# Appendix — Milwaukee v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 304

## Text

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Unpublished order dated April 26, 1979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.

A-2

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
w

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A02. Public record. Not legal advice.