Mid-Shiawassee Cty. Concerned Citizens v. Train, Civ. A. No. 5-40016 and 5-71876.

Decision Date23 January 1976
Docket NumberCiv. A. No. 5-40016 and 5-71876.
Citation408 F. Supp. 650
PartiesMID-SHIAWASSEE COUNTY CONCERNED CITIZENS, Plaintiff, v. Russell E. TRAIN, Administrator of the United States Environmental Protection Agency, and Howard E. Tanner, Director of the Michigan Department of Natural Resources, Defendants.
CourtU.S. District Court — Western District of Michigan

COPYRIGHT MATERIAL OMITTED

Clark Shanahan, Shanahan & Scheid, Owosso, Mich., for Mid-Shiawassee.

Gilbert Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., for City of Owosso.

Thomas M. Woods, Asst. U. S. Atty., Detroit, Mich., for E.P.A.

Thomas J. Emery, Asst. Atty. Gen., Lansing, Mich., for Dept., of Natural Resources.

OPINION AND ORDER

JOINER, District Judge.

This is an action by a citizens' group to force defendants to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq., and the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq., as well as various state laws in their approval of federal and state grant assistance for the construction of a physical-chemical waste water treatment facility to be located in the City of Owosso, Michigan. Jurisdiction lies under the Administrative Procedure Act, 5 U.S.C. § 701.

Plaintiffs' lawsuit is directed at the defendants' failure to require the City of Owosso to buttress its grant application with a full environmental impact statement (EIS). Instead, defendant Train, after an examination of the grant application, supporting environmental assessments of the proposed project, and results of public hearings issued a "negative declaration" and an appraisal concluding that the Owosso project would not significantly affect the quality of the human environment to a degree necessitating the preparation of an EIS.

Plaintiff charges that Owosso's federal grant application, which proposes to construct a waste water treatment plant utilizing a physical-chemical mode of treatment, fails to objectively disclose known environmental consequences and to explore alternative courses of action as required by NEPA. Plaintiff also alleges that the application misrepresented a land treatment alternative advocated by plaintiff and that the consulting engineers hired by Owosso to prepare an environmental assessment for the project were biased against land treatment.

* * * * * * Based upon the administrative record underpinning EPA's issuance of the negative declaration, the defendants have moved to dismiss the complaint or in the alternative for summary judgment on the ground that EPA's decision was not arbitrary or capricious. Plaintiff opposes the motion and urges that summary judgment is inappropriate because of material issues of fact raised in an affidavit executed by plaintiff's counsel and because plaintiff has not yet had an opportunity to conduct necessary discovery.

Defendants' motions raise two primary issues: (1) whether assertions in counsel's affidavit about bias in the selection of a physical-chemical mode of treatment over a land treatment alternative and statements indicating a difference in scientific opinion over the merits of physical-chemical as opposed to land treatment give rise to material disputes of fact which prohibit summary judgment; and (2) whether, assuming that summary judgment is proper, the administrator's decision not to require Owosso to prepare an EIS was arbitrary or capricious. These motions also raise subsidiary issues concerning the appropriate standard of review in this type of case as well as the integrity of the administrative record when it is offered in support of a motion for summary judgment.

For the reasons which follow, the court holds that counsel's affidavit and plea for further discovery do not preclude summary judgment, that EPA's issuance of a negative declaration with regard to Owosso's grant application was not arbitrary or capricious, and that DNR's approval of a state grant and issuance of construction permits on the Owosso project violates neither federal nor state law.

* * * * * *

Standards Governing Judicial Review of Agency Action

NEPA requires the preparation of an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Where, as here, the responsible federal agency concludes that an EIS is not required, that agency must issue a "negative declaration" supported by an "environmental impact appraisal" on the proposed action. 40 C.F.R. 6.212 (1975).

Courts have applied two different standards of review under the Administrative Procedure Act to an agency's factual determination that an impact statement is not required. Some courts hold that an agency's findings may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See, e. g., First National Bank of Chicago v. Richardson, 484 F.2d 1369, 1373 (7th Cir. 1973); Hanly v. Kliendienst, 471 F.2d 823, 829 (2d Cir. 1972); Smith v. City of Cookeville, 381 F.Supp. 100, 111 (M.D. Tenn.1974). Other courts hold that a federal agency's decision not to require an EIS should be tested by a "reasonableness" standard. See, e. g., Hiram Clarke Civic Club v. Lynn, 476 F.2d 421, 425 (5th Cir. 1973); Simmans v. Grant, 370 F.Supp. 5, 12 (S.D.Tex.1974). In the absence of a specific directive from this circuit, the court concludes that the "arbitrary or capricious" standard is appropriate in this case. See Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

Regardless of the standard of review applied to an agency's factual findings, the agency should affirmatively develop a reviewable record for the court and its legal determination of "significance" ("actions significantly affecting the quality of the human environment") is subject to de novo review. See, e. g., First National Bank of Chicago v. Richardson, supra, at 1373; Simmans v. Grant, supra, at 17. The best exposition of the applicable test comes from Hanly v. Kliendienst, supra:

"In deciding whether a major federal action will `significantly' affect the quality of the human environment the agency in charge, although vested with broad discretion, should normally be required to review the proposed action in the light of at least two relevant factors: (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it, and (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area. . . ."

471 F.2d at 830-31. The fifth circuit has observed that attention must also be focused on the possibility of some "significant degradation of some human environmental factor (even though other environmental factors are affected beneficially or not at all.)" Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973).

EPA's own regulations outline the procedures applicable to issuance of a negative declaration. First, the grantee must submit an "environmental assessment" of the proposed project. Second, EPA must conduct an "environmental review" to determine whether the proposed action may have a significant impact upon the environment. Third, if EPA concludes that an EIS is not required, it must issue a "negative declaration" to that effect, supported by an "Environmental Impact Appraisal" which describes the basis for the agency's conclusion that no EIS is required. See 40 C.F.R. § 6.200 et seq. (1975).

In effect NEPA and the Regulations contemplate that a grantee prepare a "mini EIS", a product of consultation with appropriate agencies and authorities, although not in the detail required of an impact statement. See Hanly v. Kliendienst, supra, at 832; Simmans v. Grant, supra, at 17. Thus, the grantee's environmental assessment should reflect a systematic, interdisciplinary approach to insure that, in deciding not to require an impact statement, no significant environmental factor is overlooked. The reviewing agency, in this case EPA, must identify and develop methods and procedures for review which will give appropriate consideration to presently unquantified environmental amenities, including public input on the proposed action. Moreover, there must be some consideration and discussion of appropriate alternatives to the project or its more objectionable features. See 42 U.S.C. § 4332(A), (B), & (C); Hanly v. Kliendienst, supra, at 834-36; Simmans v. Grant, supra, at 17-18.

The current procedural posture of this case also warrants some comment. Only one case, Hiram Clarke Civic Club v. Lynn, supra, has addressed the problem of the record upon which a court may review an agency's issuance of a negative declaration:

". . . only if a plaintiff raises substantial environmental issues should a court proceed to examine and weigh the evidence of both the plaintiff and the agency to determine whether the agency reasonably concluded that the particular project would have no effects that would significantly affect our environmental quality. Only if the plaintiff can show an inadequate evidentiary development before the agency should the District Court supplement the deficient administrative record by taking evidence on the environmental impact of the project."

476 F.2d at 425; see Save Our Ten Acres v. Kreger, supra, at 467. As noted previously, the defendants have moved to dismiss or in the alternative for summary judgment based upon the "administrative record" compiled by EPA, consisting of the MacMullen affidavit, the Owosso grant agreement and supporting documentation. Under Hiram Clarke, it is appropriate for the court to consider whether the material submitted by plaintiff in opposition to the motions raises "substantial environmental issues" or demonstrates "inadequate evidentiary development" such as might preclude summary judgment.

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