State v. City of Allen Park

Nos. 79-74681, -74682 (501 F. Supp. 1007) (E.D. Mich. November 6, 1980)

ELR Digest

The district court rules that defendants violated § 301(a) of the Federal Water Pollution Control Act (FWPCA) by failing to comply with the construction schedule contained in their national pollutant discharge elimination system (NPDES) permit for the Allen Park segment of a sewer separation project. The Michigan Department of Natural Resources (DNR) issues an NPDES permit to defendants which provided that the construction of separate storm and wastewater sewer systems for Allen Park be completed by March 31, 1982. In November 1979, DNR issued notices of violation to defendants for failing to initiate bid advertisements for the project by October 30, 1979 as required by the proposed construction schedule. Subsequently, citizens of Allen Park and construction contractors for the project initiated a citizen suit under the FWPCA, 33 U.S.C. § 1365, against Allen Park, DNR, and the Environmental Protection Agency (EPA) for failure to proceed with the sewer separation project. Pursuant to a court order, DNR and EPA were realigned as plaintiffs in the case. Initially, the court rules that the citizens of Allen Park have standing under the citizen suit provision of the FWPCA since they are residents and homeowners of Allen Park whose properties and persons are adversely affected by the combined sewer system. In addition, the contractors have standing because their economic interests are adversely affected by the defendants' inaction, and this case is in the nature of an enforcement action which will further the goals of the FWPCA. Next the court finds that defendants have discharged and are discharging pollutants into the north branch of the Ecorse Creek and are in violation of their NPDES permit by their failure to proceed with financing and construction of the Allen Park segment of the sewer separation project, and therefore have violated § 301(a) of the FWPCA. In addition, the court rules that (1) defendants' counterclaim, which alleges that EPA violated the National Environmental Policy Act when it awarded wastewater treatment works construction grants without first preparing an environmental impact statement, is barred by laches, (2) the NDPES permit condition requiring construction of the Allen Park segment is not arbitray and capricious, and (3) neither the law nor the Constitution of the State of Michigan prevent Allen Park from financing its assessed share of the sewer project without public referendum. Finally, the court orders defendants to immediately proceed with the financing and construction of the Allen Park segment of the sewer separation project.

The full text of this opinion is available from ELR (18 pp. $2.75, ELR Order No. C-1259).

Counsel for Plaintiffs
Thomas Emery, Ass't Attorney General
7th Floor, Law Bldg., Lansing MI 48913
(517) 373-1110

Karl Overman, Ass't U.S. Attorney
817 Fed.Bldg., 231 Lafayette Blvd., Detroit MI 48226
(313) 226-7715

Counsel for Plaintiffs Greenfield Construction Co. et al.
Abba I. Friedman, Laurence A. Berg
Hyman, Gurvin, Nachman, Friedman & Winkelman
16th Floor, N. Park Plaza, 17117 W. Nine Mile Rd., Southfield MI 48075
(315) 559-7500

Counsel for Plaintiffs Lindisch and Serpetti
Timothy Downs
Craig, Farber & Downs
1217 First Nat'l Bldg., Detroit MI 48226
(313) 963-8155

Counsel for Defendant City of Allen Park
Kenneth D. Kruse
Pagnucco & Kruse
Suite 100, 7000 Roosevelt Rd., Allen Park MI 48101
(313) 386-1111

Michael H. Feiler
32969 Hamilton Ct., Farmington Hills MI 48018
(313) 553-9300

Feikens, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]