outlook Uncle Sam’s lawyers: a growing force on the pollution scene Government attorneys are finding that the law suit-or the threat of one-is a powerful enforcement weapon
994 Environmental Science & Technology
T o federal government environmental officials, the key word these days is enforcement. And enforcement, it turns out, is practically synonymous with enforcement of water pollution laws. These facts emerge from recent conversations between ES&T and two of the government’s top environmental lawyers : Assistant Attorney General Shiro Kashiwa, head of the Justice Department’s Division of Land and Natural Resources, and John Quarles, Jr., assistant administrator for Enforcement, and general counsel, Environmental Protection Agency ( E P A ) . Emphasizing water
Several factors have combined to make air pollution take the back seat to water pollution as far as enforcement is concerned. First and foremost, use of civil and criminal provisions of the 1899 Rivers and Harbors Act (often called simply “The Refuse Act”) has given what all government officials acknowledge as a tremendous boost to water pollution enforcement actions. Second, passage of amendments to the Clean Air Act at the end of last year have, in a sense, given polluters some breathing time; not until fairly lengthy standardsetting and implementation plan procedures have been gone through does the act specify recourse to legal action (see ES&T’S “Calendar for air pollution watchers,” February 1971, p 107 ) . Nonetheless, the air pollution arena has always been relatively inactive; only one federally prosecuted air pollution case has ever reached the courts. In that one, a chicken processing firm in Maryland was accusedand successfully prosecuted-of causing interstate air pollution. (Ironically enough, the firm is still operating, albeit using some different processes, and has not yet totally escaped the interest of the courts.) The action on the water pollution scene appears, in contrast, hectic indeed. “What we have done in this field is just tremendous,” says Justice’s Kashiwa with almost boyish enthusiasm. He cites the vast increase in use of civil (injunctive) procedures under the 1899 act which, prior to 1969, had rarely been used. Criminal provisions of the same act have also been invoked more frequently, says Kashiwa, although he points out that, in fact, they have been used regularly since 1899. In the decade of the sixties, about 40-50 criminal suits were filed each year by the Justice Department; the
number now has risen to a rate equivalent to over 150 annually. Kashiwa has a large staff to help him enforce the laws-120 attorneys in Washington and one in each of the 90 US. attorney’s offices around the country. The way they become involved in water pollution cases varies -government attorneys may or may not take the first step toward a suitbut Kashiwa points out that, in general, “We receive the cases. We don’t take samples.” Where a discharge is irregular or occasional, such as an oil spill, a U S . attorney in the field can proceed against the violator under criminal provisions of the 1899 act, assuming, of course, that he has adequate evidence. If, on the other hand, a discharge is continuous, Justice checks with EPA or relies on EPA and the Corps of Engineers to produce the incriminating evidence. Such instances of pollution are then proceeded against under civil provisions of the 1899 act. The object of the action is to enjoin the company doing the polluting from continuing to do so. . Under new guidelines issued by Kashiwa, a U S . attorney in the field can undertake a civil action without first checking with Justice in Washington, but he must still rely on EPA or the Corps for evidence. Of course, not all the cases that are filed inevitably end up in court. A preferable alternative, both for the company sued and for Justice, is for the company to file a stipulation that it plans to stop or otherwise control the ceptable to the government Change at EPA
Despite the key role-mandated by federal law-played by the Justice Department in prosecuting water pollution cases under the 1899 act and federal water pollution control law, much of the driving force for enforcement actually rests with the Environmental Protection Agency or, more specifically, with EPA’S Office of Enforcement, headed by John Quarles. “When EPA was formed (in December 1970), we had to take an agency with virtually no experience in litigation and get it ready to go to court” says Quarles, who came to EPA as part of Administrator William Ruckelshaus’ team of bright young lawyers. What Quarles found on his arrival in the water pollution area was a rather tentative enforcement agency-mQA, just
transferred to EPA from the Interior Department. Although numerous enforcement conferences were being held around the country, only one federal water pollution case had ever been brought to court, and that one was in 1960. “I have focused hardest on individually targeted enforcement actions, because they were totally missing when I arrived,” says Quarles. “You cannot have an enforcement agency without a capability to do that.” The fact that Quarles has, in fact, been able to single out companies and groups of companies in the way he wants to is in part due to the government’s use of the 1899 act, with its provision for civil suits. At regular intervals, Quarles’ office refers cases for action to Kashiwa’s office in Justice. Likewise, Kashiwa’s people keep EPA informed on criminal cases that may have been instituted by US. attorneys and not at EPA’S behest, and on Justice-initiated civil cases. As for the enforcement conference, that much-criticized mechanism for solving water pollution problems, Quarles believes that it still serves a purpose: “Conferences bring attention to a situation with many polluters, and they’re also useful in formulating implementation plans,” he says. Likewise, EPA has issued a large number of 180-day notices to municipalities, the first of them-to the cities of Atlanta, Cleveland, and De. troit-within a few days after the agency had been established. The 180-day notice is, at present, the most powerful legal weapon EPA can use against municipal polluters (domestic sewage being specifically exempted under the Refuse Act). But Quarles leaves no doubt that litigation is where the action is going to be. EPA officials are keeping a count of the actions filed (see table), and each week brings its new list of initiated actions. The potential power and all-around applicability of the Refuse Act is well illustrated by the government’s suit against Florida Power and Light Co. over alleged thermal pollution of Florida’s Biscayne Bay. The suit has now been settled out of court and the Justice Department has issued a consent decree (see this issue, p 983 j , representing a considerable victory for the government in this first case filed under civil provisions of the Refuse Act. Interestingly enough, though, out-
of-court settlement leaves unresolved an intriguing point-whether heat can be regarded as refuse within the meaning of the law. A pretrial hearing judge declined to rule that it was not, leaving the door open for future thermal pollution cases. If refuse can have a sufficiently broad meaning as to include heated water, as well as logs, oil spills, and industrial waste, then the utility of the 1899 act to the government is oh. vious indeec1. However, since so few cases have actually conne to trial, it is difficult t
