State of Me. v. Department of Navy

• Decision Date: 23 November 1988
• Docket Number: Civ. No. 86-0211-P.
• Citation: 702 F. Supp. 322
• Parties: STATE OF MAINE, et al., Plaintiffs, v. DEPARTMENT OF the NAVY, et al., Defendants.
• Court: U.S. District Court — District of Maine

702 F. Supp. 322

STATE OF MAINE, et al., Plaintiffs, v. DEPARTMENT OF the NAVY, et al., Defendants.

Civ. No. 86-0211-P.

United States District Court, D. Maine.

November 23, 1988.

Marcia J. Cleveland, Asst. Atty. Gen., Augusta, Me., for plaintiffs.

David R. Collins, Asst. U.S. Atty., Portland, Me., F. Henry Habich, II and Mary Elizabeth Ward, Attys., U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., for defendants.

OPINION AND ORDER ACTING UPON THE MAGISTRATE'S RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

GENE CARTER, District Judge.

I.

This matter is before the Court on objections filed to the Magistrate's Recommended Decision on Defendants' Motion for Partial Summary Judgment. A hearing on the motion was held before the Honorable D. Brock Hornby, United States Magistrate. The United States Magistrate filed with the Court on November 16, 1987, with copies to counsel, the Recommended Decision referred to. In the Recommended Decision, the Magistrate recommends that the Defendants' Motion for Partial Summary Judgment be denied except as to the State's claim under the Oil Discharge Prevention and Pollution Control Act, as to which claim, the motion be granted.¹

On November 27, 1987, Defendants filed timely objections to the Recommended Decision to the extent that it recommends

(1) that Maine be permitted to recover civil penalties from the Defendants pursuant to Maine's hazardous waste statute, Me.Rev.Stat.Ann. Title 38, §§ 1301 to 1319-K (Supp.1985) notwithstanding the lack of any clear and unequivocal waiver of sovereign immunity under the federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6921-6934;

(2) that Maine be permitted to recover a penalty of triple fees pursuant to Me. Rev.Stat.Ann. Title 38, §§ 348, 1319-I(6), from the Defendants for failure to pay certain hazardous waste generator or operator fees, again notwithstanding the lack of a waiver of sovereign immunity under RCRA;

(3) that Maine be permitted to recover "fees" against the Defendants pursuant to Me.Rev.Stat.Ann. Title 38, §§ 1319-H, 1319-I, "fees" which are an unconstitutional tax against an instrumentality of the United States because no benefit accrues to Defendants from the payment of such "fees"; and

(4) that Defendant's sic Motion for Partial Summary Judgment be denied on the issue of whether the "fees" Maine seeks to recover against the Defendants are an unconstitutional tax against the United States because further factual development is needed and because the Court could attempt to rewrite the tax to make it a fee.²

Defendants' Objections to Magistrate's Recommended Decision at 1-2.

Plaintiffs also filed timely objections to the Recommended Decision on December 2, 1987, which objections read as follows:

(1) Plaintiffs object to the Recommended Decision of the Magistrate if it is read to suggest that waivers of sovereign immunity must be read strictly to favor the federal government. Plaintiffs argue that the federal facilities provision of the Resource Conservation and Recovery Act (42 U.S. C. § 6961) must be read fairly to effectuate the intent of Congress, that federal facilities comply with state hazardous waste law.

(2) Plaintiffs object to the statements in the Recommended Decision that the legislative history of the federal facilities provision is unclear or confusing. Plaintiffs contend that the available legislative history supports the imposition of civil penalties in this case.

(3) Plaintiffs object to the Recommended Decision to the extent that it states in dicta that the doctrine of sovereign immunity may be applied to a state in an action to enforce state law. This case presents a question of the proper relationship between the sovereignty of the state and federal governments, which should be decided on the explicit constitutional provisions governing that relationship.

(4) Plaintiffs object to the holding in the Recommended Decision that the term "reasonable service charges" means "a charge for having a service available" and the Decision's reliance on utility cases to support this interpretation. Plaintiffs argue that the term "service charges" means a fee designed to cover the cost of a State's hazardous waste regulatory program, including the cost of processing licenses and ensuring compliance with them and regulations.

(5) Plaintiffs object to the Recommended Decision to the extent it appears to limit the State's proof that its fees are reasonable to a comparison between the cost of the hazardous waste response team and the benefit of that hazardous waste response capability to generators. Plaintiffs argue that the annual and generator fees are used both to pay some of the costs of Maine's hazardous waste regulatory program and to support the hazardous waste spill response team. Plaintiffs intend to prove at trial that the portion of the fees used to cover the costs of the regulatory program are reasonable in light of the cost of that program. The State will also introduce evidence on the cost of the hazardous waste response team and the cost of the benefits it confers upon generators.

Plaintiff's Objection to Magistrate's Recommended Decision at 1-3.

This Court has now reviewed and considered at length the Magistrate's Recommended Decision, together with the entire record made in the case, including the written objections of the Plaintiffs and of the Defendants and the memoranda submitted by counsel before the Magistrate and in this Court. The Court, having considered and made a de novo determination of all matters adjudicated by the Magistrate's Recommended Decision to which objection has been made, see 28 U.S.C. § 636(b)(1)(C) and Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980), now renders its opinion and order acting upon the Magistrate's Recommended Decision herein.

II.

This action was commenced by the State of Maine and Maine's Board of Environmental Protection against the Department of the Navy (hereinafter referred to as "the United States"), which owns and operates the Portsmouth Naval Shipyard in Kittery, Maine. Plaintiffs filed the action in York County Superior Court, seeking an order which required "the Shipyard to handle hazardous waste in compliance with Maine's hazardous waste laws and regulations, to pay fees into Maine's Hazardous Waste Fund on the same basis as other generators and operators of hazardous waste facilities, ... to report and clean up oil spills in compliance with Maine's oil pollution laws and regulations" and to pay civil penalties for past violations from 1981 forward. Complaint ¶ 1. The action was removed by the United States to this Court and the Complaint was amended to add the Department of Defense as a defendant. The Defendants filed a motion for partial summary judgment which generates two issues, ruled upon by the Magistrate in the Recommended Decision;³ namely, (1) whether, assuming arguendo that the shipyard has violated Maine laws, it can be compelled to pay the civil penalties prescribed by the state statutes, and (2) whether the fees sought by the State constitute a "tax" which the State is constitutionally prohibited from imposing on the United States.

III.

With respect to the first issue, the Magistrate concluded that the Resource Conservation and Recovery Act, 42 U.S.C. § 6961, does permit, in clear language, the recovery of civil penalties by a state administrative agency against the federal government independently of court-enforced injunctive relief. Accordingly, the Magistrate recommended that the Defendants' motion for partial summary judgment be denied insofar as civil penalties are concerned.

The Court concurs with the result reached by the Magistrate but finds much less occasion for the analytical uncertainty exhibited by the Recommended Decision. The issue arises under section 6961 of the Resource Conservation and Recovery Act, which reads in pertinent part as follows:

§ 6961. Application of Federal, State, and local law to Federal facilities

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste 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 or injunctive relief and such sanctions as may be imposed by a court to enforce 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. Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.

42 U.S.C. § 6961 (emphasis added). After setting out the language of the statute, the Magistrate states his immediate conclusion, with which this Court wholeheartedly concurs; namely, "an intelligent person reading the statute would think the message plain: federal facilities will be treated the same as private institutions so far as enforcement of the solid waste and hazardous waste laws are concerned.... It is hard to imagine clearer language short of listing every possible variation of such requirements." Recommended Decision at 3. The Magistrate then undertakes a discussion of the case law, notably Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976), and its progeny, and a consideration of the impact of congressional action subsequent to that decision in respect to several different federal environmental sta...