The Burns Case

When John M. Burns III left his job in a Wall Street law firm last summer, his future gleamed. At 37, he was the hand-picked executive assistant to a close friend, Whitney North Seymour Jr., the Nixon Administration's U.S. Attorney for the Southern District of New York. In the six months that followed, Lawyer Burns became the Government's most successful prosecutor of water polluters. This should have delighted both Seymour and the White House, which crusades for a cleaner environment. Yet a fortnight ago, Seymour fired Burns.

Why? According to Seymour's official statement, "a number of serious internal office problems and questions of propriety developed as a result of Mr. Burns' conduct." Later, Seymour said he meant that Burns was "overenthusiastic" in his pursuit of polluters. Mild-mannered and bespectacled, Burns has become the center of a controversy that one militant conservationist calls "the Dreyfus case of pollution."

Compounding Penalties. The case involves a General Motors assembly plant in North Tarrytown, N.Y. For years, the plant dumped chemical wastes --spray-paint residues, metals, caustic cleaning agents--directly into the Hudson River. In 1963 the company was ordered by the U.S. Army Corps of Engineers to build a treatment facility tying into a regional sewerage system. Various planning problems delayed groundbreaking until late last year. Meanwhile, the plant kept pouring its effluents into the river.

Many North Tarrytown residents hardly cared: the plant yields about $500,000 in local taxes each year. But Hudson River fishermen and conservationists were angry. So was Burns, who by then had sharpened his major weapon: the long-neglected Refuse Act of 1899, which forbids putting raw wastes into navigable waterways without a permit. Where polluters in the past had been fined up to $2,500 for general violations. Burns discovered that he could legally consider "every time someone opened a valve and discharged wastes into a river as a separate act of pollution." By compounding the penalties, he ran up some staggering sums.

Burns also began filing concurrent --and unprecedented--civil and criminal antipollution proceedings.* His reason: the courts have always moved faster in meting out criminal convictions against polluters than in civil cases. Last fall he won one such case, carrying a fine of $125,000. against a Standard Brands food-processing plant in Peekskill, N.Y. In December, he tried to apply the same strategy against G.M.

Outrageous Behavior. "The office became a little uneasy with me," he claims. Burns was unable to press criminal charges against G.M. One reason: the Justice Department discovered that he had filed his double-barreled suit against Standard Brands after getting required permission from the department's civil and criminal divisions, but without telling either division that he had a green light from the other. "Outrageous behavior," says one Justice lawyer. As a result, Justice approved only civil charges in the G.M. case.

The company--which spent $59 million last year to fight pollution in its U.S. plants--accepted a consent decree from a U.S. district court. It agreed to stop pouring noxious wastes into the Hudson until its treatment facility starts operating later this year. Meantime, the Tarrytown plant will pump those effluents into railroad tank cars, then haul them to another treatment center.

The same day the consent decree was signed, John Burns was fired. Whatever the reason for his dismissal, he is now the conservationists' newest folk hero, and his crusading may have just begun. His present target, paradoxically, is the section of the 1899 Refuse Act that requires polluters to obtain permits to discharge wastes into navigable waterways. Because that rule has been widely ignored, President Nixon last month signed an executive order directing the U.S. Army Corps of Engineers to issue, by July, 40,000 such permits to industries whose effluents meet state and federal water-quality standards. As Burns sees it. the plan opens new loopholes for polluters, including several years of virtual legal immunity while applicants wait for their permits to be processed. Thus he insists that despite its good intentions, "Nixon's permit program knocks the teeth out of water-pollution enforcement throughout the country. In effect, the permits will be veritable licenses to pollute." Last week Burns set out to organize citizens' committees to block major polluters from getting those permits.

*A civil action seeks redress for a violation of some private right; a criminal action seeks punishment for an act prohibited by public law. By combining such actions, Burns achieved both compensation and punishment.

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