October 4, 1972
Page 33705
Mr. GRIFFIN. Mr. President, I take this time for the purpose of establishing a legislative history.
After reviewing the conference report on S. 2770, I became deeply concerned that one provision in the conference agreement might adversely affect a number of pending lawsuits brought under the Refuse Act of 1899.
One such suit is now pending against the Reserve Mining Co. of Silver Bay, Minn., a company which has been dumping 67,000 tons of pollutants daily into Lake Superior.
The provision I refer to is section 402 (k), which provides in part that –
Until December 31, 1974, in any case where a permit 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 violation of (1) section 301, 806, or 402 of the Act, or (2) section 13 of the Act of March 3, 1899 ...
I am also aware of section 4 of the bill, a provision to preserve pending Federal suits.
However, when these provisions are read together, it is not altogether clear what effect is intended with respect to pending Federal court suits against polluters violating the Refuse Act of 1899.
If section 402(k) were read as having retroactive effect, then about 170 Federal suits filed against polluters prior to the date of enactment of the bill, including the Reserve case, could be dismissed.
It is true that the suit against Reserve Mining is also based upon violations of water quality standards and the allegation that such dumping constitutes a public nuisance. However, the strongest part of the case is based on the Refuse Act.
Furthermore, the burden of proving a Refuse Act violation is less onerous than the burden of proving a violation of water quality standards.
During the last 2 years there have been some 300 criminal convictions under section 13 of the Refuse Act and over 120 civil actions most of which resulted in the defendants either stopping the dumping or agreeing to institute pollution control programs. On the other hand, it is my understanding there have been only handful of prosecutions for violation of water quality standards since the Federal Water Pollution Control Act was enacted.
In view of this – a fact recognized by the conferees – it is inconceivable that the Senate would want to emasculate the best available enforcement device now available – the Refuse Act – and legislatively dismiss suits pending under it.
Accordingly, Mr. President, it is essential that any possible ambiguity be cleared up so that the legislative history will leave no doubt about the intent of the conferees and the Members of this body.
In an effort to clarify this point I wrote to the distinguished chairman of the Subcommittee on Air and Water Pollution (Mr. MUSKIE). I ask unanimous consent that a copy thereof be printed in the RECORD following my statement. In addition, I directed a letter to the Environmental Protection Agency requesting an interpretation, and a reply was received from the General Counsel of EPA, John Quarles, Jr., and he said in part:
It is my firm opinion that any motion to dismiss an action because of the possible ambiguity contained in section 402(k) will be defeated.
I ask that these two letters also be printed in the RECORD.
There being no objection, the letters were ordered to be printed in the RECORD, as follows:
OCTOBER 4, 1972.
Hon. EDMUND S. MUSKIE,
Chairman, Subcommittee on Air and Pollution,
Public Works Committee,
New Senate Office Building,
Washington, D.C.
DEAR Mr. CHAIRMAN: After reviewing the conference report on S. 2770, I am deeply concerned about a possible ambiguity in section 402(k) of the bill. That action provides in part that "until December 31, 1974, in any case where a permit 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 violation of (1) sects 301, 306 or 402 of the Act, Or (2) section 13 of the Act of March 3, 1899 . . .".
This provision was not in the Senate bill and is a modified version of a provision in the House- passed bill.
Although the bill contains a savings provision for existing suits in section 4(a), some uncertainty has arisen about the possible effect of section 402(k) on pending Federal suits under the Federal Water Pollution Control Act and the Refuse Act of 1899, such as the suit against the Reserve Mining Company of Silver Bay, Minnesota.
Specifically, I want to know if the conferees intended to preserve Federal suits alleging violations of the Refuse Act or the Federal Water Pollution Control Act which were filed prior to the date of enactment of S. 2770?
It is difficult for me to believe that the conferees intended section 402 (k) to adversely affect pending litigation.
However, it is essential that this ambiguity be cleared up, and that the legislative history leaves no doubt on this issue when the conference report is taken up in the Senate.
With best wishes and my kind regards, I am
Sincerely,
ROBERT P. GRIFFIN, U.S. Senator.
U.S. SENATE,
Washington, D.C.,
September 29, 1972.
Mr. WILLIAM D. RUCKELSHAUS,
Administrator, Environmental Protection Agency,
Washington, D.C.
DEAR BILL: As you know, I have pressed vigorously for an end to the pollution of Lake Superior by the Reserve Mining Company of Silver Bay, Minnesota.
The response of the Environmental Protection Agency and the Justice Department in bringing suit against the company has been gratifying. However, I am distressed that a possible roadblock to this pending case may emerge from legislation nearing final passage in the Congress.
On Wednesday, September 28, House-Senate conferees filed a conference report on S. 2770, the Federal Water Pollution Control Act Amendments of 1972. Included in the bill agreed to in conference is the following provision:
"Sec. 402. (k) ... Until December 31, 1974, in any case where a permit for 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 violation of (1) section 301, 306, or 402 of this Act, or (2) section 13 of the Act of March 3, 1899, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application. For the 180-day period beginning on the date of enactment of the Federal Water Pollution Control Act Amendments of 1972, in the case of any point source discharging any pollutant or combination of pollutants immediately prior to such date of enactment which source is not subject to section 13 of the Act of March 3, 1899, the discharge by such source shall not be a violation of this Act if such a source applies for a permit for discharge pursuant to this section within such 180-day period."
Unfortunately, it is not clear as to the effect of this provision on Refuse Act permit applications pending on the date of enactment of this Act. This uncertainty is compounded by the language in the joint explanatory statement of the conferees which refers to "any case where a permit for discharge has been applied for but final administrative disposition has not been made." (Emphasis added)
In view of the fact that the Federal Government's action against Reserve Mining is predicated, in part, on a violation of the Refuse Act of 1899, I would appreciate it if you could advise me as to what effect section 402(k), or any other section, of S. 2770 will have on the pending court action against Reserve Mining.
Since the Conference Report on S. 2770 is likely to be brought up for consideration in the Senate Wednesday or Thursday of next week. I hope you will be able to provide a response before that time.
With best wishes and warm personal regards.
Sincerely,
ROBERT P. GRIFFIN, U.S. Senator.
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C.,
October 2, 1972.
Hon. ROBERT P. GRIFFIN,
U.S. Senate, Washington, D.C.
DEAR SENATOR GRIFFIN: This is in response to your letter of September 29, 1972, to Mr. Ruckelshaus wherein you voice concern about the apparent ambiguity in certain provisions of S. 2770 relating to the litigation of pending actions.
Section 402(k), as you note, provides that "until December 31, 1974, in any case where a permit 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 violation of (1) section 301, 306, or 402 of the Act, or (2) section 13 of the Act of March 3, 1899. . . (Emphasis supplied)
Your concern is that the word "case" can be construed to render moot all pending litigation. It is my opinion that it is most unlikely that the language contemplates such a result, or that a court would so interpret the statute. For it is reasonable to conclude that the courts will not interpret any legislation to deprive them of jurisdiction of pending litigation in the absence of clear and explicit language. There is no such clear and explicit language to this effect in the pending bill.
In addition, the Savings Provision of the bill provides that "No suit, action or other proceeding lawfully commenced . . shall abate by reason of the taking effect of the amendment made by section 2 of this Act". This is a clear reservation of jurisdiction in the courts over pending litigation. Furthermore it should be noted that the Savings Provision in referring to pending litigation uses the words "suit" and "action". It does not use the word "case". Hence, it is certainly arguable, at least, that Congress, in using the word "case", in its context in Section 402(k), was not referring to legal suits or actions but to situations where applications are filed pursuant to the Act.
In sum, it is my firm opinion that any motion to dismiss an action because of the possible ambiguity contained in Section 402(k) will be defeated. In any event, you may rest assured that this Agency will expect the Department of Justice to contest vigorously any such motion, should it be made.
Sincerely,
JOHN R. QUARLES, Jr.,
Assistant Administrator for Enforcement and General Counsel.
Mr. GRIFFIN. I wonder if I might address my question to the distinguished manager of the bill on this point.
Mr. MUSKIE. Yes, indeed. I appreciate having this point raised by the Senator from Michigan. I wish to put my answer in this form.
Section 4(a) of the conference report is an identical provision to that which appeared in the House bill.
Section 402 (k) of the conference report is similar, although not identical, to section 402(1) of the House bill.
No question has even been raised up to this point as to the relationship of these two sections. The gentleman's question is the first indication that anyone has ever considered that there was an ambiguity in the two provisions.
Section 4 provides and I quote the relevant words pertaining to the Refuse Act:
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 . . . shall abate by reason of the taking effect of the amendment made by section 2 of this Act.
Without any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress.
I hope and trust that nothing said on this floor or elsewhere would lead anyone to believe that section 4 is anything but totally clear as to its meaning and intent.
Mr. GRIFFIN. I thank the manager of the bill. Certainly that does clarify the meaning as to the intent of the conferees, and it would clearly indicate that the suit now pending against the Reserve Mining Co. under the Refuse Act would not be affected by this bill.
Mr. MUSKIE. That is my belief.
Mr. GRIFFIN. I thank the Senator.