ELR Citation: ELR 20272
No(s). 88 C 5407 (N.D. Ill. Sep 21, 1989)

The court holds that Federal Water Pollution Control Act (FWPCA) §313(a), the federal facilities provision, waives sovereign immunity for civil penalties assessed under federal law. A sanitary district sued the Navy, charging that the Navy violated its sewer discharge permit. The court first holds that it has subject matter jurisdiction. This is not a citizen suit under FWPCA §505, and so it does not matter that the sanitary district did not comply with §505's 60-day notice requirement. Instead, this suit is filed under FWPCA §313(a), the federal facilities provision, and so the court has federal question jurisdiction over the lawsuit. The court next holds that §313(a) waives the federal government's sovereign immunity for civil penalties assessed under federal law. The court first dismisses the sanitary district's arguments that the Navy has waived sovereign immunity or is estopped from asserting it, noting that only Congress can waive sovereign immunity. The court next analyzes the text of the FWPCA, noting that §101(a) declares a policy of coercing polluters, and that §313(a) makes federal facilities subject to "all" requirements and "sanctions respecting the control and abatement of pollution." Sanctions include civil penalties. The court notes legislative history supporting this conclusion. The court observes that §313(a) limits the waiver of sovereign immunity to "civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court." The court declines to decide whether the civil penalties sought in this case "arise under federal law."

Counsel for Plaintiff
Paul D. Lindauer Jr., Allen S. Lavin
The Metropolitan Sanitary District of Greater Chicago
100 E. Erie, Chicago IL 60611
(312) 751-5600

Counsel for Defendant
James J. Kubik, Ass't U.S. Attorney
U.S. Attorney's Office
219 S. Dearborn St., Chicago IL 60604
(312) 353-5300