City of Des Plaines v. Metropolitan Sanitary Dist. of Chicago

• Decision Date: 22 March 1977
• Docket Number: No. 76-1847,76-1847
• Citation: 552 F.2d 736
• Parties: , 7 Envtl. L. Rep. 20,389 CITY OF DES PLAINES, a Municipal Corporation of Illinois, Plaintiff-Appellant, v. The METROPOLITAN SANITARY DISTRICT OF CHICAGO, a Municipal Corporation of Illinois, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 736

552 F.2d 736

10 ERC 1253, 7 Envtl. L. Rep. 20,389

CITY OF DES PLAINES, a Municipal Corporation of IllinoisPlaintiff-Appellant, v.The METROPOLITAN SANITARY DISTRICT OF CHICAGO, a Municipal Corporation of Illinois, et al., Defendants-Appellees.

No. 76-1847.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1976.

Decided March 22, 1977. ^*

Robert S. Minetz, Des Plaines, Ill., for plaintiff-appellant.

Samuel K. Skinner, U.S. Atty., Floyd Babbitt, Asst. U. S. Atty., Charles W. Boyd, Allen S. Lavin, Vincent P. Flood, James B. Murray, Robert B. Schaefer, Alvin Liebling, Chicago, Ill., Edward C. Hofert, Des Plaines, Ill., for defendants-appellees.

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

PELL, Circuit Judge.

The City of Des Plaines(the City) sued the Metropolitan Sanitary District of Greater Chicago(MSD), the United States Environmental Protection Agency(EPA), and Francis T. Mayo, in his capacity as EPA Regional Administrator for Region 5, alleging that two final Environmental Impact Statements (EIS's) issued by EPA in conjunction with MSD's proposed construction, with federal funding assistance, of the O'Hare Water Reclamation Plant and Solids Pipeline and the O'Hare Service Area Wastewater Conveyance System failed to comply with the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and particularly with 42 U.S.C. § 4332(2)(C).The district court granted defendants' summary judgment motions and entered judgment against the City.The City appeals from this judgment, and also from limitations placed on its desired discovery of the federal defendants and the district court's refusal to strike the affirmative "unclean hands" defense of MSD and an intervening defendant, the Village of Elk Grove.

Our review of the adequacy of an EIS and of the merits of a decision reflected therein, while careful, has real limits.On the merits, "(t)he review should be limited to determining whether the agency's decision is arbitrary or capricious."Sierra Club v. Froehlke, 486 F.2d 946, 953(7th Cir.1973);and seeCitizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136(1971).Because so much of the City's argument seems to be little more than a rehashing of claimed conflicting positions on the merits, we are constrained to note that by no stretch of the imagination can EPA's decision to approve the projects in question be considered arbitrary or capricious.

Our review of the adequacy of the EIS to comply with the requirements of 42 U.S.C. § 4332(2)(C), however, is less summary in nature for that section's requirement that decisionmakers give full and fair consideration to the environmental consequences of proposed actions is close to the heart of NEPA.Accordingly,

(t)he detailed statement of the environmental consequences required by § 102(of NEPA)(42 U.S.C. § 4332)"must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation."Environmental Defense Fund v. Hardin, 325 F.Supp. 1401, 1403-1404(D.D.C.1971).

Stated slightly differently, the statement must provide "a record upon which a decisionmaker could arrive at an informed decision."Environmental Defense Fund v. Corps of Eng., U.S. Army, 342 F.Supp. 1211, 1217(E.D.Ark.1972), aff'd(8th Cir.), 470 F.2d 289.

Sierra Club v. Froehlke, supra, 486 F.2d at 950.On the other hand, an EIS adequacy review is conceptually limited to such considerations.It does not open the back door to reargument of the merits of the decision proposed by the EIS:

Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.(Citation omitted.)The only role for a court is to insure that the agency has taken a "hard look" at environmental consequences; it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken."Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 838(1972).

Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576(1976).We have reviewed the EIS's at issue here and we conclude that under these principles they adequately complied with 42 U.S.C. § 4332(2)(C).

In the City's less than concise statement of its objections to EIS adequacy, we perceive three basic arguments, each of which must be rejected.First, the City contends that EPA impermissibly delegated its responsibilities under § 4332(2)(C) to MSD.To be sure, a number of the appendices contained in volume II of the EIS were prepared by MSD, but we find no impropriety therein so long as EPA independently performed the "impartial assessment of environmental consequences which lies at the heart of the National Environmental Policy Act."Swain v. Brinegar, 517 F.2d 766, 779(7th Cir.1975), modified, 542 F.2d 364(7th Cir.1976)(en banc).We believe there can be no substantial question of the fact that EPA performed this function here.MSD did not prepare the pertinent analytical portions of the EIS, EPA did.Moreover, EPA solicited the views of several knowledgeable experts as well as those interested parties on its mailing list on the potential health hazards asserted by the City, and it plainly considered the responses obtained in its analysis.

The City argues, secondly, that the EIS's were misleading because they did not disclose the initial recommendation of an EPA team that a different site for the Water Reclamation Plant, not bordering on the City, be used.We do not think the failure to disclose this recommendation materially affects the adequacy of these EIS's, although it would have been a better procedure at least to make reference to it in the EIS's.SeeCommittee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783, 787(Cir.1971)(per curiam), application for injunction in aid of jurisdiction denied, 404 U.S. 917, 92 S.Ct. 242, 30 L.Ed.2d 191.The important point is that the EIS's contained meaningful data and analysis to identify the problem at hand for the responsible reviewing official, seeid. at 787, without omitting reference to responsible opinion reaching different conclusions than did the EIS's.The substantial input of the City and others opposing the site selection ultimately made were set out in full and analyzed intelligently.We cannot say that in these circumstances more was required.

The City's third and most substantial argument is that bacterial and viral aeration will occur from the uncovered aeration tanks to be used in the project and that this may create a health hazard for City residents living nearby.We re-emphasize that our review of EIS adequacy does not encompass the merits of the position taken therein by EPA.As to the procedure followed, we believe it is clear from the material of record that EPA took the requisite hard look at this problem and reacted sensitively to it.EPA summarized in its analysis the data available (which was set out in full in appendices) and stated its reasonable conclusion that no definitive answer could be made to the question of asserted health hazards from aeration.In response to the mere possibility that such hazards might be present in unregulated aeration, EPA took a conservative approach and required MSD to design, construct, and install devices to suppress aerosol emissions.The...