Highway J Citizens Group v. Mineta

• Decision Date: 05 November 2003
• Docket Number: No. 03-2644.,03-2644.
• Citation: 349 F.3d 938
• Parties: HIGHWAY J CITIZENS GROUP, Plaintiff-Appellant, v. Norman MINETA, in his official capacity as Secretary, United States Department of Transportation; Frederick Wright, in his official capacity as Executive Director, Federal Highway Administration; Thomas E. Carlsen, in his official capacity as Acting Secretary, Wisconsin Department of Transportation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

349 F.3d 938

HIGHWAY J CITIZENS GROUP, Plaintiff-Appellant, v. Norman MINETA, in his official capacity as Secretary, United States Department of Transportation; Frederick Wright, in his official capacity as Executive Director, Federal Highway Administration; Thomas E. Carlsen, in his official capacity as Acting Secretary, Wisconsin Department of Transportation, Defendants-Appellees.

No. 03-2644.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2003.

Decided November 5, 2003.

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Robert B. Corris, Milwaukee, WI, for Plaintiff-Appellant.

Charles A. Guadagnino, Office of the United States Attorney, Milwaukee, WI, Frank D. Remington, Office of the Attorney General, Madison, WI, for Defendant-Appellee.

Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

On July 3, 2003, the Highway J Citizens Group ("Citizens") filed this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; regulations implementing NEPA; and the Wisconsin Environmental Policy Act ("WEPA"), Wis. Stat. § 1.11 & Wis. Adm.Code ch. TRANS § 400 et seq. The named defendants were Norman Mineta, in his official capacity as Secretary of the United States Department of Transportation ("U.S.DOT"); Frederick Wright, in his official capacity as Executive Director of the Federal Highway Administration ("FHWA"); and Thomas E. Carlsen, in his official capacity as Acting Secretary of the Wisconsin Department of Transportation ("WDOT") (collectively "defendants").¹

Citizens challenged the Ackerville Bridge/Lovers Lane Project, Project # 2748-01-00 ("Ackerville Bridge Project") and the County J/Highway 164 Project, Project # 2748-01-01 ("County J/Highway 164 Project"). According to the complaint, a "contamination plume" containing arsenic and trichlorethylene ("TCE") is migrating toward the site of the Ackerville Bridge. Among other things, Citizens asked the district court (1) to enjoin the FHWA and WDOT from proceeding with the Ackerville Bridge Project until the location and extent of the contamination plume was determined, (2) to order the FHWA and WDOT to pump grout around the perimeter of pilings that have been driven into the ground to support the Ackerville Bridge, and (3) to require the FHWA to prepare an Environmental Impact Statement ("EIS") for the Ackerville Bridge Project. On June 12, 2003, the United States District Court for the Eastern District of Wisconsin denied Citizens' motion for a preliminary injunction and then ruled against Citizens on the merits. On June 13, 2003, the district court denied Citizens' expedited motion for stay pending appeal.

Citizens filed its notice of appeal on June 17, 2003. It then asked this court for an emergency injunction to prevent the opening of the Bridge. This court denied the requested relief, but granted Citizens' motion for an expedited appeal. In this appeal, Citizens seeks (1) a permanent injunction requiring closure of the Ackerville Bridge until grout is pumped around the pilings, (2) an EIS of the Ackerville Bridge Project, and (3) a revised EIS of the County J/Highway 164 Project that encompasses the area of the Ackerville Bridge Project and a permanent injunction prohibiting the County J/Highway 164 Project from proceeding until the revised EIS is completed. For the reasons set forth in this opinion, we must deny Citizens the requested relief and affirm the judgment of the district court.

I BACKGROUND

A. Facts

There are two projects at issue in this case; both are "major federal action[s]" as defined in 40 C.F.R. § 1508.18. Highway J Citizens Group is an unincorporated association of residents of Waukesha and Washington Counties in Wisconsin who are "committed to preserving the beauty, tranquility, and environment of the area." R.1 at ¶ 1. Specific to this litigation, Citizens also includes persons "who live in the area of the proposed Ackerville bridge and whose water supply is threatened with contamination from arsenic and TCE as a result of the proposed Ackerville bridge project." R.1 at ¶ 1. Thus, Citizens' focus in this case is Project # 2748-01-00, the Ackerville Bridge Project. Project # 2748-01-01, the County J/Highway 164 Project, is relevant to this litigation only because Citizens believes that it was improperly segmented from the Ackerville Bridge Project.

1. The Ackerville Bridge Project (Project # 2748-01-00)

There are three purposes for the Ackerville Bridge Project. The "primary purpose" is to address safety considerations flowing from the layout of the roads and the close proximity of the railroads. R.38, Ex.1003, A.R. at 00004. Another purpose is to bring the existing facility into compliance with State Trunk Highway standards, which govern the necessary requirements for a road to support truck traffic. Id. at 00013. A "secondary purpose" is to provide for future expansion of the roadways due to increasing traffic in the region. Id. at 00004. To affect these purposes, the plan provides

an overpass structure ... to be built at the Wisconsin Central Limited and the Wisconsin Southern Railroads in order to remove the existing at-grade crossings. The Sherman Road/Fond du Lac Drive connection would also be located under this structure. An additional overpass would be provided at State Highway 175.

Id. at 00012.²

The environmental assessment ("EA") for this Project was signed by various state and federal officials between October 29, 1999, and December 12, 1999, and was open for public comment from February 22, 2000, to April 7, 2000. Id. at 00004. The EA as originally published did not contain a discussion of the former waste disposal facility ("landfill") near the Project that was owned by Waste Management Company of Wisconsin, Inc. This landfill is located about 2,000 feet northwest of Ackerville and is leaking "landfill leachate" which has contaminated the underlying groundwater that flows from the landfill. As the contaminated groundwater flows, the contamination can spread or disperse, and this dispersed contamination is known as "contamination plume."

The effect of this contamination plume on the Ackerville Bridge Project was brought to the attention of the defendants by Jeffrey Gonyo, a member of Citizens, sometime during, and possibly before, February of 2000. R.38, Ex.1013, A.R. at 00838 (Wade e-mail); R.38, Ex.1005, A.R. at 00146-00147 (draft "Fact Sheet/Topics of Interest"). Defendants' initial conclusion was that the contamination plume did not raise significant concerns in relationship to the Ackerville Bridge Project. For example, in a February 21, 2000 document entitled "Fact Sheet/Topics of Interest," defendants stated:

• The Waste Management Landfill-Hazardous Materials. If there is contamination in the shallow groundwater, couldn't the structure pilings create a "channel" to contaminate [sic] the deep groundwater where our drinking water comes from?:

• Acknowledge that both Wisconsin Department of Natural Resources and WDOT are aware of the concerns relating to the Polk Landfill. You can thank Mr. Gonyo for helping to bring the issue to the forefront.

• WDOT will be addressing the contaminant concerns relating to the STH 164 project as part of the Phase 1 hazardous materials assessment. The assessment will evaluate [W]DNR documents about the landfill and assess what impact may be associated with the highway project activities. The WDOT will coordinate with the WDNR as needed. The report will include any recommendations that may be needed to address [hazardous materials] concerns.

• The Phase 1 Assessment Report will become a public document available for review.

• Though preliminary assessment of available information has led [sic] both [W]DNR and WDOT to think there are not likely to be significant project hazmat concerns related to the Polk Landfill, it would be premature to make definitive statements until the Phase 1 report is completed.

R.38, Ex.1005, A.R. at 00143-00144 (italics in original). A previous, draft version of that document, dated February 15, 2000, addressed the environmental question posed as follows:

• This landfill was closed in the 1980's. Since that time, extensive monitoring and remediation has taken place. There has been some concern regarding the ground water contamination spreading in the direction of Lovers Lane Road. However, the project requires limited excavation in the area (footing for substructure units of the bridge) and encounters with ground water is unlikely.

R.38, Ex.1008, A.R. at 00146. In a March 14, 2000 letter from Ken Wade, Hazardous Materials Engineer for the Environmental Team, Transportation District 2 of WDOT, to EMCS Design Group, Mr. Wade noted:

I've attached copies of the latest landfill data collected by Waste Management. It clearly confirms that the concentration of [TCE] nearest the project area is decreasing and stable. The groundwater monitoring well nearest the project corridor is TW23R, located approximately 400 feet west of CTH J. TCE concentrations in well TW23R have dropped from 3 to 2.2 ug/l, well below the WDNR groundwater enforcement standard of 5 ug/l.

The water table for this region is approximately 30 feet below the ground surface. If construction plans for the footings require only 4 to 5 feet of excavation, it is very unlikely that contaminated groundwater will impact the project.

It is also unlikely that project pilings or water detention/infiltration basins will cause an impact on plume movement or concentrations.

R.38, Ex.1009, A.R. at 00728.

At the March 23, 2000 public hearing on the Ackerville Bridge Project, Mr. Gonyo testified in opposition to the Project. Among other things, he identified the landfill as a source of contamination that the Project threatened to aggravate. With the aid of numerous exhibits, he testified that: (1) the Project goals could be accomplished by...