Opposition Brief — Stroh Die Casting Co. v. Atlantic States Legal Foundation, Inc.

Supreme Court, U.S.

F TY. Ee Dp

No. 97-479

In The

Supreme Court of the Hnited States

-+

October Term, !996

STROH DIE CASTING CO

ATLANTIC STATES LEGAL FOUNDATION, IN

On Petition for Writ of Certiorarit

{ nilted States Court of Appe Gis for ine seventfA Circuil

RESPONDENT?’S BRIEF IN OPPOSITION

DENNIS M. GRZEZINSKI]

Counsel of Record

LAW OFFICE OF

DENNIS M. GRZEZINSKI

Attorneys for Respondent

312 East Wisconsin Avenue

Suite 210

Milwaukee, Wisconsin 53202

(414) 289-9200

QUESTIONS PRESENTED

1. Does the federal court have jurisdiction over a citizen

suit under the Federal Water Pollution Control Act, 33 U.S.C.

§ 1251, et seg., where the citizen-plaintiff’s notice of intent to

sue identified the defendant’s discharge of die casting process

wastewater to the local sanitary sewer system in violation of

the categorical standards of 40 C.F.R. Chapter 464, where the

defendant’s discharges were not in compliance prior to the filing

of suit, where the defendant continued its discharges after suit

was commenced, and where the defendant’s remedy for the

noncompliance was a pretreatment system which was not put

into operation until more than 6 weeks after suit was filed and

was not effective to achieve compliance until approximately one

year had passed?

2. Does the federal court’s jurisdiction over a citizen suit

under the Federal Water Pollution Control Act, 33 U.S.C. § 1251,

et seq., extend to post-suit violations at an outfall or sampling

location not specifically identified in the citizen-plaintiff’s notice

of intent to sue, where instead of bringing its discharges into

compliance before suit was commenced, defendant waited for

more than six weeks after suit was filed before installing a

pretreatment system, at which time defendant began discharging

the wastewater to the sanitary sewer system at a newly defined

outfall, where the pretreatment system was not able to achieve

consistent compliance until approximately another year had

passed?

il

STATEMENT PURSUANT TO RULE 29.6

There are no parents or subsidiaries of Atlantic States Legal

Foundation, Inc.

ui

TABLE OF CONTENTS

Page

Questions Presented ............................ i

Statement Pursuant to Rule 29.6 ...............__. il

Table of Contents .............0.0............... ili

Table of Citations .............................. iv

Statement of the Case ........................... l

Reasons for Denying the Writ .................._. 7

I. The Seventh Circuit’s Reading Of The Clean Water

Act Notice Requirement Is Not In Conflict With

Hallstrom v. Tillamook County Or With The

Decisions Of Other Circuits. ............... 7

II. Petitioner’s Interpretation Of The Notice

Requirement Would Have Been Impossible For

Atlantic To Have Complied With, And Would

Enable Polluters To Insulate Themselves From

Citizen Suits Simply By Shifting Their Illegal

Pollution To A Different Outfall Or Sampling

Location, Without Curing Or Eradicating The

since aa a an 14

i 16

iv

Contents m

Page

TABLE OF CITATIONS

Cases Cited:

Atlantic States Legal Foundation v. United Musical

Instruments, 61 F.3d 473 (6th Cir. 1995) .......... 10

Citizens for a Better Environment v. Steel Co., 90 F.3d

1237 (7th Cir. 1996), cert. granted, __ U.S. ___, 1175S.

Ce, 1079, 137 L. Be. SO BIS CIGFT) oi cee cvceccs 10

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 108 S. Ct. 376, 98 L.

Foi ly Seer eee erent es

Hallstrom v. Tillamook County, 493 U.S. 20, 110 S. Ct.

304, 107 L. Ed. 2d 237 (1989), reh’g denied, 493 U.S.

SE Be ee es ee CE ee oo kere heweexnss 7,13

Public Interest Research Group of New Jersey, Inc. v.

Hercules, Inc., 50 F.3d 1239 (3rd Cir. 1995) ...... 8

Washington Trout v. McCain Foods, Inc., 45 F.3d 1351

SE EE hv wee uy ues sae ne Ren baa e wh ea 7,8

Statutes Cited:

ee SE a OE. so 6 nae 40 ee eek caNeesS i

See Oe ih a Ree eae dake ae eee ekaS l

RR Re Be: ere ee errr ree l

Contents

Page

Other Authorities Cited:

40 C.ER. § PINON Ss ein ch iba p nee ence 8,14

40 C.F.R. Chapter 464 0... i

]

STATEMENT OF THE CASE

This is a citizen suit brought by plaintiff Atlantic States

Legal Foundation, Inc. (“Atlantic”), under the Clean Water Act,

33 U.S.C. § 1365. Plaintiff seeks relief for defendant Stroh Die

Casting Co., Inc.’s (“Stroh”) repeated pre- and post-complaint

violations of permit limitations and federal regulations. Stroh

discharges pollutants from its Milwaukee facility into

Bluemound Tributary of the Menomonee River pursuant to a

permit issued by the Wisconsin DNR. (AA-5; AA-26).' On

November 8, 1988, Atlantic gave notice of Stroh’s alleged

violations of its DNR discharge permit as required by 33 U.S.C.

§ 1365(b). (AA-3; AA-14-20; AA-25) .

At some point in time, Stroh began discharging sonie of its

wastewater via the local sanitary sewer system to the Milwaukee

Metropolitan Sewerage District (“MMSD”), which discharges

from its treatment works into Lake Michigan. (AA-8; AA-27).

On April 13, 1989, Atlantic gave notice of Stroh’s alleged

violations relating to its discharges to MMSD, as required by

the Act. (AA-3; AA-21-23; AA-25). That notice stated in relevant

part:

Atlantic .. . will file a civil action in federal

district court, or amend the civil action

already filed.

This lawsuit will allege that the

Milwaukee County plant of Stroh Die

Casting Company, Inc., which discharges

1. References to the record are as follows: references to pages of

Petitioner's Appendix are denoted fo, | ee.

C-__); references to the separately bound Appellant’s Appendix before

the Seventh Circuit are denoted (AA-__); and references to any other

parts of the record are denoted (Rec.-docket #, and page).

2

process water into Lake Michigan via the

Milwaukee Metropolitan Sewerage District,

and which is located in Milwaukee,

Wisconsin, has violated and continues to

violate an “effluent standard or limitation,”

by discharging die casting process

wastewater to MMSD since October 31,

1988, without a pretreatment discharge

permit and in violation of the categorical

standards set forth in 40 C.F.R. Chapter

464....

After itemizing a series of specific violations of effluent

limitations at Outfall 3, the notice went on to state:

Notifier believes and alleges that a history

of effluent standard violations has continued

from before the violations listed to the

present. Discharger’s records certify that its

discharges were not in compliance as of

January 31, 1989, and state that discharger

proposed not to achieve compliance until

January 10, 1990. Such violations are known

to_the Discharger and may be included in

future legal actions by Notifier.

(AA-21-22).

After receiving Atlantic’s notice that Stroh was unlawfully

discharging its die casting process wastewater to MMSD without

a pretreatment discharge permit, Stroh obtained such a permit

from MMSD on July 28, 1989. It authorized Stroh to discharge

die casting wastewater to MMSD through Stroh’s Abcor

treatment unit, with discharges to be measured at the Abcor unit

sump pit defined as outfall 3, subject to specified effluent

3

limitations. The MMSD permit defined the sump pit for the parts

washer and deburring operation as outfall] 4.0. (AA-42-46).

An initial complaint brought by Atlantic, relating only to

violation of the DNR permit, was dismissed without prejudice

by District Judge Robert W. Warren on the court’s own motion

on November 14, 1989, because it appeared that neither party

wished to go forward with the matter. (AA-33-38).

On May 7, 1990, Atlantic filed an amended complaint,

adding allegations of subsequent violations, including those

relating to Stroh’s discharges to MMSD. On May 8, 1990, Judge

Warren reopened this case. Stroh moved to vacate the order

reopening the case and to dismiss the amended complaint. On

April 16, 1992, Judge Warren denied Stroh’s motions. Cross-

motions for summary judgment were filed and briefed later that

year.

Stroh’s MMSD discharge monitoring summary showed

violations of the zinc discharge limitations at outfall 3 in June

1989 and October 1989. (AA-55). On April 18, 1990, MMSD

issued a notice of violation to Stroh for its failure to have adhered

to a compliance schedule for installation of pretreatment

facilities:

Plans and specifications that were to have

been submitted to the DNR to allow for their

review by January 26, 1990 were not received

by DNR until March 9, 1990. Installation of

the pretreatment System was scheduled for

March 29, 1990 with compliance by April 10,

1990. However DNR approval of plans and

specifications was not received until March

30, 1990 and installation and compliance is

not expected until late May.

(AA-56).

4

On May 29, 1990, Stroh wrote MMSD, explaining why

Stroh had failed to meet the April 10, 1990 deadline for start up

of the wastewater treatment system with which Stroh hoped to

achieve compliance with its permit and with the categorical

standards which the permit implemented. Stroh stated:

We realize that we are behind schedule again.

The problems that we encountered after our

May 4th meeting were unforeseeable and

directly responsible for delaying start-up

until May 30th, the date by which we were

supposed to be in compliance. Once start-up

occurs though we anticipate no further

problems and hope to be in compliance

within a week.

(AA-58-59).

Effective July 1, 1990, Stroh abandoned MMSD outfall 3

and discharged all its industrial process wastewater through what

became defined in October 1990 as MMSD outfall 4, defined as

the sampling station located downstream of its pretreatment

system. (AA-65-66). Stroh’s August 28, 1990 baseline

monitoring report regarding operation of the new pretreatment

system stated that Stroh’s die casting wastewater “is pumped

through an Abcor ultrafiltration unit to remove oil and grease.

The filtered effluent from the Abcor unit is then pumped to the

new wastewater pretreatment system to remove the zinc and

phenols.” (AA-82). The Baseline Monitoring Report included a

facility diagram confirming that the Abcor Unit discharge was

now rerouted to outfall 4, where Stroh repiped its process

wastewater to a single outfall. (AA-94). After reporting that all

three samples taken of the new system’s discharges during July

1990 were in violation of one or more effluent limitations (zinc,

lead and phenols), Stroh’s President and its consulting engineer

certified:

5

The data submitted in this report shows that

the process wastewater generated at Stroh

Die Casting is not consistently in compliance

with applicable discharge standards. This

information is, to the best of my knowledge

and belief, true, accurate, and complete.

(AA-89, 91-92).

Stroh’s discharges from its new pretreatment system, at

newly defined outfall 4, continued to intermittently violate its

permit limitations, and MMSD issued a notice of noncompliance

to Stroh on March 27, 1991, relating to discharges in October

1990, November 1990 and January 1991. A Subsequent notice

of noncompliance was issued on June 24, 1991, relating to a

discharge on May 13, 1991, in excess of the zinc limitation.

(AA-95-98- AA-101-102). Stroh did not dispute that it was in

noncompliance, and wrote MMSD on July 9, 1991, describing

its efforts “to alleviate” the cause of the May 13, 199]

exceedance of its permit limits. The letter stated that the

equipment which Stroh planned to use to deal with the problem

was scheduled to be installed by July 31, 1991. (AA-99-100;

AA-103-104).

As a result of Stroh’s noncompliance, MMSD published a

notice in the Milwaukee Journal on March 29, 1992, which lists

Stroh as one of 15 industrial users which were in significant

noncompliance during 1991, pursuant to the criteria of

applicable regulations. (AA-1 10).

Meanwhile, Stroh continued to discharge nonprocess water

to the storm sewer pursuant to its DNR permit. In its Discharge

Monitoring Report (DMR) received by the DNR on April 16,

1992, Stroh reported discharging 11 milligrams per liter of oil

and grease at DNR storm sewer outfall 003 on February 6, 1992,

6

compared to the 10 milligrams per liter daily maximum limit of

its permit. Stroh alleged that the sample result was in error, and

the DMR contained the following notation: “Note: Attached lab

report shows lab process error.” (AA-107). However, no such

report was found in the DNR file. (Rec. 26, p. 8). To support its

assertion that the lab report was in error, Stroh submitted a letter

from the lab dated May 13, 1992. The letter stated in relevant

part:

As part of the method, an oil standard of

known concentration is analyzed along with

the samples to determine the accuracy of the

analyses. The standard that was run on

February 27 had a recovery of 50%. This is

below our acceptance level. This could

indicate that there was a problem with the

O&G analyses that day, meaning that the

results for your two samples tested that day

may not be accurate.

(AA-108). On March 22, 1996, District Judge Rudolph T. Randa

granted Stroh’s motion and denied Atlantic's motion. The district

court ignored Stroh’s continued discharges at MMSD outfall 3

for more than six weeks after the amended complaint was filed,

during a period when Stroh had admitted its inability to comply

with the categorical standards, and ruled that Stroh’s discharges

at MMSD outfall 4 were beyond the scope of Atlantic’s notice

and therefore not part of the action. For those reasons, the district

court held that Stroh was not an ongoing violator with respect

to discharges to MMSD. With respect to Stroh’s discharges to

the Bluemound Tributary regulated by the DNR, the district court

held that a “faulty” lab test could not be the basis for a violation,

ignoring that the lab's letter indicated that the sample report

probably understated the actual concentration of oil and grease

in the sample. Judgment of dismissal was entered the same date.

7

On appeal, the Seventh Circuit found that Atlantic’s pre-

suit notice fully complied with the requirements of the Act and

regulations. It further found that the notice was sufficient to

encompass Stroh’s post-complaint discharges of die casting

wastewater at newly numbered outfall 4, and that “the violation

had certainly not ceased by the time the amended complaint

was filed.” (B-12). With respect to the discharges at DNR outfall

3, the Seventh Circuit found the district court to have erred in

granting summary judgment to Stroh on disputed facts. (B-14).

Accordingly, the Seventh Circuit reversed the decision of the

district court and remanded the case.

REASONS FOR DENYING THE WRIT

:.

THE SEVENTH CIRCUIT’S READING OF THE

CLEAN WATER ACT NOTICE REQUIREMENT IS NOT

IN CONFLICT WITH HALLSTROM vy. TILLAMOOK

COUNTY OR WITH THE DECISIONS OF OTHER

CIRCUITS.

The petition asserts that the Seventh Circuit's decision

conflicts with the court’s interpretation of the notice requirement

in Hallstrom v. Tillamook County, 493 U.S. 20, 26, 110 S. Ct.

304, 308-09, 107 L. Ed. 2d 237 (1989), reh 'g denied, 493 U.S

1037, 110 S. Ct. 761 (1990), and with the decisions of other

circuits. In fact, as the Seventh Circuit correctly noted, Hallstrom

“said nothing about the content of the notice.” (B-9). There is

no contention here that Atlantic failed to send its notice to any

of the parties entitled to receive it, or failed to wait the required

60 days before filing suit, and there is no conflict with Hallstrom.

Nor does this case raise any conflict between the circuits.

In Washington Trout v. McCain Foods, Inc.. 45 F.3d 1351 (9th

8

Cir. 1995), the Ninth Circuit affirmed dismissal because the pre-

suit notice failed to adequately identify the organizations which

brought the suit as plaintiffs, as required by 40 C.F.R. § 135.3(a).

There is no contention here that Atlantic failed to meet these

requirements, and no conflict with Washington Trout.

Petitioner argues that this case conflicts with Public Interest

Research Group of New Jersey, Inc. v. Hercules, Inc., 50 F.3d

1239, 1249 (3rd Cir. 1995), which held that both pre-suit and

post-complaint violations of the same type (same parameter,

same outfall) as a violation included in the plaintiff’s notice

letter may be included in the citizen suit. The Third Circuit

reasoned that such violations were related to or represented a

continuation of violations identified in the notice, and that their

inclusion in a citizen suit was required by the concept of

“complete compliance” underlying Gwaltney of Smithfield, Ltd.

v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S. Ct.

376, 98 L. Ed. 2d 306 (1987). In short, the Third Circuit

recognized that “ ‘complete compliance’ should incorporate the

correction of all such interconnected violations.” Hercules, supra

at 1252.

Petitioner complains that the Seventh Circuit has gone

beyond or abandoned the Third Circuit’s “outfall-by-outfall”

approach. In Hercules, one of defendant’s outfalls discharged

to the Delaware River, the other to Clonmell Creek. 50 F.3d at

1242. Achieving complete compliance at an outfall would

therefore have required the defendant to bring all of its

discharges into a particular waterway into compliance. Here,

more than six weeks after the complaint was filed, Stroh diverted

its contaminated wastewater from one outfall to another, without

bringing its discharges to the sanitary sewer system into

compliance. While the outfall or sampling point changed, Stroh’s

contaminated wastewater continued to be discharged into the

same sanitary sewer system both before and after the diversion.

9

Under these circumstances, the Seventh Circuit

appropriately treated Stroh’s post-complaint discharges at outfall

4 as related to or interconnected with the pre-complaint

discharges identified in Atlantic’s notice:

We do not read the Third Circuit as

establishing an inflexible rule that would

require outfall-by-outfall notice in all cases.

It was not faced with a case where the alleged

polluter, upon receiving a notice about one

offending outfall, simply redirected the

Stream of contaminated water to another

outfall. The key to notice is to give the

accused company the opportunity to correct

the problem. Here, there is no question that

Atlantic’s April 1989 notice sufficiently

informed Stroh about Atlantic’s claim that its

handling of the die Casting wastewater did

not comply with the statute. Stroh promptly

secured a permit that covered exactly these

discharges, under the outfall numbered 3 in

the first MMSD permit. It began construction

of a treatment facility, which it completed in

June of 1990 (at least a month after the

amended complaint was filed.). It then re-

routed the very same die Casting wastewater

to its newly numbered outfall 4. Moreover,

it admitted in its May 29, 1990 letter to the

MMSD that it was not in compliance and

attempted to explain why it missed its

deadline for its wastewater treatment system.

These are not the actions of a company that

has not received enough information for

purposes of the statutory notice provisions

of the Act.

(B-10).

10

Petitioner further asserts that this case conflicts with Atlantic

States Legal Foundation v. United Musical Instruments, 61 F.3d

473 (6th Cir. 1995), which applied the notice requirements of

the Emergency Planning and Community Right to Know Act of

1986 (“EPCRA”). The Sixth Circuit held that EPCRA did not

allow a citizen suit for past failures to file toxic release reporting

forms that had been cured by filing of the forms before

commencement of the action.” The Sixth Circuit further decided

that the plaintiff’s pre-suit notice referring to defendant’s

violation of reporting duties for calendar years 1987-1990 did

not provide jurisdiction for plaintiff to sue for violation of the

defendant’s independent reporting duty for calendar year 1991.

Whether the Sixth Circuit was correct in finding that a

defendant’s duty to file a report under EPCRA in a subsequent

year needed to be separately noticed is not at issue in this Clean

Water Act case. Regardless of whether the Sixth Circuit decision

under EPCRA is correct, there is no conflict between it and the

Clean Water Act cases decided by the Third and Seventh Circuits.

Unlike the independent pre-suit 1991 reporting violation

found to be outside the scope of the EPCRA notice in United

Musical Instruments, Stroh’s post-complaint discharges at

MMSD outfall 4 were related to and interconnected with the

pre-complaint discharges identified in Atlantic’s Clean Water

Act notice. The post-complaint discharges represented nothing

less than the continuation of Stroh’s discharge of die casting

process wastewater to MMSD in violation of Clean Water Act

categorical standards — simply at a newly-defined sampling

location, retroactively defined in October 1990 as “outfall 4”.

2. Interpretation of EPCRA’s citizen suit provision is before the

Court in Docket 96-643, reviewing Citizens for a Better Environment v.

Steel Co., 90 F.3d 1237 (7th Cir. 1996), cert. granted, __ U.S. __, 1175S.

Ct. 1079, 137 L. Ed. 2d 214 (1997).

1]

They represented Stroh’s ongoing, continuing violation, which

continued long after suit had been commenced.

The Court noted in Gwaltney that “the purpose of notice to

the alleged violator is to give it an Opportunity to bring itself

into complete compliance with the Act and thus likewise render

unnecessary a citizen suit.” 484 U.S. at 60, 108 S. Ct. at 383.

The defendant in Gwaltney was concerned that failure to require

proof rather than allegations of ongoing violations would permit

citizen-plaintiffs whose allegations of ongoing noncompliance

become false at some point in the litigation, because the

defendant begins to comply with the Act, to nevertheless press

their suit to conclusion. The Court’s response to this concern

recognized that “complete compliance” is not achieved unless

all violations connected to the noticed violations have been

remedied:

Longstanding Principles of mootness,

however, prevent the maintenance of Suit

when “there is no reasonable expectation that

the wrong will be repeated.” In seeking to

have a case dismissed as moot, however, the

defendant’s burden “is a heavy one.” The

defendant must demonstrate that it is

“absolutely clear that the allegedly wrongful

behavior could not reasonably be expected

to recur.” Mootness doctrine thus protects

defendants from the maintenance of Suit

under the Clean Air Act based solely on

violations wholly unconnected to any present

or future wrongdoing, while it also protects

plaintiffs from defendants who seek to evade

Sanction by predictable “protestations of

repentance and reform.” (citations omitted)

Gwaltney, supra, 484 U.S. at 66, 108 S. Ct. at 386.

12

The concurring opinion of Justice Scalia, in which Justices

Stevens and O’Connor joined, provides further insight into what

it means for a defendant “to be in violation” of the Clean Water

Act on the day suit was brought. That opinion provides further

support for the Third and Seventh Circuit’s inclusion within the

scope of a citizen suit of violations which are related to or

interconnected with the violations in the pre-suit notice. Justice

Scalia wrote:

In my view, therefore, the issue to be

resolved by the Court of Appeals on remand

of this suit is not whether the allegation of a

continuing violation on the day suit was

brought was made in good faith after

reasonable inquiry, but whether the petitioner

was in fact “in violation” on the date suit was

brought. The phrase in Sec. 505(a), “to be in

violation,” unlike the phrase “‘to be violating”

or “to have committed a Violation,” suggests

a State rather than an act — the opposite of a

state of compliance. A good or lucky day is

not a state of compliance. Nor is the dubious

state in which a past effluent problem is not

recurring at the moment but the cause of that

problem has not been completely and clearly

eradicated. When a company has violated an

effluent standard or limitation, it remains, for

purposes of Sec. 505(a), “in violation” of that

standard or limitation so long as it has

not put in place remedial measures that

clearly eliminate the cause of the violation.

It does not suffice to defeat subject matter

jurisdiction that the success of the attempted

remedies becomes clear months or even

weeks after the suit is filed. Subject matter |

13

jurisdiction “depends on the state of things

at the time of the action brought”; if it existed

when the suit was brought, “subsequent

events” cannot “oust[]” the court of

jurisdiction.

Thus, I think the question on remand

should be whether petitioner had taken

remedial steps that had clearly achieved the

effect of curing all past violations by the time

Suit was brought.

Id., 484 U.S. at 69-70, 108 S. Ct. at 387-88.

Here, Stroh was not able to bring its die Casting process

wastewater discharges into compliance with categorical

Standards until more than a year after Atlantic’s amended

complaint was filed. Until then, while Stroh had obtained a

permit, it had not achieved complete compliance for the

violations in Atlantic’s notice — it was still unable to meet the

limitations established by the permit and by categorical

standards. For more than six weeks after the complaint was filed,

Stroh’s die casting process discharges continued to go to the

sanitary sewer system through outfall 3; thereafter they went to

the sanitary sewer system through outfall 4, which wasn’t even

defined in Stroh’s permit for several additional months. The

Seventh Circuit’s ruling that those discharges were within the

scope of Atlantic’s citizen suit correctly follows this Court’s

guidance in Gwaltney and does not conflict with Hallstrom or

‘the decisions of other circuits.?

3. Review of the “jurisdictional” issue presented by Stroh relating

to the scope of Atlantic’s notice regarding discharges to MMSD would

affect only the scope of this action, not the district court’s jurisdiction

(Cont'd)

14

Il.

PETITIONER’S INTERPRETATION OF THE

NOTICE REQUIREMENT WOULD HAVE BEEN

IMPOSSIBLE FOR ATLANTIC TO HAVE COMPLIED

WITH, AND WOULD ENABLE POLLUTERS TO

INSULATE THEMSELVES FROM CITIZEN SUITS

SIMPLY BY SHIFTING THEIR ILLEGAL POLLUTION

TO A DIFFERENT OUTFALL OR SAMPLING

LOCATION, WITHOUT CURING OR ERADICATING

THE POLLUTION ITSELF.

Petitioner argues that Atlantic’s notice was required to

identify outfall 4 as the location of Stroh’s post-complaint

violations in order to include them in its citizen suit. The

regulation in question, 40 C.F.R. § 135.3(a), actually only

requires sufficient information to enable the recipient to identify

the location, which the notice did provide. Moreover, Stroh’s

argument would lead to absurd results.

The petition asserts at page 15 that “before Atlantic States

filed its amended complaint in May, 1990, it could have noticed

the violations it now claims — and Stroh, the EPA, and the DNR

(Cont'd)

over the action. There is no dispute that Stroh’s post-complaint discharges

at outfall 3 are within the scope of Atlantic’s notice. As the record

indicates, Stroh was unable to bring its die casting wastewater discharges

into complete compliance for more than a year after the amended

complaint was filed. Clearly, based on Stroh’s failure to remedy the cause

of its unlawful discharges at outfall 3, Stroh was “in violation” at outfall

3 on the date the amended complaint was filed and for more than six

weeks later. Thus, the district court has jurisdiction over this case, based

on the outfall 3 discharges alone, regardless of whether the outfall 4

discharges are included. In addition, Atlantic’s claims relating to Stroh’s

unlawful discharges to the Bluemound tributary of the Menomonee River,

as regulated by its Wisconsin DNR permit, remain for adjudication.

15

could have addressed them before suit.” In fact, any notice before

July 1, 1990 alleging die casting wastewater discharge violations

at “outfall 4” would have been in error, and any such notice

before October 1990 would have required Atlantic to be

clairvoyant. It wasn’t until July 1, 1990 that Stroh abandoned

outfall 3, rerouted its die casting wastewater through the newly-

installed pretreatment system, and began to discharge die casting

wastewater through “outfall 4.” Stroh’s permits from the

sewerage district didn’t even define the new outfall 4 until

October 1990.‘ No enforcement action could have been taken

by government agencies relating to die casting wastewater

discharges at outfall 4 before the amended complaint was filed

for precisely the same reason — there weren't any such

discharges there until July 1, 1990.

No purpose is served by requiring Atlantic, or other citizen-

plaintiffs, to correctly guess in advance either the locations to

which polluters will decide to pipe their unlawful post-complaint

discharges or the specific numbers which regulators may assign

in the future to monitoring or sampling locations. Moreover,

under Stroh’s argument regarding notice, all any polluter need

do to bar a citizen suit is to call a plumber and shift its illegal

pollution to a different outfall — without curing or eradicating

the pollution itself. With enough pipes and enough plumbers,

any polluter could insulate itself from citizen enforcement

forever. These results are contrary to the language of the Clean

Water Act, to the requirements of the implementing regulation,

and to the Court’s guidance in Gwaltney. Nevertheless, those

are the results of petitioner’s arguments for review.

4. Compare the 1989 definitions of outfalls 4.0, 4.1, and 4.2 with

the October 1990 definition of outfall 4. (B-4 and B-5). The sewerage

district could just as easily have decided in October 1990 to renumber

the “surviving” Stroh outfall as 3 and the “abandoned” outfall as 4.

16

CONCLUSION

This case does not merit further review by this Court. For

the reasons given above, Stroh’s Petition should be denied.

Respectfully submitted,

DENNIS M. GRZEZINSKI

Counsel of Record

LAW OFFICE OF

DENNIS M. GRZEZINSKI

Attorneys for Respondent

312 East Wisconsin Avenue

Suite 210

Milwaukee, Wisconsin 53202

(414) 289-9200