# Opposition Brief — Village of Oconomowoc Lake v. Dayton Hudson Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0279%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 513 U.S. 930 ## Text 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) ... 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0279%3A2. Public record. Not legal advice.