Respondents Brief — United States Department of Energy v. Ohio

Supreme Court brief1991

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FILED

@ 5 SEP 13 1991

Nos. 90-1341 and 90-1517 -DEPIOE OF THE CLERK

IN THE "7

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF ENERGY,

Petitioner,

Vv.

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 RESPONDENT STATE OF OHIO

LEE FISHER

ATTORNEY GENERAL OF OHIO

By: JACK A. VAN KLEY

Assistant Attorney General

Environmental Enforcement Section

30 East Broad Street, 25th Floor

Columbus, Ohio 43266-0410

(614) 466-2766

Counsel of Record for Respondent

'BEST AVAILABLE COPY!”

QUESTIONS PRESENTED

Whether the federal facilities provision of the Clean Water

Act, $313, 33 U.S.C. 1323, waives the sovereign immunity

of the United States from assessment of civil penalties

for violations of state water pollution control laws.

Whether Sections 313 and 505 of the Clean Water Act.

33 U.S.C. 1323 and 1365, waive the sovereign immunity

of the United States from assessment of civil penalties

pursuant to citizen suit for violations of the Clean Water

Act.

Whether the federal facilities provision of the Resource

Conservation and Recovery Act (“RCRA”), $6001, 42

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

States from assessment of civil penalties for violations

of state hazardous waste laws.

Whether Sections 6001 and 7002 of RCRA, 42 USC.

6961 and 6972, waive the sovereign immunity of the

United States from assessment of civil penalties pursuant

to citizen suit for violations of RCRA.

PARTIES TO THE PROCEEDINGS

This case was brought in the district court and litigated

in the court of appeals by the State of Ohio on the relation

of its Attorney General, Anthony J. Celebrezze, Jr. succeeded

by Lee Fisher. The Defendants-Appellants before the court

of appeals were the U.S. Department of Energy and Secretary

of Energy James D. Watkins.

TABLE OF CONTENTS

PAGE

PARTIES TO THE PROCEEDINGS .................. T

ccc ccc cccccccccccce vill

mwwement OF THECAGE .. ww... ccc cee 1

SUMMARY OF ARGUMENT ....................... 4

cect cc ccccccccccccce 7

r Because Pervasive Defiance From Federal

Agencies Has Thwarted Congressional Plans

To Comprehensively Control Hazardous Waste

And Water Pollution, Congress Has Enlisted

The States’ Assistance By Providing Them With

The Enforcement Mechanisms Necessary To

Force Federal Agency Cooperation .......... 7

A. RCRA And The Clean Water Act Establish

Comprehensive Programs To Abate

Dangerous Chemicals And To Purify The

Nation’s Water. All Persons, Including

Federal Agencies, Are Required To Do Their

Share To Safely Handle Their Hazardous

Wastes And To Restore The Usefulness Of

The Water By Controlling Their Own

B. Because Federal Agencies Have Exploited

Sovereign Immunity As A Shield For Their

Pollution Practices, Congress Has Broadly

Removed Sovereign Immunity As A Defense

In The Field Of Pollution Control .......... 4

C. Because This Court In Hancock v. Train

Equated ‘‘Procedura! Requirements” With

“Enforcement Mechanisms,” Congress

Waived Federal Agency Immunity For Civil

Penalties And Other Enforcement

Mechanisms By Subjecting The Agencies

To “All Procedural Requirements.” .......

D. Because Penalties Are Necessary To Deter

INlegal Activity, Congress Found That

Penalties Are An Essential Component Of

Its Comprehensive Programs To Reduce

And Eliminate Pollution ................

E. Because The Department Of Justice

Prohibits The U.S. Environmental Protection

Agency From Suing Sister Federal Agencies

For illegal Activities, The States Must Be

Allowed To Utilize The Civil Penalty

Deterrent Provided By Congress To

Enforce The Law At Federal Facilities .....

The Rules Of Statutory Construction Applicable

To Penal Laws And Waivers Of Sovereign

Immunity Respect The Intent Of Congress,

Rather Than Utilizing An “Especially Rigorous

Application” Of Strict Construction Dependent

On The Invention Of Strained, improbable

Meanings For The Statutes ................

A. When Applying Strict Construction To Penal

Laws And Waivers Of Sovereign Immunity,

The Court Has Drawn Upon The History And

Purpose Of The Legislation To Determine

Legislative Intent ......................

C. Strict Construction Does Not Assign The

Narrowest Possible Meaning To Penal Laws

And Immunity Waivers, Especially Where

These Statutes Are Enacted In Broad,

Sweeping Terms ......................

D. When Applying The Rule Of Strict

Construction, The Court Has Retrained

From Creating Or Enlarging Exceptions To

Penal Laws And Waivers Of immunity

E. Congress is Not Required To Specifically

Spell Out Each And Every Federal Action

Included In A Penal Statute Or immunity

CT deddanedeubanssscededudececes<

F. Contrary To DOE’s Position, The Decisions

Of This Court Do Not Authorize An

“Especially Rigorous Application” Of Strict

Construction To Penalty Waivers .........

il. The Court Of Appeals Below Correctly Held

That Ohio's Civil Penalties Arise Under Federal

Law, Since Ohio’s Water Pollution Prevention

Program and Penalties Originated From The

Clean Water Act ....................... oe

A. As Commonly Used, And As Used In The

Clean Water Act, The Term “Sanctions”

includes Civil Pen...+s ................

B. Because Ohio's Penalties Originate Under,

Are Mandated By, And Are Approved Under

The Clean Water Act, They Are Penalties

“Arising Under Federal Law” As That

Phrase Is Used In The Federal Facilities

ee ee nae ae

IV. The Citizen Suit Provision Of The Clean Water

Act Also Authorizes Civil Penalties Against

Federal Facilities For Violating This Law .....

. 23

V. The Court of Appeals Correctly Held That The

Vi.

Language And Legislative History Of The

RCRA Citizen Suit Provision Express

Congressional Intent To Penalize Federal

Agencies For Illegal Hazardous Waste

I i oe

By Interpreting The RCRA Waiver For State

Hazardous Waste Penalties In A Manner

Inconsistent With The Plain Meaning Of The

Language And By Creating An Exception To

Exempt Penalties From The Broad Waiver

Intended By Congress To Cover All

Enforcement Mechanisms, The Court Of

Appeals Violated This Court's Principles Of

Statutory Construction And Thwarted

Congressional Policy .....................

A. By Admitting That Congress Used The

Words “All Procedural Requirements” To

Waive Immunity For Enforcement

Mechanisms, And Then Ruling That

Procedural Requirements Do Not Include

Enforcement Mechanisms, The Court of

Appeals Violated The Rules Of Statutory

Construction Provided By This Court And

Adopted A Rule Of Law Contrary To This

Court’s Decision In Hancock v. Train .....

B. Because The RCRA Waiver includes All

“Requirements” Without Limitation, And

Because The Common Meaning Of

“Requirements” includes Civil Penalties,

Cc. By Admitting That The Plain Meaning Of

“Requirements” Includes Civil Penalties,

And Then Manufacturing Ambiguity As An

Excuse To Exempt Penalties From That Plain

Meaning, The Court Of Appeals Violated

vil

The Rules Of Statutory Construction

Followed By This Court ................ 45

D. The Post-Enactment Legislative Events

Cited By DOE Confirm Congress’ Original

Intent To Waive Immunity For State

Hazardous Waste Penalties ............. 47

PNY Huh cnmunh danas uusewse d64bcede lice 50

APPENDIX

Excerpt from EPA brief in EPA v. California

vill

TABLE OF AUTHORITIES

CASES PAGE

Adamo Wrecking Co. v. United States,

SD Cae eee ei ccccccciseéesece 28

Alabama v. Seeber, 502 F.2d 1238 (5th Cir. 1974)

vacated, 426 U.S. 932 (1976) .................. 12, 13

Bowen v. City of New York,

a des pecesbsbuceeneey 23, 42

Canadian Aviator v. United States,

Nee ne casen 23, 42

Citronelle-Mobiie v. Gulf Oil Corp.,

591 F.2d 711 (Temp. Emer. Ct. App. 1979),

cert. denied, 444 US. 879 (1979) ................., 34

EPA v. California,

426 U.S. 200 (1976) ...... 4, 12, 13, 14, 15, 35, 43, 44, 50

Ernst & Ernst v. Hochfelder,

. ccsscccdccoene 27

Federal Land Bank v. Bismarck Lumber Co.,

RE a a 43

Girardier v. Webster College, 563 F.2d 1267

PT hies Meee eee deepens canedes awe 28

Goodyear Atomic Corp. v. Miller,

406 US. 174 (19BB) 0. che cece cece 24, 25, 45, 47

Gwaltney of Smithfield v. Chesapeake

Bay Foundation, Inc., 484 U.S. 49 (1987) ........... 28

Hancock v. Train, 426 U.S. 167

a ssees -... 4,6, 11, 12, 13, 14, 15, 35, 41, 43, 44, 50

CASES PAGE

Harrison v. PPG Industries, Inc.,

EN 45

Helvering v. Credit Alliance Corp.,

ee 43

Indian Towing Co. v. United States,

8 23

International Ass'n. of Machinists

v. Central Airlines, 372 U.S. 682 (1963) ......... 33, 34

Kordel v. United States, 335 US. 345 (1948) .......... 23

Kosak y. United States,

465 U.S. 846 (1964) ................ 22, 23, 29, 35, 47

Legal Environmental Assistance Foundation v. Hodel,

586 F. Supp. 1163 (E.D. Tenn. 1984) ............... 18

Lehman v. Nakshian, 453 U.S. 156 (1981) ............ 24

Library of Congress v. Shaw, 478 U.S. 310 (1986) ..... 25

Maine v. Navy, 702 F.Supp. 322 (D. Me. 1988)

app. pending, No. 91-1064 (1st Cir) ............... 46

Mastro Plastics Corp. v. National Labor

Relations Board, 350 U.S. 270 (1956) .............. 20

Metro. Sanitary Dist. Of Greater Chicago v.

United States, 737 F.Supp. 51 (N.D. Ill. 1990) ........ 30

Metropolitan Sanitary Dist. v. U.S. Dept. of Navy,

722 F.Supp. 1565 (N.D. iil. 1989) ............... 28, 30

Middlesex Cty. Sewerage Auth. v. Natiohal

Sea Clammers, 453 U.S. 1 (1981) .................. 15

CASES PAGE

Missouri v. Jenkins, 491 U.S. 274 (1989) ............. 25

Missouri Pac. R.R. v. Ault, 256 U.S. 554 (1921) ...... 24, 25

Mountain States Tel. & Tel. v. Pueblo

of Senta Ana, 472 U.S. 237 (19GB). ccc cece cccces 36

National City Bank of New York v. Republic

of China, 346 U.S. 366 (1966)... ccc ccc cceees 21, 42

Northern Securities Co. v. United States,

ee ee ole ewecees tees 25, 50

Oceanic Steam Navigation Co. v. Stranaham,

le esc aeee sence seseees 15

PC. Pfeiffer Company v. Ford,

RE EE ae ee 43

Philbrook v. Glodgett, 421 U.S. 707 (1975) ........ 20, 42

Quivira Mining Co. v. U.S. EPA,

765 F.2d 126 (10th Cir. 1985),

cert. denied, 474 U.S. 1055 (1966) ...... cc ccccccees 8

Richards v. United States, 369 U.S. 1 (1962) ....... 21, 42

Russello v. United States, 464 U.S. 16 (1983) ......... 48

Sierra Club v. Lujan, 931 F.2d 1421

rE ee ee ee yee cous 28, 37

Sierra Club v. Lujan, 728 F.Supp. 1513

(D. Colo. 1990), aff'd 931 F.2d 1421

ee eee ee bde eal een eee nésede 38

Singleton v. Wulff, 428 U.S. 106 (1976) ............... 36

CASES PAGE

Student Public Interest Research v. Monsanto Co.,

GOO F. Sump. 1474 (O.N.S. 19GB) 6... ccc ccc ccc ces 38

Tennessee Valley Authority v. Hill,

EE ED ee a 48

Tull v. United States, 481 U.S. 412 (1987) ............. 38

United States v. Bramblett, 348 U.S. 503 (1955) ....... 22

United States v. Braverman, 373 U.S. 405 (1963) ...... 21

United States v. Cook, 384 U.S. 25, (1966) ........... 22

United States v. James, 478 U.S. 597 (1986) ....... 22, 29

United States v. ITT Continental Baking Co.,

a 15

United States v. Kubrick, 444 U.S. 111 (1979) ......... 23

United States v. Mississippi Valley Generating Co.,

I ie a 22

United States v. Muniz, 374 U.S. 150 (1963) .......... 23

United States v. Standard Oil Co.,

oe a lg 21

United States v. Turkette, 452 U.S. 576 (1981) ...... 22, 46

United States v. Ward, 448 U.S. 242 (1980) ........... 28

United States v. Yellow Cab Co.,

940 U.S. SES (VGST) wn ccc cece 21, 22, 23, 24, 25, 47

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

ee EE 6 on bo uded bee bweseeeecceccas 34

PAGE

CONSTITUTION

CF Seen. eee eee 34

STATUTES, RULES AND REGULATIONS

RE a 6, 33, 34

CLEAN WATER ACT, 33 U.S.C. 1251 et seq.:

ERG a Fl Re a Pe Per ee 8

el aan ae Cee fs)

ee ons cc eee éeeaveseees 9, 10, 31

ee or at eek Kee eee seh ek MAS Ee 8

a a. inns anes one hwndne ee ees 37

ee i eee eee eee ke wee 37

er es cue en che eeews 37

iene aeanuee 37

SED. ccc aceccccnccesceccevesvess 37

ds oe kkue beeen Keen es 37

ee ka ee ane bees ww eee 37

en ceded nace deonedeaceee a ae

a ee oe ee wee 37

os a nn dn ghg ekesetenneses 31

Re ne eee haeesansunneeeens 31

ne een eee enekeal 31

a i Cece ee i areed eure’ 30

NN ans oh eb scene 31

Ee Te 31

ee ol eee ebehseedeukes 31

EE 31

Ne ee ie ieee eewes 31

CE 31

Ne ee celica hua eee 31

ee tee cenwe 31, 36, 37, 38

ED own cad eens cud en deen ekud aban’ 31

33 U.S.C. 1323 .... 5,6, 10, 26, 27, 28, 29, 34, 35, 36, 38

EN de aaa d a Wale G goo aii eee 9, 36

ee ck a cin Ske ucoecee es 5, 30, 31, 32

aid ot al a a aa ee eee 31

eee ee ce caaseneet 9, 30

I hs oa ho oe re ie eee 32

xiii

PAGE

Te a a aeewaweuia 30

a ct cae we the beeeeee 30, 31

a ee Ce ee bier lee eae 30

es en oe wee eee 30

ie os a 4's 5 be ocd weewee oie 37

a a an all Aa mean aie 37

ee eee ee ee 6, 30, 35, 36, 38

eS ce a wa bee aka 36, 37

I ee abana 36

CODE OF FEDERAL REGULATIONS

es oe ce eeaeeaedéues 32

a a bu eawene 32

ER ee 32, 38

RESOURCE CONSERVATION AND RECOVERY

ACT (RCRA), 42 U.S.C. 6901 et seq:

Ne Oe aa neue i]

es eee eeeenece ese 9,19

Ne ee ee dd Odd ken aeons 4

TT oe eal 9, 38, 42, 45, 47

eee a le eemne 6, 38, 39, 40

EE Ce Meee amen 3, 6, 39, 40

OHIO REVISED CODE

Fg tt a ee 33

a a So eae 32

Ne eee 32, 33

I a eke ek eaten 32

Nee ee ee ae 3, 6, 33, 34, 35

MISCELLANEOUS

Conf. Rep. No. 962, 99th Cong., 2d Sess. (1986) ..... 48

Conf. Rep. No. 1133, 98th Cong., 2d Sess. (1984) .... 39

Conf. Rep. No. 1236, 92d Cong., 2d Sess. (1972) .... 31

XIV

PAGE

H.R. Rep. No. 111, 102d Cong.,

ll ee ee ee 17, 19, 48

H.R. Rep. No. 141, 101st Cong., 1st Sess. (1989) ..... 49

H.R. Rep. No. 294, 95th Cong., 1st Sess.

i oe ee i eee eenatebes suse 10, 28, 44

H.R. Rep. No. 911, 92d Cong.,

NT eg eee kiss 10, 16, 27, 31

H.R. Rep. No. 1060, 100th Cong., 2d Sess. (1988) .... 49

H.R. Rep. No. 1491, 94th Cong.,

EE Ch eve eh bei saws 7, 8, 11, 16, 27, 44

' §. Rep. No. 67, 102d Cong., 1st Sess. (1991) ........ 49

S. Rep. No. 284, 98th Cong., 1st Sess. (1983) .... 39, 40

S. Rep. No. 370, 95th Cong.,

I eee oe cae cous 11, 15, 28, 29, 44

S. Rep. No. 414, 92d Cong., 2d Sess. (1971) ........ 10

S. Rep. No. 988, 94th Cong.,

er ae eld wis oe w8 8,9, 11, 40, 44

122 Cong. Rec. 32,599 (Sept. 27, 1976) ............ 45

132 Cong. Rec. 28,430 (Oct. 3, 1986) .............. 48

Cleanup at Federal Facilities: Hearing On H.R. 765

Before The Subcomm. On Transportation And

Hazardous Materials Of The House Comm. On

Energy And Commerce, 101st Cong.,

DN ee ee wenbae eases 11

PAGE

Rothmel, When Will The Federal Government Waive The

Sovereign Immunity Defense And Dispose Of Its

Violations Properly?, 65 Chi.-Kent L. Rev.

SPE SG UE La Saedee Wehbe ewe es 66060 0eces 19

Ballentine’s Law Dictionary (3rd ed. (1969) ......... 27

Black's Law Dictionary (6th ed. 1990) .......... 27, 28

Webster's New World Dictionary (2d ed. 1978) ...... 29

Webster's Third New International Dictionary

SEN SUT BSc ces doe Kdceneeseccccceves 42

Nos. 90-1341 and 90-1517

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF ENERGY,

Petitioner,

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 RESPONDENT STATE OF OHIO

STATEMENT OF THE CASE

In March of 1986, the State of Ohio filed suit against the

U.S. Department of Energy (“DOE”) for widespread and

longstanding violations of state and federal pollution laws.

For years, DOE had been egregiously violating both the

hazardous waste and water pollution laws. These illegal

activities took place at DOE's Feed Materials Production

Center (“FMPC”), also commonly known as the Fernald

facility, located near Cincinnati.

The Complaint describes thirteen types of hazardous

waste safety standards violated at the FMPC. JA. 14-29,

Counts 3-15. DOE illegally dumped hazardous waste into

a waste pit, allowed hazardous waste to leak from an illegal

drum storage site, and carried on other unlawful hazardous

waste activities. J.A. 8-9, 14-16, Count 3 & Par. 18-23.

Although all hazardous waste facilities have been required

since 1981 to install adequate monitor wells to detect

hazardous waste constituents leaking into the groundwater,

the Complaint recounts that DOE had not yet complied with

this standard five years later. J.A. 19-20, Count 7.

Contamination is believed to be seeping from the illegal

hazardous waste disposal pit. J.A. 17-18, Count 5.

To compound the fact that treatment, storage, and disposal

of hazardous waste at the FMPC was illegal, DOE did not

bother to manage the hazardous waste with even a pretense

of safety. DOE neglected to regularly inspect its hazardous

waste facilities for health hazards (J.A. 24-25, Count 10), to

maintain aisle space between drums of waste for detection

of leakage and for movement of spill and fire fighting

equipment (J.A. 25, Count 11), or to keep an emergency

contingency plan educating workers about safe responses

to fires, explosions, and releases of hazardous waste (J.A.

26, Count 12). DOE failed to perform the waste analyses

necessary for safe storage and disposal (J.A. 28-29, Count

15), to write a proper closure plan (J.A. 20-22, Count 8), and

to teach its workers how to handle hazardous waste safely

(J.A. 27-28, Count 14). In short, DOE widely disregarded the

rules of both the hazardous waste authorities and common

sense.

By the time the State filed its Complaint, DOE had subjected

the Great Miami River and Paddy's Run to illegal

concentrations of hexavalent chromium, total chromium,

copper, iron, ammonia, suspended solids, and oil and grease

for two and one-half years. J.A. 30-33, Count 17. Excessive

contaminants were discharged into the Great Miami for years

as a result of DOE's disdain for the schedule in its permit

requiring the construction and operation of new pollution

abatement equipment by June 30, 1984. J.A. 33-35, Counts

18-23. This pollution continued even after the lawsuit was

filed. Because DOE had fallen so far behind on equipment

installation, the consent decree now requires compliance

by 1990, six years late.'J.A. 70, Par. 4.4, 4.5.

To encourage not only DOE, but other federal agencies

as well, to comply voluntarily, the State requested civil

penalties to address DOE's irresponsible behavior at the

Fernald plant. The State presented civil penalty claims to

the district court pursuant to the citizen suit provision of

the Resource Conservation and Recovery Act (“RCRA”) (42

U.S.C. 6972(a)) and state law (O.R.C. 3734.13(C)) for

hazardous waste violations and the citizen suit provision of

the Clean Water Act (33 U.S.C. 1365(a)) and state law (O.R.C.

6111.09) for water pollution violations. J.A. 14-42.

DOE responded by filing a motion to dismiss, hiding behind

the doctrine of sovereign immunity. The district court rejected

DOE's contentions, finding a clear statement of

Congressional intent to waive immunity from civil penalties

under both federal and state hazardous waste and water

pollution law. The court of appeals affirmed. Though

declining to find a RCRA waiver for state hazardous waste

penalties, the court of appeals did implement the RCRA

waiver for federal hazardous waste penalties and the Clean

Water Act waiver for state water pollution penalties.

in addition to hazardous waste and water pollution violations, the

Complaint also describes the radioactive contamination of air, soil.

streams, and groundwater at and near the FMPC, including several wells

owned by neighbors. J.A. 10, Par. 28. This contamination was caused

by dumping large quantities of waste into six pits, emission of tons

of uranium into the air, leakage of radon from two silos, piling of debris

on the ground, and discharge of wastes into a creek. id. These activities

were the basis for two counts brought pursuant to the Comprehensive

Environmental Response, Compensation, and Liability Act (“CERCLA”).

JA. 11-14, Counts 1-2. Contrary to DOE's statement (Br. 9, n. 8), the

first CERCLA claim was settled by consent decree rather than dismissed

J.A. 64, 76-77. The parties agreed to a stay of the second claim. JA

78, Par. 8.2. Neither count is subject to this appeal.

SUMMARY OF ARGUMENT

|. To comprehensively control dangerous chemical

wastes and to restore beneficial uses to the nation’s waters,

Congress has designed comprehensive pollution control

programs under RCRA and the Clean Water Act. Due to

Congressional concern that noncompliance by more than

twenty thousand federal facilities would thwart these

comprehensive programs, these statutes contain complete

waivers of sovereign immunity to encourage federal

compliance. Although private industry, municipalities, and

States have shouldered their portions of the pollution contro!

burden, federal agencies have chosen to litigate against the

waivers rather than comply. As a result, federal agencies

have contaminated their own facilities, their neighbors’

properties, and the air, soil and water. Environmental cleanup

costs for DOE sites, some of which may be irreversibly

contaminated, could cost taxpayers between $40 billion to

$70 billion during just the next twenty years.

Although Congress entrusted the States with the primary

responsibility to enforce its federal pollution control

programs, federal agencies have defied state efforts to

enforce these laws. In 1976, the federal agencies obtained

decisions in Hancock v. Train, 426 U.S. 167 (1976), and EPA

v. California, 426 U.S. 200 (1976) ruling that federal agencies

did not have to apply for state permits under the Clean Air

Act and the Federal Water Pollution Control Amendments.

The Court held that the waivers in these statutes subjected

federal agencies to substantive requirements but not to

“enforcement mechanisms,” known as “procedural

requirements.” The Court also stated that Congress would

have used the words “all .. . requirements” if a complete

waiver were intended.

Congress reacted sharply to these decisions and to the

continued federal facility pollution, stating that the waivers

in both statutes had been intended as complete waivers.

Relying on Hancock, Congress used both “all” and

“procedural” to provide complete waivers for requirements

in RCRA during 1976 and the Clean Water Act during 1977.

To deter federal agencies from further illegal activities,

Congress authorized civil penalties under both RCRA and

the Clean Water Act. Besides protecting human health and

property, penalties are a cost-effc “ve means to prevent the

Staggering cleanup costs occasio/ied by illegal spillage and

dumping. In the usual situation where the mere threat of

a penalty convinces a facility to comply, the taxpayers pay

for neither a penalty nor a cleanup project.

ll. Well over a decade after the enactments of RCRA and

the Clean Water Act amendments, federal agencies are stil!

litigating instead of complying. DOE is asking this Court to

narrowly interpret the complete waivers in these statutes

by applying an “especially rigorous application” of strict

construction, a proposed standard of statutory construction

contrary to precedent.

lll. The federal facilities section of the Clean Water Act,

33 U.S.C. 1323, waives sovereign immunity for all process

and sanctions. As commonly used by Congress, the

executive branch, and this Court, a “sanction” is any form

of penalty. The use of “sanctions” in Section 313 to include

civil penalties is confirmed by a subsequent sentence, which

provides that the United States is liable only for “civil penalties

arising under Federal law.”

The purpose of the latter phrase is to ensure that federal

agencies are subject only to civil penalties assessed

pursuant to Clean Water Act programs approved by U.S. EPA.

States, municipalities, and local governments may not

penalize federal agencies unless U.S. EPA has authorized

their water pollution programs. Once authorized, a State

implements the Clean Water Act program on behalf of and

in lieu of U.S. EPA. The Clean Water Act provides that

compliance with a state permit is compliance with the Act.

U.S. EPA and citizens can enforce the permit as federal law.

The statute and its legislative history repeatedly refer to

permits issued by a State “under Section 402” of this Act.

The term “arise” means to “originate” or “come into being”.

The Clean Water Act and U.S. EPA's regulations make state

assessment of civil penalties a mandatory requirement for

approval, and continued authorization, of the State's program.

Ohio's civil penalty in O.R.C. 6111.09 was enacted to comply

with this programmatic requirement. U.S. EPA approved

Ohio's penalty provision, and its application to federal

agencies, as part of the State's authorized program.

Contrary to DOE's position, “arising under Federal law”

does not mean conversion into federal law. Therefore, a state

penalty provision is still state law, even though it originates

under or comes into being as a result of the Clean Water

Act.

DOE's attempt to apply caselaw construing federal

question jurisdiction ignores the entirely different purpose

of the Clean Water Act waiver. “[C]ases arising under” in

28 U.S.C. 1331 reflects Congressional intent to protect federal

statutes from interpretation by hostile state courts. “[Clivil

penalties arising under” in 33 U.S.C. 1323 was meant to

provect federal agencies from unapproved penalties while

simultaneously encouraging federal agency compliance with

Congress’ comprehensive pollution control program.

IV-V. Both Sections 313 and 505 of the Clean Water Act

waive immunity for civil penalties imposed pursuant to citizen

suit. Sections 6001 and 7002 of RCRA similarly waive

immunity for citizen suit penalties under that statute. Both

citizen suit provisions define the United States as a “person”,

which in turn is subject to the imposition of “appropriate”

civil penalties pursuant to the penalty sections of these acts.

The use of “appropriate” refers to the judicial discretion to

determine the appropriate size of the penalty, as recognized

in the caselaw and U.S. EPA regulations. The Senate

committee report for RCRA accompanying Section 7002(a)

states that federal agencies are subject to its penalty

provisions.

Vi. To accomplish a complete hazardous waste waiver

after Hancock, Section 6001 of RCRA waives immunity for

“all” requirements. To subject federal agencies to

“enforcement mechanisms” such as state penalties, the

section alsO waives immunity for all “procedural”

requirements. This Congressional intent to authorize

penalties is complemented by the normal meaning of

“requirements,’ which is “something called for or

demanded.” In fact, Congress rejected the federal facilities

section of the House bill, which would have restricted penalty

assessment to U.S. EPA, in favor of a Senate bill waiving

immunity for all federal and state requirements.

DOE's proposes to assign the narrowest possible meaning

to these statutes by attributing strained, improbable

meanings to their terms. The Court should interpret these

Statutes according to their plain meaning and consistent with

the Congressional purpuse to comprehensively control

pollution. Only then wiil federal facilities stop litigating and

start complying.

ARGUMENT

|. Because Pervasive Defiance From Federal

Agencies Has Thwarted Congressional Plans

To Comprehensiveiy Control Hazardous Waste

And Wate: Pollution, Congress Has Enlisted

The States’ Assistance By Providing Them With

The Enforcement Mechanisms Necessary To

Force Federal Agency Cooperation.

A. RCRA And The Clean Water Act Establish

Comprehensive Programs To Abate

Dangerous Chemicals And To Purify The

Nation’s Water. All Persons, Including

Federal Agencies, Are Required To Do

Their Share To Safely Handle Their

Hazardous Wastes And To Restore The

Usefulness Of The Water By Controlling

Their Own Pollution.

When enacting RCRA, Congress was primarily concerned

about the unsafe management and disposal of hazardous

waste. H.R. Rep. No. 1491, 94th Cong., 2d Sess. 3 (1976),

reprinted in 1976 U.S. Code Cong. & Ad. News 6241. Citing

numerous examples of groundwater pollution, fish kills,

wildlife and livestock kills, and human poisonings, the House

found that these wastes can “blind, cripple or kill... defoliate

the environment, contaminate drinking water supplies and

enter the food chain.” H.R. Rep. No. 1491 at 11, 17-23,

reprinted in 1976 U.S. Code Cong. & Ad. News at 6249, 6254-

61. See also, S. Rep. No. 988, 94th Cong., 2d Sess. 3 (1976).

Congress established a comprehensive, nationwide program

to control these dangerous chemical wastes from creation

to ultimate disposal (known as “cradle-to-grave”). S. Rep.

No. 988 at 3; H.R. Rep. No. 1491 at 11, reprinted in 1976

U.S. Code Cong. & Ad. News at 6249.

Congress was particularly concerned about hazardous

waste mismanagement at more than twenty thousand

facilities owned by the federal government. H.R. Rep. No.

1491 at 46, reprinted in 1976 U.S. Code Cong. & Ad. News

at €°84. Because Congress realized that a comprehensive

pre .ould be ineffective without the cooperation of

fe icilities, Congress wanted federal facilities to

“provide national leadership in dealing with solid waste and

hazardous waste disposal problems.” S. Rep. No. 988 at 24.

The Federal Water Pollution Control Act, as amended by

the Clean Water Act (hereinafter both referred to as Clean

Water Act), similarly established a comprehensive system

to protect the public from harmful wastes. The Clean Water

Act has as its objective the restoration of “the chemical,

physical, and biological integrity of the Nation's waters.” 33

U.S.C. 1251(a). Congress intended to restore and protect

these waters to the fullest extent possible under the

Commerce Clause. Quivira Mining Co. v. U.S. EPA, 765 F.2d

126 (10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986).

Therefore, Congress required the U.S. Environmental

Protection Agency ("EPA") to develop “comprehensive

programs for preventing, reducing, or eliminating the

poliution of navigable waters” (emphasis added) in order

to protect the water for fish, aquatic life, wildlife, recreation,

drinking water, agriculture, industry, and other purposes. 33

U.S.C. 1252(a). In fact, the goal of the Clean Water Act was

to eliminate all pollution discharges into navigable waters

by 1985. 33 U.S.C. 1251(a)(1).

Although Congress assigned U.S. EPA the initial task of

formulating comprehensive pollution control programs, the

States were expected to assume the burden of implementing

both the water pollution and hazardous waste programs. 33

U.S.C. 1251(b); 42 U.S.C. 6902(a)(1),(7). This state

implementation was to be accomplished through U.S. EPA's

authorization of States to administer and enforce the

programs. 33 U.S.C. 1342(b); 42 U.S.C. 6926.

The purposes of these comprehensive water pollution and

hazardous waste programs are undermined when only some

polluters responsibly control their wastes. Therefore,

Congress, in an exercise of fairness, assigned a share of

responsibility to all waste producers, including corporations,

individuals, municipalities, counties, states, and federal

agencies. Congress’ intent to make these programs

comprehensive is dramatized by the fact that a federal

agency is excused from compliance only where a

Presidential exemption has been obtained for national

security or other “paramount” national interests and has

been reported to Congress. 33 U.S.C. 1323(a); 42 U.S.C. 6961.

Unfortunately, the federal entities expected to provide

national leadership in these efforts (S. Rep. 988 at 24) have

refused to do their share.

B. Because Federai Agencies Have Exploited

Sovereign Immunity As A Shield For Their

Pollution Practices, Congress Has Broadly

Removed Sovereign Immunity As A Defense

In The Field Of Pollution Control.

While Congress was considering the 1972 water pollution

control amendments, it found that federal agencies had not

been doing their share to abate pollution under the previous

federal water pollution statutes. The Senate described the

problems the nation was having with polluting federal

agencies:

Evidence reviewed in hearings disclosed many

incidents of flagrant violations of air and water

pollution requirements by Federal facilities and

activities. Lack of Federal leadership has been

detrimenta! to the water pollution control effort. The

Federal Government cannot expect private

industry to abate pollution if the Federal

Government continues to pollute.

S. Rep. No. 414, 92d Cong., 2d Sess. 67 (1971), reprinted

in 1972 U.S. Code Cong. & Ad. News 3733-34.

The House noted the same problems:

The Committee, after hearing of numerous

examples of flagrant violation of pollution controls

is determined that the Federal facilities shall be

a model for the nation ....

H.R. Rep. No. 911, 92d Cong., 2d Sess. 188 (1972).

Due to its dissatisfaction with the noncompliance record

of federal facilities, Congress included 33 U.S.C. 1323 in the

1972 amendments. This section waived immunity for state

water pollution laws as well as federal laws. Such a waiver

was essential, since the act gave the States the primary

role in abating water pollution and limited U.S. EPA to a

supervisory role. 33 U.S.C. 1251(b). Federal facilities, then,

could no longer ignore their water pollution control

obligations under either state or federal water law.

However, while considering the Clean Water Act

Amendments of 1977, Congress found that “many federal

agencies continue to try to evade the mandate of Federal

law to comply with all State and local requirements.” H.R.

Rep. No. 294, 95th Cong., 1st Sess. 199 (1977), reprinted

in 1977 U.S. Code Cong. & Ad. News at 1277-78. Furthermore,

these agencies were obtaining court decisions exempting

them from various water pollution requirements, such as

permits, under the guise of sovereign immunity. /d. As a result,

Congress amended 33 U.S.C. 1323 to expressly authorize

sanctions against federal facilities to give them incentive to

comply. S. Rep. No. 370, 95th Cong., 1st Sess. 67-68 (1977),

reprinted in 1977 U.S. Code Cong. & Ad. News 4392-93.

In the meantime, Congress had enacted RCRA in 1976.

Upon hearing of continuing widespread federal disregard

for the previously enacted water and air laws, H. Rep. No.

1491 at 45, reprinted in 1976 U.S. Code Cong. & Ad. News

at 6283-84, the House actually proposed to relieve the States

of the burden of enforcing the hazardous waste program

at federal facilities. H. Rep. No. 1491 at 2466, reprinted in

1976 U.S. Code Cong. & Ad. News at 6262, 6304-05. This

bill, which would have placed the burden solely on U.S. EPA,

id., was later rejected by Congress in favor of the Senate

bill, which imposed the primary enforcement burden on the

States. S. Rep. No. 988 at 23-24. Simultaneously, Congress

waived all immunity from enforcement of state and federal

laws to give federal agencies the incentive to comply.

Unfortunately, even explicit waivers of sovereign immunity

have done little to encourage federal agencies to comply.

According to the Comptroller General in testimony before

a House subcommittee, “inattention and negligence in

complying with environmental laws” has contributed to

“widespread contamination” at DOE facilities, some of which

may be “irreversibly contaminated.” Cleanup at Federal

Facilities: Hearing on H.R. 765 before the Subcomm. on

Transportation and Hazardous Materials of the House Comm.

on Energy and Commerce, 101st Cong., 1st Sess., ser. 4,

at 34, 53 (1989). This contamination has spread off-site at

some facilities. /d. DOE has estimated that cleanup of

hazardous and other wastes at its sites could cost taxpayers

between $40 billion to $70 billion during just the next twenty

years. /d., at 44.

C. Because This Court In Hancock v. Train

Equated “Procedural Requirements” With

“Enforcement Mechanisms,’’ Congress

Waived Federal Agency Immunity For Civil

Penalties And Other Enforcement

Mechanisms By Subjecting The Agencies To

“All Procedural Requirements.”’

Rather than complying with the pollution laws, the federal

agencies have chosen to aggressively litigate against the

laws. This litigation has resulted in a double standard, one

exempting federal agencies from the law, and another

applicable to private industry, states, and other citizens.

State attempts to control federal pollution through permits

ended in federal agency challenges to the waivers of both

the Clean Air Act in Hancock v. Train, 426 U.S. 167 (1976),

and the Federal Water Pollution Control Act in EPA v.

California, 426 U.S. 200 (1976). Narrowly construing the

waivers, the Court ruled that Congress had not waived

immunity for permits and other enforcement mechanisms.

At the time the Caurt considered Hancock and California,

the air and water statutes waived immunity for

“requirements.” At issue in these cases was whether

“requirements” included only substantive obligations, or

whether “requirements” also included procedural

obligations such as the procurement of permits. The Court

held that Congress did not intend to include permits and

other procedural obligations within the meaning of

“requirements”. California, 426 U.S. at 223; Hancock, 426

U.S. at 197-98. The Court's distinction between substantive

and procedural requirements is important, because

Congress had this distinction in mind when writing the

current waivers in RCRA and the Clean Water Act.

Before Hancock, the Court of Appeals for the Fifth Circuit

had phrased the issue in the same fashion, coming to the

opposite conclusion. In Alabama v. Seeber, 502 F.2d 1238

(5th Cir. 1974), the Fifth Circuit distinguished between

substantive duties and enforcernent mechanisms in the

Clean Air Act, as follows:

Defendants seek to avoid the impact of §118 by

engrafting upon it a substantive procedural overlay.

They argue that the phrase “requirements

respecting control and abatement of air pollution”

means only requirements such as emission

standards and limitations, which they iabel

“substantive,” and does not include mechanisms,

e.g., permit systems, for enforcing these

requirements.

(Emphasis added). /d., at 1245. Relying on the wording of

the Clean Air Act waiver, the “scheme of the Act as a whole,”

and “Congressional purpose,” the Fifth Circuit held that

enforcement mechanisms were requirements. /d., at 1245-

47.

Although Seeber was vacated due to the subsequent

decision in Hancock, this Court in Hancock phrased the issue

in the same fashion by quoting from Seeber:

[T]he question is .. . “whether Congress intended

that the enforcement mechanisms of federally

approved state implementation plans, in this case

permit systems, would be” available to the States

to enforce that duty.

426 U.S. at 183 (emphasis added). The Court rejected the

State’s contention that Congress had intended to “subject

federal facilities to the enforcement mechanisms” of State

law (emphasis added). /d., at 184. In holding that enforcement

mechanisms were not “requirements”, the Court repeatedly

distinguished between enforcement mechanisms and

substantive duties. /d., at 182-98. In fact, the Court's opinion

uses “enforcement mechanisms” and derivatives of

“enforce” no fewer than thirty-one times when discussing

“procedural requirements.”

Similarly, EPA v. California referred to water permits as

“a means of achieving and enforcing the effluent limitations.”

426 U.S. at 205. Noting that the air and water act waivers

were “virtually identical” and declaring that California was

“governed by the same fundamental principles” (id., at 211)

as Hancock, the Court held that water permits also were

not “requirements”.

Therefore, just before Congress passed RCRA, the courts

had drawn the distinction between substantive requirements

on one hand, and enforcement mechanisms or procedural

requirements, on the other. The Court also declared that

it was “notable” that Congress required federal agencies

only to comply with “requirements” instead of requiring

compliance with “ail” requirements. 426 U.S. at 182.

Congress reacted sharply to these decisions when it

passed RCRA in 1976 and amended the Clean Air Act and

Federal Water Pollution Control Act in 1977. The House

discovered that federal agencies had been invoking

sovereign immunity to avoid their air pollution control duties,

“including, of necessity, those procedural requirements and

sanctions incidental to implementation and enforcement of

the substantive requirements” which in the committee's view

had been mandatory for federal agencies pursuant to the

previous Clean Air Act waiver. H.R. Rep. No. 294 at 199,

reprinted in 1977 U.S. Code Cong. & Ad. News at 1277-

78. The House then discussed the Hancock decision, stating:

In the committee's view, the language of existing

law should have been sufficient to insure Federal

compliance in all of the aforementioned situations.

Unfortunately, however, the U.S. Supreme Court

construed Section 118 narrowly in Hancock v. Train

.... The new section 113 of the bill is intended

to overturn the Hancock case....

ld. Congress had a similar adverse reaction to the Supreme

Court decision in California, commenting:

The act has been amended to indicate

unequivocally that all Federal facilities and

activities are subject to a// of the provisions of State

and local pollution laws. Though this was the intent

of the Congress in passing the 1972 Federal Water

Pollution Control Act Amendments, the Supreme

Court, encouraged by Federal agencies, has

misconstrued the original intent.

S. Rep. No. 370 at 67, reprinted in 1977 U.S. Code Cong.

& Ad. News at 4392 (emphasis added).

Consistent with its original intent to completely waive

federal immunity in the air and water statutes, Congress

responded to Hancock and California by writing waivers for

both “substantive” and “procedural” requirements into

RCRA, the Clean Water Act, and the Clean Air Act. Because

the existing court decisions had referred to enforcement

mechanisms as “procedural requirements,” Congress used

this terminology to subject federal facilities to all enforcement

mechanisms. Relying heavily on the emphasis in Hancock

on the use of “all” to accomplish a complete waiver, Congress

used “all” to describe the requirements waived by al! three

statutes. Thus, Congress unambiguously effectuated a

complete waiver for polluting federal facilities, including a//

enforcement mechanisms. See also, Middlesex Cty

Sewerage Auth. v. National Sea Clammers, 453 U.S. 1,5 (1981)

(referring to civil and criminal penalties of the Clean Water

Act as “enforcement mechanisms’).

More than a decade after Congress responded to Hancock

and California with comprehensive waivers, federal agencies

have continued to litigate rather than comply. Now DOE

requests that the Court ignore the instructions made to

Congress in Hancock, in order to again frustrate

Congressional intent.

D. Because Penalties Are Necessary To Deter

illegal Activity, Congress Found That Penalties

Are An Essential Component Of Its

Comprehensive Programs To Reduce And

Eliminate Pollution.

The courts have long recognized that civil penalties are

an effective mechanism to enforce the law. United States

v. ITT Continental Baking Co., 420 U.S. 223 (1975); Oceanic

Steam Navigation Co. v. Stranaham, 214 U.S. 320 (1908). A

civil penalty will deter the violator from further illegal activity.

ITT, 420 U.S. at 231-32.

Accordingly, the legislative history of the Clean Water Act

shows that Congress regarded civil penalties and other

sanctions as_ indispensable components of its

comprehensive water pollution abatement program. In fact,

Congress attributed the failure of its pre-1972 water pollution

laws in part to the lack of sanctions for noncompliance. S.

Rep. No. 414 at 64, reprinted in 1972 U.S. Code Cong. &

Ad. News at 3730-31. As the Senate observed, if illegal

conduct is to be prevented, “the threat of sanction must

be real, and enforcement provisions must be swift and direct.”

ld. The U.S. EPA Administrator at the time, William

Ruckelshaus, testified that the penalties in the 1972 House

bill were necessary to make U.S. EPA's authority

“meaningful.” H.R. Rep. No. 911 at 161.

Congress saw a similar need for penalties to deter illegal

hazardous waste activities. During Congress’ consideration

of RCRA in 1976, the Department of Justice endorsed civil

and criminal penalties as necessary to enforce the law. H.R.

Rep. No. 1491 at 83-84, reprinted in 1976 U.S. Code Cong.

& Ad. News at 6321.

Due to the need for enforcement, Congress has generally

provided both criminal and civil penalties to enforce its

environmental statutes, including the Clean Water Act and

RCRA. Furthermore, where a State is authorized to administer

the federal pollution control program under either of these

statutes in lieu of the federal government, it is a mandatory

prerequisite of federal law that these States first enact

criminal and civil penalty provisions to enforce these

programs.

When violators cannot be penalized for past misconduct,

they will violate the law with no fear of punishment unless

and until a !awsuit is filed and an injunction is issued. This

sorry reality was Congress’ motivation for insisting that

penalties be used to encourage voluntary compliance by

all, including federal, polluters.

Pursuant to this authority, the federal government

“routinely” assesses Civil penaities against municipalities and

state agencies for violations of the pollution laws. H.R. Rep.

No. 111, 102d Cong., 1st Sess. 13 (1991). In fact, the federai

government has penalized state agencies and local

governments in 49 of the 50 states. /d.

In contrast, the federal executive branch has waged a

campaign to have the civil penalty provisions of both federal

and state environmental statutes declared inapplicable to

federal facilities. This strenuous effort by federal agencies

shows their distaste for being penalized, which is precisely

why civil penalties are an effective means to finally obtain

their compliance with the law.

Congress’ application of penalties to federal facilities,

besides protecting the health and property of nearby citizens,

is also cost-effective. The infrequent penalties paid to

guarantee compliance are dwarfed by the staggering

cleanup costs occasioned by illegal spillage and dumping.

In the usual situation where the mere threat of a penalty

convinces a facility to comply, the taxpayers pay for neither

a penalty nor a cleanup project. Had federal agencies not

been complacent in their ability to persuade the courts to

void Congressional penalty waivers, they would have

implemented cost-effective safety measures to comply with

the law and the multi-billion dollar national cleanup crisis

would have been substantially avoided.

A penalty’s deterrent effect on a federal agency stems

partly from its loss of the money. Where the agency pays

the penalty from its own account, the agency loses the money.

Loss to the agency occurs even where its funds are

transferred to another account in the federal Treasury

pursuant to a citizen suit, since the penalized agency has

no access to that account. Contrary to DOE's statement that

Congress could not have intended to shift funds from one

Treasury account to another (DOE Br. 33, 42), this is exactly

what Congress intended. The most effective monetary

deterrent results from payment of the penalty to a state, since

the federal government loses the money altogether.

Of even greater deterrent than the loss of funds is the

penalty’s public declaration that the penalized agency has

been punished for violating the law. The penalty focuses

attention on the wayward agency by the public, the executive

branch and Congress, which will hopefully make inquiries

into the agency's behavior and take steps to remedy it. The

publicity generated by this undesired attention will convince

other federal agencies to comply with the law in the same

manner as responsible state and private entities.

This undesired attention occurs whether the penalty is

paid from an agency account or the Judgment Fund. It also

occurs whether the money is paid to a State or to another

federal Treasury account pursuant to a citizen suit.

Although larger penalties generate more adverse publicity

and Congressional attention, even a small penalty against

a federal agency ordinarily invites public scrutiny due to the

identity of the violator. In fact, a Congressional Budget Office

study has shown that, even where there is undisputed state

authority to penalize federal agencies (e.g., under the Clean

Air Act waiver), these penalties have not been “substantial.”

HR. Rep. No. 111 at 13-14. Taking the allegations of the

complaint as true in the case at bar, the penalty to be paid

by DOE for its 35,205 days of state law violations amounts

to only $7.10 per day of violation. Therefore, where the courts

enforce Congress’ penalty waiver, the States have found that

smal! penalties frequently generate federal compliance.

DOE encourages the Court to read holes into the waivers

of immunity of RCRA and the Clean Water Act.’ Acceptance

* DOE has lodged with the Court a DOE statement on H.R. 2194 and

S 596. arguing that the statement describes issues Congress should

consider before waiving immunity DOE Br. 39, n. 34. This statement

was a self-serving DOE attempt to boost its image and to persuade

Congress to weaken the RCRA waiver DOE's statement contends it

should be exempt from penalties because the Department had a “late

start’ towards developing technology for treatment of radioactive

hazardous waste. However, DOE's “late start” towards RCRA compliance

resulted from its refusal to acknowledge that RCRA applied in any fashion

to any of its activities, until it lost the argument in a lawsuit. Lega/

Environmental Assistance Foundation v. Hodel, 586 F Supp. 1163 (E.D

of DOE's invitation would do more than let DOE escape

retribution for its disgraceful conduct - it would also

repudiate the language of both statutes and defeat Congress’

intent to comprehensively stop hazardous waste and water

pollution, including costly, federally sponsored pollution.

E. Because The Department Of Justice Prohibits

The U.S. Environmental Protection Agency

From Suing Sister Federai Agencies For Illegal

Activities, The States Must Be Allowed To

Utilize The Civili y Deterrent Provided By

Congress To Enforce The Law At Federal

Facilities.

The inability of US. EPA to enforce the pollution laws

against its sister agencies underscores the need for state

enforcement. Under Department of Justice policy, U.S. EPA

is not allowed to file suit against other federal agencies.

Rothmel, When Will The Federal Government Waive The

Sovereign immunity Defense And Dispose of Its Violations

Properly?, 65 Chi.-Kent L. Rev. 581, 581-82 & n. 6 (1990).

As a result, former U.S. EPA Assistant Administrator J.

Winston Porter testified before a House committee that U.S.

EPA had been forced to rely on “jawboning” federal agencies

in attempt to obtain compliance. H.R. Rep. No. 111 at 17.

Therefore, in the absence of U.S. EPA lawsuits, the states

are left to conduct enforcement at federal facilities. It is thus

essential that the States be allowed to utilize the civil penalty

? (footnote 2 cont.)

Tenn. 1984). The delay in development of treatment technology was

caused by DOE's “late start,” and at any rate, did not justify DOE's past

practices of simply dumping the waste in the meantime. Furthermore,

Section 1006(a) of RCRA, 42 U.S.C. 6905(a), exempts DOE from RCRA

liability whenever RCRA standards are inconsistent with radiological

safety precautions. DOE also may apply to U.S. EPA for variances on

land ban wastes for which it has no technology Long ago, Congress

made the judgment that the public interest would be served by a broad

waiver, with minor exceptions such as Section 1006(a). At the present

time, neither the House nor the Senate has seen fit to adopt the penalty

exemptions proposed by DOE.

deterrent Congress intended them to use against

uncooperative federal agencies.

ll. The Rules Of Statutory Construction

Applicable To Penal Laws And Waivers Of

Sovereign immunity Respect The intent Of

Congress, Rather Than Utilizing An

“Especially Rigorous Application’ Of Strict

Construction Dependent On The Invention Of

Strained, Improbable Meanings For The

Statutes.

DOE proposes a new rule of statutory construction which

would not only threaten the majority of Congress’ waivers,

but would also impede enforcement of criminal and other

penal laws at federal facilities. DOE advocates an “especially

rigorous application” (DOE Br. 17) of strict construction,

arguing that a “particularly clear statement” is required for

monetary waivers and penal statutes. In its petition for

rehearing below, DOE represented that the decisions of this

Court require a waiver to “be so clear and unequivocal as

to admit no other possible construction.” R. 11, p. 2. DOE's

proposed rule would not only change the courts’ approach

to monetary claims under the Torts Claim Act and other

statutes, but would also hinder enforcement against crimes

and other penal offenses at federal facilities. As explained

below, neither the penal nor waiver decisions of this Court

call for an added measure of strictness in this case.

A. When Applying Strict Construction To Penal

Laws And Waivers Of Sovereign Immunity, The

Court Has Drawn Upon The History And

Purpose Of The Legislation To Determine

Legislative Intent.

Rather than reading a statutory excerpt in isolation or out

of context, Mastro Plastics Corp. v. National Labor Relations

Board, 350 U.S. 270, 285 (1956), the Court has looked for

guidance to “the whole law, and to its object and policy.”

Philbrook v. Glodgett, 421 U.S. 707, 713 (1975). The Court

does not depart from this principle even when determining

the rights of the United States. Richards v. United States,

369 U.S. 1, 11 (1962).

In construing a penal water pollution statute in United

States v. Standard Oil Co., 384 U.S. 224 (1966), the Court

stated that strict construction is no substitute for “common

sense, precedent, and legislative history.” /d.,-at 225. The

Court's opinion emphasized that the Court would not

construe the criminal statute “in a vacuum” nor would the

Court adopt a “narrow, cramped reading” which would result

in a “partial defeat” of the statute’s purpose. /d. See also,

United States v. Braverman, 373 U.S. 405, 408 (1963) (criminal

statute construed in light of economic il’: motivating passage

of the law).

The same principle governs waivers of sovereign immunity.

While discussing “the immunity enjoyed by the United States

as territorial sovereign,” the Court explained the necessity

of gauging Congressional sentiment:

The outlook and feeling thus reflected are not

merely relevant to our problem. They are important

.. A steady legislative trend, presumably

manifesting a strong social policy, properly makes

demands on the judicial process.

National City Bank of New York v. Republic of China, 348

U.S. 356, 359-60 (1955). See also, United States v. Yellow

Cab Co., 340 U.S. 543, 550 (1951) (recognizing Congressional

intent to broadly waive federal tort immunity in order to

reduce private bills for relief in Congress).

In the case at bar, the Court should interpret the waivers

of sovereign immunity in a manner which effectuates

Congress’ comprehensive plans to control all hazardous

waste and water pollution. Exemptions for federal agencies

would defeat this Congressional objective.

B. When Construing Penal Statutes And Waivers

Of Sovereign Immunity, The Court Has

interpreted Their Terms According To Their

Plain And Ordinary Meaning.

When interpreting waivers, the Court has usually assumed

that legislative purpose is expressed by the “ordinary

meaning” or “common usage” of the statutory words. Kosak

v. United States, 465 U.S. 848, 853 (1984); Yellow Cab Co.,

340 U.S. at 548. The Court applies the same principle of

common usage to penal laws, assigning the “fair meaning”

to disputed terms. United States v. Cook, 384 U.S. 257, 263

(1966). Therefore, the Court has rejected efforts by litigants

to exercise “ingenuity to create ambiguity” in the plain terms

of a waiver. United States v. James, 478 U.S. 597, 604 (1986).

C. Strict Construction Does Not Assign The

Narrowest Possible Meaning To Penal Laws

And immunity Waivers, Especially Where

These Statutes Are Enacted In Broad,

Sweeping Terms.

Strict construction is not used to create ambiguity in a

Statute “as an overriding consideration of being lenient to

wrongdoers.” United States v. Turkette, 452 U.S. 576, 587,

n. 10 (1981). Therefore, the Court does not assign penal

statutes their “n>-rrowest possible meaning” in disregard of

Congressional intent. United States v. Bramblett, 348 U.S.

503, 510 (1955). Accord, Cook, 384 U.S. at 262. Instead, penal

statutes are given their “fair meaning” in accord with the

evident intent of Congress, Cook, 384 U.S. at 262-63, even

where the statute speaks in “broad, absolute terms.” United

States v. Mississippi Valley Generating Co., 364 U.S. 520,

550 (1961).

Similarly, immunity waivers must be sensibly construed

according to their literal language. On various occasions,

the Court has quoted the following statement from a decision

by Judge Cardozo:

The exemption of the sovereign from suit involves

hardship enough, where consent has been

withheld. We are not to add to its rigor by refinement

of construction, where consent has been

announced.

Kosak, 465 US. at 853, n. 9; Yellow Cab, 340 US. at 554.

The Court does not assume the authority to narrow a waiver

intended by Congress. Bowen v. City of New York, 476 US.

467, 479 (1986); United States v. Kubrick, 444 U.S. 111, 118

(1979). While the Court should not promote extravagance

by “careless construction” of waivers, neither should it “as

a seif-constituted guardian of the Treasury import immunity

back into a statute designed to limit it.” Indian Towing Co.

v. United States, 350 U.S. 61, 69 (1955).

Cong;essional intent to broadly waive immunity must not

be “thwarted by an unduly restrictive interpretation.”

Canadian Aviator v. United States, 324 U.S. 215, 222 (1945).

The courts may not whittle down a broad waiver by resorting

to a review of legislative history or other refinements. Yellow

Cab., 340 U.S. at 549-50.

D. When Applying The Rule of Strict

Construction, The Court Has Refrained From

Creating Or Enlarging Exceptions To Penal

Laws And Waivers Of Immunity.

The Court has refrained from using “strained and technical

constructions” to create exceptions to or loopholes in penal

statutes. Korde/ v. United States, 335 U.S. 345, 349 (1948).

Similarly, strict construction will not be utilized to enlarge

the exceptions expressly written in a clear and sweeping

waiver of immunity. United States v. Muniz, 374 U.S. 150,

166 (1963); Yellow Cab, 340 U.S. at 548, n. 5, 549 (disapproving

“fine distinctions” between claims to exempt some claims

from the waiver). Exceptions to a waiver should not be

“broadly construed,” because “unduly generous

interpretations of the exceptions run the risk of defeating

the central purpose of the statute.” Kosak, 465 U.S. at 853,

n. 9. The courts’ proper objective is to identify the

circumstances within the words and reason of the

exceptions, “no less and no more.” /d.

E. Congress Is Not Required To Specifically Spell

Out Each And Every Federal Action Included

in A Penal Statute Or Immunity Waiver.

Strict construction does not force Congress into a

straitjacket of specificity when writing waivers of sovereign

immunity. Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988),

construed a waiver which categorically subjected federal

entities to workers’ compensation laws “to the same extent”

as such laws are applied to private facilities. /d., at 185. The

Court found that this waiver authorized supplemental awards

similar to penalties for the violation of state safety regulations

even though supplemental awards were not expressly listed

in the waiver. /d., at 183-84.

Similarly, when construing the waiver for ‘any

claim ... on account of personal injury” in the Torts Claims

Act, the Court foynd that Congress had waived immunity

for each and every claim not expressly exempted by the

Act. Yellow Cab, 340 U.S. at 548-50. The Court rejected the

government's claim that the statute was not “sufficiently

specific.” /d., at 555.

lf Congress attempted to list each item or activity subject

to waiver, instead of broadly categorizing them, Congress

would inevitably miss specific items intended for inclusion.

Insisting on itemization as a condition of waiver would thus

defeat the intent of Congress.

F. Contrary To DOE’s Position, The Decisions Of

This Court Do Not Authorize An “Especially

Rigorous Application’ Of Strict Construction

To Penalty Waivers.

As support for its rule of “especially” strict construction,

DOE relies on Lehman v. Nakshian, 453 U.S. 156 (1981) and

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

According to DOE, Lehman requires a “particularly” clear

waiver when it “affects the public fisc.” DOE Br. 16. However,

not even a generous reading of that case discloses a

command to interpret monetary waivers more harshly than

other waivers.°

DOE's dependence on Ault to defeat general

Congressional penal waivers also finds no support in the

case. Although the statute in Ault broadly waived immunity

for “all laws and liabilities as common carriers”, the statute

added a proviso “except in so far as may be inconsistent

.. with any order of the President.” 256 U.S. at 558. The

Director General of Railroads, acting as the President's

representative (id, at 556), had issued an order exempting

the federal government from fines and penalties (id., at 564).

Thus, it was the President's order which preserved sovereign

immunity in Ault, not a narrow judicial interpretation of the

statute's sweeping waiver language. Any contrary holding

would be contrary to subsequent decisions in Goodyear

Atomic, supra, and Yellow Cab, supra, effectuating broad

Congressional waivers.

DOE's proposed rule of especially strict construction

violates the commands of this Court described in Argument

II(A)-(E) above. In rejecting a past attempt by a litigant to

narrowly construe a penalty statement in such a fashion,

the Court once noted:

[It is] “easy to obstruct the public will in almost

every statute enacted; for it rarely happens that

one is so precise and exact in its terms as to

preclude the exercise of ingenuity in raising doubts

about its construction.”

Northern Securities Co. v. United States, 193 U.S. 197, 359-

60 (1904). The Court should reject DOE’s efforts to defeat

Congressional purpose by attributing strained, improbable

+ While most of the immunity cases cited by the State and DOE construe

waivers requiring the expenditure of federal funds, only one espouses

the “especially” narrow construction urged by DOE. This sole exception

is Library of Congress v. Shaw, 478 U.S. 310 (1986), which applies a

special “no-interest rule” to provide “an added gloss of strictness” to

interpretation. /d., at 318. This standard applies only to waivers for interest,

Missouri v. Jenkins, 491 U.S. 274, 281, n. 3 (1989).

meanings to the waivers in RCRA and Clean Water Act.

iit. The Court Of Appeals Below Correctly Held

That Ohio’s Civil Penalties Arise Under

Federal Law, Since Ohio's Water Pollution

Prevention Program and Penalties Originated

From The Clean Water Act.

A. As Commonly Used, And As Used In The

Clean Water Act, The Term “Sanctions”

includes Civil Penalties.

To stem the flow of federal water pollution, Congress

amended the federal facilities section of the Clean Water

Act in 1977. This section now provides in pertinent part as

follows:

(a) Each department, agency, or instrumentality

_.. of the Federal Government... shall be subject

to, and comply with, a// Federal, State, interstate,

and local requirements, administrative authority,

and process and sanctions respecting the control

and abatement of water pollution in the same

manner, and to the same extent as any

nongovernmental entity including the payment of

reasonable service charges. The preceding

sentence shall apply .. . (C) to any process and

sanction, whether enforced in Federal, State, or

local courts or in any other manner.

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 penalties

arising under Federal law or imposed by a State

or local court to enforce an order or the process

of such court....

33 U.S.C. 1323 (emphasis added).

The first sentence makes it evident that departments and

agencies of the executive branch are subject to a// federal

and state sanctions. Subdivision (C) of the second sentence

shows that federal entities are subject to any federa! and

state sanctions. The only exception to this all-inclusive waiver

for sanctions is the last sentence quoted above. Significantly,

the last sentence specifically exempts federal officers from

civil penalties for official duties, an exemption which would

be unnecessary if the previous language of the section had

not already waived liability for civil penalties.

Therefore, federal agencies are subject to civil penalties

if civil penalties are a form of sanction in the plain and

ordinary usage of that word. In order to ascertain the plain

and ordinary meaning of a word, the courts frequently rely

upon the use of dictionary definitions. Cf, Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 199 fn. 20 (1976).

Black's Law Dictionary defines “sanction” as:

... That part of a law which is designed to secure

enforcement by imposing a penalty for its

violation...

Black's Law Dictionary 1341 (6th ed. 1990). Bal/lentine’s Law

Dictionary (3rd ed. 1969) at 1137 further states that a sanction

is“... the imposition of any form of penalty or fine.” Thus,

the common usage of “sanction” describes a penalty

imposed on a violator of the law.

Even the Department of Justice uses the word “sanction”

to describe penalties or punishment. The Department, in its

comments on the 1976 RCRA legislation, used the terms

“sanctions” and “penaities’’ interchangeably in

characterizing civil and criminal penalties under both RCRA

and the Clean Water Act. H.R. Rep. No. 1491 at 83-84,

reprinted in 1976 U.S. Code Cong. & Ad. News at 6321. See

also, the testimony of U.S. EPA’s Administrator on the 1972

water pollution legislation, in which he refers to criminal and

civil penalties as “enforcement sanctions.” H.R. 911 at 161.

The Court has also referred to penalties or fines as

sanctions, including the penalties and fines imposed

pursuant to the Clean Water Act and the Clean Air Act. See

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

484 U.S. 49, 53 (1987); United States v. Ward, 448 U.S. 242,

249 (1980); Adamo Wrecking Co. v. United States, 434 U.S.

275, 282 (1978). Thus, the courts, as well as Congress, U.S.

EPA, and the Department of Justice, commonly use the term

“sanctions” to describe civil penalties.

The legislative history confirms Congress’ complete waiver

in the Clean Water Act. The Senate committee report declares

that federal facilities are “subject to all of the provisions of

State and local pollution laws.” (Emphasis added). S. Rep.

No. 370 at 67, reprinted in U.S. Code & Ad. News at 4392.

Civil penalties are provisions of state law.

In addition to the district court and court of appeals below,

two courts have held that “sanctions” in 33 U.S.C. 1323

include civil penalties. Sierra Club v. Lujan, 931 F.2d 1421,

1425 (10th Cir. 1991); Metropolitan Sanitary Dist. v. U.S. Dept.

of Navy, 722 F.Supp. 1565, 1570 (N.D. lil. 1989). Both courts

rejected the position advocated by DOE in the case at hand,

that the meaning of “sanction” is limited by the meaning

of “process”. DOE Br. 19-21. As noted in Lujan, this

interpretation contradicts the meaning ascribed by Congress

to the same words in the Clean Air Act waiver upon which

33 U.S.C. 1323 is based. 931 F.2d at 1428; H.R. Rep. No.

294 at 200, reprinted in 1977 U.S. Code Cong. & Ad. News

at 1279.

DOE's view that “process” limits “sanctions” to

enforcement of a court order is also contrary to the ordinary

meaning of “process.” “Process” is not limited to court

orders, but “as now commonly understood” refers to a

summons, complaint and “all the acts of a court from the

beginning to the end of its proceedings.” Black’s Law

Dictionary 1205 (6th ed. 1990). See also, Girardier v. Webster

College, 563 F.2d 1267, 1272-73 (8th Cir. 1977). A court uses

its process to assess a penalty, starting with the complaint

and summons. Therefore, even if DOE’s “narrowest” of

interpretations were applicable to the waiver, the waiver stil!

authorizes penalties.

Similarly narrow and unfounded is DOE's contention that

“any ... sanction” refers only to a singular type of legal

authority. DOE Br. 21. Congress’ use of “any”, rather than

denoting a singular connotation, has a broad application.

James, 478 U.S. at 605. Congress’ use of “all... sanctions”

at an earlier point in the waiver also contradicts DOE's

interpretation.

Finally, DOE argues that the Senate committee report did

not expressly mention “penalties”. DOE Br. 24, n. 18. However,

the Senate not only wrote that federal agencies are subject

to all state and local water pollution “provisions” (S. Rep.

No. 370 at 67), but followed the waiver for sanctions with

a limitation on civil penalties in the “arising under” sentence.

The Court should apply the ordinary, intended meaning to

this waiver rather than straining to adopt DOE's narrow

interpretation.

B. Because Ohio's Penalties Originate Under, Are

Mandated By, And Are Approved Under The

Clean Water Act, They Are Penalties ‘Arising

Under Federal Law’’ As That Phrase Is Used

In The Federal Facilities Waiver.

A clause in 33 U.S.C. 1323 provides that federal agencies

are liable “only for those civil penalties arising under Federal!

law ....” This clause, being an exception to the broad

waiver expressed in the previous sentences of the section,

must not be construed in an “unduly generous” fashion which

runs the risk of defeating the central purpose of the statute.

Kosak, 465 U.S. at 853, n. 9. Therefore, the “arising under’

exception must not defeat the comprehensive nature of

Congress’ water pollution program or discourage federal!

agencies’ compliance with that program.

“Arising under” Federal law is not the same as conversion

into Federal law. “Arise” means to “originate” or “come into

being.” Webster's New World Dictionary, 2d ed. (1978).

As held by the courts below, Congress meant to restrict

penalties to those imposed by federally approved water

pollution programs. DOE Pet. App. 6a-8a, 42a-43a. Accord,

Metropolitan Sanitary District, 722 F.Supp. at 1572. A State

may obtain penalties only if its penalties are part of an

authorized program, so that the State steps into the shoes

of U.S. EPA to enforce the federal water pollution program.

This clause also precludes municipalities and other iocal

governments, if their programs are unauthorized, from

imposing unapproved penalties on the federal government.

E.g., see Metro. Sanitary Dist. Of Greater Chicago v. United

States, 737 F.Supp. 51, 52 (N.D. lil. 1990) (dismissal of penalty

claims of local sewer district which, unlike Ohio, lacked

federal approval for its penalties).

In 33 U.S.C. 1342(b), Congress authorized the States to

implement the Clean Water Act by administering the federal

water pollution program. The Clean Water Act specifically

requires the State to abate violations through civil penalties

and other enforcement mechanisms. The state permit

program must be implemented “in accordance with” 33

U.S.C. 1342. 33 U.S.C. 1342(c)(2). The State then implements

the Section 402 permit program on behalf of and in lieu

of U.S. EPA. 33 U.S.C. 1342(c)(1). U.S. EPA can disapprove

any permit issued by the State. 33 U.S.C. 1342(d)(2).

Compliance with the state permit constitutes compliance with

the Clean Water Act. 33 U.S.C. 1342(k). As the court of appeals

below aptly noted, compliance with federally approved state

law is compliance with the Clean Water Act. DOE Pet. App.

7a. Therefore, the entire permit program, including its civil

penalty provisions, originates or arises from federal! law.

Approved state programs thus replace federal

implementation of the Clean Water Act. Adding to the federa!

character of the permits issued by States under approved

programs is the fact that U.S. EPA can directly enforce the

permits as federal requirements. 33 U.S.C. 1319(a). Therefore,

the State is enforcing the same permit enforced as federal

law by U.S. EPA, and citizens under 33 U.S.C. 1365.

As the court below noted, the introductory section of the

Clean Water Act makes it clear that state permit programs

arise under tederal law by declaring:

It is the policy of Congress that the States _ .

implement the permit programs under sections 402

and 404 of this Act.

33 US.C. 1251(b) (emphasis added). On fourteen other

occasions, Congress refers to a “permit issued under Section

402 of this Act... by a State” (emphasis added) or uses

similar language. 33 U.S.C. 1314(g); 33 U.S.C. 1314(i)(1); 33

U.S.C. 1314(i)(2); 33 U.S.C. 1319(a)(1); 33 U.S.C. 1319(a)(3); 33

U.S.C. 1319(c)(1)(A); 33 U.S.C. 1319(c)(1)(B); 33 U.S.C.

1319(c)(2)(A); 33 U.S.C. 1319(c)(2)(B); 33 U.S.C. 1319(c)(3)(A);

33 U.S.C. 1319(d); 33 U.S.C. 1319(g); 33 U.S.C. 1342(a)(3); 33

U.S.C. 1342(c)(2).

The legislative history of the Clean Water Act similarly

indicates that the State's permit program arises from federal

law. The House report for the 1972 Act describes state

permits as permits “issued ... under Section 402” or issued

“pursuant to” Section 402. H. R. Rep. No. 911 at 100, 120.

The same report, in describing both State and U.S. EPA roles

in the permit program, referred to “this program.” H. R. Rep.

No. 911 at 125. That is, there is only one program under

federal law, and an authorized State administers it.

The conference report uses language consistent with that

of the House report while explaining Section 402, stating:

The conferees intend that the Administrator (or a

State) shall include in any permits issued under

Section 402 (or shall require a State to include

in any permits issued under 402), where

appropriate, a schedule of compliance....”

Conf. Rep. No. 1236, 92d Cong., 2d Sess. 140 (1972), reprinted

in 1972 U.S. Code Cong. & Ad. News 3818 (emphasis added).

Because Congress regarded civil penalties as an essential!

part of the permit programs arising under the Clean Water

Act, 33 USC. 1342(b)\(7) makes assessment of penalties

mandatory for authorized state programs. According to the

U.S. EPA regulations implementing 33 U.S.C. 1342, penalty

assessment is a prerequisite for obtaining and keeping

authorization of an NPDES program. 40 C.F.R. 123.27(a)(3).

In fact, to meet U.S. EPA's programmatic requirements, a

state's civil penalty authority must be $5,000 per day or higher.

40 C.F.R. 123.27(a)(3)(i). U.S. EPA's rules specifically mandate

that penalties be imposed in “appropriate” amounts. 40 C.F.R.

123.27(c). Since assessment of civil penalties is a mandatory

function of the NPDES permit program administered on

behalf of the federal government, Congress regarded these

civil penalties as arising under federal law.

Pursuant to 33 U.S.C. 1342 and 40 C.F.R. Part 123, Ohio

has created an NPDES permit program to implement the

Clean Water Act. Because the program did not exist until

the Clean Water Act called for its formulation, Ohio's permit

program truly “arises under” federal law. Ohio Revised Code

Section 6111.03(J) provides the mechanism for the Ohio EPA

Director to “[iJssue, revoke, modify, or deny permits . . . in

compliance with all requirements of the ‘Federal Water

Pollution Control Act’....” The Director is not allowed

to issue a permit to which US. EPA objects. O.R.C.

6111.03(J)(3).

O.R.C. 6111.03 commands state officials to administer

Ohio's water pollution code “in the same manner that the

‘Federal Water Pollution Control Act’ is required to be

administered.” Therefore, contrary to DOE's assertion (DOE

Br. 27), Ohio's water pollution issues will not be “resolved

in substantially different ways” under state and federal law.

By virtue of 40 C.F.R. 123.27(a)(3)(i), Ohio's maximum $10,000

per day civil penalty is also consistent with the Clean Water

Act. In addition, Ohio EPA permits must attain compliance

with “national effluent limitations, national standards of

performance for new sources, and national toxic and

pretreatment effluent standards” set by U.S. EPA under the

Clean Water Act. O.R.C. 6111.03(J). Ohio EPA permits also

must, where necessary, impose “water quality related effluent

limitations in accordance with sections 301, 302, 306 and

307 of the ‘Federal Water Pollution Control Act’...." O.R.C.

6111.03(J). O.R.C. Chapter 6111 contains no fewer than 33

references to the federal act in authorizing Ohio EPA to

implement it.

Ohio Revised Code Section 6111.09 provides the

mechanism to assess civil penalties against any “person”

which violates an NPDES permit. Federal departments are

included within the definition of “person”, O.R.C. 6111.01(),

which in turn may be penalized pursuant to O.R.C. 6111.09.

Both this definition and the penalty section were approved

by U.S. EPA as part of Ohio's program. By virtue of U.S.

EPA's authorization, these penalties against federal agencies

arise under federal law.

DOE postulates that federal approval of Ohio's permit

program and penalties does not convert Ohio's penalties

into federal law. However, neither the State nor the decision

below have contended that O.R.C. 6111.09 has been

converted into a federal law. Instead, O.R.C. 6111.09 penalties

have arisen under, i.e., originated or come into being under,

federal law. Similarly, the citations of legislative history

provided in DOE's brief simply mentions that state programs

remain state law rather than being converted into federal

law. These citations do not contradict the State’s position

that the penalties originate under federal law. Congressional

statements about permits issued “under state law” are also

consistent with the many statements in the Clean Water Act

about state permits issued under federal law, since approval

of the State’s program and its substitution for U.S. EPA

administration of the Act causes the permits to be issued

under both state and federal law.

Similarly flawed is DOE's reliance on caselaw pertaining

to the courts’ exercise of federal question jurisdiction

pursuant to 28 U.S.C. 1331. In International Ass'n. of

Machinists v. Central Airlines, 372 U.S. ©52 (1963), a private

contract containing federally mandated conditions was held

to “arise under federal law.” The Court found that the contract

terms were derived from the federal statute and its policy.

ld., at 690-91. Thus, the contract depended on the federal

statute for “power and authority” even though private action

was necessary to implement its federal purpose. /d., at 692.

Like the contract terms in International Machinists, O.R.C.

6111.09 penalties have their source in the authority of the

Clean Water Act and its policy. Although the enactment of

state law is necessary to draw upon this “power and

authority”, Ohio penalties still arise under federal law by

virtue of their origin and the pervasive federal involvement

in their approval and implementation.

However, while the Court could find that Ohio penalties

“arise under federal law” under the principle of /nternationa/

Machinists, reliance on jurisdictional caselaw is unnecessary

to decide the meaning of this phrase as intended in 33 U.S.C.

1323. The Clean Water Act waiver is the product of its own

specific purpose and history, and thus must be construed

consistently with the circumstances surrounding its

enactment. On the other hand, the interpretations of 28 U.S.C.

1331 are the result of that statute’s distinct purpose and

history. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.

480, 494-95 (1983). In fact, Article Ili of the Constitution,

containing the same phrase as 28 U.S.C. 1331, has been

construed differently due to the differences in its history and

policy. /d. In Citronelle-Mobile v. Gulf Oil Corp., 591 F.2d 711,

715 (Temp. Emerg. Ct. App. 1979), cert. denied, 444 U.S. 879

(1979), another federal statute providing “arising under”

jurisdiction was interpreted in a third manner due to its

distinct background and context.

Federal question jurisdiction implements Congress’ policy

to protect federal statutes from hostile state courts, as well

as to apply the expertise of the federal judiciary to issues

of federal law. In contrast, the phrase “arising under federal

law” in 33 U.S.C. 1323 was enacted in an entirely different

context. Rather than being concerned about destruction of

federal statutes by state courts, Congress meant to

encourage compliance with comprehensive, federally

approved water pollution programs while shielding federal

agencies from unauthorized penalties. The use of “arising

under” must be examined in light of expressed Congressional!

intent to enforce federal facility compliance with the Act,

an objective which has not been, and cannot be,

accomplished without the penalty deterrent.

Ohio has not sought independent federal question

jurisdiction for its state penalty claims, nor does the State

seek a holding which will expand federal question

jurisdiction. In fact, while Ohio asserts waiver under 33 U.S.C.

1323, the State’s complaint asserts federal court jurisdiction

for the state claims only as pendent claims. J.A. 5. The State

seeks to exercise a waiver provided by Congress as essential

assistance in operating a federally mandated and approved

program. The Court should not interpret the “arising under”

exception in a fashion which defeats this purpose. Kosak,

supra. |n light of the ordinary meaning of “arise,” the repeated

statutory and legislative history references to state permits

“under” the Act, the substitution of Ohio’s program for the

Administrator's, and U.S. EPA's approval of O.R.C. 6111.09

penalties against federal agencies, the Court should hold

that Ohio's penalties arise under federal law.

IV. The Citizen Suit Provision Of The Clean Water

Act Also Authorizes Civil Penalties Against

Federal Facilities For Violating This Law.

The provision in 33 U.S.C. 1323 is not the only waiver

of sovereign immunity in the Clean Water Act‘ In 1972,

* In its court of appeals brief, DOE argued that only 33 USC. 1323,

and not 33 USC. 1365, is a waiver of sovereign immunity. R. 2, pp

33-34. To DOE's credit, it thus far has not repeated the same argument

to this Court. Moreover, it should be noted that, in EPA v. California,

the federal government contended the opposite: that only 33 USC

1365 is a waiver. The federal agencies in that case argued that states,

as citizens under that section, could file citizen suits to fill the loophole

left by federal refusal to obtain state permits. in the event DOE's repiy

brief argues that 33 U.S.C. 1365 is not a waiver, the State has attached

the relevant pages of the EPA brief in the appendix, infra. Cf. Hancock,

426 US. at 196 (State, under the analogous citizen suit provision in

the Clean Air Act. can file suit against federai agencies).

Congress also made it clear that federal facilities are subject

to civil penalties in citizen suits pursuant to Section 505,

33 U.S.C. 1365. Subsection (a) of this section provides in

pertinent part:

. . [A]ny citizen may commence a civil

action...

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

States...) .... The district courts shall have

jurisdiction . . . to apply any appropriate civil

penalties under section 309(d) of this Act. [33 U.S.C.

1319].

In 33 U.S.C. 1365(a)(1), Congress expressly defined the

United States as a “person” which can be sued. Section

309(d) provides that the courts can assess civil penalties

against all “persons”. 42 U.S.C. 1319. By incorporating

Section 309(d) civil penalty authority in the same section

defining the United States as a “person,” Congress could

not avoid noticing that its literal language subjects federal

entities to penalties.

The waiver in 33 U.S.C. 1365(a) is complemented by the

waiver in 33 U.S.C. 1323(a). The latter section subjects federal

entities to “all Federal... sanctions.” “[A]rising under Federal

law” confirms the waiver for citizen suit penalties. If Congress

had not authorized these penalties against federal entities,

there would be no need for these two provisions. Since the

Court will not interpret a statute so as to make one part

inoperative, Mountain States Tel. & Tel. v. Pueblo of Santa

Ana, 472 U.S. 237, 249 (1985), the Court should not make

superfluous the two provisions of Section 313 by its

interpretation of Section 505.

Although the court of appeals below did not rule on the

federal penalty issue,’ the Court of Appeals for the Tenth

° A federal appellate court may decide an issue not adjudicated below

where the proper resolution of that issue is clear. Singleton v. Wuiff,

428 U.S. 106, 121 (1976). If the Court reverses the court of appeals’

decision on state water pollution penalties, the Ohio/DOE stipulation

Circuit has held federal agencies subject to citizen suit

penalties. Sierra Club v. Lujan, 931 F. 2d 1421 (10th Cir. 1991).

The Tenth Circuit held that the definition of “person” in 33

U.S.C. 1365(a) subjects federal agencies to penalties

pursuant to Section 309(d). /d. at 1427. In fact, with respect

to the United States, the more specific definition of “person”

in 33 U.S.C. 1365(a) takes precedence over the general

definition in 33 U.S.C. 1362(5) omitting the United States.

Id.

Congress is not obligated to place all of its definitions

in the same statutory section. Congress instead saw fit to

define the United States as a person in the same section

that makes the United States liable for civil penalties. This

definition applies to the entire act, including 33 U.S.C. 1319.°

DOE argues that 33 U.S.C. 1365(a) authorizes only

“appropriate” civil penalties under 33 U.S.C. 1319(d), and

that penalties against DOE are not appropriate because DOE

is not a person. DOE Br. 32. However, “appropriate” in 33

U.S.C. 1365(a) refers to civil penalties, not appropriate

persons. Had Congress wished to shield federal agencies

from penalties, it would have allowed the courts to penalize

only the appropriate “persons”.

Congress’ use of “appropriate” civil penalties refers to the

weil documented judicial discretion to adjust the size of a

civil penalty depending on the facts and equities. U.S. EPA's

regulations for state water pollution programs require the

> (footnote 5 cont.)

of settlement still subjects DOE to penalties pursuant the citizen suit

provision. J.A. 90-91. In this event, the court of appeals’ finding of

mootness for the citizen suit penalty issue would be erroneous and

the Court's review appropriate.

® When writing other sections of the siatute, Congress assumed that

federal agencies were persons as defined by the Act. On ten occasions,

Congress used the phrase “Federal and State agencies and other

interested persons.” (emphasis added). 33 U.S.C. 1345(d); 33 U.S.C.

1314(a)(1), (a)(2), (bb), (c), (d)(1), (4)(2), (d)(3), (e) and (f).

State to seek penalties in amounts “appropriate to the

violation.” 40 C.F.R. 123.27(c) & note. The equitable factors

considered by the courts include, inter alia, the seriousness

of the violation and good faith efforts to comply.’ Congress

ratified the courts’ use of these equitable factors by later

incorporating them into Section 309(d) of the Clean Water

Act. Tull v. United States, 481 U.S. 412, 422, n.8 (1987); 33

U.S.C. 1319(d). A number of decisions have referred to the

term “appropriate” in 33 U.S.C. 1365 as confirmation of

judicial authority to decide the size of a penalty. Sierra Club

v. Lujan, 728 F. Supp. 1513, 1518 (D. Colo. 1990), aff'd 931

F. 2d 1421 (10th Cir. 1991); Student Public Interest Research

v. Monsanto Co., 600 F. Supp. 1474, 1476 (D.N.J. 1985).

The plain words of the citizen suit provision provide a clear

waiver of sovereign immunity. Rather than accepting DOE’s

inventive construction of 33 U.S.C. 1365, the Court should

honor the waiver written by Congress.

V. The Court of Appeals Correctly Held That The

Language And Legislative History Of The

RCRA Citizen Suit Provision Express

Congressional Intent To Penalize Federal

Agencies For Illegal Hazardous Waste

Conduct.

As with the citizen suit provision of the Clean Water Act,

42 U.S.C. 6972 authorizes suit “against any person (including

.. . the United States)” and gives the courts authority “to

apply any appropriate civil penalties under section 3008(a)

” DOE makes a remark in passing about penalties when a federal agency

“cannot” comply with the law. DOE Br. 22. However, inability to comply

is considered as a mitigating factor in penalty assessment under both

state and federal law. In addition, the President can exempt a federal

facility on such a circumstance under 33 U.S.C. 1323 (and 42 U.S.C

6961) when in the paramount interest of the United States. Furthermore,

to the extent this remark is meant to suggest that federal agencies

have been unable, rather than unwilling, to obey the law, the

Congressional findings described in the legislative history of RCRA and

the Clean Water Act prove otherwise. Arg. |, supra.

and (g).” The “appropriate civil penalties” language was

added in 1984.

The Senate report accompanying S. 757, the bill providing

the current citizen suit provisions, confirms Congressional

intent to subject federal agencies to civil penalties. In

explaining what would happen to a federal agency which

violated the hazardous waste inventory provisions of RCRA,

the Senate stated:

Either a noncomplying agency [or] the

Administrator, if he fails to act, are subject to the

citizen suit and penalty provisions of section 7002.

[42 U.S.C. 6972]. 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... ”.

S. Rep. No. 284, 98th Cong., 1st Sess. 44 (1983). (emphasis

added).

This legislative explanation shows that, when Congress

expanded the citizen suit provision to provide civil penalties,

it was well aware that the definition of “person” in that

provision included the United States. Defining the United

States as a “person” in the same section containing the

civil penalty authorization was meant to “assure that there

is no confusion” about the courts’ ability to penalize the

United States. That this was the intent of the entire Congress

became evident when the conference committee adopted

the Senate’s version of 42 U.S.C. 6972(a) word-for-word,

saying, “The conference substitute adopts the Senate

amendment... .” Conf. Rep. No. 1133, 98th Cong., 2d Sess.

117 (1984), reprinted in 1984 U.S. Code Cong., & Ad. News.

5688-89.

In response to the expression of waiver in 42 U.S.C. 6972

and Senate Report No. 284, DOE again raises its “person”

and “appropriate” arguments. The State has responded to

these arguments in the context of the Clean Water Act, and

will not repeat these responses here.

The State will, however, respond to one DOE argument

unique to this statutory section. According to DOE, the Senate

committee report's discussion of civil penalties does not

indicate a Congressional intent to waive immunity because

the discussion “was buried” in a section of the report

unrelated to the citizen suit section. DOE Br. 44.

However, the Senate’s discussion of civil penalties against

federal agencies appears in a section of the Senate

committee report prominently labelled “FEDERAL

FACILITIES” in capital letters. S. Rep. No. 284 at 45. This

section describes a number of provisions related to federal

facilities, including the waiver of sovereign immunity in

Section 6001. /d. Therefore, it is not surprising to find the

penalty discussion of section 7002(a) under the same

heading. Certainly, the statement that “a noncomplying

agency ...[is] subject to the citizen suit and penalty provisions

of section 7002” is not ambiguous just because Congress

simultaneously identified a violation for which an agency

can be penalized. If anything, the example illustrates and

strengthens Congressional intent.

The explicit language of 42 U.S.C. 6972 and the Senate

committee report, either separately or in combination, leaves

no doubt about Congressional intent to penalize federal

agencies. Added to this language is Congress’ intent,

expressed in legislative history, to treat federal facilities just

like private citizens in order to preserve the effectiveness

of the comprehensive hazardous waste program. S. Rep.

No. 988 at 23-24. Rather than accepting DOE's invitation

to add ambiguity to the statute, the Court should reject DOE's

attempt to escape liability for its wrongdoings.

Vi. By Interpreting The RCRA Waiver For State

Hazardous Waste Penalties In A Manner

Inconsistent With The Plain Meaning Of The

Language And By Creating An Exception To

Exempt Penalties From The Broad Waiver

Intended By Congress To Cover All

Enforcement Mechanisms, The Court Of

Appeals Violated This Court’s Principles Of

Statutory Construction And Thwarted

Congressional Policy.

A. By Admitting That Congress Used The

Words “All Procedural Requirements” To

Waive immunity For Enforcement

Mechanisms, And Then Ruling That

Procedural Requirements Do Not Include

Enforcement Mechanisms, The Court of

Appeals Violated The Rules Of Statutory

Construction Provided By This Court And

Adopted A Rule Of Law Contrary To This

Court’s Decision In Hancock v. Train.

In its consideration of state hazardous waste penalties,

the court of appeals acknowledged the history preceding

the enactment of the RCRA waiver, concluding:

Circumstances surrounding the passage of the

Resource Conservation and Recovery Act also

support a finding that “requirements” include civil

penalties.

DOE Pet. App. 10a. The court of appeals even admitted that

Congress had used the exact wording Hancock stated would

effectuate a clear waiver for all enforcement mechanisms.

Id., at 10a-11a.

Then the court of appeals inexplicably adopted the Ninth

Circuit position that requirements do not include

enforcement mechanisms, stating that this is “a different

plausible” reading of the waiver. DOE Pet. App. 12a. This

“plausible” reading contradicts Hancock, which describes

“enforcement mechanisms” as “procedural requirements”

and ratifies the use of “all .. . requirements” as a complete

waiver.

Therefore, the court of appeals ascertained underlying

Congressional intent and policy in accordance with this

Court's decisions in Philbrook, Richards, and National City

Bank. However, the court of appeals then searched for “a

different plausible” meaning that contradicted that known

Congressional intent, thereby adopting the narrowest

possible construction of the waiver contrary to this Court's

decisions in Bowen and Canadian Aviator. Because the court

of appeals has disregarded this Court's rules of statutory

construction, and because that court's opinion will increase

the danger and cost of hazardous waste pollution at federal

facilities, the Court should reverse the court of appeals on

this point.

B. Because The RCRA Waiver includes All

‘“‘Requirements”’ Without Limitation, And

Because The Common Meaning Of

“Requirements” Includes Civil Penalties, The

Court Of Appeals Erred In Deleting Penalties

From The Waiver.

The RCRA waiver in 42 U.S.C. 6961 waives immunity from

all requirements, as follows:

Each department... shall be subject to, and comply

with, a// federal [and] state .. . . requirements, both

substantive and procedural (including any

requirement for permits or reporting or any

provisions for injunctive relief and such sanctions

as may be imposed by a court to enforce such

relief)...

(Emphasis added). In common usage, “requirements” is

defined as “something called for or demanded.” Webster's

Third New International Dictionary 1929 (3d ed. 1981).

Hazardous waste civil penalties, being called for or

demanded by the hazardous waste laws, are obviously

“requirements” of those laws.

To make the waiver even more explicit, the language in

parentheses gives some examples of procedural

requirements. Permits, reports, injunctive relief, and

sanctions to enforce injunctive relief are all listed as examples

of requirements.

These examples are not a complete list of requirements

for which sovereign immunity is waived. The section

unequivocally states that federal facilities are subject to “a//

... fequirements” (emphasis added), including those listed

within the parentheses. The word “including” is a term of

enlargement meant to illustrate rather than a limitation meant

to exclude all items not specifically listed. PC. Pfeiffer

Company v. Ford, 444 U.S. 69, 77 n. 7 (1979): Federal Land

Bank v. Bismarck Lumber Co., 314 U.S. 95, 99-100 (1941).

The nature of the listed examples also demonstrates that

“requirements” include enforcement mechanisms. Because

“injunctive relief” and “sanctions to enforce such relief” are

enforcement mechanisms, “requirements” obviously include

enforcement mechanisms. Any other interpretation of the

section would be illogical, by saying, on the one hand, that

two enforcement mechanisms are requirements and on the

other hand, that requirements exclude enforcement

mechanisms.

DOE's characterization of “requirements” as “prospective”

but not “retrospective” relief (DOE Br. 12-13) creates the same

internal inconsistency in the statute. One of the requirements

listed in parentheses, reporting, is performed only after the

occurrence of an event and thus is “retrospective.” Therefore,

Congress could not have intended to restrict waivers to

prospective relief.

Statutes must be construed in a manner which will avoid

inconsistency. Helvering v. Credit Alliance Corp., 316 U.S.

107, 112 (1942). Inconsistency can be avoided only by giving

“requirements” the full effect intended by Congress. A normal

reading of this provision subjects federal facilities to all

enforcement mechanisms, including civil penalties.

Although DOE has argued that the 1976 waiver was meant

to be a limited response to Hancock and California, the

parenthetical list of procedural requirements was not limited

to “permits.” Listing three requirements not litigated in those

cases shows a broader intent to waive and is consistent

with Congress’ use of “all.”

The progression of bills preceding final passage of RCRA

also demonstrates the broad scope of its waiver. The enactec

waiver originated in S. 3622, which broadly authorized “all

_. . fequirements, both substantive and procedural.” S. Rep.

No. 988 at 63.

Because Congress had not yet amended the Clean Water

Act and Clean Air Act in response to Hancock and California,

the inclusion of “all” and “procedural” in S. 3622 made the

proposed RCRA language different than the waivers in the

two existing acts. Nevertheless, Senate Report No. 988

characterized the federal facility section of S. 3622 as

“parallel” to the: waivers in the existing acts. S. Rep. No.

988 at 24. Congress regarded the existing air and water

waivers aS comprehensive, and viewed Hancock and

California as misinterpretations of those waivers. See. Arg.

|.C. above, especially the quotations from H.R. Rep. No. 294

at 199 and S. Rep. No. 370 at 67. The Senate report discussion

in S. 3622 shows that the Senate viewed its RCRA waiver

section as parallel to the air and water waivers originally

intended by Congress, not as interpreted by Hancock and

California. Therefore, the Senate added “all” and

“procedural” to its RCRA bill to effectuate the same complete

waiver originally intended in the air and water statutes...

Meanwhile, the House was designing H.R. 14496 without

any waiver of immunity. The House decided to assign U.S.

EPA the burden of enforcement against federal facilities

“rather than subjecting federal facilities to state and local

requirements,” in order to relieve the states of “the almost

impossible burdens of enforcing federal environmental laws

against federal polluters.” H.R. Rep. No. 1491 at 48-49, 51,

reprinted in 1976 U.S. Code Cong & Ad. News at 6287, 6289.

As a result, only federal hazardous waste requirements

applied to federal agencies under the House bill, including

civil penalties sought by U.S. EPA.

When passing RCRA, Congress accepted the Senate bil!

with its broad waiver and rejected the narrow, EPA-enforced

federal facilities provision of the House bill. Therefore, rather

than preserving federal immunity pursuant to H.R. 14496 and

allowing only U.S. EPA to assess penalties, Congress broadly

waived immunity for “all” requirements, both federal and

state, substantive and “procedural.” Substitution of the broad

waiver of S. 3622 for the narrow federal facilities section

of H.R. 14496 caused federal agencies to “be subject to

state law and regulation.” 122 Cong. Rec. 32599 (Sept. 27,

1976) (Rep. Skubitz, the minority floor manager). This saddled

the States with the “almost impossible burdens” of enforcing

the federally mandated hazardous waste programs against

federal agencies, but provided States with the enforcement

mechanisms to accomplish the task.

DOE contends that a specific reference to civil penalties

would appear in the legislative history had Congress

intended to authorize them. DOE Br. 39. However, this Court

has noted that “it would be a strange canon of statutory

construction that would require Congress to state in

committee reports or elsewhere in its deliberations that which

is obvious on the face of a statute.” Harrison v. PPG Industries,

Inc., 446 U.S. 578, 592 (1980). Congress’ reference to al/

procedural requirements makes the RCRA waiver intent clear

on its face with respect to penalties.

As enacted, 42 U.S.C. 696! broadly waived immunity for

all requirements “in the same manner, and to the same extent”

as private persons. This quoted language is almost identical

to the language construed by this Court in Goodyear Atomic

Corp. to provide a broad waiver without exceptions. 486 U.S.

at 185. Obviously, Congress did not intend to place limitations

on the RCRA waiver either.

C. By Admitting That The Plain Meaning Of

“Requirements” Includes Civil Penalties, And

Then Manufacturing Ambiguity As An Excuse

To Exempt Penalties From That Plain Meaning,

The Court Of Appeals Violated The Rules Of

Statutory Construction Followed By This Court.

The district court in Maine v. Navy, 702 F.Supp. 322, 326

(D. Me. 1988), app. pend., No. 91-1064 (1st Cir), remarked

that “an intelligent person reading the statute would think

the message plain” that RCRA requirements inciude civil

penalties. That court noted that it would have been

“nonsensical” to require Congress to make a detailed

itemization of requirements in federal law and the laws of

fifty states. /d., at 327.

Similarly, the court of appeals below acknowledged:

An ordinary reading of the phrase, “all .. .

requirements,” indicates that a civil penalty is a

“requirement” because a party violating the statute

will be required to pay the penalty.

DOE Pet. App. 10a. Thus, even the court of appeals realized

that the plain meaning of the words of RCRA encompasses

civil penalties.

Despite the admonitions of this Court to utilize the ordinary

meaning of the words in a waiver, Kosak, 465 US. at 853,

the court of appeals abandoned the ordinary meaning of

“requirements” in favor of a search for ambiguity. The first

reason cited for ignoring the plain meaning of the term

concerned some differences in the language of RCRA and

Clean Water Act waivers. DOE Pet. App. 11a. However, the

courts are not allowed to insert ambiguity into the otherwise

clear language of RCRA by looking to another statute. As

the Court stated in Yellow Cab Co., 740 U.S. at 550, the courts

may not whittle down a broadly worded waiver by resorting

to “refinements.”

By deviating from the plain meaning of “requirements,”

the court of appeals also violated the admonition in Turkette.

As discussed above, Turkette warns the courts to effectuate

the plain meaning of words of waiver unless there is a clear

Congressional mandate to differentiate from that plain

meaning. 452 U.S. at 580. The court of appeals found no

such clear mandate but disregarded the plain meaning of

“requirements” anyway.

The second reason given by the court of appeals for its

interpretation is the absence of a “specific mention” of

“monetary relief or civil penalties.” DOE Pet. App. 11a-12a.

This reason for declining to find.a waiver in 42 U.S.C. 6961

runs afoul of two principles elucidated in decisions of the

Court. First, Congress is not required to itemize each and

every item of waiver but instead may enact broad, sweeping

waivers. Yellow Cab, 340 US. at 548. Second, strict

construction may not be used to create exceptions to a

sweeping waiver unless Congress has expressly set forth

the exceptions in the statute. /d.; Kosak, 465 US. at 853.

Under these cases, the court below was not permitted to

speculate that the absence of the term “civil penalties” could

mean an exception for penalties, since Congress has created

a waiver for “all... requirements.”

The court of appeals thus went out of its way to find a

meaning for the waiver other than the one intended by

Congress. By struggling to find an ambiguity in the waiver,

the court of appeals has violated this Court's rules of statutory

construction and has thwarted Congressional intent.

The waiver in 42 USC. 6961 broadly requires federal

agencies to be treated “in the same manner, and to the same

extent” as the private sector. The court of appeals’ decision

nullifies this waiver and contradicts this Court's broad

construction of almost identical language in Goodyear

Atomic Corp. \n order to halt this preferential treatment of

polluting federal agencies, the State respectfully requests

that the Court reverse the court of appeals decision on this

issue.

D. The Post-Enactment Legislative Events Cited

By DOE Confirm Congress’ Original Intent To

Waive Immunity For State Hazardous Waste

Penalties.

The Court has used, or declined to use, post-enactment

legislative history in its deliberations depending on the

circumstances and reliability of the information. Compare

Tennessee Valley Authority v. Hill, 437 U.S. 153, 209 (1978),

with Russelio v. United States, 464 U.S. 16, 26 (1983).

As DOE notes, the conference committee report for the

1986 amendments to CERCLA states that “CERCLA, together

with RCRA, requires Federal facilities to comply with all

requirements, procedural and substantive, including fees and

penalties.” DOE Br. 40, n. 35; Conf. Rep. No. 962, 99th Cong.,

2d Sess. 242 (1986). A similar statement by a co-sponsor

of the CERCLA legislation went unchallenged during the

floor debates. 132 Cong. Rec. 28,430 (Oct. 3, 1986). Since

Congress designed CERCLA as a second hazardous waste

statute to complement RCRA, simultaneous discussion of

the two statutes was not unusual and should be afforded

some weight.

Although DOE contends that the CERCLA discussion of

penalties carries no weight (DOE Br. 40, n. 35), the

Department itself chooses to draw on post-enactment history.

DOE cites two pending RCRA bills, H.R. 2194 and S. 596,

as waivers which are clear due to their express references

to civi! penalties. DOE Br. 39, n. 34.

However, the House Committee report for H.R. 2194,

criticizing the judicial decisions restricting the RCRA waiver,

unequivocally declares that the broad 1976 waiver clearly

authorized penalties, stating:

The Committee endorses the Ohio and Maine

district court cases as correctly interpreting the

intent of Congress in enacting Section 6001. in the

Committee's view the language of the existing law

was sufficiently ciear to waive federal sovereign

immunity for all provisions of solid and hazardous

waste laws, including the imposition of criminal

fines, civil or administrative penalties and all other

sanctions. Thus, this legislation reaffirms existing

law....

H. Rep. No. 111 at 5. According to the report, H.R. 2194 is

necessary only due to the misinterpretation of the waiver

by a number of lower courts.* /d. The report specifically

endorses the district court decision in the case at bar as

the correct interpretation of the waiver. /d.

House committee reports accompanying earlier versions

of H.R. 2194 in past sessions have contained similar

language. H.R. Rep. No. 141, 101st Cong., 1st Sess 5 (1989);

H.R. Rep. No. 1060, 100th Cong., 2d Sess. 4 (1988). Both

reports endorse the district court decision below.

The committee reports describe, in stark terms, the effects

of the federal agencies’ continued illegal activities as

encouraged by the lower courts’ failure to enforce Congress’

waiver. Congressional investigation discovered that, at DOE

facilities, “contamination of soil, sediments, surface water

and groundwater, as well as vegetation and wildlife, is

extensive ... .” H.R. Rep. No. 111 at 3. The House report

also quoted from the Congressional study, which

summarized the results of DOE's unlawful conduct as follows:

... “At every facility the groundwater is

contaminated with hazardous chemicals. Most

sites in nonarid locations also have surface water

contamination. Millions of cubic yards of... .

* According to the Senate Committee report accompanying S. 596, the

purpose of the bill is to make the waiver “unambiguous.” S. Rep. No.

67, 102d Cong., 1st Sess. 1, 7 (1991). This ambiguity was not present

in the 1976 waiver, but was engrafted into the statute by the courts’

acceptance of inventive federal agency arguments. The Senate

committee discussions of ambiguity were made in the context of these

court misinterpretations rather than as statements by the committee

that the 1976 waiver is ambiguous as written. See S. Rep. No. 67 at

2, 4. The committee's view that the broad 1976 language effectuated

a complete waiver is embodied in its statement that the Solid Waste

Disposal Act [RCRA] and other pollution laws “all clearly specify that

those laws apply to Federal facilities in the same manner and to the

same extent as to all other persons.” /d., at 2. The committee concluded

that addressing these unfavorable court decisions was necessary due

to the “magnitude” of federal agency noncompliance with the law, citing

a report of “widespread contamination of the environment with toxic

chemicals...” and “potential human health threats.” /d. at 3.

hazardous wastes have been buried throughout

the complex, and there are few adequate records

of burial site locations and contents.”

ld. at 3-4. The study attributed this damage to “poor waste

management practices.” /d., at 4.

Once Congress amended the waivers in response to

Hancock and California, one would have expected federal

agencies to comply with RCRA and the Clean Water Act.

However, instead of complying, they have chosen to continue

their aggressive litigation against the waivers, expecting to

persuade the courts to adopt their strained interpretations

of the waiver language. As the Court noted in Northern

Securities, 193 U.S. at 359-60, one can almost always create

doubts about the meaning of a statute. The Court should

end the federal agencies’ reliance on the judiciary as the

buffer between them and the law.

CONCLUSION

The Court should reverse the judgment below with respect

to state hazardous waste penalties. In all other respects, the

judgment should be affirmed.

Respectfully submitted,

LEE FISHER

ATTORNEY GENERAL OF OHIO

By: JACK A. VAN KLEY

Assistant Attorney General

Environmental Enforcement Section

30 East Broad Street, 25th Floor

Columbus, Ohio 43266-0410

(614) 466-2766

Counsel of Record for Respondent

TIMOTHY J. KERN, Co-Counsel

TERRENCE S. FINN, Co-Counsel

September 13, 1991

a-1

1 APPENDIX

Pages 29-31 of Brief for Petitioner Environmental Protection

Agency in Environmental Protection Agency v. People of the

State of California, Case No. 74-1435 (Oct. Term, 1975)

a-2

within the context of the FWPCA, Section 402(b) not only

fails to support the court of appeals’ conclusion, but is

squarely against it.”*”

Section 505, 33 U.S.C. (Supp. Ill) 1365, is the only other

provision to which the court devoted any significant

attention.** However, that section affords little, if any, support

to the court of appeals’ position.

Section 505 is a rather complex multi-functional provision.

It is the only jurisdictional provision within the Act for civil

suits under the Act; it is the sole waiver of federal

immunity * from suit for civil

Tne court of appeals itself acknowledged the weakness of its own

decision in the absence of those supporting bases heretofore discussed:

Considered in the light of Sections 402 and 510, other

sections in the Act afford added support to petitioners’

interpretation of the term “requirements” in Section 313, though

the significance of each would have been less certain apart

from these two sections. (Pet. App. 22a-23a; emphasis

supplied.)

58 = Section 505(a) establishes jurisdiction in federal courts, limits that

jurisdiction to civil actions, eliminates the requirements of a minimal

amount in controversy and diversity of citizenship, and defines standing

for such an action.

The jurisdiction conferred by Section 505(a) is conditioned specifically

upon compliance with the sixty-day notice of suit prerequisite

established in Section 505(b).

Under Section 509(b), 33 U.S.C. (Supp. Ill), 1369(b), certain specific

actions of the Administrator can be reviewed exclusively in the

appropriate court of appeals on petition. The instant case focuses upon

one of the types of action identified in Section 509(b) for such treatment.

Another is a challenge to ai; individual permit. Section 509(b)(1)(F).

5° —s- That waiver is limited to actions against the federal government or

its agencies for violations of an effluent standard or limitation (Section

505(a)(1)) and actions against the E.PA. Administrator for failure to

perform non-discretionary functions under the Act (Section 505(a)(2)).

a-3

relief within the Act;* and it is the enforcement provision

designed to be used by the states to insure compliance with

Section 313, inter alia.®'

Section 505(f) refers, in a parenthetic clause, to Section

313, but this only supports petitioners’ position

» hp _ bow

Mt ener etohe ~

From the fact that by California law some substantive limitations may

be set following administrative hearings in which a discharger may

: participate, the court of appeals inferred a federal susceptibility to state

administrative procedures under the predecessor to Section 313, and

it used that inference as guidance in reaching its decision. (Pet. App.

; 9a)

The weakness of that approach lies with the fact that there is a marked

contrast between participation in hearings and a state permit. The latter

iS an instrument which may be issued or withheld, thereby giving the

States actual contro! over the operations of the federal government.

As to how a state will establish those standards with which federal

facilities must comply, Section 313 is silent; it assures only federal

compliance with state standards. It is not a guarantee that the states

will not have to modify their administrative practices in order to

accommodate the l!egai characteristics of the federal government, its

agencies, and its instrumentalities.

However, federal agencies must cooperate with the states with respect

to compliance. Executive Order 11752, Section 3(a)(2), 38 Fed. Reg.

34793, 34794. Hence, they are required to provide states with whatever

data are needed for standard setting.

*' The enforcement mechanism of Section 505(a) is available to the

states because a “State” is a “person” (Section 502(5), 33 U.S.C. (Supp.

: Il) 1362(5)), a “person” is a “citizen” (Section 505(g), 33 U.S.C. (Supp.

Ill) 1365(g)), and a citizen can bring suit under Section 505(a).

By providing states with this enforcement procedure through Section

505, Congress has eliminated what would otherwise appear to be a

loophole left because the Act does not extend state permitting authority

to federal facilites. By Section 313, as well as by Executive Order 11752,

supra, federal facilities are required to meet applicable substantive

j standards and limi-

a oie

a-4

regarding the enforcement function of Section 505. Borrowed

directly from Section 304(f) of the Clean Air Act, as amended,”

the federal facilities compliance reference in Section 505(f)

comes at the end of a list

(footnote 61 cont.)

tations. Hence, it would be redundant to impose upon them those same

requirements under the authority of a state permit. If a federal installation

fails to meet the relevant standards or limitations, it is not a state permit

which the state can enforce to secure compliance, but rather the federal

law through civil suit.

That Section 505 was intended to be the states’ enforcement

mechanism for federal facility compliance with Section 313 is made

abundantly clear by the legisiative history concerning the

corresponding provisions in the Clean Air Act, Sections 118 and 304,

42 U.S.C. 1857f and 1857h-2, respectively, as we pointed out in our

Brief (at pp. 24-26) in Kentucky ex rel. Hancock v. Train, supra.

The Clean Air Act's legislative history is quite relevant to the FWPCA

with respect to the “citizen suit” provision, since Section 505 of the

FWPCA is modeled upon Section 304 of the Clean Air Act. S. Rep

No. 92-414, 92d Cong., 1st Sess. 79 (1971); 2 Legis. Hist. 1497.

Section 304(f) of the Clean Air Act, 42 U.S.C. 1857h-2(f), reads as

follows:

(f) For purposes of this section, the term “emission standard

or limitation under this Act” means-

(1) a schedule or timetable of compliance, emission

limitation, standard of performance or emission standard,

(2) a control or prohibition respecting a motor vehicle

fuel or fuel additive, which is in effect under this Act

(including a requirement applicable by reason of section

118) or under an applicable implementation pan.

(emphasis supplied).

A comparison of the Clean Air Act's Section 304(f) with the FWPCA's

Section 505(f) (see Appendix, infra ) undercuts the court of appeals’

contention that the Water Act provision is in any way substantially different

in form or effect from its Air Act counterpart (Pet. App. 25a).

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