Amicus Curiae Brief — Pure Waters, Inc. v. Michigan Department of Natural Resources

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No. 96-Sie ost

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PURE WATERS, INC.

Petitioner

V.

MICHIGAN DEPARTMENT OF

NATURAL RESOURCES

ET AL.,

Respondents

ON THE PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

BRIEF OF AN AMICUS CURIAE, CARL J. MARLINGA,

PROSECUTING ATTORNEY FOR

MACOMB GOUNTY MICHIGAN IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI.

Carl J. Marlinga*

Prosecuting Attorney

40 North Main

Mt. Clemens, Michigan 48043

* Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

The amicus curiae as prosecuting attorney for Macomb County,

Michigan, submits this brief to request that this Court give close

attention to issue number three (3) presented by petitioner Pure

Waters, Inc.; 1.e.:

“3. Whether a Federal Court that has exercised sole jurisdiction

over all area combined sewer overflow projects erroneously

interprets state law, and thereby usurps state authority, by ruling

that any new project which improves existing environmental

conditions, even though such project continues to pollute, is

exempt from the Michigan Environmental Protection Act, which

absolutely bars any project that pollutes the environment when a

feasible nonpolluting alternative exists?”

From the standpoint of the interest of the amicus curiae,

explained further on in this brief, the question can be better

stated as the following three inter-related questions:

1. Whether the National Environmental Policy Act preempts the

field of water quality and pollution control so as to prevent a

state from enacting a statute establishing higher water quality

standards?

2. Whether a federal district court’s exercise of pendent jurisdic-

tion has resulted in an improper de facto federal preemption of

water quality and pollution control, thereby nullifying the

Michigan Environmental Protection Act and depriving any

potential Michigan plaintiff such as the amicus, herein, from

bringing a lawsuit seeking relief under the state statute?

3. Whether, if this court does not grant a writ of certiorari, there

is any procedural avenue for relief from an erroneous interpreta-

tion of the Michigan Environmental Protection Act, a question of

state law, which is now beyond the reach of any state court to

review, consider, or correct?

TABLE OF CONTENTS

PAGE

INTEREST OF THE AMICUS CURIAE.............. l

SUMMARY OF ARGUMENT ...0...oeccccccseeoseee-o sult

2 I a ate Re tess Slant et 7

I. THIS COURT SHOULD CLEARLY STATE THAT

STATE LAWS SETTING HIGHER STANDARDS

FOR WATER QUALITY ARE NOT PREEMPTED

BY FEDERAL STATUTES o.oo. 7

Il. THE DOCTRINE OF PENDENT JURISDICTION

HAS BEEN MISUSED IN THIS CASE TO

NULLIFY A STATE STATUTE AND PREVENT

ACCESS TO A STATE COURT FORUM... 9

w sauie cserocenn. teu Oe OR LOTR Ra 10

INDEX OF AUTHORITIES

CASES PAGE

County of Oakland v Berkley, 742 F.2d 289

CRRA RD ceseensscoenbcrp unit ndercedvadnsbaveabdic tia sak en acbonicste 9

Eyde v State of Michigan, 393 Mich. 453 (1975)....... 9

Her Majesty the Queen v City of Detroit,

SIR Die ae Ay SPUD scents iictinccicce sesacecsisees 5, 7,8

Metropolitan Life Insurance Co. v Taylor,

FE Ss A EAT D sencksssoevinetneapcembodsichatsetecncmmntnns 5,7

Michigan State Highway Commission v Vanderkloot,

See I BO RO ON ikl a crise tabteicasiciaeaitas veihniuiennses 9

Ray v Mason City Drain Commissioner,

393 DEN 298 (IFT ie AA RK... 8,9

Stoddard v Western Carolina Regional Sewer

Authority, 784 F. 2d 1200 (C.A.4, 1986) .............000. 7

United States v State of Michigan, 777 F.Supp 1365

pac UIs - PI Tien hivessoreentibioitaaith aeetealineiadaalaies tdaehcsiasnce 3

United States Steel Corp. v Train 556 F. 2d 822

OF oe i) RN ee SRE ET WA SAB PUES ie? OE 7

STATUTES

ee AAs. Eee HIRI BD issitacsvnncosusinntactbdcionatestinestoasaaidocbiossin 2

Be Ae MEA shine abaieiiaspheiiinevedgtalidiitantaatee ita ins) 7

ihe PT AAD Usiniicniidinndcierbcchaiabeie ities 1,7

ill

BRIEF OF AN AMICUS CURIAE, CARL J. MARLINGA,

PROSECUTING ATTORNEY FOR

MACOMB COUNTY MICHIGAN IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI.

INTEREST OF THE AMICUS CURIAE

The amicus curiae, Carl J. Marlinga is the elected prosecuting

attorney for Macomb County, Michigan, and brings this amicus

curiae brief (without seeking consent of the parties other than

plaintiff/petitioner) under Rule 36.4 of the Rules of the Supreme

Court of the United States.

Macomb County is a county of approximately 718,000 residents

Situated just north of Detroit. The eastern edge of Macomb

County is the shoreline of Lake St. Clair, a smaller lake in the

waters that comprise the Great Lakes system. Lake St. Clair

receives waters from Lake Huron and discharges them into the

Detroit River. The western edge of Macomb County is the

border of Oakland County, the county that is home to the City of

Birmingham whose sewage retention basin project is the subject

of the lawsuit for which a writ of certiorari is now sought by

Pure Waters, Inc. the plaintiff in this suit. Macomb County lies

downstream from Oakland County and receives waters from

Oakland County on their way to Lake St. Clair.

The geography recited above is important because it is the

Starting point in explaining the interest of the amicus curiae.

As the prosecuting attorney, the amicus is authorized under

Michigan state law to bring nuisance abatement actions to enjoin

any number of possible nuisances, including systematic

discharges of pollutants into the waters of the county. As the

prosecutor, the amicus also has standing under Michigan law to

file suit to enjoin pollution of the waters under the Michigan

Environmental Protection Act, M.C.L. 691.1201, M.S.A.

14.528(201).

Lastly, as the prosecutor and a representative of a political subdi-

vision, the amicus has standing to bring suit to enforce the efflu-

ents standards of the Water Pollution Prevention and Control Act

(also commonly referred to as the Clean Water Act), 33 U.S.C.

1251(a)(1) et seq.

On November, 30, 1995, the Macomb County Board of

Commissioners, the elected governing board of the county, voted

to authorize the amicus to file a Notice of Intention To Sue to be

filed upon the United States Environmental Protection Agency

and the Michigan Department of Environmental Quality alleging

that those agencies had failed to perform their statutory duties to

properly regulate the effluents being dumped into the waters of

Macomb County from a combined sewer and waste water

facility operated by Oakland County. The Notice of Intention

To Sue was mailed December 4, 1995. A copy of the Notice is

attached as an Exhibit. The actual filing of the suit has been

delayed pending the issuance of a proposed new NPDES

(National Pollution Discharge Elimination System) permit which

the Michigan Department of Environmental Quality promises

will soon be issued to address the problems cited in the Notice.

Since this new proposed NPDES permit has not yet been issued,

it is not certain that the new permit requirements will adequately

address the pollution problem. Therefore, the amicus is prepared

to go forward with the lawsuit. The success of that lawsuit,

however, at least as to the counts relying upon Michigan law, is

threatened by the holding of the District Court and the Court of

Appeals in this, the Pure Waters case.

In the interest of accuracy and fairness it must be noted that the

combined sewer overflow facility at issue in the proposed

Macomb County lawsuit is not the same retention basin that is

the subject of the Pure Waters suit. In fact the City of

Birmingham’s basin discharges its waters in a southernly route

that empties into Wayne County and the Detroit River. The legal

holdings with respect to the viability and enforcement of the

Michigan Environmental Protection Act are, however, directly

2

on point and at issue in any lawsuit that would be filed to relieve

the pollution discharges now plaguing Macomb County.

The legal conundrum is this: The District Court in an extraordi-

nary assertion of jurisdiction issued an order directing that all

cases which derive from “a common nucleus of operative facts”

involving the “Detroit water pollution problem” in relation to

sewage systems were to be filed or removed to be consolidated

with the initial case dealing with this problem in the District

Court. United States v State of Michigan, 777 F. Supp. 1365

(E.D. Mich, 1991). As a result of that order, the Pure Waters case

was placed on the docket of the District Court, the Honorable

John Feikens. If the amicus were to file his suit, whether in state

or federal court, it, too, would be transferred or removed to

Judge Feikens.

The District Court’s decision, upheld by the Sixth Circuit Court

of Appeals, is an incorrect interpretation of the federal statutes;

but at least Pure Waters, Inc. had an opportunity to litigate the

federal statutory issues in a federal forum. The summary and

rather superficial (and wrong) analysis of the Michigan

Environmental Protection Act engaged in by the District Court

and affirmed by the Court of Appeals presents more troubling

substantive and procedural errors. Under the doctrine of pendent

jurisdiction a federal court may, indeed, determine related state

claims, looking to state case precedent to intuit what the state’s

highest court would have decided.

In this case, however, the analysis of the state claim is sparse

and the contemplation of state court precedent is minimal. Most

importantly, if the District Court is in error, the error will

continue to hold sway in a court system that is not particularly

attuned to redressing errors in state substantive law issues. From

the standpoint of the amicus, the filing of any suit premised upon

the Michigan Environmental Protection Act is nearly futile. The

claim cannot be heard in state court because of the District

Court’s previous consolidation order: and the District Court’s

3

ndiifindion Vi te Wirciqgan Lav rvuneateds Precio Mee

cannot be appealed to a Michigan appellate court.

The actions of the District Court and the Court of Appeals have

as a practical matter preempted and repealed the Michigan

Environmental Protection Act; and the amicus, and all others

similarly situated, are without a forum to appeal that preemption

and nullification, unless, of course, this Court issues its writ of

certiorari.

The shame of this controversy is that these intellectually fasci-

nating and novel points of jurisdiction, comity and preemption

are being debated over a factual base that could not be more

disgusting. Untreated or partially treated human waste is being

discharged on heavy rain days over the weir of Oakland

County’s southern retention basin (the so-called Twelve Towns

combined sewer overflow facility referred to in the Notice of

Intention To Sue) into the waters of Macomb County. Residents

living along the Red Run Drain and the Clinton River must deal

regularly with an overwhelming stench coming off of those

waterways. Beaches have been closed to swimming. A multi-

million dollar water-recreation industry has been losing money

for years. In 1994, when lake winds blew into shore for a

sustained period of time, floating masses of seaweed blocked the

normal flow of the Clinton River bottling up human waste, dead

fish, and rotting vegetation along miles of residential and recre-

ational shoreline of Lake St. Clair.

The residents of Macomb County through the office of the

amicus need a fair forum to seek relief from these horrific

conditions. They need to rely on a statute, passed by their

legislature, imposing standards higher than those set in federal

law. But without this Court’s writ of certiorari that statute is now

a dead letter.

SUMMARY OF ARGUMENT

This case is important because it concerns the well recognized

national concern over water quality and pollution control. From

the perspective of our state and national court systems this case

has unintentionally and unexpectedly raised some of the most

basic and vexing questions of federalism, pendent jurisdiction

and the preemption doctrine.

A primary issue of national concern, on which state and federal

courts need this Court’s guidance, is the fundamental question of

whether federal law preempts state law in the field of water

quality and pollution control so as to prevent a state from

enacting a statute establishing higher water quality standards.

Most legal scholars would Say that preemption was neither

intended nor desirable; and that states Should be free to adopt

and enforce higher standards. Indeed, in an earlier case, the Sixth

Circuit Court of Appeals held that the very State statute at issue,

the Michigan Environmental Protection Act (“MEPA”) was not

preempted by federal law. Her Majesty the Queen v City of

Detroit, 874 F.2d 332 (C.A. 6, 1989). This court has also held

that state claims are preempted by federal law only where there

is a “clearly manifested” intent by Congress. Metropolitan Life

Insurance Co. v Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed.

2d 55 (1987).

Yet the District Court contrived an analysis of MEPA which

makes it impossible for the state law to act independently of the

federal clean water statutes. The analysis is error enough, but the

District Court (at A27 of Petitioner’s Appendix) has this curious

footnote:

In view of this finding the court notes

nonetheless that a contention can be made that

MEPA is preempted by federal laws which

regulate water pollution.

5

The Sixth Circuit Court of Appeals chose to not comment upon

this footnote. The case law is, therefore, confused in an area of

substantial importance. Either federal law preempts the field or it

does not preempt. If this Court does not address the question, the

preference for preemption will gain more ground in future cases.

If that is the will of this Court, it should say so. If the Court is in

agreement with the earlier decision of the Sixth Circuit in Her

Majesty the Queen, supra., it should also say so to stop the drift

toward preemption.

If this Court does not issue a writ of certiorari for the plaintiff in

this case, Pure Waters, Inc., the amicus in the contemplated case

against Oakland County, and all others similarly situated will

forever be denied relief under MEPA. The holdings of the

District Court and the Court of Appeals on a critical issue of

state law are incorrect; but procedurally, because of the District

Courts omnibus consolidation order (directing all Detroit area

water and sewerage cases to be filed or removed to the District

Court) the Michigan Court of Appeals and the Michigan

Supreme Court will never have an opportunity to interpret and

apply the Michigan statute. From the standpoint of the doctrines

of comity and pendent jurisdiction no procedural result could be

more bizarre. Through the exercise of pendent jurisdiction and

case consolidation an erroneous interpretation of a Michigan

statute is now forever beyond the reach of the Michigan court

system to consider and correct.

In such unusual circumstances, with a national problem such as

water quality at the heart of the controversy, it is quite necessary

and appropriate for this Court to issue its writ of certiorari to

reverse the procedural errors which have deprived the people of

Michigan from the protection of a statute passed by their own

legislature, but now nullified by the federal courts.

ARGUMENT

I. THIS COURT SHOULD CLEARLY STATE THAT

STATE LAWS SETTING HIGHER STANDARDS FOR

WATER QUALITY ARE NOT PREEMPTED BY FEDERAL

STATUTES.

The case law on preemption of state law by federal statutes in

the area of water quality is clear; preemption is not favored. In

Her Majesty The Queen v Cityof Detroit, 874 F.2d 332 (C.A.6,

1989) the United States Court of Appeals for the Sixth Circuit

held that a state statute, the Michigan Environmental Protection

Act, M.C.L. 691.1201 et seq., (the very statute at issue in this

case) was not preempted by federal law. In Metropolitan Life

Insurance Co. v Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed

2d 55 (1987) this court also held that State claims are preempted

by federal law only where there is a “clearly manifested” intent

by Congress. The United States Court of Appeals for the Fourth

Circuit has held that nothing in the Clean Water Act indicates a

congressional intent to occupy the entire field of water pollution

to the exclusion of state regulation. Stoddard v Western Carolina

Regional Sewer Authority, 784 F. 2d 1200 (C.A. 4, 1986). The

Seventh Circuit has also opined that states are free to adopt and

enforce higher water quality standards. United States Steel Corp.

v Train, 556 F. 2d 822 (C.A. 7, 1977).

In spite of the holding in Her Majesty The Queen, supra, the

District Court applied an analysis which had the practical effect

of making MEPA a “piggy-back/me-too” Statute; i.e. if the

complained of activity or project satisfied the National

Environmental Policy Act, 42 U.S.C. 4331 et Seq., every effort

would be made and was made to reach the same holding under

the state MEPA statute. The distaste of the District Court for the

State statute is self-evident in the rather facile, half-hearted

analysis engaged in by the District Court at A25 through A27 (of

the Petitioner’s Appendix) regarding the MEPA cause of action.

Under the Michigan MEPA statute, as interpreted by Michigan

7

courts, a polluter is not allowed to continue polluting unless no

feasible and prudent alternative exists. Ray v Mason City Drain

Commissioner, 393 Mich. 294, 224 N.W.2d 883 (1975). The

state is obviously close to a zero tolerance standard.

The District Court erred substantially in its analysis by carrying

over the less stringent federal statutory test. At A26 (of

Petitioner’s Appendix) the District Court says that because the

proposed retention basin construction project will make things

better (reducing overflow events from the order of forty to sixty

times per year to approximately six to nine per year) it satisfies

the Michigan statute. No Michigan court would so hold.

The District Court goes even further to show its preference for

preemption in this footnote at A27:

In view of this finding the court notes

nonetheless that a contention can be made that

MEPA is preempted by federal laws which

regulate water pollution.

The District Court’s error is only exceeded by its honesty and

candor.

The District Court is asking for a nationwide preemption for

federal law in this area. The Sixth Circuit Court of Appeals

elected to not specifically address this issue, perhaps troubled by

the inherent contradiction with its earlier holding in Her Majesty

The Queen, supra.

The issue is now ripe for determination by this Court. Granting

the writ of certiorari will settle the law on this important

question.

x

Il. THE DOCTRINE OF PENDENT JURISDICTION HAS

BEEN MISUSED IN THIS CASE TO NULLIFY A STATE

STATUTE AND PREVENT ACCESS TO A STATE COURT

FORUM.

This closing section of the argument combines the second and

third questions presented for review. These questions could be

examined under separate argument headings, but the very nature

of the procedural error and the substantial injustice at issue

favors this combination. The District Court has created a vicious

circle. First, it accepts the state MEPA claim under the doctrine

of pendent jurisdiction. This is eminently appropriate. Second, it

issues what can only be called an omnibus consolidation order

directing that all cases which derive from ‘“‘a common nucleus of

operative facts” involving the “Detroit water pollution problem”

shall be brought in the District Court or removed to the District

Court (The order was entered in Case No. 77-7] 100, E.D. Mich,

cited at 777 F.Supp 1365 (E.D. Mich, 1991) and was affirmed in

County of Oakland v City of Berkley, 742 F.2d 289 (C.A.6,

1984). This consolidation order was and is extraordinary, but it

seemed to have sufficient practical benefit to overcome the

unease inherent in its broad and possible overreaching nature.

The previously unseen difficulty in the consolidation order only

appears now that the District Court has erred, at least arguably,

on the state law issue. As stated previously, Michigan has a near

zero tolerance law on water quality. The amicus could, therefore,

file a complaint in any state court of appropriate venue and

could cite a wealth of state precedent to Support the argument

that a polluter must clean up its pollution unless no feasible and

prudent alternative exists. Ray v Mason, 393 Mich. 294, 224

N.W.2d 883 (1975); Eyde v State of Michigan, 393 Mich. 453,

225 N.W.2d 1 (1975); Michigan State Highway Commission v

Vanderkloot, 393 Mich. 159, 220 N.W.2d 416 (1974).

The standard, seemingly preferred by the District Court, and left

undisturbed by the Sixth Circuit, that projects which improve

preexisting conditions are sufficient to satisfy MEPA, would not

be seriously received in the Michigan courts.

The problem now facing the amicus, however, is truly insoluble.

Any complaint filed in state court will be removed to the District

Court. There the law of the case will, in effect, nullify any mean-

ingful application of MEPA. The worst practical effect, however,

is the inability to appeal the MEPA ruling to any forum. The

District Court has already ruled. The Sixth Circuit has affirmed

the error. If this court does not grant review, the Michigan

MEPA law will, in effect, have been repealed. The amicus and

all others similarly situated will have only federal law to rely on.

Normally federal statutes offer a great deal of relief. But, if,

as is the case here, a state statute was intended to provide

additional protections, and if, as is the case here, the state statute

is effectively preempted by federal law, this court’s writ of

certiorari is essential to correct the injustice.

CONCLUSION

The petition of Pure Waters, Inc., for writ of certiorari should be

granted.

Respectfully submitted,

Carl J. Marlinga*

Macomb County Prosecuting Attorney

Macomb County Court Building

40 N. Main, 6th Floor

Mt. Clemens, Michigan 48043

Phone: (810) 469-5641

* Counsel of Record

10

EXHIBIT

(The Notice of Intention To Sue, reproduced on

the following pages, is a precondition to bringing

suit against the Environmental Protection Agency

or any State Agency which is delegated by the

EPA to perform regulatory functions. It is repro-

duced here to permit this Court to understand the

nature of the suit that the amicus intends to file

and the importance of being able to rely on both

federal and state law.)

1]

NOTICE OF INTENTION TO SUE

To: | Ms. Carol Browner, Administrator

Environmental Protection Agency

401 M. St. S.W.

Washington, D.C. 20460

And: Hon. Janet Reno

Attorney General of the United States

Department of Justice

Kent St. and Constitution Ave. N.W.

Washington, D.C. 20539

And: Michigan Department of Environmental Quality

Stevens T. Mason Bldg.

P.O. Box 30028

Lansing, Michigan 48909

And: Mr. Valdas V. Adamkus

Regional Administrator

U.S. Environmental Protection Agency

77 W. Jackson Blvd., (R-19J)

Chicago, Illinois 60604

This Notice is given pursuant to 40 CFR 135.1 et seq. and

specifically 40 CFR 135.3(b) alleging a failure to act with

respect to a non-discretionary duty imposed by the Federal Water

Pollution Prevention and Control Act, commonly referred to as

the Clean Water Act, 33 USC 1251 et seq. The purpose of this

notice is to advise the Administrator of the Environmental

Protection Agency and the Director of the Michigan Department

of Environmental Quality (formerly known as the Michigan

Department of Natural Resourses) that the plaintiff in a proposed

lawsuit, described below, intends to file a civil action under

section 505(a)(2), being 33 USC 1365(a)(2) to compel these

agencies to enforce effluent standards by bringing either a com-

pliance order or a civil action against the owners and operators

12

of a combined sewer overflow facility located in Madison

Heights, Michigan which regularly discharges wastewater into

the Red Run Drain, the Clinton River, and Lake St. Clair, all

waters of the United States located in or abutting Macomb

County, Michigan.

Pursuant to 40 CFR 135.1 et seg. the following information is

provided.

1. The plaintiff and the person giving this notice is

Carl J. Marlinga, Prosecuting Attorney of Macomb County,

(acting upon his relation to the people of Macomb County)

Macomb County Court Building, 40 North Main Street, Mt.

Clemens, Michigan 48043 (Telephone 810-469-5641). An

additional or alternative party plaintiff may be the County of

Macomb, 10 North Main Street, Mt. Clemens, Michigan 48043.

The attorney of record will be Carl J. Marlinga, Prosecuting

Attorney at the address indicated above.

2. The Administrator of the Environmental Protection Agency

has a non-discretionary duty under the Clean Water Act and

especially under 33 USC 1319 (a)(2) to either issue a compli-

ance order or commence a civil action to enforce permit

conditions or limitations whenever the administrator finds, on

the basis of information available to him or her, that violations

are SO widespread that they appear to result from a failure of the

state to effectively enforce such permit conditions or limitations.

3. Oakland County is a political subdivision of Michigan located

directly to the west of Macomb County. Its waters are located

upstream from the waters of Macomb County. The Oakland

County Drain Commission is the holder of an NPDES permit for

a combined sewer overflow system (CSO) known as the

Southeastern Oakland County Sewage Disposal System, and

commonly referred to as the Twelve Towns Retention Basin.

13

The Twelve Towns CSO discharges combined rain water runoff

and sewer water into the Red Run Drain, at the border of

Macomb and Oakland Counties. The plaintiff in the proposed

lawsuit will allege the following.

(a) The Twelve Towns CSO is undersized for the

amount of water it must retain, resulting in a con-

tinuous pattern of overflow events which will not

be abated without additional construction to

increase its capacity. Attached to this notice are

exhibits 1, 2, and 3 which summarize the over-

flow events which have occurred in recent history.

Exhibit 1 shows the overflows that have occurred

from 1987 through October 6th of this year. [The

volume of overflows is in millions of gallons.]

Exhibit 2 shows the greater detail of the individ-

ual overflow events in 1995. Exhibit 3 shows the

same detail for 1994. These exhibits are taken

from data compiled by the Oakland County Drain

Commission, the NPDES permit holder for the

Twelve Towns CSO.

(b) The method of dispensing chlorine into the

retained waters is haphazard and ineffective in

eliminating dangerous toxins and pathogens.

(c) Each year the Twelve Towns CSO discharges

waters in violation of its NPDES permit, releasing

dangerous toxins and pathogens into the waters of

the United States, thereby endangering the health

and safety of persons coming into contact with

these waters.

(d) The Twelve Towns CSO constitutes a public

health hazard and is a continuing source of pollu-

tion for the waters of the United States and a

nuisance to the citizens of Macomb County.

14

(e) Neither the Environmental Protection Agency

nor the Michigan Department of Environmental

Quality have set appropriate or adequate

standards to regulate the discharge of non-

pathogenic biochemicals and nutrients. Although

such substances are not dangerous to living

things, the discharge of such substances has

caused an overgrowth of plant life in and on the

waters. This has led to an overwhelming sight and

smell pollution problem destroying any opportu-

nity to use these waters for recreational purposes.

(f) Neither the Environmental Protection Agency

nor the Michigan Department of Environmental

Quality engage in sufficient testing of the effluent

from the Twelve Towns CSO to determine if

discharges are within appropriate safety levels.

(g) The United States Environmental Protection

Agency and the Michigan Department of

Environmental Quality have taken no enforce-

ment action to abate this source of pollution and

bring Twelve Towns into full compliance with its

NPDES permit.

4. In the proposed lawsuit, the plaintiff will seek injunctive relief

to require the Environmental Protection Agency and the

Michigan Department of Environmental Quality to either issue a

compliance order or commence civil action under 33 USC

1319(a)(2). The plaintiff will also ask the court to determine if

the effluent standards are sufficient to protect the public as

required by the Clean Water Act.

5. The plaintiff will also rely on Michigan law (specifically .

MCLA 691.1201) under the doctrines of pendent or ancillary

jurisdiction to allow the court to determine the validity, applica-

bility and reasonableness of the water quality standards to be

enforced and, further, to order compliance with such standards as

the court may approve.

Respectfully submitted,

Carl J. Marlinga (P 17102)

Prosecuting Attorney of Macomb County

40 North Main Street, 6th Floor

Mt. Clemens, Michigan 48043

Telephone: (810) 469-5641

Dated: December 4, 1995

cc: Hon George W. Kuhn

Oakland County Drain Commissioner

#1 Public Works Drive

Waterford, Michigan 48328

16

EXHIBIT 1

HISTORICAL OVERFLOW DATA

NO. OF VOLUME OF ANNUAL

YEAR OVERFLOWS OVERFLOWS RAINFALL

1995 (10/6) 9 765.7

1994 12 1,119 33.08

1993 11 862 34.02

1992 15 1,033 37.53

1991 7 692 29.30

1990 17 3,141 40.71

1989 11 1,028 32.79

1988 7 378 26.18

1987 14 1,119. 34.91

EXHIBIT 2

OAKLAND COUNTY DRAIN COMMISSIONER

INFORMATIONAL MEETING

SOCSDS RTF NPDES PERMIT

October 12, 1995

1995 OVERFLOW SUMMARY

VOLUME OF RAINFALL

DATE OVERFLOW (MG) (IN)

2. March 7 80 1.05

3. June 2-3 2.3 0.5*

4. July 16-17 288 1.4

5. July 23 6.5 1.0

6. August 3-4 281 26

7. August 5 2.5 0.15

8. August 17 43 1.4

9. October 5-6 58 1.6

~ *Fecal Coliform Violations

18

EXHIBIT 3

OAKLAND COUNTY DRAIN COMMISSIONER

INFORMATIONAL MEETING

SOCSDS RTF NPDES PERMIT

October 12, 1995

1994 OVERFLOW SUMMARY

: Pe a

LY Se SSD

1. January 28 160 1.5

2. March 21 152 1.15

3. April 30-May 1 i 0.9

4. June 13 500 2.75

5. June 24 124 2.25

6. June 26 23 1.0

7. August 13-14 53 1.9°

8. August 28 43 1.5°

9. October 1 44 1.25°

10. November 6 0.4 .95"*

11. November 28 1.4 1,05

12. December 16-17 11 0.65

*Fecal Coliform Violations