1 20 2 https://d1y502jg6fpugt.cloudfront.net/44124/archive/files/9df890387e7536f49c4d0ec1cdf5ebef.pdf?Expires=1792627200&Signature=QluCsE4r66pe6oS8u-ueApwSLed-usqH5FsARQhQVZOWiQTItybSS85SvTWO-UqL4ait-XWn%7EiYDXSaHXmJQdGRPoOqmn0rdKx3nJ41xiFSqtmYDtpKvK3Lit7pFvpSdM5cAyITfJbJ3qlZIcJq8A07zPYoOgUbQHOskv2ybmEp0pQ2xNoXQVcGV4b95HqtZvRMJt1bQOIyn7Ezn2xbk4RiHGhtZfRK15NLwClZwN6Rd%7E5JeZKOeNdNsLkcj1HHHuwNYiQgbB-Ha%7EXJYxRPLBqofI48bXHoVXIpQejcjLG8H7fudHdjSl3mMjDBgd5cCYBKK1aHjoEmE3N6sgkcLzg__&Key-Pair-Id=K6UGZS9ZTDSZM 75fc90f7e969a7cdbee611a27f4aa0fc PDF Text Text I- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE MOVE~mNT AGAINST DESTRUCTION; SOUTHWEST COr·lMUNITY ORGANIZATION; MARY BENOWSKYJ ; HELEN D. KLOCHKO; lHLLIAM J. KREINEE; MARY E . KREINEE; KATHERINE PETERSON; ~!ARTHA A. RILEY; LEAH SHIFFLETT; IDA SMITH; REV . H. B. TURNER; EVELINE WHITMORE; THERSA WITHORE RICHARD H. TRAINOR, CHIEF, Interstate Division, Baltimore City; MAYOR AND CITY COUNCIL OF BALTIMORE; CLAUDE BRINEGAR , Secretary, U.S . Department of Transportation 1 Filed: March 1 1 I I I X I v. ! ~!ARYLAND CIVIL ACTION NO. M-74-666 I I I I , 1975 John C . Armor (Baltimore, Maryland) , for plaintiffs. Randy H. Lee, Assistant Attorney General (Baltimore , Maryland), and James R. Avnet , Special Attorney, Interstate Division for Baltimore City (Baltimore , Maryland), for defendant Richard H. Trainor, Chiet , Interstate D~v~s~on, Baltimore C~ty . 1 I I ! Lawrence F. Rodowsky (Baltimore, Maryland), for defendant Mayor and City Council of Baltimore . Mrs. J ean G. Rogers , Assistant Regional Counsel , Federa l Highway Administration, Region 3 (Baltimore, Maryland), for defendant Cla ude Brinegar , Secretary , U. S . Depa rtment of " Transportation. Mil l er , Dis trict Judge ,! OPINIQN i i This is the latest battle i n the war currently being waged in the Baltimore area over the ultimate composition of its transportation system . The comp l aint was filed by t wo organizations, dedicated to preventin" the construction of all or portions of the g (1 so - ca l led "3 - A System" of Fede ral-Aid highways in Balt i more City , (1) For a complet e des c ription of the development of the "3-A . Sys tem, " see Movemen t A ainst Destruction v . Vol e , 361 F. Supp. 1360 , 1366-1379 .., . . • D. Md . 973) , af 500 F . 2 29 4th Cir. 1974). �." and by 11 individual citizens , residents and taxpayers of Ba ltimore City. The complaint was originally filed on June 26, 1974, against Richard H. Trainor, Chief, Interstate Division for Baltimore (2 ) City, and the Hayer and City Council of Baltimore, seeking a preliminary and permanent injunction against the opening of bids for construction work on a portion of I-95 from Caton Avenue to (3) Russell Street and other relief. Since the bids on the Segment were scheduled to be opened on July 24, 1974, the court, at a conference with couns e l, determined to bifurcate the issues presented by the complaint in order to have presented to it, with a minimum of required testimony/the facts and legal arguments on which the plaintiffs contended they were entitled to a preliminary injunction. A hearing was held on those issues and an opinion was announced thereon by the court on Ju ly 23; 1974, denying the re• quested preliminary injunction. Thereaf ter, th e complaint was amended to add Claude Brinegar, tnen Secretary of the U.S . Department of Transportation (USDo T), as i j a party defendant. In view of the public significance of the issues presented, an expedited schedule was established for preparation for trial on November 5, 1 974 . The court heard testimony and re- (4) ceived evidence for two weeks and h eard final argument on De- cember 20, 1974. I , ,' In general, th e plaintiffs have contended in this proceeding I that an injunction should be issue4 to prevent the construction of the Segment because (1) the Envir onrnental lmpact Statement (EIS) for the Segment was unlawfully approved, (2) th e construc tion of (2) The Interstate Division for Baltimore City (lOBe) is a divisio. of the Maryland Sta te Highway Administration ( SHA ) and was created , by agreeme nt between SHA and the City , t o manag e the con s truction and comple tion of th e Inter state Sy s t em of highways in Balt imore. MAD v. Vo lpe, supra , at 1 372. (3) Hereafter in t his opinion t he section of 1-95 from Caton Avenue to Husse ll stree t wil l l;e ref e r red to as t he "S egment ." (4) Approxima tely 215 exh ib its were received in ev idence . Those e.xhibits, together \,d th af fidavi ts and appr oximately . 1,200 pages 2 .. �L. the Segment is inconsistent with the approved State Implementation Plan (SIP) for attainment and maintenance of the air quality standards for the Baltimore air quality region, and (3) recertifi( 5) for the Baltimore area was not cation of the "3-C Process" made in accordance with applicable law . Background The major thrust of th e plaintiffs' contentions in this case is that a transportation systems study known as the Baltimore Regional Environmental Impact study ("BREIS") is so technically ~nadequate . as to be legally incapable of constituting the basis for reasoned decision making on the part of the responsible federal officials. BREIS was originally intended to address the potential regional air pollution impact which the Environmental Protection Agency (EPA) had identified as being a consequence of various transportation system alternatives in the Baltimore metropolitan area . It grew out of a "consensus" in September , 1972 , between representa ti ves of EPA and of the Federal Highway Administration (6 ) (FHWA) in which it was agreed that no further PS&E approvals would be granted by FHWA for part of the "3-A Highway System" , (4) (continued) .of testimony, have been considered by the court . posed findings of fact and submitted briefs . Both sides pro- (5) Und e r 23 u.s.c. S 134(a) the Secretary of USDoT, or his d e legate , is required to certify that highway programs are based on "a continuing, comprehensive transportation planning process carried on cooperatively by State and local communities.. n This r equired planning process is known colloquially as the n3-C Process." ( 6 ) "PS&E approval" is required to be given by the Secretary of US DoT· or his deleg a te of "surveys, plans, specifications , and es timates f or each proposed highway pr oject included in an approv e program . . . " a s o ne step in the sta tutory and regulatory scheme of the Fede ral-Air Highway Act in orde r that a highway may qualif y f o r 90 % fe deral fund s as part of th e "Interstate System." 23 U.s.C . § 101 et seq . , particularly 23 U.S.C. S l06(a). See MAD v. 3 -, �, i L. • • (7) and circulated. The study which grew out of the original consensus was expanded to supply general information of a regional nature to EPA, FHWA, and other state and federal agencies. It (8) developed into a future planning tool for RPC and other state agenci es . Alan M. Voorhees Associates (AMV), a nationally known firm in the field of transportation planning and analysis, was engaged as the consultant to supervise the study. Data which were utilized in th e study came from many sources, including RPC, Maryland Do~, more City. BAQC, EPA, FHWA , and operating departments of Balti- The initial AMV consulting work was authorized on February 5, 1973 , for a maximum payment of $509 , 324. 27, 1973, an additional $111,574 had been authorized. By December The drafts of th e seven basic technical reports comprising the BREIS study and the initial findings of the study were completed shortly prior to December 13, 1973. Th e BREIS study purports to be an analysis of the environmenta consequences of different transportation system alternatives for the region , particularly as the alternatives relate to socio(9) economic impacts , VMT impacts , air quality impacts , water quality impacts, noise impacts, and e nvironme ntally . sensitive areas. The alt erna tive s considered and the target years under study may be summarized as follows: (6) (continue d) Volpe, supra , 1 367 -1368, 13 80-138 3 for a discu ss ion and exposition of th e procedur es · under the Federal-Aid Highwa y Program. (7) Fo r the comple te t ex t of the "consensus," 1377, fn. 37 . ~ 361 F . 2d at (8) Regiona l · Pla nning Council isa state agency serving the Baltimore metropo li tan area. (9) VI-1'r is an ab"::- reviation for "vehic le of mea s uring th e us e of motor vehicl es . miles trave led," a means 4 -, �• L .' HIGHWAY ASSUMPTION RAPID TRANSIT ASSUMPTION YEAR 3-A Interstate Other Highways 1980 Complete Existing and Programmed Phase I 1980 Partial Existing and Programmed Phase I 1980 Existing and under construction Existing and Phase I 1995 Complete GDP GDP 1995 Existing and under GDP GDP Existing and under GDP Programmed (10) construction 1995 COmplete construction 1995 Existing and under construction Existing and under construction GDP The results of the initial study were Ieported in seven i I printed volumes, with a number of appendices. As a gross generali- zation, it may be said that BREIS concluded that there are economic 1 benefits in the short term and long term from the construction of the 3-A highway system and of the other highway and rapid transit I ! I improvements contemplated by the GOP. by 1980 and 1995 projected pollutant levels in all categories of pollutants will differ only slightly among the transportation • I . ~ It further concluded that alternatives . .i The basic seven- volume BREIS study has been supplemented by additional studies. A draft of BREIS Tech. Memo. No.8, dealing with an analysis of energy consumption, was prepared in August of 1974. In late December, 1973, a study was authorized for assessing \ the interrelationship with BREIS of transportation control strategies promulgated by EPA on December 12, 1973, as a part of the (10) GOP refers to th e General De velopme nt Plan for the Baltimore region, adopted on Dece mber 15, 1972, by the RPC following public hearings . Th e GOP includes th e highway c o nfiguratio n knO\vn as the 113 _A System" within Baltimore City. It also includes a six-leg rapid rail tran s it syste m. 5 .\ .,, . • I �L_ .. (11) SIP . On September 18 , 1974, AMY was awarded a contract to perform a traffic management study for the 3-A System in Baltimore. On May 24, 1974, PS&E approval was given by FHWA for con- struction contracts relating to three portions of the Segment. On July 3, 1974 , PS&E approval was given by FHWA for construction contracts relating to the fourth portion of the disputed Segment . A list of the abbreviations used in this opinion appears as Appendix 6 . This opinion will constitute the court's findings of fact and conclusions of law. Scope of Review There are three agency actions challenged in this proceeding. Fir st is the determination by the Secretary, USDoT to approve the I , i , final EIS , as supplemented. This is a responsibility placed upon I the Regional Administrator of FHWA by PPM 90 - 1, 16j (12) and upon the Secretary , USDoT, acting through the Assistant Secretary for I Environment, Safety and Consumer Affairs , as requi r ed by US DoT (13 ) Order 5610.1A , ,8t,e) . The second agency action involved herein is the determination by the Regional Administrator, FHWA that the Segment was consi s tent with the SIP as required by 23 U.S.C. § 109 ( j) and 23 C.F.R . · S 770. - 204 (b ) (3). The third agency action chal l enged herein is the recertifica- , tion of the "3-C Process" for Metropolitan Baltimore under 23 u . s .C . § l34 (a ) by the FHWA Regional Administrator as the delegate of t he Secretary, USDoT. A thresho l d question is whether the petitioners are entitled to any judicial rev i ew . The actions of officials of USDoT are subject to judicial review exce~t where there is a statutory pro- hibition of review or where "agency action i s committed to agency (11 ) 38 F.R. 34247 et seq. (Dec. 1 2 , 1973) • ( 12) 23 C. F. R. 1, Appendix A, 37 F . R. 21809 (October 14 , 1 972) . (13) 36 F. R. 23679 (October 4 , 1971) . 6 ....... - . .' , . -..-" • . -.-.. . .. - ...... ..---- , . - - . ~ ' .. .- - •.. - -- �" L. .. discretion by law." 401 U.S. 402 at 410 Citizens to Preserve Overton Park v. Volpe, (197l~; 5 U.S.C. S 701. . There is no indica- ticn that Congress sought to prohibit judi cial review of any of the questioned actions nor do they fall within the narrow exception "committed to agency discretion." Citizens to Preserve OVerton Park v. Volpe, supra. In reviewing the challenged actions, this court must engage in a substantial inquiry. The court must first determine whether the government officials whose actions are challenged followed the necessary procedural requirements in reaching and implementi'119 their challenged decisions. Citizens to Preserve Overton Park v. Volpe , supra, 417; 5 U.S.C. S 706(2) (D). Secondly, the court must determine whether the governmental officials whose . actions are challenged acted within the scope of their authority, that is, were their decisions within the range of choices they could I I legally make, did they properly construe the limits of their I authority, and was there evidence before them sufficient to render 1 ! it possible for them to have reasonably believed the actions they ultimately took were within the limits of their authority? ~ens § Citi - to Preserve Overton Park v. Volpe, supra, 415-416; 5 U.S . C. 706(2) (C). Lastly, the court must determine w~ether the decisions of the governmental officials involved were "arbitrary, capricious, or an abuse of discretion, ,. It that is, were the challenged decisions based upon a good faith consideration of the relevant factors and was there no clear error of judgment? Citizens to Preserve Overton Park v . Volpe , supra , at 416; 5 U.S.C. S 706(2) (A). Whil e the revi e ving court is not permitted to substitute its judgment for that of the . ag e ncy, the ultimate standard of review being a narrow one , Overton , s upra , at 416 , th e reviewing court has an obligation to review substantively agency decisions on the merits to d e termine " whether th e re has been a clear error of judgment." Conserva tion Co u nc il of No rth Carol ina v. Froehlke, 473 F.2d 664 at 66 5 (4th Cir. 1973). See a l so Appa lacian Power Co. v. Environ- men ta l Protect io n Agency , 477 F.2d 495 , 506-507 (4th Cir. 1973). 7 • -'-. \ ' - .. r , �,. I l. . . Discussion Validity of Approval of EIS I As previously noted, the first inquiry in determining the validity of agency action relating to the approval of the final EIS for 1-95 from caton Avenue to Russell Street (DX 96) is whether the proper procedures were followed. Since the plaintiffs (14) have not challenged the validity of the "4"( f) II determination that there is no feasible or prudent alternative to use for construction of ' the Segment part of the park land comprising Carrol Park, this aspect of the combined EIS and "4(£)" statement will not be considered h erein. The . National Environmental Protection Act (NEPA), 42 U.S.C. S 4332(2) (C) requires an EIS to be prepared for all " . . major Federal actions significantly affecting the quality of the human environrnent~ are § " th~ . . ." Among the areas to be covered by the EIS envirorunental impact of the proposed action" (42 U.S.C. 4332(2) (c) (i}) and the "alternatives to the proposed action" (42 U.S.C. S 4332 (2)(C)(iii»). Shortly after the adoption of NEPA, Congress passed the Clean Air Act of 1970, (P .L. 91-604, 84 Stat. 167fi) . . A portion of that Act , now codified as 42 U.S.C. § l857h-7, requires the EPA Adrninistrator to r eview and comment in writing upon the environmental impact of any construction project for which an EIS is required und e r NEPA . (P.L. In addition , the Federal-Aid Highway Act of 1970 91-605 , 84 stat. 1713) S 109(h) and S 109(j» was (now codified in part as 23 U.S.C. e~acted which required that the Secre t a ry of USDo T develop and promulgate guidel ines, in consultation with the Administrator of the EPA, "to assure that highways cons tructed pursuant to this Title are consistent with any approved plan fo r the implementa tion of any ambient air quality standard for any a ir qua l it y control region des ignated pursuant to the Clean Air Ac t as amend e d." (14) Re quired b y 49 U. S .C. S 1653(f), 23 U.S.C. S 138 and 16 U.S.C . S 4 70f . 8 �, • ,-. , Under NEPA, e ac h .agency of the federal government is required to: "ide ntify and d evelop methods and procedures , in consultation with the Counci- on Environmental l Quality established by s Ubchapter II of thi s chapter, which will ensure that presently unquantified environmental ame niti es and values may b e given appropriate considerati on in 'deCisionmaking{iS~ng with economic and t echnicr l considerations ." Furthermore , NEPA provides t ha t: "Al l agencies of the Fede ral Government shall review the ir present sta tutory autho rity, administra tive regul atio n s , and current policies and procedures for the purpose of determin i n g whether the re ar e any de fici encies or inconsistencies therein which prohibit full cumpliance with th e purposes and provisions of • . . [NEPA ] and shall propose • . . such measures as may be necessa ry to bring their authority and policies into conformity with the intentj purposes , and procedures set fo rth in this chapter." (16 , Based upo n its mand a te under NEPA and in spec ific respon se to the (17) (18) directive s o f Executive Order 11514, t he CEQ published 1 guidelines for fed era l agencies in th e preparation of environmental i impact stateme nts . These guide lines~c ons istent with §§ 4332(2) (B) and 4333, placed th e primary respo nsibility upon each individual federa l agency to prepare i ts own NEPA procedures. lines , ~3(a), 36 F . R. 4724 (CEQ Guide - (1971 ». As a resu lt, USDoT , in 1971, prepa red its .guidelines relating to th e process ing with in i ts department of a final EIS , USDoT Order (1 9 ) 5610.lA . Paragraph 8.1. (l) r equir es that a fina l EIS, together > with all c omme nt s which were re ceived from the circulation of the draft EIS , be submi tted to th e Office of Environment and Urban ( 20) Assis tan6e (TEU} f or USDoT f or concurr e nce. Paragraph 8 £ (2) (15 ) 4 2 U. S.C . S 4 3 32 (2) (B) . ( 16) 42 U. S . C. S 4 333 . ( 17) 35 F. R . (1 B) Coun sel on Enviro nme ntal Quality. (1 9 ) See fc.o tnote 13 . 4 247 (Ma rch 4 , 1970) .• (20) By USDo T N.llO.37 , the f un ctions o f TEU were transf erred to '.:'ES , Assista nt Secretary f or Environment , Sa f ety and Con sumer A£:a ir s nn February 5 , 1 97 3 . 9 . .. , .'. \ ,. - . �;. l ·. provides that the final EIS will be considered concurred in by TEU unless notification to the contrary is sent out by TEU within two weeks. Upon concurrence, to send the final EIS to CEQ . Under ~ 8m provides that TEU is ~ an, no administrative action is to be taken sooner than 30 days after the final EIS has been sent to CEQ and has been made available to the public. (21) FHWA , on October 14, 1972, promulgated PPM 90-1 as its respo~se CEQ to the mandates of NEPA, Executive Order 11514, and the Guidelin~s that FHWA produce its own procedures for the (22) preparation of environmental impact statements . Under ~ 6j of PPM 90-1, the Regional Administrator of FHWA is given the responsibility to act for FHWA in review and adoption of an EI5. Under ~ 6p(2), a supplemental statement to an EIS is to be pro - cessed in the same mann e r as a new EI5. I I In this case , the proposed final EIS on the disputed segment I of 1-95 was sent by the Division Office of FHWA to the Regional I Administrator of FHWA on January 28, 1972. I Over a year later, on April 13, 1973, the Regional Administrator of FHWA (Region 3) approve d the final EI5 andforwardedit to the Washington headquarters of FHWA. 1 On April 16, 1973, the Washington headquarters forwarded the final EIS to USDo T. 1 On September 19, 1973, TE5 appr o ved the combination final EIS and. n:4(f)" statement. There- aft er it was forwarded to the General Counsel's office of U5DoT for review. On November 16, 1973, Interim Air Quality Guidelines (23 ( 23) C.F.R. 770 , 38 F . R . 31677) were adopted by FHWA to comply with the mandate of the Federa l Aid Highway Act of 1970. In S 770 . - 204(b) (3) of those guidelines, provisions are made for the handling (21) See footnote 12. ( 22) PPl1-90-1 a lso deals with FHliA procedures for implementing 4 9 U. S . C. § 1653(f), 1 6 U. S . C. § 470f, 23 U.S.C. S 138, and 42 U.s. C: § 185 7h -7. ( 23) Unless the con·t ext otherwise requires, allreference5n erei n t o 23 C.F .R. § 770.200 et seq . re fer to the Interim Air Quality Guidel ines , rather tha n to the Final Air Quality Guid e lines , 39 F.R. 444U (12/24/74) , ado pted effective Dec. 26, 1974. 10 .., " ." " �,. I • L of highway projects where , as is the case here , a final EIS had been approved by t~e Regional Administrator of FHWA before October 15, 1973 and grading and drainage authorization was requested after January 1, 1974 . Subsection (i) of that section of the Interim Air Quality Guidelines requires that the FHWA Division Engineer, in those circumstances , consult with the state highway agency to r eview the final EIS to determine whether or not the discussion of air qual ity in the final EIS is adequate . If, u pon such review, it is determined that additional information or analysis i s necessary, subsection (ii) of the Interim Air Quality Guidelines provides: " . a supplemental EIS shall be prepared and distributed for rp.view and comment to appropriate l ocal , State and Federal agencies wi th ex~ertise in air quality. Thirty days shall be a~lowe for comment by interested agencies." (Emphasis supplied). Subsection (iii) of the Interim Air Quality Guidelines fUrther 1 ! provides: "Comments received shall be processed following the procedures outlined in PPM 90-1. Adoption of the supplement to the final EIS by the Regional Federa l Highway Administrator shall be evidence of his positive finding on the consistency of the highway proposal with the State Implementation Plan." (Emphasis supplied) . 1 While the combination final EIS and "4(f)" statement was under review in the General Counsel's office of USDoT and as a r esult of questions raised there , supplemental material to the final EIS was sent to US DoT to be formally included in the final document. Among the supplemental materials furnished was a sum- ma r y of BREIS (Tech. Memo . No.7) which had been previously circulated to EPA and to BAQC as well as to other interested agencies. On March 29 , 1974, the General Counsel's office of USDoT a pproved th e combinatio n final EIS and " 4 (F) statement. In the meantime, the Division Engi neer of FHWA, in consultat ion with IDBC, Maryl a nd DoT , Re giona l FHlvA, and USDoT, upon review o f the final EIS which h a d bee n pre par ed in large part over two year s prior to that time , det e rmined that addi tional information 11 '. , �L was necessary in the EIS discussion of air qua lity in order to comp l y with § 770.204(b) ( 3) of the Interim Air Quality Guidelines. AMV was engaged on March 7, 19 74 , to prepare an analysis of the (24) effects of th e subject segment "of 1-9 5 upon t he leve l of CO (25) (26) (27) in the ambient ,a i r. The He, POX, and N0 air quality 2 studies . had previous ly been performed by AMV as a part of the BREIS study. On April 22 , 1974, the CO microscal e a n a lys is of AMV as well as Tech. Memo No. 3 of BREIS, containing the me soscale (28) analysis of He , POX, and N0 , was 2 ment s to th e final Ers sent to EPA and BAQC for r eview and comment as supple- pursuant to the Int e rim Air Quality Guidelines, 23 C.F.R. S 770.204 (b) (3) (ii) . BAQC and EPA h ad had Tech . Memo. No. 3 in their possession since appr oximate ly De c ember 13, 197 3 , as we ll as th e Tech . Memos . of BREIS upon which Tech. Memo No. 3 was in part based since .at j least that date. j EPA had previou s ly comm e nted to IDBe and FHWA upon Tech . Memo. No. i 1 3. I On J an uary 7, 1974, and February 5, 1974, the On January 1 5 , 1974, March 27, 1974, and April 22, 1974, BAQC had made comments to IDBe and FHWA in reference to Tech. Memo No . , 3 . . As the r esult of one of th e comments of BAQC on April 22, 197 4 , concerning Tech. Hemo.No. 3 , a chang e was . made i n Tech. Memo. No. 3 of which EPA was formally n o tified by letter dated ( 29) May 7, 1974. On F ebr uary 1 9 , 1974 ~ th e findings of the BREIS study were formally presented at a mee ting in Washington, D.C., attended by r e presentatives of USDoT, by Vlashington, Region 3 and Maryland Division repr esenta tiv es o f FHWA, by repr esentatives of the Washi ngt on Of fic e and the Region 3 Office of EPA, a nd by repre sentatives of BAQC . (24) Carbon monoxide. ( 25) Hydrocarbons. ( 26) Photochemical oxidants (27 ) Nitrogen dioxide. (2 8) Bureau of Ai r Quality Control , a state agency. (2 9 ) See pp. 7 and 8 , slip opinion MAD v. Traino r No . 1-1- 74-66 6) cour t I s op inion da ted July 23, 1974. (Civil Action 12 ... • 1 ·· . .. ~. . . . \ T '. �·. With this background, BAQC and EPA , the applicable agencies with expertise in air quality, were given 30 days to comment upon the air quality supplement to the final ElS . 23 C.F.R. S 770.204- On May 22, 1974, EPA , by telegram , stated that it faun (b) (3) (ii). the Segment to be inconsistent with the SIP and followed up its telegram with detailed reasons on June 5, 1974. BAQC had indi- cated on J.lay 23, 1974, that it would make no further comments on 1-95 in reference to air quality in addition to those comments which it ha~ already made, but on June 4, 1974, further written comments were made by BAQC on the air quality assessment of the Segment. In the meantime Joseph Stackley, on behalf of the Divison Engineer of FHWA, determined the subject segment of 1-95 to be consistent with the SIP on May 23, 1974. On June 10, 1974, a meeting took place at lOBC between representatives of IOBC , of AMV, and the Region 3 and Division I offices of FHWA concerning the EPA comments of June 5, 1974. Based upon this meeting, the Divis ion Engineer of FHWA reaffirmed the consistency determination which had previously been made by 1 the division level. EPA and BAQC were so notified on June 11, 1974, and were furnished a copy of SHA's responses to the EPA comments of June 5, 1974 . Pursuant to a request from the Regional Administrator of EPA, a meeting took place on June 18, 1974, with re~resentatives of the Regiona l and Division offices of FHWA, and with representatives of lDBC, Maryland DoT, BAQC, and Baltimore City. As a result of that meeting, a memorandum of under- standing was prepared dated June 28, 1974. On August 1, 1974, lDBC responded to BAQC's comments of June 4, 1974, relative to the Air Quality Suppl ement to the ElS and a copy of the response was sent to the Regional Administrator of FHWA as well as to EPA (PX 225 ). On August 9, 1 974 , the Regional Administrator of the FHWA approved the suppl emental EIS relating to air quality and expressl 13 �. , , .. declared that the Segment is consistent with th e SIP. The reasons for the consistency determination by the Regional Administrator of FHWA are contained in a six-page statement (PX 228) attached to the l etter transmitting his approval of the supplemental EIS ; to the Office of Environmental Policy of FHWA pursuant to t 6j of PPM 90-1. The major procedural defect which plaintiffs allege is fatal to the approval of the final EIS, as supplemented, relates to the tim ing of it'S approval. They argue that the final EIS was approved by the Acting Secretary of US DoT on April 8, 1974, admittedlr prior to the circulation of the air quality supplement to the EIS on April 22, 197.4, a fact which, it is alleged, made th e ". circulations of the final EIS (in full) for 1-95, Caton to Russell, . . . inadequate , and therefore an inadequate (30) This argument of the basis for subsequ ent decision making." plaintiffs is premised upon PPM 90-1 and upon 23 C.F.R. §770.204(b) (3) (iii), referred to above, which requires that comments on an ai r quality supplement to an EIS, received from local, state, and federal agencies with exp~rtise in air quality, are to be processed following the procedures outlined in PPM 90-1. In considering this argument of plaintiffs, note must be taken of the fact that th e regulations and statutes involved did not require the Secretary of US DoT to approve or concur, in the EIS as such (PPM 90-1, ~ 6j; OS DoT Order 5610.1A n Bi, Bm, and 8n), but merelyrequired approval of the Regional Administrator of the FHWA and the concurrence of the Assistant Secretary for . (31) Environment , Safety and Consumer Affairs of USDoT. The final (30) ~ p. 1, plaintiffs' memorandum of law, 11/26/74. (31) Effective on November 29, 1974, procedures for review and approval of an EIS relating to a highway section have been substantiall y amended. The new procedures, however, replacing those s e t forth in PPM 90-1 , do not apply to or in any way affec t or alter decisions, approvals, or authorizations which were given by the FHWA pursuant to directives then in effect . . • • " 23 C.F.R. § 771.4(b), 39 F.R. 41B06 (December 2, 1974). Similarly, s ubstantial revisions have been made in procedures by USDoT for the revie\v and approval of an EIS rel ating to a highway section. fl • • • ':L'hes e new p rocedur es , however, replacing those contained in 14 1 \ .. '. ', ~-' ' �.. EIS was approved by the Regional Administrator of FHWA on April 13 , 1973 , and by the Assistant Secretary for Environment , Safety and Consumer Affairs of USDoT on September 19, 1973 . Because this pro ject involved th e use of parkland, however, a "4{f) " statement was combined with the final EIS, and the combined documents were , in fact; approved by the Acting Secretary of USDoT i n the exercise of the responsibility mandated by 16 U. S . C. ·and 49 U. S . C. § Order 5610.1A, " § 470f, 23 U. S . C. §138, 1653(£) under the procedures authorized by USDoT at. (b), " 9j , and 1 10. 1 Because of the fact that the EIS also served as a 114(£)" statement the combined docurnent was n o t fo~warded to CEQ , as r e quired by the applicable (32) regulations until April 17 , 1974 , subsequent to the action of approval by the Se cretary of USDoT. I , ! ·1 I j I , ! , Thus, although the Acting secretary of USDoT approved the combination final EIS and "4(f)" statement in April, 1974 , after the effective date of· the Interim Air Quality Guidelines , the final EIS itself had been approved by both the Regional Administrator of FHWA and by the Assis t ant secretary for Environment , Safety and Con sumer Affai rs by September 19, 1973 , prior to the effective date of the Interim Air Quality Guidelines , 23 C. F.R . 770 , 38 F.R. 31677 (11/16/63). The final E1 S , therefore , as distinguished from the air quality suppl eme n t to th e EIS , had received its required approvals, contrary t o plaintiffs ' argume nt, before the circulation of the air quality s uppleme nt. The c omment s of EPA and BAQC were, however, received and consid ered by the Dis trict , Divisional, and Regional ' officials of FHWA a f te r the a i r quality suppleme nt to the E1S was officially (31) c ontinued DoT Order 56l0.1A, do not a p ply to a final EIS submitted to the Off ice of th e Secretary o f US DoT for concurrence prior to Se p tember. 3 0 , 197 4 . DoT Order 5610.1B , U5.c., 39 F.R . 35241 ( Sep t ember 30 , 1 974 ). (32 ) USilcT Order 5610.111, 36 F.R . 23 679 (10/4 / 71), ~8m. 15 ' -. - .. _. . . . . .- ~ . . ----, - . �• , circulated to EPA and BAQC on April 22 , 1$74, even though the comments of both EPA and BAQC were received after the 30-day expressed deadline for comments had expired . The comments were considered at the me eting of June la, 1974, and at the meeting of June 18, 1974, and were addressed in written responses at least on Jun e 11 and August I, prior to the final consistency determination of the subject segment of 1-95 by the FHWA Regional (33) Administrator on August 9, 1974. These written responses by the District Office of FHWA, by lDBe, and by SHA were included in the supplemental EIS as required by PPM 90-1, ~ 2h. ~ 6i and Appendix E, In short , the comments were processed in accordance with PPM 90-1 as required by 23 C.F.R. § 770.204 (b) (3) (iii) of the Interim Air Quality Guidelines. , , Plaintiffs next contend that the EIS was procedurally I incompetent in its consideration of alternatives to the proposed ·1 I construction of I-95 and in its consideration of environmental impacts broader than those or. the I itself. L~~ediate vicinity of the Scgmen~ In a prior decision, MAD v . Volpe, supra, at 1385, this court said that "in making some of the decisions which amount to major federal action with respect to one or more of the roads or segments thereof in the 3-A System , the Secretary, USDoT, or his delegate, may have to consider with respect to some of the environmental impact problems, not only the environmental impact of the r oad or segment for which his immediate approval is requested, but also the total environmental impact which would result from the use of the road or segment und er consideration if and when used in connection with other segments or roads, already built or proposed to be built." As supplemented by the material furnished in connection with the r eview by USOoT's General Counsel as well as by the air quality s upplement , the final EIS contained at least enough discussion of the environmental effects of the (33) proposed segment of 1-95 as to Plaintiffs' Exhibit 228. 16 , I • ,, ' • • • �.air quality, noise, and other environmental considerations , of the microscale and mesoscal e alternatives which were cons idered, of the ';'rreversible and irretrievable canunitrnent of resources involved in the proposed action, of the economic, sociological, environmental, and other impacts of the propose d action, of the measures proposed to be taken to minimize harm and of the other subjects required to be dealt with in an EIS in order to be pro(34) cedurally correct. In Part III of this opinion a more detailed description will be given of the contents of the final EIS, as supplemented. From a strictly procedural point of view, plaintiffs have made no point of the. fact that design approval for the subject segment of 1-95 was granted by the Division Engineer of FHWA on May 21, 1974, prior to the expiration of the 30-day comment and "<l j I~ ( 35) review period of the air quality supplement to the final E1S. Furthermore, the plaintiffs have not asserted as an issue in this case the effect of the fact that the consistency determination of the Segment with the SIP was not made by the Regional Administra- I tor of FHWA until August 9, 1974, which was subsequent to the 1 , date when PS&E authorization was granted for three sections of the segment of 1-95 on May 24, 1974, and for the fourth section on July 3 , 1974. Those issues not having been raised be fore the court, no ruling is made on the question of whether or not the issuance defective . of such authorizations and approvals was procedurally Even if these design and PS&E approvals were pro- cedura11y defective, however, because of their timing, subsequent approvals of various matters relating to the construction of the Segment by th~ Regional Administrator of FHWA makes moot any technical deficiency in the absence of bad faith by the appropriate federal governmental officials. Jicari1la Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973); Citizens for Mass Tran sit (34) 42 U. S . C . S 4332 (2) (C); PPM 90-1, Appendix E; CEQ Guideline s , 40 C.F . R. S 1500.8; US DDT Order 5610.1A , ~8e -. (35) Defendants' Exhibit 198. 17 , �Against Freeways v; Erinegar, 357 F. Supp. 1269 (D.Ariz. 1973). As stated in Part III of this opinion, the court believes the appropriate federal governmental officials acted in good faith. II The next general area of inquiry relating to the approval of the final EIS, as supplemented, is the question of whether the governmental officials involved acted within the scope of their authority in approving the final EIS, as supplemented . The action of the Regional Administrator of FHWA in approv- ing the final EIS on April 13, 1973, and the concurrence of the Assistant Secretary for Environment , Safety and Consumer Affairs of US DoT on September 19 , 1973 , and the Acting Secretary of USOoT on April 8, 1974, with the Regional Administrator's prior approval of the f i nal Ers , as well as the action of the Regional Administrator of FHWA in approving the air quality supplement to the final Ers on August 9, 1974, are entitled to a presumption of regularity . at 415. Citizens to Preserve Overton Park v . Volpe, supra, No argument has been made by the plaintiffs that those officials did not act within the range of choices potentially available to them under the appropriate statutes and regulations granting them their authority and responsibility to act, nor have , the plaintiffs argued that they did not properly construe the " limits of their authority. The plaintiffs do , however, strenu- ously argue that the evidence before the appropriate officials _ was insufficient to provide a basis for a reasonable belief that the factual preconditions existed which were required to exist in order to justify them in exercising the authority given them to act with approval . As to the former two points, the presumption of validity of the actions of the governmental officials is sufficient, in the absence of any challenge by the plaintiffs, to justify this court in not examining them fUrther. As to the latter point, the facts underpinning the contention are substantiqlly the same as those to be discussed in connection with the third area of judicial inquiry . 18 "-" ~ --:"--"""-""""--- "-" . ~ -.~. - --- -.. �III: The third and last area of judicial inquiry is that generally encompassed by 5 U.S.C. § 706(2) (a). Again paraphrasing Mr. Justice Marshall in Citizens to Preserve Overton Park v. Volpe , supra , at 415-416, this area of inquiry requires a determination by the court as to whether or not the challenged decisions were based upon a good faith consideration of the relevant factors as well as upon whether or not there was a clear error of judg·ment in arriving at the challenged decisions. The pla'intiffs allege three basic deficiencies in the EIS for the Segment . They say first that the traffic projections which wer e utilized in th e final conclusions of the BREIS are so incompetent as to demonstrate a clear error of judgment since they were included as a part of the final EIS upon which the Secretary of DSDoT made his final judgment on April 8, 1974. Secondly, the plaintiffs allege that, as a result of the errors in BREIS, al l of the relevant factors were not properly and correctly considered in assessing the total environmental impact which would result from the use of the segment of 1-95 under consideration if ·and when it were used in connection with other segments or roads already built or propo sed to be builtin .the Bal tirnore Metropolitan Area. Lastly, the plaintiffs allege that inadequate consideration was given t o alterna ti ves to construction of the segment such as the use of exclusive bus lanes, rapid rail transit, reversible directional traffic lanes, and other s uch restrictive mea sures and that, therefore, all the relevant factors were not considered and ther e was a clear error of judgment in approving the.final EIS. At the outset, the court finds as a fact that the federal decision makers at the District, Division, Regional, and National level in the FHWA, as well as in the TES section, the General Counsel's office, and the Acting Secretary's office of USDoT, act ed in good faith in making the decisions which are in issue in thi s proceeding. While it is true that certain of the FffivA official s , 19 .. -- _.. - ., \' , , . �particularly at the District and Division level, cannot be said to be subjectively impartial in their attitude to the 3-A System and the subject segment of 1-95, the same is true of certain of the Regional officials of EPA and of BAQC. Subjective impartiality is not required, however, but only an open mind, willing and able to exercise good faith objectivity in weighing the reasons, pro and con, for taking a particular action in compliance with the responsibility imposed upon that official by law. Environmental Defense Fund v. Corps of Engineers , U.S. Army, 470 F.2d 289, 296 (8th Cir. 1972), cert. denied 412 u.s. 931 (1973); MAD v. Volpe, supra, at 1389. The BREIS study, a summary of which was included in the combined final EIS and "4 (f) It statement, formed a major pa.rt of the " factual background upon which th e ultimat" decisions which are e challenged here were made by th e highest authori ties in USDoT and I FHWA. 1 ! Essential to the validity the technical reliability of th e I of the conclusions of BREIS is projec~ions of traffic volumes l which were developed in the various alternative transportation 1 systems analyzed. I j In the area of need for the subject segment of 1-95, as well as in the prediction of l evels of CO, He, POX, and N02' the predictions of traffic volumes in various target ! years of the several alternative transportation systems studied are crucial. > I Errors in traffic volume projections most likely would result in errors in conclusions based on traffic volume projections. Prediction of the future, however, is necessarily a risky business. Thi s court is persuaded that no single methodology or technique in prediction of futUr e traffic volumes has been empirically d emonstrated to be an infallible one under all circumstances. The basic methodology utili zed in the BREIS study was to assume a land use pattern and d e nsity for each of the respective alternative transportation systems to be examined. Necessarily, such a procedure involve s a substantial amount of judgment to be 20 ,.. �• , ,- exercised by those who perform the study. The land use predic- tions were performed by experienced professional land planners and traffic analysts on the staffs of RPC and AMV and were based upon examinations of factors considered most likely to influence land use patterns. While one may disagree with the results within a specific instance of the application of their professional judgment, it is impossible to say with certainty, or even with probability, that their judgment in general was erroneous. Having decided upon the respective land use which was correlative with a particular transportation system alternative, the travel patterns of all people assumed to be living and working in the region with respect to each assumed land use were then determined by using th e trip generation equations developed through the application of computer techniques for the Baltimore region. The basic theory of j I 1 called th e~equa tions, euphemistically collectively a "gravity modeJ," is bottomed upon the proposition that history repeats itself. In other words f it was assumed that there is a demonstrable relationship betwee~on the one hand, the social economic, and land use characteristics of a parcel of land and its availability or accessibility · by various transportation modes, and, on the other hand, the number and mode of 'trips of persons to and .from that parcel of land. , , The gravity models used in the BREIS were very sophisticated in their predictions of the distribution of the predicted trips on various highway links of the regional highway system and on other parts of the assumed transportation system. The basic gravity model;ng teChnique employed in the BREIS study, however , is mor e sophisticated than that which has been utilized in the past in that an attempt was made to break down, for comparison purposes, the land use assumptions into different land us e and d emographic assumptions for each of the alternative transportation systems being analyzed. The trip generation equations used in BREIS were based on the travel desires and choices indicated by the 21 B~mTS origin and �destination study carried out by Wilbur Smith and Company in the Baltimor e Region i n 1 962 . The BMATS study did not, however, reflect changes, if a ny, in trave l patterns a nd choices which migh t have been caused by the ~ornpletion and opera tion of the Baltimore Beltway in 1 963 and years following. There is doubt among professionals in the field whether a massive origin and destination study of .t he scope of the 1962 BMATS study should be r e peated at the present tim ~ to determine whether or not there is any major change in the trip g e neration relationships which have been caused by the completion and operation of th e Baltimore Beltway and othe r major projec t s. While it would appear to thi s court th at it is desirable to h ave as much info rmati on as reasonab ly possible in de termini ng the continuing validity of ass um ed equati o n s . ,f or the projection of futur e traffie volumes, the c ourt does not believe it appropr ia te or neces- sary for it t o attempt to set itse lf up as a super professio nal tran spo rtat~on ana lys t or planner to state that the equations are necessarily in error solely because they were based upon the BMATS study of 1962. The plaintiffs charge most vigorously that the traff ic proj ections of BREIS are understated in a ll a lternatives which include as a component the 3-A System , beca u se th e equations do not , explicitly c ontain a factor for "generated " traffic. "Ge nerated" traffic i s a term utiliz ed by profes s ional planners and transportation analysts to refer to a phenomenon of combined additional trips on an old road and a generally parallel n ew .road which are greater than those additional trip s which can be account ed for simpl y (1) by - divers i on of existing traffic from other routes i n the g e n e ral vicinity and (2) fr om n orma l growth of traffic in g eneral over a given period of time . There is a dispute among professionals in the fields of tran spo rtation planning and analysis as to whether or not the phenomenon of "generated" traffic can be said to exist on a regional basis as oppo s ed to a s pecific hi ghwa J' link or series of links basis. 22 -- ."--, \' Furthermore, while tr ansportation �.. planners and analysts talk about "generated" traffic, the phenomeno n is not clearly understood, and they do not know the destinations of such traffic or the purposes of the trips which are involved in such traffic" . At least some of th e generally assumed causes of "generated " traffic were taken into consideration implicitly in the BREIS methodology in that a factor was included (1) for trips diverted from other forms of transportation , (2) for trips which would have been made to other destinations or from other origins if the new route had been les s attractive, (3) for traffic changes caused through sophisticated and sensitive changes in land u s~and (4) for traffic chang es caused by changes in demographic patterns assumed for the various transportation system alternatives. There is no evidence of any generally accepted methodology among transportation planners and analysts for the inclusion of a factor which explicitly represents other ca u ses of "generated" traffic in a mathematical travel simulation model used for travel forecasting on a region-wide basis for a region comparable in size to Baltimore. Whether "generated" traffic should or can be explicitly taken into account in travel forecasting of a regional type $uch as is sought in BREIS is a matter of reasonabl e debate ' among transportation planners and analysts. To the extent that "generated" traffic is generally acce pted to be appropriate to consider in gravity model formulae in reference to a single facility, such traffic was taken into consideration in " h e travel t forecasts employed in BREIS, within the state of the art of travel forecasting, by the data and methodology applied in BREIS on a system-wide basis. As a part of the 3-C Process, a validation check was made of the simulation formulae utilized for traffic projections and forecasts in the Baltimore region which were used in the BREIS study . The verification process for the models and subrnodels u sed in the BREIS for traffic projections compa red th eoretical simulated projections of VMT for 1970 \-li th extra polated VMT based upon ac tua l counts for the same year. 23 . \ \ ' " �• , I .. It was known tha t the models would not give an absolutely perfect representation of observed 1970 travel. Rather , it was expected and hoped that they would give the approximate or rough orders of magnitude of the l eve l of the observed 1970 travel. It was also sought to be determined whether the models appeared to show any consistent bias and whether roughly correct levels of travel were shown to have take n place in the correct transportation corridors. For purposes of the evaluation , traffic counts were obtained from the State Highway Administration and from local juri sdictions. I I ! I There were actual traffic counts for the simulated crossing of a regional line of division known as the Gwynns Falls screen line. At the Gwynns Falls screen line , the aggregate simulation is 5.6% higher than the aggregate adjusted observed traffic count for 24 hours. I I Th e simulation is 40.4% higher for peak periods. Figure I of plaintiffs' Exhibit 239 reflects the ratio of simulated traf fic to counted traffic for 24-hour and peak periods (36) at 22 cutlines . The counts u sed on these cutlines were actual, r ather than extrapolated, counts. The cutlines were selected for places which were thought would tell something useful about the way the model was simulating ground conditions, but could only be established at places where actual counts were , available for adjacent facilities crossing a corridor cutline. The average of the 22-cutlin e ' 24 -hour ratios is 95.04% in the simulat ion to the actual counts. , The average of the peak peri.o d ratios for the 22 cut lines is 20.89% higher for the simulation . I than the actual counts. A comparison was .also made between the adjusted ·counts ·of (37) and the simulation. vehicles crossing the external cordons ( 36 ) A cu tli ne is an artificial line drawn on the highway network whic h cros ses several roads in the network. The total traffic count for the several roads which the cutline crosses (measured at the 1?oints on th e several roads where the cutline crosses those roads) ~ s the traffic count for that cutline. ( 3 7) An exte rnal cordon is the imaginary line which delineates the external limit of the study area . The external cordons in all 24 .. -- --.--- - .-.-_.- ..- �.. The aggregate simulation was .3% higher than the aggregate adjusted counts of the crossings of the external cordons . Table 2 of plaintiffs' Exhibit 239 presents comparisons , by volume range of facilities, for the number of count observations actually obtained to the volume simulation for those highway links at the point at which the count was obtained. In volume (38) group s below 30 , 000 ADT , the simulation is slightly lower than the adjusted counts for 24 hours. For the adjusted range in excess of 30,000 AnT , the counts are 21% higher than the simula tion for 24 hours. For the peak period volumes , the simulation is s l ightly higher for volumes ranging up to 4 , 000 vehicles, but the counts are 22% higher than the simulation for the 1 8 obser vations involve d in the comparison for peak volumes of 4, 000 o r more. In order to make the comparison of the simu lated VMT t o the actual VMT, it was necessary to make certain assumptions since traffic counts were availab l e on only approximately 25% of the : I l i nks in the simulation network . I 1 In addition , not al l of the actual traffic counts comprising that 25% of the links wer e made in 1970 and many of those counts were factored t o 1 970 from counts 1 made as early as 1968 and as l ate as 1 972 . the a c tual traffic counts were not adjusted 1 , l I In a number of cases , fo~ " mu1tip l e vehicles. ! ax l e I n computing Table 3 of plaintiffs' Exhibit 239 , the actual count, as adjusted for 1970, was used for each l ink for which an actual count was available and multiplied by the l ength of that link in order to arrive at vehicle miles traveled . For those links for which an actual count was not available , t he averag e of the counts for links within the strata for which count s were a v ailable was used as the count for that link. Each averag e link count was then multiplied by the length of that link (37) continue d the corr idor s cro ssed 6 6 highway facilities ranging in vo l ume from a hig h o f 55,6 00 on th e Baltirnor e -h'ashington Parkway to a road with ?n "averag e daily tr uf fic o f 60 . A number of the roads have volm:tes in th e l o w hundr e ds on a daily basis. (38) Averag e d a ily tr a ffic . 2S ,. , �. . in order to arrive at estimated vehicle miles traveled for that link. The total of all such links within a stratum was presented in Table 3 as the actual count. The VMT comparisons in Table 3 reveal that the model simulates 93.3% of VMT for freeways in high intensity areas. for freeways in all areas is 86.8%. The average for principal arterials in all intensity type areas is 84% . collectors is only 45%. Mr . Ock~rt The average The average for The regional average is 79.4%. of the Regional Planning Council and others of the professional planners involved in the BREIS study believed I that the relationship in Table 3 tended to show a bias which over- I stated the actual VMT in relation to the simulated VMT. I • Their reasoning was ·based upon the premise that the traff ic counts which were available for use in the year 1970 were on highway links on high volume roads on which there was some problem which had precipitated the taking of the traffic count in the first instance and that the use of those traffic counts, as an average to be , used in the comparison as the link count for those links for which there was no actual count, would overstate the actual VMT. In other words, the professional people involved in traffic fore- I . casting in this area were of the opinion that the links whose traffic· counts were used as the basis for the averaged computation of counts for links for which no actual counts were available were not representative of all links in that stratum. the The participants in/validation check then examined the simulated volume for each of the 4,400 links in the simUlation network. The average of the simulation' links was determined for those links in a stratum for which counts were available and was compared to the average count of all stratum links determined by simUlation. This comparison showed that the average of simulation counts for links for which counts had been taken was higher than the overall average by simulation of all links in the stratum. It was, there- fore, concluded to present the VMT comparison in the travel 26 . ~ �.. simulation model validation report (PX 239), on an alternative basis, in an additional table to compensate for the presumed bia s. The VMT for links for which actual counts were available was computed by the us e of the actual counts in the same manner as the VMT for those links was computed for inclusion in a stratum in , Table 3 . For those links for which there were no counts, how- ever, the mean of the counts on links within the stratum for which .counts were available was adjusted by a factor, the numerator of was which/the average simulated count for all links within the stratum and the denominator of which was the average of all counts within the stratum for which counts had been obtained. On this adjusted basis, as is shown in Table 4 of th e validation ! report (PX 239), the model simulated 107.7% of VMT for freeways I and high intensity areas and 95.6% for freeways overall. I The regional average for all road and area types was 85.8%. The difficulties in the validation check caused by the fact that actual counts, factored in a uniform method to the year 1970 and taken by uniform procedur e , were not available for all highway links in the various strata has caused the RPC and the state highway officials to embark upon a program designed to eliminate this difficulty in the future. Beginning in the summer of 1974, traffic counts are being taken for planning purposes at random locations of links for differ e nt strata. The purpose i s to be able to estimate WiT by using counts that are completely free of bias so that the .plaintiffs will not have to go through the procedure which was found necessary in the adjustment of counts for the 1970 alternative comparison. The counting program will be uniform in the methodology of taking the counts as well as in the factoring of those counts to arrive at 24-hour and peak period values. ·It is true that the adjustment of "actual" VMT reflected in the difference betw~en Table 3 and Table 4 of plaintiffs' Exhibit 239 is not itself proof that the gravity model and submodels 27 ·· r . , �' . .' utilized in the Baltimore region are functioning correctly.. The larger differences between the simulated results and the "actua l" counts in Table j were assumed by the RPC and other groups responsible for parts of the BREIS to be caused by a "bias" in the use of higher than actual counts, but, of course, it is conceivable that the differences could have been caused by a failure of the models to project VMT to as high levels as occurring. This, in fact, w~re actually is the th esis of Mr. Morris, the expert for the plaintiffs, who stated his belief that the failure of the for BREIS models to include a factor/Ilgenerated ll traffic, rather than a bias in favor of overstated actual counts, is what re sulted in the differences between Table 3 and Tab le 4. While he may well be correct, there. is considerable credible expert opinion to the I ! contrary. 1 in the future, ,1 As the technique s of traffic forecasting are refined just as they have been in the past, and as the 3-C Process initiates more in-depth analyses and examinations of the: BREIS models and submodels, and .1 dti more current origin and destination studies are undertaken as a part of the overall continuing planning process in this area, the BREIS models may be found to require extensive revision and . recalibration. At the time that this study was initiated and comple'ted, howev er , and at the time the decisions b ased thereon were made conc e rning the i Segment, the BREIS model and submodels, and the methodology which was utilized in preparing the traffic projections in issue here fairly represented and were within the state of the art. An agency processing an EIS and making judgments required to be made by NEPA and related sta tutory mandates i s not required to accumulate " . the sum tota l of scientific knowledge of the environmental elements affected by a proposal. 1t EDF, Inc. v. Corps of Engineers of U.S.Army, 348 F. Supp. 916, 926 (N.D.Miss. 1972), affld, 492 F.2d 1123 (5th Cir. 1974). Not all experts in the field need agree with the conclusions conta ined wit hin the EIS nor does the la\V' require that a court fi nd the EIS is scientific perf ection. Life of the Land v . Brinegar , 485 F.2d 460, 28 .. . .... -_.0, .- ' . , ,.. , �, l .. 472-473 (9th Cir. 197 3) ; Redding v . Morton, (D. Mont. 1974) (6 E.R.C. F. Supp . 1887) . In addition t o t he alleged error of BREIS as a result of the fact its equations were based ~pon a 196 2 or igin-de sti n ation study and of the alleged failure t o consider "generated " traffic, plaintiffs assert other r easons why the BREIS is substantive l y inva lid and, therefore, does not fo rm a proper basis for the r espo nsible offic ial s to have considered ". n o t only the environmen ta.l impact of th e r oad or segme nt for which • immed i ate approval [was ] r e que s t ed , but also the total environmental impact wh ich would result from th e road or segment unde r ./ considera tion if and when us ed in connection with other segments I I • I or roa ds, alr eady built or proposed to b e built." MAD v. Volpe, supra, at 1385. BREIS Tech. Memo. No.2, e ntitled "Trave l Simulation and Traffic Analysis" stated certain assumptions which were mad e in the s tudy. Among tho se assumptions were the following s ix which th e plaintiff s have challenged: 1. "Total tr ave l demand i s invaria nt with system supply. The t o tal number of person trip s is a function of social and eco nomic characteristics which vary by alternative only and do es not vary ei ther .with the amount of highway o r tr ans it system avai l able or with the cost of tra vel ." > 2. "The rel a tive cos t s of using transit as compared t o highway travel will be approximately stable . " 3. "No restrict,t o ns such as g aso line r a ti on ing or limitation of parking supply will be imposed." 4. "Travel r espons e to s uch factors as trave l time and trave l costs will remain constant over the 25-year forecasting period." 5. "By 1980, 28 mil es of the Phase 1 Rapid Transit System w-ith a coordinated bus system will be in operation . " 6. "By 1995, the full six-corridor Rapid Transit System with a c oordinated bus system will be in operation." A variable for system supply was not expressly placed in the person-trip generatio n equation u sed in the BREI S travel f oreca sts. Professional opinion is uncertain as to the direct re- l ationship, if any, of the availability of highway facilities on 29 ,- �"I .. J a regional basis to the total n umber of r egiona l person-trips generated. In BREIS the total number of trips made by people was directly related to socia l and economic ".c haracteristics , such as population, employment, labor force, au tomobil e ownership, and income levels. These socia - eco n omic characteristics vary with the supply and characteristics of the transportation system. The sys t em suppl y therefore, implicitly, rather than explicitly, influenced the number of person trips gener ated under the rnethodologies and equations empl oyed in BREIS. BREIS did reflect differences in predicted VMT with respect to the a l ternative land u se and transportation assumptions. The conclusions were a s follows: Alternative VMT (P er 24 hours in millions) 1 970 Existing 19 80 Complete 3A 25 .9 77 H80 3A l ess Fort McHenry Crossing 26.000 1 980 No 3A 25.642 19 95 Complete 3A and GOP 34.146 1995 No 3A , all other GDP 32.826 1 995 Complete 3A, no GOP 32.217 1995 No 3A , no other GOP -- 17 . 842 28.599 The assumption and methodology u sed by BREIS in thi s r espect was within the state of th e art. As to the assumptions that there would be no gasoline rationing or limitation of parking supply and tha t the relat i ve costs of u sing transit as compared to highway travel would be approxima t ely stable, such assumptions in BRE IS · were based upon the uncertainties existi n g in those areas at the time that the BREIS was being prepared. Since h i s t orical f act could not be r e lied upo to supply the b ench marks, assumptions were necessary. At the t im e that the BRE I S study was being pr epared in 1 97 3, the effe~ts of the so - called e n ergy c ri s is were n ot gene rall y 30 , , ~ �.. knovm or recognized. It was not until late 1973 that the price of gasoline rapidly escalated and it became apparent that petroleum products, particularly gasoline, wo uld rema'in at a higher r elative cost than other i tems i n o ur inflationary economy . Since the fall of 1973, transit costs to the riders th ereof have decreas ed in relation to the costs of operating an automobil e . New studies hav e been undertaken, however, as part of the 3-C Process in the Baltimore region to evaluate the effect of the energy crisis on th e tran sportation plan. These studies , now substantially complete, will be a part of the information available when additional Segme nt a uthoriza tions are requested. The assumptions of the BREIS that there would be no transportation re s trictions, s uch as gasoline rationing or limitation of parking supply , were made in the early spring of 1973. At that time ther e were alternative strat egies under consideration for I • adoption as an SIP , but the responsible l oca l, state, and federal government officia l s had not agreed as to what th e plan would be • I It was generally known o r anticipated that ther e would be some restrictions on the unlimited use of automobiles, but it was not known exactly which specific p l a n s would be adopted. It was not until December 12, 1 973 , that the EPA, after having rejected t he j , SIP submitted by the Governor of Maryland , promulgated in th e I Federal Regi s t e r it s SIP for Metropo litan , Baltimore which in- cluded deli be rate restrictions on a utomobile u se. came law on January 12, 1 974. That ·plan be- Two basic reasons ex i sted for the assumption in the BREIS of no automobile restrictions. The first r eason wa s that it would have been extremely difficult and inefficient . to ana.l yze a variety of restrictive plans at a time when it was not known which plan or combinations thereof would be approved as law. Secondly , the ass umption of no restrictions on the use of the aut omobile would enab l e the policy maker s to see what air quality and other conditions wou ld prevail without transportation controls in order that they could move from the l e ast restrictive measures to th e mor e restrictive measures in 31 ..-, ; �• L , . the event that air quality and other conditions required increased restrictive measures on the use of automobiles. 197 " On December 27, a contract was made with AMV to perform an analysis of the effect of the SIP strategies as a supplement to the BREIS under the continuing 3-C Process. NEPA, § 102 (2) (C), require that every con- does not". ceivable study be performed and that each problem be documented from every angle to explore its every potential for good or ill. " Sierra Club y. Froehlke , 345 F. Supp. 440, 444 aff ' d , 486 F.2d 946 (7th Cir . 1973). (W.D.Wis. 1972), The agency must undertake in good faith a diligent research effort " . • . which utilizes effective methods and reflects the current state of the art of relevant scientific discipline." Supp . 1401, E.D.F. Inc. v. Hardin, 325 F. 1403 (D.D . C. 1971). In the absence of empirical data or hard fact s at the time that the BREIS study was being prepared , the study was not technically inadequate solely because it stated assumptions of this nature which later proved to be incorrect, particularly where steps have been taken through the 3 -C Proc ess to analyze BREIS results further in the light of later deve lopments for use in making subsequent decisions. Compare State of Texas v . Environmental Protection Agency, 499 F.2d 289, 30 1 (5th Cir . 1974). , It would be the height of folly to require that no technical studies could be made in the area of traffic forecasting until the sweep of external events influencing the traffic projections had stabilized. History and common se nse tell us that such a statutory or judicial mandate would prevent All that is required is that studies f r om ever taking place . assumptions , wh ere necessary or desirable to be made as the groundwork for a study of this type, be made in good faith and with a rational e xplanation. Th e as s umpt i o ~ fi Such exists here. of BRE IS that trave l re spons e to such factors as travel time ar.d travel costs will remain constant over the 25-year f o recasti~g period is not seriously challenged in its 32 .. .-. ' .. . - l �, .. validity by the plaintiffs. Under the foregoing criteria, it was an appropriate assumption. Similarly, t 'he assumptions of BREIS relating to the extent of rapid rail transit in operation in the Baltimore region in 1980 and 1995 were appropriate. Completion of Phase One of the rapid rail transit system by 1980 was assumed in BREIS because previous transit planning had indicated that as a reasonable target year. MTA is currently estimating 1981 as the completion date for Phase One, the ceremonia l been held. groundbreaking for which has The difference between the years 1980 and 1981 is relatively unimportant in travel projections since the projection techniques are not that precise. From the standpoint of air quality, Phase One has very little effect on air pollution in the short term. The full six-legged rapid rail transit system is assumed for the 1995 target year because it is the official policy of the region as embodied in the GOP. Using the criteria above set forth, these assumptions wpre appropriate. For reasons which are more fully discussed in reference to 1 the finding of consistency between the plan for construction of the Segment and the approved SIP, the consideration of air quality in the BREIS also passes muster in that the relevant factors were considered in good faith and there was no clear error of judgment. Turning now to the discussion of alternatives to construction > of the segment of I-95, no point is made by the plaintiffs that there was not adequate consideration of alternative alignm~nts: On the contrary, the plaintiffs argue that there was not adequate considerati~n of alternatives to building the Segment at all in any location. On p. 7 of the original text of the final EIS, after a brief statement of the history of the study of proposed expressway systems in the Baltimore region over a 25-year period, it is stated in reference to the Segment as follows: "The alternative of no highway at all would leave the area of southwest Baltimore with inadequate tran s portation facilities. Industrial and commercial growth 33 ., , ,' ,. �. < woul6 be stymied by lack of adequate access. Existing residential areas would suffer from large volumes of truck traffic on their streets. "The Baltimor e -Washington Expressway corridor wou ld ultimately become unbearably overloaded since it would be the only adequate access point to Baltimore City for a ll south and southwest traffic." On p. 14 of the "4(f)" section of the final EIS the following statement is made. i I i ! I I , "Economically speaking , the roadway would stir and retain commercial interests within the city limits. Industry which depends ,largely on trucks as their main means of shipping and delivering will remain in the city rather than move to the Maryland counties due to their easy access to 1-95. Also, the highway along with the proposed rapid transit system will provide people with quicker means of travel to downtown shopping areas and the new inner harbor redevelopment project. "As a transportation facility , 1-95 provides an integral link between the northern and southern states. With respect to Baltimore City, traffic can use 1-95 "as a bypass of the city or can interchange with 1-395 and drive directly into downtown Baltimore." In responding to the comments of the EPA in its letter of January 19, 1972, filed as an attachment to the final EIS, IDBC, in a 1 I 1 I ; letter dated February 8, 1972, also filed as an attachment to the final E1S, stated in reference to alternatives proposed to construction of the Segmen~ as follows: "Converting lanes of Russell Street or the BaltimoreWashington Parkway during peak hours is an impossibility. These facilities do not operate at a directional split which would allow such an alternative. A 65-35 or even 60-40 split may allow this. However, portions of Russell Street are almost a 50-50 split at peaks both morning and evening. The Baltimore-Washington Parkway because of its interstate character has a tendency to oddball peak hours in directions opposite from what may be anticipated. For , instance on Friday afternoons traffic from the Beltw~' inbound is often heavier than outbound. In most instances the's e facilities operate near peak capacities during rush hours." (Emphasis in original). IDBC's letter also noted that staggering of work hours to reduce peak volumes was being done "to a large extent already to spread peak hour traffic in many areas of the city." As t o the suggested EPA alternative to the construction of the Segment of establishing excl usive bus lanes on existing roadway facilities to encourage utilization of mass transit service in the corridor to be served by 1-95", lOBe's l etter stated: 34 ,'- - " �.. " This i s hard to do whe n extensive portions of the Ba l t imor e - Nas hington Parkway a r e only two lanes each way now . Russell S tr ee t, although t hree lanes each \-Iay , allows no space for exclusive bus lanes wi t h out urs urping an existing travel lane . This would r e sult in llionumental traffic jams." In respon se t o an EPA s uggestion that an alternative t o the cons truction of th e Segment would be an improvement and expansion of public tran spo rtat i o n mode s s uch as bu s and rail service, lDBe responded that the improvement of pu~lic tran spor tation fac ili- ties "i s considered an integr a l part of the tr ansportation network, not a~ an a lte rna tive . The hi ghway program assur es existence o f a future rail r ap id transit line in this corridor as well as additional bus service s ." As previous ly noted , th e final EIS , as supplemented, included a summary of the BREIS s tudy, the express purpose of which, among other things,was to study and an a lyze the transportation sys tem alternatives in the year s 19 8 0 and 1995 and the environmental effects which thos e alternatives could reasonably be expected to have . Attached as Appendix I to thi s opinion is a chart contained in th e final EIS, as s u pplemented , entitled · "Evaluation of Short- I I. Term (19 8 0) Eff e cts. II Attache d as Appendix 2 is an additional- chart found in the final EIS , as o f Long Term (1995) Effects." supplemented , ~nt itled "Evaluation In sUIllfl.lary form these two ,charts set forth the result s of the BREIS study. While the conclusions of BREIS, f o r rea sons discus sed elsewhere in this opinion, may in part be debatable, they repr esent th e r es ults of a dilig e nt researc h effort which , in good faith, utilized " • . effective methods and ref lect [ed 1 the current state of the art of relevant scientific dis cipl ine ," and ", should be judged in light of the scope of the proposed program a nd the extent to which existing kn owledge raises the possibility of potential adve rse environmental effects , " E .D.F., Inc. v. Hardin , supra, 325 F. Supp . at 1403. In the light of a ll of th e transportation stujies which have b een under(39 ) taken over the past 25 years in the Baltimore region , (39) it was See MAD v . Volpe , supra, 1369-1379. 35 '. '. ,. �, <. .. not n e cessar y for the EIS to r esta te th e c o nclusio ns o f all of the expert s , or to engage in, for the purposes of this one pro ject, a r esta temen t of all of the fact ors relating to city-wida and r egional tran sporta tion plans as th ey affect segme nt of 1-95. the s ubj ect Alternatives t o the 3-A System, of which the subj ec t segment of 1-95 is a part, were adequa tely examined in th eir respective for eseeabl e e nvironmental impacts, and th e evidence discloses that a good faith "hard look !! a t the salient problems was made by t he responsible officials for the purpose of engaging in reason e d decision making. agr ees with their Whether or not this c ourt ultimat e conclusion is immaterial. It is not the function of this court to set policy nor to substitute its judgment f or that of those fed era l officials whose to act i s imposed by stat ute o r r egulation . re~pon s ibility Having engaged in a "substan tial inquiry," the court conc ludes that the approval of th e EIS, a s · supp lemented , for th e Segment was not arbitrary and capricious and did not constitute a clear error of judqrnent. I I Va lidity of Consistency Finding IV 1 I • ./ , , , As previously noted in PartI of thi s opinion, in response to ( 40) th e manda t e of the Federal - Air Highway Act of 1.970, Inte rim Air Quq lity Guide li nes we re adopted by FH\\'A on November 16, 1973. For the reasons set forth in Part I in this opinion, it is this c ourt ' s judgment that there was no procedural error in th e approval by t he Regi ona l Administra t or of the Fm\'A of the Air Quality Supplement to the fi na l EIS . Hi s approval constitut ed evidence of hi s pos iti ve fi nding on the consis tency of the highway proposal with the SI P . 23 C.F.R. § 770.204(b) (3) (iii). e vidence h ere is cl ear tha t (4 0) Furthermore, the t he Regiona l Administrator of FHWA 23 U.S . C. § 10 9(j) prov i des as foll ows , 'IThe Secretary, af t er consultation with the Admi ni5tra t or of the Envi ro nme ntal Protection Agency, s h all develop and promulgate guidelines t o assure that high\<lays constr u cted pursu ant to thi s title are con sis tent with an y approved plan for the implementat:ion 36 �, • .. did not make a positive d e t ermina ti on of cons i stency without fir st consulting with represe ntatives of t he EPA Regional Administrator (4" in compliance Til l the provisions of 23 C.F.R. S 770.204 (b) (1) (v) (A) As a r esult of the a ll-day meet ing of June 18, 1974, which was attended by Region and Division officers of FHWA and Region and Wa shington headquarte r s officials o f EPA, a memorandum of unders t anding between Fm'lA, EPA, lOBe, BAQC , and Maryland Do T was exe- cuted, dated June 28, 1974. While it was in error in say ing th at FHWA, as opposed t o the Division Engineer of FHvlA , h ad found the s ubj e ct segment of 1-95 to be consi stent with the SIP , the rnemorandum of . understanding went on t o state that its purpose was to a ttemp t t o r esolv e the c onc ern of EPA and BAQC ove r the consistency of th e construction of th e subject segment of I-95 with the SIP and was e nte red into " . I , . in recognition of the continuing Clean Air Act requir eme nt to atta i n and maintain air quality levels within the limits of the nationa l ambient a i r quality (42) standards . . (40) " continue d of any ambient air qua lity standard for any air quality control region designated pursuant t o the Clean Air Act, as amended. " (41) Thi s provision of the Interim Air Quality Guidelines in t erms app lies only to thos e cases in which, un like the present circumstance , the EIS has not been approved by the Regional Administrator of t he FHWA prior to October 15, 1973. Even if it did apply, however, the r equir emen t has been met . (42) The memorandum of understanding sa id in pertinent part: "2 . The parties will immedia t e ly exchange info rma tion on their air pollution , analyses for the Segment which describe th e conclu sions , assumptions, and s upporting methodo logy used. "3 . The pa~ties will , as expedi tiously as possible, us e all reaso nable efforts: "a . following the exchange of th e information described in paragraph 2, to resolve the technica l differences in the EPA, BAQC, an d FHWA studies of the Segment . lib. In the event s uch resolution demonstrates that the unr es tricted use of the Segment would prevent it s meeting Air Quality Objectives, to study and thereafter impl emen t the most feasible Usage Res trict ions . 37 �.. It was only after the memo randum of understanding wa s executed that the Regional Administrator, FHWA, made the consistency finding of the subject segment of I-95 with the SIP on August 9, 1974. While PS&E approvals of four sections of the subject segment of 1-95 from Caton Avenue to Russell Street were approved by the Division Engineer of FHWA prior to the finding of consistency by the Regional Administrator, it would serve no useful purpose to exalt form over substance and require con s truction work to stop while new PS&E approvals are issued. The good faith action of the Regional Administrator of FHWA in making his finding of consistency with the SIP cures whatever error existed in issuing the PS&E approvals prior to the consistency approval by the Regional Administrator. i 1 Particularly is this so since the plaintiffs did not raise that particular alleged procedural error as a basis for their cause of action . v. Morton, =~Era, at 1284; Compare Jica~illa Apache Tribe of Citizens for Mass Transit Ag~i~st Freeways v. Brinegar, supra . (42) continued Strategies to be investigated would include, but not be limited to, high occupancy vehicle (carpool, bus, vanpool) lanes, to increase the people carrying capacity and efficiency of the ·Segment. > "4. During the first two (2) years after the Segment has been opened for usage by vehicular traffic; "a. FHliA will: "(I) Conduct carbon monoxide monitoring at agreeoupon sites, not to exceed three (3)in number and for agreed upon three-month periods representing the three (3) worst months of the year for CO concentrations, as determine d by historic data gathered from the WILMARCO Station, using methodology and equipment approved by EPA for monitoring carbon monoxide; and "(2) Perform annual hydrocarbon emission projections in the Regional Subarea using methodology approved by EPA. "b. The parties will annually review, and if necessary, by revision of Maryland's SIP, revise the Usage Restrictions and u·se their best efforts to make other arrangements to continue the monitoring provided 38 �f ... v Plaintiff s have not alleged or shown that the Regional Administrator, FHWA, acted outside of the scope of his authority in making the finding of consistency with the SIP , and th e c our t, therefor e, will not di sc u ss any of the aspects of that question. VI Th e plaintiffs do al l ege that th e f inding of c o nsistency betwee n the plan for construction of 1-95, Caton Avenue to Russell Street, and t he SIP was arbitrary and capricious . As . previous ly noted, such an allegation in this type of proceeding require s the court t o make a substantial inquiry. The court may not u phold the challenged finding unless i t is petermined that the decision was based upon a good faith c ons ide ratio n of the relevant factors and that there was no clear error of judgment , by the person or agency making the challenged decision. i While due deference must be give n to the presumption of r egularity of the official action, that presumption may not be used as an excuse for failure to mak e a 1 1 probing revi ew of that action. Citizens to Preserve Overton Park v. Volpe , supra , 415-416. Since the s tatute, 23 U.S . C. § l09(j), and the Interim Air Quality Guidelines require a determine of cons istency of the I (42) continued for in subparagraph 4a above , it being understood that FHWA' s funding of monito ring under the agreement shall be limite d to the aforesaid two-year period . "5 . The Segment will be u sed at such time s and in such manner as to b e in compliance with the Air Quality Objectives. In th e event the conditio n referred to in paragraph 3b occurs , the initial u sage of the Segment shall, prior to such use, be provided for in a revision to Maryland's SIP; provided that if there should be a photochemical oxidant violation for the Bal timor e AQCR, the usage of the Segment will, with r ega rd to suc h violations, be r ev iewed in th e same manner as other traffic in the Ba ltimore AQCR, and not in isolation. "6. This agreement shall not be construed as a finding by EPA as to the con s i s te ncy of the Urban Transportation Plan and Program with Maryland's SIP under 23 CFR Section 770.204(a)." 39 .• ,, r �, . • constr uctj o n ' of a highway ". implemen t ~ . . with any approved plan for the ' j o n of any amb i ent air quality standard for any air quality control region . . . ," a starting point in this analysis is to determine what ambient air standards have been established for the Baltimore r eg ion . Pursuan t to the requirement of 42 U.S.C. S 1857c-4, EPA ha s ( 43) (44) promulgated national primary and secondary ambient air quality standards. Th e prima ry and secondary standard s for CO are: (a) Nine parts per million (9 p . p.m.) as a maximum eight-hour concentration which is not to be exceeded , more than once per year , and 1 f I (b) Th i rty-five parts per million (35 p.p.m.) as a I maximum one hour concentration which is not to be ( 45) exceeded more than once per year . • I The primary and secondary sta ndards f o r photochemical oxidents i s I . 08 p.p.m. as a maximum one hour conc entration not to be exceeded ( 4 6) more t han once per year. The primary and secondary standards 1 for hy drocarbons are . 24 p.p . m. as , a maximum three - hour concentratio (47 ) Th e ( 6 to 9 a.m. ) n ot to b e exceeded more than once per year. primary and secondary standards for nitr.o gen dioxide are . 05 p.p. m. (48) as an annua l arithme tic mean . The BREIS study showed that existing ambient air qua l ity in (49) does not presently meet national ambient t he Baltimore area ( 50) The purpose of the air quality standards promulgated by EPA . , ", SIP is to attain, maintain and enforce the national ambient air (51) quality standards in the Baltimore air quality c o ntrol r egion. ( (3 ) 4 2 U. S . C. S 1857c-4 (b) '(I) • ( 44) ( 45 ) ( 46) ( 47) ( 48) (49 ) (50 ) 42 U.S.C . S 185 7 c-4 (b) (2 ) . 4 0 C. F. R. S 50 . 8 , 36 F . R. 22384 (Nov. 25 , 1971) • 4 0 C.F.R. S 50 . 9, 36 F. R . 22384 (Nov . 25, 1971) . 40 C.F.R. S 50.10 , 36 F.R . 22 3 84 (Nov. 25, 1971' • 40 C . F . R. S 50 . 11, 36 F . R. 22384 (Nov. 25, 1971) . Actu ally the area covered by th e BMATS study of 1962 ., Appendices 1 and 2 to this opinion. (51 ) See general discussion in MAD v. Volpe , supra, 1398-1399. 40 " \ ' �.. There is no definition in either 23 U. S . C . § l09(j) or in the Interim Air Quality Guidelines, adopted pursuant thereto , of the term "consistency." The SIP itself does not purport to impose a blanket morato rium on all new highway construction, that concept having been rejected by the Regional Administrator of EPA in the (52) promulgation of the SIP . In addition , the fact that a blanket moratorium was not intended to be imposed is made clear by the indirect source regulati o ns promulgated by the EPA on (53) July 9 , 1974 . Even though these indirect source regulations do not apply to highway projects on which construction commenced (54) prior to De cember 31, 1974 , as is the case with respect to the subj e ct s " gment of 1-95, the indirect source r egulations of EPA , e in establishing certain requirements for approval by EPA of high way construction projects commenced after December 31 , 1974 , necessarily indi c ate that highway con stru ctio n °eer ~ is n ot interdicted. • According to Webster ' s Third New Internat ional Dictionary (Unabridged, 1966) , the word "compatible" is an appropriat e I (52) After noting that testimony h ad been received prepa ratory to promulgation of the SIP advocating a mo ratorium on new highway construction, the EPA Regional Administrator stated in the introductory bac k ground discussion of the SIP as fo l lows: 1 I "A blanket moratorium wou l d be an irresponsible act if highway projects that could lead to reduced emission s were included. A specia l regu lation wh i ch requires prior review and approval of all projects opens environmental concerns to fragmention and additiona l technical complexi ties t hat would compou nd the bureaucratic superstr u cture , and still not be respons ive to long-term growth considerations . Therefore, the Administrator i s of the opinion that the intell ig e nt use of current procedures offers the best pro spect to c on trol VMT and r educe emissions, especially h ydro carbons , which contribute to the excessive l evels of photochemical oxidants in the metropo l itan Baltimore intr a -state region . " 38 F . R. 34245 (Dec. 12 , 1973). ( 53) 39 F.R. 25292, 25298-25299. (5 4) 40 C.F.R. § 52 . 22(b ) (3). 41 . ,, . ... �.' synonym for the word "consistent" as it is us e '::' in 2 3 'J.S.C. § 109(j) . Th e purpose of 23 U.S.C. § 109(j) and th e ;nterim Air Quality Guidelines adopted pursuant thereto, therefore, is to develop a proc ess for approval of highway construction that will result in the construction of highways which are not incompatible with an SIP which has, in turn, been promulgated to attain, main- _ain, and enforce th e ambient air quality standards for a particut lar region established under th e Clean Air Act of 1970. Consequently, at least part of the methodology contemplated for a determination of consistenc y und er 23 U.S.C. § l09(j) is a comparison of the potential effects of the subject highway project (55) wi th the specific parts of the applicable SIP. The SIP is a compo s ite of various programs. Basically, those programs can be divided into three categor ies, as follows: (1) (56) surveillance of ambient air , ( 2) the regulation of stationary , ( 55) In the future, under regul at ions r ecen tly promulgate d by EPA (39 F . R. 25297 [July 9 , 1974]), most proposed major highway projects will be requir e d to obtain approval directly from the Administrator of EPA or his d e l ega te before construction ma y begin. . He may not appr ove the requested highway construction if he determine s it will "(a) cause a vi olation o f the control strategy of any applicable state implementation plan or (b ) cause or exacerbate a violation of the national standards for carbon monoxide in any region or portion th e reof." 40 C.F.R . S 5.22(b) (6) (i) . Direct approval of a highway proj ect by the EPA Administrator -or his delegate is not required by the regulations , however, for a highway project on which constructi on commenced prior to January 1 , 1975. 40 C.F.R . S 52 . 22(b) (3). These regulations were adopted by EPA pur s uant to the purpo rt ed author:ityof the Clean Air Act. (56) 40 C . F.R. § 52.1077(c) (3). 42 " �.. ( 57) sources, and . (3} regulations relating to mobile sources. The mobile ~ource regulations in the SIP can be divided into two subparts consisting of those which operate directly on the (5 S) motor vehicles themselves and those which generally could be termed VMT reduction strategies, The retrofit requirements and the maintenance inspection requirements apply to motor vehicles wherever they are operated and do not relate specifically to highways as such . The construc- tion of the Segment could not, t herefore, be incons i stent or incompatible with such requirements, · (59) The VMT reduction strategies of the SIP are six in number. They are strategi es for (1) a c ompu t er- aided car-pool matching (60) . (61) system, (2) reduction in parking provided by employers, (3) requiring exclusive bus and car-pool lanes along certain J transportation corridors to the central business area of Baltimore I City during peak a.m. a nd p.m. periods by January 1, 1976, in (62) those corridors in which it i s feasible, (4) the prohibition 1 (57) 1 ~ 40 C.F.R. §§ 52.1101, 52.1107, 52.1112. (5S) See ~ 40 C.F.R . §§ 52. 10 96-110 0 providing f or retrofit of certain devices on used motor vehicles and 40 C.F .R . § 52.1095 providing for inspection of vehicles for em i ssions. j (59) In addition to the six strategies enumer ated, the SIP also requires the establishment of at l east 15 miles of exclusive bicycle lanes in each di r ection in and around the central core of Baltimore City. 40 C.F.R. § 52 .11 06. Since the length of trips on freeway facilities such as the disputed segment of 1-95 would be expected to exceed the general expected l ength of bicycle trips, a significant effect of this strategy on projected 1-95 traffic is not anticipated , PX 79, p. 48. (GO) § 52. 110 4. (61) 40 C.F . R. § 52.1105 . (62) \ 40 C.F.R. 40 C.F.R. S 52.110S . .. . �• .. by May 1, 1 9 75, of parking on a l l streets on which e xclusiv e bus and car-pool l anes have been provided during the peak a.m. and ( 63) p.m. periods, (5) approval by the EPA of all parking facili- ti es with a capacity of 250 or more v e h icles on which construction (64) or modif icat i on i s begun after January 1 , 1975, and (6) for th e reduction of total ga llonage of ga soline delivered to retail outlets in the Baltimore r e gion if nati onal ambient air quality standards for CO and POX have n ot , o r will not , be met in that (65) region by May 31, 1977. There i s no evidence tha t th e construction of the subject segment of I -95 will be incompatible with, inconsi stent with, or . will prevent the impl e mentation of any of the six VMT reduction ~ strategies se t v' \ forth in the Maryland SIP. questioned segment of 1-95 will not bus lane s or car-pool lanes . The construction of the pr ec l~de its us e for exclusive Indeed, th e memorandum of und e r- standing of Jun e 28, 1974 , express ly rec ognizes that usage restrictionz m~y , und er the c ondi tions set forth in the a9r~pment, be implemented on the Segment. Th e r e being no overt inconsistency or incompatibility between the SIP stra tegies and th e plan for cons tru ction of t h e Segment, the n ext question i s whether or not , und e r the " Interim Air Quality Guide lines and measur e d against the backgrou nd of the purpo ses of NEPA and t he Clean Air Act of 1970 to cause the quality of the ambient air t o meet, and be maintained at , certain desirable standard s in order to e nhance th e environment and promote the health of our citizens, the FHWA Region a l Admini s trator acted arbitrarily by clearly over look ing or ignoring a plain and i n disp utab le indirec t in compa tibility or incons istency b e twee n the two. (63) 40 C . F.R . § 52 . 1109. (64) 40 C.F . R. § 52.1111. (6 5) 40 C.F.R . § 52.1110. 44 , " .. �Since the purpose of the SIP is to accomplish the achievement and maintenance of the national ambient air quality standards in the Baltimore air quality control region, the standard which appears to be implicit in the .I nterim Air Quality Guidelines for the determination of consistency is logica l ly that the construc- tion of the highway section in issue will not significantly, either alone or in conjunction with other parts of an urban transportation system, contribute to a failure of the region to meet th e na~ional ambient air quality sta ndards. The examination of the air quality impact of a particular highway segment, therefore, has two levels. The first deals with the air quality impact of the highway segment alone" The second is the impact of that highway segment, together with other transportation facilities , which constitute the urban transportation system as set forth in the urban transportation plan. Th e nature of carbon monoxide is that it is a l ocalized (66) problem, which must be measured on a highway segment basis. On the other hand, the problem of POX, HC, and NO , by the nature 2 of those substances, is a regional one since the localized (67) effects of thos e substances are relatively minor . (66) The final EIS on "Air Quality Guidelines, Regulatory Action, Implementing § l09(j), Title 23, U.S.C . " of the Department of Transportation , filed -with CEQ on September 17, 1974, on p. 15, states: "While many aspects of th e air quality problem are re giona l in nature th ere are some which impact the hi ghway corridor directly. The carbon monoxide impact i s one whic h is localized in effect and should be eva luated \~'ithin the highway corridor. It was felt that th e e nvironme ntal impact statement process was a logical in s trument f o r the consideration of such impacts and c ou ld be used to assess the consis tency of highway section s with the state implementation plan." (67) ldo,at p. 26, where it is stated: "Co nvers ely , the eva luation of unstable pollutants at th e p roject l eve l is me aningless. The effect of hydrocarbo ns and o:..-ides of nitrog en have been shown to be r e l~tively minor on a local (or project) sc ale; however, th e ir products from the photochemical process are a serious health hazard but du e to the time for the reac ti o n to tak e place, t he impact is far removed from the -. 45 .,, , �.. I~ recognit i on of th e differenc e in th e extent o f the geogr a phica l ar eas of c o n s id e ration for the different air pollutants, b o th the Inte rim Air Quality Guidelines (38 F.R. 31677 [NOV. 1 6 , 1973]) and th e Final Air Qua lity Guid e line s, adopted after t he close of e vide nc e in thi s c as e 1974), provide f o r "con s i s t e ncy" d e t e rmination s to b e made two diff ere nt l e v e l s . Th e highwa y s ection c o nsistency de terrninh - tion i s mad e by t he FHWA Re gional Ad m inistr~to r under 23 C.F.R. fo~ th e purpo se o f c o n s id e ring the air quality impact (68) of th e specific hi g hwa y segment und e r conside ration. The § 770.204 at, ' (39 F.R. 44441 [Dec. 24, r e gional air qua lity impac t, on the other hand, which can only realisti ca lly b e evaluate d at a leve l extending beyond the particular highwa y segmen t in qu es tion, is made under 23 C.F.R. §770.204, through a proc ess o f revie w by the FHWA Regio nal Admini s trator, in cons ulta tion with the EPA Re giona l Admini s trator, o~ the consi s - tency of the urba n transpo rtation plan and program with the approv e d S IP a s a part of the FHWA Regional Administr a tor's (69) respon si bility for approving or certifying the 3-C Process . • The highwa y s ection " c onsiste ncy" determination deals with th leve l o f carbo n mo noxid e in the ambient air. so-ca l led "microsc al e study ." This analysis is th e In order to arrive at a meaningful conclu sion in t he micro scale s tudy, s e parate computations must be (67) c ontinu ed poi n t wh ere th e po ll u t a nts we r e emitted. Due to the time d e l a y fa cto r and t he disper s ion characteristics a regional cons ide r atio n of photoche mica l oxidants is necessary." (68) Id ., at- pp . 15 an d 27. (69) I d ., at p . 14, whe r e it is stated: "The r egio nal n atur e of the air qua lity pr o bl em, . par tic ula r l y that ~s s oc iate d wi th ph o tochemical oxidants, as '.... e l l a s the r egiona l natur e of th e tran s portation contr o l str ateq ies d eve loped t o mee t the requireme nt s of th e C l c i.l n Air ~ t , mad e c l e ar th e fa ct t h at the consideratio n of a ir qu ality must b e g in a t the tran sportation p lanning sta g e . Th erefore, the guid e l i nes seek t o incor porate air qua lity c o ns i d erations into t he planning process (the 3-C Process establis h ed p ursuant t o Titl e ~ 3 , U.S.C., §134). I'urther, the gui delines seek t o a s sure t ha t l a nd use l.,. 46 ~..- . - ... �·. ( 70) carried out for (1) background concentrations of CO and (2) th e total highway-gener ated CO concentration at a particular r eceptor site. In turn, the total hi ghway -genera ted co concentratio n at a particular receptor site is obtai ned by s uperimposing by appropriate calculations the concentra tion s of CO ge~erated from all u pwind highway l i nks in the study area. The CO concentrations from mobile or highway generated source are a factor of VMT multiplied by emission equations in turn applied to a mathematical model intended to predict the diffusion of gaseous CO based upon atmo spheric and other relevant conditions. Si nce the nationa.l ambient air qua l ity standards for CO may not be exceeded mor e than once per yea r , the study must be dir ected to a "worst ca se " condition . The microscale study of the Segmen t utilized the California ft Highway Line Source Air Pollution Mod e l , " based upon th e Gaussian diffusion equation, and modifj e d to expand thp. computAr program to project pollutant concentrations generated from a number of h ighway l inks in the study are a at a point at the desAred distanc e from the edg e of the challenged segment of 1 - 95. The model re- quires input data of peak vehicle volume per h our , emission factor s at each average vehicular speed , wind speed, and wind angle with respect to high\1ay alignment , h eight of highway pavement , r eceptor h eigh t , di s tance from edge of the shoulder to · the receptor , atmospheric sta bility class , mol ecu lar weight of CO, and identificatio n of the roadway producing the emissions. oretical re s ult of th e ca l c~l atio ns , The the- after add ing the appropriate background concentrations , is the one hou r ma ximum CO concentratio. a t any particular r eceptor site. (69) continued tran sporta tion Flan ning he compaticle with air quality p l anni ng. " See also p . 26 . (70) I . e., from no n - mobi le sources . ·17 .'-. ...- , . �\ .. The vehicle popu~ation and background CO c oncentrations in the micro scale study area which were utilized in the air quality asses sment supplement to the final EIS on the Segment were derived from the BREIS study. Th e legal validity of reliance on the traffic projections of BREIS has been discussed in Part III of this opinion. The calculations of the maximum background CO concentration s were based upon the "stanford Research Institute's Urban Diffusion Nodel" in BREIS and considered all mobile sources in the region t o calculate the maximum one-hour background con~ifferent centration associated with transportation alternatives under "worst" meteorological conditions. This methodology, the court i s satisfied, was within the state of the art at the time, the studies we re conducted. One of the critical elements in the ~icroscale study is the determination of the location of the receptor sites to be I utilized. A receptor has been defined by the EPA as "a ~ite i location ',·:here a person or person:.:; might reasonably be exposed I • for time periods consistent with the national ambient air quality I (71) standard for carbon monoxide . II Although this definition was promulgated subsequent to the time of the preparation of the microscale study of I-95, it is a rational definition which the (72) court accepts as applicable in this case. In concr ete terms, this c ourt believes that such definition must be interpr eted to require th e designation of receptor sites at areas where it can reasonably be anticipated that persons will remain for one hour in th e case of the one-hour standard and for eight hours in the case .of the eight-hour standard. ~ Based upon this interpre tation, the receptor sites chosen by ~ AMV for the Segment air quality assessment were reasonable. (71) "Inter im Guidelines For The Review Of The Impact Of Ind irect Source s On Ambie nt Air Qua lity" (EPA, July, 1974), p . 6 (PX 23-A), see al so . 40 C.F.R. § 52.2 2 (b) (7). (72) See also 40 C.F. R . § 52.2 2(b) (6) (i i) , (39 F. R . 25299 [July 9 , 1974 ]) , where it i s stated the EPA Administrator is t o evaluate "the anticipated conce ntration of carbon monoxide at re as ol"!.:l.ble receptor or expos ure sites which will be affected by th e r.~obi le source a ctivity expecte d on the highway.. " (Emp!1u.:;:is ad dad), �, ·. Th e r eceptor sites utiliz ed by AMV for the microscale study were all in excess of 200 feet f r om th e edge of th e highway pave men t. Altho ugh plaintiff s argued that a worst-case ana l ys i s should have included a parallel wind condition, this court is satisfied from the evidence that CO c oncentrations i n general are muc h l ess at distances of more than 200 feet from the highway und er parallel wind c ondi tion s than un der cross-wind conditions. The refor e , the northwest wind directi on used in t he CO s tudy of the Segment was appropriate for a worst - case analysis. Plaintif~ s also contended that th e co rnicroscale analysis of the Segment was invalid because the most stable atmospheric condition was not utili zed in the worst-case analysis . Although the re may b e ground for scientific dispute as t o whether o r not stability class D (utiliz ed by AMY) or stability class E (proposed by plaintiffs) i s the most appropriate to have been used, unanimity among experts is not the sine qua non for a legally valid air quality study within the present context . Since there is, the court finds, room for rea sonabl e and rationa l scientific disagreement on the subject unde r the present state of the art, there can b e no clear e rror of judgment on the part of one who in good faith relies upon th e results of a worst-case CO ana l ys i s in which atmospheric stability 0 was one o f the assumed factors. In a Gaussian Plume model the wind speed is a denominator in the equation, and accordingly a wind speed of one second is the worst case which can be simul a ted. met~r per If the wind speed were r educ e d to zero, the equa tio n would produce infinity . The use of one me ter per second as the wind speed in the Segment CO worst-c ase analysis w~s , therefore , r easo nabl e . Region 3, EPA, was of the view th at the CO microscale study should hav e utilized the HIWAY model, another version of the Gaussian Plume equation;rather than the Ca lifornia Line Source mod e l. Both models are within the state of th e art . Whil e .the HIWAY model generally produced higher predicted concentrations of CO at designated receptor sitec th an did the California Line 49 j \' �• ! .. Source model, neither mod e l, utilizing the inputs of AMV as to wind speed, atmospheric stability , emission factors, vehicle population , and receptor sites, predicted CO concentrations which were in excess of the one -hour maximum CO standard of 35 p.p.rn. as a result of the operation of the Segment in either the near (1980) or long (1995) t e rm und e r any of the transportation system alternatives studied . In estimating th e maximum eight- hour concentrations of CO, a different approach wa s e mploye d. Utilizing data accumulated by EPA which indicated tha t eight-hour concentrations of CO approximate 80 % of the maximum one-hour concentration of CO on or ne ar a highway due to the variabi lity in meteorological and traffic conditions over an eight-hour period , AMV multiplied the maximum one-hour concentration by a factor of 0.8 to obtain the maximum eight- hour CO concentration in the worst- case I analysis. I well below the national standard of 9 p . p.m. at the designated (73) receptor sites . i I I I j , The cha ll enged segment of 1-95, using this method, was predicted to have eight-hour maximum concentrations of CO As to the microscale analysis, the court fin~, as a matter of fact and of law, that the methodol ogy utilized in the study was wi thin th e state of the art and the conc l usions reached ther e in were rational. The Regional Administrator of FHWA, to the e xtent tha t he relied on such study in making his determinatio n of consistency on August 9, 1974, considered the relevant fact ors and cannot be said to have committed a clear error of judgment in his determination. (7 3 ) Utilizing more current but still limited data, EPA appears t o r e cognize an even mor e favorable ratio of 0.6 between the one -hour and e ight- h o ur maximum CO conce ntrations. The FIDqA Regional Administrator commented upon this in his determination of the consi stency of the segment of 1-95 with the SIP on Augus t 9 , 1 97 4 . 50 " . •• �• ., The mesoscale study reach e d conclu s ions relating to predicted regional ambient air concentrations in the near (1980) and long (1995) term for various alternative transportation systems of He, POX, N0 2 , CO, and particulates. These conclusions are set forth in Tech. Memo. No. 3 of the BREIS (PX 69). In predicting r e gional concentrations of CO, a computer diffusion model, the Stanford Research Institute (SRI) Diffusion Model For Carbon Monoxide, was utilized. th~ analysis, basis. As in the microscale regional CO predictions were made on a worst-case utilizing what this court finds to have been data and methodology within the state of the art, BREIS concluded that CO one-hour maximum concentrations in the Baltimore region decline in all transportation alternatives studied. will In the worst case, 1980 one-hour concentrations will decrease by onehalf and in 1995 by two-thirds below 1970 levels. The eight- hour CO maximum levels are predicted to show a similar relationNeither at the present time nor in the 1980 and 1995 ship . , "• projections are the highest CO concentrations at receptor sites in the vicinity of the disputed segment of 1-95. According to the BREIS conclusions, no violations of the CO national standards for maximum one-hour and eight-hour concentrations will , occur under any of the transportation system alternatives , studied at any receptor site in the Baltimore region in either (74) the near (1980) or long (1995) term. In the mesoscale study of HC, POX, N0 , and particulates, 2 a proportional modeling technique the BREI S . modeling was utilized by While this technique is the least sophisticated pro~edure, it appears to be the best available tech(75) nique presently apcepted by EPA. (74) A c o py of Table VI-16 of Tech. Memo. No. 3 of BREIS is a ttached as Appendix 3 to this opinion, summarizing the predicted maximum CO concentrations. (75) In the discu s sion by the EPA Administrator of changes in the indj rect sourc e regulations on June 28, 1974, he recogn ized inherent difficulty in utilizing the rollback method to pr edict am bient air concentrations of POX and N0 He stated 2 0 51 ',. �.... .. The measurement of hydrocarbons produced by automobile emissions is a means of predicting th e level of photochemical oxidants in the ambient air because hydrocarbons , through a chemical process in the presence of a s~ong sunlight in the uppe r atmospher e , break d own to produce photochemical oxidants. (75a) The reduction model for the prediction of photochemical oxidants is derived from th e existence of an empirical rela- tionship which has been established bet",'.een atmospheric oxidant level s and relative hydrocarbon emissions. of He The prediction levels of concentration in the ambient air rests upon the concept tha t future year He air quality levels are proportional to He emissions by weight during that year as compared to existing HC air quality levels and HC emissions at the present. Therefore, future HC air quality lev e ls are to present He l evels as future emissions are to prese nt emis s ions . Thus, future He air quality can be estimated through the relation to Eu..;:;h other of p.retienL He air quality, present liC emissions, and estimates of future He emissions. The empirical relationship which has been established b etween atmospheric POX levels and relative HC emissions by weight is not a linear one . (75) The relationship is continued tha t th e EPA in th e future will eliminate the exclus~ve use of the pro portional model and allow deci s ions to be based on predictio n concentrations of POX and N0 2 obtained by new methods . As of the date of this opinion, the new methods have not been announc ed by EPA. 39 F.R. 25295 [July 9 , 1974J. (75a) See fn . 76, infra . 52 .. . ',. . �, .. (76) generally depicte d in Figure VI-16 of Tech. Memo. No . 3 of BRE I S , shown be l ow : 100 ~ 0 ~ ~ z 0 80 u z 0 ~ /' ~ x w 60 / z 0 m / K ~ u :i1 0 1;: 0 w ~ '9 20 6> w K o 0.00 0.05 I V V / 0.10 0.15 0.20 0.25 0.)0 MAXIMUM ONE HOUR OXIDANT CONCENTRATION, PPM Note.: Assumes no H ydroc. rboo or Oxicbnt b.ckgroun d FIGURE VI·16. REOUIRED HYDROCARBON EMISSION CONTROL .AS A FUNCTION OF OXIDANT CONCENTRATION' Throug h the use of the r eduction model depicted in Figur e VI-16, by measuring the existing ambient air concentration of > POX one can determine the percentage by which He emissio n s by weight mus t be reduced to a ttai n the POX ambient a ir standard of 0.0 8 p.p . ro. See discussion in Sta t e of Texas v. Environ- mental Protection Agency , supra , 499 F . 2d at 294-295 . (76) In turn, this graph, a so - cal l ed "r eduction model ," is purportedly an expans i on of the graph designated Appendix J, 40 C.F.R., Part 51. For reasons expla ined , inf ra , th e court believes there was a n error in the expansion of Appendix J. 53 ,. �l ~. . . • Applying the reduction model to the facts here is ace omplished by (1 ) noting that th e 1970 observed l eve l of POX was (2 ) 0.21 p.p.m.,/referring to th e r ed uction model curve a t th e point which r epresents this value on the hor izontal axis and (3) r eading on the vertical axis the percentage r educ tion in hydrocarbon emissions r equired t o a tta in th e s t a nda rd. The conc lu- s ian one r eaches , a mat t er on which a ll parties agree , is that a 70% r educt i o n in He emission s is necessary t o attain th e POX standard in ~he Baltimore r egion according to the reduction mode l. Making the as sumption s that (1) the VMT predictions of BREIS wer e correct, (2) that n o tran spor t a tion control strate- ties were in force, and (3) that effecti ve implementation had been accomp li shed of the federal motor vehicle emission con- , troIs for new vehicles which were contained in the regulations as of the time of the s tudy, BREIS utilized equations within th e state of the art t o predict hydrocarbon e missions by weight from motor v e hicl es in the near (1980) and long (1995) term for all transportation alt e rnatives studied . These hydrocarbon emis- s i ons by we ight wer e obtained through a process of multiplication of emission factors for th e vario u s type vehicles at the varied st u dy dates , taking into consideration varying traffic > conditions as predicte d in th e gravity model . Since the 6 - 9 a .m. period is the time when He emissions are assumed by r espo n s ible scientific opinion to contribute t o the formation of POX , this time period is the one for which He e missio ns were calculated for th e purpose of u se in th e proportio n a l model to predict POX concentrations . As a r esult of the comme nts of BAQC to th e draft of the BREIS Tech. Memo. No.3, which showed an error in the calculation of the base year of th e emiss ions by weight of HC, the fina l BREIS predictions for He and POX levels for the year 1980 and the HC l e v e l for the year 1995 were adjusted upwards 54 . �from those shown in the final EIS which had been based on th e 1 and 2 earlier BREIS draft. (~Appendi~es /0£ this opinion). The use of the correct base year emissions of motor vehicles by weight of 50 . 33 tons for three hours resulted in a change in He levels in 1980 from .7 p . p.m. to 1.1 p . p.m. in alternatives 3 and 5 and from .8 to 1.1 p.p.m. in alternative 4. This change also caused a change in POX levels in 1980 from .08 p.p.m. to . 09 p.p.m. in all three al t ernatives . In 1995 , the reduc- t i cn in the "base year He emissions resulted in a change in He levels from < .80 p . p.m . in alternatives 6 , 7 , and 8 to 1 . 0 p.p . m. a nd from 0.7 p.D . m. in alternative 9 to . O.9 p.p . ro. As a con- sequence, therefore , the national He standards in 1980 as well as in 1995 were found in BREIS to be exceeded in all al t ernatives, including the no-build alternative , and the POX concentrations were found to be exceeded in all alternatives , in- I I ,-- cluding the no-build alternative, in 1980 , but to have been (77) met by 1 995 in all alternatives. The same proportional mode l ing technique as is used in determining HC ambient air concentrations is also used 1 I I , to determine the estimated future ambient air concentrations of Subsequent to the preliminary calculations shown in the draft of BREIS Tech. Memo. No.3, updated emission projections f r om BAQC for N0 2 resulted in an overall reduction in projected regional emissions of N02 ' The revision resulted in a reduction i n the projected ambient air concentrations of N0 2 fro~ 0 . 06 p.p.m. t o 0.05 p . p.m . for all alternatives in the and long term . These projections did not include the effects of ~elaxing the federal emission standards for N02 on 1976 cars or the control str ateg i es of the SIP. These revised calculations indicate that the national ambient air quality standard for NO 2 wi l l be (77 ) See Table 11-2, BREIS Tech. Memo. No.3 , attached as Appendix 4 to this opinion. 55 �, ~ , .. met in both the near and long term for all transportation alternatives studied. At the time that the stud ies were being conducted, it was believed that emissions of 502 from motor vehicles were not a significant factor in th e concentrations of 502 in the ambient air. That conclusion was a reasonable one in light of scien(78) tifie knowledge at that time. Through th e use of a similar model, the conclusion of BREIS in Tech . Memo No. 3 was that the particulates standards in the ambient air we re met in the , near term (1980) and the long term (1995) in all alternatives studied. The plaintiffs have not challenged that finding. The conclusion of BREIS as to the specific leve l s of POX in 1980 and 1995 ar e subject to doubt . The reduction mod e l utiliz ed in BREIS (Figure VI-16) appea rs to be inaccurate at ; 1 the endpoint of th e curve in that it ends at approximat e ly 0.075 p.p.m. rath er than a t O.OB p.p . m., the POX ~tandard. , Since the reductio n model is designed to show the percentage of reduction in HC emissions necessary to reach the POX standard of O.OB p . p . m . , it is inconsistent with the mode l's very purpose other for the endpoint of the curve to be anywhere/than at O.OB p.p.m. The court has, furthermore , made a comparison of the h o rizont al scale of Appendix J with a measurement of th e distance from ; th e endpoint of the curve to the neare s t value marking on the horizontal axis and has c o ncluded that the reduction curve of Appendix J in fact terminates at the equivalent of O.OB p.p.m. although the scale on Appendix J is not so marked. No explana- tion appears in th e record for the apparent variance between (7B) Recently, empirical observations have indicated that catalytic converters required by EPA r egulation to be installed on new motor v ehicles to r educ e emissions of CO, HC, and N0 2 , have significantly increased emissions of 502' As a result , on March 5 , 1975, th e EPA Admini s trator extended to the 1978 model year the CO, HC, and N02 new car s tandards which were· previou sly to be met by 1977. 40 F.R . 11900 (March lA-, 1975). Thes e extensions in the deadlines for emission controls o f new motor vehicles wi ll have an as yet unknown effect on the con c lusions of BREIS as to "the year 1980. 56 --. . • • �.. Figure VI-16 and th e premise of the model. Indeed, thi s apparent variance was not even commented upon by plaintiffs ' counselor witn esses . This shift of the endpoint of the c u rve , however, on the horizontal axis has the effect of slightly lowering the predicted concentrations o f POX if one were to attempt t o use th e reduction model by calculating fr om a known percentage He on the vertical axis to a predicted POX concen- reduction in tration on th e horizontal axis. ~h e Both p l aintiffs ' counsel and BREIS itse lf have attempted to u se Figure VI -16 in this . manner to obtain predicted POX concentration levels. whil e there is no direct evidence in this record on the point one way or the other, the court has a strong suspicion that the reduction model cannot be utilized in this ma nner, either through th e method of calculation employed in BREIS or through (79) • I 'j the method of calculation argued for by plaintiffs' counsel . Even if the reported BREIS conclusions a s to the predicted specific l evels of POX concentrations are in error, whether because of an inaccurate reproduction of the c urve 's endpoint 1 on the reduc tion mod e l or because of a~ improper use of the red·uction model, the error is not determinativ e under th e facts in this case . The specific levels of POX conc e ntration s predicted in BREIS 'see Appendix 4 to this opinion) wer e not essential to > (79) At final argume nt, a conflict developed between counsel on both sides as to the proper method of calc u l at ion to b e employed to predict spec ific concentration levels of POX through the use of the reduction model . No evidence bear s directly on a resolution of this conflict. While, as noted above, the court has s trong doubts that the mode l can properly be utiliz ed in thi s manner by either method, th e - point need not be resolved for r easons stated infra . 57 �, - L ·. the conclusions reached by the Regional Administrator of FHWA in his determinations of August 9, August 13, or November 11, 1974 , nor to the consistency determination of RPC relating to the transportation program and plan on ~une 26, 1974. This is true because those responsible officials did not rely upon the specific levels of either POX or He which were predicted in BREIS, but instead , based t heir conclus ions on the substantial reductions in He (80) emissions predicted in BREIS as well as on other factors. As previously noted, the regional or mesoscale consistency determination, under the regulatory scheme illustrated by 23 C.F . R. S 770.204, is made through a process of review by the FHWA Regional Administrator of the consistency of the urban transportation plan and program with the approved SIP as a part of the FHWA Regional Administrator's responsibility for proving or certifying th e 3 - C Process . The EPA Regional Administrator is to 'consult with the FHWA Regional Administrator in the (81) latter's review on the record of the policy board ' s deterrnintion annually of the consistency of the then current trans(82) portation plan and program with the SIP. I (80) Based upon the reduction model, a 70% reduction in He is n ecessary to meet POX (and for all practical purposes HC) ambient air standards. The percentage reductions predicted by BREIS are shown on a chart which the Regional Administrator, FHWA , attached to his consistency finding on August 9, 1974. The cha rt is attached as Appendix 5' to this opinion. In none of the alternatives did BREIS predict that the reduction of HC emissions would reach 70%, but it predicted net reductions of from 60 . 6% to 65 . 9% for alternatives which included the Segment. (81) The "Policy Board" is defined by 23 C.F.R. S770.201(e) as that group of local officials , individuals, or representatives of agencies or organizations which has been designated by the state to provide policy guidance and direction in the conduct of the urban transportation planning process in an urbanized area ." In the Baltimore region, the policy board is the Regional Planning Council. (82) 23 C . F.R. §770.204 (a) ( 3). Any significant deficiencies noted by the FHWA Regional Administrator in a degree of coordination in the planning proces s between planning for transportation and air quality planning are grounds for withholding 3-C Process planning certification under 23 u.s.c. S 134. 58 ,. •• �.. On June 24 , 1974 , the RPC , the policy board referred to in 23 C.F .R. §770 .204 (a) (2) of the Interim Air Qu ality Guidelines, adopted a resolution as follows: " Based on the extensive a n a l ysis conducted t o date, the tran sportation plan and programs have been found t o be generally consistent with the goals of the air quality implementation plan for the Bal timore "r eg i on . However, further s tudy of individual e lement s of the tr a n sportation plan may b e r equir ed to determine projec t l evel consistency. Specifically, both plans call fo r th e improYement of mass transit, r educt ion of futur e vehicular travel by encouraging carpoo lin g , and traffic f l ow improvements. Efforts are now under way in the region to implement these programs. In addition the GDP a l so recommends encouragement of bicycle tran sportation and th e Department of Transportation has introduced legis l a t ion t o i mp l ement a periodic motor vehicle ins pection program as r equired by the Environmental Protection Agency promulgation. Fur t her analys i s to d e t ai l tran spo rtati on control elements of the air quality plan and t o determine the long range implications of several land use plan transportation a lte rnativ es has been initiated. Th is statement will be revi ewed annua lly based on th e latest available informati o n t o ass ure that the tr anspor t ation programs are consistent with the air quality impl eme ntation plan for the Baltimore r egion . In addition, project l evE< l a.i1a.lysis as required by th e Fed~.ca l Hlyhway Administration air qual ity guidelines ' and other fede ral and state regul ations will be conducted to analyze in gr eater d etail the ai r quality impact of specific transportation improvements ." I The Transportat i o n Steering Committee o f the RPC was 1 delegated the re sponsibi lity to act for RPC on ·th e determination of consistency between th e SIP and the transportation plans a nd , programs. On June 26, 1974, the TSC found the regional trans- portation plans and programs and the SIP t o be consistent. in part The finding was ba sed/upon the BREIS Tec h. Memo . No.3, as amended a nd supplemented , in part but was a l so made after the solicitation of comments from BAOC as well as from other state and loca l air quality agenci es . Nowhere in the RPC con- sistency statement was there a recitation of spec ific predicted l evels of concentration of pox. Instead, reference was made t o the fact that th e BREIS estimated air qua lity leve l s , with and ~itho ut projec ted highway c omponents o f the GDP , that these data were considered by RPC, and th a t RPC , in c o nsidering the 59 •. . '. �• L. .. BREIS air quality results, noted that no transportation ( 83) control strategies BREIS study. were assumed to be in e ffect in the The RPC statement then went on: (84) "However , if the se elements are assumed to be in effect, then the following conclusions can be drawn: "1. The carbon monoxide standard would be met by 1980 under all assumed highway alternatives eve n if the additional control elements are not considered. "2. The photochemical oxidant standard would probably not be me t by 1980 under any of th e assumed highway alternatives. However , if additional use restriction s are taken into account , then the photochemical oxidant standard could be met by 1980. "3 . Under all assumed highway system assumptions, carbon monoxide (based on a r easo nabl e level of analysis) and ~ochemical oxidant standa rd s are projected to be/in the 20-year planning period, i.e., the year 1995. Under all assumed highway apsumptions, nitrogen oxide standards are projected to b e met in the 20-year planning period." (Empha sis supplied). "4. In short, taken as a whole and in context, the RPC cons istency findi~g, made in good faith, (1) r ecognized the haza~ds of predicting POX and HC concentrat ions under the existing state of the art, (2) acknowledged the generalized BREIS air quality predictions of substantial reductions in concentrations of air pollutants without assuming any • , ~ansportation ' controls the federal emission standards, (3) concluded , a s did BREIS, except that the implementation of transpo rtation control strategies contemplated as part of the GOP would furt her reduce the l evels of HC to allow the attainme nt of the POX and HC standards by 1995 and probably by 19 80 , (4) noted the continuing 3 -C Proces s studies relating to th e relationship of the tran sportation pla n , including the - 3 - A System, and air qualit~ and (5) found, b ased upon all thes e considerations, th at the transportation plan was "generally consistent" with the SIP, recognizing, however , (83) Except the Federal I:':otor '\-eh icle emi s sion cO::ltro ls . (84 ) I.e., -_ . the trans porta tion contro l strategies. GO •., . , �-. . that annual review in the li~ht of the latest information available would be necessary to assure continued consistency of the plan with the SIP. There appears to be no dispute that the technique of predicting a violation of POX and He standards is_ of as yet empirically unverified validity at the ~ .~wer levels of He ( 85) concentrations. In fact, the EPA Admi nistrator has expressed reservations concerning th e adequacy of the proportional modeling t echnique to analyze accurately the impact of a s ingl e highway facili.t y or project on ambient air concentrations of POX and N0 2 , stating his inte ntion in the near future to announce alternative methods for evaluating s~ch impacts. of the current methodology in ( 86) The .uncertainty predicting the exact degree of impact upon POX, He, and N0 2 concentrations of relatively small I approaching the required 70% in the ufull build Jl alternatives J and of N0 2 emissions in 1980 and 1995 exceeding the required degrees of emissions of HC and N0 2 , combined with the fact that BREIS predicted reductions of HC emissions in 1980 and in 1995 pe~centage reduction without taking any credit for reduction s which would be acnieved based - upon the implementation of transportation control strategies , together with the fact that the 3-A Highway System is being built in sections and a section-bysection analysis is anticipat~d to determine the air quality impact of specific proposed highway sections are factors that make it impossible for this court t o conclude that the RPC committed a clear error of judgment in finding the transportation plan and program, as of June, 1974, consistent with the SIP. - Even more i s this so when due weight i s given to the (85) For an illustration of an acknowledgment of the scientific unc ertainty in this area, see the discussion in State of Texas v. Environme ntal Protection Agency , supra, at 298-301. (86) 39 F .R. 25295 (July 9, 1974). 61 . . �• .. facts that continuing studies, previously partially enumerated herein, are being conducte d on matte rs relevant to air quality in the Baltimore region and that the transpo rtation plan is reviewed annually, if not constantly. On August 13, 1974, the FHWA Regional Administrator wrote to the EPA Regional Administrator, noting that the final consistency determination mad p. by the RPC had been made on June 26 , 1974, and that after revi ew by FHWA, he was of the opinion: "There has been adequate coordination in the planning process between planning for transportation and air quality planning. The discussion of 'technical work scheduled for FY 1975 in the final consistency statement ' indicates this coordination will continue and actually there probably will be increased coordination. tiThe analyses indicate that the required hydrocarbon reductions cannot be achieved by 1977 without drastic measures such as gasoline rationing: however, with the use of control strategi'es·, the required reductions can be obtaine d by 1980. The ~ubmission indicates implementation of the c o ntr o l strategies is under way. I ! "Based on the work that has been accomplished to date and the fact that additional work is to be undertaken, we believe the transportation planning process is adequate for certification purposes . " T~e comments of the Regional Administrator of EPA were solicited and a meeting between the two regional administrators was invited if felt desirable by the EPA Regional Administrator. On > October 22, 1974, the EPA Regional Administrator replied to the aforesaid letter, disagreeing with certain of the FHWA Regional Administrator's conclusions and finding the transportation plan and program to be inconsistent in certain specified ways with the SIP . By letter of November 11, 1974, the geputy Regional Administrator of FHWA replied and provided rational answe~ to the points raised i n the letter of OCtober 22 , 1974. Against this background, the court finds that the approval by the FHWA Regional Administrator of the Po licy Boa rd's consistency determination of the tran s portation plan and program 62 ., , _. \ , �, ' with th e SIP wa s made in good fai t h , . considered the relevant factors, and cannot be said to constitute a clear e rr or of judgment . Whil e thi s c o u~t has c onc l uded that , un der the applicable r egulations , the mesoscale consistency anal ys is of a highway project is t o be made as a part of t he 3- C Process and is not required to be made by the Regional Administrator of t he FHWA unde r 23 C.F.R. S 770 . 204 (b) (3) (iii), the fact i s here that th e Regional A~inistrator of FHWA did, even th ough not r equired so to do, make ·a mesoscale consistency determination. His deter- mination was bas ed in large pa rt upo n the mesoscale studies, as updat e d, se t forth in the final printed version of BREIS Tech. Memo . No . 3. "He specifically d ec lined , however, to r e l y upon (87) the BREIS predictions of HC and POX l evels of conce ntr ation , r e lying in s t ead upon the predicted percentage reduction s of emissions. His mesoscal e consistency finding of August 9 , 19 7 4, stated in pertinent part as follows: J "Although it is unlike ly th at the required 70% total overall reductio n in hydrocarbon emissions will b e achieve d by 1977, the construction of th e 3-A System wi ll not interfere with reductions necessary to achieve or maintain the photoche mica l oxidant standard. . nBy 1980 the 6 to 9 hyd ro carbon emi ssions f or motor vehicles wi ll be reduced by 75% from the emission l eve l in 1972. This deduction does not account for the implementation of the tr ansporta tion control p lan except for th e federal motor vehi c l e contro l program (FMVCP). (87) PX 228, "I-95 Baltimore, Caton Avenue t o Russe ll Street, Consistenc y with SI P," ~8. The Administrator also said in that paragraph: "Th e regional projections of photochemical oxidant l eve l s for 1 980 and 1 995 given in BREIS Technical Memorandum No . 3 and in the 1-95 Air Quality Assessment are tentative because of the unc e rta inty of projection methodology which relates hydr ocarbon and nitrogen dioxide l evels to the levels of photochemical oxidants. 1I 63 .. ,. �1- .. "Overall hydrocarbon emissions should be further reduced through the implementation of controls on stationary sources such as gasoline handling and storage, which were not considered in the study. ' , "The nitrogen oxide (NOx) emissions for motor vehicles w.ill decline from 30% of the total NOx emissions in 1970 to 16% of the total in 1980 and to about 8% of the total in 1995 . The Baltimore AQCR is classified Priority 3 for NOx which indicates that current levels of NOx are below the national standard." The mesoscale consistency determination of the Regional Administrator of FHWA also noted that the BREIS Tech. Memo. No.3 did not take into account the VMT reduction measures of i I I I I the SIP and that these could be expected to produce reductions in the projected VMT which would, in turn, reduce the predieted hydrocarbon emissions. The mesoscale consistency determination by the FHWA Regional Administrator, this court finds, was made by him after a good faith consideration of the relevant factors and does not constitute a clear error of judgment. While one might reasonably disagree with his conclusions, the responsibility for making policy decisions in this area does not rest with the court. It is not the court's function to substitute its judgment for that of the Regional Administrator of FHWA. , Citizens to Preserve Overton Park, supra, 416. Certification of the 3-C Process , VII Plaintiffs have asserted that the so-called ".3-C Process" for metropolitan Baltirno~e has not been recertified as required .by law and that·, therefore, no PS&E approvals for any portions of the challenged segment of 1-95 could validly have been issued. Under the provisions of 23 U.S.C. § 134: " • the secretary shall not approve under S 105 of this title any program for projects in any urban area of more than 50,000 population unless he finds that such projects are based on a continuing comprehensive 64 �transportation planning proces s carried on cooperatively by states and local communities in conformance with the objectives stated in this section. (88) In Movement Against De struction v. Volpe, supra , " 361 F. Supp. at 13 93-1396 , this court previously held that FHWA, as the delegate of the Secretary of USDoT, properly certified in 1972 that there was a "3-C Process" in the Baltimore region which satisfied the requirements of 23 U. S . C. § 134. On July 11, 1973, the Acting Regional Federal Highway Admini strator informed the Division Engineer that the 3 -C Pra c ess for the Baltimore Urbanized Area was recertified. On July 12, 1974, a _memorandum from the Regional Adrninistrator of FHWA to the Division Engineer of Region 3 granted an extension of the time for 3-C Process . :certification of the . (89) urbanized areas in the Region until August 15, 1974. The reason for the extension was the delay in requests for recertification caused by the n eed of th e urbanized areas to obtain 1 air quality analyses, coordinate with the cognizant state air quality agencies, and obtain action by the policy boards under the new Interim Air Quality Guidelines, in addition to accomplishing th e normal heavy workload preceding the beginning of a new fiscal year. On August 12, 1974 , the FHWA Regional Administrator in- i · .f ormed th e Division Engineer for Maryland that the Baltimore, Maryland Urbanized Area 3-C Process had been recertified, the rec er tification being conditional pending the resolution of any comments that might result from the consultation with EPA ( 90) which is required by the Interim Air Quality Guidelines. (88) In 1 971 , FHWA promulgated Ins truct ional l-1emorandurn (1M) 50-3-71 requiring the certification to be mad e annually (PX 245) . (89) Plaintiffs d o no t conte nd th e r e ,...as a laps e of certification bet,...een July 1 and July 12 , 197 4. (90) 23 C.F.R. S 770.204 (a) (3). 65 . • �L .. On August 13 , 1974 , the Regional Federal Highway Administrator forwarded to the EPA Regional Administrator a copy of the air quality consistency submission for the Baltimore , Maryland Urbanized Area, .noting a conclusion that there had been adequate coordination in the planning process between planning for transportation and planning for air quality. the court has found in Part V.I As of this opinion , EPA replied to this letter, and the FHWA Regional Administrator in turn responded to· EPA, affirming his earlier finding of consistency between the transportationplan and program of the Baltimore urban area and the SIP. The actions of the Federal Highway Administrator of Region 3 in extending the time for certification for a period of approximately one month and in conditionally certifying the 3- C Process for the Baltimore urban area was consistent with FHWA national policy, carried out in other Regio ns as we l l. The cou rt has not had pointed out to it by counsel , nor has the court ' s independent research revealed, any statute or regulation prohibiting the procedures followed here in 1974 in postponing the time for certification, in the one case, and in conditionally certifying in the other case. The annual recertification procedure, not expressly mandated by 23 U.S.C. S 134(a) , was begun by FHWA, under IM 50-3-71 , as a management tool to help Regional Administrators improve the planning process in their respective regions. IM 50-3-71, not intended to be a formal regu l ation promulgated by the secretary of Transportation and publ,ished in the Code of Federal Regulations pursuant to 23 U. S.C. § 315, does not in terms prohibit either an extension of time for certification nor a conditional certification. Where regulations or \rritten procedures are either silent or amb i guous, great weight will be given to administrative custom and interpretation . Power Reactor Co. v . Ele ctricia n s , 367 U. S. 396, ·4 07-408 (1961). 66 ,\ • ' , .. ., �.. After conducting a substantial inquiry, the court is • satisfied that all required procedures were complied with in the certification of the 3-C Process for the year beginning on July 1, 1974. VIII No contention is made by the plaintiffs that the FHWA Regional Administrator exceeded the scope of his authority in certifying the Baltimore urban area 3-C Process. The court finds that the Regional Administrator's decision was within the scope of choices he could legally make -and that he had sufficient information before him to have reasonably believed I I that the action he took was within the limits of his authority. I , IX While admitting that the 3-C Process in the Baltimore urban area has all of the necessary component parts required I by l aw, plaintiffs contend that the results of that process I are so unr eliable and so clearly in error as to render the I decision of FHWA, through the Region 3 Administrator , a clear error of judgment in certifyi~g it. As a legal matter, the relationship of th~ resultsJin terms of specific plans produced, of the required comprehensive continuous and cooperative , planning process to the required certification is not a direct one. The FHWA Regional Adminis- trators do not directly regulate or approve the plans produced by the 3-C Process but instead examine the process itself to assure that the process is a comprehensive one , carried on continuously with reasonable reevaluations of prior plans, methods, conclusions, and assumptions, and is conducted with the cooperation of the responsible l evels of state and local governments in the respective urban areas. cess lihile the "results" of the 3-C Pro- might be examined in a broad sense to determine ,...hether the process was functioning with proper consideration for all the factors necessary to make thc process comprehensive in 67 --.,. . \' .. �·. nature or to determine whe ther the proc ess was contiuous and cooperative, the "results " are not examined pursuant to 23 u.s.c. S 134(a) for t he pur pose of directly approving them . The Federal Highway Administrator said it well in his intro due tory discussion of new r egu l atio ns relating t o environmental impact and rel a t ed statements , promulgated on December 2, 1974. He said: "Section 134 of Title 23 of the United States Code set s forth th e Fede r al interest in being a£sured that th e state and local governments cooperatively engage in a continuing, compre~ensive tr.ansportation planning proc ess (the '3e' proce ss ) which will assure that the transpor tation s y s tem ultimately developed will serve all jurisdictio ns efficiently and effectively . The Secretary of 'Tran sportation is directed to 'cooperate ' in this process but he 'L i s not placed in control of the proc ess . The Federal Government does not direct th e adoption or take any part, e ither f ormally or informa lly, in the selection of any particu lar plan but merely revi ews the pl ann ing process t o assure that it is continuing, comprehensive and cooperatively undertaken . Various proposals inc lude-d in a given plan mayor ma y not ever (91) surface in the form of Federa l-aid projects." , · • As a factual matter, in the previous parts of this opinion 1 ! I I the court has found that the challenged me thodologies and conelusions utilized in formulating or analyzing transportation plans and programs unde r the 3-C Process for the Baltimore ur ban area were within the state of the art. Accordingly ! there wa s no clear error on t he part of the FHWA Re gional Administrator when he determined that the 3-C Process was functioning in an . appr opriate and proper way. . decision of the This court finds that th e/Regional Administra tor of FHWA, after a good faith consideration of the relevant factors, to certify the 3-C Process ,~as a proper one und er 23 U.S.C. S 134(a) and that he did not commit a clear error of judgment in making that determination. (91) 39 F.R . 41804 at 41805. 68 I �.. Conclusion Plaintiffs have argued forcefully that the defendants or their agents used scientifically inadequate methodologi e s and improper factors in the traffic and air quality predictions which form at least part of the foundation for their decisions. Defendants have contended that the techniques, methodologies, and factors utilized by them in the decisions made were at least within the state of th e art. It is not the court's function to decide, as a matter of fact, which factor or methodology is the more scientifically correct, but to d e cide whether (1) there is any reasonable ground for the use of the factor or methodology used, (2) the factor or methodology used was used in good faith and not solely for justifying a preconceived result, and (3) the use of the I I I ~actor or methodology produced a result which could have justified rationally the various decisions required to have been made under law. All these questions have been resolved in the defendants' favor. In concluding that the plaintiffs cannot successfully challenge in this suit the construction of the segment of 1-95 1 ! from Caton Avenue to Russell Street, the court does not intend to indicate a view one way or the other as to the wisdom or the legality of the future construction of other sections of the ~-A System of highways in Baltimore City. The wisdom of such construction is a matter beyond the jurisdiction of the court and rests appropriately with the elected officials of Baltimore City initially and secondarily with the various officials of the local, Maryland, and Federal governments in the exercise of their expertise in transportation planning and execution . The legality of such construction will await future political and administrative decisions, tested by statutes, regulations, and scientific knowledge then extant. 69 �. , , ' An appropriate order will be entered herein consiste nt with this opin ion. ~\ 12 /\ ':'0 D~'r. '\ "J , .Md1,/' A James R. Ml. er , Jr. ,. 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'.310 .012. 1.374 .2'4 t4. '1 2.3 14. 4- ,~5 ... lSf4. '0. 103 ~ . - Suwrba:\ Counties . 024 1 .SISB .271 .570 Outatc!.e Beltway 21.3 27.2 ... 302 .• (87.0 12.0 . 1,841 I J~l " 101 .02" 1 . 571 2 . 73 .585 ... iSO,3 23 . D 2'1 . 2 '188 . 0 18.8 2.nn -1,428 &00 4f,9.!I Cr O ~,5 2, ~n,'100 1. ~62.000 1,1&5.200 S 'Jbu rb~n . -~ .-- IZS -'_... .. _ ... . " 101 .53~ .021 1. 'E5 . 272 ... 159 . 8 21.1 27.0 7U.0 18 . 7 :,6'13 4.4 22 ~1 :: ,200 I. S5G.J'JD '" -- -_._ ...._---_._ -_. 1.9.. 0 . 138 I ,C30 1.023 .!lS 7 .DO . 20 .lS9 131 2. 33;) 318 • (.:'.' 3.02" I.HI2 1-7 6~ 311 ~ m!ATS Are:l .10 '1.20 17. 00 2 .80 10.CO 2.0 I II i .l5I S80 .166 1 .035 2.::53 •• 153 .OS .., '1 .(0 11 ,00 ,., 30B .3 50 . 4 5&.4 9.3 9. 3 :;'12,2 ('1.'1 5-t . 9 21.00 :!(j,O 1. 12:1.0 • t. '1:;C 8,33~ l, 02J .~ CO 2 , ~: 3./lO:0 1.i&S.0 2S.G m,JATS An.;! 4. 729 8.320 1.02 ".~()0 R-;-""C' n 2 • ~ T:f."b1i1i I,D1 0 . ' 201.3 104.6 '1 813.0 10.8 17 .8 3 . 238 5 , 131 2.070.1 C;0 t!l1,200 ~3,0 8.:! ~ 2 ~ .... "" ' ... 131 J~l l. ::~ 1.0:3 .i ( 1.£!:) .TO .CC 7 . 1' ll.CO 3. 1 H .t 56 . ~ 3'.0 ::~ !I.:> 1. 1ca.0 ') - ,""- '0 ". X 1i o I ~ I _+--" , i~~1~~~______~N!OC'O-~A~__~C"'~o~.~'~', . __~c~o~m~p~1~,~"~'-"A~_t---= .~~ I'o·i~--_:--c:OC3C-~A~-----Cc "" ."n .~___= r.=~" " .• ~~ E~ I. 1~ ' oro '~ i , C~o~m~p~I~,t~'c3:- A __1r_-= ="'~t"n~.L---____~~ ~! E' I : N oC3C-~A~____~CO'~o 'C'"·r.C____~ . rO-'O'·C'C:o-~'~.I ='" I · C"'"c" · ...---.-I" ·---~-______-;r.--- - ,'. -'"'",, _ --- . �.' , No Other COP provcments and CDr D70.200 Rc::Ii.l S.lc~ ( 24 l!~'.l (3) l ' r:lnGil 5.' 1.4.017 Qu:.l i~:t o! Nc:~d:-. I.' ,I ,';' '" . tr:,. -,I"I:!r .. l, 1I :'! Il\'ily. £,JJjo:-.~/c!:ty) 1. oeO 1.759 1.M3 OJ, " 'HI) 220 !3 1.000 3D:; '" 1. 094 ' 1. 709 . 377 2 . 237 BaltImore City 15 .3 15.1 1.' D1.8 Inside Bl!ltwtly U5.0 a.1 Dn1tlmor e City 2,G17 7,OoJ~ 1,031,aOO GOG , 500 B3ttimoTo CHy .35oJ 87. 1 H.l B.2 1.7 '1 86. 0 7.7 lI,oJ7!! 38' ,318 1.752 1. EG I 1.3:58 3. 2 . Hill (Ho;.:;r!l C~ !lolu / c!3!! ) l'.~".· . l;,t. o ~, · :': ' !]~.':::. (;-.:I::.:.r,: c! 1I';\: ::r · "~f. !1! I·: .. ·~r ":0"" l;,,;,::':; :t)t:~ '.\' ;, :' :~ '-:"l" ! j:l~:!:utbn :l.l C(; r:".:r. c: rc:i~l ::.,,~ ~: :. ,,[ St .lcc!.l rc! ) :t.::i!ut:::lll1! !'::!!.;:.:~ it. -r-;;'(':.:.. :; ~:~jGC: DO:il:re >'.~.: .' r ... ?:ochc:rr.ie:ll C;,ir.bn:$ (ppm} :~:.!1l-E :.;or. o:dde bUl'lJ) l: yt: t o.~J:ix.:'13 (pp::-.) r. :l r .,..~. C.:l'i:on ~!ono x:de (1'1'.:;" 1 :-- .;r.;r) "'.::- i'~rtlcul:t C:G /d,: ~.~~ :~ r \' clli.:::le f.:T.I:,io :u (ton:/d~y) C:d>J;1.l\:or.oxide 610.1 iiY::l1x: r iJon.: ; 126.0 i ~:t rQ .r;r. :l Oxldc:a ~!I.!I P.::rc~n: (1!\cUOl:-:d::) Vll i-';: ,,;!c !Iou rll 0: Tnvcl \ 'ct.i-;:c ;.H1e 3 of Tr~vd :'r.·:: :I .,~~t;'l:lon (r..l.!110113 et loeD col13nl PO~::: ;1 : I :J 2,5C,1 ·1-17,3e o r::".,j> ltl:" ;:lC III P;>.F:·Il G (;:'! UHor,30t I ~~~ e ,;l!:. ~ t;l ~S7 ,!lOO !lO4,!lOO -iT ~j,;;i:\t;;n- ~,~eio":"'nol:lle .\ ' s 'H 1.516 1. 933 1. 753 . 326 '.7 06 .0 13.8 14.1 363.0 2,32 0 e ;521 ~33,100 sa~,600 oJ87.0 12 .0 . 3!1:!.4. \ LOU 2,57 6 165 ,2 00 44.9, DOD 2.3 14.8 1., 1 '" 264 1.9!13 1.875 .3H Z.199 H.7 14.4. " I,Oli2 ,ZID .012 1. 314 . 253 ." 14.4. 811.8 350 . 0 8'. 0 7,170 583,000 !lOa,300 I. , , 7.&64 20. a • 95".0 2$.6 4..sn O.&~O i22.CliO 1,C70.3CO provelr,,:t,:, r:>: cCl't J - A . OG7.0 20. 1 , ,010 101.3 len ., ' " J ..." .:!.lili . :i22 . 032 I .!lnn 11'1 1,777 lO' 1~4 Subu rb:tn COUl'lt!l!:\ . 507 • . ~~D L !lOn . 02:1 Outoldc: Bc:ltw:lY 21 ~ l,O OG I~B lCl • &07 2.0,11 , )1 1 ... 1,053 122 16. .:1:2 .(jol:J 2. H: .0,::'1 17 .3 2.0 1$ . 2 ilL 5 . 70:l, 10J 2, l1:!.~~ O 12,5 13 . 11 1.0 12.:5 13.4 1 I I ~ncl CIlP Til'.r (.WI" ~ · "~,: ~. --. 62.0 Outside Bcltw3Y 1,179 . 0 21.6 . 5uburbMI Countle.'\ 4. . 272 7.&S!! 1 , 105.0 I, t .: . " f>:o Other GOP T pr(\v(,;lr. rr.l.3 nJ Subur b:tll CouTltkG 1.77~,3i.iO 1,&33 . .. 00 65:1,"00 65!l , OOO li'I b OU:!::r cor ..l.. f ~"'·(''"(' ... +__-, ">'--"'''''''-___ '. ________________________--lJ'''x"''!"''"'"'-JL____'"~!!e:Pl'~O~V"'~m'"" __..!'""""""oO',,,.m",o""', __..!"'·"x"·,~'O"~..;'!:-~ __"lmo:"""'O'V~'"""" , ,n"'!. ~ ' A'~n~',.,-__ No Other COP _ ____~'~1~'!'",~'~i,:.~~________f_--l---------_,~'~._----,,~~.",;;:x_--_."'~'p;~C---C;;;J';';cr.~----t---c--J~------~~~"~.---~~;~'~';;;:;----,",=k'",::~--r;:;~'~ ~ . ,\ I , ' No 3·h Complete 3-A AU GOP 11tI - · Ccmpletc 3-A No l-A Ccmr~ctQ 3-A All CDI' ImCO:'l1I.; ';t~. �l'h~·,: ~ .. ,)I. ~ , ... I (OI: ! ~· .:Ill Ir.d .. :.: (C':O:" r.iCfli, r ef,ln" ', I ·(.r:'~i~ l ion - 5 (, 11 ~ h i VIIY t.:.~. 3/j'c:I'l· ) \','":;I~ V " :' I.. ,'II: SoHI! \\':l:ste V;:o. lcr Fiow (million,; of c;!lon./day) \I':o.ler Need. (!:Iili:"",, of e.ll1o:l./d:lY) So:id \'i :l~\e (t!'.oll ur.d!l 0: ! n~I,l"lri::l1 I'c;:, I I 2, 7S2,~OO 1.217 ,200 211.8 6,107 3,288 BMATS Are:l 30 .2 29 . 0 3.' 3.3 .TO .DS 1.80 .lD l,UO 201 .. .14l .DS ... '.(,0 .HO LOU . 2.717 221 lO' Ul 1.1118 1.9111 1.210 2.014 •toO BMATS Area .on ... 5.00' 228 '" 2, 031 1.270 .J 52 2.IB!I 1 .040 .on 4. . 30 .SO 3.' 3. T a ,50 20 . 8 32.1 120,9 10. 0 1.l:!:I . 0 3<1.2 1,4.51 15. 876 185.1 21.0 30.6 1.331.0 10.6 32.& 1.2\3 15.371 3 .024.100 1 .203,000 tlllprovr.rr, ~ n l!ll • <':omplNC J lind Cpp __..._ ------------ -'--_._._ --'" ITT 2.607 . 1£8 1. 701 ,D34 1.11l • • 80 11,00 .IRe 1. 0:'10 1 .023 .901 1.20 21,00 .., 27.& 28.8 27.B 201.l 104.,0 116.1 189.1 781.0 10,8 6.:189 14.709 1.010.~ 1 . SU,O 11.11 11.8 14.137 .5,137 2,!130.0DO 1,255,000 Reclon 2.&65.200 1.206 .400 T No Other. GOP Impl'ovc l:le ntl :l-I\ All (;J)r improvcrra;nio Exe!:!)t loA •• _,,:,,~u>pu;(e DMATS Arl!l . No Other COP Improvementl ~~ ~-I\ , 2,070 ,100 897,200 Exi:Jtlna I .--.--- - -_. Cnplt::l ~"lac>Dougc (Ho~ b.; In l;:xc U's or 5!:u!.dOlrd) Reslde r-t io.l Commercial 1n:l:l1ullon::l1 Nel::;e Photochcmicd Ox kbnb C?PI'D} (P?nI-& "'~unl H y<!ro.~::IrUons (PPC'l) Corbon Monoxide n),c1rocubons Hilro(;'cn Oxide. PuticuJaICl Aa-- Qu:l.!\ly Car bon Mo noxide (pp:n -l hou:) Cr.r bon j,lonoxide T::)~or Vehicle E:nll,ioru(ton AI, 124 Jloured Vchit:lc ~alci:l or Tr::lvel (r.,illioli:ll V.:hh;:lc Houri of Tro.vcl (thouO'lndt:) Pe rce I'! Tnn.1t Tr ~n:'lr':lrt.~: i"n . Sceloc~"nom!e &>O?Ul,.\lion £::lj'!,o:"Dcnt P::I)':'olh: (mUlionl of 1!!6!1 doJl::lul Potcnli.u Rct.:l.ll S.lu (aU:ioll. of l!1U doUara) t.1tern::ltlve . I· I ! • • • �,, • ·r 1 ' ~', " -~ ..,, " .. " • ... ", .' ' . " " . , l \ ':, 1 j .,:j.' ' ,. :~ .1 '. <: ~ l 1 ~i , • " w ,J ., , , i 1 :~ " .; , :, ,; "'1: 3. 4 3.0 2. 8 4. 9 U '" (2) 1995 - Attern3tive 9 No 3- A, No GOP 2 •• 2.' 3.0 3 •• 3. , 3.3 3,0 Riviera Beach (3) - - - - !.... •• - - -_ . • PJ"('uictcd ma:dmum a -hour CO centrlltions are an in thc rangt' or so to 67 pe r cent or thc m3.xlmum one - hour concen.trations. This un!.torm1ty results from thc usc o f Ident1c:al ml'tcrolol:lcal d::lt3. Cor ~II ~ltern~Hves and similar p3.tterntl or percent of tot3.1 daUy traffic lIy hour Input for 3.ti roadways In the study OIreli. Improvementl U 3,4 1!HI5 - Altcm3.t1ve 8 Complete J-A, No CDP imp royemt'nh Improvements '" - Alternative:! '1 No 3-A. All GDP 3.3 4.' 4.5 U (I) AIRMON 1 AIRMON 2 '" 1!19~ improveml'ntl HI95 - Attem:ltive 6 Complete 3-A and COP 19£0 - Alternative 5 No l-A 1980 - Alternattve .. 3-A , less Ft . McHenry Cronin!! I !l80 - Alternative 3 Complete 3- A Year I A Uern3.ttvc Recepto r " . , 3.0 3,0 5.' 5.5 ' .3 7. 0 8, ' Llnthlcum (4) ',' " 1 '.3 4.1 S •• S •• S •• Towson (5) S. , S •• 4.8 '.8 8• • 7.7 7.7 (7) Timonium Maximum Ole - Hour' CO Concentration, ppm '> PREDICTED MAXIMUM ONE-HOUR 1..:0 CONCENTRATIONS AT SELECTED RECI:PTOR POINTS Table VI· 18 .-.1", I Robinson ••• 3,9 ••• 3. , '.2 7.' 5.8 (.) & Toone 3,' 3.7 3.5 3. • U '.0 5. 9 (OJ Ha milton 7. , 7.• '.5 '.4 10.8 11.0 11. 1 (to) Notttnaha m 3.7 3.8 ' .8 '" ',7 3.7 ' .5 011 Garrbon \ I I I I w �.. • :0' • , '. '. , >. " j .. .' l , , '. , I , • , 1 I i , , I I , l ./ I j , ;.' ,j I I I , 'j , I .~ ,J . I > I 1 , , "' ~ 1 U • me:.. n ~~::~triC m"" "",",I arithmetic nl .lx l rnum " 11"", (G , ',.m. ) 3 ' ho.", m,lX (mum B- hou r I -hour Tim e Ave ra,ln/: .,' 59 . 0 0.05 0.09 " 1 7, 4 11. 1 :l 59.0 0 , 05 0, 00 1.1 7. 4 11. 1 C r ns:\ (n c:: J·A h~Ii" F t • 1I.lcllc n t'Y .\lIc rnativc .. ",0' 59,0 0.0 5 0, 09 1.1 7. 2 10 . 8 Alte rnative No. l-A , 63 . 0 0.01 0 , 08 1.0 4.3 G4 . 83. 0 0 . 011 . 0. 0 8 1. 0 4, • G. 5 7 in' 6 Co mpl': h ' ~o J - A. All J - I\ a mI CO P Oth" C D? iOn> 83.0 0.08 -", 08 1.0 5, 0 7 •• ,,: ~, No 8 P ropu r tlona l rn l) tle l ca lcul a tlo n s lus-u rn e tlu: 123 II elm,' a rithm etic mean at th e m al( h num .lIte use d In the Im pl ementation pla n Conve r si on to tlcometric me3n was wi t h th e a.sumption t hat the geometrlc standa rd deviat ion ~ ok: nO l '!! nol Ind urle e . t lma te. o r the eHec ts o r t ranspo r tation control at r lltecl u .ne cont ro ls o n c <: r l:lill ~t 3 I iun:lry 50u r C'l' . ISi'lu ed after SCllll' mbcr, 1973. :Ind a 40 I.I U/m J b:tc k/!ruu ml. " ':II:\\t'l I. G• 63 . 0 0. 08 0.08 0,9 4, 8 7, , I~~;;A 0 ' All p rt' dlc tt'd Y UCS bUt'd on 1072 0. \ (" quality dllia c olle c ted 0.1 'dA MON 1 Qnd 2 . ta tlo nl . A new a tandard m e t hod fo r NO 31 m ('a .~u r ~mcnt may cha nl:e the obse r ved l evels ll t these .tll ti on s . lit ,,1:I1tCc; (ll U/l:,l) (" pm) . ("bo ns ~P . n, , ~~d. ( I'll'" ) C:a rho n MunolCldc t>ol1 ut:1nt • , T able II - 2 MAXIMUM pnEDICTED RECiIONAL POLLUTANT CONCENTRA T IONS .. ., , ppm 60 1l Q' / m ' prim3rY -7S lI G'/ rn' secondary - - 0,05 pp m 0,08 pp m 0. " 9 pp m J S ppm A~~ Na tional , I \ \ I \ t I , ... '. �.. Motor. (tons) ---._.- .. _----- 61.7 _. 611.2 (61.8) +8.3 (+17.8) . 85. :; (811.11) 7 tl 86 . :; (85 . 5) 15.:; 6.9 ALT . -Hi. 11 (+15.7) 65.1 (63.0) ~. 1-· . 65 . 9 (63 . 6) % Increase +11.22 (+13.3) 86.1 (85.3) 15.62 6.98 ALT. _._ .._ - - .-......... (5~.2) ......... _._ .... _ 60.6 (58.0) 11.85 ( i+.l5 ) 76 . :; (7 '+.9) 15·9 7.11 ALT. 0' 1995 6 to 9 a.m . period as given in EPA1s Transportation Control Plan for the • The 66.7 (611.5) +2.011 (+1 0·96) 86.8 (85 . 9) 111.98 6.65 ALT. 9 within parentheses represent calculations based on 1972 hydrocarbon er.tlssions for BaltL~ore region . calculations in Table VI -IS of ERIES are based on a 1970 .BAQC e~ls51on inventory. ·~!~u.i1bers . .. . .. . 61. 8 (59.3). 11. 44 (3.7) 75·0 (73.5) 1:;.0 'f, Reduction Tota l HC ' Percent Reduction (l1obile I< Stationary) 76.11 . (75.0) 11.5 (3.8) . ------- Stat i onary & Other Transportation Percent He Reduction or Increase Hotel" Vehicle Percent HG Reduction 12.99 12 .9'11 11. 9:; 12.6 11. 85 50.:;:;, (117.5) ' Sta tionary &: Other 111. 68 Transportation , (1:;.5) (tons) Vehicle AL'f . 5 ALT . .. ALT. :; ALT. 1 1970 1980 COHPARISON OF fIOTOR VEHICLE WITH STATIONARY & OTHER TRANSPORTATION HC EMI SSIONS . (Tab\llati on Extr acted from Table VI -18 on Page VI-1I7 of ERIES Technical Nemorand\llll No. :;) , . ~, . , • �• Appendix € List of Abbreviations ADT Average Daily Traffic AMV Alan M. Voorhees Associates AQCR Air Quality Control Region BAQC .Bureau of Air quality Control, and agency of the Department of Health & Mental Hygiene, State of Maryland BMATS Baltimore Metropolitan Area Transportation Study ·BREIS Baltimore Regional Environmental Impact Statement CEQ Council on Environment Quality of u.s. CO Carbon Monoxide EIS Environment Impact Statement EPA Environmental Protection Agency FHWA Federal Highway Administration, an agency of the USDoT I GDP General Development Plan -1 HC Hydrocarbons I IDBe Interstate Divsion for Baltimore City, a division of SHA of Maryland DoT 1M Instructional Memorandum 1 Maryland DoT Department of Transportation, State of Maryland I NEPA National Environmental Policy Act 1 NO Nitrogen dioxide I I 1 2 NOx Nitrogen oxides (unspecified) POX Photochemical oxidants PPM Policy and Procedure Memorandum p_p.m. Parts per million PS&E Plans, Specifications, and Estimates RPC Regional Planning Council of the Baltimore Metropolitan Region, including five counties as well the City SEA Interchangeably , the former State Roads Commission of Maryland and State High\. . ay Administration, an agency of ~~ryland DoT SIP , State Implementation Plan Sulphur dioxide , \' ,_. �- I •• List of Abbreviations (continued) TES Assistant Secretary of USDoT for Environment , Safety and Consumer Affairs TEU Office of Environment and Urban Assistance of USDoT TSC Transportation steering Committee USDoT United States Department of Transportation VMT Vehicle miles traveled , j I , . ' \" " . __ .- -- - .-- -" ...... � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Movement Against Destruction Description An account of the resource This exhibit examines community opposition to expressway construction in Baltimore during the 1970s through the organizational records of the Movement Against Destruction (MAD). Founded in 1968 as a coalition of 25 neighborhood and community groups, MAD's leaders included George and Carolyn Tyson, Barbara Mikulski, Walter Orlinsky, Norman Reeves, and Parren Mitchell. The complete MAD collection at the University of Baltimore consists of 9 linear feet of records, which are described in an online collection database. The complete collection has also been digitized at the folder level and is available in this guide. For this exhibit, 32 documents have been selected from the complete collection. Creator An entity primarily responsible for making the resource <a href="http://langsdale.ubalt.edu/special-collections/" target="_blank" rel="noreferrer noopener">Special Collections &amp; Archives, University of Baltimore</a> Source A related resource from which the described resource is derived <a href="https://archivesspace.ubalt.edu/repositories/2/resources/80" target="_blank" rel="noreferrer noopener">Movement Against Destruction Records</a> Publisher An entity responsible for making the resource available <a href="http://langsdale.ubalt.edu/special-collections/" target="_blank" rel="noreferrer noopener">University of Baltimore Special Collections &amp; Archives</a> Date A point or period of time associated with an event in the lifecycle of the resource 1968-1983 Rights Information about rights held in and over the resource Use of these images is governed by U.S. copyright law. The University of Baltimore Special Collections and Archives makes digital surrogates of collections accessible if they are in the public domain, the rights are owned by the University of Baltimore, the Special Collections and Archives has permission to make them accessible, or there are no known restrictions on use. Due to the nature of archival collections, rights information is not always discernible. The Special Collections and Archives is eager to hear from any rights owners wishing to provide accurate information. Upon request, material will be removed from view while a rights issue is addressed. Contact the Special Collections and Archives for more information regarding this image. Format The file format, physical medium, or dimensions of the resource text/pdf Language A language of the resource English Type The nature or genre of the resource Text Identifier An unambiguous reference to the resource within a given context R0062-MAD Date Created Date of creation of the resource. 2019-09 Extent The size or duration of the resource. 32 documents Subject The topic of the resource Express highways Maryland--Baltimore Urban renewal Highway planning Community activists Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Original Format The type of object, such as painting, sculpture, paper, photo, and additional data Paper Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource District Court Opinion Description An account of the resource In the case of MAD, et. al. vs. Trainor, Richard H., et. al. - Civil Court case number M-74-666 Date A point or period of time associated with an event in the lifecycle of the resource 1975-03-17 Subject The topic of the resource United States District Court (Maryland) Court decisions and opinions Movement Against Destruction (Organization) Southeast Community Organization (Baltimore, Md.) Creator An entity primarily responsible for making the resource United States. District Court (Maryland) Publisher An entity responsible for making the resource available University of Baltimore Special Collections & Archives Type The nature or genre of the resource Text Format The file format, physical medium, or dimensions of the resource application/pdf Identifier An unambiguous reference to the resource within a given context mad04.03.03 Source A related resource from which the described resource is derived Movement Against Destruction Records, series 4, box 3, folder 3, Special Collections & Archives, University of Baltimore Rights Information about rights held in and over the resource Use of this digital material is governed by U.S. copyright law. The University of Baltimore Special Collections and Archives makes digital surrogates of collections accessible if they are in the public domain, the rights are owned by the University of Baltimore, the Special Collections and Archives has permission to make them accessible, or there are no known restrictions on use. Due to the nature of archival collections, rights information is not always discernible. The Special Collections and Archives is eager to hear from any rights owners wishing to provide accurate information. Upon request, material will be removed from view while a rights issue is addressed. Contact the Special Collections and Archives for more information regarding this image. Court decisions and opinions Md.) Movement Against Destruction (Organization) Southeast Community Organization (Baltimore United States District Court (Maryland) https://d1y502jg6fpugt.cloudfront.net/44124/archive/files/295e5c47bf80a0e20ff1733f3b6d685f.pdf?Expires=1792627200&Signature=Q7uf3g-YmkOAfpOXbyRsbPr%7E-su7A6DJyFgMpy9wIe0iTYS2EUlTz4xAVEgxt-xOf9FjJqjrzH2xsZeYxUjBjGO9N8F6SEgbEm%7Eio5M7v1-LfjtE3mo9ljdRwoUFB89xJOmb-HRGFjap85EDUbl1Y3HvlCfgJDtrBnrauVt160zxLAoePn5dBlG2anjj2njkiKp9w8TJkUUIEYS%7ExTshFYFI4r9qbhTLmPRzuYsbRvRfARKlkMzzutqRzCtnKF7m6ynH0sxMP76EXthFLz4RFa91eAnOFpwxLcBLm%7EEF7xNeiVsXXwQ40b7JX08H5I-iuq8IydshFGX8kcpvSkdklQ__&Key-Pair-Id=K6UGZS9ZTDSZM 0389a2986369f3ccdfa8ea1820f08ef6 PDF Text Text - UITED STATES COURT OF APA , N PELS FOR THE F OURTH CIRCUIT No . 73 - 2136 I-1ovement Against Destruction, et aI, Appellants, v. John A. Volpe , et aI, Appellees . Appeal from the United States District Court for the District of Maryland, at Baltimore . James R. Miller, J r . , District Judge. ( Argued February 2, 1974. Decided March 19 , 1974 ) Before BRYAN, BUTZNER and WIDENER , Circuit Judges . John C. Armor for Appellants; Terrence L. O'Brien, At torney, United States Department of Justice , and Lawrence F . Rodowsky, (Wal l ace H. Johnson, AS51stant~ttorney General, George Beall, United States Attorney, Jean G. Rogers, Special Assistant United States Attorney, and George R. Hyde, Irwin L. Schroeder , Attorneys, United States Department of Justice on brief for Secretary of Transportation; Francis B. Burch, Attorney General of r-1aryland , Lloyd J. Hammond, Special Attorney, Randy H. Lee , Assistant Attorney General of Maryland, on brief for State Appellee; George L. Russell, Jr . , City Solicitor, and Frank, Bernstein, Conaway and Goldman on brief ror City Appellees) for Appellees. �PER CURIAl:' : The r:'ovement Against Destruction (r'~AD) along h'lth other corrunun1ty associations and individuals prayed an injunction and declaratory judgment from the District Court in October 1972~ to bar further construction of the "3 - A Systeml1, or seements thereof J of the Federal Aid Interstate System in Baltimore, Maryland , until the defendants -- the Secretary of the Department of Transportation of the United States and the Chief of the Interstate Division for Baltimore -had satisfied the Court that they ,,,,ere com plyj ng \'J1 th the aims and exactions of: The National Environmental Policy Act (NEPA), 42 USC § 433 1 et seq ., The FederalAid Highway Act, as amended, 23 USC § 101 e t seq ., The Clean Air Amendments of 1970 , particularly 42 USC § 1857 et seq ., and The Department of Transportation Ac t, as ... amended , 49 USC § 1651 et seq. A class action was made of the sui t by order of February 28, 1973, admitting as plai ntiffs certain per sons seeking to represent those citizens of Balt imore directly or adversely affected by such construction. The City was also al l m"ed to intervene . Eventually I the suit Nas consolidated with tNO others which posed some of the questions presented in the mas ter cause . The order �• 2. , of February 28 , 1973 also framed the issues at stake . The consolidated litigation was heard by District Judges Thomsen and Miller, sitting together . Their findings and conclusions are stated in an opinion filed June 22, 1973 and reported as ~lovement Against Destruction v . Volpe, 351 FS 1360 . It comprises a strikingly comprehensive compendium of the multi - factual context of the suit, with lucid resolution of the many legal complications . By a final order dated June 26, 1973 injunctive relief was denied in each of the combined actions. the ~ourt Also, refused a declaratory j udgme nt of violation by the defendants of any of the statutes heretofore listed . The two suits joined with the MAD action were left upon their respective calendars for adjudication a8 to issues not decided in the consolidated cau se. Further, a re - servation appears in the final order as follows: po "The Complaint 1n ~1overnent Against Destruction, et a1 . v . John A. Volpe , Secre tary of Transportation, et al ., Civil No . 72-1 041 -~1, be and the same is hereby dismissed , without prejudice to the right of the Plaintiff. originally named therein, or any of them, to file an Amended Complaint on or before November 1, 1973, with respect to any of the roads or segments in the 3 - A configuration, raising any points which have not been theretof'ore decided. lI On this appeal from the final order we a£firm upon ! �• • 3. the opinion of the District Court. ~Ie decline to award plaintiffs counsel fees and we deny the petiton for an injunction pending appeal which had been deferred for hearing along with the f inal argument of the appeal . In oral argument appellant 1 s counsel note d that since the entry of the final order, officials of the Federal Executive Department have prornu1eated regulations, and the Maryland leg islature has passed l aws , that might affect certain aspects of the proposed means of transportation i n Baltimore . Executive Order No . 11,7~8, See e . g . : December ~, Presidential 1973 , and En- vironmental Protect ion Agency' s revised regulations, 39 Fed . Reg . No . 10, Part 3 , Jan . 15, 1 97 ~; ~1 Code Anno. 15B , as amended November 13, 1973; Maryland Executive Order, Governor of Maryland, effective February 12, 1974. Defe ndants , in this connection, refer to the Emergency Highway Energy Conservation Act , Pub. L. 93p239 , § 3, 87 Stat . 1046 , 42 USLW 21 (1 974), and to Presidential r.Jessages reported as 10 Pres . Docs . 72 , 12'2 , 140, 1 6 1 and 165. The District Court , of course, did not 'consider these matters and we express no opinion upon their rele vancy to the issues presented on thi s appeal. Affirmed . � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Movement Against Destruction Description An account of the resource This exhibit examines community opposition to expressway construction in Baltimore during the 1970s through the organizational records of the Movement Against Destruction (MAD). Founded in 1968 as a coalition of 25 neighborhood and community groups, MAD's leaders included George and Carolyn Tyson, Barbara Mikulski, Walter Orlinsky, Norman Reeves, and Parren Mitchell. The complete MAD collection at the University of Baltimore consists of 9 linear feet of records, which are described in an online collection database. The complete collection has also been digitized at the folder level and is available in this guide. For this exhibit, 32 documents have been selected from the complete collection. Creator An entity primarily responsible for making the resource <a href="http://langsdale.ubalt.edu/special-collections/" target="_blank" rel="noreferrer noopener">Special Collections &amp; Archives, University of Baltimore</a> Source A related resource from which the described resource is derived <a href="https://archivesspace.ubalt.edu/repositories/2/resources/80" target="_blank" rel="noreferrer noopener">Movement Against Destruction Records</a> Publisher An entity responsible for making the resource available <a href="http://langsdale.ubalt.edu/special-collections/" target="_blank" rel="noreferrer noopener">University of Baltimore Special Collections &amp; Archives</a> Date A point or period of time associated with an event in the lifecycle of the resource 1968-1983 Rights Information about rights held in and over the resource Use of these images is governed by U.S. copyright law. The University of Baltimore Special Collections and Archives makes digital surrogates of collections accessible if they are in the public domain, the rights are owned by the University of Baltimore, the Special Collections and Archives has permission to make them accessible, or there are no known restrictions on use. Due to the nature of archival collections, rights information is not always discernible. The Special Collections and Archives is eager to hear from any rights owners wishing to provide accurate information. Upon request, material will be removed from view while a rights issue is addressed. Contact the Special Collections and Archives for more information regarding this image. Format The file format, physical medium, or dimensions of the resource text/pdf Language A language of the resource English Type The nature or genre of the resource Text Identifier An unambiguous reference to the resource within a given context R0062-MAD Date Created Date of creation of the resource. 2019-09 Extent The size or duration of the resource. 32 documents Subject The topic of the resource Express highways Maryland--Baltimore Urban renewal Highway planning Community activists Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Original Format The type of object, such as painting, sculpture, paper, photo, and additional data Paper Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource United States Court of Appeals Decision Description An account of the resource Final decision of the U.S. Court of Appeals for the Forth Circuit Court, which affirms the opinion of the District Court, in case number 73-2136, Movement Against Destruction, et. Al. versus John A. Volpe, et. Al. Date A point or period of time associated with an event in the lifecycle of the resource 1974-03-19 Subject The topic of the resource Court decisions and opinions United States District Court (Maryland) Movement Against Destruction (Organization) Creator An entity primarily responsible for making the resource United States. Court of Appeals (4th Circuit) Publisher An entity responsible for making the resource available University of Baltimore Special Collections & Archives Type The nature or genre of the resource Text Format The file format, physical medium, or dimensions of the resource application/pdf Identifier An unambiguous reference to the resource within a given context mad04.02.08 Source A related resource from which the described resource is derived Movement Against Destruction Records, series 4, box 2, folder 8, Special Collections & Archives, University of Baltimore Rights Information about rights held in and over the resource Use of this digital material is governed by U.S. copyright law. The University of Baltimore Special Collections and Archives makes digital surrogates of collections accessible if they are in the public domain, the rights are owned by the University of Baltimore, the Special Collections and Archives has permission to make them accessible, or there are no known restrictions on use. Due to the nature of archival collections, rights information is not always discernible. The Special Collections and Archives is eager to hear from any rights owners wishing to provide accurate information. Upon request, material will be removed from view while a rights issue is addressed. Contact the Special Collections and Archives for more information regarding this image. Court decisions and opinions Movement Against Destruction (Organization) United States District Court (Maryland)