18 ELR 20363 -- United States v. Washington

United States v. Washington

No. C-87-291-AAM (E.D. Wash. January 22, 1988)

The court rules that the United States has not waived its sovereign immunity under the Resource Conservation and Recovery Act (RCRA) for civil penalties imposed in state administrative proceedings. Before a claim for penalties can be assessed against the United States, it must clearly consent to be sued, and waivers affecting the public fisc are to be especially narrowly construed. While RCRA § 6001 clearly waives sovereign immunity for sanctions imposed by a court to enforce its injunctive relief, it does not on its face waive immunity from sanctions imposed by an administrative agency. Administrative penalties are not "procedural requirements" under § 6001; rather, they are one means by which requirements are enforced. Congress' explicit waiver of sovereign immunity from judicial penalties only makes clearer its intent not to waive immunity from administrative penalties. Policy arguments as to why federal facilities ought to be subject to administrative civil penalties are for Congress to balance, and the court observes that Congress could be reluctant to waive sovereign immunity from state administrative penalties to prevent intergovernmental squabbling and to avoid reallocation of funds Congress has appropriated to particular federal agencies.

[Sovereign immunity in environmental law is analyzed at 15 ELR 10326 and 17 ELR 10114.]

Counsel for Plaintiff
Thomas Rice, Ass't U.S. Attorney
Box 1494, 851 U.S. Courthouse, W. 920 Riverside Ave., Spokane WA 99210
(509) 456-3811

Stephen L. Samuels
Land and Natural Resources Division
Department of Justice
L'Enfant Plaza Station, P.O. Box 23986, Washington DC 20026-3986
(202) 633-2000

Counsel for Defendants
Kathleen D. Mix, Ass't Attorney General
Office of the Attorney General
Ecology Division, MS: PV-11, Olympia WA 98504
(206) 753-2550

[18 ELR 20363]

McDonald, J.:

Memorandum Opinion

The issue before this Court on cross-motions for summary judgment is well-defined: Whether the United States has waived its sovereign immunity under the Resource Conservation and Recovery Act ("RCRA") with respect to civil penalties imposed in state administrative proceedings. Based upon a thorough review of the relevant statutory provisions and legislative history as well as the arguments made by the parties in their briefs and at a hearing on October 20, 1987, this Court concludes that the United States has not waived its sovereign immunity. Accordingly, the Court grants the United States' motion for summary judgment and denies the State of Washington's motion.

The United States filed this action for declaratory judgment on May 4, 1987, after it was unable to reconcile its differences with the Department of Ecology of the State of Washington over the imposition of state civil penalties in the amount of $49,000 with respect to certain alleged violations of state hazardous waste laws.^[1] Those alleged violations were committed by the United States Department of Energy at the Hanford Nuclear Reservation in Benton County, Richland, Washington. The State seeks administrative penalties pursuant to Wash. Rev. Code Ann. § 70.105.080 (Supp. 1987).

Of course, before a claim for penalties can be maintained against the United States, the sovereign must consent to be sued. United States v. Sherwood, 312 U.S. 584, 586-87 (1941). Such consent cannot be implied but must be clearly expressed. United States v. Mitchell, 445 U.S. 535, 538 (1980). Waivers affecting the public fisc are to be especially narrowly construed. See Lehman v. Nakshian, 453 U.S. 156, 161 & n.8 (1981); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947). "[S]tatutes placing the United States in the same position as a private party . . . have been read narrowly to preserve certain immunities that the United States has enjoyed historically." Library of Congress v. Shaw, 106 S. Ct. 2957, 2964 (1986). Moreover, there is a specific presumption against waivers of the federal government's immunity with respect to state fines or penalties, even where the government is generally subject by statute to state law. See Missouri Pac. R.R. v. Ault, 256 U.S. 554, 563-65 (1921).

The State of Washington contends here that section 6001 of RCRA, 42 U.S.C. § 6961, clearly and unambiguously waives the United States' sovereign immunity with respect to state administrative penalties. Section 6001 subjects federal facilities to:

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 [18 ELR 20364] such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges.

(Emphasis added.)

The State argues that the emphasized portion of the parenthetical in § 6001 must mean that Congress intended to waive sovereign immunity not only for sanctions to enforce injunctive relief but also for state administrative penalties. The language in the parenthetical clearly does waive the Government's immunity with respect to sanctions imposed by a court to enforce injunctive relief which that court has ordered. Here, however, it is a state rather than a court that seeks to assess state administrative penalties rather than judicial sanctions in the context of an administrative order rather than a violation of a judicially imposed injunction. Section 6001 on its face certainly does not waive immunity in the manner sought by the State of Washington.

The State also asserts that state administrative penalties constitute "procedural requirements" for which immunity has been waived under RCRA § 6001. This position was soundly rejected by the Ninth Circuit Court of Appeals in California v. Walters, 751 F.2d 977 [15 ELR 20291] (9th Cir. 1985). In that case, the court held that criminal sanctions are not "requirements" of state law "but rather the means by which . . . standards, permits, and reporting duties are enforced." Id. at 978. The same is true here. Administrative penalties are not "requirements" but rather a means by which "requirements" are enforced.

The Ninth Circuit did state in Walters that RCRA § 6001 plainly waives immunity to sanctions imposed to enforce injunctive relief -- not, as the State asserts, on the grounds that such sanctions are "requirements," but rather because the waiver is explicit. The court concluded, however, that "this only makes more conspicuous its failure to waive immunity to criminal sanctions." 751 F.2d at 978. Here, too, Congress' explicit waiver of sovereign immunity for sanctions to enforce injunctive relief makes it even clearer that Congress did not intend to waive immunity for state administrative penalties.^[2]

This Court is also influenced by two district court decisions, one in this circuit, interpreting the scope of the waiver in section 6001. In McClellan Ecological Seepage Situation (MESS) v. Weinberger, 655 F. Supp. 601 [17 ELR 20344] (E.D. Cal. 1986), the court rejected a claim that section 6001 waives sovereign immunity for civil penalties. That court held:

The plain face, common-sense reading of this provision convinces this Court that there has not been a waiver of sovereign immunity regarding the imposition of civil penalties against federal facilities under RCRA.

Id. at 603.

And in Meyer v. United States Coast Guard, 644 F. Supp. 221 [17 ELR 20128] (E.D.N.C. 1986), the district court held:

The language of section 6001 does not clearly and unambiguously state that the federal government will be subject to fines and other penalties by states.

Id. at 222.^[3]

This Court finds the reasoning of the courts in Walters, MESS, and Meyer persuasive and concludes that the waiver in section 6001 was not intended to reach either civil penalties or state administrative penalties.

The State argues, nevertheless, that federal facilities should be subject to state fines as a matter of public policy. The State contends that without the ability to impose fines on federal facilities, it is left with only two means of enforcing compliance -- a lawsuit seeking injunctive relief or the revocation of a federal facility's hazardous waste permit. The State asserts that it would be more practical and sensible to permit state agencies to address routine violations with fines.

Whether or not the State's position reflects sound policy is clearly a matter for Congress to decide. Presumably, Congress is well aware of the United States' position with respect to its immunity from penalties under RCRA as well as the decisions narrowly interpreting section 6001. Yet, Congress has obviously not seen fit to make any adjustments to that section.

This Court has little trouble understanding Congress' reluctance to amend section 6001. Congress might very well not want the Federal government involved in the type of intergovernmental squabbling that would undoubtedly result from federal facilities being subjected to state administrative fines. Further, Congress might be concerned about possible raids on the Federal Treasury or at least the reallocation of appropriated funds. In any case, these are obviously policy determinations for the legislative branch of the government to make, not the judicial branch.^[4]

For these reasons, this Court concludes that federal facilities are not subject to state fines under section 6001 of the Resource Conservation and Recovery Act. Accordingly, the United States' motion for summary judgment is GRANTED and the State of Washington's motion for summary judgment is DENIED.

IT IS SO ORDERED. The clerk is directed to forward copies of this memorandum opinion to counsel.

1. The United States and the State of Washington were able to resolve all their other differences and entered into a consent agreement and compliance order on October 1, 1986. The State's substantive allegations regarding violations are irrelevant to the purely legal question presently before this Court.

2. This Court disagrees with the State's assertion that "no real difference exists" between sanctions to enforce judicial injunctions and penalties imposed in the context of state administrative proceedings. (State's Br. at 17.) Judicial sanctions assure effective judicial authority, regardless of the particulars of the underlying environmental dispute, and thus reflect an explicit congressional intent that the United States obey judicial orders. Administrative penalties are designed to punish the substantive environmental violation. That there may be "proceedings" affording due process before the administrative penalty is assessed, similar to judicial "proceedings," does not alter the fundamental difference between judicial sanctions and administrative penalties.

3. The court in Meyer also examined the legislative history of RCRA and noted that "Congress rejected a House of Representatives bill which specifically authorized the granting of civil penalties and instead chose to adopt the Senate bill which made no mention of waiving sovereign immunities for civil penalties." 644 F. Supp. at 223. See 122 Cong. Rec. 32,613 (Sept. 27, 1986).

4. The State cites the conference report for the recently enacted Superfund Amendments and Reauthorization Act of 1986 for the proposition that Congress intended section 6001 of RCRA to waive immunity for state fines and penalties. (State's Br. at 25.) The Court agrees with the United States that: (i) the subsequent legislative history of a different statute sheds little light on the intent of an earlier Congress, Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 117 (1980); (ii) the language in the conference report is itself ambiguous; and (iii) the State's interpretation of the language in the conference report conflicts with the actual language of section 6001, the contemporaneous legislative history of section 6001, and the case law interpreting section 6001. Of course, if Congress had actually intended to broaden the scope of the waiver in section 6001, it could have done so directly.