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Franklin, Township of, Sewerage Auth. v. Middlesex County Utils. Auth.

ELR Citation: 16 ELR 20467
Nos. No. 85-5493, 787 F.2d 117/24 ERC 1128/(3d Cir., 03/28/1986)

The court upholds the district court's refusal to grant appellant township of Woodbridge's motion to dissolve an injunction requiring it to connect its sewer system to the Middlesex County Utility Authority's treatment system, since Woodbridge did not demonstrate a change in the circumstances that had given rise to the injunction. The court initially rules that it has jurisdiction over the district court's denial of Woodbridge's motion to dissolve the injunction, pursuant to 28 U.S.C. §1292(a)(1) governing appeals from interlocutory orders. The injunction requires Woodbridge to develop and implement a plan to connect to the Middlesex system, which Woodbridge's national discharge elimination system permit required the township to complete no later than July 1, 1983. The court rules that its scope of review is limited to the propriety of the district court's decision not to dissolve the injunction; the propriety of the injunction itself is not subject to review. The court upholds the district court's refusal to dissolve the injunction, since Woodbridge failed to present any evidence of changed circumstances, but only rehashed claims made and rejected in earlier proceedings.

The court then notes that, in any event, the injunction was valid. Woodbridge's claim that the unavailability of construction grant funds excuses its permit violation has no support in the statute. The authority granted the Environmental Protection Agency (EPA) in §301(i) of the Federal Water Pollution Control Act (FWPCA) to extend municipalities' compliance deadlines or modify permits in response to delays in construction grant funding is discretionary. Furthermore, the court announces, it would rule that 1981 amendments to §301(i) did not automatically extend Woodbridge's compliance deadline from 1983 to 1988. The amendments allow extensions only where the construction grant shortfall results fromfunding custs mandated by the amendments or where delays are due to construction problems beyond the control of the municipality. Woodbridge did not demonstrate that it met either of these conditions. Finally, the court rules that Woodbridge's motion was completely without merit and awards the government double costs.

Counsel for Appellee
F. Henry Habicht II, Ass't Attorney General; Dirk D. Snell, Bruce J. Berger, John T. Stahr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Counsel for Appellant
Arthur W. Burgess, Joseph R. Bulman
One Main St., Woodbridge NJ 07095
(201) 636-0020

Before Becker and Rosenn, JJ.