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UNITED STATES v. ILLINOIS POLLUTION CONTROL BD.

September 17, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
ILLINOIS POLLUTION CONTROL BOARD, et al., Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 Acting on behalf of its Department of the Navy ("Navy"), the United States has filed this action against the Illinois Pollution Control Board ("Board"), the Illinois Environmental Protection Agency ("Illinois EPA") and R. Lavin & Son ("Lavin"). *fn1" Navy seeks (1) a declaratory judgment that Board erred in dismissing an administrative appeal filed by Navy to obtain review of a permit that Illinois EPA had issued to Lavin and (2) an order requiring Board, which pegged that dismissal on jurisdictional grounds, to consider the merits of Navy's appeal. Navy invokes federal jurisdiction here under 28 U.S.C. § 1345 ("Section 1345").

 All three defendants have filed motions (1) under Fed. R. Civ. P. ("Rule") 12(b)(1) to dismiss Navy's Complaint for lack of subject matter jurisdiction and (2) under Rule 56 to obtain a merits-based summary judgment. *fn2" In turn Navy has filed a cross-motion for summary judgment. All motions have been fully briefed. For the reasons stated in this memorandum opinion and order, defendants' motions to dismiss are denied, Navy's motion for summary judgment is denied and defendants' motions for summary judgment are granted.

 Facts

 Rules 12(b)(1) and 56 call for this Court to address the parties' motions from a dual perspective, looking first at Navy's allegations and its Rule-56-advanced facts in a manner favorable to it (with reasonable inferences drawn in its favor), and then returning the favor to defendants while considering Navy's Rule 56 motion. That exercise in mental gymnastics poses a low level of difficulty because the facts are truly not in dispute. But as the later substantive discussion will demonstrate, the simplicity in sorting out the facts is more than compensated for by the web of legal concepts to be unraveled.

 Lavin is a refiner-smelter of non-ferrous metals that operates a plant in North Chicago, Illinois directly across from Navy's Naval Training Center Great Lakes ("Great Lakes"). In 1990 Lavin decided that it wanted to discharge wastewater into a stream that ran through Great Lakes before existing into a harbor in Lake Michigan.

 Discharge of pollutants into the waters of the United States is governed by the Federal Water Pollution Control Act, more familiarly known as the Clean Water Act (the "Act," 33 U.S.C. §§ 1251-1376). *fn3" Act § 1342(a) allows the United States Environmental Protection Agency ("EPA") to issue permits that allow private parties to discharge pollution under the National Pollutant Discharge Elimination System ("NPDES"). Act § 1342(b) also generally authorizes an individual state to establish and administer its own permit program subject to EPA approval. Illinois has created such an EPA-approved NPDES scheme in amendments to its Environmental Protection Act ("Illinois Act," 415 ILCS 5/1 to 5/58.14 *fn4" ). Illinois EPA administers the Illinois program, and its permit decisions are subject to Board review.

 In 1990 Lavin applied for a permit from Illinois EPA to discharge wastewater. On December 12, 1996 Illinois EPA issued a draft permit to Lavin, triggering a window for public comments (L. 12(M) P7). On February 4, 1997 Navy responded with suggested modifications to the draft permit (id. P9). Nonetheless, on April 4, 1997 Illinois EPA issued Lavin's permit unaltered, and it sent Navy a letter explaining why the proposed changes had not been accepted (id. PP10, 12).

 Navy then filed a purported administrative appeal with Board on May 2, 1997 (id. P13)--an appeal that would have been timely if Navy had standing to appeal, but that would have no legal significance if such standing were lacking. Board dismissed the appeal on July 10, 1997 on the ground that it did not have jurisdiction to consider appeals from third parties (id. P16). Board recognized that on May 8, 1997 the Illinois General Assembly had passed Senate Bill 814 that would permit such third-party appeals, but Board concluded that it had no statutory basis to hear Navy's appeal because the Illinois Governor had not signed the bill into law (L. Ex. F).

 On July 30, 1997 Senate Bill 814 was signed into law by the Governor and was codified as Illinois Act § 40(e)(1) (L. 12(M) P17). On August 13, 1997 Navy filed a motion for reconsideration before Board, arguing that under the newly-enacted law Board had jurisdiction over third-party appeals and should therefore address the merits of Navy's claim id. P18). But Board concluded that Illinois Act § 40(e)(1) was not intended to apply retroactively, so that Navy was not in a position to take advantage of the change in law (L. Ex. K). Accordingly Board denied Navy's motion for reconsideration on September 18, 1997 (L. 12(M) P21). Navy then brought this action on October 24, 1997 (id. P23).

 Rule 12(b)(1) Motions

 Defendants first urge the absence of subject matter jurisdiction over Navy's claim because Congress barred federal court review of state-issued NPDES permits when it allowed EPA to delegate administrative authority over the NPDES program to individual states. In large part defendants base that contention on this Court's holding in Natural Resources Defense Council, Inc. v. Outboard Marine, 702 F. Supp. 690, 693-94 (N.D.Ill. 1988) that federal courts are prohibited from reviewing any non-EPA-objected-to state-issued NPDES permit. Defendants theorize that Navy is likewise barred from bringing this suit because Illinois EPA issued Lavin's permit without objection from the EPA.

 But Outboard Marine Corp. (and the other cases cited by defendants suggesting that federal courts lack jurisdiction to review state-issued NPDES permits) relied solely on the federal-court inapplicability of the jurisdictional provisions contained in the Act. By contrast, in this case Navy, as an agency of the United States, looks to the jurisdictional grant of Section 1345 to gain entrance to federal court:

 
Except as otherwise provided by Act of Congress, the district court shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.

 Because Outboard Marine necessarily did not address the wholly independent jurisdictional hook potentially available to Navy via Section 1345, that decision cannot control here.

 Defendants nevertheless contend that Navy cannot take advantage of Section 1345's broad grant of jurisdiction because the Act's jurisdictional limits carve out an exception to Section 1345. Though defendants concede that Congress did not explicitly create such an exception to Section 1345, they urge that Congress did so impliedly when it passed the Act.

 Repeal by implication is a disfavored means of statutory interpretation ( Pryner v. Tractor Supply Co., 109 F.3d 354, 358 (7th Cir. 1997)). As Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 808, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976)(quotation marks and citations omitted) stated in the context of rejecting an effort to find an implied exception to Section 1345:

 
When there are statutes clearly defining the jurisdiction of the courts the force and effect of such provisions should not be disturbed by a mere implication flowing from subsequent legislation. In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.

 Thus defendants must show affirmatively either that Congress intended to substitute the Act's jurisdictional provisions for those of Section 1345 or that the two ...


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