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November 27, 1979

Douglas M. COSTLE, Administrator of the United States Environmental Protection Agency, et al., Defendants

The opinion of the court was delivered by: STERN

Plaintiff filed this action on May 31, 1978, seeking a declaration that the action of the federal defendants in granting funds to the RVRSA was illegal, and sought to enjoin RVRSA from further proceeding with the design or construction of its wastewater treatment plant. On April 12, 1979, plaintiff moved for a preliminary injunction. This motion was adjourned for several months, and in the interim plaintiff applied for a temporary restraining order, which was denied. Plaintiff's motion for a preliminary injunction, or alternatively, for summary judgment, was heard on September 10, 1979, along with defendants' motions for summary judgment.

 The Court holds that the awarding of funds by the EPA to the RVRSA and the EPA's decision not to prepare an EIS with respect to phases 1 and 2 of the RVRSA project was neither arbitrary and capricious nor unreasonable. Accordingly, plaintiff's motions are denied and summary judgment will be entered in favor of all defendants.

 I. Background

 Parsippany-Troy Hills is located in Morris County, New Jersey. It covers over 25 square miles and its population exceeds 55,000. Fahy Aff. P 3. Within its borders is the Boonton Reservoir, which divides the Rockaway River into the "Upper Rockaway" and "Lower Rockaway." The Rockaway Valley Regional Sewerage Authority currently operates a sewage treatment plant located just below the Boonton Reservoir, which treats sanitary wastes generated in the Upper Rockaway Basin. EAC Report at 1. These sanitary wastes treated at the plant come from the more densely populated communities of Boonton, Boonton Township, Victory Gardens, Dover, Wharton, Denville, Rockaway Borough, Rockaway Township, and a small section of Randolph Township. Id.

 The history of the Rockaway River is a sad one. The terrain of the Rockaway Valley is poorly suited for septic tanks, and those that existed often overflowed, spilling raw sewage onto the streets and into the streams. As one resident of Par-Troy testified at a public hearing conducted by New Jersey's Department of Environmental Protection on April 25, 1977:

(B)ack in 1968, 1969 and 1970 ... (i)t was deemed an open sewer. Governor Hughes, in fact, was invited to lunch on the banks of the Rockaway River. He visited the area and turned up his nose and went back to the State Capitol....
(B)ack in those years of 1968 through 1970, I can testify with my hand up to God that there was human waste, in its rawest form, coming down that river....

 Attachment to Latzer Aff., dated April 2, 1979. Another Par-Troy resident avers that:

Lake Hiawatha was developed as a summer community in the early 1930's and was noted for its recreational facilities.... The Rockaway River and the lake were used for fishing, boating and swimming.... By the late 1960's the poor quality of the Rockaway River and the low stream flow had destroyed the river and lake for recreational purposes....

 Schimmel Aff., PP 3, 4.

 In 1971, the Rockaway Valley Regional Sewerage Authority was formed, Adm.Rec. C, in order to relieve Jersey City of its obligation to provide low cost sewerage treatment to municipalities in Rockaway Valley. RVRSA thereby assumed Jersey City's court-ordered obligation to construct a new treatment plant. RVRSA took immediate steps to plan the new facility. It hired an engineer, E. T. Killam, Associates, (Killam), and an environmental consultant, Environmental Assessment Council, Inc. (EAC), to make extensive studies of a number of alternatives. In addition, the EPA conducted its own studies in conjunction with the Morris County Planning Board and the Tri-State Regional Planning Commission. Adm.Rec. HH. Numerous hearings were held. Par-Troy was given prior notice of all such hearings and, for the most part, was represented at them.

 Ultimately it was determined that the project would be three-phased. Phase 1 would involve the construction of a new, 13.7 mile interceptor which would allow hook-up by municipalities to be served by the plant. This phase is now largely complete. Phase 2 would involve the upgrading of the existing RVRSA plant from a capacity of 7 million gallons of water per day (mgd) to a capacity of 12 mgd. Phase 3 would involve the construction of a new treatment plant, also to be located at the base of the Boonton Reservoir, with a capacity of 21 mgd.

 The EPA has issued Negative Declarations on phases 1 and 2 of the project, thereby indicating that in its view, those two phases of the project will have no substantial impact upon the environment, and that it does not believe that an Environmental Impact Statement (EIS) is necessary. The Negative Declaration on phase 1 was issued on April 23, 1976; that on phase 2 was issued on March 21, 1978. Both of these documents indicate that an EIS will be prepared on phase 3 of the project, the 21 mgd plant.

 Phases 2 and 3 are currently under advanced water treatment (AWT) review. Under Program Requirements Memorandum 79-7 (PRM 79-7), issued by the EPA on March 9, 1979, all AWT projects which have not yet received construction funding must be reevaluated with respect to cost-effectiveness. If the EPA finds that such a project is not energy and/or cost efficient, the project may not be funded.

 Plaintiff contends that the EPA has violated the provisions of the National Environmental Protection Act (NEPA), 42 U.S.C. §§ 4321 et seq., (1) by not filing an EIS with respect to phase 1, the interceptor, and phase 2, the 12 mgd plant, and (2) by not consulting other interested federal and state agencies before making its EIS decision. Plaintiff also alleges violations of certain provisions of the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1251 et seq.; the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 et seq.; the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.; the Historic Sites Act, 16 U.S.C. §§ 461 et seq.; and the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. Plaintiff is seeking a declaration that the EPA's action was illegal, and also seeks to enjoin all defendants from continuing work on this project.

 II. Preliminary Issues

 A. Ripeness

 Defendants argue that this case is not ripe for review because phases 2 and 3 of the project are presently being reevaluated by the EPA pursuant to its AWT review. The results of that review, they point out, could run the gamut from a total denial of funds to funding as now submitted. It is also possible that changes in the design will be necessary.

 It is true that if the EPA decides not to fund phases 2 and 3, this controversy will be moot. We must look, however, at the nature of this action and the law which is invoked. This is not an action under the Administrative Procedure Act in which we are limited to review of "final agency action." NEPA is, by its own terms, addressed to agency action which is non-final. The statute imposes an obligation to prepare an EIS "in every recommendation or report on proposals for legislation and other Federal actions...." 42 U.S.C. § 4332(C). The action which is reviewable here is not whether in fact phases 2 and 3 should be funded, but whether the decision not to prepare an EIS was in violation of NEPA. The EPA's action is final with respect to that decision. *fn2"

 The Supreme Court's decision in Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 95 S. Ct. 2336, 45 L. Ed. 2d 191 (1975), supports this result. SCRAP brought suit claiming that the ICC's approval of railroad rate increases was unlawful because the prepared EIS was inadequate. The railroads argued that the ICC's action was not ripe for review because ICC procedures permitted further attack upon the rate increases. The Supreme Court held that the linchpin of judicial review is not the finality of the rate increase, but the finality of the EIS decision:

When the ICC terminated the general revenue proceeding, the one thing which it must certainly have finally decided was that it need give no further consideration to environmental factors in that proceeding ... Whatever issues would remain open at a § 13 proceeding, one which would not remain open-no matter who filed the complaint-is whether or not sufficient consideration had been given to environmental factors at the general revenue proceeding ... The interim nature of a general revenue proceeding may be relevant to the question of the extent of the consideration of environmental factors required, but its nature does not prevent review of the question, finally decided by the ICC, whether the environmental impact statement prepared for that proceeding is adequate ... When agency or departmental consideration of environmental factors in connection with that "federal action" is complete, notions of finality and exhaustion do not stand in the way of judicial review of the adequacy of such consideration, even though other aspects of the rate increase are not ripe for review.

 Id., at 318-19, 95 S. Ct. at 2355 (Emphasis supplied).

 B. Laches

 Defendants argue that the doctrine of laches bars the challenge to phase 1 (the interceptor) and phase 2 (the 12 mgd plant).

 1. The Interceptor

 EPA issued its Negative Declaration as to the interceptor on April 23, 1976, thereby stating unequivocably that it would not prepare an EIS on that phase of the project. This lawsuit was not commenced until May 31, 1978 and it was not until the filing of an amended complaint in October 1978-21/2 years after the Negative Declaration-that plaintiff sought to challenge the interceptor portion of the project. Moreover, it was not until April 12, 1979-3 years after the Negative Declaration-that plaintiff filed its motion for a preliminary injunction. As of May, 1979, construction of the interceptor was 80% complete. Savedoff Aff.

 The doctrine of laches takes on a different meaning in environmental litigation. Shiffler v. Schlesinger, 548 F.2d 96, 103 (3rd Cir. 1977). In Shiffler, the Defense Department announced in April, 1973, that it would consolidate the Army Signal School at Fort Monmouth with the Southeastern School at Fort Gordon where new facilities were being constructed. At the same time, it announced that no EIS would be prepared. The project was 85-90% complete in December 1975 when plaintiffs challenged the EIS decision. The district court denied injunctive relief on the ground of laches. The Third Circuit affirmed, saying:

Unlike private interest litigation, when NEPA has been violated, considerations of administrative inconvenience, cost or delay which may be presented in answering a tardy suit are not appropriate considerations upon which to justify withholding equitable relief. The central consideration is whether interruption of the (project) which is in progress would severely prejudice the public interest which the agency action is serving ; however, "(d)elay and concomitant cost increase (in completing the project) would not alone justify non-compliance with the Act." ...
NEPA specifically contemplates that the administrative decision making process will be burdened with the procedural requirements ... Therefore, as long as some environmental harm can still be ameliorated, compliance with NEPA will generally be ordered. When, however, the irreversible commitment of resources has already produced most of the environmental harm which an EIS would have anticipated, the costs-benefits matrix facing the decision maker is significantly altered, and the marginal utility ... of enjoining the project may be substantially lessened.... This is more likely when the district court finds that although the agency has not fully complied with NEPA, it has identified and considered the major environmental hazards. In this situation, the marginal environmental protection afforded by an injunction will be lessened to the extent that forcing full compliance with NEPA is unlikely to alter the substantive decision so as to produce environmental benefits.

 Id., at 103-4 (Emphasis supplied.)

 Under Shiffler, the court in environmental litigation must focus not on plaintiff's delay in instituting suit but on the public interest. The public interest is not served by an injunction where an agency has "irreversibly committed its resources" to an ongoing project which is largely complete, particularly when the agency has already considered the environmental impact of the project.

 In this case, the interceptor is 80% complete. The EPA has already committed $ 8 million to the project; RVRSA has committed another $ 7 million. The existing interceptor constitutes a health hazard to the residents of Rockaway Valley. The EPA and RVRSA have considered the environmental effects of the project in numerous reports and hearings. Under these circumstances, the Court finds that the interceptor portion of the project can no longer be challenged. This would be so even if plaintiff's delay were excusable; under Shiffler a plaintiff's motives are irrelevant.

 2. The 12 mgd Plant

 A different question is presented as to the 12 mgd plant. The Negative Declaration on this portion of the project was not issued until March 21, 1978. EPA has not yet committed any funds; in fact, this phase of the project is currently subject to AWT review. We hold that, under Shiffler, plaintiff's challenge to phase 2 is not barred by laches.

 III. NEPA and EPA Regulations Promulgated Thereunder

 A. The Statutory Framework

(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 ...

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