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February 25, 1975

UNITED STATES POSTAL SERVICE and E. T. Klassen, Individually and as Postmaster General, Defendants

The opinion of the court was delivered by: WARD

Plaintiffs, individuals residing in the Manhattan community of Chelsea and organizations representing different segments of the Chelsea community, move for an order pursuant to Rule 65, Fed.R.Civ.P., granting a preliminary injunction enjoining defendants, United States Postal Service and E. T. Klassen, from proceeding with the construction of a Vehicle Maintenance Facility ('VMF') located in the square block bounded by Ninth and Tenth Avenues and 28th and 29th Streets in Manhattan. Defendants cross-move for an order pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P., dismissing this action or granting them summary judgment. For the reasons hereinafter stated, plaintiffs' motion is granted and defendants' cross-motion is denied.

The subject matter of this action, as summarized in the Environmental Statement ('EIS') filed by the Postal Service, is the construction

'of a major U.S. Postal Service vehicle maintenance facility (VMF) in combination with a multi-story housing project in the lower West Side of the Borough of Manhattan, New York City. The project will occupy an entire city block, presently vacant, adjacent to the Morgan Station mail processing center. Features of the proposed action are a multi-story VMF, a housing project of approximately 860 units utilizing air rights space above the VMF, and the closure of 29th Street between Ninth and Tenth Avenues to non-postal traffic, except during the evening rush period.'

 (EIS et 1)

 The site of the proposed project is immediately north of Chelsea Park and P.S. 33 and west of the Penn South housing complex at the northern end of the Chelsea residential community. Known as the 'Morgan Annex' site, the property was originally acquired by the Post Office Department in 1968 for use as a mail processing annex to Morgan Station. This original plan was abandoned when the Postal Service decided to build a large bulk foreign mail processing facility in Secaucus, New Jersey. Since the demolition of the housing, garages and small manufacturing facilities which occupied the site, the Postal Service has used the property for parking postal trucks, trailer units and employee vehicles.

 It appears that the Postal Service began considering construction of a VMF on the Morgan Annex site in 1971. In the fall of that year, Postal Service officials apprised city government officials and congressional representatives of the proposed action. Local citizens and government officials, however, were anxious to obtain the site for residential development. Consequently, on June 16, 1972, Congress enacted Section 6(b) of P.L. 92-313, 86 Stat. 216 which required the Postal Service to grant New York City the air rights over the postal facility at the Morgan Annex site for residential use and to construct its facility in such a manner as to permit this residential construction. *fn1"

 During the early fall of 1972, the Postal Service directed the Army Corps of Engineers, New York District, to prepare an Environmental Statement for the proposed project. The initial draft of this Statement dated December 15, 1972 was released to local interest groups and city officials in January, 1973. Meetings were held and comments were received. The Revised Draft Environmental Statement was issued in November, 1973. This draft was circulated and comments were requested. The Final Environmental Statement, dated March 26, 1974, was submitted to the Council on Environmental Quality which published its receipt on April 8, 1974 in the Federal Register. 39 Fed.Reg. 12783.

 The VMF portion of the project will contain approximately 800,000 square feet of multi-story interior space rising approximately 80 feet above street level. It will provide parking space for 918 postal vehicles, including 771 trucks, 93 tractors and 24 trailers. The facility is designed to include service and repair bays, wash racks, a paint and body shop, and dispatching and fueling facilities and operations. This VMF will serve all of Manhattan south of 41st Street and the west side of Manhattan north of 41st Street to 134th Street. It will replace three existing Postal Service facilities: Leroy Street Garage, 34th Street Garage and Piers 74-76. Approximately 2,200 postal vehicle movements into and out of the VMF are anticipated on an average weekday with approximately 180 vehicle movements per hour between the hours of five and seven in the morning.

 At the time the final EIS was issued, plans for the housing component of the project provided for a total of 864 apartment units divided between two 27 story towers and two low-rise apartment clusters. The towers front Ninth and Tenth Avenues with elevator entrances on each Avenue. Remaining portions of the VMF roof would serve as recreation areas and a plaza for the housing with attendant community services. The proposed housing mix was 60 percent moderate income, 30 percent low income and 10 percent senior citizens.

 The housing component and the VMF component are not independent. Together, they comprise what the EIS calls a 'structurally integrated VMF-housing project.' The VMF is to provide the foundations for the housing and, therefore, determines many aspects of the latter's design. According to the final EIS:

 'The configuration of the housing component of the project -- that is, high rise apartment towers on the avenues and low-rise units mid-block -- has been dictated largely by the interior spatial and circulatory requirements of the VMF.'


 As a result, special accoustical treatment is required to insulate housing units fronting the avenues from unacceptable noise levels. A principal justification for rejection of alternative configurations of the housing component which would require less accoustical treatment was, according to the EIS, that these alternatives would reduce the 'efficiency and utility of VMF interior spaces.' The VMF is, likewise, structurally dependent upon the housing component. The former must have an exhaust system to control the air quality within the facility. The EIS states at III-19:

 'The entire VMF building will be ventilated with exhaust stacks on top of the air rights structure.'

 On July 15, 1974, the plaintiff Chelsea Neighborhood Associations by letter from its legal counsel made formal demand on the Postal Service to abandon the VMF and convey or lease the site to New York City for strictly residential purposes. Counsel requested that the Service consider another alternative site, 'The Yale Express' site. By letter dated August 15, 1974, the Postal Service rejected this demand.

 Plaintiffs instituted this action on August 26, 1974 seeking a declaration that in proceeding with construction of the VMF, the Postal Service violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ('NEPA') and the Clean Air Act, 42 U.S.C. § 1857 et seq., an injunction against construction of the facility until there is compliance with these laws and mandamus requiring the Postal Service to develop information on an alternate site for the VMF and reevaluate whether the VMF is needed and should be built.

 The complaint alleges that the Postal Service consistently used the housing as a justification for the construction of the VMF without considering the environmental impact of the housing, improperly segmenting the project and thereby violating NEPA. It alleges further violations of NEPA in that the EIS, which was filed, failed to consider other construction projects scheduled in and around the Chelsea community, treating the VMF in isolation; inaccurately represented the noise and air pollution that would result from the VMF; and inadequately discussed feasible alternatives. The complaint alleges violations of the Clean Air Act in that air pollution from the VMF, in cumulation with that from other sources, will result in violations of primary standards for health protection promulgated by the United States Environmental Protection Administration. It, also, alleges violation of this statute in the failure to obtain a state indirect source permit. The complaint, also, alleges that the Postal Service violated 39 U.S.C. § 101(g) in refusing to consider what is alleged to be the less costly Yale Express garage.

 The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 39 U.S.C. § 409.

 Plaintiffs' motion for a preliminary injunction presents most of the issues raised by the complaint. Defendants' cross-motion to dismiss, or in the alternative for summary judgment, urges that neither NEPA nor the Clean Air Act apply to the Postal Service and that, if these statutes do apply, the Service has violated neither in connection with the planned construction of the VMF. Defendants do not contest plaintiffs' standing to raise these issues except the alleged violation of 39 U.S.C. § 101(g).

 The threshold question presented is whether the Postal Service is subject to NEPA. The defendants argue that 39 U.S.C. § 410 *fn2" exempts the Postal Service from the requirements of NEPA.

 Only one case appears to have squarely dealt with whether the Postal Service is exempt from NEPA by virtue of § 410. In City of Thousand Oaks v. United States et al., Civil No. 74-2186 (C.D.Cal. Sept. 3, 1974), the district court concluded that as NEPA was not one of the specific exceptions enumerated in § 410(b), § 410(a) exempted the Postal Service from the application of NEPA. In a brief per curium order, the United States Court of Appeals for the Ninth Circuit, affirmed the judgment of the district court dismissing the action. However, the Court stated:

 'We do not approve the basis upon which the trial court dismissed . . . .'

 The Court of Appeals affirmed the judgment of dismissal on the ground that the negative statement by the Postal Service was sufficient to show no environmental impact. City of Thousand Oaks v. United States et al., Docket No. 74-2685 (9th Cir. October 1, 1974). In light of the summary nature of the affirmance, the decision in City of Thousand Oaks, supra, is of limited precedential value in resolving the question before this Court. It does, however, suggest that defendants' reliance on § 410 for relief from the requirements imposed by NEPA is misplaced. Such a conclusion is buttressed by the decision in Maryland National Capital Park and Planning Commission v. United States Postal Service, 159 U.S.App.D.C. 158, 487 F.2d 1029 (1973). There, the court concluded that unless the environmental problems posed by the building of a Bulk Mail Center lacked 'significance' a full impact statement under NEPA 'would seem to be indicated.' Id. at 1041. The decision implies that NEPA would be fully applicable to the Postal Service. However, as the § 410 exemption is not discussed in the decision, it is not dispositive of the question now before this Court.

 In order to resolve this question, it is first necessary to ascertain the purposes of NEPA. These are unequivocably declared ...

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