Illinois v. Rosing

No. 74 C 1618 (N.D. Ill. May 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

[5 ELR 20717]

Hoffman, J.:

This is an action in two counts by the State of Illinois seeking permanent injunctions against the United States; the Commander of the Joliet Army Ammunition Plant, Lt. Col. Willis S. Rosing; the Commanding Officer of the United States Army Ammunition Procurement and Supply Agency, Brig. Gen. Laurence E. Van Buskirk; and the Secretary of Defense, James R. Schlesinger.

Originally filed in the circuit court of Will County, Illinois, the cause was removed to this court pursuant to the provisions of 28 U.S.C. § 1442(a)(1) on June 12, 1974.

Count I of the complaint seeks a permanent injunction requiring the defendants to comply with an order issued on October 18, 1973, for the Illinois Pollution Control Board, an agency created under the Illinois Environmental Protection Act, Illinois Revised Statutes, Chapter 11-1/2, Paragraphs 1001 et seq., (1973) directing the defendants to cease causing or allowing the discharge of effluent at the Joliet Army Ammunition Plant so as to cause or tend to cause water pollution.

The Pollution Control Board acted on the complaint of Citizens For A Better Environment, a non-profit Illinois corporation, against the Joliet Army Ammunition Plant, a federally-owned facility for the manufacture of military explosives.

The plaintiff further alleges in Count I that the Illinois Pollution Control Board is empowered under the Illinois Environmental Protection Act to issue, cease, and desist orders against violators of that statute. Count II seeks a permanent injunction allowing officials of the Illinois Environmental Protection Agency to enter the Joliet Plant for purposes of inspecting and in vestigating possible violations of the Illinois Environmental Protection Act.

The plaintiff alleges that on April 19, 1974, the defendant prevented one such official from taking water samples. Also, in Count II the plaintiff seeks the assessment of civil monetary penalties [5 ELR 20718] against the defendants for refusing to permit inspections on plant property. The defendants move to dismiss the complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted or in the alternative for summary judgment.

The defendants assert principally that [the lack of subject matter jurisdiction and failure to state a claim,] because plaintiff has not complied with the notice requirement contained in an express waiver of sovereign immunity in § 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365. This is an action to which the United States has not consented, and it is, therefore, an action barred by the doctrine of sovereign immunity.

It is not disputed that this is an action against the United States, for the judgment sought would expend itself upon the public treasury or domain and the effect of the judgment would be to restrain the government from acting or compel it to act, Dugan v. Rank, 373 U.S. 609, 620 (1963), Larson v. Domestic and Foreign Corp., 337 U.S. 682, 688 (1949).

Under settled law no action lies against the United States unless Congress has authorized it, Dalehite v. United States, 346 U.S. 15, 30 (1952). Furthermore, waivers of sovereign immunity cannot be implied but must be unequivocably expressed, United States v. King, 395 U.S. 1, 4 (1969), citing United States v. Sherwood, 312 U.S. 584 (1941), and the terms of any waiver must be strictly construed, Dalehite v. United States, to which I have previously alluded.

The question presented, therefore, is whether Congress has authorized this action to enforce an order of the Illinois Pollution Control Board and to compel the defendants to permit state officials to enter the Joliet Plant property for inspection purposes.

The plaintiff contends that § 313 of the Federal Water Pollution Control Act, hereinafter referred to as FWPCA, 33 U.S.C.A. § 1323, is an express waiver of immunity authorizing this action. Section 313 provides, inter alia, that each department, agency, or instrumentality of the federal government shall comply with state requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements including the payment of reasonable service charges.

For the court to hold that § 313 authorizes this action it would be necessary to imply a waiver of immunity contrary to the rule announced by Justice Black in United States v. King, to which I have previously referred.

The words "shall comply" while strongly expressive of congressional intent to subject federal agencies to state enforcement powers, do not constitute the unequivocal consent to suit that Congress has historically included when it intended to waive immunity.

For example, the McCarren Amendment to the Act of August 26, 1937, which authorized the Central Valley Reclamation Project along the San Joacquin River in California provides, 43 U.S.C. § 66(a), that consent is given to join the United States as a defendant in any suit: one, for the adjudication of rights to the use of water of a river system or other source, Dugan v. Rank, to which I have made reference heretofore, 372 U.S. at 618.

In People of the State of Illinois v. Department of Defense, unreported, No. 73 C 2081 (N.D. Ill. 1974) this court concluded that § 118 of the Clean Air Act, 42 U.S.C. § 1857f, which is in pertinent part identical to § 313 of the Federal Water Pollution Control Act, did not, standing alone, constitute the required unequivocal waiver of immunity.

The court's observation that while § 118 tends to indicate the congressional intent to subject federal instrumentalities to the enforcement powers of the states, an equally reasonable interpretation of these words would be that this section was meant merely as a directive to federal agencies, applies equally to the case at bar, People of the State of Illinois v. United States, to which I have made reference and which is the subject of a memorandum of opinion to which I refer particularly to page 11.

The Supreme Court has stated that when the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts, Lynch v. United States, 292 U.S. 571, 582 (1934).

The plaintiff urges that a holding that § 313 does not waive immunity, frustrates the congressional intention as expressed in § 313, to subject the federal government to the enforcement powers of the states. Because, however, § 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365, contains the unequivocal waiver that § 313 lacks, this argument is not persuasive.

Captioned Citizens' Suits Authorization Jurisdiction, § 505 in pertinent part authorizes any citizen to commence a civil action against the United States or any other government instrumentality alleged to be in violation of a standard under the FWPCA or an order issued by the federal Environmental Protection Agency Administrator or a state with respect to such a standard.

The Act defines a citizen as a person or persons having an interest which is or may be adversely affected, § 505(g), 33 U.S.C. § 1365(g), and includes in the definition of "persons," a state, § 502(5), 33 U.S.C. § 1362(5).

Jurisdiction is established in the district court without regard to the amount in controversy or the citizenship of the parties, § 505(a), 33 U.S.C. § 1365(a). The legislative history, moreover, indicates that Congress intended that the directive in § 313 should be enforced by means of the suits authorized by § 505.

In its report the Senate Public Works Committee stated § 505 would provide that a citizen's enforcement action might be brought against an individual or government agency as recognized under § 313 of the bill. Federal facilities generate considerable water pollution. Since some federal agencies, such as the Department of Defense, have failed in abating pollution and in requesting appropriations to develop control measures, it is important to provide that citizens can seek through courts to expedite the government performance specifically directed under § 313, Senate Report No. 92-414, 92nd Congress, 2nd Session (1972); 2 U.S. Congressional and Administrative News 3746 (1972); Kentucky v. Ruckelshaus, __ F.2d __, [4 ELR 20484] 6 ERC 1644 (6th Cir. 1974).

The plaintiff asserts that Executive Order No. 11752 captioned "Prevention, Control, and Abatement of Environmental Pollution at Federal Facilities," supports the position that § 313 is an express waiver of immunity authorizing this action.

In pertinent part the order provides "[c]ompliance by Federal facilities with Federal, State, interstate, and local substantive standards and substantive limitations to the same extent that any person is subject to such standards and limitations, will accomplish the objective of providing Federal leadership and cooperation in the prevention of environmental pollution."

While it cannot be disputed that this order expresses an executive policy of federal agency compliance with state and local pollution standards, it is the consent of Congress, not the executive, that is material to a waiver of immunity. Moreover, the language in the order is similar to and as equivocal as the language in § 313.

The plaintiff contends further that § 313 must be a waiver of immunity, because § 306(c), 33 U.S.C. § 1316(c), constitutes an exception to such a waiver. Section 306(c) authorizes each state to submit to the administrator of the federal Environmental Protection Agency procedures for enforcing standards for performance for new sources, which upon a specific finding by the administrator, the state is authorized to enforce (except with respect to new sources owned or operated by the United States).

The argument appears to be that the exception for federal new sources implies that the state's standards may be enforced against other federal sources. Because, however, the argument assumes that § 313, and no other, waives the immunity of the United States, it is not persuasive. As this court has concluded, § 505 contains the applicable waiver of immunity.

Further, in support of its position, the plaintiff cites County of Milwaukee v. Veterans Administration Center, 357 F. Supp. 192 (D.C. Wis. 1973), and California v. Davidson, [1 ELR 20606] 3 ERC 1157 (N.D. Cal. 1971), neither of which can control the decision of this court.

In County of Milwaukee the court appears to have concluded, without setting forth any reasoning, that standing alone § 118 of the Clean Air Act constituted a waiver of immunity. In this respect the decision is contrary to the conclusion of this court in Department of Defense, to which I have previously made reference.

Moreover, the principal question presented in that case was whether an executive order exempted the defendant Veterans Administration Center from the § 118 directive that federal agencies shall comply with state and local standards.

In California v. Davidson, to which I have referred, the state, to enforce an order issued by the California Water Quality Control Board, sought an injunction against the commanding officer of a military facility. While the defendant's motion to dismiss on the ground of sovereign immunity was denied, the court did not consider, nor could it have, the relationship of § 313 and § 505 which [5 ELR 20719] were not enacted until after the decision was rendered.

Finally, the plaintiff relies on § 505(e), 33 U.S.C. § 1365(3), as support for the proposition that §§ 313 and 505 set forth alternative means by which to sue the federal government. Section 505(e) provides as follows: "Nothing in this section shall restrict any right which any person or class of persons may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief including relief against the administrator or a state agency."

The validity of this proposition depends on the assumption that § 313 constitutes an unequivocal waiver of immunity. Because, however, § 505 contains the only unequivocal waiver, § 505 is the only right by which any person may seek relief under the FWPCA against a federal agency.

In view of this court's conclusion that § 313 does not constitute a waiver of immunity, this action must, if it is to proceed, proceed according to the terms of § 505. Initially field in the state court, the complaint is silent as to § 505. Presumably, the plaintiff's failure to allege § 505 is explained by its express reliance on § 313, which as the court has noted, directs federal agencies to comply with state standards like those alleged by the plaintiff in the case at bar.

Nevertheless, in view of the absence of a § 505 allegation, the complaint might be dismissed on the grounds that it lacks a short and plain statement of the grounds upon which the court's jurisdiction depends as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure.

The defendants assert further that even if plaintiff were permitted to amend its complaint to include an allegation that the action is brought under § 505, the court would lack jurisdiction because the plaintiff has not complied with the notice requirement of § 505(b)(1)(A).

That section provides as follows:

B. No action may be commenced;

1. Under subsection (a)(1) of this section;

(a) prior to 60 days after the plaintiff has given notice of the alleged violation;

(i) to the administrator,

(ii) to the state in which the alleged violation occurs; and,

(iii) to any alleged violator of the standard, limitation or order.

At least two courts have allowed motions to dismiss grounded on the § 505 notice requirements, City of Ventnor v. Fri, [5 ELR 20029] 6 ERC 2104 (D.N.J. 1974); Smoke-Rise, Inc. v. Washington Suburban Sanitary Commission, [4 ELR 20427], No. 73-1031 (D. Md. 1974).

In Highland Park v. Train, [4 ELR 20677] 6 ERC 1464 (N.D. Ill. 1974), Judge Decker strictly applied the 60-day notice requirement in the Clean Air Act, § 304(b)(1)(A), 42 U.S.C. § 1857h-2(b)(1) (A), which served as a model for the § 505 notice requirement.

In Highland Park the plaintiff had not, prior to filing, given the required notice of intention to sue, and the court refused to accept the plaintiff's offer not to rely on the 60-day notice provision until 60 days after filing the action. Although that approach had been sanction[ed] in Riverside v. Ruckelshaus, [3 ELR 20043] 4 ERC 1728 (C.D. Cal. 1972), Judge Decker stated that "[s]uch an approach to the notice provision constitutes, in effect, judicial amendment in abrogation of explicit, unconditional statutory language and this court respectfully declines so to ignore or to modify the notice requirement," and held that scrupulous observance of the 60-day notice provision must be required.

Thus, plaintiff's failure to meet the notice requirement is fatal to jurisdiction under 42 U.S.C. § 1857h-2, 6 ERC 1464 at 1469. Accord, Pinkney v. Ohio EPA, [4 ELR 20461] 6 ERC 1625 (N.D. Ohio, 1974). Thereis no indication that the defendant or the administrator received 60-days notice of the intention of the Citizen's for a Better Environment to file an action before the Illinois Pollution Control Board or that any such notice was attempted.

In relying on § 313, the plaintiff apparently concluded that compliance with the § 505 notice requirement was unnecessary. And in Judge Decker's words it would be "judicial amendment in abrogation of explicit, unconditional statutory language" to hold that the action before the Illinois Pollution Control Board constitutes notice of this action to enforce the order to the Pollution Control Board and compel the defendants to permit state officials to enter the Joliet plant for inspection purposes.

The purpose of the notice provision is to establish a period for the compromise of disputes or correction of alleged violations prior to expenditure by either side of litigation, time and money, Highland Park v. Train, to which I have previously alluded, 6 ERC at 1469; Senate Report No. 92-414, 92nd Cong., 2nd Session (1972); 2 U.S. Cong. & Adm. News 3745 (1972).

Because the plaintiff has not complied with the notice requirement of § 505(b)(1)(A) of the Federal Water Pollution Control Act, this action is one to which the United States has not consented and the court, therefore, lacks jurisidction over the subject matter.

The complaint, accordingly, will be dismissed. It is unnecessary to reach any of the other issues raised in the memoranda filed by the parties.

Mr. Clerk, there will be an order as directed in this memorandum.