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United States v. Outboard Marine Corp.

ELR Citation: 13 ELR 20035
Nos. No. 78 C 1004, 549 F. Supp. 1036/18 ERC 1080/(N.D. Ill., 10/08/1982) Ruling on Rivers & Harbors Act, FWPCA liability

In an action to order cleanup of PCB-contaminated soil, groundwater, and river sediments, the court rules that the 1972 Amendments to the Federal Water Pollution Control Act (FWPCA) do not preclude injunctive relief under the Refuse Act and that injunctive relief is also authorized under §309(b) of the FWPCA. The court rules that while §4(a) of the FWPCA could be interpreted to preclude remedial actions under the Refuse Act, §511 of the FWPCA specifically preserves such actions. It points out that the main effect of the 1972 Amendments on the Refuse Act was to replace its permit program with the national pollutant discharge elimination system program, but that other federal authority under the Act was not limited. The court rejects defendants' argument that injunctive relief under the Refuse Act is a form of federal common law and therefore preempted by the FWPCA. Although nothing in the Rivers and Harbors Act, which includes the Refuse Act, provides specifically for injunctive relief, the Act has been interpreted to infer authority to seek injunctive remedies.

The court also rejects defendants' argument that §§115 and 311 of the FWPCA and the Comprehensive Environmental Response, Compensation, and Liability Act preclude the government from seeking a mandatory cleanup injunction under §309(b) of the FWPCA. Both the removal of contaminated soil to prevent future PCB discharges and harbor dredging to remedy past discharges may be ordered under §309(b).

Counsel are listed at 13 ELR 20033.