The opinion of the court was delivered by: MUIR
I. PROCEDURAL AND FACTUAL HISTORY.
This is a citizen's suit allegedly brought under 33 U.S.C. § 1365(b). See Pennsylvania Environmental Defense Foundation's amended complaint, para. 1. Pennsylvania Environmental Defense Foundation (Foundation) filed an amended complaint on December 6, 1988, in which it named as Defendants the State Correctional Institution at Rockview (Rockview), Joseph Mazurkiewizc [sic], Clarence Peters, and David Lapinski. Mazurkiewicz has submitted to the Court an unsworn declaration under penalty of perjury in which he signed his last name "Mazurkiewicz." See attachments to the Defendants' brief filed January 30, 1989, in opposition to the Foundation's motion for partial summary judgment. We will in the caption and hereafter spell this Defendant's last name as he does and will direct the Clerk of Court to amend the docket sheet accordingly. The Foundation alleges in its amended complaint that the latter three Defendants who are natural persons are supervisory personnel at Rockview and that Rockview has repeatedly violated the terms of its National Pollutant Discharge Elimination System permit by discharging from its sewage treatment plant more pollutants than authorized into Spring Creek, located in Centre County, Pennsylvania.
On December 15, 1988, Rockview filed a motion to dismiss the Foundation's amended complaint against it. Rockview predicated its motion to dismiss upon its contention that the Foundation's cause or causes of action against it were barred by the Eleventh Amendment to the United States Constitution. The Foundation opposed Rockview's motion to dismiss on the ground that the Commonwealth of Pennsylvania had explicitly waived its Eleventh Amendment immunity in this instance. By order of February 14, 1989, we granted Rockview's motion to dismiss the Foundation's amended complaint against it because we concluded the Foundation had failed to demonstrate that the Commonwealth of Pennsylvania had waived its Eleventh Amendment immunity for purposes of this case.
On January 24, 1989, Defendants Mazurkiewicz and Lapinski filed a motion to dismiss the Foundation's amended complaint against them. Mazurkiewicz and Lapinski filed a brief in support of their motion to dismiss on February 7, 1989. The Foundation filed on February 21, 1989, a brief in opposition to Mazurkiewicz's and Lapinski's motion to dismiss. Mazurkiewicz and Lapinski have not filed a reply brief. See Local Rule 401.7.
Mazurkiewicz and Lapinski make two arguments in support of their motion to dismiss: (1) the Foundation's claims against them in their official capacities are barred by the Eleventh Amendment to the United States Constitution and (2) the Foundation failed to give Mazurkiewicz the advance notice required by 33 U.S.C. § 1365(b)(1)(A) which is necessary before a person may commence a citizen's suit under 33 U.S.C. § 1365(a)(1). Mazurkiewicz and Lapinski do not argue that Lapinski is entitled to have this action dismissed against him if we conclude that the Foundation did not give Mazurkiewicz the advance notice to which he was entitled. We now turn to a discussion of the two arguments made by Mazurkiewicz and Lapinski in support of their motion to dismiss.
A. Whether the Foundation's claims against Mazurkiewicz and Lapinski in their official capacities are barred by the Eleventh Amendment.
1. Parameters of the Eleventh Amendment.
In the absence of consent by a state, the Eleventh Amendment prevents a state or one of its agencies or departments from being sued in federal court. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99-100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). The prohibition created by the Eleventh Amendment against suing a state or one of its agencies or departments in federal court applies regardless of the nature of the relief sought in the suit. Id. at 100-101. When a suit is brought only against a state official, a question arises as to whether the suit is a suit against the state itself. "The general rule is that a suit [which nominally seeks relief against an official] is [in fact] against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.'" Pennhurst, 465 U.S. at 101 n.11 (quoting Dugan v. Rank, 372 U.S. 609, 620, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963)). A suit against state officials that is in fact a suit against a state is barred regardless of what type of relief is sought. Pennhurst, 465 U.S. at 101-102.
The Eleventh Amendment jurisprudence outlined above shields states, the agencies and departments of states, and state officials from being sued in federal court under various circumstances. However, the United States Supreme Court has recognized an important exception to the above-discussed immunity from suit in federal court: a suit brought against a state official in which it is alleged that the official's actions are in violation of the United States Constitution or federal law is not barred by the Eleventh Amendment and may be brought in federal court even though the state is the real, substantial party in interest. Cf. Edelman v. Jordan, 415 U.S. 651, 664, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Ex parte Young, 209 U.S. 123, 159-160, 52 L. Ed. 714, 28 S. Ct. 441 (1908); Pennhurst, 465 U.S. at 102-103; U.S. Const. art. VI, cl. 2 (the supremacy clause). The theory behind this exception to the Eleventh Amendment bar to suing certain people or entities in federal court is that when the action of a state official violates the federal constitution or federal law, the official's action is "illegal" and therefore "the state has no power to impart to [the official] any immunity from responsibility to the supreme authority of the United States." Ex parte Young, 209 U.S. at 159-160; see also Pennhurst, 465 U.S. at 102.
When a state official is sued in federal court in circumstances in which the state is the real party in interest and in which the official's conduct is alleged to violate the United States Constitution or federal law there is a limit to the type of relief which the federal court may award against the official. The federal court may not award a monetary judgment against the official which will inevitably be paid from public funds in the state treasury. Edelman v. Jordan, 415 U.S. at 663-665. Additionally, the federal court may not enter an injunction which directs that a retroactive award of money be made when the award will in fact be paid from public funds. Pennhurst, 465 U.S. at 102-103; Edelman v. Jordan, 415 U.S. at 665-669. A federal court may only award in such circumstances an injunction that governs the state official's future conduct. Pennhurst, 465 U.S. at 102-103; see Edelman v. Jordan, 415 U.S. at 664-669.
The Supreme Court in Edelman v. Jordan realized that an injunction which governs only a state official's future conduct may nonetheless require the state to spend more money from its treasury than it would have spent if no such injunction had been entered. The Court went on to explain why an injunction which awarded only prospective relief did not violate the Eleventh Amendment despite the expense to the state caused by such an injunction:
As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365 [29 L. Ed. 2d 534, 91 S. Ct. 1848] (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254 [25 L. Ed. 2d 287, 90 S. Ct. 1011] (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.
2. Mazurkiewicz's and Lapinski's Eleventh Amendment argument.
The argument made by Mazurkiewicz and Lapinski that the Foundation's claims against them in their official capacities are barred by the Eleventh Amendment may be broken down into two smaller contentions: (1) the relief demanded by the Foundation would in fact operate against the Commonwealth of Pennsylvania and therefore this suit is barred by the Eleventh Amendment and (2) the Foundation's amended complaint does not allege individual conduct by Mazurkiewicz or Lapinski violative of the federal ...