There have been two recent developments concerning airport noise issues which directly affect the City and about which City staff seeks direction from the City Council.

First, the Authority has provided the City, under cover of a letter dated October 3, 2005, a draft Airport Authority staff report concerning the status of the Part 161 Study.  The Authority staff report essentially recommends that further work on the Part 161 Study be deferred for an indefinite time while the Authority seeks legislation from Congress to change FAA procedures regarding evaluation of noise benefits.  The City has to decide whether to agree with the Authority�s recommended course of action.

Second, as required by the Development Agreement, the Authority has provided the City with a draft of its proposed application for a Noise Variance.  The City has 30 days to comment on this application; the formal application must be filed with CalTrans by November 19, 2005.  The City has to decide what position it wants to take on the application and its posture in the administrative process by which CalTrans will issue a new three-year Variance.

Background: Part 161 Study

As part of its decision issuing a Noise Variance in 1998, CalTrans ordered the Authority to prepare a Part 161 Study.  The Authority started its Part 161 Study in early 2000.  The progress on the study has been extremely slow and costly. 

The most important substantive element of the Part 161 Study is a benefit-cost analysis.  In order to obtain FAA approval, the Authority must demonstrate that there is a reasonable probability that the benefits will exceed the costs of a full nighttime curfew.  The Authority completed a draft of the benefit-cost analysis of a mandatory curfew in September 2003.  At that time, the Authority sent the draft analysis to the FAA for its informal comment.  The draft analysis attempted to quantify both the benefits and the costs of a full nighttime curfew.  Many of the benefits � including especially the nighttime benefits of reducing sleep disturbance � were difficult to quantify or to give a monetary value.  The analysis, however, attempted to �monetize� the benefits by assigning a dollar value to these quality-of-life benefits.  This approach is standard in economic modeling.

The FAA responded in writing in May 2004, at which time the agency provided detailed comments which were highly critical of the manner in which the Authority�s consultant had conducted its analysis.  The FAA�s comments fell into two broad categories.  First, the agency said that the Authority should not consider benefits to areas lying outside the 65 dB CNEL contour.  Second, the agency was critical of the manner in which the Authority�s consultant monetized certain benefits in areas within the 65 dB CNEL contour.  This second comment was particularly important because, as discussed below, the Authority is not required by federal regulations to quantify or monetize benefits.

It took another year, until May 2005, for the Authority�s consultant to prepare a revised analysis to respond to FAA comments.  The City received a copy of that revised analysis only last month.  The revised document limited its analysis of benefits to the area within the 65 dB CNEL contour.  It also eliminated the sections of the analysis that monetized certain of the benefits within the 65 dB CNEL contour.  The revised analysis quantified, or monetized, some, but not all, of the benefits.

With these changes, the Authority�s consultant concluded that the quantified benefits are not likely to equal or exceed the costs of a nighttime curfew.  The consultant did not attempt to measure the non-quantifiable quality-of-life benefits or compare those benefits to the costs of the curfew even though the FAA is required to consider those benefits in deciding whether to approve a new noise rule.  Neither did the Authority attempt to explain the appropriateness of considering benefits outside the 65 dB CNEL, which also is expressly permitted by federal law.

In our view, the consultant�s analysis is incomplete and will remain so unless and until the Authority and its consultant fully explore (technically and in consultation with the FAA) the appropriate size of the study area and the comparison of quantified costs against qualitative benefits.  We accordingly do not take as dim a view of the Part 161 Study or the prospects for a curfew.  We believe it is premature to conclude that a curfew is impossible or to conclude that pursuing the Part 161 Study is futile.

The Authority staff has proposed, in essence, that the Part 161 Study be deferred for an indeterminate period of time.  In the meantime, Authority staff has recommended that the Authority seek federal legislation which would change the manner in which the FAA evaluates costs and benefits of a noise restriction.  The Authority has not outlined a plan for achieving such legislation.

Background: Noise Variance

The California Airport Noise Standard prohibits �noise problem airports� that have a �noise impact area� from operating without a Noise Variance.  The �noise impact area� consists of homes, schools, hospitals, churches and similar �incompatible� uses within the 65 dB CNEL noise level.  Schools and homes have been insulated are considered �compatible� and not included in the noise impact area.  The CalTrans noise regulations require that noise problem airports eliminate the �noise impact area� surrounding an Airport.  In determining whether to grant a Variance, CalTrans must determine that the airport proprietor has a plan in place to reduce the size of the noise impact area.  CalTrans can impose conditions on a Variance designed to require an airport proprietor to make progress toward eliminating the noise impact area.  Each Noise Variance is valid for up to three years.

The Authority has received a number of Variances, most recently in 1998 and 2001.  The City participated actively in the trial-type administrative proceedings which led to the issuance of both of these Variances.  In both 1998 and 2001, CalTrans approved a plan for the reduction of the noise impact area around the Airport which included a number of measures including sound insulation of homes, improved monitoring of compliance with existing Airport rules and pursuit of a Part 161 Study. 

As noted above, the Authority�s application for a new three-year Variance is due on November 19, 2005.  As required under the terms of the Development Agreement between the City and the Authority, the Authority has provided the City with a draft of the Variance application for City review and comment.

The Authority�s draft application requests approval to continue with its existing measures, including in particular sound insulation of residences and other noise-sensitive structures.  The Authority predicts that, at its present pace, it may be able to eliminate the noise impact area by 2010, rather than 2015 as projected previously.  The application also contains the recommendation on the Part 161 Study from the Authority�s draft staff report (described above).

Noise Working Group

As provided in the Development Agreement, staff from the Authority and the City have met several times over the last few months as the Noise Working Group.  In addition to noise issues, we have discussed the possibility of siting an additional CNG station at the airport and explored the possibility of constructing a transportation center on airport property to serve airport passengers as well as shuttle and train passengers.  Due to various technical issues these discussions have not been successful. 

City staff has also suggested the hiring of a joint consultant to assist the parties in identifying and working toward noise solutions.  Either in the alternative or in conjunction with such a consultant, City staff suggested retaining an attorney knowledgeable in airport matters and independent of either party.  For various reasons, not the least of which was the looming CalTrans Variance process, those proposals were not acceptable to the Authority. 

The difficulty of the Working Group discussions should not be taken as an indication that we are returning to a period of heated battles with the Authority.  We always knew that both the Authority and the City, although striving to work together, have different basic interests and will often find those interests at odds.  We are still optimistic that agreements and understandings can be reached on all the issues discussed in this memorandum.

Options and Recommendations

The City has two principal interrelated decisions to make.  First, staff is seeking direction from the City Council on how, or whether, to ask the Authority to proceed with the Part 161 Study.  Although that issue was brought up at the October 18 Council meeting, Council direction was delayed pending full consideration.  Second, staff is seeking direction on what position the City should take with regard to the Authority�s soon-to-be-filed Variance application.

Part 161 Study

The Authority has recommended, in essence, that the Part 161 Study be deferred for the time being.  That recommendation is based, as best we can determine, upon the Authority consultant�s report which concluded that the benefit-cost analysis will not survive FAA review.  As explained above, we do not agree that such a conclusion can be drawn from the available data.  The City has three basic options:

1. To agree with Authority staff that the Part 161 Study is doomed without new federal legislation and that the Study should, therefore, be suspended until federal law can be changed, either in the manner proposed by Authority staff or through some other legislative relief;

2. To urge the Authority to aggressively pursue the full curfew through the Part 161 Study; or

3. To work with the Authority to develop alternatives to a full nighttime curfew that would have a higher probability of success under existing federal law and regulations.

City staff does not believe that the first option is in the City�s best interest at this time.  We do not have sufficient evidence to let us conclude that the Part 161 Study is futile.  While the Part 161 process is difficult, filled with legal and technical hurdles and largely untested, the Authority has not exploited the process with an approach that appears likely to succeed.  The entire process has been characterized by long, inexplicable delays and an apparent lack of aggressive attempts to secure FAA cooperation or acquiescence.  The Part 161 Study should not be abandoned (or deferred indefinitely, which will effectively have the same result) merely because the Authority has not pursued certain avenues that we believe are entirely appropriate.

Noise Variance

In 1998 and again in 2001, the City requested a formal trial-type hearing on the Authority�s Variance application.  In both instances, the trial took approximately a week.  Both times, the resulting Variance contained substantial conditions and requirements that the City had demanded but did not contain all of the City�s requested conditions.

Historically, the optimal way for the City to participate in the Variance process was to request a formal, trial-type hearing.  In recent years, however, CalTrans has encouraged parties to explore other options which are both less costly and more efficient than a formal administrative trial.  In particular, CalTrans is willing to work with airports, local governments and affected communities to develop a negotiated process for addressing and resolving issues in the Variance process.  The result is the same as if there were a formal administrative hearing:  a formal Variance is issued subject to conditions with which the airport proprietor must comply.  These less formal Variance proceeding processes have been used successfully for airports in San Diego and San Francisco among others.  Both the formal and informal proceedings provide ample opportunities for public participation and input.

The City effectively has three options for participation in the Variance proceeding:

1. To demand a formal trial-type hearing on the Variance before an administrative law judge; 

2. To seek CalTrans and the Authority�s agreement to enter into an informal Variance process with the objective of accomplishing the same purposes and securing the same conditions which might otherwise be issued through the formal process; or 

3. To support the Authority�s Variance application as is.

We recommend that the City should follow the informal Variance process as both less expensive and more apt to reach an agreeable conclusion.

Federal Legislation

One component of the Authority staff recommendation is that, while the Part 161 Study is temporarily shelved, the Authority seek new federal legislation to change the manner in which the FAA evaluates the costs and benefits of proposed noise rules.  City staff does not believe that the Authority approach is viable for a number of reasons including the fact that existing federal regulations already provide sufficient flexibility, that Congress almost never intervenes to change agency regulations on an area within the agency�s jurisdiction, and that, even if legislation were successful, it would not result in a curfew but merely in more process which would, at best, expedite the complex and uncertain road to a curfew.

City staff does believe that legislation can, at the appropriate time, be an effective mechanism for achieving a curfew.  But we believe that it is not prudent to suspend the Part 161 Study at this time and pursue legislation instead.  There are three principal reasons for this recommendation.

First, Congress is extremely unlikely to act, in any event, until or unless the Authority and the City can demonstrate that the Part 161 process is flawed and in need of legislative revision.  The fact that the Authority is no where near completion of the Part 161 Study would make this impossibly difficult to prove.

Second, because securing any federal legislation is difficult, time consuming and uncertain, should the Authority and the City seek legislation, it should be designed to achieve the ultimate goal � the imposition of curfew.  Legislation which merely reduces the procedural hurdles would not be worth the effort.

Third, City staff does not see any strategic advantage in suspending the Part 161 Study until the Authority has fully exhausted all prudent opportunities to convince the FAA to approve a curfew.  The whole Study process has been characterized by excessive expenditures and inexplicable delays.  City staff has simply heard no reasonable explanation for the fact that the Study is no where near complete even though CalTrans first ordered the Part 161 Study almost 8 years ago and the Study has been ongoing for 5 years.  In staff�s view, legislation should not replace the current effort until or unless it becomes clear that the Part 161 process is futile.

ATTACHMENTS

DRAFT REQUEST FOR VARIANCE FROM NOISE STANDARDS FOR CALIFORNIA AIRPORTS

go to the top