Amicus Curiae Brief — United States Department of Energy v. Ohio

“) CY) SEP 13 iggy

Nos. 90-1341 and 90-1517 | ggricg o¢ tye

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

UNITED STATES DEPARTMENT OF ENERGY,

Petitioner/Respondent,

vs.

STATE OF OHIO et al.,

Respondents/Cross-Petitioners.

BRIEF OF AMICI CURIAE IN SUPPORT

OF RESPONDENTS/CROSS-PETITIONERS

On Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

DANIEL E. LUNGREN GALE A. NORTON*

Attorney General of the State of Attorney Generai of the State of

California Colorado

RODERICK E. WALSTON RAYMOND T. SLAUGHTER

Chief Assistant Attorney General Chief Deputy Attorney General

THEODORA BERGER TIMOTHY M. TYMKOVICH

R. H. CONNETT Solicitor General

Senior Assistant Attorneys General MARTHA E. RUDOLPH

EDWIN F. LOWRY CYNTHIA M. VAGELOS

Deputy Attorney General MARY CAPDEVILLE

Department of Justice Assistant Attorneys General

Sacramento, California 94244 Natural Resources Section

Telephone: (916) 327-7876 se

110 Sixteenth Street, 10th Floor

Denver, Colorado 80202

Telephone: (303) 620-4511

*Counsel of Record

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............... |

ARGUMENT SUMMARY .................... 2

RS 4.8 hes 08 0scedeeeb iio eecéscccxi 5

I. WITHOUT THE THREAT OF

CIVIL PENALTIES, THE

FEDERAL AGENCIES WILL NOT

og ee ae 5

Il. ANALYSIS OF RCRA’S PLAINLY-

WORDED WAIVER OF

SOVEREIGN IMMUNITY IS NOT

AND SHOULD NOT BECOME A

SEARCH FOR AMBIGUITY. ....... 10

A. The Waiver of Sovereign

Immunity in § 6001 is Plain,

Broad, and Unmistakable. ..... . 12

B. "Penalties" Are Included in

RCRA’s Sovereign Immunity

Waiver Even Though They Are

Not Explicitly Listed in Section

SE Se ere 13

l. There is no requirement

that Congress delineate

“penalties” by name in

order to waive the

federal government’s

immunity to their

oo eee 14

III.

IV.

2. Congress’ use of an

exemplary list of

"requirements" cannot

be interpreted to mean

that all items not on the

list are implicitly

excluded from the

universe of

"requirements" to which

the federal government

1B GUINOGE, occ ccc ceees 17

IN ORDER TO GIVE MAXIMUM

SCOPE TO RCRA’S WAIVER OF

SOVEREIGN IMMUNITY,

CONGRESS APPROPRIATELY

RELIED ON THIS COURT'S

FOCUS ON THE WORD "ALL" IN

HANCOCK v. TRAIN. .. 2.622200 0 5+: 19

RCRA ALSO SUBJECTS FEDERAL

DEPARTMENTS AND AGENCIES

TO PENALTIES UNDER ITS

CITIZEN SUIT PROVISIONS. ....... 22

ABSENT AUTHORITY TO ASSESS

CIVIL PENALTIES AGAINST

FEDERAL FACILITIES, STATES

ARE UNABLE TO FULLY

ACHIEVE THE OBJECTIVE OF

THE CLEAN WATER ACT. ........ 23

A.

Congress has plainly required

federal facilities to comply with

the Clean Water Act. ......... 23

Civil penalties provide needed

incentive for federal agencies

to comply with the water

pollution control laws. ......... 25

od Congress assigned to the States

the primary responsibility to

administer and enforce water

pollution control programs

under the CWA, and, in

furtherance of this scheme,

Congress authorized States to

assess civil penalties against

federal facilities. ............. 28

DIU ws Sb db iis uevccececcccececcas 30

i

:

>

if

—~ Je

: ~ : » in a .

ee ae ee ee SS Oe 7 = ~

TABLE OF AUTHORITIES

Cases Page

Canadian Aviator, Ltd. v. United

Seates, 534 US. 21S, 222 (IDES) 2. ccc cccecss 11, 12

EPA v. California, 426 U.S. 200 (1976) ........ 6, 26, 27

Goodyear Atomic Corp. v. Miller,

Ce SEE Ski cc ccctictctecavaces 14-17

Hancock v. Train, 426 U.S.

DE BERGE chenewswancaeewe 3, 6, 13, 19-21, 27

Helvering v. Morgan’s, Inc.,

ee ey Es EE og Se wedeccdcdseseses 17

Highway and City Freight Drivers, et al.

v. Gordon Transporters, Inc.,

576 F.20 1286 (Gth Cir. 1978) ...... 2c ececccces 17

Kosak v. United States,

SEE 6656 geeeeeeeees vias ieeer 12

Legal Environmental Assistance Foundation

v. Hodel, 586 F. Supp. 1163 (E. D. Tenn. 1984) ...... 6

Maine v. Navy, 702 F. Supp. 322,

326 (D. Me. 1988), appeal pending

EE an eae s we c's oi b'c'eé e'eus 500% 13

Metropolitan Sanitary District of Greater

Chicago v. U.S. Department of Navy, 722 F.

Supp 1565, 1569 (N.D. Ill. 1989), reconsidered

in part 737 F. Supp. 51 (N. D. Ill. 1990) .......

Mitzelfelt v. Dept. of Air Force,

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

Puerto Rico Maritime Shipping Authority

v. LC.C., 645 F.2d 1102,

B558 @, BEGG Ge, TIED oc vc ccs ccccccces

Sierra Club v. United States Dep't. of Energy,

Civil Action No. 89-B-181 (slip op. at 15-16)

CFU By EUOED cc occcccccetvcedsccccnce

United States v. Earth Sciences, Inc..,

599 F.2d 368, 376 (10th Cir. 1979) ...........

United States v. Mitchell,

ey rene

United States v. Washington,

872 F.2d 874 (9th Cir. 1989) ...........005.

United States v. Yellow Cab Co.,

340 US. 543, 554-555 (1951) ........ 200 eee.

Statutes

Cd

ee de iro ciidedecvens

vi

ME II on oo oc ccecvecuuccucndce 29

PED Sich oes cek shed wiude ve 4, 5, 23, 30

Ey en tn See em Eee ES 24, 27

re ee a 26

RE ee eT 5, 23, 30

33 U.S.C. §§ 1251-1387 (1988) ................... 2

CN hee Eb rte ecu entuceawc ceeds 15

i ria bE Tale wade Wicd a en 20

Ge SPD bo cose dese’ 3, 10-12, 14, 16-18, 20, 30

SPE wen cr ds obcugn dn wh eace caw cus 18, 20

42 U.S.C. $§ 2011-2296 (1982) ................00. 6

42 US.C. $§ 6901-6992k (1988) .................. 2

Rules Page

40 C.F.R. § 123.27(a)(3) (1990) .......0.0..000.., 26

Vii

Other Authorities Page

50 Fed. Reg. 45736 and 47409 (1985) ........000 ae 6

52 Fed. Reg. 15937 (1987) .. 0... 5. c cece eee eee ees 7

Black’s Law Dictionary, Revised Fourth

SOS 0 13

EPA Federal Facilities Compliance Manual at I-1 .... 24

Federal Facilities Compliance Act of 1991;

Report from the Committee on Energy _

and Commerce to Accompany H.R. 2194, 102 Cong.,

Ist Sess. 102-111 (1991), at 3... ... cece ee eee eee )

GAO, Report to Congressional Requestors:

Stronger Enforcement Needed to Improve ‘

Compliance of Federal Facilities (1988) at3 ......... y

H.R. Rep. No. 1491, 94th Cong. 2d. Sess. 83-84,

reprinted in 1976 U.S. Code Cong. Ad. News 6321 ... 26

Report of the NGA-NAAG Task Force on

Federal Facilities, From Crisis to

Commitment: Environmental Compliance

at Federal Facilities (January, 1990) at7............ Y

S. Rep. No. 370, 95th Cong., Ist Sess. 67,

reprinted in 1977 U.S. Code Cong. & Admin.

ows 4506, GORR nc cccccccccccssssccccccsses 27

S. Rep. No. 414, 92nd Cong., 2d Sess. 64,

reprinted in 1972 U.S. Code Cong. & Admin.

PD occccbhecbee eee sebedesncnee 24, 25

Nos. 90-1341 and 90-1517

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 199]

UNITED STATES DEPARTMENT OF ENERGY,

Petitioner/Respondent,

VS.

STATE OF OHIO et al.,

Respondents/Cross-Petitioners.

BRIEF OF AMICI CURIAE IN SUPPORT

OF RESPONDENTS/CROSS-PETITIONERS

On Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

The States and Commonwealths of California,

Colorado, Alaska, Arkansas, Arizona, Connecticut, Hawaii,

Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland,

Michigan, Minnesota, Missouri, Montana, Nevada, New

Jersey, New Mexico, North Carolina, North Dakota, South

Carolina, Tennessee, Texas, Utah, Vermont, Virginia, and

Washington, file the following Memorandum Brief in support

of the position urged by the State of Ohio ("Ohio") in the

above-captioned case.

INTEREST OF AMICI CURIAE

Each of the 30 states and commonwealths joining this

brief as friends of the court faces problems of enormous

magnitude in enforcing state laws and regulations arising

under the Clean Water Act! and the Resource Conservation

and Recovery Act.° These problems are frequently

exacerbated by the presence in each state of what may be

the nation’s largest polluter: the United States Government.

In many states, the federal government is a substantial

discharger to state waters, and is one of the largest, if not the

largest, generator of hazardous waste. To make matters

worse, federal agencies have been among the most

recalcitrant of polluters. Without the sanction of civil

penalties, states will be hamstrung in their ability to compel

federal agencies to comply with the law. Thus, each of the

amici joining in this brief have an interest in the effective

enforcement of their state laws through the penalty process.

ARGUMENT SUMMARY

Federal agencies have strongly resisted the efforts of

states and the federal government to enforce environmental

laws. The Department of Energy (DOE) in particular has

demonstrated a long history of noncompliance. Civil

penalties are necessary to assure compliance’ with

environmental 'aws.

Inherent in the concept of sovereign immunity is the

sovereign’s ability to waive its immunity. RCRA’s waiver of

the sovereign’s protection against suit is plain, broad, and

yields the unmistakable conclusion that penalties against the

‘Water Pollution Prevention and Control Act (Clean Water Act or

CWA), 33 U.S.C. §§ 1251-1387 (1988).

*Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§

6901-6992k (1988).

federal government are included within its terms.*

In this case, the issue is not whether the federal

government has consented to be sued, or whether it has

consented to subject important federal programs to potential

interference from states through the judicial process. The

federal government concedes as much, recognizing that

RCRA has broad injunctive powers to which the Congress

has waived sovereign immunity. The only question here is

whether, in addition to exercising their injunctive powers,

States can levy monetary penalties against federal agencies

and instrumentalities that violate the law. Accordingly, this

Court need only look, as precedent directs, to the ordinary

meaning of the words Congress employed. Analysis that

searches for hidden ambiguities in the statute is unwarranted.

It leads to further litigation and promotes the drafting of

ever-more complex and convoluted statutes that defy

interpretation.

By subjecting the federal government to "all" RCRA

requirements, both substantive and procedural, Congress

Stated its intention that the federal government is subject to

penalties. Short of listing each and every possible variation

of "requirements" to which the federal government is subject,

it is difficult to construct a clearer waiver. In fact, Congress’

choice of language dovetails precisely with this Court’s

decision in Hancock v. Train, 426 U.S. 167 (1976), where the

failure to waive immunity for "all" requirements led this

Court to conclude that the Clean Water Act could not be

enforced against the federal government through the

permitting process.

"RCRA § 6001, 42 U.S.C. § 696i. The full text of § 6001 is

reproduced at p. 3a of the appendix in the brief of the petitioner, United

States Department of Energy.

Amici also urge this Court to affirm the decision of

the Court of Appeals as it relates to penalties under the

citizen suit provisions of RCRA. As with the general penalty

provisions of RCRA, amici do not see penalties as a means

to fund their state treasuries; rather, they see citizen suit

penalties as a valuable deterrent. Even when the penalty is

paid by the United States to the United States, the

inconvenience and embarrassment this process imposes on

the officials of the penalized agency acts as a deterrent.

The CWA also waives federal sovereign immunity,

expressly subjecting federal agencies to all water pollution

control laws, whether at the federal, state, interstate or local

level. The federal government is not questioning the amici’s

authority to sue the federal government for noncompliance

with the CWA, again conceding such authority by recognizing

the states’ ability to obtain injunctive relief against federal

agencies who violate the CWA. The issue instead is whether

states can impose civil penalties against the federal

government for violations of the water pollution control laws.

Civil penalties are a critical element to the successful

administration of the CWA. The CWA provides for civil

penalties and requires states to have the authority to collect

civil and criminal penalties to obtain federal approval of their

permit programs. By its terms, § 1323 of the CWA subjects

the federal government to the imposition of civil penalties.

The current language of § 1323 was crafted by Congress in

1977 in response to the federal government’s long-standing

failure to comply with the water pollution laws. This

provision specifically subjects the federal government to all

water pollution control laws, including civil penalties.

The ability to assess civil penalties-against the federal

government by necessity must extend to states because the

primary responsibility for administering the water quality

programs under the CWA, and the only responsibility for

enforcing these programs against the federal government,

rests with the states. The objective of the CWA could not be

fully realized without the authority of the states to impose

civil penalties against the federal government. Accordingly,

the amici states urge this Court to affirm the decision of the

Court of Appeals regarding the authority of states to impose

civil penalties under § 1323 of the CWA, and to recognize

the states’ authority to seek civil penalties pursuant to § 1365

of the CWA.

ARGUMENT

I.

WITHOUT THE THREAT OF CIVIL

PENALTIES, THE FEDERAL AGENCIES

WILL NOT OBEY THE LAW.

Although Congress has repeatedly commanded federal

agencies to comply with state and federal environmental

laws, the federal agencies routinely ignore these commands.

Their ability to brazenly violate these laws is bolstered by a

Department of Justice policy that prevents the

Environmental Protection Agency (EPA) from taking

unilateral enforcement action against a sister federai agency.

It is further bolstered by judicial decisions holding that the

waivers of sovereign immunity contained in RCRA and other

federal environmental laws do not extend to the imposition

of fines and penalties. With little to fear from EPA, and

without the prospect of being penalized for violating

environmental statutes, regulations, permits or administrative

orders, federal agencies have no incentive to divert attention

-- and resources -- from their "primary" missions in order to

comply with environmental requirements. The Department

of Energy’s history of attempts to avoid RCRA regulation

illustrate the problem.

This Court is already familiar with the federal

agencies’ reluctance to abide by the permitting requirements

of state air and water pollution control laws. Thus, when this

Court ruled in Hancock v. Train, 426 U.S. 167 (1976), and

EPA v. California, 426 U.S. 200 (1976), that the federal

government had not waived its sovereign immunity regarding

air and water quality permits, Congress reacted swiftly to

amend the waiver of immunity. Congress was also careful to

subject federal agencies to RCRA’s permitting requirements

when it first passed that Act.

The Department of Energy did not immediately take

steps to comply with RCRA’s permit requirements, however.

To the contrary, the Department asserted that the statute did

not apply to DOE because such application would be

inconsistent with the Atomic Energy Act (AEA), 42 U.S.C.

§§ 2011-2296 (1982) (AEA). Notably, EPA did nothing to

challenge this interpretation. However, the Department of

Energy’s position was quickly rejected by the federal district

court in Legal Environmental Assistance Foundation v. Hodel,

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

The Department next sought to limit RCRA’s

application to its activities through rulemaking, by redefining

"byproduct material," a term used in the Atomic Energy Act,

to encompass mixtures of radioactive and hazardous wastes.

50 Fed. Reg. 45736 and 47409 (1985). Because the AEA

reserves regulation of byproduct material at Department of

Energy facilities solely to Department of Energy, this

redefinition would have precluded RCRA jurisdiction over

such materials. When persons commenting on the

Department’s proposed definition pointed out that this

redefinition was inconsistent with Congressional intent

underlying the Atomic Energy Act, the Department of

Energy conceded the issue and promulgated a more

reasonable definition. 52 Fed. Reg. 15937 (1987).

Following this setback, the Department of Energy next

asserted that certain mixtures of hazardous wastes and

radioactive materials contained so much radioactive material

that they were not "wastes" at all and thus not subject to

RCRA, but "residues" that could be recycled. In ruling

recently that the Department of Energy had violated RCRA

by not obtaining a permit to store such residues at its Rocky

Flats, Colorado, plant, the federal district court chastised the

Department’s recalcitrance:

DOE has been duty bound for years to obtain

its permit. Nevertheless, the record in this

case shows a constant pattern of delay and

obfuscation....

Only on my questioning of government counsel

at the ... hearing did DOE cease its circuitous

reasoning and admit its undeniable RCRA

violation.

DOE's demonstrated attitude is that it is a

governmental agency that can avoid RCRA’s

mandates indefinitely with impunity....

Perhaps DOE’s attitude toward RCRA stems

from the lack of teeth in RCRA’s enforcement

mechanisms vis-a-vis DOE. Sovereign

immunity bars state imposed civil and criminal

penalties in actions against the DOE. [citation

omitted]

Sierra Club v. United States Dep’t. of Energy, Civil Action No.

89-B-181, slip op. at 15-16, (D. Colo. August 13, 1991). The

district court’s last statement, of course, was mandated by the

Tenth Circuit’s decision in Mitzelfelt v. Dept. of Air Force, 903

F.2d 1293 (10th Cir. 1990). In ordering DOE to obtain a

state RCRA permit for the residues within two years, the

court stated:

DOE’s ongoing disregard for RCRA’s linchpin

permit process has been flagrant. Absent

appropriate sanction, I have no credible reason

to believe that DOE will comply with a two-

year time requirement. Therefore, | conclude

that nothing less than the threat of shutdown

on noncompliance with this order will

effectively enforce the requirement that DOE

obtain a RCRA permit...

Sierra Club v. United States Dep't. of Energy, slip op. at 16-17.

As the court’s opinion makes clear, absent civil penalties, the

sanctions available to states to compel federal agencies to

comply with the law are few, extreme, and unwieldy in many

cases.

The Department of Energy’s response to state efforts

to enforce RCRA at its facilities reveals a pattern of delay

and litigation that seems calculated to defer until the latest

possible moment the time when it will actually have to

comply with the law’s requirements. Sadly, this pattern is not

limited to Department of Energy, nor to RCRA, but is

pervasive among federal agencies faced with the obligation

to comply with environmental requirements. According to

the EPA, the Department of Defense and the Department

of Energy’s rate of compliance with RCRA is 10 percent to

15 percent lower than that of private industry. Federal

Facilities Compliance Act of 1991; Report from the Committee

on Energy and Commerce to Accompany H.R. 2194, 102d

Cong., Ist Sess., Rep. No. 111 (1991) at 3 (hereinafter

Committee on Energy and Commerce Report). Federal

noncompliance with the CWA and state water quality acts is

even more egregious. Nationwide, federal facilities’

noncompliance rate with CWA environmental standards is

twice that of private industry. GAO, Report to

Congressional Requestors: Stronger Enforcement Needed to

Improve Compliance of Federal Facilities (1988) at 3. During

1986 and 1987, twenty percent of 150 major federal facilities

were not in compliance with the CWA. /d.

Under the "unitary executive" theory, Department of

Justice forbids the EPA from going to court against its sister

federal agencies. Its ability to require federal agencies to

comply with environmental statutes has frequently been

reduced to "jawboning" miscreant agencies and their facilities.

Report of the National Governor’s Association-National

Association of Attorneys General Task Force on Federal

Facilities, From Crisis to Commitment: — Environmental

Compliance at Federal Facilities (January, 1990) at 7. Thus,

under RCRA and the CWA, only the states are able to bring

federal agencies to court to enforce Congress’ mandate that

the federal government comply with all federal, state and

local requirements respecting these environmental laws.

Civil penalties are an essential tool in the enforcement

arsenal of amici’s environmental programs. Indeed, the

United States has argued in other enforcement cases, with

judicial approval, that environmental regulatory agencies

need both the ability to bring actions to prevent future

violations as well as the ability to punish offenders for past

violations by assessing civil penalties. United States v. Earth

Sciences, Inc., 599 F.2d 368, 376 (10th Cir. 1979). Without

the ability to seek and enforce penalties, injunctive relief is

the only practical remedy available to states where federal

facilities violate these laws. Although effective in stopping

continuing violations at an individual facility, an injunction

has little deterrent value. The facility which is found to have

violated the law and suffers an injunction is no worse off

than the facility which obeys the law in the first place, since

the only penalty imposed upon such polluters is that they

cease violating the law and correct past violations. As a

result, the threat of an injunction does little to promote self-

enforcement and voluntary compliance.

Civil penalties, on the other hand, act as a deterrent

and promote self-enforcement and voluntary compliance.

When violators are penalized for proven violations in

addition to being ordered to correct them, the proven

violator is left in a worse position than one who obeys the

law. Civil penalties, therefore, provide an effective deterrent

for violations not provided by injunctive relief alone.

Without the authority to impose civil penalties, the states’

ability to assure federal compliance with state laws governing

solid and hazardous waste and water quality is significantiy

undercut.

Il.

ANALYSIS OF RCRA’S PLAINLY-WORDED

WAIVER OF SOVEREIGN IMMUNITY IS

NOT AND SHOULD NOT BECOME A

SEARCH FOR AMBIGUITY.

Although lengthy, RCRA § 6001 is plainly worded,

10

and the words which should control this case are few. When

reduced to the elements that are essential to application of

state solid waste and hazardous waste penalty provisions, §

6001 states simply that federal departments "shall be subject

to and comply with all state .. requirements, both

substantive and procedural ... in the same manner, and to the

same extent, as any person is subject to such requirements."

Time and again, this Court has stated that a plainly

worded waiver of sovereign immunity should not bring with

it additional exceptions or further roadblocks to suit.

Instead, once authority is plainly given, it is liberally

construed. (See, e.g., United States v. Yellow Cab Co., 340

U.S. 543, 554-555 (1951) ["No sensible reason can be

imagined why the State, having consented to be sued, should

thus paralyze the remedy"}; Canadian Aviator, Lid. v. United

States, 324 U.S. 215, 222 (1945) ["[W]e think Congressional

adoption of broad statutory language authorizing suit was

deliberate and is not to be thwarted by an unduly restrictive

interpretation"]; United States v. Mitchell, 463 U.S. 206, 219

(1982) [""The exemption of the sovereign frorn 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.”}) Once it is ascertained that

Congress wrote a broad, unambiguous and comprehensive

waiver of sovereign immunity, the conclusion necessarily

follows that penalties are part of that waiver.

‘The import of additional parts of § 6001, represented by ellipses in

the main text herein, is discussed later in this brief.

1]

A. The Waiver of Sovereign

Immunity in § 6001 is Plain,

Broad, and Unmistakable.

The question before this Court is simply whether

penalties are one of the set of "all requirements” to which

Congress cecreed the federal government is subject. In

order to answer this question, an examination of the plain

meaning of the statute is essential, since in construing the

meaning of a statute, the courts ordinarily assume that

legislative intent is expressed by the ordinary meaning of the

words used. Kosak v. United States, 465 U.S. 848 (1948).

This Court, while "strictly construing” waivers of sovereign

immunity, has rejected overly restrictive interpretations based

simply on the fact that suits against the sovereign are at

issue. (Canadian Aviator, supra.)

In the case of RCRA § 6001, Congress declared that

the United States is subject to all requirements, both

substantive and procedural, in the same manner, and to the

same extent, as any person is subject to such requirements.

By its use of the word "all", Congress unmistakably expressed

its intent to enact the broadest possible waiver of sovereign

immunity, and to deprive agencies and departments of the

United States of any exemption not available to others who

are subject to solid and hazardous waste control laws.

Similarly, by covering the universe of substantive and

procedural requirements, Congress sought to avoid needless

inquiry concerning artificial distinctions relating to the nature

of the "requirements" to which the United States is subject.

Nevertheless, even though the Department of Energy

concedes that it is subject to “all” requirements (procedural

and substantive), it argues that penalties are not a

"requirement." Under the precedent discussed above, the

linchpin of analysis is whether a plain reading of

12

"requirements" includes penalties. If, as amici contend, it

does, then extended comparison to other statutes and

legislative history’ is unnecessary.

In "requirement," Congress deliberately chose a broad

word, whose ordinary meaning encompasses any mandatory

provision of law, including civil penalties. "Require" means

“to direct, order, demand, instruct, command, claim, compel,

request, need, or exact." Black’s Law Dictionary, Revised

Fourth Ed. at p. 1468 (emphasis added). "Requirements"

mean "something called for or demanded." Maine v. Navy,

702 F. Supp. 322, 326 (D. Me. 1988), appeal pending No. 91-

1064 (1st Cir.) A civil penalty mandated by statute is plainly

an order, demand or claim, and is therefore within the

common meaning of "requirement."

B. "Penalties" Are Included in

RCRA’s Sovereign Immunity

Waiver Even Though They Are

Not Explicitly Listed in Section

6001.

As described above, Congress’ broadly-written waiver

plainly includes penalties within the sweep of the meaning of

“all requirements." Indeed, "it is hard to imagine clearer

language short of listing every possible variation of such

requirements.” Maine v. Navy, supra, 702 F. Supp. at 333.

‘Amici believe that Congress should be able to rely on the plain

meaning of the words it used, especially when those words follow the

direction of this court in Hancock v. Train, 426 U.S. 167 (1976), discussed

later in this brief. Amici do not, however, mean to suggest that the

legislative history fails to support the conclusion that Congress intended

to subject the federal government to penalties under RCRA. This

analysis is ably presented by the State of Ohio and will not be repeated

here.

13

Although Congress is not required to delineate an all-

inclusive list of “every possible variation" defining “all

requirements," it is this shortcoming -- and Congress’ decision

instead to list non-exclusive examples of requirements® --

upon which the Department of Energy seizes to avoid

penalties as one of the requirements of state law to which it

is subject. (Petitioner’s brief, pp. 35 and 36.) Amici urge

this Court to reject this overly-restrictive interpretation otf

RCRA’s sovereign immunity waiver. The plaint that "civil

penalties” are not specifically listed in the RCRA waiver at

first blush seems appealing, since it seems little to ask

Congress to add an additional two words totaling only 14

letters to the statute. Unfortunately, the argument, when

carried to its logical conclusion, will preclude any categorical

waiver of sovereign immunity -- no matter how sweeping --

and invite litigation in every case. Moreover, as is addressed

in greater detail below, this argument ignores precedent from

this Court upholding penalties in a waiver where there is no

explicit mention of the word, and the argument seeks to

apply a principle of statutory construction which should not

be used to interpret a statutory list beginning with the word

“including,” as is contained in § 6001.

1. There is no requirement that

Congress delineate "penalties" by

name in order to waive the

federal government’s immunity

to their imposition.

This Court’s recent decision in Goodyear Atomic Corp.

*The parenthetical list of “requirements” in RCRA section 6001, 42

U.S.C. 6961, to which the federal government is subject is for all

substantive and procedural requirements, "(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) ....”

"4

I at a oe

_—

v. Miller, 486 U.S. 174 (1988), stands squarely for the

proposition that Congress need not expressly include the

word "penalties" in order to subject the sovereign to penalties

under state law. In Goodyear Atomic Corp., an injured

employee, suing under a state workers’ compensation

scneme, sought a supplemental award above the normal

compensation because his injury was caused by the failure of

his employer to comply with a specific state safety statute.’

Although the statute subjecting the federal government to

state worker compensation claims did not expressly authorize

such additional payments, or penalties, the court found as in

this case, that Congress simply subjected the federal

government to workers’ compensation laws at federal

premises "to the same extent as such laws are applied to

private facilities.” 40 U.S.C. § 290. The fact that immunity

from suits for penalties was not specifically waived was of no

consequence to this Court, which stated,

[the contention] cannot be squared with §

290’s plain language, which places no express

limitation on the type of workers’

compensation scheme that is authorized, or

with the statute’s history, which demonstrates

that, at the time of its enactment, a substantia!

number of States provided additional awards

“Although the workers’ compensation award was assessed against o

private corporation, the nature of its relationship to the Department of

Energy allowed it to assert completely whatever sovereign immunity was

possessed by the federal government. The opinion carefully states that

its analysis draws no import from the company’s private sector nature.

486 U.S. at 180-181, and n. 2.

"Although neither the state statute nor the majority opinion

characterize the supplemental awards as penalties, it is clear that they

are. They substitute for punitive damages and are referred tw as

penalties no fewer than twelve times in the dissent.

15

for violation of safety regulations, a matter of

which Congress was presumably aware.

486 U.S. at 183-184.

Similarly, RCRA § 6001 places no limitation on the

types of requirements to which the federal government was

subject -- only that they be applied to private parties as well.

And, Congress was undoubtedly aware of the penalty

provisions within RCRA itself, as well as the fact that state

Statutes would be modeled upon them.

In Goodyear Atomic Corp., this Court pointed out that

a workers’ compensation statute does not intrude significantly

into the mission of the federal agency, and is therefore

distinguishable from those involving "direct regulation of the

operation" where the state is "claiming the authority to

dictate the manner in which the federal function is carried

out." 108 S. Ct. at 1710, and n. 3. The Department of

Energy cannot reasonably argue that Goodyear Atomic Corp.

is distinguishable from this case on this basis. Although

RCRA does, to some degree, dictate the manner in which

federal facilities operate by requiring them to obey certain

pollution requirements, the states’ power to dictate is not

created by the penalty provision. As even the Department

of Energy concedes in its brief, pp. 35 and 36, Congress has

in fact already waived sovereign immunity for injunctive

relief, and thereby consented to direct regulation of the

manner in which the federal function is carried out, even to

the point of shutting down a facility.” Having waived its

immunity to suit in a manner which includes the potential of

“Although RCRA’s waiver of sovereign immunity with respect to

injunctive relief carries with it the threat of closing a federal operation

completely, amici know of no instance where a state has, in fact, sought

such relief through an injunction, much less succeeded in shutting down

a federal facility.

16

direct state intermeddling into federal operations through

injunctive relief, it cannot be said that subjecting tne federal

government to penalties involves any greater interference

with control of the federal function. Accordingly, the analysis

employed by this Court in Goodyear Atomic Corp. applies

equally to this case with the same conclusion: the federal

government is subject to penalties when it violates state

hazardous and solid waste control laws.

y & Congress’ use of an exemplary

list of "requirements" cannot be

interpreted to mean that all

items not on the list are

implicitly excluded from the

universe of "requirements" to

which the federal government is

subject.

Without so stating, the Department of Energy relies

upon the expressio unius est exclusio alterius rule of statutory

construction in arguing that, since Congress had specifically

mentioned reasonable service charges and various other

terms in the parenthetical list of § 6001", it implicitly

excluded ail other types of fees or penalties from the

potential universe of "requirements." The State of Ohio ably

demonstrates that this interpretation does not follow, even if

this unarticulated rule of statutory construction is*followed.

However, the rule is inapplicable. A long line of cases,

beginning in this Court, sensibly holds that the expressio unius

rule of statutory construction should not be used to interpret

a Statutory list beginning with the word "including." Helvering

v. Morgan’s, Inc., 293 U.S. 121, 125, n.1 (1934); Highway and

City Freight Drivers, et al. v. Gordon Transporters, Inc., 576

The text of the parenthetical list is contained in note 6, supra.

17

F.2d 1286 (6th Cir. 1978); Puerto Rico Maritime Shipping

Authonity v. 1.C.C., 645 F.2d 1102, 1112, n. 26 (D.C. Cir.

1981). Instead, the list of examples should be construed for

what it is -- an illustrative list which is not meant to limit the

broad range of "all requirements."

In a variation of the expressio unius theme, it is argued

that penalties are an enforcement mechanism, as opposed to

a "requirement," and, thus, all possible "enforcement

mechanisms" were not expressly waived in § 6001. Both the

Department of Energy, in arguments below, and the Ninth

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

1989), relied heavily on this distinction. However, in

distinguishing "requirements" from "enforcement"

mechanisms, one inevitably faces the insurmountable barrier

that Congress flatly stated in § 6001 that an enforcement

mechanism is in fact an example of a "requirement." Section

6001 explicitly waives immunity as to "all requirements, both

substantive and procedural (including ... provisions for

injunctive relief and such sanctions as may be imposed by a

court to enforce such relief) ....". 42 U.S.C. § 6961 (emphasis

added). On its face, then, Congress clearly contemplated

that the word "requirements" includes civil enforcement

mechanisms, and any distinction between civil penalties and

other "requirements" on this basis is logically untenable.

The evolution of the various sovereign immunity

waivers enacted by Congress in the past fifteen years in

response to judicial interpretation of such statutes reveals a

trend toward increasingly complex "list-like" provisions.

(Compare, for example, § 118 of the Clean Air Act as

enacted to its subsequent amendments.) Amici discern no

tangible evidence that this trend has resulted in any reduction

in litigation over the scope of sovereign immunity waivers or

any greater consensus as to their meaning. Indeed, a strong

18

case can be made that the ineluctable effect of overly

restrictive judicial interpretation is to cause Congress to enact

excessively complex laws which ultimately compel the courts

to engage in more, not less, interpretation. In other areas of

the law, such as the interpretation of contracts and other

legal instruments, modern courts have recognized that giving

undue weight to what is not written, as opposed to what is,

leads drafters away from plain and simple statements and

toward unfathomable legalese. As a result, contemporary

courts do not place undue emphasis on what could have

been written, but instead attempt to give the full intended

meaning to what was written. The Department of Energy’s

position here runs counter to that philosophy.

IN ORDER TO GIVE MAXIMUM SCOPE

TO RCRA’S WAIVER OF SOVEREIGN

IMMUNITY, CONGRESS APPROPRIATELY

RELIED ON THIS COURT'S FOCUS ON

THE WORD "ALL" IN HANCOCK v. TRAIN.

This Court’s decision in Hancock v. Train, 426 U.S.

167 (1976), is now a touchstone fer any analysis of statutes

relating to whether, and to what extent, Congress has

subjected the federal government to state regulation in order

to effect its stated purpose of achieving environmental

compliance. Hancock crystallizes the command that waivers

of sovereign immunity be "clear and unambiguous," 426 U.S.

at 179, and the Department of Energy cites the case for this

proposition. Elsewhere in this brief, amici argue that

RCRA’s waiver with respect to penalties is, in fact, clear and

unambiguous. Hancock has additional value in the present

analysis, beyond the command that a waiver be clear and

unambiguous.

19

Hancock analyzed a phrase remarkably similar to

RCRA’s § 6001. It involved the question whether federal

facilities were required to obtain state permits under § 118

of the Clean Air Act, 42 U.S.C. § 1857, as a condition of

operation. Section 118 stated, in relevant part,

Each department, agency, and instrumentality

of ... the Federal Government ... shall comply

with Federal, State, interstate, and local

requirements respecting control and abatement

of air pollution to the same extent that any

person is subject to such requirements.

After observing that "[t]here is no longer any question

whether federal installations must comply with established air

pollution control and abatement measures,” this Court

phrased the issye succinctly by stating "[t]he question has

become how their compliance is to be enforced." 426 U.S.

at 172. In determining that these standards could not be

enforced through a permitting process, the decision focused

on the word "all." This Court stated that § 118 was

"notable for what it does not state .... It does

not provide that federal installations ‘shall

comply with all federal state, interstate and

local requirements ..... Nor does it state that

federal installations ‘shall comply with all

requirements of the applicable _ state

implementation plan.” 426 U.S. at 182,

emphasis in original.

In part because of this omission, no enforcement

through permitting requirements was available against the

federal government. If there is a lesson in statutory

draftsmanship inherent in Hancock, that lesson is clear:

20

Congress should make sure to use the word "all" when it

seeks to waive sovereign immunity for all purposes. And,

that is precisely what it did in RCRA.

The Hancock opinion stresses, and, indeed, is based

upon the distinction between substantive requirements to be

achieved and the procedure to obtain compliance. Under

Hancock, entorcement mechanisms are procedural in nature,

and not covered by the limited sovereign immunity waiver

drafted by Congress in that case. 426 U.S. at 182-186. In

the case now before the Court the penalty provisions in

RCRA are also enforcement mechanisms, and, under the

Hancock analysis, are procedural. Recognizing this, Congress

unmistakably expressed its intent that the federal government

should be subject to civil penalties by providing a waiver for

“all... requirements, both substantive and procedural

respecting control and abatement of solid waste or hazardous

waste disposal...."

Thus, Congress responded to the second drafting

lesson apparent in the Hancock opinion: a complete waiver

of sovereign immunity should -- as it does here -- cover the

universe of substance and procedure. Short of providing an

exhaustive and comprehensive list of requirements -- a

drafting technique nowhere required in statutory law or case

precedent -- Congress did all it could, intelligently and

reasonably relying on the Hancock analysis, to enact as broad

and sweeping a waiver of sovereign immunity as possible.

21

IV.

RCRA ALSO SUBJECTS FEDERAL

DEPARTMENTS AND AGENCIES TO

PENALTIES UNDER ITS CITIZEN SUIT

PROVISIONS.

Amici agree with and adopt the analysis of the State

of Ohio concerning RCRA’s citizen suit provisions. In this

brief, amici will address only the seeming incongruity that

states would seek penalties against the federal government

which would then be placed in the federal treasury.

Despite the fact that penalties under RCRA’s citizen

Suit provisions accrue to the federal treasury, amici’s interest

in being able to seek such penalties is as strong as the

Department of Energy’s interest in opposing them. Amici

have no interest in funding state budgets through penalties

derived from federal violations of environmental laws. The

plain fact is that penalties increase compliance, and amici

seek the ability to obtain federal compliance through use of

all tools which Congress has placed at their disposal.

The purse into which citizen suit penalties are placed

-- the federal treasury -- does not eliminate the deterrent

value they present to the agency, the facility operator or base

commander. At a minimum, the responsible official! is faced

with the prospect of returning to Congress or his budget

office to explain why additional funds are needed to

accomplish the agency’s task. Penalties work on a variety of

levels, including pain, inconvenience, and embarrassment.

Further, the impact of penalties can still be substantial to the

individual agency. Thus, although the deterrent effect might

be less than a penalty which removes money from the federal

fisc, the deterrent effect remains, and amici urge this court

22

to give full import to Congress’ provision for citizen suits

under RCRA against the federal government.

V.

ABSENT AUTHORITY TO ASSESS CIVIL

PENALTIES AGAINST FEDERAL

FACILITIES, STATES ARE UNABLE TO

FULLY ACHIEVE THE OBJECTIVE OF

THE CLEAN WATER ACT."

A. Congress has plainly required

federal facilities to comply with

the Clean Water Act.

The Clean Water Act has as its objective the

restoration and maintenance of the chemical, physical, and

biological integrity of the Nation’s waters. 33 U.S.C. §

251(a). To achieve that objective, Congress set as a

national goal the elimination of the discharge of pollutants

into the nation’s navigable waters by 1985. 33 U.S.C. §

1251(a)(1). Although this aggressive goal has not been met,

it signifies Congress’ commitment that all water pollution be

eliminated. Congress granted no special exemption tor

federal facilities to disregard this national goal.

Unfortunately, federal facilities have not assumed the

full responsibility of complying with water pollution control

laws. To the contrary, federal facilities have, for decades,

lagged far behind nongovernmental facilities in such

"The amici states concur with Ohio’s position that the citizen suit

provision of the CWA, § 1365, authorizes states to seek civil penaltics

against the federal government. For the sake of brevity, however, the

amici will only discuss § 1323 of the CWA.

23

compliance. Recognizing the importance of federal facility

compliance to achieve the objective of the CWA, and the

failure of federal facilities to comply with water pollution

control laws, Congress amended the CWA in 1972 to waive

federal sovereign immunity for all federal, state, interstate

and local water pollution control laws. 33 U.S.C. § 1323(a).

Congress not only directed federal agencies to comply with

all water pollution control laws, it expected federal agencies

to lead by example:

This [federal facilities pollution control] section would

require every Federal agency with control over any

activity or real property to provide national leadership

in the control of water pollution in such operations.

S. Rep. No. 414, 92d Cong., 2d Sess. 64, reprinted in

1972 U.S. Code Cong. & Admin. News 3668, 3733. This

tederal leadership position has been affirmed by EPA:

The EPA Administrator has stated that Federal

facility compliance with pollution regulations should

be a model for the rest of the regulated community

and that they should lead the way in minimizing

environmental contamination.

EPA Federal Facilities Compliance Manual at I-1.

Federal agencies thus are required to comply with all

water pollution control laws completely and expeditiously.

B. Civil penalties provide needed

incentive for federal agencies to

comply with the water pollution

control laws.

Civil penalties are an appropriate and effective

enforcement tool that not only penalize for previous

violations, but serve as a deterrent against future misconduct.

Absent civil penalties, violators have little incentive to comply

with the law, knowing that only after they are found in

violation will they be required to comply with the law in the

future.

The effectiveness of civil penalties as a deterrent

makes them a critical element of the CWA’s water pollution

control program. Congress included civil penalties in the

CWA to encourage prompt compliance with its requirements.

The Committee believes that if the timetables

established throughout the Act are to be met,

the threat of sanction must be real, and

enforcement provisions must be swift and

direct. Abatement orders, penalty provisions,

and rigid access to the Federal District Court

should accomplish the objective of compliance.

S. Rep. No. 414, 92d Cong., 2d Sess. 64, reprinted in

1972 U.S. Code Cong. & Admin. News 3668, 3737.

Throughout the CWA, Congress has made clear the

importance of civil penalties in effectuating the goals of the

CWA. In section 402 of the CWA, the EPA Administrator

is given the authority to deny the approval of a state permit

program if the state fails to provide adequate authority "to

abate violations of the permit or the permit program,

25

including civil and criminal penalties and other ways and

means of enforcement.” 33 U.S.C. § 1342(b)(7) (emphasis

added). The EPA regulations promulgated under this section

require the state to possess the ability to assess and recover

civil penalties before the EPA will allow a state to administer

the CWA program. 40 C.F.R. § 123.27(a)(3) (1990). It is

clear that at a very minimum, Congress and the federal

agencies consider civil penalties an essential tool in the

proper administration of the CWA. Without the ability to

invoke civil penalties, a state will be denied all authority to

administer the CWA permit program.

The federal government has on previous occasions

itself emphasized the importance of civil penalties to the

proper administration of environmental laws. — In_ its

comments submitted to Congress during its consideration of

the Resource Conservation and Recovery Act, the

Department of Justice wrote:

the Department of Justice favors the inclusion of both

civil and criminal sanctions for the most effective

enforcement of environmental laws. It has been the

experience of the Department ... that both sanctions

are useful in different situations.

H.R. Rep. No. 1491, 94th Cong. 2d. Sess. 83-84,

reprinted in 1976 U.S. Code Cong. & Admin. News 6238,

6321.

Notwithstanding Congress’ 1972 directive that federal!

agencies comply with all water pollution control laws, federal

agencies convinced this Court that the 1972 version of the

CWA’s waiver of sovereign immunity did not extend to

procedural obligations, thereby foreclosing the imposition of

civil penalties against federal facilities. EPA v. California,

26

426 U.S. 200 (1976). Without the deterrent value of civil

penalties for violations of water pollution control laws,

federal agencies continued to ignore these laws. In response

to EPA v. California and to Hancock v. Train, 426 U.S. 167

(1976), Congress quickly a.eended the CWA, this time to

expressly authorize sanctions against federal facilities. 33

U.S.C. § 1323(a). Expressing the purpose of the

amendments, the Senate Committee stated:

This act has been amended to indicate unequivocally

that all Federal facilities and activities are subject to

all 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.

(Emphasis added. )

S. Rep. No. 370, 95th Cong., Ist Sess. 67, reprinted in

1977 U.S. Code Cong. & Admin. News 4326, 4392. See

Metropolitan Sanitary District of Greater Chicago v. U.S.

Department of Navy, 722 F. Supp 1565, 1569 (N.D. Ill. 1989),

reconsidered in part 737 F. Supp. 51 (N. D. Ill. 1990)

(assessing penalties against federal facilities for CWA

violations is entirely consistent with the goals of the CWA to

achieve compliance with new standards).

With the 1977 amendments, Congress attempted to

dispel any remaining doubts that it expected federal agencies

to be subject to sanctions, including civil penalties for the

violation of water pollution control Jaws. Notwithstanding

this renewed directive to federal agencies, however, tedera!

agencies continue to ignore Congress’ mandate. This

continuing disregard of the law is demonstrated in the

Department of Energy’s brief, p. 32, where it argues that the

27

United States is not subject to civil penalties at all under the

civil penalty provision of the CWA.

Congress authorized civil penalties in the CWA as a

deterrent to achieve its goal of eliminating all discharges of

pollution into the nation’s waters. Given the federal

agencies’ historic and continued resistance to environmental

regulation, it is likely that this goal will not be met if the

deterrent of civil penalties is not available against federal

facilities. Congress could not have intended this result.

ol Congress assigned to the States

the primary responsibility to

administer and enforce water

pollution control programs

under the CWA, and, in

furtherance of this scheme,

Congress authorized States to

assess civil penalties against

federal facilities.

Congress intended the states to have the primary

responsibility to administer and enforce water pollution

control programs under the CWA, limiting EPA’s role to the

supervision of the states.

It is the policy of the Congress to recognize, preserve,

and protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution, to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources, and to consult with the Administrator in

the exercise of his authority under this Chapter. It is

the policy of Congress that the States manage the

construction grant program under this Chapter and

28

implement the permit programs under sections 1342

[national pollutant discharge elimination system] and

1344 [dredge and fill] of this title.

33 US.C. § 1251(b). Despite this Congressional

scheme, states continue to be frustrated at the ongoing

failure of federal agencies to comply with the water pollution

control laws administered by the states, and with the

difficulty states encounter in inducing compliance. This

frustration has become more acute because of the current

policy of the Department of Justice which prohibits EPA

from bringing an enforcement action against a sister agency.

Thus, the states alone are left with the responsibility to

enforce compliance with water pollution control laws at

federal facilities.

The CWA goal of expeditiously eliminating all

discharges of pollution would be undermined if Congress

exempted federal facilities from compliance with the water

pollution control laws. Any absence of state authority to

assess Civil penalties against federal facilities would have the

effect of exempting federal facilities from compliance with

these laws, at least until the time the noncompliance 1s

detected. It is illogical to assume that Congress would have

pressed the responsibility to administer the quality contro!

program of the nation’s waters into the hands of the states

without giving them the full arsenal of enforcement

alternatives to assure compliance. Significantly, Congress has

amended the CWA twice, in 1972 and in 1977, each time to

make more clear its intent that federal facilities are not to be

immune from the full impact of the CWA and the water

pollution control laws arising thereunder. Clearly, Congress

intended states to have all the tools required to fully achieve

the goals of the CWA. Congress did not omit the necessary

component of civil penalties from the states’ enforcement

29

authorities as both the CWA and legislative history prove.

Thus, the amici urge this Court to recognize Congress’ intent

as reflected in the CWA, and hold that 33 U.S.C. § 1323, as

well as § 1365, authorize states to assess civil penalties

against federal facilities for violations of their water pollution

control laws.

CONCLUSION

The decision of the Court of Appeals as it relates to

penalties under the general waiver of sovereign immunity

contained in RCRA § 6001 should be reversed, and the

decision of the Court of Appeals as it relates to the citizen

Suit provisions for penalties should be affirmed.

The decision of the Court of Appeals as it relates to

penalties under the general waiver of sovereign immunity

cont ~ 24 in the CWA § 1323 should be affirmed, and this

Cor zed to hold that states may impose civil penalties

agains. .ne federal government under the citizen suit

provision of the CWA, § 1365.

Dated: September 13, 1991.

Respectfully submitted,

DANIEL E. LUNGREN GALE A. NORTON®

Attorney General of the State Attorney General of the State

of California of Colorado

RODERICK E. WALSTON RAYMOND T. SLAUGHTER

Chief Assistant Attorney Chief Deputy Attorney General

General

TIMOTHY M. TYMKOVICH

30

THEODORA BERGER Solicitor General

R. H. CONNETT

Senior Assistant Attorneys MARTHA E. RUDOLPH

General CYNTHIA MARIANTHE

VAGELOS

EDWIN F. LOWRY MARY CAPDEVILLE

Deputy Attorney General Assistant Attorneys General

Natural Resources Section

Department of Justice

Sacramento, California 94244 ae:

Telephone: (916) 327-7876

110 Sixteenth Street, 10th Floor

Denver, Colorado 80202

Telephone: (303) 620-4511

*Counsel of Record

ear.

ear: Mm

CHARLES E. COLE

Attorney General for the State

of Alaska

WINSTON BRYANT

Attorney General for the State

of Arkansas

WARREN PRICE, III

Attorney General for the State

of Hawaii

ROLAND W. BURRIS

Attorney Generai for the State

of Illinois

BONNIE J. CAMPBELL

Atiorney General for the State

of lowa

MICHAEL E. CARPENTER

Attorney General for the State

of Maine

DENNIS J. HARNISH

Assistant Attorney General

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of Michigan

GRANT WOODS

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Attorney General! for the

State of Indiana

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Commonwealth of Kentucky

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of Missouri

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of Nevada

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of New Mexico

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of North Dakota

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Attorney General and

Reporter for the State of

Tennessee

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Deputy Attorney General

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Attorney General for the State

of Utah

DENISE CHANCELLOR

Assistant Attorney General

MARY SUE TERRY

Attorney General for the State

of Virginia

PATRICK O’HARE

Senior Assistant Attorney

General

MARC RACICOT

Attorney General for the

State of Montana

ROBERT J. DEL TUFO

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State of New Jersey

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Attorney General for the

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State of South Carolina

DAN MORALES

Attorney General for the

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Assistant Attorney General

JEFFREY L. AMESTOY

Attorney General for the

State of Vermont

KENNETH O. EIKENBERRY

Attorney General for the

State of Washington

JAMES K. PHARRIS

Senior Assistant Attorney

General

JAY J. MANNING

Assistant Attorney General