United States v. Pennsylvania Environmental Hearing Board, Robert Broughton, Paul E. Waters, and Ray A. Alberigi, Prothonotary of Lackawanna County

JAMES HUNTER, III, Circuit Judge,

dissenting:

I respectfully dissent. The majority has determined that Chamberlain Manufacturing Corporation is an independent contractor and that the Pennsylvania Environmental Hearing Board (the Board) has assessed the penalties involved in this case on Chamberlain in that capacity. The majority further reasons that since Chamberlain, as a private corporation, partakes of no special immunity from state regulation by virtue of its dealings with the federal government, the district court did not err in refusing to enjoin the collection of the penalty and entering judgment for the Board.

I believe that the proper analysis to be applied in this case is two tiered: has the Board’s action regulated activity over which the federal government has retained control; and if so, has Congress consented to this state regulation? If the Board’s action constitutes unconsented-to regulation of the United States, the district court should have enjoined the Board from encroaching on the federal government’s immunity from state regulation.

In my view, the relationship between the federal government and Chamberlain cannot be characterized as that of employer-independent contractor as to all aspects of Chamberlain’s presence on the premises of the Scranton Army Ammunition Plant. The federal government has, to a real extent, retained control over the facility. The Board’s penalty, although imposed on *1283Chamberlain, operates in part to regulate some aspects of the Scranton Plant over which the government has retained control. Finally, the Board has proceeded in a manner inconsistent with the limited authority conferred to the states by section 313 of the Federal Water Pollution Control Act 1972 Amendments1 to regulate pollution discharges of federal facilities. Thus I would reverse the judgment of the district court.

I.

In Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137,1139, 87 L.Ed. 1504 (1943) the Supreme Court stated that “the activities of the Federal Government are free from regulation by any state.” Congress may subject federal instrumentalities, property, or activities to state regulation, but “an authorization of state regulation is found only when and to the extent there is ‘a clear congressional mandate,’ ‘specific congressional action’ that makes the authorization of state regulation ‘clear and unambiguous.’ ” Hancock v. Train, 426 U.S. 167, 179, 96 S.Ct. 2006, 2013, 48 L.Ed.2d 555 (1976) (footnotes omitted).

Nevertheless, not all activity that “touches” the activities of the federal government is exempt from state regulation. Id. States are not necessarily hindered by the doctrine of intergovernmental immunities when they seek to regulate the activities of a private contractor supplying goods to or performing work for the federal government on federal property. See Penn Dairies v. Pennsylvania Milk Control Commission, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748 (1943); Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3 (1941). In those cases, contractors which supplied goods to the United States were required to submit to nondiseriminatory taxation and regulation with respect to their activities, even though the cost of the regulation would be borne by the United States. Thus, it seems that the state may regulate the manner in which a private contractor does work for the government on federal property 1) to the extent that the contractor’s activities affect valid state interests beyond the boundary of the federal facility; and 2) to the extent that federal law does not conflict with the state regulation.

Nevertheless, it is axiomatic that state regulation can only be directed at the private contractor’s activities and not at those of the federal government itself. The mere fact that the United States has employed a contractor to perform services on federal property does not open the entire facility to state regulation. If the state seeks to regulate activity at the federal facility over which the United States has retained control, it can do so only if Congress has consented to the regulation. Otherwise, the federal activity is immune from state regulation. Cf. United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944) (property of the United States supplied to contractor for use at the contractor’s plant may not be taxed at full value where contractual restrictions on its use for the government’s benefit render property less valuable to contractor).

II.

' In this case, the Board, in furtherance of its duty to regulate the discharge of pollutants into state waters, assessed civil penalties against Chamberlain for discharging wastes into Roaring Brook while performing its contracts on the premises of the Scranton Plant.2 To determine whether the Board has the authority to assess fines, I believe that the court must analyze whether the state’s regulation is directed at the fed*1284eral government. This can be determined by first examining the scope of authority delegated to Chamberlain in its contract in order to determine the extent to which the federal government has retained control over the Scranton Plant. Secondly, the extent to which the state Board has regulated activities over which the United States has retained control can be determined by examining the nature of the Board’s adjudication.

A.

The Scranton Army Ammunition Plant is a federal facility. The property on which the plant is located is owned by the United States. The equipment and installations on the property are owned by the government. The United States has engaged Chamberlain to operate the Scranton Plant, and during the time period relevant in this case, Chamberlain manufactured artillery shells for the Department of the Army.

Chamberlain’s presence at the Scranton Plant from July 31,1970 through December 18, 1972 (the period of time for which fines were assessed), was by virtue of two “facilities” contracts entered into with the government. The first contract, executed in 1963, contained no mention of Chamberlain’s authority to bring the plant into compliance with pollution control requirements. As noted by the majority, Chamberlain was required to procure all “necessary permits and licenses” and to obey all “other rules of the United States of America, of the state, territory, or subdivision thereof” where the work described by the contract was to be performed.

The stipulated facts presented to the district court, however, indicate that Chamberlain was unable to provide and be reimbursed for pollution control facilities for the plant without government approval.3 Further, the facts indicate that while pollution abatement projects were commenced at the plant as early as 1966, the Department of the Army was intimately involved with the preparation, budgeting, and budget apportionment of such projects. The parties also agreed that the pollution control project covered a period of four years, and that even an emergency contract submitted to the Department of the Army required more than a year for work to commence.4

The contract itself indicates the extent to which the United States, through the Department of the Army, retained control over the facility. Chamberlain’s activities on the government property were subject to certain supervision by the Army contracting officer, Lieutenant Colonel Duggan, on the premises. The contract provided that Chamberlain was required to provide, by manufacture or by purchase, the Scranton Plant with certain equipment. Further, the government was to provide equipment and facilities to the contractor, for use by the contractor in fulfilling its commitment to supply the government with artillery shells. Beyond the equipment described in the contract, the contracting officer was empowered to add other materials to be supplied for the plant. Chamberlain was entitled to suggest additions or changes but was required to continue to perform its obligations under the facilities contract even when the changes it recommended had not yet been adopted.

The contract required Chamberlain to establish and implement a program for the proper protection, maintenance, preservation, and repair of the facility. The program was required to be approved by the contracting officer, and no replacement, repair, or restoration of the plant or facilities beyond that approved by the contracting officer could be performed unless Chamberlain was directed to do so.

The second contract between Chamberlain and the Army was executed on July 1, 1971. The agreement contained specific *1285provisions relating to pollution abatement. The first paragraph of Article IV-D of the contract provides:

The parties recognize that the plant, as presently equipped, its location and its age may be incapable of conforming to the standards for environmental and pollution control currently being promulgated. As a consequence, the contractor's responsibility and liability to all Government agencies, federal, state and local, and its capability to meet imposed standards of environmental controls, must and is contingent upon availability of funds under this contract necessary to assure compliance by the facility with such standards.

In order to update facilities to meet environmental requirements, it appears that the contracting officer would be required to include in the contract schedules any pollution control equipment or replacement equipment that would conform to pollution abatement requirements after the contract had been executed. Under the provision of the contract providing for changes in the schedules, authority to add additional equipment to be installed and maintained by the contractor was vested only in the contracting officer. Further, the contract did not permit Chamberlain to put in “any fixed improvements” to the facility without approval of the contracting officer.

Also, the contract provided that if Chamberlain were subjected to any state regulation, the government would indemnify the contractor and hold it harmless for all losses incurred.

The contract provisions thus indicate that Chamberlain possessed no authority with respect to the addition of equipment or other installations at the Scranton Plant. Rather, I would find the Department of the Army retained control over the decisions as to whether or not to acquire additional equipment or make improvements to the facility, including those related to pollution abatement. Consequently, the nature of Chamberlain’s relationship with the government, at least as to this aspect of the contract, was not that of an independent contractor. ■

The contract language referring to Chamberlain as an “independent contractor” is not inconsistent with a finding that Chamberlain lacked authority to acquire pollution control equipment and facilities. As the majority points out, Chamberlain was designated as an independent contractor as to that function it engaged to perform for the government — day-to-day operation and maintenance of the Scranton Plant. A finding that Chamberlain lacked authority to formulate and implement plans with respect to capital improvement of the facility does not conflict with the finding that Chamberlain was an independent contractor and thus not subject to federal control as to other aspects of its contract with the Army.

B.

The state’s power to regulate Chamberlain necessarily must be limited to those aspects of the operation of the Scranton Plant over which the private contractor retained exclusive control. Any regulation by the Board of the Plant’s activities beyond those as to which Chamberlain could be designated as having less than complete control would be directed against the federal facility itself and the federal government.

The Board imposed penalties on Chamberlain for three different violations of its Clean Streams Laws. First, Chamberlain was penalized for operating the plant and thus discharging pollutants into Roaring Brook without a permit. Second, Chamberlain was fined for discharging more oily and metallic wastes into the stream than permissible under state regulations. Third, the Board fined Chamberlain for failing to notify the State Department of Environmental Resources that it introduced toxic substances into Roaring Brook which resulted in pollution of the stream.

*1286The district court did not examine the scope of Chamberlain’s authority under its contracts or the nature of the state regulation. Although the record is not clear, an examination of the violations cited by the Board indicates that in part at least the penalties assessed against Chamberlain were directed at that aspect of the Scranton Plant’s operation over which Chamberlain had no control. Thus, to some degree, the regulation necessarily was directed at the federal government, which retained all control over the facility not relegated to the contractor.

The permit requirement. In order to qualify for a permit under the Pennsylvania laws applicable to this case, it appears that any ongoing industrial operation must have first demonstrated that the waste it would discharge had been detoxified to a degree acceptable to state authorities. See 35 Pa. Stat.Ann. § 691.307 (Purdon 1970). Without such a permit, the facility is prohibited from operating. Thus, if the imposition of the permit requirement would compel the federal government to take any action to bring the Scranton Plant into compliance with state discharge limits, the requirement operates to regulate the federal facility directly. See Hancock v. Train, supra, 426 U.S. at 180, 96 S.Ct. 2006.

Discharges of oil and metallic wastes. An industrial operation may, under the Pennsylvania regulations, 25 Pa.Code, ch. 95 §§ 95.3, 97.14, 97.63 & 101.3, be subject to penalties for discharging wastes containing excess amounts of oil or metallic matter. If the federal government, by virtue of its retention of control over the acquisition of equipment and installation for the Scranton Plant, would be forced to institute improvements to the facility itself in order to comply with the regulations, the United States, and not Chamberlain, is the direct object of the Board’s action.

To an extent, however, the record indicates that the Board’s penalties may have been directed at Chamberlain’s conduct in performing its contract, and not at those aspects of the Scranton Plant over which the federal government retained control. The record discloses a factual dispute as to the extent to which some part of the discharges occurred because of Chamberlain’s failure to exercise care in its day-to-day operation and maintenance of the plant. State regulation which has the sole effect of requiring a private contractor to minimize pollution discharges caused by the contractor’s performance of duties over which the federal government does not retain the right to control would not operate as regulation of the federal government. I believe that the district court should be required to resolve the factual questions raised here.

The notice requirement. Although the record in this case does not indicate the nature of this violation cited by the Board, I believe that the district court should ascertain whether the state regulation intended by the notice requirement applied to those aspects of the operation of the Scranton Plant over which the federal government retained control or merely to Chamberlain’s own duties as an independent contractor on the site. Again, to the extent that the state regulation is directed at the United States, the action of the Board infringes on the federal government and cannot be enforced unless Congress has consented to the regulation.

III.

The state regulation involved in this case is directed at least in part at the federal government. In order to determine whether the Board had the authority to proceed in this manner, the scope of congressional consent to state regulation of federal facilities, outlined in the Federal Water Pollution Control Act 1972 Amendments, supra, must be examined.

As the majority has noted, the government has argued that under section 313 of the Federal Water Pollution Control Act 1972 Amendments, the State Board was without authority to regulate the govern*1287ment’s discharge of pollutants from a federal facility by bringing an enforcement action in a state administrative proceeding. The cases relied on by the government, Hancock v. Train, supra, 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), indicate that at the time that the Pennsylvania Environmental Control Board imposed penalties on Chamberlain, Congress had consented to state regulation of federal facilities in only a limited fashion.5

Section 313 of the Act requires every department, agency, or instrumentality of the federal government with jurisdiction over any property or engaged in any activity which could result in the discharge of pollutants to comply with federal, state, and local requirements respecting control and abatements of water pollutants. The case law interpreting section 313 indicates, however, that Congress provided for limited jurisdiction for enforcement by the states or private persons. The only means provided for enforcing a state’s requirements respecting water pollution control is provided by section 505 of the Act, 33 U.S.C. § 1365 (Supp. IV 1974), which permits any person (including a state) to bring an action in federal court for violation of an effluent standard or limitation under the Federal Water Pollution Control Act.

The legislative history of the Act makes clear that federal facilities operated by nongovernmental entities are subject to the requirements of section 313 of the Act. H.R.Rep.No.127, 91st Cong., 2d Sess. 6, 19-20, reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 2696, 2710 — 11; H.Conf. Rep.No.940, 91st Cong., 2d Sess. 55, reprinted in [1970] U.S.Code Cong. & Admin.News, p. 2740. Thus, to the extent that a state seeks to regulate the federal government’s activities that cause pollution in the state, it must proceed pursuant to section 505 against the government in federal court. To the extent that the Board’s adjudication in this case must be regarded as regulating the federal government, the Board was without jurisdiction to enter its order.

The majority implies that reversal of the district court in this case would thwart the national policy of fighting the dangers caused by water pollution at all levels of society. I believe that the scope of this case is far more limited. Since the Board did not avail itself of the means by which the Scranton Plant could have been brought into compliance with water pollution requirements, its actions operated as an attempt to regulate the federal government in a manner inconsistent with its consent.6 I would reverse and remand this case to the district court for further proceedings.

. Pub.L.No.92-500, 86 Stat. 875 (1972) (repealed 1977) (codified at 33 U.S.C. § 1323 (Supp. IV 1974), reprinted in majority opinion, supra, note 1. Although since repealed, section 313 of the 1972 Act applied at the time relevant to this appeal.

. The fact that the penalty assessed by the Board is directed only at Chamberlain is not determinative of this case. If the state pollution requirements applied to matters over which the federal government, and not Chamberlain, retained control, the Board could not compel compliance with its regulations by imposing the penalties only on Chamberlain. See United States v. Allegheny County, supra, 322 U.S. at 186-188, 64 S.Ct. 908.

. Finding of Fact 43, 431 F.Supp. 747, 751 (M.D.Pa.1977).

. Finding of Fact 44, 431 F.Supp. at 751.

. As the majority has noted, the 1977 Amendments to the Act broaden the scope of the congressional consent to state regulation of federal facilities in this regard. See majority opinion, supra, notes 23-24 and accompanying text.

. I do not believe that footnote 27 of the majority reaches the position taken in this dissent.