOiVjhly before, they are
called to testify. In the nvconci elation, there is an exten-
sive discussion of a variety of considerations affecting the
acquisition and preservation of adir.issib.le evidence. The man-
ual concludes with a discussion of a nuraber of ccxcaon problc~r.
encountered before and during litigation.
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VII
The following .suggestions are r.iode for prospective
witnesses in order co lessen the fears and suspicions which '
almost everyone has v/neii h- first testifies either before
a board, commission , hearing officer, or in court. Even those
who have testified previously encounter a certain cnxiety
when they will be called iot a repeat performance. When a
witness is properly prepared, both with regard to the subject
matter of his testimony and his conduct on the witness stand,
he should not have any fear about testifying. The witness
must be thoroughly prepared as to the subject matter of his
testimony. He should also be instructed with regard to his
conduct as a witness. However, in order to asr-ict in the
latter instructions, the following sxiggestions are given with
a firm request that the witness read what follows several
times before he actually sits in the witness chair.
The witness will be required to take an oath to tell
nothing but the truth. The important point is to remember
that there are two ways to tell the truth — one is a
halting, stumbling, hesitant manner, which makes the board
member, hearing officer, judge or jury doubt that the witness
is telling all the facts in a truthful way, and the other is
in a confident straightforward manner, which inspires faith
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in what he is saying. It is IT.OJ.-C important that the witness
does his best to te.vtify in the latter manner. To assist in
testifying in such n>an;^r, a Id "t of time-proven hints arid
aids which, if followed, will j.,;^? ihe testimony much more
effective, are listed below.
''~ '-~Qn_stnir1:.ons_f o r a Witr. :• s
If yoi' are to be a witness in a case involving testimony
concerning the appearance of an object, place, condition, etc.,
try to refresh your recollection by again inspecting the ob-
ject, place or condition, etc., before the hearing or trial.
While making such inspection, close your eyes and try to pic-
ture the item and recall if you can the important points of
your testimony. Repeat the test until you have thoroughly
familiarized yourself with the features of your testimony that
will be given.
Before you testify, visit a court trial or board hearing
and listen to other witnesses testifying. This will make you
familiar with such surroundings and help you to understand
some of the "things you will come up against when you testify.
At least be present at the hearing of the natter in which you
are to testify in sufficient time to hear other witnesses
testify before you take the witness chair.
A good witness listens to the question and then answers
it calmly and directly in a sincere manner. He knows the facts
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and can conmunicate then. He testifies in this manner on
cross "examination as well as on direct examination.
Wear neat, clean cJothes when you are to testify. Dress
conservatively.
Do not chew gum while tect ifying or taking an oath. Sp-~ ok
clearly and do not rr.urvbl e . Of cour.;_,o, you will not be permitted
to smoke while testifing,
In a discussion on administrative procedures, E. Barrett
Pretty-man, Retired Chief Judge, U. S* Court of Appeals for the
District of Columbia, gave the following advice:
The best form of oral testimony is a series
of short, accurate, and complete statements
of fact. Again it is to ht* emphasized that
the testimony will be read by the finder of
the facts, and that he will" draw his find-
ings from what he reads . . . Confused, dis-
cursive, incomplete" statements of fact do
not yield satisfactory findings.
Stand upright when taking the oath. Pay attention and say
"I do" clearly. Do not slouch in the witness chair.
Do not memorize what you are going to say as a witness.
If you have prepared answers to possible questions, by all
means do not memorize such answers. It is, however, very im-
portant that you familiarize yourself as much as possible with
the facts about which you will be called upon to testify.
During your direct examination, you may elaborate and
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respond rcore fully than is advisable on cross-examination.
However, when you volunteer inforr.ation, do not raiable and
do not stray from the main point raised in your lawyer's
question. The taking of testimony is a dialogue, not a mono-
logue. If your testimony concerns a specialized technical
area, the Court or hearing board v;ill find it easier to uncler-
1 stand if it is presented in the form of short answers to a
logical progression of questions. In addirion, by letting
your lawyer control the direction of your testimony, you will
avoid making remarks which are legally objectionable or tac-
tically unwise.
Be serious at all times. Avoid laughing and talking about
the case in the halls, restrooms or any place in the building
where the hearing or trial is being held.
While testifying, talk to the board member, hearing of-
ficer or jury. Look at him or them most of the time, and speak
frankly and openly as you would to any friend or neighbor. Do
not cover your mouth with your hand. Speak clearly and loudly
enough so that anyone in the hearing room or courtroora can hear
you easily. At all tiuies make certain thar the reporter taking
the verbatim record of your testimony is able to hear you and
record what you actually say. The case will be decided en-
tirely on the words that are finally reported as having been
the testimony given at the hearing or trial. Always make sure
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that you give a complete statement in a complete sentence. Half
statements or incomplete cc-ntcnc-jo tr,ay convey your thought in
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the context of the hearing, but ray be unintelligible when read
from the cold record r-.any nontbs Ictor.
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• Always be polite, even to the attorney for the opposing
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Concerning crop^.-crcninatior:, Juuc-c- rretryruan giv^s the
following advice to pror.pectivf: vitmcsser.:
Don't argue. Don't fence, Don't gxiess.
Don't make \/.i secrucks. Don't tcke sides.
Don't ger irritated. Think first, then
speak. If you do not know the answer to
a question, say so. If you do not kno\-j
the answer but have an opinion or belief
:) on the subject based on information, say
exactly that and let the h-.-.aring officer
decide whether you shall or shall not give
such information as you have, If a 'yes or
no' answer to a question is deiaanded but
you think that a cjualif ication should be
made to any such answer, c-,ive the 'yes or
no1 and at once request permission to ex-
plain your answer. Don't worry about the
effect an answer may have. Don't worry
about being bulldozed or embarrassed;
counsel will protect you. If you know
the answer to a question, state it as pre-
cisely aiid succinctly as you can. The
best protection against extensive cross-
examination is to be brief, absolutely
accurate, and entirely calm.
The hearing officer, board member or jury wants only the
facts, not hearsay, conclusions, or opinions. You usually
will not be allowed to testify about what someone else has
told you.
party.
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Do not be a smart aleck or cocky witness. This will lose
you the respect and objectivity of the trier of the facts in
the case.
Do not exaggerate or o.iJ-jrolder your testimony.
Stop instantly when the judge, hearing officer or board
member interrupts, or when the other attorney objects to what
you say. Do not try to sneak your answer in.
Do not nod your head for a "yes" or "no" answer. Speak
out clearly. The reporter must hear an answer to record it.
If the question is about distances or time and your an-
swer is only an estimate, be certain that you say it is only an
estimate.
Listen carefully to the questions asked of you. No mat-
ter how nice the other attorney may seem on cross-examination,
he may be trying to hurt you as a witness. Understand the
question. Have it repeated if necessary; then give a thought-
ful, considered answer. Do not give a snap answer without
thinking. You cannot be rushed into answering, although, of
course, it would look bad to take so much time on each ques-
tion that the board member, hearing officer or jury would think
that you are making up the answers.
Answer the question that is asked -- not the question that
you think the examiner (particularly the cross-examiner) intended '
to ask. The printed record shows only the question asked, not
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what was in the examiner's mind and a nonresponsive answer
may be very detrimental TO your side's case. This situation
exists when the witness thinks "I know v:hat he is after but
he hasn't asked for it." Answer only what is asked.
Explain your-answers if necessary. This is better than
a simple "yes" or "no." Give on answer in your own words.
If a question cannot be answered truthfully with a "yes" or
"no" you have a right to explain the answer,
Answer directly and simply the question asked you and
then stop. Never volunteer information.
If by chance your answer was wrong, correct it immediately;
if your answer was not clear, clarify it immediately.
You are sworn to tell the truth. Tell it. Every material
truth should be readily admitted, even if not to the advantage
of the party for whom you are testifying. Do not stop to fig-
ure out whether your answer will help or hurt your side. Just
answer the question to the best of your ability.
Give positive, definite answers when at all possible.
Avoid saying "I think", "I believe", "in my opinion." If you
do not know, say so. Do not make up an answer. You can be
positive about the important things which you naturally would
remember. If asked about little details which a person
naturally would not remember it is best to say that you do not
remember, but do not let the cross-examiner place you in the
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trap of answering question after question with "I don't know."
Do not act nervous. Avoid icarinorit-ias which will rooke it
appear that you are scared, or not telling the, truth, or all
that you know.
Above all, it i& ULOOT iir.portant that you do not lose your
temper. Testifying at 3ength is tiring. It causes fatigue.
You will recognize fatigue by certain syr-ytoias: (a) tiredness,
(b) crossness, (c) nervousness; (a) anger, (e) careless answers,
(f) willingness to say anything or answer criy question in order
to leave the witness stand. When you feel thene symptoms,
recognize them and strive to overcome fatigue. Reinenber that
soiae attorneys on cross-examination are trying to wear you out
so you will lose your temper and say things that are not cor-
rect, or that will hurt you or your testimony. Do not let
this happen.
If you do not want to answer a question, do not ask the
judge, hearing officer or board member whether you must an-
swer it. If it is an improper question, your attorney will ob-
ject for you. Do not ask the presiding officer, judge or
board meisber for advice.
Do not look at your attorney or at the judge, hearing
officer or board member for help in answering a question. You
are on your own. If the question is an improper one, your
attorney will object. If the judge, hearing officer or board
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meraber then says to answer it, do so.
Do not hedge or argue with the opposing attorney.
There are several questions which are known as "trick
questions." That is, if you ansv.'cr them the way the opposing
attorney hopes you,, will, he can r.ake your answer sound bad.
Here are two of thc-::i:
"Have you talked to anybody about this natter?" If you
say "no," the hearing officer or board nctaber, or a seasoned
jury, will know that is not right because good lawyers always
talk to the witnesses before they testify. If you nay "y@s,"
the lawyer may try to infer that you were told what to say.
The best thing to say is that you have talked to Mr. __
your lawyer, to the appellant, etc., and that you vrere just
asked what the facts were. All we want you to do is simply
tell the truth.
"Are you getting paid to testify in this appeal?" The
lawyer asking this hopes your answer will be "yes," thereby
inferring that you are being paid to say what your si.de wants
you to say, Your answer should be something like "No, I am
not getting paid to testify; I am only getting compensation for
my time off from work, and the expense it is costing me to be
here." A witness should never be paid a contingency fee as it
indicates strongly that since his compensation depends upon
the results, he will b«s inclined to overstate the case.
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VIII
Ga tjh er j_ r:'-_ r •: \ Prest • r y i rifi Eviden ce
in Water rdiu-ior: bn:.- \-c-. ~\ent Actions.
In every water pollution suit, expert testimony will be
of primary importance. To meet its burden of proof, the Govern-
ment nay have to adduce expert testimony on scirpling, laboratory
analyses and test results, ar.d the* hc.rraful effects attributable
to the defendant's discharge. If the Govexniaent' s expert wit-
nesses do not testify effectively, th® lav/suit nay be jeop-
ardized.
Te st i m_gny__qn__saropl i ng.
In the order of proof in a trial concerning pollution thsre
will be testimony by witnesses who have taken sasples. The
samples may consist of wafer from the defeiiuani.! s effluent and
the receiving water, as well as of living or dead aquatic plant
and animal species. These witnesses will explain how, where,
and when the samples were taken. The choice of sampling loca-
tion and of what to. sample for depends to a large extent on
the type of legal action contemplated.
«
Refu_se__Ac_t.
In/any Refuse Act case the Government must prove two basic
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elements: (1) that the defendant discharged refuse without a
permit, and (2) that the refuse reached a navigable waterway.
These elements mus-t be proved by a preponderance of the evidence
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in a civil suit and beyond a reasonable doubt in a criminal
prosecution,
To show that refuse discharged to a non-navigable tribu-
tary reached navigable waters, waxcr samples may be taken,
when necessary, at the following points:
1. upstream from the point of discharge on
the non-navigable -tributary;
2. at the point of discharge, either after
written notification or after ©btaining the
defendant's voluntary consent to the sampling;
3. downstream from the point of discharge after
a reasonable mixing zone on the non-navigable
tributary;
4. upstream on the navigable water from the
confluence of the non-navigable and navigable
waters; and
5. downstream on the ndvigable water after a
reasonable mixing zone from the confluence of
the non-navigable and navigable waters.
In cases where refuse is discharged directly into navigable
waters, the Government may be able to meet both burdens of proof
by adducing eyewitness testimony and by introducing photographs
and/or effluent data into evidence. To obtain civil relief under
the Refuse Act, the Government also must put on proof of the
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harmful effects caused by the defendant's discharge.
Federal V-'ater cxl lution Ccm
a • Section 10 (c ) - _Wp ter Quality Standards Violations
To establish a water quality standard violation, it is
necessary to prove that the quality of an interstate water-
way is reduced below Federally ooprove-d water quality stan-
dards. Water quality criteria specify permissible levels
of chemical and biological constitutents for receiving
waters. It must be demonstrated that the defendant's dis-
charge caused or contributed to a reduction in receiving
water quality below one or sore applicable standards. In
cases of direct discharges to interstate waters, samples
may be taken whenever feasible at the following points;
1. upstream of the discharge;
2. at the point of discharge, either after writ-
ten notification or after obtaining the defendant's
voluntary consent to the sampling;
3. downstream of the discharge at a point after
a reasonable mixing zone; and
4. in an adjacent State demonstrating that its
water quality standards are violated by the dis-
charge from the originating State. (Sampling at
this location is not necessary if the written
consent of the Governor of the State from which
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the discharge originates can be obtained.)
In cases of indirect discharges to tributaries of inter-
state waters, the following sampling locations are recom-
mended:
1. upstream of the discharge on the tributary
of the interstate water;
2. at the point of discharge, either after writ-
ten notification or after obtaining the defendant's
voluntary consent to the sampling;
3. downstream of the discharge on the tributary
after a reasonable mixing zone;
4. on the interstate water upstream of the con-
fluence of the interstate water and its tributary;
5. on the interstate water downstream of the con-
fluence of the interstate water and its tributary;
and
6. downstream on the interstate waterway in an
adjacent State demonstrating that the water quality
standards are violated by the discharge from the
originating State. (Sampling at this location is
not necessary if the written consent of the Governor
of the State from which the discharge originates
can be obtained.)
Although all State water quality standards include criteria
for the same basic parameters, there are significant differences
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among the States as to the sampling and test procedures which
must be followed in order to establish a standards violation.
A few exaraples are useful:
Massachusetts' dissolved oxygen criteria for warm water
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fisheries provides that a minimum level of 5 mg/1 be main-
tained 16 hours per day and that the level should not go below
3 mg/1 at any time. Thus a violation can be established either
by showing that, for more than eight hours in one day, the dis-
solved oxygen level was less than 5 mg/1, or by showing that on
one occasion there was less that 3 mg/1 of dissolved oxygen.
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Michigan's dissolved oxygen standard for warm water fisheries"
provides minimum levels for tolerant and intolerant species of
fish which must be maintained at all times. A single grab sam-
ple would be sufficient to establish a violation of Michigan's
standard.
To establish a violation of Indiana's coliform criteria for
recreational waters, the only test that can be used is the mem-
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brane filter method (MF); in Ohio both the membrane filter
method and the most probable number method (MPN) can be used to
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establish a violation of the coliform criteria.
It is imperative that only the testing method specified be
used to show that a particular State water quality standard has
been violated.
Sampling Plan and Methodology.
Attorneys should inform EPA's technical personnel of the
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sampling evidence needed to meet the legal requirements of a
given case. Together they must formulate a plan as to where,
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when and by whom samples are to be taken. The plan must
also reflect judgments concerning what biological and chemical
tests are to be run/ where the analyses are to be performed,
and how much equipment is required.
Careful consideration should be given to all aspects of
a case prior to the formulation of a final plan. For example,
seasonal variations in water temperature, flows and breeding
habits of aquatic life would be important factors in deciding
when to schedule studies of thermal pollution.
Sample collection procedures ar« outlined in American
Public Health Association et^ al^, Standard Methods for the
Examination of Water and Wastevater (13th ed. 1971): streams
(pp. 34-36), effluents (pp. 367-368), radioactivity examin-
ation (pp. 584-585), bacteriological examination (pp. 657-660),
and biological sampling (pp. 726-729). More detailed pro-
cedures are described in U.S. Department of the Interior, A
Practical Guide to Water Quality Studies of Streams, (1969).
Constitutional Protections.
Sample evidence taken from the defendant's (individual or
corporate) property without his consent cannot be introduced
into evidence in either a civil or a criminal case because of
the Fourth Amendment guarantee against unreasonable searches
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and seizures. Consent need not be obtained to take samples on
the public portions of a waterway, usually up to the ordinary
high water level.Almost all Fourth Amendment objections
can be prevented by sending an advance, written notification of
the time, scope, and purpose of any proposed EPA inspection or
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sampling visit, and by obtaining the written consent of
•che party to be inspected. If a search warrant has not been
obtained, unannounced investigatory inspections may be aade only
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if the voluntary consent of a person in authority is secured.
Chain of Custody Procedures.
As in any other litigation, the Government must be able to
prove the chain of possession and custody of any samples which
are offered for evidence or which form the basis of analytical
test results introduced into evidence in any water pollution
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case. It is imperative that each Regional Office and lab-
oratory prepare written procedures to be followed whenever
evidence samples are collected, transferred, stored, analyzed,
or destroyed. The primary objective of these procedures is to
create an accurate written record which can be used to trace
the possession of the sample from the moment of its collection
through itc introduction into evidence.
A sample is in someone's "custody" if:
1. It is in his actual physical possession, or
2. It is in his view, after being in his physical
possession, or
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3. It was in his physical possession and he
locked it up so that no one could tamper with it.
Survey Planning and Preparation.
The evidence gathering portion of a survey should be charact-
erized by the absolute minimum number of samples required to give
a fair representation of the effluent or water body from which
they are taken. The quantity of samples and sample locations,
determined prior to the survey, must satisfy the requirements
needed to establish a civil or criminal Refuse Act violation or
a water quality standards violation.
Chain of custody record tags should be prepared in advance
and should contain as much infonrsation as possible to siin^-Bize
clerical work by field personnel. The pre-recorded information
should include the source of each sample on the individual con-
tainers. Field log sheets also should be pre-filled as much as
possible.
A copy of the study plan should be distributed to all sur-
vey participants well in advance of the survey date. A pre-
survey briefing should be held to reappraise all participants
of the survey objectives, sample locations and chain of custody
procedures. After all evidence samples are collected, a de-
briefing should be held in the field to verify that chain of
custody procedures were followed strictly for each sample and,
if not, whether additional samples should be collected.
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Sarapl e_Co 11 oct ion.
1. As few people as possible should handle the sample.
2. Stream and effluent samples should be obtained by using
standard field sampling techniques.
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3. The chain of custody record tagshould be attached
to the sample container at the time the sample is collected and
should contain the following information: sample number, date
and time taken, source of sample (include type of »a»ple end
name of firm), the preservative and analyses required, name of
person taking sample and witnesses. The pre-filled aide of the
card should be signed, timed and dated by the person sampling.
The sample container should then be sealed with a preprinted,
gummed seal containing the Agency's designation, d*t« and sam-
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pier's signature. The seal should cover the string or wire
tie of the chain of custody tag so that the tag c«nnot be re-
moved and the container cannot be opened without breaking the
seal. The tags and seals must be filled out legibly in ball-
point (waterproof ink).
4. Blank samples should be collected in containers with
and without preservatives so that laboratory analyses can be
performed to show that there was no container contamination.
5.^ A bound field notebook, or log, should.be used to re-
cord field measurements and other pertinent information necessary
to refresh the sampler's memory in the event he later becomes a
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witness in an enforcement proceeding. A separate set of field
notebooks should be maintained for each survey and stored in a
safe place where they can be protected and accounted for at
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all times. A standard format should be established to mini-
mize field entries- and should include the date, time, survey,
type of samples taken, volume of each sample, type of analysis,
sample numbers, preservatives, sample location, field measure-
ments such as.temperature, conductivity, DO, pH, and any other
pertinent information or observations. The entries should then
be signed by the field sampler. The responsibility for pre-
paring and retaining field notebooks during and after the survey
should be assigned to a survey coosd^pator, or his designated
representative.
6. The field sampler is responsible for the care and custody
of the samples collected until properly dispatched to the re-
ceiving laboratory or turned over to an assigned custodian. He
must assure that each container is in his physical possession or
in his view at all times, or stored in a locked place where no
one can tamper with it.
7. Color slides or photographs should be taken of the out-
fall sample location and any visible water pollution. Written
documentation on the back of the photo should include the sig-
nature of the photographer/ time, date, and site location. Photo-
graphs of this nature, which may be used as evidence, should be
handled according to the established chain of custody procedures.
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1. When transferring the possession of samples, the trans-
feree must sign and record the date and time on the chain of
custody record tag. Custody transfers, if made to a sample
custodian in the field, should be recorded for each individual
sample. Every person who takes custody must fill in a stan-
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dardized "Receipt of Sample" form.To prevent undue pro-
liferation of custody cards, the number of custodians in the
chain of possession should be as few as possible.
2. The field custodian or field sampler, if a custodian
has not been assigned, is responsible for properly packaging
and dispatching samples to the appropriate laboratory for
analysis. This responsibility includes filling out, dating, and
signing the "Dispatch of Sample" portion of the chain of custody
record tag.
3. Samples must be properly packed to avoid breakage. Pre-
printed gummed seals should be utilized to seal the package so
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that tampering can be detected.
4. All packages should be accompanied by a sample trans-
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mittal form identifying the contents. The original of the
completed form and one copy should accompany the shipment, one
copy should be delivered directly to the laboratory and to Data
Management, and a copy should be retained by the survey coordinator,
5. Mailed packages should be registered with return re-
ceipt requested. If pacKage^ are sent by common carrier, a
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Government Bill of Lading should be obtained. Receipts from
post offices, end bills of lading or other common carrier re-
ceipts should be sent to and retained, by the laboratory
custodians as part.of the permanent chain of custody documen-
tation.
6. If samples are delivered to the laboratory when appro-
priate personnel are not there to receive them, the samples
must be locked in a designated area within the laboratory so
that no one can tamper with them. The person who received and
locked the samples should be the one who later delivers custody
to the appropriate custodian.
Lobe rate—•-• Cu stody Procedures.
1. The laboratory should designate two full-time employees
as a "sample custodian" and as an alternate. In addition/ the
laboratory should designate a clean, dry, isolated room that
can be securely locked from the outside as a "sample storage
security area." The sample custodian must maintain a permanent
log book in which he records, for each sample, the person de-
livering the sample, the person receiving the sample, date and
tine received, source of sample, sample number, how transmitted
to lab, and a number assigned to each sample by the laboratory.
A standardized format should be established for log book entries.
2. All samples should be handled by the minimum possible
number of persons.
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3. All incoming samples should be received only by the
custodian, who shall indicate receipt by signing the accompanying
sample transmittal ferns and who shall retain the signed forms
as permanent records.
4. Immediately upon receipt, the custodian should affix
a number to the attached Tag, record the required information in
the log book and place the sample in the sample room. The sam-
ple room should be unlocked only when the custodian enters to
remove or replace samples.
5. The custodian shall ensure that heat-sensitive or light-
sensitive samples, or other sample materials having unusual
physical characteristics, or requiring special handling, are
properly stored and maintained.
6. Distribution of samples to laboratory personnel who
are to perform analyses should be made only by the custodian.
The custodian should enter into the log the laboratory sample
number, time and date, and the signature of the person to whom
the samples were given.
7. Laboratory personnel should examine the seal on the
container prior to opening and should be prepared to testify
that their examination of the container indicated that it had
not been tampered with or opened.
8. The analyst must record in his leg book the name of
the person from who:., the sample was received, whether it was
sealed, identifying information describing the sample (by origin
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and sample identification number), the procedures performed and
the results of the testing- Ha should sign and date his notes
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and retain them as a permanent laboratory record.
9. Whenever possible, the procedures in Standard Methods
for laboratory analyses Should be used. Laboratory personnel
should be prepared to justify any deviations from standard pro-
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cedures during cross-exaiaination.
10. Laboratory personnel are responsible for the care and
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custody of the sample once it is handed over to them and should
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be prepared to testify ti,iat the sarople was in their possession
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and view or securely locked up at all times from the moment it
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was received from the cujstodian until the tests were run.
11. Once the sample testing is completed, the unused por-
tion of the sample, together with all identifying tags and
seals, should be returned to the custodian who will make appro-
priate entries in his log. The returned tagged sample should
be retained in the sample room until it is required for trial.
Strip charts and other testing documentation also should be
turned over to the custodian.
12. Samples, tags, and laboratory records of tests should
be destroyed only upon the order of the laboratory director, in
consultation with previously designated Regional officials.
Reducing chain of custody procedures as well as the various
laboratory analytical procedures to writing will facilitate the
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admission of evidence under the Federal Business Records Act.
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1
Under this statute, written records made in the regular course
of any business may be introduced into evidence without the
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testimony of the person(s) who made the record. Although
preferable, it is not always possible to have the individuals
who collected, kept, and analyzed samples testify in court. In
addition, if the opposing party does not intend to contest the
integrity of the sample or testing evidence, admission under
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the Business Records Act can save a great deal of trial time.
For these reasons, it is important that the procedures followed
in evidence sample collections and analyses be standardized and
described in an instruction manual which, if need be, can be
offered as evidence of the "regular course" followed by the
particular EPA lab or Regional Office in generating any given
record.
Testimony on the Results of Laboratory Analyses and Tests
General
After testimony on sampling procedures is adduced, a wit-
ness will provide testimony concerning sample analyses and test
results. The witness must be able to testify that the test or
procedure employed has universal acceptance in the "appropriate
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scientxric field. The procedures outlined in Standard
Methods are, with few exceptions, recognized and accepted in
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the field of sanitary engineering. In Armco, sample test
results obtained by following Standard Methods procedures were
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always admitted into evidence. Deviations from Standard Methods
had to be explained and justified.
Standard Methods describes "standard" and/or "tentative"
procedures for sampling and conducting physical, biological and
chemical tests of 'receiving waters and effluents. The editors
of the Thirteenth Edition of Standard Methods distinguish "stan-
dard" and "tentative" methods in the following manner:
As in its predecessor, all methods in
the Thirteenth Edition are "standard" un-
less designated "tentative"; no other
categories are employed. Methods with
"standard" status have been extensively
studied and accepted as applicable within
the limits of sensitivity, precision and
accuracy recorded. "Tentative" methods
are those still under investigation which
have not yet been fully evaluated or are
not considered sufficiently specific at
present to be designated "standard".
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Between published editions of Standard Methods, a method
designated "standard" may not be abandoned or reduced to
"tentative" status even though discredited during the interval.
However, a "tentative" method may be elevated to "standard"
status and new "tentative" or "standard" methods may be adopted
after notice and publication in the journal(s) of (one of) the
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three associations sponsoring Standard Methods.
Quite frequently more than one "standard" and/or "tentative"
method is provided for the same parameter. In such cases, each
method is evaluated on the basis of its precision, time and
equipment required, and suitability for various uses.
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Automatic Vfater Chiality Monitoring Devices.
A party offering surveillance data from automatic water
quality monitoring devices must establish that the evidence
produced by the particular instrument is competent. This bur-
den can be mer by proving the following:
(1) the type of apparatus must be accepted
as dependable for the purpose for which it
has been used by the profession concerned
in that branch of science or art; (2) the
particular apparatus used must be one con-
structed according to en accepted type and
must be in good condition for accurate work;
and (3) the person using the apparatus must be
qualified by training and experience for its
USe'l82/
There are two basic types of automatic water quality moni-
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toring devices: (1) electrophysical and electrochemical and
(2) wet chemistry analyzers. The first type, which is the most
commonly used, can detect and measure chloide ions, fluoride
ions, pH, dissolved oxygen, conductivity, and temperature. This
type of device can be operated from insitu platforms and buoys;
both types can be operated from shore stations.
a) Sho_re_ Stations
The main advantage of the shore station location
is that the water quality sensing instruments and re-
cording equipment are protected from vandals and from
the elements. On the average, a shore station monitor
requires maintenance only every 5 to 10 days to produce
acceptable data 90 percent of the time. The electronic
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components require calibration approximately once
a month. The main Disadvantage of shore stations
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is high capital and 'operating costs. The fouling
of pipes, valves, and sensors by suspended matter
in the water is the Inmost serious operational pro-
blem. '''
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b) Insitu Monitoring
Automated insitu water quality monitoring is
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used primarily in studies which do not last more
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than several monthsT Sensors are fixed in a metal
basket-like container which either rests on the
stream bed or is suspended in the water. The major
advantages of the ihsitu monitoring over shore
monitoring are that it'is possible to monitor far
from the shore and to develop vertical profiles.
Also, since little or no pumping is required, power
requirements are minimal. However, insitu monitoring
has several disadvantages. Sensors foul easily be-
cause, unlike the shore station sensors (to which
water is pumped at a constant rate), the rate and
direction of the flow of. water past insitu sensors
varies. Insitu sensors require frequent mainten-
ance and, at great depths, operational problems fre-
quently arise.
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c ) !l£H4-lL£,r"'- nq_ from, q Buoy.
Buoys are Invaluable for monitoring lakes and
estuaries, or wherever profile data is desired. The
ir.ajor problems cssociated with the buoy are servicing,
fouling and corrosion, instability of the buoy struc-
ture, difficulty of installation, power requirements,
ice and vandalism.
The wet chemical analyzer operates by continuously pumping
specific reagents to water samples. The color intensity of the
resulting reaction is measured automatically by a colorimeter.
The Technicon Corporation's monitor, the most widely used
automatic wet chemistry analyzer, measures simultaneously up
to six of the following standard parameters: ammonia, nitrate,
nitrite, total inorganic phosphate, cheiuical oxygen demand,
chloride, fluoride, silicate, chroiimoia, copper, iron, raythal
orange alkalinity, thymol blue, hardness, sulfate, phenol,
cyanide, and color. Problems associated with wet chemical an-
alyzers include tubing slippages and failures, pump breakdowns,
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frequent valve clogging, and the need for frequent calibration
and maintenance.
Expert witnesses who intend to acquire or analyze data
froiia automatic water quality monitoring devices must be familiar
with the strengths and weaknesses of the instrument used.
When gathering evidence for trial, the survey coordinator should
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take all possible precautions to overcome the instrument ' s re-
cognized deficiencies.
Reports.
Attorneys should caution technical personnel not to state
legal opinions or conclusions in their reports on sampling and
in their reports of analytical test results. For example, an
observation such as "I saw refuse being discharged from the ABC
Company's plant into navigable Poison Creek and causing immediate
and irreparable harm" should not be made in a written record
prepared by an EPA scientist. Both sampling and testing reports
should be prepared according to a standard format which requires
clarity, precision, conciseness, and coisrsleteness.
Testimony on Harmful Effects.
To obtain injunctive relief under the Federal Water Pol-
lution Control Act and under the Refuse Act, the Government
must prove that the defendant's discharge is causing or will
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cause harm.- - Expert testimony on the issue of harm must be
based, in part, on the sampling and test data introduced into
evidence earlier in the trial.
Harm resulting from water pollution includes, but is not
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limited to: (1) injury or death to aquatic plants and animals;
(2) hazards to human health such as unsafe drinking water
,. 1877
supplies and swimming areas; (3) injury or death to
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wildlife and livestock; and (4) the creation of eyesores and
unpleasant odors. Some types of harm caused by water
JL89/
pollution can be measured in monetary terns. For example,
during the Galveston Bay Enforcement Conference there was
testimony about the calculated value of the shellfish which
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could have been marketed in the absence of pollution.
Although difficult, it is also possible to assess the economic
harm of water pollution in terms of (1) a diminution in
riparian property values, (2) the costs of securing water from
alternative sources, (3) the costs of treating water prior to
industrial or municipal use, (4) expenses associated with the
replacement of corroded structures, and (5) the market value
of fish, shellfish, wildlife, ar.d livestock killed or con-
taminated by pollutants,
Occasionally, a court requires that an expert witness1
opinion be based on studies and tests personally conducted by
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him. It should be pointed out, however, that there exists
no firm rule of evidence in this regard. Experts are frequently
permitted to offer testimony, in their area of competence, based
on someone else's work. Such testimony can be adduced through
the use of hypothetical questions/ any objections would go to
the weight of the expert's testimony rather than to the witness1
competency. To protect against the exclusion of such evidence,
the local U. S. Attorney should be consulted to determine the
rule generally followed by the local courts.
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IX
Litigation Problems
This section of the manual is designed to acquaint
the reader with some of the most coranonly recurring pro-
blems in environmental litigation. The problem areas
flagged in this discussion must be resolved according to
the needs and circumstances of each individual case.
Housekeeping
Housekeeping or administrative considerations are extremely
important to the smooth functioning of an enforcement program.
All Regional Offices and Laboratories should maintain an orderly
and complete filing system which includes minutes of meetings,
memoranda/ and trip reports. Minutes should be made for all
intra and interagency meetings where important decisions are
made concerning litigation strategy or technical requirements.
After every trip, a report should be prepared which describes
the traveller's accomplishments and problems.
If negotiating sessions are held before or during litigation,
be sure to file a brief, concise memorandum describing the sub-
stance of each meeting. Such a memorandum should include the
names of the participants and the principal points or positions
advanced by the parties. This procedure frequently eliminates
misunderstandings down the line.
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Whenever the Agency is a party to any litigation, it will
be subject, under the Federal Rules cf Civil Procedure, to pre-
trial discovery. The Agency will be required to answer the
opposing party's interrogatories arid, in addition, will be re-
quired to produce requested documents. Technical personnel
who are asked TO respond to a motion to produce Agency docu-
ments, should deliver all related documents in their possession
to the EPA attorney handling the case. Do not withhold any
documents merely because they are damaging to the Government's
case. The responsible Agency and Department of Justice attor-
neys will determine, on the basis of the law of discovery, which
documents must be submitted to the opposing party.
Set up a sensible filing system and see to it that the
system is followed. The objective of a filing system is to
store information in such a way that a person who needs to know
the current status of a case can ascertain it quickly and with-
out unnecessary searching. Information kept in your head and
not reflected in the file is of no use to anyone but yourself,
and you will not always be available when the information is
needed.
Relief.
Before filing a civil water pollution suit, it is advisable
to have the terms of the relief developed well enough to be
specified in some detail in the conplaint. In almost all civil
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Refuse Act corrplcints to date, the prayer for relief has been
cast in very general terns, e.g.:
WHEPZrcr..Z, The United States of America prays:
(a) That the Court order the defendant ...
to abate the pollution from the discharge of
industrial wastes and other refuse matter into
the navigable waters of Lake Disaster, within
such tine end upon such schedule as the Court
deems to be reasonable and proper; or
(b) That the Court grant such other relief
as the Court may deem just and proper....
A general relief provision must be used, of course, when there
are no or very few technically feasible solutions apparent at
the outset of the litigation. The technical solutions in most
cases, however, are obvious; the only issues are how quickly
the defendant can implement them and the quality of the effluent
the defendant will be able to maintain after implementation.
Whenever possible, these issues should be resolved before the
lawsuit is initiated and the basic terms of the resolution should
be incorporated in the complaint's prayer for relief.
There are a number of identifiable advantages to a prayer
for relief which, within the limits of tactical flexibility, is
specific rather than general. First, the parties and the Court
have a clear idea of what the Government wants the defendant to
do. For the defendant willing to negotiate a settlement, a
specific relief paragraph provides him with a benchmark from
which he can project the scope and extent of concessions the
Government might be willing to make in order to avoid a trial.
Finally, a specific prayer focuses the litigation on a defined
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objective; the factual and legal issues are narrowed with the
result that it is easier for the Court to make rulings and to
decide the case.
Causation.
The law of causation must be considered in cases brought
under the two Federal water pollution control statutes. The
Refuse Act provides, in pertinent part, that it is unlawful to
"cause, suffer or procure to be thrown, discharged, or deposited
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...refuse matter...." Similarly, section 10 of the FWPCA
makes those discharges ''causing or contributing" to pollution
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or to water quality standards violations "subject to abatement".
Finally, section 11 of the FWPCA exonerates the owner or operator
of a vessel or onshore or offshore facility from liability for
the discharge of oil where he can prove...
...that such discharge of oil was caused solely
by an act or onission of a third party, or was
caused solely by such an act or omission in com-
bination with an act of God, an act of war, or
negligence on the part of the United States
Government...,„, /
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Causation has been an issue in only two criminal Refuse
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Act cases. In United States v. Georgetown University, the
court held that the defendant was not criminally liable under
the Refuse Act because there was no evidence that the University
had caused the illegal discharge of No. 6 fuel oil to the Potomac
River. The court found that the oil spill was the result of the
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act of an independent contractor defendant had retained to de-
sign, construct and test a heating and cooling plant for the
University. In doing so, the court ' observed:
The Court is fully aware that the purpose of
the relevant statutes in the case at bar is
to minimize possible injury to persons and
property. Accordingly, specific intent to
violate them is not required. The Court be-
lieves there can be no violation unless the
defendant is in a position to prevent such
damage. There can and should not be any in-
dictment where, as here, the laudatory pur-
pose of a strict liability statxite and the
public policy is not served by charging a
university with a criitiinal offense under cir-
cumstances where they did everything a rea- •
sonably prudent person could have or might
reasonably be expected to have done.
. . .when one is not in control of facilities
which lead to a violation of statutes like
those in the case at bar, the ultimate re-
sult or damage to persons or property should
be examined in light of the Congressional
policy to impose strict liability upon only
those corporations or individuals who have it
peculiarly within their power through the
exercise of due diligence to protect the pub-
lic. (Emphasis added. )
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The element of control explains the difference in result in
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United States v. Federated Home, Inc. The corporate defen-
dant in that case had purchased property on which the previous
owner had accumulated a considerable quantity of wooden debris.
After the purchase, some of this debris got into an adjacent
navigable waterway. The Court held that the defendant was crim-
inally liable under the Refuse Act for suffering the debris to
be deposited. The ground for this decision was that the defendant
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could neve but did not take steps to remove or store the debris
in a secure manner. On '>the basis of this decision, Tripp and
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Hall conclude that "bothj misfeasance and nonfeasance fall within
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the definition of 'suffer to be deposited.1""
One causation issue1"/ which has not been discussed in any
reported case, is the test that is to be applied in determining
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responsibility for the harmful effects caused by the discharge
of waterborne wastes. When the question does arise, the Agency's
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most advantageous position would be that the substantial contri-
bution test is applicable. Under this test, civil injunctive
relief would be available against a person whose discharge contri-
butes substantially to tfhe cumulative harmful effects caused by
numerous pollution sources. A less satisfactory but still ac-
ceptable position the Agency could take is that, for purposes of
civil liability, the "but for" test should be used in water pol-
lution lawsuits. This test could be applied successfully in cases
where it can be proved that, but for the defendant's discharge,
certain actual or threatened harmful effects would not have
occurred.
Discovery Under the Federal Rules of Civil Procedure.
With the exceptions of Rules 27 and 28, the discovery pro-
visions of the Federal Rules of Civil Procedure were extensively
revised by the Supreme Court on March 30, 1970. Explanatory
comments by the Advisory Corr-mittee that drafted the amendments
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ere published in >!r-rre' s Fecy-rc.l.Practice Rules Par.ohlet (1971).
Rule 26(b)(l) provides that "parties may obtain discovery
regarding any matter not privileged, which is relevant to the sub-
ject matter involved in the pending action...." Thus, the
threshold question in any discovery request is whether the mat-
ter sought is both relevant and not privileged.
Under Rule 26(b)(l) a party may inquire during discovery
about "the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things."
The documents end things about which such information is sought
need not be relevant and unprivileged. If such items are either
irrelevant or privileged, further discovery, e.g., production,
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could be denied. The general scope provision of Rule 26(b)(l)
also permits a party to discover "the identity and location of
persons having knowledge of any discoverable matter." Further-
more, discovery is not to be denied on the ground that "the in-
formation sought will be inadmissible at the trial if the in-
formation sought appears reasonably calculated to lead to the
discovery of admissible evidence."
Trade Secrets and Confidential Information.
According to Professor Moore,
"no absolute privilege protects trade secrets
from disclosure through the discovery process.
If the information sought is relevant and
necessary at the discovery stage of the liti-
gation to the preparation of the case of the
applicant therefor, disclosure will be required.
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However, the courts are loath to order dis-
closure of trade secrets absent a clear
showing of an irr^iediate need for the infor-
mation, recruested.
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The classic definition of trade secret is "an unpatented, secret,
commercially valuable plan, appliance, formula, or process,
which is used for the making, preparing, compounding, treating,
or processing of articles or materials which are trade com-
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modities."
Trade secrets are protected by a qualified privilege against
unnecessary disclosure. The court, in United States v. National
Steel Corp., observed that "the disclosure of trade secrets rests
in the court's discretion. Our probl'em is one of weighing the
need for discovery against the desirability of maintenance of
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secrecy of processes."In applying this balance-of-interests
test, a court would also consider the availability, under Rule
26(c)(7), of a protective order commanding "that a trade secret
or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a desig-
nat ed way.''
Discovery of_Expert Opinion and Testimony.
Rule 26(b)(4) provides two different discovery procedures
for experts the party intends to call as witnesses and for ex-
perts the party retained or specially employed in anticipation
of litigation or in preparation for trial, but does not intend
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to call as a witness. Under subdivision (A) of this rule, a
party can be required, in response to interrogatories, to state
the substance of the testimony the expert witness is expected
to give.
Some indication of the detail required in a response to
an interrogatory under Rule 26(b)(4)(A)(i) was recently illus-
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trated in Rupp v. Vock £> Weiderhold, Inc. The court held
insufficient answers which gave only the names of the proposed
expert witnesses end which described the subject matter of their
testimony as "the machine design, electrical circuitry, and
human factors engineering" related to the machine which allegedly
caused the accident sued upon. The respondent was ordered to
furnish the address, occupation or profession, and specialty
of each expert, and to state more precisely the subject matter
of their proposed testimony, including the substance of their
facts and opinions and a summary of the grounds for each opinion.
As for "retained or specially employed" experts who are not
expected to be trial witnesses, subdivision (B) provides that
rhe facts kno'wn or the opinions held by such an expert may be
discovered only upon a showing of exceptional circumstances
which make it impracticable for the discovering party to obtain
the same information by other means. To date, no court has
dealt with the significance of the difference, if any, between
"retained" and "specially employed" as those terms are used in
Rule 26(b)(4)(3).
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Rule 26 (by 3) end the Attorney Work Product Privilege.
Rule 26(b)(3) provides that there nay be discovery of doc-
uments and tangible things prepared for litigation or for trial
"only upon a showing that- the party seeking discovery has sub-
stantial need of the materials in the preparation of his case
and that he is unable without undue hardship to obtain the sub-
stantial equivalent of the materials by other means." The "doc-
uments and tangible things" discoverable under this provision
may have been prepared "by or for another party or by or for
that other party's representative (including his attorney, con-
sultant, surety, inderanitor, insurer, or agent)...." Even if
the required showing is raade, the court is directed to "protect
against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative
of a party concerning the litigation."
This last restriction reflects and, in conjunction with
Rules 33 and 36, partially nodifies the attorney work product
doctrine announced by the Supreme Court in the classic case of
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Hickrr.an v. Taylor. The Court recognized the work product
privilege in order to protect an area of the attorney's en-
deavor not covered by the attorney-client privilege. The dis-
trict court held that the statements of witnesses taken by an
attorney after the occurrence of an accident and before but in
contemplation of litigation were discoverable. Reversing, the
U.S. Court of Appeals for the Third Circuit held that the
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statements were within the attorney - client privilege.
The Supreme Court affirmed but rejected the theory of
attorney - client privilege. In the Court's view, the attorney's
work product privilege was available to prevent "unwarranted
.205;
inquiries into the files and mental impressions of an attorney."
The term, "Work product of the lawyer," coined by the Cir-
cuit Court of Appeals (153 F. 2d 212, 223), was approved by the
Supreme Court as an apt though rough label for the "interviews,
statements, memoranda, correspondence, briefs, mental impres-
sions, personal beliefs, and countless other tangible and in-
tangible ways" a lawyer represents his client, all of which
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should be protected from discovery by the adversary.
In its comments on the 1970 amendments, the Advisory Com-
mittee discusses the similarities and the differences between
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the pertinent discovery rules and H^ckman v. Taylor.
...(T)he language of the subdivision sug-
gests the factors which the courts should con-
sider in determining whether the requisite
showing has been made. The importance of the
materials sought to the party seeking them in
preparation of his case and the difficulty he
will have obtaining then by other means are
factors noted in the Hickr-an, case. The courts
should also consider the likelihood that the
party, even if he obtains the information by
independent means, will not have the substan-
tial equivalent of the documents the produc-
tion of which he seeks.
Consideration of these factors nay well
lead the court to distinguish between wit-
ness statements taken by an investigator, on
the one hand, and other parts of the inves-
tigative file, on the other. The court in
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Southern Ry. v. Lcnhcun, 403 F.2d 119 (5th
Cir. 1968), while it naturally addressed
itself to the "good cause" requirements of
Rule 34, set forth as controlling consid-
erations the factors contained in the
language of this subdivision. The analysis
of the court suggests circumstances under
which witness statements will be discover-
able. The witness may have given a fresh
and contemporaneous account in a written
statement while he is available to the
party seeking discovery only a substantial
time thereafter. Lcnham, suora at 127-128;
Guilford, supr_a at 926. Or he may be re-
luctant or hostile....
Or he may have a lapse of memory.... Or
he may probably be deviating from his prior
statement. On the other hand, a much stronger
showing is needed to obtain evaluative mater-
ials in an investigator's reports. (Cited
cases have been omitted.)
Materials assembled in the ordinary course
of business, or pursuant to public require-
ments unrelated to litigation, or for other
nonlitigation purposes are not under the
qualified immunity provided by this subdivi-
sion. Goosrr.an v. A. Duie Pyle, Inc., 320 F.
2d 45 (4th Cir. 1963); cf. United States v.
New York Foreign^Trade Zone Operators, Inc.,
304 F.2d 792 (2d Cir. 1962). No change is
made in the existing doctrine, noted in the
Hicknan case, that one party may discover rel-
evant facts known or available to the other
party, even though such facts are contained in
a document which is not itself discoverable. ,
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Rules 33 and 36 have been revised in order
to permit discovery calling for opinions, con-
tentions, and admissions relating not only to
fact but also to the application of law to fact.
Under those rules, a party and his attorney or
other representative say be required to disclose/
to some extent, mental depressions/ opinions, or
conclusions. But documents or parts of documents
containing these matters are protected against
discovery by this sub-division. liver, though a
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party may ultimately have to disclose in re-
sponse to interrogatories or requests to ad-
mit, he is entitled to keep confidential doc-
uments containing such matters prepared for
internal use. ,>_^ ,
According TO Professor Moore, the extent to which mental im-
pressions, opinions, or conclusions of the party or his repre-
sentative are discoverable still depends upon the work product
doctrine:
(W)hen the subject matter that is sought
comes within the policy of the 'work product1
doctrine, that is if it relates to the man-
ner of preparation, strategy, appraisal of
the strengths and weaknesses of the case, or
activities of the attorneys, rather than to
the underlying evidence, it is protected from
disclosure no natter which 'of the methods of
discovery is employed, and without regard to
whether it is sought from the party or from
the attorney.
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Under both Rules 33 and 36, "opinions on
abstract propositions of law are still ob-
jectionable, but requests seeking admission
of the truth of statements applying law to
the facts of the case are specifically sanc-
tioned. ..."
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Disclosure under the Freedom of Information Act.
The Freedom of Information Act (hereinafter FOIA) can be
used by "any person," parties as well as non-parties, to obtain
information from agencies of the U.S. Government. The FOIA
present particularly acute problems of interpretation, most of
which were identified by Kenneth Gulp Davis in an article pub-
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lishe-d scon after its enactment in 1967. The first four
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subsections of the statute affirmatively require the dis-
closure of broad categories of government records. However,
much of what is given is taken away in the nine exempted in-
formation categories listed in section 552(b). Interpretation
of the scope of the exemptions is made troublesome by sub-
section (c) which provides: "This section does not authorize
withholding of infonnation or limit the availability of re-
cords to the public, except as specifically stated in this
section." (Emphasis added.)
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The legislative history^compounds rather than alleviates
the interpretative difficulties under the FOIA. Commentators,
courts, and administrators have found most of the useful legis-
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lative history in a Senate committee report and in a House
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committee report, each of which contradicts the other on
numerous critical points of interpretation. "In general, the
Senate committee is relatively faithful to the words of the
Act, and the House committee ambitiously undertakes to change
the meaning that appears in the Act's words. The main thrust
of the House committee remarks that seem to pull away from the
literal statutory words is almost always in the direction of non-
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disclosure^."
A very thorough analysis of the FOIA was issued in June
1967 by the Attorney General in a pamphlet entitled Attorney
General's Memorandum on the Public Information Section of the
Administrative Procedure P-~t. The Attorney General' s Memorandum
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relies primarily on the House Report, frequently ignoring the
more liberal Senate Report. For this reason Professor Davis
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finds the Memorandum sometimes, rather than always, persuasive.
EPA1s regulations for implementing the FOIA1s requirements
appear at 40 C.F.R. §1; '.Environment Reporter - Federal
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Regulations 101:0101. Questions concerning the Agency's right
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to withhold requested information should be referred to the
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Deputy General Counsel in Washington, D. C.
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Negotiations.
I,
Historically, most of the civil Refuse Act cases have been
terminated by a negotiated settlement rather than by a litigated
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judgment. i
Perhaps the most important single consideration in any
settlement negotiation is that the Government's attorneys be
fully briefed and prepared in advance of the first negotiating
session. Otherwise, a considerable amount of time is wasted and
unnecessary concessions may be made because of ignorance.
Some fundamental steps should be taken prior to the first
negotiation session:
1. Obtain the defendant's Corps permit application and
make certain that it is up-to-date and accurately filled out.
2. Obtain from the defendant, by simple request, the blue-
prints and flow diagrams for the facility involved. This will
enable the attorney and the technical people to know in advance
the necessary flow rates.
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3. Flag in advance any air problems related to the Re-
fuse Act case as well as any other areas where environmental
trade-offs may be involved. Examples are possible ocean dump-
ing or solid waste disposal problems.
4. Consult in advance with all necessary technical per-
sonnel, including representatives of the Refuse Act permit
program, to determine what is minimally acceptable for a given
plant.
5. Find out in advance whether in your particular case
consultation with the State water or air pollution control
agency is advisable. If it is, you should formulate your
settlement position in conjunction with the State regulatory
agency.
Several pointers may be helpful in the actual negotiating
sessions. After you have satisfied yourself that you are fully
prepared, commence and conduct the negotiations according to
the following guidelines:
1. Keep the negotiations moving. It is not necessary to
wait 30 days between sessions, especially if you have come to
the first session prepared.
2. If you are negotiating while the case is still pending
in court, move the case forward while you are negotiating. The
importance of this recommendation cannot be over-emphasized.
If the Government files a complaint and allows the defendant to
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obtain an unlimited extension of tine in which to answer while
the parties are seeking a negotiated settlement, the defendant
understandably will believe that the government is unwilling
to litigate the case on the merits. Once this notion permeates
a negotiating session, the government's leverage is considerably
lessened.
3. Work from your own rather than from the defendant's
draft of proposed settlement terms.
4. Do not make concessions on technical matters until
they have been properly studied by the appropriate technical
expert in EPA. Very often the attorney will have a technical
representative with him at the negotiation sessions. Get an
opinion from this qualified person before announcing any decision
concerning technical parameters.
5. Advise the defendant that you and your technical
counterpart are part of a negotiating team. Also, advise the
defendant that some other person in either the Department of
Justice, the Regional Office or, where appropriate, Headquarters,
has the final responsibility for signing off on the terms of
the consent decree.
6. Remember that the Refuse Act provides that your case
is under the "supervision and control" of the United States
Attorney who is handling it. Keep him informed of everything
you are doing and provide him with all the information he needs
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to obtain the best possible settlement.
7. Do not make any concessions on the degree of treatment.
If concessions are necessary and in the interests of the Govern-
ment, have those concessions ran to the time frame for compliance.
Consent Decrees.
The following clauses should be included in any negotiated
settlement of a civil Refuse Act suit. This is not an exhaustive
list but represents the most important elements that should be
considered in the preparation of a consent decree.
1. Parameters for effluent discharge. The most important
aspect of a consent decree is to specify the effluent require-
ments that the Company will have to meet in order to settle the
case. These should be developed in cooperation with the Regional
Office, RAPP program, headquarters technical personnel, and any
other source of reliable data. The numbers most frequently used
in consent decrees are net daily loading figures applied to the
total discharge of the Company. The figures should be determined
on the basis of a rational set of criteria that can be justified
in Court.
2. Construction schedule. The decree should include a
time frame in which the Company is required to implement the
parameters specified in the decree. This will involve an assess-
ment of the type of facilities needed to meet these standards
and a calculation of a reasonable amount of time for installation
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and start-up. Many companies try to secure a large time lag
between signing off on a!, decree and completion of the remedial
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facilities. This should^be avoided so that the Company's dis-
charge is restricted as quickly as possible.
3. Monitoring. An1" extensive monitoring provision should
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be included in a consent decree. Monthly reports should be
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filed with the Regional .Administrator indicating random sam-
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pling and evaluation of the Company's effluent. The extent of
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monitoring required should be determined by the nature of and
the potential harm from ,the Company's discharge.
4. Facts of the case. The consent decree should have in
the "Whereas Section" a ^.recitation of the facts of the case.
This should include a statement as to jurisdiction, that a
claim exists upon which ;relief may be granted, a designation
of the defendant, the types of processes that are involved, the
nature and amount of the discharges that instigated the liti-
gation, the fact that the defendant does not hold a permit from
the Army Corps of Engineers, and some statement as to the
type of equipment that the Company plans to install.
5. Definition section. The decree should include a sec-
tion that defines the most frequently used terms such as Admin-
istrator, discharge, intake, outfall, net daily loading, etc.
6. Interim requirements. The decree should require the
Company to submit to the Administrator or his designee plans
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for the construction of facilities together with appropriate
progress schedules. Caveat language should be included stating
that submission of the plans in no way constitutes approval
of the Company's selection of the design for such treatment
facilities.
7. Runoff. The Decree should provide that sludge materials
and other solids are not deposited in such a way that the
materials or the runoff therefrom will enter navigable waters.
8. Sampling. A provision should be included stating the
methods by which the samples taken of the Company's effluent will
be analyzed. This should specify reference to some commonly
accepted source data such as Standard Methods for the Examination
of Water and Waste Warers, 13th edition, 1971 American Public
Health Association, or to some testing procedure that can be
agreed to by the parties in writing. The monthly report sub-
mitted to the Regional Administrator or his designee should
be certified by a qualified chemist or biologist who can attest
that the sampling is representative of the Company's discharge.
The Company should also be required to submit copies of any
reports filed with the State to the Regional Administrator.
9. Inspection provision. The decree should provide access
to the plant by duly authorized employees and agents of the
United States in order to insure that the terms of the decree
are being met.
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10. Permit disclaimer. The decree should include language
indicating that the decree itself is not a permit for discharge
into navigable waters required by the 1899 Refuse Act.
11. Liquidated damages. A liquidated damages provision
may also be included in the decree. The terms of this provision
would require the Company to pay the Government a sum certain if
there is a violation of the decree. The provision should in-
clude language to the effect that it in no way impairs the
Government's right to use its contempt power under 18 U.S.C.
section 401.
12. Other laws. The decree should contain language
stating that it in no way relieves the Company of its obligation
to comply with existing or later enacted State and Federal laws.
13. Liability. The decree should contain language holding
the Company liable and its agents liable for violation of the
terms of the decree.
14. Right to petition. The decree should contain language
authorizing either party to apply to the Court at any time for
such further orders and directions as may be necessary and
appropriate.-
15. A final caveat. Language to be avoided in consent
decrees includes placing any burden of proof on the Administrator
or the Agency, and requiring the Administrator to certify the
environmental safety or to approve the use of specific abatement
equipment.
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This listing is not exhaustive; the appropriateness of
| additional provisions will depend on the specific nature of
I the discharge and the requirements being imposed by the Regional
,~,.r.e.:
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Water Pollution Litlcaticr. Bibliography
A. Texts
American Public Health Association et. al. , Glossary;
Vat: er .and Vc.--tev.-r.ter Control £r.ciLne e r i rig (1969).
American Public Health Association et. al, Standard
Methods for the £xc--inat_ion__g_f _V.'ater and Wastevater,
(13th ed. 1971).
Davis, Administrative Lew Treatise (1958, Supp. 1970).
Fair, Geyer and Okun, Water and Wastewater Engineering
(1968).
Federal Water Pollution Control Administration, Water
Quality Criteria (1968).
Grad, Environmental Law; Sources and Problems (Matthew '
Bender 1971).
Gray, Environmental Law; Cases and__Haterials (1970).
Kittrell, A ,Pr_ac_t_ical Guide to Water Quality Studies
of Streams (Federal Water Pollution Control Administration
1969).
Lavs of the United States Relating to Water Pollution Con-
trol _an_d_£r>vircr.r.sr.tal C'-riiitv, Cc:;zu.ttee on Public Works,
91st Cong. 2d Sess, , Corsm. Print No. 91-33 (1970).
McCormack, Law of Evidence (1954).
McKee and Wolf, Water Quality Criteria (Resources Agency
of California, 2d ed. (1963).
Sax, Water Law, Planning and Policy; Cases or.d.Haterial9
(1968).
Wignore, Evidence, (3rd ed. 1937, Supp. 1970).
Zwick and Benstock, Water Vcstglar.d; P.alph Nc-der' 3,_ Study
G_roup Report on_Water Pollution (Grossram !>/'!).
95
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B. Law Review Articles
1. Refuse Act
Castro, Use of the Corns of Engineers Permit Authority
as a Tool for Dafer.a-r.q the Zr.vironr.ent, 11 Nat. Res.
J. 1 (1971).
Heldreth, Federal Control of Water Pollution; The
Refuse Act Peirmit Program, 27 Bus. Law 567 (1972).
Note, Environr.ental Lew-Denial of Dredge and Fill
Permit under Rivers cr.a^-Ic:r^or3 .-.opropropriation
Act of io99 on £colo~-cal Grounds, 19 Kan. L. Rev.
539 (1971).
Note, Environmental Law; Ecology Held Valid Criterion
for Denying Dredre end Fill Pemit under Section
10, Rivers end Harbors Act of 1899, 1970 Duke L. J.
1239 (1970).
Note, Qui Tom actions for Citizen Enforcement of the
Refuse Act of Io99 Acainst Polluters, 21 Clev.
Mar. L. Rev. 182 (1972).
Note, Qui Ten Actions under the 1899 Refuse Act;
Possibility of Individual Legal Action to
Prevent Water Pollution, 36 Mo. L. Rev. 498
(1971).
Note, Refuse Act: Its Role Within the Scheme of
Federal Water Quality Legislation, 46 N.Y.U.
L. Rev, 304 (1971).
Note, Refuse Act of 1899; Its Scope and Role in
Control of Water Pollution, 58 Calf. L. Rev.
1444 (1971).
Note, Refuse Act of 1899; New Tasks for an Old Law,
22-Hastings L. J. 782 (1971).
Note, Water Pollution Control Under the Refuse Act
of 1S99, 32 Mont. L. Rev. 120 (1971).
Tripp and Hall, Federal Enforcer.ent under the Refuse
Act of 1899, 35 Albany L. Rev. 60 (1970).
Towers, New Wine in Old Bottles; The Federal Refuse
Act Permit Program, 18 Lab. L. J. 243 (1971).
96
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2. Oil Pollution
Healy, International Convention on Civil Liability for
Oil Pollution Dair.aae, 1 J. Maritime L. 317 (1970).
McCoy, Oil Spill and Pollution Control: The Conflict
between State and Maritime Law, 40 Geo. Wash. L.
Rev. 97 (1971).
Note, Control of Pollution by Oil Under the Water
Quality Irr.~-rov-ner.t Act of 1970, 27 Wash. Z>
Lee L. Rev. 273 (1970).
Note, Liability for Oil Pollution Cleanup and the
Water Quality Irr.orovement Act of 1970, 55 Cornell
L. Rev. 973 (1970).
Note, Pollution of'the High Seas Resulting from
Drilling ar.d Producing Operations-Federal
Jurisdiction and Operator Liability, 12 S. Tex.
L. J. 73 (1970).
Note, Reinforced Admirality Remedy for Oil Spill
Damage, 3 Law £> Pol. Int'l Bus. 210 (1971).
Utton, Survey of National Laws on the Control of
PolluTJon froir. Oil and Gas Operations on rhe
Continental Shelf, 9 Colum. J. Transnat'l L.
331 (1970).
3. National Environmental Policy Act
Co1eman, Possible Repercussions of the National
Environmental Policy Act of 1969 on the Private
Law Governing Pollution Abstergent Suits, 3 Nat.
Res. Law. 647 (1970).
Hanks L. Hanks, An Environmental Bill of Rights: The
Citizen Suit and the National Environmental Policy
Act of 1969. 24 Rutgers L. Rev. 230 (1970).
Note, National Environmental Policy Act of 1969; A
Mandate to the Corps of Engineers to Consider
Ecological Factors, 50 B.U.L. Rev. 616 (1970).
Note, National Environmental Policy Act; A Sheep in
Wolf's Clothing?, 37 Brooklyn L. Rev. 139 (1970).
97
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Note, NEPA: Birth end Infancy, 20 Cath. U.L. Rev. 184
(1970).
Note, NEPA: Full of Sound and Fury . . . ? 6 U
Richmond L. Rev. 116 (1971).
Note, Panoramic View of the National Environmental
Policy Act, 16 How. L. J. 116 (1970).
Note, Regulation of Nuclear Power After the National
Environnenral Policy Ac~_of 1969, 24 Rutgers L.
Rev. 753 (1970)
Note, Retroactive Application of the National Environ-
mental Policy Act of 1969, 22 Hastings L. J. 467
(1971).
Note, Retroactive Laws -- Environmental Law —
Retroactive Application of the National Environ-
mental Policv Act of 1969, 69 Mich. L. Rev. 732
(1971).
Peterson, An Analysis of Title I of the National
Environmenral Policy Act of 1969, 1 ELR 50035
(1971)
Reilly, The National Environmental Policv Act and the
Highway Program: herqinc Administrative Traffic,
20 Cath. U. L. Rev. 21 (1970).
4. Miscellaneous
Brown and Duncan, Legal Aspects of a Federal Water
Quality Surveillance System, 68 Mich. L. Rev.
1131 (1970).
Davis, Theories of Water Pollution Litigation, 1971
Wis. L. Rev. 738 (1971).
Fernandez, Due Process and Pollution: The Right to a
Remedy, 16 Vill. L. Rev. 789 (1971).
Hines, Agriculture: The Unseen For in the War on Pol-
lution, 55 Cornell L. Rev. 740 (1970).
Hines, Nor Any Drop to Drink; Public Regulation of
Water Quality, 52 Iowa L. Rev. 186, 432, 799 (1967).
Manaster, Development of Federal Water Pollution Control;
The Past and the Future, 1971 U. 111. L. F. 36 (1971),
98
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• Mat hew, Pr_actj_c':l_Cf;;-.T.?r-t
I
16 S.D. L. ?,'.-v. oCo (li;?i).
IHulchoy, Cci^rci^cv^^Se^j .- £onrj_i_
^•i-xS^ J:r /%^^l£A:-u"^-'":-J^2.nJiJ£^ ' 10 Ariz. L. Rev.
120" (19o~): .,
I Note,
PS^IS^ _
I Power rlcTv:..;,. 55 i-iaj^u L. Rev. 1223 (1971).
__. ,„ ,
Note, Coros of ""cri.'-ieex-s K~w Guardiaris of Ecology, 31 Lab,
Kela TO "~ry -;r.r S-r-^f- -'\c.-'. En.'orcincr Stricter
Not e , Er-virorir^er1 tc 1 ^cv^C'STu ^.'- ss Has Authority llnder_
or^c^rce ^ 1 -;; u r a j: o ^tec^t^ Karine £coJ.g~in.
o Tck e
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• Council on £nvironr,v;n!:al Qua lily, "-i.ni.ial Report .
_ _ -
Environmental Ixiw Institute, Envi '. oriental Digest.
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EnvironmenTcii Law Institute, T.<\v:. rpr,n\ental Lxiw _Rg-DO_r tgr .
i ~. „.-
I EPA , Alter rarely e _Tj. :-,o rx J /;a_J-tex_h.;;; '! ? for Clcon Water__^^ Economic
Keoo^ (1971).
I
EPA, National Oil arid /rcz2rdous Substances Pollution Contingency
• ' Plan (19/T). ....... I"
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POOTKOTUS
1. 33 U.S.C. §§4Ql-'i:i> (r>upp. 1970).
2. 35 Fed. Rag. 19677 (.1^70); Environment Reporter - Federal
Laws 71:5505.
3, Courts and commentators hav~ v~;rned that the veto power
over psmit applications which \>as assigned to EPA by
Executive Order J1574, Sec, 2(a)(2)(A), itvay constitute
an illegal delegation of statutory authority. §.~2.f
Businessmen for the Public Interest v. Resor, P.Supp.
, 3 ERG 1216, 1224 (N.D. 111. 1971) where the'court
declared that the Corps' implementing regulations came
"to the brink of xinlcv/iful delegation"; and Drulsy, The
Refuse Act of 1899, Environment Reporter - Monograph No.
11 (1/28/72), at 15.
4. 33 U.S.C. §§411 and 412.
5. The right to civil relief under tha Refuse Act is based
upon the hold5,ngs in United States v. Republic Steel Corp.,
362 U.S. 482, 1 F:1C 1022 (1960) and United States v.
Wyandotte Tranrporration Co., 389 U.S. 191 (1967) which
involved violations of, respectively, sections 10 and 15
of the Rivers and Harbors Act. Section 16's criminal
penalties are applicable to violations of these two
sections as well as to violations of the Refuse Act.
In Wyandotte Transportation, judicial recognition of the
Government's right to compensatory damages was based,
in part, on the acknowledged inadequacy of the statutory
criminal penalties. J.d at 204.
6. 384 U.S. 224, 1 ERG 1033 (1966).
7. Id. , 1 ERC at 1034.
8. Id. , 1 ERC at 1036.
9. 195 F.2d 369 (2d Cir. 1952).
10. Id. at 370.
11. United States v. ES:JO Standard Oil Co. of Puerto Rico,
375 F.2d 621, 1 ERC 103S (3rd Cir. 1967).
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1
1
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1
1
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1
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28,
29.
30.
31.
32.
Id. , 1 ERG at 1039,
• United States v. Or ley Refd'Irg Co., No. J.-70-Cr.-49
(ED Ark. 1971) (no vten op:.»jicn).
United States v. ."-.t^rlake i>';csl Corp., 297 F.Supp. 912
1 ERG 1045 (N.D, III, .1969),,
Supra , note 9.
United States v. Edgar., 170 F.Su~o. 219 (D.C. Pa. 1959),
off 'd, 274 F.2d 729 (3id Cir. I960).
Piledriver No. 2, 239 F. 489 (2d Cir. 1916).
United States v. Federated Homes Inc., 68 Cr. 574 (S.D.N.Y.
Nov. 24, 1969).
The President Coolidge, 101 F. 2d 638 (9th Cir. 1939).
United States v. Florida Power &. Light Co., 311 F.Supp.
1391, 1 EEC 1283 (S.D. Fla. 1970); leave to appeal inter-
locutorv order denied (5th Cir., February 1, 1970); consent
decree entered, 53 F.R.D. 249 (S.D. Fla. 1971).
United States v. City of Asbury Park, F.Supp. , 3 ERC
1714 (D. N.J. 2/17/72).
33 U.S.C. §407.
362 U.S. 482, 1 ERC 1022 (1960).
Druley, ^vu^ra note 3, at 5.
Sugra note 23, 1 ERC at 1025.
Ld. , 1 ERC at 1031.
See, Tripp and Kail, Federal Enforcement Under the Refuse Act
of 1899, 35 Albany L. Rev. 60, 68-73 (1970).
329 F.Supp. 118, 2 ERC 1804 (W.D. Pa. 1971).
Id., 2 ERC at 1805-06.
Id. , 2 ERC at 1805.
Id.
Supra note 21.
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33. The only exception-: appear to be Scow No.' 36 v. United States,
144 F. 932 (1st Cir, 1906), end United States v. Crow, Pope S
Land Enterprises, l.'i-:., (Ii.D. r,a< 3/21/72). In the latter case,
the Court held that the evidence proffered was insufficient to
establish that a 47.7i-ir.iie or retch of the Chattahoochee River
between Peachtree Creek and Enr'ora Dam is a navigable water of
the United States.
34. F.Supp. , 3 ERC 1458 (D,ft.C, 1971).
35. For an even more 15 ve-zel readirg which reaches the opposite
result of that in Tv-i-lt'.r, see Ih/aley, sjupra note 3, at 16.
36. Kalur v. Resor, svr?rc.: r-ote 34.; notice of appeal filed
(D.C. Cir. 2/3/72)1
37. Recoirjaendations of the Council on Environmental Quality and
the Environmental Protection Agency on Pending Legislation
Affecting the Refuse Act, Permit System, and National En-
vironmental Policy Act, Environment P.eporter - Current
Developments 1247 (February 11, 1972); but see, CEQ Chair-
man Tells Senate Committees No Basic Chances to 17ZPA are
Warranted, Environment Reporter - Current Developments 1323
(March 3, 1972), and Barfield and Corriqan, Environment
Report/White House Seeks to Restrict Scope of Environmental
Law, National Journal (2/26/72), pp. 336'-349.
38. United States v. E. Rcbesori, 67 Cr. 884 (S.D.N.Y. April 17,
1968); United States v. Interlake Steel Corp., supra note
14.
39. Supra note X4, 1 ERC ct 1046.
40. United States v. Corporation of the Era, 68 Cr. 903 (S.D.N.Y.
Sept. 29, 1969) (unpublished opinion).
41. United States v. Georgetown University, 331 F.Supp. 69, 3 ERC
1038 (D.D.C. 1971).
42. Tripp and Kail, £upjra note 27, at 74.
43. United States v. Arraco Stei-1 Corp., — F.Supp. —, 3 ERC
1067 (S.D. Tex. 1971); United States v. Getty Oil Co., —
F.Supp. —, 3 ERC 1225 (S.D. Tex. 1971); United States v.
Humble Oil Co., -- F.Supp. --, 3 ERC 1226 (S.D. Tex. 1971);
United States v. Kcplewood Poultry Co., 327 F.Supp. 686, 2
ERC 1646 (D. Me. 1971); United Statec v. Mobil Oil Co., — F.
Supp. --, 3 ERC 1291 (S.D. Tex. 1971); United States v.
Pennsylvania Industrial Chcir.ical Corp., 329 F.Sirap. 1118,
2 ERC 1804 (W.D. Pa. 1971); United States v. U.S*. Steel
Corp., — F.Supp. —, 3 ERC ]291 (N.D. 111. 1971); United
States v. U.S. Steel Corp., 32.8 F.Supp. 354, 2 EHC 1700 (N.D.
Ind. 1970); United States v. Interlcke Steel Corp., 297
F.Supp. 912 (N.D, 111. 1969).
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I 44. 33 U.S.C, §1174,
145. United Srates v. U.S.'Steel Coxp., 328 F.Supp. 354, 2 ERC
1700, 1702 (K.D. InJ,'(2970).
i
_ 46, United States v. Pcnnsylvcn.-'.a Industrial Chemical Co.,
I su£!2 note 28, 2 ERC or 1B06,
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47 • M* / 2 mc at i"'^*
| ' 48. United States v. U.S. Steel Corp., F.Supp. , _, 3 ERC
1057 (N.D. 111. 1971))
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49. Id., 3 FRC at 1059. '
50. Id. '
• 51. The Nea Hellis, 116 F!2d 803 ( 2d Cir. 1941); _see, 33 U.S.C.
§418. .
I;
52. For a recent case whii:h denies a variety of defense motions
in a criminal prosecution under the New York Harbor Act of
11888, see United. Statfjs v. Vulcan Materials Co., 320 F.
Supp. 1378, 2 ERC 1145 (D.C. N.Y. 1970).
53. jsec: note 3, suora.
• 54. United States v. Florida Power & Light Co. , jBupjra note 20,
1 FRC at 1284.
55. Id.
156. See Rule 65, F.R.Civ. P. for the procedural requirements
governing the issuance of temporary restraining orders, pre-
liminary injunctions, and permanent injunctions.
I 57. F.Supp. , 3 ERC .1067 (S.D. Tex. 1971).
58. Supra, note 21.
• 59< _supr_q note 57, 3 ERC at 1069.
• 60. Id., 3 ERC at 1608.
61. Suora note 21, 3 ERC at 1723.
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62. 33 U.S.C. §1158.
the FWPCA is Shcvv-H--ndersc-n v, Schneider, 3 ERC 1635 (W.D.
Mich., S.D., 6/25/71), offj_d. 3 ERC 1647 (6th Cir. 1971) which
held, .int£._£ cj.^g, that EP'\ is r.or under a duty to make cer-
tain (1) that a or.:.:., traction errant recipient utilizes the unit
price control method, (2) thc.t competitive bidding be used, and (3)
that the contract be awarded to rhe lowest bidder.
63. For a criticism of tho eligibility of industrial wastes for
Federal construct.Ion grants f.indincj, s_3_e, Zwick and Benstock,
Water Wasteland: Ralph leader's ij-rudy Group Report on Water
Pollution (Grossman 1971), at 322-331.
64. Uncodified Regulations, fcrraariy 18 C.F.R. §601.21(1); Environ-
ment Reporter - Federal Regulations 111:0504.
65. 42 U.S.C. §§3101 and 31C2. Pertinent regulations appear at
44 C.F.R. Parts 707 and 710. Guidelines for the administration
of the program are published in Water and Sewer Facilities
Grant Program -- A HUD Handbook, MPD 6220.1 (March.31, 1970)
or HUD 6220.1A.
66. 42 U.S.C. §3102(a).
67. S.2770, 92d Cong,,- 1st Sess. $20?. (1971) increases the basic
Federal share to 60 percent of the estimated reasonable cost
and provides that the Federal grant "shall be increased" to
70 percent if the State agrees to pay 10 per cent of the con-
struction costs for all projects receiving Federal support.
H.R. 11896, 92d Cong., 1st Sess. (1971) §202 increases the basic
Federal share to 60 percent and provides that the Federal
grant "shall be increased" to 75 percent if the State agrees
to pay 15 percent of the construction costs for all projscts
which receive Federal support.
68. 33 U.S.C. §1158(b)(7).
69. 33 U.S.C. §1158(f).
70. 33 U.S.C. §1158(c).
71. Uncodified Regulations, formerly 18 C.F.R. §601.29; Environ-
ment Reporter - Federal Regulations 111:0508.
72. Id_. §601.25(f); Environment Reporter - Federal Regulations
111:0506.
73. Id §601.25(c); Environment Reporter - Federal Regulations
Tli:0505.
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74. Id. B601.32; Environment Reporter - Federal Regulations
Til:0509.
75. Id. §501.33; Environment Reporter - Federal Regulations
III:0509.
76. Id. §601.32(c).
77. Id. §601.33(c).'
78. 33 U.S.C. §1158(b)(4). For a criticism of the under-
utilizatiori of this provision, see, Zwick and Benstock,
supra note 63, at pp. 331-38.
79. Uncodified Regulations, formerly 18 C.F.R. §601.25(b);
Environment Reporter - Federal Regulations 111:0505.
80. Id. §601.34; Environment Reporter - Federal Regulations
111:0510.
81. Public Law 84-660 (1956); 33 U.S.C. §1160 (Supp. 1970).
82. Sec. 10(a), FWPCA (33 U.S.C. §1160(a)).
83. Sec. 10(d) - (h), FWPCA (33 U.S.C. §1160(d) - (h)).
84. Both the enforcement conference procedure and the 180-day
notice requirement (see notes 107-109, infra, and accom-
panyinq text) are eliminated in S.2770, 92 Corig. , 1st Sess.
§309 (1971) and in H.R. 11896, 92d Cong., 1st Sess. S309
(1971). See also, Federal Water Pollution Control Act
Adnendnents of 1971, Report of the Comra. on Public Works
(to accompany S.2770), S. Rep. No. 92-414, 92d Cong., 1st
Sess. (1971); and Federal V/ater Pollution Control Act
Amendments of 1972, Report of the Coxuru on Public Works with
Additional ar.d Suoplemental Views (to accompany H.R. 11896),
H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 73 and 114-16 (1972),
For a sunViV.ary report on all enforcement conferences
convened from January 1957 - April 1971, see Hearings on
Water Pollution Control Legislation - 1971 (Oversight of
Existing Program) Before the House Corran. on Public Works,
92d Cong., 1st Sess., at 210-226 (1971). The dates and
initiating agency for all enforcement conferences convened
from January 1957 - Febiuary 1971 are listed in Zwick and
Benstock, supra note 63, Appendix A, at 433-37.
85. For an example of how to demonstrate interstate pollutional
effects, _£_ee "Report on the Water Quality of Long Island
Sound/1 Long Island Enforcement Conference Proceedings (EPA,
March 1971), pp. 27-199.
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86* See, eti£LL, Report on Pollution Affecting Shellfish Har-
vesting in Galvestcrn lk?y, Texas (EPA, March 1971).
87. Public Hearings Un:ler tha Federal Water Pollution Control
Act, 40 C.F.R. §106 c_i _s^g..; 36 Fed. Reg. 22483 (lioveaber 25,
1971); Environr-ieir;. ;.;epoiter - Ftderal Regulations 131:0301.
88. Respectively, §10(f)(2) 'and §10(k)(l).
89. Filing of Reports with the Administrator by Persons Whose
Alleged Activities Tiesult in Discharges Causing or Con-
tributing to Water Pollution, 40 C.F.R. §107; 36 Fed. Reg.
22480 (November 25, 1971); Environment Reporter - Federal
Regulations 131:0501.
90. Sec. 10(f)(l), FWPCA (3:; U.S.C. §1160(f)(!)).
91. Sec. 10(g), FWPCA (33 U,;S.C. §1160(g)).
92. Sec. 10(g)(2), FWPCA (3?i U.S.C. §1160(g) (2)).
93. United States v. City o:: St. Joseph, Missouri, Docket No.
1077 (W.D. Mo., St. Joseph Div.), consent decree entered
October 31, 1961.
94. For a chronology of the enforcement actions against St.
Joseph, see Zwick and Benstock, supra note 63, at pp. 254-58.
* * ««*EIUU« * i ii mini MI m * * "
95. For a critical history of the administrative implementation
of the water quality standards atnendaent, see Zwick and Benstock,
supra note 63, at pp. 268-80.
96. The standards-seting conference procedure has been used twice,
See, proceedings: Conference to Consider the Establishment of
Water Quality Standards for the Mississippi River Basin Inter-
state Waters - State of Iowa (April 8-9, 1969); Proceedings:
Conference to Consider the Establishment of Water Quality
Standards for the Missouri River Basin Interstate Waters -
State of Iowa (April 15-16, 1969); and Interstate V.'aters of
State of Alabama: proposed Water Quality S-tandards, 37 Fed.
Reg. 5260 (March 11, 1972) (the standards-setting conference
was held in Montgomery, Alabama on April 5-7, 1971).
97. Federally approved water quality standards are listed in
40 C.F.R. §120; Environneat Reporter - Federal Regulations
131:2301.
98. Revision of VJater Quality Standards, 40 C.F.R. §122; Environ-
ment Reporter - Federal Regulations 131:2501.
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99. Federal Guideline on Wat<_-r Ouolity Standards (January 1967),
Envirorient Repor let - Federal I>zws 31:5121; Questions and
Answers on Water QurJ.ity Sfar.oTsrds (June 1967), Environment
Reporter - Fedeicl Lava 31:i-:51.
100. Water Qualiry Criteria, 2d £11. : Heport of the Water Quality
Criteria Ccnraittf-e of the r>.vironmanfcl Studies Board, National
Acaaer.-.v cf Sciencez- ar.d National Academy of Engineering (First
Draft 12/1/71).
101. Alabama, Georgia, Illinois, Louisiana, Michigan, Mississippi,
Ohio, end TonnesE^-e.
102. For c criticism of some of the Federally approved water quality
standards, j5e_e_ Zwick and Benstock, jsugra note 63, at pp. 269-79.
103. Federal Guidelines on Water Quality Standards, Eiupjra note 17,
Policy Guideline No. 1, at 31:5122; for a brief history and
criticism of the non-degi'adation clause policy, jJfse Zwick and
Benstock, supra note 63, at pp. 269-72.
104. Federal Guidelines on Water Quality Standards, supra note 17,
Policy Guideline No. 8, at 31:5122.
105. Id., Policy Guideline No. 6, at 31:5122.
106. United States v. Reserve Mining Company, (D. Minn., 5th Div.;
File No. 5-72, Civ. 19).
107. 180-Day Notice Informal Hearing Procedures are reproduced at
Tab D of the Appendix.
108. Id. at paragraph C.
109. Id. at subparagraphs B.12 and C.I.
110. 33 U.S.C. §1161 (Supp. 1970).
*
111. Sec. ll(b)(3), FWPCA (33 U.S.C. §1161(b)(3)).
112. 3 C.F.R. §545 (1971); Environment Reporter - Federal Laws
71:5141. For a breakdown of the delegations made by
Executive Order 11548, _see Sur^aary of Section 11, FWPCA
Delegations Made by Executive Order 11548 to the Environ-
mental Protection Agency and/or the Department of Trans-
protation, Tab F , Appendix.
113. 40 C.F.R, §110.3; Environment Reporter - Federal Regulations
131:0901.
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114. A discussion of who is a "person in charge" appears at
pp. 7 and 11-12 of The raemoronduia. at Tab E , Appendix.
115. The requirement of irr'r.ediate notification is analyzed at
pp. 12-13 of the nieraorandum ai Tab E , Appendix.
116. Appropirate federal officials are designated in 18 C.F.R.
§153.105.
117. United States v. Hvrr.ble Oil, F.Supp. _____ , 3 EEC 1226
(D.C. S.Tex. 1971) and UnitedHiftates v. Mobil Oil, _____ F.
Supp. , 3 ERG 1291 (D.C. S.Tex. 1971) held that, by
virtue of §24, FWFCA (33 U.S.C. §1174), Refuse Act criminal
prosecutions for oil discharges have not been preempted by
fill, FWPCA (33 U.S.C. §1161).
118. United States v. Robert Elaine Boyd, Cr. No. 94-71-D2
(W.D. Wash. 1971) was preceded by a Refuse Act criminal
prosecution against the defendant's employer for three
separate oil spills from its vessels. After a plea of
npjLo contendere was entered and a fine was paid, a
criminal information was filed against the Master of
one of the vessels for an alleged 311(b)(4) failure-
to-notify violation. At a March 31, 1972 hearing upon a
motion for reconsideration, the Court reaffirmed its
earlier ruling granting defendant's motion to dismiss the
information. On Kay 2, 1972 Judge McGovcrn sent the U.S.
Attorney a letter asking that he draft an order denying the
defendant's motion to dismiss.
119. Supra note 107.
120. Executive Order 11548, supra note 108.
121. National Oil and Hazardous Substances Pollution Contin-
gency Plan (CEQ, August 1971).
•
122. Sees. ll(j)(l)(A) and (C), FWPCA (33 U.S.C. §1161(j)(l)
(A) and (C)). To date, no regulations have been promul-
gated pursuant to these subsections. Regulations-for the
prevention of oil discharges from transportation - related
facilities have been proposed, under subsection ll(j)(l)(C),
by the U.S. Coast Guard: Pollution Prevention, Vessel and
Oil Transfer, 36 Fed. Reg, 24960 (Dec. 24, 1971). See also,
note 124, jLr.fr a. Draft EPA regulations implementing sub-
sections ll(j)(l)(A) and (C) have been prepared and are
being reviewed internally.
123, Sec. li(j)(l)(B), FVPCA (33 U.S.C. §1161(j)(1)(B)).
Criteria for State, Local and Regional Oil Removal Contin-
gency Plans, "10 C.F.P.. §109; Environment Reporter -
Federal Regulations 131:0701.
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124. Sec. il(j)(l)(D;, FW?CA (?3 U.S.C. §1161(j)(1)(D)). The
U.S. Coast Guard has proposed re-.rulations authorized by
this provision ci.c. subsection ll(j)(l)(C): Pollution Pre-
vention, Inspection of Vesssl.-i c.r,d Deck and Engineer
Officers Licenses, 36 Fed, Re-,]. 24970 (Dec. 24, 1971).
125. Sec. ll(j)(2), IVFCA (33 U.S.C. §1161(j)(2) ) .
126. Sees. 11(d) and i_(e). FWPCA, arc discussed at p. 15
of the memoranda;.} at Tot) E, Appendix.
127. Executive Order 11543, _svr-rro. note 108.
128. For a comparison of the relative raerits of the Refuse Act's
and section 11's enforcement provisions, see EPA Enforce-
ment Options under Section 11 of the Federal Water Pol-
lution Control Act, a memorandum reproduced at Tab G,
Appendix.
129. The enumerated defenses are: (A) an act of God, (B) an
act of war, (C) negligence on the part of the United States
Government, or (D) an act or omission of a third party
without regard to whether any such act or omission was or
was not negligent. 33 U.S.C. §1161(f)(l), (2) arid (3).
130. In American Waterways Operator v. Askew, F.Supp. ,
3 ERC 1429 (Dec. 10, 1971) the Court held that a Florida
statute (Fla. Star. Ann, 6376.031(12)) which imposed strict
liability for oil spill clean-up costs and damages had been
preempted by section 11, FWFCA.
131. Subsections ll(f)(l), (2), and (3) limit oil dischargers'
liability as follows:'
a.) vessels - lesser of $100/gross ton or
$4,000,000.
b.) onshore and offshore facilities - $8,000,000
(with certain exceptions as to onshore
facilities with total fixed storage capa-
cities of less than 1,000 barrels, see
Section ll(f)(2)).
c. ) unlimited where discharge is due to \-/ill-
ful negligence or willful misconduct.
132. 46 U.S.C. §183 (Supp. 1970).
133. In the Matter of the Co-plaint of United Transportation
Company and Tan]-; Barge 17, Inc. for Exoneration from or
Limitation of Liability, No. 238-71C2 (W.D. Wash. 10/22/71).
The sair.e day this complaint was filed, the Court issued a
Monition against all persons claiming damages for any loss
arising from the marine casualty and an iniunction re-
straining the prosecution of all suits including the U.S.
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134.
135.
136.
137.
138.
139.
140.
141,
142.
143.
144.
Governnent's section 11 claims asserted in United States
v. United Transportation Co, , Texaco, Inc. and United
Barge 17, Civil'lio. 9V79 (V.D. Wash. 6/24/71).
46 U.S.C. §183(a).
In re Harbor Towing
(D.C. Md. 1971).
-c rp,
F,Supp.
3 ERG 1607
46 CFR §542.3(a). Th',; responsibility for implementing the
financial respor.sibila.t3/ provisions of section 11, FWPCA
was delegated (Exec. Order 11543, sec. 3, supra note 103)
to the Federal Maritime Conir.ission which has pioraulgated
regulations for the issuance, cancellation, modification,
and suspension of Certificates of Financial Responsibility.
Financial Responsibility for Oil Pollution Cleanup, 46
CFR Part 542; Environment Reporter - Federal Regulations
131:1101. Sjse aj.j=£, Jlarifying Language in Certificate of
Insurance Form,~37 Fed. Reg. 4081 (Feb. 26, 1972).
33 U.S.C. §1171 (Suppu 1970).
For an example of the* procedures adopted by a federal
licensing agency iiupl2meriting its responsibilities under
section 21 (b), rw?CA,' so£ 33 CFR §209~.131, Amy Corps of
Engineers, Regulations on Navigable Waters; Environment
Reporter - Federal Regulations 131:1715.
If water quality standards were promulgated by the Agency
or its predecessor, rather than by the State, the Adminis-
trator grants or denies the water quality certification.
The Administrator must also notify the licensing agency
and the applicant that such a determination has been made.
Sec. 21(b)(2), ?\-JPCA (33 U.S.C. §1171 (b) (2)). See, EPA
Regulations on State Certification of Activities Re-
quiring a Federal License or Permit, 40 CFR §115, Subpart B;
Environment Reporter - Federal Regulations 131:1502.
Refuse Act Permit Program: Operative? Manual (EPA August 1,
1971), at pp. 201-1 thru 201*-3 and 301-1 thru 301-6. Cf. ,
33 CFR §209.131(h); Environment Reporter - Federal Regu-
lations 131:1710.
Sec. 21(b)(l), FVPCA (33 U.S.C. §1171(b)(1)).
Sec. 21(b)(7), FWFCA (33 U.S.C. §1171 (b) (7))..
Sec. 21(b)(8), FVPCA (33 U.S.C. §1171(b)(8)).
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145. 42 U.S.C. §34321-4347 (Supp. 1970).
For c Thorough analysis of NEPA1 s legislative history, see
Hc,nks £• Hanks, An Zn"^ronr.i«i-ntal Pill of Rights: The Citizen
Suit cm-3 the National Environmental Policy Act of 1969,
24 Rutgers L. Rev= 2'JO (Winter 1970). A helpful summary of
each reported dec:"-jinn involv.lr^ NEPA through Deceraber 31, 1971
appears in 102 Monitor (Council on Environmental Quality,
January 1972), at pp, 1-16.
146. Guidelines for Federal Agencies under the National Environ-
mental Policy Act (Council on Environmental Quality, April 23,
1971), Environment Reporter - Federal Laws 71:0301; Second
Annual Report of the Council on Environmental Quality
(August 1971), Appendix G.
147. Environmental Impact Statements: Procedures for Preparation,
37 Fed. Reg. 879 (January 20, 1972); Environment Reporter -
Current Developments 1192 (January 28, 1972).
148. 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 7/23/71).
149. 2 ERC at 1788-89, id.
150. 2 ERC at 1790, id, (emphasis in the original).
151. Id.
152. 2 ERC at 1791, id.
153. Supra note 34.
154. 33 C.F.R. §209.131(1)(2); 36 Fed. Reg. 6564, 6569 (April 7, 1971).
155. 430 F.2d 199, 1 ERC 1449, 1 ELR 20023 (5th Cir. 1970), cert.
den. 401 U.S. 910, 2 ERC 1909 (1971).
156. 16 U.S.C. §§661-666.
157. United States ex rel. Greathouse v. Dern, 289 U.S. 352 (1933).
158. Citizens Comriittee for the Hudson Valley v. Volpe, 425 F.2d
97 (2d Cir. 1970), affirniin£ 302 F.Supp. 1083, 1 ERC 1097
(S.D.N.Y. 1969).
159, Zabel v. Tabb, supra note 155, 1 ERC at 1454.
160. Massachusetts Water Quality Standards, (Massachusetts
Water Resources Comirission 1967), Vol. 1, p. 60.
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161. Water Resource Uses-Present and Prospective for Lake
Michigan and Warer Quality Standards and Plan of
Implementation (Michigan Water Resources Commission,
1967), p. 52. ^ "
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162. Report on Water Quality Criteria and Plan for Imple-
mentation (Indiana Stream Pollution Control Board, 1967),
p. 52.
ii.
163. Report on Water Quality Standards for Interstate Waters
of Lake Erie (Ohio Department of Health, Water Pollution
Control Board, 1967), ip. 2.
164. There is little case .'.'aw on how many, where and when
water samples should be taken. In United States v.
City of Asbury Park, ^u_ora note 21, a civil Refuse
Act case, the Court gr.ve little weight to defendant's
three samples because they had been taken at such
irregular and large intervals that they could not be
considered representa- ;ivc. The older the sampling data,
the less weight will }oe attached to it. Friesland v.
City of Litchfield, z'i- 111. App. 2d 390, 164 N.E. 2d
606 (1960). Sampling'.location also affects the weight
accorded water sample.-.. Rain v. Balph, 293 P. 2d 359
(Okla. 1956).
165. The high water mark may be determined by a vegetation
line, demarcation caused by erosion, distinctive
shelving, a change in soil characteristics, or by a
line of litter. Borough of Ford City v. United States,
345 F. 2d 645 (3rd Cir. 1965). The ordinary high
water mark is not determined by lines made during
floods and peak flows. United States v. Claridge,
279 F. Supp. 87 (B.C. Ariz. 1966), off'd 416 F. 2d
933 (9th Cir. 1969), cert, den. 397 U.S. 961 (1970).
In the case of tidal waters, the mean high water
mark is the legal boundary for the beginning of
private property rights. The mean high tide is the
average elevation of all tides observed at a given
location during a complete tidal cycle of 18.6 years.
United Srates v. State of Washington, 294 F. 2d 830
(9th Cir. 1961), cert, den. 369 U.S. 817 (1962).
166. Two leading Supreme Court decisions recently held that
neither individuals nor corporations may be prosecuted
for refusing to consent to administrative inspections
without a search warrant. Cainara v. I>?unicipal Court,
387 U.S. 523 (1967); See v. Seattle, 387 U.S. 541 (1967).
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167. Two U.S. Circuit Courts of Appeals have held that con-
sent to a warrantless administrative inspection of
business premises 1= voluntary if the consenting party
was informed of the purpose of the inspection and his
consent was obtained without force or misrepresentation.
United States v, Kxvauond Killing Co. , 413 F. 2d 608 (5th
Cir. 1969), crcrt. den. 396 U,S, 1002 (1970); and United
States v. Thriiiiiaart, Inc. 42.9 F. 2d 1006 (9th Cir. 1970),
££!!• ££"• 40° u'?- 926 (1970).
168. Although there are no Federal appellate cases on the chain
of custody problems associated with water sampling and
analysis, there are numerous decisions dealing with such
problems in drug conviction cases. Sej2, e.g^. , Gallego v.
United States, 276 F. 2d 914 (9th Cir. 1960); Brewer v.
United States, 353 F. 2d 260 (8th Cir. 1965).
169. Exhibit I at Tab H, Appendix.
170. Exhibit II at Tab H, Appendix.
171. See, e.g. , Exhibit III at Tab H, Appendix.
172. Supra note 169.
173. .SuRES note 170.
174- See_, e^g^, Exhibit IV at Tab H, Appendix.
175. 28 U.S.C. §1732 (Supp. 1970).
176- .See, e^c^, United States v. Ware, 247 F.2d 698 (7th Cir.
1957) which held admissible a report of a chemical analysis,
identifying the analyzed substance as a narcotic drug,
without the supporting testimony of the Government chemist
who conducted the analysis,
a
177. In United States v. Armco Steel Corp., .supra note 43, some
not terribly important test results were admitted without
objection under the Business Records Act. Transcript,
p. 301.
178. United States v. Stifel, 433 F. 2d 431 (6th Cir. 1970),
c_er_t. den. 401 U.S. 994 (1971), cpo_royin£ Frye v. United
States, 293 F. 1013 (D.C, Cir. 1923).
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179. United States v. Ar:tico Steel Corp., supra note 43, tran-
script pp. 106, 122, 123, 354 and 355.
180. American Public Health Association et. al., Standard
Methods for the Examination of Water and Wastewater (13th
ed. 1971), p. viia.
181. American Public Health Association, American Water Works
Association, and Water Pollution Control Federation.
182. Brown and Duncan, Legal Aspects of a Federal Water Quality
Surveillance System, 68 Mich. L. Rev. 1131, 1162 (1970).
183. The discussion of automatic water quality monitoring devices
is a suranary of Steve Rabin, Certain Aspects of Water Quality
Monitoring, 1971 (unpublished paper available from Water
Quality Surveillance Section, Technical Data and Information
Branch, Water Quality Office, EPA).
184. See pp, 10-12, supra, for a discussion of the legal re-
quirements for injunctive relief under the Refuse Act. For
a general discussion on the harmful effects of water pol-
lution, _s_ee Zwick and Benstock, supra note 63, at pp. 3-34,
and, sr_e 25 Am. Jur. Proof of Facts 350 (1970).
185. Based on fish bioassays, an expert witness testified that
effluent containing toxic cyonides and being discharged to
the Houston Ship Channel was lethal to shrimp and fish
species in Galveston Bay. United States v. Anaco Steel
Corp., supra note 43, 3 ERC at 1070. For a general dis-
cussion of the effects of pollution on fish, other aquatic
life and wildlife, see Federal Water Pollution Control
Administration, Water Quality Criteria (1968), pp, 27-110.
For an exhaustive analysis of the effects of pollutants on
all types of aquatic life, _se_e McKee and Wolf, Water
Quality Cr-iteria (The Resources Agency of California, 1963).
186. For a general discussion on water supplies, see Federal
Water Pollution Control Administration, Water Quality
Criteria (1968), pp. 17-26. The 1962 Public Health Service
drinking water standards are currently being revised and
new standards are scheduled to be promulgated by the end
of 1972.
187. In United States v. City of Asbury Park, supra note 21, 3
ERC at 1723, the Court found that the disposal of sewer
sludge to the Atlantic Ocean was a dangerous health hazard
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to the thousands cf bathers who use the affected beach
waters. For a general discussion of the recreational losses
caused by pollution, n3_e Federal Water Pollution Control
Administration, Writer Quality Criteria (1968), pp. 7-16.
188. The presentation of expert witness testimony on aesthetics
is discussed in Sive., Securing, Examining and Cross-Examining
Expert Witnesses in Enviror rental Cases, 68 Mich. L. Rev.
1175 (1970).
189. _See, 49 ALR 2d 253 (1956) for the measure and elements of
damages in State water pollution nuisance actions.
190. See, e^a^, Report on Pollution Affecting Shellfish Har-
vesting in Galveston Bay, Texas (EPA, March 1971).
191. During the Florida Power and Light Co. trial, an expert
witness for the Government offered to testify on the effect
defendant's proposed power plant would have on the marine
life in Biscayne Bay, Florida. The defendant objected be-
cause the witness had never been to Biscayne Bay nor had
he conducted any studies of its raarine life. Although the
witness' qualifications in fresh warer aquatic biology were
impressive, he had only recently begun working in the field
of marine biology.
The Government's expert was allowed to testify but the
Court sustained an objection to a question on direct ex-
amination which afaked for his opinion of a study conducted
by someone who was not available for cross-examination.
United States v. Florida Power and Light Co. , supra
note 20, Transcript, pp. 213-54.
192. 33 U.S.C. §407.
193. 33 U.S.C. §§1160(a) and (c)(5).
194. 33 U.S.C. §1161(g).
195. Supra note 41.
196. Id., 3 ERC at 1041.
197. Supra note 18.
198, Supjra note 27, at 73.
199. See, e_.g_._, Standard Pressed Steel Co. v. Astoria Plating Corp.,
13 FR Serv. 2d 33.319 (N.D. Ohio 1969); Cedolia v. C.S. Hill
Saw Mills, 41 FRO 524, 527 (I't.D.N.C. 1967).
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200. 4 Moore's Federal Practice (2d F,d. 1971) 26-264.
201. .§££, e.j?. , U.S. ex re.1., Norwegian Nitrogen Products Co. v.
U.S. Tariff Coirnissioa, 55 Apr. D.C. 366, 6 F.2d 491, 495 (1925),
rev'a on other nroi;r.d^, 27- u'.S. 106 (1927); Oct. 12, 1971
draft proposal of an .''nay Corps of Engineers regulation governing
"Confidentiality of Informal:.ior>. Under Refuse Act Permit Program,"
Section 5(±).
202. 26 F.R.D. 603, 607 (S>, D. Tex. 1960).
203. 52 F.R.D. Ill (N.D. Onio, E.D. 1971).
204. 329 U.S. 495 (1947). (1
205. Id. at 510.
206. Id. at 511.
207. Supra note 204.
208. Advisory Committee's iNote of 1970 as to Trial Preparation:
Materials, (b)(3), r_epr_irrted__in_ Moore's Federal Practice Rules
Pamphlet (1971) at 62'5-27.
209. Advisory Ccr.\nittee' s Mote of 1970 As to Treatment of Lawyers;
Mental Impressions, Conclusions, Opinions, and Legal Theories,
(b)(3), Id. at 628-29,.
210. 4 Moore's Federal Practice (2d Ed. 1971) 26-452.
211. 4-A Id. at 36-41.
212. 5 U.S.C. §552 (Supp. V, 1970), 80 Stat. 250 (1966), codified by
81 Stat. 54 (1967), formerly section 3 of the Administrative
Procedure Act, 60 Stat. 237, 5 U.S.C.§1002 (1964 Ed.), (herein-
after cited as FOIA).
213. K.C. Davis, The Infornation Act; A Preliminary Analysis, 34
Univ. Chi. L. Rev. 761 (1967).
214. _Id. at 762, n.6; Consuiuez-s Union v. Veterans Administration, 301
F.Supp. 796, 799 (S.D.N.Y. 1969).
215. S. REP. NO. 813, 89th Cong., 1st Sess. (1965) (hereinafter cited
as SEN. REP.).
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216. H.R. HEP. NO. 1497, 89th Ccng., 2d Sess.
I 217. Davis, suora ncfce' 213, at 763.
1
218. Id. at 761.
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Tab A
NAVIGABIJS WATERS
\
Prepared November 8, 1971.
This memorandum will discuAs what is meant by the term "navigable
water" as trie same appears, in Section 13, Rivers and Harbors Act
of 1899.
The traditional federal tept for navigability as articulated by the
Supreme Court in Thj_Dam1e^_Bain/ 77 U.S. (10 Wall) 557 (1871) is
as follows: (p. 563)
i
Those rivers must- be regarded as public navigable
rivers in law which are navigable in fact when
they are used, or are susceptible of being used,
in their ordinar/ condition, as highways for
coinuerce, over wi'iich trade and travel are or may
be conducted in the customary modes of trade and
travel on water.'
More recent cases have clarified this rule. The Court in Unitjed.
States v. A^pclachio.!^ Electric Powar Co. , 311 U.S. 377 (1940) in
interpreting the phrase "susceptible of being used, in their
ordinary condition", held that a waterway wh.ich by regsongbl_e
improvement (emphasis supplied) can be made available for naviga-
tion in interstate commerce is a navigable water of the United
States, provided there be a balance between cost and need at a
time when the improvement would be useful. In doing so, the
Court observed: (p. 407)
To appraise the evidence of navigability on the
natural condition only of the waterway is
erroneous. Its availability for navigation must
also be considered. "Natural and ordinary
condition" refers to volo.."e of wcrer, the gradients
and the recular_i t y__of^f low (emphasis supplied).
A waterway, otherwise suitable for navigation, is
not barred from that classification merely because
artificial aids must moke the highway suitable
for use before- corr.^.ercia.1 navigation may be
undertaken, . . . The -district court is quite right
in saying there are obvious limits to such im-
provements as affecting navigability. These limits
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•: 2
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are necessarily a natter cf degree (U^_§_«. v P.io
Grange Irrigation Cc., 17- U.S. 690). There must
be a balar.c- j:etv;-;en cose ur;d need at a time when
the improve:, ctnt would be v-eful.
... Nor is it necessary that the"improvements
should be actually corplixed or even authorized.
The pow^r or Ccr.qrens cvar Commerce is not to be
hampered because of r.he .necessity for reasonable
improve-near s to make era interstate waterway
available for traffic.
... Improvements that may be entirely reasonable
in a thickly populated, highly developed industrial
—region may have been entirely too costly for the - -- - -
same region in the days of the pioneers.
I
It has been held that waters may be "susceptible of being used"
despite the obstruction of falls, rapids, sandbars, carriers,
shifting currents or dams. The Hontello, 87 U.S. (20 Wall.) 430
(1574); Economy Lir-ht S Power Co. v United States, 256 U.S. 113
(1921); X^dcle v Johnson, 24i F. Supp 37~9 (W.D. La. 1965).
The question of the time when reasonable improvements must be made
so as to render the waters "usable cr susceptible of being used"
was raised in jRochester Gas £> Elecjirric__Corp,r v Fe^dera^l Powejr
' Comru^ssion, 344 F, 2d 594 (2d Cir 1965). In that case, the
petitioner argued that the Genesce River is "navigable waters" . .
only where "it is ojjecentj.v being used or is suitable for use in
its-natural or p_r_es_r_ntly improved condition." In rejecting this
limited interpretation and accepting The broader view of the FPC,
the Court observed: (p.- 596) o
The Commission (FPC) relies heavily on United States
v Appalachian Flee eric Povpr_ Comcany. . . There, the
Supreme Courr stated, wirh regard to use or suit-
ability for use in the past: "When once found to be
navigable, a waterway remains so. Even absence of
use over long periods of yecrs, because of changed
conditions, the coming of the railroad or improved
highways does not affect the navigability of rivers
in the constitutional sense." In the same passage.
the Supreme Court stated, with respect to suit-
ability for use in the ;^turjc: "In determining the
navigable character of a river it is proper to con-
sider the feasibility of interstate use after
reasonable improvements which might be.made. Nor
is it necessary that the improvements should be
actually corrpletc-d or even authorized.
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The Court th.cn, held that the portion of the Genesee River in *
question was G navigable body of water where evidence indicated
that it had been used fron 1312 to 1?-40 by settlers who had
floated rafts carrying potash,, p<, arlaon, wheat and lumber by
river to Rochester, I\CM York. In d:;i-,,g so, the court stated
that a body of water is nc.vigab.le if i\r meets any of the fol-
lowing tests:
(1) it presently is bring u^ed or is sxxitable for
use, or
(2) it has been used or was suitable for use in the
post, or
(3) 'it could ba made suitable for use in the future
by reasonable improvements.
This test for susceptibility of use is the one generally followed.
The outcome of Roches T er Gas j> E1 ec tr_rl c_ Cor p. v Federal Power Com-
mission, suora. , was not affected by the fact that The water in
question was found wholly in one state. The court observed: (p. 597)
Petitioner also contends that there is no evidence
that the goods shipped down the river entered into
interstate or foreign commerce'. Perhaps the
Commission was justified in inferring that some
of these goods eventually must: have crossed state
__ - - or national boundaries. In any event, we agree
with the Commission that acTual use of a river
f_or_intras_tat_e shipr.ants denioni;trares its _.- ...
S r.ui tabil i_ty for _u_s e as a connecting waterway for
/ " interstate or foreign shiprv'crvrn. Especially is
this true where the river runs directly into *
acknowledged avenues of interstate or foreign
conferee, here, the Erie Canal and Lake Ontario
(emphasis supplied).
• " *
The question of what is meant by "used ... as a highway of commerce,
over which trade or travel are or may be conducted. . .' in the cus-
tomary modes of trade and travel on water" has also been dealt with
by the courts. According to United States^ v Appalachian Powejr _C_o_._,
supra. , "vice" of a waterway is to be broadly defined for federal
jurisdictional purposes. The court in that case observed: (p. 409)
Nor is it necessary for navigability that the use
should be continuous. The character of the region,
its products and the difficulties or dangers of the
navigation influence the regularity and extent of
the use. Small traffic compared to the'available
commerce of the region is sufficient. Even absence
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< . --
of use over Icny periods c£ years, because of
changed conditions, the cording of the railroad or
improved hic'h.vciy;; does not: affect the navigability
of rivers ii: the constitutional sense.
The Court further stated that lack of commercial traffic does not
prohibit the rating of a waterway as a navigable water where
personal or private use by boats shcwr. the availability of the
waterway for the simpler types of ccnuT.crcial navigation.
The most recent federal case on this point is Utah v United States,
39 U,S.L.W. 4717 (U.S. June 7, 1971). In that case, the Supreme
Court held that the Great Salt Lake was navigable. In doing so,
the Court observed: . (p. 4717)
The United States strongly contests the finding of
the Special Master that the Great Salt Lake was
navigable. Although the evidence is not extensive,
we think it is sufficient to sustain the findings.
There were for example nine boats used from tine-
to-tip.e to hatil cattle and sheep from the mainland
to one of the islands or from one of the island to
the itainlarid* The hauling apparently was done by
the owners of the livestock, not by a carrier for
the purpose of maVinq money. Hence it is suggested
. - that this was not the use of the lake as a
.
highway in the customary sense of the word. That
is to say, the business of the boats was ranching
and not carrying water-borne freight. We think
that is an irrelevant detail. The^Jlcke was used as_
ah ighway and _thgt_ is the gist of the fe cteral te s t .
i, ' "**•»•
It is suggested that the carriage was also limited
in the sense of serving only the few people who per-
formed ranching operations along the shores of the
lake. But that again does not detract from the
basic finding that the lake served as a h5.qhwav and
•^ »».,.. -rf>it. ii I,, i.ii.^n^
it is that feature that distinguishes between
navigability and non-navigability.
There was, in addition to the boats used by ranchers,
one boat used by an outsider who carried sheep to an
island for the owners of the sheep. It is said that
one sheep boat for hire does not make an artery for
commerce; but one sheep boat for hire is in keeping
with the theme of actua_l_ navigability^ which the
waters of the lakn had in earlier years.'
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Moreover, the Court urheld the fincln:: of the Master that the
lake "could have floated cr.d cffcreed passage to large boats,
barges, and similar craft currentIv in general use on inland
navigable bodies cf v;a-;er in the United States." (at p. 4718).
The federal test for navigability ic. not without its limita-
tions. See Johnson v V£2l!--'-:]£-l' ~~7 ^- Supp. 135 (D. Ore. 1964)
where the Court held.that a smll inland body of water in the
State of Oregon known as Lake cf rhe Woods did not constitute
"navigable waters" of the United States. This lake was, at its
deepest point, fifty feet, but it measured only one r.ile in
width end three niles in length and its points of ingress and
egress were non-r.cvigable creeks which rerr.ained dry half the
year and were strewn with boulders and overgrown with trees and
.shrubs. More irportantly, however, there was no evidence (aside
from, its depth) which would indicate its capacity for use in
commerce. The lake is located far from any major cities or
populated areas. This factor would be considered in evaluating
the "reasonableness1' of improvements. See also In re K&ller's
Petition, 149 F.' Supp. 513* (D. Minn. 1956) where the Court-
upheld the lower court's determination that Lake Nipigon, a
lake of substantial size and depth, located in Ontario Canada,
and connected to Lake Superior by a non-navigable river could
not be considered as a "navigable river." But, in so holding,
the Court observed: (p. 516)
"" The Nipigon River is not water in or of the United
States. Commerce never has been carried on over
this highway with the United States in the past,
t. ' and obviously by reason of the dams now constructed,
'• commerce never will be carried on the river with the
United Stater, in the future. See Madole- John son,
241 P. Supp. 379 (1965). A lake forced by a dam
built acrosr, a river which had been navigable in its
natural state cr.d on which there were two other dams
with no lakes or other conveyance available for
transporting water craft around the clams was a nart
of the navicable water of the United States.
The Constitutional concept of navigability as to
American waters should not be extended to foreign
waters in absence of a showing that the foreign
waters are actually an artery of water commerce
with the high sea or the Great Lakes. Otherwise
the jurisdiction of the United States Courts in
admiralty would prevail on foreign waters who^Ty
unrelated to commerce with the United States.
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This language would se°n to effectively lirr.it the case to its
fccts. See clso the following cciir.es: Fit. ^hip Duck Cl\ib v
Town of 5 ecu jr., 315 F. Supp 309' (W.l:.. Wash." 1970) where the
Court held, that a Ice rcn suitable. only for use as a route of
access to duck hunt ire- property wa- not a "navigable water.";
Georcre v Beavark, Inc.', ,' '-02 F/2~ ?77 (8th Cir. 1968) where
the Court held that .he ccnduc ti: or of float fishing traps on
the river in flat bo; to™, beats which drew only two to six
inches of water did not constitute such cor^erce and trans-
portation so as to characterize the streara as navigable, The
Court observed that: (p. 979)
Float fishing. ... is nothing more than pleasure
- — fishing ... Float fishing in this area is popu-
lar as it lends itself to a pleasurable as well
as scenic adventure. Such pastiir.e, however,
standing alone is too fragile a basis to support
a holding of legal navigability, absent any
evidence of a channel of useful purpose to
trade or commerce.
You have also requested our view as to the scope of federal auth-
ority over navigable waters - whether such nnthcrity is, in fac+ ,
cs broad as the coi-^.ercc clause would, allow.
" The TOv.'er of the federal cove.rnr~.ent to recrulate matters aff ectincr
its waters arises frorr. the conr-ierce clause of the United States
Constitution. It was decided, early in our history, that this
t>ower included cower over naviaation, Gibbons v Cad_e_n, 22 U.S.
- (9 Wheat.) 1 (132^-). Since that tine, the scope of federal power
to regulate interstate commerce has been greatly broadened to in-
clude oower to reculate natter:; havinct no itiore then remote effect
uoon interstate conrorce; see K <~_t zenba ch v "c C 1/uncr , 379 U.S.
2?4 (1964); Heart of A';lcnta Xo'tol v United' States, 379 U.S. 241
(1964); Vick2rc v FVlburri, 317 U.S. Ill (1942). It has been ob-
served thai the power of the federal governnent to regulate
r.atters affecting warcrs within its jurisdiction is as broad as
------ the ccmerce clause. See United States v Aopjalc ^ chian E 1 e c t r i c
Co. , sup_ra. , whe?-e the court observed: (p. 426)
As respondent soundly argues, the United States
cannot by ceiling a project of its own "a
multiple purpose dan1' give to itself additional
powers, but equally truly the respondent cannot,
by seeking to use a navigable waterway "for power
Qenera^lon olcn^ , c.vo~ '^ J'he authority of the
Government over the stream.. That authority is
' ~ ~'" iTT'' '
suppliou) Water tvowar deveiop:r'.r;nt f^'om daias
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in navigable -~ vv;ci:7.,5 is £ roru 'the public's
standpoint £1 Jil-'-^JL0 iii£r Ji^_,ill2 .
.
the_ river s^jf ^r _c?-rr-.orce . (er.pnasis supplied)
Kelying on the above c-re or.-." there earlier cited, the argument
cculd seriously be cdv-r.rca todr.y that a discharge of refuse into
waters within ledernl jurirdi^ticr. fror. industrial facilities
which manufacture procures likely to be sold in interstate
corrjnerce "is from the public's s ^anc^oint a by-product of the
general xisc of the river.-:, for co'—Merce" and is therefore subject
to federal regulation r^fjcrcles.s of whsther the discharge, in
fact, has an adverse effect on naviyation.
J •
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Tab B
NAVIGABILITY IN FACT AND NAVIGABLE V^IERS OF THE UNITED STATES.
Prepare--! Deceirier 28, 1971
This memarandura will discuss a distinction which is of im-
portance in establishing jurisdiction under Section 13 of the
Rivers and Harbors Act of 1899 (33 IJ.S.C. §407). Section 13 makes
unlawful discharges of refuse matter, not authorized by an Army
Corps of Engineers permit, "into any navigable water of the
United States." This statutory prohibition extends only to
"navigable waters of the United States"'and not to all waters
which are r.avigrJble.
In contrast, enforcement jurisdiction under Section 10(a)
of the Federal Water Pollution Control Act (33 U.S.C. §1160(c))
is not as restricted. "The pollution of interstate or navigable
waters in or adjacent to any State or States" is, under certain
circumstances, "subject to abatement." This provision establishes
federal jurisdiction to abate the pollution (1) of interstate
waters whether or not they are navigable and (2) of intra- and
interstate navigable waters. Given the disclaimer of Federal
jurisdictional preemption in Sec. l(c), the States' "primary
responsibilities" language in Sec. l(b), and the scope of Congress1
navigational authority under the commerce clause (Art. I, Sec. 8),
query whether it would be constitutional to assert Federal
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jurisdiction, under FW?C*i 210(a), over navigable/ intrastate waters
which are not also navigable waters of the United States.
All of the other j~risdicticnc! sections of the FWPCA make
no mention of interstate waters:
Section ll(b)(7.) -- The discharge of oil into or upon
the navigable waters of the United States, adjoining shore-
lines, or into or upon the waters of the contiguous zone....
Section 12(d) -•- Whenever any hazardous substance is
discharged into or upon the navigable waters of the United
States or adjoining shorelines or the waters of the
contiguous zone....
Section 21(b)(l) — Any applicant for a Federal license
or pernit to conduct any activity including, but not limited
to, the construction or operation of facilities which may
result in any discharge into the navigable waters of the
United States, shall....
See also, Sections ll(c)(l), (d), and (e), and 12(a), and 13(b)(l).
DISCUSSION '
In its landmark decision of Gibbons v. O~den, 22 U.S. (9 Wheat.)
1 (1824) the Supreme Court held that the. commerce clause empowered
Congress to regulate navigation.
The power of Congress ... comprehends navigation, within
-. the limits of every State in the Union; so far as that
navigation rtay be, in any manner, connected with 'commerce
with foreign nations, or among the several States, or with
the Indian tribes. ' (JM. at 87)
What is this power?
It is the power to regulate; that is, to prescribe the
rule by which cc,Timerce is to be governed. This power, like
all others vested in Congress, is complete in itself, may
be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the- constitution.
(Id. at 86)
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The Court later added that na.vigc.ble v/oters which could be regulated
by Congress under the commerce clause-are, for that purpose, "the
public property of the nation,.1'" Gil^a."1 v. Philadelphia,. 3 Wall. 713,
724 (1865). .;.!.•
In an earlier opinion, the Supreme Court noted, by way of an
historical aside, that the authority to regulate navigation was held
and then relinquished by the orig-inal states to the Federal government.
When the revolution took placa, the people of each
state became themselves sovereign; and in that character
hold the absolute right to all their navigable waters,
and the soils undsr then, for their own common use,
subject only to the rights since surrendered by the
constitution to the general government.
Martin v. Waddell , 41 U.sT (16 Pet.) 234, 263 (1842).
Actual navigability became the. test used 'by the Supreme Court to
determine whether thf United States or'an individual state owned in-
"land submerged lands. For the original' thirteen states, a finding of
navigability at the time of the formation of the Union is dispositive;
for all other states the relevant time is their respective dates of
admission. The application of ,this title-determination test was
described, by the Court in some detail in United States v. Oregon,
•s
295 U.S. 1, 14 (1934):
(U)pon the admission of a State .to the Union, the
title of the United States to lands underlying navigable
waters within the States passes to it, as incident to
the transfer to the State of local sovereignty, and is
subject only to the paramount power of the United States
to control such waters for purposes of navigation in
interstate and foreign commerce. But if the waters are
not navigable in fact, the title of the United States to
land underlying them remains unaffected by the creation
of the new State. Since the effect upon the title to
such lands is the result of federal action in admitting
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a state to the Unior, the question, whether the waters
within the State vmJ.er which fhe lands lie are navigable
or non-navigable, is a federal,, not a local one. It is,
therefore, to be determined according to the law and
usages zeccyr.lved er.d c-:plici in the- federal courts,
even though as in the prer-tnt case, the waters are not
capable of use for navizr-t ion in interstate or foreign
commerce. (Citations omitted. )
In a very recent decision, the Supreme Court ruled that, for
purposes of ascertaining title to inland submerged lands, actual
or potential interstate ccrar.erce is not essential to a finding of
navigability in fact. Utah v. United^_Sta_tes, 39 U.S.L.W. 4717
.(U.S. No. 31, June 7, 1971). At issue was the title to the lands
*
underlying the Great Salt Lake. The United States objected to
the Special Master's finding of navigability, at the time of Utah's
admission to the Union, on the ground that the Great Salt Lake had
not been used, as a "highway for comitierce." (See discussion *of
The Danie1 Bal1,'infra, p. ). "The Court responded:
(T)he fact that the Great Salt Lake is not part
of a navigable interstate or international commercial
highway in no way interferes with the principle of
public ownership of its bed.
• • • •
The lake was used as a highway and that is the gist
of the federal test,
• • * *
(T)he lake served as a highway and it is that feature
that distinguishes between navigability and non-navigability.
(Id. at 4717-18.)
The Court's 1971 opinion merely clarifies the position it took forty
years earlier in a suit to quiet title to three Utah riverbeds brought
by the United States. Citing The_ JDan, i e 1_ JBa 11^, infra, and The Monte Ho,
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•> 5
87 U.S. (20 Wall.) 430 (1Q7<)t the Court stated the legal issue
as follows:
The question of navigrfMl.lty is thus determinative
-of the controversy, end that it -a federal quest-ion.
This is so, although it ii: undisputed that none of the
portions of the rivers uirlei consideration constitute
navigable waters of the Lnited States, that is, they
are net navigable in interstate or foreign commerce,
and the question is whether -ch'zy are navigable waters
of the State of Utah. United .States v._Utqh, 283 U.S.
64, 75 (1931).
*n The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871) the~ Court
adopted what have since been the classic tests -for determining the
existence of both "navigability" and "navigable waters of the
United States." Navigability is an attribute of those waterways
C
which "are navigable in fact when they are used, or are susceptible
of being used, in their ordinary condition, as highways for commerce,
.over which trade and travel are or racy be conducted in the customary
modes of trade and travel "on water." (Id. at 563) The Court then
stated that waterways found to be navigable in fact would
...constitute navigable waters of the United States
within the meaning of - the acts of Congress, j.n
contra-disrincrion from the naviaable waters of the
States, when they form in their ordinary condition
by themselves, or by uniting with other waters, a
continued highway over ivhich commerce is or may be
carried on v.'ith other States or foreign countries
in the customary modes in which such commerce is con-
ducted by water. (.Id, ) (Emphasis added, )
Applying this two-pronged test, the Court concluded that Michigan's
Grand River was a navigable water of the United States.
(T)he stream is capable of bearing a steamer of
one hundred end twenty-three tons burden, 'laden with
merchandise and passengers, OG far as Grand Rapids,
a distance of forty miles xroia its mouth in Lake
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a continued highway for cc:~s?-zr-~e, and is thus brought
under the direct control cf Congress in the -exercise
of its commercial power. (.Jd« at 564)
The next issue v;as whether, for the sa'ke of jurisdiction, it was
necessary that the respondent have been engaged in interstate
carriage. The Court held that it was inefficient that the goods
transported by the respondent were to be moved from one State to
another.
• ' So far as she (the stearner, The__Daniel Ball) was
employed in transporting goods destined for other
States, or goods brought from without the limits of
Michigan and destined to places wixhin that State,
she was engaged in coirjnerce between the States, and
however limited that commerce raay have been, she was,
so far as it went, subject to the legislation of
Congress. She was employed as an instru.rr.ent of that
commerce; for whenever a commodity has begun to move
as an article of trade frora one State to another,
commerce in that cornr.dity between the States has
commenced. The fact that several different and inde-
pendent agencies are employed in transporting the
- - commodity, some acting entirely in one State, ... does
in no respect affect -the character of the transaction,
it is subject to the regulation of Congress. (Id. at
565)
o
Three years after the test in The Daniel Bell was announced,
the Court held that an originally navigable waterway which is made
non-navigable by natural or human causes nevertheless remains
navigable as a matter of law. The Hontello,. 87 U.S. (20 Wall. )
430, 441-442 (1874). This rule was followed in Economy Light £>
Power Co. v. United States, 256 U.S. 113 (1921) and in Madole v.
Johnson, 241 F.Supp. 379 (W.D. La. 1965). See also, Morrisson-
Knud-^n Co. v. O'Leary, 288 P. 2d 542 (9th Cir. 1961') which upheld
admiralty jurisdiction over a diversion tunnel carrying a portion
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of the navigable waters of the Snake River around a damsite.
In an 1899 dictum, the Supreme Court stated that the United
States could assert jurisdiction OVUT r.on-navigable tributaries of
navigable waters il the former were used, under State law, in
a way that diminished the navigable capacity of the latter.
The Hudson River runs within, the limits of the State
of New York. It is a naviucble stream and a part of the
navigable- \;aters of the United States, so far at least as
froia Albany southward. One of the streams which flows
into it and contributes to the volume of its waters is
the Croton River, a non-navigable stream.... Un-
questionably the State of flew York has a right to
appropriate its waters, unless thereby the navigability
of the Hudson be disturbed. On the other hand, if the
State of New York should, even at a place above the
limits of navigability, by appropriation for any domestic
purpose, diminish the volume of waters,, which, flowing
into the Hudson, make it a navigable stream, to such an
extent as to destroy its navigability, undoubtedly the
jurisdiction of the National Government would arise and
its power to restrain such appropriation be unquestioned..
United States v. _P.io Grgr.de Dam and__Irrication Co. ,
174 U.S. 650, 709 (1899). ' ...'.. . .
Carrying this reasoning one step further, the Court held in 1941
•- that Congress could regulate non-navigable tributaries so as to
preserve the navigable capacity of their receiving waterways.
(I)t is clear that Congress may exercise its con-
trol over the non-navigable stretches of a river in
order to preserve or promote commerce on the navigable
portions. fc
« • • •
(W)e now add that the power of flood control ex-
tends to the tributaries of navigable streams.
Oklahoma v. Guv F. Atkinson Co. , 313 U.S. 508 (1941).
(Citations omitted)
The Court, in a subsequent opinion, neatly side-stepped the Govern-
ment's contention that the federal navigational servitude extends
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In
to non-navigable waters as well, preempting property rights in such
waters created under State low:
In the view we. ta\:e in thic case, however, it is
not necessary that wi reach that contention. Con-
gress by the ('"locd Control; .Act "(of August 8, 1941)
... adopted as cne work of improvement 'for the.
benefit of navigation and r;he control of destructive
flood waters' the reservoirs in the Grand River (a .
non-navigable tributary of the navigable Arkansas
River). That action, to protect the 'navigable
capacity1 of the Arkansas River ... was within the
constitutional power1'of Congress.
United States v. _Grcn_d__Hj.ve^r_ pani Authority, 363 U.S.
229, 232 (1960). ;
The Donie_l_ Ball navigability test has been followed in admiralty
end maritime cases as well as'1 in commerce clause statutory cases,
i
especially and most frequently those under the Federal Power Act
n
. (16 U.S.C, §791 (a) et jseg;. ) • '. The latter was the basis of the
I
leading case of United States v. Appalachian Electric Power Co. ,
. 311 U.S. 377, 426 (1940) in which the Court expanded the concept • •
of navigability in fact by holding that "the feasibility of inter-
•- state use after reasonable improvements which might' be made" is a
proper consideration in determining the navigable character of a
" waterway. (Id. at 409) For an improvement to be reasonable,
"(t)here must be a balance between cost and need at a time when the
•
improvement would be useful,... (It is not) necessary that the
improvements should be actually completed or even authorized."
(Id. at 407-408)
In announcing the new rule, the Court took care to re-affirm
the old rule that "once found to be navigable, a waterway remains
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so," (Id. at 408) even though use of the waterway as- a highway for
conferee has been discontinued. (Icl" 'at 409) The Court explained
that the potential for future navigability is a sufficient predicate,
under the ccrr.ir.erce clause, for Congressional regulation.
Although navigability to fix ownership of the
river bed or riparian right is determined . . . as • .
of the fornation of the Union in the original
states or the admission to statehood of those formed
later, navigability, for the purpose of the regu-
lation of commerce, may later arise.... The
plenary federal power over commerce is the reason
for its existence. It cannot be said that the
federal power over navigation is enlarged by the
improvements to the waterways. It is merely that
improvements make applicable to certain waterways
the existing power over commerce. (.Id. at 408-409)
* •
Notwithstanding this last semantic distinction, the effect of an
actual or potential improvement is to increase the geographic ex-
. tent of Federal navigational jurisdiction. In view of the once
navigable always navigable rule, the National" Government's"
navigation bailiwick can never grow smaller; it can only expand.
The Second Circuit recently identified three constituent
elements of the App a 1 a ch ian navigability- in-fact test. A waterway
is navigable in fact if
(1) it presently is being used or is suitable for use, or
(2) it has been used or was suitable for use in the pa s t ,
or
(3) it could be made suitable for use in the future by
reasonable improvements.
Rochester Gn-, end Electric Corp. v. Federal Power Commir.
^
344 F.2d 5?4, !>•>& (2d Cir. 1965), (Eir.phasis 0.11 the original)
The Court agreed with the Commission that "actual use of 'a river for
intrcstcte shipments demonstrates its suitability for use as a con-
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10
ncctir.q waterway for inter sto';e or foreign shipments." (Id. at 597)
This cor.T.ent was qualified, however, by the observation that such
o finding is justifiable if Vhere is in the vicinity a recognized
hir.hway for inter. state cortui.ctce to which the intrastate body of
water could bscome connected.
i ,
Especially is t;'ii,s true where the river runs
directly into acknowledged avenues of interstate
or foreign commerce, here the Erie Canal and Lake
Ontario. (Id.) ,,
Notwithstanding actual navigability, a waterway cannot be a
i
navigable water of the Unitec; States if it was not, is not, or
could not be used as a highway for coianerce. A body of water which
attracts nothing bur duck hunters is not commerce for nav5.gational
jurisdiction purposes. Pits'^iip Duck Clubby. _ Town of Se auxin, 315
F.Supp. 309, S10 (V.D. Wash. 1970). The suitability of the Wisconsin
River for use as a commercial highway was demonstrated by evidence
"that from 1335 to 1897 some 3 billion board feet of white pine was
taken out of the State of Wisconsin down the Wisconsin River 'to
market ' on the Mississippi River from Dubuque, Iowa to St. Louis,
Missouri." Wi sc o r. s in_ Publ i c 5 er v i_c_e Cor o r a t i o n v . Fed e r a 1 Powp r
Co^.ispion, 147 F.2d 743, 745 (7th Car. 1945), cert. den. 325 U.S.
£50 (1945). (Enphasis added.) However, th'e fact that logs could
be floated on a waterway is not sufficient without evidence that
the waterway is or could be a link in a commercial network.
Although the waters of Lake of the Woods are in
fact naviaable for srv.ail boats and the waters of the
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lake might be susceptible to Use for commercial
purposes, such as t'.ie transportation of logs or
other commodit i<_-r>, fro IT. oac side or end of the
lake to the other, ,the fact remains that there
is no outlet frou this bc.'iy of water to upper
Klamath Lake which could Le considered navigable
in fact, nor made susceptible- to navigation by
any reasonable improvement.
• * * « '''
(S)iriall bodies of water, vholly in one state
and not navigable in interstate or foreign water
commerce, are not included in any common sense
definition of 'navigable waters of the United
States.'
Johnson _v. V/urthman, 227 F.Supp. 135, 137-138
(D.Ore. 1964). "" '
To obtain' commerce clause or admiralty jurisdiction, it is
not necessary that the waterway in question be located in the
U'*-% ~ 4- nA C-*-r--*-o«™
*^j.*.e^ Oia<-eo»
»'
(R)ivers connected with the Great Lakes, . . . even
though lying in the' Dominion of Canada, which are
navigable in fact end hichyays of _commerce, may come
within the Constitutional grant of admiralty.
In re Keller's Fetiticn, 149 F.Supp. 513, 516 '
(D. Minn. 1956) (Emphasis added).
In this case the issue was the navigability of Lake Nipigon which
is located entirely in Ontario, Canada but is connected to Lake
Superior by the Nipigon River. Although there had been considerable
intra-Car.adian logging traffic on the river, "(t)here (was) no
showing that any of the logs or pulpwood (we)re carried or trans-
ported into any American waters," (_Id. at 515.) And, none of the
cases on navigability, whether arising under the commerce or the
admiralty clauses of the Constitution,
...have intimated that a river in a foreign land, which
is not now navigable in fact and .which has never been
used as a highway of commerce between the United States
uud the foreign country and never will ba susceptible
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of such ccrrjnercc, can be considered as a navigable
river within the Constitutional concept of admiralty
jurisdiction. (2L1* ct 517}
Because there had never been any co~,rn?rcial intercourse between
Canada and the United States via the Hipigon River, the Court
found that Lake Nipigon wo,? not a "naviqable water of the United
States."
Only one Federal court has suggested that, in addition to
navigation, the corrjnerce clause authorizes Congress to regulate
pollutional discharges to navigable waters of the United States.
§O
313 and 16 of the Rivers and Harbors
Act of 1899, the First Circuit observed that
• *
(t)he power of the federal government ever the
navigable waters of its ocean harbors is absolute,
general, and without limitations, except such as are
prescribed by the Constitution; and in the exercise
of such pcwer,... in the interest of sanitation and
health, and of the general welfare, it may well pro-
• tect its public waters from pollution." Scow No. 36^ " ~"
y. United States, 144 F. 932, 934 (1st Cir. 1906).
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• " APPENDIX
The following two provisions of the Federal Power Act are
the bases of each of the Federal Power Commission cases on
navigability:
16 U.S.C. §797 General powers or commission.
The commission is authorized and empowered —
• • . •
(e) To issue licenses ... for the purpose of constructing,
operating, and maintaining dams, water conduits, reservoirs,
power houses, transmission lines, or other project works necessary
or convenient for the development and improvement of navigation
and for the development, transmission, and utilization of
power across, along, from, or in any of the streams or other
bodies of water over which Congress has jurisdiction under
its authority to regulate commerce with foreign nations and
among the several States.... Provid e_d further, that no license
affecting the navigable capacity of any navigable waters of
the United States shall be issued until the plans of the dam
or other structures affecting the navigation have been approved
by the Chief of Engineers and the Secretary of the Army.
Whenever the contemplated improvement is, in the judgment
of the commission, desirable cr.d justified in the public inter-
est for the purpose of improving or developing a waterway or
waterways for the use or benefit of interstate or foreign
commerce, a finding to. that effect shall be made by the commission
and shall become a part of the records of the commission....
16 U.S.C. §796(8) '(N)avigable waters' means those parts
of streams or other bodies of water over which Congress has
jurisdiction under it authority to regulate commerce with
foreign nations and among the several States, and which
either in their natural or improved condition notwithstanding
interruptions between the navigable parts of such streams
or waters by falls, shallows, or rapids compelling land
carricge, are used or suitable for use for the transportation
of persons or property in interstate or foreign commerce,
including therein all such interrupting falls, shallows,
or rapids, together with such other parts of streams as
shall have been authorized by Congress for improvement by
the United States or which "hove been recommended to Con-
gress for such improvement after investigation under its
authority....
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Tab C
TRIBUTARY DISCHARGES AND THE BURDEN OF PROOF UNDER THE REFUSE ACT.
Prepared January 11, 1972
Under section 13 of the Rivers and Harbors Act of 1899 (33 U.S.C.
C-C7), it is net unlawful tc discharge refuse without a permit.!/
into a tributary if said refuse dees not rsach a naviagable water-
way. The "float or be washed" limitation is, therefore, a necessary
•precondition to Federal jurisdiction over tributaries under the
Refuse Act, whether invoked in a criminal prosecution or in a civil
suit. For the plaintiff in a civil suit, the burden of proof is
to establish this jurisdictional elcraent by a preponderance of the
evidence, i.e., it is rr.ore likely than not that the discharge to
the tributary reached a navigable waterway.
In a crir.inal action, however, the "float or be washed" limitation
is raore than jurisdictional; it is fundamental to the existence of
a £L2£2iLs E-SiiSJli' "t^ia't is, that a crime has been committed. As
with all ether elements of the offense, the prosecution bears the
burden of establishing the corpus;, delicti beyond a reasonable doubt.
(22A C.J.S. C^inir,al_ Law 312. )
Although There is no direct authority for the proof beyond a
reasonable doubt standard in criminal cases, the Supreme' Court
recently asserted that it has become a constitutional requirement
because cf historical acceptance and because it is sound policy.
In re Vir^hip, 397 U.S. 358, 361-364 (1970). This standard was
unec-ai vocally accepted and espoused by the Court as far back as
1895:
Strictly speaking the burden of proof, as those
words are understood in criminal law, is never upon
the accused to establish his innocence or to disprove
the facts necessary to establish the crime for which
he is indicted. It is on the prosecution from the
I/This n.e~oranduni ignores the decision in Kalur ard Large v. Resor,
3 E.R.C. 14=5 (D.D.C. 12/21/71) which enjoined the issuance of Re-
fuse Act permits authorizing the discharge of refuse matter into
non-navigable waterways.
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beginning to the end of the trial and applies to every
element necessnry to ccm-Titure the crime.
Davis v. ll.-it;d States, 360 U.S. 469, 487 (1895).
If the defendant is a non-corporate person, any shifting of this
burden by neans of a stature: y or judicial presumption is vulnerable
to attack as an abridgment of the flfrh amendment privilege against
self-incrimination.
The net effect if a presumption affecting the burden
of persuasion in a';,criminal case... is to change the
jury's view of the basic question from 'Does the evidence
establish the presviaed element beyond any reasonable
doubt1 to 'Does thy, evidence raise any reasonable doubts
as to the existence of the presumed element?' While
these two decision, making tests are logically equivalent,
there is a definite, difference. When no evidence is
produced by the defendant the jurors have little to look
to in order to finu reasonable doubts, and it is likely
that they will find none. In this situation the legis-
lative statement a., to the weight of the basic fact has
a profound practical influence on the decision making
of the jury. By looking fcr reasonable doubts rather
than for proof beyond a reasonable doubt, the jury is
much more likely t<» draw inferences of guilt frora the
silence of the defendant.
The issue of the silent defendant is ...relevant to
the broad issue of presumptions affecting the burden of
production. Because of the procedural effect of a burden
of production, a presumption causing the defendant to go
forward with evidence is unconstitutional in criminal
cases. The unconstitutionally results if the defendant
does not meet his burden. If the burden is fulfilled, as
determined by the court, the presumption drops from the
case end is never mentioned to the jury. But if the
burden is not met, the issue of the existence of the
presumed fact is foreclosed against the defendant and
the judge must direct a verdict on that issue. A
presumption imposing a bt:rden of production, then, is
equivalent to a conclusive presurrorion once the de-
fendant chooses not to produce rebutting evidence.
This would completely relieve the prosecurion of the
burden of proving the presumed element and, more im-
portantly, would deprive the jury of the opportunity to
apply the constitutionally required reasonable doubt
standard. This unconstitutional effect of presumptions
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which effect the burden of production is undoubtedly
the basis for the consistent treatment of presumptions
in criminal cascr ar, aff ...cr: rr only the burden of
persuasion.
Co mm e n t, _S t_c tut- rrv Cri r* r ;; al Presumptions; Reconciling
the_ ^acticc:! >;^t;i ~ne_ S—y -crncjr, 16 UCLA L. Rev. 157,
160-61 (T970).
In addition, informing the jury that the defendant must present re-
buttir.g evidence in order tc overcc,:.-.; the presumption may constitute
an ur.consti-tuiicr.cl cc:r_-.;-r.t cr. the cef -rniant' s failure to testify.
Statutory criminal presumptions are subject to two more constitutional
objections: (1) that the basic requirement of due process is violated
by the legislature in presuming one fact from another; (2) that the
reasonable doubt standard of proof is reduced to a "more likely than
not" standard which infringes The defendant's sixth amendment right
to have a jury rr.cke an independent determination of his guilt.
(Id. at 164) These same constitutional objections would be equally
applicable to any judge-made criminal presumptions, e.g., that refuse
discharged to a tributary is presumed to float or be washed to a
navigable waterway.
Although it would be necessary in Refuse Act prosecutions to prove
the "float cr be washed" limitation beyond a reasonable doubt, such
proof could be made either by direct evidence or by a combination of
direct and circumstantial evidence.
(A)ny fact or facts which become material in a crim-
inal prosecution may, as a rule, be established by cir-
cumstantial as well as by direct evidence. This applies
• to the ultimate fact of guilt which need not be shown
alone by direct evidence, but nay be shown by circum-
tial evidence in connection with other evidence.
• • • .
The fact sought to be proved or the conclusion of
guilt need not necessarily follow from the circumstances
'in proof; it may be obtained therefrom by probable or
reasonable deduction or inference but the inferences
drawn must be consistent with the fact sought to be
proved and wholly inconsistent wi-ch any other reason-
able inference to the contrary....
« * . .
In probative force, circumstantial evidence is intrin-
sically like direct evidence, and not inferior thereto.
• * * *
The test of the sufficiency of the circumstantial
evidence has been ... whether it excludes every reason-
able doubt of the accused's guilt.
22A C.J.S. Criminal Law, 551-554, 559-560.
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he First Circuit disagrees with Cc -"cu?_ Juris on the last of the
foregoing genarulizaticr.:-: "The- is no ^erit in... (its) contention
•that to su'.rccrt a convict J cri upon circr,r;,;-,tar;tiai evidence every
reasonable hypothesis ii.-.-u.isi^tenr with cuilt ir.ust be excluded.
(Cases cited'.)" Pi rrir/i v. JJ-- t^ci S-rr-^r , 328 F. 2d 512, 515 (1st
Cir. 1964), On the issuo of v..ulv.ipi« inferences, the Court -stated -
that
the' question is. . .whether the total evidence, including
reasonable inferences, when put together is sufficient to
varrcnt a jury tc conclude vhat defendant is guilty beyond
a reasonable doubt. If enough pieces of a jigsaw fit to-
gether the subject may be identified even though soir.e
pieces are lacking.
Based on the foregoing, it would appear that, the closer a tributary
discharger is to the receiving navigable waterway, the more circum-
stantial evidence could be relied upon to prove the "float or be
washed" condition beyond a reasonable doubt. For example, direct
evidence, c~her than of the fact of a discharge to a tributary, would
not be needed if the contaminant was non-degradable, the point of
its discharge was one nile iron the navigable waterway, there were
no intervening discharges, diversions, or cbstructipns, and there
was a continuous streanf low. " Sampling for the refuse up to and into
the navigable water would be unnecessary. Reasonable doubts could
.be dispelled by expert testimony as to the behavior of the discharged
substances in water, stream low records for the tributary, and a
map showing that the tributary in question flows into a navigable
body of water. In contrast, much no re sampling evidence would be
needed in the case of a tributary discharge originating 50 miles from
a navigable waterway, especially if there are intervening dischargers,
interruptions in strearaf low, and/or the refuse matter is degradable.
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Tab D
180- DAY r:or:cE
^« ?re?cra'^ 4°P ., j.°^_ g .^30- I'!QV Notice Hearing,
1. Prior to sending ov.t a 1C 0-day notice, a technical report
should be prepared, set'. ina forth in detail the data supporting the
finding of pollution,, or. a cny other circumstances on which the
enforcement action is based.
2. Once it has been determined rhat a 180-day notice is justi-
fied, a letter should be sent to the discharger advising of the
nature of the violations charged, and indicating that if proper
remedial measures are not instituted within 180 days, the discharger
will be subject to enforcement action as provided by statute. This
letter should not be a fora letter but should set forth clearly the
reasons for the action (such as missed1 deadlines, refusal to cooperate
etc).
3. An informal public hearing should be promptly arranged with
the discharger, and at least ten days before the hearing the technical
report on which EPA relies should be furnished to the discharger for
review.
B. Conduct of the Hearing
• " 1, The informal hearings are held in public.
2. The direct parties to the hearing are EPA and the discharger
cited for the standards violation. The State and interstate agencies
involved may participate. Other interested parties such as conserva-
tion or citizens groups are given the opportunity to speak at the
informal hearings as long as their statements are pertinent to the
problems under consideration.
3. If possible, the head table should be arranged in the form
of a horseshoe with the Chairman seated at the head. The municipal
or industrial representatives are seated on the wing to the left of
the Chairman and the Federal-State-lnterstate representatives on the
wing to the right of the Chairman« The audience should be seated
in the remaining chairs facing the head table. Arrangements should
be made for a verbatim transcript of the proceedings.
4. The hearing is opened by the Chairman, who is always a
representative of EPA.
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5. The Federal presentation is given first and will include:
(a) a precise and detailed description of the standards
being violated;
(b) an explanation of hew th~ discharger is causing or
contributing TO such violation;
(c) a precise ar-scription of what the discharger was
required to co end has not done, so as to cause the
180-cay notice to be issued; and
(d) an indication of actions that the discharger can take
to bring about compliance.
6. Following the Federal statement, the city or industry
charged with the violation is called upon by the Chairman to make
a statement.
7. The Hearing Chairman will then call upon the State and
interstate agencies for statements, if any.
8. Statements of other interested parries will be called for
following the statements of the State and interstate agency partici-
pants .
9. For purposes of the record, all participants should give
their names, the names of the organizations they purport to repre-
sent, and their titles in the organizations.
10. There should not be a rigid adherence to any procedure. The
object of the hearing is to develop a dialogue between the interested
parties. Accordingly, the Chairman should encourage the partici-
pants to question each other freely, rather than to merely present
formal position papers.
11. Normally questioning should not be permitted by persons not
formal parties to the proceedings, but even this rule need not be
rigidly followed. Illumination of the issues can come from unexpected
sources.
12. The transcript of the record shall be evidence of any agree-
ment reached at the hearing, but t?iereafter the terms of the agreement
should be reduced to a more formal written statement, subscribed to
by each of the parties.
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Co Post Hearing Act:ion
1. Even though an agreement is not reached at the informal
hearing, efforts should he i^.ade 1 her..."ifter to meet with the dis-
charger, and to reach u r.jUTvally savisfactory agreement, which,
in every case, should be reduced to v-riting.
2. If an agreement has not l>;:e/ : ?ached by the end of the
180-dcy period, the Regional Office should submit to Headquarters,
Washington, D. C., a resuv.e, of the negotiations, a description of
the position or final offer of the discharger, a statement of the
options available to EPA, ai'.d a rt-coruraendation as to what action,
if any, EPA should take. .;,
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Tab E
SECTION 11 OF THE FEDERAL V//V7£?. POLLUTION CONTROL ACT.
Prepared October, 1971
The V/ater Quality Improvement Act, 1970 (P.L. 91-224) re-
pealed the Oil Pollution Act, 1.924 (43 Stat. 604) together with its
jj amendment, The Clean Waters Restoration Act, 1966 (80 Stat. 1246)
_ and created vhat is now Section 11, Federal Water Pollution Control
' Act, as emended, 33 U.S.C. 1161 (1971)--/to deal with the control
I of pollution by oil. Because Section 11 represents a major revision
of prior oil pollution control laws, and because that Section is
I relatively"new, questions concerning its interpretation and appii-
_ cation are continually arising in the course of administration. The
purpose of this paper is to identify and analyze some of those ques-
• tions and to offer some tentative answers to them wherever possible.
The paper includes discussion of policy objectives and standards for
• the discharge o'f oil and description of the operation of the new
_ law as a regulatory device. Also included are references to important
™ rules and regulations promulgated to implement Section 11. Although
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this paper will describe the interaction of various state and federal
agencies as provided in both statutes and regulations, it will not
treat the more practical, and perhaps more important problems
associated with the development of good working relationships between
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EPA and other regulatory agencies. Although international aspects
of oil pollution control should net be overlooked, international
legal questions are not herein discu'-<:ed.
There are few judicial preceder.ts interpreting or applying
Section 11. Analysis of its provisions is therefore largely based
upon a reading of the legislctiva hu.story of the Water Quality
Improvement Act, 1970, supra.
Policy £> Standards
Subsection ll(b)(l), Fvff'CA, establishes a federal policy that
"there should be no discharges of oil into or upon the navigable
waters of the United States, adjoining shorelines, or into or upon
the waters of the contiguous zone." Adoption of this policy was
largely a legislative reaction to several major oil pollution
disasters including the Santa Barbara, Torrey_Ccnyon and Ocean Eagl^e
incidents. The House Committee on Public Works in reporting on
H.R. 4148 (a predecessor of the Water Quality Improvement Act, 1970
supra. ) commented as follows-^:
Recognition that oil is a potentially serious water
pollutant is not new. The Congress recognized the
need for control in the Oil Pollution Act of 1924
reported by This committee. But by almost any relevant
yardstick, 1924 was an altogether, different life.
The breakup of the tanker Torrey__Canyon, with its in-
calculable damage to the coast of England and its
nearly $8 raillion cleanup cost, warned us that existing
Federal oil pollution control programs would be in-
adequate to handle a similar catastrophe if it occurred
here. Devastation of California's beaches 2 months ago by
oil from an offshore drilling rig made the lesson loud
and clear. It may not even be possible to assess the
vast damage to raarine life and recreation. This committee
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made an on-the-site investigation at Santa Barbara and
found the physical situation appalling.
The Oil Pollution Act of 1924 is simply not sufficient
to cope with such problems. It applies only to discharges
and spills that ere gro.:>.~ly negligent or willful; limited
to vessels, it does not apply at all to spills from
fixed installations such cs pipelines, oil deposits,
refineries, or manufacturing plants or other types of
industrial -activity using and storing large quantities
of oil. Conrined to oil, the 1924 act provides no pro-
tection against dozens cf other potentially hazardous
substances.
In addition to its contamination of water, shoreline, and
beaches, oil often has severe effects on fish and wildlife,
shellfish, and recreation. Untold ecological damage can
result not only from the oil itself but also from chemicals
used in attempting to deal with the oil. We must be able
to combat this type pollution and prevent, wherever possible,
catastrophies like these. It is in large part to that need
that H.R. 4148 is addressed.
Although the legislation was originally directed at the disaster-type
situation, Congress soon made it clear that the new law was to ex-
tend beyond spills of catastrophic proportion to include countless
other incidents of everyday proportion. The Senate Committee on
Public Works commented on its own proposed version of the Water
Quality Improvement Act as follows—^:
•3
Frequent oil "spills from vessels and from on-and off-
shore facilities have ruined beaches and lowered the
quality of our rivers and shore waters and have
jeopardized animal and vegetable life. The spills
from the Torrev Canyon and the Ocenn Eagle have been
spectacular examples of this danger, but the damage
frora repeated but unpublicized lesser incidents and
intentional dumping is steadily increasing. This can
no longer be tolerated.
Furthermore, there is some evidence that Congress intended Section 11
to have even broader application. Subsection 11(a)(2), FWPCA, provides;
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(2) "discharge" includes, but is not limited to,
any spilling, leaking, pamping, pouring, emitting,
emptying or cluapi .g.
The Senate Committee on Public Works commented upon this definition
as follows:
The definition cf "discharge" is designed to cover
by its broad teririf, all yosMble means of fouling
the .watej^s^ v'ith__p_il^ (enphasis supplied). (Senate
Report, at p. 65)
Thus, it can be argued that the no discharge policy of Subsection
• * I -.
ll(b)(l), FWPCA, applies not only to oil spills but also to con-
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tinuous or chronic discharges of oil.
Unlike the no discharge policy declared in Subsection ll(b)(l),
FWPCA, Subsection 11(b)(2),} FWPCA, provides (with certain exceptions)
i
that only discharges "in harmful quantities", as determined by the
President, will constitute a -prohibited act. The apparent incongruity
can be explained as follows. The original House version prohibited
discharges "in substantial quantities."-/ The Senate version changed
this standard by providing for an absolute prohibition against the
discharge of oil.5/ In commenting on its version, the Senate Com-
mittee on Public Works noted,
In general, the committee assumes that the dis-
charge of oil in any quantity may be hazardous
to fish and wildlife, beaches, and boats, docks,
and other facilities. (Senate Report, at p. 15)
It was not, however, the Senate version which finally passed but
rather a compromise version prepared by a Joint Conference Com-
mittee of the Senate and the House of Representatives. The final
version^/ undermined the Senate version's language by prohibiting
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only discharges of "harr-ful quantities" of oil while relegating the
strong "no discharge" language tc a nere statement of policy.^/
As a result of this final change, the regulations defining
those discharqes which ere prohibited must be supported by adequate
scientific evidence establishing that such discharges would, in
fact, "be haraful to the public health or welfare of the United
States, including, but not limited to, fish, shellfish, wildlife,
and public and private property, shorelines, and beaches..."5/
Authority for promulgating these regulations has been delegated to
EPA (in consultation with the Secretary of Transportation) by the
President.2/ They can be found at 18 C.F.R. §610.3 (1971) and pro-
For purposes of Section 11(b) of the Federal Act,
discharges of such quantities of oil into or
upon the navigable waters or adjoining shorelines
determined to be harniful to the public health or
— welfare of The United States, at all times and ,
conditions, except as provided in Section 610,6—<
of this part, include discharges which:
(a) Violate applicable water quality
standards, or
(b) Cause a film or sheen^A/ upon or dis-
coloration of the surface of the water
or adjoining shorelines or cause a
sludge or emulsion to be deposited
beneath the surface of the water or
upon adjoining shorelines.
*
It would seera, at least with respect to the "sheen test", that these
regulations are patently arbitrai-y and that, depending upon the
particular circumstances, may or may not be justifiable under the
"harmful quantity" standard of Subsection ll(b)(2), FWPCA. For
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example, a discharge of severu'l hundred gallons on the high seas
may have little or no measurable impact upon ocean ecology; however,
a discharge of no more than a few gallons of oil to a stream, pond
I
or small lake may have devastating effects on the ecosystems of those
smaller bodies. Whether, in fact, the discharge produced a "sheen"
is unimportant in determining' 'whether there is harm. The charge
that the sheen test is arbitrary and capricious has not as yet been
made in a court case.' ,\
P.eculatory Mechanism '
The provisions of Section 11 ate directed at both spill response
h(
activities (after the occurerce of an oil pollution incident) and
,'
spill preventive activities (before the occurence of an oil pollution
incident). According to the Senate Coramittee on Public Works,
(The purpose of Section 11) is to insure swift re-
...... moval of discharged oil in order to prevent, mini-
mize, or mitigate damage to property and our
natural resources. (Senate Report, at p. 65)
It appears that Congress was persuaded that early, effective spill
detection and response are essential in order to minimize both cost
*i
of cleanup and damage to the ecology. The same Senate Committee
f n
> 5
comments, , »
• 3
Too often the Government has been unable to respond
quickly enough to control the situation, or has not
been informed of the incident. Frequently, the
offenders have made no attempt to clean up the spill
and have gone unpunished. This bill attempts to
correct these deficiencies. (Senate Report, at p. 3)
Subsection ll(c)(2) creates a program designed to overcome
the problem cited by the Senate Committee on Public Works. That
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Subsection provides for the developr.ent of a National Contingency
Plani^/ "for efficient, coordinated, and effective action to minimize
damages from oil discharges, including containment, disposal, and
removal of oil."i£/ The FC? operates as follows:
In the event an oil pollution incident occurs, the "person in
charge" of the vessel cr facility involved is required to give "immediate"
notification "as soon as he has knowledge" of the incident to the
appropriate representative of the federal government. A listing of
the appropriate representatives is provided at 18 C.F.R. S153.105
(1971).—' According to the House Committee on Public Works:
The requirement that notice of discharge of oil...
be given to appropriate authority,... is essential
to expeditious and efficient cleanup action. It
is a requirement placed upon the individual who
is operationally responsibly for the vessel or
facility involved. • It is not intended to include
seamen, in the case of a vessel, for example, or
to a night watchman or janitor in the case of a
facility. By this clarification, however, we do"
not mean that the requirement is limited to the
president of a large corporation of the owner of a
vessel. The emphasis is on operationally respon-
sible at the time of discharge.±2J (House Report, at p. 2)
After an oil pollution incident has been reported, spill response
activities are carried out by an on-scene coordinator in accordance
with the KCP. Section 301.1, NCP, provides,
• •
... for spill response activities, Federal on-scene
coordination is accomplished through a single, pre-
designated agent, the on-scene coordinator (OSC).
He reports to and receives advice from the Regional
Response Team (RRT) composed of appropriate re-
presentatives from the Regional and District offices
of the Primary and Advisory Agencies.
^
According to Section 105.15, NCP, the "primary agencies" are the
Department of Defense, Department of Interior, Department of Trans-
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portation and the Er.viror.T~.er.tcl Protection Agency. According to
Section 105.16, IiCP, "advisory agencies" are the Department of
Commerce, Department of Health Education and Welfare, Department of
Justice, the Office of Erufrgency Preparedness, and the Department of
State. r
Section 3C6.2-1, KG?, provides that,
EPA shall furnish or provide for OSC's on inland
navigable waters, and their tributaries.
Section 306.2-2, NCP, provides that,
The USCG shall furnish or provide for OSC's for
the'high seas, coastal, and contiguous zone waters,
and for Great Lakes coastal waters, ports and harbors.
Section 105.4, NCP, defines "inland waters" as "those navigable fresh
waters upstream from the coastal waters."• Section 105.5, NCP, defines
"coastal waters" as "those U.S. Marine waters navigable by deep draft
vessels."
Section 306.2-3 further provides,
The major consideration in selection of the OSC for
a particular area of facility shall be based upon
the Agency's capability and resources to provide on-
scene coordination of pollution control response,
activities. If the responsible Agency does not act
promptly or take appropriate action, the EPA or
USCG shall, depending on the area in which the. spill
occurs, assume the OSC functions.
•
Where an oil pollution incident occurs, the discharger is first
given an adequate opportunity to remove the discharged oil himself.
If he fails or refuses to do so, the federal government may under-
take response operations-*^/ by way of "containment and countermeasures"-lZ/
"cleanup and disposal"-!^/ "restoration".!?./ and "recovery of damages
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and enforcement".2£K According to the Senate Committee on Public
Works-:
S.7 provides on opportunity for the owner or oper-
ator cf a vessel o»: onshore or offshore facility
to immediately remove any oil discharged. It is
the intent 01 the conm.it Lea to encourage removal of
oil by the owner or operator of the discharging
source. |,,
In many instances, tho owner or operator of a
vessel or onshore 'br offshore facility will know of
a discharge prior to any agency of the U.S. Govern-
ment and be in the best position to take early action
to prevent or minimize damage. As testified to by
the oil and shipping industry it will be in the best
interests of the ci.c/ner or operator to take immediate
measures to reduce damage from an oil spill.
At the same tin's, the committee does not intend
to restrict the authority of the President to act to
remove oil that he's been spilled. In those cases
when the owner or ,bperator is not capable of clean-
ing up the discharge, 01 the owner or operator re-
fuses to clean up Hrhe discharge, or, does not adequately
clean up the discharge, the committee expects the
President to act t'd remove the oil to prevent damage
and decrease cost.1 (Senate J^ftjjojrt, at p. 17)
If the federal government does assume the responsibility for
removing the discharged oil, the discharger may be held absolutely
liable for the actual costs incurred. The extent of liability for
costs of removal is subject to certain monetary limitations based
•71 /
upon the type of facility and the degree of fault. ^— ' There are,
however, two shortcomings with respect to the provisions for recovery
%
of costs. First, costs recoverable include only the "actual costs"
incurred by the U.S. Government in the removal of discharged oil. The
law does not give the U.S. Government a right of action to recover
daiaagen for incidental and consequential injury such as damages to the
environment (or costs of restoration). Second, the law does not give
innocent third parties, such or, adjoining property owners, a private
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right of action for injury to their property. Such persons must
rely upon applicable state low which nay or may not provide for
• strict liability in tort in the handling of oil.
There are, in addit.'c:;, certain affirmative defenses which the
I discharger may plead ana prove in order to avoid liability. They
• . are:
1) act of war-22/
I 2) act of GocL-23/
3) negligence on the part of the United States Government-*^/
H 4) supervening act or omission of a third party whether negligent
• or not-25/
A problem in applying this last affirmative defense arises where
I the discharge occurs as a result of the act or omission of a party
_ doing work under a contract with the discharger. Although the acts
™ - - - or omissions of an agent or employee are attributable to his employer/
I the same is not true of the acts or omissions of independent contractors.
Thus, where the owner or operator of a tank barge/ in tow, can prove
I that the discharge of oil from his vessel was caused by the act or
. omission cf the tug boat operator (usually an independent contractor),
he may avoid liability. Although the present law would then place
•
I the financial burden for removal costs upon the tugboat owner or oper-
ator, his financial responsibility is limited to $100/gross ton or
| $14,000,000, whichever is lesser. Thus, in cases involving substantial
tm costs of removal, the actual costs incurred nay far exceed the amount
for which the owner or operator of the tugboat could be held account-
• qjhle, Thf Socr^tory of TransportationJLS/ made the following comments
I
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on this problem and others created by the third party defense:
Section 11(f) of the Act permits an owner or oper-
ator of a vessel, onshore facility, or offshore
facility fro:n which oil is discharged to interpose
"as a defense to 1: ability the act or omission'of a
third party, whenever .the discharge was caused
solely by the act or omission of the third party.
Where the relation, between tug and tow is that of
independent contractors, 05 is generally the case,
there is no liability of the owner of the tow for
the negligence or fault of the owner or operator of
the tug. Consequently, if the discharge of oil from
the tow causes in'iury to the property of a third
person, the owner or operator of the tow is not liable
for any resultant! damages in the absence of contributory
negligence on the part of the tow. In such case, the
owner or operator1 of a tank barge under tow v/ould in-
terpose as a defense the acts or onunissions of a third
party, and an action for recovery of costs of removing
* discharged oil ani other damages would be against the
tug owner who might not have sufficient financial
responsibility tc' cover the resulting liability.
There are any nuiiiber of situations that may serve to
insulate owners or operators of vessels or facilities
from liability through contractual arrangements with
a third party to accomplish the specific tasks that
may be the cause of an oil spill. The operation of
offshore facilities is usually conducted in this man-
ner with the drilling operation being carried out by
a contractor who is usually not the lease holder.
Further Economic Deterents^
The new law also includes provisions designed to have a deter-
ent effect upon oil polluters. •
Subsection 11(b)(4), FWPCA, requires anyone in charge of a
vessel or facility, as soon as he has knowledge of any discharge of
oil from that facility, to immediately notify the appropriate United
States agency. Failure to do so subjects such person to a fine of
not more than $10,000 or imprisonment for not more than one year, or
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both. According to the Senate Committee on Public Works,
The Committee .intends thcit this (notice re-
quirer.sent) provision be --UT ictiy enforced...
The Committee intends th'it enforcing agencies •
assume that perr.ons in charge of vessels and
on-shore end off-shore .t^cilities will have
knowledge or a .-jpill and therefore cases
where ^uch prr,'.:oni: fail to notify due to lack
of knowledge r-aould be rate, (Senate Report, at p. 16)
This notice requirement is placed upon the individual "who is
• operationally responsible for the vessel or facility involved."227
Whether the Congressional directive to apply Subsection ll(b)(4),
• FWPCA, to "operationally responsible employees"2-§/ precludes pro-
secution of the employer-corporation, (its officers and directors),
• is a question which has not been resolved. Arguably, Subsection
• 11(b)(4), FWPCA, can be used to prosecute the corporation (its
officers and directors), at least in coses where the corporation has
• failed or refused to expressly authorize and direct its employees to
• O Q /
report oil pollution incidents.^-i/ Placing the burden to report
• incidents upon the corporation rather than solely upon operational
• personnel is in keeping with the general remedial purposes of the
statute since the corporation is in the best position to exercise con-
trol over the practices of its personnel.
Although the term "immediately", as used in Subsection 11(b)(4),
FWPCA, is nowhere defined in the statute, it appears that the re-
quirement of "immediate notification" was inserted to insure timely
response activity so as to "prevent damage and decrease cost. "-SO/
Since spilled oil may become impossible of effective containment and
removal within hours or even minutes after the discharge has occurred,
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no more than a few hours or minutes delay in notification can be
tolerated. Delay beyond that period of time should, in appropriate
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Quite clearly, section ll(b)(4) would preclude
•the government from offering this evidence in
a criminal prosecution of Mr. Armstrong ( de-
fendent's employee). But equally clearly the
•statute does not preclude the use of this evi-
dence in this criminal prosecution of the de-
fendant Humble Oil Co. who happened to be Mr.
Armstrong's employer. «,
James Tripp and Richard Hall-2!/ comment on this decision as follows:
... This holding quite properly limits the
new Act in protecting individual responsible
employees who face possible jail sentences,
but not corporations, which have no fifth
amendment privilege against incrimination,
from expeditiously reporting possibly incrim-
inating omissions or coir.missions«
cases, give rise to an action under Subsection ll(b)(4), FWPCA. The
length of the delay generally should be considered only for the pur-
poses of mitigating the criminal penalty, and not as an excuse for
i
ignoring statutory violations.
Subsection ll(b)(4), FVpCA, also provides that,
j',
... Notification z ^ceived pursuant to this para-
graph or information obtained by the exploitation
of such notification shall not be used against any
such person in any criminal case, except a prosecu-
tion for perjury c'r for giving a false statement.
It was held in United States V. Humble Oil £> Refining Co. , 70 Cr. 61
(S.D. Maine September 28, 19^0) (Gignoiix J.) that Subsection ll(b)(4),
FVPCA, would preclude the government from offering the evidence ob-
tained from the employee in a criminal prosecution of the employee
himself, but not from using such evidence in a criminal prosecution
of the employer-corporation. According to Judge Gignoux,
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There is dictum in United* S_tates v. Humble Oil £» Refining Co., supra. ,
to the effect that notification by non~.supervisory personnel is not
notification by the corporation for the purposes of Subsection 11(b)(4),
FWFCA. A portion of the official transcript reads as follows:
_****•****•****
THE COURT: ... it seems quire evident to the Court
that the person who notified the Coast Guard in
this case was Mr. Alan Armstrong and not the Humble
Oil Company. Even though Mr. Armstrong was an
employee of Humble Oil Company. The Court cannot
construe this section as applicable in this pro-
secution which is a prosecution of Humble Oil Com-
pany (under the Refuse Act). If the Board of Dir-
ectors of Hun/Lie Oil Company had met at the time
and passed a formal resolution authorizing the sec-
retary or sorre appropriate officer on behalf of
Humble to notify the Coast Guard—under such circum-
stances, arguably at least, it. would be a notifica-
tion by the corporation, by Humble Oil Company. But
quite plainly, Mr. Armstrong, who is a plant clerk
employed by Habibie, "was not authorised to act on be-
half of Humble for purposes of notification.
HR. COGGESHALL (Counsel for Defendant):
If I may, your Honor, I would take issue with you on
that. His superior is certainly authorized to act on
behalf of Humble and it was by his superior's in-
structions that he made this phone call.
THE COURT: The Court can only say that such an
application of this statute would completely
nullify its effective operation in probably 90% of
the spill situations which arise. This Court is
not prepared to give the statute any such application.
•
Subsection 11(b)(5), FWPCA, creates another economic deterent.
That section imposes a $10,000 civil penalty upon the owner or oper-
ator of a vessel, onshore or offshore facility from whose vessel or
facility oil is "knowingly discharged" in violation of Section ll(b)(2),
FWPCA. Such penalty is to be assessed by the United States Coast Guard
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upon notice and opportunity for a hearing. It is arguable that
"knowingly discharged", as used in Subsection 11(b)(5), FWPCA, in-
cludes "reason to know" as well as "actual knowledge." Although
there are no court decisions interpreting that Subsection, the Senate
Committee on Public Works commented on it as follows-t - .
The discharge penalty is provided primarily for
two reasons. First, there are those discharges
which do not lend themselves to effective clean-
up and yet present a hazard to water environment.
Often these discharges come in the form of
indiscriminate dumping along the coast during
the night or accidents along the navigable water-
ways. This penalty, while it should be imple-
mented with discretion, should be useful in
discouraging oil spills. (Senate Report, at p. 16)
Thus, where a violator was not actually aware but was negligent in
not knowing of a discharge, civil liability should be imposed for
the "indiscriminate dumping."
Emergency Provisions
In addition to the regulatory devices discussed above, there
are certain provisions in the new law giving the federal Government
additional authority in cases of emergency. Subsection 11(d), FWPCA,
provides that,
Whenever a marine disaster in or upon the navigable
waters of the United States has Created a substan-
tial threat of a pollution hazard to the public
healtn or welfare of the United States, including,
but not limited to, fish, shellfish, and wildlife
and the public and private shorelines and beaches
of the United States, because of a discharge, or an
imminent discharge, of large quantities of oil from
a vessel the United States may (A) coordinate and
direct all public and private efforts directed at
the removal or elimination of such threat: and (B)
summarily remove, and, if necessary, destroy such
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vessel by whatever rr.ec.ris are available without re-
gard to any provision of law governing the employ-
ment of personnel or the expenditure of appropriated
funds. Any expense incurred under this subsection
shall be a cost incurred by the United States Gov-
-ernraent for the purposes of subsection (f) in the
removal of oil.
Authority to carry out the provisions of this subsection relating to
the coordination and direction of reir.oval or elimination of the
threat of oil discharges and the removal and destruction of vessels
has been delegated to the Environmental Protection Administrator and
the Secretary of Transportation respectively, in and for the waters
and areas assigned to each in Section 306.2, NCP^=/. Subsection 11(e),
FWPCA, provides that,
In addition to any other action taken by a State
or local government, when the President deter-
mines there as an imminent and substantial threat
to the public health or welfare of the United
States, including, but not limited to, fish, shell-
fish, and wildlife and public and private property,
shorelines, and beaches within the United States,
because of an actual or threatened discharge of oil
into or upon the navigable waters of the United
States from an onshore or offshore facility, the
President may require the United States attorney
of the district in which the threat occurs to
secure such relief as may be necessary to abate
such threat, and the district courts of the United
States shall have jurisdiction to grant such relief
as the public interest and the equities of the case
may require.
•
Authority to carry out the provisions of this subsection relating to
determinations of imminent and substantial threat because of actual
or threatened discharge of oil, and relating to securing relief
necessary to abate such actual or threatened discharge through court
action has been delegated to the Environmental Protection Administrator.^^
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R_egu 1 at i_cn s
Under the new law, the federal government also has authority to
control oil discharges by regulation. Subsection ll(j)(l), FWPCA,
provides as follows:
Consistent with the National Contingency Plan re-
quired by subsection (c)(2) of this section, as
soon as practicable after the effective date of
this section, and from time to time thereafter, the
President shall issue regulations consistent with
maritime safety and with marine and navigation laws
(A) establishing methods and procedures for removal
of discharged oil, (B) establishing criteria for the
development and implementation of local and regional
oil removal contingency plans, (C) establishing pro-
cedures, methods, and requirements for equipment to
prevent discharges of oil from vessels and from on-
shore facilities and offshore facilities, and (D)
governing the inspection of vessels carrying cargoes
of oil and the inspection of such cargoes in order
to reduce the likelihood of discharges of oil from
such vessels in violation of this section.
The President has delegated to the Environmental Protection Administrator
and the Secretary of Transportation responsibility for developing and
enforcing these regulations.-24/ Subsection ll(j)(2) established the
method for enforcement of the Subsection ll(j)(l) regulations. Both
EPA and the Department of Transportation have authority to ''assess
*
and compromise" a civil penalty for violation of the regulations within
their respective jurisdictions. The penalty may not exceed $5,000
•
per violation. No penalty may be assessed or compromised except upon
notice and opportunity for a hearing. Such hearing should accord at
least the minimum due process requirements as provided in the Adminis-
trative Procedures Act, 5 U.S.C. 554 (1971). If the defendant, after
being assessed a penalty by the appropriate agency, fails or refuses
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l
\
to pay, the agency may seek the assistance of the Department of
Justice to collect the amount assessed by court action.
i
According to the House 'Committee on Public Works,
Section (ll(j}(2)} would establish civil penalties
for the violation of any regulations issued under
subjection (ll(j)(l)) ... The penalty shall not
be assessed until^notice and an opportunity for a
hearing have been aiven. In order to collect the
penalty finally, the United States would have to
file c civil action in the U.S. district courts
which will provide;, a de novo proceeding. (House
Reporj:, at p. 13)
Similarly, the Senate Committee on Public Works commented,
Section (ll(j)(2), would authorize a civil penalty
for violating the .above regulations. If payment
is not forthcoming administratively, such penalty
may be collected i'.n the Federal district court in
a de novo proceeding. (Senare Report, at p. 35)
Federal- State Interaction ' '
The final question to be discussed is, to what extent does
Section 11, FWPCA, affect the administration of other federal, state
and local laws? Subsections ll(a)(2) S (3), FWPCA, provide,
... (2) Nothing in this section shall be construed
as preempting any State or political subdivision
thereof from imposing any requirement or liability
with respect to the discharge of oil into any waters
within such state.
... (3) Nothing in this section shall be construed
as affecting or modifying any other existing auth-
ority of any Federal department, agency, or instru-
mentality, relative to onshore or offshore facilities
under this Act or any other provision of law, or to
affect any State or local law not in conflict with
this section.
According to the Senate Committee on Public Works, '
The bill gives general recognition that its pro-
visions do not affect the existing authority of
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19
other Federal agencies relative to on- or off-
shore facilities under the provisions of this or
any other act or affect or .modify and State or
local law net in conflict with the provisions of
this section.
- - The corur.it 102 expects that Federal agencies
with authority over on- end offshore facilities
will continue to exercise that authority under
the provision-, of other low- Also the committee
does not intend to preer.pt those provisions of
State law which are not in conflict with the bill.
For exanple, the committee understands that sone
States have established absolute liability without
limits on oil discharged from State-leased offshore
oil facilities in the tidelands. The committee
does not intend that any provision of this law
should effect the right of the State to include
such provision in its lease or otherwise provide
such liability. At the same time the committee
intends that the provision of the section shall
preempt any State or local law which provides for -
. less stringent liability. Finally, the committee
does not intend that an owner or operator should
be obligated to both the U.S. Government, and the
State government except to the extent that costs
ere incurred by both. (emphasis supplied) (Seriate
Report, at p. 20)
This statement does not resolve certain important legal questions
raised by the enactment of Section 11, FWPCA.
First, is the Army Corps of Engineers justified in issuing a
Section 13 Refuse Act Permit to an established facility the terms
*
of which pemit the discharge of seme oil? (What about issuance to
a new facility?) There is no easy answer to these questions. The
»
answers depend upon to what extent the "no oil" policy of Subsection
f
ll(b)(l), FWPCA, affects the Permit Program in light of the provisions
of the National Environmental Policy Act, 1969 (P.L. 91-190) 83 Stat.
B52 et seq. That Act requires that "the policies... of the United
States shall be interpreted and administered in accordance with the
policies set forth in this Act..." and further that "all agencies of
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the Federal Government shall..." follow certain rigorous procedures
in considering environmental values.—' The United States Court
of Appeals for the Districr of Columbia commented on these require-
ments as follows:
A purely mechanical compliance with the particular
measures required...will not satisfy the Act if
they do not criou.it to fall Gooa_ faith consideration
(emphasis supplied) of the environment. Caivert
Cliffs' Coord initfng CgmmitTee, Inc. v. Atomic
Energy CcrrJ.s; sj.gn, Nos. 24,839 £, 24,871 (D.C. Cir.
July 23, 1971), at p. 6, n. 5.
Second, does the Refuse Act apply to oil pollution cases not-
withstanding the fact that Congress enacted Section 11, FWPCA, to
deal specifically with the control of pollution by oil? The answer
is yes. The Refuse Act may be applied independently of or in con-
junction with Section 11, FWPCA, in light of Section 24 of that Act
which provides that,
This Act shall not be construed as in (2) affecting
or impairing the provisions of section 13 through
17 of the (Refuse Act of 1899).
See also the opinion in United States v. Humble Oil £. Refining_Co. ,
supra. Wherein Judge Gignoux found the argument "persuasive" that
Section 24, FWPCA, precludes the application of Section 11(b)(4),
FWPCA, where such application would "impair" a prosecution under
«
the Refuse Act.
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1. (hereinafter cited as "FWPCA")
2. H.K. Rep. No. 127, 91st ,Cong. , 1st Sess. 2 (1969);
(hereinafter cited as MFrouse R_eoo£_l'')
3. S. Rep. No. 351, 91st CcKg., lr,t Sess. 3 (1961);
(hereinafter cited as "Senate j^fc£2£j£.")
4. H.R. 4148, as reported hy the Committee on Public Works,
House of Representatives, 91st Congress, 1st Session,
§ §17(b), 17(c)(2).
5. S. 7, as reported by the Committee on Public Works, Senate,
91st Congress, 1st Sessi'bn, §12(b)(l), reads as follows:
The discharge of oil into or upon the navigable waters
of the United States, adjoining shorelines, or into
or upon the waters of the contiguous zone is prohibited,
except... (B) when' permitted in quantities and at
times and at times (and locations or under such circum-
stances or conditions as the President may, by
regulation, deem appropriate...
6. Subsection 11(b)(2), Federal Water Pollution Control Act,
as amended, 33 U.S.C. l.',61 (1971) reads as follows:
The discharge of oil into or upon the navigable waters
of the United States, adjoining shorelines, or into or
upon the waters of the contiguous zone in harmful
quantities (emphasis supplied), is prohibited, except...
(B) where permitted in quantities and at times and
locations or under such circumstances or conditions as
the President may, by regulation, determine not to be
harmful.
7. Id., Subsection ll(b)(l).
8. Id., Subsection 11(b)(3).
9. Section l(b), Exec. Order No. 11548, 3 C.F.R. 545 (1971)
*
10. 18 C.F.R. 610.6 (1971) provides:
For purposes of section 11(b) of the Federal Act,
discharges of oil from a properly functioning
vessel engine are not deemed to be harmful; but
such oil accumulated in a vessel's bilges shall
not be so exempt.
11." 18 C.F.R. 610.6(b), (1971) is commonly known as the "sheen test".
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12. Annex A, (hereinafter cited as "NCP")
13. Subsection ll(c)(2), Federal Water Pollution Control Act, as
amended, supra.
14. Annex B.
15. See also Senate Report, at p. 67. "The term 'person in charge1
is deliberately designed to cover only supervisory personnel
who have the responsibility for the particular vessel or
facility and not to include other employees."
16. Section ll(c)(l), Federal Water Pollution Control Act, as
amended, supra.
17. Section 402, NCP, Phase II, "Containment and Counterroeasures"
18. Section 403, NCP, Phase III, "Cleanup and Disposal"
V19. Section 404, NCP, Phase IV, "Restoration"
20. Section 405, NCP, Phase V, "Recovery of Damages and Enforcement"
n.l The NCP provides that "the OSC shall initiate and direct
as required Phase II, Phar,e III and Phase IV operations..."
(306.1-3), but shall only "provide necessary support activities
and documentation for Phase V activities..." (306.1-5). It
would therefore appear_that no final enforcement decisions
niay be made without EPA approval, especially in light of
Section 3C6.2-3, NCP, which provides that "Pollution control
- - -— actions taken must be in accordance with Federal regulations
and guidelines, EPA policies (emphasis supplied) and this
plan."; see also Section 406.5, NCP, which provides "Phase V
activities shall be carried out by individual agencies in
accordance with existing statutes, with such assistance as
is needed from other agencies and from the OSC."
21. Sections ll(f)(l), (2) and (3), Federal Water Pollution Control
Act, as amended, supra., limit discharger's liability as
follows:
a.) vessels - lesser of $100/gross ton or $4,000,000.
b.) onshore and offshore facilities - $8,000,000 (with
certain exceptions as to onshore facilities with total
fixed storage capacities of less than 1,000 barrels, see
Section ll(f)(2)).
c.) unlimited where discharge is due to willful negligence
or willful misconduct.
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22. The Senate Committee or. Public Works commented as follows:
After deciding on the nature of liability, the com-
mittee then considered the circumstances under which
a vessel owner or on- or off-shore facility owner
should be exer.pt from the imposition of such liability.
The committee determined that one obvious area over
which an owner or operator would have no control would
be a discharge caused solely by an act of war. Senate
Report, p. 5-6.
23. The Senate Committee on Public Works commented as follows:
Another area which the committee believed to be beyond
the control of an owner or operator would be any dis-
charge caused solely by an act of God about which the
owner could have no foreknowledge could make no plans
to avoid, or could not predict. Under this exception,
only discharges resulting from grave natural disasters,
which could not be anticipated in the design, location
or operation of the facility or vessel by reason of
historic, geologic, or climatic circumstances or
phenomena, would be outside the scope of the owner's
or operator's responsibility. Senate Report, p. 6.
24. The Senate Committee on Public Works commented as follows:
It was brought to the attention of the committee that
there have been circumstances in which a negligent
act of Government caused or contributed to the dis-
"~charge of oil. The committee determined that an owner
or operator should not be held liable if he could prove
that such act of U.S. Government negligence was the
__ Sole cause of a discharge. Examples of this type of
situation would include a negligently placed marker
buoy in a channel, a well lighted and marked offshore
oil facility in the navigable waters rammed by a U.S.
vessel or a tank farm into which a military aircraft
crashed. Senate Report, p. 6.
25. The Senate Committee on Public Works commented as follows:
Finally, the committee considered -the question of a
discharge which occurred solely due to an act of a
third" party. Among such acts would be a discharge
caused when a vessel collided with another vessel-
which was secured to a dock.
The committee determined that while the owner or
operator should not be liable if he could prove that
a discharge was caused by one of these acts, it was
also necessary that such exceptions be allowed only
when the owner or operator proved the discharge to be
solely the result of one of the exceptions. Any
cu i'onbii itv on th^ nnrt" of t-hp ov-Tipr r>r- nnp-rntov would
- •> * A •
vitiate the exception. Senate Heport. p. 6«
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26. Secretary of Transportation, 92d Cong., 1st Sess., Oil Pol-
lution Liability end Financial Responsibility: A Report to
the President and the Congress 19, 20 (Cairua. Print 1971).
27. Discussed, supra, at p. 7. ~" "
28. Id.
29. See United States v_.__Hi^Me Oil S Refining Co., infra.
Notification by an employee is not notification by the
corporation for the purposes of section ll(b)(4), FWPCA.
30. Senate Report, p. 17, discussed, supra,, at p. 4.
31. Tripp and Hall, Federal Enforcement Under the Refuse Act of 1899,
35 Albany L. Rev. 60 (1970), at p. 61. n. 5.
32. Section 5(a)(2), Exec Order No. 11548, 3 C.F.R. 545 (1971).
33. Section l(d), Exec Order No. 11548, id.
34. Exec. Order No. 11548, id., assigns responsibility for developing
regulations as follows:
Subsection ll(j)(l)(A) Regulations - to the Environmental
Protection Administrator and the Secretary of Transportation
in and for the waters assigned to each in Section 306.2, NCP.
-Subsection ll(j)(l)(B) Regulations - to the Environmental
Protection Administrator and the Secretary of Transportation
in and for the waters assigned to each in Section 306.2, NCP.
Subsection ll(j)(l)(C) Regulations - to the Secretary of
Transportation in consultation with the Environmental
Protection Administrator as to discharges from vessels and
transportation - related facilities; to the Environmental
Protection Administrator in consultation with the Secretary
of Transportation as to discharges from non-transportation-
related facilities.
Subsection il(j)(l)(D) - to the Secretary of Transportation.
-------
Tab F
SUMMARY OF SECTION II, F'/PCA DELEGATIONS MADE BY EXECUTIVE
ORDER 11548 TO THE ErWIR.JNMENTAL, PROTECTION AGENCY AND/OR
THE DEPARTMENT OF TRANSPORTATION
I. Responsibilities delegated exclusively to EPA.
i,.
A. Sec. ll(c)(2)(G) ~ identification of dispcrsants and other
chemicals for oil spill cleanup. (Sl(c))
B. Sec. 11 (e) - determine and seek abatement of imminent and
sxibstantial threats of 'bil discharges from onshore or off-
shore facilities. (§l(d))
i
II. Responsibilities delegated jointly to EPA and DOT.
A. Sec. 11(b)(2) and (b)(3) - determination of harmful
quantities of oil (3r'(b)) See Addendum.
B. Sec. ll(j)(l)(C) •>'• procedures, methods, and requirements
for equipment to prevent discharges of oil from non-trans-
portation-related onshore and offshore facilities. (Sl(e))
C. Sec. ll(j)(l)(C) - procedures, methods and requirements
for equipment to prevent discharges of oil from vessels and
transportation-related onshore and offshore facilities.
(§2(a))
D. Sec. ll(c)(l) - removal of oil discharged into or upon
navigable waters. (§5(a)(l))
E. Sec. 11(d) - removal of threat of marine disaster from oil
discharged from vessels. (§5(a)(2))
F. Sec. ll(j)(l)(A) - methods and procedures for the removal
of discharged oil. (S5(a)(3))
G. Sec. ll(j)(l)(B) - criteria for the development and
implementation of local and regional oil removal contingency
plans. (§5(a)(4))
H. Sec. ll(j)(2) - civil penalty for the enforcement of the
respective regulations issued by EPA and DOT. (»5(b))
III. Responsibilities delegated exclusively to DOT.
A. Sec. ll(j)(l)(d) - inspection of vessels carrying cargoes
of oil and the inspection of such cargoes. (§2(b))
-------
B. Sec. ll(k) - odriinister the revolving fund. (§2(c))
C. Sec. ll(m.) - boarding end inspection of vessels, arrests,
and execution of warrants or other process.
j
D. Sec. ll(b)(4) •• appropriate recipient of notices of
oil discharges.
-------
Tab G
EPA ENFORCEMENT OPTIONS UNDER SECTION 11 OF THE FEDERAL
WATER POLLUTION CONTROL ACT.
Prepared November 29, 1971
The purpose of this memorandum is to explore the potential enforce-
.merit activities the Environmental Protection Agency could initiate
under Section 11 of the Federal Water Pollution Control Act.
Section 11 proscribes discharges of oil in harmful quantities, re- •
quires notification when such discharges occur, and imposes liability
for the cleanup or the cost of Federal cleanup on the discharger of
oil. Enforcement under the Rivers and Harbors Act of 1899 is also
considered because petroleum products, whether commercially valuable
or wastes, are refuse matter which cannot be discharged into navigable
waters without a permit ft'am the Army Corps of Engineers. (United
States v. Standard,Oil Co., 384 U.S. 244 (1966))
To achieve maximum oil pollution abatement, EPA1s enforcement effort
should focus on (1) offenders who routinely discharge oily wastes and
(2) oil spills of major proportions caused by negligence. This
memorandum will describe fhe enforcement options available to EPA, in
these two categories of oil pollution cases, under the Refuse Act
and under Section 11 of the FWPCA.
Discussion
Absent substantial participation and cooperation on the part of the
Coast Guard, Section 11 of the FWPCA cannot be effectively utilized
by the Environmental Protection Agency for routine oil pollution
enforcement.
Violations of §11(b)(4), failure to notify the Coast Guard of prohibited
oil discharges, could be referred by EPA to the U.S. Attorney or the
Department of Justice for criminal prosecution. Too many independent
§11(b)(4) referrals by EPA would probably offend the Coast Guard, the
designated notice recipient. More importantly, notification
prosecustions would be an unreliable enforcement mechanism for abating
the oil pollurion underlying the §11(b)(4) violation. A person con-
victed under Sll(b)(4) could be expected to report prohibited oil
discharges thereafter; it would not necessarily follow that he would
abate or eliminate the offending oil discharge.
One who discharges harmful quantities of oil in violation of the
regulations promulgated pursuant to 311(b)(2) and (3) is subject,
under §ll(b)(5), to a maximum civil penalty of $10,000 for each
offense. The statute provides that the penalty is to be assessed
"by the Secretary of the department in which the Coast Guard is
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operating," i.e., the Secretary of the Department of Transportation.
Imposition of a §ll(b)(5) penalty must be preceded by notice and
Ian opportunity for a hearing. The factors to be considered by the
Secretary in determining the amount of trie penalty are "the size of
the business of the owner or operator charged, the effect on the
owner or operator's ability to continue in business, and the gravity
of the violation...."
The Secretary's decision in a civil penalty case could be appealed
under the Administrative Procedure Act, 5 U.S.C. §1001 et seq.
Section 11 nowhere authorizes the U.S. Attorney to bring an inde-
pendent civil action to recover a §11(b)(5) penalty for the dis-
charge of harmful quantities of oil. At present, the Coast Guard's
enforcement hearing regulations, 46 C.F.R. §2.50-20, are exceptionally
inadequate. One of their most significant deficiencies is that there
is no provision for initiating an enforcement hearing upon the filing
of a notice and complaint by a citizen or by an agency other than the
Coast Guard.
Subsection (e) offers the only possibility of independent EPA enforce-
ment under Section 11 of the Fv/PCA. Executive Order 11548 delegated
to EPA the President's authority to refer to the U.S. Attorney cases
of "actual or threatened" oil discharges from onshore or offshore
facilities which pose "an imminent, and substantial threat to the
public health or welfare of the United States...." Such discharges
may be enjoined.
It should be noted that an oil discharge which is neither imminent
nor substantial can be enjoined if it iirjninently and substantially
threatens the public health or welfare. Thus, a §11(b)(2) harmful
quantity discharge could be abated under subsection (e) if EPA first
made a determination that the discharge substantially and imminently
threatened, inter alia, "fish, shellfish, and wildlife and public and
private property, shorelines, and beaches."
The injunctive relief available under §11(e) of the FWPCA is no greater
and may be less than that which is available under the Rivers and
Harbors Act of 1899. The latter does not require a preliminary deter-
mination of substantial and imminent threat and, for that reason
alone, provides a more streamlined enforcement procedure than its
twentieth century counterpart. Proceeding exclusively under the
1899 statute makes sense in view of the extensive Refuse Act permit
program now being implemented and the availability, thereunder, of
criminal sanctions which can be obtained by the U.S. Attorney upon
EPA's request.
-------
With one notable exception (discussed in the Kosloff memorandum at
pp. 10-11), the oil spill costs recovery provisions in Section 11(f)
of the FWPCA adequately serve the enforcement objectives in cases
of large, accidental oil spills. When criminal or gross negligence
occurs or when the discharge continues for many days, criminal
sanctions under the Refuse Act should be sought.
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• ' . ENVIRONMENTAL PROTLCliON AGENCY
SAMPLE TRANSMITTAL SHEET
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• TO: (Laboratory Name & Address)'.
I FROM: (Field custodian- or Field Sampler) . • "" "••
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I Sample Ho. Lab Number Preservat I ve Analysis Required
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To be completed in field: "'" ------ ? ...... -
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Prepared by: _ _ Date
Signature
• Field Notebook No. •• Time
To be completed by Laboratory:
Received by: _ ' Date
Tl.me
Distribution: Orig. & 1 copy - Accompany shipment
I copy - moil directly. to Laboratory
1 copy - mail to Data Management
. 1 copy - Survey Coordinator Field Files
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