Highway J Citizens v. Mineta, Norman

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2644
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.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 662—Charles N. Clevert, Jr., Judge.
____________
ARGUED SEPTEMBER 19, 2003—DECIDED NOVEMBER 5, 2003
____________
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
2 No. 03-2644
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 of-
ficial 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 “de-
fendants”).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 deter-
mined, (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 prelimi-
1
The FHWA, the federal agency in this case, worked in con-
sultation with WDOT, the funding applicant, in performing the
tasks required by NEPA. See 23 C.F.R. § 771.119.
No. 03-2644 3
nary 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 pro-
ceeding until the revised EIS is completed. For the reasons
set forth in this opinion, we must deny Citizens the re-
quested 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
4 No. 03-2644
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 neces-
sary 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
2
A Project map is attached as Exhibit A.
No. 03-2644 5
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 ground-
water 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 defen-
dants 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 docu-
ment 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
6 No. 03-2644
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 doc-
ument 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 contami-
nation 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 Environ-
mental 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 concentra-
tions in well TW23R have dropped from 3 to 2.2 ug/l,
No. 03-2644 7
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 deten-
tion/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 simpler
and less costly means, (2) the Ackerville Bridge Project
should not be segmented from the County J/Highway 164
Project, and (3) the landfill contaminants pose great risks in
conjunction with the Project.
On April 7, 2000, the “Hazardous Materials Site Inves-
tigation Report Phase I Addendum” (“Addendum”) was
released. R.38, Ex.1015, A.R. at 00709-00714. This Adden-
dum was prepared by the EMCS Design Group, which
worked in connection with the WDNR in developing the
report. The Addendum is based on a review of the March
30, 1990 report entitled “Two-Year Ground Water Monitor-
ing Report Polk Sanitary Landfill Washington County,
Wisconsin.” This report discusses the groundwater around
the landfill, including its flow, contains maps and discus-
sions of arsenic and TCE, and concludes that the landfill
was not the source of downgradient TCE detections or
8 No. 03-2644
elevated arsenic levels. R.38, Ex.1000, A.R. at 02774-02814.
The 2000 Addendum is also based on a review of the “Phase
I and Phase II Hazardous Material reports,” R.38, Ex.1014,
A.R. at 00873-00908, which “were completed in 1994 for this
project based on” the originally conceived limited scope of
the Project, which did not include a bridge. R.38, Ex.1015,
A.R. at 00710. The “February 23, 1994 Phase I Report”
identified groundwater in the area as potentially contami-
nated and noted that WDNR was continuing to monitor it.
It added, “The groundwater depth should be determined
within the project limits so that excavation to the groundwa-
ter depth during construction can be avoided.” R.38,
Ex.1014, A.R. at 00876. In the Addendum, the landfill is
addressed as follows:
Site 7 (previous): Town of Polk/Waste Management
(WDNR FID # 267062400) was identified in the original
phase I report as an inactive waste disposal site. There
is groundwater contamination in this area with [TCE]
being one of the contaminants. The closest monitoring
well is located approximately 400 feet west of STH 164.
TCE concentrations in this well have dropped from 3 to
2.2 ug/l, well below the WDNR groundwater enforce-
ment standard of 5 ug/l. This site is 700 feet west of
where the proposed Foxboro extension connects to STH
175 and indicated groundwater depths of 30 feet are
well below the excavation limits of the roadway.
Therefore, it is very unlikely that the contaminated
groundwater will impact this project. It is also unlikely
that the pilings for the structure supports or retention
basins will cause an impact on plume movements or
concentrations.
R.38, Ex.1015, A.R. at 00714.
On April 25, 2000, the last signature was placed on the
“Finding of No Significant Impact” (“FONSI”) for the Proj-
ect. The FONSI was premised on the EA for the Project,
No. 03-2644 9
which was attached to the FONSI. The final EA/FONSI
contains a “Basic Sheet A” which includes the comments
from the public on the Project and defendants’ responses to
the comments. Specifically, Basic Sheet A considers whether
the landfill “is a significant impact and therefore warrants
preparation of an EIS,” but concludes the landfill “will not
affect the Department’s proposed project.” R.38, Ex.1003,
A.R. at 00005. It explained:
There is ground water contamination in the area sur-
rounding the landfill with [TCE] being one of the
contaminants. This site has been under remediation for
several years. The closest monitoring well is located
approximately 122 m (400 ft) west of STH 164. TCE
concentrations in this well have dropped from 3 to 2.2
ug/l, well below the WDNR groundwater enforcement
standard of 6 ug/l. Indicated ground water depths of
9m (30 ft) are well below the excavation limits of the
roadway or bridge construction.
The Department has determined that the potential for
encountering and impacting hazardous materials dur-
ing construction of this project does not exist. Therefore,
there is no purpose or need for preparation of an EIS.
Id. The EA/FONSI also responded to Citizens’ suggestion
that the Ackerville Bridge Project and the County
J/Highway 164 Project be joined together as one EIS. After
considering the three criteria for segmentation set out in
FHWA regulations, see 23 C.F.R. § 771.111(f)(1)-(3), it
concluded that “the selected alternative has logical termini,
independent utility, and does not preclude or exclude future
alternatives for other projects. It is therefore appropriate
that [the Ackerville Bridge Project] be allowed to stand on
its own merit.” Id. at 00004. The EA/FONSI also considered
alternatives, including the alternative proposed by Citizens,
but concluded that the best alternative to effectuate all of the
10 No. 03-2644
purposes of the Project includes the Ackerville Bridge. Id. at
00006, 00013.
On July 7, 2000, Mr. Gonyo sent a letter to Paul Tufts, an
environmental specialist at the FHWA, requesting that the
defendants reconsider the FONSI and that an EIS be pre-
pared before any construction on the Project. This letter
specifically notes as a concern that “the pilings will have to
be driven into and below the contaminated groundwater
table.” R.38, Ex.1017 at 2. According to the defendants,
Richard Madrzak of the FHWA requested information from
Jay Waldschmidt of the WDOT, Bureau of Environment, to
respond to Mr. Gonyo. R.29 at 10. During their oral conver-
sation, Mr. Waldschmidt discussed previous conversations
with Chad Czarkowsi and Phil Fauble of WDNR, and then
Mr. Madrzak asked to have something in writing. Id.On August 22, 2000, the WDNR provided the WDOT a
memorandum, per the request of Mr. Waldschmidt, in re-
sponse to the groundwater concerns. R.38, Ex.1020, A.R. at
12294. The authors of the memo are Chad Czarkowski and
Phil Fauble, both of whom have extensive experience with
groundwater issues with WDNR. This 2 ½ page, single-
spaced memo has as its main conclusion that “the road
project will not have any substantial effect [sic] on the
existing pattern of groundwater flow, concentration of
contaminants, nor cause any increase in health risks due to
ground water contamination in the vicinity.” Id. at 12295. In
support of that conclusion, the memo noted that
[t]he TCE seems to originate from a point approxi-
mately 1500 feet west / northwest of Hwy 164 and
Sherman Road. Groundwater flow has been determined
to be southeasterly from the apparent source, towards
the proposed road project. The top of the water table in
the gravel aquifer below the road project area is approx-
imately 30 feet below the land surface.
No. 03-2644 11
Id. As to the concentrations of TCE, the memo stated that in
the mid-1980s, area wells had been tested for TCE, and
levels exceeded Wisconsin’s enforcement standard of 5
ug/l. Id. However, the landfill “is not considered a likely
source of the TCE plume because TCE has not been detected
in either the landfill leachate or consistently in monitoring
wells directly adjacent to the landfill.” Id. The memo further
noted that the private wells determined to be at risk from
the waste disposal sites were sampled in the 1980s, and they
were subsequently either abandoned altogether, abandoned
and replaced with “deeper dolmite aquifer wells cased to
the top of the first bedrock at 220 feet,” or sampled and
found clean. Id.Finally, the memo considered three mechanisms by which
the project could conceivably affect groundwater in the
vicinity. The one relevant to this appeal is: “Driving pilings
to depths greater than 30 feet could potentially encounter
contaminated groundwater.” Id. at 12296. On this issue, the
memo concluded that
such vertical steel pilings would not, in themselves,
contribute any additional contaminants to the ground-
water, nor significantly alter flow along any horizontal
plane. Theoretically, the flow of groundwater could be
altered along vertical lines due to penetration of a piling
thru lenses or layers of dense, clay-rich soil known as
“confining layers” or aquatards. Such layers, if present,
normally act to prevent downward or upward move-
ment of groundwater. A piling might compromise a
confining layer by creating a narrow (0.5”-3” maximum)
concentric space along the outside shaft of a piling or
casing.
However, we believe the placement of pilings will not
significantly affect ground water conditions on this
project. As documented by well logs and soil borings,
12 No. 03-2644
there is no effective, continuous confining layer in the
project area. Without any effective separation of the
shallow sand and gravel aquifer from the deeper
dolomite aquifer, ground water already moves freely
along vertical planes. In fact, several well nests near the
proposed project record consistent upward gradients,
an indication that deeper aquifer water is discharging
into the shallower system. The relatively small increase
in vertical groundwater movement which might be
expected along open spaces surrounding even several
dozen pilings is insignificant compared to the quantity
of natural vertical movement.
In conclusion, there does not appear to be any mech-
anism by which the existing groundwater conditions
will be significantly altered by the road project.
Id. at 12296-12297. On August 23, 2000, Mr. Madrzak sent an
e-mail to Paul Tufts, the addressee on Mr. Gonyo’s letter
requesting reconsideration of the FONSI, discussing the
August 22, 2000 memo:
Attached for your information is a copy of DNR’s
response to my request through Jay Waldschmidt for
information regarding Mr. Gonyo’s allegation that the
project will have a significant effect on the environment
with regard to hazardous materials.
The DNR note confirms the information contained
in the revisions to the Environmental Assessment. The
FONSI remains valid despite Mr. Gonyo’s objections.
We will respond accordingly to his request for FHWA
to withdraw approval of the FONSI.
His other concerns regarding segmentation are ade-
quately discussed in the revisions to the EA.
R.11, Ex.5 (attached e-mail). On August 24, 2000, the FHWA
sent a letter to Mr. Gonyo responding to his July 7, 2000
No. 03-2644 13
letter. In accord with Mr. Madrzak’s e-mail, this letter
concludes that the April 2000 FONSI/EA remains valid and
meets the intent and requirements of NEPA.
Citizens expressed its concerns to the United States
Environmental Protection Agency (“U.S. EPA”) in various
petitions in the first five months of 2000, and on August 28,
2000, the WDNR sent a letter to Jan Pels of the U.S. EPA
explaining its conclusions regarding the extent of the
contamination plume and the Project’s effect on the plume.
R.38, Ex.1023, A.R. at 10166-10171. The letter concluded that
“[t]here is no evidence that existing private water supply
wells are being impacted by groundwater.” R.38, Ex.1023,
A.R. at 10171. As to the Project, it stated in full: “The WDNR
has also determined that the proposed WDOT road expan-
sion and bridge project on STH 164 will not have an adverse
impact on the ground water in the Ackerville area. The
rationale for this determination is detailed in the attached
memo from WDNR to WDOT.” Id. On January 12, 2001, the
U.S. EPA sent Mr. Gonyo a letter regarding his request for
an investigation of the Waste Management landfill. The
letter stated that the WDNR is in the process of “preparing
a Sampling and Analysis Plan for a [Site Inspection] of the
Old Town Dump site.” R.38, Ex.1024, A.R. at 10164-10165.
This “Old Town Dump site” is a landfill just south and
across the tracks from the Waste Management landfill, and
the WDNR and U.S. EPA believed this landfill may be the
actual source of the contamination. Id. at 10164.
On January 22, 2001, John E. Thresher, Jr., Citizens’
groundwater expert, provided Fauble with criticisms of
WDNR’s groundwater analysis at the Waste Management
landfill. This report discussed the extent and source of the
TCE, concluding a “reasonable case can be made” the Waste
Management landfill is the source. R.39, Ex.1025, A.R. at
12301-12304, 12307-12308. It also discussed arsenic, which
14 No. 03-2644
the report explained was in the vicinity of the landfill and
migrating toward Ackerville, and explained that the degree
and extent of arsenic is not known due to various factors.
The letter concluded with a strong request that an EA be
performed to address these concerns. The letter did not
discuss the Ackerville Bridge Project.
On February 26, 2001, EMCS Design Group issued a
report officially acknowledging the pilings for the Project
would extend below groundwater level. On July 10, 2001, a
public hearing was held regarding WDOT’s petition to the
Office of the Commissioner of Railroads of the State of
Wisconsin (“OCR”) for alteration and closure of crossings
for purposes of the Ackerville Bridge Project. At this
hearing, Mr. Gonyo and other citizens testified about their
concerns regarding the environmental impacts of the Proj-
ect, and Mr. Thresher, Citizens’ expert, testified as to his
conclusions. Mr. Bauman of WDOT also testified. On July
11, 2001, Mr. Thresher sent a follow-up letter to the hearing
examiner at the OCR hearing. In that letter, he restated his
position that contaminated water is moving towards
Ackerville and that “[d]riving pilings through such sedi-
ments may disrupt the contaminant distribution thereby
potentially contaminating additional private wells within
Ackerville.” R.39, Ex.1028, A.R. at 14559-14560.
In an e-mail dated July 26, 2001, Mr. Bauman of WDOT
referenced a June 2001 article in Civil Engineering analyzing
the environmental impact of pilings placed into contami-
nated soil entitled “Deep Foundations on Brownfield Sites.”
This article concluded, among other things, that “driven
piles can be used on even ‘brownfields’ sites without
causing adverse environmental effects. However, the proper
type(s) of piles must be selected to avoid such effects . . .
such as steel and possibly concrete to avoid internal flow.”
R.39, Ex.1030, A.R. at 13833.
No. 03-2644 15
Mr. Czarkowski of the WDNR, one of the authors of
the August 22, 2000 memo that found the pilings would
have only an insignificant effect on the groundwater, re-
sponded to Mr. Bauman by e-mail: “When I first reviewed
the environmental concerns regarding this project as part of
the team here at DNR, I was aware that pilings would be
driven below depths of 30 feet, which is where the ground-
water occurs. We do not dispute that a very low level of
[TCE] may exist in the groundwater.” R.39, Ex.1031, A.R. at
13827. Mr. Czarkowski went on to state that his opinion that
the pilings would not in any way affect groundwater flow
was based on the assumption the pilings would be filled
with solid material. He wanted to ensure that such was the
case so he could maintain his opinion, memorialized in the
August 22, 2000 memo, that the pilings “should not provide
a significant pathway for migration of groundwater.” Id.Mr. Bauman responded to Mr. Czarkowski on August 27,
2001, and confirmed that the pilings would be filled with
concrete. Id.On September 20, 2001, the WDOT attended a meeting
called by Wisconsin State Representative Suzanne Jeskewitz
to discuss Mr. Gonyo’s testimony at the OCR hearing.
WDOT’s “Public Communication Record” described the
meeting in its “Discussion Summary”:
Began to discuss parts of Mr. Gonyo’s testimony (13
points), but only completed first one on project cost and
bridge size. Discussion then went to John Thresher’s
statements on potential impact of bridge piling on local
groundwater contamination. Mr. Thresher states that in
his opinion the WisDNR did not do a sufficient amount
of study to determine the location of the contaminants
and that the bridge piling could transfer the contamina-
tion to area wells.
A.R. at 10453. In the “Point Made” section of the Record, it
16 No. 03-2644
stated in relevant part: “WisDOT did not agree with Mr.
Thresher’s assertion that contaminated groundwater in the
area could be impacted by our project. WisDNR has told
WisDOT that pilings from the proposed structure will not
cause contamination to spread to neighboring wells.” Id.On October 19, 2001, the OCR issued a final decision
granting the petition of the WDOT to alter and close the
railroad tracks in the vicinity of the project. In its final
report, the OCR laid out the pilings issue and WDOT’s
analysis of the issue, as supported by WDNR. It concluded:
“The environmental issues raised by the opponents have
already been adequately addressed by the environmental
assessment done by DOT. Requiring another EA or a full
EIS would only serve to delay an important safety project
without any likely environmental benefit.” R.39, Ex.1027,
A.R. at 14112.
On October 24, 2001, WDOT and WDNR representatives
attended the follow-up meeting to the September 20, 2001
meeting held by Rep. Jeskewitz regarding the contamination
and environmental effects of the project. One of the Public
Communication Records in the record includes a “Discus-
sion Summary” which described the substance of the
meeting:
SURE expert John Thresher’s position:
• Alleges that groundwater contamination plumes (TCE
and Arsenic) are approaching STH 164.
• Contends that pilings from new bridges would be a
mechanism for contaminated groundwater to enter
area wells (offered no proof).
• Believes that Waste Management Landfill is source of
contamination.
• Wants groundwater monitoring wells installed in STH
No. 03-2644 17
164 right-of-way to determine if contamination is
present.
• If contamination is not within right-of-way, pilings
will not cause contamination to enter area wells.
WisDNR’s position:
• Site has been monitored since about 1980. Contamina-
tion is present in shallow groundwater.
• Mr. Thresher’s information is based on 1986 data,
which is considered suspect.
• Based on existing site conditions, pilings could not be
a mechanism for the contaminated groundwater to
enter area drinking wells.
• There is no proof that contamination is migrating to-
wards STH 164. Appears that concentration of con-
tamination is reducing as expected.
• There is no definitive evidence that Waste Manage-
ment Landfill is source of contamination.
• Don’t believe monitoring wells are needed and can’t
legally make Waste Management install them.
• Recommend continued testing of private drinking
water wells and replacement if problem occurs.
WisDOT’s position:
• Have support from all the required agencies and have
followed all environmental requirements.
• Concur with WisDNR’s position on pilings.
• Cited article in ENR Magazine of study done by
University of New Orleans that displacement piles
would not likely form conduits for contamination
transfer (we are using cast-in-place concrete piling—
18 No. 03-2644
a displacement pile).
Rep. Jeskewitz and Sen. Darling will send letter to
WisDOT requesting installation of monitoring wells in
STH 164 right-of-way.
A.R. at 10440. In the next “Point Made” section of the
Record, it stated: “WisDNR and WisDOT believe there is
adequate proof to indicate that contamination has not
migrated to the STH 164 right-of-way nor will contamina-
tion in excess of Health Advisory Limits ever migrate to the
right-of-way. Further, pile driving will not cause migration
even if contaminants are present.” Id.On November 16, 2001, Mr. Gonyo sent a letter to
Terrence Mulcahy, then-Secretary of the WDOT. Id. at 10586.
This letter discussed a Town of Polk resolution opposing the
Ackerville Bridge Project and requested that the Project be
immediately ended. Id. A December 3, 2001 letter from
Secretary Mulcahy responded by acknowledging the
opposition but noting that safety is the primary goal of
WDOT and the bridge option provides for the best effectua-
tion of safety and other goals for the Project. Id. at 10587-
10588.
On December 11, 2001, the WDOT received another
inquiry from Wisconsin State Representative Michael
(Mickey) Lehman asking whether there was any plan to
clear up the contamination plume and whether additional
testing was possible. The WDOT responded on December
21, 2001, recognizing the concern but concluding:
The DNR has stated that the driving of piling into the
groundwater will not cause contamination to migrate
into area wells. Based on these statements from the
DNR, our position is that if drinking water well contam-
ination occurs, it will not have been caused by our
project and would fall under the jurisdiction of the
No. 03-2644 19
DNR. Therefore, I am forwarding your letter to Charles
Krohn, Southeast Region Water Leader, DNR, and
asking that they respond to your questions, since they
are experts on handling groundwater contamination.
Id. at 10575.
On December 13, 2001, the U.S. EPA sent a letter to Mr.
Gonyo responding to his letter explaining the “Resolution
of the Town of Polk Electors Opposing the Ackerville
Bridge” Project and the County J Project. This letter stated
that based on the information it had received from WDNR,
WDOT and FHWA, U.S. EPA believed the potential con-
tamination issues had been addressed adequately in the
respective EA and EIS for these projects. Id. at 10477. The
letter also responded to Mr. Gonyo’s request for a Federal
Superfund cleanup of the entire landfill area west of
Ackerville, Wisconsin. In that regard, the letter noted that
the environmental investigation report that U.S. EPA con-
ducted on the site revealed no direct contact threats to the
soil at the site and that there is no observed release of
groundwater that can be attributed directly to the site. Id.“Therefore, the U.S. EPA did not recommend further
investigation of the subject landfill.” Id.Another public meeting on the contamination plume was
held on January 30, 2002, at which State Representatives and
Senators requested installation of monitoring wells in
Ackerville. In a February 4, 2002 document entitled “Sum-
mary of the Groundwater Contamination in the Ackerville
Area Washington County, Wisconsin,” Mr. Thresher again
concluded that the contamination threatened Ackerville
residents and discussed the pilings. On February 26, 2002,
a document entitled “Public Health Assessment for
Ackerville Area Groundwater” was released by the Wiscon-
sin Department of Health and Family Services, Division of
Public Health, on behalf of WDNR, the Washington County
20 No. 03-2644
Health Department, and the Agency for Toxic Substances
and Disease Registery. The Assessment concluded: “There
is no relationship between the proposed bridge construction
project and area groundwater quality. The groundwater is
30 feet below the ground surface and will not be affected by
the bridge or road construction.” R.38, Ex.1039, A.R. at
10154.
On February 27, 2002, then-WDOT Secretary Gene E.
Kussart sent letters to the various state Representatives and
Senators who had requested testing at the January 30, 2002
meeting, stating: “Although the [WDOT] has conformed to
all environmental requirements for this project and [WDNR]
and [FHWA] have indicated that our improvement project
will not impact the groundwater, I have decided to accom-
modate your request.” R.39, Ex.1036, A.R. at 10545-10548.
These wells were installed by STS Consultants in the
vicinity of the Project for the purpose of “determin[ing]
potential impacts of upgradient groundwater contaminant
sources on areas of bridge pile support installation.” R.39,
Ex.1038, A.R. at 10086. In an April 8, 2002 memorandum to
“Files,” Mr. Bauman of WDOT noted the wells should be
installed before construction and tested within a week of
installation and quarterly for two years thereafter. The
memo also noted:
WisDOT intends to turn over the results of all tests to
the WisDNR for their use. It is our opinion that the
WisDNR will be responsible to pursue and oversee any
actions needed in response to the test results. The
WisDOT, Dept. of Health and Family Services and the
WisDNR all believe this project will not impact the
groundwater in the project area whether contamination
is present in the right-of-way or not. Therefore, we ex-
pect that regardless of what is found in the tested wells
the project will not be delayed or changed in any way.
No. 03-2644 21
R.39, Ex.1039A, A.R. at 10119. In an e-mail dated April 24,
2002, Mr. Wade of WDOT reached the following conclusion
based on the initial sampling results from the new monitor-
ing wells:
The confirmation of permeable aquifer materials,
upward hydraulic gradients, low contaminant con-
centrations, and lack of any apparent contaminant
source in the immediate project area all reinforce our
earlier conclusion that the project activities, including
the driving of piles, will have no significant impact on
the continuing migration of the contaminants in the
project area. No modification of the highway project
should be required.
R.39, Ex.1040, A.R. at 10079. In a May 2, 2002 memorandum
from Mr. Fauble of WDNR to Mr. Wade of WDOT, Mr.
Fauble stated that, per Mr. Wade’s request, he had reviewed
the initial monitoring data and that none of the data contra-
dict his and Mr. Czarkowski’s August 22, 2000 memo.
Specifically, he noted that TCE levels were well below state
enforcement standards, there were no detects of arsenic, and
there were very low VOC detects.
Construction began on the Project in May of 2002, in-
cluding the insertion of the pilings. On May 15, 2002, the
U.S. EPA sent a letter to U.S. Senator Russ Feingold of
Wisconsin concluding that the “U.S. EPA has determined
that the Ackerville project will not significantly impact
groundwater quality.” A.R. at 10474-10475. On June 25,
2002, the U.S. EPA sent “a follow-up letter” to a June 5, 2002
meeting that included Mr. Gonyo, other citizens and U.S.
EPA staff. The letter noted that EPA staff “confirmed and
reiterated” its position in the June 5th meeting that the “U.S.
EPA does not believe that the Ackerville project will
significantly alter long-term groundwater quality in this
area,” and the letter also stated the agency does not believe
22 No. 03-2644
sufficient reason exists to change its position. R.48 at 2.
By the time Citizens filed this lawsuit on July 3, 2002, 150
of the 177 pilings (84%) necessary for the Project already
had been inserted. On November 21, 2002, Mr. Bauman of
WDOT sent a memorandum with the new monitoring well
results. R.39, Ex.1046 at 1. The memo noted that TCE levels
were well below detectable limits, arsenic levels had
increased in two wells but were well below the DNR
Prevention Action Limit, and that WDOT continued to
believe the Project would not have a significant effect on the
groundwater in Ackerville. Id.
2. County J/Highway 164 Project (Project # 2748-01-01)
On April 9, 2001, a final Environmental Impact Statement
(“EIS”) was approved by the FHWA for the County
J/Highway 164 Project for distribution to agencies and the
public. On March 6, 2002, the FHWA adopted the selected
alternative that was set forth in the EIS for “WisDOT Project
I.D. 2748-01-01.” R.39, Ex.1045 at 12. This alternative
“widen[s] County J/WIS 164 on its present alignment, and
incorporates the existing roadway as part of the ultimate
4-lane facility.” Id. at VI. The Project extends for approxi-
mately 18 miles and abuts the Ackerville Bridge Project at
its northernmost end. Id. at IV. The key objectives for this
road-widening project include providing for increasing
traffic demands and addressing safety concerns due to the
traffic and current inadequacies of the roadway. Id. at IV-VI.
B. District Court Proceedings
On June 12, 2003, the district court denied Citizens’
motion for a preliminary injunction and ruled against
Citizens on the merits. Before turning to the merits, the
district court determined that the standing requirement was
satisfied by at least some of Citizens’ individual members,
No. 03-2644 23
as well as the association itself. It also held that Citizens’
claims were not moot or barred by the doctrine of laches
because Citizens had filed after 150 of the 177 pilings (84%)
necessary for the Ackerville Bridge Project were already in
the ground. Both of these issues were thoroughly and
correctly analyzed by the district court, and we shall not
further discuss them.
As to the merits, the district court first determined that,
overall, the defendants had taken the requisite “hard look”
at the environmental consequences of the Project. Second,
the court held that the defendants had considered suffi-
ciently reasonable alternatives and had “made a fully
informed decision to proceed with the alternative involving
the overpass structure.” R.52 at 54. Finally, the court de-
termined that the defendants made a “reasonable decision
in establishing the project termini” and that the Ackerville
Bridge Project had not been improperly segmented from the
County J/Highway 164 Project. Id. at 56.
II
DISCUSSION
A. “Hard Look” at Environmental Consequences
This court’s review of agency action under NEPA is
governed by the APA. See Indiana Forest Alliance, Inc. v.
United States Forest Serv., 325 F.3d 851, 858 (7th Cir. 2003).
The APA instructs courts to set aside agency action only if
it is “arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
Under this standard, our inquiry is “searching and careful”
but “the ultimate standard of review is a narrow one.”
Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989)
(internal quotations and citations omitted). We only must
24 No. 03-2644
ask “whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error
of judgment.” Id. “If an agency considers the proper factors
and makes a factual determination on whether the environ-
mental impacts are significant or not, that decision im-
plicates substantial agency expertise and is entitled to
deference.” Indiana Forest Alliance, 325 F.3d at 859. In the
context of NEPA, arbitrary and capricious review prohibits
a court from “substitut[ing] its judgment for that of the
agency as to the environmental consequences of its actions.”
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). In fact,
“[t]he only role” for a court in applying the arbitrary and
capricious standard in the NEPA context “is to insure that
the agency has taken a ‘hard look’ at environmental conse-
quences.” Id.NEPA sets forth a broad national commitment to pro-
tecting and promoting the environment. See Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Like
the APA, NEPA “does not mandate particular results, but
simply prescribes the necessary process. If the adverse
environmental effects of the proposed action are adequately
identified and evaluated, the agency is not constrained by
NEPA from deciding that other values outweigh the
environmental costs.” Id. (internal citations omitted). One
process required under NEPA is that all federal agencies
must prepare an “environmental impact statement” (“EIS”)
for “major Federal actions significantly affecting the quality
of the human environment.” 42 U.S.C. § 4332(2)(C); see also
Heartwood, Inc. v. United States Forest Serv., 230 F.3d 947, 949
(7th Cir. 2000). This report is “a detailed analysis and study
conducted to determine if, or the extent to which, a particu-
lar agency action will impact the environment.” Heartwood,
230 F.3d at 949.
In evaluating whether an EIS is necessary, Council on
No. 03-2644 25
Environmental Quality (“CEQ”) regulations instruct that the
term “significantly” in the statute requires consideration of
both “context” and “intensity.” 40 C.F.R. § 1508.27(a)-(b).
Intensity in turn requires agencies to consider, among other
factors, “the degree to which the proposed action affects
public health and safety”; “the degree to which the effects
on the quality of the human environment are likely to be
highly controversial”; and “the degree to which the possible
effects on the human environment are highly uncertain or
involve unique or unknown risks.” Id. § 1508.27(b)(2), (4),
(5).
These considerations are often spelled out in the pre-
liminary stages of a proposed project in an environmental
assessment (“EA”). An EA is a shorter, rough-cut, low-
budget EIS which is mandated when, as here, proposed
action is neither one normally requiring an EIS nor one
categorically excluded from the EIS process. See 40 C.F.R.
§ 1508.9; 23 C.F.R. § 771.115(c); Indiana Forest Alliance, 325
F.3d at 856. Among other information, it “provide[s]
evidence and analysis that establish[es] whether or not an
EIS or a Finding of No Significant Impact (’FONSI’) should
be prepared.” 40 C.F.R. § 1508.9(a)(1); see also Rhodes v.
Johnson, 153 F.3d 785, 788 (7th Cir. 1998).
In this case, Citizens alleges that the defendants failed to
take a “hard look” at the environmental consequences of the
Ackerville Bridge Project and that an EIS is required for the
Project under NEPA and its implementing regulations. In
assessing these contentions, we must, as a threshold matter,
state with precision the question at issue. Both parties agree
there are contaminants in the groundwater in the general
vicinity of the Ackerville Bridge Project. They disagree as to
the source of the contaminants and the extent of the threat
posed by the contaminants. Citizens claims the source is the
Waste Management landfill. The defendants are not sure
26 No. 03-2644
what the precise source is. Citizens claims the levels of con-
taminants are unsafe. The defendants believe they are not.
Regardless of the source and extent of the contaminants, the
key question is whether there is a nexus between the
Ackerville Bridge Project, which the defendants are imple-
menting and which NEPA and its regulations govern, and
the preexisting contamination in the general vicinity, which,
apart from the Project, NEPA and its regulations do not
affect.
In this action, the only possible mechanism by which
Citizens claims the Project will exacerbate this preexisting
condition is through the bridge pilings. In their view, when
driven into the groundwater, the pilings will create a zone
of permeability that will allow the contaminants to flow to
the private drinking water of Ackerville citizens. Thus, the
narrow question before us is whether the pilings needed for
the bridge will advance or exacerbate the migration of
contaminated water toward private wells in the Ackerville
area.3
3
Citizens puts a great deal of emphasis in its argument on the
allegation that the defendants did not adequately determine the
source and extent of the contamination, especially the extent of
arsenic, before proceeding with a finding of no significant impact
and with construction. See, e.g., Appellant’s Br. at 28, 31-32, 36-37.
As a threshold matter, we note that the defendants did explore
the levels of contamination both before and after the April 2000
EA/FONSI enough to determine that there was preexisting
contamination, at least in small amounts, and to determine that
the Project itself did not threaten to exacerbate the contamination
without some mechanism to advance it toward the Ackerville
drinking water. See R.38, Ex.1003, A.R. at 00002; R.38, Ex.1015,
A.R. at 00714; R.38, Ex.1020, A.R. at 12295. Nevertheless, Citizens’
argument misses the point. Again, we emphasize that the
(continued...)
No. 03-2644 27
Citizens, through its expert, Mr. Thresher, claim that “the
coarse grains along the boundaries of the driven pilings
would rotate due to the shearing thereby increasing the
porosity, and consequently the permeability, of the sands
and gravels near the pilings.” Appellant’s Br. at 34. This is
the principle of dilatancy, and in this case, it means the
driving of pilings will create a zone of permeability (a space
that chemicals can pass through) around the outside of the
pilings that would allow contamination from lower levels to
migrate upward and eventually into private drinking wells
and water. Id. Defendants through their experts at the
WDNR disagree and instead believe that the “relatively
small increase in vertical groundwater movement which
3
(...continued)
defendants’ liability under NEPA and its implementing reg-
ulations rests on a nexus between their Project and the preexist-
ing contamination. If the Project has no significant effect on the
contamination, the contamination is still a problem, but it is a
problem that does not fall under the jurisdiction of the FHWA
and WDOT. Rather, it falls under the U.S. EPA and WDNR which
are charged with maintaining the quality of groundwater for our
citizens. In fact, both in relation to and apart from this Project, the
U.S. EPA and WDNR have been monitoring the contamination
and its effect on the groundwater in Ackerville for some time. See
R.38, Ex.1024, A.R. at 10164-10165; A.R. at 10476-10477.
In sum, NEPA requires agencies to take a “hard look” at the
environmental consequences of their projects. Kleppe v. Sierra Club,
427 U.S. 390, 410 n.21 (1976). If an agency’s project does not itself
“significantly” affect the environment, then neither NEPA nor its
implementing regulations require an agency to perform an EIS or
to remedy a preexisting environmental problem merely because
the project happens to take place in the vicinity of that preexisting
environmental problem. See 42 U.S.C. § 4332(2)(C); 40 C.F.R.
§ 1508 (discussing “effects” which “are caused by the action”)
(emphasis added).
28 No. 03-2644
might be expected along open spaces surrounding even
several dozen pilings is insignificant compared to the
quantity of natural vertical movement.” R.38, Ex.1020, A.R.
at 12295. Again, we emphasize that we do not approach this
dispute as a panel of environmental experts attempting to
decide which party is correct. We only review whether the
agencies charged with carrying out this project took a “hard
look” at the relevant information and consequences and
made an informed judgment.
The April 2000 EA/FONSI for the Ackerville Bridge
Project does not contain a specific discussion of the effects
of the pilings. Rather, it discusses the required excavation,
noting it will not reach the groundwater, and concludes:
“The Department has determined that the potential for
encountering and impacting hazardous materials during
construction of this project does not exist. Therefore, there
is no purpose or need for preparation of an EIS.” R.38,
Ex.1003, A.R. at 00005. Other contemporaneous documents
do contain general conclusions that the pilings will have no
effect on the contamination. For example, the Addendum to
the Phase 1 Report, also released in April of 2000, states
without elaboration that it is “unlikely the pilings for the
structure supports . . . will cause an impact on plume
movement or concentrations.” R.38, Ex.1015, A.R. at 00714.
Likewise, Mr. Wade, a Hazardous Materials Engineer for
WDOT, concluded in a March 14, 2000 letter that “it is also
unlikely that project pilings or water detention/infiltration
basins will cause an impact on plume movement or con-
centrations.” R.38, Ex.1009, A.R. at 00728. Although based
on the evidence in the record, we believe the defendants
knew the pilings would extend into the groundwater when
No. 03-2644 29
the April 2000 EA/FONSI was issued,4 there is no “hard
4
The first, official, public acknowledgment that the pilings
would extend into the groundwater was an EMCS report dated
February 26, 2001. However, the defendants explain that they had
assumed before the issuance of the April 2000 EA/FONSI that the
pilings would extend below the groundwater, and though
ambiguous, the most plausible inference from the record is that
they in fact made that assumption. For example, the defendants
asked the question in a “Fact Sheet/Topics of Concern” dated
February 15, 2000: “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?” R.38, Ex.1008, A.R. at 00146. In a March 24,
2000 letter from Ken Wade of WDOT to EMCS, Mr. Wade stated:
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 . . . will cause an impact
on plume movement or concentrations.
R.38, Ex.1009, A.R. at 00728 (emphasis added). This language is
mirrored in the April 2000 Addendum. R.38, Ex.1015, A.R. at
00714. Furthermore, just months after the issuance of the April
2000 EA/FONSI, Mr. Gonyo wrote a letter to the FHWA re-
questing reconsideration of the FONSI, and this letter stated:
“[T]he pilings will have to be driven into and below the contami-
nated groundwater table.” R.38, Ex.1017 at 2. Finally, the WDNR
was involved in this Project well before the issuance of the April
2000 EA/FONSI, see R.38, Ex.1003, A.R. at 00005 (Basic Sheet 2)
(discussing “extensive coordination” with the WDNR in finding
no significant impact), and Mr. Fauble of WDNR later noted in a
correspondence: “When I first reviewed the environmental con-
cerns regarding this project as part of the team here at DNR, I
was aware that pilings would be driven below depths of 30 feet,
(continued...)
30 No. 03-2644
look” analysis to support the conclusion reached by the
defendants that the pilings would not have a significant
effect. Indeed, the defendants appear to acknowledge there
was not a “hard look” analysis of the effect of the pilings in
April of 2000; instead, the defendants rely on the post-
EA/FONSI, August 22, 2000 memo of their experts at
the WDNR as the basis for their “hard look.” See R.29 at 11
(defendants’ answers to district court’s questions) (“The
specific question as to how the pilings would affect ground-
water and more particularly, the movement of arsenic and
TCE was fully addressed after the FONSI on a number of
occasions by various persons.”) (emphasis added); Appel-
lees’ Br. at 49 (stating that “the timing of the final determi-
nation of the depth that the pilings would extend into the
ground is of little relevance based upon the findings the
WDNR reached in its August 22, 2000, memorandum”).
After the issuance of the final EA/FONSI, Mr. Gonyo
requested reconsideration of the defendants’ decision in his
July 7, 2000 letter to the FHWA. One concern specifically
raised is that “the pilings will have to be driven into and
below the contaminated groundwater table.” R.38, Ex.1017
at 2. The FHWA and WDOT were responsive to Mr.
Gonyo’s request and solicited the help of the experts at the
WDNR in reevaluating the Project’s impacts, including the
effect of driving the pilings into the groundwater table, in
order to respond to Mr. Gonyo. This exchange resulted in
the August 22, 2000 WDNR memorandum authored by Mr.
Czarkowski and Mr. Fauble, which states that “[d]riving
pilings to depths greater than 30 feet could potentially
encounter contaminated groundwater.” R.38, Ex.1020, A.R.
4
(...continued)
which is where the groundwater occurs.” R.39, Ex.1031, A.R. at
13827.
No. 03-2644 31
at 12296. However, the memo goes on to conclude that the
“relatively small increase in vertical groundwater move-
ment which might be expected along open spaces surround-
ing even several dozen pilings is insignificant compared to
the quantity of natural vertical movement.” Id. at 12297. As
required by NEPA, this conclusion was “based on a consid-
eration of the relevant factors,” Marsh v. Oregon Natural Res.
Council, 490 U.S. 360, 378 (1989) (internal quotations and
citations omitted), specifically, the makeup of the soil into
which the pilings were to be driven, R.38, Ex.1020, A.R. at
12296. It also was not “clear error of judgment.” Marsh, 490
U.S. at 378 (internal quotations and citations omitted).
Finally, the conclusion was arrived at by the defendants’
experts, on which they were entitled to rely to the exclusion
of Citizens’ expert. Id. (“When specialists express conflicting
views, an agency must have discretion to rely on the
reasonable opinions of its own qualified experts even if, as
an original matter, a court might find contrary views more
persuasive.”). At this point, the defendants had taken a
“hard look” and were in full compliance with NEPA and its
regulations.
Although we could stop here, we have gone to great
lengths in reciting the facts to demonstrate that from August
of 2000 to the beginning of the construction in May of 2002,
the defendants did not ignore Citizens’ concerns. Rather, the
defendants attended meetings with state legislators in
which Citizens’ representatives expressed their concerns,
responded to Citizens’ various requests for information and
reconsideration, ultimately agreed to install private moni-
toring wells to study the contamination despite the belief
the Project would have no significant impact on the contam-
ination, and reviewed, and had the WDNR review, the
results of the initial monitoring from the newly installed
wells and any effects those results might have on the
Project. In addressing Citizens’ concerns, the defendants
32 No. 03-2644
and WDNR also worked with other agencies including the
U.S. EPA, Wisconsin OCR, and the Wisconsin Department
of Health and Family Services, all of which confirmed the
defendants’ conclusion that the Project would not signifi-
cantly affect the groundwater contamination. To be sure, the
defendants did not change their position as result of Citi-
zens’ requests and challenges, but they were not required to
do so. See Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989) (stating that NEPA “simply prescribes
the necessary process” but “itself does not mandate particu-
lar results” (citations omitted)).
In taking a hard look at the environmental consequences,
the the defendants also made a reasoned determination that
an EIS was not required. As noted previously, an EIS is only
required for “major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(2)(C)
(emphasis added). According to CEQ regulations, “signifi-
cantly” requires an agency to consider the “context” and
“intensity” of a project’s environmental consequences. See
40 C.F.R. § 1508.27(a)-(b). Citizens claims the defendants
failed to consider three factors that CEQ regulations instruct
agencies to “consider[]” under the intensity prong. See id.§ 1508.27(b). First, it claims the defendants failed to consider
“the degree to which the proposed action affects public
health and safety.” Id. § 1508.27(b)(2). The defendants,
however, did consider this factor but found the Project, and
specific to this litigation, the pilings, would have an insig-
nificant effect. This factor must also be read in the context of
the regulation’s instruction that agencies consider
“[i]mpacts that may be both beneficial and adverse.” Id.
§ 1508.27(b)(1). The defendants found not only that the
negative environmental impacts of the Project were insignif-
icant, but also that the Ackerville Bridge Project was the best
way to solve serious safety problems with the current
roadway facility.
No. 03-2644 33
The defendants also did not fail to consider “the degree to
which the effects on the quality of the human environment
are likely to be highly controversial.” Id. § 1508.27(b)(4).
Citizens has met its initial burden of establishing that the
Project was highly controversial, as we recently defined that
term in Indiana Forest Alliance, Inc. v. United States Forest
Service, 325 F.3d 851, 858 (7th Cir. 2003) (“[T]his factor
considers whether there is a substantial dispute about the
size, nature or effect of an action in the relevant commu-
nity.”). However, that is only the first step in the analysis.
As we further explained in Indiana Forest Alliance, if the
plaintiff meets the initial burden,
the agency must consider the dispute and address the
concerns in its final decision. This two-step approach
recognizes that as long as the agency has taken a “hard
look” at the relevant issues involved in the preparation
of an EIS and satisfactorily explained its subsequent
decision, the agency decision should not be set aside.
Id. at 858. In this case, the defendants did just that. See R.38,
Ex.1020, A.R. at 12295-12296; R.38, Ex.1022, A.R. at 06225.
The mere fact that there is still disagreement or that Citi-
zens’ expert disagrees with the defendants’ experts does not
render the defendants out of compliance under this factor.
See Indiana Forest Alliance, 325 F.3d at 861 (citing multiple
cases for the proposition that scientific dispute does not
render an agency’s action arbitrary and capricious).
Finally, the defendants considered “the degree to which
the possible effects on the human environment are highly
uncertain or involve unique or unknown risks.” 40 C.F.R.
§ 1508.27(b)(5). Although they acknowledged uncertainty as
to the source and extent of the threat of the contaminants to the
Ackerville area, they found with certainty that the Project’s
effects on the contamination and environment were insignifi-
cant. That conclusion was informed and reasoned, and thus
34 No. 03-2644
cannot be second-guessed. See Marsh, 490 U.S. at 378. In
summary, we hold that the defendants took a “hard look”
at the environmental consequences and in doing so, made
an informed and reasoned determination that no EIS was
required for the Project.
Before moving on, we must address one last contention by
Citizens. Citizens argues that this analysis is faulty because,
temporally, our “hard look” analysis should extend only to
April of 2000, when the defendants formally issued the
EA/FONSI. The defendants did not stop with the issuance
of the EA/FONSI, however, and we believe neither should
our analysis. First, we do not believe this runs afoul of the
administrative record requirement. “[T]he focal point for
judicial review should be the administrative record already
in existence, not some new record made initially in the
reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The
“hard look” inquiry is focused on “the full administrative
record that was before the Secretary at the time he made his
decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 420 (1971) (emphasis added), overruled on other
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).
Although the formal “decision” of no significant impact was
made at the time of the April 2000 EA/FONSI in this case,
the defendants reconsidered their position pursuant to the
July 7, 2000 request of Mr. Gonyo. With the analysis of the
experts at the WDNR, as memorialized in the August 22,
2000 memo, the defendants took a “hard look” at the
consequences of the pilings and made a further “decision”
that the EA/FONSI was valid and thus there was no need
to withdraw the documents. Mr. Madrzak of the FHWA e-
mailed Mr. Tufts of the FHWA, the addressee of Mr.
Gonyo’s request, following completion of the August 22,
2000 memo: “The DNR note [August 22, 2000 memo]
confirms the information contained in the revisions to the
Environmental Assessment. The FONSI remains valid
No. 03-2644 35
despite Mr. Gonyo’s objections. We will respond accord-
ingly to his request for FHWA to withdraw approval of the
FONSI.” R.11, Ex.5 (attached e-mail).
The purpose of confining judicial review to the admin-
istrative record is to ensure that agencies adequately eval-
uate their proposed course of action before they act and do
not simply attempt to justify rash, uniformed actions
through “ ‘post hoc’ rationalizations” once they are aware
they are being sued. Citizens to Preserve Overton Park, 401
U.S. at 419 (quoting Burlington Truck Lines v. United States,
371 U.S. 156, 168-69 (1962)). The defendants in this case did
not begin construction until May of 2002 and were not
informed they were being sued until about the same time.
See R.52 at 40-41. Therefore, the documents in the record
that were developed in the months following the issuance
of the April 2000 EA/FONSI, including the August 22, 2000
memo, were analyzed approximately a year and a half
before the defendants even knew they were being sued and
took the action, the construction, in dispute. These doc-
uments establish that in reconsidering the decision to
release the EA/FONSI, the defendants did indeed take a
“hard look” at the possibility of increased contamination
caused by the pilings. This is not the kind of post-hoc
rationalization the Supreme Court has counseled against
through the administrative record requirement. See Citizens
to Preserve Overton Park, 401 U.S. at 419 (discussing the
invalidity of affidavits prepared for litigation). To now ig-
nore the analysis in the months subsequent to the formal
EA/FONSI would not only require us to elevate form over
substance, but it would also require us to ignore the funda-
mental purpose of NEPA, to ensure that agencies consider
the environmental consequences of their actions before they
act, which was satisfied in this case. See Marsh, 490 U.S. at
371.
36 No. 03-2644
Beyond the relevant administrative record, our position
might be criticized for looking past the date on which the
defendants officially stamped the EA/FONSI because these
documents are intended to be the culmination of
an agency’s environmental assessment. Cf. Southwest
Williamson County Cmty. Ass’n v. Slater, 976 F. Supp. 1119,
1123 (M.D. Tenn. 1997) (finding that the issuance of an EIS
is a final agency action), aff’d in part and vacated in part, 173
F.3d 1033 (6th Cir. 1999). NEPA and its regulations require
agencies to take a “hard look” at the “significance” of the
consequences of their actions before issuing an EA/FONSI,
see 42 U.S.C. § 4332(2)(C), but also contemplate the reality
that, after the formal issuance of an EIS or EA/FONSI, it is
often the case that new information comes to light or the
project changes. See Marsh, 490 U.S. at 370-84 (discussing
what is required of an agency under the regulations when
a project changes or new information comes to light after
the formal issuance of an EIS). Here, we have an analogous
situation. A known issue came into sharper focus after the
formal environmental documents were issued. The defen-
dants apparently had considered the effect of driving the
pilings into and below the groundwater table before the
April 2000 EA/FONSI, and had concluded that the pilings
would have no effect on the contamination. However, when
Mr. Gonyo requested reconsideration of the FONSI, the full
import of the issue became clear, and the defendants did a
reevaluation, specifically analyzing the effect of the pilings.
In this regard, the Supreme Court has instructed that
“NEPA does require that agencies take a ‘hard look’ at the
environmental effects of their planned action, even after a
proposal has received initial approval.” See Marsh, 490 U.S.
at 374. FHWA regulations implementing NEPA accordingly
require that “[a]fter approval of the . . . FONSI . . ., the
applicant shall consult with the Administration prior to
requesting any major approvals or grants to establish
No. 03-2644 37
whether or not the approved environmental document . . .
remains valid for the requested Administration action.” 23
C.F.R. § 771.129(c). As our analysis above demonstrates, the
defendants in this case took a “hard look” at the environ-
mental effects of the Project, specifically, the pilings, in the
months following the formal issuance of the EA/FONSI,
and determined the previous EA/FONSI remained valid.
This action put them in substantial compliance with NEPA.
Not only are agencies required to reevaluate their original
documents, but sometimes they are also required to supple-
ment formally the prior environmental documents. NEPA
itself does not expressly address post-decision supplements
to an EA/FONSI, and neither do the implementing regula-
tions. The regulations do discuss when an EIS must be
formally supplemented, and the Supreme Court has elabo-
rated on this requirement. See Marsh, 490 U.S. at 370-84; 40
C.F.R. § 1502.9(c); 23 C.F.R. § 771.130. Nevertheless, 23
C.F.R. § 771.129(c), quoted above, necessarily requires that
an inadequate FONSI be formally supplemented if it no
longer “remains valid.” Id. In this case, the defendants
determined that the impacts of the pilings were insignificant
and that the EA/FONSI remained valid; thus, no supple-
mentation was required. See Marsh, 490 U.S. at 385(“[H]aving [taken a ‘hard look’ at the proffered evidence]
and having determined based on careful scientific analysis
that the new information was of exaggerated importance,
the Corps acted within the dictates of NEPA in concluding
that supplementation was unnecessary.”); Price Rd. Neigh-
borhood Ass’n, Inc. v. United States Dep’t of Trans., 113
F.3d 1505, 1510 (9th Cir. 1997) (finding supplementation to
the EA/FONSI unnecessary when the FHWA and Arizona
Department of Transportation reevaluation revealed there
were no “discernable” differences in environmental effects
from the change in the project); Vine Street Concerned
Citizens, Inc. v. Dole, 630 F. Supp. 24, 29 (E.D. Pa. 1985) (“The
38 No. 03-2644
projected increase in the Expressway traffic is not quantita-
tively or qualitatively significantly different from what was
considered in the FEIS”; therefore, no formal supple-
mentation is required.). Furthermore, we agree with the
district court that the defendants, in effect, created a de facto
supplement to the EA, which was the basis of their “deci-
sion” that the FONSI was still valid. See Lake Region Legal
Defense Fund, Inc. v. Slater, 986 F. Supp. 1169, 1196 (N.D.
Iowa 1997) (finding that although a “formal ‘supplemental
EA’ has not been prepared in this case,” “the administrative
record indicates that the defendants have continued to
review the impacts associated with changed conditions in
the Highway 71 project”). Finally, we note that to remand
with an order that the defendants formally supplement the
EA and republish the FONSI at this late date, when NEPA’s
letter and spirit have been complied with, when the pilings
are in the ground, and when the bridge is up, would be
futile. See Cronin v. United States Dep’t of Agric., 919 F.2d 439,
443 (7th Cir. 1990) (noting that a court need not remand a
case if doing so would be futile).
B. Reasonable Alternatives
NEPA requires that agencies “study, develop, and de-
scribe appropriate alternatives” to major federal projects. 42
U.S.C. § 4332(2)(C)(iii) & (2)(E). The inquiry into consider-
ation of reasonable alternatives is “independent of the
question of environmental impact statements, and operative
even if the agency finds no significant environmental
impact.” River Rd. Alliance, Inc. v. Corps of Eng’rs of United
States Army, 764 F.2d 445, 452 (7th Cir. 1985). This does not
mean, however, that courts should ignore the context in
which alternatives are considered. When, as here, an agency
makes an informed decision that the environmental impact
No. 03-2644 39
will be small, a view which we are required to accord
deference, a “less extensive” search is required. Id. (“[T]he
smaller the impact, the less extensive a search for alterna-
tives can the agency reasonably be required to conduct.”).
Some courts frame this sliding-scale approach as a “rule of
reason” inquiry, which governs “both which alternatives the
agency must discuss, and the extent to which it must discuss
them.” See Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 195 (D.C. Cir. 1991) (quoting Alaska v. Andrus, 580 F.2d
465, 475 (D.C. Cir. 1978)). Again, our review is not of the
agency’s substantive judgment, but of the sufficiency of the
agency’s consideration of the reasonable alternatives. See
Methow Valley, 490 U.S. at 350 (“[I]t is now well settled that
NEPA itself does not mandate particular results, but simply
prescribes the necessary process.” (citations omitted)).
We have stated that logically and legally, an agency is
required to address three questions in considering alter-
natives. See Simmons v. United States Army Corps of Eng’rs,
120 F.3d 664, 668 (7th Cir. 1997). “First, what is the purpose
of the proposed project (major federal action)? Second,
given that purpose, what are the reasonable alternatives to
the project? And third, to what extent should the agency
explore each particular reasonable alternative?” Id.The defendants set forth 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 compli-
ance 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.
Given these three purposes, we hold the defendants
40 No. 03-2644
considered a sufficient number of reasonable alternatives
and explored them to the extent necessary for this Project.
See Simmons, 120 F.3d at 668. In its “Summary of the alterna-
tives considered” in the EA/FONSI, the defendants first
considered a “No Action” alternative, under which no
action would be taken other than routine maintenance. R.38,
Ex.1003, A.R. at 00013. However, they concluded this
alternative did not address any of the concerns with the
existing roadway facility. The defendants also discussed
their “Recommended Alternative,” which was eventually
implemented. Id. Finally, they considered four “Other
Alternatives,” but found them all lacking for various
reasons, including safety concerns and cost-efficiency. Id.The defendants also specifically responded to the alter-
native Citizens urged, and which Citizens now claims was
rejected for pretextual reasons. Citizens’ proposal included
re-aligning the intersection at STH 164 and STH 175 to a
right angle, reducing the steep hills along STH 164/STH 175
to a right angle, adding traffic gates at the railroad cross-
ings, and adding signals at the STH 164/STH 175 intersec-
tion. Citizens alleges that this option was rejected because
the defendants’ true primary motive for some time has been
a “desire to preserve a corridor for a possible future 4-lane
roadway.” Appellant’s Br. at 42 (quoting A.R. at 00004). This
purpose is why the defendants opted for building an
overpass structure instead of opting for its proposal, which
would adequately address the safety concerns. Id.As an initial matter, this view of pretextual motive is not
supported in the record. The EA/FONSI states:
The main purpose and immediate need for the STH 175
to STH 60 project is to correct a safety problem at the
STH 164/175 intersection, correct a hazardous at-grade
train crossing on STH 164 by building a bridge to cross
No. 03-2644 41
over the train tracks and reconstruct the existing 2-land
roadway to correct a deteriorating pavement situation.
A secondary focus of the project is to preserve a corri-
dor for a possible future 4-lane roadway.
R.38, Ex.1003, A.R. at 00004. This prioritization is confirmed
in multiple other documents. For example, the defendants
performed an “Accident Analysis Report,” which analyzes
the safety concerns necessitating this Project and provides
ample statistical data on the safety issues. R.38, Ex.1004,
A.R. at 05409-05415.
Regardless, the defendants specifically analyzed Citizens’
proposal and found it lacking with respect to all three
purposes of the Project:
Substantial impacts to the town of Ackerville would
occur by re-aligning either roadway. Adding gates at
the railroad crossings would not address the fact that
there are currently long delays due to the amount of
train traffic here. This will only worsen in the future
since Wisconsin Central Limited has plans to double the
train traffic on these lines. The installation of signals
does not guarantee safety. The close proximity of the
railroad tracks to the intersection may cause traffic to
back-up past the tracks while waiting to clear the
intersection. This proposal does not address the need
for the project in regards to state trunk highway stan-
dards. The 11% grade just north of the intersection,
inadequate shoulder widths, poor pavement structure,
and the inadequate stopping sight distances throughout
the project are all substantial features of this highway
which are not addressed. Also, the need for future
expansion to 4 lanes has not been addressed.
R.38, Ex.1003, A.R. at 00006.
Given that the environmental impacts of this Project were
42 No. 03-2644
found by the defendants to be insignificant, the defendants
satisfied the requirement that they consider reasonable
alternatives. We are not entitled to second-guess the defen-
dants’ reasoned and informed determination that the public
interest, including the public safety, would be better served
if the preferred alternative were built.
C. Segmentation
Segmentation, as the name suggests, addresses an
agency’s decision on where one project ends and another
begins. “In order to ensure meaningful evaluation of al-
ternatives and to avoid commitments to transportation
improvements before they are fully evaluated,” FHWA
regulations require that each action evaluated in an EIS or
FONSI:
(1) Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;
(2) Have independent utility or independent signifi-
cance, i.e., be usable and be a reasonable expenditure
even if no additional transportation improvements are
made; and
(3) Not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements.
23 C.F.R. § 771.111(f)(1)-(3).
“Piecemealing” or “segmentation,” which Citizens alleges
occurred in this case, “allows an agency to avoid the NEPA
requirement that an EIS be prepared for all major federal
action with significant environmental impacts by segment-
ing an overall plan into smaller parts involving action with
less significant environmental effects.” City of West Chicago
v. United States Nuclear Regulatory Comm’n, 701 F.2d 632, 650
(7th Cir. 1983). The purpose of segmentation review is not
No. 03-2644 43
for a court to decide whether or not an agency drew the
correct lines when putting the boundaries on its projects.
Rather, “[s]egmentation analysis functions to weed out
projects which are pretextually segmented, and for which
there is no independent reason to exist. When the segmen-
tation project has no independent justification, no life of its
own, or is simply illogical when viewed in isolation, the
segmentation will be held invalid.” Save Barton Creek Ass’n
v. FHWA, 950 F.2d 1129, 1139 (5th Cir. 1992) (internal
quotations and citations omitted). Thus, we are looking for
agency action that ignored, or gave insufficient weight to,
the factors set out in the regulations in an attempt to avoid
the requirements of NEPA.
Citizens claims the County J/Highway 164 Project was
impermissibly segmented from the Ackerville Bridge Project
to allow the defendants to avoid performing an EIS on the
Ackerville Bridge Project. The County J/Highway 164
Project is 18.1 miles and its northernmost point abuts the
Ackerville Bridge Project, which is 1.3 miles. Thus, Citizens
asserts, of the 19.4 miles of the highway being worked on,
only 1.3 miles will not be the subject of an EIS, and this 1.3
miles includes the contamination plume. Furthermore,
Citizens submits that the “logical terminus is Hwy. 60, not
an artificial part on a hilltop 1.3 miles south of Hwy. 60.”
Appellant’s Br. at 43.
We agree with the district court that these arguments are
not persuasive. In the EA/FONSI, the defendants explicitly
considered the three criteria for segmentation set out in 23
C.F.R. § 771.111, and gave a reasoned justification of how
their segmentation fit each factor. As to logical termini, the
defendants explained that “[s]ince the need to bridge the
train tracks is the driving force behind this project,” the
south termini for the Project was established just beyond the
bridge touchdown point. The north termini was established
44 No. 03-2644
as the STH 60/STH 164 intersection. See R.38, Ex.1003, A.R.
at 00004. Citizens argues that the Ackerville Bridge Project
is really just part of the road-widening plan being imple-
mented by the County J/Highway 164 Project. However, as
we noted above, we do not find that the record supports the
contention that the defendants have been pretextually more
concerned with road-widening than safety. Indeed, as
constructed, the bridge meets the immediate safety concerns
at this critical juncture of railroad and vehicular traffic. It
would be compatible with the roadway expansion of the
County J/Highway 164 Project only after modification.
Furthermore, our review is not to determine whether the
defendants made the best choice, but only whether they
made a choice that was informed and reasonable. See Save
Barton Creek, 950 F.2d at 1140.
The second factor, independent utility, is the most im-
portant factor in highway cases such as this. See id. (“In the
context of a highway within a single metropolitan area, as
the case at issue—as opposed to projects joining cit-
ies—courts have focused more on the factor of ‘independent
utility.’ ” (citations omitted)). With respect to this factor, the
EA/FONSI pointed out that neither the bridge construction
project, with its safety focus, or the County J/Highway 164
Project, with its expansion focus, require the construction of
any other projects to be usable.
Finally, as to the third factor, restriction of alternatives,
the Ackerville Bridge Project contemplates, rather than
restricts, future roadway projects, including the possibility
of a four-lane project if found to be needed. See R.38,
Ex.1003, A.R. at 00004. Indeed, making space for future
expansion was a “secondary purpose” for the Project in the
first place.
In sum, the defendants analyzed the relevant factors set
out in 23 C.F.R. § 771.111(f)(1)-(3), and came to a reasoned
No. 03-2644 45
conclusion. There is also no real evidence to support
pretextual motive. Accordingly, we hold there was no
improper segmentation in this case. See Save Barton Creek,
950 F.2d at 1139.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
46 No. 03-2644
Exhibit A
No. 03-2644 47
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-5-03