UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
April 13, 1973
UNITED STATES of America, Plaintiff,
John V. LINDSAY, as Mayor of the City of New York, et al., Defendants
Travia, District Judge.
The opinion of the court was delivered by: TRAVIA
DECISION AND ORDER
Travia, District Judge.
The genesis of this now consolidated lawsuit can be traced to three (3) separate actions instituted by the United States on July 18, 1972. Originally, the three (3) suits were filed in separate districts, viz., Southern District of New York; Eastern District of New York; the District of New Jersey. The scope and content of all three (3) complaints were identical except insofar as the named corporate defendants may have differed.
In all three (3) actions, both municipal defendants (primary) and private corporate defendants were named.
Because of the obvious similarity of these "separate suits", an order to consolidate the actions in the Eastern District of New York was signed, on consent of all parties, on December 11, 1972.
For the purposes of the present decision, this court does not intend to rule in toto on the many legal issues attendant to a case of this nature. Nor does the court purport to establish all the rights and liabilities of all parties in this action. Rather, at this time, the court will only address itself to the two (2) motions presently pending. The first motion the court is concerned with herein was made by the defendants, The City of New York, its Mayor, John V. Lindsay, its Administrator of the Department of Environmental Protection, Jerome Kretchmer, and its Commissioner of the Department of Water Resources, Martin Lang.
This motion was filed on October 13, 1972 and requested, inter alia, the court to dismiss this action pursuant to Rule 12(b) of the F.R. of Civ. P. or, that in the alternative, the court refer the case to the Environmental Protection Agency of the United States under the doctrine of primary jurisdiction.
The second motion with which the court is concerned was made by the plaintiff, United States Government, by way of an Order to Show Cause, filed herein on December 13, 1972. By this motion, the plaintiff seeks, pursuant to Rule 56 of the F.R. of C.P., summary judgment in favor of the Government and against The City of New York and its named municipal officials.
Before considering the applicable law on the subject, a brief summary of the allegations in the complaint and the respective motions will be necessary to isolate and crystalize the specific legal issues involved.
Although the complaint and its numerous allegations are extensively detailed, the plaintiff's suit, in essence, is intended to prevent all the defendants, (municipal and corporate), from continuing to deposit industrial pollutants into the navigable water of the United States.
The plaintiff employs basically two legal theories in support of its complaint. First, the complaint alleges that all the defendants are violating certain sections of the Rivers and Harbors Appropriation Act of 1899 [Title 33 U.S.C. § 401 et seq.; 30 Stat. 1151] by discharging industrial pollutants primarily (though not only) via the municipal sewer system into the navigable water of the United States. More specifically, the complaint charges that the defendants' activities are in violation of Title 33 U.S.C. § 407 [The Refuse Act], Title 33 U.S.C. § 411 and Title 33 U.S.C. § 441 [The New York Harbor Act].
The second theory asserted by the plaintiff is that the municipal defendant and its officers have created a public nuisance under the federal common law.
With respect to the relief requested in the complaint, suffice it to say that the Government seeks to enjoin and restrain all the defendants from any future activities which would continue the discharge or deposit of industrial pollutants into the navigable water of the United States in violation of the federal common or statutory law.
This action is properly before this court since the Federal Water Pollution Control Act of 1972, by its very terms saves actions, such as the action now before the court, commenced prior to the date of its enactment. The court is, however, compelled by forthrightness and candor to refer to a question posed by it during the oral argument of these motions and the reason for such question.
In a statement issued in November, 1972, the United States Attorney, Southern District of New York, quite understandably, stated among other things: "Almost without warning the rug was pulled out from under this entire enforcement effort." He further stated: "Congress enacted amendments to the Federal Water Pollution Control Act, just before it adjourned last month, effectively repealing The Refuse Act of 1899 as it applies to ongoing industrial discharges." He continued, stating: "That simple prohibition against harmful discharges was superseded by new, complex administrative procedures as part of a generally commendable, comprehensive national abatement program." Congress has for many years been working and holding hearings on the problems of water pollution which culminated in the enactment of the 1972 Federal Water Pollution Control Act. The very able United States Attorney, at the time of the commencement of this action, was aware of the action by Congress and that the proposed new law would bring within its provisions, by specific reference, municipal sewer systems. This knowledge must have prompted the early start of this action under the provisions of The Refuse Act of 1899, which contains a provision that exempts refuse "flowing from streets and sewers . . .", forcing this court's ruling on whether the exemption applies in the case at bar to municipal sewers.
THE MOTIONS AT BAR
The court will now turn to the aforementioned motions. The City of New York's motion to dismiss the complaint is made solely on the ground that the particular statutes alleged to have been violated do not apply to municipal sewer systems. In fact, the City argues that the clear language of the statutes specifically exempts all sewage "flowing from streets and sewers and passing therefrom in a liquid state . . . ."
As for the plaintiff's "common law" theory, the defendant City argues that "federal common law may be fashioned only 'where no applicable federal statute exists.'"
Thus, the City argues that the Federal Water Pollution Control Act, and its several amending acts, show a clear congressional intent to limit the Government's common law remedies to situations not covered by the statutes.
Finally, the City argues that because of this suit's unique complexity, and because of the administrative and other statutory remedies available to the Government, this court should employ the doctrine of primary jurisdiction and refer the case to the Environmental Protection Agency of the United States (hereinafter the E.P.A.).
As for the second motion now pending before this court, it is considerably less complex and involved. The plaintiff has simply requested that the court grant summary judgment against the defendants because they are clearly acting in violation of the specified federal statutes, viz., The Refuse Act (Title 33 U.S.C. Sec. 407) and The New York Harbor Act (Title 33 U.S.C. Sec. 441).
Thus, after a consolidated reading of both motions, the issues now pending before this court may be stated as follows:
1. Do the "exception clauses" of The Refuse Act (Title 33 U.S.C. § 407) and The New York Harbor Act (Title 33 U.S.C. § 441) exempt municipal sewer systems from prosecution under these sections of the Rivers and Harbors Appropriation Act?
2. May the Government sue a municipal defendant for alleged acts of polluting under the theory of common law nuisance notwithstanding the fact that there is existing a federal statutory remedy, viz., The Federal Water Pollution Control Act?
3. Should the court employ the doctrine of primary jurisdiction and, thus, refer this case to the E.P.A.?
THE EXCEPTION CLAUSES
The Refuse Act (§ 407) and The New York Harbor Act (§ 441) are both products of late nineteenth century legislative proceedings.
In part, these Acts provide:
The Refuse Act, Title 33 U.S.C. § 407 --
"It 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, barge, or other floating craft . . . or from the shore, wharf, manufacturing establishment . . . 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 . . . ." (Emphasis added.) Title 33 U.S.C. § 407.
The New York Harbor Act, Title 33 U.S.C. § 441 --
"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 matter of any kind, other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor subject to sections 441 to 451b of this title . . . is strictly forbidden . . . ." (Emphasis added.) Title 33 U.S.C. § 441.
As was stated earlier in a brief margin notation, the legislative history of both these statutes indicates that they are, in fact, products in whole or in part, of prior legislation. A simple reading of the plain language of these statutes, without more, creates an impression that they were intended only as anti-obstruction statutes to facilitate navigation. Such a "restrictive reading", however, has been held to be inappropriate by a majority of the Supreme Court in its decision in United States v. Standard Oil Co.
In that case, Mr. Justice Douglas, writing for the majority, and commenting on the meaning of The Refuse Act, stated in part:
"It is plain from its legislative history that the [injury] to our water-courses sought to be remedied [by the Refuse Act] was caused in part by obstacles that impeded navigation and in part by pollution . . . ." United States v. Standard Oil Co., id. at 228-229, 86 S. Ct. at 1429, 16 L. Ed. 2d at 495.
In light of Mr. Justice Douglas' statement supra, one must conclude that the legislators of the late nineteenth century intended to criminally prosecute all parties whose actions either obstructed navigation or endangered the environment unless they came within the exception clause.
Without exception, most scholars would agree that as a result of Mr. Justice Douglas' decisions in the Standard Oil Co. case, and its companion case United States v. Republic Steel Corp. et al., infra, The Refuse Act became a newly discovered, or at least newly revived, tool to protect the environment. Whether or not one considers the majority's opinion to have "manufactured a result in view of the pollution crises in this country", one must clearly be impressed by the number of cases since Standard Oil Co. that have carried the ecological standard forward via the gilded sword of The Refuse Act.
For the purposes of the case at bar, it is also significant to note that The New York Harbor Act (Title 33 U.S.C. § 441) also appears, in the view of the majority in United States v. Standard Oil Co., supra, to enjoy an equally prestigious position in the ecological arsenal.
In considering the meaning of the "exception clauses" in these two statutes, we must begin with the now, well celebrated, Supreme Court case of United States v. Republic Steel Corp. et al.
After examining virtually every reported case that has ever considered the meaning of the "exception clauses", it has become apparent that Mr. Justice Douglas' majority opinion in Republic Steel is in fact the backbone of all subsequent decisions on the subject. None of the cases had in their fact pattern a defendant municipality, whose municipal sewer system was involved, through which system flowed refuse from streets and sewers and passing therefrom in a liquid state.
The facts in Republic Steel may be summarized as follows: The defendant steel companies were sued for depositing industrial solids in the Calumet River, via their connecting sewer system, without first obtaining a permit to so deposit as required by the statute. It was alleged that the deposit of these solids over an extended period had a shoaling effect, which, in time, decreased the depth of the river channel. Thus, it was charged that the deposits were obstructing navigation.
The defendants argued that the shoaling effect was not an obstruction within the meaning of the statute.
In addition, they also claimed that because the deposits were carried via a sewer system and "passed therefrom in a liquid state", they came within the exception clause.
The Court, in considering the language of the statute and the contentions of the corporate defendants, had little doubt that the deposits were, in fact, constructed obstructions within the meaning of section 10 of the Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. § 403). In speaking for the majority, Mr. Justice Douglas commented:
"The reach of § 10 seems plain. [Excavations] or fills . . . that alter or modify 'the course, location, condition, or capacity of' a navigable river [may not] be made unless 'the work' has been approved by the Secretary of the Army . . . We can only conclude that Congress planned to ban any type of 'obstruction,' not merely those specifically made subject to approval by the Secretary of the Army. . . ." (Emphasis added.) United States v. Republic Steel Co. et al., supra, at 486, 80 S. Ct. at 887, 4 L. Ed. 2d at 907.
It was, thus, clear that the deposits were "obstructions" and, therefore, the defendants' acts were in violation of the law unless the defendants could convince the Court that the "exception clause" in § 13 (The Refuse Act) applied to them. Again, however, the majority opinion outflanked the defendants' maneuver. Mr. Justice Douglas, in commenting on the meaning of the "exception clause", stated:
"As noted, § 13 [Refuse Act] bans the discharge in any navigable water of 'any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.' The materials carried here are 'industrial solids,' as the District Court found. The particles creating the present obstruction were in suspension, not in solution. Articles in suspension, such as organic matter in sewage, may undergo chemical change. Others settle out. All matter in suspension is not saved by the exception clause of § 13. Refuse flowing from 'sewers' in a 'liquid state' means to us 'sewage' . . . The fact that discharges from streets and sewers may 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. . . ." (Emphasis added.) United States v. Republic Steel Co. et al., supra, at 490-491, 80 S. Ct. at 889-890, 4 L. Ed. 2d at 909.
Thus, the Supreme Court, by a 5-4 decision, held that the exception clause was intended to permit "sewage" to flow from streets and sewers in a liquid state into the navigable waters notwithstanding the fact that "some articles" which could impair navigability were suspended in the liquid sewage.
However, the exception clause could not be a sanctuary for private manufacturing concerns whose deposits, consisting totally of industrial solids, are discharged via their sewer systems into the navigable waters to the extent that they obstruct navigation.
As in the Standard Oil Co. case, supra, Mr. Justice Harlan again authored the principal dissenting opinion. It was his position that the real legislative meaning of the exception clause is obscure. In commenting further, he observed:
"[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 practice of sewage disposal at the time, but also is impossible to achieve even under present-day technology . . . [ The ] statute affords no basis for differentiating, as the Court [ majority ] suggests, between industrial and domestic refuse. . . ." (Emphasis added.) United States v. Republic Steel Co. et al., supra, at 506, 80 S. Ct. at 897-898, 4 L. Ed. 2d at 917.
As a result of the Court's decision in Republic Steel, supra, courts throughout the country have used the majority's opinion defining "refuse" to protect the environment against any number or type of private industrial polluters.
Until very recently, virtually all reported cases belonging to the Republic Steel "genus" were suits by the Government against private corporations for their industrial pollution of the navigable waters of the United States. Also, in most instances, the vehicle of pollution, viz., the sewer system, was, if not totally owned by the corporate defendants, at least controlled by them. The major exception to this interesting pattern of prosecutions and circumstances is the case of United States v. City of Asbury Park,
which was decided on February 17, 1972, scarcely six (6) months before the complaints in the case at bar were filed. In Asbury Park, supra, the Government brought an action against the municipality alleging that their practice of discharging "sludge", not "sewage", into the Atlantic Ocean, was in violation of Title 33 U.S.C. § 407. As expected, the Government relied on Mr. Justice Douglas' opinions in Republic Steel and Standard Oil. It is interesting to note that the facts in the case show that the municipal defendant was discharging the sludge from a single treatment facility into the Atlantic Ocean via fall out pipes which extended approximately 1000 feet into the Atlantic Ocean. This discharging was not directly from the streets and sewers of the municipality. Rather, the municipal sewers fed into the treatment facility which in turn "processed" the raw sewage and then during a three month period each year the remaining sludge was force pumped through the fall out pipes into the ocean. The court found that this sporadic process of force pumping sludge residue into the navigable water was in violation of The Refuse Act.
In view of the aforementioned decisions, certain observations seem appropriate before turning to the case at bar. The legislative purpose and intent of the "exception clauses" is at best obscure.
Likewise, the legislator's definition of the word "sewage" is also clouded. It is, however, submitted that the Court in Republic Steel, while defining "refuse" as simply "sewage", did not qualify "sewage" as only that material or substance which consists totally of organic wastes. In fact, in Republic Steel, the Court's single reference to organic material was made by way of example to show that in some instances even organic material may cause an obstruction to navigation.
Thus, this court does not believe that the Supreme Court's construction of The Refuse Act and its attendant "exception clause" necessarily prohibits a municipality from discharging all matter other than organic wastes.
The Supreme Court in 1960 was well aware of the fact that The Refuse Act legislators knew that the municipal sewer systems of the day did not, and probably could not, selectively discharge on the basis of organic content. There is no evidence to substantiate the belief that the majority in Republic Steel closed their eyes to the fact that many late nineteenth century municipalities had in fact developed complex sewer systems which were used to carry all sewage wastes from the inner city to a river bank or shoreline.
In essence, the Government's motion for summary judgment against The City of New York is based on the argument that the Supreme Court has held that a municipal sewer system which discharges, in part, sewage of a non-organic nature may not seek the protection of the "exception clause." Municipal sewers and urban industries discharging, in part, non-organic wastes into such sewers, are not post-Refuse Act phenomena. This court does not believe that the Government's position is supported in law or a fortiori in reason.
The defendant in the case at bar is not a private industry discharging only concentrated industrial solids into a navigable waterway. The sewer system of The City of New York is used not only to carry some industrial wastes, but also it is relied upon by virtually every resident and visitor to carry away the daily organic human wastes. Such a dependency by an entire city is surely distinguishable from the profit margins of a private corporation. The Government's almost total reliance on United States v. Republic Steel and its "family of cases"
is mislaid. Moreover, the City of Asbury Park, although a member of the "family" and a municipal defendant, was clearly not discharging sewage from streets and sewers in a liquid state.
The case is, therefore, plainly distinguishable from the case at bar.
After considering all the reported cases, the legislative history, such as it exists, the various memoranda submitted by both sides, and the recent legislative discussion on the meaning of The Refuse Act, this court is compelled to find that the discharges "flowing from the streets and sewers in a liquid state" of the defendant The City of New York, are properly within the "exception clauses" of both The Refuse Act and The New York Harbor Act. This decision, however, should not be viewed as one designed to champion an anti-ecology movement. On the contrary, this court is aware that the continued pollution of our waterways is one of the more unfortunate facts of life in modern day America. There is no doubt that the defendants can, and must, through the aid of state and federal channels, improve its sewage treatment facilities. The Congress has gone to great lengths to update and close The Refuse Act gaps on the water pollution problem.
This court believes that such statutes as the Federal Water Pollution Control Act of 1972
offers the Government sufficient and proper regulatory powers to correct the problem of water pollution caused by municipal sewer systems. These more recent enactments are certainly designed to close the gaps and foster local, state and federal cooperation, and thus, they offer a more appropriate remedy to the case at bar.
As for the defendants' second claim, that the plaintiff may not resort to a common law remedy, this court is not prepared, at this time, to determine such an issue.
The Government, in support of its common law claims for relief, refers this court to the Supreme Court case of Illinois v. City of Milwaukee.
It points out that the Supreme Court opinion held:
"[That] litigants are not limited to the remedies specifically provided by Congress. . . ." Plaintiff's Supplemental Memorandum of Law In Opposition to Motion to Dismiss the Complaint, at 16-17 (filed January 17, 1973).
Further, it argues that the Government should be free to pick and choose its weapons for cleaning our waters. This court's reading of Illinois v. City of Milwaukee, supra, is not, however, in tandem with the plaintiff's interpretation. As was clearly stated by the Court:
"The remedy sought by Illinois is [ was ] not within the precise scope of remedies prescribed by Congress. . . ." (Emphasis added.) Illinois v. City of Milwaukee, supra, at 103, 92 S. Ct. at 1392, 31 L. Ed. 2d at 722.
Thus the Court concluded:
"The application of federal common law to abate a public nuisance in interstate or navigable waters is not inconsistent with the Water Pollution Control Act. Congress provided in § 10(b) of that Act that, save as a court may decree otherwise in an enforcement action, 'State and interstate action to abate pollution of interstate or navigable waters shall be encouraged and shall not . . . be displaced by Federal enforcement action.'" (Emphasis added.) Illinois v. City of Milwaukee, supra, at 104, 92 S. Ct. at 1393, 31 L. Ed. 2d at 723.
As is indicated by the above quoted language, the Court, in City of Milwaukee, was addressing itself to situations involving suits between states to abate water pollution.
The case at bar is a suit by the Federal Government against a municipality and other private individuals. Further, the Government here does not claim that their remedy "is not within the precise remedies proscribed by Congress."
In view of the fact that the Federal Water Pollution Control Act of 1972 is not yet totally operational, this court, out of an abundance of caution, will not, at this time, rule on the merits of the defendants' second claim for dismissal of the plaintiff's common law nuisance action.
Finally, with respect to the defendants' third claim that the court should refer this case to the E.P.A. under the doctrine of primary jurisdiction, again this court wlll not at this time grant such relief. Such relief would necessarily involve a court-agency relationship which, at this time, does not seem appropriate for the disposition of these motions.
Accordingly, it is
Ordered, that the motion of the municipal defendant and its named officers to dismiss the statutory claims in the complaint is granted. The defendants' requests to dismiss the common law claim and, to refer, in the alternative, this case to the E.P.A. under the doctrine of primary jurisdiction are denied without prejudice to renew at a more appropriate time; and it is further
Ordered, that the Government's motion for summary judgment, against the municipality and its named officers on the statutory claims in the complaint, viz., Title 33 U.S.C. § 407 and Title 33 U.S.C. § 441, is denied.