0001
 1                 IN THE UNITED STATES DISTRICT COURT
                   FOR THE MIDDLE DISTRICT OF GEORGIA
 2                           MACON DIVISION
 3
 4   CAUTION MACON, INC., ET AL,   )
                                   )
 5                  Plaintiffs,    )  5:99-CV-383-2 (DF)
                                   )  JANUARY 7, 2000
 6             vs.                 )  MACON, GEORGIA
                                   )  BEFORE THE HONORABLE
 7   CITY OF MACON, GEORGIA, ET AL,)  DUROSS FITZPATRICK
                                   )
 8                  Defendants.    )
     ______________________________)
 9
10
11                    PRELIMINARY INJUNCTION HEARING
                                 VOLUME III
12
13   APPEARANCES:
14   FOR THE PLAINTIFF:
15             RICHARD N. HUBERT, ESQUIRE
               CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN
16             NINTH FLOOR
               191 PEACHTREE STREET, N.E.
17             ATLANTA, GEORGIA 30303
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     FOR THE DEFENDANT FEDERAL HIGHWAY ADMINISTRATION:
19
               JAMES C. THOMASON, ESQUIRE
20             61 FORSYTH STREET, S.W.
               SUITE 17T26
21             ATLANTA, GEORGIA 30303
22             H. RANDOLPH ADERHOLD, ESQUIRE
               U.S. ATTORNEY'S OFFICE
23             MIDDLE JUDICIAL DISTRICT.
               P. O. BOX U
24             MACON, GEORGIA 31202
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0002
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     FOR THE DEFENDANT GEORGIA DEPARTMENT OF TRANSPORTATION:
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               CATHY COX-BRAKEFIELD, ESQUIRE
 5             STATE OF GEORGIA DEPARTMENT OF LAW
               40 CAPITOL SQUARE, S.W.
 6             ATLANTA, GEORGIA 30334-1300
 7             JOHN DRAUGHON, ESQUIRE
               SELL & MELTON.
 8             P. O. BOX 229
               MACON, GEORGIA 31202-0229
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     FOR THE DEFENDANTS CITY OF MACON AND BIBB COUNTY, GEORGIA:
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               O. HALE ALMAND, JR., ESQUIRE
11             ALMAND & WIGGINS
               P. O. BOX 1605
12             MACON GEORGIA 31202-1605
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0003
 1                         P-R-O-C-E-E-D-I-N-G-S
 2             THE COURT:  Are we ready to resume?
 3             MR. THOMASON:  Secretary is ready, may it please the
 4   court.
 5
 6                            FAYE DIMASSIMO,
 7   having been first duly sworn, was examined and testified as
 8   follows:
 9                          DIRECT EXAMINATION
10   BY MR. THOMASON:
11   Q.   State your name, please and by whom are you employed?
12   A.   Faye Dimassimo, and I am with the Federal Highway
13   Administration.
14   Q.   Ms. Dimassimo, would you tell us, please, your educational
15   background?
16   A.   I have an undergraduate degree in public administration,
17   Masters in Public Administration and a Masters in Community
18   Planning.
19   Q.   Would you tell the court, please, your work experience
20   beginning with the most distant position.
21   A.   I have been an urban transportation planner with Regional
22   Planning Commission, Director of Transportation Planning with
23   the Regional Planning Commission; worked as city planner, worked
24   for the Federal Highway Administration now for almost nine years
25   of an 18-year career.
0004
 1   Q.   Let me ask you specifically; from October 1983 to June
 2   1985, were you the Urban Transportation Planner for Lee County
 3   area, Councils for Government in Lee County, Alabama?
 4   A.   Yes, I was.
 5   Q.   What was your responsibility and role there, please?
 6   A.   I ran the MPO, Metropolitan Planning Organization, their
 7   transportation planning program.
 8   Q.   From July 1985 to May 1987, were you the planner for the
 9   City of Auburn, Alabama?
10   A.   Yes, I was.
11   Q.   What were your responsibilities there?
12   A.   A variety of responsibilities from transportation planning
13   to freight (sic) proposals, housing rehabilitation, community
14   development.
15   Q.   From January 1991 to July 1991, were the executive director
16   of the Lee-Russell Councils of Government?
17   A.   Yes, I was.
18   Q.   What were your responsibilities at the Lee-Russell Council
19   of Government?
20   A.   I had overall responsibility for the management of all of
21   the programs of the Lee-Russell Council of Government, including
22   those of the Metropolitan Planning Organizations and Transit
23   System.
24   Q.   Did you also serve as the director of the East Alabama
25   Solid Waste Disposal Authority?
0005
 1   A.   I did.
 2   Q.   From November, I'm sorry when did you first go with the
 3   federal highway?
 4   A.   November of 1991.
 5   Q.   From November of '91 to May of '93, were you the community
 6   planner and the Federal Highway Administration Division Office
 7   in Alabama?
 8   A.   I was.
 9   Q.   What was your role and responsibilities there?
10   A.   I was responsible for a variety of responsibilities under
11   the Metropolitan Planning Program, but I had metropolitan
12   planning, state-wide planning, air quality, and some
13   environmental responsibilities.
14   Q.   From May of '93 to August of '96, were you the Environment
15   and Planning Coordinator for the Alabama Division of Federal
16   Highway?
17   A.   I was.
18   Q.   And were the responsible person for the environmental
19   planning of highway projects in the State of Alabama?
20   A.   I was.
21   Q.   Thereafter, were you the transportation systems manager in
22   the Georgia Division of Federal Highway from August of '96 to
23   September of '97?
24   A.   I was.
25   Q.   And to the, from since September of '97 to the present,
0006
 1   have you been the Assistant Division Administrator?
 2   A.   Yes.
 3   Q.   Would you tell his honor, please, your responsibilities as
 4   Assistant Division Administrator?
 5   A.   I share responsibility with the division administrator for
 6   the overall management and coordination of the Federal Aid
 7   Highway Program here in Georgia.
 8   Q.   Ms. Dimassimo, can you tell the court what, in your duties
 9   now, what responsibilities you have for the environmental
10   aspects of the program?
11   A.   I, all of the staff who were responsible for the review of
12   environmental documentation and project development report to
13   me.
14   Q.   And the engineering design functions performed by our
15   agency?
16   A.   They all report to me.
17   Q.   And for construction right-of-way and administration of the
18   Federal Aid Program?
19   A.   They all report to me.
20   Q.   Were you involved at all in the environmental process
21   leading to the state's construction contract for Houston Road?
22   A.   I was.
23   Q.   Let me ask you, please, to tell his honor something about
24   the Federal Aid Highway Program.
25             MR. THOMASON:  If your Honor please, as a courtesy, we
0007
 1   have planned this to go from the general to the specific, from
 2   the structure of our organizations, their interrelationship,
 3   then to its application of our regs and laws to this project.
 4   So actually Ms. Dimassimo and I would like invite the court's
 5   questions at any time if it would be of assistance to you.
 6             THE COURT:  Thank you.  I may do that.
 7             MR. THOMASON:  Very good, sir.
 8   Q.   (BY MR. THOMASON)  Am I correct that Congress, in 1966,
 9   provided by legislation for a United States Department of
10   Transportation of which Federal Highway Administration was a
11   component mode?
12   A.   That is correct.
13   Q.   And let me ask you to refer to what's been marked as, for
14   identification, as Government's Exhibit 6, and if you would
15   identify it, please?
16   A.   This is the portion of the regulation that defines and
17   identifies the federal/state relationship.
18   Q.   And would you tell the court, please, how that relationship
19   is defined.
20   A.   This is a federally assisted state program.
21   Q.   And does the, did the Federal Highway Act and Congress
22   specifically preserve to the state its sovereign rights as a
23   state to plan, to originate, plan, prioritize and put forth
24   federal aid funding or approval, its highway program?
25             MR. HUBERT:  Excuse me, your Honor.
0008
 1             THE COURT:  You have an objection?
 2             MR. HUBERT:  Yes.  I object, your Honor, to the
 3   explanation of what the statute is.  The statute is, I believe,
 4   available to the court.  If it is not before the court, I have a
 5   copy of it here.
 6             THE COURT:  I have it.
 7             MR. HUBERT:  Counsel now seeks to ask this witness to
 8   expiate and explain what the statute, means, it says, that the
 9   statute itself would determine that.
10             THE COURT:  I have a copy of it here, and I take it
11   that he is just asking for, just to summarize it, just to make
12   it more understandable to the court.  I understand that the
13   statute has several sub-parts.  I doubt if it would go into all
14   of them.  But go ahead.
15   Q.   (BY MR. THOMASON)  Would you explain, please, the role and
16   responsibility of federal highway, the, make it clear here, the
17   Georgia Department of Transportation and the Federal Aid Highway
18   Program.
19   A.   The Federal Highway Administration, obviously administers
20   the way funding of the program and ensures the compliance of all
21   federal laws and regulations and administration of that
22   programs.  We do not infringe on the sovereign rights of the
23   states.  We don't select projects or anything like that.
24   Q.   In administering the Federal Aid Highway Program, is there
25   a body of law and regulations that governs our inquiry into
0009
 1   environmental consequences of highway projects?
 2   A.   There is.  That is the National Environmental Policy Act
 3   that we have heard referenced earlier.
 4   Q.   And would we find these regulations at 23 Code of Federal
 5   Regulations, Part 771?
 6   A.   Yes, sir.
 7   Q.   There was mentioned the other day, and you have, for the
 8   record, you have been the government's representative and
 9   present during all the testimony, have you not?
10   A.   I have.
11   Q.   You have heard reference to the Council on Environmental
12   Quality.
13   A.   Yes.
14   Q.   Are you familiar with the CQ?
15   A.   Yes, I am.
16   Q.   What is the CQs role and function within the federal
17   government?
18   A.   CQ --
19             MR. HUBERT:  Excuse me, your Honor.  I object to her
20   going into that unless there has been some foundation that she
21   is competent to testify about what the role of another
22   governmental agency is, or another council, which is under the
23   NEPA umbrella and, therefore, I suggest that she is not only
24   offering opinions as to legal matters here, set forth in the
25   statute, but also not competent to do that.  I would object to
0010
 1   her testimony on competency.
 2             THE COURT:  You want to reply?
 3             MR. THOMASON:  No, I wouldn't take the time to.  Thank
 4   you.
 5   Q.   (BY MR. THOMASON)  Let me ask you this:  What role, if any
 6   does CEQ have with the federal highway in the environmental
 7   scrutiny of state proposed highway projects?
 8   A.   The Council on Environmental Qualities' regulations, they
 9   have actually approved our own environmental regulations that
10   governs how we approve or give approval to the environmental
11   documentation for the advancement of Federal Aid Highway
12   Construction projects.
13   Q.   Within the federal highway environmental regs, Part 771,
14   are there classifications of, under NEPA, for environmental
15   documents to be prepared?
16   A.   There are.
17   Q.   Would you tell me, please, how many and what are they?
18   A.   Three, categorical exclusions, environmental assessments
19   and environmental impact statements.  Environmental assessments
20   may lead to an environmental impact statement or to a finding of
21   no significant impact, as has been the case with the Houston
22   Road Project.
23             THE COURT:  What was the first one?
24             THE WITNESS:  Categorical exclusions.
25             THE COURT:  What does that mean?
0011
 1             THE WITNESS:  These are typically very minor type
 2   projects, and they are actually defined in the regulation by
 3   what sorts of things they might be, that because of the very
 4   minor nature, if one could show that they meet the test that is
 5   given in the regulation for that type of a categorical
 6   exclusion, you simply document that it meets that and move on.
 7   Q.   (BY MR. THOMASON)  Can you -- well, let me -- are there,
 8   within the federal highway regulations, a body of regulations
 9   dealing with metropolitan state-wide planning?
10   A.   There are.
11   Q.   And where would we find those, please?
12   A.   23 CFR, little part 450.
13   Q.   And before you, marked for identification, is Government's
14   Exhibit 8.  Would you tell the court, please, what those are?
15   A.   These are the metropolitan and state-wide planning rules
16   that we are governed, U.S. DOT assisted activities.
17   Q.   And for what reason did the Secretary promulgate those
18   regulations?
19   A.   To ensure that the planning process, both in urbanized
20   areas, which are covered under the metropolitan planning rule,
21   and that state-wide planning process is followed in the
22   development of plans and programs for transportation
23   improvements.
24   Q.   Would you look, please, at the metropolitan planning
25   regulations themselves and tell the court how physically, or how
0012
 1   structurally the, our administration implements those
 2   regulations with regard to state and metropolitan planning
 3   regulations.
 4   A.   The Federal Highway Administration, again, acts in an
 5   oversite capacity in ensuring that the metropolitan planning
 6   regulations and rules are followed.  The, again, it is still a
 7   state administered program.  And each of the areas that is over
 8   50,000 in the State of Georgia, or any state, is considered an
 9   urbanized area and is eligible for certain federal aid
10   assistance, if in fact they have a program that meets these
11   regulations in place.
12   Q.   Is Macon, Bibb County required to have a metropolitan
13   planning organization?
14   A.   In order to receive federal aid assistance, yes.
15   Q.   That is one condition of eligibility?
16   A.   That is correct.
17   Q.   And that is our relationship with the Macon, Bibb County
18   Metropolitan Planning Organization?
19   A.   That is correct.
20   Q.   Tell me, please, within the metropolitan planning
21   organization, what factors or what elements must they consider
22   in order to develop their planning of highway projects for
23   preserving eligibility for federal aid funding?
24   A.   Well, there are a number of factors, and they are defined
25   in the regulation that they must consider.  But they range from
0013
 1   the environmental consequences, overall, considering those in
 2   their programs and projects to public involvement, to
 3   intermodellism, connectivity, those sorts of things.
 4   Q.   How does the metropolitan planning organization here in
 5   Macon, Bibb County, how is it that it gets the types of roads or
 6   bridge facilities, that sort of thing, how do they originate
 7   within the MPO?
 8   A.   They originate, they are at the local level.  And the
 9   metropolitan planning organization seeks public input on
10   projects.  They also have a technical side of this in addition
11   to the public involvement side, where input is requested as to
12   what the needs are in the community.  They also run traffic
13   demand models, which you have heard talked about a little
14   earlier, that point out deficiencies in the network in the event
15   improvements are not made based on future growth forecasts.
16   Q.   And you have heard testimony in court this week of
17   alternative road programs and Mr. Fischer and I believe Mr.
18   Hayes and others; is the MPO, is that the organization that,
19   locally that develops the transportation, long range
20   transportation plan from which come eligible projects and
21   federal aid funding?
22   A.   That is correct.
23   Q.   And the regulations, at 23 CFR, Section 450.208 are the
24   state-wide transportation planning process factors.  And for
25   your convenience, at Section 450.212 the regulation provides for
0014
 1   public involvement.
 2        Would you tell the court, please, the extent and scope of
 3   the public involvement that the federal regulations require of
 4   an MPO like Macon, Bibb County?
 5   A.   The transportation improvement program and the
 6   transportation plans as they are adopted subject to the process
 7   that has been developed and adopted by each MPO.
 8   Q.   And to your knowledge, has the CAUTION Macon, as a
 9   corporate body, does it have access to the Macon, Bibb County
10   MPO?
11   A.   It does.
12             MR. HUBERT:  Your Honor, I object to that, if it is a
13   document which is issued, indicates a certificate of compliance,
14   or if there is any other written information about that, that
15   would be the evidence that needs to be presented here.  Not this
16   witness' statement as to compliance.  It is conclusory.  It is
17   the ultimate fact and it is a violation of the best evidence
18   rule.
19             THE COURT:  Well, I am assuming he was just asking for
20   a question of whether CAUTION Macon had access to this MPO, and
21   she said it did.  Based on her qualifications, I think it is a
22   fair question.  Overruled.
23   Q.   (BY MR. THOMASON)  Does an individual citizen have access
24   to it?
25   A.   Yes.
0015
 1   Q.   Under the neighborhood group as a semi-corporate body?
 2   A.   Yes.
 3   Q.   Okay.  Would you tell me, please, what actions or controls,
 4   approvals or disapprovals federal highway has over the planning
 5   process for an MPO?
 6   A.   For MPOs that are over 200,000 population, the larger MPOs,
 7   we actually make a certification finding on those,
 8   periodically.  For MPOs such as this one that are under 200,000,
 9   they come under a state-wide planning funding certification.
10        We do not approve the transportation improvement program
11   nor do we approve their plan.  But we do approve the state-wide
12   transportation improvement program for which the local
13   transportation improvement program must be included in exactly
14   as it was adopted at the local level.
15   Q.   To propose a highway project for, let me ask you this way:
16        If the City of Macon, County of Bibb County, Georgia wants
17   to propose a project for federal aid funding, how would it go
18   about doing so?
19   A.   It would have to come through the metropolitan planning
20   organization or MPO's process.  Go through the public
21   involvement process and through the entire range of analysis and
22   scrutinies that is normally given there.  It would be proposed
23   in their transportation improvement program, and if it were
24   ultimately adopted into it, in their plan, it would be forwarded
25   to the state DOT for inclusion in the state-wide program.
0016
 1   Q.   Does federal highway have a veto power over any single
 2   project?
 3   A.   No.
 4   Q.   Approves the state planning or not?
 5   A.   Correct.
 6             THE COURT:  When you say federal highway, are you
 7   talking about the Federal Highway Administration?
 8             MR. THOMASON:  Yes, sir, I'm sorry.
 9             THE COURT:  All right.
10             MR. THOMASON:  So used to calling it -- shortening the
11   name.
12             THE COURT:  Of an area is over 250,000 people.
13             THE WITNESS:  Two hundred.
14             THE COURT:  Well, level one above 250, then you come
15   in and help them do an individual thing for that.
16             THE WITNESS:  No.  If they are over 200,000 population
17   then we make an individual certification action on those MPOs.
18   They are subject to a routine certification review.
19             THE COURT:  All right, they get individual attention.
20             THE WITNESS:  That is correct.
21             THE COURT:  If it is under 200 thousand, you approve a
22   state-wide plan and they have to comply completely with the
23   state-wide plan.
24             THE WITNESS:  Right.  Even now for those MPOs that are
25   over 200,000, all of their projects have to be included in that
0017
 1   state-wide transportation improvement program in order for us to
 2   authorize any federal aid funding for them.
 3             THE COURT:  Okay.
 4   Q.   (BY MR. THOMASON)  The funding sources for a local or
 5   county highway project can be from what source, please?
 6   A.   I'm sorry?
 7   Q.   Where are the sources of revenue for, say, planning and
 8   construction for a local or county or state-wide -- I mean state
 9   DOT highway project?
10   A.   It --
11             MR. HUBERT:  Your Honor, this asks for her to offer an
12   opinion as to what happens at the state level.  Again, I raise
13   the issue of and competency and would object to that unless
14   there is some foundation.
15             THE COURT:  Well, I think she has indicated that she
16   has a great deal of experience with this, in this field.
17             Now, I'm going to allow her to answer the question.
18   You can deal with it on cross.  Objection overruled.
19   Q.   (BY MR. THOMASON)  All right.  I was asking you from the
20   administration of our program, what are the sources of revenue
21   for construction or design or right-of-way and that sort of
22   thing?
23   A.   It could be local, state or federal aid or some combination
24   thereof.
25   Q.   The federal aid funding comes from where?
0018
 1   A.   Comes from Congress.
 2   Q.   From the highway bills it passes --
 3   A.   Highway bills.
 4   Q.   -- approximately every six years?
 5   A.   That is correct.
 6   Q.   They make annual appropriations and the DOT appropriation
 7   bill?
 8   A.   That is correct.
 9   Q.   If a project is eligible, based on the congressional
10   classifications, then, is it, am I correct that you administer
11   the program, if the state has, the state or county or city has a
12   project that meets that classification?
13   A.   That is correct.
14             MR. HUBERT:  Your Honor, I don't know how to deal with
15   this, except to say that, all these questions are leading.  And
16   I think those permitted, in large measure, to move us along with
17   the testimony.  But certain issues are critical issues, and I
18   fear we fall into the area where the notion of leading questions
19   can be asked about anything at any time.
20             THE COURT:  All right.
21             MR. HUBERT:  I object to the --
22             THE COURT:  I understand, Mr. Hubert.
23             Try to, Mr. Thomason, try to avoid any serious
24   leading.
25             MR. THOMASON:  I do, sir.  I'm sorry if I strayed.
0019
 1             THE COURT:  All right.
 2   Q.   (BY MR. THOMASON)  There has been testimony this week about
 3   the 1994 city/county tax referendum to raise revenue for certain
 4   local county highway projects.  What if any authority or control
 5   did federal highway have over such a revenue raising measure?
 6   A.   We have no authority or control.
 7   Q.   Let me ask you, please, the long range transportation plan
 8   developed by this MPO; does -- and the functional
 9   classifications of highways or streets; do they bear any
10   relationship to the other?
11   A.   Yes.
12   Q.   Would you tell me, please, how?
13   A.   The functional classification system indicates exactly what
14   it says.  How the particular highway that is a part of the
15   complete network of this area's transportation system, how it
16   functions, at what level.
17   Q.   Can you tell me, for example, what the functional
18   classification of Houston Road is?
19   A.   It is a principal arterial.
20   Q.   And what does that mean?
21   A.   An arterial is a road that simply doesn't carry local trips
22   but regional trips or through trips.  And in the particular case
23   of Houston Road, the reason the designation is a principal
24   arterial, is because of the commuter traffic that is experienced
25   on that route from Warner Robins coming to Macon.
0020
 1   Q.   As Houston Road came out of the local transportation plan,
 2   when does it first come, if ever, to Federal Highway
 3   Administration?
 4   A.   I'm sorry.
 5   Q.   When does, did Houston Road Project, how would it come to
 6   our attention?
 7   A.   The first time we would see it would be in the
 8   transportation improvement program or in the state-wide
 9   transportation improvement program.
10   Q.   Okay.  And has that been approved?
11   A.   Yes.
12   Q.   And then what is the next step by which the project is
13   advanced or the proposal?
14   A.   The next step would be some type of funding authorization
15   for, to complete the needed documentation or to acquire
16   right-of-way or to move forward to construction through the
17   process.
18   Q.   Are there conditions on federal eligibility that are, steps
19   within federal highways, regulations and the administration of
20   the program that must be met?
21   A.   Yes.  In order for a program to advance, first, it must
22   have been in the state-wide transportation improvement program,
23   in order to be considered eligible for funding.  Then at that
24   point one would expect it would move forward into preliminary
25   engineering to have an environmental document completed.  It
0021
 1   would move forward from that stage into perhaps some final
 2   designing, then the right-of-way and then to construction.
 3   Q.   When, if ever, does the Federal Highway Administration
 4   require compliance with NEPA?
 5   A.   For all federal aid projects we require compliance with
 6   NEPA prior to right-of-way acquisition activities being under
 7   taken.
 8   Q.   The state transportation plan or the local long range
 9   transportation plan, are either of those suggested to a NEPA
10   inquiry?
11   A.   No, they are specifically exempted from NEPA in the
12   regulations.
13   Q.   Based upon what?
14   A.   They do not result in any environmental consequences.
15             THE COURT:  Now, what is that, the two things you
16   mentioned, the what?
17             MR. THOMASON:  Let me ask her individually.
18   Q.   (BY MR. THOMASON)  Take, first, please, the local MPO long
19   range transportation plan.  What does it contain, what it is its
20   focus?
21   A.   It is a 20-year plan of transportation improvements, and
22   policies that can be both.  That are expected to address the
23   transportation needs for a particular area over a 20-year
24   period.  Because it does not actually have environmental
25   consequences, it is not subjected to any environmental
0022
 1   documentation or to the NEPA process.
 2   Q.   Can, does anybody perform, to your knowledge, and with your
 3   experience, does anybody perform environmental impact statement
 4   or any NEPA inquiry on something that is like a long range
 5   transportation plan?
 6   A.   No.
 7   Q.   Would the NEPA inquiry, would it, if you did it, would it
 8   yield you any, any decision maker, any material assistance?
 9   A.   No.  The reason it really would not --
10             MR. HUBERT:  Your Honor, that is objectionable.  That
11   is speculative on the part of this witness, and it seeks to
12   generalize testimony about what is done, not particularly to
13   this case, but into a universe of itself.  It is, it would be a
14   hearsay objection.  But certainly an objection on competency,
15   certainly an objection on relevancy and certainly an objection
16   on this witness laying any foundation for her to know what
17   someone may do under certain circumstances.
18             I find the testimony to be interesting as a classroom
19   subject, judge, but it does not inform us about this particular
20   project at all.
21             THE COURT:  You want to respond to that?
22             MR. THOMASON:  I will to that, sir, thank you.  I'm
23   surprised that he would argue that, after urging you to accept
24   the testimony of Mr. Fischer, Mr. Hayes and Professor Kulash.
25             MR. HUBERT:  Your Honor, that is not --
0023
 1             THE COURT:  Wait a minute, excuse me.  Mr. Hubert, let
 2   Mr. Thomason finish.  Go ahead.
 3             MR. THOMASON:  I quite honestly and quite candid think
 4   my line of questioning is well within the parameters Mr. Hubert
 5   asked you to set for him.  And it is in direct response to
 6   testimony that we have heard, in allegations raised in the
 7   complaint which I believe as a party we are entitled to refute.
 8             THE COURT:  All right.  Well, the ruling of the court
 9   is that this witness has demonstrated that she has a great deal
10   of experience and authority regarding the matters about which
11   she testified.  And I don't -- in any sense, think it is
12   hearsay.  I think it is legitimate questioning, and you can deal
13   with it on cross.  Objection overruled.
14   Q.   (BY MR. THOMASON)  Did you, do you remember my question?
15   A.   It was on whether or not you do an environmental impact
16   statement or other such environmental documentation on an entire
17   plan or program, and would that bear anything for you.  Would it
18   give you any insight.
19   Q.   Yes.
20   A.   And it would, really would not.  And the reason that it
21   would not, is because in the planning process, we are still
22   dealing with projects.  Even though they are identified as
23   projects, we are still dealing with them at the conceptual
24   level.
25        Within some general information, we know what type of
0024
 1   project we are proposing, say a two-lane verses four-lane, or
 2   interchange, those kinds of things.
 3        But nonetheless, the real environmental consequences to the
 4   corridor would be very difficult to define at the level that we
 5   define it in a planning document.  So it really wouldn't yield
 6   any information to you that would be consequential to the
 7   decision making.
 8   Q.   Thank you.  And would your answer be the same as to a
 9   state-wide transportation plan?
10   A.   Yes.
11   Q.   Let me ask you to return to the classifications of
12   environmental, our classifications of environmental inquiry
13   under our own Part 771 of 23 CFR.
14        When and in what type of projects, or could properly be
15   classified as an environmental assessment?
16   A.   Projects that we are, they don't fit under a categorical
17   exclusion.  They, we do not know or do not believe that they
18   will have, just based on a general knowledge of what the project
19   concept is and what we know about the corridor that they will
20   have significant environmental impacts.  We would undertake an
21   environmental assessment.
22   Q.   And do you know if an environmental assessment is defined
23   in the CEQ regs?
24   A.   I believe is.
25             MR. THOMASON:  Which, if your Honor please, would be
0025
 1   40 Federal Regulations Part 1500.
 2   Q.   (BY MR. THOMASON)  Can you tell the court if, for example,
 3   how the CQ regs would describe the length and scope of an EA?
 4   A.   If I recall correctly, it describes an environmental
 5   assessment, and that is reflected also in our technical advisory
 6   of being something of maybe 15 to 20 pages in length a very
 7   simplified process.
 8             MR. THOMASON:  For the the court's convenience, the
 9   regulation dealing within our regulations is the Section 771,
10   1.119.
11   Q.   (BY MR. THOMASON)  Who makes the decision to, of the
12   classification of a project for NEPA inquiry?
13   A.   The Federal Highway Administration.
14   Q.   When --
15   A.   We do in it cooperation with the state DOT.
16   Q.   When we first saw the Houston Road Project, tell us how the
17   classification for an environmental assessment was made,
18   please.
19   A.   At that point in time, when we first saw the project, I
20   think that it was unclear we knew that there was some historic
21   resources in that corridor.  We knew that there were, did not
22   believe that there would be significant environmental impacts in
23   the corridor, but just based on what we knew, determined that we
24   would do an environmental assessment to see what was there.  Did
25   not feel it fit under the category of a categorical exclusion
0026
 1   nor did we feel like there was anything significant in the
 2   corridor that couldn't be avoided or mitigated that would raise
 3   it to the level of an environmental impact statement.
 4   Q.   At the beginning inquiry of highway projects and
 5   environmental consequences; can you tell the court the scope and
 6   breath of the inquiry, the amount of work done and the
 7   responsibilities and roles and that sort of thing.  Is an
 8   environmental impact statement and environmental assessment
 9   similar, the same or substantially different?
10   A.   Initially, they are very much the same.  Because what you
11   are trying to do in either of those is to gather all the
12   information that is necessary to, for a determination of what
13   kinds of effects you are going to have.  So the level of study
14   and the type of things that you study are essentially one and
15   the same.
16   Q.   At what point, if ever, would they, would they part, the
17   commonality of scope and breath?
18   A.   They part on a couple of issues.  One is on the
19   alternatives analysis.  Our regulations, 23 CFR Part 771, do not
20   require but a build and a no-build for environmental
21   assessment.
22        For an EIS the full range of reasonable alternatives are to
23   be studied.  Obviously because one expects the environmental
24   consequences to be far greater.
25   Q.   Tell the court, please, about, there is a statement in the
0027
 1   EA, this EA, about need and purpose.  What is the point and
 2   purpose of a need and purpose statement?
 3   A.   It is to demonstrate why there is a need for the project
 4   and why, why it should move forward, why it needs to be
 5   advanced, what need is it going to meet.  And it allows you to
 6   balance off that expressed purpose and need against any
 7   environmental impacts that you are going to have, because we are
 8   always doing sort of a weighing process in the environmental
 9   documentation to ensure that what we are moving forward with is
10   justified in light of whatever environmental impacts it might
11   have.
12   Q.   Can you tell the court at what time the Federal Highway
13   Administration classified Houston Road as an environmental
14   assessment?
15   A.   Initially, when we first saw the project.
16   Q.   That was a decision of your agency?
17   A.   It was a decision of our agency.
18   Q.   Who prepared, who prepared the environmental assessment?
19   A.   The environmental assessments are either prepared by the
20   state DOT or by a contract of the state DOT, either through the
21   county or from a consultant.  State DOT can prepare them with
22   their own staff, contract them out to have them prepared or
23   contract with a county who may prepare them themselves or
24   contract with someone else to do it.
25   Q.   How is the number or scope of alternatives to the proposed
0028
 1   need and purpose, how is that derived?
 2   A.   It is derived just based on that, on what exactly is the
 3   need of the project, and the intended purpose of the project.
 4   And, again, depending on the level of environmental consequences
 5   that are anticipated.  For an EA, we are expected to study a
 6   build and no-build, and for anything with more serious, either
 7   documented or expected environmental consequences, a full range
 8   of alternatives.
 9   Q.   Would you describe, please, the range of alternatives that
10   were considered and ultimately determined to be reasonable on
11   the Houston Road Project?
12   A.   There was a build or no-build, or preferred and no-build,
13   and then two other alternatives that were studied and shifted to
14   either side of the preferred alternative.
15   Q.   What type or size of facility was suggested by the need and
16   purpose?
17   A.   A four-lane facility.
18   Q.   And would you describe, in common terms that we would
19   recognize, or examples, what type of facility would that be?
20   A.   In this case it is just a four-lane highway with a flush
21   median.  The reason that that particular type of project was
22   believed to meet the purpose and need of this project, was based
23   on the information that we were given, or that we analyzed on
24   two basic parts.  One was the safety information.  To have the
25   number of accidents, I believe it was 79, including one fatality
0029
 1   over a one-year period.  That is a significant number of
 2   accidents.
 3        There was also some analysis of the type of accidents that
 4   they were, whether they are rearend collisions or whatever,
 5   which would suggest to the engineer a different course of action
 6   based on turning movements and such as that that might be
 7   causing those kinds of accidents.
 8        In addition to that, the traffic information that was
 9   provided for the 20-year design year, clearly suggested, by our
10   design standards that a four-lane facility, multi-lane facility
11   would be wanted.
12             THE COURT:  You talk about 20-year period.
13             THE WITNESS:  Yes, sir.
14             THE COURT:  Tell me exactly what that means, as you
15   understand it.
16             THE WITNESS:  Okay.  When we run a traffic analysis
17   like that on a project, we will run a base year, which in this
18   case was the year 2000.  And then we will run a design year,
19   20-year, in other words, we are trying to make sure that in
20   order to be the most prudent with the public resources and in
21   order to meet the demand that may very well be present in that
22   corridor, over time, as it continues to grow and develop, that
23   we are meeting the needs.
24             THE COURT:  You saying that you decide, in this case
25   you decided that the design that was chosen would be the best
0030
 1   design based on the period from 2000 to 2020.
 2             THE WITNESS:  Based on the traffic that is expected
 3   and on the accident data that was given.
 4             THE COURT:  All right.  Based on what you know and
 5   what you expect and from studies and so forth.
 6             THE WITNESS:  That is correct.
 7             THE COURT:  And you would be surprised, I guess, based
 8   on what you said, that if during this 20-year period it proved
 9   inadequate.
10             THE WITNESS:  Yes, sir.
11             THE COURT:  But then after the 20-year period, then
12   you would, would you expect it to be --
13             THE WITNESS:  Continue to grow or be greater.  That
14   certainly is possible, and it all depends on a lot of factors we
15   don't control.
16             THE COURT:  You are willing to go 20 years but you
17   can't say beyond that.
18             THE WITNESS:  That is correct.
19             THE COURT:  Okay.
20   Q.   (BY MR. THOMASON)  But what is the origin of the 20-year?
21   A.   I beg your pardon?
22   Q.   What is the origin of the 20-year standard forecasting
23   period?
24   A.   It ties back with the length of time that we do long range
25   planning.  Which long range plans are 20-year plans.
0031
 1   Q.   Is it an exact science or predictive tool?
 2   A.   Predictive tool, and it can be impacted by many factors.
 3   Like I said, it all depends on if land use policies change or
 4   whatever that could cause more or less growth or whatever.
 5   Q.   Okay.  Among the alternatives suggested here this week on
 6   Houston Road, is it an existing two-lane, and proposing to build
 7   a four-lane facility with the median?
 8   A.   Right.
 9   Q.   Is there a three-lane alternative within a range of, tell
10   me -- I'm asking very awkwardly.  Is there a three-lane
11   alternative that was considered?
12   A.   No, not in the environmental document.
13   Q.   Tell me how, if at all, it was considered.
14             MR. HUBERT:  Your Honor, I believe it has been asked
15   and answered.  She said it wasn't considered.  Now he asked her
16   in leading question how it was considered.  I object to it as a
17   leading a question.
18             THE COURT:  That question is objectionable.
19             MR. THOMASON:  I asked her how, if at all, it was
20   considered --
21             THE COURT:  Well, she said it was not considered, so I
22   think you need to ask another question.
23             MR. THOMASON:  Okay.  I'm sorry.
24   Q.   (BY MR. THOMASON)  In coming up with the range of
25   alternatives described in the EA, what process does federal
0032
 1   highway and its, which, whether state or county, come up with
 2   the publicly announced alternatives?
 3   A.   Through the analysation process of the information that is
 4   given in the purpose and need for the transportation investment
 5   or solution that is being developed.
 6             THE COURT:  Let me ask you a question.  Is it, am I
 7   correct to assume that there are two alternatives here; one, is
 8   to build a five-lane road or, two, to do nothing?
 9             THE WITNESS:  That is correct.  Now, the alternatives
10   that, the other alternatives in the document are simply -- the
11   preferred alternative includes shifts along that alignment in
12   order to avoid historic resources.
13             THE COURT:  But basically, it would be for the 3.2
14   miles, by and large it would be a five-lane.
15             THE WITNESS:  That is correct.  Well, it would be four
16   lanes with a center turn lane.
17             THE COURT:  Center turn -- that is one of these
18   reversible lanes where you can, no matter which way you are
19   going, you can get over in that and hope nobody is going to hit
20   you head on because they don't see you.  People -- opposing
21   traffic can get into that lane, right?
22             THE WITNESS:  Yes.
23             THE COURT:  Yeah.  Okay.  Go ahead.
24   Q.   (BY MR. THOMASON)  Do you recall Mr. Kulash's testimony?
25   A.   I beg your pardon?
0033
 1   Q.   Do you recall --
 2             MR. HUBERT:  I object to that.  That is a general
 3   question.  That requires the witness to testify to everything he
 4   testified to.  And I think the question is not susceptible to
 5   answer.  I object to it on the grounds of relevancy.
 6             THE COURT:  We, I think the witness would be the one
 7   who would question whether or not she recalled all of his
 8   testimony or not.  Maybe you ought to be a little more specific.
 9             MR. THOMASON:  I asked, may it please the court, if
10   she recalled Mr. Kulash's testimony.  What I meant by that was
11   being present during the testimony.
12             THE WITNESS:  Yes, I was present during his testimony.
13   Q.   (BY MR. THOMASON)  Do you recall him suggesting that there
14   was an alternative of three-lane facility which he considered to
15   be worthy of further study?
16   A.   Yes, I do.
17   Q.   Would you tell the court your response to his suggestion
18   that such a facility would be worthy of further study?
19   A.   Obviously, there are always, there are always many other
20   alternatives that people can look at and suggest, and
21   differences of opinion about what may best be the transportation
22   need for a particular, or solution for a particular
23   transportation need.  And in this particular case, however,
24   given the number of accidents, very high accident rate in that
25   corridor, and given the projected traffic growth in that
0034
 1   corridor, it was our opinion, and that is our reason for, we
 2   would not have approved the environmental document otherwise,
 3   that that was in fact the best transportation solution in that
 4   corridor.
 5   Q.   Did anything in Mr. Kulash's testimony suggest to you the
 6   need for further inquiry into the range of alternatives of
 7   Houston Road?
 8   A.   It would not have influenced our decision, no.
 9   Q.   Would it influence your decision now such that you would
10   like to make further inquiry?
11   A.   No.
12   Q.   Do you recall Mr. Kulash suggesting a traffic demand model
13   which he considered to be state of the art?
14   A.   Yes.
15   Q.   Is that implemented by Federal Highway Administration or
16   the State of Georgia or the County of Bibb or the City of Macon?
17   A.   No.
18   Q.   Do you know it to, do you understand what it is, if at all?
19   A.   As I understand the concept that he described yesterday, he
20   was talking being a travel demand model that would somehow also
21   reflect the types of travel characteristics one could achieve
22   through building up of a collector system, I believe he called
23   it, or residential collector system, that would keep people from
24   traveling a main facility and allow them to get to the places
25   they were trying to go through this local collector street
0035
 1   network.
 2   Q.   What is your knowledge of the use of such a methodology?
 3   A.   I am not aware of anyone using that sort of methodology.
 4   It would be an off, what we would call an off model type
 5   technique, rather than the type of purely technical modeling
 6   process --
 7             MR. HUBERT:  Your Honor, excuse me.  I object to this
 8   testimony on the grounds that this witness has not been shown to
 9   be competent to offer testimony of a traffic engineer's, beyond
10   any expertise.  She has shown she has not been qualified as an
11   expert in any field whatsoever.
12             And as relates to that, she is now offering an opinion
13   as to whether or not what the state of the art would be or would
14   not be.  And whether a collector system could be done by a model
15   or not.  I think that is beyond this witness' knowledge and
16   information and purports to be expert testimony when she is not
17   qualified, and she is not competent to do so.
18             THE COURT:  Well, Mr. Hubert let me make a first
19   observation; that your objections are so long that it is hard
20   for me to remember exactly what the basis of the objection is by
21   the time it gets to a point where I can rule on it.  I will ask
22   briefly, do you want to respond to that?
23             MR. THOMASON:  No, thank you.
24             THE COURT:  Well, I think that although she is not a
25   traffic engineer, she is, from her prior testimony and the
0036
 1   qualifications and the positions that she holds and has held,
 2   seems to have great familiarity with building of highways.  So I
 3   think this falls within the ambient of her experience.
 4             And, Mr. Hubert, as you know, I set a pretty low
 5   standard for expert testimony.  Go ahead.
 6             MR. HUBERT:  May I say for the record, she has not
 7   been qualified as an expert, not submitted as an expert, and I
 8   was unaware --
 9             THE COURT:  I don't take this to be expert testimony
10   in a technical sense, but we need to move on.  We want to finish
11   this today, if possible.
12             MR. HUBERT:  Your Honor, I object to any testimony of
13   this witness purporting to be expert testimony.
14             THE COURT:  Overruled.
15   Q.   (BY MR. THOMASON)  Would you answer my question, please?
16   A.   I don't recall it, I'm sorry.
17   Q.   Well, perhaps none of us do.
18             THE COURT:  So maybe we can deal with this -- do you
19   wish to qualify her as an expert in any field?
20             MR. THOMASON:  She is, I have not.  Perhaps it would
21   be wise for me to do so.
22             THE COURT:  I think you might.
23             MR. HUBERT:  Your Honor, that is, I must say, that is
24   improper --
25             THE COURT:  Mr. Hubert, you just said that you
0037
 1   objected because she wasn't qualified as an expert.  And I
 2   thought about that for a few seconds and I said, maybe he is
 3   right.  So now he is going to offer her as an expert.  I'm --
 4             MR. HUBERT:  I think the court understands my concern
 5   about the court's suggestion to counsel that maybe his testimony
 6   might be received better if it were expert.  I made an
 7   objection.  I regard that as --
 8             THE COURT:  I ruled on the objection.
 9             MR. HUBERT:  -- assistance to the government in this
10   case, and the defendant --
11             THE COURT:  Pardon?
12             MR. HUBERT:  I regard that assistance to the
13   government in this case.
14             THE COURT:  Assistance by the court to the
15   government?
16             MR. HUBERT:  Yes, sir.
17             THE COURT:  You think I have assisted the government
18   any more than I have assisted the plaintiff?
19             MR. HUBERT:  I couldn't possibly say that, judge, on
20   this point.
21             THE COURT:  Well, it is not my intention to assist
22   anybody, but my intention to get all the necessary and relevant
23   facts concerning this matter.  And we, we went to great length
24   yesterday and the day before to get the, all the relevant
25   information, and it was very valuable testimony from the
0038
 1   plaintiff.  And now I want to try to understand the
 2   government's, defendant's point of view in this matter.  So --
 3             MR. HUBERT:  The court understands that I have a duty
 4   to make sure the record is clear, and I do take exception to it
 5   with all due respect.
 6             THE COURT:  As all lawyers, you have several duties
 7   Mr. Hubert, and that is one of the duties.  And another duty is
 8   to not to bog down the process, the proceedings.  So let's move
 9   on.  Unnecessarily, that is.
10             MR. THOMASON:  If your Honor please, I would tender
11   Ms. Dimassimo as an expert for the court on transportation
12   planning and the planning development and construction of
13   highway projects.
14             THE COURT:  I will let you voir dire if you would
15   like.
16             MR. HUBERT:  Your Honor, I will voir dire here at this
17   point.  I just briefly, if I may do it from here, since I --
18                         VOIR DIRE EXAMINATION
19   BY MR. HUBERT:
20   Q.   Ms. Dimassio, do you hold an advanced degree in traffic
21   engineering at all?
22   A.   No, I do not.
23   Q.   Have your degrees been in public administration; am I
24   correct on that?
25   A.   My masters is in community planning.
0039
 1   Q.   And community planning, but that is public administration?
 2   A.   No, sir, it is community planning.
 3   Q.   Is it a division of public administration?
 4   A.   No, sir, it is a separate masters degree in community
 5   planning.
 6   Q.   It is clear, is it not, that it is not engineering?
 7   A.   No, sir, it is planning.
 8   Q.   Now, when you say that you have an advanced degree in
 9   planning; can you tell me what area of planning your advanced
10   degree was in?
11   A.   In community planning.
12   Q.   And that indicates, it has nothing to do with highways in
13   the sense of pedestrian movement of people in an interstate
14   system or a federal system; is that correct?
15   A.   No, sir, that is not correct.
16   Q.   Would it have to do with community streets and roads and
17   local thoroughfares?
18   A.   No.  The term, community planning, is really used in the
19   very broadest sense, and it in fact is integrally related to the
20   interstate system, highway systems, as well as local community
21   road systems.
22   Q.   Yes.  I'm asking you about your particular training,
23   ma'am.  That is, did the course that you take -- where did you
24   take the course?
25   A.   Auburn University.
0040
 1   Q.   And at Auburn University did you have a course that was
 2   community planning that dealt with, in substantial part, the
 3   movement of people from one city or one locality to the other?
 4   A.   Yes.  I have had courses in that.  I have also had courses
 5   in environmental impact statements, environmental preparation of
 6   environmental impact statements, environmental assessments and
 7   the like.
 8   Q.   Well, before we leave the other, tell me the name of the
 9   course that you took that, that dealt with the transportation
10   aspect at Auburn University in community planning?
11   A.   It was a specific course on transportation planning, and I
12   don't, I will be honest with you, that has been a long time ago
13   and I don't recall the name of the course.
14   Q.   Well, you tell me, when you took your courses on the
15   environmental impact statement law, as, and the --
16   A.   You want to know what years?
17   Q.   Did they have categorical exclusions back then?
18   A.   Yes.
19   Q.   Did you take courses in what the difference was between a
20   categorical exclusion and a full --
21   A.   Yes, sir.
22   Q.   Did you do a paper, a thesis, for example?
23   A.   Yes, sir, I did.
24   Q.   What was the title of your thesis, please this?
25   A.   Mine was on solid waste.
0041
 1   Q.   Solid waste?
 2   A.   Yes.
 3   Q.   And so if you had any training in this area, it was not in
 4   a, in the very area where your paper or thesis was to be
 5   developed, namely, on solid waste.  That had nothing to do with
 6   the environmental impact statements in a transportation sense,
 7   did it?
 8   A.   Yes, sir.  The program I had at Auburn, so you will
 9   understand, it was a thesis program.  But one of the things,
10   because it was to be, it was like broad based community planning
11   program and was to expose you to all facets of community
12   planning, we had a terminal, rather than a thesis itself serving
13   as the final -- before you received your degree, we had an oral
14   exam that we had to complete.  And it had questions about all of
15   these topics on it.
16   Q.   You did not do a thesis, then?
17   A.   I did a thesis, yes.
18   Q.   Is it published?
19   A.   Published in --
20   Q.   Has it been published?
21             THE COURT:  Mr. Hubert, quite frankly, I'm not
22   particularly interested in what you are asking right now.  I
23   think that it is not very helpful.  Now if you have some more
24   solid questions about her credentials, I will be glad to listen
25   to them.
0042
 1             I must remind you that only yesterday I qualified Mr.
 2   Hayes, who is an architect, as an expert to give testimony far
 3   beyond what typically most architects that I have been
 4   experienced with, do.  But I think I did it because I think he
 5   was entitled to it, under the federal rules, and I would do it
 6   again.  But I am also going to make sure that this witness has
 7   the same --
 8             MR. HUBERT:  Your Honor, I am aware of the standard
 9   and I'm trying to establish a requisite in this case in the
10   event someone else has to look at it --
11             THE COURT:  You can't give another person a chance to
12   look at it until I have a look at it.
13             MR. HUBERT:  Exactly.
14             THE COURT:  All right.
15             MR. HUBERT:  I don't wish -- the court puts me in a
16   position where I'm restricted in this.
17             THE COURT:  Well, now, you want to debate this witness
18   on what was the title of her thesis in college.
19             MR. HUBERT:  Yes, sir, I do.  Because --
20             THE COURT:  I just, to me, that is not reasonable.  I
21   think you need --
22             MR. HUBERT:  I am sorry.
23             THE COURT:  You need to, you need to get on some more
24   solid ground other than what her thesis in college was on.  I
25   mean, we all know that people write thesises on arcane subjects
0043
 1   that nobody else has written on before, not many people have
 2   written on before.  That doesn't mean that is the only thing
 3   they have any experience in.
 4             MR. HUBERT:  I understand, your Honor.
 5             THE COURT:  Okay.
 6   Q.   (BY MR. HUBERT)  Tell me, have you ever had any work
 7   published at all, Ms. Dimassimo?
 8   A.   I have had papers published in Planning Magazine, which is
 9   a planning publication of the American Planning Association.
10   And in the League of Municipalities Journal when I was in
11   Alabama.
12   Q.   All right.  Did any of them deal with transportation?
13   A.   No.
14             MR. HUBERT:  I suggest to you, in spite of what is
15   said, she is not qualified to offer expert witness testimony in
16   the transportation case.  That is what she is being offered for.
17             THE COURT:  I am going to let her, I am qualifying her
18   to continue to offer the kind of testimony she has offered so
19   far.  I think everything she has said so far has been well
20   within her qualifications.  I will, it depends on what expert
21   questions are asked, whether or not the, Mr. Thomason wants to
22   go into more detailed subjects.  Then I will, maybe on my own
23   motion, question whether or not that is an area of her
24   expertise.  But she was testifying about these collateral roads
25   of some kind -- what do you call them, these, the roads.
0044
 1             THE WITNESS:  Oh, collector system.
 2             THE COURT:  Collector system.  Well, she got, she has
 3   studied community planning.  She has a degree in community
 4   planning.  A community is usually made up of roads and highways
 5   and houses and shops and factories and things like that.  So it
 6   seems to me that that is well within the ambient of her
 7   expertise.  Move on.
 8   Q.   (BY MR. THOMASON)  Ms. Dimassimo, let me ask you, Dr.,
 9   Professor Kulash testified as to the no-build alternative; that
10   he did not believe the inquiry into it had been rigorous
11   enough.  Would you tell the court your response to that, please?
12   A.   I believe the no-build alternative was rejected.  In fact,
13   we accepted that on the basis of the safety data that was
14   presented for that corridor.  It simply would not be prudent on
15   our part to not concur in an improvement that resulted in fewer
16   accidents and fewer deaths than obviously would continue to be
17   found in that corridor with traffic growing, if we did nothing
18   at all, and the kinds of traffic conditions that it is already
19   experiencing.
20   Q.   Do you recall his testimony as to where safety weighs in as
21   a factor in shaping a world of alternatives?
22   A.   Yes.
23   Q.   And what was your recollection and what was your response
24   to it?
25             MR. HUBERT:  If your Honor please, he is asking her to
0045
 1   recollect the testimony of Mr. Kulash.  That is, that is
 2   irregular.  The way to handle someone else's testimony is to
 3   have it at least in a transcript form, submit it to the witness
 4   and have her see it.  We are dealing here with recollection.
 5   This is an improper way of handling that, your Honor.  She can
 6   state her opinion, but to make an argument against Mr. Kulash
 7   based on her recollection, that is my objection, your Honor.  It
 8   is immaterial and irrelevant.
 9             THE COURT:  Objection overruled.
10   Q.   (BY MR. THOMASON)  Would you answer the question?
11   A.   As I recall, he said that safety was a primary
12   consideration in the planning of roads.  And that is correct.
13   In fact, it is one of our most, if not the most important
14   consideration.  We don't plan unsafe roads.
15   Q.   Do you consider the eastern and western alternatives within
16   the EA for Houston Road to be on the extremes of range of
17   alternatives?
18   A.   I'm not sure I understand what you mean by within the
19   extremes.
20   Q.   Mr. Kulash said to my --
21             MR. HUBERT:  Excuse me, your Honor, that would be an
22   improper way to direct examine a question.  To point out to the
23   witness certain testimony that someone had asked her to either
24   agree or not degree with.  It is a leading question and it is
25   improper.
0046
 1             MR. THOMASON:  Let me withdraw it.
 2   Q.   (BY MR. THOMASON)  Based on the testimony you have heard
 3   today, would you, as the responsible federal official, reopen
 4   the inquiry into the scope of alternatives for Houston Road?
 5   A.   No, we would not.
 6   Q.   Let me ask you, that during the development of the EA for
 7   Houston Road, what if any state, local and federal resource
 8   agencies were contacted and what if any role did they have?
 9   A.   There are, there is a distribution list that is contained
10   in the document that names all of the federal state and local
11   agencies that received copies of the document for their review.
12   And we would expect comment from them, if they have any, and
13   would address that comment if received.
14             MR. HUBERT:  Object, your Honor, on the grounds of
15   relevancy.  Unless she can say what she did in this case, not
16   what we do in a theoretical case, but in this case, then the
17   testimony is irrelevant an immaterial.
18             THE COURT:  Overruled.
19   Q.   (BY MR. THOMASON)  Can you tell the court, please, which,
20   if any state, local or federal resource agencies were, had a
21   role in the development of the EA on Houston Road, please?
22   A.   I can read it to you from the document.
23   Q.   Would you please.  Just -- let me, let's take this.  Would
24   you tell me those who would have been involved with flooding.
25   A.   The Federal Emergency Management Agency, and the state
0047
 1   agency that governs Georgia Flood Plains.
 2   Q.   The State Georgia Flood Plain Program?
 3   A.   Yes.
 4   Q.   Would the U.S. Corps of Engineers, its regulatory function
 5   be involved?
 6   A.   Yes, the State Historic Preservation Officer.
 7   Q.   I'm talking about flooding.
 8   A.   Yes.
 9             MR. HUBERT:  All of this is improper.  It is just a
10   leading question, conversation going back and forth.  The
11   questions are not --
12             THE COURT:  Mr. Hubert, let me make an observation.  I
13   gave you an opportunity to put on your case.  Now I'm asking to
14   you give the defense an opportunity to put on their case.
15             These constant objections, which I think are baseless,
16   do nothing but interrupt the testimony, which keeps me from
17   really learning anything.  And I don't know whether that is your
18   intention or not, but I think that is the effect of it.
19             MR. HUBERT:  I think the court knows that my intention
20   is to see the evidence is proper.  And that is my sole intention
21   here, and I will do it as long as I can, your Honor.
22             THE COURT:  You will do it until you become, until it
23   becomes so disruptive that I won't allow you to do it.
24             MR. HUBERT:  No, sir, I don't want to do that.
25             THE COURT:  I know you don't, and I don't either.
0048
 1   Let's move on.  The question was perfectly proper.
 2   Q.   (BY MR. THOMASON)  Ms. Dimassimo, was the United States
 3   Environmental Protection Agency Wetland Planning Branch
 4   consulted?
 5   A.   Yes.
 6   Q.   And was the United States Housing and Urban Development
 7   Community Planning and Development Branch consulted?
 8   A.   Yes.
 9             MR. HUBERT:  Judge, I am, at great risk I do this:
10   The appropriate question was who was consulted, is it in the
11   document, and it is clearly leading.
12             THE COURT:  You are technically right on that, it is a
13   leading question.  But she has a document there.
14             Ask it open-ended, read it.  Get the information,
15   however you can.
16             MR. THOMASON:  I'm sorry, I'm doing this only as a
17   courtesy, trying to move this along.
18   A.   I have got it here if you want me to read out.
19   Q.   (BY MR. THOMASON)  Read them all, please.
20   A.   The State Conversation, Natural Resources Conversation
21   Service, Field Supervisor for the U.S. Fish and Wildlife
22   Service, the U.S. Geological Survey Environmental Affairs
23   Program, Georgia Forestry Commission, the U.S. Environmental
24   Protection Agency Wetlands Planning Section, HUD, Housing Urban
25   Development Community Planning and Development, the Middle
0049
 1   Georgia RDC, Federal Emergency Management Agency and Georgia
 2   State Flood Plan Management Program, Corp of Engineers
 3   Regulatory Functions Branch and the Georgia Natural Heritage
 4   Program.
 5   Q.   At what point in the process were those agencies contacted?
 6   A.   They were contacted at the point that an environmental
 7   assessment had been prepared and was being distributed for
 8   comment.
 9   Q.   For what purpose was it distributed to them?
10   A.   To secure their comments and have them point out anything
11   that we might need to consider that we had not considered.
12   Q.   What, if anything, was done with an agency's comments?
13   A.   They are considered and addressed.
14   Q.   Do you know whether any of those agencies commented on
15   flooding?
16   A.   No, they did not.
17   Q.   What is done with the lack of, if there is no comment back
18   from an agency, whose jurisdiction involves certain matter,
19   control over flooding, what is done with the lack of a response
20   or comment?
21   A.   We presume that there are no impacts that, beyond what we
22   have already identified that we need to consider.
23   Q.   What is the state of the practice between and among state
24   local and federal agencies about commenting on other agency's
25   projects?
0050
 1             MR. HUBERT:  Judge, she is being asked now about state
 2   and other agencies other than her own.  I object, to which she
 3   is not competent.
 4             THE COURT:  Objection overruled.  I think it is a fair
 5   question.  Go ahead.
 6   Q.   (BY MR. THOMASON)  Can you answer, please?
 7   A.   Through an intergovernmental coordination process we share
 8   documents, environmental assessments, environmental impact
 9   statements that are prepared by our agency or others.  We are on
10   the distribution list of other agencies for their environmental
11   documentation, and we comment as appropriate, and we take their
12   comments into account.  We have to.
13   Q.   If I, let me ask you, if I'm an agency such as the U.S.
14   Geological Survey and I receive a document, do you know, among
15   the agencies, the consensus practice of, do I comment or fail to
16   comment?
17   A.   If you do not, if there are no comments you don't comment,
18   or if you are favorable, generally, we won't get a letter back,
19   if there is no other areas of concern.  If there are areas of
20   concern, then we'll get a comment letter from them.
21   Q.   Were there any letters from the state or local or federal
22   resource agencies?
23             MR. HUBERT:  Excuse me, your Honor.  I move to strike
24   that last answer.  If there are comments, they would be made,
25   she said, is nothing but a hearsay statement.  Working through
0051
 1   the mind of someone else as to what they would do under given
 2   circumstances.  And as applied generally, one might be able to
 3   testify, but this, applied to this particular case, it is
 4   improper testimony.  I object to it.  Hearsay.
 5             THE COURT:  Well, it is not hearsay.  Objection
 6   overruled.  Move on.
 7   Q.   (BY MR. THOMASON)  What, when the state or local applicant
 8   proposes a highway project, what if any thing is done in
 9   inquiring into preexisting natural conditions within a project
10   limits?
11   A.   We both study, through whoever is performing the actual
12   environmental document.  Be it a consultant or the state.  An
13   actual field survey is conducted, actual field surveys are
14   conducted, and then through this coordination process, with
15   other federal, state and local agencies having jurisdiction, we
16   received comments and have matters brought to our attention that
17   need to be considered.
18   Q.   Can you tell the court, please, what, what we learned and
19   when we learned it about any preexisting natural condition in
20   the area regarding the flood or flood plain?
21   A.   There were two things actually done within that particular
22   area.  One is there was a field survey conducted by the
23   consultants who performed the environmental analysis.
24        In addition to that, the Federal Emergency Management
25   Agency's Flood Insurance rates were verified against that to
0052
 1   ensure that in fact the project limits did not fall within the
 2   hundred-year-flood plain.  And they did not.
 3   Q.   Who bears the responsibility of making the field survey or
 4   the inquiry?
 5   A.   The agency that is preparing the documents.  Ultimately, we
 6   have to accept whether or not we believe it to be accurate.  But
 7   the state DOT and the county, on this particular project in this
 8   case, the county, because it is a county project.
 9   Q.   Upon what do they rely in making that inquiry?
10   A.   They rely upon both actual field inspections and field
11   surveys, as well as on a available information like the one I
12   just gave you in terms of the flood insurance right now.
13             MR. HUBERT:  I will rise one more time, judge, and ask
14   for a continuing objection, and I will say nothing else in this
15   case.  But this is improper testimony in terms of this witness
16   offering opinions and statements of fact by what other agencies
17   and other parties do in this process.
18             Number one, it is not related to this particular
19   project, and number two, it asserts that she can speak for other
20   agencies and work through their mind.
21             Again, I say it is a hearsay statement.  Calls for
22   conclusions and is improper.
23             THE COURT:  Let me ask the witness:  What is your
24   title?
25             THE WITNESS:  Assistant Division Administrator.
0053
 1             THE COURT:  For the Federal Highway Administration.
 2             THE WITNESS:  Georgia Division.
 3             THE COURT:  Georgia Division.
 4             THE WITNESS:  Un-huh.
 5             THE COURT:  Whole State of Georgia is within your
 6   spore of interest, scope of interest.
 7             THE WITNESS:  Yes, sir.
 8             THE COURT:  The matters that you have been testifying
 9   about; are these matters that you deal with?
10             THE WITNESS:  Routinely, yes, sir.
11             THE COURT:  Are you relying on what somebody else has
12   told you about what other agencies and other organizations do,
13   or is this something that you have, that you deal with
14   yourself?  Or is it done under your supervision and control?
15   A.   I'm relying on the matter of the public record of the
16   environmental document, which is publicly made available, and
17   documentations of all of the analysis, study or whatever that we
18   must ultimately base a decision on is contained within that
19   document.
20             THE COURT:  You are not -- it is your testimony that
21   you are not, you are knowledgeable in the areas in which you
22   have been testifying?
23             THE WITNESS:  Yes, sir.  We don't go behind -- just so
24   you will understand, for example, we get an environmental
25   document in, and let's say just for sake of argument they say
0054
 1   there is seven historic resources that potentially could be
 2   impacted.  We do not go out in that corridor and check behind
 3   them.  But we do look at the documentation that is provided the
 4   coordination with the State Historic Preservation Officer, or
 5   other entities.  In that case that would be the binding one, to
 6   determine that in fact they properly did the study; that the
 7   appropriate authorities concurred that that study and
 8   determination and that we therefore can base an official
 9   approval action upon that having actually occurred.
10             THE COURT:  I think the witness is testifying as to
11   matters which she is familiar with and under her supervision and
12   control, and you may have a continuing objection.  That is
13   fine.  But I think it is proper testimony.  Overruled.
14   Q.   (BY MR. THOMASON)  Ms. Dimassimo, let me ask you to look at
15   Government's Exhibit 5, which has been marked for
16   identification.  Have you found it please, ma'am?
17   A.   I have it.
18   Q.   Can you tell the court, can you identify it to the court?
19   A.   This is a flood insurance rate map for the area in
20   question, within the project limits.
21   Q.   What role, if any, does it play in the identification of
22   preexisting conditions on Houston Road?
23   A.   It is one of the pieces of documentation that the county
24   would have used in determining that they were not within the
25   hundred-year-flood plain.
0055
 1   Q.   What if any role did this particular map and depiction play
 2   in the federal decision to allow the construction go forward?
 3   A.   It confirms that in fact the information that is contained
 4   in the document is accurate, and that the project limits that we
 5   are considering for the proposed improvements to Houston Road do
 6   not fall within the hundred-year-flood plain.
 7   Q.   There was testimony from several people during the week of
 8   flooding in the area.  Did federal highway have any contact,
 9   during the preparation of the environmental assessment, from any
10   of these people or from CAUTION itself?
11   A.   Yes, sir.
12   Q.   Can you tell the court what was the nature of the contacts
13   and by whom, if you remember, personally?
14   A.   We have had contacts with a number of members of the
15   CAUTION Macon group.  I know that Suzan Rivers has had a lot of
16   contact with our office.  We have had telephone calls.  We have
17   written letters, and we came down, as you heard a good bit about
18   over the last two days, we came down in December of 1998 and had
19   a meeting to try to, in a comprehensive way, have all of those
20   parties together and talk about their concerns and try to
21   address what questions may have fallen under the purview of the
22   Federal Highway Administration.
23   Q.   By what standards or parameters do, does the Federal
24   Highway Administration have in proposing or considering, under
25   NEPA, a project that would be, or would impact or likely impact
0056
 1   or perhaps impact a flood plain?
 2   A.   We, we have to avoid the hundred-year-flood plain.
 3   Q.   By what authority do we avoid it?
 4   A.   I'm not --
 5   Q.   Is it based on an engineering principle somewhere, or law?
 6   A.   It is based on law.
 7   Q.   Okay.  Is there a hundred-year-flood plain here on Houston
 8   Road?
 9   A.   Not on the part that is within our project limits, no.
10   Q.   If there is a -- where is the flood plain shown, if any,
11   in -- classify it for the court if you would?
12   A.   There is a flood plain shown within the area we heard some
13   discussion about yesterday, which is on Chriswood Drive.  It is
14   called the -- I'm not sure I can pronounce they, Echeconnee
15   Creek tributary.  And it falls, looks like, looks like it falls
16   to the east, easterly of the proposed improvements.
17   Q.   What if any consideration is given of a flood plain that is
18   preexisting but not within the project right-of-way limits?
19   A.   We don't, we cannot correct, we don't have the statutory
20   authority or the funding authority or approval authority to
21   correct existing conditions.  But we would have to address any
22   impacts that we caused.
23   Q.   What if any impacts does the proposed highway construction
24   cause?
25   A.   Based on the environmental documentation, we are not
0057
 1   creating any new impacts.  And, in fact, there is an
 2   environmental commitment in the document for a drainage system
 3   that addresses any storm water runoff from the new facility, and
 4   avoidance, that the reconstruction of Houston Road, since it is
 5   an existing facility will be reconstructed to meet any
 6   requirements of the hundred-year-flood plain, which we would do
 7   anyway.
 8   Q.   What physically is done to, I mean, what kind of structures
 9   are prepared out there or constructed in order to comply with
10   the environmental litigation commitment made within the federal
11   environmental document?
12   A.   The environmental measures are carried forward,
13   construction measures like this would be carried forward into
14   the final construction plans and implemented during the
15   construction projects.
16             MR. THOMASON:  If your Honor please, we would offer
17   Federal Highway Exhibit 5.
18             THE COURT:  All right.
19             MR. HUBERT:  Your Honor, unless this is, I object to
20   it unless it is in the environmental assessment and was
21   considered prior to the determination of a FONSI, in, I believe
22   in August of 1998.  And as authority, we would ask the court to
23   look at Preserve Endangered Areas against the U.S. Corps of
24   Engineers 87 F.3d 1242 which was relied on yesterday by the
25   court.
0058
 1             THE COURT:  You want to respond to that?
 2             MR. THOMASON:  I believe she said that it was.
 3   Perhaps I can ask her again.
 4   Q.   (BY MR. THOMASON)  Is this, is this information upon which
 5   the Federal Highway Administration had prior to, prior to the
 6   approval of the funds?
 7   A.   To my knowledge, yes, it was.
 8             MR. HUBERT:  We are talking about this document, your
 9   Honor.
10             THE WITNESS:  We have flood insurance --
11             MR. HUBERT:  We are talking about Government 5, your
12   Honor, being admitted into testimony.  That has got to be
13   connected up under the Preserving Endangered Areas case.
14             THE COURT:  The information shown on Defendants'
15   Exhibit 5 shows what appears to be Echeconnee Creek as it
16   crosses Chriswood Drive, and then goes over into the vicinity of
17   Rosa Drive, or maybe it comes from over there and goes towards
18   the river, I guess.  And the purpose of -- what is the purpose
19   of this document?
20             MR. THOMASON:  I had asked her, please, sir, about our
21   knowledge of preexisting natural conditions and how and what if
22   any role they played in the advancement of an environmental
23   assessment for a project --
24             THE COURT:  All right.
25             MR. THOMASON:  -- Houston Road.  Then I had asked her
0059
 1   about preexisting natural conditions outside of the project
 2   limits.  And she had said that this was information on Houston,
 3   the Houston Road, that the Federal Highway Administration had
 4   prior to making its decision and upon which it had relied.
 5             THE COURT:  All right.  Let me ask the witness.  What
 6   is zone X?  What does that mean?
 7             THE WITNESS:  Zone X is area of the 500-year-flood.
 8   There is a key, a legend on the next page, your Honor, that
 9   describes what those are.
10             THE COURT:  And the road, Houston Road is shown to the
11   far left.
12             THE WITNESS:  Yes, sir, right here.
13             THE COURT:  All right.  Objection overruled.  It is
14   admitted.
15   Q.   (BY MR. THOMASON)  Based upon the information that you had
16   about any flood plain on Houston Road, prior to the finalization
17   of the agency action, is there anything about its preexisting
18   natural condition that shaped or altered the decision of the
19   alternatives within the the EA?
20   A.   No.  Other than the commitment to ensure that we did not,
21   that we, through drainage structures and that, we handled the
22   runoff from the proposed facility and that we could construct a
23   hundred-year-flood plan.
24   Q.   In the context that you had with, perhaps Ms. Meggs and
25   Varnadore, or others, about preexisting natural conditions in
0060
 1   the area, what if anything or what if anything did you indicate
 2   to them about our knowledge of a preexisting condition?
 3   A.   We indicated to them -- many of the concerns that they
 4   brought to us were things that needed to go back to either the
 5   county government or to the MPO, to the local planning process.
 6        In terms of our understanding of preexisting condition, we
 7   indicated to them we did not, we did not come in and correct
 8   preexisting conditions.  We could only address what was within
 9   the scope of our project.  And urged them to utilize the other,
10   the agencies and that sort of thing to try to address their own
11   issues.
12   Q.   Who has, who has the authority to deal with preexisting
13   conditions on Houston Road?
14   A.   County.  Or whatever local jurisdiction has authority over
15   that.
16             MR. HUBERT:  Judge, if this -- this witness is simply
17   not competent to offer testimony about that.  It is a question
18   of competency, and I object to it.
19             THE COURT:  Well, I think the answer was the county or
20   whoever has jurisdiction.  It is hard for me to treat that as --
21   I think she admitted by the answer she didn't know.
22   Q.   (BY MR. THOMASON)  Are you familiar with an executive order
23   that was given yesterday as 119988?
24   A.   Yes.
25   Q.   Would you tell the court, please, if federal highway has
0061
 1   implemented that executive order in the preparation of the EA
 2   FONSI on Houston Road?
 3   A.   Yes, we have.
 4   Q.   How did we comply with it, please?
 5   A.   Through our full consideration of those effects.
 6   Q.   What is the practical effect of the construction that is
 7   ongoing on Houston Road to any rainwater runoff in the area?
 8   A.   The runoff that would be created through the construction
 9   of the facility, as it is proposed, would be handled as I
10   previously stated, through the drainage system that is being put
11   in place as a part of the project.
12   Q.   After the project is completed, would there be a difference
13   to people adjacent to the road as to the amount of water?
14   A.   There will be no new runoff created that would impact
15   them.
16   Q.   Let me ask you to what extent Macon's air quality played in
17   the preparation of the FONSI on Houston Road?
18   A.   The required analysis for CO was performed.  The results
19   are indicated in the environmental document, and the levels that
20   were documented are below those that would put the project out
21   of the acceptable range.
22   Q.   Let me go back for a second.
23        For what reason do we consider Macon's air quality in the
24   preparation of the EA FONSI on Houston Road?
25   A.   The only type of air quality analysis is required of CO,
0062
 1   because currently Macon is not a nonattainment area for ground
 2   level ozone or any of the other pollutants that were discussed
 3   the other day.
 4             THE COURT:  Macon is not a what?
 5             THE WITNESS:  Macon is currently not a designated
 6   nonattainment area.
 7             THE COURT:  Noncontain --
 8             THE WITNESS:  Nonattainment.
 9             THE COURT:  What does that mean?
10             THE WITNESS:  Any of the areas that fall out of
11   compliance with air quality for certain types of air
12   pollutants.  It can be for particulate matter.  It can be for
13   ground level ozone.  If you are a designated area, then there is
14   a budget, state implementation program budget that is
15   administered by the environmental protection division of the
16   State of Georgia that one must show compliance with.  But Macon
17   currently is not a designated area.
18             THE COURT:  Does that mean that the levels are not
19   high enough to be a health hazard?
20             THE WITNESS:  Well, one of the things that came out
21   the other day was that there are monitors in place in Macon.
22   But there are monitors throughout Georgia.
23             Macon currently is listed on, based on the levels of
24   ozone or readings that they are getting at those monitors, that
25   they will likely, although it hasn't been done yet, they will
0063
 1   likely be designated by the U.S. Environmental Protection Agency
 2   as a nonattainment area in the future.  But at this point, and
 3   certainly at the time the document was prepared, those types of
 4   restrictions or a compliance did not apply.
 5             THE COURT:  This information you learned under the, in
 6   connection with your job and position?
 7             THE WITNESS:  Yes, sir.
 8             THE COURT:  All right.  Move on.
 9   Q.   (BY MR. THOMASON)  Has Macon ever been out of compliance
10   with the clean air act?
11   A.   No, not as a designated nonattainment area.
12   Q.   To what extent did we have an obligation to perform inquiry
13   into sulfur oxide emissions?
14   A.   Sulfur dioxide or oxide emissions, as were described the
15   other day, that is a pollutant that is associated with fossil
16   fuel.  Typically with stationary sources.  It would not be a
17   mobile source pollutant.  So I wasn't clear at all as to the
18   nature of that discussion.
19   Q.   Are we, I will ask you, would that be the kind of emissions
20   that come from a power plant burning coal?
21   A.   Yes, sir.
22   Q.   Is there any coal-fired facilities in the area or adjacent
23   to Houston Road that would be, necessarily have to be
24   considered?
25   A.   Not that I am aware of, no.
0064
 1   Q.   Did the agents, did our agency have an obligation to
 2   consider and write to an EA, whether sulfur dioxides or oxides
 3   existed or didn't exist out there?
 4   A.   No.
 5   Q.   Let me ask you the same question as respects particulate
 6   matter.  What is that and how do we take it into consideration,
 7   if we are required to do so?
 8   A.   Particulate matter is another type of air pollutant and it
 9   is, we are not, this is not a PM designated nonattainment area,
10   and, again, we are not required to take that into account.
11   Q.   PM, small particle matters of dust and similar kinds of
12   pollutant in the air?
13   A.   That is correct.
14   Q.   Do we have such an obligation to consider that at Houston
15   Road before we sign the EA FONSI?
16   A.   No, we do not.
17             MR. HUBERT:  Excuse me, your Honor, I, this witness is
18   not an engineer on air quality control and is held forth on
19   various opinions about that.
20             THE COURT:  Mr. Hubert, we have been over this time
21   and again, and you have got a continuing objection.  So I'm
22   going to ask you to sit down and let this examination continue.
23   Q.   (BY MR. THOMASON)  Did we have an obligation to consider
24   ground level ozone?
25   A.   No, we did not.
0065
 1   Q.   Why do you say that?
 2   A.   Again, currently, Macon is not designated as a
 3   nonattainment area for ozone and therefore the environmental
 4   document that we considered and approved was absolutely right
 5   and correct in what it did consider, which is the CO analysis
 6   which was performed and is documented.
 7   Q.   If you would, please, tell his honor the interrelationship,
 8   if there is any, between the highway planning and the Clean Air
 9   Act, compliance with the Clean Air Act.
10   A.   For designated nonattainment areas.  And currently the only
11   such nonattainment area is in Atlanta, in the State of Georgia.
12        We are required to develop plans and transportation
13   improvement programs that show that they are in compliance with
14   the state implementation plan air budget, for both mobile and
15   stationary sources.
16        We have an obligation to coordinate that interrelationship
17   through the planning process and are required to do so through
18   the granting of a conformity determination on plans and programs
19   in those areas.  But in the case of Macon, because it is not a
20   designated nonattainment area, there is no such federal
21   requirement, and we have not only no obligation, but no legal
22   basis for doing so.
23   Q.   Is there any obligation within the Clean Air Act that
24   prescribed the construction of Houston Road Project?
25   A.   That what?
0066
 1   Q.   Is there anything within the Clean Air Act that prescribes
 2   the construction of a five-lane project on Houston Road?
 3   A.   No, sir, there is not.
 4   Q.   Let me ask you, please, what if any role and responsibility
 5   does federal highway have in, as it prepares the highway project
 6   NEPA document, to consider historic sites?
 7   A.   We are required to consider impacts to historic sites.
 8   And, actually, there are two mechanisms for doing that.  One is
 9   through the Section 106 process, which requires us to make
10   determinations of effect that the transportation improvement
11   will have on the historic resource, on both either archeological
12   or a standing instruction, as in the case of the Houston Road
13   Project.  The different types of effect calls that you can have
14   are no effect, a no adverse effect or an adverse effect.
15        We --
16             MR. THOMASON:  If your Honor please, the applicable
17   regulations are found at 36 Code of Federal Regulations, Part
18   800.  And they are the regulations of the Department of
19   Interior, which arise from the Section 106 of the National
20   Historic Preservation Act.
21   Q.   (BY MR. THOMASON)  Who are the agencies, if any, that are
22   responsible for 106 consultation?
23   A.   Advisory Council on Historic Preservation and the State
24   Historic Preservation Officer.
25   Q.   Can you tell the court, please, who the Advisory Council
0067
 1   and Historic Preservation is?
 2   A.   They are a, part of, they are the agency, the federal
 3   agency that we are, a federal council that we are required to
 4   coordinate with that make such determinations.  They receive all
 5   of the documentation of the studies and such that were done
 6   about the location of the transportation improvement, and its
 7   relationship to those historic resources and structures, as well
 8   as the recommendation of the call of what the effect will be.
 9        They govern, we have memorandums of agreement for those
10   calls that are adverse effect calls, and what the mitigation
11   will consist of, and they must approve that mitigation prior to
12   us moving for transportation or that documentation.
13   Q.   And the advisory council and historic preservation is part
14   of what agency, please?
15   A.   U.S. Interior.
16   Q.   U.S. Interior, and the State Historic Preservation Officer;
17   who is he or she?
18   A.   I beg your pardon?
19   Q.   Who is the State Historic Preservation Officer?
20   A.   That is the Mr. Lucas.
21   Q.   Forgive me, I was asking you, in the structure of state or
22   local government, who is the State Historic Preservation
23   Officer?
24   A.   He is the, or he or she is the person that we are required
25   to coordinate again, any impacts that we would have to both
0068
 1   either standing structure, historic resources or to
 2   archeological resources.  They make the calls of whether or not
 3   those structures are eligible for the National Register.  And
 4   eligibility alone protects them.  They don't actually have to be
 5   on the National Register.
 6   Q.   Can you tell the court if there were any sites on Houston
 7   Road, within the project limits, that were considered on or
 8   eligible for the National Register of Historic Places?
 9   A.   Initially in the environmental assessment, there were seven
10   structures that were identified as being eligible for the
11   register.
12        A memorandum -- there were some that got no adverse effect
13   calls and others that got adverse effect calls, based on the
14   visual impact or change of setting or whatever.
15        There was a memorandum agreement prepared documenting what
16   sorts of either documentation or mitigation measures must be put
17   in place in order for the project to proceed.  And that was
18   signed by the advisory council, approved by the advisory council
19   and became a part of the environmental assessment and FONSI.
20        Subsequent to that time, and initially, the Heard School
21   that has been discussed, was also considered.  It was not
22   overlooked or omitted.  But at that time, the State Historic
23   Preservation Officer who makes those determinations of
24   eligibility did not find that structure eligible.
25        Subsequently to the meetings that were held and the
0069
 1   concerns that were raised by members of the local community
 2   regarding that structure, as well as the church, and I believe
 3   an associated cemetery, there were other site visits made, and
 4   the State Historic Preservation Officer -- and we have, I think,
 5   a letter here also that was given to us, provided to us as
 6   documentation, he reversed his earlier decision and did in fact
 7   find, not reversed but found additionally that he, upon
 8   reconsideration, he also found the Heard School to be eligible.
 9   However, he did not find the church or the associated property
10   there to be.
11        So we did what is called a reevaluation.  And went back out
12   and properly documented that site and included it before any
13   final action was taken to move the project forward.
14             MR. THOMASON:  May I approach, Ms. Dimassimo?
15             THE COURT:  Yes.
16   Q.   (BY MR. THOMASON)  I hand you a copy of what is marked and
17   admitted as Plaintiffs' 59.  If I have the number right.
18   A.   Yes, sir.
19   Q.   Tell court what it is, please, and what it -- we are shown
20   as a receiving a copy.  What is the purpose and function of the
21   letter and what if any action was taken by our agency in
22   response to it?
23   A.   This is a letter from the Historic Preservation Division,
24   Georgia Department of Natural Resources to David Studstill, and
25   it requests his reconsideration of the National Register
0070
 1   eligibility of the John Heard School.
 2        And the action that we took, as I have described just a few
 3   minutes ago, is that it was in fact reconsidered, and based on a
 4   new determination of eligibility, it was included in the
 5   environmental litigation considerations of this document.
 6   Q.   Can I ask you to identify Federal Highway Defendant Exhibit
 7   4?
 8   A.   I don't know if I have it.  I don't know if I have it.
 9   Q.   I have handed you what is marked for identification as
10   Federal Highway Exhibit 4.  Would you describe it to the court?
11   A.   This is an addendum to the, for an assessment of no effect
12   to the John Heard Elementary School.
13   Q.   What, what, by what process was that document created?
14   A.   Through the process that I just described.  Locals brought
15   to the attention of the State Historic Preservation Officer that
16   there was an additional resource out there that perhaps had not
17   been adequately considered, and when the state historic
18   preservation officer reconsidered the documentation to
19   appropriately assess effect and document the environmental
20   impaction was prepared.
21   Q.   What if any action did federal highway take with respect to
22   finding of no adverse effect on John Heard School?
23   A.   We accepted, and the addendum effect and we evaluated.
24   Q.   Okay.  Let me ask you to look at what was marked as
25   defendant, Federal Highway Defendant's Exhibit 3.  Identify that
0071
 1   for the court, please.
 2   A.   Again, I don't know that.  This is a letter from Ray Luce
 3   indicating that they, they are offering their comments to advice
 4   both Federal Highway Administration and the Georgia Department
 5   of Transportation on the effects of the Houston Road Project --
 6             MR. HUBERT:  Excuse me, your Honor.  If the document
 7   is not in evidence, I trust that it is appropriate for me to say
 8   it should be in evidence before she reads it.
 9             THE COURT:  Before she reads from it, it needs to be
10   tendered in evidence.
11             MR. THOMASON:  I do so.
12             THE COURT:  All right.  That is No. 3.
13             MR. THOMASON:  It is, sir.
14             THE COURT:  All right.  I don't believe I have it.
15             THE WITNESS:  This particularly deals with the John
16   Heard Elementary School and the Liberty Church.
17             MR. THOMASON:  Hang on a second.
18             THE COURT:  Wait a minute.  Let me see the document.
19             Do you have a copy Mr. Hubert?
20             MR. HUBERT:  No, sir.
21             MR. THOMASON:  I gave my copy --
22             MR. HUBERT:  Judge, if the government document has
23   been in, I don't understand it as being in except No. 4, which I
24   put in yesterday.  That is the only government document that I
25   know that is in.
0072
 1             THE COURT:  Well --
 2             MR. ALMAND:  What is the date?  I can give the court a
 3   copy.  What is the date on that?
 4             THE COURT:  There is a letter there.  Mr. Hubert says
 5   he doesn't have a copy.  Show him that copy so he can look it
 6   over.
 7             MR. THOMASON:  I personally gave it to him.
 8             MR. ALMAND:  Judge, do you have a copy?  I have one if
 9   you don't.
10             THE COURT:  I have a copy.  Whose copy do I have?
11   Well, this is the copy that was tendered.  Okay, let's move on.
12             MR. HUBERT:  I have this document from Studstill.  Is
13   that the one you are talking about?
14             THE COURT:  Let me ask you, have you had a chance to
15   look this over, Mr. Hubert?
16             MR. THOMASON:  Judge, let me move on if you would.
17             THE COURT:  All right.
18             MR. THOMASON:  Rather than take anymore time.
19             THE COURT:  Okay.
20   Q.   (BY MR. THOMASON)  Ms. Dimassimo, let me ask you:  Has the
21   106 process under the National Historic Preservation Act been
22   concluded by the Federal Highway Administration with respect to
23   the Houston Road Project?
24   A.   It has.
25   Q.   Does it have the concurrence of the State Historic
0073
 1   Preservation Officer?
 2   A.   It does.
 3   Q.   And the advisory council?
 4   A.   It does.
 5   Q.   Okay.  There is before you, Government's Exhibit 1 and 2.
 6   Would you identify those to the court, please?
 7   A.   I don't have 1 and 2.
 8   Q.   I beg your pardon.
 9   A.   These are two letters to Suzan Rivers.  One is from the
10   Federal Highway Administration.  The other is from the Georgia
11   Department of Transportation.
12   Q.   Did she contact federal highway regarding historic
13   properties on Houston Road?
14   A.   She did.
15   Q.   And what was the nature of her contact?
16   A.   She contacted us because she was concerned that -- as a
17   matter of fact it wasn't just about Houston Road.  It was
18   generally speaking; that she was concerned about some Intown
19   Historic District impacts that she thought the local road
20   improvement program was having on historic resources in Macon.
21        And so we had, she had sent us a question, a whole series
22   of questions about road projects in Macon, generally speaking,
23   and we coordinated and answered the questions that really were
24   within the purview of the Federal Highway Administration, and
25   those that were within the purview of the Georgia Department of
0074
 1   Transportation, and provided her separate, although, joint,
 2   responses to her questions.
 3   Q.   Okay.  To the extent that she made inquiry of the agency,
 4   did you make an attempt to be responsive to her concerns or her
 5   questions?
 6   A.   Yes, sir, we did.
 7   Q.   Okay.
 8             MR. THOMASON:  We would offer Government's Exhibit 1
 9   and 2, please.
10             THE COURT:  Mr. Hubert.
11             MR. HUBERT:  No objection to Defendants' 1 or 2.
12             THE COURT:  They are admitted.
13             MR. THOMASON:  And we would move admission of 4, if I
14   have not done so.
15             MR. HUBERT:  Four was admitted yesterday, your Honor,
16   I believe.
17             THE COURT:  Four is already in evidence.
18   Q.   (BY MR. THOMASON)  I ask you to, would you look, please,
19   and see if you have a right-of-way certification?
20   A.   I do.
21   Q.   Would you identify it to the court, please?
22   A.   This is the right-of-way certification that we received
23   prior to construction authorization for the project.
24   Q.   And it is marked for identification as which Government's
25   Exhibit?
0075
 1   A.   Government's Exhibit 7.
 2   Q.   And can you tell, from your personal knowledge, as the
 3   responsible federal official for this project and the
 4   information you have before you, whether the state, county, had
 5   acquired all of the right-of-way for the construction of Houston
 6   Road prior to the letting of the state construction contract?
 7   A.   Yes, they did.
 8   Q.   Is the source of that information publicly available?
 9   A.   Yes, it is.
10   Q.   The construction contract?
11             MR. THOMASON:  We would offer Government's Exhibit 7,
12   your Honor.
13             MR. HUBERT:  Your Honor, this document is, cannot
14   purport to state what the situation as to certain global
15   condemnation cases is.  As an order in judgment in a
16   condemnation case, there has been appeals of those, some of
17   those cases recently, and other cases are ongoing.  This
18   document purports to speak for the state of the right-of-way in
19   Bibb County by the department of transportation.
20             She is not competent to offer it.  And I think that it
21   is a document which is unreliable in that regard.  I would
22   object to it.
23   Q.   (BY MR. THOMASON)  Ms. Dimassimo, is the right-of-way, is
24   the Government's Exhibit 7 before you, the typical means by
25   which federal highways advise whether the right-of-way has been
0076
 1   required before we permit the state to go to construction
 2   contract?
 3   A.   It is.
 4   Q.   Does this, was this available from our files and did it
 5   show the state acquired the right-of-way prior to letting a
 6   contract for construction?
 7   A.   It does.
 8   Q.   All right, thank you.  Let me ask you to turn briefly to
 9   the construction contract itself.  Who is, please, if you
10   know --
11             THE COURT:  Is that part of 7?  Are you still on
12   Exhibit 7.
13             MR. THOMASON:  No, sir, I'm trying to move on.
14             MR. HUBERT:  Your Honor, I hope it is not in.
15   Because --
16             THE COURT:  I haven't ruled on it yet.
17             MR. THOMASON:  I beg your pardon.
18             THE COURT:  But you still tendered 7, and this, what
19   you are saying is, this is a certificate from, who is
20   Mr. Mashburger.
21             MR. HUBERT:  He is with the Department of
22   Transportation in the state of Georgia.
23             THE COURT:  I was really asking the witness.
24             THE WITNESS:  Mr. Mashburger is the right-of-way
25   administrator for the Georgia Department of Transportation.
0077
 1             THE COURT:  He is under Mr. Shakelford.
 2             THE WITNESS:  Yes, sir.
 3             THE COURT:  And this is to Mr. Shakelford?
 4             THE WITNESS:  Yes, sir.
 5             THE COURT:  And this project number, STP32571, what is
 6   that?
 7             THE WITNESS:  That is just a project number that is
 8   assigned.  It is the Houston Road Project.
 9             THE COURT:  I mean, does that identify the Houston
10   Road Project?
11             THE WITNESS:  Yes, sir.
12             THE COURT:  The 3.2 miles?
13             THE WITNESS:  Yes, sir, it does.
14             THE COURT:  It shows a total of 142 parcels and 20
15   condemnations and -- order and judgment Superior Court of Bibb
16   County regarding .070 acres of land.  This is, is this one
17   parcel of this project?
18             THE WITNESS:  I believe that is correct, yes.  What
19   this shows is that the, they have already been the
20   condemnation.  The land and improvements have been vacated and
21   the state does have the right to enter and the physical
22   condition on the property.
23             THE COURT:  The document is admitted.
24             MR. HUBERT:  Your Honor, after the fact, I would like
25   to just state for the record, I object to it.  It is not
0078
 1   authenticated.  Clearly, as it relates to this witness, she is
 2   not competent to testify about it and I would ask to exclude it.
 3             THE COURT:  Well, I am at a loss to understand your
 4   objection.  This seems to merely say to the commissioner, okay,
 5   we have acquired the right-of-way, and now you can go forward
 6   from here; is that correct?
 7             THE WITNESS:  That is correct.
 8             THE COURT:  I mean, I don't see that that really has
 9   to do with the issues here.  And why, I mean, it seems to me, to
10   be a necessary link in the chain the defendants are trying to
11   forge.  But I don't see how in any way it harms the plaintiff.
12             MR. THOMASON:  If your Honor, please there is --
13             THE COURT:  Well, let Mr. Hubert speak.
14             MR. HUBERT:  Your Honor, I am confronted with a
15   document that is being authenticated by a person with the
16   federal government that is a state highway department document.
17   She purports therefore to know what it is all about and to say
18   that it represents something that only the state can vouch for
19   and can say it is correct or not; she purports to say that,
20   therefore, she is incompetent to do this.
21             THE COURT:  You want a certified, exemplified copy
22   from Bibb Superior Court as to this order?
23             MR. HUBERT:  Well, Bibb Superior Court, judge, at the
24   very least this should come in some other way than just being
25   offered like this.  It is not certified by the department of
0079
 1   transportation.  Neither is the court order certified at all --
 2             THE COURT:  Do you suspect that there is something,
 3   some flaw in this document?  If you point out what you suspect
 4   to be a flaw, then I will listen and maybe be guided by that.
 5   But it seems to me to be a fairly routine piece of evidence.
 6             MR. HUBERT:  Yes, sir.  Judge, Count 4 or 5 of our
 7   complaint complained about the fact that they did not own the
 8   right-of-way that they purported to own in this area.  That is
 9   in the case.  And at this preliminary injunction stage, what
10   they are doing is saying they do have the right-of-way.  It is
11   our contention that they, the right-of-way is still in
12   question.  There are cases on appeal.  There was a supreme court
13   case not long ago, may be up for rehearing, out of Macon.
14             THE COURT:  You you mean the eminent domain?
15             MR. HUBERT:  The eminent domain cases, that are -- and
16   there is a question of whether or not they actually owned the
17   right-of-way.
18             THE COURT:  Let me ask you this:  When a highway, when
19   the state decides to take property by eminent domain for a
20   highway, they can either do it by agreement, negotiation with
21   the hand owner --
22             MR. HUBERT:  Right.
23             THE COURT:  -- or they can file a condemnation and pay
24   the money into court.  Once they do that they have got title to
25   the road.
0080
 1             MR. HUBERT:  That assumes, your Honor, they have got
 2   all the right-of-way they need.  And it is our contention that
 3   the right-of-way designation is improper, and there is an, a
 4   hiatus area there and there has been a lot of litigation, that
 5   is set forth in the complaint.  And what is being offered by the
 6   federal defendant in this case is a document which comes from
 7   the State of Georgia that this witness is testifying about as
 8   being authentic and satisfying that requirement.  I think it is
 9   improper.  She is not competent to testify about that nor is
10   she, nor is this anything but the rankist sort of hearsay
11   document.  That is written hearsay.
12             THE COURT:  Mr. Thomason, you want to address it?
13             MR. THOMASON:  Just briefly, sir.  This is simply the
14   federal highway right-of-way certification that the State of
15   Georgia routinely uses and sends to us.  It is the means by
16   which they advise us that the right-of-way has been acquired.
17             If you will notice, please, sir, there is 142
18   parcels.  They have 122 deeds and 20 condemnations as of March
19   26, 1999.  There is one parcel, number 101, which they have yet
20   to acquire possessory interest in, but they anticipate acquiring
21   it on May 16, 1999.
22             What I had previously attached to it is the order of
23   the Bibb County, Superior Court of Bibb County giving a
24   possessory interest to the State of Georgia for Parcel 101.  I
25   then provided, and I apologize for not having it before, I
0081
 1   didn't anticipate this would be an issue, a certified of copy of
 2   the court's order.
 3             THE COURT:  All right.
 4             MR. THOMASON:  If I may move for its admission.
 5             MR. HUBERT:  Judge, I, to renew my objection to the
 6   document in spite of 7-A, whatever it is, which was not shown to
 7   me.
 8             THE COURT:  All right.
 9   Q.   (BY MR. THOMASON)  Ms. Dimassimo, would you tell the court,
10   please, the nature of the construction contract for the
11   construction of Houston Road; whose contract is it, please,
12   ma'am?
13   A.   It is a county contract.
14   Q.   And who is the, who solicited the bids for the contract?
15   A.   The county.
16   Q.   What role does the State of Georgia play, if any?
17   A.   I don't have any idea.
18   Q.   Do you know?
19   A.   I beg your pardon?
20   Q.   Do you know what role the state is playing?
21   A.   No.
22   Q.   Okay.
23             MR. THOMASON:  With that, I will tender her for
24   cross-examination, please.
25             THE COURT:  All right, we are going to take about a
0082
 1   ten-minute break.
 2             THE COURT:  Are you withdrawing No. 7 and substituting
 3   7-A?
 4             MR. THOMASON:  No, sir.  I'm sorry, 7 has a
 5   right-of-way certification and a Xerox copy; 7-A is a certified
 6   copy of the same or order.
 7             THE COURT:  We will take that up later.
 8                               (Recess)
 9             THE COURT:  All right
10                          CROSS-EXAMINATION
11   BY MR. HUBERT:
12   Q.   Ms. Dimassimo, don't let me mispronounce your name.  I'm
13   sorry.  Say it for me once again.
14   A.   Dimassimo.
15   Q.   Ms. Dimassimo, we have never met and are unacquainted until
16   this case; is that right?
17   A.   That is correct.
18   Q.   Well, you know who I represent.  I will be asking you some
19   questions about your testimony.  Ms. Dimassimo, the entire
20   inquiry about the federal environmental effort is based on
21   procedures.  Am I correct in that?
22   A.   Yes, sir.
23   Q.   And once the procedures are done, then if a different
24   conclusion were reached by someone else, short of some error or
25   negligence or that sort of thing, the agency expects its
0083
 1   decision to stand and not be troubled or not be challenged.  Is
 2   that a correct statement?
 3   A.   Yes, sir.
 4   Q.   Now, therefore, the focus and importance of all of this
 5   endeavor is to make sure that the procedures are adopted to
 6   produce an appropriate document.  And that is a scientifically
 7   sound document which meets the standards of some scientific
 8   proof, and is a serious inquiry into the environmental issues,
 9   correct?
10   A.   It is to ensure that it is a sound environmental document,
11   yes, sir.
12   Q.   And it requires a hard look at the environmental
13   consequences.  And that word is a term of art, a hard look,
14   correct?
15   A.   Yes, sir.
16   Q.   And I believe the statute says it requires a detailed
17   statement on the environmental impact of the proposed action,
18   detailed; is that correct?
19   A.   That is correct.
20   Q.   And it says, and any adverse environmental effects which
21   cannot be avoided should the proposal be implemented and
22   alternatives to the proposed action.  That is to say, you are to
23   consider alternatives to the proposed action, correct?
24   A.   That is correct.  I'm not exactly sure where you are
25   reading from or --
0084
 1   Q.   Well, I'm reading from the 40 CFR 1502.  And I believe that
 2   is the seminal document, that is to say, the CEQ governs exactly
 3   what the content of an environmental impact statement, an
 4   environmental assessment or a categorical exception has, and
 5   describe some methodology by which you accomplish those
 6   documents.  Is that not correct?
 7   A.   That is correct.
 8   Q.   Okay.  And the Federal Highway Administration had to, in
 9   effect, come to the CEQ and say, these are our proposals.  Do
10   they pass muster?  And you got those approved in 23 CFR?
11   A.   Yes, sir.
12   Q.   Okay.  Now, if it, if it says that you are to look at
13   alternatives, and it says that an environmental impact statement
14   is at the very, the things, at the very heart of the
15   environmental impact statement, is the requirement that the
16   agency rigorously explore and objectively evaluate the projected
17   environmental impacts.  Are those words, words that you use
18   ordinarily in your activities to make sure that -- do you need
19   that?
20   A.   Yes, that is fine.
21   Q.   To make sure you comply with the law?
22   A.   We ensure that we have performed a proper environmental
23   assessment that fully considers all of the impacts.  And any
24   mitigation that may be resulting from those impacts.  We ensure
25   that there is full compliance with the law.
0085
 1   Q.   Yes, ma'am.  But that is simply a conclusion,
 2   Ms. Dimassimo, if we think of the language which says,
 3   rigorously explore and objectively evaluate.  Those are the
 4   words of the language, of the regs, are they not?
 5   A.   I believe that we have demonstrated that.
 6   Q.   Yes.  And it also says that the projected environmental
 7   impact must be looked at with all, all, reasonable alternatives
 8   in completing the proposed action.  All reasonable alternatives
 9   means that if there is six, you wouldn't just look at two.  That
10   is correct, isn't it?
11   A.   The test of all reasonable alternatives in our regulation
12   under 23 CFR 771 applies to environmental impact statements.
13   Environmental assessments are not subject to the same
14   terminology of all reasonable alternatives, but we are required
15   to study both the build and no-build.
16   Q.   Yes, ma'am.  But the, in order to get to that point, you
17   have to consider whether an environmental impact statement
18   should be used or an environmental assessment will do or whether
19   a qualified exemption would apply.
20   A.   In fact, sir, the environmental assessment serves to inform
21   us as to whether or not we proceed from there to a Finding of No
22   Significant Impact or to an environmental impact statement.
23   Based on the information that was gained in the environmental
24   assessment for Houston Road, and there being so few impacts, the
25   decision was made to move forward with the Finding of No
0086
 1   Significant Impact.
 2   Q.   And you say this is a 20-page document that you get
 3   together.  Should be about a 20-page document.  The
 4   environmental assessment?
 5   A.   Our technical advisor specifies, the indication is that it
 6   is not intended to be necessarily a very complex document like
 7   one might expect with an environmental impact statement.
 8   However, most of the time environmental assessments are longer
 9   than that.
10   Q.   Well, at the very limited -- very lest, you have to do an
11   EIS, environmental impact statement, or an EA or not.  Sometimes
12   you know right a way you have to do an environmental impact
13   statement, correct?
14   A.   That is correct.
15   Q.   And are you familiar with the Marta system in the City of
16   Atlanta, Marta Metropolitan Rapid Transit Authority?
17   A.   Yes, sir, I am.
18   Q.   You know there was an environmental impact statement made
19   in that, correct?
20   A.   For what portion of it, sir?
21   Q.   For all of it.
22   A.   I would guess so.
23   Q.   You don't know?
24   A.   I don't know.  I was not involved in any environmental
25   impact statements.
0087
 1   Q.   But it is part of the history of this, Ms. Dimassimo, is it
 2   not, that in the entire Marta system, an EIS was required.
 3   A.   Probably so.
 4   Q.   Do you know that that case went to the Eleventh Circuit?
 5   A.   No.
 6   Q.   Or Fifth Circuit court?
 7   A.   No, sir.
 8   Q.   Do you know that there was a challenge at that time as to
 9   whether or not we could look at each of those stations
10   individually, or whether we had to look at the global system?
11   Do you know about that?
12   A.   No, sir.
13   Q.   Do you know that Judge James Hill said, in the Marta Rapid
14   Transit System that an EIS was required which addressed that
15   whole system globally?
16             THE COURT:  She already said she didn't know about
17   that.  Now you are going into the details of it.  So I assume if
18   she doesn't know about it she doesn't know if details of it.
19             MR. HUBERT:  Judge, I thought it was important for you
20   to know --
21             THE COURT:  If you have something you want to ask me
22   or tell me, address it directly as to me.
23   Q.   (BY MR. HUBERT)  If the Marta system were globally looked
24   at, Ms. Dimassimo, in Atlanta, Georgia by a parity of reasoning,
25   would it not be appropriate to consider that EIS should be done
0088
 1   for the Macon, Bibb County Road Transportation Program?
 2   A.   No, sir.
 3   Q.   I believe that there are certain requirements for an EA or
 4   a QE, which is the qualified exemption, that you can look at
 5   where a road goes and its termini; is that correct?
 6   A.   The road must demonstrate that it has independent utility
 7   and logical termini.
 8   Q.   Can you tell me, have you been out to that place where
 9   there is an overpass and the turn that goes through the, that
10   creates a danger there, and looked at the fact that this road
11   stopped short of that; and you determined that that is a logical
12   termini when it has that dangerous aspect just beyond it?
13   A.   Based on the information we have been provided on this
14   project, as a part of this environmental assessment, and Finding
15   of No Significant Impact, we believe the project to have
16   independent utility and logical termini.
17        There may be other projects within proximity to this one
18   that may need additional transportation improvements considered
19   through the planning process and program for them.  But none of
20   those have been presented to us at this point.
21   Q.   But if they are connected and are to be connected, then
22   they are of a piece, of a whole just like the Marta system in
23   Atlanta, correct?
24   A.   The entire network for the area is part of a system.  But
25   that doesn't mean that there are not individual improvements
0089
 1   within that system that can have independent utility and logical
 2   termini and be advanced for improvements.
 3   Q.   Now, Ms. Dimassimo, you also are aware, from pursuing this
 4   type work, that there has been a device used to avoid the
 5   necessity for an environmental impact statement, or even an
 6   environmental assessment at times called segmentation, correct?
 7   A.   Yes, sir.
 8   Q.   And you know that segmentation is merely the taking of the
 9   whole and dividing it into small parts, and saying by virtue of
10   that, that you don't need an environmental approach to it or an
11   environmental assessment, correct?
12   A.   Frequently, the term that you use, segmentation, means
13   that, I guess where we most often see that or look at that
14   issue, is in whether or not we, for example, a road improvement
15   may stop just short of some type of protected resource.  With
16   the idea being that we don't have to consider it even though the
17   impacts are there.
18        But I do not believe that the notion or the application of
19   segmentation applies in the context of this project.
20   Q.   Can you tell me, was it looked at?  Did you look at the
21   issue of whether or not this entire process that is being
22   employed here is nothing more or less than an attempt to segment
23   this project?
24   A.   We examined the information that was presented to us in the
25   environmental document pertinent to this particular project, and
0090
 1   its purpose and need, and its proposed improvement and the
 2   impacts associated with it.  And based on that we did not
 3   determine that there had been any segmentation.
 4   Q.   Did you address that issue in the environmental assessment?
 5   A.   I do not understand exactly what you mean.
 6   Q.   Did the document itself deal with the question of
 7   segmentation?
 8   A.   You mean did it say there is no segmentation of this
 9   project?
10   Q.   Yes.
11   A.   We, we would not ever see that sort of an assessment.  What
12   we would see is the purpose and need for this particular program
13   improvement.  We don't have documents that specifically would
14   state something like that.
15   Q.   Ms. Dimassimo, isn't it appropriate and, indeed, a
16   requirement of looking at the project at hand to try to look at
17   the scope of the project?
18   A.   Yes, sir.
19   Q.   To try to consider its entire scope?
20   A.   Yes, sir.
21   Q.   And in the consideration of the entire scope of the project
22   and knowing what happens in terms of segmentation, that is,
23   sometimes it is used as a device to get around meeting the
24   statutory requirement of NEPA; is it not appropriate to
25   consider, we have the Macon, Bibb County Transportation Plan
0091
 1   here, but this would not be a segmentation of that process
 2   because, and set forth reasons?
 3   A.   This project, as it is defined, was contained in the
 4   transportation improvement program and plan for this urbanized
 5   area.
 6        In addition to that, based on both the engineering analysis
 7   that was done and prepared, and it included as a background or
 8   whatever, is the support for this environmental document.  And
 9   based on the engineers in our office who assessed the
10   information that we were provided, in order for us to make an
11   approval or not, the determination was made that in fact this
12   project had logical termini and independent utility.
13   Q.   That is to say, your agency relied on work done by others
14   to make that determination.
15   A.   That is correct.
16   Q.   And, therefore, the agency cannot say to anyone, the
17   citizens group or the court or anyone, that you made an
18   independent determination as to whether or not the Houston Road
19   Project would be a segmentation of that project or whether it
20   would be justified to just look at it as an individual 3.2 mile
21   road?
22   A.   We made an independent determination on the basis of the
23   information and analysis that we were provided in the
24   environmental assessment.
25   Q.   Yes, ma'am.  But that -- Ms. Dimassimo, you say you made an
0092
 1   independent determination.  But it was all on information
 2   supplied to you by local government, and a local government
 3   entity that was seeking funds from the Federal Highway
 4   Administration, therefore, it served their purpose to have this
 5   particular road funded without going through the entire
 6   environmental process.  Isn't that so?
 7   A.   I do not believe that to be an accurate statement, sir.
 8   Q.   Okay.  Well, it is, whether it happened or not, that is the
 9   propensity of a local government, which you must be on guard
10   about, surely, Ms. Dimassimo, that they have an interest in
11   having this money given to them for the project just like they
12   want to build it, without complying with the environmental
13   matters.  Isn't that the case?
14   A.   I do not believe that to be so.
15   Q.   Okay.  And you think, then, that the State of Georgia
16   Department of Transportation or Moreland Altobelli, as a
17   contractor, or anyone else has the purpose, when it does an
18   environmental impact statement, of coming in there and actually
19   dealing with these issues in such a way as it challenges the
20   government's right to satisfy environmental problems?
21   A.   I'm sorry.  What are you asking?
22   Q.   I'm asking, do you think that it is done in such a way that
23   they really forthrightly challenge environmental problems when
24   they talk about --
25   A.   I believe that they prepare the environmental documents and
0093
 1   submit them to us for our independent review with the legitimate
 2   purpose of addressing environmental concerns and consequences
 3   and bringing forward a project that is properly done.
 4   Q.   Well, is there any way that you test their legitimacy?
 5   A.   Through the independent review of our office -- just
 6   because we are sent a document, if what you say were true, we
 7   would sign it when it came in the door.
 8   Q.   Precisely what I'm asking is, and I raise this in this
 9   context, if you would consider this:  And that is, we heard you
10   testify, I believe, that if there is an objection that is raised
11   by a letter from a citizen or anyone else in the comment period,
12   then because there is an objection, it is dealt within the EA.
13   A.   All those are considered.
14   Q.   All right.  But if there is no objection, then you consider
15   that that means it is okay to build the project as is and it
16   satisfies all environmental questions, correct?
17   A.   Not necessarily.  Because, for example, through our own
18   independent review of the document, we might find some flaw in
19   the document that might not have been raised by a citizen or
20   someone else, and we would certainly be obligated through our
21   own responsibilities to address that issue.
22   Q.   It was asked you directly, Ms. Dimassimo, it was asked to
23   you, and you said, if I remember the testimony correctly, unless
24   someone comes up in the comment period and tells us that we are
25   inadequate or lacking or done something wrong, we accept it as
0094
 1   an acceptable document, and no comment means no objection, and
 2   we go right ahead.
 3   A.   I believe that the question that was asked me at that point
 4   was, we were talking about the coordination list that is
 5   included in the document.  And Mr. Thomason, I had read that
 6   list out and we were talking about, is it routine -- for
 7   example, if we did not receive any comment letter back on, from
 8   the Federal Emergency Management Agency, I believe was the
 9   example he used, I'm not certain, would we then assume that the
10   flood plain analysis was accurate.  And, yes, we would, unless
11   for some reason we noted something really -- but we would, you
12   know, rely on any of their expertise for something we had not
13   addressed.
14   Q.   If I understand it, then, there is the requirement that
15   this agency's document as produced as an environmental
16   assessment, yet circulated through these other agencies, and
17   that is called the interdisciplinary effort, correct?
18   A.   Interagency coordination.
19   Q.   All right.  When they read it, they can just take it, throw
20   it over there, and as long as they don't comment on it at all
21   you consider it is an okay situation to go with?
22   A.   If they don't comment -- if they comment on a specific
23   issue, then we would go back and look at that specific issue.
24   If they don't comment, and we don't find anything there
25   ourselves, then we would move forward.
0095
 1   Q.   You do mean, literally, no comment at all?
 2   A.   There are times when we circulate documents for comment,
 3   and we may not receive any reply from a particular agency.
 4   Q.   Well, let me ask you if it would be too much to have this
 5   process refined so at least they would say, in one sentence, we
 6   find the document totally satisfactory, or we find the document
 7   marginally satisfactory, or we have no comment; isn't it
 8   appropriate that there be something included in the EIS that
 9   indicates this interdisciplinary action was followed through
10   with in some way?
11   A.   Some agencies do that.  And I suspicion that the reason
12   sometimes we don't get a response back from certain agencies or
13   from an agency may be just shear workload, or something like
14   that.  But the bottom line is, a lot of time is a lot of times
15   we -- a lot of times we get a concurrence letter back.
16   Q.   All right.  It seems to me it would be sufficient if you
17   had a little stamp that said, approved or disapproved, on the EA
18   and say, Corps of Engineers, and sign off.  But there is
19   nothing, according to you, or may be nothing?
20   A.   May or may not be.
21   Q.   All right.  Let me ask you, in terms of this environmental
22   assessment.  We are sure, in this environmental assessment, that
23   after the environmental assessment was accomplished and
24   approved, finally, and after a FONSI issued, Ms. Dimassimo, the
25   fact is that there was an addendum done to it; is that correct?
0096
 1   A.   There was an addendum for the historic resources survey.
 2   Q.   Yes.
 3   A.   And then a reevaluation that we processed.
 4   Q.   Okay.  So we know that however perfect the document was
 5   when it was signed off as a FONSI and agreed to by the agency as
 6   being a satisfactory document, with final approval on which the
 7   FONSI was based, there was, nevertheless, brought to your
 8   attention, somehow, something that required further
 9   elaboration.  And it was done by an amendment.  And that is in
10   Exhibit 4 that has been offered to the court; is that correct?
11   A.   That is correct.
12   Q.   Now, that did not follow the normal procedures in
13   accomplishing that, did it?
14   A.   Yes, sir, it did.
15   Q.   Well, tell me, if you are supposed to comment on it, and if
16   you don't find something wrong and don't say anything about it,
17   then it is accepted as true, how was it that you came to amend
18   the thing in this important area of the historical property?
19   A.   What do you mean -- are you talking about the process for
20   how we came about doing it?
21   Q.   I'm talking about Amendment 4, document 4 that was
22   introduced, called the addendum?
23   A.   That information was developed in response to, as I told
24   you earlier, in my earlier testimony today, as I understand it,
25   the school was in fact considered during the initial historic
0097
 1   resources survey that was accomplished by the consultant as a
 2   part of the preparation of the environmental assessment.
 3        At that time, the State Historic Preservation Officer, whom
 4   we rely upon for determinations of eligibility for the National
 5   Register, did not determine that that structure was in fact
 6   eligible.
 7   Q.   Excuse me.  Was that a serious omission?  Was that a 106
 8   omission?
 9   A.   It is a 106 omission, sure.
10   Q.   And serious.
11   A.   I'm not sure what you mean by that.
12   Q.   I mean it was so significant and so serious that this
13   finalized document had to be amended.
14   A.   Certainly we amended it because it was omitted.
15   Q.   I wanted you to acknowledge whether or not you thought it
16   was serious or not.  Do you think it was serious?
17   A.   It was something that needed to be considered.
18   Q.   Well, ma'am, could you answer yes or no, my question, and
19   that is, did you think it was a serious omission?
20   A.   I don't know how to answer you yes or no.  It is something
21   that needed to be included.  But I don't know what exactly you
22   mean by the term, serious.
23   Q.   Does it meet this qualification that you look at -- you
24   take a hard look and objectively evaluate and rigorously
25   explore?  I mean, how can the environmental impact statement be
0098
 1   omitted, and the environmental assessment agreed to, if it did
 2   not consider a 106 property sitting right in the middle of the
 3   project, please, ma'am?
 4   A.   For whatever reason, based on the information that was
 5   available at that time, that project, that particular property
 6   was not determined -- it wasn't overlooked, it was determined
 7   not to be eligible.
 8   Q.   All right.  Now, if we go back to where we started, we were
 9   talking about procedures.  The procedures were followed.  But
10   even when the procedures were followed, there was a flaw, and it
11   was necessary to amend the EA; is that correct?
12   A.   We did a reevaluation.
13   Q.   All right.  Now, there was also the question -- and are you
14   aware of any of the facts surrounding how the historic property
15   portion of this EA was handled over at the Georgia State
16   Department of Natural Resources Historic Preservation Office?
17   A.   No, sir, I guess through their normal procedures that they
18   review information that was presented to them.  But I don't
19   personally.
20   Q.   Did you consider it a normal procedure that a man's letter,
21   named Mark Edwards, wrote a letter saying these properties
22   should be included and was told not to send it, is something
23   that would be a matter which the federal agency should be
24   interested in?
25   A.   Well, I'm unaware of that letter.
0099
 1   Q.   Did you see the document 53 that was here with the letter
 2   dated November 13th in it, --
 3   A.   I did not see any of your exhibits, sir.
 4   Q.   Did you hear Mayor Marshall testify about the fact that
 5   Mark Edwards was terminated because he wanted to write the
 6   letter, and someone in the DNR said, no, you don't write the
 7   letter.  He said, if I can't write this letter I can't do my
 8   job, I quit.
 9   A.   I was sitting in the room, sir, so I heard the testimony.
10   Q.   Well, does that indicate to you, Ms. Dimassimo, that
11   perhaps there are procedures in the historic provision of this,
12   even now as we sit here today, that would bear careful
13   examination if we are going to meet the statutory requirement of
14   vigorously explore and objectively evaluate the evidence?
15   A.   Sir, obviously, I work for the Federal Highway
16   Administration; and the internal processes of the Georgia
17   Department of Natural Resources, I can't comment on.
18   Q.   Well, I know Ms. Dimassimo, that that is easy to say.  But
19   the fact is, you have a federal duty and responsibility to
20   oversee this process absolutely, and that is the approval
21   process of the environmental work.  And this is part of it.
22   A.   I am unaware, for this project, of any irregularities and
23   how this project was processed.  I'm unaware of any.
24   Q.   Were you unaware, when you heard Mayor Marshall speak?
25   A.   I beg your pardon?
0100
 1   Q.   Are you unaware today when you heard Mayor Marshall
 2   describe it?
 3   A.   I don't know about that situation, other than what he
 4   said.  I mean, that is, it is like, I don't know about that
 5   hearsay or whatever.
 6   Q.   Ms. Dimassimo, the incident with Mark Edwards was a matter
 7   that was set forth in writing by the mayor.  He was writing to
 8   people he thought were involved in the process and needed to
 9   know about what was, he considered a disturbing lack of
10   assiduous in getting to the bottom of the historic property.
11   That letter was missent to other people.  It got played in the
12   papers, and it was abroad around the City of Macon and Bibb
13   County all over the place, and you are not aware of that?
14   A.   I have not seen the letter.
15   Q.   Yes, ma'am.  It was in the courtroom yesterday.
16   A.   I did not see it, sir.
17   Q.   Did you intentionally avoid looking at it?
18   A.   No, sir.  The exhibits weren't passed to the --
19             THE COURT:  I think she has already said she didn't
20   see it.  You can move on to something else.
21             MR. HUBERT:  Yes, sir, I understand.
22   Q.   (BY MR. HUBERT)  Now, Ms. Dimassimo, you also, you also
23   heard several people talk about their drainage problems.  And
24   you relied on a map that someone gave you, or that, I guess it
25   gave it to you because you don't do any of this yourself.  You
0101
 1   have it supplied to you by all parties, Exhibit 5.  And I would
 2   like to ask you if, if you took the time to actually find out
 3   where Ms. Meggs lived and where Ms. Varnadre lived as relates to
 4   this map to see if the map was correct?
 5   A.   No, sir, I personally did not.
 6   Q.   There is a process by which these people are supposed to
 7   have public input into this, this endeavor, that is, to produce
 8   a reliable environmental assessment.  And that process is
 9   through citizen participation, correct?
10   A.   That is correct.
11   Q.   Can you tell me, and we are restricted when we look at this
12   to look at the record of decision, as they say, or the
13   administrative record; you tell me, what is the administrative
14   record and where are their letters and their protest and
15   testimony that they made and hearings and other things; where is
16   that in the administrative record?  Do you know it is there or
17   not?
18   A.   The administrative record is the environmental document,
19   and there are letters from citizens in comment forms from
20   citizens from the public hearing included in the document that
21   include how many are for, how many were against, and all of
22   their reasons for either opposing or wanting the project.  And
23   there is responses given to those things as they are raised in
24   here.
25   Q.   May I ask you if that is quantified in any way in the
0102
 1   environmental assessment?
 2   A.   What do you mean?
 3   Q.   I mean, do you actually say, we have got 15 letters here,
 4   or 20 letters from property owners saying their land is flooding
 5   down there now and this can't help but exacerbate the problem?
 6   A.   There is a summary page included in the environmental
 7   document that quantifies the number of responses that were
 8   received by, for and against the project and for particular
 9   issues.
10   Q.   Now, how are they quantified?  For or against, or do they
11   really talk about the problem?
12   A.   No, there is a sort of a summary one that talks about for
13   and against.  And then in this particular document there is
14   quantification given, like how many comments were received about
15   drainage, how many comments were received about historical
16   concerns and such as that.
17   Q.   Do you consider that if a comment as received by drainage
18   it was saying drainage is terrible and you don't dare build this
19   road because I will be flooded out more than I was in the past?
20   Do you just assume that if they comment on drainage that it was
21   a negative comment?
22   A.   No.  We actually took what their comment was.
23   Q.   All right.  When you say we, who are you talking about?
24   A.   The Federal Highway Administration, as part of their review
25   of the document, looks at that.
0103
 1   Q.   Yes, ma'am.  But it didn't have anything to look at.  It
 2   had the summary, the compilation of what someone else down the
 3   line did.  That is to say -- help me through this Ms. Dimassimo,
 4   tell me, Moreland Altobelli prepared the document, correct?
 5   A.   Yes, sir.
 6   Q.   And Moreland Altobelli then sent it up to the DOT and this
 7   fella named Studstill, who is the environmental officer, he
 8   checks it off and says it is okay, and he sends it on to you.
 9   A.   We actually have the individual comments that were made in
10   the document.  So we didn't just rely on the summary.
11   Q.   Okay.  Do you have one from, do you have an individual
12   comment from Ms. Rivers?
13   A.   I don't know, sir.
14   Q.   Do you know of one from Ms. Varnadore?
15   A.   We have spoken to those individuals.  People in our staff
16   in the Federal Highway Administration Office who work under my
17   direction have spoken to all of the individuals, I believe, who
18   have testified here.
19   Q.   Yes, ma'am.  Did it find itself into the document itself,
20   which was to be reviewed and looked at, those comments, those
21   complaints, those statements to you as to what they were
22   concerned that they were going to do?  Did it find itself to
23   you, ma'am, and into that document?
24   A.   In the consideration that was given in this document to
25   those types of concerns that were raised, I would have to go
0104
 1   through here and look and see if they submitted comment forms
 2   that were included in here specifically.
 3        But the drainage concerns that were expressed by residents
 4   along Houston Road, the concerns for historic structures and the
 5   other concerns are all, they are in here.
 6   Q.   Yes, ma'am.  Except they say, and testified yesterday, that
 7   they called and even asked to speak to you, and they never got a
 8   call back.  That is correct, isn't it?  You didn't call
 9   anybody.
10   A.   I have not spoken to any -- well, other than in meetings in
11   our office.  There have been some individuals from CAUTION Macon
12   who have come to Atlanta and visited us in our office, and I
13   have met with some of those individuals.
14        But that is not unusual, sir.  I mean, we would normally
15   put them with the appropriate staff person who handles the
16   particular area of concern that they may be calling about.  It
17   is not unusual that they wouldn't always talk to me.
18   Q.   Tell us, if you can, Ms. Dimassimo, how a citizen has
19   access in some way to this document so they can find out if the
20   testimony they gave in a public hearing reached the document, or
21   whether their letter on behalf of them or others that went in
22   there was in the document, until the document is approved as a
23   fait accompli.  How does that work?
24   A.   When the environmental assessment is circulated, and when
25   the public hearing was held and those comments are taken in,
0105
 1   they do find out about the resolution of those comments.
 2   Sometimes it may be done, depends -- in this particular case,
 3   because some of the CAUTION Macon folks, Suzan Rivers, for
 4   instance, wrote us directly.  We may have responded to her
 5   directly, really, sort of outside the context of NEPA, but about
 6   some of the very concerns she expressed on this project.  But
 7   they find out about it when the FONSI as issued for public
 8   comment or public availability.  And all of the comments are in
 9   here, and they are either addressed or responded to in some
10   way.
11   Q.   Ms. Dimassimo, can you say all the comments are in there?
12   I mean, I submitted evidence yesterday where people, more than
13   one witness, which you heard, said, we couldn't get to the
14   document, we couldn't, we got no response, and we never heard
15   anything from what we sent off.
16        Now, does that indicate the process is flawed, or does it
17   mean that this particular document is just lacking, or is this a
18   procedure?
19   A.   I, the procedure is for, that we try to be responsive to
20   all the public comments that are received.  That doesn't
21   necessarily, obviously, always mean that we are able to respond
22   in a way that makes people happy, or that satisfies their
23   concern, necessarily.  It is the guarantee of access and the
24   guarantee to be heard and to be able to put your concern on the
25   table.
0106
 1   Q.   Did you hear the statement yesterday that there was a, a
 2   water hydrology, it was a hydrology study prepared by Tribble &
 3   Richardson, and it was supposed to be included in the
 4   environmental assessment, and they made numerous attempts to get
 5   that and were told they couldn't get it?
 6   A.   I heard that testified to.
 7   Q.   And are you, are you familiar with the fact that they said
 8   that study was important, because after the FONSI had issued,
 9   and after the environmental assessment had been approved,
10   someone in that study suggested that a different detention site
11   had to be built?
12        Does that bother you, in terms of what your recommendation
13   of no finding of significant impact is going to be on this
14   roadway; that this particular aspect of that document somehow
15   was ignored?
16   A.   I believe that based on the information that we were
17   presented; and I have not heard anything while I have been here
18   that would suggest to me that our decision should be different.
19   Q.   Ms. Dimassimo, do you want to hear it?
20   A.   Certainly, sir.
21   Q.   It is a lot of trouble, isn't it?
22   A.   No, sir.
23   Q.   Well, I am -- it seems to me -- well.
24        If you were willing to do the change on the historic
25   property, was there some element of the historic procedure that
0107
 1   caused you such great concern that you felt an addendum was
 2   important, when you could ignore these other things?
 3   A.   No, sir.
 4   Q.   Tell us how we deal with the addendum.  Is the addendum
 5   circulated for comment by numerous people?
 6   A.   It is not required to make a reevaluation publicly
 7   available, no.
 8   Q.   Okay.  If it is a reevaluation --
 9   A.   Or give a comment period, on it, whatever.
10   Q.   Is there a comment period?
11   A.   Not for reevaluation, no.
12   Q.   What is the addendum, a reevaluation or an addendum; does
13   it require a comment or not require a comment?
14   A.   It does not require a comment.
15   Q.   So it is purely an agency matter which the agency itself
16   can take into consideration, but no one else knows anything
17   about?
18   A.   What a reevaluation for us means, is that by going back and
19   looking at the action that we took, we still find it to be a
20   valid one.  In other words, the decision has not materially
21   changed.
22   Q.   That is, you don't make that determination.  The agency, I
23   mean, the Georgia DOT makes that determination, don't they?
24   A.   No.  The reevaluation is ours.
25   Q.   Is yours?
0108
 1   A.   Federal Highway Administration's.
 2   Q.   You don't have the study done.  You send it back to
 3   Moreland Altobelli.  Isn't that who did it?
 4   A.   Which study?
 5   Q.   The addendum, the --
 6   A.   All of the study is prepared by someone other than the
 7   Federal Highway Administration.
 8   Q.   Yes, ma'am.  So what we are talking about is, you become
 9   dissatisfied with it, you send it back to Moreland Altobelli,
10   they redo and look into the things and amend and change the
11   study, and they send it back up, and without a comment period
12   you stamp off on it, approved or not approved.  Correct?
13   A.   We were not dissatisfied with it.  There was a particular
14   issue raised on a particular historic structure which we must
15   address.  And we did so.
16   Q.   All right.  Let me follow this logically.
17        You had an EA which satisfied you about the historic
18   preservation.  Then you found information that indicated that
19   there was an omission serious enough to have an addendum and
20   slows this project down.  And the final -- I mean, it was in a
21   state of absolute limbo there while you were doing the
22   addendum.  It wasn't a final FONSI was it?  It wasn't a final
23   environmental assessment while that was going on, was it?
24   A.   While the reevaluation was being performed, there was no
25   further actions being taken on the project that was complete.
0109
 1   Q.   So we had something that extended the approval period while
 2   that addendum was going on.
 3   A.   That is just -- I don't understand exactly what you are
 4   trying to --
 5   Q.   Well, ma'am, I am just asking questions.  If you can just
 6   answer my questions, maybe we'll get there.
 7   A.   Yes, it extended it.
 8   Q.   It extended it.  Very well.
 9        Now, after it extended it and you got the report back, then
10   with no comment period to any one involved, CAUTION, any other
11   agency, you just approved it, and now that becomes the satisfied
12   amended EA and FONSI; is that correct?
13   A.   Again, what the reevaluation means is, that we find, based
14   on any additional information or, that we have received, or the
15   additional look that we have made at the document, that our
16   original decision remains valid.
17   Q.   That is your additional decision with information supplied
18   soley and completely from the source that didn't do an adequate
19   job before.
20   A.   The, again, let me state again; that the Heard School was
21   not overlooked when we prepared the environmental assessment.
22   The State Historic Preservation Officer made a determination, at
23   that point in time, that it was not eligible.  And it, I don't
24   want to say it is not unusual, but certainly making those kinds
25   of determinations, you know, it can, it can change like that.
0110
 1   But we did not find that it would have altered our original
 2   decision in any way.  That is why the reevaluation was
 3   approved.
 4   Q.   Ms. Dimassimo, do you know whether or not any new
 5   information was included in the addendum that hasn't been there
 6   before?
 7   A.   I'm not aware.
 8   Q.   Now, tell me if you can, if you relied on -- I think this
 9   is Government's Exhibit 5 -- and this map says that there is no
10   property in here that is affected in the flood plain area.  And
11   you have witnesses that get on the stand and say that is an
12   error.  And some of them say, I have sat in my basement, or
13   stood in my basement with water over my knees.  Does that bother
14   you in any terms of projecting the environmental consequences of
15   a five-lane road that is going to, as we, was shown by
16   Mr. Kulash, going to mean a very wide swath through this area
17   and going to change the topography of the land immensely and
18   create impervious surfaces all over the place?
19   A.   I certainly can appreciate the kinds of conditions that I
20   heard folks describe yesterday.  That they, and the problems
21   that they are having with flooding.  For this particular
22   project, though, we have to consider the impact of our project
23   within its scope.
24        And, in addition, this particular project included an
25   environmental mitigation commitment that this will be
0111
 1   implemented or will be, if the project is built through the
 2   construction contract; that the, it will not place any new storm
 3   water runoff on to adjacent properties.  But that there will be
 4   a drainage system constructed with the project that will handle
 5   the runoff from the project.
 6   Q.   Ms. Dimassimo, if you are going to make an undertaking like
 7   that, and give the assurance that this project will not
 8   exacerbate that problem at all -- did you make reference to
 9   Mr. Doug Hayes' chart where he showed where that flood plain
10   went, that was a little bit different from 5, if I remember,
11   from Defendant's Exhibit 5, and accounted for the fact that
12   there was a railroad embankment that served as a dam -- and
13   there were, this was affirmed in the Tribble/Richardson study as
14   well -- there were conduits that were too small for the flow of
15   the water.  Now, if you put all of those things together, is
16   there anything intellectually dishonest about determining that a
17   FONSI would issue?  That is, a Finding of No significant
18   Impact?  Aren't those two things mutually exclusive, ma'am?
19   A.   What two things?
20   Q.   The things that says, oh, we will undertake to make sure
21   there is no water problem from our five-laning this roadway, and
22   we will make sure that we will implement a plan that says that
23   the situation is not exacerbated but, nevertheless, we find this
24   project will not have any significant environmental impact.
25   A.   No, sir.
0112
 1   Q.   It is in the same category, I submit to you, Ms. Dimassimo,
 2   like saying that the historic preservation analysis was correct
 3   but we have to amend it.  And then we come in and say, oh, we
 4   are going to put this five-lane road in here, and we don't find
 5   there is any significant impact on it, but we are going to
 6   assure you that we are going to implement a plan which will
 7   absolutely assure that there is no flood water exacerbation down
 8   there.  Those things are not inconsistent to you?
 9   A.   With regard to the example you used of an addendum being
10   necessary for the historic site inventory; again, there can
11   always be cases where, despite a full and complete study,
12   something is overlooked.
13        What I feel assured by is that when the matter was brought
14   to you are attention, we fully and completely addressed it and
15   insured complete compliance with the law and regulation.
16   Q.   Does it bother you, Ms. Dimassimo, that what we feel
17   unassured by is the fact that there was no environmental impact
18   statement that would have been performed that could perhaps have
19   assured us that we would not have had to do an addendum; it
20   would been complete, total, and what they call here at the very
21   heart of the impact statement, a rigorously explored,
22   objectively evaluated, where all reasonable alternatives were
23   looked at?
24   A.   Again, we believe that the, our finding that this was a
25   document the level of an environmental assessment, and the
0113
 1   finding of no significant impact still is valid.
 2   Q.   Is it not a process from a procedural standpoint,
 3   Ms. Dimassimo, which is entirely ad hoc?  That is to say, you
 4   decide what you want to decide before you decide it, then you go
 5   ahead and make an argument which justifies it?  Isn't that the
 6   process here?
 7   A.   No, sir.
 8   Q.   May I ask you, while we are on that subject, how you deal
 9   with the air quality matter?
10        Now, finding of no significant impact means -- and English
11   is my native language -- finding of no significant impact -- is
12   not the air quality issue a matter of significance in terms of
13   the health, welfare and environmental quality of the Macon, Bibb
14   County area?
15   A.   The air quality issues were fully considered by all
16   applicable law and regulations as required.
17   Q.   I believe you heard the witness yesterday testify that
18   there are four elements to be considered.  And the only
19   analysis -- and she was a trained professional -- was the CO
20   analysis, carbon monoxide analysis?
21   A.   I can fully appreciate, because for the nine years that I
22   have been with the Federal Highway Administration, or almost
23   nine, I have worked extensively with the Clean Air Act and
24   conformity regulations, and am very familiar.  So I can fully
25   appreciate how confusing some of those requirements can be.
0114
 1   Because even for those of us who deal with them day in and day
 2   out, for the length of years that I have, since the Clean Air
 3   Act Amendments were passed in 1991, it can be confusing to those
 4   of us as well.
 5        The fact is, however, that the other three pollutants,
 6   other than the CO analysis that was performed and is properly in
 7   the document, the other three pollutants that were named by --
 8   and I don't remember the name -- the individual who testified
 9   the other day, that is just simply incorrect, sir.
10        That analysis was not required.  We are not in
11   nonattainment for any of those pollutants.
12   Q.   Now, let me just follow the logic of that just a minute.
13   And that is, unless it is already so polluted that it is in an
14   attainment, an environmental impact statement does not have to
15   look at it; is that what the logic is?
16   A.   No, we have no federal regulation or law by which to
17   require that there be an analysis of any of the other pollutants
18   that were named the other day.
19   Q.   Yet, ma'am, does it say in this regulation that if you find
20   as a regulation that requires it, then you will look at it, but
21   if you don't find the regulation requirement, then there is no
22   need to look at it?
23   A.   Sir, I just have no basis by which to require --
24   Q.   No, ma'am.  The health, the welfare and environment is what
25   you are supposed to be looking at in the, by federal mandate and
0115
 1   instruction.  And as an administrative officer to do that, your
 2   response is, well, it wasn't in an attainment area, therefore,
 3   we don't have to look at it; is that correct?
 4   A.   What I said to you was that I have no way, or the Federal
 5   Highway Administration does not have anyway to prescribe that
 6   such analysis be performed, since the federal regulation does
 7   not apply.
 8   Q.   What you would do, very easily, to have it done,
 9   Ms. Dimassimo, is to say, I, as a federal administrator, would
10   like a detailed and fully compliant environmental impact
11   statement.  And I would like for you to dwell on that bank of
12   fog that is coming down from Atlanta, Georgia, right down to
13   Bibb County.  And that environmental attainment area is 13
14   counties, isn't it, Ms. Dimassimo?
15   A.   It is currently 13 areas.
16   Q.   Yes, ma'am.  Did you, by chance, talk to Mr. Croy up in
17   Greta?  And say, Mr. Croy, you are an agency that has some
18   concern about transportation and environmental issues.  Do you
19   plan to look in on the Macon situation as a result of this road
20   building program and whether this is going to put us over the
21   attainment thing or not?
22   A.   It is my understanding that the Georgia Regional
23   Transportation Authority, was granted authority over all
24   nonattainment areas in Georgia.  Currently, that is Atlanta.
25   Q.   Yes, ma'am, it is 13 counties.  And do you know Mr. Croy,
0116
 1   by chance?
 2   A.   Yes, I do.
 3   Q.   And Mr. Croy has is not said, we won't come to Macon under
 4   the authority of GRETA and say that this transportation program
 5   has to comply with our requirements, has he?
 6   A.   Mr. Croy has not had any conversation with me about Macon.
 7   Q.   Well, do you know if he has had any conversation with the
 8   people at CAUTION?
 9   A.   No, sir.
10   Q.   Ms. Dimassimo, if the people at CAUTION go to Mr. Croy and
11   ask him what his assessment is about that, one might well ask,
12   how it is that the federal administrator here has no information
13   at all from the GRETA agency as to what their concern is.  And
14   GRETA did not comment on this at all, did it?
15   A.   Comment on --
16   Q.   Did not comment on the EA and the FONSI that was issued,
17   the comment period, the interdisciplinary approach, that place
18   where you are supposed to open your arms --
19   A.   GRETA did not comment on this document.
20   Q.   Yes, ma'am.  CAUTION does it, but you as a federal
21   administration do not do it?
22   A.   Do not do what?
23   Q.   Get a comment from GRETA?
24   A.   I don't know why they didn't comment, sir.
25   Q.   Because it wasn't required?
0117
 1   A.   I have no idea why they didn't comment, sir.
 2   Q.   Well, how about the concerns that were stated here about
 3   community input.  If the vast majority of people that dealt from
 4   CAUTION testified in a court of law that they didn't get any
 5   response from their federal agency; does that indicate to you
 6   that you are in compliance with what the law is?
 7   A.   I heard that yesterday.  And, certainly, that, it concerns
 8   me that they feel that way.  Especially when I know about the
 9   extent that the staff in the office went to.  Perhaps not always
10   to respond in writing.  Because we thought that we had
11   adequately addressed many of their concerns in face to face
12   meetings and in many, many telephone conversations with various
13   members of the CAUTION Macon group.  So I'm disappointed that,
14   you know, they don't feel like they were really heard.
15   Q.   All right.  Just let me touch a few things that occurred to
16   me.  And that is, are you aware of any plans to bring a rail
17   line to Macon, Georgia?
18   A.   Yes, sir.
19   Q.   Are you aware of any plans to do an intracity rail of any
20   sort?
21   A.   I am aware of all the plans for commuter rail that are
22   being discussed right now for Georgia, generally speaking.
23   Q.   You heard Mr. Kulash say, did you not, I mean, those would
24   be alternatives, wouldn't they?
25   A.   I do not see that as being an alternative to this
0118
 1   particular project and purpose and need that is expressed for
 2   this project.
 3   Q.   You heard Mr. Kulash talk about, and he did this graph in
 4   which he showed, you do the no-build and you say, oh, they can't
 5   consider the no-build because there are accidents out there.
 6   Then we go all the way to the full-build.  And he says there
 7   were alternatives here that could be done.  And you heard his
 8   testimony.
 9   A.   Right.
10   Q.   Did you think that was just absurd?
11   A.   No.  Not at all.  And in the document, while it was really
12   not put forward as an alternative, there was discussion about
13   the fact that a three-lane, on which has been discussed a couple
14   of times here, it was looked at.  But because of the nature of
15   both the right and left-turning movements, and the traffic
16   volumes that were predicted and the safety accident data, that a
17   three-lane simply still wouldn't do it.  So a five-lane, or
18   four-lane with the center turning lane was the appropriate
19   transportation solution.
20   Q.   Mr. Kulash dealt with that explicitly, Ms. Dimassimo, when
21   he said, what you would do, most of these accidents occurred
22   from rearend collisions where there was a car blocking the road
23   lane.
24   A.   Actually, what Mr. Kulash said was, that that cost benefit
25   diagram -- as I recall what he said -- was that that cost
0119
 1   benefit diagram that he had up there, that he wasn't speaking
 2   directly to this project, nor did he have all the information to
 3   speak directly to this project.  But that any concept for
 4   projects of this type, in this sort of a location, generally
 5   speaking, this was the analysis approach or methodology that he
 6   would apply.
 7   Q.   Yes, ma'am.  As a matter of fact, he said what you would do
 8   is tweak the three-lane, and you would put turn lanes to the
 9   left and right, clear the lanes so the people could go straight
10   through, and you could accomplish the whole purpose of 95
11   percent of it for one third the cost of what you would have to
12   do the whole thing, and that was never considered.  He said, I
13   don't make a judgment.  He said, all I know is that this statute
14   says you will rigorously consider alternatives and evaluate
15   them.  And he was talking being procedures, wasn't he?  The
16   procedures weren't followed.
17   A.   I didn't take that to be what he meant, no, sir.
18   Q.   And, as a matter of fact, Ms. Dimassimo, is it not the case
19   that Mr. Kulash, who was in fact asked to advise this Macon,
20   Bibb County Program himself, said that what Mr. Doug Hayes was,
21   had done on his chart, was a very significant and important
22   attempt to consider an alternative.  And that wasn't
23   considered?
24        This surface streets -- I look at it like a heart attack.
25   The main artery is blocked.  What do you do?  The ancillary
0120
 1   veins and arteries take over and supply blood to the heart.
 2   That is what Mr. Doug Hayes was suggesting, that is what Kulash
 3   was suggesting, and that never got considered.  Because you went
 4   from no-build to the full-build.
 5   A.   The alternative that was outlined by this gentleman
 6   yesterday was not considered, no.
 7   Q.   Okay.  And, as a matter of fact, what Mr. Kulash said is,
 8   three things.  He said, did you do a cost benefit analysis, that
 9   you should have done?  And the answer is no.  You didn't do a
10   cost benefit analysis, correct?
11   A.   Not of the sort that he outlined up there yesterday, no.
12   Q.   And he said you didn't do the, what I call the Doug Hayes
13   Plan where you develop the surface streets around; you didn't
14   consider that as an alternative.
15   A.   Sir, the alternatives that have been suggested here were
16   not alternatives that we examined, no.
17   Q.   And, finally, he said --
18   A.   In the way that they had been presented.
19   Q.   And finally, he said, when you put a hundred-foot
20   right-of-way in hilly terrain full of mature foliage and trees
21   like you have in Macon, Georgia, when you get through you are
22   going to have a swath cut through that has got to have some
23   environmental impact, and it needs to be considered as a matter
24   of procedures.  Isn't that what he said?
25   A.   I don't recall, sir.
0121
 1             MR. HUBERT:  That is all, your Honor.
 2             THE COURT:  Redirect.
 3             MR. ALMAND:  Your Honor, I have one or two questions.
 4   I will be very brief.
 5             THE COURT:  All right.
 6                          CROSS-EXAMINATION
 7   BY MR. ALMAND:
 8   Q.   Ms. Dimassimo, I have a very few questions.  There was one
 9   particular government regulation that was not discussed in your
10   direct or cross that I want to call your attention to.
11             MR. ALMAND:  Your Honor, that would be Exhibit 12 in
12   our notebook.
13   Q.   (BY MR. ALMAND)  I will show you a copy of what we had
14   marked as Exhibit 12 and ask you if you would identify that,
15   please?
16   A.   This is the FHWA, the acronym for Federal Highway
17   Administration.  This is our technical advisory for preparing
18   and processing environmental documents and Section 4 for
19   evaluations.
20   Q.   Explain briefly for the record, what is the purpose and how
21   is this document used?  What is the purpose of it?
22   A.   It is used just as it says.  It is guidance and technical
23   information about the sorts of information.  How we, in other
24   words, expect to actually write documents from the regulations,
25   the 23 CFR 771 regulations that tell us what kinds of
0122
 1   environmental documentation we have to do.
 2   Q.   All right.  And this is a document that is published and
 3   prepared by the Federal Highway Administration?
 4   A.   Yes, sir.
 5   Q.   All right.  Now, I would like to call your attention to
 6   that section of the document, it has got a Roman Numeral II, and
 7   called, environmental assessment EA?
 8   A.   Yes, sir.
 9   Q.   All right.  Just, it is a very short paragraph.  But I
10   think it would be helpful if you would just read that very short
11   paragraph.  Then I want to ask you a question about it.
12   A.   The very first one under environmental assessment?
13   Q.   Yes, ma'am.
14   A.   The primary purpose of an --
15             MR. HUBERT:  Excuse me, your Honor, I don't believe
16   that is what he meant.  I trust it is not because the document
17   is not in evidence.  I believe that he meant, correct me if I'm
18   not right, you want her to read to it herself and then testify.
19             MR. ALMAND:  May it please the court, I will tender
20   this document at this time.  Plaintiffs' Exhibit 12, as has been
21   identified by the witness.
22             THE COURT:  All right.
23             MR. HUBERT:  Your Honor, I would, the document
24   purports to be a technical advisory document.  I don't know when
25   it was in effect or how it was in effect, and there hasn't been
0123
 1   a sufficient foundation laid for it now.  I would object to it.
 2             THE COURT:  Objection overruled.
 3   Q.   (BY MR. ALMAND)  Now, Ms. Dimassimo, would you just -- it
 4   is a very short paragraph -- read it allowed, please, because I
 5   want to then ask you questions.
 6   A.   Okay.  The primary purpose of the EA is to help the FHWA
 7   decide whether or not an EIS is needed.  Therefore, the
 8   environmental, the EA should address only those resources or
 9   features which the FHWA decides would have a likelihood for
10   being significantly impacted.  The EA should be a concise
11   document and should not contain long descriptions or detailed
12   information which may have been gathered, or analysis which may
13   have been conducted for the proposed action.
14        Although the regulations do not set page limits, CEQ
15   recommends the length of EAs usually less than 15 pages.  To
16   minimize volume the EA should use good quality maps and exhibits
17   and incorporate by reference and summarize background data and
18   technical analysis to support the concise discussions of the
19   alternatives and their impacts.
20   Q.   Now, taking that into consideration, Ms. Dimassimo, would
21   you tell the court, in plain language, what is the difference
22   between an EA and an EIS and the purpose they serve?
23   A.   An environmental assessment is to look at, one, if we don't
24   know what the impacts are, or, if it is a project, and we need
25   to determine what they are so we will know what sort of document
0124
 1   to move forward with, whether it be an EIS, or it is for
 2   projects that don't qualify as categorical exclusions of some
 3   sort.  But through the EA process and through the look at it
 4   that is described here in this document, we determine that in
 5   fact there are no findings, there is not a finding of
 6   significant impact, and we move forward with the FONSI.
 7   Q.   All right.  Now, on the other hand, what is an EIS,
 8   environmental impact statement?
 9   A.   As a matter of fact, it talks in our regulations about some
10   examples of, under 23 CFR 771, about the types of things that
11   would constitute an environmental impact statement.  And they
12   are major projects, usually on new location, that have
13   significant environmental impacts of usually of many different
14   sorts.
15   Q.   Would you describe the degree of detail that is required in
16   an EA as compared to an EIS?
17   A.   An EIS contains -- I believe, as I was questioned earlier,
18   from the very start there is not a significant amount of
19   difference in the breath of things that you look at for an EA
20   versus EIS.  You still go through and look at all the same sort
21   of things, historic structures, wetlands all those resource that
22   may be impacted.  And through that, determine whether or not you
23   are having a significant impact.  And that is really when the
24   change occurs.  In the level of documentation of the document,
25   it becomes much more detailed when one finds that you have got a
0125
 1   lot of impacts across the board over a variety of resources in a
 2   project of large magnitude.
 3   Q.   So in other words, you use and EIS when --
 4             MR. HUBERT:  Excuse me, your Honor, I don't think it
 5   is, I don't think it is proper, on direct examination to say --
 6             THE COURT:  Don't summarize the testimony.
 7             MR. ALMAND:  All right.  I did not put her up as a
 8   direct witness for me, your Honor.  I believe I have her on
 9   cross.
10             MR. HUBERT:  Your Honor, she is a defendant.
11             THE COURT:  I think, I think Mr. Almand, that she, I
12   don't believe you have a right to cross because --
13             MR. ALMAND:  I will rephrase the question, your Honor.
14   Q.   (BY MR. ALMAND)  Then in terms of identification of a
15   significant environmental impact; once that is done, what must
16   you do?
17   A.   We move forward with the very detailed studies, a much
18   more, the alternative analysis becomes, must include all
19   reasonable alternatives, et cetera, from that point forward.
20   Q.   All right.  I heard Mr. Hubert use the term, a hard look
21   and rigorous examination.  Now, that language is used for an EIS
22   rather than an EA, isn't it?
23   A.   That is the language from the counsel on environmental
24   quality regulations that are the basis for our own regulations.
25   That language is not used in conjunction, really, with an EA in
0126
 1   our own regulations that talk about how to, what constitutes an
 2   EA, nor in the technical advisory that describes how the
 3   document actually is prepared.
 4   Q.   All right.  Now, one final question.  And would you turn to
 5   the next page of Exhibit 12, which is Roman Numeral II,
 6   Subsection C, called, alternatives.  And just to keep it short,
 7   would you just read the last sentence of that.
 8   A.   The EA does not need to evaluate in detail all reasonable
 9   alternatives for the project and may be prepared for one or more
10   build alternatives.
11   Q.   Now, would you explain the meaning of that, as that is used
12   in this particular memorandum.
13   A.   Exactly what it says, sir.  It doesn't have to evaluate any
14   more alternatives than a build and a no-build.
15   Q.   Okay.
16             MR. ALMAND:  I have nothing further to ask, your
17   Honor.
18             THE COURT:  All right.
19             MR. THOMASON:  Briefly.
20                         REDIRECT EXAMINATION
21   BY MR. THOMASON:
22   Q.   Ms. Dimassimo, can you tell me, please, the effective date
23   of the final agency action on the environmental document on
24   Houston Road?
25   A.   August 17, 1998.
0127
 1   Q.   And can you tell me when the Georgia Regional
 2   Transportation Authority came into existence?
 3   A.   Since last year.  I don't recall the exact date.
 4   Q.   Was it created by statute of the general assembly after the
 5   document --
 6   A.   After this date, yes, sir.
 7   Q.   Okay.  Thank you.
 8             MR. THOMASON:  And for your Honor's, as a courtesy to
 9   your Honor, the classification of actions to which Ms. Dimassimo
10   referred can be found at 23 --
11             MR. HUBERT:  Your Honor, I don't believe this is
12   appropriate testimony.  He is connecting up the testimony -- I
13   mean, he is testifying.  He is connecting up some document with
14   the testimony.  Sure, that is argument.
15             MR. THOMASON:  I'm trying to give you a citation.
16             THE COURT:  Go head.  Let me hear what Mr. Thomason
17   has to say.
18             MR. THOMASON:  I was saying, as a courtesy to the
19   court, the section to which she referred, without citation, can
20   be found at 23 Code of Federal Regulations, Section 771.115.
21             MR. HUBERT:  I still object, your Honor.  That is
22   tying this witness' testimony to a statute, and that is reserved
23   for closing argument.  It is just a comment made under the guise
24   of being a courtesy to the court.  I object to it, as a courtesy
25   to the court.
0128
 1             THE COURT:  Anything further from the witness?
 2             MR. THOMASON:  I have nothing further.
 3             MR. HUBERT:  Just one question before you get down
 4   please, ma'am.
 5                         RECROSS-EXAMINATION
 6   BY MR. HUBERT:
 7   Q.   Well, first of all, is the environmental assessment an
 8   ongoing document, that is to say, it exists beyond the time that
 9   it is, quote, accepted, and new information is taken into
10   consideration, is it not?
11   A.   If it were, if some new information were discovered.  For
12   example, when you were out there on construction and something
13   were discovered, you would go back and --
14   Q.   That is exactly the point that you made about the addendum,
15   correct?
16   A.   Yes, sir.
17   Q.   Okay.  And if GRETA came into existence while you were
18   considering the addendum, you wouldn't consider going over and
19   asking what their opinion was, in terms of a comment about air,
20   water quality or any of these other items?  That wouldn't be
21   something that you would do as a matter of routine circulation
22   of an amended or environmental assessment?
23   A.   No, sir.  Especially not from one in this area.  At this
24   point in time GRETA has no authority over the Macon area.
25             MR. HUBERT:  That is all, your Honor.
0129
 1             THE COURT:  You may go down.  Anything further?
 2             MR. THOMASON:  Just while she is up there, the
 3   government had marked for identification eight exhibits, 1
 4   through 8, and then 7-A, which, and I would move all their
 5   admission.
 6             THE COURT:  All right.
 7             MR. HUBERT:  Your Honor, I don't believe all of them
 8   were identified.  Seven and 7-A were identified, your Honor.  I
 9   stated my objection to that.  Document No. 6 --
10             THE COURT:  Let's go one by one.  All right.
11   Defendants' Exhibit 1.  Well -- it begins with a letter.  One is
12   in evidence already.  Two, is that in evidence?
13             THE CLERK:  Yes.
14             THE COURT:  Two is in evidence already.  Defendants'
15   3.
16             THE CLERK:  I'm not sure about that one, judge.
17             THE COURT:  Letter to Mr. Studstill from Mr. Luce.
18             MR. THOMASON:  I believe -- I will withdraw that one.
19             THE COURT:  All right, three has been withdrawn.  Four
20   is put in evidence yesterday by Mr. Hubert.
21             MR. HUBERT:  Yes, sir.
22             THE COURT:  Four is in evidence.  Five is the drainage
23   map.  I believe it is in evidence.
24             MR. HUBERT:  I'm not sure of that, judge, I'm sorry.
25   May I inquire.  Is five in evidence, please, ma'am?
0130
 1             THE CLERK:  I show it was.
 2             MR. HUBERT:  Very well.  I accept the record, your
 3   Honor.  I just had no recollection of it being admitted.
 4             THE COURT:  All right.  What about 6?
 5             MR. THOMASON:  Six is the statute, sir.
 6             MR. HUBERT:  Six is the statute, your Honor, and I
 7   object to that.  That is just, I mean, I'm glad to have it and
 8   I'm sure the court is, but this is just law, statement of law.
 9   Got no basis in evidence at all.
10             MR. THOMASON:  We withdraw it.
11             THE COURT:  Okay.  Six has been withdrawn.  Seven is
12   this -- all right, now, there is a 7 and a 7-A.  Where is 7-A?
13   That is the one that has the --
14             MR. HUBERT:  Certification.
15             MR. THOMASON:  That is a certified copy of the
16   judgment.
17             THE COURT:  All right.  Let me see 7-A.  I haven't
18   seen it.  All right.  So what you, you are tendering 7 and 7-A
19   because, well, 7-A would take the place of the uncertified copy.
20             MR. THOMASON:  Or just let me substitute a certified
21   copy of the judgment, if you don't mind.
22             THE COURT:  All right.  Okay.
23             MR. HUBERT: I am willing to redact 7 and put it 7-A,
24   or not, and call it the 7-7-A document, your Honor, to satisfy
25   the certification problem.  But I would still object.
0131
 1             THE COURT:  Okay.  Now --
 2             MR. THOMASON:  And 8 was the planning regs.
 3             THE COURT:  Well, 7-A, the order of the court has been
 4   cured by certified copy.  The first part of 7 -- is that now
 5   7-A?
 6             MR. THOMASON:  It is 7.
 7             THE COURT:  All right.  Seven, the federal aid
 8   right-of-way certification, is that still objected to?
 9             MR. HUBERT:  Yes, sir.  It is objected to as
10   unauthenticated, unsigned.  Has no seal on it.  No official
11   certification whatsoever.  And it is a hearsay document.
12             THE COURT:  You wish to comment?
13             MR. THOMASON:  Ms. Dimassimo identified that as the
14   federal aid right-of-way certification that we, form that we
15   routinely use and was received in the course of the,
16   establishing if status of the right-of-way for Houston Road.
17             THE COURT:  Objection overruled, it is admitted.
18             Now, this is not stapled together.  Is there an 8?
19             MR. HUBERT:  There is an 8, and we object to it, your
20   Honor, the Register.
21             MR. THOMASON:  We withdraw it.  It is just law.
22             THE COURT:  Withdrawn.  Are there any others?
23             MR. THOMASON:  No, sir.
24             THE COURT:  Okay.  You may go down.
25             All right.  You have other witnesses?
0132
 1             MR. THOMASON:  No, sir, none from the state.
 2             MS. BRAKEFIELD:  Is it my turn, your Honor?
 3             THE COURT:  It is your turn.
 4             MS. BRAKEFIELD:  Your Honor, the State of Georgia
 5   Department of Transportation would call Mr. Tom Turner to the
 6   stand.
 7             THE COURT:  Okay.  We are going the take a break.  Let
 8   me make an observation.  How many more witnesses are there?
 9             MS. BRAKEFIELD:  Your Honor, I have no more witnesses,
10   and I expect this witness' direct to take five minutes or less,
11   of my questions.
12             THE COURT:  Okay.  Mr. Almand.
13             MR. ALMAND:  I have, I believe, three, your Honor.
14             THE COURT:  We can do one of two things, stay here
15   tonight or come back in the morning.  We are going to do one or
16   the other because I have got a full day on Monday.
17             MR. ALMAND:  Your Honor, I have witnesses from
18   Atlanta.  I would just as soon stay here tonight, if that is
19   okay with the court.
20             THE COURT:  Okay.
21                               (Recess)
22             THE COURT:  All right.  Are we ready to proceed?
23
24                           THOMAS L. TURNER,
25   having been first duly sworn, was examined and testified as
0133
 1   follows:
 2                          DIRECT EXAMINATION
 3   BY MS. BRAKEFIELD:
 4   Q.   Would you please state your name, for the record, please
 5   and tell the court with whom you are employed Mr. Turner?
 6   A.   My name is Thomas L. Turner.  I am employed by the Georgia
 7   Department of Transportation.
 8   Q.   How long have you been employed by the Georgia Department
 9   of Transportation?
10   A.   A little over 26 years.
11   Q.   What is your current position at the department?
12   A.   Director of preconstruction.
13   Q.   And how long have you held that position?
14   A.   Since November 1 of 1999.
15   Q.   And prior to that time, what was your most recent position
16   at the department?
17   A.   Director of construction.
18   Q.   During what period did you hold that title?
19   A.   From November 1, 1998 to November 1, 1999.
20   Q.   So during the period of September 1999 you were the
21   director of construction?
22   A.   That is correct.
23   Q.   And in that position, are you aware of the processes and
24   procedures for a contract that is known as the Houston Road
25   Widening Project, which has been the subject of this litigation
0134
 1   that you have heard about during this week?
 2   A.   Yes, I am.
 3   Q.   Okay.  Can you tell me whether or not the Georgia
 4   Department of Transportation has let that contract to a private
 5   contractor?
 6   A.   Yes.  That contract was let on September 17, 1999.
 7   Q.   And can you explain to the court what we mean by the word,
 8   let?
 9   A.   Letting is the public receipt of bids and opening of bids.
10   The bid opening was on September 17, 1999.
11   Q.   What happened after those bids were opened?
12   A.   After the bids were opened, they were looked, they were
13   reviewed for correctness to make sure everything is in order.
14   And that being the case, and if the bid is the low bid, a proper
15   bid, it is an awardable bid; by that I mean that the price is
16   acceptable to the State of Georgia, then an award would be made.
17   Q.   And were all of those procedures followed for the Houston
18   Road widening contract?
19   A.   That is correct.
20   Q.   And what was the date that the public announcement of award
21   was made?
22   A.   The award was publicly announced on September 24, 1999.
23   Q.   Mr. Turner, let me ask you if you have with you on the
24   witness stand, a copy of the Georgia Department of
25   Transportation Standard Specifications for the Construction of
0135
 1   Roads and Bridges?
 2   A.   Yes, I do.
 3   Q.   Okay.  I'm going to hand you a document that has been
 4   marked Defendant Georgia Department of Transportation No. 1 and
 5   ask you to identify that document, please.
 6   A.   This is a copy of an excerpt from the Georgia Department of
 7   Transportation State of Georgia Standard Sepcification
 8   Construction of Roads and Bridges, 1993 edition.
 9   Q.   What subject does that, how many pages is that document,
10   Mr. Turner?
11   A.   Page 81, 82 and 83.
12   Q.   With what subject does that portion of the specifications
13   deal?
14   A.   Section 109, termination clause.
15   Q.   And let me ask you, were the court in this case to decide
16   to grant the plaintiffs' motion for preliminary injunction, is
17   it possible that that clause could be implicated?
18             MR. HUBERT:  Excuse me, your Honor, I object to that.
19   The possibility does not admit of an answer that will carry any
20   probative weight in a court of law.  The question is speculative
21   and the question asks that this witness conject about something
22   that happened in the future.  I object to it.
23             MS. BRAKEFIELD:  Your Honor, my question goes to the
24   third prong of the test for preliminary injunction, which is the
25   harm to the defendant, if an injunction is awarded.
0136
 1             THE COURT:  Objection overruled.
 2             MS. BRAKEFIELD:  Thank you, your Honor.
 3   Q.   (BY MS. BRAKEFIELD)  Mr. Turner, do you recall the
 4   question?
 5   A.   This provision applies to the termination of a contract in
 6   the event of a work stoppage.
 7   Q.   And is one of the -- I would ask you to look at the second
 8   page of the document, page 82, and refer to paragraph A-3.  Do
 9   you see that section?
10   A.   Yes, I do.
11   Q.   What is one of the, what does that section refer to in the
12   way of a work stoppage?
13   A.   This particular provision applies to an injunction that
14   would be imposed by a court of competent jurisdiction.  Which
15   stops the contractor.
16   Q.   Okay.  And then what does Subsection B deal with in this
17   section of the contract?
18   A.   Section B applies to the implementation of such a
19   provision, and addresses the compensation and the other
20   provisions of the work stoppage and establishes the liability
21   for the parties.
22   Q.   Has it been your --
23             MR. HUBERT:  Your Honor, that states a legal
24   conclusion as to establishing liability, and I move to strike
25   that portion of the answer.  This witness is not competent to
0137
 1   testify what the liability could be established.  That is for
 2   the court to do.
 3             MS. BRAKEFIELD:  Your Honor, this witness has
 4   testified that he was, at the time, the director of
 5   construction, and this is his contract.  It is up to him as a
 6   party to the contract to implement it, and I think he is
 7   competent to testify.
 8             THE COURT:  Objection overruled.
 9             MS. BRAKEFIELD:  Thank you, your Honor.
10   Q.   (BY MS. BRAKEFIELD)  Do you recall the question?  Have
11   you -- well, maybe I hadn't gotten it out yet.
12        My question was about to be:  In your experience in the
13   construction division of the Georgia Department of
14   Transportation, have you ever been in a position to have to
15   implement Subsection B of this section of the contract as a
16   result of a court imposed injunction?
17   A.   Yes, I have.
18   Q.   And can you tell us, in your experience, what has been the
19   result of such an implementation?
20             MR. HUBERT:  Your Honor, that would be objectionable
21   on the basis of them, an example offered into court, and it is
22   irrelevant and immaterial as to what could happen in this case.
23   I object to his offering a conclusion, and a legal conclusion
24   about that issue.
25             MS. BRAKEFIELD:  I withdraw the question and rephrase.
0138
 1             THE COURT:  All right.
 2   Q.   (BY MS. BRAKEFIELD)  Mr. Turner, did that occasion lead to
 3   the department having to make payment for a contractor for work
 4   stoppage?
 5             MR. HUBERT:  Object to that as a leading question,
 6   your Honor.  The question is what happened in that case.  Not,
 7   is that a case where they had to make payments.
 8             MS. BRAKEFIELD:  I don't believe I suggested what the
 9   answer should be, but I will ask him.
10   Q.   (BY MS. BRAKEFIELD)  What happened in that instance,
11   Mr. Turner?
12   A.   In that incident and in other similar situations, it has
13   always been a situation where compensation was due to the
14   contractor for a number of items that are compensable.
15        There is disruption to the overall contract.  And it
16   depends on, really, how the situation plays out.  If it is on a
17   daily basis, there is daily delay costs, there is overhead,
18   project management material, mobilization.  The various fixed
19   costs that have to be recovered by the contractor.  And, really,
20   what our experience has been is, that it also leads to contract
21   claims beyond those that are allowed by the contract.
22             MR. HUBERT:  Move to strike that, your Honor.  His
23   experience in other cases would not be relevant in this case.
24             THE COURT:  Objection overruled.
25             MS. BRAKEFIELD:  Thank you, your Honor.
0139
 1   Q.   (BY MS. BRAKEFIELD)  Were you finished, Mr. Turner, with
 2   that statement?
 3   A.   I believe so.
 4   Q.   Okay.  And my final question, Mr. Turner is, has the work
 5   begun on the widening of Houston Road as we are in the court
 6   here today?
 7   A.   Yes, ma'am, the work is under way.
 8             MS. BRAKEFIELD:  Thank you, your Honor.  No further
 9   questions.
10                          CROSS-EXAMINATION
11   BY MR. HUBERT:
12   Q.   Mr. Turner, as a matter of fact, Mr. Turner, the contract
13   was not signed until after this suit was filed by the department
14   of transportation.  And that is the case, isn't it?
15   A.   I'm not sure of the signing date.
16   Q.   Well, you know that the let date is not the date that the
17   state is bound, correct?
18   A.   Correct.
19   Q.   And you know that the contract has to be approved, and, as
20   a matter of fact, in this case, there was an advertisement that
21   was erroneous, about being able to inspect the plans for this
22   highway.  There was, they were, you put forth an advertisement
23   in 1999, Mr. Turner, that said that this project could be
24   inspected at 2 Capitol Square, and no such plans existed at 2
25   Capitol Square.  And that is the case --
0140
 1             MS. BRAKEFIELD:  Your Honor, I object to this.  I
 2   think this is outside the scope of direct.
 3             THE COURT:  Well, it is testifying.  I mean, if you
 4   want to take the stand and take the oath, I will be glad to let
 5   you testify, but you are testifying.
 6             MR. HUBERT:  Judge, I'm asking him a question --
 7             THE COURT:  No you are not, you are testifying.
 8             MR. HUBERT:  Well, if the court typifies it that way,
 9   but as I know a cross-examination question, that was one.  And
10   if the court is going to restrict me in my cross-examination,
11   very well, I will just raise that issue on a constitutional
12   basis.
13             THE COURT:  Well, you raise whatever issue you want to
14   raise, but I'm not going to let you testify unless you take the
15   stand.  You understand that, Mr. Hubert?  Now.  Let's move on.
16   Q.   (BY MR. HUBERT)  Just tell me, Mr. Turner, was an
17   advertisement issued that misdescribed where the plans were?
18             MS. BRAKEFIELD:  Your Honor, I object again.  This is
19   outside the scope of the direct examination.
20             MR. HUBERT:  Your Honor, I'm not restricted to a
21   direct examination scope, the first time I cross-examine.
22             THE COURT:  Well, yes, your are.  But I'm going to
23   broaden it because I think it is a fair question.  Objection
24   overruled.
25   Q.   (BY MR. HUBERT)  Do you know of that, sir?
0141
 1   A.   I'm not aware of that.
 2   Q.   Do you know whether or not they had to readvertise the
 3   place where citizens could go and look and see the plans to see
 4   what was to be built on the Houston Road Project?
 5   A.   No, sir, I'm not aware of that.
 6   Q.   Do you know if there were any other flaws about the
 7   awarding of this contract that might make the bid an improper
 8   one, sir?
 9   A.   No, sir, I'm not aware of any.  I don't believe the bid
10   would have been awarded if that would have been the case.
11   Q.   Do you know whether or not the right-of-way to build this
12   road has been attained to the fullest extent necessary to build
13   the road?  Do you know that, sir?
14   A.   What I know is, that prior to each letting, that there is
15   a, is what is called a let status meeting.  It is a monthly
16   meeting we routinely hold and review every project.  I don't
17   have a specific recollection of this one back in September.
18   There was no event or anything to make it peculiar that I would
19   remember it.
20        But if there are any things that are lacking from that
21   checklist at the time of the let status meeting, we will defer,
22   withdraw, postpone, whatever measures are necessary, rather than
23   go ahead with the letting of the project.
24   Q.   There was no information on your part, when you went to
25   bid, that CAUTION Macon was contesting this road project and had
0142
 1   written what is called an ad litem notice, both to the county
 2   and state with whom you were cooperating in this case, and told
 3   them, if you bring this case, I mean, if you continue with this
 4   project you are going to be confronted with a lawsuit?
 5   A.   No, sir, I was not aware of that.
 6   Q.   You were not aware of that, sir.  Can you tell me, sir,
 7   after you, after you opened the bid and after you examined the
 8   bid to see and do this other investigatory work to see if it is
 9   all appropriate to accept the bid, then there is a period of
10   time when the board and Mr. Shakelford actually signs off on the
11   contract; is that right?
12   A.   The board does not participate in that process.
13   Q.   Okay.  But Mr. Shakelford signs off on it.
14   A.   The Commissioner, Wayne Shakelford, does sign contracts.
15   Q.   All right.  Can you tell the court when Mr. Shakelford
16   signed off on this contract?
17   A.   No, sir, I do not.
18   Q.   And you don't have the contract in court.
19   A.   No, sir, I do not have it with me.
20   Q.   So when you say that this contract subjects you to
21   liability, Mr. Turner, you are unaware, as a matter of fact,
22   that the contract is even validly signed.
23   A.   No, sir, I am aware that the contract is signed.
24   Q.   Tell me how you are aware of that.
25   A.   I'm very confident that the process wouldn't have gone
0143
 1   forward without a signed contract.
 2   Q.   That is an assumption on your part, Mr. Turner, is it not?
 3   A.   Yes, sir, I guess it would be.
 4   Q.   Don't have the contract in court, correct?
 5   A.   I do not have the contract.
 6   Q.   And you have never held in your hands a copy of the
 7   contract that has Mr. Wayne Shakelford's signature on it, have
 8   you?
 9   A.   No, sir, I do not routinely do that.
10   Q.   I understand.  So when you say that this contract subjects
11   you to liability, that testimony is based on the assumption that
12   the bid is proper, that the let was proper, that the contract
13   has been signed and it is a valid contract and enforceable in
14   all respects.  That is what the assumption is for your testimony
15   today, is it not?
16   A.   That is correct.
17   Q.   Thank you, sir.
18                         REDIRECT EXAMINATION
19   BY MS. BRAKEFIELD:
20   Q.   Mr. Turner, do you have any reason to believe that there is
21   anything improper, or not having been done with regard to the
22   letting and execution and carrying out of this contract?
23   A.   No, I do not.
24             MS. BRAKEFIELD:  Thank you.  Nothing further
25                         RECROSS-EXAMINATION
0144
 1   BY MR. HUBERT:
 2   Q.   One question.  Mr. Turner, I just asked you about the
 3   advertisement that was incorrect and had to be redone.  You said
 4   you didn't know anything about that.  The mere fact that I am
 5   asserting that in a question to you doesn't raise any issue with
 6   you at all?
 7   A.   I don't have any recollection of it.
 8   Q.   You have a recollection of my asking you just a moment
 9   ago.
10   A.   Yes, sir, I remember the question.
11   Q.   Yes, sir.  Does that cause you to be concerned at all about
12   your testimony, sir?
13   A.   I don't think so, no.
14   Q.   Very well.  Thank you.
15             THE COURT:  You may go down.
16             MS. BRAKEFIELD:  Georgia Department of Transportation
17   rests, your Honor.  I'm sorry, I did forget to ask to admit that
18   document.  I would tender the document into evidence at this
19   time.
20             THE COURT:  Mr. Hubert, have you seen it?
21             MR. HUBERT:  It is not part of the contract, your
22   Honor.  Technically, I would have to object to it.  It is a
23   random piece of paper out of a termination by the department of
24   transportation, and for the record, we would object.
25             MS. BRAKEFIELD:  Your Honor, if Mr. Hubert would like,
0145
 1   I would be happy to submit the entire book.  I did that for
 2   convenience of all parties.
 3             MR. HUBERT:  It is not necessary, your Honor.  The
 4   book is not necessary.  That is not the basis of my objection.
 5             The basis of my objection is, the contract is not
 6   here.  This is a random spec and regulation which everybody
 7   assumes is in the contract.  We don't know that and can't know
 8   it.  It is irrelevant and immaterial.
 9             THE COURT:  Objection overruled.  I will give you, she
10   offered to bring the book.  If you don't want the book, I'm
11   going to admit this.  Okay.  Mr. Almand.
12             MR. ALMAND:  Ready.  I call James Evans.
13
14                         JAMES HAMILTON EVANS,
15   having been first duly sworn, was examined and testified as
16   follows:
17                          DIRECT EXAMINATION
18   BY MR. ALMAND:
19   Q.   State your fume name and spell it, please?
20   A.   James Hamilton Evans, E-V-A-N-S.
21   Q.   All right.  Mr. Evans, what is your profession?
22   A.   I'm a transportation engineer planner and consultant with
23   PBS&J.
24   Q.   What is PBS&J?
25   A.   An engineering planning architectural consulting firm,
0146
 1   private firm.
 2   Q.   Is that also known as Post-Buckley?
 3   A.   Yes, it is also known as Post, Buckley, Schuh & Jernigan.
 4   We have officially changed our name to PBS&J.
 5   Q.   Okay.  Now, Mr. Evans, would you give the court the benefit
 6   of your background, please, sir, in terms of your training or
 7   education, first, that would, that you have had in the field and
 8   study of your specialty?
 9   A.   I have a Bachelors Degree in Civil Engineering from Georgia
10   Institute of Technology.  I have a Masters in Transportation
11   Planning from Georgia Tech, also.  I have 30 years of experience
12   in the field of transportation engineering, transportation
13   planning, working for Georgia Department of Transportation for
14   five years.
15        And then since that, since leaving the department, working
16   as a private consultant for various groups, our organizations
17   for about, I guess, now, 27 years.
18   Q.   Just very briefly, would you explain to the court what are
19   the functions or responsibilities of a traffic engineer
20   planner.  What do you do?
21   A.   We do a number of functions.  One of the functions is to
22   project future traffic volumes on facilities within urbanized
23   areas or rural areas to make estimates of future traffic
24   volumes, including peak hour design volumes, or what are called
25   design hourly volumes so that we can, or give that information
0147
 1   to the highway designers to actually design the roadway.
 2        We also do operational analysis to determine what the level
 3   of service for various improvement alternatives would be.  We
 4   look at the, in terms of long range planning, 20, 25-year, what
 5   are the transportation improvement needs of the whole region,
 6   for regions such as Macon, Bibb County, the Atlanta metropolitan
 7   area, and as small counties by themselves or cities.
 8        It is a fairly broad, if you will, area of expertise.  And
 9   it involves a large number of activities which I have briefly
10   described.
11   Q.   All right.
12             MR. ALMAND:  Your Honor --
13   Q.   (BY MR. ALMAND)  Let me show you what we have marked as
14   Plaintiffs' Exhibit 2.
15             MR. HUBERT:  Plaintiffs --
16             MR. ALMAND:  Excuse me, Defendants' 2, Macon, Bibb
17   County.
18   Q.   (BY MR. ALMAND)  Would you examine that, please, sir?
19   A.   Yes, sir.
20   Q.   What is that?
21   A.   That is a resume of, for myself.  Identifying my experience
22   over the past 32 years. Or at least highlights some of that
23   experience.
24             MR. ALMAND:  Your Honor, I would tender Defendants'
25   Exhibit 2 or Defendants' Exhibit Macon, Bibb County Exhibit 2 at
0148
 1   this time, rather than going through all of that in detail, and
 2   have provided copies to Mr. Hubert.
 3             MR. HUBERT:  No objections, your Honor.
 4             THE COURT:  All right.  It is admitted.
 5             MR. ALMAND:  Your Honor, I would submit and tender
 6   Mr. Evans as an expert in the field of transportation planning
 7   and transportation engineering and all that goes with that
 8   particular list.
 9             THE COURT:  Mr. Hubert.
10             MR. HUBERT:  No objections, your Honor.
11             THE COURT:  All right, he is so qualified.
12   Q.   (BY MR. ALMAND)  All right.  Now, Mr. Evans, what I'm going
13   to do is shorten considerably the testimony that we have
14   previously planned.  So if you have trouble following me, please
15   let me know.
16   A.   Okay.
17   Q.   First, let me ask you, were you engaged to perform work in
18   regards to the Houston Road improvements?
19   A.   Yes, sir.
20   Q.   And who were you employed by?
21   A.   I was employed by the Macon, Bibb County Road Improvement
22   Program.
23   Q.   All right.  And what was the charge that was given to you?
24   What were you employed to do?
25   A.   To estimate the future traffic volumes on Houston Road from
0149
 1   Sardis Church up to State Route 247.  And to also provide
 2   estimates of some peak hour volumes.
 3   Q.   All right.  And in regards to your testimony here today;
 4   were you also asked by me to do certain analyses?
 5   A.   Yes.  You asked me to look at the accident history, or the
 6   recent accident history on Houston Road.  And to indicate
 7   whether or not, or based on my experience, whether or not that
 8   was a high accident rate, or what would one consider average or
 9   below average.
10   Q.   Were you also asked to look at various alternative
11   solutions or to a particular choice to be made by the road
12   improvement program?
13   A.   Yes.  I have also reviewed some various alternatives that
14   had been proposed by others, that I looked at in terms of
15   review.
16   Q.   Including those that were submitted by Mr. Douglas Hayes
17   sitting here?
18   A.   Yes.
19   Q.   Okay.  Now, first, what I would like to do is, in terms of
20   the Houston Road Project, what was the object and purpose of
21   this?  What was the necessity for doing the work that was to be
22   done?
23   A.   There were really two purposes.  One was the current
24   accident history of the road that was currently a, what could be
25   classified as an unsafe facility.  The second was based on my
0150
 1   analysis, and to some extent, prior analysis, was a lack of
 2   capacity to accommodate future traffic volumes.
 3   Q.   All right.  And in doing that analysis, would you tell the
 4   court what you determined, and let's -- you did it for a several
 5   year period; is that correct?
 6   A.   In terms of the accident analysis that was reviewed, I
 7   looked at information that we had was 1996, '97 and '98.  The
 8   number of accidents and the information was obtained from the
 9   accident records maintained by Bibb County.  And then we
10   compared those accident rates with the state-wide average, which
11   is maintained by the Georgia Department of Transportation.
12   These accident rates, these average accident rates that we used
13   are for an urban minor arterial, which is the facility type
14   which Houston Road is classified as.
15   Q.   It is an urban minor arterial?
16   A.   Urban minor.
17   Q.   Not an urban major arterial?
18   A.   No.
19   Q.   Okay.
20             MR. HUBERT:  Your Honor, I would prefer that the
21   witness not be prompted.
22             THE COURT:  Well, I expect that is a fair
23   observation.
24             MR. ALMAND:  I will rephrase the question.
25   Q.   (BY MR. ALMAND)  Are you familiar with the term, urban
0151
 1   major arterial?
 2   A.   Yes.
 3   Q.   All right.  In your opinion, would this road meet the
 4   requirements of that term?
 5   A.   No.
 6   Q.   And what was the difference, then, between an urban minor
 7   and an urban major arterial?
 8   A.   The, really, three things.  Okay.  The trip length, the
 9   length of the trips on the facility is one.  The actual volume
10   is another, and the third is the kind of access provided to the
11   abutting land.
12   Q.   Now, going back, then, to the question of the accident
13   data, using the year 1996 as the beginning year; would you tell
14   us how many accidents were there?
15   A.   There were 70 recorded accidents, of which 42 had
16   injuries.
17   Q.   And would you then tell the court, what the percentage of
18   those accidents were rearend accidents?
19   A.   Thirty percent were rearend accidents.
20   Q.   Would you compare that to the state as regards the accident
21   rate for the similar or same type of facility or highway?
22   A.   Okay.  In, and this is for 1996, the state-wide average for
23   the number of accidents was 419 per 100 million vehicle miles of
24   travel.  And if you would like me to explain what --
25   Q.   No, just convert that to a term that we can all
0152
 1   understand.  Like, is it one times less, two times less, one
 2   time more, two times more --
 3   A.   Okay.  The accident rate for Houston Road was two times
 4   that of the state-wide average.
 5   Q.   Two times the state-wide average?
 6   A.   Right.  The injury rate was 2.7 times the state-wide
 7   average.
 8   Q.   All right.  When you have accidents that, with that number
 9   of rearend accidents type, what does that indicate to a planner
10   like you, when you analyze a particular highway?
11   A.   It indicates several things.  One is that the facility is
12   not of an adequate design to meet the character of traffic that
13   is using that road.  Such as the speed and the number of turning
14   movements that are there.  In this case, the number of left-turn
15   and right-turn movements, both appear to be the real cause of
16   the rearend collisions.  Vehicles stopping to make a turn and no
17   escape, if you will, lane, for the following vehicles to use.
18   Q.   Now, you have traveled that road personally, have you not?
19   A.   Yes, sir.
20   Q.   And would you describe that in terms of -- are you familiar
21   with the term, curb cuts?
22   A.   Yes, sir.
23   Q.   What does that mean?
24   A.   That is the number of access points to abutting land or
25   access points to abutting land from the roadway facility itself.
0153
 1   Q.   Would you describe this road in terms of the number of curb
 2   cuts or access points it has in this 3.2 mile range?
 3   A.   If I remember correctly, it is something over a curb cut
 4   every 200 feet, approximately.  So that there is, I don't
 5   remember the exact number right offhand, but it averages out to
 6   something over one for every 200, 200 feet along the length of
 7   the project.
 8   Q.   Now, what is, this road used to be called what?  It was
 9   what type of highway?
10   A.   At one time it was U.S. 41.
11   Q.   United States Highway 41?
12   A.   Yes.
13   Q.   Of course, it is no longer a U.S. highway.
14   A.   No.
15   Q.   In terms of the number of curb cuts, then, would you
16   describe to the court whether in this 3.2 mile range, is that a
17   few or a lot or how would you describe it?
18   A.   That is a lot.  More than necessary for an urban, even an
19   urban minor arterial, which has a significant amount of access
20   to abutting land, without some provision for removing the
21   turning vehicles from the through travel lane.
22   Q.   And how do you move turning vehicles from a through travel
23   lane?
24   A.   The left-turn vehicles you provide with a left-turn lane.
25   With a, the right-turn vehicles with the right-turn lane or what
0154
 1   is called a separate right-turn pocket.  In this particular
 2   case, with the driveways spaced at approximately every 200 feet,
 3   that essentially involves a continuous right-turn lane and a
 4   continuous left-turn lane which would account for five lanes.
 5   Q.   Okay.  And looking at, I want to see how the history has
 6   gone from '96 until recently.  And in '97, did the accident data
 7   change?
 8   A.   The accidents in '97 went down a little bit.  But they were
 9   still almost twice the state average.  The accident rate itself
10   was 1.7 times.  The state-wide average and the injury rate was
11   1.4 times the state average.
12   Q.   Let's look, then, at 1998.  What happened in 1998?
13   A.   The number of accidents went back up.  Actually, the number
14   of total accidents were the same as in 1996.  However, the
15   percentage of rearend collisions has increased significantly.
16   It has gone up to 47 percent from 30 percent two years prior.
17   That results in approximately 2.2 percent, or 2.2 times the
18   accident rate or state-wide average accident rate for
19   accidents.  And over 3.1 times for injuries.
20   Q.   And 47 percent of them were rearend accidents?
21   A.   That is correct.
22   Q.   Okay.  Now, did you also take a look at this road in terms
23   of, for long range planning purposes?
24   A.   Yes.  We looked at a projection of traffic through the year
25   2025.  We did that based on a number of factors, including the
0155
 1   current plan, although it only goes through the year 2015.  So,
 2   therefore, we had to extrapolate using some other information
 3   beyond the current plan date of 2015.
 4        The other information included looking at the most recent
 5   history of development permits that have been permitted by the
 6   county, looking at historic traffic trends on Houston Road, the
 7   actual increase in traffic volumes from 1986 through 1998.  And
 8   then looking at the general projected development pattern within
 9   the corridor.
10   Q.   All right.  And in doing that, the developing pattern, did
11   you consider recent new developments or events that have taken
12   place in that general area?
13   A.   Yes.  There were a number of developments that had taken
14   place.  There were subdivisions that had been permitted with, in
15   one case, was 200 homes.  Another, 124 homes.  Those were near
16   Sardis Church.  On Jones Road there was 95 homes.  Allen Road
17   was 68 homes.  Off of Hartley Bridge, the Country Club was 325
18   homes.  Also, the new, a new high school, middle school, all of
19   those indicate growth, existing growth in the area, as well as a
20   trend towards additional growth in the area.
21   Q.   Did you take into consideration whether or not water and
22   sewer had become available in that area?
23   A.   Yes.  Water and sewer had not been available but now is
24   available and it is expanding in terms of its service to that
25   area.  So, therefore, the ability of that particular area to
0156
 1   absorb, if you will, additional development, is enhanced
 2   tremendously by the availability of water and sewer.
 3   Q.   Based on your experience, what happens to a neighborhood
 4   that gets water and sewer that did not previously have it?
 5   A.   Typically, it develops fairly rapidly.  It also allows for
 6   much denser use in terms of the number of lots per acre, if you
 7   will.
 8   Q.   Explain that to the court.
 9   A.   Okay.  The number of houses that you can put on an
10   individual acre of land, one acre, typically for unsewered or
11   septic tank type of development, that is generally about two per
12   acre.  For septic tank or for sewered water area, that can go up
13   to, generally, about four, three to four units per acre is not
14   uncommon.  It also allows for commercial development which
15   cannot, or fairly heavy commercial investment which cannot be
16   supported by septic sanitation.
17   Q.   Is that multifamily housing?
18   A.   Yes, that can be definitely be served by sewer and water
19   and not amenable and typically not found in septic tank areas.
20   Q.   Did you determine, also, that in this area there had been
21   recently significant commercial development?
22   A.   Yes.  We did not have an exact, you know, number of square
23   feet.  But we had reviewed both on the ground and the number of
24   permits that had been issued.  And a significant amount of the
25   new development, especially at the intersections along Houston
0157
 1   Road, are beginning to become commercial nodes.
 2   Q.   Okay.  Now, would you tell the court, please, what your
 3   projections were.
 4   A.   We looked at two alternatives.  One was -- actually, we
 5   looked at three alternatives.  One was if nothing was done.
 6   What we call a no-build alternative.  A second one was if an
 7   interchange were built at Sardis Church, and I-75 and a third
 8   was if a new interchange were built south of Sardis Church on
 9   I-75 with a connection over to Houston Road and eventually over
10   to 247.  With the no-build alternative, nothing, no
11   improvements.
12        What we found was that the volumes on the south end of
13   Houston Road would be in the, south of Sardis Church would be in
14   the range of about 14,700.  Between Houston Road and Hartley
15   Bridge Road there would be about 30,000, and then north of
16   Hartley Bridge Road, between Hartley Bridge Road an 247 would be
17   about 34,000.
18   Q.   These are 2025 figures?
19   A.   Yes, 2025.
20   Q.   Okay.
21   A.   In the alternate with the interchange, new interchange on
22   I-75 and Sardis Church Road, the volumes south of Sardis Church
23   Road on Houston Road would be about 14,700.
24        Between Sardis Church Road and Hartley Bridge Road would be
25   about 24,100 and north of Hartley Bridge Road would be about
0158
 1   20,600.
 2   Q.   Now, looking at those figures, describe to the court
 3   whether those figures, what they represent, the high, low or --
 4   A.   They are figures that represent a need to provide a
 5   facility beyond a two-lane facility.  They are four-lane,
 6   five-lane facility kinds of traffic volumes.
 7   Q.   All right.  Now, you have analyzed Houston Road, and you
 8   have analyzed the plan that is now currently being affected,
 9   that is the four lanes with the flush median?
10   A.   Yes.
11   Q.   Would you tell the court whether in your opinion there is
12   an appropriate design for that road, considering the factors of
13   safety and considering the factors of traffic volume as you
14   believe them to be?
15   A.   Yes, sir.  That is the most appropriate design for this
16   particular area based on the traffic volumes of safety and the
17   land accessibility issues in this particular area.
18   Q.   All right.  Now, there has been some suggestion that these
19   problems could be resolved by two lanes with turn lanes, or a
20   three-lane facility.  Did you look at that particular
21   alternative, at my request?
22   A.   Yes.  And that does not solve the problem of rearend
23   collisions caused by vehicles making the right turn.  Neither
24   does it solve the capacity problem of, required by the
25   anticipated future traffic volumes, which are in excess of,
0159
 1   basically, a two-lane roadway, even with the center turn lane or
 2   a three-lane roadway.
 3   Q.   Why does it not solve the rearend traffic problem, traffic
 4   accident problem?
 5   A.   Because it does not provide a lane for through movement
 6   that is independent of either a left-turning vehicle or a
 7   right-turning vehicle.  The right-turning vehicle, the right
 8   lane, on a five-lane facility, essentially acts as a continuous
 9   right-turn lane.  Especially in this situation where we have the
10   number of curve cuts in close proximity to each other.
11   Q.   So is it accurate, then, to state that with a two-lane
12   facility with this number of curb cuts you end up with
13   bottlenecks in traffic?
14   A.   You will definitely have bottlenecks of traffic with this
15   level of future traffic.
16             THE COURT:  You are leading, Mr. Almand.
17             THE WITNESS:  Excuse me, your Honor.
18   Q.   (BY MR. ALMAND)  Now, let me show you what we have marked
19   as Defendant Macon, Bibb County Exhibit 11.  And also let me
20   show you what was previously identified as Plaintiffs' Exhibit
21   82.
22             MR. ALMAND:  Your Honor, may I stand here be the
23   witness?
24             THE COURT:  Yes.
25   A.   Okay.
0160
 1   Q.   (BY MR. ALMAND)  Now, Plaintiffs' Exhibit 82 is an exhibit
 2   -- first, the underlying document on Plaintiffs' Exhibit 82,
 3   did you prepare that?
 4   A.   Yes.
 5   Q.   Now the handwritten entries, are they yours?
 6   A.   No.
 7   Q.   Okay.  Now, let me show you what we have marked as
 8   Defendants' Exhibit 11.  And would you tell the court what
 9   Defendants' Exhibit 11 is.
10   A.   It is the final, final version of what is shown here in
11   Plaintiffs' Exhibit 82.  This Exhibit 82 was a, if you will,
12   draft version of this final product here.
13   Q.   All right.  I noticed on the Plaintiffs' Exhibit 82, that
14   there is what was described as clouds with numbers.
15   A.   That is correct.
16   Q.   Okay.  Now, have you, have the figures changed from the
17   time that Plaintiffs' Exhibit 82 was prepared until the time
18   that Defendants' Exhibit 11 was prepared?
19   A.   Yes.
20   Q.   Why the difference?
21   A.   The difference is a couple of things.  Again, the
22   information on Plaintiffs' Exhibit 82 was a draft for review.
23   And based upon that review, we found a number of typographical
24   errors which were corrected in this later version.
25   Q.   All right.  So which one of the two documents, then, went
0161
 1   into the final traffic study that was the information you
 2   submitted to the road improvement program?
 3   A.   How do you want me to refer to this one?
 4   Q.   That is No. 11.
 5   A.   Okay.  Exhibit 11, then, represents the final traffic
 6   numbers that went into the determination of our final
 7   recommendations and report.
 8   Q.   Okay.  Now, Mr. Evans, there has been testimony concerning
 9   parallel connecters as a way of resolving the problems that
10   exist on Houston Road today.  You are familiar with that area,
11   are you not?
12   A.   Yes.
13   Q.   You are familiar with the road network of that area?
14   A.   Yes.
15   Q.   All right.  Have you formed an opinion as to whether it is
16   feasible, logical, cost beneficial or any otherwise, appropriate
17   to use parallel connecters rather than the solution that has
18   been accepted?
19   A.   There are a number of issues that need to be dealt with.
20   First of all, one is the spacing of arterial streets.  Arterial
21   streets need to be spaced generally, theoretically, at a maximum
22   of about one mile apart.
23        Now, that doesn't say major a materials, all major arterial
24   streets, but you need an arterial network, ideally, with a grid
25   that has a spacing of about one mile.
0162
 1        In this particular area of the county, the three
 2   north/south routes that provide arterial service are I-75,
 3   Houston Road, and State Route 247.  As in this particular part
 4   of the county, they are spaced approximately one mile apart.
 5        If you try to funnel all of your traffic on to, in other
 6   words, either I-75 or 247, then you result in a highly
 7   inefficient roadway network that doesn't serve the demand or the
 8   travel demands and causes significant indirectness in travel.
 9   Q.   All right.  In your opinion, would parallel arterial
10   collecters be a feasible alternative to solve the problems?
11   A.   From the ones that I have reviewed to date, no.  The best
12   solution that I have seen to date is the one that has been
13   proposed by the county, is the improvement to Houston Road.
14   Q.   You reviewed Mr. Hayes' suggestions on the charts that he
15   showed you.  Or you were shown.
16   A.   Yes.
17   Q.   Did you accept those as feasible alternatives?
18   A.   No, no.  Not in terms of actually addressing the traffic
19   issues within the corridor.
20             MR. ALMAND:  I have no further questions, your Honor.
21   He is with you.
22             MR. HUBERT:  Your Honor, before I begin my
23   cross-examination; may I ask for special dispensation to be
24   excused for a moment?
25             THE COURT:  Yes, let's take about five minutes.
0163
 1                               (Recess)
 2             MR. ALMAND:  Your Honor, I have one or two additional
 3   questions, if I might?
 4             THE COURT:  All right.
 5   Q.   (BY MR. ALMAND)  Mr. Evans, one thing I meant to ask you
 6   and did not.  Are you familiar with the term segmentation?
 7   A.   Yes.
 8   Q.   Is that a term that you used in your business or your
 9   profession?
10   A.   Yes, sir.  It is identified with the projects in terms of
11   logical termini and independent utility.  Segmentation of
12   projects to keep, not segmenting projects such that they don't
13   have independent utility.  And --
14   Q.   In reviewing this project, do you find that it is a
15   segmented project?
16   A.   No.
17   Q.   Does it have logical termini?
18   A.   Yes.
19   Q.   Does it have independent utility?
20   A.   Most definitely.
21   Q.   All right.  And would you say, or would you tell the court
22   whether this road with the five lanes, as planned, could be used
23   even if nothing else was done in the whole road improvement
24   program in Macon?
25   A.   Yes, sir.
0164
 1             MR. ALMAND:  Nothing further, your Honor.
 2             THE COURT:  Let me ask the witness.  Give me your
 3   definition for segmented property.
 4             THE WITNESS:  To use this particular project -- okay,
 5   as an example.  If we say that the whole project from Sardis
 6   Church to 247 is a project.  To segmentate the project would
 7   then be to say, from, the project is then from Hartley Bridge up
 8   to 247.  That is just a piece of the project, a segment.
 9             THE COURT:  How do you distinguish a segmented project
10   from a nonsegmented project?
11             THE WITNESS:  The project is not segmented if it has,
12   again, independent utility and logical termini.
13             Now, on this particular project, the logical termini,
14   Sardis Church, is where volume on Houston is a major break in
15   the volume on Houston Road. Daily traffic flow.  North of Sardis
16   Church -- in other words, Sardis Church feeds a lot of traffic
17   into Houston Road, to and from the north.  Okay?  And at 247,
18   then you are feeding that traffic into another major facility.
19             If you looked at, just from Hartley Bridge up to 247,
20   the break at Hartley Bridge, even though there is a difference
21   in traffic, most of the traffic volumes are fairly stable on
22   both sides of Hartley Bridge.  So, therefore, it is, the, it is
23   not a place for a traffic flow.  The flow changes.
24             THE COURT:  All right.
25             MR. ALMAND:  Your Honor, excuse me, I would tender,
0165
 1   while this witness is on the stand, certain exhibits.  The ones
 2   that we have identified.  I believe you have already admitted
 3   No. 2.  I tendered also, I believe Exhibit No. 11.  I believe
 4   those were the only ones that --
 5             MR. HUBERT:  Your Honor, I have some cross-examination
 6   of 11.  But I'm not sure that was in the record of certification
 7   as of the date of approval of the FONSI.  And if it is not in
 8   the administrative record, it cannot be received and was not
 9   part of a decision making process.  Thus the Preserved
10   Endangered Areas case that is in 87 F.3d.
11             THE COURT:  All right.  Well, I will -- now, that is,
12   you are speaking to 11.
13             MR. HUBERT:  DM-11 that is Bibb, Macon 11, sir.  That
14   is the one he is asking to admit now, and I would like to
15   withhold it until I have had a chance to cross-examine him on
16   that.
17             THE COURT:  All right.
18                          CROSS-EXAMINATION
19   BY MR. HUBERT:
20   Q.   Mr. Evans, my name is Richard Hubert, and I appear for
21   CAUTION Macon.  We have never been introduced or met, but I will
22   be asking you questions about the testimony from that
23   standpoint.
24        My first question, is, sir, if Houston Road does not
25   connect 247, then it is a segmented project, isn't it?
0166
 1   A.   Houston Road currently connects to 247.
 2   Q.   As improved, if it doesn't connect as improved to 247,
 3   isn't it a segmented project?
 4   A.   Let me ask you, what do you mean to 247?  Does it not end
 5   at the ramps at 247?
 6   Q.   No, sir.  My understanding, and the question to you is, if
 7   you include the improvements at the underpass and it doesn't
 8   connect to 247, then we have a segmented project, don't we?
 9   A.   No, sir.
10   Q.   No, sir?
11   A.   The, if you go through the project, you will see that one
12   lane of the improvement goes under the underpass, and one lane
13   of the improvement goes to the other ramp.  Therefore, you have
14   two lanes coming in and, therefore, the project is definitely
15   not segmented.
16   Q.   We don't, this project does not improve the underpass at
17   247, does it?
18   A.   No.
19   Q.   Can it accommodate four lanes, sir?
20   A.   It can accommodate the volume of traffic that can get
21   there.
22   Q.   No, sir.  The question to you is, does it accommodate four
23   lanes at that underpass?
24   A.   It accommodates the volume of traffic that gets there, yes,
25   sir.
0167
 1             MR. HUBERT:  I don't believe I have gotten an answer,
 2   your Honor.
 3             THE COURT:  All right.  Mr. Evans, you are going to
 4   have to give, first, a yes or no answer, and then you can give
 5   your explanation.  But --
 6             THE WITNESS:  I'm not sure I understand what he is
 7   trying to ask me.
 8             THE COURT:  All right.
 9             THE WITNESS:  Is it, are you saying that we must have
10   four lanes under 247 --
11             THE COURT:  Let him ask the question.  Mr. Hubert, ask
12   the question again, and if you possibly can say yes or no.  If
13   you don't know, I guess you can say, I don't know.  But give
14   your explanation after you say yes or no.
15   Q.   (BY MR. HUBERT)  Does the project, as planned, that you
16   said should be a five-lane project or four-lane with turn
17   signals and median and so forth, does that include an
18   improvement of the street that goes under the underpass?
19   A.   No, it does not.
20   Q.   All right.  Then it cannot accommodate all that is designed
21   on Houston Road at that particular location.  Isn't that not
22   correct?
23   A.   That is not correct.
24   Q.   Well, if it can accommodate it it accommodates it, Mr.
25   Evans, by squeezing it down into two lanes, because that is 247,
0168
 1   isn't it?
 2   A.   It has, able to accommodate that volume from a, from a
 3   traffic service standpoint, simply because it acts as a ramp to
 4   a facility which has a much higher capacity in terms of road or
 5   traffic vehicle carrying capacity than the at-grade, if you
 6   will, intersections along the five lane or four-lane with flush
 7   median section of Houston Road.
 8   Q.   Isn't it the case, Mr. Evans, that you have designed a road
 9   that is five lanes in width, and it comes down to a bottleneck
10   which is under 247, which is a two-lane road?
11   A.   No, sir.
12   Q.   Okay.  Now, let me ask you, Mr. Evans, you testified that
13   Defendants' Exhibit 11 is your final determination; is that
14   right?
15   A.   Exhibit 11 -- I don't have one, unless this is it here
16   marked 11.  I have --
17             MR. ALMAND:  Your Honor, the one I gave him I did not
18   put a tag on it, but it is 11, the one I gave him.
19   A.   That is the final version of the 1998 daily traffic volume,
20   yes, sir.
21   Q.   (BY MR. HUBERT)  And that represents a change from what you
22   had given before.
23   A.   That represents different numbers, not a change.  It
24   represents the final numbers.  Original numbers had some
25   typographical errors in them.
0169
 1   Q.   Mr. Evans, you say it doesn't represent a change but it has
 2   got different numbers on it.  Am I missing something there?
 3   A.   You are missing the fact that the, what you are calling 82
 4   is a draft.  This is the final.  And there are changes that were
 5   made from the draft to the final.
 6   Q.   Can you tell us when you prepared the final one that is not
 7   a draft and got it accepted, when you submitted it?
 8   A.   I connot give you a precise time.  If my memory serves me
 9   correctly, it was a, within two weeks of the original.
10   Q.   The original what, sir?
11   A.   Submission.
12   Q.   The original commission?
13   A.   Submission.
14   Q.   Submission.  And do you have any idea when that was?
15   A.   The exact dates, I do not, no, sir.
16   Q.   Do you know where it was circulated to the community?
17   A.   No, sir.  My idea was to, or my commission was to submit it
18   to the road program, which I did.
19   Q.   And when you submitted it to the road program, you don't
20   know whether that got any circulation at all from anyone else;
21   is that correct?
22   A.   That is correct.
23   Q.   Did you know that Mr. Doug Hayes had critiqued your
24   findings and had drawn what was the exhibit that you looked at
25   with little clouds and numbers showing the disparity there?  You
0170
 1   knew that didn't you?
 2   A.   No.
 3   Q.   You didn't know that?
 4   A.   No.
 5   Q.   You found that out today?
 6   A.   I found that out Tuesday.
 7   Q.   Tuesday?
 8   A.   Yes, sir.
 9   Q.   That was the first time you knew about it?
10   A.   Yes, sir.
11   Q.   There wasn't the process, then, that you were involved in
12   where people had a chance to comment on your work and say
13   whether they thought it was a fair representation or a
14   misrepresentation.
15   A.   I'm not sure I understand the question.
16   Q.   Yes, sir.  It is called the comment period.  And that is if
17   you submit an environmental assessment, sometimes it is
18   circulated amongst various agencies, and sometimes they are
19   careful enough to give it to a homeowner or neighborhood
20   association for their comment.  You don't know whether your work
21   went out to the neighborhood or the homeowners association for
22   comment, do you?
23   A.   No, I do not.  It is my understanding that this was done
24   after the environmental process had been completed or the NEPA
25   process had been completed.
0171
 1   Q.   It was done after the FONSI had issued?
 2   A.   I can't give you the precise dates.  I'm not a party to
 3   them.
 4   Q.   Do you know whether it was given after the FONSI or not?
 5   A.   I do not.
 6   Q.   Do you believe it was given after the FONSI?
 7   A.   I do not know.
 8   Q.   Can you tell me, was the submission that you made towards
 9   the time that the final environmental assessment was accepted?
10   A.   I have no idea.  I'm not, was not involved in the
11   environmental documentation process at all.  So I don't know.
12   Q.   You don't know whether your work has gone into the
13   environmental assessment, Mr. Evans?
14   A.   No, I do not.
15   Q.   You submitted your work to Macon, Bibb County in draft
16   form.
17   A.   Originally, yes.
18   Q.   Tell me how it came to pass that you changed the draft to
19   what is now DB-11?  Excuse me, DBM-11.  That is Bibb, Macon 11.
20   A.   How that got changed?
21   Q.   Yes.
22   A.   In the review process it was identified that the volume on
23   Sardis Church Road appeared to be high.  I would look at that.
24   In looking at that I found there was a typographical error in
25   what was originally submitted, and I made that modification.
0172
 1   Q.   Who told you that the figure was high?
 2   A.   I do not remember at this point exactly who it was.
 3   Q.   Are you aware that Ms. Doug Hayes pointed that out in his
 4   review of your work to the Macon, the transportation authority,
 5   and asked them if this was indeed correct?
 6   A.   I don't remember that, no.
 7   Q.   Do you know whether they took the time to tell Mr. Hayes
 8   that they had corrected it or not?
 9   A.   I do not know.
10   Q.   When you say that it was reviewed; who reviewed it, sir?
11   A.   I submitted it to, again, the roads program.  And who they
12   got to review it, I do not know.
13   Q.   All right, sir.  Can you tell me if the traffic volumes
14   increased to the point that four lanes needed to be extended to
15   247?
16   A.   It is, at this point, and again I think we are getting back
17   to the point of issue here, of whether or not it goes to 247.  I
18   have a feeling that your definition of the project limit and
19   mine are somewhat different.  The volumes that are there are
20   accommodated by the existing configuration of the design, and
21   the projected volumes are accommodated by that design.
22   Q.   Well, if four lanes are needed to extend to 247, then the
23   underpass at 247 has to be improved, doesn't it?
24   A.   I cannot address that issue without seeing an exact
25   definition of what you are calling the underpass.
0173
 1        Now, the limits of the project tie into that existing
 2   interchange.  Okay?  And that existing interchange with 247 will
 3   accommodate the future traffic volumes, as is.  And as is in the
 4   design.
 5   Q.   And as your plan visualizes it, then, there will be no
 6   improvement to the 247 underpass whatsoever, and that curve that
 7   you meet just under it will stay where it is; is that right?
 8   A.   That is correct.
 9   Q.   All right, sir.  Now, have you got the traffic accidents
10   that occurred at that location?
11   A.   No.  I have the accidents that occurred on the whole
12   segment.
13   Q.   Okay.  And when you say the whole segment, you mean that
14   part just before you get to the 247 underpass.  Because that
15   wasn't given to you, was it?  The accidents at 247 under the
16   underpass and just the other side; that wasn't given to you was
17   it?
18   A.   No, sir.
19   Q.   Now, let me ask you, sir, when you are talking about all of
20   these access points and curb cuts that are out there, do you
21   have any way to quantify whether curb cut is a commercial curb
22   cut, a church curb cut, a residential curb cut or a field road
23   that goes out into a pasture?
24   A.   I'm not sure what is your question?
25   Q.   The question is just that.  Do you have any way to quantify
0174
 1   what those categories were?
 2   A.   I did not quantify them, no.
 3   Q.   So any curb cut that occurred there, no matter if it went
 4   to a church and had the majority of the traffic there on a
 5   Sunday, or if it went to a private resident where one person
 6   lived and used it twice a day, was treated just like a
 7   commercial curb cut into an implement facility that had 200
 8   people in it.
 9   A.   It is a curb cut, yes, that has access to Houston Road
10   where turning movements are made, and it is independent of
11   whether or not there is one or 50.
12   Q.   All right, sir.  But it is the case, Mr. Evans, in a fair
13   minded analysis of it, that if you turned into a private drive
14   that wouldn't be the kind of curb cut that would cause a lot of
15   rearend accidents, because a person would simply drive up and
16   make a right turn into a very seldom used driveway with no
17   impediment.  Isn't that so?
18   A.   That, if you had a left turn you might say that.  But that
19   doesn't account for the rearend, which is an increasing number.
20   And the right turns are just as important in looking at the
21   rearend collisions as the left turns.  And the frequency at a
22   single intersection is not as important -- it could happen, when
23   one person is doing it during that one --
24   Q.   I understand that.
25             MR. ALMAND:  Your Honor, if he would allow him to
0175
 1   finish his question.  He was interrupted.
 2             THE COURT:  All right.
 3   Q.   (BY MR. HUBERT)  I didn't mean to interrupt.  Finish your
 4   answer?
 5   A.   It is just as important whether or not it is one vehicle a
 6   day or 50 vehicles a day.
 7   Q.   Okay.  And there is no distinction between how much traffic
 8   comes out of that curb cut, so far as you are concerned.
 9   A.   In terms of accidents, no.
10   Q.   Okay.  Now, can you tell me, did you look at any other
11   factors?  Did you look at the speed limits out there and what
12   would happen if you were to lower the speed limit?
13   A.   The speed limit is currently 45 miles an hour.  And based
14   on my observation of the current operation out there, that
15   pretty much goes along with the existing speeds.
16        If you look at some of the criteria for setting speed
17   limits, it should be set on 85 percentile, if you will, of the
18   volume.
19        Artificially going in and lowering the speed limits does
20   not allow for automatic safety, improved safety operations.
21   Q.   What is artificial?  If you have got traffic accidents,
22   don't you look at enforcement, don't you look at the speed
23   limit, don't you look at the mechanical features of where the
24   cars turn in and out and how they turn in and out?  Don't you
25   consider all of those things?
0176
 1   A.   Yes.
 2   Q.   All right, sir.  Did you consider any of them besides just
 3   widening -- what you did, just went in and said, we are going to
 4   widen Houston Mill Road so we can take all of this traffic and
 5   give it a good speed and take it out in the suburbs and spill it
 6   out in a suburban sprawl.  That was your solution, wasn't it?
 7   A.   I am not sure I have any characterization about suburban
 8   sprawl or any of that sort of thing.  The idea is to serve the
 9   demand, the travel demand that is there.  And the travel demand
10   that is there indicates a need for a four-lane facility; that
11   the current facility is not safe, and there needs to be
12   improvement to make it safe.
13        The improvements would be adding left-turn lane and
14   right-turn lane.  If you allow those at every location where a
15   right-turn and left-turn lane, or left turn can be made, then
16   you have a continuous right-turn lane and a continuous left-turn
17   lane which, in effect, is a five-lane facility.
18   Q.   Yes, sir.  Mr. Evans, I heard that testimony before.  But
19   the fact is, if we are talking about left and right-turn lanes
20   only at intersections, we don't have that problem, do we?
21   A.   The accidents not only occur at the intersections, but they
22   also occur at all the curb cuts along there.
23        It was my observation, in traveling the facility, that
24   those turns were made at locations other than the major
25   intersections.
0177
 1   Q.   The fact is, Mr. Evans, that the rigor with which you
 2   approach that particular problem, did not include an analysis of
 3   whether they occurred, rearend collisions at intersections, or
 4   whether they were, occurred in mid-block or at driveways.  You
 5   don't have any information about that at all.
 6   A.   The information that I have is for the whole section.
 7   Q.   Yes, sir.  And can you tell me, with the improved road that
 8   you have out there, the five lanes; are you going to keep the
 9   speed limit at 45 or are you going to raise it, Mr. Evans?
10   A.   It is my understanding, since I'm not the designer, that
11   the design speed is for 45 miles an hour, which would be the
12   same speed.  That is my understanding, yes.
13   Q.   Have you inquired about that?  Have you specified that the
14   only way you can attain your accident relief, or your goals in
15   terms of an accident prehighway, is to maintain that speed at 45
16   miles an hour and enforce it?
17   A.   I did not indicate that it would be accident free.  I think
18   that is a gross overstatement that, yes, they will continue to
19   be accidents.  This will reduce the accidents.  It will reduce
20   the rearend collisions.
21   Q.   And there is no such thing as an absolutely safe road, is
22   there?
23   A.   I would say that the things that are being done in terms of
24   the geometry of this particular road, of providing a shoulder
25   and removing the utility poles, providing them a safe zone
0178
 1   between the edge of the pavement and the utility poles, the
 2   continuous right-turn lane, continuous left-turn lane, all of
 3   those are factors which greatly enhance the safety of that
 4   particular facility.  And as the volume of traffic on that
 5   facility continues to increase, that accident rate will continue
 6   to increase if improvements are not made.
 7   Q.   Yes, sir.  As a matter of fact, Mr. Evans, this was a
 8   substandard road and had potholes in it, and we knew that when
 9   we first started studying it, didn't you?
10   A.   I won't talk about the surface character, if you will, the
11   surface condition.  That was not --
12   Q.   But do you know or don't you?
13   A.   Whether or not it had potholes?
14   Q.   Yes, sir.
15   A.   I do not.
16   Q.   So you didn't take that into consideration as to whether or
17   not that may have caused some incidents of traffic accidents,
18   people avoiding potholes.  That didn't occur to you.
19   A.   Typically, it would not cause a rearend collision.
20   Q.   All right -- excuse me.
21   A.   Sideswipes, any number of others, it might.  But in terms
22   of avoiding a rearend collision, no.
23   Q.   There is no quantification of that in your study, was
24   there?  How many were there that were caused perhaps by potholes
25   or were caused by those that were not rearend accidents.
0179
 1   A.   There was no information provided to me on the number of
 2   accidents caused by missing something, an object or a hole on
 3   the existing road.
 4   Q.   We know that some of the accidents were not rearend
 5   accidents?
 6   A.   Yes.
 7   Q.   Now, if, the question is, if it is a substandard road when
 8   you began analyzing it, then is it a fair analyzation to use
 9   that as an absolute basis for saying that these accidents
10   require a no-build alternative?
11   A.   I am not sure I understand that question.
12   Q.   If you don't have the accidents, you could consider a
13   no-build alternative, correct?
14   A.   Part of the analysis of all the analysis that I have done
15   on all projects is that there is always a no-build alternative.
16   Q.   The no-build was excluded in your analysis because it
17   involved accidents that you thought were two frequent?
18   A.   I'm sorry, I thought I indicated to you that I had done
19   traffic for a no-build alternative.
20   Q.   Yes, sir.  On a substandard road and found that traffic
21   accidents were too great?
22   A.   I didn't project accidents, sir.
23   Q.   Can you tell me if there are, are any alternative was
24   considered for a road that was to be deemed and considered a
25   standardized road, in your analysis?
0180
 1   A.   I'm sorry, I don't understand that question, either.
 2   Q.   Okay.  If it was a substandard road to begin with; are we
 3   agreed on that?
 4   A.   Yes.
 5   Q.   And if you bring it up and say, for my analysis I'm going
 6   to assume that we are dealing with a standard road.
 7   A.   Okay.
 8   Q.   Then we undertake to consider whether there is a no-build
 9   or a build alternative that is recommended by the facts and the
10   data.
11   A.   Well, not only that.  If you were to consider accidents
12   alone, then that might be a way to look at it.  But if you
13   remember, my projection of future volume also indicates that a
14   two-lane facility will not be adequate to handle the future
15   traffic volume.  My job, originally, that I was asked to do, was
16   to project the future traffic volume for the year 2025 on this
17   particular facility.  That, I have done.
18   Q.   Yes, sir.  And you went from two lanes to the five lanes.
19   But my question is, suppose you took three lanes and talked
20   about curb lanes left and right, curb lanes left and right at
21   intersections.  That wasn't considered, nor was there any
22   tweaking of what a three-lane would do in terms of improving
23   intersections and particular problem driveways with big density
24   or a lot of density or use, none of that was done.  You just
25   went all the way to the full five-lane roadway.  And that is
0181
 1   what happened, isn't it?
 2   A.   No.
 3   Q.   You didn't --
 4   A.   The no-build alternative is basically a two-lane.  Whether
 5   it is substandard or standard, the no-build assumes two travel
 6   lanes.
 7   Q.   Mr. Evans, did the fact that it was a substandard road
 8   before, figure into your analysis at all?
 9   A.   In terms of the travel demand, no.
10   Q.   Okay.  It is so, it is the case that a substandard road can
11   increase traffic accidents; is that correct?
12   A.   It depends on what the, what is substandard.
13   Q.   Now, can you tell me if the, if this is a rural arterial or
14   an urban arterial, in your opinion?
15   A.   It is an urban arterial.
16   Q.   And you, when you --
17   A.   Urban minor arterial.
18   Q.   Urban minor arterial.
19   A.   Yes, sir.
20   Q.   Which is some inbetween place between a rural arterial and
21   an urban arterial; is that right?
22   A.   No.
23   Q.   It is not on the scale at all, Mr. Evans?
24   A.   Well, if, if you are familiar, and if you are trying to
25   define a classification system, there is an urban system and a
0182
 1   rural system.  All right?  And on the urban system, there are
 2   urban principal arterials, there are urban major arterials,
 3   there are urban minor arterials, there are urban major
 4   collecters, urban minor collecters.
 5   Q.   That is a totally subjective determination?
 6   A.   No.
 7   Q.   It is objective?
 8   A.   Not completely.  It is a combination of objectivity and
 9   subjective judgment.
10   Q.   Let me ask you, you began this study in 1990 -- you covered
11   the years 1996, 1997, 1998, nothing in 1999, correct?
12   A.   The accident data, I assume you are talking being the
13   accident data?
14   Q.   Yes.
15   A.   Yes, sir.
16   Q.   You did '99?
17   A.   No, sir.
18             MR. HUBERT:  May I approach judge?
19             THE COURT:  Yes.
20   Q.   (BY MR. HUBERT)  I have asked you to look at that
21   document.  Are you familiar with the document?
22             MR. ALMAND:  May I ask what that document is, your
23   Honor?  May I see it?
24             MR. HUBERT:  Yes, it is a traffic accident incidents.
25   I have one for you.  Eighty-four is what it is marked.  Document
0183
 1   84.
 2             MS. BRAKEFIELD:  Is it in a book?
 3             THE COURT:  Why don't you just show it to him.  It
 4   would be shorter to just show him that.
 5             MR. ALMAND:  Your Honor, I believe the question was
 6   for the year 1999.  I'm looking at this document, and it is
 7   traffic accident counts for the year 1995.  That is not
 8   consistant with the question that was asked.
 9             MR. HUBERT:  Maybe he would object to it after.  I
10   just asked him to look at this document.  That is the question.
11             THE COURT:  All right.  Now ask the question.
12   Q.   (BY MR. HUBERT)  Do you recognize the document, Mr. Evans?
13   A.   I have not see it before, but --
14   Q.   You have never seen it before?
15   A.   No.
16   Q.   Isn't it a roads program document?
17   A.   It is prepared by the Macon, Bibb County Planning and
18   Zoning Commission.
19   Q.   And you have never seen that document before?
20   A.   No, sir.
21   Q.   Does it have incidents of traffic accidents at the, on
22   Houston Mill for the year 1995?
23   A.   If we refer to this particular table on page 3 of this
24   report, transit management systems dated June 1996.  I do not
25   see a Houston Road listed here.  But this is by intersection.
0184
 1   Q.   Does it show zero accidents on Houston Mill in that chart?
 2   A.   I don't see a Houston Mill.  Now, that doesn't mean there
 3   was zero accidents there.
 4   Q.   Well, if it shows the accidents on all other intersections,
 5   doesn't show that one; does that indicate to you that there were
 6   no accidents on Houston Mill?  I mean Houston Road?
 7   A.   I think if you read the title of this table, it is very
 8   evident.  These are the highest traffic accident locations.
 9   That doesn't mean there are other intersections and locations
10   that don't have traffic accidents.  This just listed the top, it
11   appears to be, 15 or 20 here.  Now, I'm sure there are accidents
12   located all over Macon, Bibb County that are not listed in this
13   particular document.
14   Q.   That document indicates to you, if it is accurate, that in
15   1995 this was not one of the first 20 or 25 streets that had too
16   many accidents on it that was a problem.
17   A.   No.  That is not correct.
18   Q.   Okay.
19   A.   That indicates that, and this appears to be a list of
20   intersections.  Not a list of street segments.
21   Q.   Can you tell me, you had a growth percentage in your work
22   that indicated that the growth was at the rate of about 1.2
23   percent per year; is that right?
24   A.   In general, yes.
25   Q.   And is that considered to be such a high growth rate that
0185
 1   it requires that you go from a two to a five-lane road?
 2   A.   In terms of the growth rate, you may be talking about
 3   population.  If you look at the growth rate of traffic on
 4   Houston Road from 1984 through 1997, the compounded annual
 5   increase is over six percent.  A four percent increase over 20
 6   years will more than double the traffic.  A six percent increase
 7   would be an unbelievable increase in the actual travel volume
 8   on, on a facility.  Even in the Atlanta, high growth areas of
 9   Atlanta, four percent is very high.  A six percent is
10   unbelievable.
11   Q.   Well, let me ask you, sir; we are talking about your
12   figures and my recollection of your figure was it was 1.2
13   percent.  Is that wrong?
14   A.   One point two percent of what, an annual traffic increase
15   or is that a population increase?  You will have to tell me
16   which one --
17   Q.   Those are your figures, sir --
18   A.   No, no, no, no, what are you asking?
19   Q.   I will get you the document in just a minute.  I thought
20   you would remember.  It was 1.2 increase.
21        Let me ask you to go on, and I will get that in just a
22   minute.  When you you talked about all the subdivisions that
23   were being developed, and you read them off for the court, did
24   you explain to the court that some of those subdivisions had
25   other outlets besides Houston Road?
0186
 1   A.   No.
 2   Q.   You do know that they did have other outlets?
 3   A.   Yes.
 4   Q.   Let me show you, this is table one, 1988, 2015
 5   socioeconomic data from Hartley Bridge Road to Sardis Church
 6   Road.  And we are talking about households and we are talking
 7   about the change is 1.22 percent per year.
 8   A.   Okay.
 9   Q.   Is that correct?
10   A.   That is the figure from the existing 2015 land use plan for
11   the Macon, Bibb County area.  That was the starting point.  That
12   was not the actual number that we ended up using.
13        Based on what was happening in terms of the permits that
14   you are talking about, we felt that that particular figure, in
15   terms of growth and development in the area, was low.  And that
16   number was revised.
17   Q.   You revised it on your own without reference to any other
18   documentation from the government or any other source?
19   A.   The source that we have talked about in terms of the
20   building permits, in terms of the zonings, those were used in,
21   as a basis for revising that particular estimate.  And, also,
22   you will have to remember that that is at 2015.  We were going
23   to the year 2025.
24   Q.   All right.  So this particular document has been
25   substantially changed and substantially amended.  Was it before
0187
 1   or after the FONSI was entered?  Do you know?
 2   A.   No.
 3   Q.   Do you know whether it became a part of the environmental
 4   assessment?
 5   A.   No.
 6   Q.   Do you think it was done contemporaneously with DBM-11?
 7   A.   Oh, it was done as part of our analysis.  Okay?  That was
 8   part of our analysis.
 9   Q.   The final analysis.
10   A.   The back-up information that resulted in the final
11   analysis, yes.  That was part of the, if you will, research that
12   went into developing the final set of numbers.
13   Q.   Can you tell me, did you consider the density at all under
14   the 2015 plan?
15   A.   Yes.
16   Q.   Which was it 2015 or 2025?
17   A.   I'm sorry.  You asked me did I consider -- okay, that
18   document in itself considers a density.  Okay?  We looked at
19   what was happening in terms of the existing permitted, recently
20   permitted development, and the densities associated with that.
21   And one would think that those zonings would indicate what kinds
22   of densities were being permitted in the area.  And we used
23   those densities to estimate additional growth for the year 2015
24   to 2025.
25   Q.   Did you consider four houses per acre on a lot size of
0188
 1   10,000 square feet?
 2   A.   That is basically four units per acre is 10,000 square
 3   feet.
 4   Q.   Is that what you considered?
 5   A.   Not in all cases, no.
 6             THE COURT:  Let me stop you.  Mr. Hubert, will you
 7   give me some idea how much longer you have?
 8             MR. HUBERT:  About ten minutes more, and I will try to
 9   undertake to get it over in ten minutes.
10             THE COURT:  All right.  How many more witnesses are
11   you going to have?
12             MR. ALMAND:  Your Honor, I'm sitting here debating
13   that question at the moment.  It may not be many, hardly, if
14   any.
15             THE COURT:  Okay.  Let's move on.
16   Q.   (BY MR. HUBERT)  Mr. Evans did you consider that the
17   commercial development is concentrated at the north end of this
18   roadway?
19   A.   As I had indicated earlier, they are developing commercial
20   nodes at all the major intersections at Sardis Church, at
21   Hartley Bridge.  And the development between Hartley Bridge and
22   247 is, is light commercial, okay?  It is not a commercial node,
23   if you will.
24   Q.   Commercial development is concentrated in the north end of
25   that roadway, isn't it?
0189
 1   A.   Yes, currently.
 2   Q.   Now, do you know any of the traffic patterns for the local
 3   resident?  Did you do any research into that question?
 4   A.   We looked at the turning movements, we made peak hour
 5   turning movement counts at the major intersections, which would
 6   include the travel movements of the local residents, yes.
 7   Q.   Any data analysis, Mr. Evans, where you find out how many
 8   local trips the residents did as opposed to trips out of the
 9   locality or the residential area?
10   A.   We did not do any origin destination surveys, no.
11   Q.   All right.  Did you consider the full alternative plan
12   proposed by Mr. Doug Hayes in the community at all?
13   A.   In terms of coming up with the numbers that are shown here,
14   no.
15   Q.   No, sir, no, sir.  The question is simply this:  Did you
16   consider the alternative plan that the community produced
17   through Mr. Doug Hayes?  There was a chart of it and an analysis
18   done.  Was that given to you at any time for your consideration?
19   A.   Yes, I have reviewed that plan.  And I have stated as I
20   stated; it does not satisfy the general criteria for travel
21   movements in the area.
22   Q.   Yes, sir.  That plan was reviewed by you prior to your
23   testimony in court last Tuesday.  Wasn't that your testimony?
24   A.   Tuesday?  I'm sorry sir.  I'm saying I looked at it.
25   Q.   Yes, sir, I'm saying, your testimony, when you were asked
0190
 1   about this, is, it was restricted to looking at it prior to your
 2   testimony tonight as late as last Tuesday?
 3   A.   I'm sorry, I don't understand restricted.  I am just saying
 4   that I looked at it last Tuesday.
 5   Q.   You did not have the community plan at the time you
 6   submitted your report for the environmental assessment; is that
 7   a correct statement?
 8   A.   I'm not saying that my report was submitted for the
 9   environmental assessment.
10   Q.   Okay.  When you submitted your report, whether it was for
11   the environmental assessment or not, had you read Mr. Dug Hayes'
12   plan?
13   A.   When I submitted my report to the Macon, Bibb County
14   Program, I had not reviewed the community or Mr. Doug Hayes'
15   plan, no.
16   Q.   All right, sir.  Did you do a cost benefit analysis?
17   A.   For what?
18   Q.   For alternative routes.
19   A.   No.
20   Q.   You are familiar with cost benefit analysis, are you not,
21   Mr. Evans?
22   A.   Yes, sir.
23   Q.   Do you not do cost benefit analysis when you undertake a
24   study like this, as a matter of routine discipline, to determine
25   whether or not the public improvement is going to achieve the
0191
 1   goals that you are after at the cost of X dollars or X plus ten
 2   million dollars?  Don't you do that?
 3   A.   In certain cases, yes.
 4   Q.   Did you do it here?
 5   A.   I did not do it as part of my analysis, which was to
 6   project, again, the 20-year traffic volumes on the road.  It was
 7   not to do anything else.  It was not to do any benefit cost
 8   analysis.  It was not part of any other study.  It was just to
 9   do a, an estimate of the future traffic volumes.
10   Q.   Did you consider what the damage to the topography would be
11   in terms of the slopes, both supporting the highway and on the
12   high side of the highway, of the five-lane road with the kind of
13   intersection treatment that you were considering?
14   A.   My job was not to look at the geometric design of the
15   facility.  It was to come up with an estimate of future traffic
16   volumes.  That is what was done.
17   Q.   There was no look at any environmental factor in your
18   analysis.
19   A.   That is correct.  My job was not to do an environmental
20   analysis.
21             MR. HUBERT:  That is all I have, your Honor.  Thank
22   you.
23             MR. ALMAND:  May I have just a moment, your Honor?
24             THE COURT:  Yes.
25             MR. ALMAND:  Nothing further, your Honor, of this
0192
 1   witness.
 2             THE COURT:  Anybody else have any questions for the
 3   witness?
 4             MR. ADERHOLD:  None from the United States, judge.
 5             MS. BRAKEFIELD:  No, your Honor.
 6             THE COURT:  All right.  You are excused.
 7             MR. ALMAND:  Your Honor, if I can have three or four
 8   minutes, I will decide whether I'm going to call any more
 9   witnesses.
10             THE COURT:  All right.  We'll just stand easy.
11             MR. ALMAND:  May I step out in the hall, your Honor.
12             THE COURT:  Yeah.
13                               (Recess)
14             MR. ALMAND:  Judge, I have no additional witnesses.  I
15   do have one additional exhibit, which is a letter, and I will
16   tender it under the Business Records Act.  It is in the report,
17   Houston Road Flood Study which I have given you a copy of.  It
18   is a letter of June 16, 1999 to Ms. Sheri Williamson from
19   Michael Windom of Tribble & Richardson, Inc.  Ms. Williamson is
20   here, if you want me to put her on the stand.
21             MR. HUBERT:  Just let me look at it please, sir.
22             MR. ALMAND:  The last page.
23             THE CLERK:  Do you have an exhibit number?
24             MR. ALMAND:  I will put one on it.  Judge, I retender
25   D-11, also.
0193
 1             THE COURT:  That is DB slash M-11?
 2             MR. ALMAND:  Yes, sir.
 3             MR. HUBERT:  Your Honor, I waive formality of having a
 4   witness on the stand to identify this document, which is D-3.
 5   And I, for the record, would object to it because it is a letter
 6   dated June 16, 1999 from Tribble & Richardson being signed by
 7   somebody named Michael Y. Wisdom, PE.  I make no issue of the
 8   authentication of the document, but it is irrelevant and
 9   immaterial because of the date of the letter and the time
10   frame.
11             The record, administrative record here, is variously
12   considered to be closed in August of 1998 when the issuance of
13   the FONSI and environmental assessment.  Then we have the
14   amendment that came out.  We have had subsequent testimony about
15   certain changes that have been made and most of these people's
16   testimony.  But that is as of June 1999.  There is no evidence
17   that it is a part of the administrative record.
18             That, again, is an issue that must be satisfied to
19   meet the requirements of Preserved Endangered Areas of the U.S.
20   Corps of Engineers in 87 F.3d at page 1242.
21             MR. ALMAND:  May it please the court, the purpose of
22   the record is not for the truth of what is asserted.  But if you
23   will remember, during the testimony of plaintiff, Hayes, he
24   referred to this report, and he testified in this report -- I
25   have the entire report and I have no problem in submitting the
0194
 1   entire report, called the Houston Road Flood Study, in which he
 2   pointed out one particular part of that report.
 3             And the part and map that went with it about, the
 4   court will remember is, that it was proposed that the new
 5   detention pond to be built on a site -- and all this is, is to
 6   further explain that testimony that was offered by Mr. Hayes.  I
 7   guess you would say it is in the nature of rebuttal of testimony
 8   of Mr. Hayes, because they discussed part of this report.  In
 9   the interest of completion, under the federal rules, I submit
10   either the entire, I will submit the entire report.  I have no
11   problem with that, or just this letter.  It will be complete
12   under the federal rules.  Since they introduced part of it or
13   discussed part of it, I think we are entitled to do the rest of
14   it.
15             MR. HUBERT:  Your Honor, D-65 was a document we
16   identified for Tribble/Richardson, et al.  It was admitted into
17   evidence.  This document is entirely different from that.  Mr.
18   Hayes never dealt with this document, that I know of, at all.
19   And as you can see they are vastly different.
20             THE COURT:  What is D-65.
21             MR. HUBERT:  D-65 is the Richardson/Tribble report
22   dated --
23             THE COURT:  You want to respond to that?
24             MR. ALMAND:  If you will look at D-65, the first page
25   of the flood study, you will see they are the same.  First page
0195
 1   of D-65 is identical to the page in the flood study.  First
 2   page.  The letter dated May 18th to Mr. Tad Russell.
 3             MR. HUBERT:  There is a world of difference, your
 4   Honor, from what Mr. Almand is showing you and what is DBM
 5   No. 5.  And that is, this document is not the same document I
 6   offered in 65.
 7             THE COURT:  Well --
 8             MR. ALMAND:  May it please the court, the federal
 9   rules say that when part of something is identified, we have the
10   right to do the rest of it.
11             Now, I objected, if you remember, to 65.  You admitted
12   it over my objection.  So since it has been admitted, I think it
13   is only fair that the entire report and study be admitted.  I
14   will just tender the entire report instead of just one selected
15   portion of it.
16             THE COURT:  I will admit it for what it is worth.
17             MR. ALMAND:  Thank you.  I have no additional
18   witnesses.
19             THE COURT:  All right.  Now, evidence is closed.
20             MR. HUBERT:  Your Honor, I have a rebuttal.
21             THE COURT:  All right.  You want to do it right now?
22             MR. HUBERT:  Right now, two minutes.
23             THE COURT:  All right.  Put him up.
24             All right.  He has tendered D-11.  I have admitted
25   that.
0196
 1             MR. HUBERT:  I don't know whether I, I think I
 2   objected to that, but in the measure of caution, your Honor,
 3   that would carry the same objection.  And that is, it is not
 4   clear from the document identified that it is within the
 5   relevant period of time, and that is the document received and
 6   incorporated in the report which is part of the administrative
 7   record in this case.  And I believe that they are operating on
 8   the basis of August of 1998.
 9             MR. ALMAND:  May it please the court, again, all that
10   does is explain a point made by Mr. Hayes in the testimony where
11   he made a big issue out of the fact there was an error.  And all
12   it does is explain that error.
13             THE COURT:  Well, I have, I believe I have admitted
14   the document that had the little clouds on it.  And I am going
15   to admit this, too.
16             MR. ALMAND:  Your Honor, there is one other exhibit
17   that goes on the question of latches that we raised.  And that
18   is an ante litem notice sent by Mr. Hubert to Bibb County.  We
19   think there is a date of May 10, 1999 that gives a date, I think
20   might be pertinent in the event, now, you, in your consideration
21   on the question of latches.  So I will tender the anti litem
22   notice that was sent by Mr. Hubert.  I think he will recognize
23   his signature.  And that would be No. 4, I believe.
24             MR. HUBERT:  No, we have got a D-4, Mr. --
25             THE WITNESS:  Not a DM-4.
0197
 1             MR. HUBERT:  Yes, sir, no, you are right, it was the
 2   Government 4.
 3             THE COURT:  All right.
 4             MR. ALMAND:  Make it 6.
 5             THE COURT:  We have a rebuttal witness.
 6             MR. HUBERT:  Yes, I do.  Be seated.
 7             THE COURT:  Witness has previously been sworn and
 8   still under oath.
 9             MR. HUBERT:  Yes, sir.
10
11                          SUSAN F. HANBERRY,
12   having been previously duly sworn, was examined and testified as
13   follows:
14                          DIRECT EXAMINATION
15   BY MR. HUBERT:
16   Q.   Give us your name again for the record?
17   A.   Susan F. Hanberry.
18   Q.   Yes.  And you are still under oath, and understanding that?
19   A.   Yes, sir.
20   Q.   I would like for to you tell us what you understand the
21   state of the air quality attainment is since August of 1998.
22   A.   In, since August of 1998, Macon, actually, Bibb County, is
23   in a state of noncompliance with the Clean Air Act.
24        The state, there was sort of an interesting little glitch
25   in some of the application of rules for ground level ozone.  The
0198
 1   EPA had asked that a stricter limit be put in place and someone
 2   contested, I can't remember who it was.  But while that was
 3   being contested, there was, excuse me, no standard in place.
 4        The old standard has been reinstituted, and Bibb County is
 5   out of compliance with that standard at this time, and was also
 6   in 1998.
 7   Q.   Can you tell me if it is out of compliance as relates to
 8   disulfides?
 9   A.   No.  We are in compliance with total suspended
10   particulates.  Also, sulfur dioxide.  Our particular problem,
11   the problem that we are not a compliance with federal law in, is
12   in ground level ozone.  And later this summer, the EPA and State
13   Environmental Protection Division understands that Macon will be
14   given a nonattainment status.  At current time we are not
15   formally considered nonattainment, because that rule, the new
16   rule, was not instituted.
17   Q.   Does the environmental assessment address that
18   noncompliance circumstance?
19   A.   It does not.  And I was most surprised to see that.
20   Because this has been a contaminant of concern in Bibb County.
21   That is grounds level ozone has been a contaminant of concern in
22   this county for quite a while.  It has been increasing over
23   time; that that was not addressed at all in the environmental
24   assessment.
25        This has grave implications for our federal funding.  When
0199
 1   we have reached formal nonattainment status, as Atlanta has,
 2   that has a lot of implications for federal funding for road
 3   projects.  Particularly since NOX and SOX are two of the
 4   chemicals, when combined with sunlight form ground level ozone,
 5   our constituents and pollutants that come from internal
 6   combustion engines.
 7   Q.   Is it restricted to fossil fuel?
 8   A.   No.  There are other sources of that kind of pollution, as
 9   well.  Some are industrial and some come from cars.
10   Q.   If you, if you did a roadway study, a transportation study,
11   where you were concerned about the environment, would you or
12   would you not discuss the ground level ozone air attainment or
13   noncompliance issue?
14   A.   I would think that since this was a contaminant of concern,
15   and had been for quite a while in Bibb County, that that most
16   certainly should be a part of any kind of environmental
17   assessment.
18   Q.   Did you happen to mention in your White Paper that you did
19   for the new mayor?
20   A.   Yes.
21   Q.   Thank you.
22             MR. HUBERT:  She is with you.
23                          CROSS-EXAMINATION
24   BY MR. THOMASON:
25   Q.   Madam, you have purported yourself to be expert on the
0200
 1   Clean Air Act before this court.  You would know, then, that any
 2   designation by the Environmental Protection Agency for an area
 3   to go into noncompliance, would be done by published notice in
 4   the Federal Register, would you not?
 5   A.   I assume that would be so.
 6   Q.   Well, I would like for to you point, now, please, to the
 7   Federal Register Notice by the Environmental Protection Agency
 8   that supports your claim that Macon, Bibb County is in
 9   noncompliance with the Clean Air Act.
10   A.   I'm not sure that noncompliance requires it be published in
11   the Federal Register.  I know nonattainment does.  But we are
12   not, in the published records from the Environmental Protection
13   Division.  And, again, given the fact that there was a challenge
14   to the new standards that the EPA had promulgated, many of these
15   designations are behind times.  But, again, since this is a
16   contaminant of concern, I would think it would be certainly
17   addressed in an environmental assessment.
18   Q.   So I take it that your claim that Macon Bibb County is out
19   of compliance with Clean Air Act is simply your understanding or
20   your interpretation of the, what you think its status is rather
21   than some official designation by EPA?
22   A.   The official designation which is given as a parts per
23   million limit on the amount of ground level ozone is one level,
24   and Bibb County is well above that level, and has been for a
25   number of days.  Of which, all of which are public, excuse me,
0201
 1   Environmental Protection documents.
 2   Q.   Would you answer my question, please, ma'am?
 3   A.   I'm not sure what your question was, then.
 4   Q.   I asked you because, of the official designations of an
 5   area as being out of compliance with the Clean Air Act,
 6   requires, by law, a Federal Register Notice, Environmental
 7   Protection Agency, I ask you to direct his honor to any notice
 8   that changed the status of Macon, Bibb County's compliance to
 9   one of known compliance.
10   A.   I think perhaps what we are talking about are words and
11   verbage.  And because this new limit on ground level ozone had
12   lapsed, we perhaps are not officially out of compliance.
13   However, we are not in compliance with the law, because our
14   limits are well over what they should be.  Does that answer your
15   question?
16   Q.   No, ma'am, it does not.  But can you point this court to
17   any designation by the Environmental Protection Agency through
18   Federal Register Notice that changes the current status of
19   Macon, Bibb County's compliance with the Clean Air Act?
20   A.   Let me read to you if I can, a piece of paper --
21   Q.   I'm sorry, I'm going to -- it is late and I'm tired and my
22   back hurts.  I'm not going to argue with you.  Read me only,
23   please, a Federal Register Notice that changes, by EPA, that
24   changes the MPO of this area's compliance with the Clean Air
25   Act?
0202
 1   A.   I will not be reading you something from the Federal
 2   Register.  I would be reading you the state limit on, I am
 3   saying state limits, the Georgia Environmental Protection
 4   Division limit for ground level ozone and Macon, Bibb County's,
 5   they are, what they give as their standard and what, how we meet
 6   that standard and how we don't meet that standard, actually, and
 7   the number of days for which we did not meet that standard.
 8   Q.   In your opinion --
 9   A.   It would not be from the Federal Register.  I do not have
10   that are information.
11   Q.   So your testimony, under oath to this court is, that you
12   possess no Federal Register Notice that changes Macon from
13   compliance to noncompliance?
14   A.   I do not have a Federal Register Notice of such.
15   Q.   And what you have just testified to is your own belief of
16   the consequences of the status of Macon County's air?
17   A.   No.  What I have testified to is the Environmental
18   Protection Division's published list of the ground level ozone
19   in Macon, in parts per million, and their standard, which we do
20   not meet.
21   Q.   And your -- based on those, what you have just testified
22   to, is merely your interpretation of them.
23   A.   Well, I don't know how you can interpret a standard and not
24   meeting a standard other than what it is.
25   Q.   But, madam, you have drawn the conclusion for this court
0203
 1   that as a matter of law, this area is out of compliance with the
 2   statutory act of Congress.  You are looking at standards and
 3   telling the court that in your opinion, as an expert, we are
 4   out, Macon is out of compliance?
 5   A.   And, again, I told you that because these, they promulgated
 6   new regulations and have not been in place but maybe about three
 7   weeks.  I don't believe we have even had time to publish such
 8   notice.
 9   Q.   That is all.
10             MR. ALMAND:  No questions.
11             THE COURT:  You may go down.
12             MR. HUBERT:  You may come down.  That would conclude
13   the case, your Honor.
14             THE COURT:  No surrebuttal?
15             MR. ALMAND:  No.
16             THE COURT:  All right.  Now let's talk about what is
17   next.
18             This is a, without question, this is an extremely
19   complicated matter.  I can get a transcript within a week.  And
20   if you can submit me post-trial, post-hearing briefs based on
21   the transcript.  Or we can do it some other way, without the
22   transcript.  Just on, I am, I am not, obviously, in a position
23   to issue any ruling this evening.  I would invite comment from
24   both sides as to where we go from here.
25             For the plaintiff, Mr. Hubert.
0204
 1             MR. HUBERT:  Yes, sir.  Your Honor, may I suggest that
 2   we make an oral argument to you of closing argument, and that it
 3   be done on an ad hoc basis by a telephone call to us when your
 4   Honor's schedule permits.  If I can get two hours notice or a
 5   little notice, I will be down here.  Other people are local
 6   here, and I think we could hammer it out for you and answer any
 7   questions you have.  I am content to file a brief before or
 8   after the transcript.  I would prefer the transcript, if that is
 9   the way the court directs it.  But --
10             THE COURT:  I mean, you are suggesting -- let's talk
11   about the transcript.  Are you suggesting get a transcript?
12             MR. HUBERT:  That would prefer a transcript, yes, sir.
13             THE COURT:  Mr. Thomas and Mr. Aderhold?
14             MR. THOMASON:  I speak only for the Secretary.  I
15   think a transcript would be appropriate, and Mr. Hubert still
16   has an obligation to respond to the Secretary's motion in
17   opposition to the preliminary injunction.  And that a post-trial
18   brief would be, he could incorporate both of those.  We would
19   like to do the, I guess, post-trial briefs.  And I think you
20   understand our position.  So we could from the brief.  I don't
21   think an oral argument is necessary.
22             THE COURT:  Well, okay.  So I am going to, I have got
23   a trial that is going to last all next week at least.  And then
24   I go to Athens for two weeks.  And I'm going to cut Mr. Cook
25   loose next week so he can work on this transcript, and get
0205
 1   another court reporter to handle this trial next week.  And
 2   Mr. Cook indicated earlier today that he thought he could have
 3   it complete by Friday.
 4             All right.  Now, you tell me how much time you want
 5   after Friday to get your brief in.
 6             MR. HUBERT:  Your Honor, we would request ten days
 7   after the transcript is received.  And if I may, your Honor, I
 8   would like to be allowed to respond as to both the motion to
 9   dismiss, and file our post-trial brief at the same time.  That
10   is some ten days after the transcript is in, if I may.
11             Partly because this week has been taken up by the
12   trial, and it is due Monday, and I don't think, physically, it
13   can be prepared by Monday.  It would be helpful to you.
14   Something will be prepared, but not really helpful to you in
15   view of what the situation here.
16             It is kind of moot, your Honor.  They move for motion
17   to dismiss, and we have already gone through the preliminary
18   hearing.  And we do have some testimony now.  Seems to be a
19   summary judgment issue at most.
20             THE COURT:  Well, I have basically opened the doors
21   for testimony, evidence, both sides.  I took the position that I
22   would, I would hear evidence that may or may not be relevant
23   after we get into it.
24             What does the defense say about the, getting the
25   transcript next Friday?  How much time do you want to get in a
0206
 1   brief?
 2             Say you get it by Monday.
 3             THE CLERK:  Monday's a holiday.
 4             MR. THOMASON:  I have the unenviable task of being the
 5   author of a great portion of the government's brief, as I was
 6   previously.  As you know, Monday is a holiday on the 17th.  And
 7   unfortunately, I'm having back surgery on Tuesday.  No,
 8   Wednesday.
 9             THE COURT:  Well, that gives you all day Tuesday.
10             MR. THOMASON:  I could write it all day Tuesday if I
11   get in it the mail.  Could we have, could we have to the 28th?
12   I don't think I will be out of commission too long.
13             THE COURT:  You know, this, believe me, this is one I
14   want to get right if I can.  I'm willing to give you a little
15   extra time.
16             MR. THOMASON:  I will sit up and get right to it, I
17   promise you, but I'm going to be out for a couple of days at
18   least.
19             THE COURT:  All right.  Here is what -- get a brief by
20   the 28th.
21             MR. THOMASON:  Yes, sir.  Close of the day on the
22   28th.
23             THE COURT:  What I will do is, I will let both sides
24   get me a brief on 28th, and then you will have five days to
25   respond to the opposing brief.
0207
 1             MR. THOMASON:  Thank you.
 2             THE COURT:  Anything that we have not settled here?
 3   If there is nothing further, we stand adjourned.
 4                      (End of day's proceedings)
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0208
 1
 2
 3
 4                        C E R T I F I C A T E
 5
 6
 7             I, LEE COOK, Official Court Reporter of the United
 8   States District Court in and for the Middle District of the
 9   State of Georgia, Macon Division, a Registered Professional
10   Reporter with the National Shorthand Reporters Association, do
11   hereby certify that the foregoing transcript is a full, true and
12   correct record which was taken down in machine shorthand by me
13   and thereafter reduced to print under my direction.
14             I FURTHER CERTIFY that I am in no way interested in
15   the outcome of the case named in said caption.
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                                        LEE COOK
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