Petition for Writ of Certiorari — Lujan v. Sierra Club

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0. JUL 29 199)

OFFICE OF THE CLERK

§u the Supreme Court of the UnittrStars

OCTOBER TERM, 1991

MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

Vi

SIERRA CLUB, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor General

JACQUES B. GELIN

ELLEN J. DURKEE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the federal facilities provision of the

Clean Water Act, § 313, 33 U.S.C. 1323, waives the

sovereign immunity of the United States from assess-

ment of civil penalties for violation of the Act.

2. Whether the citizen suit provision of the Clean

Water Act, § 505, 33 U.S.C. 1365, waives the sov-

ereign immunity of the United States from assess-

ment of federal civil penalties for violation of the

Act.

(1)

II

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

United States Department of the Interior; C. Dale

Duvall, the Commissioner of Reclamation; and the

United States Bureau of Reclamation were defend-

ants in the district court and appellants in the court

of appeals; the Colorado Environmental Coalition

was a plaintiff in the district court and appellee in

the court of appeals.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1988) -...0.2000.020.. 6

Ohio v. United States Dep’t of Energy, 904 F.2d

1058 (6th Cir. 1990), cert. granted, Nos. 90-

1341 & 90-1517 (June 3, 1991) ......000 3-4

Statutes:

Clean Water Act, 33 U.S.C. 1251 et seq.:

RS) hs T ) re 4,6,7

RN ns BO ec necancenncnnceccenccesvanece 5

§ 318(a), 33 U.S.C. 1823 (a) .....00.. ee... 2,3, 4,5, 41a

§ 505 (a), 33 U.S.C. 1865 (a) -.......02 2. 2, 3, 48a

Resource Conservation and Recovery Act, 42

Neen nennenbntecehiesnnnnsinnnins 6

Nee cc asniibiocaeesesnemmencen 3

(III)

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No.

MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

v.

SIERRA CLUB, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of Manuel Lujan,

Jr., Secretary of the Interior, et al., petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Tenth Circuit

in this case.

OPINIONS BELOW

The decision of the court of appeals (App., infra.,

la-19a) is reported at 931 F.2d 1421. The decision

of the district court (App., infra., 20a-32a) is re-

ported at 728 F. Supp. 1513.

JURISDICTION

The judgment of the court of appeals (App., infra,

39a) was entered on April 30, 1991. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254

(1).

(1)

2

STATUTORY PROVISIONS INVOLVED

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

Act (CWA), 33 U.S.C. 1323(a), 1865(a), are re-

produced at App., infra, 4la-44a.

STATEMENT

This case raises the question whether Sections 313

(a) and 505(a) of the Clean Water Act (CWA), 33

U.S.C. 1323(a) and 1365(a), waive the sovereign

immunity of the United States from civil penalties

assessed for violations of a federally-issued permit

authorizing the discharge of pollutants.

1. Sierra Club and Colorado Environment Coali-

tion brought this action under Section 505(a), the

citizen suit provision of the CWA, 33 U.S.C. 1365

(a), alleging violations by the Department of the

Interior of a federally-issued CWA permit. The } er-

mit was issued by the U.S. Environmental Protec-

tion Agency in 1975 for discharges from a mine

drainage tunnel located near Leadville, Colorado, and

owned by the Bureau of Reclamation of the Depart-

ment of the Interior. Sierra Club sought injunctive

relief and civil penalties for violations of the permit.

App., infra, 2a-3a.

In the district court, the United States moved to

dismiss the claim for civil penalties as barred by the

federal government’s sovereign immunity. The court

denied the motion, holding that federal sovereign im-

munity was waived by Sections 313(a) and 505(a)

of the CWA as to nenalties. App., infra, 20a-32a.

The parties subsequently entered into a consent de-

cree, which settled all claims but those relating to

civil penalties. App., infra, 4a. As part of the de-

cree, the Department of the Interior agreed to con-

struct a water treatment facility. Consent Decree at

3

3-4. On May 24, 1990, the district court approved

the consent decree and also entered partial summary

judgment in which it declared that the Department

of the Interior and the Bureau of Reclamation are

liable for at least 6333 violations of the CWA between

January 13, 1984, and May 12, 1989. Furthermore,

the court held that violations are continuing and that

federal defendants shall be liable for future viola-

tions as they occur. App., infra, 35a, 37a-38a.

The district court certified an interlocutory ap-

peal of the civil penalties issue under 28 U.S.C.

1292(b), and the Tenth Circuit granted the unop-

posed petition of the United States for permission to

appeal.

2. The Tenth Circuit affirmed, holding that See-

tions 318(a) and 505(a) of the CWA, 33 U.S.C.

1323(a) and 1365(a), authorize the assessment of

civil penalties against federal agencies for CWA vio-

lations. App., infra, la-18a.

With respect to Section 313(a), the court relied on

the statutory language stating that federal agencies

“shall be subject to, and comply with, * * * process

and sanctions respecting the control and abatement

of water pollution.” 33 U.S.C. 1323(a). The court

rejected the government’s argument that the term

“sanctions” as used in the above sentence is part of

a unitary expression—‘“process and sanctions’”—in-

tended to include injunctive relief and only such

sanctions as are necessary to enforce compliance with

such relief. App., infra, 9a. Instead, the court held

that the term “sanctions,” as used i) that sentence,

is broad enough to include civil penalties. App.,

infra, 10a-13a. In so holding, the court followed the

Sixth Circuit’s decision in Ohio v. United States

4

Dep’t of Energy, 904 F.2d 1058 (1990), cert.

granted, Nos. 90-1341 & 90-1517 (June 3, 1991).

See App., infra, lla-12a.

The court also ruled that the language in the CWA

citizen suit provision, § 505(a), 33 U.S.C. 1365(a),

granting district courts authority “to apply any ap-

propriate civil penalties under [the CWA civil penal-

ties provision §$ 309(d), 33 U.S.C. 1319(d)]” in a

citizen suit, waived federal sovereign immunity from

civil penalties. App., infra, 13a-15a. The court rec-

ognized that, under the civil penalties provision alone,

civil penalties would not be available against the

federal government, since the federal government is

not a “person” whom that provision subjects to civil

penalties. App., infra, 13a-l4a. Nonetheless, the

court held that the language subjecting the United

States to citizen suits “manifests Congress’ consent

to the assessment or civil penalties against the United

States.” App., infra, 14a-15a.

REASONS FOR GRANTING THE PETITION

This cases raises issues virtually identical to sev-

eral of the issues currently before this Court in

United States Dep't of Energy v. Ohio, Nos. 90-1341

and 90-1517. Although Ohio presents additional is-

sues not raised by this case, the decision in Ohio is

likely to control the analysis here. We therefore sug-

gest that this case be held pending this Court’s dis-

position of Ohio.

1. In this case, respondents claimed that Section

313(a) waives federal sovereign immunity from

civil penalties assessed under the CWA itself. In

Ohic, the State sought civil penalties under the CWA

itself, as well as under the civil penalties provision

5

of the state water pollution control scheme. This

Court therefore has before it in Ohio the question

whether Section 313(a) waives sovereign immunity

from federal civil penalties.' The Court’s resolution

of that question in Ovio will likely determine the cor-

rect resolution of the same question in this case.

The fact that the State in Ohio has an additional

basis for claiming civil penalties—state-law provi-

sions for civil penalties, as well as the CWA itself—

does not alter the conclusion that the initial inquiry

in both cases is the same: whether Section 313(a)

authorizes the award of civil penalties against the

government at all. Although the Ohio case involves

an additional issue—whether, if such penalties are

authorized, state civil penalties “aris[e] under Fed-

eral law” for purposes of the proviso in Section 313

(a)*—this Court’s construction of Section 313(a) in

Ohio will likely govern this case.

2. The Ohio case also raises the same issue as does

this case concerning the proper interpretation of Sec-

tion 505(a) of the CWA, 33 U.S.C. 1365(a). Section

505fa) generally authorizes citizen suits against any

entity subject to the CWA—federal, state local, or

nongovernmental. It provides that, in a citizen suit,

a district court may grant injunctive relief or may

1 The first question presented in the petition for a writ of

certiorari filed by the United States in Ohio was: “Whether

Section 313 of the Clean Water Act, 33 U.S.C. 1323, waives

the sovereign immunity of the United States from assessment

of civil penalties for violation of state water pollution control

laws.”

2 Section 313(a) provides that “the United States shall be

liable only for those civil penalties arising under Federal law

or imposed by a State or local court to enforce an order or

the process of such court.” 33 U.S.C. 1323(a).

6

“apply any appropriate civil penalties’ under the

CWA civil penalties provision, 33 U.S.C. 309(d), 33

U.S.C. 1319(d) (emphasis added). Any such civil

penalties are payable to the federal Treasury. See

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49, 53 (1988). In both Ohio

and this case, the plaintiffs argued that the above

language waives federal sovereign immunity from

such civil penalties.

In Ohio, the Sixth Circuit did not reach the State’s

claim that the citizen suit provision waives federal

sovereign immunity from civil penalties; this is the

first appellate case to have decided that issue. The

Sixth Circuit did, however, decide a related question

concerning the interpretation of the analogous citi-

zen suit provision of the Resource Conservation and

Recovery Act, 42 U.S.C. 6972(a), and this Court

granted the State’s cross-petition presenting the ques-

tion “[w]hether Sections 313 and 505 of the Clean

Water Act, 33 U.S.C. 1323 [and 1365], waives the

sovereign immunity of the United States from assess-

ment of federal civil penalties for violations of the

Clean Water Act.” 90-1517 Cross-Pet. at i. This

Court’s resolution of that question in Ohio is there-

fore likely to determine whether the court of appeals

correctly resolved the same question in this case.

3. This case involves a potentially large monetary

judgment. Pursuant to the partial summary judg-

ment already entered, the district court found the

United States liable for penalties for more than 6333

CWA violations;* the statutory maximum liability

® The district court counted a violation of a single effluent

limitation in the permit on a single day as a single violation,

thus leading to the court’s finding of multiple violations for

each day at issue. App., infra, 37a.

7

for each violation is $25,000 per day. 33 U.S.C. 1319

(d). The district court held that the government will

also be held liable for the numerous violations that

have occurred since. App., infra, 38a. Because most

of the violations cannot be abated until construction

of the water treatment facility is completed, the gov-

~ernment’s liability continues to mount.

CONCLUSION

The petition for a writ of certiorari should be held

and disposed of as appropriate in light of this Court’s

decision in United States Dep’t of Energy v. State of

Ohio, Nos. 90-1341 & 90-1517.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor General

JACQUES B. GELIN

ELLEN J. DURKEE

Attorneys

JULY 1991

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 90-1183

SIERRA CLUB and COLORADO ENVIRONMENTAL

COALITION, PLAINTIFFS-APPELLEES

Us.

MANUEL LUJAN, JR., Secretary of the Interior, THE

UNITED STATES DEPARTMENT OF THE INTERIOR, C.

DALE DUVALL, Commissioner of Reclamation, and

THE UNITED STATES BUREAU OF RECLAMATION,

DEFENDANTS-APPELLANTS

Appeal from the United States District Court for the

District of Colorado (D.C. No. 89-B-0076)

[Filed Apr. 30, 1991]

McKAY, ALDISERT,* and McWILLIAMS, Circuit

Judges.

ALDISERT, Circuit Judge.

*Ruggero J. Aldisert, Senior Judge, United States Court

of Appeals for the Third Circuit, sitting by designation.

(la)

2a

This appeal by the United States Department of

the Interior and its Bureau of Reclamation requires

us to interpret certain provisions of the Clean Water

Act to determine whether Congress has waived the

United States’ sovereign immunity and authorized

the assessment of civil penalties against federal agen-

cies for violations of the Act.

The plaintiffs, Sierra Club and Colorado Environ-

mental Coalition, filed this citizen suit under Section

505(a) of the Clean Water Act, 33 U.S.C. § 1365

(a), seeking mandatory and declaratory relief and

civil penalties against the Department of the Interior

and the Bureau of Reclamation for violations of the

Act. We conclude that both the plain language of

sections 1323(a) and 1365(a) of the Act and its leg-

islative history evidence Congress’ intent to w ive

sovereign immunity and to permit the assessment of

civil penalties against the United States, and we af-

firm the judgment of the district court.

Trial court jurisdiction was proper under Section

505(a) of the Clean Water Act, 33 U.S.C. § 1365(a),

and 28 U.S.C. § 1331. We have appellate jurisdiction

under 28 U.S.C. § 1292(b), which permits interloc-

utory appeals, and Rule 5(a), F.R.A.P.

I.

The facts are undisputed. In 1972 Congress en-

acted the Clean Water Act (CWA or Act), 33 U.S.C.

§ 1251, et seq., “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s

waters.” Jd. §1251(a). The Act makes it unlawful

to discharge pollutants into navigable waters unless

authorized under its specific sections. Jd. § 1311(a).

It also establishes the National System, which allows

the Environmental Protection Agency (EPA) to issue

3a

permits authorizing the discharge of pollutants. /d.

§ 1342(a). Upon EPA’s approval, a state may ad

minister its own permit program. /d. $ 1312(b).

The Department of the Interior and the Bureau of

Reclamation own and operate the Leadville tunnel in

Lake County, Colorado. In 1975 EPA issued the Bu-

reau a National System permit for the Leadville tun-

nel which required the Bureau to ensure that drain-

age from the tunnel does not exceed specific effluent

limitations and to submit to EPA a schedule for com-

pliance. The EPA has reissued the permit several

times.

On January 13, 1989, the Sierra Club and Colorado

Environmental Coalition filed a complaint in federal

district court alleging that the Interior Department

and the Bureau had violated the 1975 National Sys-

tem permit by failing to comply with certain require-

ments. They asked the court (1) to issue a manda-

tory injunction enjoining further permit violations,

(2) to order the agencies to pay civil penalties and

(3) to declare that the agencies are in violation of

the CWA. The agencies moved to dismiss the civil

penalties claim for lack of subject matter jurisdiction

under Rule 12(b)(1), F.R.Civ.P, arguing that the

CWA’s waiver of sovereign immunity does not in-

clude the assessment of civil penalties against the

United States. Sierra Club and the Coalition coun-

tered with a motion for partial summary judgment

on the same issue.

Concluding that the CWA waives sovereign immu-

nity and authorizes civil penalties against the United

States, the district court denied the agencies’ motion

to dismiss on January 19, 1990, and granted the

plaintiffs’ motion for partial summary judgment.

Sierra Club v. Lujan, 728 F. Supp. 1513, 1518 (D.

4a

Colo. 1990). On May 24, 1990, the district court

approved a consent decree resolving all claims ex-

cept the request for civil penalties. On June 14, 1990,

the district court granted the agencies permission to

file an interlocutory appeal under 28 U.S.C. § 1292

(b). This appeal followed.

Il.

We review de novo a district court’s decision re-

garding subject matter jurisdiction. Kunkel v. Con-

tinental Casualty Co., 866 F.2d 1269, 1273 (10th

Cir. 1989). We also review de novo a trial court’s

grant of summary judgment, which requires us to

examine the evidence in the light most favorable to

the nonmoving party to ascertain (1) whether any

genuine issues of material fact exist and (2) whether

the district court correctly applied the relevant sub-

stantive law. Hokansen v. United States, 868 F.2d

372, 374 (10th Cir. 1989). We may uphold “ ‘the

granting of summary judgment if any proper ground

exists to support the district court’s ruling.’” Id.

(quoting Setliff v. Memorial Hosp. of Sheridan

County, 850 F.2d 1384, 1391-92 (10th Cir. 1988) ).

ITI.

The United States, as sovereign, is immune from

suit in the absence of its consent. Library of Con-

gress v. Shaw, 478 U.S. 310, 315 (1986). “[A]

waiver of the traditional sovereign immunity ‘cannot

be implied but must be unequivocally expressed’ ”’

by Congress. United States v. Testan, 424 U.S. 392,

399 (1976) (quoting United States v. King, 395 U.S.

1, 4 (1969); see Mitzelfelt v. Department of Air

Force, 903 F.2d 1293, 1294-95 (10th Cir. 1990). A

court must strictly construe a waiver in favor of

5a

the sovereign and may not extend it beyond what the

language of the statute requires. Ruckelshaus v. Si-

erra Club, 463 U.S. 680, 686 (1983).

The arguments raised by the federal agencies in

this appeal and the responses of the Sierra Club and

the Coalition are grounded on specific provisions of

the Clean Water Act. The litigants pick and choose

parts of a comprehensive statute to sustain their re-

spective positions. Because certain provisions, at least

facially, have the capability of appearing inconsistent,

it is necessary to set forth the statutory provisions in

detail. We emphasize that our task requires correlat-

ing and coordinating parts of each provision. Indeed,

in jumping from section to section, we will be fitting

together pieces of a statutory jigsaw puzzle.

Our beginning point is Section 313 of the Clean

Water Act, 33 U.S.C. § 1323(a), which exposes the

federal government to the responsibilities under the

Act:

Each department . . . shall be subject to, and

comply with, all Federal . . . requirements...

and process and sanctions respecting the control

and abatement of water pollution ... The pre-

ceding sentence shall apply .. . to any process

and sanction .. . notwithstanding any immunity

of such —higg — agents, or employees

under any law .

Id. From this, we a to examine other relevant

portions of the Act.

This action is a citizen suit. Accordingly, we must

consider the provision that authorizes citizen suits, as

well as the statutory penalty provision it incorporates

by reference. Commonly known as the citizen suits

provision, Section 505(a) of the CWA, 33 U.S.C.

§ 1365(a), permits private citizens to file complaints

6a

against any person (including (i) the United

States, and (ii) any other governmental instru-

mentality or agency to the extent permitted by

the eleventh amendment to the Constitution) who

is alleged to be in violation of (A) an effluent

standard or limitation under this chapter or (B)

an order issued by the Administrator or a State

with respect to such a standard or limitation....

Jd. §1365(a)(1) (emphasis added). The statute

further provides:

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such

act or duty, as the case may be, and to apply

any appropriate civil penalties under section

1319(d) of this title.

Id. § 1865(a) (emphasis added).

The civil penalties authorized in the citizen suits

provision are found in Section 309(d) of the CWA,

33 U.S.C. § 1319(d):

Any person who violates section 1311, 1312, 1316,

1317, 1318, 1828, or 1345 of this title, or any

permit condition or limitation implementing any

of such sections in a permit issued under section

1342 of this title by the Administrator, or by a

State ... shall be subject to a civil penalty not

to exceed $25,000 per day for each violation.

Id. § 1819 (d) (emphasis added). The specific civil

penalty set forth in section 1319(d), as incorporated

by the citizen suits provision, applies here because the

Ta

permit for the Leadville tunnel was issued by the

EPA under the authority of 33 U.S.C. § 1342.

Two provisions of the Clean Water Act—applicable

to all enforcement actions under the Act and thus not

limited to citizen suits—also must command our at-

tention. We have referred to one of these before—

the provision in section 1323(a) subjecting federal

agencies to the CWA and exposing them to stated

liabilities. We now set forth this section in detail:

Each department, agency or instrumentality .. .

of the Federal Government (1) having jurisdic-

tion over any property or facility, or (2) en-

gaged in any activity resulting, or which may

result, in the discharge or runoff of pollutants,

and each officer, agent, or employee thereof in

the performance of his official duties, shall be

subject to, and comply with, all Federal, State,

interstate, and local requirements, administra-

tive authority, and process and sanctions respect-

ing the control and abatement of water pollution

in the same manner, and to the same extent as

any nongovernmental entity including the pay-

ment of reasonable service charges. The preced-

ing sentence shall apply ... to any process and

sanction, whether enforced in Federal, State, or

local courts or in any other manner. This sub-

section shall apply notwithstanding any immu-

nity of such agencies, officers, agents, or em-

ployees under any law or rule of law. ... No

officer, agent, or employee of the United States

shall be personally liable for any civil penalty

arising from the performance of his official

duties, for which he is not otherwise liable, and

the United States shall be liable only for those

civil penalties arising under Federal law or im-

8a

posed by a State or local court to enforce an

order or the process of such court. ...

33 U.S.C. § 1823(a) (emphasis added).

Section 502 of the CWA, 33 U.S.C. § 1362, defines

certain terms that are used in the Act. It specifically

defines “person” as ‘‘an individual, corporation, part-

nership, association, State, municipality, commission,

or political subdivision of a State, or any interstate

body.” Id. § 1362(5)

Critical to our analysis is the comparison of sec-

tion 1362(5), which defines “person” as used in the

Act generally—a definition that does not include the

federal government—and section 1365(a) of the citi-

zen suits provision that specifically defines “person”

as “including the United States.”

With this as the statutory background, we now

turn to the contentions of the parties.

IV.

The federal agencies, as appellants, argue that the

district court determined incorrectly that the CWA

contains an express, unequivocal and unambiguous

waiver of sovereign immunity permitting imposition

of civil penalties against the United States. They con-

tend that the language and legislative history of the

Act do not express Congress’ intent to waive sov-

ereign immunity regarding civil penalties. We reject

these contentions and hold that both the plain lan- ©

guage of section 1323(a) and 1365(a) and the legis-

lative history of the Act authorize the assessment of

civil penalties against federal agencies for CWA vio-

lations. Specifically, we hold that these two statutory

provisions contain language that ipsissimis verbis

Waives sovereign immunity.

9a

The first contention of the Interior Department

and the Bureau concedes that section 1323(a) sub-

jects the federal government to the provisions of the

CWA and waives sovereign immunity regarding the

“requirements, administrative authority, and process

and sanctions respecting the control and abatement of

water pollution.” They contend, however, that this

waiver does not authorize civil penalties against the

United States because such penalties are not “require-

ments” or “sanctions” as contemplated by the Act.

The words “process and sanctions’ must be read

together, they argue, to include only those monetary

sanctions necessary to ensure compliance with judicial

process. The statement in section 1323(a) that “the

United States shall be liable only for those civil pen-

alties arising under Federal law or imposed by a

State or local court to enforce an order or the process

of such court” has a very limited meaning according

to them: It evidences only a waiver of sovereign im-

munity to traditional sanctions imposed to enforce

judicial process and injunctive relief.

To support their interpretation, indeed to support

all their contentions in this appeal, the federal agen-

cies point to but one reported case—the district court

opinion in McClellan Ecological Seepage Situation v.

Weinberger, 655 F. Supp. 601 (E.D. Cal. 1986). The

McClellan plaintiff had brought a citizen suit against

the Department of Defense requesting injunctive re-

lief, declaratory relief and civil penalties for viola-

tions of the CWA and the Resource Conservation

and Recovery Act. /d. at 602. After examining sec-

tion 1323(a), along with the citizen suits provision,

33 U.S.C. § 1365(a), the court determined that Con-

gress had not clearly and unambiguously waived civil

penalties against federal facilities. 655 F. Supp. at

10a

605. Noting that section 1323(a) “is a compilation

of ambiguity,” the court concluded that it was im-

possible to determine whether Congress meant the

“or” after “the United States shall be liable only for

those civil penalties arising under Federal law” to be

read as an “and” so that “imposed by a State or local

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

stands by itself, or whether “civil penalties arising

under Federal law” should be followed by the phrase

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

Id. at 604.

But the McClellan case has not enjoyed enthusiastic

acceptance. Indeed, it has spawned no progeny. Other

courts that have considered this issue, including the

district court in this case, have not found as ambigu-

ous the language that worried the McClellan trial

judge. See State of Ohio v. U.S. Dep’t of Energy, 904

F.2d 1058 (6th Cir. 1990); Metropolitan Sanitary

Dist. of Greater Chicago v. U.S. Dep’t of Navy, 722

F. Supp. 1565 (N.D. Ill. 1989); State of Cal. v. U.S.

Dep’t of Navy, 631 F. Supp. 584 (N.D. Cal. 1986),

aff'd, 845 F.2d 222 (9th Cir. 1988). These cases uni-

formly agreed that the statute’s waiver of sovereign

immunity as to “sanctions” encompasses civil pen-

alties.

This conflict in the case law—lopsided though it

is—gives us our marching orders. When put in

proper focus, the threshold question is: Does the term

“sanctions” in “‘process and sanctions” set forth in

section 1323(a) encompass “civil penalties”? Unlike

the judge in McClellan, we have no problem answer-

ing this question in the affirmative because we think

that the Supreme Court already has supplied the di-

rection.

lla

A “sanction” is “[t]hat part of a law which is

designed to secure enforcement by imposing a penalty

for its violation.” Black’s Law Dictionary 1203 (5th

ed. 1979). The Supreme Court recently has held that

civil penalties authorized by the CWA may be sanc-

tions. Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 53 (1987); United

States v. Ward, 448 U.S. 242, 249 (1980). It bears

emphasis that the same section 1323(a) that discusses

“process and sanctions” also states that the United

States shall be liable for “civil penalties.” Thus, the

sanctions authorized by section 1323(a) are also pen-

alties, particularly when the same statute also per-

mits “those civil penalties arising under Federa!

Law.”

B.

The reasoning expressed by the courts other than

McClellan supports our conclusion that federal im-

munity has been waived here. The Court of Appeals

for the Sixth Circuit held in State of Ohio v. U.S.

Department of Energy that the express language of

section 1323 “limits its waiver of sovereign immunity

for civil penalties to those ‘arising under federal

law.’”’ 904 F.2d at 1061. Even the dissenting judge

agreed that the language of section 1323 “undoubt-

edly encompasses civil penalties,” id. at 1067 (Guy,

J., dissenting), although Judge Guy disagreed with

the conclusion that Ohio’s cause of action arose under

federal law. Unlike the permit in the case at bar,

which the EPA issued under the authority of 33

U.S.C. § 1342, the State of Ohio permit was issued by

the state under QOhio’s statutory scheme. See 904

F.2d at 1068 (Guy, J., dissenting).

In Metropolitan Sanitary District of Greater Chi-

cago v. U.S. Department of Navy, the district court

12a

noted that the purpose of the CWA “was to achieve

compliance with new standards, not to simply compen-

sate for injuries caused by existing practices,” and

that assessing penalties against federal facilities for

CWA violations is entirely consistent with these goals.

722 F. Supp. at 1569. The court found “no special

reason to adopt an artificially narrow construction of

the language of § 1323(a)’s waiver of sovereign im-

munity.” Jd. Significantly, the court also observed

that some courts interpret the term “requirements”

in section 1323(a) to include penalties, see, e.g.,

State of Me. v. Department of Navy, 702 F. Supp.

322, 328 (D. Me. 1988), and commented that even if

“requirements” does not refer to penalties, they surely

are encompassed in the statute’s provision that fed-

eral agencies shall be subject to “ ‘all . . . sanctions

respecting the control and abatement o: water pollu-

tion.’ ” 722 F. Supp. at 1570. Like the court in State

of Ohio, the district court concluded that the language

of section 1323(a) waives immunity as to civil pen-

alties arising under federal law. Id. at 1570-72; see

State of Cal. v. U.S. Dep’t of Navy, 845 F.2d at 224-

25 (holding that section 1323(a) authorizes civil

penalties against federal facilities but does not per-

mit states to seek such penalties).

C.

The Supreme Court has cautioned us not to “im-

port [total] immunity back into a statute designed to

limit [governmenta] immunity].” Indian Towing Co.

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

warned that “ ‘[t]he exemption of the sovereign from

suit involves hardship enough where consent has been

withheld. We are not to add to its rigor by refine-

ment of construction where consent has been an-

13a

nounced.’” Block v. Neal, 460 U.S. 289, 298 (1983)

(quoting Anderson v. John L. Hayes Const. Co., 243

N.Y. 140, 147, 153 N.E. 28, 29-30 (1926) (Cardozo,

J.)).

We therefore decline to accept the agencies’ invita-

tion to adopt the reasoning and decision in McClellan.

We conclude that the interpretation of section 1323

(a) offered by that district court is unduly restric-

tive. We hold that section 1323(a) expressly author-

izes the courts to assess civil penalties against fed-

eral agencies for violations of the CWA. Not only

does the term “sanctions” encompass civil penalties, but

this section also does not limit the use of such penal-

ties merely to ensure compliance with judicial process.

It clearly states that the waiver of immunity applies

“to any process and sanction, whether enforced in

Federal, State, or local courts or in any other man-

ner.” 33 U.S.C. § 1323(a) (emphasis added). It also

makes the United States liable for “civil penalties

arising under Federal law.” Id.

Because this lawsuit is based on alleged violations

of a National System permit issued by the EPA, it

arises under federal law. Thus, the district court did

not err in determining that Congress had consented

to the assessment of civil penalties against the United

States through the enactment of section 1323(a).

V.

The federal agencies next contend that the defini-

tion of “person” in the section applicable to the CWA

generally pointedly excludes the federal government

from the assessment of penalties. This section de-

fines “person” as “an individual, corporation, part-

nership, association, State, municipality, commission,

l4a

or political subdivision of a State, or any interstate

body.” Jd. § 1362(5).

As we have observed before, however, this general

definition of ‘person’ conflicts with the specific defi-

nition of “person” in the citizen suits provision allow-

ing private citizens to file complaints “against any

person (including (i) the United States).” Jd.

§ 1365(a). The district court rejected the general

definition of “person” in section 1362(5) in favor of

the specific definition in the citizen suits statute, 33

U.S.C. § 1365(a). 728 F. Supp. at 1518. The court

concluded that Congress expressly provided for the

assessment of civil penalties against the United States

under section 1319(d) when it enacted the citizen

suits provision. /d.

Relying again on McClellan, the agencies argue

that the definition of the word “person” in section

1319(d) must be supplied by section 1362(5), and

not by section 1365(a). We agree with the district

court in this case that the general definition in sec-

tion 1362(5) does not trump the definition of “per-

son” in the citizen suits statute, 33 U.S.C. § 1365(a).

We have held that “a specific statutory provision

will govern notwithstanding the fact that a gen-

eral provision, standing alone, may include the

same subject matter.” United States v. Precon, 695

F.2d 1236, 1243 (10th Cir. 1982). Applying this

principle, we reject the reasoning in McClellan here

as well, and conclude that the definition of “person”

as used in section 1319(d) must be provided by the

specific citizen suits provision, 33 U.S.C. § 1365(a),

which includes the United States.

The case before us is a citizen suit. Thus, we will

consider definitions under the citizen suits provision

and not the general provision of the Clean Water Act.

15a

The district court determined correctly that section

1365(a)’s reference to the penalty provision in sec-

tion 1319(d) manifests Congress’ consent t> the as-

sessment of civil penalties against tiie Uni -d States.

VI.

Finally, the federal agencies challenge the district

court’s determination that the legislative history of

the CWA evidences Congress’ intent to waive sov-

ereign immunity regarding all civil penalties. They

contend that the court improperly construed congres-

sional silence in the CWA as a waiver of sovereign

immunity. They also object to the district court’s

analogy to the legislative history of the Clean Air

Act.

Because we hold that the language of sections 1323

(a) and 1365(a) expressly waives the United States’

sovereign immunity as to civil penalties, it is not

necessary to delve into legislative history to justify

our decision; the statutory language reveals Con-

gress’ intent. However, had it been necessary to re-

sort to legislative history, we would hold that this

history is not inconsistent with what we perceive to

be the Congressional intent clearly expressed in the

statutory language.

A.

In 1977 Congress amended the CWA in response

to two Supreme Court decisions, Hancock v. Train,

426 U.S. 167 (1976), and Environmental Protection

Agency v. California, 426 U.S. 200 (1976), which

held that the Federal Water Pollution Control Act

and the Clean Air Act “did not clearly and unam-

biguously demonstrate congressional intent to sub-

ject federal facilities to state permit requirements.”

16a

Sierra Club v. Lujan, 728 F. Supp. at 1517. Congress

specified in the 1977 amendment that federal facili-

ties must comply with all requirements regarding

pollution control, whether substantive or procedural,

including “process and sanctions.” IJd.; see United

States v. State of Wash., 872 F.2d 874, 878 (9th Cir.

1989).

In its report on the CWA Amendments of 1977,

the Senate Committee expressed the purpose of the

amendments:

This act has been amended to indicate un-

equivocally that all Federal facilities and activi-

ties 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 Fed-

eral Water Pollution Control Act Amendments,

the Supreme Court, encouraged by the Federal

agencies, has misconstrued the original intent.

S. Rep. No. 370, 95th Cong., 1st Sess. 67, reprinted in

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

4392. The district court here concluded that ‘“[a]]-

though the Senate Committee did not expressly men-

tion civil penalties . . . such sanctions are included in

the Committee’s emphatic statement that federal

facilities are subject to ‘all of the provisions’ of state

and local pollution regulations.” 728 F. Supp. at

1517; accord Metropolitan Sanitary Dist. of Greater

Chicago v. U.S. Dep’t of Navy, 722 F. Supp. at 1571.

The district court also determined that the legis-

lative history of the Clean Air Act clearly indicates

Congress’ intent to waive the United States’ immu-

nity for civil penalties. 728 F. Supp. at 1517. Al-

though the agencies now resist the efficacy of an

analogy to the Clean Air Act, they conceded in the

17a

district court that Congress revised the current ver-

sion of section 1323(a) “to conform with a com-

parable provision in the Clean Air Act.” H.R. Rep.

No. 830, 95th Cong., 1st Sess. 93 (1977). The House

Report on the Clean Air Act clearly demonstrates

Congress’ intent to waive sovereign immunity regard-

ing civil penalties:

This amendment is also intended to resolve any

question about the sanctions to which noncomply-

ing Federal agencies, facilities, officers, employ-

ees, or agents may be subject. The applicable

sanctions are to be the same for Federal facili-

ties and personnel as for privately owned pollu-

tion sources and for the owners or operators

thereof. This means that Federal facilities and

agencies may be subject to injunctive relief (and

criminal or civil contempt citations to enforce

any subject injunction), to civil and criminal

penalties, and to delay compliance penalties.

H.R. Rep. No. 294, 95th Cong., Ist Sess. 200, re-

printed in 1977 U.S. Code Cong. & Admin. News

1077, 1279 (emphasis added).

Like a broken record, the agencies cite only Mc-

Clellan to support their argument that the legislative

history does not exhibit a consent to assessment of

civil penalties. We find the McClellan court’s anal-

ysis to be self-contradicting. On the one hand, it

concluded that the CWA’s legislative history was of

no assistance and that if anything could aid the plain-

tiff, it was the legislative history of the Clean Air

Act. 655 F. Supp. at 604. On the other hand, it

refused to accept the Clean Air Act’s legislative his-

tory as relevant to the CWA. 7d. at 605. Signifi-

cantly, the Clean Air Act clearly evidences a waiver

of immunity regarding civil penalties. /d.

18a

We repeat, for emphasis, that a resort to the

legislative history is not necessary because the Con-

gressional intent can be gleaned from the statutory

language. Having said that, however, we believe that

the legislative history is not inconsistent with our

conclusion that the plain language of sections 1323

(a) and 1365(a) reveals Congress’ intent to author-

ize the assessment of civil penalties against federal

agencies.

VII.

We conclude, therefore, that Congress has waived

the United States’ sovereign immunity and authorized

the imposition of civil penalties against federal agen-

cies for Clean Water Act violations brought under its

citizen suits provision. The judgment of the district

court is AFFIRMED.

19a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Case No. 89-B-76

CERTIFICATE OF MAILING

I hereby certify that a copy of Order was mailed

this 24th day of May, 1990 to the following:

Adam Babich, Esq.

Cornwell & Blakey

1225 Seventeenth Street, Suite 2650

Denver, CO 80202

Margaret Kane Harrington, Esq.

Environmental Defense Section

U.S. Department of Justice

Washington, D.C. 20530

William G. Pharo, Esq.

Assistant U.S. Attorney

1200 Byron G. Rogers Building

Drawer 3615

Denver, CO 80294

Magistrate Donald E. Abram

/s/ Carol Henderson

Deputy Clerk

20a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Lewis T. Babcock, Judge

Civil Action No. 89-B-76

SIERRA CLUB and COLORADO ENVIRONMENTAL

COALITION, PLAINTIFFS

Vv.

MANUEL LUJAN, Secretary of the Interior; THE

UNITED STATES DEPARTMENT OF THE INTERIOR;

C. DALE DUVALL, Commissioner of Reclamation;

and THE UNITED STATES BUREAU OF RECLAMA-

TION, DEFENDANTS

MEMORANDUM OPINION AND ORDER

[Filed Jan. 19, 1990]

Babcock, J.

Plaintiffs, Sierra Club and Colorado Environmental

Coalition, seek mandatory and declaratory injunctive

relief and civil penalties against the United States

Department of the Interior (DOI) and the DOI’s Bu-

reau of Reclamaticn (BOR), jointly and severally,

pursuant to Clean Water Act (CWA), section 505,

33 U.S.C. $1365. Plaintiffs allege in their second

amended complaint that DOI and BOR (United

States or federal defendants) violated and continue

2ia

to violate a 1975 National Pollutant Discharge Elim-

ination System (National System) permit issued by

the United States Environmental Protection Agency

(EPA) to the BOR for its Leadville Mine Drainage

Tunnel (tunnel). Pursuant to Fed. R. Civ. P. 12(b)

(1), federal defendants move to dismiss plaintiffs’

claim for civil penalties on the grounds that this

Court lacks subject matter jurisdiction to impose

civil penalties against the United States. Plaintiffs

have moved for partial summary judgment on the

issue. The sole question is whether Congress has

waived the United States’ sovereign immunity and

authorized the assessment of civil penalties against

federal agencies for violations of the CWA, 33 U.S.C.

§ 1251 et seq. The issue has been well-briefed by both

parties, several States have filed an amicus brief,

and oral argument will not assist me in deciding this

question. For the following reasons, I deny the fed-

eral defendants’ motion to dismiss and I grant plain-

tiffs’ motion for partial summary judgment.

The CWA was enacted in 1972 “to restore and

maintain the chemical, physical, and biological in-

tegrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

The act’s purpose is to secure compliance with new

standards and to change existing practices, not merely

to compensate for injuries caused by existing prac-

tices. In order to achieve these goals, CWA § 301

(a) makes discharge of any pollutant into navigable

waters unlawful unless authorized in accordance with

specified sections of the CWA. /d.

One of these specified sections is section 402, which

establishes the National System. Pursuant to section

402(a). the EPA Administrator may issue permits

authorizing the discharge of pollutants. Upon EPA’s

approval, CWA § 402(b) allows a state to administer

its own permit program. 33 U.S.C. § 1342(b).

22a

Once a National System permit is issued, the per-

mittee’s obligation to comply with the regulatory

scheme is determined by reference to the terms and

conditions of the permit, whether the permit has been

issued by the EPA or an EPA approved agency.

CWA, § 402(k); 33 U.S.C. § 1342(k).

Plaintiffs allege in their complaint that the DOI

and BOR own and operate a tunnel in Lake County,

Colorado. Plaintiffs contend that in 1975 EPA issued

BOR a National System permit which required BOR to

ensure that drainage from the tunnel complied with

specific effluent limitations and to submit to EPA a

schedule for compliance. The permit was reissued by

EPA several times. EPA also issued to BOR its

December 1977 Administrative Order establishing a

schedule for meeting the 1975 permit effluent limita-

tions. In September 1984, EPA and BOR also en-

tered into an Administrative Stipulation and Agree-

ment that contained a schedule for plugging the tun-

nel.

Plaintiffs allege that BOR and DOI are in violation

of their 1975 National System permit because they

have failed to comply with certain permit require-

ments. In their claim for relief, plaintiffs ask that

this Court: 1) issue a mandatory injunction enjoin-

ing further permit violations; 2) issue an Order re-

quiring federal defendants to pay civil penalties;

and 3) declare that federal defendants are in viola-

tion of the CWA. Federal defendants move to dis-

miss the claim for civil penalties for want of subject

matter jurisdiction, arguing that the CWA’s waiver

of sovereign immunity is not broad enough to permit

suits that seek civil penalties against the United

States.

It is axiomatic that the United States may not be

sued without its consent. Block v. North Dakota, 461

23a

U.S. 273, 287 (1983); United States v. Sherwood,

312 U.S. 584, 586 (1941). There is no waiver of sov-

ereign immunity unless it is clear and unequivocal.

Army & Air Force Exchange Service v. Sheehan,

456 U.S. 728, 734 (1982); United States v. Mitchell,

445 U.S. 535, 538 (1980). Waiver cannot be implied.

United States v. King, 395 U.S. 1, 4 (1969). Waiv-

ers of sovereign immunity are strictly construed in

favor of the sovereign and are not expanded beyond

what the language of the statute requires. Ruckels-

haus v. Sierra Club, 463 U.S. 680, 685-86 (1983).

Section 313(a) of the CWA, 33 U.S.C. § 1823(a)

(Section 313) provides in pertinent part that:

Each department, agency or instrumentality .. .

of the Federal Government (1) having jurisdic-

tion over any property or facility, or (2) en-

gaged in any activity resulting, or which may

result, in the discharge or runoff of pollutants,

and each officer, agent, or employee thereof in

the performance of his official duties, shall be

subject to, and comply with, all Federal, State,

interstate, and local requirements, administra-

tive authority and process and sanctions respect-

ing the control and abatement of water pollution

in the same manner, and to the same extent as

any nongovernmental entity including the pay-

ment of reasonable service charges. The preced-

ing sentence shall apply (A) to any requirement

whether substantive or procedural (including

any recordkeeping or reporting requirement, any

requirement respecting permits and any other re-

quirement, whatsoever), (B) to the exercise of

any Federal, State, or local administrative au-

thority, and (C) to any process and sanction,

whether enforced in Federal, State, or local

24a

courts or in any other manner. This subsection

shall apply notwithstanding any immunity of

such agencies, officers, agents, or employees

under any law or rule. ... No officer, agent, or

employee of the United States shall be personally

liable for any civil penalty arising from the per-

formance of his official duties, for which he is

not otherwise liable, and the United States shall

be liable only for those civil penalties arising

under Federal law or imposed by State or local

court to enforce an order or the process of such

court,

33 U.S.C. § 1323(a) (emphasis added).

Section 313, therefore, waives sovereign immunity

with respect to “requirements, administrative au-

thority, and process and sanctions respecting the con-

trol and abatement of water pollution.” Federal de-

fendants contend, however, that because § 313 does

not expressly consent to suits for “civil penalties,”

the subsection’s waiver of sovereign immunity cannot

be construed to extend to civil penalties. Specifically,

defendants assert that civil penalties are neither “‘re-

quirements” nor “sanctions.”

Courts are divided on whether civil penalties are

included in the term “requirements.” See e.g., Maine

v. Dept. of Navy, 702 F.Supp. 322, 327 (D.Me. 1988)

(“Both generically and specifically, such civil penal-

ties are clearly encompassed within the [Resource

Recovery and Conservation Act of 1976 (RCRA), 42

U.S.C. § 6961] language ‘all . . . requirements, both

substantive and procedural.’ ”’); McClellan Ecological

Seepage Situation (MESS) v. Weinberger, 655 F.Supp.

601, 604 (E.D. Ca. 1986) (neither $6001 of the

RCRA nor $313 of the CWA provides for a waiver

25a

of sovereign immunity for civil penalties); U.S. v.

Washington, 872 F.2d 874, 880 (9th Cir. 1989) (the

word “requirements” in § 6001 of the RCRA does not

clearly and unambiguously express Congress’ intent

to waive sovereign immunity regarding the imposi-

tion of a civil penalty). Nevertheless, civil penalties

clearly are “sanctions” within the meaning of the

CWA. Metropolitan Sanitary Dist. v. Dept. of Navy,

722 F.Supp. 1565, 1570 (N.D.IIl. 1989); See Gwalt-

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

484 U.S. 49 (1987); U.S. v. Ward, 448 U.S. 242, 249

(1980): See also Adamo Wrecking Co. v. U.S., 434

U.S. 275, 282 (1978) (referring to the Clean Air

Act’s criminal fines and civil penalties as sanctions).

The term “sanction” is defined as, “... [T]hat part

of a law which is designed to secure enforcement by

imposing a penalty for its violation. .. .” Black’s

Law Dictionary 1203 (Rev. 5th Ed. 1979). See also

Ballentine’s Law Dictionary 1337 (3d ed. 1969)

(sanctions are the “imposition of any form of penalty

or fine’). Moreover, the United States Department

of Justice has commonly used the word “sanction” to

include civil penalties. In its comments submitted to

the House of Representatives during its consideration

of the RCRA, the Justice Department stated:

This is in response to your request for the views

of the Department of Justice on the issue of

criminal and civil penalties in environmental

laws, with specific reference to H.R. 14496, the

[RCRA] of 1976.

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 with

26a

the Clean Air Act, ... the Federal Water Pollu-

tion Control Act Amendments of 1972, ... the

1899 Rivers and Harbors Act, ... and other en-

vironmental statutes that both sanctions are use-

ful in different situations.

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

printed in 1976 U.S. Code Cong. & Admin. News

6321 (emphasis added).

Similarly, the EPA Administrator, in submitting

to Congress comments regarding the enforcement pro-

visions of the 1972 Clean Water Act Amendments,

stated:

Enforcement sanctions, including criminal and

civil penalties, should be available in order to

make the Administrator’s emergency powers

meaningful.

Statement of William D. Ruckelishaus, H.R. Rep. No.

911, 92d Cong., 2d Sess. 161, reprinted in 1 Library

of Congress, Sen. Comm. on Public Works, 93d Cong.,

Ist Sess., A Legislative History of the Water Pollu-

tion Control Amendments of 1972 (Comm. Print

1973) at 848 (emphasis added).

CWA § 313 also contains a limitation on the Act’s

waiver of sovereign immunity. The limitation pro-

vides that:

No officer, agent, or employee of the United

States shall be personally liable for any civil pen-

alty arising from the performance of his official

duties, ... and the United States shall be liable

only for those civil penalties arising under Fed-

eral Law or imposed by a State or local court to

enforce an order or process of such court.

33 U.S.C. § 13823(a) (emphasis added). There would

be no need for Congress to limit federal employees’

personal liability for any civil penalties or the federal

27a

government’s liability for penalties “arising under

Federal law,” if it had not already broadly waived

immunity from all “requirements” and “sanctions,”

including civil penalties. See Metropolitan Sanitary

Dist. v. Dept. of Navy, 722 F. Supp. at 1569-70;

Maine v. Dept. of Navy, 702 F. Supp. at 329; Cali-

fornia v. Dept. of Navy, 631 F. Supp. 584, 587 (N.D.

Cal. 1986), aff'd, 845 F.2d 222 (9th Cir. 1988);

Ohio v. Dept. of Energy, 689 F. Supp. 760, 766-67

(S.D.Ohio 1988).

Federal defendants further argue, however, that

the limitation contained in CWA § 313 “clarifies .. .

that the United States is liable only for civil penalties

imposed to enforce an order or process of a court.”

In support of their argument, they cite McClellan

Ecological Seepage Situation (MESS) v. Wein-

berger, 655 F. Supp. 601 (E.D.Ca.1986). In con-

cluding that CWA § 313 does not waive the United

States’ immunity from suit for civil penalties the

MESS court relied largely upon its analysis of similar

language in § 6001 of the RCRA. The waiver of sov-

ereign immunity there provides that:

Each department, agency, and instrumentality

of ... the Federal government... shall be sub-

ject to, and comply with, all Federal, State, inter-

state, and local requirements, both substantive

and procedural (including any requirement for

permits or reporting or any provisions for in-

junctive relief) ...in the same manner, and to

the same extent, as any person is subject to such

requirements, including the payment of reason-

able service charges. Neither the United States,

nor any agent, employee, or officer thereof, shall

be immune or exempt from any process or sanc-

28a

tion of any State or Federal Court with respect

to the enforcement of any such injunctive relief.

42 U.S.C. § 6961 (emphasis added).

The wording of the RCRA differs from the CWA

and a conclusion that the former does not permit

civil penalties should not be applied automatically to

the latter statute. The only clear reference to waiver

of sovereign immunity in RCRA § 6001 applies to

court ordered sanctions for a violation of an injunc-

tion. U.S. v. Washington, 872 F.2d 874, 877 (9th

Cir. 1989); Parola v. Weinberger, 848 F.2d 956, 962

n.3 (9th Cir. 1988). In contrast, CWA § 313 waives

sovereign immunity as to “all process and sanctions.”

Metropolitan Sanitary Dist. v. Dept. of Navy, 722 F.

Supp. 1565, 1569-70 n.3 (N.D. Ill. 1989).

I hold that by CWA § 313, Congress clearly and

unambiguously waived the United States’ sovereign

immunity for civil penalties, “arising [as here] un-

der Federal Law.”

Because CWA § 313 communicates clear congres-

sional intent to waive sovereign immunity and render

the federal defendants liable for civil penalties, resort

to legislative history is unnecessary. See Ernst &

Ernst v. Hochfelder, 425 U.S. 185, 201 (1976).

Nevertheless, the legislative history supports my con-

clusion that Congress intended § 313 to waive sover-

eign immunity regarding the imposition of civil pen-

alties.

In 1977, Congress amended the CWA, the Clean

Air Act and the Safe Drinking Water Act in re-

sponse to the Supreme Court’s decisions in Hancock v.

Train, 426 U.S. 167 (1976), and EPA v. California,

426 U.S. 200 (1976). These cases held that the Clean

Air Act and the Federal Water Pollution Control Act

29a

did not clearly and unambiguously demonstrate con-

gresisonal intent to subject federal facilities to state

permit requirements. In so holding, the Court spe-

cifically distinguished substantive requirements of

state law respecting control and abatement of pollu-

tion from procedural requirements employed to en-

force those substantive requirements. Hancock, supra

at 183; EPA v. California, supra at 215.

The following year, Congress rewrote the three

pollution statutes. The 1977 Amendments, which

share similar wording, were Congress’ reaction to the

Supreme Court’s prior restrictive interpretations of

the term “requirements” and its holding that states

were powerless to enforce their pollution laws against

federal facilities. Congress specified that federal fa-

cilities must comply with all requirements regarding

pollution control. Congress also added a clarifying

sentence, now the second sentence of § 313, explain-

ing that ‘all’ requirements include substantive, pro-

cedural, “and any other requirement, whatsoever.”

In addition, the 1977 Amendments expressly subject

federal facilities not only to state administrative au-

thority but also to state process and state sanctions.

The clarifying sentence in § 313 adds that the statute

applies to “any” process and sanction. With the third

sentence in the amended version of § 313, Congress

reiterated that no claim of any immunity, including

sovereign immunity, should interfere with the appli-

cation of pollution laws to federal facilities.

In the legislative history to the CWA Amendments

of 1977, the Senate Environment and Public Works

Committee wrote that the amended version of § 313

“indicate[s] unequivocally that all Federal facilities

and activities are subject to all of the provisions of

State and local pollution laws.” S.Rep. No. 95-370,

30a

95th Cong., lst Sess. 67, reprinted in 1977 U.S.Code

Cong. & Admin. News, 4326, 4392. Although the

Senate Committee did not expressly mention civil

penalties, I conclude that such sanctions are included

in the Committee’s emphatic statement that federal

facilities are subject to ‘all of the provisions” of

state and local pollution regulations.

Moreover, the legislative history of the Clean Air

Act indicates that Congress intended to waive federal

agencies’ immunity for civil penalties. In describing

the section of House Bill 6161, which is now codified

as the Clean Air Act’s general sovereign immunity

waiver, 42 U.S.C. § 7418, the House stated:

The amendment is also intended to resolve any

question about the sanctions to which noncomply-

ing Federal agencies, facilities, officers, employ-

ees, or agents may be subject. The applicable

sanctions are to be the same for Federal facili-

ties and personnel as for privately owned pollu-

tion sources and for the owners or operators

thereof. This means that Federal facilities and

agencies may be subject to injunctive relief (and

criminal or civil contempt citations to enforce

any such injunction), to civil or criminal penal-

ties, and to delayed compliance penalties.

H.R. Rep. No. 294, 95th Cong., 1st Sess. 200 (1977),

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

1279. The sovereign immunity waiver of House Bill

6161 was adopted by conference committee and sub-

sequently enacted, with minor changes, into law. See

Conf. Rep. No. 564, 95th Cong., 1st Sess. 137 (1977),

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

1502, 1518. |

3la

Finally, section 505(a) of the CWA, the “citizen

suit” provision, nermits citizens to sue any person,

including the United States, in federal district court

to enforce the CWA. 33 U.S.C. § 1365(a). Section

505(a) provides in pertinent part:

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

tion, any citizen may commence a civil action on

his behalf—-

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

United States ...) who is alleged to be in

violation of (A) an effluent standard or limi-

tation under this Act... The district courts

shall have jurisdiction ... to enforce such an

efiuent standard or limitation... and to

apply any appropriate civil penalties under

section 309(d) of this Act.

33 U.S.C. § 1365. Thus, citizens may sue any de-

fendant who is alleged to be in violation of an effluent

standard or limitation or an EPA or state issued

order regarding such a standard or limitation. /d.

The term “effluent standard or limitation” includes

National System permits issued under CWA § 402.

CWA § 505(f); 33 U.S.C. § 1365(f). If the citizen

prevails in such an action, the court may order in-

junctive relief and impose civil penalties payable to

the United States Treasury. 33 U.S.C. § 1365(a).

Nevertheless, federal defendants argue that federal

facilities are not subject to civil penalties under CWA

§ 309, and therefore, CWA § 505 does not vest this

court with jurisdiction to assess civil penalties against

the United States. Defendants argue that because

CWA § 309(d), 33 U.S.C. §1319(d) provides that

civil penalties are only available against “persons,”

and the definition of person set forth at CWA § 502

32a

(5), 33 U.S.C. § 1362(5) excludes the United States,

the assessment of civil penalties against them would

not be “appropriate.” Defendants’ argument is with-

out merit.

Under § 505(a), federal defendants are included as

“nersons” against whom penalties may be assessed.

Congress’ use of the word “appropriate” does not

detract from its obvious intent to subject federal de-

fendants to civil penalties. Rather, the word ‘“ap-

propriate” refers to the court’s discretion in deciding

whether a violation should be penalized and how large

the penalty should be. See Stoddard v. Western Caro-

lina Regional Sewer Authority, 784 F.2d 1200, 1208

(4th Cir. 1986). Hence, in authorizing citizen suits

under § 505(a), Congress expressly provided for

§ 309(d) civil penalties. California v. Dept. of Navy,

845 F.2d 222, 224 (9th Cir. 1988).

The clear, plain, and unambiguous language of

CWA §§ 313 and 505 reveals that Congress expressly

determined that federal agencies shall be liable for

civil penalties arising under federal law. Moreover,

the legislative history of the CWA is entirely con-

sistent with my decision that federal facilities are

subject to civil penalties. Accordingly, IT IS

ORDERED that federal defendants’ motion to dis-

miss plaintiffs’ complaint for lack of jurisdiction is

DENIED.

It is FURTHER ORDERED that plaintiffs’ motion

for summary judgment is GRANTED.

Dated at Denver, Colorado this 19th day of January

1990.

By THE Court:

/s/ Lewis T. Babcock

LEWIS T. BABCOCK

Judge

33a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 89-B-76

SIERRA CLUB and COLORADO ENVIRONMENTAL

COALITION, PLAINTIFFS

Vv.

MANUEL LUJAN, JR., Secretary of the Interior, THE

UNITED STATES DEPARTMENT OF THE INTERIOR,

C. DALE DUVALL, Commissioner of Reclamation,

and THE UNITED STATES BUREAU OF RECLAMA-

TION, DEFENDANTS

ORDER GRANTING JOINTLY FILED MOTIONS

TO (1) ENTER CONSENT DECREE; (2) CER-

TIFY THE COURT’S JANUARY 19, 1990 OR-

DER FOR INTERLOCUTORY REVIEW; (3) EX-

PEDITE RULING ON PLAINTIFFS’ MAY 12, 1989

MOTION FOR PARTIAL SUMMARY JUDGMENT;

AND (4) STAY ALL OTHER PROCEEDINGS RE-

GARDING CIVIL PENALTIES IN THIS ACTION

AND CONTINUE THE DISCOVERY

CUTOFF DATE

[Filed May 24, 1990]

Babcock, J.

THIS MATTER is before the Court on the parties’

Joint Motion to enter Consent Decree; Defendants’

34a

Motion to Certify the Court’s January 19, 1990 Order

for Interlocutory Review (to which Plaintiffs do not

object); Plaintiffs’ Motion to Expedite Ruling on

Plaintiffs’ May 12, 1989 Motion for Partial Summary

Judgment (to which Defendants do not object); and

the parties’ Joint Motion to stay all other proceedings

in this action regarding civil penalties and to continue

the discovery cutoff date.

After consideration of the Motions and being fully

advised in the premises this Court hereby orders that:

1. This Court’s January 19, 1990 Order denying

Motion to Dismiss and Granting Partial Summary

Judgment is deemed amended to include a statement

that: “This Court is of the opinion that the Order

involves controlling questions of law as to which there

is substantial ground for difference of opinion and

that an immediate appeal may materially advance the

ultimate termination of this litigation.”

2. A ruling on Plaintiffs’ May 12, 1989 Motion for

Partial Summary Judgment shall be expedited.

3. The discovery cutoff date in this action is hereby

continued.

4. All other District Court proceedings regarding

the civil penalties issue, including pleadings or pro-

ceedings as to litigation costs incurred by Plaintiffs

as to those issues, are stayed pending appeal of the

sovereign immunity issue in the Tenth Circuit.

Dated at Denver, Colorado this 24th day of May,

1990.

By THE Court:

/s/ Lewis T. Babcock

LEWIS T. BABCOCK

Judge

35a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

: FOR THE DISTRICT OF COLORADO

Civil Action No. 89-B-76

SIERRA CLUB AND COLORADO ENVIRONMENTAL

COALITION, PLAINTIFFS

vs.

MANUEL LUJAN, JR., Secretary of the Interior, THE

UNITED STATES DEPARTMENT OF THE INTERIOR,

C. DALE DUVALL, Commissioner of Reclamation,

and THE UNITED STATES BUREAU OF RECLAMA-

TION, DEFENDANTS

ORDER REGARDING PLAINTIFFS’ SECOND

MOTION FOR PARTIAL

SUMMARY JUDGMENT

[Filed May 24, 1990]

In this citizen enforcement action under the Clean

Water Act, plaintiffs allege that defendants’ dis-

charges from the Leadville Drainage Tunnel (the

tunnel), in Lake County, Colorado, have violated and

continue to violate effluent limitations set by National

Pollutant Discharge Elimination System (NPDES)

Permit Number CO-0021717 (the permit). Addi-

tionally, plaintiffs allege that defendants have vio-

36a

lated and continue to violate the permit by failing to

take ‘“‘composite samples” when monitoring discharges

from the tunnel and by failing intermittently to sub-

mit timely discharge monitoring reports.’ Plaintiffs,

in their Second Motion for Partial Summary Judg-

ment, request judgment and a declaration that de-

fendants are liable for violations of the Clean Water

Act, that defendants’ violations are continuing, that

plaintiffs have standing to prosecute this action and

that this Court has jurisdiction. Defendants, despite

the denials in their Answer, now admit to the Con-

tinuing Clean Water Act violations that are the sub-

ject of this Order, admit that plaintiffs have standing

and admit that this Court has jurisdiction over the

action. Federal Defendants’ Memorandum in Oppo-

sition to Plaintiffs’ [Second] Motion for Partial Sum-

mary Judgment at 2-3.

Upon consideration of materials submitted by the

parties and the applicable law, this Court has deter-

mined that there are no genuine issues of fact ma-

terial to plaintiffs’ Motion and that plaintiffs are en-

titled to judgment on the issues of liability, stand-

ing and jurisdiction as a matter of law. Accord-

ingly, the Court hereby finds, concludes, orders and

declares the follwing pursuant to the Clean Water

Act, 33 U.S.C. §§ 1251-1387, and the Declaratory

Judgment Act, 28 U.S.C. § 2201(a):

1 Plaintiffs also have alleged that defendants have violated

and continue to violate an administrative order issued by the

United States Environmental Protection Agency (EPA) pur-

suant to the Clean Water Act. Because defendants have ad-

mitted the validity of plaintiffs’ other allegations of Clean

Water Act violations, plaintiffs have withdrawn their allega-

tions with respect to violations of the EPA Order as cumu-

lative.

37a

1. This Court has jurisdiction over the parties and

the subject matter of this action.

2. Plaintiffs have standing to prosecute this ac-

tion.

3. Defendants United States Department of the

Interior (DOI) and United States Bureau of Recla-

mation (BOR) have violated the Clean Water Act

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

1975 by discharging pollutants from the tunnel in

violation of effluent limitations set by the permit and

failing to comply with the permit’s monitoring and

reporting requirements. Defendants Manuel Lujan,

Secretary of the Interior, and C. Dale Duvall, Com-

missioner of Reclamation, have been in violation of

the Act since they assumed their respective positions

as Officers of the United States whose official duties

include causing their agencies to comply with the

Clean Water Act. 33 U.S.C. § 1323(a).

4. Defendants DOI and BOR are liable for at least

six thousand, three hundred and thirty-three (6333)

violations of the Clean Water Act between January

13, 1984 * and May 12, 1989, including:

* One thousand, nine hundred and _ forty-six

(1946) days of continuous violation of the

permits’ effluent limitations for iron, zine and

cadmium (a total of five thousand, eight hun-

dred and thirty-eight (5838) violations) ;

* Twenty-three (23) violations of the permit’s

effluent limitation for copper; eleven (11) vio-

lations of the permit’s limitation for silver;

2 Plaintiffs’ Second Amended Complaint requests injunctive

relief to address continuing violations and civil penalties

for violations since January 13, 1984.

38a

* Four hundred and forty-eight (448) viola-

tions (over sixty-four (64) months) of the

permits’ requirement that the tunnel’s dis-

charge be monitored monthly for each of seven

(7) parameters by taking composite samples;

and

* Thirteen (13) violations of the permit’s re-

quirement that discharge monitoring reports

be postmarked by the 28th day of the month

following each reporting period.

5. All the violations referred to in paragraphs 3

and 4 are continuing and all defendants shall be liable

for future violations as they occur.

6. Plaintiffs’ Second Motion for Summary Judg-

ment, as modified by plaintiffs’ Reply Memorandum

(filed June 22, 1989), is GRANTED.

Dated at Denver, Colorado this 24th day of May,

1989.

By THE CouRT:

/s/ Lewis T. Babcock

LEWIS T. BABCOCK

United States District Judge

39a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 90-1183

(D.C. No. 89-B-0076)

SIERRA CLUB AND COLORADO ENVIRONMENTAL

COALITION, PLAINTIFFS-APPELLEES

Vv.

MANUEL LUJAN, JR., Secretary of the Interior;

UNITED STATES DEPARTMENT OF THE INTERIOR;

C. DALE DUVALL, Commissioner of Reclamation;

THE UNITED STATES BUREAU OF RECLAMATION,

DEFENDANTS-APPELLANTS

JUDGMENT

Entered April 30, 1991

Before MCKAY, ALDISERT,* and McWILLIAMS,

Circuit Judges.

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of Colorado, and was argued by counsel.

* The Honorable Ruggero J. Aldisert, Senior Judge, United

States Court of Appeals for the Third Circuit, sitting by

designation.

40a

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed.

Entered for the Court

/s/ Robert L. Hoecker

ROBERT L. HOECKER

Clerk

a

4la

APPENDIX F

STATUTORY PROVISIONS INVOLVED

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

Act, 33 U.S.C. 1323(a), 1365(a) provide:

§ 1323. Federal facilities pollution control.

(a) Each department, agency, or instrumentality

of the executive, legislative, and judicial branches of

the Federal Government (1) having jurisdiction over

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

tivity resulting, or which may result, in the discharge

or unoff of pollutants, and each officer, agent, or em-

ployee thereof in the performance of his official duties,

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

State, interstate, and local requirements, administra-

tive authority, and process and sanctions respecting

the control and abatement of water pollution in the

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

governmental entity including the payment of rea-

sonable service charges. The preceding sentence shall

apply (A) to any requirement whether substantive

or procedural (including any recordkeeping or report-

ing requirement, any requirement respecting permits

and any other requirement, whatsoever), (B) to the

exercise of any Federal, State, or local administra-

tive authority, and (C) to any process and sanction,

whether enforced in Federal, State, or local courts or

in any other manner. This subsection shall apply

notwithstanding any immunity of such agencies, of-

ficers, agents, or employees under any law or rule

of law. Nothing in this section shall be construed to

prevent any department, agency, or instrumentality

42a

of the Federal Government, or any officer, agent, or

employee thereof in the performance of his official

duties, from removing to the appropriate Federal

district court any proceeding to which the depart-

ment, agency, or instrumentality or officer, agent, or

employee thereof is subject pursuant to this section,

ard any such proceeding may be removed in accord-

ance with Section 1441 et seq. of Title 28. No officer,

agent, or employee of the United States shall be per-

sonally liable for any civil penalty arising from the

performance of his official duties, for which he is not

otherwise liable, and the United States shall be liable

only for those civil penalties arising under Federal

law or imposed by a State or local court to enforce

an order of the process of such court. The President

may exempt any effluent source of any department,

agency, or instrumentality in the executive branch

from compliance with any such a [sic] requirement

if he determines it to be in the paramount interest

of the United States to do so; except that no exemp-

tion may be granted from the requirements of Sec-

tion 1316 or 1317 of this title. No such exemptions

shall be granted due to lack of appropriation unless

the President shall have specifically requested such

appropriation as a part of the budgetary process and

the Congress shall have failed to make available such

requested appropriation. Any exemption shall be for

a period not in excess of one year, but additional ex-

emptions may be granted for periods of not t» excee!

one year upon the President’s making a new deter-

mination. The President shall report each January

to the Congress all exemptions from the requirements

of this section granted during the preceding calendar

year, together with his reason for granting such ex-

emption. In addition to any such exemption of a par-

ei eee A

A i teens BR oat aril a

|

i

|

;

43a

ticular effluent source, the President may, if he de-

termines it to be in the paramount interest of the

United States to do so, issue regulations exempting

from compliance with the requirements of this sec-

tion any weaponry, equipment, aircraft, vessels, ve-

hicles, or other classes or categories of property, and

access to such property, which are owned or operated

by the Armed Forces of the United States (including

the Coast Guard) or by the National Guard of any

State and which are uniquely military in nature.

The President shall reconsider the need for such reg-

ulations at three-year intervals.

§ 1365. Citizens suits.

(a) Authorization; jurisdiction.

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

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

zen may commerce a civil action on his own behalf—

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

United States, and (ii) any other governmental

instrumentality or agency to the extent per-

mitted by the Eleventh Ar ndment to the Con-

stitution) who is alleged to be in violation of

(A) an effluent standard or limitation under

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

ministrator or a State with respect to such a

standard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to per-

form any act or duty under this chapter which

is not discretionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

44a

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

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

Administrator to perform such act or duty, as the

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

alties under Section 1319(d) of this title.

% U. 8. GOVERNMENT PRINTING OFFicE, 1991 26206! 20638