U.S. v. State of Wash.

• Decision Date: 03 May 1989
• Docket Number: No. 87-4371,87-4371
• Citation: 872 F.2d 874
• Parties: , 57 USLW 2615, 19 Envtl. L. Rep. 20,755 UNITED STATES of America, Plaintiff-Appellee, v. STATE OF WASHINGTON; the Department of Ecology of the State of Washington, Defendants-Appellants, The Environmental Hearings Office of the State of Washington, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 874

872 F.2d 874

29 ERC 1467, 57 USLW 2615, 19 Envtl.

L. Rep. 20,755

UNITED STATES of America, Plaintiff-Appellee, v. STATE OF WASHINGTON; the Department of Ecology of the State of Washington, Defendants-Appellants The Environmental Hearings Office of the State of Washington, Defendant.

No. 87-4371.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 10, 1989.

Decided April 12, 1989.

As Modified May 3, 1989.

Kathleen D. Mix, Asst. Atty. Gen., Olympia, Wash., for defendant-appellant, Dept. of Ecology of the State of Wash.

Jacques B. Gelin, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Reed Sato, Deputy Atty. Gen., Sacramento, Cal., for amicus, State of Cal.

Michael Axline, Western Natural Resources Law Clinic, Eugene, Or., for amicus.

Appeal from the United States District Court for the Eastern District of Washington (Spokane).

Before WRIGHT and ALARCON, Circuit Judges, and TEVRIZIAN ^*, District Judge.

ALARCON, Circuit Judge:

The State of Washington, the Department of Ecology of the State of Washington, and the Environmental Hearings Office of the State of Washington (hereinafter collectively referred to as "Washington") appeal from the grant of summary judgment in favor of the United States of America (United States). The issue we must decide in this case is whether Congress, in enacting the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. Sec. 6961 (1982), expressly and unequivocally waived federal sovereign immunity from administrative penalties assessed by a state for alleged violations of its hazardous waste management laws. Because we conclude that Congress has not expressly waived federal sovereign immunity from civil penalties imposed by a state administrative agency, we affirm.

I.

The United States Department of Energy (DOE) owns and manages the Hanford Nuclear Reservation (Hanford), a nuclear production, research and development facility in Richland, Washington. On February 5, 1986, the Department of Ecology (Ecology) issued a "Notice of Penalty Incurred and Due to DOE" pursuant to Wash.Rev.Code Sec. 70.105.080 purporting to impose an administrative penalty in the amount of $49,000 for alleged violations at Hanford of the state of Washington's hazardous waste law. Section 70.105.080(1) provides, in relevant part: "Every person who fails to comply with any provision of this chapter or of the rules adopted thereunder shall be subjected to a penalty in an amount of not On March 7, 1986, the DOE filed an application with Ecology for relief from the penalty imposed by Ecology on the ground that Congress had not waived the United States' sovereign immunity from civil penalties imposed by state administrative agencies. On May 30, 1986, Ecology issued its "Notice of Disposition upon Application for Relief from Penalty" denying the application for relief from the penalty assessment.

                more than ten thousand dollars per day for every such violation."    The administrative penalty was assessed for the following violations:  (1) Operation of dangerous and hazardous waste solar evaporation basins without approval or permit;  (2) Illegal accumulation of dangerous waste in four non-designated storage areas;  (3) Failure to develop adequate closure and post-closure plans for fuel sites;  (4) Failure to install a ground water monitoring system at its central landfill site or have a valid waiver;  (5) Failure to install, operate, and maintain an adequate ground water monitoring system at the solar evaporation basins
                

The DOE filed a notice of appeal on June 30, 1986 with the Pollution Control Hearings Board (Hearings Board) seeking review of the denial of its application for relief on the ground that Ecology lacked jurisdiction to impose the penalties. The DOE also argued there was no factual basis for the penalties. On October 6, 1986, the DOE filed a motion to dismiss the penalty assessment based on sovereign immunity. On January 12, 1987, the Hearings Board denied the motion to dismiss. The Hearings Board concluded that administrative penalties are within the federal facilities provisions of RCRA, 42 U.S.C. Secs. 6901 et seq. (1982 & Supp. IV 1986).

The United States filed a complaint for declaratory relief in United States District Court for the Eastern District of Washington on May 4, 1987. The complaint alleges that Ecology and the Hearings Board violated the doctrine of sovereign immunity by attempting to impose a civil penalty on the DOE. The parties filed cross-motions for summary judgment on June 18, 1987.

The district court granted summary judgment in favor of the United States on October 30, 1987. On January 22, 1988, the district court filed findings of fact and conclusions of law. The district court made no factual finding as to any alleged violation of state or federal environmental law by the United States. The district court concluded that Section 6001 of RCRA, 42 U.S.C. Sec. 6961, does not contain a waiver of sovereign immunity from civil penalties imposed by state administrative agencies. The district court held that the term "requirements" as used in section 6961 does not refer to civil penalties imposed by state administrative agencies.

II.

Washington offers three arguments in support of its appeal:

One. The plain words of 42 U.S.C. Sec. 6961 contain a sweeping waiver of sovereign immunity allowing the imposition of civil penalties.

Two. Congress' reaction to the narrow construction given to the word "requirements" in Hancock v. Train, 426 U.S. 167 [96 S.Ct. 2006, 48 L.Ed.2d 555] (1976) in its subsequent amendment to the Clean Air Act demonstrates that section 6961 was intended to include a waiver of sovereign immunity regarding civil penalties imposed against federal facilities by a state administrative agency.

Three. The district court erred in concluding this court's interpretation of the word "requirements" in California v. Walters, 751 F.2d 977 (9th Cir.1984) is applicable to civil penalties.

An amicus brief filed by several states (Colorado, et al.), urges us to reverse the district court, arguing that because Congress authorized a citizen suit against the United States under the RCRA, it also intended to waive sovereign immunity regarding civil penalties by state administrative agencies. We discuss each of these contentions separately after explaining our standard of review and the applicable rulings governing the interpretation of an alleged waiver of sovereign immunity.

III.

We review the grant of summary judgment independently, without deference to the district court's rulings, in "the light most favorable to the non-moving party, to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986) (citations omitted).

Absent an express waiver of sovereign immunity, the "activities of the Federal Government are free from regulation by any state." Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 1139, 87 L.Ed. 1504 (1943) (footnote omitted). Congress may waive sovereign immunity and authorize the states to regulate federal instrumentalities. Id. at 446, 63 S.Ct. at 1140. Waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (citation omitted).

IV.

Section 6961 provides in pertinent part:

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 for 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. Sec. 6961 (emphasis added).

Washington argues that "sensibly construing the statute as a whole according to the plain meaning of the words used in the statute [citation omitted] [this] court must reach the affirmative conclusion that the United States is subject to state-imposed penalties under RCRA for violations of hazardous waste laws." Section 6961 does not contain an unequivocal expression of a waiver of sovereign immunity to civil penalties imposed by a state administrative agency. Washington asks us to imply a waiver of state imposed penalties because Congress provided in section 6961 that all federal facilities be subject to all substantive and procedural "requirements" contained in state laws controlling solid or hazardous waste disposal. We disagree.

The plain words employed by Congress make it clear that federal facilities must comply with a state's substantive standards for waste disposal. A federal facility must also obtain all necessary permits and file reports required by state law. The statute makes no reference to immunity from penalties imposed by state agencies. Section 6961 does provide, however, that United States agencies are not immune from sanctions imposed by a court for a violation of an order to comply with an injunction compelling compliance with a requirement of state law. Thus, the only unequivocal and express reference to sovereign immunity in section 6961 is directed at court...