How many members of the EPA Alumni Association remember the Rivers and Harbors Act of 1899? None of us is that old, I guess, but what about the part of it – called the “Refuse Act” -- that made a bit of history when it was dredged up (pun intended ) in 1972?
There was an unusual delivery to the loading dock at the U S Post Office and Courthouse in Pittsburgh one day in 1971. It was about 500 mason jars full of water, some almost clear, some full of muck and sediment.
With each jar came a full chemical description of its contents, and a map showing where it had been collected along the Ohio and Monongahela Rivers.
More precisely, the map showed from which outfalls of the US Steel Corporation, Jones and Laughlin Steel, Wheeling Pittsburgh Steel and the Pennsylvania Industrial Chemical Corp. (PICCO, later Hercules,) it had been collected.
All of this was addressed to US Attorney Dick Thornburgh and accompanied by a demand that the Department of Justice take action under the Rivers and Harbors act of 1899.
The samples had been gathered by two Penn State McKeesport Campus faculty members, and tested at the Allegheny County Testing Lab. Maps, chains of custody and testing methods were included.
The collecting expeditions were risky; the canoe was small and leaky, the barge traffic was heavy and not at all used to seeing recreation boats on a polluted industrial river, and the outfalls were running at full throttle, (and some were about 160 degrees F.)
They really did have to use the proverbial “ten-foot pole” at times.
The two professors, David Nixon and John Zavodni, were not merely interested in the bounty provision of the law (a common feature of legislation in the late 19th century,) but they wanted to make a point: the rivers were a dump.
They were also pretty sure the Nixon Administration would not be keen to use an obscure old Corps of Engineers law to beat up American steel and chemical businesses.
But if Justice declined to act, the two intrepid canoers were positioned to make a political statement as well.
Some history: Congress passed annual Rivers and Harbors Acts in the late 19th century, to make appropriations to the Corps of Engineers, to regulate construction in navigable waters, and to protect navigable channels.
In 1899, for reasons not deducible from the legislative history, they added language that came to be called the “Refuse Act.” It simply prohibited ANY deposit of ANY substance (“refuse”) in the water, unless the Corps issued a permit. Navigability was irrelevant.
The intrepid pollution hunters were surprised by Thornburgh, who said publicly he would give their allegations serious consideration.
Then he told me (the in-house tree-hugger,) to make whatever cases I could.
We ultimately developed 94 criminal counts against the four companies, most of them against the three large steel companies, but also four counts against (United States vs. Pennsylvania Industrial Chemical Corp.)
We selected the most toxic samples, or those with high concentrations of things like salt.
On the permit element, it was easy to establish that none of the defendants had, or had ever asked for, permits to pour pollutants, (“refuse”) into the rivers.
Nobody at the Corps of Engineers had heard of the law, let alone a permit program to enforce it.
The law’s legislative history, of course, was about protecting navigable channels from dumpers, and probably never had anything to do with what was in those Mason jars.
But its clear language was that nothing of any sort could be deposited into navigable waters.
The steel companies used their heavy-duty corporate lawyers, with a predictable avalanche of motions, briefs and requests for more time.
The Pennsylvania Industrial Chemical Corp, however, retained an experienced criminal attorney, and his first move was to say, “Find me a jury, and they will laugh this out of court.”
There was in fact some laughter in court, as when the defense tried to show that some of the toxins were also found in ordinary household stuff, like Pepto Bismol, which could have come from homes above the chemical plant.
Thornburgh asked the Judge for a recess so that those poor afflicted folks could be notified that they were overdosing.
The Defense closed with an argument that World War II could not have been won with this law on the books, but Thornburgh (and the Judge) reminded the jury that the law was in fact on the books, and so the prosecution and jury had a duty to enforce it.
A Western Pennsylvania jury might have been sympathetic to local industries, but after an hour of deliberation, they were unanimously against pollution as well.
Opinion on the old Pittsburgh adage, “Smoke is Progress” was turning.
The Judge pronounced the maximum fine, allocated the bounty awards to the canoeists, and we went to the Third Circuit [Federal Court].
The other three defendants moved successfully to delay trials until the Circuit spoke.
Was the prosecution fair?
Defendants could not have gotten any permit from a non-existent program, and they were conducting business as they had for a century. But they were laying waste to the rivers and land.
Key to Thornburgh was the importance of establishing the very bedrock principle of modern water law: You don’t have any RIGHT to put ANYTHING in the water.
The rest of us, the body politic, if you will, must give permission and can impose conditions.
The Circuit Court reversed in part, but the whole issue was mooted by the passage in mid-October of 1972 of the Federal Water Pollution Control Act 0f 1972.
By then the Corps of Engineers had hastily constructed a permit program but when I joined the Legal Branch of the EPA’s Region 3 office in Philadelphia in 1973, I encountered dozens of boxes of permit applications that the Corps had delivered to EPA.
I didn’t inquire, but I expect the Corps was only too happy to say goodbye to the Permit Program the Never Was.
Eventually these were converted into NPDES permit applications.
After that came fifty years of important legal, scientific and administrative history, and lots of hard work at EPA, in the states and by the private sector, with results unimaginable in 1899 -- or even 1972.
(Photos: Gov. Dick Thornburgh and James M. Seif.)
Resource Links:
-- Attorney General Thornburgh’s Address to the Oceans ‘88 Conference on October 31, 1988
-- Gov. Thornburgh On Leadership: People Living In The Chesapeake Bay States Should Not Have To Wait Another 30-Plus Years For Clean Water
NewsClips:
-- Oct. 15: A Celebration Of The Life And Legacy Of Dick Thornburgh, University Of Pittsburgh
-- Post-Gazette: Thornburgh Memorial Service Set For Oct. 16James M. Seif began his career as an Assistant US Attorney in Pittsburgh, moved to EPA Region 3 in the early Seventies; and was later Regional Administrator (1985-89.) In 1995 he became Secretary of Environmental Protection in Pennsylvania.
Dick Thornburgh was US Attorney in Pittsburgh, and later a two-term Governor of Pennsylvania and Attorney General of the United States. He died in 2020. For a further account of his Refuse Act prosecution, see his autobiography, “Where The Evidence Leads.”
[Posted: October 10, 2022] PA Environment Digest
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