US v. COM. OF PA. DEPT. OF ENV. RESOURCES, Civ. A. No. 1:CV-89-1526.
| Decision Date | 02 December 1991 |
| Docket Number | Civ. A. No. 1:CV-89-1526. |
| Citation | 778 F. Supp. 1328 |
| Parties | UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Martin C. Carlson, Asst. U.S. Atty., Harrisburg, Pa., David C. Petrone, Dept. of the Navy, Naval Facilities Engineering Command, Northern Div., Philadelphia, Pa., Carl S. Chronister and Kim Lantz Yoder, Navy Ship Parts Control Center, Mechanicsburg, Pa., Nancy Dougherty-Glazier, Office of Gen. Counsel, Litigation Office, Dept. of the Navy, Thomas R. Bartman, Land & Natural Resources Div., Environmental Defense Section, U.S. Dept. of Justice, Barry M. Hartman, John Copeland Nagle, U.S. Dept. of Justice, Environ. & Natural Resources Div., Environmental Defense Section, Washington, D.C., for plaintiff.
David H. Wersan, Harrisburg, Pa., for defendant.
On October 23, 1989, plaintiff, The United States of America, filed this action for declaratory and injunctive relief against defendant, The Pennsylvania Department of Environmental Resources (DER), seeking a ruling on the ground of sovereign immunity that the DER could not exercise jurisdiction over a contaminated drainageway located at a federal facility, the Navy Ships Parts Control Center (Navy Control Center), in Mechanicsburg, Pennsylvania.
By an unpublished memorandum and order, dated February 22, 1990, we dismissed the complaint, declining to exercise our discretion to entertain the declaratory judgment action while an enforcement proceeding in which the United States could have raised the sovereign immunity defense was pending in the state courts. Holding that we had abused our discretion, the Third Circuit reversed. See United States v. Commonwealth of Pennsylvania, Department of Environmental Resources, 923 F.2d 1071 (3d Cir.1991).
On remand, the United States and the DER have filed cross-motions for summary judgment on the sovereign immunity issue. The plaintiff's motion also deals with another claim set forth in the complaint — whether the DER's administrative order concerning the drainageway was arbitrary and capricious under Pennsylvania law.
The parties agree upon the following facts which we take from the statement of material facts the United States submitted in support of its motion. The drainageway or ditch is about a mile and a half long and eighty feet wide. It flows into Silver Spring Run, also known as Trindle Spring Run, and carries storm water run off from the Navy Control Center. Besides the Navy Control Center, other entities contribute to pollution in the drainageway. In August of 1988, the DER tested soils and sediments in the ditch where it is located on federal property and found, along with certain metals, polychlorinated biphenyls (PCBs), in certain portions of the drainageway.
On August 24, 1988, the DER issued an order under state law directing the Navy Control Center to assess the contamination within a certain period of time and to establish a schedule of cleanup within a certain time thereafter. On March 6, 1989, it issued an amended order to the same effect. The amended order cited as its authority over a federal facility the waivers of sovereign immunity in three federal environmental statutes, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6961, the Clean Water Act (CWA), 33 U.S.C. § 1323(a), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9620(a)(4). As authority for ordering the cleanup under state law, it cited the following sections of the Pennsylvania Clean Streams Law (CSL), 35 P.S. §§ 691.3 (Purdon 1977), 691.301 (Purdon 1977), 691.307 (Purdon Supp. 1991-92), and 691.401 (Purdon 1977). It also relied upon the following sections of the Pennsylvania Solid Waste Management Act (SWMA), 35 P.S. §§ 6018.301, 6018.302, 6018.501 and 6018.601 (Purdon Pamphlet 1991-92). The amended order declared that it was "issued pursuant to laws of the Commonwealth of Pennsylvania concerning removal and remedial actions and control and abatement of solid waste and water pollution." (appendix 1 to defendant's motion, ¶ U).
Preliminarily, the United States points out that a waiver of sovereign immunity must be express and must be strictly construed in the government's favor. See Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). We will evaluate the waiver provisions of the three federal statutes under this standard. We will also bear in mind, however, that waiver need not be accomplished by "a ritualistic formula" and we must also look to underlying congressional policy. See Franchise Tax Board v. United States Postal Service, 467 U.S. 512, 521, 104 S.Ct. 2549, 2554, 81 L.Ed.2d 446, 454 (1984).
42 U.S.C.A. § 9620(a)(4) provides as follows:
State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States when such facilities are not included on the National Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instrumentality.
As we read the plaintiff's argument, it concedes that this section waives sovereign immunity for "state laws concerning removal and remedial action" and hence that a state could proceed against the federal government under an appropriate state environmental law.1 But the United States asserts that the phrase "removal and remedial action" must be understood in a technical sense. In that light, section 9620(a)(4) waives sovereign immunity only for state laws that are, in the words of the United States, "mini-CERCLAs," and which would require specific, predetermined standards for the cleanup of waste. In contrast, the plaintiff would characterize the state laws under which the DER is proceeding here, the CSL and SWMA, as "general environmental laws," not mini-CERCLAs, because they permit ad hoc judgments about the cleanup of a site and the standards to be applied. Hence, The United States argues that, while it may have waived sovereign immunity as to certain state laws, it has not waived its immunity to the state laws at issue in the instant case.
To buttress this argument the plaintiff cites section 9621(d)(2)(A)(ii) which it says is an example of the application of state general environmental laws to a remedial action taken under section 9621. Subsection (d)(2)(A)(ii) provides, in part, that remedial actions under section 9621 shall comply with "any promulgated standard, requirement, criteria, or limitation under a State environmental or facility siting law that is more stringent than any Federal standard, requirement, criteria, or limitation...." In the plaintiff's view, Congress could have used similar language for the waiver in section 9620(a)(4), but instead referred only to "state laws concerning removal and remedial actions."
Plaintiff argues that this is consistent with Congress's intent in CERCLA to provide a comprehensive cleanup of waste sites. Application of the CSL and SWMA would be inconsistent with that goal because the plaintiff views these state laws as each being limited to only one kind of pollution, stream pollution or solid waste, as the case may be. Plaintiff further argues that they are unlike CERCLA in that they lack specific predetermined standards for the evaluation of the plaintiff's conduct. In an apparent contradiction, the United States also argues that only state laws, like those mentioned in section 9621(d)(2)(A)(ii), are sufficient to satisfy the waiver in section 9620(a)(4).
Defendant counters that the United States is reading the phrase "removal and remedial action" much too narrowly. DER refers us to the CERCLA definitions of "remove," "removal," and "remedial action." As defendant points out, these definitions are very broad and do not support the notion that state laws concerned with removal and remedial actions must set forth specific predetermined standards for a waiver to be sufficient. Thus, 42 U.S.C. § 9601(23) provides, in pertinent part:
The terms "remove" or "removal" means the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access....
42 U.S.C. § 9601(24) provides, in pertinent part:
The terms "remedy" or "remedial action" means those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement ... cleanup of released hazardous substances or contaminated materials ... and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment....
DER...
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