Appendix — Milwaukee v. Illinois

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No. 79-408 "1 MICHAEL RODAK, JR., CLERK

supreme LOU. UV. o-

FILED

OCT 10 1960

IN THE is

Supreme Court of the United States

OctToBER TERM, 1979

Crry or Mi.wavKer, THE SEWERAGE COMMISSION OF

THE City OF MILWAUKEE, AND THE METROPOLITAN

SEWERAGE CoMMISSION OF THE CoUNTY OF MILWAUKEE,

Petitioners,

Vv.

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHTGAN,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

Petition for Certiorari Filed

September 11, 1979

Certiorari Granted March 17, 1980

JOINT APPENDIX

Pauss or Brzon 8S. Anams Parvrrina, Inc., Wasnmneron, D. C.

10.

TABLE OF CONTENTS

Page

» ORTON DOCG TTT: os oes eassevecustoves 1

May 19, 1972 Complaint of State of Illinois .... 23

June 29, 1972 Complaint of State of Michigan .. 33

December 7, 1972 Answer of The Metropolitan

Sewerage Commission of the County of Milwau-

kee to Illinois’ Complaint ...............eeee0- 41

December 7, 1972 Answer of The Metropolitan

Sewerage Commission of the County of Milwau-

kee to Michigan’s Complaint .................. d3

December 8, 1972 Answer of City of Milwaukee

and The Sewerage Commission of the City of

Milwaukee to Illinois’ Complaint .............. 63

December 8, 1972 Answer of City of Milwaukee

and The Sewerage Commission of the City of

Milwaukee to Michigan’s Complaint ........... 79

May 26, 1978 Order of the United States Court

of Appeals for the Seventh Circuit ............ 87

July 15, 1978 Supplemental Memorandum of

Plaintiff-Appellee State of Illinois to the United

States Court of Appeals for the Seventh Circuit 89

August 28, 1978 Joint Memorandum of Defen-

dants-Appellants City of Milwaukee, The Sew-

erage Commission of the City of Milwaukee and

The Metropolitan Sewerage Commission of the

County of Milwaukee to the United States Court

of Appeals for the Seventh Cireuit ............ 199

Table of Contents Continued

Page

11. September 28, 1978 Reply Memorandum of Plain-

tiff-Appellee State of Illinois to the United States

Court of Appeals for the Seventh Circuit ...... 321

12. October 5, 1978 Joint Memorandum of Defen-

dants-Appellants City of Milwaukee, The Sewer-

age Commission of the City of Milwaukee and

The Metropolitan Sewerage Commission of the

County of Milwaukee to the United States Court

of Appeals for the Seventh Circuit ........... 351

13. January 31, 1980 Amended Judgment Order of

the United States District Court for the North-

CCR TIE BE FEO nk ous ba buns Vode ceueners 357

14. May 8, 1980 Order of the Supreme Court of the

United States (Mr. Justice Stevens) .......... 369

15. Plaintiff’s Exhibit 62 (relevant portions) ...... 371

16. Plaintiff’s Exhibit 63 (relevant portions) ...... 395

Ae yg BE eer er ere ere 423

16. Defendants’ ARiDit TST) 2... ios ccicvecccenes 455

The following opinions, decisions, judgments, and orders

have been omitted in printing this appendix because they

appear on the following pages in the appendix to the

printed Petition for Certiorari:

Opinion of the Supreme Court, dated April 24, 1972

Opinion of the District Court for the Northern Dis-

trict of Illinois, dated November 16, 1972 .......

Opinion of the Distriet Court for the Northern Dis-

trict of Lllinois, dated November 1, 1973 ......

Opinion of the District Court for the Northern Dis-

trict of Illinois, dated July 29, 1977

Stipulation of the Parties, dated November 14, 1977...

Judgment of the District Court for the Northern Dis-

trict of Illinois, entered on November 15, 1977...

Opinion of the Court of Appeals for the Seventh

Cirewit, dated April 26, 1070 i5.0..020 cece eenes

Unpublished Order of the Court of Appeals for the

Seventh Circuit accompanying its April 26, 1979

Upinion, dated April 26, 1979 ........ssccccece

Order of the Court of Appeals for the Seventh Cir-

cuit denying rehearing, dated June 14, 1977 .....

I-1

H-1

G-1

F-1

H-1

D-1

A-1

B-1

RELEVANT DOCKET ENTRIES

5-19-72—Complaint and six copies with exhibits.

6-29-72—Motion of The State of Michigan for leave to in-

tervene as Party Plaintiff, Proposed Complaint and

Notice of Hearing.

6-30-72—Motion defendant, Metropolitan Sewerage Com-

mission of The County of Milwaukee to dismiss sum-

mons pursuant to Rule 12(b) FRCP.

7-14-72—Interrogatories of defendants, City of Milwaukee

& Sewage Commission of City of Milwaukee to be

answered by Plaintiff.

7-27-72—Objections to motion for intervention (FRCP-

Rule 24) On behalf of Defendants, City of Milwaukee

and Sewage Commission of City of Milwaukee.

8-9-72—Plaintiff’s Notice of Motion; Motion.

8-23-72—Order: Motion for leave to Intervene as Party

Plaintiff by the State of Michigan—taken under Rule

13, Briefs: 20-10 & 5 Baurr, J.

8-23-72—-Order: Motion to Waive Local Rule 7 A by the

State of Michigan granted. Bauer, J.

8-31-72—-Notice of motions, motions of defendants City of

Milwaukee, and Sewage Comm. of the City of Mil-

waukee, to quash the summons and Memorandum in

support ot defendants City of Milwaukee and Sewage

Comm. to quash the summons and to dismiss.

9-28-72—-Motion of defendants, Metropolitan Sewerage

Comm. of County of Milwaukee.

9-28-72—-Motion of defendant Metropolitan Sewerage Com-

mission to dismiss taken under advisement. Briefs in-

stanter, 15 and 10. Ruling set for November 6, 1972—

Bauer, J.

9-29-72—Plaintiff’s request for production of documents.

10-10-72—Argument—Motion of City of Milwaukee and

Sewage Commission of City of Milwaukee to quash

summons and to dismiss—Argument—heard and con-

cluded—Cause taken under advisement.—Bauer, J.

10-30-72—Objections of City of Milwaukee and Sewage

Commission of Milwaukee to request of plaintiff for

production of documents.

11-6-72—Objections of The Metropolitan Sewerage Com-

mission of the County of Milwaukee to the request of

the Plaintiff for the production of documents.

11-16-72—Order: Defendant Metro Sewerage Commission’s

motion to dismiss denied. (Drarr) Bauer, J.

11-21-72—Order: Leave to State of Michigan to intervene

and to file complaint immediately etc. Each of the par-

ties have 20 days from this date in which to serve an

answer or otherwise plead with respect to the com-

plaint of the State of Michigan—Drarr—Bauer, J.

12-11-72—Answer of defendants City of Milwaukee and

Sewerage Commission of the City of Milwaukee to

Complaint of the State of Illinois.

12-11-72—Answer of defendants City of Milwaukee and

Sewerasze Commission of the City of Milwaukee to

complaint of the State of Michigan.

12-11-72—Answer of the Defendant, Metropolitan Sewerage

Commission of the County of Milwaukee, to the State

of Illinois.

12-11-72—Answer of Metropolitan Sewerage Commission

of the County of Milwaukee defendant herein, to the

Complaint of the intervening Plaintiff, People of the

State of Michigan.

1-24-73—People of the State of Michigan’s Notice and

copy.

1-24-73—Enter order stipulation and order for leave to

Intervene as party plaintiff by the State of Michigan,

granted. (Drarr) Bauer, J.

5-30-73—Plaintiff’s Notice of Answers to Interrogatories.

5-30-73—Plaintiff’s Supplemental Answers to the Interrog-

atories of the City of Milwaukee and the Sewage

Commission of the City of Milwaukee.

6-14-73—Defendants’ Interrogatories.

6-25-73—Defendants’ Request for Production of Documents.

6-27-73—Defendants’ Request for Production of Documents.

7-17-73—Answer of Intervening Plaintiff, the People of

the State of Michigan, to Interrogatories of City of

Milwaukee and Sewage Commission of the City of

Milwaukee.

7-30-73—Defendants Milwaukee and Sewage Commission’s

Notice of Motion; Motion and Memorandum in Support

of Motion, and copy.

8-1-73—Defendant Metropolitan Sewerage Commission’s

First Set of Interrogatories to Plaintiff.

7-30-73—Notice of Motion, Motion and Memorandum in

Support of Motion by City of Milwaukee.

8-6-73—Defendant Metropolitan Sewage’s First Set of In-

terrogatories to Plaintiff, State of Michigan.

8-17-73—Reply to Request for Production of Documents.

8-21-73—Notice of Motion and Motion of Metropolitan

Sewerage Commission to dismiss.

8-21-73—Order: Motion to dismiss for lack of jurisdiction

of subject matter taken under advisement. Plaintiff

given 10 days to respond. Ruling set for November 1,

1973—Bauer, J.

9-26-73—Intervening plaintiff’s notice of answer to inter-

rogatories.

9-26-73—Answers of intervening plaintiff, The People of

the State of Michigan, to interrogatories of the Metro-

politan Sewerage Commission of the County of Mil-

waukee.

10-17-73—Order: Plaintiff’s motion to file design commit-

ment agreement for the city of Racine and the city of

Kenosha and to dismiss these defendants granted and

said motion continued to October 31, 1973 for response

of opposing parties.—Bauer, J.

11-1-73—City of Kenosha design commitment agreement.

11-1-73—City of Racine design commitment agreement.

11-1-73—Objection of City of Milwaukee, Sewerage Com-

mission of City of Milwaukee, and Metropolitan Sew-

erage Commission of Milwaukee County to the present

pending motion of plaintiffs and contents of the pro-

posed order submitted to the Court, overruled and

plaintiff given leave to file design commitment agree-

ment and to dismiss defendants City of Kenosha and

City of Racine. (Drarr) Order: Plaintiffs action

against defendants Racine and Kenosha, Wisconsin

dismissed ete., (Drarr) Order: Motion of defendants

City of Milwaukee, the Sewerage Commission of the

County of Milwaukee and the City of South Milwaukee

to dismiss the complaint denied. (Drarr)—Bauer, J.

2-28-75—Order dated February 24, 1975: Whereas Judge

Flaum was in the service of the State’s Attorney’s Of-

fice for Cook County at the commencement of this

cause, and whereas this cause was originally assigned

to the calendar of Judge Bauer who has been elevated

to the Court of Appeals, it is hereby ordered that this

cause is reassigned to the calendar of an individual

judge of this court in accordance with the rules.—Rob-

son, C.J. For tHe Executive Comittee. (Jupce Lyncx)

12-19-75—Answer of plaintiffs to interrogatories pro-

pounded by the Metropolitan Sewage Commission of

the County of Milwaukee. bb

12/29/75—Plaintiffs first set of interrogatories directed to

defendant, The Sewerage Commission of the City of

Milwaukee.

12/29/75—Plaintiffs request for production of documents

directed to defendant City of Milwaukee, Wisconsin.

12/29/75—Plaintiffs request for production of documents

directed to the defendant The Sewerage Commission

of the City of Milwaukee.

12/29/75—Plaintiffs first set of interrogatories directed to

defendant the Metropolitan Sewerage Commission of

the County of Milwaukee.

12/29/75—Plaintiffs Request for production of documents

directed to the defendant the Metropolitan Sewerage

Commission of the County of Milwaukee.

12/29/75—Plaintiffs first set of interrogatories to defen-

dant City of Milwaukee Wisconsin.

4/30/76—Defendant, Sewerage Commission of the City of

Milwaukee’s Answer to Plaintiff’s First Set of Inter-

rogatories Directed to Defendant, The Sewerage Com-

mission of the City of Milwaukee.

4/30/76—Answer to Plaintiff’s First Set of Interrogatories

Directed to the Defendant, Metropolitan Sewerage

Commission of the City of Milwaukee.

4/30/76—Response to Request for Production of Docu-

ments Directed to Defendant, Metropolitan Sewerage

Commission of the County of Milwaukee.

4/30/76—Response to Request for Production of Docu-

ments Directed to Defendant City of Milwaukee, Wis-

consin.

4/30/76—Answers to Plaintiff’s First Set of Interroga-

tories Directed to Defendant, City of Milwaukee, Wis-

consin.

4/30/76—Response to Request for Production of Docu-

ments Directed to defendant Sewerage Commission of

the City of Milwaukee.

5/18/76—Defendant The Sewerage Commission of the City

of Milwaukee’s Request for Production of Documents

Directed to Plaintiff, People of the State of Illinois ex

rel William J. Scott, Set II.

5/18/76—Defendant the Sewerage Commission of the City

of Milwaukee’s Request for Production of Documents

Directed to Intervening Plaintiff People of the State

of Michigan, Set II.

5/18/76—Defendant’s Second Set of Interrogatories Di-

rected to Plaintiff, People of the State of Illinois, ete.

5/18/76—Second Set of Interrogatories Directed to Inter-

vening Plaintiff People of the State of Michigan.

5/26/76—Defendant’s Notice of Motions, Motions to Dis-

miss and Memorandum Brief of Defendants, City of

Milwaukee, Sewerage Commission of the City of Mil-

waukee and The Metropolitan Sewerage Commission

of the County of Milwaukee in Support of Motiois to

Dismiss.

5/26/76—Defendant, City of Milwaukee’s Motion and Brief

on Motions Presented.

7-19-76—Plaintiff’s state of Illinois’ answers to defendants’

second set of interrogatories.

7-26-76—Intervening Plaintiff State of Michigan’s Answers

to defendants’ second set of interrogatories.

9/9/76—Filed Response of the State of Illinois to the Mo-

tion of the Sewerage Commission of the City of Mil-

waukee for an Order Compelling Further Answers to

Interrogatories by the Plaintiff State of Illinois and

Compelling Production of Documents.

9/9/76—Filed Notice of Motion and Motion for Orders

Compelling Answer to Interrogatories to Party and

Compelling Response to Demand for Production of

Documents.

9/22/76—Order dated September 9, 1976: Enter order re-

setting the trial from October 5, 1976 to January 3,

1977. Defendants have 10 days to respond to plain-

tiffs’ brief in opposition to the motion to compel and

plaintiff 5 days to reply (Draft).—Grady, J.

9/27/76—Order dated September 22, 1976: Defendant’s mo-

tion to dismiss, motion for class action status, motion

for joinder and motion for complex litigation status

eve all denied (draft).—Grady, J.

10/21/76—Order dated October 20, 1976: Plaintiffs are or-

dered to furnish supplemental answers to defendants’

interrogatories and to produce all relévant documents

by November 20, 1976. Defendants are ordered to

furnish supplemental answers to plaintiffs’ interroga-

tories by Nevember 20, 1975. Attorneys fees will be

assessed against any party found to be in violation of

this order or to have unreasonably withheld relevant

discovery.—Grady, J.

. 10/27/76—Defendant, City of Milwaukee, the Sewerage

Commission of the City of Milwaukee and Metropolitan

Sewerage Commission of the County of Milwaukée’s

Notice of Appeal from the order entered September

27, 1976 in favor of plaintiffs. msn

10/27/53—Defendants’ Motion to Delay the January 3,

1977 trial date in light of this court’s order dated Oc-

tober 20, 1976. msn

10/29/76—Order dated October 28, 1976: Pursuant to the

court’s Memorandum Opinion dated September 22,

1976, defendants’ motion to dismiss, motion for joinder,

motion for class action status and motion for complex

litigation status are all denied. Defendants’ motion to

postpone the trial date until completion of the study of

the Environmental Protection Agency is also denied.

Defendants’ motion for certification of these questions

under 28 USC §1292(b) is also denied.—Grady, J.

11/2/76—Defendants’ Notice of Motion and Motion to Limit

Discovery. msn

11/3/76—Order dated November 3, 1976: Defendant’s mo-

tion to delay the January 3, 1977 trial date in licht of

this court’s order dated October 20, 1976 is denied.—

Grady, J.

11/8/76—Plaintiff’s Memorandum of Law in Support of

Motion to Strike.

11/8/76—Defendants’ Memorandum in Support of Motion

to Limit Discovery and Affidavit of Mailing.

11/9/76—Defendants’ Notice of Appeal from the order

entered on the 28th day of October.

11/19/76—Order dated November 17, 1976: Certain docu-

ments shall be produced for inspection and copying no

later than December 11, 1976; both sides to make all

witnesses available for deposition no later than Decem-

ber 20, 1976; all parties shall have indicated any objec-

tions to the authenticity of documents by December 22,

1976. Cause is continued for status report to December

29, 1976 at 2 p.m.—Grady, J.

11/22/76—Defendant, The Sewerage Commission of the

City of Milwaukee’s Supplemental Answer to Interrog-

atories of Plaintiff, State of Illinois.

11/22/76—Supplemental Answers to First Set of Interrog-

atories of Plaintiff, State of Ilinois.

11/22/76—Supplemental Answers to Plaintiff’s First Set

of Interrogatories Directed to Defendant City of Mil-

waukee, Wisconsin.

12/8/76—Filed Motion to Compel Further Production of

Documents.

12/10/76—Order dated December 8, 1976: Motion of plain-

tiff to compel further production of documents is

granted. Counsel for plaintiff to prepare and submit

a draft order.—Grady, J.

12/27/76—Certified copy of order from USCA denying the

petition for writ of mandamus.

12/30/76—Order dated December 29, 1976: By Friday, De-

cember 31, 1976, each side is to submit to the other side

the names and addresses of all witnesses they intend to

have testify in their respective cases in chief. This

cause is set down for trial on Monday, January 10,

1977 at 10 aam.—Grady, J.

1/3/77—Filed defendants’ Metropolitan Sewerage Com-

mission of the County of Milwaukee and the Sewerage

Commission of the City of Milwaukees’ Witness List.

1/4/77—Certified copy of USCA order: It is further or-

dered that this appeal be dismissed by stipulation

with each party to bear its own costs.

1/4/77—Received record, USCA, consisting of three vol-

umes of pleadings.

1/5/77—Defendants’ Exhibits (list of documents).

1/12/77—Order dated January 11, 1977: Cause is called

for trial by the Court. Motion is submitted by defen-

dants. Item 1 of defendant’s motion granted; item 2

granted, items 3 and 4 denied, as to items 5 and 6, the

Court reserves its ruling; item 7 denied; item 8 is

granted. Motion by plaintiff to dismiss defendant City

of South Milwaukee, Wisconsin granted. Opening

statements heard and concluded. Evidence presented

for plaintiffs in part. Trial is adjourned to January

13, 1977 at 10 am.—Grady, J.

1/14/77—Order dated January 13, 1977: Trial is resumed.

Over objections the Court grants the motion of plain-

tiff to dismiss the defendant City of Milwaukee as a

defendant in this action, with prejudice. Further evi-

dence presented for the plaintiff in part. Trial is ad-

journed to Friday, January 14, 1977 at 10 a.m.—Grady,

1/19/77—Order dated January 17, 1977: Trial is resumed.

Further evidence for the plaintiff in part, and the trial

is adjourned to January 18, 1977 at 10 a.m.—Grady, J.

1/19/77—Order dated January 18, 1977: Trial is resumed.

Further evidence for the plaintiff in part. Trial is ad-

journed to January 18, 1977 at 10 a.m.—Grady, J.

1/21/77—Order dated January 20, 1977: Trial is resumed.

Further evidence for the plaintiff in part. Trial is ad-

journed until Friday, January 21, 1977 at 10 a.m.

1/24/77—Order dated January 21, 1977: Trial resumed.

Further evidence for the Plaintiff in part. Trial is

adjourned to January 24, 1977 at 10 a.m.—Grady, J.

1/26/77—Order dated January 24, 1977: Trial is resumed.

Further evidence for the plaintiff, in part. Trial is

adjourned untii January 25, 1977 at 10 a.m.—Grady, J.

1/26/77—Order dated January 25, 1977: Trial is resumed.

Further evidence for the plaintiff, in part. Trial is

adjourned to Thursday, January 27, 1977 at 10 am.—

Grady, J.

1/31/77—Order dated January 27, 1977: Trial resumed.

Further evidence for the plaintiff in part. Trial is

adjourned until January 28, 1977 at 10 a.m.—Grady, J.

1/31/77—Order dated January 28, 1977: Trial resumed.

Further evidence for the plaintiff in part. Trial is aa-

journed until Tuesday, February 1, 1977 at 10 a.m.—

Grady, J.

2/7/77—Order dated February 1, 1977: Trial is resumed.

Further evidence for the plaintiff in part. Trial is ad-

journed with Thursday, February 3, 1977 at 9:30 a.m.

—Leighton, J.

2/7/77—Order dated February 3, 1977: Trial is resumed.

Further evidence for the plaintiff in part. Trial is ad-

journed to Friday, February 4, 1977 at 9:30 am—

Leighton, J.

2/7/77—Order dater February 4, 1977: Trial is resumed.

Further evidence for the plaintiff in part. Trial is

adjourned untl Monday, February 7, 1977 at 9:30 a.m.

—Leighton, J.

2/14/77—Order dated February 7, 1977: Trial is resumed.

Further evidence for plaintiff in part. Trial adjourned

to February 8, 1977 at 10 a.m.—Grady, J.

2/14/77—Order dated February 10, 1977: Trial is resumed.

Further Evidence for the plaintiff in part. Trial is

adjourned until Friday, February 11, 1977 at 10:30 a.m.

—Grady, J.

2/16/77—Order dated February 11, 1977: Trial is resumed.

Further evidence for the plaintiff in part. Trial is ad-

journed until Monday, February 14, 1977 at 9:30—

Grady, J.

2/16/77—Order dated February 14, 1977: Because of ill-

ness of one of the plaintiff’s attorneys, trial is contin-

ued until Tuesday, February 15, 1977 at 10 am—

Grady, J.

2/16/77—Order dated February 15, 1977: Trial is resumed.

Further evidence for the plaintiff in part. The trial is

adjourned until February 16, 1977 at 9:30 a.m.—Grady,

2/17/77—Order dated February 16, 1977: Trial is resumed.

Further evidence for the plaintiff in part. Trial is ad-

journed until February 17, 1977 at 10 a.m.—G@rady, J.

2/22/77—Order dated February 17, 1977: Trial is resumed.

Further evidence presented for the plaintiff and the

plaintiff rests. Evidence presented for the defendants

in part. The trial is adjourned until February 23, 1977

at 10 a.m.—Grady, J.

2/28/77—Order dated February 24, 1977: Trial is resumed.

Further evidence for the defendants in part. Trial

adjourned to Friday, February 25, 1977 at 9:30 a.m.

—Grady, J.

2/28/77—Order dated February 23, 1977: Trial is resumed.

Further evidence for the defendant in part. Trial is

adjourned to Thursday, February 24, 1977 at 9:30 a.m.

Grady, J.

2/28/77—Order dated February 25, 1977: Trial is resumed.

Further evidence for the defendant in part. Trial is

hereby adjourned until March 7, 1977 at 10 am.—

Grady, J.

3/9/77—Order dated March 7, 1977: Trial is resumed.

Further evidence for the defendants in part. Trial is

adjourned until Tuesday, March 8, 1977 at 10 am.—

Grady, J.

3/9/77—Order dated March 8, 1977: Trial is resumed.

Further evidence presented for the defendants in part.

Trial is adjourned until Wednesday, March 9, 1977 at

10 a.m.—Grady, J.

3/9/77—Metropolitan Milwaukee Association of Com-

merce’s Motion to Suspend Rule 7 of the Rules of the

Court.

3/10/77—Order dated March 9, 1977: Leave is granted

Metropolitan Milwaukee Assoc. of Commerce to file a

brief as Amicus Curiae on March 30, 1977. Motion for

Amicus Curiae to suspend Rule 7 of the Rules of this

court, granted.—Grady, J.

3/9/77—Order dated March 9, 1977: Trial is resumed.

Further evidence for the defendants in part and trial

is adjourned until Thursday March 10, 1977 at 9:30

a.m.—Grady, J.

3/14/77—Order dated March 10, 1977: Trial is resumed.

Further evidence for the defendants in part and trial

is adjourned to Friday March 11, 1977 at 10 am—

Grady, J.

3/14/77—Order dated March 11, 1977: Trial is resumed.

Further evidence for the defendants in part and trial

is adjourned to Monday March 14, 1977 at 10 am.—

Grady, J.

3/16/77—Order dated March 14, 1977: Trial is resumed.

Further evidence presented for the defendants in part.

Trial is adjourned until Tuesday, March 15, 1977 at

10 a.m.—Grady, J.

3/16/77—Order dated March 15, 1977: Trial is resumed.

Further evidence for the defendants in part. Trial is

adjourned until Wednesday, March 16, 1977 at 9:30

a.m.—Grady, J.

3/18/77—Order dated March 17, 1977: Trial is resumed.

Further evidence for the defendants in part: Trial is

adjourned to Friday, March 18, 1977 at 9 a.m.—Grady,

3/18/77—Order dated March 16, 1977: Trial resumed. Fur-

ther evidence presented for the defendants in part and

the trial is adjourned until Thursday, March 17, 1977

at 10 a.m.—Grady, J.

3/22/77—Order dated March 18, 1977: Trial is resumed.

Further evidence for the defendants in part: Trial is

adjourned to Monday, March 21, 1977 at 10 am.—

Grady, J.

3/21/77—Order dated March 21, 1977: Trial is resumed.

Further evidence for the defendants in part. Trial is

adjourned until Tuesday, March 22, 1977 at 10 a.m.—

Grady, J.

3/22/77—Order dated March 22,.1977: Trial is resumed.

Further evidence presented for the defendants in part

and the trial is adjourned until March 23, 1977 at 9:30

a.m.—Grady, J.

3/22/77—Motion to Quash Portion of Subpoena Served on

Dr. Robert Agnew.

3/22/77—Order dated March 22, 1977: Motion of the gov-

ernment to quash portion of subpoena served on Dr.

Robert Agnew is entered and continued generally.—

Grady, J.

3/24/77—Order dated March 23, 1977: Leave granted to

Citizens for a Better Environment and the Milwaukee

River Restoration Council to file a short brief as amicus

curiae. Motion to suspend Rule 7 of the rules of this

court, granted.—Grady, J.

3/24/77—Order dated March 23, 1977: Trial is resumed.

Further evidence for the defendants in part and the

trial is adjourned to Thursday, March 24, 1977 at 10

a.m.—Grady, J.

3/28/77—Order dated March 24, 1977: Trial is resumed.

Further evidence for the defendants in part and the

trial is adjourned until Friday, March 25, 1977 at 10

a.m.—Grady, J.

3/28/77—Order dated March 25, 1977: Motion of the Fed-

eral Highway Administration, Dept of Transportation

to quash a portion of a subpoena served on Dr. Robert

Agnew, denied.—Grady, J.

3/31/77—Order dated March 25, 1977: Trial resumed, fur-

ther evidence for the defendants in part. Trial is ad-

journed until Monday, March 28, 1977 at 9:30 a.m.—

Grady, J.

3/31/77—Order dated March 28, 1977: Trial is resumed.

Further evidence for the defendants in part. Trial is

adjourned until March 29, 1977 at 10 am.—Grady, J.

3/31/77—Order dated March 29, 1977: Trial is resumed.

Further evidence presented for the defendants in part.

Trial is adjourned until Thursday, March 31, 1977 at

9:30 a.m.—Grady, J.

4/4/77—Order dated March 31, 1977: Trial resumed, fur-

ther evidence for the defendants in part. Trial is ad-

journed until Friday, April 1, 1977 at 9:30 am—

Grady, J.

4/4/77—Order dated April 1, 1977: Trial is resumed. Fur-

ther evidence presented by the defendants in part. Trial

is hereby adjourned until May 23, 1977 at 10 am—

Grady, J.

5/25/77—Order dated May 23, 1977: Trial resumed. Fur-

ther evidence for the defendants in part. Trial is ad-

journed until May 24, 1977 at 10 a.m.—Grady, J.

5/25/77—Order dated May 24, 1977: Trial resumed. Fur-

ther evidence for the defendants in part. Trial is ad-

journed until May 26, 1977 at 9:30 a.m.—Grady, J.

5/27/77—Order dated May 26, 1977: Trial is resumed. Fur-

ther evidence is presented by the defendants in part.

Trial is adjourned until Friday, May 27, 1977 at 9:30

a.m.—Grady, J.

6/1/77—Order dated 5/27/77: Trial resumed. Further evi-

dence for the defendants in part. Trial is adjourned

until Tuesday, May 31, 1977 at 10:00 am. Grady, J.

5/31/77—Defendant’s, Sewerage Commission of the City of

Milwaukee and Metropolitan Sewerage Commission of

the County of Milwaukee, Motion to dismiss; Affidavit

of Ewald L. Moerke, Jr. with attachments.

6/2/77—Order dated 5/31/77: Trial is resumed. Motion of

Sewerage Commission, Metropolitan Sewerage Com-

mission and the City of Milwaukee, to dismiss the

above-captioned action now on trial is denied. Further

evidence presented for the defendants in part. Trial is

adjourned until Wednesday, June 1, 1977 at 9:30 am.

Grady, J.

6/3/77—Order dated 6/1/77: Trial is resumed. Further

evidence is presented by the defendants in part. Trial

is adjourned until June 2, 1977 at 9:30 am. Grady, J.

6/3/77—Order dated 6/2/77: Trial resumed. Further evi-

dence is presented for the defendants in part. Trial is

adjourned until Monday, June 27, 1977 at 10:00 am.

Grady, J.

6/22/77—Plaintiff’s motion to compel attendance of wit-

nesses at deposition.

6/23/77—Order dated 6/22/77: The Court orders certain

depositions to be taken. Cause taken off the trial call

on Monday, June 27, 1977. Grady, J.

6/24/77—Order dated 6/23/77: Ordered that the trial in

this cause is set to resume on Tuesday, June 28, 1977

at 9:30 am. Grady, J.

6/29/77—Order dated 6/28/77: Trial resumed. Further

evidence presented for the defendants in part. Trial

is adjourned until Wednesday 29, 1977 at 10:00 am.

Grady, J.

6/30/77—Order dated 6/29/77: Trial resumed, Further

evidence for defendants in part. Trial adjourned until

Thursday, June 30, 1977 at 10:30 am. Grady, J.

7/5/77—Order dated 6/30/77: Trial resumed, further evi-

dence for the defendants in part. Trial is adjourned

until Friday, July 1, 1977 at 1:30 am. Grady, J.

7/6/77—Order dated 7/1/77: Trial resumed, further evi-

dence for defendants and the trial is adjourned until

July 5, 1977 at 10:00 am. Grady, J.

7/6/77—Order dated 7/5/77: Trial resumed further evi-

dence for the defendants in part. Trial adjourned to

Wednesday, July 6, 1977 at 9:30 am. Grady, J.

7/7/77—Order dated 7/6/77: Trial is resumed further evi-

dence for the defendants in part. Trial is adjourned

to Thursday, July 7, 1977 at 9:30 am. Grady, J.

7/8/77—Order dated 7/7/77: Trial resumed, further evi-

dence for the defendants, in part. Trial adjourned

until Friday, July 3, 1977 at 9:30 am. Grady, J.

7/11/77—Order dated 7/8/77: Trial resumed, further evi-

dence for the defendant. Trial adjourned until Monday,

July 11, 1977 at 9:30 am. Grady, J.

7/12/77—Order dated 7/11/77: Trial resumed. Further

evidence for the defendants and the defendants rest.

Rebuttal evidence for the Plaintiff in part. Trial ad-

journed until Tuesday, July 12, 1977 at 10:00 am.

Grady, J.

7/14/77—Order dated 7/12/77: Trial resumed. Further

rebuttal evidence. Trial adjourned until Thursday, July

14, 1977 at 9:30 am. Grady, J.

7/18/77—Order dated 7/14/77: Trial held. Further rebut-

tal evidence presented. Trial adjourned until Friday,

July 15, 1977 at 9:30 am. Grady, J.

7/19/77—Order dated 7/15/77: Trial held. Further re-

buttal evidence presented. Trial is adjourned to Mon-

day, July 18, 1977 at 9:30 am. Grady, J.

7/20/77—Order dated 7/18/77: Trial held. Further rebut-

tal evidence presented. Trial is adjourned to July 19,

1977 at 10:00 am. Grady, J.

7/20/77—Order dated 7/19/77: Trial is not held. Trial con-

tinued to Wednesday, July 20, 1977 at 10:00 am. Grady,

7/22/77—Order dated 7/20/77: Trial held. Rebuttal evi-

dence concluded. Trial conference re evidence set on

July 21, 1977 at 3:00 pm. Grady, J.

7/22/77—Order dated 7/21/77: Trial conference re evi-

dence held. Cause is continued for final arguments to

Monday, July 25, 1977 at 9:30 am. Grady, J.

7-27-77—Order dated July 25, 1977: Trial held. Final ar-

guments in part. Trial adjourned until July 26, 1977

at 9:30 am. Grady, J.

7-27-77—Order dated July 26, 1977: Trial held. Final ar-

guments concluded. Cause taken under advisement for

decision on Friday, July 29, 1977 at 10:00 am. Grady,

8/2/77—Order dated 7/29/77: Trial concluded. The Court

finds in favor of the plaintiffs and against the defen-

dants on the issue of liability as to the three (3) counts

of the complaint. Counsel for the plaintiffs to prepare

and to submit by September 9, 1977 a judgment order

for entry. Grady, J.

8/30/77—Order dated 8/29/77: Enter findings of fact and

conclusions of Law (Draft) Grady, J.

9/12/77—Order dated 9/9/77 : Motion by defendants amend-

ing the findings of fact and conclusions of law ete.

denied. Depositions to commence the week of October

10, 1977 and are to end the week of November 1, 1977.

Evidentiary hearing set on November 14, 1977 at 10:00

am. Grady, J.

9/9/77—Defendant’s, City of Milwaukee, Notice of motion

and motion to amend;

9/9/77—Defendant’s, City of Milwaukee, compliance sched-

ule

9/9/77—Defendant’s, Sewerage Conimission City of Mil-

waukee, schedule of compliance with attachments

9/21/77—Plaintiff’s request for production of documents

9/21/77—Plaintiff’s motion to advance the date for defen-

dants’ response to plaintiff’s request for production of

documents

9/22/77—Order dated 9/21/77: The time for compliance

with plaintiff’s request for production of documents

will be shortened to October 3, 1977 and the plaintiff

shall have until October 3, 1977 to furnish documents

requested by defendant. Grady, J.

10/3/77—Defendants, D5&6, partial response to Plaintiff’s

document production request

10/3/77—Defendants’ D5&6, Defendant Sewerage Com-

missions’ request for production of documents

10-3-77—Plaintiff’s response to defendant Sewerage Com-

missions’ request for production of documents.

1-3-77—Defendants Sewerage Commission of the City of

Milwaukee and Metropolitan Sewerage Commission’s

second partial response to plaintiff’s documents pro-

duction request.

10-3-77—Defendants Sewerage Commission of the City of

Milwaukee and Metropolitan Sewerage Commission’s

third partial response to plaintiff’s documents produc-

tion request.

11/16/77—Order dated 11/14/77: Evidentiary hearing not

held. Hearing held on the proposed judgment order.

Draft judgment order to be submitted for entry. Grady,

11/16/77—Order dated 11/15/77: Enter judgment order

(See Draft) Grady, J.

11/16/77—Rule 58 judgment dated 11/15/77

1/13/78—Defendants’ Sewerage and Metropolitan, letter

dated 1/12/78 re additional exhibits

7-5-79—Opinion No. 77-2246 of USCA dated 6-29-79.

7-5-79—Certified copy of Judgment order from the U.S.

C.A., 7th Cir. dated April 26, 1979/ ... It is ordered

and adjudged by this court that the judgment of the

said District Court in this cause appealed from be,

and the same is hereby Arrirmep in part, Reversep

and Remanded in part, in accordance with the order of

this court entered, and the opinion of this court filed

this date.

11-16-79—Order dated November 15, 1979; Plaintiff has not

commented in writing on the proposed modified judg-

ment order submitted by defendant. Plaintiff may do

so by November 28, 1979, suggesting alternate lan-

guage for any provision with which it disagrees. De-

fendant may reply by December 7, 1979 (draft)—

Grapy, J.

11-30-79—Plaintiff State of Illinois’ 11-28-79 response to

court order of November 15, 1979.

12-6-79—Defendants The Sewerage Commission of the City

of Milwaukee and the Metropolitan Sewerage Com-

mission of the County of Milwaukee and City of Mil-

waukees’ 11-28-79 notice of filing; motion for modifica-

tion of judgment order; affidavit in support of motion

for modification of judgment order; affidavit in support

of motion for modification of judgment order.

12-6-79—Order dated December 5, 1979; Modified judg-

ment order to be entered at a later date. Hearing set

for Thursday, January 31, 1980 at 10 a.m.

12-11-79—Defendants’ 12-10-79 reply to “Illinois” response

to court order of November 15, 1979.

12-11-79—Intervening plaintiff State of Michigan’s 12-10-79

response to court order of November 15, 1979; attach-

ments.

1-8-80—Order dated 1-3-80: Plaintiff may submit its ver-

sion of the amended judgment order, the order is to be

submitted no later than January 14, 1980. (Drart).

2-1-80—Order dated January 31, 1980: Hearing held on

Amended Judgment order and on Supplement # 1 to

the Judgment order. (Drarr) Enter Amended Judg-

ment Order (Drarr) Enter Supplement # 1 to the

Judgment order. (Drarr) (2 Drarrs)—Grapy, J.

2-28-80-—Notice of appeal by defendants City of Milwau-

kee, the Sewerage Commission of the City of Milwau-

kee and the Metropolitan Sewerage Commission of the

County of Milwaukee.

3/13/80—Notice of Cross-Appeal by Plaintiff from the

Amended Judgment Order entered 1/31/80.

10-11-79—Order dated 10-10-79: Enter Motion by certain

defendants to modify judgment order. Defendants

Memorandum to be filed on October 22, 1979. Plaintiffs

response to be filed on November Ist, 1979; reply to

response due to be filed on November 8, 1979. The Mo-

tion will then be taken under advisement. Grapy, J.

3-27-80—Certified and transmitted record on appeal in one

volume consisting of documents filed on 7-5-79 through

and including 3-27-80.

1-31-80—Amended Judgment Order.

2-27-80—Defendants’ Notice of Appeal to USCA from

Amended Judgment Order.

3-12-80—Plaintiff’s Notice of Cross-Appeal to USCA from

Amended Judgment Order.

4-3-80—Defendants’ Application to USCA for Stay Pend-

ing Certiorari.

4-8-80—Order: USCA stays defendants’ appeal and plain-

tiff’s cross-appeal pending certiorari.

4-16-80—Order: USCA determines it lacks jurisdiction to

stay effect of judgments, decrees and orders of it and

USDC pending certiorari.

4-24-80—Defendants’ Application to U.S. Supreme Court

for Stay Pending Certiorari.

5-8-80—Order: Stay Pending Certiorari granted. Stevens,

Complaint of State of Illinois

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 72C-1253

PEOPLE OF THE STATE OF ILLINOIS ex rel. WiLL1AM J. Scort,

Attorney General of the State of Illinois, Plaintiff,

City or Mitwavukeez, Wisconstn, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Kenosua, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Racine, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or South Mitwavukegr, Wisconsin, a municipality

incorporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

Tue SEWERAGE CoMMISSION OF THE City or MILWAUKEE,

a municipality existing under the laws of the State of

Wisconsin, and a political subdivision thereof, and

Tue METROPOLITAN SEWERAGE COMMISSION OF THE COUNTY

oF MILWAUKEE, a municipality incorporated under the laws

of the State of Wisconsin, and a political subdivision thereof,

Defendants.

COMPLAINT

Now Comes plaintiff, rHz Propte or THE State or IL-

Nois ex rel. Wittiam J. Scott, Attorney General of the

State of Illinois, and complaining of defendants, City or

MILWAUKEE, Wisconsin, City or KenosHa, Wisconsin, Ciry

or Racing, Wisconsin, City or Sout MitwavuKkEe, WIscon-

SIN, THE SEWERAGE CoMMISSION OF THE City oF MILWAUKEE,

and THe Metropotiran SEWERAGE COMMISSION OF THE

County or Mitwavkeg, alleges as follows:

Count I

1. This Count arises under the Constitution and laws of

the United States. The matter in controversy exceeds the

sum or value of $10,000.00, exclusive of interest and costs.

This Court has jurisdicton of the count by virtue of 28

U.S.C. § 1331, as is set out more fully in the opinion of the

United States Supreme Court in Illinois v. City of Mil-

waukee, Wisconsin, No. 49 Original, April 24, 1972, a copy

of which opinion is attached hereto as Exhibit A [omitted],

and is made a part hereof.

2. Plaintiff, PeopLe or THE State or Inuinors ex rel.

Wiuuiam J. Scorr, Attorney General of the State of Illi-

nois, is a sovereign State of these United States, com-

prised of more than 11 million residents as of the 1970

United States census. Plaintiff is vitally concerned with

matters of environmental quality affecting its air, land,

and water, and in this regard has enacted comprehensive

environmental legislation (Illinois Environmental Protec-

tion Act of 1970, Ill. Rev. Stat. 1971, Ch. 111-1/2, § 1001 et

seq.), which legislation includes concern over pollution of

the waters of the State of Illinois whether such pollution

occurs as a result of discharges within or without Illinois

and prohibits such discharges. The relator, Wituiam J.

Scott, Attorney General of the State of Dlinois, is the

duly elected, qualified and acting Attorney General of the

State of Illinois, and is the chief legal officer for the plain-

tiff and in that capacity is empowered to bring, and does

bring, this suit on behalf of plaintiff.

3. The defendants, Ciry or MitwauKeEg, Wisconsin, City

or Kenosua, Wisconsin, City oF Racine, Wisconsin, City

or Sourn Mitwavukes, Wisconsin, SEWERAGE CoMMISSION OF

THE City oF Mitwavukeg, and MerropoLitan SEWERAGE Com-

MISSION OF THE County oF MILWAUKEE, are municipalities,

incorporated under the laws of the State of Wisconsin, po-

litical subdivisions thereof and hence citizens of that State.

The defendant Sewerage Commission of the City of Mil-

waukee is charged by it with the duty of collecting, trans-

mitting, and disposing of the City’s sewage, while the de-

fendant Metropolitan Sewerage Commission of the County

of Milwaukee has the responsibility for the transmission,

treatment, and disposal of sewage from territory located

within its drainage area.

4. At all times pertinent to this complaint, the State of

Illinois has been and now is the owner in trust, for the

benefit of its citizens, of the waters of Lake Michigan

within the State’s territorial boundaries, and the protector

and guardian of these waters for the use, needs, and en-

joyment of its citizens and inhabitants, along the [linois

shore from the Wisconsin-Illinois boundary to the Indiana-

Illinois boundary.

5. From ancient geological periods, Lake Michigan has

been and now is a natural body of fresh water. It is bor-

dered by the States of Illinois, Wisconsin, Michigan, and

Indiana. Frequently, natural currents and atmospheric

conditions cause the waters of Lake Michigan to flow north

to south along the shoreline of Lake Michigan from a point

north of the City of Milwaukee, past the cities of Milwau-

kee, South Milwaukee, Racine, and Kenosha, Wisconsin,

past the Wisconsin-Illinois boundary and along the Illinois

shore, and thence southerly and easterly past the Indiana-

Illinois boundary and along the Indiana shore. Lake Michi-

gan has been and is now a vital source of public water

supply for many municipalities, citizens, and inhabitants of

the State of Illinois, and has been and is now used as a

‘

place of recreation, relaxation, and enjoyment by numer-

ous citizens and inhabitants of the State of Ilinois.

6. The defendant municipalities and political subdivi-

sions of the State of Wisconsin are located in the State

of Wisconsin at and near the shoreline of Lake Michigan,

as is demonstrated by Exhibit B [omitted], attached to

this complaint and made a part hereof. The defendant

municipalities and political subdivisions of the State of

Wisconsin are now authorizing, causing, permitting, or

allowing, and have for a long time heretofore authorized,

caused, permitted, or allowed, the discharge of matter and

effluents into Lake Michigan, consisting of untreated raw

sewage or improperly or inadequately treated sewage, which

sewage originates from or within the defendants’ respective

cities or sanitary sewerage systems, all controlled and op-

erated by the defendant municipalities, their employers,

servants, or agents. These matters and effluents discharged

into the waters of Lake Michigan are contaminants which

cause serious and substantial deterioration in the quality

of Lake Michigan waters within the territorial boundaries

of the State of Illinois.

7. Said deterioration includes a lessening in the quality

of Illinois’ Lake Michigan waters as a source of drinking

water, body-contact recreation, sailing, fishing, and other

legitimate uses of Lake Michigan by the Prope or THE

Strate or Inuinots.

&. The above-described damage to the Lake Michigan

territorial waters of the State of Illinois is based upon

the following factors:

(a) The sewage and contaminants discharged by or

with the consent of the defendant municipalities and

political subdivisions of the State of Wisconsin into

Lake Michigan frequently are carried by the flow of

the waters, natural currents, and atmospheric condi-

tions southward past the Wisconsin-Illinois boundary

and into Illinois territorial waters. The sewage and

contaminants thus carried into Lake Michigan terri-

torial waters of Illinois have the above-described dam-

aging effects on Illinois waters. Furthermore, said

sewage and contaminants thus carried into Lake Mich-

igan territorial waters of Illinois contain viruses,

pathogens, and various types of bacilli which are

harmful to human beings and animals, and which can

cause organic malfunction and disease in the human

body and in animal bodies; hence, they constitute a

severe danger to the health, safety, and welfare of the

citizens and inhabitants of the State of Illinois, who

make use or attempt to make use of the waters of Lake

Michigan within the boundaries of Illinois.

(b) The Lake Michigan territorial waters of Illinois

and Wisconsin share a mutual aquatic ecology. Dam-

age to aquatic organisms and to water quality in the

Wisconsin territorial waters of Lake Michigan will

result in a corresponding damaging impact on aquatic

organisms and water quality in the Dlinois territorial

waters of Lake Michigan.

9. The defendant municipalities and political subdivi-

sions of the State of Wisconsin, and each of them, owe a

duty to riparian land owners and water users and to the

PEOPLE OF THE Strate oF ILLINoIs not to pollute Lake Michi-

gan in the manner heretofore described and owe a further

duty to preserve the water quality and ecology of Lake

Michigan so as not to endanger the health, safety, and

welfare of the citizens and inhabitants of the State of

Illinois.

10. The defendant municipalities and political subdivi-

sions of the State of Wisconsin have failed and continue

to fail to use proper and approved methods and practices

to adequately and properly treat and dispose of the sewage

emanating from their localities or originating in the sewer-

age works owned or operated by them; they have thereby

neglected to exercise due and proper care and diligence in

conducting and carrying out their municipal responsibili-

ties and have thus injuriously affected the rights and legal

interests of the citizens and inhabitants of the State of

of Illinois.

11. Notwithstanding the fact that the defendant munici-

palities and political subdivisions of the State of Wiscon-

sin have been repeatedly urged to improve their sewerage

systems and to halt the discharge of sewage and contami-

nants into the waters of Lake Michigan, they have until now

failed to do so.

12. The discharge of the sewage and contaminants by

defendants into the waters of Lake Michigan, and the con-

sequent carrying of that sewage and contaminants by the

natural flow and currents and atmospheric conditions into

Illinois territorial waters, and particularly into the waters

adjacent to the Illinois shore, causes and constitutes a

public nuisance, injuriously affecting the health, safety,

and welfare of the citizens and inhabitants of the State of

Illinois.

13. To the best of plaintiff’s knowledge and belief, the

defendant municipalities and political subdivisions of the

State of Wisconsin continue and will continue the wrong-

ful act of discharging sewage and contaminants into Lake

Michigan unless restrained and enjoined by order of court.

Plaintiff has no adequate remedy save that afforded by a

court of equity. The injuries to Lake Michigan and to the

citizens and inhabitants of Illinois are irreparable, and

only an order of this Court can lead to the elimination, or

at least the minimizing, of the injuries to plaintiff.

Wuererore, plaintiff prays that the Court grant the

following relief :

(a) That the Court permanently restrain defendants,

_and each of them, from discharging raw sewage, or

inadequately or improperly treated sewage, into the

waters of Lake Michigan;

(b) That the Court order such further relief as

equity may require and as the Court may deem proper

or appropriate; and

ing expert witness fees, and scientific study and re-

search costs, against defendants.

Count II

1. This count is brought by the relator, Witu1am J. Scott,

Attorney General of the State of Illinois, for and on behalf

of the PeopLe or THE State or ILuINoIs, pursuant to the

terms and provisions of the Illinois “Ervironmental Pro-

tection Act,” (Public Act 76-2429), approved June 29, 1970,

Ill. Rev. Stat. 1971, Ch. 111 4, § 1001 et seq., wherein and

whereby he is empowered to bring actions to enforce the

provisions of the aforesaid Act by injunction or recovery

of penalties in a civil action, or by both injunction or recov-

ery of penalties.

2.-8. As paragraphs 2 through 8 of Count II, the Prope

OF THE State oF ILLinors incorporate by reference and

allege as though fully set forth herein the allegations of

paragraphs 2 through 8 of Count IT [sic].

9. The discharge into Lake Michigan waters of sewage

and contaminants by defendants and the resultant injury

to Illinois territorial waters of Lake Michigan described

above constitutes “water pollution” as defined in the IIli-

nois Environmental Protection Act, Ill. Rev. Stat. 1971,

Ch. 111 14, § 1003(n), in that said discharge:

“ec

. is such alteration of the physical, thermal,

chemical, biological or radioactive properties of any

waters of the State, or such discharge of any contami-

nant into any waters of the State, as will or is likely

to create a nuisance or render such waters harmful or

detrimental or injurious to public health, safety or wel-

fare, or to domestic, commercial, industrial, agricul-

tural, recreational, or other legitimate uses, or to live-

stock, wild animals, birds, fish, or other aquatic life.”

10. By causing water pollution in Illinois waters, defen-

dants are in violation of Section 12(a) of the Illinois En-

vironmental Protection Act, Ill. Rev. Stat. 1971, Ch. 111 14,

§ 1012(a).

11. Under Section 42 of the Illinois Environmental Pro-

tection Act, persons violating the Act by causing water

pollution of Illinois waters may be enjoined from continu-

ing such violations upon an action for injunctive relief

brought by the Attorney General. Ill. Rev. Stat. 1971, Ch.

111 14, § 1042.

12. The relator, Witu1am J. Scott, has reason to believe

and fears that, unless restrained by order of this Court,

defendants will continue to cause, permit or allow raw

sewage, or inadequately or improperly treated sewage to

be discharged into the waters of Lake Michigan, and that

thereby defendants will continue to cause water pollution

of the Illinois territorial waters of Lake Michigan.

13. The PropLe or THE State or ILuinors are without

remedy, save in a court of equity.

Wuererorg, plaintiff prays that the Court grant the

following relief:

(a) That the Court permanently restrain defendants,

and each of them, from discharging raw sewage, or

inadequately or improperly treated sewage, into the

waters of Lake Michigan;

(b) That the Court order such further relief as

equity may require and as the Court may deem proper

or appropriate; and

ing expert witness fees, and scientific study and re-

search costs, against defendants.

Count III

1. This count is brought by the relator, Witi1aM J. Scort,

Attorney General of the State of Illinois, for and on behalf

of the PeorpLe or THE Stare or ILuino1s, pursuant to the

Attorney General’s common-law power to seek abatement

of a public nuisance by means of a court-imposed injunc-

tive order.

2.-8. As paragraphs 2 through 8 of Count III, the PeopLe

OF THE Stare oF InuiNors incorporate by reference and

allege as though fully set forth herein the allegations of

paragraphs 2 through 8 of Count I.

9. The activities of defendants, in permitting, allowing

or causing the discharge of raw sewage, or inadequately or

improperly treated sewage, into the waters of Lake Michi-

gan in such a manner as to cause the substantial injuries

to the Lake Michigan territorial waters of Illinois, as de-

scribed above, constitute a public nuisance under the com-

mon law of Illinois.

10. The Prope or tHe Strate or Iuuinois are without

remedy, save in a Court of equity.

Wuererorg, plaintiff prays that the Court grant the

following relief :

(a) That the Court permanently restrain defen-

dants, and each of them, from discharging raw sewage,

or inadequately or improperly treated sewage, into

the waters of Lake Michigan;

(b) That the Court order such further relief as

equity may require and as the Court may deem proper

or appropriate; and

ing expert witness fees, and scientific study and re-

search costs, against defendants.

/s/ WituiaMm J. Scorr

William J. Scott

Attorney General

State of Illinois

Or CounsEL:

Davin C. Lanperar, Chief

Environmental Control Division

—and—

Harvey M. SuHetpon, Chief

Northern Region

Environmental Control Division

188 West Randolph Street

Suite 2315

Chicago, Illinois 60601

(312) 793-2491

Complaint of State of Michigan

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 72C-1253

PEOPLE OF THE StaTE OF ILiNots, ex rel. Wiit1am J. Scort,

Attorney General of the State of Illinois, Plaintiff,

Prop_e oF THE State oF Micuican, Intervening Plaintiff,

Vs.

City or MILWAUKEE, WISCONSIN, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Kenosua, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Racine, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political sub’ vision thereof, and

City or SoutH MinwauKer, Wisconsin, a municipality

incorporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

THe SeweraGE CoMMISSION OF THE City oF MILWAUKEE,

a municipality existing under the laws of the State of

Wisconsin, and a political subdivision thereof, and

Tue METROPOLITAN SEWERAGE COMMISSION OF THE CoUNTY

or MILWAUKEE, a municipality incorporated under the laws

of the State of Wisconsin, and a political subdivision thereof,

Defendants.

COMPLAINT

Now ComEs THE PEOPLE OF THE State oF Micuican, inter-

vening plaintiff, by their attorney, Frank J. Kewwey, Attor-

ney General of the State of Michigan and complaining of

defendants, Crry or MitwauKkesr, Wisconsin, City or Ken-

osHA, Wisconsin, City oF Racing, Wisconsin, City oF

Sourn MitwavukeEg, Wisconsin, THE SEWERAGE CoMMISSION

OF THE City oF MitwauKEEg, and THE METROPOLITAN SEWER-

AGE CoMMISSION OF THE County oF MILWAUKEE, alleges as

follows:

Jurisdiction

1. This matter arises under the Constitution and laws

of the United States. The matter in controversy exceeds

the sum or value of $10,000, exclusive of interests and

costs. This Court has jurisdiction of the matter by virtue

of 28 USC 1331.

The Parties

2. Intervening plaintiff, the PropLe or THE StaTE OF

Micuican, is a sovereign state of these United States,

comprised of more than 8,875,000 residents as of the 1970

census. Intervening plaintiff is vitally concerned with mat-

ters of environmental quality affecting its air, land, and

water, and in this regard has enacted comprehensive legis-

lation. The Michigan Water Resources Commission Act,

being MCLA 323.1 et seq, MSA 3.521 et seq and the Michi-

gan Water Pollution Control Act of 1970, being MCLA

323.331 et seq, MSA 3.533(201) et seq for example, ex-

presses the concern by the State of Michigan over the

pollution of its waters. Frank J. Keiiey, Attorney General

of the State of Michigan, is the chief legal officer for the

intervening plaintiff, and in that capacity is empowered to

bring, and does bring, this suit on behalf of the intervening

plaintiff.

3. The defendants, Ciry or MitwavuKeEr, Wisconsin, City

or KenosHa, Wisconsin, City or Racine, Wisconsin, Crry

or South Mitwavukeg, Wisconsin, SEwerAcGeE ComMMISsION

or THE City oF Mi.waukes, and MetropoLitan SEWERAGE

CoMMISSION OF THE County oF MILWAUKEE, are municipali-

ties, incorporated under the laws of the State of Wisconsin,

political subdivisions thereof and hence citizens of that

State. The defendant Sewerage Commission of the City of

Milwaukee is charged by law with the duty of collecting,

transmitting, and disposing of the City’s sewage, while the

defendant Metropolitan Sewerage Commission of the

County of Milwaukee has the responsibility for the trans-

mission, treatment, and disposal of sewage from territory

located within its drainage area.

4. At all times pertinent to this complaint, the State of

Michigan has been and now is the owner in trust, for the

benefit of its citizens, of the waters of Lake Michigan with-

in the State’s territorial boundaries, and the protector and

guardian of these waters for the use, needs, and enjoy-

ment of its citizens and inhabitants.

Lake Michigan

5. From ancient geological periods, Lake Michigan has

been and now is a natural body of fresh water. It is bord-

ered by the States of Illinois, Wisconsin, Indiana, and

Michigan. Lake Michigan has been and is now used as a

place of recreation, relaxation, and enjoyment by numerous

citizens and inhabitants of the State of Michigan. Addi-

tionally, Lake Michigan has been and is now a vital source

of public water supply for many municipalities, citizens

and inhabitants of the State of Michigan.

The Pollution

6. The defendant municipalities and political subdivi-

sions of the State of Wisconsin are located in the State of

Wisconsin at and near the shoreline of Lake Michigan.

The defendant municipalities and political subdivisions of

the State of Wisconsin are now authorizing, causing, per-

mitting, or allowing, and have for a long time heretofore

authorized, caused, permitted, or allowed, the discharge of

matter and effluents into Lake Michigan, consisting of un-

treated raw sewage or improperly or inadequately treated

sewage, which sewage originates from or within the de-

fendants’ respective cities or sanitary sewerage systems,

all controlled and operated by the defendant municipalities,

their employees, servants, or agents. These matters and

effluents discharged into the waters of Lake Michigan are

contaminants which cause serious and substantial deteri-

oration to the quality of Lake Michigan waters.

7. Said deterioration includes a lessening in the quality

of Lake Michigan’s waters as a source of drinking water,

body-contact recreation, sailing, fishing, and other legiti-

mate uses of Lake Michigan by the Propie or THE StaTE

oF MICHIGAN.

8. The above-described damage to Lake Michigan is based

on the following factors:

(a) The sewage and contaminants discharged by or

with the consent of the defendant municipalities and

political subdivisions of the State of Wisconsin con-

tain viruses, pathogens, and various types of bacilli

which are harmful to human beings and animals, and

which can cause organic malfunction and disease in the

human body and in animal bodies; hence, they consti-

tute a severe danger to the health, safety, and welfare

of the citizens and inhabitants of the State of Michi-

gan who make use or attempt to make use of the

waters of Lake Michigan.

(b) The Lake Michigan territorial waters of Michigan

and Wisconsin share a mutual aquatic ecology. Dam-

age to aquatic organisms and to water quality in the

Wisconsin territorial waters of Lake Michigan will

result in a corresponding damaging impact on aquatic

organisms and water quality in the Michigan terri-

torial waters of Lake Michigan.

9. The defendant municipalities and political subdivi-

sions of the State of Wisconsin, and each of them, owe a

duty to riparian land owners and water users and to the

PEOPLE OF THE State or Micuican not to pollute Lake

Michigan in the manner heretofore described and owe a

further duty to preserve the water quality and ecology of

Lake Michigan so as not to endanger the health, safety,

and welfare of the citizens and inhabitants of the State of

Michigan.

10. The defendant municipalities and political subdivi-

sions of the State of Wisconsin have failed and continue

to fail to use proper and approved methods and practices

to adequately and properly treat and dispose of the sewage

emanating from ‘their localities or originating in the sew-

erage works owned or operated by them; they have thereby

neglected to exercise due and proper care and diligence in

conducting and carrying out their municipal responsibili-

ties and have thus injuriously affected the rights and legal

interests of the citizens and inhabitants of the State of

Michigan.

11. Notwithstanding the fact that the defendant munici-

palities and political subdivisions of the State of Wiscon-

sin have been repeatedly urged to improve their sewerage

systems and to halt the discharge of sewage and contami-

nants into the waters of Lake Michigan, they have until

now failed to do so.

12. The activities of defendants, in permitting, allowing

or causing the discharge of raw sewage, or inadequately

or improperly treated sewage, into the waters of Lake

Michigan in such a manner as to cause substantial injuries

to the waters of Lake Michigan, as described above, con-

stitute a public nuisance under the common law of the

United States and of Michigan.

13. To the best of plaintiff’s knowledge and belief, the

defendant municipalities and political subdivisions of the

State of Wisconsin continue and will continue the wrong-

ful act of discharging sewage and contaminants into Lake

Michigan unless restrained and enjoined by order of court.

Plaintiff has no adequate remedy save that afforded by a

court of equity. The injuries to Lake Michigan and to the

citizens and inhabitants of Michigan are irreparable, and

only an order of this court can lead to the elimination, or

at least the minimizing, of the injuries to intervening

plaintiff.

The Relief

Wuererore, plaintiff prays that the Court grant the

following relief:

(a) That the Court permanently restrain defendants,

and each of them, from discharging raw sewage, or in-

adequately or improperly treated sewage, into the

waters of Lake Michigan;

(b) That the Court order such further relief as equity

may require and as the Court may deem proper or

appropriate; and

expert witness fees, and scientific study and research

costs, against defendants.

Frank J. Keuuey

Attorney General

/3/ Hucu B. ANDERSON

Hugh B. Anderson

Assistant Attorney General

/s/ CHaries S. ALPERT

Charles S. Alpert

Assistant Attorney General

Attorneys for Intervening Plaintiff

Business Address:

025 West Ottawa Street

Lansing, Michigan 48913

Phone: 517/373-1129

Dated: June 29, 1972

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS :

EASTERN DIVISION -

No. 72C-1253

PEOPLE OF THE StaTE oF ILLINOIS, ex rel. WitLiam J. Scort,

Attorney General of the State of Illinois, Plaintiff,

Prop_e or THE State oF Micuican, Intervening Plaintiff,

VS.

City or MinwavuKkeEg, Wisconsin, et al., Defendants.

NOTICE OF HEARING

To: William J. Scott City of Racine

Attorney General Racine, Wisconsin

State of Illinois i ;

188 West Randolph Street ae en Seneeee

South Milwaukee,

Suite 2315 Wisconsin

Chicago, Illinois 60601

City of Milwaukee

Milwaukee, Wisconsin

City of Kenosha

Kenosha, Wisconsin

Sewerage Commission of

the City of Milwaukee

Milwaukee, Wisconsin

The Metropolitan Sewerage

Commission of the

County of Milwaukee

Milwaukee, Wisconsin

Puiease TakeE Notice that a motion of the State of Michi-

gan for leave to intervene as party plaintiff, of which the

annexed is a true copy, will be brought on for hearing be-

fore the United States District Court for the Northern

District of Illinois, Eastern Division, at a date, time and

place to be set by the Court.

Dated: June 29, 1972

Frank J. Ke.iey

Attorney General

/s/ Hucu B. ANDERSON

Hugh B. Anderson

Assistant Attorney General

/s/ CHARLES ALPERT

Charles S. Alpert

Assistant Attorney General

Attorneys for Intervening Plaintiff

Business Address:

525 West Ottawa Street

Lansing, Michigan 48913

Phone: 517/373-1129

Answer of the Metropolitan Sewage Commission of the County of

Milwaukee to Illinois’ Complaint

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Civil Action No. 72-C-1253

PEOPLE OF THE STATE OF ILLINOIS ex rel. Witit1AM J. Scott,

Attorney General of the State of Illinois, Plaintiff,

Prop_e oF THE State oF Micuican, Intervening Plaintiff,

Vv.

City or MILWAUKEE, WISCONSIN, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or KenosHa, WIsconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Ractng, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or South Mitwavkegr, WIsconsin, a municipality

incorporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

Tue Sewerace CoMMISSION OF THE City oF MILWAUKEE,

a municipality existing under the laws of the State of

Wisconsin, and a political subdivision thereof, and

Tue Merropotitan SEWERAGE CoMMISSION OF THE CouUNTY

or MiLWaAvUKEE, a municipality incorporated under the laws

of the State of Wisconsin, and a political subdivision thereof,

Defendants.

ANSWER OF THE DEFENDANT, METROPOLITAN SEWERAGE

COMMISSION OF THE COUNTY OF MILWAUKEE TO THE

STATE OF ILLINOIS

For its Answer to the Complaint of the State of Illinois,

the Metropolitan Sewerage Commission of the County of

Milwaukee by Schroeder, Gedlen, Riester & Moerke, its

attorneys, admits, denies and alleges the following:

Count I

1. Admits the allegations of paragraph 1 of the Com-

plaint.

2. Admits that the State of Illinois is a sovereign state

of the United States and is comprised of more than 11

million citizens; alleges it is without sufficient knowledge

or information upon which to form a reasonable belief as

to the truth of each and every other allegation of Para-

graph 2 of the Complaint and therefore denies them and

puts plaintiff to its proof thereof.

3. Admits that the cities of Milwaukee, Kenosha, Racine,

and South Milwaukee are cities duly incorporated under

the laws of Wisconsin; denies each and every other alle-

gation of Paragraph 3 of the Complaint.

4. Denies each and every allegation of Paragraph 4 of

the Complaint.

5. Admits that Lake Michigan is a natural body of fresh

water bordered by the states named; alleges it is without

sufficient knowledge or information upon which to form a

reasonable belief as to the truth of each and every other

allegation of Paragraph 5 of the Complaint and therefore

denies each of them and puts plaintiff to its proof thereof.

6. Admits that Exhibit B accurately shows the general

geographic location of each defendant in relation to the

shoreline of Lake Michigan; denies each and every other

allegation of Paragraph 6 of the Complaint.

7. Denies each and every allegation of Paragraphs 7, 8,

9, 10, 11, 12 and 13 of the Complaint.

Count II

1. Alleges it is without sufficient knowledge or informa-

tion upon which to form a reasonable belief as to the truth

of the allegations of Paragraph 1 and therefore denies same

and puts plaintiff to its proof thereof.

2-8. Realleges and incorporates by reference as if fully

set forth herein its responses to the allegations of Para-

graphs 2-8 of Count I of the Complaint.

9. Denies each and every allegation of Paragraphs 9 and

10 of the Complaint.

10. Alleges it is without sufficient knowledge or infor-

mation upon which to form a reasonable belief as to the

truth of the allegations of Paragraph 11 of the Complaint

and therefore denies same and puts plaintiff to its proof

thereof.

11. Denies each and every allegation of Paragraph 12

of the Complaint.

Count III

1. Alleges it is without sufficient knowledge or informa-

tion upon which to form a reasonable belief as to the truth

of the allegations of Paragraph 1 of the Complaint and

therefore denies same and puts plaintiff to its proof thereof.

2. Realleges and incorporates by reference as if fully

set forth herein its responses to Paragraphs 2-8 of Count I

of the Complaint.

9. Denies each and every allegation of Paragraphs 9 and

10 of the Complaint.

AFFIRMATIVE DEFENSES

For affirmative defenses to the allegations of the Com-

plaint, this defendant alleges that:

[

THis Derenpant Exercises No Retevant LecaL Powers

Or Duties Anp Has Done No Act Rextevant To THE

ComPLAIN’.

This defendant is a Commission consisting of three

members charged by 8.59.96, Wisconsin Statutes with

performing certain duties specified therein on behalf

of the Metropolitan Sewerage District of the County

of Milwaukee, which district is a municipal body

corporate under the laws of Wisconsin of tle type

and nature generally classified as a “special purpose

district”.

Defendant’s relevant powers and actions are limited

by the laws of Wisconsin to the financing and the

construction of interceptor sanitary sewers in that

part of the Metropolitan Sewerage District located

outside of the corporate limits of the City of Mil-

waukee,

Upon completion of the construction of such sewers

they are turned over to the Sewerage Commission of

the City of Milwaukee for operation and maintenance

as required by law.

Plans and specifications for sewers to be constructed

by this defendant are by law required to be approved

by the Sewerage Commission of the City of Milwaukee

and the Wisconsin Department of Natural Resources

prior to the letting of contracts for their construction.

Treatment of wastes collected and transmitted in

sewers constructed by this defendant is performed by

the Sewerage Commission of the City of Milwaukee

as required by the applicable laws of the State of

Wisconsin.

6. This defendant does not own or have otherwise sub-

ject to its direction and control any operating sewers

or sewer systems or otherwise collect or transmit

sanitary, industrial or other waste effluents.

PuaintirF Is Itsetr Guittry Or Conpuct Sucu As Is

CoMPLAINED OF.

1. Upon information and belief there have existed and

do exist substantial sources of wastes within the State

of Illinois which contaminate the waters of Lake

Michigan in the manner complained of in the Com-

plaint.

2. Upon information and belief from time to time the

winds and other geophysical conditions cause waters

of Lake Michigan to travel in a Northerly direction

conveying said wastes from Illinois waters to Wis-

consin waters interfering with the use of Wisconsin

waters for recreation and public and other water

supply.

3. Upon information and belief plaintiff has failed to

properly prevent the substantial contamination of and

damage to Lake Michigan by waste discharges subject

to plaintiff’s regulation and control which are a direct

and proximate cause of any damage to plaintiff of the

nature complained of.

III

Tue Conpuct Or MaLFEASANCE Or PLAINTIFF AND OTHERS

Is An INTERVENING ProxrmaTe Cause Or Any Damace To

PLAINTIFF.

1. Upon information and belief, waste discharges ema-

nating and continuing to emanate from sources within

the State of Indiana which the regulatory officials at

the State of Indiana have neglected or otherwise failed

to properly control or prevent have contaminated and

damaged the waters of Lake Michigan and are a

direct and proximate cause of any damage to plaintiff

of the nature complained of.

Upon information and belief waste discharges emanat-

ing and continuing to emanate from sources within

the State of Michigan which the regulatory officials of

the State of Michigan have neglected or otherwise

failed to control or prevent have contaminated and

damaged the waters of Lake Michigan and are a

direct and proximate cause of any damage to plaintiff

of the nature complained of.

3. Upon information and belief waste discharges emanat-

ing and continuing to emanate from sources within

the State of Illinois which the regulatory officials of

the State of Illinois have neglected or otherwise failed

to properly control or prevent have contaminated or

damaged Lake Michigan and are a direct and proxi-

mate cause of any damage to plaintiff of the nature

complained of.

Puaintirr Has SusstantTIALLy Viotatep Its Riparian

Duties Anp Has AppropriATED AN UNREASONABLE AND

IneQuiITaBLE SHare Or Tue Use Or Lake Micuican To

ITSELF.

1. Upon information and belief use of Wisconsin waters

of Lake Michigan for recreation, water supply and

transportation have been and continue to be substan-

tially impaired and damaged by the illegal diversion

of substantial quantities of water from Lake Michigan

by the City of Chicago with the knowledge, authoriza-

tion and consent of plaintiff.

2. Upon information and belief the diversion of water

from Lake Michigan by and for the City of Chicago

is a direct and proximate cause of any transportation

and concentration of wastes originating in other states

in Illinois waters in the manner complained of.

3. Upon information and belief the political subdivisions

and citizens of the State of Illinois have made un-

reasonable excessive and illegal appropriations of the

waters of Lake Michigan to their own use and benefit

and the benefit of plaintiff to the detriment of other

riparian users of Lake Michigan by diversion of said

waters for purposes other than human consumption,

contamination of said waters by discharge of damag-

ing wastes, filling substantial portions of the bed of

Lake Michigan inevitably depriving others of the use

thereof and otherwise damaging the natural ecology

and utility of the waters of Lake Michigan to the great

detriment of other riparian users.

Tuis Derenvant Has Compuiep With ALL Known Stanp-

ARDS AND CRITERIA GOVERNING Its Arrairs Anp Has Irre--

vocaBLy EixpENDED Larce Sums In Rewiance THEREON;

PuaintiFF Is Guitty Or Lacues Anp Is Estorprep THEREBY.

1. This defendant stands in full compliance with all

known standards, regulations and orders promulgated

by duly empowered regulatory agencies of the United

States and the State of Wisconsin.

2. This defendant has completed a substantial portion

of its planned construction program to provide sewers

to its service area reasonably contemplated to be ade-

quate beyond the year 2000 involving expenditures of

vast sums of money and the district has currently

budgeted $21,450,000 for new construction expendi-

tures in 1973 in reliance upon all currently known

applicable standards and criteria. —

3. It is essential to the orderly and efficient conduct of

the duties of this defendant pursuant to the laws of

Wisconsin that the standards and criteria to be met

in the performance of this defendants duties be clear,

unequivocal and known prior to the commencement of

performance of the construction work.

4, The plans and specifications for all construction work

undertaken or planned by this defendant have been

filed with and approved by the Wisconsin Department

of Natural Resources and its predecessor entities and

with the United States Environmental Protection

Agency and its predecessor entities and have at all

relevant times been matters of public knowledge and

record.

5. At no time prior to the commencement of this action

did plaintiff make known to this defendant any com-

plaint or dissatisfaction with this defendant’s conduct

of its statutory affair.

6. It would be unjust, inequitable and substantially

wasteful of public funds to impose at this late time

new and previously unknown standards and criteria

to the work done and being done by this defendant.

Use Or Lake Micuican For Ditution Anp Dispersion Or

MunicipaL Wastes Is A REASONABLE Riparian Use Or Sucu

LAKE.

1. This defendant has available no reasonable and prac-

tical or legal alternative under generally recognized

technology except to construct sewers which connect

to treatment plants which utilize Lake Michigan for

the purpose of ultimately diluting and dispersing

treated waste waters.

2. This defendant has no legal direction or control over

the treatment facilities to which sewers constructed

by it are ultimately connected.

3. The use of the waters of Lake Michigan for dilution

and dispersion of wastes originating in sewers con-

structed by this defendant (which are operated, regu-

lated and maintained by others) is of great and over-

riding necessity and importance to the protection of

the health, safety and general welfare of the public

and is reasonable in relation to such alteration of the

physical, chemical or biological properties of such

waters as may directly and proximately result there-

from, if any, and the uses of such waters by others,

including citizens and political subdivisions of plain-

tiff.

VII

FrperaL Water PoLiution Controt Act AMENDMENTS OF

1972 Vest Primary Jurispiction In Untrep States Envi-

RONMENTAL Protection AGENcy AND EsTaBLISHES COMPLETE

Anp ApEequaTE ADMINISTRATIVE Remepigs To PLAINTIFF.

1. The Congress of the United States duly enacted

Public Law 92-500 entitled “Federal Water Pollution

Control Act Amendments of 1972”.

2. Said act became effective on October 18, 1972. |

3. Said act sets forth a completely new approach to

federal regulation of water pollution premising such

regulation upon consideration of the quantity and

quality of the effluent discharged by individual sources

or categories of similar individual sources and the

state of technology of specified points in time, rather

than solely upon the desired standard of quality of

the receiving waters as in the past.

Said act vests in the United States Environmental

Protection Agency powers to establish standards and

criteria to be imposed upon individual sources of

waste discharge and categories of similar individual

sources of waste discharge, requires licenses or per-

mits incorporating such standards and criteria as a

condition of lawful discharge of waste and establishes

administrative and judicial procedures for the en-

hancement of such standards.

5. Lake Michigan is a federally navigable water.

6. All sources of waste discharge into Lake Michigan

10.

11.

are subject to said act.

Said act establishes that national policy is to regulate

waste discharge in a comprehensive, planned manner

coordinating federal and state financial investment

with regulatory programs.

A United States District Court may adjudicate only

those controversies properly brought before it.

The United States Environmental Protection Agency

has available to it powers, funds and scientific and

policy making expertise not available to this court or

to the parties to this litigation.

The legal remedy sought by plaintiff in this action

can be accomplished by the United States Environ-

mental Protection Agency.

It is in the best interests of the parties, of the general

public and of justice that the control of waste dis-

charges into Lake Michigan be accomplished by the

United States Environmental Protection Agency in a

comprehensive manner regulating similarly all these

similarly situated utilizing the expertise and scientific

resources available, rather than for the courts to

determine such matters by adjudicating these cases

brought before them.

12. Said act would permit plaintiff to seek judicial reme-

dies against any defendant which failed to comply

with the requirements of the Environmental Protec-

tion Agency or against the Environmental Protection

Agency in the event it believes it has been aggrieved

by the administrative action or inaction by the En-

vironmental Protection Agency.

ATTORNEY FOR METROPOLITAN SEWERAGE

CoMMISSION :

/s/ Kwaup L. Morrkg, Jr.

Ewald L. Moerke, Jr.

Schroeder, Gedlen, Riester & Moerke

108 West Wells Street

Milwaukee, Wisconsin 53203

Tele: 272-4060

Answer of the Metropolitan Sewage Commission of the County of

Milwaukee to Michigan’s Complaint

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Civil Action No. 72-C-1253

PEOPLE OF THE STATE OF ILLINOIS, ex rel. WiLL1AM J. Scott,

Attorney General of the State of Illinois, Plaintiff,

PEOPLE OF THE Sate oF Micuican, Intervening Plaintiff,

Vv.

City or Mi.wavkEsE, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Kenosua, WIsconsIN, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Ractne, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or SoutH Mitwaukez, WIsconsin, a municipality

incorporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

Tue SEWERAGE CoMMISSION OF THE City oF MILWAUKEE,

a municipality existing under the laws of the State of

Wisconsin, and a political subdivision thereof, and

Tue Merropotiran SEWERAGE CoMMISSION OF THE CoUNTY

or MILWAUKEE, a municipality incorporated under the laws

of the State of Wisconsin, and a political subdivision thereof,

Defendants.

| PREVIOUS PAGE WAS BLANK

EEE OEOEAESES OOOO

ANSWER OF METROPOLITAN SEWERAGE COMMISSION OF

THE COUNTY OF MILWAUKEE, DEFENDANT HEREIN, TO THE

COMPLAINT OF THE INTERVENING PLAINTIFF. PEOPLE OF

THE STATE OF MICHIGAN

For its Answer to the Complaint of the State of Michigan,

the Metropolitan Sewerage Commission of the County of

Milwaukee by Schroeder, Gedlen, Riester & Moerke, its

attorneys, admits, denies and alleges the following:

Count I

1. Admits the allegations of paragraph 1 of the Com-

plaint.

2. Admits that the State of Michigan is a sovereign state

of the United States and is comprised of more than 8

million citizens; alleges it is without sufficient knowledge

or information upon which to form a reasonable belief as

to the truth of each and every other allegation of Para-

graph 2 of the Complaint and therefore denies them and

puts plaintiff to its proof thereof.

3. Admits that the cities of Milwaukee, Kenosha, Racine,

and South Milwaukee are cities duly incorporated under

the laws of Wisconsin; denies each and every other alle-

gation of Paragraph 3 of the Complaint.

4. Denies each and every allegation of Paragraph 4 of

the Complaint.

5. Admits that Lake Michigan is a natural body of fresh

water bordered by the states named; alleges it is without

sufficient knowledge or information upon which to form a

reasonable belief as to the truth of each and every other

allegation of Paragraph 5 of the Complaint and therefore

denies each of them and puts plaintiff to its proof thereof.

6. Admits that Exhibit B accurately shows the general

geographic location of each defendant in relation to the

415)

shoreline of Lake Michigan; denies each and every other

allegation of Paragraph 6 of the Complaint.

7. Denies each and every allegation of Paragraphs 7, 8,

9, 10, 11, 12 and 13 of the Complaint.

Count Il

1. Alleges it is without sufficient knowledge or informa-

tion upon which to form a reasonable belief as to the truth

of the allegations of Paragraph 1 and therefore denies same

and puts plaintiff to its proof thereof.

2-8. Realleges and incorporates by reference as if fully

set forth herein its responses to the allegations of Para-

graphs 2-8 of Count I. of the Complaint.

9. Denies each and every allegation of Paragraphs 9 and

10 of the Complaint.

10. Alleges it is without sufficient knowledge or infor-

mation upon which to form a reasonable belief as to the

truth of the allegations of Paragraph 11 of the Complaint

and therefore denies same and puts plaintiff to its proof

thereof.

11. Denies each and every allegation of Paragraph 12

of the Complaint.

Count III

1. Alleges it is without sufficient knowledge or informa-

tion upon which to form a reasonable belief as to the truth

of the allegations of Paragraph 1 of the Complaint and

therefore denies same and puts plaintiff to its proof thereof.

2. Realleges and incorporates by reference as if fully

set forth herein its responses to Paragraphs 2-8 of Count I

of the Complaint.

9. Denies each and every allegation of Paragraphs 9 and

10 of the Complaint.

* Fa A

AFFIRMATIVE DEFENSES

For affirmative defenses to the allegations of the Com-

plaint, this defendant alleges that:

Tuts DeFENDANT Exercises No Revevant LecaLt Powers

Or Dutizrs Anp Has Done No Act Retevant To THe

ComMPLAINT.

This defendant is a Commission consisting of three

members charged by 8.59.96, Wisconsin Statutes with

performing certain duties specified therein on behalf

of the Metropolitan Sewerage District of the County

of Milwaukee, which district is a municipal body

corporate under the laws of Wisconsin of the type

and nature generally classified as a “special purpose

district”.

Defendant’s relevant powers and actions are limited

by the laws of Wisconsin to the financing and the

construction of interceptor sanitary sewers in that

part of the Metropolitan Sewerage District located

outside of the corporate limits of the City of Mil-

waukee.

Upon completion of the construction of such sewers

they are turned over to the Sewerage Commission of

the City of Milwaukee for operation and maintenance

as required by law.

Plans and specifications for sewers to be constructed

by this defendant are by law required to be approved

by the Sewerage Commission of the City of Milwaukee

and the Wisconsin Department of Natural Resources

prior to the letting of contracts for their construction.

Treatment of wastes collected and transmitted in

sewers constructed by this defendant is performed by

the Sewerage Commission of the City of Milwaukee

as required by the applicable laws of the State of

Wisconsin.

6. This defendant does uot own or have otherwise sub-

ject to its direction and control any operating sewers

or sewer systems or otherwise collect or transmit

sanitary, industrial or other waste effluents.

PuarntirF Is Itsetr Guitty Or Conpuct Sucnu As Is

CoMPLAINED OF.

1. Upon information and belief there have existed and

do exist substantial sources of wastes within the State

of Michigan which contaminate the waters of Lake

Michigan in the manner complained of in the Com-

plaint.

2. Upon information and belief from time to time the

winds and other geophysical conditions cause waters

of Lake Michigan to travel in a Northerly direction

conveying said wastes from Illinois waters to Wis-

consin waters interfering with the use of Wisconsin

waters for recreation and public and other water

supply.

3. Upon information and belief plaintiff has failed to

properly prevent the substantial contamination of and

damage to Lake Michigan by waste discharges subject

to plaintiff’s regulation and control which are a direct

and proximate cause of any damage to plaintiff of the

nature complained of.

Ill

THE Conpuct Or MaureasaANnce Or Puarntirr AND OTHERS

Is An INTERVENING ProximaTe Cause Or Any Damace To

PLAINTIFF.

1. Upon information and belief, waste discharges ema-

nating and continuing to emanate from sources within

the State of Indiana which the regulatory officials at

the State of Indiana have neglected or otherwise failed

to properly control or prevent have contaminated and

damaged the waters of Lake Michigan and are a

direct and proximate cause of any damage to plaintiff

of the nature complained of.

2. Upon information and belief waste discharges emanat-

ing and continuing to emanate from sources within

the State of Michigan which the regulatory officials of

the State of Michigan have neglected or otherwise

failed to control or prevent have contaminated and

damaged the waters of Lake Michigan and are a

direct and proximate cause of any damage to plaintiff

of the nature complained of.

3. Upon information and belief waste discharges emanat-

ing and continuing to emanate from sources within

the State of Illinois which the regulatory officials of

the State of Illinois have neglected or otherwise failed

to properly control or prevent have contaminated or

damaged Lake Michigan and are a direct and proxi-

mate cause of any damage to plaintiff of the nature

complained of.

Tuis Derenpant Has Compiiep WitH ALL Known Stanp-

ARDS AND CRITERIA GOVERNING Its Arrarrs Anp Has Irre--

VocABLY FEXxpeENpED Larve Sums In Reviance THEREON;

PuarntirF Is Guitty Or Lacnes Anp Is Estoppep THEREBY.

1. This defendant stands in full compliance with all

known standards, regulations and orders promulgated

by duly empowered regulatory agencies of the United

States and the State of Wisconsin.

2. This defendant has completed a substantial portion

of its planned construction program to provide sewers

to its service area reasonably contemplated to be ade-

lad

quate beyond the year 2000 involving expenditures of

vast sums of money and the district has currently

budgeted $21,450,000 for new construction expendi-

tures in 1973 in reliance upon all currently known

applicable standards and criteria.

3. It is essential to the orderly and efficient conduct of

the duties of this defendant pursuant to the laws of

Wisconsin that the standards and criteria to be met

in the performance of this defendants duties be clear,

unequivocal and known prior to the commencement of

performance of the construction work.

4. The pians and specifications for all construction work

undertaken or planned by this defendant have been

filed with and approved by the Wisconsin Department

of Natural Resources and its predecessor entities and

with the United States Environmental Protection

Agency and its predecessor entities and have at all

relevant times been matters of public knowledge and

record.

5). At no time prior to the commencement of this action

did plaintiff make known to this defendant any com-

plaint or dissatisfaction with this defendant’s conduct

of its statutory affair.

6. It would be unjust, inequitable and substantially

wasteful of public funds to impose at this late time

new and previously unknown standards and criteria

to the work done and being done by this defendant.

Use Or Lake Micuican For Du.utron Anp Dispersion Or

Municripau Wastess Is A Reasonas_e Riparian Use Or Sucu

LAKE.

1. This defendant has available no reasonable and prac-

tical or legal alternative under generally recognized

technology except to construct sewers which connect

to treatment plants which utilize Lake Michigan for

the purpose of ultimately diluting and dispersing

treated waste waters.

2. This defendant has no legal direction or control over

the treatment facilities to which sewers constructed

by it are ultimately connected.

3. The use of the waters of Lake Michigan for dilution

and dispersion of wastes originating in sewers con-

structed by this defendant (which are operated, regu-

lated and maintained by others) is of great and over-

riding necessity and importance to the protection of

the health, safety and general welfare of the public

and is reasonable in relation to such alteration of the

physical, chemical or biological properties of such

waters as may directly and proximately result there-

from, if any, and the uses of such waters by others,

including citizens and political subdivisions of plain-

tiff.

FeveraL Water Potitution Controt Act AMENDMENTS OF

1972 Vest Primary Jurispiction In Unitep States Envi-

RONMENTAL Protection AGENcy AND EstTABLISHzES COMPLETE

Anp ApEQUATE ADMINISTRATIVE Remepigs To PLAINTIFF.

1. The Congress of the United States duly enacted

Public Law 92-500 entitled “Federal Water Pollution

Control Act Amendments of 1972”.

2. Said act became effective on October 18, 1972.

3. Said act sets forth a completely new approach to

federal regulation of water pollution premising such

regulation upon consideration of the quantity and

quality of the effluent discharged by individual sources

or categories of similar individual sources and the

state of technology of specified points in time, rather

than solely upon the desired standard of quality of

the receiving waters as in the past.

Said act vests in the United States Environmental

Protection Agency powers to establish standards and

criteria to be imposed upon individual sources of

waste discharge and categories of similar individual

sources of waste discharge, requires licenses or per-

mits incorporating such standards and criteria as a

condition of lawful discharge of waste and establishes

administrative and judicial procedures for the en-

hancement of such standards.

5. Lake Michigan is a federally navigable water.

10.

11.

All sources of waste discharge into Lake Michigan

are subject to said act.

Said act establishes that national policy is to regulate

waste discharge in a comprehensive, planned manner

coordinating federal and state financial investment

with regulatory programs.

A United States District Court may adjudicate only

those controversies properly brought before it.

The United States Environmental Protection Agency

has available to it powers, funds and scientific and

policy making expertise not available to this court or

to the parties to this litigation.

The legal remedy sought by plaintiff in this action

can be accomplished by the United States Environ-

mental Protection Agency.

It is in the best interests of the parties, of the general

public and of justice that the control of waste dis-

charges into Lake Michigan be accomplished by the

United States Environmental Protection Agency in a

comprehensive manner regulating similarly all these

similarly situated utilizing the expertise and scientific

12.

resources available, rather than for the courts to

determine such matters by adjudicating these cases

brought before them.

Said act would permit plaintiff to seek judicial reme-

dies against any defendant which failed to comply

with the requirements of the Environmental Protec-

tion Agency or against the Envir,amental Protection

Agency in the event it believes it has been aggrieved

by the administrative action or inaction by the En-

vironmental Protection Agency.

ATTORNEY FOR METROPOLITAN SEWERAGE

ComMISSION :

/s/ Kwaup L. Moerkg, JR.

Ewald L. Moerke, Jr.

Schroeder, Gedlen, Riester & Moerke

108 West Wells Street

Milwaukee, Wisconsin 53203

Tele: 272-4060

Answer of City of Milwaukee and ihe Sewerage Commission of

the City of Milwaukee to Illinois’ Complaint

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case No. 72 C 1253

PEOPLE OF THE StTaTE OF ILLINo!Is ex rel. Wr_ui1AMmM J. Scott,

Attorney General of the State of Illinois, Plaintiff,

VS.

City or Mitwavukesg, Wisconsin, et al., Defendants.

ANSWER OF DEFENDANTS CITY OF MILWAUKEE AND

SEWERAGE COMMISSION OF THE CITY OF MILWAUKEE

TO COMPLAINT OF THE STATE OF ILLINOIS

JAMES B. BRENNAN

City Attorney

Harry G. SLATER

Special Assistant City Attorney

Ricuarp F’. MaruszewskI

Assistant City Attorney

Maurice Iu. MarRKEyY

Assistant City Attorney

Attorneys for Defendants City of Milwaukee

and Sewerage Commission of the

City of Milwaukee

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case No. 72 C 1253

ProPLe OF THE StaTE oF Ivitnois ex rel. Wrm1am J. Scort,

Attorney General of the State of Illinois, Plaintiff,

, 2

City or MitwavuKeEg, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or KenosHa, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or Racine, Wisconstn, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or South MitwauKker, Wisconsin, a municipality

incorporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

THe SEWERAGE COMMISSION OF THE City oF MILWAUKEE,

a municipality existing under the laws of the State of

Wisconsin, and a political subdivision thereof, and

THE METROPOLITAN SEWERAGE COMMISSION OF THE CoUNTY OF

MILWAUKEE, a municipality incorporated under the laws of

the State of Wisconsin, and a political subdivision thereof,

Defendants.

ANSWER

Now Come the City or MitwavuKkee and the SEweraGE

Commission of the Cirry or Mitwaukes, by their attorneys,

who for Answer to the Complaint of Illinois, admit, deny and

allege as follows:

Count I

1. Admit paragraph 1.

2. Admit paragraph 2, except defendants deny that the

Attorney General of the State of Illinois is empowered to

bring this suit on behalf of the plaintiff.

3. Admit paragraph 3, except defendants deny that the

Metropolitan Sewerage Commission of the County of Mil-

waukee has the responsibility for the transmission, treat-

ment and disposal of sewage.

4. Admit paragraph 4 and with respect thereto allege that

the State of Wisconsin has been and now is the owner in

trust, for the benefit of its citizens, of the waters of Lake

Michigan within the State of Wisconsin’s territorial boun-

daries ; that it is the protector and guardian of such waters

for the use, needs and enjoyment of its citizens and inhabi-

tants; that the rights of the State of Wisconsin, as hereinbe-

fore alleged, inure to the defendants and the residents of the

City of Milwaukee and residents of the State of Wisconsin

who are served by and benefit from the services and opera-

tions of the defendants ; that the rights of all residents of the

State of Illinois and the State of Wisconsin in and to the

waters of Lake Michigan are subserviant [sic] and sub-

ordinate to the rights and prerogatives of the United States

of America as trustee of Lake Michigan for all the people

of the United States.

o. Admit paragraph 5 and with respect thereto allege,

upon information and belief, that the currents and waters

of Lake Michigan pass and move more frequently, con-

stantly and more substantially in a direction from south

to north along and near the shorelines of Illinois, Indiana

and Wisconsin.

6. Answering paragraph 6, allege that the defendants,

as provided by the statutes and laws of Wisconsin, main-

tain and operate an efficient sewage treatment system; that

said system is constantly being improved, with the aim

of treating all sewage in accordance with the best practical

treatment technology; defendants are taking steps to com-

ply with orders of the Department of Natural Resources

of the State of Wisconsin prescribing action to be com-

pleted by 1977, with the objective of substantially improv-

ing water quality; upon information and belief, that such

orders are based upon and in accordance with standards

and schedules for improvement of water quality for Lake

Michigan approved by the government of the United States

of America; upon information and belief, that municipali-

ties and sanitary districts created by and existing under

the laws of the State of Illinois have been and are now

discharging substances and effluent into Lake Michigan

substantially consisting of raw sewage, or improperly or

inadequately treated sewage; upon information and belief,

that the substances and effluent discharged into the waters

of Lake Michigan and which have their source in the State

of Illinois are contaminants, chemicals or substances which

cause serious and substantial deterioration in the quality

of Lake Michigan waters; further answering, defendants

deny that any of the claimed discharges allegedly attribu-

table to these defendants travels from the city of Milwau-

kee or the waters abutting the City of Milwaukee to Illi-

nois or the waters abutting Illinois; upon information and

belief, that if any pollution exists in Lake Michigan adja-

cent to the City of Milwaukee, such pollution is dissipated

and rendered innocuous and insignificant within a short

distance from Milwaukee; that if any substance or effluent

does reach the waters of Lake Michigan within the terri-

torial boundaries of the state of Illinois, it is insignificant

and innocuous and does not cause serious or substantial

deterioration or damage in the quality of such waters with-

in the territorial waters of Illinois and does not affect the

use, needs or enjoyment of such water by the citizens and

inhabitants of Illinois; if any pollution, damage or deteri-

oration does exist in Illinois waters, it is attributable,

either entirely or in substantial part, to municipalities and

sanitary districts of the state of Illinois discharging matter,

substances and effluent into Lake Michigan or to other

sources not under the control of and not attributable to

these defendants; further answering, defendants allege

that in the event plaintiff proves, upon the trial of this

action, that any substances and effluent travels in the waters

of Lake Michigan and reaches the territorial boundaries of

the state of Illinois, then and in that event defendants

allege that the substances and effluent deposited in Lake

Michigan and attributable to sources within the state of

Illinois travels in the waters of Lake Michigan from the

territorial boundaries of the state of Illinois northward to

and reaches the territorial waters of Wisconsin abutting

the city of Milwaukee; that in the event such travel does

occur, defendants allege that the deposit of such substances

and effluent, having their source in Illinois, causes injury

and damage to the defendants and the inhabitants of the

city of Milwaukee in the same manner and for the same

reasons as alleged in the complaint of the plaintiff.

Further answering, allege that the Milwaukee River has

its origin approximately 95 miles north of its confluence

with Lake Michigan at Milwaukee; that the said Milwau-

kee River has a total drainage area of approximately 855

square miles located in Milwaukee, Waukesha, Ozaukee,

Washington, Fond du Lac, Dodge and Sheboygan Coun-

ties; that the Milwaukee River watershed includes the

drainage areas of the Menomonee River and Kinnickinnic

River which have their origins outside of the city of Mil-

waukee and the district served by the Sewerage Commis-

sion of the City of Milwaukee; that substances and effluent .

affecting the quality of such rivers is placed in such rivers

at points of origin outside of the city of Milwaukce and

outside the area which is served by the Sewerage Commis-

sion of the City of Milwaukee; that such substances and

effluent are not attributable to these defendants; that these

defendants have no control over the same; that the afore-

mentioned rivers, in substantial part, by reason of geo-

graphic conditions and the terrain which has existed since

ancient geological periods, have a natural flow and drain

into Lake Michigan; if any pollution, damage or deteriora-

tion of Lake Michigan is caused thereby, such pollution,

damage or deterioration, if any exists, is not attributable

to or caused by defendants.

Further answering, alleges that Exhibit “B” to the com-

plaint of the plaintiff is incomplete in that it does not

reflect all the municipalities or other entities using the

waters of Lake Michigan or rivers tributary to Lake Michi-

gan for discharge of matter and effluent or for other uses

or purposes which effect the quality of such waters.

7. Deny paragraph 7.

8. Answering paragraph 8, deny that any acts or conduct

of the defendants cause any damage tc the Lake Michigan

territorial waters of the State of Illinois; allege that if any

sewage is discharged by the defendants into the waters of

Lake Michigan, the effects of such sewage are dissipated,

rendered innocuous and become insignificant or minimal

within a short distance from the City of Milwaukee; repeat

and ~eallege paragraph 6 of this Answer with the same

force and effect as though repeated and set forth verbatim

in answer to paragraph 8; allege that defendants have not

done any act or failed to do any act which affects the health,

safety and welfare of the inhabitants of the State of IIli-

nois with respect to use of the waters of Lake Michigan

within the boundaries of Illinois; if there is any damage to

any aquatic organisms or water quality in Illinois terri-

torial waters of Lake Michigan, which defendants deny,

defendants allege the same is attributable to sources with-

in the State of Illinois or other sources over which these

defendants do not have control.

9. Answering paragraph 9, allege that defendants’ duty

with respect to the use of the waters of Lake Michigan is to

ujle such waters in a reasonable manner; that defendants

dre using such waters reasonably.

10, Deny paragraph 10; with respect thereto, allege that

defendants have used approved methods and practices to

treat and dispose of sewage emanating from their locali-

ties and over which sewage the said defendants have con-

trol; allege that they have exercised diligence in conduct-

ing and carrying out their responsibilities in the treatment

of sewage under the statutes, laws and rules applicable.

11. Admit that the sewage system of the defendants can

be unproved; allege that the problem of sewage treatment

of municipalities has been substantially aggravated by con-

centration of industry and population in and near urban

areas, including that of the City of Milwaukee; that the

method and technology of treatment of sewage is under-

going constant improvement and change; that defendants

are improving their sewage treatment systems and mak-

ing substantial expenditures therefore; allege that the mag-

nitude of pollution throughout the United States requires

financial aid of the federal government; that such financial

aid has been assured by the federal government; that laws

have been recently enacted providing for such aid; allege

that defendants are taking steps to comply with water

quality standards applicable to Lake Michigan, and sched-

ules of compliance as prescribed by the State of Wisconsin

and as approved by the Environmental Protection Agency

of the United States under statutes, rules and guidelines

now in effect,

12. Deny paragraph 12.

13. Deny paragraph 13.

14. Further answering, defendants deny each and every

allegation not heretofore admitted, denied, qualified or

otherwise responded to.

AFFIRMATIVE DEFENSES

Further answering and as and for additional defenses to

plaintiff’s complaint, defendants allege each affirmative de-

fense, in the alternative, as follows:

A. Defendants allege that the State of Illinois is re-

sponsible for contributing to and authorizing pollution of

Lake Michigan; that various governmental agencies, in-

dustrial corporations and citizens and residents of Illinois

have been and are being permitted to foul and are fouling

the waters of the lake; that this Court should refuse to

grant plaintiff relief until plaintiff is free from committing

or permitting pollution of such waters; that plaintiff’s

action should be dismissed and plaintiff should not be per-

mitted to maintain its action against the defendants until

plaintiff is able to prove that it is blameless and that it is

not causing or substantially contributing to the pollution

which it attributes to these defendants.

B. Defendants allege that under all the circumstances,

including the size, volume, the “self-cleansing” powers of

Lake Michigan, the long standing existing usage of the

parties herein, the minimal extent of the injury, if any, the

public necessity of the defendants to treat sewage as pres-

ently treated, the capabilities of the defendants in the light

of other urgent demands made upon the defendants and

its taxpayers who are required to bear the cost for the

abatement of the alleged pollution, the absence of control

over other sources and causes of pollution, the unfavorable

geographical terrain of southeastern Wisconsin and the

natural flow of the rivers tributary to Lake Michigan and

the pollution of Lake Michigan by sources outside of the

City of Milwaukee or beyond the territorial waters of Wis-

consin, that the actions and conduct of defendants in treat-

ment of sewage are reasonable; that the abatement, tech-

niques and schedules being pursued in the reduction and

elimination of the claimed pollution are reasonable, pru-

dent, and practical in the light of the magnitude of the

problems, both engineering and financial, and of changing

technology and of all the circumstances,

©, Defendants allege that the claimed pollution of Lake

Michigan, if such pollution exists, is substantially attribu-

table to a rapid and substantial concentration and in-

crease in population and industry in urban areas in and

near the cities on Lake Micnigan and near rivers tributary

to and which drain into Lake Michigan; that such aug-

mented population and industry re juires additienal sew-

age treatment facilities; that defendants are taking rea-

sonable steps to improve and augment its facilities; that

the defendants will sustain unreasonable economic hard-

ship and will be denied due process of law if they are

required to expend large sums of money to construct treat-

ment facilities which may become obsolete in a brief period

of time by reason of changing technology or advancements

in the sciences relating to pollution abatement, while the

quality of the waters of Lake Michigan continue to be de-

graded by others over which defendants have no respon-

sibility or control.

D. Defendants allege that the City of Milwaukee and the

Sewerage Commission of the City of Milwaukee are gov-

ernmental agencies created by the State of Wisconsin; that

the said defendants are required to comply with Chap-

ter 144, Wis. Stats., and comply with orders issued to them

by the Department of Natural Resources of the State of

Wisconsin; that the Department of Natural Resources has

issued orders to said defendants with respect to the abate-

ment of pollution of Lake Michigan; that those portions of

Lake Michigan which are within the boundaries of the

State of Wisconsin are within the jurisdiction of the State

of Wisconsin; that the State of Wisconsin is a trustee of

such waters for its citizens and inhabitants and has the

power to promulgate all laws, rules and orders pertaining

to the quality of the waters of Lake Michigan within its

jurisdiction; that the said defendants are required by the

Statutes of the State of Wisconsin to comply with and

obey all such orders; that orders have been issued as

aforesaid and were and are in full force and effect; that

the State of Wisconsin has power to enact laws for the

abatement of pollution within the State of Wisconsin;

defendarts have no control or authority over such matters,

except as provided by the Statutes of the State of Wiscon-

sin and or as prescribed in orders of the Department of

Natural Resources of the State of Wisconsin; that by rea-

son of the foregoing, plaintiff does not have any cause of

action or claim for relief against defendants while such

State of Wisconsin orders are in effect; that by reason of

such orders the State of Wisconsin is a necessary and in-

dispensable party to this action; that defendants are tak-

ing steps to comply with such orders.

EK. Defendants allege that with respect to abatement of

pollution of Lake Michigan and treatment of sewage, de-

fendants are performing essential governmental functions

imposed upon the said defendants which are required by the

laws and orders of the State of Wisconsin; that by reason

thereof, and the legal restrictions placed upon the defen-

dants by the State of Wisconsin as to their taxing and

borrowing power, the State of Wisconsin is the real party

in interest; that plaintiff’s action although brought in form

against these defendants is, in fact and law, an action

against the State of Wisconsin; that such action presents

a direct issue of law as to the force and effect of the

sovereignty and statutes of the State of Wisconsin and the

orders of the Department of Natural Resources as herein-

before alleged, and is, therefore, not within the judicial

power of this Court by reason of Article XI, U.S. Constitu-

tion.

I’, Defendants allege that plaintiff has failed to join the

State of Wisconsin which is an indispensable party within

the meaning of F.R.C.P. 19; that the power to tax and

borrow of the City of Milwaukee is prescribed by and

limited by the Statutes of the State of Wisconsin and that

the financial capabilities of the City of Milwaukee to per-

form governmental functions is limited by such State im-

posed restrictions; that if the State of Wisconsin is not

joined, these defendants by reason of the foregoing and the

allegations previously set forth in this Answer, will be

denied due process of law to which they are entitled under

Article XIV, U.S. Constitution and Section 9, Article I,

Wisconsin Constitution; that unless the State of Wisconsin

is joined as a party to this action, these defendants may

be required to perform obligations imposed upon them by

the statutes and orders of the State of Wisconsin and

which may be different or inconsistent with any require-

ments which may be imposed on them by the Court in the

event the plaintiff should, upon completion of the trial,

be held to be entitled to the relief prayed for in its com-

plaint; that the State of Wisconsin has a direct interest in

this controversy; that a final decree, if any should be en-

tered herein, directly affects the sovereignty and interests

of the State of Wisconsin and the effectiveness and le-

gality of the orders of the State of Wisconsin heretofore

referred to.

G. Defendants allege that the public acts and statutes

of the State of Wisconsin and the orders and records of

the Department of Natural Resources of the State of Wis-

consin are entitled to full faith and credit under the pro-

visions of Section 1, Article IV, U.S. Constitution; that the

entry of any order or decree by this Court, different or in-

consistent with the public acts and statutes of the State of

Wisconsin or the orders of said Department of Natural

Resources, denies to the State of Wisconsin and these de-

fendants, as governmental agencies of the State of Wis-

consin, the full faith and credit to which they are entitled

within the meaning of the aforesaid constitutional require-

ment.

H. That the defendant City of Milwaukee is a municipal-

ity which is created under the laws of the State of Wiscon-

sin and owes its existence to the sovereignty of the State

of Wisconsin and is bound by the legislative acts of the

state relating to sewage disposal which are of statewide

concern; that in the event it is established that any pollu-

tion does occur in the waters of Lake Michigan which may

be attributable to the City of Milwaukee, which the City

does not believe at this time is applicable, or related to any

of its acts or actions which it can control, the remedy to be

provided is one which the defendants are informed and

believe would be extremely costly and involve the expendi-

ture of many millions of dollars which the defendant City

of Milwaukee is without capacity to secure; that in such

event the assistance and authority of the State of Wiscon-

sin and of the Federal Government with respect to grants

or allotments would be essential and a matter of vital con-

sequence in the fulfillment of any remedy which may be

decreed; that to such extent unless the State of Wisconsin

participates in these proceedings, having the overriding

legislative and sovereign authority, the defendant City of

Milwaukee would be financially powerless to act with re-

spect to extensive and expansive engineering requirements

in order to meet or satisfy remedial directives.

I. Defendants allege upon information and belief, that

prior to the commencement of this action plaintiff did not

make any demand or complaint to the State of Wisconsin

or to the Department of Natural Resources of the State of

Wisconsin with respect to the claimed pollution of which

it complains; that complaint was not made upon these de-

fendants; further alleges that either the Environmental

Protection Agency of the United States or the Department

of Natural Resources of the State of Wisconsin, under

existing law, can provide adequate remedies at law to the

plaintiff if such remedies are required; alleges that upon

information and belief that prior to the commencement of

this action plaintiff did not seek such administrative rem-

edies and has not exhausted such remedies.

J. Defendants allege that under the provisions of Secs.

62.25 and 895.43, Wis. Stats., no action founded ii tort can

be maintained against a political corporation or govern-

mental subdivision or agency thereof unless, within 120

days after happening of the event causing the claimed in-

jury or damage, written notice of the time, place and cir-

cumstances of the injury or damage is served upon such

political corporation, governmental subdivision or agency ;

that such notice was not served upon defendants; further

allege that Sec. 895.43, Wis. Stats., provides that no suit

shall be brought against any political corporation, govern-

mental subdivision or any agency thereof for acts done in

the exercise of legislative, quasi-legislative, judicial or

quasi-judicial functions; that any acts of the defendants

as alleged in plaintiff’s complaint, are within the provisions

of said statute; that the provisions of the aforementioned

statutes and the rights of these defendants thereunder are

entitled to full faith and credit under the provisions of Sec-

tion 1, Article IV, U.S. Constitution.

Count II

1. Answering paragraph 1, deny that the “Environmental

Protection Act” (Public Act 76-2429), approved June 29,

1970, Ill, Rev. Stat. 1971, Ch. 111 1%, § 1001, et seq., em-

powers the relator, William J. Scott, to bring this action

to enforce the provisions of tk: aforementioned Act bas

therein alleged against the defendants herein; further al-

lege that the aforementioned Act does not have any extra-

territorial effect and has no application to the defendants;

that the defendants are governmental agencies of the State

of Wisconsin and are not subject to the jurisdiction of the

State of Illinois or the application of its laws.

2-8. Answering paragraphs 2 through 8 inclusive, re-

allege paragraphs 2 through 8 inclusive, of the answer of

these defendants to Count I, and incorporate said para-

graphs by reference as though fully set forth herein and

repeated verbatim as defendants’ answer to this Count.

9, Answering paragraph 9, deny that any acts or omis-

sions to act on the part of the defendants are “water pollu-

tion” of the waters of the State of Illinois as defined in the

Environmental Protection Act hereinabove referred to, if

applicable ; allege that said Act has no effect or application

to the defendants.

10. Deny paragraph 10.

11. Deny paragraph 11; allege that Section 42 of the

Illinois Environmental Protection Act has no application

to the defendants.

12. Deny any information or belief with respect to para-

graph 12 and therefore deny same.

13. Deny paragraph 13.

14. Re-allege all of the affirmative defenses to Count I

with the same force and effect as though herein repeated

as affirmative defenses to this Count.

15. Further answering defendants deny each and every

allegation not heretofore admitted, denied, qualified or

otherwise responded to.

Count III

1. Answering paragraph 1, deny that the relator, William

J. Scott, has the power under the statutes and the laws of

the State of Illinois to commence or maintain this action;

allege that if such power did exist under the common law

of the State of Illinois, such power was abolished by the

statutes of the State of Illinois which pertain to the abate-

ment of water pollution within said state.

2-8. Answering paragraphs 2 through 8 inclusive, re-

allege paragraphs 2 through 8, inclusive, of the answer of

these defendants to Count II, and incorporate these para-

graphs by reference as though fully set forth herein and

repeated verbatim as defendants’ answer to this Count.

9. Deny paragraph 9.

10. Deny paragraph 10.

11. Re-allege all of the affirmative defenses to Count I

with the same force and effect as though herein repeated

as affirmative defenses to this Count.

12. Further answering defendants deny each and every

allegation not heretofore admitted, denied, qualified or

otherwise responded to.

Wuererorr, defendants pray that the Court grant the

following relief:

a) That the Court dismiss the complaint of the plain-

tiff for the reason that such complaint is insufficient in

law and is wanting in equity;

(b) That the complaint of the plaintiff be dismissed

for the reason that the plaintiff has an adequate rem-

edy at law and has not exhausted administrative rem-

edies which are available to it and which are adequate,

if the Court so determines;

c) That is the event the plaintiff’s complaint is dis-

missed, the Court tax and assess all costs, including

expert witness fees and costs of scientific studies and

research costs against the plaintiff;

d) In the event the complaint of the plaintiff is not

dismissed, the Court make such order as is fair, equi-

table and just under all of the circumstances and facts

existing ;

e) In the event the action is not dismissed and a

decree or order is made and entered relating to the

abatement of pollution of Lake Michigan, such order or

decree be made applicable to all other persons who are

contributing to the pollution of Lake Michigan; that

all such persons be made subject to the authority of

the Court so that any order or decree made and en-

tered be fair and equitable.

JaMEs B. BRENNAN

City Attorney

Harry G. SLATER

Special Assistant City Attorney

Ricuarp F’. Maruszewsk1

Assistant City Attorney

/s/ Maurice L. Markey

Maurice L. Markey

Assistant City Attorney

P.O. Address:

Room 800, City Hall

200 East Wells Street

Milwaukee, Wisconsin 53202

Telephone: (414) 278-2601

Answer of City of Milwaukee and the Sewerage Commission of

the City of Milwaukee to Michigan's Complaint

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case No. 72 C 1253

PEoPLE OF THE SraTeE or ILLINoIs, ex rel. WiuLiam J. Scort,

Attorney General of the State of Illinois, Plaintiff,

PEOPLE oF THE State oF Micuiean, Intervening Plaintiff,

VS.

City or Mitwavukegr, Wisconsin, et al., Defendants.

ANSWER OF DEFENDANTS CITY OF MILWAUKEE AND

SEWERAGE COMMISSION OF THE CITY OF MILWAUKEE

TO COMPLAINT OF THE STATE OF MICHIGAN

JAMES B. BRENNAN

‘ity Attorney

Harry G. SLATER

Special Assistant City Attorney

Ricuarp FEF’. MaruszEwskI

Assistant City Attorney

Maurice L. Markey

Assistant City Attoraey

Attorneys for Defendants City of Milwaukee

and Sewerage Commission of the

City of Milwaukee

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case No. 72 C 1253

PEoPLF OF THE StaTE OF ILLINOIS, ex rel. WitL1Am J. Scort,

Attorney General of the State of Illinois, Plaintiff,

PropLe oF THE State oF Micuican, Intervening Plaintiff,

VS.

City or MinwavKkeEr, WIscoNsIN, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or KenosHa, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

Crry or Racrnr, Wisconsin, a municipality incorporated

under the laws of the State of Wisconsin, and a

political subdivision thereof, and

City or SourH MitwauKker, WIsconsIn, a municipality

incorporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

Tue SeweraGE CoMMISSION OF THE City oF MILWAUKEE,

a municipality existing under the laws of the State of

Wisconsin, and a political subdivision thereof, and

THE MetTrRopotttaN SEWERAGE COMMISSION OF THE COUNTY OF

MILWAUKEE, a municipality incorporated under the laws of

the State of Wisconsin, and a political subdivision thereof,

Defendants.

ANSWER

Now Come the City or MiLwauKeE and the SeweracE

Commission of the City or Mitwavukes, by their attorneys,

who for Answer to the Complaint of the Intervening Plain-

tiff, Stare or Micuican, admit, deny and allege as follows:

1. Admit paragraph 1.

» Admit paragraph 2, except defendants deny that the

Attorney General of the State of Michigan is empowered

to bring this suit on behalf of the intervening plaintiff.

3. Admit paragraph 3, except defendants deny that the

Metropolitan Sewerage Commission of the County of Mil-

waukee has the responsibility for the transmission, treat-

ment and disposal of sewage.

4. Repeat and incorporate by reference paragraph 4 of

the answer to the complaint of Illinois with the same force

and effect as though re-alleged verbatim herein, except that

wherever the State of Illinois or the territorial waters of

the State of Illinois are referred to, the same is intended

and deemed in this answer to be applicable to the State of

Michigan and the territorial waters of the State of Michi-

gan.

5. Admit paragraph 5.

6. Answering paragraph 6, allege that the defendants, as

provided by the statutes and laws of Wisconsin, maintain

and operate an efficient sewage treatment system; that said

system is constantly being improved, with the aim of treat-

ing all sewage in accordance with the best practical treat-

ment technology; defendants are taking steps to comply

with orders of the Department of Natural Resources of the

State of Wisconsin prescribing action to be completed by

i977, with the objective of substantially improving water

quality; upon information and belief, that such orders are

based upon and in accordance with standards and sched-

ules for improvement of water quality for Lake Michigan

approved by the government of the United States of Amer-

ica; upon information and belief, that municipalities and

sanitary districts created by and existing under the laws

of the State of Michigan have been and are now discharg-

ing substances and effluent into Lake Michigan substan-

tially consisting of raw sewage, or improperly or inade-

quately treated sewage; upon information and belief, that

the substances and effluent discharged into the waters of

Lake Michigan and which have their source in the State

of Michigan are contaminants, chemicals or substances

which cause serious and substantial deterioration in the

quality of Lake Michigan waters; if any pollution, damage

or deterioration does exist in Michigan territorial waters,

it is attributable, either entirely or in substantial part, to

municipalities and sanitary districts of the State of Michi-

gan discharging matter, substances and effluent into Lake

Michigan or to other sources not under the control of and

not attributable to these defendants.

Further answering, allege that the Miiwaukee River has

its origin approximately 95 miles north of its confluence

with Lake Michigan at Milwaukee; that the said Milwaukee

River has a total drainage area of approximately 855

square miles located in Milwaukee, Waukesha, Ozaukee,

Washington, Fond du Lac, Dodge and Sheboygan Counties ;

that the Milwaukee River watershed includes the drainage

areas of the Menomonee River and Kinnickinnic River

which have their origins outside of the City of Milwaukee

and the district served by the Sewerage Commission of the

City of Milwaukee; that substances and effluent affecting the

quality of such rivers is placed in such rivers at points of

origin outside of the City of Milwaukee and outside the

area which is served by the Sewerage Commission of the

City of Milwaukee; that such substances and effluent are

not attributable to these defendants; that these defendants

have no control over the same; that the aforementioned

rivers, in substantial part, by reason of geographic condi-

tions and the terrain which has existed since ancient geo-

logical periods, have a natural flow and drain into Lake

Michigan ; if any pollution, damage or deterioration of Lake

Michigan is caused thereby, such pollution, damage or de-

terioration, if any exists, is not attributable to or caused

by defendants.

7. Deny paragraph 7.

8. Repeat and incorporate by reference paragraph 8 of

the Answer to the Complaint of Illinois with the same

force and effect as though re-alleged verbatim herein, ex-

cept that wherever the State of Illinois or the territorial

waters of the State of Illinois are referred to. the same is

intended and deemed in this answer to be applicable to the

State of Michigan and the territorial waters of the State

of Michigan.

’, Answering paragraph 9, allege that defendants’ duty

with respect to the use of the waters of Lake Michigan is

to use such waters in a reasonable manner; that defendants

are using such waters reasonably.

10. Deny paragraph 10; with respect thereto, allege that

defendants have used approved methods and practices to

treat and dispose of sewage emanating from their locali-

ties and over which sewage the said defendants have con-

trol; allege that they exercised diligence in conducting

and carrying out their responsibilities in the treatment of

sewage under the statutes, laws and rules applicable.

11. Repeat and incorporate by reference paragraph 11

of the answer to the complaint of Illinois with the same

force and effect as though re-alleged verbatim herein.

12. Deny paragraph 12.

13. Deny paragraph 13.

14. Further answering, defendants deny each and every

allegation not heretofore admitted, denied, qualified or

otherwise responded to.

AFFIRMATIVE DEFENSES

Further answering and as and for additional defenses

to intervening plaintiff’s complaint, defendants allege each

affirmative defense, in the alternative, as follows:

Repeat and incorporate by reference all of the affirmative

defenses “A” through “J,” inclusive, of the answer to the

complaint of Illinois with the same force and effect as

though re-alleged verbatim herein, except that wherever

the State of Illinois or the territorial waters of the State

of Illinois are referred to, the same is intended and deemed

in this answer to be applicable to the State of Michigan

and the territorial waters of the State of Michigan.

Witererore, defendants pray that the Court grant the

following relief:

a) That the Court dismiss the complaint of the inter-

vening plaintiff for the reason that such complaint is in-

sufficient in law and is wanting in equity;

b) That the complaint of the intervening plaintiff be

dismissed for the reason that the intervening plaintiff has

an adequate remedy at law and has not exhausted admin-

istrative remedies which are available to it and which are

adequate, if the Court so determines;

c) That in the event the intervening plaintiff’s com-

plaint is dismissed, the Court tax and assess all costs, in-

cluding expert witness fees and costs of scientific studies

and research costs against the intervening plaintiff ;

d) In the event the complaint of the intervening plain-

tiff is not dismissed, the Court make such order as is fair,

equitable and just under all of the circumstances and facts

existing ;

e) In the event the action is not dismissed and a decree

or order is made and entered relating to the abatement of

pollution of Lake Michigan, such order or decree be made

applicable to all other States, entities or persons who are

contributing to the pollution of Lake Michigan; that all

such States, entities or persons be made subject to the

authority of the Court so that any order or decree made

and entered be fair and equitable.

James B. BRENNAN

City Attorney

Harry G. SLATER

Special Assistant City Attorney

Ricuarv F’, Maruszewsk1

Assistant City Attorney

/s/ Maurice L. Markey

Maurice L. Markey

Assistant City Attorney

P.O. Address:

Room 800, City Hall

200 Kast Wells Street

Milwaukee, Wisconsin 53202

Telephone: (414) 278-2601

Order of the United States Court of Appeals for the

Seventh Circuit

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

(Argued May 24, 1978)

May 26, 1978.

Before Hon. Thomas E. Fairchild, Chief Judge; Hon. Philip

W. Tone, Circuit Judge; Hon. Roy W. Harper, Senior

District Judge*

No. 77-2246

Preor.e OF THE State or I.urois, Plaintiff-A ppellee,

and

ProPLe OF THE STATE OF MICHIGAN,

Intervening Plaintiff-A ppellee,

Vs.

Ciry or Mitwauker, THe SEWERAGE COMMISSION OF THE

Ciry or Mitwauker, and Titk MetTropoLiraN SEWERAGE

COMMISSION OF THE County OF MILWAUKEE,

Defendants-A ppellants.

Appeal of the United States District Court for the

Northern District of Iilinois, Eastern Division

No. 72-C-1253—John F. Grady, Judge.

ORDER

The panel has determined that an analysis of the appeal,

in somewhat further detail than was presented in the briefs

of the parties, would aid the panel in its consideration. The

panel would like to know the position of the parties with

*Senior District Judge Roy W. Harper of the Eastern and

Western Districts of Missouri is sitting by designation.

| PREVIOUS PAGE WAS BLANK

respect to the elements required to be proved in order to

establish a cause of action for nuisance under federal com-

mon law. The panel also seeks assistance in locating the

particularized findings of the trial court with respect to

such elements and the evidence claimed to support said

findings.

Accordingly, the appellees are directed within thirty (30)

days from the date of this order to serve and file a mem-

orandum setting forth (1) their position as to the elements

required to be proved; (2) the transcript of Judge Grady’s

oral decision, identifying therein the particularized {ind-

ings deemed material to such issues, and supplying by

footnotes to said transcript record citations of evidence

which appellees contend supports such findings; and (3)

record citations to evidence which appellees contend sup-

ports the reasonableness and necessity of the standards

adopted in the final decree.

Appellants may file a responsive memorandum within

twenty-one (21) days after the filing of appellees’ memo-

randum.

Iv Is So OrpeErep.

Supplemental Memorandum of Plaintiff-Appellee State of Illinois

to the United States Court of Appeals for the Seventh Circuit

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 77-2246

PEOPLE OF THE State oF [LuiNots, Plaintiff-A ppellee,

and

ProPLE OF THE STATE OF MICHIGAN,

Intervening Plaintiff-A ppellee,

City or Mitwauker, THe SEWERAGE CoMMISSION OF THE

City or Mitwaukeg, and Tur MerropoLitan SEWERAGE

CoMMISSION OF THE CouNTY oF MILWAUKEE,

Defendants-A ppellants.

Appeal of the United States District Court for the

Northern District of Illinois, Eastern Division

Hon. John F. Grady, Presiding

SUPPLEMENTAL MEMORANDUM OF

PLAINTIFF-APPELLEE STATE OF ILLINOIS

WituiaM J. Scort,

Attorney General of the

State of Illinois,

JosEPH V. KaraGAnis,

Sanrorp R. Gan,

Special Assistant Illinois

Attorneys General,

JEFFREY K. Haynes,

Attorneys for Plaintiff-Appellee

State of Illinois.

Of Counsel:

Karacanis & Gari Lrp.,

Chicago, Illinois 60606,

150 North Wacker Drive,

(312) 782-1905.

TABLE OF CONTENTS

ts OF Dares vc. cee aodeniecunceeeweteers

Debra oo kas cca a cb os 6c 0k Oa 08k eee

Il.

Tue ELeMENTs oF Common Law Pustuic NuIsaNce

A. The Historical Background—Protection Of The

Rights of the Community At Large ..........

BB. Belated Neisanie SOMO 6 oki ck cee dcdbscsueuss

1. Statutory Authorization To Discharge Is

Not A Defense To Nuisance ..............

2. Balancing Public Health Versus Cost To

eg Pee re ree eT

JupGE Grapy’s Finpinus aNnpD REFERENCE Recorp

Evimence To Support Sucu FInpINGS ...........

Bis Fe SEY oss once acc dearoeneeeuseee

Finding By The Court: Defendants’ Discharges

Finding By The Court: Discharge Standards ..

Finding By The Court: Transport ...........

Finding By The Court: Pathogen Survival ....

Finding By The Court: Pathogens In Illinois

WD oon. c.ceas neeean ees Ges eaenee ek eee

Finding By The Court: Dilution . evrerecnres

Finding By The Court: Disease Hazard ......

Fini By Ta Gees: asc k's cea ensacas

Finding BF Tee COG: kos dc cv nine deans

Table of Contents Continued

a ee oe Sy esa bi enonseeenes 82

OE BP I CEES aso 5S noc cc nonye's 82

4g ee Re ae re 88

UE Ye CEES asic cnic bb necnncees 95

Il]. THe ReQurReMENTs oF JupGE Grapy’s DECREE AND

KivipENCE In Support oF THE DECREE ............ 102

SS ee ee tS ea we ew ewe ae 109

TABLE OF AUTHORITIES

Federal Cases

Barnes v. St. Catherine’s Hospital, 563 F.2d 324 (7th

SE as bo ena ks we binds VA Re on Barkan 109

City of Georgetown v. The Alexandria Canal Co., 37

Sf Mie, &h 2i er a eer 10, 27

City of Iarrisonville v. W.S. Dickey Clay Mfg. Co., 289

ee Rs cs pbk CoA baud oun eee cake wae 22

Ethyl Corporation v. Environmental Protection Agen-

oy, pee wae) CIA, Che, TOTS) occ ccna cccvcass 24, 25

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) 29

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ....8, 9, 24

Indiana State Employees’ Ass'n, Inc. v. Negley, 501

Poa 1200 C7 Che. RTE) cece ware cease Veneees 109

Kansas v. Colorado, 206 U.S. 46 (1907) .............. 9

Missouri v. Illinois, 200 U.S. 496 (1906) ...... 28, 29, 30, 31

Missouri v.[llinois, 180 U.S. 208 (1901) ..........0... 26

Mugler v. Kansas, 123 U.S. 623 (1887) .......... 10, 25, 26

New York v. New Jersey, 256 U.S. 296 (1921). .29, 30, 31, 32

Table of Authorities Continued

Ohio v. Wyandotte Chemical Corp., 401 U.S. 493

Sas Gowen a hat bh ics Wa N Ek daa eee 9, 29, 30

Pennsylvania v. Wheeling and Belmont Bridge Co., 54

Ree C8 TIO) GE CRIED «ne ons kis bees wee esd 10

Reserve Mining Co. v. Environmental Protection

Agency, 514 F.2d 492 (8th Cir. 1975) ........... 16, 17

United States v. Ashland Oil & Transportation Co.,

O06 FB 2317 (6th Oliv. 1974) 2... cece cccncess 75

United Steelworkers of America v. United States, 361

oF BRP nore fae rr ree 10

Washington v. General Motors Corp., 406 U.S. 109

lear eee y Eger Pn a ry ea paren Eee ee ee 9

Wasconsin v. Illinois, 289 U.S. 395 (1933) .......... 22, 23

Wisconsin v. Illinois, 281 U.S. 697 (1930) ............ 22

Wisconsin v. Illinois, 281 U.S. 179 (1930) .......... 22, 23

Wisconsin v. Illinois, 278 U.S. 367 (1929) ............ 22

State Cases

Attorney General v. Jamaica Pond Aqueduct, 133

SE MS I ie eo hes Se oe ee Rae KS 13

Barrett v. Mt. Greenwood Cemetery Ass’n., 159 Ill. 385,

ee er eer rer reer ree 24

Board of Comm'rs. of Ohio County v. Elm Grove Min-

ing Co., 9 S.E.2d 813 (W. Va. 1940) ............. 22

City of Ludlow v. Commonwealth, 56 S.W.2d 958 (Ky.

et SE vc ed Vhs a aae ay RCkaAa peas eee es 13

Commonwealth ex rel. Schumaker v. New York and Pa.

Co., 367 Pa. 40, 79 A.2d 439 (1951) ......... 14, 19, 22

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

LS fF Bh. | GRP er ce serra ere 18, 19

Hayes v. Village of Dwight, 49 Il. App. 530 (2d Dist.

1893), aff’d, 150 Ill. 273, 37 N.E. 218 ............ 24

Table of Authorities Continued

Mitchell Realty Co. v. City of West Allis, 184 Wis. 352,

500 .W; SO CRED oni tk esa ensenste eee 14

People v. City of Port Huron, 305 Mich. 153, 9 N.W.2d

SE CRB) Lo. savas ceil cawwdeeense see 20, 21

People ex rel. Scott v. United States Steel Corp., 40

Ill. App. 3d 607, 352 N.E.2d 225 (1st Dist. 1976).. 19

State v. Dairyland Power Cooperative, 52 Wis.2d 45,

187 N.W.2d 878 (1971) .........ceececcecceuces 19

State v. Uhrig, 14 Mo. App. 413 (1883) .............. 27

State ex rel. Shevin v. Tampa Electric Co., 291 8.2d 45

te . ) Brre rrroee eres 19

Treatises and Teats

Cooley's Blackstone Commentaries on the Laws of

Bugiend (od G6: SOOO) 6p sesndeneescasanaasn 11, 26

Cooley’s Blackstone Commentaries on the Laws of

Bageand (40h OO, TID) x oixndcnwccnasassibas vas 10

Glanville, A Treatise on the Laws and Customs of the

King of England (cirea 1189), A Translation of

Glanville by Beame (1900) ............0200 ee eee 11

Hawkins, Pleas of the Crown (8th ed. 1824) ......... 13

Stephens, A Digest of the Criminal Law (7th ed.

WOE 000s cwcdbaweaav cde ceuiee eee 12

- Story’s Equity Jurisprudence (14th ed. 1918) ......27, 28

Webster's New World Dictionary (2d ed. 1976) ...... 14

State Statutes

Ill. Rev. Stat., Ch. 111-1/2, § 1001 et seq. ............ 15

Ill. Rev. Stat., Ch. 111-1/2, §1003(n) ............... 15

Ill. Rev. Stat., Ch. 111-1/2, §1012 .................. 15

INTRODUCTION

This memorandum responds to this Court’s order of

May 26, 1978' and follows the three elements of the Court’s

order. Part I analyzes and defines a common law public

nuisance. Simply put, a public nuisance has been defined

as any interference with the right of the community at

large. Within this general definition is the principle that

actions whicli endanger or threaten the public health are

public nuisances. The case law uniformly speaks in terms

of “endanger” the public health or “menace” to the public

health as a basis for abatement. The judicial decisions

uniformly reject the contention that disease or health in-

jury must actually occur and be proven as a prerequisite

to relief.

Basically, the proof in this case goes to the creation of

a public health hazard by defendants’ discharges of raw

and inadequately treated sewage and subsequent transport

of the sewage pathogens to Illinois waters. Such health

hazards represent a classic common law public nuisance.

Moreover, by being a major nutrient contributor to the

eutrophication of Lake Michigan, defendants are creating

a long-term public nuisance by interfering with the rights

of all those who use Lake Michigan to a clear, clean,

aesthetically pleasing lake free from objectionable tastes

and odors.

Part I also delineates the application of various legal

issues to a case of public nuisance. Among these issues are:

(a) statutory authorization for actions constituting a pub-

This order directed appellees to: (1) set forth the elements

required to be proved to establish a cause of action for nuisance

under federal common law; (2) set forth the transcript of Judge

Grady’s oral decision identifying the particularized findings deemed

material to such issues and to supply transcript record citations of

evidence which appellees contend support such evidence; (3) set

forth record citations to evidence supporting the reasonableness

and necessity of the standards adopted in the final decree.

lic nuisance; (b) balancing public health hazards against

economic burdens on the perpetrator; and (c) the burden

of proof to be applied.

The courts—including those in Wisconsin—have held

that compliance with statutory or regulatory standards is

not a defense to a public nuisance charge. They have also

refused to balance public health hazards against the con-

venience of the perpetrator of the nuisance. Finally, the

courts have required that proof of a nuisance be by a

preponderance of the evidence, rather than some more re-

strictive standard.

In sum, Illinois, Wisconsin and a host of other states

continue to recognize public nuisance as a vital and actively

needed legal mechanism to protect the public health and

welfare.

In Part II of this memorandum, plaintiffs lay out the

contents of Judge Grady’s findings of fact and cite record

references in support of those findings. The evidence sup-

ports the following points:

Public Health Hazard

1. The evidence is unequivocal that defendants discharge

enormous quantities of raw and improperly treated sewage

into Lake Michigan.

2. These masses of human fecal wastes contain billions

of pathogenic (disease-causing) organisms—bacteria and

viruses.

3. These organisms can cause numerous serious diseases

of the heart (e.g. myocarditis), lungs (e.g. pleurodynia),

liver (e.g. hepatitis) and other organs as well as birth

defects in children.

4. Shore parallel currents which move in response to

wind and temperature regimes in Lake Michigan have suf-

ficient speed and persistence to carry materials discharged

at Milwaukee the distance to Illinois in as little as two and

one-half days.

5. The pathogens remain live and infectious for varying

periods of time. Shigella and Salmonella (bacteria) will

survive four to eight days or more, depending on the tem-

perature of the water. Viruses will survive for periods

ranging from two weeks to several months.

6. While the pathogens will be somewhat diluted by a

process known as diffusion, a large mass of polluted water

will dilute slowly from the edges inward. Thus, much of

the dirty water in the center mixes with other dirty water.

The result of this slow dilution is that hazardous concen-

trations of pollutants will still be present in Illinois waters.

7. Even if there was extensive dilution, water treatment

plants would reconcentrate the pathogens on their intake

filters, creating a health risk under normal operations and

a substantial health risk if a breakdown or malfunction

occurs.

&. A health risk also exists for swimmers who are ex-

posed to such pathogens.

Eutrophication

9. Milwaukee’s sewage is also contributing to the eutro-

phiecation of Lake Michigan. Kutrophication is a process

whereby a clear, clean, oligotrophic lake becomes cloudy

and murky from the growth of suspended plant life.

10. As a lake becomes more eutrophic, objectionable

plant life increases and when such plant life dies, it re-

leases objectionable odors. Obnoxious forms of plant life

are also responsible for taste and odor problems in public

water supplies. This process of eutrophication also has a

long-term adverse impact on fish spawning areas.

11. Sewage contributes two key components to this prob-

lem. Sewage contains a whole series of nutrients—‘a rich

nutrient broth”’—for aquatic plant growth. Sewage also

contributes phosphorus, the key nutrient to plant growth

in Lake Michigan.

12. Milwaukee’s treatment plants alone discharge over

one million pounds of phosphorus per year—over 50% of

the sewage load of phosphorus into Lake Michigan, No

one knows how much additional phosphorus is discharged

by Defendants’ raw sewage overflows.

Part III of this memorandum sets forth the record cita-

tions supporting the standards imposed by Judge Grady’s

order. The defendants have already stipulated to the feasi-

bility of these standards, and the basic purpose of Part III

is to provide record support for the need and reasonable-

ness of such standards. Basically the following evidential

points support Judge Grady’s ordered treatment:

1. Raw sewage should not be discharged into Lake Michi-

gan, but should be collected, stored in retention facilities

if necessary, and treated prior to being discharged.

2. Destruction of pathogenic organisms requires effee-

tive chlorination by free chlorine.

3. Solid materials encapsulate and shield pathogens from

disinfection by the chlorine.

4. Organic materials, commonly measured as Biochemi-

cal Oxygen Demand (“BOD”), combine with chlorine to

form weak, ineffective disinfectants called combined chlor-

ine, thus allowing vast numbers of pathogens to pass

through the treatment plant.

5. In order to expose the pathogens to effective chlori-

nation, the solids must be removed to very low levels prior

to chlorination; and in order to maintain a free chlorine—

as opposed to a combined chlorine—BOD (organic mate-

rial) also must be removed to as low a level as possible

prior to chlorination. These levels should not exceed 5 milli-

grams per liter solids or 5 milligrams per liter BOD.

Moreover, a measurement of chlorine effectiveness, known

as a free chlorine residual, must be maintained at all times.

6. The 5 milligrams per liter solids and 5 milligrams per

liter BOD can be achieved by adding coagulation/sedimen-

tation tanks and filters onto the existing secondary plants.

7. Milwaukee now discharges up to a million pounds of

phosphorus annually, which represents 50% of the sewage

discharge of phosphorus to Lake Michigan. Milwaukee

plants will continue to discharge a phosphorus load of a

million pounds even if a concentration of 1 milligram per

liter for phosphorus is achieved.

8. An incidental but major benefit of the 5 milligrams

per liter solids/5 milligrams per liter BOD standard is a

reduction in phosphorus concentrations well below 1 milli-

gram per liter.

THE ELEMENTS OF COMMON LAW PUBLIC NUISANCE

PM |

The Historical Background—Protection Of The Rights

Of The Community At Large

In Illinois v. City of Milwaukee, 406 U.S. 91 (1972), the

Supreme Court held that “federal courts will be empowered

to appraise the equities of the suits alleging creation of a

public nuisance by water pollution.” 406 U.S. at 107. While

the Supreme Court clearly established the subject matter

jurisdiction of the federal district courts to hear such cases

under the federal question jurisdiction of 28 U.S.C. § 1331,

the Court did not delineate the substantive elements neces-

sary to establish liability under the common law of public

nuisance.

The Court gave limited guidance:

“While federal law governs, consideration of state

standards may be relevant [citation omitted]. Thus a

State with high water-quality standards may well ask

that its strict standards be honored and that it not

be compelled to lower itself to the more degrading

standards of a neighbor. There are no fixed rules that

govern; these will be equity suits in which the in-

formed judgment of the chancellor will govern.”

406 U.S. 107-108.

While federal substantive law would apply, the courts

should consider local conditions in determining the reme-

dies necessary. Some locations would require more strin-

gent remedies than others.

“Moreover, geophysical characteristics which define

local and regional airsheds are often significant con-

siderations in determining the steps necessary to abate

air pollution [citation omitted]. Thus, measures which

might be adequate to deal with pollution in a city such

as San Francisco, might be grossly inadequate in a

city such as Phoenix, where geographical and meteor-

ological conditions trap aerosols and particulates.

“As a matter of law as well'‘as practical necessity

corrective remedies for air pollution, therefore, neces-

sarily must be considered in the context of localized

situations.”

Washmgton v. General Motors Corp.,

406 U.S. 109, 115-16 (1972)?

Fortunately, the Supreme Court in other cases—usually

in dicta—has indicated that it follows the common law of

publie nuisance established in England and the American

———

? Washington v. General Motors Corp. was decided by the Su-

preme Court on the same day as Illinois v. Milwaukee, and held

that the states could bring federal common law nuisance suits to

abate pollution of ambient air. 406 U.S. at 112 n.2.

100

states.’ See generally, Ohio v. Wyandotte Chemical Corp.,

401 U.S. 493, 510 (1971) (dissenting opinion of Justice

Douglas) ;* United Steelworkers of America v. United

States, 361 U.S. 39, 60-61 (1959) (concurring opinion of

Justices Frankfurter and Harlan); Mugler v. Kansas, 123

U.S. 623, 672-73 (1887); City of Georgetown v. The Alea-

andria Canal Company, 37 U.S. (12 Pet.) 91, 97-98 (1838) ;

Pennsylvania v. Wheeling and Belmont Bridge Co., 54 U.S.

(13 How.) 519, 563-568 (1851).°

Turning to the common law of England, public nuisances

ean be traced to the 12th Century. At that time, interfer-

ences or obstructions to the King’s highways were abatable

* Unlike the varying state laws regarding water usage which have

confronted the Supreme Court in water rights appropriation cases

(e.g., Kansas v. Colorado, 206 U.S. 46 (1907)), the laws of the

various states regarding the substantive elements of common law

nuisance are relatively uniform.

*“‘Tn light of the history of water pollution control efforts in

this country it cannot be denied that a vast residual authority

rests in the States. And there is no better established remedy in

state Jaw than authority to abate a nuisance.’ ’’

°2 W. Blackstone ; Commentaries *218 (Cooley 4th ed. 1899) :

‘*{T]t is a nuisance to stop or divert water that used to run

to another’s meadow or mill; to corrupt or poison a water-

course, by erecting a dyehouse or a lime-pit for the use of

trade, in the upper part of the stream; or in short to do any

act therein that in its consequences must necessarily tend to

the prejudice of one’s neighbour. So closely does the law of

England enforce that excellent rule of gospel morality, of

‘doing to others as we would they should do unto ourselves.’ ”’

(401 U.S. 493, at 510 n.5)

5The distinctions made in these decisions between nuisances

tried at law and nuisances tried in equity were once very signifi-

cant and account for much of the historical confusion over differ-

ential standards of proof, discussed infra.

101

as publie nuisances by criminal indictment and trial by

jury.®

By the time of Blackstone’s lectures some six centuries

later, the law remained that public nuisances were a crime.’

The remedy for such public nuisance was by indictment

and trial by jury; and if convicted, the defendant was re-

quired to abate the nuisance. IV Blackstone *166. Black-

stone defined the crime of public nuisance as follows:

“Common nuisances are a species of offenses against

the public order and economical regimen of the state;

being either the doing of a thing to the annoyance of

all the king’s subjects, or the neglecting to do a thing

which the common good requires.” ®

® Glanville, A Treatise on the Laws and Customs of the King of

England (circa 1189 A.D.), A Translation of Glanville by Beame

(1900) ), p. 194:

‘*And, generally speaking, whenever a Nuisance is committed

affecting the King’s Lands, or the Kings High Way, or a City,

the suit concerning it belongs to the Kings’ Crown. But Pur-

prestures of this description are enquired after, either in the

King’s Chief Court, or before his Justices sent into the dif-

ferent parts of the Kingdom for the purpose of making such

Inquisitions, by a Jury of the Place, or Vicinage. And if, by

such Jury, a man be convicted of having made any Purpres-

ture of this kind, he shall be amerced to the King to the extent

of the whole Fee that he holds of him, and shall restore that

which he has encroached upon;.. .’’

7™** And nuisances are of two kinds: public or common nuisances,

which affect the public and are an annoyance to all the King’s

subjects; for which reason we must refer them to the class of

public wrongs, or crimes and misdemeanors. ...’’ III Cooley’s

Blackstone Commentaries on the Laws of England *215 (3d

ed. 1884) (hereinafter ‘‘ Blackstone’’).

SIV Blackstone *166. Among such common or public nuisances

were ‘‘annoyances in highways, bridges and public rivers by ren-

dering the same inconvenient or dangerous to pass, either positively,

by actual obstructions or negatively by want or reparations.’’ /d.

102

Stephens defines public or common nuisance as follows:

“A common nuisance is an act not warranted by law

or an omission to discharge a legal duty, which act or

omission obstructs or causes inconvenience or damage

to the public in the exercise of rights common to all

His Majesty’s subjects.” °

He goes on to classify as a public nuisance acts which

endanger tle health of the public:

“Every person commits a common nuisance who does

anything which endangers the health, life, or property

of the public or any part of it.” *°

Hawkins, in Pleas of the Crown, (8th ed. 1824)" also

describes a hazard to public health as a common nuisance :

“Also it hath been holden to be a common nuisance to

divide a house in a town for poor people to inhabit in,

by reason whereof it will be more dangerous in time

of infection of the plague.”

Id., at 694

The principle that a hazard to the public health consti-

tutes a public nuisance is well established in the common

law of the states in America.

In Attorney General v. Jamaica Pond Aquaduct, 133

Mass. 361 (1882), the state obtained an injunction to pre-

vent the drawing down of the Jamaica Pond, which would

expose large areas of slime, mud and offensive vegetation.

® Stephens, A Digest of the Criminal Law (7th ed. 1926), p. 178.

1° Td., at 186. Stephens gives the following illustration of a health

hazard constituting a public nuisance :

‘*A carries a child infected with the small-pox along a public

highway in which persons are passing, and near to inhabited

houses. A commits a common nuisance.’’ Jd., at 187.

11 First published in 1721.

103

A nuisance was found because draining the pond would

expose its shores “thus endangering the public health.” 133

Mass. at 363.

In City of Ludlow v. Commonwealth, 56 S.W.2d 958 (Ky.

Ct. App. 1933), the court stated:

“CN]o rule of law is better settled than that whatever

endangers public health is a public nuisance.” 56 8.W.

2d at 959 (emphasis added).

The Pennsylvania Supreme Court held that the common

law public nuisance included health hazards in Common-

wealth ex rel. Schumaker v. New York and Pa. Co., 367

Pa. 40, 79 A.2d 489 (1951), stating:

“Corruption of water, when it affects the public use

of a stream or menaces the public health, becomes a

public nuisance which the commonwealth may suppress

by criminal proceedings upon indictment for main-

taining a public nuisance and upon conviction the court

may in its sentence include an order requiring abate-

ment of the nuisance. See Barclay v. Commonwealth,

1855, 25 Pa. 503. Also the Commonwealth may proceed

in equity for an injunction requiring abatement of the

nuisance.”

79 A.2d at 444 (emphasis added)”

In Mitchell Realty Co. v. City of West Allis, 184 Wis.

352, 199 N.W. 390 (1924), a private landowner sued West

Allis, a city contiguous to Milwaukee, for damages and to

abate a nuisance caused by defendant’s sewage inundating

her land. The City of Milwaukee was allowed to join in

the action as a plaintiff to demand abatement of the sewage

discharges, because the stream into which the defendant dis-

charged its sewage flowed past a Milwaukee city park. The

12 Webster’s New World Dictionary (2d ed. 1976) defines the

word ‘‘menace’’ as ‘‘threatening,’’ and the word ‘‘endanger’’ as

**to expose to harm.”’

104

Wisconsin Supreme Court noted that the sewage could

affect the healt

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