The Federal Facility Compliance Act required all agencies of the federal government to comply with environmental laws of the United States.
On October 6, 1992, President George H. W. Bush signed into law the Federal Facility Compliance Act (FFCA), which authorized states to impose civil fines on federal facilities operating within their jurisdictions for violations of the Resource Conservation and Recovery Act of 1976 (RCRA).
The FFCA represented an abdication by Congress of federal responsibility for federal compliance with federally mandated environmental standards. By eliminating federal facilities’ sovereign immunity, Congress allowed the states to become part of the enforcement mechanism to pressure federal facilities into compliance.
The RCRA of 1976, as amended, was the toughest U.S. environmental law passed up until that time. The act regulated the ongoing disposal of hazardous and solid wastes.
Federal facilities often failed to comply with the RCRA, however. By the early 1990’s, the EPA regulated about 350 federal treatment, storage, and disposal facilities; of these, only about 40 percent were in overall compliance with the RCRA. Those not in compliance violated the RCRA by, for example, failing to report releases of hazardous wastes into the environment or failing to conduct adequate groundwater monitoring to document the extent of existing contamination. One examination found 116 federal facilities under the Departments of Defense, Transportation, Energy, and the Interior, along with facilities of the Small Business Administration, that were so contaminated with dangerous wastes that they were listed as national priority sites to be cleaned up under the 1980 Superfund
Although the majority of attention has focused on the Department of Defense
Individual states have sought to exercise control over federal polluters in order to force compliance with RCRA standards. The initial efforts focused on the courts and on the use of fines on noncompliant federal agencies. The U.S. Supreme Court
The narrow judicial interpretation of sovereign immunity frustrated state attempts to regulate federal facilities in relation to environmental laws from the time of the passage of the Clean Air Act (CAA)
The first legal confrontation between federal agencies and states over federal facility environmental compliance involved the permitting requirements of the CAA and the Clean Water Act
The U.S. Supreme Court agreed with the federal government. In 1975, the Court held, in Hancock v. Train,
In 1977, Congress responded to Hancock by amending the CAA to waive immunity for both permits and state-imposed civil penalties. Federal agencies interpreted this language as giving states power to fine agencies for CAA violations and never challenged state impositions of fines. In 1978, the comptroller general issued an opinion holding the National Oceanic and Atmospheric Administration liable to the Puget Sound Air Pollution Control Agency for administrative fines issued in response to a violation of local air-quality standards.
Congress also revised the CWA in an attempt to waive sovereign immunity, but federal agencies once again fought the applicability of the waiver to state-imposed civil fines. Lower federal courts split on the immunity issue. In the 1986 case of McClellan Ecological Seepage Situation (MESS) v. Weinberger,
In U.S. Department of Energy v. Ohio,
The Supreme Court, however, reversed the circuit court’s ruling in DOE v. Ohio (1992). The Court supported its holding with a comprehensive analysis of the meaning of the word “sanction,” holding that “sanction(s)” in reference to the CWA meant only penalties associated with judicial or administrative judgments. The Court noted that the CWA suggested a waiver of sovereign immunity, but the justices held that the statute’s language was too ambiguous to create such a waiver.
Congress passed the RCRA three months after the Supreme Court’s companion decisions in Hancock and EPA v. California ex. rel. State Water Resources Board and before it amended the CAA and CWA. The legislative history of the RCRA was unclear on the subject of state-imposed civil penalties.
The Sixth Circuit Court, interpreting the provision in DOE v. Ohio, ruled that although Congress had intended to waive sovereign immunity for civil penalties, it had not done so clearly enough to satisfy the standard articulated in Hancock v. Train. The circuit court based its opinion on a comparison of the CWA waiver and the RCRA waiver. The court asserted that the CWA waived immunity for both requirements and sanctions, suggesting that sanctions are not included in requirements. The RCRA waived immunity only for requirements. The court also stated that there was no language in the RCRA that protected agencies from the imposition of state civil fines for violations of state waste-management laws not approved by the EPA. It also pointed out that the statute’s explicitness in regard to court-imposed penalties, combined with its lack of civil penalties, suggested that sovereign immunity had not been waived as to the latter. The Supreme Court upheld the circuit court’s decision that the RCRA did not waive sovereign immunity for civil penalties.
In late 1991, Congress overwhelmingly passed the FFCA. The law contained two major provisions. First, it amended the RCRA to permit states to impose civil penalties on federal facilities for RCRA violations. Second, it overruled a policy of the executive branch that had previously prevented the EPA from imposing administrative fines on noncompliant federal agencies. All federal facilities thus lost their claim to sovereign immunity in regard to environmental legislation and were required to comply with state or federal fines imposed for noncompliance.
The law also contained two major exemptions. First, as long as the DOE issues and complies with plans for waste treatment and storage and cannot be fined for RCRA violations for its storage plans, it cannot be fined for RCRA violations for its storage of mixed hazardous and radioactive wastes. The DOE was granted this waiver because no technology existed for the proper storage or disposal of these types of wastes. Second, federal employees are granted immunity from civil liability authorized by the FFCA.
The FFCA was intended to ensure greater compliance by federal facilities with requirements of the RCRA for management, treatment, storage, and disposal of hazardous and solid wastes. Supporters of the law believed that civil fines assessed by the states would have the same effect on compliance for the RCRA as for the CWA and the CAA. In regard to the CAA and the CWA, federal compliance was 98 percent and 89 percent, respectively, as assessed in the early 1990’s by the EPA’s Office of Federal Facility Enforcement. Supporters of the FFCA thus believed that state fines would close the compliance gap in the RCRA.
Civil fines imposed under the FFCA were expected to improve compliance rates in two ways. First, because civil penalties accrue from the date a violation occurs and continue until the violation is remedied, the fines would encourage compliance by reducing the incentive to delay through litigation. Fines would have to be paid out of operating funds, so agencies should comply as quickly as possible to maximize the use of appropriated funds and to avoid diverting them for fines. Second, agencies might fear political backlash from Congress if appropriations are diverted to pay state fines for noncompliance with environmental regulations.
Other factors could hamper RCRA compliance under the FFCA. First, many federal agencies cannot comply with the RCRA because they have no means by which to dispose of the waste they create. The RCRA prohibits both the land disposal of hazardous wastes and the storage of such wastes aboveground for more than one year. The DOD and the DOE annually generate nearly twenty million tons of hazardous wastes and mixed waste. Additionally, about 80 percent of the biomedical waste produced by the National Institutes of Health and the Veterans Administration is radioactive and thus also is mixed waste. Treatment technologies to handle mixed wastes, however, have not been developed. It is thus inevitable that these wastes will be stored aboveground for more than one year, in violation of the RCRA. Congress responded to the dilemma by exempting the DOE from this provision of the RCRA.
Second, if federal facilities have the technology to deal with their wastes, institutional impediments may prevent their compliance. In 1991, for example, the DOD proposed eleven amendments to the House version of the FFCA to exempt certain defense activities from RCRA regulations. DOD officials argued that, without amendments, the FFCA would prevent them from performing their primary mission. Mission activities thus take precedence over environmental compliance in the view of DOD administrators. Fines alone are not likely to alter such perceptions.
Third, the congressional appropriations process may prevent federal agencies from receiving the funds needed to obtain compliance even in the presence of civil fines. In a political climate that favors cutting budgets, it is more difficult for federal agencies to obtain necessary funding increases to gain compliance. This is an institutional problem that is not addressed by the FFCA.
Fourth, federal agencies do not have any monetary incentive to seek compliance. Unlike private entities, federal agencies do not need to fear bankruptcy as a result of compliance fines. Without reform of agencies’ perceptions of their missions, federal agencies may be less likely than private entities to comply with environmental regulations before violations are discovered. After discovery, adverse publicity may be more effective as a threat than the fines imposed by the state. A system of state-imposed fines thus may do little to improve federal facility compliance unless additional measures are taken to change the manner in which agencies comprehend problems and seek solutions.
Fifth, federal agencies have an incentive to engage in litigation over fines instead of paying them. The availability of federal agency litigation budgets may encourage legal challenges in circumstances in which a private entity would be forced to comply in the interest of cost-effectiveness. Federal agencies’ fines are paid out of a separate federal judgments fund known as the Tucker fund, not out of the agencies’ operating budgets. Agencies therefore have some incentive to litigate fines before acknowledging liability.
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Axline, Michael D., et al. “Stone for David’s Sling: Civil Penalties in Citizen Suits Against Polluting Federal Facilities.” Journal of Environmental Law and Litigation 2 (1990): 20-21. Argues that the courts should consider congressional purpose, rather than the judicial doctrines of sovereign immunity and narrow construction, when making environmental decisions. -
Cheng, Elizabeth. “Lawmaker as Lawbreaker: Assessing Civil Penalties Against Federal Facilities Under RCRA.” University of Chicago Law Review 57 (1990): 845-854. Examines the contradiction inherent in the federal government’s capacity as both the issuer of environmental requirements and the largest generator of hazardous wastes and subsequent polluter of the environment. -
Gross, Andrea. “A Critique of the Federal Facilities Compliance Act of 1992.” Virginia Environmental Law Journal 12 (Summer, 1993): 691-712. Lucid, scholarly article presents a valuable legal critique of the act. Provides a strong overview of the act and the problems of federal facility compliance with earlier environmental legislation. -
Hourcle, L. R., and W. J. McGowan. “Federal Facility Compliance Act of 1992: Its Provisions and Consequences.” Federal Facility Environmental Journal 3 (1993): 359-382. Discusses all provisions of the new act relevant to federal facilities and addresses some of the act’s implications, such as funding for penalties. -
Lazarus, Richard J. “Fairness in Environmental Law.” Environmental Law 27, no. 3 (1997): 705-739. Looks at the history of environmental law in the United States from the standpoint of fairness. Includes discussion of the FFCA and RCRA. -
Millan, Stan. “Federal Facilities and Environmental Compliance: Toward a Solution.” Loyola Law Review 36 (1990): 319-323. Provides an overview of federal facilities and their lack of environmental compliance. Argues that the elimination of sovereign immunity is the means of achieving greater compliance. -
Schroeder, Mark C., et al. “Regulation of Nuclear Materials: Should National Defense and Other National Policies Override State Standards?” Environmental Law Report 22 (January, 1992): 10014-10015. Argues that adherence to state environmental standards might jeopardize Department of Energy missions involving national defense. -
Wolverton, J. B. “Sovereign Immunity and National Priorities: Enforcing Federal Facilities Compliance with Environmental Statutes.” Harvard Environmental Law Review 15 (1991): 565-568. Addresses the issue of sovereign immunity in relation to the enforcement of federally mandated environmental laws on federal facilities.
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