Opposition Brief — Wisconsin v. Illinois

Supreme Court brief1940

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Ocrozzn Tena, A. D.°1940 0 OER

State oF Wisconsin, State or Minnesota, State )

or On1o and Stare oF PENNSYLVANIA,

Complainants, No. 2

vs. ae

Original

Srarz or Inurnors and Tue Sanitary District ae

or CuHIcaco,

Defendants.

StaTE oF MICHIGAN, :

nia Complainant, No.3

Srate or Inurnois and’T'He Sanitary District - Original

or CHICAGO,

Defendants.

State or New York,

4 aac Complainant, No. 4

‘inal

State or Itiinois and THe Sanitary District Origma

oF CHICAGO,

Defendants. y

BRIEF OF

WISCONSIN, MINNESOTA, OHIO, PENNSYLVANIA,

MICHIGAN AND NEW YORK IN OPPOSITION TO

ILLINOIS’ EXCEPTIONS TO THE REPORT OF THE

SPECIAL MASTER DATED MARCH 31, 1941.

. Jo oun E. Marten, Attorney General of Wisconsin, } é

tar fy SSS Burnauist, Attorné&y General of Minnesota, 4

Tuomas J. Herpert, Attorney General of Ohio,

Cirauve T. Reno, Attorney General of Penrisylvama,

ARRINTON ApamMs, Deputy Attorney General of Pennsylvania,

ERBERT J. RusHton, Attorney General of Michigan,

James W. Wriuiams, Assistant Attorney General of Michigan,

Joun J. Bennett, Jr., Attorney General of New York,

Trmoruy F. Conan, Assistant Attorney General of New York,

“\. Hersert H. Navsoxs, Special Assistant to the Attorneys General.

Filed: April 30, 1941.

“

—_

a ‘

EL ETL

PRINTED BY CHICAGO LAW PRINTING CO.

INDEX. .

A History and Statement of the Case ............

. The Order of the Court, Dated April 3,.1940

III.

. The Findings of Fact and Recommendations

The wine of Taste cE Ee ie oe.

of the Special PEGE OE rca erennmeerereeerd rae RES

. The Exceptions Filed by Illinois to the Report

oF ar Cena seeeee 2 ee

. The Exceptions Filed by Wisconsin, et al., to

the Report of the Special Master ....................

. Data Concerning the Complaining Communi-

ties, viz., Joliet and Lockport, Illinois ............

. The Record Conclusively Establishes that ‘‘the

actual condition of the Illinois Waterway as

the result of receiving untreated sewage’’,

while never wholly satisfactory, has not in

the past resulted in nor caused any nuisance

condition affecting puslic health and the .

actual condition today is ‘ot such as to cause

or result in any nuisance vondition affecting

health, and no increase in diversion o’ water

from Lake Michigan, though temporary in

nature, is necessary to protect the health of

the inhabitants of the complaining communi-

RRS Sa ES

i Te

eee Oe TT ee OTE Te a

. The request of Illinois for a controlled in-

creased diversion of water from Lake Michi-

gan during 1941 and 1942 in an amount suffi-

cient. to insure one part per million of dis-

solved oxygen in the Brandon Road Pool is

wholly without merit ................ eles ateechides

18-39

18-30

30-36

‘li ke

X. The ten-day flushing test resulted in a very

XI.

XII.

XIII.

decided improvement of the Illinois Water-

way from Chicago through the Brandon Road

he ete ARR Daten Wl ue catty a eaR Rg OP

The record conclusively establishes that the

actual condition of the Illinois Waterway by

reason of the introduction of untreated sew-

age therein has not constituted and does. not

now constitute a menace to the health of the

inhabitants of the complaining communifies

and no increase in the diversion of water from

Lake Michigan, though temporary in nature,

is necessary to protect the interests of public

health along the Illinois Waterway ................

The record shows that annoyance, discom-

fort and inconvenience only were suffered by

some people at Joliet and Lockport, chiefly

during the summer of 1939...

Complaints concerning nausea ........._.

. Complaints with respect to insomnia

Complaints concerning loss of appetite...

. Retarding of recovery of hospital patients

General undermining of health .........

PE I

- Mortality and communicable disease statis-

ce Ge Oe ee TE Tene Pe ew ae

Hydrogen sulphide 000000

. Records of sick leave of employees of U.S.

District Engineer at Chicago .......

Expert testimony on health question ..........

Absence of testimony by health authorities

C6 SI OE TU oe

Illinois’ Contention That no Measurable Harm

Will Be Done the Great Lakes States by the

Increased Diversion From Lake Michigan as

Requested in the Modified Pefition of Illinois,

Is Wholly Without Merit

or Fr RRA of

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69-70 3

71-73

itis 7

ili

XIV. The Special Master’s Recommendation for a

Decree Dismissing the Petition and Modified

Petition of the State of Illinois and Taxing

Costs Against the State of Illinois Should Be

OIE ooo ae eee oat i

Oe I an ee

XVI. Appenpix I. Argument in Support of Excep-

tions Filed by the States of Wisconsin, Minne-

sota, Ohio, Pennsylvania, Michigan and New

York to the Report of Special Master Lemann,

Gatocs Minwils Sh 2OG cia cesses eccnee

XVII. Appenprx IT. Index to opposing Lake States’

Argument on Exceptions of the State of Illi-

oasis clcc rc cauebeensbenrnties esa cade bieatetcanicn

PAGE

73-74

‘e

IN THE

Ocroser Term, A. D. 1940

Srare or Wisconsin, StaTe or Minnesota, State )

or Ouro and Srare or PENNSYLVANIA,

Complainants,

vs.

Srate oF Inurnois and Tue Sanrtary District

}

; or CHICAGO,

Defendants.

| State oF MICHIGAN,

Complainant,

vs. ti aa

Srare or Inurnors and Tue Sanrtary District

: or CHICAGO, |

| Defendants.

Srate or New York,

wis Complainwu,

or CHICAGO,

Defendants. }

Sa@re or Ittrvois and THe Sanitar” District

' BRIEF OF

SUPREME COURT OF THE UNITEDS STATES

——————————————————ooooooeeaesqs=<=Qa00S000—0—09mm9a99an9W“

WISCONSIN, MINNESOTA, OHIO, PENNSYLVANIA,

| MICHIGAN AND NEW YORK IN OPPOSITION TO

ILLINOIS’ EXCEPTIONS TO TEE REPORT OF THE

SPECIAL MASTER DATED MARCH 31, 194i.

) | ee

PART ONE °

A. NATURE OF THE ACTION AND ISSUES IN.

VOLVED. /

. I. A HISTORY AND STATEMENT OF THE CASE.

The State of Wisconsin filed the first of these bills on

July 14, 1922. The Wisconsin bill was amended on Octo-

ber 5, 1925, and the State of Minnesota, Ohio and Pennsyl-

vania became co-plaintiffs. The amended bill sought an

injunction restrairiing the State of Illinois and the Sanitary

District of Chicago fregy causing any water to be taken

from the Great Lakes-St. Lawrence watershed. in such

manner as permanently to divert the same from that

watershed. On April 8, 1926, the State of Michigan filed

a separate bill for the same relief. On October 18, 1926

the State of New York filed a separate bill for the same

relief. Subsequently the three suits were consolidated

for the purpose of hearing (Wisconsin v. Illinois, 278 U. §.

‘367, 369-70) and: heard by Hon. (now Chief Justice)

Charles Evans Hughes as Special Master.

Thereafter the Special Master duly filed his Report in

which he found that the diversion of water from the Great

Lakes-St. Lawrence watershed by said defendants had

lowered the level of Lakes Michigan and Huron approxi-

mately six inches, the levels of Lake Erie and Ontario

approximately five inches and the levels of connecting

Rivers, Bays and Harbors to the same extent. (Report

of Special Master Hughes, filed November 23, 1927, pp.

104-5). The Master further found that the extent of the

lowering of said waters was in direct proportion to the

extent of the diversion and that an increase of 1500 c.f.s.

in the diversion would produce an additional lowering in

said waters of approximately one inch, (Report of Spe-

4”

se {pres oe ere

a SE SO ry: Reeser ggg srr

cial Master Hughes, filed November 23, 1927, p. 105). As

a result of this diversion, the Master found that the com-

plainant States and-their people had suffered substantial

damage to their navigation and commercial interests, to

structures, to the convenience of summer resorts, to fishing

and hunting grounds, to public parks and other interests

and to riparian property generally. (Report of Special

Master Hughes, filed November 23, 1927, pp. 105-118).

The Master’s finding in this respect was confirmed by this

Court (Wisconsin et al. v. Illinois et al., 278 U. S. 367

at 407-9). ,

Upon the consideration of the Master’s Original Report

and the exceptions filed thereto, this Court held in Wis-

consin, et al. v. Illinois et al., 278 U. S. 367, that the di-

version of water from the Great Lakes then maintained

by the State of Mlinois and the Sanitary District of Chi-

cago was unlawful and*in violation of the rights of the

complainant Lake States, that the Sanitary District was

under a legal duty to provide some other means of dis-

posing of the sewage to the end that the unlawful diver-

sion might be terminated, that in keeping with the prin-

ciples of a Court of Equity, the defendants (Illinois and

the Sanitary District of Chicago) would*be afforded a

reasonable time within which to provide other means of

disposing of the sewage and that thereafter there would

be a final, permanent, operative and effective injunction.

Thereupon this Court again referred these causes to

the Special Master for a determination of certain ques-

tions deemed to be essential to the formulation of an ap-

propriate decree which, while avoiding unnecessary hazard

to the health of the people of the Sanitar? District, should

nevertheless terminate the unlawful diversion and restore

the rights of the complainants as speedily as possible.

The Report of the Special Master on rereference was filed

December 17, 1929, and on March 14, 1930 this court

rendered its decision (Wisconsin, et al. v. Illinois, et al.,

281 U. S. 179).

On April 21, 1930, the decree of the Court was entered

(281 U. S. 696). This decree provided, in part, that, (1)

on and after July 1, 1930, the diversion of the waters of

the Great Lakes-St. Lawrence system through the Chicago

Drainage Canal should be reduced to an annual average of

6500 cubic feet per second, in addition to domestic pump-

age, (2) on and after December 21, 1935, this diversion

should be reduced to 5000 evbic feet per second, in addi-

tion to domestic pumpage, anc (3) on and after December

31, 1938, this diversion should be reduced to 1500 eubic

fegt per second, in addition to domestic pumpage.

In October 1932, the states of Wisconsin, Minnesota,

Ohio and Michigan applied for the appointment of a

Commissioner or other special officer to execute the decree

of April 21, 1930 (281 U. S. 696) on behalf of and at the

expense of the defendants. The above named Lake States

complained of the delay in the construction of the works

and facilities embraced in the program of the Senitary

District of Chicago for the disposition of sewage so as to

obviate danger to the health of the inhabitants of the

District on the reduction in diversion on December 31,

1935 and December 31, 1938, in accordance with the de-

cree, in the diversion of water from Lake Michigan through

the Drainage Canal. Cc

The court appointed Edward F. McClennen as Special

Master to make summary inquiry and to report thereon

to the court (278 U. S. 578). The Special Master pro-

ceeded accordingly and after full hearing submitted his

report and recommendations,» Upon that report the Court

on May 22, 1933, rendered its opinion (See 289 U. S. 395).

On the same day, the court enlarged the decree to provide

in part that the State of Illinois is required to take all

necessary steps to cause and secure the completion of

— — — — Sem

adequate sewage disposa! plants and sewers, to the end

that the reductions in diversion may be made at the times

fixed in the decree.

On January 11, 1940, the State of Illinois filed a peti-

tion with this Court for a temporary modification of

Paragraph 3 of the Court’s Decree of April 21, 1930, in

the above causes wherein the diversion of water from the

Great Lakes-St. Lawrence System or Watershed after De-

cember 31, 1938, was restricted to 1500 cubic second feet,

in addition to domestic pumpage. The petition prayed

that the diversion of water through the Sanitary Dis-

trict Canal as limited above be temporarily increased to

5000 cubic second feet in addition to domestic pumpage,

until December 31, 1942, so as to avert the alleged ob-

noxious, noisome, unhealthy and dangerous condition

claimed to exist in the Illinois Waterway.

On January 29, 1940, the Court issued a Rule to Show

Cause requiring the States of Wisconsin, Minnesota, Ohio,

Pennsylvania, Michigan and New York to show cause why

the petition of the State of Illinois for temporary modifi-

cation of the Decree of the Court entered April 21, 1930,

and enlarged May 22, 1933, should not be granted.

On February 26, 1940, the Return of Wisconsin, Minne-

gota, Ohio, Pennsylvania, Michigan and New York as Re-

spondents, to Rule to Show Cause issued on application

of the State of Illinois, as petitioner, for a temporary modi-

fication of Paragraph 3 of the Decree of April 21, 1930, was

filed with the Court.

On February 26, 1940, the respondent Great Lakes States

also filed their Brief in support of sat, Return. The State

of Illinois filed its Reply Brief and Argnment to the Brief

of Respondent Great Lakes Stutes on March 25, 1940.

Oral arguments were heard upon the Return*to the Rule

to Show Cause on March 25 and 26, 1940. Thapeafter,

fate

upon consideration of the return of the Lake States who

are complainants in the above entitled causes to the Rule

issued January 29, 1940, and of the argument had thereon,

the Court under date of April 3, 1940, rendered a per

curiam opinion (309 U. S. 969, 60 S. Ct. 789, 84 L. Ea.

953) and entered an order referring these causes to the

Honorable Monte M. Lemann as Special Master with di-

rections and authority to make summary inquiry on three

particular subjects therein described and to report to the

Court thereon with all convenient speed (309 U. S. 636,

60 S. Ct. 791, 84 L. Ed. 992). Pursuant to-this Order,

the Special Master held hearings at Chicago and Joliet,

Illinois, teginning on July 11, 1940. Uther hearings were

held in September and October 1940, and in January 1941.

Oral arguments were heard in New Orleans, Louisiana, in

February 1941 (Report of Special Master Leman, p. 5).

Il. THE ORDER OF THIS COURT, DATED APRIL 3, 1940,

REFERRED THE CAUSES HEREIN TO A SPECIAL MAS.

TER FOR SUMMARY INQUIRY AS TO CERTAIN ISSUES

OF FACT.

The order of the Court dated April 3, 1940 (309 U. S.

636, 60 8. Ct. 791, 84 L. Ed. 292), provides in part that:

‘‘the petition of the State of Illinois and the return

of the complainant States to the order to show cause

be referred to Monte M. Lemann, Esquire, as a Special

Master, with directions and authority to make sum-

mary inquiry and to report to this Court with all

convenient speed with respect to the actual condition

of the Illinois Waterway by reason of the introduc-

tion of the untreated sewage, and whether, and to

what extent, if any, that condition constitutes an

actual menace to the health of the inhabitants of the

complaining communities, and also with respect to

the feasibility of remedial or ameliorating measures

available to the State of Illinois without an increase

in the diversion of water from Lake Michigan.’’ (84

L. Ed. 993.)

SC ees —— —

III. NO ISSUES OF LAW ARE INVOLVED AND THE ISSUES

OF RACT ARE MEASURED PRECISELY AND SOLELY

BY THE ORDER OF REFERENCE DATED APRIL 3, 1940.

The scope of the instant reference and the issues of fact

to be determined herein are measured precisely and solely

by the terms of the Order of Reference made by the United

j States Supreme Court on April 3, 1940. The nature and

} extent of the inquiry is defined by the Order of the court.

-_— —s ~~ er wee

The ultimate questions of fact therefore to be determined

on this reference are:

(1) What is the actual condition of ‘the Illinois Water-

way as the result of receiving untreated sewage?

(2) What is the effect of such actual condition of the

Illinois Waterway on the health of the inhabitants |

of the complaining communties? @

(3) What remedial or amelicrating measures are avail-

able to the State of Illinois without an increase in

the diversion of water from Lake Michigan?

oo eg ill -_— —

PART TWO

A. THE FINDINGS AND RECOMMENDATIONS or

THE SPECIAL MASTER AND THE ISsuRs

RAISED ON THE EXCEPTIONS TO THE MAS.

TER'S REPORT.

1. THE SPECIAL MASTER DULY ENTERED HIS FINDINGS

AND CONCLUSIONS AND HIS RECOMMENDATIONS ON

THE THREE IJSUEs, OF FACT.

After extended hearings the Special Master made and

filed his report dated March 31, 1941 with this Conrt.

In answer to the first issne of fact the Special Master

found:

‘*(1) The actual condition of the Illinois Waterway,

by reason of the introduction of untreated sewage,

creates in the summer months a nuisance through of

fense odors at Joliet and Lockport, but does not pre-

sent a menace to health. No nuisance conditions were

proven to exist along the Waterway at any other

points.’’ (Report of Special Master Lemann, p. 110.)

After due consideration the Special Master made the

following finding on the second issue of fact:

‘*My conclusion is that the facts proven do not

establish any menace to the health of the inhabitants

of Joliet and Loekport or elsewhere along the. Water

Way requiring an in¢rease in diversion in water from

Lake Michigan.’’ (Report of Special Master Lemann,

pp. 04, 110.)

In answering third issue raised hereia, the Special Mas-

ter found as follows:

‘“(2) With respect to remedial or ameliorating

measures available to the State of [linvis without an

inerease in the diversion of water fiom Lake Michi-

gan, my findings are as follows:

‘(n) The dredging of Drandon Road Pool would

remove chiefly old acetimulations of sludge which have

completely or largely lost their potensy as causes of

niisanee and would therefore be of extremely doubt

ful efieaey, Tt would coat between #400,000) and

£750,000, plus the eost of providing spoil banks and

lngoons, Tt would presént problems tis to possible

niisanee from sueh spoil banks and lagoons and re

quire further expense for chlorination, 1 do not think

this ia a feasible ameliorating measure,

“(b) ‘The draining of Brandon Road Pool cannot

he accomplished without some interference ‘vith navi-

gation, to which the War Department, which has sole

jurisdiction over navigation problems, will not con-

went, Mor this reason T do not think this suggestion

feasible, There would also be presented problems

with respect to the water intake pipes of several in-

dustios which take water for industrial purposes from

the Pool,

*(e) Chlorine is an effective measure to reduce

and elominate odors, but owing to the size of the

Brandon Road Pool and the large sludge deposits

therein and the continuing discharge into the Water

way of incompletely treated sewage, it is impossible

to make a reasonably certain estimate of the amount

of chlorine which would have to be applied to produce

a substantial result,

‘*In order to have a reasonable prospect of substan-

tially controlling offensive odors, it would be neces-

sary to spend from $3,000 to $4,000 a day for chlorine,

plus several hundred thousand dollars for chlorinating

equipment,

“(d) Cascading the water at Lockport or sending

it over the dam there would be remedial to the extent

of producing some oxygen at Lockport. How much

oxygen would be produced and how much of it would

reach Joliet and the Brandon Road Pool is uncertain

and could only be determined by actual trial. The

use of the water in this way would cost the Sanitary

District $1500 a day in the loss of power and it would

be necessary to use an undetermined amount of chlo.

rine to prevent an odor at the point of cascading.

‘“*(e) The supply of additional oxygen through pro-

duction of nitrates by increase of air on the North

Side and Calumet plants is not a feasible ameliorating

suggestion for the summer of 1941. The evidence be-

fore me is not sufficient to prove that it is feasible

for 1942, in view of the testimony of the Sanitary

District experts that it would require an increase in

aeration tank capacity. The proof before me is in-

sufficient to support a conclusion that this suggestion,

if it could be put into effect for the summer of 1942,

would be substantially ameliorating.

‘‘(f) Chemical treatment at the West Side plant

would involve a very large permanent expenditure,

which could not be made effective in 1941 and if it

could be installed by 1942 would be almost immediately

superseded by the activated sludge treatment which

is provided for by the District’s permanent program.

This does not seem to me a feasible ameliorating meas-

ure.

‘*(g) The estimates as to cost of chlorinating West

Side Imhoff tank effluents are too uncertain and the

opinions of the experts too conflicting as to the ex-

tent of amelioration which it would afford, to enable +

me to make any finding that such chlorination is a

feasible ameliorating measure,

“(h) It is feasible for the Sanitary District to

budget the 1500 c. f. s. of water now permitted to be i

diverted ‘in addition to domestic pumpage so as to |

divert only 1150 ¢. f. s. in the months of January, [

February, March, November and December, and to ,

allocate the aggregate saving in diversion in those

,months to the summer months. This ameliorating

measure will not, however, materially reduce the ’

B.O.D. at Lockport, and will not, therefore, substan-

tially relieve the odor nuisance.

“*(i) The adoption of ccmpulsory water metering

by Chicago is an ameliorating measure, but the evi-

dence before me is not sufficient to enable me to make

any finding as to the extent of amelioration which it.

7 — a ee ee tee

SIT eee

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* lL

° 1l

would afford or the time within which it gould be

made available.

‘*(j) The provision of activated sludge treatment

at the Southwest plant for the West Side Imhoff

tank effluent is a very important and feasible ameliorat-

ing measure to which the Sanitary District, is com-

mitted, and toward which it has made some progress.

The extent of the progress will depend upon the in-

dustry and enterprise of the Sanitary District. There

is no prospect that this ameliorating measure will be

operative in the summer of 1941. It is possible, but

doubtful, that by special diligence it might be made

operative in the summer of 1942 instead of only by

the end of 1942, as claimed by the Distriet:

‘*(k) As additional equipment is installed, it will

become possible to give complete treatment during |

the course of 1941 and 1942 to increase quantities of

sewage at the Southwest plant. The progress which

will be made during these years and the gradually

declining influence of sludge deposits from past years

will be operative in the summer of 1941 to improve

conditions at Lockport and Joliet as compared with

1939 and 1940, and will be operative to a further ex-

tent in 1942. The extent of relief from offensive

odors which will be afforded at Lockport and Joliet

in the summer months of 1941 is very doubtful, but

there is a better outlook for the summer months of

1942. Weather conditions will have an important in-

fluence.’? (Report of Special Master Lemann, pp.

110-113.)

Il. EXCEPTIONS TO THE REPORT OF THE SPECIAL

MASTER. =

The exceptions filed by the State of Illinois to the Re-

port of,the Special Master are very voluminous and many

of such exceptions are duplications, some of said excep-

tions relating to findings of the Special Master on a par-

ticular point or to the failure of the Special Master to

make the requested finding of Illinois on that point. Other

exceptions are not material or relevant to the issues in-

volved on this reference and were apparently taken to

clarify the record on particular points. Moreover it is

apparent that many of the exceptions by Illinois will not

be argued or discussed in its brief. An examination of

all the exceptions taken and filed with this Court discloses

that the proper treatment of these exceptions is to group

. them under the three issues of fact referred to the Special

Mastez for summary inquiry. )

(a) Exceptions to the Report of the Special Master filed

‘by the Stute of Illinois.

The exceptions of the State of Illinois to the report of

the Special Master, Hon. Monte M. Lemann, may be sum-

marized and divided into the following classifications:

(1) The first group of exceptions by Illinois relate to

the Special Master’s conclusion as to the health conditions

and to his recommendations thereon, or to the failure or

refusal of the Special Master to grant certain findings of

fact submitted by Illinois relating to health conditions.

(See Illinois Exceptions I and II.)

(2) The second class of exceptions by Illinois relate

to the Special Master’s conclusions conéerning present

and past conditions at Leckport and Joliet, Illinois, or to

the failure or refusal of the Special Master to grant cer-

tain findings submitted by Illinois relative to the actual

condition of the Illinois Waterway. (Nee Illinois Excep-

tions II and IV inclusive.)

(3) The third type of exceptions relate to miscellaneous

matters, including alleged mistakes in the record, failure

to make requested findings relative to remedial measures,

and the like. (See Illinois Exceptions VII.)

(4) The fourth class of exceptions by Illinois relate

to the failure or refusal of the Special Master to recom-

nye Ek:

13 }

mend an increase in diversion. (See Illinois Exceptions

V and V1.)

(5) The fifth type of exceptions by Iinois relate to

the failure of the Special Master to make or grant the

recommendations for decree requested by Illinois and to

the conclusion of the Special Master recommending that

the petition and modified petition of Illinois be dismissed

with costs against the State of Illinois. (See Illinois

Exceptions VIII and IX.) .

(b) Exceptions of the States of Wisconsin, Minnesota,

Ohio, Pennsylvania, Michigan and New York to the Report

of the Special Master.

The exceptions as filed by the opposing Great Lakes

States to the report of the Special Master relate\principally

to his failure to find that each and every remedial or

ameliorating measure suggested by the said opposing

Great Lakes States would be feasible. It should be pointed

out, ' owever, that the questions raised in connection with

the opposing Great Lakes States’ exceptions arise only

in the event that it should be held by this Court that an

actual menace to the health of the inhabitants of the com-

plaining communities exists. We feel confident that this

Court will sustain the finding of the Special Master that

no menace to healtl. exists and that the recommendation

of the Special Master that the petition and modified peti-

tion of Illinois be dismissed will,be sustained. Therefore,

it will be unnecessary for the Court to consider the argu-

ments onthe remedial or ameliorating measures.

As we pointed out in the foreword to the exceptions of

the opposing Great Lakes States, said exceptions were

taken solely for the purpose of placing on the record the

position of the opposing Great Lakes States with respect

to the feasibility of ameliorating measures in order to

preserve their right to such finding ir, at any time, an

issue is presented in the future in which those matters

become important.. aaa !

The exceptions filed by the opposing Great Lakes States

to the report of the Special Master relate (1) to his fail.

ure to make findings that each and every one of the sug-

gested ameliorating or remedial measures would be feasible

and available to the State of Illinois without increase in

diversion from Lake Michigan, and (2) to the failure of

the Special Master to make a finding that the actual con-

dition of the Illinois Waterway at Joliet and Lockport

wil result in no nuisance conditions with respect to odors

during the summer months of 1941, and (3) to the failure

of the Special Master to find that the flow through the

Chicago Drainage Canal is manipulated for power pur-

poses.

The argument of the opposing Great Lakes States in

support of their exceptions to the Report of the Special

Master appears in the appendix to this brief,

ST erent a

PART THREE

A. DATA CONCERNING THE COMPLAINING COM-

MUNITIES.

I. JOLIET AND LOCKPORT, ILLINOIS, THEIR LOCATION,

SOURCE OF WATER SUPPLY, SEWAGE DISPOSAL,

SIZE, POPULATION, INDUSTRIES, AND LIKE DATA.

(a) Joliet, Illinois.*

Joliet, Illinois, a city covering approximately five square

miles of land (Illinois Exhibits 2, 38 R. 6, 289), is located

about 40 miles, by railroad, southwest of Chicago, Illinois,

on the Illigois Waterway (Illinois Exhibits 1, 2, 3, 4, R. 6-

7). The population of Joliet in 1930 was 42,993, while the

1940 census showed a slight decrease in population, with a

total of 41,936 people in Joliet (Pearse, Cross-Examination,

Exhibit 5B). The health commissioner of the City of Joliet,

J.r. Louis J. Frederick, estimated the total number of peo-

ple living in Joliet and the surrounding territory who were

likely to be affected by health conditions in and near Joliet,

at 50,000 (Frederick, R. 459). -

Joliet has within its borders many diversified industries,

including seven big wallpaper mills, three plants of the

American Steel and Wire Company, the Ruberoid Com-

pany, General Refractories and chemical plants (Jones,

R. 229). \

Joliet is-a busy railroad center and many leading rail-

roads.pass through Joliet, including the Chicago, Milwau-

*The Joint Abstract of record herein consists of two

parts; the first volume the Joint Abstract of record con-

tains the testimony of the witnesses and will be herein-

after referred to as follows: JA-I, while the second volume

of the Joint Abstract of record consists of the exhibits and

will be hereinafter referred to as JA-II. «

kee, St. Paul and Pacific, the Atchison, Topeka and Santa

Fe, the Michigan Central, the Elgin, Joliet and Eastern,

the Chicago and Alton, and the Chicago, Rock Island and

Pacific Rail.oad (Illinois Exhibit 38, R. 289).

The domestic water supply of Joliet .is not obtained

from the Illinois Waterway but such water is take from

deep wells located in various parts of the city, one on Jas-

per Street, East Washington Street, Ruby Street, William.

son Street and Ottawa Street (Testim., R. 1368-1369;

Jones, R. 295, JA-I, 570). Joliet has no sewage treatment

plant and the raw sewage of Joliet is dumped into the

Illinois Waterway below the city of Joliet (Testim., R.

1269, JA-I, 695; Jones, 294-295, JA-I, 570). The raw,

“untreated sewage of the Chicago area, since the reversal

of the Chicago River in 1900, has always flowed through

the city of Joliet (Jones, R. 296, JA-I, 570).

Two state prisons are located near the Illinois Water-

way at Joliet, Illinois. The population of such prisons

is as follows: The total population at the old Peniten-

tiary is 2,029, while the total population at Stateville

is 4,396, which includes, in both institutions, both in-

mates and employees. The total population at both the

old prison and Stateville is 6,425. (Pearse, Cross-Ex-

amination, Exhibit 6; R. 3318). The raw, untreated sew-

age of these state prisons is dumped into the Illinois

Waterway at the Brandon Road Pool (Pearse, R. 2555-

2558, JA-I, 162-163). i

(b) Lockport, Illinois.

Lockport, Illinois, is a small community covering about

1 square mile of territory, located about 3 miles northeast

of Joliet, Illinois, and 37 miles southwest of Chicago on the

Chicago Drainage Canal section of the Illinois Waterway

(Illinois Exhibits 1, 2, 3 and 4, R. 6-7). The population

of Lockport, Illinois, in 1930 was 3,383, while in 1940,

“eo Ee

the population was 3,433. (Pearse, Cross-Examination,

Exhibit 5-B, R. 3315). Lockport and other nearby com-

munities, namely, Justice, Lemong, Romeo, Argo-Sum-

mit, Sag and Willow Springs, have no sewage treatment

plants (Cheadle, R. 435-6; JA-I, 586; Pearse, R. 1656,

JA-I, 124-5, 2556, JA-I, 162-163). The raw untreated sew-

age of these communities finds its way into the canal sec-

tion of the Illinois Waterway (Pearse, R. 1656, 2556, J A-I,

162-3; Cheadle, R. 435-437, JA-I, 586). Lockport, and other

nearby communities, namely, Justice, Lemong, Romeo,

Sag and Willow Springs and Argo-Summit do not ob-

tain their domestic“water supply from the Illinois Water-

way and all of such communities take their domestic water

from deep wells, except Argo which obtains its water

supply from the City of Chicago. (Cheadle, R. 437, JA-I,

586).

PART FOUR.

A. THE FACTS.

I. WITH RESPECT TO THE ACTUAL CONDITIONS OF THE

ILLINOIS WATERWAY BY REASON OF THE INTRO.

DUCTION OF UNTREATED SEWAGE.

(a) The record conclusively establishes that ‘‘the actual

condition of the Illinois Waterway as the result of receiv.

ing untreated sewage’’ while never wholly satisfactory, has

not in the past resulted in or caused any nuisance condi-

' tion affecting public health and that the actual condition

tocay is not such as to cause or result in any nuisance

condition affecting health, and no increase in diversion of

water from Lake Michigan, though temporary in nature,

is necessary to protect the interests of public health.

J. The conditions which have obtained in the Illinois

Waterway since the opening of the Chicago Drainage

Canal on January 17, 1900, have never been wholly satis-

factory by reason of the fact that the Illinois Waterway

has been the main receptacle of the sewage of the Chi-

cago Metropolitan area and since an early date has

received huge quantities of raw untreated or partially

treated domestic sewage and industrial wastes, result-

ing in the pollution of said Waterway; nevertheless,

although the actual condition of the Illinois Waterway

has never been ideal it has not, at any time, caused or

resulted in any nuisance condition affecting health.

As the Special Master rightly says:

‘In considering the weight to be given to the claims

of Illinois that the situation in Joliet and Lockport

presents a menace to health which makes imperative

an increase in the diversion, it seems pertinent to con-

sider the situation which has prevailed in past years”

(Report of Special Master Leinann, pp. 47-48).

“ae

_— eae ie

It is agreed by almost everyone that even before 1939,

conditions in the Illinois Waterway were never wholly sat-

isfactory due to the discharge therein of the untreated

sewage of Chicago (Report of Special Master Lemann,

pp. 48-49). In the earlier years the Chicago River and the

old Illinois and Michigan Canal and, since the opening of

the Chicago Drainage Canal on January 17, 1900, the Main

Channel and the DesPlaines and Illinois Rivers have been

the main receptacles of the sewage of the entire Chicago

Metropolitan area (Report of Special Master Hughes

(1927), pp. 6-7; Report of Special Master Lemann, pp.

48-49),

Witnesses who were familiar with the Illinois Waterway

in the past testified that the condition of said Waterway

’ for a great many years was never wholly satisfactory be-

cause of the large quantities of raw, untreated or partially

treated, sewage which were deposited therein to be car-

ried away downstream (Cheadle, R. 424, 434-435, JA-I,

585-586; Mohlman, R. 281, JA-I, 204; Pearse, R. 211-212,

JA-I, 104; Andrew, R. 3798-3801, JA-I, 261-262; Sontag,

R. 397-398, JA-I, 581; Callahan, R. 861-862, JAgI, 633;

Kerr, R. 2351-2383, JA-I, 711-717; Moure, R. 2332-2342,

JA-I, 707-709; Detweiller, B. 2344-2348, JA-I, 709-711;

Goodell, R. 2385-2410, JA-I, 718-724).

Dr. Mohlman, a witness called by the State of Illinois,

who is in charge of all of the laboratories for the Sanitary

District of Chicago, testified that conditions even before

January, 1939, were never wholly satisfactory if one meas-

ured the condition of the Waterway by the amount of dis-

solved oxygen available and the biochemical oxygen demand

of the water (R. 281, JA-I, 204).

Mr. Pearse, Chief Sanitary Engineer for the Sanitary

District of Chicago, testified that there has always been a

heavy deposit of sludge above the old power house at Lock-

port and that up to the year 1929 they measured 6 io 8 feet

20 Fs

of sludge deposits above the power house /racks (R. 211,

JA-I, 104). He testified further that they have always

had some sludge deposits in the Brandon Road Pool and

that such deposits started to form as soon as the gates were

closed in the Brandon Road Dam when the Waterway was

opened in the year 1933, and that sludge deposits were f

noticed during the first year when the dam was closed ’

(R. 211-212, JA-I, 104).

The Special Master in his report refers to testimony by

* Pearse in previous hearings (1926-1927) in which Pearse

affirmed that the Canal and River constituted a nuisance

for a number of years and that odors from the Waterway ,

could be smelled for a distance of half a mile. (Report of

Special Master Lemann, p. 49.) }

Bruce Cheadle, a witness for the State of Illinois, who

is Secretary of the Chamber of Commerce in Lockport and

also Secretary of the DesPlaines Valley Improvement Asso-

ciation and who has observed the deep Waterway for a

great many years testified that the Chicago Drainage Canal .

has been a source of complaint in the DesPlaines Valley ’

prior to the year 1939 and that they have always objected

to its being a cess pool for the City of Chicago or any other ;

territory (R. 424, JA-I, 585-586). Mr. Cheadle further tes-

tified that there has always been some odor emanating

from the Canal and that there have been complaints for

a great many years back about the condition of the Canal

. (R. 434-435, JA-I, 586).

The State of Illinois, Exhibit 37A (R. 4480, JA-II, p.

35) shows that since the year 1925, through the year

1938, during every summer, the dissolved oxygen has gone

down to zero for a few months. Dr. Mohlman confirmed

this fact in his direct testimony (R. 272, JA-I, 200). >

Other witnesses familia, with the condition of the TIli-

nois Waterway over a period of years, likewise testified }

’

that prior to the year 1939 the sanitary conditions of such

Waterway have not been wholly satisfactory (Sontag, R.

397-398, JA-I, 581; Andrew, R. 3798, JA-I, 261; Hollis, R.

1329, JA-I, 689).

Edward P. Callahan, United States Lock Master at Leck-

port (R. 859-860, JA-I, 633) testified that he had been lock

master there since the 1st of May, 1932, and that he came to

Lockport to paint the towers in the year 1930 for the United

States Government. He said:

‘‘At that time the water out there was thick, you

could almost paint with it. * * * You could almost paint

with that water then. It was thick. And it was filthy,

plenty. Then there was an awful stench. We almost

had to get clothes pins and put on our nose, * * * That

is when we first came here. * * * They (conditions)

are nowhere near as bad today as they were then. They

have been clearing that water up, cleared up at least,

I would guess, 60 per cent. * * *’’ (R. 861-862, JA-I,

633). ai

Mr. Callahan testified further that conditions today

(1940) were better than conditions a year ago and that

smelling the water had not affected his health (R. 862,

JA-I, 633).

Mr. Andrew of the United States District Engineer’s

Office in testifying with respect to conditions along the

Illinois Waterway during the years 1924 and 1925 stated

that in 1924 and 1925 ‘‘the odors in the City of Joliet at

that time were very offensive.’’ Andrew further stated

that conditions in Joliet in 1925 were as bad as in 1939

(R. 3799-3800, JA-I, 261).

Even with the large quantities of water which have been

abstracted from the Great Lakes-St. Lawrence Watershed

during the period prior to the year 1939, due to the huge

quantities of raw sewage or partially treated sewage which

were deposited in such Waterway, conditions along the

Illinois Waterway were never satisfactory, especially dur.

ing the years from 1925 to about 1930 when the water

was very unsightly and thick and the odors extremely of-

fensive and conditions were very bad (Andrew, R. 3798.

3801, JA-I, 261; Callahan, R. 861-2, JA-I, 633).

2. The conditions which obtained in the Illinois Waterway

during the year 1939 were not satisfactory by reason

of the default of the Sanitary District of Chicago in

failing to provide the necessary facilities for complete

treatment of all of the sewage of the District by Decem-

ber 31, 1938, the date of the final reduction in illegal

diversion to 1500 c.f.s. became effective.

The conditions which obtained in the lli'vois Water-

way at Lockport and Joliet during the year 1939 were worse

than they had been during the year 1938. Those conditions,

however, arose and were created solely by the default of

the State of Illinois and the Sanitary District of Chicago

in the performance of their duty under the Decree of April

21, 1930 (281 U. S. 696) as enlarged by the Decree of May

22, 1933 (289 U. S. 710). By the terms of the Decree of

April 21, 1930, as enlarged, it was the duty of the State of

Illinois and the Sanitary District of Chicago to provide by

December 31, 1938, complete treatment of all of the sew-

age of the Sanitary District of Chicago through suitable

and adequate works which would provide 85% or 90%, or

more, purification of all the raw sewage of said District.

In fact on December 31, 1938, the Sanitary District of

Chicago had only provided treatment of varying degrees

for part of the sewage of the Sanitary District and such

partial and incomplete treatment provided only 27.7%

purification of the sewage of the said District (Final Report

of Sanitary District, filed Jan. 1, 1939, pp. 11, 13).

The testimony of the 127 witnesses at the Joliet hear-

‘ings the week of J uly 22, 1940, was mainly to the effect that

aw aa

—

during the warm months of 1939 conditions along the Illi-

nois Waterway were unsatisfactory due to offensive odors

which from time to time annoyed the residents and inhabi-

tants of Joliet and Lockport. Many witnesses testified that

conditions on the illinois Waterway in 1939 were worse

than they had been prior to that time. (Sampson, R. 308,

JA-I, 571; Jones, R. 291, JA-I, 569; Sontag, R. 395, JA-I,

581; Castello, R. 678, JA-I, 614; Britz, R. 689, JA-I, 616;

Kerwin, R. 694, JA-I, 616).

There were many complaints about the odors which

emanated from the Canal and Waterway during the warm

months of 1939. Several witnesses stated that the physical

appearance of the Waterway in 1939 was much worse than

it was in previous years or in 1940. (Cheadle, R. 425, 433-

539, JA-I, 585-586; Jones, 291-292, JA-I, 569; Sampson,

R. 308-309, JA-I, 578).

On the other hand, one witness was of the opinion that

the Illinois Waterway was better in 1939 than in 1938 (San-

tini, R. 685, JA-I, 615); and another witness, the U.S.

Lock Master at Lockport was positive the condition of the

Waterway in 1939 was much better than in the years 1930

or 1932 (Callahan, R. 681-682, JA-I, 633).

Mr. Callahan, United States Lock Master at Lockport,

testified that in 1930 and 1932 the water was so thick you

could almost paint with it and it was filthy with an awful

stench so that they almost had to get clothes pins to put on

their noses (R. 681-682, JA-I, 633). Callahan estimated

that the river had cleared up at least 60 per cent since

1930 or 1932 (R. 862, JA-I, 633).

It will be seen from an examination of the record that

there is no agreement among the witnesses as to the actual

condition of the Waterway in the year 1939, except the

general agreement that conditions were not ideal end an-

noying to some persons who resided near the Waterway.

Turning now to an examination of the exhibits pre-

pared by witnesses Howson, Pearse and Mohlman to show

the comparative pollution loads in the Chicago Drainage

Canal during the years 1938 to 1942, we find that while the

pollution load was less in 1939 than in 1938, owing to the

failure of the Sanitary District to provide complete treat-

ment for all the sewage of the District, coupled with the re-

duction in diversion on December 31, 1938, from 5000 c.f.s.

to 1500 ¢.f.s. resulted in unsatisfactory sanitary condition

in the Illinois Waterway (Opponents’ Exhibit 14, R. 3030,

JA-II, 107, Illinois Exhibit 61, R. 3529, Mohlman Ex.

hibit 13-a, R. 3304). Other exhibits recording the de-

gree ard amount of treatment of the sewage of

the Sanitary District of Chicago, the amount of sludge

removed from the sewage, the buge amount of sludge re-

moved from sewage deposited in the Main Channel of the

Canal, the B.O.D. in the Canal, the D. O. in the Canal

water, likewise show that during the summer of 1939, con-

ditions in the Illinois Waterway at Lockport and Joliet

were less satisfactory than in the year 1938 (Report of

Srecial Master Lemann, tables 2, 3, 4, 5, 6, 7, 8, 9, pp. 117-

122; see also: Illinois’ Exhibits: No. 24A, BR, 3636; 254;

K. 3638; 26A, R. 3640; 27A, R. 3642, JA-II, 28; 28A, R.

3644, JA-II, 29; 29A, R. 3646, JA-II, 30; 47A, R. 3654,

JA-II, 47; 50A, R. 3658; 1A, R. 3660; 52A, R. 3662; 54A,

R. 3664; 60, R. 3528; 37, R. 271). The B.O.D. in the Canal

water at Lockport during the summer months of 1939 was

30.2 p.p.m. as compared to 17.3 p.p.m. of B.O.D. during the

summer months of 1938 (Illinois’ Exhibit 61, R. 3529).

The D. O. in the Canal at Lockport was zero for many

months in 1939 as compared to zero dissolved oxygen in

the Main Channel at Lockport for s-veral summer months

in 1938 (Illinois’ Exhibit 37, JA-II, 35). Thus, conditions

in the Illinois Waterway at Lockport and Joliet were worse

in the summer of 1939 than in 1938 as measured by the

B.O.D., the D. O. in the canal water, the amount and de-

—— ee

—

25 >

gree of sewage treatment and the water available from

Lake Michigan. However, though such condition of the

Waterway in 1939 may have been annoying to some per-

sons, yet no menace to health ever existed on or along the

Illinois Waterway.

3. The condition of the Illinois Waterway in 1940 was

considerably improved over the condition which existed

in 1939. :

By the spring of 1940 the Sanitary District of Chicago

had in full operation the Southwest Treatment Plant and

thereby kept out of the Drainage Canal a large pollution

load which formerly went into the Canal. The increase in

the degree of treatment of all of the sewage of the Sanitary ..

District is graphically shown in table 2 of Special Master

Lemann’s report at page 117. (See also: Illinois’ Ex-

hibits 24A, R. 3636; 25A, R. 3638; 26A, R. 3640; 27A, R.

3642, JA-II, 28, 28A, R. 3644, JA-If, 29; 29A, R. 3646,

JA-II, 30; 47A, R. 3654, JA-IT, 47; 51A, R. 3660; 52A, R.

3662). It is clear from an examination of the reports of

operations of the several treatment plants of the Sanitary

District that by the summer of 1940 a very decided improve-

ment in the Waterway was made as compared to the sani-

tary condition of the Illinois Waterway at Lockport and

Joliet during the summer of 1939.

Thus, in 1939, the dry solids removed from the sewage

by the Sanitary District of Chicago averaged 305.6 tons

per day while in 1940 this was increased to 422.7 tons per

day (Table 3, Report of Special Master Lemann, p. 117).

The amount of sludge returned to the channels of the Sani-

tary District in 1939 was 53,970 tons, dry weight, while in

1940 the sludge returned to the Canal was reduced to 20,224

tons, dry weight (Table 5, Report of Special Master Le-

mann, p. 119, see also Illinois’ Exhibits 50A, 51A, 52A, R.

3658, 3660, 3662). During the year 1939, a grand total of

670 m.g.d., yearly average, of sewage was treated in all of

the treatment works of the Chicago Sanitary District, while

in 1940 the amount of sewage treated was increased to

930 m.g.d. yearly average (Table 2, Report of Special

Master Lemann, p. 117, Illinois’ Exhibit 25A, R. 3638).

The improvement in conditions along the Illinois Wat-

erway in the year 1940 at or near Lockport and Joliet was

apparent to all who visited the Illinois Waterway at those

points. ; |

On July 8, 1940, the Master, counsel and others took a |

trip to Joliet by auto and examined the Brandon Road Pool

from the Brandon Road Lock and Dam to the Lockport

Lock and Dam by boat. Conditions along the pool and on

the Waterway on that day while not ideal were not bad.

There were few odors apparent and not a great deal of

scum or debris apparent on the surface of the water. Cer-

tainly the Waterway on July 8, 1940, was vastly improved

over the condition testified to by witnesses as having ex-

isted in the summer of 1939. This improvement was quite

marked and conditions were satisfactory despite the fact that

one employee, a lock man, who locks boats at the Brandon

Road Lock, testified that on J uly 8, 1940, the odors ‘‘were

extra strong because the weather warmed up.’’ (Christman,

R. 629). Despite the high temperatures (Opponents’ Ex-

hibit 18A, R. 3978), the Master and counsel had no cause

for complaints concerning odors from the Waterway.

The witnesses who were called to testify at Joliet were

for the most part of the opinion that conditions on the TIli-

nois Waterway had improved considerably during the year

1940 as compared to conditions on such Waterway in the

year 1939. (Jones, R. 289-306, J A-I, 569-570; Sampson, R.

307-314, JA-I, 571; Ray Powers, R. 314-318, JA-I, 572; Mrs.

Marie Bush, R. 331-360, JA-I, 575, 576; Mary S. Wurtz,

R. 377-389, JA-I, 578-579; Sontag, R. 389-400, JA-I, 580-

581; Cheadle, R. 420, JA-I, 585; Dr. Lennon, R. 526-543,

a a ee f.

_———— = -

een et

TPR sg iE SCENT gO

SLY ee

JA-I, 598-599; Dr. Curtiss, R. 547-595, JA- I, 601-604; Thos.

Calamaras, R. 609, JA-I, 606; Mrs. Vina Poole, R. 633-

639, JA-I, 610; Velt, R. 1311, JA-I, 686; Himes, R. 1312,

—JA-I, 686).

On the other hand, there were some witnesses who

were of the opinion that conditions were about the same in

1940 as in the year 1939 (Sister Ursuline, R. 1107, JA-I,

657; Sister Hilda, R. 1117, JA-I, 658; Chrzanowski, R.

1254, JA-I, 679; Pellino, R. 733-735, JA-I, 621), while sev-

eral witnesses were of the opinion that conditions were

somewhat worse at Joliet in 1940 than during the summer

of 1939 (Boles, R. 1321, 14%, 688; Faulkner, - Mise JA-I,

640).

However, with but few exceptions the consensus of

opinion among the Joliet witnesses was that the Illinois

Waterway had improved materially during the year 1940.

(Report of Special Master Lemann, p. 20,) This can be

attributed, directly, of course, to the fact that the South-

west Side Treatment Plant was placed in partial operation

in May, 1939, and in almost complete operation in the

Fall of 1939 (Pearse, R. 169, 176-177, JA-I, 90-92). Since .

the completion of the Racine Avenue pnmping station on

March 20, 1940 (Ramey, R. 20, JA-I, 6), additional sewage

is brought to the Southwest Plant for/treatment. In the

fall of 1940 the Kostner Avenue sewer was placed into

operation (Pearse, R. 2739, JA-I, 177),'‘and more sewage of

the southwest area now receives treatment. The additional

sewage from the Southwest Area which in 1940 received

complete or partial treatment took a tremendous pollu-

tion load off of the Canal and assisted-,in creating im- . +

proved conditions. The sanitary experts on both sides are

in general agreed that there was a gradual and progressive

improvement in the Waterway in 1940 over conditions in

1939 due to the operations of the Chicago Sanitary District

Sewage Disposal Plants in treating more sewage of the

District from time to time and in keeping sludge from the

Canal (Opponents’ Exhibit 14, R. 3030, JA-II, 107 ;“Hli-

nois’ Exhibit 61, R. 3529; Mohtman, R. 267; Mohlman Bx-

hibit 138A, R. 3304; Illinois’ Exhibit 244, 25A, 26A, 27A,

28A, 29A, 37, 47A, 50A, 51A, 52A, 54A, 60A, R. 3636, 3638,

3640, 3642, JA-II, 28, 3644, JA-II, 29, 3646, JA-IT, 30, 271,

3654, 3656, 3658, 3660, 3662, 3664, 3528).

On Wednesday, July 24, 1940, the Master accompanied

by counsel at 7:30 P. M. embarked at Jackson Street bridge,

Joliet, for an inspection trip of the Brandon Road Pool

(R. 1088-1098, JA-I, 699-706), During the trip the Mas-

ter made the following observations:

he Special Master’s notes show that in this inspection

trip he could detect an odor from time to time but only

intermittently; it would last for a few seconds or a minute

and then he would lose it for several minutes and then

catch it again. While an odor was perceptible at times,

it did not seem to the Master terrible or particularly bad

at any time. He noted that it would not bother him very

much, although it might bother others. Although he would

not call it pleasant, it was not strong. It did not seem to

be any worse at the wider section of the Pool than at other

points. He did not cbserve any flies and had only one

mosquito bite, although it was dusk. At times there was

a good breeze which, at other times, died out. He saw

a number of bubbles on the water, which he was told rep-

resented the operation of gas from sludge underneath the

surface. At first he saw little scum. Then as the party

proceeded on its way the Master saw along the walls a

rather thick surface layer, which appeared to be scum and

which contained pieces of wood, paper, miscellaneous debris

and a good many grease spots, which might have been due

to oil. This scum varied in extent. At one point the

scum was 2 or 3 feet in width; at others perhaps 10 to 20

feet; it was usually on the side along the walls, but he

—_

‘ 29

observed it also at points in the middle of the Waterway.

Bubbles were apparent for the whole width of the Water-

way. At one point he detected an oily odor.

The Master slept four nights at Joliet and was not

troubled by odors. The only trouble he had in sleeping

was due to the heat, which was so great that he kept an

electric fan constantly going all night. The City Hail, in

which the hearings were held, was on the east side of the

Canal about three blocks away. He detected an odor on

only one day and then only for a few minuics. The four

days he spent in Joliet were the hottest of the summer,

the temperature reaching 103 degrees on July 25th.

Illinois’ Exhik:t 61 (R. 3529) prepared by Pearse shows

that the B.O.D. at Lockport in 1940 was 20.6 p.p.m. com-

pared to 17.3 p.p.m. of B.O.D. at the same place in 1938

and 302 p.p.m. of B.O.D. in 1939. The pollution load of

the Canal in 1940 was much less than in the year 1939

(Iilinois’ Exhibit 61, R. 3529; Mohlman Exhibit 13A, R.

3304; Opponents’ Exhibit 14, R. 3030).

We submit that the testimony of the witnesses who

observed the condition of the Illinois Waterway in 1940

and in other years, together with the record of improve-

ment in treatment of the sewage of the Sanitary District

of Chicago, the observations of the condition of the water-

way made by,the Master during the summer of 1940, the

photographs of the Canal taken from the bridge on High-

way 45 in 1940 (Opponents’ Exhibits 8 and 16, R. 2762

and 3387) conclusively establish :hat the condition of the

Illinois Waterway in 1940, while open to improvement,

clearly was not such as to create any nuisance affecting

public health, nor such as to constitute a menace to the

health of the inhabitants of Lockport or Joliet. Howson,

R. 1948, JA-I, 340; Ellms, 2326, JA-I, 472; Dr. Enzer,

2148-51, 2161-2165, JA-I, 538-547; Dr. Perkins, R. 2460,

2474, JA-I, 521, 526; Dr. Krumbiegel, R. 2180, 2190, JA-I,

sae

: -.

554, 558; Observations of the Master, 855-857, 1088-1098,

J A-I, 699-706; Dr. MeNally, R. 2669, 2700, JA-I, 491, 501; Dr,

Gute, R. 2209-2211, JA-I, 565; Dr. Nichols, R. 3132, JA-1, ,

510-511; Opponents’ Exhibits 1, 4, 5, R. 1919A, 1931, 2123;

Dr. Frederick, R. 464-465, JA-I, 589-590; Opponents’ Bx.

hibits No, 6, JA-II, 96; No. 7, JA-II, 98, No, 15, JA-I,

108-116; No, 23, JA-II, 117-121; No. 24, JA-II, 121), ;

“t 4. The actual condition of the Illinois Waterway today by

reason of the introduction of untreated sewage is such

, «as to result in no nuisance condition affecting health nor

to constitute any menace to the health of the inhabitants

of communities along the Illinois Waterway.

(a) The ‘condition of the Illinois Waterway has improved

progressively since 1939 and today is better than in 1940 or in

previous years.

: The Sanitary experts of the opposing Great Lakes States

and of the State of Illinois, are, in general, agreed that

condition of the Illinois Waterway has improved progres-

sively since the latter part of the year 1939 when the

Southwest Side sewage treatment plant was substantially

fully completed and began to operate substantially all of

its units (Mohlman R. 267; Mohlman Exhibit 13A, R. 3304;

[ilinois’ Exhibit 61, R. 3529; Opponents’ Exhibit 14, R.

3030, JA-IT, 107).

Mohlmann Exhibit 13A (R. 3304) shows that the pollu-

tion load of the Sanitary District Canal in 1941 will be

only 33% of the pollution load in 1938. The pollution load

of the Canal will be only 30% in 1941 of the pollution load

in 1938 as shown by Exhibit 61 prepared by Pearse (R.

3529). The pollution load of the Sanitary Drainage Canal

in 1941 will be only 26% of the pollution load of the Canal

in 1938 according to Howson, as shown by Opponents’ Ex-

hibit 14 (R. 3030, JA-II, 107). The direct diversion of

—— ae

= ad

_— ”-

31 a

water from Lake Michigan was reduced on December 31,

1938, from 5000 c.f.s plus domestic pumpage to 1500 cubic

second feet plus domestic pumpage. However, the com-

parative improvement in the pollution load as testified. to

by Moklman, Pearse and Howson indicate how much im-

proved the Illinois Waterway is today even with the re-

duced diversion of 1500 c.f.e. over the condition of the

Waterway in 1939 when the reduction in diversion first

became effective or in 1938 when 5000 c.f.s. was abstracted

from Lake Michigan. 1

‘s

ee ee ee eee Eee Se

- ~ ~

The Comparative Improvement in Pollution Load of the Chicago Drainage Canal May Be

Noted in the Following Table Based on the Testimony of Mohlman, Pearse and Howson

Ultimate After

neat

1938 1939 1940 1941 re

Dr. Mohlmah: Based on Exhibit pap ie

No. 13-A (R. 3304) tons of vol- of

atile solids to canal... (123,100) (115,658) ( 76,472) ( 40,910) ( 18,720)

f 100% 94.% 62% 33% 9 15%

Mr. Pearse: Based on Illinois Ex- -_—"

hibit. No. 61, R. 3529, 5-Day B.

O.D. lbs. per day, including B.

O.D. from old sludge, but no

credit for improvement due to :

reaeration of canal surface. (630,800) (562,300) (386,000) (194,000) ( 33,000)

100% 89% 61% 30% 5%

Exhibit 61, R. 3529). 17.3 30.2 20.6 10.3

of B.O.D. to Canal... (645,000) (539,400) (421,050) (169,000) (100,000)

B.O.D. of sludge and canal re- 100% 84% 65% 26% 15%*

*Computed in ratio of 100,000 Ibs. to 169,000 Ibs. to 26% in 1941.

d With respect to all figures of Dr. Mohiman, Mr. Pearse and Mr. Howson the pollution load

7 for the year 1938 is taken as 100%, and the percentages in subsequent years reflect the pollu-

; tion load in per cent of that present in 1938. Y ;

Illinois Exhibit 61 (R. 3529) shows that the B.O.D. in the Canal in 1941 will be only 10.3

P-P-M. as compared to 22S P-p-m. in 1940. or 30.2 p-p.m. in 939. and 1 7.3 p-P-m. in 19:

RS SLA RIN Le ESS is TSAI SCERURBE NS. 05 osm as seiehtaiaiateasimeniie , : .

eis em i

i ee

R 33

(b) In the year 1941, conditions in the Illinois Waterway

with 1500 c.f.s. are and will be improved over conditions which

obtained in the Illinois Waterway in 1938 with 5000 c.f.s.

After the foregoing exhibits had been introduced and

after the Brief of the Respondent Great Lakes States was

filedtwith the Special Master and served upon Illinois, the

Staté of Illinois, at the New Orleans hearings, introduced

what it called a corrected exhibit of former Illirois’ Ex-

hibit 61 which was marked and received as Illinois’ Ex-

hibit 61-A (R. 4033).

The revised figures submitted by witness Pearse indi-

cate that according to their latest estimates the 5-day

B.O.D. at Loékport during 1941 would be 361,500 pounds

per day instead of 194,000 pounds per day as originally ©

computed on Illinois’ Exhibit 61 (Report of Special Mas-

ter Lemann, p. 67). According to the revised figures ap-

pearing on Illinois Exhibit 61-A, the 5-day B.O.D. at Lock-

port in p.p.m. would } 21 instead of 10.3 as originally

computed. b

After Mr. Pearse had submitted his revised figures he

testified,

‘‘that he would be disposed to again revise them so

as to reduce to 346,000 the figure of 406,000 appear-

ing in the 1941 and 1942 columns (as B.O.D. demands

from current deposits of sludge and/or effluents) in

order to give proper weight to probable decreases in

B.O.D. from West Side and Southwest effluents.’’ (Re-

port of Special Master Lemann, p. 67).

Mr. Howson, Chief Sanitary witness for the Respondent

Great Lakes States, challenged the accuracy of the revised

figures introduced by the State of Illinois and asserted

that conditions at Lockport in the summers of 1941 and

1942 will be materially better than claimed by Illinois.

' Mr. Howson contended that even upon the revised figures

ee EEE ened

appearing in the Illinois Exhibit 61-A, the B.O.D. at

Lockport in the summer months of 1941 and 1942 should

properly be determined by taking that proportion of the

-estimated sources of B.O.D. in those years which (1) the

actual B.O.D. at Lockport in the earlier years was to

(2) the total sources of B.O.D. in the earlier years. On

this basis, even upon the revised figures, Mr. Howson as-

serts that the B.O.D. at Lockport in the summer months

of 1941 will be 13.5 p.p.m. and 11.5 p.p.m. in 1942 instead

of the revised estimates of 21 for 1941 and 17.6 for 1942,

as estimated by Illinois (Report of Special Master Ve: :

mann, p. 68).

Mr. Howson originally computed that during the three

summer months of 1941 and 1942, the B:O.D. at Lockport

would be 7.3 p.p.m. and 4.8 p.p.m. (Report of Special Mas-

ter Lemann, p. 68).

It is manifest from the foregoing that even on the basis

of the revised figures introduced by the State of Illinois

that in the year 1941 conditions in the Illinois Waterway

"cat Lockport with 1500 e.f.s. will be materially improved

during the summer months over conditions which obtained

in the Illinois Waterway at Lockport in 1938 with 5,000

c.f.s., and that no nuisance conditions from odors wil! re-

sult anywhere along the Illinois Waterway during 1941 or

1942 or thereafter,

Illinois complains that the Special Master based his con-

clusion of present and past conditions at Lockport and

Joliet on the memory of a certain few witnesses and not on

an actual analysis of the water. This exception appears to

the respondent Great Lakes States as frivolous and spe-

ious inasmuch as the water from the Canal and the Des

laines and Illinois Rivers is not used for drinking, bath-

ng or other domestic purposes and because analysis of the

water will show neither the existence of nor the intensity

of odors, if any. It is clear that the only way one could

DTT ee ET EEE eer Ca ee

Ce ST iar ARS COW 2

determine the present and past conditions at Lockport and

Joliet along the Waterway would be by the testimony of

persons“familiar with conditions as they now exist as com.

pared to conditions as they have existed at those points in

the past.

The witnesses upon whose testimony the Special Master

relied in pari, and whose testimony is attacked by Illinois

as being inconsistent were both United States Government

employees—one the U. 8S. Lockmaster at Lockport and the

other the Principal] Assistant Engineer of the War Depart-

ment at Chicago, who had been familiar with the Illinois

Waterway for a great many years. An examination of the

record discloses that the testimony of Andrew (JA-I, 261)

and Callahan (JA-I, 633) as to conditions in 1930 is not

inconsistent in any particular, but on the other hand is

thoroughly consistent. Andrew testified that conditions

at Lockport in 1925 andein 1939 were the same and that

conditions during the period from 1926 on up to the com-

pletion of the Brandon Road dam in 1933 were very bad

because of the turbulent stretch of shallow river running

through Joliet which caused the spray to be diffused into

the air carrying with it the offensive odors of which com-

plaint was made. It should also be noted, according to the

testimony of both Callahan and Andrew that conditions

began to clear up in the thirties, despite the fact that the

progressive reduction in diversion of water from Lake

Michigan under the decree became effective whereby on

July 1, 1930 the direct diversion was reduced to 6500 c.s.f. >

and to 5000 c.s.f. on December 31, 1935. Of course, the rea-

son for the improvement in conditions was due to the in-

creased treatment of the sewage of Chicago by the Sani-

tary District.

At this point we might also comment briefly on the objec- A

tion raised by Illinois to the evidence of certain witnesses

from communities below Joliet along the Illinois Waterway.

“

. oe Satins ae i Wake e Seb te ¢ - ~ ve an Se Si NA SE ees een gee oe ee ee ee ee

LE AB Mi Set AL OSS A ee Bas SE aE IEA ee ee

The witnesses were Dr. Kerr and Messrs. Moore, Detweiller

and Goodell, who testified concerning conditions today along

_._ the Illinois Waterway from Joliet to down below Peoria

~ as compared with conditions in the past. These witnesses

objected to any increased diversion by Illinois on the

ground that it might bring more sewage down to Peoria

and the communities below. Certainly these objectors have

as much interest in and right to give their testimony on the

question of increased diversion as the residents of J oliet

and Lockport because of the effect which might be pro-

duced downstream if more water from Lake Michigan were

authorized.

0 te that these ebjectors have complained about

nuisance conditions created in the waters of the Illinois

Waterway by the Sanitary District of Chicago for more

than twenty years discloses the complete lack of equity of

Illinois to now urge such complaints from Joliet and Lock-

port as a basis for obtaining more diversion at the expense

of the respondent Great Lakes states and their citizens as

well as to the detriment of the citizens of the State of

‘ Illinois residing in the lower Lilinois River communites.

We submit that the record conclusively establishes that

the inhabitants of Joliet and Lockport, Illinois, will not

suffer any annoyance or inconvenience from odors from the

[linois Waterway during the summer months of 1941 or

1942 or thereafter.

5. The request of Illinois for a controlled increased diver-

_ ston of water from Lake Michigan during 1941 and 1942

in an amount sufficient to insure one pari per million of

dissolved oxygen in Brandon Road Pool is wholly with-

out merit. ;

~, In its so-called modified petition, referred to in its brief

“Pekitted to the Special Master, the State of Illinois sug-

gests that Illinois should be granted a temporary controlled

}

———

increase in diversion of water from Lake Michigan for

the years 1941 and 1942 to be measured by the amount

‘of water necessary to produce one part per million of

dissolved oxygen content in the water above the dam of

Brandon Pool. Here Illinois again is setting up a high

standard, one which it never bas had in the past, to be

obtained at the expense of the Great Lakes States and

their peoples. An examination of exhibit 37-a, JA-II p. 35,

indicates that during the period from the year 1925 to

1940 the dissolved oxygen in the water at Lockport dur-

ing the summer months of each of such years has gone

down to zero (Report of Special Master Lemann, p. 70).

See also the testimony of Dr. Mohlman (R. 281, JA-I, 204).

An examination of the table prepared by the Board of

twenty-eight experts employed by the Sanitary District of

Chicago and published by the Sanitary District in its

document, entitled Vol. III Sewage Disposal, at page 45,

discloses that from 1911 through 1924 for an average of

157 days of each of said years the dissolved oxygen con-

tent in the water at Lockport was below one part per

million. The presence of any dissolved oxygen is suffi-

cient to prevent nuisance and a minimum of 1 p.p.m. of

dissolved oxygen is not necessary (Report of Special Mas-

ter Lemann, p. 56).

Thus it will be seen that Illinois is asking for a standard

it has never had in the past, one that is not necessary to

prevent nuisance conditions in the Waterway. The sug-

gestion that Illinois be granted a controlled increased

diversion would be placing a premium or bonus on inefi- *

ciency. Under the suggested plan, the more inefficiently

the sewage disposal plants of the Sanitary District of

Chicago are operated, the greater the amount of diversion

of water from Lake Michigan that could be obtained. In-

asmuch as no menace to health exists along the Illinois

Waterway at any point, no increase in the diversion of

water from Lake Michigan is necessary. However, if the

court should hold that some increase in diversion is neces.

sary, the suggested controlled temporary increase in diver.

sion would be clearly objectionable from every standpoint.

The past record of Illinois and the Sanitary District of

Chicago certainly arouses av confidence in either their

willingness or their ability to function and perform effi-

ciently and speedily so as to restore to the respondent

Great Lakes States and their peoples the rights, which

have heretofore been adjudicated by this court, and of

which Illinois and the Sanitary District have for so many

years deprived them. As the Special Master points out,

the record shows that the Sanitary District of Chicago

has been influenced not by any desire to make speed but

rather by the purpose to complete ultimately its sewage

disposal program at as little expense as possible to its

taxpayers (Report of Special Master Lemann, p. 107), and

that every increased diversion from the Great Lakes re-

moves a stimulus to Illinois to speed the work necessary

to carry out the decree of the court of April 21, 1930 as

amended (Report of Special Master Lemann, p. 109).

6. The Ten-Day Flushing Test Resulted ina Very Decided

Improvement of the Illinois Waterway from Chicago

Through the Brandon Road Pool.

Illinois complains that the ten-day experimental flushing

test during the period December 2d to December 12, 1940

will increase the need at Brandon Pool for increased diver-

sion of water in the summers of 1941 and 1942. The fact

of the matter is the result of the experimental ten-day

flushing test was that of the offensive material carried into

the Pool by flushing, a larger percentage was carried out

of the Pool than the total material taken into the Pool,

In other words 52.8% of the tons of B.O.D. carried into

the Pool were carried out of it. The flushing scoured out

the Illinois Waterway through the Canal and above the

Brandon Road Pool. This means that the Sanitary Drain,

age Canal above Lockport havigg been well scoured ‘out

ee Ee

Sony

;

‘3

;

‘a

will permit the lake water to reach the Brandon Pool in

much better condition so far as dissolved oxygen is con-

cerned, than during previous years. Thus, despite the

fact that much of the material swept down the Canal by the

increased flow did not carry through the Pool, but was

deposited therein, the entire Canal from Chicago to below

the Brandon Road dam was improved by at least fifty per

cent. Therefore, the water from Lake Michigan will have

much more dissolved oxygen than in the past to neutralize

the odors. which might arise from the putrefactive material

deposited in the Pool. The cleansing of the upper reaches

of the Waterway will more than offset the disadvantage

of the deposit in the Brandon Pool of the material which

was brought down from the upper reaches by the increased

flow during the ten days. (Report of Spécial Master

Lemann, pages 78-82.)

7. The Brandon Road dam creating the Pool was initiated

and begun by the State of Illinois prior to 1930 and was

completed by the Federal Government in 1933.

Illinois complaixgthat at the time of the decree of April

21, 1930 and of its enlargement May 22, 1933, the Court

did not have before it any matter relating to Brandon

Pool at the lower end of the City of Joliet. The fact is

that the situation at Joliet through the construction of

Brandon Pool was brought about by the State of Illinois

itself through the planning and beginning of the construc-

tion of the dam near Brandon Bridge at Joliet, which re-

placed the former turbulent flow of the DesPlaines River

and its great purifying capacity with a slack-water, stag-

nant pool. After the passage of the Act of Congress of

July 3, 1930, which federalized the Illinois Waterway, the

Federal Government took over and. completed construction

of the Brandon Read dam in 1933. The Federal Govern-

ment merely carried out and completed the plans and ideas

of the State of Illinois on this subject.

[a \

Il. ‘‘WHETHER, AND TO WHAT EXTENT. IF ANY, THAT

CONDITION (OF THE ILLINOIS WATERWAY) con. /

STITUTES AN ACTUAL MENACE TO THE HEALTH oF

THE INHABITANTS OF THE COMPLAINING COMMUNI.

TIES.’’ i

(a) The record conclusively establishes that the actual

condition ef the Illinois Waterway by reason of the intro.

duction of untreated sewage therein has not constituted

and does not now constitute a menace to the health of the

inhabitants of the complaining communities and no in.

crease in the diversion of water from Lake Michigan, |

though temporary in nature, is necessary to protect the t

interests of public health.

1. The Scope of the issues on the present reference.

(a) Material allegations in the petition of the State of Illi.

nois with respect to the alleged health problem.

The petition of the State of Illinoisfor temporary zaodi-

fication of the decree of April 21, 1936, which petition was 5

filed with this Court on January 15, 1940, contains the ‘i

following allegations with reference to the alleged effect

of the condition of the Illinois Waterway on the health of

persons living or working along said waterway. At pages

8 and 9 of the Illinois petition is the following pertinent

paragraph, to-wit: ,

‘‘Subsequent to Decémber 31, 1938, when the divei-

sion of ldke water was reduced to 1500 cubic feet per

second there has been stagnation in the Sanitary Dis-

trict Canal and the Illinois Waterway. This stagna-

tion has resulted in the formation of thick, black,

bubbling scum for long distances along the Sanitary

District Canal and the Illinois Waterway. Because

of the effluent of sewage from the Sanitary District

of Chicago into said Sanitary District Canal and the

Illinois Waterway a putrescent, obnoxious, noisome

and unhealthful odoy exists, causing nausea, insomnia,

loss of appetite, irritation of the mucous membrane of

STL eee

i en Te ed

the nose and throat and in general the undermining of

the health of those persons living or working along

the Sanitary District Canal and the Illinois Water-

way. This condition aggravates illness and retards

the recovery of patients ill in hospitals located along

said Sanitary District Canal and the Illinois Water-

way.”’

« (>) The order of reference, dated April 3, 1940.

The order of this Court of April 3, 1940 referred the

causes herein to Special Master Lemann for summary

inquiry with reference to three issues of fact, among them

the question whether and to what extent, if any, the actual

condition of the Illinois Waterway constitutes an actual

menace to the health of the inhabitants of the complaining

communities (309 U. S. 636).

‘*Actual’’ is defined in Webster’s New Jnternational

Dictionary (second edition) as follows: i

‘*Exist in act or reality; really acted or acting; in

fact; real opposed to potential, possible, ostensible,

virtual, speculative, conceivable, ideal, theoretical,

hypothetical or nominal.’’

‘*Menace’’ is defined as follows:

‘*Projecting, threatening. The show of an intention

to inflict evil; a threat; indication of probable evil or

catastrophe to come.’’

Dr. Norbert Enzer, a witness for the opposing Lake

States, defined ‘‘Menace to health’’ as follows: (R. 2156-7,

JA-I, 542)

‘*T would use the word ‘menace’ with respect to

health as applied to something which was actively a

menace. In other*words, it would produce ‘deleterious

-effects to health to a sufficiently lsrge number of peo-

ple who came in contact with it so that one could say

that it eliminated the accidental factor of some par-

ticular or peculiar individual’s suseeptibility.’’

Professor Andrew (. Ivy, a witness for the State of

Illinois, in stating why he thought the Waterway consti-

tutes an actual menace to health said:

**We abate smoke, we abate noise, we abate dust,

we try to abate pollen distribution because of hay

fever sufferers; we abate stray dogs because of threat

of rabies and the spread of disease by stray dogs, and

when a water supply is threatened with pollution,

there is any question that the water snpply might be

polluted, we immediately take steps to take care of

the situation, and it is on the basis of generalizations

and principles of that sort that I believe there is an

actual menace to health existing there now.”’ (R. 3037,

JA-I, 307.)

In the above quoted definitions may be found the con-

flicting theories of the State of Illinois and the opposing

Great Lakes States with reference to the issue concerning

the health of the inhabitants of the complaining com-

munities.

It is the contention of the opposing Great Lakes States

that the phrase ‘‘actual menace to health’’ as used in the

order of this Court means that the effects on the health of

the people residing near the Waterway must be real and

&£igt in fact, as opposed to any potential, speculative,

hypothetical views on what might happen, unsupported by

ftty, real cases or actual happenings. On the other hand,

it is the theory of the medical experts called by the State

te _of Illinois that an actual menace to health may be shown

by mere speculative and theoretical guesses as to what |

might possibly happen in the future, unsupported by any |

actual happenings in the past, and based upon generaliza- |

tions that smoke, dust, odors, noises, carbon monoxide |

gases from automobiles on the streets, and the like, are all -

harmful to the human system and should be abated. In |

addition, Illinois contends that the test is the effect of the |

Waterway upon invalids and persons of less than average

= )

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health rather than the , t upon persons of normal

health. With this view, the opposing Lake States earnestly

disagree.

2. The record conclusively establishes that the evidence

introduced by Illinois concerning the alleged effect of

the Illinois Waterway on the health of the residents of

Joliet and Lockport falls far short of establishing a

menace to the health of the people of those communi-

ties and at the most shows only annoyance, discomfort

and inconvenience suffered by some people, chiefly dur-

ing the summer of 1939.

During the hearings held at Joliet, Illinois, the week of

July 22, 1940, a total of 127 witnesses testified before the

Special Master (Report of Special Master Lemann, 12).

The genera] trend of the testimony by the lay witnesses

and doctors related to the personal experiences of the

witnesses during the summers of 1939 and 1940, although

some of the witnesses also testified as to the experiences

of members of their family, while several school teachers

testified with respect to the health of the children under

their care.

A summary of the testimony discloses that during the

year 1939 odors from the Illinois Waterway at most

annoyed certain witnesses, or annoyed members of their

families or children under their care, and that such odors

were worse in 1939 than in previous years. Most of the

witnesses are agreed that the odors in 1940 were not nearly

as bad as the odors in 1939.

Many of the ivitiidlensé complained of having suffered

nausea or insomnia, or loss of appetite in 1939 or 1940 and

some witnesses also testified concerning impetigo and sinus

trouble. There was also some testimony of the effect of

the proximity of the Illinois Waterway on the health of

patients in St. Joseph’s Hospital at Joliet, Illinois.

‘?

We submit that a reading of the record discloses that

all of the symptoms and complaints alleged to have been

suffered by residents of Joliet and Lockport during 1939

and 1940 are trivial in character” transient and inconse-

quential, and could have been due to numerous éthet Calises

rather than to the Waterway.

3. The evidence with respect to complaints’ concerning

neusea establishes that since nausea may result from

numerous causes tt is speculative that the Illinois Water.

way is responsible for any of the cases of nausea herein

complained of.

Dr. Thomas H. Wagner defined nausea as a ‘‘sick

stomach’’ (R. 887, JA-I, 636). He stated that was as near

as he could get to it. When Dr. Wagner was asked to

name the common causes of nausea, he answered: **Oh,

my gosh, that would take me ai hour” (R. 887, JA-I, 636),

He was then questionéd as follows:

Q. ‘‘There are so many causes, then, it would

take you an hour to name them?”’

and he answered: :

A. ‘Certainly, many causes of it.’’

It seems elementary that since there are many common

causes for nausea it is often impossible to determine just

which cause is responsible for the symptoms complained

of. One witness, J. G. Nichols, in testifying that his wife

became nauseated and suffered from loss of sleep and

loss of appetite in 1939, frankly stated that those things

hadn’t happened this year (1940) and that his wife had

been nauseated but he thought it was on account of the

heat (R. 1302, JA-I, 684).

Of the 127 witnesses who testified at the J oliet hear-

ings, about 34 per cent testified that they personally had

been nauseated either in 1939 or 1940, while about 22

per cent of such witnesses testified that members of their

families, patients, or school children in their care suf-

fered from nausea, either in 1939 or 1940.

Many of the witnesses who testified that they person-

ally suffered from nausea or that members of their family

suffered from nausea during 1939 or 1949 were of the

opiniog that the odors from the Illinois Waterway were

responsible for this condition. Dr. Wagner, a physician

practicing in Joliet, testified for Illinois that all indi-

viduals would not be susceptible to odors from the Illinois

Waterway, it would depend entirely upon the individual. In

the words of Dr. Wagner a normal individual in the pres-

ence of this odor would not necessarily become nauseated.

‘“‘It depends whether he is susceptible to that odor.

As I said before some people are susceptible to the

odor of a rose, which is supposed to be a perfume.

They become nauseated and sick, the same way people

become nauseated from the odor from the canal or

from gas or anything’’ (R. 896, JA-I, 637-638).

In other words, the average individual would not be

susceptible to odors from the Canal, but only the sensi-

tive, susceptible person might be annoyed by certain odors

whether they came from a polluted Waterway or from a

rose.

Dr. Wagner testified further that an individual could

become accustomed to odors emanating from the Canal,

that is,“‘‘you can become accustomed t& almost anything

if you live with it long enough’ (R. 8 4). Surely, the

Illinois Waterway with its 40 year record ns yi polln-

tion should have allowed residents of Jolie ample time

to become accustomed to odors from the Waterway. Dr.

Norbert Enzer, a witness called by the opposing Great

Lakes States, testified on this point as follows:

“‘I might say with respect to odors that they car.

be annoying; they can be a source of discomfort ;

( 46

they can produce even symptoms on oceasion, but

they are transient, they are effunescent, they don’t

cause a disease, they don’t undermine health, and,

as a general rule, people who are constantly exposed

to the same odors rapidly became ‘adjusted to them

so they very soon become less conscious of it and

finally do not notice it at all”’ (R. 2151, JA-I, 540).

It should be noted that the number of people who actu-

ally testified to having suffered from nausea in 1939 or

1940 were’ and are but a very small percentage of the

total number of witnesses at Joliet and a very small per-

centage of the total population of the communities of

Joliet and Lockport combined (total population of about

50,000) and a still smaller percentage of the 150,000 peo-

ple within the trading area of Joliet. Nausea is a com-

mon symptom in our modern life and,one not associated

solely with sewage pollution or waterways. It would be

highly speculative to say that every case of nausea testi-

fied to at the Joliet hearings was directly caused by odors

from the Waterway Even the witnesses don’t all go that

far in their claims. ‘With numerous causes of nausea, it

is probable that most of the complaints were due in part

cr wholly to causes nui connected with the Waterway.

Finally, nausea does not undermine the health and is in

general inconsequentfal and transient, and certainly not

a menace to health as the physician understands it (Dr.

Enzer, R. 2168, JA-I, 548; Dr. Perkins, R. 2483, J A-I, 528).

4. The ability to find sleep easily during the summers

of 1939 and 1940 could have been due to the heat or

‘ other causés not connected with the Illinois Waterway.

Some witnesses at the Joliet hearings testified concern-

ing less of sleep or the difficulty of going to sleep. About

46 per cent of the witnesses who testified at Joliet stated

that during the summer months of 1939 or 1940 they had

some complaint to offer with respect to their ability to

}

? :

“y

go to sleep or to loss of sleep suffered by them. About

22 per cent of the witnesses at Joliet described the diffi-

culty that members of their family had in going to sleep

or concerning the loss of sleep suffered by members of

their family. Other witnesses testified they were not

affected in this way at all. One witness was frank to

admit that last night. ‘‘the heat was keeping me awake

more than anything’’ (Sherman, R. 823, JA-I, 628).

The Special Master was not troubled at night at Joliet

by odors and the only trouble he had in sleeping was due

to the heat, which was so great that “he kept an electric

fan constantly going all night (Report of Special Master

Lemann, p. 29). The four days the Master spent in Joliet

were the hottest of the summer of 1940, the temperature

reaching 103 degrees on July 25th. :

Sherman testified on Tuesday, J uly 23; 1940. The

maximum temperature on that date was 97 degrees, while

the maximum temperature on. July 22, 1940 was 94 de- >

grees (Opponents’ Exhibit 18, R. 3391). d

Concerning the effect of loss of sleep upon the health

of a person, Dr. Norbert. Enzer, on erass examination, tes

tified as follows:

‘IT can conceive, for example, that the loss of sleep

that is going on in-London now might affect some of

the people there in an unfavorable manner, but loss

of sleep as an incident, I don’t think, contributes to ill

health, and if the thing that produces the loss of sleep

at the time we sleep is normally expected is continued

. over a long period of time, the normal individual will

readjust himself and find his sleep at other times”’

(R. 2172, JA-I, 550). ©

The Court will take judicial notice of the fact that

even the normal, healthy ix. tividual suffers from inability

to sleep due to heat, worry, fatigue, overwork, concentra-

tion on work, indigestion, and the like, and that it wouid

48 °

what caused a particular individual to lose sleep or to

have difficulty,in going to sleep. Moreover it is common

e knowledge that almost everyone has at times suffered

from inability to find sleep easily. Lack of sleep or in-

ability to find sleep easily constitutes no menace to health, |

Every person has at one time or another had difficulty in }

finding sleep due to worry, illness, upset stomach, the heat, j}

or the like. In fact, it is common knowledge that one of

the principal causes of inability to find sleep during the

summer months is the heat. It is clear that every case ‘

of inability to sleep at Joliet and Lockport in 1939 and 1940

was not due solely to the Waterway. It would be specu- |

lative to say that it was. The Court will take judicial

notice that the drug stores throughout this country today

sell large quantities of sleeping drugs and potions to induce

sleep for those persons who are unable to find sleep easily. }

Insomnia or sleeplessness was known to the people of

Joliet and Lockport long before the final cut in diversion

was made on December 31, 1938.

be very difficult to say with reasonable assurance just

}

We submit that insomnia or inability to find sleep easily

dces not undermine health, is. a complaint universally

noted everywhere, and is not a menace to health, at least

not as testified to in these causes. J y

5. Loss Of appetite may result from.so many causes that

it is speculative and conjectural to say that the prox-

wmity of the Illinois Waterway is in any way responsi-

ble for such complaints at Joliet.

About 22 per cent of the witnesses who testified at the

Joliet hearings stated they suffered from loss of appetite

during the summer months of 1939 or 1940. About 22 per -%

cent of the witnesses at Joliet testified that members of

Saar

their family suffered from loss of appetite. Loss of appe-

tite is not rave and may be due to numerous causes (Ivy,

R. 3072-3073, JA-I, 324).

49 -

At the outset, the attention of the Court is invited to

the fact that, with one or two exceptions, all the people

who testified at the Joliet hearings appeared to be very

healthy and many of such witnesses seemed to tend to

overweight. With but one or two exceptions there was no

testimony that any one of the witnesses were compelled to

give up even a day’s work due to loss of appetite, nausea

or loss of sleep.

Approximately 78 per cent of the witnesses testified

that they did not suffer “rom any loss of appetite or didn’t

mention anything about loss of appetite. In fact, the wit-

nesses who were asked directly concerning their health

either testified it was fine (Koehl, R. 1308, JA-I, 685) or

that their health was all right (Marietta, R. 755, JA-I, 623)

or that they were immune to those things (Nichols, R.

1302, JA-I, 684) or that they couldn’t blame their health

on the river (Swanco, R. 751, JA-I, 623).

Dr. Wagner when he was asked whether Joliet is gen-

erally a pretty healthy community, replied: ‘‘Well, I

believe so, yes; as good as the average’’ (R. 893, JA-I,

637). Dr. Wagner was then asked the following ques-

tion by the Special Master:

Q. “One of the questions that the Supreme Court

will have to decide is where does something become

a menace to health as distinguished from annoyance,

‘unpleasantness, disagreeableness or lack of enjoy-

ment. Would you say that this condition here is a

menace td~health?”’

Dr. Wagner replied:

A. ‘‘Well, to the average healthy individual I must

honestly state that I don’t believe it is a menace to

the health of the average healthy individual * * * (R.

892, JA-I, 637). |

It should also be noted that the witnesses who testified

at the Joliet ‘hearings were all average normal, healthy

“3

individuals, as could be noted by their appearance and as

was disclosed by their testimony. Most of such witnesses

resided in Joliet which was described by Dr. Frederick,

City Health Commissioner, as a healthy community (R,

464, JA-I, 589). From the physical appearance of these

witnesses any temporary and slight loss of appetite cer-

tainly had no effect on their weight or appearance, even

if we assume for purposes of argument that the Water.

way caused the loss of appetite. In any event occasional

loss of appetite is not a serious matter. In fact a little

loss of appetite would be beneficial rather than detrimental

for most people. It is highly speculative to say that the

cases of loss of appetite testified to at Joliet were caused

by odors from the Canal rather than from indigestion,

worry, the heat or some other cause.

6. There is a a proof that the condition of the Illi-

nois Waterivay is responsible for any actual case of

retarding the recovery of patients at St. Joseph’s Hos-

pital or elsewhere.

Some of the doctors called by the petitioner, State of

Illinois, testified that the odors from the Illinois Waterway

might aave the effect of prolonging the time of the recovery

of patients in hospitals adjacent to the Illinois Waterway.

Dr. Wagner testified that while he thought the conditions

along the Illinois Waterway did not constitute a menace to

the health of the average healthy individual, it would be

a menace to the health of the individual ill from other

causes or who is not strong (R. 892, JA-I, 637).

Dr. Lannon testified he thought that the odors from

the Waterway ‘‘would postpone recovery of chronically

ill patients, probably heart patients’ (R. 525, JA-I, 598).

Sister Evangelisten stated that the odor retards recovery

and prolongs illness (R. 1188-1191, JA-I, 670).

The record, however, does not show one single instance

of an actual case where recovery of a patient has been

—

r x ‘

retarded due to the proximity of\the Illinois Waterway.

| Phe Special Master finds that ‘‘the average period of stay

in St. Joseph’s Hospital during 1939 was about one day

less than the average for general hospitals in the country

as shown by the records of the American Hospital Asso-

ciation.’? (Report of Special Master Lemann, p. 19.)

This finding is supported by Opponents’ Exhibits 30 and”

31 (R. 3985, 3988, JA-IT, 122) which show that the average

hospital stay of patients at St. Joseph’s Hospital for the

year 1939 was 11.48 days while the average stay of pa-

tients in general hospitals of the United States was 12.46

days. These records demonstrate that the theory that

odors from Illinois Waterway have or might result in

retarding the recovery of patients in hospitals is pure spec-

ulation and not based upon actual facts. While some pa- |

tients, because of their illnesses, might find disagreeable |

odors annoying or uncomfortable, yet other patients might

find the same condition true from inhalation of the odor of

a rose (Dr. Wagner, R. 896, JA-I, 637-638).

“The observations of the Special Master during the

course of the hea.ings at Joliet that the testimony was not

based upon anything that happened but on suggestive fears

of what might happen (R. 482-483) is particularly ap-

plicable to the claim that odors from the Waterway retard

recovery of patients in hospitals4eéeated near the Water-

way.

There was some testimony to the effect that certain

patients were so anxious to escape the odors from the

Illinois Waterway that they left the hospital before they

were ready for discharge. It is manifest that an early

return irom a hospital is not an unusual. experience.

Every hospital is faced with the situation where patients

are anxious to return home before they are ready to be

discharged and such patients often leave before they

really should. Nevertheless no patient is ever permitted

, '

to leave the hospital before the doctor on the case approves

the discharge of such a patient. It is clear, therefore that

there is no foundation in the record for the contention

that odors from the Illinois Waterway have retarded the

recovery of patients in hospitals near such Waterway.

RE as a

7. The proximity of the Illinois Waterway has not caused

~““eamy general undermining of health of persons working }

or living along such waterway.

(a) The witnesses who testified at Joliet, with but one or

two exceptions, were average, normal, healthy “fndividuals of

normal or above-normal weight who lost no time from work as

@ result of any illness. :

—

It was manifest from the physical appearance of the

witnesses who testified at the Joliet hearings that they

were average, normal, healthy individuals, most of whom

tended to overweight and who, with but one or two ex-

ceptions, had lost no time from work due to any illness

These individuals all came from a community which the ,

Health Commissioner described as a good, healthy com-

Y munity (Dr. Frederick, R. 464, JA-I, 589) and other doc-_

tors echoed this opinion, (Dr. Wagriér, R. 893, JA-I, 637). ?

The only exceptions to the rule that the witnesses

testifying at the Joliet hearings were average, normal ls

healthy individuals, were the cases of the lady who testi-

fied that she became ill due to odors from the Illinois Wa-

terway and her husband made her quit working (Mrs.

Mitchell, R. 660, JA-I, 613) and the case of the doctor

who testified that a patient of his, a river pilot, suffered

an infegtion due to water sprayed from the Illinois Water-

way during one of his trips. The doctor stated that he

ordered this pilot to quit his work for a time and take a

vacation in order to recover from the effect of the infec-

tion and from nervousness (Dr. Curtis, R. 569, JA-I, 603).

SILT TT eee OY

oe P

The Master noted, during the course of the hearings,

that the people who testified at Joliet as to inability to eat

and sleep all looked healthy and appeared to be tending to

overweight and this fact was borne out by the testimony

of the witnesses who were asked concerning their health

(Callahan, R. 859-867, JA-I, 633; Mohr, R. 868-871, JA-I,

634; Koehl, R. 1308, JA-I, 685; Nichols, R. 1302, JA-I,

684; Imfeld, R. 1280, JA-I, 681; Argoudalis, R. 1277, JA-I,

681). :

As the Master observed during the course of the hear-

ings, ‘‘It seems prétty clear that the testimony so far

is not supported by anything that has happened so far;

that is, based upon anything but suggestive fears of what

ight happen. That, I think, is a bald summary of what

ey have said’’ (R. 482-483).

Nothing that transpired at the Joliet hearings after

the above statement was made, nor arv of the evidence

given thereafter has changed,the situation. The remain-

ing testimony taken during the course of the week was

mainly cumulative.

The statistical records of communicable diseases and

the testimony of the doetors plainly establishes that as far

as actual happenings go the condition of the Illinois Water-

way has not been proven to be a menace to the health

of the individpals residing along or working upon the IIli-

nois Waterway at Joliet awd Lockport, the two complain-

ing communities.

(b) The condition of the Illinois Waterway has .ot affected

the health of children in Lockport or Joliet.

[llinois contends that children in the Joliet-Lockport

area have been particularly susceptible to odors from

the Illinois Waterway resulting from the reduction in

diversion in 1939. There was some testimony to the effect

that children during the warm weather in April and Mzy

of 1939 and 1940 suffered nausea and restlessness (Eush,

R. 337-338, JA-I, 575; Wurtz, R. 379-381, JA-I, 578-579:

Blatchley, R. 405, JA-I, 582).

It is common knowledge that school children are quite

susceptible to illnesses and to symptoms such as nausea,

but that they recover very promptly from the same.

Nausea, whether suffered by children or adults, might be

induced by any one of a great many causes,(Dr. Wagner,

. R. 887, JA-I, 636). There was also testimony that the

children at one of the schools wha were most frequently

ill were girls between the ages of 10 and 12 (Wurtz, R.

388-389, JA-I, 580). Temporary illness is to be expected

in girls of that age and is a normal rather than unusual

incident of a girl’s childhood days.

The restlessness of children during the spring of the

year can easily be explained by reason of the fact that

with the coming of the vacation season children become

restless and are affected, just as are adults, wth what

is commonly known as ‘‘spring fever’ and a desire to

escape from schoolroom confinement. Mary S. - Wurtz,

Principal of the McKinley Public School in Joliet who

testified that during the years 1939 and 1940 some of the

children became ill, also stated that she was not attempting

to state the reason or causes for any of the .illnesses

mentioned; that she didn’t know the causes (R. 389). Miss

Wurtz further admitted that ‘‘children get sick any time

of the year’’ (R. 384, JA-I, 579).

The evidence in these causes falls far short of estab-

lishing that the Illinois Waterway affects in any way the

health of school children in Joliet or Lockport. On the

contrary the testimony shows, at the most, that the school

children residing adjacent to the Waterway are average,

normal youngsters who become ill occasionally, stay home

from school once in a while, become restless in the spring-

time when the weather begins to get warm, and, on occa-

tall

i Y Pt ae

sion, have to be sent home from school when they suffer

a stomach ache brought on by too much candy, too strenu-

ous play, the heat, or any one of a number of common

causes not connected with the Illinois Waterway.

8. The mortality and communicable disease rate statistics

indicate that Joliet, Illinois, is a very healthy com-

munity,

The mortality and communicable disease rate statistics

as furnished by the Department of Health, State of Illinois,

disclose that Joliet, Illinois, and other cities and vil-

lages located along or adjacent to the Illinois Waterway

are very healthy communities insofar as communicable

diseases are concerned (Opponents’ Exhibits 1, 4, 5; R.

1919a, 1931, 2123; Opponents’ Exhibits 6, 23, 24; R. 2126,

3454, 3460; JA-I, 96, 117, 121). Some of the doctors who

testified at Joliet expressed the fear that a typhoid epi-

demic may result from .he presence of the Illinois Water-

way at Joliet (Dr. Faulkner, R. 935, JA-I, 640; Dr. Fred-

erick, R. 455, JA-I, 588). However, the statistics show

that not only are the typhoid cases and deaths very fav-

orable in Joliet and cther communities adjacent to the

Illinois Waterway but that the death rates and case rates

age much lower than they are in many other communities

located away from the Waterway (Opponents’ Exhibits

1, 4, 5, 6, R. 1919a, 1931, 2123, 2126, J.A.-I, 96).

In the original decision in these causes ‘in the merits,

the Court ;-ointed out that it was postponing the restora-

tion of the just rights of the complainant Great Lakes

states for a number of years in order to eliminate any

danger of an epidemic or pestilence due to water-borne

diseases (278 U. S. 396). What the Court had in mind,

of course, was the fear of contamination of the water sup-

ply of the City of Chicago if polluted sewage should reach

the water intakes. It should be noted that no one of the

cities along the Illinois Waterway takes its water supply |

_ from such stream but all the water is obtained from deep

é 56

Wells, excepting Argo which purchases its water from the

City of Chicago (Pearse, R. 1692, JA-1, 182; Cheadle. R.

437, JA-T, 586; Testim, R. 1368-1369, JA-1, 695), a

The past health record of Joliet and other communi.

ties along the Illinois Waterway discloses that insofar as

reportable diseases are concerned, such comnitfhities are

very healthy places in which to live and the Health Com.

missioner of the City of Joliet, Dr. Frederick, admitted

the health of the people of Joliet was very good (R. 464,

JA-[, 589), and he further admitted that health conditions

in 1939 were no worse in Joliet than health conditions in

_ 1988 (R. 464, JA-3, 589),

% The air in the vicinity of the Mlinois Waterway con-

tains no more harmful substance or ingredients than

does the air in localities away from such Waterway.

(a) There are no more bacteria, toxins, bacilli or other harm.

ful substances in the air at Joliet or Lockport than would be

ordinarily found in localities away from the Illinois Waterway.

The examination of the contents of the air made at

locations along the Illinois Waterway at Joliet and Lock-

port and at locations away from such Waterway proves

conclusively that the inhabitants of Joliet and Lockport

have no more to fear from the air, over or adjacent to the

Waterway than people residing or working in cities lo-

cated away from such Wuterway.

Opponents’ Exhibit No. 7 (JA-I, 503, JA-II, 99) con-

tains the results of an analysis of the air in the vicinity

of Joliet and elsewhere on August 3, 1940, This exhibit

as interpreted by Jenkins and Dr. Moore shows that the

composition of the air above the Ilinois Waterway is no

different from the composition of the air in other parts

of the state {Report of Special Master Lemann, p. 35).

Opponents’ Exhibit No. 15 (JA-I, 503) is a report made

by Dr. M. Starr Nichols concerning an analysis of the air

and weter in the vicinity of Joliet, Ilinoisgmade on Sep-

tember 28, 1940 (JA-I, 502-521). This exhibit discloses

that the quantity and kinds of bacilli to be found in the

vicinity of Joliet, Illinois, do not differ from the number ;

and kirid to be found elsewhere (Report of Special Master

Lemann, p. 37). Ulinois offered no proof of analyses

of the air in or near Joliet.

(4) There is in the record no proof that atiy concentrations

whatsoever of hydrogen sulphide have been or may be found

‘a the air at Joliet or Lockport or any other place along the

Illinois Waterway. :

The witness Bergman (JA-I, 485-487) testified to’ the

analysis of the air made at Lockport and Joliet, Illinois,

on August 3, 1940, with respect to the amount of hydrogen

sulphide, if any, in the air. Bergman testified that he

was unable to find any trace of hydrogen sulphide in the

air (JA-I, 485; Report of Special Master, 34). It should

be noted that neither the petitioner, State of Illinois, which

has been making many exaggerated claims concerning

pollution of the air in the vicinity of Joliet and Lockport,

nor its agency, the Sanitary District, made any attempt

to analyze the air at Joliet for hydrogen sulphide. No

record whatsoever as to what amount of hydrogen sulphide,

if any, has been or may be found either in the water of

the Brandon Road Pool or in the air above Brandon Road

Pool or elsewhere along the L[llinois Waterway was ever

made hy Ilinois or the Sanitary District (Report of Spe-

cial Master Lemann, 37). On the other hand, numerous

witnesses testified that it would be utterly impossible for

a sufficient concentration of hydrogen sulphide to be pres-

ent in the air above the Illinois Waterway which would

or couid be detrimental to the health of individuals en or

near such Waterway and thus constitute a menace to

health (Dr. Enzer, R. 2173; Dr. Krumbiegel, R. 2198-2199

and 2188; Howson, R. 1948; Nichols, R. 3131-3132).

‘

The evidence is clear that hydrogen sulphide diffuses

very rapidly in the air (Dr. Krumbiegel, JA-I, 509, 562;

Dr. Enzer, R. 2168, 2174, J'A-I, 548, 551; Dr. McNally, JA-I,

492). Dr. MeNally@estified that at 500 to 1000 feet away

from the point of origin, hydrogen sulphide would diffuse

into the air many thousand times (R. 2673, JA-I, 492;

Report of Special Master Lemann, 38).

that none of the ailments or illnesses complained of was due to -

hydrogen sulphide from the Illinois Waterway.

We submit that the record conclusively establishes that

none of the ailments or illnesses complained of by the

Joliet witnesses was due to the hydrogen sulphide from the

Illinois Waterway. Mueblberger in testifying to the symp-

toms of sub-acute hydrogen sulphide poisoning stated ‘‘they

are symptoms of irritation, irritation of the mucus sur-

faces, primarily those of the eyes which result in a burn-

ing sensation of the eyes; * * *”? (Italics ours—R. 2791,

JA-I, 297).

Dr. Mohlman testified that at the Sanitary District“of

Chicago they ‘‘had times when the operating of the hydro-

gen sulphice did result in some sickness and effect on

the eyes of the men working there, and that condition does

not apply now, but it did happen’? (R. 1917, JA-I, 219-

220). Mohlman further testified that when the old West

Side plant first started up hydrogen sulphide in the en-

closed operating gallery did affect their eyes (R. 1917,

JA-I, 219-220).

According to the above testimony of Muehlberger, toxi-

cologist, called by the State of Illincis, one of the first

effects of hydrogen sulphide on the humun system would

be to attack the mucus membrane of the eyes causing

irritation and a burning sensation. Mohlman, sanitary

expert for the Sanitary District, likewise testified that the

only case of illness that he knows of to workmen caused

‘

’

;

by hydrogen sulphide gases in the plants of the. Sanitary

District was in the old operating gallery of the old West

Side plant when in an enclosed space the hydrogen sulphide

gas irritated the eyes of the workmen.

It is significant that not a single witness at Joliet tes-

tified to suffering from a burning-sensation of the. eyes &

or of any irritation of the eyes. Had the various ail-

ments and illnesses testified to by the Joliet witnesses,

such as nausea, headaches, inability to find sleep easily,

loss of appetite, and the like, been due to hydrogen sulphide

_ gas, it is clear that such gas in concentrations sufficient to

eause the ailments complained of would also have been

sufficient to have caused irritations of the eyes in at least

some of the cases. :

10.. The records in the office of the United States District

) Engineer at Chicago, Illinois, confirm the conclusion

that the Illinois Waterway constitutes no menace to

the health of persons residing, working or traveling

near or on such waterway.

At the request of the Special Master, the United States

District Engineer’s office at Chicago, Illinois, prepared a

statement, dated February 3, 1941, showing the amount of

' time lost from work during the years 1938, 1939 and 1940

through illness and injuries by male employees of the

United States War Department in the Chicago District:

Average

) Days sick leave per 305 work days

. Chicago District office... 2.22 5.65 5.74

j Joliet area........................ 2.94 5.46 _ 4.88

Calumet Harbor and

j Blue Island area.......... 2.69 5.97 3 4.58

| Peers ate“ 2.34 2.43 3.83

This exhibit shows that the total number of days’ ab-

sefice on sick leave in the Joliet area was greater in 1939 _

- 4

than in 1938, but there was a similar increase in the Chicago

District office and in the Calymet Harbor-Blue Island area

in the year 1939 as compared with 1938. This demonstrates |

* conclusively that the increase in days of absence on sick

leave at Joliet during 1939 was not due to any special con-

- ditions prevailing at Joliet. Moreover, the percentage of

days sick leave in the Joliet area in 1940 was less than in |

the Chicago District office during 1940. Only in the Peoria

area does the totat-number of days of absence on sick °

leave seem to be substantially less than either in the Chi-

cago District office, inthe Joliet area or in the Calumet

Harbor-Blue Island area. Cele

The conclusion to be drawn from the statement dated

February 3, 1941, submitted to the Special Master showing |

the record of absences on sick leave and injury, is that the

Illinois Waterway was and is not responsible for any illness

or ailments resulting in sick leave on the part of the male

, employees of the United States District Engineer’s office at |

Joliet by reason of any special conditions prevailing at

Joliet, Illinois.

The Special Master in his Report, at pages 20 and 21,

comments on the above figures and also reaches the con-

clusion that the Illinois Waterway does not constitute any

menace to the health of persons residing or working

along or on the said Waterway at Joliet.

{

)

11. The medical testimony with respect to the effect of |

the-actual condition of the Illinois Waterway on the )

health of the inhabitants of Joliet and Lockport, con- )

clusively establishes that the Illinois Waterway has

not and does not now constitute a menace té the health

of such persons. ’

(a) The record establishes that the Illinois Waterway has }

not in the past and does not now constitute a menace to health. )

The medical experts called by the State of Illinois and )

the opposing Great Lakes States were divided in their —

61 r

al ,

opinions and conclusions concerning the effect of the actual

condition of the Illinois Waterway on the health of the per-

sons working pn or near or residing near such Water-

way. Among Wjtnesses who testified for the opposing

Great Lakes States. on the health question were Doctors

Enzer, = a wir Perkins, McNally and “Moore.

as 7

1. Dr. Norbert Enzer.

Dr. Enzer testified that in his opinion any odors eman-

ating from the Illinois Waterway at any season of the year

would not constitute a menace to the health of the people

of Joliet or other communities along the Illinois‘Waterway

who inhale such edors (R. 2148, 2149, JA-I, 538-539).

Dr. Enzer fufther stated that the Illinois Waterway

does not constitute in any.sense an actual menace to the

health of the inhabitants.at Joliet and Lockport inasmuch

as such Waterway is not used as a source of domestic water

supply and is not used for bathing or other recreational

purposes at Lockport (R. 2149-2150, JA-I, 539). Dr. Enzer

stated further that such Waterway would‘not constitute

a menace by reason of any airborne diseases from a struc-

ture of fhat.nature and that at the most one might suffer

discomfort or annoyance from an odor to which one might

not be accustomed (R. 2150-2151, JA-I, 539-540).

He was of the opinion that the present conditions along

the Illinois Waterway would not be materially improved

from a health standpoint by an increase in the present

« diversion of 1500 c. f. s. to 5000 c. f. s. plus.domestic pump-

age (R. 2152-2153; 2166-2167, JA-I, 540-541, 547). ~

Dr. Enzer assumed in his opinion that the water was

“heavily polluted and heavily filled with bacteria and the

like (R. 2158-2160, JA-I, 543-544). Dr. Enzer disagreed

with the opinion expressed by Dr. Frederick, Health Com-

missioner of Joliet, with respect to the spreading of disease

from the sewage in the Canai by insects, flies and-the like

(R. 2152, 2162, JA-I, 540, 545-546). | “

Dr. Enzer also testified that in his opinion it would be

utterly impossible for concentrations of hydrogen sul-

phide sufficient to be harmful or constitute a menace to

health to be present on or along the Illinois Waterway (R.

2173-2174, JA-I, 551). Dr. Enzer stated that he had been

to Mt. Clemens, Michigan, and French Lick Health Re-

sorts where the hydrogen sulphide content in the water

and the air is very high and that those are places where

people go for health purposes (R. 2175-2176, JA-I, 552;

neh of Special Master Lemann, p. 36).

2. Dr. Edward R. K rumbiegel.

Dr. Krumbiegel, Health Commissioner of the City of

Milwaukee, a witness for the opposing Lakes States, tes-

tified that in his opinion no odor emanating from the IIli-

nois Waterway in the regions of Joliet or Lockport direct-

ly and solely of itself is the cause of any disease in the

people living along the Waterway (R. 2179, JA-I, 504) and

that the Illinois Waterway does not constitute an actual

menace to the health of the inhabitants of Joliet or Lock-

port at any time of the year (R. 2180, JA-I, 554).

Dr. Krumbiegel was of the opinion it would—be diffi-

cult to conceive of this Illinois Waterway giving off so

much hydrogen sulphide as to fause illness in the people

living along the course of the Waterway (R. 2186, 2198-99,

JA-I, 557, 562). It was his judgment that if you exclude

the possibilities of ths water of the Illinois Waterway

being used for drinking or bathing, there would be no

potential menace from the presence in the stream of un-

treated or partially treated sewage (R. 2190, JA-I, 558).

He testified further that he knew of no figures of any ex-

perience as to epidemics having been caused solely by

hydrogen sulphide in the air and that he knew of no re-

corded cases indicating that the health experience, in

health work, where illnesses among a substantial number

of people, had been traced solely to hydrogen sulphide

;

"ca

0 EGNOS Gigi ae:

63 o

in the air (R. 2194, JA-I, 560). He then stated that in

connection with this problem, when one speaks of nau-

sea, loss of appetite and things of that type, one is speak-

ing of symptoms which are not open to proof of any kind

and that one could say he had a terrific headache and no

one in the world could prove or disprove whether he did or

did not have that headache; and that if a person vomited

today and didn’t vomit after today, one could not say he

was sick, but if one vomited evcry day it might produce

serious results (R. 2195, JA-I, 560). He concluded then

that the present conditions along the Illinois Waterway

did not constitute a real and immediate menace to the

health of the people working thereon or residing nearby

(R. 2198, JA-I, 561).

Dr. Krumbiegel testified that hydrogen sulphide dif-

fuses immediately info the atmosphere and people could

develop symptoms from hydrogen sulphide only if there

were enough hydrogen sulphide to affect them and that

would vary with the individual (R. 2193, JA-I, 559); for

example, some people might find the fecal material of cows

very obnoxious and yet millions of farmers liye in and

aypund such fecal material daily (R. 2193). \

3. Dr. Edwin B. Gute.

Dr. Edwin B. Gute of Milwaukee, Wisconsin, Health

Commissioner and Director of Scho Hygiene of the Vil-

lage of Fox Point, Wisconsin, an irector of School

Hygiene of the Village of White Fish Bay, Wisconsin,

testimony was the same as Drs. Enzer and Krumbiegel (R.

2209-2211, JA-I, 565; Report of Special Master Lemann,

pp. 36-37). t

4. Dr. James E. Perkins. >

Dr. James Eliab Perkins, Director of the Division of

Communicable Diseases of New York State Department

of Health, testified that in his opinion an additional diver-

~~ |. 2

sion of 3500 c. f. s. would not decrease the amount of

typhoid gertas present in the water and that there was a

possibility that they might even increase (R. 2468, JA-I,

523) and that the only communicable diseases in the Wa-

terway would be typhoid and bacillary dysentery (R. 2468,

JA-I, 523) and that individuals could only contract these

diseases by swallowing water from the Canal (R. 2469, JA-

1, 524). He stated that an adequate concentration of chlor-

ine would kill the typhoid bacillus (R. 2469) and that flies

are not of importance in the transmission of typhoid germs

from the Canal (R. 2470, JA-I, 524) since thé house fly

is the only one who transmits typhoid fever but that this

type of fly does not light upon the water, bunt the house

fly might carry germs from open privies and open pits

filled with fresh excreta from men and carry them to mess

kitchens and mess halls, ete. (R. 2470-2471, JA-I, 524-525).

Dr. Perkins disagreed with the opinion of Dr. Fred-

erick, Health Commissioner of Joliet, that the scum on |

- et

the Waterway dries and might be carried away by winds

for miles (R. 2471, JA-I, 525) since typhoid bacillus js

readily destroyed by sunlight and drying and under the

circumstances present at Joliet you would not have any |

live typhi bacilli (R. 2471, JA-I, 525). Dr. Perkins tes. ‘

tified that a polluted stream containing hydrogen sulphide }

would not be a menace to the health of the surrounding

country because in his opinion a polluted stream could not |

give off sufficient hydrogen sulphide (R. 2476, JA-I, 526).

He stated that you could have enough hydrogen sulphide

~—o give a very distinct odor and yet have it below the }

amount necessary to cause toxic symptoms (R. 2480, JA-I, 7

027). Dr. Perkins in response to questions by the Master

testified that in his experience he had never heard of germs

being wafted through the air from a polluted stream (im |

2491, JA-[, 530) and that the only possibility of health +

trouble from this stream would be either by drinking the

water or swimming in it (R. 2491, JA-I, 530).

)

: 65

He disagreed with testimony given by some of the doc-

tors, at Joliet that there were streptococci germs in this

water and that trouble could be experienced with nose and

throat and sinus ailments (R. 2491, JA-I, 530).

5. Dr. William D. McNally.

Dr. William D. MeNally, a toxicologist, called by the

opposing Great Lakes States testified that in his opinion

the Illinois Waterway, as the result of receiving untreated

or partially treated sewage, is ngt a menace to the health

of the inhabitants of the communities of Joliet and Lock-

port or the people working or sleeping on boats over such

Waterway, from the presence of hydrogen sulphide (Re

2669, 2700, JA-I, 491). Dr. MeNally testified that at 10@

or 500 or a thousand feet away, the concentration of hy-

drogen sulphide gas would be diluted many thousand times

(R. 2672, JA-I, 492) because it diffuses in the air very

rapidly (R. 2673, JA-I, 492). He stated that there are no

recorded cases of epidemics of illness from hydrogen sul-

phide breathing from open waterways like the Illinois

Waterway (R. 2678, JA-I, 494) and that the literature of

toxicology says nothing about deleterious effects of hydro-

gen sulphide from the Waterway (R. 2679, JA-I, 494).

Dr. McNally further testified that automobiles give off

a poisonous gas and that a 1% concentration of carbon

monoxide gas would kill within 2 or 3 minutes (R. 2699,

JA-I, 501) and that the characteristics of carbon mon-

oxide and hydrogen sulphide are similar in reactions and

they are very toxic gases (R. 2699, JA-I, 501) and that

a sufficient quantity of hydrogen sulphide could be intro-

duced into the air from railroad trains to cause discol-

oration of painted houses located some distance away (R:

2702, JA-I, 501). ‘

6. Dr. Josiah J. Moore. =

Dr. Josiah J. Moore, a physician and pathologist of

Chicago, a witness for the opposing Great Lakes States,

was of the opinion that any bacteria from the scum on

the surface of a polluted waterway, or germs or bacteria

present in the scum on the sides or wall of a polluted

waterway would not be blown away in such a way as to

cause 4 hazard, producing disease to people along the Wa-

terway (R. 2652, JA-I, 531). He stated that no epidemic

could occur in a community adjoining a Waterway con-

taining untreated or partially treated sewage as a result

of the transmission of germs or bacteria from such a wa-

terway by air (R. 2652, JA-I, 531). Dr. Moore testified

that in his opinion from a bacteriological study of an an-

alysis of the air in the vicinity of Joliet and Lockport along

the Illinois Waterway as indicated by tests shown on

Opponents’ Exhibit 7, that the air in that vicinity would

constitute no danger to the health of the people along the

Waterway (R. 2653, JA-I, 531-532). He stated there was

no basis for any suggestion that germs from this water-

way might cause streptococcic infections in the throat (R.

2657, JA-I, 532) or nose (R. 2658, JA-I, 532) and that any

such infection would be due to contact carriers, one in-

dividual to another and not by water (R. 2658, J A-I, 532).

He was of the opinion that one could not get streptococcus

sore throat from sewage odors and you could not get it by

living on the banks and breathing the air (R. 2659-2660,

JA-I, 533). He stated there was no source of danger

from B. coli since in its. proper place it is not pathogenic

and if there were any other organisms in the water con-

taining B. coli we could drink water and simply increase

the number in our own intestinal tract without causing a

disease in the intestinal tract (R. 2768-2769, JA-I, 534) ;

and the only danger from B. coli would be where they had

gotten out of the intestines of the patient or by penetra-

tion of the skin (R. 2770, JA-I, 534); but one could not

get B. coli by breathing the air over this Waterway (R.

2771, JA-I, 535).

(b) The conclusions of the Medical Experts called by the

State of Illinois with respect to conditions which they suggested

should obtain at Joliet were based upon generalities and Stan-

dards which do not exist in any other Industrial Community in

America.

1. Professor Anton J. Carlson.

The chief medical expert on the health question for TIli-

nois was Dr. Carlson. He inspected the Illinois Waterway

on October 13, 1940 and had read much of the testimony

at Joliet. He testified that in his opinion ‘‘the present

condition is more than a menace to health; it is inimical

to health’’ and he stated that the factors he would con-

sider in determining what constituted an actual menace

to health means that conditions exist in the Waterway

that through accident or ordinary course of human events

can lead to injury to health (JA-I, 284-285). He was of

the opinion that one does not have to prove actual injury

Lo health but that you have to prove that conditions exist

there which through accident or ordinary course of human

events may result in injury to health. Dr. Carlson further

indicated his view that there was an aciual menace from

dysentery bacilli, from typhoid bacilli and from the amoeba

of dysentery. It was his view that water does not have

to be used for drinking or cooking to constitute such a

menace and it does not have to occur either for 10 or 15

years, but it is still a menace (JA-I, 284). The fact that

the present communicable disease rate in Joliet is no

higher than in Joliet is of no importance whatsoever in de-

determining whether the Canal is a menace to health. He

was of the opinion that either they have been lucky or

that the medical statistics were not what they were sup-

posed to be (R. 2891, JA-I, 285). It was also his view

that the Waterway has been a menace to health since 1934

but that the menace has now been increased but he agreed

that if the diversion from Lake Michigan were restored

to 5,000 ¢. f. s. there would still be a menace to health,

but that it would be less (R. 2980, JA-I, 289). Dr. Carl.

son likewise agreed that carbon monoxide from automo-

biles in the City of Chicago is a constant detriment to the

health of the people residing therein (R. 2975-2978; JA-I,

288, See also: Report of Special Master Lemann, pp. 41-43),

2. Professor Andrew C. Ivy.

Professor Ivy was of the opinion that smoke, dust,

noise, stray dogs, streams containing untreated sewage,

pollution of air from any source, and the like all consti-

tuted a menace to health (R. 3037, 3052, 3058, 3060-61, 3075,

JA-I, 306, 315, 318, 319) and should be abated. He was

further of the opinion that an increase in the amount of

the diversion would not eradicate the menace but would

only decrease it (R. 3052-3053, JA-I, 315). He stated that

the public health of Chicago was good insofar as com.

municable diseases, infant mortality, typhoid are concerned

(R. 3070, JA-I, 324) but that due to smoke, dust, noise and

other factors of that sort, the public health of Chicago is

not so good (R. 3071, JA-I, 324; Report of Special Mas-

ter Lemann, pp. 43-45).

3. Professor Hugh A. McGuigin.

Professor McGuigin was of the Opinion that there may

be conditions which are detrimental to health at Joliet

which are unknown because the causes are unknown (R.

3087, JA-I, 330) and that if you do not know the cause you

cannot eradicate it but that in many cases one could ameli-

orate it (R. 3088, JA-I, 330). He admitted that there were

certain deterrents operating and producing ill health among

people the causes of which are not known but that this

condition is universal and not confined to Joliet (R. 3088,

JA-I, 330). He admitted that if a large number of people

were ill in a community the death rate would be higher

because of the reduced resistance of ill people to most dis-

eases (R. 3089, JA-I, 330; Report of Special Master Le-

mann, p. 45). |

—_— ae ST “ae ae 4

4, C. W. Muehlberger.

Mr. Mueblberger testified that hydrogen sulphide in

dilute quantities acts as an irritant; it irritates the mucous

membranes, primarily those of the eyes, causing a burning

sensation of the eyes, irritation of the nose and throat (R.

2791, JA-I, 297), while in high concentrations there is a

nervous depression resulting in symptoms of drowsiness,

stupor, coma, finally causing death (R. 2788, JA-I, 295).

He was of the opinion that people are entitled to a decent

place to live, comfortable surroundings where the air they

breathe is perfectly good healthy air and that anything

which can be overcome which contaminates the air so that

people aren’t in a good sound state of health is a menace

(R. 2810, JA-I, 303). He was unable to cite any specific

instance of an individual having been overcome by hydro-

gen sulphide gas in the open from a waterway polluted

with sewage (Report of Special Master Lemann, p. 40).

He knew the Drainage Canal smelled prior to 1939 but he

never noticed any irritation of his eyes or throat, or didn’t

notice them, prior to 1938 (R. 3011, JA-I, 303; Report of

Special Master Lemann, p. 40).

12. The Record Establishes that the State of Illinois has

never Seriously Regarded the Illinois Waterway as a

Menace to the Health of the Inhabitants of the Com-

plaining Communities.

As has been indicated elsewhere in this Brief, the IIli-

nois Waterway has been a polluted stream for more than

forty years and it has given off odors during all of that

time and complaints concerning its condition have been

made from time to time for more than twenty years. It

is significant that af Ho time has the State Board of

Healti of Illinois or the Health Commissioners of Joliet

ever officially declared that the Illinois Waterway con-

stituted a menace to health or that an emergency existed

by reason of the condition of the Illinois Waterway at

Lockport and Joliet. ,

The Special Master points out that no representative of"

the Illinois State Board of Health or any Sanitary officer

of the State of Ilinois appeared before him to testify con-

cerning health conditions (Report of Special Master

Lemann, pp. 45-46). The Chief of the Illinois:State Water.

way Survey, Dr. A. M. Buswell testified for the Respond-

ent Great Lakes States in support of their contentions

concerning their ameliorating measures but he was not

asked concerning health issues.

13. The proper test of a ‘‘menace to health’? is the effect

of the conditions complained of upon persons in nor-

mal health and not the effect upon sickly persons or

those below average health.

Illinois complains that the Special Master failed to ac-

cept the proper definition of “‘menace to health’’ as pre-

sented by the testimony. We respectfully submit that

the conclusion of the Special Master that ‘the test is the

effect of the acts complained of upon parsons of ordinary

sensibilities and in normal health’’ is correct and that

the effect of the odors upon invalids or persons of less

than average health could not be accepted as any test

of health menace. Moreover the record establishes con-

clusively thet the ailments complained of by the witnesses

who testified at Joliet are trivial, inconsequential, transient

and such as are common to all persons everywhere and

that such ailments have not resulted from, or been caused

by, the Minois Waterway. The witnesses who testified

at Joliet were, with one or two exceptions, healthy, normal

persons, most of whom inclined to overweight. As the

Speciai Master points out, even in private cases the test

has never been the effect of the acts complained of on

sickly, invalid or neurotic individuals, |

SD rrr ree

2 os eee

‘PART FIVE.

A. MISCELLANEOUS MATTERS.

1. Illinois’ Contention that No Measurable Harm Will

be Done the Great Lakes States by the Increased Di-

version from Lake Michigan, Suggested by the Modified

- Petition of Illinois, is Wholly Without Merit.

It is settled that the illegal diversion of water from

Lake Michigan by Illinois and its agency, the Sanitary

District of Chicago, has substantially lowered the levels

of the Great Lakes and such lowering of.the natural levels

of the Great Lakes has caused great continuing damage

to the respondent Great Lakes states and their citizens

and that the restoration of normal lake levels and the

termination of such continuing damages to the respondent

Great Lakes states and their citizens will require a period

of fire years after the termination of the illegal diversion

of water from Lake Michigan by Petitioner and its agency,

the Sanitary District of Chicago.

These matters are all severally res adjudicata under the

decisions and decree of this Court (Wisconsin et al v.

Illinois et al, 278 U. S. 367; Decree of April 21, 1930, 281

U. S. 696).

he modification of the decree as requested by the peti-

tioner State of Illinois would, if granted, postpone the

restoration of normal lake levels and the termination of

these continuing damages to respondents and their citi-

zens for a period of seyeral years. During most of the

navigation season of 1940 the draft of vessels carrying

the lakes and lower lake ports was very much restricted

-»

72°

greatly reducing the loads which could be carried by ves.

sels carrying ninety per cent of this traffic, in comparison

with the loads which could have been carried but for the

lowered lake levels caused by the diversion through the

Chicago Drainage Canal.

The lowering effect which would result from the tem.

porary increased diversion from Lake Michigan, as re-

quested in the modified petition of Tinois, would cause

great and irreparable damage, regardless of whether such

lowering would be one-third of an inch, or one-half of an

inch, or one inch, inasmuch as any slight lowering of lake

levels of even a fraction of an inch will result in great

damage to the respondent Great Lakes states and ‘their

citizens. (Report of Special Master Hughes (1927), pages

114-115- See alsorthe opinion of Secretary of War Stim-

son denying a request for increased diversion which opin-

ion is quoted in part in the report of Special. Master

Hughes, page 62. Secretary Stimson points out tht every

drop of water taken at Chicago tends to nullify costly im-

provements made by Congress, as well as inflict a heavy

loss upon navigation interests. Wisconsin et al v. Illinois

et al, 278 U. S. 367, 409). ‘

And as Special Master, Honorable (now Chief Justice)

Charles Evans Hughes pointed out the damages and losses

to the respondent Great Lakes states and their people are

greatest when the mean water levels on the Great Lakes

are the lowest. (Report of Special Master Hughes (1927)

page 116). eh

It is clear the court considered the matter of damages to

the opposing Great Lakes States by an increase in diver-

ston at Chicago to be closed and not open to consideration

again. Illinois raised the issue of damages in ‘+s petition,

this issue was controverted in the return of the respondent

Great Lakes states, and the Court did not include this

° + “7

ene FLT GP. TE me oe Oy ree ge eer

aaa

issue among the subjects of inquiry by Special Mast

Lemann, thereby closing the door to a further discussion

of this subject. ’

2. The Special Master’s Recommendation for a Decree

dismissing the petition and modified Petition of the

State of Illinois with costs against the State of Illinois

should be affirmed.

The record in this case establishes that the Special Mas-

ter’s Recommendation for a Decree should be affirmed. It

is clear that costs, including the fees and disbursements

of the Special Master, should be taxed against the State

of Illinois. ;

On the previous decision in these causes, the court found

that Illinois and the Sanitary District had for many years

mantained an unlawful diversion in contravention of the

rights of tHe states of Wisconsin, Minnesota, Ohio, Penn-

sylvania, Michigan and New York, and that through such

illegal action on the part of Illinois and the Sanitary Dis-

trict of Chicago, the opposing Lake States had sustained

great damages to their navigation and commercial inter-

ests, to structures, to the convenience of summer resorts,

to fishing and hunting grounds, to public parks and other

interests, and to riparian préperty in general (Wisconsin

et al v. Illinois et al, 278 U. S. 367, at 407-9). The re-

spondent Great Lakes States were compelled to prosecute

long and expensive litigation to vindicate their rights and

the rights of their citizens. There is no instance of such

vast injuries being suffered with such great patience as

has been exhibited by the respondent Great Lake States

and their peoples in connection with this controversy. All

other recourse failing, they were compelled to resort to

litigation before thigsCourt. The right of the states of

Wisconsin, Minnesota, Ohio, Pennsylvania, Michigan and

New York to relief has been sustained; and we regard it

‘

as clear under the decisions of this Court that said Lake

States are entitled on the record to a recovery of their

costs (including the fees and disbursements of the Special

Master) from the State of Illinois. (North Dakbta v.

Minnesota, 263 U. 8. 583; Wisconsin et al. v. Illinois et al,

281 U. S. 200; 289 U. §. 395, 77 L. Ed. 1292.) Moreover,

Illinois and its agency, the Sanitary District of Chicago

should be compelled, in all’ fairness, to reimburse the Lake

States for all expenses by way of expert witness fees, and

the like, from the sum of $12,500.00 which was realized

as additional profit feom the 10 day flushing test to which

the Lake States agreed (Report of Special Master Lemann,

p. 82). °

D gecesi

We respectfully submit that upon the whole record here-

in the recommendation of the Special Master that a decree

be entered dismissing the petition and the modified peti-

tion of the State ef Illinois for modification of the Decree J

of April 21, 1930 and taxing costs (feluding fees and

disbursements of the Special Master) against the State

} of Illinois, should be affirmed. |

Respectfully submitted,

Joun E. Martin,

Attorney General of Wisconsin,

SIRE

J. A. A. Burnguist,

Attorney General of Minnesota,

THomas J. Hersert,

Attorney General of Ohie,

: Ciauve T. Reno,

Atterney General of Pennsylvania,

Harrincton Apams,

Deputy Attorney General of Pennsylvania,

HersBert J. RvusHTon,

Attorney General of Michigan,

James W. WILLIAMs,

Assistant Attorney General of Michigan,

Joun J. Bennett, Jr.,

Attorney General of New York,

, Trmoruy F. Conan,

Assistant Attorney General of New York,

Hersert H. Navsoks,

Special Assistant to the Attorneys General.

Filed April 30, 1941, :

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.