# Appendix — Milwaukee v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 451 U.S. 304 ## Text | No. 79-408 "1 MICHAEL RODAK, JR., CLERK supreme LOU. UV. o- FILED OCT 10 1960 A 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. bo 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 ii 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 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. 2 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. 3 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) 5 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. 6 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- 7 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 8 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. 9 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 10 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, J. 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- 11 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, J. 12 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 13 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, J. 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 14 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. 15 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. 16 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. 17 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. 18 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, J. 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, J. 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. 19 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, J. 20 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. 21 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. 22 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, J. 23 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, Ve 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 24 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. 29 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 é ‘ 26 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 27 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- 28 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 29 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 (c) That the Court*tax and assess all costs, includ- 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- 30 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 31 (c) That the Court tax and assess all costs, includ- 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 32 (c) That the Court tax and assess all costs, includ- 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 33 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- 34 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- 35 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- 36 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 37 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. 38 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 (c) That the Court tax and assess all costs, including 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 39 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 40 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 41 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. 42 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. 43 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. 44 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’. 3. 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 45 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. II 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 t 46 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. to 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. IV 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. 47 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. V 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. — 48 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. VI 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. 49 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. 30 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. ol 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 a3 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 o4 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 56 AFFIRMATIVE DEFENSES For affirmative defenses to the allegations of the Com- plaint, this defendant alleges that: I Tuts DeFENDANT Exercises No Revevant LecaLt Powers Or Dutizrs Anp Has Done No Act Retevant To THe ComMPLAINT. i. 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 o7 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. II 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 o8 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. IV 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 99 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. V 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 60 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. VI 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 61 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. 62 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 63 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 64 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: 65 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 66 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 67 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- 68 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 69 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. 70 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 71 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 / j 72 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 73 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. 74 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 75 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 =? 76 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 7 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A03. Public record. Not legal advice.