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Friends of the Earth v. Hall

Citation: 19 ELR 20298
No. No. C88-380R, 693 F. Supp. 904 at 915/(W.D. Wash., 08/11/1988)

The court enjoins the Navy from conducting dredging operations in connection with its construction of a carrier battle group homeport at Everett, Washington. The court initially holds that factual findings made by Washington state hearing boards during the appeal of the state water quality certification are not entitled to preclusive effect or deference. The court next holds that the environmental impact statements (EISs) prepared by the Navy and the Corps of Engineers violated the National Environmental Policy Act (NEPA) by failing to identify the degree of uncertainty and the consequences of a technological failure of the Navy's proposal to use an experimental dredge spoil disposal system called confined aquatic disposal (CAD), which involves in-water disposal of contaminated dredge spoils that will be capped by the disposal of clean native sediment. The data in the EISs' technical appendices and real world experience with CAD technology demonstrate that the disposal plan is experimental and presents a significant risk of failure and major harm to the marine environment. The court holds that the concerns raised by the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) should have been included in the body of the EISs, not just in the comments and response section, since these agencies clearly stated strong opposition to the project itself and the body of the EISs never discusses the environmental concerns raised by any responsible party. The court holds that the record of decision (ROD) issued in support of the Corps' decision to issue a Federal Water Pollution Control Act (FWPCA) § 404 permit does not eliminate the areas of environmental concern. The ROD's monitoring plan does not alter CAD's experimental nature or remove the possibility of a technological failure.

The court holds that the Corps' characterization of the native sediments to be used to cap the contaminated sediments as "clean" violated NEPA. The chemical and biological tests conducted by the Corps and the Navy were at best inconclusive and may directly contradict the EISs' conclusions that the native sediments are sufficiently clean to use as capping material. The EISs also fail to identify the scientific uncertainty concerning the validity of the test results and the environmental risks posed by the native sediments. The Corps also violated NEPA by failing to include in the body of the EISs the opposing views of the FWS and the NMFS on the potential toxicity of the native sediments. The Corps violated its duty under NEPA to gather additional data and conduct further tests when faced with critical information gaps concerning chemical analysis and biological risk of the native sediment. Assuming the Corps is correct in asserting that it cannot perform tests for chronic biological effects from long-term exposure, the court holds that the Corps violated NEPA by failing to perform a worst case analysis. The court holds that a report that identifies a high concentration of various chemicals in the sediments and concludes that these chemicals are toxic to the biota is significant new information requiring additional studies and a supplemental EIS.

The court holds that the Corps violated NEPA by failing to disclose in the text of the EISs that the NMFS had challenged the Corps' conclusions about the impacts of the release of contaminated sediments during dredging and disposal and by failing to assess or disclose the potential biological impacts of the release. The Corps also violated NEPA by failing to perform a worst case analysis after the water quality certification capping criteria allowed a potentially significant additional amount of contaminated sediments to remain uncapped. The Corps violated NEPA by failing to identify or assess the risks of cap failure posed by chemical migration and burrowing marine organisms. The Corps' reliance on monitoring and additional capping does not allow it to avoid assessing these potential environmental threats. The court holds that a study's identification of native burrowing organisms at the site is significant new information requiring additional studies and a supplemental EIS.

The court holds that the Corps' process for developing the monitoring plan, the centerpiece of its mitigation plan, violated NEPA. The draft monitoring plan in a technical appendix to an EIS does not satisfy NEPA, since it is conclusory and general. Although the Navy has now prepared a detailed monitoring plan, the public did not [19 ELR 20299] have an adequate opportunity to comment on the plan. It is doubtful that the Corps can satisfy its public participation duties by relying on the comment periods in state administrative proceedings and the state proceedings were limited to whether the plan met state requirements. The court also notes that the monitoring plan may not be capable of detecting and preventing environmental harm. The court holds that the Corps did not have sufficient data to make a reasoned choice between CAD and various upland disposal alternatives. The court holds that the Corps must increase the cost estimate for CAD to include the cost of additional future capping required to respond to bioturbation and chemical migration. The EIS adequately discussed the Smith Island upland disposal alternative. However, the Corps must include criteria for risks from operational mishaps and the capability for accurate monitoring, must explain how it arrived at the numerical rating it assigned to each alternative for each criterion, and must explain in detail what factors other than those used in the numerical calculations played a role in the decision.

The court holds that the Corps' decision to grant the Navy's § 404 permit application violated the FWPCA. The Corps' finding that the project would not result in any significant deterioration of the waters of the United States was arbitrary. The court sets aside the Corps' choice of the CAD disposal site as the only practicable alternative, since the Corps did not have a rational basis to conclude that the CAD alternative would have no greater adverse impact than upland disposal alternatives. The Corps reasonably viewed the costs of the project in the context of the $ 272 million overall homeport budget, rationally excluded the speculative possibility for a resale of a potential upland disposal site, and rationally calculated the costs of the upland disposal alternatives. The court holds that the Corps violated its own regulations by failing to provide adequate opportunity for public comment on the monitoring plan.

The court rules that the FWPCA requires it to issue an injunction where a failure to do so would result in the discharge of a pollutant into the nation's water. Even if the FWPCA does not require an injunction, the nature of the NEPA and FWPCA violations requires an injunction under traditional equitable balancing. The court has found a significant risk of major irreparable environmental injury if dredging proceeds as planned. A delay in construction of the homeport will not irreparably injure the nation's defense and Congress has expressly prohibited the release of funds for the project until all environmental considerations are addressed.

[Related decisions are published at 18 ELR 20630 and 21016.]

Counsel for Plaintiffs
Todd D. True, Victor M. Sher
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

counsel for Defendants
Brian V. Faller
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2308