MEMORANDUM DECISION AND ORDER
CHRISTIE, Chief Judge:
The United States of America has filed this civil action seeking a permanent injunction against defendant’s continued discharge of effluent wastes into a navigable water of the United States, in violation of Section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 407, commonly known as the Refuse Act. The government alleges that the defendant, in the operation of its Number 93 Mine located in Marion County, West Virginia, has been regularly discharging effluent wastes into Pharoah’s Run, a non-navigable tributary of the Monongahela River, and that such wastes flow and are washed into the Monongahela River, a navigable water.
The defendant moves for dismissal of the action and contends in support of its motion, as a preliminary matter, that the Refuse Act is a navigation statute and not a pollution statute, that it was never intended to apply to or control the discharge of industrial wastes and that, absent an allegation of some obstruction or impediment to navigation, it is inapplicable to the conduct which the government seeks to enjoin.
I
In regard to this issue, the United States Supreme Court has twice indicated that the Refuse Act should be given a broad and liberal interpretation. See United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 890, 4 L.Ed.2d 903 (1960), where the Court said:
“We read the 1899 Act charitably in light of the purpose to be served. The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York, 283 U.S. 336, 342, 51 S.Ct. 478, 75 L.Ed. 1104, that ‘A river is more than an amenity, it is a treasure,’ forbids a narrow, cramped reading either of § 13 or of § 10.”
Again, in United States v. Standard Oil Co., 384 U.S. 224 at p. 226, 86 S.Ct. 1427 at p. 1428, 16 L.Ed.2d 492 (1966), the Supreme Court stated:
“(T)he history of this provision and of related legislation dealing with our free-flowing rivers ‘forbids a narrow, cramped reading’ of § 13.”
■Section 13 of the Refuse Act provides in pertinent part that:
“It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited . . . from the shore, wharf, manufacturing 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 whereby navigation shall or may be impeded or obstructed:
Provided
That the Secretary of the Army, whenever 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 waers . . .
Two separate offenses are created by this section: (1) the discharge of any refuse matter of any kind or description whatever into any navigable water or tributary thereof, and (2) the deposit of material on the bank of any navigable water or on the bank of any tributary thereof where it is likely the material will 'be washed into such navigable water and impede or obstruct navigation. United States v. Esso Standard Oil Company of Puerto Rico, 375 F.2d 621, 623 (3rd Cir. 1967); United States v. Ballard Oil Co. of Hartford, Inc., 195 F.2d 369, 370 (2d Cir. 1952); La Merced, 84 F.2d 444, 445 (9th Cir. 1936). The government has charged defendant with the discharge of effluent wastes including but not limited to acid, iron, sulfates, manganese and other dissolved and undissolved solids, in violation of the first clause of Section 13. The defendant would have the court interpret this clause to be applicable only if there is a resulting impediment or obstruction to navigation. However, such an interpretation must be rejected as a “narrow, cramped reading” of the statute contrary to the rationale of the Supreme Court in
Republic Steel
and
Standard Oil.
On the other hand, it seems clear from a literal reading of the clause that it extends to the discharge of any refuse matter of any kind into a navigable water or tributary thereof
regardless
of its effect on navigation. See United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468 (3rd Cir. 1972); United States v. Esso Standard Oil Co. of Puerto Rico, supra; United States v. Ballard Oil Co. of Hartford, supra;
La Merced,
supra. Defendant’s argument that “refuse matter,” as used in the statute, does not encompass the discharge of acid, iron, sulfates, manganese and other dissolved and undissolved solids is likewise rejected.
II
The next issue which concerns us is whether, given a violation of Section 13 of the Refuse Act, the respective remedies provided by Congress for such a violation are exclusive and do not allow for the injunctive relief sought by the government. The relevant provisions are found in Section 16 of the Act, 33 U.S.C.A. § 411, and provide:
“Every . . C corporation that shall violate . . . the provisions of Section 407 ... of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500, nor less than $500 . . . .”
The defendant predictably argues that this penalty provision is exclusive and that there are no stipulations in the Act which provide for injunctive relief to enforce the provisions of Section 13. It is pointed out that Section 12 of the Act, 33 U.S.'C.A. § 406, which provides penalties for violations of Section 10, 33 U.S.C.A. § 403, expressly authorizes the injunctive remedy. Defendant argues, therefore, that the lack of such an authorization in Section 16 should be taken to mean that Congress did not intend the 'United States to be able to obtain
civil injunctive relief as a remedy for a violation of Section 13. A similar argument was offered before the United States Supreme Court in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). There the petitioners argued that Section 16 provided exclusive criminal penalties for a violation of Section 15 of the Refuse Act.
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MEMORANDUM DECISION AND ORDER
CHRISTIE, Chief Judge:
The United States of America has filed this civil action seeking a permanent injunction against defendant’s continued discharge of effluent wastes into a navigable water of the United States, in violation of Section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 407, commonly known as the Refuse Act. The government alleges that the defendant, in the operation of its Number 93 Mine located in Marion County, West Virginia, has been regularly discharging effluent wastes into Pharoah’s Run, a non-navigable tributary of the Monongahela River, and that such wastes flow and are washed into the Monongahela River, a navigable water.
The defendant moves for dismissal of the action and contends in support of its motion, as a preliminary matter, that the Refuse Act is a navigation statute and not a pollution statute, that it was never intended to apply to or control the discharge of industrial wastes and that, absent an allegation of some obstruction or impediment to navigation, it is inapplicable to the conduct which the government seeks to enjoin.
I
In regard to this issue, the United States Supreme Court has twice indicated that the Refuse Act should be given a broad and liberal interpretation. See United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 890, 4 L.Ed.2d 903 (1960), where the Court said:
“We read the 1899 Act charitably in light of the purpose to be served. The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York, 283 U.S. 336, 342, 51 S.Ct. 478, 75 L.Ed. 1104, that ‘A river is more than an amenity, it is a treasure,’ forbids a narrow, cramped reading either of § 13 or of § 10.”
Again, in United States v. Standard Oil Co., 384 U.S. 224 at p. 226, 86 S.Ct. 1427 at p. 1428, 16 L.Ed.2d 492 (1966), the Supreme Court stated:
“(T)he history of this provision and of related legislation dealing with our free-flowing rivers ‘forbids a narrow, cramped reading’ of § 13.”
■Section 13 of the Refuse Act provides in pertinent part that:
“It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited . . . from the shore, wharf, manufacturing 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 whereby navigation shall or may be impeded or obstructed:
Provided
That the Secretary of the Army, whenever 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 waers . . .
Two separate offenses are created by this section: (1) the discharge of any refuse matter of any kind or description whatever into any navigable water or tributary thereof, and (2) the deposit of material on the bank of any navigable water or on the bank of any tributary thereof where it is likely the material will 'be washed into such navigable water and impede or obstruct navigation. United States v. Esso Standard Oil Company of Puerto Rico, 375 F.2d 621, 623 (3rd Cir. 1967); United States v. Ballard Oil Co. of Hartford, Inc., 195 F.2d 369, 370 (2d Cir. 1952); La Merced, 84 F.2d 444, 445 (9th Cir. 1936). The government has charged defendant with the discharge of effluent wastes including but not limited to acid, iron, sulfates, manganese and other dissolved and undissolved solids, in violation of the first clause of Section 13. The defendant would have the court interpret this clause to be applicable only if there is a resulting impediment or obstruction to navigation. However, such an interpretation must be rejected as a “narrow, cramped reading” of the statute contrary to the rationale of the Supreme Court in
Republic Steel
and
Standard Oil.
On the other hand, it seems clear from a literal reading of the clause that it extends to the discharge of any refuse matter of any kind into a navigable water or tributary thereof
regardless
of its effect on navigation. See United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468 (3rd Cir. 1972); United States v. Esso Standard Oil Co. of Puerto Rico, supra; United States v. Ballard Oil Co. of Hartford, supra;
La Merced,
supra. Defendant’s argument that “refuse matter,” as used in the statute, does not encompass the discharge of acid, iron, sulfates, manganese and other dissolved and undissolved solids is likewise rejected.
II
The next issue which concerns us is whether, given a violation of Section 13 of the Refuse Act, the respective remedies provided by Congress for such a violation are exclusive and do not allow for the injunctive relief sought by the government. The relevant provisions are found in Section 16 of the Act, 33 U.S.C.A. § 411, and provide:
“Every . . C corporation that shall violate . . . the provisions of Section 407 ... of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500, nor less than $500 . . . .”
The defendant predictably argues that this penalty provision is exclusive and that there are no stipulations in the Act which provide for injunctive relief to enforce the provisions of Section 13. It is pointed out that Section 12 of the Act, 33 U.S.'C.A. § 406, which provides penalties for violations of Section 10, 33 U.S.C.A. § 403, expressly authorizes the injunctive remedy. Defendant argues, therefore, that the lack of such an authorization in Section 16 should be taken to mean that Congress did not intend the 'United States to be able to obtain
civil injunctive relief as a remedy for a violation of Section 13. A similar argument was offered before the United States Supreme Court in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). There the petitioners argued that Section 16 provided exclusive criminal penalties for a violation of Section 15 of the Refuse Act. In rejecting this argument, the Court stated at pp. 201-202, 88 S.Ct. at p. 386:
“Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, [52 U.S. 229], 11 How. 229, [13 L.Ed. 675] (1851); United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747 (1888); Sanitary District v. United States, . . . [266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925)]. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation.”
Also in holding that injunctive relief was available in United States v. Republic Steel Corp., supra, the Court states at p. 492 of 362 U.S., at p. 890 of 80 S.Ct.:
“Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation.”
Although
Republic Steel
concerned Section 10 of the Refuse Act and
Wyandotte
involved the remedies available for a violation of Section 15, both cases clearly favored injunctive relief. Moreover, other recent federal court decisions have held that injunctive relief for alleged violations of Section 13 is proper. See Connecticut Action Now, Inc. v. Roberts Plating Company, Inc., 457 F.2d 81 (2d Cir. 1972); United States v. Armco Steel Corporation, 333 F.Supp. 1073 (S.D.Texas 1971); Bass Anglers Sportsman’s Society of America v. Scholze Tannery, Inc., 329 F.Supp. 339 (E.D.Tenn.1971); United States v. Florida Power and Light Company, 311 F.Supp. 1391 (S.D.Fla.1970). Accordingly, this court concludes that injunctive relief upon an action brought by the government for a violation of Section 13 of the Refuse Act may properly be granted.
Ill
We finally concern ourselves with what effect, if any, the Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, has upon the appropriate provisions of the Refuse Act. Section 4 of the 1972 Amendments provides :
“Savings Provision
“(a) No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act shall abate by reason of the taking effect of the amendment made by section 2 of this Act. The court may, on its own motion or that of any party made at any time within twelve months after such taking effect, allow the same to be maintained by or against the Administrator or such officer or employee.”
Section 402(k) of the Amendments provides :
Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application.”
“. . . Until December 31, 1974, in any case where a permit for a discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation of . the Act of March 3, 1899, unless the
Although the savings provisions of the 1972 Amendments refer only to the Federal Water Pollution Control Act as it existed immediately prior to the enactment of the Amendments, it seems clear from statements made upon consideration of the Amendments,
their gen
eral legislative background,
and the fact that the Refuse Act was not explicitly repealed, that it was the intent of Congress that the provisions- of the Refuse Act remain in effect as part of its overall water pollution control scheme.
Defendant states by affidavit, dated November 14, 1972, that it made initial application for a discharge permit on June 29, 1971, and filed a second part of the application on September 30, 1971, but through no fault of its own, the permit application has not been acted upon. Under 33 C.F.R. 209.-131(d)(4), all discharges to which the Refuse Act is applicable are unlawful unless authorized by a permit. The mere filing of an application requesting permission to discharge or deposit into navigable waters or tributaries thereof do not preclude legal action for Refuse Act violations. Nevertheless, it is submitted by defendant that since Section 402(k) of the 1972 Amendments supersedes this regulation, this civil action is rendered moot until final administrative action has been taken upon the pending permit application. Thus, defendant urges the court to apply Section 402 (k) to pending litigation so that even though Section 13 of the Refuse Act may be saved, it is only with respect to current prosecutions for which a defendant has no permit application pending. All other prosecutions would be dismissed until there is a final administrative action taken on permit applications. Although there may be some ambiguity surrounding the application of 402(k), we do not believe it was intended to have a retroactive effect upon pending suits and actions. Rather, it appears from the legislative background relating to passage of the 1972 Amendments, as well as the absence of explicit language which dismisses pending litigation, that it was the intent of Congress that 402(k) should have a prospective effect only and was not intended to apply to pending litigation '(See footnote 2).
For the reasons above shown, this Court concludes that it has jurisdiction to adjudicate the present litigation and to issue appropriate relief therein. It is accordingly hereby
Ordered that the defendant’s motion to dismiss be, and it is, hereby overruled.