Petition — Outboard Marine Corp. v. Illinois

In the [

Supreme Court of the Gnited States

Octoser Term, 1980

OUTBOARD MARINE CORPORATION,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

(by William J. Scott, Attorney General),

UNITED STATES OF AMERICA,

and

MONSANTO COMPANY,

Respondents.

Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Seventh Circuit

Ricoarp J. PHELAN Ricuarp J. Kissen

MicHaEL Pore Tuomas H. DonoHOE

RosEann OLIVER JEFFREY C. Fort

Puetan, Pore & JoHn Joanna C. New

30 North LaSalle Street Martin, Craic, CHESTER

Suite 3030 & SonNENSCHEIN

. Chicago, Illinois 60602 115 South LaSalle Street

Suite 2400

Chicago, Illinois 60603

(312) 368-9700

Hvuex B. THomas

AssociaTE GENERAL COUNSEL

Ovrsoarp Marine CorPorRa-

TION

100 Sea-Horse Drive

Waukegan, Illinois 60085

RN AER RM RE LR LSAT AOE IBERIA IE ERE

The Scheffer Press. Inc—(312) 263-6850

i y

7%

In THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1980

No.

OUTBOARD MARINE CORPORATION,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

(by William J. Scott, Attorney General),

UNITED ST.:1TES OF AMERICA,

and

MONSANTO COMPANY,

Respondents.

a +

-~$

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, OUTBOARD MARINE CORPORATION,

respectfully prays that a writ of certiorari be issued to

review the decision of the United States Court of Appeals

for the Seventh Circuit.

QUESTIONS PRESENTED

1. Whether the federal common law has been displaced

by enactment of a comprehensive statutory and regulatory

scheme in the Clean Water Act.

2. Whether the federal: common law of nuisance

should be extended to a controversy which does not

involve an inter-state dispute.

3. Whether a citizen is permitted to intervene as a

matter of right under Section 505(b)(1)(B) of the Clean

Water Act (33 U.S.C. §1365(b)(1)(B)) where the relief

sought by the federal government is the removal of

alleged contaminants rather than compliance with an

effluent standard, limitation or order.

4. Whether the Court of Appeals properly allowed

the state Attorney General to choose between maintaining

a separate suit, or intervening in the pending case

brought by the United States government, when the Clean

Water Act provides for a right to intervene only when

the statute prohibits a separate citizen’s suit.

~ a ee

a

INDEX

"pace

PUTRI TAONT ..; ssashsasossccasssccevvesivvavsdscrssstensecsscnscsccccsssovegies 1

STATUTORY PROVISIONS INVOLV#D. ................ 1

STATEMENT OF THE CASE visseessssnssenne ae

REASONS FOR GRANTING THE WRIT ..scscs0e- 5

I. THE FEDERAL COMMON LAW OF NUI-

SANOE HAS BEEN DISPLAC EN-

ACTMENT OF THE CLEAN WATER ACh 6

A. The Clean Water Act Represents A Com-

prehensive Approach To Restore And

Maintain The Quality Of The Waters Of

The Umited TRU ii cccsiciceleiceseiccotossassccsingiens 7

B. The Doctrine Of Separation Of Powers

Prohibits The Federal Common Law Of

Nuisance Being Applied To Dispute In-

volving Alleged Pollution Of Interstate

Or Navigable Waters ............. hdaskodh tceenabisigis 12

C. The Federal Common Law Of Nuisance

Jeopardizes The Integrity Of The Stat-

aay: TRIE oo siniichicdinctsinccasinssihisnindionicassioiicnie 15

D. Summary - This Court Should Hold That

The Clean Water Act Has Displaced

The Federal Common Law Of Nuisance .. 16

U. IF THE FEDERAL COMMON LAW OF

NUISANCE HAS NOT BEEN DISPLACED

BY THE CLEAN WATER Ag , THEN

IT CAN EXIST ONLY TO PR VIDE AN

IMPARTIAL FORUM AND RULE OF DE-

CISION FOR CASES INVOLVING AN IN-

TER-STATE DISPUTE. wiesssssssssssssssesssseessssenen 17

7.

il

PAGE

A. The Decision Below Created A Conflict

Among The Circuits. The Circuits Con-

tinue To Be Confused In Their Under-

standing Of The Federal Common Law

COE I iii cticcdk coseserhncidbbonanesbinsicbes 17

B. Federal Common Law Of Nuisance Can

Exist Only For Inter-State Disputes .... 20

C. The Opinion Below Unnecessarily And

Improperly Broadens The Jurisdiction Of

Federal Courts Over Nuisance Claims... 22

lil. THERE IS NO STATUTORY RIGHT OF

INTERVENTION TO THE PENDING

SUIT BECAUSE THAT ACTION IS NOT

ONE SEEKING TO REQUIRE COM-

PLIANCE WITH A ‘“‘STANDARD, LIMI-

AEA e Ce, CRREPIIRD si cecernecsoajeacsncssibsdsresence 24

VI. THE COURT OF APPEALS COMMITTED

SERIOUS ERROR IN ALLOWING THE

INTERVENOR TO CHOOSE BETWEEN

MAINTAINING A SEPARATE SUIT OR

INTERVENING IN THE PENDING CASE

BROUGHT BY THE UNITED STATES .. 28

COTA PRIII TEN kconssisksslovesdicsecscotndorindibindsclensesetpiosesesidenseseccoese 30

CASES

Arizona v. California, 373 U.S. 546 (1968)... 13, 16

Committee for the Consideration of the Jones Falls

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

REPT V-Lecsscih teh isdicdidchiBlet csuhchastibcranihsdnhastascasscdspndscdabbisontoowece 18

Costle v. Pacific Legal Foundation, ........ (1 f eaemOe ,

100 S.Ct. 1095 (1980) ...nrrsersssesersssersnereesneeesssnseersssees 9, 28, 29

DuPont v. Train, 430 U.S. 112 (1977) ....cscscseees 8, 10, 25, 28

East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d

1289 (2d Cir. 1977), aff’g Parsell v. Shell Oil Co.,

421 F.Supp, 1275 (D.Conn. 1976) .....cccsssssssssssnesseees 20

iii

PAGE

EPA v. Califorma, 426 U.S. 200 (1976). ............ 9,10, 11

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ............ 21

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976) .... 26

Fuller v, Volk, 351 F.2d 323 (3d Cir. 1965) .........0 29

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ........ 21

Gully v. First National Bank, 299 U.S. 109 (1936) .... 21

The Harrisburg, 114 U.S. 199 (1886) w..ccccssesesneesees 14

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

Sakss Wiastincsdachedeheidocadcicusbndargloapunisiadaes 6, 10, 18, 19, 20, 21, 22, 23

IWinois v. City of Milwaukee, 599 F.2d 151 (7th Cir.

IPT: circteninseishdieetinsagtuntipselbalinasnepbapnpiaciiliapadeonsedaanohmaclibiel 4

Kalur v. Resor, 335 F.Supp. 1 (D.D.C. 1971) ..........00 11

Massachusetts v. United States Veterans’ Administra-

tion, 541 F.2d 119 (Ast Cir. 1976) 00.2... ccscsscsceseseceees 19

Miree v. DeKalb County, 433 U.S. 25 (1977) .....ccccsee 21-22

Mobil Oil Corp. v. Higginbotham, ......... UB. ican

SEE I UE’ aitiiedintnissntnoandiinscoscotaninneesnigepmbion 14-15, 16

Moragne v. States Marine Limes, Inc., 398 U.S. 375

RIE > coe usa oscaqeacacadinecesedilscahniesiitadasdiaensiapibesinsigiaeuantetebaeisnstafos 14

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

EE A aaie GIs | ROP UUED sctasclacadcnpetiicnernincsonsscsesisioeisiuisesenipasilticees 9

National Sea Clammers Association v. City of New

York, 616 F.2d 1222 (3d Cir. 1980) ou... cscccccesssssseees 19

New England Legal Foundation v. Costle, No, 79-6202

CBE Cer. Tie Ba DOTY ass ccsecicecccncecaccsnss Aectniencimncssnanpaiicaniel 20

Pennsylvania Industrial Chemical Corp. v. United

States, 411 U.S. 655 (1973) ...ccscccscssesssssseees Apesslnisildais 11

Porter County Chapter, Izaak Walton League v.

Costle, 571 F.2d 359 (7th Cir. 1978) ......ccccssssssseees ah

Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir.

AIT AMO IIE ee TINE innibuiin 18, 19

7s

| iw

aa PAGE

Sea-Land hoieectie Inc. v. vunconal 414 U.S. 575

1974) . SERRE IS SSE TEL ECON a ae

Stream Pollution. Control Bosak v. United States Steel

~ Corp., 512 F.2d 1036 (7th Cir, 1975) ssssscisesnsese 29

Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971) ........6, 18

TVA v. Hill, oss... U.S. sn 98 S.Ct. 2279 (1978) ....12,13

Wallis v. Pas-American Petrolewm Corp., 384 U.S. 63

RL ROE LEED LEER GREENE OR 21

STATUTES

| Judiciary and Judicial Procedure

Nae ER es lle iE ALO Re ROP TRARY 2 18, 22

Rivers and Harbors Act *,

Tee 11

Clean Water Act

ee ansessmaiinnal 7

a ee a a 12

ee mA A RE IRR RES RED | 11

On i a 10

se 11

EE LCE ONC TS ee OM 4

Oe a a er 7,11

OG GREE SERN DNR SCARRED US RN RR -

a x

| AE RENCE Reales POR SRR PME ANT ere 11

RE ii ii a 11

BB U.S.C. §1B42 srcrrsooocrsesroyeerorersereenprenssreneecDy 10, 11, 19, 29

. ' a

y

PAGE

BB TEEC, SEBEA icici icceadbcecikes Seoscbcicbabccsbiosecboves 4

BB WIC, SUGGS soanccccciaicssscssssnnssases 1, 8, 10, 28, 24, 25, 27, 28, 29

BO Be RMI siseltanrcesintnastninnnstsosepezcaintsssoovnpetros swe9 15

a POST IA 23

Boulder Canyon Project Act

MN III, SABE MIT si iiicessstscccsesconccsissuonnotagiec SE ssady > RR

OTHER HORITIES

i aka 28

A History of the Federal Water Pollutioi® Con-

trol Act Amendments of 1972 (Comm. Print,

Ee ~ SRE RS R ER a 10, 12, 23, 27

Murphy, T.J. zeszutks, C.P., Precipitation In-

puts Of PCBs To Lake Michigan, J. GREAT

LAKES: RES. (Dec. 1977) .rccsccsssessessssecseerseecesneesnees 26

OPINIONS BELOW

The opinion of the United States Court of Appeals

for ‘the Seventh Circuit, published on March 28, 1980,

is as yet unreported, and is reproduced herein as Appendix

A: The order of the court denying a petition for rehearing

is reproduced herein as Appendix B. The memorandum

opinions and orders of the United States District Court

for the Northern District of Illinois, rendered on May

29, 1979 and February 28, 1979, which were reversed

by the Court of Appeals, are unpublished and appear

herein as Appendices C and D.

Wa en

JURISDICTION

The Court of Appeals for the Seventh Circuit issued

its judgment on March 28, 1980. On April 29, 1980, the

court denied petitioner’s timely filed petition for rehear-

ing. This Court has jurisdiction pursuant to 28 U.S.C.

§§1254 and 2101(c).

STATUTORY PROVISIONS INVOLVED

33 U.S.C. $1251 et. seq.

33 U.S.C. §1365(b)(1)(B) provides in pertinent part: ©

(b) No action may be commenced -

(1) Under subsection (a) (1) of this section -

(b) if the Administrator or State has com-

menced and is diligently prosecuting a civil or

criminal action in a court of the United States,

or a State to require compliance with the stan-

dard, limitation, or order, but in any such action

in any court of the United States any citizen may

intervene as a matter of right.

STATEMENT OF THE CASE

The consolidated appeals of the ITllinois Attorney

General to the Court of Appeals are a part of several

related proceedings in the United States District Court

for the Northern District of Illinois. On March 1, 1978,

Outboard Marine Corporation (“OMC”) filed suit against

the Administrator of the United States Environmental

Protection Agency (“EPA”). OMC there is claiming that

the environmental agencies have failed to properly per-

form their responsibilities under the Clean Water Act,

including with respect to Waukegan Harbor. That case

(78 C 751) is awaiting trial before the Honorable Judge

George M. Leighton of the United States Court for the

Bob ses

Northern District of Illinois. On March 17, 1978, the

United States filed suit against OMC also in the Northern

District. That ‘action is pending before the Honorable

Fiank McGarr (78 ‘C 1004). On August 10, 1978, the

Tilinois Attorney General filed its own complaint against

1

The Petitioner, OMC, is a Delaware corporation with

its executive headquarters in Waukegan, Illinois. (R2,

Item 1, par. 5)*. It is alleged by both the United States

and the Illinois Attorney General that during the years

1959 ‘through 1972 OMC purchased a hydraulic fluid

composed of polychlorinated biphenyls (“PCBs”), which

fluids were used in an aluminum die cast facility. (Rl,

Item 1, para. 10; R2, Item 1, para 5). OMC’s corporate

offices are adjacent to this former facility. It is further

alleged that OMC discharged PCBs into a ditch'on OMC’s

property (alleged to be a navigabic waterway), into

Waukegan Harbor and Lake Michigan. (Rl, Item 1,

para. 414; R2, Item 1, para. 7). Although there have

never been effluent standards governing the discharge

of PCBs frém an aluminum die casting facility, both

the [Illinois Attorney General and the United States

brought suit against OMC in federal district court seeking

1 In addition, an administrative proceeding before ‘the

Tilinois Pollutidn Control Board involves a potential

determination as to whether OMC must take additional

steps to contro] its. discharges. (OMC v. IEPA, PCB

79-141). That proceeding is also continuing.

* These statements are taken from the complaints fl

by the United States and the Illinois Attorney Gener

‘and frdm tle récords filed in the two — to ‘the

Seventh Cireuit (Nos. 79-134 and 79-1725). As ‘used

herein, ‘‘R1’’, refers to the ‘record in the first case [the

pitorney General’s independent claim] and “R2” to recotd

‘items (from the 79-1725 case) [denial of intervention]

ea

--3— %

‘to require OMC to study techniques of removal ‘and

undertake the removal of sediments allegedly contami-

rae with PCBs. (Ri, Item 1, pp. 13-14; R2 Item 1,

. 6-7). These suits claim that OMC was prohibited

ti ever discharging PCBs. (Rl, Item 1, para. 23, R2;

Item 1, para. 12, 18)

The opinion of the Court of Appeals below decided

two, consolidated appeals by the Illinois Attorney Gen-

eral. The first appeal arose from the dismissel of the

Attorney General’s independent complaint. Two federul

causes of action were claimed: one for violation of the

Clean Water Act and the second under the federal com-

mon law of nuisance. The claims, however, alleged that

the discharge had resulted in damage to Illinois’ aquatic

life, bird life and water quality, as well as harm to the

health and welfare of the citizens of Illinois. No other

state has sought to sue OMC for any injury to its inter-

ests. The dispute is between an elected official of the

State of Illinois and an Illinois industry for allegedly

injuring interests of Illinois citizens.

The district court dismissed the Attorney General’s

complaint; finding first, that he had not given the 60

day notice required by the Clean Water Act. 33 U.S.C.

§$1365(b)(1)(A). That finding was not appealed by the

Attorney General. The district court also found that the

complaint failed to state a cause of action for federal

common law nuisance, because the allegations involved

an intra-state controversy between the Illinois residents

alleging injury in Dlinois, rather than an injury which

effected interests of more than one state. (App. D-4).

Because there were no proper federal claims the district

court dismissed the allegedly pendent state claims. (App.

D-4)

7.

Bid

After dismissal of the complaint, the Attorney General

moved to intervene in the lawsuit which had been filed

‘by the United States against the petitioner. That pro-

posed complaint in intervention alleged the same facts

as had the Attorney General’s first, independent com-

plaint. (R2, Item 60) It also requested that petitioner

be required to undertake a study of techniques of removal

and removal of allegedly contaminated sediments under-

lying navigable waters. Id. The district court denied the

State’s petition to intervene holding that the United

States’ suit was not an action ‘‘to require compliance”’

with a “standard, limitation or order,” and hence the

state did not have the right to intervene under Section

505(b)(1)(B) of the Act. (App. C-4) It also found that

the interests of the Illinois Attorney Genera! were ade-

quately represented by the United States and also refused

to grant permissive intervention. (App. C-5)

In its opinion below, the Court of Appeals reversed

the district court in both appeals. It held first that the

State’s complaint, by merely alleging pollution of navi-

gable waters, was sufficient to state a cause of action

under federal common law of nuisance. Moreover, the

court held that the federal common law of nuisance

“fills the interstices of the [Federal Water Pollution

Control] Act” (App. A-7), and stated that the amend-

ments to the Act and regulations issued thereunder do

not preempt the federal common law of nuisance. (citing

its prior decision in Jllinois v. Milwaukee, 599 F.2d 151,

162-63 (7th Cir. 1979), cert. granted, 48 U.S.L.W. 3594

(March 18, 1980), (App. A-7)

In the second appeal, the Court of Appeals held that

the state Attorney General was entitled to intervene

in the United States’ case as a matter of right. Although

ae

the court recognized that the United States was con-

cerned with past pollution, rather than present discharges,

the court held, as a matter of policy, that “parties that

are affected .. . should have a right to intervene. . . .”

(App. A-19) beinphanie supplied).

REASONS FOR GRANTING THE WRIT

This case raises issues involving an extraordinarily

important and timely question—can the lower federal

courts create substantive environmental standards and

allow citizens to bypass remedies provided by federal

statutes? These issues go to the heart of our system

of federal government and the relationship between Con-

gress and the lower federal courts.

The first issue is whether, in view of the comprehensive

1972 and 1977 amendments to the FWPCA and regula-

tions promulgated thereunder, the federal common law

nuisance doctrine has been displaced. The second issue

considers whether, if nuisance has not been preempted,

it applies where there is no dispute between two or more

states. The opinion of the Seventh Circuit holding that

no interstate effect is necessary is in an acknowledged,

direct conflict with decisions of other circuits. The final

issues require this Court’s review of the seope of the

right of intervention by citizens in enforcement actions

under the Clean Water Act.

The proper role of the lower federal courts is central

to each of these issues and this petition for certiorari.

May a federal court depart from Congressional statutes

and constitutional authority to reach a “result” which,

it believes, “should” be the law, or a result based only

en policy? We think not. The function of the federal

itl ie

courts ought to be to enforce Congress’ detailed statutory

schemes, such as the Clean Water Act, and to refrain

from creation of judge-made substantive standards of

conduct. This Court should grant this writ to review the

Court of Appeals, and reverse the judgment below and

affirm the district court on these issues.

I. THE FEDERAL COMMON LAW OF NUISANCE

HAS BEEN DISPLACED BY ENACTMENT OF THE

' OLEAN WATER ACT.

In April, 1972, this Court announced that a federal

common law of nuisance claim could be brought under

28 U.S.C. $1331 for the Illinois Attorney General against

the City of Milwaukee, Wisconsin and associated sewage

commissions for discharges from the Milwaukee sewers

and treatment facilities into Lake Michigan which alleg-

edly injured Illinois’ interests. Illinois v. Milwaukee, 406

U.S. 91 (1972). Prior to that decision, only one federal

case had recognized a federal common law nuisance

claim. Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971).

Like Ilimois v. Milwaukee, Texas v. Pankey involved a

claim by one state against pollution originating outside

its territory. But since April, 1972, Congress has en-

acted comprehensive amendments to the Federal Water

Pollution Control Act and made “mid-course corrections”

to those Amendments by the Clean Water Act of 1977.

Despite these extensive amendments, the lower federal

courts have continued to accept claims based on the fed-

eral common law of nuisance. The Seventh Circuit has

now “interpreted” Illinois v. Milwaukee to allow for a

federal claim, regardless of the parties, for any alleged

“nuisances” of any waterway subject to federal constitu-

tional authority. (App. A-7)

ah, “HO

A. The Clean Water Act Represents A Comprehensive

Approach To Restore And Maintain The Quality

Of The Waters Of The United States. | .

General Requirements <A

Six months after this court’s decision in [Winois v. Mu-

waukee, Congress abolished the prior Federal’ Water Pol-

lution Control Act and enacted the Federal Water Pollu-

tion Control Act Amendments of 1972. Now known as. the

Clean Water Act, the statute’s objective is “to restore

and maintain the chemical, physical and ‘iological integ-

rity of the Nation’s waters. . . .” 33 U.S.C. $1251(a). To

aceomplish this goal, Congress addressed every substan-

tive issue known to be relevant and created a detailed,

direct and logical progression for the nation’s efforts to

improve the quality of interstate and navigable waters.

The Act provides for the adoption of water quality

standards by states, and their review by U.S. EPA. 33

U.S.C. $1313(a). The states were directed to periodically

review these standards. Jd. $1313(c) (1). If the state

wishes to change a water quality standard, these revi-

sions must be submitted to U.S.EPA. These revised

standards must “be such as to protect the public health

or welfare, enhance the quality of water and serve the

purpose of this chapter.’’ Jd. §1313(¢c) (2). If the stan-

dards are inadequate, U.S.EPA is directed to adopt

proper standards.

Technology Based Effluent Limitations

A very important feature of the Act is the creation of

broad-ranging requirements to be applied at the point of

discharge. The first step in this process is the promulga-

tion of effluent limitations. U.S.EPA was directed to

adopt regulations, on a category by category basis of

wastewater treatment comparable to “best practicable

> wy

ss

as

Am

s

treatment technology currently available.” (“BPT”). See

DuPont vy. Train, 430 U.S. 112 (1977). These BPT require-

ments for all sources were to be achieved by July 1, 1977.

33 U.S.C. §1311(b) (1). Effluent limitations reflecting the

“best available treatment technology economically achiev-

able’’ (‘‘BAT”’’) were originally required to be achieved by

July 1, 1983; that step has now been divided into sepa-

rate BAT requirements and timetables for toxic pollutants

and non-toxic, conventional pollutants and a new stand-

ard of treatment for “conventional” pollutants from cer-

tain sources. 33 U.S.C. $1311(b) (2). Toxic pollutant ef-

fluent limitations (and standards where the limitations

are insufficient) are mandated under section 307(a).

Standards for new sources and for plants which discharge

to publicly-owned treatment works are also required. 33

U.S.C. $§1316; 1317(b) (c).

These technology-based effluent limitations must be

based upon the technical feasibility and economic reason-

ableness of applying water pollution control technology

and manufacturing techniques to various types of

sources. U.S.EPA develops these requirements pursuant

to rulemaking and makes extensive use of outside con-

sultants to identify the best techniques available. The

affected sources have the opportunity to point out the limits

of the recommended techniques and the efforts of the regu-

lations. And pursuant to executive order of the President,

U.S.EPA makes determination as to the economic im-

pact and other implications of the proposed regulations.

Source-Specific Requirements and Enforcement

Another major feature of the Act is the National Pol-

lutant Discharge Elimination System (“NPDES”) per-

‘mit program. This system provides a mechanism to trans-

form federal and state requirements for water pollution

control into individualized requirements for each point

source. EPA v. California, 426 U.S. 200, 205 (1976). No

point source is exempt from this permit requirement.

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

1369 (D.C. Cir. 1978). The Act also provides for permit-

ting of dredge and fill activities in protected wetlands.

33. U.S.C. $1344.

The Act provides for broad citizens’ participation in

the setting of these administrative standards, permit con-

ditions and other requirements. 33 U.S.C. §1251(e). U.S.-

EPA has historically permitted broad citizen input in-

to its rule-making and permitting procedures. By stat-

ute, NPDES permits can be issued by U.S.EPA or by

a state, only after a reasonabie “opportunity for public

hearing.” 33 U.S.C. §$1342(a) (1),(b) (3); Costle v. Pa-

cific Legal Foundation, ........ MB ices , 100 S. Ct. 1095

(1980). Citizens who have participated in these proceed-

ings may appeal the final administrative decision. F.g.,

Porter County Chapter, Izaak Walton League v. Costle,

571 F.2d 359 (7th Cir. 1978).

Although the Act provides for broad citizen participa-

tion it clearly and unequivocally limits the citizen (and

industrial) advocates to their adminstrative remedies.

A decision by U.S.EPA to issue or deny an NPDES per-

mit is reviewable under Section 509(b) (1). 33 U.S.C.

§1369(b) (1). Because it is immediately reviewable, any

issues which could have been raised in such an appeal

may not be litigated in an enforcement proceeding. Jd.

§1369(b) (2). Section 402(k) further provides that, with

but one exception, compliance with the terms of a per-

mit shall be deemed compliance, in an enforcement pro-

ceeding brought by U.S.EPA or by a citizen, with the

operative discharge related requirements of the Act. 33

ue ine

U.S.C. §1342(k). Indeed, the legislative history of Sec-

tion 505 discloses that Congress did not intend to allow

citizens to sue in federal court to secure ‘‘common law

definitions of acceptable water quality,” which was to take

place in the administrative process, S. Rep. No. 92-414,

92d Cong., lst Sess. 79 (1971); 2 Legis. Hist. at 1497.*

The intended purpose of the NPDES permit then is to

provide a measure of protection for the discharger.

DuPont v. Train, swpra, 430 U.S. at 138 n. 28, and to pro-

vide for certainty and finality for each discharger’s ob-

ligations under the Act. See, EPA v. California, supra,

426 U.S. at 205. This finality also facilitates enforcement.

A final permit may be enforced by U.S.EPA and by

citizens directly. A ‘‘citizen’’ under $505 includes a state

official such as the Lllinois Attorney General. See, 33

U.S.C. $1365(g), (h). Thus, Congress has addressed the

very deficiency in the previous Federal Water Pollution

Control Act which this Court cited in Jllinois v. Milwaw

kee, 406 U.S. at 103.

Other Issues Addressed By Congress

In addition to the detailed program to control point

sources, Congress addressed several other issues concern-

ing protection of water resources.

An entire title of the Act is devoted to the procedure

for making available federal assistance for the construc-

tion or upgrading of publicly-owned treatment works. 33

U.S.C. §§1281-1289. Section 311 is a self-contained and

exhaustive statute specifying the duties and responsi

bilities (and limits upon those liabilities) for spills of oil

and hazardous substances as identified by U.S.EPA. 33

* All citations to on Hist.” refer to “A History of

the Federal Water Pollution Control Act Amendments

of 1972” (Committee Print, 1973).

wins Wass,

U.S.C. §1321. Congress has mandated the state undertake ©

a planning process to control point sources and non-point

sources of pollution, and has authorized funds for these -

efforts. 33 U.S.C. §1288(b), 1313(e). A program for the .

restoration of publicly-owned, fresh water lakes was also

created and recently expanded. 33 U.S.C. $1324.

Other provisions of the Clean Water Act address the

transition from the prior statute and Refuse Act, to the

present comprehensive program. The 1972 Amendments

essentially terminated the Refuse Act as a basis for fed-

eral control of discharges. EPA v. California, 426

U.S. at 204. Permits issued under the Refuse act were

deemed permits issued under the 1972 Amendments. 33

U.S.C. $1342(a) (4). Any person who had applied for a

Refuse Act permit and whose application for a permit

was still pending when the 1972 Amendments were

adopted, was protected from suit for not having a per-

mit until December 31, 1974 or until the permit was is-

sued or the request denied. 33 U.S.C. §1342(k).

The statute also addresses pollutants that had already

been discharged and other non-point sources. Congress

directed that U.S.EPA identify the location of in-place

pollutants with particular emphasis on toxic pollutants

in critical harbors and tg, proceed to remove these sub-

stances’through the Corps of Engineers. 33 U.S.C. $1265.

This provision was apparently intended for harbors on

the Great Lakes, and to offset the extra costs of dredg-

>

‘Of course, the Corps of Engineers did not a gg

the meager Act 2. aid a. gr a 3 tome ck a

ot Mc fle 1 e Corps a t implemen

egulations. See also, Pennsylvania Todustes Chemical

Company (PICCO v. United % States, 411 US. 656, (1973).

ear, a district court enjoined ompenee of

"Kalur v. Resor, 355 F. Supp. 1 (DDC.

paid permits,

1971).

A

ses WA in

ing these materials. 1 Legis. History at 167. EPA was

also directed to undertake a clean-up program in Lake

Erie, and to enter into contracts for the demonstration

of practical methods for removal of pollutants from the

Great Lakes. 33 U.S.C. $1258(c), (a).

The Present Decision

The Seventh Circuit has again refused to accept the

Clean Water Act as displacing the federal common law

of nuisance. (App. A-7, see App. D-3) OMC applied for

a Refuse Act permit and was ultimately issued an

NPDES permit. The Illinois Attorney General complained »

that OMC has violated the permit, but he did not appeal

the district court’s dismissal of that count of his com-

plaint. He has never alleged that the federal statute is

inadequate, yet he has succeeded in getting into federal

court by abandoning that claim. Petitioner believes that

its federal obligations ought to be measured under the

Clean Water Act, and its NPDES permit. OMC is en-

titled to the certainty and finality Congress intended to

accord to NPDES permits. The is no basis for the federal

courts to override the gomprehensive legislative and ad-

ministrative standards included in and promulgated un- .

der the Clean Water Act, and OMC’s NPDES permit.

B. The Doctrine Of Separation Of Powers Prohibits

The Federal Common Law Of Nuisance Being Ap-

plied To Dispute Involving Alleged Pollution Of

Interstate Or Navigable Waters.

» The constitational doctrine of separation of powers allo-

cates essentia] authority among the governmentgl depart+,

mentg, The effect of the doctrine is to require that each

branch respect the distinctive powers of the others. TVA |

Vi Hal, osc: U.S. 2...) 98 8S. Ct, 2279, 2301 (1978). To .

meet this requirement, Congress must defer to the judicial ~~

7%” ‘ : th Se

t ‘ 6

D

Ba

z

f

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|

¢ no 18.

functions of interpretation and review, and the courts

must defer to the Congressional function of legislation.

This Court has consistently declined to substitute its

judgment for that of the Congress, and has refrained

from encroaching upon legislative authority where Con-

gress has expressly addressed matters of public policy.

A recent decision of this Court, TVA v. Hill, ........ US.

sessed , 98 S. Ct. 2279 (1978) exemplifies that approach.

There the Court refused to impose a judicial remedy, find-

ing that Congress had specifically ordered its priorities

in the Endangered Species Act. Basing its deference to

the Congressional policy upon the doctrine of separation

of powers, the Court stated:

Once the meaning of an enactment is discerned and

its constitutionality determined, the judicial process

comes to an end. ... [I]n our constitutional system

the commitment to the separation of powers is too

fundamental for us to pre-empt Congressional ac-

tion by judicially decreeing what accords with “com-

mon sense and the public weal.” Our Constitution

vests such responsibilities in the political Branches.

Id. at 2302. To preserve the structural integrity of the

constitutional design, this Court ruled that the judiciary

must avoid intruding upon the policy-making activities

of the Congress. Jd.

Where Congress has enacted an applicable statute, the

courts may not invoke a parallel judicial remedy. The

Court’s respect for that principle is illustrated by its de-

cision in Arizona v. Califorma, 373 U.S. 546 (1963),

where the Court was presented with the struggle of the

southwestern states to allocate the waters of the Colo-

rado River. Interstate distribution of water had been gov-

erned by two common law doctrines, prior appropriation

and equitable apportionment. Recognizing the continuing

controversy, Congress enacted the Boulder Canyon Proj-

*.

soko ilies

ect Act in 1928 to provide a method of allocating water

among the states. However, the displacement of the judi-

cial apportionment doctrines was not acknowledged until

1963, when this Court found that Congress had created

a comprehensive water distribution plan in the Boulder

Canyon Project Act. Jd. at 565.

Where Congress has so exercised its Constitutional

power over waters courts have no power to substitute

their own notions of “equitable apportionment” for

the apportionment chosen by Congress.

Id.

Moreover, even where a judicial doctrine has been

formulated for the precise issue presented, this Court has

deferred to a Congressional scheme in keeping with the

separation of powers doctrine. This Court again refused

to substitute its judgment for that of Congress in Mobil

Oil Company v. Higginbotham, ........ U.S. ccsseee , 98 S.Ct.

2010 (1978). The general maritime law provided no

survivor’s remedy, the Court had ruled in The Harrisburg,

119 U.S. 199 (1886), barring recovery for maritime

fatalities unless they occurred in waters within the juris-

diction of the state courts and their wrongful death

statutes. In 1920 Congress responded to this apparently

capricious denial of survivors’ benefits by enacting the

Death on the High Seas Act. In 1970, however, the

Court repudiated The Harrisburg and held that the

general maritime law provided a wrongful death remedy

when the fatality occurred within state waters. Moragne

v. States Marme Lines, Inc., 368 U.S. 375 (1970). The

Court further expanded that ruling in Sea-Land Services,

Inc. v. Gaudet, 414 U.S. 573 (1974), where the location

of the fatality was not considered a significant factor.

With these two decisions, the Court had created a means

of avoiding entirely the Death on the High Seas Act.

This Court rectified this confusion in Mobil Od Corp.

aT

Pe pte

0

v. Higginbotham, ........ id ER , 98 S.Ct. 2010 (1978),

where it deferred to the Death on the High Seas Act

and held it constituted the Congressional expression of a

wrongful death policy. Id. at 2015. With that decision,

this Court ruled that a judicial remedy may not be

invoked to override a statutory scheme created by

Congress. >

The present case involves a situation within the scope

of the Clean Water Act. Congress has there declared

the federal policy and has outlined its mandate to all

concerned. The courts have no authority to create addi-

tional substantive law.

*

©. The Federal Common Law Of Nuisance Jeopardizes

The Integrity Of The Statutory Scheme.

If a citizen, a state, or even the federal government

is now permitted to claim a “nuisance” under the federal

common law, the significance of the Congressional pro-

gram will be substantially eliminated. Citizens will not be

required to give prior notice of their suits against dis-

chargers and would be able to secure a judge-made water

quality standard. States and citizens will not be forced

to first participate in administrative proceedings before

going to court. Dischargers will have little incentive

in participating in the administrative program. Even fed-

eral officials might use the theory to bypass the limita-

tions stated in their enabling authority and the protec-

tion given dischargers by sections 402(k) and 509(b)(2).

This will increase the costs of doing business and

provide greater incentive towards litigation. Rather than

concentrating on achieving compliance with a known —

effluent requirement, companies and municipalities will

be forced to retain legions of lawyers and consultants

to defend their operations, Even if the company or city

wor pen

prevails, the high costs of litigating in court each and

every “nuisance”, will be paid by someone. These costs

must be borne either by the purchasers of the company’s

product (or the city’s sewer services), the taxpayers,

the investor who owns or has lent capital to the company

or city, the employees or the persons who do business

with the discharger, or any combination of these persons.

Petitioner does not challenge the clear utility of environ-

mental protection and control. However, OMC submits

that there is no basis for the federal courts being a

repository of power to duplicate and override the ad-

ministrative programs created by the Clean Water Act,

except when the court is called upon, under the provisions

of the Act, to enforce Congressional intent and restrain

improper agency action or inaction.

D. Summary - This Court Should Hold That The

Clean Water Act Has Displaced The Federal Com-

mon Law Of Nuisance.

Congress has declared the federal policy for the pro-

tection of navigable waters through the Clean Water

Act. The Act has been amended twice in the past decade

to incorporate comprehensive detailed and specific ap-

proaches to environmental control for discharges from all

potential sources of water pollution, including point and

non-point sources. To interpose the federal common law

of nuisance where the provisions of the Clean Water Act

specifically apply to the controversy presented would

allow the federal judiciary to override the policy deter-

minations of the Congress. That ruling would directly

contravene this Court’s contemporary interpretation of

the doctrine of separation of powers. Mobil Oil Corp. v.

Higginbotham, ......... DBBr : diseone , 98 S.Ct. 2010 (1978);

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

of the NPDES program and a dramatic expansion of

sae

the role of the federal courts would result. Since the

federal courts would have voided the certainty and

finality accorded to discharges in the Clean Water Act,

they would be presented with the myriad issues of dis-

charge control which the Act had allocated to adminis-

trative determination. To allow the lower federal courts

to apply the federal common law of nuisance is unwise

as a matter of judicial policy and constitutes an uncon-

stitutional usurpation of Congressional authority.

Il. IF THE FEDERAL COMMON LAW OF NUI-

SANCE HAS NOT BEEN DISPLACED BY THE

CLEAN WATER ACT, THEN IT CAN EXIST

ONLY TO PROVIDE AN IMPARTIAL FORUM

AND RULE OF DECISION FOR CASES INVOLV-

ING AN INTER-STATE DISPUTE.

While we believe this court should hold that the federal

common law of nuisance has been displaced, even if it

remains viable for some situations, it cannot properly

be applied to local disputes.

A. The Decision Below Created A Conflict Among

The Circuits. The Circuits Continue To Be Con-

fused In Their Understanding Of The Federal

Common Law Of Nuisance.

The Seventh Circuit deliberately created a conflict in

its opinion below and refused to follow the decisions

of the Fourth and Eighth Circuits.

With due deference to the courts deciding those

cases, we disagree with the rationale they adopted.

As we read Illinois v. Milwaukee, the Supreme Court

explicitly recognized a federal common law action

to abate pollution in ‘‘inter-state or navigable water.

(App. A-13)

The district court had followed those other circuits in

holding that the complaint filed by the Dlinois Attorney

t

dat

rr

»

‘—18—

General against OMC for pollution allegedly originating

at its Waukegan, Illinois plants, did not’ state a cause

of action under the federal common law of nuisance.

(App. A-13) In reversing the trial judge, the Court of

Appeals creaied a conflict among the cirevits and un-

necessarily broadened the scope of 28 U.S.C. $1331 to

include nuisance claims which presented no inter-state

issues.

In Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir.

1975), the Court of Appeals for the Eighth Circuit re-

jected the federal common law of nuisance as a basis for

relief, citing Illmois v. Milwaukee and Texas v. Pankey.

The Court held that the complaint of the United States

alleging that the defendant’s discharge significantly en-—

dangered the health of persons in the vicinity of the de-

fendant’s operations, did not allege inter-state effects

and did not have a claim for relief under federal com-

mon law of nuisance. In Committee for the Consideration

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

1006, 1008 (4th Cir. 1976), that court construed Jllinois

v. Milwaukee to stand for the proposition that federal

common law of nuisance permits the abatement ‘‘of a

public nuisance in one state which infringes upon the en-

vironmental and ecological rights of another state. .. .’’

The Court refused to apply the federal common law to

what it found to be an intra-state matter. The contro-

versy there was found to be entirely local in nature; the

parties were local, there were no allegations of any effect

outside the State of Maryland, no other state was com-

plaining of the nuisance and the law of Maryland was

adequate for the resolution of the dispute.

The Seventh Circuit refused to follow these decisions,

stating:

aN *

eid bie

There is no basis for putting a gloss on the Supréme

Court holding that would restrict its application to

situations in which one state complains of damages

to its environment or ecology by a pollution source in

another state.

(App. A.13)

Had the Seventh Circuit followed these decisions, it

would have upheld the district court. Like the plaintiffs

in Reserve Mining and Jones Falls, the alleged pollution

here involves a dispute between an Illinois official and

an Illinois based company concerning alleged vperations

at an Illinois facility which allegedly injured Dlinois

interests.

This Court should intercede to resolve this new con-

flict. Decisions from other circuits indicate they, too, are

in need of guidance as to the proper scope of the federal

common law of nuisance, The First Circuit has remarked

in dicta that “Whether the common law so recognized

{in Illimois v. Milwaukee] extends to suits involving

pollution originating within the territorial jurisdiction

of the plaintiff is doubtful.’’ Massachusetts v. Umted

States Veterans Administration, 514 F.2d 119, 123 (1st

Cir. 1976). The Third Circuit recently stated, ‘‘Relega-

ting these [private] litigants to possibly conflicting New

York and New Jersey nuisance standards would ignore

the clear intent of the Supreme Court to federalize those

standards and would undermine federal uniformity, These

plaintiffs have sufficiently alleged pollution of interstate

waters.’’ National Sea Clammers Association v. City

of New York, 616 F.2d 1222, 1233 (1980) (emphasis

supplied). The Second Circuit has summarily affirmed

a district court decision holding that the federal com-

mon law of nuisance should be limited to cases with

7%

| van

multi-state impact or effect. Hast End Yacht Club, Inc.

v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977), aff’g

Parsell y. Shell Oil Co., 421 F.Supp. 1275 (D. Conn.

1976). That court is now awaiting this court’s decision

in Milwaukee v. Illinois, 79-408, before deciding whether

a federal common law of nuisance claim may be main-

tained by residents against a New York utility which

had complied with standards approved by the U.S.EPA.

New England Legal Foundation v. Costle, No. 79-6202

(2d Cir. May 20, 1980). This Court should also clarify

the permissible scope of the federal common law of

nuisance (if it should exist at all) to resolve the dispute

among the circuits and provide definitive guidance to the

lower federal courts.

B. Federal Common Law Of Nuisance Can Apply

Only To Inter-State Disputes.

In addition to creating this conflict, the Seventh Circuit

under the federal common law of nuisance has now

created an independent basis for substantive, judge-made

standards for environmental protection, According to the

Seventh Circuit state standards are “highly relevant.”

(Slip opinion at 10 n. 16; App. A-12). And it is clear

that the federal common law of nuisance preempts state

law. As this Court stated in Jllinois v. Milwaukee:

While federal law governs, consideration of state

standards may be relevant. Thus a State with high

water quality standards may well ask that its strict

standards be honored and that it not be compelled

to lower itself to the more degrading standards of a

neighbor.

406 U.S. at 107 (citations and footnote omitted).

‘gil

But in the present case, the only “relevant” standards

are those promulgated by the State of Illinois. Should

the federal court enforce a different standard, either

more or less stringent? For the federal court to adopt and

enforce a different standard would create an independent

judicial override on state standards. Such a “brooding

omnipresence” in the federal judiciary has long been

discredited. Guaranty Trust Co. v. York, 326 U.S. 99

(1945). If the common law standard were more stringent

than Illinois, it would constitute judicial legislation of

state interests. Erie R. Co. v. Tompkins, 304 U.S. 64

(1938). But if the federal standard would not be more

stringent, then nuisance could not be a substantive federal

question and be no basis for federal jurisdiction. Gully

v. First National Bank, 299 U.S. 109 (1936).

The federal common law of nuisance should exist,

if at all, only to provide an impartial forum and rule of

decision for inter-state disputes. Each of the cases cited

by this Court in Illinois v. Milwaukee involved disputes

based upon conflicting interests of two or more states.

The federal courts interceded to resolve a classic federal-

ism controversy. The named parties need not be sovereign

states; but the parties’ adverse interests must be based

upon the laws and interests of more than one state. See,

Illimois v. Milwaukee, 406 U.S. at 105 n. 6.

It is not enough that the waters be interstate. Leases

to federal lands and a federal interest in safe aircraft

travel do not create a basis for a federal common law,

absent a “showing that state law is not adequate, . . .”

Wallis v. Pan-American Petrolewm Corp., 384 U.S. 63,

71 (1966); Miree v. DeKalb County, 433 U.S. 25, 32

i es

(1977). The decision to displace state law should be left

to Congress, at least where there is no showing of an

actual conflict between the laws of two or more states,

or between the laws of a state and a federal policv.

Miree v. DeKalb County, supra; see Illinois v. Milwaukee,

406 U.S. at 107 n.9.

The purpose then of the federal common law of

nuisance, if it is to have any purpose at all, is to provide

a rule of decision in a federal forum. Because all the

significant contacts pleaded in this case involve Llinois

law, there is no “inter-state effect” and no permissible

basis for invoking federal jurisdiction under the federal

common law of nuisance and 28 U.S.C. $1331.

C. The Opinion Below Unnecessarily And Improperly

Broadens The Jurisdiction Of Federal Courts Over

Nuisance Claims.

The opinion states that any “pollution” of water within

the commerce power of Congress gives rise to a federal

common law of nuisance claim. Neighbor may now sue

neighbor in federal court simply by claiming a “nuisance”.

The state courts and administrative bodies can be by-

passed simply by claiming sufficient damage. Because

birds fly (just as “Fish swim” [App. A-17]) and this

Court’s decision in Illinois v. Milwaukee spoke in terms

of atr and water, even localized air ‘‘pollution’’ nuisance

claims would be federal questions under the Seventh

Circuit’s decision below. An untended backyard grill, if

it allegedly caused sufficient injury to a neighbor’s prop-

erty, could be the basis for suit in federal court under

nuisance. Unless reversed, the precedent established by

the decision below would turn federal courts into a par-

por, ens

allel forum for adjudication of cases heretofore decided

only by state courts.

‘The Seventh Circuit’s ruling is an unwarranted in-

trusion of the federal courts into matters which are

purely local in nature, where state forums are available

to settle the disputes and where state law could be applied.

Moreover, the involvement of federal courts in all dis-

putes involving navigable or inter-state waters will cir-

cumvent the intent of Congress that states should play

an important role in pollution control. 33 U.S.C. $1251(b).

The application of a federal common law would preempt

the state’s own pollution control laws concerning alleged

pollution of waters and alleged harm within the state.

Illinois v, Milwaukee, 406 U.S. at 103 n.5. But Congress

intended to preserve state authority. 33 U.S.C. §1370.

The decision below would also permit citizens to bypass

the restraints of Section 505(b) of the Clean Water

Act. 33 U.S.C. §1365(b). This will undermine the incen-

tive for citizens to use their extensive administrative

opportunities before going to court. It will conflict with

Congress’ intent that citizens not resort to the courts

for creation of common law water quality standards.

2 Legis. History at 1497.

The holding of the court below that all air and navi-

gable water pollution cases involve a federal question

is clearly erroneous and goes far beyond this Oourt’s

decision in JWinois v. Milwaukee. This matter of extreme

and timely importance should be resolved by this Court

in reversing the decision of the Court of Appeals.

7%

pay” eae

Ill. THERE IS NO STATUTORY RIGHT OF INTER-

VENTION TO THE PENDING SUIT BECAUSE

THAT ACTION IS NOT ONE SEEKING TO RE-

QUIRE COMPLIANCE WITH A “STANDARD,

LIMITATION OR ORDER”.

This Court should also review the Court of Appeals’

careless application of the statute to the case before it

and the unlimited intervention allowed by the Court’s

gloss upon section 505(b)(1)(B). Further, the Court of

Appeals decided this question based upon a legislative-

type judgment which ignores the careful language of

the section. Moreover, the court effectively entered an

advisory opinion.

After his complaint against OMC was dismissed and

he had filed a notice of appeal in the Court of Appeals,

the Attorney General then filed a Motion for Leave to

Intervene in the case brought by the U.S.EPA. This

U.S.EPA case was filed in March, 1978 (five months before

the Attorney General’s claim was filed) and had then

been pending before Judge McGarr for a year. The dis

trict judge had had the opportunity to meet with counsel

for the United States and OMC and rule on various

interlocutory and discovery matters. He had been apprised

of the nature of that case by the parties. After considering

briefs by the parties, Judge McGarr denied the Motion

to Intervene. The Attorney General appealed.

The Attorney General’s independent complaint, which

included an allegation that OMC had violated its

NPDES permit, was dismissed in part, for failure to

give the requisite 60 days notice under Section 505(b)-

(1)(A). The Attorney General did not appeal that ruling.

(App. A) Yet the Court of Appeals apparently believed

that, notwithstanding this tactical decision, it should get

Pe

the Attorney General into the pending litigation, regard-

less of the limitations stated in the Clean Water Act.

The Court of Appeals committed serious error in allow-

ing the Illinois Attorney General to bypass the remedy

created by Congress.

The right to intervene depends upon (1) the federal

government having brought suit (2) “to require com-

pliance with the standard, limitation or order” which

the citizen has alleged is being violated by the dis-

charger. A “standard, limitation or order” is specifically

defined for purposes of Section 505 as pertaining to

discharges of pollutants from point sources. 33 U.S.C.

§1365(f). The typical example of a discharge from a

point source is an outfall from a manufacturing facility.

DuPont v. Train, 430 U.S, 112, 114-15 (1977).

The relief specifically requested by the federal govern-

ment does not include a request that OMC further control

eixsting discharges; rather it seeks the removal of alleged

in-place pollutants, (which allegedly had resulted from

previous discharges by OMC) and the imposition of

penalties. After having met on numerous occasions with

counsel for U.S.EPA and OMC, Judge McGarr ruled

that the remedy sought was not one seeking to require

compliance with a discharge requirement. (App. C-4)

“. .. The government obviously elected to seek relief

only for past violations. .. .

Had Congress intended to grant intervention as of

right in all suits brought by the Administrator under

the Act, it could have so worded §$505(b)(1)(B).”

Id, The Court of Appeals “[a]dmitted [that] the federal

government seeks only an injunction to require dredging.

...? (App. A-19) But the Court of Appeals then stated:

Ne t

spill oe

“The complaint, however, atates that the injunctions

sought are designed to prevent further dontamination

of the bodies of water, and it leaves open the door

for the ceurt to grant such other and further relief

as it deems just and proper.”

The court erroneously stated that OMC was discharging

a dangerous amount of PCBs* and then opined “. . .

parties that are affectetl by this pollution should have a

right to mtervene to seek abatement even if the federal

government is principally concerned with past pollution.”

Id. (emphasis supplied). But Congress did not prohibit

separate citizen’s actions to require compliance. As point-

ed out by Judge McGarr, Congress could have written

the Act to allow intervention in all cases (in which case

it would likely have prohibited separate citizen actions).

Courts, however, have no power to rewrite a statute so

as to allow that which they believe “should” be the law.

E.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1977).

*The complaints alleged that OMC is still dischargi

PCB’s. The record shows, however, that OMC, IEPA

and U.S.EPA agreed on a plan by which OMC would

reduce its discharges and that OMC has implemented

this plan. (R2, Item 10, Exhibits 6,7; R2, Item 16). In

fact, OMC has no process water outfalls — its outfalls

discharged only noncontact cooling water and stormwater

runoff. (R2, Item 27, para. 6). The only “danger” even

alleged by the government is that certain sediments may

release PCBs and affect water quality. (R2, Item 1, pp.

6-7). The only “discharge” of PCBs apparently stems

from OMC’s intake water (which is used as non-contact

cooling water) and the presence of PCBs in rainfall

over Lake Michigan. F.g., Murphy, T.J. and Rzeszutks,

C.P., Precipitation Inputs Of PCBs To Lake Michigan,

J. Great Lakes Res. (Dec. 1977).

ey aie

Indeed, the legislative history of the Clean Water Act

clearly shows that Congress did not intend for “citizens”

to be participants, under Section 505, in cases such as

the pending case filed by the United States. The pending

case alleges an adverse affect upon water quality, but

specifies no promulgated water quality standards which

must be enforced. The prayer leaves it to the district

court to decide ultimately what is an appropriate water

quality standard: should the sediments be removed, and

if so, how much and in what manner? But Congress

made clear that Section 505 would not be the basis for

citizen’s resort to federal courts to establish acceptable

water quality levels. According to the Senate committee

which initially drafted the bill, “Section 505 will not

substitute a ‘common law’ or court developed definition

of water quality.” 2 Legis. History at 1706. The Court

of Appeals has done just what Congress feared — allowed

the Attorney General or any other “citizen”, to attempt

to persuade Judge McGarr as to what the ultimate

remedy should be.

‘The Court of Appeals erroneously relied on the

standard, boilerplate prayer for relief (“Such other relief

as the Court may deem just”) as “leaving the door open”

for Judge McGarr to order further abatement of OMC’s

alleged discharge. (App. A-19) If that remains the law,

then citizens may intervene in any government case under

the Clean Water Act. We believe the wiser course was

that chosen by Judge McGarr — that this general prayer

for relief was not sufficiently specific as to trigger a right

to intervene under §505(b)(1)(B). (App. C-4) This court

should accept this writ to uphold Judge McGarr’s com-

mon sense interpretation of this general boilerplate

phrase,

**%

aaliiie ls.

Intervention into the pending case should have been

decided on the intervention rules established by this

Court. F.R. Civ. P. 24(a)(2) and (b)(2). The indiscrimi-

nate holding of the Court of Appeals was not required

by Congress and unnecessarily broadens citizens access

to the federal courts; indeed, it would permit citizens to

sue to create new water quality standards. The Court of

Appeals issued what was essentially an advisory opinion

— it allowed the Attorney General to bring a claim

against OMC in federal court, even though he had aban-

doned the dismissal of his §505(a) claim on appeal.

Congress has already specified the conditions under which

an independent action could be brought by enacting Sec-

tion 505(b)(1). The court below was powerless to expand

the scope of the statute. Cf. Costle v. Pacific Legal

Foundation, ........ WD settee 100 S.Ct. 1095 (1980).

For these reasons, this Court should set aside tm

decision of the Seventh Circui there is a right for

citizens to intervene in the p federal case.

IV. THE COURT OF APPEALS COMMITTED SER1-

OUS OR ALLOWING THE INTERVENOR TO

CHOOSE’ BETWEEN MAINTAINING A SEPA-

RATE SUIT OR INTERVENING IN THE PEND-

ING CASE BROUGHT BY THE UNITED STATES.

The Court of Appeals held that the Attorney General

was entitled to intervene as of right pursuant to

§505(b)(1)(B).° It also stated that the Attorney General

had a choice of maintaining a separate common law of

nuisance action, or intervening. (App. A-20). This im-

*The Court of A ’ concept of ‘‘pollution’’ is in-

consistent with the detailed rules laid out in the Clean

Water Act. E£.g., DuPont v. Tram, 430 U.S. 112 (1977).

— 29 — t

%

credible disregard of the Congressional scheme must be

reviewed by this Court to preserve respect for the limita-

tion on citizen participation stated in the Act. Cf. Costle

v. Pacific Legal Foundation, ......... Rib: anias , 100 S.Ct.

1095 (1980) (construing the limitations contained in sec-

_ tion 402(a) of the Act, for requesting adjudicatory hear-

ings on NPDES permits).

The statute prohibits the courts and citizens from

electing to sue independently or intervening as of right

under $505. Indepen“ent citizen suits are prohibited by

Section 505(b)(1)(B) when federal or state government

is already “diligently prosecuting an action to require

compliance with the standard, limitation or order,” cited

by the citizen as being violated. 33 U.S.C. §1265(b) (1) (B);

-E.g., Stream Pollution Control Board v. United States

Steel Corp., 512 F.2d 1036 (7th Cir. 1975) (Stevens, J.).

But citizens may intervene ‘‘in such actions,’’ as a matter

of right. Citizen intervention under the act thus exists

only when a separate citizen “action is prohibited.

Section 505(b)(1)(B) focuses on the remedy being

sought by the state or federal overnment. Neither the

intervenor nor the court have authority to elect to sue

separately or intervene. Indeed, the statutory provision

is consistent with the rule that an intervenor takes the

ease as he finds it. Fuller v. Volk, 351 F.2d 323, 328 (3rd

Cir. 1965).

If Section 505(b)(1)(B) applies to the pending case,

the court is powerless to allow a separate proceeding

to continue. If there is no prohibition against a separate

citizen suit, then there is no right to intervene. The

judgment of the Court of Appeals allowing the Attorney

7%

site

General his choice of action should be set aside. It is a

gross departure from the statute which this Court should

correct.

CONCLUSION

For the foregoing reasons, Petitioner submits that the

Court should issue the Writ of Certiorari and review

Seventh Circuit.

Ricuarp J. Kissen

Tuomas H. DonoHor

Jerrrey C. Fort

Joanna C. New

Martin, Craic, CHESTER

& SoNNENSCHEIN

115 South LaSalle Street

Suite 2400

Chicago, Illinois 60603

(312) 368-9700

» the instant decision of the Court of Appeals for the

Respectfully submitted,

Ovursoarp Marine CoRPORA-

TION

By

One of its Attorneys

Rionarp J. PHELAN

MicHAEL Pope

RosEaNN OLIVER

PHELAN, Pore & JoHN

30 North LaSalle Street

Suite 3030

Chicago, Illinois 60602

Hvuexu B. THomas

Associate GeneraL CouNsEL

OvurTsoaRD MARINE

100 Sea-Horse Drive

Waukegan, Illinois 60085