Goshen Road Environ v. US Dept Agriculture ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GOSHEN ROAD ENVIRONMENTAL
ACTION TEAM, a community
organization; IRIS BROWN; HATTIE
BROWN,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE; RURAL HOUSING AND
COMMUNITY DEVELOPMENT SERVICE;
No. 98-2102
NORTH CAROLINA STATE DIRECTOR,
Rural Housing and Community
Development Service; TOWN OF
POLLOCKSVILLE; UNITED STATES
DEPARTMENT OF AGRICULTURE,
Secretary; RURAL HOUSING AND
COMMUNITY DEVELOPMENT SERVICE,
Administrator,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-95-36-4-H-1)
Argued: March 5, 1999
Decided: April 6, 1999
Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Stephon John Bowens, LAND LOSS PREVENTION
PROJECT, Durham, North Carolina, for Appellants. Claire Lynn
Brock, Trenton, North Carolina; Stephen Aubrey West, Raleigh,
North Carolina, for Appellees. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Barbara D. Kocher, Assistant United States Attorney,
Raleigh, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A local neighborhood group and two residents of the neighborhood
sued the United States Department of Agriculture (USDA), its agen-
cies and officials, as well as the Town of Pollocksville, North Caro-
lina in connection with the Town's siting of a wastewater treatment
facility. The group alleged violations of Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq., and the National Environmen-
tal Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The district
court granted summary judgment to the USDA and the Town on all
claims. We affirm.
I.
The Town of Pollocksville is located in Jones County, North Caro-
lina. In 1985 the Town became concerned because raw sewage was
being pumped directly into nearby Trent River and Mill Creek, and
the septic tanks of its residents were beginning to fail. The Town con-
2
tracted with the engineering firm of Rivers and Associates, Incorpo-
rated to examine options for the construction of a wastewater
treatment facility. Rivers recommended a treatment facility that
would discharge treated effluent into the Trent River.
The Town then applied for and received funding for the facility
from the USDA through the Farmers Home Administration (FmHA).
Pursuant to NEPA, in April 1986 the FmHA conducted an Environ-
mental Assessment (EA) of the proposed project. 40 C.F.R.
§ 1501.4(b). The FmHA concluded that the project would not have a
significant effect on the environment, and therefore a more in-depth
Environmental Impact Statement (EIS) was unnecessary. 40 C.F.R.
§ 1501.4(c). Consequently, it issued a Finding of No Significant
Impact (FONSI). Id. § 1501.4(e).
Prior to the construction of the facility, however, the State of North
Carolina reclassified the Trent River as a nutrient sensitive waterway.
As a result, Rivers decided that additional treatment of the waste
would be required before discharge into the Trent. To avoid the need
for this additional treatment, Rivers recommended that the Town con-
sider land treatment -- a process in which treated effluent is sprayed
onto fields surrounding the facility. In connection with the land treat-
ment, Rivers requested that the Town identify four or five plots of
good agricultural land for a facility.
The Town agreed that a land treatment system was the better of the
two options. If a land treatment system were to malfunction, it would
not release raw sewage directly into the nutrient-sensitive Trent as a
river discharge system would. Moreover, the State of North Carolina
was considering more stringent standards for river discharge systems
in the future.
The Town began searching for possible land application sites. It
rejected siting the facility to the north because that would have
required pumping the waste over the Trent River. Similarly, the Town
decided against looking east since that would have required sending
the waste over Mill Creek, which ultimately empties into the Trent.
Finally, the Town eliminated land to the south because of its notori-
ously poor soil.
3
The Town selected four possible sites to the west for further study.
Two of the sites -- sites one and three -- were owned by white per-
sons while the other two -- sites two and four-- were owned by
African-Americans. Rivers contracted with Law Engineering to per-
form a soils analysis of the four sites. Law Engineering concluded
that two of the sites -- sites two and four -- were preferable because
they had good soil, presented the least potential for public contact,
and provided natural buffers to adjoining land. In its report to the
Town, Rivers recommended site four because its soil was more absor-
bent. Site four required slightly less land than site two, it had existing
road frontage for easier access, and it was farther from the Trent in
the event of a mishap.
The Town selected site four and submitted the new design and
location to the FmHA. In February 1991 the FmHA issued an amend-
ment to its original EA. It determined that "the changes to the pro-
posed project [did] not alter the conclusion" reached in its original
EA, again deciding that a more detailed EIS was not required. The
Town condemned site four, constructed the facility, and began operat-
ing it.
The selection of site four was not popular with the residents of the
area. The site was part of a 500-acre tract known as the Goshen tract.
The tract was settled during the 1870s by freed slaves and has been
owned largely by African-Americans ever since. The Goshen tract
also contained a cemetery dating back to the founding of the Goshen
community which served as the final resting place for many of the
area's past residents.
A neighborhood group, the Goshen Road Environmental Action
Team (GREAT), and two residents of the neighborhood, Hattie
Brown and Iris Brown, brought suit in the United States District Court
for the Eastern District of North Carolina. GREAT alleged that the
USDA, its agencies and officials, and the Town of Pollocksville vio-
lated Title VI and NEPA. GREAT sought a preliminary and perma-
nent injunction of the operation of the facility. The district court
denied the request for a preliminary injunction and this court
affirmed. Goshen Road Environmental Action Team v. USDA, 103
F.3d 117 (4th Cir. 1996) (unpublished table decision). On remand, the
4
district court granted summary judgment to the defendants. GREAT
now appeals.
II.
After careful review and consideration, we affirm the judgment of
the district court substantially for the reasons stated in its thorough
opinion.
A.
Title VI prohibits discrimination on the basis of race in any pro-
gram receiving federal funding. 42 U.S.C. § 2000d. The USDA has
implemented regulations under Title VI that prohibit recipients of fed-
eral funds from locating facilities in such a way as to create a dispa-
rate racial impact. 7 C.F.R. § 1901.202(2)(viii)(A).
GREAT claims that the Town and the USDA did just that by siting
the wastewater treatment facility in a majority African-American
community. The district court found that the Town and the USDA
demonstrated substantial legitimate reasons for the site selection, and
that GREAT failed to demonstrate either the existence of viable alter-
native sites or that the Town's stated reasons for locating the facility
were a pretext for discrimination.1 See Georgia State Conf. of
Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir.
1985) (no violation of Title VI where nondiscriminatory reason
existed for decision and where no viable alternatives could be found).
We agree with the district court. The Town provided substantial
legitimate nondiscriminatory reasons for its site decision. First, it
chose a land application system because river discharge would require
additional treatment, because the results of a malfunction in a land
application system were more benign than those of a river discharge
system, and because the regulatory future of a river discharge system
was uncertain.
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1 The USDA claims that the federal funding entity cannot be sued
under Title VI. Because we hold that the district court was correct in
finding that the defendants did not violate Title VI, we need not reach
this issue.
5
Second, the Town had legitimate reasons for its choice of facility
location. The Town rejected sites to the north and east because those
sites would have required crossing the Trent River and Mill Creek
respectively. Under either option, were the pipe to deteriorate, the
Town risked releasing raw sewage into the Trent. And it rejected pos-
sible sites to the south due to the poor quality of their soil.
As to the western sites, the Town selected site four based on the
legitimate, race-neutral recommendation of its engineers. The engi-
neers narrowed their own list to sites two and four because those sites
provided the least potential for public contact and required smaller
buffers. As between the two sites, the engineers recommended site
four because it required slightly less land due to better soil, its road
frontage provided for easier access, and it was farther from the Trent.
GREAT adduces no scientific evidence of its own supporting its
claim that other equally effective sites existed. Indeed, GREAT sim-
ply offers a river discharge system or the three other land application
sites the Town considered as proof of alternatives. As noted, however,
the Town rejected those very possibilities for legitimate nondiscrimi-
natory reasons.
Finally, GREAT's claim of pretext is unpersuasive. GREAT main-
tains that the Town's reason for rejecting sites to the north and east
-- that untreated waste would have to cross either the Trent River or
Mill Creek -- is pretextual because the choice of site four required
pumping waste across a swamp as well as Goshen Creek. GREAT
produces no evidence, however, that crossing the swamp or Goshen
Creek presented the same risk of polluting the recently reclassified
Trent River. In sum, the Town's siting decision did not violate Title
VI.
B.
NEPA requires that federal agencies prepare an EIS for every
major federal action "significantly affecting the quality of the human
environment." 42 U.S.C. § 4332(2)(C). To determine whether an EIS
is necessary, the agency must prepare an EA. 40 C.F.R. § 1501.4(b)-
(c). "If the agency decides that no [EIS] is required because the pro-
posed action will not have a significant impact, it reports its decision
6
in a [FONSI]." North Carolina v. FAA , 957 F.2d 1125, 1128 (4th Cir.
1992); 40 C.F.R. § 1501.4(e). In reviewing the agency's decision to
issue a FONSI rather than perform an EIS, a court must determine
whether the agency took a "hard look" at the project's effects and
whether the decision was arbitrary or capricious. See Hughes River
Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.
1996).
GREAT argues that the FmHA's amended EA failed to take the
requisite hard look and therefore the FmHA's decision not to perform
an EIS was arbitrary and capricious. First, GREAT maintains that the
amended EA was insufficiently site-specific because it failed to refer-
ence directly the Goshen area when discussing the environmental
effects of the land application facility. GREAT also argues that the
amended EA failed to consider the Goshen area's historical signifi-
cance. We agree with the district court, however, that because the
1986 EA sufficiently covered the Goshen tract, greater specificity in
the amended EA was unnecessary.
In defining the project area, the 1986 EA referenced not only the
Town but its environs. Similarly, the section of the 1986 EA dealing
with the effects on air quality discussed the "Pollocksville area" and
the section of the EA estimating the effect on endangered species cov-
ered all of Jones County. Moreover, the 1986 EA specifically referred
to the State Historic Preservation Officer's finding that "no properties
of architectural, historic or archeological significance" would be
affected by the river discharge site -- a site less than half a mile away
from the Goshen tract.
Second, GREAT argues that the amended EA failed adequately to
consider alternatives. The 1986 EA, however, rejected as infeasible
several alternative methods of treatment and there was no need to
repeat those findings in the amended EA. More importantly, the
amended EA detailed the choice of the land application system over
the river discharge system. Moreover, the amended EA specifically
referenced the process the Town followed in choosing site four for the
land application facility.
Finally, GREAT contends that the amended EA failed to consider
the racially disproportionate burden resulting from the Town's choice
7
of site four. GREAT, however, points us to no provision of NEPA or
its implementing regulations that requires an EA to include a dispa-
rate impact analysis. And even if such an analysis were necessary,
"economic or social effects are not intended by themselves to require
preparation of an [EIS]." 40 C.F.R. § 1508.14.2Consequently, the siting process did not contravene NEPA.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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2 GREAT also contends that the USDA and the Town failed to provide
sufficient notice of the proposed land application project. In matters of
local concern such as this one, notice may be given by publication in a
local newspaper. 40 C.F.R. § 1506.6(b)(3)(iv). The USDA and the Town
published notice in the Sun-Journal -- a newspaper of sufficiently local
circulation to provide the necessary notice.
8