Opposition Brief — Pure Waters, Inc. v. Michigan Department of Natural Resources

a

| 1996

No. 96-56 AUG 12 179

an The | L —_—_—1

Supreme Court of the Wnited States

October Term, 1995

PURE WATERS, INC.

Petitioner,

V.

MICHIGAN DEPARTMENT OF

NATURAL RESOURCES, ROLAND

HARMS, DIRECTOR; OAKLAND

COUNTY DRAIN COMMISSION,

GEORGE W. KUHN, COMMISSIONER:

CHAPTER 20 BIRMINGHAM SEWER

OVERFLOW DRAIN BOARD, GEORGE

W. KUHN, CHAIRMAN; CITY OF

BIRMINGHAM, THOMAS M. MARKUS,

CITY MANAGER

Respondents.

RESPONDENT CITY OF BIRMINGHAM’S BRIEF

IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

BEIER HOWLETT, P.C.

Paul Daniel Christ

Timothy J. Currier

Counsel of Record

200 E. Long Lake Road, Suite 110

Bloomfield Hills, MI 48304-2361

(810) 645-9400

Reardon-Parshall Co. 550 W. Fort St. Detroit MI 48226 (313) 962-0744

QUESTIONS PRESENTED

I.

Whether the Court of Appeals erred in ruling that the FONSI

(finding of no significant impact) based on the Michigan

Department of Natural Resources’ Environmental Assessment

satisfied the procedural requirements of the National

Environmental Policy Act (“NEPA”), 42 U.S.C. $4331 et seq.

II.

Whether the Court of Appeals erred in ruling that Petitioner,

PURE WATERS, INC., failed to present a prima facia case that

the construction of the sewage retention basin is likely to pollute,

impair or destroy the air, water or other natural resources of

Michigan in violation of Michigan Environmental Protection Act

(“MEPA”), MCL §691.1201 et seq.

III.

Whether the Court of Appeals was correct in not considering the

National Pollution Discharge Elimination System (“NPDES”)

permits monitoring of the Rouge River and implementation of

additional controls, if necessary, as an improper segmentation

under NEPA.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........ Srey ee eee

IVE APe, AT CRORES oy. v.ae Ji vkedine sek ne

A. Neteté of Ge CORO ee. BRS

B. Proceedings in the District Court ...............

C. Decision in the District Court ..................

D. Proceedings in the Court of Appeals.............

PETITIONER’S MISSTATEMENTS OF FACT AND

RAY 3B CLES Es a ee es ee ES

A. Petitioner's Question No. 1 is Misleading ........

B. Petitioner's Statement of the Case is Misleading

ONE DINE 5 Fi acs RR

SUMMARY OF ARGUMENT.......................

DORE OS 533. 855 38s tc ees ec

ME OD as oscns Oe

a, SRM TNE Fs soca ce Se aceaee ens

APRS BERING 3. .:nkyeeadsnch eed este eee

I. THE ENVIRONMENTAL ASSESSMENT AND

FONSI SATISFIED THE PROCEDURAL

REQUIREMENTS OF NEPA...................

Il. THE DISTRICT COURT CORRECTLY

DETERMINED THAT MEPA WAS NOT

VIOLATED BECAUSE THE LEVEL OF

IMPAIRMENT WAS NOT MET IN ORDER TO

JUSTIFY JUDICIAL INTERVENTION..........

Ill. THERE WAS NOT AN IMPROPER SEGMEN-

TATION OF THE PROJECT UNDER NEPA ...

CONCLUSION i. inci saiiars deri eee

— OSS GA a

iii

INDEX OF AUTHORITIES

CASES

Catron v U.S. Fish and Wildlife Service, 75

F.3d 1429 (10th Cir. 1996).................

City of Portage v Kalamazoo County Road

Commission, 136 Mich App 276, 281; 355

eae Wee SEO oe, fe Se

Cronin v U.S. Department of Agriculture, 919

F.2d 439, 443 (7th Cir. 1990)...............

Dafter Sanitary Landfill v Department of

Natural Resources, 198 Mich App 499,

503-504; 499 N.W.2d 383 4. Bee

Dickman v City of Santa Fe, 724 F.Supp.

1341, 1345 (D. N.M. 1989) ................

Environmental Defense Fund v Marsh, 651

F'2d 983 (Sth Cir. 1981) ...................

Friends of Fiery Gizard v Farmer's Home

Administration, 61 F.3d 501, 504-505 (6th

(OTS a eae eee mean

Hanly v Kleindienst, 471 F.2d 823 (2nd Cir.

1972), cert denied, 412 U.S. 908: 93 S.Ct.

the ee HOE IS oA ee te ea

Hiram Clark Civic Club, Inc. v Lynn, 476

F.2d 421 (5th Cir. | ERA RS eel eai »

Kent Road Commission v Hunting, 170 Mich

App 222, 233; 428 N.W2d 353 (1988) ......

Michigan United Conservation Clubs v

Anthony, 90 Mich App 99, 105; 280 N.W.2d

So aR ES ee im Soke er ee oe a

Pacific Legal Foundation v Andrus, 657 F.2d

PMA Eh, See se

PAGE(S)

12

10

1]

ll

PAGE(S)

Park County Resource Council, Inc. v U.S.

Department of Agriculture, 817 F.2d 609,

Oe a Se ecw ea ee. 13

Preservation Coalition, Inc. v Pierce, 667 F.2d

Si, Be Cee Cae Pe ic eik vc ceca todpesce> )

Robertson v Methow Valley Citizen’s Council,

490 U.S. 332, 348; 109 S.Ct. 1835 (1989) ... 7

Stryker’s Bay Neighborhood Council, Inc. v

Karlen, 444 U.S. 223, 227: 100 S.Ct. 497,

OD SR = cx esbkcins a rik deen ye ies bikes )

U.S. v South Florida Water Management

District, 847 F.Supp. 1567 (S.D. FL. 1982),

affirmed in part, reversed in part, and

remanded on other grounds, 28 F.3d 1563

(11th Cir. 1994), cert denied US. __,

Dae eh. a PPE ches orek os bn ede cakcéus 10, 11

STATUTES

[Be le) =) Re ” ea erciee eee 9

Oe ieee, SOE Oe OE ok wiv eed eaxeescase l

48 USL. SGiss, 0 206: ss £605 bids £5 ee cies l

AE GEA. Seed tk he chek wed eens 3, 7

OE Ay ete as OE OO Acca cc ccs l

REGULATIONS

40 CORR S1801 Med, te) os avid, as Ses

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STATEMENT OF THE CASE

A. Nature of the Case

Petitioner, PURE WATERS, INC. (“Pure Waters”), is seeking

declaratory and injunctive relief against Respondents, including

the CITY OF BIRMINGHAM (“Birmingham”). Petitioner alleges

that Respondent, MICHIGAN DEPARTMENT OF NATURAL

RESOURCES’ (“MDNR”), issuance of a finding of no significant

impact (“FONSI”) concerning the construction of a combined

sewer overflow retention treatment basin in Linden Park in

Birmingham, Michigan, was a violation of both the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §4331, et seq. and

the Michigan Environmental Policy Act (“MEPA”), MCL

§691.1201, et seq. This claim is made despite MDNR’s detailed

preparation of an environmental assessment (“EA”), Birmingham’s

appointment of a citizen's committee to hold public hearings and

the consideration of several project alternatives, environmental

impacts, benefits and costs.

Birmingham selected, and MDNR approved, a combined sewer

overflow retention treatment basin in Linden Park so that

combined sewer overflow (“CSO”) would be controlled and the

discharge of raw sewage into the Rouge River would be eliminated,

thereby improving the public health and safety!. A national

pollution discharge elimination system (“NPDES”) permit required

Birmingham to control its CSOs. The permit established three (3)

phases for the irradication of the damage to the Rouge River

caused by untreated sewage. The first stage was for Birmingham

' As a result of litigation commenced in the Federal District Court for the

Eastern District of Michigan in 1977 by the Environmental Protection Agency

under the Clean Water Act, 33 U.S.C. §1251 et seq., against the communities

that made up the Rouge River watershed in southeastern Michigan, a consent

judgment was entered where it was resolved that all waste waters flowing into

the Rouge River would be given primary and secondary treatment. This was to

be accomplished in two stages. The first stage was to handle dry water

conditions, including combined sewer overflows and the second stage was to

address what weather conditions, including combined sewer overflows. The first

stage has been completed and the Linden Park combined sewer overflow

retention treatment basin is designed to address combined sewer overflows in

"wet weather* conditions.

bo

to operate, repair and maintain it existing facilities to minimize

discharge; the second stage required that CSOs be controlled to

eliminate the discharge of raw sewage by the year 2005. The third

phase requires that additional controls be applied, if necessary, to

comply with water quality standards at times of discharge. The

combined sewer overflow retention treatment basin in Linden

Park will satisfy phase two of the NPDES permit. Whether any

additional controls will be necessary, is speculative but will be

monitored by Respondents once the project is complete so that all

water quality standards will eventually be met.

Several alternatives for the combined sewer overflow program

were studied, including separated sewers which Petitioner favors,

and after numerous public hearings, Birmingham decided

construction of a combined sewer overflow retention treatment

basin was the most cost effective, least intrusive alternative and

identified Linden Park as the location. As a result of this decision

by Birmingham and MDNR’s completion of its EA and issuance

of its FONSI, bonds for the financing of the project were issued

and sold and construction began in December of 19947.

B. Proceedings in the District Court

On September 13, 1993, Citizens to Put the Issue on the

Ballot, the predecessor to Pure Waters, filed its Notice of Intent

to Sue under the Clean Water Act. Pure Waters waited until

December 6, 1994, after financing was secured and construction

of the Linden Park retention basin had begun, to file its Amended

Complaint for Declaratory and Injunctive Relief against

Respondents (R.2). On December 13, 1994, Pure Waters filed,

and on December 15, 1994, argued, before the Honorable John

Feikens, District Court Judge for the Eastern District of Michigan,

that a temporary restraining order should be issued enjoining

Respondents from proceeding with their construction of the

Linden Park combined sewer overflow retention treatment basin

until the Court could hear Pure Waters’ Motion for Preliminary

? As of July 19 1996, construction of the combined sewer overflow retention

treatment basin is 76% complete. The project's cumulative cost as of July 19,

1996 is $20,244,194.60. June 20, 1996-July 19, 1996 Rouge River National Wet

Weather Demonstration Project Monthly Construction Status Report.

ee

Injunction (R.8). The District Court noted that the construction

of the combined sewer overflow retention treatment basin was in

accordance with an NPDES permit which was issued on

October 19, 1989, revised on August 20, 1992, and that the permit

applied to combined sewer overflow discharges (R.14). The

District Court further noted that the Rouge River in southeastern

Michigan is extremely polluted and that the combined sewer

overflow program was developed to enact the goals of a Rouge

River Remedial Action Plan (“Rouge R.A.P.”), the goal being the

protection of the public health by the elimination of raw sewage

discharges into the Rouge River. The District Court issued a

corrected Opinion and Order denying temporary restraint and

certification on December 23, 1994 (R.19). Pure Waters filed a

Notice of Appeal on December 16, 1994 (R.11).

The Sixth Circuit Court of Appeals dismissed Pure Waters’

appeal, sua sponte, for lack of jurisdiction on January 19, 1995

(R.29). Pure Waters renewed its Motion for Preliminary Injunction

on January 24, 1995 (R.27) and an evidentiary hearing was held

on March 22-24 1995.

C. Decision in the District Court

The District Court found that Birmingham will violate state

and federal laws and be subject to significant penalties if it fails to

comply with its NPDES permit. After listening to the testimony

and reviewing the briefs filed, the District Court held that MDNR

prepared an EA which met all of the requirements of NEPA, 42

U.S.C. §4332(C) and, after providing an opportunity for public

comment, issued a FONSI (R.63, p.13). The District Court held

that this action complied with the procedural mandates of NEPA

(R.63, p.13).

After examining Pure Waters’ MEPA claim, the District Court

held that the construction of the Linden Park combined sewer

overflow retention treatment basin will drastically improve the

quality of the water in the Rouge River and that any “minimal”

adverse affect of the combined sewer overflow retention treatment

basin is greatly outweighed by the obvious benefits of the combined

sewer overflow retention treatment basin (R.63, p.14). The District

Court found no evidence that the Linden Park combined sewer

overflow retention treatment basin will “impair” the environment.

The District Court was persuaded that the Respondents had,

indeed, considered the potential problems with the Linden Park

combined sewer overflow retention treatment basin and concluded

that the Respondents had incorporated into their construction

project protections for the environment to minimize any negative

impacts which might possibly result. The District Court also

noted that the project provided for monitoring of water quality

after construction. The District Court recognized that the Rouge

River did not presently meet water quality standards, and could

not immediately achieve water quality standards irrespective of

what action plan was adopted. The District Court held that Pure

Waters had failed to establish a prima facie case of “impairment”

under MEPA.

D. Proceedings in the Court of Appeals

Petitioner appealed the District Court's April 21, 1995 Opinion

and Order Denying Plaintiff's Request for an Injunction. The

Court of Appeals affirmed the District Court’s findings that

MDNR had complied with the procedural mandates of NEPA

and Petitioner had failed to establish a prima facia case of

“impairment under MEPA”. The Court of Appeals also found that

the District Court's decision to decline to grant Petitioner's

request for an injunction was proper.

PETITIONER’S MISSTATEMENTS OF FACT AND LAW

A. Petitioner’s Question No. | is Misleading

Petitioner's statement of question number 1 is inaccurate and

misleading:

Whether a court may rule, as a matter of law, that a

project’s significant impacts are all beneficial and

therefore, no further NEPA evaluation is required, an

issue in which the courts of appeals are in conflict?

(Petition, p.i)

Petitioner's question suggests that the issue is whether NEPA

evaluation is required if a project's impacts are all beneficial.

However, both the District Court and the Court of Appeals noted

that the purpose behind NEPA is to insure that agencies consider

the environmental impact of their decisions and take a “hard

look” at the environmental effects of a planned project. The

question is, rather, whether the agency's decision after an

environmental assessment, FONSI, and decision to not issue an

environmental impact statement, in a project designed solely to

benefit the environment with no significant adverse effects, is

arbitrary, capricious or an abuse of discretion.

B. Petitioner’s Statement of the Case is Misleading and

Defective

Petitioner states “that from the very beginning, the proposed

project was conceded as inadequate to meet state or federal water

quality requirements.” (Petition, p.4) This is inaccurate. Despite

passing references to the significant pollution currently existing in

the Rouge River watershed system, Petitioner does not want to

acknowledge the pollution when looking at the project selected by

Respondents to deal with combined sewer overflow. This pollution

cannot be ignored. Then Rouge River is not a pristine river. It is

one of the most polluted rivers in the country. Birmingham was

required to address combined sewer overflow discharges. The

Linden Park retention treatment basin corrects this problem and

will be monitored, as provided in Birmingham’s NPDES permit,

so that eventual water quality standards are obtained.

SUMMARY OF ARGUMENT

1. NEPA Issue

NEPA is designed to prevent environmental degradation. It

requires that environmental problems created by a federal project

be considered before the project is undertaken. MDNR’s

environmental assessment and FONSI recognized the possible

environmental concerns of the project and determined that the

benefits to the environment do not warrant the time and expense

of preparing an environmental impact statement. The District

Court and the Court of -Appeals correctly determined that

Respondents had complied with the procedural requirements of

NEPA and that the FONSI was not arbitrary and capricious.

2. MEPA Issue

MEPA provides relief when a plaintiff has made a prima facia

showing that the conduct of the defendant has, or is likely to

pollute, impair or destroy the air, water or other natural resources.

The District Court and Court of Appeals correctly determined

that Respondents’ combined sewer overflow retention treatment

basin would not impair the environment.

3. Segmentation Issue

In reviewing the NPDES permit’s phased approach, the Court

of Appeals was correct in declining to find an improper

segmentation of a project under NEPA.

ARGUMENT

I. THE ENVIRONMENTAL ASSESSMENT

AND FONSI SATISFIED THE

PROCEDURAL REQUIREMENTS OF NEPA

Contrary to Petitioner's suggestion, their real objection is not

NEPAs application but the particular results chosen_ by

Respondents. The Court of Appeals affirmed the District Court's

opinion and order that Respondents had complied with NEPA.

NEPA itself does not mandate particular results, but

simply prescribes the necessary process. If the adverse

environmental effects of the proposed action are

adequately identified and evaluated the agency is not

constrained by NEPA from deciding that other values

outweigh the environmental costs.

Robertson v Methow Valley Citizen’s Council, 490 U.S. 332, 348:

109 S.Ct. 1835 (1989). An agency must determine whether an

EIS is necessary after preparing an environmental assessment and

issue a FONSI if the agency decides not to prepare an EIS. 40

C.F.R. §1501.4(c), (e). MDNR prepared an environmental

assessment that met all requirements of 42 U.S.C. §4332(C) and

issued a FONSI.

In 1989, the Michigan Water Resources Commission issued a

NPDES permit to Birmingham that required the control of its

combined sewer overflows by 1997. The permit established three

phases for the correction of the problem of untreated sewage

flowing into the Rouge River. In the first stage, Birmingham

would operate, repair and maintain its existing facilities to minimize

combined sewer overflow discharges. The second stage required

that combined sewer overflow controls be implemented to

eliminate the discharge of untreated overflows for the protection

of the public health. Stage three required that the combined

sewer overflow controls be evaluated and that further controls, if

necessary, be implemented to meet water quality standards.

Birmingham appointed a citizen’s committed to study

Birmingham's compliance with the NPDES permit. Public hearings

were held, engineers were hired to study several areas of

alternatives and identify economic and environmental impacts of

the various alternatives. After several months of study, Birmingham

identified the Linden Park combined sewer overflow retention

treatment basin as the best method for Birmingham’s compliance

with the NPDES permit*. At the same time, MDNR was studying

the Rouge problem, and reviewing Birmingham’s project proposal.

MDNR concluded that Linden Park combined sewer overflow

retention treatment basin would remove from the Rouge River

over 180 million gallons of untreated raw sewage and prevent all

untreated sewage from entering the Rouge River. (R.61, pg.

79-83.) Against this benefit, MDNR recognized that some treated

CSO might be introduced the Rouge River during severe storm

conditions. This treated combined sewer overflow would receive

primary treatment of skimming, settling and disinfectant prior to

being introduced into the Rouge River. The disinfectant was to be

sodium hypochlorite (a 5% chlorine solution). The annual amount

of disinfectant which may be released into the Rouge River is 860

gallons (R.61, p.192).

In May of 1994, MDNR completed an environmental

assessment of the Birmingham project proposal and, after an

opportunity for public comment, issued its FONSI. The

environmental assessment has been described as a “rough cut, low

budget environmental impact statement.” Cronin v U.S.

Department of Agriculture, 919 F.2d 439, 443 (7th Cir. 1990). The

environmental assessment is an established part of NEPA

environmental review. Hanly v Kleindienst, 471 F.2d 823 (2nd Cir.

1972), cert denied, 412 U.S. 908; 93 S.Ct. 2290 (1973).

In looking at Respondents’ environmental assessment, it is clear

that they took the pollution of the Rouge River very seriously and

spend considerable time and energy studying the impacts, costs,

and benefits of the various proposals. Once an agency has made

a decision subject to NEPA’ procedural requirements, the only

role for a court is to ensure the agency has considered the

~-

* Birmingham’s citizen’s committee originally selected a different method of

utilizing the retention basin technology which MDNR rejected because it was

not cost-effective. Pure Waters’ representatives participated in the citizen's

committee hearings and sewer separation was considered and rejected.

environmental consequences. Strycker’s Bay Neighborhood

Council, Inc. v Karlen, 444 U.S. 223, 227: 100 S.Ct. 497, 500

(1980). As stated in Friends of Fiery Gizzard v Farmers Home

Administration, 61 F.3d 501, 504-505 (6th Cir. 1995), “If the

agency reasonably concludes, on the basis of the environmental

assessment, that the project will have no significant adverse

environmental consequences, the environmental impact statement

is not required.”

The expenditure of funds on a project that clearly improves the

quality of the human environment does not make sense and is not

necessary where an agency reasonably concludes on the basis of

the environmental assessment “that the project will have no

significant adverse environmental consequences”. In this event,

an environmental impact statement is not required. Preservation

Coalition, Inc. v Pierce, 667 F.2d 851, 855 (9th Cir. 1982).

Petitioner's reliance on Catron v U.S. Fish and Wildlife Service,

75 F.3d 1429 (10th Cir. 1996) is misplaced. In that case, the

secretary of the U.S. Fish and Wildlife Service determined that he

was not required to comply with the documentation requirements

of NEPA claiming an exemption existed under the Endangered

Species Act, 16 U.S.C. §1531-44, as a matter of law. Id. at 1432.

The District Court granted Catron County's motion for partial

summary judgment finding that the secretary had failed to comply

with NEPA. Catron is completely different than the present

situation. Here, MDNR acknowledges NEPA’s application and

complied with its requirements.

Petitioner's argument is not strengthened by its reference to

Environmental Defense Fund v Marsh, 651 F.2d 983 (5th Cir.

1981). In that case, an EIS was prepared by the Army Corps of

Engineers for the construction of the Tennessee-Tombigbee

Water Way. Subsequent to the EIS, there were major, significant

substantial design changes, tripling the cost of the project,

increasing the land needed by 50% (35,000 acres), flooding and

waterlogging an additional 55,000 acres and increasing the amount

of ground spoil to be. removed by 9 million cubic yards. It was

10

clear that the changes had a “significant adverse impact” on the

environment. The focus of that case, as opposed to the present

situation, was not on a project designed solely to benefit the

environment.

Interestingly, both Environmental Defense Fund v Marsh, 651

F.2d 983 (5th Cir. 1981) and U.S. v South Florida Water

Management District, 847 F.Supp. 1567 (S.D. FL. 1982), affirmed

in part, reversed in part, and remanded on other grounds, 28 F.3d

1563 (11th Cir. 1994), cert denied __ U.S. _, 115 S.Ct. 1956,

which were referenced by Petitioner rely on Hiram Clark Civic

Club, Inc. v Lynn, 476 F.2d 421 (5th Cir. 1973) which, in dicta,

references the need for an EIS for significant beneficial impacts.

Hiram Clark is outdated, only dicta, and did not focus on the

consequences of requiring an EIS where the only impact was

beneficial. The Sixth Circuit Court of Appeals in Friends of Fiery

Gizzard v Farmers Home Administration, 61 F.3d 501 (6th Cir.

1995), was cognizant of the costs involved in preparing an

environmental impact statement. In that project, the environmental

assessment forecast a purely beneficial impact on the living

environment. The Court of Appeals noted that the purpose of

NEPA was to ensure that the environmental impact of federal

actions was considered. With that in mind, the court of appeals

stated that if the agency reasonably concludes on the basis of the

environmental assessment, “that the project will have no significant

adverse environmental consequences,” an environmental impact

statement is not required. The Court of Appeals noted that in the

years since that 1973 case, there has been “a growing awareness

that routinely requiring such statements would use up resources

better spent in careful study of actions likely to harm the

environment substantially.” Id. at 505, citing River Road Alliance,

Inc. v Corps of Engineers of U.S. Army, 764 F.2d 445, 451 (7th

Cir. 1985).

MDNR conducted a detailed environmental assessment study

of the project and determined that there would be no significant

adverse effects on the environment. The very purpose of the

project is to improve the environment and the record indicates

11

that the project will substantially reduce pollution to the Rouge

River and that there are no significant adverse effects on the

human environment by the combined sewer overflow retention

treatment basin. Noting NEPA‘ original purpose was to promote

preservation and enhancement in the environment, courts have

noted the irony of the use of NEPA as a device to frustrate actions

intended to benefit the environment. U.S. v South Florida Water

Management District, 847 F.Supp. 1567, 1580 (S.D. Fla 1992),

| Affd in part, rev'd in part and remanded on other grounds, 28

F.3d 1563 (11 Cir. 1994), cert. denied, _ U.S. _, 115 S.Ct. 1956,

131 L.Ed.2d; Pacific Legal Foundation v Andrus, 657 F.2d 829

(6th Cir. 1981).

| Il. THE DISTRICT COURT CORRECTLY

| DETERMINED THAT MEPA WAS NOT

VIOLATED BECAUSE THE LEVEL OF

IMPAIRMENT WAS NOT MET IN ORDER

TO JUSTIFY JUDICIAL INTERVENTION

The Michigan Court of Appeals has identified what is necessary

for the plaintiff to establish a prima facia case of a MEPA

violation: (1) whether a natural resource is involved; and (2)

whether the impact of the activity on the environment rises to the

level of impairment. Kent Road Commission v Hunting, 170

Mich App 222, 233; 428 N.W.2d 353 (1988). The District Court,

affirmed by the Court of Appeals, determined that plaintiff's

MEPA claim is without merit. Petitioner claims that the

construction of the Linden Park combined sewer overflow

retention treatment basin will impair the environment. What does

it mean to impair the natural resources of the air or the water? In

Michigan United Conservation Clubs v Anthony, 90 Mich App 99,

105; 280 N.W.2d 883 (1978), the court cited Ray v Mason, 393

Mich 294, 306; 224 N.W.2d 883 (1975) as providing the MEPA

standard of review and defined the word “impair” citing from

Black’s Law Dictionary as follows:

To weaken, to make worse, to lessen, empower, diminish,

or relax, or otherwise effect in an injurious way.

Construction of the Linden Park combined sewer overflow

retention treatment basin will dramatically improve the quality of

a ee eee ee

12

the waters in the Rouge River. From an average of 220 million

gallons per year of combined sewage being dumped into the

Rouge River, the Linden Park combined sewer overflow retention

treatment basin will reduce this number to approximately

43 million gallons per year. Additionally, the portion that still may

be discharged into the Rouge River will be skimmed, settled and

disinfected so that the outflow will be significantly cleaner than

combined sewer outflow currently being discharged. In City of

Portage v Kalamazoo County Road Commission, 136 Mich App

276, 281; 355 N.W.2d 913 (1984), a Michigan Court of Appeals

indicated that “a court is not empowered to enjoin any conduct

which does not rise to the level of an environmental risk prescribed

by MEPA. Citing Committee for Sensible Land Use v Garfield

Township, 124 Mich App 559, 564 (1983).

Dafter Sanitary Landfill v Department of Natural Resources,

198 Mich App 499, 503-504; 499 N.W.2d 383 (1993), set forth the

threshold test for courts to utilize and determine whether the

impact of a proposed action is so significant as to constitute an

environmental risk and require judicial intervention. In applying

the Dafter criteria, it is clear that Petitioner failed to show that the

combined sewage overflow retention treatment basin rises to the

level of impairment contemplated under MEPA. The environ-

mental analysis performed by MDNR identified specific steps that

would minimize environmental impact and the District Court

correctly applied MEPA in determining that Plaintiff had failed to

establish a prima facia case. Petitioner erroneously claims that the

sole purpose of the project was to meet water quality standards.

The federal action and consent judgment entered in the District

Court mandated that Birmingham address the combined sewer

overflow problem in the Rouge River. Birmingham has met that

goal. MEPA was correctly reviewed by the District Court and the

claim was without merit.

Ill. THERE WAS NOT AN IMPROPER SEGMEN-

TATION OF THE PROJECT UNDER NEPA.

_ The NPDES permit issued to Birmingham recognized that

complete and instantaneous elimination of pollution of the Rouge

River was not feasible. Birmingham and MDNR studied several

13

possible alternatives to address combined sewer overflows

evaluating the benefits, costs and impacts of each alternative.

Petitioner claims that the NPDES permit was an improper

segmentation of the project. This is incorrect. A result of the prior

lawsuit and consent judgment of the River Rouge communities,

the focus of the project was to eliminate combined sewer overflow

as opposed to all water quality standards. The concept of

segmentation is to divide a large or cumulative project into

smaller components in order to avoid designating the project a

major federal action. This has been held to be unlawful. Park

County Resource Council, Inc. v U.S. Department of Agriculture,

817 F.2d 609, 622 (10th Cir. 1987). Generally, segmentation is

claimed in highway projects which are artificially divided into

smaller, less significant actions to avoid NEPA’s requirements.

Dickman v City of Santa Fe, 724 F.Supp. 1341, 1345 (D. N.M.

1989).

Petitioner mischaracterizes the purpose of the combined sewer

overflow retention treatment basin. While the attainment of water

quality standards is clearly the goal, the project’s focus is the

elimination of raw sewage discharges into the Rouge River.

Segmentation did not occur in this case. The environmental

assessment noted that the eventual goal was to meet water quality

standards.

Petitioner claims this delay in studying and meeting water

quality standards is unreasonable, unpermissible and equates to

segmentation. Petitioner claims that if Respondents had considered

the possible future costs of meeting water quality standards

(notwithstanding the degree of speculation needed would render

such an exercise essentially meaningless), Birmingham would

have elected separated sewers as the project. Petitioner wants to

focus on the goal of a pristine river and ignore the facts that the

Rouge is one of the most polluted rivers in the nation and that

destruction of thousands of trees, tearing up 80% of the roads,

higher costs and disturbing private property are all legitimate

factors which Respondents looked at, in addition to water quality,

in deciding to construct the combined sewer overflow retention

treatment basin. There was no artificial segmentation in this case.

14

The analysis of the environmental impacts of the project and

study of the alternatives was done with an open mind and without

any preordained decision as to a project plan. Petitioner's claim

that Respondents attempted some type of post-hoc compliance

with NEPA is simply not true. The environmental consequences

of the various projects were considered and a project was selected.

There was no improper segmentation in addressing the goal of

compliance with water quality standards until after a study of how

the combined sewer overflow retention treatment basin had

improved the Rouge River by its elimination of raw sewage

discharges.

CONCLUSION

In conclusion, for the foregoing reasons, Birmingham

respectfully requests that this Petition For a Writ of Certiorari be

denied.

Respectfully submitted,

BEIER HOWLETT, P.C.

By:

Paul Daniel Christ (P45080)

Timothy J. Currier (P28939)

Counsel of Record

Attorneys for Respondent,

City of Birmingham

200 East Long Lake Road, Suite 110

Bloomfield Hills, M1 48304-2361

(810) 645-9400

Dated: August 9, 1996

No. 95-2054

| an The

Supreme Court of the Wnited States

PURE WATERS, INC.

Petitioner,

V.

MICHIGAN DEPARTMENT OF

NATURAL RESOURCES, ROLAND

HARMS, DIRECTOR; OAKLAND

COUNTY DRAIN COMMISSION,

GEORGE W. KUHN, COMMISSIONER;

CHAPTER 20 BIRMINGHAM SEWER

OVERFLOW DRAIN BOARD, GEORGE

W. KUHN, CHAIRMAN; CITY OF

BIRMINGHAM, THOMAS M. MARKUS,

CITY MANAGER

Respondents.

APPENDIX

BEIER HOWLETT, PC.

Paul Daniel Christ

Timothy J. Currier

Counsel of Record

200 E. Long Lake Road, Suite 110

Bloomfield Hills, MI 48304-2361

(810) 645-9400

A-ii

APPENDIX

Table of Contents

Page

Appendix A

Rouge River National Wet Weather Demonstration

Project Monthly Construction Status Report............ la

Appendix B

Excerpt from Detroit Free Press, July 30, 1996 ........ 7a

la

Appendix A

Rouge River National Wet Weather Demonstration Project

Monthly Construction Status Report

2a

ROUGE RIVER NATIONAL WET WEATHER

DEMONSTRATION PROJECT

MONTHLY CONSTRUCTION STATUS REPORT

SUBGRANTEE: Oakland County Drain Commissioner

‘Birmingham CSO Drain

PERIOD OF: June 20, 1996 to July 19, 1996

°*This report is due on the 20th day of the month following the

reporting period.°®

I. FINANCIAL DATA

Cumulative % of Total

Amount $ Budget

A. CONTRACTS)

AMOUNT $26,252,062.00 100.00

B. NET CHANGE BY

WORK ORDERS $ 263,197.47 1.00%

C. CONTRACT(S)

AMOUNT TO

DATE $26,515,259.47 101.00%

D. PROJECT

CUMULATIVE

COST TO DATE $20,244, 194.60 76.35%

E. BALANCE

REMAINING $ 6,266,064.87 23.48%

DATE SUBMITTED: July 19,1996

CONTACT PERSON: Philip Sanzica, P.E.

ADDRESS: One Public Works Drive

Waterford, Michigan 48238

TELEPHONE NUMBER: 810-858-1031

SIGNED: /s/ Philip Sanzica

Subgrantee’s Representative

3a

MONTHLY CONSTRUCTION STATUS REPORT

(Continued)

Birmingham CSO Drain

PERIOD OF: June 20, 1996 to July 19, 1996

I. ACTIVITIES REPORTING

A. ESTIMATED % OF TOTAL CONSTRUCTION

COMPLETED 76.35%

B. BRIEF DESCRIPTION OF TASKS PERFORMED THIS

PERIOD

Contract 1 — Basin construction has attain the following %

complete in the various areas:

Walls - 87% Baffle Beams — 75%

Columns - 84% Precast Concrete —70%

Control Building concrete is about 99%

complete.

Mechanica! piping and duct work installation in

the Contro! Building has stopped due to the

recent flooding. Miscellaneous utility piping is

being installed now.

Electrical work in the Control Building is

concentrating running conduit and installing

panels not affected by the flooding.

Structural backfill is about 80% complete.

Work on outfall structure is about 85% compete.

Influent structure and influent conduits are

about 65% complete.

(continued)

4a

Contract 2 - On June 18, 1996, a 3” to 3.5" rain caused the

Rouge River to reach a flood state resulting in

the RTB and tunnel filling with water. The high

water level at the RTB/Tunnel Chamber was

recorded at elevation 716.7. The twenty-year

and fifty-year flood stage elevations, at that

location, are approximately 716.56 and 717.04,

respectively.

No contract work has taken place this period,

as the contractor has been pumping water,

cleaning the Tunnel and repairing equipment

damaged by the flood. Contract work is

expected to resume in late July.

(continued)

5a

MONTHLY CONSTRUCTION STATUS REPORT

(Continued)

Birmingham CSO Drain

PERIOD OF: June 20, 1996 to July 19, 1996

Il. ACTIVITIES REPORTING

A. ESTIMATED % OF TOTAL CONSTRUCTION

COMPLETED 76.35%

B. BRIEF DESCRIPTION OF TASKS PERFORMED THIS

PERIOD

Contract 3— Kajima working on final restoration and punch

list items.

Final connections to be made after the RTB is

in service.

Contract 4 - The 54” diameter sewer from CS-36 north to

CS-39 located at Willow Lane and Midland

Avenue has been completed. Remaining

mainline work is the 36” diameter sewer

connection between CS-9 and SAN-93 at

Harmon Street and Woodward Avenue.

Pavement replacement and final restoration

work has commenced.

Final connections to be made after the RTB is

in service.

6a

MONTHLY CONSTRUCTION STATUS REPORT

(Continued)

Birmingham CSO Drain

PERIOD OF: June 20, 1996 to July 19, 1996

Ill. ISSUES AND UNANTICIPATED OCCURRENCES

INDENTIFY ISSUES AND UNANTICIPATED

OCCURRENCES DURING THIS PERIOD AND PREVIOUS

PERIODS

A. Current Period - Identify issue or unanticipated occurrences

that either have a positive or negative impact

on the completion of the project.

Contract 2 — On June 18, 1996, a 3” to 3.5” rain caused the

Rouge River to reach a flood state resulting in

the RTB and tunnel filling with water. The high

water level at the RTB/Tunnel Chamber was

recorded at elevation 716.7. The twenty-year

and fifty-year flood stage elevations, at that

location, are approximately 716.56 and 717.04,

respectively.

No contract work has taken place this period,

as the contractor has been pumping water,

cleaning the Tunnel and repairing equipment

damaged by the flood. Contract work is

expected to resume in late July.

B. Previous Period - Briefly describe the resolution of

previously reported issues and

unanticipated occurrences, if applicable.

“None”

Appendix B

Excerpt from Detroit Free Press, July 30, 1996

|

8a

EPA chief praises Rouge River cleanup

BY DAN SHINE

Free Press Staff Writer

The Rouge is looking rosy, but hold off on any fishing or

swimming excursion for now.

The head of the Environmental Protection Agency came to

town Monday to be updated on the cleanup of the Rouge River

and praised the progress made in restoring one of the country’s

most polluted waterways.

“This is something I've wanted to see for a long time,” EPA

Administrator Carol Browner said at Henry Ford's estate on the

University of Michigan-Dearborn campus. “There is widespread

involvement of local governments, neighborhoods and children.

Perhaps we can learn something here to use in other communities.”

Browner was invited to town by U.S. Rep. John Dingell,

D-Dearborn, who assembled environmentalists, educators and

local officials to brief the EPA chief on the cleanup efforts.

Browner also toured a combined sewer overflow retention basin

under construction in Dearborn Heights and met with elementary

and high school students who are studying water samples from

the river.

A big part of the problem, Dingell said, is antiquated water

treatment systems. The EPA, with state, county and local

governments, is building combined sewer overflow basins and

studying ways to keep pollutants from construction sites, yards,

farms and city streets in the 438 square miles that make up the

river’s watershed from washing into the Rouge after heavy rains.

A local citizens group, the Friends of the Rouge, has organized

annual river cleanups, started a student environmental education

program and initiated an “adopt-a-stream” program. And a

Barney-like dinosaur called SnoopAsaurus instructs kids how to

keep their homes and yards “river friendly.”

Jim Graham, executive director of Friends of the Rouge, said

the work will make a dramatic difference in the river's cleanliness.

Ya

“It won't clean up everything but will make it better than it has

been,” he said. “And it’s not just one agency or one group trying

to do it all. We’re making a lot of positive progress.”

Fish population has expanded in the past few years and

canoeing is allowed on parts of the Rouge. But neither Browner

nor Dingell would predict when the river would be safe for fishing

and swimming.

Browner said eliminating the pollution in the river “is not

something done overnight. Remember where we started.”

She said in the past, some communities have not been willing

to combine efforts to clean rivers. That is not the case along the

Rouge, Browner said.

“What I saw today is a community that knows it made the right

decision,” she said. “We know today what it takes to solve this

problem. It takes all of us.”