B-163826, APRIL 22, 1968, 47 COMP. GEN. 577

B-163826, APRIL 22, 1968, 47 COMP. GEN. 577

FEES - LICENSE, PERMIT, ETC., FEES - PROHIBITION THE FEE IMPOSED BY A MONTANA STATE STATUTE TO CERTIFY BUREAU OF RECLAMATION WATER AND WASTE WATER OPERATORS RESPONSIBLE FOR IMPLEMENTING FEDERAL WATER POLLUTION PROGRAMS MAY NOT BE PAID BY THE BUREAU FROM APPROPRIATED FUNDS, ABSENT AUTHORITY FOR PAYMENT OF SUCH FEES IN THE FEDERAL WATER POLLUTION CONTROL ACT, IN VIEW OF THE PRINCIPLE, BASED ON THE SUPREMACY CLAUSE, ARTICLE VI, CLAUSE 2, OF THE CONSTITUTION, THAT A STATE CANNOT REQUIRE FEDERAL EMPLOYEES TO OBTAIN LICENSES OR PERMITS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES WHEN THEY ARE ENGAGED IN OCCUPATIONS WHICH ARE THE SUBJECT OF STATE REGULATIONS APPLICABLE TO THE GENERAL PUBLIC.

TO C. H. LUCAS, DEPARTMENT OF THE INTERIOR, APRIL 22, 1968:

THIS IS IN REPLY TO YOUR LETTER OF MARCH 12, 1968, WITH WHICH YOU FORWARDED FOR ADVANCE DECISION A VOUCHER DRAWN IN FAVOR OF THE MONTANA BOARD OF CERTIFICATION FOR WATER AND WASTE WATER OPERATORS IN THE AMOUNT OF $36 REPRESENTING FEES REQUIRED TO ACCOMPANY THE APPLICATION OF BUREAU OF RECLAMATION EMPLOYEES FOR CERTIFICATION AS WATER AND WASTE WATER OPERATORS.

YOU HAVE REVIEWED THE DECISIONS OF THIS OFFICE REPORTED IN 3 COMP. GEN. 663 AND 6 COMP. GEN. 432 AND DO NOT FEEL THAT YOU MAY PROPERLY CERTIFY THE VOUCHER. HOWEVER, YOU STATE THAT PAYMENT REQUESTED BY THE STATE OF MONTANA MAY BE JUSTIFIED BECAUSE OF THE CIRCUMSTANCES SET OUT IN THE MEMORANDUM ENCLOSED WITH YOUR LETTER AND THE LANGUAGE OF THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED, 33 U.S.C. 466, ET SEQ.

THE IMPORTANCE AND MAGNITUDE OF THE WATER POLLUTION PROGRAM INSTIGATED BY THE DEPARTMENT OF THE INTERIOR AND THE BUREAU OF RECLAMATION LEADS THE REGIONAL DIRECTOR OF THE BUREAU OF RECLAMATION TO BELIEVE THAT THE BUREAU OF RECLAMATION SHOULD PAY THE FEES.

IT IS STATED IN THE MEMORANDUM ENCLOSED WITH YOUR LETTER THAT BEGINNING WITH THE WATER POLLUTION CONTROL ACT OF 1948, CONGRESS HAS BEEN ATTEMPTING TO ESTABLISH AN EFFECTIVE PROGRAM FOR WATER POLLUTION CONTROL. IN SEARCH OF A MORE EFFECTIVE PROGRAM, THAT ACT HAS BEEN AMENDED IN 1956, 1965 AND 1966. THE DECLARED POLICY OF CONGRESS UNDER THE ACT IS TO RECOGNIZE, PRESERVE, AND PROTECT THE PRIMARY RESPONSIBILITIES AND RIGHTS OF THE STATES IN PREVENTING AND CONTROLLING WATER POLLUTION. THE ACT SPECIFICALLY PROVIDES THAT IT SHALL NOT BE CONSTRUED AS IMPAIRING OR IN ANY MANNER AFFECTING ANY RIGHT OR JURISDICTION OF THE STATES WITH RESPECT TO THE WATERS (INCLUDING BOUNDARY WATERS) OF THE STATES. SECTION 10 OF THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED, 33 U.S.C. 466G, PROVIDES PROCEDURES FOR THE ADOPTION OF WATER QUALITY CRITERIA FOR INTERSTATE WATERS WITHIN THE STATES AND FOR THE IMPLEMENTATION AND ENFORCEMENT OF THE WATER QUALITY CRITERIA ADOPTED.

IT IS ALSO STATED IN THE MEMORANDUM THAT THE STATE OF MONTANA HAS BEEN WORKING TOWARD THE EFFECTIVE ABATEMENT OF WATER POLLUTION WITHIN THE STATE THROUGH THE ADOPTION OF WATER QUALITY STANDARDS. A 1967 ENACTMENT OF THE MONTANA STATE LEGISLATURE REQUIRES ALL WATER AND WASTE WATER OPERATORS IN THE STATE TO BE CERTIFIED BECAUSE OF A FINDING THAT HEALTH AND WELFARE ARE JEOPARDIZED WHEN NONQUALIFIED PERSONS ARE OPERATING WATER TREATMENT AND WASTE WATER TREATMENT FACILITIES. WATER AND WASTE WATER TREATMENT FACILITIES IN THE STATE OF MONTANA ARE LOCATED WITHIN REGION 6 OF THE BUREAU OF RECLAMATION AT YELLOWTAIL DAM AND CANYON FERRY DAM.

THE MEMORANDUM FURTHER STATES THAT THE WATER POLLUTION CONTROL ACT AND EXECUTIVE ORDER NO. 11288, 31 F.R. 9261, REQUIRE FEDERAL INSTALLATIONS TO PROVIDE SECONDARY TREATMENT OR ITS EQUIVALENT FOR ALL WASTES EXCEPT COOLING WATER AND FISH HATCHERY EFFLUENTS. THE BUREAU OF RECLAMATION MAINTAINS SURVEILLANCE AND REVIEWS ACTIVITIES TO ASSURE THAT POLLUTION CONTROL STANDARDS ARE MET ON A CONTINUING BASIS AND THAT FEDERAL DEPARTMENTS AND AGENCIES, CONSISTENT WITH UNITED STATES INTERESTS AND AVAILABLE APPROPRIATIONS, COOPERATE WITH THE SECRETARY OF THE INTERIOR AND WITH STATE AND INTERSTATE AGENCIES AND MUNICIPALITIES IN PREVENTING OR CONTROLLING WATER POLLUTION.

IT IS ALSO STATED IN THE MEMORANDUM THAT THE TREATMENT FACILITIES AT YELLOWTAIL AND CANYON FERRY WILL PROVIDE THE EQUIVALENT OF SECONDARY TREATMENT IF PROPERLY OPERATED. POLLUTION CAN OCCUR WITH THE BEST OF FACILITIES IF IMPROPERLY OPERATED. THERFORE TRAINING AND CERTIFICATION OF THE OPERATORS WOULD BE A STEP FORWARD IN FEDERAL AND STATE COOPERATION. UNDER THE STATE LAW AN INITIAL AND ANNUAL FEE IS CHARGED BY THE STATE FOR CERTIFICATION. THE MONEY COLLECTED IS DEPOSITED BY LAW WITH THE STATE TREASURER IN THE "WATER AND WASTE WATER OPERATORS CERTIFICATION EXAMINING BOARD ACCOUNT" TO PAY THE EXPENSES OF THE BOARD AND FOR NO OTHER PURPOSE.

YOU ALSO ENCLOSED A COPY OF A LETTER DATED JANUARY 3, 1968, TO THE REGIONAL DIRECTOR OF THE BUREAU OF RECLAMATION, BILLINGS, MONTANA, FROM THE SECRETARY OF THE MONTANA BOARD OF CERTIFICATION FOR WATER AND WASTE WATER OPERATORS WHICH INCLUDED A COPY OF THE 1967 ENACTMENT OF THE MONTANA STATE LEGISLATURE, SECTIONS 5901 THROUGH 5912 OF TITLE 69, REVISED CODE OF MONTANA, RELATING TO ,CERTIFICATION OF MONTANA WATER AND WASTE WATER PLANTS AND DISTRIBUTION SYSTEM OPERATORS.'

IT APPEARS FROM THAT LETTER AND FROM THE ENACTMENT THAT CERTIFICATION IS REQUIRED OF ALL WATER TREATMENT, WATER DISTRIBUTION SYSTEMS AND WASTE WATER TREATMENT OPERATORS IN MONTANA THAT ARE IN RESPONSIBLE CHARGE OF THEIR PLANTS. PERSONS EMPLOYED ON JULY 1, 1967, ARE ELIGIBLE FOR CERTIFICATION WITHOUT EXAMINATION FOR THE PARTICULAR JOB THAT THEY WERE DOING AT THAT PARTICULAR PLANT ON THAT DATE. HOWEVER, SUCH PERSONS MUST COMPLETE AN APPLICATION AND SUBMIT IT WITH A CERTIFICATE OF EMPLOYMENT AND THE NECESSARY FEES. THE FEE IS BASED UPON THE CLASSIFICATION OF THE PLANT AND DISTRIBUTION SYSTEMS AT WHICH THE OPERATOR IS EMPLOYED. THE CERTIFICATE ATTESTS TO THE COMPETENCY OF THE OPERATOR AND INCLUDES THE CLASSIFICATION OF THE WORKS WHICH HE IS QUALIFIED TO SUPERVISE. CERTIFICATES ARE TO BE ISSUED FROM THE FIRST DAY OF JULY EACH YEAR THROUGH THE FOLLOWING 30TH DAY OF JUNE. AFTER PAYMENT OF THE INITIAL FEE EACH CERTIFICATE HOLDER IS TO PAY ON OR BEFORE THE FIRST DAY OF EACH CERTIFICATE YEAR A RENEWAL FEE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:

CLASS I - TWENTY DOLLARS ($20)

CLASS II - FIFTEEN DOLLARS ($15)

CLASS III - TEN DOLLARS ($10)

CLASS IV - FIVE DOLLARS ($5)

CLASS V - THREE DOLLARS ($3)

SECTION 5911 OF TITLE 69 OF THE REVISED CODES OF MONTANA MAKES IT UNLAWFUL, 1 YEAR FOLLOWING THE EFFECTIVE DATE OF THE ACT, TO OPERATE A TREATMENT PLANT OR DISTRIBUTION SYSTEM WITHOUT A CERTIFIED OPERATOR AND ALSO MAKES IT UNLAWFUL FOR ANY PERSON TO PERFORM THE DUTIES OF AN OPERATOR WITHOUT BEING DULY CERTIFIED. SECTION 5912 PROVIDES FURTHER THAT "ANY PERSON, FIRM, OR CORPORATION, BOTH MUNICIPAL AND PRIVATE, VIOLATING ANY PROVISIONS OF THIS ACT OR THE RULES AND REGULATIONS ADOPTED HEREUNDER IS GUILTY OF A MISDEMEANOR. EACH DAY OF OPERATION IN VIOLATION OF THIS ACT OR ANY RULES AND REGULATIONS ADOPTED HEREUNDER SHALL CONSTITUTE A SEPARATE OFFENSE.' THE LISTING OF THOSE COVERED BY THIS PENAL PROVISION IS SIMILAR TO THE LISTING IN SECTION 5911 RELATING TO UNLAWFUL OPERATION. NEITHER LISTING PURPORTS TO INCLUDE THE UNITED STATES.

NOTIWTHSTANDING THE STATEMENT APPEARING IN THE MEMORANDUM ATTACHED TO YOUR LETTER, WE HAVE FOUND NOTHING IN THE STATE LAW WHICH PURPORTS TO PROVIDE TRAINING FOR THE OPERATORS TO WHOM LICENSES ARE ISSUED.

WE HAVE CAREFULLY EXAMINED THE PROVISIONS OF THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED. ALTHOUGH THERE ARE MANY REFERENCES TO THE STATES AND THE APPROPRIATION OF SUMS OF MONEY FOR GRANTS TO STATES AND INTERSTATE AGENCIES AND FOR ALLOTMENTS TO THE STATES ARE AUTHORIZED, WE DO NOT FIND ANYTHING WHICH SPECIFICALLY OR BY NECESSARY IMPLICATION WOULD AUTHORIZE THE UNITED STATES TO PAY FEES SUCH AS ARE HERE INVOKED. IN THE ABSENCE OF SOME SUCH CONGRESSIONAL AUTHORIZATION, THE DECISIONS REPORTED IN 3 COMP. GEN. 663, AND 6 COMP. GEN. 432, WHICH YOU CITED IN YOUR LETTER ARE CONTROLLING.

THE FIRST OF THOSE CASES 3 COMP. GEN. 663 CONCLUDED THAT CREDIT COULD NOT BE ALLOWED IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF THE POSTMASTER AT BROOKLYN, NEW YORK, IN THE AMOUNT OF $15 PAID TO THREE POST OFFICE CLERKS AS REIMBURSEMENT FOR THE AMOUNT EXPENDED BY THEM FOR PERMITS ISSUED BY THE FIRE DEPARTMENT OF THE CITY OF NEW YORK COVERING CERTIFICATES OF FITNESS TO TAKE CHARGE OF GASOLINE PUMPS AT THE BROOKLYN POST OFFICE. THE DECISION POINTED OUT THAT THE UNIFORM HOLDING OF THE ACCOUNTING OFFICERS HAS BEEN THAT A STATE MAY NOT REQUIRE FEDERAL EMPLOYEES TO OBTAIN LICENSES OR PERMITS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES WHEN THEY ARE ENGAGED IN OCCUPATIONS WHICH ARE THE SUBJECT OF STATE REGULATIONS APPLICABLE TO THE GENERAL PUBLIC.

THE DECISION QUOTED FROM THE CASE OF JOHNSON V MARYLAND, 254 U.S. 51 (1920), WHICH HELD THAT AN EMPLOYEE OF THE POST OFFICE DEPARTMENT OF THE UNITED STATES WAS IMPROPERLY ARRESTED, CONVICTED, AND FINED FOR DRIVING A MOTOR TRUCK IN THE TRANSPORTATION OF MAIL OVER A POST ROAD FROM MT. AIRY, MARYLAND, TO WASHINGTON, D.C., WITHOUT HAVING OBTAINED A LICENSE FROM THE STATE. THE QUESTION AS STATED BY THE COURT WAS:

* * * THE FACTS WERE ADMITTED AND THE NAKED QUESTION IS WHETHER THE STATE HAS POWER TO REQUIRE SUCH AN EMPLOYEE TO OBTAIN A LICENSE BY SUBMITTING TO AN EXAMINATION CONCERNING HIS COMPETENCE AND PAYING THREE DOLLARS, BEFORE PERFORMING HIS OFFICIAL DUTY IN OBEDIENCE TO SUPERIOR COMMAND. THE COURT CONCLUDED BY SAYING:

IT SEEMS TO US THAT THE IMMUNITY OF THE INSTRUMENTS OF THE UNITED STATES FROM STATE CONTROL IN THE PERFORMANCE OF THEIR DUTIES EXTENDS TO A REQUIREMENT THAT THEY DESIST FROM PERFORMANCE UNTIL THEY SATISFY A STATE OFFICER UPON EXAMINATION THAT THEY ARE COMPETENT FOR A NECESSARY PART OF THEM AND PAY A FEE FOR PERMISSION TO GO ON. SUCH A REQUIREMENT DOES NOT MERELY TOUCH THE GOVERNMENT SERVANTS REMOTELY BY A GENERAL RULE OF CONDUCT; IT LAYS HOLD OF THEM IN THEIR SPECIFIC ATTEMPT TO OBEY ORDERS AND REQUIRES QUALIFICATIONS IN ADDITION TO THOSE THAT THE GOVERNMENT HAS PRONOUNCED SUFFICIENT. IT IS THE DUTY OF THE DEPARTMENT TO EMPLOY PERSONS COMPETENT FOR THEIR WORK AND THAT DUTY IT MUST BE PRESUMED HAS BEEN PERFORMED.

THAT DECISION OF THE SUPREME COURT, WHICH FOLLOWED EARLIER DECISIONS OF THAT COURT, HAS BEEN CITED AND FOLLOWED BY THE ACCOUNTING OFFICERS AND BY THE COURTS FOR MANY YEARS. SEE MAYO V UNITED STATES, 319 U.S. 441 (1943), LESLIE MILLER, INC., V ARKANSAS, 352 U.S. 187 (1956), PUBLIC UTILITIES COMMISSION OF CALIFORNIA V UNITED STATES, 355 U.S. 534 (1958).

THE PRINCIPLE OF THESE DECISIONS IS BASED UPON THE SUPREMACY CLAUSE, ARTICLE VI, CLAUSE 2, OF THE CONSTITUTION OF THE UNITED STATES. WITH REFERENCE TO THAT CLAUSE THE SUPREME COURT STATED IN MCCULLOCH V THE STATE OF MARYLAND, 4 WHEAT. 316, 436 (1819):

THE COURT HAS BESTOWED ON THIS SUBJECT ITS MOST DELIBERATE CONSIDERATION. THE RESULT IS A CONVICTION THAT THE STATES HAVE NO POWER, BY TAXATION OR OTHERWISE, TO RETARD, IMPEDE, BURDEN, OR IN ANY MANNER CONTROL, THE OPERATIONS OF THE CONSTITUTIONAL LAWS ENACTED BY CONGRESS TO CARRY INTO EXECUTION THE POWERS VESTED IN THE GENERAL GOVERNMENT. THIS IS, WE THINK THE UNAVOIDABLE CONSEQUENCE OF THAT SUPREMACY WHICH THE CONSTITUTION HAS DECLARED.

IN ADDITION TO 6 COMP. GEN. 432, ALSO CITED IN YOUR LETTER, WHICH HELD THAT FUNDS APPROPRIATED FOR THE GOVERNMENT PRINTING OFFICE WERE NOT AVAILABLE TO PAY FOR DRIVERS' PERMITS TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE REGULARLY ASSIGNED BY THE PUBLIC PRINTER TO OPERATE GOVERNMENT-OWNED MOTOR VEHICLES IN THE DISCHARGE OF OFFICIAL DUTY, SEE THE FOLLOWING:

22 COMP. GEN. 537 WHICH HELD THAT EMPLOYEES OF THE OFFICE OF CIVILIAN DEFENSE, WHO HAD BEEN DESIGNATED TO SERVE AS GUARDS IN THE SUPPLY DEPOT AT CHICAGO, ILLINOIS, IF REQUIRED TO CARRY FIREARMS FOR THE PROTECTION OF FEDERAL PROPERTY, WERE NOT REQUIRED TO COMPLY WITH AN ORDIANCE OF THE CITY OF CHICAGO, WHICH REQUIRED ANYONE CARRYING FIREARMS TO HOLD A SPECIAL POLICE COMMISSION, THEREFORE APPROPRIATIONS FOR THE EXPENSES OF THE OFFICE FOR EMERGENCY MANAGEMENT WERE NOT AVAILABLE FOR THE PAYMENT OF A FEE FOR SUCH A COMMISSION.

31 COMP. GEN. 81 WHICH HELD THAT APPROPRIATED FUNDS COULD NOT BE USED TO REIMBURSE AN EMPLOYEE OF THE FOREST SERVICE IN THE AMOUNT OF $2 FOR EXAMINATION AS A PROJECTIONIST AND A LIKE AMOUNT FOR A LICENSE WHICH HE HAD PAID TO THE COMMONWEALTH OF PENNSYLVANIA TO OPERATE A 16 MM. MOTION PICTURE PROJECTOR WHEN THE EMPLOYEE'S DUTIES REQUIRED HIM TO OPERATE SUCH A PROJECTOR.

46 COMP. GEN. 695 WHICH HELD THAT APPROPRIATED FUNDS WERE NOT AVAILABLE TO PAY STATE LICENSE FEES FOR MEDICAL DOCTORS OF THE PUBLIC HEALTH SERVICE WHO ARE DETAILED OR ASSIGNED TO WORK WITH STATE OR LOCAL HEALTH AGENCIES.

IT NECESSARILY MUST BE CONCLUDED THAT THE VOUCHER INVOLVED MAY NOT BE CERTIFIED FOR PAYMENT.