lawsuit filed against davis-monthan by tucson residents
DESCRIPTION
Three residents who live in midtown Tucson in the Davis-Monthan Air Force Base flight path have filed a suit against the U.S. Air Force.TRANSCRIPT
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ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST P.O. Box 41835
Tucson, Arizona 85719
(520)529-1798
Attorneys for Plaintiffs
Joy E. Herr-Cardillo (009718)
Timothy M. Hogan (004567)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
RITA B. ORNELAS, GARY HUNTER, and ANITA SCALES, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, ROY ALAN C. AGUSTIN, in his official capacity as Brigadier General, USAF, and Director of Installations & Mission Support Defendants.
No. COMPLAINT (DECLARATORY AND INJUNCTIVE RELIEF)
Plaintiffs, by and through their attorneys, the Arizona Center for Law in the Public
Interest, for their Complaint against defendants allege as follows:
NATURE OF THE ACTION
1. Plaintiffs are seeking declaratory and injunctive relief for violations of the
National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA).
2. On May 14, 2015, the United States Department of the Air Force (USAF)
approved an update and implementation of the Total Force Training Mission for Visiting
Units (Operation Snowbird Multi-Service, Foreign Military Sales)(TFT) at Davis-Monthan
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Air Force Base (DMAFB) located in Tucson, Arizona. The approved action will increase
the annual number of sorties1 flown by visiting units at DMAFB to 2,326.
3. In evaluating the TFT, the USAF failed to comply with numerous requirements
of the NEPA and failed to adequately evaluate the environmental impact of the approved
action. As set forth below, USAF action in this case was arbitrary, capricious, and not in
accordance with applicable law.
4. Plaintiffs seek declaratory and injunctive relief that recognizes that the
environmental assessment prepared by the USAF is inadequate and requires the USAF to
conduct a legally-compliant NEPA analysis including an Environmental Impact Statement as
required by law.
5. Should Plaintiffs prevail, they will seek an award of costs and attorneys fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412.
JURISDICTION AND VENUE
6. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331
(Federal Question), 1346 (United States as defendant), and 5 U.S.C. 701-706 (judicial
review provisions of the APA), and is authorized to provide the relief sought under 28
U.S.C. 2201 and 2202.
7. Venue in this Court is proper under 28 U.S.C. 1391(e) because this is a civil
action in which officers or employees of the United States or any agency thereof are acting in
their official capacity, a substantial part of the events or omissions giving rise to the claims
occurred in this judicial district, and the Plaintiffs all reside in this district.
8. An actual, justiciable controversy exists now between the parties within the
meaning of 28 U.S.C. 2201 and Plaintiffs are entitled to relief sought herein to redress the
harm Plaintiffs would otherwise suffer.
1 A sortie consists of a single aircraft conducting flight operations from initial takeoff to final landing, which
represents two airfield operations (one takeoff and one landing).
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9. Plaintiffs have exhausted their administrative remedies. The USAF does not
provide an administrative appeal process for decisions documented in a Finding of No
Significant Impact (FONSI).
10. Plaintiffs have no adequate remedy at law.
11. The federal government has waived sovereign immunity in this action pursuant
to 5 U.S.C. 702.
PARTIES
12. Plaintiff Rita B. Ornelas is a resident of Tucson, Arizona. Ms. Ornelas lives in
close proximity to the DMAFB in the Julia Keen neighborhood. Ms. Ornelass home, which
she purchased in 1987, is in the flight pattern of the TFT operations (within the 70-74 dB
zone) and aircraft taking off and landing at the DMAFB fly directly over her house. As a
result, she is directly and negatively impacted by the approved action to increase the number
of sorties flown by visiting units. The injuries suffered by Ms. Ornelas include economic
injuries due to the negative impact that the increased flight traffic has on the value of her
home, as well as physical and emotional injuries that she has suffered and will continue to
suffer as a result of being subjected to an increased number of sorties by aircraft that are also
increasingly loud.
13. Ms. Ornelas is a former member of Tucson Forward and current member of
Americans for Livable Communities and helped draft the written comments submitted by
those organizations during the public comment periods for the Draft Environmental
Assessment for the Proposed Update and Implementation of the National Guard Bureau
Training Plan 60-1 in Support of Operation Snowbird Davis-Monthan Air Force Base,
Arizona (Draft EA) and Draft Environmental Assessment for the Update and
Implementation of the Total Force Training Mission for Visiting Units (Operation Snowbird,
Multi-Service, and Foreign Military Sales) Davis-Monthan Air Force Base, Arizona,
(Revised Draft EA). Ms. Ornelas also submitted individual written comments under her
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own name during the public comment period for the Draft EA. Ms. Ornelas was the
Representative of the Julia Keen Neighborhood Association on the Military Community
Relations Committee (MCRC) from 2009 to January 2016.
14. Plaintiff Gary Hunter is a resident of Tucson, Arizona and lives in the
Blenman-Elm neighborhood. His home, which he and his wife purchased in 1997, is in the
flight pattern of TFT operations and aircraft taking off and landing at the DMAFB fly
directly over his house. As a result, he is directly and negatively impacted by the approved
action to increase the number of sorties flown by visiting units. The injuries suffered by Mr.
Hunter include economic injuries due to the negative impact that the increased flight traffic
with its resulting noise and safety concerns has on the value of his home, and emotional and
physical injuries that the increasing noise has on his quality of life.
15. Mr. Hunter participated in the Military Community Compatibility Committee
in 2005 2006. From the inception of the MCRC in 2006 until 2015, Mr. Hunter
participated as representative of the Blenman-Elm Neighborhood Association. He
participated in organizing Tucson Forward, and is a current member of Americans for
Livable Communities. He drafted the written comments submitted by the Blenman-Elm
Neighborhood Association and helped draft the written comments submitted by Tucson
Forward and by Americans for Livable Communities during the comment periods for the
Draft EA and Revised Draft EA. He also submitted individual written comments under his
own name during the comment periods for the Draft EA and Revised Draft EA.
16. Plaintiff Anita Scales is a resident of Tucson, Arizona and lives in the
Broadmoor neighborhood. Ms. Scales home, which she purchased in 2000, is in the flight
pattern of the TFT operations and aircraft taking off and landing at the DMAFB fly directly
over her house. As a result, she is directly and negatively impacted by the approved action
to increase the number of sorties flown by visiting units. The injuries suffered by Ms. Scales
include economic injuries due to the negative impact that the increased flight traffic with its
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resulting noise and safety concerns has on the value of her home, and emotional and physical
injuries that the increasing noise has on her quality of life.
17. Ms. Scales is a member of both Tucson Forward and Americans for Livable
Communities and helped draft the written comments submitted by those organizations during
the public comment periods for the original Draft EA and the Revised Draft EA. Ms. Scales
is also an alternate member of the MCRC, representing Tucson Forward on that Committee.
18. Defendant USAF is the federal agency that, through Air Combat Command
(ACC) manages DMAFB. It oversees and authorizes training by visiting units at the base.
19. Defendant Roy Alan C. Agustin is named in his official capacity as Brigadier
General and the Director of Installations and Mission Support, Headquarters ACC, Joint
Base Langley-Eustis, Virginia. He is responsible for ensuring that DMAFB supports
operational and training needs. General Agustin is responsible for the FONSI and approval
of the proposed action at issue in this case.
STATUTORY FRAMEWORK
THE NATIONAL ENVIRONMENTAL POLICY ACT
20. Plaintiffs incorporate by reference paragraphs 1 19 as if fully set forth herein.
21. Congress enacted NEPA in 1969, directing all federal agencies to assess the
environmental impacts of proposed actions that significantly affect the quality of the
environment. 42 U.S.C. 4332(2)(C). NEPAs disclosure goals are two-fold: (1) to insure
that the agency has carefully and fully contemplated the environmental effects of its action,
and (2) to insure that the public has sufficient information to challenge the agencys action.
22. The Council on Environmental Quality (CEQ) promulgated uniform
regulations to implement NEPA that are binding on all federal agencies. 42 U.S.C. 4342;
40 C.F.R. 1500 et seq.
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23. NEPA requires federal agencies to prepare a detailed environmental statement
before undertaking any major federal action significantly affecting the quality of the human
environment. 42 U.S.C. 4332(2)(C).
24. Major federal actions subject to NEPA include new and continuing
activities with effects that may be major and which are potentially subject to Federal
control and responsibility. 40 C.F.R. 1508.18.
25. The human environment includes the natural and physical environment and
the relationship of people with that environment. Id. at 1508.14.
26. Effects that must be considered include ecological, aesthetic, historic, cultural,
economic, social, and health effects, whether direct, indirect, or cumulative. Id. at 1508.8,
1508.25. An agency must evaluate potential adverse economic effects that are interrelated
with natural or physical environmental effects. Id. at 1508.14.
27. Direct effects are effects which are caused by the action and occur at the same
time and place. Id. at 1508.8(a).
28. Indirect effects are caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable. Indirect effects may include
growth-inducing effects and other effects related to induced change in the pattern of land
use, population density or growth rate, and related effects on air and water and other natural
systems, including ecosystems. Id. at 1508.8(b).
29. Cumulative impacts are impacts on the environment that result from the
incremental impact of the action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency (Federal or non-Federal) or person
undertakes such other actions. Cumulative impacts can result from individually minor but
collectively significant actions taking place over a period of time. Id. at 1508.7.
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30. An agency may prepare an environmental assessment (EA) to determine
whether a proposed action will significantly affect the environment, thereby requiring the
preparation of an environmental impact statement (EIS). 40 C.F.R. 1501.4(a), 1508.9(a).
31. If, pursuant to the EA, an agency determines that an EIS is not required under
applicable CEQ regulations, it must issue a finding of no significant impact (FONSI),
which briefly presents the reasons why the proposed agency action will not have a significant
impact on the human environment. See 1501.4(e),1508.13.
ADMINISTRATIVE PROCEDURE ACT
32. Judicial review of federal agency action is governed by the Administrative
Procedure Act (APA), 5 U.S.C. 551 et seq. Under the APA, courts shall hold unlawful
and set aside agency action, findings, or conclusions found to be "arbitrary, capricious, and
abuse of discretion, or otherwise not in accordance with the law" or without observance of
procedure required by law. 5 U.S.C. 706(2)(A), (D).
ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
33. DMAFB is located in Tucson, Arizona approximately five miles south-
southeast of Tucsons downtown. DMAFB occupies 10,633 acres, or about sixteen and a
half square miles of land. DMAFB is bounded by residential areas to its north, west, and
east.
34. The host unit headquartered at DMAFB is the 355th Fighter Wing (355 FW)
assigned to Twelfth Air Force, part of ACC. The 355 FWs combat mission is providing A-
10 Thunderbolt II close air support and OA-10 forward air controllers to ground forces
worldwide. The 355 FW provides initial and recurrent training to all U.S. Air Force A-10,
OA-10 and EC-130 pilots and crews.
35. There are daily flight operations by aircraft units based at DMAFB, which
includes the 355th FW, the 563rd Rescue Group, the 943rd Rescue Group, the 55th Electronic
Combat Group, U.S. Customs and Border Protection and the Aerospace and Maintenance
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and Regeneration Group. These units plan for up to 75,000 to 80,000 flight operations per
year.
36. A-10 pilots are trained in providing close air support, forward air control, and
combat search and rescue. Some of these activities require pilots to perform touch and
gos and other pattern flying operations (including a racetrack pattern) at and within the
airspace surrounding DMAFB.
37. The runway at DMAFB is 13, 645 feet long, 200 feet wide, with 1,000 foot
overruns at each end. Depending on the direction of departing and arriving air traffic, it is
referred to as either Runway 12 or Runway 30.
38. Flights departing on Runway 30 or landing on Runway 12 fly over the
residential neighborhoods to the northwest of DMAFB.
39. The 162nd Fighter Wing (162nd FW) is a unit of the Arizona Air National
Guard (ANG), stationed at Tucson Air National Guard Base, located next to the Tucson
International Airport (TIA). Routine ANG activities are conducted by the 162nd FW out of
the TIA, which is located approximately 3.75 miles southwest of DMAFB. At times, ANG
F-16s also fly in and out of DMAFB.
40. Operation Snowbird (OSB) was started in 1972 and was initially designed
and implemented to allow ANG units from bases located in northern states to train in optimal
weather conditions during the winter months.
41. In 1978, the USAF and ANG completed an EA and a FONSI was issued to
address the activities occurring under OSB at DMAFB.
42. A fatal crash of an A-7 near the University of Arizona campus in 1978
prompted the USAF and ANG to reevaluate the OSB program. A portion of the OSB was
relocated to other bases, which reduced the number of OSB aircraft at DMAFB by 30
percent. In addition, by substituting two A-10 units for A-7 units, it reduced the number of
participating A-7 units from five to three.
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43. Between 1988 and 1992, the type of aircraft flying in OSB converted from F-
100 and A-7 to F-16; however, no NEPA analysis was prepared to evaluate these changes.
44. By 1995, OSB had transitioned to a year round training program, but again, no
NEPA analysis was prepared to evaluate these changes in the program.
45. In 2001, the Arizona Legislature passed legislation that appropriated funds to
develop comprehensive land use plans in the noise and accident potential zones surrounding
active military airports. As a result of this legislation, the Arizona Military Regional
Compatibility Project was created to encourage stakeholders and jurisdictions around each
Arizona military base to address land use compatibility issues.
46. In February 2004, as part of the Arizona Military Regional Compatibility
Project, the Arizona Department of Commerce published a Davis-Monthan Air Force Base
Joint Land Use Study (JLUS). The JLUS was prepared under contract with the Arizona
Department of Commerce with financial support from the Office of Economic Adjustment,
Department of Defense, and was intended to address land use compatibility issues. Although
the study purported to seek input from property owners near DMAFB, the only
neighborhood represented on the Policy Advisory Committee was the Rita Ranch
neighborhood which is to the southeast of the base. There was no formal representation from
Tucsons midtown neighborhoods, which are located north of the base, in the JLUS process.
47. On October 25, 2004 the City of Tucsons Mayor and Council voted to amend
the current Airport Environs Zone (AEZ) by incorporating the recommendations of the
JLUS into the appropriate sections of the Citys Land Use Code. As a result, zoning overlays
were enacted to restrict land uses on properties that were located within the DMAFB flight
pattern. The expanded noise contours that formed the basis for the zoning overlays signaled
the potential for increased noise over long-established Midtown and University of Arizona
area neighborhoods and throughout the DMAFB environs.
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48. The JLUS and the resulting zoning overlays were very controversial with
property owners affected by them. Midtown residents were concerned about the potential
loss of residential property value due to new residential uses being restricted in the AEZ (the
stigma of incompatible residential land use) and to quality of life impacts due to the
expansion of the high noise contours. Concerned stakeholders, especially those to the
northwest of the runway, also perceived that noise and safety issues related to DMAFB
operations were not adequately addressed by the JLUS.
49. Shortly after the Mayor and Councils October 2004 decision, the U.S. Institute
for Environmental Conflict Resolution of the Morris K. Udall and Stewart L. Udall
Foundation was enlisted by affected community members to assess the potential for a
community dialogue on these concerns.
50. The Military Community Compatibility Committee (MC3) that resulted
brought together representatives from diverse interests to discuss issues, gather information
and generate consensus recommendations. The MC3 was an advisory committee only and
had no power to adopt or implement any of its recommendations.
51. The 28-member MC3 met monthly between September 2005 and August 2006.
The process began with education and information-sharing among members, through a series
of presentations highlighting the perspectives of: DMAFB, Midtown neighbors, the
University of Arizona Science and Tech Park, outdoor-based businesses, and non-residential
landowners.
52. In August 2006 the MC3 issued its Final Report: Consensus
Recommendations.
53. One of the recommendations from the MC3 was to create an ongoing Military
Community Relations Committee (MCRC).
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54. The failure of OSB to comply with NEPA came to the publics attentionand
the attention of the USAFwith the circulation of a letter addressed to Defense Secretary
Robert Gates in November of 2008. More than 800 Tucsonans signed the letter.
55. In August 2009, the USAF hired Wyle Laboratories to conduct a study of the
OSB program. The purpose of the study was to mitigate on-going public concern over OSB
operations.
56. On April 15, 2010, Wyle Laboratories released its Draft Preliminary Study
Report, Operation Snowbird Safety Procedures and Operational Study Services (Wyle
Draft Report). The Wyle Draft Report concluded with two recommendations:
1. Air Force prepare a written environmental assessment (EA) to determine
whether or not Operation Snowbird significantly impacts the Tucson
environment. The prevailing EA, dated 1978, does not reflect the current level
of operations nor type of aircraft flown in Operation Snowbird. . . . A new EA
would re-establish the baseline of activities and provide a more realistic view
of impacts associated with Operation Snowbird operations.
2. Air Force contract for a new [Air Installation Compatible Use Zone
(AICUZ)]. The prevailing AICUZ, dated 1992, does not reflect the current level of operations. A new AICUZ would re-evaluate aircraft noise and
accident potential related to U.S. Air Force flying operations at Davis Monthan
AFB.
Wyle Draft Report at p. 55.
57. While the Wyle Draft Report was undergoing review, the contract for the study
was terminated and a decision was made to prepare an EA.
58. In July 2012, the USAF released a Draft EA and FONSI for OSB.
59. Plaintiffs submitted written comments regarding the Draft EA both
individually and through the organization Tucson Forward.
60. Those written comments identified numerous inadequacies in the Draft EA,
including, but not limited to, its failure to include an impact analysis on children, its failure
to include an analysis of health impacts generally, its flawed noise analysis, its inadequate
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safety analysis, its inadequate analysis of cumulative impacts, its failure to consider a
reasonable range of alternatives, its failure to use 1978 as its no action alternative and its
inadequate environmental justice analysis. The comment letter also urged the USAF to
prepare an EIS.
61. The public comment period for the Draft EA closed in October 2012.
62. After the close of the comment period, the USAF announced that it was
revising the Draft EA, purportedly to respond to the concerns expressed during the public
comment period.
63. On September 22, 2014, the USAF released for public comment the Revised
Draft EA.
64. The Revised Draft EA expanded the focus of the EA from just the OSB
program, and to include all training missions by visiting units at DMAFB. To reflect that
change, the name of the document changed to refer to Total Force Training. As the
Revised Draft EA explained, NGB/ANG is responsible only for those units/aircraft that are
planned specifically for OSB/Det. continued training missions. Other DoD and FMS units
that train at DMAFB do so under the authority/approval of 355 FW/CC or ACC
Headquarters. Thus, ACC has decided to revise the 2012 Draft EA to more accurately
describe the visiting unit (i.e., units other than those based at DMAFB) flight operations that
occur at DMAFB and assess their potential impacts. Revised Draft EA at ES-1 through 2.
65. The Plaintiffs individually and through Americans for Livable Communities
(ALC), submitted written comments on the Revised Draft EA.
66. ALC is an alliance of concerned citizens whose mission is to protect and
enhance the livability, safety, property values, and economic viability of their communities.
The communities represented include homeowners who live and work in the flight pattern
from DMAFB and will be affected in a number of ways if the TFT program is expanded.
Several of the current members of ALC were also active in Tucson Forward, an Arizona
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non-profit that was formed several years ago to protect Tucson and its neighborhoods from
health damaging noise and safety concerns related to overflights from Davis-Monthan.
67. In their comment letter, Plaintiffs and ALC once again identified numerous
inadequacies in the Revised Draft EA, including, but not limited to, its flawed and
incomplete noise analysis, its inadequate/missing analysis of cumulative impacts, its failure
to include an analysis of health impacts generally, its inadequate analysis of the impact on
children, its inadequate safety analysis, its inappropriate reliance upon 2009 as the no
action alternative and its inadequate environmental justice analysis. The comment letter
also objected to the inadequate process for public involvement in the Revised Draft EA and
urged the USAF to prepare an EIS.
68. The Final Environmental Assessment for the Update and Implementation of
the Total Force Training Mission for Visiting Units (Operation Snowbird, Multi-Service,
And Foreign Military Sales) Davis-Monthan Air Force Base, Arizona, (Final EA) and
FONSI were released by ACC on May 15, 2015.
FIRST CLAIM FOR RELIEF
FAILURE TO EVALUATE CUMULATIVE IMPACTS
69. Plaintiffs reallege and incorporate by this reference the allegations contained
above as though fully set forth herein.
70. CEQ regulations require the USAF to conduct an analysis of the incremental
impact of the proposed action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency or person undertakes such other actions.
Cumulative impacts can result from individually minor but collectively significant actions
taking place over a period of time. 40 C.F.R. 1508.7.
71. Although the Final EA contains a chapter entitled Cumulative Impacts and
Other Environmental Considerations, the USAF failed to actually analyze cumulative
effects, especially related to noise.
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72. The Final EA states [i]t should also be noted that other routine ANG activities
conducted by the 162 WG out of Tucson International Airport (TIA), which is located
approximately 4.7 miles southwest of DMAFB (Figure 1-2) are completely separate from
the actions described herein and, thus, are not discussed in this EA. Final EA, p. 1-3
(emphasis added).
73. The analysis of cumulative impacts of TFTs flights over Tucsons residential
neighborhoods also fails to take into account commercial and general aviation aircraft, which
fly in and out of TIA and pass over midtown. Further, the analysis of cumulative impacts
fails to consider the many medical, police, and other civilian helicopters that fly over
midtown neighborhoods. DMAFB and TFT helicopters also fly over midtown, sometimes at
very low elevation, especially when practicing landings at Banner UMC and TMC.
74. The Final EA identifies numerous actions that take place on or in association
with DMAFB, including operations/flights of the 563rd Rescue Group, training by the Royal
Netherlands Air Force in F-16s, Angel Thunder, a joint services exercise that occurs every
18 months and focuses on rescue missions, occasional overflights from other planes, both
military and civilian (which includes F 35s from Luke Air Force Base), and daily flight
operations by the various groups stationed at DM all year around which undertake 75,000 to
80,000 flight operations per year. However, the Final EA fails to actually analyze the
cumulative impacts of these activities on the human environment. Instead, it simply
concludes, without any supporting analysis or explanation, [m]ost other actions at or
surrounding DMAFB may produce localized noise increases, primarily from ground
activities (such as weapons firing ranges, field training exercises, or MILCON projects), so
cumulative noise impacts would be localized and primarily on Federally owned land. The
cumulative impacts identified for airspace, ranges, noise, or safety would not be significant,
but will likely require more coordination between Albuquerque Air Route Traffic Control
Center, the FAA Central Service Region, and military airspace managers. Final EA at 5-5.
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75. Finally, the Final EA fails to analyze the cumulative effects of the no-action
alternative, which the USAF has erroneously identified as TFT operations for the year 2009,
rather than the program as it existed in 1978 (its last NEPA-compliant state) or alternatively,
as it exists today. Because a cumulative impacts analysis must consider the impacts of past
actions, as well as present and reasonably foreseeable future actions, regardless of what time
frame is used for the no-action alternative, the USAF is obligated to fully evaluate the full range
of environmental impacts that have been foisted upon the affected community without any NEPA
analysis since 1978. By failing to do so, the Final EA dramatically understates the true impact
that the TFT activities have had and continue to have on the Tucson population living and
working in the DMAFB flight pattern.
76. In a response to a comment regarding the inadequate cumulative impacts
analysis set forth in the Revised Draft EA, the Final EA appears to acknowledge that its
analysis does not comply with the NEPA requirement but states that [t]he Air Force
believes the cumulative impact analysis is sufficient to comply with the spirit and intent of
CEQ regulations. Final EA p. 1-17 (emphasis added). That is not what the law requires.
77. Because the USAF failed to fully evaluate the cumulative impacts of the
proposed action on the human environment, the Final EA and FONSI are arbitrary and
capricious, an abuse of discretion and contrary to law.
SECOND CLAIM FOR RELIEF
FAILURE TO ADEQUATELY EVALUATE NOISE IMPACTS
78. Plaintiffs reallege and incorporate by this reference the allegations contained
above as though fully set forth herein.
79. Agencies are obligated under NEPA to insure the professional integrity, including
scientific integrity, of the discussions and analyses in their documentation. 40 C.F.R. 1502.24.
80. In evaluating noise impacts on the community in the Final EA, the USAF has
fallen short of this requirement in several respects.
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81. First, the Final EA relies upon assumptions underlying the day-night average
sound level (DNL) which have a very high likelihood of changing, thus significantly
affecting the DNL projections and potentially changing the analysis which forms the basis of
the conclusions of the FONSI.
82. A major assumption was based upon a 2007 draft update (adjusted to 2009
levels) of the AICUZ Study for DMAFB that was last completed in 1992. This highly
technical 2007 Noise Study (adjusted) was difficult for the untrained public to understand.
Further, an official update of the 1992 AICUZ Study is years overdue yet was still in draft
form when the Final EA was released.
83. Second, the Final EA relies only on DNL projections to evaluate noise impacts.
For environments affected by short-duration, high sound exposure level events such as aircraft
noise, DNL analysis fails to describe the most serious impacts. Yet, the Final EA refused to
consider supplemental metrics, despite recent guidance from the DOD recognizing the
limitations of DNL, and urging Military Services to supplement DNL with other
methodological approaches in evaluating noise impacts. As the DOD advises in its 2009
guidance:
While the Federal agencies have accepted DNL as the best metric
for land use compatibility guidelines, reducing the description of
noise exposure to a single value of DNL may not help the public
understand noise exposure. Simply looking at the location of
their home on a DNL contour map does not answer the important
questions: how many times airplanes fly over, what time of day,
what type of airplanes, or how these flights may interfere with
activities, such as sleep and watching television. The number
and intensity of the individual noise events that make up DNL
are critically important to public understanding of the effects of
noise around airports. What is needed is a better way to
communicate noise exposure in terms that are more easily
understood. Supplementing DNL with additional metrics will
help the public better understand noise exposure.
Department of Defense Noise Working Group, Improving Aviation Noise Planning,
Analysis and Public Communication with Supplemental Metrics (December, 2009) at 2-1.
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84. In refusing to consider supplemental metrics in its noise impacts analysis, the
Final EA states only that additional metrics are recommended but not required by the DOD,
and offers no explanation as to why the USAF chose to ignore the DOD recommendation.
85. Third, the Aircraft Noise Analysis offered to support the Final EA uses two of
the three models from the NOISEMAP suite of noise models. The Final EA claims that
models are routinely verified by the Air Force (Final EA at 4-1). However, this statement
is at odds with information received by plaintiff Gary Hunter from DMAFBs Captain
Osborne and Civil Engineer Joe Doyle on the day of the deadline for submitting comments.
There is no evidence that NOISEMAP used in the Final EA has been verified.
86. Finally, the Final EA also fails to identify appropriate mitigation. The 70-74
dB zone is an area which particularly commands attention in terms of mitigation. While
adoption of mitigation measures is not a requirement of the law, identification and analysis
of such measures is part of the required analysis.
87. Because the USAF failed to fully evaluate the noise impact of the proposed
action on the human environment, the Final EA and FONSI are arbitrary and capricious, an
abuse of discretion and contrary to law.
THIRD CLAIM FOR RELIEF
FAILURE TO ADEQUATELY EVALUATE IMPACTS ON CHILDREN
88. Plaintiffs reallege and incorporate by this reference the allegations contained
above as though fully set forth herein.
89. Executive Order 13045 (Protection of Children) (EO 13045) requires an
assessment of health risks and safety risks that may disproportionately affect children.
90. The impact of noise on the cognitive development of children has been recognized
in the scientific literature. For example, a 2011 study by the World Health Organization (and
included in Plaintiffs comments) addressed at length the adverse impact that airport noise in
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particular has on the cognitive development of children. "Burden of disease from environmental
noise: Quantification of healthy life years lost in Europe," pp. 45-53 (WHO Study).
91. EPA has advised in a 2012 memorandum regarding Addressing Childrens Health
through Reviews Conducted Pursuant to the National Environmental Policy Act and Section 309
of the Clean Air Act, that NEPA documents, including environmental assessments, should
consider the impact that noise can have on childrens health and learning, especially when it
occurs near homes, schools, and daycare centers.
92. The Final EA states that [s]tudies show that noise can interfere with student
learning show impacts [sic] when the outside noise levels are greater than 65 dBA; however,
no schools are located within the 65 dBA. Final EA at 4-23.
93. The noise impacts upon children, however, are not limited to noise experienced
in the school or daycare setting. The impact on children living within the flight patterns
must also be taken into account. Much of the noise contour identified in the Final EA
extends over residential neighborhoods. According to the Final EA, up to 128 single family
residences and 4 multifamily residences are within the 65dBA DNL contour alone. Children
living in those residences will be adversely impacted by the noise and the Air Force has an
obligation under NEPA and EO 13045 to undertake a meaningful evaluation of the nature
and extent of those impacts.
94. Nor is the impact limited to children within the 65dBA DNL contour. Impacts
to health are experienced at lower levels as well. The WHO study found that levels as low as
30 dBA could disturb sleep and result in documented health impacts. See WHO Study,
Table 4.1 Ranges for the relationship between nocturnal noise exposure and health effects in
the population, p. 58.
95. The Final EA completely ignored the 2011 WHO Study and the EPA
memorandum as well as other studies noted by various other commenters. It also failed to
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address impacts on children living both within the 65dBA DNL contour, and children living
outside the contour but within the flight paths.
96. Because the Final EA fails to even address the potential health impacts that the
proposed action would have on children living within the flight pattern, it fails to comply
with EO 13045 and NEPA; as a result, the Final EA and FONSI are arbitrary and capricious,
an abuse of discretion and contrary to law.
FOURTH CLAIM FOR RELIEF
FAILURE TO ADEQUATELY EVALUATE HEALTH IMPACTS GENERALLY
97. Plaintiffs reallege and incorporate by this reference the allegations contained
above as though fully set forth herein.
98. In their Comment Letter to the Revised Draft EA, Plaintiffs raised the issue of
health impacts of the proposed action, and in particular, the heath impact of noise.
99. In their comments to the Revised Draft EA, Plaintiffs alerted the USAF to a
2013 study by the Harvard School of Public Health and Boston University School that analyzed
noise impacts from 89 airports in the United States and utilized data for approximately six million
study participants, Correia, Andrew W., Peters, Juenette L., Levy, Jonathan, Melly, Steven,
Dominici, Francesca, Residential Exposure to Aircraft Noise and Hospital Admissions for
Cardiovascular Diseases: Multi-airport Retrospective Study, BMJ 2013; 347:f5561 (2013
Harvard Noise Study).
100. In the 2013 Harvard Noise Study, noise levels were estimated at the centroid of
each census block surrounding each of the 89 airports out to a minimum of 45 dB . . . . The
study found a statistically significant association between exposure to aircraft noise and risk of
hospitalization for cardiovascular diseases among older people living near airports. This relation
remained after controlling for individual data, zip code level socioeconomic status and
demographics, air pollution, and roadway proximity variables. 2013 Harvard Noise Study at p.
6.
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101. Plaintiffs also referenced a study of individuals living in the vicinity of Heathrow
Airport in London that had reached similar conclusions at about the same time as the American
study. Hansell, Anna, Blangiardo, Marta, Fortunato, Lea, Floud, Sarah, Kees de Hoogh, Frecht,
Daniela, Ghosh, Rebecca, Laszlo, Helga, Pearson, Clare, Beale, Linda, Beevers, Sean, Gulliver,
John, Best, Nicky, Richardson, Sylvia, Elliott, Paul, Aircraft noise and cardiovascular disease
near Heathrow airport in London: small area study. BMJU 2013: 347:f5432.
102. In the Final EA, the USAF states, [t]he impact of aircraft noise on physical and
mental health has been the subject of numerous studies. Studies have examined impacts from
various sound levels and length of exposure, with some studies indicating that there is a
relationship between aircraft noise and aspects of physical and mental health, but others showing
contradictory or inconclusive results. Final EA at 3-25 through 3-26.
103. The Final EA goes on to very briefly discuss a 2008 update to a 1985
Transportation Research Board/National Academy report (TRB report) substantiating
contradictory studies and a 2000 Federal Interagency Committee on Aviation Noise
(FICAN) report summarizing research on the effects of aircraft noise on classroom learning.
104. The Final EA concludes by stating that the TRB report and others report that
further research is needed to establish definitive causal relationships. Final EA at 3-27.
However, the Final EA totally ignores the 2013 Harvard Noise Study which provided a much
finer degree of analysis, controlling for many of the factors earlier studies had identified, as
well as other studies cited by Plaintiffs in their comment letter.
105. Agencies are free to reject critical comments on their analysis so long as
credible opposing views are identified and an agency explains why comments do not warrant
further agency response, citing the sources, authorities, or reasons which support the
agencys position. . . . (40 C.F.R. 1503.4); however, the USAF has an obligation under
NEPA to keep itself informed of the latest research results, including, but not limited to the
recent reports identified in Plaintiffs comment letter. (40 C.F.R. 1502.22(a)).
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106. [G]eneral statements about possible effects and some risk do not constitute a
hard look absent a justification regarding why more definitive information could not be
provided. League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S.
Forest Service, 689 F.3d 1060 (9th Cir. 2012).
107. Because the Final EA fails to fully and adequately address the health impacts
its proposed action has on the Tucson residents living within the TFT flight pattern, the Final
EA and FONSI are arbitrary and capricious, an abuse of discretion and contrary to law.
FIFTH CLAIM FOR RELIEF
FAILURE TO USE AN APPROPRIATE NO ACTION ALTERNATIVE
108. Plaintiffs reallege and incorporate by this reference the allegations contained
above as though fully set forth herein.
109. In order to provide sufficient evidence and analysis for determining whether
to prepare an environmental impact statement, an EA must evaluate alternative actions. 40
C.F.R. 1508.9(a)(1) & (b).
110. In the Draft EA, the USAF considered four alternatives including a No Action
Alternative in its alternatives analysis. Draft EA at 2-2 through 2-3.
111. In their Comments on the Draft EA, Plaintiffs pointed out that because there was
no current NEPA-compliant decision authorizing overflights by aircraft other than A-10s, the No
Action alternative in the Draft EA was improperly defined. The only NEPA-compliant OSB
program was the one that was in existence in 1978. Consequently, they asserted that it, not the
program as it existedin violation of NEPAin 2009, should be used as the No Action
Alternative.
112. In the Revised Draft EA, the USAF continued to use 2009 as the No Action
Alternative. It argued that 2009 was a better no action alternative because it is similar to the
average number of annual sorties flown between 2002 and now. Revised Draft EA at 2-5.
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113. As Plaintiffs pointed out in their comments to the Revised Draft EA, there is
nothing in applicable law or guidance regarding the no action alternative that suggests that an
agency can take average activity over a twelve year period and call that the no action
alternative. In fact, the number of TFT sorties flown in 2009, 1408, is substantially greater than
the number of TFT sorties flown in more recent years (for example, according to the USAF,
there were 519 TFT sorties in 2013, 888 in 2012, and 782 in 2011). Using 2009 as a no-
action alternative deliberately understates the significance of the proposed increase.
114. In their comments to the Revised Draft EA, Plaintiffs suggested that if the USAF
did not use 1978 as the no action alternative, then the only acceptable alternative was to use the
current program as recommended by CEQ for ongoing programs. See Question 3, Forty Most
Asked Questions Concerning the Council on Environmental Qualitys National Environmental
Policy Act Regulations, 46 Fed. Reg. 18026 (March 23, 1981, as amended) See also Seattle
Audubon Society v. Lyons, 871 F. Supp. 129, W.D. Wash. 1994 (affirmed that the current
management was the correct no action alternative even though it was different from the
alternative chosen in the existing management plan, which had been held invalid by a court).
115. The analysis of the no action alternative under either scenario - 1978 or the
present - deserves full analytical treatment.
116. Because the Final EA fails to fully and adequately address an appropriate no
action alternative, the Final EA and FONSI are arbitrary and capricious, an abuse of
discretion and contrary to law.
SIXTH CLAIM FOR RELIEF
PUBLIC NOTICE/ENVIRONMENTAL JUSTICE
117. Plaintiffs reallege and incorporate by this reference the allegations contained
above as though fully set forth herein.
118. In the Final EA, the Air Force acknowledges, as it must, that a disproportionate
number of minority and low-income populations are affected by noise as compared to other
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populations in Tucson (Final EA, p. 3-22, Table 3-11). In fact, all but one of the adversely
affected census tracts has been determined to be a geographic area that is disproportionately
populated by minority or low income residents.
119. Executive Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations, February 11, 1994, and the
accompanying President Memorandum, include specific direction on environmental justice
within the context of NEPA. In particular, Section 5-5 on Public Participation and Access
to Information encourages federal agencies to translate crucial public documents, notices
and hearings for limited English speaking populations and directs agencies to work to ensure
that public documents, notices and hearings are concise, understandable and readily
accessible to the public.
120. The CEQs Environental Justice Guidance Under the National Environmental
Policy Act (December 10, 1997) provides more detailed guidance on integrating
environmental justice issues into the NEPA process on these points (CEQ Guidance, pp. 11-
13).
121. The EPA Guidance for Incorporating Environmental Justice Concerns in
EPAs NEPA Compliance Analyses, August, 1998, also addresses incorporating
environmental justice considerations into the NEPA process and provides even more detailed
recommendations on outreach to environmental justice communities, including providing
simultaneous translation of discussion at meetings, using local translators where possible,
translation of key documents in their entirety, establishing comment lines and many more
ideas. EPA EJ Guidance, p. 41, Exhibit 4.
122. Finally, USAFs own Guide for Environmental Justice Analysis with the
Environmental Impact Analysis Process (EIAP), Department of the Air Force, November
1997, states that, [p]ublic outreach and advertising of the process should be directed
specifically toward minority and low-income groups, as well as toward the general public, to
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encourage these groups to identify themselves and their concerns. This effort should include
coordination with federal, state, local, and tribal governments and agencies; local groups;
community leaders; and social agencies in the local community to identify target groups and
the channels (including non-English language where necessary) that would reach these
groups. Air Force EJ EIAP Guidance, p. 5, emphasis added.
123. The Air Force guidance goes on to discuss identifying various social service
agencies, religious organizations, public interest organizations and other such groups that
may be working directly with the affected communities and gives detailed guidance on doing
so. The Air Force guidance also states that:
All minority and low-income groups thus identified should be
specifically notified of the availability of any information
requesting input into the planning process and any subsequent
environmental justice documents available for review. . . .
Information should be presented in clear, nontechnical language.
It may be advisable to schedule separate, smaller scoping
meetings at community locations where minority and low-
income populations would feel more comfortable participating,
such as a church, school or community center.
Air Force EJ EIAP Guidance, p. 6.
124. Although the Final EA claims that the USAF reached out to the affected
communities, this statement is false both with respect to the original Draft EA and with the
Revised Draft EA.
125. The public notification for the availability of and the comment period on the
Draft EA was seriously flawed. In the Draft EA, the statement is made that, [s]imilar
notices were sent confirming the availability of the draft EA, in an attempt to provide
meaningful involvement of the low-income and minority populations. (Draft EA p. 4-15)
However, no notices were received by residents of the Julia Keen neighborhood. This was
confirmed by residents of the area as well as by an Air Force representative who confirmed
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to one of those residents that a mistake had been made in the text of the Draft EA that would
be corrected in the final EA.
126. A request was made to translate at least the executive summary of the Draft EA
into Spanish, given the high preponderance of Spanish-speaking residents in the most
directly affected neighborhoods. In response the USAF translated the executive summary (5
pages of 144 pages) that it posted on the DMAFB website on the last day of the initial
comment period.
127. No fliers or post cards advising of the release of the Revised EA were directed
to the Julia Keen neighborhoodthe neighborhood most directly affected. Rather, the
USAF relied almost exclusively on internet notifications and the DMAFB website, even
though low income minority communities are less likely to have internet access.
128. The only Spanish translation prepared in connection with the Revised EA was
of the proposed FONSI.
129. These efforts were simply insufficient to allow for meaningful participation by
the residents that the USAF admits are disproportionately affected by the proposed action
and failed to comply with the federal requirements regarding environmental justice.
130. Executive Order 12898 also requires an analysis of the environmental effects,
including human health, economic and social effects of Federal actions on the minority and
low income communities being affected by the proposed action.
131. The Sample Environmental Justice Analysis found in the Air Force
Guidance focuses on noise from both aircraft and surface traffic. Air Force EJ EIAP
Guidance, Appendix E, p. E-3.
132. The Final EA has no such analysis of either aircraft or surface noise, despite
the virtual quadrupling of the number of TFT flights on the impacted group of residents.
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133. Because the USAF failed to fully evaluate the environmental justice impacts of
the proposed action on the human environment, the Final EA and FONSI are arbitrary and
capricious, an abuse of discretion and contrary to law.
SEVENTH CLAIM FOR RELIEF
FAILURE TO PREPARE AN EIS
134. Plaintiffs reallege and incorporate by this reference the allegations contained
above as though fully set forth herein.
135. The purpose of the NEPA analysis is to ensure that the agency has conducted
an adequate assessment of the environmental impacts of the proposed action. In certain
circumstances, agencies may first prepare an EA to make a preliminary determination
whether the proposed action will have a significant environmental effect. If the EA
establishes that the agency's action may have a significant effect upon the environment, an
EIS must be prepared. If not, the agency must issue a FONSI accompanied by a convincing
statement of reasons to explain why a project's impacts are insignificant. Regardless of
whether an EA or EIS is prepared, however, the agency must demonstrate that it took a "hard
look" at the environmental consequences of the proposed action and that it considered all
foreseeable direct and indirect impacts.
136. Some of the factors considered in determining whether or not a project
significantly affects the human environment include the existence of impacts to public
health and safety, whether or not the effects are highly controversial, and whether the action
is related to other actions with cumulatively significant impacts. See 40 C.F.R. 1508.27.
137. A party seeking to show that an agency should have prepared an EIS instead of
a FONSI need not demonstrate that significant effects will occur, but rather must show only
that there are substantial questions whether a project may have a significant effect on the
environment.
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138. Here, there are a number of factors that support a finding that the action is
significant and requires an EIS:
a. The proposed action has the potential to have a significant effect on public
health and safety.
b. The proposed action is controversial. The USAFs decision to ignore
supplemental metrics when evaluating noise impacts is contrary to recent guidance
from the DOD.
c. The proposed actions effect on the human environment is highly uncertain.
139. The USAFs FONSI was arbitrary and capricious, an abuse of discretion,
contrary to law and not supported by the record.
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that judgment be entered in favor of
the Plaintiffs and against defendants as follows:
1. A Declaratory Judgment finding that defendants actions were arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law and that:
(a) USAF actions are in violation of NEPA;
(b) The Revised EA was inadequate as a matter of law it failed to take the
required hard look at the impacts of the proposed action,
2. A Mandatory Injunction requiring the USAF to prepare an EIS that fully and
adequately evaluates all of the impacts of the proposed action,
3. Award Plaintiffs their costs and reasonable attorneys fees.
4. Award such other and further relief as the Court deems just and equitable.
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Respectfully submitted this 22nd day of January 2016
Arizona Center for Law
In the Public Interest
P.O. Box 41835
Tucson, AZ 85717
s/Joy E. Herr-Cardillo
Joy E. Herr-Cardillo Timothy M. Hogan
Case 4:16-cv-00046-JR Document 1 Filed 01/22/16 Page 28 of 29
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Case 4:16-cv-00046-JR Document 1 Filed 01/22/16 Page 29 of 29
NATURE OF THE ACTIONJURISDICTION and VENUEPARTIESSTATUTORY FRAMEWORKTHE NATIONAL ENVIRONMENTAL POLICY ACTADMINISTRATIVE PROCEDURE ACT
ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEFFIRST CLAIM FOR RELIEFFAILURE TO EVALUATE CUMULATIVE IMPACTS
SECOND CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE NOISE IMPACTS
THIRD CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE IMPACTS ON CHILDREN
FOURTH CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE HEALTH IMPACTS GENERALLY
FIFTH CLAIM FOR RELIEFFAILURE TO USE AN APPROPRIATE NO ACTION ALTERNATIVE
SIXTH CLAIM FOR RELIEFPUBLIC NOTICE/ENVIRONMENTAL JUSTICE
SEVENTH CLAIM FOR RELIEFFAILURE TO PREPARE AN EIS
RELIEF REQUESTEDFinal Complaint without verification.pdfNATURE OF THE ACTIONJURISDICTION and VENUEPARTIESSTATUTORY FRAMEWORKTHE NATIONAL ENVIRONMENTAL POLICY ACTADMINISTRATIVE PROCEDURE ACT
ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEFFIRST CLAIM FOR RELIEFFAILURE TO EVALUATE CUMULATIVE IMPACTS
SECOND CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE NOISE IMPACTS
THIRD CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE IMPACTS ON CHILDREN
FOURTH CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE HEALTH IMPACTS GENERALLY
FIFTH CLAIM FOR RELIEFFAILURE TO USE AN APPROPRIATE NO ACTION ALTERNATIVE
SIXTH CLAIM FOR RELIEFPUBLIC NOTICE/ENVIRONMENTAL JUSTICE
SEVENTH CLAIM FOR RELIEFFAILURE TO PREPARE AN EIS
RELIEF REQUESTED
Final Complaint without verification.pdfNATURE OF THE ACTIONJURISDICTION and VENUEPARTIESSTATUTORY FRAMEWORKTHE NATIONAL ENVIRONMENTAL POLICY ACTADMINISTRATIVE PROCEDURE ACT
ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEFFIRST CLAIM FOR RELIEFFAILURE TO EVALUATE CUMULATIVE IMPACTS
SECOND CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE NOISE IMPACTS
THIRD CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE IMPACTS ON CHILDREN
FOURTH CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE HEALTH IMPACTS GENERALLY
FIFTH CLAIM FOR RELIEFFAILURE TO USE AN APPROPRIATE NO ACTION ALTERNATIVE
SIXTH CLAIM FOR RELIEFPUBLIC NOTICE/ENVIRONMENTAL JUSTICE
SEVENTH CLAIM FOR RELIEFFAILURE TO PREPARE AN EIS
RELIEF REQUESTED