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United States v. Pennsylvania Envtl. Hearing Bd.

Citation: 8 ELR 20689
No. No. 77-2041, 584 F.2d 1273/(3d Cir., 08/14/1978) Aff'd

The Third Circuit affirms a district court's refusal to enjoin defendants' imposition of a fine for violation of the Pennsylvania Clean Streams Law upon a private company operating a federal munitions plant under contract with the United States. The court rejects the argument that the fine was barred by sovereign immunity, ruling that the plant operator is not a federal "department, agency or instrumentality" under § 313 of the Federal Water Pollution Control Act Amendments of 1972. The company's contract with the government specifies that it is an independent contractor, not an agency of the government, and that its employees are not government employees. These contractual provisions are particularly significant evidence that the parties did not intend the company to be covered by the cloak of governmental immunity. Noting that Congress in amending § 313 in 1977 further restricted the immunity of acknowledged federal agencies from state pollution controls, the court asserts that broadening this immunity as it relates to the private sector would go against the recent thrust of national environmental policy in this area.

A dissent argues that the district court judgment should be reversed because the board's penalty touches some aspects of the ammunition plant over which the federal government has retained control. Reversal is also required because the board has exceeded its limited authority under § 313 to regulate pollution discharges from federal facilities.

Counsel for Plaintiff-Appellant
James W. Moorman, Ass't Attorney General; Raymond N. Zagone, Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2701

S. John Cottone, U.S. Attorney; James W. Walker, Ass't U.S. Attorney
P.O. Box 309, Scranton PA 18501
(717) 344-7111

Counsel for Defendants-Appellees
Dennis Jay Harnish, Karin W. Carter, Ass't Attorneys General
514 Executive House, Box 2357
101 S. Second St., Harrisburg PA 17120
(717) 787-3391