ELR Citation: ELR 20509
No(s). s. M88-107CA, M88-108CA (W.D. Mich. Oct 26, 1989)

The court holds that it lacks jurisdiction over a counterclaim against the Environmental Protection Agency (EPA) and a cross-claim against the state in EPA's enforcement of a Federal Water Pollution Control Act (FWPCA) National Pollutant Discharge Elimination System (NPDES) permit. The counterclaim and cross-claim allege that the NPDES permit that EPA is enforcing has been superceded by a later consent judgment entered with the state government in state court. The FWPCA does not provide jurisdiction for the counterclaim and cross-claim, and while the Administrative Procedure Act may waive sovereign immunity, it does not confer jurisdiction. Similarly, the Eleventh Amendment bars jurisdiction over the cross-claim against the state. The counterclaim may also be treated as a statement of affirmative defenses. However, the court holds that the consent judgment did not supercede the original NPDES permit. EPA had objected to the new effluent limits contained in the consent judgment, and EPA's objections were never cured. Moreover, there is sufficient evidence that EPA objected within the FWPCA's 90-day time limit to survive a motion for summary judgment. EPA's letter of objection met the FWPCA's requirements for specificity. Although EPA did not act after objecting to the consent judgment, once EPA objects it is not required to renew its objections and EPA did not waive its objections. EPA is not equitably estopped from enforcing the suit. Since the only misconduct is inaction, not affirmative misconduct, the permittee had a duty to inquire about what permit governed. Similarly, laches is not a defense in government enforcement actions. The consent judgment did not finally litigate the effluent limits because the FWPCA preserves EPA's right to object. Finally, comity between the federal and state governments is not jeopardized, because the consent judgment concerns different violations than those that EPA is prosecuting here.

Counsel for Plaintiff
Thomas J. Gezon, Ass't U.S. Attorney
399 Federal Bldg., 110 Michigan St. NW, Grand Rapids MI 49503
(616) 456-2404

Daniel Jacobs, Peter W. Colby
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4076

Counsel for Defendant
H.G. Sparrow III, Claudia Rast
Dickinson, Wright, Moon, Van Dusen, & Freeman
800 First National Bldg., Detroit MI 48226
(313) 223-3500