ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This case is before me pursuant to S.C. Code Ann § 1-23-600 (Supp. 1995) and 25 S.C. Code
Regs. 61-72 (Supp. 1995). The parties in this matter, the Charleston Naval Shipyard (CNS), a
federal facility, and the South Carolina Department of Health and Environmental Control
(DHEC), stipulate to the following facts.
On August 29, 1995, CNS violated S.C. Regs. 61-86.1, § V.A. (1976) and U.S. Environmental
Protection Agency Regulation 40 C.F.R. § 61.145(b) (1995), when CNS began removing material
containing asbestos from its facility without providing DHEC with notification ten days prior to
the commencement of the project.(1) DHEC issued a Notice of Violation to CNS on October 10,
1995. To resolve this violation, DHEC proposed a Consent Order which would have assessed a
three thousand dollar civil fine upon CNS. Because of the inclusion of the civil fine, CNS
declined to sign the Consent Order. On May 6, 1996, DHEC responded by issuing Administrative
Order 96-41-A which ordered CNS to pay the three thousand dollar civil fine. This dispute
reaches this tribunal through CNS's appeal of DHEC's Administrative Order 96-41-A.
CNS concedes that the Clean Air Act (CAA), 42 U.S.C. §§ 7401, et seq. (1994), grants states the
power to enforce state air pollution laws against federal facilities. CNS also concedes that states
may impose "coercive fines" upon federal facilities for violations of environmental
regulations.(2)However, CNS argues that the CAA does not waive the federal government's
sovereign immunity from state imposed punitive fines, which are assessed for past violations of
environmental regulations. DHEC argues that the CAA waives the United States' sovereign
immunity thus authorizing the assessment of all fines and civil penalties against the federal
government for violations of pollution regulations. CNS asks this tribunal to nullify the portion of
DHEC's Administrative Order 96-41-A that imposes a punitive fine for past violations upon CNS.
Since there are no disputed material facts in this case, the parties have agreed to forego a hearing
and request, instead, that this tribunal decide this case solely as a matter of law. The disposition
of this matter includes a consideration of the briefs and prehearing statements submitted by the
parties.
ISSUE
The only issue of law before this tribunal is whether the federal facilities section of the
CAA, 42 U.S.C. § 7418 (1994), waives the United States' sovereign immunity from civil fines
levied by state agencies for past violations of environmental regulations by the federal
government.
CONCLUSIONS OF LAW AND DISCUSSION
A. The Clean Air Act and Sovereign Immunity
It has long been recognized that a state or individual citizen may not sue the federal government
unless the United States waives its sovereign immunity from suit. U.S. v. Sherwood, 312 U.S.
584 (1941). Any waiver of the federal government's sovereign immunity must be clearly and
unequivocally expressed in statutory text. United States Dep't of Energy v. Ohio, 503 U.S. 607,
615 (1992) (hereinafter "DOE v. Ohio"); United States v. Nordic Village Inc., 503 U.S. 30, 34
(1992) (hereinafter "Nordic Village"); United States v. Georgia Dep't of Natural Resources, 897
F.Supp. 1464, 1466 (N.D. Ga. 1995) (hereinafter "Georgia DNR"). Further, a waiver of the
United States' sovereign immunity must be strictly construed in favor of the sovereign. DOE v.
Ohio, 503 U.S. at 615; Nordic Village, 503 U.S. at 34; Georgia DNR, 897 F.Supp. at 1466.
It is with the preceding precedents in mind that this tribunal must determine the extent of the
United States' waiver of sovereign immunity in the following federal facilities section of the CAA,
42 U.S.C. § 7418(a) (1994). Section 118(a) provides:
Each department, agency, and instrumentality of the executive, legislative, and 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 of air pollutants,
and each officer, agent, or employee thereof, 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 air pollution in the same manner, and to
the same extent as any nongovernmental entity. 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 any requirement to pay a fee or charge imposed by any State or local
agency to defray the costs of its air pollution regulatory program, (C) to the exercise of any
Federal, State, or local administrative authority, and, (D) 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 for which he is not otherwise liable.
42 U.S.C. § 7418(a) (1994). (emphasis added).
B. Legislative History and the Extent of Waivers
DHEC argues that Section 118(a) of the CAA is a clear and unequivocal waiver of the federal
government's sovereign immunity from punitive fines assessed by state agencies for a federal
violation of air pollution regulations. To support its contention that Section 118(a) is a waiver of
immunity from punitive fines, DHEC relies heavily and improperly on the legislative history of the
CAA. DHEC Brief at 5-6. This tribunal may not consider legislative history, no matter how
compelling, when determining the extent of a waiver of sovereign immunity. Nordic Village, 503
U.S. at 37; Georgia DNR, 897 F.Supp. at 1466. Further, this tribunal cannot use legislative
history to clarify a statutory waiver, for "[i]f clarity does not exist there [in the text of the statute],
it cannot be supplied by a committee report." Nordic Village, 503 U.S. at 37.
Nordic Village is binding precedent that prohibits a tribunal from using legislative history to define
the extent of sovereign immunity waivers. DHEC's assertion that the Supreme Court, in
subsequent decisions, has maintained an "inconsistent viewpoint" (DHEC Brief at 4, note 3) on
using legislative history to define the extent of waivers is unpersuasive and unsupported by the
cases cited.(3)
Nordic Village's prohibition on the use of legislative history to define the extent of waivers is
buttressed by case law mandating that waivers must be clear and unambiguous. DOE v. Ohio and Georgia DNR, supra. If a court must refer to legislative history to define the extent of a waiver,
the waiver is necessarily unclear and ambiguous. Georgia DNR, 897 F.Supp. at 1466. The very
act of using legislative history to define the extent of a waiver denies the requiredunequivocal
nature of that waiver.
C. Department of Energy v. Ohio: Determining the Extent of Waivers in the CWA and
RCRA
In 1986, the state of Ohio fined the Department of Energy for past violations of the Clean Water
Act (CWA) and the Resource Conservation and Recovery Act (RCRA) that occurred at the
Department's uranium processing plant in Fernald, Ohio. In the case that resulted from this
dispute, DOE v. Ohio, the United States Supreme Court held that the waivers of sovereign
immunity found in the CWA, 33 U.S.C. § 1251, et seq., and the RCRA, 42 U.S.C. § 6901, etseq.,
allow states to impose coercive fines, but not punitive fines upon federal facilities for violations of
environmental regulations.
Since the waiver language in the CAA is nearly identical to the waiver language of the CWA and
RCRA, this tribunal will analogously apply the Supreme Court's waiver analysis in DOE v. Ohioto
aid in determining the extent of the CAA's waiver in the present dispute between DHEC and
CNS.(4)
The Supreme Court began its analysis by differentiating "coercive" fines from "punitive" fines.
The Court defined coercive fines as those fines "imposed to induce [federal facilities] to comply
with injunctions or other judicial orders designed to modify behavior prospectively," and
"punitive" fines as those fines "imposed to punish past violations of those statutes or state laws
supplanting them." DOE v. Ohio, 503 U.S. at 613-614. Administrative Order 96-41-A is clearly
an attempt by DHEC to punitively fine CNS for a past violation of the CAA.
The Supreme Court's interpretation of the waiver language "process and sanctions" and "all . . .
requirements," as it appears in the CWA and the RCRA, is dispositive as to the meaning of
virtually identical waiver language in the CAA. The Court held that "the use of the term 'sanction'
carries no necessary implication that a reference to punitive fines is intended." Id., at 621; Georgia DNR, 897 F.Supp. at 1468. Thus, the use of "sanction" in the CAA waiver at 42 U.S.C.
§ 7418(a) is not necessarily indicative of a punitive fine and could just as easily be a coercive fine.
Further, the Court found that the coupling of "process and sanctions" in the RCRA and the CWA
is normally interpreted as referring to coercive rather than punitive fines. " 'Process' normally
refers to the procedure and mechanics of adjudication and the enforcement of decrees or orders
that the adjudicatory process finally provides" and not backward looking punitive fines. DOE v.
Ohio, 503 U.S. at 623. Accordingly, this tribunal interprets the same coupling of "process and
sanctions" in the CAA as indicative of a coercive and not a punitive fines waiver. SeeGeorgia
DNR, 897 F.Supp. at 1469.
The Court next determined that the phrase "all . . . requirements," as it appeared in the RCRA,
"can reasonably be interpreted as including substantive standards and the means for implementing
those standards, but excluding punitive measures." DOE v. Ohio, 503 U.S. at 627-628
(quotingMitzelfelt v. Department of Air Force, 903 F.2d 1293, 1295 (10th Cir. 1990)). Again,
this tribunal must accept the Supreme Court's interpretation of the phrase "all . . . requirements"
as having a "non-punitive" effect and apply this interpretation to the identical language in the
CAA's waiver.
Regarding punitive fines for past violations, the Supreme Court found Congress's silence in the
CWA and the RCRA waivers particularly persuasive. The Court called attention to the fact that
"the statute makes no mention of any mechanism for penalizing past violations, and this absence
of any example of punitive fines is powerful evidence that Congress had no intent to subject the
United States to an enforcement mechanism that could deplete the federal fisc . . . ."(5) Id., at 628.
The CAA also does not contain plain phrases like "punitive fines" or "penalties for past violations"
that would indicate a clear, unequivocal Congressional desire to waive the federal government's
immunity from civil penalties. Furthermore, such a waiver cannot be inferred.
D. The Absence of Certain Equitable Language in the CAA
The CAA's waiver differs slightly from the CWA and the RCRA waivers, and it is this difference
that requires further examination by this tribunal before a determination on the extent of the
CAA's waiver can be made. The CWA and the RCRA waivers contain equitable language that
clarifies and reinforces the coercive and injunctive nature of their waivers. The CAA's waiver does
not contain the same or similar language.(6)
This tribunal does not dispute that the phases "such injunctive relief" and "enforce an order or the
process of such court" clarify and reinforce the coercive nature of the waivers in the CWA and the
RCRA. However, the absence of similar equitable language in the CAA's waiver is not of such
import that a punitive fines waiver becomes the only unequivocal interpretation that can be
reached regarding that omission.
The omission of such an equitable phrase in the CAA can not be interpreted in a vacuum. The
omission of the equitable phrase in the CAA's waiver must be considered together with the
Supreme Court's enunciation in DOE v. Ohio that "process and sanctions" and " all . . .
requirements" is indicative of a waiver of immunity from coercive fines and not punitive fines.
This tribunal finds that the Supreme Court's interpretation of the phrases "process and sanctions"
and "all . . . requirements" as non-punitive in their effect outweighs the interpretive effect of the
absence of the concluding and clarifying equitable language.
Further, if this tribunal were to hold that the absence of a single equitable phrase in the text of the
CAA is tantamount to a punitive fines waiver, this tribunal would be in the improper position of presuming that such an omission gives rise to such a waiver. This tribunal should not have to
strain to infer such a waiver. Instead, this tribunal should be confronted with an unequivocal
waiver of sovereign immunity gleaned from a plain reading of the statutory text that requires no
attenuated inferences. See DOE v. Ohio, 503 U.S. at 615; Nordic Village, 503 U.S. at 34.(7)
In sum, this tribunal accepts DOE v. Ohio as dispositive of the issues in the present case. The
waiver language of the RCRA and the CWA appears in CAA's waiver, and is, therefore, subject
to the interpretation applied by the Supreme Court in DOE v. Ohio. Both the RCRA and the
CWA waivers contain concluding equitable phrases and the CAA does not. However, this is not
a sufficient basis for this tribunal to find a punitive fines waiver in the CAA. When the Supreme
Court decided DOE v. Ohio and Nordic Village, the Court, though judicial interpretation,
pronounced that a definitive and unequivocal standard had to be satisfied in order to declare that
Congress intended to waive the United States' sovereign immunity. Given the text of the CAA's
waiver, a declaration of the waiver of the United States' sovereign immunity in this case can not
be made, as Congress did not make such intentions unequivocally clear.
ORDER
For the preceding reasons, this tribunal finds that Section 118(a) of the CAA, 42 U.S.C. § 7418
(1994) does not unequivocally waive the federal government's sovereign immunity from punitive
fines imposed by the states for past violations of environmental regulations. Thus, DHEC's
imposition of a punitive fine upon the CNS is improper and unenforceable.
IT IS THEREFORE ORDERED that DHEC shall not impose the fine ordered in DHEC's
Order 96-41-A upon CNS.
IT IS FURTHER ORDERED that any motions or issues raised in the proceedings, but not
addressed in this Order are deemed denied or not meritorious. See ALJD Rule 29(B).
AND IT IS SO ORDERED.
_____________________________________
JOHN D. GEATHERS
Administrative Law Judge
P.O. Box 11667
Columbia, SC 29211-1667
September 5, 1996
Columbia, South Carolina
________________________
Fn1. CNS began removing 900 linear feet of asbestos-containing materials from its facility on
August 29, 1995. CNS notified DHEC of the removal project on September 5, 1995. CNS was
required by state and federal regulations to notify DHEC of the removal project on or before
August 19, 1995.
Fn2. The Supreme Court has defined "coercive fines" as those fines "imposed to induce [federal
facilities] to comply with injunctions or other judicial orders designed to modify behavior
prospectively," and "punitive fines" as those fines "imposed to punish past violations of those
statutes or state laws supplanting them." United States Dep't of Energy v. Ohio, 503 U.S. 607,
613-614 (1992).
Fn3. United States v. Williams, 115 S.Ct. 1611 (1995); United States v. Idaho, 113 S.Ct. 1893
(1993); and Smith v. United States, 113 S.Ct. 178 (1993) contain nothing that contradicts Nordic
Village on the impropriety of using legislative history to define the extent of sovereign immunity
waivers.
Fn4. The pertinent parts of the waivers in the CWA and the RCRA, respectively, provide
Each department, agency, or instrumentality of the . . . Federal Government . . . 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 . . . as any nongovernmental entity . . . . 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 . . . [T]he United States shall be liable only for
those civil penalties arising under Federal law or imposed by a State or local court to
enforce an order or the process of such court.
CWA § 313(a), 33 U.S.C. § 1323(a) (1994). (emphasis added).
... 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) . . . in the same manner, and to the same extent, as any person
is subject to such requirements . . . . 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.
RCRA § 6001, 42 U.S.C. § 6961 (1994). (emphasis added).
Fn5. In October 1992, after the Supreme Court decided DOE v. Ohio, Congress enacted the
Federal Facility Compliance Act ("FFCA"), Public Law 102-386 (October 6, 1992), 106 Stat.
1505, which amended the federal facilities provision in section 6001 of RCRA, 42 U.S.C. § 6961,
to waive sovereign immunity for civil penalties. Congress has thus legislatively overridden DOE
v. Ohio to the extent that the decision addresses federal liability for state-imposed hazardous
waste penalties under RCRA. Congress did not, however, amend the federal facilities provisions
in the CWA or the CAA.
Fn6. The equitable language that appears in the RCRA and CWA respectively. . .
"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 such injunctive relief."
RCRA, § 6001, 42 U.S.C. § 6961. (emphasis added).
". . .the United States shall be liable only for those civil penalties arising under Federal law
or imposed by a State or local court to enforce an order or the process of such court."
CWA, 33 U.S.C. § 1323(a). (emphasis added).
Fn7. The federal district court in Georgia DNR also held that the omission of the coercive
equitable phrases at the conclusion of the CAA was not determinative of a punitive fines waiver. SeeGeorgia DNR, 897 F.Supp. at 1471. |