ORDERS:
DECISION AND ORDER
STATEMENT OF THE CASE
This matter is before the Division pursuant to the petition of the United States Army Training
Center and Fort Jackson ("Petitioner") for administrative review of a decision of the South Carolina
Department of Health and Environmental Control ("DHEC" or "Respondent"), issuing Water
Pollution Control Permit No. SC0003786 to Petitioner for a waste water treatment facility located
on the Fort Jackson military reservation in Richland County, South Carolina. Specifically, Petitioner
challenges Part II.C.1.b. of the permit, which requires the operator of the facility to be certified by
the South Carolina Board of Environmental Systems Operators, on three grounds. First, Petitioner
asserts that the State of South Carolina is without authority to apply State laws to exclusive Federal
enclaves; second, that South Carolina is preempted by the federal Clean Water Act (CWA) from
imposing state law requirements upon federal facilities; and third, that Congress has not waived
sovereign immunity regarding South Carolina's operator certification requirements. Petitioner
requests this Division either the remove the contested permit condition or modify the permit to
provide that the certification requirement shall not apply to a federal employee acting within the scope
of his or her employment.
A hearing into this matter was held on July 10, 1995, at the Administrative Law Judge
Division, 1205 Pendleton Street, Columbia, South Carolina. For the following reasons, the relief
sought by the Petitioner is denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, considering the burden of persuasion by the parties, I make the following Findings
of Fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner and Respondent.
2. The Petitioner applied for an NPDES permit for the United States Army Training
Center and Fort Jackson.
3. DHEC issued a Water Pollution Control Permit No. SC 0003786 to the Petitioner
on March 20, 1995. Part II. C.1.b. of that permit requires that the operator of the
water treatment facility be certified by the South Carolina Board of Environmental
System Operators.
4. The Fort Jackson sewage facility is classified as a Group III-PC water treatment
facility pursuant to S.C. Code Ann. §48-1-110 (Supp. 1995). That water treatment
facility treats the sewage by a physical and chemical process. The operator in charge
of a Group III-PC water treatment facility must have a "B" level certification. To
receive a "B" level certification, the operator must have at least three years of
experience operating a water treatment facility, a high school diploma or GED
equivalent, successfully complete a "B" level examination and currently hold a "C"
level certificate. See S.C. Code Regs. 51-8 (a) and (f) (1992 and Supp. 1995).
5. The Fort Jackson facility that applied for the above permit discharges the treated
water into Cedar Creek. The discharge point is approximately 500 feet from the
borders of Fort Jackson. The waters of Cedar Creek flow out of Fort Jackson from
the discharge point into Richland County, South Carolina.
6. The operator certification requirements are designed to insure that the potential of
a water treatment facility's violations of DHEC discharge limitations are reduced. The
Respondent's research suggests that facilities operated by certified operators commit
fewer water pollution violations.
7. The Fort Jackson waste treatment facility operators are currently certified in
accordance with DHEC standards to operate the treatment facility.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the above Findings of Fact, I conclude as a matter of law the following:
I. Application of State Law to Federal Enclaves
The Petitioner contends that DHEC cannot require certification of facility operators because
South Carolina is without jurisdiction to apply its laws to exclusive federal jurisdiction enclaves such
as Fort Jackson. It is well established that in order for a federal enclave to be subject to state
regulation, there must be specific congressional authorization. Paul v. U.S, 371 U.S. 245 (1963). In
this case, it is undisputed that Section 313 of the CWA governs the extent to which Fort Jackson may
be subject to South Carolina laws and regulations regarding water pollution. That section provides
in pertinent part:
Each department, agency, or instrumentality of the executive,
legislative, or 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 record keeping 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. . . .
33 U.S.C. §1323(a) (emphasis added).
The question is whether the section is a specific Congressional authorization for states to
enforce their laws on federal enclaves. A cardinal rule of statutory interpretation is that one must first
look to the language of the statute to determine its meaning. Words used in a statute should be given
their plain and ordinary meaning. Multimedia Inc. v. Greenville Airport Commission, 287 S.C. 521,
339 S.E.2d 884 (Ct. App. 1986). When the terms of a statute are plain and unambiguous, the courts
must apply those terms according to their literal meaning. Holley v. Mount Vernon Mills, Inc., 312
S.C. 320, 440 S.E.2d 373 (1994). In this instance, the language of the statute is plain. There is no
question that the United States Army is a "department, agency, or instrumentality of the Federal
Government" which has jurisdiction over Fort Jackson, a "property or facility." Pursuant to the
unambiguous language of the statute, employees or agents of the United States Army, in the
performance of their official duties on Fort Jackson, are subject to the laws and administrative
requirements concerning the control and abatement of water pollution to the same extent as
nongovernmental entities. Furthermore, the Clean Water Act gives primary authority to issue permits
for the discharge of pollutants into navigable waters to the Environmental Protection Agency (EPA),
but also allows the EPA to authorize states to develop their own permitting programs, which are
administered by the states in lieu of the requirements of the CWA. See 33 U.S.C. §1342(b); 40
C.F.R. Part 123.22. South Carolina has a federally approved permit program pursuant to a
Memorandum of Agreement between South Carolina and the EPA. See National Pollutant Discharge
Elimination Memorandum of Agreement between the State of South Carolina and the United States
Environmental Protection Agency (Oct. 27, 1994). As the Fourth Circuit Court of Appeals has
stated, "The Act [CWA] specifically provides that pollution be controlled by state law if that law
satisfies the federal act. South Carolina has adopted just such a statute, the South Carolina Pollution
Control Act [citation omitted]." Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d
1200, 1207 (1986). The only water pollution control program applicable in South Carolina is the
EPA-approved program administered by DHEC, under which the permit in this case was issued. If
Petitioner's argument were correct and South Carolina could not enforce its permit requirements on
Fort Jackson, then the entire permit, not just the operator certification requirements, would be
unenforceable, since the permit was issued under South Carolina law. Clearly, Congress did not
intend such a result when it enacted Section 313. Accordingly, I conclude that Section 313 of the
Clean Water Act is a specific Congressional authorization allowing state regulation with respect to
the control and abatement of water pollution on Federal property or facilities.
II. Preemption
The Petitioner further asserts that South Carolina is preempted by the CWA from imposing
the requirements of the South Carolina Pollution Control Act upon Fort Jackson, and therefore its
authority to administer NPDES permits is limited to the Federal NPDES requirements, which do not
include operator certification. This argument overlooks the basic permitting structure set up under
the CWA. As a rule, the Administrator of the EPA issues permits for the discharge of pollutants into
navigable waters. 33 U.S.C. §1342(a)(1). However, as discussed previously, the Administrator may
approve permitting programs submitted by individual states. The governor of a state that wishes to
administer its own permit program may submit to the Administrator "a full and complete description
of the program it proposes to establish and administer under State law. . . ." 33 U.S.C. §1342(b)
(emphasis added). When the Administrator approves a state's permit program, the Administrator
suspends the issuance of permits under the CWA thereby relinquishing that authority to the approved
state. 33 U.S.C. §1342(c)(1).
The courts that have commented on this subject have indicated that the CWA does not
preempt state water pollution laws. The Second Circuit Court of Appeals held that it is "indisputable
that Congress specifically declined to attempt a preemption of the field in the area of water pollution
legislation and as much as invited the States to enact requirements more stringent than the federal
standards." Mianus River Preservation Committee v. Administrator, Environmental Protection
Agency, 541 F.2d 899, 906 (2d Cir. 1976). The Sixth Circuit noted that the CWA "mandates that
the states may create their own water pollution laws, which may qualify to replace the requirements
of the Clean Water Act." Ohio v. U.S. Dept. of Energy, 904 F.2d 1058, 1061 (6th Cir. 1990), rev'd
on other grounds, ____ U.S.____, 112 S.Ct. 1627 (1992) (emphasis added). The United States
Supreme Court has also stated that the CWA gives the EPA the primary authority to issue permits,
"but allows EPA to authorize a State to supplant the federal permit program with one of its own" if
the state scheme meets EPA requirements. U.S. Dept. of Energy v. Ohio, 112 S.Ct. at 1631
(emphasis added). Clearly, in states such as South Carolina that have their own permitting programs,
the administration of those programs is a matter of state rather than federal law. Moreover, the states
are not precluded from adopting or enforcing permit requirements that are more stringent or more
extensive than the federal requirements. See 40 C.F.R. §123.1(h)(i)(1). From the language of the
CWA itself, the regulations promulgated under it, and the court decisions construing it, it is evident
that the requirements set forth in the South Carolina Pollution Control Act are not preempted by the
CWA, but rather operate as a substitute for the CWA's requirements. Therefore, South Carolina is
not preempted by the CWA from adopting and enforcing permit requirements and conditions that are
more restrictive than the federal requirements.
III. Sovereign Immunity
Finally, Petitioner asserts that Section 313 of the CWA does not waive sovereign immunity
as to the operator certification requirements of S.C. Code Ann. §48-1-110. Waivers of the United
States' sovereign immunity must be clear, express, and unambiguous, and cannot be implied from
vague language. Block v. North Dakota, 461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983).
Furthermore, such waivers must be strictly construed in favor of the sovereign. McMahon v. United
States, 342 U.S. 25, 72 S.Ct. 17, 96 L.Ed. 26 (1951). However, "when Congress enacts a clear
waiver, that waiver should not be 'thwarted by an unduly restrictive interpretation' in the courts." Ohio v. U.S. Dept. of Energy, 904 F.2d at 1060, quoting Canadian Aviator, Ltd. v. United States,
324 U.S. 215, 222, 65 S.Ct. 639, 643, 89 L.Ed. 901 (1945). 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, 104 S. Ct. 2549, 81 L.Ed.2d 446 (1984).
With these guiding principles in mind, the court must first look to the language of the statute,
which should be interpreted according to its ordinary usage, to determine whether Congress intended
to waive sovereign immunity with respect to the certification of water treatment plant operators on
Federal facilities in South Carolina. Ohio v. U.S. Dept. of Energy, 904 F.2d at 1060. The relevant
portion of Section 313 provides that Federal facilities must comply with "all Federal, State, interstate,
and local requirements . . . respecting the control and abatement of water pollution" to the same
extent as any nongovernmental entity." 33 U.S.C. §1323. The section goes on to state that "the
preceding sentence [regarding compliance with state requirements] shall apply . . . to any requirement
whether substantive or procedural (including any record keeping or reporting requirement, any
requirement respecting permits and any other requirement whatsoever)," and that "this subsection
shall apply notwithstanding any immunity of such [Federal] agencies, officers, agents, or employees
under any law or rule of law. . . . " Id. This expansive language leaves no room for interpretation.
The statute on its face waives sovereign immunity for all State requirements regarding water pollution
control. "The clear purpose of [Section 313] is to make federal agencies subject to applicable state
and local requirements, procedural as well as substantive, respecting the control and abatement of
water pollution." U.S. ex rel. TVA v. Tennessee Water Quality Control Bd., 717 F.2d 992, 998 (6th
Cir. 1983). This case, therefore, necessarily turns on whether the operator certification requirements
set forth in the South Carolina Pollution Control Act are "requirements . . . respecting the control
and abatement of water pollution" within the meaning of Section 313.
Before 1977, Section 313 read as follows:
Each department, agency, or instrumentality of the executive,
legislative, or 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,
shall comply with Federal, State, interstate, and local requirements
respecting control and abatement of pollution to the same extent that
any person is subject to such requirements, including the payment of
reasonable service charges.
33 U.S.C. §1323 (1976).
In Environmental Protection Agency v. California, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d
578 (1976), and Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976), the
Supreme Court held that the word "requirements" in former Section 313 of the Clean Water Act and
the analogous provision in the Clean Air Act did not include state permit requirements, and that
federal entities were not required to obtain state permits as a condition of operation. The Court
stated that the statutes as then worded required federal facilities to comply with state requirements,
but not "all" state requirements. Hancock, 426 U.S. at 182. In response to these decisions,
Congress amended Section 313 to include the expansive waiver of sovereign immunity set forth in
Subsection A above, subjecting federal facilities to "all Federal, State, interstate, and local
requirements, both substantive and procedural." 33 U.S.C. §1323(a) (emphasis added). The
legislative history of the amendments indicates:
The act has been amended to indicate unequivocally that all Federal
facilities and activities are subject to all of the provisions of State and
local pollution laws. Though this was the intent of the Congress in
passing the 1972 Federal Water Pollution Control Act Amendments,
the Supreme Court, encouraged by Federal agencies, has
misconstrued the original intent.
S. Rep. No. 370, 95th Cong., 1st Sess. 67 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4392
(emphasis added). The discussion goes on to state:
Since the substantive requirements of the act and of State and local
law would be unenforceable unless procedural provisions were also
met section 313 is amended to specify that, as in the case of air
pollution, a Federal facility is subject to any Federal, State, and local
requirement respecting the control or abatement of water pollution,
both substantive and procedural, to the same extent as any person is
subject to these requirements. This includes, but is not limited to,
requirements to obtain operating and construction permits, reporting
and monitoring requirements, any provisions for injunctive relief and
such sanctions imposed by a court to enforce such relief, and the
payment of reasonable service charges.
Id. (Emphasis added). It is thus evident that Congress intended that the term "requirements" should
not be limited, but should include a State's entire regulatory scheme for controlling water pollution. See United States v. South Coast Air Quality Management District, 748 F. Supp. 732, 738 (C.D. Cal.
1990) ("There is no requirement that Congress express its waiver by means of a list approach"). The
fact that Section 313 does not specifically mention "operator certification requirements," therefore,
is of no consequence in determining whether such requirements are within the scope of the statute.
Since the 1977 Amendments, the Supreme Court has held that Section 313 does not subject
federal facilities to punitive sanctions such as civil fines imposed for violations of the CWA or RCRA
(the Resource Conservation and Recovery Act, which contains a similar provision to Section 313). U.S. Dept. of Energy v. Ohio, 112 S.Ct. 1627 (1992). In interpreting RCRA's federal-facilities
section, which is analogous to Section 313, the Court stated that the term "requirements" "'can
reasonably be interpreted as including substantive standards and the means for implementing those
standards, but excluding punitive measures.'" Id. at 1639-40 (citation omitted).
The operator certification requirements at issue in this case, however, are not punitive
measures. Rather, they are part and parcel of the permit issued to Petitioner. Moreover, the
uncontroverted evidence in this case indicates that operator certification requirements are designed
to insure that a facility's violations of the limitations in its permit are minimized, since facilities
operated by certified operators commit fewer water pollution violations. Therefore, the operator
certification requirements can be characterized as one means for implementing water pollution
standards. In view of the clear language of Section 313, the legislative history of the 1977
amendments, and subsequent interpretations of the amended language, I conclude that the waiver
of sovereign immunity set forth in Section 313 of the CWA is an unambiguous waiver of sovereign
immunity with respect to South Carolina's operator certification requirements. Accordingly, Fort
Jackson must comply with this requirement.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Petitioner's request for amendment or modification of Permit No. SC0003786
is hereby denied.
AND IT IS SO ORDERED.
__________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
March 26, 1996 |
