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Orangetown, Town of v. Gorsuch

Citation: 14 ELR 20049
No. No. 83-6035, 718 F.2d 29/20 ERC 1125/(2d Cir., 09/21/1983)

The court rules that the Environmental Protection Agency (EPA) complied with the National Environmental Policy Act and the Federal Water Pollution Control Act in issuing construction grants for the expansion of a sewage treatment system without preparing an environmental impact statement (EIS). The court first upholds the Agency's finding that the project would have no significant environmental impact. The finding must be sustained unless it was arbitrary or capricious. EPA properly considered potential effects on wetlands, floodplains, and land use and altered the design of the project to limit those effects. Construction of a portion of the project in an area with wetland characteristics was not construction in a wetland where the appropriate agency had declined to designate the area as such. Nor is the extension of minor portions of buildings into a floodway a significant adverse impact where the intrusion is deminimis and other parts of the project were relocated to avoid the floodplain. The posibility of significant secondary growth not substantiated by facts in the record is insufficient to require an EIS. The court also rules that EPA's approval of the design size of the project as adequate to handle future sewage flows was reasonable and that public [14 ELR 20050] opposition alone is insufficient to render the project controversial and thus a candidate for an EIS.

The court rules that EPA complied with its construction grant regulations. EPA followed all required procedural steps, and its failure to prepare a single document indicating compliance with a list of regulatory preconditions for approval did not violate the regulations so long as the record as a whole demonstrates that all the conditions met. The court rules that appellants' nuisance claim was properly dismissed below. The record below failed to demonstrate that the noxious odors admittedly emanating from the treatment plant to be modified alone caused a nuisance condition where a second nearby treatment plant also emitted foul odors. Finally, the court rules that appellants' claim under the State Environmental Quality Review Act was properly dismissed under a four-month statute of limitations governing actions against state agencies and officers.

Counsel for Appellants
David Sive, Laurence B. Jones
Winer, Neuburger & Sive
425 Park Ave., New York NY 10022
(212) 421-2150

Counsel for Appellee Rockland County Sewer Dist. No. 1
Peter A.A. Berle, Carol A. Buckler
Berle, Butzel, Kass & Case
45 Rockefeller Plaza, New York NY 10111
(212) 765-1800

Counsel for Appellee EPA
GainesGwathmay; John S. Martin, U.S. Attorney; Thomas D. Warren
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Mary Lyndon; Robert Abrams, Attorney General
Dep't of Law, Two World Trade Ctr., New York NY 10047
(212) 488-4141

Before OAKES, PIERCE and PECK,*