Respondents Brief — Milwaukee v. Illinois

Supreme Court, U.S.

FILED

OCT 22 1980

= MICHAEL RODAK, JR., CLERK

SUPREME COURT FOR THE UNITED S¥ATES—

October Term 1979

No. 79-408

CITY OF MILWAUKEE, THE SEWERAGE

COMMISSION OF THE CITY OF MILWAUKEE,

AND THE METROPOLITAN SEWERAGE COMMISSION

OF THE COUNTY OF MILWAUKEE,

Petitioners,

v.

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHIGAN,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENT STATE OF MICHIGAN

FRANK J. KELLEY

Attorney General for the

State of Michigan

Robert A. Derengoski

Solicitor General

Stewart H. Freeman

Thomas J. Emery

Assistant Attorneys General

Business Address:

The Law Building

525 West Ottawa

Lansing, MI 48913

(517) 373-1124

—— 2

PRINTED BY SPEAKER-HINES AND THOMAS, INC., LANSING, MICHIGAN—1980

=>:

i.

QUESTIONS PRESENTED

A: WHETHER THE FEDERAL COMMON LAW OF

NUISANCE PROVIDES. A NECESSARY AND

VIABLE REMEDY FOR INTERSTATE WATER POL-

LUTION DISPUTES?

1. WHETHER THE FEDERAL WATER POLLU-

..TION CONTROL ACT, AS AMENDED IN 1972

AND 1977 PRESERVES STATES RIGHTS TO

APPLY MORE STRINGENT EFFLUENT LIMITS

WHERE GENERAL LIMITS ARE INADEQUATE?

2. WHETHER CONGRESS INTENDED THE PAS-

SAGE OF THE FEDERAL WATER POLLUTION

CONTROL ACT, AS AMENDED, TO EFFECT A

PRE-EMPTION OF THE FEDERAL COMMON

LAW OF NUISANCE AS A REMEDY FOR INTER-

STATE WATER POLLUTION?

3. WHETHER THE JUDICIAL DOCTRINE OF

PRIMARY JURISDICTION BARS FEDERAL

COMMON LAW ACTIONS IN THE FEDERAL

DISTRICT COURTS?

WHETHER APPLICATION OF THE PREPON-

DERANCE OF THE EVIDENCE STANDARD OF

PROOF TO THE FACTS AND CIRCUMSTANCES

OF THIS CASE IS IN ACCORDANCE WITH PRIOR

DECISIONS OF THIS COURT.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................eeeeeee i

AUTHORITIES SPEER oon vw oa Meese ih ap lsh thks iii

IE MAI os kb cs onrces sponges sack aenasges 1

JURISDICTION Lids Labia 'g Gadink bk athe ted debkescen 1

STATEMENT OF THE CASE ..................006. 1

ARGUMENT —

A. The Federal Common Law of Nuisance Provides a

_ Necessary and Viable Remedy for Interstate Water

UIE RIMINI 64 oo 5:0 ak nAWd sone eaad'ant o> ©3 9

1. The FWPCA Provides for State Application of

More Stringent Effluent Limitations on Point

Source Discharges Where General Limits Are

MOI 8o Bis iui a gn cneeN SS eRAA SARK S 10-14

2. The FWPCA as Amended in 1972 and 1977 Pre-

serves Common Law Rights and Remedies Includ-

ing Federal Common Law Nuisance Actions by

States to Abate Interstate Water Pollution ..... 14-17

3. Congress Did Not Intend Passage of the FWPCA

to Pre-empt the Federal Common Law of Nuisance

as a Remedy for Interstate Water Pollution ....17-19

4. The Doctrine of Primary Jurisdiction Does Not

Apply to Bar Federal Common Law Actions

Under the FWPCA ..............ccceceeeees 19-21

B. The Standard of Proof as Applied by the Trial Court

and Affirmed by the Court of Appeals is in Ac-

cordance with Applicable Law .................. 21-23

CAPRIS es Rain cc dm ea pays s ocha wae Voedee bs 23

iif

AUTHORITIES CITED

Page

Committee For The Consideration of the Jones Fall

Sewage System v. Train, 539 F2d 1006 (4th Cir 1976) 18

Conservation Society of Southern Vermont v. Secretary of

_ Transportation, 508 F2d 927 (2d Cir. 1974) .......... 16

EPA v. California, 426 US 200; (1975) ................ 14

Florida Lime and Avocado Growers, Inc. v. Paul,

SE is dy ARK Ada Ged bboy ecuaes 18

Georgia v. Tennessee Copper, 206 US 230 (1907) ...... 8, 21

Illinois v. City of Milwaukee, 406 U.S. 91, (1972) ...... 1,7,9

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

SI Che Ga gn Nina Ca viha vs Reb ce cea Res Pew ad » 3

Illinois v. Milwaukee, 366 F. Supp. 298 (N.D. Ill. 1978) .. 3

Malone v. White Motor Corp., 435 US 497 (1978) ...... 17

Mianus River Committee v. EPA, 541, F2d 899 :

Se ME cab G4 hel rau wR CaN Gd GAR oe unis Cae ages 14

Missouri v. Illinois, 180 US 208, 200 US 496 (1901, 1906) 21

Nader v. Allegheny Airlines, 426 US 290, 1976 ......... 8,19

Natural Resource Defense Council v. Callaway, 524,

ee Fe es PRE a iv Pv ass ves dak N be nee teus 16

Natural Resource Defense Council v. Train, 510 F2d 692

PEG. CR RIPE iia 058 6s hid Fa hed ln in ws ees 15, 16

New York v. New Jersey, 256 US 296 (1921) ............ 21

Ohio v. Wyandotte Chemical Corp., 401 US 493 (1971) ..8, 21

State of Michigan, et al v. City of Allen Park, Fed. District

Court, Eastern District of Mich. File No. 79-74681 .... 13

Ray v. Atlantic Richfield Co., 435 US 151 (1978) ........ 17

United States v. Western Pacific R. Co., 352 US 59 (1956) 19

United States Steel v. Train, 556 F2d 822 (7th Cir 1977) 14

iv

FEDERAL WATER POLLUTION

CONTROL ACT—Sections Cited

Page

Section 33 USC, 4466 et seq, 33 USC §1157, et seq ...... 2

Section 505(e), 33 USC 1365(e) ............ ccc eee eee 7,15

TEE, SE OEE. oc ns does cc hace vececdecseccnu 7

SP PUA UIE 5. nos bp Wee c sec tscdecivececens 7,11

Metis SEG, SP WIS BETO wos nw cece ccccesee 7, 11,14

SE i is bl ke ciao cue kb eeasees 10

Section 301(b)(1)(B), 33 USC 1311(b)(1)(B) ........ 10

Subparagraph (C) §301(b)(1), 33 USC 1311(b)(1)(C) 11

§301(b)(1)(C), 33 USC 1311(b)(1)(C) ...........08. 11

Section 511(a)(1), 33 USC §1371(a)(1) ............-. 14

Section 505(a)(b)(c)(d)(e), 33 USC 1365 ........... 15, 16

OTHER AUTHORITIES CITED

Administrative Procedures Act, 5 USC §§701-706 ...... 15, 16

Clean Air Act Amendment, 510 F2d 692, 700 .......... 16

1 Legislative History of the Water Pollution Control Act

Amendment of 1972, p. 206 and page 331 .......... 13, 14

2 Legislative History 819 ...... 2.0... . ccc cecccecccees 21

PL 92-500, 33 USC 1251, et seq, the Federal Water

Pollution Control Act Amendments of 1972 .......... 2

SINE Fe Fits RRA wh CR as 00a On bee Wag éen sacbinsseees 2

es | Ee Oe aay eee ere 21

AMIS cee SS sing: DE 2

IN THE

SUPREME COURT FOR THE UNITED STATES

October Term 1979

No. 79-408

CITY OF MILWAUKEE, THE SEWERAGE

COMMISSION OF THE CITY OF MILWAUKEE,

AND THE METROPOLITAN SEWERAGE COMMISSION

OF THE COUNTY OF MILWAUKEE,

Petitioners,

v.

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHIGAN,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENT STATE OF MICHIGAN

The Opinions Below, Jurisdiction, and Statutory Provision

Involved sections of Brief of Petitioners are satisfactory to

Respondent, State of Michigan.

STATEMENT OF THE CASE

The State of Michigan (hereinafter ‘Michigan’) includes

this complete statement of the case rather than rely upon or

merely correct inaccuracies in the statement contained in peti-

tioners brief. Petitioners’ statement of the case fails to set out

all the facts that are material to the questions presented.

Rather it consists primarily of argument.

This case had its origin in the Supreme Court decision in

Illinois v. Milwaukee, 406 US 91 (1972). In that case the State

~ =

of Illinois sought leave to file a complaint based on the Supreme

Court's original jurisdiction against four cities and two local

sewerage commissions of the State of Wisconsin. Illinois

alleged that these municipalities were polluting Lake Michi-

gan, an interstate body of water, by the discharge of raw or

inadequately treated human sewage, and sought the abate-

ment of the alleged public nuisance. This Court denied the

motion for leave to file under the Court’s original jurisdiction

without prejudice to the right of the State of Illinois to file

an action under 28 USC §1331 in an appropriate United States

District Court. This Court indicated that such an action

could be premised upon the federal common law of nuisance.

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

sion, the State of Illinois commenced the present action in the

United States District Court for the Northern District of Illinois.

The State of Michigan was granted leave to intervene as a

party plaintiff on November 21, 1972.

In October 1972, Congress enacted PL 92-500; 33 USC

1251, et seq the Federal Water Pollution Control Act Amend-

ments of 1972 (the “Act” or “FWPCA”). That enactment

—made substantial changes to the language of the Federal

Water Pollution Control Act, Act June 30, 1948, C748 which

was amended numerous times through early 1972; Sec 33 USC

§466 et seq, 33 USC §1157 et seq. For purposes of this case,

however, the pertinent amendments are those which occurred

in October 1972.

In December 1977, Congress further amended the FWPCA

through passage of PL 95-217. In Michigan’s view these

amendments have little effect on the portions of the FWPCA

pertinent to this action. Subsequent to service of the com-

plaints, Milwaukee moved to dismiss the action on the ground

that the trial court lacked personal jurisdiction, and that venue

of the action did not properly lie in the Northern District of

nin

Illinois. The District Court denied these motions. Illinois

v. Milwaukee, 4 E.R.C. 1849 (N.D. Ill. 1972) (App.). Milwau-

kee then moved to dismiss the complaint pursuant to Rule

12(b) of the Federal Rules of Civil Procedure. This motion

was also denied. Illinois v. Milwaukee, 366 F. Supp. 298 (N.D.

Ill. 1978). This action was brought against the cities of Mil-

waukee, Kenosha, Racine and South Milwaukee and the Sewer-

age Commission of the City of Milwaukee and the Metropolitan

Sewerage Commission of the County of Milwaukee. Negotiated

agreements with the cities of Kenosha, Racine and South Mil-

waukee were completed prior to the trial. Thereafter, those

municipalities did not take an active role in the proceedings.

Trial commenced on January 11, 1977. During the ensuing

six months over 14,000 pages of transcript were produced, and

hundreds of exhibits entered into evidence. The testimony

covered highly technical subject matter and involved extensive

use of expert testimony to present scientific facts and theories

in such fields as limnology, oceanography and virology, as

well as engineering concepts.

The thrust of the State of Michigan’s allegations were that

discharges of raw or inadequately treated sewage from peti-

tioners’ wastewater treatment facilities or directly from sewers

during combined sewer overflows (CSO) contributed excessive

nutrients, primarily phosphorus, to Lake Michigan. Such dis-

charges were alleged to be contributing to the “cultural” or

“accelerated” eutrophication (aging) of Lake Michigan.{1]

These allegations coincided with similar allegations by the

State of Illinois.

In fact the testimony at trial established that the nutrient,

[1]

Eutrophication refers to the increase in nutrient concentration in a

body of water and the consequent increase in biological activity, includ-

ing growth of algae and other organisms. Appendix to Petition for

Certiorari B-26. Future citation to petition for certiorari will read as

Se gi as Sate alate

din

phosphorus, is a component of sewage treatment plant dis-

charges (T-12561, 12685) and that sewage treatment plant

discharges contribute to “accelerated” eutrophication of lakes

into which it is discharged (T-3249). Sewage discharges

carry many of the essential elements for plant growth; (T-3254;

2889). Petitioners are the source of an annual phosphorus dis-

charge in excess of 1,000,000 pounds. (Tr. 12929). Phosphorus

is one of the key nutrients to increased growth of plant life

in Lake Michigan because it is a limiting nutrient (T-3254).

Excessive and unlimited growth of such plants leads to de-

velopment of a scummy or soupy appearance to the entire

water column (T-3307) and the shoreline (T-3321), depletion

of oxygen in the bottom layers of water; (T-3311, T-3321) and

potential taste and odor problems in drinking water taken from

the lake (T-3279). Lake Michigan is a major source of drink-

ing water for the inhabitants of the Lake Michigan basin.

Further, it is a major recreational attraction.

Based upon the evidence presented the Trial Court made

specific findings that “cultural” or “accelerated” eutrophica-

tion was occurring in Lake Michigan. Further it found that

Petitioners discharges of phosphorus and other nutrients in

raw or inadequately treated sewage was a significant cause of

this accelerated aging process or eutrophication of Lake

Michigan.

“I find that as a result of the inputs of phosphorus and

other nutrients to Lake Michigan, the lake is undergoing

accelerated eutrophication. Accelerated eutrophication is

that eutrophication which is caused by man, as opposed

to the eutrophication which occurs inevitably and natu-

rally.” (A. Pet. F-16)

“Accelerated eutrophication results in taste and odor

problems in the lake water. In an advanced state, this

—5—

odor problem can affect the use of the water for recrea-

tional purposes, and even in a less advanced stage, it can

cause problems with drinking water.” (A. Pet. F-16)

“In addition to the odor and taste problems caused by

eutrophication, there is a loss of the clarity of the water,

which is an aesthetic value important to many people,

and I think rightly so. A secchi disc in Lake Superior

can be seen at a depth of 60 feet. In Lake Michigan it

can be seen at a depth of 10 to 15 feet only. Lake Superior

is an ologotrophic lake. Lake Michigan is becoming a lake

which exhibits the turbidity typical of lakes inhabited by

increasing populations of algae.” (A. Pet. F-17).

“The accelerated eutrophication caused by these nutri-

ent inputs is far greater in the in-shore zone than it is in

the off-shore zone, but there is no reason to believe that

the eutrophication found in the in-shore zone will not

spread, and, if not stopped, that it will not spread clear

across the lake. That is the way it happened in Lake Erie.”

(A. Pet. F-17)

“I find that the waters of Lake Michigan within the

territorial boundaries of the State of Illinois are under-

going a process of accelerated eutrophication at the present

time and that this process is caused by nutrient inputs,

some of which emanate from the defendants. As has been

pointed out by everyone in this case, there is no method

of identifying any particular molecule of phosphorus or

nitrogen or any other chemical as having come from a

particular location. But because the waters of the in-shore

zone interchange with each other and do mix longitudinally

along the shore, it is a fact, both inferrable circumstantially

‘and deducible:as a matter of logic; that all input of nutri-

~6-

ents along the western shore contribute to the accelerated

eutrophication of the entire western shore line.” (A. Pet.

F-17)

“Because of the interchange of water between the in-

shore zone and the off-shore zone and the eventual mixing

of the entire lake, the State of Michigan is exposed to

injury and is being injured by the discharges of nutrients

by these defendants.” (A. Pet. F-18)

“In any event, I believe that one million pounds of

phosphorus from the treatment plants alone, without con-

sidering additional phosphorus discharged by the over-

flows, is a significant input to the lake, and its removal

would be significant removal. We know that Milwaukee

is the biggest point source on the lake and that, of the

total point sources on the lake, the Milwaukee discharges

constitute a substantial percentage.” (A. Pet. F-20)

The trial court then summarized the totality of the evidence

with the following determinations based on the facts in evi-

dence:

“I find from what I believe is clear and convincing

evidence that the defendants’ sewage discharges into

Lake Michigan are presently contributing in a substantial

way to the accelerated eutrophication of the in-shore zone

of the western shore of Lake Michigan, including waters

of Lake Michigan which are within the territorial bound-

aries of the State of Illinois.” (A. Pet. F-22)

“I find further, on the basis of clear and convincing

evidence, that due to the interchange of waters in the

niin

in-shore and off-shore zones, the defendant’s discharges, if

continued at anything like present levels, will substantially

contribute to the accelerated eutrophication of Lake Mich-

igan as a whole, including waters within the territorial

boundaries of the States of Illinois and Michigan.” (A.

Pet. F-23)

As a result of these findings the Court imposed a limitation

on the concentration of phosphorus that petitioners may dis-

charge from their sewage treatment facilities. That limitation

is set at a concentration no more that one (1) miligram per

liter (1 mg/l) based on a monthly average. (A-361). The

Seventh Circuit affirmed the district court order insofar as

it imposed this particular effluent limitation for phosphorus

discharges.

SUMMARY OF ARGUMENT

A. This Court specifically recognized the Federal Common

Law of nuisance as a remedy for interstate pollution problems

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

the Federal Water Pollution Control Act was amended com-

prehensively since that decision the Act contains clear con-

gressional intent to preserve the federal common law rem-

edies. Sections 505(e) of the Act, 33 USC 1365(e) enunciates

the intent to preserve all existing remedies. Section 511, 33

USC 1371 preserves the authority of Federal officers or

agencies and may be applied to include Federal Courts. Thus,

federal common law of nuisance actions may be heard in

federal courts. The imposition of more stringent limits than

generally applicable is specifically authorized by Sections 301,

33 USC 1311 and Section 510; 33 USC 1370 of the Act.

B. In order to pre-empt the common law through enact-

ment of a federal statutory scheme Congress must clearly

manifest intent to cause such pre-emption. In this case, Con-

win

gress has not only failed to manifest intent to pre-empt the

federal common law of nuisance, but, it has in fact indicated

an opposite intent, ie. the preservation of common law rem-

edies.

C. The doctrine of “primary jurisdiction” is not applicable

to this case to oust the federal district court of jurisdiction.

Where a statute contains a savings clause preserving common

law rights the doctrine need not be applied unless failure to

do so would cause irreconciable conflict between the statutory

scheme and the preserved common law remedies Nader v.

Allegheny Airlines, 426 US 290, (1976). The FWPCA preserves

common law remedies. Application of and compliance with

the Court-imposed phosphorus limitation is not inconsistent or

in conflict with Petitioners State of Wisconsin issued National

Pollutant Discharge Elimination System (NPDES) permit re-

quirements.

D. The “preponderance of the evidence” standard of proof

applied by the Trial Court in this case was the appropriate

standard and is in accord with the decisions of this Court. The

“preponderance of the evidence” test is the widely applied

standard for nuisance actions of common law. This Court has

applied it where interstate pollution cases are involved. Georgia

v. Tennessee Copper, 206 US 230 (1907).

The “clear and convincing” standard, on the other hand, is

generally applied where the interstate dispute concerns two

states. Ohio v. Wyandotte Chemical Corp., 401 US 493 (1971).

This Court has applied the “clear and convincing” standard in

part in order to give recognition to the State’s status as a

sovereign. Such status is not applicable to the petitioners in

this case. Thus, the rationale for application of the “clear and

convincing” standard is inapplicable, as well.

opin

E. The Petitioners are the major contributors of point

source sewage discharges to Lake Michigan. Sewage dis-

charges. contain excessive concentrations of the nutrient

phosphorus. Such discharges are a major cause of the ac-

celerated eutrophication (aging) of Lake Michigan.

ARGUMENT

A. THE FEDERAL COMMON LAW OF NUISANCE

PROVIDES A NECESSARY AND VIABLE REMEDY

FOR INTERSTATE WATER POLLUTION DIS-

PUTES.

This Court recognized the federal common law of nuisance

as a remedy for interstate water pollution problems in Illinois

v. Milwaukee, 406 US 91 (1972). Petitioners (hereafter ‘Com-

missions’) appear to argue that in light of the passage of the

Federal Water Pollution Control Act amendments of 1972 and

1977, (hereafter ‘FWPCA’ or ‘the act’) the federal common

law of nuisance is no longer a necessary or appropriate remedy

for interstate water pollution disputes. Their arguments seem

based both on the claim of congressional pre-emption of the

subject matter by comprehensive legislation, i.e. the FWPCA,

and the doctrine of “primary jurisdiction” by which courts

should defer to administrative determinations under the

FWPCA.

Respondent, State of Michigan (hereafter ‘Michigan’) sub-

mits that the Commissions’ arguments, however grounded, do

not comport with either congressional intent or with prior

decisions of this Court. Just as significantly, Michigan submits

that despite passage of the amended FWPCA subsequent to

Illinois v. Milwaukee supra, the federal common law continues

to be a necessary and appropriate remedy for interstate water

pollution problems, supplemental to the legislative scheme of

the FWPCA.

~10—

1, THE FWPCA PROVIDES FOR STATE APPLICATION

OF MORE STRINGENT EFFLUENT LIMITATIONS

ON POINT SOURCE DISCHARGES WHERE GEN-

ERAL LIMITS ARE INADEQUATE.

The plain language of the FWPCA demonstrates con-

gressional intent to provide broad state authority to deal with

specific water pollution problems not adequately addressed by

the general minimum effluent limits imposed under the Act.

Section 101; 33 USC 1251 sets forth the following broad decla-

ration of goals:

“Sec. 101(a) The objective of this act is to restore and

maintain the chemical, physical and biological integrity

of the nation’s water...”

“(b) It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities “and

«rights of states to prevent, reduce and eliminate pollution,

to plan the development and use . . . of the land and

water resources. . . .” (Emphasis supplied).

a

The above-quoted language indicates congressional intent to

provide within the framework of the FWPCA a broad scope

of activity for states in combatting pollution problems. This

language was included in the 1972 amendments. It remains

exactly the same following the 1977 amendments. Significantly,

Congress did not make any change in the language or the

policy which it reflects.

Section 301(b)(1)(B) of the FWPCA; 33 USC 1311(b) (1)

(B); provides that the administrator of the United States En-

vironmental Protection Agency (hereafter USEPA) will estab-

lish effluent limitations for publicly-owned wastewater treat-

ment works. These limits are of a general nature and prescribe

the minimum level of regulation. For example, municipal

‘falta:

wastewater treatment facilities were to have achieved a min-

imum of secondary treatment not later than July 1, 1977. The

USEPA has, by regulation, imposed secondary treatment dis-

charge limitations of 30 miligrams per liter (mg/1) biological

oxygen demand (BOD) and 30 mg/1 total suspended solids

(TSS){2]. However, this established limitation need not set

an absolute uniform discharge limit for all circumstances. Sub-

paragraph (C) of §301(b)(1); 33 USC 1311(b)(1)(C) pro-

vides that a state may establish any more stringent limitations,

including those necessary to meet water quality standards,

whenever deemed necessary by that state. The pertinent pro-

vision reads in part as follows:

“(b) In order to carry out the objective of this chapter

there shall be achieved—

“(1) (C) not later than July 1, 1977, any more stringent

limitation including those necessary to meet water quality

standards, treatment standards, or schedule of compliance,

established pursuant to any state law or regulation, (under

authority preserved by section 510) or any other federal

law or regulation or required to implement any applicable

water quality standard established pursuant to this act.”

(Emphasis supplied).

Clearly under the FWPCA, states maintain authority to de-

velop and enforce more stringent limitations than those re-

quired under §301; 33 USC 1311. The USEPA limit is not

intended to be the exclusive and ultimate limit; states may

set and impose more stringent limits.

Section 510 of the FWPCA; 33 USC 1370, dovetails neatly

with §301(b)(1)(C); 33 USC 1311(b)(1)(C) to clearly set

[2]

See 40 CFR §133.102.

a

forth congressional intent that states retain broad authority to

apply more stringent effluent limitations to point source dis-

chargers than provided for in the federal statute. That section

provides in part:

“Sec. 510. Except as expressly provided in this act,

nothing in this act shall (1) preclude or deny the right of

any state or political subdivision thereof .. to adopt or

enforce (A) any standard or limitation respecting dis-

charges of pollutants, or (B) any requirement respecting

control or abatement of pollution; except that if an ef-

fluent limitation . . . is in effect under this act, such state

or political subdivision . . . may not adopt or enforce any

effluent limitation, . . . which is less stringent than the

effluent limitation . . . under this act; or (2) be construed

as impairing or in any manner affecting any right or

jurisdiction of the state with respect to the waters (in-

cluding boundary waters) or such states.”

The states are clearly empowered by Congress to implement

and apply more stringent limitations (but not less stringent)

on discharges. In fact the State of Michigan has imposed

more restrictive limits on the effluent of municipal wastewater

treatment facilities in several Lake Michigan basin com-

munities[3], Nor do the FWPCA sections discussed thus far

indicate any congressional limitation on States’ use of ap-

propriate judicial forums. In fact, the explicit preservation of

rights contained in proviso number 2 in the above quoted

Section 510 of the FWPCA seems a clear indication that state

remedies for pollution of interstate waters, including federal

common law nuisance claims, are to remain viable options in

[3] '

State issued NPDES Permit No. MI 0026069 limits the City of Grand

Rapids sewage treatment facility to a discharge of 10 mg/l BOD and

15 mg/1 suspended solids calculated on a 30 day average. State issued

NPDES Permit No. MI 0023108 imposes similar limits on the City of

Holland sewage treatment facility.

—13-—

the abatement of water pollution problems. By way of example,

in a recent Federal action the State of Michigan has compelled

a municipality to comply with the provisions of a state issued

discharge permit which requires elimination of combined

sewer overflows.[4]

Reference to the Legislative history of the FWPCA rather

pointedly confirms that Congress intended to preserve the

rights of states to apply more stringent discharge limitations.

The following colloguy involving the chief senate sponsor of

the Act is illustrative:

“Mr. Nelson.—May I ask one question: Is there any-

thing in the bill that would prohibit any State from estab-

lishing any water quality standard higher than the stand-

ards established under this act?

Mr. Muskie. I say to the Senator that I wanted to check

with the staff to be sure I was correct that the States’

rights are fully protected.

Mr. Nelson. They may have a higher standard?

Mr. Muskie. That is correct.”

1 Legislative History of the Water Pollution Control Act

Amendments of 1972 p. 206. (Hereafter “Legislative His-

tory’).

With respect to the authority preserved by Section 510; 33

USC 1370 the Congressional Conference Report stated:

“Section 510 provides that States, political subdivisions,

and interstate agencies retain the right to set more restric-

tive standards and limitations than those imposed under

this Act.”

[4]

State of Michigan, et al v. City of Allen Park, Fed. District Court,

Eastern District of Michigan File No. 79-74681.

—14—

1 Legislative history 331.

This Court has given recognition to the right of States to

establish more stringent discharge limitations than those gen-

eral limitations applied under the federal authority of the Act.

In EPA v. California, 426 US 200; (1975) this Court generally

reviewed the impact of the 1972 amendments to the FWPCA

on water pollution regulation, enforcement and abatement. This

Court specifically recognized in EPA v. California, supra p 204,

220, a States’ right to set more stringent limitations in ap-

propriate circumstances and further indicated that under

proper conditions the USEPA is obligated to include such more

stringent limits established by States in permits it issues. Ac-

-cord,: U.S. Steel v. Train, 556 F2d 822 (7th Cir 1977); Mianus

River Committee v. EPA, 541 F2d 899 (2d Cir. 1976).

2. THE FWPCA AS AMENDED IN 1972 AND 1977

PRESERVES COMMON LAW RIGHTS AND REM-

EDIES INCLUDING FEDERAL COMMON LAW

NUISANCE ACTIONS BY STATES TO ABATE INTER-

STATE WATER POLLUTION.

Congress, by enactment of the FWPCA, has established a

comprehensive and detailed plan for nationwide water pollu-

tion control. Just as clearly, however, as discussed in Section

A hereof, the effluent limits and other control measures im-

posed under the Act do not preclude State imposition of more

stringent limitations. Section 510; 33 USC 1370, supra. These

preserved States’ rights read together with the Congressional

statement in Section 511(a)(1); 33 USC §1371(a)(1) that

nothing in the Act “shall be construed as (1) limiting the

authority or functions of any officer or agency of the United

States under any other law or regulation not inconsistent” with

the Act, suggests that federal courts retain their jurisdiction

to hear actions under the federal common law of nuisance.

Such actions may be brought to apply more stringent limita-

5

tions to particular discharges based upon the specific factual

situation. Application of more stringent limitations, through

a federal court where necessary, would be in accordance with

the proper “authority” of an “officer of the United States under

other [federal] law,” i.e. federal common law of nuisance. The

application of more stringent limits is certainly not inconsistent

with the purposes and intent of the Act.

A further significant indication of Congressional intent to

preserve the role of the courts and federal common law claims

is found in the “citizen suit” provisions of the Act, Section 505;

33 USC 1365. Section 505(a) establishes the cause of action

on behalf of private citizens. Section 505(b), (c) and (d)

specify certain notice, venue and other factors applicable to

such suits. The key provision of that section for purposes of this

case is Section 505(e), which reads as follows:

“(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).” (Emphasis supplied).

Under Section 505(a) Congress specifically provided for

a greater access to the courts for ‘citizens’ as defined in section

505(g). The purpose of such actions was to facilitate enforce-

ment of effluent limits and administrative orders and further

to provide a means of ensuring governmental compliance with

duties imposed by the Act. Then Section 505(e) indicates

that by providing for these ‘citizens suits’ under 505(a) other

rights to bring actions were not displaced. See Natural Re-

sources Defense Council v. Train 510 F2d 692 (D.C. Cir 1975)

dealing with the inter-relationship of Sections 505(a), (b) and

(e) and their impact on Federal Court jurisdiction under 28

USC §1331 and the Administrative Procedures Act, 5 USC

16

§§701-706. The former matter is of particular pertinence. The

D.C. Circuit determined that it must look to the legislative

history to establish the relationship of the subsections men-

tioned. First, the D.C. Circuit referred to the legislative history

of the Clean Air Act Amendments which preceded and were

the model for smilar provision in the FWPCA. It determined

that:

“The legislative history of the Clean Air Act Amend-

ments reveals that the citizen suits provision reflected a

deliberate choice by Congress to widen citizen access to

the courts, as a supplemental and effective assurance that

the act would be implemented and enforced.” (510 F2d

692, 700).

It also determined that the same intent of Congress was

exhibited in the FWPCA amendments of 1972. Consequently,

the court concluded as follows:

“The limitations, in subsections (a) and (b) of §505,

restrict the expansion of jurisdiction provided by the

special citizen suits provision of §505(a), and do not cut

back on federal court jurisdiction over actions that would

have been maintainable even in the absence of that special

authorization. This intent is confirmed by the savings

clause of subsection (e).” (510 F2d 692, 702).

The Second Circuit made a similar analysis regarding the

citizen suit provisions and specific effect of §505(e) of the

FWPCA. Both Conservation Society of Southern Vermont v.

Secretary of Transportation, 508 F2d 927 (2d Cir. 1974) and

Natural Resources Defense Council v. Callaway, 524 F2d 79

(2d Cir. 1975), are in accord with NRDC v. Train, supra.

The same analysis applied to Section 505(e) supports con-

tinued federal court jurisdiction of federal common law ac-

==

tions. In Illinois v. Milwaukee, supra, p. 8, this Court pro-

vided that federal common law actions should be brought

under 33 USC §1331. Nor is there anything in Section 505(e)

that suggests that it only applies to state common law actions

and excludes those under federal common law.

Significantly, when the FWPCA was amended in 1977 fol-

lowing the above line of cases, the ‘citizen suit’ provisions

remained unchanged. Congress showed no inclination to alter

the broad role courts would play in effectuating the purposes

of the Act.

Even though Congress provided a comprehensive water pol-

lution control scheme through passage of the FWPCA, it also

preserved and fostered a broad role for the courts as well.

Through actions under the federal common law of nuisance

the courts may play an important role in implementing the

purposes of the Act.

3. CONGRESS DID NOT INTEND PASSAGE OF THE

FWPCA TO PRE-EMPT THE FEDERAL COMMON

LAW OF NUISANCE AS A REMEDY FOR INTER-

STATE WATER POLLUTION.

Whether a federal statutory scheme results in a pre-emption

of common law depends upon congressional intent. The pur-

pose of Congress is the ultimate touchstone. Malone v. White

Motor Corp. 435 US 497 (1978); Ray v. Atlantic Richfield Co.

435 US 151 (1978). Here there is no evidence that Congress

intended the common law remedies already in existence to be

pre-empted. In fact, as discussed in part I, A and B of this

brief the contrary intent is clearly evident.

This court has also grounded a determination of pre-emption

of other law upon a finding of conflict between it and federal

law. A conflict will be found where compliance with both

= 8

federal and state regulations is a physical impossibility. Florida

Lime & Avocado Growers, Inc. v. Paul, 373 US 132 (1963).

There is no evidence that compliance with the court order in

this case will cause Petitioners compliance with their NPDES

permit or any other applicable portion of the Act or regulations

to be a ‘physical impossibility’. The court ordered a limit upon

discharge of the nutrient phosphorus from the Petitioners

sewage treatment plants is identical to their state imposed

NPDES permit limitation on phosphorus discharges.

Petitioners purport to find support for their position that

the FWPCA and the effluent limitations promulgated there-

under by the USEPA ure the sole limitation that may be placed

upon municipal wastewater discharges in Committee For The

Consideration of the jones Full Sewage System v. Train, 539

F2d 1006 (4th cir 1976). However, careful reading of the

Jones Falls case shows that Petitioners’ reliance upon that case

is misplaced. In the Jones Falls case, the court was very care-

ful to point out that the complainant therein was not a state

nor was there an allegation of interstate harm. The ruling was

based squarely on the fact that the alleged pollution was intra-

state, i.e. local’ in nature according to the court's analysis. On

that basis alone, and without regard to the merits of the Court

of Appeals decision in that case, it is distinguishable from the

case at bar.

Two other facets of the Jones Falls case should be noted.

First, under the facts of the case the fourth circuit acknowl-

edged that State courts could apply State common law more

rigidly to the discharges at issue. Second, had the facts that

exist in the case at bar been present, i.e. state complainant

and interstate pollution the fourth circuit undoubtedly would

have recognized the application of the Federal common law

of Nuisance.

—19—

The following quotation from the Jones Falls case, is of

pertinence:

“We may thus take it as established that there is a

body of federal common law by which a public nuisance

in one state which infringes upon the environmental and

ecological rights of another state may be abated. As thus

applied, there is an acceptable accommodation of state

and national interest [footnote omitted]. Too, as the

Supreme Court observed in Illinois v. Milwaukee, there is

much federal interest in interstate and navigable waters.

Yet, the statute was largely designed to enlist the aid

of the states and, through state action, to achieve the

final objective of purity of waters .. .”

Actually, then, the Jones Falls case provides support for the

continued viability of the federal common law of nuisance, at

least as applied to the circumstances of this case.

4. THE DOCTRINE OF PRIMARY JURISDICTION

DOES NOT APPLY TO BAR FEDERAL COMMON

LAW ACTIONS UNDER THE FWPCA.

Petitioners raise this argument in several places in their

brief, (pp 17, 18 and 31). They claim that the court should

have deferred to the “expert administrative agency.” The

doctrine of primary jurisdiction is concerned with promoting

the proper relationships between courts and administrative

agencies. Nader v. Allegheny Airlines, Inc. 426 US 290 (1976);

United States v. Western Pacific R. Co. 352 US 59 (1956).

Where a statute contains a savings clause regarding com-

mon law rights the doctrine need not be applied except

where failure of the court to defer would cause irreconcilable

conflict between the statutory scheme and the preserved com-

mon law remedies. Nader v. Allegheny Airlines and U.S. v.

Western Pac. R. Co., supra.

~20-

Application of federal common law remedies pursuant to

section 505(e) of the FWPCA does not create a situation of

irreconcilable conflict a8 referred to in prior cases. Compliance

with the 1 mg/1 monthly phosphorus discharge limit of lower

court order entered here will not conflict with or prevent

compliance with the State of Wisconsin’s NPDES permit limit

of 1 mg/1 discharge monthly average.

With respect to Petitioners’ claims that the Courts should

defer to the “expert administrative agency”, congressional

intent appears just the opposite. The legislative history in-

dicates congressional recognition of a broader role for the

courts. The following comments as illustrative:

“There can be little question based on the increasing

number of public works projects which are being litigated

that individual citizens and environmental groups have

turned and are continuing to turn to legal action as a

remedy for what they consider to be errors on the part

of the Government. They are no longer willing to rely

on the administrative process to work but instead have

taken the initiative in having the forum for decision-

making be in the court room.

The Committee appreciates the growing citizen aware-

ness of their rights to utilize the courts.

However, the Committee is also concerned that this

movement to the courts may have been brought about

by inadequate recognition on the part of the administra-

tive agencies as to the proper role of the public . . . It is

with the understanding that steps are necessary to restore

the public’s confidence and to open wide the opportunities

for the public to participate in a meaningful way in the

decisions of government, that the Committee has included

~2]—

in the proposed legislation various steps to arrive at this

goal.

¢ ° °

[The] Fifth [Step] Committee has incorporated into

this legislation this section (505) specifically dealing with

citizen suits.”

2 Legislative History 819.

B. THE STANDARD OF PROOF AS APPLIED BY THE

TRIAL COURT AND AFFIRMED BY THE COURT

OF APPEALS IS IN ACCORDANCE WITH AP-

PLICABLE LAW.

Petitioners claim that the standard of proof utilized by the

Trial Court and affirmed by the Court of Appeals in this case

is in conflict with prior decisions of this Court. Petitioners

refer to the prior Supreme Court cases, Missouri v. Illinois,

180 US 208, 200 US 496 (1901, 1906); New York v. New Jersey,

256 US 296 (1921). Both of those cases involved controversies

between states as sovereigns heard under the original jurisdic-

tion of this Court. In recognition of the sovereign status of the

States involved and because of the extraordinary nature of the

action this Court applied the “clear and convincing” evidence

standard of proof. Ohio v. Wyandotte Chemical Corp., 401

US 493 (1971). However, in this Court's exercise of its original

jurisdiction in interstate pollution cases where only the plaintiff

was a sovereign state and the defendant was a private party,

the “preponderance of the evidence” standard was applied.

Georgia v. Tennessee Copper, 206 US 230 (1907).

Here the action was brought against a political subdivision

of a state. Such political subdivisions are not “states” as used

in 28 USC §1251(a)(1), Minois v. Milwaukee, supra p. 7.

On the other hand the cases cited by Petitioners and mentioned

—22—

above involve controversies between sovereign states. Thus

the clear and convincing standard of proof required in those

cases involving controversies between sovereign states is in-

applicable here.

Petitioners claim that there is no evidence of specific algae

or taste and odor problems related to Milwaukee’s discharges.

Obviously, the record does not include proof that Lake

Michigan is now in a eutrophic state. What it does show is

that conditions demonstrating the existence of “accelerated or

cultural eutrophication” are present. Included in these condi-

tions is the fact of excessive phosphorus discharges by Peti-

tioners (A. Pet. F-20). Further the record demonstrates

numerous changes in types and quantities of biological

organisms (T-3254) and increase in taste and odor problems

in drinking water in waters that are already eutrophic (T-

3279). Under Petitioners’ apparent theory, in order to garner

the empirical and demonstrative evidence to prove a nuisance

Respondents would be obliged to wait until the lake had suf-

fered severe and perhaps irreparable pollution, i.e. eutrophica-

tion. With evidencs then available Petitioners might be willing

to cease their discharges. Clearly such specious reasoning

must fall of its own weight. The Courts below had before

them numerous actual studies at various locations in the Great

Lakes and other bodies of water showing changes in the water

related to nutrient inputs. (A. Pet. B-26). The record also

clearly showed that Milwaukee was the source of over

1,000,000 pounds of phosphorus input into Lake Michigan each

year (T-12929). Petitioners’ argument that Respondents relied

only upon theories is inaccurate.

Petitioners set forth the proposition that the trial Court im-

properly considered the highly technical matters presented in

this lawsuit. Instead, Petitioners would have had the Trial

Court defer to the “expertise of the administrative body set

~23—

up by Congress to deal with this subject”, ie., the United

States Environmental Protection Agency (USEPA). Yet in-

terestingly enough, at no point during the pendency of this

action did this “expert administrative body” take an active

role in presenting their position or expertise to the Court.

CONCLUSION

Your Respondent, State of Michigan, respectfully requests

that this Court affirm the decision of the Court below.

Respectfully submitted,

FRANK J. KELLEY

Attorney General for the

State of Michigan

Robert A. Derengoski

Solicitor General

Stewart H. Freeman

Assistant Attorney General

Thomas J. Emery /s/

Thomas J. Emery

Assistant Attorney General

Attorneys for Respondent

State of Michigan

Business Address:

525 West Ottawa

Lansing, MI 48913

(517) 373-1124

Dated: September 4, 1980