Full opinion text
OPINION AND ORDER SCHEINDLIN, District Judge. TABLE OF CONTENTS I. INTRODUCTION.........................................................202 II. BACKGROUND...........................................................203 A. August 5 Opinion ......................................................204 B. Record Under Review During the Liability Phase..........................204 C. The Remedy Phase.....................................................205 D. The NBSA RIWP and Ongoing Deepening Projects........................207 E. The January 2006 Final Environmental Assessment........................208 1. Assessment of the Potential Impacts of the HDP on the RRFS...........208 2. Cumulative Impact.................................................211 3. Alternatives .......................................................212 4. Mitigation.........................................................213 a. Coordination...................................................213 b. Monitoring.....................................................215 III. APPLICABLE LAW.......................................................216 A. Ripeness..............................................................216 B. Mootness.............................................................216 C. NEPA Requirements...................................................217 1. EIS ..............................................................217 2. SEIS.............................................................217 3. Environmental Assessment..........................................218 4. Cumulative Impact.................................................218 5. Alternatives .......................................................219 6. Mitigation.........................................................219 7. Standard of Review.................................................220 D. Curing a NEPA Violation...............................................221 E. Remedy..............................................................223 1. Injunctive Relief...................................................223 2. Remand...........................................................224 IV. DISCUSSION.............................................................225 A. Ripeness..............................................................226 B. The Merits of Plaintiffs’ NEPA Claim ....................................226 1. Assessment of the Potential Impacts of the HDP on the RI/FS...........228 a. Resuspension and the Amount of Contaminants Below the Surface......................................................228 b. Cumulative Impact..............................................230 2. Alternatives .......................................................231 3. Mitigation.........................................................233 4. Conclusions Regarding NEPA Violations..............................234 C. Remedy..............................................................235 1. Irreparable Harm..................................................235 2. The Balance of Effects and the Public Interest.........................235 3. Adequacy of Legal Remedies ........................................237 V. CONCLUSION............................................................238 I. INTRODUCTION This opinion resolves the remedial phase of litigation stemming from the failure of the United States Army Corps of Engineers and Col. Richard J. Polo, Jr., as Commander and District Engineer of the Corps’ New York District, (collectively the “Corps”), to take a “hard look” under the National Environmental Policy Act (“NEPA”) at the consequences of a project to deepen shipping channels in the New York-New Jersey Harbor (“Harbor”) through dredging and blasting of the Harbor floor. Plaintiffs, a group of environmental organizations and concerned citizens, claimed that the Corps violated NEPA by not considering the impact of the Corps’ Harbor Deepening Project (“HDP”) on the United States Environmental Protection Agency’s (“EPA”) plan to study decades of industrial pollution and evaluate possible cleanup options for contamination in the Harbor. In an earlier opinion, I found that the Corps had violated both NEPA and the Administrative Procedures Act (“APA”). Plaintiffs now request that the Court order the Corps to prepare NEPA-compliant documentation pursuant to a schedule, with specific instructions on the elements and process, for completing the documentation. Plaintiffs also request an injunction prohibiting future contracting in connection with the HDP until such time as the Court approves the Corps’ final NEPA documentation. II. BACKGROUND The facts underlying this case are comprehensively set out in my Opinion and Order of August 5, 2005 (“August 5 Opinion”). Briefly, the HDP is intended to open the Harbor to the newer, larger, and deeper-bottomed cargo vessels on which the modern shipping industry depends. As part of the HDP, the Corps has been authorized to conduct the Kill Van Kull 45' Deepening Project, the Arthur Kill 41/40' Deepening Project, the Port Jersey 41' Deepening Project, and the 50' New York and New Jersey Harbor Deepening Project. In 2002, Congress ordered the Army Corps to consolidate each of these projects into one overall deepening project, known as the HDP. Part of the HDP will cut through highly contaminated sections of Newark Bay and surrounding waterways. This contamination is the result of years of heavy industrial use of the Bay and its tributaries. In particular, the Bay is contaminated with the by-products from the manufacturing of Agent Orange at the Diamond Alkali Chemical Plant, on the Passaic River, during the Vietnam War. On February 13, 2004, the EPA entered into an AOC, which added Newark Bay to the Diamond Alkali Superfund Site, as the “Newark Bay Study Area of the Diamond Alkali Superfund Site” pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERC-LA”). Under the direction of the EPA, Tierra Solutions, Inc. (“Tierra”) is carrying out a Remedial Investigation/Feasibility Study (“RI/FS”) on behalf of Occidental Chemical Corporation, successor to Diamond Shamrock Chemicals Company, pursuant to the terms of the AOC. The RI will determine the extent and nature of contamination in the Bay, and the FS will evaluate possible cleanup options based on what is learned from the RI. This process also contemplates the preparation of a Natural Resources Damages Assessment for the Diamond Alkali Superfund Site, in which natural resources trustees (the National Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife Service, and the New Jersey Department of Environmental Protection) will determine the injury to the natural resources, establish a plan for restoration of the natural resources, and determine compensation to the public for loss of services from the resources. A. August 5 Opinion Plaintiffs claimed that the Corps acted arbitrarily and capriciously, in violation of NEPA and the APA, by proceeding with the HDP without preparing a Supplemental Environmental Impact Statement (“SEIS”) to consider the possible detrimental effects of the HDP dredging on the RI/FS. The August 5 Opinion granted summary judgment to plaintiffs, holding that the “Corps failed to take a hard look at the potential impacts of dredging in the HDP on the RI and at methods of coordination with the EPA that might reduce those impacts, if any, and that the Corps’ decision to proceed without an SEIS in the absence of such a hard look was arbitrary and capricious.” I found the Corps’ NEPA review deficient for the following reasons: • The Corps “failed to give serious consideration to the potential impacts of dredging on sampling for the RI/FS, or the means by which those impacts could be minimized before awarding the Arthur Kill dredging contract.” • “[T]he record did not contain any substantive discussion of the form coordination between the EPA and the Corps will take, or how the effectiveness of that coordination would be monitored.” • The Corps did not do any “further analysis of the possible impact of dredging on the RI/FS” before March 11, 2005 when the Corps awarded the first contract for dredging in the Kill van Kull Channel. Based on these findings, I concluded that “the Corps must assess the impact of its dredging on the sampling required for the RI/FS before committing to a particular method of dredging, rather than waiting until dredging interferes with the sampling and causes unrecoverable delays to the potential cleanup process.” Finally, I ordered the Corps to “give full consideration to how cooperation between the EPA and the Corps can minimize the effects of dredging on the RI/FS before committing to a particular method of dredging, not after problems arise.” By agreement of the parties, I bifurcated the issues of liability and remedy. Having found liability, I now address the appropriate remedy. B. Record Under Review During the Liability Phase Beginning in 1980, the Corps produced over a dozen separate NEPA documents on the HDP. In December 1999, the Corps prepared a Final Environmental Impact Statement (“1999 FEIS”) to “identify, screen, evaluate and recommend a plan for channel improvements throughout the Port of New York and New Jersey.” In January 2004, the Corps assessed any changes to the project due to the consolidation of the dredging contracts into the HDP and produced a Limited Reevaluation Report and Environmental Assessment (“2004 EA”) that resulted in a Finding of No Significant Impact (“FONSI”). The August 5 Opinion considered only the limited “administrative record compiled by [the Corps] when it made the decision” under review. In an order dated May 9, 2005, I found that the Corps made two decisions that were relevant to a review of its NEPA compliance. On December 29, 2004, the Army Corps awarded a contract with respect to the Arthur Kill 40/41 project without preparing an SEIS. On March 11, 2005, the Corps awarded a contract for the S-KVK-2 project in the Kill van Kull Channel, a project which the Corps concedes is part of the HDP, again without reviewing the designation of the Newark Bay as a Study Area (“NBSA”) and the impact of the dredging on the RI/FS. The Corps’ NEPA documentation as of those dates, including the 2004 EA and the 1999 FEIS, was submitted to the Court for consideration in the liability phase. C. The Remedy Phase During the pendency of this action, the Corps began to evaluate the potential impacts of the deepening projects on the RI/FS in the form of a Draft Environmental Assessment on the Newark Bay Area of the New York and New Jersey Harbor Deepening Project (“Draft EA”). The Draft EA was published in June of 2005. It found that the designation of Newark Bay as a CERCLA Study Area did not alter the “existing characterization of resources in the study area or the proposed dredging plans and therefore [had] no effect on the previous analysis of impacts presented in the 1999 [FEIS] or the 2004 EA.” The Draft EA also relied on promises of coordination between the Army Corps and the EPA to ensure that no significant impacts to the RI/FS would occur as a result of the dredging or on the HDP as a result of the RI/FS. In September 2005, after this Court’s liability ruling, the Corps announced that it intended to publish an Amendment to the Draft EA (“Draft Amendment”) to further evaluate the impacts of the HDP on the RI/FS and the “methods of coordination with EPA that might reduce those impacts.” Because the sampling plans and the HDP are both time-sensitive, the Court ordered immediate briefing of the remedy issue once the Draft Amendment was published. The Draft Amendment was published on September 30, 2005 and was intended to provide a qualitative and quantitative analysis of the potential effects of the Corps’ dredging activities on the NBSA Remedial Investigation Work Plan (“RIWP”). The Draft Amendment also set out a coordination plan, intended to help the EPA and Corps avoid, minimize, and/or mitigate any possible effects of the dredging on the sampling work and ensure that the goals of the RI/FS are met. In October 2005, plaintiffs sought injunc-tive relief, arguing that the Corps had not cured the NEPA violations found by the Court. I held a hearing on December 8, 2005, at which time the Corps promised to publish the Final EA by December 31, 2005. Based on that representation, I postponed consideration of the appropriate remedy until after the Final EA was published and the parties had an opportunity to address its adequacy. On January 6, 2006, the Corps published the Final EA and Final Amendment to the EA (collectively the “EA”). The EA concludes that “the effects of dredging on the ability of [the] USEPA to achieve the RIWP study goals are determined to be insignificant and to have no material bearing on EPA’s decision-making process regarding potential remedies.” The EA again recommends a FONSI for the dredging projects, thus making the preparation of an SEIS unnecessary. On January 27, 2006, plaintiffs renewed their request for injunctive relief and filed a supplemental memorandum of law. The Corps also filed a supplemental memorandum of law in opposition to plaintiffs’ request. Both parties addressed the portions of the Final EA and the Final Amendment to the EA that were revised from the draft versions. For purposes of the remedy phase, a court is not limited to the administrative record. Evidence falling outside the administrative record is relevant to whether relief should be granted if such evidence shows “that an agency has rectified a NEPA violation after the onset of legal proceedings.” Thus, the parties agreed to submit to the Court all materials concerning the Corps’ NEPA compliance that were before the agency between the close of the administrative record and the date of the Final EA. This included, inter alia, the RIWP, multiple emails between the Corps and the EPA, sampling schedules, memoranda of record on coordination meetings, public comment received by the Corps in response to the Draft EA and the Draft Amendment, the Corps’ Draft EA, Amendment to the Draft EA, and the Final EA. These documents were fully submitted, with supplements, by February 17, 2006. D. The NBSA RIWP and Ongoing Deepening Projects In September 2005, Tierra published “revision 1” of the RIWP, laying out goals and objectives for the EPA’s study. An essential component of the study will be to perform sampling on surface sediment, subsurface sediment, and water in the Bay to determine the distribution and concentration of contamination. The study will also help develop a historical record of sediment deposition, as any record of sediment deposition which may have existed has been modified or eliminated by substantial dredging activities in the past. Under the current plan, the RI has three goals: • RI Goal 1: Determine the horizontal and vertical distribution and concentration of [chemicals of potential concern (“COPCs”)] for the Newark Bay Study Area sediments. • RI Goal 2: Determine the primary human and ecological receptors ... of [COPC] contaminated sediments in the Newark Bay Study Area. • RI Goal 3: Determine the significant direct and indirect continuing sources of the [COPCs] to the sediments in the Newark Bay Study Area. A phased sediment investigation sampling program is planned to address the first goal. The primary objectives of this first phase of sampling are to: • support further development of the preliminary conceptual site model and verify that the geomorphic areas used for sampling are appropriate for future programs; • estimate the approximate depth of a critical ‘horizon’ in the sediment bed • better understand broad patterns of constituents in both the surface and subsurface sediments, and attempt to preliminarily identify ‘hot spots’ through statistical analyses; and • confirm that the current analytical chemistry and radiochemistry suite is appropriate for future testing; and • determine data needs for Phase II. Sampling under the first phase of this sediment investigation began on October 24, 2005. In addition, deepening projects in the Arthur Kill and Kill van Kull contract areas are currently either underway or already complete. The Corps awarded the first contract for dredging in the Arthur Kill Channel on December 29, 2004. It has since proceeded with the Kill Van Kull 45’ deepening project. In August 2005, the Corps began to coordinate its dredging activities with EPA’s sampling plans in areas affected by these two projects. As a result of consultations with the EPA, the Malcolm Pimie consultants, and the technical project managers to the EPA on the Newark Bay Study, the Corps concluded that the deepening projects would not affect the initial sampling that the EPA planned for the fall of 2005. The Corps and the EPA have since held regular monthly meetings. E. The January 2006 Pinal Environmental Assessment There are several aspects of the EA worth describing in some detail. These include the EA’s assessment of the potential impacts of the HDP on the RI/FS, analysis of the cumulative impact of the dredging, alternatives analysis, and coordination and monitoring provisions. 1. Assessment of the Potential Impacts of the HDP on the RI/FS The Corps concludes that the dredging will not have significant impacts on the RI/FS sampling. The Corps’ discussion is divided into three geographical regions: (1) navigational channels, (2) port channels, and (3) areas adjacent to the dredged areas, including tidal flats. The discussion regarding the navigational channels and port channels explains that while dredging is slated to occur in the same area as sampling, dredging will not adversely affect sampling in those regions. The discussion regarding “areas adjacent to the dredged areas” assumes that most dredging will not occur in the areas outside the channels but that resuspended sediments may be redeposited outside the dredged areas, making it necessary to conduct a quantitative analysis of this resuspension. The EA begins by discussing the effect of dredging on surface and subsurface samples in the navigational and port channels. The EPA plans on taking three subsurface samples for each of the coring locations in the navigational and port channels. In its discussion regarding this subsurface sampling, the EA assumes that the samples will be taken to “evaluate historical deposition” and concludes that dredging will not affect the EPA’s ability to “collect historical data.” The EA explains its conclusion by pointing to the RIWP’s comment that “the [informational] value of vertical segments [in the navigational channels] is expected to be relatively low,” thus intimating that the EPA will not rely on those cores. The EA notes that the EPA will instead rely on “data collected in the flats” for its historical analysis and avoids the simple question of whether dredging will affect any other uses of the subsurface sampling in the navigational and port channels. Notably, a certain amount of dredging will occur outside the channels, in the tidal flats, “as part of the channel widening that is anticipated in the HDP.” The EA’s discussion does not address whether dredging in those areas will affect EPA’s ability to collect historical data or whether it will affect the interpretation of data already collected from the tidal flats. For surface samples being taken in the navigational and port channels, the EA focuses on samples taken before the HDP dredging and again concludes that the utility of these samples will not be affected by that dredging. The EA states that the samples will be taken in a dynamic portion of the channel which has been subject to dredging and multiple disturbances from ships and storms over the years. Thus, these samples will represent a record of “material deposited since the previous dredging event, in some combination with material left after the last dredging event.” If the sediment is dredged again as part of the HDP, the EA notes that the samples taken before the HDP dredging will remain useful because they will “represent the contaminant data of recently settled material.” The EA also finds that removal of sediment will not affect the utility of surface samples; but if it does, more samples can be taken in other areas, such as recently dredged areas. The EA next assesses the effect of dredging on samples taken in areas “adjacent to the dredged areas.” As the Corps noted, dredging in the channels may “indirectly affect the interpretation of the data from ... sediment cores [taken in areas adjacent to the channels] by causing contaminated sediments from the channels to be resuspended and deposited onto the sediment surfaces in areas where such cores will be taken.” In order to make this assessment, the Corps analyzed the effect of resuspension on contaminant concentrations. The Corps asserted that it studied the “(1) the amount and spatial extent of sediments that are resuspended from channels by dredging, (2) the concentrations of contaminants of those resus-pended sediments and (3) the resulting effect on the chemical analyses performed on the Phase I sediment cores taken from adjacent areas.” For this discussion, the EA relies on: (1) two resuspension studies it conducted in 2001 and 2005; (2) sediment data from several studies of contaminant concentrations in resuspended material in the Bay; and (3) the analysis of 104 cores which were collected during recent dredging in the NBSA and assessed for the presence of 2,3,7,8-tetrachlorodi-benzo-p-dioxin (“TCDD”). The EA focuses on whether dredging and resuspension would increase the concentration of contaminants in the surface sediments. The EA compares the concentration of contaminants measured beneath the surface with that of contaminants on the surface. It uses average concentrations from each dredging contract area to make this comparison. The EA relies on cores that were collected “from depths required to fully capture the silt material that will be removed from dredging.” After calculating these averages, the EA assesses the potential increase in surface level contamination from dredging. For Newark Bay and Kill van Kull the Corps found that “average concentration of contaminants measured ... were similar to or less than concentrations in ' the surface sediments, indicating that resuspended dredged material will not likely increase surface sediment contaminant concentrations.” For Arthur Kill, average concentrations of TCDD “were similar to concentrations in the surface sediments,” however, “[a]verage concentrations of the other compounds in Arthur Kill composite cores were greater than the overall averages for surface sediments.” Because of the greater contaminant levels in the Arthur Kill cores, the EA analy-ses the effects of dredging on depositions in the Arthur Kill flats. The analysis concludes that any increase in surface level contamination would be negligible and would not affect the sampling. For example, it notes that “the contaminant concentrations in 6 in. surface sediment core segments would be increased by no more than 5% for all chemicals due to the dredging of Arthur Kill sediments.” Of special note here is the EA’s reliance on averaging. The EA states that “it is possible that local variation in contaminant concentrations and in the dynamics of re-suspension and circulation may cause local variation in effects of the dredging on surface sediments.” To assess whether that calls into question its use of averaging, the Corps looked at a limited number of core samples for the presence of TCDD. It compared the concentration of TCDD in the cores with an elevated concentration to other cores in the vicinity. The Corps found that the cores in the near vicinity to the cores with an elevated concentration did not exhibit high levels of contaminants. Thus, it appeared that elevated concentrations were of “limited spatial extent,” that the surface concentration of TCDD would be “unlikely to change” due to resuspension, and that the use of averaging was appropriate. The EA con-eludes that (1) the effects of resuspension from dredging in areas where there may be an elevated concentration of contaminants will be limited, and (2) that this analysis is “relevant to the rest of the EA.” However, the Corps notes that “as additional data becomes available this issue will be reevaluated.” In conclusion, the EA finds that for Goal 1 of the RIWP (1) the deepening project will have no significant effects when it is conducted after sampling of cores in the channels or in the areas adjacent to the channels, (2) dredging during sampling in both these locations will have no significant effect on the samples and any impacts will be mitigated by the coordination plan, (3) dredging in the channels prior to sampling will have no significant impact on the sampling, but the coordination plan and efforts to identify alternative sampling locations where needed will mitigate any effects, and (4) dredging prior to sampling in the areas adjacent to the channels will have no significant effect. The EA also concludes that no combination of dredging before or after sampling in channels or in the areas adjacent to the channels will have significant effects on Goals 2 and 3 of the RIWP. 2. Cumulative Impact The EA concludes that the cumulative effects of operation and maintenance dredging will likely be insignificant, but that coordination between the Corps and the EPA'is planned “to ensure that each' agency’s program goals are not adversely affected.” In reaching this conclusion, the EA notes that currently only three sampling locations are “within areas potentially planned for federal maintenance-dredging,” and, because the dredging will not occur until May 2006, it will not affect those samples. The EA also notes that in the future “sampling and testing will be performed prior to every episode of 'federal maintenance . dredging.” The Corps will use these tests “to determine whether the sediments will adversely affect the RI/ FS” and' share the information with the EPA. 3. Alternatives The EA contains two discussions of alternatives to the HDP. First, in a section called “environmental effects and consequences” the EA summarily notes that the Corps considered the consequences of the “no action alternative” in its 1999 FEIS. The EA notes that the consequences of this alternative — namely maintaining the status - quo — were “primarily related to cost” and that the “no action impacts were determined to be potentially more damaging to the environment as resuspension of potentially contaminated sediments due to man-made causes ... and natural storm' events would occur at more intense and greater frequencies as compared to constructing the Recommended Plan.” Second, the EA focuses on certain dredging best management practices, which were • proposed by the public and. plaintiffs as. methods for reducing the-amount of resuspension of sedipient and. contaminants during dredging, The-analysis of best management practices began as a discussion of ways to “minimize'the potential for adverse environmental impacts from dredging.” • In the Draft EA, best management practices ■ were contained in an appendix and noted in an’ “errata sheet” attached to the'-' Draft ■ Amendment. • In the Final EA, the best management practices section-was- enlarged-to include more options and relabeled as “best management prac-. tices — alternative analysis.” The commentary formerly found in the errata sheet was moved to an appendix to the EA. The analysis begins with certain protocols- which had been already addressed: the use of an environmental bucket (a lightweight bucket, without teeth, that' has a-variety of-.flaps to keep , the sediment from flowing back into the water during' hoisting), an environmental bucket in Historic Area Remediation Site (“HARS”)-suitable clay, silt fences and turbidity curtains, cofferdams, air barriers, and blasting standards. The appendix to the Final EA also includes several new dredging protocols: positioning software and sensors, rinse tanks, bucket speed restrictions, restrictions on hydraulic dredges, turbidity monitoring and performance standards, barge overflow standards, and adaptive management. In addition, the EA notes that the Corps has already implemented several of the suggested best management practices, such as the use of environmental buckets. The Corps rejected certain practices, such as positioning software, but noted that some of them may merit further investigation. The Corps concluded that the other alternative protocols suggested were “inappropriate for navigational dredging, or would unnecessarily increase the cost and time to complete the HDP with only a modest if any decrease in the already significant impacts on the RI/FS study goals.” The Corps also promised, through the use of adaptive management, to modify its dredging contracts should monitoring and testing demonstrate that different methods need to be adopted. 4. Mitigation a. Coordination The EA provides for a “coordination plan” to “ensure that impacts on the EPA’s remedial investigation and feasibility study, and possible future environmental remediation, of the [NBSA] from dredging activities are identified, avoided, and minimized to the fullest extent possible.” The two-page plan establishes a coordination team made up of the Corps, the EPA, the United States Coast Guard, the Natural Resources Damages Trustees (the United States Fish and Wildlife Service, National Marine Fisheries, the New Jersey Department of Environmental Protection, the New York State Department of Environmental Conservation), and the Port Authority of New York and New Jersey. In an appendix, the EA identifies the names and titles of specific individual representatives who will participate in the coordination plan on behalf of each agency. The plan is co-chaired by representatives of the Corps and of the EPA, Region 2. Goals are set and a monthly meeting is scheduled to be held at the offices of the Corps and the EPA on an alternating basis. Meetings may be cancelled by the co-chairpersons “if there is no need to share information.” The plan establishes that during the meetings the team will (1) update each other on current and future activities in the NBSA, (2) share information on respective projects in the Area, and (3) “resolve outstanding issues.” The EA notes that as of the date it was issued, several sampling locations had already been moved in order to avoid any interference from dredging operations. Notably, the RIWP relies on promises of-coordination. For example, the RIWP explains that during the sampling Tierra will meet with the Corps to “decide if select core locations need to change due to ongoing dredging activities” in the navigational and port channels. However, Tier-ra is not included in the EA’s Coordination Plan team. Instead, a Tierra representative attends the coordination meetings on a sporadic basis and an EPA representative typically provides the sampling update. Since the publication of the Draft Amendment, the Corps also added a “dispute resolution” section to the coordination plan. This section was adopted after plaintiffs’ original brief in this litigation noted the lack of any kind of dispute resolution mechanism. The current plan provides for a tiered dispute resolution mechanism. Team members are first directed to resolve the dispute. If they cannot resolve the dispute within seven days, “the issue will be raised to the agency supervisors of the team- members” with the dispute. If unresolved, again within seven days, the dispute is referred to the New York and New Jersey Harbor Senior Partners (senior representatives of each agency). The Corps relies on coordination to mitigate any impact that the HDP could have on some aspects of the RI/FS. First, as noted, it relies on coordination to mitigate any impacts of maintenance dredging on the sampling. Second, tifie EA notes that “it is difficult to evaluate what effect [the HDP] dredging may have upon future [natural resource] damage assessment activities” because those determinations have not yet been made. However the EA provides for “coordination with the natural resource trustees” so that the effects of dredging on the process will be “minimized to the fullest extent practicable.” There is no provision for assessing or reviewing the effectiveness of this coordination. b. Monitoring The Corps does intend, however, to rely on a monitoring program to “evaluate the extent of resuspension of sediments caused by dredging” throughout the life of the HDP. The resuspension monitoring will be implemented in several ways. First, a Corps Construction Field Office Inspector will monitor the dredging activities to ensure “quality assurance” and will require an “inspector’s form,” which contains the: (1) date and time of inspection, (2) type of bucket, (3) flaps on environmental bucket intact and operable, (4) hoist speed, (5) no barge overflow (if appropriate), (6) placement of dredge material in barge, and (7) corrective action taken (if necessary). A member of the Corps’ Planning Division will also conduct unannounced inspections with the same inspector’s form, on the dredge, from an alternate vessel, and from the shoreline. Pursuant to water quality certification requirements, which is governed by the state of New Jersey, the Corps is also required to submit a “dewa-tering form” to the state environmental agency on a weekly basis, regarding pumping and discharging of sediment. In addition, the Corps will perform a Total Suspended Solids (“TSS”) Monitoring Program, to sample suspended sediments due to dredging activities. The Corps notes that the Monitoring Program has been modified in response to plaintiffs’ comments to “employ [an optical backscat-ter sensor] in such a manner as to measure turbidity at multiple locations and capture temporal variation in plume structure, to conduct multiple surveys of the plume via [an acoustic Doppler current profiler,] and to use a sufficient water sample size to determine the relationship between turbidity and TSS measures.” Through these mechanisms, the Corps will constantly monitor the resuspension of sediments caused by dredging and dredge plumes. The Corps will rely on monitoring to coordinate certain phases of dredging with sampling. For example, water samples will likely be taken as part of the RI/FS. The EA notes that monitoring data from the dredging will provide ' guidance on when to conduct the water sampling. The Corps expects monitoring data to be helpful to both the Corps and the EPA’s RUFS. III. APPLICABLE LAW A. Ripeness The ripeness requirement is designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over, administrative policies.” It also protects “the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” A court must evaluate “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” The Supreme Court has noted that because NEPA is designed to guarantee a particular procedure rather than a particular result, “a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.” For example, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an [EIS] even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. Thus, where the allegation is that an agency’s final NEPA documentation fails to comply with NEPA procedure, there is no doubt the agency’s determination is ripe for judicial review. B. Mootness The jurisdiction of a federal court is limited to cases and controversies. Thus, a federal court lacks authority “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” “A case or controversy becomes moot either when the injury is healed and only prospective relief has been sought, or when it becomes impossible for the courts to redress the injury through the exercise of their remedial powers.” “[I]t is not appropriate to order injunctive relief regarding a project if the agency corrects violations of NEPA or agency regulations prior to implementation of the project.” Where evidence outside the agency’s record demonstrates that the NEPA violations were corrected, and an injunction would serve no remedial purpose, a court should not issue an injunction. C. NEPA Requirements 1. EIS The procedural requirements of NEPA are intended to ensure that the “broad national commitment to protecting and promoting environmental quality ... is ‘infused into the ongoing programs and actions of the Federal Government.’ ” “NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Thus, NEPA requires federal agencies to prepare a detailed EIS for “major Federal actions significantly affecting the quality of the human environment ... on ... (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action.” 2. SEIS' An agency’s obligations under NEPA do not end with the preparation of an EIS. The agency may be required to prepare an SEIS “if there ‘are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.’ ” An agency’s determination whether to prepare an SEIS in light of new information or circumstances is governed by a “rule of reason.” “[A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmaking intractable.” However, an agency must prepare an SEIS whenever major federal action is yet to occur which the new information shows will affect the quality of the human environment in a significant manner or to a significant extent not already considered. As with the decision to prepare an EIS, “[e]lose calls should be resolved in favor of preparing a SEIS.” If the agency determines that the new information is not sufficiently significant to require an SEIS, the agency is not necessarily required to produce a formal NEPA document explaining its decision. “The fact that effects are only a possibility does not insulate the proposed action from consideration under NEPA, but it does accord an agency some latitude in determining whether the risk is sufficient to require preparation of an EIS.” 3. Environmental Assessment At times, the need to require or not require an EIS is clear. An agency’s regulations may require an EIS, or a particular action may be categorically excluded from that requirement. If the requirement for an EIS is not clear, however, the Council of Environmental Quality (“CEQ”) regulations allow an agency to prepare an EA in order to determine whether there will be a significant impact from the project. If the agency concludes in the EA that there will be no significant effects from the proposed project, it may issue a FONSI in lieu of an EIS or SEIS. The EA is to be a “concise public document” that provides sufficient evidence and analysis for determining whether to prepare an EIS and a comprehensive assessment of the impacts of the project. An EA must have “brief discussions of the need for the proposal, of alternatives ... of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” “[T]he conclusions in the EA must be supported by ‘some quantified or detailed information,’ and the underlying environmental data relied upon to support the expert conclusions must be made available to the public” to allow for informed public comment on the project. The EA should be prepared at the “ ‘earliest possible time to insure that planning and decisions reflect environmental values.’ ” 4. Cumulative Impact The CEQ’s regulations also require that agencies consider the “cumulative impact” of a proposed project. Cumulative impact denotes “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 5. Alternatives Federal agencies must “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” The purpose of this requirement is to provide evidence. that the agency considered different methods for obtaining its goal and to give the agency the ability to balance and weigh factors related to the different alternatives before making its choice to proceed with the project. The consideration of alternatives “is the heart of the" [EIS].” An agency issuing an EIS must “[r]igorously explore and objectively evaluate all reasonable alternatives,” consider a “no action” in which it is assumed that the project will not go' forward, “[i]nclude reasonable alternatives not within the jurisdiction of the lead agency,” and “[ijdentify the agency’s preferred alternative.” Where an agency has made a valid FONSI, the range of alternatives it must assess is necessarily more limited than for an EIS, however the requirement remains important. Thus, when the agency has opted to begin the process with an EA, the document must include “brief discussions of the need for the proposal, of alternatives [to the proposed action], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” An agency “need not consider an infinite range of alternatives, only reasonable or feasible ones.” The discussion “need not be exhaustive,” but it should be “sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned.” 6. Mitigation One important element of NEPA is its requirement that an agency discuss methods for mitigating adverse environmental consequences. An agency’s NEPA documentation must “[i]nclude appropriate mitigation measures not already included in the proposed action or alternatives.” “When the adequacy of proposed mitigation measures is supported by substantial evidence, the agency may use those measures as a mechanism to reduce environmental impacts below the level of significance that would require an EIS.” However, “agencies should define ‘significance’ broadly and not rely on proposed mitigation measures as an excuse to avoid preparing an EIS.” “[Mitigation measures have been found to be sufficiently supported when based on studies conducted by the agency ... or when they are likely to be adequately policed.” For example, where a “proposal [was] modified prior to implementation by adding specific mitigation measures which completely compensate^] for any possible adverse environmental impacts stemming from the original proposal, the statutory threshold of significant environmental effects [was] not crossed and an EIS [was] not required.” A proposed mitigation measure should be accompanied by some level of assurance as to its efficacy. An agency must study the likely effects of the measure, propose monitoring to determine how effective the planned mitigation would be, and consider alternatives in the event the measure failed. Otherwise, an agency may not rely on that mitigation measure to reduce environmental or cumulative impact below the level of significance that would require an EIS or an SEIS. 7. Standard of Review The Administrative Procedure Act (“APA”) governs judicial review of an agency’s compliance with NEPA. The APA provides that a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ... [or] without observance of procedure required by law.” An agency’s decision is accorded a “presumption of regularity,” and the party challenging the decision has the burden of proof. Review of an agency’s decision not to supplement an EIS is controlled by the “arbitrary and capricious” standard of section 706(2)(A) of the APA. A reviewing court must make a “searching and careful” inquiry into “whether the decision was based on a consideration of.'-the relevant factors and whether there has been a clear error of judgment.” In the Second Cir- ■ cuit, this review has two steps. First, the ■court considers “whether the agency took a-‘hard look’at the possible effects of the proposed action.” Second, if the court' is.satisfied that the agency took a hard look,' the court must then determine “whether the agency’s decision was arbitrary or capricious.” An agency’s decision'whether to issue- an EA or an SEIS, its consideration of cumulative impact and alternatives for the proposed project, and its proposal for mitigation measures are all subject to this inquiry. D. Curing a NEPA Violation After a NEPA violation has been found, a court must assess any new environmental review undertaken by that agency-before deciding on an appropriate remedy. While agencies are regularly given the opportunity to remedy a NEPA violation, there are very few decisions from courts reviewing these remedial efforts. Those courts that have evaluated remedial efforts have not conducted a de novo review. In fact, a review of the case law demonstrates that courts rarély deviate from the well-established standard of arbitrary and capricious review following a remand to the agency. For example, in this circuit, a non-NEPA agency decision that was challenged pursuant to the APÁ after a remand was reviewed under the arbitrary and capricious standard. Outside this circuit,- the two-step hard look and arbitrary and capricious standard was applied to an agency’s attempts to cure NEPA violations. However, in applying that two-step standard at this stage, a court must pay particular attention to two additional issues. First, a court must make a “searching and careful” inquiry into whether the agency’s explanations were made objectively and in good faith. The Supreme Court warned almost thirty years ago that courts should “critically review” agency explanations that come after a decision to proceed has been made because of the risk of “post-hoc rationalization.” Similarly, courts in other circuits have noted that it is appropriate to “critically review” an agency’s NEPA documentation in order to guard against post-hoc rationalizations. CEQ regulations prohibit an agency from preparing an EIS simply to justify decisions already made. Under these circumstances, an agency must show, at a minimum, that it made a good faith and objective review of the potential environmental impacts of its proposed action. Conversely, if the agency has postponed its project and objectively and in good faith reassessed the potential environmental impacts of its project, it is likely that the agency has cured its violation. Second, in making this assessment, a court may conduct a “plenary review” in order to procure further documentation which allows it to assess the agency’s decision and the rationale supporting that decision. To do so, a court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” In sum, a court must carefully examine each element of the NEPA documentation, including the alternatives analysis and proposed mitigation, first to determine whether the agency has satisfied the hard look standard, and, if so, whether the decision was arbitrary and capricious. A court may conduct this review by examining documents outside the agency’s record and must pay careful attention to the agency’s rationale. E. Remedy 1. Injunctive Relief “Injunctive relief ... has been used when appropriate for violations of NEPA.” However, injunctive relief “does not follow automatically upon a finding of statutory violations” in the NEPA context. “[A] court must [instead] balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Thus, “[a]lthough the procedural requirements of NEPA must be followed scrupulously and cost or delay will not alone justify noncompliance with the Act ... it remains within the sound discretion of a district court to decline an injunction, even where deviations from prescribed NEPA procedures have occurred.” Courts apply a four-part test when deciding whether to grant an injunction. The test requires: (1) irreparable injury, (2) inadequacy of legal remedies, (3) that the balance of effects weighs in favor of the movant, and (4) that the injunction is in the public interest. “[A] threat of irreparable injury must be proved, not assumed.” If the injury is sufficiently likely, the balance of harm will likely favor an injunction. However, a court must determine whether irreparable harm is “actual and imminent.” In deciding whether irreparable harm is imminent, a court must look only at the current stage of the project, and not the effects of the project as a whole, or the projected effects at a later stage of the project. Finally, injunctions issued under NEPA, like injunctions generally, must serve a remedial purpose. 2. Remand If a court makes an express finding that there is a “substantial possibility” a project may have a significant effect on the human environment, the court may order the preparation of an EIS. A party challenging the agency’s decision not to prepare an EIS need not show that the project “clearly” will have.a significant impact on the environment. As noted, an EIS or SEIS should be prepared when the question of whether there will be a significant impact is a close one. A court’s job is not to answer the question of whether the proposed action will have a significant impact on the environment, but merely to determine whether there is a “substantial possibility” that such an impact may occur. While a court’s “task is to ensure NEPA compliance with the environmental policies,” it may not infringe on an agency’s decision where it has expertise. “[T]he only role for the court is to insure that the agency has considered the environmental consequences.” When the court is unsure whether the project will significantly affect the quality of the environment, “the appropriate remedy is to remand the case to the agency to correct the deficiencies in the record and in its analysis.” A court may require the agency to reassess its NEPA analysis “in light of the proper standards.” Thus, an agency may be ordered to prepare new NEPA-compliant documentation “under circumstances that ensure an objective evaluation” free of the pressures that are present when an agency has already undertaken to conduct a- project. IV. DISCUSSION Plaintiffs now claim that while the newly-produced EA has to some extent addressed the impact of the HDP on the RI/FS, and provides a coordination plan, the Corps has nonetheless failed to take a hard look at the impact the HDP will have on the RI/FS. Specifically, plaintiffs assert that the Corps has neglected to examine, among other things: (1) the possible impacts on EPA’s ability to characterize the site’s risk through sampling,, including whether pre-dredging samples will remain relevant after the HDP has dispersed sediments and altered flow in the channels, (2) the alternatives that would mitigate those possible impacts, (3) “possible impacts on remedial options,” and (4) “possible impacts from berth-deepening as part of the HDP and ■ maintenance dredging.” Plaintiffs further contend that the Corps’ data is inadequate for its intended purpose and that the Corps’ methodology is flawed. Finally, plaintiffs argue that the coordination plan fails to address the nature, content, mechanisms, and monitoring provisions necessary for real coordination. The Corps and Intervenors oppose plaintiffs’ request for relief on three grounds. First, they argue that plaintiffs’ request is not ripe because of the ongoing review of the Draft EA and Draft Amendment. Second, the Corps asserts that it has now taken a hard look at the possible impacts of the HDP on the RI/FS and cured any violations, making plaintiffs’ claim moot. Third, the Corps and Inter-venors argue that injunctive relief is inappropriate as plaintiffs have not shown irreparable harm. A. Ripeness During the original round of briefing in the remedy phase, the Corps asked that judicial review of the Draft EA and Draft Amendment be withheld so that it could complete the Final EA and Amendment, issue a final decision document, receive the requisite water quality certificate from the New Jersey Department of Environmental Protection under the Clean Water Act, and solicit the next contract for the HDP. The Final EA was published in January 2006. As of February 16, 2006, the Corps had not received its water quality certificates. In addition, it promised not to award the next contract until the Court’s ruling. The harm plaintiffs will suffer here is procedural and such harm accrues when the NEPA document is issued, not when action is taken or contracts issued. Thus, the lack of certification and contracting here does not affect the ripeness of plaintiffs’ claim. The Final EA is the Corps’ last step in the NEPA process. Judicial review was withheld until this document was published and both sides were given a chance to file supplementary briefs. Any further delay in review would not serve the goals of NEPA. Accordingly, plaintiffs’ claim is ripe. B. The Merits of Plaintiffs’ NEPA Claim The first question is whether the Corps has cured its NEPA violations thereby mooting plaintiffs’ claim for injunctive relief. To make this determination, the Court must assess whether the Corps has now. taken a hard look at the potential impacts of the HDP on the RI/FS and “convincingly documented its decision.” Plaintiffs claim the Final EA still fails to do that and that the FONSI is arbitrary and capricious because it ignores likely significant impacts. Plaintiffs assert that the Corps relies on faulty data to determine the “effects of dredge-induced resuspension on the distribution of contaminated sediment within the Superfund site.” The Corps contends that it has taken a hard look and that it has “evaluated the public comments in a reasonable and prudent manner.” Because the Corps’ EA was prepared after the decision to proceed with the HDP was made, there is a substantial risk of post-hoc rationalization. The Corps originally asked that judicial review be suspended until it could solicit the next contract for the HDP, suggesting a desire to avoid any interference with its planned contracting as a result of NEPA compliance. Intervenors have also staked enormous investments on the expeditious completion of the HDP. Though the Corps has conducted several planning and coordination meetings with the EPA and promised to postpone issuing the next HDP contract until this Court’s order, two of its dredging projects have already begun. There is a fine line between legitimate responses to public comment and post-hoc rationalization designed to justify a decision that has already been made. During the remedy phase, the Corps voluntarily conducted a NEPA review and prepared an EA. Once the Draft EA and Draft Amendment were published and the Corps received public comment on those documents, the Corps assessed the comments and took several of them into account. The Corps also responded to complaints in plaintiffs’ original briefs when preparing the Final EA. However, most of the new matter in the Final EA consists of further explanations for decisions that were made long ago. In sum, a review of the Final EA reveals a continued noncompliance with NEPA and a failure to take a hard look at the impact of the HDP on the RI/FS. First, it failed to take a hard look at the effect of resuspension on contaminant concentrations in the surface level sediments for two reasons: (1) it failed to assess resuspension rates for different geomorphic areas and arbitrarily relied on the use of averaging over each contract area; and (2) it did not identify and consider hot spots. Second, the Corps failed to assess the cumulative impact of maintenance dredging on the RI/FS. Third, the EA lacked a proper alternatives analysis. Finally, the Corps’ mitigation measures do not provide substantial assurance that possible impacts will be minimized. 1. Assessment of the Potential Impacts of the HDP on the RI/FS a. Resuspension and the Amount of Contaminants Below the Surface Plaintiffs argue that the Final EA fails to address potential adverse impacts of the HDP on the RI/FS by making “unsubstantiated” or “illogical assertions concerning the patterns of sediment resuspension and dispersion.” In particular, plaintiffs note that the EA “assumes a uniform historical deposition rate in the flats over time and space” and that it “fails to consider the side slopes as a discrete area from the flats.” Plaintiffs also contend that the EA fails to adequately account for many potential hot spots and their effect on the resuspension analysis. The RI/FS is designed to study the distribution and concentration of dioxin and other contaminants in the sediment of the NBSA, evaluate the uptake of contaminants by aquatic biota, identify contaminant concentrations in the food web, and locate “hot spots” for short term remedial action. The objectives of sampling include estimating “the approximate depth of a critical ‘horizon’ in the sediment bed” and preliminarily identifying “ ‘hot spots’ through statistical analyses.” Several of the EA’s conclusions regarding resuspension and the amount of contaminants below the surface prejudge exactly the questions the RI/FS is meant to address by making assumptions about the average contaminant levels and the presence and/or size of hot spots. After a thorough review of the Final EA, I conclude that the Corps has still failed to take a hard look at the resuspension of sediment and contaminants caused by dredging. Specifically, the Corps has failed to take a hard look at (1) the possibility of different average resuspension rates in the various geomorphic areas as opposed to the average rates throughout a contract area, calculated without providing a separate analysis for channels, flats, and transitional areas, and (2) the existence and effect of hot spots. (1) Averaging and the Selection of Areas for Study The EA’s assessment of the potential impact of sediment resuspension on sampling is overly narrow. The RIWP will conduct sampling in the channels, sub-tidal flats, and in the transitional areas between the sub-tidal flats and navigational channels in order to “obtain data to characterize the horizontal and vertical distribution of COPCs in sediments.” The EA purports to analyze the horizontal and vertical distribution of COPCs in sediments as well by assessing whether the concentration of contaminants below the surface is greater than that on the surface throughout the NBSA. But, the EA does not distinguish between different geomorphic areas, such as tidal flats and transitional areas. Nor does the EA give a reason for failing to analyze resuspension rates in different geomorphie ar