Lessard v. City of Allen Park
| Citation | 247 F.Supp.2d 843 |
| Decision Date | 25 February 2003 |
| Docket Number | No. 00-75626.,No. 77-71100.,No. 00-74306.,No. 87-70992.,00-74306.,87-70992.,00-75626.,77-71100. |
| Parties | Rachael LESSARD, et al., Plaintiffs, v. CITY OF ALLEN PARK, et al., Defendants. Larry Page, et al., Plaintiffs, v. City of Inkster, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Peter W. Macuga, II, Steven D. Liddle, Macuga & Liddle, Detroit, MI, for Plaintiffs.
Kenneth A. Slusser, Johnson, Rosati, Farmington Hills, MI, R. Craig Hupp, Kurt M. Btauer, Bodman, Longley, Detroit, MI, Thomas A. Bengtson, Geoffrey H. Seidlein, Stacy L. Hissong, Hubbard, Fox, Lansing, MI, Edward D. Plato, Secrest, Wardle, Farmington Hills, MI, for Defendants.
Basement flooding plaintiffs in Bray (00-74510), Ellison (02-71571), Garcia (02-72168), Achatz (02-72201), Lessard (00-74306), Abraham (02-72042), Frank (00-74496), Booker (02-72601), Stewart (00-74885), Allard (02-72068), Page (00-75626), Adkins (02-71882), Radar (00-74440), Jellen (00-74487), Porath (02-72200), Angell (02-72102), Taylor (00-74747), and Grande (02-71113), Swann (02-71486), Edwards (02-71444), Stephenson (02-71522), Hernandez (02-71523), Cammarata (02-71736), and Redmond (01-72716) have filed renewed motions for remand and an emergency motion to the same effect for lack of subject matter jurisdiction.
Since these motions challenge subject matter jurisdiction, I regard the motions to remand as having been filed in all cases.
Since 1977 I have had oversight responsibility as to water quality and pollution problems in the greater Detroit metropolitan area. That area consists principally of three major counties: Wayne, Oakland and Macomb. The City of Detroit, through its agency the Detroit Water and Sewerage Department (DWSD), furnishes water and removes wastewater from the residences and industries in this area, and the communities being served have over four-and-one-half million people.
In 1977 and in 1987, two major cases were brought by the United States Environmental Protection Agency (EPA) against both the Detroit Water and Sewerage Department (DWSD) and the communities it serves, along with Wayne County and the communities it serves through the Wyandotte Wastewater Treatment Plant. These cases were resolved in complex consent judgments which have, over time, been amended. To explain the complex web of relationships created by these consent judgments, further reference to these cases and the consent judgments is necessary.
The case brought in 1977 by EPA against the City of Detroit and its agency, DWSD, also named all the communities, i.e., the cities and counties to which DWSD provided the service of wastewater removal. The Downriver communities1 were named as defendants. A complex consent judgment was negotiated and approved by this court and, through this consent judgment, as amended, strict requirements have been imposed, both on DWSD and the communities that it serves.
DWSD is one of the largest governmental utilities providing water and wastewater service in the United States. In this region there is also another large wastewater treatment plant, and it serves the Downriver communities. It is known as the Wyandotte Wastewater Treatment Plant, and from that case there resulted a second complex consent judgment governing the relationships between Wayne County, the Wyandotte Treatment Plant, and the Downriver communities in the removal and treatment of wastewater. These consent judgments also directly affect the issue of subject matter jurisdiction.
It is these two consent judgments and their amendments that result from the case brought by EPA in 1977 and 1987. The 1977 Consent Judgment (Exhibit A), filed September 14, 1977, and approved by me on that date, was amended in 1980. It is to that amendment that I now turn.
The 1980 Amended Consent Judgment (Exhibit B) requires DWSD to "submit for approval a Master plan to develop and implement an Industrial Waste Pretreatment and Commercial User Control Program." (1980 Amended Consent Judgment at p.10). These industrial waste control ordinances were to be adopted by DWSD and its customer suburbs and gave DWSD the right to monitor and inspect the quality of sewage. (1980 Amended Consent Judgment at p.11). Additionally, (1980 Amended Consent Judgment at p.11).
One of the pervasive problems referred to in the consent judgments related to wet weather problems.
On August 25, 1983, EPA issued National Pollution Discharge Elimination System (NPDES) Permit No. MI0022802 to DWSD. On June 8, 1984, I took judicial notice of this permit and retained jurisdiction and "full and complete power" over the resolution of yet unsatisfied requirements of the Amended Consent Judgment.
In 1989 the Michigan Department of Natural Resources (MDNR, now the Michigan Department of Environmental Quality (MDEQ)) issued proposed NPDES permits for CSOs (Combined Sewer Overflows) serving the Rouge Valley communities, to which the communities objected. On November 7, 1989, I filed an Opinion and Order which held that I have jurisdiction to consider objections to the NPDES permit proposed by MDNR, and I took jurisdiction over the implementation of CSO standards established in the NPDES permit. This included the time and manner in which DWSD and the communities it serves meet the permit's standards. (November 7, 1989 Opinion and Order at pp.11-12) (Exhibit C). I clarified the scope of my jurisdiction in a December 21, 1989 Memorandum Opinion and Order in which I held that "I have jurisdiction over all issues involving NPDES permits regarding the time and manner in which the parties must deal with wet weather flow violations." Id. at 1.
In 1991, Wayne and Oakland Counties petitioned this court for declaratory relief, seeking relief from their NPDES permits. In the alternative, they petitioned me to declare that MDNR issue all NPDES permits jointly to Wayne and Oakland Counties and the particular municipalities to which they apply. I noted in my Opinion and Order of December 23, 1991, at pp.10-11, that
There can be no doubt that the CSO problems alone now being addressed by the parties and this court are regional problems and that any effective solution to the overflow problems will involve all of the communities in each drainage or river basin in Southeastern Michigan. Nor can there be any doubt that leaving the parties to negotiate each and every permit and the means by which to comply and finance compliance with such permits has only served to elevate the political and parochial differences among the parties above the common goal of solving the overflow problem.... The creation of a regional sewer consortium or authority would allow the parties to address issues of non-point source pollution, the coordination of discharge control measures across political boundaries, uniform financing and any other issue arising in the remedial process.
Thus, I granted Wayne and Oakland Counties' petition for declaratory relief and ordered the issuance of a regional NPDES permit.
In 1962, Wayne County and the Downriver communities contracted to establish the Downriver Sewer System to provide adequate transportation and treatment of sewage originating in the Downriver communities. See Downriver Sewage Disposal System Contract, March 1, 1962 (1962 Contract) (Exhibit E). The contract recognized that "[i]t is immediately necessary and imperative for the public health and welfare of the present and future residents of the above cities and townships that adequate and proper sewage disposal facilities be acquired and constructed to serve said municipalities or parts thereof lying with the district hereinafter described...." See 1962 Contract at 1.
The Contract included specific provisions requiring both improvements to the existent facilities and the construction of new facilities to serve the Downriver communities. See 1962 Contract at Part I, Division I, et seq. It specified design characteristics of the sewer system, including the maximum rate of flow. It allocated this cost among the Downriver communities by percentages, and outlined its financing method through the issuance of bonds. The Contract required each community to purchase both interceptor and wastewater treatment plan capacity from Wayne County. Each community was responsible for any sewage in excess of the purchased amount.
In 1987, EPA and MDEQ sued Wayne County and Downriver communities, charging violations of federal and state water quality laws due to the failure of the Downriver Sewer System to comply with required water quality standards. The parties thereupon entered into a consent judgment (May 1994), and accepted constant monitoring by the court to ensure their compliance.
The 1987 Consent Judgment (Exhibit F) mandated that Wayne County and the Downriver communities develop a plan to bring the Downriver Sewer System into compliance with the Clean Water Act and state law.2 A 1994 Financing Plan and Final Judgment, entered concurrently with the Consent Judgment, outlined the financial obligations of Wayne County and the Downriver communities. See 1994 Financing Plan and Final Judgment (1987 Case Financing Plan) (Exhibit G). This Consent Judgment and the financing plans imposed significant financial burdens on Wayne County and the Downriver communities.
The 1987 Consent Judgment is a comprehensive agreement which outlines in detail all aspects of the operation, management and maintenance of the Downriver Sewer System. It establishes a compliance...
To continue reading
Request your trial
-
Hudgins Moving & Storage Co. v. American Exp. Co.
...law claim arising from the same set of facts, [whether] the federal court [can] entertain the latter suit.'" Lessard v. City of Allen Park, 247 F.Supp.2d 843, 860 (E.D.Mich.2003) (internal citations omitted). American Express contends that, because a federal court has exerted jurisdiction o......
-
Lessard v. City of Allen Park
...and will not restate them here. See, e.g., Lessard v. City of Allen Park, 249 F.Supp.2d 871 (E.D.Mich.2003); Lessard v. City of Allen Park, 247 F.Supp.2d 843 (E.D.Mich.2003). I gave my preliminary approval to the proposed settlement on February 23, 2005. The settlement was reached only leng......