Sierra Club v. Lujan, Civ. A. No. 89-B-76.

• Decision Date: 19 January 1990
• Docket Number: Civ. A. No. 89-B-76.
• Citation: 728 F. Supp. 1513
• Parties: SIERRA CLUB and Colorado Environmental Coalition, Plaintiffs, v. Manuel LUJAN, Secretary of the Interior; the United States Department of the Interior; C. Dale Duvall, Commissioner of Reclamation; and the United States Bureau of Reclamation, Defendants.
• Court: U.S. District Court — District of Colorado

728 F. Supp. 1513

SIERRA CLUB and Colorado Environmental Coalition, Plaintiffs, v. Manuel LUJAN, Secretary of the Interior; the United States Department of the Interior; C. Dale Duvall, Commissioner of Reclamation; and the United States Bureau of Reclamation, Defendants.

Civ. A. No. 89-B-76.

United States District Court, D. Colorado.

January 19, 1990.

Adam Babich, Cornwell & Blakey, Denver, Colo., for plaintiffs.

Margaret Kane Harrington, Environmental Defense Section, U.S. Dept. of Justice, Washington, D.C., William G. Pharo, Asst. U.S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Plaintiffs, Sierra Club and Colorado Environmental Coalition, seek mandatory and declaratory injunctive relief and civil penalties against the United States Department of the Interior (DOI) and the DOI's Bureau of Reclamation (BOR), jointly and severally, pursuant to Clean Water Act (CWA), section 505, 33 U.S.C. § 1365. Plaintiffs allege in their second amended complaint that DOI and BOR (United States or federal defendants) violated and continue to violate a 1975 National Pollutant Discharge Elimination System (National System) permit issued by the United States Environmental Protection Agency (EPA) to the BOR for its Leadville Mine Drainage Tunnel (tunnel). Pursuant to Fed.R.Civ.P. 12(b)(1), federal defendants move to dismiss plaintiffs' claim for civil penalties on the grounds that this Court lacks subject matter jurisdiction to impose civil penalties against the United States. Plaintiffs have moved for partial summary judgment on the issue. The sole question is whether Congress has waived the United States' sovereign immunity and authorized the assessment of civil penalties against federal agencies for violations of the CWA, 33 U.S.C. § 1251 et seq. The issue has been well-briefed by both parties, several States have filed an amicus brief, and oral argument will not assist me in deciding this question. For the following reasons, I deny the federal defendants' motion to dismiss and I grant plaintiffs' motion for partial summary judgment.

The CWA was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The act's purpose is to secure compliance with new standards and to change existing practices, not merely to compensate for injuries caused by existing practices. In order to achieve these goals, CWA § 301(a) makes discharge of any pollutant into navigable waters unlawful unless authorized in accordance with specified sections of the CWA. Id.

One of these specified sections is section 402, which establishes the National System. Pursuant to section 402(a), the EPA Administrator may issue permits authorizing the discharge of pollutants. Upon EPA's approval, CWA § 402(b) allows a state to administer its own permit program. 33 U.S.C. § 1342(b).

Once a National System permit is issued, the permittee's obligation to comply with the regulatory scheme is determined by reference to the terms and conditions of the permit, whether the permit has been issued by the EPA or an EPA approved agency. CWA, § 402(k); 33 U.S.C. § 1342(k).

Plaintiffs allege in their complaint that the DOI and BOR own and operate a tunnel in Lake County, Colorado. Plaintiffs contend that in 1975 EPA issued BOR a National System permit which required BOR to ensure that drainage from the tunnel complied with specific effluent limitations and to submit to EPA a schedule for compliance. The permit was reissued by EPA several times. EPA also issued to BOR its December 1977 Administrative Order establishing a schedule for meeting the 1975 permit effluent limitations. In September 1984, EPA and BOR also entered into an Administrative Stipulation and Agreement that contained a schedule for plugging the tunnel.

Plaintiffs allege that BOR and DOI are in violation of their 1975 National System permit because they have failed to comply with certain permit requirements. In their claim for relief, plaintiffs ask that this Court: 1) issue a mandatory injunction enjoining further permit violations; 2) issue an Order requiring federal defendants to pay civil penalties; and 3) declare that federal defendants are in violation of the CWA. Federal defendants move to dismiss the claim for civil penalties for want of subject matter jurisdiction, arguing that the CWA's waiver of sovereign immunity is not broad enough to permit suits that seek civil penalties against the United States.

It is axiomatic that the United States may not be sued without its consent. Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819-20, 75 L.Ed.2d 840 (1983); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941). There is no waiver of sovereign immunity unless it is clear and unequivocal. Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728, 734, 102 S.Ct. 2118, 2122, 72 L.Ed.2d 520 (1982); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). Waiver cannot be implied. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969). Waivers of sovereign immunity are strictly construed in favor of the sovereign and are not expanded beyond what the language of the statute requires. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983).

Section 313(a) of the CWA, 33 U.S.C. § 1323(a) (Section 313) provides in pertinent part that:

Each department, agency or instrumentality ... 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 or reporting requirement, any requirement respecting 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 State or local court to enforce an order or the process of such court.

33 U.S.C. § 1323(a) (emphasis added).

Section 313, therefore, waives sovereign immunity with respect to "requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution." Federal defendants contend, however, that because § 313 does not expressly consent to suits for "civil penalties," the subsection's waiver of sovereign immunity cannot be construed to extend to civil penalties. Specifically, defendants assert that civil penalties are neither "requirements" nor "sanctions."

Courts are divided on whether civil penalties are included in the term "requirements." See, e.g., Maine v. Dept. of Navy, 702 F.Supp. 322, 327 (D.Me.1988) ("Both generically and specifically, such civil penalties are clearly encompassed within the Resource Recovery and Conservation Act of 1976 (RCRA), 42 U.S.C. § 6961 language `all ... requirements, both substantive and procedural.'"); McClellan Ecological Seepage Situation (MESS) v. Weinberger, 655 F.Supp. 601, 604 (E.D.Ca.1986) (neither § 6001 of the RCRA nor § 313 of the CWA provides for a waiver of sovereign immunity for civil penalties); U.S. v. Washington, 872 F.2d 874, 880 (9th Cir. 1989) (the word "requirements" in § 6001 of the RCRA does not clearly and unambiguously express Congress' intent to waive sovereign immunity regarding the imposition of a civil penalty). Nevertheless, civil penalties clearly are "sanctions" within the meaning of the CWA. Metropolitan Sanitary Dist. v. Dept. of Navy, 722 F.Supp. 1565, 1570 (N.D.Ill.1989); See Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987); U.S. v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 2641-42, 65 L.Ed.2d 742 (1980); See also Adamo Wrecking Co. v. U.S., 434 U.S. 275, 282, 98 S.Ct. 566, 571, 54 L.Ed.2d 538 (1978) (referring to the Clean Air Act's criminal fines and civil penalties as sanctions).

The term "sanction" is defined as, "... That part of a law which is designed to secure enforcement by imposing a penalty for its violation...." Black's Law Dictionary 1203 (Rev. 5th Ed.1979). See also Ballentine's Law Dictionary 1137 (3d Ed. 1969) (sanctions are the "imposition of any form of penalty or fine"). Moreover, the United States Department of Justice has commonly used the word "sanction" to include civil penalties. In its comments submitted to the House of Representatives during its consideration of the RCRA, the Justice Department stated:

This is in response to your request for the views of the Department of Justice on the issue of criminal and civil penalties in environmental laws, with specific reference to H.R. 14496, the RCRA of 1976.

The Department of Justice favors the inclusion of both civil and criminal sanctions for the most effective enforcement of environmental laws. It has been the experience of the Department with the Clean Air Act, ... the

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