The 1899 Refuse Act

(Page 4 of 4)

November/December 1970
 
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C. When a citizen furnishes information to the U.S. Attorney for the purpose of aiding in the prosecution of violators of the Refuse Act for past discharges, the citizen should also urge the U.S. Attorney to seek injunctions under the same Act to preclude future discharges, or other orders to require the dischargers to remove pollutants already discharged. More frequent use of this authority by the Government, together with criminal sanctions, will have lasting pollution control results.

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5. "QUI TAM" SUITS—Where a statute, such as the Refuse Act, provides that part of a fine shall be paid to citizens who furnish sufficient information of a violation to lead to a conviction of the violator, and the Government fails to prosecute within a reasonable period of time, the informer can bring his own suit, in the name of the Government, against the violator to collect his portion of the penalty. This is called a "qui tam" suit. The informer has a financial interest in the fine and therefore can sue to collect it. The Supreme Court has upheld such qui tam suits. Some of these decisions are cited in the Report of the House Committee on Government Operations (House Report 91-917, March 18, 1970) entitled "Our Waters and Wetlands: How the Corps of Engineers can help prevent their Destruction and Pollution."

The United States district courts apparently have exclusive jurisdiction to hear and decide such suits. (Title 28, United States Code, section 1355.) In such a qui tam suit, the citizen must prove that the alleged violator did, in fact, violate the Act.

If the citizen should lose the suit, he probably would have to bear the cost of suing including his lawyer's fees.

The Justice Department recently issued a policy statement to United States Attorneys, concerning the enforcement of the Refuse Act. It instructed them not to use the act as a pollution abatement statute in competition with the Federal Water Pol lution Control Act or with state pollution abatement procedures. It should, in the Department's opinion, only be used to supplement them.

Further interpretation should come from the court decisions in cases already filed under the Refuse Act.

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