UNITED STATES DEPARTMENT OF ENERGY, PETITIONER V. STATE OF OHIO, ET AL. No. 90-1341 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, on behalf of the United States Department of Energy, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit PARTIES TO THE PROCEEDINGS In addition to the parties named in the caption, the Attorney General of the State of Ohio was a plaintiff in the district court and appellee in the court of appeals. TABLE OF CONTENTS Questions Presented Parties To The Proceedings Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The decision of the court of appeals (App., infra, 1a-27a) is reported at 904 F.2d 1058. The decision of the district court (App., infra, 28a-46a) is reported at 689 F. Supp. 760. JURISDICTION The judgment of the court of appeals was entered on June 11, 1990. A petition for rehearing was denied on October 10, 1990. On December 28, 1990, Justice Stevens extended the time for filing a petition for a writ of certiorari to February 7, 1991. On January 30, 1991, Justice Stevens further extended the time for filing a petition to and including February 22, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Sections 313(a) and 505(a) of the Clean Water Act (CWA), 33 U.S.C. 1323(a), 1365(a), are reproduced at App., infra, 49a-52a. Sections 6001 and 7002(a) of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6961, 6972, are reproduced at App., infra, 52a-54a. Sections 3724.13 (C) and 6111.09 of the Ohio Revised Code are reproduced at App., infra, 54a-55a. QUESTIONS PRESENTED 1. Whether Section 313 of the Clean Water Act, 33 U.S.C. 1323, waives the sovereign immunity of the United States from assessment of civil penalties for violation of state water pollution control laws. 2. Whether Section 7002 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6972, waives the sovereign immunity of the United States from assessment of federal civil penalties for violation of RCRA. STATEMENT This case raises the question whether certain provisions of the CWA, 33 U.S.C. 1251 et seq., and RCRA, 42 U.S.C. 6901 et seq., waive federal sovereign immunity from civil penalties assessed pursuant to civil penalty provisions of state water pollution control statutes and pursuant to the civil penalty provisions of RCRA itself. 1. a. Section 301(a) of the CWA, 33 U.S.C. 1311(a), prohibits the discharge of pollutants into navigable waters of the United States except pursuant to a permit issued under Section 402 of the Act, 33 U.S.C. 1342. To implement Section 301(a)'s conditional prohibition, the EPA Administrator is directed to establish effluent limitations and standards of performance for "point sources" of pollution. CWA Sections 304, 306 and 307, 33 U.S.C. 1314, 1316, and 1317. Through the National Pollutant Discharge Elimination System (NPDES), established pursuant to Section 402 of the CWA, these standards and limitations, together with any limitations based on state law, are incorporated into individual NPDES discharge permits. See generally EPA v. California, 426 U.S. 200, 202-209 (1976). Once an NPDES permit is issued, "(c)ompliance with a permit * * * shall be deemed compliance" with most of the requirements of the CWA. CWA Section 402(k), 33 U.S.C. 1342(k); EPA v. California, 426 U.S. at 205 ("(i)n short, the permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under" the Act). Although CWA Section 402(a) gives the EPA authority to issue NPDES permits in the first instance, CWA Section 402(b) provides that a State may administer its own permit program in lieu of the federal program if EPA determines that such a state program meets certain minimum standards specified in that Section. /1/ Among those standards is the requirement that the state program must provide "adequate authority * * * (t)o abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement." CWA Section 402(b)(7), 33 U.S.C. 1342(b)(7). When EPA approves a state program, the issuance of permits and the administration of the NPDES program become a state function. See CWA Section 402(c), 33 U.S.C. 1342(c). The State, however, must still notify EPA of applications for and approvals of permits. CWA Section 402(d)(1), 33 U.S.C. 1342(d)(1). After an approved state program has begun to function, EPA generally retains authority to object to the issuance of particular permits (CWA Section 402(d)(2), 33 U.S.C. 1342(d)(2)), to monitor the state program to ensure that it continues to meet federal minimum standards (CWA Section 402(c), 33 U.S.C. 1342(c)), and, after notification to the State, to enforce the terms of state-issued permits if the State has failed to institute enforcement actions of its own. CWA Section 309(a), 33 U.S.C. 1319(a). b. Two provisions in the CWA address federal amenability to suit. The State asserted in this litigation that each of those provisions constitutes an independent basis for claiming civil penalties against the federal government. i. The federal facilities provision of the CWA, Section 313(a), 33 U.S.C. 1323(a), provides that federal facilities "shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity * * *." Section 313(a) then adds that the above sentence "shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner." /2/ Section 313(a) further provides, however, that "the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court." According to the State, the above provision generally waives federal sovereign immunity from assessment of civil penalties for violation of state water pollution statutes, provided that the civil penalties meet the requirement of the proviso -- i.e., that they "aris(e) under Federal law." Under Ohio Rev. Code Ann. Section 6111.09 (Anderson Supp. 1987), "(a)ny person who violates (state water pollution regulations) shall pay a civil penalty of not more than ten thousand dollars per day of violation, to be paid into the state treasury to the credit of the general revenue fund." /3/ The State asserts that this civil penalty provision can be said to "arise under" federal law, since it is part of the EPA-approved Ohio permit program. The State argues that the CWA federal facilities provision therefore waives federal sovereign immunity from assessment of civil penalties payable to the state treasury under Ohio Rev. Code Section 6111.09. ii. In addition to the federal facilities provision, the CWA's citizen suit provision, Section 505(a), 33 U.S.C. 1365(a), also addresses federal amenability to suit. See generally Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987). Under Section 505(a), "any citizen may commence a civil action * * * against any person (including * * * the United States)" to enforce an effluent standard or limitation," which is defined by CWA Section 505(f), 33 U.S.C. 1365(f), to include an NPDES permit, whether issued under federal or state law. The citizen suit provision thus includes the federal government among those entities that can be defendants in CWA citizen suits. Section 505(a) further provides that district courts shall have jurisdiction in such citizen suits to require compliance with an NPDES permit and to apply "any appropriate civil penalties" under the CWA's civil penalties provision, Section 309(d), 33 U.S.C. 1319(d). Section 309(d) itself provides for civil penalties payable to the United States for violations by any "person" -- a term defined in CWA Section 502(5), 33 U.S.C. 1362(5), to refer to a list of entities that does not include the federal government. The State asserts that CWA civil penalties against the federal government are "appropriate" under the citizen suit provision. CWA civil penalties may range up to $25,000 per day for each violation. CWA Section 309(d), 33 U.S.C. 1319(d). Like any federal civil penalties and unlike the state penalties sought under the CWA's federal facilities provision, such federal civil penalties must be deposited into the federal treasury. See 31 U.S.C. 3302(b). 2. a. Originally enacted on October 21, 1976, RCRA, 42 U.S.C. 6901 et seq., was the first federal effort to address the problem of solid waste generally, and hazardous waste specifically. In Subtitle C, 42 U.S.C. 6921 et seq., RCRA creates a "cradle-to-grave" management system intended to ensure that hazardous wastes are safely treated, stored, and disposed of. Section 3004 of RCRA requires EPA to promulgate regulations establishing performance standards applicable to owners and operators of new and existing treatment, storage, or disposal facilities as may be necessary to protect health and the environment. 42 U.S.C. 6924. RCRA's permit system is administered in relevant respects much like that created by the CWA. Section 3005 of RCRA requires any facility that treats, stores, or disposes of hazardous waste to obtain a permit. 42 U.S.C. 6925. Section 3005(c) authorizes EPA or a State to issue such a permit only upon determining that the facility is in compliance with the standards promulgated by EPA under Section 3004. The statute provides that a State may issue and enforce hazardous waste management permits after it has applied to EPA to administer a hazardous waste program "in lieu of the Federal program," and EPA has authorized the program on the ground that it "is equivalent to the Federal program" and provides "adequate enforcement" of RCRA's requirements. RCRA Section 3006(b), 42 U.S.C. 6926(b). A State may obtain interim EPA authorization for its hazardous waste program if the program is found to be "substantially equivalent" to the federal program. /4/ Even after an approved state program has begun to function, EPA generally retains authority to monitor the state program to ensure that it continues to meet federal minimum standards (RCRA Section 3006(e), 42 U.S.C. 6926(e)) and to enforce the terms of state-issued permits after notifying the State if the State has failed to institute enforcement actions of its own. RCRA Section 3008(a), 42 U.SC. 6928(a). b. Two provisions in RCRA address federal amenability to suit for violation of hazardous waste regulations. As with the CWA, the State asserted in this litigation that each of those provisions constitutes an independent basis for claiming civil penalties against the federal government. i. The federal facilities provision of RCRA, Section 6001, 42 U.S.C. 6961, contains somewhat different language from the corresponding CWA provision. RCRA Section 6001 provides that facilities operated by the federal government "shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting the control and abatement of hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements." The State asserts that this provision simply waives federal sovereign immunity from assessment of civil penalties for hazardous waste violations, with no requirement that such civil penalties must "aris(e) under Federal law," as in the CWA. Ohio Rev. Code Section 3734.13(C) provides that the state attorney general may bring an action for any violation of the state hazardous waste statutes and that in such an action "(t)he court may impose * * * a civil penalty of not more than ten thousand dollars for each day of each violation. * * * Moneys resulting from civil penalties imposed under (this provision) shall be paid into the hazardous waste clean-up fund" created elsewhere in the statute. 1985 Ohio Laws 2295. Therefore, the State argues, the RCRA federal facilities provision waives federal sovereign immunity from assessment of civil penalties payable to the state hazardous waste clean-up fund under Ohio Rev. Code Section 3734.13. ii. RCRA's citizen suit and civil penalties provisions are very similar to the corresponding CWA provisions. Under RCRA's citizen suit provision, Section 7002(a), 42 U.S.C. 6972(a), "any person may commence a civil action * * * against any person (including * * * the United States * * *)" to enforce a "permit, standard, regulation, condition, requirement, prohibition, or order" under RCRA. Section 7002(a) further provides that district courts shall have jurisdiction in such citizen suits to require compliance with RCRA and to apply "any appropriate civil penalties" under RCRA's civil penalties provision, Section 3008(g), 42 U.S.C. 6928(g). Section 3008(g) itself provides for civil penalties payable "to the United States" for violations by any "person" -- a term defined in RCRA Section 1004(15), 42 U.S.C. 6903(15), to refer to a list of entities that does not include the federal government. The State asserts that civil penalties against the federal government are "appropriate" under the citizen suit provision. Such civil penalties may range up to $25,000 per day for each violation. RCRA Section 3008(g), 42 U.S.C. 6928(g). 3. In this case, the State of Ohio filed suit in federal district court against DOE, the Secretary of Energy, and DOE's former private contractor, alleging that defendants had improperly treated, stored, and disposed of hazardous wastes and had improperly discharged pollutants and contaminants into waters at DOE's uranium processing plant in Fernald, Ohio. The State, relying on RCRA, the CWA, and state environmental laws, sought, inter alia, injunctive relief and civil penalties against DOE under both state and federal law. /5/ In the district court, the United States moved to dismiss all claims for civil penalties as barred by the federal government's sovereign immunity. The court denied the motion, holding that federal sovereign immunity was waived under RCRA and the CWA as to both federal and state penalties. Ohio v. United States Dep't of Energy, 689 F. Supp. 760 (S.D. Ohio 1988). The parties subsequently entered into a consent decree settling the injunctive relief claims. See App., infra, 29a. C.A. App. 106-136. As part of the overall settlement, the parties stipulated (C.A. App. 137-142) to the amount of civil penalties to be paid -- a potential total of $125,000 for water pollution violations and $125,000 for hazardous waste violations -- if the United States does not prevail on appeal. The district court certified (C.A. App. 105) an interlocutory appeal of the civil penalties issue under 28 U.S.C. 1292(b), and the Sixth Circuit granted the unopposed petition of the United States for permission to appeal. C.A. App. 157. 4. A divided panel of the Sixth Circuit affirmed the district court in part, holding that the federal facilities provision of the CWA does waive federal sovereign immunity from civil penalties assessed under Ohio Rev. Code Section 6111.09 and payable to the state treasury, that the federal facilities provision of RCRA does not waive federal sovereign immunity from civil penalties under Ohio Rev. Code Section 3734.13 (C), and that the citizen suit provision of RCRA does waive federal sovereign immunity from civil penalties payable to the federal treasury under RCRA's own civil penalties provision. The court did not reach the State's contention that the citizen suit provision of the CWA, like the citizen suit provision of RCRA, waives federal sovereign immunity from civil penalties under federal law. /6/ a. With respect to the CWA, the court found that sovereign immunity was waived by Section 313 for penalties "arising under federal law." App., infra, 4a-6a. The court then addressed the question whether immunity for civil penalties under Ohio Rev. Code Section 6111.09 was waived and found that immunity from such state civil penalties was waived because they "arise under" federal law. The panel reasoned (App., infra, 7a): Once a state water pollution law is approved, compliance with the state law is compliance with the Clean Water Act. 33 U.S.C. Section 1342(k). Thus, under the terms of the Clean Water Act, a qualifying state water pollution law, including its civil penalties, arises under federal law. Judge Guy dissented as to the panel's holdings concerning both the CWA and RCRA. App., infra, 16a-27a. With respect to the CWA, he agreed with the majority (App., infra, 19a-20a) that the federal facilities provision of the CWA, Section 313(a), waives sovereign immunity for civil penalties arising under federal -- but not state -- law. However, in determining which civil penalties arise under federal law, Judge Guy agreed with the Ninth Circuit's decision in California v. Department of the Navy, 845 F.2d 222 (1988), that a state's EPA-approved permit program and penalties assessed thereunder do not "arise under Federal law." App., infra, 22a-24a. He based this conclusion on the explicit statutory recognition that a state "administer(s) its own permit program * * * upon approval of the program by (the) EPA." App., infra, 22a (quoting 33 U.S.C. 1342(b) (emphasis supplied)). He also relied on statements in the statute's legislative history that state permit programs "function() in lieu of the Federal program." App., infra, 23a (quoting H.R. Rep. No. 830, 95th Cong., 1st Sess. 104 (1977)). b. With respect to RCRA, the court unanimously rejected the district court's conclusion that the federal facilities provision waives the federal government's sovereign immunity from state or federal civil penalties. App., infra, 9a-12a, 17a n.1 (Guy, J., dissenting). The court held that Congress did not waive sovereign immunity from state or federal civil penalties under the federal facilities provision of the Act, RCRA Section 6001, 42 U.S.C. 6961, because, unlike the CWA, RCRA does not specifically mention "sanctions" in its waiver provision. The court also observed that although RCRA Section 6001, 42 U.S.C. 6961, explicitly discusses injunctive relief twice, it never mentions monetary relief or civil penalties. In holding that any waiver of sovereign immunity from civil penalties in Section 6001 "is not stated clearly enough to be recognized" (App., infra, 10a), the Sixth Circuit agreed with the Ninth Circuit in United States v. Washington, 872 F.2d 874 (1989), and the Tenth Circuit in Mitzelfelt v. Department of Air Force, 903 F.2d 1293 (1990). The panel majority did, however, find that RCRA's citizen suit provision constituted a waiver of federal immunity from civil penalties assessed under RCRA's own civil penalties provision. /7/ The majority stated (App., infra, 15a) that the "fairest reading" of RCRA Section 7002, 42 U.S.C. 6972, subjects the United States to the application of "appropriate" civil penalties because it generally authorizes suits against the United States. The court rejected (App., infra, 14a-15a) the United States' argument that, although civil penalties are "appropriate" against other entities, they are never "appropriate" when levied against the federal government. In addition, the majority stated, RCRA's legislative history demonstrates that Congress intended to subject the United States to civil penalties in citizen suits. Id. at 15a-16a. Judge Guy disagreed with the majority's conclusion that the citizen suit provision of RCRA authorizes civil penalties against the United States. Judge Guy found that, under the citizen suit provision's express language, "judicial authority to impose civil penalties in response to RCRA citizen suits is limited to sanctions permitted under 42 U.S.C. Sections 6928(a) and (g)." App., infra, 25a. Because the United States is excluded from RCRA's general definition of "person(s)" against whom civil penalties may be levied under those Sections, the reference in the citizen suit provision to those Sections precludes assessment of civil penalties against the United States. App., infra, 25a-26a. He also noted that the exclusion of the United States from those entities subject to civil penalties is "entirely logical" because the penalties assessed under RCRA are payable "to the United States." App., infra, 26a n.4 (quoting 42 U.S.C. 6928(g)). He concluded that RCRA waives sovereign immunity only to the extent that it permits states to seek declaratory and injunctive relief. App., infra, 26a. REASONS FOR GRANTING THE PETITION 1. Under settled legal principles, a waiver of sovereign immunity by the federal government must be unequivocally expressed and may not be implied, assumed, or based on speculation or ambiguity. Block v. North Dakota, 461 U.S. 273, 280 (1983); United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. King, 395 U.S. 1, 4 (1969). Any asserted waiver of the United States' immunity to suit -- especially in matters affecting the federal fisc, see Lehman v. Nakshian, 453 U.S. 156, 161 & n.8 (1981) -- must be construed "strictly in favor of the sovereign" and "not enlarge(d) * * * beyond what the language requires." Library of Congress v. Shaw, 478 U.S. 310, 318 (1986) (citation omitted); accord United States v. Sherwood, 312 U.S. 584, 590 (1941). As in other contexts, asserted waivers of sovereign immunity in federal environmental statutes must be "clear and unambiguous." Hancock v. Train, 426 U.S. 167, 179 (1976); EPA v. California, 426 U.S. 200, 211 (1976). In Missouri Pac. R.R. v. Ault, 256 U.S. 554 (1921), the Court held that a statute waiving sovereign immunity in terms similar to those in the CWA and RCRA was insufficient to waive federal immunity to fines and penalties. The statute at issue provided that rail carriers "while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law." 256 U.S. at 558. Justice Brandeis, writing for a unanimous Court, noted that "the element of punishment clearly predominates" with respect to the penalties sought (256 U.S. at 565) and consequently held that -- notwithstanding the general terms used in the statute -- "Congress has not given its consent that suits of this character be brought against the United States." Ibid. 2. The Sixth Circuit departed from these settled principles in holding that Congress has waived federal sovereign immunity from civil penalties payable to the State in the CWA and has waived federal sovereign immunity from payment of civil penalties to the federal treasury in RCRA. The Sixth Circuit's decision with respect to the CWA directly conflicts with the decision of the Ninth Circuit in California v. Department of the Navy, 845 F.2d 222 (1988), thus creating an inconsistent regime in which the ability of a State to obtain civil penalties from the federal government depends on the accident of its location. Such inconsistency has the potential to skew incentives for both the States and the federal government. It can encourage efforts by "favored" States to obtain federal funds through civil penalties not available to other States. At the same time, it will tend to press the federal government to direct resources available for environmental clean-up efforts to sites in States with the greatest potential threat of civil penalties, rather than to those sites that most urgently require action. The Sixth Circuit similarly erred in holding that, although Congress did not waive federal sovereign immunity from civil penalties in the RCRA provision that specifically addresses federal facilities, it did do so -- at least as to penalties assessed under federal law -- in the provision generally authorizing citizen suits against public or private entities. That holding once again departs from settled legal principles requiring narrow construction of waivers of sovereign immunity. Although no other court of appeals has addressed the particular question whether the RCRA citizen suit provision constitutes a waiver of sovereign immunity from civil penalties, the Sixth Circuit's result differs from the result reached by the Ninth and Tenth Circuit in holdings that civil penalties are not available under the federal facilities provision of RCRA. Moreover, the Sixth Circuit's holding that the federal government must pay civil penalties to itself is illogical and unsupported by RCRA's legislative history. As with the CWA, adding civil penalties to the concededly proper injunctive remedies that Congress has authorized threatens to impede the federal government's ability to advance environmental compliance and cleanup efforts in a rational manner by allocating resources on the basis of environmental needs, rather than on the basis of which state has the most active litigants. In short, this case presents closely related issues that arise under similar, but not identical, federal environmental statutes. /8/ The amenability of the federal government to civil penalties under both statutes has been extensively litigated in the lower federal courts, resulting in a direct circuit conflict with repect to the CWA and a disparate array of district court decisions with respect to both statutes. The court of appeals erred in failing to recognize that the language of both statutes most reasonably can -- and therefore, in light of settled principles of sovereign immunity, should -- be read to reflect a congressional intent to subject the federal government to judicial enforcement of the statutes by means of prospective, injunctive relief, but not to penalize the federal government by imposition of civil penalties for past failures. Because both the federal government and the States have a substantial interest in uniform nationwide standards governing federal liability for civil penalties in environmental litigation, review of the Sixth Circuit's decision by this Court is warranted. 3. CWA. The court of appeals made two distinct errors in concluding that the federal facilities provision of the CWA waives federal sovereign immunity from state-law civil penalties. First, the court began its analysis by mistakenly holding that the federal facilities provision, which concededly waives federal sovereign immunity for some purposes, supplies a sufficiently clear waiver of federal sovereign immunity from civil penalties. Second, the court compounded its error by holding, in square conflict with California v. Department of the Navy, 845 F.2d 222 (9th Cir. 1988), that "practically speaking, actions under a qualifying state water pollution law arise under federal law" (App., infra, 7a) and therefore satisfy the "arising under Federal law" requirement of the federal facilities provision. a. Section 313(a) of the CWA does not in "clear and unambiguous" (Hancock v Train, 426 U.S. at 179) terms waive the federal government's sovereign immunity from civil penalties. The first sentence of the provision refers to three types of regulation to which federal facilities are subject: "all * * * requirements," "administrative authority," and "process and sanctions." The second sentence elaborates on each of these categories, to make clear that "requirements refers to "any requirement whether substantive or procedural"; that "administrative authority" includes such authority exercised by any level of government; and that "process and sanctions" refers to "any process and sanctions whether enforced in Federal, State, or local courts or in any other manner." Nowhere in this explication of the statute's terms is any mention made of either "civil penalties" or "penalties." The court of appeals' interpretation of the above language blurs the three distinct statutory categories The court held that Section 313(a) subjects federal facilities to "'any requirement,' including 'sanctions,'" /9/ and goes on to "specifically state() that sovereign immunity is waived for any sanction." App, infra, 4a-5a. Yet the statute demonstrably does not include "sanctions" among "requirements"; the waiver as to "requirements" is in a threefold list that includes "sanctions" in a distinct and coordinate category. Furthermore, "sanctions" are not themselves a separate statutory category. Rather, the term "sanction" is used twice in the statute, each time coupled in the phrase "process and sanctions" (or "any process and sanction"). Thus, the clear import of the statutory language is that "process and sanctions" is a single category, coordinate to "requirements," as to which Congress intended to waive sovereign immunity. Neither "requirements" nor "process and sanctions" are readily understood to include civil penalties. The term "all requirements" is most naturally read to refer to regulations that govern the primary conduct of those who operate federal facilities, not to civil or criminal penalties to be imposed when the federal facilities cannot or do not comply with those requirements. /10/ See Mitzelfelt v. Department of Air Force, 903 F.2d 1293, 1295 (10th Cir. 1990) (interpreting RCRA); California v. Walters, 751 F.2d 977, 978 (9th Cir. 1984) (same). Similarly, the term "process and sanctions" has a tolerably clear legal meaning, referring to judicial procedures and mechanisms by which courts protect their jurisdiction and compel compliance with equitable decrees. By waiving sovereign immunity for "process and sanctions" Congress clearly intended to subject federal facilities to judicial process, including sanctions to compel compliance with judicial process. There is no reason to believe, however, that Congress intended as well to take the extraordinary step of subjecting the federal government to civil penalties payable to a "subordinate sovereign" and decreed by that sovereign's laws. Hancock v. Train, 426 U.S. at 179. And, in any event, no such intent is unambiguously stated. b. As the court of appeals correctly stated, the proviso to Section 313(a) "explicitly limits (Section 313(a)'s) waiver of sovereign immunity for civil penalties to those 'arising under federal law.'" App., infra, 6a. /11/ In this case, the State of Ohio relied on a state statute, Ohio Rev. Code Ann. Section 6111.09 (Anderson 1987), as authority for the imposition of civil penalties on the United States payable to the state treasury. Because civil penalties assessed under Ohio Rev. Code Section 6111.09 do not in any sense arise under federal law, the Sixth Circuit's holding that Section 313(a) waives federal sovereign immunity as to such civil penalties is erroneous. i. The court of appeals' holding is in direct conflict with the holding of the Ninth Circuit in California v. Department of the Navy, 845 F.2d 222, 225 (9th Cir. 1988). /12/ In California, as here, the State sought to impose civil penalties pursuant to state law on a federal facility that had allegedly violated a state water pollution discharge permit. 845 F.2d at 223. As in this case, the state permit program had been approved by the EPA, and the State pointed out that such approval is conditioned in part on a showing that the State had adequate authority "to abate violations of the permit program, including civil and criminal penalties" under CWA Section 402(b)(7), 33 U.S.C. 1342(b)(7). See 845 F.2d at 225. As here, the State argued that, in light of the EPA approval, the state civil penalty provisions could be said to arise under federal law for purposes of the Section 313(a) proviso. The Ninth Circuit squarely rejected the State's argument as "neither supported by the structure of the CWA nor its legislative history." 845 F.2d at 225. The court noted that the language of the CWA itself refers to the fact that an approved state permit program is administered under state law. 845 F.2d at 225. For example, CWA Section 402(b), 33 U.S.C. 1342(b), requires a State seeking EPA approval of a state permit program to submit "a full and complete description of the program it proposes to establish and administer under State law" (emphasis added). /13/ The Ninth Circuit also noted that the CWA's legislative history "clearly states that state permit programs are 'not a delegation of Federal authority,' but instead are state programs which 'function() in lieu of the Federal program." 845 F.2d at 225 (quoting H.R. Rep. No. 830, 95th Cong., 1st Sess. 104 (1977). /14/ Because the State's argument would "essentially nullify Section 313(a)'s express limitation of civil penalties against federal agencies to those arising under federal law" (845 F.2d at 225), the Ninth Circuit "decline(d) the invitation to find a Congressional waiver of sovereign immunity without finding the requisite explicit Congressional intent." Ibid. In arriving at its contrary conclusion, the majority in this case did not mention or attempt to distinguish the Ninth Circuit's decision in California v. Department of the Navy. /15/ ii. The Sixth Circuit's holding that civil penalties assessed under state law arise under federal law is mistaken. The complaint in this case sought an order that the United States shall "pursuant to Ohio Revised Code Section 6111.09 * * * pay into the (Ohio) treasury a civil penalty for each violation of Ohio Revised Code Chapter 6111." C.A. App. 52. Moreover, the section of the complaint entitled "Jurisdiction" alleged that "(t)he Court has pendent jurisdiction over the claims asserted under the laws of the State of Ohio." C.A. App. 10. /16/ These allegations reflected the State's own recognition that the state civil penalties at issue arise under state law. /17/ Moreover, the law governing the assessment of civil penalties in this case is entirely state law. The question whether penalties should be assessed and, if so, in what amount and to whom they are to be paid are solely questions of state law. /18/ Cf. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199 (1921); see also American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) ("A suit arises under the law that creates the cause of action."). Because the Ohio legislature, not the United States Congress, enacted the statute that creates the right to civil penalties at issue here, that right arises under Ohio, not federal, law. In concluding that civil penalties assessed under Ohio Rev. Code Section 6111.09 arise under federal law, the Sixth Circuit relied heavily (App., infra, 6a-8a) on the fact that state permit programs must be reviewed and approved by EPA in accordance with federal minimum standards before they are allowed to supplant the EPA permit program. But EPA approval of a state scheme cannot convert civil penalties assessed under that scheme into penalties that arise under federal law. Because entities in Ohio are generally required under state law to comply with the state statutory scheme regardless of whether the scheme receives EPA approval, such approval does not alter any obligations imposed under state law. Although EPA approval does eliminate the need for Ohio entities to obtain federal, as well as state, permits, that effect merely demonstrates that Congress chose to limit -- not expand -- the role of federal law where state law adequately protects against water pollution. At most, it could be argued that the federal statute is ambiguous concerning whether penalties imposed under a federally approved state program should be considered penalties arising "under federal law." But it is fundamental that any such ambiguity must be resolved against, rather than in favor of, a waiver of sovereign immunity (see pp. 15-16, supra). 4. RCRA Aside from a single district court decision now pending appeal, every court that has addressed the issue has agreed with the Sixth Circuit's holding that the federal facilities provision of RCRA, Section 6001, 42 U.S.C. 6961, does not waive federal sovereign immunity from civil penalties. See United States v. Washington, 872 F.2d 874 (9th Cir. 1989); Mitzelfelt v. Department of Air Force, 903 F.2d 1293 (10th Cir. 1990); McClellan Ecological Seepage Situation (MESS) v. Weinberger, 655 F. Supp. 601 (E.D. Cal. 1986); Florida Dep't of Envtl. Regulation v. Silvex Corp., 606 F. Supp. 159 (M.D. Fla. 1985); Meyer v. United States Coast Guard, 644 F. Supp. 221 (E.D.N.C. 1986); cf. California v. Walters, 751 F.2d 977 (9th Cir. 1984) (criminal penalties). But see Maine v. Department of the Navy, 702 F. Supp. 322 (D. Me. 1988), appeal pending, No. 86-0211P (1st Cir.). /19/ That conclusion follows from the language of RCRA Section 6001, which differs from the language of CWA Section 313(a) in making explicit that the "sanctions" as to which immunity is waived are "such sanctions as may be imposed by a court to enforce (injunctive) relief," and in omitting any express reference whatever -- even in a limiting proviso -- to civil penalties. As the court of appeals recognized, the differences between CWA Section 313(a) and RCRA Section 6961 reinforce the conclusion that no waiver as to civil penalties was intended in the latter provision. See App., infra, 11a-12a. The Sixth Circuit erred, however, in holding that Congress waived federal sovereign immunity from civil penalties in RCRA's citizen suit provision, Section 7002(a), 42 U.S.C. 6972(a). The key statutory language on which the court relied was that which includes "the United States" among the entities that are subject to suit, which is coupled with the provision that, in addition to enjoining violations and ordering compliance, "(t)he district court shall have jurisdiction * * * to apply any appropriate civil penalties under section 6928(a) and (g) (the civil penalty provisions) of this title." Relying primarily on statements in the legislative history of RCRA (see App., infra, 15a) and the "underlying congressional policy * * * to eliminate the unsafe disposal of hazardous wastes" by federal facilities (App., infra, 15a-16a), the Sixth Circuit held that "(t)he fairest reading" of the above language "includes the United States in the application of civil penalties." App., infra, 15a. The Sixth Circuit's conclusion that Congress intended to waive federal sovereign immunity from civil penalties in the citizen suit provision is mistaken. The word "appropriate" qualifies the phrase "civil penalties under (RCRA Section 3008(g), 42 U.S.C. 6928(g))." /20/ By including that qualification, Congress plainly intended to limit the applicability of such penalties, not to expand the number of entities otherwise subject to them. RCRA Section 3008(g), 42 U.S.C. 6928(g), authorizes civil penalties against "(a)ny person who violates any requirement" of RCRA. Since the United States is not a "person" for purposes of RCRA (see RCRA Section 1004(15), 42 U.S.C. 6903(15)), it is never "appropriate" to assess civil penalties against the United States under RCRA Section 3008(g). Therefore, although the citizen suit provision plainly authorizes civil penalties where "appropriate" -- i.e., against parties other than the federal government who meet the other requirements for such penalties -- it equally plainly prohibits such penalties where not "appropriate" -- i.e, against federal defendants. Even if the language of the statute were less clear, the Sixth Circuit's conclusion would be implausible. Initially, it would have been illogical for Congress to refrain from waiving federal sovereign immunity from civil penalties in the federal facilities provision of the Act -- the provision specifically addressing the extent to which the federal government is subject to RCRA -- but then to undo the limitations of its carefully-crafted waiver of sovereign immunity in the more broadly applicable citizen suit provision. Moreover, the civil penalties available under the citizen suit provision in a suit against any entity -- state, local, or private -- are those assessed under RCRA's civil penalty provisions; therefore, they are necessarily federal civil penalties payable to the federal treasury. The civil penalties that the State seeks would consequently simply be transferred from one account in the federal treasury to another; surely it should not be assumed absent some more explicit statement that Congress thus intended such a shift in funds amongst Treasury accounts through a procedure outside congressional control. /21/ The majority's bald assertion that the "fairest reading" of Section 6972 includes the United States in the application of civil penalties misapprehends the most plausible reading of the statute and disregards controlling principles of statutory interpretation regarding waivers of sovereign immunity by resolving a statutory ambiguity in favor of a waiver. Because the Sixth Circuit's decision also threatens to upset the careful balance Congress drew with respect to environmental litigation concerning federal facilities, and because the related RCRA and CWA issues in this case are profitably considered together, review by this Court is warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General RICHARD B. STEWART Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General ROBERT L. KLARQUIST JACQUES B. GELIN Attorneys FEBRUARY 1991 /1/ The respondent State of Ohio obtained such EPA approval on January 14, 1983. 48 Fed. Reg. 5918 (1983). /2/ Section 313(a) also adds that "(t)his subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law." /3/ All references to Ohio Rev. Code Section 6111.09 and to the penalty provision of the state hazardous waste act, Ohio Rev. Code Section 3734.13(C), are to those provisions as they were when this lawsuit was filed. Although both provisions have since been amended, the changes are not significant for purposes of this case. /4/ Ohio received interim authorization for its program on (July 15, 1983). 48 Fed. Reg. 32,345 (1983). However, EPA withdrew that authorization on January 31, 1986. 51 Fed. Reg. 4128 (1986). /5/ The State's complaint also contained two claims based on the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq. Pursuant to the settlement agreement between the parties discussed below, one of the CERCLA claims was dismissed and the other was stayed. App., infra, 29a; C.A. App. 127. /6/ The court of appeals held that it "need not consider" the State's "alternative argument" based on the CWA's citizen suit provision, (App., infra, 8a), although the district court had reached that issue and held that the CWA citizen suit provision waived federal sovereign immunity from civil penalties assessed under the CWA itself (App., infra, 42a-43a). Although the court of appeals did not elaborate on its reasons for not reaching this issue, the stipulation between the parties deprived the controversy over federal penalties of any significance once the court of appeals had decided that the federal government was liable for civil penalties under state law. The stipulation provided for payment of a maximum of $125,000 in CWA civil penalties under either state or federal law. C.A. App. 139. It also expressly provided for payment in that amount to the state treasury if state penalties were held permissible (C.A. App. 140-141), and to the federal treasury if state penalties were held impermissible but federal penalties were held permissible (C.A. App. 141). Thus, once it was determined that state penalties were permissible, the stipulation rendered it unnecessary to consider whether federal penalties were permissible as well. We note, however, that the RCRA citizen suit and penalty provisions are quite similar in relevant respects to those of the CWA. Accordingly, resolution of the question whether the RCRA citizen suit provision waives federal sovereign immunity from civil penalties (the second question presented in this petition) would provide substantial guidance in resolving the corresponding issue under the CWA. /7/ In Washington, the Ninth Circuit declined to rule on whether the citizen suit provision of RCRA constituted a waiver of sovereign immunity, explaining that the issue was not properly before the court. 872 F.2d at 880-881. The issue also was not raised or decided in Mitzelfelt. /8/ In addition, provisions that correspond to the citizen suit and federal facilities provisions of the CWA and RCRA can be found in the Safe Drinking Water Act, 42 U.S.C. 300j-8 (citizen suit), 42 U.S.C. 300j-6 (federal facilities), and the Clean Air Act, 42 U.S.C. 7604(a) (citizen suit), 42 U.S.C. 7418(a) (federal facilities). /9/ The court later similarly asserted that the term "all requirements" includes "process and sanctions." App., infra, 6a. /10/ Indeed, on brief in the court of appeals, the State itself relied entirely on the "process and sanctions" clause of Section 313, not the "requirements" clause. Resp. C.A. Br. 18-25. /11/ The court of appeals relied on the proviso's apparent presupposition that some other language in the statute waives sovereign immunity from at least some civil penalties in holding that the "process and sanction" language accomplishes such a waiver. App., infra, 6a. Yet the proviso itself is at best a limitation on a waiver and not a waiver itself. As such, the proviso could not provide the kind of "clear and unambiguous" language that is otherwise absent from the express terms of the balance of Section 313(a). /12/ See also McClellan Ecological Seepage Situation (MESS) v. Weinberger, 655 F. Supp. 601, 604-605 (E.D. Cal. 1986) (no waiver of sovereign immunity from state civil penalties); but cf. Metropolitan Sanitary Dist. v. Navy, 722 F. Supp. 1565, 1571-1572 (1989), on reconsideration, 737 F. Supp. 51 (N.D. Ill. 1990). /13/ Section 402(b) also requires a state seeking to run its own permit program to demonstrate to the EPA "that the laws of such state * * * provide adequate authority to carry out the described program." 33 U.S.C. 1342(b) (emphasis added). See also CWA Section 101(b), 33 U.S.C. 1251(b) (recognition that states retain "primary responsibilities * * * to prevent, reduce, and eliminate pollution"). /14/ See also 118 Cong. Rec. 33,761 (1972) (Rep. Wright) (stating that, if EPA approves state program, state may issue permits "under State law" and that such permits would be "State, not Federal actions"); H.R. Rep. No. 830, 95th Cong., 1st Sess. 104 (1977) (emphasizing that state permits are issued "under state law," and that an EPA-approved state program "functions in lieu of the Federal program" and "does not involve a delegation of Federal authority"). /15/ Judge Guy's dissenting opinion did cite California v. Department of the Navy. See App., infra, 23a-24a. /16/ See also Resp. C.A. Br. 26 (Water pollution counts in the complaint "contain pendent state claims for civil penalties under Ohio Revised Code Section 6111.09."). /17/ Indeed, by invoking pendent jurisdiction for its state-law penalty claims, the State apparently indicated its belief that there was no independent basis for federal jurisdiction over such claims -- i.e., unlike the claims for federal civil penalties, the claims for state civil penalties do not "aris(e) under" federal law. 28 U.S.C. 1331. /18/ To be sure, Ohio may choose to borrow federal standards for assessing civil penalties under CWA 309(d), 33 U.S.C. 1319(d), to govern some of these issues. See, e.g., State v. Dayton Malleable, Inc., 1 Ohio St. 3d 151, 157, 438 N.E.2d 120, 125 (1982) (using EPA's civil penalty policy to decide upon size of civil penalty under state law). Yet that choice has no bearing on whether a question of state or federal law is involved. Moreover, it is clear that many issues will be resolved in substantially different ways under state or federal law. For example, the maximum federal penalty permitted under the CWA Section 309(d), 33 U.S.C. 1319(d), is $25,000 per day for each violation; the maximum daily penalty under Ohio Rev. Code Ann. Section 6111.09 (Anderson Supp. 1987) is $10,000. /19/ Cf. Alabama v. Veterans Administration, 648 F. Supp. 1208, 1210-1211 (M.D. Ala. 1986) (interpreting federal facilities provision of Clean Air Act). /20/ Section 7002(a) authorizes a district court in a citizen suit to assess civil penalties under 42 U.S.C. 6928(a), as well as 42 U.S.C. 6928(g). Because RCRA Section 3008(a), 42 U.S.C. 6928(a), authorizes civil penalties in EPA-initiated enforcement actions, that provision is inapplicable in this case. /21/ In 1979, the Department of Justice sought a ruling from the Comptroller General as to whether federal civil penalties under an analogous provision of the Clean Air Act would be payable from the permanent indefinite appropriation available for satisfaction of judgments against the federal government (see 28 U.S.C. 2414; 31 U.S.C. 724a) or from appropriations available to the defendant agency. The Comptroller General determined that the source of funds depends on whether the agency contests its liability for the penalty (in which case payment could come from the judgment fund) or concedes such liability (in which case the payment must come from program funds). 58 Comp. Gen. 667 (1979). APPENDIX