UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 20460

APR 5 1989

Dennis J. Harnish
Assistant Attorney General
State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

Dear Dennis:

Thank you for your letter summarizing the concerns you have with using the Citizen's Suit provisions of CERCLA section 310 as the mechanism for enforcing the Brunswick Naval Air Station Interagency Agreement (IAG). EPA and the Department of Justice (DOJ) believe CERCLA section 310 provides Maine with an effective and efficient means of enforcing the IAG, as evidenced by the following response to your letter. We have addressed each of your concerns individually. We ask that you reconsider your position in light of this response.

1. Standing.

   You express concern that, in any enforcement action you might bring, the Navy might argue that a state is not a "citizen" empowered to bring a citizen suit under section 310 of CERCLA. You cite two cases construing the Clean Water Act's possible authority. As you also note, however, the Clean Water Act's definition of a "person" who may bring a citizen suit does not include a state, whereas CERCLA's definition of "person" does. We believe this distinction would preclude the successful use of Clean Water Act precedent on this issue. In addition, while the citizen suit provision requiring that notice be given to a state may seem to lead to the result that a state suing under section 310 must first give notice to itself, this peculiarity cannot reasonably be read to indicate that the citizen suit provision is not available to a state.

   More importantly, EPA itself interprets sections 101(21) and 310 to allow a State to bring a citizen suit to enforce a section 120 IAG. We believe that this interpretation is already reflected in the enforceability provisions of the proposed IAG for Brunswick; however, we have no objection to adding language that explicitly references the state as a person with the right to bring such a suit, i.e., your proposed "including any party" language in the Enforceability section.

   Finally, we think it unlikely that either the Navy or DOJ, on behalf of the Navy, would take a contrary position at some later date. Through the Model IAG developed between EPA and the Department of Defense (DoD), DoD has already agreed to the enforceability language we have proposed for Brunswick. In addition, in closely analogous circumstances DOJ has also agreed that an IAG is enforceable by a signatory state in accordance with the enforceability provisions of the agreement. (See the attached letter from Donald A. Carr, Acting Assistant Attorney General, Lands and Natural Resources Division, DOJ, dated February 26, 1989, concerning the Hanford facility in the State of Washington.) Given the unanimity among EPA, DoD, and DOJ on this issue, we do not believe there is any possibility that you may be faced with a challenge to your standing to bring a CERCLA citizen suit for enforcement of this IAG.

2. Jurisdiction over RI/FS.

   Your second concern is that those portions of the IAG which relate to activities occurring prior to the completion of the RI/FS may not be enforceable by citizen suit because section 120 of CERCLA mandates IAGs only after the RI/FS is completed. We believe this concern is also unfounded. It is true that the Navy is not required to enter an IAG prior to the completion of the RI/FS process. However, once the Navy has agreed to an IAG, each of the provisions of the IAG that relate to a CERCLA action becomes enforceable under section 310 as a "standard, regulation, condition, requirement, or order which has become effective pursuant to this Act."

   We believe the enforceability language in section 21.1 of the proposed Brunswick agreement already reflects this interpretation of the statute. Since your proposed addition is consistent with our reading of the statute, we would not object to its incorporation. In addition, the Department of Justice agreed as to the Hanford IAG that "The CERCLA provisions of this agreement are enforceable pursuant to section 310 of CERCLA." We would expect them to take the same position here.

3. Procedural Pre-Conditions.

   You raise two concerns about procedural hurdles to a citizen suit. First, you consider the 60-day notice requirement an obstacle to enforcement. While we agree that it would result in a slight delay in the commencement of a lawsuit, we do not believe that this delay reduces the effectiveness of a citizen suit as a means of redressing IAG violations. A major purpose of the notice provision is to afford a violator the chance to correct violations before a suit is brought; the result is compliance at an earlier date than can generally be achieved through litigation, and with a minimal commitment of resources on the part of the enforcing authority.

   Secondly, you raise the possibility that the existence of an IAG might be taken as evidence that EPA "has commenced and is diligently prosecuting an action" under CERCLA, thus precluding a citizen suit. See CERCLA section 310(d)(2). We disagree that the statute can be so construed. Since EPA will always be a party to any section 120 IAG, the reading of the statute that you propose would mean that a citizen suit could never be brought for IAG violations; this would render meaningless the express language section 310(a)(1) authorizing citizen suits for IAG violations. Moreover, Section 310(d)(2) itself indicates that only an action by EPA to enforce the IAG would bar a similar citizen suit; the statute limits citizen suits only where EPA has brought an action "to require compliance with the standard, regulation, condition, requirement, or order concerned (including any Provision of an agreement under section 120)." CERCLA section 310(d) (2) (emphasis added). Thus, we do not believe that the argument you foresee could be made in good faith. Again, however, this issue is unlikely to arise because the Navy's agreement to the enforceability provisions of the Brunswick IAG will indicate their agreement that a citizen suit is an appropriate mechanism for enforcement of the IAG's terms. The DOJ letter should also provide reassurance on this point.

4. Remedies.

   Your next concern is that, in any citizen suit that the State might bring to enforce the IAG, you would be unable to collect civil penalties that would be paid to the State. We agree that CERCLA makes no provision for a citizen to collect civil penalties for its own benefit. While a citizen will thus be unable to profit from a suit, this will not lessen the effectiveness of such a suit in achieving a violator's return to compliance. This limitation, then, does not impair the enforceability of an IAG by a state.

   You propose, nonetheless, to add several lines to section 21.3, providing that the IAG also "constitutes an administrative order entered by consent between the Navy and DEP pursuant to 38 M..R.S.A. sections 347(l) and 1365 and is enforceable in the same manner as administrative consent orders including, without limitation, seeking civil penalties and judicial enforcement pursuant to 38 M.R.S.A. sections 348, 349, >1304(12) and 1365." As you know, Federal agencies are subject to state laws respecting hazardous waste disposal only to the extent that section 6001 of the Resource Conservation and Recovery Act waives sovereign immunity. As you are aware, DOJ on behalf of various agencies and departments including the Navy, has consistently maintained that section 6001 does not waive sovereign immunity from penalties. We suggest that the IAG be silent on the subject of state penalties, (and that the proposed language not be included), thus allowing each party to preserve its position on this issue for future resolution, if necessary.

5. Prospective Relief Only.

   Your final concern about the citizen suit provision is that it may be unavailable to address past violations. As you point out, the citizen suit provision of the Clean Water Act has been construed to require that violations be ongoing or likely to recur at the time the citizen's complaint is filed in order for the court to have jurisdiction. Gwaltney of Smithfield v. Chesapeake Bay Foundation Inc.,108 S. Ct. 376 (1987). Because of the similarity between the citizen suit provisions in the Clean Water Act and CERCLA, this requirement would likely apply in any section 310 suit to enforce the terms of an IAG.

   We do not believe, however, that this impairs the effectiveness of such a suit in enforcing compliance with the IAG. As previously noted, if a violator comes into compliance between the time it receives a 60-day notice and the time a complaint is filed, then compliance is achieved sooner than it would be through litigation, and at a lesser cost to the enforcing citizen. In any event, since CERCLA does not provide for civil penalties to be paid to a citizen, the benefit to the State of filing an action after compliance is achieved is doubtful.

   Your final concern, that the holding in Gwaltney may be extended to support dismissal of an action on mootness grounds even after a complaint is filed, does not appear to be supported by the post-Gwaltney case law. See Sierra Club v. Simkens Industries, Inc, 847 F. 2d 1109 (4th Cir. 1988); Sierra Club v. Union Oil Co. of California, 853 F. 2d 667 (9th Cir. 1988).

I believe this response should satisfy the concerns you expressed about using the Citizen's Suit provisions of CERCLA section 310. Please call me if you would like to discuss our position further.

Sincerely,

Gordon Davidson, Deputy Director
Federal Facilities Hazardous Waste Compliance Office

Enclosure