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U.S. v. CITY OF ROCK ISLAND

April 23, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
V.
CITY OF ROCK ISLAND, ILLINOIS, ET AL, DEFENDANTS.



The opinion of the court was delivered by: McDADE, Chief Judge.

ORDER

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.

BACKGROUND

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.

Judge Gorman disagreed. He found that nothing in either the Clean Water Act or the Memorandum of Agreement limits the United States from bringing this action against Rock Island. Although Magistrate Judge Gorman recognized that there are a limited number of situations where the EPA's authority is limited, see 33 U.S.C. § 1319(g), he found that "the complaint does not allege (and the City does not argue) that either of these circumstances presents itself here." As to Rock Island's arguments that the violations have been or are being addressed and that it violated its "maximum practical flow," Magistrate Judge Gorman found that the arguments relied upon documents and facts that are outside the pleadings and hence inappropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Further, because Plaintiff requested discovery on many of the issues raised by Rock Island and discovery had not yet commenced, Judge Gorman found that it would be premature to covert this part of Rock Island's motion to one of summary judgment.

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.

LEGAL STANDARD

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.

ANALYSIS

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 8(f).

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 Cir. 1992).

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 where ...


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