# Petition — Bosco v. Beck > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2274%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 822 ## Text — 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 withrned 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2274%3A1. Public record. Not legal advice.