Respondents Brief — Milwaukee v. Illinois

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No. 79-408

Supreme Court, U.S

ot Led.

IN THE OCT 22 1980

Supreme Court of the Gnited GALES, RODAK, JR CLERK

OCTOBER TERM, 1979

CITY OF MILWAUKEE, THE SEWERAGE COMMISSION

OF THE CITY OF MILWAUKEE, AND _ THE

METROPOLITAN SEWERAGE COMMISSION OF THE

COUNTY OF MILWAUKEE,

Petitioners,

vs.

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 OF RESPONDENT

PEOPLE OF THE STATE OF ILLINOIS

TYRONE C. FAHNER

Attorney General

State of Illinois

JOSEPH V. KARAGANIS

SANFORD R. GAIL

Special Assistant

Attorneys General

150 N. Wacker Drive

Chicago, Illinois 60606

(312) 782-1905

Of Counsel:

A. BRUCE WHITE

RUSSELL R. EGGERT

JEFFREY T. RENZ

150 N. Wacker Drive

Chicago, Illinois 60606

(312) 782-1905

Pandick Press Midwest, inc. Chicago «* 454-7600

QUESTIONS PRESENTED FOR REVIEW

1. Under Article III of the Constitution and the Judicial

Code, what are the constitutionally proper forums when a State

seeks to prevent injuries to its citizens from the tortious acts of a

citizen of another State? Can a complaining State be con-

stitutionally compelled to seek relief in either the state courts or

the state administrative agencies of a defendant citizen?

2. Where the separate and independent grounds for relief

were asserted in the District Court—one based on federal

common law, one based on an Illinois state statute and one

based on state common law—was not the District Court correct

in applying federal law to the federal common law claim and

state law to the state statutory and state common law claims?

Under Erie v. Tompkins, 304 U.S. 64 (1938) and Guaranty

Trust Co. v. York, 326 U.S. 99 (1945), is not this Court

constitutionally compelled to apply state statutory and common

law to these claims having their source in state law?

3. Where a federal court fashions “interstitial” federal

common law to implement the general goals of a Congression-

ally established statutory program, does the federal court have

constitutional authority to oust (preempt) concurrent state

statutory and common law remedies where the Congress has

expressly declared its intent to preserve state common law and

State statutory remedies?

4. In the enactment of the 1972 Amendments to the

Federal Water Pollution Control Act (P.L. 92-500) and the

1977 Amendments to the same Act (P. L. 95-217) did Congress

intend to oust state statutory and common law remedies from

operation or did Congress intend to preserve the concurrent

operation of those state statutory and common law remedies?

5. Where Congress has been repeatedly informed through

the pronouncements of this Court, e.g., Vermont v. New York,

417 U.S. 270, 275 n. 5 (1974), and the express holdings of the

lower courts that the federal interstitial common law announced

by this Court in Jilinois v. Milwaukee, 406 U.S. 91 (1972) and

Washington v. General Motors Corp., 406 U.S. 109 (1972) has

not been preempted by either the Clean Air Act or the Federal

Water Pollution Control Act Amendments of 1972 (P.L. 92-

500) and Congress has not changed the law, can Congress be

held to have ousted interstitial federal common law from the

fields of air and water pollution control?

6. Has a violation by Milwaukee of Illinois’ rights under

the Illinois Environmental Protection Act, state common law

and federal common law been established where both the

District Court and the Court of Appeals found—after an

exhaustive review of the evidence—and on the basis of uncon-

tested evidence that:

a. It is undisputed that Milwaukee discharges huge

volumes of raw or inadequately treated sewage into Lake

Michigan containing billions of disease-causing virus and

bacteria on a frequent basis. This information is based on

both undisputed general scientific knowledge about the

content of human feces as well as voluminous sample data

for fecal bacteria.

b. It is undisputed that these patltggens are carried by

shore parallel currents into Illinois waters of Lake Michi-

gan on a periodic basis. There was no dispute among all

Parties’ experts that such transport does take place and that

the time of travel can be as little as two days. The only

dispute among experts was as to the frequency of such

transport and all agreed the frequency could vary from

year to year. All of the expert testimony was based on

massive amounts of data collected from Lake Michigan as

to current, speed, persistence, and direction, as well as data

on dispersion.

c. It is undisputed that bacterial pathogens survive as

long as four days to eight days and that viruses survive at

temperatures found in Lake Michigan for several weeks to

months.

d. It is undisputed and two courts found that Mil-

waukee viruses and pathogenic bacteria in Illinois water

create a serious health hazard for swimmers and that

ill

viruses can survive the treatment processes at drinking

water plants thus creating a severe health hazard.

e. It is undisputed that large numbers of people in

Illinois and in Wisconsin are being infected with enteric

viral disease, but for a variety of reasons—including the

fact that for every 100 persons infected only one will

exhibit evidence of a disease—it is impossible to develop

an epidemiological link between the source of con-

tamination and the infected victim.

f. It is undisputed that there are bacterial counts on

northern Illinois beaches which are clearly of human»

origin, but that it is impossible to identify the discharge

source of this bacteria. Bacteria in open waters of Lake

Michigan (a) are invisible to the naked eye and (b) do not

carry certificates of origin.

7. Has a violation by Milwaukee of Illinois’ rights under

the Illinois Environmental Protection Act, state common law,

and federal common law been established when both the

District Court and the Court of Appeals found—after an

exhaustive review of the evidence—that:

a. Phosphorus is the primary chemical ingredient

which accelerates the aging or “eutrophication” of Lake

Michigan, changing it from a clear fresh body of water into

a lake clogged with algae;

b. Milwaukee’s antiquated sewage treatment plants

discharge over 50% of the total sewage load of phosphorus

into all of Lake Michigan, with Milwaukee’s raw sewage

overflows adding an untold additional amount;

c. Lake Michigan is becoming increasingly eutrophic;

d. The phosphorus and other nutrients as well as the

algae they produce travel throughout the nearshore zone

without regard to invisible state borders;

e. It is uncontested that communities along the north

shore of Illinois experience increasing algal taste and odor

problems with drinking water drawn from Lake Michigan;

f. It is uncontested that if left unchecked this eu-

trophication process will harm fish spawning areas.

8. After 13 years of interminable administrative and

judicial delay—exacerbated in great part by Milwaukee’s con-

stant and repeated maneuvers to avoid a judicial determination

of liability and the imposition of an effective judicial rem-

edy—and after detailed determination of both liability issues

and the remedy issues by both the District Court and the Court

of Appeals, can Milwaukee create further delay by invoking the

same tired arguments of which this Court rejected ten years ago

where:

a. The permit system cited by Milwaukee is adminis-

tered by a Wisconsin state agency. [Illinois cannot be

constitutionally compelled to try its complaints in the state

courts or agencies of the defendant;

b. By their own terms the Wisconsin permits provide

the same basic relief as contained in the Amended Judg-

ment Order, but have no legal effect because the permits

are limited to five years and the relief requested here will

take a minimum of 13 years. The permits contain no

deadlines for achievement of any effluent controls on any

overflows even though the permits—like the Amended

Judgment Order here—call for elimtnation of the over-

flows in the separated area which comprise 95% of the

sewtr collection area; -

c. .The state permits expressly disclaim any legal

connection with the eleventh hour consent decree between

Wisconsin administrative officials and Milwaukee entered

into on the eve of the federal court’s decision here;

d. The eleventh hour consent stipulation between

Milwaukee and Wisconsin officials is enforceable only in

Wisconsin courts and is subject to consensual changes

between Milwaukee and Wisconsin officials at any time;

e. The eleventh hour consent decree is so open-ended

that the deadiine for completion of the combined sewer

area corrective «measures—which are as yet undefined .

three years after the consent stipulation was entered—may

never be completed, and at the very least, may not be

completed until the year 2025.

9. Will this Court be deceived by Milwaukee’s and the

amici sewage agencies’ audacious attempt to obtain a judicial

amendment to the Clean Water Act giving judicial approval of

“cost-effective” water quality standard violations where the

Congress has dictated a completely different definition of “‘cost-

effective” under §212 and 40 C. F. R. Part 35, Subpart E,

Appendix A, 4] 4b—i.e., the least cost method necessary to

achieve water quality standards through § 301(b)(1)(C); and

where Milwaukee has been unsuccessful in selling its argument

to Congress?

10. Where Milwaukee consciously and intentionally dis-

charges hundreds of millions of gallons of raw and in-

adequately treated sewage into Lake Michigan every year, and

where this sewage is carried with Milwaukee’s knowledge into

Illinois waters on a regular basis, endangering Illinois’ beaches

and water supply:

a. Does a federal District Court in Illinois have in

personam jurisdiction?

b. Was venue proper in the District where the injury

occurred?

TABLE OF CONTENTS

Page

Questions Presented For Review. ...............cccccceseseeeeeeeeeees i

Pe a iiithcciciscisncnicsnvanisidinbaiaestebassntbeniakenvalnede vi

ee I eit wvvescitcvnnicceiscaid ecnsenteeecsaeoiooesireiiovend x

Statutory Provisions Involved. ..............cccccceesseeeeesseeeeeeeeees XVi

SNE UE Fe I i elieecinncensienacdcaiicaenevtedacesthanabikanns ]

A. Illinois’ Efforts To Abate Pollution Of Lake Michi- ,

IIS chicas sieadlectanica baiialiedannunedaseedl Soinbuentaiabinbiceoacies

l. The Lake Diversion Studies And The

I a innisiksntiinttnsiansapeiaviamianzie 6

& Illinois’ Precarious Position. ..................++- 8

3. The Effort At Administrative Abatement

Through The Federal Water Pollution

IE PINs saints scans eicddbiaisiiviccunvndadiiers 8

4. Illinois Seeks Judicial Abatement. ........... 9

B. Illinois v. Milwaukee In The Supreme Court

PIE SMI siisds tl dhesdecstaciercdbantienebessnbiahitiedbinupbasrcactpens 12

C. The Procedural History Of This Case....................... 13

Ds ©) IRR RIO chcessacciecsuonrencdintenrenceusvess 13

r 5 Milwaukee’s Pre-Trial Maneuvers........... 13

3. The Evidence At Trial. ..........c.cccccccccossscees 15

4 The Judgment Of The District Court on

Nissin tits skis iedbainiteh ci caciininclomninstoaneuies 16.

5. |The Remedy Ordered By The District

A cs Micniiethisiidicuiinsavananiobabtibessidersbdacien 17

he Se cerita teins saeteittentoaacepbiocinval 17

i. The Separated Sewer Area...... 17

ii. Combined Sewer Area

SRE ditt linsiiedisibatiebicaeateiess 18

ae | ARERR RREGOP OO 19

6. The Decision Of The Court of Appeals... 20

SuammAy OL ALSUMOAE, ...circsiccorcrnsccesesdsicecscrccoseseceessosansees 20

A. Legal And Constitutional Framework For Illinois’

Rp: sdhesiieceh dicland.ceichiucesiidebaeaeasssalcabtumianrabdneianteibveiesees 20

B. The Evidence To Support The Decision Of Liabil-

NG -aibinsessehinclesshivsa Gaiuiniddidiandeciuaaiaiemnbiaediiaidaanibiics 22

Vii

C. Milwaukee’s Arguments.............ccccccccsssseccrssesssssssccees

1. Compliance With Wisconsin Abatement

ica dinicsctanihemiahcaninieiblaastagecenbiptense

4 Cost-Effectiveness. .............ccccccscssseeseseseeees

3. In Personam Jurisdiction. ..............000000000

4. gS RRRERT RIN OM Le. Sa

FRI, ccistiiiecnssansitiisciabiincstininaicstiskinupindiidibintiiaiiibnididmniinheininds

I. Under The Constitution Illinois Cannot Be Com-

pelled To Litigate Its Claim Against Milwaukee

In The State Courts Of Wisconsin.................000000+-

A. This Is A Suit By A State Against A

Citizen Of Another State. .....................

B. This Is Not A Suit By A State Against

BE I va kissbaiccintincenttbacivinttuncniices

C. This Court’s Dilemma Really Centers

On The Search For An Alternative

ROPERS Serger {Seeley aN

II. Choice Of Law— Under The Constitution The Law

To Be Applied In Determining Claims Of

Substantive Right Is The Law Which Is The

Source Of The Substantive Right.........................

III. Judicial Declaration Of A Federal Common Law

Right As An Interstitial Remedy To Effectuate A

Congressional Purpose Cannot Oust State Legis-

latures And Courts Of Their Law-Making Power

Unless Congress.Clearly Intends State Law To

SNE III ictdciceciniscanicncccsnbaceciiencalanleobioisiidindhaninhes

A. The Source Of The Federal Common

Law Of Nuisance Articulated By This

Court Was “Interstitial” Federal

CI Be sictiticbtckcntesnsinsenstiinccnines

B. Federal Interstitial Common Law Can-

not Oust Concurrent State Statutory

And State Common Law Unless The

Statutory Scheme On Which The In-

terstitial Federal Common Law Is

Based Demonstrates A Clear Intent

To Oust State Law. .............. ccc cceeeeeeeeeees

C. The Constitutional Mandate of Erie

That State Law Govern The Determi-

nation Of Rights With Their Source In

State Law Is Consistent With The

Court’s Decision In Iilinois v. Mil-

i siiccin cts cote clctidedagetteistieintecnn

Vii

D. The Law Applied In Suits By One State

Against Another State Does Not

Apply To Interstitial Federal Com-

NG siciitcicstiniaichshtideasinahleniadanitennapnonnes

E. Congress Has Not Preempted State Stat-

utory And Common Law Remedies

To Abate Water Pollution. ...................

1. The Law Of Preemption. .................

2. Congressional Intent To Preserve

BN GND sAiecneccinchnaddeginnsiccnnenntnniennes

F. Congress Was Aware Of Court Deci-

sions That The 1972 FWPCA Amend-

ments Had Not Preempted Federal

Common Law. With This Knowledge

It Rejected Attempts To Preempt

Both The Federal Common Law And

The Result In This Case. ......................

IV. The District Court Properly Held That Federal

Law Governs The Federal Common Law Claim

In Count I And That State Law Governs The

State Statutory And State Common Law Claims

Ba II sceciachsaniibestanmndacediniadnstaacennraees

V. The Evidence Before The Trial Court Below

Overwhelmingly Demonstrates Milwaukee’s

Liability For Contaminating Illinois Waters Of

Lake Michigan Under The Federal Common

Law, The State Common Law, And The Illinois

Environmental Protection Acct. .............:cccceeeeeeeees

VI. Wisconsin’s Abatement Requirements Continue

To Be Plagued By Lack Of Specific Com-

mitments And Lack Of Precise Deadlines............

A. Wisconsin’s Pollution Control Requirements ..

B. Wisconsin Permits Are Not A Defense. ...........

C. Illinois Permit Requirements Are As Strict As

The Judgment Ordet............cccccccccscsssscsccseeees

VII. ‘“Cost-Effectiveness” As Used In The Clean Wa-

ter Act Means The Least Resource Cost To

Achieve The Requirements Of The Act: “Cost-

Effectiveness” Does Not Allow Milwaukee To

Violate Water Quality Standards Under

§ 301(b)(1)(C) And § 303(C). ..... cee eeeeeeeteeeees

VIII. The Cost To Milwaukee Was Considered By

The Courts Below Even Though The Doctrine

Of Balancing Does Not Apply When A Public

Health Nuisance Is Involved. ....................ssse00000

IX. The District Court Had Jn Personam Jurisdic-

tion, And Venue Was Proper In The Northern

"RESIS IT See ON ET | Paar Nee 58

A. The District Court Had Jn Personam Jurisdic-

Nai ca ie cg a a 58

1. Discharge Of Pathogens Into Illinois

Waters Constitutes The Commission

Of “‘A Tortious Act Within” The State

RO dt ei a 59

2. The Contacts Between Illinois And Mil-

waukee Are Sufficient To Support Jn

Personam Jurisdiction......................0060. 60

B. Venue Was Proper In The Northern District

RIE ESE See ERNE Ne I ae 62

1. Illinois’ Claims Are “Transitory” Ac-

TT 63

2. Section 505 Of The Clean Water Act Is

I icici icbectdscsinincosiuinciorarinenes 65

3. Illinois’ Claim “Arose” In The Northern

IE Wi INO gvcsitesscecatcasecscainscrotcsare 66

CI iii a ee cc eundidumlab ies 67

TABLE OF AUTHORITIES

Cases

Alexander v. Tolleston Club, 110 Tl. 65 (1884) ....... 1]

Berenyi v. District Director, Immigration & Naturalization

I Re is I REET vadslescsueserssnctecasstsnaventsistnsondscnce 22, 46

Bethlehem Steel Corp. v. Train, 538 F.2d 513 (2d Cir.

S| FREESE CARE AEE PORE R tree a SN ONO I NATE 51

Board of Commissioners of Jackson County v. United

I, Fe Ci FN let doetenentikiresssvcnnssesvinlonsoseoness 33, 34, 36,

37-38

Board of Commissioners of Ohio County v. Elm Grove

Mining Co., 9 S.E. 2d 813 (W. Va. 1940)... eee eee 57

Board of Supervisors of Fairfax County, Virginia v. United

States, 408 F. Supp. 556 (E. D. Va. 1976) 0... eee 43

Borden Farm Products v. Baldwin, 239 U.S. 194 (1934)... 19-20

Capay ¥. Adams, 1071S. 66 C 1SGO). ivisescessscocccsescsssovscscesecess 65

Chisholm v. Georgia, 2 Dall. 419 (1793) .......ccccceecceccsseeseeeees aia

City of Evansville v. Kentucky Liquid Recycling, Inc., 604

re A FO UTES parce hc sccishavhcksdcsonenecnansnnoneacenncees 66

City of Harrisonville vy. W. S. Dickey Clay Manufacturing

ec, ee a I OI Sess sctnsakiice spit uticbabedtusclenmdbiicniininians 57

Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). 33

Commonwealth ex rel. Schumaker v. New York & Pa. Co.,

BT ey FP Pe BO OTP kcsthcnteisictiicdevsasscnnnontscviacins 5a, 57

Connecticut v. Massachusetts, 282 U.S. 660 (1931) ............ 38

Consolidated Laboratories, Inc. v. Shandon Scientific Co.,

ee Fe FOE A FO ile THREE PB wah sasisdaidiseiscciisrcsasannibennssncene 60

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

SINE A MWITE cinch suctsacnicctinintesicnigh capita dlensteasnkaetdaap indiana 52

Craft v. I., D. & W., Ry. Co., 166 Ill. 580, 46 N.E. 1132

SPRITE ia esis shea scissaimpetoadhtat ecbaannieiaaiebhbiblatavczclaucsidedphumgmienss 11

Denver & Rio Grande Western Railroad Co. v. Broth-

erhood of Railroad Trainmen, 387 U.S. 556 (1967) ........ 63

Deitrick v. Greaney, 309 U.S. 190 (1940) wo... ce eeeeeeeeeee 33, 34, 37

D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942)....... 33, 34, 37

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ..........ceeeeeeeeee passim

Florida Lime & Avocado Growers, inc. v. Paul, 373 U.S.

Fe A SIE Shick, aie aciaihidisnslactbeablbehitadiedace untadicsbubiniiciagebisbin 40

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

Germania Insurance Co. v. Wisconsin, 119 U.S. 473

HU ck nsec Nc thdesce sae dene ego inebaencnaiadeaniosaebiaaeAiacacnil

Graver Tank & Manufacturing Co. v. Linde Air Products

Be ee a IEE ureteninssscecsccebinnepananbiseboatasininakcaddasies

Gray v. American Radiator & Standard Sanitary Corp., 22

ee a, Ee Pe ek Pe EU Becvericeiecectncstsnciesininntans

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) wee

Hanson v. Denckla, 357 US. 235 (1958 ) .............ccccccccsssceeee

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

es He I picked ictiescstcainiiscabblechaeunswisisialdlarminitiaiahds

Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137

SPs BF Wicsisiicdasusitehsscaisuniiasmbyrnpeneiseduesaiateadteniaeniplieebuaiadabie

Illinois v. City of Milwaukee, 599 F.2d 151 (7th Cir. 1979)

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

Illinois v. City of Milwaukee, 366 F. Supp. 298 (N. D. IIl.

I cascsdaestesits Jac aideisansaa kita cicickslanssiplivaidasglnaeiaatsaciniesaanmasiaalidadeishs

ht RSME SPU APACE BED RDSionbs ues te + Cena eae eee

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

Kulko v. Superior Court, 436 U.S. 84 (1978) ........ccccecceeeeeeee

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

Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541,

Be ee TED eiriiisctecietnientss cinennisteenteebeaemciniaaions

Leroy v. Great Western United Corp., __—. U.S. ___., 99

ee dena cseceoncitacaniesietncicspicsubenncepnsenicihenipidiaiiieamcade

Livingston v. Jefferson, 15 Fed. Cases 660 (No. 8411)

SO ccPREIIMI: POAT (PUNTER ss siach ninaechncbleondistd sad asibaebioemsiibacibiieaabin

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95

ERE 55 gt ETT REE MMe Servant FICS ee

BURP sictiarsssansnsisuibcahidetiasiansuaviijionnien vieneshtebnygenisnientiipanitiiaaatedines

IEE B suncunsssocesipiseecnsissnincsenieshsmmenipninauinaemiennniibavevaiiemss

Markham v. City of Newport News, Va., 184 F. Supp. 659

(E.D. Va. 1960), rev’d, 292 F.2d 711 (4th Cir. 1961).....

Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234

Fe Ce CR BED ecctieticionectesacennteesenaheinigeareninniaauinicene

22, 46-47

59, 60

i, 31, 37

38, 46,

passim

41, 43

63, 66-67

xii

Metropolitan Sanitary District v. United States Steel Corp.,

30 Ill. App. 3d 360, 332 N.E. 2d 426 (1975), cert.

EE ME Ee Pe 0 BF PO ovvnscecpusesciccsadssnssasecsessasysncessines

Mianus River Preservation Committee v. E.P.A., 541 F.2d

I i a alan tras rnsckissionanbieencstadendiencincesses

Miree v. DeKalb County, Georgia, 433 U.S. 25 (1977)........

Mississippi & Missouri Railroad Co. v. Ward, 67 U.S. (2

cic canpdtevapsononandtoensvesvesseqsosionsesesene

Missouri v. Illinois, 200 U.S. 496 (1906)...........ccccc cece cess eee

Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957).......

New Jersey v. City of New York, 283 U.S. 473 (1931),

decree mod., 290 U.S. 237 (1933) ...........ccccccssssssscecccessecece

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

New York State Department of Social Services v. Dublino,

a I OI os ciiebeuanteanerencavioasosesncesccoees

Ohio v. BASF Wyandotte, 2 ELR 20338 (N.D. Ohio 1972)

Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971)...

Parks Co. v. City of Decatur, 138 F. 550 (6th Cir. 1905) ....

Pennoyer v. Neff, 95 U.S. 714 (1878) .......ccce eee ceccsccceeeeeeeeeees

People v. City of Port Huron, 305 Mich. 153, 9 N.W.2d 41

Tees a ceeeknnapshesheosundnnte

People v. Republic Steel (South Chicago Works), No. 69

I I eas sccevewnsondnusccsscasbaseshbonbeosousees

People v. United States Steel Corp. (South Chicago

Works), No. 69 CH 3334 (Ill. Cir. Ct.) ....ccccceeesseseeeeees

People v. United States Steel Corp. (Waukegan), 72 C

RIES WME, BURL D sasicccssccnsnscvscsncsuecsisicocsdbesscaszense

People v. United States Steel Corp. (Gary), 72 CH 258

ro sas saunineldvisisoedsbanetnbbanees

People v. Youngstown Sheet & Tube Co., 71 CH 3818 (Ill.

a sesh enbnncnhpensens

People ex rel. Scott vy. United States Steel Corp., 40 Ill.

App. 3d 607, 352 N.E.2d 225 (1976) .......ecccseeeesseesseeeeees

Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S.

ail ccetuniaiiannsodncowedanesees

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ........

The Salton Sea Cases (California Development Co. v. New

Liverpool Salt Co.}, 172 F. 792 (9th Cir. 1909) ........00.....

Shaffer v. Heitner, 433 U.S. 186 (1977) ..0........ccccceceeseseseeeeee

passim

29, 60

10-11

11, 41, 52

xiii

State ex rel. Shevin vy. Tampa Electric Co., 291 So. 2d 45

AL HINER D5 a's icceidbniecuallan obese henetnehanceusetededdabinets

Steel v. Bulova Watch Co., 344 U.S. 280 (1952) 00...

Stream Pollution Control Board v. United States Steel

Cams, S12 F268 TOG CFU Cat. UDTS ) occcecorsncscsecssseccscentsss

Textile Workers Union of America v. Lincoln Mills, 353

OTF FO BOO FP veinsocnsncsnsisscstsvcsochasevsesnessseIScNcEECdapeEEtEtecssssins

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

110 (D. Vt.), aff'd., 487 F.2d 1393 (2d Cir. 1973), cert.

I Oe PC BTN ices veins tbttiasacdicenssbanerittonselecscoics

United States v. Ira S. Bushey & Sons, Inc., 346 F.Supp.

I WN ins cssika kanchelamsibineasahogbabhomticiianadarimoas

United States ex rel. Scott v. United States Steel Corp., 356

Ny Fh PE ts BIE D senicvrenkcieentetutewesecsinicissunsbanners

United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir.

gE Ree eHLES ats I vo ERO SR AERO SR

Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d

DRG, Fe GE, FREE. Bae 68 F OB ivvcassansercersesesssestcsccnenscesisnsnses

Vermont v. New York, 417 U.S. 270 (1974) once eeeceeeeeeeee

Village of Glencoe v. Metropolitan Sanitary District, 23

Ill. App.3d 868, 320 N.E.2d 524 (1974). eeeeeeee

Wallis vy. Pan American Petroleum Corp., 384 U.S. 63

ERE ERE 9 SE Seto ROE cape ee EN TO

Washington v. General Motors Corp., 406 U.S. 109 (1972)

White Star Mining Co. v. Hultberg, 220 Ill. 578, 77 N.E.

ST ciriciat lok aa onde scare taacdiacialiatlaihina ceabipuacatanbeboesien

Wisconsin v. Illinois, 388 U.S. 426 (1967) .........cccccccecceeeeeees

Wisconsin v. Illinois, 289 U.S. 395 (1933) wo... ceeccecseeeeeeees

Wisconsin v. Illinois, 281 U.S. 179 (1930) oo... eee ee cece ee eee

Wisconsin v. Pelican Insurance Co., 127 U.S. 265 (1888) ..

World-Wide Volkswagen Corp. v. Woodson, US.

EA a A, CIPD wicindesnnthcontbansidiedsitnnnsissinereiverin

Constitutional Provisions

Lk: MOOT, FUND. Dlliy G & senccsencsstinniintbacinintiisinesunbinousiioken

Statutes

Judicial Code, as amended

Be Ne ED ccd ietestsnadsandsnniscchaspnaanesanenspaiqanibaboes

RP TMs TRAN hej bvtaeihaidpcdatanbariwnsséuntncesinienserwieod sanshinns

42, 52, 65

33-34, 35-

41, 43

41,51

i, 21

ii, 21

XiV

Uo calasenidienepeennneminmtias 26

SR OD picasa cpnicsnncdviscvekénnicsunnsernalenainanianss 25, 62-63,

a A anlienaeeaneniebnuniied 31

Federal Water Pollution Control Act of 1956, P.L. 84-660,

87 SESSBIRREEE ESI ee SIE ea SURE Ot Oe RRO CRE Pre 4

Federal Water Pollution Control Act, 33 U.S.C. § 466........ 8

Federal.-Water Pollution Control Act Amendments of

ee er PR aethica cactus atibencprdinilaeeeicdeiachwaceaantaadsaiaanasiies i, ii, 13,

14, 22,

40, 41,

42-45,

Clean Water Act of 1977, P. L. 95-217 wo. ceeeeeeeeeeees iv, 40, 41,

Clean Water Act, 33 U.S.C. § 1251 et seq.

Re SE wih ob > CER eee eer eemrrnerean v, 24, 54,

nt ® ok! Bo |S SAR Eee oneriecesa on 54

§ 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A) ....... 48, 50

§ 301(b)(1)(B), 33 U.S.C. § 1311(b)(1)(B) ............ 48, 50

§ 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C)........... v, 23-24,

48, 50,

51, 53,

54 - 55,

ie es EO BUD ocianinsdctostinsdenvecctaevedinntnns’ 53

i a shapenmmanianiebapbaiion 48, 54

rs ae Sis 0 BEI vciccccnttncceccscasessssenecvecetiens 23-24, 51,

53, 55,

Ue CG he ee Rai ice B RUUD vncindcininsiesccesvabssincesntsebenin 23, 48, 50,

31. 3

Oe ee hy Fe Wee WE BE ED desc cncinceksencsccnsscocotepebeoonion 52

Oe A, Oe Bis eresLidnssosstnnndinsseciasinetediccintiiernens 42, 44, 65

§ 505(c)(1), 33 U.S.C. § 1365(C)(1) ec eeeeeeeeeeeee 65

Ns ee ae PIE OO Bveieshcsncscdcensaniiissinesenneneneeess 42, 45

Bibi fe BN eee ee ee 51

Ser itis OF Be Pbaidccestuuincdcuceubindaveadtensasnasecdsonconauih 40-41, 44,

Illinois Revised Statutes,

tas tihenenensmeadianiiomaemntisnailGaiie

aR TER re

TI cea niaeeintaiobnapdngiehnenlndnaibinasion

Bs ee Se EE OE BOI on sncnncnccnsiscnensvevececoonececnmnitpndeiniien

I I cision eats pesnicin smeegonisdcebaivatinnacinetiiahiiadipa

I PN dans cacnnncpneneesnetinninhnasanninnnabnhinnsbnssningsiininl

Regulations

40 C.F.R. Part 35, Subpart E, Appendix A, { 4b [43 Fed.

Reg. 44087 (September 27, 1978) ] 0... eeeesseeeeeeseeees

40 C.F.R. § 35.1550 [44 Fed. Reg. 30040 (May 23,

ESS SS ib Ee en eRe

Illinois Pollution Control Board Rule 602 .....................cceee

Wisconsin Water Quality Standards, N.R. 102.02...............

Miscellaneous

Conference. Pollution of Lake Michigan and Its Tributary

BI Crete SOS FC 1 DGG DP o....s. ccc cccesccccccnesssocevcccerasvecss

Conference, Jn the Matter of Pollution of the Interstate

Waters of the Grand Calumet River, Little Calumet

River, Calumet River, Wolf Lake, Lake Michigan and

Their Tributaries (March 1965 ) ...............0..ccccscccccccesecscess

1 Congressional Research Service, A Legislative His-

tory of the Water Pollution Control Act Amend-

ments of 1972, 93d Cong. Ist Sess. (1973)...........

4 Congressional Research Service, A Legislative His-

tory of the Clean Water Act of 1977, 95th Cong.

Currie, Enforcement Under the Illinois Pollution Law, 70

i IE I I a sinc Sessnnsbderscaninsie ipeslgenleesianins

The Federalist No. 81 (A. Hamilton ) (Cooke Ed. 1961)...

General Accounting Office, Many Water Quality Standard

Violations May Not Be Significant Enough to Justify

Costly Preventative Actions, CED-80-86 (July 2, 1980)...

Hart, The Relations Between State and Federal Law, 54

en ah, See, SE DO D. . ci ins oc aaculieeideuneeniinnebinuaioiss

Hart & Wechsler, The Federal Courts and The Federal

EE, I sn ccccenesbnnaniioieliondmiesddnbmavatiitenadecahiniih

24, 58-59

ii, 10, 13,

41-42

39-40

XVi

House Committee on Public Works and Transportation,

Case Law Under the Federal Water Pollution Control

Act Amendments of 1972, 95th Cong. Ist Sess. (1977)...

E. Messer, Jurisdiction of A Court of Equity Over Persons

to Compel the Doing of Acts Outside the Territorial

Limits of the State, 14 Minn. L. Rev. 494 (1930)............

Milwaukee Metropolitan Sewerage District, Combined

Sewer Facility Plan (February 1980) .........cecccccceeeeeees

Mishkin, Some Further Last Words on Erie—The Thread,

BF a MU BONES CB OFTEN cick cecccnsscnoncescececccdiseceonsccsecee

Mishkin, The Variousness of “Federal Law”: Competence

and Discretion in the Choice of National and State Rules

for Decision, 105 U. Pa. L. Rev. 797 (1957) .......ee eee.

1 Moore’s Federal Practice, § 0.142[2.1] (2d Ed. 1979).....

Note, Local Actions in the Federal Courts, 70 Harv. L.

aes ies aicaddcyciaccueresiusssisicaceicsienyss

Note, The Original Jurisdiction of the United States Su-

preme Court, 11 Stan. L. Rev. 665 (1959)...

W. Prosser, Law of Torts (4th Ed. 1971) .........ceeeeeee eee:

Report of Special Master Albert Maris in Wisconsin v.

Illinois, adopted 388 U.S. 426 (1967)... eceeeeeeeeees

U.S.E.P.A., Program Requirements Memorandum, PRM

75-34 (formerly P. G-61 ) (1975) wc. eeceecceceeeeeeeeeeeeeees

Wright, Miller & Cooper 15 Federal Practice & Procedure

aia v ahs iaitap Van ebicbsabscasesesnuscaesrapeencee

R. Zener, Water Pollution Control, in Federal Environ-

1 cendisnadbhasconctichtangoecies

STATUTORY PROVISIONS INVOLVED

43-44

51, 56

32-33

64, 65

55-56

The following provisions are lengthy and are set out in a

separate appendix.

I. U.S. Constitution

A. Article III, Section 2

B. Article VI, cl. 2

II. Federal Statutes Governing Subject Matter Jurisdiction

and Choice of Law

A. 28 U.S.C. § 1251

B. 28 U.S.C. § 1652

XVil

III. State Statute Relating to Causes of Action Asserted

A. Ill. Rev. Stat. ch. 111%, § 1012

B. Ill. Rev. Stat. ch. 14, §§ 11, 12

IV. Statutes With Respect To In Personam Jurisdiction

A. Fed. R. Civ. P. 4(e)

B. Ill. Rev. Stat. ch. 110, §§ 16, 17

V. Statute Governing Venue

A. 28 U.S.C. § 1391(b)

VI. Statutory Provisions Relating to Defenses by Mil-

waukee

A. Cost-Effective

1 33 U.S.C. § 1292(2)(B), (C)

2. 40 C.F.R. Part 35, Subpart E, Appendix A

[43 Fed. Reg. 44087 (September 27, 1978) |

B. Statutory Provisions Relating to Congressional

Intent to Preserve the Application of State Statu-

tory Law and Common Law to Impose More

Stringent Antipollution Control Through Either

Administrative or Judicial Action

1 33 US.C. § 1365(e)

2. 33 US.C. § 1370

No. 79-408

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

CITY OF MILWAUKEE, THE SEWERAGE COMMISSION

OF THE CITY OF MILWAUKEE, AND THE

METROPOLITAN SEWERAGE COMMISSION OF THE

COUNTY OF MILWAUKEE,

Petitioners,

vs.

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 OF RESPONDENT

PEOPLE OF THE STATE OF ILLINOIS

STATEMENT OF THE CASE

Introduction

This controversy has its factual origins in the inestimable

value of Lake Michigan as the principal source of water

recreation and drinking water supply for millions of residents of

northern Illinois. To the congested urban population of

northeastern Illinois, the Illinois shoreline of Lake Michi-

gan—particulerly in the stifling heat of a midwestern sum-

mer—represents an invaluable natural treasure.

Unfortunately, the Illinois waters of Lake Michigan are

extremely vulnerable to discharges of pollutants. Pollutants

discharged into Lake Michigan are not uniformly dispersed into

the Lake. Instead, pollutants are often transported up or down

the shoreline depending on the direction of wind driven shore-

parallel currents. Under winds of various speeds and per-

sistence these shore-parallel currents can carry a polluted mass

up to 60 miles along the shoreline [PI.Ex. 20 at 115-116].

Milwaukee Harbor is only 37 miles from the Illinois state line

(TR. 1020), and the defendants’ South Shore treatment plant is

only 25 miles from the state line (See Map exhibit, Pl.Ex. 137;

Pet. App. at B-10 to B-12).*

Milwaukee’s witnesses admit that pollutants discharged by

Milwaukee will be transported into the Illinois waters of Lake

Michigan.

“Q. There is no question that everything you have seen

indicates that a substance which is placed at Milwaukee

will reach Illinois waters, isn’t that right?

A. Correct, at some frequency.”

Dr. Donald Pritchard, T.R. 7175

There is a second phenomenon which increases the haz-

ards of pollution in Lake Michigan. Coupled with the transport

of pollutants over long distances by these shore-parallel cur-

rents is the fact that large masses of pollutants discharged into

the Lake disperse very slowly. Under adverse conditions the

dilution from the original pollution strength could be as little as

15% at the time Milwaukee’s pollution reached the state line

(Pet. App. B-18). Defendants’ witnesses at trial—using dilu-

tion tests they themselves performed—admitted that dilution of

pollutants discharged at Milwaukee would be as low as 5 to 1

when they reached Illinois waters (TR. 8920; Pet. App. B-18).

* Hereinafter the Appendix to the Petition for Certiorari is cited

as “Pet. App.,” the Joint Appendix as “J.A.,” and the Appendix to

this brief as “Ill. App.”

Illinois’ concern over contamination of Lake Michigan has

focused on three general categories of pollutants: 1) industrial

contaminants; 2) nutrients; and 3) enteric pathogens.

Industrial Contaminants. While serving as an invaluable

recreation resource and source of drinking water, southern Lake

Michigan has also served the water supply needs of a vast

industrial complex concentrated in south Chicago and the

Indiana shoreline of Lake Michigan. Within this Chicago-Gary

complex sits the largest production capacity for steelmaking in

the United States as well as extensive oil refining facilities. In

years past these industrial facilities used Lake Michigan as a

waste sink, dumping into the Lake each day billions of gallons

of wastewater contaminated with oil, greases, heavy metals and

ammonia. This industrial contamination had several adverse

effects: 1) it was harmful to the animal life in the

Lake—particularly the bottom dwelling organisms essential to

the food chain in the Lake; 2) it caused taste and ordor

problems in municipal water supplies; and 3) it was hazardous

to the health of persons who consumed the water.

Nutrients. Nutrients, particularly phosphorus, dramatical-

ly affect the water quality of a lake. Lakes are classified by

water chemistry experts and biologists as to their “trophic”

status, i.e., the quantity and quality of nutrients and biological

material in the lake (TR. 2823). In an “oligotrophic” lake the

water is clear and clean; in a “eutrophic” lake the water is

cloudy and murky from the growth of suspended plant life

known as phytoplankton (TR. 2824).

As a lake becomes more and more “eutrophic,” objection-

able plants are found along the shores, and when they die off,

they create obnoxious smells (TR. 2826). Low levels of

unobjectionable suspended algae are replaced by obnoxious

forms of algae that can cause a scum on the water surface (TR.

2837). These obnoxious forms of algae can cause severe taste

and odor problems in public water supplies (TR. 12527). The

nuisance and water quality degrading potential of eu-

trophication is not merely hypothetical. Communities along the

entire lakeshore now experience taste and odor problems

caused by algae in the water they get from Lake Michigan (TR.

13530). This eutrophication process also poses a threat to fish

spawning grounds (TR. 12727).

Lake Michigan is becoming more and more eutrophic

(TR. 2883, 3297). Several experts testified that, unless correc-

tive action is taken to reduce the nutrient load from sewage

plants, southern Lake Michigan is likely to become like western

Lake Erie or Green Bay, which are notoriously degraded bodies

of water (TR. 12644, 12647).

Enteric Pathogens. Raw and inadequately treated sewage

contain enormous numbers of pathogenic’ organisms, both

bacteria and viruses. Any urban center like Milwaukee contains

persons who are infected with pathogens and who are shedding

bacterial and viral pathogens through their feces (TR. 3101,

2174).

Bacteria and viruses are two totally different pathogenic

groups. Within the bacteria group there are hundreds, if not

thousands, of different strains of pathogenic bacteria. For

example, Salmonella has over 400 different subtypes, and

Shigella has over 600 different subtypes (TR. 3053). Because

of the enormous number of individual bacterial pathogens, no

single test can identify the bacterial pathogens which may be

present in water (TR. 3056, 3097). Instead, public health

Officials use an indicator—a nonpathogenic bacteria called

“fecal coliform’”—which has been statistically shown to be

present in fecally contaminated water when pathogenic bacteria

are also present.2

1The noun “pathogen” or the adjective “pathogenic” refers to

the disease-causing nature of these organisms (TR. 2155).

2 Unfortunately, the absence of fecal coliform bacteria has no

correlation with the presence of viruses. Even a finding of no fecal

coliform does not mean viruses are not present—viruses have been

found in water free from fecal coliform (TR. 2201).

Viruses are the more serious group of fecal pathogens. A

virus is an incredibly small object less than one millionth of an

inch in diameter (TR. 10171). A single gram—1/454 pound

—of human feces from an infected individual can contain

millions of viruses (TR. 10278). Depending on the level of

disease within the community, raw sewage can contain from

approximately seven thousand to several hundred thousand

viruses per liter (TR. 2180). Viruses are highly infectious and

as little as one virus can cause disease (JA 157-158).

Many people infected by enteric viruses (viruses which

pass from the body in feces) do not show any disease symp-

toms. Viruses simply multiply in the lining of the gut and are

excreted with the feces without causing any disease symptoms

(TR. 2157). A thousand people may become infected before

one shows a clinical symptom of disease.2 Yet these

asymptomatic infected carriers pass on just as many viruses as a

diseased person (TR. 2145, 2157, 2174).

The common denominator of all these enteric viruses is

that they leave the body of a carrier by means of the feces (TR.

2147). Thus, fecal material is a necessary link in the trans-

mission of the virus to the next victim. This is called “‘fecal-oral

transmission” (TR. 2155).

3 Actual disease symptoms only appear when a particular virus

enters the bloodstream through the lymph glands (TR. 2143) and

attacks a “target” organ, such as the heart, lungs, brain or central

nervous system (TR. 2157). Polio is an enteric virus that attacks the

tissue of the spinal cord (TR. 2161, 2165). Coxsackie virus causes

pleurodynia—a disease of the covering of the lungs which causes a

great deal of inflammation and pain (TR. 2164). Coxsackie B virus

has as its target organ the muscle tissue of the heart causing such

diseases as pericarditis (TR. 2167) and myocarditis. Myocarditis is a

particularly severe and sometimes fatal heart disease in young

children (TR. 2160). Coxsackie viruses also have been found to

increase the incidence of birth defects (TR. 2167) and are suspected

of triggering diabetes in susceptible individuals (TR. 13211). Hepa-

titis A is an enteric virus which attacks the liver (TR. 2168).

Viruses are incredibly difficult to detect with accuracy (TR.

12333). Beyond the difficulties of detecting for virus are the

diagnostic and epidemiologic difficulties in tracing an enteric

disease (i.e., caused by fecal-oral transmission). Because of the

epidemiological problems of hidden carriers (infected persons

without symptoms who may be in the chain of infection), lack

of diagnosis, and lack of reporting (most cases are not report-

ed), it is difficult, if not impossible, to trace fecal pathogen

infection back to a source (TR. 2192, 13195-13198, 13223-

13224).

Contrary to the statements by Milwaukee, Illinois is cur-

rently suffering fecal contamination of its northern Illinois

beaches (PI.Ex. 172, 173; TR. 3111, JA 341). Moreover,

Illinois residents are currently suffering enteric bacterial and

viral diseases (TR. 2155; Df. Ex. 83).

A. Illinois’ Efforts To Abate Pollution Of Lake

Michigan

1. The Lake Diversion Studies and the Maris Report

Illinois did not fully appreciate the seriousness and the

interstate transmission of these pollution problems until

Wisconsin and other Great Lakes States reopened the lake

diversion litigation in 1959 asking that Chicago be ordered to

return its treated sewage to Lake Michigan. Wisconsin v.

Illinois (Nos. 1, 2 and 3 Original).

As part of the hearings in that case, the United States

Public Health Service conducted extensive studies of Lake

Michigan. These studies, conducted in the early 1960’s,

disclosed serious interstate pollution problems in Lake Michi-

gan as to nutrients, enteric pathogens and industrial pollutants.

The results of these studies—particularly as to nutrients, enteric

pathogens, and pollutant transport—were incorporated into

extensive findings of fact filed by Special Master Albert Maris

on December 8, 1966, and adopted by this Court on June 12,

1967 (388 U.S. 426). Judge Maris’ report clearly sets forth the

serious pollution problems plaguing Lake Michigan. ( See, e.g.,

Report of the Special Master at 183-190 on nutrient eu-

trophication. )

Judge Maris’ findings as to virus are extremely pertinent

here. As to drinking water supplies at water treatment plants,

he concluded:

“..It is known that virus particles can pass through the

filtration process under conditions which might happen

unintentionally for short periods of time in actual water

treatment plants under modern practices, and that the

viricidal efficiency of chlorine is considerably less than for

bacteria, and is subject to wide variations. There is not

known at this time any technique adaptable to field

operating conditions which can insure that consistent

removal of all viruses from a raw water supply subject to

sewage pollution .... it would not be justifiable from the

viewpoint of public health to subject any water supply to any

contaminant known to contain or thought likely to contain

pathogenic viruses, if an alternative method of disposing of

the contaminant is available.”

Id. at 205 (emphasis added )

As to the epidemiologic difficulty of attributing viral

disease to a specific fecal source, Judge Maris found:

“Public health statistics are commonly limited to a few

diseases which are serious and epidemic, and will not

indicate significant differences in the incidence of viral

diseases as between communities which use polluted sources

of water and those which do not.”

Id. at p. 205, 206 (emphasis added )

The extensive Lake Currents Report (1967) done by the

Public Health Service as part of the diversion case, showed that

pollutants could be transported great distances with very little

dilution. (Report of Special Master, at p. 203-204). The

scientist who conducted these studies was Captain James

Verber of the United States Public Health Service, who testified

as a witness for Illinois at the trial below. (Pet. App. B-11).

2. Illinois’ Precarious Position

Illinois’ Lake Michigan shoreline is relatively short

—roughly 60 miles—and is sandwiched between States which

have been nortoriously lenient in policing pollution of Lake

Michigan by industrial and municipal polluters in their own

States.

Near the Indiana/Illinois border sits a vast complex of

steel mills which in years past dumped billions of gallons of

contaminated wastewater daily into Lake Michigan. To the

north, less than 40 miles from the Illinois/ Wisconsin border sits

the Milwaukee metropolitan area which, as the record in this

case shows, discharges billions of gallons of raw and improperly

treated sewage annually into Lake Michigan.

3. The Effort At Administrative Abatement

Through the Federal Water Pollution Control

Act

Prior to seeking judicial abatement against Milwaukee and

other polluters in southern Lake Michigan, Illinois attempted to

abate these discharges through extensive efforts at conciliation

and negotiation under the administrative mechanisms of the

Federal Water Pollution Control Act. 33 U.S.C. § 466. In

1965, Illinois participated in a two-state enforcement confer-

ence brought pursuant to Section 8 of the Federal Water

Pollution Control Act.4 This conference concluded that, inter

alia, “‘Interstate pollution endangering the health and welfare of

persons in a state other than that where the discharges originate _

exists in the waters of ... Lake Michigan” (p. 1573) (emphasis

added ).

Unfortunately, few if any clear enforceable commitments

were made to abate this interstate pollution. Even as to the

weak requirements that were set, the individual States would

4 Conference, In the Matter of Pollution of the Interstate Waters

of the Grand Calumet River, Little Calumet River, Calumet River,

Wolf Lake, Lake Michigan and Their Tributaries (March 1965.)

often set deadlines—only to unilaterally extend them whenever

the polluters desired.

Illinois tried again in 1967, this time asking that all of the

pollution discharges into Lake Michigan be the subject of a

conference under the Federal Water Pollution Control Act.

Secretary of Interior Udall agreed:

“Pollution subject to abatement under the Federal

Act is pollution of navigable and interstate waters which

endangers the health and welfare of any person. I have

reports that such pollution is occurring.”

Conference, Pollution of Lake Michigan and Its

Tributary Basin, (First Session) Vol. 1, p. 107

(emphasis added )

Secretary Udall recognized the interstate nature of the

problem: “Pollution crosses political boundaries; so must solu-

tions.” Jd. at 105. He gave an example: “Oil that spills in the

lake at Gary oozes onto the beaches at Milwaukee.” Jd.

Unfortunately, Secretary Udall’s aggressive concern was

not reflected in the actions of the conference. The proceedings

dragged on from early 1968 for the next three years in a

fruitless round of meetings characterized by the same basic

flaws as the earlier conference. Most of the clean up com-

mitments were extremely vague and incapable of enforcement.

There was rarely a commitment to achieve specific re-

sults—either by municipal or industrial polluters. Even where

there was a small portion of a commitment which was specific,

the States would administratively allow polluters to ignore

deadlines with impunity.

4. Illinois Seeks Judicial Abatement

Frustrated by the wholly ineffective conference procedure,

the Illinois Attorney General and the Illinois legislature turned

to state judicial remedies expressly preserved by Congress in

the Federal Water Pollution Control Act, P.L. 84-660, § 8(b).

First in 1969, the legislature statutorily confirmed the common

law power of the Attorney General to seek judicial abatement

of pollution independent of claims of administrative remedies,

primary jurisdiction and administrative permits. Ill. Rev. Stat.,

ch. 14, §§ 11, 12 (Ill. App. 4a).

Second, the legislature passed the Illinois Environmental

Protection Act, ch. 111%, § 1001 ef seg. which specifically

provided that no person shall:

“(a) Cause or threaten or allow the discharge of any

contaminants into the environment in any State so as to

cause or tend to cause water pollution in IJIlinois, either

alone or in combination with matter from other

sources...”

Ill. Rev. Stat., ch. 111%, § 1012 (emphasis

added)

Using these statutory tools and state common law power to

abate public nuisances, Illinois brought a series of abatement

actions in Illinois state courts against Illinois and out of state

major polluters of Lake Michigan. Invariably these abatement

actions disclosed that the pollution control requirements im-

posed by administrative agencies were often little more than a

cruel hoax.5

In contrast, this judicial enforcement program for Lake

Michigan was extremely successful. As a result of court orders,

several of the most severe industrial polluters of Southern Lake

Michigan—both in Illinois and Indiana—have constructed

modern state of the art pollution control systems, typically

involving both recycling and filtration of waste waters. In each

case, detailed time schedules were set with firm enforceable

deadlines.§

5 For example, both in Illinois and Indiana throughout the 1960’s

and 1970’s, the basic agency order for pollution control for virtually

all the steel rolling mill operations—which poured millions of pounds

of oil and metals into Lake Michigan—was to combine the multiple

outfall pipes into one or two big pipes and add water for dilution.

6 See, e.g., People of the State of Illinois v. United States Steel

Corp. (South Chicago Works), Circuit Court of Cook County, 69 CH

3334, recycle with zero discharge to Lake Michigan; People of the

(Footnote continued on following page)

In these cases, the Illinois courts have uniformly rejected

every one of the procedural ploys raised here. See, e.g.,

Metropolitan Sanitary District v. United States Steel Corp., 30

Ill. App. 3d 360, 332 N.E.2d 426 (1975), cert. denied, 424 US.

976 (1976); Peopie ex rel. Scott v. United States Steel Corp., 40

Ill. App. 3d 607, 352 N.E.2d 225 (1976).7

(Footnote continued from previous page)

State of Illinois v. Republic Steel (South Chicago Works), Circuit

Court of Cook County, 69 CH 3675, recycle with zero discharge to

Lake Michigan; People of the State of Illinois v. United States Steel

Corp. (Waukegan), United States District Court for the Northern

District of Illinois, Eastern Division, 72 C 2503, recycle with zero

discharge to Lake Michigan; People of the State of Illinois v.

Youngstown Sheet & Tube Company (East Chicago, Indiana), Circuit

Court of Cook County, 71 CH 3818, complete recycle with sand

filtration of remaining wastewater discharged to Lake Michigan;

People of the State of Illinois v. United States Steel Corp. (Gary

Works), Circuit Court of Cook County, 72 CH 258, complete recycle

with sand filtration of remaining wastewater discharged to Lake

Michigan. Many of these remedial court ordered programs have

either been completed or are currently under construction.

7 In invoking the power of the court to order the performance of

remedial acts outside its territorial jurisdiction by a person over whom

the court had in personam jurisdiction, Illinois relied on the following

authority: see Alexander v. Tolleston Club, 110 Ill. 65 (1884); White

Star Mining Co. v. Hultberg, 220 Ill. 578, 77 N.E. 327 (1906); Craft

v. I. D. & W. Ry. Co., 166 Ill. 580, 46 N.E. 1132 (1897); The Salton

Sea Cases (California Development Co. v. New Liverpool Salt Co.),

172 F. 792 (9th Cir. 1909); see E. Messer, Jurisdiction of A Court of

Equity Over Persons to Compel the Doing of Acts Outside the Territo-

rial Limits of the State, 14 Minn. L.Rev. 494 (1930). See also Steele

v. Bulova Watch Co., 344 U.S. 280, 289 (1952). Illinois’ use of its

statutory prohibition against water pollution and its state common law

nuisance power against out of state polluters of Illinois waters was

given express approval by this Court in its decision in Ohio v.

Wyandotte Chemicals Corp., 401 U.S. 493 (1971). See also Ohio v.

BASF Wyandotte, 2 ELR 20338 (N.D. Ohio 1972).

B. Illinois y. Milwaukee In The Supreme Court

Round One

With few exceptions, Illinois suits to abate Lake Michigan

pollution were brought in state courts. One exception was

Illinois v. City of Milwaukee, No. 49 Original filed December 9,

1970. Illinois’ position was clear: the State wanted to invoke

the original jurisdiction of this Court to avoid the delays

resulting from “long drawn out contests in the lower courts.”

Illinois Statement and Brief in Support of Motion to File a Bill

of Complaint, at 15. In support of its motion for leave to file,

Illinois likened the suit to one against the State of Wisconsin

itself, rendering jurisdiction a “constitutional imperative.” Jd. at

15-16.

The defenses raised by the Milwaukee defendants in

Illinois v. Milwaukee were virtually identical to those now

raised ten years later: (1) Illinois should be barred from

proceeding in the Supreme Court because the three year old

Federal Water Pollution Control Act conference provided an

adequate administrative remedy. County Sewerage Commis-

sion Brief, at 8-9. (2) The Secretary of Interior had initiated

abatement action and Milwaukee was under state agency

abatement orders. Jd. at 4. (3) The Court should bar judicial

action and invoke the doctrine of primary jurisdiction. Jd. at 9.

(4) Illinois should be required to exhaust its administrative

remedy before going to Court. Jd. at 9. (5) The only judicial

remedy available against Milwaukee was judicial review of the

Secretary’s actions in an action under the Administrative Proce-

dure Act. City Sewerage Commission Brief, at 6.

On April 24, 1972, this Court rendered its decision in

Illinois v. Milwaukee, 406 U.S. 91. The Court rejected sub

silentio Milwaukee’s claims of exhaustion of administrative

remedies and primary jurisdiction, and declared that an inter-

stitial federal common law was available as a supplemental

judge-made remedy to effectuate the Congressional purpose in

the Federal Water Pollution Control Act and related federal

statutes dealing with water quality. (See discussion, 32-45

infra).

C. The Procedural History Of This Case

1. The Complaint

Immediately after this Court’s 1972 decision, Illinois filed a

complaint against Milwaukee in the United States District

Court for the Northern District of Illinois. The complaint had

three separate counts, each setting forth a different substantive

right. Two counts had the source of the right asserted in state

law as articulated in Ohio v. Wyandotte Chemicals Corp., and

one count was based on the interstitial federal common law

articulated in Jilinois v. Milwaukee: a) Count I charged Mil-

waukee with the creation of a federal common law nuisance; b)

Count II charged Milwaukee with violation of statutory prohi-

bitions against water pollution contained in the _ Illinois

Environmental Protection Act, Ill. Rev. Stat., ch. 111%, § 1001

et seq.; and c) Count III charged Milwaukee with the creation

of a common law nuisance under Illinois law.

2. Milwaukee’s Pre-Trial Maneuvers

For four years, Milwaukee desperately tried to avoid trial

by a virtual blizzard of procedural and substantive arguments

(JA 1-9).

Milwaukee moved to dismiss for lack of in personam

jurisdiction and improper venue.

Coupled with this motion was the claim that Milwaukee

should be permitted to discharge raw sewage because the

discharge of raw sewage had been an accepted practice in the

United States for 200 years.

Milwaukee also asked that the complaint be dismissed and

that Illinois be required to take its complaint to the Great Lakes

Basin Commission.

With the passage of the 1972 amendments to the Federal

Water Pollution Control Act, Milwaukee moved to dismiss the

complaint on the ground that the 1972 amendments preempted

the federal common law of nuisance.

In May 1976, after a trial date had been set, Milwaukee

moved: a) to declare the action a class action with all polluters

of Lake Michigan as a class; b) to join all pollution sources of

Lake Michigan; and c) to declare the case a complex case and

postpone the trial.

Again in May 1976 Milwaukee filed another motion to

dismiss arguing that the permits issued by Wisconsin pursuant

to the 1972 FWPCA amendments preempted this action.

In July 1976, Milwaukee again filed a motion to postpone

trial date.

In late 1976, shortly before the scheduled trial date,

Milwaukee filed a mandamus petition with the United States

Court of Appeals asking that the trial be postponed.

Milwaukee’s approach to these procedural arguments is

illustrated by a pre-trial memorandum written by Milwaukee

trial counsel during late 1976, when trial was rapidly approach-

ing:

“It is important to stress at the outset that the practical

chance of obtaining any form of pretrial appellate relief

even simply in terms of additional trial delay is extremely

slim. Nonetheless, if we can afford to devote the necessary

manpower, an aggressive appellate program combined with

a further motion program before the District Court may

spread more thinly the time our opposition lawyers can

devote to trial preparation and wear down their energies in

this matter a bit.”

(Ill. App. 104a) (emphasis added )

* * x

There is also no discussion here of the possibility of drafting

up a raft load of third-party complaints and seeking leave of

the District Court pursuant to Rule 14, Federal Rules of

Civil Procedure, for service of same upon other polluters of

the lake and of the Milwaukee River.

(Ill.App. 113a) (emphasis added )

* * *

... If it is felt we can spare the time, it would appear that

an aggressive pretrial mandamus and appellate program

would at least have the positive effect of forcing our

opposition to fight the battle on many fronts and thus,

perhaps, diluting their efforts a bit. Certainly, it is hard to

see what we would lose by such an approach.

(Ill. App. 113a) (emphasis added )

Only when the mandamus petition and all of the other

procedural maneuvers were finally put to rest was Milwaukee

forced to trial.

3. The Evidence at Trial

As two courts have held after exhaustive reviews of the

exhibits and testimony, the evidence of Milwaukee’s pollution

of Illinois waters of Lake Michigan was overwhelming. Both

extensive test data and the testimony of scientists—including

admissions by defendants’ own witnesses—established the fol-

lowing points.

Milwaukee, through overflow devices in its separate sani-

tary sewer area and its Combined Sewer Area discharges

enormous amounts of raw sewage into Lake Michigan. Addi-

tionally, defendants’ overloaded treatment plants also dis-

charge huge quantities of improperly treated sewage into Lake

Michigan (Pet. App. B-2—B-10). These raw and inadequately

treated fecal wastes contain billions of pathogenic bacteria and

viruses (Pet. App. B-8).

These fecal wastes—and the bacteria and pathogens with-

in them—are periodically transported by prevailing shore-

parallel currents into the Illinois waters of Lake Michigan.

Defendants’ own tests of current speeds, direction and per-

sistence confirm this fact, and defendants have admitted that

Milwaukee’s pollution discharges reach Illinois waters (Pet.

App. B-10—B-17).

Defendants’ own tests as well as their experts’ own admis-

sions establish that low dilution of these substances occurs and

that hazardous concentration of these pathogens still remain

when they reach Illinois waters (Pet. App. B-18—B-19).

Contrary to Milwaukee’s claims, there is direct evidence of

fecal contamination at Illinois beaches directly south of the

Wisconsin line (Pl. Ex. 172, 173; Pet. App. B-19—B-22).

Contrary to Milwaukee’s claims, there is direct evidence of

enteric diseases being suffered by [Illinois citizens; diseases

which are necessarily caused by fecal-oral transmission (Df. Ex.

83; TR. 2217, 13228).

In addition to the public health concerns, Milwaukee

sewage contains large amounts of phosphorus—a critical nutri-

ent for the growth of plant life in Lake Michigan. From its

treatment plants alone, Milwaukee discharges over one million

pounds of phosphorus a year—50% of the sewage load of

phosphorus discharged into all of Lake Michigan (TR. 12929).

No one can estimate how much more phosphorus comes from

the raw sewage overflows. Nutrients, particularly phosphorus,

dramatically accelerate the eutrophication problems of the

Lake. Communities along the entire lakeshore now experience

taste and odor problems caused by algae in the water they get

from Lake Michigan (TR. 13530). This increasing eu-

trophication also poses a hazard to fish spawning grounds (TR.

12727).

In response to Milwaukee’s attempts to disparage the trial

judge and to take out of context isolated portions of his

findings, Illinois directs the Court to the following sources of

evidentiary analysis: (1) the entire District Court findings of

fact (Pet. App. F-1—F-30); (2) the incredibly detailed review

of the evidence by the Court of Appeals. (Pet. App. A-26—A-

40, B-1--B-32); (3) the Supplemental Memorandum of the

State of Illinois filed pursuant to the Order of the Court of

Appeals of May 26, 1978 (JA 118-196, 331-349).

4. The Judgment of the District Court on Liability

After hearing months of testimony and reviewing hundreds

of exhibits, the District Court entered judgment on all counts of

Illinois’ complaint, finding that defendants’ discharges con-

stituted: (a) a federal common law nuisaice; (b) a violation of

the Illinois Environmental Protection Act; and (c) a common

law nuisance under Illinois state law. (Pet. App. F-24, see also

Pet. App. F-2).

5. The Remedy Ordered by the District Court

Having found liability, the District Court entered a judg-

ment order designed to abate the nuisance. The District Court’s

remedy with respect to the elimination of Chease-causing

organisms® was in two parts:

a. Collection. The District Court ordered that the raw

sewage be collected for treatment instead of being discharged

raw into Lake Michigan.

(i) The Separated Sewer Area. Approximately 95% of the

420 square mile sewer collection systems in Metropolitan

Milwaukee is a so-called “separated” system. Only 5% of the

area is served by combined sewers—the so-called “CSO” area.

In the Separated Sewer system, the sanitary sewage by design is

carried to the treatment plant for treatment and separate storm

sewers carry off storm water from roofs, yards, and streets to

public waters. In Milwaukee, the sanitary sewer collection

system in this separated area has become severely overloaded.

Not the least cause of these hydraulic overloads was

defendants’ conscious practice of building larger diameter

sewers in outlying areas which were connected to smaller

diameter sewers leading to the treatment plant—resulting in

more sewage flow than the pipe can handle (TR. 139-140, 333-

334).

In the 1950’s Milwaukee began to build overflow devices

in the Separated Sewer Area to allow these increasing fecal

8 To abate the eutrophication nuisance, the District Court or-

dered an effluent limitation /ess than 1 mg/1 phosphorus which would

be “the inevitable consequence of the type of advanced treatment”

being ordered to destroy disease bearing organisms (Pet. App. F-26).

loads into local streams and into Lake Michigan (TR. 131).9 At

the present time, Milwaukee (the City Sewerage Commission )

maintains 50 of these overflow devices in the interceptor sewer

system for the separated area (TR. 134), and the City of

Milwaukee maintains 78 overflow devices in the separated area

on the local sanitary collector sewers.

As to the Separated Sewer Area, the Judgment Order

entered by the District Court and the permit requirements

issued by the State of Wisconsin are identical to Illinois

Requirements—elimination of the overflows (JA 358, 379, 416,

438; Ill. App. 57a, 79a).19 The only real difference is that the

state permit has no effective enforceable deadline, whereas the

Judgment Order entered by the District Court has a specific

deadline— 1986.

(ii) Combined Sewer Area (CSO). As to the portions of

the sewer area containing combined sewers (CSO), the Judg-

ment Order provides that Milwaukee collect, store and treat the

sewage from the CSO (JA 358-359). The District Court did not

select or dictate the method or the time schedule for achieving

collection of sewage (Pet. App. F-26). The evidence had

established several alternatives for effective collection, in-

cluding:

1. Sewer separation, e.g., taking the storm drain-

age—intentional or unintentional—out of the combined sewer

and leaving an adequate sanitary sewer to carry the sewage to

the plants."

8Contrary to Milwaukee’s unsupported claim that overflows

from such a system are largely “storm water runoff”, fecal coliform

counts in the sewage discharged from Milwaukee’s sewage system

overflows have been recorded as high as 23 million per 100 milliliter

(Pet. App. B-9). The effluent limit for supposedly safe levels of fecal

coliform is 200 per 100 ml.

10 Within the context of the Amended Judgment Order, “elimi-

nate” means to treat the sewage to the level of secondary treatment

(30/30) with disinfection.

1A generalization is often made that sewer separation is too

expensive even though it is the surest way to provide environmental

protection. Ironically, here Milwaukee studies have shown that

separation compares favorably in cost to other systems.

2. Collection, Storage, Treatment (CST). Rather than

separate the storm drainage from the sanitary waste, the design

here is to collect the mixture of storm water and sewage, store

it, and then gradually pump the stored wastes for treatment.

Milwaukee—not the District Court—then proceeded to

select a collection, storage, and treatment (CST) system as the

basis of collection. The Judgment Order of which Milwaukee

now complains was prepared by Milwaukee lawyers and

engineers (with plaintiffs’ participation) and submitted to the

District Court for approval on November 14, 1977. The

Judgment Order expressly provides for modification if there is a

lower cost, equally effective alternative (JA 360).

Milwaukee also selected the timetable for collection and

correction of raw sewage CSO overflows. This timetable calls

for a staged program of overflow correction which will be

completed by 1989. Having negotiated the timetable with

plaintiffs, having stipulated as to the feasibility of the timetable

(Pet. App. E-2) and having submitted the timetable to the

District Court, Milwaukee can hardly complain about the

timetable. The Judgment Order’s 1989 deadline should be

compared to the open ended deadline in the Dane County

stipulation which extends into the year 2020.

b. Treatment. The District Court then ordered that all of

the raw sewage—once collected—be treated to destroy the

disease-causing organisi.is in the sewage. The level of treat-

ment ordered by the District Court is not at issue in Mil-

waukee’s Petition. The appellate court reversed the District

Court’s treatment order on the extra-record and erroneous

factual assumption that “secondary” treatment—established as

minimum treatment by the Clean Water Act, 33 U.S.C. §§ 1251

et seq.—would destroy viruses. This assumption has no factual

support in the record and indeed is contradicted by evidence in

the record. Appellate courts cannot make factual conclusions

which have not been the subject of evidentiary proof in the trial

court and which cannot be judically noticed. Borden Farm

Products v. Baldwin, 239 U.S. 194, 208-209 (1934). The

appellate court’s action is the subject of Illinois’ pending

Petition for a Writ of Certiorari, No. 79-571.

6. The Decision of the Court of Appeals

The Court of Appeals conducted an intensive independent

review of the facts and affirmed the District Court both as to

liability and the remedy ordered for sewage collection. (Pet.

App. A-1—A-48, B-1—B-32).

SUMMARY OF ARGUMENT

This case is hopefully the final stage in an incredible 13

year Odyssey by the State of Illinois to abate the gross

discharges of raw and improperly treated sewage by Milwaukee

into the Illinois waters of Lake Michigan. However, the

decision in this case will have major impacts far beyond the

prevention of water pollution. The Court’s decision in this case

necessarily involves several major constitutional and statutory

issues which affect all suits between a State and a citizen of

another State.

A. Legal And Constitutional Framework For Il-

linois’ Claims

This Court cannot properly evaluate the arguments raised

by Milwaukee without a thorough examination of the subject

matter jurisdiction, choice of law and supremacy questions

created under the Constitution and Judicial Code when a State

sues a citizen of another State. Directly involved in this case are

the constitutional choice of law principles mandated by Erie v.

Tompkins, supra, as articulated in the constitutional choice of

forum analysis in Ohio v. Wyandotte Chemicals Corp., supra.

Though the subject of this suit is sewage contamination,

the constitutional choice of law and choice of forum questions

raised here apply to all suits by a State against a citizen of

another State, whether the subject of the dispute is taxes, labor,

contracts or any of dozens of other disputes. Under Article III

and the Judicial Code, the following constitutional mandates

apply to this case:

1. Under the Constitution, a State cannot be compelled to

bring its complaint against a citizen of another State in that

citizen’s state courts. Wisconsin v. Pelican Insurance Co., 127

U.S. 265, 289 (1888); Chisholm v. Georgia, 2 Dall. 419 (1793);

Ohio v. Wyandotte Chemicals Corp., supra, 401 U.S. at 500.

Consequently, Illinois cannot be compelled to subject itself to

the control of Wisconsin courts or agencies. Absent federal

question jurisdiction, the only constitutionally permissible fo-

rum is either the Supreme Court or the courts of the com-

plaining State.

2. Under the mandate of Erie v. Tompkins, in suits by a

State against a citizen of another State, the law applied must be

the law which is the source of the right asserted. If the right

asserted has its source in federal law the court—be it state or

federal—must apply federal law. Conversely, if the right

asserted is based on state law the court—be it state or feder-

al—must apply state law.

3. Interstitial federal common law—judge-made law

intended to fulfill a Congressional purpose behind a statutory

program—can only oust concurrent state law if Congress

expressly intends such an ouster. Here, rather than evidence an

intent to oust state law, Congress has expressed its desire that

state statutory and common law be preserved. Consequently,

Illinois’ claims on state statutory and common law cannot be

ousted by interstitial federal common law based on these same

statutes.

4. In addition to declaring its express intent to preserve

state statutory and common law, Congress has been expressly

informed of this Court’s decisions declaring interstitial federal

common law, e.g., Washington v. General Motors Corp., supra,

(post 1970 Amendments to the Clean Air Act); Vermont v. New

York, supra, (post 1972 Amendments to the FWPCA). More-

over, Congress has been expressly informed of lower court

decisions interpreting Congressional intent in the 1972 Amend-

ments to the FWPCA as preserving the interstitial federal

common law articulated by Justice Douglas.

5. The District Court properly held that federal law

governed the federal common law count of Illinois’ complaint

and that state law governs the state statutory and state common

law claims in Counts II and III. The District Judge’s decision

was mandated by the constitutional choice of law mandate set

forth in Erie, the constitutional limits on judicial power to oust

state law by the operation of interstitial federal common law,

and the unequivocal intent of Congress to preserve state

statutory and state common law remedies.

B. The Evidence To Support The Decision On

Liability

Both the District Court and the appellate court found clear

and convincing evidence of Milwaukee’s liability (Pet. App. F-

15, F-23, A-27). The appellate court’s exhaustive analysis of

the evidence is contained at pages B-2 and B-27 of the

Petitioner’s Appendix.

Given the detailed findings by the District Court, the

detailed analysis of the testimony and evidence by the Court of

Appeals, the “two-court” rule applied in Berenyi v. District

Director, Immigration & Naturalization Service, 385 U.S. 630,

636 (1967) and Graver Tank & Manufacturing Co. v. Linde Air

Products, 336 U.S. 271, 275 (1949), should be applied here.

This Court “cannot undertake to review concurrent find-

ings of fact by two courts below in the absence of a very

obvious and exceptional showing of error”. Graver Tank &

Manufacturing Co. v. Linde Air Products Co., supra, 336 U.S. at

275.

C. Milwaukee’s Arguments

1. Compliance with Wisconsin abatement orders. The

District Court’s order provides both specific substantive abate-

ment obligations plus clear, reasonable deadlines for com-

pliance. In contrast, Wisconsin’s abatement requirements con-

tinue the problems which have plagued Illinois since 1967: ill-

defined, unenforceable substantive obligations and open-ended

deadlines for compliance. Moreover, contrary to Milwaukee’s

arguments, the District Court’s order is wholly consistent with

the federal act requirements.

a. Separated Sewers. What Milwaukee does not tell the

Court is that 95% of Milwaukee’s sewers are separate sewers-

—not combined sewers—and that all the governmental

agencies involved say that these separate sewers overflows

should be eliminated and the sewage wastes conveyed to

treatment. Unfortunately, Wisconsin has no enforceable dead-

line for such obligations.

b. Combined Sewers. As to combined sewers, all the

governmental agencies involved and the statute say that such

overflows must have water quality based effluent limitations

under § 301(b)(1)(C), § 303(d), and § 303(c) of the Act

which insure—with a “margin of safety”—that Lake Michigan

water quality standards be achieved and not violated.

Wisconsin has failed to impose any effluent limitations on

combined sewer overflows under §303(d) and

§ 301(b)(1)(C) to achieve compliance with Lake Michigan

water quality standards. Indeed, there are no efflucnt limita-

tions at all on any of the combined sewer overflows imposed by

Wisconsin. Moreover, any vague control that may be imposed

need not be installed until the year 2025 or later.

Fortunately, Illinois cannot be barred from relief by

Wisconsin’s ill-defined open-ended abatement orders. The law

is absolutely clear that compliance with a permit is not a

defense to actions for common law nuisance. This doctrine is

followed not only in Illinois and many other jurisdictions but is

the explicit rule followed in Wisconsin.

2. Cost-Effectiveness. As to combined sewers, Milwaukee

and the other sewage agencies want this Court to be their foil in

a major game of legislative manipulation. Right now § 303(c)

and § 301(b)(1)(C) of the Act require all point sources to

meet effluent limitations necessary to prevent violation of water

quality standards. “Cost-effective” as used in the Act—

§ 212—is clearly defined now in the EPA regulations as the

least-cost way to achieve water quality based effluent limita-

tions. (§ 301(b)(1)(C)). Violations of water quality stan-

dards are illegal.

Milwaukee wants this Court to reinterpret “cost-effective”

to give this Court’s permission to eliminate ‘water quality

standards violations which are not “cost-justified” or cost-

effective as Milwaukee uses the term. Having failed to get

Congress to weaken § 303(c) and § 301(b)(1)(C), Milwaukee

wants this Court to fashion judicial legislation to overturn these

statutory obligations.

3. In personam jurisdiction. A District Court’s jurisdiction

over the person of a nonresident defendant is dependent upon

the extra-territorial service statute of the forum state. Fed. R.

Civ. P. 4(e). In this case the Illinois “long arm” statute, Ill.

Rev. Stat., ch. 110, §§ 16 and 17, control. Section 17, which

lists the actions of a defendant by which it submits to the

jurisdiction of an Illinois court, includes “‘[t]he commission of a

tortious act within Illinois.”

The Illinois Supreme Court has repeatedly held that the

Illinois long arm statute reflects a conscious legislative purpose

to assert jurisdiction over nonresident defendants to the extent

permitted by the due process clause, and that Section 17

reaches nonresident defendants who commit acts in other states

which result in injury in Illinois.

In the face of these unequivocal constructions of the Illinois

statute by the highest court in the State—and the findings

below that “[e]ach year defendants pump into Lake Michigan

millions of gallons of pathogen-containing sewage, which the

District Court found is sometimes carried into Illinois water and

presents a substantial threat of harm to Illinois residents” ( Pet.

App. A-5)—there is no basis whatsoever for Milwaukee’s

contentions that: 1) its discharge of raw sewage and disease-

causing organisms into Illinois waters does not constitute com-

mission of a tortious act in Illinois and; 2) its discharge of

contaminants into Illinois waters does not constitute a sufficient

“‘minimal contact” with Illinois to support in personam jurisdic-

tion.

4. Venue. In this case, venue is governed by 28 U.S.C.

§ 1391(b), the general venue statute governing transitory ac-

tions in federal courts where jurisdiction does not depend on

diversity of citizenship. Section 1391(b) permits suit in either

the “‘judicial district where all defendants reside, or in which the

claim arose....” Under federal law there is no question but

that Illinois’ “claim arose” within the Northern District of

Illinois, and venue was proper.

This Court should affirm the District Court, as affirmed by

the Seventh Circuit Court of Appeals, with respect to the issues

raised in Milwaukee’s Petition.

ARGUMENT

UNDER THE CONSTITUTION ILLINOIS CANNOT BE

COMPELLED TO LITIGATE ITS CLAIM AGAINST

MILWAUKEE IN THE STATE COURTS OF WISCON-

SIN

A good deal of Milwaukee’s confusion in this case lies in its

disregard of the constitutional protections given the States when

they joined the Union. Contrary to Milwaukee’s argument,

Illinois cannot be forced to litigate its claim in either Wisconsin

state courts or Wisconsin state agencies. Under both the

Constitution and the Judicial Code the only forums where an

aggrieved State can be constitutionally compelled to litigate its

claim against a citizen of another State are courts of the

complaining State and Article III federal courts. Moreover,

absent federal question jurisdiction under 28 U.S.C. § 1331 or

some other specific grant of lower federal court jurisdiction, the

only Article III federal court available is the Supreme Court.

A. This Is A Suit By A State Against A Citizen Of

Another State

Article III, § 2, cl. 1 of the Constitution creates judicial

power to decide controversies “between a State and Citizens of

another State” and between “citizens of different States”.

Article III, § 2, cl. 2 confers original jurisdiction on the Supreme

Court for cases in which a State is a party. Finally, the

Judiciary Act of 1789, as currently reflected in the Judicial

Code, states that the Supreme Court shall have original but not

exclusive jurisdiction of all actions or proceedings by a State

against the citizens of another State. 28 U.S.C. § 1251(b)(3).

As to suits between citizens of different States, the Judiciary

Act of 1789—as currently reflected in the Judicial Code—states

that the federal district courts shall have original jurisdiction of

all civil actions between citizens of different States. 28 U.S.C.

§ 1332.

Kee»

The overall reason for both jurisdictional grants was the

same—to prevent prejudice to litigants from presumably biased

local courts. ‘“‘Without doubt the underlying considerations

were akin to those which prompted the diversity clause...”

Hart & Weschsler, The Federal Courts and the Federal System

18 (2d Ed. 1973). However, in actual implementation, the

Judiciary Act of 1789 treated the two constitutional grants

differently in allocating subject matter jurisdiction.

There are two reasons for the differences in the

jurisdictional grants. First, absent a federal question, the only

federal forum for a suit by a State against a citizen of another

State is the Supreme Court. The prestige and dignity of a suing

State was deemed entitled to invoke a federal forum of equal

prestige. The Federalist No. 8] (A. Hamilton) 548 (Cooke Ed.

1961). Consequently there was no need to provide a lower

federal tribunal. Second, subject matter jurisdiction of a

complaint by a State against a citizen of another State was not

granted exclusively to the federal Supreme Court because the

framers of the Constitution clearly anticipated an aggrieved

State suing a citizen of another State in the complaining State’s

courts. Plaquemines Tropical Fruit Co. v. Henderson, 170 US.

511 (1898); Germania Insurance Co. v. Wisconsin, 119 U.S.

473, 475 (1886).

One of the key elements of this constitutional allocation of

judicial power was that the complaining State could not be

compelled to have its complaints tried in the State courts of the

nonresident defendant. Wisconsin v. Pelican Insurance Co.,

127 U.S. 265, 289 (1888); Chisholm v. Georgia, 2 Dall. 419,

475-476 (1793). Justice Harlan restated this principle in Ohio

v. Wyandotte, supra:

“Two principles seem primarily to have underlain

conferring upon this court original jurisdiction over cases

and controversies between a State and citizens of another

State or country. The first was the belief that no State

should be compelled to resort to the tribunals of other States

for redress since parochial factors might often lead to the

appearance, if not the reality, of partiality to one’s own.

Chisholm v. Georgia, 2 Dall. 419, 475-476 (1793); Wiscon-

sin v. Pelican Ins. Co., 127 U.S. at 289.”

401 U.S. at 500 (emphasis added )

Applying these principles to this dispute between Illinois

and a citizen of Wisconsin, the Constitution is absolutely clear

that neither the federal Judiciary nor Congress can compel

Illinois to adjudicate its claims in the state courts of Wisconsin.

A fortiori, Illinois cannot constitutionally be compelled to

submit these claims to the administrative agencies of the State

of Wisconsin. 12

B. This Is Not A Suit By A State Against Another

State

It is critical to emphasize that this Court has expressly held

that this is not a suit between a State and another State. Jilinois

v. Milwaukee, supra, 406 U.S. at 98. This distinction—between

a suit by one state sovereign against another state sovereign

(with exclusive original jurisdiction in the Supreme Court) as

distinguished from a suit by a State against a citizen of another

State (with alternative jurisdiction in the Supreme Court or the

plaintiff State’s courts) has major significance in the con-

stitutional rules governing choice of law (see discussion, infra).

C. This Court’s Dilemma Really Centers On The

Search For An Alternative Forum

In both Ohio v. Wyandotte and Illinois v. Milwaukee, the

main focus of this Court’s concern was the need to find an

alternative forum. As Justice Harlan made clear in Qhio v.

Wyandotte, there are literally hordes of cases where States and

citizens of other States come into conflict, including disputes

over “taxes, motor vehicles, decedents’ estates, business torts,

government contracts, and so forth.” 401 U.S. at 497.

12 Indeed, sub silentio the Court’s 1972 decision in this case

rejected Milwaukee’s argument that Wisconsin state courts and

Wisconsin administrative agencies could determine this controversy.

He then went on to observe that there were two reasons

why, under the constitutional framework, disputes between a

State and a citizen of another State had to come before the

Supreme Court:

“The first was the belief that no State should be

compelled to resort to the tribunals of other States for

redress, since parochial factors might often lead to the

appearance, if not the reality, of partiality to one’s own.

Chisholm v. Georgia, 2 Dall. 419, 475-476 (1793); Wiscon-

sin v. Pelican Ins. Co., 127 U.S., at 289. The second was

that a State, needing an alternative forum, of necessity had

to resort to this Court in order to obtain a tribunal

competent fo exercise jurisdiction over the acts of non-

residents of the aggrieved State.”

Id. at 500 (emphasis added )

It is this second in personam jurisdiction limitation which

was driving cases to the Supreme Court. The Constitution had

been drafted when the physical power principles of Pennoyer v.

Neff, 95 U.S. 714 (1878), dominated concepts of in personam

jurisdiction. But as Justice Harlan noted, just as there had been

growth in the multitude of disputes between States and citizens

of other States, concepts of in personam jurisdiction had

expanded to permit complaining States to sue in their own

courts. 401 U.S. at 497, 500.

It was this finding of the alternative forum which allowed

the Court to avoid the burden of an original action in the

Supreme Court while still fulfilling its constitutional duty under

Article III:

“‘Thus, at this stage we go no further than to hold that,

as a general matter, we may decline to entertain a com-

plaint brought by a State against the citizens of another

State or country only where we can say with assurance that

(1) declination of jurisdiction would not disserve any of

the principal policies underlying the Article III jurisdiction-

ai grant.”

Id. at 499

Illinois believes that this Court’s approach in Wyandotte

was correct. Given the thousands of disputes arising between

States and citizens of other States over a huge range of

substantive matters, the Court has the following options:

1. It can hear the cases by means of a master. This the

Court is constitutionally obliged to do if there is no con-

stitutionally acceptable alternative forum.

2. It can reaffirm the in personam principles set forth in

Ohio v. Wyandotte. This would leave the bulk of the actions in

the state courts where they can be properly resolved without

burdening this Court.

3. It can continue to fashion substantive interstitial federal

common law rights, as in J/linois v. Milwaukee, in order to find

an alternative lower court federal forum.

Il.

CHOICE OF LAW—UNDER THE CONSTITUTION THE

LAW TO BE APPLIED IN DETERMINING CLAIMS OF

SUBSTANTIVE RIGHT IS THE LAW WHICH IS THE

SOURCE OF THE SUBSTANTIVE RIGHT

The substantive law to be applied to a claim is determined

not by the forum the parties find themselves in—but by the

source of the law. If the source of the law is state law, the court,

be it federal or state, must under Erie R. Co. v. Tompkins, 304

U.S. 64 (1938), apply state law. If the source of the law is

federal, the court must apply federal law. Where, as here, the

State has brought separate claims based on federal law and

state law, federal law dictates the right to recover under the

claim which has its source in federal law. However, state law

dictates the right to recover on the state law claims in counts II

and III.

This mandate is found in both the basic concepts of

federalism and the constitutional limitations on the power of

federal courts to make their own law as embodied Erie R. Co.

v. Tompkins and the Rules of Decision Act, 28 U.S.C. § 1652.

See Guaranty Trust Co. v. York, 326 U.S. 99, 112 (1945).

This statutory and constitutional mandate has repeatedly

been recognized by courts and commentators:

“ce

. there are several reasons for applying state law in

original suits by a state against a citizen of another state.

Although a state has been held “not to be a citizen of

itself’ for purposes of diversity jurisdiction in the federal

trial courts, the situation is analogous to ordinary diversity

suits. This analogy supports the application of section

1652 of the Judicial Code, the statute construed in the Erie

case, and the application of this statute would also avoid

the constitutional problems suggested by the Erie decision.

The policy grounds for the Erie doctrine would also

seem to apply to suits between a state and citizens of a

sister state under the original jurisdiction. Since these suits

may also be brought in a state court, the Supreme Court

would be promoting uniformity and limiting “forum shop-

ping” as between the state courts and the Supreme Court if

Erie were applied.”'3

Note, The Original Jurisdiction of the United

States Supreme Court, 11 Stan. L.Rev. 665, 684-

85 (1959) (emphasis added )

Justice Harlan applied the Erie mandate in Ohio v. Wyan-

dotte and stated that Erie would require the application of state

law to Ohio’s claim based on Ohio nuisance law even if there

were subject matter jurisdiction in the federal district court. 401

USS. at 498 n.3.

13 Technically the statement that “state” law should apply is in

error. While it is correct that Erie would apply to such suits, the Erie

rule requires application of the law which is the source of the right

asserted. Thus where the State is seeking to enforce a right based on

federal law, federal law governs. Where the source of the right is state

law, state law governs. See, Maternally Yours, Inc. v. Your Maternity

Shop, Inc., 234 F.2d 538, 540-41 & n.1 (2d Cir. 1956).

Ill

JUDICIAL DECLARATION OF A FEDERAL COMMON

LAW RIGHT AS AN INTERSTITIAL REMEDY TO

EFFECTUATE A CONGRESSIONAL PURPOSE CAN-

NOT OUST STATE LEGISLATURES AND COURTS OF

THEIR LAW-MAKING POWER UNLESS CONGRESS

CLEARLY INTENDS STATE LAW TO BE OUSTED

Federal courts have a necessary constitutional function to

effectuate the congressional purpose reflected in statutes by

providing interstitial remedies which are characterized as “‘fed-

eral’ common law. However, the federal courts’ power to

preempt or oust state law from concurrently addressing the

same problem area is only as extensive as the congressional

intent to oust state law. Where Congress has expressly and

repeatedly stated its desire to preserve state statutory and

common law remedies, federal courts cannot—in the guise of

creating interstitial federal common law and under the author-

ity of those same congressional enactments—judicially oust

state statutory and common law.

A. The Source of the Federal Common Law of Nuisance

Articulated by This Court Was “Interstitial” Federal

Common Law

One of the key inquiries here is the source of the federal

common law articulated by Justice Douglas in Illinois v.

Milwaukee. Clearly the Court was creating what has been

called “interstitial” federal common law. As explained by

Professor Mishkin:

“At the very least, effective Constitutionalism requires

recognition of power in the federal courts to declare, as a

matter of common law or “judicial legislation,” rules which

may be necessary to fill in interstitially or otherwise effec-

tuate the statutory patterns enacted in the large by Congress.

In other words, it must mean recognition of federal judicial

competence to declare the governing law in an area

comprising issues substantially related to an established

program of government operation.”

Mishkin, The Variousness of “Federal Law”:

Competence and Discretion in the Choice of Na-

tional and State Rules for Decision, 105 VU. Pa. L.

Rev. 797, 800 (1957) (emphasis added )

There are numerous examples of this Court’s exercise of

such interstitial power by declaring a federal remedy or right.

Where Congress had failed to specifically address the particular

problem before the Court, the Court fashioned a judge-made

remedy to effectuate a perceived congressional purpose. Board

of Commissioners of Jackson County v. United States, 308 U.S.

343 (1939); Deitrick v. Greaney, 309 U.S. 190 (1940);

D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942);

Clearfield Trust Co. v. United States, 318 U.S. 363 (1943).

Perhaps the broadest assertion of such interstitial power

was in Textile Workers Union of America v. Lincoln Mills, 353

U.S. 448 (1957). Lincoln Mills and the authority upon which it

rests are based on express determinations by the Supreme Court

that development of such federal common law remedies was

contemplated by Congress as an interstitial remedy as part of its

legislative grant of authority. 353 U.S. at 455

In Illinois v. Milwaukee, Justice Douglas followed the same

pattern in finding an interstitial federal common law based on

the then existing federal statutes dealing with water quality. He

began by citing the broad range of federal statutes dealing with

interstate waters. 406 U.S. at 101-02. He then turned to the

delineation of the federal common law remedy within this

multitude of federal statutes, including the Federal Water

Pollution Control Act:

“The remedy sought by Illinois is not within the

precise scope of remedies prescribed by Congress. Yet the

remedies which Congress provides are not necessarily the

only federal remedies available.”

406 U.S. at 103 (emphasis added )

Justice Douglas then cited as authority this Court’s decision in

Lincoln Mills:

“It is not uncommon for federal courts to fashion federal

law where federal rights are concerned. Textile Workers v.

Lincoln Mills, 353 U.S. 448, 457.”

Id.

Thus the Court was clearly basing its articulation of federal

common law on the same kind of interstitial common law

development based on a statutory scheme which had been used

in Board of Commissioners, supra, Dietrick, supra, and

D’Oench, supra.

B. Federal Interstitial Common Law Cannot Oust Con-

current State Statutory and State Common Law

Unless the Statutory Scheme on Which the Inter-

stitial Federal Common Law is Based Demonstrates

A Clear Intent To Oust State Law.

While Board of Commissioners, D’Oench, Deitrick and

similar decisions clearly establish the principle that federal

courts can establish an interstitial federal common law and hold

that federal, not state, law determines the extent of the federal

right—such cases do not deal with the question of whether

interstitial federal law preempts (i.e. ousts) concurrent state

statutory and common law from protecting state law rights.

The only cases dealing with ouster of state law by federal

common law have found express evidence of congressional

intent to Oust concurrent state activity.

In Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95

(1962), the Court did hold that the federal common law

announced in Lincoln Mills preempted state law, but only after

finding that it would be impossible for the two schemes to co-

exist. The Court therefore concluded that Congress must have

intended to preempt local law:

“W]e cannot but conclude that in enacting § 301 Con-

gress intended doctrines of federal labor law uniformly to

prevail over inconsistent local rules.”

369 U.S. at 104 (emphasis added )

In a related area this Court has emphasized that the

question of ouster of state statute and common law is a question

best left to Congress and not the courts. Miree v. DeKalb

County, Georgia, 433 U.S. 25, 32 (1977); Wallis v. Pan

American Petroleum Corp., 384 U.S. 63, 68 (1966).

Professor Paul Mishkin, a long time advocate of federal

judicial power to formulate interstitial federal common law, has

voiced constitutional concerns about judicial ouster of state law

without express congressional intent:

“TI maintain that the Constitution bears not only on con-

gressional power but also imposes a distinctive, independ-

ently significant limit on the authority of the federal courts

to displace state law.

* * *

That Congress may have constitutional power to make

federal law displacing state substantive policy does not

imply an equal range of power for federal judges. Prin-

ciples related to the separation of powers impose an

additional limit on the authority of federal courts to engage

in lawmaking on their own (unauthorized by Congress ).”

Mishkin, Some Further Last Words on Erie—The

Thread, 87 Harv. L.Rev. 1682, 1683 (1974)

(emphasis in original )

C. The Constitutional Mandate Of Erie That State Law

Govern The Determination Of Rights With Their

Source in State Law Is Consistent With The Court’s

Decision In Illinois vy. Milwaukee

Footnote 5 of Justice Douglas’ opinion in Tilinois v.

Milwaukee cites a lengthy passage from Lincoln Mills that

many argue reflects a preemption of state law. 406 U.S. at 103

n.5. But Lincoln Mills and other interstitial federal common

law cases did not address preemption of state law and are

readily reconciled with the Erie mandate followed in Ohio v.

Wyandotte.

In Lincoln Mills the Court, first having found that the

source of the substantive right being asserted had its basis in

federal law (i.e., the congressional purpose to provide substan-

tive legal remedies), then held that “Federal interpretation of

the federal law will govern, not state law.” 353 U.S. at 457

(emphasis addee ).

This basic rule—that federal law, not state law, governs

the interpretation of rights to relief based on substantive federal

law—is dictated by the Supremacy Clause of the Constitution.

However, the constitutional converse is also true. The scope

and meaning of rights based on state substantive law must be

based on state law—not some federal “common” law. This

was the basic holding of Erie v. Tompkins in 1938 and the

counterpart decision of this Court in 1939 in Board of Commis-

sioners of Jackson County v. United States, 308 U.S. 343

(1939).

Board of Commissioners was decided soon after Erie and

illustrates the distinction very well. There the Court undertook

a multi-step analysis. The Court first determined that the right

being asserted had its basis in federal law. 308 U.S. at 349.

The Court then determined that Congress had neglected to

provide a remedy for that right and had left the remedy to

judicial implication. Jd. The Court then applied the corollary

of Erie’s constitutional mandate: “Since the origin of the right

to be enforced is the Treaty, plainly whatever rule we fashion is

ultimately attributable to the Constitution, treaties or statutes of

the United States, and does not owe its authority to the law-

making agencies of Kansas. Cf. Erie R. Co. v. Tompkins, 304

U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.” Jd. at

349-50 (emphasis added).

Having decided that the rule of decision was federal law,

the Court went on to emphasize that nothing in state law could

be used to defeat that federal right. Jd. at 350. This holding

was totally consistent with the Supremacy Clause. However in

the interests of federal/state comity, the Court held that the

local law on payment of interest would be “absorbed” into the

federal law.

‘““With reference to other federal rights, the state law has

been absorbed, as it were, as the governing federal rule not

because state law was the source of the right but because

recognition of state interests was not deemed inconsistent

with federal policy.”

Id. at 351-52

The case that clarifies the distinction between choice of law

where the right asserted has its source in federal law and choice

of law when the right asserted has its source in state law is

Guaranty Trust Co. v. York, 326 U.S. 99 (1945):

“‘We put to one side the considerations relevant in

disposing of questions that arise when a federal court is

adjudicating a claim based on a federal law. See, for

instance, Board of Com’rs v. United States, 308 U.S. 343,

60 S.Ct. 285, 84 L.Ed. 313; Deitrick v. Greaney, 309 US.

190, 60 S.Ct. 480, 84 L.Ed. 694; D’Oench, Duhme & Co. v.

F.D.I.C., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956;

Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct.

573, 87 L.Ed. 838; O’Brien v. Western Union Telegraph

Co., 1 Cir., 113 F.2d 539. Our problem only touches

_ transactions for which rights and obligations are created by

one of the States, and for the assertion of which, in case of

diversity of the citizenship of the parties, Congress has

made a federal court another available forum.”

326 U.S. at 101 (emphasis added )

Against this background, Justice Douglas’ footnote 5 at

406 U.S. at 103 takes on its appropriate meaning. Justice

Douglas had found his source of federal right and federal

concern in the panoply of federal statutes which impacted water

pollution control. 406 U.S. at 101-02. However, since the

federal laws in this area did not give the specific remedy sought

by Illinois, Justice Douglas created a federal “common law”

remedy which filled in the interstices left by the federal statutes

in the area. See Board of Commissioners, supra; Deitrick,

supra; D’Oench, supra.

Since the source of the federal remedial right created as an

interstitial remedy was based on the federal statutes, federal not

state law must govern the interpretation of that right. Board of

Commissioners, supra. For the purpose of determining the

outlines of that judge-made federal common law, state law

could be absorbed but was not binding on the determination of

that federal common law right.

Footnote 5 of Illinois v. Milwaukee does not discuss the

law to be applied where as here, claims based on state law are

also presented. The complimentary doctrine of Erie and Board

of Commissioners provide a clear rationale for applying federal

principles and “‘absorbed” state law to the articulation of the

federal right, and for applying state law for decision of the state

right under Erie, Guaranty Trust and Ohio v. Wyandotte.

D. The Law Applied In Suits By One State Against

Another State Does Not Apply To Interstitial Federal

Common Law.

In suits between sovereigns, state law is completely ousted

and federal law must govern. See, e.g., Kansas v. Colorado,

206 U.S. 46 (1907); Connecticut v. Massachusetts, 282 U.S. 660

(1931). Illinois is in complete agreement with that principle

and it is totally consistent with the special exclusive jurisdiction

of the Supreme Court over direct suits between sovereigns. Just

as state courts could not intrude upon the Supreme Court’s

original and exclusive jurisdiction so also the state law of any

State cannot be imposed on the sovereign actions of another

State. Here by definition the only choice of law is federal.

The principles of common law announced in these cases

did not oust or preempt state law. Instead, by the constitutional

definition of a dispute between sovereign States, state law was

constitutionally preempted.

This automatic constitutional preemption of all state law in

disputes directly between States would apply to all state law.

Thus if the disputes were over taxes, contracts, torts, labor

agreements or any other substantive subject matter, the Con-

stitution dictates that in disputes directly between the sovereign

States, the Supreme Court fashion federal law and no state law

can constitutionally apply.

This specialized and essential constitutional ouster of state

law in direct disputes between sovereigns is wholly consistent

with Erie v. Tompkins and Ohio v. Wyandotte. Since the

Constitution says federal law must govern to the exclusion of

state law in direct disputes between sovereigns, it was wholly

consistent for the author of Erie to also indicate the same day in

dicta that federal common law governed disputes between the

States. Hinderlider v. La Plata River & Cherry Creek Ditch Co.,

304 U.S. 92 (1938).

But that constitutional ouster has no meaning in suits

between citizens of different States or between a State and a

citizen of another State. Under those circumstances, Erie and

Ohio v. Wyandotte mandate that the court—be it state or

federal—apply the law which is the source of the substantive

right being asserted.

E. Congress Has Not Preempted State Statutory And

Common Law Remedies To Abate Water Pollution

The only remaining question is whether Congress ex-

pressed any intent to oust state law. If Congress intended to

preserve state law, federal interstitial common law—based as it

must be on congressional purpose—cannot constitutionally oust

state law.

1. The Law of Preemption

At the heart of the preemption of state law issue are the

basic principles of federalism calling for the sharing of power

between the States and the national government:

**... we start with the assumption that the historic police

powers of the states will not be superseded by the Federal

Act unless that is the clear and manifest purpose of

Congress.”

Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947) ‘

The common sense constitutional roots of this careful

diffusion of power have been described best by Professor Henry

Hart:

‘““We could have, in principle, a perfect uniformity of

law in the United States—at a price. We could have it by

establishing a single legislature, a single system of courts, a

single chief executive, and a single phalanx of executive

departments and administrative agencies, each possessing

within its sphere a nation-wide and general jurisdiction.

So Procrustean a solution of the problems of feder-

alism is unlikely to find wide favor. ... Common sense and

the instinct for freedom alike can be counted upon to tell

the American people never to put all their eggs of hope

from governmental problem-solving in one governmental

basket.”

Hart, The Relations Between State and Federal

Law, 54 Colum. L. Rev. 489, 539-540 (1954)

The intent of Congress to preempt state law must be clear.

“...[WJe are not to conclude that Congress legislated the

ouster of this California statute by the marketing orders in the

absence of an unambiguous congressional mandate to that

effect. We search in vain for such a mandate.” Florida Lime &

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147 (1963).

Absent such unambiguous intent the Court should not find

preemption of state law. New York State Department of Social

Services v. Dublino, 413 U.S. 405, 415 (1973).

2. Congressional Intent to Preserve State Law

Both the express language and the legislative history of the

Federal Water Pollution Act Amendments of 1972 and 1977

show unmistakable congressional intent to preserve state law

remedies.

Milwaukee has ignored Section 510 of the 1972 Amend-

ments, which expressly allows a State or political subdivision to

impose more stringent requirements:

“State authority—Except as expressly provided in this Act,

nothing in this Act shail (1) preclude or deny the right of

any State or political subdivision thereof or interstate

agency to adopt or enforce (A) any standard or limitation

respecting discharges of pollutants, or (b) any requirement

respecting control or abatement of pollution. . .”

33 U.S.C. § 1370 (emphasis added )

With respect to this section, the House Public Works

Committee stated:

“The Committee considers section 510 to be of extreme

importance in assuring the States of the right to adopt or

enforce provisions at least as strict as those established in

this legislation. Thus, the Committee rejected in most

instances suggestions for preemption by the Federal Govern-

ment and preempted the States only where the situation

warranted it based upon the urgent need for uniformity

such as in section 312(f) relating to marine sanitation

devices.”

1 Congressional Research Service, A Legislative

History of the Water Pollution Control Act

Amendments of 1972, 93d Cong. Ist Sess. 823

(1973) (hereinafter cited as “Legislative His-

tory”) (emphasis added )

Since the passage of the 1972 Amendments, the courts

have uniformly recognized the rights of States to require more

stringent requirements than the national standards.'4 Nor did

Congress in any way seek to restrict this right to more stringent

standards in the 1977 Amendments. In the Senate Report on

the 1977 Amendments, the Senate Public Works Committee

states:

14 United States Steel Corp. v. Train, 556 F.2d 822, 839 (7th Cir.

1977); Mianus River Preservation Comm. v. E.P.A., 541 F.2d 899,

906 (2d Cir. 1976); Metropolitan Sanitary District v. United States

Steel Corp., 30 Ill. App. 3d 360, 332 N.E.2d 426, 434 (1975), cert.

denied, 424 U.S. 976 (1976); People ex rel. Scott v. United States

Steel Corp., 40 Ill. App. 3d 607, 352 N.E.2d 225, 229 (1976); United

States ex rel. Scott v. United States Steel Corp., 356 F.Supp. 556, 558-

59 (N.D. Ill. 1973); Illinois v. City of Milwaukee, 366 F.Supp. 298

(N.D. Ill. 1973); Cf. Village of Glencoe v. Metropolitan Sanitary

District, 23 Il. App. 3d 868, 320 N.E.2d 524 (1974).

“There is nothing in these new provisions which in any

way preempts the rights of States to have more stringent

water quality standards or associated effluent limitations;

”

S. Rep. No. 370, 95th Cong. Ist Sess. 43 (1977) 4

Legislative History, 676

Just as States were entitled to require more stringent

discharge requirements under the Act, so also their various pre-

existing common law and statutory remedies were preserved.

Section 505 creates a specific statutory cause of action for any

citizen to enforce any effluent limits imposed by the Act. By its

express terms the cause of action created by Section 505 is

limited to enforcing the specific limits set under the FWPCA.

Section 505 does not create any right to enforce obligations

which are not in the Act and common law nuisance claims are

not § 505 actions. Stream Pollution Control Board v. United

States Steel Corp., 512 F.2d 1036, 1041 (7th Cir. 1975).

Congress clearly stated that Section 505 did not bar any

other action which might exist under state common law or

statute. Section 505(e) of the 1972 Amendments 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 enforcement of any effluent

standard or limitation or to seek any other relief (including

relief against the Administrator or a State agency).”

33 U.S.C. § 1365(e)

The House Report on the 1972 Amendments states:

“Subsection (e) provides that the right of persons (or class

of persons ) to seek enforcement or other relief under any

statute or common law is not affected.”

1 Legis. Hist. 821

F. Congress Was Aware Of Court Decisions That The

1972 FWPCA Amendments Had Not Preempted Fed-

eral Common Law. With This Knowledge It Rejected

Attempts To Preempt Both The Federal Common

Law And The Result In This Case

Given the clear intent of Congress that state statutory and

common law remedies be preserved, the Court need not reach

the question of the continued survival of a federal common law

remedy which would fill in the interstices of the federal Act as

now constituted. Nevertheless, the continued existence of a

“federal” common law nuisance power is extremely necessary

and useful. It is this federal common !2w nuisance authority

which fills the gaps that Congress did not forsee or the agency

could not address. For these reasons, and not as necessary to

the determination of this case, the Court should declare the

continuing vitality of federal common law power.

An examination of the legislative history of the 1972 and

1977 Amendments clearly establishes that Congress has not

preempted “federal” common law. Congress had a detailed

analysis of the federal common law of nuisance and the lower

court cases applying it when it adopted the 1977 amendments,

P.L. 95-217. By 1977, several cases, including a reported

decision in this case (366 F.Supp. 298; Pet. App. G-1 ef seq.)

had considered and rejected the argument that the 1972

amendments preempted federa/ common law claims. See e.g.,

Board of Supervisors of Fairfax County, Virginia v. United

States, 408 F.Supp. 556, 562 (E.D. Va. 1976); United States v.

Ira S. Bushey & Sons, Inc., 346 F.Supp. 145, 149 (D. Vt. 1972);

United States ex rel. Scott v. United States Steel, 356 F.Supp.

556, 559 (N.D. Ill. 1973); United States v. Ira S. Bushey &

Sons, Inc., 363 F.Supp. 110, 120 (D. Vt.), aff'd, 487 F.2d 1393

(2d Cir. 1973), cert. denied., 417 U.S. 976 (1974).

Congress knew that these cases had construed the 1972

amendments as preserving a federal common law of nuisance.

While Congress was considering the 1977 amendments, the

Congressional Research Service of the Library of Congress

compiled the significant decisions which had construed the 1972

Act during the preceding five years.15 The Library of Congress

Report contains repeated, specific discussions of this very case:

18 House Comm. on Public Works and Transportation, Case Law

Under the Federal Water Pollution Control Act Amendments of 1972,

95th Cong., Ist Sess. (Comm. Print 1977) (hereafter “Library of

Congress Report’’).

“*. ..[A] federal district court in Illinios [sic] held that the

Act does not preempt a State action in federal court based

on federal common law and seeking abatement of a

nuisance. Illinois v. City of Milwaukee, 366 F.Supp. 298

(N.D.IIl. 1973).”

Library of Congress Report at 3 (emphasis

added )

In discussing cases which had construed Section 505 there

was an entire section addressed solely to federal common law

nuisance actions. Library of Congress Report at 106-07.

Finally, in the discussion of case law under Section 510 and

its preservation of state authority, the Congressional Research

Service again referred to this case, and explained to Congiess in

plain, unequivocal terms that the lower courts had construed

the 1972 amendments as preserving federal common law:

“In Illinois v. City of Milwaukee, 366 F.Supp. 298

(N.D.Ill. 1973), the court held that neither the Act nor the

E. P. A. regulations governing waste discharges and water

quality barred a suit by the State of Illinois seeking to enjoin

as a nuisance a Wisconsin city’s alleged discharge of raw

sewage into Lake Michigan. The court relied in part on

Section 510 in finding that the Act was not intended to

terminate a state’s right to invoke the federal common law

of nuisance. Accord United States v. United States Steel,

356 F.Supp. 556 (N. D. Ill. 1973) (both the Federal

Government and the State of Illinois may rely on federal

common law of nuisance.) See E. P. A. v. California, 426

U.S. 200 (1976), discussed under Section 505.”

Library of Congress Report at 123 (emphasis

added )

Contrary to Milwaukee’s unsupported assertion that Con-

gress passed two major statutes in a state of blissful ignorance,

the legislative history is clear that Congress knew exactly what

it was doing, meant exactly what it said, and fully intended to

preserve the common law, including the federal common law.

It kept Sections 505(e) and 510 unchanged in the 1977

amendments. '6

THE DISTRICT COURT PROPERLY HELD THAT FED-

ERAL LAW GOVERNS THE FEDERAL COMMON

LAW CLAIM IN COUNT I AND THAT STATE LAW

GOVERNS THE STATE STATUTORY AND STATE

COMMON LAW CLAIMS IN COUNTS II AND HL.

The complaint in this case has three separate counts: a)

Count I charged Milwaukee with the creation of a federal

common law nuisance; b) Count II charged Milwaukee with

violation of statutory prohibitions against water pollution con-

tained in the Illinois Environmental Protection Act, Ill. Rev.

Stat., ch. 111% § 1001 ef seg.; and c) Count III charged

Milwaukee with the creation of a common law nuisance under

16 Further, in 1977 Wisconsin Congressman Les Aspin made a

last-ditch attempt to overturn this very case and these constructions of

the 1972 amendments and to severely limit the availability of all

common law nuisance actions. Following the decision in the District

Court in this case, but before the entry of judgment, Representative

Aspin attempted to introduce an amendment to the bill which became

the 1977 amendments. This amendment is reproduced in full in a

separate Appendix, as are letters from Senator Stevenson and the

Department of Justice expressing opposition to the Aspin amendment

[Ill.App. 98a-103a]. The Aspin amendment would have amended

Section 402—the Section dealing with discharge permits under the

Act—and prevented a State and its citizens from bringing a common

law nuisance action unless the State first participated in the adminis-

trative permit process. It would have applied even to pending cases

unless a “final decision” had been rendered.

As Senator Stevenson’s letter to Senator Randolph pointed out,

the Aspin amendment—with its “final decision” language—was

plainly directed at the District Court decision against Milwaukee in

this case: it came in October, 1977, after the court announced its

decision (July, 1977) but before the entry of judgment ( November,

1977). Significantly, Congress did not adopt it. Having failed in

Congress, Milwaukee is now asking the Court to adopt a judicial!

version of the Aspin amendment.

Illinois law. The District Court found liability on all three

counts. (Pet. App. F-24.) The analysis set forth above clearly

demonstrates that the judiciary in declaring interstitial federal

common law—grounded on fulfillment of a legislative pur-

pose—has no constitutional power to oust concurrent state

statutory and common law rights where Congress has so

unequivocally stated its intent to preserve such state remedies.

Since there is no preemption of any state statutory or

common law claims, Erie and Guaranty Trust mandate that

state law determine the state law counts and that federal law

determine the federal law count.

THE EVIDENCE BEFORE THE TRIAL COURT BELOW

OVERWHELMINGLY DEMONSTRATES MIL-

WAUKEE’S LIABILITY FOR CONTAMINATING IL-

LINOIS WATERS OF LAKE MICHIGAN UNDER THE

FEDERAL COMMON LAW, THE STATE COMMON

LAW AND THE ILLINOIS ENVIRONMENTAL

PROTECTION ACT.

Milwaukee has taken snatches of the District Court’s

findings and concocted a series of evidentiary claims that have

little relationship to reality. It is sufficient to note that each of

Milwaukee’s evidentiary arguments was exhaustively examined

by the Court of Appeals and rejected. Both the District Court

and the Court of Appeals found clear and convincing evidence

of Milwaukee’s liability (Pet. App. F-15; F-23; A-27).

Given the detailed findings by the District Court (Pet.

App. F-1 to F-30), the detailed analysis of the testimony and

evidence by the Court of Appeals (Pet. App. A-26 to A-39; B-1

to B-32), the “two-court” rule applied in Berenyi v. District

Director, Immigration & Naturalization Service, 385 U.S. 630,

636 (1967) and Graver Tank & Manufacturing Co. v. Linde Air

Products Co., 336 U.S. 271, 275 (1949) should be applied here.

This Court “cannot undertake to review concurrent findings of

fact by two courts below in the absence of a very obvious and

exceptional showing of error”. Graver Tank & Manufacturing

Co. v. Linde Air Products Co., supra, 336 U.S. at 275.

Milwaukee repeatedly cites New York v. New Jersey, 256

U.S. 296 (1921), and Missouri v. Illinois, 200 U.S. 496 (1906),

as if the facts in those situations were identical to thuse in the

instant case. But in each of those cases the plaintiff State was

allowing its own dischargers to discharge equal or greater

amounts of sewage into the same watercourse, contaminating

the same water:

““Where as here, the plaintiff has sovereign powers and

deliberately permits discharges similar to those of which it

complains, it not only offers a standard to which the

defendant has the right to appeal, but as some of those

discharges are above the intake of St. Louis, it warrants the

defendant in demanding the strictest proof that the plain-

tiffs own conduct does not produce the result, or at least so

conduce to it that courts should not be curious to apportion

the blame.”

Missouri v. Illinois, 200 U.S. 496, 522 (1906)

(emphasis added )

In New York v. New Jersey, the complaining State allowed

New York City to du: p into the same waters seven times the

volume of sewage (all untreated) as the proposed New Jersey

discharge which was treated. 256 U.S. at 303. Here, by

contrast, Illinois has either completed or has under construction

programs which have already eliminated or will eliminate all

uncollected and untreated sewage discharges to Lake Michigan.

WISCONSIN’S ABATEMENT REQUIREMENTS CON-

TINUE TO BE PLAGUED BY LACK OF SPECIFIC

COMMITMENTS AND LACK OF PRECISE DEAD-

LINES.

A. Wisconsin’s Pollution Control Requirements

From the time this controversy began thirteen years ago,

the abatement requirements imposed on Milwaukee by Wiscon-

sin state agencies have been characterized by vague unenforce-

able discharge limitations and indefinite open-ended deadlines.

This problem was not solved by the passage of the Federal

Water Pollution Control Act Amendments of 1972 (P.L. 92-

500).

The 1972 Amendments mandated nationwide

“technology-based” minimum effluent limitations for all

sources on a uniform basis across the country. To protect clean

high quality waters like Lake Michigan from being degraded

down to some common denominator based on the technology-

based nation-wide minimum, the House insisted on the in-

clusion of § 303 of the Act—the adoption of ambient water

quality standards and the development of more stringent

effluent limitations to meet those water quality standards.

These water quality standards for high quality waters were

to be translated into effluent limitations through the procedures

established by § 303(d) which required the states to identify

those waters where the technology-based effluent limitations of

§ 301(b)(1)(A) and §301(b)(1)(B) “are not stringent

enough to implement any water quality standards ri

§ 303(d)(1)(A). Section 303(d)(1)(C) then required the

states to set a more stringent “total maximum daily load of

pollutants” allowed to be discharged which would insure

attainment of the water quality standards with a “margin of

safety.” § 303(d)(1)(C). These total maximum daily loads

were then allocated by means of a waste load allocation among

the various discharge points which were to be incorporated into

point source permits as _ effluent limitations under

§ 301(b)(1)(C). R. Zener, Water Pollution Control, in Feder-

al Environmental Law, 719 (1974).

In the eight years since the passage of the 1972 Amend-

ments, Wisconsin has failed to impose effluent limitations which

will insure the achievement of the public health water quality

standards it has adopted for Lake Michigan.'” Permits issued to

Milwaukee by the State of Wisconsin since 1972 continue to

lack specific enforceable requirements and contain open-ended

deadlines with respect to both the separate sanitary sewer

system overflows and combined sewer overflows.

Separate Sanitary Sewer System Overflows. In 1974,

Milwaukee was given until December 31, 1975 to produce a

“plan” for “the elimination of all discharge points noted above”

(JA 379, 416, 426). The “plans” were never submitted and no

deadline has ever been set for the elimination of these points.

In 1977, a Stipulation signed between Wisconsin and Mil-

waukee contained strong and clear prefatory language’® but the

actual obligation is much weaker. The obligation is only to

“correct” wet weather discharge—not dry weather discharges.

Moreover, there is no commitment to eliminate the discharges

or meet secondary treatment standards by any date (JA 470).

In 1978 Wisconsin issued other permits for these separated

* sewer overflows which expressly state that the 1977 stipulation

is not a part of the permits. (Ill. App. 50a). These permits

specifically mandated “elimination” of these overflows or treat-

17 Wisconsin has set a water quality standard for Lake Michigan

which states that the water quality for Lake Michigan shall be suitable

for recreational use and as a public water supply and that the

following criteria shall apply to protect that use: 1) “[s]ubstances in

concentrations which are toxic or harmful to humans shall not be

present in amounts found to be of public health significance ...”” NR

102.02; 2) a bacteriological criterion is set as: “‘[t}he membrane filter

fecal coliform count shall not exceed 200 per 100 ml as geometric

mean nor exceed 400 per 100 ml in more than 10% of all samples

during any month.” NR. 102.02; 3) as to public water supply the

Wisconsin standards state “concentrations of other constituents must

not be hazardous to health.”” NR 102.02. (emphasis added) (com-

piled in BNA Environment Reporter, State Water Laws, Vol. 2, pp.

951: 1002-03.)

18 “WHEREAS, the Department alleges that under dry weather and

wet weather conditions, bypassing and overflowing occur within the

sewerage systems of the Commissions and such discharges must either

be eliminated or meet secondary treatment standards by July 1, 1977.”

(JA 463) (emphasis added )

ment to specific secondary effluent limits with a specific limit on

bacteria. (Ill. App. 57a, 79a). However, the July 1, 1977

deadline set in the permit is wholly fictitious; the permit was

issued in 1978. The pollution control work has not been done

and there is no future enforceable deadline.

Combined Sewer Overflows. In its 1974 permit, the sole

requirement for the CSO overflows was for Milwaukee to:

‘“*. .. initiate a program leading to the attainment of control

of overflows from the City’s combined sewer system .. . to

assure attainment of all applicable Water Quality Stan-

dards.”

(JA 461) (emphasis added )

No effluent limitations of any kind have ever been estab-

lished for these CSO overflows. There were no technology-

based effluent limits imposed under § 301(b)(1)(A) or

§ 301(b)(1)(B) in the 8 years since the passage of the 1972

amendments. Nor have any water quality based effluent

limitations ever been imposed to assure the attainment of all

applicable water quality standards as required by § 303(d) and

§ 301(b)(1)(C).

The 1977 Stipulation (JA 461) is even weaker than the

1974 permit. The Stipulation contains an obligation to achieve

“applicable water quality standards” by 1993. However, no

effluent limitations are established and in the absence of federal

funds, the Commission can delay completion indefinitely. The

current estimate given by Milwaukee is completion after the

year 2020.

In the 15 years since the passage of the 1965 Federal

Water Pollution Control Act, the Wisconsin authorities have

paid lip service to requiring the achievement of water quality

standards without ever once imposing specific discharge

requirements on the CSO overflows.'® Yet the violation of these

water quality standards is rampant:

“All in all, it is apparent that pollution of the surface waters

from human sources is tremendous. Defendants’ Draft

Facilities Plan (Pl. Ex. 35, at 12). (emphasis added )

* * *

Failure to implement a solution to the problem will cause

the continuation of sanitary sewage-related health hazards

resulting from the introduction of untreated or in-

adequately treated sanitary sewage to the surface wa-

oess,..”

Id. at 279.

Milwaukee has represented to this Court that its pollution

abatement program will achieve water quality standards—as

required by § 301(b)(1)(C). Yet in a Facility Plan published

in Febru:.y 1980, Milwaukee’s Consulting Engineer admitted

its Combined Sewer Abatement project will continue to cause

water quality standards violations for fecal coliform—the in-

dicator organism for pathogenic bacteria. ( Milwaukee

Metropolitan Sewerage District, Combined Sewer Facility Plan

(February, 1980) (hereafter “‘Facility Plan”) p. 6B-190, 6B-

193).

The Milwaukee 1980 Facility Plan showed that a complete

sewer separation would insure elimination of the water quality

standard violations:

19 Nor would addressing these problems be simply a matter of

challenging Wisconsin’s WPDES permit in Wisconsin state courts or

in the federal appellate court under § 509. A prerequisite to permit

obligations is compliance with § 303 which would have necessitated

lengthy litigation in the District Court. See United States Steel Corp.

v. Train, 556 F.2d 822, 836-37 (7th Cir. 1977); Bethlehem Steel Corp.

v. Train, 538 F.2d 513, 517 n.10 (2d Cir. 1976).

This is essentially the same administrative exhaustion issue which

Milwaukee argued in 1971, since the water quality standard

(§ 303(c)), maximum daily load (§ 303(d)), and § 301 (b)(1)(C)

procedure is virtually the same as the water quality standard

/implementation plan requirements of § 10 of the Federal Water

Pollution Control Act Amendments of 1965, P.L. 89-234. In 1972 the

Court sub silentio rejected this identical argument.

“Complete sanitary separation completely eliminates all

FC [fecal coliform] violations due to the CSO.”

Facility Plan, p. 60-19

+ + *

“The resolution cits [sic] the following advantages of

sewer separation over other considered alternatives: ...

Least capital cost ... Lower operation and maintenance

cost ... Assures minimal risk to the environment ...

Removes all human fecal waste from area waterways.”

Facility Plan, p. 7-11

This lower cost, completely effective means of achieving

water quality standards was never presented to the District

Court. As soon as this Court granted certiorari Milwaukee

terminated all discussions about low cost alternatives which

would achieve water quality standards.

B. Wisconsin Permits Are Not a Defense

Milwaukee seeks to justify the weakness of the Wisconsin

abatement requirements through a number of procedural ploys.;

First, Milwaukee’s compliance with these open-ended vague

Wisconsin obligations is not a defense to claims under federal

and state nuisance law. Section 402(k) states that a state

NPDES permit shall be a defense to actions brought under

§ 309 (action by United States) or § 505 (action by private

citizens ) to enforce the Act. However, an action for nuisance is

not a § 309 action nor a § 505 action. See Stream Pollution

Control Board v. United States Steel Corp., 512 F.2d 1036, 1041

(7th Cir. 1975). A permit by an administrative agency is no

defense to a nuisance action.2°

20 New Jersey v. City of New York, 283 U.S. 473, 482-83 (1931).

The law of most states, including Wisconsin and Illinois, is in accord.

See Costas v. City of Fond du Lac, 24 Wis.2d 409, 129 N.W.2d 217,

220 (1964); Landfill, Inc. v. Pollution Control Board, 74 Ill.2d 541,

387 N.E.2d 258, 265 (1978); People ex rel. Scott v. United States

Steel Corp., 40 Ill.App.3d 607, 352 N.E.2d 225 (1976); Venuto v.

Owens-Corning Fiberglas Corp., 22 Cal.App.3d 116, 129, 99 Cal. Rptr.

350, 359 (1971); State ex rel. Shevin v. Tampa Electric Co., 291

So.2d 45 (Fla. App. 1974); Commonwealth ex rel. Schumaker v. New

York & Pa. Co., 367 Pa. 40, 79 A.2d 439 (1951).

C. Illinois Permit Requirements Are As Strict As The

Judgment Order

Next, Milwaukee argues that Illinois requires less stringent

controls for separate sewer overflows and combined sewer

overflows than Milwaukee must meet. Milwaukee is again

wrong. As to separate sanitary sewer overflows, Illinois Pollu-

tion Control Board Rule 602 states that “[o]verflows from

sanitary sewers are expressly prohibited.”

As to the combined sewer area, Illinois requires combined

sewer discharges to achieve water quality standards as required

by § 303(c) and § 301(b)(1)(C) of the federal Act. Contrary

to Milwaukee’s assertion Illinois cannot make these point

sources exempt from the statutory obligations of § 303(c) and

§ 301(b)(1)(C). The maximum delay permitted under the

Clean Water Act to meet water quality standards by municipal-

ities is 1983 and that would require special permission from the

EPA Administrator. § 301(1).

Vil

“COST-EFFECTIVENESS” AS USED IN THE CLEAN WA-

TER ACT MEANS THE LEAST RESOURCE COST TO

ACHIEVE THE REQUIREMENTS OF THE ACT:

“COST-EFFECTIVENESS” DOES NOT ALLOW MIL-

WAUKEE TO VIOLATE WATER QUALITY STAN-

DARDS UNDER § 301(b)(1)(C) AND § 303(c).

Milwaukee argues that the cost of achieving Wisconsin’s

water quality standards for Lake Michigan should allow Mil-

waukee to both avoid and delay its obligation in two ways:

1. Milwaukee argues that the Federal Act requires it to

eliminate only those water quality standards violations that are

“cost-effective” to eliminate; water quality standards violations

which are not cost-effective to eliminate need not be eliminated

no matter how degraded the Lake may be or how many

violations continue.

2. Milwaukee argues that it only needs to eliminate these

“cost-effective” water quality standards violations at its own

financial convenience—even if its convenience means a 50 year

completion schedule and despite the 1977 deadline contained in

§ 301(b)(1)(C). As a part of this argument, Milwaukee

argues that the requirement to comply with § 301(b)(1)(C)

depends on federal grant funds being available.

Milwaukee bases almost all of its arguments on Title II of

the Federal Act—particularly the “cost-effective” language of

§ 212 and § 217. But § 212 and § 217 do not allow Milwaukee

to continue water quality standards violations. Indeed

§ 212(2)(B) of the Act (Ill. App. 7a) specifically provides that

federal grant funds shall be used to fund “the most cost efficient

alternative to comply with sections 30]...” (emphasis added ).

Section 212(2)(C) then mandates that the EPA publish guide-

lines for “cost-effective analysis”.

The EPA has promulgated these guidelines which ex-

plicitly define cost-effective as being that alternative “which will

result in the minimum resource costs over time” to meet federal

requirements. 40 C.F.R. Part 35, Subpart E, Appendix A, 4b

[43 Fed. Reg. 44807 (September 27, 1978) ].

Thus “cost-effective” as used in the Clean Water Act and

defined by EPA simply means the selection of that treatment

system which will result “in the minimum resource costs over

time” to meet § 301 requirements. In this case the § 301

requirement, § 301(b)(1)(C), is the effluent limitation “neces-

sary to meet water quality standards”.

There is no provision in the Federal Act for permitting a

discharge to violate water quality standards adopted pursuant

to § 303. There is a mechanism under the Act whereby high

quality waters may be “downgraded” by downgrading the

water quality standards to a lower level of water quality and

lower beneficial use. 40 C.F.R. § 35.1550 (44 Fed. Reg. 30040

(May 23, 1979)). However, this downgrading procedure

establishes a very rigorous mechanism for using economic

difficulty as a justification for adopting reduced levels of water

quality.

Officials in Wisconsin, Illinois and Milwaukee are fully

aware of the enormous political reaction that would occur in

those States if EPA attempted to approve a “downgrading” of

Lake Michigan from a high quality full body contact recreation-

al water to one that allowed no swimming or swimming at

limited times only. No one has suggested or applied to

downgrade the water quality standards for Lake Michigan.

The sewage agency amici and the General Accounting

Office (GAO) want Congress to change the law to permit water

quality standard violations. GAO has unleashed a barrage of

highly publicized reports—including those mentioned by Mil-

waukee—which on analysis argue that achieving water quality

standards is simply not worth the money. See e.g., General

Accounting Office, Many Water Quality Standards Violations

May Not Be Significant Enough To Justify Costly Preventative

Actions, CED-80-86 (July 2, 1980). GAO’s other reports

—such as its critique of Chicago’s Deep Tunnel Plan—argue

that elimination of water quality standards violations is not

worth the cost and that the standards should be relaxed.

Congress has not changed the law. There has been no

relaxation of § 303(c) (water quality standards must “protect

the public health”); § 303(d) (maximum pollutant loads must

be set at a level which insures achievement of water quality

standards with “a margin of safety”); and § 301(b)(1)(C)

(effluent limitations must achieve water quality standards); or

the definition of cost-effective in § 212.

However, Milwaukee has seized upon an informal EPA

memorandum for grant funding of combined sewer overflows

as a basis to continue violating water quality standards. Pro-

gram Requirements Memorandum, PRM 75-34 [formerly PG-

61]. That memorandum adopts a dramatically different defini-

tion of “cost-effective” than that used in §212. PRM 75-34

adopts a “marginal cost” approach to grant funding which will

fund projects even though § 301(b)(1)(C) and § 303(c) water

quality standards violations still occur.

Under this “marginal” approach to cost-effectiveness, the

discharger need only eliminate those water quality standards

where the “marginal” or incremental cost of removing each

violation continues to decline. According to this approach, once

the marginal costs begin to rise, grant funding stops—no matter

how dirty the water or how many illegal water quality stan-

dards violations occur.

In its recent facility plan, Milwaukee makes a statement

which vividly illustrates Milwaukee’s definitional subterfuge.

“The cost effective solution required by the EPA [under

PRM 75-34] is mot necessarily the cost effective solution

required to _ attain water quality standards

[§ 301(b)(1)(C), §212]. To achieve these standards

additional measures may be required.”

Facility Plan, 3-1 (emphasis added )

Milwaukee wants this Court to give it what it failed to get from

Congress. By substituting their own definition of cost-effective

in place of that used by Congress, Milwaukee and the sewage

agency amici hope to obtain from this Court a judicial amend-

ment to the Clean Water Act, giving judicial approval to “cost-

effective” violations of water quality standards in violation of

§ 301(b)(1)(C) and § 303(c) of the Act. This dispute is best

left to Congress. If Congress wants to change the law to permit

“cost-effective” water quality standards violations, that decision

belongs to Congress, not to this Court.

Vill

THE COST TO MILWAUKEE WAS CONSIDERED BY

THE COURTS BELOW EVEN THOUGH THE DOC-

TRINE OF BALANCING DOES NOT APPLY WHEN A

PUBLIC HEALTH NUISANCE IS INVOLVED

Milwaukee has made much of the purported cost of the

facilities ordered by the District Court. Milwaukee was allowed

to present extensive evidence on costs at trial (testimony of

Richard Heaps, a financial analyst for Milwaukee, TR. 10838-

11122). Heaps testified that the average cost to a homeowner

to meet Milwaukee’s obligations if no federal funds were

available was $5.47 per month. If federal funds are available

the cost is $1.04 per month. (D. Ex., item 13; TR 11039-

11040). Milwaukee’s 300 million dollar claim has no founda-

tion in the record and is based on Milwaukee’s illegal “cost

effective water quality standards violations” theory.

The law is clear that the courts will not allow a public

health hazard to persist on a claim of economic inconvenience.

In People v. City of Port Huron, 305 Mich. 153, 9 N.W.2d 41

(1943), the Michigan Supreme Court affirmed an order to Port

Huron to build a sewage treatment plant. The Michigan

Supreme Court refused to balance equities or comparative

convenience in cases of public health:2'

“Even if we should concur with the trial judge in his

conclusion that ‘a balancing of equities’ favors the city, this

is not a proper case for the application of that doctrine.

The doctrine of ‘comparative injury’ should be confined to

those situations where the plaintiff can be substantially

compensated....

“The doctrine of ‘comparative injury’ should not be in-

voked to justify the continuance of an act that tends to

impair public health.”

9 N.W.2d at 43

The need for Milwaukee to meet the costs of abating its

nuisance discharge to Lake Michigan is amply illustrated by the

lengthy litigation in Wisconsin v. Illinois, 289 U.S. 395 (1933).

There, the Metropolitan Sanitary District of Greater Chicago

and the State of Illinois were required to spend enormous sums

to build huge sewage treatment plants. The fiscal convenience

of defendants was not balanced against the need to remove the

obstruction:

21 The court distinguished this Court’s decision in City of

Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 339 (1932),

on the fact that the injury to the complainant W.S. Dickey Clay Co.

was wholly financial and no public health hazard was involved. See

also Commonwealth ex rel. Schumaker v. New York & Pa. Co., supra

79 A.2d at 444; Board of Comm’rs of Ohio County v. Elm Grove

Mining Co., 9 S.E.2d 813, 817 (W.Va. 1940).

“It already has been decided that the defendants are doing

a wrong to the complainants and that they must stop it.

They must find out a way at their peril ... It can base no

defenses upon difficulties that it has itself created.”

Wisconsin v. Illinois, 281 U.S. 179, 197 (1930)

Three years later the Sanitary District and the State of

Illinois were back before the Supreme Court. The defendants

had been stalling in the construction of the ordered sewage

treatment works and Wisconsin petitioned for enforcement.

“Despite existing economic difficulties, the State has ade-

quate resources, and we find it impossible to conclude that

the State cannot devise appropriate and adequate financial

measures to enable it to afford suitable protection to its

people to the end that its obligation to its sister States, as

adjudged by this Court, shall be properly discharged.”

289 USS. at 410

Clearly economic burdens, even where they do exist

—which is doubtful here—cannot be used as an excuse to avoid

abatement of a public health nuisance.

THE DISTRICT COURT HAD IN PERSONAM JURISDIC-

TION, AND VENUE WAS PROPER IN THE NORTH-

ERN DISTRICT OF ILLINOIS

Milwaukee contends that the case should have been dis-

missed because the District Court was without in personam

jurisdiction over the defendants and because venue was im-

proper. These same arguments were rejected by both the

District Court (Pet. App. H-1—H-4), and the Seventh Circuit

Court of Appeals (Pet. App. A-4—A-6).

A. The District Court Had In Personam Jurisdiction

The District Court’s jurisdiction over the person of a

nonresident defendant is dependent upon the extra-territorial

service statute of the forum State. Fed. R. Civ. P. 4(e). In this

case the Illinois “long arm” statute, Ill. Rev. Stat. ch. 110, §§ 16

and 17, control. Section 17, which lists the actions of a

defendant by which it submits to the jurisdiction of an Illinois

court, includes “[t]he commission of a tortious act within

Illinois.”

The Illinois Supreme Court has squarely held that the long

arm statute reflects a conscious legislative purpose to assert

jurisdiction over nonresident defendants to the extent permitted

by the due process clause. Gray v. American Radiator &

Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761, 763

(1961); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, 679

(1957), and that Section 17 reaches non-resident defendants

who commit acts in other States which result in injury in

Illinois. Gray v. American Radiator & Standard Sanitary Corp.,

supra.22

Despite this authoritative construction of the Illinois stat-

ute—and the finding by the Court of Appeals that “[e]ach year

defendants pump into Lake Michigan millions of gallons of

pathogen-containing sewage, which the district court found is

sometimes carried into Illinois water and presents a substantial

threat of harm to Illinois residents” (Pet. App. A-5)— Mil-

waukee nevertheless clings to untenable positions. It contends

that: 1) its discharge of raw sewage and disease-causing

organisms into Illinois waters does not constitute commission of

a tortious act in Illinois, and 2) in any event, its discharge of

contaminants into Illinois waters does not constitute a sufficient

“minimal contact” with Illinois to support in personam jurisdic-

tion.

1. Discharge of Pathogens Into Illinois Waters Con

stitutes The Commission Of “A Tortious Act Within”

the State of Illinois.

It is beyond dispute that Illinois’ claims against Milwaukee,

both federal and state, sound in tort. Tllinois v. City of

22 The Gray decision was recently cited with approval by this

Court in World-Wide Volkswagen Corp. v. Woodson, CPeb saukuioen

100 S.Ct. 559, 567 (1980).

Milwaukee, 406 U.S. 91 (1971); Cf. Georgia v. Tennessee

Copper Co., 206 U.S. 230, 237 (1907). See also Prosser, Law of

Torts 573-583 (4th ed. 1971).

For purposes of the Illinois long arm statute, “a tort is

committed in the place where the injury occurs.” McBreen v.

Beech Aircraft Corp., 543 F.2d 26, 28 (7th Cir. 1976); Honey-

well, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 1142 (7th Cir.

1975); Consolidated Laboratories, Inc. v. Shandon Scientific

Co., 384 F.2d 797, 802 (7th Cir. 1967); Gray v. American

Radiator & Standard Sanitary Corp., supra.

Illinois alleged and proved that as a result of Milwaukee’s

discharges of raw and untreated sewage, both the citizens of

Illinois and the Lake Michigan territorial waters of Illinois

sustained damage; and consequently for the purposes of

jurisdiction there is no question but that Milwaukee’s conduct

constituted the commission of “‘a tortious act within” Illinois.

2. The Contacts Between Illinois And Milwaukee Are

Sufficient To Support Jn Personam Jurisdiction.

Milwaukee’s argument comes 100 years too late. In the era

of Pennoyer v. Neff, 95 U.S. 714 (1878), attempts by states to

exercise jurisdiction over persons outside of their territorial

limits were invalid. This archaic doctrine and the conceptual

framework which supported it have been rejected. JInter-

national Shoe Co. v. Washington, 326 U.S. 310 (1945); Shaffer

v. Heitner, 433 U.S. 186 (1977). The relevant inquiry is

whether the actions of the defendant establish “certain min-

imum contacts with [the forum State] such that the mainte-

nance of the suit does not offend ‘traditional notions of fair play

and substantial justice’” [citation omitted]. International

Shoe, supra 326 US. at 316.

This Court has addressed this question in the context of

interstate and international water pollution in Ohio v. Wyan-

dotte Chemicals Corp., 401 U.S. 493 (1971). Deciding that

Ohio state courts could exercise jurisdiction over Michigan and

Canadian defendants on claims arising under state common

law nuisance, the Court said:

“The courts of Ohio, under modern principles of the scope

of subject matter and im personam jurisdiction, have a

claim as compelling as any that can be made out for this

Court to exercise jurisdiction to adjudicate the instant

controversy ....”

401 U.S. at 500.23

Nothing in this Court’s recent decision in World-Wide

Volkswagen Corp. v. Woodson, US. —__.,. 100 $.Cs. 559

(1980), suggests any different conclusion than that reached by

the two courts below and by this Court in Ohio v. Wyandotte.

In World-Wide Volkswagen, respondents sought to “... base

jurisdiction on one, isolated occurrence and whatever inferences

can be drawn therefrom ...” Jd. at 568.

Here, by contrast, Milwaukee has engaged in a continuous

and purposeful course of conduct—discharging raw and un-

treated sewage into the interstate waters of Lake Michigan—for

a period of time that stretches across decades and continues to

this very date. It was both foreseeable and expectable by

Milwaukee that Illinois waters and Illinois citizens would suffer

damage as a result of Milwaukee’s intentional tortious conduct.

The propriety of the District Court’s exercise of in person-

am jurisdiction is confirmed by the strength of the State of

Illinois’ interest in the case. Illinois has enacted special

legislation—the Illinois Environmental Protection Act, Ill. Rev.

Stat. ch. 111%, § 1001, et seg.—to protect the environment and

the public health and welfare. Section 12(a) of the Act which

provides the basis for Count II of Illinois’ complaint, specific-

ally protects and provides redress for Illinois victims who are

injured as a result of contaminants discharged in other States.

The prior decisions of this Court establish that this expression

23 See Currie, Enforcement under the Illinois Pollution Law, 70

Nw. U.L.Rev. 389, 394-95 (1975). After Ohio v. Wyandotte, the

constitutionality of extra-territorial service under the Illinois long arm

statute of complaints against out of state pollution sources “is no

longer in doubt.”

by the State of Illinois of its “manifest interest” in providing

effective redress for citizens who have been injured by nonresi-

dents engaged in an activity that the State treats as exceptional

and subjects to special regulation furnishes strong support—if

not a separate basis—for the exercise of in personam jurisdic-

tion over Milwaukee. McGee v. International Life Insurance

Co., 355 U.S. 220, 223 (1957); Hanson v. Denckla, 357 U:S.

235, 252-53 (1958); Kulko v. Superior Court, 436 U.S. 84, 98

(1978).

Under these circumstances, it is neither unfair nor unrea-

sonable to require Milwaukee to defend its conduct in a federal

forum located within Illinois.

B. Venue Was Proper In The Northern District of Illinois

Venue is governed by 28 U.S.C. § 1391(b), which permits

suit in either the “judicial district where all defendants reside, or

in which the claim arose ....”” The Court’s 1972 opinion in this

case noted that this provision gives “flexibility” to venue in this

case. Illinois v. Milwaukee, supra, 406 U.S. at 108 n.10. The

District Court below found that Illinois’ claim arose in the

Northern District of Illinois where the injury occurred, and held

that venue was proper (Pet. App. H-3—H-4), and the Court of

Appeals affirmed (Pet. App. A-6).

1. Illinois’ Claims Are “Transitory” Actions

The first issue raised by Milwaukee is whether Illinois’

claims—including the federal common law of nuisance—are

“transitory” or “local” in nature. Milwaukee has taken the

position that the claims are inherently local and must be

brought in the judicial district where the municipal corporation

is situated.

When this case was previously before this Court, this issue

was resolved conclusively against Milwaukee. The Court

explicitly ruled that the venue of a claim predicated on the

federal common law of nuisance was a federal question gov-

erned by 28 U.S.C. § 1391(b); 406 U.S. at 108, n.10 (Pet. App.

]-17).24 Therefore, by implication, the cause of action is

necessarily transitory:

“Section 1391(b) is the general venue statute governing

transitory causes of action in federal courts where jurisdic-

tion does not depend on diversity of citizenship.”

Denver R.G.W.R. Co. v. Brotherhood of Railroad

Trainmen, 387 U.S. 556, 558 (1967) (emphasis

added )

The historical background underlying the distinction be-

tween “transitory” and “local” actions is aptly summarized as

follows:

“At the early common law all actions had to be

brought in the county in which the events occurred,

because those who served as jurors were expected to

decide the cases on the basis of their own knowledge of the

facts. But with the transition to the present method of

proving facts by the introduction of evidence the necessity

for trying the case where the cause of action arose ceased

to exist. Accordingly, a fiction developed by which the

plaintiff would allege that his cause of action had accrued

in the county where he brought suit. This allegation

became nontraversable in most cases, and such actions

were called ‘transitory;’ those for which it remained tra-

versable were called ‘local’.”

Note, Local Actions in the Federal Courts, 70

Harv. L.Rev. 708, 709-10 (1957)

24 Because this suit involves a federal question and the issue of

venue depends on federal law, Leroy v. Great Western United Corp.,

US. —_, 99 S.Ct. 2710, 2717 n.15 (1979), Milwaukee’s

reliance on cases involving applications of state law (Markham v. City

of Newport News, Va., 184 F.Supp. 659, 665 (E.D.Va. 1960); Parks

Co. v. City of Decatur, 138 F. 550 (6th Cir. 1905)) and which were

decided prior to 1966—when § 1391(b) was amended to provide

flexibility and a choice of venue—is misplaced.

Moreover, the District Court ruling in Markham v. City of

Newport News, Va., 184 F.Supp. 659 (E.D.Va. 1960) relied on by

Milwaukee was later reversed, 292 F.2d 711 (4th Cir. 1961). The

Court of Appeals held that even in diversity cases the State of Virginia

had no power to localize causes of action against municipal corpo-

rations by state statute and thereby oust competent federal courts

from jurisdiction.

The unfortunate result of the federal recognition of “local”

actions has been that “the federal court in the district where the

defendant resides may be unable to hear the action while the

court in the district where the property lies may be unable to

acquire jurisdiction over the defendant.” Jd. at 708. Con-

sequently, in many cases there has been a complete denial of

justice. See, e.g., Ladew v. Tennessee Copper Co., 218 U.S. 357

(1910); Mississippi and M.R. Co. v. Ward, 67 U.S. (2 Black)

485 (1863); Livingston v. Jefferson, 15 Fed. Cases 660 (No.

8411) (C.C. D. Va. 1811).25

25 There is confusion even among eminent legal scholars as to the

analytic distinction between “transitory” and “local” actions. Profes-

sor Moore has characterized the claims in Ladew and Mississippi and

M.R. Co. as “transitory” actions, 1 Moore’s Federal Practice,

4 0.142[2.-1], at 1366 & n.29; while Wright, Miller & Cooper have

labeled the same claims “local,” Wright, Miller & Cooper, 15 Federal

Practice & Procedure § 3822, at 1316 n.31 (1976).

In Ladew the Court held that under the jurisdictional statutes

then in effect a diversity action did not give the lower court personal

jurisdiction over non-resident defendants, where no parties were

residents of the federal district. Plaintiffs, citizens of New York and

West Virginia, who owned property in Georgia and were allegedly

injured by a mining operation in Tennessee owned by a New Jersey

corporation, attempted to show that venue was proper in Tennessee

because they could assert a claim to real property (the mining

operation ) in the district of Tennessee. The Court rejected this claim

finding that “[i]n no just sense can their cause of action be said to

constitute a claim to real property in the districts.” At most, the case

stands for the proposition that a nuisance action is not in rem, and

therefore not local in nature.

In Mississippi & M.R. Co., on the other hand, plaintiff sued in rem

to abate as a nuisance a bridge over the Mississippi River, claiming

that it interfered with the passage of his steam boats. The Court

reversed an injunctive decree, stating that the Iowa district court had

no in rem jurisdiction over the alleged nuisance, because the injury

had occurred on the Illinois side of the river where the main channel

of the stream lay. The Court expressly noted that Ward “asks nothing

from the person of the defendant, but seeks to remove a local object,”

67 U.S. (2 Black) at 494.

This Court has recognized the difficulties engendered by

the “transitory”/“lo¢al” distinction and has narrowly limited

the application of the “local” concept to actions that are in rem.

Casey v. Adams, 102 U.S. 66, 67-68 (1880). Professor Moore is

in full agreement with this limited application of the “local”

action concept:

“The true distinction between a local action and a transi-

tory action is the distinction between an action in rem and

one in personam. The character of the remedy sought

should be determinative.”

1 Moore’s Federal Practice §/0.142[2.1], at 1362-

Measured against this standard, it is clear that Illinois’

claims, which seek injunctive relief and pertain specifically to

Milwaukee, are “transitory” actions.

2. Section 505 Of The Clean Water Act Is Inapplicable

Milwaukee next contends that Section 505 of the Clean

Water Act places venue in the Eastern District of Wisconsin.

By its very terms, however, Section 505 is inapplicable to this

action:

“Any action respecting a violation by a discharge source of

an effluent standard or limitation or an order respecting

such standard or limitation may be brought under this

section only in the judicial district in which such source is

located.”

33 US.C. § 1365(c)(1).

This action was neither (a) respecting an effluent standard

or limitation, nor (b) brought under the citizen suit provisions

of § 505. See Stream Pollution Control Board v. United States

Steel Corp., 512 F.2d 1036, 1041 (7th Cir. 1975). The venue

limitations of § 505(c) are simply irrelevant.

3. Illinois’ Claim “Arose” In The Northern District Of

Illinois

In its 1972 opinion in this case, this Court held that venuc

of Illinois’ federal common law claim is governed by 28 U.S.C.

§ 1391(b) which permits suit in either the “judicial district

where all defendants reside, or in which the claim arose.” 406

U.S. at 108, n.10. The Court noted that the alternatives

provided for in the statute give “flexibility to the choice of

venue.”

The determination of where “the claim arose” for purposes

of federal venue under § 1391 is a federal question whose

answer depends on federal law. Leroy v. Great Western United

Coe

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