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20 ELR 21387 | Environmental Law Reporter | copyright © 1990 | All rights reserved Borough of Ridgefield v. United States Army Corps of EngineersNo. 89-3180 (D.N.J. July 2, 1990)In an opinion designated as not for publication, the court holds that the Corps of Engineers' issuance of a permit under § 404 of the Federal Water Pollution Control Act for construction of a resource recovery plant in Ridgefield, New Jersey, was not arbitrary and capricious. Construction of the facility requires the filling of 19 acres of wetlands. The Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service initially objected to the site, but withdrew their objections after mitigation conditions were placed on the permit. The conditions require that the post-project wetland value equal 140 percent of the wetland value lost by construction of the facility. The court holds that plaintiffs are estopped from arguing issues already litigated in state court. The state court litigation was based on different actions and statutes, so the doctrine of claim preclusion does not apply. However, the doctrine of issue preclusion bars plaintiffs from arguing that other sites are practicable alternatives, zoning is not a valid criteria in determining alternative sites, the facility can be built on less than a 45-acre [20 ELR 21388] site, and reliance on a study conducted by the county utility authority is arbitrary and capricious. The court holds that the Corps' issuance of the permit was not arbitrary and capricious. The Corps adequately examined alternative technologies, such as recycling, composting, and other types of incinerators. Plaintiffs may not argue before the court for consideration of alternative sites that were not before the Corps during the application process. Even assuming the issue is appropriate for review, the Corps' decision that no alternative sites were available is not arbitrary and capricious. The Corps reasonably considered an area's zoning and proximity to residential areas in determining practicable sites. The court holds that the administrative record is sufficient for judicial review and rationally supports the Corps' decision to grant the permit. The court holds that the project is not contrary to the public interest. Counsel for Plaintiffs Counsel for Defendants Thomas H. Pacheco Stephen S. Sinisi John M. Agnello Mark A. Chertok Plaintiffs, Borough of Ridgefield ("Ridgefield") and Mayor Stewart Veale (collectively "Plaintiffs") bring this action against defendants the Army Corps of Engineers (the "Corps"), Col. Ralph M. Danielson, (collectively the "Federal Defendants") The Bergen County Utilities Authority (the "BCUA") and America Ref-Fuel Co. of Bergen County ("Ref-Fuel") (collectively "Defendants")1 to void the issuance of a permit ("the Permit") under Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, to build a resource recovery plant in Ridgefield (the "Ridgefield Site"). Presently before the court is the motion of Plaintiffs for summary judgment or in the alternative to supplement the administrative record. Also before the court are the motions for summary judgment of the Corp[s] and the BCUA and Ref-Fuel. Jurisdiction is based upon 28 U.S.C. § 1331(a). For the reasons that follow Plaintiffs' motion is denied and the Defendants' motions are granted.2 The current lack of landfill or proper disposal for solid waste in New Jersey and particularly Bergen County has precipitated a search for ways in which to dispose of Bergen County's solid waste. Until recently this waste was deposited in a landfill located in the Hackensack Meadowlands operated by BCUA. Corps' Brief at 4. At present, as a result of the closure of the Hackensack site, most of Bergen County's solid waste is transported out of state to be disposed of as landfill. R. XIV at 3870. The paucity of disposal options and the environmental, economic and social costs associated with it has been a matter of concern to both the local citizens and representatives statewide. See R. XIV 3434-3435 (Letter to the Corps from Senators Bill Bradley, Frank Lautenberg, Congressman Robert G. Torricelli and Congresswoman Marge Roukema). In order to meet the problem of solid waste disposal, Bergen County in 1980 charged BCUA with the task of implementing the Bergen County District Waste Management Plan (the "Plan"). The Plan was approved by the New Jersey Department of Environmental Protection ("DEP") in 1982 and recommended a Resource Recovery Facility (the "Facility") be constructed at the Ridgefield Site. R XII at 2879. Both BCUA and the Hackensack Meadow Lands Development Commission ("HMDC") chose the Ridgefield Site after considering such factors as engineering, cost and certain environmental factors since 1971. Id. The Ridgefield Site comprises approximately seventy-two acres located between the Hackensack River and the New Jersey Turnpike adjacent to the Vince Lombardi Service Area. R XVI at 3941. The site is zoned for heavy industry. The closest residential area is three-fourths of a mile from the site. R XIII at 3305. Construction of the Facility would require access roads across a twenty-four and four-tenths acre parcel of land southeast of the Facility area. Id. The entire area consists of seventy-two and four-tenths acres of wetlands, fourteen and two-tenths acres of open water and eight and seven-tenths acres of uplands. Id. 3941-3944. The construction of the Facility originally called for filling thirty-six and six-tenths acres of wetlands both for the Facility and its access roads. R XVI at 3870. The number of acres required to fill to complete the Facility was eventually reduced to nineteen. Id. at 4013. The Facility itself will burn a peak load of three thousand tons of waste a day and reduce the volume of solid waste fed into it by ninety percent. It would also generate electrical energy equal to burning 730,000 barrels of oil a year. R XVI 3870, 3886. The trucks bringing in waste material would make approximately 1,200 trips per day. R VII at 1911. On 30 October 1984 BCUA and Ref-Fuel applied to the Corps for a permit under CWA § 4043 to fill in wetlands at the Ridgefield Site for construction of the facility. R I at 29. On 16 December 1985 the Corps published a public notice (the "Initial Notice") describing the proposed Facility, announcing public hearings and providing a forty-nine day comment period. R III at 784. The hearings were held on 16 January 1986 in Ridgefield and on 21 January 1986 in Palisades Park. R IV at 899, R V at 1070. Ridgefield appeared at the 16 January hearing and spoke in opposition to the Ridgefield Site. R IV at 930-36. Ridgefield also submitted written opposition, R VI at 1321-1331. In its comments Ridgefield proposed a site in Lyndhurst, New Jersey (the "Lyndhurst [20 ELR 21389] Site") and also stated the Facility would not meet air quality requirements. Ridgefield proposed no other sites at the Initial Notice hearing. Its main comments were that the Lyndhurst Site was a better alternative and that the Corps should not issue a permit to build at the Ridgefield Site. The Corps published a supplemental public notice (the "Supplemental Notice") on 30 April 1987. This notice described new mitigation plans for the Facility and described a proposed site in North Arlington for landfilling non-processible wastes from the Facility (the "North Arlington Site"). R XII at 2843. A period for public comment lasting thirty days was also announced in the Supplemental Notice. Id. at 2859. After the period for public comment had closed, Ridgefield requested, by letter, dated 27 June 1987, additional public hearings. R XIII at 3152. The request was denied pursuant to 33 C.F.R. § 327.4(b) which allows the Corp[s] to deny a public hearing when "the issues raised are insubstantial" or "there is otherwise no valid interest to be served by a hearing." Id. Nonetheless, the Corps arranged a meeting with Ridgefield's representatives including its attorney to discuss opposition to the Ridgefield Site. R XIII 3165. At the meeting Ridgefield presented no new facts but primarily relied on its interpretations of law. Id. at 3165-3214. Public opposition to the Supplemental Notice took the form of (1) general opposition to the facility being located in Ridgefield, (2) concern for the safety of the Facility, (3) opposition to the loss of wetlands and the mitigation plan, (4) concern about waste disposal at the North Arlington Site, (5) a complaint that the Corps was avoiding its responsibility to hear from the public directly and (6) a preference for recycling over incineration. R XVI at 3876. Ridgefield's only addition to these comments were that a public hearing would allow its experts to testify publicallybefore the Corps. Id.4 The Corps also coordinated its review of the BCUA's permit application with interested agencies. The Environmental Protection Agency ("EPA") initially had reservations about the Ridgefield Site. R XIII at 3118. These reservations focussed on the availability of alternate sites for the Facility as well as disposal of ash. Id. After other sites were eliminated because of cost, zoning and environmental problems, the EPA withdrew any objections to the Ridgefield Site as long as the Permit required the following proposals to mitigate the filling of existing wetlands: (1) vegetation must be established on site with and [sic] eighty-five percent survival rate in the second and third growing season, (2) preservation of the wetlands be ensured and (3) within ninety days of issuing the Permit, the BCUA and Ref-Fuel were to submit a mitigation workplan including milestones. R XIV at 3383. The United States Fish and Wildlife Service ("USFWS") also objected to the Ridgefield Site. However, these objections were withdrawn on 12 June 1987. The USFWS withdrew its objections with the condition that any permit issued by the Corps require, in addition to the EPA's requirements, a change in the access roadway to permit a large tract of wetlands to remain rather than two small tracts and the monitoring of the water quality. The USFWS also requested any debris removed be disposed of upland and that replacement vegetation planted by made up of a variety of species rather than the ubiquitous weed Phragmites Australis. R XIII at 3114. The National Marine Fisheries Service of the United States ("NMFS") opposed the Permit by letter, dated 22 January 1986. R V at 1312. NMFS again opposed issuing the Permit by letter, dated 27 May 1987, but at the same time recognized that the Facility would have the beneficial affect [sic] of avoiding the continued use of wetlands for landfill. R XII 2952, XVI 3877. On 2 May 1989 NMFS indicated it had no further objections to the Facility as long as the Permit included the limitations suggested by the EPA and USFWS. R XVI at 3814. The public comments made after the Initial Notice hearing and the suggestions and requirements of the EPA, USFWS and NMFS were incorporated into the revisions for the Facility announced in the Supplementary Notice on 30 April 1987. The revisions made in the original Plan increased the mitigation of wetlands from thirty-seven acres to fifty-two acres. The amount of wetlands to be filled decreased from twenty-four acres to nineteen acres. R XVI at 3825. Before issuing the Permit, the Corps conducted an Environmental Assessment ("EA") pursuant to the National Environmental Policy Act 42 U.S.C. §§ 4321-4370a, an evaluation (the "Evaluation"), as required by section 404(b)(1) of the CWA, and produced a statement of findings regarding the application. The EA analyzed the facilities impact on affected wetlands resources, economics, aesthetics, air quality, water quality and energy needs and determined that the issuance of the Permit would not significantly impact the human environment and an environmental impact statement was not required. R XVI 3884. The Evaluation, as required by statute and federal regulations, assessed alternatives to the project. The alternatives examined were no action, alternative technologies and alternative sites. R XVI 3900-11. Given the continuing problem of waste disposal in Bergen County and the likely environmental impact of continuing the status quo, no action was ruled out as an alternative to building the Facility. R XVI at 3901-02. Alternatives to an incinerator like the Facility were considered. Composting, material separation and recovery and alternative means of incineration were evaluated by the BCUA and Ref-Fuel. All were rejected because they were either unlikely to properly address the magnitude of the waste disposal problem in Bergen County or were technologically infeasible. Id. at 3903-05.5 BCUA and Ref-Fuel also sought alternative sites to the Ridgefield Site. Site selection had been pursued by HMDC and the BCUA since 1971. In 1975 Rutgers University studied factors of vehicle trip distances to proposed sites. Sites inside and outside the jurisdiction of the HMDC were evaluated and out of thirty vacant parcels the Ridgefield Site was chosen. R XVI at 3905. In 1980 site evaluations were again carried out by the BCUA which analyzed seventy-six parcels of land. Sixty-seven of these sites were eliminated as possibilities because of steep slopes, absence of access to major highways, existing land use incompatible with the Facility and flooding considerations. Id. After comparing the nine remaining sites the BCUA again concluded the Ridgefield Site is the preferred alternative. Id. These early investigaations primarily concerned engineering problems, cost and certain environmental factors. The BCUA submitted a two-part study (the "Two-Part Stud") with its permit application. Some information from its earlier studies was used in the Two-Part Study. The Two-Part study included an evaluation of alternative sites within and without HMDC boundaries. Id. at 3906. Unsuitable parcels of land were eliminated by reference to land use, zoning and solid waste disposal problems. Id. at 3906. Although the BCUA and Ref-Fuel considered any parcel of land below forty-five acres in size inadequate for the needs of the Facility, comments during the application process prompted the Corps to direct a study sites of twenty-five to forty-five acres in size as well. Id. The Two-Part Study eliminated sites such as the Teterboro Airport from consideration if they were under an authority or jurisdiction other than HMDC. Marshland Preservation zones and areas zoned for park and recreation were also eliminated because of the state mandate to protect wetlands and park space. Id. Similarly, low density residential and light industrial areas were eliminated. The remaining sites were zoned heavy industrial and were located in Lyndhurst and Ridgefield. The Ridgefield Site had been re-zoned heavy industrial by the HMDC in 1980 following an analysis of the environmental value of the site after its previous use as a dump site for dredge material. Id. The next state of review entailed eliminating large open water areas, upland parks and sanitary landfills. Valuable wetlands, developed properties and small undeveloped properties were also eliminated. Id. This analysis left the seventy-eight acre North Arlington Site, the ninety-nine acre Lyndhurst Site and the seventy-two Ridgefield Site. The BCUA then reviewed solid waste disposal aspects of these sites as well as that of a tract in Little Ferry (the "Little Ferry Site") zoned as park land. The study of these areas took into account nine criteria: (1) compliance with master plan zoning, (2) highway accessibility, (3) [20 ELR 21390] proximity to the centroid of garbage production,6 (4) proximity to potential energy market, (5) adverse affects [sic] on the potential of adjacent property, (6) adverse effects on wetlands, (7) availability of on-site facilities, (8) proximity to residential areas and (9) vehicle air emissions and haulage costs. Each criteria was assigned a value of one to ten except for zoning which was "given a twenty percent weighting in the evaluation." Id. at 3907. The Ridgefield Site was ranked highest in each criteria except adverse effect on wetlands. The North Arlington Site had poor access to highways and was far from the centroid of garbage production. The Little Ferry and Lyndhurst Sites were the closest to residential areas. Under the point system, the Ridgefield Site received at ninety-seven points, the Little Ferry Site fifty-six points, the Lyndhurst Site fifty-five points and the North Arlington Site fifty points. Id. at 3908. The second part of the Two-Part Study examined areas within Bergen County but outside of the jurisdiction of the HMDC. Feasibility was analyzed considering the criteria of zoning, proximity to reservoirs, topography, transport and access feasibility, hauling costs, proximity to residential areas, ownership of the site and whether it [sic] the site was a public park or recreation area. Id. Four sites emerged from this analysis. The sites were in Woodridge (the "Woodridge Site"), Mahwah (the "Mahwah Site"), Oakland (the "Oakland Site") and Alpine (the "Alpine Site"). The only site compatibly zoned for the Facility was the Woodridge Site. It is currently being leased to small industrial users and the displacement costs of relocation, even if the power of eminent domain, were to be exercised was considered impracticable. Id. In addition to being zoned improperly the Mahwah, Oakland and Alpine Sites all contained steep slopes which made the construction of a facility on these sites difficult and costly. Id. at 3908-3909. Moreover all were further from the garbage centroid than the Ridgefield Site. Id. at 3909. In considering all the factors, every site outside of the jurisdiction of HMDC was determined to be non-feasible under at least three of the selected criteria. All of the sites studied at the request of the Corps which were under forty-five acres were either parks or cemeteries and thus not suitable for the facility. Id. at 3909. Despite these studies, public comments and the concerns of the EPA and other federal agencies suggested a closer look at the Lyndhurst and North Arlington Sites. Prompted by these concerns and the Corps, the BCUA requested a change in zoning of the Lyndhurst Site. The HMDC denied the request. This decision withstood challenge in the New Jersey Superior Court, Appellate Division. R III at 848-9 (Mayor and Council of the Borough of Ridgefield v. HMDC, No. A-3745-84T7 (N.J. Super. Ct. App. Div. Dec. 26 1985). The New Jersey Supreme Court denied certification. R VII at 1892. In addition, the previous use of the Lyndhurst Site as landfill presented construction difficulties. R XVI at 3910. The EPA also suggested the North Arlington Site and a site in Rutherford (the "Rutherford Site") as alternative sites. The present facility will use the North Arlington Site as landfill for seven years. After its use as a landfill site expires the North Arlington Site will be covered and reclaimed as park land. The Rutherford Site is zoned parkside residential and is former landfill. The use of both sites as landfill has created construction difficulties involving the monitoring of methane gas. These sites thus present the same problems as the Lyndhurst Site. Id. at 3910. The EPA reviewed the information on the Rutherford and North Arlington Sites and withdrew any objections based on the alternative use of these sites. R XIV at 3294. As the Permit process was proceeding, BCUA and Ref-Fuel were also pursuing permits required by the DEP. BCUA and Ref-Fuel sought Solid Waste Facility, Air Pollution Control, New Jersey Pollution Discharge Elimination System and Stream Encroachment permits. After hearings and publication of notice, all permits were issued except the Solid Waste Facility permit which was issued on a temporary basis. R XIII at 3223. The Stream Encroachment permit was separately processed and the DEP also issued Ref-Fuel a Waterfront Development permit. The issuance of all of these permits except the Waterfront Development permit was challenged by Plaintiffs in In re Stream Encroachment Permit No. 12400, 231 N.J. Super. 443 (App. Div.) cert. denied, 115 N.J. 70 (1989). Plaintiffs' arguments were rejected and the issuance of the permits was upheld. Id. at 463.7 The Permit to fill in wetlands at the Ridgefield Site, including the conditions imposed by the EPA, USFWS and NMFS, as well as some imposed by the Corps, was issued on 12 May 1989. The various conditions to the Permit mandate that the post-project wetland value equal 140% of the wetland value lost through landfill for the Facility. R XVI 3935-40. On 27 July 1989 Plaintiffs filed the instant action to revoke the Corps' issuance of a Permit to fill in wetlands at the Ridgefield Site. Plaintiffs seek summary judgment because they allege the Corps granted the Permit arbitrarily and capriciously. Specifically, Plaintiffs claim the Corps ignored practicable alternative sites, based its decision on an inadequate record and improperly determined the issuance of the Permit was in the public interest. The BCUA and Ref-Fuel move for summary judgment on the grounds that these issues were already litigated in state court and because the Corps decision was not arbitrary or capricious. The Corps does not argue claim or issue preclusion but moves for summary judgment because it claims the record is complete, it did not issue the Permit arbitrarily or capriciously and the issuance of the Permit was in the public interest. To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court's task is to determine whether disputed issues of fact exist, but the court cannot resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. See Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 474 U.S. 574, 587 (1986). Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a fact issue, its opponent must do more than simply show that there is some metaphysical doubt as to the material fact. . . . In the language of the Rule, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial. . . . " Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial." Matsushita, 475 U.S. at 586-87 (emphasis in original, citations and footnotes omitted). The Supreme Court elaborated on the standard in Anderson v. Liberty Lobby, Inc.: "If the evidence [submitted by a party opposing summary judgment] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." 477 U.S. at 249-50 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317 (1986): "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose." Id. at 323-24 (footnote omitted). Thus, once a case has been made in support of summary judgment, the party opposing the motion has the affirmative burden of coming forward with specific facts evidencing a need for trial. See Fed. R. Civ. P. 56(e). Res judicata has been given a number of meanings and used to refer to various doctrines barring relitigation of a matter. To avoid confusion courts have adopted the term "claim preclusion" to "encompass both merger and bar principles in giving dispositive effect in a later action to a prior judgment." Gregory v. Chehi, 843 F.2d 111, [20 ELR 21391] 115-116 (3d Cir. 1988). Issue preclusion is the term now used to describe collateral estoppel. Electro-Miniatures Corp. v. Wendon Co., Inc., 889 F.2d 41, 44 (3d Cir. 1989). It is more limited than claim preclusion because it bars only issues identical to those adjudicated in a prior action. Gregory, 843 F.2d at 116. Both forms of preclusion are rules formulated by courts "designed to draw a line between meritorious claim[s] on the one hand and the vexatious, repetitious and needless claim[s] on the other hand." Purter v. Heckler, 771 F.2d 682, 690 (3d Cir. 1985). Litigation should not be renewed after a case has been fully presented before a court and the issue has been decided against a litigant. Id. For the application of issue preclusion the burden of proof in the state action must be commensurate with the federal standard. In re Braen, 900 F.2d 621, 624 (3d Cir. 1990). In addition the litigant against whom issue preclusion is invoked must have had a full and fair opportunity to litigate the issue. Id. at 628. The "full faith and credit" clause of 28 U.S.C. 17388 requires a federal court in applying preclusion to give a prior state judgment the same effect as the adjudicating state would grant it. McNasby v. Crown Cork and Seal Co., Inc., 888 F.2d 270, 276 (3d Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1783 (1990); Gregory, 843 F.2d at 116. Full faith and credit must be given when assessing both issue preclusion and claim preclusion. McNasby, 888 F.2d at 276. Therefore, in determining claim preclusion, the prior state court adjudication in Stream Encroachment must be given the same preclusive effect New Jersey courts would give it.9 To invoke preclusion, it is required that both actions contain substantially similar or identical causes of action, issues, parties and relief sought. Culver v. Insurance Co. of North America, 115 N.J. 451, 460 (1989). A final judgment by a court of competent jurisdiction is also required. Id. Although issue and claim preclusion are similar, they have different consequences. Claim preclusion bars a party from asserting issues he might have raised but did not in the prior action. Gregory 843 at 116. Issue preclusion forecloses only a matter actually litigated and essential to the prior decision. It does not prevent litigation of issues that were not litigataed in the prior action. Id. To characterize two causes of action as the same for claim preclusion purposes, a court must analyze (1) whether the wrong for which redress is sought is the same in both actions (that is, whether the acts complained of and the demand for relief are the same), (2) whether the theory of recovery is the same, (3) whether the witnesses and documents necessary at trial are the same, and (4) whether the material facts alleged are the same. Culver 115 N.J. at 461-462 (citations omitted). Issue preclusion on the other hand requires only that an issue of fact or law be determined in a valid proceeding and final judgment on that the issue was necessary to the decision. The decision on that issue is conclusive in any subsequent action between the parties on either the same or different claim. Alfone v. Sarno, 87 N.J. 99, 111-112 n. 8 (1981); Taylor by Taylor v. Engelhard Industries 230 N.J. Super. 245, 253 (App. Div. 1989).10 The claims in the present suit differ from that in Stream Encroachment. Here the Plaintiffs challenge the granting of the Permit by the Corps to fill in wetlands. In Stream Encroachment they attempted to overturn the issuing of state permits for the Facility. Although similar, the actions are based on different acts and statutes. Therefore claim preclusion is not applicable. However, the state court did pass on certain issues relevant to the present action.11 In Stream Encroachment Plaintiffs argued, as they do in the case sub judice, that alternative sites exist, including the North Arlington and Lyndhurst Sites. The BCUA and Ref-Fuel argued in Stream Encroachment that the "no feasible and prudent alternative" test under N.J.S.A. 7:13-5.4(a) was different from the federal "practicable" standard in 33 C.F.R. Part 329 et seq. and 40 C.F.R. Part 230 et seq.12 Plaintiffs argued strenuously that the standards as to alternate sites were the same stating: [BCUA and Ref-Fuel] maintain, without citing any authority whatsoever, that the "feasible and prudent" standard in the State regulations are somehow different than the "practicable" standard in the comparable federal regulations, . . . and that this Court should therefore ignore federal cases interpreting what is "practicable". Plaintiffs also argued: "Clearly the federal regulations are comparable and may be used as a guide in interpreting the State requirements." Id. Indeed, Plaintiffs went so far as to assert: "It is questionable, given the pervasiveness of Federal regulation of wetlands, whether parallel State regulations would be constitutional [sic] if they were less protective than the Federal provisions." Plaintiffs prevailed on their interpretation of New Jersey law. The Stream Encroachment court stated "DEP regulations do not define 'feasible and prudent alternative.' However, we consider that the criteria in N.J.A.C. 7:13-5.4 is essentially the same as under federal regulations." Id. 231 N.J. Super. at 452. The court then went on to hold that neither the Lyndhurst, North Arlington or Rutherford Sites were feasible alternatives under the law. The New Jersey standard is the same as the federal standard and so Plaintiffs are precluded from arguing that these sites are proper alternatives under federal law. The Stream Encroachment court squarely held that zoning was a valid criteria in selecting a site. Id. 231 N.J. Super. at 452. It also held that any alternative site must be at least forty-five acres in size. Id. Moreover, the court held that the use of the Two-Part Study to select sites by the DEP was neither arbitrary nor capricious. Id. at 453. the studies approved in Stream Encroachment are the same at issue in the case sub judice. See id. at 452-453. Plaintiffs litigated and lost all of these issues under the same standards as federal law. Therefore, they are precluded from asserting these arguments in the case sub judice against Ref-Fuel and the BCUA. The addition of the Federal Defendants does not change the issue preclusion analysis. As the Second Circuit stated in a similar case: In addition, it is appropriate to allow the state and city defendants to invoke defensive collateral estoppel even though they were not parties to the state court proceeding. Mutuality of collateral estoppel is no longer an essential part of collateral estoppel doctrine . . . . There is no reason in this case to permit plaintiffs to relitigate an issue that was decided adversely [20 ELR 21392] to them in state court merely because they have joined additional defendants this time around . . . . The central question is whether the plaintiffs have had their day in court . . . and the answer here is "yes." Wilder v. Thomas 854 F.2d 605, 621 [18 ELR 21285] (2d Cir. 1988) cert. denied U.S. , 109 S. Ct. 1314 (1989) (citations omitted). Wilder involved a state determination of environmental issues. The plaintiffs litigated and lost in state court. They then brought suit in federal court adding parties in the federal litigation. Because New York has abandoned mutuality of estoppel the plaintiffs were barred from relitigating the adequacy of an environmental impact statement and air quality mitigation measures. Id. 854 F.2d at 621. New Jersey, like New York, has abandoned mutuality of estoppel. Allesandra v. Gross, 187 N.J. Super. 96, 104-105 (App. Div. 1982). The addition of the Federal Defendants would not change the analysis of issue preclusion in New Jersey as long as Plaintiffs had a full and fair opportunity to litigate the issue. Id. Therefore, Plaintiffs are estopped from arguing (1) the Lyndhurst, North Arlington and Rutherford Sites are practicable alternatives to the Ridgefield Site, (2) zoning is not a valid criteria in determining alternate sites, (3) the Facility can be built on a less than forty-five acre site and (4) reliance on the Two-Part Sutdy is arbitrary and capricious. Although Plaintiffs are estopped from arguing that the North Arlington, Lyndhurst and Rutherford Sites are appropriate alternative sites under federal law or that reliance on the BCUA studies for alternate sites is arbitrary and capricious, this does not end the analysis. Issue preclusion does not foreclose all of Plaintiffs' arguments that the Corps acted arbitrarily and capriciously in issuing the permit. Plaintiffs are not estopped from arguing (1) there were technological alternatives to the Facility, (2) the record before the Corps was inadequate was inadequate and (3) the Corps incorrectly decided issuing the Permit was in the public interest. The Administrative Procedure Act ("APA") 5 U.S.C. § 706(2)(A) states the scope of a court's review of agency action. The APA states in pertinent part: "The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordancewith law." 5 U.S.C. § 706(2)(A). To find arbitrary or capricious behavior, a court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 [1 ELR 20110] (1971). Although a court must inquire into the facts carefully "the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. This standard of review is highly deferential; agency actions will not be set aside as arbitrary and capricious unless there is no rational basis for the action. Friends of the Earth v. Hintz, 800 F.2d 822, 830 [17 ELR 20030] (9th Cir. 1986). The duty of the court is to hold the agency to "minimum standards of rationality" and not to inject its own opinion in place of the agency endowed with expertise in the area and entrusted with decision making power. Stoeco Dev. v. Dept. of the Army Corps. of Engin. 701 F. Supp. 1075, 1080 [19 ELR 20634] (D.N.J. 1988) appeal dismissed, 879 F.2d 860 (1989). Agency action is entitled to a presumption of regularity that must be rebutted by those seeking to overturn it. Id. Moreover, agencies have special expertise in their fields and a reviewing court should not usurp an agencies [sic] function. Therefore, upon review, absent exceptional circumstances, a reviewing court should not consider contentions not pressed upon the agency. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 [8 ELR 20288] (1978); Cecil v. Dept. of Transportation, FAA 767 F.2d 892, 894 (Fed. Cir. 1985); Wilson v. Hodel 758 F.2d 1369, 1373 (10th Cir. 1982); United States v. Federal Maritime Commission, 584 F.2d 519, 527 (D.C. Cir. 1978). It is in light of this deferential standard of review that Plaintiffs' charges against the Corps' issuance of the Permit are examined. Plaintiffs argue the Corps' decision was arbitrary and capricious or that the record is incomplete because of the following reasons. (1) There were technological alternatives to the Facility. Plaintiffs' Brief at 8. (2) The site analysis of the BCUA and Ref-Fuel are [sic] without rational basis and improperly consider zoning, hauling costs and proximity to residential areas. Plaintiffs' Reply at 12. (3) The Corps ignored the existence of alternative sites. Plaintiffs' Brief at 33. (4) There are references in the record to meetings between the Corps, BCUA and other Federal agencies for which no transcripts appear. Plaintiffs' Brief at 51. (5) There is no adequate explanation in the record for the EPA, USFWS and NMFS decision to withdraw objections to the Ridgefield Site. Plaintiffs' Brief at 52. (6) The Corps' finding that issuing the Permit was in the public interest is unsupported by the record. Complaint PP28-50. As discussed previously, some of these issues are precluded by the decision in Stream Encroachment. All of the issues pressed by Plaintiffs are meritless; the record is adequate and reflects the rationale of the decision of the Corps. Alternative Technologies13 Plaintiffs assert the Corps did not pay enough attention to alternative technologies, primarily recycling and composting or other types of incinerators. However, the Corps examined all of these alternatives. Recycling, although recognized as a beneficial addition to the Facility, had not been proven successful enough to solve Bergen Counties considerable solid waste disposal problem. R XVI 3903. Similarly, composting and alternate incinerators were simply impractical given the amount and type of waste requiring disposal. Id. at 3902-3904. The Corps examined each alternative and for rational reasons rejected them as proper alternatives. The Corps noted that the highest reduction in waste that can be expected from any recycling program is fifty percent. Id. at 3903. The average reduction is closer to twenty to thirty-five percent. Id. The state of New Jersey has adopted a recycling goal of twenty-five percent reduction in waste. Id. The Corps recognized that recycling is "an effective solid waste management method which requires full consideration in any long term waste management plan." Id. However, the Facility will reduce the volume of waste received by it by ninety percent which is far above any reasonably expected achievement by recycling. Under these circumstances the Corps did not have to require a detailed study of every conceivable recycling project. As mentioned, a reviewing court is not to substitute its judgment for that of the agency's. Stoeco Dev. 701 F. Supp. at 1080. The Plaintiffs' arguments amount to a disagreement with the Corps over the practicability of various technologies. Invalidation of agency action on such grounds is not warranted. Even if a recycling program exists, and neither Plaintiffs nor anyone else who commented pointed to a recycling program capable of the Facility's waste stream reduction, the Supreme Court has warned that considering alternatives [c]ommon sense also teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved. Vermont Yankee 435 U.S. at 550. The Corps' determination that no technological alternatives capable of performing the Facility's function exists is rational. Alternate Sites As previously noted the issue of alternative sites has already been addressed by the state court in a prior adjudication. Moreover, the Plaintiffs raise alternate sites in their submissions to the court, such as the Mahwah Site, that they did not bring to the attention of the Corps during the application process. Plaintiffs' Brief at 20, 22. Absent unusual circumstances, a court should not overturn agency action based on arguments not presented to the agency. Wilson 758 F.2d at 1373, Myron 670 F.2d at 51-52. At oral argument Plaintiffs contended that they were not given an adjudicatory hearing to offer alternative sites and that they could not do so because they did not know the Corps' reasoning until the Permit issued. Tr. at 20-21. Neither of these arguments excuses Plaintiffs from arguing these alternate sites before the Corps. In the first instance the record is clear that Plaintiffs had ample opportunity to comment on the record and submit studies. The Corps did not rigidly exclude all information submitted after the forty-nine day Initial Notice period and the thirty day Supplemental Notice period. Indeed nothing in the record suggests the Corps excluded anything submitted by Plaintiffs. In addition Plaintiffs were given an informal opportunity to present information and argument orally. R XIII at 3165-3214. The Two-Part Study was offered when BCUA and Ref-Fuel applied for the Permit and so Plaintiffs had it before them and available for comment. In fact, when comments were made that a twenty-five acre site might be found and used the Corps ordered a new study. The record demonstrates that the Corps was receptive to comment and provided ample opportunity for Plaintiffs to do so. Plaintiffs' contention that they could not provide alternate sites until they knew the Corps' reasoning misperceives the purpose of the administrative process. The whole process of public notice and comment is to provide the Corps with reasoning and objections. As one court has noted: "[T]he Corps is not a business consulting firm," and does not have the resources to conduct a study of every possible alternate site. Friends of the Earth 800 F.2d at 835. Instead, the Corps must rely on studies provided by the applicant, comments and studies supplied by others during public comment, its own expertise and that of other agencies. The time for suggesting alternate sites is before a permit is issued. The EPA's suggestion that the Lyndhurst Site be given closer scrutiny was followed by the Corps, as was every suggestion concerning alternate sites brought to the Corps' attention. The Plaintiffs also contend that there [sic] general comments to the Corps that alternative sites existed were enough to present the Corps with the issue of specific sites like the Mahwah Site. Tr. 21-22. This view of what constitutes adequate presentation of an issue to the agency seems to be in conflict with the Supreme Court's admonition that "a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below, must not be made the basis for overturning a decision properly made after an otherwise exhaustive proceeding." Vermont Yankee, 435 U.S. at 558. However, even if Plaintiffs are correct and the issue is appropriate upon review by this court and the issue of alternate sites is not preempted by Stream Encroachment, the Corps decision on alternate sites was neither arbitrary nor capricious. The issuing of permits and decision on what is "practicable" is governed by 40 C.F.R. 230.10(a)(2). The record demonstrates studies were done over a long period of time on the various available sites for the Facility. R XVI 3905. The studies took into account such factors as zoning, highway accessibility, proximity to the centroid of garbage production, proximity to energy markets, hauling costs, adverse effect on wetlands, availability of onsite facilities like railroads and proximity to residential communities. R XVI 3906. Parcels of land outside Bergen County were analyzed depending on zoning, access to highways, hauling costs and proximity to reservoirs. R XVI 3905. The Corps was neither arbitrary nor capricious in accepting studies based on such factors. Most of the factors such as access to roads, proximity to the centroid and access to energy markets all impact on logistic as allowed by 40 C.F.R. § 230.10(a)(2). The other criteria impact on costs of the project. Plaintiffs especially object to the use of zoning and proximity to residential areas as criteria.14 They argue that the Corps should be precluded from using local zoning to locate practicable, alternative sites. Such a position is untenable. An incineration plant of considerable size which generates numerous daily trips by truck to and from its site cannot practicably be placed on any piece of property. Only a property which could "reasonably be . . . utilized . . . in order to fulfill the basic purpose of the proposed activity need be considered by the applicant." Id. Plaintiffs claim that the use of zoning as a factor in locating practicable sites allows localities to preempt the federal policy of preserving wetlands in violation of the Supremacy Clause of the Constitution.15 However, there is no federal law preempted by the Corps use of zoning as a criteria in selecting sites. The guidelines specifically state an applicant for a permit must only acquire a piece of property if it "could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity." 40 C.F.R. § 230.10(a)(2) (emphasis added). The federal policy of preserving wetlands does not come into conflict with local laws because the applicant cannot reasonable [sic] utilize property for an industrial purpose if it is not zoned properly. Zoning is simply not an illegitimate consideration when determining a site's practicability. See Bersani v. United States Environmental Protection Agency, 674 F. Supp. 405, 417 [18 ELR 20001] (N.D.N.Y. 1987) aff'd 850 F.2d 36 [18 ELR 20874] (2d Cir. 1988); Ashwood Manor Civic Ass'n v. Dole 619 F. Supp. 52, 78-79 [16 ELR 20112] (E.D. Pa.) (local land use valid criteria) aff'd mem. 779 F.2d 41 (1985) cert. denied 475 U.S. 1082 (1986); National Audubon Society v. Hartz Mountain Development 14 Envtl. L. Rep. 20724, 20731 (D.N.J. 1983). The decision by the HMDC to refuse a zoning change, upheld during court challenge, made the use of the Lyndhurst, North Arlington and Rutherford Sites impracticable. The criteria used by the Corps need not be perfect; all that is required is a rational basis for the decision. Friends of the Earth 800 F.2d at 831. The site selection process here meets this standard. In their submissions Plaintiffs contend that if the factors of zoning, residential proximity, access to highways and hauling costs are stripped away other sites are available. Plaintiffs' Brief at 20-21. While this may be true, it is tantamount to stating "if the Corps ignores cost and logistics other sites are available." The applicable regulations, however, require the Corps to take these issues into account when reviewing permit requests.16 The Corps did not ignore alternate sites as Plaintiffs assert. All sites both inside and outside Bergen County were scrutinized and rejected for a variety of reasons. The Corps allowed public comment and even had the BCUA conduct studies of sites smaller than it considered necessary for the Facility. R XVI 3905. Any site brought to the attention of the Corps was examined as a possible alternative. The Corps also addressed the concerns of all other federal agencies. At the suggestion of the EPA and the USFWS the Lyndhurst and North Arlington Sites were reexamined for practicability. The zoning and construction problems associated with each site convinced these agencies they were not bona fide alternate sites. Accordingly, as mentioned, the Corps decision that no alternative sites were available is neither arbitrary nor capricious. The record before the court consists of sixteen volumes and many appendixes chronicling more than four years of investigation into the Ridgefield Site. Nonetheless Plaintiffs express dissatisfaction with its adequacy. The Plaintiffs claim the record is deficient because it lacks transcripts of some meetings between the Corps and other federal agencies and [sic] well as BCUA. In addition, [20 ELR 21394] Plaintiffs contend neither the EPA nor NMFS explained why they changed their opinion as to the Ridgefield Site. An administrative record is only inadequate for purposes of judicial review if "there was such failure to explain [the agency's] action as to frustrate effective judicial review." Camp v. Pitts, 411U.S. 138, 142-43 (1973). The record is given a presumption of validity. See Overton Park 401 U.S. at 415; Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 [3 ELR 20287] (5th Cir. 1973). None of the alleged inadequacies Plaintiffs' detect in the record overcomes the presumption against supplementation of the record. The APA does not require transcripts be made of every meeting held between agencies and applicants. The Plaintiffs do not point to any missing data that transcripts of these meetings might reveal. Similarly the record is quite clear that the EPA, USFWS and NMFS altered their positions on the Ridgefield Site after examining the studies of the Lyndhurst and North Arlington Sites and after receiving assurances that no permit would be issued without the condition that remaining wetlands were to be enhanced. See R XIV 3383, 3394, 3814, RXII 2952. Although the review here is of the Corps' decision not that of the EPA or any other agency, throughout the process the agencies were concerned with the impact building the Facility would have on wetlands. All were convinced no practicable alternative existed and that mitigation efforts would be adequate.17 The record is sufficient for review and rationally supports the Corps' decision to grant the BCUA and Ref-Fuel the Permit. The Corps is required by 33 C.F.R. § 320.4(b)18 to take the public interest into account when reviewing permit applications. If, as here, the project complies with EPA guidelines the district engineer of the Corps will issue a permit unless he determines it would be contrary to the public interest. Id. In their Complaint, Plaintiffs charge that issuing the Permit was not in the public interest. The Complaint states that the DEP has not yet issued a permit for the Facilities residual landfill site, that although the DEP issued an air emission permit to the BCUA it does not meet BACT requirements, that Ref-Fuel is barred by the Disclosure Act from operating a solid waste facility, that 42 U.S.C. § 703 requires an emission offset be acquired before construction of the Facility can begin and therefore granting a permit is not in the public interest. Complaint PP34-36. Plaintiffs' submissions on these motions pressed none of these contentions. The Corps, in its brief, however, responded to every contention in Plaintiffs' Complaint. Corps' Brief at 26-32. The Corps' motion for summary judgment on these issues is therefore unopposed. Moreover none of these reasons to deny the Permit was presented to the Corps during its review of the application and therefore raising them here is inappropriate. See Wilson 758 F.2d at 1373. In any event as the Corps points out final action by the Corps is not normally delayed pending final action of another agency. 33 C.F.R. § 325.2(d)(4). In addition the BACT issue was decided in Stream Encroachment. That court also upheld the granting of temporary permits to Ref-Fuel under New Jersey law. Id. 231 N.J. Super. at 458-59. Lastly, the Facility, under its present air pollution control permit, must obtain approved emission offsets before commencing operation. R XIII at 3288. Its construction under these circumstances is not contrary to the public interest. For the foregoing reasons the Defendants' motions for summary judgment are granted, the Plaintiffs' motion for summary judgment or to supplement the record is denied. An appropriate order accompanies this motion. 1. By stipulation, dated 19 March 1990, John O. Marsh, Secretary of the Army, the United States Environmental Protection Agency, William K. Reilly, Administrator of the United States Environmental Protection Agency and William J. Muszynski, Acting Regional Administrator, Region II, United States Environmental Protection Agency were voluntarily dismissed from the case. 2. In support of their summary judgment motion Plaintiffs submitted: Plaintiffs' Brief in Support of Motion for Summary Judgment ("Plaintiffs' Brief"); Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment: Reply Brief of Plaintiffs' ("Plaintiffs' Reply"); Certification of Stefanie A. Brand with attached Exhibits A-C. In support of its summary judgment motion and in opposition to Plaintiffs' summary judgment motion the Federal Defendants submitted: Brief in Support of Federal Defendants' Motion for Summary Judgment ("Corps' Brief"); Brief in Opposition to Plaintiffs' Motion for Summary Judgment. In support of their joint motion for summary judgment and in opposition to Plaintiffs' summary judgment motion BCUA and Ref-Fuel submitted: Memorandum of Law of the Bergen County Utilities Authority and American Ref-Fuel Company of Bergen County in Support of Motion for Summary Judgment; Memorandum of Law of the Bergen County Utilities Authority and American Ref-Fuel Company of Bergen County in Opposition to Plaintiffs' Motion for Summary Judgment or to Supplement the Record ("Bergen Opposition"); Reply Memorandum of Law of the Bergen County Utilities Authority and American Ref-Fuel Company of Bergen County in Support of Joint Motion for Summary Judgment ("Bergen Reply"); Affidavit of Mark A. Chertok ("Chertok Aff.") with attached Exhibits A-D and 12(g) statement. Also relevant to the summary judgment motions is the administrative record, volumes 1-16 ("R. , at "), and Appendix 1-15. Oral argument was heard in this matter on 25 June 1990 ("Tr. "). 3. 33 U.S.C. 1344 states in pertinent part (a) The Secretary [of the Army acting through the Chief of Engineers] may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. (b) Subject to subsection (c) of this section, each disposal site shall be specified for each such permit by the Secretary (1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary. . . . 4. In addition to these two opportunities to comment, on 4 June 1986 after the initial period for comment had closed, Ridgefield submitted additional comments to the Corps. R IX at 2219, 2184-87. This opposition stated that sites between twenty and forty-five acres should be examined by the applicant. Id. at 2187. Such studies were then done at the Corps request and no alternative sites were found. R VIII 1913. 5. Recycling was considered but the average recovery of waste provided by this method in the United States is twenty to thirty percent, far below the Facility's ninety percent mark. R XVI at 3903. The best recycling program has recovered in the country is fifty percent. Id. 6. The waste production centroid is the geographic center of waste production in Bergen County. Bergen Opposition at 22 n.15. 7. In addition Plaintiffs commenced a suit against the BCUA in November of 1987 in the Superior Court of Bergen County, Law Division. Division of Ridgefield and Veale v. the Board of Chosen Freeholders of the County of Bergen and the Bergen County Utilities Authority, No. L-40301-87 (Sup. Ct. Bergen County, 8 November 1987) ("Freeholders Suit"). The Freeholders Suit claimed the Plan was invalid as practicable alternative sites were available. North Arlington was mentioned as an alternate site. Freeholders Suit Complaint P20. The case was dismissed by stipulation on 6 May 1988. Chertok Aff., Exhibit B. 8. 28 U.S.C. 1738 states in pertinent part: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 9. New Jersey's "Entire Controversy Doctrine" is broader than traditional res judicata principles. Federal courts must utilize the entire controversy doctrine in cases of claim preclusion. O'Shea v. Amoco Oil Co., 886 F.2d 584, 591 (3d Cir. 1989). However, the claim over the issuance of the Permit by the Corps did not arise until the state court litigation had been brought. Therefore, it cannot be stated plaintiffs should have brought the claim but did not. See O'Shea, 886 F.2d at 594. As discussed infra at 23, the analysis in the case sub judice focuses on issue preclusion which can apply when claim preclusion does not. Id. at 593-594. 10. The Supreme Court has held that issue and even claim preclusion may apply even if a claim is in the exclusive jurisdiction of the federal courts as long as state law would allow such preclusion. See Marrese v. American Academy of Ortho. Surgeons, 470 U.S. 373, 381, 385 (1985). 11. In Stream Encroachment the court held that a solid waste facility permit could be issued to Ref-Fuel under the Disclosure Act of the New Jersey Solid Waste Management Act ("Disclosure Act") N.J.S.A. 13:1E-126 et seq. by the DEP. The court also held that the best available control technology ("BACT") which reduces particulate matter to .015gn/dscf is acceptable under both state and federal law. Id. 231 N.J. Super. at 463. In their papers BCUA and Ref-Fuel pointed out that Plaintiffs had not opposed their assertion of issue preclusion on these issues. Bergen Reply at 1. n.1. The Plaintiffs are precluded from arguing BACT would produce an emission standard of less than .015gn/dscf. They are also precluded from arguing Ref-Fuel should not or cannot be issued a permit under the Disclosure Act. 12. 40 C.F.R. § 230.10(a) states, in pertinent part: (a) Except as provided under § 404(b)(2), no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have adverse environmental consequences. (b) An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basis purpose of the proposed activity may be considered. 13. Plaintiffs also claim that the Corps did not adequately consider the no action option which would perpetuate the status quo of sending solid waste out of state. This contention is incredible given that the record is replete with the inadequacy of the no action option and its deleterious environmental and economic effects. See e.g., R XIV 3484. Plaintiffs argue the waste is presently sent out of state and would still be sent out of state after the North Arlington Site is filled. Plaintiffs' Reply at 12-13. The Facility will reduce the volume of the waste ninety percent, a considerable and important improvement over no action. 14. Plaintiffs' attitude to the use of zoning as a criteria in assessing practicability is not consistent. In Plaintiffs' Complaint they state "the HMDC's refusal to grant a zoning change is a factor, but not automatic grounds for exclusion in consideration of practicable alternatives for a section 404 application." Id. at 17 (emphasis added). However, later they flatly state: "Zoning means nothing. It is an illegitimate criteria and must be rejected by the court." Plaintiffs' Reply at 12. 15. U.S. Const. art. VI, cl. 2 states This Constitution, and the Laws of the United States which shall be made in Pursuance, thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 16. Although zoning may be a sufficient reason to render a site impracticable no site was rejected on the basis of only one criteria. See R VII at 1910, XIV at 3389-91. 17. The EPA may exercise a veto over a permit's issuance if it believes granting such a permit would have an adverse affect [sic] on the environment. 40 C.F.R. § 231.1. 18. 33 C.F.R. § 320.4(a) states in pertinent part The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest . . . . The benefits which reasonably may be expected to accure from the proposal must be balanced against its reasonably foreseeable detriments. 20 ELR 21387 | Environmental Law Reporter | copyright © 1990 | All rights reserved |