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CONCERNED CITIZENS OF BUSHKILL TWP. v. COSTLE

March 1, 1978

CONCERNED CITIZENS OF BUSHKILL TOWNSHIP, et al, Plaintiffs,
v.
DOUGLAS COSTLE, et al, Defendants, and BUSHKILL-LOWER LEHIGH JOINT SEWER AUTHORITY, Defendant-Intervenor. PLAINFIELD TOWNSHIP TAXPAYERS ASSOCIATION, et al, Plaintiffs, v. DOUGLAS COSTLE, et al, Defendants, and BUSHKILL-LOWER LEHIGH JOINT SEWER AUTHORITY, Defendant-Intervenor



The opinion of the court was delivered by: TROUTMAN

These consolidated cases were filed on October 26, 1977, invoking the jurisdiction of this Court under 28 U.S.C., §§ 1331 and 2201, to challenge a sewer grant made in February, 1977, by the Environmental Protection Agency, hereinafter sometimes called EPA, to the Bushkill-Lower Lehigh Joint Sewer Authority, hereinafter sometimes called the Sewer Authority, for the purpose of constructing a system of interceptor sewers in Northampton County, which sewers would discharge into the sewage treatment plant of the City of Easton.

The cases were filed by citizens groups located in Plainfield and Bushkill Townships, portions of which were to be included in the service area of the proposed sewer system.

 A hearing on the plaintiffs' motion for preliminary injunction was scheduled for October 28, 1977. At that time, the Sewer Authority filed a motion to intervene as a defendant, which, after argument, was granted. Certain municipalities within the jurisdiction of the Sewer Authority also applied to intervene. These petitions were denied, but the applicants were granted amicus curiae status. At the same time, the named defendants, the EPA and the Sewer Authority, as intervenor, advised the Court that they did not deem it necessary or useful to immediately proceed with the scheduled hearing on the application for a preliminary injunction; rather, they proposed to the Court that they stipulate to take no further action on the project, and that a final hearing on the application for a permanent injunction be scheduled promptly. The plaintiffs being agreeable, the Court entered an order upon stipulation, and tentatively fixed November 21, 1977, as a trial date.

 On November 21, 1977, the parties appeared before the Court in conference, at which time EPA stated that it was not ready for trial, while the plaintiffs stated that they were. The Sewer Authority requested an early trial listing, representing that its bids would expire in early 1978, whereas EPA requested a deferral till February 1, 1978. The Court set January 3rd, 1978, as the date for trial.

 On December 23, 1977, having requested a conference with the Court, EPA advised the Court that it had tentatively determined to change its position, based on its further review of the project documents. EPA asked that the Court continue the trial, and proposed an investigation of the documents already in hand, which would require about a month, and thereafter anticipated a further study, the duration and nature of which was at that time unknown.

 The plaintiffs agreed to EPA's request. The Sewer Authority opposed it, again asserting that its outstanding bids, which had been extended, would expire, after which, the Authority asserted, it might not be able to proceed with the project.

 Considering that the defendant EPA, whose conduct was at issue, had represented that it could not immediately defend its action, considering the complexity of the matter, and considering the possibility, as suggested by EPA, that it might ultimately concede major portions of the allegations of the complaint, the concession of which the plaintiffs indicated would or may vitiate the need for a present trial of their remaining claims, and perhaps avoid trial completely, the Court granted the motion for a continuance. However, in view of the Authority's representations, the Court directed that EPA further advise the Court of the status of the matter and accordingly set a conference on February 3, 1978, for that purpose.

 At the February 3, 1978 conference, EPA advised the Court that it had determined that its prior approval of the project without an environmental impact statement was or may have been based upon inaccurate and inadequate information, and that it had therefore decided to prepare an environmental impact statement, at least as to certain areas, to hold further project action in abeyance until such a statement could be prepared, with necessary public participation, fully considered, and ultimately filed in final form.

 Because of the constant and unyielding pressures placed upon the Court to forthwith hear and immediately decide the highly controverted issues involved, we are foregoing today the luxury of a carefully written full-blown opinion, and are today deciding the case from the bench.

 The Authority's motion seeks to void the stipulation entered into on October 29, 1977, as to itself and EPA, to supplement its Answer so as to assert a cross-claim or cross-claims against EPA, which cross-claim or cross-claims in principal part would allege the existence of the grant agreement as a contract, and would contend that EPA violated the contract without justification, by failing to continue to grant approvals and expend funds, and to defend this suit in good faith, and based thereon, to require EPA to process its grant "in accordance with the usual and customary practices and procedures," both by way of Mandamus and by way of preliminary and final injunction.

 Initially, the Court believes that the Authority's consent to the stipulation may be properly withdrawn in the light of the state of the record. No claim has been asserted against the Authority, plaintiffs sought no relief against it, and assert no opposition. Since the Authority's consent was premised on the understanding that an early trial would be held, it is equitable that the Authority be released from its obligation and understanding. The Authority is, therefore, free to proceed with the sewer project. The practical issue involved is whether it can obtain EPA funds to help pay for the project, an issue which we shall later discuss.

 However, no such consideration obtains with regard to EPA. Indeed, it in no way seeks relief from its stipulation. Nor is it even clear that the Authority requests that EPA be relieved of its undertakings. No legal authorities are cited by the Sewer Authority to support any action by this Court to deprive plaintiffs of their stipulation with EPA. Accordingly, the stipulation as between EPA and plaintiffs will remain in effect, ...


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