Full opinion text
MEMORANDUM AND ORDER YOUNG, District Judge. I. INTRODUCTION The City of Waltham (“Waltham”) opposes construction of a regional mail processing facility by the United States Postal Service (“Postal Service”) at 200 Smith Street, Waltham. Waltham alleges that the Postal Service, in deciding to locate the facility at the Smith Street site, violated substantive and procedural requirements of the Postal Reorganization Act, 39 U.S.C. § 401 (1988), the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332 (1988), the Intergovernmental Cooperation Act (“ICA”), 31 U.S.C. § 6506 (1988), the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 (1988), and the Clean Water Act, 33 U.S.C. §§ 1342 and 1344 (1988). Waltham seeks a permanent injunction against the construction of the facility at this site, or, in the alternative, a temporary injunction against any construction-related activity at the site until the Postal Service: (1) prepares an Environmental Impact Statement with respect to the facility; (2) prepares a floodplains-wetlands study and a “no practicable alternative site” analysis; (3) provides a detailed explanation for all proposed environmental mitigation measures required for the facility; and (4) grants Waltham access to all Postal Service records related to the siting of the facility. The Postal Service moves for summary judgment pursuant to Fed.R.Civ.P. 56(b). Waltham opposes this motion and itself moves for summary judgment against the Postal Service. The Town of Lexington, which has intervened in this action, also opposes the motion by the Postal Service for summary judgment. II. FACTUAL BACKGROUND The Smith Street property consists of two parcels totalling 36.3 acres. Three interconnected commercial buildings totalling 326,902 square feet and associated parking lots are located on the site. It is undisputed that the site contains wetlands. The site’s access roads open to the east onto Smith Street, a north-south road running parallel to Route 128. One such access road is approximately two blocks south of the point in Lexington where Smith Street intersects Route 2, a limited access highway running east-west. The other access road is less than a few hundred feet north of the point where Smith Street intersects Trapelo Road which runs east from this intersection into Waltham and west for a few hundred feet to the Route 128 (1-95)— Trapelo Road interchange. The proposed Northwest Center Mail Processing Center (the “new facility”) is one element of the Postal Service “Boston Metro Plan” to improve regional postal service by modernizing operations at the Boston General Mail Facility (the “General Mail Facility”) and by transferring operations from that facility to regional mail processing centers in Brockton, Worcester, and a northwest suburban site. The Postal Service has determined that the General Mail Facility is incapable of meeting expected increases in mail volume due to space and layout inadequacies and the anticipated disruption of access to and from the General Mail Facility as a result of the commencement of two major highway construction projects in downtown Boston. Upon completion, the new facility will encompass an approximately 406,000 square foot enclosed area and will process mail originating from thirty-four zip code 021 Boston stations and destined for twenty-four zip code 021 Boston stations. In 1988, the Postal Service commenced its search for a location suitable for the new facility. The Postal Service determined that the preferred location should be somewhere within the area along Route 128 bounded by Lexington to the north and Needham to the south. By August, 1989, the Postal Service narrowed its list of potential sites to four locations in Waltham, and convened a site selection committee to evaluate these four. One site was eliminated because of difficulties in negotiating a sale or lease with its owner, the General Services Administration (the “GSA”). Of the other three, the committee selected the Smith Street property as the preferred site. The Postal Service then employed an environmental consulting firm, Rizzo Associates, to conduct an Alternative Site Environmental Analysis (the “Alternative Site Analysis”) of the three remaining sites. This analysis, dated December 29, 1989, compared the three sites in terms of potential problems regarding hazardous waste, wetlands, stormwater management, traffic, construction costs, and time delay. Based on environmental and cost comparisons, it concluded that the Smith Street site was the preferred site. On February 26, 1990, the Postal Service and Cabot, Cabot, and Forbes, the owner of the Smith Street site, entered into a purchase agreement for the site. This agreement was a conditional agreement authorizing the Postal Service to purchase the property for $38 million by November 30, 1990. In the interim, the Service agreed to make monthly option payments starting in May, 1990, totalling $2,400,000, of which $400,-000 were non-refundable. On May 15, 1990, the Postal Service released a “Site Planning Report, Environmental Assessment” (the “Initial Assessment”), evaluating the environmental issues related to developing the Smith Street site. On June 26, 1990, the Postal Service held a public hearing in Waltham at the Smith Street site concerning the proposed new facility. Approximately 150 persons attended, the majority of whom voiced strong opposition to the proposal. Opposition focused on the proposed facility’s traffic, noise, air, water quality, and tax revenue impacts. In September, 1990, the Postal Service released an updated environmental assessment entitled “Site Planning Report, Updated Environmental Assessment” (the “Updated Assessment”). The Updated Assessment, designed to supersede the Initial Assessment, addressed concerns raised regarding air, traffic, water quality, and noise impacts. It also evaluated the environmental impacts of a significant project design change involving greater use of the existing buildings on the site. Correspondence in October, 1990, expressed continued opposition to the proposed siting by the Mayor and City Council of Waltham as well as by Lexington and Waltham neighborhood associations. A Waltham City Council resolution requested a public hearing on the Updated Assessment, but the Postal Service denied this request. On November 6, 1990, the Board of Governors of the United States Postal Service gave its approval for the purchase of the Smith Street property to be used for the new facility. On November 9, the Postal Service issued a Finding of No Significant Impact (the “FONSI”) based on the Updated Assessment. Waltham, alleging that the Board of Governors was given false information about the Smith Street site and alternative sites, requested that the Board reconsider this approval. However, at its December meeting, the Board declined to reconsider its decision. Thus, on December 20,1990, the Postal Service acquired title to the Smith Street property. On May 7,1991, Waltham filed the action for declaratory and injunctive relief. In June, 1991, the Postal Service released its “Amendment to the Updated Environmental Assessment” (the “Amended Assessment”). The Amended Assessment had two stated purposes: to address environmental issues raised since the release of the Updated Assessment (particularly concerning traffic, wetland, floodplain, and stormwater impacts) and to describe and evaluate design changes not anticipated when the Updated Assessment was completed. The Amended Assessment concluded that its analysis supported the FONSI issued the previous November. III. WALTHAM’S CLAIMS Waltham contends that the siting of the new facility at 200 Smith Street will have serious detrimental impacts on wetlands, drinking water quality, traffic, public safety, residential areas, and tax revenues, thus irreparably harming the City and its residents. The central allegations of its Complaint are that the Postal Service violated mandatory environmental, wetlands, and intergovernmental review procedures by: (1) pre-selecting the Smith Street site without ever completing a mandatory wetlands study and a mandatory “no practicable alternatives” analysis, and before completing its environmental review; (2) using the illegal criterion of “political feasibility” as a primary factor in its site selection decision; (3) making repeated misrepresentations regarding the site selection process to local officials, denying them access to relevant public records, and failing to solicit and consider adequately public input regarding the site selection and environmental review process; (4) failing to consider adequately in its three Environmental Assessments the proposed facility’s environmental impacts at the Smith Street site relative to other alternative sites; and (5) relying on inadequate and undefined environmental mitigation measures in concluding that the new facility would not have a substantial impact on the environment. These allegations provide the basis for four somewhat overlapping counts. Count I alleges that the conduct of the Postal Service violated its own environmental review regulations adopted pursuant to the Postal Reorganization Act. 39 U.S.C. § 401. Count II alleges that this conduct violated NEPA, 42 U.S.C. § 4332, and its implementing regulations. Count III alleges that the Postal Service violated the ICA. 31 U.S.C. § 6506. Count IV alleges that the Postal Service failed to comply with the Clean Water Act. 33 U.S.C. §§ 1342 and 1344. The Court’s analysis will address Counts I and II first because these constitute Waltham’s central claims. The Court then will examine Counts III and IV. IV. COUNTS I AND II: THE POSTAL REORGANIZATION ACT AND NEPA CLAIMS Waltham makes two basic contentions in Counts I and II. First, Waltham claims that the Postal Service should have prepared an Environmental Impact Statement concerning its proposed construction of the new facility at the Smith Street site, and argues that the Postal Service Finding of No Significant Impact violated both NEPA and the Postal Service regulations under the Postal Reorganization Act because the Environmental Assessments supporting it failed to adequately consider the environmental impacts of the project. In essence Waltham challenges the substantive adequacy of the Environmental Assessments and the FONSI. Second, Waltham claims that the failure of the Postal Service to follow the requirements mandated by NEPA and by its own environmental review regulations under the Postal Reorganization Act fatally flawed the Postal Service Environmental Assessment/FONSI process. In essence, Waltham challenges the procedural adequacy of the Environment Assessment/FONSI process carried out by the Postal Service. Before evaluating these arguments, the Court will lay out the relevant legal framework under NEPA and will explain the applicable standard of judicial review. A. The Legal Framework under NEPA and the Postal Reorganization Act. The Supreme Court has summarized the purposes of the National Environmental Policy Act as follows: The sweeping policy goals ... of NEPA are ... realized through a set of “action-forcing” procedures that require that agencies take a “hard look at environmental consequences,” and that provide for broad dissemination of relevant environmental information. Although these procedures are almost certain to affect the agency’s substantive decision, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989) (citations omitted). Consistent with this view, the First Circuit has stated: NEPA is not designed to prevent all possible harm to the environment; it foresees that decisionmakers may choose to inflict such harm, for perfectly good reasons. Rather, NEPA is designed to influence the decisionmaking process; its aim is to make government officials notice environmental considerations and take them into account. Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.1983). To accomplish this purpose, NEPA requires that federal agencies prepare an Environmental Impact Statement on any proposed major federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). An Environmental Impact Statement is a “detailed statement” examining in depth the environmental impact of the proposed action and alternatives to the proposed action. Id. NEPA also created the Council on Environmental Quality (the “Council”) and authorized the Council to establish regulations setting forth environmental review procedures to be followed by federal agencies. See 42 U.S.C. §§ 4342 and 4344 (1988). Pursuant to its authority, the Council has promulgated detailed regulations setting forth when a federal agency must prepare a full Environmental Impact Statement or the less extensive Environmental Assessment and what must be included in each. See 40 C.F.R. §§ 1501.3, 1501.4, 1502.1-.25, 1508.9, 1508.11, and 1508.13 (1991). To implement the Council’s NEPA regulations, the Postal Service adopted regulations, Postal Service Environmental Procedures, 39 C.F.R. § 775 (1990), which establish the Postal Service procedures for complying with NEPA. These procedures are consistent with the requirements set forth in the Council’s NEPA regulations. Under the Postal Service environmental review procedures, an Environmental Assessment must be prepared for the construction of any new facility involving more than 30,000 net interior square feet. 39 C.F.R. § 775.4. The Environmental Assessment must be prepared once the contending sites are identified and the completed Environmental Assessment must be used in the selection of the final site. 39 C.F.R. § 775.6(b)(1). It must contain: (1) a summary of major considerations and conclusions; (2) a description of the proposed action; and (3) for each reasonable alternative, a description of the affected environment, the environmental consequences, the mitigation measures, if any, and a comparison to all alternatives considered. 39 C.F.R. § 775.7(a). If the Postal Service determines, based on the Environmental Assessment, that the proposed action has no significant impact on the human environment, an Environmental Impact Statement need not be prepared. Instead, the Service prepares and publishes a “Finding of No Significant Impact” (FONSI). The FONSI must briefly present reasons why an action will not have significant impact on the human environment and state that an Environmental Impact Statement will not be prepared. 39 C.F.R. § 775.6(a)(2). B. The Standard of Review. Waltham claims that the Postal Service FONSI and the Environmental Assessment upon which it is based violated NEPA because they failed substantively to address, identify, and mitigate the environmental impacts of the proposed project and because, in carrying out the Environmental Assessment and issuing the FONSI, the Postal Service did not follow required procedures. Both Waltham and the Postal Service seek summary judgment on these claims. In reviewing agency decisions not to prepare an Environmental Impact Statement, the First Circuit has described the appropriate standard of judicial review as follows: We have previously said that one challenging a decision not to prepare an [Environmental Impact Statement] must show a “substantial possibility that agency action ‘could significantly affect the quality of the human environment.’ ” Quinonez-Lopez v. Coco Lagoon Development Corp., 733 F.2d 1, 2 (1st Cir.1984)____ If the record reveals such a “substantial possibility” with sufficient clarity, the agency’s decision (not to produce an [Environmental Impact Statement] ) violates NEPA. Depending upon the agency’s reasons, a reviewing court might say that such an agency made a mistake interpreting NEPA or the [Council’s] regulations, or the court might say that the agency’s “no signficant impact” finding was simply “arbitrary, capricious, an abuse of discretion,” 5 U.S.C. § 706(2)(A). Often these questions cannot be easily separated from one another. But whatever verbal formulation it applies, the court in a case like this must essentially look to see if the agency decision, in the context of the record, is too “unreasonable” (given its statutory and factual context) for the law to permit it to stand. Sierra Club v. Marsh, 769 F.2d 868, 870 (1st Cir.1985). “Thus it is clear that the reviewing court’s function is not to second-guess the choices made by government officials, but rather to assess their process of arriving at those choices.” Town of Norfolk v. United, States EPA, 761 F.Supp. 867, 873 (D.Mass.1991) (Mazzone, J.). In essence, the First Circuit sees two aspects to a court’s review of agency decisions under NEPA. First, the reviewing court must conduct a substantive review of the agency’s action under section 706 of the Administrative Procedure Act to ensure that the decision was not arbitrary and capricious. Second, the court must review whether the agency has complied with the duties, or procedural requirements, which NEPA places upon it. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980); Town of Norfolk, 761 F.Supp. at 873. With respect to the content of the first prong of this review, the Supreme Court has made clear that, in conducting an “arbitrary and capricious” review of agency decisionmaking under section 706(2)(A) of the Administrative Procedure Act, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). Applying this principle to its review of an agency’s Environmental Impact Statement, the First Circuit has stated, “[tjhis [administrative] record contains the more detailed studies and background of deliberation which form the basis of the final [Environmental Impact Statement]. We think that the law requires production of the entire administrative record.” Silva v. Lynn, 482 F.2d 1282, 1283 (1st Cir.1973) (citations omitted). In the summary judgment context, the Court must determine whether “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In a NEPA case, the Court should grant summary judgment for the defendant agency unless the Court’s review of the record reveals that the plaintiff has discovered therein a genuine issue of material fact as to whether the agency’s decision was arbitrary and capricious or otherwise an abuse of discretion. Town of Norfolk, 761 F.Supp. at 873-74 (citing Concerned Citizens on 1-190 v. Secretary of Transp., 641 F.2d 1, 7 [1st Cir.1981]). The Court notes that the submissions of the parties make so many fundamentally contradicting factual claims “that one is tempted to think some ‘material’ factual issue must be in dispute____” Valley Citizens for a Safe Env’t v. Aldridge, 886 F.2d 458, 461 (1st Cir.1989). The Court must determine, however, whether there are any such disputes of material fact which have a basis in the administrative record. See Id.; see also Town of Norfolk, 761 F.Supp. at 874. C. The Administrative Record. Before the Court can review the substantive and procedural adequacy of the disputed FONSI, it must establish what constitutes the record upon which it will make its review. Waltham and the Postal Service disagree as to what should be included in the record. The Postal Service states that the administrative record consists of thirty-seven documents listed in the Affidavit of Kenneth Perrin, the General Manager of the Postal Service Real Estate Division in the Northeast Region. Opposition of the Postal Service to Plaintiffs Motion for Summary Judgment at 3. Waltham has filed a motion in limine to strike the Amended Assessment from the record. Waltham also contends that the administrative record should include the so-called Berger Environmental Assessment, an environmental assessment prepared in November 1988 for the GSA site, a site in Waltham which was considered by the Postal Service in 1988. The Postal Service contends that the Amended Assessment should be considered part of the record, but that the Berger Environmental Assessment should not. The Postal Service further argues that the affidavits Waltham submitted with its cross-motion for summary judgment are “extra-record” affidavits and should not be reviewed by the Court. Finally, Waltham requests that the Postal Service be compelled to produce “over two filing cabinets full” of additional materials allegedly compiled by it during its site selection process. Before addressing the specific issues, the Court will summarize the relevant law concerning what constitutes the administrative record and when a court may consider additional extra-record information. As a general rule, the reviewing court should define the administrative record as the record that was before the agency at the time it made the decision in issue. See Camp, 411 U.S. 138, 93 S.Ct. 1241; Aldridge, 886 F.2d at 460. This record “consists of all documents and materials directly or indirectly considered by agency decision-makers[.]” Towns of Norfolk and Walpole v. United States Army Corps of Eng’rs, 137 F.R.D. 183, 185 (D.Mass.1991) (quoting National Wildlife Fed’n v. Bur- ford, 677 F.Supp. 1445, 1457 [D.Mont.1985]). There are a number of exceptions to the general rule. In certain situations a reviewing court should review additional evidence which is not part of the administrative record. For example, “the court is justified in looking past the administrative record when bad faith is claimed.” Id. at 188 (citation omitted). In addition, in reviewing an agency decision under NEPA, a court may consider evidence “tending to show significant impacts or realistic alternatives that the responsible officials ignored.” Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 72 (D.C.Cir.1987) (citation omitted). Accord Conservation Law Found. v. Clark, 590 F.Supp. 1467, 1474-75 (D.Mass.1984). Judge Mazzone has summarized some other such exceptions: These situations include ... when new information that confirms or contradicts agency predictions becomes available, when the evidence indicates that the agency relied on secret sources unavailable for public scrutiny, or when the plaintiff presents previously available evidence that the agency should have considered but did not. Town of Norfolk, 761 F.Supp. at 874 (citations omitted). 1. The Amended Assessment. Waltham contends that the Amended Assessment, prepared seven months after the Postal Service FONSI and a month after the commencement of this litigation is legally inadmissible as part of the administrative record. Waltham’s Memorandum in Support of Its Motion for Summary Judgment at 10-11. It presents two arguments to support this contention. First, Waltham argues that the Amended Assessment was never circulated for public comment and therefore does not meet NEPA’s requirements of full public disclosure. Waltham cites two First Circuit cases as support for this principle, Massachusetts v. Watt, 716 F.2d at 951, and Grazing Fields Farm, 626 F.2d at 1073. Both of these cases, however, are distinguishable from this case. In both, the issue was whether uncirculated studies could legally support a previously issued Environmental Impact Statement. Under NEPA and the Postal Service’s own regulations, the public disclosure requirements are far greater for an Environmental Impact Statement than for an Environmental Assessment. The former must be circulated for public comment for a minimum of thirty days before the agency may make a decision based upon it. 39 C.F.R. § 775.9. Likewise, any supplement to an Environmental Impact Statement must undergo the same comment period before the agency can make a decision based on the supplement. 39 C.F.R. § 775.8(f). In contrast, while the Postal Service is required to make public an Environmental Assessment, it is not required to observe any comment period prior to issuing a FONSI based on any such assessment, nor is there any mandatory comment period for the FONSI during which the Service must refrain from taking further action. See 39 C.F.R. §§ 775.6(a)(2), 775.7, and 775.10. Thus the fact that the Amended Assessment has not been submitted to a process of public comment is not sufficient reason to exclude it from the administrative record. Waltham’s second reason for excluding the Amended Assessment from the administrative record is much stronger. Waltham argues that the record must be limited to those documents that the Postal Service had in front of it at the time the decision (the FONSI) was made and which were considered in the decisionmaking. It argues that the Amended Assessment, as a post hoc justification of the FONSI, should be excluded from the record. Waltham cites Judge Mazzone’s holding in Towns of Norfolk and Walpole v. Army that “the administrative record ‘is that which was before the agency at the time the decision being reviewed was made, and it consists of all documents and materials directly or indirectly considered by agency decision-makers[.]’ ” Towns of Norfolk and Walpole, 137 F.R.D. at 185 (quoting National Wildlife Fed’n v. Burford, 677 F.Supp. at 1457. The Postal Service offers two arguments for why the Amended Assessment should be considered by the Court as part of the record. Memorandum in Opposition to Waltham’s Motion for Summary Judgment at 11. First, the Postal Service states that the Amended Assessment should not be excluded as a “post hoc rationalization” because the Postal Service had no duty to complete its environmental assessment pri- or to beginning construction. Instead, the Postal Service contends that the Amended Assessment should be seen “as part of an on-going environmental analysis during the design phase and prior to the beginning of the project.” Id. Second, the Postal Service states that to exclude the Amended Assessment from the administrative record would discourage precisely the sort of agency responsiveness to the public’s environmental concerns which NEPA seeks to encourage. Some fairly broad policy implications arise should this Court include the Amended Assessment in the record. Would such a decision encourage an agency to do shoddy environmental assessments to justify a dubious FONSI since the agency knows it can always prepare an amended assessment if the public takes it to court? On the other hand, would excluding the Amended Assessment from the record serve to discourage agencies from continuing to engage in give-and-take dialogue with the community after releasing a FON-SI or after litigation is commenced? Given the arguably post hoc quality of the Amended Assessment, issued after the FONSI was initially made and after Waltham filed suit, the Court ought adopt a more critical view of the Amended Assessment. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971) (holding that affidavits prepared for trial constitute “post hoc rationalizations” and should be viewed critically); see also, Louisiana v. Lee, 758 F.2d 1081, 1085 (5th Cir.1985) (quoting Overton Park and holding that a subsequently prepared Environmental Assessment was “to some extent ... a post hoc rationalization and thus must be viewed critically”); Citizen Advocates for Responsible Expansion, Inc. v. Dole, 770 F.2d 423, 434 (5th Cir.1985) (holding that studies and other evidence made or offered in support of the decision not to prepare an Environmental Impact Statement, but after that decision was made, must be viewed critically). This Court will follow the lead of the Fifth Circuit. That is, while the Amended Assessment will not be considered part of the administrative record, this Court, in the exercise of its discretion, will consider it, albeit critically, as a supplement to the administrative record, to evaluate better the record which led to the decision under review. To exclude the Amended Assessment altogether would be to apply an overly formalistic approach to the Environmental Assessment/FONSI process. Waltham challenges the Postal Service decision not to prepare an Environmental Impact Statement. That decision was first expressed in the September 1990 FONSI. The Amended Assessment is the functional equivalent of a supplemental FONSI. This Amended Assessment, prepared in response to design changes, to public criticisms, and probably to the commencement of this litigation, evaluated environmental impacts not previously addressed adequately and concluded that the earlier FONSI was still justified. Perhaps the Postal Service should formally have released another FONSI instead of simply concluding within the Amended Assessment that the FONSI was justified, but the publication requirement is no different for a FONSI than for an Environmental Assessment, and neither requires a public comment period. Therefore, in reviewing whether the Postal Service decision not to prepare an Environmental Impact Statement was arbitrary and capricious in violation of the Postal Reorganization Act and NEPA, the Court will evaluate the administrative record in light of the Amended Assessment. 2. The Berger Environmental Assessment. The Berger Environmental Assessment is an environmental assessment of the so-called GSA site in Waltham. It was prepared by Louis Berger & Associates, Inc. and presented to the Postal Service on November 11,1988. The Postal Service list of materials relied upon in its Environmental Assessment/FONSI process does not include the Berger Environmental Assessment. See Perrin Aff. Waltham contends that the Berger Environmental Assessment should be considered part of the administrative record because it involves the consideration of an alternative site for the new facility and was prepared as part of the overall process through which the Smith Street site was selected. Furthermore, Waltham notes that all three subsequent Environmental Assessments cite the Berger Environmental Assessment in their tables of “References and Communications”. Response/Opposition to Defendant’s Request for A Ruling to Limit the Scope of the Administrative Record and Exclude the Berger Environmental Assessment at 3. The Postal Service disagrees. It states that the GSA site was considered and abandoned before the Smith Street site was ever considered, and was abandoned solely because the GSA decided it would not sell the site. Furthermore, the Postal Service states that it did not consider the Berger Environmental Assessment in its Environmental Assessment/FONSI decisionmaking process regarding the Smith Street site. Submission of the Berger Report by the Defendant United States Postal Service at ¶¶ 2-6. The evidence before the Court indicates that the Postal Service considered the GSA site in 1988 and abandoned it as a possible site due to difficulties in negotiating its sale by the GSA which owned the property. See Updated Assessment, Pi’s. Ex. 1-A at 23. Thus it is clear that the Berger Environmental Assessment, dated November 1988, was prepared prior to the August 1989 convening of a site selection committee which identified three alternative sites, one of which was the Smith Street property and none of which was the GSA site. Nevertheless, there is no question that the Berger Environmental Assessment must be considered part of the administrative record if the Postal Service directly relied upon it in deciding upon the Smith Street site. The Postal Service contends it did not. The Court’s examination of the Berger Environmental Assessment and the subsequent Environmental Assessments reveals no evidence that the Berger Environmental Assessment was relied on directly in the selection of the Smith Street site. Most importantly, the Berger Environmental Assessment makes no mention of the Smith Street site or of the other two final alternative sites over which the Smith Street site was selected. Even if the Postal Service did not directly rely on the Berger Environmental Assessment, this document may be considered part of the administrative record if the Postal Service decisionmakers “indirectly” considered it. See Towns of Norfolk and Walpole, 137 F.R.D. at 185. This is not to suggest, however, that the record must contain all documents on which the Postal Service consultants relied in creating the documents on which the Postal Service itself relied. See Town of Norfolk, 761 F.Supp. at 876. The Court’s “objective should be to develop an administrative record which is self-sufficient for adequate judicial review.” Silva v. Lynn, 482 F.2d at 1284. It is true that the three subsequent Environmental Assessments prepared by Rizzo Associates refer to the Berger Environmental Assessment in their tables of “References and Communications.” Nevertheless, to hold solely on the basis of these references that the Postal Service Environmental Assessment/FONSI process with respect to these three sites “indirectly considered” the Berger Environmental Assessment would constitute far too broad a definition of that phrase. Inclusion of the Berger Environmental Assessment is not necessary for purposes of conducting an “adequate review” of the Postal Service decision to build at the Smith Street site. Therefore the Berger Environmental Assessment is not to be treated as part of the administrative record. 3. Waltham’s Summary Judgment Affidavits. The Postal Service argues that the affidavits submitted by Waltham with its motion for summary judgment are “extra-record” and therefore should not be considered by the Court. The Postal Service correctly notes that in applying the Administrative Procedure Act section 706(2)(A) standard of review, “the focal point [is] the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. at 142, 93 S.Ct. at 1244. This standard precludes the Court from substituting its judgment for that of the agency. See Citizens to Preserve Overton Park, 401 U.S. at 413-14, 91 S.Ct. at 822-23. The Postal Service contends that if the Court admits and reviews these affidavits, it will be violating this deferential standard by substituting its judgment for that of the agency. The Court does not agree. These affidavits certainly are not part of the administrative record. They were not presented until after the release of the Amended Assessment. Waltham, however, is “entitled to introduce evidence tending to show significant impacts or realistic alternatives that the responsible officials ignored____” Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 72 (D.C.Cir.1987) (citing Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 369 n. 56 [D.C.Cir.], cert. denied, 454 U.S. 1092, 102 S.Ct. 657, 70 L.Ed.2d 630 [1981] ). Most of these affidavits allege facts which purport to show that the Postal Service failed to consider certain aspects of the environmental impact at the Smith Street site or never adequately considered alternative sites. The Court will review the affidavits which meet this requirement, but will not consider those parts of affidavits which offer legal conclusions or present opposing scientific determinations regarding environmental concerns the Postal Service addressed in its Initial and Updated Environmental Assessments. 4. Waltham’s Request for Additional Discovery. Waltham also requests that the Court compel the Postal Service to produce “two filing cabinets full” of material compiled in the course of the Environmental Assessment/FONSI process. The Postal Service contends that it has produced all documents upon which its decisionmakers relied and that no other material should be considered part of the administrative record. In determining whether the Court should compel the production of the material in issue, the Court must keep in mind that the purpose of the administrative record is to assure that a reviewing court has an adequate basis for determining whether an agency’s decision is arbitrary and capricious. See Town of Norfolk, 761 F.Supp. at 874. The Postal Service has produced a list of thirty-seven documents which it contends comprise the administrative record. Perrin Aff. All of these documents are before the Court and review of this record indicates that it is more than sufficient to provide an adequate basis for determining whether the decision to site the new facility at the Smith Street property was arbitrary and capricious. See infra Part IV.D. Therefore the Court holds that Waltham has not established any genuine issue of material fact concerning whether the Court has the full administrative record before it. The motion to compel the Postal Service to produce additional documents is denied. D. The Substantive Adequacy of the FONSI. With the administrative record established, the Court turns to matters of substance. In assessing the substantive adequacy of an agency’s FONSI, the essential test in this Circuit is whether the plaintiff has shown the existence of a “substantial possibility that agency action ‘could significantly affect the quality of the human environment.’ ” Sierra Club v. Marsh, 769 F.2d at 870 (quoting Quinonez-Lopez v. Coco Lagoon Dev. Corp., 733 F.2d 1, 2 [1st Cir.1984]). If the Court finds that the record reveals “such a ‘substantial possibility’ with sufficient clarity, the agency’s decision (not to produce an [Environmental Impact Statement]) violates NEPA.” Id. This standard of review is “restrained, but not meaningless.” Silva, 482 F.2d at 1283 (applying the “arbitrary and capricious” standard to the review of an agency’s Environmental Impact Statement). To assess the substantive adequacy of the Postal Service FONSI, the Court will be guided by four factors highlighted by the D.C. Circuit: First, the agency must have accurately identified the relevant environmental concern. Second, once the agency has identified the problem it must have taken a “hard look” at the problem in preparing the [Environmental Assessment]. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an [Environmental Impact Statement] can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum. Coalition on Sensible Transp., Inc., 826 F.2d at 66-67 (citing Sierra Club v. Dep’t of Transp., 753 F.2d 120, 127 [D.C.Cir.1985]); see also, Maryland-National Capital Park and Planning Comm’n v. United States Postal Ser., 487 F.2d 1029, 1040 (D.C.Cir.1973) (court considers the same four factors in reviewing a FONSI by the Postal Service). Waltham’s pleadings allege that the FONSI and supporting Environmental Assessments inadequately consider a range of impacts, in particular impacts on traffic, noise, wetlands, stormwater management, land use, and City tax revenues. Lexington also contends that the Postal Service inadequately considered traffic impacts. The Court will examine these areas of contention. Then it will assess whether Waltham has succeeded in showing a “substantial possibility” that the Postal Service action “could significantly affect the human environment.” 1. Traffic Impacts. There is no dispute that the siting of the new facility at 200 Smith Street will result in more traffic on the surrounding roads. More specifically, there will be increased traffic on Smith Street, on Spring Street (the continuation of Smith Street in Lexington extending to Route 2), at the Trapelo Road—Smith Street intersection, and at the Trapelo Road—Route 128 interchange. The Updated Assessment presents traffic studies projecting the future traffic impact from the new facility and comparing it to the projected future traffic burden for these roads and intersections if the facility is not built. These data indicate that both intersections are presently overloaded and will become more so regardless of whether the new facility is built. More specifically, the Updated Assessment indicates that the intersections at issue will operate (and in many cases already are operating) at “LOS F” (the lowest level-of-service traffic quality rating possible under the guidelines established by the Transportation Research Board) even if the facility is not built. Furthermore, the traffic studies show that the new facility, without any mitigation measures, would increase 1995 traffic volumes at the worst intersection, the Trapelo Road—Smith Street intersection, by 2.6 percent and 1.6 percent in the peak morning and afternoon hours respectively. Def.’s Ex. D-1 at 215. Waltham does not dispute these findings. It makes three criticisms of the consideration by the Postal Service of these traffic issues. First, Waltham contends that even if these locations will run at LOS F without the facility being built, the new facility’s presence will still have an undeniably negative impact. Campbell Aff. Second, it argues that the traffic mitigation measures discussed in the Updated Assessment will not resolve the projected traffic problems on these roads and at these intersections. Third, Waltham correctly argues that promises to mitigate certain environmental impacts in the future can not support a finding that these impacts lack significance. See Sierra Club v. Marsh, 769 F.2d 868, 877 (1st Cir.1985). Few, if any, of the traffic mitigation measures addressed by the Updated Assessment constitute binding obligations on the part of the Postal Service. With respect to all three contentions, however, it should be noted that the Postal Service is not obligated to solve the already serious traffic problems at these locations, nor must the new facility have no traffic impact at all. The FONSI requires only that the facility have no significant impact on the human environment. Lexington also challenges the adequacy of the FONSI with respect to traffic impact, contending that none of the three Environmental Assessments takes a “hard look” at the impact of truck traffic through Lexington from the facility. Lexington’s Memorandum in Opposition to Postal Service’s Motion for Summary Judgment, at 3. Lexington is correct that the Environmental Assessments do not study this impact. Instead, they state that truck traffic through Lexington will be insignificant for two reasons. First, the Postal Service will prohibit its trucks and private “under contract” trucks from entering the facility from the north through Lexington and from using the north driveway on Smith Street to enter the site. Second, the south exit driveway will be designed and designated to permit only right turns (going south, away from Lexington). Pl.’s Ex. 1-A at 109. Lexington submits two affidavits by professionals knowledgeable about area traffic conditions and patterns. The affidavits allege that during periods of heavy traffic on Route 128, many vehicles use Spring Street and Smith Street to get to and from Route 2 and to bypass Route 128. The affidavits also allege that trucks will easily be able to enter the facility via Spring Street and Route 2. Corr Aff. ¶¶ 3, 4; Chalpin Aff. ¶¶ 5-10. It should be noted, however, that these affidavits in no way dispute the specific reasons given by the Environmental Assessment as to why the facility, as currently designed, will not increase truck traffic through Lexington. 2. Wetlands and Stormwater Impacts. The quality and quantity of stormwater flowing off the site is of concern because an unnamed brook at the southern border of the site flows into the Cambridge Reservoir. The Updated Assessment recognizes this potential environmental impact and deals with it in somewhat cursory fashion, concluding that “the project will be designed so that there will not be an increase in site runoff” and that “overall, the developed ... site will generate less stormwater-related pollution than under existing conditions.” Pl.’s Ex. 1-A at 13; see also id. at 55-73. The Amended Assessment, in contrast, presents an in-depth stormwater management plan, replete with calculations demonstrating in detail that this plan will decrease the quantity and improve .the quality of stormwater flowing off the site. See Def.’s Ex. D-l at 235 and Def.’s Ex. D-2. Waltham makes two criticisms of the stormwater analysis. First, it disputes the accuracy of the stormwater plan’s groundwater calculations. Daylor Aff. ¶¶ 12 and 13. With some trepidation, the Court rejects this point as a basis for considering the Updated Assessment inadequate, mindful that its role is not to rule on the merits of conflicting scientific data and conclusions. Second, Waltham claims the storm-water analysis in the Amended Assessment is inadequate because it fails to consider the detrimental impact that a reduced stormwater flow will have on the wetlands at the site. Daylor Aff. 111111 and 15. On this point, Waltham is entirely correct. The Updated Assessment does not consider the impact of decreased stormwater runoff available for on-site wetlands, since its focus is on the concern downstream with increased runoff. The Amended Assessment, in contrast, reveals that the stormwater management plan will be so effective as to reduce the stormwater runoff available for on-site wetlands. Where the agency has taken a hard look at the environmental issue, the Court will not invalidate an agency’s considered scientific determination. See, e.g., Sierra Club v. Dep’t of Transp., 753 F.2d 120, 129 (D.C.Cir.1985). Here the very detail of the Amended Assessment convincingly limns the relative inadequacies of the wetlands and stormwater impact reports found in the Initial and Updated Assessments. Specifically, the Amended Assessment reveals that, far from “a hard look” at downstream pollution from stormwater runoff, the Postal Service gave the matter a marginally adequate glance. Moreover, comparison of the Updated and Amended Assessments reveals that the conclusions of the first as to the quantity of stormwater runoff are wholly out of date, and the attempt in the second to manage such runoff wholly ignores the impact of such a decrease in available water for the on-site wetlands. 3. Noise Impacts. The record indicates that the Postal Service did a detailed study of the noise pollution impact likely to result from the new facility, largely from increased truck and car traffic on Smith Street. Def.’s Ex. D-l at 216-25. The study identified seven residential houses that might be affected by facility-generated noise and examined the likely noise impacts on them under three alternative design plans for Smith Street and the Smith Street—Trapelo Road intersection. It determined that six of these houses were likely to experience noise increases resulting in some sleep disruption under at least one of the three alternative roadway plans. The Updated Assessment proposed five mitigation measures which would prevent any sleep disruption. These are (1) paying for air conditioners for the affected homes, (2) altering the south driveway so that less gear shifting occurs near the entrance to Smith Street, (3) installing docking collars on each loading dock on the south side of the facility, (4) strictly enforcing Massachusetts DEP Regulation Section 7.11 which prohibits unnecessary operation of a motor vehicle’s engine while the vehicle is stopped for more than five minutes, and (5) installing a fence along the east side of the south access road to serve as a visual and noise barrier between that access road and Smith Street. Id. at 225. While Waltham does not dispute the Postal Service conclusion from its noise pollution analysis that the new facility will cause noise increases resulting in sleep disruption for no more than six residential houses, it is correct in arguing that nonbinding promises to mitigate significant impacts can not justify a FONSI. See Sierra Club v. Marsh, 769 F.2d at 877. All five mitigation measures are listed as “proposed” mitigation measures in both the Updated Assessment, Pl.’s Ex. 1-A at 162-63, and the Amended Assessment, Def.’s Ex. D-l at 225. In addition, the Postal Service stated explicitly in a December 5, 1990 letter from Robert Coven to W. Douglas Gardiner that it was committing itself to installing the fence along the south access road. See Def.’s Ex. D-1 at 265-66. Arguably none of these representations create a binding commitment on the part of the Postal Service to undertake these measures. The Court need not determine, however, whether the Postal Service representations regarding proposed mitigation measures constitute binding commitments because, as explained infra at Part IV.D.5., the Court rules that these noise impacts are not legally significant. 4. Land Use and Tax Impacts. Waltham contends that the Postal Service has not considered adequately either the project’s impact on Waltham tax revenues or its lack of conformity with the zoning of the Smith Street site and abutting lands. In reviewing these claims, the Court notes at the outset that the Postal Service, a tax exempt entity, is not obligated to do any more than consider this impact. Nor is it obligated to comply with local zoning ordinances. Furthermore, it is generally recognized that harmful tax consequences and conflicts with local zoning laws, other than those imposed to protect the environment, are not sufficient bases for requiring a federal agency to prepare an Environmental Impact Statement. Where a proposed action has other impacts on the physical environment, however, these “cultural” impacts may be considered in determining whether an Environmental Impact Statement is required. Village of Palatine v. United States Postal Serv., 742 F.Supp. 1377, 1388-89 (N.D.Ill.1990); see also, Metropolitan Edison v. People Against Nuclear Energy, 460 U.S. 766, 772, 103 S.Ct. 1556, 1560, 75 L.Ed.2d 534 (1983) (holding that as a threshold matter, NEPA is concerned with actions that cause a primary impact on the physical environment). With respect to tax impact, Waltham and the Postal Service, in its Updated Assessment, agree that the purchase of the Smith Street site by the Postal Service will deprive Waltham of $560,000 in annual property tax revenues. The Postal Service has not offered to make any payments in lieu of taxes, but it has offered to provide Waltham with $1,600,000 for roadway improvements at the Trapelo Road—Smith Street intersection. PL’s Ex. 1-A at 76. With respect to land use impact, Postal Service environmental assessments mischaracterize the zoning classifications of the Smith Street site, thereby obscuring the degree to which the facility will conflict with local zoning law. The Updated Assessment describes the site as located in a “limited commercial” zone and states that the facility would be classified as a “municipal building” under the Waltham zoning ordinance. It also states that the facility’s use of the site for mail processing and distribution resembles the most recent occupant’s (Bull, Inc.) use of the site for office space and distribution. PL’s Ex. 1-A at 77-78. In fact, the zoning applicable to the Smith Street site is residential. Furthermore, under the Waltham zoning ordinance, the proposed facility would be classified as a “trucking terminal” which is an impermissible use for the site. Cervone Supplemental Aff. ¶!¶ 15 and 16. 5. Conclusion of the Court’s Substantive Review: the FONSI is not Arbitrary and Capricious. The Court has reviewed the record and Waltham’s extra-record evidence regarding the disputed areas of impact in light of the four factors highlighted in Coalition on Sensible Transp., Inc., 826 F.2d at 66-67. First, the Postal Service, through its Updated Assessment, has at least identified all of the environmental concerns raised by Waltham and Lexington, including wetlands, traffic, noise, and stormwater impacts. Second, the record establishes that the Postal Service took a hard look at most of the identified environmental concerns and recognized the impact of truck traffic on Lexington, noted but misconceived the compatibility of the project to existing zoning laws, had only glanced at the effect of downstream pollution at the time of decision (but now seems to be grappling in an intellectually honest fashion with that issue), and continues to ignore the effect on the wetlands of some decrease in stormwater runoff. Third, the Postal Service has made out a convincing case before this Court in support of its Finding of No Significant Impact. The Court briefly summarizes the Postal Service case as to each environmental impact. (i) With respect to traffic impact, it is undisputed that the relevant roads and intersections will continue to be overloaded even without the construction of the new facility. This is not to say that the new facility will not increase the traffic burden on surrounding roadways. The Postal Service traffic study concludes that in 1995 the worst of the neighboring intersections, the Trapelo Road—Smith Street intersection, will experience 2.6 and 1.6 percent increases in traffic volumes at the morning and evening rush hours respectively, as a result of the new facility. While the Postal Service traffic study does not consider the potential for increased truck traffic through Lexington, the Postal Service contends, and Lexington does not refute, that such truck traffic will not be significant because of the planned design changes and traffic regulations regarding the two access roads from the site. (ii) With respect to stormwater impact, the Postal Service claims and purports to prove that its stormwater management plan will reduce the quantity and improve the quality of runoff as compared to the runoff currently emanating from the site. The record also indicates that there will be no construction in or filling of wetlands or floodplains on the site. The Court recognizes, however, that the Postal Service neglects to consider the effect of decreased runoff on the wetlands located on the site but concludes that Waltham has failed to show that such neglect creates a substantial possibility that the new facility could significantly affect the quality of the human environment. Sierra Club v. Marsh, 769 F.2d at 870. (iii) With respect to noise impact, the record indicates that, without mitigation measures, the facility will cause sufficient traffic increases to generate some sleep-disrupting noise pollution effects on no more than six residential homes located near the site. The Postal Service has proposed mitigation measures which, if implemented, would “reduce the impact to a minimum.” Coalition on Sensible Transp., Inc., 826 F.2d at 67. Nevertheless, the Court notes that most, if not all, of the Postal Service promises to implement noise mitigation measures may not constitute legally binding commitments. (iv) With respect to tax impact, it is undisputed that the use of the site for the Postal Service facility will deprive Waltham of $560,000 annually in tax revenue. With respect to land use, the Court recognizes that, taking Waltham’s factual allegations to be true, the facility will conflict with the local zoning ordinance. The Court notes, however, that zoning and tax impacts, on their own, can not constitute significant environmental impact requiring the preparation of an Environmental Impact Statement. Metropolitan Edison, 460 U.S. at 772-73, 103 S.Ct. at 1560-61. Having examined and summarized the adverse impacts alleged by Waltham and Lexington with respect to traffic, wetlands, stormwater, noise, land use, tax revenue, and zoning, the Court rules that the Service has here made a convincing case for its findings that none of these impacts, taken individually, constitutes a significant environmental impact. More importantly, based on the Court’s examination of these impacts taken as a whole, the Court concludes that the Postal Service has made a convincing case for finding that the new facility will cause no significant environmental impact. Thus the Court concludes that Waltham and Lexington have not shown the Court that there is a substantial possibility that the facility will affect the quality of the human environment. Therefore, the Court holds that the Postal Service FONSI is substantively adequate and is not arbitrary and capricious. See, e.g., Sierra Club v. Marsh, 769 F.2d at 876-77 (refusing to conclude that an agency’s FONSI was arbitrary and capricious where the proposed action had varying degrees of adverse effect on clam flats, lobster, scallops, waterfowl, seals, 40 acres of woodland, toxicity of water in harbor, and tidal flow); Conservation Law Found. v. United States Air Force, No. 87-1871, 1987 WL 46370, 1987 U.S.Dist. Lexis 15149 (D.Mass. Nov. 23, 1987) (holding that a FONSI for the construction of Air Force defense towers was not arbitrary and capricious where the only impacts were adverse aesthetic effects and danger to bald eagles). One may well question how this Court can conclude that the four-part Coalition test has been met here, where something less than a “hard look” has been given to certain environmental considerations and no look at all has been given to the matter of decreased stormwater runoff. True, the issue is a close one, but the setting in which this ruling must be made is significant. Moreover, as the D.C. Circuit makes clear, the four-part Coalition test is not to be applied in an overly mechanistic fashion; some latitude must be given to the Postal Service. The NEPA process involves an almost endless series of judgment calls. Here we consider ones relating to the detail in which specific items should be discussed and the agencies’ treatment of the project’s relation to other government activities. It is of course always possible to explore a subject more deeply and to discuss it more thoroughly. The line-drawing decisions necessitated by this fact of life are vested in the agencies, not the courts. The latter’s “role ... is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). Coalition, 826 F.2d at 66 (omission in original). The Court here holds that the Postal Service gave adequate consideration to the requisite environmental concerns, nothing more. E. The Procedural Adequacy of the EAs and the FONSI. Waltham’s Counts I and II also claim that as matter of law the Postal Service Environmental Assessment/FONSI process was so procedurally tainted and improperly influenced that it should be struck down under the Postal Reorganization Act and NEPA. Generally, Waltham alleges that, in violation of the Postal Service’s own Environmental Procedures (“Part 775 environmental regulations”), 39 C.F.R. § 775, and Protection of Wetlands Procedures (“Part 776, wetlands regulations”), 39 C.F.R. § 776, the Postal Service, at least in part motivated by political concerns, first decided on the Smith Street site and then conducted an incomplete and flawed environmental review process to justify this selection. More specifically, the procedural inadequacies and improper influences which Waltham alleges in Paragraphs 6-37 of the Complaint are that the Postal Service: (1) pre-selected the Smith Street site without ever completing a mandatory wetlands study and a mandatory “no practicable alternatives” wetlands analysis; (2) pre-selected the Smith Street site before completing its environmental review; (3) failed