Appendix — Outboard Marine Corp. v. Illinois

no 0-126

3n the

Supreme Court of the Gnited States

Ocroser Tzrm, 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.

For the Seventh Circuit

Ricuarp J. PHELAN Ricuarp J. Kisse.

Mionart Pors Tuomas H. Dononoe

Roszann OLIver Jerrrey C. Fort

Puetan, Pors & Joun Joanna C. New

North LaSalle Street Martin, Craic, Cuester &

ae 3030 SonNENSCHEIN

Chicago, Dlinois 60602 115 South LaSalle Street

Suite 2400

Chicago, Illinois 60603

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

Appendices to the Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Seventh Circuit

INDEX

PAGE

. Illinois v. Outboard Marine Corporation, Nos. 79-

1341, 79-1725 (7th Cir. March 28, 1980). .............. A-1

Unpublished order dated April 29, 1980 denying

rehearing in Illinois v. Outboard Marine Corpora-

tion, Nos, 79-1341, 79-1725 (7th Cir. April 29,

NE woleieDicsopapsnidesserssiivinsabbininansnipibnenscouininacmigoculbersds B-1

Unpublished memorandum opinion and order

dated May 29, 1979, United States v. Outboard

Marime Corporation v. Monsanto Company, N.D.

NN My NOMS csdalitih Gs cakes scanccsesosbecbsibrecoccaen C-1

. Unpublished memorandum opinion and order

dated February 28, 1979, Illinois v. Outboard

Marine Corporation, N.D. Ill, No. 78-C-3187. ...... D-1

IN

ma pion

In THE

Unitep States Court or APPEALS

For Tse Sevents Circuit

No. 79-1341

Prorte Or THe State Or Iuurvois,

Plawntiff-A ppellant,

vs.

OvtTsoarD Marine Corporation, Inc., a Delaware corpora-

tion,

Defendant-Appellee.

No. 79-1725

Untrep Srates Or America,

\ Plaintiff,

vs.

OvuTBoaRD Marine CoRPORATION,

Defendant and Third Party Plawtiff-Appellee, and

Monsanto ComMpany,

Third Party Defendant.

Appeal Of: Prorpte Or Tue Strate Or ILuINois,

Proposed Intervenor.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 78 C 3187 & 78 C 1004

Frank J. McGarr, Judge.

Aracuep November 26, 1979—Dercipep Marcu 28, 1980

Las

r+

— Ao

Before Swycert, Circuit Judge, Wispom, Senior Circuit

Judge,* and Tong, Circuit Judge.

Wispom, Senior Circuit Judge. The first of these two

consolidated appeals involves a question of federal com-

mon law: Does a state have a federal common law cause

of action for nuisance against an in-state pollution

source? We hold that it does have such a cause of action

to prevent pollution of interstate or navigable waters.

The second appeal concerns an attempt by the State

to intervene in a suit by the federal government against

the offending company. We hold that in the interest of

the people of Illinois the State has the right to intervene

in the federal suit.

~On August 10, 1978, the Attorney General of the State

of Illinois brought this action on behalf of the People

of Illinois in federal district court against Outboard

Marine Corporation (OMC), alleging that at least since

January 1, 1959, OMC had discharged highly toxic

polychlorinated biphenyls (PCBs) from its Waukegan,

Illinois manufacturing facility? into the North Ditch (a

tributary of Lake Michigan), Waukegan Harbor, and

Lake Michigan. The State alleged that the PCBs had

accumulated in the bottom sediments of the receiving

waters, causing contamination at levels that damaged

aquatic life, bird life, and water quality, threatened the

health and welfare of residents of Illinois, and impaired

*The Honorable John Minor Wisdom, Senior Circuit

Judge of the United States Court of Appeals for the

Fifth Circuit, is sitting by designation.

*PCBs are highly toxic chemical mixtures that are

heat and flame resistant. The complaint alleged that

hydraulic fluids used by OMC from 1959 until 1972 con-

tained the PCBs, and that these fluids were still drainin

into the receiving waters through OMC’s waste-water col-

lection and disposal system.

? The facility is located approximately 10 miles south

of the Wisconsin border. It manufacturers outboard mo-

tors and their component parts,

z

a

‘

h:

i

:

ave lee

the usefulness of the Lake as a public water supply and

place of recreation.’ The State sued under the federal

common law of nuisance and the Federal Water Pollu-

tion Control Act (FWPCA), 32 U.S.C. § 1251 et seg.

For good measure, the State added several pendent

claims based on Illinois law.* The complaint asked for an

injunction restraining OMC from further discharging

PCBs from OMC’s Waukegan facility; a mandatory in-

junction directing OMC to study removai and disposal

methods for the accumulated PCB-contaminated sedi-

ments; a mandatory injunction directing OMC to remove

and dispose of the PCB-contaminated sediments in the

North Ditch, Waukegan Harbor, and Lake Michigan;

and a similar injunction requiring removal of PCB-

contaminated soil. The complaint also asked for civil

penalties.

On October 2, 1978, OMC filed a motion to dismiss the

complaint. The court granted the motion on February 2,

1979. The district judge recognized that “there is indeed

federal jurisdiction over a claim based on the federal

common law of nuisance”. Taking an unnecessarily nar-

row view of Illinois v. Milwaukee, 1972, 406 U.S. 91,

92 S.Ct. 1385, 31 L.Ed.2d 712, however, the court held

that the federal common law count failed to state a

claim upon which relief could be granted because this

case “involves a controversy between two Illinois resi-

dents”. There was “no allegations of injury to or from

another state”. The court ruled that it had no jurisdic-

tion over the FWPCA claim because Illinois had not

given the required 60 days notice to the Administrator

or to the defendant. The State did not appeal this ruling.

*The complaint alleged that in some portions of

Waukegan Harbor and its tributaries PCBs currently

comprise as much as 25 percent of the bottom sediments.

*The state law counts are based on the Illinois Public

Nuisance Act, the Illinois Environmental Protection Act,

the Illinois common law of nuisance, and the [Illinois

common law of trespass.

7

pS yt ae

Finally, because the federal claims had been dismissed,

the court rejected pendent jurisdiction.

Meanwhile, on March 17, 1978, the United States filed

a complaint in federal district court against OMC, also

alleging PCB-contaminated discharges into the three

bodies of water. The action was brought under the

Refuse Act, 33 U.S.C. §$ 407, the FWPCA, and the fed-

eral common law of nuisance. The court was asked to

enjoin further contamination by requiring OMC to

dredge and safely dispose of the PCB-contaminated

sediments and to pay civil penalties. This suit was

assigned to the district judge who was handling the

other suit.’

On March 23, 1979, the Attorney General of Illinois

filed a motion for leave to intervene in the federal suit,

giving three reasons for intervention. (1) The State had

a statutory right to intervene under §$ 505(b)(1)(B) of

the Clean Water Act of 1977, 33 U.S.C. § 1365(b)(1)(B).

See Fed.R.Civ.P. 24(a)(1). (2) It had the right to inter-

vene because of its special interest in the litigation and

the inability of the United States to represent adequately

that interest. See Fed.R.Civ.P. 24(a)(2). (3) The State

should be permitted to intervene because its claim had

questions of law and fact in common with the federal

government’s contentions. See Fed.R.Civ.P. 24(b). On

May 29, 1979, the district judge denied the motion for

leave to intervene.®

The Attorney General appeals in both suits. The United

States filed an amicus brief in favor of the intervention.

*On October 10, 1978, the district judge ordered the two

eases consolidated for discovery. On November 16, 1978,

OMC filed a third party complaint against Monsanto,

the company manufacturing the hydraulic fluids for OMC.

‘ Although the United States did not oppose [llinois’s

intervention, OMC did. Interestingly, at one time OMC

contended that the federal suit should be dismissed be-

ad it did not join a necessary party, the State of

ois, ?

a

o-_ A-5 —

I,

Erie R.R. Co. v. Tompkins, 1938, 304 U.S. 64, 78, 58

S.Ct. 817, 82 L.Ed. 1188, held that there is no general fed-

eral common law. The same day the Supreme Court de-

cided Erie it laid the groundwork for a “specialized com-

mon law”.’ See Hinderlinder v. La Plata Riwer & Cherry

Creek Ditch Co., 1938, 304 U.S. 92, 58 S.Ct. 803, 82

L.Ed. 1202. Since that time courts have fashioned federal

eommon law “when there is an overriding federal in-

terest in the need for a uniform rule of decision or where

the controversy touches basic interests of federalism”.

Illinois v. Milwaukee, (1972), 406 U.S. 91, 105 n.6, 92 S.Ct.

1385, 31 L.Ed.2d 712. The doctrine has been applied to

areas of the law as diverse as obligations by or to the

'The term “specialized common law” was coined by

Judge Henry Friendly in his classic article on Frie and

federal common law. Friendly, Jn Praise of Erie—and of

the New Federal Common Law, 39 N.Y.U.L. Rev. 383,

405 (1964). For other general discussions of federal com-

mon law, see P. Bator, P. Mishkin, D. Shapiro, & H.

Wechsler, Hart and Wechsler’s The Federal Cowrts and

the Federal System 756-832 (2d ed. 1973); C. Wright, Law

of Federal Courts § 60 (3d ed. 1976); Hill, The Law-

Making Power of the Federal Courts: Constitutional Pre-

emption, 67 Colum. L. Rev. 1024 (1967); Mishkin, 7'’he

Variousness of “Federal Law”; Competence and Discre-

tion in the Choice of National and State Rules for Deci-

sion, 105 U. Pa. L. Rev. 797 (1957); Monaghan, The Su-

preme Court, 1974 Term—Foreward: Constitutional Com-

mon Law, 89 Harv. L. Rev. 1 (1975); Panel Discussion,

The Future of a Federal Common Law, 17 Ala. L. Rev.

10 (1964); Note, The Federal Common Law, 82 Harv. L.

Rev. 1512 (1969); Note, Rules of Decision in Nondiversity

Suits, 69 Yale L.J. 1428 (1960); Note, Federal Common

Law and Article III: A Jurisdictional Approach to Erie,

74 Yale L.J. 325 (1964); Comment, The Invalid Growth

of the New Federal Common Law Dictates the Need for

a Second Erie, 9 Hous. L, Rev. 329 (1971).

7s

saddle

United States,® suits on labor contracts affecting com-

merce,’ unfair competition in or affecting interstate com-

merce,” and regulation of the activities of interstate

carriers." In 1972 the Court formulated a federal com-

mon law of nuisance.” Illinois v. Milwaukee, 406 U.S.

* See, e.g., Priebe & Sons, Inc. v. United States, 1947,

332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32; United States

v. County of Allegheny, 1944, 322 U.S. 174, 64 S.Ct. 908,

88 L.Ed. 1209; Clearfield Trust Co. v. United States, 1943,

318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. See generally

Friendly, swpra note 7, at 408-11.

* See, e.g., Textile Workers v. Lincoln Mills, 1957, 353

U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.

° See, e.g., Huber Banking Co. v. Stroehmann Bros.

Co., 2 Cir. 1958, 252 F.2d 945, 952-53, cert. denied, 1958,

358 U.S. 829, 79 S.Ct. 50, 3 L.Ed.2d 69; Dad’s Root

Beer Co. v. Doe’s Beverages, Inc., 2 Cir. 1951, 193 F.2d

77; Stauffer v. Exley, 9 Cir. 1950, 184 F.2d 962.

See, e.g., Francis v. Southern Pacific Co., 1948, 333

U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798.

*In the sequel to the Supreme Court’s Illinois v.

Milwaukee case this Court stated tiie elements of such a

claim: “The elements of a claim based on the federal

common law of nuisance are simply that the defendant

is carrying on an activity that is causing an injury or

significant threat of injury to some cognizable interest of

the complainant.” Illinois v. Milwaukee, 7 Cir. 1979, 599

F.2d 151, 165.

For a discussion of the federal common law of nuisance

see Campbell, Illinois v. City of Milwaukee: Federal

Question Jurisdiction Through Federal Common Law,

3 Envt’l Law 267 (1973); Fourth Circuit Review—F ederal

Common Law for Water Pollution Nuisance Abatement

Confined to Interstate Controversies, 34 Wash. & Lee L.

Rev. 590 (1977); Note, 26 Emory L.J. 433 (1977): Note,

Federal Common Law Remedies for the Abatement of

Water Pollution, 5 Fordham Urb. L.J. 549 (1977); Note,

Federal Common Law and Interstate Pollution, 85 Harv.

L. Rev. 1439 (1972); Note, 50 Tex. L. Rev. 183 (1971);

te ee ee ee

ow A.7 —

91. The decision in the instant case turns on the broad

policy considerations expressed in Illinois v. Milwaukee.

The nation has a basic overriding federal interest in

interstate and navigable waters and in developing a

uniform program of protecting these national resources

from pollution. The Federal Water Pollution Control Act

made this interest explicit. The federal common law of

nuisance fills the interstices in the Act.”

There is nothing in the Supreme Court’s reasoning in

Illinois v. Milwaukee to indicate that it attached any

weight to the fact that the pollution came from an out-

of-state source. The Court declined to take original

jurisdiction but held that the district court had jurisdic-

tion because, under 28 U.S.C. § 1331, the case was one

that “arises under the Constitution, laws, or treaties of

the United States”. The Court phrased the question:

The question is whether pollution of interstate or

navigable waters creates actions arising under the

“laws” of the United States within the meaning of

§ 1331(a). We hold that it does; and we also hold

that § 1331(a) includes suits brought by a State.

406 U.S. at 99. “Section 1331 jurisdiction will support

claims founded on federal common laws as well as those

of a statutory origin.” Jd. at 100. Writing for a un-

#2 (Continued)

Note, 13 Wake Forest L. Rev. 246 (1977); Note, 1972

Wis. L. Rev. 597; Comment, 49 Denver L.J. 609 (1973);

Comment, 77 Dick. L. Rev. 451 (1972); Comment, The

Expansion of Federal Common Law and Federal. Ques-

tion Jurisdiction to Interstate PoWution, 10 Hous. L. Rev.

121 (1972); Comment, 7 Suffolk L. Rev. 790 (1973);

Comment, 1977 Wash. U. L.Q. 164.

Tn the sequel to the Supreme Court’s Illinois v. Mil-

waukee case this Court held that the 1972 and 1977 amend-

ments to the FWPCA do not preempt the federal com-

mon law of nuisance. Illinois v. Milwaukee, 7 Cir. 1979,

599 F.2d 151, 162-63.

°%

win) BD ase

animous Court, Mr. Justice Douglas stated, “When we

deal with air and water in their ambient or interstate

aspects, there is a federal common law... .” Id. at 103.

Furthermore, the Supreme Court repeatedly expressed

its intention to extend the application of federal common

law to public nuisances caused by the pollution of either

“interstate or navigable waters.” Id. at 99, 102, 104.

In view of the obvious interstate character of Lake

Michigan, we are not so bold as to assume that Mr.

Justice Douglas might have been careless in his choice

of words and that other members of the Court failed to

notice implications of the term “navigable waters”. In

addition, so the Court stated, federal common law would

apply regardless of the jurisdictional amount, id. at 98,

or of the ‘‘character’’ of the parties, id. at 105 n.6.

“Where there is an overriding federal interest in the

need for a uniform rule of decision or where the con-

troversy touches basic interests of federalism, we have

fashioned federal common law.” Jd. The Court noted the

existence of the Federal Water Pollution Control Act

and was aware of the interstices and deficiencies in

federal statutes.

It may happen that new federal laws and new

federal regulations may in time preempt the field of

federal 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 . . . There

are no fixed rules that govern; these be equity suits

in which the informed judgment of the chancellor

will largely govern.

Id. at 107.

The Court’s use of the term “navigable waters” sig-

nificantly suggests the breadth of the holding,“ for

* The legislative history of the 1972 amendments to the

FWPCA demonstrates that Congress intended the term

“navigable waters” to be given an expansive interpreta-

a= A.9 —x

that term includes both the territorial seas and purely

intrastate waters having no necessary interstate impact.

The Federal Water Pollution Control Act applies to ‘‘in-

terstate or navigable waters”, and this Court has re-

cently noted that “[i]n applying the federal common

* (Continued)

tion: “The conferees fully intend that the term ‘navigable

waters’ be given the broadest possible constitutional

interpretation unencumbered by agency determinations

which have been made or may be made for administrative

purposes.” S. Rep. No. 1236, 92d Cong., 2d Sess. 144,

reprinted in [1972] U.S. Code Cong. & Ad. News 3776,

3822. Judge Butzner, dissenting in Committee for the

Consideration of the Jones Falls Sewerage System v.

i, 4 Cir. 1976, 539 F.2d 1006, 1011, emphasized the ©

point:

The legislative history [of the Water Pollution Act]

discloses that Congress intended the term ‘navigable

waters” to “be given the broadest possible constitu-

tional interpretation. . . .” Referring to this history,

the Environmental Protection Agency has interpreted

the statutory definition to include “tributaries of

navigable waters of the United States.”

The Environmental Protection Agency provides the

following definition for “navigable waters”:

(t) ‘‘Navigable waters’’ means ‘‘waters of the Uni-

ted States, including the territorial seas.’’ This term

includes : :

(1) All waters which are currently used, were

used in the past, or may be susceptible to use in

interstate or foreign commerce, Ey all waters

which are subject to the ebb and flow of the tide;

( 2) Interstate waters, including interstate wet-

ands;

(3) All other waters such as intrastate lakes,

rivers, streams (including intermittent streams), mud-

flats, sandflats, and wetlands, the use, degradation

or destruction of which would affect or could affect

interstate or foreign commerce including any such

waters;

*.

— A-10—

law of nuisance in a water pollution case, a court should

not ignore the Act but should look to its policies and

principles for guidance”. Illinois v. Milwaukee, 7 Cir.

1979, 599 F.2d 151, 164; accord, Committee for the Con-

sideration of the Jones Falls Sewerage Sys. v. Train, 4

* (Continued)

(i) Which are or could be used by interstate or

foreign travelers for recreational or other purposes;

(ii) From which fish or shellfish are or could be

taken and sold in interstate or foreign commerce;

(iii) Which are used or could be used for in-

dustrial purposes by industries in interstate com-

merce;

“~ (4) All impoundments of waters otherwise de-

fined as navigable waters under this paragraph;

(5) Tributaries of waters identified in paragraphs

((t)(1)-(4) of this section, including adjacent wet-

lands; and

(6) Wetlands adjacent to waters identified in

paragraphs (t)(1)-(5) of this section (“Wetlands”

means those areas that are inundated or saturated

by surface or ground water at a frequency and dura-

tion sufficient to support, and that under normal cir-

cumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil condi-

tions. Wetlands nerally included playa lakes,

swamps, marshes, bogs, and similar areas such as

sloughs, prairie potholes, wet meadows, prairie river

overflows, mudflats, and natural ponds); provided

that waste treatment systems (other than cooling

ponds meeting the criteria of this paragraph) are

not waters of the United States. [Emphasis in

original].

Navigable waters include: a non-navigable tributary of a

navigable stream (United States v. Ashland Oil & Transp.

Co., 6 Cir. 1976, 504 F.2d 1317); non-tidal mangrove

a (P.F.Z. Properties, Inc. v. Train, D.D.C. 1975,

393 F.Supp. 1370); and non-navigable rea canals

(United States v. Holland, M.D. Fla. 1974, 373 F.Supp.

665)

— 14 —

Cir. 1976, 539 F.2d 1006, 1013 (Butzner, J., dissenting).

There is no language in the Supreme Court’s opinion to

suggest that the predicate for the decision is one state’s

adversely affecting the environment or ecology of an-

other. That sort of extraterritorial effect may often occur

when an interstate body of water is polluted, but the

Court’s express language seems to base the holding on the

national interest in “interstate or navigable waters”.

States have, of course, an interest in waters within their

borders, but “it is federal, not state, law that in the end

controls the pollution of interstate or navigable waters”.

Id. at 102. “Thus, the Supreme Court in Illinois v. Mi-

waukee intended to do more than merely provide a forum

for controversies between states”. Note, Federal Common

Law Remedies for the Abatement of Water Pollution, 5

Fordham Urb. L.J. 549, 557 (1977). Basically, the Su-

preme Court established, under federal common law, a

right in tort for the pollution of interstate and navigable

waters.

Pollution of any large lake or long river body of water

has, of course, obvious interstate effects. Fish swim. As

the Supreme Court pointed out, the “demands for apply-

ing federal law are present 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. But the term “interstate

or navigable waters” encompasses all federal waters, even

tributaries of intrastate navigable waters. (Emphasis

added). Federal concern is not just in navigability but in

the purity and quality of the waters. This is reflected in

the expanded concept of “navigable waters”. It is ex-

plicit in the goal of the 1972 Amendments “to restore

and maintain the chemical, physical, and biological in-

tegrity of the Nation’s waters”. 33 U.S.C. § 1251(a).

States too have a stake in clean water. It is in keeping

therefore with the national program of protecting fed-

eral waters for the states to be allowed to sue one who

has committed the federal tort of polluting federal waters

18 See footnote 14.

— A-12 —

within the state or on which the state borders. The ap-’

plicable law, however, is federal and it should be uni-

form.” The following provisions of the 1972 amend-

ments to the Federal Water Pollution Control Act show

the national policy favoring uniformity: 33 U.S.C. § 1241

(a) (establishing national goals for the elimination of

pollution); § 1316(c) (allowing state enforcement if its

standards comply with federal regulation): § 1319(a) (2)

(allowing the Administrator to enforce pollution lim-

itations if a state defaults); § 1370 (providing that no

state standard may be less stringent than the federal

regulations).

Two courts of appeals have recognized that the fed-

eral common law gave rise to a cause of action on the

facts presented in Illinois v. Milwaukee, but concluded that

the federal common law should not be applied to in-

trastate pollution of navigable waters. Reserve Mining

Co. v. Environmental Protection Agency, 8 Cir. 1975, 514

F.2d 492; Committee for the Consideration of the Jones

Falls Sewerage Sys. v. Train, 4 Cir. 1976. 539 F.2d 1006.

In Reserve Mining, the court construed Jllinois v. Mil-

waukee as applying only to instances when the pollu-

tion source of one state harmed the environment of an-

* We interpret the Supreme Court’s discussion of uni-

formity in Illinois v. Milwaukee, 406 U.S. at 105 n.6, to

envision a uniform floor. Obviously, a state’s pollution con-

trol effort in interstate waters could be hampered by an-

other state’s lax pollution regulations. Development of a

federal common law of nuisance to enforce certain stan-

dards can help alleviate this problem. If a state wants to

undertake more stringent pollution control than that of-

fered by federal statutes or common law, it can look to

its own statutes and common law. The FWPCA makes

clear that Congress does not intend to preempt a state’s

efforts at more stringent pollution control. 33 U.S.C.

§ 1370. See Illinois v. Milwaukee, 7 Cir. 1979, 599 F.2d

151, 162; United States Steel Corp. v. Tram, 7 Cir. 1977,

556 F.2d 822, 835-36, 837-38.

pay."

other. The court found that the evidence showed that

the polluted air in Minnesota villages was affected only

by the waste emanating from Minnesota; there were no

extraterritorial pollutive effects. Accordingly, the court

rejected the federal common law nuisance action to pre-

vent the air pollution.

The Fourth Circuit reached a similar result in Jones

Falls. There a group of Maryland residents living near

Jones Falls sought to enjoin the grant of new sewerage

hookups to the existing Baltimore sewerage system

which was already dumping a substantial amount of

raw sewerage into Jones Falls. Jones Falls is an in-

trastate navigable waterway. The court refused to apply

federal common law since there was no interstate con-

troversy. In a strong dissent, id. at 1010 (Butzner, J.

dissenting), Judge John Butzner, relying on Illinois vy.

Milwaukee, urged that the national interest in keeping

all navigable waters clean gave rise to a federal common

law action of nuisance enforceable by a private citizen,

as contemplated by the 1972 amendments. The dissent

also reasoned that the protection of such interstate

resources as Chesapeake Bay could best be achieved. by

preventing the discharge of pollutants inw tributaries,

whether intrastate or interstate navigable waters.

. Those two decisions are distinguishable in that in each

case the court found that the pollution had only an in-

trastate effect. Here, of course, the four states bordering

on Lake Michigan are all affected, although only Illinois

has sued OMC. But we do not base our decision on this

distinction. 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 ex-

plicitly recognized a federal common law action to abate

pollution in “interstate or navigable waters”. There is

no basis for putting a gloss on the Supreme Court

holding that would restrict its application to situations

in which one state complains of damages to its environ-

ment or ecology by a pollution source in another state.

at ee

Although we have never decided whether such a suit

can be brought, we did come to the edge of the question

in Stream Pollution Control Board v. United States Steet

Corp., 7 Cir. 1975, 512 F.2d 1036. There an Indiana ad-

ministrative body ‘attempted to use federal common law

to abate pollution of the Grand Calumet River, a

navigable stream and tributary of Lake Michigan. We

refused to deeide whether the complaint stated a cause

of action for which relief could be granted, but did hold

that “the complaint raises substantial questions which

only a federal court may finally answer”. Jd. at 1040. We

commentec that “[s]urely enough has been alleged to

give the district court jurisdiction to decide whether the

Board is entitled to some relief as a matter of federal

common law”. Id.

In another case a district court allowed Dlinois and

the United States jointly to maintain a federal nuisance

action against United States Steel Corporation, restrain-

ing it from discharging wastes into Lake Michigan from

its Waukegan, Illinois plant. United States ex rel. Scott v.

United States Steel Corp., N.D. Ill. 1973, 356 F.Supp.

556. The complaint had no allegation of an out-of-state

effect. The court held that the 1972 amendments of the

Federal Water Pollution Control Act did not oust the

federal courts from their federal common law jurisdic-

tion; they amplify and supplement existing remedies.

The court noted the federal government’s “undoubted

right to intervene to protect the navigable waters from

pollution” and the “obvious interest” of Illinois in the

“purity and recreational value of Lake Michigan”. Id. at

558.

In United States v. Ira S. Bushey & Sons, Inc., D.Vt.

1972, 346 F.Supp. 145, aff. mem. 2 Cir. 1973, 487 F.2d

1393, cert. denied, 1974, 417 U.S 976, 94 S.Ct. 3182, 41

L.Ed.2d 1146, the federal district court refused to dis-

miss the federal government’s claim grounded in the

federal common law of nuisance though its complaint

asserted no interstate effect. The court said that the

— A-15 —

United States may sue to protect the “national interest

in the quality of air and water in their ambient or in-

terstate aspects”. Id.. at 149.

In this suit we again have pollution of Lake Michigan.

We again have pollution of an interstate body of water,

fed by many tributaries. One state’s lax pollution stand-

ards should not prevent vigorous efforts by the federal

government and by other states to prevent pollution of

Lake Michigan. Forbidding Illinois to invoke federal

nuisance law would create the anomaly that three states

bordering Lake Michigan may sue to prevent pollution

emanating from Illinois, but Illinois itself may not bring

such an action.

There are several practical reasons for giving Illinois

the right to sue in federal court. First, let us assume

that there are two plants, one on each side of the Illinois-

Wisconsin border, each pouring the same type of pollu-

tion into Lake Michigan. OMC’s contention would re-

quire Illinois to file one suit in Dllinois court and one

in federal court. Each polluter could argue that most or

all of the pollution harming Illinois is coming from the

other plant, and therefore that Illinois should not be

granted an injunction. Bringing a single action against

both defendants in one forum would prevent them from

hiding behind each other. Second, allowing suit here

could promote economy of judicial administration as

well as uniformity in result. Aside from allowing Illinois

to sue in-state and out-of-state polluters in the same suit,

it would allow a state and the federal government to sue

together to prevent pollution in that state. In this con-

troversy, we have Illinois’s suit in federal court, a sub-

sequent federal government suit in federal court, a suit

by OMC against the Environmental Protection Agency

to decide what remedial steps, if any, should be taken to

remedy sediments in Waukegan Harbor and the North

and’ an Illinois administrative proceeding initi-

ated by OMC concerning the appropriate terms and

conditions for a permit for the Waukegan facility. Ad-

be

;

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F

— A-1§ —

ditionally, Tlinois could file suit in state court against

OMC under its statutes and the common law of nuisance.

Permitting Illinois to sue OMC in federal court un-

der the federal common law of nuisance would allow

consolidation of the suits brought by the United States

and by Illinois (and possibly the suits brought, by OMC),

thus conserving scarce judicial resources and ensuring

a single result. Multiple suits may lead to contradictory

results, thus necessitating more litigation to sort out

all of the inconsistencies. Third, permitting a state to

sue in federal court could ensure that competition for

industry between states does not prevent vigorous state

enforcement against pollution. If a state develops a

strong state common law of nuisance and enforces it

vigorously, industry may flee to another state. If, on

the other hand, a state sues in federal court and aids

development of a comprehensive federal law of nuisance,

the law can: be enforced against polluters no matter

where the pollution originates.

National uniformity of pollution standards finds par-

tial legislative expression in the 1972 amendments, which

provide for promulgation of pollution guidelines and re-

quire federal approval of state discharge permits. There

is no serious conflict, however, between the states and

the federal government. Consistent with the amendments’

avowed purpose of preserving and protecting the primary

responsibilities of the states, see 33 U.S.C. § 1251(b),

the states may impose more restrictive standards than

those imposed by the federal government.

We conclude, based on Illinois v. Milwaukee and the

Federal Water Pollution Control Act, that there is an

overriding federal interest in preserving, free of pollu-

tion, our interstate and navigable waters. When a pollu-

tion controversy arises, it is immaterial whether there

is a showing of extraterritorial pollution effects. The

issue is whether the dispute is a matter of federal con-

cern. When it is, as in this case, federal courts should

be accessible. The effect of the federal common law of

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nuisance is to fill the statutory interstices and to provide

uniformity in controlling water pollution in either inter-

state or navigable waters or the United States. There is

no strain on federalism. The State of Illinois and the

federal government see eye to eye and in United States

v. OMC are attempting to work shoulder to shoulder to

their mutual interest in clean water.

Il.

Illinois urges three grounds for intervention in the

suit by the United States against OMC, only the first of

which we need consider. Fed.R.Civ.P. 24(a)(1) allows

intervention “when a statute of the United States confers

an unconditional right to intervene”. See generally C.

Wright & A. Miller, 7A Federal Practice and Procedure

§ 1906 (1972).

The FWPCA provides for intervention in the follow-

ing circumstance:

(b) No action may be commenced—

(1) under subsection (a)(1) of this section—

(b) if the Administrator or State has

commenced and is diligently prosecuting a

civil or criminal action in a court of the

United States, or a State to require com-

' plianee with the standard, limitation, or

order, but in any such action in a court

of the United States any citizen may in-

tervene as a matter of right.

33 U.S.C. § 1365(b)(1)(B). A “citizen” is “a person or

persons having an interest which is or may be adversely

effected.” Id. § 1365(g¢). A “person” includes a state. Id.

§ 1362(5); see Massachusetts v. United States Veterans

Administration, 1 Cir. 1976, 541 F.2d 119, 121 n.1. The

terms “standard” and “limitation” are defined in 4 1365;

these include “effective July 1, 1973, an unlawful act

under subsection (a) of section 1131 of [the FWPCA]”. 33

U.S.C. § 1365(f) (1). Section 1311(a) provides: “Except as

— A-17 —

7+

— A-18 —

in compliance with this section and sections 1312, 1316,

1317, 1328, 1372, and 1344 of this Act, the discharge of

any pollutant by any person shall be unlawful.” Count IT

of the complaint alleges that “OMC’s continuing dis-

charge of PCB was not in compliance with Section 402

of the [Clean Water] Act, 33 U.S.C. 1342, and therefore

violated the prohibition of Section 301(a) of the [Clean

Water] Act, 33 U.S.C. 1311(a).”

wr

OMC argues, first, that there can be no violation ab-

sent promulgation of an effluent standard or limitation

by E.P.A. and specific inclusion of such standard or lim-

itation in a permit. Stream Pollution Control Bd. v.

United States Steel Corp., 7 Cir. 1975, 512 F.2d 1036,

1042. That case did not involve an alleged violation of

§ 402; it involved a violation of the federal common law

of nuisance and of § 1311, which provides a timetable

for the promulgation of various effluent limitations.

Because the deadline had not passed in that case, the

intervenors’ only statutory argument was that the steel

facility could not discharge any pollution until the stand-

ard had been promulgated. The Court rejected that argu-

ment, stating tuat the defendant was in compliance with

the statute unless it violated a statutory provision, and

that it could not violate a standard before the standard

was established. The express congressional goal of step-

by-step reduction of pollution makes it unlikely and il-

logical that Congress intended to prohibit all pollution

until the standard were fixed. The present suit does not

charge a violation of any standards; instead, it involves

a violation of a permit issued by the Environmental Pro-

tection Agency. This Court has held that promulgation

of a separate effluent standard or limitation is not a pre-

requisite to enforcement of a permit under § 1342, “The

obligations imposed on an individual discharger by the

permit are enforceable according to the statutory time-

table whether or not they are based on previously issued

guidelines.” United States Steel Corp. v. Train, 7 Cir.

1977, 556 F.2d 822, 854-55,

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dak it sin

Second, OMC cites a recent case in which this Court

held that the citizen suit provision “does not provide for

suits against parties alleged to have violated an effluent

standard or limitation in the past or for recovery of

”, Evansville v. Kentucky Liquid Recycling, Inc.,

7 Cir. 1979, 604 F.2d 1008, 1014. This suit alleges cur-

rent PCB pollution. Admittedly, the federal govern-

ment seeks only an injunction to require dredging because

it has instituted administrative proceedings to deal

with present PCB pollution by OMC. The complaint,

however, states that the injunctions sought are designed

to prevent further contamination of the bodies of water,

and it leaves the door open for the court to grant “such

other and further relief as it deems just and proper”.

Besides, once the federal government asserts that PCB

is a dangerous substance and that OMC is currently dis-

charging a dangerous amount of PCBs, parties that are

affected by this pollution should have a right to intervene

to seek abatement even if the federal government is

principally concerned with past pollution. Evansville

does not forbid intervention to halt continuing or future

violations.

The right of the State of Illinois to intervene is both

practical and desirable. Congress made clear in the

FWPCA that the states have a vital role in the elimina-

tion of pollution: “It is the policy of the Congress to

recognize, preserve, and protect the primary responsi-

bilities and rights of States to prevent, reduce, and

eliminate pollution.” 33 U.S.C. § 1251(b). The Tllinois

Environmental Protection Agency has been given the

power to issue permits under § 1342, the section at issue

in this case. That agency must also certify approval or

waive any objection before the dredging requested by

the federal government can take place. Id. § 1341; see

Mimmesota v. Hoffman, 8 Cir. 1976, 543 F.2d 1198, 1204.

State law requires permits for dredging, see Ill. Rev.

Stat. ch. 19, § 65, and for water pollution control devices,

see Ill. Rev. Stat. ch. 11144, $§ 1012(b) & 1039. On In-

tervention of Illinois, the court will be able to consider

~

— A-20 —

interests and views of the State, and perhaps simplify

and shorten subsequent state procedures.

Because we hold that the FWPCA allows intervention

of right, we need not consider whether Illinois has a

right to intervene because of its special interest, see Fed.

R. Civ. P. 24(a)(2), or whether permissive intervention

is proper, see Fed. R. Civ. P. 24(b).

Il.

Tilinois asked to intervene in the federal suit after its

own suit was dismissed. On oral argument its attorney

was unsure whether it would want to remain in the

federal suit if its suit was revived. The choice is of

course up to Illinois. If both suits are pursued, we leave

to the sound discretion of the district court the decision

whether the actions should be consolidated.

These cases are Reversep and REMANDED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

>

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-—B-1—

UNITED STATES COURT OF APPEALS

For the Seventh Cireuit

Chicago, Illinois 60604

April 29, 1980.

Before

Hon. Lurner M. Swycert, Cireuit Judge*

Hon. Jonn Minor Wispom, Senior Circuit Judge ©

Hon. Pamir W. Tons, Circuit Judge

No. 79-1341

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

vs.

OUTBOARD MARINE CORPORATION, INC.,

a Delaware corporation,

Defendant-A ppellee.

No. 79-1725

UNITED STATES OF AMERICA,

Plaintiff,

vs.

OUTBOARD MARINE CORPORATION,

Defendant and Third-Party

Plaintiff-Appellee and

MONSANTO COMPANY,

Third Party Defendant.

Appeal Of: PEOPLE OF THE STATE

OF ILLINOIS,

Proposed Intervenor.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 78-C-3187 and 78-C-1004

Frank J. MoGarr, Judge.

*The Honorable John Minor Wisdom, Senior Circuit

J a of the United States Court of Appeals for the

Fifth Circuit, is sitting by designation. Judge Wisdom did

vet participate in the vote on the petition for rehearing

..

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as

was! 353 ans

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause by defendant-appellee Outboard Marine Corpora-

tion, no judge in active service has requested a vote there-

on, and all of the judges on the original panel have voted

to deny a rehearing.

In connection with the court’s consideration of the peti-

tion for rehearing and suggestion for rehearing in banc,

the panel requested that the other active members of the

court vote on the question of whether they wished a re-

hearing in banc on the matter of the inconsistency between

the opinion of the panel and the opinions of the Fourth

and Eight Circuits in Reserve Miming Co. v. Environmen-

tal Protection Agency and Committee for the Considera-

tion of the Jones Falls Sewerage Sys. v. Train, No judge

voted in favor of rehearing in banc. Accordingly, the opin-

ion issued March 28, 1980, is amended by inserting an

asterisk at the end of the 21st line on page 12 and adding

the following footnote on that page:

In connection with the.¢ourt’s consideration of the

petition for rehearing. and suggestion for rehearing

im banc, the above opinion was circulated among all

judges of this court in regular active service. No

judge favored a rehearing in banc on the matter of

the conflict between the reasoning of this opinion

and the reasoning of the Fourth and Eighth Circuits

in the Jones Falls and Reserve Miming cases.

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED.

- Sag

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ii...

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION ‘

THE UNITED STATES OF AMERICA,

Plaintiff,

vs.

OUTBOARD MARINE CORPORATION,

Defendant.

No. 78 C 1004

MEMORANDUM OPINION AND ORDER

This action was brought by the United States Attorney

(hereinafter, ‘‘government’’) on behalf of the Environ-

mental Protection Agency. The People of the State of T'-

linois (hereinafter, ‘‘state’”) have filed a motion seeking

leave to intervene. For the reasons that follow, the state’s

motion is denied.

The government’s complaint, filed March 17, 1978, al-

leges that the defendant, Outboard Marine Corporation

(hereinafter, ‘‘OMC’’), discharged polychlorinated bi-

phenyl (‘‘PCB’’) into Waukegan Harbor, Lake Michigan,

and the North Ditch, a tributary ditch of Lake Michigan.

This discharge has allegedly contaminated the bottom sedi-

ments of those waters. The government seeks: 1) an order

requiring OMC to dredge and dispose of the contaminated

sediments in the North Ditch; 2) an order requiring OMC

to conduct a study of the safest way to remove and dis-

pose of the contaminated sediments in Waukegan Harbor

and Lake Michigan, and thereafter to remove and dispose

of those sediments; 3) civil penalties; 4) the costs of this

action; and, 5) such other relief as the court deems proper.

In June, 1978, OMC filed a motion to dismiss, which was

denied. See United States v. Outboard Marine Corp., No.

78 C 1004 (N.D. Ill. Oct. 4, 1978) (Memorandum Opinion

and Order). In August, 1978, the State ofMlinois brought

an action against OMC, alleging basically the same facts

— 0-2 —

as has the government, but seeking broader relief, e.g.,

an injunction prohibiting further discharges. The state’s

complaint was dismissed. See People of the State of Ilh-

nois v. Outboard Marine Corp., No. 78 C 3187 (N.D. Il.

Feb. 28, 1979) (Memorandum Opinion and Order), appeal

docketed, No. 79-1341 (7th Cir. March 30, 1979). The state

then filed this motion to intervene, asserting intervention

as of right, and, alternatively, permissive intervention.

An analysis of the state’s arguments follows.

The state first asserts a right to intervene pursuant to

Rule 24(a)(1), Fed.R.Civ.P., which provides, ‘‘ Upon time-

ly application anyone shall be permitted to intervene in

an action: 1) when a statute of the United States confers

an unconditional right to intervene... .’’ The state relies

on §505(b)(1)(B) of the Federal Water Pollution Con-

trol Act (hereinafter, ‘‘FWPCA’’), 33 U.S.C. §1365(b)

(1)(B) (1976), as its statutory basis for intervention as

of right. That section provides:

No action may be commenced—

** # @

(B) if the Administrator or State has commenced

and is diligently prosecuting a civil or criminal action

in a court of the United States, or a State to require

compliance with the standard, limitation, or order, but

in any such action in a court of the United States

any citizen may intervene as a matter of right.

33 U.S.C. §1365(b)(1)(B) (1976).

Section 505(f) of the FWPCA defines ‘‘effluent stan-

dard or limitation:’’

For purposes of this section, the term ‘‘effluent stan-

dard or limitation under this chapter’’ means (1) ef-

fective July 1, 1973, an unlawful act under subsection

(a) of section 1311 of this title; (2) an effluent limi-

tation or other limitation under section 1311 or 1312

of this title; (3) standard of performance under sec-

tion 1316 of this title; (4) prohibition, effluent stan-

dard or pretreatment standards under section 1317

of this title; (5) certification under section 1341 of

pea, 5. an

this title; or (6) a permit or condition thereof issued

under section 1342 of this title, which is in effect

under this chapter (including a requirement applica-

ble by reason of section 1323 of this title).

33 U.S.C. §1365(f) (1976).

The government’s complaint alleges violations of sec-

tions 1311 and 1342, Thus, violations of a standard or limi-

tation are at issue in this suit. The question here, how-

ever, is whether the government’s action is one to ‘‘re-

quire compliance’’ with a standard, limitation, or order.

In other words, does the phrase, ‘‘require compliance’’

embrace relief redressing past violations or does it refer

only to prospective relief?

As far as this court can determine, this is a case of

first impression. There appear to be no cases directly on

point; nor is the Act’s legislative history helpful.

The state contends that this is an action ‘‘to require

compliance’’ by arguing that the imposition of civil penal-

ties is a way of enforcing, and thereby requiring com-

pliance with, the standard, limitation, or order. The state

also argues that an order to remove and dispose of the

PCB-contaminated sediments will assure future compliance

because it is clear that OMC will remain liable for any

future discharges. The court rejects both of these argu-

ments.

Compliance means conformance. Webster’s Third New

International Dictionary 465 (1963), To require is to

demand or insist upon. Jd. at 1929. Thus to require com-

pliance with the standard, limitation, or order is to de-

mand that discharges conform with the norms specified

by the FWPCA. This court does not agree that the im-

position of civil penalties or an order to remove contami-

nated sediments is a way to demand that OMC conform

with the discharge specifications of the Act. Indeed, civil

penalties and the removal of the sediments may deter any

future unlawful discharge; hence, they encourage com-

pliance. Encouraging compliance, however, is not requiring

compliance,

*.%

sy

The state also argues that the government’s prayer for

such other relief as the court deems proper includes the

possibility of an order enjoining future discharges of con-

taminants. The court rejects this argument. The govern-

ment obviously elected to seek relief only for past viola-

tions. The insertion of this standard language in the

prayer for relief is insufficient to convert this action into

one seeking to require compliance with the discharge stan-

dards of the Act.

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). Given the spe-

cific language that Congress used, it is apparent that

Congress intended to grant intervention as of right only

in suits brought to require compliance. This court holds

that an action to redress past violations is not one to re-

quire compliance. Accordingly, the state has no statutory

right to intervene in this case.

The state’s second basis for intervention as of right is

Rule 24(a)(2), Fed.R.Civ.P., which grants intervention

of right ‘‘when the applicant claims an interest relating

to the property . . . which is the subject of the action and

he is so situated that the disposition of the action may as

a practical matter impair or impede his ability to protect

that interest, unless the applicant’s interest is adequately

represented by existing parties.’’ To intervene of right

under this rule, the state must meet all of these conditions.

Reedsburg Bank v. Apollo, 508 F.2d 995, 997-98 (7th Cir.

1975). The inquiry here can begin with the adequacy of

representation by the government.

The burden of showing inadequacy of representation

rests on the state. Trbovich v. United Mine Workers, 404

U.S. 528, 538 n, 10 (1972). Although this burden ‘‘should

be treated as minimal’’ id., it must still be met. ‘‘Repre-

sentation is adequate if no collusion is shown between the

representative and an opposing party, if the representa-

tive does not have or represent an interest adverse to the

proposed intervenor and if the representative does not

—_ C5 —

fail in the fulfillment of his duty.’’ United States v. Board

of School Commissioners, 466 F.2d 573, 575 (7th Cir.

1972), cert, dented sub nom. Citizens of Indianapolis for

Quality Schools, Inc. v. United States, 410 U.S. 909 (1973).

The state has not shown any collusion between the

government and an opposing party. Nor is there a showing

that the government has or represents an interest adverse

to the state. Finally, there has been no showing that the

government has or may fail in fulfilling its duty. The

state, therefore, has failed to meet its burden here and

may not intervene as of right under Rule 24(a)(2),

Fed.R.Civ.P.

The state’s final basis for intervention is Rule 24(b),

Fed.R.Civ.P., which authorizes permissive intervention.

This lies within the court’s discretion. ‘‘It may be denied

if the [proposed] intervenor raises collateral or extrin-

sic issues, even though the petition presents a common

question of law or fact.’’ City of Rockford v. Secretary of

Housing and Urban Development, 69 F.R.D. 363, 366

(N.D. Ill. 1975) (citing 3B Moore’s Federal Practice

924.10[4], at 24-394 (2d ed. 1978)). The state’s Complaint

in Intervention lists five counts, four of which raise is-

sues of state law. The adjudication of these issues would

unduly delay the course of this litigation. Accordingly,

this court denies the state’s motion for permissive inter-

vention.

The motion of the People of the State of Illinois for

leave to intervene is, therefore, denied.

ENTER /s/ Frank J. McGarr

United States District Judge

DATED: May 29, 1979

pa, fewer

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff,

vB.

OUTBOARD MARINE CORPORATION, INC.,

a Delaware corporation,

Defendant,

No. 78 C 3187

MEMORANDUM OPINION AND ORDER

The Attorney General of the State of Illinois has

brought this action on behalf of The People of Illinois.

The defendant, Outboard Marine Corporation (‘‘OMOC’’),

has filed a motion to dismiss for lack of subject matter

jurisdiction (Rule 12(b)(1), Fed.R.Civ.P.), for failure to

state a claim upon which relief may be granted (Rule

12(b)(6), Fed.R.Civ.P.), and for failure to join neces-

sary parties (Rule 12(b)(7), Fed.R.Civ.P.). Defendant’s

motion is granted.

Outboard Marine Corporation owns and operates a fa-

cility in Waukegan, Illinois, where it manufactures out-

board motors and their component parts, The complaint

alleges that, from 1959 until the present, OMC’s hydraulic

system has leaked and spilled polychlorinated biphenyls

which are ultimately discharged into Lake Michigan, a

tributary ditch to Lake Michigan, and Waukegan Harbor.

This discharge has allegedly contaminated the bottom

sediments of these waters. The complaint alleges viola-

tions of federal and state laws.

This court must first determine whether it has juris-

diction over the subject matter, for if jurisdiction is

lacking, the action must be dismissed. Stream Pollution

Control Board v. United States Steel Corp., 512 F.2d 1036,

1039 (7th Cir. 1975).

*s

ib Wes

The six-count complaint bases federal jurisdiction on

the federal common law of nuisance (Count I), the Federal

Water Pollution Control Act (‘‘FWPCA’’), 33 U.S.C.

§§1251-1376 (1976) (Count II), and the doctrine of pen-

dent jurisdiction (Counts II-VI).

OMC argnes that this court lacks subject matter juris-

diction because this action .involves no controlling ques-

tions of federal law. The first contention is that Count

TI, the FWPCA claim, must be dismissed because of the

plaintiff’s failure to comply with the notice provision set

forth in §505(b) of the FWPCA. That section provides

that no citizen may bring a civil action against an alleged

violator:

(A) prior to sixty days after the plaintiff has

given notice of the alleged violation (i) to the Ad-

ministrator (ii) to the State in which the alleged vio-

lation occurs, and (iii) to any alleged violator of the

standard, limitation, or order, or

(B) if the Administrator or State has commenced

and is diligently prosecuting a civil or criminal action

in a court of the United States, or a State to require

compliance with the standard, limitation, or order,

but in any such action in a court of the United States

any citizen may intervene as a matter of right.

33 U.S.C. $1365(b) (1976).

Section 505(g) defines ‘‘citizen’’ as ‘‘a person or per-

sons having an interest which is or may be adversely af-

fected.’’ 33 U.S.C. §1365(g) (1976). Because the Attorney

General has brought this action on behalf of The People

of Illinois, he is a citizen for the purposes of this section.

Thus, he must comply with the statutory requirements.

Accord, Commonwealth of Massachusetts v. United States

Veterans Administration, 541 F.2d 119, 121 n. 1 (1st Cir.

1976).

The law in this circuit is that such a notice provision is

jurisdictional. See City of Highland Park v. Train, 519

F.2d 681, 690-91 (7th Cir. 1975), cert. denied, 424 U.S.

~~

¥

— ve

927 (1976), in which the Seventh Circuit Court of Appeals

held that a similar provision under the Clean Air Amend-

ments of 1970, 42 Us. C. §1857h-2(b), was jurisdictional.

The plaintiff has not shown that he has given the re-

quired sixty-day notice to the Admimistrator or to the

defendant. Consequently, the jurisdictional requirement

has not been fulfilled and Count II must be dismissed.

Count I is based on the federal common law of nuisance.

OMC reasserts its argument raised in United States v.

Outboard Marine Corp., No. 78 C 1004 (N.D.Il, filed

March 17, 1978), that the 1972 Amendments to the

FWPCA pre-empted the federal common law of nuisance.

Nothing in the FWPCA evidences an intent to pre-empt.

This court will not presume that Congress wished to pre-

empt the federal common law of nuisance in amending

the FWPCA. Accord, Illinois v. City of Milwaukee, 366

F.Supp. 298, 301 (N.D.IIl. 1973), on remand from 406 U.S.

91 (1972); United States v. Ira 8S. Bushey & Sons, Inc.,

363 F.Supp. 110, 119-20 (D.Vt. 1972), aff’d. 487 F.2d

1393 (2d Cir. 1973). There is indeed federal jurisdiction

over a claim based on the federal common law of nuisance.

Stream Pollution Control Board v, United States Steel

Corp., 512 F.2d 1036, 1039-40 (7th Cir. 1975). In this case,

however, the federal common law of nuisance count is

inadequate.

Minois v. City of Milwaukee, 406 U.S. 91 (1972), is the

leading case involving federal nuisance claims for water

pollution. Unlike the instant case, that action involved a

dispute between Illinois and out-of-state polluters (which

were cities in a neighboring state). In recognizing the

existence of a federal common law of nuisance, the Su-

preme Court both implicitly and expressly noted the pol-

luters’ out-of-state character. For example, the Court

relied heavily on earlier cases involving disputes between

states. See 406 U.S. at 103-07. Further, the Court noted

that the federal common law should be ‘‘a basis for deal-

ing in uniform standard with the environmental rights of

a State against improper impairment by sources outside

its domain.’’ 406 U.S. at 107 n. 9 (emphasis added).

yes Ye

Those courts that have applied the federal common law

of nuisance in pollution cases generally have done so only

when the alleged pollution comes from an out-of-state

source or there is a substantial federal issue involved. See

Committee for Jones Falls Sewage System v. Train, 539

F.2d 1006, 1009 (4th Cir. 1976); Parsell v. Shell Ow Co.,

421 F.Supp 1275 (D.Conn. 1976), aff’d. sub nom East

End Yacht Club, Inc. v. Shell Ow Co., 573 F.2d 1289 (2d

Cir. 1977).

This case involves a controversy between two Illinois

residents, There is no allegation of injury to or from

another state. As such, the federal common law of nui-

sance count fails to state a claim upon which relief may

be granted. Count I, therefore, is dismissed.

Counts ITI-VI are based on state law. Because both

federal claims have been dismissed, the doctrine of pen-

dent jurisdiction is inapplicable. United Mine Workers v.

Gibbs, 383 U.S. 715, 725 (1966). Counts ITI-VI are dis-

missed.

In sum, defendant’s motion to dismiss Counts II, ITI,

IV, V, VI for lack of subject matter jurisdiction is

granted. Count I is dismissed for failure to state a claim

upon which relief may be granted.

ENTER /s/ Frank J. McGarr

United States District Judge

DATED: February 28, 1979