Chesapeake Bay Village, Inc. v. Costle

• Decision Date: 29 October 1980
• Docket Number: Civ. A. No. M-79-1543.
• Citation: 502 F. Supp. 213
• Parties: CHESAPEAKE BAY VILLAGE, INC., Plaintiff, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency et al., Defendants.
• Court: U.S. District Court — District of Maryland

502 F. Supp. 213

CHESAPEAKE BAY VILLAGE, INC., Plaintiff, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency et al., Defendants.

Civ. A. No. M-79-1543.

United States District Court, D. Maryland.

October 29, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. Michael McWilliams, Tydings & Rosenberg, Baltimore, Md., and Warren K. Rich, Annapolis, Md., for plaintiff.

Russell T. Baker, Jr., U. S. Atty., and Edward M. Norton, Jr., Asst. U. S. Atty., Baltimore, Md., for Douglas M. Costle, Administrator, United States Environmental Protection Agency, and for Jack J. Schramm, Regional Administrator, United States Environmental Protection Agency-Region III.

Thomas G. Redman, Asst. County Sol., Anne Arundel County, Maryland, Annapolis, Md., and John Henry Lewin, Jr. and Sally Spencer Lazzara, Venable, Baetjer & Howard, Baltimore, Md., for Robert A. Pascal, individually and as County Executive, Anne Arundel County, Maryland, and Anne Arundel County.

Stephen H. Sachs, Atty. Gen. of Maryland, and Marc K. Cohen and Susan K. Gauvey, Asst. Attys. Gen., Baltimore, Md., for Charles R. Buck, Jr.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

Plaintiff Chesapeake Bay Village, Inc. (CBV), a land development corporation owning a large tract of land on the Mayo Peninsula in Anne Arundel County, Maryland, brought this suit for declaratory and injunctive relief against the following defendants: Douglas M. Costle,¹ as Administrator of the United States Environmental Protection Agency (EPA); Jack Schramm, as Regional Administrator of Region III of the EPA (collectively referred to as the federal defendants); Robert A. Pascal, individually and as County Executive of Anne Arundel County, Maryland; Anne Arundel County, Maryland, (county defendants)²; and Charles R. Buck, Jr., as Secretary of the Maryland Department of Health and Mental Hygiene (state defendant).

By Order dated August 29, 1980, plaintiff was permitted to file an amended complaint (Paper No. 28) reiterating the allegations set forth in the original complaint and adding new allegations purporting to state a claim against defendant Pascal in his individual capacity. The state and county defendants have renewed their previous motions to dismiss (See Paper Nos. 12, 15, 33), and defendant Pascal, in his individual capacity, has filed a dismissal motion (Paper No. 31).³

I. Nature of the Case

This case involves primarily the construction grant process for sewage treatment plants under the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), 33 U.S.C. §§ 1281 to 1297. Plaintiff contends that the actions of the various defendants, allegedly improper under the FWPCA, resulted in the federal government not awarding Anne Arundel County a grant for a sewage treatment plant large enough to meet the anticipated needs of the Mayo Peninsula.

The amended complaint alleges that plaintiff intends to develop its land on the Mayo Peninsula into a residential subdivision. To do so, plaintiff must comply with Anne Arundel County's subdivision requirements which among other things, mandate the procurement of special exceptions before final approval of the subdivision plat. These special exceptions, however, can be granted only if adequate sewage treatment facilities will exist for the proposed development area. At present, the Mayo Peninsula has insufficient waste water treatment capacity to serve the present population, much less to permit plaintiff to obtain the special exceptions necessary for its residential subdivision.⁴ Moreover, it is disputed whether plaintiff can construct private sewage treatment facilities under the circumstances of this case.⁵

The original sewage treatment proposal for the Mayo Peninsula (Step I facilities plan), presented to the EPA by the state and county defendants in October, 1975, was for a two (2) million gallon per day (mgd) plant.⁶ However, in January of 1977, the EPA disapproved the proposal because it rejected the county's estimated population figures,⁷ and advised the county that it would entertain a grant application only for a one mgd facility. Plaintiff also alleges that the EPA represented that the project would be subjected to a lengthy environmental impact statement (EIS) should the county seek a facility with a capacity larger than one mgd.⁸

Plaintiff next alleges that at the direction of the federal and state defendants, and in accordance with county instructions, the original consultant report was revised and reissued in May, 1977, as the "Mayo Wastewater System Comprehensive Plan."⁹ Plaintiff contends that this plan wrongfully "deleted the anticipated population in Plaintiff's zone," (Amended Complaint, Paper No. 28, at ¶ 25), and that its population projections are at variance with the appropriate Section 208, 33 U.S.C. § 1288, Section 303(e), 33 U.S.C. § 1313(e), and County Master Water and Sewer plans.¹⁰

Based on the revised study, the state and county defendants submitted a grant application for a one mgd facility. Although on September 22, 1977, the federal defendants offered a grant for the construction of a one mgd facility, plaintiff alleges that defendant Anne Arundel County, at the express direction of defendant Pascal, rejected the offer and decided to delay the project "for reasons extraneous to the grant process." (Amended Complaint, Paper No. 28, at ¶ 28).

It appears from the facts alleged that the federal grant process concerning the one mgd facility is still not completed, and that further cost effectiveness studies are being conducted. Additionally, plaintiff asserts that because of the delay involved with these studies, the federal defendants have informed the state and county defendants that a completely revised Step I study is necessary under revised EPA regulations effective April 1, 1980. See 40 C.F.R. § 35.917(c).

II. Defendants' General Objections

Before engaging in a count-by-count analysis of the amended complaint to determine whether plaintiff has asserted claims for which relief can be granted, the court will address various general grounds for dismissal urged by defendants.

The state defendant contends that this case should be dismissed for lack of a party needed for just adjudication. See Rule 19, F.R.Civ.P. The state defendant asserts that the Maryland Department of Natural Resources is a "necessary" party because it has been designated by the governor as the state water planning agency and is partly responsible for developing section 208 and section 303(e) plans. See Md. Ann.Code, Natural Resources Article, §§ 3-106, 8-1404, 8-1405. Since the Department of Natural Resources does appear to be a party in whose absence "complete relief cannot be accorded among those already parties," and its joinder will not deprive the court of subject matter jurisdiction, it shall be made a party defendant.

The state defendant next contends that plaintiff lacks standing to bring this action and that plaintiff's claims are not ripe for adjudication.¹¹ The modern standing requirements were discussed recently by Chief Justice Burger in Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). The Chief Justice commented:

"The essence of the standing inquiry is whether the parties seeking to invoke the court's jurisdiction have `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). As refined by subsequent reformulation, this requirement of a `personal stake' has come to be understood to require not only a `distinct and palpable injury', to the plaintiff, Warth v. Seldon Seldin, 422 U.S. 490, 501 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), but also a `fairly traceable' causal connection between the claimed injury and the challenged conduct. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977)."

438 U.S. at 72, 98 S.Ct. at 2630.

Additionally, a plaintiff must show "an injury to itself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).

Assuming the truth of CBV's factual allegations for the purpose of these motions, it is apparent that it has standing to maintain this action. CBV alleges that the defendants have violated the FWPCA's construction grant provisions, and that the direct result of these violations has been to deprive indefinitely the Mayo Peninsula of an adequate sewage treatment facility. CBV further alleges that the landowners of Mayo Peninsula were legally entitled to have received the federal grant issued in their behalf. CBV asserts direct harm to itself because without sewage facilities it allegedly cannot develop or use its property. A favorable decision could alleviate at least one of the injuries complained of; that is, the alleged indefinite delay in the federal grant process. That such relief would not guarantee CBV success in its development plans does not prevent their having standing to maintain this action. See Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 261-62, 97 S.Ct. 555, 561-62, 50 L.Ed.2d 450 (1977).

The state's ripeness challenge is also without merit. Plaintiff is seeking relief primarily in connection with alleged violations of the FWPCA construction grant provisions. The acts complained of have already occurred, and future events would not add significantly to the availability of operative facts needed for a determination of the parties' dispute. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937). Moreover, prudential considerations embodied in the ripeness...