# Appendix — Outboard Marine Corp. v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981
- **Citation:** 453 U.S. 917

## Text

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Unpublished order dated April 29, 1980 denying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Unpublished memorandum opinion and order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 Unpublished memorandum opinion and order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,

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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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— 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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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0148%3A2. Public record. Not legal advice.