The opinion of the court was delivered by: OWEN
Plaintiff Town of Orangetown commenced this latest action seeking for the second time in as many years to enjoin defendants United States Environmental Protection Agency (E.P.A.) and New York State Department of Environmental Conservation (D.E.C.) from taking steps to process a grant of money to defendant Rockland County Sewer District (R.C.S.D.) for reconstruction of its sewage treatment plant. Defendants have moved to dismiss, asserting that most of the claims raised in the instant action were resolved in defendants' favor in the lawsuit between the same parties in this Court last year, and either that plaintiff has failed to state a cause of action or that defendants are entitled to summary judgment as to the remaining claims. Defendants have also moved for attorneys' fees for the portion of this action barred under the doctrine of res judicata by determinations in the prior proceedings in this Court and the Court of Appeals for the Second Circuit. For the reasons set forth below, the complaint is dismissed in its entirety.
This litigation concerns the continuing efforts of R.C.S.D., with the financial and technical support of E.P.A. and D.E.C., to expand and upgrade its admittedly outmoded sewage treatment facilities. Pursuant to 40 C.F.R. § 35.903(a), federal grants for such efforts are divided into three steps. The Step 1 grant for facilities planning was made to R.C.S.D. in 1976. The Step 2 grant for plans and specifications was made in September, 1980 and detailed plans were drawn up based on the facilities plan developed in Step 1. Step 3, which is the subject of this litigation, involves the actual construction of the treatment facilities planned in Steps 1 and 2. Step 3 has been segmented into the separate phases of construction of this fairly substantial project.
Phase I of the Step 3 grant, which was for construction of odor control mechanisms and other work on the R.C.S.D. facilities, was awarded in October of 1982, Phase II of the Step 3 grant, which covers the actual expansion and renovations of the plant, was awarded on June 3, 1983. R.C.S.D. objected to one of the Special Grant conditions attached to the initial Phase II grant and refused to accept the award unless it was changed. After a period of reconsideration, which will be discussed herein, E.P.A. amended this condition, which had limited the sewage hookups to be allowed before the expanded waste treatment system was completed. On June 27, 1983, R.C.S.D. accepted the Phase II grant with the modified Special Condition.
In October, 1981, the Town of Orangetown filed its first action against R.C.S.D., E.P.A., D.E.C., Rockland County and the Town of Ramapo. Orangetown v. Gorsuch, 81 Civ. 1197 (RO). That complaint included claims that this grant, then in Step 2, required an impact statement pursuant to the New York State Environmental Quality Review Act ("SEQRA"), that in making the grant award E.P.A. violated the National Environmental Policy Act (N.E.P.A.) by failing to prepare an Environmental Impact Statement, and that the grant award violated various requirements of the Clean Water Act (C.W.A.). Orangetown also asserted that the R.C.S.D. plant constituted a nuisance and R.C.S.D. counterclaimed that the adjacent plant operated by Orangetown constituted a nuisance.
After close to a year of discovery, the action proceeded to trial on October 12, 1982. Discovery had been expedited and an early trial date set because R.C.S.D. was unable to issue bonds to begin work on the project while the action challenging the grant was pending. At the beginning of trial, Orangetown amended its complaint to include Step 3, Phase 1 of the project. After an eleven-day trial, I dismissed Orangetown's claims and R.C.S.D.'s counterclaim of nuisance. These conclusions and the findings of fact made in their support were upheld by the Court of Appeals for the Second Circuit in a detailed opinion. Town of Orangetown v. Gorsuch, 718 F.2d 29 (2nd Cir. 1983).
After the issuance of this Court's opinion in Orangetown v. Gorsuch, but before the Court of Appeals affirmed, Orangetown sued again. It now raises three objections to the award of the Step 3, Phase II grant. First, plaintiff contends that E.P.A. and D.E.C., to which E.P.A. has delegated the authority to make certain findings, did not make all the determinations required by 40 C.F.R. § 35.925 and 33 U.S.C. § 1284. Second, it asserts that E.P.A. improperly amended Special Grant Condition 3, which limited additional hookups to the County plant before its expansion was complete, in response to "intense political pressure." Finally, plaintiff contends that E.P.A. improperly failed to determine whether a "significant change" has occurred in the project or its impact, as described in the facilities plan, in violation of 40 C.F.R. § 6.502(a)(2).
I. Required Determinations Under 40 C.F.R. § 35.925 and 33 U.S.C. § 1284.
Plaintiff concedes that the R.C.S.D. plan is not different from the plans developed in Step 2 and approved by this Court and the Court of Appeals in Orangetown v. Gorsuch. In fact, it is conceded that much of the subject matter of the instant action was reviewed and determined in the earlier suit. Plaintiff has, accordingly, abandoned most aspects of its claim that E.P.A. and D.E.C. failed to make the requisite findings under 40 C.F.R. § 35.925 and 33 U.S.C. § 1284. (Sive affidavit of October 20, 1983 at para. 13). Plaintiff continues to assert that, notwithstanding the decisions in Orangetown v. Gorsuch, seven such determinations were improperly neglected. Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56 as to each of these remaining determinations.
The essential determinations which E.P.A. had to make in support of its basic award of the instant grant were all specifically considered by the Court of Appeals in Orangetown v. Gorsuch:
Orangetown contends that E.P.A. failed to assess and make specific findings required by 40 C.F.R. §§ 35.925-1 through 35.925-21. These sections set forth a series of conditions that E.P.A. must find to exist prior to the award of a grant under the construction grants program for sewage treatment works. We note, however, that while a clear and concise document outlining seriatim the agency's response to the demands of Section 35.925 would be of considerable assistance to a court's review of E.P.A.'s actions, the regulations do not require that the agency's actions be set down in any particular order or form, or even that its determinations be made in writing. All that is necessary is that a reviewing court be able to trace from the written record the path followed by the agency in deciding to take a particular action. See generally Bowman Transportation, Inc. v. Arkansas Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S. Ct. 438, 42 L. Ed. 2d 447 (1974). (footnote omitted). Town of Orangetown v. Gorsuch, supra, at 40.
Assessing Orangetown's new attack, it seems clear from the record before me that E.P.A. has met this requirement as to each of the determinations which plaintiff continues to challenge. Most of these determinations were made prior to Phase II of Step 3 of the instant grant by a process that was held to be acceptable by this Court and the Court of Appeals in the earlier action:
Although there is no separate document listing specific determinations with respect to every element in 40 C.F.R. at § 35.925, taken as a totality, the Administrative Record reflects that the objectives of 40 C.F.R. § 35.925 were accomplished and therefore E.P.A. complied with its terms. ...