RITE-Research Improves Environment, Inc. v. Costle, 78-2278

Decision Date26 May 1981
Docket NumberNo. 78-2278,78-2278
Citation650 F.2d 1312
Parties, 11 Envtl. L. Rep. 20,825 RITE RESEARCH IMPROVES the ENVIRONMENT, INC., Plaintiff-Appellant, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Etc. et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Fleming & Neuman, Joseph Z. Fleming, Miami, Fla., for plaintiff-appellant.

Michael McCord, James W. Moorman, Edward J. Shawaker, Maria A. Iizuka, Dept. of Justice, Land and Natural Resources Div., Lisa Friedman, Atty., U. S. Environmental Protection Agency, Washington, D. C., Mary Ella Johnson, Asst. U. S. Atty., Miami, Fla., for Douglas M. Costle and the Environmental Protection Agency.

Terry Cole, Deputy Counsel, Dept. of Environmental Regulation, Tallahassee, Fla., for Dept. of Environmental Regulation.

Peter S. Tell, Asst. County Atty., Miami, Fla., for Metropolitan Dade County.

William P. Burns, Asst. Gen. Counsel, Miami, Fla., for Miami-Dade Water and Sewer Authority.

Andrew H. Moriber, Asst. City Atty., Joseph A. Wanick and John A. Ritter, City Attys., Miami Beach, Fla., for City of Miami Beach.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG, CHARLES CLARK and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

RITE Research Improves the Environment, Incorporated, plaintiff-appellant in this action, appeals the award of summary judgment in favor of defendants. The federal defendants in this action are Douglas M. Costle, Administrator of the Environmental Protection Agency, and the Environmental Protection Agency ("EPA"); the state defendants are the State of Florida and the Department of Environmental Regulation ("DER"); the metropolitan defendants are the Miami-Dade Water and Sewer Authority and Metropolitan Dade County. The City of Miami Beach was joined as a necessary party defendant. In October, 1976, RITE sued the defendants under the Federal Water Pollution Control Act Amendment of 1972, Pub.L. 92-500, 86 Stat. 816 ("FWPCA"), and in January, 1978, RITE amended its pleadings to include suit under the Clean Water Act of 1977, Pub.L. 95-217, 91 Stat. 1566 ("CWA"). The trial court granted the defendants' motions for summary judgment on the ground that RITE had no standing to maintain the action. 78 F.R.D. 321 (S.D.Fla.1978). We reverse.

I. Phase I: The Initial Application

Plaintiff RITE is a nonprofit corporation whose members are committed to the installation of a research pilot project to demonstrate a method of sewage disposal in Southeast Florida termed "deep current assimilation." RITE contends that this method of sewage disposal is uniquely suited to the geography of Southeast Florida because of the unusual proximity of the Gulf Stream which would alleviate the necessity of secondary treatment of raw sewage through chemical processing.

On November 2, 1971, the City of Miami Beach approved a $10,500,000 bond issue for the purpose of building a sewage transmission line from Miami Beach to a secondary sewage treatment plant located on Virginia Key. Shortly after validation of the bond issue, 1 however, the City of Miami Beach requested information on deep water assimilation of sewage effluent as an alternative to the Virginia Key sewage treatment plan. Although the City had already entered into contracts with the Miami-Dade Sewer and Water Authority, the City had recently received information regarding new research by the Sea Grant program at the Rosenstiel School of Marine and Atmospheric Sciences, at the University of Miami. This research suggested that deep current sewage assimilation would be safer for effluence from residential communities than the secondary treatment with its near shore chemical discharge. 2

As a result of this scientific data, on November 11, 1974, the City Commission voted to submit an application to the EPA for approval of a deep current assimilation project. The application was filed pursuant to Section 105 of the FWPCA, 33 U.S.C. § 1255, which provided for funding with special federal grants for research and development. 3 Included with the City's application were a description of the proposed project by the Director of Public Works for the City of Miami Beach, the Carpenter report, supra, "Deep Water Assimilation of Miami Beach Waste Waters: Evaluation of Compliance with Federal Regulations and Criteria, Ocean Dumping," and a legal opinion letter by special counsel for the city concluding that the deep current assimilation project was "supported by substantial competent evidence and in accordance with the essential requirements of law including Public Law 92-500 (FWPCA)." Furthermore, the application expressed the City's belief that "(b)oth the capital investment and the operating cost of the deep current assimilation method of disposal would be approximately 1/8th that of secondary treatment." The application concluded that the "City Council and the City Administration of Miami Beach consider the project to be sound and meritorious and to offer a means of demonstrating how at least a half a billion dollars can be saved in waste water treatment in Southeast Florida."

The EPA took the position that the proposed project was not permissible under the FWPCA, and on January 23, 1975, formally denied the application. The EPA contended that Section 301(b)(1)(B) of the FWPCA, 33 U.S.C. § 1311(b)(1)(B), required that all sewage effluents undergo secondary treatment, and informed the City by letter that:

P.L. 92-500 requires secondary treatment for all discharges from publicly owned treatment works by 1977/1978. We have concluded that legally there can be no waiver of the secondary treatment requirement even for a research project. Therefore, we could not participate in the project ... unless existing Federal laws were amended.

II. Political and Economic Pressure

On appeal we must focus upon the facts following the EPA's denial of the city's application because of appellant's contention that the federal government engaged in a pattern of conduct amounting to "bureaucratic blackmail" in order to illegally coerce the city into complying with the EPA's position requiring secondary treatment. On February 19, 1975, the Miami Beach City Council reapplied for approval of the research project because of its continued belief that the project was lawful under the FWPCA, and because of "the magnitude of the savings in public funds involved." R., Vol. I, 9. On May 14, 1975, the City called a meeting during which special legal counsel for the City reasserted that the demonstration project was lawful. The Council then voted to authorize the filing of suit in federal district court against the EPA, seeking a declaratory decree "that the City's proposal for a demonstration project is consistent with federal, state and local pollution control laws." Id.

Following the City's authorization of suit, RITE contends that the Environmental Protection Agency and Administrator Train indicated to City Council representatives and to the Florida Department of Environmental Regulation (DER) that federal funding for sewage treatment would be withdrawn unless the City agreed before May 30, 1975, to proceed without modification according to the Environmental Protection Agency original proposal. R., Vol. I, 10. RITE further contends that the EPA made statements that, in addition to the loss of $13,000,000 in sewage project funds, the City of Miami Beach could expect "to have difficulty in the future in connection with any federal funding of 'HUD grants' in connection with public housing." Id.

In its complaint, plaintiff alleges sufficient facts to establish a prima facie case that coercive political and economic pressures were brought to bear upon the City of Miami Beach, with the result that the City withdrew its opposition to the Administrator's interpretation of the FWPCA. Significantly, only one week after the City voted to authorize suit, the City voted to rescind its previous authorization. The Councilmen at that May 21, 1975, meeting furthermore confirmed that the reason they were changing their vote, and were not allowing the special counsel to proceed with a declaratory judgment suit, was because they did not want to risk retaliatory action by the federal government. At the May 21 City Council meeting one City Councilman stated that:

(T)he proponents of entering into the suit speculated that we would not be attacked or punished (on May 14, 1975) .... However, I would like to point out that as of this morning, a telegram, forwarded to us by E.P.A. ... takes part of this discussion out of the arena of speculation and puts us into the arena of fact .... Now we can, of course, speculate further as to what a Federal Judge or some other benefactor might or might not do, but we know what we're up against. We're up against the immediate loss of $700,000 and possibly more, we're up against a written threat to remove the $13,000,000 Federal funding for a transmission line, we are up against a written threat that we may well be forced to comply ....

R., Vol. IV, 743-44 (emphasis supplied).

Similarly, RITE's contention that the City felt intimidated by the capacity for "built-in retribution" inherent in the EPA's processing of federal H.U.D. grants is supported by the statements of City Councilman Redford:

I will say this, there is one built-in retribution and it is not done from any rancor whatsoever and it is public housing. Public housing has to check through E.P.A. before it is granted. It is a normal course of events, the public housing has to go through E.P.A. to see if there's a proper sewage disposal system. This was jangled before us for many years, saying, "you're not going to get any HUD grants because HUD has to check through the E.P.A., and if you don't have the system, you don't get it," and we have had problems in the southern part of Dade County on housing because of not having an accepted system...

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