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

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TABLE OF CONTENTS

EPP Tee

fp ge 8) ree

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

ET Oe ee TT ee ee

CIVIL PENALTIES ARE AN ESSENTIAL COM-

PONENT OF AN EFFECTIVE REGULATORY

EE 7.2.2 's.¢ 64.00 oe 6 00d we 64:66 06

A. The Role of Civil Penalties to

Enforce Hazardous Waste Laws .

B. The Track Record of Federal

Facility Compliance ..........

THE RCRA CITIZEN SUIT PROVISION

EXPLICITLY WAIVES SOVEREIGN

a ee eh ae eke ah ole 0 000

A. — The Plain Language of the Citizen

Suit Provision Must Control . .

B. The Legislative History Supports

Assessment of Civil Penalties

Against Federal Facilities in

| ea

SECTION 6001 CLEARLY PROVIDES A

WAIVER OF SOVEREIGN IMMUNITY .....

A. The Plain Language of Section

6001 Supports Finding A Waiver

of Sovereign Immunity ...... 10

B. The Legislative History of RCRA

Reflects Congressional Intent to

Subject Federal Facilities to Civil

POREEEGD pwc cncsnvsucwtnrn 14

lV. EPA'S APPLICATION OF SECTION 6001

SHOULD RECEIVE DEFERENCE ....... 18

ee et 6: Perrier. 19

Table of Authorities

Page(s)

Cases

. ian Avi United § |

TT TTT 13

Chemical Manutact ' io

Natural Resources Defense Council, Inc..

— | LL NN NNN 18

EPA vy. California, 426 U.S. 200 (1976) .........00..... 14. 16,17

Hancock y. Train, 426 U.S. 167 (1976) «0... passim

Leaf v. Hodel, 586 F. Supp. 1163

ncnecenecsee 2

Maine vy, Dep't. of Navy, 702 F. Supp. 322

(D. Me. 1988), appeal filed (1st Cir No.

a scsesccnces passim

, 689 F. Supp. 760

a ncssonenecses passim

Ohio v, Dep't. » Energy, 904 F. 2d 1058

ee ccnsusccenes passim

P.C. Pfeiffer Co. vy. Ford, 444 U.S. 697 (1979)........... 12

Philbrook v. Glodgett, 421 U.S. 707 (1975) ooo... 14

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

a ceususunasavanooees ~

United States v. Ohio Barge Lines, Inc. ’

607 F. 2d 624 (3d Cir. 1979) oo..ccccccccccccccscsscsreceseeveee 13

United States v. Prescon, 695 F. 2d 1236

a. sssssecenccscnseces 8,9

Page(s)

Statutes and Regulations

Clean Air Act, 42 U.S.C. §7401 et seg.

es ee eecatenttntnninsintisagainieeennnn 4,14, 15

Comprehensive Response, Compensation

and Liability Act, 42 U.S.C. §9601 et seg.

Ges CD ecccccncncenenessessninnstitnnpicsemesessrnneness 4

Federal insecticide, Fungicide and Rodenticide

Act 7 U.S.C. §136 et seg.

F is CUED oniscendsetastanioninsmnetanenipasrentnniansngenrcempnenens 3

Federal Water Pollution Control Act, 33 U.S.C.

§1251 et seg.

ED ccitttrencetunnsiptitteninnteniieaiianenisiaemimienianniis 3

ee 16

Marine Protection, Research, and Sanctuaries Act,

ee es Se II, cteccrensncennnsnteniciceninnenesmemsmemeiiien 3

ly IED Secitcernninnstecrnniensntaimmnenmmnesieiiieinnes 4

Resource Conservation and Recovery Act, 42

U.S.C. §6901 et seg.

ID eeiricincccrceteninsencintitiovienineunniiils 8

| TE 8

| Ce 8

ED diiitsiniicriccensstersnieniniiniiianeal passim

ED es ee crntenececnencsccssssenseegepnstensensssenssentil passim

Toxic Substances Control Act, 15 U.S.C. §2601 et seq.

ED inccintisnennsicneenncncmncencionnmernnmniteimanets 3

iineicciernennnnnccnntcnnnrcntntsnininapenianiibaiiin 18

A ND cerecnsencnsccnsasennsnniiiminniitamiiiiiin 18

SS RET: 18

Page(s)

Levislative Material

Cleanup at Federal Facilities: Hearings on

H.R. 3781, H.R. 3782, and H.R. 3783, H.R.

3784, and H.R. 3785 Before the Subcom. on

Transportation, Tourism, and Hazardous

Materials, 100th Cong., 2d Sess. (1988)

(Statement of Roger J. Marzulla, Acting

Assistant Attorney General) ..................cccccccccceeeeeeeeeees 4

Cleanup at Federal Facilities: Hearings on

H.R. 3781, H.R. 3782, and H.R. 3783, H.R.

3784, and H.R. 3785 Before the Subcom. on

Transportation, Tourism, and Hazardous

Materials, 100th Cong., 2d Sess. (1988)

(Statement of Dan Reicher) ......................ccccccceeeeeeeees 5,6

132 Cong. Record 14918 (Oct. 3, 1986) .......... ee. 18

H.R. Cong. Rep. No. 830, 95th Cong..,

RRS CREE SS 15

H.R. Conf. Rep. No. 962, 99th Cong..,

a aiieaias sii tieeaeenihittcanitlinineiaiansinniaialiniaes 17

H.R. 294, 95th Cong., 1st Sess. (1977) .............cccceeee 15

H.R. 14496, 94th Cong., 2d Sess. (1976) ..............000 16

S. Rep. No. 67, 102d Cong., ist Sess. 4 (1991)......... 5

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

S. Rep. 370, 95th Cong., 1st Sess (1977). .............04 16

S. Rep. No. 414, 92d Cong., 2d Sess. (1972).............. 4

S. Rep. No. 988, 94th Cong., 2d Sess. (1976)............ 16

Miscellaneous

Black's Law Dictionary (5th ed. 1979) .............eceee 13

Webster's Third New Int'l, Dictionary (3d ed. 1981) ....11

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF ENERGY,

PETITIONER

V.

STATE OF OHIO, ET AL.

STATE OF OHIO, ET AL.,

CROSS-PETITIONERS

v.

UNITED STATES DEPARTMENT OF ENERGY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STATEMENT OF INTEREST

This amicus curiae brief is filed on behalf of the

Natural Resources Defense Council ("NRDC"),in support

of the State of Ohio. A written consent of all parties to

the filing of this brief has been obtained and filed with this

Court.

NRDC is a national environmental organization with

more than 150,000 members and a staff of 175 lawyers,

scientists, resource specialists and support personnel.

NRDC maintains offices in New York, New “ork; Wash-

ington, DC; San Francisco, California; Los Angeles,

California and Honolulu, Hawaii.

This Court's ruling on the issue of civil penalties

against federal facilities is of vital importance to NRDC.

The organization has iong been concerned about safety

and environmental problems at federal facilities, particu-

larly those operated by the Departments of Defense and

Energy. NRDC has brought enforcement actions under

the citizen suit provision of the Resource Conservation

and Recovery Act (“RCRA”), 42 U.S.C. §6972, including

cases against Department of Energy (DOE) facilities in

Oak Ridge, Tennessee and the Savannah River Plant in

South Carolina. In fact, an NRDC case in 1984 estab-

lished the applicability of RCRA to DOE facilities. See

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

NRDC's experience in enforcing RCRA against fed-

eral facilities is that despite the organization's best ef-

forts, and those of other environmental groups and many

states, mismanagement of hazardous waste is wide-

spread and continues to represent a serious public health

threat. The abatement of environmental violations of

federal facilities can only be achieved if all requirements

of state hazardous waste laws, both substantive and

procedural, are imposed against violating facilities. For

this reason, NRDC has a substantial interest in this

appeal and urges the Court, for the reasons set forth

herein, to adopt the position of the State of Ohio on all:

issues.

SUMMARY OF ARGUMENT

Congress has strong public policy reasons when it

enacted Section 6001 of RCRA, 42 U.S.C. §6961, to

enable states, as primary enforcers of RCRA, to seek

monetary penalties and thus maintain a credible deter-

rence against hazardous waste law violations. Enforce-

ment without penalties cannot effectively deter future

violations. Without penalties, the enforcement program

is simply without serious force and effect, nor is the

responsibility for such violations fairly shared throughout

the regulated community. Congress plainly waived

sovereignimmunity from civil penalties for federal facilities

both with respect to Section 6001 as well as the RCRA

citizen suit provision, 42 U.S.C. §6972. This intent is

evident by the plain language and legislative history, as

well as the historical context in which Congress consid-

ered the compliance record of federal facilities and the

obvious need for appropriate penalties.

Finally, the Environmental Protection Agency's

("EPA") implementation of RCRA demonstrates that the

agency responsible for implementation of this critical law

clearly believes that federal facilities are subject to civil

penalties for violations of hazardous waste laws.

ARGUMENT

1. CIVIL PENALTIES ARE AN ESSENTIAL COM-

PONENT OF AN EFFECTIVE REGULATORY

SCHEME

A. The Role of Civil Penalties to Enforce Haz-

ardous Waste Laws

The imposition of civil penalties for violations of

federal environmental laws is deeply embedded in this

nation’s history of environmental enforcement. See, e.g.,

Clean Water Act, 33 U.S.C. §1319; Toxic Substances

Control Act, 15 U.S.C. §2615; Federal Insecticide, Fun-

gicide and Rodenticide Act, 7 U.S.C. §1361; Clean Air

Act, 42 U.S.C. §7413; Marine Protection, Research, and

Sanctuaries Act, 33 U.S.C. §1415; Resource Conserva-

tion and Recovery Act, 42 U.S.C. §6928; and the Com-

prehensive Environmental Response, Compensation and

Liability Act, 42 U.S.C. §9603(b).

The ineffectiveness of environmental laws absent

strong penalties was recognized by Congress as early as

1972, when the Senate Public Works Committee con-

cluded that federal water pollution control statutes prior

to 1972 had substantially failed:

The Committee further recognizes that sanctions

under existing law have not been sufficient to

encourage compliance with the provisions of

[the] Federal Water Pollution Control Act. .. .

The Committee believes that if the timetables

established throughout the Act are to be met,

the threat of sanction must be real, and enforce-

ment 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 at 8730-31.

The Department of Justice ("DOJ"), while steadfastly -

opposed to imposition of civil penalties upon federal

facilities, frequently relies upon its record of aggressively

seeking civil and criminal sanctions for violations of

federal environmental law. See Cleanup at Federal

Facilities: Hearings on H.R. 3781, H.R. 3782, H.R. 3783,

H.R. 3784, and H.R. 3785 Before the Subcom. on Trans-

portation, Tourism, and Hazardous Materials, 100th

Cong., 2d Sess. (1988)(Statement of Roger J. Marzulla,

Acting Assistant Attorney General). EPA shares the belief

that sanctions for non-violators are essential, asserting

recently that “penalties serve as a valuable deterrent to

noncompliance and to help focus facility managers’

attention on the importance of compliance with environ-

mental requirements." S. Rep. No. 67, 102d Cong., 1st

Sess. 4 (1991). Since civil penalties are an important

component of the regulatory scheme, exclusion of such

sanctions when pursuing federal violators leaves a gaping

hole in the environmental compliance program.

B. The Track Record of Federal Facility Com-

pliance

The importance of penalties to coerce compliance is

vividly illustrated in the case of federal facilities. By the

late 1970's, it had become clear to the Congress that

many federal facilities had fallen into serious non-compli-

ance with federal environmental laws. It is not surprising

that as a result of the cavalier attitude by federal facilities,

a decade later the nation is saddied with billions of

dollars in cleanup costs and a substantial threat to the

public health. Hearing Before the Subcomm. on Trans-

portation, Tourism, and Hazardous Materials at 174

(Statement of Dan Reicher).

While citizen groups continue to enforce RCRA

against the federal government, the practical realities are

that without a strong state enforcement presence, com-

prehensive and effective compliance is difficult if not

impossible. Like most major environmental statutes,

RCRA contemplates a multi-tiered enforcement scheme

with shared authority among EPA, the states and citizen

groups. Since the federal government has absenteditself

from seeking penalties against federal facilities - as

illustrated by its opposition in this case - states and

citizen groups are left to police violating federal facilities

on their own. With severely limited resources, citizen

groups depend upon effective and forceful state enforce-

ment programs, which are already overtaxed in their

ability to take up where EPA has left off. Id. at 183.

Clearly, citizen suit authority under RCRA was meant

to complement, not replace, the state and federal ability

to seek strong sanctions against violators. If the state is

denied the power to impose civil penalties, non-compli-

ance will continue. In light of a federal government that

refuses to act, states are the only governmental entities

with effective power and adequate resources to force

federal facilities to comply with environmental standards.

The facts in this case dramatically illustrate both the

extent of the threat of envircnmental harm caused by

federal facilities as well as the egregious conduct that will

remain unabated unless the states have the ability to

seek deterrence through penalties. Indeed, the facts of

this case are not unique. EPA recently reported, in

preliminary federal facility compliance statistics, that 63%

of federal treatment, storage, or disposal facilities were

found to be in violation of RCRA during fiscal year 1989.

S. Rep. No. 67 at 4. During that same time period, 38%

of private facilities, clearly subject to penalties under

federal and state law, were found to be in violation. Id.

This clear disparity illustrates what can occur when pen-

alties are unavailable for an entire class of violations

through a double standard of enforcement.

Hazardous waste violations in this case are pro-

found. Without the ability to seek such penalties and

abate such violations, a state’s enforcement powers will

be severely curtailed and a substantial number of serious

hazardous waste violations would remain beyond the

reach of adequate punishment.

ll. THE RCRA CITIZEN SUIT PROVISION EXPLICIT-

LY WAIVES SOVEREIGN IMMUNITY

A. The Plain Language of the Citizen Suit

Provision Must Control

As the Sixth Circuit noted below, "Congress clearly

waived sovereign immunity for civil penalties in the citizen

suit provision of [RCRA]." Ohio v. U.S. Dep’t of Energy,

904 F.2d 1058, 1064 (6th Cir. 1990). The plain language

of Section 7002, 42 U.S.C. §6972, gives Ohio authority to

bring a citizen suit seeking civil penalties to enforce state

environmental laws against a federal facility.

Section 7002 provides, in pertinent part:

... any person may commence a civil action on

his own behalf -

(1)(A) against any person (including (a)

the United States, and (b) any other govern-

mental instrumentality or agency, to the extent

permitted by the eleventh amendment to the

Constitution) who is alleged to be in violation of

any permit, standard, regulation, condition,

requirement, prohibition, or order which has

become effective pursuant to this chapter; . . .

The district court shall have jurisdiction,

without regard to the amount in controversy or

the citizenship of the parties, to enforce the

permit, standard, regulation, condition, require-

ment, prohibition, or order, referred to in para-

graph (1)(A)15 . . . as the case may be, and to

apply any appropriate civil penalties under

ion 692 n f this title.

42 U.S.C. §6972 (emphasis added).

Since “any person" may bring a citizen suit, and a

State is included within the general definition of “person”

under RCRA, 42 U.S.C. §6903(15), Ohio may properly

bring a citizen suit to enforce its environmental laws

against the DOE. Moreover, under Section 7002, the

State of Ohio is empowered to seek civil penalties under

Section 3008, 42 U.S.C. §§6928(a) and (g). Therefore,

the clear language of the statute establishes that federal

facilities are subject to suit, including a suit seeking civil

penalties under Section 3008, 42 U.S.C. §§6928(a),

692.4(g).

Based on the language of Section 3008, the DOE

argues that federal facilities are not subject to civil penal-

ties under Section 7002 citizen suits. Petitioner’s Brief,

Record at 41. The United States is excluded from the

definition of “person” subject to civil penalties under

Section 3008. See 42 U.S.C. §§6928(a) and (g), 6903(1-

5). On this basis, the DOE concludes that federal facili-

ties are not subject to civil penalties under RCRA citizen

suits. The DOE’s interpretation of Section 7002, how-

ever, is at odds with the plain language of the provision.

The DOE’s conclusion fails to take into consideration

the language and structure of the RCRA citizen suit

provision. As noted above, the United States, as well as

any government agency, is specificallysubjectto a citizen

suit under Section 7002. "Section 7002 incorporates the

civil penalty sections, not vice versa." Ohio v. DOE, 904

F.2d at 1065. As the Tenth Circuit recently recognized in

holding the parallel Clean Water Act ("CWA") citizen suit

provision applicableto federal facilities on a similar set of

facts, "a specific statutory provision will govern notwith-

standing the fact that a general provision, standing alone,

may include the same subject matter." Sierra Club v.

Lujan, 931 F.2d 1421, 1427 (10th Cir. 1991), citing United

States v. Prescon, 695 F.2d 1236, 1243 (10th Cir. 1982).

Thus, the specific definition of "person" within Section

7002, which includes the United States, controls over the

more general definition of "person" applicable to Section

3008. Based on this analysis, "[t]he fairest reading of

[the RCRA citizen suit provision] includes the United

States in the application of civil penalties." Ohio v. DOE,

904 F.2d at 1064-65.

B. The Legislative History Supports Assess-

ment of Civil Penalties Against Federal

Facilities in Citizen Suits

Although the legislative history concerning Section

7002 is not extensive, it does establish Congressional

intent to subject federal facilities to civil penalties under

the RCRA citizen suit provision. During the process of

amending RCRA in 1984, the Senate Committee stated:

Either a noncomplying agency [or] the Adminis-

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

Suit and penalty provision of section 7002. To

assure that there is no confusion as io 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). As

the Sixth Circuit noted below, this “statement shows the

Senate's intent that civil penalties would be available in a

citizen suit against the United States." Ohio v. DOE, 904

F.2d. at 1065.

Consequently, based on the plain language of

Section 7002 and legislative history, it is clear that Con-

gress intended to waive sovereign immunity to allow the

10

recovery of civil penalties in citizen suits against federal

facilities.

lll, SECTION 6001 CLEARLY PROVIDES A WAIVER

OF SOVEREIGN IMMUNITY

A. The Plain Language of Section 6001 Sup-

ports Finding A Waiver of Sovereign Im-

munity

The language of Section 6001 of RCRA, 42 U.S.C.

§6961, provides a clear waiver of sovereign immunity.

Section 6001 provides, in pertinent part:

Each department, agency, and instru-

mentality of the executive, legislative, and judicial

branches of the Federal Government (1) having

jurisdiction over any solid waste management

facility or disposal site, or (2) engaged in activity

resuiting, or which may result, in the disposal or

management of solid waste or hazardous waste

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

interstate and local requiremen

ntiv n if ral_(includin n

requirement for permits or reporting or any

rovisions for injunctive relief an h_sanc-

tions as may be imposed by a court to enforce

such relief), respecting control and abatement of

solid waste or hazardous waste disposal in the

same manner, and to the same extent, as any

person is subject to such requirements, includ-

ing the payment of reasonable service charges.

Neither the United States, nor any agent, em-

ployee or officer thereof, shall be immune or

exempt from any process or sanction of any

State or Federal court with respect to the en-

forcement of any such injunctive relief.

11

42 U.S.C. §6961 (emphasis added).

In Ohio v. U.S. Dep't of Energy, 689 F. Supp. 760

(S.D. Ohio 1988), the District Court ruled that the lan-

guage of Section 6001, considered in the context it was

written, provides a sufficiently explicit waiver of sovereign

immunity to impose liability upon the United States for

civil penalties based on violations of state hazardous

waste law. The District Court correctly found a clear

waiver of sovereign immunity based on the plain lan-

guage of the statute. Id. at 764-65.

Use of the language “all. . . requirements" evinces

an intent to encompass civil penalties by the very mean-

ing of the word "requirements." The accepted usage of

the word "requirement" is “something called for or de-

manded: a requisite or essential condition"; a “requisite”

is something “required by the nature of things or by

circumstances or by the end or view: essential, indispen-

sable, necessary.” Webster's Third New International

Dictionary 1929 (3d ed. 1981). The verb form “to require”

means “to impose a compulsion or command upon (as

a person) to do something; demand of one that someth-

ing be done or some action taken: enjoin, command, or

authoritatively insist that someone do something." Id.

Civil penalties imposed by a state to enforce state

envircimental laws “are obviously a form of enforcement

requirement intended ‘to impose a compulsion or com-

mand upon [someone] to do something’ as the circum-

stances may require." Maine v. Dep't of Navy, 702 F.

Supp. 322, 326 (D. Me. 1988), appeal filed, (1st Cir. No.

CA86-00211). The District Court in Maine v. Dep't of

Navy concluded that "civil penalties are clearly encom-

passed within the language ‘all . . . requirements, both

substantive and procedural.” Id. at 327.

12

The conclusion that civil penalties are included within

the term “requirements"is underscored by the parentheti-

cal included in the statute. The parenthetical in Section

6001 is merely an example of such “requirements,” and

should not be construed to suggest that Congress

intended that such sanctions be listed at the exclusion of

others. Id. at 327. This interpretation is supported by

language in the statute. The court below interpreted the

term “including”in the context of Section 6001 to mean

that the examples listed are merely illustrative and not

exhaustive. Ohio v. Doe, 904 F.2d at 1063, citing P.C.

Pfeiffer Co. v. Ford, 444 U.S. 69 at 77 n.7 (1979).

Indeed, in drafting the RCRA federal facilities provision,

“Congress used comprehensive and encompassing

language without limitation: ‘all ... State ... require-

ments, both substantive and procedural.’ Any first year

law student would think that language covered the univer-

se; there is no reason to think that the statutory drafters

had any other understanding.” Maine v. Dep't of Navy,

702 F. Supp. at 338. Under this reading, civil penalties

clearly fall within the meaning of “requirements.”

An explicit waiver of sovereign immunity may result

from either a detailed accounting of each and every

“requirement” that may be imposed upon the federal

government or, in this case, by an all encompassing

provision that has been properly described as a “single

stroke." Id at 327. “It would be nonsensical to require

Congress to make a detailed punchiist of all of the

‘requirements’ set out in the entire body of environmental

law of the federal government and each of the fifty

states.” Id.

Even if the parenthetical in Section 6001 were

construed as representing a finite list of “requirements,”

imposition of civil penalties upon federal facilities would

13

not be inconsistent with such an interpretation because

of the statute’s reference to “sanctions.” The statute’s

reference to such "sanctions"in the context of enforcing

injunctive relief does not mean that Congress meant that

only those types of sanctions are permissible under the

section. To the contrary, the commonly understood

“meaning of “sanctions” includes penalties and fines

irrespective of the form of relief sought. See Black’s Law

Dictionary 1203 (5th ed. 1979) ("sanctions" defined as

“part of a law which is designed to secure enforcement

by imposing a penalty for its violation. . . ."). Sanctions

are set Out as an illustration of what the statute means by

“requirements.”

Finally, courts will interpret statutory language to

avoid unreasonable results. U.S. v. Ohio Barge Lines,

Inc., 607 F.2d 624, 629 (3d Cir. 1979). Under this rule of

Statutory construction, the parentheticalcannot represent

an exhaustive list of requirements covered by the statute.

The statute clearly states that “all requirements, both

substantive and procedural" are covered. It is inconsis-

tent with this language to read the parenthetical intorma-

tion as an exhaustive list. "[A]ll requirements" cannot be

satisfied by federal facilities adhering to the four listed

examples. To preserve the wide array of requirements

clearly applying to federal facilities, the statute can only

be read in a manner that finds the types of requirements

listed in the statute illustrative in nature. Considering this

broad grant, the Court must not carve out exceptions

and thereby thwart Congress’ clear intent. Canadian

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

14

B. The Legislative History of RCRA Reflects

Congressional Intent to Subject Federal

Facilities to Civil Penalties

Courts are required to interpret statutes in a manner

that honors congressional intent. Philbrook v. Glodgett,

421 U.S. 707, 713 (1975). A review of the legislative

history of RCRA, as well as an analysis of the historical

context of the sovereign immunity issue at the time RCRA

was adopted, demonstrates that Congress clearly in-

tended that federal facilities would be subject to all state

requirements, including civil penalties.

In June, 1976, the Supreme Court ruled that Section

118 of the Clean Air Act ("CAA"), 42 U.S.C. §7418, did

not require federal facilities to comply with state permit

requirements governing air emissions. Hancock v. Train,

426 U.S. 167 (1976). At the time Hancock was decided,

Section 118 provided that federal facilities must comply

“with Federal, State, interstate, and local requirements

respecting the control and abatement of air pollution."

The Court determined that sovereign immunity was not

waived by noting Congress’ failure to subject federal

facilities to “all Federal, State, interstate, and local re-

quirement.” id. at 182. Likewise, in an accompanying

decision, the Court held that the paraliel provision in the

CWA, providing that federal facilities “must comply with

Federal, State, interstate and local requirements,” also

failed to waive sovereign immunity. EPA v. California

426 U.S. 200 (1976).

In October 1976, shortly after the decisions in

Hancock and California, Congress considered, and

passed, RCRA. “In reaction to the [Hancock] decision,

Congress enacted language [in Section 6001] clearly

intended to obviate the effect of the distinction highlighted

in the [Hancock] opinion upon an effective comprehen-

15

sive waiver of sovereign immunity." Maine v. Dep't of

Navy, 702 F. Supp. at 327. Recognizing that Court

decisions required Congress to be more specific with

respect to waiving sovereign immunity for environmental

liability for federal facilities, Congress made clear that,

under RCRA, federal facilities shall be subject to “all. . .

requirements, both substantive and procedural . . . re-

specting control and abatement of solid waste or hazard-

ous waste disposal in the same manner and to the same

n n ni h h_require-

ments..." 42 U.S.C. §6961 (emphasis added).

The following year, in 1977, Congress amended the

federal facility provision of the CAA, “intend[ing to] fun-

damentally overrule the Supreme Court’s ruling in Han-

cock v. Train.” H.R. No. 294, 95th Cong., 1st Sess., 12,

reprinted in 1977 U.S. Code Cong. & Admin. News 1077,

1089 (emphasis added). Under the amended CAA,

federal facilities are subject to “all. . . requirements. . .

respecting the control and abatement of. . . pollution in

the same manner and to the same extent as any non-

governmental entity." 42 U.S.C. §7418 (emphasis

added). As the House report accompanying the 1977

Amendments makes clear, the CAA was amended to

ensure that “federal facilities and agencies may be

subject to injunctive relief... [and] civil or criminal

penalties." H.R. No. 294 at 200, reprinted in 1977 U.S.

Code Cong. & Admin. News at 1279 (emphasis added).

In 1977, the federal facilities provision of the CWA

was also amended “to conform with [the] comparable

provision in the Clean Air Act." H.R. Conf. Rep. No. 830,

95th Cong., 1st Sess., 93, reprinted in 1977 U.S. Code

Cong. & Admin. News 4424, 4468. As amended, the

CWA subjects federal facilities to “all. . . requirements

. . respecting the control and abatement of. . . pollution

16

in ner h n n

nongovernmental entity." 42 U.S.C. §1323 (emphasis

added). The Senate report accompanying the 1977

Amendments notes that the Act was amended because

“the Supreme Court . . . misconstrued the original intent"

of Congress to subject federal facilities and activities “to

all the provisions of State and local pollution laws." S.

Rep. 370, 95th Cong., 1st Sess., 67, reprinted in 1977

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

A careful review of the legislative history of Section

6001 of RCRA underscores the intent of Congress to

waive sovereign immunity with respect to civil penalties

for federal facilities. When the federal facility provision

was first considered by Congress, two bills were pro-

posed. The House Bill, H.R. 14496, 94th Cong., 2d.

Sess. (1976), exempted federal facilities from state law

and instead subjected such facilities to the exclusive

authority of EPA. H.R. No. 1491, 94th Cong., 2d Sess..,

49-51, reprinted in 1976 U.S. Code Cong. & Admin.

News 6238, 6287. Congress rejected the House Bill, and

instead adopted a broader, modified Senate version

which provided that federal facilities comply with “all

requirements, both substantive and procedural” of both

federal and state law. S. Rep. No. 988, 94th Cong., 2d

Sess. 23 (1976). When Congress adopted the compro-

mise language, it simply adopted the expansive term “all

requirements," thus creating a broad waiver.

In fashioning the language of the RCRA federal

facility provision, Congress was aware of the Court's

interpretations in Hancock and California. See H.R. Rep.

No. 1491 at 45, reprinted in 1976 U.S. Code Cong. &

Admin. News at 6283, (stating that "[a]fter several circuit

Court of Appeals reached conflicting decisions [regarding

the responsibilities of federal facilities to the implementa-

17

tion of state environmental laws], the United States

Supreme Court heard the cases and issued decisions" in

Hancock and California). Instead, the language of RCRA

requires federal facility to comply with all state require-

ments. Therefore, the RCRA federal facility provision, as

proposed by the Senate and adopted by Congress, was

not intended to perpetuate the Supreme Court’s restrict-

ed interpretation of a state’s ability to impose its environ-

mental laws on federal facilities. Instead, the language

exhibits a responseto the narrow Supreme Court reading

and a desire to allow states to impose all environmental

controls upon federal facilities.

Finally, Congressional action on federal statutes

taken after the adoption of RCRA in 1976 illustrates that

Congress intended to enact an explicit waiver of federal

facility liability under RCRA. The Conference report to the

federal SuperfundAmendment and ReauthorizationAct of

1986 provides that:

This clarifies that CERCLA, together with RCRA,

requires Federal facilities to comply with all

Federal, State and local requirements, proced-

ural and substantive, including fees and penal-

ties, except as provided in Section 121 [of

SARA].

H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. 242,

reprinted in 1986 U.S. Code Cong. & Admin. News 3276,

3335 (emphasis added). Congressional intent to waive

sovereignimmunity with respect to RCRA was echoed by

Senate Majority Leader Mitchell on the Senate floor when

addressing the Superfund amendments:

18

Section 6001 of the Resource Conservation

Recovery Act (RCRA) clearly states that federal

agencies are to be "subjectto, and comply with,

all Federal, State, interstate and local require-

ments, both substantive and procedural." This

Section, together with Section 120 of CERCLA,

can leave no doubt that federal facilities are

subject to State laws, including State fees and

penalties.

132 Cong. Rec. at 14918 (daily ed. October 3, 1986)

(Statement of Sen. Mitchell).

The legislative history, considered in its entirety,

clearly supports the conclusion that Congress intended

Section 6001 of RCRA to waive the sovereign immunity

of federal facilities with respect to civil penalties.

IV. EPA’S APPLICATION OF SECTION 6001 SHOULD

RECEIVE DEFERENCE

While it is apparent that certain federal agencies,

including the Departments of Energy, Defense, and

Justice, have taken the position that federal facilities are

beyond the reach of the civil penalties provision of RCRA,

the Court should show deference to the interpretation of

the agency charged with the enforcement of a statute, in ~

this case the EPA. Chemical Manufacturers Association

v. Natural R if Defen neil, Inc., 470 U.S.

116, 125 (1985). By regulation, a state hazardous waste

program must meet certain minimum requirements to

qualify for authorization, including the requirement that

States adopt adequate civil penaity requirements. 40

C.F.R. §271.16(a). Such penalties must be available

against any "person," defined in the statute to include “a

state or federal agency." 40 C.F.R. §§270.2, 271.2

(emphasis addedq).

19

In the past, EPA has defined "person" to include

federal facilities. For example, in Maine v. Dep't of Navy,

EPA referred the Navy’s violations of state hazardous

waste law to the State of Maine for prosecution under

State law for the express purpose of seeking civil penal-

ties for past violations. 702 F. Supp. at 337. By its very

conduct in Maine v. Dep't of Navy, EPA takes the posi-

tion - not shared by DOJ - that states may recover pen-

alties for non-complying federal facilities. The Court

should adopt EPA’s approach, and recognize the

significance of enforcing the laws in an even-handed

manner to protect human health and the environment.

CONCLUSION

For the foregoing reasons, NRDC respectfully

requests that this Court find that Congress has waived

sovereign immunity with regard to the imposition of civil

penalties for violations by federal facilities of state

hazardous waste laws.

Respectfully submitted,

Philip F.W. Ahrens, Ill

Robert E. Cleaves, IV

Janice E. Bryant

Pierce, Atwood, Scribner

Allen, Smith & Lancaster

One Monument Square

Portland, Maine 04101

Dan W. Reicher, Senior Attorney

Natural Resources Defense Council

Counsel for Natural Resources

Defense Counci!

September, 1991