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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff and Counter-Defendant, v. STATE OF MICHIGAN,
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

Case No. 77-71100 Hon. Sean F. Cox

Defendant, Cross-Plaintiff and Cross-Defendant v. CITY OF DETROIT, a municipal corporation and DETROIT WATER AND SEWERAGE DEPARTMENT, Defendants and Cross-Plaintiffs, v. ALL COMMUNITIES AND AGENCIES UNDER CONTRACT WITH THE CITY OF DETROIT FOR SEWAGE TREATMENT SERVICES, et al.

CITY OF DETROIT AND THE DETROIT WATER AND SEWERAGE DEPARTMENTS MOTION TO DISMISS AND FOR RELIEF FROM THE SECOND AMENDED CONSENT JUDGMENT Defendants and Cross-Plaintiffs City of Detroit and Detroit Water and Sewerage Department (collectively DWSD) move this Court, pursuant to (1) the February 11, 2011 Stipulated Order, (2) this Courts inherent authority to modify its consent decrees, and (3) Fed. R. Civ. P. 60(b)(5), for an order dismissing this action with prejudice and substituting the requirements of a recent Administrative Consent Order between the Michigan Department of Environmental Quality and DWSD, effective July 21, 2011, for the requirements of the Second

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Amended Consent Judgment entered in this action. A copy of the Administrative Consent Order is attached hereto as Exhibit A. In support of this motion, DWSD relies on the accompanying brief in support.

DYKEMA GOSSETT PLLC

DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

By: s/Robert J. Franzinger Robert J. Franzinger (P25539) Mark D. Jacobs (P41878) Attorneys for City of Detroit 400 Renaissance Center Detroit, MI 48243 (313) 568-6690 rfranzinger@dykema.com Date: July 25, 2011

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff and Counter-Defendant, v. STATE OF MICHIGAN,
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

Case No. 77-71100 Hon. Sean F. Cox

Defendant, Cross-Plaintiff and Cross-Defendant v. CITY OF DETROIT, a municipal corporation and DETROIT WATER AND SEWERAGE DEPARTMENT, Defendants and Cross-Plaintiffs, v. ALL COMMUNITIES AND AGENCIES UNDER CONTRACT WITH THE CITY OF DETROIT FOR SEWAGE TREATMENT SERVICES, et al.

BRIEF IN SUPPORT OF CITY OF DETROIT AND THE DETROIT WATER AND SEWERAGE DEPARTMENTS MOTION TO DISMISS AND FOR RELIEF FROM THE SECOND AMENDED CONSENT JUDGMENT

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CONCISE STATEMENT OF ISSUES PRESENTED Whether this Court should enter an order (1) dismissing this action with prejudice, (2) incorporating the requirements of the recently entered Administrative Consent Order between the City of Detroit and the Detroit Water and Sewerage Department (collectively DWSD) and the Michigan Department Of Environmental Quality, and substituting the requirements of the Administrative Consent Order for the requirements of the Second Amended Consent Judgment.
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

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CONTROLLING AND MOST APPROPRIATE AUTHORITY Defendants and Cross-Plaintiffs City of Detroit and Detroit Water and Sewerage Department (collectively DWSD) rely on the February 11, 2011 Stipulated Order, this Court's inherent authority to modify its consent decrees, Fed. R. Civ. P. 60(b)(5), and the authorities cited in their Brief in Support of Motion to Dismiss and For Relief From the Second Amended Consent Judgment.
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

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Defendants and Cross-Plaintiffs City of Detroit and Detroit Water and Sewerage Department (collectively DWSD) submit this brief in support of their motion brought pursuant to (1) the February 11, 2011 Stipulated Order, (2) this Court's inherent authority to modify its consent decrees, and (3) Fed. R. Civ. P. 60(b)(5) for an order dismissing this action with prejudice, incorporating the requirements of the recently entered Administrative Consent Order (ACO) between the Michigan Department of Environmental Quality (DEQ) and DWSD and
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

substituting them for the requirements of the Second Amended Consent Judgment. A copy of the ACO is attached hereto as Exhibit A. PROCEDURAL BACKGROUND AND STATEMENT OF FACTS The United States Environmental Protection Agency (EPA) brought this action in May 1977 against the State of Michigan, the City of Detroit, and DWSD. The State of Michigan was later realigned as a party plaintiff because its interest in the subject matter of this case parallels EPAs. EPAs complaint alleged that the Detroit Waste Water Treatment Plant (WWTP) was in violation of the Federal Clean Water Act of 1972, 33 U.S.C. 1251, et seq., (the CWA). On September 14, 1977, the Court entered a Consent Judgment establishing a compliance schedule for DWSD to address and correct the CWA violations. In 1997, DWSD fell out of compliance with the requirements of its National Pollutant Discharge Elimination Solution (NPDES) permit and, in August 1997, it reported certain violations of that permit to the DEQ. (DE 1847, at 3.) Following that report, the Court appointed a committee to investigate the causes of the violations, and the committee completed its report of the causes of the non-compliance in January 2000. (DE 1847-8, January 12, 2000 Report of Committee) Based on the findings of that report, the Court entered an Order appointing Detroit Mayor Dennis Archer as Special Administrator of DWSD and granting him

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extraordinary powers to take actions necessary to bring DWSD into compliance. (DE 1848-4, at 3.) On April 25, 1980, after a test revealed that DWSD was not in compliance with the Consent Judgment, an Amended Consent Judgment was entered modifying the schedule for DWSD to achieve compliance. By 1984, DWSD had satisfied the requirements of the Amended Consent Judgment and the State of Michigan Water Resources Commission issued a new
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

NPDES permit to DWSD. The Court, however, retained jurisdiction over the DWSD sewerage system and the WWTP. On August 30, 2000, the Court entered a Second Amended Consent Judgment (SACJ) again establishing a compliance schedule for DWSD. (DE 1688.) The SACJ superseded the Amended Consent Judgment. In December 2001, the Court transferred the authority of the Special Administrator to Detroit Mayor Kwame Kilpatrick. (DE 1848-5, at 2.) In 2006, the Court terminated the Order Appointing Special Administrator, finding that DWSD had complied with its requirements, but the Court retained full jurisdiction of the case because all of the requirements of the SACJ had not been met. In September 2009, more compliance problems arose and, as a result, DEQ issued a notice of violation. From this point forward long-term compliance again became a central focus of DWSD. On February 11, 2011, the Court entered a Stipulated Order that mandated a more autonomous Detroit Board of Water Commissioners (the Board). The Stipulated Order,

moreover, authorized any party to file a motion to dismiss this action based on demonstrating that DWSD is in substantial compliance with its current NPDES Permit and the SACJ.

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Since entry of the Stipulated Order, the Board has been restructured consistent with the requirements of that order. DWSD also has made substantial progress toward achieving full compliance with the requirements of the NPDES Permit and the SACJ. Finally, DWSD has agreed with the DEQ to the ACO, the terms of which are specifically tailored to bring DWSD to full CWA and NPDES Permit compliance. ARGUMENT
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

I.

PURSUANT TO THE STIPULATED ORDER, THIS COURT SHOULD ENTER AN ORDER DISMISSING THIS ACTION WITH PREJUDICE, INCORPORATING THE REQUIREMENTS OF THE RECENTLY ENTERED ADMINISTRATIVE CONSENT ORDER AND SUBSTITUTING THEM FOR THE REQUIREMENTS OF THE SECOND AMENDED CONSENT JUDGMENT.______ The February 11, 2011 Stipulated Order expressly provided that any party could move to

dismiss this action based on a showing of substantial compliance with the NPDES Permit and the prior consent judgments. This Court, moreover, possesses inherent authority to modify its consent decrees, such as the SACJ, with or without an express reservation of its authority to do so in the consent decree itself. See United States v. Swift & Co., 286 U.S. 106, 114 (1932); Picon v. Morris, 933 F.2d 660, 662 (8th Cir. 1991). Even under the express terms of the SACJ, substantial compliance by DWSD does not require satisfaction of every SACJ mandate: [t]he Court and the parties recognize that certain goals of the compliance program and certain specific projects described in this [SACJ] will not be accomplished or completed for a substantial period of time. See SACJ, IX(D).

Accordingly, both the Stipulated Order and the SACJ contemplate that DWSD need not wait until the accomplishment of all goals or the completion of all projects set forth in this [SACJ] before seeking the termination thereof[.] Id. DWSD has made substantial progress toward achieving full compliance with the SACJ and the NPDES Permit. But, ultimately, the SACJ (1) has proven to be an insufficient vehicle 3

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for ensuring compliance with the CWA, and (2) is based, to a large extent, on facts and conditions that have changed during the more than 11 years since it was entered. Because, inter alia, the ACO is specifically addressed to more current conditions and represents the more customary method of addressing CWA compliance, the ACO provides a more suitable vehicle for bringing DWSD into full, long-term compliance with the CWA. DWSDs agreement to the ACO, plus its continuing progress toward achieving full compliance, show that it is no longer
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

necessary or optimal for this Court to retain jurisdiction over DWSD operations as the administrative process generally and the ACO specifically are better suited to achieving that purpose. For the foregoing reasons, DWSD respectfully submits that this Court should enter an order that dismisses this action with prejudice and incorporates and orders DWSD to comply with the requirements of the ACO, in substitution for the requirements of the SACJ. II. PURSUANT TO FED. R. CIV. P. 60(b)(5), THE DISMISSAL ORDER SHOULD RELIEVE DWSD FROM THE REQUIREMENTS OF THE SECOND AMENDED JUDGMENT BY REPLACING THEM WITH AN ORDER REQUIRING DWSD TO COMPLY WITH THE REQUIREMENTS OF THE ADMINISTRATIVE CONSENT ORDER._____________________________________________________ As an alternative basis for the relief sought by this motion, pursuant to Fed. R. Civ. P. 60(b)(5), the Court should, in the dismissal order, relieve DWSD from the requirements of the SACJ and replace them with the more suitable and current requirements set forth in the ACO. Fed. R. Civ. P. 60(b)(5) gives a court discretion to relieve a party from a final judgment if the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable[.] Injunctions (permanent or temporary), some declaratory judgments, and particularly consent decrees are prospective judgments susceptible to a Rule 60(b)(5) challenge. Doe v. Briley, 562 F.3d 777, 781 (6th Cir. 2009) (quoting Kalamazoo River Study Group v. Rockwell Int'l Corp., 355 F.3d 574, 4

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587 (6th Cir. 2004)). Under Rule 60(b)(5), the district court may dissolve a decree if, among other things, its prospective application is no longer equitable. Fed. R. Civ. P. 60(b)(5). Id. at 781.1 In addition, as shown above, the Court also has inherent authority to modify its consent decree such as the SACJ. Here, the Court should relieve DWSD from the obligations of the SACJ because, as explained above, the SACJs purposes are better served by the new ACO. Further, the SACJ,
DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

now almost 11 years old, is no longer equitable within the meaning of Fed. R. Civ. P. 60(b)(5) because the ACO provides a more comprehensive and current structure for addressing the compliance issues that DWSD is facing and for ensuring DWSDs long-term compliance. While the DWSD has made substantial progress under the SACJ, ultimately the SACJ was not sufficient to sustain long-term compliance. The ACO will take DWSD through to full compliance, which will better suit the interests of all parties to this action. Since the parties now have the benefit of the ACO to implement long-term compliance procedures, the original purpose of the SACJ has been satisfied and it is no longer the best available equitable means for achieving its objectives. The dismissal order should, therefore, relieve SACJ from the mandates of the SACJ and replace them with an order requiring DWSD to comply with the mandates of the ACO. CONCLUSION AND RELIEF REQUESTED For the foregoing reasons, pursuant to the February 11, 2011 Stipulated Order, this Courts inherent authority to modify its consent decrees, and Fed. R. Civ. P. 60(b)(5), DWSD respectfully submits that this Court should enter an order dismissing this action with prejudice

Fed. R. Civ. P. 60(c)(1) requires a party bringing a motion to do so within a reasonable time. Here, as the ACO just became effective on July 21, 2011, the timing of this Motion is certainly reasonable.

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and incorporating the requirements of the ACO and substituting them for the requirements of the SACJ.

DYKEMA GOSSETT PLLC

DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

By: /s/Robert J. Franzinger Robert J. Franzinger (P25539) Mark D. Jacobs (P41878) Attorneys for City of Detroit 400 Renaissance Center Detroit, MI 48243 (313) 568-6690 rfranzinger@dykema.com Date: July 25, 2011

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CERTIFICATE OF SERVICE I hereby certify that on July 25, 2011, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to counsel of record and that I caused copies of same to be mailed via U.S. mail as follows: Joseph W. Colaianne Oakland County Corporation Counsel 1200 N. Telegraph Road Suite 419 Bldg. 14E Pontiac, MI 48341-0419 Robert J. Hribar 16931 19 Mile Road Mount Clemens, MI 48044 John H. Fildew Fildew Hinks 26622 Woodward Avenue Suite 225 Royal Oak, MI 48067 Charles E. Lowe Lowe, Lewandowski, 905 W. Ann Arbor Trail Plymouth, MI 48170 Hassan Aleem 2440 Taylor Street Detroit, MI 48206

DYKEMA GOSSETTA PROFESSIONAL LIMITED LIABILITY COMPANY400 RENAISSANCE CENTERDETROIT, MICHIGAN 48243

Carl Williams 10112 Somerset Avenue Detroit, MI 48224

DYKEMA GOSSETT PLLC

By: /s/Robert J. Franzinger Robert J. Franzinger (P25539) Mark D. Jacobs (P41878) Attorneys for City of Detroit 400 Renaissance Center Detroit, MI 48243 (313) 568-6690 rfranzinger@dykema.com

DET01\940972.4 ID\LAN - 014201/0003