Statement on Signing Legislation Waiving Federal Immunity Relating to Solid and Hazardous Waste

I am signing into law H.R. 2194, which waives Federal sovereign immunity for violation of Federal, State, and local laws and regulations related to solid and hazardous waste.

Four years ago I promised the American people that I would make the Federal Government live up to the same environmental standards that apply to private citizens. By signing this bill, we take another step toward fulfillment of that promise.

My Administration has made a concerted effort to ensure that Federal facilities have the resources to meet the requirements of our Nation's environmental laws. Since 1989, we have tripled funding for the cleanup of wastes at Federal facilities and for bringing them into compliance with applicable environmental laws. Our FY 1993 budget proposed $9.5 billion for environmental cleanup and compliance at Federal facilities. The $5.5 billion request for Department of Energy environmental restoration and waste management activities represented an increase of $1.1 billion. This was approximately 26 percent above enacted FY 1992 levels. I am pleased that the Congress has agreed to fund these requests.

The objective of the bill is to bring all Federal facilities into compliance with applicable Federal and State hazardous waste laws, to waive Federal sovereign immunity under those laws, and to allow the imposition of fines and penalties. During the development of H.R. 2194, my Administration supported this objective, but insisted that the legislation recognize unique situations presented by activities of the Department of Defense and the Department of Energy. I commend the Congress for the effort made to address these situations.

This Administration will strive to comply fully with the legislation. I want to emphasize, however, that several provisions of H.R. 2194 will require special effort and the cooperation of regulators and other interested parties to ensure that national compliance goals are met. My Administration views this legislation as a unique opportunity for a positive and constructive relationship between the various parties to ensure that enforcement actions and the assessment of fines and penalties will be exercised within a fair framework.

I look forward to a cooperative effort under this legislation to accomplish our national compliance goals and promote the implementation of efficient, cost-effective waste management programs.

In signing this bill, I wish to clarify the question of the source of payment of fines and penalties. H.R. 2194 is silent on this matter. House Report 102 - 111 suggests that Federal agency appropriations would be the source when the agency concedes liability or agrees to pay after an administrative hearing. However, the Judgment Fund would be the source if the agency disputed the matter and sent it to the Attorney General for defense. The Judgment Fund provides for the payment of judgments, awards, and settlements that are not otherwise provided.

This approach would put incentives in the wrong place and muddy the lines of responsibility within the Federal Government. It would take away the coercive effect penalties might have on the agencies and turn the waiver of sovereign immunity into a revenue sharing program. Accordingly, fines or penalties imposed as a result of this legislation will be paid from agency appropriations, unless otherwise required by law.

Finally, section 102(a)(3) of the bill amends the Solid Waste Disposal Act to subject the Federal Government to "all civil and administrative penalties and fines" imposed with respect to solid waste or hazardous waste, including penalties and fines "imposed for isolated, intermittent, or continuing violations." The conference report on H.R. 2194 indicates that under the latter provision, the Federal Government may be penalized "notwithstanding the holding of the Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)." The Supreme Court's decision in Gwaltney rested in part on constitutional principles of standing and mootness. See 484 U.S. at 65 - 67; id. at 70 - 71 (Scalia, J., concurring in part and concurring in the judgment). I must note that no statute, and certainly no conference report, can overcome these principles.

George Bush

The White House,

October 6, 1992.