United States v. Consolidation Coal Company

• Decision Date: 11 January 1973
• Docket Number: Civ. A. No. 72-31-F.
• Citation: 354 F. Supp. 173
• Court: U.S. District Court — Northern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. CONSOLIDATION COAL COMPANY, a corporation, Defendant.

354 F. Supp. 173

UNITED STATES of America, Plaintiff, v. CONSOLIDATION COAL COMPANY, a corporation, Defendant.

Civ. A. No. 72-31-F.

United States District Court, N. D. West Virginia, Fairmont Division.

January 11, 1973.

Paul C. Camilletti, U. S. Atty., James F. Companion, Asst. U. S. Atty., Wheeling, W. Va., for plaintiff.

Furbee, Amos, Webb & Critchfield, Fairmont, W. Va., and Rose, Schmidt & Dixon, Pittsburgh, Pa., for defendant.

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 wares . . .."

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 . . . 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.

III

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:

". . . 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

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