ELR Citation: ELR 20079
No(s). 90-1183 (10th Cir. Aug 7, 1992)

The court holds that the United States has not waived its sovereign immunity to authorize the imposition of punitive civil penalties under the Federal Water Pollution Control Act (FWPCA) for a federal facility's violation of a pollution permit issued directly by the U.S. Environmental Protection Agency (EPA). In a citizen suit under §505 of the FWPCA, environmental groups sought injunctive and declaratory relief and civil penalties against the U.S. Department of the Interior (DOI) and the Bureau of Reclamation for past violations of a pollutant discharge permit for the Leadville Tunnel in Lake County, Colorado. The court applies the teachings of the U.S. Supreme Court in U.S. Department of Energy v. Ohio, 22 ELR 20804, which held that the FWPCA authorizes coercive penalties against the United States to enforce an order, but not penalties in the form of punitive fines. The court holds that the FWPCA does not authorize the penalty sought, because it is in the nature of a punitive fine, imposed as punishment for violation of a statutory provision, not a court order. The reference in FWPCA §505 to the United States as a "person" only subjects the United States to suit, but does not suggest a broader waiver of immunity. Further, although FWPCA federal facilities provision §313 suggests that the Act provides for both punitive and coercive civil penalties, the FWPCA civil penalty provision, §309(d)—the only available source of authority to impose punitive fines—does not authorize liability against the United States, because it applies only against "persons," from which the United States is excluded. The FWPCA's waiver for coercive fines is clear, but the waiver for punitive fines is less certain, and the court concludes that any statement of waiver must be unequivocal. That the government violated a permit issued directly by EPA, rather than an EPA-approved state permit, does not change the court's conclusion that Congress did not waive the United States' sovereign immunity and authorize punitive civil penalties against DOI and Bureau of Reclamation for past FWPCA violations.

[Prior decisions in this case are published at 20 ELR 20650 and 21 ELR 20120 and 21195.]

Counsel for Plaintiffs-Appellees
Adam Babich
Cornwell & Blakey
1225 17th St., Ste. 2650, Denver CO 80202
(303) 295-2500

Counsel for Defendants-Appellants
J. Steven Rogers, Jacques B. Gelin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

McKAY, Chief Judge, ALDISERT^* and McWILLIAMS, Circuit Judges.