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,

      i

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.








i

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-

                                                          2/
fuse Act Permit Program, created by Executive Order 11574,  is


jointly administered by the Corps and the Environmental Pro-

               3/
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

                                 4/
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-

                               5/
lief for section 13 violations.
     The most frequently litigated issue under the Refuse Act


has been what constitutes proscribed refuse matter.  In Uni_ted

                          6/
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
                          8/
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
                                    9/
was           L
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a conviction for discharging refuse into the river.


     Materials which have been adjudicated refuse matter in-

                                            14/
elude:  iron particle? and. an. oxl substance,    liquid petroleum


products,"™   the overburden of earth removed during strip-

       16/                          IT/
mining/    the ends of wood pilings,    floating timber and

                    IB/         19/      20/              21/
other wooden debris,    garbage,"    heat,    sewer sludge,


and many other inousuria] waste constituents.
The
     Refuse matter "flowing from streets and sewers and passing

                            22/
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

                     23/
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

                                                        27/
Douglas1 formulation of the streets and sewers exception    were


resolved in the recent federal district court opinion in Unilred

                                           28/
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-

                                             29/
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

                  30/
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

                                                     31/
 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

                                                            32/
 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

                                       33/
 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.
                                              34/
     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

                                                              IT/
       35/                                      36/
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
                                   38/
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

                                          39/
element of an aiding and abetting offense.      Limitations

         i
on the bi e-adth of strict liability for Refuse Act violations

                              40/
were imposed in one urareported    and in one recently reported

     £!/
case.     In the former, the Government was required to prove


that an individual defendant knew of and could have taken

                                         42/
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

                                      44/
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

       £5/
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

                     46/
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,

                  *z/
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

                             48/  •
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
                             10

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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"

        so/
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

                              51/
than supersede the Refuse Act.     Originally enacted in 1888,
        )

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

            52/
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.
                             11

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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-

                                                        53/
eral courts out of the Refuse Ac t cloth sounds in equity

         i
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

                    54/
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

                                                  55/
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
                              12

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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.

                 5Z/
 Armco Steel Corp.    and in United^States v. City of Asbury

     58/
 Park   on the strength of the Government's impressive proof


 of irreparable harm.   Arroco Steel's discharges  were  described

                                                        59/
 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

                                    60/
 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."
                              13

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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

                              62/
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-

                                                             63/
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-

                                              .64 /
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

                              65/
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

                   66/
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

                                                      6Z/
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

                                              68/
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

                                69/
surrounding) metropolitan area."
                              16

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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

                                    Zi/
Federal aid for individual projects.


     Among the statute's mandatory eligibility requirements for
         t

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

                                                    74/
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...."
                              17

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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
               zz/
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

                                                     z§/
facility will be operated and maintained efficiently.     By
           Z2/
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-
                              18

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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.

                          80/
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

        I
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
                              19

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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.
                              20

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                            III


                     federal Water Pol lution Control Act.
     When originally enacted in 1956, Section 10 of the Federal

                           81/
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

                                             82/
health or welfare of persons, was proscribed;    a cumbersome


administrative and judicial mechanism was provided fer enforcing

                          83/
this general proscription.


     The first of the protracted administrative steps is the

                      84/
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.
                              21

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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

          i
Governor of the State where the polluting discharge originates.

                                                       86/
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-
          i

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.
                              22

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     Procedural rules governing proceedings before the Hearing

                      " 87/
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

         88/
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

             89/
requirements.



                              23

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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

                             90/
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

                                                  92/
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.
                              24

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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
                                                               I

portions of interstate  waters within  their respective borders.'

                                          96/
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-

                             99/
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

                                          Ipl/
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
                                                                 1 05/
                                            26

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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 ,.

                                         109/
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
                                27

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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
                               29

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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

                                                        TU /
ll(b)(2).  Undtr sub.^-.c-.; on  ll(b)(-;-),  oersoru- .in charge---'

                                                                ii
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

            3 IT/
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
                               30

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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

                                                  123/
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)

           125 /
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
                               31

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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
                               34

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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
                              35

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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.
                              36

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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
                              37 .  .

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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 . ' '
                               39

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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.



                              41

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                       I^^
     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.
                               42

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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
                             43

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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
                              44

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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
                            45

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I
 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
                               46

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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

                                                                         ;
         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
I
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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
                               50

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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

                                                                 /,

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
                                             52

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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
                              53

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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
                              54

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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
                              55

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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

         160/
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.

                                                             161/
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-

                       x 162/
brane filter method (MF);     in Ohio both the membrane filter


method and the most probable number method (MPN) can be used to

                                               163/
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,

                                         164/
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

                                                    166/
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

                                                             167/
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

     168/
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.
                              59

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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.

                                        169 /
     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-

                 170/
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
                              60

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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

                             iZi/
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.
                              61

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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-

                                  172/
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

                               173/
that tampering can be detected.


     4.  All packages should be accompanied by a sample trans-

                                     174/
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

                         I

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-

                        ',)
cedures during cross-exaiaination.


     10.  Laboratory personnel are responsible for the care and

                         !

custody of the sample once it is handed over to them and should

                         (

be prepared to testify ti,iat the sarople was in their possession

                        I

and view or securely locked up at all times from the moment it
                        11

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

                                                             175/
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

                                               176/
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

                                                             1ZZ/
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

                 178/
scientxric field.      The procedures outlined in Standard


Methods are, with few exceptions, recognized and accepted in

                                             179 /
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".
                                              180/


     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

                  181/
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.
                              67

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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-

               183/
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
                                          68

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components require calibration approximately once


a month.  The main Disadvantage of shore stations
                    i

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.               '''

                    'i
b) Insitu Monitoring


     Automated insitu water quality monitoring is
                   i,

used primarily in studies which do not last more
                    i

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.
                         69

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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,
            «

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

           184/
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

                                                               185/
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

                                                     190/
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

    191/
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.
                              72

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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.
                                           73

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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

                     192/
...refuse matter...."      Similarly, section 10 of the FWPCA


makes those discharges ''causing or contributing" to pollution

                                                                123,
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...,„, /
                       194/


     Causation has been an issue in only two criminal Refuse

                                                      195/
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
                                            76

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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. )
                                 196

     The element of control explains the difference in result in
                                     I2Z/
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
                        !

Hall conclude that "bothj misfeasance and nonfeasance fall within

                                            198/
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
                        'i

responsibility for the harmful effects caused by the discharge


of waterborne wastes.  When the question does arise, the Agency's
                        i

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
                               78

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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,

                199/
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.
                           20Q/


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-

          201/
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

                      202/
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-

                                         203/
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).
                                           81

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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

                  204/
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

                                                    206/
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

                                                    207/
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.    ,
                                            208/

   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.
                       210/


             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. ..."
                     211/


                                                212/
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-

                                        213/
lishe-d scon after its enactment in 1967.      The first four
                                           85

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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.)

                            214/
     The legislative history^compounds rather than alleviates


the interpretative difficulties under the FOIA.  Commentators,


courts, and administrators have found most of the useful legis-

                                           215/
lative history in a Senate committee report     and in a House

                 216/
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-

            217/
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
                                          86

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relies primarily on the House Report, frequently ignoring the


more liberal Senate Report.  For this reason Professor Davis

                        '                                       218/
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

                        V
Regulations 101:0101.  Questions concerning the Agency's right
                        'i

to withhold requested information should be referred to the
                        'I

Deputy General Counsel in Washington, D. C.



                        'i'
Negotiations.

                        I,
     Historically, most of the civil Refuse Act cases have been


terminated by a negotiated settlement rather than by a litigated

                        }
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.
                                            87

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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
                                            88

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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
                                            89

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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
                                             90

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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
                        i

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

                        '<

be included in a consent decree.  Monthly reports should be
                        'i

filed with the Regional .Administrator indicating random sam-

                        I

pling and evaluation of the Company's effluent.  The extent of
                        i/

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
                                           91

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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.
                                           92

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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.
                              93

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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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I
                                             I
•                  Council on £nvironr,v;n!:al Qua lily,  "-i.ni.ial  Report .
                                                       _   _   -
                  Environmental  Ixiw Institute,  Envi '. oriental  Digest.
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I
•
                  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"
                                                   100

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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

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1




1

1



1

1

1

1


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


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                                           i

 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))

I                                           -I
                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.  ^     "
                            i
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
                                 «      „
           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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                                 3
                                       4

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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                                 •4
                                 <                .    --
          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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                                2


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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                                 7


  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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                                  8              .            '

                               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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                                9         .

 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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                                11               .
                            I

         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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                                12


         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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                                13

                     •   "    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
I



I



I



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I
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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                                2


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-
                           i
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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                                5


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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                       t ;
                       L $
                       ; i      '6

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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                                 7


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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                                 8


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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                                 9
                             *
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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                                             10


             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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                                11

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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                                             13


             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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                                14                          '

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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                                15


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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                                16


           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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                                17


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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                                18
                             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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                                20

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.

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                                                        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))

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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.

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                                                       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.

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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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 I
 •        ' .               ENVIRONMENTAL PROTLCliON AGENCY
                               SAMPLE TRANSMITTAL SHEET
                           -     \                    •
 •           TO:   (Laboratory Name & Address)'.
I             FROM:  (Field custodian- or Field Sampler)         .    •       "" "••
                                                     i
 I           Sample Ho.      Lab Number      Preservat I ve      Analysis Required

 i           ;              ;               :               '
 i           — -      - —  .    — —        .
 i           ___      . _      ___      ^ _ i_
                                        ..  .....
            To be completed in field: "'"   ------    ? ...... -
                                               I'-
                  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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