been delegated to Mr. Sheaffer, the Chief of the District of Columbia Department of Highways and Traffic's Office of Engineering. The certification was made in two letters from Mr. Sheaffer to Mr. Hall, the Bureau of Public Roads Division Engineer. (Plaintiffs' exhibits 88, 96). The first letter dated August 29, 1969, certifies that public hearings had been held and that the department had considered the economic effects of the project. In a letter dated October 9, 1969, Mr. Sheaffer supplemented this certification by stating that the highway department had considered not only the economic effects of the bridge, but also its social effects, its effects on the environment, and its consistency with such urban planning as has been promulgated by the community. The first certification was based on the requirements of § 128(a) as they existed prior to 1968, while the supplementary certification was prepared for the purpose of complying with the section as amended by § 24 of the Federal-Aid Highway Act of 1968.
The plaintiffs contend that the certifications are invalid because they were not made by Mayor Washington, the official who is required by this statute and Title 7 of the D.C. Code to make the certification. This is the same argument that is raised in connection with § 103. For the reasons stated in the Court's ruling on that section, infra, this argument is rejected as insufficient to establish noncompliance with § 128.
The first certification required by § 128(a) is that public hearings have been held or the opportunity for public hearings afforded. This Court has ruled that the District of Columbia has not held the public design hearings required by the Department of Transportation Policy and Procedure Memorandum 20-8, the hearing regulation implementing § 128(a). Therefore, the certification that the public hearings have been held as required by § 128 is not supported by the record, and must be set aside.
The plaintiffs contend that the certifications must be set aside as arbitrary and capricious in that Mr. Sheaffer, the official who made the certifications, did not know if adequate consideration had been given within the highway department to the factors included in the certification. Mr. Sheaffer testified that all matters pertaining to planning and the consideration of the economic, social, and environmental effects of highway projects are carried on by the highway department planning staff before a project was submitted to his division within the department. (Tr. 457). Therefore he could not say of his own personal knowledge what specific economic, social or environmental effects of the proposed bridge project had been considered by the department at the time of his certification, (Tr. 433-34) or how the project was consistent with local urban planning. (Tr. 435). He stated that he was confident that the planning staff of the department had considered all of the requirements of the statute. (Tr. 434, 458). But the basis of his confidence was not any personal knowledge that the statutory requirements had actually been complied with, but his assumption that all of the required factors had been taken into consideration in order for the project to have progressed to the stage of submitting construction plans to the Bureau of Public Roads for approval. (Tr. 458).
The Court recognizes that § 128 requires that the certification be made by the state highway department rather than by any specific individual. If the certification requirement is to be given any effect, however, the certificate should be made by an official who has some knowledge of the actions to which he is certifying. Of course, no one individual within the department would have considered all of the requirements of the section personally, but the certifying officer should be one who knows as a fact that the actions to which he is certifying have been taken. In this case, Mr. Sheaffer relied on his assumption that all of the required effects had been considered merely because the project had reached the stage where the certification is normally made. The Court finds that this assumption is an insufficient basis for the certification.
The plaintiffs also contend that the certification that the project was consistent with the goals and objectives of such urban planning as has been promulgated for the community is not supported by the record because of the National Capital Planning Commission comprehensive transportation plan which did not include the Three Sisters Bridge. This is the same argument that was raised in connection with § 134. For the reasons stated in the Court's ruling on that section, infra, the Court rejects this contention.
23 U.S.C. § 109(a)
This section provides as follows:
The Secretary shall not approve plans and specifications for proposed projects on any Federal-aid system if they fail to provide for a facility (1) that will adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance; (2) that will be designed and constructed in accordance with standards best suited to accomplish the foregoing objectives and to conform to the particular needs of each locality.
The duties imposed on the Secretary of Transportation by this section have been delegated to the Bureau of Public Roads' Division Engineer for the area in which the project is to be constructed. The question before the Court in determining whether there has been compliance with § 109 for the Three Sisters Bridge project is whether the Division Engineer for the District of Columbia, Mr. Hall, in approving certain plans and specifications for preliminary construction for the bridge, reasonably concluded that the facility would satisfy traffic needs "in a manner conducive to safety, durability and economy of maintenance."
On September 2, 1969, Mr. Hall approved the plans, specifications, and estimates for the construction of the piers for the Three Sisters Bridge, which had been submitted to him by the District of Columbia Department of Highways and Traffic earlier that day. (Plaintiffs' exhibits 89, 90). This approval was, in effect, an authorization to begin construction of the piers. The District then proceeded to advertise for bids for the construction of the piers, and later that month awarded a contract for preliminary construction work on the piers.
The plaintiffs contend that Mr. Hall's approval of the plans, specifications and estimates for the construction of the piers violated § 109 in that at the time of the approval there were unresolved problems relating to (1) the foundation conditions at the bottom of the river at the bridge location, (2) the structural feasibility of the planned design of the bridge superstructure, and (3) the possible adverse effects to health of any increase in air pollution which might be caused by the bridge.
The Court does not believe that the problems which have developed regarding the condition of the river bed at the bridge site are such as would render Mr. Hall's approval of the preliminary construction plans violative of § 109. Before the construction of a bridge, it is necessary to make extensive investigations of subsurface conditions to determine if they are sufficient to support the foundations for the bridge piers. This is done primarily by means of borings "to determine the elevation * * * and the character of the base rock." (Tr. 602). At the time Mr. Hall approved the plans, specifications and estimates for the pier construction, these borings had not been completed, and subsequently problems developed so that the plans for the project had to be modified. (Tr. 603). But Mr. Hall emphasized that there is no question that the piers can be built to support the bridge as presently planned. (Tr. 603). He explained that preconstruction boring and other testing of the subsurface is not conclusive, and that it is only after the commencement of the actual excavation for the pier foundations that the engineers can be certain that subsurface conditions are sufficient to support the piers. (Tr. 604). In view of the above, the Court concludes that the fact that Mr. Hall was not certain of the subsurface conditions at the time when he approved the plans for the construction of the piers does not render that approval inconsistent with the requirements of § 109.
Similarly, the Court is not convinced from the evidence in this case that the possible air pollutional effects of the bridge project represents a sufficient hazard to the health and safety of highway users to justify a finding by this Court that the defendants are required to undertake a study of such effects before the responsible official of the Department of Transportation may make the finding required by § 109 that the project is safe as planned.
A more serious problem is raised by the question of whether the bridge project as presently planned is structurally feasible. Structural feasibility, i.e., whether the planned bridge can be built so that it will stand up under normal use, is certainly an element which must be considered by the Division Engineer and by this Court in determining whether the § 109 requirement has been met. The bridge as presently planned will consist of abutments on the District and Virginia shores, with a span from each of these abutments to a pier located a short distance from each shore, and a long 750 foot span between the two piers. The bridge will be a prestressed concrete box girder structure, having the appearance of a flat arch. This design was among those developed by the consulting engineers in their Type, Size and Location Report prepared in 1967, (plaintiffs' exhibit 57) and has been approved by the Fine Arts Commission. (Plaintiffs' exhibit 54; Tr. 573). The bridge is of a type not previously used extensively in this country, and the 750 foot main span will make it the longest prestressed concrete bridge of its type in the world. (Plaintiffs' exhibit 69).
The evidence in this case indicates that the structural feasibility of the presently planned bridge was a matter of great concern among officials of the Federal Highway Administration prior to Mr. Hall's approval of the plans for pier construction in September, 1969, and that it remains an unresolved question. In September, 1968, Mr. Wilkes, the Chief Bridge Engineer of the Bureau of Public Roads, noted his concern with both the structural feasibility and the appearance of the proposed bridge design, and suggested that a comprehensive feasibility study and model testing be undertaken before a final commitment was made to the design.
Mr. Turner, the Federal Highway Administrator, testified that he concurs in these views. (Tr. 923). In late 1969, he requested additional feasibility studies and model testing by the District of Columbia Department of Highways and Traffic. (Tr. 605, 609-10). He has also sent a delegation of engineers to Europe to study bridges of similar types there. (Tr. 918).
Mr. Turner expressed his continuing concern in a memorandum to Mr. Schofer, the Regional Federal Highway Administrator, in March 1970 (plaintiffs' exhibit 113):
In our memorandum of September 6, 1968, we requested that a comprehensive feasibility study be made for the proposed design which would take into account the effect of the curvature of the end spans and skew of the abutments. We are still concerned that the combination of the adverse geometry of the superstructure, the unconventional design details, the extreme lack of design experience of a structure of this type and the complete absence of this particular construction experience in this country make the undertaking extremely hazardous and fraught with danger. To the best of our knowledge, very little has been accomplished to alleviate this concern. The 1968 Federal-Aid Highway Act directs the construction of certain projects within the District of Columbia including the Three Sisters Bridge, I-266 crossing of the Potomac River. Such construction was to be undertaken as soon as possible and "shall be carried out in accordance with all applicable provisions of Title 23 of the United States Code." Section 109 of Title 23, CFR, requires that
The Secretary shall not approve plans and specifications for proposed projects on any Federal-aid system if they fail to provide for a facility (1) that will adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability and economy of maintenance; (2) that will be designed and constructed in accordance with standards best suited to accomplish the foregoing objectives and to conform to the particular needs for each locality.
At the meeting in my office on March 20, 1970, an agreement was made with Mr. T.F. Airis, Director of the Department of Highways and Traffic, that a feasibility study would be initiated to determine the proper cross section design for the bridge. In addition to the design proposed by the District of Columbia, one or more of a conventional cross section would be included in the investigation. As a second phase of the investigation, it was agreed that a scale model of the section determined to provide the optimum of engineering and aesthetic properties would be constructed at a scale of about 1/15 for the purpose of load testing in order to verify the various design assumptions that must be made by the designer. However, the model testing phase will not be started until this office is satisfied that the cross section to be tested will provide the safety, durability and economy of maintenance that is required by Section 109 of Title 23, CFR. (Emphasis supplied).