Opposition — Lake Erie Alliance for the Protection of the Coastal Corridor, Inc. v. United States Army Corps of Engineers

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SEP 27 19°

No. 83-136 ALZXANOTR L. STEVAS,

In the Supreme Court of the Wnited States

OCTOBER TERM, 1983

LAKE ERIE ALLIANCE FOR THE PROTECTION OF THE

COASTAL CORRIDOR, INC., ET AL., PETITIONERS

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

Rex E. Lee

Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

RAYMOND N., ZAGONE

MARTIN GREEN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the court of appeals correctly upheld the district

court's determination, ona motion for summary judgment,

that the Corps of Engineers had fully complied with the

National Environmental Policy Act and all other applicable

laws in issuing a permit to United States Steel Corp. to

construct channels, piers, and water intake and discharge

structures in Lake Erie.

(I)

TABLE OF CONTENTS

Page

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Statutes and International Agreement involved ...... l

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ENG cvbcvinbelwcunenseuecneceeenee ewes 24a

PE EP Sc cp scatsennruecddnecteenaseaeeens 28a

TABLE OF AUTHORITIES

Cases:

Cay ¥. BROUOG, Fal FA FOO ccccccsscccccce 10

oo lUe Se UU a ererrrerr rrr rT 6

Cape Henry Bird Club vy. Laird, 359 F. Supp.

404, aff'd 484 F.2d 453 oo... e eee 13

County of Suffolk v. Secretary of the Interior,

562 F.2d 1368, cert. denied, 434 U.S. 1064 ... 6,7

Kleppe v. Sierra Club, 427 U.S. 390 .....ceeees 8

lake Erie Alliance v. McAvoy, No. EBR 79-63

(Jan. 4, 1980), aff'd, No. 80AP 105 (Franklin Co.,

Ohio Ct. App. Aug. 28, 1980) cert. denied,

CEPR, Fe Be 6 cs Wawk wdaeedanwcaenseaaean 12

Life of the Land vy. Brinegar, 485 F.2d 460,

GONE. GORING, SOO UB. FOE aac c cccccevevcassst 9

(III)

IV

Page

Cases—Continued:

Manygoats v. Kleppe, 558 F.2d 556 ..........: 13

Sierra Club v. Lynn, 502 F.2d 43, reh’g denied,

504 F.2d 760, cert. denied, 421 U.S.994....... 9

Strycker’s Bay Neighborhoos Council, Inc. v.

PP, GEO Bi Ee. co cccvcccsscvessveares 5,8

Upper West Fork River Watershed Ass'n v. Corps

of Engineers, 414 F. Supp. 908, aff'd, 556 F.2d

576, cert. denied, 434 U.S. 1010 ..........006. 6

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S.

PR se aeeh see skeeeseRe EpeeeeeUKn cams ceed 5

Weinberger v. Catholic Action of Hawaii,

PC EEE desc cctcntredncesdt cxeteabewen 8

Treaty and statutes:

Agreement on the Great Lakes Water Quality,

Nov. 22, 1978, United States-Canada, 30 U.S.T.

SG EA PO ET vc csccucedeusaeees 2,11

Administrative Procedure Act, 5 U.S.C. 701

JF rere ee eer er ereeryeTrrerrerrerr erry 3

Clean Water Act, Section 401(a)(1), 33 U.S.C.

oo et) errr rrrerr rrr Terrier 3

Federal Water Pollution Control Act, 33 U.S.C.

it Bybee f Ser errerry 2,3

Section 401, 33 U.S.C. (& Supp. V) 1341 ... 12

Fish and Wildlife Coordination Act,

Oe es OE IR, Secs ncanncaewe oh a2, 2 &

Page

Treaty and statutes—Continued:

Migratory Bird Act, 16 U.S.C. 701 et seq. ....... 3

National Environmental Policy Act of 1969,

42 U.S.C. 4321 et seq. ........ a, 8, oe 11,15

section 102, 42 U.S.C. 4332 ...ccccescveces 2

Miscellaneous:

Op. EPA Gen. Counsel No. 78-8 (Apr. 19,

i APR yA ei Beek ees REBUM e eR seis RAE e rina e 12

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-136

LAKE ERIE ALLIANCE FOR THE PROTECTION OF THE

COASTAL CORRIDOR, INC., ET AL., PETITIONERS

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the United States District Court for the

Western District of Pennsylvania (Pet. App. A-141 to A-

177) is reported at 526 F. Supp. 1063. The judgment orders

of the court of appeals (Pet. App. A-123, A-126 and A-127)

are not reported.

JURISDICTION

The judgment order of the court of appeals was entered

on February 16, 1983 (Pet. App. A-127). A petition for

rehearing was denied on March 11, 1983 (Pet. App. A-129).

The petition for a writ of certiorari was filed on June 9,

1983. The jurisdiction of this Court is invoked under 28

U.S.C, 1254(1).

STATUTES AND INTERNATIONAL AGREEMENT INVOLVED

The statutes and international agreement relied upon by

the petitioners are:

(1)

2

1. The National Environmental Policy Act of 1969, 42

U.S.C. 4321 et seq., portions of which are set forth at Pet.

App. A-74 to A-82;

2. The Federal Water Pollution Control Act, 33 U.S.C.

(& Supp. V) 1251, portions of which are set forth at Pet.

App. A-84 to A-87;

3. The Fish and Wildlife Coordination Act, 16 U.S.C.

661 et seq., portions of which are set forth at Pet. App. A-88

to A-91; and

4. The Agreement on the Great Lakes Water Quality,

Nov. 22, 1978, United States-Canada, 30 U.S.T. 1383,

T.1.A.S. No. 9257, set forth at Pet. App. A-93 to A-120.

STATEMENT

On March 2, 1977, United States Steel submitted an

application to the United States Army Corps of Engineers

for a permit to construct certain channels and piers in Lake

Erie to be used in connection with a new steel plant to be

constructed on the shore of the lake between Conneaut,

Ohio, and West Springfield, Pennsylvania. United States

Steel also applied for permission to build structures that

would be used to withdraw and discharge water from the

lake during the operation of the plant.

The Corps of Engineers immediately commenced the

preparation of a statement on the environmental impact of

the proposed action, as required by Section 102 of the

National Environmental Policy Act of 1969 (“NEPA”), 42

U.S.C. 4332. The Corps established a Technical Team,

composed of representatives of the Corps, the United States

Environmental Protection Agency, the United States Fish

and Wildlife Service, the Federal Regional Counsel, the

National Marine Fisheries Service, the State of Ohio and

the Commonwealth of Pennsylvania. Two years later, on

April 26, 1979, the Technical Team completed and filed

3

with the Environmental Protection Agency a Final Envir-

onmental Impact Statement (“FEIS”). The activities taken

by the team in the course of preparing the FEIS are sum-

marized in Appendix A to this Brief.' The FEIS itself is

3,470 pages in length. On June 18, 1979, the Corps issued

the requested permit to United States Steel.

On July 19, 1979, the petitioners, who aver that they are

local residents, environmental groups, concerned citizens,

and members of labor unions threatened with unemploy-

ment as a consequence of the relocation of steel plants, filed

a complaint seeking declaratory and injunctive relief against

the Corps of Engineers because of its alleged failure to

comply with NEPA, the Federal Water Pollution Control

Act, 33 U.S.C. (& Supp. V) 1251 et seqg., the Fish and

Wildlife Coordination Act, 16 U.S.C. 661 ef seq., the

Migratory Bird Act, 16 U.S.C. 701 et seqg., and the Adminis-

trative Procedure Act, 5 U.S.C. 701 er seqg.? Petitioners

sought to rescind the Corps of Engineers’ permit pending

the preparation of a new environmental impact statement.

They also sought revocation of a certification obtained

from the State of Ohio under Section 401(a)(1) of the Clean

Water Act, 33 U.S.C. (Supp. V) 1341(a)(1), that is a prereq-

uisite to the federal permit.

On September 10, 1980, United States Steel intervened as

a defendant. On April 8, 1981, the defendants filed a motion

for summary judgment on the ground that, as a matter of

law, the environmental impact statement prepared by the

Corps of Engineers, and the permit subsequently issued,

were in full compliance with all applicable statutes, and that

the federal actions taken in this matter had not been arbi-

trary, capricious, or an abuse of discretion. The petitioners

'This summary was a part of the appendix filed by the petitioners in

the court of appeals. See C.A. App. 2199-2229.

?An amended complaint was subsequently filed by petitioners, but it

did not differ materially from the original complaint.

4

filed a motion of their own requesting partial summary

judgment, although they argued that the entire case could

not be disposed of by summary judgment because the FEIS

dealt with many disputed matters. After reviewing the peti-

tioners’ many contentions, the district court granted the

government’s motion for summary judgment, denied the

petitioners’ motion for summary judgment, and dismissed

the case (Pet. App. A-141 to A-177). The court noted that

“[w]hile we have been impressed with the conscientious

efforts of [petitioners] to ferret out every possible procedu-

ral deficiency during this two-year process, we have been

even more impressed with the good faith efforts of the Army

Corps of Engineers” (Pet. App. A-176).

The court of appeals, after hearing oral argument, sum-

marily affirmed (Pet. App. A-127).3

3During oral argument, held on January 24, 1983, the court raised the

question whether the case was moot because United States Steel had not

commenced the constrection authorized by the permit, and the permit

expired December 31, 1983. The court requested that United States

Steel (which was not represented by counsel at the argument) indicate

whether it deemed the case to be moot. On January 25, 1983, the court

issued a judgment order, affirming the district court's decision (Pet.

App. A-123). On January 27, 1983, the Chief Deputy Clerk of the court

addressed a letter to United States Steel asking “whether the case is

moot in the corporation's view.” App. B, infra, 22a. On January 31,

1983, the court suspended the judgment order issued on January 25,

1983, and indicated that the “Court continued its desire to receive a

response from United States Steel” (Pet. App. A-126). On February 9,

1983, United States Steel responded, pointing out that the permit

provided for its automatic expiration upon certain conditions, or for its

revocation, and that since the permit had not expired or been revoked

“{iJn the view of USS the Permit is still a valid Permit, and USS wishes

to retain all of its rights under the Permit.” App. C, infra, 26a. On

February 16, 1983, the court of appeals issued another judgment order,

again affirming the judgment of the district court (Pet. App. A-127).

United States Steel has since informed the government that it has no

current intention o! commencing construction under the permit. App.

D, infra, 28a. :

5

ARGUMENT

Review by this Court is unwarranted for the sufficient

reason that this case is, for all practical purposes, moot. The

permit challenged by petitioners expires on December 31,

1983 (Pet. 4, n.1), and United States Steel has informed the

government that it will not commence construction under

the permit prior to its expiration. App. D, infra, 28a. In

these circumstances, further judicial consideration of peti-

tioners’ claims would be imprudent.

In any event, petitioners once more advance arguments

that have been carefully considered and properly rejected

by two lower courts. Petitioners’ fundamental error lies in

their assertion that NEPA imposes the substantive duty

upon federal agencies considering a proposed action to

select “the least environmentally adverse alternative” (Pet.

30). This reading of NEPA, however, is in reality a blueprint

for complete stasis, and is plainly not the law. Virtually

every environmental impact statement ever prepared con-

siders, as one alternat.-e to the proposed action, the possi-

bility of doing nothing; but “doing nothing”—although

frequently the “least environmentally adverse alternative”

to the proposed federal action—is clearly not required by

NEPA. Indeed, in Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council, Inc., 435 U.S. 519,

558 (1978), this Court held that NEPA’s mandate to the

agencies is “essentially procedural,” and in Strycker’s Bay

Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227

(1980), the Court emphasized that NEPA does not require

an agency, in selecting a course of action, to elevate envir-

onmental concerns over other appropriate considerations.

These holdings, dismissed by the petitioners as obiter dictum

(Pet. 26), were expressly followed by the courts below, and

compel the conclusion that petitioners’ numerous conten-

tions are completely without merit.

6

1. Petitioners contend (Pet. 10-19) that they were “unlaw-

fully denied an opportunity to challenge the adequacy of the

[FJEIS prepared by the Corps” because they were not

allowed to present evidence to supplement or contradict the

FEIS. The decisions of the district court and the court of

appeals, however, merely apply the settled rule that when

administrative proceedings—including proceedings involv-

ing the preparation and adequacy of NEPA statements—

are the subject of judicial review, the adequacy of the agency

action must be determined on the basis of the administra-

tive record already in existence, and not some new record

made initially in the reviewing court. Camp v. Pitts, 411

U.S. 138 (1973); Upper West Fork River Watershed Ass'n

v. Corps of Engineers, 414 F. Supp. 908 (N.D.W.Va. 1976),

aff'd, 556 F.2d 576 (4th Cir. 1977), cert. denied, 434 U.S.

1010 (1978).

Petitioners suggest that the Second Circuit has held oth-

erwise (County of Suffolk v. Secretary of the Interior, 562

F.2d 1368 (1977), cert. denied, 434 U.S. 1064 (1978)), and

assert that there is a conflict among the circuits that war-

rants this Court’s attention (Pet. 14). But, contrary to peti-

tioners’ submission, the Second Circuit's County of Suffolk

decision did not hold that the introduction of evidence in

the district court is proper or desirable whenever the ade-

quacy of an FEIS is challenged. Rather, the court held only

that a district court’s ruling allowing the submission of

evidence was not necessarily improper. The court, moreover,

emphasized (562 F.2d at 1385) that “evidence introduced

for the first time in the district court * * * would be proba-

tive only insofar as it tended to show either that the agency's

research or analysis was clearly inadequate or that the

agency improperly failed to set forth opposing views widely

shared in the relevant scientific community.” In this case,

the FEIS sets forth the relevant research and opposing

views fully and candidly; petitioners’ grievance is simply

7

that the agency aid not accept the opposing views.* Conse-

quently, there is no need here for the introduction of addi-

tional testimony like that which was permitted in County of

Suffolk, and that decision is entirely compatible with the

holding in the instant case.

2. Petitioners contend that since there are “genuine

issues of material fact in dispute regarding the adequacy of

the [FJEIS and regarding whether the Corps acted in good

faith in preparing it” (Pet. 19), the district court's entry of

summary judgment was in error. However, petitioners’

assertion that “genuine issues of material fact” remain in

this litigation is plainly incorrect. To be sure, whether or not

the FEIS is adequate is in dispute, but the text of the FEIS

itself is mot in dispute. And, it is eminently within the

purview of the district court to determine, upon a motion

for summary judgment, whether the text of the FEIS is

“adequate.”

The FEIS in the instant case exhaustively considers all of

the alleged possibilities of environmental and economic

harm cited by petitioners. See Pet. 19-26. The environmen-

tal and sociological pros and cons of the proposed activity

are discussed at length. The mere fact that the ultimate

conclusion reached by an FEIS may be earnestly debated,

as petitioners do here, in no way precludes the entry of

‘The Pennsylvania Game and Fish Commission, for instance,

opposed issuance of the permit, and petitioners argued in the district

court that the final decision to issue the permit was wrong because the

Pennsylvania agency recommended against it (Pet. App. A-174). To

this objection, the district court responded (Pet. App. A-175):

The fact that the Pennsylvania Game and Fish Commission

opposed issuance of the permit does not mean that the Corps did

not give “full consideration” or “great weight" to the views of that

agency. It only shows that they gave greater weight to the views of

the majority of the agencies and experts which studied the effects

the plant would have on wildlife.

8

summary judgment ina NEPA case. So longas it is clear, as

it is here, that the federal agency that made the ultimate

conclusion set forth in an FEIS was aware of all relevant

conflicting viewpoints, and made its decision with full

knowledge of those disputes, the underlying goal of NEPA

has been achieved. See Strycker’s Bay Neighborhood

Council, Inc. v. Karlen, supra, 444 U.S. at 227 (NEPA

requires “hard look” at environmental consequences of fed-

eral action but does not impose substantive limitations on

that action).

3. Petitioners also challenge (Pet. 23-26) the good faith

of the Corps in issuing the FEIS in this case. The “two

factual bases” (Pet. 23) for petitioners’ assertion of bad

faith, however, even if true (which we here assume arguendo

solely for the purpose of showing their legal irrelevancy) do

not in any way support a legal conclusion of bad faith.

The first supposed “factual basis” for the Corps’ bad faith

rests upon petitioners’ allegation that United States Steel

intends eventually to build a larger plant than the one for

which the FEIS was prepared. But an impact statement

must address only the action actually proposed--not one

that may be merely contemplated. K/eppe v. Sierra Club,

427 U.S. 390, 406 (1976); Weinberger v. Catholic Action of

Hawaii, 454 U.S. 139, 146 (1981). If the steel plant is ever

expanded, such federal actions as may be required in con-

nection with that expansion will at that time be subject to

NEPA. See Kleppe v. Sierra Club, supra, 427 U.S. at 410

n.20 (“Should contemplated actions later reach the stage of

actual proposals, impact statements on them will take into

account the effect of their approval upon the existing envir-

onment; and the condition of that environment presumably

will reflect earlier proposed actions and their effect”).

The other purported evidence of the Corps’ bad faith is

that the “vast majority” of the information in the FEIS was

supplied by United States Steel (Pet. 25). This revelation,

9

however, is hardly surprising. The plant, if it is ever built,

will be built to specifications established by United States

Steel, and it is from United States Steel, accordingly, that

information with respect to its plans must come. An FEIS,

after all, is a source document for the making of an

informed decision; in a situation such as the one presented

here, there can be no better source of information regarding

the size, scope, and operations of a steel plant than the steel

company itself. See Sierra Club v. Lynn, 502 F.2d 43, 59,

reh'g denied, 504 F.2d 760 (Sth Cir. 1974), cert. denied, 421

U.S. 994 (1975).

Of course the evaluation of appellant's information, and

the agency decision whether to issue the requested permit, is

another matter. But nothing in the record would support a

contention that the Corps failed conscientiously and in

good faith to make an informed and reasoned decision after

consideration of all points of view as reflected in the exhaus-

tive record. Life of the Land vy. Brinegar, 485 F.2d 460, 467

(9th Cir. 1973), cert. denied, 416 U.S. 961 (1974). The record

clearly reveals that while certain technical data (such as the

location and size of the plant, the manufacturing processes

to be used and the immediate physical consequences of

those processes) came principally from United States Steel,

the Technical Team established to produce the FEIS

actively and critically reviewed that material, and in

numerous instances required additional information and

further independent studies.

4. Petitioners contend (Pet. 39) that the Corps failed to

consider “cost data.” Exactly what those “cost data” are,

however, the petitioners do not say. The argument made by

the petitioners below, and apparently now abandoned in

favor of something more nebulous and therefore less easily

refuted, is that the Corps failed to specifically balance the

costs and benefits of the proposed project. But, notwith-

standing petitioners’ protestations, a formal cost-benefit

10

analysis is not required by NEPA. Where the advantages

and disadvantages of a project are fully discussed in the

FEIS, the failure to affix numerical weights to each of these

does not make the FEIS inadequate. Cady v. Morton, 527

F.2d 786, 797 (9th Cir. 1975).5

5. Petitioners assert (Pet. 39-40) that partial alternatives

to the proposed plant were not considered. Again, the peti-

tioners do not define “partial alternatives,” but whatever

such alternatives might include, it is difficult to imagine that

they would differ in essence from, or not be included within,

the many alternatives that were considered during the prep-

aration of the FEIS. As the district court found (Pet. App.

A-154):

The [FJEIS devotes 130 pages to the consideration

of alternatives to the proposed project. These alterna-

tives include no action, rearrangement of plant layout,

alternative process units, alternative plant operation

concepts, alternative sites, alternative processes, alter-

native ancillary facilities, alternative solid waste man-

agement systems, alternative operation and mainte-

nance methodologies, alternative intake and discharge

systems, alternatives to the original proposal to fill and

divert Turkey Creek, and alternative pier extension

and dock design[s]. Alternative “Brownfield” sites in

Chicago, Illinois, Gary, Indiana, Youngstown and

Lorain, Ohio were considered. Greenfield sites along

the Great Lakes Shoreline in Indiana, Illinois, New

York, Ohio and Pennsylvania were studied. All were

‘In any event, cost-benefit analyses, helpful as they are when the costs

are paid by and the benefits inure to governmental entities and their

constituents, are of less significance when the costs are paid by private

parties (here United States Steel) while the benefits are evaluated not

from the point of view of the private entrepreneur, but from the point of

view of the community in general.

rejected because the Corps determined that, although

feasible for some degree of industrial expansion, they

offered no advantage over the Conneaut site due to

social, economic and environmental problems.

6. Petitioners contend (Pet. 42) that the Corps failed to

give sufficient consideration in the FEIS to the Agreement

on the Great Lakes Water Quality, Nov. 22, 1978, United

States-Canada, 30 U.S.T. 1383, T.1.A.S. No, 9257. As the

district court noted, however, the FEIS referred to the

terms of the agreement, discussed how compliance with the

agreement would be enforced, and, after comparing the

predicted discharge of the planned steel mill with the stand-

ards set forth in the agreement, concluded that the proposed

activity was consistent with the agreement (Pet. App. A-167

to A-168). NEPA requires nothing more.®

7. Petitioners contend (Pet. 43) that the FEIS did not

address the environmental impacts of expanding a raw

materials handling facility owned by the Pittsburgh and

Conneaut Dock Company, a subsidiary of United States

Steel, in Conneaut Harbor. The district court found other-

wise (Pet. App. A-165), and cited the specific pages on

which these impacts were discussed. It is clear that in this

respect, as in the others above, the FEIS fulfilled its statu-

tory function of bringing to the attention of the decision-

makers the possible environmental consequences of their

proposed action.

8. Petitioners’ allegation (Pet. 44-45) that the Corps did

not consider the effects of potential air and water pollutants

on local vineyards, plant nurseries, and aquatic species in

Lake Erie is palpably incorrect. Pages 5917-5919 and

*Major responsibility for the implementation of the agreement,

moreover, has been assigned to an international joint commission. The

comments of that commission were solicited, but none were received.

12

5927-5931 of the record filed in the court of appeals’ contain

in narrative form a summary of and index to those portions

of the FEIS where these matters were considered.

9. Petitioners contend (Pet. 46-53) that United States

Steel failed to obtain a valid certification from either Ohio

or Pennsylvania, as required by Section 401 of the Federal

Water Pollution Control Act, 33 U.S.C. (& Supp. V) 1341.

But, as the district court held (Pet. App. A-160), United

States Steel has acquired the necessary certification from

the State of Ohio, where the discharge pipe is located, and

does not need a separate certification from the State of

Pennsylvania.®

10. Finally, petitioners contend (Pet. 53-57) that the

Corps violated the letter and spirit of the Fish and Wildlife

Coordination Act, 16 U.S.C. 661 ef seq., by giving little

weight to the views of the federal and state wildlife agencies.

The Corps, however, clearly effected the coordination

required by the Coordination Act. See C.A. App. 3756-

3838, 3839-4047. Indeed, the Corps issued the permit on the

condition that (C.A. App. 5858):

[t]he permittee will implement the fish and wildlife

management plan for the Lake front site as defined in

the final EIS and the December 1978 report prepared

by Fahringer, McCarty, Grey, Inc. [A. V, 2146-2196].

’The record submitted to the court of appeals by the petitioners

comprised 6,071 pages.

*That the State of Ohio has issued the necessary certification has been

conclusively determined by litigation in state court (Lake Erie Alliance

v. McAvoy, No. EBR 79-63 (Jan. 4, 1980), aff'd, No. 80AP 105 (Frank-

lin Co, Ct. App., Ohio, Aug. 28, 1980), cert. denied, (Dec. 18, 1980)),

and that Pennsylvania is not required under the Federal Water Pollu-

tion Control Act to provide certification under Section 401 has been

determined by the General Counsel of the Environmental Protection

Agency (Op. Gen. Counsel No. 78-8, at 407 (Apr. 19, 1978).

13

The permittee will coordinate with the Pennsylvania

Fish and Game Commissions and the Ohio Depart-

ment of Natural Resources during the implementation

of this plan.’

In the final analysis, this case reflects petitioners’ pro-

found distress over the fact that the Corps has authorized

the construction of a plant that they, for a variety of rea-

sons, oppose. Because many of the petitioners’ reasons for

contesting the construction of the plant are not environ-

mental (some of the petitioners, for example, are steel-

workers in Pittsburgh who fear that they might lose their

jobs if the new plant is built), no degree of attention given to

the purely environmental aspects of the construction and

operation of the plant will ever completely satisfy their

objections. The very fact that the environmental impact

Statement prepared in this case is so comprehensive,

involves so many facts and opinions, and is so long (3,470

pages) ensures that those who oppose the ultimate agency

action can—with relative ease—find points to dispute,

issues to rake over, and uncertainties to dwell upon. The

issues thus raised, however, are not factual, but rather goto

the conclusions to be drawn from the text of the FEIS. This

“controversy of experts,” so common in NEPA cases, is one

that courts properly decline toenter. Manygoats v. Kleppe,

558 F.2d 556, 560 (10th Cir. 1977).

9In any event, there can be no question that the Corps complied with

NEPA, and as was stated in Cape Henry Bird Club vy. Laird, 359 F.

Supp. 404, 418 (W.D. Va.), aff'd, 484 F.2d 453 (4th Cir. 1973), com-

pliance with NEPA is de facto compliance with the coordination

requirements of the Fish and Wildlife Coordination Act.

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

F. HENRY HABICHrT, II

Assistant Attorney General

RAYMOND N. ZAGONE

MARTIN GREEN

Attorneys

SEPTEMBER 1983

DOJ-1983-09

APPENDIX A

DEVELOPMENT OF THE ADMINISTRATIVE RECORD

The first duties of the Technical Team included review

and evaluation of the Corps’ “Guide to the Preparation of

the Environmental Impact Assessment for New Source

Fossil Fuel Power Plants Requirng a Department of the

Army Permit,” the environmental assessment outline pre-

pared by A.D. Littie, and the scope of on-site data collec-

tion required in order to assure that the initial environmen-

tal assessment developed for the site would be adequate for

a FEIS.' Public notice for the proposed work was issued

March I1, 1977.2 The Corps also issued a press release

describing the project.

On March 15, 1977, the Technical Team met at the offices

of U.S. Steel in Pittsburgh, to discuss agency concerns with

U.S. Steel and A.D. Little. The U.S. Fish and Wildlife

Service agreed to initiate a fish sampling program for the

creeks and streams in the project area and in the shallow

waters of Lake Erie adjacent to the plant site. The State of

Ohio provided technical input on issues related to air qual-

ity and project plan mitigation. The Commonwealth of

Pennsy!vania provided baseline data and written comments

outlining concerns in the realm of secondary impacts. The

Corps provided the data and format requirements for the

environmental impact assessment as a whole. The Techni-

cal Team requested a definitive project description from

U.S. Steel so that agency input could be refined and sound

mitigation measures developed.

'AR, Vol. 1.

2A I-11.

3AR, Vol. |.

‘AR, Vol. 2.

la

2a

Shortly thereafter, the Technical Team notified U.S.

Steel that the assessment format did not conform to Corps

requirements, that on-site archaeological and cultural

resources had to be initiated with dispatch, that extensive

species lists should be limited to those actually generated

during data collection, that aquatic field studies should

address agency criteria for intake and discharge structure

siting, and that a section on secondary “spin-off” impacts

should be included.‘

The Technical Team met at the offices of A.D. Little in

Cambridge, Massachusetts, on March 29, 1977, to provide

U.S. Steel and A.D. Little with further guidance for prepa-

ration of the environmental assessment and to resolve other

matters relating to the proposed project.* Representatives

of A.D. Little provided a revised outline for the environ-

mental assessment which was generally acceptable.

On April I, 1977, leaders of various governmental regula-

tory agencies, including representatives from the Corps,

EPA, U.S. Fish and Wildlife Service, State of Ohio, Com-

monwealth of Pennsylvania, and U.S. Steel met in Con-

neaut, Ohio, for a briefing on the status of environmental

impact studies for the proposed project.’ A tour of the

proposed plant site followed the meeting.

The Technical Team met on April 5, 1977, at EPA offices

in Chicago, Illinois, to discuss air quality issues related to

the proposed mill.* The participants agreed that a descrip-

tion of the plant process equipment was necessary in order

to fully model atmospheric emissions from the proposed

SAR, Vol. 2.

*AR, Vol. 2.

7AR, Vol. 2.

SAR, Voi. 5.

3a

facility. The use of three months of on-site data combined

with existing information was deemed sufficient for the

FEIS. ‘U.S. Steel was directed to continue the data collec-

tion process to test the validity of certain predictions and

conclusions. The participants agreed to address the effect of

plant emissions on the grape industry in Western New

York, Pennsylvania, and Ohio asa specific issue. EPA staff

agreed to provide A.D. Little specialists with information

on the effect of atmospheric emissions on agricultural crops

and natural vegetation. In addition, A.D. Little agreed to

prepare a revised air quality program for benz-a-pyrene and

fluorides.

The following day the Team met to discuss the proposed

work plan for performance of aquatic and terrestrial sam-

pling at the proposed site.? U.S. Steel was also advised to

develop mitigatory and alternative plans vis-a-vis the filling

of Turkey Creek, using assistance from the Technical Team.

The Team also discussed other topics, such as establishment

of a mixing zone (800-foot diameter), spawning habitat and

aquatic sampling periods, and placement of the intake

structure.

A notice was issued on April 15, 1977, that a public

hearing would be held in Conneaut, Ohio, on May 16, 1977,

to discuss the Conneaut project in detail.!°

The Technical Team met in Conneaut, Ohio, on April 14

and 15, 1977, to again inspect the proposed plant site. The

purpose of the meeting was to identify environmentally-

sensitive areas within the site boundary, recommend alter-

native or mitigative courses of action that could be employed

to significantly lessen environmental impact, review field

sampling proposals, and delineate those areas subject to

regulation under Section 404 of the Clean Water Act. The

9AR, Vol. 5

OAR, Vol. 2.

4a

concerns and recommendations of the various agency

representatives were summarized and sent to U.S. Steel.!!

The company response followed.!?

A.D. Little sponsored a workshop on April 19, 1977 to

acquaint community officials, as well as local and regional

planning personnel, with procedures for analysis of envir-

onmental impacts. The Corps staff participated in the ses-

sion. Topics of discussion included air quality, aquatic

ecology, geology, hydrology, and socioeconomics. !3

Thereafter, the Corps requested U.S. Steel to evaluate

several issues raised during the public interest review,

including the effect of plant emissions on agricultural crops

and native vegetation, plant-induced secondary growth and

development, placement of fill in Turkey Creek, discharge

of plant effluents into the littoral zone of Lake Erie, loss of

ichthyoplankton associated with the operation of the plant

intake, and the need for an erosion control plan during

construction and subsequent operation of the proposed

mill.!4

Throughout the administrative process all written com-

ments received on the project were regularly sent to U.S.

Steel for review, evaluation, and comment, as required by

33 CFR § 325.2(a)(3).

The Technical Team met on April 25, 1977, in Philadel-

phia, Pennsylvania, to discuss the modeling procedures for

secondary impact evaluation and to provide an opportunity

for agency officials to identify the socioeconomic impact

issues involved in the project.'' Topics of discussion

"AR, Vol. 3.

2AR, Vol. 10.

AR, Vol. 3.

'4AR, Vol. 3.

SAR, Vol. 5,

Sa

included potential increases in carbon monoxide levels at

highway intersections near the proposed plant, information

gaps in the baseline data that could affect the output of the

SIMPACT IV model, and the need to identify highway

interchanges that would improve traffic flow in the vicinity

of the Lakefront plant.

The Corps then prepared a public affairs plan and fact

sheet for distribution throughout the regional impact

area.'® Several public workshops were also conducted.'’ A

toll-free telephone line was established on May 24, 1977, so

that area residents could speak to the Corps staff directly on

matters pertaining to the proposed mill.

On May 2, 1977, U.S. Steel furnished revised terrestrial

and aquatic sampling proposals to the Technical Team.'®

On this same date, the Technical Team met to discuss issues

pertaining to the geologic and hydrologic characteristics of

the proposed steel plant site.!? The team met again May I 1

and 12, 1977, to discuss air and water quality issue.?°

A public hearing was held in Conneaut, Ohio, on May 16,

1977. Issues raised during the hearing included the effect of

plant emissions on agricultural and native vegetation,

secondary growth and development, placement of fill in

Turkey Creek, loss of aquatic and terrestrial habitat, dis-

charge of waste efflunts into the Lake Erie littoral zone,

potential loss of ichthyoplankton during the operation of

the water intake and entrainment of adult fish species on the

intake heads, and need for development of a suitable on-site

l6AR, Vol. 6.

PVAR, Vols. 5, 6, 11, 12.

PWAR, Vol. 6.

PXAR, Vol. 8.

QYAR, Vol. 10.

6a

erosion control plan, energy, and unemployment in the

Conneaut area. Hearing files were established in Buffalo,

Cleveland, and Conneaut, Ohio.

On May 20, 1977, the Corps requested information from

EPA regarding Federal and State standards for sulfur diox-

ide emissions.?! The EPA responded on June 2, 1977.2

On May 25S and 26, 1977, a series of technical conferences

were held at EPA offices in Philadelphia to discuss use of

the SIMPACT model, secondary socioeconomic effects,

air, noise, and water quality impacts, and transportation

needs.?3

On May 27, 1977, the Corps announced that additional

public hearings would be held in Erie, Pennsylvania, on June

29, 1977, and Ashtabula, Ohio, on June 30, 1977.24 An

additional hearing file was established in Erie, Penn-

sylvania.

On June 9, 1977, the Technical Team met in Pittsburgh to

resolve administrative and technical problems relating to

review of the permit application. Topics of discussion

included actions which could delay or prohibit issuance of

the permit, storm and surface water runoff, solid waste,

shoreline discharge of waste effluents, Technical Team

coordination, agency data requirements, and alternatives to

the diversion and filling of Turkey Creek. The A.D. Little

staff also provided a status report on data collection and

preparation of their environmental report.?5 The Technical

Team met again on June 25, 1977 to evaluate the data

71AR, Vol. 10.

2AR, Vol. 10.

BAR, Vol. 10.

*AR, Vol. 10.

%AR, Vol. 12.

7a

contained in the effluent and emission inventories prepared

by U.S. Steel.?6.

On June 23, 1977, the Corps forwarded a letter to U.S.

Steel requesting prompt answers to questions raised by the

Concerned Citizens organization at a workshop held in

Conneaut, Ohio, on June 21, 1977.2” Issues raised in this

correspondence included the need for a 72-inch diameter

intake pipeline, the rationale for facility need, the potential

for shutdown of existing plants if the Lakefront mill pro-

ceeded into operation, contingency plans for oil spills or the

failure of pollution control equipment, and the effect of

plant emissions on agricultural crops, nursery stock, and

native vegetation. Detailed responses to each inquiry were

provided by U.S. Steel on July 15, 1977.78

On June 24, 1977, the Technical Team convened to eval-

uate the field data collection effort by Aquatic Ecology

Associates, Inc. and to identify ways in which the existing

sampling program could be improved.?? During this meet-

ing, guidance was provided concerning the establishment of

a baseline for stormwater runoff and the measurement of

priority pollutant levels in fish tissue.

On June 27, 1977, U.S. Steel transmitted completed

copies of an EPA questionnaire dealing with water related

issues to each member of the interagency Technical Team.*°

EPA had initially requested completion of the question-

naire at the June 15, 1977 Technical Team meeting.

2*AR, Vol. 12.

"AR, Vol. 12.

7®AR, Vol. 12.

2%AR, Vol. 12.

AR, Vol. 12.

8a

The Corps later sent letters to U.S. Federal Regional

Council in Chicago, Illinois, and Philadelphia, Pennsylva-

nia, requesting a list of applicable permits that must be

secured prior to construction and operation of the proposed

stec! mill. Similar correspondence was forwarded to the

Ohio EPA and the Commonwealth of Pennsylvania.?!

The Technical Team met on June 29, 1977, to examine

solid waste disposal problems relating to the proposed steel

facility.*? Discussion centered on landfill availability in the

vicinity of the proposed plant, recycling of solid wastes, soil

characteristics and groundwater resources of the Lakefront

site, and methods of solid waste disposal.

Additional public hearings were held in Erie, Pennsylva-

nia, and Ashtabula, Ohio. Topics of concern included the

effect of plant related emissions’ on agricultural and native

vegetations, secondary growth and development impacts,

Turkey Creek and potential loss of aquatic and terrestrial

habitat, erosion control, formation of a greenbelt surround-

ing the plant, labor supply and unemployment, credibility

of information supplied by U.S. Steel, adverse social

impact, and possible Federal funding for municipal water

supplies.

Corps representatives later met with U.S. Steel and A.D.

Little to review the outline for their environmental report.

Format requirements for the assessment were also estab-

lished during this meeting.2? Corps representatives also

attended a public forum sponsored by the State of Ohio.*4

SIAR, Vol. 12.

2AR, Vol. 17.

3AR, Vol. 16.

AR, Vol. 16.

9a

During the review process, U.S. Steel regularly distrib-

uted progress reports on the Aquatic Ecology Associates,

Inc. field sampling effort to members of the interagency

Technical Team. The results contained in each interim doc-

ument were eventually compiled into a single two volume

document.5 Copies of the interim and final reports were

also placed in each of the designated hearing files. Responses

to the request for applicable permit lists were received from

the Commonwealth of Pennsylvania, Ohio EPA, and the

FRC.%

The Technical Team met on July 29, 1977 to discuss Best

Available Control Technology (BACT) and Lowest Achiev-

able Emission Rates (LAER) requirements for the pro-

posed mill.”

During the first week of August 1977, representatives of

the Corps toured those U.S. Steel plants in Alabama and

Texas utilizing processes and pollution control technology

similar to those proposed for the Conneaut Plant.

Corps representatives attended a public meeting con-

ducted by EPA in Conneaut, Ohio, on August 3, 1977.38

As they were completed, draft portions of the A.D. Little

environmental assessment were forwarded to the Corps and

the interagency Technical Team for independent review and

comment. This procedure began on August 4, 1977, and

continued until January 6, 1978, when the final section of

the draft was received from U.S. Steel. At the same time,

A.D. Little evaluated Technical Team comments and

incorporated them into its final environmental assessment,

SAR, Vol. 99.

3©AR, Vol. 17, 18.

AR, Vol. 18.

38AR, Vol. 18.

10a

which U.S. Steel transmitted to the Corps on July 5, 1978.

Copies of the draft and final assessments were placed in

each of the designated hearing files.

On August 8, 1977 the Corps furnished U.S. Steel with a

list of the regulatory permits required for the proposed

mill.39

The Technical Team also met to discuss Best Available

Demonstrated Technology (BADT) guidelines and to review

modeling techniques used to predict plant related impacts

on air quality.*°

On August 16, 1977, the District Engineer requested that

certain Federal, State, and local agencies review the U.S.

Steel proposal to determine the degree of conformance with

the objectives and specific terms of existing or proposed

land use plans, policies, and controls.*!

The August 29, 1977, response from Ashtabula County

indicated that the proposed development was compatible

with land use plans through the year 2000.4? On August 31,

1977, the Mayor of Conneaut responded by providing

copies of the city zoning map and applicable ordinances.*?

The September 8, 1977, response from the Pennsylvania

State Office of Planning and Development described sev-

eral planning strategies that would be used to evaluate the

U.S. Steel proposal.“

SAR, Vol. 18.

“AR, Vols, 18, 20.

*tAR, Vol, 18,

“AR, Vol. 22.

“SAR, Vol. 22.

“AR, Vols, 28, 29, 30.

lla

On August 17, 1977, the Corps met with representativees

of Erie County, Pennsylvania, agricultural groups to dis-

cuss the U.S. Steel proposal. Major concerns identified

during this session included the potential loss of farmland

as a result of plant-induced growth and development and

the effect of plant emissions on crops and nursery stock,

The meeting concluded with a tour of area farming districts.

The Corps sent the Technical Team copies of the trans-

cripts and written comments from the June 29 and 30

hearings.

The Corps retained the services of Dr. Brian J.L. Berry,

Director of the Laboratory for Computer Graphics and

Spatial Analysis, Graduate School of Design, Harvard

University, Cambridge, Massachusetts, to review and eval-

uate the A.D. Little analysis of plant related socioeconomic

impacts.

On August 30, 1977, the Technical Team met in Chicago,

Illinois, to continue discussions relating to the plant emis-

sions inventory and BACT/ LAER requirements.*S

The Corps requested that U.S. Steel develop a study to

determine the effect of plant related emissions on native

vegetation, nursery stock, and agricultural crops. Acopy of

an August 30, 1977, letter from Donald D. Davis, Associate

Professor, Pennsylvania State University, was included

with this correspondence.**.

On September 9 and 10, 1977, representatives of the

Corps attended public meetings sponsored by the Sierra

Club in Cleveland, Ohio, and Erie, Pennsylvania, that

included a presentation by Stewart Udall, former Secretary

of the Department of the Interior.‘

‘SAR, Vol. 27.

**AR, Vol. 27.

“AR, Vol. 30.

12a

On September 12, 1977, U.S. Steel advised the Corps that

the plant discharge structure would be moved to an offshore

location, to minimize impacts on the aquatic biota.** Ata

meeting in Cambridge, Massachusetts, on September 20,

1977, Dr. Brian Berry was briefed on the SIMPACT models

used by A.D. Little to identify and define certain environ-

mental impacts associated with the construction and opera-

tion of the proposed mill.*

The Technical Team met on September 23, 1977, to

identify and resolve issues that could delay the completion

of the A.D. Little environmental reports.*° Items of discus-

sion included the lack of agreement on BACT LAER lim-

itations and the A.D. Little rationale for plant emissions,

overdue field reports, and the need for viable alternatives to

the placement of fill in Turkey Creek.

The Corps transmitted the cultural resource survey of the

Lakefront site to the National Park Service and the State

Historic Preservation Officers for review on September 26,

1977.5! Responses were received on November 25, 1977.°?

Between September 28, 1977 and January 10, 1978,

comments on the SIMPACT model and the A.D. Little

socioeconomic impact analysis provided by the Corps’ con-

sultant, Dr. Brian J.L. Berry, were transmitted to U.S. Steel

for review and evaluation. A final report critiquing the

overall socioeconomic impact assessments for the proposed

steel plant was furnished by Dr. Berry on March 15, 1978.°?

“SAR, Vol. 30.

“AR, Vol. 35.

SOAR, Vol. 35.

SIAR, Vol. 35.

AR, Vol. 45.

SAR, Vol. 65.

l3a

The Technical Team met on October 3 and 12, 1977, to

continue discussions relating to plant emissions inventory

and BACT, LAER requirements.*4

On October 3-5, 1977, representatives of the U.S. Fish

and Wildlife Service, Pennsylvania Fish and Game Com-

missions, and the Ohio Department of Natural Resources,

conducted a field survey of the Turkey Creek watershed.

The purpose of this investigation was to identify alternative,

mitigative, or compensatory actions that would lessen the

impacts associated with the filling and diversion of Turkey

Creek.55

Colonel Daniel D. Ludwig addressed the Northwest

Pennsylvania Futures Committee on October 5, 1977.

Colonel Ludwig discussed Corps involvement in the pro-

posed U.S. Steel project.

In response to a request from the Concerned Citizens of

Conneaut, Ohio, the Corps extended the comment period

on the DEIS from 45 to 90 days.

On October 25, 1977, copies of the “Final Report on the

Discriminant Archaeological Analysis of Erie and Craw-

ford Counties, PA and Ashtabula County, OH” prepared

by A.D. Little were distributed to the National Park Service

and the State Historic Preservation Officers for review.‘’

The National Park Service responses transmitted to the

Corps on November 11, 1977, and November 28, 1977,

indicated that this document was of significant value as a

planning tool for reconnaissance-level investigations. **

AR, Vols. 36, 37.

SSAR, Vol. 36.

SAR, Vol. 38.

STAR, Vol. 38.

*AR, Vols. 43, 45.

l4a

Representatives of the Pennsylvania Fish and Game

Commissions, Ohio Department of Natural Resourcs, U.S.

Fish and Wildlife Service, and the Corps met on October

27, 1977, to discuss potential compensation measures for

the loss of Turkey Creek.*®

The Technical Team met on November |, 1977, to discuss

comments onthe SIMPACT model provided by Dr. Berry,

on November 7, 1977, to discuss the A.D. Little memoran-

dum on worst case scenarios for air quality modeling, and

on December 15 and 16, 1977, to review the socioeconomic

portion of the A.D. Little draft assessment.”

On November 9, 1977, representatives of the Ohio

Department of Natural Resources met with U.S. Steel to

present the State of Ohio position on the filling and diver-

sion of Turkey Creek.*! Representatives of U.S. Steel met

with the Corps on December 29, 1977, to review coordina-

tion procedures to be followed during preparation of the

DEIS.* U.S. Steel agreed to submit revised drawings,

which were received by the Corps on February 6, 1978.°?

On February |, 1978, the Corps requested that the

Springfield Township Zoning Office review the U.S. Steel

proposal to determine the degree of conformance with the

objectives and specific terms of existing or proposed land

use plans, policies, arid controls.** The Erie County Metro-

politan Planning Commission responded on behalf of

S8AR, Vols. 43, 45.

S9AR, Vol. 41.

AR, Vol. 44, 43, 55.

SIAR, Vol. 43.

*2AR, Vol. 58.

AR, Vols. 55, 58.

AR, Vol. 58.

15a

Springfield Township Zoning Office. Their correspon-

dence, dated February 7, 1977, contained zoning and sub-

division ordinances of Springfield Township and East

Springfield Borough and a status report on regulating plans

and controls for Girard Township and the Boroughs of

Girard, Lake City, Albion, and Cranesville.®°

The DEIS was filed with EPA on May 23, 1978. At the

same time, copies of this document were forwarded to

Federal, State, and local agencies, environmental groups,

public libraries, and interested individuals for review.° A

notice of availability was also widely distributed through-

out the regional impact area.*’? Additional copies of the

DEIS and the 19-page summary of this document were

provided to individuals on request.®*

The public review period for the DEIS began on June 5,

1978, the date the notice of receipt by the EPA was filed in

the Federal Register.*?

The Corps issued a Public Notice on June 8, 1978,

announcing the schedule for hearings on the U.S. Steel

proposal.’° Public hearings were held in Conneaut, Ohio

(July 11, 1978), Erie, Pennsylvania (July 25, 1978), Ashtab-

ula, Ohio (August 14, 1978), and West Springfield, Pen-

nsylvania (August 22, 1978). Significant issues raised dur-

ing these hearings were addressed in the FEIS.

On June 13, 1978, the Corps requested that the US.

Department of Agriculture Soil Conservation Service deter-

mine the existence of prime or unique farmlands on the

®SAR, Vol. 59.

AR, Vol. 66.

*"AR, Vol. 66.

**AR, Vol. 66.

AR, Vol. 68.

AR, Vol. 68.

l6a

proposed Lakefront Plant site.”! The Soil Conservation

Service response of July 18, 1978 indicated that approxi-

mately 70 percent of the Ohio portion of the Lakefront site

is classified as prime farmland and that no unique farm-

lands were present within the project area.”

During the DEIS comment period, the Corps staff partic-

ipated in the following public information workshop: June

14, 1978, workshop sponsored by the Conneaut Chamber

of Commerce; June 26, 1978, workshop sponsored by the

County of Erie, Pennsylvania; June 27, 1978, workshop

sponsored by Ashtabula Chamber of Commerce; and June

28, 1978, workshop sponsored by Albion Chamber of

Commerce. Topics of discussion included population,

taxes, land use, and air and water quality.

On August 14, 1978, the Corps issued a press release

advising the public that the review period for the DEIS

would not be extended beyond the September 8, 1978,

deadline.’3 The Corps transmitted a letter of explanation to

local governmental officials and representatives of area

environmental groups on August 17, 1978.74

On July 11, 1978, the Corps requested that U.S. Steel

forward copies of the A.D. Little report entitled “Report on

the Environmental Impacts of the U.S. Steel Corporation’s

Proposed Lakefront Plant” to each member of the intera-

gency Technical Team and to the public libraries in Erie,

Pennsylvania, and Conneaut, Ohio, and the Corps office in

Cleveland, Ohio. U.S. Steel complied with this request on

July 18, 1978.

7IAR, Vol. 68.

AR, Vol. 94.

AR, Vol. 96.

7™4AR, Vol. 96.

17a

Representatives of the Corps participated in panel dis-

cussion of the U.S. Steel proposal televised by WICU-TV

and WSEE-TV of Erie, Pennsylvania. Some of these

broadcasts were “live” and others were taped for later

broadcast during the summer and fall of 1978. Corps staff

also participated ina panel discussion broadcast by WFUN-

AM radio of Ashtabula, Ohio.

On August 8, 1978, representatives of various sport clubs,

State and Federal agencies, and U.S. Steel met in Con-

neaut, Ohio, to discuss treatment of Turkey Creek.’5

The comment period for the DEIS ended September 8,

1978. On the same day, the Technical Team met to discuss

air quality issues relating to the combined effect of emis-

sions from the proposed COHO power plant and the U.S.

Steel Lakefront facility.Ӣ

On November 30, 1978, the EPA indicated that the A.D.

Little analysis of combined emission impacts was adequate

for the purposes of the FEIS.”’

The Federal Regional Council sponsored a meeting on

September 13, 1978, to discuss comments onthe population

projections presented in the DEIS.’8

The Corps sent copies of the comments received during

the DEIS review period to U.S. Steel for comment and

response and to Technical Team members, local officials

and area libraries.”? It also issued a notice advising the

public that an information meeting on the U.S. Steel pro-

posal would be held in Conneaut, Ohio, on October 18,

SAR, Vol. 96.

7*AR, Vol. 99.

AR, Vol. III.

"SAR, Vol. 110.

*9AR, Vol. 110.

l8a

1978.89 During this meeting, agency officials presented their

comments on the DEIS and answered questions from the

general public. Additional comments were sent to U.S.

Steel on September 28, 1978, and November 14, 1978.°!

On October 11, 1978, the Mid-Atlantic Federal Regional

Counsel advised the Corps that the proposed U.S. Steel

project was consistent with the goals of the President's

national urban policy.*?

The Technical Team met October 16, 1978, to identify

and evaluate viable alternatives to the filling and diversion

of Turkey Creek.*} In addition to the Corps, representatives

of the following agencies participated in the session: U.S.

Environmental Protection Agency, U.S. Fish and Wildlife

Service, Ohio Environmental Protection Agency, Ohio

DNR, Pennsylvania Department of Environmental Resourc-

es, Pennsylvania Fish Commission, Ashtabula County

Planning Commission, Erie County Health Department,

and the City of Conneaut.

On November 2, 1978, U.S. Steel transmitted a revised

proposal for harbor pier construction to the District Engi-

neer for evaluation.** This information was transmitted to

Federal, State, and local agency representatives for review

on November 14, 1978.85

The Corps requested U.S. Steel to review the possibility

that operation of the Lakefront plant could require the

addition of activated charcoal filters to the City of Erie

80AR, Vol. 110.

SIAR, Vols. 110, 111.

82AR, Vol. 110.

83AR, Vol. 111.

SAR, Vol. Ill. .

8SAR, Vol. I 11.

19a

water treatment system.*¢ In addition, U.S. Steel was pro-

vided a copy of the minutes of the Federal Regional Council

meeting of September 13, 1978, with instructions to respond

to each of the issues identified. The Corps also requested the

Commonwealth of Pennsylvania to furnish minutes of a

meeting addressing on-site mitigation and a copy of the

report of Dr. Milo Bell, the Commonwealth's consultant,

on the subject of mitigation.*’

On November 17, 1978, the Corps staff met with repre-

sentatives of the League of Women Voters of Erie County

to discuss environmental issues related to the construction

and operation of the proposed plant.’* Topics of concern

included plant-induced secondary growth and develop-

ment, air quality, water quality, solid waste, and alterna-

tives to the placement of fill in Turkey Creek.

The Corps secured the services of Fry Consultants, Inc.

to further evaluate alternative brownfield and greenfield

sites within the geographic market area for the proposed

Lakefront Steel Piant.

The Corps requested that EPA provide answers to a

series of questions on air and water quality issues.8? A

similar request was transmitted to the U.S. Federal Regional

Council on November 29, 1978.% Responses were received

from the EPA on February 12, 1979, and from the Federal

Regional Council on January 15, 1979.9!

SSAR, Vol. III.

S"AR, Vol. IIT.

88AR, Vol. 111.

89AR, Vol. 111.

Ar, Vol. III.

SIAR, Vols. 116, 113.

20a

Between December |, 1978, and February 9, 1979, U.S.

Steel provided technical responses for the comments received

during the review period for the DEIS. This information

was considered by the Corps staff during preparation of the

FEIS. The Corps requested that U.S. Steel resolve aii

inconsistencies between the data contained in the Fish and

Wildlife Management Plan prepared by Fahringer, McCarty

and Grey, Inc., and the DEIS.* A follow-up request was

transmitted to U.S. Steel on January 22, 1979.93 The Corps

furnished copies of the plan to the Technical Team and

other governmental officials, requesting their comments.”

The Technical Team was also advised that a plan for resolu-

tion of siting and design problems associated with the raw

water intake for the proposed steel plant had been formulat-

ed.%5

On January 12, 1979, Fry Consultants, Inc., submitted its

report on the analysis of alternative sites for the proposed

U.S. Steel Lakefront Plant.%

The Technical Team met on January 18, 1979, to con-

sider additional aquatic studies associated with the siting of

the raw water intake for the proposed steel plant.%’ The U.S.

Fish and Wildlife Service forwarded the completed scope of

work to the Corps on February 8, 1979.%.

Copies of all comments on the Fish and Wildlife Man-

agement Plan were sent to U.S. Steel for review. In the letter

of transmittal, the Corps specifically pointed out that the

®AR, Vol. 112.

AR, Vol. 113.

%#AR, Vol. 113.

9SAR, Vol. 112.

%AR, Vol. 113.

S7AR, Vol. 113. -

%8AR, Vol. 116.

2la

February 14, 1979, correspondence from the U.S. Fish and

Wildlife Service represented advance notice of itent to

request permit denial.%

On April 2, 1979, The FEIS was forwarded to the Div-

ision Engineer, North Central Division for review and

transmittal to higher authority.'!° The Division Engineer

completed his review of the FEIS and forwarded it to the

Office of the Chief of Engineers in Washington, D.C., for

further review and forwarding to the EPA.!°!

On May 4, 1979, a notice appeared in the Federal Regis-

ter indicating that the FEIS had been filed with the EPA on

April 26, 1979.'°2 Copies of the FEIS were distributed to

Federal, State, and local agencies, public interest groups

and interested individual on April 26, and 27, 1979.'!° The

official 30-day comment period began on April 26, 1979. A

notice of availability was widely distributed throughout the

regional impact area on April 27, 1979. !04.

The official position of the Commonwealth of Pennsyl-

vania was provided by the State Clearinghouse. !°5

9%AR, Vol. 116.

OAR, Vol. 117.

llAR, Vol. 117.

l2AR, Vol. 117.

OAR, Vol. 117.

164AR, Vol. 117.

l0SAR, Vol. 117.

22a

APPENDIX B

OFFICE OF THE CLERK

United States Court of Appeals

21400 United States Courthouse

Independence Mall West

601 Market Street

Philadelphia 19106

SALLY MRVOS TELEPHONE

CLERK 21$-$97-2995

[sic] September 27, 1983

(Blair S. McMillin, Esquire

(Thomas R. Wright, Esquire

(Eric A. Schaffer, Esquire

Reed, Smith, Shaw & McClay

Union Trust Building

P.O. Box 2009

Pittsburgh, PA. 15230

Re:Lake Erie Alliance for the Protection of the

Coastal Corridor, etc., et al., Appellants v.

U.S. Army Corps of Engineers, etc., et al.- No.

82- 5156.

Dear Counsel:

At the oral argument of the above case on January 23rd

the Court expressed concern that this case might be moot in

view of the lapse of time and the fact that the corporation

has apparently not gone ahead with its planned con-

struction.

The Court would like to be advised within fifteen (15)

days from the date of this letter whether the case is moot in

the corporation's view. An original and three (3) copies of

23a

your response should be filed with certificate of service on

opposing counsel.

Very truly yours,

SALLY MRVOS, Clerk

By: /s/ M. Elizabeth Ferguson

Chief Deputy Clerk

mef

cc: Staughton Lynd, Esquire

Brent L. English, Esquire

Martin Green, Esquire

24a

APPENDIX C

REED SMITH SHAW & McCLAY

A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

UNION TRUST BUILDING

P.O. BOX 2009

PITTSBURGH, PA 15230

412-288-3131

[412] 288-3270 February 9, 1983

TWX 710-664-2083 WASHINGTON, DC 200%

FAX 288-3064 202-4574100

CABLE ADDRESS PHILADELPHIA, PA 19107

REEDSMITH PGH 215-675-4300

WRITER'S DIRECT DIAL NUMBER HARRISBURGH, PA 17108

717-234-988

VERO BEACH. FL 32960

5-231 -$800

REED SMITH & CHAPIN

DELRAY BE an

M. Elizabeth Ferguson

Chief Deputy Clerk

United States Court of Appeals

For The Third Circuit

21400 United States Courthouse

Independence Mall West

601 Market Street

Philadelphia, PA 19106

Re: Lake Erie Alliance for the Protection of the

Coastal Corridor, etc., et al., Appellants v.

Army Corps of Engineers, etc., et al.-No.

82-5156.

Dear Ms. Ferguson:

In response to your letter dated [sic] January 27, 1983 and

the inquiry by the Court as to the present plans of United

States Steel corporation (USS) for the construction of a

25a

new steel mill at Conneaut, Ohio, pleased be advised that

USS does not consider this case moot.

In this regard, the Permit issued by the Corps of Engi-

neers for the construction of the mill does not even require

that construction be commenced until December 31, 1983.

Permit No. 77-492-3 (effective June 18, 1979) provides in

Special Condition (4):

“(4) That General Condition (0) is hereby

amended to read as follows: That if the activity

authorized herein is not started on or before the

31st day of December 1983 and is not completed

on or before the 3lst day of December 1989, this

permit, if not previously revoked or specifically

extended, shall automatically expire.” [Emphasis

Added].

26a

REED SMITH SHAW & McCLAY

M. Elizabeth Ferguson

Page -2-

February 9, 1983

In the view of USS the Permit is still a valid Permit, and

USS wishes to retain all of its rights under the Permit.

By reason of the foregoing, USS respectfully submits that

neither Article III nor policy considerations preclude

review and disposition of the issue on appeal. Accordingly,

as counsel for USS, we strongly urge the Court to reinstate

its judgment order dated January 25, 1983, affirming the

judgment of the district court.

Respectfully submitted.

s/ Thomas K. Wright

Thomas R. Wright

REED SMITH SHAW & McCLAY

Attorneys for Intervenor,

United States Steel Corporation.

Of Counsel:

John A. Byerly, Jr., Esq.

General Attorney—Real Estate

United States Steel Corporation

TRW:eac

27a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-5156

LAKE ERIE ALLIANCE FOR THE PROTECTION

OF THE COASTAL CORRIDOR, et al.,

Appellants,

v.

UNITED STATES ARMY CORPS OF ENGINEERS,

et al.

[Civil No. 79-110 - W. D. Pa. - Erie]

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he is counsel for the

Intervenor, United States Steel Corporation, in the above-

captioned matter, and that a copy of the foregoing has been

served on the following counsel of record by United States

Mail, postage prepaid, this 9th day of February, 1983:

Staughton Lynd, Esq.

Northeast Ohio Legal Services

804 Metropolitan Tower

Yongstown, OH 44503

Brent L. English, Esq.

Weiner, Orkin, Abbate & Suit Co., L.P.A.

24200 Chagrin Boulevard, Suite 150

Beachwood, OH 44122

Martin Green, Esq.

Department of Justice

Washington, D.C. 20530

/s/ Thomas K. Wright

Thomas R. Wright

28a

APPENDIX D

REED SMITH SHAW & McCLAY

A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

UNION TRUST BUILDING

P.O. BOX 2009

PITTSBURGH, PA. 15230

412-288-3131

September 7, 1983

TWX 710-664-2083 WASHINGTON, DC 20036

FAX 288-3064 202-457-6100

CABLE ADDRESS PHILADELPHIA, PA 19107

REEDSMITH PGH 215-875-4300

WRITER'S DIRECT DIAL NUMBER HARRISBURG, PA 17108

717-234-S988

(412) 288-4202 VERO BEACH, FL 32960

W$-231-5500

REED SMITH & CHAPIN

DELRAY BEACH, FL 33444

30$-272-1225

Richard G. Wilkins

Office of the Solicitor General

United States Department of Justice

Washington, D.C. 20530

Re:Lake Erie Alliance for the Protection of the

Coastal Corridor, et al. v. United States Army

Corps of Engineers, et al.

Dear Mr. Wilkins:

This will confirm our conversation today in which I

advised you that United States Steel Corp. does not pre-

sently plan to begin construction of the proposed Conneaut

mill.

Very truly yours,

REED SMITH SHAW & McCLAY

By

Eric A. Schaffer

EAS:cal

cc: John A. Byerly, Jr., Esquire