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LAKE ERIE ALLIANCE FOR THE PROTECTION OF THE COAST

November 23, 1981

LAKE ERIE ALLIANCE FOR the PROTECTION OF the COASTAL CORRIDOR, Downwind Neighbors, George E. Limberty, John McNicol, Local 1330, United Steelworkers of America Local 1397, United Steelworkers of America Local 1462, United Steelworkers of America Tristate Conference of the Impact of Steel on Ohio-Pennsylvania-West Virginia, Concerned Citizens of Conneaut, Earl Weaver, Tom and Mary Meara, Gerald Specht and Chuck Gaukel, Plaintiffs,
v.
U. S. ARMY CORPS OF ENGINEERS Clifford L. Alexander, Jr., Lt. Gen. John W. Morris, Daniel D. Ludwig, George P. Johnson, Paul G. Leuchner, Defendants, and U. S. Steel Corporation, Intervenor



The opinion of the court was delivered by: WEBER

On July 19, 1979, plaintiffs filed a complaint for declaratory and injunctive relief alleging numerous violations of federal laws in connection with the issuance of construction permit No. 77-492-3 granted to United States Steel Corporation (U.S. Steel) by the United States Army Corps of Engineers for the construction of piers in Lake Erie, dredging, the installation of intake and discharge structures into its waters, and diversion of a stream leading into Lake Erie, all in connection with a proposal to construct a steelmill at this site. Plaintiffs are comprised of environmentally concerned organizations, individuals living near the site of the proposed project, unemployed steelworkers and unions affiliated with the United Steelworkers of America. Named defendants include the United States Army Corps of Engineers (the Corps) and five officers of the United States. Jurisdiction is predicated on, inter alia, 28 U.S.C. § 1331(a) and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (hereinafter the APA). U.S.Steel formally intervened on September 10, 1980.

 Background

 On March 2, 1977, at a meeting in Pittsburgh, Pennsylvania, U.S.Steel announced a plan to construct a steelmaking facility on a 2,800 acre site astride the Ohio-Pennsylvania border near Conneaut, Ohio. At the meeting, representatives of U.S.Steel submitted to the Corps an application for a Department of Army Permit authorizing extension of the privately owned East Entrance Pier of Conneaut Harbor, construction of an unloading pier, dredging of an area near the pier, installation of intake and discharge structures in Lake Erie, and diversion and filling of a lower portion of Turkey Creek. At this time U.S.Army Brigadier General Moore designated the Corps, Buffalo, New York District Office, as lead agency for preparation of an EIS for the project.

 The Corps immediately assembled a Technical Team composed of representatives of the Corps, the United States Environmental Protection Agency (U.S. EPA) the State of Ohio, the Commonwealth of Pennsylvania, the United States Fish and Wildlife Service, the Federal Regional Counsel, and the National Marine Fisheries Service, to assist in the identification and evaluation of environmental issues, development of on-site sampling studies, and analysis of environmental data used in the EIS. The team was also to provide technical expertise in the areas of air quality, water quality, land use planning, fish and wildlife resource management, and a variety of other related fields. The Technical Team was to evaluate all data furnished to it by U.S.Steel and advise U.S.Steel and its prime consultant, Arthur D. Little Company (A.D. Little), on the types of information necessary to prepare an EIS. To facilitate communications between the Technical Team, U.S.Steel and A.D. Little, representatives of both private companies were invited to sit on the Technical Team.

 The Corps issued public notice of the proposed project on March 11, 1977 and commenced a program of meetings, workshops, public hearings, environmental studies, and public comment periods, culminating in the filing of the initial environment assessment by U.S.Steel on July 5, 1978. In response to the environment assessment by U.S.Steel and A.D. Little, the Corps conducted environmental studies, retained consultants, held public meetings, symposiums and workshops, evaluated and addressed public comments, and compiled thousands of documents. These efforts resulted in the draft EIS which the Corps filed as a matter of public record on May 23, 1978. Public comments on it were received for four months thereafter.

 The Corps next undertook the production of the final EIS, compiling more studies, holding further public hearings, and receiving additional comments. On April 26, 1979, the Corps submitted the final EIS as a matter of public record. Almost two months later, on June 18, 1979, the Corps issued a construction permit to U.S.Steel. Undergirding the decision of the Corps to issue a permit to U.S.Steel are 42,000 pages of documents, constituting an administrative record more than sixteen feet thick.

 One month later, this action was commenced with the filing of a fifty-five page complaint for declaratory and injunctive relief. An amended complaint, of similar substance and length, was filed on November 23, 1979. The amended complaint is in seven counts, comprised primarily of challenges to the adequacy of the final EIS under the National Environmental Policy Act of 1969, § 2, 42 U.S.C. § 4321, et seq. (NEPA), violations of the Clean Water Act, 33 U.S.C. § 1251, et seq., violations of the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq., the Migratory Bird Act, 16 U.S.C. § 701, et seq., and the APA. Plaintiffs seek a judgment declaring that the EIS on the Lakefront project is inadequate and injunctive relief rescinding permit 77-492-3 until a new EIS is prepared. Plaintiffs also seek injunctive relief rescinding the certification under § 401 of the Clean Water Act.

 Defendants move for summary judgment on the grounds that the Corps' exhaustive two-year preparation of the EIS and concommitant issuance of permit No. 77-492-3 was completely in accordance with the law and in no way arbitrary, capricious or otherwise an abuse of discretion. Plaintiffs responded to defendants motion with a motion for partial summary judgment and objecting to the entry of summary judgment on all other issues.

 Earlier in this litigation while ruling on a discovery motion, the court recognized that its scope of review is limited to the administrative record, unless it appears from the record that inadequate consideration has been given to matters raised. Lake Erie Alliance for the Protection of the Coastal Corridor, et al. v. United States Army Corps of Engineers, et al., 526 F. Supp. 1063 (W.D.Pa.1981).

 The guidelines for our review are more succinctly set forth in Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S. Ct. 497, 500, 62 L. Ed. 2d 433 (1980) where the Supreme Court reiterated earlier holdings that NEPA imposes upon agencies duties that are "essentially procedural" and cautioned that once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences. The court is not to interject itself within the area of agency discretion. Id. Therefore, the focal point for our review is the administrative record already in existence and not some new record made initially in the reviewing court. Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973).

 Summary judgment may be properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is warranted only on a clear showing that no genuine issue of any material fact remains for trial. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978). Moreover, the existence of disputed issues of material fact should be ascertained by resolving all doubts against the moving party. Id. However, in light of the limited role of the court in reviewing the administrative record already in existence, this is the type of case which is well suited for summary judgment.

 NEPA Issues

 Turning to the substantive elements of plaintiffs' claims as they appear in the complaint, the first cause of action alleges that preparation of the EIS violated the requirements of NEPA in numerous instances. Several NEPA violations serve as the basis for distinct counts in the complaint and will be discussed separately. Those which do not can be categorized as environmental concerns. Plaintiffs contend that the consideration given to air quality impacts, solid waste impacts, erosion impacts, water quality impacts, and impacts on land and human resources was "woefully inadequate".

 Plaintiffs contend that the air emissions inventory is deficient because U.S.Steel refused to conduct studies which would be required by the U.S. EPA prior to issuing a permit under the Clean Air Act due to prohibitive costs. In addition, inaccuracies in U.S.Steel's baseline air quality data caused the Corps to be "hornswaggled" by the applicant into accepting data which the U.S. EPA later determined to be inadequate. Plaintiffs also allege that defendants failed to discuss the biological effects of air pollution from the operation of the proposed plant and that the Corps tried to "shuffle off" on the U.S. EPA consideration of offsets.

 NEPA requires an EIS to discuss certain factors in sufficient detail to enable the decision makers to make a reasoned decision. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978). The decision may be a complete blunder as long as it is a knowledgeable one. Matsumoto v. Brinegar, 568 F.2d 1289 (9th Cir. 1978). Plaintiffs' Brief highlights portions of the Administrative Record showing that the analysis concerning air pollution was designed to provide enough information to cover the EIS and to enable the Corps of Engineers to perform its duty under NEPA. Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at page 38. Further, any deficiencies in data were made known to the decision makers, to enable them to make a reasonable decision.

 The EIS included a lengthy discussion of primary impacts of facility operations on air emissions and the long-term effects of emissions on human health, vegetation and wild life. See EIS, Vol. III, pp. 4-815 through 4-848. The EIS on its face shows that the plaintiffs' complaints that the Corps failed to adequately discuss the biological effects of air pollution are without merit.

 Plaintiffs next challenge the consideration given to solid waste impacts by the Corps. Specifically, they challenge the propriety of adopting the applicants' position that precise sites for waste deposits would be selected at a later time after "more detailed hydro-geologic surveys of prospective areas." Apparently, the Corps should have insisted that U.S.Steel identify the precise areas where waste would be deposited and require the production of detailed studies prior to issuing the permit.

 The final EIS, Vol. I, pp. 1-251 through 1-257, discusses each of eight areas identified as potential disposal sites, includes a site map showing their location, and states that seven of them appear capable of handling greater than twice the estimated waste over the life of the plant. Three of the applicants' choices were rejected because they conflicted with the Fish and Wildlife Mitigation Plan developed by the Corps. The EIS assures that during the continued process of selecting a suitable site for waste deposits, the applicant would be required to conform to the site selection and construction requirements set forth in the pertinent statutes. This is sufficient consideration under NEPA.

 In addition, plaintiffs allege that the EIS is deficient because no specific erosion control plans were specified. Rather, the Corps estimated the erosion rate and referred to an on-site erosion control program to be developed by the applicant. Also, plaintiffs contend that it should have been made "crystal clear" in the EIS which areas of the site would be exempted from expansion and preserved as wildlife sanctuaries.

 NEPA imposes affirmative obligations on an agency to seek out information concerning environmental consequences, but does not specify the quantum of information that must be in the hands of the decision maker before he decides to issue a permit. Alaska v. Andrus, 188 U.S. App. D.C. 202, 580 F.2d 465 (D.C.Cir.1978), vacated in part on other grounds, 439 U.S. 922, 99 S. Ct. 303, 58 L. Ed. 2d 315 (1979). The EIS is to provide the decision maker with a detailed and careful analysis of the relative environmental merits and demerits of proposed action. It does not impose a requirement of perfection, nor does it require that all environmental impacts be known. Environmental Defense Fund, Inc. v. Costle, 439 F. Supp. 980 (E.D.N.Y.1977).

 Despite divergent population projections and a consensus recommendation that an alternative to the A.D. Little population study be presented, plaintiffs complain that the Corps accepted the A.D. Little study with no independent evaluation. Therefore, insufficient consideration was given to impacts of the plant on human resources.

 The EIS does not support plaintiffs' position. A substantial part of Chapter 4 is devoted to the impact of the plant on the human environment. More specifically, population projections and the effects of population increases on a myriad of factors including, inter alia, housing, school systems, sewage systems, law enforcement, fire protection, property taxes, property evaluations, electricity demands, natural gas demands, etc. are considered in relation to both Pennsylvania and Ohio. EIS, Vol. III, pp. 4-1 through 4-510. Careful study of the EIS, especially Volume III, pages 4-103 through 4-106, indicates that the plaintiffs' contentions are without merit. The Corps acknowledges that population studies are speculative at best and that different statistics were received from different sources. A number of governmental agencies submitted independent population projections to the Corps differing from the private study received from A.D. Little. In an attempt to meet this criticism and present the reviewer with some perspective on the different figures offered by the various plans and studies, the EIS includes a chart with multipliers which can be used to estimate the range of possible effects of population growth from the plant.

 The plaintiffs' final environmental criticism of the EIS is that it inadequately considered construction and operation impacts of the plant on water quality. To the extent that the argument advanced in plaintiffs' briefs are not covered elsewhere in this opinion, we need only cite to the EIS, Vol. III, pp. 4-643 through 4-808 to support defendants' position that the environmental impact statement is adequate in its consideration of impacts on water quality.

 Plaintiffs are of the opinion that summary judgment is inappropriate on each of these environmental issues because there are genuine issues of material fact in dispute as to the adequacy of the Corps' consideration. Plaintiffs offer nothing specific to indicate what facts are in dispute. The record clearly reveals what the Corps did and did not do during the permitting process in its consideration of each issue raised. Reviewing that record to determine the adequacy of their consideration is strictly a legal matter within the province of the court. Having done so, we are satisfied from the record that the defendants adequately took into consideration the impact of the plant on air, land and water quality as well as human resources.

 Plaintiffs true complaint is that the conclusion reached by the defendants was contrary to the conclusion that plaintiffs would have reached. While we are sympathetic with the concerns of the plaintiffs, the Supreme Court has left little doubt as to the role of the courts in reviewing the sufficiency of an agency's consideration of environmental factors. Vermont Yankee Nuclear Power Corp., v. NRDC, supra. "Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S. Ct. 2718, 2730, 49 L. Ed. 2d 576 (1976). NEPA imposes upon agencies duties that are essentially procedural and the Act was designed to insure a fully-informed and well-considered decision, but not necessarily one which the judge or judges of the reviewing courts would have reached had they been members of the decision making unit. Stryckers Bay Neighborhood Council, Inc. v. Karlen, supra.

 The Administrative Record and the Environmental Impact Statement more than adequately demonstrate compliance with NEPA and therefore summary judgment will be entered for the defendant as to each of these environmental matters.

 Alternatives

 Plaintiffs' second cause of action charges defendants with violating NEPA by failing to adequately examine alternatives to the proposed plant. Cross motions for partial summary judgment on this issue were denied earlier by the Judge W. Knox because the record at that time was incomplete. Lake Erie Alliance for the Protection of The Coastal Corridor, et al. v. U. S. Army Corps of Engineers, et al., 526 F. Supp. 1063 (W.D.Pa.1980). Since that time, the record has been clarified and augmented and is now in a posture for entry of summary judgment. Plaintiffs reverse their earlier position that there are no material issues of fact in dispute on the alternatives issue and urge the court to deny defendants' motion for summary judgment on this question because their experts disagree with the defendants' experts on the viability of alternative sites. However, disagreement among experts, even if proven after a full trial on the merits, would not serve to invalidate the EIS. Life of the Land v. Brinegar, 485 F.2d 460, 472, ...


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