HomeMy Public PortalAboutExhibit MSD 18H2 Counterclaim 112007 Doc 26Exhibit MSD 18H2
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.
State of Missouri's Motion to Dismiss Metropolitan St. Louis Sewer District's
Counterclaim and to Strike Affirmative Defenses
In its counterclaims and affirmative defenses, Defendant Metropolitan St. Louis Sewer
District ("MSD") tries to shift liability to the State of Missouri ("State"). Under Section 309(e)
of the Clean Water Act ("CWA"), 33 U.S.C. 1319(e), ("309(e)"), if a state's laws prevent a
municipality from paying a judgment or expenses arising from a CWA enforcement case, then
that state is liable.' MSD alleges that Missouri law prevents prevent MSD from raising revenue,
thereby preventing MSD from paying the judgment and expenses that will result from this
action.
Section 309(e) of the Clean Water Act ("CWA"), 33 U.S.C. 1319(e) reads as follows:
State liability for judgments and expenses
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.
Put simply, this is not the case. After years of litigation challenging MSD's rates under a
prior rate structure, MSD obtained a final decision in state appellate court establishing that under
its current rate structure it can raise the revenue needed operate its system, and these operations
necessarily include the cost of complying with federal water pollution laws and any judgment of
this court. As a consequence, the State has no possible liability under § 309(e) for the judgment
and expenses incurred by MSD in this case. In addition, the Hancock Amendment to the
Missouri Constitution, which MSD relies upon, has no application to the federal requirements
cited in the complaint, and MSD cannot raise the Hancock Amendment because MSD lacks
standing and state sovereign immunity applies. Thus, the counterclaims fail to state a claim and
the affirmative defenses lack merit. Finally, this court lacks jurisdiction to hear MSD's
counterclaims because of Eleventh Amendment immunity. Therefore, for these and other
reasons established in the Memorandum in Support, this court should dismiss MSD's
counterclaims against the State and strike those affirmative defenses that are based on the same
or similar grounds.
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
Document 2Fi
CERTIFICATE OF SERVICE
I hereby certify that on this 20`h 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 MO Bar # 23695
Thomas J. Greyer MO Bar # 53487
SHOOK, HARDY & BACON L.L.P.
2555 Grand Boulevard
Kansas City, Missouri 64108-2613
Telephone: (816) 474-6550
Telecopier: (816) 421-5547
Email:
Email:
Attorney for Defendant Metropolitan St. Louis Sewer District
Robert F. Murray #36547
John Gianoulakis #3207
KOH7 , SHANDS, ELBERT, GIANOULAKIS &
GILJUM, LLP
One US Bank Plaza, 24th Floor
St. Louis, Missouri 63101
Telephone: (314) 241-3963
Telecopier: (314) 241-2509
Email:
Email:
Co -Counsel for Defendant The Metropolitan St.
Louis Sewer District
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