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EDF, INC. v. COSTLE

September 16, 1977

ENVIRONMENTAL DEFENSE FUND, INC., NATURAL RESOURCES DEFENSE COUNCIL, INC., GREAT SOUTH BAY AUDUBON SOCIETY, INC., LYMAN LANGDON AUDUBON SOCIETY, INC., MORICHES BAY AUDUBON SOCIETY, INC., SAVE OUR BAYS ASSOCIATION, SOUTH SHORE AUDUBON SOCIETY, INC., and THE LONG ISLAND ENVIRONMENTAL COUNCIL, INC., Plaintiffs,
v.
DOUGLAS M. COSTLE, Administrator, U.S. Environmental Protection Agency; ECKARDT C. BECK, Regional Administrator, Environmental Protection Agency; the ENVIRONMENTAL PROTECTION AGENCY; HUGH L. CAREY, Governor of the State of New York; PETER A.A. BERLE, Commissioner of the Department of Environmental Conservation of the State of New York, New York State Department of Environmental Conservation; and the DEPARTMENT OF ENVIRONMENTAL CONSERVATION OF THE STATE OF NEW YORK, Defendants



The opinion of the court was delivered by: BARTELS

BARTELS, District Judge

 Eight privately funded, non-profit public interest environmental organizations whose members utilize and depend upon the water resources of Nassau and Suffolk Counties ("Bi-County area"), bring this action seeking declaratory and injunctive relief against the Environmental Protection Agency ("EPA"), its Administrator, and its Regional Administrator for the New York area ("federal defendants") and the Governor of the State of New York, the New York State Department of Environmental Conservation ("DEC") and its Commissioner ("state defendants") against the funding and construction of Long Island sewage treatment facilities. The complaint charges violations of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. ("NEPA"), and the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251 et seq. ("FWPCA"), as well as the "intent of several state statutes." Jurisdiction is invoked under 28 U.S.C. § 1331, FWPCA, 33 U.S.C. § 1365(a)(2), the Administrative Procedure Act, 5 U.S.C. §§ 701-06, *fn1" the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the Mandamus and Venue Act, 28 U.S.C. § 1361.

 The plaintiffs commenced this action in December, 1974, following the required notice under 33 U.S.C. § 1365(b) to the EPA Administrator and the State of New York, alleging a two-fold attack that in numerous respects (a) the environmental impact statement ("EIS") does not meet the requirements of NEPA, and (b) defendants failed to perform nondiscretionary acts under FWPCA and acted arbitrarily in failing to comply with the provisions of that statute. Defendants have asserted the defense of laches predicated upon the plaintiffs' delay of two years in complaining of the inadequacy of the program EIS and the failure to prepare an EIS for two treatment plants in the Bi-County area. They have failed, however, to demonstrate by any evidence that they have suffered prejudice by the delay and accordingly the court, at the outset, strikes the defense. Cf. City of Rochester v. United States Postal Service, 541 F.2d 967, 976-78 (2d Cir. 1976); Steubing v. Brinegar, 511 F.2d 489 (2d Cir. 1975). The defendants move pursuant to Fed.R.Civ.P. 56 for summary judgment, *fn2" and plaintiffs cross-move pursuant to Fed.R.Civ.P. 65 for a preliminary injunction. A statement of the background which has triggered the complaint is appropriate for the understanding of the environmental issues and impacts involved.

 Background

 According to the Environmental Impact Statement issued in July, 1972 by EPA, the population of Nassau County between 1950 and 1960 almost doubled, growing from 673,000 to 1,300,000, and the population of Suffolk County nearly tripled, rising from 276,000 to 667,000. From 1960 to 1970 Nassau's population increased by only 10% to 1.4 million, and Suffolk's population increased by 69% to 1.1 million. EPA predicts in this statement that by the year 2020 the population of Nassau County is expected to reach 2 million, and the population of Suffolk County is expected to reach 4.7 million. This increase in population has caused an increase in the consumption of fresh water and the quantities of sewage to be disposed of on Long Island. At the present time there are several state, county and quasi-governmental agencies involved in water resources planning and management relative to Nassau and Suffolk counties. In Nassau County sewer service had been extended to more than half of the population by 1970, and in Suffolk County as of 1970 only 7% of the population was served by sewers. The rest of the Nassau and Suffolk County residents depend upon cesspools, septic tanks and other individual disposal systems for their sewage. The seepage of untreated wastewater from these cesspools and septic tanks has, by contamination, threatened the quality of underground water which serves as the sole drinking water supply. This seepage, however, has at the same time helped to maintain the level of fresh, although contaminated, ground water on Long Island.

 As a solution to the problem the defendants have proposed the construction of sewage treatment facilities providing for use of ocean outfall pipes for the disposal of treated wastewater. Claiming that the problem can only be solved by the recharge to the ground water of treated wastewater, the plaintiffs object to this method of disposal.

 It is admitted that in time the utilization of ocean outfalls for sewage purposes would cause a diminution of the quantity of potable ground water available. The drop in the ground water level in turn will invite the intrusion of salt water from the surrounding marine environment into the fresh water aquifers (Glacial, Magothy, and Lloyd) to fill the void. *fn3" Such outfalls would also increase the salinity of the bay waters since a lowering of the ground water table would result in diminished stream flow of fresh water into the bays, which in turn would have serious adverse consequences on fish, shellfish, wildlife and other natural resources. However, the method for recharging treated wastewater to the ground water has not, according to the EPA, reached a technological stage where it can safely or practicably be employed. In view of the threat to the quantity of the fresh ground water and other adverse environmental effects, plaintiffs claim that the EPA has not considered all the required environmental impacts involved in the construction of ocean outfalls and the alternative thereto. Defendants, being compelled to make a choice, insist that while awaiting technological development for recharging treated wastewater, the only safe method of disposal for the present is through ocean outfalls.

 Although there are presently twenty-seven municipal and county outfall pipes discharging an average of 110 million gallons per day ("mgd") into coastal waters of the Bi-County area and there were a total of ten wastewater treatment projects under construction at the time the EIS was issued (EIS at 1-2), the plaintiffs focus only upon the following plants which are the three largest plants in existence or presently under construction which they claim will have the greatest cumulative environmental impacts.

 The Bay Park Plant ("Bay Park"). This facility, which provides secondary sewage treatment, *fn4" was constructed some twenty-three years ago and has an actual outfall flow into Reynolds Channel as high as 72 mgd. The dispute concerning Bay Park centers upon possible funding of expansion and upgrading of the facility and the preparation of an individual environmental impact statement should such federal funding be proposed.

 The Wantagh Plant ("Wantagh") in southeastern Nassau County. This plant, which provides secondary sewage treatment, has an initial design capacity of 45 mgd for the early 1980's with an ultimate design capacity of 120 mgd by the year 2020. It is now in operation and its treated effluent is being discharged into the ocean through an outfall pipe 13,287 feet long and 84 inches in diameter which crosses beneath the Great South Bay, over the barrier beach at Jones Beach, and into the Atlantic Ocean where the effluent is discharged at a depth of 48.5 feet beneath the ocean surface. Wantagh serves an area of 105 square miles, which in 1972 had a population of about 662,000 persons. EIS at 19. This project first received federal approval in 1968 and as of July, 1972, it was under construction. The history of federal funding and the statutes under which such grants were made for Wantagh are set forth in the appendix.

 The Southwest Sewer District Plant ("SWSD") in Suffolk County. This facility will provide secondary wastewater treatment for an area of 57 square miles which in 1972 had a population of 240,000. At that time there existed no sewage treatment facility which served the area and sewage wastes were ultimately disposed of in the Great South Bay via ground and stream disposal. EIS at 27. SWSD has a design capacity of 30 mgd for 1985 and it will have an outfall pipe 5.49 miles long with a diameter of 72 inches, which will cross beneath the Great South Bay, over the barrier beach and terminate in the ocean after being buried in a trench 2.5 miles in length at a depth of 52 feet beneath the ocean surface. Federal funding for the SWSD was approved in 1971, the details of which are set forth in the appendix.

 The parties agree that the State since 1970 has required that all publicly owned sewage treatment facilities, including SWSD, built or designed in the Bi-County area be constructed in a modular fashion so as to allow for the addition of advanced wastewater treatment equipment which could be utilized with recharge of treated wastewater to the ground water.

 National Environmental Policy Act

 This court unquestionably has jurisdiction of the controversy under FWPCA which in turn mandates the application of NEPA to federal funding of publicly owned water treatment works. FWPCA §§ 505(a), 511(c)(1). See Senate Comm. on Public Works, 93d Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972, at 182 (Comm. Print 1973) (hereinafter cited as "Legislative History"). The purpose of the legislation is made clear in sections 2 and 101 of NEPA, which declare the national policy to be the promotion of efforts by all practicable means to prevent or eliminate damage to the environment and to create conditions whereby man and nature can exist in productive harmony for present and future generations. Subsection 102(2)(D) of NEPA requires all federal agencies specifically to study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. Subsection 102(2)(C) requires the preparation of a detailed environmental impact statement by all federal agencies on the significant impacts of every proposal for major federal action affecting the quality of the human environment and it mandates consideration of five specific factors. *fn5" As pointed out in Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 146 U.S. App. D.C. 33, 449 F.2d 1109, 1113 (1971), there will be conflicts among competing considerations but the conflicts should be identified and balanced by the agency, and a recommendation disclosed in the EIS. See Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 787, 49 L. Ed. 2d 205, 96 S. Ct. 2430 (1976); Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975); 40 C.F.R. Pt. 1500 (1976). *fn6" The statute forces consideration of environmental factors but it "does not require specific results in particular situations." Chelsea Neighborhood Ass'ns v. United States Postal Service, 516 F.2d 378, 384 (2d Cir. 1975). The kind of environmental impact statement required depends upon the type of "'federal action' being taken." Aberdeen & Rockfish R. Co. v. SCRAP (SCRAP II), 422 U.S. 289, 322, 95 S. Ct. 2336, 45 L. Ed. 2d 191 (1975). The procedural requirements must be observed "to the fullest extent possible." Section 101(b) requires agencies "to use all practicable means, consistent with other essential considerations of national policy," to protect environmental values. NEPA is, "at the very least, 'an environmental full disclosure law,' . .. for agency decision makers and the general public." Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972).

 The Environmental Impact Statement

 In June of 1971, EDF petitioned EPA to prepare individual and overall NEPA statements with respect to the Long Island sewage treatment facilities to be funded by the federal government. In December of 1971 the local Regional Administrator of EPA issued a draft "Environmental Impact Statement on Waste Water Treatment Facilities Construction Grants for Nassau and Suffolk Counties, New York" and the final statement was issued in July of 1972 and approved and adopted by EPA in August of 1972 as required by § 102(2)(C) of NEPA. During the period between the draft and final EIS, public hearings were held on Long Island and interested persons and organizations submitted reviews and criticisms of the draft. In the EIS the EPA reached the following conclusions and recommendations:

 
CONCLUSIONS
 
1. The construction and operation of collection systems and effective wastewater treatment facilities are essential to the protection of Long Island's water supply.
 
2. As soon as the technology is demonstrated, it would be advantageous for Long Island to implement ground-water recharge for the optimum utilization of its water resources.
 
3. A concerted effort must be made to preserve the remaining marshland habitat.
 
4. Water resource planning and management programs for all of Long Island must be implemented to insure both effective and efficient utilization of available water resources. At the present time, the interim metropolitan and basin plans required by Federal regulations are necessarily limited to the effects of specific treatment plants and ancillary equipment. It is imperative that the planning and management program for all of Long Island be completed as expeditiously as possible for inclusion in fully developed plans by July 1, 1973.
 
5. Maximum utilization of available water resources necessitates the use of a combined system of ground-water recharge and ocean discharge of treated wastewater. Ocean outfalls are required backup facilities for ground-water recharge because of the problems associated with plant failure. Until such time as the technology for wastewater treatment and recharge has been both fully developed and implemented, disposal of all treated effluent to the ocean is the only feasible alternative. [Emphasis added.]
 
RECOMMENDATIONS
 
1. Proceed, as expeditiously as possible with the construction and operation of properly designed collection, treatment and disposal facilities in accordance with the principles embodied in this environmental impact statement.
 
2. As soon as the results of the EPA -- sponsored Wantagh feasibility study are known, a full-scale (about 5 mgd) project should be undertaken to demonstrate the reliability and consistent attainment of high levels of treatment, including nitrogen removal, and groundwater recharge of treated wastewater.
 
3. The construction of wastewater treatment facilities should not utilize marshlands.
 
4. To insure that growth is consistent with the maintenance of environmental quality, planning for Nassau and Suffolk Counties should include:
 
a) the accurate determination of both the population levels and the industrial wasteloads that can be supported by available natural resources, and
 
b) the development of controls to insure that domestic and industrial wasteloads do not exceed the environment's capacity to support them.
 
The New York State Department of Environmental Conservation should exercise its functions on Long Island to promote and coordinate management of water, land and air resources to assure their protection, enhancement, provision, allocation and balanced utilization consistent with the environmental policy of the State.
 
5. It is recommended that a combined system of ground-water recharge and ocean discharge be developed for the disposal of treated wastewater. Investigations to determine which areas require ground-water recharge and the optimum methods of recharge for the affected areas should be actively pursued. Until such time as the technology has been fully demonstrated and recharge has been implemented, it is recommended that ocean outfalls be utilized as the only feasible alternative.

 EIS at 254-56. *fn7"

 In reviewing the adequacy of the EIS the court must decide whether the agency's consideration of the factors listed in NEPA § 102(2)(C) was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or without observance of the procedure required by law. Chelsea Neighborhood Ass'ns v. United States Postal Service, supra, 516 F.2d at 387 n.23; Hanly v. Kleindienst (Hanly II), 471 F.2d 823, 828-30 (2d Cir. 1972), cert. denied, 412 U.S. 908, 36 L. Ed. 2d 974, 93 S. Ct. 2290 (1973). *fn8" As stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), even though there is no de novo review or requirement that the agency's action meets the substantial evidence test, there remains a "thorough, probing, in-depth review" to be undertaken by the court. Id. at 415. The court must determine whether the decisionmaker acted within the scope of his authority, and further, though "the court is not empowered to substitute its judgment for that of the agency," it must decide whether "the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416.

 The Complaint

 Plaintiffs have cast their complaint in the form of twenty claims for relief, four under the heading of NEPA and sixteen under the heading of FWPCA, many of which include numerous independent subclaims. For example, the first NEPA claim contains twelve subclaims and the second NEPA claim contains twenty-two subclaims. A substantial number of the claims under both NEPA and FWPCA are simply repetitions or variations of the same theme as violating both Acts. In order to give proper attention to all the claims some repetition is necessary but as far as possible the court has limited its consideration only to those claims of substance. In their first NEPA claim the plaintiffs have subjected the EIS to a microscopic examination and dissection and complain of the inadequacies of the disclosures, analysis, impacts, and the alternatives set forth therein. After carefully addressing the NEPA claims, the court concludes that the defendants have complied, with one exception, to the fullest extent possible with the NEPA mandates as appears from a seriatim discussion of each claim and subclaim of substance *fn9" in the order stated in the complaint.

 Alleged EIS Inadequacies

 a. Hydrologic Impacts

 Plaintiffs assert that the EIS fails to make and disclose quantitative estimates of the cumulative hydrologic impacts of the outfall sewering program on all of the water resources of the Bi-County area under both average and stress drought conditions. They point out that throughout much of Nassau and western Suffolk counties the Wantagh and SWSD disposal systems will cause a drawdown ranging from 1-1/2 to 20 feet in the water table which will cause a reduction in average annual stream flow of from 35 to 40 percent within five to ten years and will cause a reduction of subsurface outflow to the Great South Bay of an as yet undetermined amount. Plaintiffs assert that such estimates are necessary and critical to evaluate the impacts of the program on fish, wildlife, and the salinity of the Great South Bay.

 Upon this subject EPA was advised by the United States Geological Survey that there were not sufficient technological data available to make accurate or meaningful predictions of the extent of water drawdown. The EIS acknowledges that it cannot answer the question of when it will be necessary to recharge the ground water supply with wastewater effluents in order to maintain stream and lake levels, to maintain specified positions of the fresh/salt water interfaces, and to maintain a supply of potable ground water. EIS at 237. It admits that definitive quantitative answers will have to await results of present and forthcoming studies. EIS at 242. After describing the ground water conditions of Long Island, the statement explains the physical movements of water under, on and around Long Island and the estimated volume of fresh ground water. EIS Table 34. It states that the average annual recharge to the ground water reservoir is 80 mgd from the water runoff of urban areas into recharge basins, and it further admits that evidence has been found that the loss of recharge in southeastern Nassau resulting from increased direct runoff has caused a decline of 1-2 feet in the average ground water level. *fn10"

 The EIS does in fact contain hydrologic data. It refers to salt water intrusion and stream flow, including information pertaining to the drought conditions of the early 1960's and the effects of sewering in southeastern Nassau County. EIS at 51, 88, 97, 128-29, 191, 205, 210. *fn11" It does not, however, contain predictive data or extrapolations from that data presented as to the expected quantitative impacts of outfall sewering on the Bi-County's hydrologic system.

 Although the NEPA process requires that the decisionmaker be provided with a detailed and careful analysis of the relative environmental merits and demerits of the proposed action, Natural Resources Defense Council, Inc. v. Callaway, supra, 524 F.2d at 92, it does not impose a requirement of perfection nor does it require that all environmental impacts be known. There is a recognition that the EIS by its very nature comes before, and not after the actions to be evaluated have taken place. Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 & n.11 (9th Cir. 1973); Movement Against Destruction v. Trainor, 400 F. Supp. 533, 552 (D.Md. 1975); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 927 (N.D. Miss. 1972), aff'd, 492 F.2d 1123 (5th Cir. 1974).

 At most, plaintiffs assert that EPA should have provided "rough" estimates of the hydrologic impacts. There can be no dispute that these impacts are among the most significant factors to be considered by the decisionmaker, but the court cannot conclude that the absence of such detailed, but "rough" information is fatal in light of the information which the EIS does contain. The court finds as a matter of law that that data and the discussion upon this subject contained in the EIS are sufficient. *fn12"

 b. Fish, Wildlife, Recreation: Streams, Bays and Ocean

 One of the more serious complaints by the plaintiffs among the many charges of deficiencies in the EIS is that the statement does not adequately describe and quantify the potential adverse effects of the sewering program on surface stream recreational amenities, fish and wildlife resources, and the potential risks of serious damage to the shellfish and finfish industries. In support of this charge plaintiffs refer to the comments of the Fish and Wildlife Service of the U.S. Department of the Interior concerning the draft EIS, stating that there is no mention of the expected impact on fish, wildlife, and other natural resources. Plaintiffs emphasize the importance of the fishing and other recreational uses of the area's surface waters, adding that the $100 million per year shellfish industry may be jeopardized by an increase in salinity in the Great South Bay, thus decreasing productivity of the clam beds. However, EPA did consider this subject as appears from the eight specific findings in the margin, *fn13" and the only deficiency which we find is in respect to the magnitude of the injury to the shellfish industry.

 The EIS refers to the Wantagh outfall and its construction in particular, and includes the effects of both on fish and clams and on shrubs, trees, rabbits, songbirds, gulls and terns where the pipe crosses land. EIS at 107-09, 110. At the same time the effect on ocean productivity of the outfall flow upon shellfish and bay salinity and upon stream flow and water table lakes is also discussed but not sufficiently. EIS at 115-17, 118, 121.

 The EIS asserts that polluted fresh water input resulting from pollution of the aquifers by individual waste disposal systems has a negative impact upon the estuarine *fn14" ecosystem as would the alternative discussed of discharging treated effluent into the bays of Long Island. EIS at 127-29, 142. Among the short-term uses or environmental effects associated with the long-term benefits predicted in the EIS as a result of outfall sewering on Long Island rather than cesspool disposal are improvement of bay water quality resulting from cleaner ground water, the potential for opening of more shellfish beds, and the creation of more sites for recreational uses. EIS at 189. EPA asserts in the EIS that the discussion therein provided reflected the best information available, and that while the agency sought additional information from responsible agencies, no significant material was obtained. It admits that research remains to be done in many such areas. EIS at 206, 208.

 In criticism of the EIS the plaintiffs have submitted an affidavit dated October 2, 1975, of Stephen G. Lane, Vice-President of Bluepoints Co., Inc. (the largest shellfish company on Long Island), President of the Long Island Shellfish Farmers Ass'n and President of the Regional Advisory Council for the New York State Department of Environmental Conservation. He outlined in detail the potential harm to the shellfish industry from an increase in salinity of the Great South Bay, pointing out that the shellfish industry employs 12,000 people and is the second largest industry on Long Island with a gross value in excess of $100 million per year. He stated that 40 percent of the hard shell clams harvested in the United States each year come from the Great South Bay and that this represents a significant portion of the total value of all commercial fishing in New York State; that the use of ocean outfalls will reduce fresh water discharges into the Great South Bay by lowering of the water table, which in turn will increase the bay salinity which is the most important water quality parameter for the production of shellfish. Among other charges, Stephen Lane affirms that if the salinities were to increase beyond the present levels, hard shell clam spawning and larval survival will be seriously affected and that now "the bay is in a precarious balance." He also refers to the detrimental effect on the shellfish industry caused by the drought period on Long Island during the 1960's, citing at the same time the results of a United States Geological Survey electrical analog model which reveals that total average stream flows in the Wantagh and SWSD areas will be reduced by 26 percent by 1980 and almost 40 percent by 1985. He concludes that the EIS does not quantify the effect of salinity changes on the shellfish industry or assess the cumulative benefits and costs of outfall sewering upon the industry.

 While this and other information may not have been available to the EPA when the EIS was issued in 1972, it seems apparent that such information is now available. Consequently, the effect of outfall sewering upon the shellfish industry can and must be more specifically stated in a supplemental impact statement in order to assure that the decisionmaker may properly analyze and consider all of the significant effects on the environment of outfall sewering. Of course, the EIS speaks as of the date of its issue and the fact that there are some effects which were then unknown does not make the statement inadequate. Cady v. Morton, supra, 527 F.2d at 796; Jicarilla Apache Tribe of Indians v. Morton, supra, 471 F.2d at 1280 & n.11. However, when an information gap of this importance exists and there is not sufficient information in the statement to permit even an educated guess as to the magnitude of the injury to the shellfish industry, we believe that NEPA requires the agency to take a harder look at this particular environmental problem since there is a credible basis for finding that the gap may now be filled. Cf. Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908 (D.Ore. 1977); City of Romulus v. County of Wayne, 392 F. Supp. 578, 588 (E.D. Mich. 1975); Council on Environmental Quality Guidelines, 40 C.F.R. § 1500.11(b) (1976). At all events, since the outfall sewering under consideration may be modified or changed in ...


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