United States v. City of York

No. 85-1891 (M.D. Pa. June 4, 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

[17 ELR 20206]

Caldwell, J.:

Memorandum

Introduction

The Commonwealth of Pennsylvania ("Commonwealth") has moved to intervene as a plaintiff in this action pursuant to Fed. R. Civ. P. 24. The original plaintiff, the United States of America ("United States") filed suit under § 309 of the Clean Water Act, ("CWA") 33 U.S.C. § 1319(b) for injunctive relief and the assessment of civil penalties against defendants, the City of York and [17 ELR 20207] the York City Sewer Authority, alleging that defendants violated certain effluent limitations contained in their National Pollutant Discharge Elimination System ("NPDES") permits. The Commonwealth joins in plaintiff's claim under the CWA and asserts an additional state law claim under the Pennsylvania Clean Streams Law, 35 P.S. § 691 et seq. (Purdon Supp. 1985). Defendants oppose the motion to intervene while plaintiff supports the motion. For the reasons set forth below, we will grant the Commonwealth's request to intervene as a party plaintiff.

Discussion

A. Intervention as a plaintiff

The Commonwealth asserts that its motion to intervene should be granted because (1) § 505(b)(1)(B) of the CWA grants the Commonwealth an unconditional right of intervention as a citizen, (2) disposition of this action may impair the Commonwealth's ability to protect its interest, and (3) the Commonwealth's claims and those in the main action have common questions of law or fact.¹ Defendants concede that pursuant to § 1319(e) of the CWA, the Commonwealth must be named as a party to this action. Defendants, however, relying upon United States v. City of Hopewell, 508 F. Supp. 526 [11 ELR 20474] (E.D. Va. 1980) and United States v. City of Winston-Salem, No. C-75-557-WS (M.D.N.C. April 28, 1976)² object to the Commonwealth's intervention as a party plaintiff.

Section 1319(e) provides that in actions brought by the United States against a municipality the state shall be joined as a party:

Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judgment, or any expenses incurred as a result of complying with any judgment, entered against the municipality in such action to the extent that the laws of that State prevent the municipality from raising revenues needed to comply with such judgment.

33 U.S.C. § 1319(e).

In United States v. City of Hopewell, supra, the court held that § 1319(e) did not permit the Commonwealth of Virginia to join the United States as a party plaintiff. There, the Commonwealth of Virginia and the United States initiated a civil action asserting that defendant polluted certain waters by failing to comply with the provisions of its NPDES permit. Defendant moved to dismiss the Commonwealth as a party plaintiff. The court granted defendant's motion because:

It is obvious from a reading of subsection (e) that Congress anticipated that the State would be made a party defendant since the subsection makes the State liable for any judgment or expenses a municipality is prevented by State law from being able to pay . . . . The mere desire on the part of the Commonwealth to be identified with what it perceives to be the more politically popular or correct position cannot confer jurisdiction on this Court to entertain a suit by the Commonwealth against her own political construct, the City of Hopewell. 33 U.S.C. § 1319(b) simply provides no such jurisdiction. Cf. Shell Oil Co. v. Train, 585 F.2d 408 [9 ELR 20023] (9th Cir. 1978) (federal court without jurisdiction to hear challenge to State NPDES permit determination).

Id. at 527-28.

We are not persuaded by analysis of the Hopewell court. Section 1319 provides that the state shall be joined as a party. A party is defined as "those by or against whom a legal suit is brought, whether in law or equity, the party plaintiff or defendant." Black's Law Dictionary 1010 (5th ed. 1979). Thus, the plain language of this subsection clearly indicates that a state may be joined as either a plaintiff or defendant. "Absent legislative history to the contrary, we must presume that the legislative purpose is expressed by the ordinary meaning of the words used, and that language must be regarded as conclusive." Glenn Electric Co., Inc. v. Donovan, 755 F.2d 1028, 1033 (3d Cir. 1985) (citing American Tobacco Co. v. Patterson, 456 U.S. 63, 71 L. Ed. 2d 748, 102 S. Ct. 1534 (1982). We have reviewed the legislative history and have discovered nothing which contradicts our interpretation of § 1319(e) that a state may be joined as either a plaintiff or defendant. While it may be true that Congress anticipated that states will be joined as defendants, there is no evidence that Congress intended to preclude states from being joined as plaintiffs.³

Having reached this conclusion, we must now determine whether the Commonwealth should be joined as a plaintiff or defendant. It would appear that the Commonwealth should be made a plaintiff since the Commonwealth and the United States are pursuing the same objective in this action — enforcement of defendants' NPDES permit effluent limitations. See Butcher & Singer, Inc. v. Kellem, 623 F. Supp. 418, 421 (D. Del. 1985) ("[T]he Court can realign the parties according to their true interests"). Defendants nevertheless maintain that the Commonwealth should not be made a plaintiff because it may ultimately be obligated to satisfy any judgment the United States may obtain against them in this action. See 33 U.S.C. § 1319(e). We disagree. The ability of the United States to collect on a judgment against the Commonwealth is not dependent upon it being made a defendant. In the event the United States desires to pursue a claim against the Commonwealth, it may do so by bringing a cross-claim. See Fed. R. Civ. P. 13(g). Accordingly, since the Commonwealth's interests are more closely aligned with those of the United States we will grant the Commonwealth's motion to intervene as a party plaintiff.

B. Res Judicata

Defendants next argue that by virtue of a consent order entered into by the City of York and the Commonwealth on January 29, 1981, the Commonwealth's action is barred by the doctrine of res judicata. The consent order concerned an appeal by several municipalities of an order by the Pennsylvania Department of Environmental Resources ("DER") imposing a sewer ban on municipalities using defendants' facilities. Defendants contend that the issues resolved by the consent order are the same ones the Commonwealth is pursuing in this action and consequently the Commonwealth cannot seek additional enforcement actions against York without exhausting the administrative remedies provided by the consent order. This contention is without merit and the two actions are not identical. As previously noted, the issue resolved by the consent order was whether a sewer ban should be instituted by the DER. In contrast, the instant claims concern alleged violations of defendants' NPDES permit. Since the issues addressed in the prior action and the present one are different, the doctrine of res judicata is not applicable. See Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329 (3d Cir. 1985). More importantly, the consent order expressly provides that the DER may pursue additional remedies, including civil actions:

Nothing contained in this Order and Agreement shall be construed to waive any right of the Department to institute criminal or civil actions for any violation of the Rules and Regulations of the Department or The Clean Streams Law that results from the City's, Authority's, and the Municipalities' operations, except as specifically provided herein.

Based upon these considerations, we conclude that the Commonwealth's action is not barred by the doctrine of res judicata.

C. Pendent Claim Jurisdiction

Finally, defendants argue that we should not exercise pendent jurisdiction over the Commonwealth's state law claims. They maintain that the state and federal actions involve different legal theories which if tried together would confuse a jury. The Commonwealth, of course, asserts that the requirements for exercising pendent jurisdiction have been met.

The test for analyzing the appropriateness of exercising jurisdiction over a pendent claim was set forth in Ambromovage v. United Mine Workers of America, 726 F.2d 972 (3d Cir. 1984) as follows:

On the first level, a court must determine whether it has constitutional power to determine a state-law claim. This "power" test depends on whether there is a "common [17 ELR 20208] nucleus of operative fact" between the state claim at issue and the accompanying federal claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). As we see it, Gibbs provides the unifying principle which limits the extent of federal jurisdiction over both pendent and ancillary claims. The second level requires the court to determine whether the exercise of jurisdiction at issue would violate a particular federal policy decision, such as the requirement of complete diversity or the explicit exclusion of a particular party from federal liability for the actions alleged in the complaint. At this level, the court may consider whether the plaintiff's assertion of ancillary or pendent jurisdiction is an attempt to manufacture federal jurisdiction where it is otherwise foreclosed by the relevant statutes. The issue generally turns on statutory interpretation. The final level — prudential in character — is for the district court, in its discretion, to weigh various factors bearing on the appropriateness of hearing a pendent claim.

Id. at 989-90 (footnotes omitted).

Applying this analysis, we find that the Commonwealth has satisfied the requirements of Ambromovage. The Commonwealth's claims meet the "common nucleus of operative facts" test because the state and federal law claims arise out of the same NPDES permit violations. The second test is not applicable to the instant action since the Commonwealth is not attempting to manufacture federal jurisdiction by bringing suit against defendants. In addition, we are not precluded from asserting jurisdiction over the Commonwealth's claims by the relevant statutes. Finally, there are no "prudent reasons" dictating against exercising jurisdiction.⁴ Unless we exercise pendent jurisdiction, the federal and state law actions will have to be adjudicated in separate forums. Such multiplicity of lawsuits will unnecessarily burden defendants and the Commonwealth and tax limited judicial resources. In addition, we do not believe jury confusion is likely to result because the federal and state actions are founded upon substantially identical legal theories. Both actions concern (1) the effluent limitation in defendants' NPDES permit and (2) whether defendants' discharges violated those limits. See 33 U.S.C. § 1311 and 35 P.S. §§ 691.201 and 691.202 (Purdon Supp. 1985). Furthermore, since these claims are intertwined, joint adjudication will eliminate the possibility of inconsistent results being reached in different forums. Finally, this is not a case where concerns of federalism and comity would be implicated since the Commonwealth seeks to have the state law claims brought in federal court. In light of the foregoing, we will exercise jurisdiction over the Commonwealth's state law claims.

An appropriate order will be entered.

1. Since 33 U.S.C. § 1319(e) provides sufficient grounds for permitting the Commonwealth's intervention we will not address the additional arguments raised by the Commonwealth.

2. Contrary to defendant's contention the Winston Salem court was faced with a different issue and thus has no bearing on the present action.

3. We also note that more recent cases have permitted states to intervene as a plaintiff. See e.g., United States v. Pottstown, No. 85-6280 (E.D. Pa.); United States v. Upper Moreland-Hatborough Joint Sewer Authority, No. 85-6282 (E.D. Pa.).

4. Defendants again rely upon United States v. City of Hopewell, supra, to support their contention that we should not assert pendent jurisdiction. City of Hopewell addressed the issue of pendent party jurisdiction, not pendent claim jurisdiction and hence we decline to follow it.