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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0095%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 951

## Text

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TABLE OF CONTENTS

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0095%3A12. Public record. Not legal advice.