Petitioners Brief — Milwaukee v. Illinois

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IN THE

Supreme Court of the United States

Ocrober TERM, 1979

No. 79-408

City or MILWAUKEE, THE SEWERAGE COMMISSION OF

THE Crry oF MILWAUKEE, AND THE METROPOLITAN

. SEWERAGE COMMISSION OF THE COUNTY OF MILWAUKEE,

Petitioners,

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHIGAN,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF FOR PETITIONERS

Of Counsel:

QuARLEs & BRADY

780 North Water Street

Milwaukee, Wisconsin 53202

and

MicHaeL J. McCaBe

735 North Water Street

Milwaukee, Wisconsin 53202

June 2, 1980

Press OF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

Ricuarp W. CuTLeR

ELWIN J. ZARWELL

(Attorney of Record)

SAMUEL J. REcHT

JAMES H. Baxter III

ANDREW M. PARNES

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 277-5000

Attorneys for Petitioners

the Sewerage Commission of

the City of Milwaukee and

the Metropolitan Sewerage

Commission of the County

of Milwaukee

JAMES B. BRENNAN

Room 800, City Hall

Milwaukee, Wisconsin 53202

(414) 278-2601

Attorney for Petitioner

City of Milwaukec

omieoe t Rages

Page

NN Se i awh e ia baw ewen suena wn 1

Neen as eens mame 3

STatuToRY PrRovISIONS INVOLVED ..........0e0eeeeees 3

CO FT oc aces kc cnediecsndcswdenens cos 4

STATEMENT OF THE CAG occ ccc decd cede recasuces 6

A. Description of the Metropolitan Milwaukee

Sewerage System and Its Discharge Per-

ee EE ibis sou dewsack chk chek euee 9

B. Procedural History ......cscsscccsvsees 14

C. Decision of the District Court and the

eg ere rr re rier 16

D. Non-cost-effective Elimination of Over-

flows was Ordered by the Courts Below .. 19

BUMEMARY GP AMOUMEBNT 6... oc ccc ccvecccccssccsccuces 21

BEAL LE Ee RE rT Ee R ar ee ae 28

I. In PL 92-500, As Amended by PL 95-217,

Congress Has Made The Legislative Choice to

Control Water Pollution by Means of a Com-

prehensive, Cost-Effective Federal Scheme

Which is Dependent Upon Uniform Standards

and Procedures Administered by an Expert

Administrative Agency. In Ignoring the Uni-

form Statutory Standards, Procedures, and

the Costs of the Remedy Imposed, the Courts

Below Have Elevated Federal Common Law

Above Federal Statutory Law Controlling

Interstate Wastewater Discharge .......... 28

A. The Necessity for Federal Common Law

Independent of an Ineffective Federal Sta-

tute No Longer Exists ................. 28

Index Continued

Page

B. FWPCA is Comprehensive, Effective and

Complete. It Replaces the Former Federal

Statutes Found to be Ineffective ........

C. The Federal Statute Controls the Former

Federal Common Law ................-.

D. The Control of FWPCA has Been Recog-

nized by Other Courts and Legal Scholars

E. Congress Provided that Compliance with

Permits Issued Under the Congressionally

Established Administrative Procedures is

Compliance with Federal Law ..........

F. The Decisions Below are an Attempt to

Raise Federal Common Law Above the

Paramount Federal Statutes ............

G. The Courts Below Ignored the National

Character and Massive Fiscal Impact of

the Problem Considered ...............

H. Congress Recognized and Dealt with Fiscal

IE vb ance e 050 pk dKa eo eee Ceorws

I. Congress and this Court Require a Bal-

ancing of Equities, But the Courts Below

Failed and Refused to Do So ...........

II. The Decisions Below Ignored Previous Deci-

sions of This Court Which are Controlling

Precedent and Which Establish That, in the

Absence of Empirical Evidence of Any Nui-

sance, the Conflicting Testimony of Expert

Witnesses is Not Sufficient to Accord Relief in

an Action Aleging an Interstate Nuisance ..

A. The Record is Devoid of Any Empirical

Evidence of Nuisance in Illinois or Michi-

gan Waters. The Courts Below Could

Rely Only on the Speculations of Experts

ise Were Contradicted by Historical

OUR cis cu ree n chovhcessenbeda nagee bees a

B. Neither Illinois Nor Michigan Require the

Level of Control of Overflows Ordered by

the Courts Below ................00000-

Index Continued ili

Page

III. This Action Should Have Been Dismissed on

the Ground: (1) That the Court Had No

Jurisdiction Over the Person of the Defen-

dants, or (2) That the Venue in the Action

Was Improperly Laid in the District Court

for the Northern District of Illinois, or Upon

i Pr 6 ceed camedeeheoness 86

I ea tl CEO Le cuhe lu sine sess ainweesons 90

CITATIONS

CasEs:

American Meat Institute v. EPA, 526 F.2d 442 (7th

DYES ae a 40

Arizona v. California, 373 U.S. 546 (1963) ......... 46, 47

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

ee Dt ed eetna wee se 31

California Tahoe Regional Planning Agency v. Jen-

nings, 594 F.2d 181 (9th Cir. 1979), cert. denied,

— US. (No. 79-15, Oct. 1, 1979) ........ 57

Cappaert v. U.S., 426 U.S. 128 (1976) .............. 68

Clearfield Trust Co. v. U.S., 318 U.S. 363 (1943) . .30, 31, 32

Cole v. Trustees of Columbia University, 300 F.Supp.

that be ee Ne Cce edb kehmedkasaaewee 0°

Committee for the Consideration of the Jones Falls

Sewage System v. Train, 539 F.2d 1006 (4th Cir.

ES hr naed nk sah bnchwan oetenatkaebeeseu 51, 52, 57

E.I, duPont de Nemours € Co. v. Train, 430 U.S. 112

|” angie saat ea sof ae ae 40, 44

Eccles v. Peoples Bank, 333 U.S. 426 (1948) ........ 65, 66

Environmental Protection Agency v. California, 426

ee dc aneew cate 30

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ....30, 31, 32

Far East Conference v. U.S., 342 U.S. 570 (1952) .... 42

iv Citations Continued

Page

Hanson v. Denckla, 357 U.S. 235 (1958) ............ 87

Harrison v. Indiana Auto Shredders Co., 528 F.2d

REE CTU SAE, FO 5a 5 8a Be eke cee bens 67, 68

Hinderlider v. La Plata River & Cherry Creek Ditch

oe Ge Ee S| er err rere rr ris 31, 32

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

Illinois v. Milwaukee, 599 F.2d 151 (1979) ........ passim

Illinois v. Milwaukee, N.D. Til. No. 72-C-1253 (“Find-

ings of Fact and Conclusions of Law,” July 29,

1977) rev’d in part and aff’d in part 599 F.2d

Re Bo a ee ee ys passim

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

| Samana ay Rage er pone (Laas a aes BURR meen 1 2,14, 57

Illinois v. Milwaukee, 4 E.R.C. 1849 (N.D. Ill. 1972).. 2,

14, 87

International Shoe Co. v. Washington, 326 U.S. 310

ON ic aka hin 3b AA BREA s 3 OK SPRRUE SSH Sha Oe 87

Ladew v. Tennessee Copper Co., 218 U.S. 357 (1910) . .88, 89

Leroy v. Great Western United Corp., 443 U.S. 173

| GaP RG ROG ttn eerie a pameR ao weary ine ww ner 89

Markham vy. City of Newport News, Va., 184 F.Supp.

Wy AUR. Wa, TOON is ok tse ok os divin secs

McKart v. United States, 395 U.S. 185 (1969) ....... 35

Mississippi and M.R. Co. v. Ward, 2 Black 485 (1863).. 89

Missouri v. Illinois, 180 U.S. 208 (1901) ............ 71

Missourt v. Illinois, 200 U.S. 496 (1906) . .32, 72, 73, 75, 80

Natural Resources Defense Council v. Train, 510 F.2d

See Cee As ES kw eee kha pen Oh eoueen t 38

Natural Resources Defense Council v. Costle, 568 F.2d

Pee Cane Cas SPEED 50s binah o coos ROMs Cebke 39

Nattonal Sea Clammers Assoc. v. City of New York,

—— F.2d , slip opinion (3d Cir. Feb. 5, 1980) 58

Citations Continued Vv

Page

New England Legal Foundation v. Costle, 475 F.Supp.

425 (D.C. Conn. 1975) aff’d in part, held in abey-

ance in part, —— F.2d —— (2d Cir. May 20,

PE OV Ga Vi LAKSAD aN ORS COD NEED SERN OOS 52, 53, 54, 57

New York v. New Jersey, 256 U.S. 296 (1921) ....71, 75, 76

North Dakota v. Minnesota, 263 U.S. 365 (1923) ..71, 78, 79

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

SEN hind S8 a nee PORT Re CEL ES IA RAD aes eek 28

Parks Co. v. City of Decatur, Ill., 1388 F.550 (6th Cir.

SE. PURO baa eae das sob oes tka ae eaKeeea wee 89

Reisman v. Caplin, 375 U.S. 440 (1964) ............ 54

Reserve Mining Co. v. Environmental Protection

Agency, 514 F.2d 492 (8th Cir. 1975) .......... 57

Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 .. 43

The Sewerage Commission of the City of Milwaukee

v. Wisconsin Dept. of Natural Resources, Dane

Cty. Cir. Ct. of Wis. No. 152-1342 (May 25, 1977) 12

Stream Pollution Control Bd. v. United States Steel

Corp., 512 F.2d 1036 (7th Cir. 1975) ........... 57

Texas v. Pankey, 441 F.2d 236 (5th Cir. 1971) ...... 32

Textile Workers Unton of America v. Lincoln Mills,

ee Sh ED ho 6.65. Gores <p wien bendne Oe 30, 32

Township of Long Beach v. City of New York, 445 F.

RR Ae CE STaEy BPD enc be ecvuasacecvesese’ 57

United States v. Ira S. Bushey & Sons, Inc., 363 F.

Supp. 110 (D.Vt. 1973) aff’d mem. 487 F.2d 1393

(2d Cir. 1973), cert. denied, 417 U.S. 976 (1973).. 57

United States v. Michigan, E.D. Mich. No. 77-1000

AK. SUNOS Nah heces shake een ba evs oxen bax 85

United States v. Stoeco Homes, Inc., 498 F.2d 597

(3d Cir. 1974), cert. denied, 420 U.S. 927 (1975) .. 58

United States v. United States Steel Corp., 356 F.

SN, SU Cr Ae Ee SEE 35 5 0 08 eden ebnaenses 57

United States v. Western R.R. Co., 352 U.S. 59 (1956) 43

Wheeldin v. Wheeler, 373 U.S. 647 (1963) ........... 31

vi Citations Continued

Page

STATUTES:

Federal Water Pollution Control Act, as amended

Section 101 (33 U.S.C. $1251) .....cccccvecne 64

Section 201 (33 U.S.C. $1281) .....cccessecves 83

Section 217 (33 U.S.C. $1297) ...ccccesccccces 8, 37

Section 301 (33 U.S.C. § 1311) ....8, 30, 34, 35, 55, 63

Section 302 (33 U.S.C. $1812) ......... 34, 35, 55, 77

Section 303 (33 U.S.C. $1313) ......ccccceceee 34

Section 306 (33 U.S.C. $1316) .......c.ess00. 35, 55

Section 307 (33 U.S.C. $1317) ............00. 35, 55

Section 309 (33 U.S.C. $1319) ............000. 46

Section 401 (33 U.S.C. $1341) ...........2.6.- 49

Section 402 (33 U.S.C. § 1342) ..11, 12, 34, 35, 2 rr

Section 403 (33 U.S.C. § 1343) ...............- 595

Section 505 (33 U.S.C. $1365) ......... 41, 46, 55, 88

Section 509 (33 U.S.C. $1369) ...... 35, 44, 46, 49, 77

Federal Water Pollution Control Act, prior to PL

92-500 (the Federal Water Pollution Control Act

Amendments of 1972) Section 10 (33 U.S.C.

Nerd asec fu whalers 29

Judicial Code, as amended

es: EE ch iv sno Sonne Olen Aemeemwke ke 3

Be Se EEE kbc ba nsewbake Meeemeoncas 4, 88, 89

Wisconsin Statutes (1977)

RPE ghana ry CARAS RI Doe ryt 9

EE cass bv cou bana beesaeionkans 9

EN I is dwn rk ae He baw eee eee 77

Illinois Revised Statutes (1971)

SE En bh ata wales «Rbkn se amhee mae 3, 14, 86

MISCELLANEOUS:

a Le ME hvac k cots bcipaoawerbecemeuanal 2, 14

S. Ct. R. 22(3)

WO Ae Bo. cc ee 34

Citations Continued vii

Page

Ill. Pollution Control Bd. R. and Regs. ch. 3 (1976)

TS EAGL Mae e hee s ba cs hs.u8 50a 9 ons bd NSS 81, 82

ee es iin wh ete hen tb en we ba canes 82

EE a, Sa WGN we as 6.0 gah «0 SHA Owe eth 88 he 82

EG Riayat OE tS ea 82

RS ir eee er 81

Tne sek Gln Cae ae whe ek 4 dae bakes 80, 81, 83, 84

Ill. Pollution Control Bd. R. and Regs. ch. 3 (1977)

ig a yy a a wis bale als

Annot., 40 A.L.R. 3rd GO1 (1971) 2... . cc cece ccececes 66

BR, OO EAS, GOO TIGGER) osc ccc cncscccccceces 89

Dobbs, Remedies (West Pub. 1973) ......... rae 67

Grad, Treatise on Environmental Law (Matthew

ee le ae hme ke ath es 50

Friendly, In Praise of Erie—And of the New Federal

Common Law, 39 N.Y.U.L. Rev. 383 (1964) ...... 30

Legislative History of the Water Pollution Control Act

Amendments of 1972 (Environmental Policy Di-

vision of the Congressional Research Service of

the Library of Congress, Committee Print 1973) ‘te “

’

Monaghan, The Supreme Court, 1974 Term, Fore-

ward: Constitutional Common Law, 89 Harv. L.

ee soy ok a ale hb d+ 66 ete bole 00s 31

Note, Federal Common Law and Interstate Pollution,

85 Harv. L. Rev. 1439 (1972) ............. 200. 31, 32

Stewart, Pyramids of Sacrifice? Problems of Federal-

ism in Mandating State Implementation of Na-

tional Environmental Policy, 86 Yale L.J. 1196

SNR LAK ANTR Sno es 0k sa ¥ ud v on ved a's 6 48

Zener, The Federal Law of Water Pollution Control,

in Federal Environmental Law (E. Dolgin and

Tee NE, WE MPD bib ci bcivceccccéstonnccd 45, 48

viii Citations Continued

Page

EPA, 1978 Needs Survey: Cost Methodology for Con-

trol of Combined Sewer Overflows and Stormwater

Discharge, EPA Rpt. No. 48019-79-003 (Feb. 10,

PE hi axn tee eine teks ee lewd caleba enue wih 59

EPA, Report to Congress on Control of Combined

Sewer Overflow in the United States, MCD Rpt.

PEP TOs By RET Kb oss vee be Ue bea gear een 57, 59

EPA, Nationwide Evaluation of Combined Sewer

Overflows and Urban Storm Water Discharges,

EPA-600/2-77-064a (Sept., 1977) .......-....... 59

GAO, Report by the Comptroller General of the United

States: Combined Sewer Flooding and Pollution—

A National Problem. The Search for Solutions in

Chicago, CED-79-77 (May 15, 1979) ........ 59, 60, 85

GAO, Report by the Comptroller General of the United

States: Large Construction Projects to Correct

Combined Sewer Overflows Are Too Costly, CED-

80-40 (December 28, 1979) ........... cece eeeee 58

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

No. 79-408

City oF MILWAUKEE, THE SEWERAGE COMMISSION OF

THE Crry OF MILWAUKEE, AND THE METROPOLITAN

SEWERAGE COMMISSION OF THE CoUNTY OF MILWAUKEE,

Petwtioners,

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHIGAN,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the Court of Appeals dated April 26,

1979 is reported at 599 F.2d 151, and is reproduced in

the Appendices to the Petition for a Writ of Certiorari

dated September 11, 1979 (bound separately, and re-

ferred to herein as ‘‘Pet App.’’) at A-1 et seq. The

opinion of the Court of Appeals was accompanied by

an unpublished order dated April 26, 1979 which was

not officially reported, but which is unofficially re-

ported at 13 E.R.C. 1069 and reproduced at Pet.

App. B-1 et seq. An order denying a petition by the

State of Illinois for a rehearing was entered by the

Court of Appeals on June 14, 1979 and is reproduced

at Pet. App. C-1 et seq. The judgment order entered

by the United States District Court for the Northern

District of Illinois on November 15, 1977 is reproduced

at Pet. App. D-1 et seq. A stipulation between the par-

ties dated November 14, 1977 concerning the District

Court’s November 15, 1977 judgment order is repro-

duced at Pet. Opp. E-1 et seq. The modified judgment

order entered by the United States District Court for

the Northern District of [llinois on January 31, 1980

is reproduced in the Joint Appendix (bound sepa-

rately, and referred to herein as ‘‘ App.’’) at 357 et seq.

. (This modified judgment was entered after the

issuance of the mandate of the Court of Appeals. The

question whether this modified judgment is in accord

with the mandate is presently before the Court of Ap-

peals, but proceedings have been stayed pending the

Supreme Court’s decision in this case.) The opinion of

the District Court at the conclusion of the trial on

July 29, 1977 was not reported and is reproduced at

Pet. App. F-1 et seq. The opinion of the District Court

dated November 1, 1973 denying petitioners’ motion

to dismiss the complaint pursuant to Rule 12(b) of

the Federal Rules of Civil Procedure is reported at

366 F.Supp. 298 and is reproduced at Pet. App G-1

et seq. The opinion of the District Court dated Novem-

ber 16, 1972 denying petitioners’ motion to dismiss for

lack of personal jurisdiction and improper venue was

not officially reported but is unofficially reported at 4

E.R.C. 1849, and is reproduced at Pet. App. H-1 et seq.

Mr. Justice Stevens’ May 8, 1980 order staying all judg-

ments, decrees and orders entered by the Court of Ap-

peals and the District Court pending the Supreme

Court’s decision in this case is reproduced at App. 369.

This proceeding had its genesis in this Court’s de-

cision in Illinois v. Milwaukee, 406 U.S. 91 (1972), re-

produced at Pet. App. I-1 et seq.

JURISDICTION

The judgment of the Court of Appeals for the Sev-

enth Circuit was éntered on April 26, 1979. A timely

petition for rehearing was denied on June 14, 1979.

The petition for writ of certiorari was filed on Sep-

tember 11, 1979, and was granted by this Court on

March 17, 1980. This Court’s jurisdiction rests upon

28 U.S.C. § 1254(1) and Rule 22(3) of the Supreme

Court Rules.

STATUTORY PROVISIONS INVOLVED

1. The Federal Water Pollution Control Act, as

amended, 33 U.S.C $§ 1251-1376, is lengthy, and its

pertinent provisions are therefore set forth at Pet.

App. J-1 et seq.

2. Section 17 of the Illinois Civil Practice Act, Il.

Rev. Stat. ch. 110, § 17 (1971), provided in perti-

nent part as follows at the date the instant action

was commenced (it has not been amended in any

pertinent respect since then):

**(1) Any person, whether or not a citizen or

resident of this State, who in person or through

agent does any of the acts hereinafter enumer-

ated, thereby; submits such person ... to the

jurisdiction of the courts of this State as to

any cause of action arising from the doing of

any such acts:

* * *

(b) The commission of a tortious act within

this State.’’

3. 28 U.S.C. 1391(b) states:

‘*A eivil action wherein jurisdiction is not

founded solely on diversity of citizenship may

be brought only in the judicial district where

all defendants reside, or in which the claim

arose, except as otherwise provided by law.”’

QUESTIONS PRESENTED

1. Do federal statutes and federal regulations con-

trol the federal common law of water pollution

nuisance, now that Congress has adopted the Fed-

eral Water Pollution Control Act Amendments of

1972 and the Clean Water Act of 1977, acts intend-

ed to provide uniformity, finality and an effective

remedy to all persons including states in the field

of water pollution control, and t« assure that simi-

lar point sources with similar characteristics will

be required to meet similar effluent limitations, by

providing for regulatory control of point source

discharges by an agency better equipped for the

purpose than the courts by reason of specialization,

experience and expertise?

2. May the courts conclude that a federal common law

nuisance has been established where the trial court

found that: (1) fecal coliform counts on Illinois’

Lake Michigan beaches failed to demonstrate any

pollution coming from Milwaukee; (2) there is no

evidence of any outbreak of water-related diseases

in Illinois; (8) there is no evidence that any speci-

fic algal, taste or odor problem is attributable to

Milwaukee’s discharges; (4) it is impossible to

measure accurately any effect on the lake caused

by Milwaukee’s discharges or to measure accu-

rately the diminution in the amount of nutrients

in the lake if they were altogether discontinued ;

and (5) plaintiffs failed to perform studies which

they could and should have performed to determine

whether pathogens and pollutants in Milwaukee’s

sewage effluents actually reached plaintiffs’ waters ?

. May the courts hold that a federal common law

nuisance has been established solely upon expert

testimony regarding the theoretical possibility of

exposure to relatively short incubation period en-

teroviral diseases, where the activity posing the

theoretical possibility-.of exposure has existed for

many decades, but the trial court expressly found

that there is no evidence of any outbreak of any

enteroviral disease ?

. May the courts hold that Milwaukee is creating a

federal common law nuisance on the basis of ex-

press findings by the trial court that: (1) Milwau-

kee’s nutrient discharges to the lake cannot be iso-

lated out, either legally or factually; (2) balancing

the equities is difficult to apply because each dollar

of expenditure for better sewage treatment cannot

be shown to result in a specific amount-of benefit

to the lake; (3) there is no evidence of Milwaukee’s

discharges having a present effect on fish life; (4)

there is no evidence of any specific algal, taste or

odor problem attributable to Milwaukee; and (5)

nutrients from many sources, only some of which

emanate from Milwaukee, are causing accelerated

eutrophication of the lake?

5. Where federal statutory and administrative pro-

visions establish a federal policy to require a cost-

effective approach to pollution control, may the

trial court expressly refuse to consider costs and

cost-effective considerations, and instead fashion a

remedy without any regard whatsoever to such

matters ?

6. Where the defendants did nothing in the forum

state and nothing to avail themselves of the law or

of the privilege of conducting activities within

that state, did the federal district court located in

the forum state have personal jurisdiction over the

defendants and did venue properly lie in the

Northern District of Illinois?

STATEMENT OF THE CASE

This case had its origin in the Supreme Court’s

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

It presents the first opportunity for this Court to de-

fine the scope of its decision in Illinois v. Milwaukee in

light of the subsequent enactment of the Federal Wa-

ter Pollution Control Act Amendments of 1972 and

the Clean Water Act of 1977, and implementation of

the nationwide regulatory and funding program cre-

ated by Congress in that legislation. The decision in

this case will determine whether your petitioners, the

City of Milwaukee, the Sewerage Commission of the

City of Milwaukee, and the Metropolitan Sewerage

Commission of the County of Milwaukee (cumula-

tively, ‘‘Milwaukee’’), must spend, and if so when they

must spend, literally hundreds of millions of dollars

over and above what is required under pollution dis-

charge permits issued pursuant to the new federal

statutes. The Court’s decision will affect the expendi-

ture of tens of billions of dollars by municipalities

across the nation.

In [llinots v. Milwaukee, supra, the State of Illinois

filed a motion for leave to file a complaint under the

Supreme Court’s original jurisdiction against four

cities and two local sewerage commissions of the State

of Wisconsin, alleging that the defendants were pol-

luting Lake Michigan, an interstate body of water, and

seeking the abatement of the alleged public nuisance.

The Court denied the motion for leave to file under the

Court’s original jurisdiction without prejudice to the

right of the State of Illinois to file an action in an ap-

propriate United States District Court. The Court

noted that the basis of such an action would be ‘‘fed-

eral common law’’, 406 U.S. at 103 (Pet. I-12); that,

as of the time of the decision, the federal statutes and

regulations provided only for “long-drawn-out” abate-

ment procedures which were not inconsistent with the

application of a federal common law to abate a public

nuisance in interstate or navigable waters, (Id.); but

that ‘‘new federal laws and new federal regulations

may in time preempt the field of federal common law

of nuisance.” 406 U.S. at 107 (Pet. App. I-16).

On May 19, 1972, shortly after the Supreme Court’s

decision, the State of Illinois commenced the present

action in the United States District Court for the

Northern District of Illinois.

Five months later, on October 18, 1972, Congress

enacted PL 92-500, the Federal Water Pollution Con-

trol Act Amendments of 1972 (the ‘1972 Act’’).* That

enactment substantially replaced the previous lan-

guage of the Federal Water Pollution Control Act re-

fered to in the Supreme Court’s decision, including

the Water Quality Act of 1965, the Clean Water Res-

toration Act of 1966, and the Water Quality Improve-

ment Act of 1970, all of which were amendments to the

initial Federal Water Pollution Control Act passed

in 1948.

On December 27, 1977, shortly after the entry of the

trial court’s judgment in this action, Congress enacted

and the President signed the Clean Water Act of 1977

(the ‘1977 Act’), PL 95-217, which amended

KF WPCA in certain important respects. Among many

other changes, Section 41 of the 1977 Act added new

See. 217 (§ 1297) :

‘‘Any guidelines for cost-effectiveness analysis

published by the Administrator under this title

shall provide for the identification and selection

of cost effective alternatives to comply with the

objective and goals of this Act and sections 201

(b), (201d), 201(g)(2)(A), and 301(b)(2)(B)

[$§ 1281(b), 1281(d), 1281(g)(2)(A), and 1311

(b) (2) (B)] of this Act.’’

Thus, Congress dealt with the precise subject mat-

tter of this action before judgment was entered below,

and refined the congressional mandate after judgment

was entered.

1The Federal Water Pollution Control Act, as amended, is

codified in 23 U.S.C. §§ 1251-1376. For ease of cross-reference, the

U.S.C. § numbers will be set out in parentheses after the Act’s

section numbers; viz.: Sec. 301 (§ 1311). The present Federal

Water Pollution Control Act, as amended, is referred to herein

as either ‘‘the Act’’ or ‘‘FWPCA.’’

A. Description of the Metropolitan Milwaukee Sewerage System

and Its Discharge Permit History

Each of the petitioners is a municipal body corpo-

rate organized and existing under the laws of the State

of Wisconsin.’

Although each has separate functions, taken together

the petitioners construct, operate and maintain sewer

facilities which serve all of Milwaukee County, Wis-

consin (except for the City of South Milwaukee). The

area served (‘‘Metropolitan Milwaukee Area’’) is ap-

proximately 420 square miles and has a population in

excess of 1 million persons (Trial Transcript pp.

9262-9267).

The facilities operated by the petitioners to serve

the Metropolitan Milwaukee Area include a series of

sewer systems * and two sewage treatment plants. The

Metropolitan Sewerage Commission of the County of

Milwaukee (‘‘Metropolitan Commission”) constructs

sewers in the Metropolitan Milwaukee Area outside of

the City of Milwaukee. Upon completion, sewers con-

structed by the Metropolitan Commission are trans-

ferred to the Sewerage Commission of the City of Mil-

waukee (‘‘City Commission’’) which thereafter oper-

ates and maintains them along with sewers which it has

constructed in the City of Milwaukee. The City Com-

mission also operates and maintains the two sewage

? With respect to the petitioning commissions, see Wis. Stats.

§§ 59.96(1) and 62.60-.67 (1977).

* Sewer systems may be ‘‘separated’’ systems, in which only

sanitary sewage is collected and treated, or ‘‘combined’’ systems

which gather both sanitary sewage and storm water runoff and

transport them in the same conduits for treatment. Combined sys-

tems overflow when their capacities are exceeded because of the

presence of large amounts of storm water.

treatment plants. The City of Milwaukee operates and

maintains some sewers in the City of Milwaukee.

The two sewage treatment plants, which are respec-

tively 25 and 39 miles from the Illinois border, are de-

signed to provide “secondary’’ treatment‘ for sewage

effluent discharges (e.g., D.Ex. 84, Tr. 4843, Tr. 13628 ;

P.Ex. 89-90, Tr. 693 and 754).° The effluent discharge

from the main sewage treatment plant is made to Lake

Michigan inside of a man-made breakwater three miles

frem the nearest Milwaukee drinking water intake

(D.Ex. 504, Tr. 4024). Other sewage effluent discharges

are made from the other plant directly into the lake

approximately eight miles from the nearest Milwaukee

drinking water intake and approximately one and one-

half miles from the drinking water intake of Oak

Creek, Wisconsin, and from time to time directly into

tributary streams of Lake Michigan from designated

‘‘overflow’’ points in the sewage collection system.

(Id.) * Even with this close juxtaposition of drinking

water intakes and effluent points, there is no record

showing that the Milwaukee area has experienced en-

*See 599 F.2d at 173-174 (Pet. App. A-40) for a description of

‘*secondary treatment.’’

5 References to the trial transcript herein are as follows: ‘‘Tr.

——’’. All exhibits identified by the parties were admitted into

evidence at Tr. 13628 except for exhibits specifically excluded by

the trial court. Accordingly, record references herein in connec-

tion with exhibits specify those places where such exhibits were

identified.

6 ‘*Overflow’’ is defined in the Judgment Order from which this

appeal arises as ‘‘a crossover, bypass, diversion structure, relief

structure, pump station or any other device or mechanism by which

human fecal waste is discharged directly or indirectly to public

streams, rivers or lakes without collection and treatment’’ accord-

ing to specified standards (Pet. App. D-2).

teroviral or bacterial epidemics, or even minor out-

breaks of such diseases.

In 1974 the petitioning City Commission and the

City of Milwaukee applied to the State of Wisconsin

Department of Natural Resources (‘‘DNR’’) for per-

mits to discharge the described sewage effluent‘ into

Lake Michigan and certain tributary streams in Mil-

waukee County. Such applications were made pursu-

ant to FWPCA, and procedures adopted thereunder.

Prior to receiving such permit applications, DNR

qualified under Section 402 (§ 1342) of FWPCA as a

discharge permit-granting agency under the superin-

tending jurisdiction of the United States Environ-

mental Protection Agency (‘‘EPA’’). Each and every

action of DNR in the premises was in accordance with

the requirements of FWPCA and was tacitly or ac-

tively approved by EPA (Tr. 9323).

In late 1974, following public notice, including no-

tice to each of the respondents pursuant to Sec. 402

(b) (3) (§ 1342(b) (3)) of FWPCA and hearing (none

of the respondents chose to participate therein), DNR

issued discharge permits to the City Commission and

the City of Milwaukee under which they have operated,

are operating, and at all times material herein were

operating the sewer system and treatment plants serv-

ing the Metropolitan Milwaukee Area. (P.Ex. 62-64,

App. 371-454, Tr. 257; D.Ex. 1110, Tr. 7508.)

The permits issued by DNR established specific re-

quirements and parameters for the sewage effluent dis-

charges of the City Commission and the City of Mil-

waukee. The permit also established timetables for the

attainment of such requirements and parameters, pro-

vided for monitoring for compliance, and contem-

plated enforcement of their terms. (Jd.)

The City Commission failed in some respects to fully

comply with its permit requirements. Pursuant to the

permit enforcement authority specified by Sec. 402(b)

(§ 1342(b)) of FWPCA, the DNR effectuated en-

forcement proceedings in Dane County Circuit Court,

Dane County, Wisconsin, in an action entitled The

Sewerage Commission of the City of Milwaukee and

Metropolitan Sewerage Commission of the County of

Milwaukee v. State of Wisconsin Department of Nat-

ural Resources (Case No. 152-1342). The permit en-

forcement action resulted in the entry on May 28,

1977 of a judgment enforcing the City Commission’s

discharge permit requirements and providing compre-

hensive timetables for making necessary improve-

ments, including the correction of wet-weather over-

flows from Milwaukee’s combined sewer area (D.Ex.

1311, App. 455-488, Tr. 9417 [renumbered from D.Ex.

1211 to D.Ex. 1311 at Tr. 9720], the ‘‘Dane County

Order’’).

Insofar as material here, the discharge permit re-

quirements imposed on Milwaukee, as implemented by

the Dane County Order, include the following:

1. Secondary treatment shall be provided for all

effluents processed in sewage treatment plants

operated by Milwaukee.

2. The secondary treatment shall cause the effluent

discharges from the treatment plants to contain

no more than 30 parts per million (‘30 PPM”’

or ‘30 mg/l’) suspended solids (‘‘SS’’) based on

a 30 day average, no more than 30 PPM of car-

bonaceous 5 day biochemical oxygen demand

(‘‘BODs’’) based on a 30 day average, no more

than 1 PPM phosphorus (‘‘P’’) based on a 30

day average, and no more than 200 fecal coliform

per 100 milliliters based on a 30 day average.

3. Chlorination shall be provided at certain times,

but no requirement is imposed as to chlorine

residuals.

4. Elimination of dry-weather overflows throughout

the system and correction or control of storm in-

duced combined sewer overflows (“‘CSO’’) in the

combined sewer area is required. Specific relief

provisions related to the availability and pro-

vision of state and federal funding are included

relating to CSO and some sewer extensions, with

provision for certain deadline extensions so long

as $13 million per year for the combined sewer

overflow program and $15 million per year for

sewer extensions measured in 1976 dollars of lo-

eal funds are being expended. (P.Ex. 62-63, App.

371-421, Tr. 257; D.Ex. 1110, Tr. 7508, and D.Ex.

1311, Tr. 9417.)

The cost-effective character of the ‘‘correction or

control’’ of CSO required in the permits, and the de-

pendency upon the availability of federal funds, re-

flect the mandate of the federal statute and are absent

in the decisions below.

It must be emphasized that the Dane County Order

calls for correction or control of combined sewer over-

flows. The Dane County Order will be enforced to guar-

antee the correction or control of combined sewer ov-

erflows. The Dane County order is also ‘‘cost sensi-

tive’’ in that combined sewer overflows were recognized

by the parties to be only a portion of the problem faced

by Milwaukee and that combined sewer overflows, once

several major overflow points were eliminated, would

have a lesser priority than other remedial work being

undertaken by Milwaukee. For that reason, the Dane

County order was drafted to require continuous prog-

ress toward control of combined sewer overflows on a

schedule which reflected the fact that federal funds

might not be available in certain years in the quantity

necessary for optimum progress. (Id.)

B. Procedural History

This case commenced on May 19, 1972, shortly after

this Court’s decision in Illinois v. Milwaukee, supra.

The Illinois’ complaint (App. 23-32) was served upon

the defendants pursuant to the [llinois long-arm stat-

ute, Ill. Rev. Stat. ch. 110, § 17 (1971) (see ‘‘Statutory

Provisions Involved,’’ supra). Subsequent to service

of the complaint, Milwaukee moved to dismiss the ac-

tion on the ground that the trial court lacked personal

jurisdiction, and that venue of the action did not prop-

erly lie in the Northern District of Illinois. The Dis-

trict Court denied these motions. Illinois v. Milwaukee,

4 K.R.C. 1849 (N.D. Ill. 1972) (Pet. App. H-1 et seq.).

Milwaukee then moved to dismiss the complaint pur-

suant to Rule 12(b) of the Federal Rules of Civil

Procedure. This motion was also denied. [llinois v.

Milwaukee, 366 F.Supp. 298 (N.D. Ill. 1973) (Pet.

App. G-1 et seq.).

Trial to the court commenced on January 11, 1977.

It spanned six months, produced over 14,000 pages of

transcript, hundreds of exhibits, and focused upon

highly technical subject matter requiring extensive use

of expert testimony in attempts to explain, teach and

interpret complex scientific issues in such fields as

limnology, oceanography and virology, as well as so-

phisticated engineering concepts. The respondents’ ex-

perts limited themselves to theorizing to their conclu-

sions, but Milwaukee’s experts reviewed actual tests

performed by the Milwaukee experts in Lake Michi-

gan, as well as reviewing the applicable scientific the-

ories. It was in this setting that the trial court, at the

conclusion of the case, rejected briefs and dictated a

decision from the bench. In the trial court’s words:

‘‘Ordinarily, when the trier of facts weighs evi-

dence and attempts to come to factual conclusions,

he does so in the light of his own experience and

his own observations and his own common sense.

Not only is this proper to do, it is something that

we specifically instruct juries to do in every jury

case.

The nature of the subject matter here, however, is

such that my own experience and observations in

life are of relatively little use to me. It is well

known to all of us that the arcane subject matter

of some of the expert testimony in this case was

sometimes over the heads of all of us to one height

or another. I would be certainly less than candid

if I did not acknowledge that my grasp of some of

the testimony was less complete than I would like

it to be, but short of enrolling in a university

course directed toward a reorientation of my en-

tire education and spending the years that that

would involve, I know of no remedy for the prob-

lem.’’ (Pet. App. F-3 and 4.)

Significantly, the trial court did not, as a ‘‘remedy

for the problem,’’ defer to the expertise of the admin-

istrative body set up by Congress to deal with the

subject.

In subsequent hearings before the District Court on

September 9, 1977 and November 14, 1977, where the

remedy was under consideration, the District Court

clearly indicated that the two previously imposed re-

quirements of the court, i.e., (1) to completely ‘‘elimi-

nate’’ all overflows; and (2) to meet the effluent limita-

tions specified by the court,’ were both to be applicable

without respect to their costs, without benefit of any

cost-effective analysis and without regard to the avail-

ability of federal funding under FW PCA, which fund-

ing is limited to cost-effective solutions to pollution

control (Transcript of September 9, 1977 hearing be-

fore the District Court at 107-111; Transcript of No-

vember 14, 1977 hearing before the District Court

at 38 and 56). Thus, the District Court precluded evi-

dence on cost-effective methods of controlling sewer

overflows.

C. Decision of the District Court and the Court of Appeals

During the trial. the State of Illinois failed to call

a single witness who had any direct responsibility for

public health in that state. The witnesses presented by

Tilinois had no specific experience with public health

in the State of Illinois, the City of Milwaukee or Lake

Michigan. They were witnesses who were qualified as

“experts,” who testified with respect to general scien-

tific principles, and who reached conclusions therefrom

with respect to Illinois, Milwaukee and Lake Michi-

gan. While the District Court favorably commented

upon the credentials of all of the expert witnesses who

testified at the trial, the court also noted that all of the

witnesses were interested in the outcome of the case

and none of them were neutral as between the parties

or as to the outcome of the case (Pet. App. F-4). The

determination of liability and remedy to be imposed

™This portion of the District Court judgment was reversed by

the Court of Appeals, 599 F.2d at 177 (Pet. App. A-48), and

Milwaukee seeks review only of the requirement to eliminate all

sewer overflows.

upon Milwaukee was reached in the face of the follow-

ing express findings by the District Court:

The State of Illinois could have performed stud-

ies to determine whether Milwaukee sewage efflu-

ents are sufficiently diluted by Lake Michigan or

inactivated by other means so that only insigni-

ficant numbers of pathogens and other pollutants,

if any, could reach Illinois waters. Illinois elected

not to do so, and in so electing chose to produce

less evidence than it should have (Pet. App.

F-10).

There are fecal coliform counts on Illinois

beaches which fail to demonstrate any pollution

coming from Milwaukee (Pet. App. F-11).

There is no evidence of any outbreak of water-

related diseases in Illinois (Pet. App. F-12).

There is no evidence of any present effect of Mil-

waukee discharges or, for that matter, of the

effect of any other nutrient discharges, on fish

life in the lake (Pet. App. F-18).

There is no evidence that any specific algal prob--

lem or any specific taste and odor problem ex-

perienced by residents of Illinois or Michigan is

attributable to Milwaukee sewage as opposed to

the nutrients discharged by any other point or

non-point sourse. (/d.)

It is impossible to measure accurately any effect

on the lake caused by Milwaukee’s discharges, or

to measure accurately the diminution in the

amount of nutrients in the lake which would re-

sult if Milwaukee discharges were altogether dis-

continued (Pet. App. F-19).

Based on this record, the District Court entered

judgment in favor of the plaintiffs. The judgment or-

dered essentially two basic remedies (Pet. App. D-1

et seq.). The first required Milwaukee to treat all sew-

age at all times in compliance with effluent limitations

many times more stringent than those imposed pursu-

ant to FW PCA and requiring an additional treatment

process known as “‘advanced wastewater treatment”’ to

be construeted and operated over and above the statu-

torily mandated secondary treatment.’ The second

basic remedy required Milwaukee to construct a sew-

age conveyance, storage and treatment facility having

the capacity to ‘‘eliminate’’ all overflows of sewage

from combined sanitary and storm sewers during pe-

riods of wet weather. The system was to be large

enough to permit advanced waste treatment of water

from any storm up to the size of the largest storm in

Milwaukee’s historical record, and to permit the treat-

ment of any overflows which may conceivably occur

from a storm larger than the largest storm in that his-

tory with “‘bar screens, followed by drum screens, fol-

lowed by chlorination prior to discharge.”’

The Court of Appeals dealt with the two basic parts

of the District Court judgment separately. It reversed

the District Court’s order insofar as it imposed effluent

limitations more stringent than those required by

FWPCA, which reversal eliminated the need to con-

struct advanced waste treatment facilities required to

meet the reversed effluent limitations. However, the

Court of Appeals affirmed the District Court’s order to

the extent that the order required the ‘‘elimination” of

all sewage overflows during wet weather periods on the

5 Generally, ‘‘advanced wastewater treatment’’ refers to tertiary

treatment processes requiring additional capital facilities.

basis—unsupported in the record—that Milwaukee’s

‘discharges of raw sewage . . . pose a significant risk

of injury to Illinois residents. .. . no one even attempts

to justify such discharges as harmless or insignifi-

eant.’? 599 F.2d at 177 (Pet. App. A-47). That holding

left intact the need to undertake a massive construc-

tion program to build additional sewage collection,

transport and treatment facilities without regard to

the costs of elimination of overflows as distinguished

from the control of overflows. (See discussion infra at

56-63).

D. Non-cost-effective Elimination of Overflows Was Ordered by

the Courts Below

The concept of control of sewer overflows versus the

concept of elimination of sewer overflows mandated

by the courts below, reflects and describes the basic

and fundamental difference between the cost-effective

solution to sewer overflows enacted by Congress and

the remedy ordered oy the courts below. Any sewer

system, including its treatment plants, has inherent

storage capacity. When that capacity is exceeded, it

overflows.

Any sewer system has the capacity to contain and

process in the pipes, conduits, tunnels and plants which

constitute the system a volume much greater than the

dry-weather flow to the system. It follows that over-

flows occur when the system is affected by a storm

event. A ‘‘eontrolled” sewer system is designed to con-

tain at least the ‘‘first flush’’ of storm water. This

means that when overflows occur in a properly ‘‘con-

trolled’’ system, they occur after the system’s stored

pollutants have been flushed to and treated in the

treatment plants of the system, and that the overflow-

ing liquids from a ‘‘controlled’’ system are largely

storm water runoff.

Congress and the EPA, the administrative agency

designated by FWPCA to administer water pollution

control activities under the Act, recognize this factor

in providing for “econtrol’’ of sewer overflows on a

cost-effective basis. In essence, the permits granted

under FWPCA establish a level of protection of the

nation’s waters by mandating sufficient volume capa-

city in a ‘‘controlled’’ sewer system to prevent over-

flows until a particular magnitude of storm event oc-

curs, usually the ‘‘six month’ or ‘“‘two year’’ storm

depending on the specifics of the system and the waters

into which the discharge will be made. The amount of

control imposed, i.e., the storm event planned for, is

related to the costs of the degree of control required

to meet the water quality requirements of the receiv-

ing waters and the other circumstances of the particu-

lar system.

In contrast to the legislative ‘‘control’’ approach,

the approach of the courts below was to eliminate over-

flows by ordering the construction of mammoth storage

capacity with attendant pumping and other facilities,

regardless of cost, regardless of the fact that overflows

caused by storms of rare magnitude can be eliminated

only at enormous cost, and regardless of any demon-

strated necessity of doing so to protect public health.

Congress has recognized the law of diminishing re-

turns, and the regulatory permit system it established

provides for control of overflows from sewer systems

so as to prevent the discharge of the vast majority of

pollutants, while keeping costs in perspective. The

courts below, however, have ignored the concepts of

cost-effectiveness in favor of total elimination without

regard either to costs incurred or benefits secured.

SUMMARY OF ARGUMENT

When this Court decided Illinois v. Milwaukee, su-

pra, the federal statute dealing with water pollution

was weak and ineffective. This Court therefore pro-

mulgated the federal common law of water pollution

nuisance which, the Court recognized, controlled over

state law and was subject to Congressional act and pre-

emption.

Before this Court decided Illinois v. Milwaukee,

Congress was addressing the same weaknesses which

concerned this Court. The result was PL 92-500 (the

1972 Act), enacted only five months after the decision.

The statute provides for readily enforceable effluent

limitations. Administered by an expert administrative

agency, the Act established an effective, comprehen-

sive, uniform and nationwide statutory and regulatory

framework for controlling water pollution resulting

from ‘‘point source discharges’’. Under the 1972 Act,

point source discharges are allowed only when made in

compliance with the terms of a permit issued pursuant

to the Act.

The 1972 Act was amended by PL 95-217 in 1977,

which added the concept that pollution control mea-

sures should be cost-effective, i.e., the benefits achieved

should justify the costs incurred. The 1977 Act also

provided for extensions of time where failure to

achieve mandated controls resulted from the unavail-

ability of federal funds.

Under the 1972 Act, Illinois and Michigan had avail-

able to them a number of meaningful statutory reme-

dies pursuant to which they could have sought all re-

lief which they sought in the District Court. [linois

and Michigan failed to pursue and exhaust any of

these remedies, and the District Court, which candidly

recognized its own inability te grasp some of the tes-

timony on the arcane subject matter involved, failed

to recognize and defer to the primary jurisdiction of

the expert administrative agency designated by Con-

gress to administer the Act.

Instead, the District Court found a nuisance based

solely upon the disputed opinions of expert witnesses,

in the absence of any empirical evidence of harm to

Illinois or Michigan. The District Court then imposed

a mandatory injunction upon Milwaukee requiring it

to eliminate all sewer overflows, whereas the permits

issued to Milwaukee pursuant to the Act and a state

court judgment enforcing such permits only require

Milwaukee to correct and control sewer overflows.

The District Court precluded evidence dealing with

practicable means of controlling sewer overflows short

of complete elimination, and evidence dealing with the

monumental costs of, and the lack of cost-effectiveness

of, complete elimination of sewer overflows. The Dis-

trict Court consequently precluded any possibility of

balancing the equities and hardships in formulating

the terms of the mandatory injunction it granted, or

of making any determination that the relief awarded

was cost-effective. In affirming the District Court’s

order to eliminate all sewer overflows, the Court of

Appeals relied in part upon the absence of the very

evidence which the District Court precluded.

Congress and the Environmental Protection Agency

require cost-effective ‘‘control” of sewer overflows. The

amount of control imposed, i.e., the amount of capacity

designed into the sewer system to prevent overflows

until some particular magnitude of storm event oc-

curs, such as the ‘‘two-year’’ storm, is related to the

eosts of achieving the degree of control required to

meet water quality requirements of the receiving wa-

ters and other circumstances of the particular system.

In contrast to the legislative-administrative ‘‘control’’

approach, the courts below ordered complete elimina-

tion, requiring the construction of mammoth storage

and pumping facilities, regardless of the enormous

costs involved and the greatly diminished returns of

eliminating infrequent overflows caused by rare storm

events, and regardless of the lack of any demonstrated

necessity of doing so to protect [llinois and Michigan.

In a combined sewer system, where both sanitary

sewage and storm water runoff are collected and trans-

ported in the same conduits to the treatment plant,

overflows typically occur when the storage capacity of

the system is exceeded during a storm event. A ‘‘con-

trolled’’ sewer system is one which is designed to con-

tain at least the ‘‘first flush’’ of storm water. When

overflows occur in a properly ‘‘controlled’’ system,

they occur after the system’s stored pollutants have

been flushed to the treatment plant, so that the over-

flowing liquids consist largely of storm water runoff.

A state court judgment to which Milwaukee is sub-

ject guarantees that the permit requirements to con-

trol sewer overflows will be enforced. The additional

requirement to eliminate overflows, imposed by the

courts below, will achieve little additional pollution

reduction, and only at an additional cost to Milwau-

kee of hundreds of millions of dollars. Most of the

major cities of this country are plagued with sewer

overflow problems. The additional cost of eliminating

(as distinguished from controlling) sewer overflows

across the nation (which are permitted by Illinois and

Michigan in their own jurisdictions) will be tens of

billions of dollars.

Illinois’ federal common Jaw nuisance claim against

Milwaukee is completely controlled by FWPCA. It is

clear the 1972 Act, as amended by the 1977 Act, now

constitutes the federal law applicable to interstate

water pollution disputes. It provides uniformity, final-

ity and enforceability. Uniformity is achieved through

uniform limitations, standards and procedures, admin-

istered by an expert administrative agency. Finality is

achieved because EPA action becomes final and uncon-

testable unless review is sought within 90 days. Fur-

ther, compliance with the terms of a permit issued un-

der FWPCA is deemed to be compliance with the Act.

Enforceability is achieved through a number of pro-

visions which were purposefully designed to encourage

the participation of all interested persons, private in-

dividuals to states, in each stage of the regulatory

process, including establishment of limitations and

standards, granting of permits, and assuring compli-

ance with the permits.

In the face of this comprehensive legislative scheme,

the federal courts should have no power to substitute

their own notions of what the federal law of interstate

water pollution control should be on an ad hoc, case-

by-ease basis, and certainly the federal courts should

not provide far-reaching injunction remedies under

the federal common law when adequate federal statu-

tory remedies are available.

Il.

Without respect to the impact of FWPCA on the

federal common law of nuisance, the respondents failed

to prove the existence of a nuisance. The determination

of liability and the remedy to be imposed upon Mil-

waukee in this case was reached in the face of the

following express findings by the District Court:

1. The State of Illinois could have performed studies

to determine whether Milwaukee sewage effluents

are sufficiently diluted by Lake Michigan or in-

activated by other means so that only insignifi-

cant numbers of pathogens and other pollutants,

if any, could reach Illinois waters. Illinois elected

not to do so, and in so electing chose to produce

less evidence than it should have.

2. There are fecal coliform counts on Illinois beaches

which fail to demonstrate any pollution coming

from Milwaukee.

3. There is no evidence of any outbreak of water-

related diseases in Illinois.

4, There is no evidence of any present effect of

Ijlinois discharges or, for that matter, of the

effect of any other nutrient discharges on fish

life in the lake.

5. There is no evidence that any specific algal prob-

lem or any specific taste and odor problem experi-

enced by residents of Illinois or Michigan is at-

tributable to Milwaukee sewage as opposed to

the nutrients discharged by any other point or

non-point source.

6. It is impossible to measure accurately any effect

on the lake caused by Milwaukee’s discharges, or

to measure accurately the diminution in the

amount of nutrients in the lake which would re-

sult if Milwaukee discharges were altogether dis-

continued.

Certainly, if there were any merit to the speculated

hazard, there would be some empirical evidence of its

existence resulting from Milwaukee’s discharges to

Lake Michigan over a period of more than 100 years.

There is nothing! No witness could place a single path-

ogen in Illinois or Michigan waters! Illinois relies

entirely upon the disputed theories of experts. In prior

cases before this Court involving alleged interstate

water pollution nuisance, evidence considerably

stronger than that existing in this case was found in-

sufficient and resulted in a dismissal.

If the hazards which Illinois and Michigan allege

are posed by Milwaukee’s overflows were truly a con-

cern, both Illinois and Michigan would require the

elimination of all overflows in their own jurisdictions

to protect their own citizens. In fact, neither Illinois

nor Michigan requires the total elimination of all over-

flows as ordered by the courts below. The imposition of

such a burden on Milwaukee at the behest of sovereign

states which do not impose similar burdens on their own

citizens cannot be justified by reliance upon federal

common law.

Ill.

The Illinois’ complaint herein was served upon the

petitioners pursuant to the Illinois ‘‘long-arm”’ statute

which provides for personal jurisdiction in the event

of ‘‘a tortious act within’’ the State of Illinois. The

facts of this case clearly establish that none of the

petitioners have acted in any way which would justify

the conclusion that they committed a tortious act with-

in the State of Lllinois, or that they had the requisite

‘‘minimal contacts’’ with the State of Illinois to satisfy

the constitutional prerequisite of due process of law.

IV.

The courts below erroneously relied upon the words

‘for in which the claim arose’ in determining that

venue was proper in the Northern District of Illinois

‘‘where the injury was suffered.’’ To the contrary, the

claims made against Milwaukee were ‘‘local,” with the

locus being their source. Further, all of the conduct

complained of occurred in the Eastern District of Wis-

consin. Very few of the witnesses (included respon-

‘dents’ witnesses) resided in the district of trial. Many

of Milwaukee’s witnesses and all of the petitioners

reside in the Eastern District of Wisconsin, not in the

Northern District of Illinois. Consequently, venue was

improperly laid in the Northern District of Illinois.

ARGUMENT

I. IN PL 92-500, AS AMENDED BY PL 95-217, CONGRESS HAS

MADE THE LEGISLATIVE CHOICE TO CONTROL WATER

POLLUTION BY MEANS OF A COMPREHENSIVE, COST-

EFFECTIVE FEDERAL SCHEME WHICH IS DEPENDENT UPON

UNIFORM STANDARDS AND PROCEDURES ADMINISTERED

BY AN EXPERT ADMINISTRATIVE AGENCY. IN IGNORING

THE UNIFORM STATUTORY STANDARDS, PROCEDURES,

AND THE COSTS OF THE REMEDY IMPOSED, THE COURTS

BELOW HAVE ELEVATED FEDERAL COMMON LAW ABOVE

FEDERAL STATUTORY LAW CONTROLLING INTERSTATE

WASTEWATER DISCHARGES.

A. The Necessity for Federal Common Law Independent of an

Ineffective Federal Statute No Longer Exists.’

From 1948 until 1972, when this Court decided

Illinois v. Milwaukee, supra, the federal statutes deal-

ing with water pollution control were weak and ineffec-

tive, relying basically upon state-developed ambient

“water quality” standards, i.e., standards specifying

*°The chronological progression of key events in the legislative

history of FWPCA refutes any argument that Congress intended

to preserve the federal common law of nuisance as distinguished

from state common law. The debates in the House and Senate and

the drafting of the language of the 1972 Act, excepting only that

which occurred in conference, took place prior to the Court’s deci-

sion in Illinois v. Milwaukee, supra, and at a time when this

Court’s decision in Ohio v. Wyandotte Chemicals Corp,, 401 U.S.

493 (1971) clearly indicated that it was state common law that

was applicable. It was only after the legislative draftsmanship had

occurred but immediately before enactment of the 1972 Act that

this Court acted to fashion the federal common law of nuisance.

Thus, this Court acted before the 1972 Act in light of the ineffec-

tive legislation then in place, while Congress, in framing the 1972

Act, acted as to its operative legislative history in the light of

Wyandotte even though formal enactment of the 1972 Act occurred

immediately after the decision in Jllinois v. Milwaukee, supra.

It is significant that throughout the entire legislative history there

is not one single mention of the federal common law, not surpris-

ing in view of the historical record.

the characteristics which must be maintained in the»

water into which discharges are made. A conference

procedure was available among representatives of the

state and federal authorities to establish standards if

those set by the state were unacceptably low (former

See. 10(¢)(2) (§1160(c) (2)). Enforcement was pos-

sible only where a discharge resulted in a reduction of

water quality below the specified ambient level (for-

mer Sec. 10(¢)(5) (§ 1160(c)(5)). However, federal

initiative was limited to interstate pollution endanger-

ing health or welfare, and then only after a six-month

wait and administrative hearing. Only if the confer-

ence and hearing stages failed to bring acceptable re-

sults could an abatement suit be brought by federal

authorities (former See. 10(g) (§ 1160(g)). The act

contained two major weaknesses: (1) the use of am-

bient standards rather than discharge standards, and

(2) ineffective enforcement provisions. Ambient stand-

ards could be based on stated legitimate uses of water,

including agricultural and industrial uses. Thus, the

standards might reflect the lowest legitimate use—that

quality of water necessary for industrial purposes.

Before this Court expressed its concerns about the

weaknesses of the then existing federal water pollution

statutes in Jllinvis v. Milwaukee, supra, Congress be-

gan addressing those same concerns. The result was

PL 92-500 (the 1972 Act), enacted only five months

after the decision, which provided an effective, com-

prehensive, uniform, national statutory and regulatory

framework for the control of water pollution. The

keystones to this framework—which controls all ‘‘ point

source discharges’’—are the complementary concepts

that point source discharges are not allowed without a

permit, and that discharges made in compliance with

the terms of a permit are allowed. (See. 301 et seq.

(§ 1311 et seqg.)). For a general discussion of the terms

of the 1972 Act, see Environmental Protection Agency

v. California, 426 U.S. 200 (1976).

The applicability and viability of the federal com-

mon law of water pollution nuisance, fashioned by this

Court in response to the inadequacies of the old statute,

must now be reviewed in light of the subsequently en-

acted 1972 and 1977 Acts.

The Supreme Court’s landmark decision Erie R. Co.

v. Tompkins, 304 U.S. 64, 78 (1938), held that there is

‘*no federal general common law.’”’

While the language appeared to be absolute, the

Court’s decision in Erie has not prevented the develop-

ment by federal courts of what Judge Friendly * has

termed a “‘specialized’’ federal common law. However,

the areas in which such development has occurred since

the Hrie decision are limited to cases where there is an

overriding federal interest in the need for a uniform

rule of decision or where the controversy touches basic

interests of federalism. For example, the Supreme

Court has fashioned federal common law when it saw

a need for a uniform rule with respect to commercial

paper issued by the United States. Clearfield Trust

Co. v. United States, 318 U.S. 363 (1943). The Court

has fashioned federal common law when presented with

issues left unanswered by a federal statutory scheme

and the application of divergent state laws could frus-

trate the purposes of the statute. Textile Workers

Union of America v. Lincoln Mills, 353 U.S. 448

(1957). The Court has fashioned federal common law

” Friendly, In Praise of Erie—And of the New Federal Com-

mon Law, 39 N.Y.U.L.Rev, 383, 405 (1964).

in cases involving questions of international law where

the application of varying state rules might impair the

federal government’s ability to exercise its power to

conduct foreign affairs. Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398 (1964)." Most important to

this case, the Court fashioned federal commen law in

Illinois v. Milwaukee, supra, which involved a contro-

versy between a state and a nonresident over alleged

pollution of an interstate body of water. See also Hind-

erlider v. La Plata River & Cherry Creek Ditch Co.,

304 U.S. 92 (1938).

Several principles are common to these post-Hrie

cases. First, federal common law is extraordinary. In

Wheeldin v. Wheeler, 373 U.S. 647 (1963), Justice

Douglas, the author of Illinois v. Milwaukee, supra,

writing for the Supreme Court in that earlier decision,

said:

‘‘As respects the creation by the federal courts of

common-!aw rights, it is perhaps needless to state

that we are not in the free-wheeling days ante-

dating Erie R. Co. v. Tompkins (citation omitted).

The instances where we have created federal com-

mon law are few and restricted.’’ (Citing Clear-

field and Lincoln Mills as examples), 373 U.S. at

651.

Second, like the common law of the states, federal

common law is a law of first resort, subject to revision

by subsequent legislation. Monaghan, The Supreme

Court, 1974 Term, Foreward: Constitutional Common

Law, 89 Harv.L.Rev. 1, 10-11 (1975). Finally, the

“See, generally, Monaghan, The Supreme Court, 1974 Term,

Foreword: Constitutional Common Law, 89 Harv.L.Rev. 1 (1975) ;

Note, Federal Common Law and Interstate Pollution, 85 Harv.L.

Rev. 1439 (1972).

federal common law that has emerged since Erie effects

a complete ouster of state law in the area. Where fed-

eral concerns mandate the application of federal com-

mon law, that law preempts all state law, including

state statutes, constitutions and judicial decisions,

Hinderlider v. La Plata River & Cherry Creek Ditch

Co., supra, and the federal common law governs the

issue whether it is raised in federal or state court. See

Note, Federal Common Law and Interstate Pollution,

85 Harv.L.Rev. 1439, 1444 (1972).

The Supreme Court’s decision in [llinots v. Milwau-

kee, supra, written by Justice Douglas, acknowledges

these principles. The Court first established its then

perceived need to carve an exception to Erie. The Court

noted the need for uniformity, 406 U.S. at 105 n.6 and

107 n.9 (Pet. App. I-14 n.6 and 16 n9), citing Clear-

field Trust, supra, and Texas v. Pankey, 441 F.2d 236

(5th Cir. 1971); it noted that the then existing federal

statutory scheme with respect to water pollution did

not provide an adequate remedy for protection of

quasi-sovereign interests, 406 U.S. at 102-103 (Pet.

App. I-11 and 12), citing Lincoln Mills, supra; it noted

the need to provide the states with an appropriate

forum to peacefully resolve controversies involving

quast-sovereign interests which, had there not been a

federal union, would in all likelihood have resulted in

the use of force, 406 U.S. at 104 and 107 (Pet. App.

I-13 and 16), citing Missour: v. Illinois, 200 U.S. 496

(1906); and the Court determined that federal com-

mon law, not state law, would control, thus preempting

state statutory, constitutional and judicial law. See 406

U.S. at 102, 103 n.5 and 107 (Pet. App. I-11, 12 n.5

and 16).

However, the Supreme Court did not stop its analysis

here. It went on to recognize that the federal common

law it envisioned was subject to the legislative suprem-

acy of Congress; that the Congress had the power to

supplant judge-made federal common law through

statute or regulation. The Court said:

‘‘It may happen that new federal laws and new

federal regulations may in time pre-empt the field

of federal common law of nuisance.’’ 406 U.S. at

107 (Pet. App. I-16).

The quotation describes completely where this pre-

cise matter stood when the plaintiffs commenced their

action. The Supreme Court had made all of the fore-

going observations, many of them in Jilinois v. Mil-

waukee, supra, but a most important change occurred

when, five months later, Congress passed the Act. The

very essence of that legislation was to provide a nation-

wide, uniform, comprehensive statutory scheme for

preventing pollution of interstate waters, administered

by an expert administrative agency having national in-

terests and national priorities as its prime objective.

The national interests overrode the parochial interests

of the various states, but provision was made for the

participation of all interested parties, including the

states, to effectively voice their positions at both the

administrative and judicial level.

The concern of the Supreme Court in Illinois v.

Milwaukee, supra—that the states were without an

effective remedy to deal with interstate water pollution

—has been erased by the basic procedures and remedies

created and made available to all interested parties, in-

cluding states, by the 1972 Act. These insure participa-

tion in and an opportunity to be heard regarding estab-

lishment and enforcement of pollution control stand-

ards and limitations for interstate waters.

Analysis of the Act will show that Illinois and Michi-

gan had open to them a number of remedies under the

Act which equate precisely with the remedies sought

in this action. First, they could have established more

stringent water quality standards for their portion of

Lake Michigan and recommended that Wisconsin im-

pose more stringent effluent limitations in the Milwau-

kee permit, asserting that such limitations were neces-

sary to meet or implement the Illinois and Michigan

standards. See. 301(b)(1)(C) (§1811(b)(1)(C)),

See. 303(¢) (§ 1313(¢)), See. 402(b)(5) (§ 1342(b)

(5)). Second, they could have urged Wisconsin to

establish more stringent water quality standards for

the Wisconsin portion of Lake Michigan, either initially

or during Wisconsin’s periodic review of its standards,

asserting a need to protect the public health and wel-

fare or to avoid violation of Illinois’ and Michigan’s

standards. Sees. 303(¢)(1) and (2) (§ 1812(c)(1) and

(2)), and 40 C.F.R. § 130.17(c) (4). Third, they could

have requested and participated in public hearings on

Milwaukee’s permit applications and urged imposition

of more stringent limitations to meet requirements of

Illinois or Michigan water quality standards or other

Illinois or Michigan law. Sec. 402(b)(3) (§ 1342(b)

(3)) and See. 301(b)(1)(C). (§ 1811(b)(1)(C)).

Fourth, they could have submitted written recommen-

dations to Wisconsin with respect to Milwaukee’s per-

mit applications, and, if any part of their reeommenda-

tions were not accepted, they could have requested the

Administrator to veto Wisconsin’s issuance of the per-

mits and, if necessary, formulate the terms of an ac-

ceptable permit. Sec. 402(b(5) (§ 1342(b) (5) ) and Sec.

402(d)(2)(A) (§1342(d)(2)(A)). Fifth, they could

have requested the Administrator to promulgate water

quality related effluent limitations under Section 302

(a) ($1312) for sewerage systems discharging into

Lake Michigan, asserting that the existing effluent limi-

tations would interfere with the attainment or mainte-

nance of that water quality which assures protection

of public water supplies, recreational activities and

other legitimate uses. Hearings are provided for there-

in so that all affected parties may be heard. Finally, if

Illinois or Michigan were dissatisfied with the results

of any of these administrative procedures, they could

have sought judicial review. Section 509(b) (1) (§ 1369)

provides that any interested person may obtain a re-

view of the Administrator’s action: (1) in promulgat-

ing any effluent standard or treatment standard under

See. 301 or 307 ($§ 1811, 1317) of the Act, or any

standard or performance under Sec. 306 (§ 1316) ; (2)

in making any determination with respect to a state

permit program under Sec. 402(b) (§ 1342(b)); or

(3) in issuing or denying a permit under See. 402

(§ 1342). Significantly, they chose to ignore each and

every one of those courses open to them under the

statute. There has been no pursuit of the administra-

tive remedies! See generally, McKart v. United States,

395 U.S. 185, 194-195 (1969).

B. FWPCA Is Comprehensive, Effective and Complete. It Replaces

the Former Federal Statutes Found to Be Ineffective.

It is clear that the 1972 and 1977 Acts constitute the

federal law applicable to pollution of interstate waters.

This legislation, enacted after this Court’s decision in

Illinots v. Milwaukee, supra, completely meets the con-

cern of this Court that federal statutory law prior to

the 1972 Act failed to provide an adequate and effective

basis for the resolution of interstate disputes. The

essence of this legislation was to provide a comprehen-

sive, uniform, nationwide statutory scheme for control-

ling pollution of interstate waters, administered by an

expert administrative agency having national interests

and priorities as its prime objective rather than paro-

chial interests of the various states, but providing for

the participation of all interested parties, including

the states, at both the administrative and judicial levels.

As previously pointed out, in Illinois v. Milwaukee,

supra, this Court said:

‘“‘It may happen that new federal laws and new

federal regulations may in time pre-empt the field

of federal common law of nuisance.”’ 406 U.S. at

107 (Pet. App. I-16) (emphasis added).

At that time, federal legislation attempted to deal with

the subject matter of water resources by specifying

water quality criteria for the receiving water. The

water quality criteria approach was a total failure from

the standpoint of administration and results. However,

five months after the complaint herein was filed, Con-

gress acted to preserve the nation’s water resources by

totally revamping the pertinent federal statutory

framework so as to control the discharge of pollutants.

Congress required every ‘‘point source”’ of wastewater

discharge to be the subject of a federally authorized

and supervised permit, issued under federal supervi-

sion by experts after public hearings, with all affected

parties—including neighboring states—having the

right to be heard and to be protected.

It is equally significant that within two months after

the trial court decision, Congress refined its 1972 legis-

lation, making explicit statutory pronouncements on

the importance of fiscal considerations. It requires cost-

effective solutions to the problems of water pollution,

clarifying national goals in the context of federal fund-

ing (See. 217 (§ 1297) of FWPCA).

(1) Congress Chose Administrative Uniformity as the

Federal Approach to Water Pollution Control.

Congress, of course, had the power to choose among

specific means to control the pollution of this nation’s

waters. The choices were many. Congress could have

left full responsibility with the individual states. It

could have designated the courts as the vehicle to estab-

lish and define the required standards of conduct on a

case-by-case basis. Its choice, however, was the legisla-

tive-administrative partnership, with Congress sup-

plying the objectives and general guidelines and an

expert administrative agency making specific decisions

regarding implementation.

Then Senator, now Secretary, Muskie viewed the

problem as follows:

‘‘Senators will recall from the November de-

bate on the Senate bill that there are three essen-

tial elements to it: Uniformity, finality, and en-

forceability. Without these elements a new law

would not constitute any improvement on the old:

We would not bring a conference agreement to the

floor without them.’’ Legislative History at p.

162.”

12 All citations to the legislative history are to ‘‘A Legislative

History of the Water Pollution Control] Act Amendments of 1972,’’

prepared by the Environmental Policy Division of the Congres-

sional Research Service of the Library of Congress (Committee

Print 1973).

Thus, at the outset Congress recognized that the

achievement of a ‘‘national’’ goal required the applica-

tion of national, uniform standards of conduct, while at

the same time recognizing the need for a uniform pro-

cedure for the establishment of more stringent stand-

ards when required. Uniformity of approach and ad-

ministration had to be a keystone. Without nationally

mandated uniformity, the parochial interests of the

various states and their branches of government stood

in the way of achieving the national objective. The

legislative history of the 1972 Act makes this clear.

For example, the Conference Report on the 1972 Act

states :

‘*Except as provided in section 301(¢c) [§ 1311

(c)] of this Act, [economic based variance from

1983 standard for industrial point source] the in-

tent of the Conferees is that effluent limitations

applicable to individual point sources within a

given category or class be as uniform as possible.

The Administrator is expected t6 be precise in his

guidelines under subsection (b) of this section, so

as to assure that similiar point sources with similar

characteristics, regardless of their location or the

nature of the water into which the discharge is

made, will meet similar effluent limitations.’’ Leg-

tslative History at 309.

The courts have acknowledged this Congressional

mandate for uniformity. In Natural Resources Defense

Council, Inc. v. Train, 510 F.2d 692, 711 (D.C. Cir.

1975), the court said:

‘*The decentralization of permit issuing author-

ity envisioned by section 402 [§ 1342] prompted

concerns that industrial threats to relocate in areas

where pollution controls were less restrictive would

coerce states into adopting lax permit require-

ments. The effluent limitation guidelines contained

in section 304(b) [§ 1314(b)] and the correspond-

ing effluent limitations to be promulgated under

section 301(b) [§ 1311(c)] were intended to safe-

guard against industrial pressures by establishing

a uniform ‘minimal level of control imposed on all

sources within a category or class.’ Senator Muskie

emphasized the function of the guidelines in pro-

moting uniformity. He states that ‘[t]he Admin-

istrator is expected to be precise in his guidelines

so as to assure that similar point sources with

similar characteristics, regardless of their location

or the nature of the water into which the discharge

is made, will meet similar effluent limitations.’ ”’

The Court of Appeals for the District of Columbia re-

iterated this concept in Natural Resources Defense

Council, Inc. v. Costle, 568 F.2d 1369, 1978 (D.C. Cir.

1977) :

‘**As noted in NRDC v. Train, the primary pur-

pose of the effluent limitations and guidelines was

to provide uniformity among the federal and state

jurisdictions enforcing the NPDES program and

prevent the ‘Tragedy of the Commons’” that

might result if jurisdictions can compete for in-

dustry and development by providing more liberal

limitations than their neighboring states. 510 F.2d

at 709.”’

%*The court explained this term in footnote 19 of its opinion,

568 F.2d at 1378:

‘*The classic account of the Tragedy of the Commons can

be found in Hardin, The Tragedy of the Commons, 162 Sci-

ence 1243 (1968). Hardin makes the point in the context of

sheepgrazing. Put simply, even over-simply, Hardin shows that

if no one is authorized to set limits to preserve open pasture

land as a whole, allowing sheep to graze on that land may

lead to serious overgrazing, as each herdsman thinks only of

his own advantage. The solution lies in some mandate, froin

above or by agreement, with sanctions to compel conform-

ance.’’

The result is the same whether the disparity is achieved

by adopting liberal limitations in one’s own state or by

seeking to impose unrealistically strict limitations on a

neighboring state.

Even the trial court in the present case, while en-

forcing different standards on different defendants de-

pending on whether they settled or tried the case, in-

cluding providing that the requirements imposed on

the settling defendants were made dependent on fed-

eral funding, purported to recognize the need for

uniformity :

‘‘We cannot have one law for Milwaukee and

another law for Waukegan, the North Shore Sani-

tary District, Gary and Muskegon. The law must

be uniform, especially since we are dealing with the

federal common law of nuisance, which the United

States Supreme Court has said is peculiarly adapt-

able for use in the solution of interstate water

problems.’’ (Pet. App. F-21).

See also: HE. I. duPont de Nemours & Co. v. Train, 430

U.S. 112, 138 (1977).

The uniformity envisioned by the Act is achieved

through delegation of specific decision-making to an

expert administrative agency. Decisions involving con-

trol of water pollution require unique expertise, scien-

tific knowledge and resources. Many courts have ac-

knowledged that the EPA has this ‘‘unique experience

and expertise” E.g., American Meat Institute v. EPA,

526 F.2d 442, 450 n.16 (7th Cir. 1975). The trial court in

the present case forthrightly acknowledged that it did

not possess such experience and expertise, ard noted

the difficulty of making the required decisions without

it:

‘*The nature of the subject matter here, however,

is such that my own experience and observation in

life are relatively little use to me, It is well known

to all of us that the arcane subject matter of some

of the expert testimony in this case was sometimes

over the heads of all of us to one height or another.

I would be certainly less than candid if I did not

acknowledge that my grasp of some of the testi-

mony was less complete than I would like it to be,

but short of eels in a university course di-

rected toward a reorientation of my entire educa-

tion and spending the years that that would in-

volve, | know of no remedy for the problem,’’ (Pet.

App. F-3 and 4.)

Congress envisioned the difficulty that courts would

experience if presented with the necessity of making

specific decisions implementing national policy in an

area of specialized scientific knowledge. Thus, the Sen-

ate Report comments on Sec. 505 of the 1972 Act

(§ 1365) (authorizing citizens’ suits) as follows: ™

“Section 505 would not substitute a ‘common

law’ or court developed definition of water qual-

ity. An alleged violation of an effluent control fimi-

tation or standard, would not require reanalysis

of technological in [sic] other considerations at the

enforcement stage. These matters will have been

settled in the administrative procedure leading to

the establishment of such effluent control provi-

sion.’’ Legislative History at 1497 (emphasis

added).

As Milwaukee argued to the Court of Appeals, while

the District Court knew ‘‘of no remedy for the prob-

lem’’ (of the courts’, and particularly the District

Court’s, inadequate technical experience and knowl-

* The Conference Committee, comprised of Senate and House

members, adopted Section 505 of 8.2770 with minor revisions not

relevant here.

edge), Congress obviously did. As Milwaukee said be-

low, the District Court failed to defer to the expert ad-

ministrative agency in the type of situation where this

Court has, and the District Court should have, applied

the doctrine of primary jurisdiction:

“TT ]n cases raising issues of fact not within the

conventional experience of judges or cases requir-

ing the exercise of administrative discretion, agen-

cies created by Congress for regulating the subject

matter should not be passed over... . Uniformity

and consistency in the regulation of business en-

trusted to a particular agency are secured, and the

limited functions of review by the judiciary are

more rationally exercised, by preliminary resort

for ascertaining and interpreting the circumstances

underlying legal issues to agencies that are better

equipped than courts by specialization, by insight

gained through experience, and by more flexible

procedure.

It is significant that this mode of accommodat-

ing the complementary roles of courts and admin-

istrative agencies in the enforcement of law was

originally applied in a situation where the face of

the statute gave the Interstate Commerce Commis-

sion and the courts concurrent jurisdiction.”’ Far

Kast Conference v. United States, 342 U.S. 570,

574-575 (1952).

“In every case the question is whether the rea-

sons for the existence of the [primary jurisdic-

tion] doctrine are present and whether the pur-

poses it services will be aided by its application in

the particular litigation. These reasons and pur-

poses have often been given expression by this

court. In the earlier cases emphasis was laid on

the desirable uniformity which would obtain if

initially a specialized agency passed on certain

types of administrative questions. See Texas &

-acific R. Co. v. Abilene Cotton Oil Co., 204 U.S.

426, 51 L.Ed. 553, 27 S.Ct. 350, 9 Ann, Cas, 1075,

More recently the expert and specialized knowl-

edge of the agencies involved has been particularly

stressed. See Kar Hast Conference v. United States,

342 U.S. 570, 96 L.Ed, 576, 72 S.Ct. 492. The two

factors are part of the same principle, ‘now firmly

established, that in cases raising issues of fact not

within the conventional experience of judges or

cases requiring the exercise of administrative dis-

cretion, agencies created by Congress for regulat-

ing the subject matter should not be passed over,

This is so even though the facts after they have

been appraised by specialized competence serve as

a premise for legal consequences to be judicially

defined. Uniformity and consistency in the regu-

lation of business entrusted to a particular agency

are secured, and the limited functions of review

by the judiciary are more rationally exercised, by

preliminary resort for ascertaining and interpret-

ing the circumstances underlying legal issues to

agencies that are better equipped than courts by

specialization, by insight gained through experi-

ence, and by more flexible procedure.’ Jd. 342

U.S. at 574, 575.”’ United States v. Western R. R.

Co., 352 U.S. 59, 64-65 (1956).”°

(2) Congress Gavo Finality to the Administrative Uniformity

It Chose.

The second essential element of the 1972 Act, as stated

by Senator Muskie, is ‘‘finality.’’ Finality is achieved

by the interaction of two concepts.

Note that here Illinois had the right to proceed administra-

tively to seek the same relief it sought in court, a factor which

the dissent thought important in Ricci v. Chicago Mercantile Ex-

change, 409 U.S. 289, 309-319 1973), a case in which the doctrine

of primary jurisdiction was applied by the Court even though such

rights were arguably not present.

The first concept resulting in finality is that EPA

action is final. EPA action becomes final and incontest-

able unless review is sought within 90 days in a Cireuit

Court of Appeals and, if reviewed, becomes final upon

completion of review. Section 509(b)(2) (§ 1869(b)

(2)) of FWPCA provides:

‘*Action of the Administrator with respect to

which review could have been obtained under para-

graph (1) of this subsection [appeal to Circuit

Court of Appeals within 90 days] shall not be sub-

jeet to judicial review in any civil or criminal pro-

ceeding for enforcement.’’

The second concept to achieve finality is embodied in

See. 402(k) (§ 1842(k)) which establishes that compli-

ance with a permit shall be deemed compliance with the

Act. Section 402(k) (§ 1342(k)) provides:

‘Compliance with a permit issued pursuant to

this section shall be deemed compliance for pur-

poses of sections 309 and 505 [§§ 1319, 1365], with

sections 301, 302, 306, 307, and 403 §§ isiL "1312,

1316 and 1343], except any standar Beant un-

der section 307 for a toxic pollutant injurious to

human health. .. .”

In EF. I. duPont de Nemours & Co. v. Train, 430 U.S.

112, 138 n.28, (1977), the Supreme Court said:

“The purpose of [Sec.]402(k) is 1342(k) ]

seems to be to insulate permit holders from

changes in various regulations during the period

of a permit and to relieve them of having to litigate

in an enforcement action the question whether

their permits are sufficiently strict. Jn short, [ 2

402(k) serves the tm as of giving permits fi

ity.’’ (emphasis adde

(3) The Finality Enacted by Congress Is Essential to

Timely Attainment of Pollution Control.

These two concepts result in the “‘finality’’ sought

by Congress. They provide the assurances that are nec-

essary to cause dischargers to spend the billions of

federal, local and private dollars required to control

water pollution. Without such finality no discharger

can be sure what the applicable standard will be. Only

an administratively established standard can tell the

discharger the precise level of control to be achieved.

Practical and economic reality dictates that dischargers

will not spend the substantial sums required until the

precise levels that must be achieved are fixed and final.

If a discharger remains subject to suit under the /llt-

nois Vv. Milwaukee decision as applied by the District

Court, all that is known is that the result is subject to

‘no fixed rules’’ and the ‘‘informed judgment of the

chancellor,” Illinois v. Milwaukee, supra, at 107-108

(Pet. App. I-16 and 17). This is hardly the stuff from

which finality arises. See Zener, ‘‘The Federal Law of

Water Pollution Control,’’ Federal Environmental

Law, 787-790 (FE. Dolgin and T. Guilbert, ed. 1974)

(chapter authored by Robert Zener, former General

Counsel of the EPA).

(4) The Administrative Uniformity Is Universally Enforceable

by All Interested Parties at All Stages.

Senator Muskie’s characterization of the third essen-

tial element of the 1972 Act is “enforceability.” A re-

view of the statute quickly discloses that the enforce-

ment provisions are not only pervasive, they are pur-

posely designed to encourage the participation of all

interested persons—governmental bodies and citizens

alike—in the overall process, from establishment of

standards, to granting of permits, to assuring compli-

ance. 3

The EPA’s enforcement authority is set forth in

See. 309 (§1319) of the Act and includes provisions

for civil and criminal proceedings. Section 505 (§ 13865)

provides for eitizen suits, with the respective states

acting on behalf of their citizens, and empowers state

governors to enforce the Act. The states are also given

express authority to challenge the action of the EPA

in promulgating any effluent standards, limitations or

regulations by appeal to the federal Courts of Appeals,

See. 509 ($1369), and to participate in the permit

proceedings, Sec. 402 (§ 1342). This participation in-

cludes the right to receive notice of the proceedings,

the right to appear and be heard, the right to apply to

the Administrator to exercise his discretion to veto the

issuance of any permit, and finally the right to judi-

cially challenge the issuance of any permit.

C. The Federal Statute Controls the Former Federal Common Law.

The Supreme Court has recognized that federal legis-

lation on the subject of interstate waters establishes the

federal law in place of previously applicable federal

common law principles. Arizona v. California, 373 U.S.

546 (1963), cited by Jllinois v. Milwaukee, supra at

106 (Pet. App. I-15). The Arizona ease dealt with the

allocation of water in the Colorado River between the

various states that border that river. Congress had

passed a statute providing a method and formula for

the allocation of those waters. The State of California

argued that apportionment of the water in the Colo-

rado River should be controlled by the common law

doctrine of equitable apportionment, which the Su-

preme Court had applied in earlier cases between vari-

ous States of the Union. The Supreme Court rejected

the State of California’s argument, noting that a fed-

eral statute was involved, and said:

‘“*Tt is true that the Court has used the doctrine of

equitable apportionment to decide river contro-

versies between states. But in those cases Congress

had not made any statutory apportionment. In

this ease, we have decided that Congress has pro-

vided its own method for allocating among the

lower Basin states the mainstream water to which

they are entitled under the Compact. Where Con-

gress has so exercised its constitutional power over

waters, courts have no power to substitute their

own notions of an ‘equitable apportionment’ for

the apportionment chosen by Congress.’’ 373 U.S.

at 565 (emphasis added).

Once Congress acts to provide uniform federal rules

and meaningful remedies, the manner in which the

basic interests of the nation are to be attained is de-

fined. The federal courts thereafter should be limited

to carrying out the congressional mandate; if they re-

tain any ‘‘common law” jurisdiction at all the exercise

of that jurisdiction should be limited to the cost-effec-

tive control of point source discharges legislated by

Congress, just as the common law jurisdiction in ap-

portionment cases became jurisdiction to carry out the

congressionally mandated apportionment. With the de-

finitive legislative action of Congress, the sole branch

of government in which all states are represented, the

federal common law does not remain subject to ‘‘no

fixed rules” and the ‘informed judgment of the chan-

eellor,’’ Illinois v. Milwaukee, supra at 107-108 (Pet.

App. 1-16 and 17). ‘‘Catch as catch ecan’’ rules estab-

lished on a case-by-case basis by federal courts are no

longer necessary or tolerable. The basic interests of

federalism demand that independent judicial ap-

proaches to a ‘‘federal common law’’ must give way.

D. The Control of FWPCA Has Been Recognized by Other Courts

and Legal Scholars.

The rationale for the conclusion that the federal

statute controls the federal common law is aptly stated

as follows in Stewart, Pyramids of Sacrifice? Problems

of Federalism in Mandating State Implementation of

National Environmental Policy, 86 Yale L.J. 1196,

1228-1230 (1977) :

‘‘Congressional control of interstate spillovers is

supported by a final consideration: the inherent

power of Congress to take measures reasonably

necessary for preserving the system of union. Spill-

overs have and will continue to create tensions

among the states. As economic development pro-

ceeds and populations grow, interstate pollution

will increase, and with it the potential for retalia-

tory tactics and litigation. Congressional power to

mitigate these tensions through preventive legisla-

tion is implicit in the very decision to replace a

loose confederation hamstrung by interstate fric-

tion with a strong national government.

* * *

Because of political and administrative con-

straints, Congress must often deal with spillover

problems in a generic fashion. A case-by-case ju-

dicial determination of whether federal statutory

impositions on states were warranted in particular

instances would, in effect, make the judge-made

common l.w of interstate pollution superior to

congressional statute.’’

In Zener, ‘‘The Federal Law of Water Pollution

Control,’’ in Federal Environmental Law, supra, the

former General Counsel of the EPA states at page

790:

“Finally, whatever limited importance the federal

common law might have as a tool for the regulation

of water pollution will tend to recede as the

FWPCA Amendments of 1972 are implemented

and detailed, numerical standards are established

for the major categories of waste dischargers. In

Illinois v. Milwaukee, the Court stated that

‘{w]hile the various federal environmental pro-

tection statutes will not necessarily mark the outer

bounds of the federal common law, they may pro-

vide useful guidelines in fashioning such rules of

decision.’ This formulation was obviously intended

to give the Court some leeway in deciding whether

to follow the rules contained in the FW PCA. How-

ever, since the decision, the 1972 Amendments have

established a much more comprehensive regulatory

scheme than had previously existed. If, under that

scheme a discharger is governed by an administra-

tively established effluent limitation embodied in a

federal permit, it seems doubtful that a federal

court would intervene under the auspices of fed-

eral common law to impose a different standard on

the discharger.” **

16 The author’s footnote at this point states:

‘*Indeed, such intervention might be precluded by § 509(b) (2)

of the FWPCA, 33 U.S.C. § 1369(b)(2) which provides:

‘Action of the Administrator with respect te which review

could have been obtained under paragraph (1) of this sub-

section [this includes the issuance of a discharge permit] shall

not be subject to judicial review in any civil or criminal pro-

ceeding for enforcement.’

It should also be noted that § 401 of the FWPCA, 33 U.S.C.A.

§ 1341, establishes an administrative mechanism for resolution of

interstate pollution disputes, under which a state may object to

the issuance of a federal permit for a discharge in another state

that affects the waters of the objecting state.’’

Similarly, Professor Grad in Treatise on Environmen-

tal Law (Matthew Bender, 1979), which followed the

passage of the 1972 Act, makes the following state-

ment regarding the status of the federal common law

of nuisance in light of that statute:

‘““The development of a federal common law of

public nuisance—limited, hopefully, to actions be-

tween states—was probably a response to the in-

adequacies of past federal regulatory enactments

in the air and water pollution control field. The

law of nuisance has been far from clear in its

application to modern water pollution and air pol-

lution situations. It is in response to the inade-

quacies and lack of standards of the law of nui-

sance that much environmental regulatory legisla-

tion has been developed. The development of a

federal common law of nuisance seems both un-

necessary and unwarranted in the light of recent

federal standards and federal enforcement sanc-

tions provided under appropriate legislation. It

may be useful to point out that the assertion of a

federal law of nuisance in the Illinois v. City of

Milwaukee case is clearly dictum. It is to be hoped

that this peculiar and unnecessary departure from

legislatively determined standards in the field will

not see any further development. Indeed, perhaps

the time has already come that federal regulations

‘pre-empt the field of federal common law of nui-

sance,’ as predicted by Mr. Justice Douglas.’’

Grad, supra at § 3.03, Vol. I, p. 3-180.

As Milwaukee argued below, this is not a case involv-

ing the issue of federal preemption of state law. Here,

we deal with ‘“‘preemption’’ in the context of federal

statutory law enacted by the national representative

legislative body having acknowledged supremacy, bend-

ing the federal courts which apply federal law.

Thus, it is really a question of semantics whether one

refers to the federal common law of nuisance being

controlled by the statutory and regulatory body of law,

or whether one states that the federal common law of

nuisance has been ‘‘preempted”’ by federal legislation.

Where one deals with a single sovereign, the federal

governing entity, what is relevant is the completeness

and controlling character of the statutory and regula-

otry body of law.

By the passage of FWPCA, Congress has provided

a statutory method for controlling water pollution

which includes: (1) a comprehensive legislative frame-

work establishing a uniform, nationwide system for

the determination of effluent standards and limitations;

(2) delegation of authority to establish the specific and

detailed standards to an administrative agency having

the knowledge, experience and resources to carry out

the legislative objectives; and (3) creation of a system,

in cooperation with the various states, to enforce the

standards and limitations by means of a permit sys-

tem, including an opportunity for all interested per-

sons to participate in the establishment of the stand-

ards and limitations, followed by the granting of the

permits and subsequent enforcement of restrictions im-

posed upon the permittees by the statute, the regula-

tions and the permits themselves, with several points

at which judicial review is available. In the face of this

legislative scheme, the various federal courts should

have no power to substitute for the federal law enacted

by Congress their own respective notions of the fed-

eral law of interstate water pollution on an ad hoc,

case-by-case basis.

This same rationale was expressed by the Court of

Appeals for the Fourth Circuit in Committee for the

Consideration of the Jones Falls Sewage System v.

Train, 539 F.2d 1006 (4th Cir. 1976). That court said:

‘““To the extent there is a federal interest, it is

expressed in the Federal Water Pollution Con-

trol Act Amendments of 1972, but the plaintiffs

have no claim based upon the statute.

Indeed it would be an anomaly to hold that there

was a body of federal common law which proscribes

conduct which the 1972 Act of Congress legiti-

mates. The defendants are in compliance with the

statute. They are operating under a permit issued

in accordance with the statute and the authoriza-

tion of the Environmental Protection Agency. The

Congress and the Executive Department, acting

through the Environmental Protection Agency,

have declared their conduct lawful until the time

for the application of more restrictive standards.

While the state courts are free to apply state nui-

sance law more rigidly, a federal court in such a

local controversy may not turn to a supposed bod

of federal common law to impose stricter stand-

ards than the statute provides.’’ 539 F.2d at 1009

(emphasis added).

This same analysis was adopted in New England

Legal Foundation v. Costle, 475 F.Supp. 425 (D.C.

Conn. 1979). There Circuit Judge Newman, United

States Court of Appeals for the Second Circuit, sitting

by designation, dismissed a claim alleging a federal

common law nuisance for failure to state a claim upon

which relief can be granted. The claim alleged that the

defendant maintained a federal common law nuisance

by burning oil containing sulfur in excess of limitations

established for sulfur content under the federal Clean

Air Act and by the State of Connecticut. The court

noted, however, that the defendant’s action was au-

thorized by a variance approved in accordance with

the federal statute. The court held:

‘‘This Court will not devise an equitable remedy

to proscribe the very conduct that the EPA, act-

ing in its regulatory capacity pursuant to statu-

tory mandate, has specifically legitimated. While it

is conceivable that the Connecticut state courts

may apply state nuisance law more rigidly, this

Court will not ‘turn to a supposed body of federal

common law to impose stricter standards than

the statute provides.’ Committee for Jones Falls

Sewage System v. Train, 539 F.2d 1006, 1009 (4th

Cir. 1976).’’ 475 F.Supp. at 441-442.

The court reasoned that since the purpose of the equi-

table relief sought under the federal common law was

to vitiate the effect of the EPA’s determination to

permit the activity which created the alleged nuisance,

and since the federal Clean Air Act provided a specific

statutory remedy to challenge this action of the EPA,

the court would not create a common law remedy to

accomplish what a successful proceeding under the

statute would achieve. The court said:

‘‘The relief sought by plaintiffs’ action would have

a substantial impact upon the implementation of

a specifie agency determination. Plaintiffs’ claim

against LILCO’s conduct as a federal common law

nuisance is, in effect, an attack upon the validity

of the EPA-approved variance. It is mere sophis-

try to argue that a challenge to LILCO’s operation

in compliance with the special limitation is not a

challenge to the legality of the limitation itself. ...

* * *

Since the ultimate purpose of any equitable relief

against LILCO is to vitiate the effect of the spe-

cial limitation, this Court will not create a com-

mon law remedy to accomplish that which a suc-

cessful § 7426 petition would achieve.’’ 475 F.Supp.

at 441 n.21."

This same reasoning is applicable in this case. The

remedy imposed by the courts below vitiates the per-

mits issued to Milwaukee under FWPCA. Since

FWPCA provides specific remedies to the complaining

states which, if successful, could achieve the desired

result, the federal courts should not provide federal

common law injunctive remedies when adequate fed-

eral statutory remedies are available.”

The operative language of FWPCA supports this

position. To cause the expeditious and efficient expen-

diture of the billions of federal, state, local and private

dollars required to abate water pollution, dischargers

must be assured as to what the applicable standards

are. Practical and economic reality dictates that dis-

chargers required to expend huge sums of public funds

know that the applicable standards are fixed and final.

See discussion supra at 43-45.

If a discharger remains subject to suit under the

‘federal common law’”’ as applied by the courts below,

and subject to an ad hoc remedy determination by a

federal court without respect to the standards under

the federal statutory law, it would ill behoove any mu-

nicipality or other governmental agency to move for-

ward in an expeditious manner. Rather, it would place

7 On May 20, 1980, in an as yet unpublished opinion, the U.S.

Court of Appeals for the Second Cireuit decided the appeal in

New England Legal Foundation v. Costle, supra. With respect to

the trial court’s dismissal of the federal common law claim against

LILCO, the Court of Appeals reversed decision pending this

Court’s determination of this case, retaining jurisdiction to deal

with this issue on the basis of supplemental briefs if necessary.

18 See, e.g., Reisman v. Caplin, 375 U.S. 440 (1964).

HH)

a premium on delay, so as to permit all forums having

possible jurisdiction to speak and thus prevent false

starts in these monumentally expensive public projects

with attendant waste of public funds.

E. Congress Provided That Compliance With Permits Issued

Under the Congressionally Established Administrative Pro-

cedures Is Compliance With Federal Law.

Section 505 (§ 1365) is the provision of the Act

providing for citizen suits. Subsection (e) thereof

states :

‘*(e) nothing in this section shall restrict any right

which any person (or class of persons) may have

under any statute or common law to seek enforce-

ment of any effluent standard or limitation or seek

any other relief (including relief agaist the Ad-

ministrator of a State agency).’’

Since compliance with a permit is specifically defined

by Sec. 402(k) (§ 1342(k)) as compliance with Sec.

505 (§ 1365), and since common law actions are pro-

vided for in See. 505, it follows that the standards and

limitations under Secs. 301, 302, 306, 307, and 403

($$ 1311, 1312, 1316, 1317 and 1343) are the discharge

limitations to which a discharger may be held under

common law or in the federal statutory scheme.” Thus,

the language of the 1972 Act requires the conclusion

1 Section 301 (§ 1311) sets forth certain effluent limitations

and gives the Administrator of the EPA authority to define addi-

tional effluent limitations. Section 302 (§ 1312) authorizes the Ad-

ministrator to establish stricter limitations than are found in

Section 301. Section 306 (§ 1316) authorizes the Administrator to

set national standards of performance. Section 307 (§ 1317) au-

thorizes the Administrator to establish toxic and pretreatment

effluent standards. Section 403 (§ 1343) concerns ocean discharge

criteria.

that the federal common law of interstate water pol-

lution is governed by permit limitations in those in-

stances in which the harm complained of is the subject

of a permit issued pursuant to the Act.

F. The Decisions Below Are an Attempt to Raise Federal

Common Law Above the Paramount Federa! Statutes.

In the face of the congressional enactments, the de-

cisions below are a judicial foray into the political field

of resource allocation in environmental management

of the nation’s interstate water resources requiring

expenditures of municipal, state and federal funds of

staggering magnitude. One of the basic characteristics

of the congressional mandate in FW PCA is that costs

and the availability of federal funds to localities and

states providing interstate water protection are im-

portant factors in pollution control determinations.

Nevertheless, costs and the availability of federal funds

were not only ignored below, they were expressly de-

elared by the District Court to be of no interest to the

decisional rationale.

The decisions below considered federal legislation

as a parallel course for dealing with water pollution

which was of passing, but not controlling, interest to

the totally independent approach by the courts under

the federal common law. This approach failed to ac-

cord any weight to the congressional provision for par-

ticipation of affected municipalities and states in an

expert administrative forum, while expressing the trier

of fact’s own lack of expertise in the area. In this set-

ting, both the District Court and the Court of Appeals

held the ‘‘federal common law’’ to be wholly distinct

from, and independent of, the federal statutory scheme

for controlling the identical subject matter, namely

point source discharges to the nation’s waters.”

20 Various lower federal courts have considered the effect of the

enactment of the 1972 Act and the 1977 Act on this Court’s opinion

in Illinois v. Milwaukee, supra at 107 (Pet. App. I-16). In certain

instances the courts have found it unnecessary to deal with the ©

issue: Reserve Mining Co. v. Environmental Protection Agency,

514 F.2d 492, 532 (8th Cir. 1975) [‘‘[ W]e deem it unnecessary

and, indeed, unwise to also rely on federal nuisance law.’’| ; Town-

ship of Long Beach v. City of New York, 445 F.Supp. 1203, 1215

(D.N.J. 1978), [‘‘I will therefore deny the motion to dismiss

based on preemption without prejudice to a renewal thereof after

further clarification of the nature of this suit, the new regulations

and their effect on the preemption issue’’] ; Stream Pollution Con-

trol Bd. v. United States Steel Corp., 512 F.2d 1036 (7th Cir.

1975) [unnecessary to decide]. In other instances the courts have

concluded that the Acts control, at least with respect to federal

common law nuisance claims challenging activities expressly per-

mitted by the federal statutory scheme: Committee for the Con-

sideration of the Jones Falls Sewage System v. Train, 539 F.2d

1006, 1009 (4th Cir. 1976) |‘‘|I]t would be an anomaly to hold

that there was a body of federal common law which proscribes

conduct which the 1972 Act of Congress legitimates’’]; cf., New

England Legal Foundation v. Costle, 475 F.Supp. 425, 441-442

(D.C. Conn. 1979) aff’d in part, held in abeyance in part, ——

F.2d (2d Cir. May 20, 1980) [in context of Clean Air Act,

42 U.S.C. § 7401 et seq., court may not ‘‘turn to a supposed body

of federal common law to impose stricter standards than the stat-

ute provides,’’ relying on Committee for the Consideration of the

Jones Falls Sewage System, supra]. Other cases preceeded promul-

gation of the EPA’s regulations under the 1972 Act: United States

v. United States Steel Corp., 356 F.Supp. 556 (N.D. Ill. 1973)

[‘‘At least until the Environmental Protection Agency has acted

effectively, the hands of the plaintiff governments are not tied.’’] ;

United States v. Ira S. Bushey & Sons, Inc., 363 F.Supp. 110, 119-

120 (D. Vt. 1973), aff’d. mem. 487 F.2d 1393 (2d Cir. 1973), cert.

denied, 417 U.S. 976 (1973) |prior to regulations]; IJllinots v.

Milwaukee, 366 F.Supp. 298, 299-300 (N.D. Til. 1973) [prior to

regulations]. Still other cases have determined to various degrees

that the 1972 and 1977 Acts and federal regulations do not affect

the federal common law of nuisance: California Tahoe Regional

Planning Agency v. Jennings, 594 F.2d 181, 193 (9th Cir. 1979),

G. The Courts Below Ignored the National Character and Massive

Fiscal Impact of the Problem Considered.

The courts below failed to recognize and deal with

the pervasive character of the problem. The issues in-

volved in this case are not merely directed to the reso-

lution of an isolated situation in Milwaukee. They

present a problem to this nation as a whole, a subject

most recently addressed in a GAO report, Report by

the Comptroller General of the United States: Large

Construction Projects to Correct Combined Sewer

Overflows Are Too Costly, CED-80-40 (December 28,

1979). There are approximately 1,300 communities in

the United States, including most of the major cities,

which have a total combined sewer area of 214 million

acres, and serve a total of 38 million persons. In fact,

58 major cities such as Chicago, Detroit, New York,

Cleveland, Pittsburgh, Philadelphia, San Francisco

and Washington, D.C., located in 24 states, have eighty-

three percent of the combined sewer area and eighty-

one percent of that resident population. EPA, Report

to Congress on Control of Combined Sewer Overflow

in the United States, MCD Rpt. No. 50 (EPA’s report

pursuant to See. 516(¢c) of FWPCA, Oct. 1, 1978).

With respect to funding combined sewer overflow

projects, after estimating national costs at $21.16 bil-

lion (1978 dollars) for controlling combined sewer

overflows so as to permit two untreated overflow events

cert. denied, U.S. —— (No. 79-15, Oct. 1, 1979) [dismissed

for failure to state a claim, but stated federal common law claim

not affected]; United States v. Stocco Homes, Inc., 498 F.2d 597,

611 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975) [dicta, no

preemption | ; National Sea Clammers Assoc. v. City of New York,

F.2d , Slip opinion at Part IV, (3d Cir. Feb. 5, 1980)

[no effect, relying on Court of Appeals decision in Illinois v. Mil-

waukee, supra}.

per year rather than totally eliminating them,” the

EPA’s October 1, 1978 report to Congress states:

‘‘It must be remembered that any increase in

spending for combined sewer overflow control

needs .. . will result in a decrease in spending for

all other pollution control needs . .. These trade

offs must be weighted carefully for any given mu-

nicipality.”” EPA, Report to Congress on Control

of Combined Sewer Overflow in the United States,

supra at ES-9-10.

Illustrative of the technical considerations and their

impact on costs to the public is a passage from EPA,

Nationwide Evaluation of Combined Sewer Overflows

and Urban Storm Water Discharges. EPA-600/2-77-

064a (Sept., 1977) at 3:

‘‘Analysis indicated that control of [overflows

from combined sewer at the level of] the one hour,

one month storm would permit capture of 90 per-

cent of the precipitation volume. Sizing for the two

year, one hour storm yields relatively little incre-

mental control and requires a much higher [cost

and] control volume.”’

A more specific example of the fiscal impact of deal-

ing with combined sewer overflows and one which has

direct application to this litigation is provided by a

recent GAO report, Report by the Comptroller Gen-

eral of the United States: Combined Sewer Flooding

and Pollution—a National Problem. The Search for

Solutions in Chicago, CED-79-77 (May 15, 1979). The

report considered whether a Tunnel and Reservoir Plan

21 See, EPA, 1978 Needs Survey: Cost Methodology for Control

of Combined Sewer Overflows and Stormwater Discharge, EPA

Rpt. No. 43019-79-003 (EPA’s report to Congress pursuant to

See. 516(b) of FWPCA, Feb. 10, 1979).

(“TARP”’) is a cost-effective solution to Chicago’s

combined sewer overflows. The TARP plan is similar

to the ‘‘convey, store and treat’’ solution ordered by

the court below to solve the combined sewer overflow

problems in the Milwaukee area except, as noted in

the report, TARP is not intended to eliminate over-

flows; it is merely meant to control them. Id. at Vol. 1,

pp. 4-5.

According to the GAO, TARP is ‘‘one of the larg-

est” public works projects in the nation.

“(I]ts projected costs will probably exceed the

$9.2 billion expended for the Alaskan pipeline.”

GAO, Report by the Comptroller General of the

United States, supra at Vol. 1, p. 1.

* * *

‘*Determining the precise cost for TARP and the

associated projects is difficult. However, it will be

expensive—$4 billion to $8 billion (December 1977

estimates) depending on what estimates are used

and which associated projects are included in the

total. If history is any indication, costs will con-

tinue to escalate and could exceed $11 billion by

1983.’’ Id. at Vol. 1, p. 4.

In summary, the GAO report says that when TARP

is judged by what it will cost, the taxpayers ‘‘must stop

and think.’’

“In February 1979, EPA estimated that it would

take more than $25 billion just to solve the pollu-

tion problems of combined sewer communities. If

the cost of solving flooding problems associated

with combined sewers is included, it could ulti-

mately run more than $100 billion. Thus, the time

may have come to reexamine the project.’’ Id. at

Vol. 1, pp. 34-37.

It is in this setting, where the technical problems are

_ only beginning to be known, where means to control the

problem have monumental fiscal implications, and

where major segments of the country and vast numbers

of its population are affected, that the courts below

have acted. With respect to the evidence relating to

Milwaukee’s plans to control combined sewer over-

flow on cost-effective bases consistent with federal stat-

utory and administrative regulations (P.Ex. 23-30, Tr.

124, 388, 395, 396), the District Court said:

‘* T read much of the material in the Combined

Sewer Overflow study [of Milwaukee] and I find

in it no express commitment to the elimination of

the overflows. What I find is reference to ‘control’

of the overflows and ‘reduction’ of overflows. It is

not altogether clear to me that the Combined Sewer

study starts with the proposition that the over-

flows must be eliminated.

I can save a lot of time, and I am going to save a

lot of time in the event any further study of that

issue is contemplated, because it will be and it is

the ruling of this court that all overflows shall be

eliminated.” Pet. App. F-25.

With respect to costs, the District Court blandly

stated :

‘‘This brings us to the matter of cost, as to which

there has been considerable controversy in this

ease. I think we should break it down into two

things, because it is easy to get carried away by

the huge numbers that have been bruited about. In

my view, the cost of eliminating the overflows is

not really a factor here.” Pet. y P-28.

Thus, the District Court ordered the total elimina-

tion of overflows, ordered that the cost of accomplish-

ing this objective was not a factor, and ordered the

parties to submit timetables to carry out the remedy

so imposed on Milwaukee. The Court of Appeals af-

firmed, but with the comment that:

“TT ]he defendants do not provide us with evi-

dence sufficient to justify disagreement with what

the court found necessary or evidence sufficient to

show that the marginal increase in cost of building

a facility of the size required by the district court

is significantly greater than the cost of building a

facility of the size presumably contemplated by

defendants.’’ 599 F.2d at 173 (Pet. App. A-39).

Milwaukee is faced with compliance with a costly

judgment of the District Court which determined costs

were not a factor; a judgment affirmed by a Court of

Appeals on the basis of Milwaukee’s failure to provide

it with the very same evidence which the District Court

gave Milwaukee no opportunity to present! That evi-

dence has now been refined, and shows costs of approxi-

mately $300,000,000 to comply with the requirement of

eliminating sewer overflows, over and above amounts

required under the congressional permit system for

CSO control.”

When one considers that the numbers involved in

this case amount to literally hundreds of millions of

dollars for Milwaukee alone, and to tens of billions of

dollars for the nation as a whole, the conduct of the

trial court in denying the relevancy of costs and cost

effectiveness, and preventing full proof thereof, fol-

22 In accordance with paragraph 8 of the District Court’s Judg-

ment Order, defendants have made extensive engineering studies

(ineluding Pilot Plant operations) which have refined these costs

(Pet. App. D-8). The studies have all been monitored by Illinois

engineers at Milwaukee’s cost in accordance with paragraph 4 of

the Judgment Order (Pet. App. D-6).

lowed by an appellate decision predicated on a lack of

evidence of costs, cannot be permitted to stand.

The -ad hoc approach of the courts below, unless

reversed, will establish a precedent creating untold

harm to the uniform, fiscally responsible approach

adopted by Congress in FWPCA and administered by

the EPA. In mandating the total elimination of all

overflows without respect to cost, the availability of

federal funds, or the availability of practicable meas-

ures to control sewer overflows, the courts below have

subjected the rights of individual citizens, municipali-

ties and states throughout the United States to a pre-

cedent having impact upon the entire nation’s water

resources and having fiscal impacts reaching magni-

tudes important even to the total federal budget, let

alone the budgets of affected municipalities and states.

H. Congress Recognized and Dealt With Fiscal Impacts.

In enacting FWPCA, Congress recognized that while

substantial local and state funds would be required to

alleviate detrimental discharges to the nation’s waters,

imposing the full burden of such an undertaking on

individual municipalities would lead to fiscal disaster.

Thus, the congressional enactments clearly contemplate

federal subsidization to a very substantial percentage

of the total cost, usually 75%, and further provide for

delays in capital expenditures in the event federal

funds are not available. In fact, Congress specifically

amended FWPCA in 1977 to provide for extensions

of time where the municipalities’ failures to provide

the mandated controls were caused by the unavail-

ability of federal funds (Sec. 301(i) ($1311(i) of

FWPCA).

With the huge dollar amounts involved in waste-

water treatment, no lengthy analysis is needed to dem-

onstrate that if abatement requirements are imposed

on individual municipalities without consideration of

financial resources, including the availability of federal

funds, and of the relative benefits achieved by the

requirements of enormous expenditures local fiscal

disasters are not only possible but inevitable. Congress

clearly recognized this basic coxsideration.

In contrast, the District Court said:

‘‘The terms of this order are binding upon the de-

fendants whether or not federal financial assist-

ance becomes available. I hope that federal assist-

ance is made available but if it is not, the program

decreed by this order must proceed nonetheless.”’

Pet. App. F-28.

“But I want to disabuse you right now, Mr.

Moerke, and thereby save you some time—that is

why I am saying it now. There is no point in your

preparing a lot of testimony on alternate theories

—if you don’t get federal money, it is going to

take you this much longer, and preparing experts

to say how much longer—because as I said earlier,

on the 29th of July, this order will not be contin-

gent upon your getting federal funding. Mil-

waukee sewage is not a federal problem.” Trans-

cript of September 9, 1977 hearing before the

District Court at 42.

Contrast the Congressional statement of policy in

the Act:

“(I]t is the national policy that Federal financial

assistance be provided to construct publicly owned

waste treatment works. . . .” Sec. 101(a)(4)

(§ 1251(a)(4)).

Congress has balanced political considerations in

providing that federal funding is a significant factor

to be considered in the timing and implemeptation of

wastewater treatment programs and the control of

overflows, recognizing that political and fiscal realities

are necessarily encountered in dealing with problems

connected with the nation’s waters. This is directly

contrary to the position exemplified by the Court of

Appeals comment that ‘‘no one even attempts to justify

such [overflow] discharges as harmless or insignifi-

eant.’’ The justification is in a political balance of

fiscal resource allocation. Both of the courts below

explicitly refused even to consider fiscal impacts or

cost-effectiveness. After stating its conclusion that cost

and the availability of federal funds are irrelevant,

the District Court required that the ‘‘program decreed

by this order must proceed nonetheless . . . Milwaukee

sewage is not a federal problem.’’ (Pet. App. F-28

and transcript of September 9, 1977 hearing before

the District Court at 42). The courts and Congress

could not be further apart.

I. Congress and This Court Require a Balancing of Equities.

But the Courts Below Failed and Refused to Do So.

The congressional approach is termed the ‘‘cost-

effective’’ approach by engineers; it equates in large

part to the doctrine of balancing the equities found in

the courts. As shown above, the courts here have re-

fused to even permit cost evidence on which to con-

sider an equitable balance. In Eccles v. Peoples Bank,

333 U.S. 426 (1948), where a declaratory judgment

was sought, this Court broadly stated :

‘*Tt is always the duty of a court of equity to strike

a proper balance between the needs of the plaintiff

aud the consequences of giving the desired relief.

Hspecially where governmental action is involved,

courts should not intervene unless the need for

equitable relief is clear, not remote or speculative.”’

333 U.S. at 431.

See generally, Annot., 40 A.L.R. 3rd 601 (1971).

With respect to health, the District Court found that

fecal coliform counts on Iilinois’ Lake Michigan

beaches failed to demonstrate any pollution coming

from Milwaukee, and that there is no evidence of any

outbreak of water-related diseases in Illinois. With

respect to eutrophication, the District Court found

that it is impossible to measure accurately any effect

on the lake caused by Milwaukee’s discharges, or to

measure accurately the diminution in the amount of

nutrients in the lake if such discharges were altogether

discontinued. Then it proceeded to formulate a remedy

for a speculated nuisance rather than one established

in the record, and refused to permit evidence necessary

to a balancing of the equities and hardships in formu-

lating the remedy.

The District Court precluded evidence dealing with

practicable means of controlling sewer overflows, short

of complete elimination, and evidence dealing with the

monumental costs of, and the lack of cost-effectiveness

of, complete elimination of sewer overflows (Pet. App.

F-25). The District Court consequently eliminated any

possibility of balancing the equities and hardships in

formulating the terms of the mandatory injunction it

granted. Thus, the District court failed to exercise

informed judgment as required by this Court. Illinois

v. Milwaukee, supra, at 108-109 (Pet. App. I-17 and

18). In affirming the District Court’s order to eliminate

all sewer overflows, the Seventh Circuit relied upon

the very evidence which the District Court precluded.

599 F.2d at 173 (Pet. App. A-39).

Regarding the balancing requirement in the context

of what injunctive relief should be granted, D. Dobbs,

Remedtes (1973) states at 54-55:

‘‘The second stage of remedial analysis is the

shaping of the remedy. Where the plaintiff .

is to recover an injunction, it is the problem of

formulating appropriate terms. For instance, in

a simple nuisance case, the plaintiff may complain

of a factory’s loud operation down the block from:

his residence. If the court decides that this is in-

deed a nuisance, and balances equities and hard-

ships in favor of the plaintiff, there is the task of

providing specific commands in the injunction.

And this, too, requires some balancing.”’

Harrison v. Indiana Auto Shredders Co., 528 F.2d

1107 (7th Cir. 1976), the decision relied upon the

Seventh Circuit for the proposition that an injunction

is appropriate when an imminent danger to health is

involved, 599 F.2d at 166 (Pet. App. A-24), recognized

the necessity of balancing equities and hardships in a

reasonable fashion:

‘‘Of course, where the pollution from a mill or

factory creates hazards that imminently and dan-

gerously affect the public health, the appropriate

relief is a permanent injunction against the con-

tinuation of the polluting activities. It would be

unreasonable to allow a private interest in the

profits and products of a polluting menace to out-

weigh the community’s interest in the health of

its citizens. However, a permanent injunction that

shuts down a mill or factory without consideration

of the extent of the harm that its pollution caused

would be equally unreasonable . . . [R]easonable-

ness is the standard by which the court should

fashion its relief in ordinary nuisance cases, [cite

deleted], and reasonableness is also the appropri-

ate standard for relief from environmental nui-

sance.’’ 528 F.2d at 1122-1122.

In Cappeert v. U.S., 426 U.S. 128 (1976), this Court

applauded the appropriate balancing of equities and

hardships by the District Court in formulating injunc-

tive relief. That case involved the request for injunctive

relief to prevent the drawdown of ground water which

would extinguish a unique species of subterranean fish.

The court stated :

...[A]s the District Court has correctly deter-

mined, the level of the pool may be permitted to

drop to the extent that the drop does not impair

the scientific value of the pool as the natural habi-

tat of the species sought to be preserved. The

District Court thus tatlored its injunction, very

appropriately, to minimal need, curtailing pump-

ing only to the extent necessary to preserve an

adequate water level in Devil’s Hole, thus imple-

menting the stated objectives of the Proclama-

tion.’’ 426 U.S. 141 (emphasis added).

Unlike the court in the Cappaert case, the District

Court herein did not limit its injunction to minimal

need. The District Court acted unreasonably in pre-

cluding evidence on remedial steps less stringent than

total elimination of overflows (which would eliminate

the vast majority of the pollution), and in refusing

evidence of the costs and the lack of cost-effectiveness

of such complete elimination, particularly in light of

(a) the total absence of any empirical showing of

harm, (b) the direct disagreement among the experts

as to the theoretical possibilities of harm, and (c) the

compliance of Milwaukee with discharge permits

granted pursuant to the comprehensive federal water

pollution laws and regulations discussed above.

Il. THE DECISIONS BELOW IGNORED PREVIOUS DECISIONS

OF THIS COURT WHICH ARE CONTROLLING PRECEDENT

AND WHICH ESTABLISH THAT. IN THE ABSENCE OF

EMPIRICAL EVIDENCE OF ANY NUISANCE, THE CON-

FLICTING TESTIMONY OF EXPERT WITNESSES IS NOT

SUFFICIENT TO ACCORD RELIEF IN AN ACTION ALLEGING

AN INTERSTATE NUISANCE.

A. The Record Is Devoid of Any Empirical Evidence of

Nuisance in Illinois or Michigan Waters. The Courts Below

Could Rely Only on the Speculations of Experts Which

Were Contradicted by Historical Fact.

A fundamental, basic and controlling fact of this

ease is that no witness and no exhibit in the entire

record found any virus or other pathogen from any

source in any Illinois or Michigan waters. Instead, the

evidence presented by the plaintiffs consisted of incon-

clusive ‘fecal coliform counts’’ and the conclusions and

opinions of experts, all of whom the District Court

noted were interested in the outcome of the case, and

none of whom were neutral as between the parties or

as to the outcome of the case (Pet. App. F-4). Spe-

cifically, the District Court made the following findings

after first acknowledging (1) that the expert testi-

mony was sometimes over the head of the court, that

the court’s grasp of some of the testimony was less

complete than the court would have liked it to be, and

(2) that the court would have had to enroll in a uni-

versity course directed at a reorientation of its entire

education to remedy this deficiency (Pet. App. F-3

and 4):

1. If the position of the State of [Illinois is correct,

a properly conducted study should have resulted

in some circumstantial evidence that would tend

to confirm Illinois’ theory. The State of Illinois

could have performed studies to determine

whether Milwaukee sewage effluents are not suffi-

ciently diluted in and by Lake Michigan so that

only insignificant numbers of pathogens and other

pollutants, if any, could reach Illinois waters.

Illinois elected not to do so because it was afraid

of a negative result and in so electing chose to

produce less evidence than it should have (Pet.

App. F-10).

2. There are fecal coliform counts on Illinois beaches

which fail to demonstrate any pollution coming

from Milwaukee (Pet. App. F-11).

3. There is no evidence of any outbreak of water-

related diseases in Illinois (Pet. App. F-12).

4, There is no evidence of any present effect of

Milwaukee discharges or, for that matter, of the

effect of any other nutrient discharges, on fish

life in the lake (Pet. App. F-18).

5. There is no evidence that any specific algal prob-

lem or any specific taste and odor problem ex-

perienced by residents of Illinois or Michigan is

attributable to Milwaukee sewage as opposed to

the nutrients discharged by any other point or

non-point source. (/d.)

6. It is impossible to measure accurately any effect

on the lake caused by Milwaukee’s discharges or

to measure accurately the diminution in the

amount of nutrients in the lake if Milwaukee

discharges were altogether discontinued (Pet.

App. F-19).

Thus, the fact is that there has been no showing of

any disease or any other adverse effect resulting in

Illinois or Michigan waters from sewage discharges in

Wisconsin during the century or more that Milwaukee

has been discharging to Lake Michigan. Indeed, no

outbreak of disease has been shown to have occurred in

Milwaukee itself, though Milwaukee’s drinking water

intakes are close to the points of discharge while those

of Illinois and Michigan are, to say the least, remote.

Note that the concern expressed by the courts below

related to enteroviral diseases, and such diseases mani-

fest themselves in a matter of weeks after exposure

(Tr. 2139, 2198). Certainly if there were any merit to

the speculated hazard, there would be some evidence

of its existence, some evidence that it actually caused

something in the lengthy span of time during which

the supposed hazard has existed. There is nothing!

This Court’s 1972 decision in Illinois v. Milwaukee

relied upon previous decisions of this Court as having

established a ‘‘federal common law’’ relating to inter-

state nuisance controversies. These cases are Missourt

v. Illinois, 180 U.S. 208, 200 U.S. 496 (1901, 1906),

New York v. New Jersey, 256 U.S. 296 (1921) and

North Dakota v. Minnesota, 263 U.S. 365 (1923).

The status of the evidence in this case as summarized

in the findings of the District Court set out above is

strikingly similar to the evidence before this Court in

Missouri v. Illinots, supra. This Court rendered two

decisions in the Missouri v. Illinois case. The first deci-

sion, reported at 180 U.S. 208, dealt with procedural

matters at the demurrer stage of. the proceedings.

When the Missouri case came before the Supreme

Court on the merits, Justice Holmes had this to say

about the earlier decision (the only one cited by the

District Court in this ease) :

‘*The decision upon the demurrer discussed mainly

the jurisdiction of the court, and, as leave to answer

was given when the demurrer was overruled, natu-

rally there was no very precise consideration of the

principles of law to be applied if the plaintiff

should prove its case. That was left to the future,

with the general intimation that the nuisance must

be made out upon determinate and satisfactory

evidence, that it must not be doubtful, and that the

danger must be shown to be real and immediate.

* * *

But the evidence now is in, the actual facts have

required for their establishment the most ingenious

experiments, and for their interpretation the most

subtle speculations, of modern science, and there-

fore it becomes necessary at the present stage to

consider somewhat more nicely than heretofore

how the evidence in it is to be approached.’’ 200

U.S. at 517-518.

Justice Holmes proceeded to emphasize two major

legal principles: (1) Congress has the power to enact

the paramount law, and (2) the courts should not take

the place of the legislature.

“In the case at bar, whether Congress could act

or not, there is no suggestion that it has forbidden

the action of Lllinois. The only ground on which

that state’s conduct can be called in question is one

which must be implied from the words of the Con-

stitution. The Constitution extends the judicial

power of the United States to controversies be-

tween two or more states, and between a state and

citizens of another state, and gives this court origi-

nal jurisdiction in cases in which a state shall be

a party. Therefore, if one state raises a controversy

with another, this court must determine whether —

there is any principle of law, and, if any, what,

on which the plaintiff can recover. But the fact

that this court must decide does not mean, of

course, that it takes the place of a legislature ...

If we suppose a case which did not fall within the

power of Congress to regulate, the result of a

declaration of rights by this court would be irre-

vocable by any power except that of this court to

reverse its own decision, an amendment of the Con-

stitution, or possibly an agreement between the

States, sanctioned by the legislature of the United

States,

* * *

The difficulties in the way of establishing such

a system of law might not be insuperable, but they

would be great and new.’’ 200 U.S. at 518-520

(emphasis added).

The Supreme Court then stated that these legal prin-

ciples affect the manner in which a court must view

the evidence.

‘*It is decided that a case as is made by the bill

may be a ground for relief. The purpose of the

foregoing observations is not to lay a foundation

for departing from that decision, but simply to

illustrate the great and serious caution with which

it is necessary to approach the question whether

a case is proved.’’ 200 U.S. at 520 (emphasis

added).

The Supreme Court then turned to the evidence. It

is strikingly similar to—though much stronger than—

the evidence before the courts below:

‘The plaintiff’s case depends upon an inference of

the unseen. It draws the inference from two propo-

sitions. First, that typhoid fever has increased con-

siderably since the change, and that other explana-

tions have been disproved; [No enteroviral out-

breaks were shown in the Milwaukee case now be-

fore the Court] and second, that the bacillus of

typhoid can and does survive the journey and

reach the intake of St. Louis in the Mississippi.

We assume the now-prevailing scientific explana-

tion of typhoid fever to be correct. But when we

go beyond that assumption, eveything is involved

in doubt. The data upon which an increase in the

deaths from typhoid fever in St. Louis is alleged

are disputed. The elimination of other causes is

denied. The experts differ as to the time and dis-

tance within which a stream would purify itself.

No ease of an epidemic caused by infection at so

remote a source is brought forward and the cases

which are produced are controverted.

The Chicago drainage canal was opened on Janu-

ary 17, 1900. The deaths from typhoid fever in

St. Louis, before and after that date, are stated

somewhat differently in different places ... we

assume that the increase is real. Nevertheless, com-

paring the last four years with the earlier ones,

it is obvious that the ground for a specific infer-

ence is very narrow, if we stopped at this point.

The plaintiff argues that the increase must be due

to Chicago, since there is nothing corresponding

to it in the watersheds of the Missouri or Missis-

sippi. On the other hand, the defendant points out

that there has been no such enhanced rate of ty-

phoid on the banks of the Illinois as would have

been found if the opening of the drainage canal

were the true cause. [in the instant case there is

no empirical evidence of disease or pathogen

presence |

* * *

Both sides agree that the detection of the typhoid

bacillus in the water is not to be expected [In the

Milwaukee case, the trial court found that plaintiff

had chosen not to perform available detection

studies, thus producing less evidence than it should

have because fearful of the result!]. But the plain-

tiff relies upon proof that such bacilli are dis-

charged into the Chicago sewage in considerable

quantities ; that the number of bacilli in the water

of the Illinois is much increased, including the

bacillus colt communis, which is admitted to be an

index of contamination, and that the chemical

analyses lead to the same inference.

* * *

On the other hand, the defendant’s evidence shows

a reduction in the chemical and bacterial accom-

paniments of pollution in a given quantity of

water, which would be natural in view of the mix-

ture of nine parts to one from Lake Michigan.

It affirms that the Illinois is better or no worse

at its mouth than it was before, and makes it at

least uncertain how much of the present pollution

is due to Chicago and how much to sources further

down, not complained of in the bill. It contends

that if any bacilli should get through, they would

be scattered and enfeebled and would do no harm.”

200 U.S. at 517-527 (emphasis added).

While the evidence before the Court in Missouri v.

Illinois was strikingly similar to and considerably

stronger than that present here (in the absence of

tests that could and should have been performed by

plaintiff), the result reached by the Supreme Court

is the opposite of that reached by the courts below—

the Supreme Court dismissed the case!

Similarly, the Supreme Court in New York v. New

Jersey, supra, met the same evidentiary problem and

held that in such a situation history prevails over the

speculation of experts.

‘‘'T |he evidence of the complaint is that, as early

as 1906, the water adjacent to New York City...

was much polluted by sewage, but that the water

in other parts of the bay, especially near Robbins

reef light, was somewhat, but not greatly, contami-

nated ... And the evidence taken under the order

of the court in 1919 shows an irreconcilable con-

flict in the testimony as to the then condition of

the water, especially near Robbins reef light. [I]t

is undisputed that ... New York sewage, untreated,

was discharged from over 450 sewers directly into

the adjacent waters....

* ” *

It would seem, therefore, that if the anticipations

of the experts for the complainants, as to the

results likely to be produced by the effluent from

the sewer of defendants, were well founded, by

the year 1919 [in the case of Milwaukee, 1972]

conditions in the harbor should have become so

pronounced and plain [in the case of Milwaukee

the epidemics of enteroviral disease would have

been so rampant] that there could not have been

such conflict as the record shows in the testimony

of trustworthy and competent scientists as to its

then existing condition.

* * *

[W]e must conelude that the complainants have

failed to show by the convincing evidence which the

law requires that the sewage which the defendants

intend to discharge into Upper New York Bay...

would so corrupt the water of the Bay as to create

a public nuisance... .’’ 256 U.S. at 311-314.

Contrary to the action of the courts here, which

found liability and imposed severe and costly remedies

on the defendants, the Supreme Court there, in ex-

tremely similar fact circumstances, dismissed the ac-

tion. That same result is compelled here where there

is no empirical evidence of any effect from more than

a hundred years of Milwaukee’s discharges to Lake

Michigan, and where the experts were in direct dis-

agreement as to the theoretical possibilities of effect.

This is particularly true in light of the fact that

Milwaukee’s discharges to Lake Michigan have been

and continue to be the subject of a statutory scheme

administered by an independent federal agency in-

terested only in the public health and public navigable

waters, and which agency is unbiased as between con-

testing parties.

Of more than passing interest is the fact that Illinois

and Michigan chose not to participate in the adminis-

trative proceedings relating to Milwaukee’s permits

although, under the federal statute, they had notice

and a full opportunity to do so. Section 302(a) (§ 1812

(a)); §509(b) (§ 1369(b)); § 402(b) (5), (§ 1342(b)

(5)); Wis. Stat. § 147.20 (1977). Those states and

states relying on this case for precedent should not be

permitted to take weak cases to non-expert federal

court forums for a trial on expert opinion to avoid the

application of independent, neutral expertise under the

congressionally enacted permit system.

An analysis of respondents’ proof below leads to

reversal, The analysis starts with the legal truism that

in order for respondents to prevail they must have

introduced some evidence of the actual state of Lake

Michigan water within the jurisdiction of each of the

respondents. Lake Michigan is out there; its waters are

available for scientific analysis. Testing procedures to

prove the existence of the dangers speculated upon by

the witnesses are known and available. Yet respondents

chose to do no such testing—a choice which the District

Court characterized as having been made out of fear

over the results (Pet. App. F-10). Are there viruses in

Illinois’ waters? Are there pathogenic bacteria in [li-

nois’ waters? The best that can be said for the record

before this Court is that no one really knows and that

the respondents did not attempt to prove what was

there because they did not want to find out for sure.

The respondents should have been required to come

forward with some empirical evidence relating to pub-

lic health and actual conditions in the lake. This was

the type of evidence required by the Supreme Court

when it had occasion to deal with similar issues. Before

a court imposes liability for untold millions of dollars

of expense, should it not know whether there is in fact

any imminent hazard to health? Should it not at least

require that an attempt be made to determine the

existence of the alleged dangers ?

Speculations by the courts below as to remotely pos-

sible occurrences inferred from the outer reaches of

expert hypotheses cannot stand against known and ob-

servable facts before the court. Here such physical

tests as were taken in Lake Michigan were taken by

Milwaukee, and they negate the existence of pathogens

in Illinois waters. Even more importantly, the fact that

there has been no outbreak of any water-borne infec-

tions or diseases in Illinois certainly negates any claim

that a hazard exists or has existed in the last hundred

years that Milwaukee has been discharging effluent to

Lake Michigan 25 miles away from Illinois.

Where a party claims that a hazard exists requiring

injunctional intervention at hundreds of millions of

dollars in cost, and where that alleged hazard has

existed for a hundred years, the language and logic of

the Supreme Court in North Dakota v. Minnesota,

supra, should put an end to the controversy :

“It is difficult for a court to decide issues of fact

upon which experts equal in number and standing

differ flatly, and when their conclusions rest on

estimates upon the correctness of which the court,

without technical knowledge, cannot undertake to

pass. In such cases, the court looks about for out-

standing facts from which the lay mind can safely

draw inferences as to the probabilities.

* * *

To attribute to such a minor but constant artificial

incident a phenomenal effect for two whole sum-

mer seasons without a recurrence since is to fly in

the face of all reasonable probability. The evidence

must be clear and convincing indeed to support

such a theory. Instead of that, it is a combination

of estimates and conjecture based on no accurate

knowledge of the flow of the Mustinka before the

ditches were put in, and depending greatly on a

hypothetical detaining basin in the so-called Delta

zone, existence of which the greater weight of the

evidence negates.

* * +

The conclusion we have come to on the main issue

of fact—that Minnesota is not responsible for the

floods of which complaint is made—makes it un-

necessary for us to consider this evidence as to a

practical remedy for them, and requires us to leave

the opinions and suggestions of the expert engi-

neers for the consideration of the two states in a

possible effort by either or both to remedy existing

conditions in this basin.’’ 263 U.S. at 385-388.

While thousands of pages of transcript and hundreds

of exhibits have been adduced, the record as a whole

does not establish a right to relief with sufficient clarity

to necessitate a decision on the effect of the federal

statutes and the underlying administrative action upon

the federal common law of water pollution nuisance

the respondents advocate.

This Court has repeatedly held that speculations

based on hypotheses of experts do not rise above demon-

«strated and demonstrable facts. Here the facts are

clear. No pathogens have been shown in Illinois waters.

No effects of pathogens have been shown in Illinois.

No accelerated eutrophication resulting from defend-

ants’ discharges has been shown in either Illinois’ or

Michigan’s territorial waters. All we have is some

expert hypotheses opposed by other expert hypotheses,

followed by a never-ending and inconclusive chain of

speculation.

B. Neither Illinois Nor Michigan Require the Level of Control of

Overflows Ordered by the Courts Below.

If the hazards which Illinois and Michigan allege are

posed by Milwaukee’s overflows were truly a concern,

rather than being a strawman for this litigation, one

would assume that a requirement to eliminate all over-

flows would be imposed by both Illinois and Michigan

on their own municipal sewage discharges to protect

their own citizens. In fact, neither Illinois nor Michi-

gan require the total elimination of all overflows as

ordered by the courts below.

In Missouri v. Illinois, supra, this court stated:

‘“Where, as here, the plaintiff has sovereign pow-

ers, and deliberately permits discharges similar

to those of which it complains, it not only offers a

standard to which the defendant has the right to

appeal, but as some of those discharges are [at

points where they could cause the injury com-

plained of], it warrants the defendant in demand-

ing the strictest proof that the plaintiff’s own con-

duct does not produce the result, or at least so

conduce to it that courts should not be curious to

apportion the blame.’’ 200 U.S. at 522.

Tilinois does not prohibit combined sewer overflows

nor require their complete elimination. Dlinois Pollu-

tion Control Board Rules and Regulations, Chapter 3:

Water Pollution, § 602(c) (1976) (P.Ex. 171 at 30-31)

states in relevant part:

‘* All combined sewer overflows and treatment plant

bypasses shall be given sufficient treatment to pre-

vent pollution or the violation of applicable water

quality standards. Sufficient treatment shall con-

sist of the following:

(1) All dry weather flows, and the first flush of

storm flows as determined by the Agency,

shall meet the applicable effluent standards ;

(2) Additional flows, as determined by the Agen-

cy but not less than ten times the average

dry weather flow for the design year, shall

receive a minimum of primary treatment

and disinfection with adequate retention

time ;

(3) To the extent necessary to prevent accumu-

lations of sludge deposits or depression of

oxygen levels, flows in excess of those de-

seribed under paragraph (¢) (2) above shall

be treated by retention and return to the

treatment works or otherwise. When the

Agency finds it necessary, part or all of such

excess flows shall be treated to substantially

remove floating debris and solids.”’

The above regulation means that only dry weather

flows and the ‘‘first flush’’ of storm flows (as deter-

mined by the Illinois EPA) are required to meet ap-

plicable effluent standards.” After the ‘‘first flush,’’

23 Applicable effluent standards in Illinois range from 4 mg/l

BOD5 and 5 mg/I! SS all the way up through 30 mg/l BOD5 and

37 mg/l SS, depending upon the volume of waste discharged (ex-

pressed in the Illinois regulations as ‘‘population equivalents’’)

and the ‘‘dilution ratio’’ of the effluent into the receiving body.

Illinois Pollution Control Board Rules and Regulations, supra,

§§ 104 and 404 (P.Ex. 171 at 3, 22-25). The only exception to the

storm flows equal to ten times the average ‘‘dry weather

flow” need to receive only ‘‘primary treatment and

disinfection with adequate retention time.’’ Storm

flows in excess of the ‘‘first flush’? and ten times the

foregoing is Lake Michigan, where an effluent limitation ‘of 4

mg/l BOD5 and 5 mg/l! SS is specified without regard to waste

volumes or dilution ratios. (Because of the drainage hydrology

of Illinois, only Chicago and Waukegan discharge occasional over-

flow sewage effluent into Lake Michigan, with their normal dis-

charges ultimately flowing into the Mississippi River, like all other

Illinois sewer systems which discharge into waters to the west.

Significantly, the Chicago and Waukegan discharges to Lake Michi-

gan are sewer overflows which do not meet Lake Michigan dis-

charge standards! See ‘‘Supplemental Response of the State of

Illinois to Applicants’ Motion for Stay Pending Certiorari,’’ dated

May 7, 1980, at 6-7.)

Except for discharges to certain bodies of water, the applicable

effluent standards are intended to make all waters in Illinois suit-

able for ‘‘general use’’ and ‘‘publie and food processing water

supply use.’’ Illinois Pollution Control Board Rules and Regula-

tions, supra, §§ 104 and 301-303 (P.Ex. 171 at 5, 19-20, Tr. 3719).

Thus, the effluent standard which must be met by the ‘‘first flush’’

of storm flows from combined sewer overflows will vary through-

out Illinois, even though the waters into which such discharges are

made will often have identical designated ‘‘uses.’’

The Illinois regulations themselves do not define ‘‘first flush,’’

but the Illinois EPA has promulgated ‘‘Procedures for Determin-

ing Compliance With Rule 602(c) of Chapter 3: Water Pollution

Regulations of the Illinois Pollution Control Board’’ (Technical

Memorandum 3, June 1, 1977) which states as follows:

‘‘The storm chosen to determine first flush effects must have

a minimum recurrence interval of one year.’’

In contrast, the District Court’s remedy of ‘‘complete elimination’’

of sewer overflows requires Milwaukee to construct a sewer system

with a capacity sufficient to contain the largest storm of record in

Milwaukee during the 37-year period from 1940 to 1977 (Pet. App.

D-3). Of course, it is entirely possible that the largest storm of

record in Milwaukee during the 1940-1977 period has a recur-

rence interval significantly greater than 37 years (i.e., a storm

having a recurrence interval of 100 years—or 1,000 years, for that

matter—could have occurred during the 37 year period).

average dry weather flow need not receive any treat-

ment whatsoever except to the extent necessary to

prevent ‘‘accumulations of sludge deposits or depres-

sion of oxygen levels,” or to remove ‘‘floating debris

and solids’’ if the Illinois EPA determines that to be

necessary.

Significantly, the Illinois regulations were amended

in 1977 to expressly exempt from compliance with even

the foregoing requirements (which have not been

amended to date) all combined sewer overflows with

respect to which appropriate steps have been taken to

secure federal construction grant funds under Sec.

201(¢g) of FWPCA (§ 1281(g)), until completion of

construction under the grant provided. Illinois Pollu-

tion Control Board Rules and Regulations, supra,

§ 602(d) (1976) states in relevant part:

‘*Compliance with paragraph (c) of this Rule 602

shall be achieved on or before the following dates:

* * *

(2) All combined sewer overflows within the

Metropolitan Sanitary District of Greater

Chicago, by December 31, 1977;

(3) All other combined sewer overflows, by De-

cember 31, 1975.

(4) The compliance dates set by (d)(2) and (d)

(3) shall be met unless:

(aa) The discharger’s combined sewer over-

flow is eligible for a construction grant

under Section 201(g) of the FWPCA;

and,

(bb) The discharger has filed an application

for a construction grant on or before

March 1, 1977; and,

(cc) The discharger has timely taken all

appropriate pre-grant and post-grant

actions necessary to the specific grant

step for which the discharger is then

eligible.

* * *

(7) The exemption provided by (d)(4) above

shall terminate upon completion of construc-

tion under the grant provided and compli-

ance with the provisions of this Rule shall

thereafter be required.’’ (emphasis added)

In short, Illinois requires only the ‘‘first flush” of

storm flows from combined sewers to meet applicable

effluent limitations, and even that requirement is

waived until federal funding has been received and

related construction has been completed. That is a far

cry from the onerous burden imposed upon Milwaukee

by the courts below of requiring all combined sewer

overflows to meet applicable effluent limitations regard-

less of cost or the availability of federal financial

assistance.”

The State of Illinois, through its Environmental

Protection Agency, has permitted the City of Wauke-

gan, which is served in part by combined sewers, to

build a treatment plant which will allow bypasses of

sewage into Lake Michigan from what is defined as a

*‘one-year storm’’ (Tr. 13444-45, 13450).

—_—_— ——.

*4In upholding the District Court’s requirement that all of Mil-

waukee’s combined sewer overflows be ‘‘eliminated’’ (i.e., treated

to meet applicable effluent limitations), the Court of Appeals in-

correctly believed that that remedy was equivalent to what Illinois

requires of its own dischargers :

‘*These requirements [Illinois Pollution Control Board Rules

and Regulations, supra, § 602(c)]| seem to be comparable to

the treatment of overflows from the collection and conveyance

system described by the district court.’’ 599 F.2d at 173 (Pet.

App. A-39).

Illinois permits the City of Chicago to discharge

large volumes of untreated sewage into Lake Michigan

by means of reversals or ‘‘backflows’’ of the Chicago

Canal System. Such backflows into Lake Michigan of

hundreds of millions of gallons of polluted river water

containing untreated sewage have occurred 19 times

from 1959 through 1978, with 12 of those in the last 10

years (Tr. 4026-4034; D.Ex. 170 p. 9, Tr. 4024; GAO

Report by the Comptroller General of the United

States, CKD-79-77, supra at Vol. 1, p. 18).

In the City of Chicago, where combined sewers

service one of the largest areas and population in the

United States, the planned TARP project, even if

finally completed at a cost estimated to be between $4

billion and $11 billi

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