Montgomery County's treatment needs alone for the next twenty years. There is substantial documentation in EPA's administrative record (see Document Nos. 1, 5, 7, 204, 238, 325, and 327) of the procedures EPA employed in completing its analysis. The Court finds that the Administrator considered all relevant factors and had an adequate basis in the administrative record for his decision to suspend further processing of the grant application on this ground.
Plaintiffs also contend that the Administrator's evaluation of projected sewage treatment needs in Montgomery County was arbitrary and capricious because EPA was required to accept the WSSC's sewage flow projections supporting a 60-mgd Dickerson plant. However, Section 204(a)(5) of the FWPCA, 33 U.S.C. § 1284(a)(5), specifically requires the Administrator to make a determination prior to awarding grant assistance that the size and capacity of the proposed treatment plant relate directly to the needs to be served by the plant. This challenge to the Administrator's decision must fail.
(2) The WSSC's Failure to Comply With EPA's Cost-Effectiveness Regulations
The Administrator's suspension of further processing of the Dickerson grant application was also based on his determination that the grant application did not satisfy the requirements of EPA's cost-effectiveness regulations, found at 40 C.F.R. §§ 35.925 and 35.925-7 and Appendix A, "Cost-Effectiveness Analysis Guidelines." EPA's regulations require that a cost-effective analysis be prepared by the applicant to accompany the grant application. The Administrator found in his decision (p. 5) that the WSSC failed to analyze at least two potential alternatives which appeared to be considerably less expensive than the WSSC's Dickerson proposal. In a separate section of his decision, the Administrator provided suggestions on alternatives to the 60 mgd Dickerson proposal, including a modified version of the Dickerson proposal, a plant at a different location, and several small plants (including land treatment facilities), which should be evaluated in accordance with EPA's Cost Effectiveness Guidelines.
Plaintiffs challenge the Administrator's finding that the WSSC's cost-effectiveness analysis was inadequate and allege that the Administrator's inclusion of the alternative of construction of a treatment plant near the Piscataway sewage treatment plant in Prince George's County, Maryland in his cost-comparison is arbitrary and capricious. Plaintiffs contend that it is not a "feasible alternative" treatment facility within the meaning of Paragraph e of the Cost-Effectiveness Guidelines,
because of political opposition in Prince George's County, Maryland to construction of other sewage treatment plants in the county.
The Administrator concluded in his August 20, 1976 decision that construction of a treatment plant at Piscataway is a "feasible" alternative to the Dickerson plant proposal and that the political opposition of Prince George's County is a "non-monetary factor" which should be accounted for descriptively in the analysis after the cost comparisons are completed in accordance with paragraph f(1) of the Cost-Effectiveness Guidelines:
Non-monetary factors (e.g., social and environmental) shall be accounted for descriptively in the analysis in order to determine their significance and impact.
The Court finds that the Administrator did not act in an arbitrary or capricious manner in finding the WSSC's cost-effectiveness analysis accompanying the Dickerson grant application was incomplete because it did not include, for cost-comparison purposes, feasible alternatives which were less costly than the 60-mgd Dickerson proposal. EPA's regulations do not require that the most cost-effective alternative necessarily be selected, but only that all the feasible alternatives be studied and cost-compared before the applicant chooses a treatment method and site. The complex, technical nature of these grant applications compels the Court to recognize the expertise of the agency entrusted with the responsibility of determining whether a proposed treatment system is cost-effective. The Court will not substitute its judgment for that of the Administrator here.
Plaintiffs further contend that the Administrator is estopped from denying the WSSC's grant application and from requiring inclusion of a Piscataway plant alternative to be included in the cost-effective analysis accompanying the Dickerson grant application. The Court finds plaintiffs' invocation of the doctrine of estoppel here to be without merit. U.S. Immigration Service v. Hibi, 414 U.S. 5, 8, 38 L. Ed. 2d 7, 94 S. Ct. 19 (1973); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 92 L. Ed. 10, 68 S. Ct. 1 (1947).
Assuming, arguendo, that the doctrine of estoppel may properly be applied here against the Administrator, plaintiffs have presented facts which are insufficient to invoke the doctrine. See City of New Haven v. Train, 424 F. Supp. 648, 655 (D. Conn., 1976). Plaintiffs knew from the outset that whether they chose the Dickerson site or another site, they would have to comply with the FWPCA and EPA's grant regulations before EPA could give them a construction grant. The State of Maryland, the WSSC, and the Counties are experienced in governmental functions and know that EPA is bound by the FWPCA and its regulations, just as the plaintiffs are, in the administration of the construction grant program. See Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 92 L. Ed. 10, 68 S. Ct. 1 (1947). In addition, the application of the doctrine of estoppel here is inappropriate because, as soon as new facts became known which affected the Dickerson proposal in October 1975 -- i.e., the lower population projections for Montgomery County, coupled with higher estimates of the required construction costs -- EPA openly re-evaluated the WSSC's 60 mgd Dickerson proposal. Maryland, Montgomery County, and the WSSC participated at every step in the evaluation process. They were never ignorant of the true facts or relied on EPA's conduct to their injury. In sum, the doctrine of estoppel is simply not applicable here.
Finally, plaintiffs allege that the Administrator violated the provisions of the National Environmental Policy Act, 42 U.S.C. § 4332, by not completing an environmental impact statement on the Dickerson grant application before he made his August 20, 1976 decision suspending further processing of the WSSC's grant application. Plaintiffs' assertion is legally groundless. Section 511(c)(1) of the Federal Water Pollution Control Act, 33 U.S.C. § 1371(c)(1), states that only the provision of funds for the construction of treatment works is subject to NEPA:
Except for the provision of Federal financial assistance for the purpose of assisting the construction of publicly owned treatment works as authorized by Section 201 of this Act, . . . no action of the Administrator taken pursuant to this Act shall be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. [Emphasis added.]