Petition — Bosco v. Beck

—

Supreme Court, U.S

R{ LE}

APR 15 1980

ICHAEL RODAK, JR., CLERt

In The

SUPREME COURT OF THE UNITED STATES

October Term 1979

79-1643

No.

MARGARET E. BOSCO, Petitioner

Ve

ECKARDT C, BECK, Region II

Administrator ,U.S.ENVIRONMENTAL

PROTECTION AGENCY ,OUGLAS COSTLE,

as Administrator , U.S.ENVIRONMENTAL

PROTECTION AGENCY, JERRY ENGLISH,

as Commissioner , N.J.DEPARTMENT OF

ENVIRONMENTAL PROTECTION, PEQUEST

RIVER MUNICIPAL UTILITIES AUTHORITY

(WARREN COUNTY) and TOWN OF BELVIDERE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

MARGARET E, BOSCO

167R Washington Street

Belvidere , New Jersey

201-475-2715 07823

Petitioner pro se

Be

In The

SUPREME COURT OF THE UNITED STATES

October Term 1979

No.

MARGARET E. BOSCO, petitioner

Ve

ECKARDT C. BECK, Region II

Administrator ,U.S.ENVIRONMENTAL.

PROTECTION AGENCY ,OUGLAS COSTLE,

as Administrator , U.S.ENVIROMNMENTAL

PROTECTION AGENCY, JERRY ENGLISH ,

as Commissioner , N.J.DEPARTMENT OF

ENVIRONMENTAL PROTECTION, PEQUEST

RIVER MUNICIPAL UTILITIES AUTHORITY

(WARREN COUNTY) and TOWN OF BELVIDERE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

MARGARET E. BOSCO

167R Washington Street

Belvidere , New Jersey

201=-475=2715 07823

Petitioner pro se

>.

i

INDEX

Opinion BHELOW. cccccccccccccccccccces

JUPISGLICELON. .ccccccccccccccccccccce

Questions presented. .cccccccccccccece

Statutory and

Constitutional Provisions........-..

Othe references... s¢-. e@eeeseeeeees &

Cases ee ie ee eke ebeoe oO

Statement Of Che CABRecccccccccecsccses

Reasons for granting the writ.......

EE EE ee

Affidavit of EO ee eee a

Appendix

A Order of the United States

Court of Appeals for the

Third i ae a i

B Order of U.S.District Court

for the District of

New Jersey @eee7e*eeesee7e91eeeeees¢e

EEE

Cc Affidavit/ BMS Gc ccccescecos

34

35

37

73

ii

INDEX (continued)

CITATIONS

63 Har. Law Rev. S-13 1949

Davis Administrative Law

Ethics Manual For House of Represent-

atives Chap. 4 Hse Doc. 96-134

CASES CITED

Shiffler supra 548 F. 2d 104 n.5

N.A.A.C.P. v. Medical Center, 584 F. 2d

619, 635 n.- 19

Kleppe 427 U.S. 412

Citizens to Preserve Overton Park

ve Volpe, 402 U.S.(1921

Duguesne Light Co. v. EPA, S22 F. 2d 1186,

1192-93 (3d Cir. 1975)

Buck Hill Falls v. Grant, 388 F. Supp. 394

(1975), 537 F. 2d 29 (1976), 388 F. Supp.

398

Hanly v. Kleindienst , 471 F. 2d 823

(2d Cir. 1972)

Wyoming Outdoor Coorindating Council

v. Butz, 484 F. 2d 1244 (lOth Cir.1973)

Minnesota Public Interest Group v. Butz

498 F. 2d 1314 (8th Cir. 1974

Sierra Club v. Froehkle, $34 F. 2d 1289

Nucleus of Chicago Home Owners Assoc.

ve. Lynn, 524 F. 2d 225 (7th Cir,1975)

First National Bank of Chicago v.

Richardson, 484F. 2d 1369, 1381(7th Cir.

1973)

e834

INDEX continued

CASES. Cited

Mid-Shiawassee County Concerned Citizens

v. Train, 408 F. Supp. 650

U.S. v. Miss. Valley Gen. Co, 5 L. Ed 268

E. Stanley v. ILL., 92 S. Ct. 1208,

405 U.S. 645, 31 L. Ed 2d S51 U.S. ILL.

(1972)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1979

No.

MARGARET E,. BOSCO, Petitioner

Ve

ECKARDT C. BECK, ET AL, Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The petitioner Margaret E. Bosco >

respectfully prays that a writ of certior-—

ari issue to review the Judgment Order of

the United States Court of Appeals for the

Third Circuit entered in this proceeding

on January 18 , 1980 , affirming the Decis-

ion of the U.S.D.C., August 30, 1979.

OPINION BELOW

The Opinion of the Court of Appeals

appears in the Appendix hereto,App. A.

The Opinion of the U.S.D.C. for New Jersey

also appears in the Appendix hereto, App.B.

aQo

JURISDICTION

The judgment of the Court of Appeals

for the Third Circuit was entered on

January 18, 1980. A timely petition for

certiorari was filed within 90 days of

that date. This Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1) and

R. 19(1)(b), and R. 22(3).

QUESTIONS PRESENTED

1. Whether the Order of the United

States District Court for New Jersey was

erroneous because it was based On apply=

ing the wrong standard of review in that

it used the relatively low standard of

“arbitrary and capricious" rather than

that of “reasonableness”.

2- Whether, in assuming that "arbit-

ray and capricious" standard of review

was the proper one, the decision of the

U.S.D.C. not to require an Environmental

Impact Statement was supported by the

evidence.

3. Whether the decision of the Court

was in error by its failure to take into

consideration the relevant contributory

factors of the ‘armetwisting' by fact of

political intervention and alleged con-

flict-of-interests of special federal

ae |

government employee and other associates

of the Pequest River Municipal Utilities

Authority and. Town of Belvidere, as applic-

ants, in violation of federal statutes and

codes of ethics; bringing undue pressure

on government agency and affecting the

decision-making in formal administrative

process.

4. Whether the decision of the Court

was in error by its failure to take into

consideration the alleged pattern of

tarm=—twisting' which would increase the

likelihood of partiality, arbitrariness

and error in the administrative decislon

not to have an EIS to such an extent as

to deprive petitioner and other citizens

of their right to a fair and impartial

hearing.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

U.S.C. 42 § 4821 et seq.

U.S.C. 42 § 4332 et seq.

U.S.C. 18 § 201

UeS.C. 18 205

U.S.C. 18 § 434

Constitutional Amendment 14

United States Sup. Crt. Dig. Vol. SA

Constitutional Law, Supp. 1979

a--

OTHER REFERENCES

63 Har. Law Rev. S-13 1949

Davis Administrative Law §1.02

Ethics Manual For The Members And Employees

of The House of Representatives

Chapter 4. Documant No. 96-134, 96th Cong.

First Session

CASES CITED

Shiffler supra 548 F. 2d 104 n.5

N.A.A.C.P. ve. Medical Center, 584 F 2d 619,

635 n.19

Kleppe 427 U.S. at 412

Citizens to Preserve Overton Park v. Volpe,

402 U.S. (1971)

Duquesne Light Co. v. EPA, 522 F. 2d 1186,

1192-92 (3d Cir. 3975)

Buck Hill Falls v. Grant 388 F. Supp. 394

(1975), 537 F. 2d 29 (1976), 388 F. Supp.

398

Hanly ve. Kleindienst 471 F. 2d 823

(2d Cir. 1972)

Wyoming Outdoor Coordinating Council v.Butz

484 F. 2d 1244 (10th Cir. 1973)

Minnesota Public Interest Research Group

ve Butz, 498 F. 2d 1314 (8th Cir.1974)

Sierra Club v. Froehlke, 534 F. 2d 1289

Nucleus of Chicago Home Owners Assoc.v. Lynn

524 F. 2d 225 (7th Cir.1975)

First National Bank of Chicago v.Rishardson

484, F. 2d 1369, 1381 (7th Cir.1973)

Mid-Shiawassee County Concerned Citizens

ve Train, 408 F. Supp. 650

U.S. ve Miss. Valley Gen. Co., 5 Le Ed 268

E. Stanley v. Ill., 92 S. Ct. 1208,

405 U.S. 645, 31 L. Ed 2d S51 U.S.ILL.(1972)

afin

-STATEMENT OF THE CASE

The basis for the instant case stems

from the failure, and refusal, of the

Environmental Protection Agency (herein-

after referred to as EPA) to prepare and

issue the necessary Environmental Impact

Statement (EIS) within the meaning of the

National Environmental Policy Act (NEPA)

of 1969, and their own rules and regul-

ations pursuant to U.S.C. 42 § 4321 et

seqe and U.S.C. 42 § 4832 et seq., prior

¢o final approval of federal funding, in

the amount of $2 ,866,732.00 for regional

sewerage treatment facility construction,

and $1,800,929.00 for the town of Belvid—

ere collection system. EPA approval for

federal funding represents 75% of the

cost.

The cost continues to change, adding

ever-increasing adverse economic impact

to the already overburdened taxpayer and

resident; costs that were never explained

to the public.

The original feasibility study area

encompassed approximately 70 sq. mls.,

including the towns of Belvidere and

Oxford and Hope, and portions of the

-§—

townships of White, Knowlton, Mansfield,

Frelingheysen, Blairstown and part of

Washington; in the County of Warren.

When the Authority re-organized

in May, 1978, all towns and townships

withdrew as participants of the author-

ity, with the exception of Belvidere

and Oxford, with a total area remaining

of less than 7 sq. mls. (each with sep—

arate planned sewerage treatment facil-

ity and collection system); and White

Township, with an area of approximately

18 sqe mls., mostly rural, to be divided—-

up between the Belvidere and Oxford sew=-

erage facilities. Project design size .

remains the same as for the original area.

In August, 1978, after learning that

the with<drawal ‘deadline’ had passed,

White Township residents held a mass

meeting with township officials to pro-

test their inclusion as participants in

the sewerage projects and demanded that

township officials "get them out".

aJa

At said meeting it was learned that

Hotification of withdrawal date was not

brought to the attention of all members

due to a family emergency of one of the

officials who also serves on the Pequest

River MU Authority.

Members of the PRMUA include:

(1) John King, (now) former White

Township official and member of

the PRMUAs a Banker by profession,

(2) Henry Monetti, resident of

Mansfield Township; Real Estate

Broker by profession,

(3)Thomas Planer resident of Hope;

Insurance Executive by profession,

(4) Leonard Becker, Mayor of Oxford;

fuel oil company maintenance person=-

nel,

(5) Irene Smith Mayor of Belvidere

and former Special Federal Govern—

ment Employee as District Staff Aide

to former Congresswoman Helen Meyner.

After PRMUA ignored repeated requests

to meet with the White Township Planning

Board (relevant to the Master Plan of the

Township and the fact that the Belvidere

Treatment Plant would be located in White),

citizens organization CASE (Citizens Ag-

ainst Sewer Encroachment) , residents of

Belvidere and Oxford held another mass

meeting in the Warren County Courthouse

aQo

on October 25, 1978, to co-incide with

PRMUA meeting, whose members attended

very reluctantly, after strong insistance

of those in attendance at the meeting.

After lengthy and heated debate,

White was granted permission to withdraw

from the authority-——-only to have this

rescinded at a later date by then Comm

issioner O'Hern.

At that meeting, a letter was read—

from Eckardt Beck--stating that final

approval of the projects had been gran-

ted; omitting any reference to the Neg-

ative Declaration that had been issued

September 8, 1978, or the comment Limit-

ation (already ended).

Petiti ner and other citizens atten-

ded Authority meetings and Town Council

meetings requesting information relevant

to proposed costs to residents, adverse

impact to the environment, etc.; continu-

ally receiving the answer that "its too

early for any answers". After final

approval of federal funding by EPA, the

answers changed to “it's too late, where

were you earlier?" (Approval , Nov., 1978.

No mention was made of the political

intervention being conducted (verified

-9—

in affidavit of Irene Smith, spec. fed.

gov't. employee and chairperson of the

PRMUA).

Petitioner and others continued to

communicate, by phone and in writing,

with offices and officials of EPA and DEP,

requesting further study of the proposed

projects and the adverse impacts of same,

as well as requesting that alternatives

be considered. EPA inter-agency letters

attest to the fact that large regional

sewage systems are too costly for resid—

ents in small towns and rural areas with

populations of less than 10,000.

See A.R. #1-#31, communications to agencies.

These have not been referred to in any of

respondents! briefs to the lower Courts.

Offices of Attorney General and Public

Advocate were contacted to look into the

possibility of conflict-of-interest

of chairperson of PRMUA, attorney serving

‘anthority' and county.

Finally on February 15, 1979, capit=—

ulating to continued pressure by petitioner,

CASE members and others , EPA scheduled a

public meeting in the Courthouse in Belvi-

dere; making it very clear that this was

not a public hearing.

When announcing the impending meeting

at the January PRMUA meeting, chairperson

of ‘authority' stated that:

"this meeting is being held only

to ‘straighten out' the ‘loyal

Cpposition'.

On February 16, 1979, White Township

received the 'news!' that Commissioner

O'Hern had denied permission to withdraw

from the Authority; with the added inform—

ation that if they continued to pursue

this course, and should they be success-

ful in so doing, they would jeopardize

for any future time, any privilege of

applying for federal funding for any dis-

posal system problem, should the problem

arise.

In March, 1979, EPA issued the ‘ans-

wer' to the Feb. 15 meeting, in the form

of a Lengthy letter affirming earlier

approval of the projects and funding.

Also in March, 1979, petitioner , and

others , learned for the first time of the

existence of the Negative Declaration

and requested same from EPA,

On June 13 , 1979, petitioner in this

case filed in the U S.District Court in

Newark, N.J-, a verified complaint to

declare invalid and enjoin defendants'

actions in approving and planning to pto=-

ceed with the known projects for PRMUA and

Town of Belvidere, despite no EIS by EPA.

June 27, 1979, petitioner filed notice

of motion for Preliminary Injunction, with

supporting memorandum of law, in United

States District Court;.with affidavit of

service to all parties.

(Case transferred from Newark to Trenton,

New Jersey: Assigned to Judge George Barlow).

August 1, 1979, answer of defendant

O'Hern filed, witn motion for summary judg-

ment, returnable August 2l, 1979.

August 6, 1979, defendant Town of Bel=

videre filed answer.

August 10, 1979, petitioner filed reply

brief to counterclaim;and notice of motion

for consolidation of hearing on preliminar

injunction.

August 13, 1979, federal defendants

filed notice of motion for summary judg-

ment, returnable August 21, 1979.

August 20, 1979, answer of defendant

PRMUA filed; also affidavit of Irene Smith

and Roy Elam filed.

August 21, 1979, prior.to hearing, in

U.S.Federal Building in Trenton, Alias

Summons served to PRMUA; on fifth attempt.

=12<

August 21, 1979, Civil No. 79-1865, Hearing

in U.S.District Court in Trenton;

Judge Clarkson S. Fisher presiding.

August 30, 1979, Opinion with Judgment

and Order handed down; denying plaintiff's

application for injunctive relief and dis-

missing complaint with costs in favor of

defendants Eckardt C. Beck, Douglas Costle,

Daniel )'Hern, PRMUA and Town of Belvidere

against plaintiff Margaret E. Bosco.

September 12, 1979, ~plaintiff became

the appellant in filing Notice of Appeal

to the U.S.Court of Appeals for the Third

Circuit.

October 18, 1979, brief filed in sups

port of appeal, in office of clerk of the

Court of Appeals, Philadelphia, Pa.

December 12, 1979, petitioner,. then

appellant, filed Reply Brief to counter—

claim by appellees.

January 8, 1980, case, No. 79=2300,

submitted on Briefs under Rule 12(6),

before Judges Rosenn, Weis and Garth.

January 18, 1980, Ordered that the

Judgment of the U.S.D.C. be affirmed,

each side bearing their own costs.

The question of the propriety of bring-

ing undue pressure in the form of political

intervention on the decision-making in a

formal administrative process is a sub-

stantial one to be treated by this Court.

-1l3<

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW DECIDED AN IMPORT-

ANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE, SETTLED

BY THIS COURT IN THAT THE APPLICAT-

ION OF IT WAS BASED ON THE WRONG

STANDARD OF REVIEW SINCE IT USED THE

RELATIVELY LOW STANDARD OF "ARBITRARY

AND CAPRICIOUS” RATHER THAN THAT OF

"REASONABLENESS".

On page ll, para. 2 of the Order it

states:

"The Court of Appeals for the

‘ Third Circu:.t has not expresses

a clear preference for either

standard of review. It has

raised the issue and declined

to decide it numerous times.

See, e.g., Shiffler, supra,

548 F. 2d 104, n.5; N.A.A.C.P.

v. Medical Center, S584 F. 2d 619,

635 ne 19- L therefore will not

deviate from my prior decision

to apply the arbitrary and cap-

ricious standard to review chal-

lenged agency actions under NEPA.

See also Kleppe, supra, 427 U.S.

at 412; Citizens to Preserve

Overton Park v. Volpe, 4Ol U.S.

402 (1971); Duquesne Light Co.

ve EPA, 522 F. 2d 1186, 1192-93

(3d Cir. 1975). I must there-

fore review the administrative

record upon which EPA based its

decision in order to insure that

there was a sound basis for the

decision and that. it was not

arbitrary and capricious".

ol 4

But if the Third Circuit has not ex-

pressed a clear preference for either

standard of review it certainly seemed to

show a leaning in favor of the “reasonable—

ness" standard in the Buck Hill Falls case

(Concerned Citizens, etc.) , 388 F. Supp.

394 (1975) , vacated in part in 537 F. 2d

29 (1976). At 388 F. Supp. 398 the COurt

states:

"The Court is aware of authority

in the Second Circuit holding

that an agency decision not to

file an environmental impact

statement should be overturned

only if it is arbitrary and cap-

ricious." Hanly v. Kleindienst,

471 F. 2a 823 (aa Cir.1972) ,

cert. denied 412 U.S. 908,

93 S- Ct. 2290, 36 Le. Ed 2d

974 (1972). We think the bet-

ter view is set forth in Judge

Friendly's dissent in that case

and in Wyoming Outdoor Coordin-

ating Council v. Butz, 4&8 F. 2d

1244 (10th Cir.1973) and Minnes-

ota Public Interest Research

Group v. Butz, 498 F. 2d 1314

8th Cir.1974).

At 49 it states:

"The standard to be employed by

the Court in reviewing whether

Plaintiffs can probably show

that Defendants violated the

law in approving the project

without preparing an impact

statement is one of reasonable~

ness, i.e. , were Defendants

-15—

reasonable in concluding that

the Buck Hill Falls Dam and

Impoundment did not require

preparation of an EIS".

Since on review the case was vacated..

in part by the Third Circuit, (537 F. 2d 29

1976), but did not disturb the requirement

that an EIS be prepared, than by implic-

ation it affirmed the standard of review

used which was the higher one of reason-

ableness.

A close inspection of the cases cited

in other circuits in support of the more

lenient"arbitrary and capricious" stand-

ard show, in Sierra Club v. Froehlke, 534

F. 2a 1289 that the Court states at 1305:

‘The standard of review to be

applied here ‘nd in other sim—-

ilar cases is set forth in

Citizens to Preserve Overton

Park v. Volpo, supra, 401 U.S.

at 416, 91 S. Ct. at 824,

The reviewing court must first

determine whether the agency

acted within the scipe of its

authority, and next whether

the decision reached was arb-

itrary, capricious, an abuse

of discretion, or otherwise not

in accordance with law. In mak=

ing the latter determination the

court must decide if the agency

failed to consider all relevant

factors in reaching its decis-—-

ion, or if the decision itself

represented a clear error in

judgment".

(underline added)

aiGe

Adding that:

We have reviewed with care the

evidence submitted and we find

no Clear error in the determin-

ation made",

From the above it would seem to indic-

ate that, although the court stated that

the standard of review to be used includ-

ed “arbitrary and capricious", it actually

made its decision on the basis of a care-

ful review of the evidence submitted and

the finding of "no clear error in the det—

mination made". So, in fact, the court

went further than determining on the sole

basis of “arbitrary and capricious",

In Nucleus of Chicago Home Owners v.

Lynn, 524 F. 2d 225 (7th Cir.1975), it

states at 229:

"As an initial matter, we note

that the parties agree that

HUD's determination that an en-

vironmentl impact statement need

not be filed must stand unless

it is arbitrary, capricious, an.

abuse of discretion or other-

wise not in accordance with law.

First National Bank of Chicago

v. Richardson, 484 F, 2d 1369,

1381 (7th Cir. 1973)".

This case was decided on the basis of

"arbitrary and capricious" standard, but

the facts show that it was "...another

episode in the continuing dispute over

al7e

the location of public housing in the

Chicago Metropolitan area”. From these

facts it's obvious that it represented a

minimum of environmental impact on the

community at large because what differ-

ence would it make except socially or

economically in a big city. This dis-

tinguished it from the instant case.

Also on page 11 in Hanly v. Kleindienst

471 F. 2d 823 (2d Cir.1972) case it was

not unamimous on the question of which

standard to be used with Judge Friendly

making a strong dissent...,, and

This is another case where a public tutiid-

ing was proposed in the lower Manhattan

area of New York City, in place of a build-

irgalready existing and so it would appear

that the environmental impact of the con=-

struction would be minimal as compared to

the sociologic aspect. as was stated in the

suit.

And in the Mid-Shiawassee County Con-

cerned Citizens v. Train, 408 F. Supp.650,

although the court stated at 653:

"In the absence of a specific dir-

ective from this circuit, the

court concludes that the “arbit-

rary or. capricious" standard is

appropriate in this case”,

It also stated at 659:

"Given the record before the EPA,

these findings were hardly arbit-

rary , capricious, or an abuse of

discretion. Indeed, EPA's decis-—

ion to issue a negative declara-

tion appears more than reason-=-

able and there is a reasonable

basis in the record for EPA's key

findings".

So that it was saying in effect that

the “reasonableness” factor was also taken

into consideration.

On page 10 of the Order it states as

follows:

"There is, however, a conflict

among circuits , and even among

the judges of this District, as

to the appropriate standard of

review which I must apply. In

some circuits, EPA, or any other

agency subject to NEPA, is held

to the relatively high standard

of "reasonableness". E.g. Mim-—

esota Public Interest Research

Gro v. Butz, 498 F. 2d 1314

8TH Cir. 1974) (en banc); Texas

Committee on Natural Resources

v. Berglund, 573 F. 2d 201(5th

Circuit 1978); Ci of Davis v.

Coleman, 521 F. 2d 661 (9th Cir.

1975); Wyoming Outdoor Coordin-

ating Council v. Butz, 484 F. 2d

1244 (1loth Cir.1973); Internat-

ional Harvester Co. v. Ruckels-=-

haus , 478 F. 2d 615 (D.C.cir.

1973). Under this standard

plaintiff need only show that

EPA's decision was unreasonable

to prevail in this action.

CunderLine added)

al 9a

Petitioner contends that the more

formidable arguments are to be found in

the cases in favor of the "reasonable"

standard cited above on Pg. 10 of the

Order. The arguments for that standard

are summarized in one of them, Wyoming:.

Outdoors Coordinating Council v. Butz,

484 F. 24244 (10th Cir.1973) at 1249:

"We are persuaded that the gen-

eral reference to discretion ~

in 8 706(2)(A) of the Admin-

istrative Procedure Act, al-

though applicable to some

other reviewable administrat—

ive decisions, see Citizens

to Preserve Overton Park v.

Volpe, 401 U.S. 42, 416,

91 S. Ct. 814, 28 Le Ed 2d

136, does not apply here to

the agency's determination

under NEPA. Under the spec=-

ific terms of NEPA we feel

that the proper standard,

as stated earlier, is whether

the negative determination

was reasonable in the light

of the mandatory require-

ments and high standards

set by the statute so as to

be"in accordance with law'"-—

another ground of review in

8 706 (2)(A) which may be

applied consistently with

the procedural demands of

NEPA."

For the above reasons petitioner

contends that the District Court applied

the wrong standard of review in using the

“arbitrary and capricious" standard.

@20=

2. ASSUMING THAT THE "ARBITRARY AND

CAPRICIOUS" STANDARD OF REVIEW

WAS THE PROPER ONE, THE DECISION

OF THE DISTRICT COURT NOT TO RE-

QUIRE AN EIS WAS ERRONEOUS IN THAT

IT WAS NOT SUPPORTED BY THE EVIDENCE.

The Order of the Court on page 5 states:

"the EPA must also comply with

the provisions of NEPA. NEPA

was passed a decade ago for the

stated purpose of encouraging

a “productive and enjoyable har—

mony between man and his enviro-

ment” and promoting “effort which

will prevent or eliminate damage

to the environment and biosphere

and stimulate the health and wel-

fare of man..." 42 U.S.C. § 4321.

To effect that purpose NEPA com-

mands "all agencies of the Federal

Government to :

(C) include in every recommendation

or report on proposals for legis-

lation and other major Federal act-

ions significantly affecting the qual-

ity of the human environment, a det-

ailed statement by the responsible

official on-——

(4) the environmental impact of

the proposed action,

{fi) any adverse environmental

effects which cannot be avoided

should the proposal be implemen-

ted,

(111) alternatives to the proposed

action,

(4+) the relationship between loc-

al short-term uses of man's envir=-

onment and the maintenance and en—

hancement of long-term productiv=

ity, and

(v) any irreversible and irret-

rievable commitments of resour=

ces which would be involved in the

proposed action should it be implem-

ented",

42 U.S.C. 8 4332 (2)(C).

As to the question of whether the in-

stant case involves a major federal action,

the Opinion states clearly on pg. 16:

"I agree with plaintiff and must con=-

clude that these projects do con=-

stitute major federal actions".

On pg- 17, stating:

Plaintiff's complaint comes closer

to the mark when she points to the

contradictory statements contained

in the EIA with regard to odors

produced by the treatment plant

and their impact on Belvidere's

residents. At. page 3 the EIA

admits that odors will be produced

at the treatment facility, but

concludes that "(s)ince there are

no communities near the plant site

the adverse effect of odors on

residents in (sic) non-existent".

At page 4, however, the EIA states

that the (n)oise produced by the

sewage treatment plant will affet

residential areas to some extent

because of the location of homes

in the immediate area”. And, fin-

ally, at page S the EIAagain ref-

ers to odors, this time conclud-

ing that "(a)s there are houses

adjacent to the treatment plant

site (odors) may be a problem in

the absence of screening veget-

ation to reduce the wind velocity

at the plant site".

-22-

“Needless to say, this is an

indication of sloppy draftsman—

ship”.

Petitioner respectfully disagrees with

the conclusion of the Court below in char-

acterizing the contradictions made by the

agency concerning major environmental im—-

pacts to the adjacent residents as ‘sloppy

draftsmanship'. It is petitioner's con-

tention that the question raised by the

admitted contradiction is one of fact and

not of writing. Are there residents in the

area who will be affected by the cdors and

noise-——-or not? Any conclusion by the agency

that they are not there when they are— is

clearly arbitrary and capricious.

(underline added)

Petitioner respectfully contends that

the decision of the Court below condones

non-compliance with the mandate in NEPA as

intended by Congress, See opinion (and ord=

er) page 5:

“the EPA must comply with the prov—

isions of NEPA...promoting “ef-

forts which will prevent or elin-

inate damage to the environment

and biosphere and stimulate the

health and welfare of man.....

42 U.S.c. § 4321...".

and by this contradiction of the meaning

of NEPA allows for creating damage to the

environment as a prerogative of discret-

ionary decision-making.

-23-<

3. THE COURT BELOW "IMPROPERLY"

SANCTIONED THE SIGNIFICANT RELEVANT

FACTORS OF CONFLICT-OF-INTERESTS OF

SPECIAL FEDERAL GOVERNMENT EMPLOYEE

AND SEVERAL INDIVIDUALS AT ALL LEVELS

OF THE APPLICATION PROCESS.

U.S.C. Title 18 § 201 under Exec. Order

No 11222, May 8, 1965, 30 F.R. 6469, at

STANDARDS OF ETHICAL CONDUCT FOR GOVERNMENT

OFFICERS AND EMPLOYEES, Part I-Policy in

Section 101 states:

Where government is based on the

consent of the governed, every

citizen is entitled to have com-

plete confidence in the integrity o

of his government. Each individ-

ual officer, employee, or adviser

of government must help to earn

and must honor that trust by his

own integrity and conduct in all

official actions”.

In Part II-STANDARDS OF CONDUCT, Sec. 101(c):

"It is the intent of this section

that employees avoid any action,

whether or not specifically pro-

hibited by subsection (a) which

might result in, or create appear-

ance of-—

(3) impeding government effic-

Lency or economy;

(4) losing complete independence

or impartiality of action;

(S) making a government decision

outside official channels; or

(6) affecting adversely the con-

fidence of the public in the

integrity of the Government".

+ es os se + eee cme

-24—

In United States v. Mississippi Valley

Gen. Co., 5 L Ed 2d 268 at § 2., Construct=-

ion and purpose of statute":"consent of

superiors":

"Like other conflict-in-interest

statutes, 18 U.S.C. 434 is

designed to prohibit government

officials from engaging in con-

duct that might be inimical to

the best interests of the gener-

al public:.....The statute:.is

designed to protect the United

States, as a government, from

the mistakes, as well as the

connivance, of its own officers

and agents";

thus recognizing the human frailties of

those in government positions as being

just that, albeit sometimes in a more

vulnerable position than desired. .

Chapter 4 of House Document No. 96-134,

ETHICS MANUAL FOR MEMBERS AND EMPLOYEES

OF THE HOUSE OF REPRESENTATIVES states

on Page 30:

". ~-congressional staffers may

not represent persons in a priv=-

ate capacity before the Govern-

ment or in court concerning a

matter affecting the United

States, but may engage in such

representational activities only

in connection with performing

and fulfilling official congress-

ional duties. In addition to

specific statutory proscriptions,

ethicalstandard and guidelines

-25—

exist concerning the permiss=—

ible scope of such activities

to prevent abuses of office and

to prevent undue or improper

influence or pressure upon ad-—

ministrative process".

Qn page 32 at Prohibited Ex Parte Commun—

ications it states:

"The "Government Sunshine Act"

enacted in 1976 contains a prov=

ision which prohibits in certain

circumstances “ex parte communic

ations" with administrative agen—

cies. Ex parte communications

are oral or written communicat-

ions made without proper notice

to all parties and not on the pub—

lic record, from an interested

person outside of the agency to

a member of the agency, am admin-

istrative judge, or to an employ=

ee involved in the decision-mak-.

ing process..."

(underline added)

It is just this action on the part

of the special federal government employee,

as evidenced in Affidavit of said employee,

that implies that ODER: Upeseure and pol-

itical intervention" on the decision-making

of a formal administrative agency process".

In the Opinion of the Court on page 20:

"At oral argument plaintiff ref-

erred numerous times to alleged

conflicts—of-interests on the

part of an individual who was

both mayor of Belvidere, the

chairperson of the PRMUA, and a

former staff member of former

Congresswoman Helen Meyner.

Although, if proven, there might

be some basis for complaint un-

der state law 40:69A-163...

these allegations have no bear-

ing upon the question which I

am calied upon ta decide, whether

EPA properly concluded that an

EIS was not required",

the Court continues with:

"I recognize that fairly strong

legal arguments can be made for

the application of the reason—

able standard”.

The Record of the Court below at oral

argument will show that petitioner did point

eut appearances of conflict-of-interests

on the part of several individuals assoc-.

iates with the application process of the

PRMUA and town of Belvidere:

(1) Chairperson of the PRMUA, special

federal government employee; ajso

serves as mayor of Belvidere;

(2) Attorney for PRMUA serves concur-

rently as Prosecutor for Warren County

in apparent disregard for Opinion 415,

that appears to discourage this type

of action in order to avoid the appear—.

ance of conflict-of-interest in the

same vein as that proscribed inU.S.C 18

3 201 on page 274 under PartI and Part

II of "Standards of Conduct for Govern

ment Employees and Officers” wherein

it states:

“Where government is based on the

=27=

consent of the governed, every

citizen is entitled to have

complete confidence in the in-

tegrity of his government..."

(3) Former Councilman. resigned from

his elective post to accept position

with PRMUA, after having advocated and

voted for sewage projects.

(4) Chairman of Belvidere Planning

Board (now state employee) was employed

by PRMUA while under suspension as

inspector with Warren County Health

Board.

(5) Engineer serves both PRMUA and town

collection system, though this is a

practise of strong concern to the State

Board of Professional Engineers and

Land Surveyors.

4. THE PATTERN OF "ARM-TWISTING"

INCREASED THE LIKELIHOOD OF PARTIAL—

ITY TQ SUCH AN EXTENT AS TO DEPRIVE

PETITIONER AND OTHER CITIZENS OF THE

RIGHT TO HAVE CONFIDENCE IN THE IN-.

TEGRITY OF GOVERNMENT OFFICIALS AND

AGENCIES AND PRE-DESTINED APPROVAL

OF FEDERAL FUNDING FOR MAJOR FEDERAL

ACTIONS WITHOUT PREPARATION OF AN

“EIS” BY THE EPA.

Petitiomer respectfully believes that

the Judge's failure to "get at the facts"

as they relate to the merits of the case,

defeats the very purpose of judicial re-

view in the due process of law;

and refers to 63 Har. Law Rev.

wherein is stated:

— Chief” had several purposes

in going into the merits of a

case on petition for certiorari

or the jurisdictional statement.

First, He was interested in prev-

enting grave mis-carriages of

justice, and occasionally he

would recommend the grant of

certiorari in a case of no public

importance whatever simply because

the decision below was unjust,

umreasonable, or plainly wrong".

The instant case is of public import—-

ance in thet the EPA, a Government agency,

granted the approval of federal funds for

major federal actions without the prepar-

ation of an EIS in the interest of the

human environment.

Page 16 of the Opinion states in agree-

ments:

"I agree with plaintiff and must

conclude that these projects do

constitute major federal actions".

In United States Supreme Court Digest,

Vol SA, Constitutional Law, Supp. 1979

at 251 and Constitutional Guarantees in

General, U.S.C.A.j Constitutional Amend.14;

E. Stanley v. ILL., 92 S. Ct 1208, 405 U.S

64S, 31 Le Ed 2d S51, U.S. ILL, 1972:

"The Constitution recognizes

higher values than speed and

* Reference to Chief Justice Hughes

(underline added)

. -29=

efficiency; the Bill of Rights

in general, and the due process

clause in particular, were dis-

igned to protect the fragile

values of vulnerable citizenry

from the overbearing concern

for efficiency and efficacy

which may characterize praise—-

worthy government officials no

less, and perhaps more than —

mediocre ones".

It is noted in Sup. Court Practise,

Stern & Gressman, Sth Ed., in Chap.4,

"Factors Motivating the Exercise of Juris=-

diction”, at 4:18, Erroneousness of Decis=-

ions below, on pg. 298, that:

"But on occasion the Court does

accept a case for review for no

apparent reason other than error

in the lower court's decision, and

it does so even though there seems

to be no conflicting decisions,

no novel or impartant principles

of law and no elements of great

public interest at stake. It is

enough that four or more Justices

are so doubtful of the correctness

of the decision below that they

desire further consideration of

the case. They may be motivated

by a feeling that the decision

represents a gross miscarriage of

justice or a subtle errosion of a

statutory or legal principle”.

See, supra, 63 Har. Law Rev. concerning the

"“spveral purposes of Yoing into the merits

of a case”; coupled with and appearing on

the same page at_supra:

=30-

"The Constitution recognizes

higher values than cpeed and

efficiency; the Bill of Rights

in general, and the due process

Clause in particular, were des-

igned to protect the fragile

values of vulnerable citizenry..;

each recognizing that which is addressed in

Davis Administrative Law Text at § 1.02,

'The Place of Administrative Action in

Our Governmental and Legal Systems’

wherein is stated:

"™r. Justice Jackson asserted in

a formal opinion in 1952: "The ;

rise of administrative bodies

probably has been the most sign-

nificant legal trend of the last

century and perhaps more values

today are affected by their dec-

isions than by those of all the

courts, review of administrative

decisions apart";

continuing infra with:

"ir. Justice Frankfurter in 1957

wrote of the Supreme Court's

work:"Review of administrative

action, mainly reflecting enforce-

ment of federal regulatory stat-

utes, constitutes the largest

category of the Court's work,

comprising one-third of the tot-

al cases decided on the merits".

Constitutional Law, including

"cases with constitutional under

tones" was in second place, with

less than one-fourth of the cases

eee ebut the administrative proc-

ess affects nearly every one in

Many ways nearly every day....";

the Justice expressed the effects of

ain

administrative discretionary actions of

the fragile values of vulnerable citizenry.

The correctness of the decision below

raises a substantial question of the pro-

priety of undue pressure and political

intervention in the decision-making of a

formal administrative process.

The refusal of the Third Circuit to

respect the facts that pre-destined EPA

approval of federal funds for major fed-

eral projects in the absence of an EIS

cannot be justified.

CONCLUSION

For these reasons, and because the

questions raised are substantial and need

the exercise of this Court that exists as

a safeguard to "liberty And Justice For All"

as expressed in our Pledge of Allegiance,

and guaranteed in the Constitution and the

Bill of Rights, petitioner has filed for

a writ of certiorari to review the judgment

and opinion of the Court below.

gaan rues

neaien E. Bosco

167/ Washington Street

Belvidere, New Jersey 07823

Petitioner pro se

Dated:

April ll, 1980 .

a32e

In The

SUPREME COURT OF THE UNITED STATES

October Term 1979

No.

AFFIDAVIT OF SERVICE

MARGARET E. BOSCO

Petitioner,

Ve

ECKARDT C. BECK, Region II Administrator,

U.S.-Environmental Protection Agency,

DOUGLAS COSTLE, as Administrator, U.S.En=-

vironmental Protection Agency,

JERRY ENGLISH, Commissioner, N.J. Department

of Environmental Protection, PEQUEST RIVER

MUNICIPAL UTILITIES AUTHORITY(WARREN COUNTY)

and TOWN of BELVIDERE,

Respondents.

Margaret E. Bosco, of full age, being

duly sworn according to law upon her oath

deposes and says:

1. I am the Petitioner in the above—

entitled case.

2- On the 14 day of April, 1980, three

copies of the Petition for Writ of Certior—

ari were mailed, postage prepaid, to the

Solicitor General, U.S. Department of

Justice, Washington, D.C. 20530; Thomas H.

Pacheco, Esq., Land and Natural Resources

Division, U.S. Department of Justice, Wash=-

ington, D.C. 20530; Dennis J. Krumholz,

-33—

Office of the Attorney General, State of

New Jersey, 36 W. State Street, Trenton,

New Jersey 08625; Louis J. Bizzari,Esq.

Assistant United States Attorney

402. E. State Street, Trenton, New Jersey

08605; I further certify that three

copies of the same were delivered to the

offices of James A. Tirrell, Esq., Cor=

liss Avenue and Warren Street, Phillips-

burg, New Jersey 08865; and William R.

Albrecht, Esq., Schenck, Price, Smith

and King, 416 Front Street, Belvidere,

New Jersey 07823.

Age Chia.

t E. Bosco

187 igfet E- Bos Street

Belvidere, New Jersey 07823

Petitioner pro se

Sworn and subscribed to

before me, this /;#

day of Zs, 1979

Qe 4. bar

NOTARY PUBLIC OF NEW JERSEY

ee Expires Oct. 8, 153}

34—

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79=2300

MARGARET E. BOSCO

Appellant

Ve

ECKARDT C. BECK,.as Region II Adminis-

trator, U.S.~ENVIRONMENTAL PROTECTION

AGENCY, DOUGLAS COSTLE, as Administrator,

U.S-ENVIRONMENTAL PROTECTION AGENCY,

DANIEL O'HERN, Commissioner, N.J.DEPART=

MENT ENVIRONMENTAL PROTECTION, PEQUEST

RIVER MUNICIPAL UTILITIES AUTHORITY

(Warren County), and TOWN OF BELVIDERE

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY

D.C. Civil No. 79-1865

Submitted Under Rule 12(6) January 8,1980

Before: ROSENN, WEIS, and GARTH, CIRCUIT

JUDGES

JUDGMENT ORDER

After consideration of all conten-

tions raised by appellant, it is,

ADJUDGED and ORDERED that the judgment

of the district court be and is hereby

affirmed.

Each side to bear their own costs.

BY THE COURT

MAX ROSENN

Dated: Jan 18, 1980 Circuit Judge

=35=

APPENDIX B

UNITED STATES DISTRICT CCURT

DISTRICT OF NEW JERSEY

Civil Action No. 79-1865

Judge Clarkson S. Fisher

MARGARET E.j BOSCO,Plaintiff

Ve

ECKARDT C. BECK,Region II Administrator,

U.S.ENVIRONMENTAL PROTECTION AGENCY,

DOUGLAS COSTLE COSTLE,Administrator,

U.S-ENVIRONMENTAL PROTECTIONAGENCY,

JERRY ENGLISH, Commissioner, N.J.DEP—

ARTMENT OF ENVIRONMENTAL PROTECTION,

PEQUEST RIVER MUNICIPAL UTILITIES AUTH-

ORITY(WARREN COUNTY) and TOWN OF BELVIDERE

; Defendants.

ORDER AND JUDGMENT FILED August 30, 1979

This action having been tried to the

Court without a jury, the trial on the

merits having been advanced and consoli-

dated with the hearing on plaintiff's app-

lication for preliminary injunctive relief

with the consent of the parties under

Fed.R.Civ.P.65(a)(2); and

The Court having reviewed the adminis-

trative record, all testimony and other ev—

idence together with the briefs and oral

argument of counsel; and

The Court having decided for the reasons

set ferth in its opinion of August 30,1979

that the plaintiff's causes for injunctive

-36—

relief under the National Environmental

Policy Act of 1969, 42 U.S.C. § 4321,et

seqe, should be denied;

IT IS, this 30th day of August, 1979,

hereby ORDERED:

(1) That plaintiff's application

for injunctive relief is

denied and her complaint

dismissed; and

(2) All other motions presently

pending before the Court

are denied.

Clarkson S. Fisher

Chief Judge

NOT TO BE PUBLISHED

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARGARET E. BOSCO :Civil Action

. Plaintiff ,No.79-1865

ECKARDT C. BECK, Region II

Administrator, U.S.ENVIRON=-

MENTAL PROTECTION AGENCY; : OPINION

DOUGLAS COSTLE,Administrat-

or,U.S~ENVIRONMENTAL PROT= : FILED

ECTION AGENCYJERRY ENGLISH, August 30,1979

Commissioner, N.J.DEPART-= $

MENT OF ENVIRONMENTAL PROTECT

ION;PEQUEST RIVER MUNICIPAL :

UTILITIES( WARREN COUNTY) and

TOWN OF BELVIDERE, $

Defendants.

CLARKSON S.. FISHER,Chief Judge

Appearances:

Margaret E. Bosco

167R Washington Street

Belvidere, New Jersey 07823

Plaintiff pro se

Louis J. Bizzari,Esq.

Assistant United States Attorney

Federal Building

402 East State Street

Trenton, New Jersey, 08605

(Attorney for Defendants

Costle and Beck)

Dennis J. Krumholz,£Esqa.

Deputy Attorney General

State of New Jersey

36 West State Street

Trenton, New Jersey 08625

(Attorney for Defendant English)

-38—

Appearances: cont'd

James A. Tirrell,Esq.

Corliss & Warren Street

Phillipsburg, New Jersey 08865

William R. Albrecht,Esq.

Schenck, Price, Smith & King

P.O.Box #133

Belvidere, New Jersey 07823

Plaintiff Margaret E. Bosco brings

this attiori under the National Environ-

mental Policy Act of 1969(hereinafter

NEPA") ,42U.S.C. $4321 et seq., seeking

injunctive relief restraining the def

endants from proceeding with plans to

build sewerage collection and treatment

facilities in and around Belvidere, New

Jersey, until an Environmental Impact

Statement(hereinafter "EIS") had been

prepared. Plaintiff contends that an

EIS is required by NEPA § 102(2)(C),

42 U.S.C.3 4332(2)(C), because the con-

struction of the sewerage facilities

would be a major federal action sign—

ificantly affecting the quality of the

human environment.

lL. BACKGROUND

The Parties: Plaintiff Margaret E.

Bosco is a resident of the Town of Bel=

videre and the owner of property within

the area to be served by the proposed

-39—

sewerage projects. Plaintiff claims a

direct and adverse effect upon her per=-

sonal 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 Eckardt C. Beck is the

Regional Administrator of Region II of

the Environmental Protection Agency.

Douglas M.-€dstle is the National Admin—-

istrator of EPA. Beck and Costle are

collectively referred to as the federal

defendants. Jerry English is the Comm

issioner 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.

(end of pg.2 of the Opinion)

beg.P8--3-

New Jersey. It is the agency designated

to administer the actual planning, design,

construction and operation of these proj-—-

ects. The PRMUA was formerly known as

the as the Warren County—-Pequest River

Sewerage Authority. The final defendant,

aliG=

the Town of Belvidere, is the local mun-

icipality which will be served by the

sewerage treatment and collection sys-

tem. Each of the defendants has app-=

eared and retained separate counsel.

Tite Projects: The projects which

plaintiff seeks to halt were developed

jointly by the PRMUA, DEP and Town of

Beividere and are to be 75% funded by

the federal government. New Jersey is

to fund 8% of the projects and the re-

mainder is to be borrowed. The first

project is the construction of a waste-

water treatment plant in White Township,

to be maintained by the PRMUA. The PRMUA

applied for federal financial assistance

on November 5S, 1977. The application

was approved and Grant No. C-34—454-02

in the amount of $2,851,252.00 was award—

ed..on September 29, 1978, The second

project is the construction of a waste=-

water collection system in the Town of

Belvidere which will transfer Belvidere

sewerage to the PRMUA treatment facility.

The application for funds to build the

collection system was filed by the Town

of Belvidere on September 19, 1977, and

on September 29, 1978, the EPA approved

Grant Now C-34—-513-01 in the amount of

$1,804,435.00. .

atiea

The Proceedings in this Court:

August 21, 1979, was the return date of

plaintiff’s application for a prelimin-

ary 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 fed-

eral defendants and the DEP. In addit-

ion, 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 (end pg-3)

(beg.pg.4)

opinion therefore finally resolves this

controversy and constitutes my conclus=-

ions of law and findings of fact.

Fed.R.Civ.P.52.

II. THE STATUTORY FRAMEWORK

The Federal Water Pollution Control

Act (hereinafter referred the "Clean

Water Act"), 33 U.S.C. $ 1252 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 fac-

ilities. Under that grant program,

-42-

EPA is authorized to make grants to any

state, municipal, inter-state or. inter-

municipal agency for the planning, des-

ign and construction of waste-water treat-

ment facilities and waste-water collect-

ion systems. Clean Water Act #$8201(g),

212(a), 33 U.S.c. 88 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

8 202, 33 U.S.C. § 1282.

EPA's decision to fund the proposed

construction of sewerage treatment fac-

ilities is accomplished in three dis-

tinct steps. Each step involves a sep=

arate 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 stud-

ies and other preliminary planning mat-

ters. At tis stage primary attention

is paid to the selection of the best

location for the treatment facility. The

grantee is also charged with the duty of

preliminary examining the environmental

impact of the proposed facilities. The

grantee (end pg. 4)

=43<

(beg. pg. 5)

should prepare a facilities plan devel-

oped in accordance with 40 C.F.R.35.917=1l,

which is then submitted to EPA for approv-

al.

If the EPA approves the facilities

plan, a Step 2 grant may be awarded to

fund the preparation of construction draw-

ings anc 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 I and 2.

40 C.F.R. $8 35.930-1(a).

Grant funds are allocated among the

states in accord with a formula specif-

ied by Congress. Clean Water Act 3 205,

33 U.S.C. § 1285. The state is primar-

ily 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 deter-

mined by the state in accordance with a

priority system developed by the state

andk approved by the EPA. 40 C.F.R.

§ 35.912. DEP is the state agency res=-

ponsible for performing this function.

Although the state plays an important

ata

role in determining the priority of

wastewater treatment projects and in

reviewing project applications, waste-

water treatment projects are primarily

planned and carried out at the local

level.

In addition to complying with the

requirements of the Clean Water Act,

the EPA must also comply with the prov=-

isions of NEPA.j NEPA was passed a dec=-

ade ago for the stated purpose of en=

couraging a "productive and enjoyable

harmony between man and his environment"

and promoting "efforts which will pre=-

vent or eliminate damage to the envir—-

onment and biosphere and stimulate the

health and welfare of man..." 42U.5.C.

8 4321. To effect that purposeNEPA

commands "all agencies of the Federal

Government" to (end Pg. 5)

(beg. pg. 6)

(C) include in every recommendation

or report on proposals for legis=

lation and other major Federal act-

ions significantly affecting the

quality of the human environment,

a detailed statement by the res=

ponsible cfficial on-——

(i) the environmental impact of

the proposed action,.

(ii) amy adverse environmental

effects which cannot be avoid—

ed should the proposal be im-

plemented,

(iii) alternatives to the prop-

osed 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 irre~

trievable commitments of res-

ources which would be involved

in the proposed action should it

be implemented.

42 U.S.C. § 4332(2)(Cc).

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 anEISs

with respect to the proposed action. It

is with this requirement that plaintiff

contends defendants have not complied.

The obligation to prepare anEIS is

imposed upon all Federal Agencies.

Rather than establish a single body with

authority to promulgate uniform regul=

ations enforcing this obligation, how—

ever, NEPA leaves it to each Federal

Agency to formulate its own regulations

implementing the Act. The EPA has prom-

ulgated such regulations. See 40 C.F.R.

§ 6.100 et seq.

-46-

EPA regulations under NEPA ccntain

both general provisions applicable to

all EPA actions, see 40 C.F.R. $8 6.100-

6.402, and (end pg. 6)

(beg. pg. 7)

additional special provisions govern=

ing 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

@ wastewater treatment works construct-

ion grant is required to submit an envir=

onmental assessment to EPA as part of the

facilities plan developed under a Step l

grant. 40 C.F.R. § 6.512(a). The envir-

ommental assessment must include a des-=

cription of the environmental impacts

of the proposed action, a description of

steps to minimize any adverse environmen-

tal 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 con-

siders 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.

-47<

40 C.F.R.§ 6.202. In order to insure

public participation in the development

of the facilities plan, the EPA regul-

ations require a Step l grantee to hold

at least one public hearing before the

grantee finally adopts the proposed fac-

ilities plan as the plan to submit to

the EPA for approval. 40 C.F.R. § 6.512(b)

It is the responsibility of the EPA,

however, to determine whether an EIS is

required by NEPA. That determination is

made during an environmental review con-

ducted either before approval of the fac-

ilities plan, or, if an approved facilit-

ies plan is not required, before Step 2

and Step 3 grants are awarded. 40 C.F.R.

§ 6.504(a). EPA must study the proposed

action, including a review of the envir-

onmental assessment prepared by the app-

licant, to identify and evaluate the prob-

able environmental consequences of both

the proposed action and any feasible alt-

ernatives. 40 C.F.R. § 6.204. (end pg.7)

From this review, EPA determines whether

significant impacts are anticipated from

the proposed action, whether any feas-

ible alternatives can be adopted or chan-

ges can be made in project design to el=-

iminate significant adverse impacts, and

a48a

whether an EIS or a Negative Declaration

is required. Id.

The criteria for determining whether

an EIS should be prepared are set out in

regulations. 40 C.F.R. 88 6.200, 6.510.

In part, the criteria aid in determining

whether a proposed action will have sign-

ificant environmental effects.40 C.F.R.

§ 6.200(a). The special regulations deal-

ing with wastewater treatment facility

grants set out additional factors to be

considered. 40 C.F.R. 8.510. Addition-

ally, the regulations mandate the prepar-

ation of an EIS when the "environmental

impact" of the proposal "is likely to be

highly controversial". 40 C.F.R. § 6.200(b).

If EPA determines that an EIS is not

required it will issue a Negative Declar-

ation together with an Environmental Im-

pact Appraisal (hereinafter (EIA). The

Negative Declaration is a written announce

ment prepared after EPA's environmental

review stating that EPA has determined

that an EIS is not required for a proposed

project. 40 C.F.R. § 6.102(e). The EIA

should support that decision and should

briefly describe the proposed action and

feasible alternatives, environmental im-

pacts of the proposed action, unavoidable

adverse impacts of the proposed action,

-49—-

the relationship petween short-term uses

of man's environment and the maintenance

and enhancement of long-term productivity,

steps to minimize harm to the environment,

irreversible and irretrievable commitments

of resources to implement the action,

comments and consultations on the proj-

ect, and reasons for concluding that the

proposed action will not have a signific-

ant environmental impact. 40 C.F.R.36.212

(b) (2). (end pg. 8)

(beg. pg. 9)

The Negative Declaration and EIA are

then made available to the public. The

public is given fifteen working days to

comment on the two documents. No admin-

istrative action on the project can be

taken by EPA during the public comment

period. 40 C.F.R. § 6.212. After the

fifteen days have expired, EPA reviews

and considers the public comments rec-

eived and, if significant environmental

issues have not been raised, the grant

award may be made. 40 C.F.R. $ 6.108(c).

In the present controversy, EPA det-

ermined, after its environmental review,

that the construction of the proposed

waste-water treatment facilities would .

-50-

not have a significant impact upon the

environment. A Negative Declaration and

EIA were therefore issued in lieu of an

EIS. Plaintiff challenges EPA's decis-

ion not to issue an EIS, primarily on

the ground that the proposals will have

a significent impact on the environment.

Plaintiff would have the Court overturn

EPA's determination to the contrary, and

require the preparation of an EIS before

the proposed grant is made.

II. THIS COURT'S TASK — THE

APPROPRIATE STANDARD OF

REVIEW

It is important to establish the

exact nature of this Court's responsib-

ility before undertaking an exhaustive

examination of the administrative rec-

ord below and the evidence and argum-

ent presented at the hearing. I must

emphatically state that this Court is

not empowered to question EPA's sub=-

stantive decision to approve these pro-

“jects and to grant funds for their

end pg. 9)

beg.pg.10)

construction. I may not substitute my

own judgment as to the desirability of

these projects for that of EPA E.g. ,

Kleppe v. Sierra Club, 427 U.S. 390,

410 n. 12 (1976).

-5l-

NEPA is a procedural statute. It estab-

lishes procedures which a Federal Agency

must follow when it is considering a

course of action. That procedure is des-

igned to insure that the agency takes a

hard look at the environmental consequen=-

ces of its proposed action. I am to be

concerned not with the actual environment-—

al impact of these projects but only with

whether EPA examined and weighed these

impacts when it decided to proceed with

these projects. It is plaintiff's bur-

den, therefore, to show that EPA did not

give sufficient consideration to these

impacts when it chose not to prepare an

EIS.

There is, however, a conflict among

the circuits, and even among the judges

of this District, as to the appropriate

standard of review which I must apply.

In some circuits, EPA, or any other

agency subject to NEPA, is held to the

relatively high standard of “reasonable-

ness". E.g., Minnesota Public Intersst

Research Group v. Butz, 498 F. 2d 1314

(8th Cir.1974) (en banc); Texas Commit-

tee on Natural Resources v. Berglund,

573 F. 2d 201 (Sth Cir. 1978); City of

Davis v. Coleman, S21 F. 2d661(9th Cir.

1975); Wyoming Outdoor Coordinating

Council v. Butz, 484 F. 2d 1244 (10th Cir.

1973)

ee re me me ee ee ee - - —o-

——- .

-52-

International Harvester Co. v. Ruckelshaus

478 F. 2d 615 (D.C.Cir.1973). Under this

standard plaintiff need only show that

EPA's decision was unreasonable to pre=-

vail in this action, See Concerned Citiz-

ens of Waterford Township,Inc. v. Berg-

lund, Civil No. 77-222 (D.N.J. May 12,1978)

(Gerry, D.J.). In other circuits EPA is

held to the more lenient "arbitrary and

capricious” standard. E.g., Sierra Club

ve Froehlke, 534 F. 2d 1289 (9th Cir.

(end pg. 10)

(beg. pg. 11)

1976); Nucleus of Chicago Home Owners

Association v. Lynn,524 F. 2d225(7th Cir.

1975(; Hanly v. Kleindienst, 471 F 2d

823 (2d Cir. 1972),cert denied, 412 U.S.

908 (1973); Mid-Shiawassee County Con- .

cerned Citizens v. Train, 408 F. Supp.

650 (E.D. Mich. 1976), aff'd mem.,

559 F. 2d4'1220 (dth Cir.1977). Under

this standard plaintiff has the more

adifficalt task of showing that EPA's

decision was arbitrary and capricious.

See Shiffler v. Rumsfield, Civil No.

75-2129 (D.N.J. May4, 1976) (Fisher,D.J.),

aff'd sub nom Shiffler v. Schlesinger ,

548 F. 2d 96 (3d Cir.1977) (without ex-

pressing an opinion on the appropriate

standard of review.)

-53-

The Court of Appeals for the Third

Circuit has not expressed a clear pref-

erence for either standard of review. It

has raised the issue and declined to dec=-

ide it numerous times. See,,e.g.,

Shiffler, supra, 548 F 2d at 104,n.5;

N.A.A.C.P. v. Medical Center, 584 F. 2d 619,

635 n.19. I therefore will not deviate

from my prior decision to apply the ar-

bitrary and capricious standard to review

challenged agency actions under NEPA.

See also Kleppe, supra, 427 U.S. at 412;

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971); Duquesne Light Co.

v. EPA, 522 F. 2d 1186, 1192-93 (3d Cir.

1975). I must therefore review the admin-

istrative record upon which EPA based its

decision and that it was not arbitrary ori

capricious.

III. THE RECORD BELOW

State and local authorities in the

Warren County=Pequest River locale first

began considering the advisability of re-

placing (end pg. 11)

beg. 2

Belvidere's system of individual septic

tank sewerage treatment with centralized

sewerage collection and treatment facilit—

ies in the 1960's. See Town of Belvidere

-54-

Master Plan (McCrosky and Reuter, July

1964); Feasibility Report on Regional

Sewerage Facilities, Warren County, New

Jersey (Elam and Popoff 1968); Adminis-

trative Record, Item (hereinafter "A.R.#")

87 at 3. The PRMUA, with the aid of a

Step 1 grant from EPA, commissioned the

engineering firm of Elam & Popoff, P.A.,

to prepare a facilities plan which would

examine the alternatives and propose the

most apprepriate wastewater treatment fac-

ilities for use in Belvidere's future.

Their report, entitled "Wastewater Facil-

ities Plan for the Pequest River Drainage

Basin, Warren Co." (hereinafter "Plan"),

was issued in September of 1977. See A.R.

#92. This report was submitted to EPA

for approval in conjunction with tHe app-

lication of the PRMUA and the Town of

Belvidere for grant funds to constuct the

sewerage facilities. at issue here.

The Plan proposed by the applicants

was the result of long and careful study.

Prior to the issuance of the final plan,

a draft of the Plan was issued in May of

1976. A.R.#88. In compliance with EPA

regulations. 40 C,F,R, 3 6.512(b), a

public hearing was held after the draft

plan was proposed and before the final

-55-

Plan was adopted and submitted to EPA

for approval. See A.R.# 92, Appendix E.

(Transcript of Publie Hearing, May 27,

1976). In that same month, defendants’

engineers also issued a document entit-

led "Environmental Assessment for the

Proposed Sanitary Sewer Collection Sys-

tem (Belvidere)". A.R.#87. Although

not required by EPA regulations, a pub-=-

lic hearing was also held with respect

to the Environmental Assessment. See A.R.#

#88, (end pg. 12

beg. » 15)

Appendix A. (Transcript of Public Hearing,

August 9, 1976). Additional Project and

Engineer's Reports were prepared to con=

form with New Jersey DEP regulations in

1973 and 1974. Those reports were all

revised and updated in November, 1976.

SeeA.R. ## 89, 90, 91. |

All of these documents were submitted

to EPA as part of the grant application.

I have not set out their contents in de-

tail because EPA may not rely solely upon

them in determining whether a proposal

will have significant environmental ef-

fects. Rather, EPA is charged with the

duty of conducting an independent exam-

ination of the project in order to det-

ermine the significance of the project's

-56<

environmental consequences.

After the grant application was cert—

ified to EPA by DEP, EPA commenced its

environmental review to determine if an

EIS was required. 40 C.F.R. $8 6.104(c),

6.204. The purpose of that review is to

"determine whether significant impacts

are anticipated from the proposed action,

whether any feasible alternatives can be

adopted or changes can be made in project

design to eliminate significant adverse

impacts, and whether an EIS or a Negat-

ive Declaration is required". 40 C.F.R.

$ 6.204.

Based upon its environmental review

of these projects EPA datermined that an

EIS was not required. A Negative Declar-

ation was issued with respect to each pro-

ject. See A.R. #r 32,33. A single EIA

covering both projects was issued setting

forth EPA's analysis and findings. Id.

It is that EIA which is the center of

much of this controversy. It is an elev=

en—page document, with attachments,which

concludes that the construction would have

only a minimal impact by inducement of in-

creased housing primarily around the edge

of the already developed area; that the

unavoidable adverse (end pg. 13)

beg. pg.14)

aSJa

(beg.pg 14) environmental impacts are

primary impacts due to actual construct-

ion, the effects of which are short-

termed and able to be minimized by con-

struction specifications and control

constraints; that land application and

wastewater reuse were not acceptable ‘alt-

ernatives; and that the construction pro-

jects involving surface water discharge

will have a long-term beneficial effect

on the economy by achieving water qual=-

ity standards, improving water quality

so as to increase the aesthetic and re--

creational value of the area, and ex-

panding the area's sewer service while

eliminating the problems caused by exist-=-

ing septic systems. See 40 C.F.R.§6.212

(b) (2).

In accordance with 40 C.F.R. $6.212(a)

the Negative Declaration was not, at the

time of its issuance, EPA's final decis-

ion. Copies of the Negative Declaration

were distributed among the public and

comments were solicited. A fifteen-day

comment period was provided, 40 C.F.R.

$3 6.212(a). Only one comment was rec-

eived during that period. See A.R. # 34.

After the comment period expired, the

decision not to prepare an EIS was fin-

alized, and a determination was made to

to grant the applications and fund the

projects.

The two construction grants were fin-

ally awarded on September 29, 1978. Only

after that time was EPA barraged with num-

erous comments belatedly objecting to the

projects. See A.R. ## 38, 41, 44, 48, 70,

. tag T8— 75, 76, 77, 78, 80, 81, 82, 383, 36.

Although not called for by the regulations,

EPA responded to all of these comments. A

public meeting was also held to respond to

the objections. See A.R. ## 57, 58, 59, 7],

and 94 (Transcript of EPA Public Meeting,

February 15, 1979). The meeting was not

merely between EPA officials and local cit=

izens, butalso in attendance (end pg. 14)

(beg, pg. 15)were numerous representatives

of the state and local agencies involved

in the planning of the projects. That meet-

ing was chaired by Mr. Kenneth Stoller, P.E.

the Chief of the New Jersey Water Programs

Branch of the DEP. Plaintiff was also in

attendance and made known her objections at

that time. A subsequent letter, dated

March 20, 1979, was sent out to those in

attendance. In nineteen pages that letter

sought to address the issues raised at the

meeting. See A.R. # 71. The applicants

thereafter decided to proceed with the pro=-

ject as planned and EPA reaffirmed both its

decision not to prepare an EIS and its

decision to grant funds to build the

facilities.

IV. PLAINTIFF'S OBJECTIONS

TO EPA's DECISION

EPA regulations set forth a long and

detailed list of the general criteria to

be considered when a decision as to the

need for an EIS is to be made. See Ad...

C.F.R. SS 6.200(a),6.510. The regulations

also set out in some detail the proced-

ure by which that determination is to be

made, including the amount of public part-

icipation required. See 40 C.F.R. $8 6.512(b)

6.212(a). Rather than wade through these

regulations one by one to determine whether

EPA has complied with them all, I will foc-

us. upon the specific objecions raised by

Plaintiff's complaint. Although it is dif-

ficult to extract with precison what plaint-

iff's objections are, I believe that they

can accurately be lumped together in four

categories. They are:

(1) EPA's conclusion that these pro=—

jects are not major federal actions

significantly affecting the quality

of the human environment is incorrect;

end » Ae

ith: pg. 16)

2) These projects are controversial

oa

-60-

and require the preparation of an EIS;

(3) The decision making process was

tainted by EPA's failure to consider

‘potential alternatives to these pro-

jects; and

(4) The decision making process was

tainted by the lack of public partic-=-

ipation.

-

A. Major Federal Actions Signific-

antly Affecting the Quality .

of the Human Environment.

This Circuit has adopted a dual stand—

ard in interpreting the requirements of

this phrase. N.A.A.C.P. v. Medical Center

Inc., 584 F. 2d at 625-27. An EIS is

therefore required if an action is both a

major federal action and if it will have

significant environmental consequences.

The two terms do not have identical mean-

ings.

Plaintiff points to the cost to the

federal government of these projects, up-

ward of $4,000,000.00, to bolster her

claim that these projects constitute maj-

or federal actions. See Concerned Citiz-

ens of Buck Hill Falls v. Grant, 388 F.

Supp. 394, 398 (M.D.Pa. 1975), vacated

and remanded in part on other grounds,

537 F. 2d 29 (3d Cir. 1976). None of

the defendants have challenged this con-

tention. I agree with plaintiff and must

aia

conclude that these projects do constit-

ute major federal actions.

Plaintiff also contends that EPA's

conclusion that the projects will not

significantly affect the environment is

not supported by the record. The com-

plaint makes specific references to at

least five impacts which plaintiff al-

leges are significant: (1) reduction in

general level of groundwater recharge;

(2) air pollution (end pg. 16)

beg. pg. 17)

from the operation of the treatment plant;

(3) damage to private property caused by

alignments of the collection system; (4)

damage to trout maintenance streams |

caused by alignments of the collection

system; and (5) damage to acquatic biota

at site of the treatment plant outfall

into the Delaware River.

A review of the administrative record

reveals that none of these impacts es-—-

caped the attention of EPA. In each case

EPA noted the probable existence of the

impact, and then determined that the an-

ticipated impact was insignificant.

The ELA, A.R. ## 32, 33 at page 6,

recognized that there would be reduction

in the general groundwater recharge level.

=622

In a letter distributed subsequent to the

public meeting of February 15, 1979, EPA

stated specifically that:

Based upon calculations using the

basin area of the Pequest River at

Belvidere the amount of recharge

lost due to the projects would be

2006 million gallons per day per

square mile (mgd/sq. ml.). The

total recharge to the basin area

would be 1.3 mgd/sq. ml.. This

value was determined by calculating

the total amount of recharge avail-

able from precipitation and runoff.

As can be seen the amount lost due

to the projects is a negligible

amount. (A.R. Item 71, p. 17).

It was certainly not unreasonable for

EPA to conclude that a groundwater loss

of less than five=-tenths of one per cent

would not be a significant impact upon

the environment.

Plaintiff's complaint comes closer

to the mark when she points to the con-

tradictory statements contained in the EIA

with regard to odors produced by the

treatment plant and their impact on

Belvidere's residents. At page 3 the EIA

admits that odors will be produced at the

treatment facility, but concludes that

"(s)ince end a 22

(beg. pg- 18) there are no communities

near the plant site, the adverse effects

of odors on residents in (sic) non-exist—

-63-

ent". At page 4, however, the EIA states

that the "(n)oise produced by the sewage

treatment plant will affect residential

areas to some extent because of the loc=-

ation of homes in the immediate area".

And, finally, at page S, the EIA again

refers to odors, this time concluding

that "(a)s there are houses adjacent to

the treatment plant site (odors) may be

a problem in the absence of screening

vegetation to reduce win? velocity at

the plant site".

Needless to say, this is an indicat-

ion of sloppy draftsmanship. However,

it points out that the problem of odors

was given serious consideration and proc-

edures were chosen to mitigate any impact.

"C)areful operation and maintenance prac=-

tices and the use of chlorine” will min-

imize odors actually produced." ETA,

supra, at 3. A vegetation screen will be

constructed to reduce the impact upon the

town of odors not eliminated. EPA con=-

cluded that the use of these devices would

reduce the level of this impact to insign-

ificance.

The EIA also noted that the proposed

alignments of the collection system will

have an impact on the environment. The

primary impacts, however, will occur

ee eT ee, . ;

-64—

during construction and will be largely

eliminated when construction is completed.

Numerous techniques have been adopted to

minimize this impact. The construction

easements will be wider than the perman-

ent easements. Vegetation will not be

removed outside of the construction ease=-

ment and the sites will have to be ret-

urned to their original condition after-

ward. Tree tunnelling will be utilized

to prevent the destruction of mature trees

with diameters of twelve inches or more.

See A.R. # 87 at 35-45. (end pg. 18)

beg. - 19)

Even after construction additional

steps have been taken to minimize the

permanent environmental consequences of

the alignment. The manhole covers of

alignments in the flood plain will be

watertight. The alignments have been

placed in positions where gravity, rath-

er than pumping stations, can be used to

maintain the flow of the sewerage. The

net effect of these and other design

features of the Facilities Plan rendered

these impacts in EPA's eyes, at least,

insignificant.

Plaintiff's allegations with regard

to. alignments crossing a certain trout

maintenance stream are also without merit.

-65—

She merely argues that the streams will

be crossed. No mention is made of how

the crossing will affect the environment,

or why such impacts are significant. In

fact, the state defendants are quick to

point out that no evidence has been pres-

ented that the stream is in fact a trout

- maintenance streat.

Finally, plaintiff's reference to the

increased river turbulence at the outfall

from the treatment plant is to no avail.

The EIA notes the increase in turbulence.

The Plan lists the figures upon which

EPA's determination of insignificance is

based.

The Delaware River at Belvidere has an

average flow of 7,817 cubic feet per sec-

ond. The outfall for the treatment plant

will add to that amount an additional .77

cubic feet per second. A.R. # 92 at

IX-37. Once again there is a sound basis

in the record for EPA's conclusion that

this is not a significant impact.

lL. Plaintiff also complained about the

fact that 7% of the easements will trav-

erse private property, thereby preventing

the construction of swimming pools or

buildings with foundations in these areas.

Although certainly significant to the in-

dividual landowners, I do not believe it

unreasonable to conclude that these effects

are not significant as that term is employed

in NEPA (end pg. 19)

(beg. pg 20) —

I have not mentioned other averments

of plaintiff, made either in her verified

complaint, in her brief, or at oral arg-

ument, because they have less merit than

the five discussed above. In each case

an impact has been noted by EPA and EPA

has concluded that the impact is not sign-

ificant. 2/ Their conclusions are based

upon a solid foundation of study and in-

vestigation. On the basis of the record

before me, and the oral argument of all

parties at the hearing, and the testimony

of witnesses on behalf of plaintiff's

case, I am satisfied that the defendants'

acts were neither arbitrary nor capric-=-

ious, nor an abuse of discretion. 3/ The

decision therefore must be upheld.

Be. Matters of Public Controversy

in addition to requiring an EIA for

every major federal action significantly

affecting the quality of the human envir=

onment, EPA also requires the preparat-

ion of an EIS “when the. environmental

impact of a proposed EPA action is likely

to be highly controversial". 40 C.F.R.

$ 6.200(b). Plaintiff invokes this rule

because of the controversial nature of

the project and the great public outery

against it.

-67=<

2. At oral argument plaintiff referred

numerous times to alleged conflicts of

interest on the part of an individual

who was both mayor of Belvidere, the

chairperson of the PRMUA, and a former

staff member of former Congresswoman

Helen Meyner. Although, if proven,

there might be some basis for complaint

under state law because of the activit-

ies of this state official, see, e-g.,

have no bearing upon the question which

I am called upon to decide, whether EPA

properly concluded that an EIS was not

required.

3. Notwithstanding the fact that I be-

lieve the arbitrary and capricious

standard to be the appropriate stand-

ard of review of EPA-NEPA decisions,

see supra at 10-11, I recognize that

fairly strong legal arguments can be

made for the application of the reason-

able standard. I would therefore like

to note that, on the basis of the rec-

ord before me, I would conclude that

EPA, based on the record before it,

reasonably concluded that the impacts

of these projects were not significant.

(end pg. 20)

beg. wm

Plaintiff, however, misreads the

nature of the rule. The rule comes into

play only if the environmental impact of

a project, and not the decision to build

it, is a subject of controversy. E.g.,

Rucker v. Willis,484 F. 2d 158, 162 (

(4th Cir. 1973). In this case, all part-

ies seem to agree about the probable nat-

-68=

ure of the environmental impacts. of the

project. The dispute is over whether

the impacts are significant. Anr.EIS is

therefore not required by 40 C.F.R.

$ 6.200(b).

C. Consideration of Alternatives

Plaintiff's ‘allegations that the dec-

ision was tainted because EPA failed to

consider the alternatives is entirely

without merit. The briefest examination

of the record reveals that it is totally

unsupported by the record. See A.R.#?87,

at 10-12; 29 at Part Vii; 32, 33 at 8-9;

71 at 2—5. More specifically, plaintiff

contends that defendants failed to con=—

sider what she refers to as the "lagoon"

method. Although I cannot pinpoint in

the record at what stage EPA first con-=-

sidered tha lagoon alternative, by the

time the EPA reaffirmed its decision to

make the grant it had clearly addressed

plaintiff's preferred alternative. See

A.R. # 71 at 12. I must therefore re-

ject plaintiff's arguments that EPA

failed to consider appropriate alternat—

ive treatment technologies.

_--- —-< ’

D. Public Participation in the

Decision Making Process.

Plaintiff has repeatedly asserted

that the lack of public participation

in the decision making process renders

the EPA decision void. She has not,

however, set out with any specificity

end . oo

beg. e 22

how it was that the public was excluded

from the decision making process. A

review of the administrative record, See

infra at 12-15, shows that the public was

given the opportunity to participate and

in fact took advantage of that opportun-

ity.

The draft facilities plan was released

in May of 1976. AR. # 87. Im accord with

40 C.F.R. § 6.512(b), the responsible

officials scheduled a public hearing to

consider the draft. The hearing was con=

ducted on May 27, 1976. See A.R. # 92,

App. E (Transcript of Public Meeting,

May 27, 1979). Public Notice of the hear-

ing was given by publication in the "star-

Gazette" on April 22, 1976, and in the

"Belvidere News" on April 21, 1976. In

each case the notice specified the topics

to be discussed and indicated when and

where copies of the draft plan could be

found. See Ex. Fel, F-2 of Appendix

Filed in Support of State Defendant's

Motion For Summary Judgment. Additional

steps were taken by the defendants to

insure adequate public notice, includ-

ing the sending of letters to the town

clerks of all of the involved communit—-

ies, and to community groups indicating

an interest in the matter. See A.R #92,

App. E at 43-47.

A separate town meeting was held with

respect to the Environmental Assessment.

A.R. # 87. That meeting was held on

August 9, 1976. See A.R. # 87, App. A

franscript of Public Hearing of August 9,

1976.).

On September 8, 1978, EPA issued the

Negative Declarations and EIA's on these

projects. Copies were mailed to some

forty individuals. See A.R. # 32,33.

A fifteen-day comment period was estab—

lished pursuant to 49 C.F.R. § 6.212(b).

Although not required by law, EPA sched-

uled a public meeting for February 15,

1979. See (end pg. 22)

(beg. pg. 23) AR. # 94(Transcript of

Public Meeting, February 15, 1979).

That meeting and the outcome of that

meeting have been discussed previously,

see supra, pages 14-15, and I will not

cepeat that discussion here. See

AR. ## 57, 58, 59, 71, 94.

On the basis of this review of the

record I do not detect any grievous

flaws in the proceedings conducted by

the EPA. The public did participate

quite vigorously in the decision making

process. Aside from her general alleg—=

ations, plaintiff has pointed to no spec-

ific defects to which I may direct my

attention. I must therefore conclude

that EPA complied with the obligations

imposed upon it by its own regulations.

Ve. CONCLUSION

Since the trial on the merits of

this action was advanced and consolid-

ated with the hearing on the application

for a preliminary injunction, Fed.R.Civ.P.

65(a)(2), I must determine whether plain-

tiff has demonstrated her entitlement to

the entry of a permanent injunction.

. Rather, than look to whether plaintiff has

demonstrated a reasonable probability that

she will succeed on the merits, see

Doe v. Colautti, 592 F. 2d 705(3d Cir.,1979)

72

.I must determine whether in fact and law

plaintiff has succeeded on the merits of

this action. As can be seen from my

review of the arguments of plaintiff

and the evidence adduced in her behalf,

I am satisfied that plaintiff has been

unable to sustain her burden of showing

that EPA's decision not to prepare an

EIS for these projects was arbitrary or

capricious. See also Mid-Shiawasee

County Concerned Citizens v. Train,

end . 2a

(beg. pg. 24) 408 F. Supp. 650 (E.D.Mich.

1976), aff'd mem. 559 F. 2d 1220 (6th Cir.

1977); Pokorny v. Costle, 464 F. Supp.

1273 (D.Neb.1979); Conc »>rned Citizens of

Waterford Township, Inc. v. Berglund, Civil

No. 77-2220 (D.N.J. May 13, 1978).

Plaintiff's application for injunc-

tive relief. is therefore denied, her

complaint dismissed, and judgment will be

entered in favor of all defendants. [LI

therefore need not address the numerous

other issues raised at the hearing, and

all other motions are denied. Judgment

shall be entered in accord with this

opinion.

.

APPENDIX ¢

SCHENCK, PRICE, SMITH & KING

416 Front Street

P.O.Box 133

Belvidere, New Jersey 07823

(201}475=3333

Attorneys._for the Defendant

Town of Belvidere

MARGARET E. BOSCO

Plaintiff

Ve

ECKARDT C. BECK, as RegionILI

Administrator, U.S~ENVIRONMENTAL

PROTECTION AGENCY,DOUGLAS COSTLE,

Administrator, U.S.~ENVIRONMENTAL

PROTECTION AGENCY, DANIAL O'HEARN,

Commissioner N.J. DEPARTMENT OF

ENVIRONMENTAL PROTECTION,PEQUEST

RIVER MUNICIPAL UTILITIES AUTHOR-

ITY(WARREN COUNTY), and TOWN OF

BELVIDERE

Defendants

United States District Court For the

District of New Jersey

Civil Action No. 79-1865

AFFIDAVIT

STATE OF NEW JERSEY )

COUNTY OF WARREN ) SS

IRENE M. SMITH, of full age, being

duly sworn upon her oath, according to

law deposes and says:

I. I reside at 628 Third Street in

the Town of Belvidere, New Jersey.

2- I have been a life-long resident

of this community.

— eee = ee - i

3. In January, 1974 I was appointed

by then Congresswoman Helen Meyner to

serve as her Staff Aide for Warren County,

New Jersey.

4. In carrying out my duties as Staff

Aide, I established an office in my home

in the town of Belvidere and maintained

a telephone answering service 24 hours

per day. The fact that I was Congress—-

woman Meyner's Staff Aide was a.matter

of public knowledge and the telephone

number was listed in the telephone dir=

ectory.

S. I served as Staff Aide until mid

January, 1979 at which time I completed

my term following Congresswoman Meyner's

defeat in the general election held in

November, 1978.

6. In the summer of 1976 I was asked

if I would serve as a member of PRMUA

and I accepted. On August 2, 1976 I was

appointed by the Board of Chosen Free=-

holders of the County of Warren to serve

as a member of the PRMUA.

% Following my appointment I asked

for and received copies of the minutes

and reports for the prior seven(7) years

PRMUA had been in existence. |

8. I read all of the minutes and

reports of the previous meetings and on

my own initiative visited sewerage plants

and facilities in Newark, Delaware, Mary-

land, Virginia, Cleveland, Ohio, Wood=

bridge-Raritan, New Jersey and Flemington,

New Jersey. Additionally, I conferred

with officials and representatives of the

facilities and the government who were

familiar with the installations to obtain

in-depth information concerning the prob—

lems associated with sewerage treatment

and related matters.

9. Upon my assumption of the position

of a member of the PRMUA I endeavored to

determine why the project sould not get

6ff “"dead-center".

10. In an effort to have the several

government agencies who had the respon-

sibility to determine whether or not the

project was feasible and necessary, make

a decision, be it for or against the pro-

ject, I contacted many elected government

officials.

ll. In the fall of 1976, I ran for an

unexpired term on the Town Council of the

town of Belvidere and was elected.

12. At the annual meeting of the PRMUA

in January, 1977, I was elected Chairper-

son of the PRMUA.

13. Im my new capacity as an elected

official of the town of Belvidere and as

the Chairperson of the PRMUA, I continued

to inquire of government officials as to

the status of the project.

14. In December, 1976, I testified at

a public meeting in Trenton, New Jersey

before the State Department of Environ-

mental Protection advocating the approval

of the sewer project.

1S. In March, 1977, I contacted Douglas

Herbst of the United States Environmental

Protection Agency and requested that he

come to Belvidere, New Jersey and person=

ally inspect the area. A meeting was held

at the County Court House, Belvidere, New

Jersey and the communities of Belvidere

and Oxford, New Jersey were toured. The

proposed site was the same then as it is

now and has always been the same.

16. In May of 1977 when no action had

been taken by the Governmental Agencies

concerning this project, I again contacted

Douglas Herbdst and he again inspected the

area and in particular the area behind

the Blair Apartments is Belvidere, New

Jersey.

17. In July, 1977 when no official

action had been taken by either the

U.S. Government or the State of New

Jersey, I hand delivered a letter to

Henry Luther, Esq. , Chief of Staff of

Governor Brendan Byrne and requested the

Governor and his Commissioner of Departe

ment of Environmental Protection, David

Bardin to get the program off "dead center",

18. Im August, 1977 I_took a similar

letter to the Honorable Walter Mondal

Vice President of the United States o

America requesting the Environmental Pro-

tection Agency to make a decision be it

"ves" or "no" but to make a decision.

19. When Congresswoman Meyner was

still in office, I went to her office in

Morristown, New Jersey and briefed her

Aide on the details of the project.

20. In the fall of 1977 I was elected

Mayor of the town of Belvidere and upon

assuming the duties of that office in

January, 1978, I continued to appeal to

the Federal and State Officials to make a

"decision".

21. In February, 1978 I was re-elected

Chairperson of the PRMUA.

22. In October, 1978, I received word

that a decision had at last been made to

approve:the project and the Town of Belvid-

ere was to receive a grant for the con-

struction of its treatment plant and for

the construction of the collection system.

23. At all times when I contacted gov-

ernment officials, elected or appointed,

Federal and State, I always asked that they

make a decision. While I was in favor of

the project I was more concerned that a

“decision” be mede as contrasted to what

it would be. The action I took was prop-

er, responsible and necessary in my cap-=-

acity as an elected official of the Town

of Belvidere and Chairperson of the PRMUA.

24. In the Memorandum of Law filed by

the Plaintiff, Margaret Bosco in this

cause in support of her Motion for Injunc-

tive Relief, the following statement is

made:

The occasion of "conflict of inter-

est" is strongly suggested by fin-

ancial sponsorship of the Irene

Smith Radio Program by Underhill

Associates, financial advisors to

both PRMUA and town of Belvidere,

in matters pertaining to Bond An-

ticipation Notes and related finan-

cial matters of the projects. This

benefit in addition to a position

held with the newly developed pro-

gram of the Department of Travel

and Tourism (for the State of New’

Jersey) gives the appearance of a

flagrant violation of EPA regulat~

ions 25.7, Advisory Groups, in

FR final regulations, Part V.

: 25. In the summer of 1978 I was asked

to take over the radio program then being

emceed by Charles Haytaian as he had be-

come a candidate for elected office and

could not continue in that capacity due

to Federal Communications Commission Reg-

ulations.

26. From the summer of 1978 to Nov-

ember 1978, I conducted a talk interview

type program on Radio Station WRNJ in

Hackettstown, New Jersey. I did not rec-

eive any remuneration for that position.

27. In January 1979 I was asked by the

Manager of WRNJ if I would again manage

the talk interview type program on their

station, and I accepted in the Spring of

1979.

28. The Financial Advisor of the PRMUA

and the town of Belvidere in the years

1977, 1978 and 1979 was Underhill Assoc-

lates and the accounts were handled by

Jerome Burke.

29. Mr. Burke upon his hearing I was going

to have a radio program stated to me that

he was interested in advertising it in the

Warren County area and wanted to know if

his company could be a co-sponsor of my

program. I informed him he should contact

the station concerning same.

30. For a period of 13 weeks Underhill

Associates did in fact advertise on my

program and paid WRNJ the total sum of

$325.00 for the advertising time. I, in

accordance with my employment terms with

the radio station, received a remuneration

in the total sum of $130.00 for the 13

weeks Underhill Associates advertised on

the radio program.

31. It should be noted that in addition

to Underhill Associates being one of the

sponsors of my program, the following also

sponsored the program for that 13 week per-=

Lod, Bowers, Schumann & Welsh, Johanna

Farms, Mountain Lake Casino, Lanark Inn,

L'Boutique, County Cousins, North Warren

Farm and Home Supply and New Jersey Lottery

Commission.

32. At no time have I receive any mon-

ey, financial or other benefits as a result

of my services as Chairperson of the PRMUA,

Councilman, Mayor or member of the PRMUA.

Nor did I ever solicit the same or have it

offered to me.

33. Recently I have been employed by

the New Jersey Department of Travel and

Tourism. This is not a newly developed

agency as asserted by the Plaintiff but

has been in existence for many years.

34. I did not receive the position

with Travel and Tourism as a result of

any favor, partronage or reward for my

efforts in having the Belvidere and

Oxford sewer projects approved but rather

because of my wide knowledge of New

Jersey History and Geography as well as my

my genuine interest in seeing the ben—

efits of New Jersey promoted to tourists

from outside the "Garden State".

35. In recent years there have been

numerous cases of septic system problems

and failures developing within the Town

of Belvidere. Because of this long stand—-

ing problem and the efforts undertaken by

the elected officials of the town of Bel-

videre and the PRMUA, the Warren County

Board of Health did not mandate the prob-

lems be corrected as the construction of

the proposed sewerage system would com-

pletely solve and eliminate the problem

Additionally, due to the frequency of the

required cleaning and repairing of septic

systems within the town of Belvidere, the

Warren County Board of Health informed me

that citizens of the town of Belvidere

would not be required to obtain a permit

to have their septic system cleaned or

repaired in as much as the sewer project

had been approved.

36. Senior citizens, contrary to what

the Plaintiff alleges in Paragraph 6g of

her Complaint, will not suffer financial

hardship due to the required sewer hook

up cost of individual residences. [In

seeking to have the sewer..project approv—

ed, the town of Belvidere was successful

in having a grant in the total sum of

$45,000.00 made available to senior

citizens of the town of Belvidere

(S5 years or older) to assist them in

defraying the cost of hook up expenses.

The maximum grant for each senior cit-

izen is $1,500.00.

37. I have known the Plaintiff per-

sonally for many, many years and state

that at no time relavent was any in-

formation concerning the sewer project

in question withheld from the public

in general and Plaintiff in particular.

At all times the town of Belvidere, PRMUA

and the other government agencies have

fully and completely cooperated with the

public in making information available

as to the nature and size of the system.

In fact, additional public meetings

were held when same were not required

by government regulations or laws in

order for all citizens to be apprised

of the project and to request inform-

ation from the representatives respon-

sible for its implementation.

38. This Affidavit is made in opp—

osition to the Motion for Injunctive

Relief that has been filed by the

Plaintiff, Margaret Bosco in this case.

Irene Smith

Dated August 3, 1979.