State of Mich. v. City of Allen Park

• Citation: 501 F. Supp. 1007
• Decision Date: 06 November 1980
• Docket Number: 79-74682.,No. 79-74681,79-74681
• 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, Robert Lindisch and Phil Serpetti, Jr., Plaintiffs, v. The CITY OF ALLEN PARK, Michigan, a Michigan Municipal Corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

501 F. Supp. 1007

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, Robert Lindisch and Phil Serpetti, Jr., Plaintiffs, v. The CITY OF ALLEN PARK, Michigan, a Michigan Municipal Corporation, Defendant.

Nos. 79-74681, 79-74682.

United States District Court, E. D. Michigan, S. D.

November 6, 1980.

Karl Overman, Asst. U. S. Atty., Detroit, Mich., for plaintiff Administrator of United States Environmental Protection Agency.

Thomas Emery, Asst. Atty. Gen., Lansing, Mich., for plaintiff State of Michigan Department of Natural Resources.

Abba I. Friedman, Laurence A. Berg, Hyman, Gurwin, Nachman, Friedman & Winkelman, Southfield, Mich., for plaintiffs Greenfield Construction Company, Inc., Lanzo Construction Company, Inc., Giannetti Construction of Michigan, Inc., Rocco Ferrera & Company, Inc.

Timothy Downs, Craig, Farber & Downs, Detroit, Mich., for plaintiffs Lindisch and Serpetti.

Kenneth D. Kruse, Allen Park, Mich., and Michael H. Feiler, Farmington Hills, Mich., for defendant Allen Park.

Robert P. Tiplady, Plymouth, Mich., for defendants Le Blanc Tile Drainage District, Drainage District for Ecorse Creek Pollution Abatement Drain No. 1, Charles N. Youngblood, Wayne County Drain Commissioner.

Douglas B. Dimitry, Asst. Corp. Counsel, Detroit, Mich., for defendant County of Wayne.

Charles R. Moon, Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., for amicus curiae.

OPINION

FEIKENS, Chief Judge.

Background

This case concerns the water quality of the North Branch of the Ecorse Creek, a creek which begins just north of Detroit Metropolitan Airport, thirteen miles from the mouth. It flows eastward through the communities of Dearborn Heights, Allen Park, Lincoln Park and Ecorse, and merges with the South Branch of Ecorse Creek three-fourths of a mile west of the Detroit River. The point where the Ecorse River empties into the Detroit River is located in Lincoln Park. (P.Ex. 5, 24). The North Branch of the Ecorse Creek is part of "waters of the state", as defined by the legislature, M.C.L. § 323.11(b) (M.S.A. § 3.531(b)), and has been designated for partial body contact uses. (P.Ex. 2, p. 39).

In May, 1969 the Michigan Water Resources Commission ("WRC") initiated a survey of the Ecorse River in conjunction with a plan of implementation to correct existing water quality problems. During wet weather, when flows within the combined sewer system are high, untreated domestic sanitary sewage and stormwater runoff are discharged from nine outlets along the North Branch of the Ecorse Creek and two outlets along the South Branch. (P.Ex. 5, 24). The WRC study showed high total and fecal coliform counts¹ in Ecorse Creek, as well as large concentrations of materials with high biochemical oxygen demand ("BOD") causing an extremely low level of dissolved oxygen² in Ecorse Creek. Algal densities were excessive and the only bottom-dwelling organisms existing were pollution-tolerant sludge worms. (P.Ex. 24). That study confirmed that the discharge of combined sewer overflows into the river was the principal cause of its "severely degraded condition". (P.Ex. 24, p. 1).

In November of 1970 the Michigan Department of Natural Resources ("DNR") ordered the communities within the Ecorse Creek Basin to correct pollutn emptying into Ecorse Creek and the Detroit River. The Wayne County Drain Commissioner, Charles Youngblood, consequently authorized a study of the sewer system to determine solutions for water quality problems of Ecorse Creek. The culmination of this study was the Facility Planning Study: Pollution Abatement of Ecorse Creek, Element 2-Combined Sewer Areas, Final Plan (Wayne County Drain Commissioner, February 1977). (P.Ex. 2). Three alternatives were evaluated on the basis of monetary costs, contribution to water quality goals, public acceptability, environmental impact and implementation capability. (P.Ex. 2, p. 7).

Alternative 1 called for Allen Park, Lincoln Park and Taylor to construct a new system of sewers to separate domestic sanitary sewage from storm runoff. This program would provide for continuous treatment of domestic sanitary sewage at the Wayne County Wyandotte Wastewater Treatment Plant during all flow conditions and the release of only storm surface run-off to Ecorse Creek. (P.Ex. 2, 8, 9 and 25). The end result would be to correct eight of the nine combined sewage overflows into the North Branch of the Ecorse Creek, with the remaining location being corrected independently by the City of Ecorse. (Sprow and Trim testimony, P.Ex. 2, p. 15). Alternative 2 proposed separation of combined sewers in Taylor, diversion of storm runoff from the LeBlanc Drain at an upstream point, and storage and treatment of the remaining combined sewer overflows. Alternative 3 called for no major modification of the sewer system, but addressed the problem by intercepting, storing and treating all the combined sewer overflows. (Trim testimony, P.Ex. 2).

The study recommended selection of Alternative 1 as the most cost-effective plan. Alternative 1 was formally selected for implementation by the North Branch of Ecorse Creek Drain Improvement Board following evaluation of input at a public hearing on January 27, 1977. (P.Ex. 2, p. 79). Alternative 1 received wide public support from citizen groups and endorsement by government agencies, including Allen Park, based on the beneficial environmental effects of the project. These effects include reduced energy use and costs for operation and maintenance of the Wyandotte Treatment Plant, a reduction in local basement flooding as well as risks to public health and safety due to increased sewer system reliability, and improved water quality in the Ecorse Creek, the Detroit River and Lake Erie with the reduction in solids, BOD, and phosphorus loading. (Trim testimony, P.Ex. 2, p. 88). The DNR and the United States Environmental Protection Agency ("EPA") approved Alternative 1. (P.Ex. 1).

Outfall 001 is one of the locations where combined sewer overflows occur and it contributes significantly to the pollution of the North Branch of the Ecorse Creek. A major source of the combined sewer overflow at outfall 001 is the LeBlanc Drain, which serves the LeBlanc Tile Drainage District, comprised of portions of Allen Park, Lincoln Park and Taylor, excluding areas served by the Detroit Water and Sewerage Department in the northern and southern portions of Allen Park. (Sprow testimony, P.Ex. 5(b)). Raw sanitary sewage and stormwater in the LeBlanc Drain, including combined sewage from branch sewer lines (the Moore Arm and Horger Arm), are conveyed through the LeBlanc Drain eastward to the River Drive Interceptor. (P.Ex. 5(b)). Before reaching the interceptor, the LeBlanc Drain flows into a junction chamber near the intersection of Capitol Avenue and River Drive in the City of Lincoln Park. During periods of dry weather the combined sewage flows by gravity from the junction chamber into a regulator device from which it is conveyed to the Wayne County Wyandotte Treatment Plant via the River Drive Interceptor. However, the River Drive Interceptor has insufficient capacity to convey high wet weather flows from the Ecorse Creek drainage basin to the Wyandotte Treaent Plant. During wet weather, when the water level in the LeBlanc Drain exceeds the water level in the North Branch of the Ecorse Creek, two flap gates in the junction chamber will open and allow flows from the LeBlanc Drain to enter two enclosed pipes which convey combined sewage into the North Branch of the Ecorse Creek from outfall 001. (Sprow and Trim testimony, P.Ex. 7).

On June 14, 1977 the City of Allen Park Council passed a resolution approving the financing of drain improvements and authorizing a petition to the Wayne County Drain Commissioner requesting drainage improvements pursuant to Chapter 20 of the Drain Code of 1956, as amended, M.C.L. § 280.461 et seq. (M.S.A. § 11.1461 et seq.). (D.Ex. 46). Upon evaluation of a petition submitted by the Cities of Allen Park, Dearborn Heights, Lincoln Park and Taylor, County of Wayne and State of Michigan, and following statutory notice and public hearing, M.C.L. § 280.467 (M.S.A. § 11.1467), a Final Order of Determination was entered on October 19, 1977, determining that the petition for a drainage project (designated the Ecorse Creek Pollution Abatement Drain No. 1) was sufficient and that the project was necessary for the public health and should be constructed. (D.Ex. 45).

On January 20, 1978 the DNR Water Quality Division issued NPDES permit No. MI-0026204 to the LeBlanc Tile Drainage District (replacing a prior permit issued on November 29, 1974) setting forth conditions for discharge from the LeBlanc Drain. (Sprow and Zugger testimony, P.Ex. 1).³ The permit authorizes discharge from LeBlanc Drain until March 31, 1982, provided that the combined sewer overflows will be controlled by that time and that the LeBlanc Tile Drainage District complete construction of the sewer separation plan called for in the Element 2, Final Plan. (P.Ex. 1). In the interim period, the Wayne County Drain Commissioner, acting for and on behalf of the LeBlanc Tile Drainage District, is required to utilize to the maximum extent the available receiving sewerage system transportation capabilities for the delivery of combined sewage to the River Drive Interceptor and the Wayne County Wyandotte Wastewater Treatment facilities. (P.Ex. 1).

The EPA and DNR tendered Step III grants for federal and state financial assistance to implement the necessary...