Opposition Brief — Village of Oconomowoc Lake v. Dayton Hudson Corp.

No. 94-304

In The

Supreme Court of the United States

October Term, 1994

’

THE VILLAGE OF OCONOMOWOC LAKE,

Petitioner,

DAYTON HUDSON CORPORATION, et al.,

Respondents.

+ ‘

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

*

BRIEF OF RESPONDENTS CITY OF OCONOMOWOC

AND TARGET STORES, A DIVISION OF DAYTON

HUDSON CORPORATION IN OPPOSITION

+

Paut G. Kent*

Topp E. PALMER

Counsel for City of

Oconomowoc

Jon P. AxeLrop*

Counsel for Target Stores,

a Division of Dayton Hudson

Corporation

DeWrrt Porter, S.C.

Suite 600

Two East Mifflin Street

Madison, WI 53703

(608) 255-8891

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

Petitioner has improperly framed the issue on review

based upon dicta contained in the Seventh Circuit Court

of Appeals’ decision that discharges to groundwater are

not covered by the Clean Water Act. The question pre-

sented for review actually concerns whether this Court

has jurisdiction where Petitioner failed to comply with

the 60-day notice requirements contained in the Clean

Water Act, 33 U.S.C. § 1365. Accordingly, the question

presented for review is as follows:

Does a federal court have subject matter juris-

diction pursuant to the Clean Water Act over a

citizen suit action when the complainant fails to

provide adequate notice pursuant to 33 U.S.C.

§ 1365(b)?

LIST OF PARTIES

Respondents, City of Oconomowoc and Target Stores,

a division of Dayton Hudson Corporation,! object to Peti-

tioner’s “Statement Naming Additional Parties.”

Supreme Court Rule 24.1(b) requires Petitioner to include

“{a] list of all parties to the proceeding in the court whose

judgment is sought to be reviewed, unless the caption of

the case in this Court contains the name of all parties.”

In the guise of complying with Supreme Court Rule

24.1(b), Petitioner has referenced and included a pro-

posed amicus curiae brief written by the United States

Environmental Protection Agency (“EPA”) which is not

part of the record on review. As acknowledged by Peti-

tioner in its “Statement Naming Additional Parties,” the

referenced brief was refused by the Seventh Circuit Court

of Appeals and was not filed in this proceeding. (Petition

ii)?

It is a well-established principle of Supreme Court

procedure that attempts should not be made to submit

additional or different evidence that is not part of the

record on review. Russell v. Southard, 12 How. 139, 158,

1 Dayton Hudson Corporation is a publicly held corpora-

tion engaged in the retailing of merchandise. Dayton Hudson

Corporation operates the following retail stores throughout the

United States: Target, Marshall Fields, Dayton’s, Mervyn's and

Hudsons. This information is being submitted pursuant to

Supreme Court Rule 29.1.

2 References to Petitioner’s Writ of Certiorari are desig-

nated as (Petition ___).

ee ee ee ee ee ee ee ee eg | eee Ee te me uw fh” belle ta’ reo

iii

LIST OF PARTIES - Continued

159 (1851); Hopt v. Utah, 114 U.S. 488, 491-92 (1885);

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-58 n. 16

(1970). Indeed, the American Bar Association has gone so

far as to label such efforts “unprofessional conduct.” The

Prosecutor Function Standard 3-5.9; The Defense Func-

tion Standard 4-7.9 (2d ed. 1979).

Apart from Petitioner’s unwarranted and wholly

improper reference to the proposed amicus curiae brief of

the EPA, Respondents agree with Pctitioner’s “Statement

Naming Additional Parties.”

oe ee Oy CORO Te Se

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

Ee Nr Rs eae bcs ee cnc cibace gecsee bans ii

Te ee SI ow bn ob nce ons bien tunsanccedeons iv

TAGE Gr RAP 5 65 6 600 ead vemateites vi

SEA Se RN ii os vials Cs eh eves ewes 1

PEPE GOP BOE BPI ov ccc ca ence ecccescuns 2

SUMMARY OF THE ARGUMENT ................. 7

RE EE CAGE AEG AB A a 9

I. THIS CASE DOES NOT WARRANT REVIEW

BECAUSE THERE IS NO SUBJECT MATTER

JURISDICTION OVER THE VILLAGE’S

CLEAN WATER ACT CLAIMS .............. 9

A. Compliance With The 60-Day Notice

Requirement Is A Mandatory Jurisdic-

tional Prerequisite To Citizen Suit Actions

Under The Clean Water Act............. 9

B. The Village Failed To Comply With The 60-

Day Notice Requirement................. 11

II. THIS CASE DOES NOT WARRANT REVIEW

BECAUSE THE ISSUES ARE MOOT......... 13

A. Issues Associated With Stormwater Dis-

charges From Construction Are Moot

Because Construction Is Completed...... 14

B. Issues Associated With Stormwater Dis-

charges From Operational Activities Are

Moot Under DNR Rules................. 15

Il. THE ISSUE PRESENTED FOR REVIEW IS NOT

PROPERLY RAISED BY THIS RECORD........ 17

ey Le ee Se

Re ee ae ee

Vv

TABLE OF CONTENTS - Continued

Page

A. The Issue Presented For Review By The

ME EN, ch ib d.0esscivecreagccccecs

B. The Village Has Not Made A Good Faith

Allegation Regarding The Discharge Of Pol-

lutants To Waters of the United States .....

IV. REVIEW BY THIS COURT IS NOT WAR-

wr ies | ee

A. The Issue Presented for Review Has Not

Been Fully Developed By The Lower

NEOTEL 6 ARE IEL SD eT

B. The Issue Presented Has Not Been

Resolved By EPA And Is Now Being

a Perr eer rere reer eee

ee Cec adG ee pene e sees seed asiecacees

APPENDIX

February 2, 1994 letter to DNR Staff Attorney

Charles Hammer from Attorney Donald

ESE Ga Neer etccesdeneccadacttescerecss App.

February 11, 1994 letter to Attorney Donald

Kiesling from DNR Staff Attorney Charles

eer eer Pe Cee EU EEE e eREEEEE Ee App.

September 14, 1994 letter to DNR Staff Attorney

Charles Hammer from Attorney Donald

ED chee ane tens chans vp her hess aeenien ss App.

September 15, 1994 letter to Attorney Donald

Kiesling from DNR Staff Attorney Charles

ME eGR OCR A ie echuc eee oh kc tcedecedicseees App.

Affidavit of Michael Beglin.................. App.

Affidavit of Jay Hockmuth................... App.

Affidavit of Michelle Schueller............... App.

SO CP eT aed Cee TCT, ee ‘ ‘ ;

EO ee BT Eee gO OE, MULT tae, Dee Oe ee eae a nL ee ee eee

19

22

22

vi

TABLE OF AUTHORITIES

Page

CAsEs:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)...... iii

Belcher v. Stengel, 429 U.S. 118 (1976).............. Te

Board of License Comm'rs v. Pastore, 469 U.S. 238

(1905) ... <b ions. wis Cee aeen ee a eeee Bea 7, 14

Citizens for Better Environment-California v. Union

Oil Co. of California, et al., ___ F. Supp. ___ 1994 :

WL. S7S5501 CUD: Ga. Be oie eee cee wee sss... 10

City of Highland Park v. Train, 519 F.2d 681 (7th Cir.

1975), cert. denied, 424 U.S. 927 (1976)............. 10

Dague v. City of Burlington, 935 F.2d 1343 (2nd Cir.

1991), rev’d in part on other grounds, ___ U.S.

_» 112 &. Ce. SG Cia ste cweden se saks 41, 12,13

Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir. 1977). ..23, 26

Fusari v. Steinberg, 419 U.S. 379 (1975)............. 7, 14

Gorman v. Washington University, 316 U.S. 98

(1942) 0. . oc ves cdkcunde een ean et tees 11, 13

Gotthilf v. Sills, 375 US. FO Giabe ss00 st cas cences at, 13

Gwaltney of Smithfield v. Chesapeake Bay Foundation,

Inc., 486 U.S. 99 CDGP) ows vnsnivgcneeosvvas 9, 15, 19

Hallstrom v. Tillamook County, 493 U.S. 20 (1989)...9, 10

Hopt v. Utah, 114 U.S. 488 (1885)...............20 0. iii

Inland Steel Co. v. EPA, 901 F.2d 1419 (7th Cir.

UGBO). « «0.00 scccessscvcedeus peeve: sean 23, 25

Kelley v. United States, 618 F. Supp. 1103 (W.D.

Dich. 19GB), «ss o.nics én nuh <teeeg wegetevesines 23, 25

(DGG) a6 5 6:c pae sce cducruedwadwes ees eeee teste every’ 24

Vii

TABLE OF AUTHORITIES - Continued

Massachusetts v. United States Veterans Admin., 541

po Be ae POPE eee rT eee eee 10

McClellan Ecological Seepage Situation v. Cheney, 763

P. Sapp. S51 (B.D. Cal. 1909) ...... 02. ceee. a) a0

National Envtl. Found. v. ABC Rail Corp., 926 F.2d

ee ee 10

Newsom v. Smyth, 365 U.S 604 (1961)................ 19

Portsmouth Redevelopment and Housing Authority v.

BMI Apartments Assoc., 847 F. Supp. 380 (E.D.

OE A ee ee eee 10

Protect Our Eagles’ Trees v. Lawrence, 715 F. Supp.

i icone in kta esse sepanvecaceecss 10

Public Interest Research Group, Inc. v. ELF Atochem

North America, Inc., 817 F. Supp. 1164 (D.N.J.

RNR cries nn cb Uaadhic WA PSGdS <0 0s cc ccadeces 20

Russell v. Southard, 12 How. 139 (1851)............... ii

Sierra Club v. Colorado Refining Co., 838 F. Supp.

I I no ve Wk vvinies ohn webs +p 00 cesses 23

Smith vw. Butler, 366 U.S. 161 (1961). ............000e. 18

St. Clair v. City of Chico, 880 F.2d 199 (9th Cir.

1989), cert. denied, 493 U.S. 993 (1989)............. 19

Tannenbaum v. Jamison, __ F. Supp. __, 1994 WL

i i Cis cc hey bseesescvnccccececcess 10

The Monrosa v. Carbon Black, Inc., 359 U.S. 180

ce Cas save dwasudech eh esoe cede cocese 18

United States v. Princeton Gamma-Tech, Inc., et al.,

__ F.3d __, 15, 1994 WL 394696 (3rd Cir. 1994) .... 10

Viii

TABLE OF AUTHORITIES - Continued

Page

Village of Oconomowoc Lake v. Dayton Hudson Corp.,

24 F.Sd 962 (7th Cie, T99Q) iii. cin cint cs 12, 18, 22

Western Transp. Co. v. Couzens Warehouse & Distrib-

utors, Inc., 695 F.2d 1033 (7th Cir. 1982)........... 19

Zands v. Nelson, 779 F. Supp. 1254 (S.D. Cal. 1991) .... 11

STATUTES:

i ee ead Seu 20

I isis oh cas eas 17

A, i cari ed nts sneeenedleeke

SP SA OE civics ads cad (3 ae 11

SUE Oe ea ee 15

a OL ae eS ee 15

a5 Ee. 6 I... ... 2 oi sce cee 24

SS SE On a a, ei a 14

Si a i i, 1,9, 11

5 OO 8 ON oe ee 1,9

SS: GAC. SB CHINN Li 2) ie daa RRS i, 1, 9, 10

1 USE: OOM oss As RAS 9

SE Oe 8 10

2 USE OT as. EES SES 9

URC 6 WIS. os 5. ends cb 11, 12, 17

Wika: Sink. © TEP IOO) | o-oo oo cake cass oc 6, 15

ie lek i i 15

Wis. Stet 267. OO5IO 6 5. oss 9S. in cs Bevlccank 6

ix

TABLE OF AUTHORITIES —- Continued

Page

REGULATIONS:

Pog) ea 14, 16

Be Gaps Oe IEEE oh ocd c ccc cecice vercewnves 14, 16

po: ree 16

Ue PH I UIE NOD voc ence ccc cdecece ys 16

OTHER AUTHORITIES:

The Defense Function Standard 4-7.9 (2d ed. 1979) .... iii

The Prosecutor Function Standard 3-5.9............. iii

(b)

STATUTES INVOLVED

33 U.S.C. § 1365

(a)

Authorization; jurisdiction

Except as provided in subsection (b) of this section

and section 1219(g)(6) of this title, any citizen may

commence a civil action on his own behalf -

(1) against any person (including (i) the United

States, and (ii) any other governmental instru-

mentality or agency to the extent permitted by

the eleventh amendment to the Constitution)

who is alleged to be in violation of (A) an efflu-

ent standard or limitation under this chapter or

(B) an order issued by the Administrator or a

State with respect to such a standard or limita-

tion, or

(2) against the Administrator where there is

alleged a failure of the Administrator to perform

any act or duty under this chapter which is not

discretionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such an effluent stan-

dard or limitation, or such an order, or to order the

Administrator to perform such act or duty, as the

case may be, and to apply any appropriate civil

penalties under section 1319(d) of this title.

Notice

No action may be commenced -

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

(A) prior to sixty days after the plaintiff has

given notice of the alleged violation (i) to the

Administrator, (ii) to the State in which the

alleged violation occurs, and (iii) to any

alleged violator of the standard, limitation, or

order, or

(B) if the Administrator or State has com-

menced and is diligently prosecuting a civil or

crimjnaLaction 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 inter-

vene as a matter of right.

(2) under subsection (a)(2) of this section prior to

sixty days after the plaintiff has given notice of such

action to the Administrator,

except that such action may be brought immediately afier

such notification in the case of an action under this sec-

tion respecting a violation of sections 1316 and 1317(a) of

this title. Notice under this subsection shall be given in

such manner as the Administrator shall prescribe by reg-

ulation. (emphasis added)

STATEMENT OF THE CASE

Procedural History

This case is one of twenty (20) legal proceedings

initiated by the Village of Oconomowoc Lake (“the Vil-

lage”) and others to stop the development of the Target

Midwest Regional Distribution Center (“Target Center”)

in an industrial park in the City of Oconomowoc, Wiscon-

sin. (R.1, 29) This action was filed on July 30, 1993 after

the Village had been unsuccessful in obtaining relief from

several Wisconsin state administrative agencies, county

circuit courts, the Wisconsin Court of Appeals and the

Wisconsin Supreme Court. (R.29)

The Complaint originally named Dayton Hudson

Corporation, the Wisconsin Department of Natural

Resources (“DNR”) and its Secretary, and the United

States Environmental Protection Agency (“EPA”) its

Administrator and Regional Administrator as defendants.

(R.1) The City of Oconomowoc (“City”) was allowed to

intervene as a defendant by the district court because the

Target Center will create 700 jobs and generate $800,000

in annual tax revenue for the City when fully operational.

(R.25, 30:398) On August 26, 1993, the Village voluntarily

dismissed all of the federal defendants. (R.36)

The Complaint alleged that the DNR improperly

applied Wisconsin law when it issued Target an indirect

source air permit and when it authorized Target to dis-

charge stormwater runoff to the groundwater underlying

the facility. (R.1.) The Village alleged that these decisions

of the DNR gave rise to claims under the federal Clean

Air Act and Clean Water Act. Id. The district court dis-

agreed. (R.56; Pet. A. 20a)?

On August 11, 1993, the district court, like numerous

state courts before it,4 denied the Village’s motion for

3 References to the Appendix of Petitioner’s Writ of Cer-

tiorari are designated as (Pet. A. ____). References to the Appen-

dix of Respondents’ Brief in Opposition are designated as (Resp.

A. __). References to the Record are designated as (R.___).

4 The Petitioner has requested injunctive relief from var-

ious tribunals at least 17 times. Each request for injunctive relief

has been rejected. See, Joint Memorandum of the City of

Oconomowoc and Target Stores Opposing Motion for Injunctive

temporary injunctive relief. (R.13, 34) Subsequently, on

September 24, 1993, the district court granted motions to

dismiss for lack of federal subject matter jurisdiction.

(R.56; Pet. A. 13a) In reaching its decision, the district

court concluded that indirect sources of air emissions,

such as parking lots, are not required to obtain a permit

under Part D of the Clean Air Act and that stormwater

discharges to sroundwater are not subject to regulation

under the Clean Water Act. Id.

The Village appealed to the United States Court of

Appeals for the Seventh Circuit. (R.58) On February 15,

1994, the day of oral argument before the Seventh Circuit

Court of Appeals, the EPA attempted to re-enter the case

as an amicus. (Pet. A. 23a) The primary reason given for

the EPA’s- eleventh hour appearance was that the EPA

could not state its position on regulation of groundwater

discharges until the Clinton Administration had finalized

its position on Congressional Clean Water Act initiatives

and the Administration had not done so until February 1,

1994. (Pet. A. 26a) The Seventh Circuit Court of Appeals

refused to accept or file the EPA’s amicus curiae brief. (Pet.

A. 22a)

On May 18, 1994, the United States Court of Appeals

for the Seventh Circuit entered its decision affirming the

district court. (Pet. A. 11a)

Relief Pending Appeal filed with the Seventh Circuit Court of

Appeals.

The Development of the Target Facility

The Target Center occupies 25 acres of a 99-acre site

and provides state-of-the-art warehousing and distribu-

tion services for 37 Target stores in Wisconsin, Illinois and

Iowa. (R.30:422) The facility was built at a cost of $63

million and is now complete. (Resp. A. 11)

The Industrial Park District in which the Target Cen-

ter is located was originally developed in 1989 based

upon the reports and recommendations of the Southeast

Wisconsin Regional Planning Commission (“SEWRPC’”).

(R.30:398) The site is located off State Highway 67, a four-

lane highway, approximately one-quarter of a mile from

Interstate Highway I-94, a heavily traveled major artery

for the City of Milwaukee. (R.30:398) The Target Center is

immediately adjacent to the existing Oconomowoc Cor-

porate Center which contains several factories. (R.30:398)

Before construction of the facility commenced, Target

obtained all necessary state and local permits and

approvals. (Pet. A. 1a; R.30:422) These included a Condi-

tional Use Permit from the City Plan Commission, build-

ing permits from the city and state, an “indirect source”

air permit for the parking lot from the Wisconsin Depart-

ment of Natural Resources,® and a stormwater discharge

authorization from the DNR. (R.30:422)

5 The Plan Commission approval was granted after a public

hearing and two Plan Commission meetings. The review

included traffic impacts, water quality impacts, geotechnical

evaluations, building code reviews and documents submitted to

the DNR for its permits. (R.30:426.)

6 As part of the review of the air permit, the DNR prepared

an extensive Environmental Assessment (“EA”) under the Wis-

consin Environmental Policy Act. (R.30:444-485) After review of

Target submitted a “Notice of Intent for Stormwater

Discharges Associated With Construction Activities” to

the DNR on April 9, 1993 because of the potential for

discharges to groundwater. (R.30:498) Under state law,

Wisconsin voluntarily chose to regulate the discharge of

pollutants to groundwater resources. Wis. Stat.

§ 147.015(20) Significantly, no surface water discharges

were at issue. (R.30:533)

The Notice of Intent included a detailed stormwater

management report describing the stormwater manage-

ment techniques which would be utilized during the con-

struction of the distribution center. (R.30:499) This report

also included detailed plans for a state-of-the-art storm-

water retention and infiltration pond which would collect

and treat stormwater runoff from the parking areas once

the facility was completed. (R.30:528) On April 22, 1993,

the DNR issued a letter to Target’s general contractor

expressly authorizing the stormwater discharges associ-

ated with the construction activities described in Target’s

Notice of Intent. (R.30:539)7

Target did not need to apply for a stormwater dis-

charge permit for its operations until 180 days prior to

the commencement of facility operations. Wis. Stat.

§ 147.025(2); (R.30:499) Subsequently, on February 11,

written public comments and comments at public hearings held

on April 8 and 12, 1993, the DNR concluded that the facility did

not have a significant impact on the quality of the human envi-

ronment and that therefore a full Environmental Impact State-

ment was not required. Id.

7 The Construction Site Stormwater Discharge Authoriza-

tion is attached to the Schueller Affidavit. (R.30:539)

co 5 ’ - oe

at ee? , oer Pr 7 So re - 7. “45 oe we 2 ai “ad Tee RO, eee Ne ee

1994, the DNR confirmed that Target did not require a

stormwater discharge permit for operation of the facility

once constructed. (Resp. A. 5) Once the facility was con-

structed and became operational, the DNR again con-

firmed that the Distribution Center was not required to

obtain a discharge permit.’ (Resp. A. 9)

*

SUMMARY OF THE ARGUMENT

This case does not warrant review by this Court for

several reasons. First, the Village failed to provide ade-

quate and timely notice under the citizen suit provisions

of the Clean Water Act and Clean Air Act. Accordingly,

this Court lacks subject matter jurisdiction to issue the

requested writ of certiorari.

Second, the issues presented for review regarding the

stormwater discharges from construction and operation

8 On September 15, 1994, Attorney Charles R. Hammer of

the DNR Bureau of Legal Services issued a letter opining that

the Target Center was not required to obtain any permit what-

soever for the stormwater runoff discharges associated with

operation of the facility. (Resp. A. 9) Although this letter is not

part of the formal record on review, it can be considered by this

Court as it is a fact with respect to the mootness of the Village’s

requested writ of certiorari. Board of License Comm'rs v. Pastore,

469 U.S. 238, 240 (1985) (It is appropriate to remind counsel that

they have a “continuing duty to inform the Court of any devel-

opment which may conceivably affect the outcome” of the liti-

gation.); citing, Fusari v. Steinberg, 419 U.S. 379, 391 (1975). As

discussed fully in section II of this brief, the DNR’s determina-

tion that its final rules do not require the Target Center to obtain

a stormwater discharge permit makes the Petition for a Writ of

Certiorari moot.

activities at the Target Center are now moot. With regard

to construction activities, all construction has been com-

pleted on the Target Center. With regard to ongoing

stormwater discharges associated with operational activ-

ities at the Target Center, it has been determined and

confirmed by the DNR that the Target Center is not

required to obtain any permit whatsoever EINE its

discharge of stormwater.

Third, the issue presented for review has not been

properly raised by the record. The issue which the Village

has presented is based entirely upon dicta contained in

the Seventh Circuit Court of Appeals’ decision. Further-

more, the Village has wholly failed to make a good faith

allegation regarding the discharge of pollutants to waters

of the United States (i.e. surface water). Indeed, its own

expert testified that the stormwater runoff is not expected

to impact the surrounding surface waters. (R.49)

Finally, review by this Court is not warranted at this

time because the issue presented for review has not been

fully developed by the lower courts nor has it been

resolved by EPA or Congress.

¢

‘ ee

iy S wetness Gi ea aes 3

ARGUMENT

I. THIS CASE DOES NOT WARRANT REVIEW

BECAUSE THERE IS NO SUBJECT MATTER

JURISDICTION OVER THE VILLAGE’S CLEAN

WATER ACT CLAIMS.

A. Compliance With The 60-Day Notice Require-

ment Is A Mandatory Jurisdictional Prerequi-

site To Citizen Suit Actions Under The Clean

Water Act.

The Village asserted jurisdiction in the district court

under the citizen’s suit provisions ot the Clean Water Act.

33 U.S.C. § 1365(a). However, a mandatory prerequisite of

such an action is that a complainant give 60 days notice

prior to filing its lawsuit. 33 U.S.C. § 1365(b); see, Hall-

strom v. Tillamook County, 493 U.S. 20, 29 (1989), citing

Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc.,

484 U.S. 49, 60 (1987).

The 60-day notice requirement, which is common to

citizen suit provisions under the Clean Water Act (33

U.S.C. § 1365), the Clean Air Act (42 U.S.C. § 7604) and

the Resource Conservation and Recovery Act (42 U.S.C.

§ 6972), serves two functions:

First, notice allows Government agencies to take

responsibility for enforcing environmental regu-

lations, thus obviating the need for citizen suits.

... Second, notice gives the alleged violator “an

opportunity to bring itself into complete compli-

ance with the Act and thus likewise render

unnecessary a citizen suit.

Hallstrom, 493 U.S. at 29, citing Gwaltney of Smithfield, 484

U.S. at 60.

oh ei i eam SINS 5 iets Tk i

10

This Court has repeatedly emphasized the impor-

tance of complying with this jurisdictional prerequisite.

In Hallstrom, which involved an analogous notice provi-

sion under the Resource Conservation and Recovery Act

(42 U.S.C. § 6972(c)), this Court held that 60-day notice

requirements are “mandatory conditions precedent to

commencing suit under the RCRA citizen suit provision —

493 US. at 29.

This Court’s holding in Hallstrom interpreting the

Resource Conservation and Recovery Act citizen suit pro-

visions has been applied to Clean Water Act citizen suit

claims. National Envtl. Found. v. ABC Rail Corp., 926 F.2d

1096, 1097 (11th Cir. 1991) (holding that “the 60-day

notice requirement of 33 U.S.C. § 1365(b) is a mandatory

condition precedent to the filing of a citizen suit under

the Clean Water Act.”); Citizens for Better Environment-

California v. Union Oil Co. of California, et al., __ F. Supp.

___ 1994 WL 475591 (N.D. Cal. 1994).

Due to the importance of the notice requirements of

citizen suit provisions, courts have held that failure to

provide proper notice will result in dismissal of the entire

citizen suit for lack of subject matter jurisdiction. Massa-

chusetts v. United States Veterans Admin., 541 F.2d 119, 121

(1st Cir. 1976); Protect Our Eagles’ Trees v. Lawrence, 715 F.

Supp. 996, 998 (D. Kan. 1989); Citizens For A Better Envi-

ronment-California, WL 475591; Tannenbaum v. Jamison,

F. Supp. __, 1994 WL 247120 (N.D. Ill. 1994); United States

v. Princeton Gamma-Tech, Inc., et al., __. F.3d ___, 1994 WL

394696 (3rd Cir. 1994); Portsmouth Redevelopment and

Housing Authority v. BMI Apartments Assoc., 847 F. Supp.

380, 386 (E.D. Va. 1994); City of Highland Park v. Train, 519

F.2d 681, 691 (7th Cir. 1975), cert. denied, 424 U.S. 927

}

11

(1976). Because the notice requirement is deemed to be

jurisdictional in nature, the Village’s utter failure to meet

this requirement deprives this Court of jurisdiction to

issue the writ of certiorari. This Court will not grant

review where jurisdiction is not present. Gotthilf v. Sills,

375 U.S. 79, 80 (1963); Gorman v. Washington University,

316 U.S. 98, 100 (1942).

B. The Village Failed To Comply With The 60-Day

Notice Requirement.

Here, the Village admits it failed to give a 60-day

notice. (Petition 7) Moreover, the Village does not attempt

to claim that its action was brought under 33 U.S.C.

§§ 1316 or 1317(a), which are exempt from the notice

requirement. Instead, the Village argues that it was not

required to comply with the 60-day notice requirement

under the Clean Water Act because it also alleged Clean

Air Act claims which did not require advance notice. Id.

Specifically, the Village alleges because “the suit was, in

part, premised upon 42 U.S.C. § 7604(a)(3)” of the Clean

Air Act, it did not have to comply with the 60-day notice

under 33 U.S.C. § 1365. Id.

Even if one were to accept the hybrid jurisdiction

“premise” the Village asserts under Dague v. City of Bur-

lington, 935 F.2d 1343, 1351 (2nd Cir. 1991), rev’d in part

on other grounds, __ U.S. __, 112 S. Ct. 2638 (1992),

there is a fundamental flaw in the Village’s argument.?

9 The hybrid jurisdiction argument is based entirely on two

cases Dague and Zands v. Nelson, 779 F. Supp. 1254, 1260-61 (S.D.

Cal. 1991) which relies on Dague. Both cases present citizen suit

12

The Court of Appeals in this case held that Clean Air Act

jurisdiction under 42 U.S.C. § 7604(a)(3) was “impossi-

ble”:

But to use § 7604(a)(3) the Village had to show

that ‘part D of subchapter I of this Chapter’

requires a major-facility permit, and it is impossi-

ble to see how this could be so... . ‘[P]art D of

subchapter I’ does not require Dayton Hudson

to obtain a permit; any such requirement must

come from Wisconsin law and therefore cannot

serve as a foundation for suit under

§ 7604(a)(3).” (emphasis added)

Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d

962, 964 (7th Cir. 1994). (Pet. A. 4a). The Village has not

petitioned for review of this aspect of the Seventh Circuit

Court of Appeals’ decision. (Petition i)

In the absence of a valid Clean Air Act claim under

42 U.S.C. § 7604(a)(3), there is no basis for excusing

compliance with the 60-day notice requirement under the

Clean Water Act. Nor should there be. If a party could

avoid the 60-day notice requirement simply by making a

groundless or “impossible” allegation that some excep-

tion applies, then the 60-day notice requirement would be

effectively removed from the statutes of all major envi-

ronmental laws.

Even the Court in Dague acknowledged that dis-

missal of a claim requiring 60 days notice is appropriate

claims under the Resource Conservation and Recovery Act.

There are no reported cases which apply this theory to hybrid

claims under the Clean Air Act and Clean Water Act.

13

in the absence of a valid underlying claim which is not

subject to an advance notice requirement:

It [the City] also argues that if plaintiffs could

circumvent the delay requirements by simply

asserting a subchapter III claim, whether or not

such a claim has merit, the congressional policy

for delay would be effectively nullified.

* * +

Of course, if a plaintiff should allege frivolous

subchapter III claims, he would not only be

subject to Rule 11 sanctions, but his claims could

also be dismissed early in the litigation process,

and the court, by stay or dismissal, could require

full observances of the delay period. (Emphasis

added).

Dague, 935 F.2d at 1351-52.

Here, although not subject to Rule 11, the Seventh

Circuit Court of Appeals has dismissed the Village’s

wholly meritless Clean Air Act claims. There is no inde-

pendent basis for federal jurisdiction or to allow the

Clean Water Act claims asserted in this action to proceed

in the absence of a proper 60-day notice. In the absence of

subject matter jurisdiction, this court has no basis to

accept the petition. Gotthilf, 375 U.S. at 80; Gorman, 316

U.S. at 100.

II. THIS CASE DOES NOT WARRANT REVIEW

BECAUSE THE ISSUES ARE MOOT.

Under the 1987 Amendments to the Clean Water Act,

stormwater discharges “associated with industrial activ-

ities” are subject to the discharge permit program. 33

U.S.C. § 1342(p). Industrial activities are defined by refer-

ence to the Standard Industrial Classification (SIC) Code

published by the Office of Management and Budget. 40

C.F.R. § 122.26(a)(1)(ii) and (b)(14). Construction sites

affecting areas greater than 5 acres are included as an

industrial activity even if the facility when completed is

not considered an industrial activity. Id.

The Village alleges that Target needed a water dis-

charge permit for two types of stormwater discharges to

groundwater. Specifically, the Village alleges Target

needed a discharge permit for stormwater discharges

associated with the construction of the Target Center and

another permit for discharges associated with operation

of the Target Center. Both of these issues are now moot.

A. Issues Associated With Stormwater Discharges

From Construction Are Moot Because Construc-

tion Is Completed. :

Construction of the Target facility began on June 6,

1994 and has now been completed. (Resp. A. 11)! Thus,

even if stormwater discharges from construction activ-

ities were covered by the Clean Water Act, there are no

continuing stormwater discharges from construction

activities at the Target Center. It is a well established

principle that a Clean Water Act citizen suit action cannot

10 The Beglin Affidavit is not part of the record on review.

However, because the completion of the Target Center gives rise

to the issue of mootness, it is proper for this Court to consider

such factual evidence. Board of License Comm'rs v. Pastore, 469

U.S. 238, 240 (1985); citing, Fusari v. Steinberg, 419 U.S. 379, 391

(1975).

15

be brought for “past violations.” Gwaltney of Smithfield,

484 U.S. at 64. Accordingly, this issue is moot.

While the claim is moot, it should be noted that

Target fuii: complied with the DNR’s requirements for

control «+ stormwater discharges from construction

sites.!1 In accordance with the Wisconsin stormwater pro-

gram, Target submitted to the DNR a Notice of Intent to

Discharge Stormwater (“NOI”) along with a detailed con-

struction site erosion plan on or about April 9, 1993.

(R.30:518) On April 28, 1993, Target’s general contractor,

Witcher Construction Company, received notice from the

DNR that stormwater was authorized to be discharged

from the Target Center construction site. (R.30:539)

B. Issues Asscciated With Stormwater Discharges

From Operational Activities Are Moot Under

DNR Rules.

Under the Clean Water Act, states are required to

develop and implement their own discharge permitting

programs. 33 U.S.C. § 1342(b). Once a state’s program is

approved by EPA, that state is delegated sole authority to

authorize discharges. Id. Wisconsin has been delegated

authority ~y the EPA to implement and enforce its own

discharge permit program pursuant to 33 U.S.C. § 1342.

11 Although unde, no federal requirement to do so, the

State of Wisconsin voi. .tarily chose to regulate and permit the

discharge of stormwaier runoff to groundwater resources.

Indeed, Wisconsin requires permits for the “discharge of any

pollutant into waters of the state.” Wis. Stat. § 147.02(1) (emphasis

added). The term “waters of the state” is defined to include both

“surface water” and “groundwater.” Wis. Stat. § 147.015(20).

16

(R.30:497; Resp. A. 14) That delegation has been neither

suspended nor revoked by the EPA. Id.

In accordance with this delegation, the DNR began to

develop formal administrative rules to implement the

storm water permit program.!? These rules, now con-

tained in Wis. Admin. Code ch. NR 216, were adopted by

the Wisconsin Natural Resources Board at its June 1994

Board meeting, have completed legislative review and are

now final. (Resp. A. 10)

In accordance with federal mandates, NR 216 only

regulates stormwater discharges from facilities with spec-

ific SIC codes. 40 C.F.R. § 122.26(a)(1)(ii) and (b)(14); Wis.

Admin. Code § NR 216.21. The Target Center is classified

as SIC Code 5311 (Resp. A. 3) which does not require a

permit under the DNR’s final rules. See, Wis. Admin.

Code § NR 216.21. This was confirmed by the DNR in a

letter dated February 11, 1994 from DNR Staff Attorney

Charles Hammer while the rules were in draft form.

(Resp. A. 5) Attorney Hammer issued a subsequent opin-

ion after NR 216 was finalized which confirmed that the

Target Center, being classified as SIC Code 5311, was not

12 Prior to the finalization of those rules, the DNR adminis-

tered the program informally. (R.30:497; Resp. A. 16) The DNR

required that any person who anticipated commencing a dis-

charge submit a Notice of Intent (“NOI”). Id. Upon receiving the

NOI, the DNR determined whether the applicants discharging

activities were authorized. Id. The DNR then sent a letter con-

firming receipt of the NOI application and authorizing storm-

water to be discharged. Id. Target, along with over 4,000 other

entities in Wisconsin have followed this process and have

received authorization to discharge stormwater from their

respective construction sites. Id.

17

required to obtain any stormwater discharge permit for

its facility. (Resp. A. 9) Thus, even if stormwater dis-

charges to groundwater were covered under the Clean

Water Act, Target does not require a permit. Since a

remand would accomplish nothing, this issue is moot.

The Village’s real complaint appears to be that the

stormwater permit program was improperly delegated to

Wisconsin or is being improperly administered. Under

the terms of the Clean Water Act, the Village’s recourse

for alleged deficiencies in Wisconsin’s delegated storm-

water program is to seek to have the EPA Administrator

withdraw Wisconsin’s stormwater authorization or chal-

lenge the recently promulgated rules. 33 U.S.C.

§ 1342(c)(3). The Village has not sought this remedy.

Indeed, although the Village named EPA in its original

Complaint, the Village voluntarily dismissed EPA on

August 26, 1993. (R.36)

Ill. THE ISSUE PRESENTED FOR REVIEW IS NOT

PROPERLY RAISED BY THIS RECORD.

A. The Issue Presented For Review By The Village

Is Dicta.

As discussed in section I of this brief, the Village

failed to comply with the mandatory jurisdictional 60-day

notice requirement of the Clean Water Act. In an effort to

evade the 60-day notice requirement, the Village invoked

42 U.S.C. § 7604(a)(3) which is not subject to an advance

notice requirement.

18

It was the Village’s failure to meet the 60-day notice

requirement that resulted in the Seventh Circuit’s affirm-

ing the dismissal of their complaint. See, Village of

Oconomowoc Lake, 24 F.2d at 963. Indeed, the Seventh

Circuit severely criticized the Village’s attempts to avoid

the 60-day notice requirement and wrote:

Why plaintiffs are unwilling to wait even 60

days — when an effort to jump the queue may

lead to outright dismissal of the case under Hal-

Istrom — eludes us. The Village filed suit only

three days after giving notice. To justify this

expedition, it invoked 42 U.S.C. § 7604(a)(3),

which is not subject to the 60-day rule. Although

this enabled it to sue 57 days sooner than it

could have done had it used § 7604(a)(1) as the

foundation of the suit, the strategy does little

besides illustrate the adage that haste makes

waste. (This saying predates the Clean Air Act

and shows that not all waste is within federal

jurisdiction.)

Id.

The Village ignores this portion of the Seventh Cir-

cuit opinion and instead attempts to fashion an issue

based upon the Seventh Circuit’s dicta concerning regula-

tion of groundwater discharges under the Clean Water

Act. However, the Seventh Circuit’s decision affirming

dismissal stands on its own without need to consider

whether groundwater discharges are subject to regulation

under the Clean Water Act.

Accordingly, the portion of the Seventh Circuit opin-

ion addressing groundwater is mere dicta and is not

appropriate for review by this Court. See, The Monrosa v.

Carbon Black, Inc., 359 U.S. 180 (1959); Belcher v. Stengel,

19

429 U.S. 118 (1976) (A writ of certiorari is not necessary if

the judgment below was clearly correct on another

ground.); Smith v. Butler, 366 U.S. 161 (1961) (“After full

argument and due consideration, it became manifest that

the course of litigation and the decisions in the [other]

courts did not turn on the issue on the basis of which

certiorari was granted”); Newsom v. Smyth, 365 U.S 604,

604-605 (1961) (Certiorari is not proper if it may become

evident that “the record does not adequately establish

that the [court below] found or was required to find that

there was presented to it the federal claim on which the

case was brought [to the Court].”)

Notwithstanding the Village’s attempt to characterize

the question presented for review as whether Clean

Water Act jurisdiction extends to groundwater dis-

charges, that aspect of the Seventh Circuit’s decision was

dicta. The basis of the Seventh Circuit opinion was sim-

ple. The Village failed to meet the express 60-day notice

requirement.

B. The Village Has Not Made A Good Faith Alle-

gation Regarding The Discharge Of Pollutants

To Waters of the United States.

When a defendant claims that jurisdiction is not pre-

sent, the obligation is on the plaintiff to demonstrate to

the court through actual proof that jurisdiction is present.

Western Transp. Co. v. Couzens Warehouse & Distributors,

Inc., 695 F.2d 1033, 1038 (7th Cir. 1982); St. Clair v. City of

Chico, 880 F.2d 199, 201 (9th Cir. 1989), cert. denied, 493

U.S. 993 (1989). Furthermore, the plaintiff’s allegation of

jurisdiction must be made in good faith. Gwaltney, 484

20

U.S. at 64; Public Interest Research Group, Inc. v. ELF

Atochem North America, Inc., 817 F. Supp. 1164, 1174

(D.N.J. 1993). Here, the record before the district court

unequivocally demonstrates that the Village’s allegations

have not been made in good faith.

The Clean Water Act only regulates the discharge of

pollutants to the waters of the United States (i.e., surface

waters). 33 U.S.C. § 1311(a). Even if this Court were to

accept the Village’s novel argument that the Clean Water

Act can regulate discharges to groundwater if it is hydro-

logically connected to surface water, the Village must still

make a good faith allegation that the Target Center will

discharge pollutants in such a manner. It has not done so.

The Village made a genera! allegation that stormwa-

ter discharges associated with the Target Center contain

pollutants that will be “expressed and discharged” into

waters of the United States. However, those allegations

are wholly unsubstantiated and have been expressly

refuted by the Village’s own expert.

Supplement No. 1 to the Storm Water Management

Report submitted by Target to the DNR indicated that

stormwater runoff from the facility “will be treated, as

needed, to-remove contaminants and then infiltrated to

recharge the groundwater.” (R.30:533) (emphasis added)

As stated, the retention pond is designed to remove con-

taminants and pollutants prior to the water being dis-

charged from the site. Since pollutants will be removed,

pollutants will not be conveyed by groundwater into

waters of the United States as alleged in the Complaint.

Even more compelling is the Village’s own expert, Dr.

Frank Jones, who testified that the Village’s allegation

suggesting that pollutants will be “expressed and dis-

charged” into waters of the United States is just not true.

Indeed, Dr. Jones admitted at his deposition on Septem-

ber 7, 1993, that no discharges will occur to surface water:

Q

@)

O

A

21

I invite your attention to Exhibit 45, Dr. Jones.

Is that a document that you authored as evi-

denced by your name at the top of the docu-

ment?

Yes, it is.

And what was the purpose of authoring the

document?

It was to provide an information summary

sheet on some of the items that I had investi-

gated or had investigated by others, or had

investigated by other individuals within Ger-

aghty & Miller.

Was one of the purposes to do a presentation at

a town meeting of the Town of Summit which

took place on August 11th, 1993?

Well, this was prepared before that, but I did

present it at the town meeting on August 11th.

Why did you appear at a town meeting on

August the 11th?

I was requested to.

On Page 2 of Exhibit 45 you state, “Even if the

groundwater is impacted it is not expected

that the contaminants in the groundwater will

impact the surrounding lakes and rivers

because the primary contaminants of concern

would be held to the soils or diluted before

reaching the surface waters,” is that your

opinion?

Yes.

Jones Dep. Tr. 163-64 (emphasis added) (R.49)

22

Thus, even if discharges to groundwater hydro-

logically connected to surface water are covered by the

‘Clean Water Act, the Village’s Complaint should still be

dismissed. The record clearly indicates that there will be

no direct or indirect discharge of pollutants into waters of

the United States. Indeed, the Village’s own expert has

already testified that the Village’s allegations to the con-

trary are just not true. Accordingly, the issue presented

for review is not properly raised by this record.

Finally, because the case was dismissed before a com-

plete factual record could be developed, there was no

opportunity for the Respondents to introduce evidence to

the district court concerning the effects of expanded fed-

eral Clean Water Act jurisdiction. If any point source

discharge to groundwater hydrologically connected to

surface water was covered by the Clean Water Act, nearly

every septic tank, sprinkler system and drainage ditch

would require a permit. Problems associated with such a

judicial expansion of the Clean Water Act were raised by

the Seventh Circuit in the concurring opinion and are

currently being debated by Congress. See, Village of

Oconomowoc Lake, 24 F.3d at 966. (Pet. A. 10a)

IV. REVIEW BY THIS COURT IS NOT WARRANTED

AT THIS TIME.

A. The Issue Presented for Review Has Not Been

Fully Developed By The Lower Courts.

The Village claims that the Seventh Circuit Court of

Appeals’ decision in this case is in conflict with “better

reasoned authorities.” (Petition 15) In fact, only three

23

reported cases have directly addressed the issue pre-

sented. In Kelley v. United States, 618 F. Supp. 1103, 1107

(W.D. Mich. 1985), the court concluded that “the unmis-

takably clear legislative history . . . demonstrate that

Congress did not intend the Clean Water Act to extend

federal regulatory and enforcement authority on ground-

water contamination.” The district court and Seventh Cir-

cuit Court of Appeals in this case both relied on Kelley.

The district court in Sierra Club v. Colorado Refining

Co., 838 F. Supp. 1428 (D. Colo. 1993) reached a contrary

result, however, that case is now on appeal. (Pet. A. 83a)

Finally, in McClellan Ecological Seepage Situation (MESS) v.

Cheney, 763 F. Supp. 431 (E.D. Cal. 1989), the court, on

remand, allowed plaintiffs to submit proof on whether

groundwater was hydrologically connected to surface

water and whether there was a discharge of pollutants.

That case however involved alleged seepage from haz-

ardous waste disposal pits to a nearby surface water.

Other cases, to the extent they have addressed the

issue at all, tend to support the Seventh Circuit Court of

Appeals’ opinion in this case. In Exxon Corp. v. Train, 554

F.2d 1310, 1329 (5th Cir. 1977), the Fifth Circuit reviewed

the Clean Water Act legislative history and concluded in

the context of isolated groundwater that, “As we read

these materials, the House, like the Senate, through the

bill would leave control of groundwater pollution exclu-

sively to the states.”

In Inland Steel Co. v. EPA, 901 F.2d 1419, 1422-23 (7th

Cir. 1990), the Seventh Circuit concluded that a discharge

through an injection well “might be within the scope of

the Act” but reserved judgment. The Seventh Circuit has

24

now addressed the issue by the opinion in this case.

Moreover, the discharges addressed in Inland Steel were

discharges through injection wells which, unlike storm-

water infiltration, are expressly regulated under the

Clean Water Act. See, 33 U.S.C. § 1342(b)(1)(D).

Thus, this is hardly a situation where the lower

courts have developed the law and defined a conflict

warranting the attention of this Court. This Court has

frequently noted that a conflict should be allowed to

ripen before being given consideration. In Maryland v.

Baltimore Radio Show, Inc., 338 U.S. 912, 918 (1950), Justice

Frankfurter noted:

It may be desirable to have different aspects of

an issue further illumined by the lower courts.

Wise adjudication has its own time for ripening.

The time for adjudication of this issue has not yet come.

B. The Issue Presented Has Not Been Resolved By

EPA And Is Now Being Reviewed By Congress.

Although the Village would have the Court be**»ve

that EPA has had a clearly articulated longstanding posi-

tion supporting the regulation of groundwater, that is

simply not true. In fact, EPA’s position in this case could

not even be articulated to the Seventh Circuit Court of

Appeals until February 15, 1994 because the Clinton

Administration’s position on the Clean Water Act reau-

thorization was not known until February 1, 1994.15 (Pet.

A. 26a).

13 This uncertainty is reflected in the fact that EPA and

other federal agencies have often taken positions contrary to the

yy ee ee ee ee ee ee See

25

Whether the Clean Water Act should be changed to

include groundwater within its scope is one of the issues

involved in the Clean Water Act reauthorization debate in

Congress. The 1994 Clean Water Act “rewrite bill,” HR

3948, would specifically amend the Clean Water Act to

include certain discharges to groundwater. Section 404 of

the bill provides:

Sec. 404. DISCHARGES INTO GROUND

WATER.

Section 402 (33 U.S.C. 1342) is amended by

adding at the end the following:

‘(r) Discharges into Ground Water.-

‘(1) General Rule.-For the purposes of this

section, any discharge of a pollutant into the

ground or ground waters shall be treated as a

discharge of a pollutant into the navigable

waters if-

‘(A) There is a reasonably foreseeable and

demonstrable direct hydrologic connection

between the ground waters and surface waters

in the proximity of the discharge;

‘(B) A greater than de minimis quantity of

the pollutant reasonably and demonstrably is

able to reach such surface waters; and

one now claimed by the Village. For example, in Inland Steel Co.,

901 F.2d 1419 (7th Cir. 1990), EPA took the position that the

injection of wastes into wells was not governed by the Clean

Water Act but rather by the Resource Conservation and Recov-

ery Act. In Kelley, 618 F. Supp. at 1103 and MESS, 763 F. Supp. at

431, other government agencies vigorously argued that dis-

charges to groundwater were not covered by the Clean Water

Act.

26

‘(C) No other federal law directly

addresses the activity resulting in the dis-

charge.’

If this issue is to be revisited, it should be revisited by

Congress, not by this Court.

Absent such a change, the existing language and

legislative history of the Clean Water Act indicates that i

discharges to groundwater are not within the scope of the |

Clean Water Act. Several attempts were made to include

discharges to groundwater in the 1972 Clean Water Act

Amendments but all such attempts were directly rejected

by both the House and Senate. See, Exxon Corp., 554 F.2d

at 1328. (The court provides a detailed review of the

legislative history associated with the Clean Water Act

and concludes that it is “inconceivable” that Congress

intended to grant EPA authority over groundwater dis-

charges.)

If Congress now wishes to revisit this issue, it can do

so. This Court should not, however, judicially expand the

Clean Water Act in the manner suggested by the Village

which would extend federal jurisdiction to nearly every |

septic tank, parking lot and lawn sprinkler system. aa |

+

CONCLUSION

Despite the Village’s attempt to frame the question

presented for review as involving a matter of federal

importance, the simple fact is that the Village failed to

meet the 60-day notice requirement of the Clean Water

Act. Having failed to meet the notice requirement, this

Court lacks subject matter jurisdiction over the case and

. . : pa YF TREE es — Prue. Sob peste so a SE gS OS

a ae - SRC GEES Oe AGT ERT ee I Ts NEE TO Ty Meee eT ee TN

27

is precluded from issuing the requested writ. Further-

more, due to the Village’s failure to meet the notice

requirement, its petition is improperly seeking review of

dicta contained in the Seventh Circuit Court of Appeals’

opinion.

Even assuming that the question presented by the

Village has merit, this case does not warrant review

because the issues have become moot and there is no

impact on surface waters presented by the facts of this

case. Accordingly, the Petitioner’s Writ for Certiorari

must be denied.

Paut G. KeEnt*

Topp E. PALMER

Counsel for City of

Oconomowoc

Jon P. AxELRop*

Counsel for Target Stores, a

Division of Dayton Hudson

Corporation

DeWrrt Porter, S.C.

Suite 600

Two East Mifflin Street

Madison, WI 53703

(608) 255-8891

*Counsel of Record

Bea 37 cis De ae tae

NEST ee es ee OL

ee ee ee on Vee

Se,

App. 1

Michael Best

& Friedrich

Attorneys at Law

[Letterhead Address Omitted in Printing]

Februar ., 1994

Char'_s R. Hammer, Esq.

Burenu of Legal Services

Wisc »ynsin Department of Natural Resources

Post Office Box 7921

Madison, Wisconsin 53707-7921

Re: WPDES Storm Water Discharge Permit

Target Midwest Distribution Center

Oconomowoc, Wisconsin

Dear Mr. Hammer:

As we agreed in our recent discussions, I am writing

to you to request the Department’s written determination

that the Target Midwest Distribution Center presently

under construction at Oconomowoc, Wisconsin will not

be required to apply for or obtain a Wisconsin Pollutant

Discharge Elimination System (“WPDES”) permit for the

discharge of storm water runoff from the facility when it

becomes operational. As you are aware, Target had ear-

lier provided notice to the Department of the proposed

construction activity prior to the commencement of con-

struction.

The distribution center facility is to be used by Target

Stores for the receipt and offloading of merchandise from

suppliers, the storage of that merchandise and the load-

ing and shipment of that merchandise to Target retail

App. 2

stores in the region. Incorporated into the design of the

facility are roof drain collection means for transporting

storm water to an on-site surface impoundment. The

surface impoundment also receives storm water flow

from the parking lot areas of the facility following the

treatment of that storm water runoff in a sand filtration

mechanism. The storm water accumulated in the surface

impoundment then exfiltrates to the groundwater in the

area. [|

We understand that the regulations for the imple-

mentation of a storm water discharge permitting program

in Wisconsin are presently under development. We

understand also that the Wisconsin regulations will be

based upon the federal storm water discharge regula-

tions. Under the federal regulations for the permitting of

storm water discharges, permits are required for facilities

having a “storm water discharge associated with indus-

trial activity” as that term is defined at 40 C.FR.

§122.26(b)(14) (1992).

Numerous categories of industries are identified in

the definition of a “storm water discharge associated with

industrial activity” which are required to apply for and

obtain a storm water discharge permit. Facilities in indus-

try categories having certain Standard Industrial Classi-

fication (“SIC”) codes, by definition, have storm water

discharges associated with industrial activity and are

required to apply for and obtain a storm water discharge

permit. Facilities in industry categories with certain other

SIC codes are required to apply for and obtain a dis-

charge permit only if the storm water discharge is from

an area of the facility or activity where material handling

equipment or activities, raw materials, intermediate

App. 3

products, final products, waste materials, by-products, or

industrial machinery are exposed to storm water. Facili-

ties in industry categories not identified by the SIC codes

are not, generally, required to obtain a storm water dis-

charge permit.

The SIC code from the 1987 Standard Industrial Classi-

fication Manual applicable to the Target Midwest Distribu-

tion Center is Industry No. 5311 for “Department Stores”

in Major Group 52 of Division G, Retail Trade in the SIC

system. This determination is based upon the description

of the retail trade division provided in the Standard Indus-

trial Classification Manual (1987) at pages 313-314 which

states that “[C]hain store warehouses are considered aux-

iliary to the retail establishment served and are classified

on the basis of the activity carried on by such retail

stores”.

Using the promulgated federal regulations and the

Standard Industrial Classification Manual (1987) as guides,

we conclude that the requirement to apply for and obtain

a storm water discharge permit is not applicable to the

Target Midwest Distribution Center. The Target Midwest

Distribution Center does not meet the criteria of any of

the subparagraphs (i)-(xi) of 40 C.F.R. 122.26(14) (1992) as

having a storm water discharge associated with industrial

activity. Subparagraphs (i) and (iii) - (v) of 40 C.FR.

122.26(a)(1) (1992) are also not applicable to the Target

facility. Therefore, the Target Midwest Distribution Cen-

ter should not be required to apply for and obtain a

discharge permit under the WPDES program in Wiscon-

sin for the discharge of storm water runoff at the facility.

App. 4

As we agreed, you will review the information pro-

vided in this letter and provide a written determination

concerning the non-applicability of the WPDES storm

water discharge program to the Target Midwest Distribu-

tion Center. If you have any questions regarding the

information provided, need additional information or if

you wish to discuss the Department’s proposed deter-

mination, please contact me as soon as possible. Thank

you for your assistance in this matter.

Very truly yours,

MICHAEL, BEST & FRIEDRICH

/s/ Donald F. Kiesling

Donald F. Kiesling

DFK /mam/ tar

cc: Pat Crane —- Target

Dean Wenger - Target

Jeff Appelquist — Target

David Luick — Target

oe ee ee ee ee eee

App. 5

State of Wisconsin\

DEPARTMENT OF NATURAL RESOURCES

(LOGO) : 101 South Webster Street

WISCONSIN Box 7921

DEPT. OF NATURAL Madison, Wisconsin 53707

RESOURCES DIRECT LINE 608-266-0911

George E. Meyer, Secretary TELEFAX 608-267-3579

Charles R. Hammer, TDD 608-267-6897

Attorney at Law

February 11, 1994 IN REPLY REFER TO: 8300

Mr. Donald F. Kiesling

Attorney at Law

Michael Best & Friedrich

100 East Wisconsin Avenue

Milwaukee, WI 53202-4108

SUBJECT: WPDES Stormwater Discharge Permit,

Target Midwest Distribution Center

Oconomowoc, Wisconsin

Dear Mr. Kiesling:

I am writing in response to your letter to me of

February 2, 1994 regarding the above-referenced matter. I

believe your letter accurately reflects the understanding

of the Department regarding the applicability to the Tar-

get Midwest Distribution Center of the Department's pro-

posed storm water administrative rules, subject to the

following qualifiers.

First, as you correctly state in your letter, the admin-

istrative rules to implement the storm water discharge

permitting program are still under development. The

App. 6

Department will ask the Natural Resources Board to

authorize hearings on the draft rules at its February

monthly meeting. Consequently, any judgment rendered

by us on the content of the administrative rules is one

made based on a provision that can conceivably change

by virtue of public input. I should note, however, that we

do intend to follow closely the federal listing of industry

types that require regulation. Consequently it is unlikely

that an industry presently not on the list requiring a

permit would be added through the hearing process.

Second, there will be thousands of facilities which

will ultimately be subject to the administrative rules and

anticipated general permits. The Department has not and

cannot make individual judgments regarding the appro-

priate SIC code for all such facilities. We must rely on the

facility owners to properly identify which SIC codes

apply to their facilities. Nevertheless, presuming that the

Target Midwest Distribution Center is appropriately clas-

sified as Industry No. 5311, we would agree that it does

not require a permit under our draft administrative code

as presently written.

Sincerely,

/s/ Charles R. Hammer

Charles R. Hammer

cc: Michael Witt WW/2

John Greene-DOJ

App. 7

Michael Best

& Friedrich

Attorneys at Law

[Letterhead Address Omitted in Printing]

September 14, 1994

Charles R. Hammer, Esq.

Bureau of Legal Services

Wisconsin Department of Natural Resources

Post Office Box 7921

Madison, Wisconsin 53707

Re: WPDES Storm Water Discharge Permit

Target Midwest Distribution Center

Oconomowoc, Wisconsin

Dear Mr. Hammer:

On February 2, 1994, I submitted a letter to you

providing information about the Target Midwest Distri-

bution Center at Oconomowoc, Wisconsin and requesting

the Department’s written determination that that facility

was not required to apply for or obtain a Wisconsin

Pollutant Discharge Elimination System (“WPDES”) per-

mit for discharge of stormwater run-off from the facility

once it became operational. In response to my request, I

received a letter from you dated February 11, 1994, in

which you agree with my conclusion that no WPDES

permit would be required for the facility. However, in

your letter you qualified your opinion with regard to the

fact that the administrative rules to implement the storm-

water discharge permitting program (Wis. Admin. Code

Ch. NR 216) were still under development.

App. 8

Since receiving your February 11, 1994 letter, the

Chapter NR 216 administrative rules were approved by

the Natural Resources Board at its June, 1994 meeting and

were approved by the Wisconsin Legislature. As a conse-

quence of these developments, I am writing again to

request the Department’s written determination that the

Target Midwest Distribution Center is not required to

apply for or obtain a WPDES permit for the discharge of

stormwater run-off from its facility.

If you have any questions regarding the information

provided, need additional information, or if you wish to

discuss the Department’s proposed determination, please

contact me as soon as possible. Thank you for your assis-

tance in this matter.

Very truly yours,

MICHAEL, BEST & FRIEDRICH

/s/ Donald F. Kiesling

Donald F. Kiesling

DFK/mam>

App. 9

State of Wisconsin\

DEPARTMENT OF NATURAL RESOURCES

(LOGO) 101 South Webster Street

WISCONSIN Box 7921

DEPT. OF NATURAL Madison, Wisconsin 53707

RESOURCES DIRECT LINE 608-266-0911

George E. Meyer, Secretary TELEFAX 608-267-3579

Charles R. Hammer, TDD 608-267-6897

Attorney at Law

September 15, 1994 IN REPLY REFER TO: 8300

Mr. Donald F. Kiesling

Attorney at Law

Michael Best & Friedrich

100 East Wisconsin Avenue

Milwaukee, WI 53202-4108

SUBJECT: WPDES Stormwater Discharge Permit,

Target Distribution Center

Dear Mr. Kiesling:

On September 14, 1994 you wrote to me regarding a

matter we had discussed in writing in February, 1994.

Your question in February was whether the Target Mid-

west Distribution Center located in Oconomowoc, Wis-

consin, would need to have a stormwater discharge

permit for its operation. This is a separate issue from

whether there should have been either state or federal

permit coverage for stormwater discharges associated

with construction of the facility.

My response, copy attached, is self-explanatory. Since

that time ch. NR 216, Wis. Adm. Code, the administrative

rule regulating stormwater discharges referenced in my

App. 10

February 11, 1994 letter, has received final approval from

this agency’s governing body, the Wisconsin Natural

Resources Board. The rules have also cleared, without

amendment, the legislative review process provided for

in ch. 227, Wis. Stats. The rules will become effective

upon publication on November 1, 1994. No changes will

occur between now and November 1. The time between

clearance of legislative review and the date of effective-

ness is associated with printing and publication needs.

While the public participation process referenced in my

letter of February 11, did result in changes to the content

of ch. NR 216, SIC Code No. 5311 was not added as an

industrial sector requiring stormwater permit coverage

for facility operation. Consequently, subject to one quali-

fication, if the Target Midwest Distribution Center is

appropriately classified under that Code number, no

stormwater discharge permit need be applied for nor

obtained. The one qualification is that § NR

216.21(2)(b)11., Wis. Adm. Code, does provide that this

Department may determine any facility not otherwise

subject to stormwater regulation to be a significant con-

tributor of pollutants, thus requiring coverage by a

stormwater discharge permit. The Department has made

no such determination regarding the Target Midwest Dis-

tribution Center.

Sincerely,

/s/ Charles R. Hammer

Charles R. Hammer

App. 11

No. 94-304

IN THE :

SUPREME COURT OF THE UNITED STATES

October Term, 1994

4

THE VILLAGE OF OCONOMOWOC LAKE,

Petitioner,

V.

DAYTON HUDSON CORPORATION, et al.,

Respondents.

¢

AFFIDAVIT OF MICHAEL BEGLIN

+

STATE OF WISCONSIN

)

) ss.

COUNTY OF WAUKESHA )

MICHAEL BEGLIN, being first duly sworn according

to law, deposes and says:

1. I am employed by Target Stores, a Division of

Dayton Hudson Corporation (“Target”), as the General

Manager of the Target Midwest Regional Distribution

Center at Oconomowoc, Wisconsin (“Distribution Cen-

ter”).

2. Construction of the Distribution Center was com-

pleted on April 6, 1994, when an occupancy permit was

issued by the City of Oconomowoc. Landscaping has also

been completed.

App. 12

3. The formal “Grand Opening” of the Distribution

Center occurred on July 14, 1994.

4. Approximately 370 people are presently

employed at the Distribution Center. The first shipments

into the facility began on June 6, 1994 and the first ship-

ments out of the facility began on July 17, 1994.

/s/ Michael Beglin

Michael Beglin

Subscribed and sworn to before me

this 15th day of September, 1994.

Notary Public, State of Wisconsin

My Commission is/expires:

App. 13

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF WISCONSIN

VILLAGE OF OCONOMOWOC

LAKE and TOWN OF SUMMIT,

Plaintiffs,

Vv. Case No.

DAYTON HUDSON 93-C-0797

CORPORATION, GEORGE E.

MEYER, Secretary, and the

WISCONSIN DEPARTMENT OF

NATURAL RESOURCES,

VALDUS V. ADAMKUS, Regional

Administrator, CAROL

BROWNER, Administrator,

and the U.S. ENVIRONMENTAL

PROTECTION AGENCY,

Defendants.

AFFIDAVIT OF JAY HOCHMUTH

STATE OF WISCONSIN )

) Ss.

COUNTY OF DANE )

JAY HOCHMUTH, being first duly sworn on oath,

deposes and says:

1. I am the Deputy Administrator of the Division

for Environmental Quality of the Wisconsin Department

of Natural Resources (“Division”).

App. 14

2. Among other things, I am a custodian of the

records of the Division including the records o. Sureau of

Waste Water Management which is part of the Division.

3. Attached hereto and incorporated herein as

Exhibit 1 are true and correct copies of the following

records of the Division:

A. Memorandum of agreement between

the State of Wisconsin Department of Natural

Resources and United States Environmental Pro-

tection Agency, Region V dated December 17,

1973.

B. Letter to then Governor Patrick J. Lucey

- dated February 4, 1974, from then EPA Adminis-

trator Russell E. Train delegating federal author-

ity to the State of Wisconsin to administer

federal water pollution control programs in Wis-

consin.

/s/ Jay Hochmuth

Jay Hochmuth

Subscribed and sworn to before

me this 17th day of September, 1994.

Notary Public, State of Wisconsin.

My Commission is/expires:

mene

pet tied ee bie > a So oe

App. 15 :

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF WISCONSIN

VILLAGE OF OCONOMOWOC

LAKE and TOWN OF SUMMIT,

Plaintiffs,

V. - Case No.

DAYTON HUDSON 93-C-0797

CORPORATION, GEORGE E.

MEYER, Secretary, and the

WISCONSIN DEPARTMENT OF

NATURAL RESOURCES,

VALDUS V. ADAMKUS, Regional

Administrator, CAROL

BROWNER, Administrator,

and the U.S. ENVIRONMENTAL

PROTECTION AGENCY,

Defendants.

AFFIDAVIT OF MICHELLE SCHUELLER

STATE OF WISCONSIN )

) ss.

COUNTY OF DANE )

MICHELLE SCHUELLER, being first duly sworn -

according to law, deposes and says:

1. I ama waste water specialist with the Wisconsin

Department of Natural Resources (“DNR”), Bureau of

Wastewater Management.

App. 16

2. The DNR Bureau of Wastewater Management

administers the State of Wisconsin’s construction storm-

water discharge permit program.

3. In 1976, Wisconsin was delegated authority by

the United States Environmental Protection Agency

(“U.S. EPA”) to administer and implement a point source

discharge elimination system permit program.

4. In addition to receiving authority to administer a

point source discharge elimination system permit pro-

gram, Wisconsin has been delegated authority to issue

“general” Wisconsin Pollution Discharge Elimination Sys-

tem (“WPDES”) discharge permits.

5. K “general” permit is essentially a set of stan-

dards that applies to a broad class of dischargers where

environmental protection can be achieved through a set

of general provisions that apply to all dischargers. The

state currently has _15 general permits that apply to about

800 industrial facilities. DNR is in the process of imple-

menting a general permit program for stormwater dis-

charges. See DNR briefing memo dated November, 1992,

which is distributed to general permit applicants.

(Attached as Exhibit A.) EPA has been kept advised of,

and concu in, the Wisconsin method of handling

permit applications while the state implements its pro-

gram.

6. Under the stormwater permit program, sources

need only submit a “Notice of Intent” application

(“NOI”). See, “Wisconsin’s DNR Stormwater Program”

sheet dated May 12, 1993. (Attached as Exhibit B.) Upon

receiving an NOI, the DNR will determine whether the

applicant’s discharging activities qualify for coverage

App. 17

under the general permit. If the Department determines

that the discharger’s activities qualify for coverage under

a general permit, the DNR will send written confirmation

acknowledging receipt of the NOI and a letter indicating

that the discharger will qualify for inclusion and regula-

tion under a general permit.

To date DNR has sent out notifications to approx-

imately 20,000 existing sources indicating they must sub-

mit NOI’s to DNR. To date DNR has received over 4,000

NOI’s for existing and new sources and have notified

them that their application has been received.

7. Upon request by the applicant, the DNR will

send a letter confirming receipt of the NOI application.

This letter states that in the view of the Department,

submittal of the NOI application satisfies the minimum

requirements of the Clean Water Act at this time.

8. On April 9, 1993, the DNR received from Target

Corporation a “Notice of Intent for Stormwater Discharge

Associated with Construction Activities under a WPDES

General Permit.” A true and correct copy of the April 9,

1993, NOI received from Target Corporation is attached

hereto as Exhibit C.

9. Along with an NOI, Target Corporation submit-

ted to DNR a “Stormwater Management Report for

Witcher Construction Company” describing the stormwa-

ter management techniques to be utilized at the Target

Distribution Center. A true and correct copy of that

report is attached as Exhibit D.

10. On April 22, 1993, the DNR issued a letter to

Witcher Construction Company, a construction contractor

App. 18

hired by Target Corporation to construct the Target Dis-

tribution Center. A true and correct copy of the April 22,

1993, letter is attached hereto as Exhibit E.

11. With its submittals, Target has done all that is

required by DNR to apply for a construction stormwater

permit.

12. To the best of my knowledge, with regard to the

operational WPDES permit that will be required of the

Target Distribution Center once the facility has been con-

structed, application for a permit need only be received

180 days prior to the facility’s initial discharge. A permit

application before such time is not required under Wis-

consin law. :

/s/ Michelle Schueller

Michelle Schueller

Subscribed and sworn to before

me this __. day of September, 1994.

Notary Public, State of Wisconsin.

My Commission is/expires:

Pre