Metropolitan Sanitary Dist. v. US Dept. of Navy, 88 C 5407.

• Decision Date: 21 September 1989
• Docket Number: No. 88 C 5407.,88 C 5407.
• Parties: The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Plaintiff, v. UNITED STATES of America DEPARTMENT OF THE NAVY, etc., Defendant.
• Court: U.S. District Court — Northern District of Illinois

722 F. Supp. 1565

The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Plaintiff, v. UNITED STATES of America DEPARTMENT OF THE NAVY, etc., Defendant.

No. 88 C 5407.

United States District Court, N.D. Illinois, E.D.

September 21, 1989.

COPYRIGHT MATERIAL OMITTED

Paul D. Lindauer, Jr. and Allen S. Lavin, The Metropolitan Sanitary Dist. of Greater Chicago, Chicago, Ill., for plaintiff.

James J. Kubik, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiff Metropolitan Sanitary District of Greater Chicago (MSD) brings this action against the United States Department of the Navy (government) alleging a failure to comply with the terms and conditions of a sewer discharge permit. We have before us the government's motion to dismiss the entire case for want of subject matter jurisdiction and a separate motion to dismiss count III. For the following reasons, we deny the government's motion to dismiss.

FACTS

The MSD is a unit of Illinois local government and has authority over discharges to its sewer system. Under a permit issued by the MSD, the government's sewage system at the Glenview Naval Air Station discharges into the MSD's sewer system. The MSD filed this action against the United States Department of the Navy alleging that the naval station has failed to comply with the terms and conditions of the permit. In count I, the complaint asks that this court issue a writ of mandamus ordering the government to comply with the terms of the discharge permit. In count II, the MSD asks for an injunction barring further discharges until the government complies with the terms of the discharge permit. And in count III, the MSD asks for civil penalties of $100 to $1,000 for each day that the government has discharged sewage in violation of the terms of the permit. The MSD asserts that this court has jurisdiction under 28 U.S.C. §§ 1331 and 1346(a)(2), and under § 313 of the Clean Water Act, 33 U.S.C. § 1323.

The government moves to dismiss for want of subject matter jurisdiction, arguing that the MSD failed to follow the procedures outlined in § 505 of the Clean Water Act, 33 U.S.C. § 1365 (1982 & Supp. V 1987), that are necessary prerequisites before citizens may sue to enforce the Act. The government further challenges count III, arguing that the Act's waiver of sovereign immunity is not broad enough to permit suits that seek civil penalties against the United States.

DISCUSSION

I. Subject Matter Jurisdiction

Section 505(a) of the Clean Water Act permits citizens to sue any person, including the United States, in federal district court to enforce the Act. 33 U.S.C. § 1365(a). Citizens may sue any defendant who is alleged to violate an effluent standard or any order concerning such a standard, when that order is issued by a state or the administrator of the Environmental Protection Agency (EPA). Id. The Act specifies, however, that at least sixty days before filing such a suit the citizen-plaintiff must provide notice to the EPA's administrator, to the state where the alleged violation of the Act occurs, and to the alleged violator. 33 U.S.C. § 1365(b). The government asserts that the MSD has failed to provide the EPA with notice of this suit and that the suit should therefore be dismissed for failure to meet the Act's jurisdictional prerequisites for a citizen suit.

Because the government misconstrues the MSD's complaint, the government's argument misses the mark. This action is not framed as a citizen suit under § 505 of the Clean Water Act. The MSD thus has no obligation to comply with the notice requirements for a citizen suit. The government's motion to dismiss all three counts of this suit is therefore denied.

Disposal of the notice question, however, does not end this court's inquiry into its subject matter jurisdiction. The MSD invokes the general federal question jurisdiction of this court under 28 U.S.C. § 1331. Under Illinois law the MSD has authority to issue permits allowing discharge into its sewers, to set the conditions under which that discharge is permitted and to enforce those conditions in court by seeking injunctions, writs of mandamus and civil penalties. See Ill.Rev.Stat. ch. 42 ¶ 326f (1987 and Supp.1988). The question of federal law arises from § 313(a) of the Clean Water Act, 33 U.S.C. § 1323(a), which mandates that federal facilities comply with all requirements of federal, state and local law regarding the control and abatement of water pollution,¹ and which also subjects federal facilities to the same enforcement procedures, including process and sanctions, to which private entities are subject. The MSD has properly invoked this court's jurisdiction under 28 U.S.C. § 1331.

II. Sovereign Immunity

We now turn to the government's argument that count III should be dismissed because civil penalties cannot be imposed against the United States for violating state water pollution standards. In reply to the government's motion to dismiss, the MSD offers various arguments suggesting that the United States has either waived the defense of sovereign immunity or is otherwise estopped to raise the defense.

The MSD's assertions of waiver and/or estoppel do nothing to combat the government's claim of sovereign immunity. Only an Act of Congress can validly waive the sovereign immunity of the United States. Willis v. United States, 600 F.Supp. 1407, 1411 (N.D.Ill.1985). See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3654.

In a suit against the United States the jurisdictional allegations in the plaintiff's complaint must refer to a statute that waives the government's immunity. Id. Civil § 1212. In this case the MSD's complaint includes reference to § 313 of the Clean Water Act, 33 U.S.C. § 1323(a). The government asserts that this statute does not represent congressional consent to suits that seek civil penalties. This court disagrees.

Section 1323(a) begins with a broad waiver of the government's immunity:

Each department, agency or instrumentality of ... the Federal Government ... and each officer, agent, or employee thereof, 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 service 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.

33 U.S.C. § 1323(a).

The government contends that because § 1323(a) does not expressly consent to suits for "civil penalties," the subsection's waiver of sovereign immunity cannot be construed to extend to civil penalties. The government argues that waivers of sovereign immunity are read especially narrowly when litigants seek penalties against the United States. The government cites Missouri Pacific Railroad v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087 (1921), where the Court interpreted the Federal Control Act, a statute that provided for federal operation of some railroads during the First World War. Section 10 of the Control Act provided that "carriers while under Federal control shall be subject to all laws and disabilities as common carriers, whether arising under State or Federal laws or at common law." Id. at 554, 41 S.Ct. at 594. The Court there held that this seemingly broad waiver of sovereign immunity did not subject a federal carrier to penalties authorized by state statute. In the Court's view, the Control Act obligated the government to compensate people who suffered injury that arose when a government employee violated duties established by law, even state law, but the government remained immune from fines and penalties:

Congress did not undertake to punish itself for any departure by the imposition upon itself of fines and penalties or to permit any other sovereignty to punish it. Congress is not to be assumed to have adopted the method of fines paid out of public funds to insure obedience to the law on the part of the Government's railway employees.

Id. at 563-64, 41 S.Ct. at 597.

This court believes that the government's reliance on Ault is inappropriate in this case, because the statute that the Court construed in Ault is distinguishable from the Clean Water Act. In Ault, the Court based its decision on the premise that Congress permitted suit against government-operated railroads only for the purpose of compensating injured parties, not for the purpose of punishment. "The purpose for which the Government permitted itself to be sued was compensation, not punishment." 256 U.S. at 564, 41 S.Ct. at 597. Having determined the purpose behind the Control Act's seemingly all-encompassing waiver of sovereign immunity, the Ault Court limited the waiver to that purpose: compensation only.

The congressional purpose behind the Clean Water Act and the 1977 Amendments, however, is not so narrow. Congress passed the Clean Water Act "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act set a national goal that the discharge of pollutants into the nation's navigable waters be entirely eliminated by 1985. Id. The legislation's purpose was to achieve compliance with new standards, not to simply compensate for injuries caused by existing practices. Congress intended to actually change existing practices. Congress clearly planned to coerce...