Ohio ex rel. Celebrezze v. United States Department of the Air Force

No. C-2-86-0175 (S.D. Ohio March 31, 1987)

The court holds that Clean Air Act § 118 waives federal agencies' sovereign immunity from civil penalties for violations of Ohio air pollution regulations, and Ohio has properly stated a claim upon which relief can be granted. Clean Air Act § 118 makes federal agencies subject to state requirements, process, and sanctions for the control and abatement of air pollution to the same extent as any private entity. The court rules that § 118's use of the term "sanctions" is not limited to civil penalties imposed by a court for violation of a court order, but rather also includes penalties imposed by a court for regulatory violations. Reviewing the legislative history, the court contrasts § 118 as passed by the House of Representatives, in which the committee report notes that "civil and criminal penalties" are available in addition to contempt citations to enforce injunctive relief, with § 118 as passed by the Senate, where the committee report speaks only of sanctions to enforce injunctive relief. The House bill was passed in lieu of the Senate bill, and the conference report indicates that the Senate concurred with the House provision on this point. The court compares the broader language of Clean Air Act § 118 with narrower language in the Resource Conservation and Recovery Act. Congress also later enacted comparable amendments to the Safe Drinking Water Act and the Federal Water Pollution Control Act; the statutes differ on this point and Congress was aware of the distinctions. Moreover, "sanctions" is not a term of art to be narrowly construed, and Congress can be presumed to understand its commonly understood broad meaning.

Finally, the court holds that the complaint adequately states a cause of action upon which relief can be granted, and that challenges tofactual assertions must be resolved by the factfinder after evidence is presented.

[Briefs related to this case are digested at ELR PEND. LIT. 65932.]

Counsel for Plaintiff
Jack Van Kley, Ass't Attorney General
Environmental Enforcement Section
30 E. Broad St., Columbus OH 43215
(614) 466-3376

Counsel for Defendant
James E. Ratten, Ass't U.S. Attorney
Room 200, 85 Marconi Blvd., Columbus OH 43215
(614) 469-5715

[17 ELR 21211]

Holschuh, J.:

Memorandum and Order

Plaintiff initiated this action in state court for injunctive relief and civil penalties charging defendants with violations of state air pollution laws at two United States Air Force facilities located in Franklin County, Ohio. Defendants in this case are the United States Department of the Air Force; Verne Orr, Secretary of the Air Force (federal defendants); and Rockwell International Corporation. The federal defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446 basing jurisdiction on 28 U.S.C. § 1346. This matter is presently before the Court on the federal defendants' motion to dismiss or for summary judgment pursuant to Fed. R. Civ. P. 12(b) and 56 for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

I. Statement of Facts

This suit is directed at two federal facilities: Rickenbacker Air National Guard Base (Rickenbacker) and Air Force Plant 85 (Plant 85). Plaintiff alleges that defendants have operated six boilers at Rickenbacker and four boilers at Plant 85 without first obtaining a permit and have permitted these boilers to expel particulate emissions in the atmosphere in excess of state standards, all in violation of Ohio Rev. Code § 3704.05. Plaintiff claims that the Rickenbacker violations have been occurring since December 19, 1980 and the Plant 85 violations since May 1982. Plaintiff further alleges that on September 29 and 30, 1983, and other unknown dates, defendants have permitted emissions of a shade or density greater than twenty percent (20%) opacity to be discharged into the ambient air from the stack of one or more of the four boilers at Plant 85.

Plaintiff has requested an injunction prohibiting defendants from operating the boilers without a permit or from violating Ohio Adm. Code §§ 3745-17-07(A) and 3745-17-10(a)(1) as well as civil penalties.

II. Legal Analysis

The federal defendants have raised two arguments in support of their motion, although they recognize that "the real question to be addressed in this case is whether the United States has clearly waived its sovereign immunity so as to permit Ohio or any other state to impose fines or penalties upon federal facilities." Accordingly, they first argue that the Clean Air Act (CAA) does not provide for fines or penalties against departments of the federal government; rather, it is argued, the Act only provides for sanctions to enforce injunctive relief. Second, they argue that injunctive relief is not available in this case because plaintiff has failed to make a showing of wrongdoing on the part of defendants or a special demonstration of need.

A. Civil Penalties

The CAA is a comprehensive statutory scheme designed to control air pollution. It requires the United States Environmental Protection Agency (EPA) to promulgate national ambient air quality standards (NAAQS). It then places primary responsibility with each state to ensure that its air meets the NAAQS. Each state is to submit a state implementation plan (SIP) for approval by the EPA if the SIP meets the CAA's standards. See Dressman v. Costle, 759 F.2d 548, 551 [15 ELR 20434] (6th Cir. 1985).

In the present case, the parties agree that Rickenbacker and Plant 85 are required to meet Ohio SIP air quality standards pursuant to 42 U.S.C. § 7418. The federal defendants argue, however, that section 7418 does not permit the State of Ohio to levy fines against departments of the federal government operating federal facilities. Their argument is based upon a comparison of the language found in other environmental statutes and the meaning of the term "sanction."

The federal compliance provision of the CAA, 42 U.S.C. § 7418 provides, in part:

Each department . . . of the Federal Government . . . shall be subject to, and comply with all Federal, State, interstate and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity. The preceding sentence shall apply . . . (c) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, . . . under any law or rule of law. No officer . . . of the United States shall be personally liable for any civil penalty for which he is not otherwise liable.

Section 7418 was amended in 1977 in response to the Supreme Court decision of Hancock v. Train, 426 U.S. 167 [6 ELR 20555] (1976). In Hancock, the issue before the Court was "whether a State whose federally approved implementation plan forbids an air contaminant source to operate without a state permit may require existing federally owned or operated installations to secure a permit." Id. at 168. Based upon fundamental principles which shield federal installations from state regulation, the Court stated that authorization is found only when there is a "clear congressional mandate" making state regulation "clear and unambiguous." Id. at 179. Although not happy with its decision, id. at 198, the Court found such clear intent lacking, and held that although Congress intended for federal facilities to meet emission standards and compliance schedules, it did not intend for the state to have the power to force federal compliance. Id. at 185-86.¹

One of the purposes of the 1977 CAA amendments was "to provide more effective surveillance and enforcement tools for states and the administrator to bring existing stationary and mobile sources into compliance and to assure that they remain in compliance." H.R. Rep. No. 294, 95th Cong., 1st Sess. , reprinted in 1977 U.S. Code Cong. & Admin. News 1079. The House Report further provided:

In the committee's view, the language of existing law should have been sufficient to insure Federal compliance in all of the aforementioned situations. Unfortunately, however, the U.S. Supreme Court construed section 118 narrowly in Hancock v. Train, No. 74-220 (June 7, 1976).

. . .

The new section 113 [42 U.S.C. § 7418] of the bill is intended to overturn the Hancock case and to express with sufficient clarity, the committee's desire to subject Federal facilities to all Federal, State, and local requirements — procedural, substantive, or otherwise — process and sanctions.

Id. at 1278.

The federal defendants argue that section 7418 should be read to limit the term "sanctions" to civil penalties imposed by a court for violation of a court order. They direct the Court's attention to the language of several other environmental statutes which were also revised in response to the decision in Hancock. A comparison of these statutes and their legislative history, however, convinces this Court that Congress, by its enactment of the federal compliance provision of the CAA, 42 U.S.C. § 7418, intended federal facilities to be subject to the type of civil penalties being requested by plaintiff in the present case.

The three Acts mentioned by the federal defendants are the Resource Conservation and Recovery Act of 1976, 90 Stat. 2821 (Oct. 21, 1976), the Safe Drinking Water Act, 91 Stat. 1393 (Nov. 16, 1977), and the Clean Water Act, 91 Stat. 1566 (Dec. 27, 1977).

1. Resource Conservation and Recovery Act (RCRA)

The federal compliance provision of the RCRA, 42 U.S.C. § 6961, in part:

Each department . . . shall be subject to, and comply with, all Federal, State, interstate and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief. . . . Neither the United States, nor any agent, employee or officer thereof, shall be immune or exempt from any process or sanction of any State of Federal Court with respect to the enforcement of any such injunctive relief.

[17 ELR 21212]

This Act was under consideration by Congress at the time Hancock was decided. By its very language it defines sanctions as those that may be imposed by a court to enforce injunctive relief.

The Ninth Circuit interpreted this section as precluding the imposition of criminal penalties in People of State of California v. Walters, 751 F.2d 977 [15 ELR 20291] (9th Cir. 1984) (per curiam). That case involved a criminal prosecution against the Veterans Administration for disposing hazardous medical waste in violation of state law. The city attorney argued that section 6961 encompassed criminal sanctions based upon the language "all . . . State . . . requirements, both substantive and procedural," as well as the Hancock decision. Id. at 978. The Ninth Circuit held that "criminal sanctions" did not equal "requirements," and this was made even more clear by the fact that the statute waived immunity to sanctions imposed to enforce injunctive relief. Id. It further found that the legislative history did not evidence a clear intent to waive the immunity to criminal sanctions. Id. at 978.

This was also the position of the District Court for the Eastern Division of North Carolina in Meyer v. United States Coast Guard, 644 F. Supp. 221 (E.D.N.C. 1986). In Meyer, the state assessed a $10,000 penalty against the defendant for failure to file a timely permit application. Looking at the language of the statute and its legislative history, the Court found that the only penalties Congress intended to impose upon federal facilities were those arising from injunctions. Id. at 222-23. See also State of Florida Department of Environmental Engineering v. Silvex Corp., 606 F. Supp. 159 [15 ELR 20312] (M.D. Fla. 1985).

2. Safe Drinking Water Act (SDWA)

The federal compliance provision of the SDWA, 42 U.S.C. § 300j-6(a) provides in part:

Each federal agency . . . shall be subject to, and comply with all Federal, State, and local requirements, administrative authorities, and process and sanctions . . . in the same manner, and to the same extent, as any nongovernmental entity. The preceding sentence shall apply . . . (c) to any process or sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply, notwithstanding any immunity of such agencies, under any law or rule of law. No officer, agent, or employee of the United States shall be personally liable for any civil penalty under this subchapter with respect to any act or omission within the scope of his official duties.

This section was amended to avoid the pitfalls encountered by the CAA in regard to the Hancock decision. H.R. Rep. No. 335, 95th Cong., 1st Sess. , reprinted in 1977 U.S. Code Cong. & Admin. News 3648, 3660. The House Report further provided:

[T]he committee makes manifest its intention that federally owned or operated facilities comply with all Federal, State, and local requirements, of a substantive and procedural nature. By subjecting Federal facilities to State and local safe drinking water requirements, the committee explicitly waives the applicability of the doctrine of sovereign immunity to those sources.

Id. There have been no cases interpreting this section since it was amended in 1977.

3. Clean Water Act (CWA)

The federal compliance provision of the CWA, 33 U.S.C. § 1323, provides, in part:

Each department . . . shall be subject to, and comply with all Federal, State, and local requirements, administrative authorities, and process and sanctions . . . in the same manner and to the same extent as any nongovernmental entity . . . . The preceding sentence shall apply . . . (c) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies . . . under any law or rule of law . . . . No officer . . . of the United States shall be personally liable for any civil penalty arising from the performance of his official duties, for which he is not otherwise liable, and the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court.

The original Senate version of this section contained identical language to that presently found in section 6961 of the RCRA. S. Rep. No. 370, 95th Cong., 1st Sess. 184 (1977). The Senate Report states that its purpose was to subject Federal facilities to substantive and procedural requirements, including "any provisions for injunctive relief and such sanctions imposed by a court to enforce such relief . . . ." Id. at 67. The House did not submit an amendment to the provision, and the Conference Committee essentially adopted the Senate amendment "revised to conform with a comparable provision in the Clean Air Act . . . ." H. Conf. R. No. 830, 95th Cong., 1st Sess. , reprinted in 1977 U.S. Code Cong. & Admin. News 4424, 4468.

There are no cases specifically dealing with the issue of whether civil or criminal penalties are available under this section.² However, as in the case of the RCRA, this section contains additional limiting language, not found in the CAA or SDWA, which provides that the United States may only be held liable for civil penalties imposed by a court to enforce a court order.

4. CAA

The Court has earlier set forth the federal compliance provision of the CAA, 42 U.S.C. § 7418. The legislative history of that Act, as well as the language in the federal compliance provision, are comparable to the SDWA. However, the legislative history of the CAA more clearly reflects a clear distinction between the House and the Senate as to the sanctions permitted by the amendment.

The House Report stated:

The amendment is also intended to resolve any question about the sanctions to which noncomplying Federal agencies . . . may be subject. The applicable sanctions are to be the same for Federal facilities and personnel as for privately owned pollution sources and for the owners or operators thereof. This means that Federal facilities and agencies may be subject to injunctive relief (and criminal or civil contempt citations to enforce any such injunctions), to civil or criminal penalties, and to delayed compliance penalties.

. . .

The committee thus expects that section 118, as amended, will end any further delays, excuses, or evasions by Federal agencies and will mandate complete compliance, except as express Presidential exemption may otherwise permit in the interests of national security.

H.R. Rep. No. 294, 95th Cong., 1st Sess. , reprinted in 1977 U.S. Code Cong. & Adm. News 1077, 1279.

In contrast, the Senate version of this amendment utilized the identical language found in the RCRA. S. Rep. No. 127, 95th Cong., 1st Sess. 178-79 (1977). In discussing the amendment, the Senate Committee stated that the purpose of the provision would be to require federal facilities to comply with both substantive and procedural requirements, to include "any provisions for injunctive relief and such sanctions imposed by a court to enforce such relief . . . ." Id. at 58.

The House Bill was passed in lieu of the Senate Bill. See U.S. Code Cong. & Admin. News 1077, 1077 [sic]. The Conference Report summarized the varying provisions as follows:

House bill

Clarifies the intent of the 1970 Clean Air Act that Federal [17 ELR 21213] facilities must comply with all substantive and procedural air pollution requirements of Federal, State, interstate, or local law to the same extent as any person subject to such requirements. Any Federal employee, officer or agency may be held liable personally for civil penalties as well as in his official capacity for a violation of this provision.

Senate amendment

Clarifies the intent of section 118 of existing law that all Federal facilities must comply with all substantive and procedural requirements of applicable State implementation plans. Certain procedural requirements with which Federal facilities must comply are specified: construction and operating permits, reporting and monitoring; injunctive relief and sanction provisions and the payment of reasonable service charges. Personal liability is not extended to Federal employees, officers or agents.

It then stated:

Conference agreement

The Senate concurs in the House provision with the amendments (1) to assure that Federal employees . . . are not made personally liable for civil penalties to which such person is not otherwise liable . . . . The conferees intend, by adopting the House amendment, to require compliance with all procedural and substantive requirements, to authorize States to sue Federal facilities in State courts, and to subject such facilities to State sanctions.

Id. at 1518.

Only one court has specifically dealt with the issue of penalties in regard to this act. In State of Alabama ex rel. Graddick v. Veterans Administration, No. 86-H-465-E (M.D. Ala. Nov. 7, 1986) (LEXIS, Genfed Library, Courts file), the Court, after considering the legislative history of the federal compliance provision of the CAA, held that the state could enforce state regulations providing for civil penalties with respect to a federal facility.

5. Analysis

It is a well-established principle of statutory construction that words of a statute are to be placed in their proper context by resort to legislative history where they are not conclusive as to congressional intent. Tidewater Oil Co. v. United States, 409 U.S. 151, 158 (1972). In deciding whether the United States has waived its sovereign immunity as to the type of civil penalties being requested by plaintiff in this case, congressional intent to do so must be express, clear and unambiguous. Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 280 (1983); Hancock, 426 U.S. at 179. The government's consent, when given, is to be strictly construed and not modified by implication. United States v. King, 395 U.S. 1, 4 (1969). Although ambiguous legislative history should not be allowed to control the ordinary meaning of statutory language, National Labor Relations Board v. Plasterers' Local No. 79, 404 U.S. 116, 129 n. 4 (1971), the express language of the House, whose Bill was passed in lieu of the Senate's, as well as the enactment and amendment of other environmental statutes, convinces this Court that Congress intended to waive sovereign immunity as to the type of civil penalties being requested by plaintiff in the present case.

The RCRA, which was still under consideration by Congress when Hancock was decided, uses specific language to limit sanctions to those that may be imposed by a court to enforce injunctive relief. The CAA amendments were next enacted, and it is significant that the House amendment which did not limit sanctions to those necessary to enforce injunctive relief was chosen over the Senate amendment which contained such a limitation. The language limiting sanctions is conspicuously absent, 42 U.S.C. § 7418, and the House Report clearly envisioned sanctions to include civil or criminal penalties and delayed compliance penalties. H.R. Rep. No. 294, 95th Cong., 1st Sess. , reprinted in 1977 U.S. Code Cong. & Admin. News 1077, 1279. The Safe Drinking Water amendments followed shortly thereafter, and Congress again tracked the language found in the CAA. 42 U.S.C. § 300j-6(a). As with the CAA, the House interpreted this language to mean that by "subjecting Federal facilities to State and local safe drinking water requirements, the committee explicitly waives the applicability of the doctrine of sovereign immunity to those sources." H.R. Rep. No. 335, 95th Cong., 1st Sess. , reprinted in 1977 U.S. Code Cong. & Admin. News 3648, 3660. Finally, the CWA amendments were enacted. The Senate amendment was passed, but the Conference Committee revised the language to make it comparable to the language used in the CAA. In keeping with the intent of the Senate amendment, however, additional language — which is not found in the CAA — was added, i.e., "and the United States shall be liable only for those civil penalties . . . imposed by a . . . court to enforce an order . . . of such court." 33 U.S.C. § 1323.

The Court believes Congress knew what it was doing when it specifically included language to limit the term "sanctions" in the RCRA and CWA, but did not include this limiting language when it enacted the CAA and SDWA. The legislative history reflects divergent views between the House and the Senate as to the type of sanctions to be imposed. The legislative history of the CAA evidences a clear intent on the part of the House to subject federal facilities to civil penalties and noncompliance penalties. Compare Meyer, 644 F. Supp. at 223. The Conference Committee Report does not detract from this position but limits it so that federal officers cannot be held personally liable for acts performed in their official capacity.

The Court finds unpersuasive the federal defendants' argument that "sanctions" is a term of art and must be construed as referring only to penalties imposed to enforce injunctive relief ordered by a court. The commonly accepted usage of the word "sanctions" includes penalties or fines without limitation to use in connection with court ordered injunctive relief. Black's Law Dictionary defines "sanction" as ". . . that part of a law which is imposed to secure enforcement by imposing a penalty for its violation. . . ." Black's Law Dictionary 1203 (Rev. 5th Ed. 1979). Ballentine's Law Dictionary further states that a sanction is ". . . (3) the imposition of any form of penalty or fine; . . ." Ballentine's Law Dictionary 1137 (3d Ed. 1969). Not only is Congress presumed to be aware of this commonly understood meaning of sanctions, but the legislative history of the various acts discussed earlier shows that Congress was not only aware of its meaning, but was careful to limit its applicability in certain statutes (RCRA and CWA), and equally careful to not provide the same limitation in other statutes (CAA and SDWA).

Furthermore, Federal defendants' argument that the word "sanction" means court-imposed sanctions not only conflicts with the Conference Committee statement that federal facilities would be subject to "state sanctions," rather than court imposed sanctions, but also disregards the definition of sanction as used by the House.

[S]anctions . . . means that Federal facilities and agencies may be subject to injunctive relief (and criminal or civil contempt citations to enforce any such injunctions), to civil or criminal penalties, and to delayed compliance penalties.

H.R. Rep. No. 294, 95th Cong., 1st Sess. , reprinted in 1977 U.S. Code Cong. & Adm. News 1077, 1279 (emphasis added).

The present complaint states that defendants' actions have violated specific objective requirements as set forth in Ohio Admin. Code Chapter 3745-17 and sets forth the specific provision which has been violated in each court. The federal defendants have agreed that they are subject to these requirements. Ohio Rev. Code § 3704.05 provides

no person shall cause, permit, or allow emission of an air contaminant in violation of any regulation adopted by the director of environmental protection under division (E) of section 3704.03 of the Revised Code, unless the person is the holder of a variance . . . permitting the emission of the contaminant in excess of that permitted by regulation.

Ohio Rev. Code § 3704.06 provides that a court of competent jurisdiction

shall have jurisdiction to grant prohibitory and mandatory injunctive relief and to require payment of a civil penalty upon the showing that such person has violated Chapter 3704, of the Revised Code or regulations adopted thereunder.

The request for penalties in this case is directly related to a failure to meet objective state requirements, i.e., obtaining permits and meeting required emission levels in the absence of a variance. As such, they fall under the rubric of the type of sanctions envisioned by Congress when the CAA was enacted.

The Court further notes that the District Court for the Middle District of Alabama has also held that federal facilities are subject to state regulations providing for civil penalties.

Given the complex and interrelated nature of state and federal regulations governing air pollution and the concurrent authority to enforce said regulations shared by both the state [17 ELR 21214] and federal agencies, ADEM [Alabama Department of Environmental Management] cannot be said to be attempting to enforce state regulations without also being found to be enforcing federal regulations. Additionally, Congress has expressly granted the states the power to enforce state sanctions against federal facilities [relying upon H.R. Rep. No. 294].

State of Alabama, ex rel. Graddick v. Veterans Administration, No. 86-H-465-E (M.D. Ala. Nov. 7, 1986) (LEXIS, Genfed Library, Courts file).

The Court therefore finds the federal defendants' first argument not well-taken.

B. Failure to State a Claim

Defendant's second argument is that the complaint fails to state a claim upon which relief may be granted because it fails to allege that the federal facilities are out of compliance with state standards, or are not satisfactorily proceeding through the permit process, or are otherwise causing injury in need of injunctive relief. The Court disagrees.

The complaint alleges that defendants are operating boilers without a permit and that on numerous occasions the boilers have exceeded allowable emission rates. When determining the sufficiency of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court applies the principle that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Because the motion is directed solely at the complaint itself, Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983), the Court must focus on whether the claimant is entitled to offer evidence to support the claims, rather than whether the plaintiff will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

In the present case, whether the federal defendants are currently out of compliance, or are satisfactorily proceeding through the permit process, or are otherwise causing injury in need of injunctive relief are all questions of fact which must be resolved by the factfinder after the evidence is presented. The motion to dismiss on this basis is therefore not well-taken. Accord Graddick, supra.

IV. Conclusion

Based upon the foregoing reasons, the federal defendants' motion to dismiss or for summary judgment pursuant to Fed. R. Civ. P. 12(b) and 56 is DENIED.

IT IS SO ORDERED.

1. At approximately the same time, the Supreme Court applied the same analysis to the Federal Water Pollution Control Act Amendments of 1972 in the case of EPA v. California ex el. State Water Resources Control Board, 426 U.S. 200 [6 ELR 20563] (1976).

2. Although the Sixth Circuit has dealt with the CWA, it has one so only in the context of whether the United States was required to obtain a state permit for the reconstruction and operation of a dam and flume on a navigable waterway within the State of Tennessee. United States ex rel. TVA v. Tennessee Water Quality Control Board, 717 F.2d 992, 994 [14 ELR 20598] (6th Cir. 1983), cert. denied, 466 U.S. 937 (1984). The Court agreed with the TVA's argument that the 1977 amendment was enacted "to make it clear that federal agencies are subject to procedural as well as substantive provisions of state water quality control laws," id. at 997, and held that because the pollution complained of did not result from the discharge of pollutants from a point source, a permit was not required. Id. at 999-1000.

The issue of civil penalties was raised tangentially in United States v. Pennsylvania Environmental Hearing Board, 584 F.2d 1273 [8 ELR 20689] (3d Cir. 1978). In that case, the United States filed a complaint in district court to enjoin defendant from collecting a penalty imposed upon a third party. The issue before the Court was whether the third party, who ran an ammunition plant for the government, was an independent contractor or an agency of the government. Id. at 1277. Because the Court found that the third party was an independent contractor, it did not have to reach the issue of imposing penalties directly on the government. The Court did state, however, in a footnote, that [u]nder the amended § 313 . . . the status of . . . a federal entity is clear. It must conform to all 'substantive or procedural' pollution requirements; . . . and its immunity from fines is recognized." Id. at 1278 n.20.