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METROPOLITAN SANITARY DIST. OF GREATER CHICAGO V.

September 21, 1989

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


James B. Moran, United States District Judge.


The opinion of the court was delivered by: MORAN

JAMES B. MORAN, UNITED STATES 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.

 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, ...


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