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

584 F.2d 1273, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20689, 1978 U.S. App. LEXIS 9550

• Court: Court of Appeals for the Third Circuit
• Decided: August 14, 1978
• Docket: 77-2041
• Status: Published

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge.

This appeal requires us to determine whether a private company operating under federal contract is a federal “department, agency or instrumentality” for the purposes of section 313 of the Federal Water Pollution Control Act Amendments of 1972 (Act).¹ That provision requires inter alia that a federal “department, agency or instrumentality” comply with State and local pollution control requirements “to the same extent that any person is subject to such requirements.”

The district court determined that Chamberlain Manufacturing Corporation (Chamberlain), the company whose operations and whose relationship to the Government is involved here, is a private independent contractor and not a federal agency for purposes of section 313. That holding resulted in the district court granting the summary judgment motion brought by the Pennsylvania Environmental Hearing Board (Board). 431 F.Supp. 747 (M.D.Pa.). We affirm.

I

The United States owns the premises, installations and equipment at the Scranton Army Ammunition Plant (Plant) in Scranton, Pennsylvania. The primary function of the Plant is the production of metal parts for ammunition shells used solely by the United States.² Chamberlain, an Iowa corporation having a certificate of authority to do business in Pennsylvania, operates the Plant under a facilities contract with the United States.³ That contract designates Chamberlain as “an independent contractor and not an agency of the Government,”⁴ and provides that the personnel employed “in carrying out the work hereunder . shall constitute employees of the Contractor [Chamberlain] and not of the Government.” ⁵

From July, 1970 through October, 1972, the operation of the plant by Chamberlain resulted in the discharge of 1.5 million gallons per day of untreated wastes from the Plant into Roaring Brook, a tributary of the Lackawanna River. “As a result of the industrial waste discharge, no fish could have lived within a half mile of the plant, and the lower life forms were also depressed.” ⁶

During this period, “Chamberlain knew that its operation of the plant and the attendant discharge of industrial wastes from the plant caused substantial pollution of Roaring Brook.”⁷ Chamberlain however was not unresponsive: commencing in 1966 and at least through October, 1972, Chamberlain engaged in a series of pollution abatement measures which, by October, 1972, resulted in abatement of the Plant’s industrial waste discharge.

The parties stipulated that in order to receive reimbursement from the United States for its pollution control programs, Chamberlain required the approval of the Department of the Army prior to their implementation.⁸ The facilities contract between the Government and Chamberlain nonetheless specified that Chamberlain was to comply with all governmental laws and regulations, and was to “procure all necessary permits and licenses,” including those of state and local authorities.9 Additionally the facilities contract contains a specific section dealing with Chamberlain’s responsibility to comply with state pollution control laws, and provides among other things that “[i]n the event any Governmental agency, local, state or federal, shall assess fines, institute suit, or otherwise disrupt, curtail, or order cessation of production, the Government shall hold harmless and indemnify the contractor for costs and damages incurred.”¹⁰

In 1972, the Pennsylvania Department of Environmental Resources (Department) filed a complaint for civil penalties for water pollution with the Board against Chamberlain and other defendants.¹¹ The complaint alleged violations of the Pennsylvania Clean Streams Law,¹² and sought money damages pursuant to the 1970 Amendments to that act. None of the defendants filed an answer. On October 19, 1972, the Board entered a default judgment against Chamberlain and the commanding officer of the facility. (App. 17, 35).

At a subsequent penalty hearing, an Assistant United States Attorney made a limited appearance on behalf of all defendants. He argued that under the doctrine of sovereign immunity the Board lacked jurisdiction to “ ‘impose fines or penalties upon federal employees or federally operated facilities .. ’ ”¹³ The Board denied the Government’s objection to the Board’s assertion of jurisdiction. This jurisdictional objection constituted the full extent of the Government’s participation in Board proceedings.¹⁴ The Board went on to assess a $1,667,000 fine against Chamberlain.

Following the Board’s decision, the United States filed a complaint in the federal district court, seeking an injunction to prevent the Department's enforcement and collection of the fine levied against Chamberlain.¹⁵ The parties stipulated to the relevant facts,¹⁶ and the case was heard upon a motion for summary judgment brought by the Board.

Aware of the dismissals and stipulations affecting the other defendants,¹⁷ the district court considered the United States’ claim of immunity solely as it related to Chamberlain. The court did not confine itself to the ratio decidendi found in the Board’s decision, as it was not sitting as a court reviewing Board determinations. Rather, the district court focused on the facilities contracts pursuant to which Chamberlain contracted to operate the Scranton Army Ammunition Plant.¹⁸ As noted “the two contracts . . . denominate Chamberlain ‘an independent contractor and not an agency of the Government’ and employ language fully consistent with that characterization.” 431 F.Supp. at 754. The question before the district court thus became whether Chamberlain, which con-cededly operated the plant and indeed was named as an “independent contractor” in all relevant documents to which it was a party and which were pertinent to its function as Plant operator, was nonetheless a United States “department, agency, or instrumentality” within the meaning and terms of section 313. If so, then upholding the Government’s sovereign immunity contention would result both in the district court being the exclusive forum for any action instituted against Chamberlain and in the disallowance of any fine. See n. 20 infra. If not, i. e., if Chamberlain was not a federal entity under section 313, then Chamberlain, like any other private company, was subject to the jurisdiction of, and sanctions imposed by, the Board.

The district court, after an examination of policy considerations and relevant authorities, particularly Powell v. United States Cartridge Company,19 concluded that as a matter of federal law Chamberlain was not shielded from state environmental proceedings merely because it was operating under a contract made with the federal government. The district court reasoned:

To include Chamberlain, an independent contractor, within [the] definition [of “department, agency, or instrumentality”] 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.

431 F.Supp. at 755. The district court therefore refused to enjoin the Board’s order prescribing a penalty against Chamberlain. Id.

II

We agree with the district court that Chamberlain is not a federal “department, agency, or instrumentality” under section 313 of the Act.²⁰

We find it critical that Chamberlain’s contract with the federal government specifies that it is “an independent contractor and not an agency of the Government,” and that its employees are not government employees.²¹ By contrast, the pollution control requirements prescribed in section 313 apply to a federal “department, agency or instrumentality.” This statutory terminology seems logically to exclude an independent contractor. If there is an ambiguity in the terms of the statute, however, that ambiguity disappears when reference is made to the explicit contractual language of the parties which carefully denotes Chamberlain to be an independent contractor and “not an agency of the Government.”

Admittedly, contract provisions do not necessarily govern a party’s legal status vis-a-vis third parties (here the Board). Yet here the language of the contracting parties is unmistakably clear, and in our opinion was specifically intended to establish the status of the one in relation to the other. In the context of this case, in which the Government would have Chamberlain cloak itself with the mantle of a federal “department, agency or instrumentality” and thereby gain governmental immunity with respect to third parties, the relevant contract terms assume an enhanced significance.

Indeed, in a highly analogous context the Supreme Court found nearly-identical contract language to be “persuasive” and virtually determinative of the issue before it. In Powell v. United States Cartridge Co., 339 U.S. 497, 505-06, 70 S.Ct. 755, 94 L.Ed. 1017 (1950), a private company under contract with the United States claimed that it was a Government agent, and that its employees were Government employees, thereby exempting the employees from the minimum wage and maximum hour provisions of the Fair Labor Standards Act as amended, 29 U.S.C. §§ 201 et seq. In Powell, as here, the private company was a munitions manufacturer which operated a plant owned by the United States. There as here, the company’s work was directed toward producing ammunition solely for the Government, a process whereby the end product as well as the raw materials were owned by the Government. There as here, the relevant contract between the Government and the company designated the company as an independent contractor and not a Government agent. There, as here, the contractor claimed to be shielded from a statute which affected and sought to regulate aspects of health and welfare. Finally, the very issue raised in Powell (whether the contractor’s employees were those of the contractor or of the Government) has, in this case, been unequivocally determined by the actions of the contracting parties when they agreed that all employees were those of Chamberlain and not of the Government.

The Supreme Court in Powell reasoned: The contract .in the Powell case contained the following additional clause:

“Article III-A-Status of Contractor.

“It is expressly understood and agreed by the Contractor and the Government that in the performance of the work provided for in this contract, the Contractor is an independent contractor and in no wise an agent of the Government.” (Emphasis supplied.)

Such provisions are persuasive that the petitioners [employees] should be recognized here as employees of the respective respondents [private companies], and the respondents as independent contractors. The respondents argue, however, that the context of the times, other provisions of the contracts and the practice under the contracts deprive these statements of their ordinary meaning. We find, on the contrary, that each of these sources supplies additional evidence that these provisions correctly state the true relationship between the petitioners and respondents.

For example, we find in these contracts a reflection of the fundamental policy of the Government to refrain, as much as possible, from doing its own manufacturing and to use, as much as possible (in the production of munitions), the experience in mass production and the genius for organization that had made American industry outstanding in the world. The essence of this policy called for private, rather than public, operation of war production plants. ... It would have been simple for the Government to have ordered all of this production to be done under governmental operation as well as under governmental ownership. To do so, however, might have weakened our system of free enterprise. We relied upon that system as the foundation of the general industrial supremacy upon which ultimate victory might depend. In this light, the Government deliberately sought to insure private operation of its new munitions plants.

In these great projects built for and owned by the Government, it was almost inevitable that the new equipment and materials would be supplied largely by the Government and that the products would be owned and used by the Government. It was essential that the Government supervise closely the expenditures made and the specifications and standards established by it. These incidents of the program did not, however, prevent the placing of managerial responsibility upon independent contractors.

The relationship of employee and employer between the worker and the contractor appears not only in the express terminology that has been quoted. It appears in the substantial obligation of the respondent-contractors to train their working forces, make job assignments, fix salaries, meet payrolls, comply with state workmen’s compensation laws and Social Security requirements and “to do all things necessary or convenient in and about the operating and closing down of the Plant, . . . ”

339 U.S. at 505-07, 70 S.Ct. at 760-61 (footnotes omitted) (emphasis in original).

Here as in Powell, the Government has deliberately opted for the “genius” of private enterprise in the operation of its Scranton Army Ammunition Plant. In so choosing, the Government enjoys the benefits that are derived from private operation, but by the same measure, it must also suffer any reciprocal burdens. One of those burdens is the responsibility of Chamberlain’s compliance with state pollution regulations.

In sum we find no significant distinction between this case and Powell. Hence we are persuaded that Powell’s reasoning applies with equal force to the Pennsylvania Board’s attempts to regulate discharges of pollutants resulting from Chamberlain’s operations. Cf. United States v. Boyd, 378 U.S. 39, 44-48, 84 S.Ct. 1518,12 L.Ed.2d 713 (1964) (the use of Government-owned property by a federal contractor for profitable activities is a taxable activity, even if the tax is finally borne by the United States); United States v. City of Detroit, 355 U.S. 466, 469, 78 S.Ct. 474, 476, 2 L.Ed.2d 424 (1958) (“it is well settled that the Government’s constitutional immunity does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government”); Penn Dairies, Inc. v. Pennsylvania Milk Control Commission, 318 U.S. 261, 269, 63 S.Ct. 617, 620, 87 L.Ed. 748 (1943) (independent federal contractor may be regulated, taxed and subject to license revocation by state even though such tax and regulation increases burden on federal government: “those who contract to furnish supplies or render services to the government are not [federal] agencies and do not perform governmental functions”); Alabama v. King & Boozer, 314 U.S. 1, 8-12, 62 S.Ct. 43, 86 L.Ed. 3 (1941) (state may levy sales tax on purchase of goods by contractor who buys them for use in performing “cost-plus” contract for the Government, even though title to materials vests in the United States upon inspection and acceptance, and even though Government reimburses contractor for tax paid). See also United States v. Georgia Public Service Commission, 371 U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317 (1963); Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939) (“the government does not become the conduit of immunity in suits against its agents or instrumentalities merely because they do its work”).²²

Inasmuch as Congress has inclined toward restricting immunity from pollution control even for acknowledged federal agencies,²³ we see no reason to broaden immunity as it relates to the private sector. The recent amendments to section 313 subject any “department, agency or instrumentality of the executive, legislative, and judicial branches” to “all” state and local regulations “notwithstanding any immunity” (albeit permitting removal of proceedings to the federal courts and limiting the payment of certain penalties).²⁴ This amendment confirms our understanding that under the Act even “Federal facilities [must] meet all control requirements as if they were private citizens” in order “to provide national lead-orship in the control of water pollution.”²⁵ If we were to thwart this national policy as well as evident congressional intent²⁶ by acceding to the Government’s argument that independent contractors partake of an immunity as great as that of the Government itself, we would be denying the entire course of environmental pollution control, a fundamental concern of Congress and society. See also E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975), modified, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978).

The order of the district court will be affirmed.²⁷

1 . At the time relevant to the events which underlie this appeal, § 313 of the Act reads as follows:

Federal facilities pollution control

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, including the payment of reasonable service charges. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption.

Pub.L.No.92-500, § 2, 86 Stat.,875 (1972) (prior to 1977 Amendments) (codified at 33 U.S.C.A. § 1323 (Supp.1977)) (current version at 33 U:S. C.A. § 1323 (Feb. 1978 Supp.), quoted in n.24 infra). See n.20 infra.

2 . The parties to the district court proceeding agreed upon virtually all the facts relevant to that proceeding. Their stipulation took the form of 65 findings of fact and is reproduced in haec verba in the district court opinion. 431 F.Supp. at 749-53.

3 . The parties stipulated and the district court thereupon found that “Chamberlain operates the Scranton Army Ammunition Plant under a facilities contract with the United States of America” (emphasis added). Id. at 749, Finding No. 4.

4 . Contract No. DA-36-034-AMC-0163A, Exhibit “A”, fl 1 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79); accord, 431 F.Supp. at 754.

5 . Contract No. DA-36-034-AMC-0163A, pt. I, U 3 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79).

6 . 431 F.Supp. at 750, Finding No. 21.

7 . Id., Finding No. 22.

8 . Id., at 751, Finding No. 43.

9 . Contract No. DA-36-034-AMC-0163A, art. VI, 1) 1 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79) provides that:

The Contractor shall procure all necessary permits and licenses; obey and abide by all applicable laws, regulations and ordinances and other rules of the United States of Amer-ica, of the state, territory, or subdivision thereof wherein the work is done, or of any other duly constituted public authority.

10 . Contract No. DAAA09-71-C-0257, at 47, art. IV-D, H 3 (effective July 1, 1971) (District Court Docket # 80) (emphasis added).

11 . The original defendants in the State Board action were three: Robert E. Froehlke, the Secretary of the Army; Lt. Col. Daniel E. Duggan, the Commanding Officer of the facility; and Chamberlain. The complaint against the Secretary was dismissed by the Board for want of personal jurisdiction. App. 38. The complaint against Lt. Col. Duggan, while upheld by the Board, was withdrawn in the district court by stipulation of the parties. App. 39. Thus, Chamberlain is the sole party against whom the Board’s fine was levied.

12 . Pa.Stat.Ann. tit. 35, §§ 691.1 et seq. (Purdon 1977).

13 . 431 F.Supp. at 752, Finding No. 57.

14 . The Board addressed the sovereign immunity issue as follows:

Whether the action is so barred depends upon whether the individual Defendants can be said to have been violating the Clean Streams Law and the regulations promulgated thereunder in the course of their duties as federal officials and contractors, or whether in doing so they were acting outside the scope of their duties as federal officials. If the Defendant [sic] were acting entirely outside the scope of their authority, then the suit cannot be viewed as one against the United States.

Board Op. at 6-7, reproduced at App. 22-23. The Board concluded that the defendants’ conduct was beyond the scope of their authority as agents of the United States, and to that extent jurisdiction to assess civil penalties was not barred by sovereign immunity (App. 28).

15 . The United States also sought review of the Board’s decision through the prescribed channels: an appeal to the Pennsylvania Commonwealth Court. As represented to us at the oral argument of this case, that appeal to the Commonwealth Court was quashed as untimely filed. Thus no state proceeding is presently pending, and we are therefore not confronted with the question as to whether these federal civil proceedings should be dismissed under the comity doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. For a general discussion of the applicability of Younger to civil proceedings, see Note, Younger Grows Older: Equitable Abstention in Civil Proceedings, 50 N.Y.U.L.Rev. 870 (1975). Nor are we here faced with a question of abstention under Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See generally Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974). Neither have the parties on appeal raised or argued the question of whether the now-final determination of the Pennsylvania Environmental Hearing Board precludes further inquiry into the matters raised on this appeal under principles of res judicata. See United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Seatrain Lines, Inc. v. Pennsylvania R. Co., 207 F.2d 255 (3d Cir. 1953) (giving res judicata effect to a decision of the Interstate Commerce Commission). We therefore do not treat with this question. For discussions of the applicability of the doctrine of res judicata to administrative decisions, see Painters Dist. Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081 (5th Cir. 1969); 2 K. Davis, Administrative Law Treatise ch. 18 (1958 & Supp.1970) (the applicability of res judicata to administrative judgments may depend upon many factors, including inter alia the agency’s expertise in deciding the particular issue, the legislative intent concerning the allocation of decision-making, and the fullness and fairness of the agency litigation).

16 . See n. 2 supra.

17 . See n. 11 supra.

18 . Contract DA-36-034 — AMC-0163A (District Court Docket # 79) covered the period from June 13, 1963 through June 30, 1971. Contract DAAA09-71-C-0257 (District Court Docket # 80) covers July 1, 1971 through at least the date of the district court decision. 431 F.Supp. at 749, Finding Nos. 5 & 6.

19 . 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1950). In Powell the Supreme Court ruled that employees of an independent contractor who manufactured munitions for the federal government were not federal employees; nor was the contractor a federal agency. Hence the Court held that the employees were not excluded from coverage under the minimum wage and maximum hour provisions of the Fair Labor Standards Act. The district court recognized, as do we, that Powell presents a situation highly analogous to the instant case. See pp. 1278-1280 infra.

The district court found further support for its position in Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939), and in two court of appeals cases which declined to extend immunity from tort liability to private munitions manufacturers who were “intimate[ly] connect[ed]” with the Federal Government. 431 F.Supp. at 754, citing Foster v. Day & Zimmermann, Inc., 502 F.2d 867 (8th Cir. 1974) and Whitaker v. Har-vell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969).

20 . It is unclear to us precisely what advantages would accrue to a federal “department, agency or instrumentality” under the unamended version of § 313, quoted in n. 1 supra. The statute provides that a federal entity must comply with pollution control and abatement “requirements” “to the same extent that any person is subject to such requirements.” This language would seem to erase any distinction between the treatment of federal and nonfederal entities. See S.Rep.No.414, 92d Cong., 1st Sess. 67, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3668, 3733-34, quoted in n. 26 infra. Yet in two cases of now questionable vitality, the Supreme Court has rejected this interpretation, and ruled that any waiver of sovereign immunity must be clearly stated and strictly construed. See n. 22 infra. Presumably therefore, under the unamended statute and under traditional notions of sovereign immunity, a federal agent is (at the least) immune from an environmental enforcement proceeding unless brought in federal court, and could not be fined in any forum. See 431 F.Supp. at 754-55.

Under the amended § 313, quoted in n. 24 infra, the status of such a federal entity is clear. It must conform to all “substantive or procedural” pollution requirements; it may be sued in any forum but retains a right of removal to federal court; and its immunity from fines is recognized.

21 . See p. 1274 & nn. 4-5 supra.

22 . Two recent Supreme Court decisions are also marginally relevant insofar as they rule that a waiver of sovereign immunity, and the resultant amenability of a federal agency to state regulation, will not be found absent “a clear expression or implication to that effect.” Hancock v. Train, 426 U.S. 167, 179, 96 S.Ct. 2006, 2012, 48 L.Ed.2d 555 (1976), superseded by statute, Pub.L.No.95-96, tit. I, § 116, 91 Stat. 711 (1977) codified as amended at 42 U.S.C.A. § 7418 (Nov. 1977 Supp.)), quoting United States v. Wittek, 337 U.S. 346, 359, 69 S.Ct. 1108, 93 L.Ed. 1406 (1949); accord, EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), superseded by statute, Pub. L.No.95-217, § 60, 91 Stat. 1597 (1977) (codified as amended at 33 U.S.C.A. § 1323(a) (Feb. 1978 Supp.)). Yet whatever their vitality, Hancock and EPA do not treat with the issue of whether or when a private company becomes converted into a federal agency by virtue of contracting with the Government. Hancock and State Water Resources Control Bd. held only that federal agencies need not procure state air and water pollution control permits. Even those holdings, as indicated, have now been effectively overruled by statute.

23 . See n.l supra & n.24 infra.

24 . Section 313 as amended reads in relevant part:

(a) 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 and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable services charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. Nothing in this section shall be construed to prevent any department, agency, or instrumentality of the Federal Government, or any officer, agent, or employee thereof in the performance of his official duties, from removing to the appropriate Federal district court any proceeding to which the department, agency, or instrumentality or officer, agent, or employee thereof is subject pursuant to this section, and any such proceeding may be removed in accordance with section 1441 et seq. of Title 28. No officer, agent, or employee of the United States shall be personally liable for any civil penalty arising from the performance of his official duties, for which he is not otherwise liable, and the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemptions shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption. In addition to any such exemption of a particular effluent source, the President may, if he determines it to be in the paramount interest of the United States to do so, issue regulations exempting from compliance with the requirements of this section any weaponry, equipment, aircraft, vessels, vehicles, or other classes or categories of property, and access to such property, which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State, and which are uniquely military in nature. The President shall reconsider the need for such regulations at three-year intervals.

Pub.L.No.95-217, § 60, 91 Stat. 1597 (1977) (codified as amended at 33 U.S.C.A. § 1323(a) (Feb. 1978 Supp.)), superseding EPA v. California ex rel. Status Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Cf. Clean Water Act of 1977, Pub. L.No.95-217, 91 Stat. 1566 (codified in scattered sections of 33 U.S.C.A. ch. 26 (Feb. 1978 Supp.)); 46 U.S.L.W. 2324 (Dec. 20, 1977) (regional office of the EPA has recently issued environmental enforcement letters to seventeen major federal facilities said to be violating environmental standards, thereby instituting “the first formal action under a recently announced agency policy of enforcing the federal Clean Air and Water Pollution Control Acts against federal facilities”).

25 . S.Rep.No.414, 92d Cong., 1st Sess. 67, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3733-34.

26 . In its brief the Government seeks to support its argument by citing to certain fragments of legislative history which state that § 313 was enacted to subject federal activities, carried on directly or “by contract,” to state pollution control. Government’s Brief at 11-12, citing H.R.Rep.No. 127, 91st Cong., 1st Sess. 6, 19-20, reprinted in [1970] U.S.Code Cong. & Admin. News, pp. 2691, 2696, 2710-11, and H.R.Con. Rep.No.940, 91st Cong., 2d Sess. 55, reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 2691, 2740. We find this history to be ambiguous and inconclusive.

First we believe that § 313 is clear and unambiguous as it relates to subjecting federal agencies to state and local environmental controls. As such, Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), and Schiaffo v. Helstoski, 492 F.2d 413, 428 (3d Cir. 1974), teach us that recourse to legislative history is inappropriate. See generally 2A C. Sands, Sutherland’s Statutes and Statutory Construction [fff 46.01, 46.04 (4th ed. 1973); Frankfurter, Some Reñections on the Reading of Statutes, 47 Colum.L.Rev. 527, 527-28 (1947); Murphy, Old Maxims Never Die: The “Plain-Meaning Rule’’ and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L.Rev. 1299 (1975).

Second, even if we were to look to legislative history, we would not agree with the Government’s construction.

The Government would interpret the language quoted above to carve out a partial immunity for the private independent contractor under § 313. We think however that this language does not address the status of the operator of a federal facility; nor does it attempt to equate a private contractor with a federal agent. Rather, we believe that its import is to acknowledge that all federal activities and operations are subject to pollution control requirements. We read this language as no more than one of the many attempts made by the legislature to broaden the scope of permissible state and local regulation, and not, incongruously, as an attempt to narrow state control by impliedly carving out immunity for independent contractors. See, e. g., S.Rep.No,414, 92d Cong., 1st Sess. 67, reprinted in [1972] U.S. Code Cong. & Admin.News, pp. 3733-34 (§ 313 “would require every Federal agency with control over any activity or real property, to provide national leadership in the control of water pollution in such operations. . This section requires that Federal facilities meet all control requirements as if they were private citizens”).

27 . The dissent advocates a remand so that the district court may make findings as to which functions of the plant’s operations are in Chamberlain’s control, and therefore are not immune from state regulation, and which functions should be attributed to the federal Government’s control and are therefore presumably immune. As the text above reveals, we are satisfied beyond question that, on the record before us, Chamberlain is clearly an independent contractor and is not a “department, agency or instrumentality” of the Government. As such, Chamberlain cannot in the present context be shielded from the state proceedings.

While we recognize a certain surface attraction in the dissent’s “allocation of functions” approach, there are major problems inherent in such a procedure.

First, to our knowledge the Government declined to present before the Board any proof as to which plant functions were “governmental functions”. Whether such proof would have affected the amount of the penalty is not relevant to the present proceeding, for here we are faced not with an appeal from the Board’s decision, but rather with an injunctive action which seeks a ruling that the Board had no jurisdiction even in a situation where private violations based upon “private functions” may have been found. Moreover even if we were to interpret the relief sought by the Government as an effort to reduce the amount of the penalty imposed by the Board because in the Government’s view certain functions should have been characterized as governmental rather than private, it must be remembered that the Board at no time “allocated” the penalty on a “functional basis.” Indeed, as stated above, the Government failed to offer proofs in that regard. In any case, we have grave doubts whether on this record we would be empowered to grant such a remedy.

Second, sections 313 and 505 of the Act speak only to the institution of an action in federal district court where a “department, agency or instrumentality” of the Government is involved. Those sections do not provide for any “allocation of function” inquiry; nor do they provide for any type of “partial immunity.” A fortiori they do not require a state to proceed in federal court to rectify private violations by parties such as Chamberlain.

Finally we note that even the parties did not regard as important or relevant findings allocating functions to Chamberlain or to the Government, since they submitted the case to the district court on stipulated facts.

Accordingly, the only issue before us requires our review of the district court’s order of summary judgment entered on undisputed facts. That order concludes that Chamberlain was not a “department, agency or instrumentality” of the Government. We therefore believe that little purpose would be served by, and seriously question our ability to require a remand to the Board for a quantitative allocation of functions, particularly since the contract between Chamberlain and the Government clearly sets forth both Chamberlain’s status, and its obligations to comply with state and local law.