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Illinois v. Milwaukee, City of

Citation: 9 ELR 20347
No. No. 77-2246, 599 F.2d 151/13 ERC 1049/(7th Cir., 04/26/1979) Aff'd

The Seventh Circuit Court of Appeals affirms the trial court's order requiring defendants to eliminate raw sewage overflows that ultimately reach Lake Michigan but reverses its imposition of effluent limitations on discharges from defendants' treatment plant more stringent than those contained in their current national pollutant discharge elimination system (NPDES) permits. The court of appeals rejects defendants' argument that the Federal Water Pollution Control Act (FWPCA) limits the relief that can be granted in an action brought under the federal common law of nuisance. The FWPCA Amendments of 1972 and 1977 do not preempt such common law remedies, and compliance with a discharge permit issued under the Act does not constitute a defense to such an action. Nor is theabatement relief that can be granted in such common law nuisance suits limited to the level of effluent limitation prescribed by the Act. The court then determines that the correct standard of proof for the issuance of injunctive relief against a polluting activity which endangers the public health is a preponderance of the evidence rather than the stricter "clear and convincing" evidence test. The court of appeals concludes that the portion of the lower court's order which requires defendants to eliminate all raw sewage overflows into Lake Michigan or its tributaries by July 1, 1986 and to construct a collection and treatment system to prevent raw sewage overflows through the municipal storm sewer system by December 31, 1989 is both reasonable and supported by the evidence of pathogen migration to Illinois water. Although the trial court had the authority under federal common law to require defendants to comply with effluent limitations more stringent than the statutory minima or those established by their state-issued discharge permits, the evidence before the court was not sufficient to justify the limitations imposed. The evidence upon which the court based its decision on this point consists of conclusory and unsupported expert testimony. There has been no factual showing that the more stringent effluent limitations are necessary to protect the health of Illinois residents.

A copy of an unpublished supplementary order evaluating in more detail the evidentiary support for the district court's findings of fact and imposition of more stringent effluent limitations is available from ELR (42 pp. $5.25, ELR Order No. C-1167).

Counsel for Plaintiff
William J. Scott, Attorney General
500 S. 2d St., Springfield IL 62701
(217) 782-1090

Joseph V. Karaganis, Sanford R. Gail, Special Ass't Attorneys General; Jeffrey K. Haynes
150 N. Wacker Dr., Suite 2500, Chicago IL 60606
(312) 782-1905

Counsel for Intervening Plaintiff State of Michigan
Frank J. Kelly, Attorney General; Robert A. Derengoski, Solicitor General; Thomas J. Emery, Ass't Attorney General
720 Law Bldg., Lansing MI 48913
(517) 373-7780

Counsel for Defendants
James B. Brennan, City Attorney; Michael J. McCabe, Ass't City Attorney
City Hall, 200 E. Wells, Milwaukee WI 53202
(414) 278-2607

Richard W. Cutler, Elwin J. Zarwell, Samuel J. Recht
Quarles & Brady
780 N. Water St., Milwaukee WI 53202
(414) 273-3700

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and HARPER, Senior District Judge.*