multiplicity and still maintain the protection of the private citizen in the event of any lapse of due diligence by the Administrator or whatever agency is prosecuting the action.

Thus, if action is filed by the Administrator in Federal court, it would seem to me that there would be ample reason to stay the private action and consolidate it with the Administrator's action for purposes of avoiding multiplicity.

And if action is filed by a State agency in a State court or by the Administrator looking for administrative order, there would seem to be merit at least to authorize the district court sitting in the private action to stay further proceedings pending the outcome of the action of the Government agency.

I would like to suggest that the proposed paragraphs (A) and (B) stances, but, if not, Senator, I think there is ample basis for indicating a legislative intent to encourage the courts to use their powers to issue miscellaneous orders including stay orders for avoidance of multiplicity.

The final point on the details of the citizen suit provision that arises is the question of multiplicity when there is no Government action. That is, there are actions by a number of private citizens perhaps in a number of districts which could arise under this legislation, particularly under S. 523.

One possible solution for the avoidance of multiplicity would be to authorize private suits only in those locations where at least a stationary source that is involved in a violation is located. This would naturally bring all actions into a single judicial district insofar as the suits rely on the same factual allegations as related to the alleged violation by the stationary source.

If such a venue requirement were adopted, the courts would then clearly be authorized under rule 42 of the Federal Rules of Civil Procedure to consolidate all of the actions based on the same facts of law in a single lawsuit bringing about, hopefully, consistency of results. Otherwise, I am afraid that even for the same violation, depending on the violation of a water quality standard of how many districts it may go through before it is abated, you could have actions arising in different districts, indeed in different circuits.

If this is the case, then, the slim reed of reliance must be placed on the Multi-District Litigation Act, 28 U.S.C. 1407, which permits consolidation, but only for pretrial. The statute directs the transferee court to send the case back to the originating court after pretrial. After remand, and we reach the same problem of conceivable multiplicity which could produce not only a hardship on the defendant but inconsistency of results which really for purposes of effectuation of the statute is a more important point.

I would like to suggest that the proposed paragraphs (A) and (B) of the proposed section 10(k) (6) of Senate Bill 1014 seem to illustrate the type of problem confronted in endeavoring to avoid multiplicity while authorizing citizen suits.

The proposal would bind all parties who might have initiated private actions to the outcome of a prior suit in which notice has been given in general circulation newspapers where the court sits and in the Federal Register.

Although the problem may be more theoretical than practical, it is conceivable that parties remote from the location of the courts would be bound if prescribed notice is given.

I would seriously question, although I am sympathetic with the objectives of the provision, whether this would withstand assault under an argument procedural due process. I think it is more important to note that this demonstrates some of the problems that are confronted unless the multiplicity question is really met at its root.

I think a far more preferable solution, even if the committee determines that private actions against the alleged polluters are necessary, would be to locate the citizen suit as nearly as possible in one judicial district. This certainly would solve the venue problem. It is questionable how far the doctrine of collateral estoppel might apply but it seems to me this direct type of approach might be preferable to the attempt in the Cooper bill to bind conceivably remote parties by publication the Post Dispatch and Federal Register.

There is a section in our statement, Senator, related to class actions. Neither bill provides for class actions but the recommendation crops up time and again that class actions be authorized in this as well as in a variety of other fields.

I don't intend to read this, Senator, but I would like to point out, as has been done many times by many talking on this issue, that class actions are the last answer in the world toward any expeditious, uncomplicated relief from a problem of water pollution. The problem of determining the class is costly and timeconsuming.. The problem of notice is costly and timeconsuming, and the ultimate solution of the case can persist for a number of years.

I would refer you to testimony of Judge Albert Murrah, who is chief judge of the 10th circuit and chairman of the Federal Panel on Multidistrict Litigation, before the Senate Judiciary Committee last year on another matter which also related to class actions. Judge Murrah says not in many complex multiparty class litigations cost of the first notice alone can run upward of $100,000 and Judge Murrah asks fairly, I think, who is going to "foot the bill."

I would simply commend to the committee the material in my statement relative to the class action question.

Finally, this is not in our statement, Senator, but in thinking about this legislation, one thing has occurred to me and that, of course, is the 1899 act. I need not go into the judicial history of that statute. I am sure the committee is fully aware of it. It has a competent staff to outline for the committee; the Republic Steel case, Standard Oil case, and the clear applicability of the 1899 act to water pollution. The question of whether or not private parties can bring so-called quitam actions is open now.

It seems to me that this comes back really to the point of the centralization of governmental authority to the question of clean water. If indeed it is to be performed and undertaken by the EPA Administrator, then so be it. I suggest to you that there may be little or no appropriate role for the Corps of Engineers to play in this overall antiwater pollution program.

I have no concrete proposal. I think it is something that the committee may want to consider in its deliberations on this bill.

I appreciate the apportunity to appear today and will be glad to answer any questions that I can.

Senator EAGLETON. Thank you very much, Mr. Rill, for a very thorough and lawery-like analysis of the citizen action provisions as encompassed in S. 523 and S. 1014, as well as related matters.

At this time, your entire statement will be printed in the record verbatim.

(The prepared statement referred to follows:)

PREPARED STATEMENT OF JAMES F. RILL

CITIZEN SUIT PROVISIONS OF S. 532 AND S. 1014

My name is James F. Rill. I am a partner in the law firm of Collier, Shannon, Rill and Edwards and am appearing today at the invitation of Chairman Muskie to discuss the private suit provisions of pending legislation which would amend the Federal Water Pollution Control Act. Accordingly, the views I express today are my own.

I.

Before addressing myself to the particular citizen suit provisions of the bills under consideration, it may be helpful to furnish a broad overview of the administrative regulatory program embodied in both bills and the appropriateness of authorizing citizen suits at all in such a context.

The basic regulatory format of both S. 523 and S. 1014 reflect a conscious purpose to create a pervasive Federal-State administrative program to protect and enhance the quality of the nation's waters. Thus, S. 523 would amend section 10 of the underlying statute to authorize the Administrator of the Environmental Protection Agency to promulgate water quality criteria and to issue information concerning recommended pollution control techniques. In the same vein, the balance of the proposed amended section would provide for approval by the Administrator of State developed water quality standards and plans, including schedules of compliance and effluent requirements and an adequate means of State enforcement. In the event of failure by any State to take the steps specified in the legislation leading to the approval of adequate plans and standards, the Administrator is directed to propose and issue water quality standards and a plan for that State.

S. 1014, in somewhat different structure, embraces essentially the same FederalState administrative agency approach to water pollution control. The Administrator would be directed to establish guidelines for State programs; provision would be made for the Administrator to promulgate water quality standards, including effluent limitations, in the event of inaction or inadequate action on the part of any State.

Although differing in detail, both bills adopt a Federal enforcement program which is consistent with their general regulatory framework. They both vest broad authority in the Administrator of EPA to initiate administrative proceedings for the issuance of what are, in effect, cease and desist orders. In addition, they both appear to provide the Administrator with the option of initiating civil actions in the District Courts for temporary or permanent interlocutory injunctive relief.

Taken as a whole, both bills seem to proceed from the premise that expeditious, equitable and technologically feasible progress can best be made towards water pollution control through the administrative agency process. This concept is fully consistent with long-established legal and policy principles in the field of government regulation of complex economic and technological issues.

I suggest that to superimpose unstructured private suits on this system of administrative control could well operate to the detriment of the system and needlessly burden court calendars as well.

Congress has frequently preferred administrative to judicial regulation where the subject matter to be regulated is more susceptible to agency control. Considerations which have led to agency regulation include: (1) The ability of administrative agencies to focus scientific, technological, economic and other specialized expertise on complex subjects for which judicial fora are ill-suited; (2) The direct interrelationship between rule-making and adjudication which militates in favor of a combination of functions to provide a coherent enforcement effort in the interest of consistent public policy; (3) Centralization of adjudication in a single agency which, subject to judicial review, can provide uni

formity of result and rationale in the litigation of similar issues; and (4) The agences' capacities to develop a full record in adjudication, bringing to bear their expertise and facilitating judicial review of their final actions.

(1) There seems to be no disagreement but that the area of environmental control is extraordinarily complex. It is not susceptible to simplistic “all or nothing" solutions, see The Economics of Environmental Quality, Fortune Magazine, 122 (Feb. 1970), but requires a balance between the economic demands of an industrial society and the benefits of environmental improvement and a further balancing between desirable control programs and scientific and technological feasibility.

The optimum administration and enforcement of such a program must call upon skilled legal, medical, engineering and other professional expertise. The present law and, for the most part, S. 523 and S. 1014 recognize this fact, as has already been noted.

Neither private litigants nor the courts possess the expertise necessary for the resolution of the complicated issues which would be involved in determining a possible violation of water quality standards and plans. The intrusion of private litigation into the water quality control field would disrupt the administrative regulatory pattern. Even if such litigation were to involve technological feasibility, we question the institutional ability of the courts in a de novo proceeding to reach a reasoned decision thereon.

Considerations of the specialized expertise necessary to the regulation of highly technical matters have most often led Congress to delegate authority to administrative agencies in lieu of reliance on the courts. According to Professor Davis, "... much of the substance of administrative adjudication is, or at the crucial time has been thought to be, outside the area of judicial competence." Davis, Administrative Law, §1.05, 38 (1958). In fact, it has been held that the courts cannot constitutionally participate in determinations which are fundamentally administrative, Federal Radio Comm. v. General Electric Co., 281 U.S. 464 (1930). These principles apply with particular force to water pollution control. In an area much less commanding of expertise than environmental control, the U.S. Department of Justice has very recently outlined the basis for exclusion of original jurisdiction of the judiciary in matters requiring administrative discretion. Arguing in the Supreme Court the lack of private parties' standing to intervene in the negotiation of antitrust consent settlements, the government's brief, signed by its Solicitor General, points out:

* it is not the court's function to weight de novo the Attorney General's balancing of the considerations leading to settlement. This is true whether the impact of the case is large or small. Such a judicial inquiry would in effect require a trial on the entire congeries of factors bearing on settlement-including the strengths and weaknesses of the government's theory, the difficulties of proof, the time that might be required for discovery and trial, the possible relief that might be obtained in the light of the risks of litigation, the resources to be committed in the light of alternative needs, and the public consequences of delay in correctiong the competitive injury alleged. The hearing would be more complex than a trial on the merits, and it would apparently involve a trial of the Attorney General's good faith and good judgment. This kind of intrusion into prosecutional discretion would be inconsistent with both constitutional nature of the judicial power and traditional concepts of the adversary process. [City of New York v. United States, U.S. Supreme Court, Nos. 1121, 1122, Government's Motion to Affirm, 12, 13, (Feb. 25, 1970)]. The Supreme Court, per curiam, granted the government's motion to affirm. 90 S. Ct. 1105 (1970).

In particular as to agency expertise, S. 523 would direct the Administrator to weigh the reasonableness of any time of compliance, the gravity of the offense and the good faith of the respondent in issuing any order under proposed section 11(b) (3) of the statute. Yet the citizen suit provisions of proposed section 11(i) do not commend these judgmental standards to the attention of the District Courts. While the private suit provisions of S. 1014, proposed section 10(k) of the Act do require the courts to consider practicability, gravity and good faith. I seriously question whether the courts are as technologically competent to enter on such an undertaking as the administrative agency.

(2) The quasi-legislative rule-making function and the quasi-judicial adjudicatory function would be fully interwoven under the Water Pollution Control

Act if amended as proposed in either S. 425 or S. 1014. The same specialized agency or agencies which would establish water quality standards and plans would undertake to enforce these standards in administrative proceedings. The information obtained by the agency in the exercise of its rule-making function can only enhance the likelihood of consistent, rational adjudication.

It is readily apparent that under the basic framework of S. 523 and S. 1014 adjudicative enforcement would constitute the logical and necessary outgrowth of generally-applicable policy formulation. Professor Davis suggests that this factor is paramount in the establishment of administrative enforcement priority: Perhaps the most important reason why, as a matter of historical fact, we have not sent all controversies to the courts, is that adjudication of issues naturally grows directly out of the administrative handling of cases . . . This is so, even if the issues when isolated from the administrative work are entirely appropriate for judicial determination. (Davis, supra, § 1.05, 37, 38.) Such developments would only frustrate expeditious progress toward uniform adherence to rationally established programs and standards.

(3) A precept of administrative law closely related to consistency of enforcement-consistency of result-further dictates the grant of exclusive enforcement jurisdiction to the Administrator or to the States if uniform results are to be achieved under State enforcement programs. As contemplated in the statute and in the amendments proposed by the proposed bills, agency expertise would be brought into play in the design and implementation of standards, plans and prohibitions. From this base, a coordinated enforcement would focus adjudication on issues closely tailored to the essential policy of the statute.

In this context, delegation of the decision-making function to the courts, in the first instance, rather than to the agency is entirely inappropriate. Subject to judicial review, the agency can through adjudication, as well as rule-making, draw clear legal and policy lines which are not only necessary to a determination of the issues in the case before it but are essential to the foundation of a body of precedents from which those subject to the act can obtain guidance for future conduct. The standards which have been developed through administrative adjudication in many areas constitute an independent framework of legal criteria which could not have been achieved through the judicial process.

An area so technologically complex and so reliant on considerations of public policy as environmental control requires that the process of case determination be designed to secure uniformity of result in similar fact situations.

The District Courts are ill-suited to the accomplishment of this objective. Even if judges were, ex officio, to possess the expertise necessary to a determination of cases de novo in the pollution field, it would be illogical to expect that any uniform foundation would be produced from among the trial decisions of the more than 90 Federal District Courts in the United States. The more probable outcome would be a wide conflict of rationale and result, the resolution of which through the appeal and certiorari process would significantly delay realization of a consistent enforcement and compliance effort in an area of vital national interest. Problems of this nature are particularly likely to arise in the context of legislation which either does not provide the courts with adequate standards, such as S. 523, or calls upon the courts to reach determinations which they may be ill-suited to make, as may be the case with S. 1014.

The principle favoring exclusive agency original jurisdiction applied by the Supreme Court to rate-making in a germinal 1907 decision exerts even more force here:

For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that, unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. Indeed, the recognition of such a right is wholly inconsistent with the administrative power conferred upon the Commission, and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed. . . In other words, the established schedule might be found reasonable by the Commission in the first instance and unreasonable by a court acting originally, and thus a conflict would arise which would render the enforcement of the act impossible. [Texas and Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, at 440, 441 (1907)].