that it was obliged to require NHC to do a study of the adverse impact of the filling activities on the Troise property as of the date of trial. Defendant's Memorandum at 45.
The original plans for the Landfill envision minor filling of wetlands on the Troise property in order to construct a leachate pipeline that will take waste away from the Landfill for treatment and release in a nearby stream. This particular method of removing the leachate is not a necessary part of the Landfill's operation, but it is probably the only cost-effective means of removing the leachate, and therefore is very important to the long term viability of the project. While the total area of wetlands filled by the proposed pipeline is known and has been considered by the Corps, the Corps argues that it cannot know with certainty where the pipeline will be located since there are a number of other permits and decisions that are subject to future determination. See N.T. April 10 at 80. The Corps argues that the adverse impact study on the Troise property should be conducted when it is known if and when the leachate pipeline will be constructed. See Defendant's Memorandum at 47.
Plaintiffs object that the Corps' decision to confirm the availability of the NWP 26 for the Landfill without requiring the performance of an adverse impact study that it knows will almost certainly have to be performed in the future is an impermissible "segmentation" of the permit process. See Plaintiffs' Motion For Summary Judgment at 27. They argue that a necessary condition for a NWP cannot be left to future determination, since "the very existence of the landfill will influence the consideration of the [adverse] impact" study. Id. at 28. Plaintiffs cite Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir. 1986) to support this proposition. Maryland Conservation Council does not stand for the broad proposition urged by plaintiffs. In Maryland Conservation Council, the Fourth Circuit Court of Appeals held that non-federal actors had to comply with NEPA's requirement for an EIS in a highway project if any future stage of the project was involved federal action. See Maryland Conservation Council, 808 F.2d at 1042 ("non-federal actors may not be permitted to evade NEPA by completing a project without an EIS and then presenting the responsible federal agency with a fait accompli.
There is no danger here that the Corps will be bullied into accepting the leachate pipeline if it violates Condition 9. First, the Corps has stated in court that if NHC receives final approval for the construction of the Landfill and begins its construction before the final location of the pipeline is determined, the Corps can and will demand that an adverse impact study be performed by NHC. See N.T. April 10 at 80. Second, even if the construction of the Landfill begins before the pipeline receives final approval, the construction will not "'stand like gun barrels'" over the Troise property, forcing the Corps to approve the pipeline in the face of a violation of condition 9. See Maryland Conservation Council, 808 F.2d at 1042, quoting Named Individual Members of the San Antonio Conservation Society v. Texas Highway Dept., 400 U.S. 968, 971, 27 L. Ed. 2d 388, 91 S. Ct. 368 (1970). NHC takes a risk if it invests in the Landfill before it knows whether a critical ancillary structure, such as the leachate pipeline, can be built. If the pipeline cannot be built without violating condition 9, then the pipeline cannot be built. The subsequent cost of modifying or closing the Landfill will be borne by NHC.
The debate over the landfill has spanned many years and courts. The case is inseparably tied to questions about how society should allocate the costs of disposing of its wastes, and who should bear the burdens of that disposal. unfortunately, Plaintiffs have chosen the wrong avenue to express their very real concerns: I find the critique of the Corps that forms the heart of this case to be misplaced. The Corps' performance of the task presented by the voluntary remand was not arbitrary, nor was it erroneous as a matter of law. An appropriate order follows.
Edward N. Cahn
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 796 F. Supp. 180.
June 1, 1992
AND NOW, this 1st day of June, 1992 for the reasons set forth in the foregoing Opinion, IT IS ORDERED that judgment is hereby ENTERED in favor of Defendant.
The Clerk of this court is directed to close the docket of the within case for statistical purposes.
BY THE COURT:
Edward N. Cahn, Jr.