Appendix — Milwaukee v. Illinois

IN THE [Micie aoe;x

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. £9 -40 8

City OF MILWAUKEE, THE SEWERAGE

COMMISSION OF THE CiTy OF MILWAUKEE,

AND THE METROPOLITAN SEWERAGE COMMISSION

Or THE COUNTY OF MILWAUKEE

Petitioners,

Vv.

PEOPLE OF THE STATE OF ILLINOIS AND PEOPLE

OF THE STATE OF MICHIGAN,

Respondents.

Appendices to the Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Seventh Circuit

RICHARD W. CUTLER

ELWIN J. ZARWELL

SAMUEL J. RECHT

ANDREW M. BARNES

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 277-5000

Of Counsel: Attorneys for Petitioners

QUARLES & BRADY the Sewerage Commission

780 North Water Street of the City of Milwaukee

Milwaukee, Wisconsin 53202 and the Metropolitan

Sewerage Commission of

and the County of Milwaukee

MICHAEL J. MCCABE JAMES B. BRENNAN

735 North Water Street Room 800, City Hall

Milwaukee, Wisconsin 53202 Milwaukee, Wisconsin 53202

(414) 278-2601

September 11, 1979 Attorney for Petitioner

City of Milwaukee

PAM PIM Wii, Vel G

FILED’ }

SEP 11 1979 |

Appendices to Petition for Writ of Certiorari

To the United States Court of Appeals

For the Seventh Circuit

INDEX

Illinois v. Milwaukee, 599 F.2d 151

CR, STO s kk eA cw ka be Ree

Unpublished order dated April 26, 1979

accompanying /ilinois v. Milwaukee, 599

Pa ee CPR ON BOTs go seek cbeuscecus

Order dated June 14, 1979 denying rehearing

in //linois v. Milwaukee, 599 F.2d 151

Coes NOTE es Shes wet eee sntawanas

Judgment Order dated November 15, 1977

in Illinois %. Milwaukee, N.D. Il.

MMII ote oe”

Stipulation of the Parties dated November 14,

1977 in Illinois v. Milwaukee, N.D. Ill.

DOM, TERRES whew can dbae shaw aes ee ee

Illinois v. Milwaukee, N.D. Ill. No. 72-C-1253

(‘‘Findings of Fact and Conclusions of Law,”’

July 29, 1977) rev’d in part and aff’d in part

eo re ae ee rarer

Illinois v. Milwaukee, 366 F.Supp. 298

SOR es We TIS sino ds AE AOA veka eos

Illinois v. Milwaukee, 4 E.R.C. 1849

ee EE oko wha k CARS e's ws as

Illinois v. Milwaukee, 406 U.S. 91 (1972) ......

Pertinent Provisions of the Federal Water

Pollution Control Act, As Amended ........

B-1

C-1

E-1

A-l

iu the

United States Court of Appeals

Sor the Seventh Cirrnit

No. 77-2246

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-A ppellee,

and

PEOPLE OF THE STATE OF MICHIGAN,

Intervening Plaintiff-A ppellee,

Vv.

Ciry Or MILWAUKEE, THE SEWERAGE COMMISSION OF

THE CiTy OF MILWAUKEE, and THE METROPOLITAN

SEWERAGE COMMISSION OF THE COUNTY OF

MILWAUKEE,

Defendant-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 72-C-1253—John F. Grady, Judye.

ARGUED May 24, 1978—SUBMITTED AFTER SUPPLEMENTAL

BRIEFING OCTOBER 12, 1978—DECIDED APRIL 26, 1979

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge,

and HARPER, Senior District Judge.*

* The Honorable Roy W. Harper, Senior District Judge of

the United States District Court for the Eastern and Western

Districts of Missouri, is sitting by designation.

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TONE, Circuit Judge. The State of Illinois filed this ac-

tion under the federal common law of nuisance to enjoin

the City of Milwaukee and the Sewerage Commissions of

the City and County of Milwaukee! from discharging

raw sewage and inadequately treated sewage into Lake

Michigan.? Illinois alleged and undertook to prove at

trial that the sewage contains pathogens, disease-causing

viruses and bacteria, which are transported by currents

into parts of the lake that lie within Illinois, where they

present a substantial threat to the health of Illinois

residents, and also that the sewage contains nutrients

that accelerate eutrophication of the lake. The State of

Michigan intervened as a plaintiff on the eutrophication

issue only. After a four month trial, the district court

found that plaintiffs had proved their allegations and

entered a judgment requiring defendants to cease dis-

charging raw sewage and to treat sewage before dis-

charging it in compliance with effluent limitations more

stringent than the minimum limitations imposed pur-

suant to the Federal Water Pollution Control Act, 33

U.S.C. § 1251, et seg. Defendants appeal, raising the

issues of (1) whether the relief available in an action

1 For M ge nigacon purposes, the two commissions may be

regarded as one. See also n. 33, infra. The chief admin-

istrative officer for both is the same man; he also serves as the

secretary for both commissions. The county commission has no

employees other than the chief administrative officer and

secretary referred to and uses the staff of the city commission

when necessary. [Tr. 110-113.] In this opinion we differentiate

between the two only when the difference is significant.

Scene references in brackets are included in the slip opinion

or the convenience of judges, counsel, and others who have

access to the record but will be omitted from the opinion as it

will appear in the Federal Second Reporter.]

* Illinois also named three other Wisconsin cities as defen-

dants in this case: Kenosha, Racine, and South Milwaukee.

They are not involved in this appeal.

After judgment was entered the County of, Milwaukee

moved to intervene as an indispensable party under Rule

1%b), Federal Rules of Civil Procedure (Fed. R. Civ. P.). The

motion was denied; this court affirmed, without written

oe, The Supreme Court denied certiorari. 47 U.S.L.W.

3583 (1979).

A-3

based on the federal common law of nuisance is greater

than that available under the federal statute, and (2)

whether the evidence in this case is sufficient to 2 iy

the relief granted. As to the first question, we hold that

the statute does not limit the relief that may be granted;

as to the second, we hold that the evidence is sufficient

to support only some of the relief granted and therefore

affirm in part and reverse in part.

This litigation began with Illinois’ petition for leave to

file an original action in the Supreme Court of the United

States, which was denied, Jllinois v. Milwaukee, 406

U.S. 91 (1972). Illinois then filed suit in the United

States District Court for the Northern District of Il-

linois. Defendants’ motions to dismiss for lack of in per-

sonam jurisdiction and improper venue were denied,

Illinois v. Milwaukee, 4 E.R.C. 1849 (N.D. Ill. 1972);

later, defendants’ motions to dismiss for failure to state

a claim on which relief could be granted were also

ora Illinois v. Milwaukee, 366 F.Supp. 298 (N.D. Ill.

In due course the case proceeded to trial, at the con-

clusion of which the judge orally and extemporaneously

announced his findings of fact and conclusions of law.

The facts and the relief granted will be described later,

as they become pertinent to the issues discussed.

Defendant-appellants’ position is supported by the

briefs of three amici curiae: the State of Wisconsin, the

National League of Cities, and the United States Con-

ference of Mayors. In addition, the United States has

filed a brief amicus curiae in which it takes no position

on the merits but supports the arguments of Illinois and

Michigan that the federal common law of nuisance is not

preempted or limited by federal legislation.

After oral argument this court ordered supplemental

briefing addressed to (1) the elements required to be

proved to establish a claim for a common law nuisance,

(2) identification of particularized findings of the dis-

trict court considered material to those elements and

record references to the evidence supporting those find-

ings, and (3) identification of evidence in the record

A-4

supporting the reasonableness and necessity of the relief

granted by the trial court. The parties filed extensive

supplemental briefs, and each side subsequently filed a

reply to the other’s a brief, as a consequence

of which submission of the case was delayed until Oc-

tober 1978.

I.

Objections to the Forum

Defendants raise three arguments that may be broad-

ly characterized as objections to the forum. First, defen-

dants contend that they have committed no “tortious act

within” the State of Illinois as that phrase is used in the

Illinois “long-arm” statute, § 17 of the Illinois Civil Prac-

tice Act, lil. Rev. Stat. ch. 110, § 17 (1977), and therefore

service of process was ineffective and the United States

District Court sitting in Illinois could not exercise per-

sonal jurisdiction over them. See Rule 4(e), Federal

Rules of Civil Procedure (Fed. R. Civ. P.). Second, defend-

ants contend that their contacts with Illinois are insuf-

ficient to meet the minimum required by International

Shoe v. Washington, 326 U.S. 310 (1945). Third, defen-

dants contend that even if the court had personal

jurisdiction, venue was improper. Judge Bauer, then a

district judge, rejected these contentions in denying

defendants pretrial motions to dismiss in Illinois v.

Milwaukee, supra, 4 E.R.C. at 1850, and we do likewise.

For purposes of §17 “a tort is committed in the

place where the injury occurs.” McBreen v. Beech

eshble Corp., 543 F.2d 26, 28 (7th Cir. 1976). It seems

beyond dispute that injury to the plaintiff in this case

occurred in Illinois. Cf. Ohio v. Wyandotte Chemicals

Corp., 401 U.S. 493, 500 (1971).

As to the second contention, the critical issue is

whether it is fair and reasonable to require the defen-

dants to defend in Illinois. See Kulko v. Superior Court

of California, 436 U.S. 84, 92 (1978); Telco Leasing, Inc.

v. Marshall County Hospital, 586 F.2d 49 (7th Cir.

A-5

1978).3 Each year defendants dump into Lake Michigan

millions of gallons of pathogen-containing sewage, which

the district court found is sometimes carried into Illinois

waters and presents a substantial threat of harm to II-

linois residents. Under such circumstances, we do not

think it unfair or unreasonable to require the defendants

to defend their conduct in a federal forum located

within the State of Illinois. See Ohio v. Wyandotte

Chemicals Corp., supra, 401 U.S. at 500.

Defendants argue that venue was improper for three

different reasons: (1) the venue provision of the Federal

Water Pollution Control Act Amendments of 1972, P.L.

92-500, 86 Stat. 816, requires that the suit be filed in the

‘district where the source is located, (2) all “nuisance” ac-

tions are “local” and therefore must be filed in the dis-

trict where the source is located, and (3) all actions

against a municipal corporation are “local” and

therefore must be filed in the district where the

municipal corporation is located. The first argument is

quickly disposed of, for the venue a of the

statute is by its terms inapplicable. That provision is

relevant only to “action[s] respecting a violation . . . of

an effluent standard or limitation . .. brought under

[§ 505]. . . .” § 505(cX1). Here, plaintiff’s action is based

on the federal common law of nuisance. Therefore the

relevant venue provision is 28 U.S.C. § 1391(b), which

permits suit in either the “judicial district where all

defendants reside, or in which the claim arose... .”

Illinois v. Milwaukee, supra, 406 U.S. at 108 n.10.

Whatever may be the significance of state law in deter-

mining whether an action is “transitory” or “local” in

3 If Congress had chosen to authorize nationwide sevice of

rocess, no minimum contacts issue would be raised. See, of.

itzsimmons v. Barton, 589 F.2d 330, 333 (7th Cir. 197 ‘

Mariash v. Moriil, 496 F.2d 1138, 1143 & n. 6 (2d Cir. 1974).

Congress has not done so and Fed. R. Civ. P. 4(e) makes

jurisdiction dependent on the long-arm statute or rule of court

of the state in which the district court is held; therefore we

are required to determine whether defendants’ contacts with

Illinois are sufficient to support the exercise of in personam

jurisdiction.

A-6

other contexts,‘ we agree with the district court, Jllinois

v. Milwaukee, supra, 4 E.R.C. at 1850, that the language

in the Supreme Court’s opinion in Jllinois v. Milwaukee,

supra, 406 U.S. at 108 n.10, indicates that an action

against a municipal corporation and based on the

federal common law of nuisance may be filed, pursuant

to 28 U.S.C. § 1391(b), in either the district where all

the defendants reside or the district where the claim

arose, without regard to any otherwise applicable state

venue statutes or common law rules. In this case, the

claim arose in the Northern District of Illinois, where

the injury was suffered, and therefore venue was proper.5

II.

Effect of Federal Statutes on

Federal Common Law of Nuisance

In Illinois v. Milwaukee, supra, 406 U.S. 91, the Court

denied Illinois’ pene for leave to file an original ac-

tion under 28 U.S.C. § 1251(aX1),6 on the ground that

4 See, e.g., French v. Clinchfield Coal Company, 407 F.Supp.

13, 16-17 n. 11 (D.Del. 1976) (Caleb Wright, J.); Hasburgh v.

Executive Aircraft Company, 35 F.R.D. 354, 355 (W.D.Mo.

1964); see generally 1 Moores Federal Practice ber {[2.—1];

1368-1369 & nn. 40-41 (1978); Wright, Law of Federal Courts

158 (2d ed. 1970); Wright, Miller & Cooper, 15 Federal

Practice and Procedure § 3822 (1976).

5 There is some debate as to whether there ought to be a

uniform rule of law in federal courts governing the question

of whether an action is “local” or “transitory.” See, e.g., French

v. Clinchfield, supra, 407 F.Supp. at 16-17 n. 11; Wright

Miller & Cooper, supra, Rage at 129-130; 1 Moore's Federal

Practice, supra, at 1368-1369 & n. 40. Illinois v. Milwaukee,

supra, 406 U.S. 108 n. 10, can also be understood as resolving

this debate in favor of a uniform federal rule, at least in

federal common law nuisance actions, and as indicating that

such actions should be treated as “transitory.” Under either

interpretation of the language, § 1391(b) is applicable and

venue was proper.

6 That provision states, »

The Supreme Court shall have original and exclusive

urisdiction of: (1) All controversies between two or more

re

A-7

“States,” as used in that provision, does not include

political subdivisions. Jd. at 98. The Court also declined

to exercise its jurisdiction under 28 U.S.C. § 1251(bX3),’

since the issues raised in the complaint were governed

by federal common law, and therefore an appropriate

district court would have jurisdiction of the case under

28 U.S.C. ; 1331(a).2 After reviewing the provisions of

the Federal Water Pollution Control Act, 62 Stat. 1155,9

and other federal legislation regulating pollution of in-

terstate waters, the Court held that federal common law

had not been preempted, but noted “that new federal

laws and new federal regulations may in time B ging 9

the field of federal common law of nuisance.” Jd. at 107.

Shortly after that decision Congress adopted the com-

prehensive Federal Water Pollution Control Act

Amendments of 1972, P.L. 92-500, 86 Stat. 816. In 1977

Congress further amended the Act. P.L. 95-217, 91 Stat.

1566. Defendants concede that neither the 1972 nor the

1977 amendments preempt the federal common law of

nuisance. Wisconsin’s brief amicus curiae, however,

argues that the comprehensive statutory scheme

These the common law. The brief of the United

tates as amicus curiae argues to the contrary. Since the

issue concerns our jurisdiction, we are obliged to con-

sider it. See, e.g., American Meat Institute v. EPA, 526

F.2d 442, 448-449 (7th Cir. 1975). In addition, we con-

sider whether the statute, even if it does not preempt the

federal common law, limits the relief that may ap-

propriately be g>anted or otherwise influences the prin-

ciples to be appli .d in this action.

* That provision states, ee

The Supreme Court shall have original but not exclusive

jurisdiction of: . . . (3) All actions . . . by a State against

the citizens of another State... .

* That provision states, Bis Stes

The district courts shall have original jurisdiction of all

civil actions wherein the matter in controversy . . . arises

under the... laws ... of the United States....

* For the provisions of the statute as amended at the time of

the Court’s decision see 33 U.S.C. § 1151 et seg. (1970).

A-8

A. Federal Water Pollution Control Act

1. The Statute Before 1972

The pre-1972 Federal Water Pollution Control Act, 62

Stat. 1155, as amended, 33 U.S.C. 1151, et seg. (1970),

authorized each state, with the approval of the Secretary

of the Interior, to adopt “water quality criteria

applicable to interstate waters or portions thereof

within” the state, 33 U.S.C. § 1160(cX1) (1970), for the

purposes of protecting the public health or welfare and

no the quality of water, see 33 U.S.C. § 1160(cX3)

(1970). If any state failed to adopt acceptable water

quality criteria, the Act authorized the Secretary of the

Interior to prescribe them, 33 U.S.C. § 1160(cX2) (1970);

water quality standards prescribed by the Secretary

were subject to modification after review by a “Hearing

Board” on petition of the ee of any state affected

by the standards, 33 U.S.C. § 1160(c)\4) (1970). The Act

also provided enforcement procedures, recently des-

cribed by the Supreme Court as “cumbrous.” EPA v.

California ex rel. State Water Resources Control Board,

426 U.S. 200, 202 (1976); see also Illinois v. Milwaukee,

supra, 406 U.S. at 103 (describing the enforcement

procedures as “long” and “drawn-out”).

The procedures for abating pollution originating in

one state but allegedly causing harm in a second state

are of primary importance for our purposes. The Act

provided that upon complaint of the governor or water

assoc control agency of the second state, the

ecretary should call a conference, giving all the in-

terested parties notice of, and an opportunity to make

statements at, the conference. 33 U.S.C. § 1160(d\1), (3)

(1970). After the conference, the Secretary was directed

to prepare a report for the benefit of the state agencies

represented at the conference in which he summarized

the proceedings and discussed, among other things, the

adequacy of the measures taken to abate the pollution.

33 U.S.C. § 1160(dX4) (1970). If the measures already

taken were deemed inadequate, the Secretary was to

recommend appropriate remedial action to the water

pollution agency in the state from which the pollution

A-9

came. 33 U.S.C. § 1160Q(e) (1970). If after “at least six

months” the state agency had not taken the necessary

action, the Secretary was directed to conduct hearings

at which all the interested parties would again be given

an opportunity to make statements, this time before a

“Hearing Board.” 33 U.S.C. § 1160(fX1) (1970). If the

Hearing Board found that pollution endangering the

public health or welfare was indeed occurring and that

adequate steps toward abatement had not been taken, it

submitted its findings and recommendations “concer-

ning the measures, if any, which it [found] to be

reasonable and equitable to secure abatement of such

pollution.” Jd. The Secretary then forwarded the Hear-

ing Board’s findings and recommendations “together with

a notice specifying a reasonable time (not less than six

months) to secure abatement of such pollution” to the

poiiuters and the originating state’s water pollution con-

trol agency. Jd. If the polluter or state agency failed to

take “action reasonably calculated to secure abatement”

within the specified time, then the Secretary was

authorized to request the Attorney General to file suit to

secure abatement. 33 U.S.C. § 1160(gX1) (1970). Dis-

charges that reduced the quality of water below any

“water quality criteria” established under the Act were

subject to abatement pursuant to similar procedures. 33

U.S.C. § 1160(cX5) (1970) The Act made no provision for

private abatement suits.

It is this system of interstate water pollution abate-

ment, in combination with the discharge permit system

administered by the Army Corps of Engineers, see note

16, infra, and other federal legislation, that the Court

found insufficient to preempt the federal common law of

interstate water pollution in /l/inois v. Milwaukee, supra,

406 U.S. at 101-103, 107. |

2. The 1972 Act

Because of the inadequacies inherent in the “water

quality” approach and, among other things, the ineffec-

tiveness of the enforcement procedures described

A-10

above,'’ Congress adopted the Federal Water Pollution Con-

trol Act Amendments of 1972, 33 U.S.C. § 1251, et seg. The

1972 amendments, which we sometimes refer to herein

as the Act or FWPCA, substantially rewrote the statute,

supplementing the water quality criteria with direct dis-

charge limitations and greatly strengthening enforce-

ment procedures. Congress declared that the national

goal was to eliminate the discharge of pollutants into

navigable waters by 1985. To achieve that goal, Con-

gress established general technology-based levels of

treatment for any pollutant that is to be discharged into

navigable waters and specified dates by which those

levels of treatment are to be achieved, § 301;'! all point

sources!? except publicly owned treatment works!? must

lv See S.Rep. No. 92-414, reprinted in [1972] U.S. Code Cong.

& Ad. News 3668, 3671-3674 hig see also Note, “Federal

Common Law in Interstate Water Pollution Disputes,” 1973

U. ill. L. F. 141, 148-144 & nn. 12-14.

'! Sections of the 1972 Act (P.L. 92-500, 86 Stat. $16) are

referred to in this opinion by their designations in the

Statutes at Large. The parallel United States Code citations

for the sections to which reference is made are as follows:

Section 101 = 33 U.S.C. § 1251

Section 201 — 33 U.S.C. § 1281

Section 212 = 33 U.S.C. § 1292

Section 301 — 33 U.S.C. § 1311

Section 304 -- 33 U.S.C. § 1314

Section 309 _ 33 U.S.C. § 1319

Section 402 = 33 U.S.C. § 13842

Section 502 — 33 U.S.C. § 1362

Section 505 “= 33 U.S.C. § 13865

Section 510 — 33 U.S.C. § 1370

Section 511 33 U.S.C. § 1371

12 “Point source” is defined as “any discernible, confined and

discrete conveyance, ... from which pollutants are or may

be discharged.” § 502(14).

‘8 For purposes of “Title II—Grants for Construction of

Treatment Works,” treatment works are defined as “any

devices and systems used in the storage, treatment, recycling,

and reclamation of municipal sewage or industrial wastes of a

liquid nature to implement section 201 of this Act [which is

designed to encourage the development of the “best prac-

ticable waste treatment” over the life of the treatment work]

(Footnote continued on following page)

A-11

adopt the “best practicable contrel technology currently

available” by July 1, 1977, and the “best available

technology economically achievable” by July 1, 1983,

§§ 301(b 1A), (2A); publicly owned treatment works

are required to adopt “secondary treatment” by July

1. 1977 and “the best practicable waste treatment

over the life of the [treatment] works” by July 1, 1983,

§§ 301(b\ 1B), (2XB), and 201(gX2XA). The Act directs

the Administrator of the Environmental Protection

Agency (EPA) to prescribe the specific effluent

limitations achievable using “best practicable” treat-

ment technology, §§ 301(bX1XA), 304(bX1), “best

available” treatment technology, §§ 301(bX2\XA),

304(b)(2), and “secondary” treatment’ technology,

§§ 301(b\(1XB), 304(dX1). See. eg. El. du Pont de

emours & Co. v. Train, 430 U.S. 112, 126-1386 (1977);

American Meat Institute v. EPA, supra, 526 F.2d at 448-

452. In addition, all point sources, presumably including

publicly owned treatment works, must comply with “any

more stringent limitation .. . established pursuant to

any state law or regulations (under authority preserved

by §510)'5 or any other Federal law or regulations

.. + §301(bX1XC).

BR ¢ontinued

.... [and] any other method or system for preventing,

abating, reducing, storing, treating, separating, or disposing

of municipal waste, including storm water runoff, or in-

dustrial waste, including waste in combined storm water and

Sanitary sewer systems.” §§ 212(2\A), (B). Although “treat-

ment works” is not defined for purposes of “Title III—

Standards and Enforcement,” the definitions provided in

tie provide an indication of what may have been intended.

e recently noted that “{a]n earlier specific definition may

properly color a subsequent use of the same words without

redefinition,” quoting from Kent Mfg. Corp. v. Commissioner.

288 F.2d 812, 815 (4th Cir. 1961). Nachman Corp. vr. Pension

Benefit Guaranty Corp.. ..... P20... bases n. 6 (7th Cir. 1979).

14 “EPA” in this opinion includes the administrator and the

agency.

15 Section 510 provides,

Except as enureanty provided . . . nothing in this Act

shall (1) preclude or deny the right of any State or

(Footnote continued on following page)

. A-12

The 1972 Act also created a permit system, called the

National Pollutant Discharge Elimination System

(NPDES), under which discharge permits may be

granted by EPA or, where a state provides satisfactory

assurances that it will enforce the requirements of the

Act and EPA regulations, a designated agency of the

state.'6 Any discharges, except in compliance with the

limitations imposed in a permit, are declared unlawful.

§ 301(a). A permit must require the discharger to meet

the minimum effluent limitations apa in the Act

and EPA regulations. § 402(b\1)A).

Each state agency established under the National

Pollutant Discharge Elimination System is required to

notify EPA of any permit to be issued under the

program. § 402(d\1). If, under the permit, the waters of

another state “may be affected,” the agency is required

to notify the other state, to give the other state an

opportunity to submit written recommendations con-

cerning the limitations to be imposed in the permit, and,

if those recommendations are not adopted, to explain why

in writing to EPA and the other state. §§ 402(bX3), (5).

EPA may veto the issuance of any discharge permit if

the waters of a state other than the issuing state may be

' continued Bea tors ,

political subdivision thereof or interstate agency to adopt

or enforce (A) any standard or limitation respecting

discharges of pollutants, or (B) any requirement re-

specting control or abatement of pollution; except that if

an effluent limitation, or other limitation, effluent stand-

ard, prohibition, pretreatment standard, or standard of

performance is in effect under this Act, such State or

political subdivision or interstate agency may not adopt or

enforce any . . . less stringent . . . effluent limitation, or

other limitation, effluent standard, prohibition, pretreat-

ment standard or standard of performance. . . ; or (2) be

construed as impairing or in any manner affecting any

right or jurisdiction of the States with respect to waters

. . of such States.

16 This system replaced the permit system formerly admin-

istered by the Army ee of Engineers under the Act of

1899, 30 Stat. 1152, 33 U.S.C. § 407. United States Steel

Corp. v. Train, 556 F.2d 822, 831 & n. 7 (7th Cir. 1977);

American Meat Institute v. EPA, supra, 526 F.2d at 446.

A-26

suggests that use of the higher standard was a part of

an accommodation devised to enable the Supreme Court,

structured as it is “to perform as an appellate tribunal,” id.

at 498, to cope with original actions in that Court involving

interstate disputes regarding air and water pollution.”

He also indicated that the higher iedaed of proof

might be appropriate in original actions against private

defendants as well. Jd. at 501 n.4. Justice Harlan’s

rationale for requiring the higher standard of proof is

inapplicable when the action is tried in a trial court; and

the -alternative, sovereign state rationale recognized in

the earlier cases is inapplicable here, cf. Illinois v.

Milwaukee, supra, 406 U.S. at 98 (political subdivisions

of a state are not “States” as used in 28 U.S.C.

§ 1251(aX1), see note 6, supra). Accordingly, we think

the correct standard of proof in this case is a

preponderance of the evidence*®® rather than clear and

convincing evidence, although we can say, as did the dis-

trict court, that use of either standard would produce

the same result.

IV.

Sufficiency of the Evidence Supporting

Findings of Fact

The district court found that the defendants dump

substantial quantities of pathogen-containing sewage

into Lake Michigan each year, that the lake currents

** The complementary part of the accommodation was that

the Court imposed on itself “the duty of applying only legal

principles ‘which |it] is prepared to maintain against all

considerations on the other side. . . .’” /d. at 501.

3%” Although federal law governs, we note that some state

courts have also adopted the preponderance standard in

nuisance cases. See, e.g., City . orthlake v. City of Elmhurst.

41 Ill. App. 24 190, 197, 190 N.E.2d 375, 379 (1963); Jowa v.

Miller, 250 Ia. 1369, 1373, 98 N.W.2d 859, 860 (1959);

Findley Lake Property Owners v. Town of Mina, 31 Misc.2d

356, 154 N.Y.S. 2d 775, 795 (N.Y.Sup.Ct. 1956); Welborn v.

Page, 247 S.C. 554, 563, 148 S.E. 2d 375, 379 (1966); see

also Boller v. Teras Eastern Transmission, 87 F.Supp. 603,

605 (E.D. Mo. 1949) (diversity case).

A-13

affected. §§ 402(d2XA), (bX 5). It is not clear whether the

veto can be based on a ground other than violation of a

standard imposed pursuant to the Act by EPA or a

state. The language of § 402(dX2XA) suggests that it

can." The legislative history, however, indicates that the

veto must be based upon the issuing state’s failure to im-

pose limitations sufficient to assure that applicable

effluent limitations, either those imposed under the Act

by EPA or those imposed by the affected state, are

respected.'® Since there has been no veto here, it is un-

necessary for us to resolve this ambiguity.

17 Section 402(dX2) provides that,

No permit shall issue (A) if the Administrator within

ninety days of his notification under subsection (bX5) of

pe objects in writing to the issuance of such permit, or

B) if the Administrator within ninety days of the date of

transmittal of the proposed permit by the State objects in

writing to the issuance of such permit as being outside the

guidelines and requirements of this Act.

Comparison of §§ 402(dX2XA) and (B) suggest that, although

vetoes must usually be based on a violation of the effluent

limitations imposed under the Act, there is no such PI

ment where the interests of a second state are involved. But cf.

yg Soaps ay * 5 _ indonghe suit against Administrator of

PA, but only for failure to enforce effluent limitations

imposed under the Act against a point source in another state

resulting in harm to waters in governor's state) quoted in note

19, infra; see also § 505(a) (citizens’ suits to enforce limitations

imposed under the Act).

‘8 The Administrator’s general veto authority is expressly

limited to cases in which the minimum limitations im

under the Act are violated. § 402(dX2\B). The Senate version

of the Act, S. 2770, provided that no permit could be issued by

any state agency “until the Administrator is satisfied that the

conditions imposed by the State meet the requirements of this

Act.” S. 2770, 92d Cong., Ist Sess. § 402(d\2) (1971), reprinted

in 117 Cong. Rec. 38865, 38883 (1971); Library of Congress, A

Legislative History of the ater Pollution Control Act

Amendments gf 1972, 1534, 1690 (1973). The House version of

the Act, H.R. 11896, specifically rejected the permit-by-

permit review approach S. 2770 and only authorized the

Administrator to veto those permits under which the waters

of a second state might be affected. H.R. 11896, 92d. Cong., 2d

Sess. § 402(d2) (1972), reprinted in 118 Cong. Rec. 10804,

(Footnote continued on following page)

A-14

The 1972 Act also substantially modified enforcement

procedures. “Whenever, on the basis of any information

available to him, the Administrator finds that any per-

son is in violation of any condition or limitation” im-

under the Act, including those contained in state-

issued discharge permits, he may at his option “issue an

order requiring such person to comply,” commence a

civil action for appropriate relief in a federal district

court, or notify the appropriate state agency of the viola-

tion. §§ 30% a1), (3), (b). If the latter course is chosen

and after 30 days the state agency has not taken ap-

propriate action to secure compliance, the Administrator

must exercise one of the first two options. § 30%a).

- continued

10824 (1972); 1 Legis. Hist., supra, 893, 1058-1059. In part, the

Act incorporates the provisions of both S. 2770 and H.R.

11896. See note 17, supra.

The House provision was intended as a state-permit

analogue to the provisions of H.R. 11896, supra, § 401, which

requires every applicant for a federal license to secure a

statement from the appropriate state to the effect that no

applicable effluent limitation will be violated by the activity

for which the license is sought. See H.R. Rep. No. 92-911, 92d

Cong. 2d Sess., reprinted in Legis. Hist., supra, 753, 808-814.

Concerning H.R. 11896, § 402(d\2), the House Committee

explained:

The committee has included this procedure to_ protect

States which might otherwise be affected by the issuance

of a permit in a second State. This is similar to the

safeguards given to States in the certification procedure

under section 401. However, since_permits granted by

States under section 402 are not Federal permits—but

State rmits—the certification procedures are not

applicable.

Id. at 814. As noted above the House specifically rejected the

permit-by-permit review approach of the Senate bill, in favor

of giving the individual states “maximum responsibility for

the B plew program.” See id. See also the discussion of the

1977 amendments to the veto provisions, infra.

For more detailed discussions of the legislative history of

the veto provisions see Save the Bay v. Administrator of the

Environmental Protection Agency, 556 F.2d 1282, 1284-1287

(5th Cir. 1977); Mianus River Preservation Committee v.

Administrator of EPA, 541 F.2d 899, 906-909 (2d Cir. 1976).

Criminal and civil penalties are provided in §§ 30%c)

and (d).

In accord with the stated policy of encouraging

“[plublic participation in the development, revision, and

enforcement of any regulation, standard, effluent limita-

tion, plan, or program established” under the Act,

§ 101(e), Congress authorized any “person. . . having an

interest which is or may be affected” to file a civil action

to secure compliance with the Act against any person

alleged to be in violation of the provisions of the Act or

against the Administrator if he fails to perform any non-

discretionary duty under the Act. §§ 505(a), (g).1® But

“(njothing in [§ 505] shall restrict any right which any

person (or class of persons) may have under any statute

or common law to seek enforcement of any effluent stan-

dard or limitation or to seek any other relief (including

relief against the Administrator or a State agency).”

§ 505(e).

3. The 1977 Amendments.?°

The 1977 amendments are fairly extensive, but of

limited significance for our purposes. In them Congress

modified the National Pollutant Discharge Elimination

System to provide that when EPA objects to the issuance

of a permit, it must also state “the reasons for such objec-

tion and the effluent limitations and conditions which such

permit would include if it were issued by the Ad-

ministrator.” § 65(b), 91 Stat. 1599, as amended, 33

U.S.C.A. § 13842(dX2). A procedure was provided to

avoid the impasse that had been possible under the 1972

19 Also, the governor of a state may file a civil action against

the Administrator “where there is alleged a failure of the

Administrator to enforce an effluent standard or limitation

under this Act the violation of which. is occurring in another

State and is causing an adverse effect on the public health or

welfare in his State, or is causing a violation of any water

pen! requirement in his State.”

$ 505(h).

20 Clean Water Act of 1977, P.L. 95-217, 91 Stat. 1566 (to be

codified 33 U.S.C. §§ 1251 et seq.).

A-16

Act when EPA objected to the issuance of a specific per-

mit but the state agency refused to issue a modified per-

mit; under the amendments, if EPA “objects to the

issuance of a permit,” the issuing state is entitled to a

public hearing on the objection. § 65(a), 91 Stat. 1599, as

amended, 33 U.S.C.A. § 1342(d)\4); see S.Rep.No. 95-370,

95th Cong., lst Sess. 73, reprinted in [1977] U.S. Code

Cong. & Ad. News 4326, 4398; H.R. Rep. No. 95-830, 95th

Cong., lst Sess. 96-97, reprinted in [1977] U.S. Code

Cong. & Ad. News 4424, 4471-4472. If the state either

fails to request a hearing within 90 days of the objection

er fails to submit a revised permit meeting the objec-

tion, then EPA may issue a permit itself “in accordance

with the guidelines and requirements” of the Act § 65(a),

supra.

Congress also adopted provisions authorizing EPA,

with the concurrence of the State in which the point

source is located, under limited circumstances, to modify

the dates by which the effluent levels established in the

1972 Act for all point sources must be met. See §§ 43, 44,

45, 91 Stat. 1583-1586, as amended, 33 U.S.C.A.

§§ 1311(g), (h), (i). The provisions applicable to modifica-

tion of compliance dates for publicly owned treatment

works are of particular significance here. Where con-

struction is necessary for compliance with the “secon-

dary treatment” or “more stringent” requirements of the

1972 Act, §§ 301(bX 1B), (C), but cannot be completed

in time to meet these requirements or “the United States

has failed to make financial assistance . . . available in

time to achieve such limitations . . . ,” EPA or the ap-

propriate state agency may extend the compliance date

to July 1, 1983. § 45, 91 Stat. 1584-1585, as amended, 33

U.S.C.A. § 1311(i). The language and legislative history

of this provision, however, make it clear that the max-

imum compliance possible at the time must be achieved

throughout the period and complete compliance achiev-

ed at the “earliest date practically possible.” Jd.; S. Rep.

No. 95-370, 95th Cong., 1st Sess. 47, reprinted in [1977]

U.S. Code Cong. & Ad. News at 43872. The 1977

amendments also provide for _ pollutant-specific

modifications of the requirements of the 1972 Act. § 44,

91 Stat. 1584, as amended, 33 U.S.C.A. § 1311(h). Upon

A-17

an adequate showing that, among other things, “there is

an applicable water quality standard specific to the

pollutant for which the modification is requested” and

the modification would “not interfere with the attain- '

ment or maintenance of that water quality which

assures protection of public water supplies and the

rotection . . . of a balanced . . . population of-shellfish,

ish, and wildlife, and allows recreational activities, in

or on the water... ,” EPA, “with the concurrence of

the State, may issue a permit . .. which modifies the

secondary treatment effluent limitations prescribed un-

der the Act for publicly owned treatment works.” Jd.

The only other provision of the 1977 amendments that

is of significance for our purposes directs EPA to con-

duct a study and report to Congress on “the status of

combined sewer overflows in municipal treatment works

operations.” § 70, 91 Stat. 1608, as amended, 33 U.S.C.A.

, 1375(c). The Senate committee studying the proposed

egislation noted that “the second largest category of

municipal needs identified in the 1976 National needs

list is the correction of combined sewer overflows... .

Examples brought to the committee’s attention showed

combined sewer overflow problems to be a significant

source of untreated sewage to the Nation’s waters.” S.

Rep. No. 95-370, supra, 81, reprinted in [1977] U.S.

Code Cong. & Ad. News, supra, 4406. One of the pur-

poses of the report is to determine whether new legisla-

tion to address the problem is needed. § 70, 91 Stat.

1608, as amended, 33 U.S.C.A. § 13875(c).

B. Preemption and Compliance with the Statute As a

Defense

Congress has thus established a comprehensive and

detailed system for the regulation and eventual elimina-

tion of pollutant discharges into the nation’s waters.

Nevertheless, Congress has expressly stated that the

effluent limitations imposed under the Act do not

reclude the establishment of more stringent limitations

y any state, § 510, see United States Steel Corp. v.

Train, supra, 556 F.2d at 835-836, 837-838; and nothing

in the Act is te be construed as “limiting the authority of

any officer or agency of the United States under any

A-18

other law or regulation not inconsistent with [the] Act;

.... §511(a). The language of § 511(a) is arguably

broad enough to include the federal courts and, when

read in the light of § 510, suggests, if it does not require,

the conclusion that Congress did not intend to preempt

the federal common law of nuisance. The imposition of

effluent limitations more stringent than those required

under the Act, if necessary to prevent harm to a com-

plaining party, is fully consistent with the provisions of

the Act. Because of the shared authority between the

federal government and the individual states established

in the Act, it is plain that uniformity was not thought

necessary. Even the minimum effluent limitations

prescribed in the Act are not uniform because the

provisions for the ad hoc modification of the degree of

compliance required for specific point sources will

necessarily lead to variation.

While providing in § 505 for private suits to enforce

the effluent limitations prescribed in the Act, Congress

specifically stated that nothing in the section “shall

restrict any right which any person. . . may have under

any statute or common law to seek enforcement of any

effluent standard or limitation or to seek any other relief

... , thus indicating that preemption of existing

remedies was not intended. There is nothing in the

phrase “any statute or common law” that suggests that

this provision is limited to: state common law. There is

no reason to believe that Congress would have wished to

preserve state common law claims and preclude federal

common law claims. The preservation of all existing

remedies is consistent with the recognition in this Act of

the value of public participation in all aspects of the ef-

fort “to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters,” exemplified

by the direction to EPA and states participating in the

national discharge permit system to encourage such par-

ticipation. See also Citizens for a Better Environment v.

BPA; nis pf ghar Bp sis (7th Cir. 1979). We conclude that

the federal common law of nuisance has not been

preempted by the Act.

A-19

For the same reasons, we reject defendants’ contention

that compliance with a discharge permit issued under

the Act is a defense in an action based on the federal

common law of nuisance. Cf. New York v. New Jersey,

256 U.S. 296, 308 (1921) (in which the Court noted a

construction permit issued by the Secretary of War,

ahem Beye under the provisions of the Rivers and Har-

rs Act of 1899 that were replaced by § 402 of the 1972

Act, see note 16, supra, incorporating discharge

limitations adopted in a settlement agreement with

United States but did not regard the limitations as dis-

positive in New York’s action against New Jersey);

Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108

U.S. 317 (1883) (rejecting the defendant railroad’s

arguments that compliance with District of Columbia

smoke stack regulations, the existence of a federal

charter authorizing defendants to “make and construct

all works whatever which might be necessary and ex-

pedient,” or congressional approval of the train route

constituted a defense in a nuisance action when plaintiff

suffered injury resulting from defendant's activity).2! But

2! The law of Wisconsin is in accord. See, the Winchell ».

Waukesha, 110 Wis. 101, 109, 85 N.W. 668, 670 (1901) (“The

reat weight of .uthority, American and English, supports

the view that legislative authority to install a sewer system

carries no implication of authority to create or maintain a

nuisance. . . . If such nuisance be created, the same remedies

may be invoked as if the perpetrator were an individual.”);

Costas v. City of Fond du Lac, 24 Wis. 2d 409, 415-416, 129

N.W.2d 217, 220-221 Aor (operation of sewage plant in

accord with state specifications, orders, and regulations is no

defense in nuisance action). For other state cases to the same

effect, see, e.g., People of the State of California v. Los Angeles,

160 Cal. App. 2d 494, 505-506, 325 P.2d 63%, 645 (Ct. App.

1958); cases cited in Annotation, “Sewage Disposal Plant as

Nuisance,” 40 ALR 2d 1177, 1182-118 ion hater Case

Service, 40 ALR 2d 77, 77 (1969), Later Case Service Supp.

42, 42 (1978); cases cited in Annotation, “Right to, and

Propriety of injunction Against Nuisance for Discharge of City

Sewage,’ 77 L.Ed. 1213, 1227-1231 (1933); cases cited in

Davis, “Theories of Water Pollution Litigation,” 1971 Wis. L.

Rev. 738, 768 n. 138, 771 n. 148 (1971); cf. Venuto v. Owens

Corning Fiberglass, 22 Cal. App. 3d 116, 128-129, 99 Cal.

Rptr. 350, 358-359 (1971) (air pollution).

A-20

compare Pennsylvania v. Wheeling & Belmont Bridge

Co., 138 How. (54 U.S.) 518 (1851) with Pennsylvania v.

Wheeling Bridge Co., 18 How. (59 U.S.) 421 (1856) and

SE gag aati Co. v. Chicago, 9 Otto (99 U.S.)

( ;

C. Limitations on Relief

Defendants contend that even if the Act does not

reempt the federal common law of nuisance, and even

if compliance with the Act is not a defense, no more

‘stringent relief can be granted by way of abatement

than the federal minimum prescribed by the Act and

EPA. In other words, although the federal government

need not speak with a single voice, the words must be

the same. As noted above, however, Congress has ex-

pressly stated that nothing in the Act should be read to

limit the authority of any federal “officer or agency” so

long as that authority is consistent with the provisions of

the Act. Consistency does not require uniformity; the

provision expressly preserving the authority of the states

to impose limitations more stringent than those required

under the Act, § 510, indicates that Congress did not

think more stringent limitations inconsistent with the

Act. Moreover, the savings clause, § 505(e), speaks not

only of rights, but also of remedies. Since any effluent

limitations less stringent than those provided in the Act,

except pursuant to the modification procedures es-

tablished, are prohibited, § 505(e) must contemplate

more stringent limitations than those imposed in the

Act. If accepted, defendants’ argument would reduce a

cause of action under the federal common law to no

more than an alternative avenue for enforcement of the

statute. For the reasons stated above, we do not think

that Congress intended any such restriction or that the

statute, fairly read, limits the relief available in a

federal court.

D. Common Law of the Statute

The conclusion that the Federal Water Pollution Con-

trol Act, as amended, does not preempt the federal com-

A-21

mon law of nuisance or limit the relief available in this

case does not render that Act irrelevant. A statute that

does not by its terms govern the case before a court may

contain indications of the legislature’s judgment on rele-

vant issues of policy or provide an appropriate principle

for decision of the case.”* In applying the federal com-

mon law of nuisance in a water pollution case, a court

should not ignore the Act but should look to its policies

and principles for guidance. See Illinois v. Milwaukee,

supra, 406 U.S. at 103 n.5; cf. Textile Workers v. Lin-

coln Mills, 353 U.S. 448, 456-457 (1957).

The Act contains no rules or principles that control in

this case. We think, however, that the minimum treat-

ment standards found acceptable by Congress and the

effluent limitations imposed under the system established

in the Act provide an rth ae starting point. Cf.,

e.g., Wallis v. Pan American Petroleum, 384 U.S. 63, 69

(1966). In the 1972 Act, Congress said that by July 1,

1977, publicly owned treatment works must, with

several significant exceptions, adopt “secondary” treat-

ment. That command was qualified by the 1977

amendments authorizing EPA or the appropriate state

agency to extend the time for compliance with the secon-

dary treatment standard to July 1, 1983. The Act’s

generally more stringent second stage provisions only

require “the application of the best practicable was

treatment technology over the life of the works ... ,” by

July 1, 1983. §§ 301(b2XB), 201(g¢X2)A) (emphasis add-

ed). Thus, Congress has approved secondary treatment

“2 See, e.g.. Moragne v. States Marine Lines, 398 U.S. 375,

390-393, 406-408 (1970); Landis, “Statutes and the Sources of

Law,” Harvard Legal Essays 213 (1934), reprinted in 2 Harv. J.

Leyis. 7, 12-19, 21-22 (1965); Page, “Statutes as Common Law

Principles,” 1944 Wis. L. Rev. 175, 186-211; Schaefer,

“Precedent and Policy,” 34 U. Chi. L. Rev. 3, 20-22 (1966):

Stone, “The Common Law in the United States,” 50 Harv. L.

Rev. 4, 14-15 (1936); Traynor, “Statutes Revolving in Common-

og cooaet 17 Cath. U. L. Rev. 401, 403-408, 412-417, 421-

424 ( ).

A-22

as an acceptable minimum for publicly owned treatment

works at least until 1988 and perhaps later.”

EPA has defined secondary treatment for the pur-

poses of the Act in terms of resulting effluent quality. 40

C.F.R. § 133.102. Even though states are authorized to

establish more stringent effluent limitations than those

required by EPA, §§ 402, 510, there appear to be no

Wisconsin regulations imposing more stringent stan-

dards, and the NPDES permits issued by the Wisconsin

agency to the defendants in this case impose limitations

no more stringent than those required by EPA.*4

23 Comparison of the treatment levels demanded of publicly

owned treatment works and those demanded of all other point

sources suggests that Congress was of the view that publicly

owned treatment works should be subject to less stringent

standards than other point sources. Point sources other than

publicly owned treatment works were required to implement

the “best practicable control technology currently available,”

as determined by EPA, by July 1, 1977. § 301(bX1XA).

Senator Muskie, the “principal author of the Act,” see

American Meat Institute v. EPA, supra, 526 F.2d at 451,

expressed the view that although EPA had authority to define

“best practicable” as “the equivalent of secondary treatment

for industry,” more stringent requirements might also be

imposed, 1 Legislative History of the Water Pollution Control

Act Amendments of 1972 167-170 (1973), quoted in American

Meat Institute v. EPA, supra, 526 F.2d at 453. The 1972 Act

required point sources other than publicly owned treatment

works to implement “best available treatment” by 1983,

§ 301(bX2KA); the 1977 amendments modified this provision

to require “best conventional treatment” for pollutants

identified by EPA as “conventional” by July 1, 1984, and “best

available treatment” for ogee no later than J Te a;

1987. § 42, 91 Stat. 1582-1583, as amended, 33 U.S.C.A.

§§ 1311(bX2XA), (E), (F).

24 EPA has not vetoed the permits issued by the Wisconsin

agency. See notes 17 and 18, supra, and accompanying text.

Before filing this action, Illinois invoked the enforcement

poostourse of the pre-1972 Act, see, Note, “Federal Common

aw in Interstate Disputes,” supra, 1973 U. Ill. L. F. at

144 & nn. 17-19, but apparently chose not to pursue the

remedy provided in § 402(bX5) and did not attempt to have

EPA veto the permits issued to the defendants under

§ 402(d 2) A).

A-23

As we shall explain in more detail below, the effluent

limitations contained in the permits are less stringent

than those imposed by the district court in this case. In

addition, the permits contain no prohibitions against dis-

charges of raw sewage through overflows.

While it is Ss . to give weight to Congress’ ex-

pectations in adopting the Act and the standards es-

tablished by EPA pursuant to the Act, we cannot forget

that Congress deliberately chose to preserve existing

rights and remedies. Thus, if the evidence in this case

shows that ree: more stringent than those im-

sed in the NPDES eager are necessary to protect II-

inois residents from harm caused or threatened by the

defendants’ sewage discharges, plaintiffs are entitled to

have the more stringent requirements imposed. We can

think of no other reason for Congress’ preserving

previously existing rights and remedies than to protect

the interests of those who would be able to show that the

requirements imposed pursuant to the federal statute

are inadequate to protect their interests. When the com-

plaining party is a neighboring state, the federal com-

mon law of nuisance provides a peculiarly appropriate

remedy.”5

III.

Elements of the Claim, Relief, and

Standard of Proof

The elements of a claim based on the federal common

law of nuisance are simply that the defendant is

carrying on an activity that is causing an injury or

significant threat of injury to some cognizable interest of

25 Although the Administrator’s power to veto permits that

will result in harm to the waters of a second state provides

some protection, as noted above, his authority may be limited

to those cases in which the complaining state can point to

some applicable effluent limitation or water quality standard

that will be violated. Furthermore, the Administrator’s power

to waive review of permits issued to any category of point

sources may render any protection that is provided by the

veto provisions illusory. gg. 402(d\X3), (e), (f).

A-24

the complainant. See Georgia v. Tennessee Copper, 206 U.S.

230, 238-239 (1907).

It has been said that “in such a suit traditional

limitations on equitable remedies are applicable.”

United States v. Stoeco Homes, 498 F.2d 597, 611 (3d Cir.

1974). This would mean that an injunction would be

granted only when the right to relief is clear and the

remedy at law inadequate. Missouri v. Illinois, 180 U.S.

208, 248 (1901); Wright & Miller, 11 Federal Practice

and Procedure, § 2942, 364, 368-369 (1973); see also

Mugler v. Kansas,123 U.S. 623, 672-673 (1887).2 But

when a state complains of pollution originating outside

its territory the rules are different:

If the state has a case at all, it is somewhat more

certainly entitled to specific relief than a private

party might be.... ,

It is a fair and reasonable demand on the part of

a sovereign that the air over its territory should not

be polluted ... by the act of persons beyond its

control .... If any such demand is to be enforced

this must be, notwithstanding the hesitation that we

er feel if the suit were between private parties,

and the doubt whether, for the injuries which they

might be suffering to their property they should not

be left to an action at law.

Georma v. Tennessee Copper, supra, 206 U.S. at 237-238.

Moreover, when ihe polluting activity is shown to en-

danger the public health, injunctive relief is generally

appropriate. See Harrison v. Indiana Auto Shredders

Co., 528 F.2d 1107, 1122-1123 (7th Cir. 1976) (diversity

case applying Indiana law).

26 For state law cases to the same effect see, es Green v.

Smith, 231 Ark. 94, 96, 328 S.W.2d 357, 359 (1959);

Delaware Optometric Association v. Sherwood, 35 Del. Ch. 507,

511, 122 A.2d 424, 427 (1956); City of Pana v. Central Washed

Coal Co., 260 Ill. 111, 122-123, 102 N.E. 992, 997 arc eo

of Chicago v. Commonwealth Edison Company, 24 Il. App. 3

624, 632, 321 N.E.2d 412, 418 (1974); Harden Chevrolet v.

Pickaway Grain Co., 27 Ohio Ops. 144, 147, 194 N.E.2d 177,

180 (Ct.C.Pl. Ohio 1961); Wade v. Fuller, 12 Utah 2d 299, 301,

365 P.2d 802, 804 (1961).

A-25

Similarly, while determining whether to issue an in-

junction generally involves a balancing of the interests

of the parties?” Wright & Miller, supra, § 2942 at 366-

867 & n.43, the balance is of less importance when the

plaintiff is a sovereign state. See Georgia v. Tennessee

Copper, supra, 206 U.S. at 238. And if the pollution en-

dangers the public health, injunctive relief is Pwd

without resort to any balancing. See Harrison v. Indiana

Auto, supra, 528 F.2d at 1122-1123.

In exercising its original jurisdiction in interstate

pollution cases, the Supreme Court has applied a

preponderance of the evidence standard when the defen-

dant is a private party, Georgia v. Tennessee Copper,

supra, 206 U.S. at 238-239, but a clear and convincing

evidence standard when the defendant is a state, New

York v. New Jersey, 256 U.S 296, 309 (1921); Missouri v.

Illinois, 200 U.S. 496, 520-522 (1906).8 In both New

York v. New Jersey and Missouri v. Illinois, supra, 200

U.S. at 520-522, use of the higher standard was at-

tributed to the sovereign status of the defendant. For ex-

oe in New York v. New Jersey the Court explained

that

the burden upon the state of New York of sustain-

ing the allegations of its bill is much greater than

that imposed upon a. complainant in an ordinary

suit between private parties. Before this court can

be moved to exercise its extraordinary power under

the Constitution to control the conduct of one state

at the suit of another, the threatened invasion of

rights must be of serious magnitude and it must be

established by clear and convincing evidence.

New York v. New Jersey, supra, 256 U.S. at 309. Justice

Harlan’s opinion for the Court in Ohio v. Wyandotte

Chemicals, supra, 401 U.S. at 501-502, 504-505, however,

2 For state law cases using this balancing test, see, e.g.

Davis, “Theories of Water Pollution Litigation,” 1971 Wis. L.

Rev. 738, 766-767 n. 130; see also Harrison v. Indiana Auto,

supra, 528 F.2d at 1123 (diversity case). Wisconsin courts

apparently do not use the test. Davis, supra, at 767-768 n. 134.

2 See also Missouri v. Illinois, supra, 180 U.S. at 248.

A-27

carry the pathogens into Illinois waters, where they may

infect drinking water supplies and pose a danger to

swimmers, and therefore that defendants’ actions pose a

significant risk of injury to Illinois residents. These find-

ings are not clearly erroneous. Rule 52, Fed. R. Civ. P.

The evidence me ft ting the findings, which we have

carefully reviewed,?! may be summarized as follows:

Any population as large as Milwaukee’s will include

carriers of enteroviruses,*? who will excrete the viruses.

Therefore the sewage of a city as large as Milwaukee in-

evitably contains these viruses. Similarly, the sewage of

any large city will also contain pathogenic bacteria.

The sewer systems defendants operate have a total of

approximately 239 bypass or overflow points from which

untreated sewage escapes to flow directly or indirectly

into Lake Michigan or into rivers that empty into the

lake.33 Most of these overflow points are either pumping

31 In an unpublished order filed with this opinion we discuss

the evidentiary support for the district court's findings of fact

in detail. Since this factual discussion is of little precedential

value, we omit it from this opinion in favor of a short

summary. See Circuit Rule 35.

32. Enteroviruses, sometimes referred to as enteric viruses,

are those that inhabit the gastroenteric tract of human beings.

Many of these viruses are pathogenic, causing diseases such as

polio, pleurodynia, myocarditis, meningitis, and encephalitis.

33 Both of the defendant commissions act as agents of the

Metropolitan Sewerage District of the County of Milwaukee, a

municipal corporation that holds title to all property acquired

by either commission but is not a defendant in this case. The

city commission is responsible for “disposal of the sanitary

and industrial sewage generated within the City of Milwaukee

and to this end has established and maintained a system of

intercepting sewers within the City and ... operates the

Jones Island and South Shore treatment plants; .. . .” The

county commission is responsible for “collection and trans-

rtation of sanitary and industrial sewage from outside. . .

ilwaukee but within the service area of the Metropolitan

Sewerage District . . . for disposal at the Jones Island and

South Shore treatment plants, all subject to approval by the

City Commission: ....” See generally Wis. Stat. Ann.

§ 59.96(6) (West). The City of Milwaukee seems to be solely

responsible for the sewers within its boundaries, other than

the intercepting sewers.

(Footnote continued on following page)

A-28

stations or what are called “gravity overflows.” Both

types are triggered by the level of sewage in the system.

In the former, pumps are activated by electrodes inside

the sewer when the sewage flow reaches the level of the

electrodes; when the pumps are activated, raw sewage is

either pumped into storm sewers, which empty into

rivers that in turn empty into Lake Michigan, or

dumped directly into the rivers. The gravity overflows

are simply pipes placed inside the sewers; when the

sewage level rises to that of the pipes, raw sewage pours

out into either storm sewers or rivers and then into Lake

Michigan. Since both types of overflow points are ac-

tivated by the level of sewage, an overload or a blockage

in the sewers that causes the sewage level to rise wil!

cause overflows, even if the sewer capacity would

otherwise be adequate. Because ground water and water

from storm sewers sometimes “infiltrates” or flows into

sanitary sewers, overflows from the sanitary sewers, as

well as from combined sewers, are especially likely dur-

ing wet weather. In a single month in 1976 the

untreated sewage discharged from just 11 of the 239

overflow points totalled 646.46 million gallons.

In addition to the pathogens in the raw sewage that

the defendants dump into Lake Michigan, pathogens are

contained in the effluent that the South Shore and Jones

Island treatment mc discharge directly and indirect-

ly into Lake Michigan*4 when treatment of sewage at

8 continued

There are 18 pees points and 31 overflow points on the

‘Metropolitan (or Main) — System, which is the

network of sanitary sewers in the Milwaukee metropolitan

area that carries sewage to the Jones Island and South Shore

treatment plants. Sewage generated in the 26 municipalities

within the area first flows into a “lateral sewer” and from

there into “local collector sewers,” which connect with the

Metropolitan Interceptor System. There are 78 overflow

points (called “crossovers”) on Milwaukee’s sanitary sewer

system and 112 overflow points on the city’s combination

storm water and sanitary sewer system (called combined

sewer overflows).

44 South Shore effluent is discharged into Lake Michigan,

but Jones Island effluent is discharged into the Milwaukee

Harbor and from there flows into Lake Michigan.

A-29

those plants is inadequate, as it has sometimes been.

Biochemical oxygen demand (BOD),*5 as an indicator of

the presence of organic material, and the presence of

suspended solids** are both significant factors in

evaluating the adequacy of sewage treatment, especially

as to virus and bacteria elimination.2? EPA regulations

and the discharge permits issued by the Wisconsin

rie. Se gg of Natural Resources for the Jones Island

and South Shore plants require that the average daily

BODs (see note 35, supra) and suspended solids content

of the effluent net exceed 30 milligrams per liter (mg/l)

. In any 30-day period. Not only were the 30-day average

daily limitations frequently violated at Jones Island and

South Shore, but also, on occasion, even if these

limitations were met, discharges on individual days

greatly exceeded the 30 mg/! limitation.

The evidence established that, at temperatures

between 40 and 70 degrees Fahrenheit, 90% of the

bacteria discharged on any given day will generally

** Biochemical oxygen demand (BOD) is an “index of the

biodegradable i amine present in the effluent.” Standard

Methods for the Exramination of Water and Wastewater, 513,

544 (14th ed. 1975). BOD is generally “measured over a five-

day period,” American Meat Institute v. EPA, supra, 526 F.2d

at 447, hence the abbreviation BODs.

36 As the term suggests, “suspended solids” are “particles of

organic and inorganic matter suspended in the water or

floating on its surface.” American Meat Institute v. EPA,

supra, 526 F.2d at 447.

%* Chlorine, contained in hypochlorous acid, is one of the

most common disinfectants used in sewage treatment and is

the only disinfectant used at either Jones Island or South

Shore. Ammonia or nitrogen in organic material reacts with

chlorine to form compounds that are either ineffective or less

effective than hypochlorous acid as viricides and bactericides.

Viruses or bacteria embedded in spn say solids, organic or

inorganic, will be protected from effective chlorination.

&* Both EPA regulations and the discharge permits impose

seven-day daily average BOD; and suspended solids limita-

tions of 45 mg/l. We note that on some occasions the

defendants’ individual day discharges absolutely precluded

meeting the seven-day daily average.

A-30

“die-off” within two to four days, although they can sur-

vive for four to eight days. But, at temperatures

between 40 and 50 degrees Fahrenheit, viruses will sur-

vive for months; even at 70 degrees, a temperature rare-

ly reached by Lake Michigan except in July and August,

viruses will survive for about two weeks. All of the

witnesses who testified concerning the transport of

pathogens discharged at Milwaukee into Illinois waters

agreed that the southerly currents were strong enough

and persisted long enough to carry the ‘some into I]I-

linois waters in less than four days. They differed only

as to the number of times that this could be expected to

occur in a given year.

Pathogens discharged at Milwaukee will sometimes be

carried into Illinois waters close enough to shore to come

in contact with swimmers and to be taken in by water

treatment plants. A swimmer can be infected by getting

contaminated water into his mouth or nose or on a cut or

abrasion on the skin. Drinking water can be con-

taminated by viruses or bacteria in lake water if a

water treatment plant malfunctions because of human

error or mechanical breakdown. Furthermore, there

was evidence that viruses and bacteria can survive the

treatment at a drinking water plant, even in the absence

of error or breakdown. If viruses or bacteria con-

taminate the drinking water supplies, Illinois residents

ingesting the water can of course become infected.

Defendants estimate that the effluent from Jones

Island and South Shore contains about 1,100,000 pounds

of phosphorus each year; the phosphorus content of

defendants’ raw sewage discharges is unmeasured. The

district court found that this constituted a substantial

contribution to the accelerated eutrophication of the

water in the western in-shore zone of Lake Michigan,

within the territorial boundaries of the State of Illinois,

and also found that the State of Michigan was injured

by accelerated eutrophication, aggravated by defen-

dants’ discharges.*9

39 “Eutrophication” is a natural process, and refers to the

gradual increase of nutrient concentration in a ne gs of water,

which in turn causes increasing concentrations of phytoplank-

(Footnote continued on following page)

A-31

V.

Sufficiency of the Evidence

Supporting the Relief Granted

A. Relief Granted by the District Court

The district court’s judgment order requires the

defendants to eliminate all overflows, defined as any

“crossover, bypass, diversion structure, relief structure,

pump station or any other device or mechanism by

which human fecal waste is discharged directly or in-

directly to public streams, rivers or lakes without collec-

tion and treatment,” located outside the combined sewer

system area by July 1, 1986. [Appendix 2.] As to the 112

combined sewer overflows, the defendants must con-

struct a collection and conveyance system with a storage

capacity of 2605 acre-feet’? by December 31, 1989. Any

overflow from this collection and conveyance system

must receive minimum “treatment” consisting of “bar

screen” filtering, followed by “drum screen” filtering,

and chlorination. [App. at 5.] Defendants must either

modify existing sewage treatment facilities or construct

new facilities to treat «il sewage, including that

collected in the combined sewer collection and con-

veyance system, in order to meet the following effluent

limitations by December 13, 1986:

(1) based on 30 consecutive daily samples, an

average of 5 mg/l! suspended solids, provided that

no single sample exceed 10 mg/1 suspended solids;

continued

ton and other living organisms. Man’s nutrient inputs may,

however, accelerate the evolution. Liminologists regard phos-

phorus as a “controlling element” in the process. Since

Seige “abc is eeoeery to support the growth of phytoplank-

limiting Meow ys orus imposes an upper limit on the

je Mo manifestations of eutrophication, which include

reduction of clarity and oxygen content, production of

obnoxious odors, and reduction of the quality of drinking

water supplies.

An “acre-foot” is “the volume that would cover one acre to

a depth of one a ” Webster's Third New International

Dictionary (unabridged) 19 (1971).

A-32

(2) based on 30 consecutive daily samples, an

— of 5 mg/! BODs, ar that no single

sample exceed 10 mg/l BODs

(3) based on daily samples, a free chlorine

residual after 15 minutes exposure using the

amperometric test;

(4) based on daily grab samples, fecal coliform

counts not exceeding 40/100 ml; and

(5) based on daily sampling, a monthly average

of 1 mg/l phosphorus. [App. at 6-7.]

The order also provides for evidentiary hearings to

secure modifications of the order or to determine

whether the provisions of the order have been violated.

In any such hearing the defendants must bear the

burden of proving by a preponderance of the evidence

that the modification is necessary or that any alleged

violation of the order did not occur or was excused.

B. Overflows

That part of the district court’s order requiring defen-

dants to eliminate all overflows outside the combined

sewer system by July 1, 1986 and to construct a

collection and conveyance system for the combined

sewer system that will practically eliminate overflows

on the combined sewer system by December 31, 1989 is

supported by the evidence and is reasonable.

1. Overflows Outside the Combined Sewer Area

There appear to be no provisions in the Act or EPA

regulations expressly forbidding the discharge of raw

Sewage into public waters from overflow points. Yet

such a prohibition is at least implicit in the provisions of

§ 301.4! It would be senseless to prohibit the discharge

of effluent from publicly owned treatment works not

meeting the secondary treatment requirements of

§ 301(bX1XB), if raw sewage can nonetheless be dis-

41 See also §§ 212(2A), (B), ran in note 13, ers 70, 91

Stat. 1608, as amended, 33 U.S.C.A. ; 137% c); S. Rep. No. 95-

370, supra, at 81, _ in [1977] U.S. Code Cong. & Ad.

News, supra, at 4406.

A-33

charged at will from overflow points before it reaches

the treatment works. The discharge permits that the

Wisconsin agency issued for the South Shore and Jones

Island treatment plants prohibit, except under very

limited conditions, any “diversion or bypass” of raw

sewage at the treatment works. [Wisconsin Pollutant Dis-

charge Elimination System Permits (WPDES Permits):

WI-0024775, Part I, p.4 of 6 (South Shore), P.Ex. 63;

WI-0024767, Part I, p.4 of 6 (Jones Island), P.Ex. 62.

Although the discharge permits do not otherwise

prohibit overflow discharges, the permits do require the

city commission to “initiate” Lomein “leading to the

elimination or control of all discharge overflow and/or

bypass points... .” [WPDES Permits: WI-0024775,

supra, Part II, p.7 of 8; WI-0024767, supra, Part II, p.5

of 6.] Under the permits, plans for the elimination or

control of overflows were to be submitted to the

Wisconsin agency by December 31, 1975. It is not clear

from the record whether any plans were submitted, or,

if Seen were, what their terms were and what action was

taken.

In any eveni, the provisions of these permits appear to

have been modified. In July, 1976, the defendant com-

missions filed an action in a Wisconsin state court

against the Wisconsin Department of Natural Resources,

the state’s discharge permit issuing agency, challenging

the validity of the requirements of the permits issued for

South Shore and Jones Island. The state agency

answered asserting the validity of the permit re-

fe ag and filed a counterclaim, alleging that the

efendant commissions had violated the permit effluent

a on numerous occasions. The state agency also

allege

that under dry weather and wet weather conditions,

bypassing and overflowing occur within the

sewerage systems of the Commissions and such dis-

charges must either be eliminated or meet secon-

dary treatment standards by July 1, 1977....

{Sewerage Commission of the City of Milwaukee and

Metropolitan Sewerage Commission of the County of

Milwaukee v. State of Wisconsin Department of Natural

A-34

Resources, Stipulation 3 (Wis. Ct. Ct. Case No. 152-342,

May 25, 1977), D.Ex. 1311.]

The state court suit was resolved by a settlement

agreement, approved by the court on May 25, 1977, in

which the sewerage commissions accepted the require-

ment that they eliminate dry weather bypasses and

overflows on the Main Interceptor System by July 1,

1982 [Jd. at 4], and complete construction of relief

sewers by July 1, 1983 [/d. at 7, 8]. While construction of

relief sewers and the other construction contemplated in

the agreement presumably is intended to mitigate

overflows, there is no specific date by which wet weather

overflows must be eliminated. The sewerage com-

missions also agreed to “coordinate” a district-wide ef-

fort to “correct” wet weather 54 gone and overflows on

the separate sewer systems of the municipalities located

within the Metropolitan Sewerage District of the County

of Milwaukee, see note 38, supra. Under the agreement,

any of the 26 municipalities within the district, by adopt-

ing a “resolution of commitment to the correction of wet

weather related bypassing and overflowing within its

sewerage system” becomes subject to the supervision of

the commissions, which are required to make sure that

all “corrective work” is complete by July 1, 1986. [Jd. at

8-9, 15.] We need not decide whether modification of dis-

charge permits in this manner complies with the

procedural requirements of §§ 402(b)3), (5), (6) or the

substantive requirements of §§ 402(bX1)A), (B). For our

purposes, it is sufficient that the state agency has con-

demned raw sewage discharges.

It is doubtful whether anyone, layman or expert,

would argue that the discharge of raw sewage into

public waters is a satisfactory alternative to collection

and treatment of sewage, even though it may be conced-

ed that it may take time to fund and provide collection

and treatment facilities, and therefore the raw sewage

discharges may have to be endured for the short term.

Donald Wieland, Director of Engineering for the

Sewerage Commission of the City of Milwaukee, flatly

stated that discharging raw sewage into public waters

as a permanent solution to sewage overloads was not

“sound sanitary engineering practice”:

A-35

Q. As a design engineer responsible for design-

ing sewers with adequate hydraulic capacity, do

you consider it sound sanitary engineering practice

to design and install overflow devices which are in-

tended to permit the —- of raw sewage as a

permanent solution to hydraulic overloads on an in-

terceptor system?

A. Certainly not.

(Tr. 201.) Similarly, Dale Lundy, a hydraulic and

Sanitary engineering consultant called by plaintiffs,

testified thx: collection and treatment is “considered

preferable” to discharge of raw sewage. [Tr. 907.] Defen-

dants point to nothing in the record that would even

suggest that the discharge of raw sewage into public

waters is either an acceptable long range solution to the

problem of disposing of human wastes or a practice that

can be regarded as safe.

The “crossover” overflow devices on the city’s so-

called “separate” system also fall within this aspect

of the court’s order. Rather than discharging raw

sewage directly into public waters, the crossover

devices dump the sewage into storm sewers which

in turn cyan it into the public waters. There may

or may not water in the storm sewers when the

crossover devices are activated, and therefore the

crossover overflow devices may result in discharges of

raw sewage into public waters in precisely the same

manner as the overflow devices that dump sewage

directly into public waters.*? We note that the discharge

permit apparently issued to the City of Milwaukee by

the Wisconsin agency, as modified, see note 33, supra,

requires the city to “initiate a program leading to the

elimination of the sanitary sewer crossovers (gravity)

and the electrically operated relief pumps” on the city’s

“separate” sanitary sewer system “to assure attainment

of all applicable Water Quality Standards.” [Modification

of Wisconsin Pollutant Discharge Permit No. WI-

0026875, p.1 of 8 (December 17, 1976), D.Ex. 1110.]

As to the significance of any dilution that might occur in

the storm sewers see the discussion of combined sewer

overflows, infra.

A-36

We have seen that, depending on the efficiency of the

treatment, even effluent from a treatment plant may

contain pathogens that pose a danger to Illinois

residents and phosphorus that contributes to the

accelerated eutrophication of the lake. Obviously then

untreated sewage poses a greater danger. We therefore

affirm the district court’s order to the extent that it

requires defendants to eliminate discharges of untreated

sewage outside the combined sewer system area.

2. Overflows Within the Combined Sewer Area

In considering the city’s combined sewer overflows, it

is again appropriate to take as a starting point the

provisions of the Act. Although there is no provision ex-

pressly prohibiting “combined sewer overflows,” we

think that such a prohibition can be inferred from the

general provisions of § 301. For, as noted above, it simp-

ly does not make sense to read the statute as authorizing

unrestricted discharges of untreated sewage; “dilution”

by storm water does not constitute treatment. It seems

apparent that the amount of dilution that has taken

place when an overflow occurs depends entirely on what

the relative volumes of sewage and water in the sewer

happen to be at the time of the overflow. The overflow

mechanisms do not regulate the amount of dilution or

distinguish between pure and diluted sewage. If the

total amount of sewage and water introduced into a

sewer exceeds its capacity, the excess is discharged into

the rivers and the lake; it may be either “diluted” or

“undiluted.” That the flow from the combined sewers is

supposed to go to the treatment plants suggests that not

even the city believes that the dilution in the combined

sewers is sufficient to render the discharges harmless.*%

EPA regulations concerning treatment plants that

receive sewage from combined sewers recognize that

#3 See also the expression of concern about combined sewer

overflows in the Senate committee report accompanying the

1977 amendments, quoted supra; see generally the definition

of treatment works, including “waste in combined storm

water .. . sewer systems.” § 212, quoted supra, note 13.

A-37

during wet weather it may be difficult for a treatment

Sogh to meet secondary treatment effluent limitations,

ut those treatment plants are not exempt from the re-

quirements of the regulations, and “diluted” sewage, like

raw sewage, must be treated before being discharged:

Secondary treatment may not be capable of

meeting the percentage removal requirements...

during wet weather in treatment works which

receive flows from combined sewers (sewers which

are designed to transport both storm water and

sanitary sewage). For such treatment works, the

decision must be made on a case-by-case basis as to

whether any attainable percentage removal level

can be defined, and if so, what; that level should be.

49 C.F.R. § 133.03(a). Implicit is) a recognition that

dilution alone is inadequate to protect the receiving

waters.

The discharge permit that appears to have been issued

to the City of Milwaukee required the city to “initiate a

program leading to the attainment of control of

overflows from the City’s combined sewer system...

to assure attainment of all applicable Water Quality

Standards.” [Modification of Permit No. WI-0026875,

supra, at p.5 of 8.] Although the City of Milwaukee was

not one of the named plaintiffs in the state court

litigation referred to above, the settlement agreement

appears to modify this provision and to contemplate

“completion of construction [on the combined sewer

system] and achievement of applicable water quality

standards by July 1, 1993.” [See crag, supra, at

10.] Again we need not decide whether a modification

accomplished in this way meets the procedural require-

ments of the Act or whether the terms of the

modification meet the substantive requirements of the

Act. It is enough that neit) er Congress nor any agency

charged with responsibility under the Act has approved

the practice of discharging untreated sewage from a

combined sewer system into public waters.

The requirements in the district court’s order that the

‘defendants collect and treat the sewage in combined

A-38

sewers before discharging it directly or indirectly into

Lake Michigan is proper in light of the evidence. Defen-

dants concede the feasibility of the completion date re-

quirements. [App. at 16.]

3. Illinois’ Regulation of Overflows Within Its Own

Jurisdiction

Defendants attack the overflow elimination provision

of the district court’s order on the additional ground

that Illinois does not even require elimination of sewage

overflows within its own jurisdiction. Defendants cite

602 of the Illinois Pollution Control Board Rules and

egulations, Chapter 3: Water Pollution [P.Ex. 1711.

There is precedent, in a case of this kind, for con-

sidering the rules of the complaining state as an indica-

tion of what is appropriate for the protection of the

residents of that state. Missouri v. Illinois, supra, 200

U.S. at 525-526.44 The argument is, on its face, in-

applicable to sanitary sewer overflows since Illinois does

prohibit those, Iliinois Pollution Control Board Rules

and Regulations, supra, § 602(b) (1976) [P.Ex. 171];

‘4 “Where, as here, the plaintiff has sovereign powers, and

deliberately permits discharges similar to those of which it

complains, it not only offers a standard to which the

defendant has the right to appeal, but, as some of those

discharges are... at points where they could cause the

fas complained of], it warrants the defendant in demand-

ing the strictest proof that the plaintiff's own conduct does not

produce the result, or at least so conduce to it, that courts

Pra aa be curious to apportion the blame.” 200 U.S. at

529-526.

49 Defendants point to one pares in Illinois where sewage that

has not been fully treated may be discharged into Lake

Michigan, viz., Waukegan. At present about twice a year and

“ultimately about once a year” some sewage that has only

received treatment ponaisene of 10 hours of sedimentation

and chlorination will be discharged into Lake Michigan. [Tr.

13444-13445.] This discharge appears to be in violation of

Illinois water pollution regulations, see ne Memorandum

of Plaintiff-Appellee State of Illinois 35, and therefore

provides little support for defendants’ contention.

A-39

consequently, we interpret defendants’ argument to be

that it was improper to order collection and treatment of

sewage in the combined sewer system area.

Section 602(c) does not prohibit combined sewer

overflows, but “all dry weather flows, and the first blush

of storm flows” must meet applicable effluent

limitations, which for Lake Michigan are comparable to

those imposed by the district court, and new combined

sewers are prohibited. /d., § 602(c\1).46 Combined sewer

flows equal to ten times the average “dry weather flow”

must receive “primary treatment and disinfection with

adequate retention time.” J/d., y O02(X2). These re-

quirements seem to be comparable to the treatment of

‘overflows from the collection and conveyance system

prescribed by the district court. The Illinois regulations

further provide that if necessary to prevent sludge ac-

cumulation or oxygen level depression, flows greater

than ten times the average “dry weather flow” must be

treated by “retention and return to the treatment works

or otherwise.” Jd., § 602(c\3). Thus, it appears that

defendants’ only complaint based on a comparison with

the Illinois regulations relates to the size of the retention

facility required by the court.

The details of the relief to be granted are in large part

matters left to the trial court’s discretion; in any event,

the defendants do not provide us with evidence sufficient

to justify disagreement with what the court found

necessary or evidence sufficient to show that the

marginal increase in cost of building a facility of the

size required by the district court is significantly

greater than the cost of building a facility of the size

presumably contemplated by defendants. Furthermore,

although Illinois permits some combined sewer

overflows, it also, unlike the defendants, requires. some

treatment. The trial court is not limited by the law of

the complaining state with respect to each detail of the

relief to be granted.

The Illinois Pollution Control Board Rules and Regulations

require all effluents discharged into Lake Michigan to meet a

5 mg/liter suspended solids standard and a 4 mg/liter BODs

standard. II]. Pollution Control Board Regulations, supra,

§ 404(d) [P.Ex. 171).

A-40

C. Effluent Limitations

Neither the minimum effluent limitations prescribed

a EPA pursuant to the provisions of the Act nor the

fluent limitations imposed by the Wisconsin agency

under the National Pollutant Discharge Elimination

cs limit a federal court’s authority to require com-

lance with more stringent limitations under the

ederal common law. Nevertheless, those standards

provide guidelines which a court should not ignore.

EPA regulations define “secondary treatment” in

terms of resulting effluent quality, in part, as follows:

(a) Biochemical Oxygen Demand (five-day). (1)

The arithmetic mean of the values for effluent

me gp collected in a period of 30 consecutive days

shall not exceed 30 milligrams per liter.

(2) The arithmetic mean of the values for

effluent samples collected in a period of 7 con-

—o days shall not exceed 45 milligrams per

iter.

(3) The arithmetic mean of the values for

effluent samples collected in a period of 30 con-

secutive days shall not exceed 15 percent of the

arithmetic mean of the values for influent samples

collected at approximately the same times during

the same period (85 percent removal).

(b) Suspended Solids. (1) The arithmetic mean

of the values for effluent samples collected in a

period of 30 consecutive days shall not exceed 30

milligrams per liter.

(2) The arithmetic mean of the values for

effluent samples collected in a period of 7 con-

—- days shall not exceed 45 milligrams per

iter.

(3) The arithmetic mean of the vaiues for

effluent samples collected in a period of 30 con-

secutive days shall not exceed 15 percent of the

arithmetic mean of the values for influent samples

collected at approximately the same times during

the same period (85 percent removal).

40 C.F.R. § 133.102. As noted above, for publicly owned

treatment works the Act requires no more than secon-

A-41

dary treatment until July 1, 1983, when they must im-

Ee the “best practicable waste treatment over the

ife of the |treatment] works.” § 201(gX2XA); see

§ 301(bX2XB). While point sources must comply with

any more stringent requirements of the states in which

they are located, Wisconsin does not appear to have

adopted any more stringent limitations; the discharge

permits issued to the defendants in this case do not im-

pose any more stringent limitations than those in EPA’s

regulations.

‘Both the South Shore and Jones Island plants must

meet the following conditions under their discharge per-

mits:

(1) based on daily samples, a monthly average of

30mg/l BOD; and a weekly average of 45mg/1

BODs, provided that neither the monthly nor the

weekly average ever exceed 15% of the average

BOD; content of the influent during the same

period (85% remova!);

' (2) based on daily samples, a monthly average of

30mg/l suspended solids and a weekly average of

45 mg/| suspended solids, provided that neither the

monthly nor the weekly average ever exceed 15% of

the average suspended solids content of the influent

during the same period (85% removal);

(3) based on twice weekly “grab samples,” a

monthly average fecal coliform count of 200/100ml

and a weekly average fecal coliform count of

400/100ml;

(4) based on daily samples, a monthly average of

lmg/! phosphorus; and

(5) monitoring of both total residual chlorine

and available “free” chlorine in the effluent, but no

specific requirements.

[Permit No. WI-0024775 (South Shore) P.Ex. 63; Per-

mit No. WI-0024767 (Jones Island) P.Ex. 62.] All of the

effluent limitations imposed by the district court, except

the. phosphorus limitation, are significantly more

stringent than those prescribed by EPA or in the dis-

charge permits: in lieu of 30mg/! BOD; and suspended

solids, the district court requires 5mg/I; in lieu of 200

fecal coliform cells per 100ml, the district court requires

A-42

40/100ml; in lieu of the monitoring requirement for

chlorine, the district court requires a free chlorine

residual 15 minutes after exposure. Further, as to BODs

and suspended solids, the district court imposes an ab-

solute maximum of 10mg/! instead of the variable 85%

removal requirement in the EPA regulations and the

discharge permits.

These effluent limitations imposed by the district

court all relate to the hazard presented to Illinois

residents by Milwaukee’s discharge of sewage con-

taining pathogens. Although aware that these

limitations could be consistently met only by construc-

ting what are referred to as “advanced waste treatment”

plants, the court found that such treatment was

necessary to protect Illinois residents from the danger

presented by Milwaukee’s discharges. [Tr. 14248-14249. ]

We are unable to conclude, after a careful examination

of the evidence cited by plaintiffs to justify the

limitations imposed, that this evidence was sufficient.

We recognize that once liability has been established,

a trial court has broad authority to fashion appropriate

relief. This rule is particularly applicable in an area of

law where the appropriate relief will invariably depend

on the circumstances of each case. See, e.g., Wash-

ington v. General Motors Corp., 406 U.S. 109, 115-116

(1972). Nevertheless, a court, unlike a legislature or an

administrative agency, is not free to rest solely upon

what it thinks desirable; there must be evidence to sup-

port its conclusion that the relief granted is necessary to

protect the complaining party from harm.”

To support the 5 mg/l BODs and suspended solids

limitations imposed by the district court, Illinois relies on

the testimony of one witness who asserted that even at

30 mg/| suspended solids “you are going to have a lot of

organics tied up with solids that is going to use up your

" Cf. Milliken v. Bradley, 433 U.S. 267, 280 (1977) (“(Llike

other equitable remedies, the nature of the desegregation

remedy is to be determined by the nature and scope of the

constitutional violation .... The remedy must therefore be

deseo, ‘the condition alleged to offend the Constitution

A-43

chlorine, and that the chlorine can’t even get into.”

Further, Illinois cites the general testimony that organic

matter and suspended solids interfere with effective

chlorination and therefore should be reduced as much as

possible. Illinois also relies on the testimony of one

witness that the kind of treatment required to meet the

5 mg/l! standard is preferable to the kind of treatment

now used by the defendants. And finally, Illinois points

to evidence that one of the defendants’ consultant

Sanitary engineers recommended treatment comparable

to that required to meet the 5 mg/I standard, that three

cities have been required to meet similar limitations,

and that several cities have voluntarily decided to

modify their own treatment facilities in ways similar to

= which would be required under the district court’s

order.‘

The evidence shows that suspended solids and organic

matter interfere with chlorination, and therefore that

there is some correlation between suspended solids and

BODs and effective chlorination. The evidence does not,

however, show how much more effective chlorination

would be a 5mg/! suspended solids and BODs than at

30mg/! suspended solids and BODs; the difference may

be significant or it may be de minimis.*® [Compare Tr.

12398-12400 with Tr. 13399-13400.]

#* We only summarize the evidence in this opinion; the

evidence relied on by Illinois is discussed in detail in the

unpublished order filed with this opinion. See note 31, supra.

#9 Wellings testified that tests had failed to demonstrate any

viruses in effluent containing only 5 Jackson Turbidity Units

per liter. [Tr. 12399.] But Wellings’ work focused primarily on

the virus content of effluent from treatment facilities and not

on removal efficiencies. [Tr. 13399.) For the pur of

determining whether significant benefits will result from

reducing solids and BOD; from 30 mg/I to 5 mg/l, it is not

enough to know that tests have shown viruses in effluent from

a plant designed to meet the 30 mg/l standard and similar

tests have failed to show viruses in a plant designed to meet

the 5 mg/l standard. Nor is it enough to take random influent

samples and random effluent samples, for the virus content of

the sewage necessarily varies. Virus content in the influent

may be much more significant than the particular solids or

(Footnote continued on following page)

That a few cities have adopted the more stringent

standards is hardly enough to prove that those standards

are necessary here, especially when the persons to be

protected are many miles down the lakeshore from the

discharge points. Cf. Comptroller General of the United

States, “Report to Congress: Better Data Collection and

Planning is Needed to Justify Advanced Waste Treat-

ment Construction” (1976) [D.Ex. 1105]. (pointing out

that several cities began construction of advanced waste

treatment facilities without adequate corisideration of

the expected costs and benefits of such facilities).

Our difficulty with the evidence reviewed above is

that it consists merely of conclusions of the experts and

does not explain why the particular standards are

necessary to protect the health of Illinois residents.*° We

are asked to accept the conclusions on faith. It is dif-

ficult for us to see how the opinion of an expert can be

intelligently appraised unless it is supported by reasons.

1% continued

BODs level the plant is designed to achieve. Furthermore, the

flow rates at the time the tests are conducted are important,

for it-is virtually meaningless to say that a plant designed to

meet the 5 mg/I! standard performs better than an overloaded

plant designed to meet the 30 mg/l! standard. [See Tr. 12377-

12378 (Wellings).]

50 While Wellings, who comes the closest to providing

evidentiary support for the suspended solids limitations the

court imposed, testified that “the problem with 30 milligrams

per liter is you are going to have a lot of organics tied up with

solids that is going to use up your chlorine, and the chlorine

can’t even get into,” and there would “still” be “a problem

with disinfection,” she did not say the same would be true of

any figure between thirty and five. She went on to say that

she did not “know how she would equate Jackson Turbidit

Units [on which her relevant experience was based] wit

milligrams, . . . because you would have to know size, sha

and all that, source, because of the test itself,” and then said 5

mg/| “would be well in the ball park,” and she “wouldn’t want

any more than five.” This is a speculative and uncertain basis

for the court’s implied conclusion that effluent limitations

specifically adop by EPA and the Wisconsin agency are

insufficient to protect the health of people more than 25 miles

from the discharge points. See also note 49, supra.

A-45

This is especially so when the opinion is offered to sup-

port effluent limitations markedly lower than (a) those

established by EPA in its regulations, (b) those es-

tablished by the state permit authority with the duty of

protecting residents in the immediate environs of the

discharges, and (c) those established by the complaining

State itself for waters other than Lake Michigan.*! The

record is conspicuously silent as to the reasons these less

stringent standards were found adequate to protect per-

sons in the immediate environs of the discharges by ex-

perts who were presumably as dedicated to the protec-

tion of public health and the environment as those on

whose conclusions plaintiffs rely, and why those reasons

are inapplicable here, especially when the discharges cc-

cur at least 25 miles from any of the persons to be

protected. In short, plaintiffs point to nothing in the

record, and we have found nothing, to connect the

effluent limitations imposed by the district court with

the protection of Illinois residents. If enforcement of the

limitations imposed in the discharge permits proves in-

adequate to protect Illinois residents, then more

stringent limitations may become necessary. But on the

record before us, we cannot sustain the district court’s

order in this respect.** :

51 Tllinois Pollution Control Board Rules and Regulations,

supra, § 404 [P.Ex. 171].

82 In the statement of facts contained in Illinois’ first brief

we were told: “Not only does sewage provide the basic element

of phosphorus [which is necessary for eutrophication], but also

it contains a whole series of nutrients... ‘a very rich

nutrient broth’ for aquatic plant growth (Tr. 2889).” Illinois

does not. however, attempt to sustain the effluent limitations

imposed by the district court on this basis. Indeed, it is not

even clear that this “fact” is relevant to the effluent

limitations. There dges not appear to be any evidence as to the

relative “nutrient” content of effluent from treatment works

designed to meet the 30 me/! suspended solids and BODs

standards and those designed to meet the 5 mg/I standards.

Presumably, the nutrient content of effluent from a plant

meeting the 5 mg/l! standards is lower than that of a plant

meeting the 30 mg/| standards. But whether the difference is

on ign with respect to eutrophication of Lake Michigan is

not clear.

A-46

Also relevant to this aspect of the remedy is Congress’

treatment of publicly-owned treatment facilities in the

1972 and 1977 amendments to FWPCA. Secondary

treatment facilities, which are not capable of meeting

the 5 mg/l limitations, are permitted under 33 U.S.C.

§ 301(bX1XB) until July 1, 1983, when “the best prac-

ticable waste treatment over the life of the works”

becomes the requirement. Although Congress did not

attempt to answer the public health questions, leaving

them to EPA and state agencies acting under EPA’s

supervision, the provisions of the Act are at least an in-

dication of Congressional reluctance to risk pushing

municipalities beyond the limits of their resources. The

1977 amendments, summarized above, show a deepening

concern on this score. Congress’ position in the Act does

not, as we have held, mark the limits of our power in

this common law nuisance action, but the policy un-

derlying that position, to which we should give some

deference, is at least a reason not to allow the nature of

the action to cause a relaxation of the requirements of

evidentiary foundation that would normally be observed

in other kinds of actions.

It is not clear whether the fecal coliform limitation and

the free chlorine residual requirement imposed by the dis-

trict court can be met with secondary treatment. In any

event, the record support for these limitations is as

deficient as it is for the suspended solid and BODs

limitations, and we are provided with no explanation of

why such limitations were not included in the NPDES

permits for the plants and the federal regulations.“

83 Plaintiff also relies on Illinois statutory and common law.

The district court indicated that under any of the asserted

grounds for relief the result would be the same. |App. 20-

21.] But it is federal common law and not state statutory or

common law that controls in this case, Jllinois v. Milwaukee,

supra, 406 U.S. at 107 & n. 9, and therefore we do not address

the state law claims.

54 In addition we note that Illinois’ general effluent standard

fecal coliform limitation is 400/100 ml. See Illinois Pollution

Control Board Rules and Regulations, supra, § 405 [P.Ex.

171]. The “water quality” fecal coliform limitation for Lake

(Footnote continued on following page)

A-47

Our treatment of the effluent limitations imposed in

the district court’s order is not inconsistent with our

treatment of the overflow requirements of the order.

First, and we think most important, the evidence

presented supports the district court’s finding that the

defendants’ discharges of raw sewage, whether diluted

or not, pose a significant’ risk of injury to Illinois

residents. Raw sewage contains vastly higher concen-

trations of pathogens than treated sewage. Millions of

gallons of raw sewage are dumped into the water each

year from the 239 overflow points on the defendants’

sewage systems, most frequently during wet weather,

but also during dry weather. Lake currents can and do

oe carry the pathogens into Illinois waters close

to snore.

Second, no one even attempts to justify such dis-

charges as harmless or insignificant. As we have said, it

is arguable that the Act itself prohibits discharges of

raw sewage. The Wisconsin agency has taken steps to

eliminate some overflows and to “correct” others

although giving the defendants a longer time to take the

necessary action than did the district court. But as

stated above the defendants have conceded that com-

= with the deadlines imposed by the court is feasi-

e.

On the other hand, the evidence supporting the

effluent limitations is weak, at best. They are more

stringent than those required by Congress, EPA, and

the Wisconsin discharge permit issuing agency. And

there is no evidence as to why the limitations deemed

adequate to protect the inhabitants in the vicinity of the

discharges are inadequate to protect the residents of II-

linois who are at least 25 miles away.

The phosphorus limitation imposed by the district

court can be achieved using secondary treatment; an

“4 continued y

Michigan is 20/100 ml. Ill. Pollution Control Board Rules and

Regs., supra, § 206(d) [P.Ex. 171]. For the effect of a more

stringent water quality limitation than effluent limitation see id.

§ 201(a) |P.Ex. 171). There does not a ar to be any effluent

limitation specifically requiring a chlorine residual, either

“free” or total.

A-48

identical limitation is prescribed in the defendants’ dis-

charge permits.®

We affirm the district court’s order to the extent that

it requires the elimination of all sewage overflows and

imposes a 1 mg/l phosphorus effluent limitation. We

reverse the court's order insofar as it imposes suspended

solids, BODs, fecal coliform, and free chlorine residual

effluent limitations more stringent than those prescribed

in defendants’ discharge permits. The case is remanded

to the district court with directions to modify the injunc-

tive order in conformity with the rulings of this court.

AFFIRMED IN PART,

REVERSED AND REMANDED IN PART.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

55 Tllinois’ phosphorus effluent standard is 1 me/l. its water

uality standard for Lake Michigan is .007 mg/I. See Illinois

ollution Control Board Rules and Regulations, supra, §§ 407,

206(c) [P.Ex. 171). .

USCA 4412—Midwest Law Printing Co., Inc., Chicago—4-26-79—300

B-1

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

ARGUED: May 24, 1978

SUBMITTED: October 12, 1978

April 26, 1979.

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. PHILIP W. TONE, Circuit Judge

Hon. ROY W. HARPER, Senior District Judge*

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, Appeal from

the United

and States District

Court for the

PEOPLE OF THE STATE OF MICHIGAN, Northern

Intervening Plaintiff-Appellee, District of

Illinois, East-

ern District

No. 77-2246 VS.

No. 72-C-1253

CITY OF MILWAUKEE, THE SEWERAGE John F.

COMMISSION OF THE CITY OF Grady, Judge

MILWAUKEE, and

THE METROPOLITAN SEWERAGE

COMMISSION OF THE COUNTY OF

MILWAUKEE,

Defendant-Appellants.

* The Honorable Roy W. Harper, Senior District Judge for the

Eastern and Western Districts of Missouri, is sitting by designa-

tion.

B-2

ORDER

This order supplements our published opinion and should be

read in connection with that opinion; the order is not complete

in itself. Since the subjects of this order are only the evidentiary

support for the district court’s findings of fact and the evidence

relied on by Illinois to support the 5 mg/l BODs and suspended

solids effluent limitations, they do not meet the criteria for

publication stated in Circuit Rule 35.

‘.

Sufficiency of the Evidence Supporting Findings of Fact

A. Discharges of Sewage Containing Pathogens

The District Court found that the defendants dump signifi-

cant amounts of sewage containing pathogens into Lake

Michigan. [Tr. 14214.] Milwaukee cannot seriously contend

that the evidence was insufficient to support this finding.

i. Discharges of Raw Sewage

In its Wisconsin Pollutant Discharge Elimination System per-

mit applications for the Jones Island Sewage Disposal Plant

(Jones Island plant) and the South Shore Waste Water Treat-

ment Plant (South Shore plant), both dated November 7, 1973,

the City Commission listed 18 bypass points and 31 overflow

points on the Metropolitan (or Main) Interceptor System from

which untreated sewage would flow directly or indirectly into

Lake Michigan and rivers that flow into the lake. [Plaintiff's

Exhibits (P.Ex.) 62 and 63.] The discharge permits issued for

the plants require the commission to submit quarterly reports

showing the discharges from selected overflow points. [P.Ex. 62

(Jones Island plant: Permit No. WI-0024767, Part Il. D.6,

d.); P.Ex. 63 (South Part II. D.6, d.); P.Ex. 63 (South Shore

plant: Permit No. W1I-0024775, Part II. E.7, c.).] The com-

mission’s report for the first quarter of 1976 indicates that in

March the discharges from just 11 overflow points was 646.46

million gallons of untreated sewage. [P.Ex. 56; see P.Ex. 55 (2d

B-3

quarter 1976 discharge report).] At trial, Donald Wieland,

Director of Engineering for the Commission, testified that

“‘diluted,’’ but untreated, sewage flowed from the overflow

points into Lake Michigan and Milwaukee rivers.

The City of Milwaukee’s local sewer system! consists of two

parts: (1) a so-called ‘‘separate sewer system,’’ which carries

only sewage to the Metropolitan Interceptor System, and (2) a

‘combined sewer system,’’ which carries storm water and

sewage to the Metropolitan Interceptor System. [Tr. 384;

386-387; 390-391; 426-428.] The separate sewer system has 78

overflow points (called ‘‘crossovers’’) at which the raw sewage

flows into the city’s storm sewers and then into either Lake

Michigan or rivers that flow into the lake. [Tr. 428; 437-438;

*448-449.] An additional 112 overflow points are built into the

combined sewer system (called combined sewer overflows or

**CSO overflows’’) at points where the combined sewer system

connects with the Metropolitan Interceptor System. [Tr.

153-157; 386-387.] If the flow from the combined sewer is

greater than the Metropolitan System can accommodate at the

overflow point, the storm water and raw sewage are discharged

into rivers that flow into Lake Michigan. [Tr. 153-155;

386-387.]

Most of the overflow points are either pumping stations or

what are called ‘‘gravity overflows.’’ [Tr. 134-135; 398;

442-444; 448-451.] ‘‘These pumping stations are installations of

pumps that are activated by electrodes so that when the water

level in a sewer system gets to a certain point ... the pumps will

automatically start operating and discharge the flow into a

storm sewer [which empties into a river that flows into the lake]

or directly to a water course [that flows into the lake].”’ [Tr.

134.] At the gravity overflows, ‘‘[wjhen the sewage reaches a

certain level in the ... sewer system, it reaches a bypass pipe, and

runs off into, again, either a storm sewer or the surface waters.”’

[Tr. 134-135; see 230-232.] Because these overflow points are

I Although the City apparently received a discharge permit covering

these sewers, the only evidence of that permit we find in the record is a

modification. [D. Ex. 1110; see also Tr. 156.]

B-4

triggered by the level of sewage, a blockage in the sewers that

causes the sewage level to rise will activate the pumps or cause

the sewage to flow through the pipes that lead into the water or

storm sewers, even if the sewer capacity would otherwise be ade-

quate. In some places on the Metropolitan Interceptor System,

pipes of large diameter are connected to pipes of a smaller

diameter, which causes an overflow whenever the larger pipe

carries an amount exceeding the capacity of the smaller pipe.

[Tr. 139-140; 333-334.] Ground water and water from the storm

sewers sometimes ‘“‘infiltrates’’ or flows into the sanitary

sewers, increasing the liquid flow [Tr. 148, 152], and therefore

during wet weather overflows are especially likely.

In addition, the City of Milwaukee and its Sewerage Commis-

sion operate two ‘‘flushing tunnels’’ that clean the Milwaukee

and Kinnickinnic Rivers by pumping water from Lake Michigan

to upstream points in the two rivers and letting the water flow

back into the lake. The purpose and effect of this flushing are to

increase the flow of the two rivers and thereby wash any sewage

deposited in the rivers down into Lake Michigan. [Tr. 379-383;

P.Ex. 162 (Kinnickinnic River).}

2. Discharges of Inadequately Treated Sewage

The district court also found that because sewage is often in-

adequately treated at both the Jones Island plant and the South

Shore plant, the effluent from those plants also sometimes con-

tains pathogens. [Tr. 14214.] Effluent from the Jones Island

plant is discharged into the Milwaukee Harbor, and flows from

there into Lake Michigan. Effluent from the South Shore plant

is discharged directly into the lake.

In evaluating the performance of the two plants, the district

court relied on two indicators: (1) five day biochemical oxygen

demand of the effluent (BODs), and (2) suspended solids re-

maining in the effluent. [Tr. 14214-14215.]

2 The evidence supporting the court’s finding that sewage contains

disease causing viruses and bacteria is discussed below.

B-5

BODs and suspended solids are generally recognized to be

significant factors for evaluating the degree_of pollution in

water. See, e.g., Sawyer, ‘‘Activated Sludge Modifications’’, 32

Jl. W.P.C. Fed. 232, 235-241 (1960) [Defendant’s Exhibit

(D.Ex.) 1208]. Every applicant for an NPDES permit under the

Act must submit data showing the BODs and the suspended

solids content of the applicant’s discharges. [E.g., P.Ex. 62

(EPA, National Pollutant Discharge Elimination System: Ap-

plication for Permit to Discharge Wastewater, Standard Form

A — Municipal, question 14).}

BODs and suspended solids are particularly significant in-

dicators of plant performance when the issue is whether the ef-

fluent contains significant numbers of viruses or bacteria.

BOD, is an indirect measure of the biodegradable organics in

the effluent. See Standard Methods for the Examination of

Water and Wastewater, 513, 544 (14th ed. 1975). Chlorine, con-

tained in hypochlorous acid, is the only disinfectant used at

either the Jones Island plant or the South Shore plant. [P.Ex.

62, 63.] Ammonia or nitrogen in organic material will react with

chlorine to form compounds that are either ineffective, or less

effective than hypochlorous acid as viricides and bactericides.

[Tr. 12064-12067, 3083-3084, 3086, 2204-2205.] See Sproul,

‘*Removal of Viruses by Treatment Processes,”’ in Berg, et al.

(ed.), Viruses in Water 167, 173-175 (1976) [P.Ex 140]. A

relatively high BODs implies the presence of a significant

amount of organic material, which will render chlorine either in-

effective or less effective as a viricide and bactericide. Suspend-

ed solids, either organic or inorganic, may contain significant

numbers of viruses and bacteria. [Tr. 12067-12071, 12,378,

12,398, 3083-3084, 2205.] Even chlorine not rendered less effec-

tive by the presence of organic material cannot ‘‘penetrate very

far’’ into suspended solids to ‘‘kill embedded virus.’’ [Tr.

12067-12068; see id. 12,398.] Thus, a large amount of BOD,

and suspended solids in the effluent indicates that any chlorine

added to the sewage entering the treatment plant will be ineffec-

tive or less effective, thereby increasing the likelihood that

disease causing viruses or bacteria in the influent remain in the

effluent. [See Tr. 12398, 12401-12402, 3083-3085.]

B-6

Under the discharge permit issued by the Wisconsin Depart-

ment of Natural Resources for the Jones Island and South

Shore plants, the average daily BODs and suspended solids con-

tent of the effluent may not exceed 30 miligrams per liter (mg/1)

in any 30-day period. [P.Ex. 62 (Permit No. W1I-0024767, Part

Il, ‘‘Daily Effluent Limitations’’); P.Ex. 63] EPA regulations

adopted pursuant to the Act established the same maximum

levels for BODs and suspended solids. 40 C.F.R. §133.102

(a),(b).

There are two respects in which the operation of the plants

was shown to have resulted in the discharge of inadequately

treated sewage into the iake. First, the permits’ 30-day average

limitations of 30 mg/l have sometimes been violated by the

piants.> Second, whether or not the 30-day average limitations

were met, discharges on individual days were greatly in excess of

the permissible monthly average of 30 mg/1 per day.

3 The Jones Island plant failed to meet the suspended solids limita-

tion in each of the first three months of 1974. In 1975 that plant failed

to meet the BOD, limitation in five months and the suspended solids

limitation in eight months. In 1976 the plant met the BODs limitation

in 12 months but the suspended solids limitation in only six months.

{[P. Ex. 123, 125.]

Similar violations of the permit limitations for the South Shore

plant appear in the records for 1975 (BOD; limitation met in only five

months; suspended solids once) and 1976 (BOD, limitations met in

seven of 11 months recorded but suspended solids in only two of those

months). [P. Ex. 92, 93, 94.]

4 In 1974, while meeting the 30-day average for BOD, in all periods,

the Jones Island plant ran as high as 98 mg/1 on one day. The high for

an individual day’s suspended solids count that year was 329 mg/1.

[P. Ex. 125.] In 1976 the plant recorded a BOD, count as high as 170

mg/1I and a suspended solids count as high as 392 mg/1 for individual

days. [P. Ex. 123, 125.] In the first four months of 1977, Jones Island

recorded a BOD, count as high as 100 mg/1 and suspended solids

counts as high as 388 and 237 mg/1. [D. Ex 1302, 1303.]

(Footnote continued on following page)

B-7

An expert called by plaintiffs who had studied the virus con-

tent of effluents from several sewage treatment plants in Florida

[Tr. 12291-12293], Flora Wellings, Director of the

Epidemiology Research Center in Tampa, Florida, testified that

if the suspended solids content of the effluent was 199 mg/1, a

count frequently exceeded on a daily basis by both plants, ‘‘You

are still going to have a lot of virus coming through....’’ and

chlorination would not be effective. [Tr. at 12397.] Dr. Wellings

characterized 15-30 mg/1 of suspended solids as ‘‘very low.”’

[Tr. 13349-13350.] But she also pointed out that even at 30 mg/1

there would be a ‘‘lot of organics,’’ which would either combine

with the chlorine rendering it a less effective viricide or protect

embedded viruses from any chlorine at all. [Tr. 12398.] In light

of the operating reports from Jones Island and South Shore

reviewed above, it is apparent that if Milwaukee’s sewage con-

tains pathogens, some of them are likely to survive the treat-

Footnote 4 (continued)

The South Shore plant experienced similar problems. In 1975, its

highest BOD, count for an individual day was 372 mg/1 and its

highest suspended solids count 1,115 mg/1. [P. Ex. 92.] In 1976 on in-

dividual days the plant’s BOD, count exceeded 300 mg/I and its

suspended solids count reached 340 mg/1. [P. Ex. 93, 94.]

In comments to a monthly report during a four month period in

which the Jones Island plant never met the suspended solids limita-

tion, the plant managers said,

The average effluent suspended solids concentration in ex-

cess of the 30 mg/1 limitation are due to the continued in-

ability to remove solids as they are generated. Ideally, the

mixed liquor suspended solids should be in the range of

2000 mg/1 to 3000 mg/1 with present plant loadings. Dur-

ing the month of February, the mixed liquor suspended

solids averaged 4300 mg/1 with a maximum day’s average

of 4800 mg/1.

[D.Ex. 1302, Comments for the February 1977: WPDES Permit No.

WI1-0024767, at 1; see also comments for March and April, 1977 in

D.Ex. 1302.]

B-8

ment at these plants and be discharged into Lake Michigan, as

the court found.

3. Presence of Pathogens

The evidence established that pathogens are found in the

sewage discharges of every urban center, although the record

contains no evidence on the subject with respect to Milwaukee

in particular.

Joseph Melnick, Professor of Virology and Epidemiology at

the Baylor College of Medicine, testified that ‘‘every city the

size of Milwaukee will have carriers of enteroviruses in the city

who will be excreting viruses into the sewage.’’ [Tr. 2206; see id.

2174, 2175.] Edwin Geldreich, Director of EPA’s

Microbiological Treatment Branch in Cincinnati, Ohio [Tr.

3048], testified to the same effect with respect to both viruses

and bacteria. [Tr. 310! .] Experts studying enteroviruses in waste

water estimate that untreated sewage will contain an average of

7000 infectious virus particles, or plaque forming units, per

liter. (Tr. 2184-2185.] See Sproul, supra at 176 [P.Ex. 140].

Defendants’ expert, Dean Cliver, Professor, Food Research In-

stitute and Department of Bacteriology, University of Wiscon-

sin, acknowledged on cross-examination that one gram of feces

from an infected person ‘‘could contain literally millions of

enteric viruses’’ [Tr. at 10278], i.e., viruses that inhabit the

gastroenteric tract of a human being. Many enteric viruses cause

diseases in humans, including polio, pleurodynia, myocarditis,

meningitis, and encephalitis. [Tr. 2163-2170; see id. 2188.]

Although plaintiffs did not conduct tests to demonstrate that on

a particular day Milwaukee’s sewage contained disease-causing

viruses, there was evidence that known tests are difficult and in-

effective for determining the presence of some such viruses. The

omission is not fatal, for the evidence presented adequately sup-

ports the court’s inference that Milwaukee’s sewage contains

disease-causing viruses and bacteria.

Although it is possible to test water for the presence of

specific pathogenic microorganisms, [Tr. 3099;] Standard

Methods for the Examination of Water and Wastewater,

B-9

954-966 (14th ed. 1975), there are practical difficulties in con-

ducting such tests on a large scale. Therefore, those studying

water pollution have generally focused on various ‘‘indicator

organisms’’ rather than on the pathogens themselves. See Stan-

dard Methods, supra, 875, 954-955. [Tr. 3056-3064, 3099-3100.]

Fecal coliform is one commonly used ‘‘indicator organism.”’

[Tr. 3097-3100.] As the number of fecal coliform present in

water increases, so too does the probability that the water will

contain pathogenic bacteria. [Tr. 3102-3103.] Geldreich testified

that although the relationship between the number of fecal col-

iform present in a water sample and the number of salmonella,

one of the most common bacterial pathogens, has not been

established, if in 100 samples there are 1000 fecal coliforms/100

milliliters (ml), then in about 95 of those same samples

salmonella will also be found. [See Tr. 3097-3098, 3102.]

Geldreich cautioned, however, that negative results cannot be

relied on to assure the absence of either pathogenic viruses or

pathogenic bacteria. [Tr. 3101; see id. 2201; 12083-84.]

The fecal coliform counts in the sewage discharged from the

overflow points on defendants’ sewage collection system is

sometimes as high as 23,000,000 per 100 ml. [P.Ex. 55

(Overflow #036 Menomonee and North, May 16, 1976; id. June

14, 1976); see Tr. 3117-3118.] While warm-blooded animals

other than man contribute to the fecal coliform content of

Milwaukee’s raw sewage discharges [Tr. 3114-3115], their con-

tribution is likely to be relatively minor. It is highly probable

that Milwaukee’s sewage contains significant numbers of

pathogenic viruses and bacteria.

Furthermore, the operating data for both the Jones Island

plant and the South Shore plant indicate that the fecal coliform

count in the effluent often exceeds 1000/100 ml. In March 1977,

the effluent fecal coliform counts at Jones Island exceeded

1,000/100 ml on six of the 14 days measured, with a high of

17,000/100 ml. [D.Ex. 1303, see also P.Ex. 123 (Operating data

for 1975).]

For the same reasons pathogenic viruses are likely to survive

the treatment at these two plants, pathogenic bacteria are likely

B-10

to survive. [See Tr. 3082-3085.] The operating data for the two

plants showing high fecal coliform counts in the effluent con-

firm this conclusion since effective chlorination presumably

would also reduce fecal coliform.

B. Transport of Sewage Discharged at Milwaukee to Illinois

Waters

The district court found that ‘‘bacteria and viruses number-

ing literally in the millions are transported live and intact from

Milwaukee to Illinois waters.’’ [Tr. 14217.] This finding is not

clearly erroneous.

Geldreich testified that at temperatures between 5 and 20

degrees centigrade (Celsius), 41 and 68 degrees Fahrenheit, 90%

of the total number of bacteria discharged on a given day will

die within 2 to 4 days. [Tr. 3092.] There are two factors,

however, that may either extend the time during which bacteria

discharged on a particular day will affect the receiving body of

water or increase the significance of the discharge on a given

day: ‘‘persistence’’ and ‘‘regrowth.’’ If there are sufficient

nutrients ‘‘and a set of conditions’’ in the receiving body of

water, then bacteria may ‘‘persist’’ at the original density for a

period of 2 to 4 days before beginning to ‘‘die-off:’’ [Tr.

3092-3095.] Thus, bacteria may live for a period of 4 to 8 days.

[Tr. 3095-3096.] Geldreich testified that ‘‘persistence’’ is likely

to occur in improperly treated or untreated sewage. [Tr.

3094-3095.] As the term ‘‘regrowth’’ suggests, bacteria may

reproduce after being discharged into a body of water, provided

of course that there are sufficient nutrients available. [ir.

3093-3094.] Geldreich testified that such ‘‘regrowth’’ may result

in the production of ten times the original number of bacteria.

[/d.]

As to the die-off rate for enteric viruses, Melnick testified that

at temperatures of 70 degrees Fahrenheit, viruses will survive

for approximately two weeks, but at temperatures of 40-50

degrees Fahrenheit, they will survive for ‘‘months.”’ [Tr.

2199-2200.] In colder water, viruses may live indefinitely. [/d.]

If currents along the shore of Lake Michigan from Milwaukee

B-11

to Illinois travel at speeds sufficient to reach Illinois in less than

4 to 8 days, then bacteria or viruses discharged at Milwaukee

will be carried ‘‘live and intact to Illinois waters.”’

The distance from the center of Milwaukee Harbor, where

the Jones Island plant is located, to the Illinois border is about

37 statute miles, about 60 kilometers (km) [Tr. 2379, 2010];

from the South Shore plant the distance is only about 25 statute

miles, about 40 km [See Tr. 8944-8945]. Captain James Verber,

an oceanographer specializing in water transport and water

movement, testified that data collected under his supervision

between 1962 and 1964 indicate that currents between

Milwaukee and Illinois will travel toward the south at speeds

sufficient to carry suspended pollutants 40 miles about 12 times

each year. [Tr. 2392.] More specific was Verber’s testimony that

during the period he studied there were six occasions on which

the current flowed south for 7.5 days at a rate of about 10 centi-

meters per second (cm/sec), and therefore covered a distance of

about 50 miles. [Tr. 2379-2381.] There were other occasions on

which the current traveled about 40 miles in 2.5-4.9 days. [/d.]

On one occasion the current traveled at a rate of 40-51 cm/sec,

covering the distance in about 1.75 days. [/d.] Verber testified

that the data presented in Sato & Mortimer, ‘‘Lake Currents

and Temperatures Near the Western Shore of Lake Michigan’’

[P.Ex. 38], indicate that the frequency of transport from

Milwaukee to Illinois might be greater than 12 in some years.

[Tr. 2392.] Verber pointed out that the data showed one occa-

sion when the currents from Milwaukee to Illinois persisted for

19 days and during that period at speeds sufficient to cover the

40 miles in less than 4 days. [Tr. 2382.]

Gabriel Csanady, an oceanographer for the Woods Hole

Oceanographic Institution, also estimated that currents carrying

pollutants would flow from Milwaukee to Illinois for sufficient-

ly long periods of time and at sufficient speeds to cover the 37

miles about 12 times a year. [Tr. 2058-2060.] Csanady testified

that currents persisted in one direction on an average of about 4

days, sometimes as long as 7 days and frequently for 1 or 2 days.

{[Tr. 2011, 2032, 2034.] See Csanady, ‘‘Diffusion and Disper-

sion’’, Part 2 in 2 Environmental Status of the Lake Michigan

B-12

Region, 103, 115-116 (1975) [P.Ex. 201]. Csanady also testified

that wind driven current speeds of 30 cm/sec or 16 miles per day

were ‘‘typical’’ in Lake Michigan, but speeds of 50 cm/sec or 27

miles per day also have been recorded. [Tr. 1950-1952, 2009.]

See Diffusion and Dispersion, supra, at 116 [P. Ex. 20].

Even defendants’ experts, Donald Pritchard and Harry

Carter, testified that currents between Milwaukee and Illinois

flow toward the south for sufficient periods at rates sufficient to

carry water from Milwaukee across the Illinois border on an

average of four times per year. [Tr. 7168 (Pritchard); 8666-8671

(Carter); see D.Ex. 905 (Table 1); D.Ex. 1163 (Tables 2 and 4).]

A table prepared by Carter and headed ‘‘Southerly Flows Suffi-

ciently Long and/or Strong to Transport Effluent from

Milwaukee to Illinios’’ [D.Ex. 905, Table 1], shows that in the

period studied there were four occasions on which effluent

released at Jones Island would have traveled across the Illinois

border; the table shows that on these four occasions the effluent

would have crossed into Illinois waters after about 4 days, 6

days, 5 days, and 2 days. [D.Ex. 905.] There were at least seven

occasions on which effluent released at South Shore would have

traveled the shorter distance into Illinois waters. [D.Ex. 1163,

Table 4.]

If, as the experts testified, bacteria discharged into Lake

Michigan will survive for a period of four to eight days and

viruses will survive for a minimum of two weeks and longer in

periods of cool temperatures, then currents sufficient to travel

the distance between Milwaukee to Illinois in less than four days

will carry bacteria and viruses into Illinois waters. Defendants

contend, however, that there are four factors that are not ac-

counted for in the die-off rates for bacteria and viruses given by

plaintiff’s experts: (1) sedimentation, (2) biological inactiva-

tion, (3) predation, and (4) ultraviolet radiation. These factors

assertedly reduce the number of bacteria or viruses that would

survive the trip from Milwaukee to Illinois.

Defendants contend that sedimentation operates to reduce

the number of bacteria and viruses that travel to Illinois at

several points along the way. First, the Jones Island effluent is

B-13

discharged into the Milwuakee Harbor, which allegedly serves

as a settling basin. [Tr. 7290-7292, 7304.] The Milwaukee and

Menomonee Rivers also flow into the Milwaukee Harbor;

therefore, discharges into these rivers from the overflow points

on defendants’ sewage system are also subject to whatever set-

tling occurs in the rivers or the harbor. [Tr. 5174-5176.] Many

of the overflow points, however, discharge into storm sewers or

rivers that lead directly to the lake. Some settling may occur in

sewers or rivers, but the sewage from South Shore, which is

discharged directly into the lake, is, of course, not subject to

these settling effects. As to those discharges that are subject to

sedimentation in the harbor, and the rivers leading to the har-

bor, two points seem dispositive. First, plaintiff’s introduced

evidence [P.Exs. 147 and 148] showing fecal coliform counts at

the harbor entrance, where the water flows into Lake Michigan,

as high as 32,000 fecal coliform per 100 ml and 37,000 fecal col-

iform per 100 ml. These counts were taken using the membrane

filter test, which may understate the fecal coliform count that

would result from using the more sensitive multiple tube test

(‘‘most probable number’’ test) by factors of 10 or 100. [Tr.

3070-3073.]

Second, viruses and bacteria settle out if the particles in which

they are embedded or to which they are adsorbed settle. [Tr.

2260, 10244-10245.] Pritchard stated generally that the ‘‘pro-

cesses by which any living organism that drifts with the water ...

can disappear’’ include sedimentation, and that such living

organisms are ‘‘usually ... attached to other particles which

have a density greater than water.’’ [Tr. 7014-7015.] Never-

theless, on cross-examination, William Katz, Director of Plan-

ning and Development for the Milwaukee Metropolitan

Sewerage District, testified that the specific gravity of fecal

material is close to that of water, and therefore would be ‘‘one

of the last things’’ to settle out. [Tr. 11400.] The trial court

could properly have relied on Katz’s testimony rather than Prit-

chard’s, and found sedimentation of viruses and bacteria to be

minimal in the harbor, rivers, or sewers.

Defendants also contend that along the path between

Milwaukee and Illinois particles settle out taking their adsorbed

B- 14

viruses and bacteria with them. But, as observed above, if the

viruses and bacteria are embedded in or adsorbed to particles

with densities less than that of water, sedimentation will be

minimal. Since sedimentation in either the harbor or the lake

will not kill or deactivate either viruses or bacteria, if they are

resuspended by turbulence in the water or rapid currents in

rivers or the lake, they may still be carried ‘‘live and intact’’ to

Illinois water. [Tr. 10322-10323, 8861-8863.] Although the four

to eight day life span of discharged bacteria makes resuspension

and transport less significant as to them, viruses may live for

months or indefinitely in cold water. Therefore, sedimentation

of viruses may be of little, or no, practical significance.

Defendants’ argument that ‘‘biological inactivation’’ is not

included in the die-off rates testified to by plaintiff’s witnesses

seems to be erroneous. In the first place, the coliform die-off

rates presented in Canale, et al., ‘‘Water Quality Models for

Total Coliform,’’ 45 Ji. W.P.C. Fed. 325, 330-332 (1973), on

which plaintiffs’ expert Csanady relied [Tr. 2050], and which

are cited in evidence presented by defendants [D. Ex. 85 at

73-74], are based on studies in which water from Lake Michigan

was used. Any bacteria or algae present in Lake Michigan were

also present in the samples; any ‘‘biological inactivation’’ that

would take place in Lake Michigan would also occur in the

samples. [See Tr. 2300-2301.] Moreover, it is unlikely that such

biological inactivation’? as may occur [Tr. 10226-10229] is

significant. [Tr. 2297-2299.] Melnick testified that although

**biological inactivation’’ may occur, it is much less significant

than water temperature as a factor affecting the die-off rate.

{[Tr. 2297-2299.] Cliver who participated in the study described

in Hermann, ef al., ‘‘Persistence of Enteroviruses in Lake

Water,’’ Applied Microbiology 895 (1974) [D.Ex. 38], testified

that viruses injected into sterilized water from Lake Wingra in

Madison, Wisconsin, lived longer than similar viruses injected

into unsterilized lake water in a dialysis bag that was placed

back into the lake. [Tr. 10227-10229.} Relying on that evidence

5 Any viruses or bacteria embedded in or adsorbed to organic

material that does settle to the bottom may be eaten by macrobenthic

organisms. See discussion of ‘‘predation’’, infra.

B-15

and data collected in an earlier study, Cliver and his colleagues

suggested that proteolytic enzymes produced by bacteria and

other organisms in Lake Wingra accelerate deactivation of some

types of viruses. See ‘‘Persistence of Enteroviruses,’’ supra, at

895 [D.Ex. 38.]. Assuming that bacteria or other organisms that

produce proteolytic enzymes do exist in Lake Michigan, that

fact does not substantially undermine the conclusion that the

discharges at Milwaukee will affect Illinois. For as Cliver

testified, notwithstanding any such ‘‘biological inactivation,”’

deactivation of any viruses discharged into Lake Michigan in

the winter could take months. [Tr. 10314, 10315.}®

The third factor that defendants contend is not included in

the die-off rates, but which affects the number of bacteria or

viruses that would survive the trip from Milwaukee, is predation

or grazing. Since bacteria or viruses are frequently adsorbed to

Organic material, if the organic material is ingested by

organisms living in the lake, then the bacteria or viruses are also

consumed. There is no doubt that organic material in the lake is

consumed by the various living things in the lake. [E.g. Tr.

10086.] Defendants principally rely upon the testimony of

Robert Otto, an aquatic biologist at Johns Hopkins University,

and a report [D.Ex. 1321] prepared by him. Otto testified that

macrobenthic organisms, which live on or in the bottom of the

lake, ‘‘eat just about anything they can get their hands on that is

on the bottom ....’’ [Tr. 10082; see Tr. 10084.] Otto further ex-

plained that:

In some cases [the macrobenthic organisms] don’t

have the grinding capabilities to break down some

kinds of organic material, but bacteria, of course.

often have the ability to use these materials. If you in-

gest a particle which has a nice coat of bacteria, which

are a live food source, these organisms can then digest

the bacteria but not the particle, so they just clean the

6 The bacteria ordinarily found in sewage do not produce the pro-

teolytic enzymes that accelerate deactivation of viruses. [Tr.

10326-10329.]

B-16

particle off and send it back out to be recolonized by

the bacteria.

[Tr. 10084-10085.}] Otto does not refer to viruses but we assume

they are subject to the same predation as bacteria. That

macrobenthic organisms digest the bacteria on the outside of a

particle is significant, but not dispositive, since we are also con-

cerned about bacteria or viruses embedded in the solids. Fur-

thermore, bacteria adsorbed to the outside of a particle will

have been exposed to some chlorine even if it has been rendered

less effective by combination with organic material in the ef-

fluent. Finally, to the extent that there are macrobenthic

organisms that do have the ‘‘grinding capabilities or the

digestive capabilities’ to use the organic material, they only af-

fect material that has settled to the bottom. As noted above,

since fecal material has a specific gravity near that of water,

much of it will remain suspended in the water column.

Otto also testified that there are three forms of zooplankton

that swim in the water column, and that,

Some forms eat phytoplankton [herbivorous]. Some

forms are predatory in the sense that they eat other

zooplankton [carnivorous]. Some types are om-

niverous in that they will eat other zooplankton if

they can catch them. They will eat phytoplankton if

they happen to run across them. They will eat par-

ticulate matter if that happens to come along.

[Tr. at 10086.] Only the omnivorous form of zooplankton eat

particulate matter. Defendants asert that the report prepared by

Otto [D.Ex. 1321] ‘‘indicates the abundance of the many

predator grazing organisms in the lake.’’ [Joint Memorandum

at 40.] That document relates solely to macrobenthic organisms.

There is no evidence that omnivorous zooplankton are present

in Lake Michigan in any significant numbers. In fact Otto’s

testimony suggests exactly the opposite, for, in summarizing his

testimony concerning the interrelationships of the organisms

that live in the lake, he said, ‘‘In general zooplankton eat

phytoplankton and macrobenthics eat just about anything they

B-17

can get their hands on that is op the bottom, and fish eat

zooplankton and macrobenthics.’ 7 1Tr. 10081-10082.] Thus, it

appears that although there are some omnivorous zooplankton,

most of them are herbivorous. Moreover, zooplankton

suspended in the water, would presumably be picked up in the

water sample, in which case a die-off rate based on the observed

die-off rate in a lake water sample would include some preda-

tion. In any event, based on the evidence presented, it appears

that the most significant predation occurs with respect to viruses

and bacteria that have settled to the bottom.

The fourth factor, ultraviolet radiation, is probably not ac-

counted for in die-off rates based on laboratory observations.

Although defendants concede that ultraviolet radiation is ‘‘not

very significant,’’ they argue that it should have been con-

sidered. Their witness Cliver testified that it would affect only a

‘“*very superficial layer of water’? and would have no ‘‘signifi-

cant effect on viruses within the water column.’’ [Tr. 10311.]

Plaintiffs’ witness Melnick testified that ultraviolet radiation

would deactivate viruses only in the top 1/10 of an inch of water

and then only if they remained there for several minutes. [Tr.

2292.] We are not referred to any evidence that the effect on

bacteria would be substantially different.

The district court’s finding that pathogens discharged at

Milwaukee are sometimes carried ‘‘live and intact’’ to Illinois

waters is not clearly erroneous, even considering each of the

assertedly independent factors urged by defendants.

C. Dillution and Distance from Shore

Even if pathogens live long enough to be transported from

Milwaukee to Illinois and there are no other factors that would

significantly reduce their numbers, dilution in the lake would

reduce their concentration in a particular parcel of water. The

district court found that although there was some dilution, it

7 Presumably, some fish might also eat organic material containing

pathogens. Defendants do not, however, refer us to any evidence in

the record on this point.

B-18

did not reduce the concentration of pathogens to insignificance.

[Tr. 14217.] That conclusion is amply supported by the evidence

presented at trial. Geldreich, it will be recalled, testified that a

fecal coliform count of 1,000/100 ml indicates a high probabili-

ty that pathogens would be present. See discussion of fecal col-

iform, supra. Defendant’s witness Carter, using data found in

the record,® including an initial fecal coliform concentration of

35,000/100 ml, calculated that the fecal coliform concentration

of water at the Illinois border, not including any die- a would

be 4,014 fecal:coliform per 100 ml. [Tr. 8924-8925. )? Csanday,

whose testimony on this point the court found credible [see Tr.

14216-14217], testified that if the cusrent speed was 30 cm/sec.,

which Csanady testified was typical in Lake Michigan, dilution

would have reduced the fecal coliform concentration in water

beginning at Milwaukee by only 15% when it reached the II-

linois boundary. [Tr. 2013-2014, 2054.] See Diffusion and

Dispersion, supra, at 116-117 [P.Ex. 20]. Applying the Canale

die-off rate, Csanady oer that a fecal coliform concentra-

tion of 10,000 per 100 ml 10 would be reduced to 3,000 per 100

ml at the Illinois boundary, considering dilution and die-off.

[Tr. 2053, 2054.] Defendants do not directly contest this point;

rather they argue that in addition to dilution and die-off, the

four ‘‘independent’’ factors already discussed should have been

considered.

8 He used a diffusion velocity w = .33 [which was the average diffu-

sion velocity found in the Pritchard-Carpenter study (P.Ex. 227) as

estimated in D.Ex. 1164], a flow rate of 13,000 cubic feet per second

[as indicated in D.Ex. 1164], a current speed of 1.19 feet per second

[as indicated in D.Ex. 1164], a distance of 1.97 x 10° feet [as indicated

in D.Ex. 1164], and an initial fecal coliform count of 35,000 per 100

ml [based on data in P.Ex. 148].

9 Using the .58 die-off coefficient that defendants argued was proper

[D.Ex. 1164], Carter calculated that the concentration at the Ulinois

line would have been 1,321 per 100 ml. [Tr. 8932-8933], well over the

1,000/100 ml indicator that Geldreich’s testimony established.

104, stated in the text, supra, the fecal coliform counts for the raw

sewage discharged from the overflow points on defendants’ sewer

system is sometimes much higher than 10,000/100 ml.

B-19

Whatever effect dilution may have, any viruses or bacteria

that are in the water are reconcentrated to some extent on the

water intake filters of drinking water treatment plants. [Tr.

13268-13269.] Generally reconcentration is not of great

significance, but if there is a breakdown in the filtering system

this high concentration of viruses will flow into the system and,

if treatment is not adequate, into the drinking water supply. [/d;

see also D.Ex. 34, p.4.]

Detendants contend that if bacteria and virus live long

enough to be transported to Illinois waters and are not reduced

to insignificance by dilution or other factors, they nevertheless

remain too far from the shore to have any effect on Illinois

water supplies or to be of any consequence to Illinois swimmers.

Although the district court made no express finding on the

distance from shore at which pathogens arriving in Illinois from

Milwaukee will be found, the fact that the pathogens will be

close enough to affect water supplies and swimmers is implicit in

the court’s finding that ‘‘[o]nce these pathogens arrive in IIlinois

waters, they can infect and cause disease in residents of Illinois

... in two ways: _ by ingestion of these waters at bathing beaches

by swimmers and by ingestion of drinking water containing

these pathogens.’’ [Tr. 14221.] There is evidence sufficient to

support the finding that pathogens arriving in Illinois waters

from Milwaukee will be close enough to shore to affect Illinois

residents.

Defendants contend that Csanady’s testimony clearly shows

that ‘‘pollutants, either conservative or nonconservative, which

may have entered Lake Michigan at Milwaukee never get close

enough to shore in Illinois to cause any hazard.’’ [Joint

Memorandum at 46.] Even the passage relied upon by defen-

dants does not support the proposition. Csanady testified that

although the center of a dye plume, used to simulate pollution

movement, might be located several kilometers from shore,

The concentration simply decreases from the center as

you go shoreward .... The maximum occurs a certain

distance from shore. But it doesn’t decrease to zero.

B-20

[Tr. 2584.] In other words, lateral diffusion of the dye plume

would result in some of the dye reaching the shore even though

higher concentrations would be found further offshore. Defen-

dants’ witness Pritchard also testified that this would occur.

[Tr. 6564.] Furthermore, in a passage not cited by the defen-

dants, Csanady testified that a dye plume would move back and

forth in an area extending from the shore to about 6 miles out in

the lake. [Tr. 2586.] In response to the question of whether peak

concentrations would ever move on shore, Csanady answered,

‘*Yes, and there would be situations where the slug [or dye

plume] meanders on shore and hits areas closer to shore.’’ [Tr.

2025.] It seems fairly obvious that whether or not a dye plume

or poilution will hit the shoreline depends in large part on wind

direction. [See P.Ex. 222, 223, 224 (dye studies conducted at

Milwaukee beaches in 1963).] Indeed, based on his study of

pollution data from the Evanston-North Shore beaches and the

associated wind directions, Geldreich testified: ‘‘It is quite ob-

vious that there are occasions when the wind, when it is blowing

from the northeast, is pushing pollution on those beaches.’’ [Tr.

3111.]

Defendants also argue that upwelling and downwelling of the

lake water operate to carry any pollution in the near shore areas

out into the center of the lake in the manner described in the

margin. !! There are several factors that can cause upwelling or

downwelling and at any particular time there may be more than

I lin winter, when throughout the depth of the lake the temperature is

fairly uniform, the effect of upwelling and downwelling is less signifi-

cant than in summer, when the temperature decreases with depth. In

summer the upper layer of the lake, the epilimnion, and the bottom

layer, the hypolimnion, are separated by an intermediate layer, the

thermocline. Since heat from the sun warms the epilimnion and to a

lesser degree the termocline, but has little effect on the hypolimnion,

the temperature at the three levels varies. [Tr. 2071-2072.] Water is

heaviest at 4 degrees Celsius (or 39 degrees Fahrenheit); at

temperatures either above or below 4 degrees Celsius, water is lighter.

The temperatures in the hypolimnion stay close to 4 degrees Celsius,

and therefore the water generally remains at the bottom. [Tr. 2072.]

(Footnote continued on following page)

‘ B-21

one contributing factor, but the most important appears to be

wind. [E.g. Tr. 6498-6502.] If the wind blows from the west,

surface waters on the western side of the lake move offshore and

Footnote 11 (continued)

Water in the epilimnion generally remains on the top since it is warmer

than 4 degrees Celsius and therefore lighter than the water at the bot-

tom. As might be expected, in the intermediate layer or thermocline,

the temperature increases rapidly from bottom to top. According to

Csanady, ‘‘The physical effect of that rapid temperature change is to

suppress the movement of parcels of the fluid.”’ [Tr. 2072.] Conse-

quently, the thermocline ‘‘becomes an effective floor for the mixing

processes in the top of the lake ....’’ [/d.] Thus any pollution dis-

charged in the winter which does not remain suspended near the top

‘because of its specific gravity can mix with water all the way to the

bottom. [Tr. 2022-2023.] But such pollution discharged in the summer

after the thermocline has formed can only mix with the water down to

the thermocline, reducing the dilution and increasing the concentra-

tion. [/d.]

Upwelling in the near-shore area would cause the surface waters to

move toward the center of the lake. The near-shore surface water,

having moved offshore, is replaced by deeper near-shore water, which

is in turn replaced by deep offshore water. In winter since any pollu-

tion in the near-shore waters can mix to the bottom, the result is that

polluted surface water near the shore will be replaced by deeper near-

shore water, which may also be polluted to some extent and is in turn

replaced by at least arguably cleaner offshore water, with the result

that the pollution in the near-shore zone will be diluted.

Similarly, but perhaps more important, upwelling in the near-shore

zone when the thermocline prevents mixing in the lower levels of water

causes relatively clean water to replace the polluted surface waters that

move offshore. The deep near-shore water is then replaced by cleaner

deep offshore water. Upwelling in the summer causes the heavier

water from the bottom to move to the top. When the force causing the

upwelling stops, the heavier water sinks back to the bottom and is

replaced by offshore warm surface water. [Tr. 6499-6501 .]}

For a detailed description of the upwelling/downwelling

phenomenon see Mortimer, ‘‘Physical Characteristics of Lake

Michigan and its Responses to Applied Forces,’’ 2 Environmental

Status of the Lake Michigan Region 35-43 (1975) [P.Ex. 20].

s

\

\

B-22

there is upwelling on the western shore and downwelling on the

eastern shore; if the wind is from the east, then there is

downwelling on the western shore and upwelling on the eastern

shore. Nevertheless, the experts agree that whatever the wind

direction the predominate current in the near shore area is shore

parallel, either north or south. [Compare Tr. 6508, 6584 (Prit-

chard) with Tr. 1955-1956, 1947 (Csanady).] Indeed, the near-

shore zone is sometimes defined as the area in which the

predominate currents are shore parallel. [Tr. 6577; P.Ex. 38]

Sato & Mortimer, supra, at 286 [Tr. 6577; D.Ex. 38].

Assuming that any upwelling on the western shore would

clean out the near-shore waters, we cannot conclude that the

pollution discharged at Milwaukee does not come close enough

to shore to affect Illinois residents. At most, this evidence shows

that discharges from Milwaukee would not build up over time in

the near-shore waters. Moreover, as Pritchard’s Ocean City,

Maryland, experiments demonstrate, downwelling on the

western shore will cause any pollutants in the near-shore zone to

move toward the shore and sometimes all the way to the shore.

[See Tr. 6565-6569. ]

D. Danger to Illinois Residents

As noted above, the district court found that there were two

ways in which pathogens discharged at Milwaukee can affect II-

linois residents: ‘‘ingestion of these waters [containing

pathogens] at bathing beaches by swimmers and by ingestion of

drinking water containing these pathogens.’’ [Tr. at 14221.] If

there are viruses in the lake, swimmers may be infected. Melnick

testified that ‘‘if they have minor cuts or abrasions on their skin,

if they get water in their mouth or nose, they could pick up the

virus and become infected.’’ [Tr. at 2218.] It follows that if

there are viruses in drinking water, the people drinking it may

also be infected.

Two points should be noted concerning the hazards to swim-

mers. First, although any danger to swimmers exists only in

summer when the lifespan of viruses and bacteria are shortest

due to ‘‘warmer’’ water temperatures, the evidence discussed

B-23

above shows that even at 70 degrees Fahrenheit (21 degrees

Celsius) viruses will survive for about two weeks [(Tr. 2199)]

and bacteria will survive fur at least 2 days [(Tr. 3092.)] Except

in July and August, water temperatures in Lake Michigan

seldom reach 70 degrees F; 12 at the lower temperatures more

frequently found in Lake Michigan both viruses and bacteria

will survive for longer tim€ periods. [Tr. 2199, 3092.] Second,

because of what was referred to at trial as the ‘‘coastal jet

phenomenon’’, lake currents in summer are likely to be much

more rapid than in winter, sometimes reaching speeds as high as

50 cm per second, which would carry effluent released at Jones

Island to Illinois waters in less than two days. [Tr. 2009-2010;

for an explanation of the coastal jet phenomenon see Tr.

2097-2098.] A current of 50 cm/sec would of course carry any

effluent discharged at the South Shore plant to Illinois waters in

even less time.

The district court found that viruses can and do get through

drinking water treatment plants ‘‘both when the plant is being

operated properly and even more so should the plant experience

a breakdown.”’ [Tr. 14222-14223.]

Organic matter in raw water from the lake may be concen-

trated on filters in water treatment plants, and when there is a

breakdown or the filter fails to function the matter comes

through. [Tr. 13269.] Viruses can be washed through with par-

ticulates when the filter is cleaned by flushing or pH is changed.

[Tr. 13272.]

Viruses or bacteria in Lake Michigan can only affect Illinois

drinking water supplies if they remain in the water after treat-

ment. Tap water, after passing through a drinking water treat-

ment plant, may contain particulate matter. [D. Ex. 34, p.4.]

Wellings, although not an expert on drinking water treatment

plants, testified that such particulate matter might contain

12 See, e.g., Sato & Mortimer, supra, {P.Ex. 38] at 64, 68, 72, 74, 78,

80, 82, 86, 88, 93, 94, 96, 100,102, 106, 110, 114, 118, 122, 124, 126,

130, 132, 138, 142, 144, 146, 150. [See also Tr. 10314-10315.]

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viruses. [Tr. 13265.] In addition, Berg testified that ‘‘solid

coloidal material’’ remaining in treated drinking water and re-

ferred to in two articles introduced by the defendants’ [D. Exs.

3 and 34] as ‘‘turbidity’? may contain viruses. [Tr. 12077,

12080-12082.] The testimony of Wellings and Berg indicates

that viruses embedded in ‘‘particulate matter’’ [Tr.

13265-13266] or ‘‘solid coloidal matter’’ [Tr. 12080-12081] can

survive the chlorination that occurs in water treatment plants.

[Tr. 13265-13266 (Wellings as to particulate matter); Tr.

12080-42081 (Berg as to solid coloidal matter).] Although the

evidence that a properly designed and operated water treatment

plant will not provide adequate protection against pathogens in

the raw water is less than compelling, it raised a debatable issue

that the trial court was justified in resolving against defendants.

Moreover, the effectiveness of water treatment plants is not

determined only by their optimal performance. Sometimes they

do not operate at peak efficiency. Berg testified as follows:

If a [drinking water] treatment plant breaks down at

some point in time for some period of time, even for a

very short period of time, during that period of time

when there is perhaps inadequate removal of the solid

material, when there is lack of chlorination, then any

impact that raw water coming in may have by way of

pathogenic agents, viruses or anything else, can

presumably become a problem.

Q_ Doctor, are you familiar with the public health

principle articulated in the fields of microbiology and

virology of a double tier protector?

A. Yes. The multiple barrier

A. (continuing) that we speak of, which means

that you try to protect the raw water as much as

you can so that in the event that something does

hagnen at a treatment plant that you don’t bring

&, EE

B-25

about an insult that can be carried through the

plant and in this respect, carry through into the

finished water pathogenic organisms or viruses.

[Tr. 12082-12083.] Melnick and Geldreich also testified that the

possibilities of human error or mechanical breakdown make it

imprudent to rely on water treatment plants to remove viruses

from drinking water supplies. [Tr. 2191-2192 (Melnick); Tr.

3106-3107 (Geldreich); see Tr. 13267 (Wellings).]

The trial court’s finding that viruses discharged into Lake

Michigan at Milwaukee pose a hazard to Illinois drinking water

supplies is therefore not clearly erroneous.

E. Accelerated Eutrophication

‘The district court found ‘‘that the defendants’ sewage

discharges into Lake Michigan are presently contributing in a

substantial way to the accelerated eutrophication of the inshore

zone of the western shore of Lake Michigan, including waters of

Lake Michigan which are within the territorial boundaries of the

State of Illinois.’’ [Tr. 14242-14243.] Defendant’s challenge to

this finding is that the court did not quantify their contribution

to accelerating eutrophication and that this was error because

there are other contributors and defendants should not have

been singled out. They do not question that they made the con-

tribution, only its relative magnitude.

The significance of the court’s eutrophication finding in rela-

tion to the issues to be decided is less than clear. As we explain

below, the principal offending contaminant is phosphorus. !

Defendant sewerage commissions acknowledge that ‘‘the trial

court has merely enforced the defendants’ discharge permit

phosphorus requirements’? (1 mg/l), but they then add,

13 iilinois asserts that sewage and effluent contain unspecified ‘‘other

nutrients’ that contribute to eutrophication. There were no findings

made or relief granted with respect to these other nutrients, so we need

not discuss them further.

B-26

‘‘though different and costlier timetables are imposed.”’

[Sewerage Commissions’ Brief 28.] In our examination of the

effluent limitations in the court’s order and the discharge per-

mits, undertaken without any guidance be

This text is long and has been trimmed here. Open the source document for the complete record.