U.S. v. Michigan, Civ.A. 77-71100.

• Decision Date: 22 November 2000
• Docket Number: No. Civ.A. 77-71100.,Civ.A. 77-71100.
• Citation: 122 F.Supp.2d 785
• Parties: UNITED STATES of America, Plaintiff and Counter-Defendant, and Wayne County Department of Health, Air Pollution Control Division, Plaintiff, v. State of MICHIGAN, Defendant, Counter-Plaintiff and Cross-Plaintiff, v. City of Detroit, a municipal corporation, and Detroit Water and Sewerage Department, Defendants and Cross-Defendants, v. All Communities and Agencies Under Contract with the City of Detroit for Sewage Treatment Services, v. Food and Allied Industries Committee of Metropolitan Detroit, a voluntary non-profit, unincorporated association, and Its Members, v. Greater Detroit Chamber of Commerce, a Michigan non-profit corporation, and Its Members, Intervening Rate Challengers.
• Court: U.S. District Court — Eastern District of Michigan

Page 785

122 F.Supp.2d 785

UNITED STATES of America, Plaintiff and Counter-Defendant, and Wayne County Department of Health, Air Pollution Control Division, Plaintiff, v. State of MICHIGAN, Defendant, Counter-Plaintiff and Cross-Plaintiff, v. City of Detroit, a municipal corporation, and Detroit Water and Sewerage Department, Defendants and Cross-Defendants, v. All Communities and Agencies Under Contract with the City of Detroit for Sewage Treatment Services, v. Food and Allied Industries Committee of Metropolitan Detroit, a voluntary non-profit, unincorporated association, and Its Members, v. Greater Detroit Chamber of Commerce, a Michigan non-profit corporation, and Its Members, Intervening Rate Challengers.

No. Civ.A. 77-71100.

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

November 22, 2000.

Thomas A. Mariani, Jr., Barbara A. Rogers, Department of Justice Environment & Natural Resources Division, Washington, DC, L. Michael Wicks, United States Attorney's Office, Detroit, MI, Beth S. Gotthelf, Seyburn, Kahn, Southfield, MI, Dennis J. Donohue, Warner, Norcross, Grand Rapids, MI, for Plaintiffs.

Darryl F. Alexander, Robert C. Walter, Detroit, MI, John C. Scherbarth, Michigan Department of Attorney General, Natural Resources Division, Lansing, MI, Todd B. Adams, Michigan Department of Attorney General, Environmental Protection Division, Lansing, MI, William W. Misterovich, Mount Clemens, MI, James E. Tamm, O'Connor, DeGrazia, Bloomfield Hills, MI, Leonard A. Krzyzaniak, Vandeveer Garzia, Detroit, MI, Timothy L. Cronin, Hemming, Polaczyk, Inkster, MI, William K. Fahey, Foster, Swift, Lansing, MI, Sarah K. Osburn, Plunkett & Cooney, Detroit, MI, Charles E. Lowe, Lowe, Lewandowski, Plymouth, MI, John M. Donohue, Secrest, Wardle, Farmington Hills, MI, John H. Fildew, Charles S. Kennedy, III, Fildew, Hinks, Detroit, MI, Steven D. Liddle, Macuga, Swartz, Detroit, MI, Peter W. Macuga, II, Macuga, Swartz, Detroit, MI, Marta E. Ross, Tannian & Assoc., Detroit, MI, Laura B. Harris, Salamey Assoc., Dearborn, MI, Kurt L. Heise, Dearborn Heights, MI, Stuart Trager, Salamey Assoc., Dearborn, MI, Barry A. Seifman, Farmington Hills, MI, for Defendants.

OPINION AND ORDER

FEIKENS, District Judge.

I. BACKGROUND

On October 13, 2000, I ordered the United States Department of Army Corps of Engineers ("ACE") to show cause why it should not be required to accept dredged materials from Conner Creek, Michigan (a creek which flows into the Detroit River and which is located within the City of Detroit) at the Corps' Pointe Mouillee Confined Disposal Facility.

The case in which this Order issued commenced in 1977, when the Environmental Protection Agency of the United States ("EPA") brought suit against the State of Michigan; the Detroit Water and Sewerage Department ("DWSD"), an agency of the City of Detroit; and all communities and agencies under contract with DWSD for sewage treatment services. It arose because of violations of the Clean Water Act, 33 U.S.C. § 1251 et seq., at the DWSD Treatment Plant. To correct these violations, in September 1977, a Consent Judgment was filed by the parties and approved by me. Duties and obligations between them were accordingly governed by that Consent Judgment.

Earlier, and of direct significance to this case, an Agreement was entered into on May 10, 1974 by the United States and the State of Michigan, acting through the Michigan Department of Natural Resources (now known as the Michigan Department of Environmental Quality), for construction of a contained disposal facility at Pointe Mouillee, Lake Erie. That Agreement, which applies to the relationships of the parties in this case, contains several preambles; to wit:

WHEREAS, Section 123 of the River and Harbor Act of 1970 (Public Law 91-611, approved 31 December 1970) authorized the construction, operation, and maintenance of contained spoil disposal facilities of sufficient capacity to contain the deposits of dredged materials for a period not to exceed 10 years, and

WHEREAS, maintenance and improvement of the Detroit and Rouge Rivers' channels are within the scope of the authorization contained in said Public Law 91-611; and

WHEREAS, the said Public Law 91-611 provides that the Secretary of the Army shall obtain the concurrence of appropriate local governments and shall consider the views and recommendations of the Administrator of the Environmental Protection Agency and shall comply with the requirements of Section 21 of the Federal Water Pollution Control Act, and of the National Environmental Policy Act of 1969, and

WHEREAS, subsection (e) of Section 123 of Public Law 91-611 provides that all costs of disposal of dredged spoil from the project for the Great Lakes Connecting Channels, Michigan, shall be borne by the Government; and

. . . . .

WHEREAS, the State is desirous of assuming the Public Law 91-611 responsibility pertaining to the project proposed herein;....

Following these recitals, the parties agreed, inter alia, that:

1. [I]n consideration of the Government, at the earliest permissible date, commencing construction of a Contained Spoil Disposal Facility at Pointe Mouillee, Lake Erie, adjacent to the State's Pointe Mouillee game area, for the containment and retention of dredged materials from the channels of the Detroit and Rouge Rivers, substantially in accordance with Public Law 91-611, approved 31 December 1970, it [the State] will fulfill the following, to wit:

. . . . .

b. Hold and save the Government free from damages due to construction, operation, and maintenance of the facility.

Much later, in August of 1997, DWSD reported certain violations of its National Pollutant Discharge Elimination System ("NPDES") permit to the Michigan Department of Environmental Quality ("MDEQ"), which resulted in the issuance of a Notice of Violations by MDEQ to DWSD. Following extensive negotiations, MDEQ, DWSD, and other parties to the original Consent Judgment then entered into a Second Amended Consent Judgment, which was approved by me on August 3, 2000. Under the terms of the Second Amended Consent Judgment, at Sec. IV. Supplemental Environmental Projects (A), among other things:

DWSD agrees to undertake a Supplemental Environmental Project (SEP) consisting of the dredging and disposal of approximately 146,000 cubic yards of sediment from Conner Creek. DWSD submitted a work plan and schedule to MDEQ on September 1, 1999. DWSD shall submit additional information to supplement the work plan and address questions and concerns from the U.S. Army Corps of Engineers and the MDEQ Land and Water Management Division so that permits for the project can be issued.... The project shall include a sampling and analysis component to determine whether Conner Creek is adversely impacted by accumulation of sediment between completion of the dredging activity and the point when the new Conner Creek CSO basis is complete and operational. The project shall also identify what actions, if any, need to be taken to remove unacceptable sediment accumulations that may develop. Disposal of the dredged material shall be in accordance with state and federal requirements. The dredging process shall be completed as soon as possible, but in no event after the completion of construction of the Conner Creek CSO basin.

Since construction of a required Combined Sewer Overflow Retention Basin ("CSO Retention Basin") is environmentally related to the dredging of Conner Creek, prior to May, 1999, DWSD developed a draft project plan for that basin. Due to the significant cost of the CSO Retention Basin Project ("Project"), a cost currently estimated to be $165,653,319.00, state funding for the Basin is critical to the construction of the Project.

An informational meeting held on June 2, 1999, to inform local residents of the details of the Project and to obtain public input, focused on the possible impact caused by the proposal to dewater excavating materials from Conner Creek on-site prior to disposal in a landfill. It became clear that dewatering the dredged materials on-site would be a formidable obstacle and, thus, both MDEQ and DWSD concluded that dewatering on-site would pose unacceptable impacts on surrounding landowners and uses.

Petitioning parties have informed me that in order to ensure State Revolving Fund ("SRF") funding, to commence construction of the CSO Retention Basin by January 1, 2001, the matter of the location of the dredged materials from Conner Creek must be decided now. DWSD contends that if SRF funding is not obtained, it would cost DWSD ratepayers an estimated $40 million in additional interest charges.

Lengthy negotiations have ensued between MDEQ, DWSD and the Army Corps of Engineers regarding the placement of the materials to be dredged from Conner Creek. It appears that the parties have been unable to resolve their differences, and this difficulty has led to the filing of a joint motion by DWSD and MDEQ, stemming from the Order To Show Cause. That motion states:

In order to comply with the above-referenced requirements of the Court's February 7, 2000 Order [appointing Mayor Dennis W. Archer of the City of Detroit as Special Administrator], the Second Amended Consent Judgment, and DWSD's NPDES permit, DWSD needs to obtain, without further delay, the approval of the Department of Army Corps of Engineers ("ACE") to dispose of excavated materials from Conner Creek at the Pointe Mouillee Confined Disposal Facility ("CDF"). The CDF is owned by the State of Michigan and operated by the ACE, pursuant to a Memorandum of Agreement between the Department of the Army and the State of Michigan, dated May 10, 1974

. . . . .

Disposal of the excavated material requires approval of the ACE. Any other disposal alternative would substantially delay (if not entirely preclude) the dredging of Conner Creek and the construction of the Conner Creek CSO retention basin, causing DWSD to violate its NPDES permit and this Court's...