415 Ill. Comp. Stat. 5/1, et seq. and the Act Relating to the
National Pollutant Discharge Elimination Permit program by
improperly allowing water pollutants to be released from the JAAP
into wastestreams and outfalls, ultimately ending up in Prairie
Creek, a tributary of the Kankakee River, and Jackson Creek, a
tributary of the Des Plaines River. In arguing against federal
jurisdiction, the State claims that they are suing the Army in
its role as a property owner and that the fact that it is a
federal agency is merely "incidental." They also contend that
the Army lacks a colorable federal defense. As a result, the
State urges this Court to conclude that subject matter
jurisdiction never existed over this claim and, therefore, it
should be remanded back to state court. The Army argues that the
State’s suit meets the requirements of the federal agency removal
statute, § 1442, in that the Complaint is brought against a
federal agency and that the Army has a colorable federal defense.
The Army removed the Complaint pursuant to § 1442 (a) (1)
which reads, in pertinent part: "(a) A civil action
commenced in a State court against any of the following may be
removed by them to the district court of the United States for
the district and division embracing the place wherein it is
pending: (1) Any officer of the United States or any agency

4


CONCLUSION
For the forgoing reasons, the Court grants Plaintiff's

petition for remand.

ENTER
J Se \
Da 271 A rouee hy
red M. MAROVICH
red STATES DISTRICT JUDGE

‘ade 16 Ace!



color of federal law. This Court concurrs with the Eastern
District of New York when it stated “the Court is at a loss to
understand how a federal agency-- . -. - as opposed to a federal
official--can act in any way but ‘under color’ or ‘officially.’"

Moreland v. Van Buren GMC, 93 F. Supp. 2d 346, 352 (E.D.N.Y.

1999).

II. Colorable Federal Defense

Having found that the Army is a federal agency acting under
color of federal law, this Court is faced with the final
requirement of removal--whether the Army has a colorable federal
defense. The Army asserts that it has a colorable federal
defense of sovereign immunity. It argues that the United States
has not waived its sovereign immunity from liability under the
Clean Water Act or supplanting state law. The State argues to
the contrary that the United States has specifically waived its
immunity to these types of actions.

The Federal Water Pollution Control Act ("Clean Water Act")
states: "Each... agency... engaged in any activity
resulting, or which may result, in the discharge or runoff of
pollutants .. - shall be subject to, and comply with, all
Federal State, interstate, and local requirements, administrative
authority and process and sanctions respecting the control and

6


thereof . . . for any act under color of such office." 28 U.S.C.
§ 1442(a) (1). Additionally, "Section 1442 does not permit
removal on the federal party's say-so; there must be a bona fide

federal defense to the claim based on state law." Venezia v.

Robinson, 16 F.3d 209, 211 (7th Cir. 1994) (citing Mesa _v.

California, 489 U.S. 121 (1989)). Both parties agree that the

Army is indeed an agency of the United States. The two points of
contention are: whether the Army acted under color of federal
law; and whether the Army has a colorable federal defense.

I. Under Color of Federal Law

In a single paragraph of its Motion to Remand, the State
notes that "the Army was sued because it is the owner and
operator of a state regulated site. The fact that the Army is a
federal agency or operates under a department of the federal
government is incidental, and was irrelevant to the People’s
decision to initiate this enforcement action against the Army."
(Mot. to Remand at 3) Presumably, the State is attempting to
argue that they are suing the Army for actions it took as a
landowner and, therefore, such actions were not “under color of
federal law." The State abandons this posture in its reply
brief. This Court finds that the Army, which ran the JAAP to
manufacture and assemble ammunition, was undoubtedly acting under

5


Additionally, this Court is not persuaded by the Army’s
gingle footnote that it "may have additional federal defenses."
(Resp. to Mot. to Remand at 7, n.6) While the United States need
not prove its ability to succeed in bringing its defense, it must
at least allege sufficient facts to support a colorable defense.
State v. Ivory, 906 F.2d 999, 1002 (4th Cir. 1990). The only
possible alternative federal defense offered by the Army in its
footnote is that the Army has been addressing some of the cleanup
through a remedial action under CERCLA and that, pursuant to 42
U.S.C. § 9621(e), the Army is not required to obtain any permits.
The Army, as the removing party, bears the burden of establishing

federal jurisdiction. In_re County Collector of Winnebago, 96

F.3d 890, 895 (7th Cir. 1996). This Court finds that the Army
cannot meet such a burden by including a single footnote of such
a conclusory nature. The Army has not provided sufficient legal
or factual argument to convince this Court of the existence of a
colorable federal defense. As such, the Court finds that the
Army has failed to establish federal jurisdiction and this matter

must be remanded to the Circuit Court of Will County.


Minute Order Form (06/97)

SS-6 United States District Court, Northern District of Tilinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge George M. Marovich than Assigned Judge
CASE NUMBER 00 C 8121 DATE 7/18/2001
CASE People of the State of {llinois, ex rel. James E. Ryan vs.
TITLE United States Department of the Army
[in the following box (a) indicate the party filing the motion, eg. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.]
r
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due, . Reply to answer brief due
(4) a Ruling/Hearing on set for at
(5) ia) Status hearing[held/continued to] [set for/re-set for] on _ set for at
(6) Oo Pretrial conference{held/continued to] [set for/re-set for] on set for at
(7) im) Trial[set for/re-set for] on at
(8) im) (Bench/Jury trial] (Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) General Rule21 OFRCP41(a)(1) OC FRCP41(a)(2).
(10) Wl [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER. The Court
grants plaintiff's petition for remand.
qi) «of [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required. umber of notices
Notices mailed by judge’s staff. n,
Notified counsel by telephone. J U 29. 2001
Y | Docketing to mail notices. ®
Mail AO 450 form. docketing deputy initials
Copy to judge/magistrate judge. z
0) JUL 19 Fil 3 49 date mailed notice
courtroom
ID deputy’s
initials
Date/time received in
| contral Clerk’s Office mailing deputy initials



abatement of water pollution in the same manner, and to the same
extent as any nongovernmental entity . . . This subsection shall
apply notwithstanding any immunity of such agencies, officers, or
employees under any law or rule of law." 33 U.S.C. § 1323(a).
This Section of the Clean Water Act has been interpreted by the

United States Supreme Court in United States Department of Energy

v. Ohio, 503 U.S. 607 (1992). Both parties agree that that case
holds that "Congress waived immunity to coercive fines, which
look to the future and attempt to compel obedience to a court
order[, and preserved] immunity to punitive fines, which look
backwards at past violations." (Resp. to Mot. to Remand at 7;
see also Reply in Support of Mot. to Remand at 6)

Thus, the dispositive factor of the waiver determination is
whether this Complaint seeks damages for past violations, or
damages to coerce future compliance. A review of the Prayers for
Relief in each of the ten counts of the Complaint makes clear
that the relief sought is strictly injunctive against future
violations coupled with fines to prevent such violations.

(Compl. at 10-34) As previously explained, the United States has
explicitly waived sovereign immunity for this type of action.

United States Department of Energy v. Ohio, 503 U.S. 607, 627

(1992).


as well as some of the issues which were slowing down the cleanup
process and delaying some of the projected completion dates.

The IEPA performed another inspection on the JAAP facility
on June 26, 2000. At that time, an Army contractor informed the
IEPA that the Army would investigate further remediation at the
facility. Subsequently, the State filed a complaint premised on
the alleged ongoing violations which it observed at the JAAP.

The Complaint alleges that the Army is allowing water pollutants
to be released from the JAAP into wastestreams and outfalls,
which ultimately end up in Prairie Creek, a tributary of the
Kankakee River, and Jackson Creek, a tributary of the Des Plaines
River, in violation of the Illinois Environmental Protection Act,
415 Ill. Comp. Stat. 5/1, et seq. and the Act Relating to the
National Pollutant Discharge Blimination Permit program. The
Army removed the Complaint to this Court and the State now moves
to remand the matter back to the Circuit Court of Will County.

DISCUSSION

When assessing a petition for remand, the lack of subject
matter jurisdiction or a defect in the removal procedure requires

that the case be remanded. In_re Amoco Petroleum Additives Co.,

964 F.2d 706, 708 (7th Cir. 1992). The State’s Complaint alleges
that the Army violated the Illinois Environmental Protection Act,

3


Illinois alleging subject matter jurisdiction because the suit is
a civil suit against the United States, pursuant to 28 U.S.C. §
1442 (a) (1) ("§ 1442"). The State now moves to remand this case
back to state court. For the reasons set forth below, we grant
the State’s petition.

BACKGROUND

For decades the Army has manufactured and assembled
ammunition at the Joliet Army Ammunition Plant ("JAAP") in will
county, Illinois. Although it is not entirely clear from the
pleadings, the Army has closed or is in the process of closing
the JAAP. On May 18, 1998, the Illinois Environmental Protection
Agency ("IEPA") performed an inspection of the JAAP to evaluate
its compliance with Lllinois's environmental regulations. On
July 14, 1998, the IEPA issued a violation notice to the Army.
The Army provided the TEPA with a written response on September
1, 1998. That response addressed issues raised in the violation
notice and provided the Army’s explanations for various
violations.

On March 30, 1998 the IEPA returned to the JAAP and again
performed an inspection. At that time, the Army provided the
IEPA some information regarding the current status of the Army's
cleanup efforts and projected completion dates. On June 8, 1999,

the Army issued a letter to the IEPA explaining their progress,


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PEOPLE OF THE STATE OF
ILLINOIS, ex rel. JAMES E.
RYAN, Attorney General of the
State of Illinois,

DOCKETED
JUL 2 0 2001

Plaintiff, oo c 8121

Vv. Judge George M. Marovich

UNITED STATES DEPARTMENT
OF THE ARMY,

Defendant.

MEMORANDUM OPINION AND ORDER

Relator People of the State of Illinois ("State"), filed a
Complaint against the United States Department of the Army
("Army") in the Circuit Court of Will County, Illinois. The
State alleges violations of the Illinois Environmental Protection
Act, 415 Ill. Comp. Stat. 5/1, et seq. and the Act Relating to
the National Pollutant Discharge Elimination Permit program. In
a ten-count complaint, the State claims that the Army improperly
allowed water pollutants to be released from its Joliet Army
Ammunition Plant into wastestreams and outfalls, ultimately
ending up in Prairie Creek, a tributary of the Kankakee River,
and Jackson Creek, a tributary of the Des Plaines River.

The Army subsequently filed a notice of removal with the

United States District Court for the Northern District of