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25 ELR 20804 | Environmental Law Reporter | copyright © 1995 | All rights reserved Pure Waters, Inc. v. Michigan Department of Natural ResourcesNo. 94- CV-74869 (873 F. Supp. 41) (E.D. Mich. December 23, 1994)The court refuses to issue a temporary restraining order to halt the construction of a sewer overflow retention basin in Birmingham, Michigan. The court notes that plaintiff citizens group is seeking to substitute a system of separated sewers for the basin. The court finds that defendants considered this alternative and rejected it for appropriate reasons, because the retention basin and related interceptor project is estimated to cost $ 29,861,000 and the separated sewer project is estimated to cost $ 64,498,000. The court finds that the group's concerns about the water quality of discharge into the Rouge River are without foundation, because the river is highly polluted, and the discharge from the retention basin of partially treated stormwater and wastewater overflow under controlled conditions during wet weather, will certainly not add to the river's pollution. The discharge will substantially decrease the river's pollution because the retention basin's content will not be discharged into the river. The court holds that the group failed to satisfy the requirements for a temporary restraining order, because stopping construction of the project would cause irreparable harm to defendants and to the public interest. Such action is not warranted in view of defendants' compliance with the requirements of the National Environmental Policy Act, the Michigan Environmental Protection Act, and the Federal Water Pollution Control Act. Finally, the court denies the group's motion for certification of the court's denial of the motion for a temporary restraining order. Counsel for Plaintiff Counsel for Defendants FEIKENS, District Judge. The Rouge River in southeastern Michigan has been a conduit of polluted waters for many years. In my order, dated December 19, 1994, I referred to Civil Action No. 87-70992. That case, through consolidation, is an important instrument through which corrective measures are being taken to cure problems in that area which are similar to the pollution problems in this case. What triggered the lawsuit which in turn led to this case, Civil Action No. 94-74869, is not a consent judgment but a settlement agreement. It is necessary for me to issue this corrective opinion which does not affect the substance of my opinion and order of December 19, 1994, but does give an accurate statement of the factors that are a background to this opinion. On October 19, 1989, the Michigan Water Resources Commission issued NPDES permits to the communities in the River Rouge watershed. The City of Birmingham, a principal defendant, is one of these permittees. The permits applied to combined sewer overflow discharges. All River Rouge combined sewer overflow program requirements were developed to reflect the goals of the Rouge River remedial action plan ("Rouge R.A.P."), that goal being the elimination of raw sewage discharges and protection of the public health by the year 2005. These permits established three Phases for C.S.O. control. The first phase was to operate, repair and maintain the existing facilities to minimize the discharge or raw sewage while planning was concluded for adequate control. Phase two required that C.S.O.'s be controlled to eliminate the discharge of raw sewage, and protect the public health by the [25 ELR 20805] year 2005. Phase three required that additional controls be applied, if necessary, to comply with water quality standards at times of discharge. Thereafter, Detroit, Wayne and Oakland counties filed a petition before me, requesting that I take jurisdiction over these permit questions. I ruled that I had pendent jurisdiction over the "time and manner in which the parties deal with wet weather flows governed by permit standards." I appointed Dr. Jonathan Bulkley of the University of Michigan as court monitor, to attempt to negotiate a settlement of these issues. While administrative hearings proceeded before the Water Resources Commission, Dr. Bulkley involved the contesting parties and the State regulatory agencies in negotiations, which resulted in a settlement agreement dated June 28, 1991. The document was informally called the "Bulkley Settlement." In accordance with this settlement, the permits issued on October 19, 1989 were revised, and on August 20, 1992, these revised permits were re-issued. It is in accordance with these revised permits issued to the City of Birmingham, that this issue has returned to me. In many of the communities of the watershed there are combined sewers, i.e., those that carry both storm water and wastewater. In order to avoid basement flooding and toilet back-ups, the communities are permitted to discharge excess wet weather overflows into the Rouge River. This discharge contains storm water, snow melt run-off and wastewater. The settlement agreement and the revised NPDES permits seek to secure compliance with federal clean water and pollution laws and to rectify such wet weather pollution problems arising in the watershed. Birmingham, a party in the settlement agreement, is in the process of constructing large retention basins in its domain, one of which is the Linden Park Retention Basin. It is that proposed construction that brings about the filing of the complaint in this action. Pure Waters, Inc. is a not-for-profit membership organization composed primarily of citizens living in and around the City of Birmingham, Michigan. Members of Pure Waters, Inc. include citizens who live adjacent to Linden Part, who complain that defendants' Environmental Assessment and Finding Of No Significant Impact fail to meet the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq., and the Michigan Environmental Protection Act (MEPA), Michigan Compiled Laws §§ 691.1201 et seq.; also that it fails to comply with applicable state and federal water quality standards under the Clean Water Act, 33 U.S.C. § 1251 et seq., and defendants' NPDES permit. Plaintiff specifically alleges that defendants refuse to evaluate water quality compliance for discharge of partially treated combined storm and waste water, fail to assure compliance with the Michigan water quality standards, fail to observe chlorine standards, violate NEPA in refusing to assess groundwater problems at the Linden Park site, and refuse to fairly evaluate a sewer separation alternative. Having filed that complaint, plaintiff then moved on December 14, 1994 for a temporary restraining order to halt the construction of the basin. At a hearing conducted on December 15, 1994, I studied the Oakland County Combined Sewer Abatement Program, which contains the Birmingham combined sewer overflow area project plan. That study is voluminous and is summarized in Section I, a copy of which is attached hereto and incorporated herein. One of the related documents, which was reviewed at the hearing, is the Finding Of No Significant Impact, dated June 1, 1994. This document fully discusses the retention basin project in the City of Birmingham, including the Linden Park project. I quote from the document at page 23: Public participation was the key issue in the evaluation of alternatives and was a critical element in the selection of the proposed project. Numerous newspaper articles have featured the project, along with the other CSO control projects in this area. Newsletters were mailed out and public meetings were held to discuss and inform residents of the project. The public hearing was held on March 29, 1993, at the Birmingham City Commission Room. A presentation was made of the project plan, including the alternatives considered, the environmental impacts anticipated, and the estimated costs. Significant opposition was voiced at this hearing, including concerns over the disruption of Linden Park, loss of property values, destruction of trees along the routes of the collecting sewers, and future requirements for CSO control. In an effort to optimize social acceptability and project implementability, the Citizen's Advisory Committee, referenced earlier, was established. Following the additional evaluation, described previously, and solicitation of public input, using the committee as a forum to resolve concerns, a resolution was passed by the city commission approving and agreeing to implement the modified Linden Park alternative. VIII. AGENCIES CONSULTED IN PLAN PREPARATION Michigan Department of State — History Division Michigan Department of Natural Resources Land and Water Management Division Surface Water Quality Division Southeast Michigan Council of Governments IX. REASONS FOR CONCLUDING NO SIGNIFICANT IMPACTS The water quality benefits anticipated from this project are expected to outweigh the short-term adverse construction impacts. No long-term significant adverse impacts are associated with the project. At the hearing on the motion for a temporary restraining order, it became evident to me that plaintiff's objections were not substantial. It appeared that plaintiff's aim is to prevent the building of the retention basin and to substitute therefor a system of separated sewers throughout the city. Defendants considered this alternative and, I am convinced, rejected it for appropriate reasons. A comparison of the costs of the retention basin and the separated sewers is illuminating. The retention basin and interceptor project is estimated to cost $ 29,861,000, and the separated sewer project, substantially in excess of that, is estimated to be $ 64,498,000.1 See Birmingham CSO Area Project Plan at Section III-8. Plaintiff also argued at the hearing that construction of the retention basin would make pollution in the river worse. Their concerns about the discharge of water quality into the Rouge River are without foundation. The river presently is highly polluted, and the discharge under controlled conditions from the retention basin, after treatment of excess water overflow under wet weather conditions, will certainly not add to the pollution of the river. It will substantially decrease it because the content of the retention basin (over 85%) will not be discharged into the river. In order to prevail, plaintiff must show irreparable harm; that its interests are such that there is a likelihood of success on the merits; also, that there is no injury to the public interest. Washington v. Reno, 35 F.3d 1098, 1099 (6th Cir.1994). Plaintiff fails to satisfy these requirements. The project, as demonstrated, is well underway. To stop its construction now would cause irreparable harm to defendants and to the public interest. Such action is not warranted in view of the compliance by defendants with the requirements of the federal and state Acts. NEPA, 42 U.S.C. § 4331 et seq.; MEPA, M.C.L. §§ 691.1201 et seq.; Clean Water Act, 33 U.S.C. § 1251 et seq. At the hearing, at which I denied the request for a temporary restraining order, I offered plaintiff an opportunity for a further hearing on its conjoined motion for a preliminary injunction. This, plaintiff declined. Instead it requested that I certify my denial of its motion for a restraining order to the U.S. Court of Appeals for the Sixth Circuit. This, I decline to do since there is little or no merit in plaintiff's request. If plaintiff still desires to renew its motion for a preliminary injunction, I will hear it. But I deny plaintiff's motion for a stay of this order denying temporary restraint. Accordingly, plaintiff's motion for a temporary restraining order and for denial of certification is rejected. I also deny plaintiff's motion for a stay of this order denying temporary restraint. OAKLAND COUNTY CSO ABATEMENT PROGRAM BIRMINGHAM CSO AREA PROJECT PLAN FOR COMBINED SEWER OVERFLOW CONTROL [SEE ILLUSTRATION IN ORIGINAL] 1. The annual equivalent cost is $ 3,085,000 and $ 6,391,000, respectively. 25 ELR 20804 | Environmental Law Reporter | copyright © 1995 | All rights reserved |