ELR Citation: ELR 21403
No(s). 97-5715 (6th Cir. Jul 22, 1999)

The court affirms a district court's decision holding that the Clean Air Act's (CAA's) waiver of sovereign immunity allows a state air pollution control board to fine the U.S. Army for violating the Tennessee Air Quality Act. The Army violated the state statute at its ammunition plant by failing to give notice of its intent to remove certain pipes containing asbestos insulation and by failing to comply with asbestos handling rules. The court first holds that CAA §304 clearly effects a waiver of sovereign immunity extending to the civil penalty in question. Further, the court holds although CAA §304(e) is a standard savings clause, it is not dependent on the waiver of sovereign immunity in the CAA's federal facilities provision. The Act states that no other law shall restrict states from obtaining any judicial or administrative remedy or sanction against the United States under the state's air pollution law. In addition, the court holds that Department of Energy v. Ohio, 503 U.S. 607, 22 ELR 20804 (1992), which held that the Federal Water Pollution Control Act's (FWPCA's) sovereign immunity provisions do not allow civil penalties against the United States for past violations, does not apply. The FWPCA contains no counterpart to CAA §304, and unlike the CAA, the FWPCA's federal facilities provision expressly limits state civil penalties against the United States.

Counsel for Plaintiff
Naikang Tsao
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Barry Turner
Attorney General's Office
500 Charlotte Ave., Nashville TN 37243
(615) 741-6474

Before Ryan and Rosen,^* JJ.