ELR Citation: ELR 20953
No(s). 89-3329 (6th Cir. Jun 11, 1990)

The court holds that the federal government's sovereign immunity from civil penalties is waived under the Federal Water Pollution Control Act's (FWPCA's) sovereign immunity provision, §313, and the Resource Conservation and Recovery Act's (RCRA's) citizen suit provision, §7002, though not RCRA's sovereign immunity provision, §6001. The court first holds that sovereign immunity from civil penalties is waived under FWPCA §313. Congress enacted §313 in response to a Supreme Court decision holding that the predecessor section did not waive immunity from sanctions such as civil penalties. Although §313 limits its waiver to civil penalties arising under federal law, the state laws authorizing civil penalties in this case are part of the state's water program approved by the U.S. Environmental Protection Agency under the FWPCA. Thus, these state civil penalties arise under federal law. The court next holds that RCRA §6001 does not waive the federal government's sovereign immunity from civil penalties. Although an ordinary reading of §6001 would include civil penalties in the waiver of immunity from "all requirements," the waiver is not clear enough to be recognized. RCRA §6001 does not waive immunity from "sanctions" in addition to "requirements," and explicitly mentions injunctions without mentioning monetary penalties. Finally, the court holds that RCRA §7002 authorizes states to bring citizen suits for civil penalties. States are "persons" who may bring such suits, and §7002 lists the United States as a permissible defendant in such suits. Moreover, §7002 incorporates the civil penalties provisions of §3008(a) and (g). A dissent would hold that the waivers of sovereign immunity in FWPCA §313 and RCRA §7002 are too narrow to support the imposition of civil penalties.

[The district court opinion appears at 18 ELR 20586.]

Counsel for Plaintiffs-Appellees
Jack Van Kley, Ass't Attorney General
Attorney General's Office
30 E. Broad St., Columbus OH 43266-0410
(614) 466-2766

Counsel for Defendant-Appellant
Jacques Gelin
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2762

Before: MARTIN, JONES, and GUY, Circuit Judges.