Petitioners Brief — United States Department of Energy v. Ohio

Supreme Court brief1991

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In the Supreme Court of the United States ——

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF ENERGY, PETITIONER

Vv.

STATE OF OHIO, ET AL.

STATE OF OHIO, ET AL., CROSS-PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF ENERGY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN .

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor General

ROBERT L. KLARQUIST

JACQUES B. GELIN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

SE TS IS SE OIE SIT I SE SE EE CEE

QUESTIONS PRESENTED

1. Whether the federal facilities provision of the Clean

Water Act (CWA), § 313, 33 U.S.C. 1323, waives the

sovereign immunity of the United States from assess-

ment of civil penalties under state water pollution con-

trol laws.

2. Whether the citizen suit provision of the CWA,

§ 505, 33 U.S.C. 1365, waives the sovereign immunity of

the United States from assessment of federal civil penal-

ties for violations of the Clean Water Act.

3. Whether the federal facilities provision of the Re-

source Conservation and Recovery Act (RCRA), § 6001,

42 U.S.C. 6961, waives the sovereign immunity of the

United States from assessment of civil penalties.

4. Whether the citizen suit provision of RCRA, § 7002,

42 U.S.C. 6972, waives the sovereign immunity of the

United States from assessment of federal civil penalties

for violations of RCRA.

(1)

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

Attorney General of the State of Ohio was a plaintiff in

the district court and an appellee in the court of appeals.

TABLE OF CONTENTS

Page

Opinions below _........ eae a A 1

Nn eecnsneees a 1

Statutory provisions involved a st 9) 2

ccouscecneccovencs 2

Introduction and summary of argument ....... 12

Argument:

I. Under well-settled principles governing waivers

of sovereign immunity, the state cannot prevail

in this case unless it can identify waivers of fed-

eral sovereign immunity from civil penalties

that are clear and unambiguous... 15

II. The CWA federal facilities provision does not

waive federal sovereign immunity from assess-

ment of civil penalties under Ohio Rev. Code

a sccumueasoecces 18

III. The CWA citizen suit provision does not waive

federal sovereign immunity from assessment of

a enenoeueuce 31

IV. The RCRA federal facilities provision does not

waive federal sovereign immunity from assess-

ment of civil penalties ___.. EE 34

V. The RCRA citizen suit provision does not waive

federal sovereign immunity from assessment of

RCRA civil penalties ...................................... one 40

Conclusion _. ae > 44

a STR a = la

TABLE OF AUTHORITIES

Cases:

Alabama vV. Veterans Administration, 648 F. Supp.

1208 (M.D. Ala. 1986) “ke 34

America Well Works Co. v. Layne & Bow ler Co.,

I I an cnncssccsccccccsncccce ia 26

Cases—Continued : Page

Arcadia, Ohio v. Ohio Power Co., 111 S. Ct. 415

Saar eee eee ae ee 20

Block v. North Dakota, 461 U.S. 273 (1983) .......... 16

California v. Department of the Navy, 845 F.2d

2 8 eer eee 10-11, 29

California Vv. Walters, 751 F.2d 977 (9th Cir.

ae ee es 22, 24, 34, 35

EPA V. California, 426 U.S. 200 (1976) eee passim

Gully Vv. First Nat'l Bank, 299 U.S. 109 (1936). 28

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) 5, 6, 31, 33, 40

Hancock v. Train, 426 U.S. 167 (1976) ..... 16, 17, 22, 23,

37, 38, 40

Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961)... 21

Lehman Vv. Nakshian, 453 U.S. 156 (1981) ee 16

Library of Congress v. Shaw, 478 U.S. 310

aa ak es a ae 16

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

322 (D. Me. 1988), appeal pending, No. 91-1064

SII IITIIIITD -sccusiiesinssiisestiguiaahetiaaienisamananiididaaiateRasesiatabiaeaadisbiiest 34

McClellan Ecological Seepage Situation (MESS)

Vv. Weinberger, 655 F. Supp. 601 (E.D. Cal.

ASSURE SESE Se i, eet Es, Mee Ie 29, 34

Merrell Dow Pharmaceuticals, Inc. v. Thompson,

EIS RI RE ES Sie _ 26, 27

Meyer v. United States Coast Guard, 644 F. Supp.

I i 34

Missouri Pac. R.R. v. Ault, 256 U.S. 554 (1921) 16

Mitzelfelt v. Department of Air Force, 903 F.2d

| Se eee 11, 22, 34

Puerto Rico v. Shell Co., 302 U.S. 253 (1937) . 27

Romero V. International Terminal Operating Co.,

gg GE 26

Secretary of the Interior v. California, 464 U.S.

ace 40

Sierra Club v. Lujan, 931 F.2d 1421 (10th Cir.

RE SER nia en Ie SiN a err 31

Smith v. Kansas City Title & Trust Co., 255 U.S.

and 26

State v. Dayton Malleable, Inc., 1 Ohio St. 3d 151,

f° ps NSSERANIEEA PERE RSE Eee 27

Cases—Continued : Page

State v. Howard, 3 Ohio App. 3d 189, 444 N.E.2d

SESE A Pern eres a Pee 27

United States v. King, 395 U.S. 1 (1969) _........... “ 16

United States v. Mitchell, 445 U.S. 535 (1980)... 16

United States v. Press Publishing Co., 219 U.S. 1

ES NS TS earns ae ee OTe a 27

United States v. Sherwood, 312 U.S. 584 (1941)... 16

United States v. United Mine Workers, 330 U.S.

Ic MID esseanctanscechice catia irae iasiciaiin iain 39

United States v. Washington, 872 F.2d 874 (9th

SE Re RE Ss Ran een nO 11, 34

Verlinden B.V. v. Central Bank of Nigeria, 461

SPREE a ore See ee Oe 25

Constitution, Statutes and regulation:

fb RS 2 ee ae 5 amas 25

Clean Air Act, 42 U.S.C. 7601 (| RECS ares wae 7

§ 304(a), 42 U.S.C. 7604(a) ......... 7

Clean Air Act Amendments of 1966, § 118(f), 42

i, Se maison 37

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, Tit. 1, § 116, 91 Stat. 711 (42 U.S.C.

a bina 7,23

Clean Water Act, 33 U.S.C. 1251 ets seq. _...... passim

§ 101(b), 33 U.S.C. 1251 (b) are 29

§ 301 (a), 33 U.S.C. 1311 (a) ....................... 2

a ciceneeescinnsnen 2

§ 306, 33 U.S.C. 1316 NE See LEE SESE 2

I sence 2

a ecunseunsasoaiaia 36

§ 306(a), 38 U.S.C. 1318(a) ............................... 36

FS Ee \ 3

§ 309(d), 33 U.S.C. 1319(d) ~ sseeeeee. cb, 25, 27, 32

§ 313, 33 U.S.C. 1323 (Supp. IV 1976) 10, 22, 24, 37

8k ae ene 13

§ 313(a), 33 U.S.C. 1323 (a) (Supp. IV 1976) ..passim

FE eee ae 2

§ 402(a),33 U.S.C. 1342(a) _........ he A Bei 3

8 408 (b). 38 U.S.C. 18428(b) ............................... 8, 29

§ 402(b) (7), 33 U.S.C. 1342 (b) (7) 3

§ 402(c), 38 U.S.C. 1842 (c) ..............2.....2-.-20000 3

Statutes and regulation—Continued : Page

§ 402(d) (1), 33 U.S.C. 1342(d) (1) 2... 3

§ 402 (d) (2), 33 U.S.C. 1342(d) (2) 0... 3

§ 402 (k), 33 U.S.C. 13842(k) ie 3, 10

§ 502, 33 U.S.C. 1362... Rae ee nC 42

§ 502(5), 33 U.S.C. 1362(5) a

§ 505(a), 33 U.S.C. 1365(a). 2, 5, 14, 31, la, 3a

§ 506 (f), 38 U.S.C. 1865(f) 0... 5

Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980, 42 U.S.C. 9601

EES ee te ae Cane Re ee See 9, 40

Federal Assimilative Crimes Act, 18 U.S.C.13 27

Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, § 2, 86 Stat. 888 _ 18, 32

Resource Conservation and Recovery Act of 1976,

Pub. L. No. 94-580, § 2, 90 Stat. 2825 passim

$§ 1002, 42 U.S.C. 6901 et seq... Bi

§ 1004(15), 42 U.S.C. 6903 (15) 8, 42

§ 3001, 42 U.S.C. 6921... at aoe oN 6

§ 3004, 42 U.S.C. 6924... rare Sew . 6

ft 8) 8 eee ee 6

§ 3005(c), 42 U.S.C. 6925(c) nn. 6

§ 3006(b), 42 U.S.C. 6926(b) ___. re 6

§ 3006(c), 42 U.S.C. 6926(c) 7

§ 3006 (e), 42 U.S.C. 6926(e) . 7

§ 3008(a), 42 U.S.C. 6928(a) 7, 12,41

§ 3008 (g), 42 U.S.C. 6928(¢) 8, 12, 39, 41

ae 44

§ 6001, 42 U.S.C. 6961 a re

§ 7002, 42 U.S.C. 6972 . 1]

§ 7002 (a), 42 U.S.C. 6972 (a) (1982) 2, 8, 15, 41,

43, 3a, 5a

Safe Drinking Water Act, 42 U.S.C. 300j et seq.:

42 U.S.C. 300j-6 7

42 U.S.C. 300j-8 7

Superfund Amendments and Ranethestantion Act

of 1986, Pub. L. No. 99-499, 100 Stat. 1613,

§ 120, 42 U.S.C. 9620 a. 40

28 U.S.C. 1331 pocceinpaniineceananapial siniataaieiatinieaiii 25

Vil

Statutes and regulation—Continued : Page

EE ee ' 33

EER RR a Se OD ews 9

$1 U.S.C. 724a (Supp. I1 1978) .................000000.. 33

Ohio Rev. Code Ann. (Anderson) :

§ 3734.13 (1985 Ohio Laws 2295)... 4,8

ERE 2, 8, 10, 6a

Ohio Rev. Code Ann. § 6111.09 (Supp. 1987) ........ passim

ED. scsttupentelvenivbibtnoens 30

Miscellaneous:

A Legislative History of the Clean Water Act of

1977 (1978):

| A NEES EE nce aOR ee 23, 30

a piaiapsnaniveniubinesions 23

58 Comp. Gen. 667 (1979) a a a ae 34

118 Cong. Rec. 33,761 (1972) ........ Cte set A AN ESD 30

122 Cong. Rec. (1976) :

a 37

een 38

a Riel ae hale TRO A 38

132 Cong. Rec. 28,430 (1986) ae 40

187 Cong. Rec. H4887 (1991)......................00-0000... 39

48 Fed. Reg. (1983) :

i es , aaa iia 3

RULE aL SRA UPd REINS ; 7

51 Fed. Reg. 4128 (1986) — IE OO 7

H.R. 2194, 102d Cong., Ist Sess. (1991) 3 i 39

H.R. 3199, 95th Cong., 2d Sess. eos Ta a ME 23

H.R. 14496, 94th Cong., 2d Sess. (1976 36, 38

H.R. Conf. Rep. No. 113, 98th va 2d Sess.

(1984) 43

H.R. Conf. Rep. No. 198, 98th Cong. Ist Sess. Pt. 1

(1983) TEER CNET arte MEY it eee eae 43

H.R. Conf. Rep. No. 830, 95th Cong., ‘Ist Sess.

(1977) . cae FS

H.R. Rep. No. 370, 95th Cong.. Ist Sess. (1973)... 23

H.R. Rep. No. 962, 99th Cong., 2d Sess. (1986) 40

H.R. Rep. No. 1491, 94th Cong., 2d Sess. (1976) 36

VII

Miscellaneous—Continued : Page

L. Duffy, Statement Before House Comm. on

Armed Services (June 6, 1991) 0000000000000... 39

S. 596, 102d Cong., Ist Sess. (1991) 00 .. 39

S. 3622, 94th Cong., 2d Sess. (1976) 000000000... $7

S. Rep. No. 284, 98th Cong., Ist Sess. (1983) —.......... 43

S. Rep. No. 988, 94th Cong., 2d Sess. (1978) _.... nan 37

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1341

UNITED STATES DEPARTMENT OF ENERGY, PETITIONER

STATE OF OHIO, ET AL.

No. 90-1517

STATE OF OHIO, ET AL., CROSS-PETITIONERS

UNITED STATES DEPARTMENT OF ENERGY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The decision of the court of appeals (Pet. App. la-

27a) is reported at 904 F.2d 1058. The decision of the

district court (Pet. App. 28a-44a) is reported at 689 F.

Supp. 760.

JURISDICTION

The judgment of the court of appeals (Pet. App. 47a-

48a) was entered on June 11, 1990. A petition for re-

hearing was denied on October 10, 1990. Pet. App. 45a-

(1)

46a. The petition in No. 90-1341 was filed on February

22, 1991. The cross-petition in No. 90-1517 was filed on

March 26, 1991. This Court granted the petition and

the cross-petition and consolidated the cases on June 3,

1991. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Sections 313(a) and 505(a) of the Clean Water Act

(CWA), 33 U.S.C. 1323(a), 1365(a), are reproduced at

App., infra, la-3a. Sections 6001 and 7002(‘a) of the

Resource Conservation and Recovery Act (RCRA), 42

U.S.C. 6961, 6972, are reproduced at App., infra, 3a-

6a. Section 3734.13(C) and 6111.09 of the Ohio Revised

Code are reproduced at App., infra, 6a-Ta.

STATEMENT

This case raises the question whether certain provi-

sions of the CWA, 33 U.S.C. 1251 et sey., and RCRA, 42

U.S.C. 6901 et seq., waive federal sovereign immunity

from civil penalties.

1. a. Section 301/a) of the CWA, 33 U.S.C. 1311 (a),

prohibits the discharge of pollutants into navigable

waters of the United States except pursuant to a permit

issued under Section 402 of the Act, 33 U.S.C. 1342. To

implement Section 301(a)’s conditional prohibition, the

EPA Administrator is directed to establish effluent limi-

tations and standards of performance for “point sources”

of pollution. CWA §§ 304, 306 and 307, 33 U.S.C. 1314,

1316, and 1317. Through the National Pollution Dis-

charge Elimination System (NPDES), established pur-

suant to Section 402 of the CWA, these standards and

limitations, together with certain possible limitations

based on state law, are incorporated into individual

NPDES discharge permits. See generally EPA v. Cali-

fornia, 426 U.S. 200, 202-209 (1976). Once an NPDES

permit is issued, “|c]ompliance with a permit * * * shall

be deemed compliance * * * with” most of the require-

ments of the CWA. CWA § 402(k), 33 U.S.C. 1342(k);

EPA Vv. California, 426 U.S. at 205 (“in short, the per-

mit defines, and facilitates compliance with, and enforce-

ment of, a preponderance of a discharger’s obligations

under” the Act).

Although CWA Section 402(a) gives EPA authority

to issue NPDES permits in the first instance, CWA Sec-

tion 402(b) provides that a State may administer its own

permit program in lieu of the federal program if EPA

determines that the state program meets certain mini-

mum standards.' Among those standards is the require-

ment that the state program must provide “adequate au-

thority * * * |t]o abate violations of the permit or the

permit program, including civil and criminal penalties

and other ways and means of enforcement.” CWA § 402

(b) (7), 33 U.S.C. 1342(b) (7). When EPA approves a

State program, the issuance of permits and the admin-

istration of the NPDES program become a state func-

tion. See CWA § 402(c), 33 U.S.C. 1342(c). The State.

however, must still notify EPA of applications for and

approvals of permits. CWA § 402(d) (1), 33 U.S.C. 1342

(d)(1). After an approved state program has begun to

function, EPA generally retains authority to object to the

issuance of particular permits (CWA § 402(d) (2), 33

U.S.C. 1342(d)(2)), to monitor the state program to en-

sure that it continues to meet federal minimum stand-

ards (CWA § 402(c), 33 U.S.C. 1342(c)), and, after

notification to the State, to enforce the terms of state-

issued permits if the State has failed to institute enforce-

ment actions of its own. CWA § 309ia), 33 U.S.C.

1319(a). ,

b. Two provisions in the CWA address aspects of fed-

eral amenability to suit. The State asserted in this liti-

gation that each of those provisions constitutes an inde-

pendent basis for claiming civil penalties against the

federal government.

'The respondent State of Ohio obtained such EPA approval

on January 14, 1983. 48 Fed. Reg. 5918 (1983).

i. The federal facilities provision of the CWA, Section

313(a) 33 U.S.C. 1323(a), provides that federal facili-

ties “shall be subject. to, and comply with, all Federal,

State, interstate, and local requirements, administrative

authority, and process and sanctions respecting the con-

trol and abatement of water pollution in the same man-

ner and to the same extent as any nongovernmental en-

tity.” Section 313(a) then adds that the above sentence

shall apply (A) to any requirement whether sub-

stantive or procedural (including any recordkeeping

or reporting requirement, any requirement respect-

ing permits and any other requirement, whatsoever),

(B) to the exercise of any Federal, State, or local

administrative authority, and (C) to any process

and sanction, whether enforced in Federal, State,

or local courts or in any other manner.’

Section 313(a) further provides, however, that “the

United States shall be liable only for those civil penalties

arising under Federal law or imposed by a State or local

court to enforce an order or the process of such court.”

According to the State, the above provision generally

waives federal sovereign immunity from assessment of

civil penalties under either the CWA itself or state water

pollution statutes, provided that the civil penalties meet

the requirement of the proviso—i.e., that they “aris{e|

under Federal law.” Under Ohio Rev. Code Ann.

$6111.09 (Anderson Supp. 1987), ‘‘[a]ny person who

violates {state water pollution regulations] shall pay a

civil penalty of not more than ten thousand dollars per

day of violation, to be paid into the state treasury to the

credit of the general revenue fund.” * The State asserts

2 Section 313(a) also adds that “[t]his subsection shall apply

notwithstanding any immunity of such agencies, officers, agents,

or employees under any law or rule of law.”

* All references to Ohio Rev Code § 6111.09 and to the penalty

provision of the state hazardous waste act, Ohio Rev. Code

$ 3724.13(C), are to those provisions as they were when this law-

suit was filed. See App.,-infra, 6a-7a. Although both provisions

that this civil penalty provision can be said to “arise

under” Federal law, since it is part of the EPA-approved

Ohio permit program. The State argues that the CWA

federal facilities provision therefore waives federal sov-

ereign immunity from assessment of civil penalties pay-

able to the state treasury under Ohio Rev. Code

$ 6111.09.

ii. In addition to the federal facilities provision, the

CWA’s citizen suit provision, Section 505(a), 33 U.S.C.

1365(a}, also addresses federal amenability to suit in the

course of defining the broad right of citizens to sue any

entity in violation of the CWA’s standards. See gen-

erally Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987). Under Section

505(a), “any citizen may commence a civil action * * *

against any person (including * * * the United States)”

to enforce an “effluent standard or limitation,” which is

defined by CWA Section 505(f), 33 U.S.C. 1365(f}, to

include an NPDES permit, whether issued under federal

or state law. The citizen suit provision thus includes the

federal government among those entities that can be de-

fendants in CWA citizen suits. Section 505(a) further

provides that district courts shall have jurisdiction in

such citizen suits to require compliance with an NPDES

permit and to apply “any appropriate civil penalties”

under the CWA’s civil penalties provision, Section 309

(d), 33 U.S.C. 1319(d). Section 309(d) itself provides

that “ja|ny person” who violates the permit provisions

of the Act “shall be subject to a civil penalty not to ex-

ceed $25,000 per day for each violation.” The term “per-

son” in turn is defined in CWA Section 502(5), 33

U.S.C. 1362(5), to refer to a detailed list of entities that

does not include the federal government.*

have since been amended, the changes are not significant for pur-

poses of this case.

* Section 502 provides:

Except as otherwise specifically provided, when used in

this chapter:

The State asserts that CWA civil penalties against the

federal government are “appropriate” under the citizen

suit provision. Like any federal civil penalties and un-

like the state penalties sought under the CWA’s federal

facilities provision, such federal civil penalties must be

deposited into the federal treasury. See Gwaltney, 484

USS. at 53.

2. a. Originally enacted on October 21, 1976, RCRA, 42

U.S.C. 6901 et seqg., was the first federal effort to address

the problem of hazardous waste. In Subtitle C, 42 U.S.C.

6921 et seg., RCRA creates a “‘cradle-to-grave” manage-

ment system intended to ensure that hazardous wastes

are safely treated, stored, and disposed of. Section 3004

of RCRA requires EPA to promulgate regulations estab-

lishing performance standards applicable to owners and

operators of new and existing treatment, storage, or dis-

posal facilities to protect health and the environment.

42 U.S.C. 6924.

RCRA’s permit system is administered in relevant re-

spects much like that created by the CWA. Section 3005

of RCRA requires any facility that treats, stores, or dis-

poses of hazardous waste to obtain a permit. 42 U.S.C.

6925. Section 3005(c) authorizes EPA or a State to

issue such a permit only upon determining that the facil-

ity is in compliance with the standards promulgated by

EPA under Section 3004. The statute provides that a

State may issue and enforce hazardous waste manage-

ment permits after it has applied to EPA to administer

a hazardous waste program “‘in lieu of the Federal! pro-

gram” and EPA has authorized the program on the

ground that it “is * * * equivalent to the Federal pro-

gram” and provides “adequate enforcement” of RCRA’s

requirements. RCRA § 3006(b), 42 U.S.C. 6926(b). A

* * * * *

(5) The term “person” means an individual, corporation,

partnership, association, State, municipality, commission, or

political subdivision of a State, or any interstate body.

State may obtain interim EPA authorization for its haz-

ardous waste program if the program is found to be

“substantially equivalent” to the federal program.’

RCRA § 3006(c), 42 U.S.C. 6926(c). Even after an

approved state program has begun to function, EPA gen-

erally retains authority to monitor the state program to

ensure that it continues to meet federal minimum stand-

ards (RCRA § 3006(e), 42 U.S.C. 6926(e)), and to en-

force the terms of state-issued permits after notifying

the State if the State has failed to institute enforcement

actions of its own. RCRA § 3008(a), 42 U.S.C. 6928/a).

b. Two provisions in RCRA address aspects of federal

amenability to suit for violation of hazardous waste regu-

lations. As with the CWA, the State has asserted in this

litigation that each of the provisions constitutes an inde-

pendent basis for claiming civil penalties against the fed-

eral government."

i. The federal facilities provision of RCRA, Section

6001, 42 U.S.C. 6961, contains somewhat different lan-

guage from the corresponding CWA provision. RCRA

Section 6001 provides that facilities operated by the fed-

eral government “shall be subject to, and comply with, all

Federal, State, interstate, and local requirements, both

substantive and procedural (‘including any requirement

for permits or reporting or any provision for injunctive

relief and such sanctions as may be imposed by a court

to enforce such relief), respecting control and abatement

of solid waste or hazardous waste disposal in the same

manner, and to the same extent, as any person is subject

to such requirements.”

The State asserts that this provision simply waives

federal sovereign immunity from assessment of civil pen-

* Ohio received interim authorization for its program on July 15,

1983. 48 Fed. Reg. 32,345 (1983). However, EPA withdrew that

authorization on January 31, 1986. 51 Fed. Reg. 4128 (1986).

* Provisions that correspond to the citizen suit and federal

facilities provisions of the CWA and RCRA can be found in the

Safe Drinking Water Act, 42 U.S.C. 300j-8 (citizen suit), 42

U.S.C. 300j-6 (federal facilities), and the Clean Air Act, 42 U.S.C.

7604(a) (citizen suit), 42 U.S.C. 7418(a) (federal facilities).

alties for hazardous waste violations, with no require-

ment that such civil penalties must “aris{e] under Fed-

eral law,” as in the CWA. Ohio Rev. Code § 3734.13(/C)

(1985 Ohio Laws 2295) provides that the state attorney

genera! may bring an action for any violation of the state

hazardous waste statutes and that in such an action

“(t]he court may impose * * * a civil penalty of not

more than ten thousand dollars for each day of each vio-

lation. * * * Moneys resulting from civil penalties im-

posed under [this provision] shall be paid into the haz-

ardous waste clean-up fund” created elsewhere in the

statute. Therefore, the State argues, the RCRA federal

facilities provision includes a waiver of federal sovereign

immunity from assessment of civil penalties payable to

the state hazardous waste clean-up fund under Ohio Rev.

Code § 3734.13.

ii. RCRA’s citizen suit and civil penalties provision

are very similar to the corresponding CWA provisions.

Under RCRA’s citizen suit provision, Section 7002(a), 42

U.S.C. 6972(a), “any person may commence a civil ac-

tion * * * against any person (including * * * the

United States * * *)” to enforce a “permit, standard,

regulation, condition, requirement, prohibition, or order”

under RCRA. Section 7002(a) further provides that dis-

trict courts shall have jurisdiction in such citizen suits

to require compliance with RCRA and to apply “any ap-

propriate civil penalties” under RCRA’s civil penalties

provision, Section 3008(g¢), 42 U.S.C. 6928(g). Section

3008(g) itself provides that “|a]ny person who violates

any requirement of {relevant RCRA provisions] shall be

liable to the United States for a civif penalty in an

amount not to exceed $25,000 for each such violation.”

The term “person” is defined in RCRA Section 1004/15),

42 U.S.C. 6903(15), to refer to a list of entities that does

not include the federal government.’

7 Section 1004(15) provides:

The term “person” means an individual, trust, firm, joint

stock company, corporation (including a government corpor-

ation), partnership, association, State, municipality, commis-

sion, political subdivision of a State, or any interstate body.

As with the corresponding CWA citizen suit provision,

the State asserts that RCRA civil penalties against the

federal government are “appropriate” under the above

RCRA provision.

3. In this case, the State of Ohio filed suit in federal

district court against the Department of Energy, the

Secretary of Energy, and the Department of Energy’s

former private contractor, alleging that defendants had

improperly treated, stored, and disposed of hazardous

wastes and had improperly discharged pollutants and con-

taminants into waters at the Department of Energy’s

uranium processing plant in Fernald, Ohio. The State,

relying on RCRA, the CWA, and state environmental

laws, sought, inter alia, injunctive relief and civil penal-

ties against the Department of Energy under both state

and federal law. J.A. 3-43.

In the district court, the United States moved to dis-

miss all claims for civil penalties as barred by the federal

government’s sovereign immunity. The court denied the

motion, holding that federal sovereign immunity was

waived under RCRA and the CWA as to both federal

and state penalties. Pet. App. 28a-44a. The parties sub-

sequently entered into a consent decree settling the in-

juctive relief claims. J.A. 63-86.* As part of the overall

settlement, the parties stipulated to the amount of civil

penalties to be paid—a potential total of $125,000 for

water po..ution violations and $125,000 for hazardous

waste violation—if the United States does not prevail on

appeal. J.A. 88-89.

The district court certified (C.A. App. 105) an inter-

locutory appeal of the civil penalties issue under 28

U.S.C. 1292(b), and the Sixth Circuit granted the un-

opposed petition of the United States for permission to

appeal. C.A. App. 157.

* The State’s complaint also contained two claims based on the

Comprehensive Environmental Response, Compensation, and Lia-

bility Act of 1980, 42 U.S.C. 9601 ef seq. Pursuant to the consent

decree, one of those claims was dismissed and the other was

stayed. J.A. 78.

4. A divided panel of the Sixth Circuit affirmed the

district court in part, holding that the federal facilities

provision of the CWA does waive federal sovereign im-

munity from civil penalties assessed under Ohio Rev.

Code § 6111.09 and payable to the state treasury, that

the federal facilities provision of RCRA does not waive

federal sovereign immunity from civil penalties under

Ohio Rev. Code § 3734.13(C), and that the citizen suit

provision of RCRA does waive federal sovereign im-

munity from civil penalties payable to the federal treas-

ury under RCRA’s own civil penalties provision. The

court did not reach the State’s contention that the citizen

suit provision of the CWA, like the citizen suit provision

of RCRA, waives federal sovereign immunity from civil

penalties under federal law. See Pet. 11 n.6.

a. With respect to the CWA, the court found that sov-

ereign immunity was waived by Section 313 for penalties

“arising under Federal law.” Pet. App. 4a-6a. The court

then considered whether immunity for civil penalties

under Ohio Rev. Code § 6111.09 was waived and held that

immunity from such state civil penalties was waived be-

cause they “arise under” federal law. The court rea-

soned (Pet. App. 7a):

Once a state water pollution law is approved, com-

pliance with the state law is compliance with the

Clean Water Act. 33 U.S.C. § 1342(k). Thus, under

the terms of the Clean Water Act, a qualifying state

water pollution law, including its civil penalties,

arises under federal law.

Judge Guy dissented as to the holdings concerning both

the CWA and RCRA. Pet. App. 16a-27a. With respect

to the CWA, he agreed with the majority (Pet. App. 19a-

20a) that the federal facilities provision of the CWA,

Section 313(a), waives sovereign immunity for civil pen-

alties arising under federal—but not state—law. How-

ever, in determining which civil penalties arise under

federal law, Judge Guy agreed with the Ninth Circuit’s

decision in California v. Department of the Navy, 845

F.2d 222 (1988), that a State’s EPA-approved permit

program and penalties assessed thereunder do not

“aris{e| under federal law.” Pet. App. 22a-24a. He

based this conclusion on the explicit statutory recognition

that a State “administer|s] its own permit program

* * * upon approval of the program by |the] EPA.” He

also relied on statements in the statute’s legislative his-

tory that state permit programs “function|| in lieu of

the Federal program.” Pet. App. 23a (quoting H.R.

Conf. Rep. No. 830, 95th Cong., ist Sess. 104 (1977)).

b. With respect to RCRA, the court held that any

waiver of sovereign immunity from civil penalties in Sec-

tion 6001 “is not stated clearly enough to be recognized.”

Pet. App. 10a. The court thus unanimously rejected the

district court’s conclusion that the federal facilities pro-

vision waives the federal government’s sovereign im-

munity from state or federal civil penalties. Pet. App.

9a-12a, 17a n.1 (Guy, J., dissenting). The court of ap-

peals reasoned that the RCRA federal facilities provision

differs from the analogous CWA provision in ways that

make clear that no waiver as to civi! penalties was in-

tended in RCRA. Pet. App. lla. In addition, the court

observed that although Section 6001 explicitly discusses

injunctive relief twice, it never mentions monetary relief

or civil penalties. Pet. App. lla-12a. Accord United

States v. Washington, 872 F.2d 874 (9th Cir. 1989):

Mitzelfelt v. Department of Air Force, 903 F.2d 1293

(10th Cir. 1990).

The majority did, however, find that RCRA’s citizen

suit provision, Section 7002, 42 U.S.C. 6972, constituted

a waiver of federal immunity from civil penalties as-

sessed under RCRA’s own civil penalties provision. Ob-

serving that RCRA’s citizen suit provision generally

authorizes suits against the United States (Pet. App.

15a), the court concluded that the “fairest reading” of

the provision is that Congress intended to subject the

United States to the application of “appropriate” civil

penalties. In addition, the majority stated, RCRA’s legis-

lative history demonstrates that Congress intended to sub-

ject the United States to civil penalties in citizen suits.

Pet. App. 15a-16a.

Judge Guy disagreed with the majority’s conclusion

that the citizen suit provision of RCRA authorizes civil

penalties against the United States. Judge Guy found

that, under the express language of the provision, “ju-

dicial authority to impose civil penalties in response to

RCRA citizen suits is limited to sanctions permitted

under 42 U.S.C. §§ 6928(a) and ‘g).” Pet. App. 25a.

Because the United States is excluded from RCRA’s gen-

eral definition of “person{s|” against whom civil penal-

ties may be levied under those Sections, the reference in

the citizen suit provision to those Sections precludes as-

sessment of civil penalties against the United States. Pet.

App. 25a-26a. He also noted that the exclusion of the

United States from those entities subject to civil penalties

is “entirely logical” because the penalties assessed under

RCRA are payable “to the United States.” Pet. App.

26a n.4 ‘quoting 42 U.S.C. 6928'g)). He concluded that

RCRA waives sovereign immunity only to the extent that

it permits States to seek declaratory and injunctive re-

lief. Pet. App. 26a.

INTRODUCTION AND SUMMARY OF ARGUMENT

1. The issue in this case is whether certain provisions

of the CWA and RCRA waive federal] sovereign immun-

ity from assessment of civil penalties for past violations

of state or federal clean water and hazardous waste reg-

ulatory programs. It is undisputed that the various pro-

visions at issue do permit some suits to be brought—

and some remedies to be imposed—against the federal

government that would otherwise be barred by federal

sovereign immunity. The line that the statutes draw,

however, is the line between prospective and retrospec-

tive relief. That is, they permit suits to be brought

against the federal government to enjoin future viola-

tions, and they permit a court to assess sanctions for

failure to comply with such injunctions. But they do not

waive federal sovereign immunity from civil] penalties

imposed to penalize past violations of clean water or

hazardous waste disposal regulations.

The congressional decision to permit prospective relief

but not civil penalties is embodied in the plain language

of the statutes. Insofar as any doubt may remain, am-

biguities must be resolved against finding a waiver of

sovereign immunity. This Court’s decisions make clear that

such a waiver is not to be implied; it requires evidence

that Congress has stated its intention to waive immunity

in clear and unmistakable terms. When Congress enacted

the provisions at issue in this case, it legislated against

the background of this well-settled “clear statement” rule.

As shown both by alternative versions of the CWA fed-

eral facilities provision that were rejected and recent bills

that would amend RCRA’s federal facilities provision,

Congress knows how to fashion language to make clear its

intent to waive sovereign immunity from civil penalties.

The absence of any such language in the provisions at

issue here is thus particularly telling, and application of

the “clear statement” rule is entirely appropriate.

2. Neither of the CWA provisions at issue consti-

tutes a waiver of federal sovereign immunity from the

civil penalties sought in this case. The federal facilities

provision, CWA § 313, 33 U.S.C. 1323, does not expressly

waive sovereign immunity as to civil penalties. The only

language that is asserted to waive sovereign immunity

as to civil penalties—the term “sanctions”—does appear

in the statute, but in each place it appears it is used in

the phrase “process and sanctions” to refer only to in-

junctions and such sanctions as are necessary to enforce

compliance with them.

Furthermore, Congress made particularly clear that

civil penalties such as those sought here by the State

pursuant to Ohio Rev. Code § 6111.09 could not be as-

sessed against the federal government, by including in

Section 313(a) the proviso that “the United States shall

be liable only for those civil penalties arising under Fed-

eral law.” Ohio Rev. Code § 6111.09 was enacted by the

Ohio legislature. The incidents of such penalties, includ-

ing the circumstances under which they may be assessed,

the machinery for assessing them, and the amounts of

such penalties, are all governed entirely by state law; the

state statute applies to potential defendants ex proprio

vigore. Although the State claims that the fact that

EPA approved the state water pollution permit scheme is

significant, that fact alone does not convert civil penal-

ties governed entirely by state law into penalties ‘‘aris-

ing under Federal] law,” under the well-settled legal mean-

ing of that phrase.

Nor does the CWA citizen suit provision, £ 505(a),

33 U.S.C. 1365(a), provide an independent basis for

assessment of federal civil penalties against federal agen-

cies. That provision unmistakably authorizes citizen

suits against federal agencies, as well as non-federal

entities, in specified circumstances. It also authorizes

district courts in such citizen suits to assess “appropri-

ate” civil penalties, as provided in the CWA civil pen-

alties provision. The latter provision, however, author-

izes civil penalties only against “persons,” a term de-

fined in the statute as comprising a detailed list of enti-

ties that does not include the federal government. It is

thus not “appropriate,” in the language of the CWA citi-

zen suit provision, to assess civi] penalties against the

federal government.

3. The RCRA federal facilities provision, § 6001, 42

U.S.C. 6961, is even less conducive than the correspond-

ing CWA provision to interpretation as a waiver of fed-

eral sovereign immunity from civil penalties. The State’s

argument with respect to the CWA provision hinges on

the statutory language subjecting federal agencies to

“process and sanctions.” Yet the term “sanctions,” as

used in the RCRA provision, could not refer to civil pen-

alties, and the State thus far in this litigation has not

contended otherwise. Instead, the State asserts that in

the RCRA provision, Congress subjected federal agencies

to civil penalties through use of the general phrase “all

* * * yequirements.” That phrase, however, is most natu-

rally read to refer to permit requirements and similar

means of applying RCRA’s general standards to particu-

lar facilities, not penal measures. The history of the

statute, which shows that the phrase “all * * * require-

ments” was intended to respond to decisions of this Court

holding that federal facilities need not comply with state

permit requirements, supports that conclusion,

Finally, the RCRA citizen suit provision, § 7002‘a), 42

U.S.C. 6972(a), whose language in relevant respects is

quite similar to that of the corresponding CWA provision,

should not be construed to waive federal sovereign im-

munity from civil penalties. Like the corresponding CWA

provision, it renders federal agencies amenable to citizen

suits and generally permits courts to assess civil pen-

alties where “appropriate” under the RCRA civil penal-

ties provision. The citizen suit provision does not, how-

ever, contradict the effect of the civil penalties provision’s

exclusion of the federal government from the “person[s]”

subject to civil penalties under RCRA.

ARGUMENT

I. UNDER WELL-SETTLED PRINCIPLES GOVERN-

ING WAIVERS OF SOVEREIGN IMMUNITY, THE

STATE CANNOT PREVAIL IN THIS CASE UN-

LESS IT CAN IDENTIFY WAIVERS OF FEDERAL

SOVEREIGN IMMUNITY FROM CIVIL PENALTIES

THAT ARE CLEAR AND UNAMBIGUOUS

The various statutory provisions at issue in this case

speak for themselves, and none of them contains language

indicating a congressional intent to waive federal sov-

ereign immunity from either federal or state civil pen-

alties. This is especially so in light of the well-settled

principles that waivers of sovereign immunity must be

clear and unambiguous and must be construed strictly in

favor of the sovereign.

Under a long line of decisions by this Court, a waiver

of sovereign immunity by the federal government must

be unequivocally expressed and may not be implied, as-

sumed, or based on speculation or ambiguity. Block v.

North Dakota, 461 U.S. 273, 280 (1983): United States

V. Mitchell, 445 U.S. 535, 538 (1980); United States v.

King, 395 U.S. 1, 4 (1969). Any asserted waiver of the

United States’ immunity to suit must be construed

“strictly in favor of the sovereign” and “not enlarge[d]

* * * ‘beyond what the language requires.’” Library of

Congress V. Shaw, 478 U.S. 310, 318 (1986) (citation

omitted); accord United States v. Sherwood, 312 US.

584, 590 (1941). As in other contexts, asserted waivers

of sovereign immunity in federal environmental statutes

must be “clear and unambiguous.” Hancock v. Train,

426 U.S. 167, 179 (1976): EPA v. California, 426 U.S.

at 211.

The foregoing principles have particular force in two

circumstances, both of which are present in this case.

First, where the asserted waiver of sovereign immunity

affects the federal fisc, see Lehman v. Nakshian, 453 U.S.

156, 161 & n.8 (1981), and especially where the asserted

waiver would subject the federal government to penal

laws, courts require a particularly clear statement in

order to find that a statute phrased in otherwise general

terms waives federal sovereign immunity. For example,

in Missouri Pac, R.R. v. Ault, 256 U.S. 554 (1921), the

Court held that a statute waiving sovereign immunity

in terms similar to those in the CWA and RCRA was

insufficient to waive federal immunity to fines and pen-

alc‘es. The statute at issue provided that rail carriers

“while under Federa! control shall be subject to all laws

and liabilities as common carriers, whether arising under

State or Federal laws or at common law.” 256 U.S. at

558. The phrase “all laws and liabilities” is, if anything,

broader than the language asserted by the State to waive

sovereign immunity from civil penalties in this case.

Nonetheless, Justice Brandeis, writing for a unanimous

Court, noted that “the element of punishment clearly

predominates” with respect to the penalties sought (256

U.S. at 565) and consequently held that—notwithstand-

ing the general terms used in the statute—“Congress has

not given its consent that suits of this character be

brought against the United States.” bid.

'n addition, as this Court observed in Hancock v. Train,

426 U.S. 167, 179 (1976), “|p]articular deference should

be accorded” the rule requiring a waiver of sovereign

immunity to be clear and unambiguous where “the rights

and privileges of the Federal Government at stake not

only find their origin in the Constitution, but are to be

divested in favor of and subjected to regulation by a

subordinate sovereign.” See also id. at 178-179 (noting

“fundamental importance of the principles shielding fed-

eral installations and activities from regulation by the

States”). Insofar as the State here seeks civil penalties

to be determined in accordance with state law and to be

paid into the state treasury, especially rigorous applica-

tion of the clear statement standard to the asserted

waiver of sovereign immunity from civil penalties is

therefore required.

The principles requiring narrow construction of waiv-

ers of sovereign immunity have changed little over the

years. In addition, all but one of the statutory provisions

at issue in this case were enacted shortly after this

Court’s decisions in Hancock v. Train and EPA v. Cali-

fornia—iecisions that expressly rested on application of

the established clear statement rule concerning asserted

waivers of federal sovereign immunity, see Hancock vy.

Train, 426 U.S. at 178-180; EPA v. California, 426 U.S.

at 21!—and with undoubted congressional consideration

of those decisions.” Congress thus enacted these provisions

*The two RCRA provisions at issue were enacted in 1976.

Since that time, the federal facilities provision has changed little,

but the citizen suit provision was amended in 1984. See pp.

43-44, infra. The CWA federal facilities provision was modified,

partially in response to EPA y. California, in 1977. See pp. 22-24,

with full knowledge of the clear statement rule, and

Congress’s failure to include any language that ap-

proaches a clear and unambiguous statement waiving sov-

ereign immunity from civil penalties establishes that Con

gress intended no such waiver.

Il. THE CWA FEDERAL FACILITIES PROVISION

DOES NOT WAIVE FEDERAL SOVEREIGN IM-

MUNITY FROM ASSESSMENT OF CIVIL PENAL-

TIES UNDER OHIO REV. CODE § 6111.09

The court of appeals made two distinct errors in con-

cluding that the federal facilities provision of the CWA,

$313/a), 33 U.S.C. 1323(a), waives federal sovereisn

imunity from state-law civil penalties. First, the court

mistakenly held that the federal facilities provision, which

concededly waives federa] sovereign immunity from in-

junctive relief and sanc'ions to enforce compliance with

such injunctions, supplies a sufficiently clear waiver of

federal sovereign immunity from civil penalties. Pet.

App. 4a-6a. Second, the court compounded its error by

holding that “practically speaking, actions under a qual-

ifying state water pollution law arise under federal law”

(Pet. App. 7a) and therefore satisfy the “arising under

Federal law” proviso contained in the CWA federal facil-

ities provision.

1. The language of the CWA federal facilities pro-

vision does not waive the federal government’s sovereign

immunity from civil penalties. The first sentence of

Section 313(a) provides, in relevant part:

Each department, agency, or instrumentality * * *

of the Federal Government * * * and each officer,

agent, or employee thereof in the performance of his

official duties, shall be subject to, and comply with,

all Federal * * * requirements, administrative au-

thority, and process and sanctions respecting the

infra. The language upon which the State relies in the CWA citizen

suit provision, however, dates from i972. See Pub. L. No. 92-500,

§ 2, 86 Stat. 888.

control and abatement of water pollution in the same

manner, and to the same extent as any nongovern-

mental entity * * *.

33 U.S.C. 1323(a). This sentence refers to the follow-

ing distinct types of regulation to which federal facili-

ties are subject: “all * * * requirements, administra-

tive authority, and process and sanctions.”

a. The State argued below that the above sentence

is the operative waiver of sovereign immunity from civil

penalties. In particular, the State argued that this sen-

tence waives federal sovereign immunity from a number

of different items, among which are “sanctions.” Since

civil penalties are “sanctions,” the State concluded, the

language in the above provision subjecting the federal

government to “sanctions” has the effect of waiving sov-

ereign immunity from civil penalties. See Ohio C.A. Br.

18-25. :

The State’s reading of the statute is erroneous, for

the statute does not waive federal sovereign immunity

as to a distinct category consisting of all types of “‘sanc-

tions.” Indeed, the language of the sentence does not bear

the meaning that the State seeks to impose on it. To be

sure, the language does embody a list of items as to which

sovereign immunity is to be waived. That list, however,

is separated by commas and the term “and” in such a

way that “sanctions” cannot be read as a separate and

coordinate item on the list. Instead, by placing the word

“and” before the term “process’—“all * * * require-

ments, administrative authority, and process and sanc-

tions” ‘emphasis added )—Congress made clear that there

were three, not four, items on the list, and that “sanc-

tions” was linked to “process” as a unitary expression.”

The conclusion that the term “sanctions” in Section 313(a)

refers only to penalties for assuring compliance with injunctive

relief follows also from the fact that, when Congress added the

term to the CWA in 1977, it had before it as a model the cor-

responding RCRA provision that had been enacted the prior year.

The RCRA provision, RCRA § 6001, 42 U.S.C. 6961, employs the

phrase “process or sanction,” a phrase almost identical to the

Under the State’s interpretation, the use of the term

“and” before “process” is not only surplusage; it is in

irresolvable conflict with ordinary English grammar. Cf.

Arcadia, Ohio v. Ohio Power Co., 111 8. Ct. 415, 419

(1990).

The structure of the statute bears out the congres-

sional intent to authorize “sanctions” against the fed-

eral government only in connection with “process,” i.e.,

as a means of ensyring compliance with injunctive re-

lief (or other court order}. The second sentence pro-

vides, in relevant part:

The preceding sentence shall apply (A) to any re-

quirement whether substantive or procedural (in-

cluding any recordkeeping or reporting requirements,

any requirement respecting permits and any other

requirement, whatsoever), (B) to the exercise of any

Federal, State or local administrative authority, and

in Federal, State, or local court or in any other

manner.

This sentence in orderly fashion elaborates on each of

the categories listed in the first sentence. With respect

to the first category, it makes clear that “requirements”

refers to “any requirement whether substantive or pro-

cedural.” With respect to the second category, it pro-

vides that “administrative authority” includes such au-

thority exercised by any level of government. Finally,

with respect to the third category, it states that “process

and sanctions” refers to “any process and sanction,

whether enforced in Federal, State, or local courts or in

any other manner.” Thus, the second sentence reinforces

the conclusion that there are three—not four—items in

the list, even going so far as to designate them (A), (B),

and (C).

phrase “process and sanctions” in the CWA. As we argue below

(see p. 35, infra), that phrase as used in RCRA refers only to

penalties imposed to secure compliance with injunctive relief; it

could not sensibly refer to civil penalties.

With respect to the third category, the statute again

uses the term “process and sanction” as a unitary ex-

pression; this time, the addition of the word “any” and

the use of the singular form “sanction” emphasizes that

Congress intended here to subject the federal government

to a single type of legal authority—process and sanction.

Although the sentence goes on to provide that the type

of court and manner of enforcement does not affect the

waiver, neither here nor elsewhere in the text of the pro-

vision is there a reference to “sanctions” generally, apart

from the unitary expression “process and sanction.” ™

b. While the State read the list of items as to which

sovereign immunity was to be waived as a list of four

items.’* the court of appeals read it to include only one

item, followed by several examples. Thus, the court stated

that the first sentence of the statute “subjects the Depart-

ment of Energy to ‘any requirement,’ including ‘sanc-

tions.’”” Pet. App. 4a.’* That reading departs from the

statutory text even more than the State’s interpretation.

For, while the State at least recognizes that the statute

contains a list of items as to which sovereign immunity

is weived, the court of appeals, with no support at all

from the statutory text, subordinates all the remaining

items on the list to the first.

In any event, the phrase “all * * * requirements” is

most naturally read to refer to regulations that govern

1 This Court has remarked that the rule “that a word is known

by the company it keeps, while not an inescapable rule, is often

wisely applied where a word is capable of many meanings in

order to avoid the giving of unintended breadth to the acts of

Congress.” Jarecki v. G.D. Searle & Co., 367 U.S. 3038, 307 (1961).

12 On brief in the court of appeals, the State relied entirely on

the “process and sanctions” clause of Section 313, not the “require-

ments” clause. Ohio C.A. Br. 18-25.

'SThe court later similarly asserted that the term “all re-

quirements” includes “process and sanctions.” Pet. App. 6a. Oddly,

the court found that the same language——“all * * * requirements”.

in the corresponding RCRA provision does not waive federal im-

munity from civil penalties. See Pet. App. 9a-12a.

the primary conduct of those who operate federal facili-

ties, not to civil or criminal penalties or punishments to

be imposed when the federal facilities cannot or do not

comply with those requirements.'* Obviously, the payment

of penaities is not an optional form of compliance with

the statute’s “requirements.” (Indeed, if it were, such

payments would presumably also bar injunctive relief

against non-compliance with the statute’s “require-

ments.”) The statute’s purpose and intended effect are

to improve the environment, not to produce revenue.

This interpretation is in full accord with the history of

the federal facilities provision. In EPA v. California, 426

U.S. at 227, the issue was whether the version of the

CWA then in force required federal facilities to obtain

state permits and comply with their requirements."* The

Court held that, although the provision indeed subjected

federal facilities to “substantive” requirements limiting

emission of pollutants, the provision did not contain clear

and unambieuous language subjecting those agencies to

the “procedural” requirement that they obtain state per-

mits before they be permitted to discharge wastes.’®

14 See Mitzelfelt Vv. Department of Air Force, 903 F.2d at 1295

(interpreting RCRA); California v. Walters, 751 F.2d 977, 978

(9th Cir. 1984) (same).

15In the companion case of Hancock v. Train, 426 U.S. 167

(197€), the Court addressed similar issues with respect to the

Clean Air Act.

16 Prior to the 1977 amendments, the federal facilities provision

provided in relevant part:

Each department, agency, or instrumentality of the execu-

tive, legislative, and judicial branches of the Federal Govern-

ment * * * shall comply with Federal, State, interstate, and

local requirements respecting control and abatement of pollu-

tion to the same extent that any person is subject to such

requirements, including the payment of reasonable service

charges.

33 U.S.C. 1323 (1976).

In the course of generally revising the statute in 1977,

Congress amended the federal facilities provision in re-

sponse to EPA vy. California. The legislative history of

that amendment is sparse. As originally passed by the

Senate, the bill altered the provision to provide that fed-

eral facilities “be subject to, and comply with, all Fed-

eral, State, interstate, and local requirements, both sub-

stantive and procedural (including any requirement for

permits or reporting or any provisions for injunctive re-

lief and such sanctions as may be imposed by a court to

enforce such relief).” '' 4 Leg. Hist. 609. The Conference

Committee substituted the language that ultimately was

enacted for that of the Senate bill, reporting that its pro

vision “is essentially the same as the Senate amendment

revised to conform with a comparable provision in the -

Clean Air Act.” H.R. Conf. Rep. No. 830, 95th Cong.,

Ist Sess. 104 (1977), reprinted in 3 Leg. Hist. 277. None

theless, the Conference Committee did not adopt the Clean

Air Act language intact; the “arising under Federal

law” proviso was not in the corresponding Clean Air Act

amendment. See Pub. L. No. 95-95, Tit. I, § 116, 91 Stat.

711, codified at 42 U.S.C. 7418(a).

The 1977 amendinent made two kinds of changes.

First, Congress directly addressed the holding of EPA v.

California concerning the only issue in that case—state

permit requirements. Congress did so by adding the term

“all” (ef. Hancock v. Train, 426 U.S. at 182), as well as

language making clear that the waiver extended “to any

requirement whether substantive or procedural (includ-

ing any recordkeening or reporting requirement, any re-

quirements respecting permits and any other requirement

whatsoever).” Cf. Hancock v. Train, 426 U.S. at 183. In

thus clarifying the scope of the term “requirements,”

17The House bill contained no comparable amendment. See

H.R. 3199, 95th Cong., 2d Sess. (1977), H.R. Rep. No. 370, 95th

Cong., Ist Sess. (1977), reprinted in 4 Legislative History of the

Clean Water Act of 1977, at 555-632 (1978) [hereinafter Leg.

Hist.}.

Congress certainly intended to render the result in EPA

v. California obsolete. There is no reason, however, to

believe that, in modifying the language concerning “re-

quirements,” Congress intended to address any issue con-

cerning remedies generally, or civil (or criminal) penal-

ties in particular.”

Second, Congress broadened the waiver in two other

respects subjecting federal facilities to federal and state

“administrative authority” and “process and sanctions.”

The addition of “administrative authority” makes clear

that federal facilities are not only subject to state permit

requirements, but also to incidental and related admin-

istrative requirements of state agencies. More to the

point for present purposes, subjecting federal facilities to

permit requirements of all sorts raised the question of

how the limitations in those permits were to be enforced.

Congress answered that question by providing for pro-

spective enforcement through federal and state injunc-

tive relief and sanctions to enforce such relief—‘“process

and sanctions.” There is nothing in this language to sug-

gest that Congress intended to take the dramatic further

step of subjecting the federal government generally to

civil—and perhaps criminal—penalties. Cf. California v.

Walters, 751 F.2d 977 (9th Cir. 1984).

2. Even if Section 313 had included a general waiver

of federal immunity from civil penalties, any assessment

1*The Senate Committee report addressing the original lan-

guage of the Senate bill, explained that “all Federal facilities

must comply with all substantive and procedural requirements of

Federal, State. or local water pollution control laws” and that

federal facilities are subject “to any Federal, State, and local

requirement.” 4 Leg. Hist. 700. Nothing in this report, which in

any event was not addressed to the language in the bill as enacted,

suggests that the Senate intended to modify the law as to any-

thing other than substantive requirements—i.¢., limitations on

discharge of pollutants—and procedural requirements—i.¢., report-

ing and permit requirements—-as understood by this Court in

EPA vy. California. There is no mention of penal measures, such

as civil or criminal penalties.

of civil penalties against the federal government under

that Section would have to comply with its express pro-

viso that “the United States shall be liable only for those

civil penalties arising under Federal law.” In this case,

the State of Ohio relied on a state statute, Ohio Rev.

Code § 6111.09 (Anderson Supp. 1987), as authority for

imposition of civil penalties on the United States payable

to the state treasury. Because civil penalties assessed un-

der Ohio Rev. Code § 6111.09 do not in any sense arise

under federal law, such penalties cannot be assessed

against a federal agency.*’

In adding the proviso to Section 313(a) that the

United States is subject only to civil penalties “arising

under Federal law,” Congress chose language with a well-

established legal meaning. Most notably, that language is

familiar in the jurisprudence surrounding the general

statutory grant of jurisdiction to the district courts over

cases “arising under the * * * laws * * * of the United

States.” 28 U.S.C. 1331. Two formulations have de-

veloped to construe that statutory language.*' First, as

' If state civil penalties are barred by the proviso, the question

remains whether the federal facilities provision waives federal

sovercign immunity from federal civil penalties assessed pursuant

to the CWA’s own civil penalties provision, § 309(d), 33 U.S.C.

1319(d). As we point out below, the CWA does not include the

United States as a “person” against whom such penalties may

generally be assessed. See p. 32, infra. Furthermore, as discussed

below, nothing in the CWA’s citizen suit provision alters that con-

clusion. See pp. 31-32, infra.

“The court of appeals relied on the proviso’s apparent pre-

supposition that some ofher language in the statute waives sov-

ereign immunity from civil penalties in holding that the “process

and sanctions” language accomplishes such a waiver. Pet. App. 6a.

Yet the proviso is at most a limitation on a waiver and not a waiver

itself. As such, the proviso could not provide the kind of clear and

unambiguous language that is otherwise absent from Section 313(a).

“! As this Court has made clear, the same terms in Article III

of the Constitution are given a substantially broader meaning.

See Verlinden BV. v. Central Bonk of Nigeria, 461 U.S. 480, 494-

this Court has stated, “[a] suit arises under the law that

creates the cause of action.” American Well Works Co.

v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). Under

the same principles, a remedy arises under the law that

creates the entitlement to the remedy and the standards

governing its incidence. Second, Smith v. Kansas City

Title & Trust Co., 255 U.S. 180, 199 (1921), applied a

somewhat looser formulation. holding that “where it ap-

pears from the bill or statement of the plaintiff that the

right to relief depends upon the construction or applica-

tion of the Constitution or laws of the United States, and

that such federal claim * * * rests upon a reasonable

foundation,” the case arises under federal law. See gen-

erally Merrell Dow Pharmaceuticals, Inc. Vv. Thompson,

478 ".S. 804, 808 . 1986).

Under either .~. mulation. civil pena'ties assessed under

Ohio Rev. Code £ 6111.09 arise under state. not federal,

law. The Ohio legislature. not the United States Con-

gress, enacted Ohio Rev. Code § 6111.09. That statute—

and not any provision of federal law—determines the cir-

eumstances urder which the penalties are to be assessed,

identifies to whom the pena'ties are to be paid. and sets

the amount of the penalty. The Ohio statute would ap-

ply ex proprio vigore to govern penalties for discharges

of pollutants within the State, regardless of the provi-

sions of the CWA. Finally. in assessing a civil penalty

under Ohio law, a court need not construe or apply any

provision of federal law.**

495 (1983): Romero v. International Terminal Onerating Co.,

358 U.S. 354, 379 (1959). There is no reason to believe that Con-

gress intended to refer to the constitutional meaning of those

words when it added the proviso to Section 313(a).

22 The State’s own jurisdictional allegations in this case buttress

the conclusion that the state civil penalties sought do not arise

under federal law. For example, the complaint sought an order

that the United States shall “pursuant to Ohio Revised Code Sec-

tion 6111.09 * * * pay into the [Ohio] treasury a civil penalty

for each violation of Ohio Revised Code Chapter 6111.” J.A. 42.

Moreover, the section of the complaint entitled “Jurisdiction”

To be sure, Ohio has apparently chosen to borrow fed-

eral standards to govern some issues that arise in assess-

ing civil penalties under Section 6111.09. See, e.g., State

Vv. Dayton Malleable, Inc., 1 Ohio St. 3d 151, 438 N.E.2d

120 (1982) (using EPA’s civil penalty policy to decide

upon size of civil penalty under state law); State v.

Howard, 3 Ohio App. 3d 189, 444 N.E.2d 469 (1981)

(same). A federal court applying Section 6111.09 would

thus naturally refer to federal law—as adopted by Ohio

law—in some circumstances. But the fact that Ohio has

chosen to refer to federal law to resolve some state-law

issues does not transform those state-law issues into fed-

eral questions, much less transform the civil penalty rem-

ely of Section 6111.09 into one arising under federal

law.** See Merrell Dow Pharmaceuticals, 478 U.S. at 813

& n.11. Moreover, many issues would certainly be re-

colved in substantially different ways under state or fed-

eral law. Perhaps the most obvious example is that the

maximum federal penalty permitted under CWA Section

309 ‘d), 33 U.S.C. 1219/d), is $25,000 per day for each

violation; the maximum penalty under Ohio Rev. Code

£ 6111.09 is $10,000.

alleged that “[t|he Court has pendent jurisdiction over the claims

asserted under the laws of the State of Ohio.” J.A. 5. See also

Ohio C.A. Br. 26 (Water pollution counts in the complaint “con-

tain pendent state claims for civil penalties under Ohio Revised

Code Section 6111.09."). By invoking pendent jurisdiction for its

state-law penalty claims, the State indicated its belief that there

may have been no independent basis for federal jurisdiction over

such claims-—i.¢., unlike the claims for federal civil penalties,

they do not arise under federal law.

2% Similarly, the Federal Assimilative Crimes Act, 18 U.S.C. 13,

adopts state criminal law for certain crimes committed within

the special maritime and territorial jurisdiction of the United

States, see 18 U.S.C. 7. As this Court held in Pverto Rico v.

Shell Co,, 302 U.S. 253, 266 (1937), “[pjrosecutions under [the

Act! are not to enforce the laws of the state, territory or dis-

trict, but to enforce the federal law, the details of which, instead

of being recited, are adopted by reference.” Accord United States

Vv. Press Publishing Co., 219 U.S. 1, 9-10 (1911).

In reaching its conclusion that civil penalties under

Ohio Rev. Code § 6111.09 “arise under” federal law, the

court of appeals relied heavily on the fact that state per-

mit programs must be reviewed and approved by EPA in

accordance with federal minimum standards before they

are allowed to supplant the EPA permit program. Pet.

App. 6a-8a. But, just as state reference to certain_as-

pects of federal law does not convert state-law issues into

federal ones, federal approval of the state civil penalty

scheme does not convert civil penalties assessed under that

scheme into penalties that arise under federal law. Con-

gress, for example. could rescind or modify federal ap-

proval of the state scheme, but it could not amend any

provision of the state scheme; that is the province of the

state legislature.

This Court’s decision in Gully v. First Nat'l Bank, 299

U.S. 109 (1936), esiablishes that mere federal approval

of a state law does not transform cases arising under

that law into cases arising under federal law. In Gully,

a state tax collector sued to collect state taxes on the stock

of a national bank. The State, however, had authority to

collect such taxes only if authorized to do so by a federal

statute. Jd. at 112. This Court, in a unanimous opinion

written by Justice Cardozo, held that the suit arose under

state, not federal, law. Because “the right to be estab-

lished [was] one created by the State,” it was “unimpor-

tant that federal consent [was] the source of state au-

thority.” Jd. at 116.

The Court’s conclusion in Gully applies a fortiori to

this case. The right to civil penalties under Ohio Rev.

Code § 6111.09, like the right to collect the tax at issue in

Gully, is created by state law and applies ex proprio

vigore. The conclusion therefore follows that the right to

civil penalties arises under state, not federal, law. The

only significant difference between the cases is that in

Gully the state statute could not be enforced unless au-

thorized by federal law, whereas in this case there is no

doubt that the Ohio water pollution regulatory program,

including its provision for civil penalties, would apply

regardless of whether it received EPA approval. Yet that

difference suggests that federal law plays an even smaller

role in this case than in Gully. The only effect of EPA

approval is to eliminate the need for Ohio entities to ob-

tain federal, as well as state, permits; that effect merely

demonstrates that Congress chose to reduce—not expand

—the role of federal law where the state-law enforcement

scheme is adequate.

Moreover, the CWA itself confirms that the Admin-

istrator’s approval of: the state law program does not

create federal law. The CWA’s declaration of goals and

policy recognizes that the “primary responsibilities and

rights * * * to prevent, reduce, and eliminate pollution”

rest on the States. §101(b), 33 U.S.C. 1251(b). Ac-

cordingly, the statute provides that a federally approved

state program is to be operated by the State under state

law. not federal law. For example, before a State can

obtain authority to issue permits in place of EPA, Sec-

tion 402(b) of the CWA requires that the State “submit

to the Administrator a full and complete description of

the program it proposes to establish and administer vn-

der State law.” 33 U.S.C. 1342(b) (emphasis added).

Any State wishing to run its own permit program is

required to demonstrate to EPA “that the laws of such

state * * * provide adequate authority to carry out the

desired program.” Jbid. (emphasis added). What is state

law before approval remains state law after approval.

See California v. Department of the Navy, 845 F.2d 222

at 225; McClellan Ecoloaical Seepage Situation (MESS)

Vv. Weinberger, 655 F. Supp. 601, 604-605 (E.D. Cal.

1986),

The legislative history is equally clear that an EPA-

approved state program is operated under state law. For

example, Congressman Wright, one of the managers of

the 1972 amendments, explained during the House floor

debate on the 1972 conference bill that

(i]f the Administrator determines that a State has

the authority to issue permits consistent with the

act, he shail approve the submitted program. In that

event, the States, under State law, could issue State

discharge permits. These would be State, not Fed-

eral actions * * *, :

118 Cong. Rec. 33,761 (1972) (emphasis added). Simi-

larly, the Conference Report on the 1977 amendments em-

phasized that state permits are issued “under state law,”

and that state permit programs are “not a delegation of

federal authority.” In explaining a state’s permitting

authority under Section 404 of the Act, the conference re-

port explains: -

The conferees wish to emphasize that such a State

program is one which is established under State law

and which functions in lieu of the Federal program.

It is not a delegation of federal authority. This is

a point which has been widely misunderstood with

regard to the permit program under section 402 of

the Act. That section, after which the Conference

substitute concerning State programs for the dis-

charge of dredged or fill material is modeled, also

provides for State programs which function in lieu

of the Federal program and does not involve a dele-

gation of Federal authority.

H.R. Conf. Rep. No. 830, 95th Cong., Ist Sess. 101 (1977)"

reprinted in 3 Leg. Hist. 288; accord, 3 Leg. Hist, 360

(remarks of Rep. Wright) (‘emphasis supplied).*'

24 EPA’s implementing regulations governing the approval of

state NPDES permit programs are in accord. For example, EPA’s

regulations require the state to “submit a description of the pro-

gram it proposes to administer in lieu of the federal program

under State law.” 40 C.F.R. 123.22 (1985) (emphasis added).

III. THE CWA CITIZEN SUIT PROVISION DOES NOT

WAIVE FEDERAL SOVEREIGN IMMUNITY FROM

ASSESSMENT OF CWA CIVIL PENALTIES

The State contended below that, even if the CWA fed-

eral facilities provision does not waive federal sovereign

immunity from assessment of civil penalties, the CWA

citizen suit provision does.2*° The citizen suit provision,

CWA §505(a), 33 U.S.C. 1365(ai, provides that “any

citizen may commence a civil action on his own behalf

“ *" * against any person (including * * * the United

States *~ * * )” and that the district courts in such ac-

tions “shall have jurisdiction * * * to enforce” federal or

state NPDES permits and orders of federal or state ad-

ministrative agencies “and to apply any appropriate civil

penalties under [the CWA civi! penalties provision,

8 309(d), 33 U.S.C. 1319(d)1.” See generally waltney

of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc..

484 U.S. 49 (1988). The State arcues that, by including

the federal government among the entities that are sub-

ject to citizen suits, Congress not only made the federal

government a proper party defendant in a citizen suit.

but also waived federal sovereign immunity from assess-

ment of civil penalties in such suits.

The State’s argument misapprehends the relationship

between the CWA citizen suit and civil penalties provi-

sions, Congress could have written the citizen suit pro-

vision to contain its own civil penalties scheme, complete

with standards governing imposition and payment of

such penalties in citizen suits. Congress, however, chose

*°The court of appeals did not address this issue, see Pet. 11

n.6, although it did address the closely related question whether

the citizen suit provision of RCRA waived federal sovereign im-

munity from civil penalties. See pp. 40-44, infra. In the only

appellate decision that has addressed the question, the Tenth Cir-

cuit recently agreed with the State’s argument. Sierra Club v.

Lujan, 931 F.2d 1421 (1991).

not to do so.*" Instead, the text of the citizen suit provi-

sion specifies that the general civil penalties provision,

with all of its incidents, applies in citizen suits: such

civil penalties as are “appropriate” under the civil pen-

alty provision may be imposed in citizen suits. By qual-

ifying a court’s authority to award civil penalties with

the word “appropriate,” Congress plainly intended to

limit the applicability of such penalties, not to expand the

number of entitites otherwise subject to them.”

The United States is not subject to civil penalties under

the CWA civil penalty provision. Section 309(d) of the

CWA provides that “{a]ny person who violates [an

NPDES permit] shall be subject to a civil penalty not to

exceed $25,000 per day for each violation.” 33 U.S.C.

1319(d). The term “person” is defined in the statute to

include a number of different entities—‘“an individual,

corporation, partnership, association, State, municipality,

commission, or political subdivision of a State, or any

interstate body,” CWA § 502(5), 33 U.S.C. 1362(5)—a

list that pointedly does not include the federal govern-

ment. Since the United States is not a “person” for pur-

poses of the civi! penalties provision, it is never “appro-

priate” to assess civil penalties against the United States

under CWA Section 309(d). Therefore, although the

citizen suit provision plainly authorizes civi] penalties

26 Indeed, as Judge Guy pointed out in dissenting from the

court of appeals’ ruling on the corresponding RCRA citizen suit

provision, Congress chose the wrong provision in which to insert

the words “including the United States” if it intended to waive

sovereign immunity from civil penalties. See Pet. App. 26a. Had

Congress added similar language to the civil penalties provision,

Congress would have made clear that the United States was

subject to such penalties.

27 Both the citizen suit and civil penalty provisions were last

modified in wavs relevant to this issue in 1972. Pub. L. No.

92-500, § 2, 86 Stat. 860, 888. The legislative history gives no indica-

tion that Congress considered whether civil penalties could be as-

sessed against the federal government.

where “appropriate” —i.e., against parties subject to them

who meet the other requirements for such penalties—it

equally plainly prohibits such penalties where not “ap-

propriate”’—i.e., against federal defendants.

ven if the language of the statute were less clear, the

State’s argument would still be meritless. Initially, it

would have been illogical for Congress to refrain from

waiving federal sovereign immunity from civil penalties

in the federal] facilities provision of the Act—the pro-

vision specifically addressing the extent to which the fed-

eral government is subject to the CWA—but then to

undo the limitations of its carefully crafted waiver of

sovereign immunity so long as the enforcement action is

brought by “any citizen.” Under our view, the federal

facilities provision and the citizen suit provision logi-

cally coexist. Both provisions permit suits against the

federal government for prospective, injunctive relief, and

neither authorizes suits against the federal government

for retrospective, penal relief.

In addition, the civil penalties available under the citi-

zen suit provision in a suit against any entity—state,

local, or private—are those assessed under the CWA’s

civil penalty provisions; therefore, they are necessarily

federal civil penalties payable to the federal treasury. See

Gwaltney, 484 U.S. at 53. The civil penalties that the

State seeks would consequently simply be transferred

from one account in the federal Treasury to another;

surely it should not be assumed absent some more explicit

statement that Congress thus intended such a shift in

funds amongst Treasury accounts through a procedure

outside congressional control.**

**[n 1979, the Department of Justice sought a ruling from the

Comptroller General as to whether federal civil penalties under an

analogous provision of the Clean Air Act would be payable from

the permanent indefinite appropriation available for satisfaction

of judgments against the federal government (see 28 U.S.C.

2414; 31 U.S.C. 724a (Supp. II 1978)) or from appropriations

available to the defendant agency. The Comptroller General de-

IV. THE RCRA FEDERAL FACILITIES PROVISION

DOES NOT WAIVE FEDERAL SOVEREIGN IM-

MUNITY FROM ASSESSMENT OF CIVIL PENAL-

TIES

Like every other appellate court that has considered the

issue, the court of appeals correctly rejected the State’s

argument that the RCRA federal facilities provision

waives federal immunity from assessment of civil pen-

alties for hazardous waste disposal violations.** That

conclusion follows from the language of RCRA Section

6001, which differs from the language of CWA Section

313(a) in making explicit that the “sanctions” as to

which immunity is waived are those necessary to enforce

injunctive relief.

The federal facilities provision of RCRA provides that

the federal government and its agencies

shall be subject to, and comply with, all Federal,

State, interstate, and local requirements, both sub-

stantive and procedural (including any requirement

for permits or reporting or any provisions for in-

junctive relief and such sanctions as may be im-

posed by a court to enforce such relief) * * * in the

termined that the source of funds depends on whether the agency

contests its liability for the penalty (in which case payment could

come from the judgment fund) or concedes such liability (in

which case the payment must come from program funds). 58

Comp Gen. 667 (1979).

29 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). Accord McClellan Ecological Seepage Situation

(MESS) vy. Weinberger, 655 F. Supp. 601 (E.D. Cal. 1986) ; Meyer

v. United States Coast Guard, 644 F. Supp. 221 (E.D.N.C. 1986).

Cf. California vy. Walters, 751 F.2d 977 (9th Cir. 1984) (criminal

penalties). But see Maine v. Department of the Navy, 702 F. Supp.

322 (D. Me. 1988), appeal pending, No. 91-1064 (1st Cir.). Cf.

Alabama vy. Veterans Administration, 648 F. Supp. 1208, 1210-

1211 (M.D. Ala. 1986) (interpreting federal facilities provision

of Clean Air Act).

same manner, and to the same extent, as any per-

son is subject to such requirements, including the

payment of reasonable service charges. Neither the

United States, nor any agent, employee, or officer

thereof, shall be immune or exempt from any process

or sanction of any State or Federal Court with re-

spect to the enforcement of any such injunctive

relief.

42 U.S.C. 6961. That language cannot be construed to

waive federal sovereign immunity from civil penalties.

1. First, the term “sanctions’”—which the State has

argued is the crucial term waiving sovereign immunity

from civil penalties in the parallel provision of the CWA

—cannot be construed as used in the above provision to

include civil penalties. In its first appearance, it includes

only sanctions imposed to secure compliance with in-

junctive relief—“such sanctions as may be imposed by

a court to enforce such [i.e., injunctive] relief.” The

term “sanction” appears once more, but this time too it

is qualified with a phrase expressly limiting it to sanc-

tions necessary to enforce injunctive relief—‘“process or

sanction with respect to the enforcement of any such in-

junctive relief.” Thus, Congress in RCRA employed the

very term (“sanction”) that the State has strenuously

argued—in the context of the CWA—should be inter-

preted to refer to civil penalties. Yet, the statutory lan-

guage here makes clear that it does not refer to civil

penalties.*”

Nor does Congress’s use of the term “all * * * require-

ments” operate to waive sovereign immunity from civil

* As the court of appeals observed, “the specific mention of

injunctive sanctions appears to omit penalties too neatly to be

an accident.” Pet. App. 12a. Cf. California v. Walters, 751 F.2d

at 978 (“Section 6961 plainly waives immunity to sanctions im-

posed to enforce injunctive relief, but this only makes more con-

spicuous its failure to waive immunity to criminal sanctions.”).

penalties." As used in the above provision, “all * * *

requirements” is a general term followed by specific

exemplars: permit and reporting requirements, and in-

junctive relief and sanctions to enforce such relief, Noth-

ing in the language of the statute suggests that the gen-

eral term should be read to extend the waiver of sover-

eign immunity to an entirely new category—federal and

state civil penalties or other penal measures.

2. The legislative history of the RCRA federal facili-

ties provision supports the conclusion that Congress did

not intend to waive federal sovereign immunity from

civil penalties.

Section 6001 was enacted by the 94th Congress in 1976

and has remained unchanged since that time. As re-

ported by committee, the House bill, H.R. 14496, 94th

Cong., 2d Sess. (1976), had separate provisions for

solid waste and hazardous waste. It required EPA to

promulgate regulations governing disposal of solid waste

by federal agencies and provided that EPA could sue for

injunctive relief or civil penalties for violation of those

reculations. H.R. 14496, $$ 601(a)(1) and (3); see

H.R. Rep. No. 1491, 94th Cong., 2d Sess. 66-67 (1976).

As to hazardous wastes, the bill generally provided that

EPA could sue any “person” who was in violation of

hazardous waste regulations to be promulgated by EPA

for injunctive relief and civil penalties. § 308(a!. The

federal facilities provision waived federal sovereign im-

munity as to such suits-——including the remedy of civil

penalties—by providing that, for purposes of the haz-

ardous waste enforcement provisions, “the term ‘person’

includes any department, agency, or instrumentality of

the United States.” £$601(b); see H.R. Rep. No. 1491,

supra, at 66-67.

*! Indeed, as the court of appeals pointed out (Pet. App. lla),

if the term “all * * * requirements” included civil penalties and

other sanctions, the discussion of sanctions in both this provision

and in the analogous CWA provision would be superfluous.

The language ultimately adopted as RCRA Section

6001 originated as Section 223 of S. 3622, 94th Cong.,

2d Sess., which was passed by the Senate on June 30,

1976. 122 Cong. Rec. 21,429. There was no comment

in floor debate addressing federal facility compliance. The

committee report did not mention civil penalties; it

merely paraphrased the language of the bill in stating

that federal agencies were to comply with “requirements”

as if they were private citizens. Although the report did

not cite the then-recent decisions in Hancock v. Train and

EPA Vv. California, it twice noted that the bill mandates

compliance with permits and “specifically any require

ments to obtain permits.” S. Rep. No. 988, 94th Cong.,

2d Sess. 24 (1976); id. at 23. It also mentioned that

Section 223 paralleled the federal facility provisions of

Section 118 of the Clean Air Act, 42 U.S.C. 1857f

(1976), and Section 313 of the Clean Water Act, 33

U.S.C. 1323 (1976)." S. Rep. No. 988, supra, at 24.

provided in relevant part:

Each department, agency, and instrumentality of the execu-

tive, legislative, and judicial branches of the Federal Gov-

ernment (1) having jurisdiction over any property or facility,

or (2) engaged in any activity resulting, or which may result,

in the discharge of air pollutants, shall comply with Federal,

State, interstate, and local requirements respecting control

and abatement of air pollution to the same extent that any

person is subject to such requirements.

Section 313(a) of the Clean Water Act, 33 U.S.C. 1823(a)

(1976), provided in relevant part:

Each department, agency, or instrumentality of the executive,

legislative, and judicial branches of the Federal Government

(1) having jurisdiction over any property or facility, or (2)

engaged in any activity resulting, or which may result, in the

discharge or runoff of pollutants shall comply with Federal,

State, interstate, and local requirements respecting control and

abatement of pollution to the same extent that any person is

subject to such requirements, including the payment of reason-

able service charges.

Neither of those provisions had yet been amended to take

account of Hancock v. Train and EPA Vv. California;

there is therefore little doubt that those provisions did

not at that time authorize civil penalties.

When H.R. 14496 was brought to the House floor, a

substitute version was offered that replaced Section 601

with a Section 6001 incorporating Section 223 of the Sen-

ate bill verbatim. Representative Rooney, the majority

floor manager of H.R. 14496 for the House Interstate

and Foreign Commerce Committee, explained that the

substitute H.R. 14496 adopted the Senate provision on

federal facilities, which “|rjequires Federal facilities to

comply with State and local solid waste plans.” 122

Cong. Rec. 32,631 (1976). Representative Skubitz, the

minority floor manager, explained that federal facilities

“will be subject to State law and regulation.” 122 Cong.

Ree. 32,599 (1976).

Three features of this history are of particular rele-

vance. First, Congress substituted what became Section

6001 for the provision in the original House bill that

would have expressly subjected the federal government to

civil penalties. The House bill would have permitted such

penalties only where assessed under RCRA itself, not

state law, and even then only in suits brought by EPA;

subjecting the federal government to indeterminate civil

penalties imposed under state law would have been a

dramatic step that the House, at that time at least, was

not prepared to take. Cf. Hancock v. Train, 426 U.S. at

178-179. The Senate bill, which ultimately became law,

eliminated even that limited express authorization for

civil penalties against the federal government. In light

of longstanding principles requiring explicit and unam-

biguous waivers of sovereign immunity—principles of

which Congress was certainly aware in light of their

then-recent reaffirmance in Hancock vy. Train and EPA

v. California—the absence of any such express provision

suggests strongly that Congress intended no waiver as to

civil penalties. Cf. United States v. United Mine Work-

ers, 330 U.S. 258, 273 (1947).

Second, one of the purposes of the clear statement rule

regarding waivers of sovereign immunity is to assure

that Congress, rather than a court, has had the oppor-

tunity carefully to consider the wisdom of a particular

waiver.” In this case, the history of the provision of the

Senate bill that ultimately became Section 6001 demon-

strates, if anything, that Congress never thought about

civil penalties. The Senate committee report nowhere dis-

cusses civil penalties against federal agencies or mentions

that federal facilities will be subject to the civil penalties

provision that became Section 3008(g). The floor debates

also are devoid of any reference to the issue.

Third, the Senate report clarifies why the language of

the federal facilities provision was crafted as it was. The

federal facilities provision was intended to track the fed-

eral facilities provisions of the Clean Air and Clean

Water Acts, neither of which at that time could plausibly

“ Indeed, bills are new pending before Congress that would

expressly waive sovereign immunity from civil penalties. Both

H.R. 2194, 102d Cong., Ist Sess., and S. 596, 102d Cong., 2d Sess.,

would add the following after the first sentence of Section 6001:

“The Federal, State, interstate and local substantive and pro-

cedural requirements referred to in this subsection include, but

are not limited to, all administrative orders and all civil and

administrative penalties and fines.” H.R. 2194 passed the House

on June 24, 1991. 137 Cong. Rec. H4887 (daily ed.). In the hear-

ings on H.R. 2194 before a panel of the House Committee on

Armed Services on June 6, 1991, a Department of Energy official

has supported the expansion of Section 6001 to include civil

penalites, so long as a number of changes are made. Those

changes include (a) modifications of the statute to address specific,

wniquely federal problems concerning radioactive wastes - created

largely by weapons programs and (b) a change in the penalty pro-

vision to make clear that penalties collected by a State could be

used only for environmental programs. Statement of Leo P. Duffy,

June 6, 1991. The requirement that waivers of sovereign immunity

be clear and unambiguous assures that Congress has had the op-

portunity to address issues of this sort before a waiver is found.

(Copies of Mr. Duffy's statement have been provided to respondents

and lodged with the Court.)

be read to waive federal sovereign immunity from civil

penalties. Insofar as the language of the provision de-

parted from that of the corresponding Ciean Air and

Clean Water Act provisions, the report explains that the

reason was to subject federal facilities to state permit,

reporting, and similar “procedural” requirements, and

thus avoid application of this Court’s decisions in Han-

cock v. Train and EPA Vv. California to the newly enacted

RCRA. In short, the legislative history confirms that

Congress intended to accomplish certain specific objec-

tives in modifying the language of Section 6001 and gave

no positive consideration to subjecting federal facilities to

state civil penalties and other penal measures.”

V. THE RCRA CITIZEN SUIT PROVISION DOES NOT

WAIVE FEDERAL SOVEREIGN IMMUNITY FROM

ASSESSMENT OF RCRA CIVIL PENALTIES

We argue above that the CWA citizen suit provision,

by including the United States among those entities sub-

ject to suit under the CWA, does not thereby waive fed-

eral sovereign immunity from civil penalties. The same

35 The State has argued (C.A. Br. 39-40) that an isolated sentence

in the conference report for the Superfund Amendments and Re-

authorization Act of 1986 (SARA), as well as a single floor state-

ment in the SARA debates, demonstrate that RCRA Section 6001

waives federal sovereign immunity from civil penalties. See H.R.

Rep. No. 962, 99th Cong., 2d Sess. 242 (1986) (observing that § 120

of SARA, 42 U.S.C. 9620, “clarifies that CERCLA, together with

RCRA, requires Federal facilities to comply with all Federal, State

and local requirements. procedural and substantive, including fees

and penalties”). See also 132 Cong. Rec. 28,430 (1986) (statement

of Sen. Mitchell) (stating that RCRA § 6001, together with

CERCLA § 120, “can leave no doubt that Federal! facilities are sub-

ject to State laws, including State fees and penalties”). SARA did

not amend RCRA Section 6001. The views expressed in a conference

committee report and in a single statement in a floor debate on an

entirely different piece of legislation enacted ten years after RCRA

Section 6001 are not probative of the meaning of Section 6001. See,

e.g., Secretary of the Interior vy. California, 464 U.S. 312, 330-331

n.51 (1984); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foun-

dation, Inc., 484 U.S. at 63 n.4.

conclusion and much of the same reasoning apply to the

RCRA citizen suit provision, § 7002(a), 42 U.S.C. 6972

(a), whose wording and structure are in relevant re-

spects very similar to those of the corresponding CWA

provision.

1. In language similar to the corresponding CWA pro-

vision, the RCRA citizen suit provision provides that

“any person may commence a civil action on his own be-

half * * * against any person (including * * * the United

States)” and that the district courts in such actions

“shall have jurisdiction * * * to enforce” federal or state

permits and orders of federal or state administrative

agencies “and to apply any appropriate civil penalties

under |the RCRA civil penalties provision, § 3008(a)

and ‘g)].” * The court of appeals held that, by including

the federal government among the entities that are sub-

ject to citizen suit, Congress not only made the federal

government a proper party defendant in a citizen suit,

but also waived federal sovereign immunity from assess-

ment of civil penalties in such suits. Pet. App. 12a-l6a.

The court’s conclusion is mistaken. As with the cor-

responding CWA provision, see pp. 31-33, supra, the

RCRA citizen suit provision does not itself set out a

scheme for assessing civil penalties, but instead refers

back to the RCRA civil penalties provision for a deter-

mination of what civil penalties are “appropriate.”

Similarly, as with the corresponding CWA provision, the

RCRA civil penalties provision does not apply to the

United States. Section 3008(g) of RCRA provides that

“lalny person who violates any requirement [of RCRA]

shall be liable to the United States for a civil penalty in

an amount not to exceed $25,000 for each such violation.”

42 U.S.C. 6928\g). RCRA defines the term “person”

even more inclusively than the CWA to include a number

%6 The citizen suit provision authorizes a district court in a citizen

suit to assess civil penalties under 42 U.S.C. 6928(a), as well as

42 U.S.C. 6928(g¢). RCRA Section 3008(a), 42 U.S.C. 6928/a),

authorizes civil penalties in EPA-initiated enforcement actions.

of different entities—‘“an individual, trust, firm, joint

stock company, corporation (including a government cor-

poration), partnership, association, State, municipality,

commission, political subdivision-of a State, or any inter-

state body,” RCRA § 1004115), 42 U.S.C, 6903(15)-—a

list that still does not include the federal government."

Since the United States is not a “person” for purposes of

awarding RCRA civil penalties, it is never “appropriate”

to do so in a RCRA citizen suit.

As with the corresponding CWA provision, other con-

siderations support that conclusion. Initially, it would

have been illogical for Congress to refrain from waiving

federal sovereign immunity from civil penalties in the

federal facilities provision of the Act—the provision spe-

cifically addressing the extent to which the federal gov-

ernment is subject to RCRA—but then to undo the limi-

tations of its carefully-crafted waiver of sovereign im-

munity so long as the enforcement action is brought by

any citizen. See p. 33, supra. Moreover, the RCRA civil

penalties provision expressly provides that one who vio-

lates RCRA is “liable to the United States for a civil!

penalty.” If assessed against the federal government,

RCRA civil penalties would thus simply be transferred

from one account in the federal Treasury to another, and

it should not be assumed absent some more explicit state-

ment that Congress intended to adopt such a measure.

See p. 33, supra.

2. The legislative history of the RCRA citizen suit pro-

vision lends no support to the court of appeals’ conclu-

sion. The citizen suit provision was originally enacted in

1976. Pub. L. No. 94-580, § 2, 90 Stat. 2825. The lan-

guage that included “the United States” among the par-

ties subject to a citizen suit was in the provision as

originally enacted. At that time, however, it provided

only for injunctive relief; in a citizen suit, a district

court had jurisdiction “to enforce [a] regulation or

57 In fact, while the CWA definition of “persen” applies “[e|xcept

as otherwise specifically provided,” 33 U.S.C. 1262, the correspond-

ing RCRA provision omits that qualification.

order.” 42 U.S.C. 6972(a) (1982). In 1984, Congress

amended the statute extensively. The citizen suit provi-

sion was amended to provide, inter alia, that a district

court would have jurisdiction “to apply any appropriate

civil penalties” under the RCRA civil penalties pro-

visions,

Insofar as they address the citizen suit provision, the

conference report, committee reports, and floor debate

are devoid of any mention of the availability of civil

penalties against the United States. See H.R. Conf. Rep.

No, 113, 98th Cong., 2d Sess. 117-118 (1984); H.R. Rep.

No. 198, 98th Cong., Ist Sess. Pt. 1, at 53 (1983); S.

Rep, No, 284, 98th Cong., Ist Sess. 55 (1983). That fact

ought not be surprising, because the amendment had no

particular reference to suits in which the federal gov-

ernment was a defendant; it simply made civil penalties,

where “appropriate,” available in citizen suits against

any entity covered by RCRA. The amendments made no

change to the civil penalty provision or the statute’s defi-

nition of “person” that specified the parties against

whom civil penalties were “appropriate.”

In concluding that the citizen suit provision waived

federal sovereign immunity from civil penalties, the court

of appeals erroneously relied (see Pet. App. 15a) on a

single passage from the Senate committee report on the

bill:

Kither a noncomplying agency |or| the Adminis-

trator, if he fails to act, are subject to the citizen

suit and penalty provisions of section 7002. To assure

that there is no confusion as to this, the amendments

to section 7002 continue to use the current statutory

language to specifically authorize a suit against “any

person, including the United States.”

5. Rep. No. 284, supra, at 44.

Even if that passage were to be given substantial

weight in the analysis, the fact remains that the text of

the citizen suit and civil penalty provisions in the statute

is controlling. That statutory text does not authorize the

award of civil penalties against the United States and

could not be read to provide a clear and unambiguous

waiver of immunity from such penalties. In any event,

however, the passage quoted was not a part of the exten-

sive discussion of the amendments to the citizen suit

provision, but was instead included in a discussion of

what became RCRA Section 3016, 42 U.S.C. 6937. Sec-

tion 3016 has nothing to do with civil penalties, but

rather requires federal facilities to compile and submit

inventories of hazardous waste sites to EPA. The fact

that the above language was buried in a section of the

Senate Committee report dealing with an entirely differ-

ent provision cannot be taken to indicate congressional

intent to waive sovereign immunity from civil penalties,

especially when the legislative history of the citizen suit

provision itself—which was amended at the same time—

contains no indication that such a change was intended.

There is, accordingly, no clear and unambiguous

waiver of sovereign immunity from civil penalties in any

of the statutory provisions at issue.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor General

ROBERT L. KLARQUIST

JACQUES B. GELIN

Attorneys

JULY 1991

APPENDIX

STATUTORY PROVISIONS INVOLVED

1. Sections 313(a) and 505(a) of the Clean Water

Act, 33 U.S.C. 1323(a), 1865(a) provide:

$ 1323. Federal facilities pollution control.

(a) Each department, agency, or instrumentality

of the executive, legislative, and judicial branches of

the Federal Government (1) having jurisdiction over

any property or facility, or (2) engaged in any

activity resulting, or which may result, in the dis-

charge or runoff of pollutants, and each officer,

agent, or employee thereof in the performance of his

official duties, shall be subject to, and comply with,

all Federal, State, interstate, and local requirements,

administrative authority, and process and sanctions

respecting the control and abatement of water pollu-

tion in the same manner, and to the same extent as

any nongovernmental] entity including the payment

of reasonable service charges. The preceding sen-

tence shall apply (A) to any requirement whether

substantive or procedural (including any fecordkeep-

ing or reporting requirement, any requirement re-

specting permits and any other requirement, what-

soever), (B) to the exercise of any Federal, State, or

local administrative authority, and (C) to any proc-

ess and sanction, whether enforced in Federal, State,

or local courts or in any other manner. This sub-

section shall apply notwithstanding any immunity of

such agencies, officers, agents, or employees under

any law or rule of law. Nothing in this section shall

be construed to prevent any department, agency, or

instrumentality of the Federal Government, or any

officer, agent, or employee thereof in the performance

of his official duties, from removing to the appro-

priate Federal district court any proceeding to which

the department, agency, or instrumentality or officer,

(la)

agent, or employee thereof is subject pursuant to

this section, and any such proceeding may be re-

moved in accordance with Section 1441 et seq. of

Title 28. No officer, agent, or employee of the

United States shall be personally liable for any civil

penalty arising from the performance of his official

duties, for which he is not otherwise liable, and the

United States shall be liable only for those civil pen-

alties arising under Federal law or imposed by a

State or local court to enforce an order of the process

of such court. The President may exempt any efflu-

ent source of any department, agency, or instrumen-

tality in the executive branch from compliance with

any such a {sic} requirement if he determines it to

be in the paramount interest of the United States to

do so; except that no exemption may be granted

from the requirements of Section 1316 or 1317 of

this title. No such exemptions shall be granted due

to lack of appropriation unless the President shall

have specifically requested such appropriation as a

part of the budgetary process and the Congress shall

have failed to make available such requested appro-

priation. Any exemption shall be for a period not in

excess of one year, but additional exemptions may be

granted for periods of not to exceed one year upon

the President’s making a new determination. The

President shall report each January to the Congress

all exemptions from the requirements of this section

granted during the preceding calendar year, to-

gether with his reason for granting such exemption.

In addition to any such exemption of a particular

effluent source, the President may, if he determines

it to be in the paramount interest of the United

States to do so, issue regulations exempting from

compliance with the requirements of this section any

weaponry, equipment, aircraft, vessels, vehicles, or

other classes or catergories of property, and access

to such property, which are owned or operated by the

Armed Forces of the United States (including the

Coast Guard) or by the National Guard of any State

and which are uniquely military in nature. The

President shall reconsider the need for such regula-

tions at three-year intervals.

$ 1365. Citizens suits.

(a) Authorization; jurisdiction.

Except as provided in subsection (b) of this sec-

tion and Section 1319(g) (6) of this title, any citi-

zen may commence a Ciiv] action on his own behalf—

(1) against any person (including (i) the

United States, and (ii) any other governmental

instrumentality or agency to the extent per-

mitted by the Eleventh Amendment to the Con-

stitution) who is alleged to be in violation of

(A) an effluent standard or limitation under

this chapter or (B) an order issued by the Ad-

ministrator or a State with respect to such a

standard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to per-

form any act or duty under this chapter which

is not discretionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such an effluent stand-

ard or limitation, or such an order, or to order the

Administrator to perform such act or duty, as the

case may be, and to apply any appropriate civil pen-

alties under Section 1319(d) of this title.

2. Sections 6001 and 7002(a) of RCRA, 42 U.S.C.

6961, 6972(a) provide:

$6961. Application of Federal, State and local law

to Federal facilities.

Each department, agency, and instumentality of

the executive, legislative, and judicial branches of

the Federal Government (1) having jurisdiction over

any solid waste management facility or disposal site,

or (2) engaged in any activity resulting, or which

may result, in the disposal or management of solid

waste or hazardous waste shall be subject to, and

comply with, all Federal, State, interstate, and local

requirements, both substantive and procedural (in-

cluding any requirement for permits or reporting or

any provisions for injunctive relief and such sanc-

tions as may be imposed by a court to enforce such

relief), respecting control and abatement of solid

waste or hazardous waste disposal in the same man-

ner, and to the same extent, as any person is subject

to such requirements, including the payment of rea-

sonable service charges. Neither the United States,

nor any agent, employee, or officer thereof, shall be

immune or exempt from any process or sanction of

any State or Federal Court with respect to the en-

forcement of any such injunctive relief. The Presi-

dent may exempt any solid waste management facil-

ity of any department, agency, or instrumentality in

the executive branch from compliance with such a

requirement if he determines it to be in the para-

mount interest of the United States to do so. No

such exemption shal] be granted due to lack of ap-

propriation unless the President shall have specifi-

cally requested such appropriation as a part of the

budgetary process and the Congress shall have failed

to make available such requested appropriation. Any

exemption shall be for a period not in excess of one

year, but additional exemptions may be granted for

periods in excess of one year, but additional exemp-

tions may be granted for periods not to exceed one

year upon the President’s making a new determina-

tion. The President shall report each January to- the

Congress all exemptions from the requirements of

this section granted during the preceding calendar

year, together with his reason for granting each such

exemption.

$ 6972. Citizen suits

(a) In general

Except as provided in subsection (b) or (c) of

this section, any person may commence a civil ac-

tion on his own behalf—

(1)(A) against any person (including (a)

the United States, and (b) any other govern-

mental instrumentality or ageacy, to the extent

permitted by the Eleventh Amendment to the

Constitution) who is alleged to be in violation

of any permit, standard, regulation, condition,

requirement, prohibition, or order which has be-

come effective pursuant to this chapter; or

(B) against any person, including the United

States and any other governmental instrumen-

tality or agency, to the extent permitted by the

eleventh amendment to the Constitution, and in-

cluding any past or present generator, past or

present transporter, or past or present owner

or operator of a treatment, storage, or disposal]

facility, who has contributed or who is contrib-

uting to the past or present handling, storage,

treatment, transportation, or disposal of any

solid or hazardous waste which may present an

imminent and substantial endangerment to

health or the environment; or

(2) against the Administrator where there is

alleged a failure uf the Administrator to per-

form any act or duty under this chapter which

is not discretionary with the Administrator.

Any action under paragraph (a) (1) of this sub-

section shall be brought in the district court for the

district in which the alleged violation occurred or

the alleged endangerment may occur. Any action

brought under paragraph (a) (2) of this subsection

may be brought in the district court for the district

in which the alleged violation occurred or in the Dis-

trict Court of the District of Columbia. The district

court shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the par-

ties, to enforce the permit, standard, regulation, con-

dition, requirement, prohibition, or order, referred

to in paragraph (1) (A), to restrain any person who

has contributed or who is contributing to the past or

present handling, storage, treatment, transportation,

or disposal of any solid or hazardous waste referred

to in paragraph (1)(B), to order such person to

take such other action as may be necessary, or both,

or to order the Administrator to perform the act or

duty referred to in paragraph (2), uw the case may

be, and to apply any appropriate civil penalties

under section 6928(a) or (g) of this title.

38. Ohio Rev. Code Ann. § 3734.13(C), as amended

1985 Ohio Laws 2295, provides:

§ 3734.13 Enforcement orders; emergency orders;

procedure upon violation.

* nod o ca

violating or has violated this chapter, a rule adopted

thereunder, or a term or condition of a permit is-

sued thereunder, the director may, without prior is-

suance of an order, request in writing that the at-

torney general bring a civil action for appropriate

relief, including a temporary restraining order,

preliminary or permanent injunction, and civil pen-

alties in any court of competent jurisdiction. Such

an action shall have precedence over al] other cases.

The court may impose upon the person a civil pen-

alty of not more than ten thousand dollars for each

day of each violation of this chapter, a rule adopted

thereunder or a term or condition of a permit issued

thereunder, which moneys shall be paid into the

hazardous waste clean-up fund created in Section

3734.28 of the Revised Code.

Any action under this section is a civil action, gov-

. erned by the Rules of Civil Procedure and other

rules of practice and procedure applicable to civil

actions.

. 4. Ohio Rev. Code Ann. § 6111.09 (Anderson Supp.

1987) provides:

$6111.09 Penalty paid to state treasury

Any person who violates Section 6111.07 of the

Revised Code shall pay a civil penalty of not more

. . than ten thousand dollars per day of violation. The

; Attorney General, upon written request by the di-

| rector of environmental protection, shall commence

an action under this section against any person who

violates Section 6111.07 of the Revised Code. Any

action under this section is a civil action, governed

by the Rules of Civil Procedure and other rules of

practice and procedure applicable to civil actions.

® ov. 5. sovernwenr PRINTING OFFICE, 1901 262061 20646

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.