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Illinois v. Rosing

Citation: 5 ELR 20717
No. No. 74 C 1618, (N.D. Ill., 05/19/1975)

Contrary to plaintiff's assertions, § 313 of the Federal Water Pollution Control Act Amendments of 1972 does not constitute an express waiver of sovereign immunity so as to subject federal facilities to suit for failure to comply with state pollution control measures. The words "shall comply," while showing strong congressional intent to subject federal agencies to state enforcement powers, do not represent the unequivocal consent to suit that Congress has historically included in a statute when it intended to waive immunity. Section 505, on the other hand, the statute's "citizen suit" provision, does constitute such a waiver. Nevertheless, this action by the Illinois Pollution Control Board, seeking monetary penalties and injunctive relief requiring the Joliet Ammunition Plant to comply with a state-issued water pollution abatement order, must be dismissed for lack of jurisdiction because plaintiff did not give the required 60 days notice prior to bringing suit.

Counsel for Plaintiff
William J. Scott, Attorney General
Frederic J. Entin, Asst. Attorney General
George Wolfe
188 W. Randolph Street
Chicago, Ill. 60601

Counsel for Defendants
Wallace H. Johnson, Asst. Attorney General
Michael D. Graves
Martin Green
Department of Justice
Washington, D.C. 20530

James R. Thompson, U.S. Attorney
Arnold Kanter, Asst. U.S. Attorney
219 S. Dearborn Street
Chicago, Ill. 60604