Red Line Alert v. Adams

No. 78-2778-S (D. Mass. February 13, 1980)

The court rules that the use of construction methods for a subway extension project different from those described in the environmental impact statement (EIS) does not necessarily require that the project be enjoined pending completion of a supplemental EIS. Defendants bear the burden, however, of establishing that the use of blasting rather than mechanical tunnelling will fall within the general noise level parameters set forth in the EIS and upon which approval of the project was based. The court rejects plaintiffs' claims that the project EIS does not adequately cover a change in location of the excavation site, a change in the termination point of the extension line due to reduced federal funding, effects upon nearby park land, and related highway modifications. A further hearing is required to resolve the question of defendants compliance with the noise level criteria; if those criteria are being exceeded, a supplemental EIS may be required.

Counsel for Plaintiffs
Gregor I. McGregor
27 School St., Suite 603, Boston MA 02108
(617) 227-7289

Counsel for Defendants
Donald Anderson, U.S. Attorney
J. W. McCormack P.O. & Courthouse, Boston MA 02109
(617) 223-2845

Stephen M. Leonard, Jose R. Allen, Ass't Attorneys General
Office of the Attorney General, Environmental Division
1 Ashburton Pl., Boston MA 02108
(617) 727-2265

Robert D. City
50 Congress St., Boston MA 02109
(617) 523-3050

[10 ELR 20314]

Skinner, J.:

Memorandum and Order on Objection to Megistrate's Report

The complainant in this action alleges that the defendants have violated the National Environmental Policy Act (NEPA) by failing to file supplementary environmental impact statements before proceeding with an altered plan to construct an extension of the "Red Line" underground rapid transit from Harvard Square to Alewife Brook Parkway.

A. Procedural History

This case was originally filed by the plaintiffs, various concerned individuals in their own names and an unknown number of others collectively described as Red Line Alert, on October 25, 1978, and drawn to Judge Mazzone. The plaintiff on the same day moved for a temporary restraining order preventing the letting of contracts and the actual construction of the extension of the MBTA Red Line from Harvard Square to Alewife Brook Parkway. Judge Mazzone denied this motion. On April 5, 1979, plaintiffs moved for a preliminary injunction, and on the following day Judge Mazzone referred the case to Magistrate Cohen.Hearings were held by the Magistrate on May 4, 1979. The case was submitted on affidavits only, and extensive argumentation by counsel, which was preserved on tape cassettes. On May 17, 1979, Judge Mazzone recused himself because of the involvement of a former associate and the case was redrawn to Judge Nelson. On June 14, 1979, Magistrate Cohen filed a comprehensive report, recommending that the motion for a preliminary injunction be denied. On June 25, the plaintiffs filed their objections, and on July 6 the defendant Locke filed a motion to adopt the Magistrate's recommendations.

By order dated January 11, 1980, Judge Nelson recused himself "upon the belief that there existed a clear potential for the appearance of a conflict of interest." In his supporting memorandum he stated that he was under the impression that he had recused himself when the case was first brought to his attention. No action was taken on the Magistrate's report up to the time that the matter was redrawn to me.

I detail this history because it compounds the problem that [10 ELR 20315] exists whenever environmental concerns are raised about a project that is well underway. A course of action has been adopted and followed. Considerable expenditures have been made, and additional costs will be incurred as the result of court imposed delays. While this case involves an unusual lapse in the judicial process, even the routine reference of a highly contested complicated case to a magistrate can exacerbate the time factor, particularly where ultimate judicial review of the magistrate's report will take only slightly less time than the hearing of the case in the first instance. The required balancing of equities becomes measurably more difficult with each passingday. Cf. Essex Cty. Preservation Ass'n v. Campbell, 536 F.2d 956, 962 [6 ELR 20577] (1st Cir. 1976).

B. Scope of Review

The scope of this court's review of agency decisions under NEPA is very narrow, particularly where an environmental impact statement (EIS) has in fact been filed. The theory of NEPA is that before an action is taken, the responsible agency must consider the impact of this action on the environment and consider practical alternatives with an eye to the minimization of adverse impact on the environment. Once the responsible agency has developed the minimum level of data, and given it fair consideration, it has satisfied the requirements of the law. It is for the agency then to strike the balance between the projected benefit of the proposed project and its environmental cost, not the court. The court's function is only to insure that the responsible agencies have taken a "hard look" at relevant environmental factors. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532] (1976). The court cannot consider arguments addressed to the wisdom of the agency decision if the procedural requirements of NEPA have been complied with.

C. General Objections to the Report

The plaintiffs state two general objections to the Magistrate's report. The first is that in the preamble to the report the Magistrate expresses a clear preference for mass transit over individual automobile commuting. I have accordingly made an independent review of all the material submitted to the Magistrate and of the tapes of the hearing.

The second general objection is that the Magistrate unreasonably shifted the burden of conducting an environmental study to the plaintiffs by requiring that they be specific in describing the shortcomings of the EIS prepared by the defendants and in stating the reasons why a supplemental EIS is required. The plaintiffs' characterization is wrong. An environmental study was made by the defendants and is embodied in three fat volumes, replete with tables and graphs. There is at least some presumption in favor of the sufficiency of the study and of the defendants' judgments thereon, even in an environmental case. The Magistrate in effect has ruled, I think correctly, that the plaintiffs have the burden of offering firm evidence to overcome that presumption. Monroe County Conservation Council v. Adams, 566 F.2d 419, 422 [8 ELR 20077] (2d Cir. 1977), cert. denied, 435 U.S. 1006 (1978).

D. Particular Objections

1. Discussion of Garfield Street construction shaft, Russell Field equipment storage and sulphuric acid contamination of sludge at W.R. Grace & Co. site

In my opinion the Magistrate correctly analyzed and resolved the issues raised by the change of location of the tunnelling excavation from Porter Square to Garfield Street, the use of Russell Field and the problem raised by contaminated sludge in the area of the proposed Alewife Station.

The controlling rules of law are well stated by Judge Frankel in East 63rd Street Association v. Coleman, 414 F. Supp. 1318 [7 ELR 20459] (S.D.N.Y. 1976). An EIS is prepared considerably in advance of construction, and is not required to do more than address the general environmental problems associated with the overall construction. The change from Porter Square to Garfield Street for the excavation site creates environmental problems which were within the general predictive scope of the EIS. The acidic sludge is a prior hazard to the environment. There is no evidence in the case that removal of some of it will present such an additional hazard in the context of the whole development as to require a supplemental EIS. I agree with the Magistrate that the plaintiffs are not likely to prevail on the merits of these claims.

2. Termination of the line at Alewife Brook rather than Arlington Heights, location of Alewife Station, coordination with highway development and consideration of effect on park land

The EIS assumes as a first alternative the extension of the line to Arlington Heights. As among the proposed alternate termini of Route 128, Arlington Heights, and Alewife Brook, the data reproduced in the EIS supports a conclusion that Alewife Brook is the least desirable in terms of traffic congestion and other adverse environmental effects.

On September 30, the administrator of the Urban Mass Transit Administration (UMTA), which provides the federal funds, determined to finance the project only as far as Alewife Brook. This was a discretionary judgment by the administrator concerning the extent of commitment of federal funds. This was a cost/benefit decision not an environmental one, and is not subject to review by this court under the Administrative Procedure Act except on the grounds of abuse of discretion. 5 U.S.C. § 706. Plaintiffs make no showing of abuse of discretion with respect to that decision.¹

Once that funding restriction was imposed, the defendants' alternatives were effectively reduced to two: (1) extend the line to Alewife Brook pending further extension at an indefinite time in the future and (2) scrap the whole project until the extension could be completed at least to Arlington Heights. The defendants chose alternative (1).

Plaintiffs assert that this was the wrong decision and should be set aside, or at least its execution delayed pending a supplemental EIS. NEPA does not transfer the decision making process from the agency to the courts, and the court may not substitute its judgment for that of the responsible agency. The decision to build only so far as Alewife Brook may be wise or unwise, but this court's sole jurisdiction is to consider whether it was made after a "'hard look' at environmental consequences . . . ." Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532] (1976).

I agree with plaintiffs that the change from an Arlington Heights terminus to an Alewife Brook terminus is the type of changed circumstance which would require a supplemental EIS if the environmental impact of the change had not previously been considered. Essex Cty. Preservation Ass'n v. Campbell, 536 F.2d 956 [6 ELR 20577] (1st Cir. 1976). Examination of Section VI of the EIS reveals extensive discussion of the environmental impact of using Alewife Brook as the terminus of the line. The defendants had adequate information to make the binary choice of build or not build. I agree with the Magistrate that plaintiffs are not likely to prevail on the merits on this ground and are therefore not entitled to a preliminary injunction.

Much of the same observations must be made about the interrelation of the highway changes at Route 2 and Alewife Brook Parkway. They clearly should be considered in connection with the Alewife Station as plaintiffs allege, and indeed they are comprehensively described in Appendix J to the EIS, consisting of 78 pages. Plaintiffs claim more, however; namely, that a comprehensive EIS be prepared for the two projects because of their synergistic effect on the Alewife Brook area. There are two problems with this position. The first is that it was not clear at the time of the EIS whether the highway work would ever be done, and that question has not yet been resolved. The second is that the overlap of rapid transit and highway at Alewife Brook is only one element of the Red Line Extension. An EIS that attempted to incorporate every aspect of every interface between the contemplated project and every other would turn the environmental impact inquiry into an endless chain reaction. The defendants' decision to treat the Red Line Extension as a discrete environmental inquiry is rational, and in my opinion in conformity with NEPA.

The EIS is equally complete in its treatment of the park land at Alewife Brook (so-called section 4(b) land) and I have difficulty in understanding plaintiffs' position that the EIS is insufficient in this respect.

[10 ELR 20316]

Plaintiffs suggest that a supplemental EIS might result in a relocation or redesign of the Alewife Station because of its selection as the terminus of the line, at least for the time being. In terms of station location, however, the change in terminus is not terribly significant, (1) because the location was chosen with reference to many other factors and (2) because the defendants must take into account the alignment with Arlington Heights because the line may sometime be extended as originally designed.

3. Blasting the Tunnel between Harvard Square and Porter Square at depth of 80 feet

At the time that the EIS was prepared, the defendants contemplated that the Harvard Square-Porter Square Tunnel would be constructed 30 feet below the ground primarily by the use of a multi-face Tunnel Boring Machine or "mole." The subsurface at 30 feet is mixed hard and soft, gravel, clay and some rock. As the tunnel approached Porter Square, it descended into bedrock. The Porter Square Station was to be constructed by "mining methods," which includes blasting. EIS, p. IV-1. It is clear from the defendants' public relations efforts prior to the publication of the EIS that the tunnel was to be constructed primarily by the Tunnel Boring Machine.

When the contract bids were received, however, the low bidder proposed to construct the tunnel entirely by blasting through bedrock at the 80-foot level. This method was adopted by the defendants.

It is not at all clear that the environmental impact of this construction alternative was ever considered. Indeed, there is internal evidence in the EIS that this alternative had been rejected prior to the preparation of the EIS and consequently was never considered. EIS, p. II-91. On the other hand on the same page, there is a reference to construction through bedrock and it is stated that "the exact tunneling method must be very flexible to accommodate these extremely variable conditions."

In the EIS at p. IV-6, the following statement appears:

Continuing to the North towards Porter Square from the rock/soft ground interface, there would be short segments of hand-mined tunnels to a point where the tunnels are under 10' of sound rock cover. From this point, the tunnels will be bored by Tunnel Boring Machine (TBM) or conventional methods through the Garfield Street Vent Shaft to a construction shaft just south of the Porter Square Station.

Defendants point to the reference to conventional methods as supporting the proposition that the effects of blasting were adequately studied and reported in the EIS. It is apparent to me, however, that the Tunnel Boring Machine was to be the principal means of making the tunnel, with blasting as a possible adjunct. In the present posture of the case, the Tunnel Boring Machine has been completely abandoned, and the whole tunnel is to be cut by blasting. I am not satisfied that the environmental impact of this change has been studied or that it is within the general parameters of the adverse consequences of construction which were considered by the defendants when the project was approved.

The discrepancy between the EIS and the actual construction method, however, does not necessarily mean that the project should be enjoined pending the development of a supplemental EIS. Obviously, construction methods per se are of no particular consequence. It is their environmental impact that is of consequence. If it can be established that the impact of blasting is within noise and vibration limits established by the EIS and approved by the defendants, it may be assumed that the change in construction method would not have altered the decision to proceed with the project.

The daytime air-borne noise parameters are established in Appendix D, Table 13-2, as follows: the noise will not exceed 75 dBA more than 10% of the time in residences, schools, churches, libraries, park and other noise-sensitive areas; and not exceed 85 dBA more than 10% of the time in public ways and industrial and commercial areas. The nighttime level is 10 dBA less. The indoor level of ground-borne noise is approximately 25 dBA less. Table 13-4. Permissible vibration levels are shown in Table 13-5.

In addition to the noise level criteria, impact noise (noise of duration less than one second) shall not exceed a peak sound pressure level of 140 dB.

Neither counsel nor the Magistrate have addressed the question of compliance with these criteria. Where there is evidence of activity not contemplated by the EIS, even in view of the statements in East 63rd Street Association v. Coleman, 414 F. Supp. 1318 [7 ELR 20459] (S.D.N.Y. 1976), the burden is on the defendants to establish compliance with the general criteria upon which approval of the project was based. A further hearing is required. Accordingly, counsel will confer with me next Wednesday, February 20 at 2 p.m. to consider scheduling and to consider further whether a temporary restraining order would be appropriate to restrain further blasting until the question of such compliance is resolved.

1. I have not considered plaintiffs' standing under the Administrative Procedure Act. The foregoing does not imply a decision that the plaintiffs would in fact have had standing under that Act.