BEFORE THE POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

U.S. ARMY, FORT LEWIS, WA.,     )

                                                            )

                                    Appellant,         )           PCHB 00-190

                                                            )

            v.                                             )           ORDER GRANTING PARTIAL

                                                            )           SUMMARY JUDGMENT

PUGET SOUND CLEAN AIR            )

AGENCY,                                          )

            )

                                    Respondent.     )

______________________________)

 

I

On March 19, 2001, the U.S. Army, Fort Lewis, WA. (“Army”) filed a motion for summary judgment with the Pollution Control Hearings Board (“board”).  The motion contests the jurisdiction of the board to hear its appeal of the Puget Sound Clean Air Agency’s (“Clean Air”) assessment of a $245,000 civil penalty against the Army.  The Army contends it is immune from penalty under the doctrine of sovereign immunity.   Clean Air filed a cross-motion on the same issue.  This is issue number one from the pre-hearing order.

II

The board hearing this matter is comprised of Robert V. Jensen, presiding officer; James A. Tupper, Jr. and Kaleen Cottingham. 


III

 

Christie L. Vaulx, Captain U.S. Army, attorney, represented the Army.  Laurie S. Halvorson, General Counsel, appeared on behalf of Clean Air. 

IV

The board reviewed the following pleadings and evidence:

1)                  Appellant’s Motion for Summary Judgment;

2)                  Appellant’s Memorandum and Points of Authorities in Support of Appellant’s Motion for Summary Judgment, including Appendices A1-A-23;

 

3)                  Appellant’s proposed Order on Summary Judgment;

 

4)                  Puget Sound Clean Air Agency’s Response to United States Army, Fort Lewis’ Summary Judgment Motion and Agency’s Cross Motion for Summary Judgment, including Affidavits of James L. Nolan and Max D. Scarberry, with attached Exhibits 1-8; and Appendices A-U;

 

5)                  Clean Air’s Proposed Order Granting Summary Judgment; and

 

6)                  Appellant’s Reply to Respondent’s Response to Summary Judgment Motion and Agency’s Cross Motion for Summary Judgment, including Appendices A1 and A2.

 

V

 

            The board, having reviewed the above pleadings and the record, renders the following ruling:

VI

There are no genuine issues of material fact before the board.  Therefore, the board may render summary judgment where the law supports it.  CR 56; WAC 371-08-300. 

VII

            On October 13, 1999, Max Scarberry, an air inspector for Clean Air, along with agency engineer, Margaret Corbin, inspected the Army’s Fort Lewis facility.  They proceeded eventually to Building 3152, to inspect the incinerator there. 

VIII

Clean Air, in 1995, approved Notice of Construction 5779, for the incinerator.  Three officials of Clean Air, including engineer Corbin, signed the agency’s order.  Condition eight of the order prohibits use of the incinerator, unless the temperature in the secondary chamber exceeds 1,400 degrees Fahrenheit (“F”). 

IX

            Mr. Scarberry and Ms. Corbin contacted the operator of the incinerator, Bob Gillies.  They reviewed the logs for the incinerator for the months of July through August 1999.  They discovered numerous violations of condition eight.  The Clean Air officials requested copies be sent to them of the logs for these months. 

X

            Paul T. Steucke, Jr., Chief, Environmental and Natural Resources Division of the Army Division at Fort Lewis, sent Mr. Scarberry a copy of those logs, along with a letter, dated October 25th.  Chief Steucke wrote:

it was discovered the temperature controller attached to the natural gas burners was not set properly.  As a result the burners were not firing when needed.  The controlled [sic] has been fixed and the temperature in the secondary chamber is now being maintained at the required temperature. 

XI

            The incinerator had been in operation for 42 days during the months of July through September.  It had been out of compliance with condition eight all of those days.  No records are available for operation of the incinerator from October 1996 to July 1999.  The records for March and April 1996 show the incinerator to be compliant.  The secondary chamber was not in use from April to October 1996. 

XII

            The Army has a Standard Operating Procedure (“SOP”) for the incinerator.  Section 3.1.2 of the SOP calls for operation of the incinerator in a manner to ensure the secondary chamber is continuously operated at 1,800 to 2,000 degrees F.  The SOP also requires regular inspection, maintenance of the incinerator, and monitoring of the incinerator’s temperature.  Temperatures are to be recorded daily; any abnormal readings are to be addressed immediately, to ensure control of air pollutants.  If any problem occurs, which produces questionable exceedences of air emission standards, the operator is to contact the facility’s Air Quality Control Manager.   

XIII

            Subsequent to a November 4th investigation, which confirmed the above, Clean Air issued Notice of Violation (“NOV”) No. 36494 to the Army.  The notice charged the Army with violating section 7.09(b) (failure to develop and implement an operation and maintenance plan for the incinerator) and section 9.20(b) (failure to operate and maintain equipment for which no NOC application has been approved in good working order, and to meet Order of Approval No. 5779, Condition No. 8).  The Army responded on November 19th and provided additional information to Clean Air on November 22nd.  Mr. Scarberry, on February 8th, requested additional information from the Army.  The Army provided more information on February 22nd. 

XIV

            The new information revealed violations of condition eight on seven additional days in October 1999.  Based thereon, on March 9, 2000, Clean Air issued amended NOV No. 36494 to the Army.  The amended notice included the seven additional violations, and changed the reference to section 9.20(b), to 9.20(a) (failure to operate and maintain equipment, for which a [sic] NOC application has been approved, in good working order). 

XV

            Clean Air issued Civil Penalty No. 9066 to the Army, in the amount of $245,000, for the violations alleged in NOV No. 36494 (amended).  The Army received the penalty on the following day.  The Army timely requested mitigation of the penalty. 

XVI

            Clean Air found no extraordinary circumstances justifying mitigation.  Therefore, on July 28th, it issued Notice of Disposition on Application for Relief regarding Civil Penalty No. 9066, which affirmed the penalty.  Clean Air’s notice clarified although the Army had a plan for operation and maintenance of the incinerator, it was not properly implemented. 


XVII

            The Army moves for summary judgment and vacation of the civil penalty on the grounds that there has been no waiver of sovereign immunity for civil penalties against the federal government under the Clean Air Act (“CAA”).  A waiver of federal sovereign immunity must be unequivocal and be strictly construed in favor of the United States.  United States Department of Energy v. Ohio, 503 U.S. 607, 615 (1992); Lane v. Pena, 518 U.S. 187 (1996).  The applicable provisions of the Clean Air Act meet this standard and constitute a waiver of sovereign immunity for civil penalties by a state administrative agency against federal agencies. 

XVIII

            Clean Air’s civil penalty against the Army is within the type of enforcement action generally envisioned by federal environmental legislation.  Primary enforcement under these acts takes place at the state level.  The CAA, 42 U.S.C. § 740(a)(3).  The states shall have primary responsibility for “assuring air quality within the entire geographic area comprising each State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State.”  Title V, of the 1990 amendments to the Clean Air Act mandates states to implement an operating permit system, which includes the authority to recover civil penalties, in a maximum amount of $10,000 per day per violation, from all sources, including federal facilities.  42 U.S.C. § 7661(a)(b)(5); 40 C.F.R. § 70.11(a)(3).  The amendments gave each state three years from the effective date, to submit to the Environmental Protection Agency (“EPA”) a permit program meeting the requirements of EPA’s regulations and Title V.  42 U.S.C. § 7661(a)(d)(1).  If a state failed to submit a program, or the EPA disapproved a program, the EPA was authorized to impose sanctions.  42 U.S.C. § 7661(a)(d)(2)(A).  The State of Washington adopted RCW 70.94.661 and 662, and amended RCW 70.94.431, to comply with Title V.  The EPA, in 1994, granted interim approval to the Department of Ecology and local air authorities to implement their operating permit program.  59 Fed. Reg. 55813 (1994).  This authorized Washington to begin implementing the operating permit program pending final approval.  40 C.F.R. § 70.4(e)(3).  The EPA later gave final approval to Washington’s program.  66 Fed. Reg. 16 (2001). 

XIX

            The EPA will not approve a state implementation plan (“SIP”) unless the State demonstrates to the EPA the State and its local agencies have adequate funding, personnel and authority to implement and enforce the SIP.  42 U.S.C. § 7410(a)(2)(E).  States failing to meet the national ambient air quality standards (“NAAQ’s”), within required times, may lose federal funds.  42 U.S.C. § 7509. 

XX

            Originally, the Clean Air Act required federal facilities to cooperate with state and local agencies only when practicable and only to the extent cooperation was in the national interest.  See Clean Air Act of 1963, Pub. L. No. 88-206 § 7.  However, voluntary compliance by federal facilities failed to fulfill the objectives of the Act.  Lisa M. Schenck, Let’s Clear the Air: Enforcing Civil Penalties Against Federal Violators of the Clean Air Act, 6 Envtl. Law 839 (2000).  Both the House and Senate noted, when considering the 1970 amendments to the Clean Air Act, “[i]nstead of exercising leadership in controlling or eliminating air pollution, federal agencies [remain] notoriously laggard in abating pollution.”  Hancock v. Train, 426 U.S. 167, 171 (1976) (quoting H.R. Rep No. 91-1146, at 4 (1970), and S. Rep. No. 91-1196, at 37 (1970)). 

XXI

            Congress, in 1970, amended section 118 (42 U.S.C. § 7418) of the Act to impose an affirmative duty upon federal facilities to comply with all federal, state and local air pollution requirements to the same extent as any other person.  See CAA Amendments of 1970, Pub. L. No. 91-604, § 5 (1970); H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977), reprinted in 1977 U.S. Code Congressional & Administrative News 1077, 1277-78.  These 1970 amendments also added the first citizen suit provision, section 304(e).  See CAA Amendments of 1970 § 12(a), 84 Stat. At 1705 (codified as amended at 42 U.S.C. § 7604(a)(1) (1994)). 

XXII

            In 1976, the federal government challenged the 1970 amendments in Hancock, 426 U.S. at 171.  The Supreme Court observed:

Experience with performance by federal sources of air pollution under this voluntary scheme led Congress to conclude that admonishing federal agencies to prevent and control air pollution was inadequate, because, ‘(i) instead of exercising leadership in controlling or eliminating air pollution’ [FN11] ‘Federal agencies have been notoriously laggard in abating pollution.’  Both to provide the leadership to private industry and to abate violations of air pollution standards by federal facilities, in 1970 Congress added § 118 to the clean Air Act.

 


XXIII

 

            The EPA, at the time, did not require federal agencies to apply for state operating permits.  It, instead, encouraged federal agencies to provide the states with the necessary information for the states to assess compliance of pollution sources with emission and discharge standards and limitations, and the need for additional abatement efforts.  Hancock, at 175.  The Court concluded, under these circumstances, section 118 was not a clear and unambiguous declaration by Congress that federal installations must have a state-issued permit to operate.  Hancock, at 179. 

XXIV

            The Court explained section 118 was notable “for what it states in comparison with its predecessor”; however it was also notable for what it does not state.  For example, the Court pointed out, “It does not provide that federal installations ‘shall comply with All federal, state, interstate, and local requirements to the same extent as any other person.”  Hancock, at 182. 

XXV

            Congress responded in 1977 to the Hancock decision, by amending the Clean Air Act to subject federal facilities to substantive and procedural air pollution requirements.  See CAA Amendments of 1977, Pub. L. No. 95-95, § 116(a) (codified at 42 U.S.C. § 7418) Congress additionally amended the Act to ensure nothing in the laws of the United States shall “prohibit, exclude, or restrict” any state or local government from “bringing any enforcement action or obtaining any judicial remedy or sanction [against the federal government] in any [s]tate or local court” or from doing the same “in any [s]tate or local administrative agency, department or instrumentality.”  42 U.S.C. § 7604(e). 

XXVI

            By way of comparison, the pivotal language interpreted by the Supreme Court in Hancock, provided:

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, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.

 

Congress, in response to the Court’s decision in Hancock, amended the language was amended to read:

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 control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity. 

 

XXVII

 

The relevant language of section 304(e), which was part of the 1977 amendments, of the CAA, 42 U.S.C. § 7604(e) provides:

Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate authority from –

 

(1)   bringing any enforcement action or obtaining any judicial remedy or sanction in any State of local court, or

 

(2)   bringing any administrative enforcement action or obtaining any administrative remedy or sanction in any State or local administrative agency, department or instrumentality,

 

against the United States, any department, agency, or instrumentality thereof, or any officer, agent, or employee thereof under State or local law respecting control and abatement of air pollution.  For provisions requiring compliance by the United States, departments, agencies, instrumentalities, officers, agents, and employees in the same manner as nongovernmental entities, see section 7418 of this title. 

 

XXVIII

The statutory structure of the CAA coupled with the 1977 amendments to sections 118 and 304(e)[1] indicate a clear intent to provide states and local governments with the full panoply of administrative remedies for all violators, irrespective of their classification as federal, or otherwise.  The waiver of sovereign immunity for civil penalties is clear and unequivocal under the analysis in Department of Energy v. Ohio, 462 U.S. at 615;  Accord, United States v. Tennessee Air Pollution Control Board, 185 F.3d 529, 533-34 (6th Cir. 1999).

XXIX

The decision of the Court in Department of Energy is not persuasive authority to rule otherwise.  In that appeal the Court was addressing provisions of the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”).  The CWA provisions regarding civil penalties and sovereign immunity are not analogous to the statutory language at issue here.  The same is true of the RCRA provisions addressed by the Court.  Moreover, the RCRA provisions were subsequently amended by Congress to reverse the decision of the Court.  42 U.S.C. § 6961.  House conference Report No. 112-111, 102nd Cong., Sess., reprinted in 1992 U.S. Congressional Code and Administrative news, 1291-92; See Department of Energy v. Ecology, PCHB 00-051 (2001).

XXX

            The provisions of the Clean Air Act expressly and unequivocally waive sovereign immunity for the civil penalty assessed by Clean Air in this matter.  Based on the foregoing ruling, the board enters the following:

ORDER

            The Army’s motion for summary judgment on issue one is denied.  Clean Air’s cross-motion for summary judgment on that issue is granted. 

DONE this 14th day of May 2001.

                                                POLLUTION CONTROL HEARINGS BOARD

                                                            ROBERT V. JENSEN, Presiding

 

                                                            JAMES A. TUPPER, JR., Member

 

                                                            KALEEN COTTINGHAM, Member

P00-190SJ



[1] The Army additionally contends section 304(e) is limited by section 118(a).  Section 304(e) contains the statement: “For provisions requiring compliance by the United States, departments, agencies, instrumentalities, officers, agents, and employees in the same manner as nongovernmental entities, see section 7418 of this title.”  Section 118 does not, however, limit the waiver of sovereign immunity against civil penalties.