Amicus Brief — Milwaukee v. Illinois

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Supreme Court, U. &. ~

FILED

SEP 8 = 1980

AS HAST RODAK, IR, (LIBR

Yur the Suysrene Court of the Baritod States e)

OCTOBER TERM, 1979

No. 79-408

Ciry OF MILWAUKEE, ET AL., PETITIONERS

Vv.

PEOPLE OF THE STATE OF ILLINOIS, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

Lou!is F. CLAIBORNE

Deputy Solicitor General

ANDREW J. LEVANDER

Assistant to the Solicitor General

DirK D. SNEL

MARTIN W. MATZEN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

MICHELE B. CORASH

General Counsel

Lucy ELLEN RAY

Attorney

Environmental Protection Agency

Washington, D.C. 20460

——EE

In the Supreme Court of the Huited States

OCTOBER TERM, 1979

No. 79-408

CITY OF MILWAUKEE, ET AL., PETITIONERS

PEOPLE OF THE STATE OF ILLINOIS, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

The United States will discuss the following question:

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

preempts the federal common law of nuisance regarding

the pollution of interstate and navigable waters.

III

TABLE OF CONTENTS

Page

Interest of the United Bistee .. ...5cck tases eraes 1

Statement:

A. Introduction and background ............. 2

B. The proceedings below ...............0065 10

Summary of armel «oss oes 04s 5 cs 09 5eneenkeeee 13

Argument:

THE CLEAN WATER ACT NEITHER

PREEMPTS NOR MARKS THE OUTER

BOUNDS OF THE FEDERAL COMMON

LAW OF NUISANCE REGARDING IN-

TERSTATE WATER POLLUTION ......... 16

A. Introduction: The federal common law of

DURAN <3 ko sb sk eee 16

B. The Clean Water Act expressly preserves

- independent federal common law rights and

remedies regarding the abatement of water

WOMEAON ocd k co eun thiness cece eeeean 21

C. Preservation of the federal common law of

nuisance will effectuate the policies and

goals of the Clean Water Act ............. 27

CORCTION o ooaicdiiadesaadideeseceeel alee 33

TABLE OF AUTHORITIES

Cases:

Andrus v. Allard, 444 U.S. 51 .............. 25

Arizona v. California, 373 U.S. 546 ......... 20

Askew v. American Waterways Operators,

Ene., 4953 UE. Besa ince veuscansecereee 28

Baltimore & Potomac R. R. v. Fifth Baptist

ChaveR, 706 31.3%. SE. 6s. c cekeakeewsae 26

Banco Nacional de Cuba v. Sabbatino, 376

US.. SR ice c ccc vwiebankacs Sees seen ees 19

Bivens v. Six Unknown Named Agents, 403

TD. DOD oon diss vucckecetaeeestsenee 20

PREVIOUS PAGE WAS BLANK

Cases—Continued: Page

Boomer v. Atlantic Cement Co., Inc., 26

N.Y.2d 219, 257 N.E. 2d 870, 309 N.Y. 2d

ali gala ea eign’ he Serta ee aa 32

California Tahoe Regional Pianning Agency

v. Jennings, 594 F.2d 181, cert. denied, 444

I or caedesv ace ches pear eae eles 20-21

Carlson v. Green, No. 78-1261 (Apr. 22, 1980) 19

Committee for Jones Falls Sewage System v.

Pee, Ge Pe FOOS oc. cs ccd acces cudeees 21

Connecticut v. Massachusetts, 282 U.S. 660.. 16

Costle v. Pacific Legal Foundation, No. 78-

Dive Corer. 16, BOBO) 2... ccc ce sennds 5, 7, 8-9

Crown Simpson Pulp Co. v. Costle, No. 79-

2 Re Pee ewereererr rr ery 8,9

E. I. duPont deNemours & Co. v. Train, 430

Eo i's'kis's 4 nc aenn nw ane es 6, 9, 24, 25, 27, 28

EPA v. State Water Resources Control Board,

«RE Re Brrr 4, 5, 6, 8, 9, 25, 27

Erie R.R. v. Tompkins, 304 U.S. 64 ........ 16

Far East Conference v. United States, 342

een ecnnecnceat keg essen eee 30

Georgia v. Tennessee Cooper Co., 206 U.S.

et a pace Nie deh nade aw aa Ren 16, 17, 18

Harrisonville v. W.S. Dickey Clay Mfg. Co.,

I I 5k is ‘ble le Si dsaae oer evant Mee ER Dee 32

Hinderlider v. LaPlata River & Cherry Creek

Se Ge. , OO Wide WR ck cv cae ecawees swan 16, 19

Homestake Mining Co. v. EPA, 477 F. Supp.

ESSE URC aa Len Re Seg ae aE ICME At <7 22

Huddleston v. United States, 415 U.S. 814... 25

Illinois v. City of Milwaukee, 406 U.S.

ee oe 1, 2, 3, 5, 14, 16, 17, 19-20, 26

Illinois v. Outboard Marine Corp., 619 F.2d

623, petition for cert. pending, No. 80-

RR Rs ot oe ea erate tee 2, 18-20, 22

Isbrantsen Co. v. Johnson, 348 U.S. 779..... 20

Kaiser Aetna v. United States, 444 U.S.

ee od Cees CU a pekaey bee 18

Cases—Continued: Page

Kansas v. Colorado, 206 U.S. 46.......... 3, 16, 19

Lewis v. United States, No. 78-1595 (Feb. 27,

RSID re ee Pelee ant hae mat ea 25

Mianus River Preservation Comm. v. EPA,

UN ne OE a ee Sr ee tig AN 28-29

Missouri v. Illinois, 180 U.S. 208 ....... 16, 17, 18

Moragne v. States Marine Lines, Inc., 398

eR eer os Deter ear bap een Shee ADORE 17

Nader v. Allegheny Airlines, Inc., 426 U.S.

ME isos 8 Be as bee eee a 20, 22, 26, 28, 30

National Crushed Stone Association v. EPA,

601 F.2d 111, cert. granted, No. 79-770

SE EN ga cbs hind ce cami pean kas 6

National Sea Clammers Ass’n v. City of New

York, 616 F.2d 1222, petition for cert.

pending, Nos. 79-1711, 79-1754, 79-1760

NE SE Hi nook od oe rkadekeeku asain 3, 20, 21

Nebraska v. Wyoming, 325 U.S. 589......... 18

Nevada v. Hall, 440 U.S. 410 ............0.. 18

New Jersey v. City of New York, 283 U.S. 473 26

New Jersey v. New York, 283 U.S.

Ey ope ure bevy) Praeger ney AED 16, 18, 20, 29

New York State Department of Social Services

7. Cee, BAD Ue A kos kn ode nenye 28

North Dakota v. Minnesota, 263 U.S. 365.... 18

Reserve Mining Co. v. EPA, 514 F.2d 492 ... 24, 28

Sanitary District v. United States, 266 U.S.

I or ee LEAS aa a 1, 16

Simpson v. United States, 485 U.S. 6........ 24

Sola Electric Co. v. Jefferson Electric Co.,

Ee Se Pe crn c eco aan he 17

Texas & Pacific Ry. v. Abilene Cotton Oil

Ci ee SE ES Ka oe eee oed an kes dneus 20, 22

Texas ¥. Pankey, 441 F.2d B06 .... 6... cescsss 18

Textile Workers Union v. Lincoln Mills, 353

Ad ek hoes Vole ea badly bake cae 17

Train v. Natural Resources Defense Council,

PR Se Te La Ve here ad hae een ew' 27

Union Electric Co. v. EPA, 427 U.S. 246.... 27

Cases—Continued:

United States v. Atlantic-Richfield Co., 478

ae 8 See ror rere Te

United States v. Hooker Chemicals & Plastic

Corp., No. 79-990 (W.D. N.Y., filed

Ne ee peg et

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

363 F. Supp. 110, aff'd, 487 F.2d 1393, cert.

OO Oe Ut Osh sconce kee ieee <

United States v. Little Lake Misere Land Co.,

ee ee I a's oc la ok bak

Page

18, 21

2, 32

United States v. Nevada, 412 U.S. 584..... 2, 16, 18

United States v. Outboard Marine Corp., 619

F.2d 623, petition for cert. pending,

SS eres ae eT ee ee Cee ee ETT Te

United States v. RCA, 358 U.S. 384 .........

United States v. Republic Steel Corp., 362

2 Eg RR are ae te rr ea ee

United States v. Solvents Recovery Service,

Civil No. H 79-704 (D. Conn., filed Aug. 20,

ANSON Saw sees Bat al igre Ne eg ee or

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

597, cert. denied, 420 U.S. 927 ............

United States Steel Corp. v. Train, 556 F.2d

READ TIIASEE eORy Pag Sea nee Er Sn aa re

United Steelworkers v. United States, 361

SR A cA aA ck See eh ata Pek eRe ys

Vermont v. New York, 417 U.S. 270.........

Washington v. General Motors Corp., 406

eR PN rer er eee Pe eee eee eres oe

Wyandotte Transportation Co. v. United

i Es i Es 2 ok oe ka eS Oe

Constitution, statutes and regulations:

United States Constitution:

Art. T, Boetien 80, eb. 1, Bo on. cnaaess

BIG: Tah, OCIS Ba iis vnc vice éwandens

Act of Dec. 28, 1973, Pub. L. No. 93-207, 87

ee ee oe ee Cane wt

2, 18

VII

Constitution, statutes and regulations—Continued: Page

Act of Nov. 2, 1978, Pub. L. No. 95-576, 92

Beek. BEES . 6.5) 044 sdekt ae 1

Clean Air Act, Section 304(e), 42 U.S.C.(Supp.

SEY PRD: ok nk ck bss tdaeeeeaeweeaawened 1

Clean Water Act (Federal Water Pollution

Control Act Amendments of 1972, Pub. L.

No. 92-500, 86 Stat. 816, as amended by the

Clean Water Act of 1977, Pub. L. No. 95-

DAT, BE ak: Be ons Skee sees Caxweves 1

Section 101, 33 U.S.C. 1251 et seg. ...... 1,5

Section 101(a), 33 U.S.C. 1251(a).. 2, 19, 27-28

Section 101(a)(1), 33 U.S.C. 1251(a)(Q1) ... 5

Section 101(a)(2), 833 U.S.C. 1251(a)(2) ... 28

Section 101(b), 33 U.S.C. (Supp. ID)

WRUNG oak nnn cantiesuseoen 10, 14, 22, 26, 28

Sections 102-115, 33 U.S.C. (& Supp. ID

SEE 30. cs Naka oueuaenseies wanes 6

Section 108, 33 U.S.C. 1253 ............. 1

Section 104(f), 33 U.S.C. 1254(f)......... 1

Section 108, 838 U.S.C. 1258 ............: 1

Sections 201-204, 33 U.S.C. (& Supp. ID)

BR wn ch i iinade vane eeeeeenas 6

Sections 201-217, 33 U.S.C. (& Supp. II)

| Perr er rrr a eos eae 1, 6

Section 201(g)(2)(A), 33 U.S.C. 1281(g) (2)

OID 5 cca cinco eee 7

Section 202(a)(2), 33 U.S.C. (Supp. II)

SD awn sla nab hc nss ne ees 6

Section 205, 33 U.S.C. (& Supp. II)

ES dice Wis nine d ngneascbeeee ean 6

Section 212(2), 33 U.S.C. (& Supp. II)

BIN NO Wis ckaccs ck cpchnsseneeeeneea 29

Section 212(2)(B), 38 U.S.C. 1292(2)(B) .. 29

Section 216, 33 U.S.C. (Supp. II) 1296... 6

Section 217, 33 U.S.C. (Supp. II) 1297... 29

Sections 301-304, 33 U.S.C. (& Supp. ID

SRRROGNS osc bhawawaceceuwsshunnuceas 1

Sections 301-318, 33 U.S.C. (& Supp. ID)

UCI ik vac ns wiwde eaatenee eee 6

VIII

Constitution, statutes and, regulations—Continued: Page

Section 801, 33 U.S.C. (& Supp. IT)

Bae vida au aa eka ws eee au oo mae a 9, 15, 25

Section 301(b), 33 U.S.C. (& Supp. IT)

la hice aalhin a9 (kdb aie hraceae 6

Section 301(b)(1)(A), 338 U.S.C.

ee Seeks ch dan Pees 7

Section 301(b)(1)(B), 38 U.S.C.

LL. rer é,7

Section 801(b)(1)(C), 38 U.S.C.

ge ne ree 7, 15, 26, 28

Section 301(b)(2), 33 U.S.C. (Supp. II)

ee dey sc aks op ackas¥ 4 4 ws 7

Section 301(b)(2)(B), 338 U.S.C. (& Supp.

Eee EE voc nwes vee es aweenss 7

Section 301(h), 38 U.S.C. (Supp. IT)

adie ea peu ia kl 6 AN 7

Section 301 (i), 383 U.S.C. (Supp. II)

Te Ua orb nih wa 7

Section (301)(i)(1), 833 U.S.C. (Supp. ID)

I ne rc ae 29

Section 302, 33 U.S.C. 1812............. 8, 25

Section 302(a), 88 U.S.C. 1812(a)........ 8

Section 302(b), 33 U.S.C. 1312(b)........ 8

Section 308, 33 U.S.C. 1813............. 7

Section 303(a), 38 U.S.C. 1818(a) ........ 8

Section 303(b), 33 U.S.C. 1313(b)........ 8

Section 303(c), 38 U.S.C. 1813(¢) ........ 8, 31

Section 303(c)(3), 33 U.S.C. U.S.C.

ae ee ik As acai Lea abs We 31

Section 303(d), 33 U.S.C. 1813(d)........ 8

Section 303(e), 38 U.S.C. 1818(e) ........ 8

Section 304(d)(i), 838 U.S.C. 1814(d)(1) ... 7

Section 306, 33 U.S.C. 1816............. 25

Section 307, 33 U.S.C. (& Supp. II)

RE NS Phare co eeh Cradee ak cwaas 25

Section 309, 33 U.S.C. (& Supp. II)

eA eh es Uy ie teu here's 25, 80

Section 309(a), 33 U.S.C. (& Supp. II)

SP ee eT ea Pee Pee ree 9

Constitution, statutes and regulations—Continued: Page

Section 309(a)(1), 83 U.S.C. (& Supp. ID

PEE fia Ss iit sve sthacee anaes 655-5 9

Section 309(b), 33 U.S.C. (& Supp. ID)

a St ace ona oN aae Oe wake eats 9

Section 309(c), 38 U.S.C. (& Supp. ID)

NE ened «wields daca eae nakee sien 9

Section 309(d), 38 U.S.C. (& Supp. IT)

Crk iawn ets o Meeteic peices 9

Section 312(f)(1), 38 U.S.C. 1822(f)(1) .. 11, 14, 22

Section 401-405, 33 U.S.C. (& Supp. II)

PRN a oa nAicen + adi Reka ee 6

Section 402, 33 U.S.C. (& Supp. II)

DS eens Seiad sae Hae aes kena +o 8, 9

Section 402(a)-(d), 38 U.S.C. (& Supp. I)

SI or sa ten aa an aieuine ro 4-s 9

Section 402(a)(1), 33 U.S.C. 1342(a)(1) ... 9

Section 402(a)(5), 38 U.S.C. (& Supp. ID)

| ET ne neres ert rae 8

Section 402(b)(3)-(5), 33 U.S.C.

RE ee Senne wre 9

Section 402(b)(3), 33 U.S.C. 1342(b)(3) ... 31

Section 402(b)(5), 833 U.S.C. 1842(b)(5)... 9, 31

Section 402(d)(2), 33 U.S.C. 1342(d)(2)... 31

Section 402(d)(2)(A), 33 U.S.C. (Supp. IT)

SITs WA Ss cowa ea ke vk 0 Ree 9

Section 402(j), 83 U.S.C. 1842(j)......... 9

Section 402(R), 33 U.S.C. 1842(k) ... 24, 25, 26

Section 502(5), 38 U.S.C. 1862(5) ........ 21

Section 502(14), 33 U.S.C. (Supp. II)

SE ES AeA teva ts sca abe ees 6

Sections 504-505, 33 U.S.C. (& Supp. ID)

SRO «Sack Ga usa aha ch adlecaesees) 6

Section 504, 33 U.S.C. (Supp. II) 13864... 26

Section 505, 33 U.S.C. 1865....... 9, 21, 23, 24,

25, 26, 30

Section 505(e), 33 U.S.C. 1365(e)..... 1, 9-10, 12,

14, 21, 22, 23, 24, 25, 26

Sections 509-511, 33 U.S.C. 1869-1371 .. 6

Section 509(b), 338 U.S.C. 1869(b)........ 31

Constitution, statutes and regulations—Continued: Page

Section 509(b)(1)(F), 33 U.S.C.

MAA Binns Siig ava sbeueeseae ene 9

Section 510-511, 33 U.S.C. 1869-13871 ... 12

Section 510, 38 U.S.C. 1870....... 8, 10, 14, 15,

22, 26, 28

Section 511, 33 U.S.C. 1871... 14, 15, 22, 26, 28

Section 511(a), 38 U.S.C. 1871(a) ........ 26

Section 511(b), 38 U.S.C. 1871(b)........ 26

Section 515(c), 33 U.S.C. (Supp. II)

BORED Us ich ccaeesckkeun seu erenene 15, 30

Clean Water Act of 1977, Pub. L. No. 95-217,

91 Stat. 1566 et seq.:

Section 44, 33 U.S.C. (Supp. IT) 1811(h)...

Section 45, 33 U.S.C. (Supp. II) 1311(i)..

Deepwater Port Act of 1974, Section 16(e), 33

if Cet Ree ett ieto rit res 1

Federal Tort Claim Act, 28 U.S.C. 2671

OS Me Mi ceanisesdtvacinkaskadee eee 20

Federal Water Pollution Control Act, 33

U.S.C. (1970 ed.) 1151 et seg.: .......... 3, 4, 13

33 U.S.C. (1970 ed.) 1155 ...........000. 4

(EOFS OG) BOGD o occ cin vsacucs 4

(1970 ed.) 1160(a)............. 4,5

(1970 ed.) 1160(c)............. 4

(1970 ed.) 1160(c)(1) .......... 4

(1970 ed.) 1160(c)(3) .......... a

(1970 ed.) 1160(c)(5) .......... 4,5

(1970 ed.) 1160(d) .......0..... 4

(1970 ed.) 1160(g) ............ 5

. (1970 ed.) 1160(g)(2) .......... 5

Marine Protection, Research and Sanctuaries

Act of 1972, Section 105(g)(5), 33 U.S.C.

nnnnnnnnn

QAQAQAAQAAQAAAQ

& 83 & & & & & &

aqeaacaacaed

SEP scab dd ha uy ba bak svi eeeeeen teks 1

Noise Control Act of 1972, Section 12, 42

Wise. MRED 0 5 au Rake ks tek oee ee 1

Rivers and Harbors Act of 1899, Section 13

(Refuse Act), 33 U.S.C. 407........... 3, 4, 5, 26

Constitution, statutes and regulations—Continued: Page

Rivers and Harbors Act of 1910, 33 U.S.C.

AGM te LASS avai es Mee Kees 26

Safe Drinking Water Act, Section 1449(e), 42

i ED ib davcdivews vests caweas 1

Solid Waste Disposal Act, Section 7002(f), 42

Es inne phn arvn-ck Sands MMe ee 1

Supervisory Harbors Act of 1888, 33 U.S.C.

tee. el aaa wae eked 26

Surface Mining Control and Reclamation Act

of 1977, Section 520(e) 30 U.S.C. (Supp. IT)

ne a ee ee Ne ene le hig Mee 1

Toxic Substances Control Act, Section 20 (¢)(3)

i, Ee ee is ek a vovuse'esWevaven 1

Pub. L. No. 95-217, Section 70, 91 Stat.

ee cee sc yinieh a wag ka paws 30

es pep pbcuecsueebeeks 2

yep hse Nae nedos 2

a rah sue aedowes 3

I se oo cee waawk dss 10

Illinois Environmental Protection Act, III.

Ann. Stat., ch. 111-%, § 1001 et seq.

Es Se ene tray eee renee 10

Ill. Water Pollution Control Board rules and

Regulations ch. 3, 1 Envir. Rep. (BNA)

| re rere Ferre 8

Wisc. Admin. Code ch. NR 102, 2 Envir. Rep.

(BNA) 951:1001 et seg. (1978) ............. 8

33 C.F.R. (1972):

on esa a aia ak eae 5

ne GP PRED) oon cas cc cdscwcecees 5

40 C.F.R.:

ee cee AN eh oc awe eR ES 7

es a nde aaa Coals 7

a ee ae ewe 28

ee eben id ones 27

XII

Constitution, statutes and regulations—Continued:

I 6 oh ibe ae SUR Ads wen Or

EN ar Oa ae ele

ee SE es ec pe er Ole.

EE Say eee fern Pree

ge a Gera nit

Miscellaneous:

A Legislative History of the Water Pollution

Act Amendments of 1972, 93d Cong., 1st

Sess. (Comm. Print 1973):

WS BE lop ieee Fee Why aes ewukies 19, 23,

A Legislative History of the Clean Water Act

of 1977: A Continuation of the Legislative

History of the Federal Water Pollution

Control Act, 95th Cong., 2d Sess. (Comm.

Print 1978):

a 66 oe 8 NT ek RE

MS cn Rees Kee Gus ea aoe Wt eee

Bryson & Macbeth, Public Nuisance, the Re-

statement (Second) of Torts, and Environ-

Page

IIIA C

23, 27

mental Law, 2 Ecol. L.Q. 241 (1972) .... 29, 30, 31

Comment, Federal Common Law in Interstate

Water Pollution Disputes, 19738, U. Ill. L.F.

PRL eeeEe CT eee eee TTT Peer TIE eee eee 29, 30, 31

EPA, Report To Congress On Control Of

Combined Sewer Overflow in the United

I ROE oS chs Us donc ay vd Gace eh eaeas

Friendly, Jn Praise of Erie—And of the New

Federal Common Law, 39 N.Y.U. L. Rev.

AEE Cs Sag ada oh 0% bake oie k as see 16,

Hill, The Law-Making Power of the Federal

Courts: Constitutional Preemption, 67

Colum. L. Rev. 1024 (1967) ...............

H.R. Conf. Rep. No. 95-830, 95th Cong., 1st

SL, MRE Sc Eid nak a neo Peden ea nee bee

H.R. Rep. No. 92-911, 92 Cong., 2d Sess.

Sees ob hos wane uida Ph eoeh cease Cie ees

18-19

XIII

Miscellaneous—Continued:

Monaghan, The Supreme Court, 1974 Term-—

Foreword: Constitutional Common Law, 89

sg a a eo ee

Note, Federal Common Law Remedies for the

Abatement of Water Pollution, 5 Ford.

SO Bas PETER oo. cok 0 poe cee 80 ta52

S. Rep. No. 92-414, 92d Cong., lst Sess.

Page

6 FE ee Perea eT Pere ere ree 14, 23, 26-27

S. Rep. No. 95-370, 95th Cong., lst Sess.

iar eas ce dalvinks wae cetera te d oct

Water Pollution Control Legislation—1971:

Hearings Before the House Comm. on Pub-

lic Works, 92 Cong., 1st Sess. (1971).......

Water Pollution Control Legislation: Hear-

ings Before the Subcomm. on Air and Water

Pollution of the Senate Comm. on Public

Works, 92d Cong., Ist Sess., Pt. 1

NEES (Unite dnnicrCabesh seen seeneseead 23-24, 27

Woods & Reed, The Supreme Court and In-

terstate Environmental Quality: Some

Notes on the Wyandotte Case, 12 Ariz. L.

a Gaia ao Wir wes Wk ad Onc 6p Sia 08's

Zener, The Federal Law of Water Pollution

Control, reprinted in Environmental Law

Institute, Federal Environmental Law (ed.

Dolgin & Guilbert 1974) ...................

36 Fed. Reg. 6564 et seq. (1971).............-.

45 Fed. Reg. (1980):

Ts ely eal a ce a en ae ke a

8 RRR Re reer ee ee eae

re area id ne bey gic see sea oe OA Es

0 4)

INTEREST OF THE UNITED STATES

This case presents important questions concerning the

interaction of the Clean Water Act, 33 U.S.C. 1251 et

seq.,1 and the federal common law of nuisance as applied to

the pollution of interstate and navigable waters. See /I-

linois v. City of Milwaukee, 406 U.S. 91 (1972). The fed-

eral government and its agencies are primarily responsible

for the administration, interpretation, and enforcement of

the Clean Water Act and various other legislation con-

cerning the environment.? Pursuant to the Clean Water

Act, the Environmental Protection Agency sets

technology-based effluent limitations for both private dis-

chargers and publicly-owned waste treatment works, and

it finances a substantial percentage of the cost of con-

structing public sewage treatment facilities. See 33 U.S.C.

(and Supp. II) 1281-1297, 1311-1314. The Administrator

of EPA also has specific responsibilities with regard to in-

terstate water pollution in general and the Great Lakes in

particular. See 33 U.S.C. 1253, 1254(f), 1258.

Consistent with its overriding responsibility for the en-

vironment (Sanitary District v. United States, 266 U.S.

405, 425-426 (1925)), the United States itself has re-

peatedly relied upon the federal common law of nuisance in

addition to various statutory remedies as part of its efforts

1The Clean Water Act refers to the Federal Water Pollution Control

Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, as

amended by the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat.

1566. See also Act of Dec. 28, 1973, Pub. L. No. 93-207, 87 Stat. 906;

Act of Nov. 2, 1978, Pub. L. No. 95-576, 92 Stat. 2467.

2 Many of these statutes contain savings clauses essentially identical

to Section 505(e) of the Clean Water Act, 33 U.S.C. 1365(e), which is at

issue in this case. See, e.g., Section 304(e) of the Clean Air Act, 42

U.S.C. (Supp. II) 7604(e); Section 16(e) of the Deepwater Port Act of

1974, 33 U.S.C. 1515(e); Section 105(g)(5) of the Marine Protection,

Research, and Sanctuaries Act of 1972, 33 U.S.C. 1415(g)(5); Section

12(e) of the Noise Control Act of 1972, 42 U.S.C. 4911(e); Section

7002(f) of the Solid Waste Disposal Act, 42 U.S.C. 6972(f); Section

1449(e) of the Safe Drinking Water Act, 42 U.S.C. (Supp. II) 300j-8(e);

Section 520(e) of the Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. (Supp. II) 1270(e); and Section 20(c)(3) of the Toxic

Substances Control Act, 15 U.S.C. 2619(¢)(3).

]

to prevent and remedy the pollution of this country’s natu-

ral resources. See, e.g., [llinois v. Outboard Marine

Corp., 619 F.2d 6238 (7th Cir. 1980), petition for cert.

pending, No. 80-126; United States v. Hooker Chemicals

& Plastic Corp., No. 79-990 (W.D.N.Y., filed Dec. 20,

1979) (Love Canal litigation). See also United States v.

Nevada, 412 U.S. 534, 538 (1973). Furthermore, given the

limited resources of the Environmental Protection Agency

and the Department of Justice, achieving the national goal

of “restor[ing] and maintain[ing] the chemical, physical,

and biological integrity of the Nation’s waters” (33 U.S.C.

1251(a)) depends in large measure on the continued effec-

tiveness of state and private enforcement actions under

appropriate federal statutes, state law, and the federal

common law. Accordingly, resolution of the issues posed

by this case will have a direct impact on the programmatic

and enforcement interests of the United States.

STATEMENT

A. Introduction and Background.

1. The basic issue in this case is whether petitioners

may be held liable under the federal common law of nui-

sance for discharging raw and inadequately treated sew-

age into the interstate and navigable waters of Lake

Michigan. The litigation began in 1971, when Illinois

sought leave of this Court to file an original complaint

against petitioners and others for polluting Lake Michigan

to the detriment and danger of the residents of Illinois.

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

Court unanimously denied Illinois’ motion. The Court con-

cluded that the action against cities and local sewerage

commissions in Wisconsin did not constitute a suit against

that State within the purview of 28 U.S.C. 1251(a)(1) and

that therefore the Court did not have exclusive, original

jurisdiction over the controversy. See 406 U.S. at 93-98.

And, because another forum was available, the Court de-

clined the exercise of its permissive jurisdiction under 28

U.S.C. 1251(b)(3). 406 U.S. at 98-101, 108. In reaching

that decision, however, the Court expressly held that the

suit would lie in an appropriate district court, as one

“aris[ing] under the ‘laws’ of the United States” within 28

U.S.C. 1331(a). 406 U.S. at 99.3

The “law” invoked, the Court explained, was the federal

common law, existing within the interstices of the numer-

ous federal environmental protection statutes (id. at 101-

104),4 and derived from the well-established “ ‘interstate

common law’ ” regarding disputes over interstate and

navigable waters (id. at 105-106, quoting Kansas v. Col-

orado, 206 U.S. 46, 98 (1907)).5 Focusing on the interac-

tion between the federal common law and the relevant

congressional enactments, the Court observed that al-

though “various federal environmental protection statutes

* * * may provide useful guidelines in fashioning [the fed-

eral common law],” federal courts applying the common

law are not limited by either the remedies or the substan-

tive protections contained in federal legislation. 406 U.S.

at 103 & n.5.§ The Court further commented (7d. at 107):

It may happen that new federal laws and new fed-

eral regulations may in time pre-empt the field of fed-

eral common law of nuisance. But until that comes to

pass, federal courts will be empowered to appraise

the equities of the suits alleging creation of a public

nuisance by water pollution.

3The Court thus expressly rejected the “contrary indication in Ohio

v. Wyandotte Chemicals Corp., 401 U.S. 493, 498 n.3 [(1971)].” 406

U.S. at 102 n.3.

4The Court cited, inter alia, the Rivers and Harbors Act of 1899, 33

U.S.C. 407, and the Federal Water Pollution Control Act, 33 U.S.C.

(1970 ed.) 1151 et seg. See pages 4-5, infra.

5The Court specifically cautioned, however, that “it is not only the

character of the parties that requires us to apply federal law.” 406

U.S. at 105 n.6. See National Sea Clammers Ass’n v. City of New

York, 616 F.2d 1222, 1233-1235 (3d Cir. 1980), petition for cert. pend-

ing, No. 79-1711, 79-1754, 79-1760, and 80-12 (private parties may

invoke federal common law).

6Likewise, the Court suggested that “[wJhile federal law governs,

consideration of state standards may be relevant.” 406 U.S. at 107

(footnote omitted).

2. At the time of the Court’s decision in Jllinois v. City

of Milwaukee, the primary federal statutes concerning the

problem of water pollution were the Federal Water Pollu-

tion Control Act (“FWPCA”), 33 U.S.C. (1970 ed.) 1151 et

seq., and Section 13 of the Rivers and Harbors Act of 1899

(“the Refuse Act’), 383 U.S.C. 407. See EPA v. State

Water Resources Control Board, 426 U.S. 200, 202-203

(1976). Under the FWPCA, ambient water quality stand-

ards, establishing permissible levels of pollution in par-

ticular bodies of water, constituted the principal pollution

control mechanism. See 33 U.S.C. (1970 ed.) 1160(c).7 The

states were primarily responsible for developing these

water quality standards and also an implementation plan

meeting certain statutory criteria. See 33 U.S.C. (1970

ed.) 1160(c)(1), (c)(8). Where, however, the state either

failed to establish a water quality standard or the standard

was inadequate, the Administrator of the Environmental

Protection Agency was required to promulgate appropri-

ate water quality standards after consulting with various

state authorities. See 33 U.S.C. (1970 ed.) 1160(c); EPA

v. Water Resources Control Board, supra, 426 U.S. at 202

& n.4.

The original FWPCA also assigned the states the initial

responsibility for enforcing water quality standards and

abating water pollution. The states were free to establish

enforcement procedures regarding intrastate pollution.

See EPA v. State Water Resources Control Board, supra,

426 U.S. at 203. Moreover, the appropriate state authority

(or, in some cases, the Administrator of the EPA) could

initiate an enforcement conference among state, federal,

and other interested parties, whenever a discharge into

interstate waters either reduced the quality of such wa-

ters below the establisned standard or endangered the

health or welfare of any person. See 33 U.S.C. (1970 ed.)

1160(a), (c)(5), and (d). If the conferees could not settle the

7The FWPCA also directed the Administrator of EPA to conduct

various research and development projects, including a study of the

Great Lakes, and to help finance the construction of publicly owned

sewage treatment works. See 33 U.S.C. (1970 ed.) 1155, 1158.

dispute and if the pollution discharges continued to “en-

danger[] the health or welfare of any person” six months

after the discharger received notice of the violation, the

United States was then authorized to bring suit to abate

the pollution. See 33 U.S.C. (1970 ed.) 1160(a), (c)(5), (g);

Illinois v. City of Milwaukee, supra, 406 U.S. at 103.8

In order to supplement the inconsistent efforts of the

states under the FWPCA, federal officials also established

the Refuse Act Permit Program (“RAPP”) pursuant to

the Refuse Act, 33 U.S.C. 407, which prohibits the dis-

charge of any matter into navigable waters without a fed-

eral permit. See EPA v. State Water Resources Control

Board, supra, 426 U.S. at 203; Illinois v. City of Mil-

waukee, supra, 406 U.S. at 102; 36 Fed. Reg. 6564 et seq.

(1971). Under these regulations, every industrial dis-

charger had to obtain a federal permit. RAPP permits, in

turn, required the dischargers to comply with applicable

water quality and hazardous waste standards. See 33

C.F.R. 209.181 (1972). RAPP did not, however, govern

the discharges of public sewage treatment systems. 33

C.F.R. 209.131(d)(2)(ii) (1972).

3. In 1972, subsequent to the decision in Jliinois v. City

of Milwaukee, Congress substantially rewrote the

FWPCA. See Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, 33

U.S.C. 1251 et seq.; EPA v. State Water Resources Con-

trol Board, supra, 426 U.S. at 203-209. These 1972

amendments, now referred to as the Clean Water Act (see

note 1, supra), declare that “it is the national goal that the

discharge of pollutants into the navigable waters be elimi-

nated by 1985.” 33 U.S.C. 1251(a)(1). Costle v. Pacific

Legal Foundation, No. 78-1472 (Mar. 18, 1980), slip op.

2-3. To achieve this goal, Congress expanded the EPA re-

8If the discharge was endangering the health or welfare of persons

only in the state where the discharge originated, then the federal suit

was conditioned upon the written request of that state’s governor. 33

U.S.C. (1970 ed.) 1160(g)(2).

search, demonstration, and funding programs contained in

the original FWPCA® and established a new system of

technology-based standards and permits, primarily aimed

at achieving effluent limitations on all point sources, as

well as achieving acceptable water quality standards.

EPA v. State Water Resources Control Board, supra, 426

U.S. at 204.1°

Thus, Section 301(b) of the Act, 33 U.S.C. (and Supp.

II) 1811(b), directs the Administrator of EPA to set in-

creasingly stringent effluent limitations for various

categories of “point sources,” including municipal dischar-

gers.!1 See generally E. J. duPont deNemours & Co. v.

Train, 480 U.S. 112 (1977); National Crushed Stone As-

sociation v. EPA, 601 F.2d 111 (4th Cir. 1979), cert.

granted, No. 79-770 (Feb. 19, 1980). With regard to pub-

licly owned treatment works, the Act requires application

of ‘secondary treatment as defined by the Adminis-

trator’’!? no later than July 1, 1977 (338 U.S.C.

®Title I of the Clean Water Act provides for various research and

development programs. See 33 U.S.C. (and Supp. II) 1252-1265. Title

II of the Act authorizes a massive construction grants program for

municipal treatment facilities. 33 U.S.C. (and Supp. II) 1281-1297.

Pursuant to a statutory formula involving relative population and sew-

age treatment needs, each state is allocated a certain share of federal

funds. 33 U.S.C. (and Supp. II) 1285. Depending upon the priorities

set by the state, EPA will fund 75% of the cost of each qualifying

waste treatment project necessary to meet the requirements of the Act

up to the total of the state’s allocation. 33 U.S.C. (and Supp. II) 1281-

1284, 1296. Certain innovative treatment works are eligible for 85%

federal funding. 33 U.S.C. (Supp. II) 1282(a)(2). Projects to correct

overflows from both separate sanitary sewer systems and combined

storm and sanitary sewer systems are eligible for federal funding.

10See 33 U.S.C. (and Supp. II) 1311-1328, 1341-1345, 1364-1365,

1369-1371.

11A point source is a discrete outlet from which pollutants may be

discharged, including pipes, sewers, and treatment plants. See 33

U.S.C. (Supp. IT) 1362(14).

12Primary treatment involves screening and sedimentation to re-

move suspended organic and inorganic solids. Secondary treatment in-

volves use of biological processes, primarily decomposition, with or

without chemical disinfectants, to remove organic wastes.

1311(b)(1)(B), 1314(d)(1))!% and “best practicable waste

treatment technology over the life of the works” by July 1,

1983 (33 U.S.C. (and Supp. II) 13811(b)(2)(B),

1281(g)(2)(A)). Pursuant to Section 301(b)(1)(B), 33 U.S.C.

1311(b)(1)(B), the Administrator has issued regulations

defining secondary treatment in terms of allowable limits

of certain conventional pollutants.!4 No regulations exist,

however, regarding the allowable discharge of viral and

bacterial pathogens, fecal coliforms, or phosphorous and

chlorine residuals. Moreover, because sewers and pipes

that do not lead to a treatment facility are not considered

publicly owned treatment works for purposes of Section

301 (see 40 C.F.R. 122.3(bb); 45 Fed. Reg. 33423 (1980) (to

be codified at 40 C.F.R. 122.3)), overflows from combined

storm and sanitary sewers are not subject to the sec-

ondary treatment and best practicable waste treatment

requirements. 15

The effluent limitations constitute the minimum level of

pollution control under the Act. See 33 U.S.C.

1311(b)(1)(C); 45 Fed. Reg. 33512 (1980) (to be codified at

40 C.F.R. 125.3). Section 308, 33 U.S.C. 1318, of the Act

preserved any existing water quality standards issued

under the original FWPCA and directs each state to

promulgate water quality standards governing all intra-

13Qn December 27, 1977, Congress amended the Act to permit the

Administrator to grant extensions of this deadline through, but no

later than, July 1, 1983, where compliance has been delayed by con-

struction problems or lack of federal financial assistance. Clean Water

Act of 1977, Pub. L. No. 95-217, Section 45, 91 Stat. 1584, 33 U.S.C.

(Supp. II) 1311(i); Costle v. Pacific Legal Foundation, supra, slip op.

4 n.4. The amendments also permit limited modification of the sec-

ondary treatment requirements for publicly owned treatment plants

that discharge into marine waters. Section 44, 91 Stat. 1584, 33 U.S.C.

(Supp. IT) 1311(h).

14These regulations focus on five-day biochemical oxygen demand,

suspended solids, and pH. 40 C.F.R. 133.102.

15Such overflows must be covered by a permit and must comply with

Sections 301(b)(1)(A* and 301(b)(2). No specific effluent limitation reg-

ulation has been issued with regard to combined sewer overflows,

which must therefore be considered on a case-by-case basis. 40 C.F.R.

125.3(c)(2). See also 40 C.F.R. 133.103(a).

state waters and to review its water quality standards at

least every three years. 33 U.S.C. 1313(a), (c), (d), (e).1®

The states may also impose more stringent effluent lim-

itations or other forms of pollution control as a matter of

state law. 33 U.S.C. 1870. Finally, under Section 302 of

the Act, the Administrator may require more stringent

effluent limitations for particular point sources in order to

protect public water supplies, agricultural and industrial

uses, shellfish, fish and wildlife, and recreational uses, but

only if such additional limitations are cost justified. 33

U.S.C. 1312(a), (b).17

Section 402 of the Act, 33 U.S.C. (and Supp. II) 1342,

establishes the National Pollutant Discharge Elimination

System (“NPDES”), which is designed “to transform gen-

erally applicable effluent limitations and other

standards—including those based on water quality—into

the obligations (including a timetable for compliance) of

the individual discharger.” EPA v. State Water Resources

Control Board, supra, 426 U.S. at 205.18 It is unlawful for

any person to discharge pollutants into the Nation’s wa-

ters without an NPDES permit, and such permits incorpo-

rate effluent limitations, water quality standards, and

other applicable requirements. See ibid.; Crown Simpson

Pulp Co. v. Costle, No. 79-797 (Mar. 17, 1980), slip op. 1;

Costle v. Pacific Legal Foundation, supra, slip op. 3; 33

16 All proposed water quality standards are subject to EPA review,

and EPA may issue applicable water quality regulations whenever a

state either fails to promulgate such standards or its proposed stand-

ards do not satisfy statutory requirements. 33 U.S.C. 1313(a), (b), and

(ec).

Illinois water quality standards governing its portion of Lake Michi-

gan are more stringent than the comparable Wisconsin water quality

standards (see Pet. App. A-38 to A-39). Compare II]. Water Pollution

Control Board Rules and Regulations ch. 3, 1 Envir. Rep. (BNA)

-766:0501 et seq. (1979) with Wisc. Admin. Code ch. NR 102, 2 Envir.

Rep. (BNA) 951:1001 et seg. (1978).

17The Administrator has never modified an effluent limitation pur-

suant to Section 302, 33 U.S C. 1312.

1®The NPDES program replaced the RAPP system. 33 U.S.C.

(Supp. IT) 1342(a)(5).

U.S.C. (and Supp. II) 1811, 1842. NPDES permits are is-

sued by the EPA or, in those covered jurisdictions in

which EPA has authorized a state agency to administer

the NPDES program,!® by the state agency subject to

EPA review. See 33 U.S.C. (and Supp. II) 1342(a)-(d);

Crown Simpson Pulp Co. v. Costle, supra, slip op. 1-2, 4;

E.1I. duPont deNemours & Co. v. Train, supra, 480 U.S.

at 119-120 & n.7; EPA v. State Water Resources Control

Board, supra, 426 U.S. at 206-208.2° In accordance with

the Act and EPA’s regulations, all interested parties, in-

cluding a state whose waters may be affected by the dis-

charges in question, are entitled to notice and an opportu-

nity for a hearing regarding the issuance of a permit. See

Costle v. Pacific Legal Foundation, supra; 33 U.S.C.

1342(a)(1), (b)(3)-(b)(5), (j); 40 C.F.R. Parts 124-125; 45

Fed. Reg. 33484 et seq. (1980).?!

The Clean Water Act also strengthens the enforcement

provisions of the original FWPCA. Section 309(c) imposes

criminal penalties for willful or negligent violations of the

Act (83 U.S.C. (and Supp. II) 1319(¢)), and authorizes the

Administrator to bring civil enforcement actions “for ap-

propriate relief, including a permanent or temporary in-

junction” and for limited civil penalties. 33 U.S.C. (and

Supp. II) 1819(a), (b), (d). So-called “permitting states”

and adversely affected private persons may also bring en-

forcement actions, subject to specific statutory conditions.

33 U.S.C. (and Supp. II) 1319(a)(1), 1365. Section 505(e)

198Thirty-two states and covered territories, including Wisconsin,

operate their own NPDES program.

20EPA decisions issuing or denying permits (or failing to approve

state-issued permits) are subject to limited judicial review in the

courts of appeals. 33 U.S.C. 1369(b)(1)(F); see Crown Simpson Pulp

Co. v. Costle, supra.

21 Section 402(b)(5) provides that an affected state may submit writ-

ten recommendations to the Administrator and the permitting state

and that, if the permitting state does not accept such recommenda-

tions, it must notify the affected state and the Administrator of its

reasons for rejecting the recommendations. 33 U.S.C. 1342(b)(5).

Thereafter, the Administrator may refuse to approve the permit. 33

U.S.C. (Supp. II) 1842(d)(2)(A).

provides, however, that the statutory right of action does

not “restrict any right which any person (or class of per-

sons) may have under any statute or common law to seek

enforcement of any effluent standard or limitation or to

seek any other relief * * *.” 33 U.S.C. 1365(e).

B. The Proceedings Below.

1. On May 19, 1972, in accordance with this Court’s in-

vitation in Illinois v. City of Milwaukee, supra, the State

of Illinois filed suit in the United States District Court for

the Northern District of Illinois, claiming that petitioners’

discharge of massive amounts of untreated and under-

treated sewage into Lake Michigan constituted a federal

common law nuisance.2? It was alleged that petitioners’

discharges polluted the Illinois portion of Lake Michigan

and thereby threatened the health and welfare of Illinois

residents and accelerated eutrophication of the lake. Sub-

sequently, the State of Michigan intervened in this suit as

a plaintiff solely with regard to the issue of eutrophication

(Pet. App. A-2 to A-8).

Prior to trial, petitioners moved to dismiss the com-

plaint on jurisdictional and venue grounds. The district

court denied this motion, concluding that service of re-

spondents was proper under the Illinois “long-arm”’ stat-

ute and that venue lay in the Northern District of Illinois

under 28 U.S.C. 1891(b). See Pet. App. H. Thereafter,

based on the 1972 amendments to the FWPCA (see

pages 5-9, supra), petitioners again moved to dismiss the

complaint, arguing that the new Clean Water Act preemp-

ted the federal common law. The district court denied this

motion as well (Pet. App. G). The court pointed out (Pet.

App. G-5) that Sections 101(b) and 510 of the Act evidence

Congress’ intent to preserve the “rights of States to pre-

vent, reduce, and eliminate pollution.” 33 U.S.C. (Supp.

II) 1251(b); see 33 U.S.C. 1370. The court further ob-

22 Respondent also claimed that respondents’ pollution violated the

Illinois Environmental Protection Act, Ill. Ann. Stat. ch. 111-%,

§ 1001 et seg. (Smith-Hurd 1977), and state common law.

served that where Congress had intended to preempt

other law it had done so explicitly (citing 33 U.S.C.

121096) and that “[nJowhere do the 1972 amendments

express any intention of eliminating the rights of the

states to seek common law nuisance protection” (Pet. App.

G-5).

Following a four-month trial, the district court made ex-

tensive oral findings about the discharge of raw sewage

into Lake Michigan from both petitioners’ combined storm

and sanitary sewer system and its separate sanitary sewer

system, and the discharge of inadequately treated sewage

from petitioners’ two sewage treatment plants (Pet. App.

F).23 Applying a clear and convincing burden of proof (id.

at, F-2 to F-3, F-14), the court found that petitioners’

sewer systems discharge disease-causing bacteria and vir-

uses into Lake Michigan and that as a result of the cur-

rents in Lake Michigan, these pathogens reach Illinois wa-

ters in substantial numbers as often as 12 times per year

or more (id..at F-6 to F-11). The court further concluded

that these pathogens can infect bathers at Illinois beaches

and contaminate the drinking water that is extracted from

Lake Michigan (id. at F-10 to F-12), and thus “con-

stitute[] a health hazard of serious magnitude to the resi-

dents of the State of Illinois” (id. at F-15). In addition,

the court found that the phosphorous and other nutrients

contained in the sewage are accelerating the eutrophica-

tion of Lake Michigan (id. at F-15 to F-23).

Based on these findings, the court held that petitioners’

discharge of raw and improperly treated sewage into Lake

Michigan is a nuisance as a matter of federal common

law.?4 Accordingly, the district court granted respondents’

23 As to the latter, the district court specifically found that petition-

ers were not complying with EPA regulations and that, in any event,

compliance with EPA secondary treatment standards “would still re-

sult in the discharge of staggering numbers of pathogens to Lake

Michigan” (Pet. App. F-6).

24The district court also held petitioners liable under Illinois statut-

ory and common law (Pet. App. F-2). The court of appeals did not

address these alternative bases for relief (Pet. App. A-46). These

claims are a subject of respondent Illinois’ cross-petition. See People of

request for injunctive relief. In particular, the court or-

dered petitioners, pursuant to an agreed timetable, to

cease discharging raw sewage into the lake. The order re-

quires petitioners to construct substantial sewage treat-

ment and storage facilities in addition to the facilities that

petitioners must in any event build to comply with existing

Clean Water Act regulations. Furthermore, the district

court’s order mandated that petitioners’ sewage treatment

plants meet certain effluent limitations more stringent

than the applicable Clean Water Act standards. See Pet.

App. D, F-24 to F-29.

2. On appeal, the court of appeals affirmed in part and

reversed in part. The court first rejected petitioners’

jurisdictional and venue claims (Pet. App. A-4 to A-6).

After carefully examining the evolution of the Clean

Water Act (Pet. App. A-6 to A-17), the court also re-

jected petitioners’ claims that the Clean Water Act had

preempted the federal common law of nuisance and that,

in any event, compliance with Clean Water Act standards

constitutes an absolute defense to respondents’ common

law claims (id. at A-17 to A-20). The court explained that

Sections 510 and 511 of the Act, 33 U.S.C. 13870-1371, evi-

dence congressional intent to permit “establishment of

more stringent limitations” than those imposed by the Act

itself, and that Section 505(e), 33 U.S.C. 1865(e),

explicitly preserves all common law rights of action (Pet.

App. A-17 to A-18).

The court observed, however, that the policies and even

the standards of the Clean Water Act should guide a court

in applying the federal common law of nuisance (id. at

A-20 to A-23). In accordance with this principle and based

on an exhaustive examination of the trial record, the court

of appeals agreed with the district court that petitioners’

raw sewage discharges both constitute a hazard to the

public health and substantially contribute to eutrophica-

tion, and are thus subject to abatement (id. at A-26 to

the State of Illinois v. City of Milwaukee, cross-petition for cert.

pending, No. 79-571.

A-39, B-2 to B-27). But the court of appeals reversed in-

sofar as the district court had imposed effluent standards

on petitioners’ treatment plants more stringent than those

required under the Clean Water Act (id. at A-40 to A-48,

B-27 to B-32). See People of the State of Illinois v. City

of Milwaukee, cross-petition for cert. pending, No. 79-

571.25

SUMMARY OF ARGUMENT

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

this Court unanimously concluded that pollution of in-

terstate or navigable waters gives rise to an action under

the federal common law of nuisance, which survives and

complements the Federal Water Pollution Control Act

(““FWPCA”), 33 U.S.C. (1970 ed.) 1151 et seg., and the

other existing federal legislation concerning pollution con-

trol. The Court noted, however, “that new federal laws

and new federal regulations may in time pre-empt the field

of federal common law of nuisance.” 406 U.S. at 107. The

question primarily posed by this case is whether the sub-

sequent amendments to the FWPCA, now commonly re-

ferred to as the Clean Water Act, have precluded or lim-

ited federal common law actions to abate water pollution.

We submit that the court of appeals correctly concluded

that nothing in the language, legislative history, or struc-

ture of the Clean Water Act suggests that Congress in-

tended to preempt the long-standing federal common law

regarding interstate water disputes.

Indeed, the language of the Act unambiguously demon-

strates that Congress intended to preserve, not preempt,

the federal common law. First, where Congress sought to

preempt other laws, it did so expressly. See 33 U.S.C.

25The United States takes no position as to whether the district

court’s order, as modified by the court of appeals, constitutes a proper

remedy under the federal common law of nuisance. EPA and petition-

ers are currently disputing whether and to what extent federal funds

will be available to defray the cost of the sewage treatment works or-

dered by the courts below. See note 9, supra.

1322(f)(1). No such provision governs this case. More im-

portant, Section 505(e) provides that a state’s rights under

the Act do not “restrict any right which [the state] may

have under any statute or common law to seek enforce-

ment of any effluent standard or limitation or to seek any

other relief * * *.” 33 U.S.C. 1365(e) (emphasis supplied).

Similarly, Sections 101(b), 510, and 511 of the Act make

clear that, pursuant to any other law, both state and fed-

eral authorities may impose and enforce more stringent

levels of pollution control than those required by the Clean

Water Act. See 33 U.S.C. (and Supp. II) 1251(b), 1370,

1371. Accordingly, the courts have uniformly concluded

that the Clean Water Act does not preempt the federal

common law of nuisance regarding interstate pollution.

The legislative history of the Act also shows that pas-

sage of the Clean Water Act did not affect “the right of

persons (or class of persons) to seek enforcement or other

relief under any statute or common law * * *.” H.R. Rep.

No. 92-911, 92d Cong., 2d Sess. 184 (1972). For example,

the Senate Report accompanying the Act states (S. Rep.

No. 92-414, 92d Cong., 1st Sess. 81 (1971)):

It should be noted, however, that [Section 505(e)]

would specifically preserve any rights or remedies

under any other law. * * * Compliance with require-

ments under this Act would not be a defense to a

common law action for pollution damages.

The legislative debates and hearings also reflect Congress’

considered view that the Clean Water Act would not affect

or hinder any suit arising under the federal common law of

nuisance.

Seeking to circumvent the plain meaning and legislative

history of the Act, petitioners argue that preservation of

the common law will frustrate the congressional design.

But Congress itself contemplated that the federal common

law would supplement the rights and remedies created by

the Clean Water Act. Moreover, the Environmental Pro-

tection Agency, which is primarily responsible for ad-

ministering and enforcing the Act, has long viewed the

federal common law as an essential complement to the

Act. EPA’s judgment that suits under the federal common

law of nuisance will advance rather than impede the

policies and goals of the Act is entitled to substantial de-

ference.

In any event, petitioners’ claims regarding the conflict

between the common law and the Act are unfounded.

Petitioners suggest that the imposition of more stringent

pollution control requirements under the common law will

disrupt the uniform level of effluent limitations set pur-

suant to Section 301 of the Act, 33 U.S.C. (and Supp. I)

1311. But the Act makes clear that the effluent limitations

set by EPA are only a uniform national minimum level of

pollution control, and that there is no statutory bar to still

higher standards of pollution control. See 33 U.S.C.

1311(b)(1)(C), 1870, 1871. Furthermore, the equitable

principles that inform the federal common law of nuisance,

should ensure that the relief granted by the federal courts

will neither be untimely nor disproportionate to the harm

caused by a defendant’s discharges.

Finally, petitioners erroneously contend that there is no

longer a need for the federal common law of nuisance. To

the contrary, this case highlights the critical functions that

the common law continues to serve. Congress has recog-

nized that the Act and EPA’s regulations fail to address

adequately the problems of combined sewer overflows—

precisely the source of raw sewage at issue here. See 33

U.S.C. (Supp. II) 1375(c) (requiring EPA to submit a re-

port on “the status of combined sewer overflows in

municipal treatment works operations”). Likewise, EPA’s

regulations regarding secondary sewage treatment do not

govern the discharge of the pollutants, such as pathogens,

fecal coliforms, and phosphorous, that give rise to re-

spondents’ suit. And although one state may set strict

standards with regard to the permissible level of pollution

in its waters, it has no authority under the Act either to

compel another state that shares the same waters to adopt

or impose equally high standards or to remedy the conse-

quences of past pollution not regulated by the Act. Ac-

cordingly, in the absence of a federal common law remedy,

a state may well be powerless to protect the health and

safety of its citizens and to preserve the quality of its wa-

ters.

ARGUMENT

THE CLEAN WATER ACT NEITHER

PREEMPTS NOR MARKS THE OUTER BOUNDS

OF THE FEDERAL COMMON LAW OF

NUISANCE REGARDING INTERSTATE WATER

POLLUTION

A. Introduction: The Federal Common Law Of

Nuisance

1. Although “there is no federal general common law”

(Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)),?® this

Court has long recognized that there is an “interstate

common law” regarding disputes over the use, ownership,

and pollution of interstate and navigable waters. Kansas

v. Colorado, 206 U.S. 46, 98 (1907). See, e.g., Missouri v.

Illinois, 180 U.S. 208, 241-245 (1901); Kansas v. Col-

orado, 185 U.S. 125, 146-147 (1902); Georgia v. Tennessee

Copper Cvu., 206 U.S. 230 (1907); Sanitary District v.

United States, 266 U.S. 405, 425-426 (1925); Connecticut

v. Massachusetts, 282 U.S. 660, 669-671 (1931); New

Jersey v. New York, 283 U.S. 336, 342-343 (1931); United

States v. Nevada, 412 U.S. 534, 5388-539 (1973); Vermont

v. New York, 417 U.S. 270, 275 n.5 (1974). Indeed, in

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

304 U.S. 92, 110 (1938), which was decided the same day

as Erie R.R. and which was also written by Mr. Justice

Brandeis, the Court expressly confirmed that the appor-

tionment of interstate waters ordinarily involves “a ques-

tion of ‘federal common law.’ ” And, of course, in /llinois

v. City of Milwaukee, 406 U.S. 91, 99 (1972)—a case

arising out of the same controversy now before the

Court—, the Court unanimously concluded that “pollution

26See generally Friendly, /» Praise of Erie—And of the New Fed-

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

of interstate or navigable waters creates actions arising

under the ‘laws’ of the United States within the meaning

of [28 U.S.C.] 1331(a).”

The decision in /llinois v. City of Milwaukee was

premised on three interrelated considerations. First, the

Court surveyed the substantial federal legislation con-

cerning this Nation’s waters and concluded that “it is fed-

eral, not state, law that in the end controls the pollution of

interstate or navigable waters.” 406 U.S. at 102. Because

of the overriding federal interest reflected in various con-

gressional enactments, the Court concluded that it was

appropriate for the federal courts to fashion federal law

using the federal environmental protection statutes as

guidelines (id. at 103 & n.5) and to provide federal rem-

edies even though “not within the precise scope of rem-

edies prescribed by Congress” (id. at 103). In short, the

field of water pollution “is so dominated by the sweep of

federal statutes that legal relations which they affect must

be deemed governed by federal law having its source in

those statutes, rather than by local law.” Sola Electric

Co. v. Jefferson Electric Co., 317 U.S. 178, 176 (1942).

See also United States v. Little Lake Misere Land Co.,

412 U.S. 580, 593 (1973); Moragne v. States Marine

Lines, Inc., 398 U.S. 375, 393-403 (1970); Wyandotte

Transportation Co. v. United States, 389 U.S. 191, 201-

203 (1967); United States v. Republic Steel Corp., 362

U.S. 482, 491-492 (1960); Textile Workers Union v. Lin-

coln Mills, 353 U.S. 448, 456-457 (1957).

Moreover, the Court recognized (406 U.S. at 104-105)

that the federal common law of nuisance has constitutional

underpinnings arising out of the federal system. Each

state retains a quasi-sovereign interest over its natural re-

sources such as air and water and may act to protect such

resources even from pollution emanating from another

state. See, e.g., Georgia v. Tennessee Copper Co., supra,

206 U.S. at 237-238; Kansas v. Colorado, supra, 185 U.S.

at 142; Missouri v. Illinois, supra, 180 U.S. at 241. In

entering the Union, however, the states surrendered their

independent “[d]iplomatic powers and the right to make

war” as means of settling interstate disputes. bid. See,

e.g., Georgia v. Tennessee Copper Co., supra, 206 U.S. at

237; Missouri v. Illinois, 200 U.S. 496, 520-521 (1906);

U.S. Const. Art. I, Section 10, cls. 1, 3. Nor can the vic-

tim state generally enforce its own law beyond its borders.

Cf. Nevada v. Hall, 440 U.S. 410 (1979). Yet, its

sovereign rights ought not be circumscribed by the law of

its neighbor state, which may be inadequate. Accordingly,

federal law must perforce serve as a basis for resolving

interstate pollution disputes. See, e.g., U.S. Const. Art.

III, Sections 1, 2; Nebraska v. Wyoming, 325 U.S. 589,

608 (1945); New Jersey v. New York, supra, 283 U.S. at

342-343; North Dakota v. Minnesota, 263 U.S. 365, 372-

374 (1923); Georgia v. Tennessee Copper Co., supra;

Texas v. Pankey, 441 F.2d 236, 240-242 (10th Cir. 1971);

Hill, The Law-Making Power of the Federal Courts: Con-

stitutional Preemption, 67 Colum. L. Rev. 1024, 1030-

1032 (1967); Monaghan, The Supreme Court, 1974

Term —Foreword: Constitutional Common Law, 89

Harv. L. Rev. 1, 18-14 & n.72 (1975).27

The decision in /[llinois v. City of Milwaukee makes

clear, however, that “it is not only the character of the

parties that requires us to apply federal law [but also]

* * * an overriding federal interest * * * in the pollution of

a body of water such as Lake Michigan bounded, as it is,

by four States.” 406 U.S. at 105 n.6. As Judge Friendly

has explained, “the Constitution can well be deemed to re-

quire that the federal courts should fashion law when the

interstate nature of a controversy makes it inappropriate

that the law of either state should govern.” Friendly, Jn

27Similarly, a suit by the federal government to abate pollution of

interstate or navigable waters of the United States necessarily in-

volves application of federal law. See, e.g., United States v. Nevada,

412 U.S. 534, 5388-539 (1973); Sanitary District v. United States, 266

U.S. 405, 425-426 (1925); Illinois v. Outboard Marine Corp., 619 F.2d

623 (7th Cir. 1980), petition for cert. pending, No. 80-126; United

States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974), cert.

denied, 420 U.S. 927 (1975); United States v. Atlantic-Richfield Co.,

478 F. Supp. 1215, 1218-1220 (D. Mont. 1979). See also Kaiser Aetna

v. United States, 444 U.S. 164, 173 (1979).

Praise of Erie—And of the New Federal Common Law,

39 N.Y.U. L. Rev. 383, 408 n.119 (1964). In other words,

regardless of the identity of the litigants, resolution of a

dispute over interstate or navigable waters requires appli-

cation of uniform federal law rather than inconsistent state

law. See, e.g., Vermont v. New York, supra, 417 U.S. at

275 n.5; Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398, 426-427 (1964); Hinderlider v. La Plata River &

Cherry Creek Ditch Co., supra, 304 U.S. at 110-111; Hill,

Constitutional Preemption, supra, 67 Colum. L.Rev. at

1074-1076; Woods and Reed, The Supreme Court and In-

terstate Environmental Quality: Some Notes on the

Wyandotte Case, 12 Ariz. L.Rev. 691, 711-714 (1970).

. 2. Petitioners do not contest the essential conclusion of

the Court in Jllinois v. City of Milwaukee that federal

common law governs public nuisance actions regarding the

pollution of interstate or navigable waters. Without ques-

tion, petitioners’ continuing discharges of raw sewage into

Lake Michigan trench upon the quasi-sovereign interests

of several states and threaten the quality of an interstate

body of water. Moreover, insofar as the federal common

law is affected by congressional legislation,?® the evolution

of the FPWCA and Clean Water Act described above

(pages 4-10, supra) clearly reflects increased federal con-

cern and involvement in “the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

1251(a). See also, e.g., 1 A Legislative History of the

Water Pollution Control Act Amendments of 1972, 93d

Cong., lst Sess. 178, 248, 250-251, 332, 343-348, 355-356,

359, 451-453, 516-517, 664, 716, 737, 1422-1428 (Comm.

Print 1973).

Rather, petitioners contend that the Clean Water Act

preempts federal common law nuisance actions. To.be

sure, Congress may abrogate or supplant well-settled

common law rights and duties. See, e.g., Carlson v.

Green, No. 78-1261 (Apr. 22, 1980), slip op. 4; Illinois v.

28The federal courts applied the “interstate common law” of public

nuisance leng before Congress enacted the original FWPCA in 1948.

See, e.g., Kansas v. Colorado, supra, 206 U.S. at 98; Georgia v. Ten-

nessee Copper Co., supra.

City of Milwaukee, supra 406 U.S. at 107; Arizona v.

California, 373 U.S. 546, 564-566 (1963); New Jersey v.

New York, supra, 283 U.S. at 348. But petitioners do not

suggest that the Clean Water Act expressly precludes

common law relief. In the absence of such an explicit con-

gressional declaration, this Court has repeatedly con-

cluded that “a common-law right * * * is not to be abro-

gated ‘unless it be found that the preexisting right is so

repugnant to the statute that the survival of such right

would in effect deprive the subsequent statute of its effi-

cacy; in other words, render its provisions nugatory.”

“Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 298

(1976), quoting Texas & Pacific Ry. v. Abilene Cotton Oil

Co. , 204 U.S. 426, 437 (1907). See, e.g., Isbrandtsen Co.

v. Johnson, 348 U.S. 779, 783 (1952). See also Carlson v.

Green, supra, slip op. 4.2%

Here, the presumption against abrogation of common

law rights has special force because, as in Nader v. Al-

legheny Airlines, Inc., supra, 426 U.S. at 299, there is no

“irreconcilable conflict between the statutory scheme and

the persistence of common law remedies.” To the con-

trary, common law nuisance actions are expressly pre-

served by the Act (Point B, infra) and serve to supple-

ment the statutory scheme, particularly in the area of

municipal discharges into interstate waters (Point C,

infra). Thus, the court of appeals correctly concluded that

the Clean Water Act does not preempt the federal common

law of nuisance regarding the pollution of interstate wa-

ters (Pet. App. A-17 to A-23). Accord, Jllinois v. Out-

board Marine Corp., 619 F.2d 623, 626 n.13 (7th Cir.

1980), petition for cert. pending, No. 80-126; National

Sea Clammers Association v. City of New York, 616 F.2d

1222, 1233 n.31 (3d Cir. 1980), petitions for cert pending,

Nos. 79-1711, 79-1754, 79-1760, and 80-12; California

29Carlson involved the question whether the Federal Tort Claims

Act, 28 U.S.C. 2671 et seg., preempts constitutional common law ac-

tions. See Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971). Similarly, respondents’ federal common law actions have a con- ~

stitutional basis. See pages 17-19, supra.

( 21

Tahoe Regional Planning Agency v. Jennings, 594 F.2d

181, 193 (9th Cir.), cert. denied, 444 U.S. 864 (1979);

Committee for Jones Falls Sewage System v. Train, 539

F.2d 1006, 1008-1009 (4th Cir. 1976); United States v. Ira

S. Bushey & Sons, Inc., 363 F. Supp. 110, 119-120 (D.

Vt.), aff'd, 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417

U.S. 976 (1974); United States v. Atlantic-Richfield Co.,

478 F. Supp. 1215, 1218-1220 (D. Mont. 1979).

B. The Clean Water Act Expressly Preserves Inde-

pendent Federal Common Law Rights And Rem-

edies Regarding The Abatement Of Water Pollu-

tion

1. The language of the Clean Water Act makes clear

that Congress intended to preserve the federal common

law of nuisance. Section 505 of the Act, 33 U.S.C. 1365,

authorizes citizen suits, including suits by states, to en-

force the terms and requirements of the Act. Section

505(e) unambiguously provides, however, that “(nJjothing

in this section shall restrict any right which any person

(or class of persons) may have under any statute or com-

mon 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) (emphasis supplied). Since the Act specifically de-

fines person to include a “State, municipality, commission,

or political subdivision of a State, or any interstate body”

(33 U.S.C. 1362(5)), it seems indisputable that the Act

does not preclude respondents from suing petitioners

under the pre-existing federal common law of nuisance.

See, e.g., National Sea Clammers Association v. City of

New York, supra, 616 F.2d at 1233 n.31; California Tahoe

Regional Planning Agency v. Jennings, supra, 594 F.2d

at 193; Note, Federal Common Law Remedies for the

Abatement of Water Pollution, 5 Ford. Urban L.J. 549,

557 (1977).

Other sections of the Act also support the court of ap-

peals’ conclusion that Congress did not intend to preempt

the federal common law of nuisance as it applies to this

case. First, where Congress sought to preempt the appli-

cation of other laws, it did so expressly. See Section

312(f)(1), 33 U.S.C. 1322(f)(1). No such explicit declaration

governs a municipality’s discharge of raw sewage into in-

terstate waters, and particularly in light of the express

language of Section 505(e), none should be lightly implied.

See Nader v. Allegheny Airlines, Inc., supra, 426 U.S.

at 298-299; Texas & Pacific Ry. v. Abilene Cotton Oil

Co., supra, 204 U.S. at 4387.%°

Moreover, Sections 510 and 511 of the Act establish

that, except as otherwise provided by the Act, neither a

state nor any federal officer or agency is precluded from

promulgating or enforcing more stringent pollution con-

trols and standards than those required by the Act. 33

U.S.C. 1870 and 1371. See also 33 U.S.C. (Supp. II)

1251(b) (“It is the policy of the Congress to recognize, pre-

serve, and protect the primary responsibilities and rights

of States to prevent, reduce, and eliminate pollution”). In

other words, all dischargers must meet the minimum level

of effluent control set by EPA pursuant to the Act, and

may, in addition, be required to meet more stringent

standards established by other statutes or common law.

See, e.g., [llinois v. Outboard Marine Corp., supra, 619

F.2d at 630; United States Steel Corp. v. Train, 556 F.2d

822 (7th Cir. 1977); Homestake Mining Co. v. EPA, 477

F. Supp. 1279, 1283-1284 (D. S.Dak. 1979).

In sum, the language of the Act offers no support for

petitioners’ preemption argument. To the contrary, it is

3°Petitioners contend (Br. 33-36) that because the Clean Water Act

is sufficiently comprehensive and complete, there is no longer a need

for a federal common law. In short, petitioners suggest that the Clean

Water Act fully occupies the field of water pollution control. However,

as we demonstrate in Point C, infra, the common law continues to play

a vital role in this area. More important, since preemption is essen-

tially a question of congressional intent, the express language of the

Act should be deemed controlling, unless application of the common

law would, in a particular case, utterly defeat the purposes of the Act.

See, e.g., Nader v, Allegheny Airlines, Inc., supra; Texas & Pacific

Ry. v. Abilene Cotton Oil Co., supra.

apparent that Congress expressly contemplated that the

federal government, the states, and even private citizens

could bring suits under the federal common law or other

laws to abate water pollution regardless of whether the

particular discharger was in compliance with the effluent

limitations and other regulations of the Act.

2. The legislative history of the Clean Water Act also

refutes petitioners’ preemption claim. The Senate Report

accompanying the 1972 Act describes the congressional in-

tent informing Section 505(e):

It should be noted, however, that the section would

specifically preserve any rights or remedies under

any other law. Thuis, if damages could be shown,

other remedies would remain available. Compliance

with requirements under this Act would not be a de-

fense to a common law action for pollution damages.

S. Rep. No. 92-414, 92d Cong., Ist Sess. 81 (1971), re-

printed in 2 A Legislative History of the Water Pollution

Control Act Amendments of 1972, 98d Cong., 1st Sess.

1499 (Comm. Print 1973) (hereinafter “Leg. Hist.”).*?

Likewise, the House Report explains that Section 505(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.” H.R. Rep. No. 92-911, 92d

Cong., 2d Sess. 184 (1972) (emphasis supplied), reprinted

in 1 Leg. Hist. 821.

In addition, the contemporaneous legislative debates

and hearings demonstrate that Congress specifically fo-

cused on the federal “common law of water pollution

abatement” (1 Leg. Hist. 688) and concluded that enact-

ment of the Clean Water Act would not limit or preclude

such suits. See, e.g., 1 Leg. Hist. 191-194, 211, 676;

Water Pollution Control Legislation: Hearings Before the

31 Petitioners rely (Br. 41) on another passage from the Senate Re-

port regarding Section 505. See S. Rep. No. 92-414, supra, at 79, re-

printed at 2 Leg. Hist. 1497. But that statement refers only to the

scope of citizen suits authorized by Section 505 and not to independent

common law actions. In such enforcement suits, the courts may not

reexamine the standards set by EPA.

Subcomm. on Air and Water Pollution of the Senate

Comm. on Public Works, 92d Cong., 1st Sess., Pt. 1, 648,

672, 687, 718, 720, 731 755 (1971) (hereinafter “Senate

Hearings”) ; Water Pollution Control Legislation —1971:

Hearings Before the House Comm. on Public Works, 92d

Cong., Ist Sess. 1028, 1109-1110, 1530, 1536, 1748 (1971).

And, as evidenced by Section 505(e), Congress considered

and rejected the alternative of preempting the common

law and making citizen suits under Section 505 “the sole

and exclusive method which citizens may participate in in

this kind of litigation * * *.” Senate Hearings, Pt. 1, at

724. See id. at 730-731, 1071-1077.

For example, in a colloquy on the floor of the Senate,

Senator Griffin inquired whether passage of the Clean

Water Act would affect in any way the then ongoing Re-

serve Mining Company litigation. 1 Leg. Hist. 191. The

Senator specifically noted that this suit, which concerned

the discharge of taconite tailings into Lake Superior, was

based in part on the federal common law of “public nui-

sance” (ibid.). See Reserve Mining Co. v. EPA, 514 F.2d

492, 501 (8th Cir. 1975). Vonsistent with the position taken

by EPA, Senators Muskie*? and Hart replied that the

Clean Water Act would not affect or hinder “the suit now

pending against the Reserve Mining Co., under the Refuse

Act of 1899 * * * [,] the existing Federal Water Pollution

Control Act or other law.” 1 Leg. Hist. 211 (emphasis

supplied). See 1 Leg. Hist. 191-194; Senate Hearings, Pt.

1, at 1017-1020. See also 1 Leg. Hist. at 248 (similar col-

loquy between Reps. Dingell and Wright).

3. In striking contrast to their preemption argument,

petitioners also contend that Section 505 provides for fed-

eral common law actions, but that Section 402(k) limits

common law remedies to enforcement of the effluent lim-

%2Senator Muskie was the primary author of the Clean Water Act

and his views are therefore entitled to particular weight. See, e.g.,

E.I. duPont deNemours & Co. v. Train, supra, 430 U.S. at 129;

Simpson v. United States, 435 U.S. 6, 18 (1978).

itations required by the Act.** Thus, petitioners crypti-

cally suggest that “[sJince compliance with [an NPDES]

permit is specifically defined by Sec. 402(k) * * * as com-

pliance with Sec. 505 * * *, and since common law actions

are provided for in Sec. 505, it follows that [the terms of

the permit] are the discharge limitations to which a dis-

charger may be held under common law * * *” (Br. 55).

This syllogism is seriously flawed in several respects.

First, petitioners ignore the plainly limited scope of Sec-

tion 402(k). As the Court explained in EPA v. State Water

Resources Control Board, 426 U.S. 200, 205 (1976), Sec-

tion 402(k) merely provides that, for purposes of enforce-

ment actions under Sections 309 and 505 of the Act, 33

U.S.C. (and Supp. II) 1819 and 13865, “a discharger in

compliance with the terms and conditions of an NPDES

permit is deemed to be in compliance with those sections

of the [Act] on which the permit conditions are based.” See

33 U.S.C. 1342(k).34 Section 505 is not listed in Section

402(k) as one of the “sections of the [Act] on which the

permit conditions are based.” In view of the specific and

exhaustive enumeration of statutory provisions covered by

Section 402(k) (7.e., Sections 301, 302, 306, 307 and 403,

33 U.S.C. (and Supp. IT) 1311, 1312, 1316, 13817, and 1348),

there is no basis for ignoring the express limitations set

forth in Section 402(k). See, e.g., Lewis v. United States,

No. 78-1595 (Feb. 27, 1980), slip op. 7; Andrus v. Allard,

33Petitioners’ contention that Section 505 provides for common law

actions contradicts petitioners’ primary argument that federal common

law suits would interfere with the congressional design inherent in the

Clean Water Act. See Point C, infra. Indeed, petitioners’ sole expla-

nation of the language in Section 505(e) suggests that Congress pur-

posefully created federal common law actions as part of the statutory

scheme.

The Court also recognized that compliance with the permit does

not even constitute compliance with all provisions of the Act. See 426

U.S. at 205; 33 U.S.C. 1342(k) (“except any standard imposed under

section 1317 of this title for a toxic pollutant injurious to human

health”). See also E. J. duPont deNemours & Co. v. Train, supra, 430

U.S. at 138 n.28 (“The purpose of § 402(k) seems to be to insulate per-

mit holders from changes in various [EPA] regulations during the

period of a permit”).

444 U.S. 51, 56 (1979); Huddleston v. United States, 415

U.S. 814, 822 (1974).

Furthermore, petitioners’ argument is premised on an

erroneous characterization of Section 505(e). That provi-

sion preserves rather than creates the federal common law

of nuisance. In fact, as we have previously pointed out

(Point A 1, supra), the federal common law regarding in-

terstate pollution was well established by the time Con-

gress enacted the Clean Water Act. Because federal com-

mon law suits are therefore not enforcement actions under

Section 505 of the Act, Section 402(k) simply does not pur-

port to address the limits and contours of the federal

common law or any other requirement outside of the Act.

Compare 33 U.S.C. 1371(a), (b) (dredge permits issued

under Section 404 of the Act, 33 U.S.C. (Supp. II) 1344,

generally satisfy requirements of Refuse Act, 33 U.S.C.

407, Rivers and Harbors Act of 1910, 33 U.S.C. 421, and

Supervisory Harbors Act of 1888, 33 U.S.C. 441-451b).

Finally, the language and legislative history of the Act,

as well as EFA’s own regulations, show that “mere com-

pliance with agency regulations is not sufficient in itself

under the Act to exempt a [discharger] from common-law

liability.” Nader v. Allegheny Airlines, Inc., supra, 426

U.S. at 308 n.19. Cf. New Jersey v. City of New York, 283

U.S. 478, 482-483 (1931); Baltimore & Potomac R.R. v.

Fifth Baptist Church, 108 U.S. 317 (1883).5 Thus, Sec-

tions 505(e) and 510 establish that, in addition to enforcing

the terms of the Act, any interested person— including a

state—may seek to enforce any other more stringent

rights and remedies provided for by other statutes or

common law. See 33 U.S.C. 1365(e), 1870. See also 33

U.S.C. (and Supp. II) 1251(b), 1311(b)(1)(C), and 1371.

Likewise, the Senate report unequivocally states that

35 Although EPA’s regulations “will not necessarily mark the outer

bounds of the federal common law, they may provide useful guidelines

in fashioning such rules of decision.” Jllinois v. City of Milwaukee,

supra, 406 U.S. at 103 n.5. Here, for example, the court of appeals

considered EPA’s effluent limitations and regulations in affirming in

part and reversing in part the remedial order of the district court (Pet.

App. A-20 to A-48).

“{e]ompliance with requirements under this Act would not

be a defense to a common law action * * *.” S. Rep. No.

92-414, supra, at 81, reprinted at 2 Leg. Hist. 1499. See

Senate Hearings, Pt. 1, at 672. Accordingly, conformance

to the terms of an NPDES permit does not “[a]Juthorize

any injury to private property or invasion of other private

rights, or any infringement of Federal, State, or local laws

or regulations.” 40 C.F.R. 122.11(d)(2).%®

C. Preservation of the Federal Common Law of

Nuisance Will Effectuate the Policies and Goals of

the Clean Water Act

1. Notwithstanding the plain meaning of the Act and its

unambiguous legislative history, petitioners repeatedly

suggest that continued recognition of an independent fed-

eral common law of nuisance will interfere with the ad-

ministration and enforcement of the Act. The short answer

to this claim is that Congress expressly preserved common

law rights and remedies as a supplement to the statutory

scheme. But, even if we ignore the specific savings clause

of the Act, it is apparent that a federal common law suit to

abate the discharge of raw sewage into Lake Michigan fur-

thers the general policies of the Clean Water Act.%?

36 PA’s administrative interpretation of the Act is entitled to great

weight. See, e.g., BE. I. duPont deNemours & Co. v. Train, supra, 430

U.S. at 184-135 & n.25; Union Electric Co. v. EPA, 427 U.S. 246, 256

(1976); EPA v. State Water Resources Control Board, 426 U.S. 200,

226-227 (1976); Train v. Natural Resources Defense Council, Inc.,

421 U.S. 60, 87 (1975).

37The legislative history of the Act shows that Congress was espe-

cially concerned about the discharge of raw sewage from sewer over-

flows and inadequate treatment plants (see, e.g., 1 Leg. Hist. 96-97,

100-104, 115-116, 121, 128, 161-162, 165, 167, 184, 346-347, 385, 405,

426, 444, 479, 495, 572-574, 599-601, 769-770, 774-775, 862; 2 Leg.

Hist. 1160-1161, 1215, 1228, 1246, 1253-1254, 1257, 1263, 1332, 1343,

1379, 1411-1412, 1423, 1458-1459), by the accelerated eutrophication of

the Nation’s lakes and ponds (see, e.g., 1 Leg. Hist. 152, 347, 385-386,

430, 456-457, 461, 493-494, 500, 599, 644, 741; 2 Leg. Hist. 1155, 1337,

1340, 1462), and by the deteriorating quality of water in the Great

Lakes (see, e.g., 1 Leg. Hist. 498-500, 502-508, 504-506, 525, 571-572,

599-601, 747, 772-773; 2 Leg. Hist. 1194, 1279, 1333, 1336, 1339,

1408-1409, 1439). Accordingly, Section 101(a) broadly declares that it

Contrary to petitioners’ assertions, application of the

federal common law regarding interstate pollution will not

in any way disrupt implementation or administration of

the Act. Certainly, a conflict between the Act and the fed-

eral common law may not “be inferred merely from the

comprehensive character of the federal [regulatory] provi-

sions.” New York State Department of Social Services v.

Dublino, 418 U.S. 405, 415 (1973). See Nader v. Al-

legheny Airlines, Inc., supra; ef. Askew v. American

Waterways Operators, Inc., 411 U.S. 325 (1973). And

here, EPA has long concluded that federal common law is

an essential supplement to the Clean Water Act, advanc-

ing rather than disrupting the goals and policies of the

statute. See Reserve Mining Co. v. EPA, supra, 514 F.2d

at 501; 40 C.F.R. 122.11(d). As the agency primarily re-

sponsible for administering and enforcing the Act, EPA’s

views on this point are entitled to substantial deference.

See, e.g., Nader v. Allegheny Airlines, Inc., supra, 426

U.S. at 306-307; EF. J. duPont deNemours & Co. v. Train,

supra, 430 U.S. at 134-135 & n.25.

In any event, petitioners’ allegations (Br. 33-46) about

the potential friction between the Act and the federal

common law of nuisance are without substance. We have

already demonstrated that the “uniformity” of effluent

limitations (id. at 37-43) contemplated by the Act is a

minimum level of effluent control that may be exceeded

by the requirements of other laws. See pages 7-8, 22,

supra; 33 U.S.C. (and Supp. II) 1251(b), 1311(b)(1)(C),

1370, 1871; Mianus River Preservation Comm. v. EPA,

is the objective of the Act “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters” and sets as a

national goal “that the discharge of pollutants into the navigable wa-

ters be eliminated by 1985.” 33 U.S.C. 1251(a). The Act also sets as an

interim goal the achievement by July 1, 1983, of “water quality which

provides for the protection and propagation of fish, shellfish, and

wildlife and provides for recreation in and on the water.” 33 U.S.C.

1251(a)(2). Finally, Section 101(b) makes clear that “[i]t is the policy of

the Congress to recognize, preserve, and protect the primary respon-

sibilities and rights of States to prevent, reduce, and eliminate pollu-

tion * * *.” 33 U.S.C. (Supp. II) 1251(b).

541 F.2d 899, 906 (2d Cir. 1976). Petitioners also claim

(Br. 45, 54-55) that the possibility of judgments under the

common law will deter and delay the industrial and gov-

ernmental planning and investments necessary to comply

with the Act. But regardless of potential liability under

other laws, dischargers must comply with the terms and

deadlines of the Act.** Moreover, in applying common law

nuisance principles the federal courts have means of tail-

oring the relief to the equities in each case.®® See, e.g.,

Comment, Federal Common Law in Interstate Water

Pollution Disputes, 1973 U. Ill. L. F. 141, 151-159; Bry-

son & Macbeth, Public Nuisance, the Restatement (Sec-

ond) of Torts, and Environmental Law, 2 Ecol. L. Q. 241,

264-275 (1972); New Jersey v. City of New York, supra,

283 U.S. at 483.4°

38 Indeed, lack of federal funding does not excuse municipal non-

compliance with the Act, although Congress modified the Act in 1977

to permit limited extensions where “the United States has failed to

make financial assistance under this chapter available.” 33 U.S.C.

(Supp. II) 1311(i)(1). In no event may compliance be achieved later

than July 1, 1983.

39 As a general proposition, petitioners’ fears that the feders’ courts

will render belated or disproportionate remedial orders against

municipalities or other dischargers under the federal common law are

therefore unfounded. The United States did not participate in the ex-

tensive evidentiary proceedings in this case and it takes no position as

to whether the courts below fashioned an appropriate remedy under

the federal common law of nuisance in the circumstances presented

here. We note that petitioners were aware of their potential liability

under the common law before the Act was passed and were therefore

able to take that possibility into account in planning their sewage

treatment requirements.

Likewise, there is no conflict between the federal common law and

Sections 212(2) and 217 of the Act, 33 U.S.C. (and Supp. II) 1292(2),

1297. See Pet. Br. 36-37. Those sections merely require that all

federally-funded projects designed to meet the standards and require-

ments set in accordance with the Act are “the most cost efficient alter-

native.” 33 U.S.C. 1292(2)(B).

49Tn adjudicating a federal common law claim, the district court must

determine whether the defendant’s activities constitute an actionable

nuisance and must evaluate the choice of remedies in light of all the

relevant factors, including the harmful impact and benefit, if any, of

the discharger’s conduct. See Comment, supra, 1973 U. Ill. L. F. at

151-159; Bryson & Macbeth, supra, 2 Ecol. L. Q. at 264-275. Because

2. Furthermore, as evidenced by the circumstances of

this case, the federal common law continues to play a criti-

cal role in protecting the environment. In amending the

Act in 1977, Congress expressly recognized that neither

the Act nor EPA’s regulations satisfactorily address the

problem of combined storm and sanitary sewer overflows

that underlies this suit.41 See, e.g., H.R. Conf. Rep. No.

95-830, 95th Cong., lst Sess. 108 (1977), reprinted in 3 A

Legislative History of the Clean Water Act of 1977: A

Continuation of the Legislative History of the Federal

Water Pollution Control Act, 95th Cong., 2d Sess. 292

(Comm. Print 1978) (hereinafter “Cont. Leg. Hist.’); S.

Rep. No. 95-370, 95th Cong., Ist Sess. 81 (1977), re-

printed in 4 Cont. Leg. Hist. 714. Accordingly, Congress

directed the Administrator of EPA to prepare and submit

“a report on the status of combined sewer overflows in

municipal treatment works operations.” Pub. L. No. 95-

217, Section 70, 91 Stat. 1608, 33 U.S.C. (Supp. IT)

1375(c).42 Yet, until such time as Congress acts defini-

the elements of a nuisance claim are matters particularly within the

conventional experience of the federal courts (see United Steelworkers

v. United States, 361 U.S. 39, 61-62 (1959) (Frankfurter and Harlan,

J.J., concurring); New Jersey v. City of New York, supra; Georgia v.

Tennessee Copper Co., supra) and because adjudication of a nuisance

claim does not involve setting national effluent limitations, evaluating

industry-wide conditions, or other matters within the special expertise

of EPA, the district courts are not required under the doctrine of pri-

mary jurisdiction to refer common law suits to the EPA in the first

instance. See, e.g., Nader v. Allegheny Airlines, supra, 426 U.S. at

303-307; United States v. RCA, 358 U.S. 334 (1959); Far East Con-

ference v. United States, 342 U.S. 570, 574 (1952). In fact, even under

the Act, the courts adjudicate whether a discharger is in compliance

with the terms of its permit. See 33 U.S.C. (and Supp. II) 1319, 1365.

It would thus be highly anomalous if EPA, which does not even make

administrative determinations regarding compliance with an NPDES

permit, were required to determine whether particular discharges con-

stitute a common law nuisance.

“1Such overflows are not subject to the secondary treatment and

best practicable waste treatment requirements applicable to publicly

owned treatment works. See page 7, supra.

42This report was issued in October 1978. See EPA, Report To Con-

gress On Control of Combined Sewer Overflow In The United States

(1978).

tively, the federal common law may well be the only sub-

stantial source of protection against interstate pollution

caused by combined sewer overflows.**

The federal common law regarding interstate water

pollution supplements the federal environmental regula-

tory scheme in still other critical ways. For example, al-

though EPA has established standards for secondary

treatment, it does not specifically regulate a municipality’s

discharge of pathogens, fecal coliforms, and

phosphorous—the very pollutants whose discharge is the

basis for the remedial order in this case. Particularly

where, as here, one state seeks to abate pollution

emanating from another state, the federal common law

may therefore be the only effective basis for relief.

Moreover, in those pollution disputes in which damages

are more appropriate than injunctive relief (see, e.g.,

43 Petitioners erroneously suggest (Br. 34-35) that the Act supplies

several different adequate remedies. In fact, however, Illinois has

adopted more stringent pollution control standards regarding Lake

Michigan than has Wisconsin, but is unable (under the Act) to compel

Wisconsin to adopt similarly high standards. To be sure, the Act pro-

vides that a state whose waters are affected by discharges in another

state may recommend that the other state adopt more stringent water

quality standards or impose higher standards in particular permits.

See 33 U.S.C. 1342(b)(3), 1342(b)(5), 1313(c). But neither the courts

nor the Administrator are authorized to reject a permit or a state

water quality standard that is in compliance with the terms of the Act

and existing EPA regulations. See 33 U.S.C. (and Supp. IT) 1313(¢)(3),

1342(d)(2), 1369(b). The federal common law thus serves the critical

functions of protecting the states’ quasi-sovereign interests regarding

the quality of its waters and also of abating the otherwise unregulated

or underregulated pollution of interstate and navigable waters. See

Comment, Federal Common Law In Interstate Water Pollution Dis-

putes, 1973 U. Ill. L. F. 141, 159-160.

44E ven where EPA has regulated a particular type of discharge, it

has done so on a national basis. Without relief under the federal com-

mon law, a state or private person may be powerless to limit or abate

interstate discharges that, although in compliance with EPA regula-

tions, cause significant harm “in the context of localized situations.”

Washington v. General Motors Corp., 406 U.S. 109, 116 (1972).

Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S.

334, 338-339 (1933); Boomer v. Atlantic Cement Co., Inc.,

26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.2d 312 (1970)),

the federal common law alone can supply a suitable rem-

edy since the Clean Water Act only provides for equitable

relief and limited civil penalties. See Zener, The Federal

Law of Water Pollution Control, reprinted in Environ-

mental Law Institute, Federal Environmental Law 682,

790 (ed. Dolgin & Guilbert 1974). Cf. Wyandotte Trans-

portation Co. v. United States, 389 U.S. 191, 201-206

(1967). And both the states and the federal government

have invoked the federal common law as a basis for rem-

edying the discharge of toxic chemicals that occurred prior

to the enactment of the Clean Water Act. See, e.g., /I-

linois v. Outboard Marine Corp., supra; United States v.

Solvents Recovery Service, Civ. No. H 79-704 (D. Conn.,

filed Aug. 20, 1980); United States v. Hooker Chemicals &

Plastic Corp., No. 79-990 (W.D. N.Y., filed Dec. 20, 1979)

(Love Canal litigation). In short, there is still a pressing

need for the federal common law of nuisance regarding

water pollution.

CONCLUSION

Insofar as the court of appeals held that the Clean

Water Act does not preempt or limit the federal common

law of nuisance, the judgment of the court of appeals

should be affirmed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

LouIs F. CLAIBORNE

Deputy Solicitor General

ANDREW J. LEVANDER

Assistant to the Solicitor General

DiRK D. SNEL

MARTIN W. MATZEN

Attorneys

MICHELE B. CORASH

General Counsel

Lucy ELLEN Ray

Attorney

Environmental Protection Agency

SEPTEMBER 1980

t U.S. GOVERNMENT PRINTING OFFICE: 1980 326913 56

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