State of California v. Department of Navy

• Decision Date: 02 April 1986
• Docket Number: No. C-85-3830-MHP.,C-85-3830-MHP.
• Citation: 631 F. Supp. 584
• Parties: STATE OF CALIFORNIA, Plaintiff, v. DEPARTMENT OF the NAVY, Defendant.
• Court: U.S. District Court — Northern District of California

631 F. Supp. 584

STATE OF CALIFORNIA, Plaintiff, v. DEPARTMENT OF the NAVY, Defendant.

No. C-85-3830-MHP.

United States District Court, N.D. California.

April 2, 1986.

R.H. Connett, Asst. Atty. Gen., Roderick E. Walston and Allene C. Zanger, Deputy Attys. Gen., San Francisco, Cal., for plaintiff.

Joseph P. Russoniello, U.S. Atty., Rodney H. Hamblin, Asst. U.S. Atty., Chief, Land & Natural Resources Div., Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., for defendant.

OPINION

PATEL, District Judge.

The State of California ("State") brings this action against the United States Department of the Navy ("Navy") for alleged violations of a state water pollution discharge permit. The relief sought by the State is the imposition of civil penalties. The Navy moves to dismiss the complaint or, alternatively, for summary judgment; the State cross-moves for partial summary judgment.

For the reasons discussed below, the court concludes that the State has no federal cause of action against the Navy and that the court therefore is without jurisdiction to entertain the State's suit. Accordingly, the Navy's motion to dismiss is granted.

BACKGROUND

The Navy operates a waste treatment plant at its military installation on Treasure Island. The plant is operated pursuant to a National Pollutant Discharge Elimination System (NPDES) permit, issued by the California Water Quality Control Board ("Board"), which specifies the type and amount of pollutants that may be discharged into the San Francisco Bay.

According to the complaint, from October 1983 through July 1984 the Navy on several occasions violated the terms and conditions of the permit by discharging waste that was improperly treated. On July 18, 1984 the Board adopted an order requiring the Navy to cease and desist the unlawful discharge. Apparently, since July 1984 the Navy has been in compliance with both the Board's order and the terms and conditions of the permit.

On October 17, 1984 the Board requested the California Attorney General to seek civil penalties against the Navy for the violations which allegedly occurred between October 1983 and July 1984. The State issued a Notice of Intent to File Suit on March 19, 1985, notifying the Administrator of the Environmental Protection Agency ("Administrator") and the Navy of its intent to seek civil penalties in federal court. No action was taken by the Administrator and, on June 13, 1985 the State filed this action seeking civil penalties of up to $10,000 for each day from October 1983 through July 1984 on which the Navy violated the permit.

DISCUSSION

A. Statutory Background

The Clean Water Act ("Act"), 33 U.S.C. §§ 1251, et seq., is a "complicated and lengthy statute." Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227, 1229 (9th Cir. 1982), quoting American Frozen Food Inst. v. Train, 539 F.2d 107, 113 (D.C.Cir. 1976). Its purpose is to eliminate pollutant discharges into the navigable waters of the United States by 1985. 33 U.S.C. § 1251(a)(1). Toward that end, the Act establishes a permit system and expressly prohibits any discharge not specifically authorized by permit. 33 U.S.C. § 1311(a); Act § 402, 33 U.S.C. § 1342.

The Act creates a "cooperative federal-state scheme for the control of water pollution," Shell Oil Co. v. Train, 585 F.2d 408, 409 (9th Cir.1978), including the issuance and enforcement of discharge permits. Although the Administrator has initial authority to issue permits, the Act provides that each state may establish and administer its own permit program. 33 U.S.C. §§ 1342(a), (b). The Administrator must approve a state program unless he or she determines that the program does not provide the state with "adequate authority" to enforce the Act. 33 U.S.C. § 1342(b).

Once a state program is approved, the Administrator must "suspend the issuance of" any federal permit covering the navigable waters subject to the state program. 33 U.S.C. § 1342(c)(1). Although enforcement authority then rests primarily with the state, the Administrator retains certain oversight authority over the state program. The Administrator may veto particular permits issued by the state, and may withdraw approval of the entire state program if he or she determines that the program is not being administered in accordance with the requirements of Act. 33 U.S.C. §§ 1342(c)(3), (d)(2). Furthermore, if the state fails to take "appropriate enforcement action" against a polluter who violates the state-issued permit, the Administrator must either issue an order requiring compliance with the permit or bring a civil action against the polluter. 33 U.S.C. § 1319(a)(1). As the Ninth Circuit has noted, however, "despite this residual federal supervisory responsibility the federal-state relationship established under 33 U.S.C. § 1342 is `a system for the mandatory approval of a conforming State program and the consequent suspension of the federal program which creates a separate and independent State authority to administer the NPDES pollution controls.'" Shell Oil, 585 F.2d at 410, quoting Mianus River Preservation Committee v. Administrator, EPA, 541 F.2d 899, 905 (2d Cir. 1976). Thus, although the Act grants the Administrator the authority in the first instance to issue NPDES permits, "Congress clearly intended that the states would eventually assume the major role in the operation of the NPDES program." Shell Oil, 585 F.2d at 410.

B. Jurisdiction Under § 505

It is, of course, well-established that the United States cannot be sued without its consent and that "the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1057 (1941). In deciding whether § 505 provides this court with jurisdiction to entertain the state's action, the court is bound by the general rule that waivers of sovereign immunity must be construed strictly in favor of the sovereign and should not be enlarged beyond what the language of the waiver requires. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983).

Section 505(a) of the Act provides that "any citizen may commence a civil action on his own behalf — (1) against any person (including (i) the United States ...) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter...." 33 U.S.C. § 1365(a). Section 505(f)(6) explains that "effluent standard or limitation" includes "a permit or condition thereof issued under section 1342." Section 1342 provides for the issuance of state permits. Thus, under § 505 a "citizen" may bring a suit in federal court against the United States for violation of a state permit. Where such an action is brought, § 505(a) authorizes the district court to "apply any appropriate civil penalties under section 1319(d)." The State contends that it is a "citizen" within the meaning of § 505 and that the court therefore has jurisdiction under § 505 to consider its action for civil penalties against the Navy.

Section 505(g) defines "citizen" to mean "a person or persons having an interest which is or may be adversely affected." Section 502(5), the general definitions provision of the Act, defines "person" to include a state or political subdivision of a state. 33 U.S.C. § 1362. Applying these definitions literally, a state is a "citizen" within the meaning of § 505.

Unfortunately, it is not that simple. As one court has noted, "while it is true that things equal to the same things are equal to each other, the provisions of 33 U.S.C. § 1365 preclude the mechanical application of this geometrical theorem." United States v. City of Hopewell, 508 F.Supp. 526, 528 (E.D.Va.1980). Close inspection of the provisions of § 505, as well as the statutory scheme generally, convinces the court that Congress did not intend to authorize states to bring "citizen suits" under § 505.

Section 505(b)(1)(B) expressly provides that a citizen may not bring an action against a polluter if the Administrator or state has already commenced and is diligently prosecuting a civil or criminal action in court. Any state bringing an action under § 505 faces an obvious dilemma — the state must show it is not diligently pursuing its remedies under the state program. Since such a showing is a prerequisite to suit under § 505, it is unlikely Congress intended states could take advantage of the citizen suit provision.

Similarly, under § 505(b)(1)(A) a citizen suit may not be commenced until notice of the alleged violation has been given to the Administrator, the state in which the alleged violation occurs, and the alleged violator. It makes little sense to require the state to provide itself with 60 days notice before it brings an action. Although the language of § 505(b)(1)(A) does not preclude its application to actions commenced by a state, it does suggest Congress did not contemplate that states would be bringing "citizen suits" under § 505.

Section 505(h) lends additional support to this conclusion. Section 505(h) specifically authorizes the governor of a state to "commence a civil action under subsection (a) of this section, without regard to the limitations of subsection (b) of this section, against the Administrator where there is alleged a failure of the Administrator to enforce an effluent standard or limitation under this chapter the violation of which is occurring in another State and is causing an adverse effect on the public health or welfare in his State, or is causing a violation of any water quality requirement in his State." Yet § 505(a)(2) already provides for suits by "citizens" against the Administrator where the Administrator fails to perform "any act or duty under this chapter." If states are "citizens" under § 505, the authorization under § 505(h) would be...