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October 8, 1982


The opinion of the court was delivered by: Getzendanner, District Judge:


Defendant Outboard Marine Corporation ("OMC") has moved to dismiss Counts I and II of the Second Amended Complaint of the United States. For the reasons stated below, the motion is denied.*fn1

Count I — The Refuse Act

Count I of the Second Amended Complaint seeks relief under the Refuse Act, 33 U.S.C. § 407.*fn2 Count I includes allegations that from approximately 1959 until 1972 OMC used a PCB-bearing hydraulic fluid in its Waukegan, Illinois facility; that leaks and spills of this fluid were routed into the facility's wastewater collections; that the wastewater collections were discharged into Lake Michigan, the Waukegan Harbor, and the North Ditch, a tributary of Lake Michigan; that as a result, PCBs were and continue to be discharged into Lake Michigan, the Waukegan Harbor and the North Ditch; and that until 1975 OMC had not applied for a permit to discharge PCBs. The Government requests that OMC be ordered to construct a bypass of the North Ditch, to remove and treat allegedly contaminated soil and groundwaters from OMC's property, and to dredge the Waukegan Harbor and the North Ditch.

OMC does not dispute that a violation of the Refuse Act has been alleged; instead, OMC urges that for various reasons the requested relief is not available under the Refuse Act. OMC's two lines of argument are as follows. First, OMC argues that "remedial actions pursuant to the Refuse Act have been precluded by § 4(a), the savings provision of the Clean Water Act." Second, OMC argues that since the Refuse Act does not provide expressly for any injunctive remedies, injunctive relief that courts in the past have decreed to enforce the Refuse Act was judge-made law; such relief therefore should be treated as federal common law, preempted by the 1972 amendments to the Clean Water Act. Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) ("Milwaukee II").

The savings clause on which OMC bases its first argument reads:

  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. [Section 2 of the 1972 amending Act included
  all the substantive amendments.] 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

Water Pollution Control Act Amendments of 1972, Pub.L.No. 92-500, § 4(a), 86 Stat. 896-97. This clause saves certain litigation pending on the effective date of the 1972 amendments (October 18, 1972) and, with leave of court, litigation filed within a year after that date. Several cases have held that pending Refuse Act litigation was intended to be saved by this provision. E.g., Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir. 1975).*fn3 OMC argues by negative inference: since the present action was filed more than one year after the 1972 amendments took effect, the Refuse Act count is not saved by this clause, and it therefore must be dismissed. Language in the second Court of Appeals decision in this case seems to endorse OMC's view:

  The enactment of § 4(a), Pub.L.No. 92-500 § 4(a),
  86 Stat. 896-97, which preserves those prosecutions
  under the Refuse Act of 1899, 33 U.S.C. § 407, that
  were begun before October 18, 1972, provides
  further evidence that Congress considered the
  problem of pre-1972 discharges, and specifically
  the appropriate role in the statutory scheme for
  remedies against polluters.

Illinois v. Outboard Marine Corp., 680 F.2d 473, 478 (7th Cir. 1982) ("OMC II"). OMC's argument cannot, however, survive a close examination of the 1972 amendments.

Another section of the 1972 amendments expressly preserves the Refuse Act as a valid basis for federal authority in the area of water pollution:

  This Act shall not be construed as (1) limiting
  the authority or functions of any officer or
  agency of the United States under any other law
  or regulation not inconsistent with this Act; (2)
  affecting or impairing the authority of the
  Secretary of the Army (A) to maintain navigation
  or (B) under the Act of March 3, 1899

  (30 Stat. 1112); except that any permit issued
  under section 404 of this Act shall be conclusive
  as to the effect on water quality of any
  discharge resulting from any activity subject to
  section 10 of the Act of March 3, 1899, or (3)
  affecting or impairing the provisions of any
  treaty of the United States.

Water Pollution Control Act Amendments of 1972, § 511(a), 33 U.S.C. § 1371(a).*fn4 That this section operates to preserve the Refuse Act was recognized in United States v. Rohm & Haas, 500 F.2d 167, 170 n. 1 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1352, 43 L.Ed.2d 439 (1975), and United States ex rel. Scott v. U.S. Steel Corp., 356 F. Supp. 556, 559 (N.D.Ill. 1973) (McMillen, J.).

The principal effect of the 1972 amendments on the Refuse Act was the replacement of the Refuse Act discharge permit program with the new NPDES permit program. Water Pollution Control Act Amendments of 1972, § 402(a)(4), 33 U.S.C. § 1342(a)(4). Apparently to encourage prompt issuance of the new NPDES permits, the 1972 amendments provided that a pending permit application would immunize a discharger from prosecution — under the new amendments or under the Refuse Act — until December 31, 1974. Act, Section 402(k), 33 U.S.C. § 1342(k). The fear thus was raised that under this provision defendants in prosecutions planned or pending when the amendments took effect could force dismissal of the Government's case merely by applying for an NPDES permit and achieving the immunity conferred by Section 402(k), 33 U.S.C. § 1342(k). It was this fear that prompted inclusion of the Refuse Act in the savings clause of Section 4(a), not any belief that the amendments would repeal or preempt the Refuse Act. Section 4(a) did not save pending Refuse Act litigation from a supposed repeal of the Refuse Act; ...

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