Sun Enterprises, Ltd. v. Train
| Decision Date | 12 March 1976 |
| Docket Number | Nos. 490,D,647,s. 490 |
| Citation | 532 F.2d 280 |
| Parties | , 6 Envtl. L. Rep. 20,331 SUN ENTERPRISES, LTD., et al., Plaintiffs-Appellants, v. Russell E. TRAIN, as Administrator of the U. S. Environmental Protection Agency ("EPA"), et al., Defendants-Appellees, and Heritage Hills of Westchester, et al., Defendants-Intervenors. SUN ENTERPRISES, LTD., et al., Petitioners, v. ADMINISTRATOR OF the U. S. ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Respondent, and Heritage Hills of Westchester, et al., Intervenors. ockets 75-6068, 75-4164. |
| Court | U.S. Court of Appeals — Second Circuit |
Nicholas A. Robinson, New York City (Marshall, Bratter, Greene, Allison & Tucker, New York City, of counsel), for appellants-petitioners.
William Roche Bronner, Asst. U. S. Atty., New York City (Thomas J. Cahill, U. S. Atty., S. D. N. Y., Steven J. Glassman, Asst. U. S. Atty., Richard G. Tisch, Atty., Region II, EPA, New York City, of counsel), for appellees and respondent.
Arthur S. Olick, Anderson, Russel, Kill & Olick, P. C., New York City (Davis M. Zimmerman, Jerold Oshinsky, Tarrytown, N. Y., Jane S. Solomon, New York City, Blasi & Zimmerman, Tarrytown, N. Y., of counsel), for intervenors.
Laurance Rockefeller, Ross Sandler, Natural Resources Defense Council, Inc., New York City, as amicus curiae.
Before LUMBARD, SMITH and MANSFIELD, Circuit Judges.
This is a consolidated original petition for review and an appeal, the petition challenging the issuance of a National Pollutant Discharge Elimination System (NPDES) permit by the Environmental Protection Agency (EPA), and the appeal questioning the dismissal on jurisdictional grounds by Judge Dudley B. Bonsal of a similar challenge initiated in the District Court for the Southern District of New York. 394 F.Supp. 211 (S.D.N.Y.1975). The disputed action is the issuance of an NPDES permit to the intervenors by the Administrator of EPA pursuant to § 402 of the Federal Water Pollution Control Act Amendments of 1972 ("Water Act"), 33 U.S.C. § 1342. The permit authorizes sewage disposal into Brown Brook in the Town of Somers in Westchester County, New York. For reasons given below we affirm the district court's dismissal on jurisdictional grounds and deny the petition for review as untimely.
The appellants-petitioners, who were plaintiffs below, are: Sun Enterprises, Ltd. (Sun), a corporation which owns over 500 acres of land downstream of the discharge point in the Town of Somers, Westchester County; Southern New York Fish and Game Association, Inc., a non-profit fishing and hunting society in the area; Lyman E. Kipp, the president of Sun who lives on the Sun property; Richard E. Homan, a tenant of Sun and an officer of Southern New York Fish and Game Association; No Bottom Marsh, the marsh through which the brook which receives the discharge flows; and Brown Brook, which is classified by New York State as a trout stream on Sun's property. The appellees, defendants below are: Russell E. Train, Administrator of EPA, also the respondent in this proceeding; Gerald Hansler, Regional Administrator of EPA for Region II (which includes New York); and Rogers Morton, former Secretary of the Department of the Interior (Interior). The intervenors, defendants below, are Heritage Hills of Westchester (HHW), a partnership, its principals and related corporations all of whom are engaged in the construction of a condominium housing project, in Somers, which will consist of 3,100 units and extensive recreational facilities upstream of the Sun property.
The facts which gave rise to this litigation are as follows. On July 12, 1973 HHW applied to the New York State Department of Environmental Conservation (DEC) for permission to relocate approximately 650 feet of Brown Brook in order to construct a sewage treatment plant for the housing project. By the terms of its zoning special exception permit, HHW was obliged to provide its own sewage system. At the relocation hearings appellant Kipp presented expert testimony on what he contended would be the adverse effects of sewage discharge at the proposed site on the brook, the marsh, and on an aquifer (an underground drinking water supply) located on Sun's property. Nevertheless, on January 17, 1974, the application for stream relocation was approved by the Commissioner of DEC.
In December, 1973, HHW applied to the EPA for a NPDES permit (33 U.S.C. § 1251 et seq.). Pursuant to § 401 of the Water Act (33 U.S.C. § 1341), EPA referred the application and a proposed permit to the DEC for certification that the proposed permit would comply with the applicable sections of the Water Act. On April 30, 1974 the EPA published notice of its intent to issue the NPDES permit in the Peekskill Star, a newspaper of apparently general but limited circulation in the affected area. The notice stated that EPA would receive written comments from interested persons, but would hold no hearings unless a hearing were requested. The DEC also published notice of the application in the Reporter Dispatch, a newspaper of greater circulation in the area.
In May, 1974 Kipp wrote to both the DEC 1 and EPA warning of the adverse consequences to the marsh and aquifer if the permit were granted. In his letter to the EPA Kipp did not request a hearing; however he did ask for acknowledgment of his letter and a statement by EPA of its proposed actions to prevent the "destruction" feared by Kipp. EPA, apparently viewing the letter as a written comment in response to its public notice, did not respond to the letter. However, an interoffice memo indicates that the EPA did consider the May, 1974 letters addressed to both it and the DEC. According to that memo, a review of the findings of the DEC after the brook relocation hearings satisfied the EPA that Kipp's position had been considered and raised no impediment to the issuance of a permit.
During this period in the spring of 1974 EPA sent a copy of the proposed permit to the appropriate office of Interior in accordance with EPA's duty to consult with Interior under the Fish and Wildlife Coordination Act (hereinafter "Coordination Act"), 16 U.S.C. § 661 et seq. 2 Interior responded with a letter listing over 80 NPDES applications, including intervenor's, as to which it contemplated "no action" due to a "lack of personnel."
After receiving DEC certification of the appropriate discharge limits, the EPA issued an NPDES permit to HHW on July 12, 1974. The permit contains limits on the biochemical oxygen demand, suspended solids, fecal coliform, and pH. Certain state restrictions which are more stringent than the federal requirements are included in the permit. Moreover, the chlorination necessary to achieve the required fecal coliform level is to be controlled by a chlorine limitation for the effluent. Limits on oxygenation, ammonia, phosphorus and settleable solids are all provided for in the permit. Self-monitoring, record keeping, reporting conditions, and structural fail-safe device requirements are also included in the permit. No examination of the adequacy of these various terms is called for here since we have determined that the merits of appellants-petitioners' challenge to the permit are not properly presented by this proceeding.
DEC wrote to Kipp both before and after the permit was issued to say that it would not accede to Kipp's request that it hear further testimony by his experts. 3 In August 1974, apparently unaware that the permit had been issued, Kipp commenced a mandamus proceeding in state court to compel the DEC to hear additional expert testimony before certifying any limits to EPA. The litigation was discontinued that same month when Kipp was informed that the permit had already been issued. The DEC, by letter dated September 3, 1974, formally advised Kipp that the permit had been issued.
On January 8, 1975 appellants filed an action in the District Court for the Southern District which, in pertinent part, 4 charged the federal defendants with numerous due process violations in the issuance of the permit. The basic allegations in the complaint against EPA are that it failed to implement its own regulations on the preservation of wetlands (38 Fed.Reg. 10834), failed to give the public notice of and the opportunity to comment on or request a hearing on the proposed permit, violated the standard set out in § 302 of the Water Act (33 U.S.C. § 1312), and deprived appellants of property without just compensation. Both EPA and Interior were also charged with failing to consult under the Coordination Act.
On May 9, 1975 Judge Bonsal dismissed the complaint as to the federal defendants. He held that those claims asserted solely against the Administrator of the EPA challenged the Administrator's actions in issuing the permit and are only reviewable in the court of appeals pursuant to § 509(b)(1) of the Water Act, 33 U.S.C. § 1369(b)(1). 5 As to the alleged failure of EPA and Interior to consult, the district court denied appellants' motion for summary judgment, but granted summary judgment on its own motion to appellees EPA and Interior dismissing the Coordination Act claim. Pursuant to Rule 54(b), Fed.R.Civ.P., the district court entered a final judgment of dismissal on July 24, 1975.
The appeal from this judgment has been consolidated, as noted above, with a § 509(b)(1) petition for review of the permit's issuance which was filed in this court on July 31, 1975. A motion to dismiss the petition as untimely was denied without prejudice to its renewal.
Intervenors challenge the entry of final judgment by the district court pursuant to Rule 54(b), Fed.R.Civ.P. They argue that the appeal should be dismissed as interlocutory since the grant of final judgment involved no exercise of discretion by the district court. See Schwartz v. General Transatlantique, 405 F.2d 270 (2d Cir. 1968). In the alternative they urge affirmance of the district court and...
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