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United States v. Pennsylvania Envtl. Hearing Bd.

ELR Citation: 7 ELR 20730
Nos. No. 73-4545, 431 F. Supp. 747/10 ERC 1100/(M.D. Pa., 05/05/1977)

Plaintiff filed this action seeking a judgment that a civil penalty levied by the state Environmental Hearing Board under the Pennsylvania Clean Streams Law for water pollution discharged from a federally owned, contractor managed ammunition manufacturing plant is uneforceable against the United States and its agents, including the contractor.

Federal installations are shielded from state regulation under the doctrine of sovereign immunity unless there is a clear and specific congressional mandate subjecting them to state power. Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976). The federal government odes not necessarily convey its immunity to agents that do its work, however. Nor does the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§1251 et seq., purport to create immunities from suit for violations of state effluent limitations where none existed before its enactment. Two courts have declined to extend the immunity of the government to an independent contractor who managed a federal ammunition plant. Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969); Foster v. Day & Zimmerman, Inc., 502 F.2d 867 (8th Cir. 1974).

Plaintiff contends that the only permissible avenue of enforcement against the contractor open to the state was a civil action in United States district court based on §313 of the Act, 33 U.S.C. §1323. Administrative imposition of a penalty by the state board is forbidden, in plaintiff's view, because sovereign immunity is waived by the FWPCA only as to such enforcement suits in federal court.

These contentions have merit only if the contractor is a "department, agency or instrumentality" of the federal government, however, which in the court's view it is not. To include the independent contractor defendant in this case within that definition would, by extending a partial shield to the vast number of companies that do business under contract with the federal government, raise new obstacles to enforcement under the FWPCA and flout the environmental concerns that gave impetus to the Act's passage.

The court emphasizes that its refusal to invalidate the Board's imposition of a civil penalty against the contractor in this case does not run afoul of Hancock v. Train, supra. Federal buildings and installations operated directly by the government, such as army bases and post offices, were the intended objects of the limited waiver of immunity in §313. It is violations of state standards by these latter facilities which can be attacked only through filing suit in United States district court.

The full text of this opinion is available from ELR (9 pp. $1.25, ELR Order No. C-1130).

Counsel for Plaintiff
James W. Walker, Ass't U.S. Attorney
P.O. Box 209, Scranton PA 18503
(717) 344-7111

Counsel for Defendants
Dennis J. Harnish, Karin W. Carter
Department of Environmental Resources
202 Evangelical Press Bldg., Harrisburg PA 17105
(717) 787-2814

Muir, J.