U.S. v. Rohm & Haas Co., 73-1727

• Decision Date: 09 September 1974
• Docket Number: No. 73-1727,73-1727
• Citation: 500 F.2d 167
• Parties: , 4 Envtl. L. Rep. 20,738 UNITED STATES of America, Plaintiff-Appellee. v. ROHM & HAAS COMPANY and Rohm & Haas of Texas, Incorporated, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 167

500 F.2d 167

6 ERC 2016, 4 Envtl. L. Rep. 20,738

UNITED STATES of America, Plaintiff-Appellee. v. ROHM & HAAS COMPANY and Rohm & Haas of Texas, Incorporated,

Defendants-Appellants.

No. 73-1727.

United States Court of Appeals, Fifth Circuit.

Sept. 9, 1974, Rehearing Denied Oct. 30, 1974.

B. D. McKinney, Larry B. Feldcamp, Houston, Tex., for defendants-appellants.

Anthony J. P. Farris, U.S. Atty., Steve Rice, James R. Gough, Asst. U.S. Attys., Houston, Tex., John L. Hills, Atty., Kent Frizzell, Asst. Atty. Gen., Carl Strass, Robert L. Klarquist, Attys., Dept. of Justice, Washington, D.C Jack Shepherd, Chief Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Before TUTTLE, GEWIN and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is a continuous discharge pollution case filed by the Government under the 1899 Refuse Act against Rohm and Haas Company, which has a large chemical manufacturing plant with a single outfall through which its treated waste water goes into the Houston Ship Channel. The District Court entered an injunctive order which set certain limitations upon the discharge by the Company of various pollutants, such as ammonia, chemical oxygen demand, cyanide, chromium, nickel, oil and grease, into the Houston Ship Channel, and totally enjoined the barging of such wastes to sea. 353 F.Supp. 993 (S.D.Tex.1973). The injunction has been stayed pending this appeal which raises difficult issues as to the relationship between the old Refuse Act and the new Water Pollution Control Act.

On appeal the Company argues (1) that the Federal Water Pollution Control Act Amendments of 1972 prevent prosecution of this Refuse Act suit; (2) that the doctrine of primary jurisdiction should be applied and this case remanded to the Environmental Protection Agency for the initial determination of effluent limitations; (3) that the Refuse Act does not confer jurisdiction over waste disposal on the high seas; (4) that the District Court's order is deficient under Federal Rules of Civil Procedure 52(a) and 65(d); and (5) that even if the Federal Water Pollution Control Act Amendments do not bar this action, they provide the proper legal standard to be applied in establishing effluent limitations for the Company's plant.

Except for modifying the injunction so that it will not override subsequent agency action under the new Act, and striking that portion of the injunction that applies to barging wastes to sea, which we find outside the scope of the Refuse Act, we affirm the action of the District Court. We discuss the arguments of appellant seriatim.

I.

Rohm and Haas argues that it cannot be in violation of the Refuse Act, 33 U.S.C.A. 407, because it has applied for a permit to discharge wastes into the Houston Ship Channel, and section 402(k) of the Federal Water Pollution Control Act Amendments, 33 U.S.C.A. 1342(k) (Supp.1971), specifically provides that 'in any case where a permit for discharge has been applied for,' there can be no violation of the Refuse Act until December 31, 1974. It contends that on this basis the suit should have been dismissed. A savings clause, however, provides that the amendments, enacted after this suit was filed, but before it was tried, shall not cause abatement of any suit commenced prior to the enactment of the law. The issue for determination is whether the scope of the savings clause includes this kind of suit. ¹

The savings provision provides:

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 . . . this Act . . ..

86 Stat. 896, note to 33 U.S.C.A. 1251 (Supp.1974).

The savings clause thus preserves two classes of pending actions brought by or against the Administrator or any other officer or employee of the United States: (1) those actions brought by or against them in their official capacities; and (2) those actions brought by or against them in relation to the discharge of their duties under the old FWPCA. Refuse Act cases fall into the first class. Such a reading of the savings clause is consistent with the rule that savings clauses are to be broadly construed. See De La Rama S.S. Co. v. United States, 344 U.S. 386, 389-390, 73 S.Ct. 381, 97 L.Ed. 422 (1953); NLRB v. National Garment Co., 166 F.2d 233, 237 (8th Cir. 1948); Quirk v. United States, 161 F.2d 138, 143 (8th Cir. 1947).

The correctness of the above interpretation of the savings clause is supported by the relevant legislative history. In the course of the debates prior to passage of the 1972 Amendments, several members of Congress expressed concern that section 402(k) might be construed to terminate pending Refuse Act litigation. They were assured by the bill's managers that section 4(a) was intended to and would save all Refuse Act suits then pending in the courts. ²

Rohm and Haas contends that these statements should be disregarded as attempts by certain legislators to subvert the democratic process of legislation by fabricating a legislative history after failing to obtain statutory language consonant with their wishes. The Company points out that every time the savings provision was quoted to demonstrate its applicability to Refuse Act suits, the words 'or in relation to the discharge of his official duties under the Federal Water Pollution Control Act' were deleted. The Company also points out that section 4(a) originated in H.R. 11896, the House version of the bill, and passed both houses after adoption by the House and Senate Conferees without change in language. Rohm and Haas urges that the intent of the House Committee on Public Works, which drafted the savings provision originally, should have special significance in the legislative history. The report accompanying H.R. 11896 by that Committee limited the savings clause to 'actions commenced by or against the Administrator in the carrying out of his responsibilities under the Federal Water Pollution Control Act.' H.R.Rep.No.92-911, 92d Cong., 2d Sess. 141 (1972).

The intent of the original authors is not controlling. We must search for congressional intent at the time of passage. Although the words of the savings clause did not change after conception, their meaning apparently did as the bill moved through the legislative process. The House Committee's narrow reading of the provision, restricting it to FWPCA actions, was abandoned by the Conference Committee. 'Section 4 of the House amendment provides that pending suits, actions, and other proceedings are not to abate by reason of the amendments made by this Act.' Conf.Rep.No.92-1236, 92d Cong., 2d Sess. (1972), 1972 U.S.Code Cong. & Admin.News, p. 3829. The bill's managers quoted only so much of the provision as was relevant to whether the savings clause applied to Refuse Act suits. The language omitted, referring to FWPCA duties, was unnecessary to the resolution of the question posed. In any event, no member of the Conference Committee took the floor to dispute the managers' interpretation of the Committee's intent. Finally, it is significant that the Senate Committee on Public Works reported that only one FWPCA enforcement case had reached the courts in the more than twenty years since that Act was passed in 1948. S.Rep. 92-414, 92d Cong., 1st Sess. (1971), 1972 U.S.Code Cong. & Admin.News, p. 3672. It is unlikely that legislators, aware of the nonexistence of FWPCA actions, would have concerned themselves about saving those actions and inconsistently have permitted abatement of numerous cases under the Refuse Act.

Other federal courts have held that the 1972 Amendments had no effect upon pending litigation under the Refuse Act. United States v. Ira S. Bushey & Sons, 363 F.Supp. 110 (D.Ct.), aff'd mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973); United States v. Consolidation Coal Co., 354 F.Supp. 173 (N.D.W.Va.1973); see United States v. Kennebec Log Driving Co., 356 F.Supp. 344 (D.Me.), vacated and remanded on the merits, 491 F.2d 562 (1st Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974).

Rohm and Haas, reading the savings provision narrowly, would limit it to actions brought by 'the Administrator or other officer or employee of the United States.' The Company perceives this suit as outside the savings clause because it was brought by the United States. The short answer to this contention is that the suit was authorized by the Assistant Attorney General, Lands and Natural Resources Division, and the United States Attorney for the Southern District of Texas, upon the recommendation of the Administrator of the Environmental Protection Agency. The complaint was signed by the Chief Assistant United States Attorney for the Southern District. Each of the above officials is an 'officer or employee of the United States.' Responsibility to enforce the Refuse Act lies with the Department of Justice and the United States attorneys. 33 U.S.C.A. 413; see Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-88 (2d Cir. 1972). Under these circumstances, this suit brought in the name of the United States is within the ambit of the savings clause. ³ Cf. United States v. Burns, 54 F. 351, 355 (C.C.D.W.Va.1893); United States v. Interlake Steel Corp., 297 F.Supp. 912, 914 (N.D.Ill.1969).

II.

Rohm and Haas asserts that the plaintiff should first seek relief from an expert administrative body, the Environmental Protection Agency (EPA), before being allowed to proceed against Rohm and Haas in a judicial proceeding. It would have the Court apply the so-called doctrine of...