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Home My Public Portal AboutExhibit MSD 18H1 Counterclaim 112007 Doc 25Exhibit MSD 18H1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA, and STATE OF MISSOURI, Plaintiffs, v. Case No. 4:07 -CV -1120 (JCH) THE METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant. PLAINTIFF STATE OF MISSOURI'S ANSWER TO DEFENDANT'S COUNTER CLAIMS Plaintiff State of Missouri (herein State), through counsel, submits its answer to Defendant Metropolitan St. Louis Sewer District's (herein MSD) counterclaims as follows: Counterclaim I: Liability Under Clean Water Act $309(e) 1. The contents of Section 309(e) of the Clean Water Act (herein "CWA"), 33 U.S.C. § 1319(e), speaks for itself. The State further denies the allegations of paragraph 1 to the extent that they are inconsistent with the Section 309(e) of the CWA. 2. The allegations made in paragraph 2 are legal conclusions requiring no response by the State. To the extent a response is required, the State admits that MSD is a "municipality" as that term is defined in §502(4) of the CWA, 33 U.S.C. § 13624(4). The State denies all remaining allegations in paragraph 2. 3. The allegations made in paragraph 3 are legal conclusions requiring no response by the State. To the extent a response is required, the State admits that Article X, Sections 16-24 of the Missouri Constitution are known as the "Hancock Amendment." Furthermore, the contents of Article X, Sections 16 of the Missouri Constitution speak for itself. The State denies all the remaining allegations of paragraph 3. 4. The contents of Article X, Section 22 of the Missouri Constitution speaks for itself. The State denies the allegations of paragraph 4 to the extent that they are inconsistent with Article X, Section 22 of the Missouri Constitution. 5. The allegations made in paragraph 5 are legal conclusions requiring no response by the State. To the extent a response is required, the State denies these allegations. 6. The statements made in paragraph 6 are legal conclusions requiring no response by the State. To the extent a response is required, the contents of Article VI of the Missouri Constitution speak for themselves. The State denies all the remaining allegations of paragraph 6. 7. The State lacks sufficient information and knowledge so as to form a belief with respect to the truth or falsity of the allegations of paragraph 7 and, therefore, denies these allegations. 8. The State lacks sufficient information or knowledge so as to form a belief with respect to the truth or falsity of the allegations contained in paragraph 9 and, therefore, denies these allegations. 9. The State lacks sufficient information or knowledge so as to form a belief with respect to the truth or falsity of the allegations contained in paragraph 9 and, therefore, denies these allegations. 10. The State denies the allegations in paragraph 10. 11. The State denies the allegations in paragraph 11. 2 12. The State denies the allegations in paragraph 12. 13. The State denies the allegations in paragraph 13. Counterclaim II: Indemnity 14. The State incorporates, by reference, its responses to paragraphs 1 through 13 as though fully set forth herein. 15. The allegations in paragraph 15 are legal conclusions requiring no response by the State. To the extent a response is required, the State denies these allegations. 16. The allegations in paragraph 16 are legal conclusions requiring no response by the State. To the extent a response is required, the State denies these allegations. Prayer for Relief The allegations in MSD's Prayer for Relief are legal conclusions requiring no response by the State. To the extent a response is required, the State denies that MSD is entitled to any relief whatsoever. The State further denies any and all allegations in MSD's counterclaims not specifically admitted or denied herein. Affirmative Defenses As a further answer and affirmative defense to MSD's counterclaims, and without prejudice to its previous denials, the State states: 1. MSD fails to state a claim upon which relief may be granted; 2. MSD's claims, or parts thereof, are barred by the applicable statute of limitations; 3. The State asserts the defense of collateral estoppel, or issue preclusion; 4. The State asserts the defense of res judicata, or claim preclusion; 5. MSD's claims are balled by the doctrines of waiver and unclean hands; 3 6. To the extent that MSD's claims are fraudulent, they are barred; 7. MSD lacks proper standing to bring this action; 8. The Court lacks proper subject matter jurisdiction over these claims; 9. The Court should not exercise its supplemental jurisdiction to hear these claims; 10. The State is entitled to Eleventh Amendment immunity from MSD's claims; 11. The State is entitled to sovereign immunity from MSD's claims; 12. MSD's counterclaims are not yet ripe for adjudication and are barred; 13. MSD's user charges and user fees are not taxes subject to the Hancock Amendment; 14. MSD has failed to allege any new or expanded activity or a shifting of the tax burden necessary to state a claim pursuant to the Hancock Amendment; 15. The Hancock Amendment does not apply to claims arising from compliance with the CWA; 16. MSD is not a taxpayer and, therefore, lacks standing to bring a claim pursuant to the Hancock Amendment; 17. MSD has failed to exhaust its administrative remedies; 18. The Missouri Constitution does not prohibit MSD from raising the revenue needed to remedy MSD's numerous illegal overflows or complying with any orders this Court may impose as relief to the claims against MSD in this matter; 19. Venue is not proper in this Court; 20. MSD's claims are barred by the doctrine of laches; 21. MSD has failed to mitigate its damages 4 2O/200 22. MSD's defense of impossibility and impracticability are not, as a matter of law, valid defenses to the claims in plaintiffs' complaint and should be stricken. 23. The State incorporates each and every additional affilinative defense that may be uncovered or made known during the investigation and discovery in this case. Therefore, the State respectfully reserves the right to amend its answer to include any additional defenses at the time they are discovered. WHEREFORE, the State denies that MSD is entitled to any relief for these counterclaims and pray this Court to enter an order dismissing these claims, with prejudice, that judgment be entered in the State's favor, that costs be assessed against MSD, and for such other and further relief as this Court deems just and proper. Respectfully Submitted, JEREMIAH W. (JAY) NIXON Attorney General /s/Joseph P. Bindbeutel JOSEPH P. BINDBEUTEL Senior Chief Counsel Agriculture and Environment Division Missouri Bar Number: 28656 P.O. Box 899 Jefferson City, MO 65102 (573) 751-8805 phone (573) 751-8796 facsimile ATTORNEYS FOR PLAINTIFF STATE OF MISSOURI 5 CERTIFICATE OF SERVICE I hereby certify that on this day of November, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent electronic notification to the following: Terry J. Satterlee Thomas J. Greyer SHOOK AND HARDY, L.L.P. 2555 Grand Boulevard Kansas City, MO 64108 816-559-2374 Fax: 816-421-5547 Email: . John Gianoulakis Robert F. Murray KOHN AND SHANDS One U.S. Bank Plaza Suite 2410 St. Louis, MO 63101 314-241-3963 Fax: 314-241-2509 Email: Attorneys for Defendant/Counter Plaintiff Metropolitan St. Louis Sewer District 6 Kathryn MacDonald U.S. DEPARTMENT OF JUSTICE P.O. Box 7611 Washington, DC 20044 202-353-7397 Email: Attorney for Plaintiff United States of America Edward J. Heisel WASHINGTON UNIVERSITY SCHOOL OF LAW One Brookings Drive Campus Box 1120 St. Louis, MO 63130 314-935-8760 Fax: 314-935-5171 Email: Attorney for Intervening Plaintiff Missouri Coalition for the Environment Foundation /s/Joseph P. Bindbeutel JOSEPH P. BINDBEUTEL