State of Mo. v. City of Glasgow, 97-2279

Citation152 F.3d 802
Decision Date10 August 1998
Docket NumberNo. 97-2279,97-2279
Parties, 28 Envtl. L. Rep. 21,540 STATE OF MISSOURI; Missouri Department of Natural Resources, the Missouri Clean Water Commission, Plaintiffs-Appellants, v. CITY OF GLASGOW, a Missouri Corporation, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Kara L. Johnson, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Attorney General, on the brief), for Plaintiffs-Appellants.

Patrick Cronan, Columbia, MO, argued, for Defendant-Appellee.

Before RICHARD S. ARNOLD, 1 Chief Judge, and WOLLMAN and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

The State of Missouri (the state) appeals the district court's order granting summary judgment to the City of Glasgow, Missouri (Glasgow), claiming that the court erred in failing to grant declaratory and injunctive relief against Glasgow for violations of the Federal Clean Water Act and in ruling that a state statute requiring Glasgow to pay permit fees to operate its water treatment facility violates the Missouri Constitution. The state also claims that the district court improperly ordered it to issue Glasgow a permit for its water treatment facility. We reverse and remand.

I. Factual and Procedural Background

Glasgow operates a water treatment facility that provides drinking water to its residents. Glasgow pumps water from the Missouri River into the facility, treats the water to make it suitable for drinking, and then pumps some water back into the river. As part of this treatment process, the facility also discharges the precipitated solids formed during the treatment process, referred to as sludge, back into the Missouri River. Glasgow's water treatment facility is regulated by state and federal water pollution laws. The facility is considered a "point source" under the Federal Clean Water Act and Missouri state clean water laws because it discharges sludge into the Missouri River. See 33 U.S.C. § 1362(6),(14) (1994); Mo. Ann. Stat. § 644.016(8), (9) (West 1998). Under both sovereigns' laws, a point source (like Glasgow's facility) is required to have an operating permit in order to lawfully discharge sludge into a river. 33 U.S.C. §§ 1311(a), 1342; Mo. Ann. Stat. § 644.051.2. In Missouri, a point source must apply to the Missouri Clean Water Commission for the necessary operating permit because the state has chosen to administer its own permit program, an option authorized by federal law. See Mo. Ann. Stat. § 644.026.1(13); 33 U.S.C. § 1342(b). Pursuant to § 1342(b), the administrator of the federal Environmental Protection Agency approved Missouri's submitted plan, and hence the issuance of a Missouri state permit constitutes compliance with the federal statute's national pollutant discharge elimination system. Glasgow had such a permit to discharge sludge into the Missouri River until 1995, when its permit expired. Glasgow then applied for a new permit from the state, but refused to pay the enhanced $1,500 annual permit fee required by an amended state statute. See Mo. Ann. Stat. § 644.052.2(5). Because Glasgow would not pay the fee, the state refused to issue a permit for Glasgow's water treatment facility.

After sending Glasgow notices of its failure to pay the fee and to obtain a permit, the state filed a complaint in federal district court against Glasgow, alleging: (1) that Glasgow is violating federal law by discharging sludge from its water treatment facility into the Missouri River without a permit; and (2) that Glasgow had failed to pay permit fees required by state law. The state sought injunctive and declaratory relief on its claim that Glasgow is violating federal law and sought money damages for Glasgow's failure to pay permit fees. In its answer, Glasgow admitted the factual allegations in the complaint regarding its discharge of sludge into the Missouri River and its operation of the water treatment facility without a permit, but asserted that it did not have to pay the permit fees because the state statute requiring the fees violated the Hancock Amendment to the Missouri Constitution. See Mo. Const. art. 10, § 21. Glasgow also asserted a counterclaim, requesting the district court to order the State to issue it a permit.

The parties then filed cross-motions for summary judgment. The district court granted the state's motion, ruling that the Hancock Amendment did not prevent the state from charging Glasgow a fee to obtain the permit necessary to operate its water treatment facility. See Missouri v. City of Glasgow, 932 F.Supp. 243, 245 (W.D.Mo.1996), vacated on reconsideration, 966 F.Supp. 905 (W.D.Mo.1997). Glasgow then filed a motion for reconsideration, arguing that an intervening Supreme Court of Missouri decision, Missouri Municipal League v. State of Missouri, 932 S.W.2d 400 (Mo.1996), required the district court to reverse its ruling regarding Glasgow's Hancock Amendment defense to the state's collection of permit fees. The district court granted the motion, vacated its prior ruling, granted Glasgow summary judgment, and ordered the state to issue Glasgow a permit for its water treatment facility. See Missouri v. City of Glasgow, 966 F.Supp. 905, 907 (W.D.Mo.1997). The state appeals, claiming that Glasgow is operating its water treatment facility in violation of federal law and that the Hancock Amendment does not prevent the state from requiring Glasgow to pay the permit fees. The state also argues that even if the Hancock Amendment prevents it from requiring Glasgow to pay the permit fees, the district court improperly ordered it to issue Glasgow a permit.

II. Analysis

"We review the district court's grant of summary judgment de novo. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Bremen Bank & Trust Co. v. United States, 131 F.3d 1259, 1264 (8th Cir.1997) (citations omitted). Because the parties agree that the material facts are not in dispute, our review is limited to the question of whether the district court correctly applied the law to these facts.

A. The Federal Law Claim

The state first argues that the district court erred in failing to grant declaratory and injunctive relief on its claim that Glasgow is violating federal law. The state contends that Glasgow is violating the Federal Clean Water Act by discharging sludge from its water treatment facility into the Missouri River without an operating permit. We agree.

The state brought this claim as a "citizen" under the "citizen suit" provision of the Federal Clean Water Act. See J.A. at 6; 33 U.S.C. § 1365(a). 2 The state requested injunctive and declaratory relief for Glasgow's alleged violation of federal law. The State sought relief for this federal law violation separate from its claim for damages against Glasgow for failure to pay permit fees allegedly required by state law.

It is a violation of the Federal Clean Water Act to discharge a pollutant into a navigable water without a permit. See 33 U.S.C. §§ 1311(a); 1342. Glasgow admits that it is discharging sludge from its water treatment facility into the Missouri River and that it does not have a permit to do so. This sludge is considered a "pollutant" under federal law. See id. § 1362(6). The water treatment facility is a "point source" under the statute. See id. § 1362(14). Under the statute, the Missouri River is a "navigable water." See id. § 1362(7). Thus, by discharging sludge from its water treatment facility into the Missouri River without a permit, Glasgow is clearly violating federal law.

Glasgow's only defense to this violation is that the Hancock Amendment to the Missouri Constitution prevents the state from charging it the enhanced fee contained in the amended state statute to obtain a permit for its water treatment facility. But this state constitutional law defense works (if at all) only to prevent the state from charging an increased fee to obtain a permit in order to comply with the state's own water pollution law. The Supremacy Clause of the federal Constitution dictates that a state law (whether a statutory or constitutional provision) cannot prevent the administration and execution of a federal statute. See Sola Elec. Co. v. Jefferson Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165 (1942) ("It is familiar doctrine that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules."); Quinones v. City of Evanston, 58 F.3d 275, 277 (7th Cir.1995) (city's adherence to state law that conflicts with federal civil rights law provides no defense to liability under the federal law). In our view, the state constitutional provision cannot excuse Glasgow's operation of its water treatment facility without a permit in violation of federal law. Given Glasgow's admissions, we reverse the district court's judgment on Count I, and we remand for the issuance of an immediate order declaring Glasgow to be in violation of the federal statute and enjoining Glasgow from discharging any sludge from its water treatment facility into the Missouri River until such time as a permit has been issued allowing it to do so. Our remand instructions do not prevent the district court from granting such other and further relief to the state as that court deems merited and proven under the claims asserted in Count I of the complaint upon remand.

B. The Collection of Permit Fees

In Count II of its complaint, the state sought to collect the enhanced annual permit fee which Glasgow had not paid together with its attorney's fees and costs, all pursuant to the Missouri clean water statute. The district court ruled that the Hancock Amendment prevented the state from requiring the city to pay an enhanced fee to obtain a permit, and the state appeals. The resolution of this issue requires the interpretation of Missouri law. We review the district court's...

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