ELR Citation: ELR 21387
No(s). 89-3180 (D.N.J. Jul 2, 1990)

In an opinion designated as not for publication, the court holds that the Corps of Engineers' issuance of a permit under §404 of the Federal Water Pollution Control Act for construction of a resource recovery plant in Ridgefield, New Jersey, was not arbitrary and capricious. Construction of the facility requires the filling of 19 acres of wetlands. The Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service initially objected to the site, but withdrew their objections after mitigation conditions were placed on the permit. The conditions require that the post-project wetland value equal 140 percent of the wetland value lost by construction of the facility. The court holds that plaintiffs are estopped from arguing issues already litigated in state court. The state court litigation was based on different actions and statutes, so the doctrine of claim preclusion does not apply. However, the doctrine of issue preclusion bars plaintiffs from arguing that other sites are practicable alternatives, zoning is not a valid criteria in determining alternative sites, the facility can be built on less than a 45-acre site, and reliance on a study conducted by the county utility authority is arbitrary and capricious.

The court holds that the Corps' issuance of the permit was not arbitrary and capricious. The Corps adequately examined alternative technologies, such as recycling, composting, and other types of incinerators. Plaintiffs may not argue before the court for consideration of alternative sites that were not before the Corps during the application process. Even assuming the issue is appropriate for review, the Corps' decision that no alternative sites were available is not arbitrary and capricious. The Corps reasonably considered an area's zoning and proximity to residential areas in determining practicable sites. The court holds that the administrative record is sufficient for judicial review and rationally supports the Corps' decision to grant the permit. The court holds that the project is not contrary to the public interest.

Counsel for Plaintiffs
Timothy S. Haley
Gordon, Gordon & Haley
80 Main St., West Orange NJ 07052
(201) 736-0094

Counsel for Defendants
Jeffrey D. Smith, Ass't U.S. Attorney
970 Broad St., Rm. 502, Newark NJ 07102

Thomas H. Pacheco
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Stephen S. Sinisi
Hartmann, Brooks, Van Dam & Sinisi
Two Sears Dr., P.O. Box 1188, Paramus NJ 07653
(201) 599-0101

John M. Agnello
Cecchi, Brody & Agnello
34 Park Ave., P.O. Box 158, Lyndhurst NJ 07071
(201) 939-1550

Mark A. Chertok
Sive, Paget & Riesel
460 Park Ave., New York NY 10022
(212) 421-2150