Full opinion text
MEMORANDUM RAMBO, District Judge. In this action plaintiffs seek, inter alia, preliminary and permanent injunctive relief against the continued development, allocation of federal funds and construction of an access road to service components of the Montage Project located in Scranton and Moosic, Pennsylvania pending preparation, circulation and public review of a Final Environmental Impact Statement (FEIS) which fully complies with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., (1976) and its implementing regulations. Plaintiffs allege that the FEIS filed in support of the access road, for which federal funds have been approved, is inadequate on a number of grounds. Extensive briefs have been filed on numerous motions pending before the court. The court held two days of hearings on plaintiffs’ motion for preliminary relief as well as the case on the merits. For the reasons which follow the court will grant plaintiffs’ requests for injunctive relief which shall last only until the FEIS gives appropriate treatment to an alternative route alignment proposal which was suggested during public hearings on the draft EIS. I. Factual Background Plaintiffs in this action include Protect Our Water and Environmental Resources, Inc. (POWER); James Golden, Jr.; Mary Allen and the Sierra Club. The Borough of Moosic, Pennsylvania was also a party plaintiff but filed a voluntary dismissal which was approved by the court on September 7, 1982. Defendants include the Appalachian Regional Commission (ARC); A1 Smith and Richard Thornburgh, Co-Chairmen of the ARC; Drew Lewis, Secretary of the U.S. Department of Transportation; Ray Barnhart, Jr., Administrator of the Federal Highway Administration (FHWA); FHWA; George T. Turner, Jr., Regional Administrator of the FHWA Region Three; (these last four named defendants will be referred to as the federal defendants); Thomas D. Larson, Secretary of the Pennsylvania Department of Transportation (PennDot); Montage, Inc.; Lackawanna County Board of Commissioners; Charles Lugar, Chairman, Board of Commissioners of Lackawanna County; Scranton Lackawanna Industrial Building Co. (SLIBCO) (these last four named defendants will be referred to as Montage, Inc., et al.); Pennsylvania General Services Administration. (By order dated September 13, 1982 the Pennsylvania General State Authority was substituted as the proper party defendant in place of the Pennsylvania General Services Administration.) This action arises from a proposal prepared by Montage, Inc. to develop the Montage Project in Lackawanna County, Pennsylvania. Montage, Inc. is a cooperative venture sponsored by the Lackawanna County Commissioners, the Scranton Central Labor Union (AFL-CIO) and its Building Trades Council and the Greater Scranton Chamber of Commerce. The latter chamber has worked through its industrial development organizations, the Lackawanna Industrial Fund Enterprises (LIFE) and (SLIBCO) (FEIS Vol. I, p. 4). The Montage project includes construction of a multi-season recreation area, civic arena, motor inn complex and access road. The access road will provide access to the multi-season recreation area and civic arena from the Davis Street Interchange of Interstate 81. The motor inn will have direct access from Davis Street (FEIS Vol. I, p. 3). The Montage Project is situated on a 534 acre tract of land 425 acres of which was originally owned by the Pennsylvania Gas and Water Company (PG & W) (FEIS Vol. I, pp. 1, 2, 6). In February 1977 the Lackawanna County Commissioners filed an application with the Appalachian Regional Commission (hereafter ARC) for a grant of federal funds to construct a 2.1 mile, two lane controlled access road (FEIS Vol. I, p. 6). The access road right of way comprising 140 feet will be owned and maintained by Lackawanna County to create a buffer zone to control development (FEIS Vol. I, pp. 7, 11). The design and construction of the road would be administered by Penn-Dot. In May 1978 the ARC approved funding of the Montage access road with two preconditions. The ARC forwarded the application to the FHWA. (Administrative Record, hereafter AR, doc’ts. dated May 22, 1978 and May 24, 1978). The FHWA administers the ARC highway program pursuant to 40 U.S.C. § 201(a) and 49 C.F.R. § 1.48(j). The FHWA determined that an Environmental Impact Statement (EIS) was required prior to construction of the road (AR doc’t. dated August 10, 1979). A Draft Environmental Impact Statement (DEIS) was approved for release by FHWA on August 7, 1980 (AR doc’t. dated August 8, 1980). Public hearings were held on the DEIS on October 7 and 8, 1980 (AR doc’ts. dated August 8, 1980 and Dec. 10, 1980). The FEIS was signed on July 27, 1981 by the FHWA Administrator for Region 3 subject to the condition that FHWA and PennDot work closely with the Pennsylvania Game Commission to develop a program of measures to mitigate anticipated impacts of the Montage development on wildlife values (FEIS Vol. I Cover Sheet). The FEIS was published in the Federal Register, notice to the public of the FEIS’s availability occurred and following expiration of the public availability period, the Regional Director of FHWA signed the Record of Decision (AR doc’ts. dated Aug. 17, Aug. 28, Oct. 5, 1981 respectively). On May 12, 1982 ARC determined that the two preconditions set for release of federal funds for construction of the road had been met (AR doc’t. dated May 20, 1982). On May 20, 1982, FHWA gave authorization for construction as requested by PennDot (AR doc’t. dated May 20,1982). Bids were invited on May 28, 1982 and bid opening occurred on June 24, 1982. On August 10, 1982 the FHWA Division Administrator signed a Reevaluation of FEIS/Wetland Finding for the Montage Project (AR doe’t. dated August 11, 1982). In the reevaluation the FHWA re-examined the FEIS in light of new information on wetlands to determine if a supplemental EIS needed to be filed. The FHWA concluded that no supplemental EIS was necessary. II. Procedural Background Plaintiffs initiated this action by filing a verified complaint on March 2, 1982. The complaint set out five causes of action: violation of NEPA, 42 U.S.C. § 4321 et seq. and its implementing regulations, including 23 C.F.R. § 771 et seq., 40 C.F.R. 1500 et seq., and DOT Order 5610.1C; violation of § 404 of the Clean Water Act, 33 U.S.C. § 1344; violation of Executive Order 11990, 42 Fed.Reg. 26961 (1977); violation of Article I Section 27 of the Pennsylvania Constitution; violation of Borough of Moosic, Pennsylvania zoning and subdivision ordinances. The complaint sought preliminary and permanent injunctive relief on all counts. Motions to dismiss were filed by the following defendants: Montage, Inc., et al., Commonwealth of Pennsylvania on behalf of Governor Thornburgh and Thomas Larson and Pennsylvania General State Authority, ARC, and United States Attorney on behalf of Al Smith. Plaintiffs then moved for a preliminary injunction on all counts (although plaintiffs’ supporting brief only addressed NEPA, Executive Order 11990 and the Clean Water Act). Prior to a hearing on plaintiffs’ motion, the following defendants filed motions for summary judgment: Montage, Inc., et al., Commonwealth of Pennsylvania on behalf of Governor Thornburgh, Thomas Larson, Pennsylvania General State Authority; ARC; and the federal defendants. On July 27,1982 the court set August 23, 1982 as the hearing date on plaintiffs’ motion for a preliminary injunction. On August 4, 1982 the court signed a stipulation signed by all parties whereby the parties agreed inter alia that until August 12, 1982 no contract would be awarded and no costs would be incurred relating to construction of the access road. Upon expiration of the stipulation on August 12, 1982 but prior to the hearing on the preliminary injunction, plaintiffs moved for a temporary restraining order. Following a one day hearing on August 17, 1982 the court on the same day denied the motion based upon representations and testimony that no construction would begin prior to the preliminary injunction hearing on August 23, 1982. The court held hearings on the motion for preliminary and permanent injunctive relief on August 23 and 24, 1982. III. Jurisdiction Plaintiffs base jurisdiction upon 28 U.S.C. § 1331, NEPA, 42 U.S.C. § 4321 et seq., the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the doctrine of pendent jurisdiction. IV. Alleged Violations of NEPA A. Jurisdictional Issues Defendants ARC, Al Smith, and Richard Thornburgh, Federal Co-Chairmen of the ARC, filed motions to dismiss and motions for summary judgment concerning plaintiffs’ NEPA claim on the grounds plaintiffs had failed to state a claim upon which relief could be granted. The motions were based upon two theories: Congress exempted the ARC from NEPA responsibilities; the ARC is not a federal agency and hence has no responsibilities under NEPA. In support of their argument that neither the ARC nor its Co-Chairmen are subject to the mandates of NEPA, defendants ARC, Smith and Thornburgh rely upon National Wildlife Federation v. ARC, No. 78-1913 (D.D.C. filed September 13, 1979), aff'd. 677 F.2d 883 (D.C.Cir.1981) and SMASH, Inc. v. Moreland, No. C78-1091A (N.D.Ga., filed March 31, 1981). In those cases the district courts ruled that the Appalachian Regional Development Act (ARDA), 40 U.S.C.App. § 1 et seq. stands in conflict with NEPA and operates to specifically relieve the ARC and its Co-Chairmen from the obligation to prepare an EIS for activities associated with the Appalachian Development Highway System, 40 U.S.C.App. § 201. National Wildlife, No. 78-1913 slip op. at 7-11; SMASH, No. C78-1091A, slip op. at 6-8. This court agrees with the plaintiffs that the D.C. Circuit did not address ARC’s exemption from NEPA when the Circuit affirmed the district court decision in National Wildlife Federation, supra. Nevertheless, this court agrees with the reasoning of the two district court judges and their conclusion that the FHWA is the federal agency responsible for complying with NEPA requirements, not the ARC or its federal Co-Chairmen. The two district judges reviewed the legislative history of ARDA to reach their conclusion. The Conference Committee’s report on the 1967 amendment to § 223 of ARDA, {See Pub.L. 90-103, § 118 (1967)) stated: PROGRAM IMPLEMENTATION Section 223 of the 1965 act, as amended by the reported bill, provides that the Commission’s judgment with respect to applying Appalachian Act program criteria, including such matters as the evaluation of growth potential, financial need, and the importance of a program or project and its contribution to the permanent improvement of the area in which it is located and the region, shall be final and not subject to further review by the Federal departments and agencies. However, no program or project is to be implemented until the applications and plans relating thereto have been determined by the responsible Federal official to be compatible with the provisions and objectives of Federal laws which he administers that are not inconsistent with this act. The technical evaluation of projects and the actual accomplishment of programs and projects continues to be the responsibility of the Federal departments and agencies. (Emphasis added) The committee emphasizes that the Commission is not to become an operating agency. The Commission’s operation and experience to date amply demonstrate its ability to make final program and project decisions once the involved Federal agency or agencies has reviewed a proposal. This amendment is necessary to foster and facilitate the smooth and efficient prosecution of the program. H.R.Rep.No. 548, 90th Cong., 1st Sess. 23-24 (1967), reprinted in 1967 U.S.Code Cong. & Ad.News 1640, 1660. While the emphasized portion of the 1967 conference committee report might be ambiguous, congressional intent was made clear and succinct in the conference report to the 1975 amendments to the ARDA. (See Pub.L. No. 94-188, 89 Stat. 1079 (1975)). The conference report stated: The Congress designed the Appalachian Regional Development Act of 1965 so that in many of the programs under the Act (such as those authorized in sections 202, 204, 205, 207, 211, and 214), the supplemental or special basic grant assistance approved by the Commission is subsequently extended to the grantee through the framework of Federal grant-in-aid programs administered by Federal departments and agencies. Section 116 of the Conference Report provides further clarification that the responsible Federal official shall review such grants only to determine that they are not incompatible with the provisions and objectives of the framework laws which he administers. In making this modification, however, it is intended that the Federal official administering the framework program through which the Appalachian Act assistance is provided, shall continue to discharge responsibility for assuring that such grants are not incompatible with other Federal laws such as, for example, the National Environmental Policy Act. Thus, the conferees intend, in such cases, that the department or agency responsible for the basic program would make such reviews and assessments as might be required by the National Environmental Policy Act. (Emphasis added) S.Rep. No. 94-552, 94th Cong., 1st Sess. 23 (1975); H.R.Rep. No. 94-727, 94th Cong., 1st Sess. 23 (1975) reprinted in 1975 U.S. Code Cong. & Ad.News 2157, 2189. The need for all program grants of ARC to comply with NEPA is not exempted, but ARC is clearly not the entity responsible for the environmental obligations required by NEPA. Therefore, the court concludes plaintiffs have failed to state a claim against defendants ARC, A1 Smith and Richard Thornburgh regarding compliance with NEPA. B. NEPA Requirements NEPA requires all agencies of the Federal Government to 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 on (1) 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. 42 U.S.C. § 4332(2)(C). NEPA imposes “essentially procedural” duties, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) upon administrative agencies considering actions having the potential for affecting the environment. Township of Lower Alloways Creek v. Public Service Electric and Gas Company, 687 F.2d 732 (3d Cir.1982). According to the Third Circuit, NEPA is intended to serve two main objectives: The dominant “thrust” of the Act is to ensure “that environmental concerns [are] integrated into the very process of agency decisionmaking.” Additionally, the various procedures mandated by the statute are intended to “inform the public that the agency has considered environmental concerns in its decisionmaking process.” (Citations omitted) Township of Lower Alloways Creek, 687 F.2d 732 at 739. Furthermore, NEPA requires only that an agency “consider” the environmental consequences of its decisions. Hence, once an EIS is prepared, it does not dictate any substantive outcome; the EIS is intended to make decision makers aware of the potential environmental ramifications of their actions. Township of Lower Alloways Creek, 687 F.2d 732 at 739 n. 13. C. Scope of Review There are two aspects to a court’s review of an agency decision subject to the requirements of NEPA. First, a reviewing court must assess the agency’s compliance with the duties NEPA places upon it. These duties are essentially procedural. The procedures are designed to insure that the agency takes a hard look at the environmental consequences of its proposed action. Bosco v. Beck, 475 F.Supp. 1029, 1033-34 (D.N.J.1979) aff'd mem., 614 F.2d 769 (3d Cir.), cert. denied, 449 U.S. 822,101 S.Ct. 81, 66 L.Ed.2d 24 (1980). NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. It is to insure a fully informed and well-considered decision, 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 this agency. Administrative decisions should be set aside in this context, as in every other, not simply because the Court is unhappy with the result reached. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Vermont Yankee recognizes the impropriety of federal courts engrafting additional procedural or substantive standards onto the statutory requirements for administrative action. See North Slope Borough v. Andrus, 642 F.2d 589, 598-99 (D.C.Cir. 1980). This court believes that its review of agency procedures within the requirements of NEPA is governed by the Administrative Procedure Act, 5 U.S.C. § 706(2)(D) which permits a court to set aside agency action found to be “without observance of procedure required by law.” Gloucester County Concerned Citizens v. Goldschmidt, 533 F.Supp. 1222 (D.N.J. 1982); Hovson’s, Inc. v. Secretary of Interior of U.S., 519 F.Supp. 434, 443 n. 2 (D.N.J.1981). Second, the court makes a substantive review of the agency’s action. This substantive review is quite narrow in scope. The court should only determine if the agency has given good faith consideration to the environmental consequences of its actions. The court should not pass judgment on the balance struck by the agency among competing concerns. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir.1980). This second review was set out in Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) (per curiam): 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 “intellect itself within the area of discretion of the executive as to the choice of the action to be taken.” Another issue raised in this case concerning the court’s scope of review of agency compliance with NEPA requirements involves the admissibility of evidence outside of the administrative record. Plaintiffs asserted in their brief opposing defendants’ motions for protective orders and motions for summary judgment that the court should hear evidence outside of the administrative record in order to evaluate the alleged inadequacies of the FEIS. In support of their position plaintiffs principally relied on County of Suffolk v. Secretary of Interior, 562 F.2d 1368 (2nd Cir.1977), cert.denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978) where the sufficiency of an EIS was under attack. In that case the Second Circuit stated that: Allegations that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism under the rug ... raise issues sufficiently important to permit the introduction of new evidence in the district court, including expert testimony with respect to technical matters, both in challenges to the sufficiency of an environmental impact statement and in suits attacking an agency determination that no such statement is necessary. (Footnotes and Citations omitted) County of Suffolk, 562 F.2d at 1384-85. The Second Circuit, however, limited the probative value of such new evidence. Such evidence was relevant in the case before the court only insofar as it tended to show the agency’s research or analysis was clearly inadequate or that the agency failed to set forth opposing views widely shared in the relevant scientific community. 562 F.2d at 1385. In further support of their position plaintiffs cited two other circuit cases: Izaak Walton League of America v. Marsh, 655 F.2d 346 (D.C.Cir.1981), cert. denied, 454 U.S. 1092, 102 S.Ct. 657, 70 L.Ed.2d 630; Citizens for Balanced Environment and Transportation, Inc. v. Volpe, 650 F.2d 455 (2d Cir.1981). Defendants Montage, Inc., et al. and the federal defendants argued that the court’s review was limited to the administrative record and that a de novo review was impermissible. Defendant Montage, Inc., et al. cited among other cases, Dry Color Manufacturers’ Association, Inc. v. Department of Labor, 486 F.2d 98 (3d Cir.1973) and Philadelphia Council of Neighborhood Organizations v. Coleman, 437 F.Supp. 1341 (E.D.Pa.1977), aff'd mem., 578 F.2d 1375 (3d Cir.1978). In Dry Color the Third Circuit reviewed Department of Labor emergency temporary standards under the substantial evidence in the record test required by 29 U.S.C. § 655(f). The court found that a report which appeared to constitute substantial evidence for the DOL action was not part of the administrative record. The court stated in a footnote: It has long been settled that in reviewing an agency’s action and the adequacy of an agency’s articulation of its action, including findings of fact and reasoning processes, courts must look to the record that was considered by the agency and to the factual findings and reasoning of the agency — not to post hoc rationalization of counsel or even agency members and not to evidentiary materials that were not considered by the agency. (Citations omitted.) 486 F.2d at 104 n. 8. In Philadelphia Housing, the district court ruled on the adequacy of an FEIS, among other things. The court limited its review to the administrative record although the court indicated that material outside of the record was sometimes admissible and cited Suffolk County, supra. The district court concluded, however, that it was unnecessary in the case before it to refer to extra-record evidence to analyze the EIS. 437 F.Supp. at 1366. This court reviewed the parties’ briefs and cases and decided that the Third Circuit had not issued an opinion binding on courts in this circuit conclusively addressing whether plaintiffs challenging the sufficiency of an FEIS could introduce “new evidence” in the district court in order to prove their claim. Therefore, the court allowed plaintiffs to introduce testimony during the hearing on the preliminary injunction and the case on the merits which did not appear in the administrative record. Plaintiffs presented testimony from James Maughan and Elizabeth Levin concerning a report they helped prepare in February 1982 at plaintiffs’ request which analyzed deficiencies in the FEIS. ' The substance of much of their testimony was not part of the administrative record. Plaintiffs also presented testimony from Hugh Palmer of the Pennsylvania Game Commission and Richard McCoy of the United States Fish and Wildlife Service. Major portions of the testimony of the latter two witnesses appear in the administrative record in the form of letters from the Game Commission and United States Fish and Wildlife Service to the FHWA concerning deficiencies in the DEIS and in the form of comments presented at the public hearing on the DEIS. The United States Fish and Wildlife Service also commented upon the FEIS in a letter to the FHWA dated October 5, 1981. Plaintiffs also introduced exhibits some of which did not appear in the administrative record. With two exceptions defendants only called witnesses who had prepared or reviewed the FEIS in question. (One defense witness, Howard Grossman, had not participated as an FEIS preparer or reviewer. Mr. Grossman briefly testified as to his qualifications as an expert on planning and economic development but was then withdrawn by defense counsel.) The other defense witness who had not participated as an official preparer or reviewer of the FEIS was Jack Sweeney, Montage Project Manager. Portions of his testimony appear in the administrative record. Defendants introduced exhibits some of which did not appear in the administrative record. Subsequent to the hearing on this case, the Third Circuit issued its opinion in Township of Lower Alloways Creek, 687 F.2d 732. Although the Alloways Creek opinion does not precisely address whether plaintiffs challenging the sufficiency of an FEIS in a district court may introduce evidence outside of the administrative record, this court concludes that the Third Circuit has given a strong signal that such evidence is inadmissible. In Alloways Creek the petitioners contended that the Nuclear Regulatory Commission (NRC) acted unlawfully and unreasonably when it concluded that no significant environmental effects would accompany the storage of additional quantities of spent fuel at the site of the Salem I nuclear reactor and that therefore the preparation of an EIS was unnecessary. In defining the burden the petitioners had to carry in making their claim, the Third Circuit quoted from Vermont Yankee: while it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions. (Emphasis added) [Administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that “ought to be” considered and then, after failing to do more than bring the matter to the agency’s attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters “forcefully presented.” (Citations omitted) (Emphasis added) Lower Alloways Creek, 687 F.2d 732 at 743. The Third Circuit rejected the Township of Alloways Creek contention that “[t]o a layman, it seems rather obvious that increasing spent fuel storage of fuel assemblies by a factor of four or five times is a major federal action having potential significant effect on the human environment.” Id., at 747. The Court stated: Vermont Yankee would appear to require — not only of intervenors before a federal agency, but also of petitioners before this Court — that at least some effort be made to advance specific allegations tending to indicate that the agency somehow misapplied the law, misinterpreted the evidence, overlooked certain testimony, or unreasonably reached its “no significant impact” determination. (Emphasis added) Id., at 747. The Court found that the Township lacked any evidentiary underpinning for its declaration that the Salem I expansion was significant. Significantly, the Court pointed out that: The Township had not contended that the Commission on the basis of the record before it, (emphasis in original) arrived at the wrong result with respect to the “significance” question • ... Nor does the petitioner point to any evidence in the record (emphasis added) proffered by it or anyone else demonstrating that significant environmental effects will accompany the incremental spent fuel storage increase at Salem I. (Footnote omitted) Id., at 746. On the basis of the extensive quotation from the Third Circuit’s Alloways Creek decision, it appears to this court that the Third Circuit would require those plaintiffs challenging the adequacy of an FEIS to base their challenge upon the evidence placed before the agency during development of the administrative record. The Third Circuit’s reliance on the quoted portions of Vermont Yankee also suggests to this court that plaintiffs wishing to challenge NEPA-related agency actions must at least bring their concerns to the agency’s attention in a forceful manner or point out that their concerns were brought to the agency’s attention by others. In conclusion, this court believes that its focus must be limited to the administrative record prepared in connection with the FEIS under attack. The court therefore will disregard the testimony of plaintiffs’ and defendants’ witnesses to the extent that the substance of their remarks do not appear in the administrative record. Similarly, the court will not rely upon any exhibits which do not appear in the record. D. The court will now address the alleged deficiencies in the FEIS seriatum. 1. Plaintiffs contend that the FEIS totally fails to consider Route 502 as an alternative alignment for the proposed access road. Plaintiffs contend that this alternative route was specifically proposed at the public hearings on the DEIS on October 7th and 8th, 1980. In order to evaluate plaintiffs’ contentions, it is necessary to review the administrative record concerning the Route 502 alternative. On December 11,1979, Joseph Kukla sent a letter to the FHWA wherein he proposed Route 502 as an alternative to the proposed alternative one access road to serve the Montage project (AR doc’t. dated January 30, 1980). On January 30, 1980 the FHWA division administrator sent a letter to Mr. Kukla advising him to present his concerns about the route location at the public hearing on the DEIS in written or oral form (AR doc’t. dated January 30, 1980). On December 10, 1980 a memo was sent from PennDot officials to the Montage project manager discussing the transcript of the public hearing on the DEIS held on October 7 and 8, 1980 and the need to respond to comments on the DEIS. The memo refers to written testimony presented by Joseph Kukla which supplements his oral testimony and indicates his comments must be answered (AR doc’t. dated December 10, 1980). By letter dated September 22, 1981 Joseph Kukla wrote to the FHWA objecting to the omission of Route 502 from the FEIS. He also sent a study showing that Route 502 could provide a safer, shorter road with less impact on the environment and with a savings of $1.3 million (AR doc’t. dated October 9, 1981). On October 5, 1981 William Sageman of the FHWA prepared a memorandum concerning comment letters on the FEIS received prior to expiration of the public availability period on the FEIS. Mr. Sageman addressed in his memo the letter from Mr. Kukla dated September 22, 1981 in which the latter suggested the Route 502 alternative. Mr. Sageman’s memo indicates that “Div. and State review (sic) his testimony at the public hearing and found he failed to suggest such an alternative at the proper opportunity ... I feel it is not reasonable alternative to the proposed and approved access road which clearly meets its design intent.” This memo has a concurrence signed by V.D. Smeins dated 10/5/81 (AR supplement signed by Fleming, 8/13/82 doc’t. dated October 5, 1981). On October 5, 1981 Mr. Sageman also prepared a handwritten evaluation of Mr. Kukla’s alternative. The handwritten evaluation concludes that the alternative does not fulfill the total envisioned area development and forgets the motor lodge and therefore is not considered to be a reasonable alternative. The memo goes on to state that “Mr. Kukla’s biggest mistake was not suggesting this at the public hearing when the public record would then have to demonstrate an analysis of the alternative.” (Emphasis added) (AR supplement signed by Fleming 8/13/82 doc’t. dated October 5, 1981). By letter dated October 9, 1981 the FHWA acting division administrator sent a letter to Mr. Kukla in response to his letter of September 22, 1981. The FHWA letter indicated that the concept proposed by Mr. Kukla in his September letter required utilization of an existing congested interchange, as well as other non-interstate roads through developed areas, in providing the direct connection between the interstate highway and the recreational facilities. According to the FHWA letter, the concept is considered outside the scope of the ARC approval and the approved FEIS (AR doc’t. dated October 9, 1981). By letter dated October 14, 1981, Mr. Kukla wrote to the FHWA regional administrator asking if there was any way to include within the FEIS the alternative he had sent to the FHWA by letter dated September 22, 1981 (AR doc’t. dated October 14, 1981). The FHWA responded to Mr. Kukla’s above letter by their own letter dated October 30, 1981 (AR doc’t. dated October 30, 1981). The FHWA advised Mr. Kukla that his alternative could not be added to the approved FEIS because it was not identified and studied during the FEIS developmental process. The FHWA went on to indicate that the office did consider the alternative and proposed study before approving the record of decision for the FEIS on October 5, 1981. The FHWA concluded that the suggested alternative was not a reasonable alternative for the planned component(s) of the Montage project. Another letter was sent by the FHWA to Mr. Kukla dated December 22, 1981 (AR doc’t. dated December 22, 1981). In that letter the FHWA indicated that the study supplied to them by Mr. Kukla only studied access to the civic arena and recreational complex which is less than planned for by the Montage project. The FHWA letter indicated that their division office and PennDot staff had reviewed Mr. Kukla’s recorded public hearing testimony on the DEIS and had found no evidence that the alternative he supported had been presented at the public hearing. By letter dated January 6, 1982 Mr. Kukla sent a letter to FHWA enclosing a copy of his written testimony presented at the public hearing on the DEIS in which he indicated that page 2 clearly addressed his proposed alternative (AR supplement signed by Fleming 6/14/82 doc’t. dated January 6, 1982). It is clear from the record that FHWA then began checking to determine what had happened to the written testimony that Mr. Kukla apparently presented at the DEIS public hearing. By a memo to files dated August 2, 1982 (AR doc’t. dated August 2, 1982) Mr. Sageman indicated that Mr. Kukla’s letter of January 6, 1982 was sent to the FHWA division office in Pennsylvania for explanation. The memo indicates that the FHWA division office referred the letter to PennDot. PennDot advised the FHWA division office in late April of 1982 “that there had been a slip up with the written material submitted by Mr. Kukla.” (Emphasis added) The memo indicates that PennDot had received some material from Mr. Kukla and forwarded the material to the project sponsor for incorporation into the public hearing record. The memo indicates that PennDot could not locate this letter in their previous checks. The material was not included in the public hearing record and therefore was not included in the comments/responses section of the FEIS. The memo goes on to indicate that the final decision was not without consideration of the suggested alternative since FHWA did review it and found that it was clearly not a reasonable alternative. The memo parenthetically cites a letter dated 12/22/81. Plaintiffs contend that the FEIS is deficient for its failure to evaluate the Kukla alternative. Defendants deny the allegation insisting the omission of the alternative in the FEIS was inadvertent but nevertheless the administrative record demonstrates that the alternative was considered and rejected as unreasonable because it did not satisfy the requisite criteria for the project. The parties focused on whether the Kukla alternative was “reasonable” and whether the FEIS had to discuss it as an alternative to the proposed route alignment pursuant to 42 U.S.C. § 4332(2)(C)(iii). While this is an issue, the court also believes that it must address the FEIS’s failure to respond to a public comment on the DEIS as required by NEPA implementing regulations discussed below. The court concludes that the FEIS fails to comply with the policy of NEPA and its implementing regulations concerning the treatment of public comments received on the DEIS. Council of Environmental Quality (CEQ) implementing regulations and FHWA implementing regulations contemplate a reasonable opportunity for public and official comment on the impact statement. CEQ regulations require the agency preparing a FEIS to assess and consider comments and to respond in one or more of the means listed including explaining why the comments do not warrant further agency response. The CEQ regulations also require all substantive comments received on the DEIS to be attached to the final statement whether or not the comment is thought to merit individual discussion by the agency in the text of the statement. 40 C.F.R. § 1503.4(a)(b) (1981). Regulations drafted by the FHWA provide that after circulation of the DEIS and consideration of comments received, a FEIS shall be prepared by the administration. The FEIS shall identify the preferred alternative, discuss substantive comments received on the DEIS and all reasonable alternatives considered, summarize citizen involvement and include where appropriate a description of the procedures to be followed to assure that all environmental mitigation measures are implemented. 23 C.F.R. § 771.125(a)(1) (1981). The Department of Transportation has also prepared an Order governing procedures for considering environmental impacts. See DOT Order 5610.1C dated September 18, 1979. The Order’s provisions governing final statements became effective after July 30, 1981 for those final statements whose drafts were filed with the Environmental Protection Agency (EPA) by July 30, 1979. The provisions apply to the Montage Project FEIS because the DEIS was filed with the EPA on August 11,1980 (AR doc’t. dated September 5, 1980). Under the provisions governing final statements, the Order states: “Every effort should be made to resolve significant issues raised through circulation of the draft EIS ... the final statement shall reflect such issues ...” p. 12 DOT Order 5610.1C. Additionally, the Order states that: “A summary of citizen involvement and any environmental issues raised should be documented in the EIS.” p. 18 DOT Order 5610.1C. This unpublished Order may be binding if so intended by the agency. Doe v. Hampton, 566 F.2d 265, 281 (D.C.Cir. 1977). Examination of the above provisions persuades this court that the DOT intended the provisions to be mandatory during preparation of final statements. Courts have addressed the method by which agencies are to respond to comments received from other agencies and from the public and the rationale for the response. In State of California v. Bergland, 483 F.Supp. 465, 494 (E.D.CA 1980) the court indicated that while an agency is not required to follow or adopt the comments it receives on an EIS, the relevant questions under NEPA are whether such comments are made available to decision makers, and whether they receive good faith attention from decision makers. The purpose of an EIS is to disclose such issues. (Emphasis added) The rationale for responding to public comments was set forth in Lathan v. Volpe, 350 F.Supp. 262, 265 (W.D.Wash. 1972): The public may also raise environmental questions by way of comment to the draft impact statement. Since the final impact statement must respond to these comments, as well as to the comments of government agencies, environmental harm which might have been overlooked by highway officials may be brought to their attention. For this reason, highway officials must give more than cursory consideration to the suggestions and comments of the public in the preparation of the final impact statement. The proper response to comments which are both relevant and reasonable is to either conduct the research necessary to provide satisfactory answers, or to refer to those places in the impact statement which provide them. If the final statement fails substantially to do so, it will not meet minimum statutory requirements. There appears to be no argument from the cited portions of the administrative record that FHWA viewed Mr. Kukla’s comment as substantive, in the words of 3 C.F.R. § 771.125 and relevant and reasonable, in the words of Lathan v. Volpe. It is clear that FHWA failed to respond to Mr. Kukla’s written comment. Defendants argue, however, that a review of the administrative record discloses that FHWA considered the alternative and thus the inadvertent omission of the comment cannot render the FEIS invalid. In Grazing Fields Farm, 626 F.2d at 1073 the court addressed the policy considerations for not allowing use of the administrative record to partially satisfy NEPA’s requirement for a detailed statement. That case involved FEIS treatment of an alternative to the proposed route alignment extension. The alternative was proposed three years prior to final approval of the FEIS. The state and federal agencies rejected the alternative following their examination of it through a report by their engineer. A favorable report on the alternative was then submitted to the state and federal agencies about one year before the FEIS was approved. The state agency prepared an addendum addressing the report. The addendum never became part of the FEIS and thus never was circulated to federal agencies nor available for comment. The federal agency responded to the report by a letter to its author. The letter did not respond to the report’s criticisms of the proposed alignment. The Grazing Fields defendants maintained that regardless of the insufficiency of the FEIS itself, a review of the entire administrative record indicated that the FHWA had thoroughly considered the proposed alternative in good faith and had thereby complied with the goals of NEPA. Since this is essentially the argument put forth by the defendants in this case, the court agrees entirely with the discussion given to the defense in Grazing Fields Farm, In that case, the First Circuit Court of Appeals stated: We also find persuasive policy reasons for holding that an administrative record cannot save an EIS that otherwise fails to satisfy NEPA. In short, the requirement of a detailed statement is not a pointless technicality even when the agency has in fact considered environmental factors in good faith; intra-agency consideration lacks the benefits secured by discussion in the EIS. NEPA seeks to achieve substantive environmental improvement by requiring full disclosure of the basis for agency action____ NEPA contemplates that disclosure be made ... to other departments of government and the public at large. Public oversight of government action that affects the quality of environment has flourished under NEPA____the logic of the district court’s approach (which concluded that the EIS and the administrative record satisfied NEPA requirements) runs counter to the socially useful scrutiny because it would place the burden of combing the administrative record, which is often scattered through the files of numerous federal and state agencies, on interested members of the public. NEPA expressly places the burden of compiling information on the agency so that the public and interested government departments can conveniently monitor and criticize the agency’s action____ The district court’s approach ... would hinder at least two of the purposes of an environmental impact statement ... it would hamper the flow of information to the public by making more difficult the endeavors of watchdogs who could reasonably be expected to publicize the environmental issues present, and would tend to mute those most likely to identify problems and criticize decisions. The Grazing Fields opinion did make clear that the administrative record could be used by reviewing courts to determine the adequacy of discussion of alternatives in an FEIS: A court can use the administrative record to set the standard for how much discussion within the EIS a particular alternative merits, but cannot deem the unincorporated record to satisfy that standard. (Footnote omitted) 626 F.2d at 1074. This court finds that the above policy decision applies in this case. Since NEPA is to operate as a detailed and full disclosure document, failure of defendants to respond in the FEIS to Mr. Kukla’s comment impedes the very purposes sought to be served by NEPA. The court is aware that relief under NEPA should be remedial rather than punitive and that not all NEPA violations warrant the granting of an injunction. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 at 1022. Courts have refused to grant injunctions despite NEPA violations in cases where defendants’ good faith efforts to comply with the statute were apparent and most importantly, where defendants’ failure to comply with the Act did not result in prejudice. See Warm Springs at 1022. This court is unable to conclude that no prejudice has resulted from the FHWA’s failure to include within the FEIS the comment made by Mr. Kukla on the DEIS concerning the alternative route proposal as indicated by Grazing Fields quoted above. The federal defendants cited numerous cases in support of their argument that no violation of NEPA had occurred in the FHWA’s treatment of the Kukla alternative. The cited cases only dealt with the issue of the FEIS discussion of reasonable alternatives and not with the issue of an FEIS’s failure to respond to a public comment on the DEIS. Therefore, to the extent the cases address only the question of discussion of reasonable alternatives, the court finds them inapposite on the public comment issue. The court will therefore grant plaintiffs’ motion for a preliminary injunction but only until defendants have prepared and circulated a supplemental EIS responding to the Kukla alternative. The parties structured their discussion of the Kukla alternative around the question of whether the FEIS should have discussed the Kukla alternative within the section on reasonable alternatives pursuant to 42 U.S.C. § 4332(2)(C)(iii) and 23 C.F.R. § 771.-125(a)(1). The court concludes that it is unable to address this issue until FHWA responds to the Kukla alternative and the response has been circulated to the public and other agencies for review and response. Only then will the record be fully developed concerning the alternative. Then the court can evaluate the record in order to assess FHWA’s conclusion (presuming the conclusion remains unchanged), that the Kukla proposal fails to fully satisfy the project goals and hence needs no discussion in the FEIS. 2. Plaintiffs allege that the FEIS fails to comply with 42 U.S.C. § 4332(2)(A) in that the team of preparers of the DEIS and FEIS did not include environmental planners or designers. 42 U.S.C. § 4332(2)(A) provides that all agencies of the federal government shall utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment. The list of preparers of the FEIS under attack included individuals with the following engineering experience: acoustical, environmental, civil, sanitary, architectural, structural, energy conservation, road design construction, and hydraulic. The list of reviewers of the FEIS included individuals all having specialized training in the environmental area of highway engineering as well as individuals with specialized training in the preparation and review of environmental studies and related documents. Plaintiffs have offered no evidence from the administrative record to substantiate their claim that the team of preparers failed to comply with the mandate of NEPA. The court is satisfied from the review of the FEIS and supporting documentation that the team of preparers adequately performed their job. Additionally, in light of the court’s treatment below of the plaintiffs’ allegation that the FEIS failed to adequately discuss secondary growth impacts in areas surrounding the Montage Project, the court feels that the omission of environmental planners did not preclude the team of preparers from adequately complying with NEPA requirements. 3. Plaintiffs also allege in their complaint that the FEIS principally concerns itself with the direct impact of the access road. They allege that it fails to adequately identify and evaluate the environmental impacts of the three components of Montage (ski area, civic arena and hotel complex) and the means to mitigate those impacts. Plaintiffs specifically allege that there has been no preparation of a written mitigation plan despite the qualified approval given to the FEIS by the FHWA Region Three director. The qualified FEIS approval required FHWA and PennDot to work closely with the Pennsylvania Game Commission to develop a program of measures to mitigate anticipated impacts of the Montage development upon wildlife values. In support of their allegations plaintiffs offered the testimony of Hugh Palmer of the Pennsylvania Game Commission, James Maughan of Metcalf & Eddy, Inc. and Richard McCoy of the United States Fish and Wildlife Service. Mr. Palmer testified that the FEIS was inadequate regarding the discussion of impacts and mitigation measures due to construction and operation of the ski slope and motor lodge. He indicated concern that no alternative plan had yet been developed for the specific location of the civic arena. Mr. Maughan testified that the FEIS was deficient in addressing the impacts and necessary mitigation measures as to all components of the Montage Project. Mr. McCoy testified that the United States Fish and Wildlife Service was concerned about lack of site specific plans for the civic arena, storm water run-off from all project components, lack of specific plans for ski area construction and operation, lack of identification of soil borrow sites and revegetation plans. The court examined the administrative record and was unable to find any comments from Mr. Palmer or Mr. Maughan on the FEIS. With the exception of remarks about operation of the ski slope, however, the substance of their remarks generally appear in the record as presented by other agencies or individuals. The administrative record does disclose that the United States Fish and Wildlife Service submitted a letter dated October 5, 1981 to the FHWA following the Service’s review of the FEIS (AR doc’t. dated Oct. 16, 1981). The letter identified three remaining areas of concern to be resolved before the project began. Mr. McCoy indicated he helped prepare the letter. The court will consider those portions of Mr. McCoy’s testimony that are reflected in the Oct. 5, 1981 letter and in the administrative record as raised by others and those portions of the testimony of Mr. Palmer and Mr. Maughan which appear in the record as raised by others. The October 1981 letter from the United States Department of the Interior commenting on the FEIS identified three concerns: the need to include measures within the erosion and sedimentation control plan to neutralize acidic waters from the project area before the acidic waters enter Stafford Meadow Brook; the need to identify the location of borrow sites for topsoil to cover the ski slope and mine dump and to identify revegetation plans for any of the borrow sites; and the suggestion that further consideration be given to alternative three as the proposed access road alignment in order to avoid adverse impacts on wetlands near the proposed site of the civic arena and to reduce the number of cuts and fills associated with construction of the access road. Defendants offered the testimony of Edward Osnick of PennDot and the affidavits and testimony of William Sageman (Federal defendants’ Exhibits 11 and 13) and Virgil Smeins (Federal defendants’ Exhibit 12) of FHWA. Major portions of the testimony of these three witnesses concerning mitigation efforts appear in the administrative record and hence will be evaluated. The court has examined the FEIS and the supporting studies to which it refers. The court finds that the FEIS and its studies did in fact examine not only the direct impacts of the access road but also identified and evaluated the direct and secondary environmental impacts of the other Montage components to the extent reasonably possible at this stage of their development. In the report on hydraulic computations (Federal defendants’ Exhibit 3) there is a discussion of the predicted effect of storm drainage from the project components into the Stafford Meadow Brook, Rocky Glen Pond and # 5 reservoir. Additionally, the report addresses the drainage of the ski slopes and discusses possible mitigation measures for any erosion problems. Finally, in the supplement to the report (Federal defendants’ Exhibit 4), erosion and sedimentation control measures are discussed for the access road and the ski slopes. In the aquatic biology reports (Federal defendants’ Exhibits # 7 and 8) accompanying the FEIS, six sampling stations throughout the Montage project area were evaluated. The first report concluded that no permanent adverse affects could be anticipated on the sampling stations provided a sound soil erosion and sedimentation control plan approved by the USDA Soil Conservation Service was implemented and properly maintained. A noise impact study (Federal defendants’ Exhibit # 5) was also performed for the Montage project. The study evaluated noise impacts at the proposed motel, civic arena and ski lodge sites. The report concluded that noise impacts at the civic arena and ski sites would not exceed the design noise levels at either site regardless of whether the build or no build alternative was chosen. The report concluded that noise impacts at the hotel site would be due mainly from traffic traveling on interstate route 81 and would not be in excess of the Federal Design Noise level whether or not the project was built. The FEIS also included a report which evaluated air quality impacts (Federal defendants’ Exhibit # 6) for all of the Montage components. The report concluded that the access road was consistent with the state implementation plan for air quality and that carbon monoxide concentrations generated by the access road at the recreation center, civic arena and motel site did not warrant further air quality analysis. A market study and financial projections report (Federal defendants’ Exhibit # 1) was also prepared on all aspects of the Montage project. The report concluded that construction of the access road would provide direct local economic benefit. The report further indicated that the Montage Triangle as a whole would beneficially effect the economic picture of the area in many ways including increased employment, increased demand for building materials for the complex, increased annuity-type expenditures and increased real estate taxes as a result of the motor inn. Finally, an extensive wildlife basis report (Federal defendants’ Exhibit # 10) was prepared which analyzed the likely impacts of the project components upon wildlife in the area. The report identified specific habitat types and habitat sizes within a 3,300 acre area surrounding the proposed Montage project. The wildlife report outlined a mitigation program covering the protection of critical habitats, mitigation during construction, and revegetation. It specifically recommended that the civic arena be relocated so as to avoid 10 acres of wetlands within the area specified for arena construction. This recommendation was adopted in the FEIS, Vol. II, p. 47. In light of the qualified approval given to the FEIS by the FHWA, representatives of the Pennsylvania Game Commission, United States Fish and Wildlife Service, Montage, Inc., et al. and PennDot have met to discuss mitigation proposals discussed in the FEIS Vol. I, pp. 41-42 for the Montage project as well as other proposals. The meetings are documented in the administrative record and will be briefly referred to in this opinion. On March 11, 1982 (AR doc’t. dated March 11, 1982), representatives of the above organizations met at a coordination meeting held as a condition of the approval of the FEIS. The final design of the proposed access road was reviewed and a number of mitigation measures were discussed. The meeting pertained only to the access road although the meeting notes reflect that further coordination and mitigation meetings would be held in the future to review the final design plans for the ski slopes, civic arena and the motel. (Emphasis added) Further meetings were held by the above representatives on June 2, 1982 (AR signed by Greenawalt, doc’t. dated June 2, 1982) where mitigation commitments were made by Montage, Inc. which would be included in the plans and contract proposal for construction of the access road. Another meeting was held on July 22, 1982 (AR signed by Greenawalt, doc’t. dated Aug. 4, 1982) whereby the above representatives held a lengthy discussion on numerous mitigation measures pertaining to construction of the access road. Also discussed at this meeting was the fact that final plans have not been developed for the proposed ski area. Meeting notes reflect that preliminary engineering and design plans are proceeding but final proposals will not be developed until the funding program in the form of bonds is completed. The above lengthy description of the FEIS and its supporting studies in addition to the extensive mitigation meetings that have occurred since the conditional approval of the FEIS indicate to this court that the FEIS does in fact consider the environmental impact not only of the access road but of the additional components of the Montage project. Although more detail could have been provided in the FEIS about the environmental impacts of the project components, the court concludes that sufficient information has been provided in the FEIS to enable a decision maker to make an informed judgment about the proposed project as it presently exists. It is important to remember that the civic arena, recreation area and motor inn are being developed by a non-federal agency (Montage, Inc.). As the administrative record indicates, final design plans have not been completed by Montage, Inc. for these project components and thus extensive site specific information does not appear readily available to the FHWA at this time. The amount of detail required in an FEIS is governed by a reasonableness standard, Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir.1976). It seems unreasonable to this court to require the FHWA to engage in more site specific analysis as to the other project components for which federal funds are not sought, when the non-federal agency, Montage, Inc. will choose much of the timing and implementation of the remaining project components. The court concludes that the FEIS does the best job it can do with its “two sovereignty” arrangement. See Hovsons, 519 F.Supp. at 447; Lake Erie, etc. v. U.S. Army Corps of Engineers, 526 F.Supp. 1063, 1069 (W.D.Pa.1981). 4. Plaintiffs further allege that the FEIS erroneously states that the project is not located in any wetlands. Plaintiffs contend that the access road directly crosses wetlands and construction of the civic arena will take approximately twelve acres of wetlands. Thus plaintiffs conclude the FEIS fails to identify or discuss the impact on these wetlands or to consider alternatives to avoid these areas. In support of their contentions plaintiffs offered the testimony of James Maughan of Metcalf & Eddy. He discussed the siting of the civic arena on twelve acres of wetlands. Plaintiffs also called Richard McCoy of the United States Fish and Wildlife Service. His testimony concerning wetlands is reflected in the administrative record in the form of a letter dated October 5, 1981 to the FHWA regional administrator which he helped prepare. In the letter the Department of the Interior iden