ELR Citation: ELR 20211
No(s). 91-1064 (1st Cir. Sep 1, 1992)

The court holds that the United States did not waive its sovereign immunity in either the Resource Conservation and Recovery Act (RCRA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) from civil, punitive penalties, or from fees imposed under Maine law against the U.S. Navy. The court first concludes that U.S. Department of Energy v. Ohio, 22 ELR 20804 (1992), is controlling. In Department of Energy, the Supreme Court held that RCRA does not subject the United States to punitive fines as an enforcement mechanism. The court holds that CERCLA §120(a)(4), like RCRA §6001 in Department of Energy, does not provide an adequately clear waiver of sovereign immunity from the civil penalties sought by Maine. The linguistic distinctions between CERCLA §120(a)(4) and RCRA §6001 do not make a critical difference, because the Supreme Court requires that language waiving sovereign immunity be unequivocal, and CERCLA §120(a)(4) is not. Moreover, the legislative history of CERCLA does not help to distinguish Department of Energy from this case. The court next holds that Congress has not waived sovereign immunity under a federally approved state hazardous waste law from the allegedly unreasonable fees imposed by Maine. Neither RCRA's language subjecting the federal government to all requirements, including permit requirements, nor its legislative history suggests a willingness to have the federal government pay unreasonable state-law fees. The court then denies the Navy's motion for summary judgment on the issue of the unreasonableness of fees, holding that the sparse record before it does not entitle the Navy to judgment on its claim that the state's fees are unreasonably high. Finally, the court holds that Maine cannot recover penalties for the Navy's nonpayment of the fees.

[The district court decision is published at 19 ELR 20614. The appellate briefs are published at ELR Pend. Lit. 66139.]

Counsel for Plaintiffs-Appellees
Dennis J. Harnish, Ass't Attorney General
Attorney General's Office
Statehouse Station No. 6, Augusta, ME 04333
(207) 289-3661

Counsel for Defendants-Appellants
Mary E. Ward, Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000