Yes, We Do Need a Clarification of the CERCLA Sovereign Immunity Waiver

Victoria L. Peters

Editors' Summary: The extent to which the existing version of CERCLA removes the federal government's sovereign immunity has long been a matter of contention between states and several federal agencies. This Dialogue discusses the statutory framework, and describes the manner in which the DOD and DOE have contended that the existing CERCLA "waiver" does not remove the government's immunity shield. The author argues that principles of equity and consistency with other environmental statutes, as well as the goal of environmental remediation of contaminated sites, justify prompt action by Congress to elaborate upon and strengthen the CERCLA provision so that it conforms to language in RCRA.

Victoria L. Peters is a Senior Assistant Attorney General in the CERCLA Litigation unit of the Colorado Attorney General's office. Since 1988 she has provided legal services in various capacities on the Rocky Mountain Arsenal case, and since 1993, she has been an active member of the National Association of Attorneys General's (NAAG's) CERCLA Reauthorization Workgroup and has served as Chairperson of the workgroup's Federal Facilities Subcommittee. Ms. Peters is a Phi Beta Kappa graduate of George Washington University and attended the University of Denver College of Law.

[29 ELR 10602]

In 1990, a task force made up of representatives from the offices of various state attorneys general and governors published a report entitled From Crisis to Commitment: Environmental Cleanup and Compliance at Federal Facilities. The document briefly explained the problem of environmental contamination at sites under the jurisdiction of federal agencies, and included recommendations for improving compliance and expediting cleanup. The first of the recommendations was:

Congress should amend applicable federal laws to clearly waive federal sovereign immunity from the application and enforcement of federal and state environmental laws.¹

It took two years and an intervening adverse U.S. Supreme Court decision,² but in 1992 Congress responded by passing the Federal Facilities Compliance Act (FFCA)³ which, among other things, clarified the waiver of sovereign immunity in the Resource Conservation and Recovery Act (RCRA). It took another four years for Congress to similarly revise the Safe Drinking Water Act (SDWA).⁴ In both cases, the legislation was ultimately supported by the Administration—Bush's and Clinton's respectively.

Efforts to conform the waiver of sovereign immunity in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to those in the FFCA and the SDWA, however, have not been as successful. Since comprehensive CERCLA reauthorization bills were first drafted in 1993, the National Association of Attorneys General (NAAG)⁵ and the National Governor's Association (NGA)⁶, as well as the Association of States and Territorial Solid Waste Management Officials (ASTSWMO)⁷ have [29 ELR 10603] steadfastly insisted that the waiver of sovereign immunity in CERCLA must be clarified. This time, unfortunately, the Administration is taking a contrary position. In a letter dated September 20, 1998, Sherri W. Goodman, Deputy Under Secretary of Defense (Environmental Security), and James M. Owendoff, Acting Assistant Secretary for Environmental Management at the U.S. Department of Energy (DOE) stated that they "cannot support" a bipartisan amendment, introduced by Sens. Wayne Allard and Ron Wyden, which would, among other things, clarify the waiver, and which was passed by the Senate Committee on Public Works and the Environment during markup of the Superfund Cleanup Acceleration Act in the spring of 1998.⁸

The letter was written in response to a request from members of the Senate Armed Services Committee that the U.S. Department of Defense (DOD) and DOE submit a report addressing "(1) any additional costs that might be incurred … as a result of the proposed amendment; and (2) any impact that the amendment may have on the cleanup of Department of Defense and … Energy sites …." This request was contained in the Committee's Report on the Defense Authorization Act for fiscal year (FY) 1999.⁹ The Committee's Report also reflected opinions of some staff and members of the Committee that the amendment was ill considered. In their letter, Ms. Goodman and Mr. Owendoff state their belief that "the current waiver of sovereign immunity under CERCLA is working well, ensuring that Federal agencies follow the same process and meet the same cleanup standards as private parties."¹⁰ They further state that "dissatisfied parties" could "use the amendment to try to subject the cleanups to additional requirements, potentially resulting in controversy, litigation and delay."¹¹

When the DOD and DOE finally submitted the requested report in February 1999, the agencies made similar objections.¹² The Report concludes that (1) the current waiver is working and therefore does not need to be clarified; (2) the potential unintended consequences of the amendment are unclear and troublesome; (3) the amendment would result in disparate treatment of federal facilities; and (4) the amendment would disrupt cleanup programs and the DOD Nationwide Priority Program.

The purpose of this Dialogue is twofold: first, to explain why the current waiver is not sufficient to achieve the stated goal of all parties, i.e., holding federal facilities to the same standard as private parties; second, to clarify misunderstandings reflected in the Senate Report and in the DOD/DOE Report regarding the current state of the law and potential application of the sovereign immunity clarification.

Why Do We Need to Clarify the Sovereign Immunity Waiver in CERCLA?

It's too short.

The Court in Department of Energy v. Ohio confirmed the oft-stated maxims that "(w)aivers of immunity must be 'construed strictly in favor of the sovereign' and not 'enlarged … beyond what the language requires.'"¹³ Essentially, courts have consistently found that if a waiver can reasonably be construed in favor of the government, it must be so construed.¹⁴ This rigid rule of statutory construction makes sovereign immunity waivers extremely difficult to draft, as is evidenced by Congress' expressed frustration with repeated judicial decisions holding that its best attempts to waive immunity remain equivocal and ambiguous.¹⁵ This also explains why sovereign immunity waivers keep getting longer. Approximately 165 words comprise the waivers in § 120(a)(1)¹⁶ and [29 ELR 10604] 120(a)(4)¹⁷ of CERCLA¹⁸; the FFCA has three to four times as many. Even so, the federal government has denied that the FFCA evinces a clear intent to treat federal agencies the same as private parties.¹⁹ When "no loophole … is too small to be found by the federal government,"²⁰ crafty and comprehensive drafting is indicated. This requires a lot of words.

Civil Penalties

Several of the words included in the FFCA but not present in CERCLA clarify Congress' intent that the federal government be subject to civil penalties for violating environmental laws. These words were added to the RCRA waiver after the Supreme Court found in Department of Energy²¹ that such intent was not clear and unequivocal in the previous RCRA sovereign immunity waiver.²² In at least one instance, a federal circuit court likewise found that "CERCLA § 120, … does not provide an adequately clear waiver of sovereign immunity from civil penalties …."²³ Contrary to statements in the DOD/DOE Report,²⁴ it is currently the position of the U.S. Department of Justice (DOJ) that federal agencies are not subject to civil penalties under CERCLA because Congress has not waived their sovereign immunity.²⁵ To ensure that the Federal government is subject to civil penalties to the same extent as private parties, Congress must clarify the waiver in CERCLA to specifically cover punitive as well as coercive fines.²⁶ "Fines" include those set forth in § 121(e)(2)²⁷ for violations of consent decrees, § 106(b)²⁸ for violations of orders, and § 109²⁹ for violations of § 103³⁰ notice and destruction of records provisions, as well as violations of orders, consent decrees, and agreements.

Formerly Used Federal Sites

Under CERCLA, "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, … shall be liable for … [costs of responding to the release as well as natural resource damages]."³¹ Similar provisions exist in many state "mini-superfund" laws. The federal government, however, has argued that its sovereign immunity from suit under state environmental laws has only been waived for currently owned and operated facilities. Because of the use of the present tense in § 120(a)(4), courts have agreed with this argument.³² Clarification of the waiver of sovereign [29 ELR 10605] immunity in CERCLA to include formerly owned and utilized sites is essential to enable states to enforce their laws at Formerly Used Defense Sites (FUDS),³³ Formerly Used Sites Remedial Action Program sites (FUSRAPs),³⁴ and any other sites where federal agencies owned or operated facilities while disposal activities were taking place, or where federal agencies themselves generated, transported, or arranged for disposal of hazardous substances.

FUDS alone constitute thousands of sites, many of which pose imminent or potential threats to surrounding communities.³⁵ In 1998, ASTSWMO surveyed its members to ascertain the level of confidence that states had in the DOD's no further action (NOFA) determinations.³⁶ The results of the survey indicated that over half of the responding 39 states "had reason to believe that the U.S. Army Corps of Engineers has not made sound environmental decisions regarding NOFA determinations at FUDS."³⁷ In addition, 6 states have conducted their own environmental or health assessments at 66 NOFA sites and found that "approximately half of these sites (thirty-two) required further action."³⁸ Ohio has been one of the more active states on this issue. A preliminary study conducted by the Ohio Environmental Protection Agency (EPA) turned up 12 FUDS on which are located schools and training facilities, including 1 former missile silo that currently houses a school for children with mental deficiencies.³⁹ Another site, the Marion Army Engineering Depot, is under investigation by NBC Dateline "due to the number of cancer cases from students attending this school."⁴⁰ Ohio predicts that "at the current rate of funding, [the Corps of Engineers] will not complete the remediation of all FUDs sites until 2090."⁴¹ States are not the only ones dissatisfied with this rate of progress. The Senate Appropriations Committee, in reporting out the FY00 defense appropriations bill last May, again added money to the Administration's FUDS request—this time, $ 40 million—and established a distinct FUDS account that "would provide better visibility for the Army's executive agency responsibility to provide adequate funds for the cleanup of these sites."⁴²

It is not surprising that, according to one trade publication, recent EPA attempts to regulate FUDS have met with staunch resistance from the DOD. "The [Nansemond Ordnance Depot in Portsmouth, Virginia] has raised ire from the Defense Department because EPA has proposed treating the Corps in the same way as any private potentially responsible party (PRP), which military sources say undermines their own cleanup authority and may violate federal law."⁴³ Clearly, a legislative change is needed to effect a course correction for the FUDS program.

External Regulation

Because the waiver in § 120(a)(4) does not contain all of the unequivocal language that is in the amended RCRA and SDWA waivers, the DOD denies that CERCLA effects a waiver of immunity from state actions at all. Rather, it argues that § 120(a)(4) merely requires federal agencies to comply with the substantive provisions of state laws as applicable or relevant and appropriate requirements (ARARs).⁴⁴ Furthermore, it insists that because of CERCLA's § 113(h)⁴⁵ preenforcement review ban, states cannot enforce their laws until after the remedial action under CERCLA is completed.⁴⁶ Although this reading is inconsistent with legal precedents,⁴⁷ the DOD's refusal to recognize its responsibility to comply with state environmental laws to the same extent as private parties forces state regulators to either litigate (which is difficult to do under tight budgets, and is not guaranteed to be successful), or to compromise their authority. Thus, federal agencies are, in practice, not being held to the same standard as are private parties.

The federal agencies' position that they need only comply with "substantive provisions" is a position to be envied by private parties; however, it is not consistent with the professed goal of equal treatment under the law. Under the DOD's interpretation, it is the federal polluter who determines if the state standard is an ARAR, and the federal polluter who can choose to waive compliance with the standard pursuant to § 121(d)(4). In addition, it is the federal polluter, not the state regulator, who interprets the standard, and determines how the standard would apply to a site. The polluter, under the federal government's interpretation of the statute, substitutes its own professional judgment for that of the state regulator. Such an interpretation robs the provision [29 ELR 10606] of any meaning, and allows federal polluters obvious advantages not enjoyed by private parties.

This situation is particularly egregious at federal sites that are not on the national priorities list (NPL). At NPL sites EPA, pursuant to § 120, ostensibly has ultimate remedy selection authority. At non-NPL sites, however, federal polluters are generally not subject to oversight by EPA, but many still refuse to acknowledge the regulatory authority of states. Instead, these federal polluters insist on "regulating" themselves. As explained in a letter from Chief Counsel James Hise to Assistant Attorney General Steve Shackman, "the [DOD] has been delegated [pursuant to Executive Order 12580] the cleanup responsibilities under [CERCLA] at federal defense facilities and cannot give up that authority to any state."⁴⁸ The waiver of sovereign immunity in CERCLA must be clarified to reflect Congress' intent, when it passed the Superfund Amendments and Reauthorization Act of 1986, that non-NPL sites be subject to all state environmental laws.

In a recent memo, the Air Force's legal counsel makes it clear that retaining control of cleanup decisions is a higher priority than creating productive working relationships with regulators. Among other things, this memo responds to "commonly encountered" questions. One such question is the following: "Good relations with regulators are critical to a successful cleanup program. If getting permits helps create a better overall working relationship with regulators, isn't it better for our program in the long run to just get permits?"⁴⁹ To this the authors respond in part as follows:

No ….

Under DERP [Defense Environmental Response Program] and CERCLA, we make ARARs determinations and select response actions, subject to limitations in CERCLA Section 120(e)(4) [Interagency Agreement provisions] and dispute resolution provisions in FFAs [Federal Facility Agreements which only apply at NPL sites]. In a permitting process, the state or local regulators would in essence determine substantive requirements of our response actions.⁵⁰

Obviously, private parties do not enjoy the privileges so jealously guarded by the DOD.

With regard to the application of the § 113(h) preenforcement review ban, it should be noted that, contrary to the Senate Report,⁵¹ only one existing court case addresses whether § 113(h) precludes a state from enforcing its own laws prior to completion of a remedy at a non-NPL site. In that case, United States v. Colorado,⁵² the court held that it did not. Thus, the Senate Report's statement that § 120(a)(4) is subject to the § 113(h) preenforcement review ban does not accurately reflect the current state of the law. However, it is reflective of the federal agencies' axiomatic refusal to acknowledge that they are subject to state enforcement.

If a state does not pass a law pursuant to a federal program that includes a waiver, for example under RCRA or the Clean Water Act (CWA), the law is not enforceable against the federal government unless Congress also enacts a clear and comprehensive waiver that includes such state laws. Unfortunately, as discussed above, the language currently employed in § 120(a)(4) has not proven to be effective.⁵³ A more comprehensive and unequivocal CERCLA waiver is necessary to ensure the enforceability of all state environmental laws that address releases or threatened releases of hazardous substances, pollutants, and contaminants.

EPA Empowerment

Although distinct from the sovereign immunity issue, the Allard/Wyden Amendment also borrowed from the FFCA language that would enable EPA to issue orders against sister agencies without first obtaining permission from the DOJ attorneys who, under the unitary executive theory, also represent the polluting agencies. Specifically, the amendment provides that

the Administrator may issue an order under section 106 of this Act to any department, agency, or instrumentality of the executive, legislative, or judicial branch of the United States. The Administrator shall initiate an administrative enforcement action against such a department, agency, or instrumentality in the same manner and under the same circumstances as action would be initiated against any other person.⁵⁴

This language is necessary to supersede Exec. Order No. 12580, which provides that the "authority under Sections 104(e)(5)(A) and 106(a) of the Act to seek information, entry, inspection, samples, or response actions from Executive departments and agencies may be exercised only with the concurrence of the Attorney General."⁵⁵ Although the new language would not be sufficient to enable EPA to regulate its sister agencies with the same autonomy that states would enjoy, it would at least strengthen the Agency's hand to some degree and is therefore desirable and strongly supported by states.⁵⁶

[29 ELR 10607]

The Arguments Against Clarifying the CERCLA Waiver—Debunked

The Amendment Would Not Create Confusion and Ambiguity

The Senate authors and the DOD/DOE imply in their reports that under current law the respective roles of state and federal regulators and federal polluters are immutably set and universally understood, and that passage of the Allard/Wyden Amendment would essentially result in chaos because it would allow parties to argue that state laws are directly enforceable at CERCLA sites. These representations are inaccurate.

As numerous courts have held, "CERCLA is not a paradigm of clarity or precision."⁵⁷ The interaction between CERCLA and state laws, in short the "RCRA/CERCLA interface," has been fiercely contested, and even litigated. In the clearest statement of the relationship, the Tenth Circuit in Colorado held that

§§ 9614(a) and 9652(d) expressly contemplate the applicability of other federal and state hazardous waste laws regardless of whether a CERCLA response action is underway. Given that RCRA clearly applies during the closure period of a regulated facility, [citations omitted] the ARAR's provision cannot be the exclusive means of state involvement in the cleanup of a site subject to both RCRA and CERCLA authority.⁵⁸

Indeed, current interagency agreements (IAGs) to which states are parties invariably reserve the states' right to pursue their own state remedies in the event that disputes are not resolved to their satisfaction.⁵⁹

Thus, the Senate and the DOD/DOE Reports oversimplify and misrepresent the current state of the law. It is not accepted that CERCLA preempts state laws.⁶⁰ In fact, as the court in Colorado pointed out, it is even more clear that CERCLA does not preempt regarding federal facilities because, in addition to § 114(a)⁶¹ and § 302(d)⁶² the Act at § 120(i)⁶³ expressly provides that "nothing in this section shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any requirement of the Solid Waste Disposal Act (including corrective action requirements)."⁶⁴ Implementation of the Solid Waste Disposal Act occurs at the state level, with states enforcing their own EPA-approved laws in lieu of the federal Act. Therefore, Congress clearly intended that states enforce their laws despite ongoing CERCLA cleanup activities.

The Administration recognized that CERCLA and governing case law establish "dual regulation" when it sponsored its CERCLA reauthorization bill in 1994. Federal agencies, congressional staff, and state representatives spent a significant amount of time negotiating provisions that would address the duplication inherent in dual regulation without preempting state law, an outcome unacceptable to the states and most members of Congress. The result of those negotiations, among many other provisions, was essentially the language reflected in the Allard/Wyden Amendment. This language was expressly designed to minimize any disruption to the status quo regarding the independent enforcement of state laws at CERCLA sites.

Private parties do not enjoy sovereign immunity. By clarifying the waiver of sovereign immunity, Congress would not amend the underlying substantive law; moreover, it would not fundamentally redefine the relationship between CERCLA and state law. Rather, it would eliminate one defense to enforcement, a defense unique to the federal government. Passage of the amendment will not create any ambiguity and uncertainty that does not already exist at CERCLA NPL sites; it will, however, increase the states' ability to enforce CERCLA and their own state laws.

The Amendment Would Not Result in Disparate Treatment of Federal Facilities

The DOD/DOE Report repeatedly states that if the Allard/Wyden Amendment were passed, it could be interpreted by others as depriving federal facilities of the protections of § 113(h) (preenforcement review ban), § 121(e)(1) (permit exemption),⁶⁵ and the ARARs provisions of CERCLA, including waivers, as well as the limitations on recovery of attorneys fees established in Key Tronic Corp. v. United States.⁶⁶ It concludes that, since private parties enjoy these protections, such an interpretation would result in the imposition of more stringent requirements on federal facilities. The authors acknowledge that such arguments would likely fail; however, they cite the possibility of such arguments as reasons to oppose the amendment.

The language in the Allard/Wyden Amendment could not be interpreted as feared by the DOD/DOE. As discussed above, sovereign immunity waivers do not change the underlying substantive provisions of the law. The amendment would not upset the scheme currently set forth in CERCLA; it would not repeal § 121(d)(4) (ARARs waivers),⁶⁷ § 121(e)(1) or § 113(h), or preclude federal agencies from arguing that those provisions relieve them of responsibility to comply with state and local laws. Nor would it overturn the [29 ELR 10608] limitation on recovering attorneys fees set forth in Key Tronic. It would merely clarify the original intent of Congress to hold the federal government to the same standard as private individuals and corporations—the oft-cited goal of states and Congress as well as the current and previous administrations.⁶⁸

Furthermore, the amendment subjects federal agencies to environmental laws only "to the same extent as any nongovernmental entity is subject to those provisions of law."⁶⁹ And it expressly limits the waiver "to the extent that a State law would apply any standard or requirement to the Federal department, agency, or instrumentality in a manner that is more stringent than the manner in which the standard or requirement would apply to any other person."⁷⁰ Therefore, if a party attempted to treat a federal agency disparately, the agency could again assert immunity. Courts have held that if there is the slightest ambiguity regarding the scope of a sovereign immunity waiver, they will find that a waiver was not intended.⁷¹

Enactment of the Amendment Would Not Delay Cleanups

Disruption

The DOD/DOE argue on the one hand that a clarified waiver is unnecessary because under the current law they already comply with state law to the same extent as private parties. At the same time, they claim that if the amendment were passed it would completely disrupt the ongoing process. Obviously, if the agencies are currently in compliance and cooperating with state regulators, little or no disruption would be anticipated. If major disruption occurred it would reflect the fact that the facilities were out of compliance, and had not obtained the concurrence of state regulators. In such an event, a short-term adjustment would be preferable to a long-term situation where federal agencies were allowed to continue to practice "self-regulation."

It should be remembered, however, that the amendment would merely put federal facilities in the same position as private parties with regard to compliance with state law. There is no evidence that states have delayed private-party or EPA-funded cleanups by requiring adherence to procedural requirements, and there is no motivation for states to delay cleanups at federal facilities. States have historically pushed for faster cleanups at these sites.

In the early 1990s, the DOD and DOE at first vociferously objected to passage of the FFCA which clarified the sovereign immunity waiver in RCRA. Their objections were the same as those expressed in their February Report—that states would assert their RCRA jurisdiction at NPL sites and throw cleanups into a morass of litigation. Seven years later, despite the fact that most federal facilities are also subject to RCRA, passage of the FFCA has not resulted in cleanup delays. Rather, it has engendered many cooperative agreements among states, EPA, and federal polluters to address contaminated sites in a responsible and efficient manner, pursuant to appropriate state and federal laws.

Prioritization

In the Report, the DOD argues that the "S.8 amendment could diminish its lead agency authority and disrupt its relative risk priority schedule."⁷² Again, this argument was urged during the FFCA debate; again, the DOD's fears have proven to be unfounded. The issue of prioritization is one that has been exhaustively debated, most notably in the context of the EPA-chartered federal advisory committee which drafted the Federal Facility Environmental Restoration Dialogue Committee Report (FFERDC). This report, which reflected the views of states, citizens, and tribes as well as EPA and polluting federal agencies, recommends a responsible, common-sense, consensus-driven approach for reordering priorities based upon appropriation short-falls. These recommendations were endorsed by EPA and the federal agencies, and reflect an approach palatable to most states and citizens. What is not palatable is the DOD's suggestion that it should decide unilaterally whether and when to comply with environmental laws. Such an attitude violates the fundamental principle embraced by Congress that all federal agencies comply to the same extent as private parties.

Costs

The DOD suggests that passage of the Allard/Wyden Amendment would result in significant cost increases to the program. These "projections" are grossly distorted and unfounded. Although a thorough analysis of these cost estimates provided by the DOD (it is interesting to note that DOE refused to provide such "estimates" because they were deemed too speculative) is beyond the scope of this Dialogue, I merely point out that (1) state cleanup programs have proven themselves to be efficient and cost-effective; (2) states have a record of saving federal facilities money with cost-cutting suggestions;⁷³ (3) the costs of obtaining permits would not add to current program costs as most of these costs, for example characterization and alternative analysis, would be incurred regardless of whether permits were required; and (4) to the extent that a remedy would cost more if the amendment were passed, such expense would not exceed that which would be faced by a private party under identical circumstances.

In reality, the states' enforcement abilities are always limited by Congress' willingness to appropriate funds. For this reason, despite states' best efforts, federal facilities will always have an advantage over private parties. If, for example, Congress declines to provide funding for assessed penalties, those penalties will not be paid. States believe, nonetheless, that the federal agencies should be held accountable under environmental laws to the same extent as their private counterparts.

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Conclusion

The fundamental question of whether Congress should allow states to regulate federal facilities just as they regulate private parties and local governments, or whether Congress should rely on the federal government to police itself, has been the subject of heated debate. As mentioned above, however, the basic premise that the federal government should be held to the same standards as private parties has been widely accepted not only by Congress, but also by this Administration.⁷⁴ As Thomas Grumbly, then-Assistant Secretary for Environmental Management at DOE, stated in a December 23, 1994, letter to the New York Times, "the principle of living by the same rules that the government imposes on others is an important stake that has been driven deeply into the ground by both Republicans and Democrats."⁷⁵ He went on to state that "[an] article indicating that I said that 'the agency has decided to ask Congress to amend laws like the … Federal Facilities Compliance Act …' is not only absolutely false, but has raised serious concerns among state government readers of your paper throughout the country about our credibility."⁷⁶ The same could be said of any Administration efforts to block the clarification of the sovereign immunity waiver in CERCLA.

As explained above, a clarification of CERCLA's waiver of sovereign immunity is sorely needed to ensure that the federal government complies with environmental laws to the same extent as private parties. The painfully negotiated and carefully drafted language in the Allard/Wyden Amendment (and H.R.617, co-sponsored by Rep. Diana DeGette (D-Colo.) and Rep. Charles Norwood (R-Ga.)) accomplish the goals identified by state officers throughout the country without disrupting the underlying regulatory scheme. The DOD's complaints that its program will be disrupted bespeaks an unwillingness to submit to such equal treatment, a position that is inconsistent with the repeated, express intent of Congress, the will of the states and the people, and the DOD's own rhetoric.

Contrary to assertions in the DOD/DOE Report, the current waiver of sovereign immunity in CERCLA is not working. It is sufficiently ambiguous to allow federal agencies to argue that states cannot enforce their environmental laws against federal facilities or recover penalties for violations. The language in H.R. 617 and the Allard/Wyden Amendment would strengthen the waiver, thereby providing equal treatment under the law. It would also bolster EPA in its efforts to obtain compliance from its sister agencies. And it would do so without subjecting federal facilities to more stringent standards than are imposed on private parties or significantly disrupting ongoing cleanup programs. Congress should enact these provisions into law as quickly as possible.

1. NATIONAL GOVERNOR'S ASS'N & NATIONAL ASS'N OF ATTORNEYS GENERAL, FROM CRISIS TO COMMITMENT: ENVTL. CLEANUP AND COMPLIANCE AT FEDERAL FACILITIES, REPORT OF THE NGANAAG TASK FORCE ON FEDERAL FACILITIES (1990).

2. Department of Energy v. Ohio, 503 U.S. 607, 22 ELR 20804 (1992) (concluding among other things that the statutory phrase "all … requirements" was not sufficiently unambiguous to waive sovereign immunity from civil penalties for past violations).

3. Pub. L. No. 102-386, 106 Stat. 1505 (signed by President George Bush on October 6, 1992), amending 42 U.S.C. § 6961(a), ELR STAT. RCRA § 6001(a). The legislation overruled Department of Energy by amending RCRA to expressly provide that sovereign immunity is waived for "all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature …." FFCA § 102(a), 42 U.S.C. § 6961(a), ELR STAT. RCRA § 6001(a).

4. Pub. L. No. 104-182, 110 Stat. 1660-62 (1996), amending the SDWA of 1974, 42 U.S.C. § 300j-6, ELR STAT. SDWA § 1447.

5. NAAG resolution adopted at summer meeting, July 7-10, 1993, Chicago, Illinois; NAAG resolution adopted at summer meeting, June 22-26, 1997; NAAG resolution adopted at spring meeting, March 24-26, 1999, Washington, D.C. See also letter dated July 26, 1999, from 41 attorneys general to the leadership of the Senate Committee on Armed Services refuting the U.S. Department of Defense/U.S. Department of Energy (DOD/DOE) claims that clarification of CERCLA waiver is unnecessary and undesirable.

6. NGA policy on Superfund, as revised at 1997 winter meeting.

7. Letter from Jim Warner, President, ASTSWMO, to Representative DeGette (Apr. 5, 1999) supporting H.R. 617, which would have clarified the waiver of sovereign immunity: ASTSWMO Policy Position on Federal Facilities, approved January 13-14, 1992, Retained and Revised by the Board of Directors. January 12-13, 1998.

8. Letter from Sherri W. Goodman, Deputy Under Secretary of Defense (Environmental Security) and James M. Owendoff, Acting Assistant Secretary for Environmental Management, DOE, to Floyd Spence, Chairman, Committee on National Security (Sept. 20, 1998) [hereinafter Goodman & Owendoff letter]. (It should be noted that this position is contrary to that previously taken by the DOD. In a letter dated July 28, 1994, from John Deutsch, Deputy Secretary of the DOD to Representative Dingell, the DOD supported the federal facility provisions that had been negotiated between the states and the Administration, including the U.S. Environmental Protection Agency (EPA) and the DOD. These provisions included a clarification of the sovereign immunity waiver.) In a remarkably similar Letter from Fred Hansen, Deputy Administrator, EPA and John Hauvre, Deputy Secretary of Defense to the Hon. John H. Chafee (May 5, 1998), EPA concurred that "provisions in the waiver of sovereign immunity amendment could disrupt the current cleanup decision-making process, which is working well, and lead to new disputes and cleanup delays."

9. S. REP. NO. 105-189, 105th Cong. (1998).

10. See Goodman & Owendoff letter, supra note 8.

11. Id.

12. DOD/DOE, POTENTIAL IMPACTS OF THE PROPOSED AMENDMENT TO THE CERCLA WAIVER OF SOVEREIGN IMMUNITY, REPORT TO CONGRESS BY DEPARTMENTS OF DEFENSE AND ENERGY (Feb. 1999).

13. 503 U.S. 607, 615, 22 ELR 20804, 20805. See also United States v. King, 395 U.S. 1, 4 (1969).

14. See, e.g., Schillinger v. United States, 155 U.S. 163, 166 (1894) ("beyond the letter of such consent, the courts may not go, no matter how beneficial they may deem or in fact might be their possession of a larger jurisdiction over the liabilities of the Government"). For a brief period, the Supreme Court tinkered with a more liberal approach to the issue. See Indian Towing Co. v. United States, 350 U.S. 61, 68 (1955) (look to purposes for which legislation was enacted in determining scope of waiver provision); Federal Housing Admin., Region No. 4 v. Burr, 309 U.S. 242, 245 (1940) (waiver statutes ought to be "liberally construed"; United States v. Shaw, 309 U.S. 495, 501 (1940) ("A sense of justice has brought a progressive relaxation by legislative enactments of the rigor of the immunity rule.").

15. See H.R. REP. NO. 111, at 5 (1991) reprinted in 1992 U.S.C.C.A.N. 1287, 1291. The congressional history shows that Congress repeatedly emphasized an intent to "reaffirm" and "clarify existing language," and referenced testimony by the Assistant Attorney General, Land and Natural Resources Division "that the language of this legislation evidences a clear and effective waiver of the sovereign immunity of the United States from civil and administrative penalties for violations of our hazardous waste laws." Id. at 15. See also Adam Babich, Our Federalism, Our Hazardous Waste, and Our Good Fortune, 54 MD. L. REV. 1516 (1995), regarding Congress' efforts to draft a Clean Water Act waiver that would be recognized by the courts.

16. Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title. Nothing in this section shall be construed to affect the liability of any person or entity under sections 9606 and 9607 of this title.

42 U.S.C. § 9620(a)(1), ELR STAT. CERCLA § 120(a)(1).

17. State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States or facilities that are subject of a deferral under subsection (h)(3)(c) of this section when such facilities are not included on the National Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which arenot owned or operated by any such department, agency, or instrumentality.

Id. § 9620(a)(4), ELR STAT. CERCLA § 120(a)(4). It should be noted that, according to the DOD, § 120(a)(4) is not a waiver at all. This argument is discussed infra at notes 34-36 and accompanying text.

18. See, e.g., Paul S. Weiland, CERCLA Cleanup at Federal Facilities: The Misunderstood Relationship Between Sections 104, 113(h), and 120, 28 ELR 10311 (June 1998).

19. See, e.g., United States v. New Mexico, 32 F.3d 494, 24 ELR 21354 (10th Cir. 1994); Letter from Mark W. Hanson, Assistant District Counsel for the Army, to Leslie A. Pearson, State On-Scene Coordinator for the state of Alaska, regarding Formerly Used Defense Site (FUDs) at Dutch Harbor, Alaska (Sept. 23, 1994). ("It is the Omaha District's position that the [RCRA] waiver of sovereign immunity is limited to management facilities or disposal sites currently under the jurisdiction of the United States.")

20. 132 CONG. REC. S14903 (daily ed. Oct. 3, 1986) (statement of Sen. Stafford). The statement is regarding the woeful environmental record of the federal government.

21. 503 U.S. 607, 22 ELR 20804 (1992).

22. A DOJ attempt to extend Department of Energy to the Clean Air Act (CAA) was recently foiled by the Sixth Circuit. On July 22, 1999, the court of appeals upheld the Tennessee district court's decision that the CAA did effectively waive sovereign immunity for punitive fines. United States v. Tennessee Air Pollution Control Bd., No. 97-5715, 1999 Fed. App. 0266P (6th Cir. July 22, 1999); 29 ELR UPDATE No. 22 (Aug. 2, 1999). Its analysis, unfortunately, cannot be readily applied to CERCLA. The Sixth Circuit was "sympathetic" to the district court's reading of the "federal facility" provision to waive immunity (42 U.S.C. § 7418(a)), but rested its own appellate decision on another section of the CAA, the "state suit" provision at 42 U.S.C. § 7604(e). The "state suit" provision reads as follows:

Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate authority from—

(1) bringing any enforcement action or obtaining any judicial remedy or sanction in any State or local court, or

(2) bringing any administrative enforcement action or obtaining any administrative remedy or sanction in any State or local administrative agency, department or instrumentality.

against the United States … under State or local law respecting control and abatement of air pollution. For provisions requiring compliance by the United States … in the same manner as nongovernmental entities, see section 7418 of this title.

A provision parallel to this "state suit" language does not exist in CERCLA.

23. Maine v. Department of the Navy, 973 F.2d 1007, 1011, 23 ELR 20211, 20213 (1st Cir. 1992).

24. Supra note 12, at 4.

25. Mary Elizabeth Ward, Assistant Chief, Environmental Defense Section, Environment and Natural Resources Division, U.S. Department of Justice, Presentation at the 28th Annual Conference on Environmental Law (Mar. 11-14, 1999, Keystone, Colo.).

26. Coercive penalties are imposed to induce compliance with injunctions or other judicial orders designed to modify behavior prospectively; punitive fines are imposed to punish past violations. For a discussion of the difference, see Department of Energy v. Ohio, 503 U.S. 607, 22 ELR 20804 (1992).

27. 42 U.S.C. § 9621(e)(2), ELR STAT. CERCLA § 121(e)(2).

28. Id. § 9606(b), ELR STAT. CERCLA § 106(b).

29. Id. § 9609, ELR STAT. CERCLA § 109.

30. Id. § 9603, ELR STAT. CERCLA § 103.

31. Id. § 9607(a)(2), ELR STAT. CERCLA § 107(a)(2).

32. Rospatch Jessco Corp. v. Chrysler Corp., 829 F. Supp. 224, 228 (W.D. Mich. 1993) ("This Court believes that the waiver of sovereign immunity in section 9620(a)(4) applies only to facilities currently owned or operated by the United States.") See also Redland Soccer Club v. Department of the Army, 801 F. Supp. 1432 (M.D. Pa. 1992); Crowley Marine Servs., Inc. v. Fednav Ltd., 915 F. Supp. 218, 222, 26 ELR 21105, 21106 (E.D. Wash. 1995) ("To the extent that Plaintiffs allege the United States is responsible for property not currently owned by the United States, the court finds the reasoning of Redland Soccer Club, Inc. v. Department of Army [citations deleted] persuasive. Therefore, the United States can not [sic] be held liable for any sites not currently owned or operated by the United States.") But see Tenaya Assocs. Ltd. Partnership v. U.S. Forest Serv., No. CV-F-92-5375 REC., 1995 WL 433290, at *2 (E.D. Cal. 1993) ("It is quite clear from the language of § 9620(a)(4) that the waiver expressed therein is meant to include all actions brought against the United States for harms which occur during a time when the United States owns or operates a facility."). See also U.S. ARMY CORPS OF ENGINEERS, DIRECTORATE OF MILITARY PROGRAMS, DIVISION OF ENVIRONMENTAL RESTORATION, PROGRAM MANUAL FOR FORMERLY USED DEFENSE SITES, JULY 1996 AND DRAFT REVISIONS, July 1999.

33. According to the DOD, as of September 30, 1997, there were 9,078 properties "identified for potential inclusion in the [FUDS] program … and 2,541 properties identified as requiring environmental response actions." U.S. DOD, DEFENSE ENVIRONMENTAL RESTORATION PROGRAM 1997 ANNUAL REPORT TO CONGRESS 74-75 (1998).

34. There are 23 FUSRAP sites. U.S. DOE, PATHS TO CLOSURE (1998).

35. See, e.g., Letter from Stan Phillippe, Chair, ASTSWMO Federal Facilities Subcommittee, to Sherri Goodman, Deputy Under Secretary of Defense (Environmental Security) (Dec. 7, 1998) describing the scope of the problems with the existing FUDS program, and the potential threats posed by uninvestigated and unremediated sites.

36. Survey of the States' (sic) on the Status of NOFA Review Efforts at Formerly Used Defense Sites, ASTSWMO Current Issues Task Force (1998) [hereinafter ASTSWMO Task Force].

37. Id. at i.

38. Id.

39. Memorandum from Bonnie Buthker, OFFO/SWDO and Graham Mitchell, OFFO/SWDO, to Christopher Jones, Director and Jenny Tiell, Assistant Director (Apr. 23, 1999).

40. See ASTSWMO Task Force, supra note 36.

41. See supra note 39.

42. Defense Environment Alert, June 1, 1999, at 5 (quoting S. REP. NO. 106-50, at 276 (1990)).

43. SUPERFUND REPORT, June 23, 1999, at 15.

44. See, e.g., Letter from James Hise, Chief Counsel, National Guard Bureau, to Steve Shackman, Assistant Attorney General (Sept. 13, 1996) regarding Duluth Air Force Base State Superfund Site, "compliance with a state CERCLA law's substantive requirements, via the ARARs process [which includes provisions to waive ARARS], fulfills CERCLA's legal requirements." See also S. REP. NO. 105-189, 105th Cong., at 287 (1998).

45. 42 U.S.C. § 9613(h), ELR STAT. CERCLA § 113(h).

46. See SUPERFUND REPORT, supra note 43.

47. Colorado v. United States, 707 F. Supp. 1562 (D. Colo. 1989). See also United States v. Colorado, 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), in which the court held that listing on the national priorities list (NPL) did not eliminate the state's ability to enforce its hazardous waste law at the Rocky Mountain Arsenal.

48. Supra note 44.

49. Memorandum from AFLSA/JACE to SAF/GCN, SAF/MIQ (Feb. 1, 1999).

50. Id.

51. See S. REP. NO. 105-189, 105th Cong. (1998).

52. 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993). See SUPERFUND REPORT, supra note 43. See Vicky L. Peters, Laura E. Perrault, and Susan Mackay Smith, Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision, 23 ELR 10419 (July 1993).

53. But see United States v. Pennsylvania Dep't of Envtl. Resources, 778 F. Supp. 1328, 1332 (M.D. Pa. 1991) ("We conclude that CERCLA section 9620(a)(4) waives the sovereign immunity of the United States from suit under the [Pennsylvania Clean Streams Law and the Solid Waste Management Act].").

54. S. REP. NO. 105-192, 105th Cong. (1998).

55. Exec. Order No. 12580, 52 Fed. Reg. 2923 (1987), ADMIN. MAT. 45031, 45032.

56. EPA recognized its enforcement limitations at federal facilities in its Federal Facility Compliance Strategy, issued November 1988:

States are not subject to the same constraints as EPA regarding enforcement actions against Federal facilities. As a result, states generally may exercise a broader range of authorities and enforcement tools than EPA to address violations at Federal facilities. States should use the full range of their enforcement authorities to address Federal facility violations to the same extent they are used for non-federal facilities while meeting the requirements of timely and appropriate enforcement response.

OFFICE OF FEDERAL ACTIVITIES. U.S. EPA, FEDERAL FACILITIES COMPLIANCE STRATEGY—YELLOW BOOK VII-1 (1988).

57. See, e.g., Artesian Water Co. v. Government of New Castle County, 851 F.2d 643, 648, 18 ELR 21012, 21014 (3d Cir. 1988).

58. Colorado, 990 F.2d at 1581, 23 ELR at 20806.

59. See also Letter from Jesse R. Huff,Director, California Department of Toxic Substances Control, to Rear Admiral Veronica Froman (Dec. 18, 1998). ("[Navy] projects are subject to state and federal corrective action and approval by the state is required by law. Consequently, the Navy cannot proceed without state oversight and approval.")

60. Manor Care, Inc. v. Yaskin, 950 F.2d 122, 22 ELR 20320 (3d Cir. 1991) (CERCLA does not preempt the New Jersey Compensation and Control Act); City of Chesapeake v. Sutton Enterprises, 138 F.R.D. 468 (E.D. Va. 1990) ("Congress never intended to preempt state and local officials from enforcing supplemental laws"); Boone v. Dubose, 718 F. Supp. 479 (M.D. La. 1988) ("Congress did not expressly or inferentially intend for federal laws to be preemptive when it enacted CERCLA ….").

61. 42 U.S.C. § 9614(a), ELR STAT. CERCLA § 114(a). "Nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State."

62. Id. § 9652(d), ELR STAT. CERCLA § 302(d). "Nothing in this chapter shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants."

63. Id. § 9620(i), ELR STAT. CERCLA § 120(i).

64. Id.

65. Id. § 9621(e)(1), ELR STAT. CERCLA § 121(e)(1).

66. 114 S. Ct. 1960, 24 ELR 20955 (1994).

67. 42 U.S.C. § 9621(d)(4), ELR STAT. CERCLA § 121(d)(4).

68. See, e.g., Letter from Tim Fields, Acting Assistant Administrator EPA, to Attorney General Peter Verniero, New Jersey (Aug. 15, 1997) [hereinafter Fields letter] ("I believe that the Administrator's Superfund Legislative Reform Principles ensure that federal facilities are subject to the same standards as any other party").

69. S. REP. NO. 105-192, 105th Cong. (1998).

70. Id.

71. Department of Energy v. Ohio. 503 U.S. 607, 22 ELR 20804 (1992).

72. Supra note 12, at 11.

73. See, e.g., Hearings Before the Subcomm. on Trade and Hazardous Materials of the House Comm. on Commerce, 104th Cong. 740 (1995) (testimony of Attorney General of Colorado Gail Norton).

74. See Fields letter, supra note 68. See also S. REP. No. 102-67, 102d Cong. (1991).

75. Thomas Grumbly, Letter, N.Y. TIMES, Dec. 23, 1994 (on file with author).

76. Id.