PURE WATERS v. Michigan Dept. of Natural Resources, Civ. A. No. 94-74869.

• Decision Date: 21 April 1995
• Docket Number: Civ. A. No. 94-74869.
• Citation: PURE WATERS v. Michigan Dept. of Natural Resources, 883 F.Supp. 199 (E.D. Mich. 1995)
• Parties: PURE WATERS INC., a not-for-profit corporation, Plaintiff, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Roland Harms, Director; Oakland County Drain Commission, George W. Kuhn, Commissioner; Chapter 20 Birmingham Combined Sewer Overflow Drain Board, George W. Kuhn, Chairman; City of Birmingham, Thomas M. Markus, City Manager, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

883 F. Supp. 199

PURE WATERS INC., a not-for-profit corporation, Plaintiff, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Roland Harms, Director; Oakland County Drain Commission, George W. Kuhn, Commissioner; Chapter 20 Birmingham Combined Sewer Overflow Drain Board, George W. Kuhn, Chairman; City of Birmingham, Thomas M. Markus, City Manager, Defendants.

Civ. A. No. 94-74869.

United States District Court, E.D. Michigan, Southern Division.

April 21, 1995.

Jean Ligon, Ligon & Naber, Brighton, MI, David S. Bailey, Beaverdam, VA, for plaintiff.

John Scherbarth, Asst. Atty. Gen., Lansing, MI, for defendant MDNR.

Timothy J. Currier, P. Daniel Christ, Beier Howlett, P.C., Bloomfield Hills, MI, for defendant City of Birmingham.

Miller, Canfield, Paddock & Stone, Detroit, MI, for defendant Oakland County Drain Com'n and Chapter 20 Birmingham CSO Drain Bd.

OPINION AND ORDER DENYING PLAINTIFF'S REQUEST FOR AN INJUNCTION

FEIKENS, District Judge.

I. Background

The City of Birmingham, Michigan (Birmingham), the Oakland County Drain Commission and the Chapter 20 Birmingham Combined Sewer Overflow Drain Board are in the process of constructing a large retention basin (RTB) in Linden Park, a public park in Birmingham.¹ It is the approval of the Linden Park RTB by the regulatory agencies and Birmingham that led to the filing of the complaint in this action. Defendants argue that the RTB is necessary because Birmingham has combined sewers that carry both storm water and waste water. On "dry weather days", when there is little or no precipitation or snow melt, sewage from Birmingham's combined sewers is transported to the Detroit Waste Water Treatment Plant via the Evergreen-Farmington Sewage Disposal Interceptor (Evergreen-Farmington Interceptor) and treated at that site.² On "wet weather days", days in which the amount of water exceeds the capacity of the Evergreen-Farmington Interceptor, due to precipitation or run-off, thirty-three overflow outfalls dump excess combined sewer wastewater into the Rouge River (River or Rouge). Discharging this CSO into the Rouge without treatment jeopardizes the health and welfare of the people in the communities on the Rouge, because the CSO contains elevated levels of disease causing organisms, human waste material, solid waste particles, fertilizer and toxic industrial waste. Simply preventing all discharge of CSO into the Rouge on wet weather days is no solution, since that would force the Evergreen-Farmington Interceptor to become congested and basement flooding, toilet-backups and other similar problems would occur. Instead, it is necessary to limit the amount of discharge of untreated CSO into the River as much as possible, without allowing the Evergreen-Farmington Interceptor to back-up. The RTB will accomplish this task by impounding the majority of the CSO and bleeding it back into the Evergreen-Farmington Interceptor on dry weather days. The remainder of the CSO will be treated and released into the Rouge. The parameters of the RTB are discussed further herein.

Defendant Michigan Department of Natural Resources (MDNR) is involved in this case for two reasons. First, under the mandate of the Clean Water Act (Act), 33 U.S.C. § 1251 et seq., and as the agent of the Environmental Protection Agency (EPA), MDNR regulates the discharge of CSO. In fulfilling this duty MDNR issues National Pollution Discharge Elimination System (NPDES) permits. These permits require communities to follow the strictures of the Act as closely as possible, but recognize that complete and instantaneous elimination of pollution is impossible and, therefore, allow communities to discharge CSO into bodies of water when necessary. Second, MDNR is responsible for insuring that public and private entities follow federal and state environmental guidelines. This responsibility includes preparing Environmental Assessments (EA) and Findings of No Significant Impact (FONSI) after appraising proposed construction that may affect the environment.

Plaintiff is a not-for-profit membership organization composed primarily of citizens living in and around Birmingham. Members of Pure Waters, Inc. include citizens who live adjacent to Linden Park. Plaintiff's complaint states that the process leading to approval of the Linden Park RTB and defendant MDNR's EA and FONSI fail to meet the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq., the Michigan Environmental Protection Act (MEPA), Michigan Compiled Laws §§ 691.1201 et seq., applicable state and federal water quality standards under the Act, 33 U.S.C. § 1251 et seq., and defendants' NPDES permit. In support of its request for an injunction, plaintiff alleges that it will suffer irreparable harm because defendants refused to evaluate water quality compliance for discharge of partially treated CSO under the Act and the NPDES permit, failed to observe chlorine standards under NEPA and MEPA, and violated NEPA and MEPA in refusing to assess groundwater problems at the Linden Park site and the feasibility of sewer separation.

Defendants proffer the following counter-arguments: (1) plaintiff cannot meet the preliminary injunction standard; (2) plaintiff cannot show a significant environmental impact under NEPA; (3) plaintiff cannot establish a prima facie case under MEPA; and (4) plaintiff's action is barred by the doctrine of laches.

On December 14, 1994, plaintiff moved for a temporary restraining order (TRO) to halt the construction of the RTB. At the hearing it became evident to me that plaintiff's objections were not substantial. It appeared that plaintiff's aim was to prevent the building of the RTB and to substitute therefor a system of separated sewers throughout Birmingham. Plaintiff also argued that construction of the RTB would increase pollution in the Rouge.

In an opinion dated December 23, 1994, 873 F.Supp. 41, I ruled that defendants considered the sewer separation alternative and rejected it for appropriate reasons and that plaintiff's concerns as to the discharge of water quality into the Rouge River were without foundation. I offered plaintiff an opportunity for a further hearing on its conjoined motion for a preliminary injunction. Plaintiff declined this offer. Plaintiff then appealed to the United States Court of Appeals for the Sixth Circuit and requested that that court stay the denial of the TRO, enjoin all activities pending appeal, and grant a TRO until I conducted a hearing on a preliminary injunction. Plaintiff's appeal was denied on January 19, 1995.

Subsequent to this denial, plaintiff filed a motion for a preliminary injunction.³ On March 22, 1995, I heard plaintiff's motion. At a full evidentiary hearing plaintiff advanced essentially the same arguments to support an injunction that it offered to support a temporary restraining order.

Prior to examining the issues now raised, it is important that I again fully explain the process leading to approval of the Linden Park RTB. On October 19, 1989, the Michigan Water Resources Commission issued NPDES permits to the communities in the Rouge Watershed. The permits applied to combined sewer overflow discharges. All Rouge combined sewer overflow program requirements were developed to reflect the goals of the Rouge River Remedial Action Plan (Rouge R.A.P.), that goal being the elimination of raw sewage discharges and protection of the public health by the year 2005.⁴

The Rouge R.A.P. established three phases for CSO control. The first phase was to operate, repair and maintain the existing facilities to minimize the discharge of raw sewage while planning was concluded for adequate control. Phase two required that CSO's be controlled to eliminate the discharge of raw sewage, and protect the public health by the year 2005.⁵ Phase three requires that additional controls be applied, if necessary, to comply with water quality standards at times of discharge.

Thereafter, Detroit, Wayne and Oakland Counties filed a petition before me, requesting that I take jurisdiction over these permit questions. I ruled that I had pendent jurisdiction over the "time and manner in which the parties deal with wet weather flows governed by permit standards." I appointed Dr. Jonathan W. Bulkley of the University of Michigan as Court Monitor, to attempt to negotiate a settlement of these issues. While administrative hearings proceeded before the Water Resources Commission, Dr. Bulkley involved the contesting parties and the regulatory agencies in negotiations, which resulted in a settlement agreement dated June 28, 1991. The document was informally called the "Bulkley Settlement." In accordance with this settlement, the permits issued on October 19, 1989 were revised, and on August 20, 1992, these revised permits were reissued. If Birmingham does not comply with the terms of the NPDES permits, it will violate state and federal law and be subject to significant penalties.

In 1992 defendants began to pursue federal grants through the Rouge River National Wet Weather Demonstration project, apply for State Revolving Loan Fund low interest loans and gather proposals to build a system to control CSO. On March 1, 1993, Hubbell, Roth & Clark, Inc. Consulting Engineers (HR & C) submitted a draft proposal recommending the Linden Park RTB.

In May of 1993 an Ad Hoc Citizens Committee (Committee) appointed by the Birmingham City Commission began hearings on the Linden Park RTB.⁶ It is not disputed that the Committee met over twenty times in the summer of 1993 to hear comments concerning the Linden Park proposal and other suggestions for rectifying the CSO problem. On July 22, 1993 the Committee heard testimony from individuals who supported the proposal plaintiff now supports. After reviewing the testimony, the Committee considered the environmental and economic impact of all the alternatives. The Committee then recommended the Linden Park RTB plan submitted by HR & C to the Birmingham City...