Howard v. Environmental Protection Agency

No. 72-C-30-H (W.D. Va. September 14, 1972)

A suit challenging the construction of a sewage treatment plant on grounds that the defendant failed to comply with the National Environmental Policy Act of 1969 (NEPA) and took property without just compensation in violation of the Fifth Amendment to the U.S. Constitution, and defendant is granted summary judgment. There is no need to draft an environmental impact statement where the project involved will have no adverse effect upon the environment. The Environmental Protection Agency has no obligation to compensate incidental damage resulting from the setting of water quality standards by a state water control board.

Counsel for Plaintiff
Donald Litten
218 E. Market Street
Harrisonburg, Va.

Counsel for Defendant
Paul R. Thomson, Jr. Asst. U.S. Attorney
P.O. Box 1709
Roanoke, Va. 24408
Lee Stewart
Department of Justice
10th and Pennsylvania Avenue, N.W.
Washington, D.C.

[2 ELR 20745]

Dalton, J.

The present case concerns an issue of current and timely interest in the United States, the environmental crisis. The plaintiff, Milford Howard, has sought to challenge by various allegations the construction of a regional sewage treatment plant for Harrisonburg and Rockingham County, Virginia.

The plaintiff in his complaint has alleged a violation of 42 U.S.C. § 4332 (2) (C)¹ and a taking of his property without just compensation in violation of the Fifth Amendment.

At a pretrial conference held on August 24, 1972, in Harrisonburg, it was apparent that plaintiff probably was more concerned with the location of the plant, the water quality standard set by the Virginia Water Control Board, and the method of waste elimination, than he was with his federal allegations. The plaintiff had previously brought a state court action which failed. It appears to this court that the federal gounds alleged rather seek to obtain federal review of the case. This court will attempt to reconcile the federal charges with the other objections Mr. Howard put forth at the pretrial conference.

The record in the case shows quite explicitly the undesirable condition of the North River, a tributary of the Potomac River and its tributaries.

Currently the cities of Dayton, Bridgewater and Harrisonburg have their own separate and independent sewage [2 ELR 20746] treatment plants. The Dayton facility has a capacity of treating .24 million gallons of sewage per day. Its present problems are overloading, a low level of waste treatment, inadequate treatment of poultry wastes, and the stream into which the treated effluent is discharged is too small for the volume of discharge.

The Bridgewater plant can treat .35 million gallons per day. Its problems are overloading, inadequate treatment, and occasional raw sewage discharge.

The Harrisonburg plant treats a maximum of 2.25 million gallons per day. Its problems are overloading, the inability to operate at the desired level of treatment, occasional discharge of raw sewage, and the receiving stream is too small for the volume of the discharge.

The Bridgewater facility offers only primary stage treatment, while the other two give secondary stage treatment. Primary treatment is generally expected to achieve a removal of 30-35% of the biochemical oxygen demand (commonly referred to as BOD) and 50-60% of the suspended solids. Secondary treatment is generally defined as that which achieves almost complete removal of all floatable and settleable materials, removal of at least 85% of the BOD, and a substantially complete reduction of pathogenic microorganisms on a continuous basis.

Because of the current overloading of the three facilities, these stated degrees of treatment are seldom achieved, the degree of treatment in reality being much less.

The new regional treatment plant, funded by the federal, state and local governments, will have a capacity of 8 million gallons per day compared to the present 3 million gallons per day and is designed for an expansion to 16 million gallons per day. It will be a secondary treatment facility which will increase the present 30-70% BOD removal to 85-90% removal from all sewage. In addition discharge into the two small tributaries of the North River will be eliminated.

From the uncontroverted facts it appears that Mr. Howard, commendably, was a prime force in calling attention to the present inadequate sewage treatment. He also fervently argued for construction of a regional plant rather than expansion of the present three facilities. Thus, Mr. Howard does agree that the new facility is badly needed and should be built. His objections relate to the location of the plant, the degree of waste treatment, and the water standards to be met.

Defendants to this action have moved to dismiss the suit for failure to state a claim upon which relief may be granted. The Environmental Protection Agency has alternatively moved for summary judgment.

The court will first consider the allegation that the federal government has failed in its statutory duty described in 42 U.S.C. § 4432 (2) (C) to make an environmental impact study of the project.Mr. Howard has requested that this court order the Environmental Protection Agency to make such a study. This court must therefore decide whether the facts of the present case would require such a study to be ordered by this court.

The Environmental Protection Agency contends that such a study need be made only when an action by a governmental agency would, in addition to its designed purpose, also affect some quality of the environment. Since the present treatment plant will only upgrade the human environment, and no evidence indicates any adverse effects, then no environmental impact study should be ordered by the court.

Because the National Environmental Protection Act, 42 U.S.C. §§ 4321-4395, wasn only recently enacted (January 1, 1970), there has been no extensive development of the interpretation of the law by the courts. It appears, however, that Congress by enacting this legislation was attempting to balance different competing social interests. On the one hand, the needs of the people must be weighed against the desire of the people to conserve, protect, and save our country's natural environment.

Viewed in this light, the court is of the opinion that an environmental impact study is necessary only when some aspect of the environment will be damaged by a governmental project. Thus, for example, the building of a federally financed highway through virgin timber lands or a pipeline through a park or a highway along a scenic seashore might require such a study because the project, while serving the needs of the people in one sense, may affect the quality of the nation's environment. If, however, it is apparent that a project has no adverse effects upon the environment, then a study need not be undertaken. The few decided cases in this area appear to support this position. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Calvert Cliff's Coordinating Comm. v. United States Atomic Energy Comm'n., 449 F.2d 1109 (D.C. Cir. 1971); Citizens for Reid State Park V. Laird, 336 F. Supp. 783 (D. Me. 1972); Envonmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, 325 F. Supp. 749 (E.D. Ark. 1971).

The duty is upon the plaintiff to come forward with evidence sufficient to show the adverse effect which a project will have upon the environment. Mere allegations will not suffice because these studies are costly and time consuming both in man hours needed to prepare a report and in delay in beginning a much needed project.

Mr. Howard in his complaint sets forth the following basis of an adverse environmental impact:

The City of Harrisonburg has recently completed a new water treatment and purification facility which withdraws about 5 million gallons of water per day from the adjacent North River tributary system. Because there will be 5 million gallons of water per day withdrawn, then treated effluent from the new sewage treatment plant will have less water with which it may mix. Therefore, the amount of impurities still present will exist in a greater concentration or density per gallon than would otherwise be present if the 5 million gallons of water were not withdrawn.

Secondly, plaintiff contends that the proposed sewage treatment plant is outmoded because it does not employ third stage treatment of effluent which would produce almost 100% pure water.

This court does not agree with either of these contentions. The sewage plant itself does not harm the environment. It is true that effluent dilution will not be as great was would exist if more water were present, but this would be true with any sewage treatment plant. This fact is true presently with the existing facilities which pour out great quantities of inadequately treated and raw sewage. The sewage treatment plant can only help this situation by removing more impurities which will in turn decrease the amount of pollution per liter or per gallon of water.

It is true that the withdrawn water re-enters the river through the sewage treatment plant, but this also does not affect the environment. Drinking water always re-enters the water system by way of the sewage plant. At present it re-enters the water system very inadequately treated. With the new facilities it will re-enter in a much cleaner and more purified state. Therefore, plaintiff's theories in this respect are unwarranted. It is the water purification facility and not the sewage plant which may be the culprit under the plaintiff's theory.

Plaintiff also contends that the treatment method to be employed is outmoded in that an additional third stage treatment is not employed. Defendant contends that, while the plant is designed to incorporate a third stage, these final methods are still in the experimental stage and none has yet proven effective and economical. While one may dispute with either position, this court need not decide in favor of either plaintiff or defendants. This court has no authority or power to require a three-stage facility to be constructed. This is a matter which must be left for expert judgment and determination in fields where this court has no experience or expertise.

The remedy of the court in this area is limited solely to requiring an environmental study to be made. As already determined, such a study must be made only when the environment is affected, and because this project has not been shown by the plaintiff to affect the environment, no such study need be made. This court has no authority or power to pass upon the design of a public facility.

Plaintiff's second allegation is that his property has been taken without due process of law. The underlying theory here is that when plaintiff purchased his riverfront property, it was suitable for swimming. The State Water Control Board has set water quality standards for North River which must be met by the cities involved. This standard is known as Class IV A which is defined as waters generally satisfactory for use as a public or [2 ELR 20747] municipal water supply, secondary contact recreation (which does not include swimming), propagation of fish and aquatic life, and other beneficial uses.

Class IV B includes all Class IV A uses and in addition primary contact recreation or swimming. Plaintiff contends that property values on the river are determined by the use which can be made of the adjoining water. Because the water quality standards are not high enough to include swimming, which was possible when he purchased the property, his property value has been lowered. Therefore, he argues that he has been deprived of property without due process of law.

There is no evidence nor does Mr. Howard allege that he has any ownership interest in the river or water itself. His property interest ends at the water's edge. It has long been held that this portion of the Fifth Amendment applies only to a direct appropriation of or a substantial interference in the use of an individual's property. Property is taken in the constitutional sense only when inroads are made to such an extent that as between private persons a servitude would have been acquired either by agreement or in the course of time, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872); Legal Tender Cases v. Texas, 79 U.S. (12 Wall.) 544 (1970); R.J. Widen Co. v. United States, 357 F.2d 988 (Ct. Cl. 1966); Laycock v. Kenney, 270 F.2d 580 (9th Cir. 1959) cert. denied, 361 U.S. 933 (1960); Societe Conniere Du Tonkin v. United States, 171 F. Supp. 951 (Ct. Cl. 1959), cert. denied, 361 U.S. 965 (1960). Changes in the value of property resulting from public projects are not a taking. Danforth v. United States, 308 U.S. 271 (1939). The owner must be deprived in actuality of the use of his land, and not merely the use of some property which he might use but in which he has no legal title. Aris Gloves, Inc. v. United States, 420 F.2d 1386 (Ct. Cl. 1970).

In one case the Supreme Court held that improvements in navigation by the United States which did not invade the fast lands of riparian owners did not entitle these owners to compensation for the decrease in property value. United States v. Commodore Park, Inc., 324 U.S. 386 (1945), in an earlier case the court stated:

"But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision."

Gibson v. United States, 166 U.S. 269, 275 (1897).

Because there is no evidence in this case that the plaintiff owns any portion of North River, the alleged decrease in value of his property is merely incidental damage resulting from a valid governmental function. For this type of damage there can be no compensation.

This court has no authority to consider what it believes to be plaintiff's true reason for bringing this suit — that is to determine and indirectly require a more suitable plant location, and to force the State Water Control Board to raise the water quality standard to swimming levels, and to force the sewage plant to use a third stage spray irrigation type of treatment.

These questions raise problems with which a federal court does not have the expertise to deal. This court is certain that there are many diverse opinions, with respect to these issues, held by experts in the field. This court could do nothing more than give its own opinion on these issues. Therefore, these are not issues which are proper for judicial review. They do not present legal problems, but rather mechanical, logistic, and engineering problems. This court will, therefore, not consider them.

In accordance with the foregoing this court grants the Environmental Protection Agency's motion for summary judgment and grants the remaining defendants' motions to dismiss, and it is so adjudged and ordered.

The clerk is directed to send certified copies of this order to counsel of record.

1. 42 U.S.C. § 4332(2) states:

". . . all agencies of the Federal Government shall . . .

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposed action be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and,

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented . . ."