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Record cf Decision Attachment C -Agency Comment and Responses <br />Council Memo <br />_ J9nIIary 8, 2001 <br />Page 9 <br />reasonably:foreseeable elgnificant adverse impacts is . <br />essential Eo a reasoned choice among alternatives: and the <br />overall coats of obtaining it are not exorbitant, the agency <br />shall include the information do the environmental impact <br />statement. <br />40. CFR 1502:22 (2000) .. <br />Another C84 regulation states: <br />.:Agencies Shall prepare supplements to either.dra£t or <br />'final'environmental impact'atatementa if: <br />(if The 'agency<makea'sub~tantial changea'in the <br />proposed action that>ara relevant to'environmeritaY.concerns;.'. <br />or,' <br />(ii) there are significant: .new circumstances or <br />information :relevant to environmental concerns and bearing on <br />the proposed 'action or its impacts. <br />40 C.F.R.'§ 1502.'9(c) (i) (11) . <br />Courts:have interpreted<the "shall" .to mean a mandatory duty to <br />obtain and include the information in the .overall Wont. In many <br />..:.cases where the project has changed substantially; the courts have <br />required the agency to conduct a supplemental EIS. egg, port of <br />Aatoria~v. Hode1,~595 F.2d 467;:477-(9eh~Cir..1979)--.(movingofpower <br />plant site caused preparation of another EIS) Dubois v.'U.B: Dent. <br />of~Aariculture, 102 F.3d1273 (1°C~-0ir. 1996),~~cert~. denied,'S21- <br />U:S. 7119 (1997)<(change,in use in buffer. zone of ski area'cauaed <br />.required supplemental EIS); jhLOhea River watershed Conservancy v. <br />Glickman, 91 F.3d 437.(4`" Cir. i996)(failure to evaluate zebra <br />mussel infestation with supplemental 8IS was :arbitrary and <br />capricious). 'in:Huahee the court:atated: <br />But-the preparation of. an EIS does not.completa as agency's <br />HEPA duties. NEPA requires agencies to take 'a hard look at <br />the environmental conaequencee of their proposed prpjects even <br />aftas' an EIS has' bees prepared., Marsh v: Oregon` Natural . <br />Resources Council, '490 U.5,360,.374, 1093.Ct,1851,x,1859, <br />w supplemental EiS when.."[t]here are- aignifieant n <br />: .Council Memo <br />Jariuary.,8, 2001 - .. - <br />Page.lo <br />,circumstances or dnformatdon relevant -to. environmental <br />concerns and bearing on the proposed action or its impacts." <br />40 C.F:R.e 1502..9(c)I1)(ii)~. -. '[T]he newcircumstaace~must <br />present a seriously different picture of the environmental <br />impact of .the proposed project :from-what was previously <br />anvisioaed:' 83ckory Neighborhood Defense League v. <br />-~Skianer, 893F.2d 58, 63 (4th C3r:1990)(quoting Sierra Club <br />. - -v., FroehZke, a16F.2d'205,-210.(Sth Cir.1987)).. <br />Hushes; at ~ 443 . <br />- In thie`instance;;the failure to evaluate ;a known historic drapery <br />cleaning sad auto body" repair ehop~ in light of : he :other <br />.alternative sites being ao -closely: investigated, especially <br />'Alternative 1, is both arbitrary and capricious and unfair to the <br />other potential sites. ''Drapery cieaaing operatione;'depending on <br />the tims.period that they opsrated may have-used perchioroetylene, <br />like other dry cleaners at the. time. This hazardous chemical is <br />called a DHAPLS, which means that it -sinks to the bottom of :any <br />groundwater it encounters and is difficult and extremely expensive <br />to remediate. This unknown, coupled with.the known and extensive <br />hazardous waste contamination at the rent of .the Alteraative.2 <br />:'site, is sufficient reason to reopen the EIS process and insure <br />that a proper evaluation is completed of the Hazardous Materials <br />element of this EiS. Here, it is especially important because if <br />hazardous materials are found on the AutoCraft portion of the Sita, <br />because o8 that parcel's past'uaea, these hazardous materials will <br />be entirely different then any other hazardous materials found on <br />the remainder of the ald canning site. <br />secauae it was csA's own affirmative deaision.to not .include-the <br />AUtoCraft'aita ia.'the -examine8 alterxiatives;~ ~.ie beyond <br />comprehension to now have GSA claim Yegal dgnorance to the known <br />oontamifiants that may be found on the site. Then, further use such <br />.lank of-knowledge to elevate the AutoCra£t alternative proposal <br />over the other alternatives which have their hazardous materials <br />clearly delineated and evaluated. It would be prudent to evaluate <br />the AutoCraft site and then reopen the 8I5 process to iaalude that. <br />,information in 'a :comparative evaluation to then'-accurately <br />