A Chicago federal judge has refused to sink a lawsuit by environmental activists alleging the Metropolitan Water Reclamation District of Greater Chicago has polluted waterways with excessive levels of phosphorus, ruling the district failed to show the activists contradicted themselves, by arguing in state court environmental permits do not significantly restrict phosphorus discharges, while arguing in federal court the permits do impose such restrictions. 

The Dec. 27 decision was delivered by U.S. District Judge John Tharp Jr., favoring the Natural Resources Defense Council, the Sierra Club and Prairie Rivers Network in their action against the water reclamation district. The district covers 883 square miles, treating wastewater from Chicago and 125 suburban communities. 

In 2011, the environmental groups lodged a suit against the district, alleging the district violated its federally issued National Pollution Discharge Elimination System (NPDES) permits by discharging phosphorus, which purportedly exceeded permissible levels, in treated water from three of its seven wastewater treatment plants. The three plants are in Skokie, Cicero and at 400 E. 130th St., Chicago. The treated water enters Chicago-area waterways, eventually streaming into the Mississippi River and then the Gulf of Mexico. 

The groups alleged the excessive phosphorus affected algal and plant growth, as well as levels of dissolved oxygen, which violated Illinois water quality standards. They are asking the court to order better filtering. The district has denied it is in violation, maintaining that “reducing the manmade phosphorus component ... would be unlikely to affect” algal and plant growth. 

While this suit was pending, plaintiffs took action against the district regarding the Illinois Environmental Protection Agency's renewal of the district's permits that took effect Jan. 1, 2014. Plaintiffs went before the Illinois Pollution Control Board, arguing the permits set phosphorus limits too high to maintain water quality. The district countered the limits went “above and beyond” what the law required. 

The Pollution Control Board disagreed, upholding the permits. Plaintiffs then repeated their arguments in state appellate court, where they carried the day in February 2016. The permits were remanded to the board for further proceedings. 

In federal court in October 2016, the district filed a motion to bar plaintiffs' federal claim, alleging plaintiffs argued in appellate court the permits do not meaningfully restrict phosphorus, but are contending in federal court the permits do impose worthy restrictions that the district allegedly violated.

Judge Tharp sided with plaintiffs, concluding they weren’t engaging in “double-speak,” as the district claimed. 

Tharp said plaintiffs argued in appellate court the phosphorus requirements were difficult to enforce and it was inefficient to rely on “ex post facto enforcement” through litigation after violations take place. These contentions were consistent with plaintiffs’ federal arguments. 

“There is simply nothing wrong with trying to enforce existing limits while pushing for the imposition of more and stringent regulations going forward,” Tharp observed. 

Tharp went on to say the district’s characterization of plaintiffs’ appellate arguments is “inaccurate and without any grounding,” leaving him “baffled” as to how the district could have developed such a characterization. 

Tharp added that on the subject of consistency, both sides have “emphasized different points in different contexts, but the line of clear inconsistency has not been crossed.” 

The judge took the district to task for filing its motion late in the case – trial preparations were gearing up in earnest – saying it would cause “substantial prejudice to toss out this case based upon a legal argument that was available to the District seven months before this motion was made.” 

A pretrial conference is set for Jan. 6 with jury trial scheduled for Jan. 17. 

The NRDC is represented by the Chicago firm of Baker & McKenzie. The Sierra Club and Prairie Rivers Network are represented by Chicago lawyer Albert Ettinger. 

The Metropolitan Water Reclamation District of Greater Chicago is represented by in-house counsel and the firm of Beveridge & Diamond, which has offices in Chicago and Washington, D.C.

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Baker & McKenzie LLP Beveridge & Diamond Prairie Rivers Network

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