United States v. Michigan

No. Civ.A. 77-71100 (122 F. Supp. 2d 785) (E.D. Mich. November 22, 2000)

ELR Digest

The court holds that a Michigan confined disposal facility (CDF) run by the U.S. Army Corps of Engineers (the Corps) must accept dredged materials that were accumulated to determine the environmental impacts that the construction of a combined sewer overflow (CSO) retention basin will have on a creek. In 1974, the United States, the state, and the Detroit Water and Sewerage Department (DWSD) entered a consent decree to address several Clean Water Act (CWA) violations. In 1997, to address certain national pollutant discharge elimination system violations by the DWSD, the original consent decree was amended to require construction of the CSO basin. The amended decree required the dredging at issue. In order to receive CWA state revolving fund funding (SRF) for the CSO basin, the DWSD is required to identify where the dredged material will be disposed of, but the Corps would not agree to accept the materials at its CDF.

The court first holds that it has jurisdiction to order the Corps to accept dredged materials. The amended decree was entered in conformity with the CWA, and that case was properly before the court. Under the All Writs Act, the court may issue all writs necessary or appropriate in aid of their respective jurisdictions. This authorizes a federal court to issue such commandsas may be necessary to effectuate and prevent the frustration of orders it has previously issued. Moreover, the Corps is sufficiently related to the resolution of the sewage disposal problem. In addition, the underlying issue presents a federal question grounded in the CWA. The court next holds that the Corps must accept the dredged material. The disposal of the material into the CDF is not a new use of the facility that was not contemplated at the inception of the facility. The Rivers and Harbors Act, which authorizes the CDF, does not preclude the use of the CDF for non-navigational dredged materials. Moreover, the 1974 decree does not limit the CDF to navigational dredge materials only. In addition, the Corps has determined that the disposal of environmental dredge at the CDF is permissible. Also, the levels of toxins in the dredged material are not beyond the site's capability. Further, a new indemnification agreement demanded by the Corps is not necessary because under the agreement that authorized the CDF, the state contracted to hold the United States free from any liability connected with the operation of the site. Moreover, although the dredging is not scheduled to begin until 2002, the need to qualify for SRF funding demands immediate action and, thus, supports injunctive relief.

The full text of this opinion is available from ELR (9 pp., ELR Order No. L-302).

Counsel for Plaintiff
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
John Leone
Attorney General's Office
Natural Resources Division
300 S. Washington St., Ste. 315, Lansing MI 48913
(517) 373-7540

[31 ELR 20307]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]