Providence Road Community Association v. Environmental Protection Agency

No. C-C-80-402 (W.D.N.C. March 10, 1981)

The court rules that the Environmental Protection Agency's (EPA's) decision not to prepare an environmental impact statement (EIS) for a sewage treatment plant was not arbitrary or capricious. Based on its own environmental assessment (EA), an EA prepared by the State of North Carolina, and public comments, EPA concluded that since the land application sewage treatment plant would not cause significant environmental impacts an EIS for the project was unnecessary. Applying an arbitrary and capricious standard of review, the court rules that the administrative record, which reveals consideration of odors and aerosol disease transmission, groundwater pollution, and impact on property values, is sufficient to support EPA's decision. The court may not substitute its judgment for that of the Agency as to the specific method of sewage treatment.

Counsel for Plaintiffs
Hugh G. Casey Jr.
Casey & Bishop
700 Law Bldg., Charlotte NC 28202
(704) 376-7461

Counsel for Defendants
Harold M. Edwards, U.S. Attorney
P.O. Box 30245, Charlotte NC 28230
(704) 371-6222

C. Frank Griffin
Griffin, Caldwell, Helder & Steelman
314 N. Hayne St., Monroe NC 28110
(704) 289-4577

Gary W. Wilburn, Wayne C. Alexander
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2047

William L. Andreen
Environmental Protection Agency, Region IV, 345 Courtland St. NE, Atlanta GA 30365
(404) 881-4727

[11 ELR 20780]

McMillan, J.:

Memorandum of Decision and Order

This case was heard on February 13, 1981, on the motions of the defendants for summary judgment and on plaintiffs' motion for a preliminary injunction.

This court does not sit as an initial fact-finder in this case but sits as a review court. The court can overturn the decision of the Environmental Protection Agency (EPA) not to prepare an Environmental Impact Statement (EIS) only if it is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law."

If I were the decision maker I would seriously consider a conventional sewage disposal system rather than the proposed sprawling 200-acre sewage system which is untried in the clay soil of this region.

However, it is not up to me to decide, for I do not believe that the EPA's decision is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law," or that the plaintiffs have raised any substantial questions as to the adverse impact which were not addressed by the EPA. The administrative record reveals that the EPA did consider potential odors, transmission of pathogens, groundwater pollution, land use changes and property values in making a decision not to prepare an EIS. I am not authorized to substitute my judgment as to the desirability of the land treatment plan for the judgment of the EPA.

IT IS THEREFORE ORDERED THAT:

1. The plaintiffs' motion for a preliminary injunction is denied.

2. The defendants' motions for summary judgment are granted.

3. The plaintiffs may submit within ten days any objections they have to the defendants' proposed findings of fact and conclusions of law filed on February 13, 1981. After that date I intend to enter a final judgment incorporating the essential substance of those findings and conclusions.

Judgment

The court has head the cross motions for summary judgment and has entered findings of fact and conclusions of law supporting its conclusions that summary judgment for the defendants is appropriate.

IT IS THEREFORE ORDERED that summary judgment for the defendants is granted and that this action is dismissed without an assessment of costs.

Findings of Fact and Conclusions of Law

The Following Facts Can Fairly Be Found from the Administrative Record

1. In 1974, Union County, North Carolina, applied for funding from the United States Environmental Protection Agency for development of a county-wide plan to address its waste water treatment facilities needs, including those of the town of Waxhaw (A.R. Item #2).

2. Waxhaw is located in the southwest portion of Union County. In 1970 its population was 1,248. Waxhaw's current waste water treatment consists of an Imhoff tank which serves about 91 customers, or approximately 20 percent of the town (A.R. Item #24, at I-3, D-1, VII-8). The Imhoff tank discharges into Rone Branch, and in periods of rainfall most of the solids are washed into the stream, causing severe water quality degradation. Water quality monitoring indicates that pollution resulting from discharges from the Imhoff tank, and from poor performance of private septic tanks, presents a public health threat to Waxhaw's residents and those living downstream (A.R. Item #24, at App. D-1; Eckley aff., para. 12).

3. Union County's facilities plan analyzed five waste water treatment and sludge disposal alternatives in detail, after the elimination of other alternatives not worthy of detailed analysis. The plan also analyzed five waste water management techniques, and recommended, with respect to Waxhaw's needs, that the [11 ELR 20781] county construct a conventional, tertiary waste water treatment plant which would discharge into Twelve-Mile Creek (A.R. Item #24, at chs. VIII, IX, X).

4. EPA conducted an environmental review of this proposal. It concluded, based on the engineering report, the environmental assessment, and other supporting data, that no significant environmental impacts would result from constructing the proposed conventional tertiary treatment plant (A.R. Item #30).

5. Further study of this proposal indicated that the cost to its users would be high, and therefore Union County studied less costly alternative methods of treatment (A.R. Items ##44, 48, 49, 52, 57). It identified the land application method as having the highest total project cost but the lowest average monthly user charge (A.R. Item #57, pp. 2, 6).

6. Union County presented its soil engineers with six potential sites in which the necessary land could be acquired. Four sites were eliminated after examination of topographical and soils information. The two remaining sites were inspected in the field, at which time soil borings with hand augers were performed and the samples analyzed. The proposed site was chosen for its superior soil and topography, fewer adjacent residents, and availability of land for a buffer zone (Carlile aff., para. 9).

7. On August 2, 1979, Union County held a public hearing in Waxhaw on the proposed land treatment system (A.R. Item #79, App. E). Notice of the hearing appeared in the Monroe newspaper, the Enquirer-Journal, on seven dates over five consecutive weeks prior to the hearing (A.R. Item #71). The notice stated that the hearing was necessitated by the change in the proposed Waxhaw waste water facilities to a land application system, due to the high user costs of the prior proposal (A.R. Item #71). A notice of the hearing was also posted at the Waxhaw Town Hall (A.R. Item #141). Subsequent to the hearing, the county forwarded to EPA a transcript of the hearing as well as a Responsiveness Summary outlining the comments received at the hearing (A.R. Item #77).

8. In November, 1979, the county forwarded to EPA a formal evaluation of the land treatment proposal, in order to revise the facilities plan with regard to the Waxhaw project. Included as attachments to the evaluation were an environmental impact assessment prepared by the county's consultant, a transcript of the August 2, 1979, public hearing, and an Archaeological, Botanical, and Wildlife survey of the project site (A.R. Item #79, Appendices D, E, and F). EPA reviewed the evaluation and found it acceptable (A.R. Item #91).

9.EPA personnel reviewed the revised facilities plan proposing the land treatment facility, including Union County's environmental assessment. EPA also reviewed the environmental assessment and declaration of no significant impact prepared by the State of North Carolina (A.R. Item #92). Based on this information, and supporting documents obtained from Union County and state agencies, EPA prepared an environmental assessment of the potential impacts of the proposed project (A.R. Item #106; McGarry aff.). EPA concluded that the project would not entail significant environmental impacts and announced the agency's preliminary decision not to prepare an EIS for the Waxhaw project (A.R. Item #106).

10. EPA allowed a period of thirty days for public comments (A.R. Item #107). After review of the comments from approximately forty citizens and organizations, EPA arrived at a final decision not to prepare an EIS (A.R. Items ##141, 143).

Odors and Aerosol Disease Transmission

11. The administrative record addresses the question of the emission of odors from the proposed plant. The proposed land treatment facility will incorporate design features to minimize the transmission of odors. The plant will contain an oxidation pond in which the waste water will be treated with chlorine prior to application to the land. With proper loading of the pond and proper rates of application to the land, significant odor emissions are not expected (A.R. Item #92, p. 5; Carlile aff., para. 10). If excessive loading should cause future emissions, there are remedial steps in the form of prechlorination or the addition of an aeration facility to the pond (A.R. Item #143; McGarry aff., para. 13).

12. EPA also considered the potential for the aerosol transmission of pathogens. The oxidation pond will perform the substantial equivalent of secondary treatment, possibly eliminating 95 to 99 percent of the pathogens. Subsequent chlorination can almost totally destroy and remaining pathogens (Carlile aff., para. 10; McGarry aff., para. 10(d)). A substantial land buffer containing vegetative screen will further minimize any risk of aerial drift of pathogens (A.R. Item #106, p. 4). The area around the site is sparsely developed, further reducing the risk of transmission of pathogens to humans (A.R. Item #144, p. 2; McGarry aff., para. 10(e)).

Groundwater Pollution

13. The EPA administrative record reveals consideration of the potential for pollution of surface waters and groundwater. The proposed site for the oxidation pond and spray application area was chosen after studying potential sites throughout Union County, including extensive study of six sites where the necessary land could most easily be acquired. Soil engineers recommended selection of the proposed site after study of topographical and soils maps as well as aerial photographs, and on site inspections including soil sampling by hand borings (Carlile aff., para. 9; Eckley aff., paras. 15, 16).

14. In accordance with a water balance developed for the project, application levels will vary with precipitation levels to prevent waste water runoff or waterlogging (A.R. Item #79, App. B., Carlile aff., para. 13; McGarry aff., para. 10(b)).

15. The oxidation pond will provide storage during heavy rainfall periods, to prevent excessive saturation of the soils. The floor of the pond will be compacted so that permeability under the pond will be minimized (Carlile aff., para. 10; A.R. Item #79, Table A-1).

16. Vegetation to be grown on the application area, including fescue and bermuda grasses as well as alfalfa and pine trees, will maximize nutrient uptake and reduce the transmission of pollutants to the groundwater (Carlile aff., para. 14; McGarry aff., para. 10(c); A.R. Item #79, pp. 2, 3, App. B-3). Groundwater monitoring will be initiated before the land treatment begins and continue throughout the project to insure compliance with state groundwater requirements (A.R. Item #143, p. 3; McGarry aff., para. 10(e)).

17. The proposed site is currently used for woodland and agricultural purposes (A.R. Item #44, p. 3).

18. The area surrounding the site is a sparsely developed, rural community (A.R. Item #144, p. 2; McGarry aff., para. 10(e)).

19. Union County's land use plan classifies the sites chosen for the oxidation pond and the land application as "forestland" or "undeveloped" (A.R. Item #93, p. 6).

20. The land for the buffer zone and land application site will be used for woodland and agricultural purposes which will be consistent with existing uses of the land (A.R. Item #106, p. 4).

21. No residents will be displaced as a result of the project (A.R. Items #106, p. 2; #144, p. 3; #79, App. D).

22. The proposed facility will initially serve approximately 460 households in the town of Waxhaw, and will have a reserve capacity that does not exceed the 20-year growth projections for the area (A.R. Items #24, pp. VII-2-4, 6, 12; X-2, 4; #33, p. 9; #79, Table No. 5 at p. 9; App. E at pp. 16-17). As such, the facility will not generate significant adverse secondary impacts (A.R. Items #79, App. D, p. 4; #92, p. 7; #106, pp. 5, 6; #33, p. 10).

23. The State of North Carolina, Union County, and the town of Waxhaw have certified that the project is consistent with the present and future waste water treatment needs of Union County as identified by the 201 facilities plan (A.R. Item #93).

24. The state, county and town have also certified that the grantee Union County has the necessary authority for implementation of the project (A.R. Item #93).

25. The Union County Board of Commissioners is the ultimate authority for zoning and planning for future land use in Union County (Exhibit B to Federal Defendants' Memorandum of Law).

Property Values

26. EPA considered potential impact on property value due to the proposed facility. EPA concluded that the project would be located in an area with compatible uses, and would not depreciate nearby property values (A.R. Items #143, p. 4; #92, p. 7).

[11 ELR 20782]

Conclusions of Law

1. The National Environmental Policy Act, 42 U.S.C. § 4321 et seq., requires a federal agency to prepare an environmental impact statement for every major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C).

2. The responsibility for making the threshold determination whether a proposed porject is a major federal action and whether its impact on the environment will be significant lies with the federal agency involved. First National Bank of Chicago v. Richardson, 484 F.2d 1369, 1380 [3 ELR 20771] (7th Cir. 1973); Hanly v. Mitchell (Hanly I), 460 F.2d 640, 644-645 [2 ELR 20216] (2d Cir. 1972), cert. denied, 408 U.S. 990 (1972).

3. The standard for judicial review of an agency's decision not to prepare an impact statement is whether the decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971); Rucker v. Willis, 484 F.2d 158 [3 ELR 20912] (4th Cir. 1973); Hanly v. Kleindienst (Hanly II), 471 F.2d 823, 828-829 [2 ELR 20717] (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973).

4. This is a "highly deferential" standard which "presumes agency action to be valid." Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34 [6 ELR 20267] (D.C. Cir. 1976), cert. denied, 426 U.S. 941 (1976); Citizens to Preserve Overton Park, supra at 415.

5. This court may not substitute its judgment as to the desirability of the Waxhaw project for the judgment of EPA. Strycker's Bay Neighborhood [Council, Inc. v. Karlen], 444 U.S. 223 [10 ELR 20079] (1980); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532] (1976).

6. Under this standard of review, the proper focal point for review is the administrative record already in existence. Camp v. Pitts, 411 U.S. 138, 142 (1973); Conservation Council of North Carolina v. Froehlke, 6 ERC 1063 [4 ELR 20062] (4th Cir. 1973); Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021, 1028 [5 ELR 20379] (4th Cir. 1975), cert. denied, 423 U.S. 912 (1975).

7. The administrative record of the EPA decision not to prepare an impact statement is in this cause sufficient for the court to perform its review function, and fully addresses all substantial environmental concerns raised by the plaintiffs. Therefore, further evidentiary development is unnecessary and inappropriate. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 [3 ELR 20287] (5th Cir. 1973); Pokorny v. Costle, 464 F. Supp. 1273, 1276 [9 ELR 20330] (D. Neb. 1979); Bosco v. Beck, 475 F.2d 1029, 1031 (D.N.J. 1979), aff'd, 614 F.2d 769 (3d Cir. 1980); Mid-Shiawassee County Concerned Citizens v. Train, 408 F. Supp. 650, 654, 659 [6 ELR 20340] (E.D. Mich. 1976).

8. EPA's conclusions that the potential for emission of odors and aerosol transmission of pathogens would not cause a significant impact on the environment is supported by the record and is neither arbitrary nor capricious. The proposed design and operation of the facility, as well as the present uses and sparsely developed nature of the surrounding area, are all factors which were considered in EPA's decision that an impact statement need not be prepared.

9. This court is not to substitute its judgment for the local, state, and federal agencies as to the specific method of waste water treatment to be utilized, but must confine its review to whether the method chosen will cause a significant impact on the environment. Howard v. Environmental Protection Agency, 4 ERC 1731, 1733-1734 [2 ELR 20745] (W.D. Va. 1972); Pokorny v. Costle, supra at 1289; Mid-Shiawassee County Concerned Citizens, supra at 656; Life of the Land v. Brinegar, 485 F.2d 460, 472-473 [3 ELR 20811] (9th Cir. 1973).

10. The potential for increased groundwater pollution has also been raised by plaintiffs, but the record indicates that this issue was fully considered. EPA's conclusion that groundwater quality would not be adversely affected is based upon extensive soils studies and planned design of the facility to assure proper nutrient uptake. Indeed, this project is conceived to relieve the current inadequate treatment in Waxhaw, and may enhance groundwater quality in the area. The conclusion that groundwater impacts would not be significant so as to require the preparation of an impact statement is neither arbitrary nor capricious.

11. Plaintiffs also charge that the project will cause major land use changes due to odors and increased development pressures. However, EPA reviewed both of these issues and concluded that the rural uses made of the project site would not be significantly altered by the land treatment facility and that the facility would not trigger significant adverse secondary impacts in the Waxhaw area. See 40 C.F.R. § 6.506(a)(1) (1980). Much of the facility's land will be used for woodland and agricultural purposes consistent with the existing uses of the land. The reserve capacity of the facility does not exceed the 20-year growth projections for the Waxhaw area. Any future expansion of the facility will be accompanied by further environmental reviews. The conclusions that significant land use changes would not occur surpasses the applicable standard of review.

12. Nor does the current zoning of the proposed site pose an environmental issue which under NEPA would require the preparation of an impact statement. The proposed uses of the site are consistent with the county's land use plan. The Union County Board of Commissioners is both the applicant and the ultimate authority for land use planning and zoning within the county, and is proceeding to amend the zoning ordinance to allow construction of this facility.Accordingly, there is no inconsistency with local land use plans, nor is there a federal "override" of local zoning, such as requires the preparation of an impact statement. See, e.g., Maryland National Capital Parks & Planning Commission v. United States Postal Service, 487 F.2d 1029, 1037 [3 ELR 20702] (D.C. Cir. 1973).

13. Plaintiffs' claim that its property values will decrease as a result of the project was adequately addressed in the administrative record. Moreover, the court need not make a determination on this issue, for such an economic claim is not cognizable under NEPA. As plaintiffs have failed to establish any impacts upon the physical or natural environment, an economic impact, even if it could be shown, is insufficient to surpass the NEPA threshold requiring the preparation of an impact statement. Breckinridge v. Rumsfeld, 537 F.2d 864 [6 ELR 20597] (6th Cir. 1976), cert. denied, 429 U.S. 1061 (1977); Metlakatla Indian Community v. Adams, 427 F. Supp. 871, 874-875 [7 ELR 20407] (D.D.C. 1977); 40 C.F.R. § 1500.14 (1980).

14. Plaintiffs have not raised any substantial environmental issues not adequately addressed in the administrative record. This court's task is not to determine whether environmental impacts will occur, but whether EPA's conclusions as to the significance of the impacts are arbitrary and capricious. Since the EPA decision not to prepare an impact statement meets the applicable standards of judicial review, summary judgment for the defendants is appropriate. See Mid-Shiawassee County Concerned Citizens, supra at 659.