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BOSCO v. BECK

August 30, 1979

Margaret E. BOSCO, Plaintiff,
v.
Eckardt C. BECK, Region II Administrator, U.S. Environmental Protection Agency, Douglas Costle, Administrator, U.S. Environmental Protection Agency, Jerry F. English, Commissioner, N.J. Department of Environmental Protection, Pequest River Municipal Utilities Authority (Warren County), and Town of Belvidere, Defendants.



The opinion of the court was delivered by: FISHER

Plaintiff Margaret E. Bosco brings this action under the National Environmental Policy Act of 1969 (hereinafter "NEPA"), 42 U.S.C. § 4321 Et seq., seeking injunctive relief restraining the defendants from proceeding with plans to build sewerage collection and treatment facilities in and around Belvidere, New Jersey, until an Environmental Impact Statement (hereinafter "EIS") has been prepared. Plaintiff contends that an EIS is required by NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), because the construction of the sewerage facilities would be a major federal action significantly affecting the quality of the human environment.

I. BACKGROUND

 The Parties : Plaintiff Margaret E. Bosco is a resident of the Town of Belvidere and the owner of property within the area to be served by the proposed sewerage projects. Plaintiff claims a direct and adverse effect upon her personal and property rights as a result of the construction of these projects. Plaintiff's standing to bring this challenge has not been questioned by the defendants.

 The defendant Eckhardt C. Beck is the Regional Administrator of Region II of the Environmental Protection Agency (hereinafter "EPA"). Douglas M. Costle is the National Administrator of EPA. Beck and Costle are collectively referred to as the federal defendants. Jerry F. English is the Commissioner of the New Jersey Department of Environmental Protection (hereinafter "DEP"). The Warren County-Pequest River Municipal Utilities Authority (hereinafter "PRMUA") is the agency responsible for wastewater management in the drainage basin of the Pequest River and its tributaries in Warren County, New Jersey. It is the agency designated to administer the actual planning, design, construction and operation of these projects. The PRMUA was formerly known as the Warren County-Pequest River Sewerage Authority. The final defendant, the Town of Belvidere, is the local municipality which will be served by the sewerage treatment and collection system. Each of the defendants has appeared and retained separate counsel.

 The Proceedings in this Court : August 21, 1979 was the return date of plaintiff's application for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). Also returnable on that date were cross-motions for summary judgment, Fed.R.Civ.P. 56, filed by both the federal defendants and the DEP. In addition, with the consent of all parties, I ordered the trial of this action on the merits advanced and consolidated with the hearing on plaintiff's application for a preliminary injunction. Fed.R.Civ.P. 65(a)(2). This opinion therefore finally resolves this controversy and constitutes my conclusions of law and findings of fact. Fed.R.Civ.P. 52.

 II. THE STATUTORY FRAMEWORK

 The Federal Water Pollution Control Act (hereinafter the "Clean Water Act"), 33 U.S.C. § 1251 Et seq., as amended, established an EPA grant program under which federal funds may be used to finance the construction of publicly owned sewerage treatment facilities. Under that grant program, EPA is authorized to make grants to any state, municipal, intermunicipal or interstate agency for the planning, design and construction of wastewater treatment facilities and wastewater collection systems. Clean Water Act §§ 201(g), 211(a), 33 U.S.C. §§ 1281(g), 1291(a). Up to 75% Of the total eligible costs of an EPA approved project may be funded by the federal government. Clean Water Act § 202, 33 U.S.C. § 1282.

 EPA's decision to fund the proposed construction of sewerage treatment facilities is accomplished in three distinct steps. Each step involves a separate and independent EPA determination as to whether a grant of funds should be made. 40 C.F.R. § 35.903(a) (1978). EPA grants are made in Step 1 for use by the grantee in carrying out feasibility studies and other preliminary planning matters. At this stage primary attention is paid to the selection of the most appropriate form of treatment technology to be employed and to the selection of the best location for the treatment facility. The grantee is also charged with the duty of preliminarily examining the environmental impact of the proposed facilities. The grantee should prepare a facilities plan developed in accordance with 40 C.F.R. § 35.917-1, which is then submitted to EPA for approval.

 If the EPA approves the facilities plan, a Step 2 grant may be awarded to fund the preparation of construction drawings and specifications necessary for the construction of the approved facility. Finally, a Step 3 grant may be awarded to fund the actual construction of the facility in accordance with the design requirements developed under Steps 1 and 2. 40 C.F.R. § 35.930-1(a).

 Grant funds are allocated among the states in accord with a formula specified by Congress. Clean Water Act § 205, 33 U.S.C. § 1285. The state is primarily responsible for determining the amount and timing of federal assistance to each municipality. Generally, no grant assistance may be awarded unless priority for a project has been determined by the state in accordance with a priority system developed by the state and approved by the EPA. 40 C.F.R. § 35.912. DEP is the state agency responsible for performing this function. Although the state plays an important role in determining the priority of wastewater treatment projects and in reviewing project applications, wastewater treatment projects are primarily planned and carried out at the local level.

 
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on
 
(i) the environmental impact of the proposed action,
 
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
 
(iii) alternatives to the proposed action,
 
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
 
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

 42 U.S.C. § 4332(2)(C).

 The result of this requirement is that federal agencies are to examine each action which they propose to take, and, if they determine that the proposed action is a major federal action which will significantly affect the quality of the human environment, prepare an EIS with respect to the proposed action. It is with this requirement that plaintiff contends defendants have not complied.

 The obligation to prepare an EIS is imposed upon all Federal Agencies. Rather than establish a single body with authority to promulgate uniform regulations enforcing this obligation, however, NEPA leaves it to each Federal Agency to formulate its own regulations implementing the Act. The EPA has promulgated such regulations. See 40 C.F.R. § 6.100 Et seq.

 EPA regulations under NEPA contain both general provisions applicable to all EPA actions, See 40 C.F.R. §§ 6.100-6.402, and additional special provisions governing proposed wastewater treatment works construction grants made under the Clean Water Act. 40 C.F.R. §§ 6.500-6.514. Under these regulations an applicant for a wastewater treatment works construction grant is required to submit an environmental assessment to EPA as part of the facilities plan developed under a Step 1 grant. 40 C.F.R. § 6.512(a). The environmental assessment must include a description of the environmental impacts of the proposed action, a description of steps to minimize any adverse environmental effects, an evaluation of alternatives, a description of the existing and future environment without the proposed project, and supporting documentation. Id. The purpose of the environmental assessment is to ensure that the Step 1 grantee considers the environmental impacts of a proposed action at the earliest possible point in the Step 1 grantee's planning process, as well as to assist the EPA in deciding whether an EIS is required. 40 C.F.R. § 6.202. In order ...


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