Memorandum — United States Department of Energy v. Ohio

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No. hie M

omeamcmmmrees 8 199)

OFFICE OF THE Cicas

Ju the Supreme Court of the United States

OCTOBER TERM, 1990

STATE OF OHIO, ET AL., CROSS-PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF ENERGY

ON CROSS-PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MEMORANDUM FOR THE DEPARTMENT OF ENERGY

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

BEST AVAILABLE COPY™

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QUESTIONS PRESENTED

1. Whether the federal facilities provision of the

Resource Conservation and Recovery Act (RCRA),

$ 6001, 42 U.S.C. 6961, waives the sovereign immu-

nity of the United States from assessment of. civil

penalties under state hazardous waste laws.

2. Whether the citizen suit provision of the Clean

Water Act (CWA), £505, 33 U.S.C. 1365, waives

the sovereign immunity of the United States from

assessment of federal civil penalties for violations of

the Clean Water Act.

(1)

ee

TABLE OF AUTHORITIES

Cases : Page

EPA y. Cal/fernia, 126 U.S. 200 (1976) 3

Flovida Dep't of Buetl. Regulation vy. Silvers Corp.,

606 F. Supp. 159 (M.D. Fla. 1985) , 8a

Hancock v. Train, 426 USS. 167 (1976) q

Maine ¥. Department of the Navy, 702 F. Supp.

22 (1) Me, 1988), appeal pending, No. &6-

O211P (ist Cir ei 3

MeClelian EBeological Seepage Situation (MESS)

Vv. Weinberger, Goo F. Supp. 601 (h.D. Cal.

1986) .... : 5

Mitzelfelt Vv. Department of Air Foree, 905 bd

1293 (10th Cir, P9990) 2,4,5

Sierra Club Vv. Lujan, No. 90-1183 (10th Cir. Apr.

30, 1991) 5

United States Vv. Washington, 872 F.2d 871 (th

Cir, 1989) . a a 2,3,4,5

Statutes:

Clean Water Act £505, 33 U.S.C. 1365 2,5

resource Conservation and Recovery Act, 42

U.S.C. 6901 et seq.:

£ G001, 12 U.S.C. 6961 1,2

§ 7002, 12 U.S.C, 6972 1,2

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ju the Supreme Court of the United States

OcroBer TERM, 1990

No. 90-1517

STATE OF O10, ET AL., CROSS-PETITION ERS

v.

UNITED STATES DEPARTMENT OF ENEKGY

ON CROSS-PETITION FOR A WRIT OF CERTIORALL TO

THE UNITED STATES COURT OF AVPILALS

FOR THE SIXTH CIRCUIT

MEMORANDUM FOR THE DEPARTMENT OF ENERGY

1. The cross-petition presents two questions: first,

whether the RCRA federal facilities provision, RCRA

£ 6001, 42 U.S.C. 6961,’ waives federal sovereign im-

munity from assessment of civil penalties and, segond,

'The State’s first question presented mistakenly refers to

the KORA citizen suit provision, RCRA § 7002, 42 U.S.C.

6072, rather than the RCKA federal facil ties provision,

RCRA § 6001, 42 U.S.C. 6961. As printed in the cross-

petition, that question concerns whether “Section 7002 of

[RORAI!, 12 U.S.C. 6972, waives the sovereign immunity of

the United States from assessment of state civil penalties for

violation of state hazardous waste laws.” Cross-Pet. i. The

State would not have had to file a ecross-petition to bring

before this Court the question whether RCRA §& 7002—the

RCRA citizen suit provision-—waives federal sovereign im-

munity from federal civil penalties, because that question is

already before the Court on our petition for certiorari. See

‘})

2

whether the CWA citizen suit provision, CWA $ 505,

33 U.S.C. 1365, waives federal sovereign immunity

from assessment of civil penalties.

2. Further review is not warranted with respect

to the first question presented in the State’s cross-

petition. Although the court of appeals was divided

on other issues in this case, the court was unanimous

(see Pet. App. 9a-12a, 17a n.1) in agreeing with both

other courts of appeals that have ruled on the issue

that the RCRA federal facilities provision does not

subject the federal government or its agencies to civil

penalties. See United States v. Washington, 872 F.2d

874 (9th Cir. 1989); Mitzelfelt v. Department of Air

Force, 903 F.2d 1293 (10th Cir. 1990). Moreover,

as we note in our petition (90-1341 Pet. 25), all but

two district courts that have reached the issue have

also disagreed with the State’s position. The only two

exceptions are the district court in this case, whose

holding on the issue was reversed by the Sixth Cir-

cuit, and one other district court whose decision is

now pending on appeal in the First Circuit See

Pet. i. Moreover, the State has not previously in this litiva-

tion asserted that Section 7002 waives federal sovereign im-

munity from state civil penalties, and we do not see how

Section 7002 could be read to do so. Finally, the State does

not discuss Section 7002 in the body of its cross-petition, but

instead discusses RCRA § 6001--the RCRA federal] facilities

provision——(see Cross-Pet. 1, 15, 16, 14) and cites (see

Cross-Pet. 3, 7) the portion of our petition (at 25) in which

cases construing the RCRA federal facilities provision are

discussed.

*The State asserts (Cross-Pet. 2 n.%) that one district

court decision cited in our petition, Florda Dep't of Envtl.

Regulation We Silver Corp.., Oe, FF, “upp boo (M.1). hla.

1985), “does not address civil penalties at all.” In Silver,

the State of Florida sued the United States Navy for “dam-

3

Maine vy. Department of the Navy, 702 F. Supp. 322

(D. Me. 1988), appeal pending, No, 86-0211P (1st

Cir.).

The arguments advanced by the State in its cross-

petition have been specifically rejected by the courts

of appeals. For example, the State contends that the

RCRA federal facilities provision was drafted to re-

spond to this Court’s decisions in Hancock v. Train,

426 U.S. 167 (1976), and EPA vy. California, 426

U.S. 200 (1976). Those cases held that the federal

facilities provisions of the Clean Air Act and Clean

Water Act did not waive federal] sovereign immunity

from state permit requirements. As the Ninth Cir-

cuit recognized in Washington, however, the fact that

Congress intended to respond to the decisions in

Hancock and EPA \. California merely explains “the

inclusion of the word ‘permits’ in section 6961.” 872

F.2d at 878,

More generally, the history of RCRA indicates that

Congress intended to subject federal agencies to “re-

quirements” to which the waivers of immunity be-

fore the Court in Hancock and EPA y. California did

not extend, That history does not, however, demon-

strate that Congress intended to waive sovereign im-

munity with respect to civil penalties, the specific

ayes,” as well as injunctive relief, for an alleved hazardous

waste spill by a Navy contractor. 606 F. Supp. at 161. The

court held that the term “requirements” in RCRA’s federal

facilities provision should be defined “as synonymous with

state objective revulations,” 606 F. Supp. at 16%, and that

the state statutes under which damages were sought did

not impose “requirements” within the meaning of the stat-

ute. The court thus adopted an interpretation of the term at

issue—“requ'rements”—that is inconsistent with the State’s

theory that that term includes monetary damayes or civil

penalties.

d

issue raised by this case. See Was/ington, 872 F.2d

at S7S8-879; Milzelfelt, 903 F.2d at 1295-1296, As

the Tenth Circuit observed in Mitzelfelt, “[t}he legis-

lutive response in RCRA to Hancock and [EPA vy.

California] was narrow, and did not extend the

waiver far beyond what had been waived in previous

statutes.” 903 F.2d at 1296.

The State also argues that the RCRA federal facill-

ties provision requires the federal government to com-

ply with “all * * * requirements,” and that in com-

mon usage the term “requirements” includes civil

penalties. Cross-Pet. 15. The Sixth Circuit in this

case, however, noted that that interpretation cannot

he squared with the Clean Water Act’s federal facili-

ties provision, which differs from the comparable

RCRA provision. As the court pointed out, the State’s

argument that “requirements” includes “sanctions”

would render the CWA’s reference to “sanctions”

superfluous.’ Pet. App. lla. The court also noted

that the RCRA provision “explicitly discusses injune-

tive relief twice, but never mentions monetary relief

‘Indeed, the State itself has consistently argued in the

court of appeals and in its brief in opposition in this Court

that the term “sanctions”’—-not the term “requirements’-—

in the CWA federal facilities provision waives federal sover-

cign immunity from civil penalties. See Br. in Opp. 14-15;

Ohio C.A. Br. 19-25. In the corresponding RCRA provision,

however, the term “sanctions” plainly refers to the mecha-

nism for enforcine injunctive relief, not to civil penalties.

Therefore, in contrast to its position with respect to the

CWA, the State argues that the term “requirements” in the

2CRA federal facilities provision effects a waiver of sover-

eign immunity from civil penalties. The State’s contrary

positions with respect to the same term in the two statutes

are an apt demonstration that the terms used are at best

ambiguous and hence cannot be construed as waivers of

sovereign immunity fiom civil penalties. See Pet. 15-16.

5

or civil penalties” (/bid.), and thus “appears to omit

civil penalties too neatly to be an accident.” /d. at

12a; accord Washington, 872 F.2d at 877. The statu-

tory letwaage therefore reasonably conveys Con-

gress’s intent to “inelud|e] substantive standards and

the means for implementing those standards, but ex-

cludfe] punitive measures.” Mifzelfelt, 903 F.2d at

1295.

3. The second question presented in the cross-

petition is whether the citizen suit provision of the

CWA, § 505, 38 U.S.C. 1365, should be construed to

subject federal instrumentalities to federal civil pen-

alties under the CWA itself. Because it apparently

found the issue moot in light of its disposition of the

other issues in this case, the court of appeals did not

reach it. See Pet. 11 n.6.

Only one court of appeals has directly addressed

this issue. In Sferva Club y. Lujan, No, 90-1183 (Apr.

50, 1991). the Tenth Circuit recently agreed with the

State’s contention in this case that civil penalties may

he assessed agninst the federn! government under the

CWA citizen suit provision. Slip op. 15-17. One dis-

trict court has rencehed a contrary conclusion.

McClellan Beoloqgical Seepage Situation (MESS) vy.

Weirmberqer, 655 F. Supp. 601, 605 (ELD. Cal. 1986).

As the State points out (Cross-Pet. 19), the CWA

citizen suit provision “uses waiver language virtually

identical to that of the RCRA citizen suit provisions.”

The second question presented in our petition is

whether the RCRA citizen suit provision waives fed-

eral sovereign immunity from federal civil penalties.

In light of the similar language used in the RCRA and

the CWA citizen suit provisions, resolution by this

Court of the second question presented in our peti-

tion is likely to provide the lower courts with sub-

stantial guidance concerning the meaning of the cor-

6

responding cw A provision. Therefore, although we

believe that the Court may not find it necessary to

add to the complexity of this case by granting cer-

tiorari on the second question presented in the State’s

cross-petition, we do not oppose further review with

respect to that question.

It is therefore respectfully submitted that the cross-

petition for a writ of certiorari should be denied as

to the first question presented.

KENNETH W. STARR

Solicitor General

May 1991

W ou S GOVERNMENT PRINTING OFFice, 1991 28206! 20515

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