The opinion of the court was delivered by: McDADE, Chief Judge.
Before the Court is Magistrate Judge Gorman's Report &
Recommendation [Doc. # 13], which addresses Defendant City of
Rock Island's Motion to Dismiss [Doc. # 7]. Magistrate Judge
Gorman recommends that the Court deny Defendant's motion.
Defendant has filed its objections and Plaintiff has responded.
Having considered the Report and Defendant's objections, the
Court ADOPTS Magistrate Judge Gorman's Recommendation.
Plaintiff has brought this cause of action against the City of
Rock Island for the City's discharge of pollutants into the
Mississippi River from its publicly owned treatment works and
wastewater collection system in violation of the Clean Water Act
("the Act"), 33 U.S.C. § 1301, et seq. Plaintiff alleges: (1)
from 1995 to 1999, Rock Island exceeded its permit limitations
for the discharge of total suspended solids; (2) Rock Island has
discharged untreated effluent in violation of its permit, which
requires that all discharges comply with 35 Ill. Admin. Code
302.203;*fn1 and (3) in violation of its permit, Rock Island
has discharged untreated wastewater from its combined sewers
prior to receiving its "maximum practical flow" of 12 mgd.
The Clean Water Act includes provisions for States to enforce
their own pollution control and permit programs, the National
Pollutant Discharge Elimination System. See 33 U.S.C. § 1342.
Pursuant to the Act, the United States Environmental Protection
Agency ("EPA") has authorized the State of Illinois to
administer pollution permits. In 1977, the EPA and Illinois
entered into the "National Pollutant Discharge Elimination
System Memorandum of Agreement Between the Illinois
Environmental Protection Agency [("IEPA")] and the United States
Environmental Protection Agency Region V" ("Memorandum of
Agreement"), which defines the EPA's and the IEPA's respective
roles in Illinois' permit program.
As pointed out by Magistrate Judge Gorman, Illinois has been
working with Rock Island to remedy various alleged violations of
pollution control regulations. However, the United States has
now stepped into the dispute bringing this civil action for what
Rock Island claims are the same violations that the State has
been pursing. Rock Island filed a motion to dismiss arguing that
the provisions of the Clean Water Act when taken together with
the Memorandum of Agreement show that the EPA agreed to limit
its enforcement authority by bringing enforcement actions only
where the State was not itself enforcing permit violations. Rock
Island argues that because the EPA voluntarily delegated its
authority to administer the permit program to the IEPA,
including enforcement, the EPA cannot maintain this action.
Further, Rock Island asserts that the alleged violations have
been or currently are being addressed by the IEPA.
Rock Island has timely filed its objections to Judge Gorman's
Report & Recommendation. Specifically, it raises the following
objections: (1) the United States should not be allowed to
maintain this action in light of the ongoing enforcement
activity of Illinois; (2) Sections 1319 and 1342 of the Clean
Water Act in combination with the Memorandum of Agreement
preclude this action; (3) public policy requires dismissal; and
(4) certain arguments raised in the motion to dismiss rely on
documents that the Magistrate can take judicial notice of and
were thus properly included as exhibits to the motion to
dismiss. Plaintiff has now responded to Defendant's objections.
This Order follows.
A district court reviews de novo any portion of a magistrate
judge's report and recommendation to which written objections
have been made. See Fed.R.Civ.P. 72(b). "The district judge
may accept, reject, or modify the recommended decision, receive
further evidence, or recommit the matter to the magistrate judge
with instructions." Id.
A complaint should not be dismissed unless it appears from the
pleadings that the plaintiff could prove no set of facts in
support of his claim which would entitle him to relief. See
Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957); Gould v. Artisoft, Inc., 1 F.3d 544, 548 (7th Cir.
1993). Rather, it should be construed broadly and liberally in
conformity with the mandate in Federal Rules of Civil Procedure
For purposes of a motion to dismiss, the complaint is
construed in the light most favorable to the plaintiff; its
well-pleaded factual allegations are taken as true, and all
reasonably-drawn inferences are drawn in favor of the plaintiff.
See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127
L.Ed.2d 114 (1994); Hishon v. King & Spalding, 467 U.S. 69,
104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Lanigan v. Village of
East Hazel Crest, 110 F.3d 467 (7th Cir. 1997); MCM Partners,
Inc. v. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 969 (7th
Cir. 1995); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th
First, Rock Island contends that because the EPA has delegated
authority to administer the Clean Water Act permit program to
the State, the EPA cannot maintain this action. It asserts that
when the Clean Water Act and the Memorandum of Agreement are
taken together, "it becomes abundantly clear that by the terms
of the MOA — and not by statute, U.S. EPA agreed to limit its
enforcement authority with the IEPA." See Def.'s Obj., at 2.
Defendant contends that per the Memorandum of Agreement, the EPA
agreed it will only bring enforcement actions in those instances