LAKE CARRIERS'ASS'N v. Kelley

Decision Date16 December 1981
Docket NumberCiv. No. 36194.
Citation527 F. Supp. 1114
PartiesLAKE CARRIERS' ASSOCIATION, et al., Plaintiffs, v. Frank J. KELLEY, Michigan Attorney General, et al., Defendants.
CourtU.S. District Court — Western District of Michigan

Scott H. Elder, Cleveland, Ohio, Prentiss M. Brown, Jr., St. Ignace, Mich., for plaintiffs.

Russell E. Prins, Asst. Atty. Gen., Lands, Lakes & Leases Div., Lansing, Mich., Marlin F. Scholl, Detroit, Mich., for defendants.

Before EDWARDS, Chief Circuit Judge, KEITH, Circuit Judge and PRATT,1 District Judge.

MEMORANDUM OPINION AND ORDER

GEORGE CLIFTON EDWARDS, Jr., Chief Circuit Judge.

After years of preliminary litigation,2 the complaints of shipowners on the Great Lakes against the efforts of the State of Michigan to prohibit their ships' pollution of its waters by emission of sewage, either raw or treated, is back before this Court. Michigan clearly has, by action of its Legislature and Governor, and more recently, by interpretation of the applicable statute by the Michigan Supreme Court, undertaken to make it unlawful for any shipping to discharge either untreated sewage or treated sewage within its state boundaries. Michigan's boundaries encompass Great Lakes shipping lanes and through Lakes Superior, Michigan, Huron and Erie and through the lakes and rivers interconnecting them — thus potentially applying Michigan's pollution standard to most shipping on the Great Lakes whether interstate or international.

This case presents several important, strongly disputed and difficult questions. First, plaintiffs contend that Michigan acted prematurely in its efforts to take advantage of Congress' delegation of authority to the states to "completely prohibit the discharge from all vessels of any sewage, whether treated or not."

Second, plaintiffs argue that the federal statute authorizing states to prohibit all sewage discharges3 is unconstitutional because it violates the purpose of uniformity which is implicit in the U.S. Constitution's grant of admiralty jurisdiction to the federal courts.4

Third, plaintiffs argue that the statutory delegation of authority just referred to also violates the federal constitution's reservation to the federal government of treaty-making powers in relation to foreign nations—here particularly Canada.

Recognizing as we do that each of plaintiffs' arguments is substantial, we hold (1) that Michigan's actions on this whole record should not be dismissed as premature, (2) that the congressional delegation of authority to the states represents a uniform policy decision by the U.S. Congress which does not offend the Admiralty clause, and (3) that the State and Federal Acts in question do not contravene the treaty-making powers of Congress.

THE PREMATURITY ISSUE

The federal enactments upon which plaintiffs rely are complicated, confusing and arguably contradictory. As a consequence, we search for interpretation which accords with the legislative history, the congressional purposes and the contemporaneous interpretation of the disputed issues by the agencies to which Congress gave responsibility for enforcement or effectuation of the Act.

The Michigan Watercraft Pollution Control Act of 1970, 1970 Mich.Pub.Acts 167 (Mich.Comp.Laws Ann. § 323.331 et seq. (1976)) placed in effect a determination by the state that a prohibition against release of any sewage treated or untreated was essential to "the protection and enhancement of the quality of some or all of the waters within such state." This statute by its terms became effective before any of the various dates contained in the federal legislation — and again by its terms — is still in effect. In addition, on two separate occasions Michigan (through its Governor) petitioned the federal Environmental Protection Agency to place in effect regulations banning release of any sewage into Michigan waters. The first such application filed in early 1975 was denied by the Environmental Protection Agency because it did not contain "substantiating information" that Michigan waters required greater protection than was available generally through the federal enactment.

Michigan thereupon furnished by certification information pertaining to pumpout facilities available for use by shipping within Michigan's waters and renewed its request this time under § 1322(f)(3) of the federal Act. On January 9, 1976, the Administrator of the Environmental Protection Agency granted the certification Michigan had requested reciting as follows:

"On October 9, 1975, notice was published that the State of Michigan had requested a determination by the Administrator, Environmental Protection Agency, pursuant to section 312(f)(3) of Pub.L.92-500, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Michigan waters of Lakes Michigan, Huron, Superior, Erie and St. Clair, all waterways, connected thereto, and all inland lakes.
"The information submitted to me certifies that as of 1972 there were 49 public marinas, 104 commercial marinas available for use to the public, and 19 private marinas not available to the public, all of which have pumpout facilities to serve the recreational boating public. The State estimates that the number of recreational pumpout facilities now exceeds 200. It has been certified by the State that the treatment of wastes from each pump-out facility conforms to State and/or Federal requirements as defined in permit requirements. Moreover it has been certified by the State that although adequate pump-out stations are not available at all commercial ports, licensed septic tank haulers are reasonably available on call or through contract to pump out commercial vessels at any port in Michigan. For the 20 major ports that service commercial vessels, at least one such hauler is available for each of only three ports, and for each of the remaining ports there are up to eight such haulers available. In populated areas such haulers are available within a 15-mile radius from the port, whereas in upper Michigan's unpopulated areas such haulers are available within a 25-mile radius from the port. As part of the license, such haulers must deposit wastes into State-approved municipal treatment facilities.
"The information submitted to me certifies further that the quality or concentration of chemicals presently used as preservatives or odor suppressants for holding tanks will not prove a deterrent to the operation of the receiving municipal wastewater treatment plant. Such septic tank waste haulers are being and can be used successfully within the State of Michigan to pump out commercially the vessel or from a dockside holding vessel holding tanks either directly from the tank to which sewage is pumped using the ship's pump.
"The Agency received approximately 169 comments in support of the Michigan petition. Approximately 26 comments were received opposing the petition; most of these commented on the general inadequacy of recreational pump-out facilities. Specifically, those opposing the petition variously complained of insufficient suction to pump out all types of recreational boats, inadequate operating hours, inconvenient locations, and excessive time requirements for pump out.
"Following an examination of the petition and supporting information, and in consideration of all comments received pursuant to the October 9 FEDERAL REGISTER notice, I have determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Michigan waters of Lakes Michigan, Huron, Superior, Erie and St. Clair, all waterways connected thereto, and all inland lakes. This determination is made pursuant to section 312(f)(3) of Pub.L.92-500."

41 Fed.Reg. 2274 (Jan. 15, 1976).

A major part of our procedural problem concerns what Congress meant in the following three enactments: (1) Congress adopted a section entitled "Federal Standards of Performance":

"(b) Federal standards of performance. (1) As soon as possible, after October 18, 1972, and subject to the provisions of § 1254(j) of this title, the Administrator, after consultation with the Secretary of the department in which the Coast Guard is operating, after giving appropriate consideration to the economic costs involved, and within the limits of available technology, shall promulgate Federal standards of performance for marine sanitation devices (hereafter in this section referred to as `standards') which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters from new vessels and existing vessels, except vessels not equipped with installed toilet facilities. Such standards and standards established under subsection (c)(1)(B) of this section shall be consistent with maritime safety and the marine and navigation laws and regulations and shall be coordinated with the regulations issued under this subsection by the Secretary of the department in which the Coast Guard is operating. The Secretary of the department in which the Coast Guard is operating shall promulgate regulations, which are consistent with standards promulgated under this subsection and subsection (c) of this section and with maritime safety and the marine and navigation laws and regulations governing the design, construction, installation, and operation of any marine sanitation device on board such vessels."

Section 312(b)(1) of the Federal Water Pollution Control Act Amendments of 1972, Pub.L.No.92-500, 86 Stat. 871 (Oct. 18, 1972), codified at 33 U.S.C. § 1322(b)(1) (1976).

(2) Congress then provided for federal preemption of state laws in § 1322(f)(1) as follows:

"(f) Regulation by States or political subdivisions thereof; complete prohibition upon discharge of sewage. (1) After the effective date of the initial standards and regulations promulgated under this section, no State or political subdivision thereof shall
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