since they are not simply different ways of proscribing the same conduct.
65. Copies of Contract Nos. DA-36-034-AMC-0163A, identified as Contract No. 1, and DAA09-71-C-0257, identified as Contract No. 2, together with a copy of the Board's Adjudication, identified as Adjudication, dated July 31, 1973, are a part of the record as joint exhibits of the parties.
As of July 1, 1972, there existed in the United States 18 government-owned, contractor-managed ammunition complexes "in active manufacturing status." See Government Exhibit 1 attached to its March 31, 1977 brief in support of the motion for summary judgment. One of those plants sits on the banks of Roaring Brook, a tributary of the Lackawanna River, in Scranton, Pennsylvania and, during the period pertinent to this case, produced long-range artillery shells under the auspices of the Chamberlain Manufacturing Company. During this time, the military officer overseeing the operation, the so-called "Contracting Officer's Representative", was Lieutenant Colonel Daniel E. Duggan.
On October 19, 1972, Defendant Pennsylvania Environmental Hearing Board (hereinafter the "Board") issued a default adjudication against the Secretary of the Army, Duggan, and Chamberlain for violations of Pennsylvania water pollution standards.
On July 31, 1973, after a hearing, the Board levied a civil penalty of $1,667,000 against Duggan and Chamberlain. On August 22, 1973, the United States filed the above-captioned case requesting:
(a) That the relevant section of the Pennsylvania Clean Streams Law, July 31, 1970, P.L. 653, No. 222, § 16, 35 P.S. 691.605, be declared inapplicable to and unenforceable against the United States, its officers, or its agents.
(b) That the civil penalty levied against Duggan and Chamberlain be declared invalid;
(c) That the civil penalty be declared null and void as a basis for any liens; and
(d) That the Board be permanently enjoined from enforcing and collecting the aforementioned civil penalty from the United States, its officers or its agents. No appearance has been made by Chamberlain. By stipulation, Duggan has been relieved of any potential liability.
Federal installations and activities are shielded from regulation by the States unless there is a clear and specific Congressional mandate which unambiguously authorizes state regulation. Hancock v. Train, 426 U.S. 167, 179, 96 S. Ct. 2006, 48 L. Ed. 2d 555 (1976); Paul v. United States, 371 U.S. 245, 263, 83 S. Ct. 426, 9 L. Ed. 2d 292 (1963); Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122, 74 S. Ct. 403, 98 L. Ed. 546 (1954); California ex rel. State Water Resources Control Board v. EPA, 511 F.2d 963, 968 (9th Cir. 1975). The Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., grant the States some power to regulate federal facilities with respect to the discharge of effluents: "Each department, agency, or 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 or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements . . ." § 313 of the Amendment, 33 U.S.C. § 1323. To enforce compliance, a citizen may commence a civil action in a district court "against any person (including . . . the United States . . .) who is alleged to be in violation of . . . an effluent standard or limitation under this chapter". § 505(a)(1) of the Amendments, 33 U.S.C. § 1365(a)(1). Except for a reference to "emission standard" in lieu of "effluent standard", the Federal Clean Air Act contains an identical provision, 42 U.S.C. § 1857h-2, which the Supreme Court has interpreted as creating the "only means" for the States to remedy noncompliance with that Act by federal facilities. Hancock v. Train, 426 U.S. 167, 196, 96 S. Ct. 2006, 48 L. Ed. 2d 555 (1976). In a sister case decided the same day, EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 96 S. Ct. 2022, 48 L. Ed. 2d 578 (1976), the Supreme Court's discussion of § 505 of the Water Pollution Amendments implicitly assumes that its language likewise defines the sole means by which a State may remedy federal non-compliance with the Water Pollution Control Act.
The United States maintains that in light of these interpretations of the Clean Air and the Water Pollution Control Acts, the only permissible avenue of enforcement against Chamberlain was a civil action filed in a United States District Court. The contention has merit only if Chamberlain is a "department, agency, or instrumentality of the executive, legislative, [or] judicial [branch] of the Federal Government . . ." See 33 U.S.C. § 1323. The Court is of the view that it is not. Although the Government rests its case squarely on the Supreme Court analysis of the jurisdictional limitations imposed by the Water Pollution Control Act, an evaluation of Chamberlain's situation absent the statute lends perspective to the issue before this Court.
The Water Act does not purport to create immunities from suit for violations of State effluent standards where none existed before its enactment. Such an interpretation, affording increased protection to polluters, in addition to being of dubious Constitutional validity, would fly directly in the face of the Act's purpose. Consequently, if prior to the creation of the Water Act, Chamberlain enjoyed no immunity from this type of suit as a fringe benefit of its relationship with the Government, it can find no impregnable haven in the statute, even though the question of where it may be made to stand trial could be affected.
The Federal Government's immunity from suit emanates from the Constitution by implication. Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 388-389, 59 S. Ct. 516, 83 L. Ed. 784 (1939); Monaco v. Mississippi, 292 U.S. 313, 321, 54 S. Ct. 745, 78 L. Ed. 1282 (1934). Because the doctrine places the United States in a privileged position, it has been "appropriately confined" and the Government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Ibid: Sloan Shipyards v. United States Fleet Corporation, 258 U.S. 549, 567, 42 S. Ct. 386, 66 L. Ed. 762 (1922). Nothing in the relationship between Chamberlain and the Government in this case requires an exception to this general principle.
Exhibit 1 to the Government's brief in support of its motion for summary judgment refers to the companies which were operating ammunition plants under an agreement with the United States in 1972 as "independent contractors". Likewise, the two contracts which bridge the time span pertinent to this suit denominate Chamberlain "an independent contractor and not an agency of the Government" and employ language fully consistent with that characterization. To cloak Chamberlain with the immunity of the Government under these circumstances would violate the principle of restrictive application enunciated in Keifer & Keifer. Accordingly, in two cases arising out of the same incident at an ammunition plant listed in Government Exhibit 1, the Fifth and Eighth Circuits declined to extend immunity to the contractor despite its intimate connection with the United States. Whitaker v. Harvell-Kilgore Corporation, 418 F.2d 1010 (5th Cir. 1969) and Foster v. Day and Zimmermann, Inc., 502 F.2d 867 (8th Cir. 1974). In concluding that the defendant manufacturer did not enjoy any governmental immunity, Whitaker and Foster relied on the Supreme Court's view that these ammunition plants are "private". See Powell v. United States Cartridge Company, 339 U.S. 497, 507, 70 S. Ct. 755, 94 L. Ed. 1017 (1950). Given the near identity of Chamberlain's position in this matter to that of the analogous company in Whitaker and Foster, the Court perceives no material factual distinction which would render those cases inapposite here. Since the Court concurs in the legal analysis of the Fifth and Eighth Circuits, it likewise is of the view that prior to the enactment of the Water Pollution Control Act, Chamberlain enjoyed no immunity which it could interpose between itself and the Board. The fact that the latter of Chamberlain's two relevant contracts contains an indemnity clause only reinforces this conclusion.
Since Chamberlain had no immunity prior to the Water Act Amendments and since they created no immunities where none previously existed, the Board's action is invalid only if it was required to vindicate its effluent standards by a civil action in a United States District Court. However, such a limitation on a State's enforcement options applies only where the polluting activities of a Government "department, agency, or instrumentality" are under attack. To include Chamberlain, an independent contractor, within that definition would not only strain the literal language, but would, by extending a partial shield to the vast number of companies which do business under contract with the Government, flout the environmental concerns which gave impetus to the Air and Water Acts. Those statutes, rather than erecting new obstacles to enforcement, exposed to suit in a specific forum the otherwise immune activities of strictly governmental agencies. That companies such as Chamberlain were not meant to be encompassed within their exclusive remedy provisions is evidenced by the Supreme Court's discussion of the Clean Air Act in the context of Congress's ". . . exclusive legislative authority over federal enclaves purchased with the consent of a State. . ." -- a description of the facilities affected by the Act into which Chamberlain does not fit. Hancock v. Train, 426 U.S. 167, 178, 96 S. Ct. 2006, 2012, 48 L. Ed. 2d 555 (1976).
This Court's refusal to invalidate the Board's penalty against Chamberlain does not undo the restrictions placed on a State's enforcement of its pollution standards by Train and EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 96 S. Ct. 2022, 48 L. Ed. 2d 578 (1976). Federal buildings and installations operated directly by the Government, such as penitentiaries, army bases, post offices, courthouses and the like were the intended objects of the Air and Water Acts' limited waiver of immunity and are the facilities to which they speak. In the final analysis, those Acts have no bearing on the Board's action against Chamberlain.
In the light of the foregoing, an appropriate order directing entry of judgment in favor of the Board will issue.
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