Jump to Navigation
Jump to Content

Ohio v. Department of Energy

ELR Citation: 18 ELR 20586
Nos. No. C-1-86-0217, 689 F. Supp. 760/27 ERC 1377/(S.D. Ohio, 03/18/1988)

The court rules that Resource Conservation and Recovery Act (RCRA) §6001 and Federal Water Pollution Control Act (FWPCA) §313 waive the federal government's sovereign immunity from civil penalties imposed by states. RCRA §6001 waives sovereign immunity for "procedural requirements," and the court holds that this includes enforcement devices. Congress added this language in response to the Supreme Court's decision in Hancock v. Train, 6 ELR 20555, which had considered permits as enforcement devices and consequently outside the waiver of immunity from substantive requirements. Although RCRA §6001 specifically lists some procedural requirements as within its scope, and enforcement sanctions are not among them, this does not constitute a complete list of procedural requirements covered. The list begins with the word "including" rather than a word of limitation. Consequently, Ohio can recover under the Ohio Solid Waste Disposal Act, based on this waiver of sovereign immunity, if it can prove the necessary supporting facts to constitute a violation.

The court next holds that FWPCA §313 waives sovereign immunity from civil penalties. The section makes federal agencies liable for sanctions, but qualifies the waiver by providing that the agencies shall only be liable for civil penalties arising under federal law or imposed by a court to enforce a court order or court process. The court holds that a national pollutant discharge elimination system permit program, administered by a state under authorization from the United States Environmental Protection Agency, has penalties which "arise under" federal law. Consequently, Ohio can recover under the Ohio Water Pollution Control Act, based on this waiver of sovereign immunity, if it can prove the necessary supporting facts to constitute a violation.

[The complaint in this case is summarized at ELR PEND. LIT. 65912.]

Counsel for Plaintiff
Jack Van Clay, Monica Frieze
30 E. Broad St., 17th Fl., Columbus OH 43215
(614) 466-2766

Counsel for Defendant
Donetta Wiethe, U.S. Attorney
220 USPO & Cthse., 5th & Walnut Sts., Cincinnati OH 45202
(513) 684-3711