# Petitioners Brief — Milwaukee v. Illinois

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A15

## Record

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

## Text

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

li

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-

35

46

48

59

56

65

69

69

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 “

4
’

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,
v.

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

2

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.

3

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

4

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

4)

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

6

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

7

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-

8

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.’’

9

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.

10

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).

11

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-

12

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

13

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

14

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

15

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-

16

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.

17

upon Milwaukee was reached in the face of the follow-
ing express findings by the District Court:

1.

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).

18

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.

19

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-

20

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

21

cost-effectiveness in favor of total elimination without
regard either to costs incurred or benefits secured.

SUMMARY OF ARGUMENT
L

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.

22

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.

23

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

24

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

25

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

26

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

27

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.

28

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.

29

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

30

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).

31

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).

32

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).

33

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-

34

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.

35

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

36

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-

37

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).

38

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-

39

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.’’

40

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

41

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.

42

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.

43

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.

44

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

45

(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

46

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-

47

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

48

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

49

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.’’

50

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.

ol

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

52

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-

53

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-

04

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.

56

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

o7

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),

38

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}.

59

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).

60

(“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.

61

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-

62

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).

63

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).

64

With th

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A15. Public record. Not legal advice.