Mid-Shiawasee County Concerned Citizens v. Train

Nos. 5-40016 and 5-71876 (E.D. Mich. January 23, 1976)

ELR Digest

The court grants summary judgment to the Environmental Protection Agency (EPA) in this action to review its decision not to prepare an environmental impact statement under the National Environmental Policy Act (NEPA) concerning approval of a sewage treatment plant construction grant under the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), 33 U.S.C. § 1251, ELR 41101, for Owosso, Michigan. A parallel action against the Michigan Department of Natural Resources (DNR) under NEPA and the Michigan Environmental Protection Act, Mich. Comp. Laws Ann. § 691.1201, ELR 43001, is consolidated with the present action. Jurisdiction lies under the Administrative Procedure Act (APA), 5 U.S.C. § 701.

Owosso applied to EPA under the FWPCA for a grant to upgrade its existing physical-chemical treatment plant. During the approval process, EPA issued a negative declaration that no impact statement was required under NEPA. See 40 C.F.R. § 6.212, ELR 46199. Some federal judicial circuits have employed the arbitrary and capricious standard of review under the APA in reviewing an agency's determination not to file an impact statement. First Nat'l Bank of Chicago v. Richardson, 484 F.2d 1369, 3 ELR 20771 (7th Cir. 1973); Hanly v. Kleindienst, 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972). Others have used a reasonableness standard. Hiram Clark Civic Club v. Lynn, 476 F.2d 421, 3 ELR 20287 (5th Cir. 1973).

In the absence of a specific ruling by this circuit, the court adopts the arbitrary and capricious standard. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971). The agency's legal determination of "significance" under NEPA is subject to de novo review. See First Nat'l Bank of Chicago v. Richardson, supra; Hanly v. Kleindienst, supra. In issuing a negative declaration, NEPA and EPA's own regulations require the preparation of, in effect, a mini-impact statement, to insure that no significant environmental factor is overlooked. On defendant's motion for summary judgment, it is appropriate for the court to consider whether plaintiff raises substantial environmental issues. Hiram Clark Civic Club v. Lynn, supra.

Plaintiff's contention of bias in the consulting firm hired to study the feasibility of expanding the sewage plant as compared to a land treatment alternative is without merit. EPA's review of the grant application was independent and free from bias. The assessment of alternatives submitted to EPA constituted a valid record for decision. Environmental Defense Fund v. Corps, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972). Nor does the consultant's recommendation against land treatment prior to undertaking the assessment invalidate the decision, since NEPA demands only good faith objectivity. Sierra Club v. Callaway, 499 F.2d 982, 4 ELR 20731 (5th Cir. 1974). Conflicting scientific theories do not raise material issues of fact when the sufficiency of a negative declaration is at issue. Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 1 ELR 20469 (D.C. Cir. 1971). The review agency found that the grantee had generated a record of all alternatives. NEPA does not require a scientific justification for the assumptions of an agency in analyzing such a record. Plaintiff's request for additional time in which to conduct discovery is also without merit, since this is not a case where supporting affidavits are unavailable within the meaning of Rule 56. See Nielson v. Seaborg, 348 F. Supp. 1369, 2 ELR 20765 (D. Utah 1972). And plaintiff has not used the time available to it to conduct discovery.

EPA's analysis showed the selected physical-chemical process to be superior to any alternative in terms of waste removal capability and adverse environmental impacts, especially in light of the land treatment system's social impact of purchasing six to eight thousand acres of productive land. These findings are the basis for EPA's negative declaration, and are not arbitrary or capricious.

Plaintiff's other contentions, under the FWPCA, must also fail. The FWPCA encourages, but does not require, that waste treatment projects provide for recycling of depletable resources. 33 U.S.C. § 1281(d)(1). Nor does the FWPCA require that pollutant discharges be eliminated by 1985, since this is merely a national goal. 33 U.S.C. § 1251(a)(1). Plaintiff's claims approach the hypercritical, and thus fall beyond the ambit of court review.

Similarly, plaintiff's action against the state DNR in approving the treatment plant grant must fail. State approval is statutorily contingent upon federal approval. Mich. Comp. Laws Ann. § 323.113. Grant of summary judgment to the federal defendant applies with equal force to the DNR. Nor does the NDR's approval of federal or state aid violate the Michigan Environmental Protection Act. Plaintiff has not shown that the DNR's conduct "has or is likely to pollute, impair, or destroy the air, water or other natural resources or the public trust therein." Mich. Comp. Laws Ann. § 691.1203, ELR 43001.

The complete text of this opinion is available from ELR (41 pp. $5.25, ELR Order No. C 1030).

Counsel for Plaintiff
Clark Shanahan
Owosso MI 48867
(517) 723-5203

Counsel for Defendant Environmental Protection Agency
John Patrick Conley, Asst. U.S. Attorney
600 Church St.
Flint MI 48502
(313) 234-5621

Counsel for Defendant Michigan Department of Natural Resources
Stewart H. Freeman, Asst. Attorney General
Law Building
Lansing MI 48913
(517) 373-1130

Joiner, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]