Full opinion text
HERBERT F. MURRAY, District Judge. This lawsuit involves the planned construction of a diked dredged spoil disposal facility at the Hart and Miller Islands in Baltimore County, Maryland. On June 30, 1977, a number of environmental groups and concerned individuals filed suit against the United States Army Corps of Engineers, challenging the Corps’ decision to issue a permit to the State of Maryland for the Hart and Miller Islands disposal structure. This court granted the motions of the State of Maryland and the Steamship Trade Association of Baltimore, Inc. to intervene as defendants in this action on October 10, 1977. On May 31, 1978, all parties filed cross-motions for summary judgment. By memorandum and order dated October 24, 1978, 459 F.Supp. 279, this court granted plaintiffs’ motion for summary judgment on Count One of their complaint. The court held that the Corps of Engineers erroneously processed the State of Maryland’s permit application according to the provisions of section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, rather than section 9 of the Act, 33 U.S.C. § 401, which, unlike section 10, requires Congressional approval before a permit is issued. The Fourth Circuit Court of Appeals reversed this decision, however, 621 F.2d 1281 (1980), and the Supreme Court denied plaintiffs’ petition for a writ of certiorari,-U.S.-, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980). Consequently, the case is now before this court for the disposition of the still pending cross-motions for summary judgment on the remaining counts of plaintiffs’ complaint. On September 19, 1980, the parties submitted supplemental memoranda making current their previously filed summary judgment pleadings, and the cross-motions for summary judgment were the subject of oral argument before the court on October 10, 1980. I. BACKGROUND On February 23,1972, the State of Maryland, through its Department of General Services, filed an application with the Army Corps of Engineers for a permit pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., and section 404 of the Federal Water Pollution Control Act Amendments of 1972, as amended, 33 U.S.C. § 1344, to construct a diked dredged spoil disposal facility at the Hart and Miller Islands in the Chesapeake Bay. The Hart and Miller Islands site was selected by the State of Maryland on the basis of a study performed in 1969 by Green Associates and Trident Engineering Associates (A.R. 3, 122). Trident and Green, now known as Century Engineering, is a private contractor and was retained by the State of Maryland to perform this study as well as to design the diked disposal structure. The Hart and Miller Islands are located within the Chesapeake Bay approximately thirteen miles east of Baltimore, Maryland. The dike and containment area is to be constructed on the bayward (eastern) side of the Hart and Miller Islands about one mile from the mainland and will occupy an area of 1,100 acres or approximately two square miles. The stated purpose of the diked disposal area is to contain approximately fifty-two million cubic yards of dredged spoil to be removed from the Baltimore Harbor and its approach channels. When the dike is completed, its walls will stand eighteen feet above mean low water, somewhat higher than the current maximum elevations of the Hart and Miller Islands, which are 5.5 feet and 2.3 feet, respectively. However, only twelve percent of Hart Island and fifty-two percent of Miller Island will be covered by the disposal area. Basically, the disposal area will be rectangular in shape with the islands fitting into the northwestern, longer side of the area and the structure occupying principally an area to the southeast of the islands. Dredged spoil will be transported to the disposal area by pumping the material through hydraulic pipelines either from the dredging sites in the Baltimore Harbor or from barges which will carry the dredged spoil from the dredging site to the disposal area. The dredged material will be pumped into the diked containment area and the sand walls of the dike will allow the water to percolate out of the containment area, leaving only the dredged material inside. Once the area has been completely filled with dredged spoil, the entire structure will be at the height of eighteen feet above mean low water. As a means of protection against erosion on the bayward side of the structure, this side will be rip-rapped with stone, all other sides consisting of the sand-constructed walls of the dike. The Corps of Engineers held a public hearing on August 29, 1972 to consider the State of Maryland’s permit application (A.R. 57). On February 22,1973, the Corps completed its draft Environmental Impact Statement (A.R. 177). At least in part to address objections raised to the proposed Hart and Miller Islands project, the State of Maryland arranged to have a private consultant, Roy Mann Associates, Inc., evaluate certain aspects of the plans for the structure. The Mann Report was completed in July 1975, and is entitled, “Peer Review of the Evaluation of Hart and Miller Islands and Alternatives for Dredged Materials Disposal” (A.R. 634). A second public hearing was held on May 10, 1975 (A.R. 527), and in February 1976, the Corps of Engineers, as required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., issued its Final Environmental Impact Statement (E.I.S.) (A.R. 745). Upon completion of the Impact Statement, the District Engineer for the Baltimore District prepared a report on the application recommending issuance of the permit with the inclusion of certain conditions in the permit (A.R. 744). This recommendation was concurred in by the Corps’ North Atlantic Division on March 8, 1976 (A.R. 755), and the final report was sent to the Corps’ headquarters in Washington for final approval. Final approval was given in November 1976, and the State of Maryland was issued a permit for the diked disposal facility under 33 U.S.C. §§ 403 and 1344 (A.R. 815, 816, 817). II. PRIVATE RIGHT OF ACTION The court feels it necessary to address at the outset an issue to which two of the parties have made reference in their pleadings. On November 17, 1978, defendant State of Maryland filed a supplemental memorandum raising the issue of whether a private right of action may be maintained under the Rivers and Harbors Act. In the current posture of the case, however, this issue need not be decided. This is because only Count One of plaintiffs’ complaint, which has already been determined to be without merit, is founded solely upon the Rivers and Harbors Act; the remaining counts are based primarily upon the National Environmental Policy Act (NEPA). Summary judgment in favor of plaintiffs on Count One of their complaint had already been entered by this court at the time defendant State of Maryland’s supplemental memorandum was filed. However, there were pending before this court at that time the motions of three defendants seeking a reconsideration of the court’s summary judgment ruling. Presumably, it was in conjunction with these motions that defendant State of Maryland submitted its supplemental memorandum on the private cause of action issue; the matter is not raised in defendant State of Maryland’s supplemental memorandum filed on September 19, 1980, submitted in support of defendant State of Maryland’s motion for summary judgment on those counts of plaintiffs’ complaint which are still pending. The question of whether a private cause of action should be recognized in this case is nonetheless before the court at this time, because it is raised in the supplemental memorandum of defendant Steamship Trade Association of Baltimore, Inc., filed on September 19, 1980, in support of its motion for summary judgment. The Steamship Trade Association’s memorandum discusses whether there is a private cause of action under the Rivers and Harbors Act, and, as stated above, that is no longer an issue in this case. Defendant Steamship Trade Association’s memorandum, however, also cites the case of Mountainbrook Homeowners Association, Inc. v. Adams, 492 F.Supp. 521 (W.D.N.C.1979), aff’d, 620 F.2d 294 (4th Cir. 1980), opinion published at 10 ELR 20352 (May 16, 1980), and the Mountainbrook opinion discusses whether or not there is a private cause of action available under NEPA. This issue, of course, remains pertinent to the case in its current posture. Plaintiffs in Mountainbrook included individuals as well as an association of homeowners. These plaintiffs brought an action under NEPA, alleging that defendants had failed to comply with provisions of an environmental impact statement regarding the construction of a highway near their homes. The district court dismissed the plaintiffs’ case, holding that no private cause of action is available under NEPA. The Mountainbrook decision, however, is readily distinguishable from the case at bar. In the case before this court, plaintiffs are seeking to enjoin the construction of a project, not to enforce compliance with the environmental impact statement prepared in conjunction with it. The district court in Mountainbrook, at 529, relied on this distinction in reaching its holding: Many federal courts have permitted the maintenance of actions brought by private parties and have fashioned and enforced remedies. It is true that most of these actions have been brought to compel the federal agency involved to comply with “NEPA” by preparing and filing an adequate environmental impact statement, and the courts have enjoined the project until such statement was prepared and filed. This Court has found no case wherein a private party has been permitted to maintain an action for the failure to comply with the provisions of an Environmental Impact Statement. The Plaintiffs have cited no such case supporting their contentions as advanced here. It appears that these Plaintiffs have no cause of action, either express or implied, under “NEPA” to enforce the provisions of the statement and that the complaint must be dismissed for failure to state a cause of action upon which relief can be granted. It is true that at some points in its opinion, the district court in Mountainbrook uses broad language which might be read to imply that there can be no private action whatsoever under NEPA. In affirming the district court, however, the Fourth Circuit did not employ such language; to the contrary, the Court of Appeals held that there was no private cause of action stated “[i]n the circumstances of this case,” and cited City of Blue Ash v. McLucas, 596 F.2d 709, 712 (6th Cir. 1979), like Mountainbrook, a case in which plaintiffs sought to enforce rather than to challenge the provisions of an Impact Statement. In Mountainbrook, the district court recognized that many federal courts have entertained private actions brought under NEPA which challenge the adequacy of environmental impact statements, and distinguished Mountainbrook from those cases. The Fourth Circuit, in affirming, apparently sought to limit the Mountainbrook holding strictly to its facts. The Supreme Court entertained private actions alleging, inter alia, violations of NEPA in two recent eases without raising the private right of action question; Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). For these reasons, this court believes that plaintiffs have brought a proper claim under NEPA, and that the contention of defendants State of Maryland and Steamship Trade Association, implied in their supplemental memoranda, that no private cause of action exists under NEPA is not a correct statement of the law as it applies to the case at bar. III. COMPLIANCE WITH LOCAL LAW AS MANDATED BY CORPS OF ENGINEERS REGULATIONS In Count Six of their complaint, plaintiffs contend that defendants have failed to comply with 33 C.F.R. § 202.120(f)(3) (1978), renumbered, 33 C.F.R. § 320.4(j)(6) (1979), a United States Army Corps of Engineers regulation which states: Permits will not be issued where certification or authorization of the proposed work is required by Federal, State and/or local law and that certification or authorization has been denied. Plaintiffs allege two instances of failure to secure authorization as required by 33 C.F.R. § 320.4(j)(6). First, plaintiffs assert that no permit has been obtained from the State of Maryland’s Secretary of Health and Mental Hygiene pursuant to Article 43, sections 394 and 394A of the Annotated Code of Maryland, 1957 (1980 Replacement Volume). Second, plaintiffs point out that the permittee, State of Maryland, has not obtained the zoning exception from Baltimore County which is required before a sanitary landfill can be developed in an area zoned for agricultural use, which is the zoning of the area within which the Hart and Miller Islands are located. Sections 394 and 394A of Article 43 of the Maryland Code require that a permit be secured from the State of Maryland’s Secretary of Health and Mental Hygiene before the operation of a landfill refuse disposal system may be commenced. Section 394A further directs that the Department of Health and Mental Hygiene shall not issue a permit for a landfill facility unless all county zoning and land use requirements have been met, and an affirmative statement that the board of county commissioners or the county council does not oppose the issuance of the permit has been obtained. Plaintiffs allege both that no affirmative statement of non-opposition has been obtained and that no Maryland Department of Health and Mental Hygiene permit has been issued. Countering plaintiffs’ charges of non-compliance, defendants assert that sections 394 and 394A of Article 43 do not apply to the Hart and Miller Islands project because the proposed diked disposal facility is not a “landfill refuse disposal system.” The court finds the defendants’ support for this position to be persuasive, and holds that sections 394 and 394A do not apply to the case at bar. The term “landfill refuse disposal system” is not defined in Article 43 of the Maryland Code. Defendant State of Maryland points to other definitions found in the Code and related regulations, however, which do offer some general insight as to the meaning of this term. Maryland Code Article 43, § 387C(a)(16) defines “solid waste acceptance facility” as any sanitary landfill, incinerator, transfer station or any other type of plant, the primary purpose of which is for the disposal, treatment or processing of solid wastes. At the time the permit involved in this lawsuit was issued, § 387C(a)(14) defined “solid wastes” to mean litter and all refuse materials, other than gaseous and liquid wastes, from all public and private establishments and residences, including shopping centers. “Refuse disposal” is defined by COMAR § 10.03.30.07 to include the disposal of all solid waste, except sewage, including garbage, rubbish and solid market and industrial wastes. Plaintiffs argue from this series of definitions that a containment facility for industrial wastes satisfies the criteria which define a landfill refuse disposal system. They then direct the court’s attention to pages nineteen through twenty-five of the Environmental Impact Statement prepared by the Corps of Engineers regarding the Hart and Miller Islands project, where the polluted nature of the waters and sediments of the Baltimore Harbor is described as including a distribution of several metals, reflecting inputs from the industrial complex which the Baltimore Harbor supports. Thus, conclude plaintiffs, sediments containing industrial wastes will be deposited at the proposed diked disposal facility, and that facility will therefore be a landfill refuse disposal system within the purview of § 394A of Article 43. Plaintiffs further point out that a portion of the Hart and Miller Islands project will cover parts of the islands themselves, and thus some of the industrial wastes will be deposited on land. This court finds plaintiffs’ conclusion to be unfounded. There is nothing in the definitions set forth above which indicates that every facility for the disposal of industrial wastes is, by virtue of that fact, deemed to be a landfill refuse disposal system. Furthermore, there is strong evidence that the dike envisioned for the Hart and Miller Islands is not a project governed by Article 43, §§ 394, 394A. Although the fact that industrial wastes are to be deposited in a containment facility may be probative on the question of whether or not that facility is a landfill refuse disposal system, this court believes that the nature of the facility itself is a characteristic more significant in this regard than what materials are to be deposited there. The April 1977 issue of the periodical, Solid Wastes Management, offers a compilation of the definitions of sanitary landfill which have been enacted as statutes or regulations by various states, and an excerpt is attached to defendant State of Maryland’s memorandum in support of its motion for summary judgment. Although Maryland is not included in the compilation (it has not enacted any definition of this term), most states are, and their definitions are generally quite similar. North Carolina’s description is representative: Sanitary Landfill: means a method of disposing of solid waste on land in a sanitary manner without creating nuisances or hazards to public health or safety by utilizing the principles of engineering to confine the solid waste to the smallest practical volume, and to cover it with a layer of compacted earth at the conclusion of each day’s operation or at such more frequent intervals as may be necessary. The Environmental Impact Statement prepared by the Army Corps of Engineers presents a description of the proposed Hart and Miller Islands diked disposal structure: The State of Maryland proposes to construct a diked disposal area adjacent to the islands to contain bottom sediments dredged from Baltimore Harbor and its approach channels ... The dredged material and water are pumped into the enclosure where the sediments settle and the water slowly percolates through the bottom of the dike until a water level equilibrium is reached . .. The dredging will be predominantly sand. (E.I.S. 1). A comparison of North Carolina’s definition of a sanitary landfill and the E.I.S. characterization of the Hart and Miller Islands project illustrates the significant differences between them. There will be no compacting of wastes at the Hart and Miller Islands facility, and daily deposits will not be covered with layers of soil; similarly, the percolation feature which is integral to the design of the diked facility is not a typical feature of sanitary landfills. There is additional support for the position that the Hart and Miller Islands project is not one governed by sections 394 and 394A. The affidavit of Walter A. Miles, Chief of the Division of Solid Waste for the Maryland Department of Health and Mental Hygiene, has been submitted as an exhibit in support of defendant State of Maryland’s motion for summary judgment. In his affidavit, Mr. Miles states that he is responsible for the administration of Article 43, § 394 of the Maryland Code, that he has reviewed Count Six of plaintiffs’ complaint, and that the diked disposal area to be located adjacent to the Hart and Miller Islands is not a landfill subject to § 394A. Mr. Miles continues as follows: Diked disposal areas, which are utilized for the containment of dredged spoil located on dry land, marsh land, or in the water, have never been subjected to the requirements of Section 394A. In addition, a diked disposal area has never been construed to be a solid waste acceptance facility pursuant to Article 43, Section 387C(a)(16). Perhaps the most persuasive evidence of the Maryland legislature’s intent not to include under Article 43, § 394A diked disposal areas like the one proposed for the Hart and Miller Islands is the amendments made to that provision of the Maryland Code in 1979. Before these amendments, § 394A set forth the requirements which had to be satisfied prior to the issuance of a permit for a “landfill refuse disposal system;” in 1979, the phrase “or sludge composting facility” was added to this section. Consequently, the court infers that the Maryland legislature believes that there is a distinction between landfill refuse disposal systems and sludge composting facilities, and that prior to the 1979 amendments, § 394A applied only to the former. Webster’s Third New International Dictionary of the English Language (Unabridged, 1971) defines a landfill as a site for the disposal of trash and garbage by burial under layers of earth in low ground; sludge is defined to mean a muddy or slushy mass, deposit or sediment. As noted above, the Environmental Impact Statement for the Hart and Miller Islands project states that the proposed dike will contain “bottom sediments dredged from Baltimore Harbor and its approach channels” (E.I.S. 1). This dredged material neatly fits Webster’s definition of sludge, and the court believes that the Hart and Miller Islands diked disposal area is more akin to what the Maryland legislature meant by the term “sludge composting facility” than it is to a “landfill refuse disposal system.” For the reasons discussed above, this court holds that sections 394 and 394A of Article 43 of the Maryland Code do not apply to the Hart and Miller Islands diked disposal project, and that the failure to obtain a permit from the Maryland Department of Health and Mental Hygiene and an affirmative statement of non-opposition from Baltimore County officials does not constitute a violation of Army Corps of Engineers regulation 33 C.F.R. § 320.4(j)(6) (1979). Plaintiffs’ second allegation pertaining to the Corps regulation’s mandate of local law compliance is directed to the failure of the State of Maryland, as permittee, to obtain a zoning exception from Baltimore County. Plaintiffs contend in this regard that the area of the proposed project site is currently zoned for agricultural use, and that before a diked disposal facility can be legally placed there, Baltimore County officials must grant a special zoning exception. In response, defendant State of Maryland relies on the holding in Mayor and City Council of Baltimore v. State of Maryland, 281 Md. 217, 378 A.2d 1326 (1977). That action was brought by the State of Maryland, which sought a declaration that city zoning, building, fire and other codes and ordinances could not be applied against the State’s use of property for a correctional institution in Baltimore City. The Court of Appeals of Maryland affirmed the lower court’s decision to grant the declaratory relief prayed, reasoning that Article 66B, § 2.01 et seq., which grants Baltimore City its zoning authority, neither specifically provides nor clearly implies that the State is intended to be subject to its provisions. In this respect, it is a basic and long-standing principle of statutory construction that the State is not deemed to be bound by an enactment of the General Assembly unless the enactment specifically names the State or manifests a clear and indisputable intention that the State is to be bound. .. Thus, since the General Assembly has neither named the State nor manifested an intention that the State be bound in the provisions of the Zoning Enabling Act, Baltimore City has no authority to subject the State’s use of the Continental Can property to its zoning ordinance. Id., 223-224, 378 A.2d 1326. The holding in Mayor and City Council of Baltimore v. State of Maryland, supra, was founded upon the language of Article 66B, § 2.01 of the Maryland Code, which grants to Baltimore City the power to enact zoning regulations. The zoning regulations which plaintiffs allege need to be complied with in this case, however, are those of Baltimore County. The chartered counties of Maryland are authorized to enact zoning laws by Article 25A, § 5(x) of the Maryland Code. This section is identical to Article 66B, § 2.01 in all respects pertinent to the holding in Mayor and City Council of Baltimore; the General Assembly has neither named the State nor manifested any intention that the State be bound in the wording of Article 25A, § 5(x) . Furthermore, the Mayor and City Council of Baltimore result was held to apply to county zoning regulations in Harbor Island Marina, Inc. v. Board of County Commissioners of Calvert County, 286 Md. 303, 315, 407 A.2d 738 (1979). In view of the decisions of the Court of Appeals of Maryland noted above, this court holds that the State of Maryland’s Hart and Miller Islands project is not subject to the zoning ordinances of Baltimore County. In addition, as was previously discussed, this court has determined that Article 43, §§ 394 and 394A of the Maryland Code do not govern the diked disposal site which is the subject of this lawsuit. For these reasons, plaintiffs’ argument that the requirements set forth at 33 C.F.R. § 320.-4(j)(6) (1979) have not been satisfied must fail, and defendants’ motions for summary judgment as to Count Six of plaintiffs’ complaint will, therefore, be granted. IV. THE CORPS’ DECISION-MAKING PROCESS AND THE NATIONAL ENVIRONMENTAL POLICY ACT The remaining counts of plaintiffs’ complaint raise various challenges to the decision-making process which culminated in the approval of the State of Maryland’s permit application by the Army Corps of Engineers. These challenges rely primarily upon the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and their thrust is to a large extent directed at alleged failures of the Final Environmental Impact Statement prepared by the Corps to satisfy certain requirements of that Act, particularly 42 U.S.C. § 4332(2)(C) and (E): The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act [42 USCS §§ 4321 et seq.], and (2) all agencies of the Federal Government shall— ****** (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official 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, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. ****** (E) 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 Office of the District Engineer for the Baltimore District, Army Corps of Engineers, completed its Final Environmental Impact Statement on Maryland’s permit application to build a diked disposal area at the Hart and Miller Islands in February of 1976. Count Two of plaintiffs’ complaint alleges that the E.I.S. is inadequate because it does not consider several enumerated possible construction failures. In Count Three, plaintiffs allege that the mandate of 42 U.S.C. § 4332(2)(E) that “appropriate alternatives” be studied, developed and described, has not been fulfilled. Count Four asserts a failure to consider the cumulative effects of the proposed project as required by Corps of Engineers regulations; see 33 C.F.R. § 320.4(2)(iv) (1979). Plaintiffs allege in Count Five that the general environmental effects of the proposed Hart and Miller Islands dike are not adequately considered in the Impact Statement, in Count Seven contend that the assessment of costs made in the E.I.S. is inaccurate and invalid, and in Count Eight assert that substantial questions as to the feasibility and advisability of the project are ignored or minimized by the E.I.S. In Count Nine, plaintiffs claim that the Corps of Engineers acted in bad faith by withholding information from the Department of the Interior during the permit review process. Count Ten asserts that the Impact Statement devotes only minimal attention to the concerns and opinions expressed by residents living in the area of the proposed dike, and that to the extent that the Corps of Engineers has mentioned these residents in the E.I.S., it has done so in a bad faith attempt to malign their character. Finally, Count Eleven is based upon the Administrative Procedure Act, and asserts that the Corps’ decision to issue the Hart and Miller Islands permit was “arbitrary, capricious and an abuse of discretion.” In light of recent decisions of the Supreme Court, it is clear that in cases brought pursuant to NEPA, this court’s role is limited and its scope of review is narrow: In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 [98 S.Ct. 1197, 1219, 55 L.Ed.2d 460] (1978), we stated that NEPA, while establishing “significant substantive goals for the Nation,” imposes upon agencies duties that are “essentially procedural.” As we stressed in that case, NEPA was designed “to insure a fully informed and well-considered decision,” but not necessarily “a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decision-making unit of the agency.” Ibid. Vermont Yankee cuts sharply against the Court of Appeals’ conclusion that an agency, in selecting a course of action, must elevate environmental concerns over other appropriate considerations. On the contrary, once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot “ ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.”’ Kleppe v. Sierra Club, 427 U.S. 390, 410, n.21 [96 S.Ct. 2718, 2730 n.21, 49 L.Ed.2d 576] (1976). See also FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326 [96 S.Ct. 579, 46 L.Ed.2d 533] (1976). Strycker’s Bay Neighborhood Council, Inc. v. Karlen, supra, 444 U.S. at 227-228, 100 S.Ct. at 499-500 (footnote omitted). See also National Center for Preservation Law v. Landrieu, 496 F.Supp. 716, 724-725 (D.S.C.1980); 5 U.S.C. § 706(2)(A). This court will now address the specific allegations of plaintiffs’ complaint, bearing in mind the instruction of Strycker’s Bay Neighborhood Council as to its function on review. A. Possible Construction Failures Plaintiffs allege in Count Two of their complaint that the Corps of Engineers failed to consider adequately questions raised about the structural integrity of the proposed dike. Their claim in this regard has two prongs. First, plaintiffs rely on section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, which they contend, and defendants concede, imposes a duty on the Corps to examine rigorously the plans and specifications for structures to be constructed in the navigable waters of the United States. Second, plaintiffs argue that the absence of any discussion of the environmental effects which would ensue from several possible construction failures renders the E.I.S. in this case insufficient under the requirements of NEPA. Plaintiffs cite as possible construction failures the following: failure to complete once started, failure or inability to close the dike, failure to hold spoil, failure to retain pollutants, sinking of portions of the dike, sliding of portions, and any other breaching of the dike. Plaintiffs point to evidence which does, in fact, raise serious questions about the structural integrity of the Hart and Miller Islands dike as designed. The Peer Review Evaluation issued by Roy Mann Associates summarizes its findings regarding dike safety at 103-104 (A.R. 634): 1. From the specified design condition, it is estimated that the structure is designed for storms of 15-year return periods. The probability of encountering such a storm during the vulnerable period of the dike structure is quite high. 2. The crest height of the structure is not sufficient to prevent wave overtopping. The condition is more severe at the Hart-Miller Site and the Black Marsh Site than the others. 3. The riprap protection is marginal and is nonconservatice [sic] for offshore structures. 4. The toe protection is marginal to inadequate in view of the poor foundation condition. 5. The back slope of IV5H is judged adequate as long as the friction angle of the material remains larger or equal to 27° as claimed by the designer. There is no provision, however, for the inner bank to resist erosion due to heavy rain. 6. The evidence is insufficient to demonstrate the IV3H front slope to be adequate. This slope appeared to be non-conservative for offshore structures with hydraulic filling. Further analysis to ensure its adequacy is warranted. 7. There is insufficient information to indicate that the foundation problems have been thoroughly investigated. From the specifications and drawings provided by Century Engineering, the information appears to be inadequate to ensure proper preparation of foundation. 8. There is no convincing evidence that the local material is sufficiently adequate both in quality and quantity for dike construction. More documentation is required to establish these facts. In addition, plaintiffs emphasize the importance of the affidavits of Dr. Hsiang Wang and Dr. Robert Kondner, submitted as exhibits to their motion for summary judgment. Dr. Wang co-authored the engineering portion of the Mann report, and in his affidavit, dated May 23, 1978, states that he continues to adhere to the conclusions of the report even after having examined all documents in the administrative record regarding the engineering aspects of the project dated after July 28, 1975, the date of the Mann study. Dr. Kondner’s affidavit sets forth extensive evidence of Dr. Kondner’s expertise as a civil engineer, and in his affidavit, dated May 15,1978, Dr. Kondner expresses his opinion that the proposed design of the dike is unsatisfactory and his expectation “that dike sections will fail with total loss of structural integrity.” The teaching of Strycker’s Bay Neighborhood Council, Inc. v. Karlen, supra, is that “once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences,” 444 U.S. at 227, 100 S.Ct. at 500. In light of this standard, defendants’ counter to the plaintiffs’ charge that the structural integrity problems raised by the Mann Report received insufficient attention is persuasive; defendants point to documents in the administrative record which demonstrate that the Corps considered the stability of the proposed dike before deciding to approve the State of Maryland’s permit application. The issues of structural integrity raised by the Mann Report were noted above. First, in paragraphs one and two of its summary, the Mann Study suggests the possibility that the height of the proposed dike will prove insufficient to prevent wave overtopping during storms anticipated to occur at fifteen year intervals. Memoranda exchanged by the various departments of the Corps indicate that this concern was addressed and investigated. A memorandum dated August 15, 1975 (A.R. 659) from the Chief of the Corps’ Engineering Division to the Chief of the Operations Division states: 1. This Division does not agree with the Roy Mann Associates’ conclusion that an 18-foot-high dike at Hart-Miller Islands will be overtopped at 15-year intervals. In fact, this Division cannot conceive of a set of reasonably possible circumstances that would result in water (including wave runup on the proposed 1 on 3 slope) reaching higher than 11 feet above mean low water. 2. The design wave height suggested by Mann is impossible. Waves of 12 to 14 feet, unheard of in Chesapeake Bay, could not propagate in the shallow waters on the peripheral shoals guarding Hart and Miller Islands. A wave height on the order of 6 feet would be more reasonable and even such a wave would be an extremely rare event. Records of wave gages at Randle Cliffs near Chesapeake Beach, Maryland, and at the Chesapeake Bridge Tunnel substantiate this statement. * * # * * * 4. In summary, the Engineering Division does not believe that an 18-foot-high dike at Hart-Miller Islands will ever be overtopped let alone at return intervals of 15 years. Furthermore, the overtopping, if it should occur, would not be a catastrophic event. We have not made a detailed cost comparison of Hart-Miller and alternative sites. We believe that the Century estimate, subject to some refinements in design, is not unreasonable. Although conclusory statements like these might be deemed inadequate to demonstrate that the Corps actually considered the overtopping issue, subsequent documentation supports the Corps’ assertion that they did in fact investigate this problem. Corps of Engineers memoranda dated September 3,1975 (A.R. 681) and September 17, 1975 (A.R. 689) set forth the Corps’ conclusion and the data relied on in reaching that conclusion; the Engineering Division of the Corps, after examining tide records at Fort McHenry for the period 1903-1973, determined that the diked disposal area would be overtopped only by wave heights likely to occur once every 2000 years. In paragraphs four, seven and eight of its summary, the Mann Report challenges the adequacy of foundation specifications and the suitability of sand located near the proposed site as material for the construction of the dike. A review of the administrative record supports defendants’ contention that the Corps considered these problems before issuing its permit to the State of Maryland. In a memorandum dated April 19, 1973 (A.R. 242), the Corps set forth certain test data regarding foundation materials relied on by the designers of the dike, and concluded that “dike stability is still believed to be marginal.” A later memorandum, dated February 20, 1974 (A.R. 341), indicates that after reviewing revised data, the Corps determined dike stability to be acceptable. Subsequent entries in the administrative record demonstrate that foundation stability continued to concern the Corps (A.R. 610, 646). Indeed, the record reflects that on October 22,1975, seven officers of the Corps of Engineers met with five members of Century Engineering and a representative of the Maryland Department of General Services, and that several matters regarding the structural integrity of the proposed dike, including construction methodology, building materials and foundation stability, were addressed (A.R. 712, 716). Furthermore, a subsequent meeting was held on November 26,1975, at which data regarding foundation stability was again reviewed (A.R. 729). Based on the evidence presented, this court concludes that the Army Corps of Engineers considered the problems raised by the Mann Report regarding construction materials and foundation stability. The Peer Review study relied on by plaintiffs, in paragraph six of its summary, supra, also questioned the stability of the one-to-three front slope called for by the design specifications for the dike, as did Dr. Wang in a letter to the Secretary of the Maryland Department of General Services (A.R. 696). The related issue of riprap protection was also raised by the Mann Report, in paragraph three of its summary. These issues, too, were addressed by the Corps during its deliberation on the Hart and Miller Islands project. Memoranda dated January 22 and February 6, 1973 (A.R. 119, 130) indicate that the Corps was originally skeptical that a one-to-three slope could be achieved with safety. At the October 22 and November 26, 1975 meetings, however, the dike slope and riprap issues were discussed (A.R. 712, 716, 729). The memorandum regarding the November 26, 1975 meeting (A.R. 729) states as follows: After some discussion, it was agreed by all present that the IV on 3H slopes as shown, would be satisfactory from deep and shallow failure considerations, provided the filter cloth, below water level, was replaced by 2.5 ft. of pea gravel for long term seepage control. Finally, the E.I.S. sets forth the Corps’ conclusions regarding the structural integrity of the Hart and Miller diked disposal area at 46: Comprehensive design analysis and development of overtopping frequency estimates were performed by the Baltimore District for the proposed dike design in order to assure the structural integrity and safety of the retention structure. Results of these analyses are as follows: a. The dike design elevation of 18 feet above mean low water assures that the disposal area would have virtually no chance of being overtopped. This conclusion is based on a conservatively computed overtopping frequency of once every 2,0000 [sic] years. This frequency was arrived at by first establishing the 2,000 year wind speed frequency for this area for winds from a southerly direction, from Thom’s Fastest Mile (Thom, 1968). The resulting wind speed was used to derive an expected wave height which was then superimposed on the 2,000 year hurricane tide, as projected from 71 years of tide records from the gage at Fort McHenry. Wave runup computations, and water depth and fetch for the area were incorporated with this data to obtain the expected overtopping frequency. b. Structural integrity of the proposed dike design is satisfactory subject to inclusion of the following modifications: 1. Filter cloth to be used on the Chesapeake Bay side of the dike to below water level, will only be used above the water level. That to be used below the water level will be replaced with 2V2" thickness of pea gravel. 2. A bay-side toe consisting of several feet of pea gravel and riprap and about ten feet wide, will be provided between stations 110 to 120 and 220 to 230 (see Figure 3, page 4). 3. Along the remainder of the dike alignment, approximately stations 80 to 110,120 to 220, and 230 to 260, an impervious blanket will be constructed along the inside toe of the dike and will extend up to 200 feet from the toe. This would be constructed during disposal of dredged material within the diked area. The thickness of the blanket would be equal to or greater than the head of water above it, and would consist of materials finer than the No. 200 sieve. 4. Casagrande type piezometers will be placed between Stations 110 to 230 to measure the phreatic surface and seepage pressures during operation. These modifications will be incorporated into the final dike design in the event that approval is given to this pending permit application. Plaintiffs point to several documents in the administrative record, some of which have been adverted to above, which reflect the Corps’ skepticism about certain aspects of the plans and specifications for the proposed dike. Presumably, plaintiffs by this evidence seek to persuade the court that the questions of structural integrity which they raise are serious ones. This court does not doubt the significance of the criticisms levelled against the Hart and Miller Islands project by the Mann Report and by Dr. Wang, and it readily agrees with plaintiffs that there are qualified experts who believe that the proposed dike is structurally unsound. The very evidence relied upon by plaintiffs, however, demonstrates the Corps’ awareness of these issues, and the documentation from the administrative record cited above satisfies this court that the Corps considered the issues as well. Consideration of the issues is all that this court can properly require of the Corps, Strycker’s Bay Neighborhood Council, Inc. v. Karlen, supra; the court cannot substitute its judgment for that of the Corps of Engineers nor determine who among competing experts presents the most reliable information or reaches the most correct conclusions, Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2731 n. 21, 49 L.Ed.2d 576 (1976); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1383 (2d Cir.), cert, denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). Plaintiffs enumerate further potential construction failures allegedly not addressed by the Corps: failure to complete once started, failure or inability to close the dike, failure to hold spoil, and failure to retain pollutants. However, plaintiffs present no evidence that any of these failures is likely to occur. In Warm Springs Dam Task Force v. Gribble, supra, 621 F.2d at 1026-1027, discussion of the consequences of a total failure of the dam in question was held to be unnecessary: [A]n impact statement need not discuss remote and highly speculative consequences. Any substantial risk that the dam could fail would be intolerable. . . Everyone recognizes the catastrophic results of failure of a dam; to detail the results would serve no useful purpose [citation omitted]. Similarly, the assumption in this case is that construction will be completed and that the dike will serve its intended function of containing dredged spoil. In the absence of evidence that a contrary result is likely to ensue, plaintiffs’ suggested failures must be deemed purely speculative, and the E.I.S. cannot be faulted for failure to discuss them. For these reasons, the court concludes that the Army Corps of Engineers considered the questions raised by plaintiffs regarding the structural integrity of the diked disposal area as designed, and thereby fulfilled the mandate of the Rivers and Harbors Act that it examine the plans and specifications for structures to be built in the navigable waters of the United States, as well as the requirement of NEPA that the environmental impact of proposed projects be taken into account. Defendants’ motions for summary judgment as to Count Two of plaintiffs’ complaint will, therefore, be granted. B. Alternatives Plaintiffs contend in Count Three of their complaint that the Corps’ consideration of alternatives to the Hart and Miller Islands diked disposal area, as required by NEPA, 42 U.S.C. § 4332(2)(E), was so cursory as to be arbitrary, capricious and an abuse of discretion. Plaintiffs do not argue that an insufficient range of alternatives was considered, but only that those alternatives which do receive attention in the E.I.S. have been inadequately examined. In this regard, Count Seven of plaintiffs’ complaint relates to Count Three, and plaintiffs address both counts simultaneously in their motion for summary judgment. Count Seven of plaintiffs’ complaint asserts that the relative costs of alternative sites were an important factor in selecting the Hart and Miller Islands location, that the costs of the Hart and Miller Islands dike have not been accurately assessed, and that all comparisons made of the Hart and Miller Islands site to alternative locations are consequently flawed. Regulations of the Council on Environmental Quality deem the comparison of alternatives to a proposed action to be the “heart of the environmental impact statement,” 40 C.F.R. § 1502.14 (1980), and courts have expressed a similar view; e. g., Swinomish Tribal Community v. Federal Energy Regulatory Commission, supra, 627 F.2d at 512 (D.C.Cir.1980): NEPA’s requirement that the agency’s “detailed statement” address alternatives to a proposed action “has been aptly characterized as ‘the linchpin of the entire impact statement.’ ” Alaska v. Andrus, 580 F.2d 465, 474 (D.C.Cir.1978), vacated in part sub nom. Western Oil & Gas Assn. v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). The requirement that alternatives be studied, developed and described, however, is subject to a “rule of reason;” In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, supra, 435 U.S. at 551, 98 S.Ct. at 1215, the Supreme Court stated as follows: To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized: “There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of ‘alternatives’ put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies — making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed.” Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 15-15, 458 F.2d 827, 837-838 (1972). See also Life of the Land v. Brinegar, 485 F.2d 460 (CA9 1973), cert, denied, 416 U.S. 961 [94 S.Ct. 1979, 40 L.Ed.2d 312] (1974). Common sense also teaches us that the “detailed statement of alternatives” cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved. Plaintiffs in this case are concerned not with the range of alternatives explored in the E.I.S., but with the level of scrutiny applied to those alternatives. The “rule of reason,” however, “governs both which alternatives the agency must discuss and the extent to which it must discuss them,” State of Alaska v. Andrus, 580 F.2d 465, 475 (D.C.Cir.1978) (emphasis in original); vacated in part sub nom. Western Oil and Gas Association v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). See also North Slope Borough v. Andrus, supra; Lange v. Brinegar, supra, 625 F.2d at 818; Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398, 400 (4th Cir. 1977); Fayetteville Area Chamber of Commerce v. Volpe, supra, 515 F.2d at 1027-1028; National Center for Preservation Law v. Landrieu, supra, 496 F.Supp. at 733-734. The Final Environmental Impact Statement discusses several alternatives to the Hart and Miller Islands diked disposal facility, including cessation of dredging in the Upper Chesapeake Bay, open water disposal, on-land disposal, use of dredged material to manufacture bricks or reclaim strip mines, as well as diked disposal structures situated at other locations (E.I.S. 52-62a). Furthermore, in Section Eight of the Impact Statement, entitled “Coordination with Others,” the Corps responds to suggestions made by the Hart and Miller Islands Area Environmental Group that sites other than the Hart and Miller Islands should receive further consideration. Finally, Volume III of the Trident-Green Report, in which seventy potential diked disposal facility sites were evaluated, is reproduced as Appendix C of the Impact Statement. This study was performed for the State of Maryland by Green Associates and Trident Engineering Associates, now known as Century Engineering, the designers of the Hart and Miller Islands project. Plaintiffs launch several specific criticisms against the discussion of alternatives set forth in the E.I.S. First, plaintiffs argue that the E.I.S. approaches the project “as though the only alternative is no dredging whatsoever ... the writer [of the E.I.S.] takes the position of an advocate as though justifying an already decided position.” Plaintiffs offer no evidence to support this characterization. Furthermore, as noted above, several alternative disposal methods are considered in the Impact Statement, and the relative benefits and disadvantages of each are discussed. Having examined pages 52 through 62a of the E.I.S., the court concludes that plaintiffs’ allegations of post hoc rationalization and superficiality of examination of alternatives are without merit. Plaintiffs next contend that the incorporation of the Trident-Green study as Appendix C of the Environmental Impact Statement is a procedurally improper delegation of authority under NEPA, citing Essex County Preservation Association v. Campbell, 399 F.Supp. 208, 214 (D.C.Mass. 1975). Plaintiffs in the Essex County case sought an injunction, alleging inter alia that the Environmental Impact Statement involved there was prepared by the private consulting firm which was also the design engineer for the project in question. Although the district court denied plaintiffs’ request for injunctive relief, it did find that the delegation of responsibility for preparing an environmental impact statement to a party with a financial stake in the approval of the project to be examined was improper. On appeal, however, while the First Circuit affirmed the district court’s decision to deny injunctive relief, it also took issue with the district court’s finding of impropriety, 536 F.2d 956 (1st Cir. 1976). The Court of Appeals held that the participation of the design engineers in preparing an impact statement does not necessarily fatally undermine the validity of the statement, and cited a number of cases in which private consulting firms involved in the construction of a project were permitted to assist in drafting the impact statement on that project. In the case at bar, the Corps of Engineers has itself prepared an evaluation of alternatives to the Hart and Miller Islands dike (E.I.S. 52-62a). Furthermore, in light of the First Circuit’s decision in Essex County Preservation Association, supra, this court finds nothing improper about the inclusion of the Trident-Green Report in the E.I.S. as a supplement to the Corps’ own analysis of alternatives. Plaintiffs find further fault with the Corps’ consideration of alternatives because of the summary rejection of potential sites able to hold no more than 20 million cubic yards of dredged spoil; the Hart and Miller Islands site has a projected capacity of approximately 52 million cubic yards. As the Corps’ responses to the comments of the Hart and Miller Islands Area Environmental Group indicate, however, the construction of smaller dikes would result in a higher cost per cubic yard of capacity, because several expensive construction projects would have to be undertaken to achieve the containment capabilities offered by one site at the Hart and Miller Islands (E.I.S. 116-125, 57-62a). Plaintiffs also point out in this regard that the State of Maryland’s original ambition was to construct a facility able to contain 100 million cubic yards of dredged spoil, and that the selection of the Hart and Miller Islands site, capable of only half that amount, reflects a willingness to consider smaller facilities. Because smaller sites were dismissed from consideration on the basis of a 100 million yard capacity standard, argue plaintiffs, they must be reconsidered now in light of the 50 million cubic yard criterion satisfied by the Hart and Miller Islands site. The court is not persuaded by this line of reasoning. No matter what total capacity the State of Maryland seeks to achieve, the Corps has determined that it is more efficient to construct a small number of large facilities than it is to build many smaller ones. Having examined the Corps’ Impact Statement and considered plaintiffs’ contentions, the court concludes that the Corps gave reasonable consideration to a large number of alternative potential sites, and that having done so, it has satisfied NEPA’s procedural mandate. It is not within this court’s power or responsibility to question the wisdom of the selection of the Hart and Miller Islands site from among those alternatives. Plaintiffs’ final line of attack against the Corps’ consideration of alternatives to the Hart and Miller Islands dike is the allegation that the cost data used to compare alternative sites are grossly inaccurate. To support this assertion, plaintiffs first argue that any estimates of the cost of building the Hart and Miller Islands dike are unreliable because the expense of certain aspects of the construction process cannot now be determined; for example, the amount of unsuitable foundation material that will have to be removed cannot be precisely predicted. That certain items of the cost of construction cannot be accurately foreseen does now, however, render the cost estimates made in the E.I.S. valueless as a basis for comparison. Plaintiffs further contend that construction of the dike “will be plagued by over-runs, design deficiencies, shut-downs due to weather conditions, and other problems attendant with the implementation of a faulty design.” Plaintiffs offer no evidence to support these conclusory statements, however, nor do they suggest any reason to believe that the Hart and Miller Islands site will be uniquely subject to the problems they raise. Plaintiffs characterize the cost estimates contained in the Impact Statement as unreasonable, and support this contention by reference to a study, submitted as an exhibit to their motion for summary judgment, entitled “Cost Estimate of a Spoil Disposal Complex at Hart and Miller Islands,” prepared by Admiral Edgar Keats, president of a private consulting firm, at the request of the Hart and Miller Islands Area Environmental Group. This study concludes that the cost of constructing a diked disposal area at the Hart and Miller Islands site will be more than twice as great as indicated in the Corps’ E.I.S. The Keats Report cannot serve as the basis for comparing the costs of alternative sites, because it is addressed only to the Hart and Miller Islands project. In addition, this court has already noted that “the 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, supra, 411 U.S. at 138, 93 S.Ct. at 1242. The Keats study is not part of the administrative record in this case, was not before the Corps during its deliberations over the State of Maryland’s permit application, and therefore should not be considered by this court in its review of the Corps’ decision. Finally, even if this court were to consider Admiral Keats’ report, it would still defer to the expertise of the Corps in assessing the costs of constructing the Hart and Miller Islands dike. Plaintiffs do not contend that the costs of the project were not considered, but only that the Corps’ assessment of them is inadequate and incorrect. An evaluation of the merits of this contention, however, is not within the purview of the court’s role in this case. There is nothing in the administrative record to suggest that the Corps’ consideration of the costs of the proposed project was irrational or unreasonable, and there this court’s inquiry ends. The real thrust behind plaintiffs assertions of failure to consider alternatives is that the Corps was wrong in selecting the Hart and Miller Islands site as the most favorable for the dike project. Plaintiffs imply that it would be preferable to dispose of dredged material by means of open water dumping, on-land disposal, strip mine reclamation, brick manufacture, highway side-slope replacement, or diked