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United States v. York, City of

Citation: 17 ELR 20206
No. No. 85-1891, 24 ERC 1637/(M.D. Pa., 06/04/1986)

The court holds that Pennsylvania may intervene as a plaintiff in an enforcement suit brought by the United States under § 309 of the Federal Water Pollution Control Act (FWPCA) against a municipality. The court first rules that a state may intervene as either a plaintiff or defendant under FWPCA § 309(e), which requires states to be joined as a party when a municipality is sued by the federal government. While Congress may have anticipated that states would be joined as defendants, nothing in the language of § 309(e) or the legislative history precludes states from being joined as plaintiffs. The court holds that Pennsylvania should be joined as a plaintiff. The state and the federal government are both seeking to enforce the effluent limitations in the municipality's national pollutant discharge elimination system (NPDES) permit, and the United States can collect any judgment that the state may be required to pay on behalf of the municipality by filing a cross-claim. The court holds that a consent order between the municipality and the state does not make the state's action res judicata. The consent order concerned the imposition of a sewer ban by the state on municipalities using defendants' facilities, while this case concerns alleged violations of defendants' NPDES permit. Finally, the court holds that the requirements for its exercise of pendent jurisdiction over Pennsylvania's state law claims have been met. There is a common nucleus of facts between the state and federal law claims since both arise out of the same NPDES permit violations. The state is not attempting to manufacture federal jurisdiction and the FWPCA does not preclude jurisdiction. Further, the exercise of pendent jurisdiction would save limited judicial resources, would not confuse the jury, will eliminate the chance of inconsistent results from different forums, and does not raise federalism or comity concerns.

Counsel for Plaintiff
Mary Spearing, Ass't U.S. Attorney
P.O. Box 11754, Harrisburg PA 17108
(717) 782-4482

Robert R. Kuehn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Counsel for Defendants
J. Robert Kutherman
City Hall, 50 W. King St., York PA 17405
(717) 843 -8841