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18 ELR 21023 | Environmental Law Reporter | copyright © 1988 | All rights reserved California v. United States Department of Defense No. CIV S-86-190 EJG (E.D. Cal. May 2, 1988)The court rules that the federal government has not waived its sovereign immunity under Resource Conservation and Recovery Act (RCRA) § 6001 to actions brought by states for civil penalties. Waivers of sovereign immunity must be clear and unambiguous. Civil penalties are not clearly included in RCRA § 6001's waiver of sovereign immunity for "procedural requirements," particularly because Congress considered and rejected legislation that would have included civil penalties in the waiver. The court also holds that there is no implied consent to the imposition of civil penalties. Counsel for Plaintiff Counsel for Defendants Joseph F. Smith Jr. Garcia, J.: Memorandum Opinion The question before the Court is whether the United States has waived its sovereign immunity under the federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq., with respect to civil penalties sought to be imposed by a state. This Court agrees with the United States' analysis of the issue and holds, as did its colleague in McClellan Ecological Seepage Situation v. Weinberger, 655 F. Supp. 601 [17 ELR 20344] (E.D. Cal. 1986), that in enacting RCRA Congress did not clearly and unequivocally waive the United States' sovereign immunity as to civil penalties. This Court also refuses to find that such a consent to be sued exists by implication. Plaintiff cites a recent proposed decision by a magistrate of the federal District Court for Maine, which gives a broad reading to Section 6961 of RCRA, and recommends finding a waiver of sovereign immunity in a similar case. State of Maine v. Department of the Navy, Civ. No. 86-0211 P (D.C. Me. Nov. 16, 1987) (proposed decision). Plaintiff also asserts that a recent decision from the federal District Court for the Southern District of Ohio correctly concluded that Congress waived the United States' sovereign immunity as to civil penalties in RCRA. State of Ohio v. United States Department of Energy, C-1-86-0217 [18 ELR 20586] (S.D. Ohio, W. Div. March 18, 1988). The magistrate's recommended Maine decision is in direct conflict with the McClellan decision in this District, and specifically takes issue with the Ninth Circuit decision in California v. Walters, 751 F.2d 977 [15 ELR 20291] (9th Cir. 1984), which held that there was no waiver of sovereigin immunity in RCRA for criminal penalties. The Ohio decision also directly conflicts with McClellan, and is inconsistent with Walters. Additionally, both the recommended Maine decision and the Ohio opinion violate the undisputed law governing waiver of sovereign immunity. Thus, this Court chooses not to follow either the Maine magistrate's recommended decision, nor the Ohio District Court decision. It is well established that waivers of sovereign immunity must be clear and unambiguous; they cannot be implied and must be strictly construed in favor of the United States. Ruckelshaus v. Sierra Club, 463 U.S. 680 [13 ELR 20664] (1983); Block v. North Dakota ex rel. Board of University & School Lands, 461 U.S. 273 (1983); Hancock v. Train, 426 U.S. 167 [6 ELR 20555] (1976); McClellan Ecological Seepage Situation v. Weinberger, supra. Speculation, interpretation, and inferences are insufficient. If they are necessary, there is no clear waiver. If there is no clear waiver, there is no waiver at all. Nevertheless, the Ohio opinion inferred that Congress -- being acutely aware of Hancock, wherein the Supreme Court declined to imply a waiver of sovereign immunity in the absence of a clear and express waiver -- intended to subject federal facilities to civil penalties by use of the phrase "procedural requirements" in Section 6961 of RCRA. Ohio v. DOE, slip op. at 9-11. Not only is this a speculative inference, it ignores the fact that Congress considered and rejected the provision of the House bill that would have clearly and unequivocally subjected federal facilities to civil penalties for violations of RCRA, and instead chose to adopt a bill that made no mention of waiving sovereign immunity for civil penalties. The District Court for the Eastern District of North Carolina specifically referenced this legislative history in finding there was no waiver of sovereign immunity as to penalties under RCRA in a similar case. Meyer v. United States Coast Guard, 644 F. Supp. 221 at 223 [17 ELR 20128] (E.D.N.C. 1986), citing 122 Cong. Rec. 32,613 (Sept. 27, 1976). Furthermore, the Ohio opinion is inconsistent with the Ninth Circuit decision in Walters, in that the Ohio opinion also ignored the clear distinction made between actual requirements, and penalties [18 ELR 21024] to enforce those requirements, in the House bill. This distinction reflects an understanding by Congress of the difference between these two concepts. See H.R. 14496, 94th Cong., 2d Sess. (1976); see also 42 U.S.C. § 6928(a). The Ninth Circuit clearly elucidated this difference in Walters, supra. There the Court held that criminal sanctions were not "requirements" of state law but were rather the means by which "requirements" are enforced. Walters, supra, at 978. Plaintiff also takes issue with the Ninth Circuit Walters case, asserting that the Ninth Circuit has misread Section 6961 of RCRA. Such arguments should properly be addressed to that Court. Nevertheless, plaintiff advances no cogent reason why the Ninth Circuit's decision on criminal penalties in the Walters case should not also apply to civil penalties, or why civil penalties should be treated differently. Since Walters, supra, is applicable by analogy and through its reasoning, this Court chooses to follow Walters. Accordingly, this Court concludes that there is no express, clear, or unequivocal waiver of the United States' sovereign immunity as to civil penalties in RCRA. Not only is there no express waiver of sovereign immunity in the Federal Resource Conservation and Recovery Act, its legislative history indicates that no such waiver was intended. This Court also refuses to find consent to any imposition of civil penalties by implication. Therefore, the United States' Motion for Summary Judgment is GRANTED, and this action is dismissed. IT IS SO ORDERED. The Clerk is directed to forward copies of this memorandum opinion to counsel. 18 ELR 21023 | Environmental Law Reporter | copyright © 1988 | All rights reserved |