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United States v. Duracell Int'l, Inc.

Citation: 11 ELR 20821
No. No. 80-1017, 510 F. Supp. 154/15 ERC 1962/(M.D. Tenn., 03/16/1981)

The court upholds the constitutionality of § 309(e) of the Federal Water Pollution Control Act (FWPCA), which provides that a state shall be liable for civil penalities assessed against a municipality for violations of a national pollutant discharge elimination system permit or a dredge-and-fill permit, to the extent that state laws prevent the municipality from complying with the judgment. The United States joined Tennessee as a defendant in a suit against the City of Waynesboro for violations of federal water pollution laws in the operation of the Old Waynesboro Dump. The court rejects Tennessee's argument that § 309(e) violates the Tenth Amendment in that it interferes with the sovereignty of the state by altering the relationship between the state and its municipal corporations. Section 309(e) does not hold the state liable without fault for the acts of its municipal corporations but creates liability where the state attempts to prevent municipalities from complying with federal water pollution laws. The court concludes that even a significant financial impact on a state does not render the application of § 309(e) invalid under the Tenth Amendment since environmental protection is not an integral state governmental function. The court also rejects Tennessee's claim that § 309(e) deprives the state of substantive due process under the Fifth Amendment. The clear purpose of § 309(e), to preserve the effectiveness of the Act's civil penalty provisions, furthers a justifiable congressional concern for national pollution control. The Constitution does not outlaw environmental regulation of state defendants and accordingly does not prevent the imposition of civil penalties against them. Finally, the court holds that Tennessee's motion to dismiss for failure to state a claim is premature until such time as a judgment is rendered against the municipality. At that time, the court will determine whether plaintiff may proceed against the state on the judgment.

Counsel for Plaintiff
David O. Ledbetter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3332

Counsel for Defendant
William M. Barrick, Ass't Attorney General
450 James Robertson Pkwy., Nashville TN 37219
(615) 741-1376