Cite as: 560 F.Supp. 1019
U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
Charles Frances DAVISON et al., Plaintiffs
DEPARTMENT OF DEFENSE et al., Defendants
May 28, 1982
Frederic R. Kass, James Thompson, Reynoldsburg, Ohio, for plaintiffs.
James E. Rattan, Asst. U.S. Atty., Columbus, Ohio, Byron D. Baur, Secretary of the Air Force, Washington, D.C., Russell E. Leach, Columbus, Ohio, for defendants.
OPINION AND ORDER
DUNCAN, District Judge.
This action is brought under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and regulations promulgated thereunder, to challenge the sufficiency of an environmental impact statement (EIS) assessing the proposed use of Rickenbacker Air National Guard Base (Rickenbacker) near Groveport, Ohio. Plaintiffs oppose the proposed addition of civilian air cargo operations at the base, and they allege that the EIS prepared by the Department of the Air Force does not paint an accurate picture of the noise impact that an air cargo facility would have on the communities surrounding Rickenbacker. By establishing the inadequacy of the EIS, plaintiffs hope to force defendant, the Secretary of the Air Force (the Secretary), to reconsider his approval of the proposed plan. At issue is whether the data presented by the EIS was sufficient to allow the Secretary to make an intelligent choice between the available alternative uses for the base. For the reasons that follow, the Court finds that further study is needed.
Prior to 1979, Rickenbacker was a fully operational Strategic Air Command base which served as headquarters for the 301st Air Refueling Wing. It employed approximately 1800 military personnel and 1200 civilians, and it housed at least 82 military aircraft, many of which were KC-135 refueling tankers. On March 29, 1979, the Secretary announced that Air Force activities at Rickenbacker would be sharply reduced as part of a plan to consolidate and streamline air refueling resources. Beginning in July of that year, SAC activities at the base ceased, manpower was gradually withdrawn, and most of the KC-135 aircraft were relocated. The 301st Air Refueling Wing was inactivated, and the base was turned over to the Ohio National Guard. When the phaseout is complete, the Air Force expects that only 148 military personnel and 768 civilians will remain there.
As a result of this reduction in forces, much of the land and many of the buildings at Rickenbacker are no longer needed by the Air Force. Procedures for disposing of the excess property were commenced, and the City of Columbus and several of its surrounding communities expressed interest in acquiring the facilities for use as an "industrial air park." To this end defendant Rickenbacker Port Authority (RPA) was created to receive the excess lands and to negotiate an agreement with the Air Force for joint use of the property retained by it.
In order to comply with the requirements of NEPA, the Secretary commissioned a private consulting firm to produce an EIS on the proposed use of Rickenbacker as an air cargo facility. A draft was released for review and comment on July 24, 1981, and public hearings were held in Groveport on September 2, 1981. In response to many expressions of concern over the potential noise impact of the proposed air cargo facility, an expanded study of noise effects on sleep and education was undertaken, and its results are included in the final draft of the EIS. [FN 1] In October 1981, the EIS was submitted to the Secretary.
After reviewing these findings, Tidal W. McCoy, an Assistant Secretary of the Air Force, issued a written decision approving the proposed plan. McCoy noted that the joint use proposal was an ideal solution from the Secretary's point of view because it allowed the government to preserve an airfield complex that could be quickly reconverted to a military base if necessary, and it enabled the Air Force to maintain reserve forces at the base at a relatively low cost. With respect to the adverse environmental effects of air cargo operations, McCoy concluded that:
Plaintiffs began this action well before publication of the Secretary's final decision, but it was not until sometime thereafter that the suit began to assume its present form. The case was initially filed in October 1980 by a group of retired Air Force personnel and concerned citizens calling themselves the Military Defense Action Group (MDAG). Several of the retirees used Rickenbacker facilities to obtain needed goods and medical treatment at a substantial discount, and they hoped to preserve this service. In addition, the group objected generally to the reduction of forces at a base which they viewed as vital to the national defense. The original complaint alleged violations of NEPA, but it made no express reference to the noise impact of the proposed air cargo operations; instead it asked for a restraining order on grounds that the Secretary had not adequately considered the economic ramifications of curtailing military operations at Rickenbacker, particularly the effect on retired military personnel who depend on the facilities for medical supplies. The Court held a hearing on plaintiffs' motion for injunctive relief, but it denied the request on October 27, 1980.
Approximately six months later, plaintiffs amended their complaint to include a claim under NEPA contesting the sufficiency of the Secretary's environmental assessment. [FN 2] Shortly after publication of the final EIS, plaintiffs again moved for a TRO enjoining the Air Force and RPA from executing or implementing a joint use agreement. Plaintiffs charged, inter alia, that the final EIS failed to inform the Secretary of a "massive sleep disturbance affecting over 1,000 people." Upon meeting with counsel, the Court denied the motion but set the case down for trial on the merits in early February 1982.
A few days before the trial was to begin, the Secretary and other federal defendants moved for a continuance. They notified the Court that a number of errors had been made in compiling the noise-impact data upon which the EIS was based. The continuance was granted, and the parties entered into a consent order whereby it was agreed that while the data was being re-evaluated, neither the Air Force nor RPA could proceed further with implementation of the joint use plan. A few weeks later, the federal defendants informed the Court that the erroneous data in the EIS had been "reaccomplished." A rather detailed document which purported to correct the final EIS was submitted, and defendants moved for a new trial date.
Beginning on April 14, 1982, the Court heard four days of testimony regarding the sufficiency of the final EIS. Plaintiffs produced several exhibits plus the testimony of a number of noise experts and citizens who allegedly will be affected by the proposed air industrial park. Defendants relied primarily on the EIS itself, as well as the testimony of several experts who, directly or indirectly, played a role in its preparation. The parties were then given an opportunity to submit post-trial memoranda, and final arguments were heard on April 30. Pending a decision on the merits, the Court entered an order barring defendants from commencing air cargo operations or transferring title to the excessed lands.
Plaintiffs' complaint states essentially that the October 1980 EIS does not comply with the requirements of NEPA in that it fails to measure and identify properly the nature and degree of noise impact on the human environment. The complaint also charges that the excessed lands cannot legally be transferred to RPA without consideration, and that the proposed air industrial park would compete with Port Columbus International, a nearby civil airport, and thus violate 49 U.S.C. 1507 and 1508. No evidence or argument was presented by plaintiffs on any of these latter theories, so the Court must find in favor of defendants on them. The only issue properly before the Court is whether the final EIS is adequate as a matter of law with respect to its evaluation of the noise which could result from the proposed air cargo operation.
It should be emphasized from the outset that the final decision on how best to use the facilities at Rickenbacker rests exclusively with the Secretary of the Air Force, not this Court. Although NEPA establishes "significant substantive goals for the Nation," Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), it does not wrest from administrative agencies their traditional decisionmaking power. The statute requires only that:
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement of the responsible official on--
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
These requirements are largely procedural, and once the agency in question has complied with them, the role of the courts is limited to determining whether or not the responsible administrators have taken a "hard look" at the environmental consequences of the proposed action. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 quoting Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972); Evans v. Train, 460 F.Supp. 237, 241 (S.D.Ohio 1978); Ohio, ex rel. Brown v. U.S.E.P.A., 460 F.Supp. 248, 250 (S.D.Ohio 1978). As the Supreme Court has observed:
With respect to environmental impact statements, the scope of review is correspondingly narrow. The "detailed statement" requirement of NEPA was designed not to give federal judges a means by which to second guess agency decisionmakers, but rather to allow the courts to assure that the agency in question has made a good faith effort to explore the concerns voiced within the statute. Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1299 (8th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). In assessing the sufficiency of an EIS, a reviewing court's inquiry is thus limited to determining: (1) whether the EIS discusses all five of the factors listed in 42 U.S.C. 4332(C) and otherwise meets the procedural requirements set forth therein; (2) whether the EIS as a whole evidences a good faith effort on the part of the preparer to comply with the demands of NEPA; and (3) whether the EIS contains sufficient information to enable the agency to make a reasonable and independent choice among the available alternatives. Id., 541 F.2d at 1298-1301; Save Our Invaluable Land (Soil), Inc. v. Needham, 542 F.2d 539, 542-543 (10th Cir.1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1580, 51 L.Ed.2d 792 (1972); Sierra Club v. Morton, 510 F.2d 813, 819-820 (5th Cir.1975); National Helium Corp. v. Morton, 486 F.2d 995, 1001-1003 (10th Cir.1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974); and Evans v. Train, supra, 460 F.Supp. at 241-242.
The touchstone of this test is reasonableness. Minnesota Public Interest Research Group v. Butz, 541 F.2d at 1300. NEPA does not require perfection, and an EIS will not be rejected simply because it fails to address all possible contingencies or omits the views of a particular expert. Id.; see also Environmental Defense Fund v. Tennessee Valley Auth., 492 F.2d 466, 468, n. 1 (6th Cir.1974) (per curiam); and Kentucky, ex rel. Beshear v. Alexander, 655 F.2d 714, 718 (6th Cir.1981). Against NEPA's command that potential environmental problems be considered "to the fullest extent possible," the Court must balance notions of feasibility and practicality. Id. Consequently the Court will not reject an EIS in part or in whole unless it is convinced that the alleged defect has fundamentally impaired the decisionmaker's ability to take a "hard look" at the relevant environmental issues.
Here it is undisputed that the final EIS on Rickenbacker deals with each of the five topics enumerated in § 4332(C), and plaintiffs have not pointed to any failure by the Secretary to comply with other procedural prerequisites of the statute. Likewise, no evidence has been produced that would in any way indicate a lack of good faith on the part of the Secretary or the preparers of the EIS. A great deal of evidence challenging specific data within the EIS was adduced at trial, however, and the Court must review it in some detail to determine whether or not the Secretary was able to give a "hard look" to potential noise problems created by proposed air cargo operations.
The final EIS is divided into two volumes, each of which contains over 150 pages. The first volume reviews the proposed plan, the viable alternatives to it, and the data compiled on potential environmental effects of an air cargo operation. This is the "meat" of the EIS, and a significant portion of it is devoted to noise and its potential impact on the communities near the base. The second volume catalogs the public comments received on the proposed use. It includes letters from members of the public to officials connected with the project, including President Reagan, and it also contains a transcript of the public hearings held in September 1981. The bulk of these comments are from citizens residing in and around the Rickenbacker area, and most express some degree of concern over the increased noise that may result if Rickenbacker is ultimately used as an air industrial park.
The EIS deals with the noise problem from several different angles. Among other things, it presents a graphic comparison of noise levels at Rickenbacker before and after the proposed operations have begun. On several maps of the surrounding area, "noise contours" are plotted both for existing military operations and proposed civilian operations. These contours were "reaccomplished" prior to trial, and they were the basis for many of plaintiffs' objections to the EIS. The report also includes a noise analysis of feasible steps that could be taken by private air carriers to mitigate the noise created by the new facility. In addition the EIS contains somewhat detailed estimates of potential classroom disruption and sleep disturbance which might be caused by private air cargo flights of the type proposed. On its face the report appears to discuss rather thoroughly both the magnitude of the noise increase resulting from the proposed facility and the harms that can reasonably be expected to flow from it. Plaintiffs, however, have raised many specific and rather technical objections to the document.
A. Average Noise Levels
Plaintiffs take issue first with the noise level data in general. This data purports, by way of noise contour maps, inter alia, to show which additional areas in the Rickenbacker vicinity will be exposed to a significantly higher Day-Night Average Sound Level (DNL) [FN 3] as a result of planned air cargo operations. Using a DNL of 65 decibels (dB) as the threshold figure for significant noise exposure, [FN 4] the EIS Executive Summary concludes that 67% of Groveport dwellings (or about 2100 Groveport residents) will fall into contours greater than 65 dB under the proposed plan, as opposed to 22% under current operations. Plaintiffs claim that these figures are misleading because they tend to overestimate the noise levels produced by current operations and underestimate the noise which would be generated by air cargo flights. Defendants recognize that some flaws do exist in the reported data, but on the basis of newly-computed figures they claim that, if anything, the EIS noise contours actually overstate the probable noise increase.
[FN 4] In choosing a threshold DNL figure, the preparers of the EIS relied upon a HUD publication entitled "Guidelines for Considering Noise in Land Use Planning and Control," reprinted at Appendix B of the EIS. According to Table B-1 contained therein, HUD, DOT, and EPA recognize a DNL of 55 dB as a goal for acceptable outdoor noise exposure. DNL above 65 dB is deemed to be significant and "normally unacceptable." Plaintiffs charge that this 65 dB threshold is itself too high because significant adverse health effects allegedly begin at a DNL of 55 dB or below. See text at 1031-1032.
[FN 7] EIS, Fig. IV-3; see also Reacc. Data, Atch. 8.
[FN 8] The 9- and 15-hour Leq contours included in the reaccomplished data are a bit more helpful, since the time periods measured therein more closely approximate those of the greatest concern here. They are still potentially misleading, however, because the contours shown for existing nighttime operations are probably produced by flights on either end of the 9-hour continuum (between 10:00 p.m. and 11:00 p.m. or 6:00 a.m. and 7:00 a.m.), whereas the contours shown under the proposed plan would be generated by flights in the middle of the 9-hour period (i.e., between 12:00 midnight and 6:00 a.m.). At any rate, the reaccomplished figures were never formally submitted to the Secretary, and they played no part in his decision.
[FN 10] Among these alternate methodologies is a means by which the decisionmaker can determine the peak noise level of particular overflights. See note 12, infra.
The preparers of noise contour data in the EIS apparently assumed that all current operations now occur, and will continue to occur, on Runway 05R- 23L. This is the "outside" runway, which has traditionally been used in the vast majority of military operations at Rickenbacker. Parallel to this, however, is Runway 05L-23R, the "inside runway"; its flight line takes aircraft approximately 1000 feet closer to Groveport than does the outside strip. Plaintiffs maintain that failure to consider operations which may occur on the inside runway impermissibly skews the noise contour data, at least with respect to Groveport. The Court, though, has serious doubts as to whether the effect of this 1000 foot shift in contour lines would be statistically significant. [FN 11] Even if it is, the testimony of several defense witnesses, including the executive director of RPA, established that the inside runway is not now suitable for sustained air cargo use, and that no plans are in the offing to make it so. The inside runway is temporarily being used while the outside strip is being renovated, and some reference to both runways has been made in presentations to prospective civilian tenants at the base, but it appears that long-term use of the inner runway would be impossible without major rebuilding efforts, none of which are contemplated in the reasonably foreseeable future. The Court therefore finds that the failure to calculate noise contours from the flightline of the inside runway was not a material omission.
In addition to the abovegoing assaults on the noise estimates of future operations, plaintiffs also challenge the accuracy of the data used to estimate the noise impact of current operations at the base. The complaint charges that the Air Force utilized flight operation figures for current annual operations which are approximately three times greater than the actual amount. This, of course, would have the effect of minimizing the overall change in noise levels accruing from the proposed use. In support plaintiffs offered some evidence to show that Rickenbacker "Air Traffic Control Logs," which presumably were used in preparation of the EIS, showed higher flight totals than the corresponding "Daily Traffic Counts" kept by air traffic controllers at the base. An air traffic controller from the base admitted, though, that the discrepancy might be attributable in part to the fact that the latter records often do not include "touch-and-go" takeoffs and landings commonly used in training. Even if this is not the case, plaintiffs failed to make clear whether the Logs did in fact provide the data upon which the EIS is based, or whether the discrepancy in flight totals between the two sets of records is statistically significant in relation to average noise levels. Consequently the Court has no choice but to find in favor of defendants on this claim as well.
The Court does not mean to imply that the noise level estimates used in the EIS are in any sense unflawed. They are estimates at best, and, with more time and money, many additional steps could have been taken to increase their accuracy, both in terms of the raw data base and the methodology used to present such data. Viewed in their totality, though, the noise contour maps and other noise level indicators appear adequately to apprise the decisionmaker of the significant impact of air cargo operations on average noise levels in the Rickenbacker area. As suggested above, the usefulness of average noise level contours is quite limited where the major change wrought by the proposed use will be a shift in peak flight times, but this limitation should be evident to the average reader upon reviewing the whole EIS. Hence the Court declines to find that use of this data in the EIS left the decisionmaker without adequate information upon which to make a reasoned choice between alternative uses.