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Des Plaines, City of v. Metropolitan Sanitary Dist.

ELR Citation: 7 ELR 20389
Nos. No. 76-1847, 552 F.2d 736/10 ERC 1253/(7th Cir., 03/22/1977)

The court affirms a lower court's grant of summary judgment for defendants in a suit challenging the adequacy of two final environmental impact statements prepared by the Environmental Protection Agency (EPA) in conjuncton with federal funding for construction of a proposed sewage treatment plant and pipeline system. EPA's decision to approve the projects was not arbitrary or capricious and thus is not subject to judicial reversal under the National Environmental Policy Act. The impact statements adequately comply with the Act's procedural requirements. EPA prepared the pertinent analytical portions of the statements, so there was no impermissible delegation of federal responsibilities. The impact statements' failure to disclose an initial EPA recommendation that a different site be used for the treatment plant did not render them inadequate as a basis for decision by the responsible reviewing official in view of the substantial input of plaintiff and others opposing the site ultimately selected. The impact statements also indicated that EPA took the requisite "hard look" at the possibility of bacterial and viral aeration at the plant creating a health hazard for city residents living nearby and required certain design changes to suppress aerosol emissions. Given the current scientific uncertainty regarding the very existence of such potential health hazards, more was not requied. Plaintiff's objections to the lower court's denial of its requests to depose certain EPA staff members are ill-taken since the strong showing of bad faith or improper behavior necessary to justify such mental process probing has not been made.

Counsel for Plaintiff-Appellant
Robert S. Minetz
Di Leonardi & O'Brien
790 Lee St., Des Plaines IL 60016
(312) 298-3170

Edward C. Hofert
Hofert & Samelson
780 Lee St., Des Plaines IL 60016
(312) 872-5117

Counsel for Defendants-Appellees
Samuel Skinner, U.S. Attorney; Robert Stephenson, Ass't U.S. Attorney
U.S. Courthouse, 219 S. Dearborn St., Chicago IL 60604
(312) 353-1875

Allen S. Lavin
Legal Department, Metropolitan Sanitary District
100 E. Erie St., Chicago IL 60611
(312) 751-5672

Before PELL and BAUER, Circuit Judges, and CAMPBELL, Senior District Judge.*