State of Ohio v. U.S. Dept. of Energy

• Decision Date: 10 October 1990
• Docket Number: No. 89-3329,89-3329
• Citation: 904 F.2d 1058
• Parties: , 58 USLW 2742, 20 Envtl. L. Rep. 20,953 STATE OF OHIO, Anthony J. Celebrezze, Jr., Attorney General, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF ENERGY, Defendant-Appellant, John S. Herrington, Secretary of Energy; NLO, Inc.; NL Industries, Inc., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1058

904 F.2d 1058

31 ERC 1448, 58 USLW 2742, 20 Envtl.

L. Rep. 20,953

STATE OF OHIO, Anthony J. Celebrezze, Jr., Attorney General, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF ENERGY, Defendant-Appellant, John S. Herrington, Secretary of Energy; NLO, Inc.; NL

Industries, Inc., Defendants.

No. 89-3329.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 7, 1989.

Decided June 11, 1990.

Rehearing and Rehearing En Banc Denied Oct. 10, 1990.

Jack A. Van Kley (argued), Terrence S. Finn, Timothy J. Kern, Office of the Atty. Gen., Environmental Enforcement Section, Columbus, Ohio, for plaintiffs-appellees.

Roger J. Marzulla, Robert L. Klarquist, J. Steven Rogers, Jacques B. Gelin (argued), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendant-appellant.

Christopher T. Ellison, U.S. Dept. of Justice, Sacramento, Cal., for amicus curiae State of Cal.

Cynthia M. Vagelos, Boulder, Colo., for amicus curiae State of Colo.

Before MARTIN, JONES and GUY, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

This interlocutory appeal requires us to determine whether the United States has waived its sovereign immunity for actions for civil damages under the Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq., and the Clean Water Act, 33 U.S.C. Sec. 1251 et seq. We affirm the district court's decision that sovereign immunity was waived under both statutes.

The United States Department of Energy owns a 1,050 acre uranium processing plant in Fernald, Ohio that is operated under a management contract by private contractors. The Fernald facility processes uranium for the production of nuclear weapons. The Fernald facility does not have a nuclear reactor, but processes performed there generate both radioactive and non-radioactive hazardous wastes.

In March 1986, the State of Ohio filed this action against the Department of Energy, the Secretary of the Department of Energy, and its private contractors, seeking civil penalties and other relief. The State of Ohio alleges that the defendants improperly disposed of hazardous wastes, released radioactive materials into the environment, and polluted surface and ground water. The State of Ohio grounds its claims primarily in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq., the Clean Water Act, 33 U.S.C. Sec. 1251 et seq., the Ohio Solid & Hazardous Waste Control Act, Ohio Rev.Code Sec. 3734, and the Ohio Water Pollution Control Act, Ohio Rev.Code Sec. 6111.

The Department of Energy moved to dismiss the claims for civil penalties as barred by sovereign immunity. The district court denied this motion, holding that sovereign immunity was waived under the Resource Conservation and Recovery Act and the Clean Water Act. The district court certified its decision for immediate appeal because the decision involves a controlling question of law and immediate appeal may advance the ultimate resolution of the litigation. 28 U.S.C. Sec. 1292(b). We exercised our discretion to hear this interlocutory appeal on whether sovereign immunity was waived. Id.

A waiver of sovereign immunity must be clear, express, and unambiguous; it cannot be implied from vague language. Block v. North Dakota, 461 U.S. 273, 280, 103 S.Ct. 1811, 1816, 75 L.Ed.2d 840 (1983); Hancock v. Train, 426 U.S. 167, 187, 96 S.Ct. 2006, 2016, 48 L.Ed.2d 555 (1976) (applied to environmental law). In determining whether a waiver is clear, the controlling factor is the "underlying congressional policy." Franchise Tax Bd. v. U.S. Postal Service, 467 U.S. 512, 521, 104 S.Ct. 2549, 2554, 81 L.Ed.2d 446 (1984). We must avoid the temptation to seek any hint of ambiguity that can be used to twist the statute into denying sovereign immunity. See id. When Congress enacts a clear waiver, that waiver should not be "thwarted by an unduly restrictive interpretation" in the courts. Canadian Aviator v. United States, 324 U.S. 215, 65 S.Ct. 639, 89 L.Ed. 901 (1945).

I. The Clean Water Act

We first address whether Congress waived sovereign immunity in the Clean Water Act, 33 U.S.C. Sec. 1323, for claims brought by the State of Ohio under the Clean Water Act and Ohio Water Pollution law. Section 1323 states:

(a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants and each officer, agent, or employee thereof in the performance of his official duties, 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 water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (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, officers, agents, or employees under any law or rule of law....

No officer, agent, or employee 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....

33 U.S.C. Sec. 1323 (emphasis added). This statutory language should be interpreted according to its ordinary usage. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 n. 20, 96 S.Ct. 1375, 1384 n. 20, 47 L.Ed.2d 668 (1976). The first sentence of section 1323 subjects the Department of Energy to "any requirement," including "sanctions," to the same extent as a private entity under the Act. Subsection C specifically states that sovereign immunity is waived for any sanction. Any reader would interpret this statement to subject the Department of Energy to civil penalties. In addition, the Oxford English Dictionary defines "sanction" as "[t]he specific penalty enacted in order to enforce obedience to the law." The Compact Edition of the Oxford English Dictionary 2633 (1971) (emphasis added). See Hochfelder, 425 U.S., at 199 n. 20, 96 S.Ct. at 1384 n. 20 (a dictionary may show ordinary usage). According to its ordinary usage, the language of the waiver of sovereign immunity in section 1323 clearly includes civil penalties.

Congress's 1977 amendment to the Clean Water Act further evidences its intent to waive federal sovereign immunity to civil penalties. Section 1323 was amended in the aftermath of EPA v. Cal. ex rel. State Water Resources Control Bd., 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), in which the Court interpreted an earlier version of section 1323. That earlier version of section 1323 subjected federal agencies to "Federal, State, interstate, and local requirements ... to the same extent as any person is subject to such requirements." 33 U.S.C. Sec. 1323 (1970). The Court distinguished between substantive and procedural requirements and held that Congress had not waived sovereign immunity for procedural requirements, including all enforcement mechanisms. ¹ The Court held that section 1323 merely subjected federal facilities to the substantive pollution limits in state laws. Following that decision, Congress amended the Clean Water Act, stating that federal facilities were subject to "all" requirements, including "process and sanctions." The amendment clearly subjects federal agencies to civil penalties. The fact that the amendment was provoked by a Supreme Court decision protecting sovereign immunity underscores Congress's determination to waive sovereign immunity for civil penalties.

If Congress's amendment of the Clean Water Act did not waive sovereign immunity for civil penalties, it would be impossible to give meaning to each part of section 1323. The Supreme Court has stated, "It is axiomatic that all parts of an Act 'if at all possible, are to be given effect.' " F.A.A. Administrator v. Robertson, 422 U.S. 255, 261, 95 S.Ct. 2140, 2145, 45 L.Ed.2d 164 (1975), quoting Weinberger v. Hynson, Wescott & Dunning, 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207 (1973) (citations omitted). Section 1323 explicitly limits its waiver of sovereign immunity for civil penalties to those "arising under federal law." This limit would become superfluous if section 1323 were interpreted as not waiving sovereign immunity for civil penalties at all.

In order for the claims brought by the State of Ohio to fall within the waiver of sovereign immunity, those claims must arise under federal law. See 33 U.S.C. Sec. 1323. Claims brought under the Clean Water Act itself, such as the claims under 33 U.S.C. Sec. 1365, clearly arise under federal law.

The claims brought under the Ohio water pollution laws also arise under federal law because of the legislative scheme of the Clean Water Act. See Ohio Rev.Code Sec. 6111.09. The Clean Water Act mandates that the states may create their own water pollution laws, which may qualify to replace the requirements of the Clean Water Act. 33 U.S.C. Sec. 1342(b). Upon implementing a state permit program "in accordance with" 33 U.S.C. Sec. 1342, the state assumes responsibility for pollution permits on behalf of and instead of the Environmental Protection Agency. 33 U.S.C. Sec. 1342(c). The Environmental Protection Agency is charged with promulgating the...