State of Mich. v. City of Allen Park, Civ. A. No. 79-74681
| Decision Date | 02 November 1983 |
| Docket Number | Civ. A. No. 79-74681,79-74682 and 83-CV-2732-DT. |
| Citation | 573 F. Supp. 1481 |
| Parties | STATE OF MICHIGAN, the Administrator of The United States Environmental Protection Agency, Greenfield Construction Company, Inc., Lanzo Construction Company, Inc., Giannetti Construction of Michigan, Inc. and Rocco Ferrera & Company, Inc., Plaintiffs, v. The CITY OF ALLEN PARK: The Le Blanc Tile Drainage District: the Drainage District For Ecorse Creek Pollution Abatement Drain No. 1: the County of Wayne: Charles N. Youngblood, the Wayne County Drain Commissioner, Defendants. STATE OF MICHIGAN and Robert Landisch, Plaintiffs, v. The CITY OF ALLEN PARK, Michigan, a Michigan municipal corporation, Defendant. ALLEN PARK HOMEOWNERS OF LE BLANC DRAIN DISTRICT, INC., a Michigan Non-Profit Corporation, Plaintiff, v. William RUCKELSHAUS, Administrator of United States Environmental Protection Agency and the United States Environmental Protection Agency, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Stephen F. Schuesler, Asst. Atty. Gen., Environmental Protection Div., Lansing, Mich., for State of Mich.
Karl R. Overman, Asst. U.S. Atty., Detroit, Mich., for U.S.E.P.A.
Abba I. Friedman, Laurence A. Berg, Hyman, Gurwin, Nachman, Friedman & Winkelman, Southfield, Mich., for Const. Companies.
Michael H. Feiler, Farmington Hills, Mich., for City of Allen Park.
Jeffrey A. Supowit, Detroit, Mich., for Wayne County Drain Com'r.
Harry S. Ellman, Southfield, Mich., for Allen Park Homeowners of Le Blanc Drain Dist., Inc.
Charles R. Moon, Detroit, Mich., Bond Counsel.
OPINION
This matter arises out of a long standing dispute concerning the water quality of the North Branch of the Ecorse Creek. A final order and judgment in this matter was entered on June 30, 1980. That judgment required, inter alia, that defendant Allen Park take certain measures to alleviate water pollution. Allen Park here moves to have that order modified pursuant to Fed. R.Civ.P. 60(b)(5). Jurisdiction is conferred pursuant to Section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), and 28 U.S.C. § 1331.
I. BACKGROUND
Although the procedural and substantive history of this case was set out in detail in prior opinion, State of Michigan v. Allen Park, 501 F.Supp. 1007 (E.D.Mi.1980), a brief review is again appropriate. This matter involves problems of water quality in the North Branch of the Ecorse Creek, which flows through the communities of Dearborn Heights, Allen Park, Lincoln Park, and Ecorse. The poor water quality in Ecorse Creek is caused by combined sewer overflows which periodically dump untreated sewage into the basin. Such discharge occurs during periods of relatively heavy rain or snow melt which overtax the combined storm water and sewer system and cause the mixture of storm water runoff and raw sewage to be discharged through various outfalls directly into the Creek.
The water quality problems of the Ecorse Creek have long been recognized. A study by the Michigan Department of Natural Resources (DNR) concluded as early as 1969 that the combined sewage discharge of Allen Park and other communities was degrading the water quality of the Ecorse Creek and causing "conditions believed to be a hazard to public health, which result in a public nuisance and which cause destruction of fish life." Ecorse River Water Quality Study, State of Michigan Water Resource Commission, Department of Natural Resources, August 1969. In November of 1970, the DNR ordered the communities within the Ecorse Creek Basin to correct the problem, and the Wayne County Drain Commissioner authorized a study of the sewer system to determine possible solutions. This study culminated in the report, Facility Planning Study: Pollution Abatement of Ecorse Creek, Element 2-Combined Sewer Areas, Final Plan (Wayne County Drain Commissioner, February 1977). In that report three alternatives were evaluated on the basis of cost, pollution abatement, public acceptability, environmental impacts and implementation capability. The study concluded that Alternative I, sewer separation, was the most cost effective plan. That alternative required Allen Park and several other communities to construct parallel sewer systems so that storm water runoff could be kept separate from sewage. After such separation, if wet weather caused an overflow, only storm runoff, and not raw sewage, would be discharged into Ecorse Creek.
Alternative I was selected by the North Branch of Ecorse Creek Drain Improvement Board following a public hearing held on the matter on January 27, 1977. This alternative received wide public support from various cities and agencies, including Allen Park. On June 14, 1977, Allen Park passed a resolution approving the financing of the drainage improvements, and the project seemed to be well on its way.
In early 1978 the Drainage District Board for the Ecorse Creek Pollution Abatement Drain No. 1 proposed an apportionment of costs which was subsequently confirmed in April 1978. After this apportionment and the taking of bids on the project, it became clear to Allen Park that, despite an 80% funding of the project by federal and state grants, Allen Park would have to pay out significant outlays to fund the project. Shortly thereafter, Allen Park began to fall behind the required completion schedule for the project. On November 28, 1978, the DNR issued notices of violation to Allen Park for reason of noncompliance with schedule.
On December 12, 1979, a suit was filed against Allen Park seeking to require the city to proceed with the project in accordance with schedule. Allen Park defended in this action by claiming that it was not contributing to the pollution in Ecorse Creek, that the decision to approve Alternative I was arbitrary and capricious, and that the city was precluded from financing the project by the then recently enacted Headlee Amendment to Article IX of the Michigan Constitution. Allen Park also counterclaimed contending that the Environmental Protection Agency (EPA) failed to comply with the requirements of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. § 4321 et seq., with regard to the preparation of an Environmental Impact Statement, and that the alternative ultimately selected was not the best alternative. After a prolonged trial on the matter, I entered a final order and judgment in the cause on June 30, 1980, finding against Allen Park in each of the particulars, requiring Allen Park to proceed with the funding and construction of the project, and retaining jurisdiction for the purpose of implementing the order. An opinion was issued on November 6, 1980, setting forth the reasons behind that judgment. Defendant Allen Park appealed that judgment to the U.S. Court of Appeals for the Sixth Circuit, which affirmed the decision,1 and to the U.S. Supreme Court, which denied certiorari.2
In 1981 litigation erupted again when Allen Park filed a complaint for superintending control in Wayne County Circuit Court (Civil Action No. 81-100961-AS), seeking certiorari on an apportionment determination. Following removal and a hearing before this Court, I held that the apportionment of costs for the project was proper. Allen Park v. Ecorse Pollution Abatement Drain No. 2 Drainage District, 518 F.Supp. 1079 (E.D.Mi.1981). Allen Park again appealed this decision to the Court of Appeals, which affirmed,3 and to the U.S. Supreme Court, which denied certiorari.4
Even after this, Allen Park delayed proceeding with the project. Because of this delay, and in response to a motion to set compliance schedule filed by plaintiff contractors in this action, on February 15, 1983, I entered a schedule of compliance which set forth in minute detail the steps which Allen Park was to take in proceeding with the project.
Subsequent to the entry of the compliance schedule of February 15, Allen Park again began pressing its contention that the sewer separation alternative was not the best alternative for alleviating the pollution of Ecorse Creek. Subsequent to this Court's Judgment of June 1980, Allen Park retained an engineering firm, Williams & Works, for the purpose of conducting further studies on the various alternatives. In October of 1982, that firm issued a report entitled Combined Sewer Overflow Pollution Control Alternatives for the City of Allen Park. The report concluded, inter alia, that there were a number of alternatives which did not require sewer separation and which would be more cost effective than the previously mandated Alternative
I. Allen Park disseminated the report to a number of individuals and agencies, including the EPA.
On March 18, 1983, the EPA petitioned this Court for an opportunity to review the Williams and Works Report. At the conclusion of a hearing held on that matter, I allowed the EPA to consider such report with the caveat that any alternative considered must lead to at least equal pollution abatement, be less costly, and be able to be implemented within the same time frame as the presently selected alternative. On April 27, 1983, I issued an order reinstating this case for purposes of further proceedings and consideration, and on May 10, 1983 held a conference at which the EPA presented its opinions on the various alternatives, along with a study entitled Technical Evaluation, Impact of Combined Sewer Overflow Control Alternatives for the Ecorse Creek Basin, Wayne County, Michigan (May 1983). The EPA stated its belief that there were two alternatives which might be more cost effective than the chosen alternative, but also stated that it was not abandoning its position with regard to the original alternative. The EPA also made clear its position that, although the two suggested alternative plans may be preferable, the EPA could not guarantee funding for them. At the conclusion of that conference I stated on the record that no reason was demonstrated for abandoning the original...
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