Petition for Writ of Certiorari — Friends of Richards-Gebaur Airport v. Federal Aviation Administration
Supreme Court brief2002
Ask Donna
What actually matters in this document.
Text
Wpreme Count, US
(\ FILED
OL 94y UC 1 6 2003
No. _QFFICE OF THE CLERK
t
In The
Supreme Court of the United States
+
FRIENDS OF RICHARDS-GEBAUR AIRPORT,
Petitioner,
Vs.
FEDERAL AVIATION ADMINISTRATION,
JANE GARVEY, ADMINISTRATOR;
CITY OF KANSAS CITY, MISSOURI;
THE KANSAS CITY SOUTHERN RAILWAY COMPANY,
Respondents.
+
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
2.
Vv
PETITION FOR WRIT OF CERTIORARI
+
James E. Ramsey
Counsel of Record
Coo.tinc & Hersers, P.C.
2400 City Center Square
1100 Main Street
Kansas City, MO 64105
(816) 474-0777
Attorney for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
2er
QUESTIONS PRESENTED
1. Under the National Environmental Protection Act
and supporting regulations and orders, the Federal Avia-
tion Administration (“FAA”) could not release Kansas
City from its aeronautical obligations on Richards-Gebaur
Memorial Airport for construction of a major rail-truck
intermodal facility at the airport without an environmen-
tal assessment or impact statement, unless it found that
the project was categorically excluded. Under environ-
mental laws and the FAA’s own published procedures, a
categorical exclusion cannot be granted if there is one or
more specified extraordinary circumstances present. Peti-
tioners identified several extraordinary circumstances
present in the Richards-Gebaur project, any one of which
would have precluded a categorical exclusion. Was the
FAA’s decision granting a categorical exclusion ny
and capricious?
2. Was the FAA required to follow its own pub-
lished standard procedures for granting categorical exclu-
sions?
3. May an agency such as the FAA disregard the
cumulative environmental impacts of a project when
granting a categorical exclusion?
4. May an agency such as the FAA disregard the
NEPA requirements to utilize an interdisciplinary
approach when granting a categorical exclusion?
li
PARTIES TO THE PROCEEDING
The parties to the proceeding are Friends of Rich-
ards-Gebaur Airport, Petitioner herein and Petitioner
below; City of Grandview, Missouri, a municipal corpora-
tion, and a petitioner below; Federal Aviation Adminis-
tration, Jane Garvey Administrator, Respondent herein
and below; City of Kansas City, Missouri, an Intervenor
on Appeal below; The Kansas City Southern Railway
Company, an Intervenor on Appeal below; and the Air-
craft Owners and Pilots Association, which filed an
Amicus Brief on behalf of Petitioner in the Court of
Appeals.
Additionally, a companion case, Aircraft Owners and
Pilots Association, Petitioner v. Federal Aviation Administra-
tion, Jane Garvey, Administrator, United States Department of
Transportation, Rodney E. Slater, Secretary, Respondent, The
Kansas City Southern Railway Company; and the City of
Kansas City, Missouri, Intervenors on Appeal, Case No.
00-1974, was consolidated with Friends of Richards-Gebaur
Airport, et al. v. Federal Aviation Administration, et al., in
the case below.
Petitioner, Friends of Richards-Gebaur Airport, is a
not-for-profit corporation made up of members affected
by the FAA’s actions. There is no parent or publicly held
company owning 10% or more of the corporation’s stock.
iil
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .......-----e+eeeeeeeeee: i
PARTIES TO THE PROCEEDING .........---+++++ ii
TABLE OF CONTENTS........---e ee ceeeeeeeceeees iii
TABLE OF AUTHORITIES ..........--02seeeeeeeees iv
I ccc ccbetcsesvevcestsavereeseeseveceens vi
PETITION FOR WRIT OF CERTIORARI.........--. 1
OPINIONS BELOW...........::eseece creer eeeeeees 1
JURISDICTION ......... 0: cece eee eee eee ees Evens 1
STATUTES, REGULATIONS AND ADMINISTRA-
J, 2o oy |. eee ro 2
STATEMENT OF THE CASE........----eeeeeeeeees 7
SST EET ET OTT ET ETE TTT gauge oF
Statutory And Regulatory Background ........... 10
Factual Background.........-..seeeee rere eee eeees 11
Decision of the Court of Appeals..........---+-- 12
TOMI 5 onc ccvccceccsvccceveceveccccccccvees 13
Deference to be Given to FAA Orders 1050.1D and
er eee eh eens eased pease ne ree se © 13
Cumulative Effects and Interdisciplinary Approach
ty ae er eee eee te et Seer ee
iv
TABLE OF AUTHORITIES
Page
Cases CITED:
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, tnc., 767 US. $73 (1998)... cc scccccscwese 9, 17
Christensen v. Harris County, 529 U.S. 576 (2000) ...8, 17
Rhodes v. Johnson, 153 F.3d 785 (7th Cir.
WO Sivan Cas buceeessceiccvisenesieee 9, 16, 18, 19
I oid cc cemensccekcownsee akeusaeeas 9, 16, 17, 18
STATUTES CITED:
| Bik * fs . BER er er re reer rary 2
Ge WG. B Gide dcc fesiiecevivsiea 2, 9, 30, 18, Zi, ZZ
OE TE, Be ikk iv cd cakieveveccuksctastieaen 2, 10
gif mee Fe BF PPC TST TTT Tree TTT Tere 1
ke FO, Se er rere rey ror rr rr ye 1, 8
OP Ten Ue as hb hbk 60 evieseades sends dercnsneuers 1
FEDERAL REGULATIONS CITED:
OO Ee eee 4, 20
OO 0 OS, oii ccdsas cities Heise 20
OCU CONS. BE 21
OU OG i iii isi ignnts 2, 10, 20, 21
we! eS er ree re eee 3, 10, 13, 14, 18
Vv
TABLE OF AUTHORITIES - Continued
Page
40 C.ER. § 1507.3........cecceeccececccccnecceeceees 10
40 C.ER. § 1508.4.........c cece ee eee ee eceecees 4, 10, 20
40 C.BR. § 1508.7.......0ccececcecereeececcees 4, 20, 21
FAA Orpers CITED:
tks renner rere rr err ert rer rer. passim
Order 1050.1D ] 32(f) .......cccccvccccscccsccccsese 15
Order 5050.4A (Airport Environmental Hand-
oki Sacre keeeedeserecveusasterauereasen passim
Order 5050.4A | 24f(2) ..... cc ccccccecceccccccevess 15
Order SOSOAA 9 DANO . 5-6. 050s is ieericseescesienes 15
MissouRI STATE REGULATIONS CITED:
10 C.S.R. 10 — 6.020(2)(A).....- ce cccccccrccececs 11.
10 C.S.R. 10 — 6.020(3)(A) Table 1 De Minimis
ee ere eres re 7; 4-50
vi
APPENDIX
Appendix A - Opinion dated June 11, 2001 on
Petitions for Review of an Order of the Federal
Aviation Administration ...............+-06- App. 1
Appendix B - Judgment dated June 11, 2001 on
Petitions for Review of an Order of the Federal .
Aviation Administration ..................45: App. 34
Appendix C — Categorical Exclusion Evaluation
and Determination for the Federal release of the
City of Kansas City, Missouri, from its Obliga-
tions to Maintain Aeronautical Use of Approxi-
mately 497 Acres of the Existing Richards-
Gebaur Airport, Kansas City, Missouri dated
SRUOGE Tay. RHEE vis siovcenssveesnesevavins App. 36
Appendix D - Order Denying Petition for Rehear-
ing and for Rehearing En Banc dated September
es er erry re App. 51
Appendix E - Declaration of Ed Melisky dated
SOE ZA, TOES x vce ccscescasincvesesccens App. 52
PETITION FOR WRIT OF CERTIORARI
Petitioner, Friends of Richards-Gebaur Airport,
respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Eighth Circuit in this case.
e
OPINIONS. BELOW
The Federal Aviation Administration Order that is
the subject of this matter, was issued December 23, 1999,
and is entitled: Categorical Exclusion Evaluation and Deter-
mination for the. Federal Release of the City of Kansas City,
Missouri, from its obligations to maintain aeronautical use of
approximately 497 acres of the existing Richards-Gebaur Air-
port, Kansas City, Missouri, and is reprinted in the Appen-
dix to this Petition. Pet.App. at 36.
The Eighth Circuit decision upholding the FAA
Order granting the categorical exclusion is reported at
251 F.3d 1178 (8th Cir. 2001) and is reprinted in Pet.App.
at 1.
JURISDICTION
The Federal Aviation Administration (FAA) issued
the Orders which are the subject of this Petition on
December 23, 1999, pursuant to 49 U.S.C. § 40101 et seq.
and 49 U.S.C. § 47101. These Orders were subject to
review by the Court of Appeals of the United States in
accordance with 49 U.S.C. § 46110. Petitioners timely filed
their Petition for Review on March 6, 2000. On June 11,
2000, the Court of Appeals affirmed the Federal Aviation
Administration Orders. On July 25, 2001, Petitioners filed
a Petition for Rehearing and Rehearing en banc, which
was denied on September 19, 2001. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1254(1). Since the
United States is a party, this petition is timely filed pur-
suant to Supreme Court Rule 13(1).
¢
STATUTES, REGULATIONS AND
ADMINISTRATIVE ORDERS
42 U.S.C. § 4332.
§ 4332. Cooperation of agencies: . . .
The Congress authorizes and directs that, to the
fullest extent possible: . . . (2) all agencies of the
Federal Government shall —-
(A) utilize a systematic, interdisciplinary
approach which will insure the integrated use of
the natural and social sciences and the environ-
mental design arts in planning and in decision-
making which may have an impact on man’s
environment.
42 U.S.C. § 4342
There is created in the Executive Office of the
President a Council on Environmental Qual-
ity... . ,
40 C.R.R. § 1507.2
§ 1507.2 Agency capability to comply.
. . . Agencies shall:
(a) Fulfill the requirements of sec. 102(2)(A) of
the Act to utilize a systematic, interdisciplinary
approach which will insure the integrated use of
the natural and social sciences and the environ-
mental design arts in planning and in decision-
making which may have an impact on the
human environment.
§ 1507.3 Agency procedures
(a). ... each agency shall consult with the Coun-
cil while developing its procedures and before
publishing them in the Federal Register for com-
ment. .. . The procedures shall be adopted only
after an opportunity for public review and after
review by the Council for conformity with the
Act and these regulations... .
(b) Agency procedures shall comply with these
regulations except where compliance would be
inconsistent with statutory requirements and
shall include:
(2) Specific criteria for and identification of
those typical classes of action:
(i) Which normally do require environmental
impact statements.
(ii) Which normally do not require either an
environmental impact statement or an environ-
mental assessment (categorical exclusions.
(§ 1508.4)).
(iii) Which normally require environmental
assessments but not necessarily environmental
impact statements.
40 C.FR. § 1508.4
§ 1508.4 Categorical exclusion.
“Categorical Exclusion” means a category of
° actions which do not individually or
cumulatively have a significant effect on the
human environment and which have been
found to have no such effect in procedures
adopted by the Federal agency in implementa-
tion of these regulations . . . and for which,
therefore, neither an environmental assessment
nor an environmental impact statement is
required. .. . Any procedures under this section
shall provide for extraordinary circumstances in
which a normally excluded action may have a
significant environmental effect.
40 C.FR. § 1508.7
§ 1508.7 Cumulative impact.
“Cumulative impact” is the impact on the envi-
ronment which results from the incremental
impact of the action when added to other past,
present and reasonably foreseeable future
actions regardless of what agency (Federal or
non-Federal) or person undertakes such other
actions. Cumulative impacts can result from
individually minor but collectively significant
actions taking place over a period of time.
49 C.FR. § 1105.6, Title 49 - Transportation
(a) Environmental Impact Statements will nor-
mally be prepared for rail construction pro-
posals other than those described in paragraph
(b)(1) of this section;
(b) Environmental Assessments will normally be
prepared for the following proposed actions;
(1) Construction of connecting track within exis-
ting rail rights-of-way, or on land owned by the
connecting railroads;
FAA Order 1050.1D.
4..
f.... the Office of Airport Planning and Pro-
gramming has its own environmental handbook,
Order 5050.A, which is consistent with Federal
environmental procedures contained in this
order. . .
32. EXTRAORDINARY CIRCUMSTANCES. Pro-
posed Federal actions, normally categorically
excluded, which have any of the following char-
acteristics shall be the subject of an environmen-
tal assessment.
b. An action that is likely to be highly controver-
. sial on environmental grounds.
f. An action that is likely to:
(2) Have a significant impact on air quality or
violate the local, state, or Federal standards for
air quality.
(4) Be inconsistent with any Federal, State, or
local law or administrative determination relat-
ing to the environment.
—_=—___.
|
FAA Order 5050.4A.
24. Extraordinary Circumstances. Proposed Fed-
eral actions which are normally categorically
excluded but which have any of the following
characteristics shall be the subject of an environ-
mental assessment.
b. An action that is likely to be highly controver-
sial on environmental grounds. A proposed Fed-
eral action is considered highly controversial
when the action is opposed on environmental
grounds by a Federal, state, or local government
agency...
f. An action that is likely to:
(2) Have a significant impact on air quality or
violate the local, state, or Federal standards for
air quality.
(4) Be inconsistent with any Federal, state, or
local law, or administrative determination relat-
ing to the environment.
10 Mo.Code State Regs. (C.S.R.). 10-6.020. Definitions and
Common Reference Tables.
(1) Application. This rule shall apply through-
out Missouri defining terms and expressions
used in all Title 10. Division 10 — Air Conserva-
tion Commission rules.
(2) Definitions.
(10) Significant - A net emissions increase
or potential to emit at a rate equal to or exceed-
ing the de minimis levels . . .
(3) Common Reference Tables.
(A) Table 1 —- De minimis Emissions Levels.
Air Contaminant Emission Rate
Carbon monoxide 100.0
Note: All rates are in tons per year.
+
STATEMENT OF THE CASE
Introduction
The United States transferred to Kansas City, Mis-
souri its interest in Richards-Gebaur Memorial Airport.
Kansas City was obligated to use the airport property for
aeronautical purposes unless released from those obliga-
tions by the Federal Aviation Administration. Kansas City
sought to use the property for a truck and rail intermodal
facility to be built by Kansas City Southern Railroad.
Based upon environmental documents provided by the
intermodal project proponent Kansas City Southern Rail-
road, the Federal Aviation Administration released Kan-
sas City from its aeronautical obligations in December
1999, finding that the release for the intermodal project
was categorically excluded from an environmental assess-
ment or an environmental impact statement. In making
this release, the Federal Aviation Administration relied
upon its “Airport Environmental Handbook” (FAA Order
5050.4A) published in support of and in compliance with
Policies and Procedures for Considering Environmental
Impacts, FAA Order 1010.1D. The Federal Aviation
Administration found that there were no extraordinary
circumstances present that would preclude the granting
of a categorical exclusion.
Petitioner identified several factors that constituted
extraordinary circumstances under the FAA Orders
1050.1D and 5050.4A, any one of which alone would
preclude the granting of a categorical exclusion under the
Federal Aviation’s orders. Pursuant to 49 U.S.C. § 46110,
Petitioner sought review in the United States Court of
Appeals for the Eighth Circuit. In the initial brief, Peti-
tioner, through its expert witness, identified an error in
the environmental reports, underestimating the air pollu-
tion effects of the truck and rail intermodal project by a
factor of over 300 times. Respondent FAA was permitted
to correct this error during the pendency of the proceed-
ing below. The corrected air pollution effects still exceed
the State of Missouri’s level required for significance.
Nevertheless, the FAA still maintained that the effects
would not be significant.
In upholding the FAA’s grant of the categorical exclu-
sion, the Eighth Circuit Court of Appeals’ decision, citing
Christensen v. Harris County, 529 U.S. 576 (2000), held that
the FAA Order 5050.4A was not binding upon the
Agency, because the order did not contain agency rulings
from adjudicatory proceedings or formal rule making and
that it was only to be accorded respect by the Court to the
extent the orders had power to persuade. This decision
by the Eighth Circuit conflicts with the Seventh Circuit
Court of Appeals decision in Rhodes v. Johnson, 153 F.3d
785 (7th Cir. 1998), wherein the court found that an
agency was bound by the provisions of its Environmental
Handbook.
After the Eighth Circuit’s decision, this Court issued
its decision in United States v. Mead Corporation, 533 U.S.
218 (2001), that expressed a more expansive view of
which agency orders are entitled to Chevron deference.
See: Chevron U.S.A., Inc. v. Natural Resources Defense Coun-
cil, Inc., 767 U.S. 873 (1998). The Petitioner then sought
rehearing from the Eighth Circuit. The Petition for
Rehearing was denied. -
When the FAA granted the categorical exclusion, it
also failed to properly consider the cumulative impacts of
the project and to use an interdisciplinary approach. This
is contrary to 42 U.S.C. § 4332 and regulations of the
Council for Environmental Quality. If these provisions
had been followed, a categorical exclusion could not have
been granted.
It is a major question of Federal environmental law
whether or not agencies must use an interdisciplinary
approach and consider cumulative impacts when consid-
ering categorical exclusions. Such agencies should not be
free to ignore or evade the statutory and regulatory
requirements relating to cumulative effects and an inter-
disciplinary approach in finding projects categorically
excluded.
10
Statutory And Regulatory Background
Under the National Environmental Policy Act
(NEPA), all agencies of the federal government are
required to use a systematic interdisciplinary approach in
planning and decisionmaking. 42 U.S.C. § 4332. NEPA
created the Council for Environmental Quality (CEQ),
which promulgates regulations implementing NEPA. 42
U.S.C. § 4342. These regulations require all federal agen-
cies to adopt implementing procedures, 40 C.F.R.
§ 1507.3, and to use a systematic interdisciplinary
approach. 40 C.F.R. § 1507.2. These regulations also
require the agencies to set forth provisions for categorical
exclusions for actions that individually or cumulatively
do not have a significant effect on the environment, and
extraordinary circumstances in those instances when a
normally excluded action may have a significant environ-
mental effect. Id. at 40 C.F.R. § 1508.4.
CEQ required each agency to develop procedures
that were to be published in the Federal Register for
comment. 40 C.F.R. § 1507.3(a). CEQ further required that
these procedures include provisions for categorical exclu-
sions. Id. at (b).
The Federal Aviation Administration issued Order
1050.1D to establish “Federal Aviation Administration
(FAA) policies and procedures for the preparation of
Environmental Impact Statements (EISs) and Findings of
No Significant Impact (FONSIs) and for preparing and
processing environmental assessments of FAA actions.
Order 1050.1D also set forth categorical exclusions and
extraordinary circumstances in Chapter 3, {J 31-32. FAA
Order 1050.1D. FAA Order 5050.4 is the Environmental
11
Handbook of the Federal Aviation Office of Airport Plan-
ning and Programming and “is consistent with Federal
Environmental Procedures contained in [Order 1050.1D].”
See 1050.1D at I 4.f. Order 5050.4A contains the same
categorical exclusions and extraordinary circumstances as
does Order 1050.1D. Changes to Order 1050.1 are pub-
lished in the Federal Register for public comment and
review.
Missouri Regulation 10 C.S.R. 6.020(2) states that a
net emissions increase or potential to emit at a rate equal
to or exceeding the de minimis levels is significant. 10
C.S.R. 10-6.020(2). Table 1 of 10 C.S.R. 10-6.20(3)(A) sets
the de minimis levels for carbon monoxide at 10€ tons per
year.
Factual Background
On August 21, 1985, under the Surplus Property Act
of 1944, the United States of America released and trans-
ferred to the City of Kansas City, its interest in Richards-
Gebaur Memorial Airport. By accepting the Richards-
Gebaur Airport and Federal funds over the years, Kansas
City assumed obligations to use the airport for aeronauti-
cal purposes. See Pet. App. at 3.
Kansas City requested release from its federal obliga-
tions on Richards-Gebaur Airport so it could transfer the
airport to the Kansas City Southern Railroad Company
for construction and operation of a truck-rail intermodal
facility by Kansas City Southern Railroad Company. On
October 22, 1999, Kansas City submitted an environmen-
tal document prepared by the Railroad’s contractor,
TranSystems, for the FAA to document a categorical
12
exclusion. On December 3, 1999, Kansas City submitted
additional documentation requested by the FAA.
On December 20, 1999, the FAA was advised by
e-mail that the neighboring cities of Belton and Grand-
view objected to the intermodal project on environmental
grounds. On December 21, 1999, the Kansas City Aviation
Department submitted a letter to the FAA requesting
immediate release of its obligations on the Richards-Geb-
aur Memorial Airport property. By a letter dated Decem-
ber 22, 1999, City of Grandview Mayor Wilson notified
the FAA of Grandview’s continuing environmental objec-
tions to the intermodal facility. The FAA Order finding a
categorical exclusion and releasing Kansas City from its
aeronautical obligations was issued on December 23,
1999.
Decision of the Court of Appeals
The Court of Appeals found that, although the FAA
had, consistent with CEQ regulations, promulgated a list
of categorical exclusions and characteristics amounting to
extraordinary circumstances consistent with CEQ regula-
tions, in the form of FAA Order 5050.4A, the Order did
not contain agency rulings resulting from adjudicatory
adversary proceedings or formal rule making. Therefore,
according to the Court, the FAA order was not entitled to
Chevron-style deference. The court then went on to find
that there were no extraordinary circumstances, in spite
of several instances when extraordinary circumstances
were clearly present under the plain language of FAA
Order 5050.4A.
|
iia
13
In addition, although the truck-rail intermodal pro-
ject will involve the construction of four railroad tracks
within the airport property, as well as up to nine addi-
tional future tracks, the Court of Appeals found that the
FAA did not categorically exclude the construction of
railroad tracks, and that the issue relating to the construc-
tion of railroad track was not properly before the Court.
This is in direct contravention to the NEPA statute and
regulations which require that cumulative impacts be
considered when granting categorical exclusions and that
the agencies use interdisciplinary approaches in making
environmental decisions.
ARGUMENT
Deference To Be Given to FAA Orders 1050.1D and
5050.4
The improper use of categorical exclusions permits a
major agency decision, that might affect the environment
in a significant manner, to escape proper review. In
response to CEQ regulations, agencies have set up their
own internal regulatory provisions to permit the granting
of categorical exclusions, together with a safeguard to
identify those projects which involve extraordinary cir-
cumstances, and which would preclude the granting of a
categorical exclusion. 40 C.F.R. § 1507.3. The-existence of
these pre-existing procedures helps to ensure that federal
projects affecting the environment do not escape proper
review. The application of these pre-established adminis-
trative procedures by each of the agencies is necessary to
14
ensure consistency in the application of NEPA and pre-
vent arbitrary decision making by agencies.
The Federal Aviation Administration procedures
established pursuant to 40 C.F.R. § 1507.3 include the
categorical exclusions and are contained in FAA Order
1050.1D and FAA Order 5050.4.
In this instance at bar, there were obvious specific
factors constituting extraordinary circumstances, militat-
ing against use of the categorical exclusion. The most
significant examples were air quality and local govern-
ment opposition, which were essentially ignored by the
FAA and by the United States Court of Appeals for
Eighth Circuit. Both found that there was not a significant
impact on the environment on these matters, although
such findings clearly violated the terms of FAA Orders
1050.1D and 5050.4. Had the FAA and the Eighth Circuit
Court of Appeals followed the Federal Aviation Adminis-
tration Environmental Handbook and Orders, the cate-
gorical exclusion would not have been granted, since
there would have been a finding of an extraordinary
circumstance with respect to air quality, and local contro-
versy.
Air Quality
On April 10, 2000, after Petitioner had filed the Peti-
tion for Review, the FAA supplemented its documenta-
tion relating to air pollution to correct a mathematical
miscalculation in its original analysis. The FAA learned of
this initial error, which underestimated the pollution by a
factor of 300, from an expert witness for Petitioner who
had identified the error. After this error was corrected,
15
the FAA still acknowledged that carbon monoxide (CO)
resulting from the proposed intermodal facility in the
year 2018 would be 129 tons per year. See Declaration of
Ed Melisky. Petition App. at 52. This level by definition
violates state standards for air quality, whereby any CO
emissions over 100 tons per year are significant. This
undisputed fact alone constitutes an extraordinary cir-
cumstance precluding a categorical exclusion.
Pursuant to FAA Order 1050.1D ¥ 32.(f)2 and Order
5050.4A { 24f(2), federal actions normally categorically
excluded which have a significant impact on air quality or
violate local, state or federal standards for air quality shall be
the subject of an environmental assessment. It is also an
extraordinary circumstance precluding a categorical
exclusion if the proposed action is “inconsistent with any
Federal, State, or Local law or administrative determina-
tion relating to the environment.” Order 1050.1D { 32(f)4;
and Order 5050.4A at { 24f(4). Missouri Regulation 10
C.S.R. 10-6.020(2) states that an emission equal to or
exceeding the de minimis level, 100 tons per year for CO
(Table 1, 10 C.S.R. 10.6.020(3)) is significant. The CO level
accepted by the FAA is 129% of this level.
The Eighth Circuit did not even address this issue,
other than to repeat the FAA’s assertion that the air
quality effects do not rise to a significant level. That is
directly contrary to Missouri regulations which, under
Orders 1050.1D and 5050.4A, must be considered. If the
FAA environmental Orders 1050.1D and 5050.4A, had
been followed by the FAA, this extraordinary circum-
stance would have been properly identified and a cate-
gorical exclusion would not have been granted. Similarly,
had the Court of Appeals given the FAA environmental
16
orders the deference to which they were entitled by Mead,
the FAA’s finding of a categorical exclusion would not
have been upheld.
Objection by Grandview
The FAA ignored a letter by the Mayor of the City of
Grandview challenging the action on environmental
grounds. The Court of Appeals also rejected this letter
from Grandview as being “too little and far too late”. Pet.
App. at 13. Under the FAA Environmental Handbook,
Order 5050.4A, a categorical exclusion cannot be granted
when the action opposed on environmental grounds is
likely to be highly controversial. “A proposed Federal
action is considered highly controversial when the action
is opposed on environmental grounds by a. . . local
government agency.” FAA Order 5050.4 { 24b. The FAA
Order does not specify a time limit in which the objection
by the local government must be put forth. The FAA was
aware of Grandview’s objection before it issued the cate-
gorical exclusion. Thus, under the plain language of the
FAA Order, a categorical exclusion cannot be granted.
See: Rhodes v. Johnson, 153 F.3d 785, 790 (7th Cir. 1998).
Furthermore, in asserting that Grandview’s objection
was too late, the Eighth Circuit noted that a public pro-
ceeding had been ongoing for approximately two years.
Pet. App. at 13. This proceeding, however, was not an
officially noticed proceeding. Any hearings that were
held were ad hoc meetings held by the project proponents
and their attorneys. Pet. App. at 40-41. The environmen-
tal reports used to support the airport transfer and inter-
modal project were not submitted until October 22, 1999.
17
They were only made available to the Petitioners as a
result of a Freedom of Information Act request. There-
fore, Grandview did not delay in submitting its objection
in December, 1999. As with the air quality issue, had the
FAA environmental orders been given proper deference,
a categorical exclusion would not have applied. Pet. App.
at 5.
In finding that air quality and this objection by the
City of Grandview were not extraordinary circumstances
and that they did not have a significant effect, the Eighth
Circuit stated that the FAA Environmental Handbook,
Order 5050.401A was not entitled to Chevron deference,
but was only entitled to respect from the Court to the
extent it had the power to persuade. Pet. App. at 29. In
reaching this conclusion, the Eighth Circuit relied upon
this Court’s decision in Christensen v. Harris County, 529
U.S. 576 (2000). The Eighth Circuit found that, since the
Order did not contain agency rulings as the result of
adjudicatory adversary proceedings or formal rule mak-
ing, it was not entitled to Chevron-style deference. Pet.
App. at 10.
After the decision in this matter by the Eighth Cir-
cuit, but before denial of Petitioner’s Petition for Rehear-
ing, this Court entered its decision in United States v.
Mead Corporation, 533 U.S. 218, 121 S.Ct. 2164 (2001). In
Mead, this Court held that:
[A]dministrative implementation of a particular
statutory provision qualifies for Chevron defer-
ence when it appears that Congress delegated
authority to the agency generally to make isles
carrying the force of law, and that the agy icy
18
interpretation claiming deference was promul-
gated in the exercise of that authority. Delega-
tion of such authority may be shown in a variety
of ways, as by an agency’s power to engage in
adjudication or notice and comment rule mak-
ing or by some other indication of comparable
congressional intent. Id. at __, 2171.
In this instance, Congress required that federal agen-
cies develop procedures and methods in consultation
with CEQ to implement the congressional plan under
NEPA, 42 U.S.C. § 4332. Further, CEQ regulations require
each agency to consult with CEQ in developing its pro-
cedures, and to publish its procedures for public com-
ment in the Federal Register. 40 C.F.R. § 15.07.3(a).
Clearly, in this instance, the criteria enunciated in Mead
for Chevron deference are present. Thus, pursuant to this
Court’s pronouncements in Mead, the FAA’s Environmen-
tal Orders 5050.4A and 1050.1D are to be given Chevron
deference.
Had these Orders been properly followed by the FAA
and by the Court of Appeals, by applying Chevron defer-
ence, a categorical exclusion would not have been per-
missible in this matter.
The Seventh Circuit was faced with a similar situa-
tion involving the U.S. Forest Services Environmental
Handbook in Rhodes v. Johnson, 153 F.3d 785 (7th Cir.
1998). In Rhodes, there were two extraordinary circum-
stances present that might have had a significant environ-
mental effect. Under the Forest Service’s interpretation,
once it had concluded, after an internal review, that the
extraordinary circumstance would not have a significant
impact on the environment, it contended that it did not
19
have to prepare any further environmental studies. Id. at
789. In ruling against the Forest Service, the Rhodes court
stated:
We conclude that the presence of an extraordin-
ary circumstance requires the Forest Service to
prepare an environmental assessment. This is
compelled by the plain language of the Environmen-
tal Handbook. The flow chart unambiguously sets
out two possible paths when a categorical exclu-
sion applies: Either the proposed actions ‘has no
extraordinary circumstances’ and so no further
analysis is required, or it has extraordinary cir-
cumstances in which an environmental assess-
ment is required. Id. at 789. [emphasis added].
It is not enough that the Forest Service has
conducted an internal review to determine
whether the extraordinary circumstance will
cause the proposed action to have a significant
impact on the environment. An environmental
assessment is a process required to make that
interpretation. Id. at 789.
Had the Eighth Circuit ruled consistently with the
Seventh Circuit, the FAA’s granting of a categorical exclu-
sion would have been reversed.
If the agencies are permitted to deviate from their
environmental orders that were published under the
requirements of NEPA and CEQ regulations, then the
integrity of the NEPA procedures will be lost. Further,
meaningful judicial review would be impossible. Once
the agencies publish their orders with their procedures,
they must be followed until properly amended.
20
Otherwise, categorical exclusions could make NEPA pro-
grams ineffective.
Cumulative Effects and Interdisciplinary Approach
Although an agency is required to consider cumula-
tive effects of a proposed action, and to use an inter-
disciplinary approach, the FAA did not consider the
effect of the railroad’s participation, and the FAA did not
address or consider the appropriate regulations requiring
consideration of cumulative effects and use of an inter-
disciplinary approach which it was required to consider.
40 C.FR. §§ 1507.2, 1508.4, and 1508.7, and 49 C.FR.
§ 1105.6. Had these regulations been properly applied, a
categorical exclusion could not have been granted.
The intermodal project will involve the construction
of four (4) intermodal tracks within the airport property,
as well as up to nine (9) additional future tracks. Also, an
automobile loading facility with its own separate tracks
was to be constructed. There was also a proposed realign-
ment of main track that would take it outside of the
railroad’s right of way and onto the airport property.
Passing and siding tracks are also proposed. The purpose
of all this track was to serve an area which has not
previously been served by the railroad. Before now, there
was only one track in which the railroad passed through
the area. Since additional track will be added within the
airport land area, which is not within the existing railroad
right of ways, a full environmental impact statement is
required. 49 C.F.R. § 1105.6(a)(b).
The FAA contended that it did not categorically
exclude the construction of the railroad track. The court
21
agreed with the FAA that the issue relating to the railroad
track construction was not a question properly before the
Court of Appeals at this time. Pet. App. at 25. The
cumulative effects of the railroad construction should
have been considered using the regulations applicable to
railroad projects. If they had, the project would not have
been categorically excluded.
This position taken by the FAA and the Court of
Appeals is directly contrary to the requirements of 42
U.S.C. § 4332(a) and CEQ regulations 40 C.FR. § 1508.7,
40 C.F.R. § 1507.2(a). The definition of categorical exclu-
sion is a “category of action which do not individually or
cumulatively have a significant effect on the human envi-
ronment.” 40 C.F.R. § 15.04. [emphasis added]. The
approach taken by the FAA and the Court is a classic case
of segmentation contrary to NEPA. Congress instructed
agencies not to selectively ignore the cumulative effects
of a project based on agency jurisdiction. This is directly
contrary to 42 U.S.C. § 4332.
¢
NEED FOR WRIT OF CERTIORARI
In reaching this decision in the underlying case, the
United States Court of Appeals for the Eighth Circuit
entered a decision directly in conflict with the United
States Court of Appeals for the Seventh Circuit, with
respect to the deference to be given to agency procedures
established pursuant to NEPA. This is an important mat-
ter which directly affects the proper and effective admin-
istration of national environmental policy and executive
implementation of congressional intent. This issue also
22
affects the general application of many administration
orders and procedures.
The United States Court of Appeals for the Eighth
Circuit has also effectively decided that when reviewing
and granting categorical exclusions, the agency need not
consider cumulative impacts or use an interdisciplinary
approach. This is contrary to 42 U.S.C. § 4332 and CEQ
regulations. It is an important matter of federal law
which should be decided by this Court.
4
CONCLUSION
For the foregoing reasons, Petitioner respectfully
submits that this Petition for Writ of Certiorari should be
granted.
Respectfully submitted,
’ James E. RAMsEy
Counsel of Record
Coo.tinGc & Hersers, P.C.
2400 City Center Square
1100 Main Street
Kansas City, MO 64105
(816) 474-0777
Attorney for Petitioner
App. 1
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 00-1050
Petitions for
Review of an Order
of the Federal
Aviation
Administration.
Friends of Richards-
Gebaur Airport; City of
Grandview, Missouri, a
Municipal corporation,
Petitioners,
Vz.
Federal Aviation
Administration, Jane
Garvey, Administrator,
Respondent.
City of Kansas City,
Missouri; The Kansas
Southern Railway
Company,
Intervenors on Appeal.
Aircraft Owners and
Pilots Association,
Amicus on Behalf
of Petitioner.
* £* &® &©* © & & & HH © HF HF HF HF HF HF HF HF HF FF HF HF HF F
App. 2
No. 00-1974
Aircraft Owners and
Pilots Association,
Petitioner,
Vv.
Federal Aviation
Administration, Jane
Garvey, Administrator;
United States Department
of Transportation, Rodney
E. Slater, Secretary,
Respondents.
The Kansas City Southern
Railway Company; City of
Kansas City, Missouri,
Intervenors on Appeal.
+ &£+ & + $F HH HF HF HF HH HH Hh HF Hh HH F
Submitted: June 13, 2000
Filed: June 11, 2001
Before LOKEN, BRIGHT, and HANSEN, Circuit Judges.
HANSEN, Circuit Judge.
The Friends of Richards-Gebaur Airport (Friends)
and the City of Grandview, Missouri (Grandview), filed a
Se ee ee a
App. 3.
petition for judicial review of an order of the Federal
Aviation Administration (FAA) releasing airport prop-
erty, challenging the order on environmental grounds.
Consolidated with their petition is the separate petition
of the Aircraft Owners and Pilots Association, challeng-
ing the FAA’s statutory authority to make the release.
After carefully considering the administrative record, we
deny both petitions for review and affirm the order of the
FAA.
I.
The Richards-Gebaur Airport was built in 1941 on
land owned by the City of Kansas City, Missouri (city). In
1955, the city deeded the property free of charge to the
United States Air Force for use as a permanent military
base. The Air Force deactivated the base in 1976, declar-
ing approximately 1,362 acres as surplus property. Since
then, it has been a public use general aviation airport
primarily serving small privately owned aircraft. In
August 1985, the United States conveyed the property
back to Kansas City, pursuant to the Surplus Property
Act, see 49 U.S.C. § 47151 (1994). This conveyance
required the city to use the property as a public use
airport. Between 1986 and 1994, the city had accepted
approximately $12.2 million in federal Airport Improve-
ment Program funds for airport development, and each
grant required the city to give written assurances that the
airport would be available to the public for aeronautical
use.
For several years, the Richards-Gebaur Airport had
consistently lost money. Between 1983 and 1997, losses
App. 4
exceeded $18 million and were subsidized by the city’s
two commercial airports. The airport’s losses were pro-
jected to continue at more than $1.5 million annually. In
1997, in an effort to pursue an opportunity to redevelop
the land into a new intermodal rail-truck freight distribu-
tion center,1 Kansas City submitted an application to the
FAA requesting permission to close the airport and seek-
ing to be released from its federal obligations and assur-
ances to maintain the property for public aeronautical use
under the Surplus Property Act and the Airport Improve-
ment Program.
The FAA and Kansas City negotiated a memorandum
agreement dated July 1998, in which the FAA concluded
that the terms it attached to the release and closure of the
airport would result in a net benefit to aviation. The FAA
found that although the facility was maintaining opera-
tion as a general aviation airport, it was able to do so only
at substantial losses which were heavily subsidized by
Kansas City’s other commercial airports, draining funds
otherwise available to those facilities. The FAA found
that this financial burden was not necessary in a metro-
politan area served by several other airports that remain
available to general aviation. The memorandum agree-
ment required Kansas City to deposit $5 million into an
escrow account to be dispersed by the FAA for federally
1 “It is a goal of the United States to develop a national
intermodal transportation system that transports passengers
- and property in an efficient manner.” 49 U.S.C. § 47101(b)
(1994). “A national intermodal transportation system is a
coordinated, flexible network of diverse but complementary
forms of transportation that transports passengers and property
in the most efficient manner.” Id. § 47101(b)(3).
App. 5
eligible aviation improvement projects in the Kansas City
area.? The city also agreed that for 20 years, it would
deposit all net proceeds from the projected lease of the
property into its aviation account for use solely for speci-
fied and general aviation projects. It agreed to notify the
FAA of each disbursement from the net proceeds account
and to permit the FAA to audit the account.
On February 22, 1999, the Kansas City City Council
by ordinance approved a 50-year lease for development
of the facility by the Kansas City Southern Railway Com-
pany (KCSR). The voters of Kansas City approved the
ordinance in a referendum vote on August 3, 1999. On
October 22, 1999, Kansas City submitted an Environmen-
tal Documentation Report, supported by exhibits, demon-
strating that the development does not present any
extraordinary circumstances that would require further
environmental assessment.
In a letter dated December 23, 1999, the FAA released
Kansas City from its federal obligations to maintain the
property as an airport, allowing the city to close the
airport and maintain the property as nonaeronautical,
2 An amended memorandum of agreement was negotiated
on March 20, 2000, to respond to the possibility that Kansas City
would build (within five years) a replacement general aviation
airport on the site. Other provisions of the agreement, however,
remain identical to the first negotiated agreement, except that
the release was modified to release initially only two parcels of
land totaling 497 acres of the entire 1,362- acre property from the
obligation to continue to use them for airport use. Those two
parcels consisted of the existing airfield itself and related
property which would, in turn, be used for the planned
intermodal facility.
App. 6
revenue-producing property of the Kansas City Aviation
Department consistent with the memorandum of agree-
ment. The FAA prepared no formal environmental anal-
ysis of this proposed action but considered several
pertinent environmental factors before concluding that
the closure was categorically excluded from the require-
ment of preparing an environmental assessment. The
FAA issued its categorical exclusion evaluation on the
same date as the letter releasing the airport property.
The record indicates that the public had an oppor-
tunity to participate in and comment on the proposed
redevelopment throughout the more than two years in
which the application was pending before the FAA.
Thirty-five public meetings were held in a variety of
locations in addition to open public meetings before the
Kansas City City Council. Four of the public meetings
were held in the neighboring City of Grandview, and
there was substantial media coverage of the proposed
redevelopment. A small number of citizens wrote letters
opposing the project on a variety of grounds, and a group
of pilots formed the opposition group known as the
Friends of Richards-Gebaur Airport. On the very after-
noon that the FAA issued its release, the FAA received a
faxed letter from the Mayor of Grandview expressing
opposition to the release on environmental grounds, but
this was the only opposition from any governmental
agency throughout the two-year application process.
Pursuant to 49 U.S.C. § 46110 (1994), the Friends and
Grandview filed in this court a petition for judicial
review of the FAA’s action, challenging the FAA’s deci-
sion to categorically exclude the closure of this airport
from the requirement of preparing an environmental
liam
App. 7
assessment. The Aircraft Owners and Pilots Association
also petitioned for judicial review, asserting that the FAA
failed to satisfy the standards of the Surplus Property Act
and lacked authority to release Kansas City from its fed-
eral obligations. We consolidated these petitions for pur-
poses of briefing and argument, and permitted Kansas
City and the Kansas City Southern Railway Company to
intervene in support of the FAA’s decision.
Il.
A court of appeals reviewing a petition for judicial
review of an order of the FAA “has exclusive jurisdiction
to affirm, amend, modify, or set aside any part of the
order.” 49 U.S.C. § 46110(c). In reviewing an order under
this section, the court may consider only those objections
made in the agency proceeding, unless there was a rea-
sonable basis for not making the objection earlier. See id.
§ 46110(d). The statute mandates that the agency’s find-
ings of fact are conclusive as long as they are supported
by substantial evidence. See id. § 46110(c). Because
§ 46110 does not specifically enunciate a standard for
reviewing the FAA’s nonfactual determinations, we turn
to the Administrative Procedure Act (APA) for the appro-
priate standard. See 5 U.S.C. § 706. The APA prescribes
that an agency action is unlawful and may be set aside if
it was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. § 706(2)(A). In
sum, while our factual inquiry on the record must be
“searching and careful,” our scope of review is quite
narrow; we are “not empowered to substitute [our own]
judgment for that of the agency.” Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). We
App. 8
“a
determine merely “ ‘whether the decision was based on a
consideration of the relevant factors and whether there
has been a clear error of judgment.’” Downer v. U.S. by
and Through U.S. Dep’t of Agric. and Soil Conservation, 97
F.3d 999, 1002 (8th Cir. 1996) (quoting Marsh v. Oregon
Natural Res. Council, 490 U.S. 360, 378 (1989)).
The petitioners essentially challenge two agency
decisions. First, they challenge the FAA’s decision to cate-
gorically exclude the proposal to close the airport from
the requirement of preparing an environmental assess-
ment under the National Environmental Policy Act
(NEPA), 42 U.S.C. §§ 4321-4370d (1994). Second, they
challenge the FAA’s decision to grant Kansas City a
release from its federal obligations to maintain the prop-
erty as an airport.
A. Categorical Exclusion
We begin with the environmental challenge. The
Friends and Grandview contend that the FAA abused its
discretion by not taking a hard look at the environmental
impact of its decision as required by NEPA. See 42 U.S.C.
§ 4332(2). NEPA requires federal agencies taking major
federal actions that significantly affect the quality of the
human environment to prepare a detailed environmental
impact statement considering the effects of and alterna-
tives to the proposed action. See id. § 4332(2)(C). The
environmental impact statement requirement ensures that
agencies “take a ‘hard look’ at the environmental conse-
quences of a project before taking a major action.” Friends
of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115
(8th Cir. 1999) (internal quotations omitted).
App. 9
NEPA’s Council on Environmental Quality (CEQ) has
promulgated regulations to provide federal agencies with
guidance for complying with NEPA’s requirements. See 40
C.F.R. §§ 1500-1517. The regulations encourage agencies
to document an environmental assessment, briefly pro-
viding the agency with sufficient evidence to determine
whether the proposed agency action has no significant
impact on the environment or whether the action has a
significant impact that requires the preparation of a
detailed environmental impact statement under NEPA.
See 40 C.F.R. § 1508.9. The regulations also provide that
agencies may categorically exclude certain types of fed-
eral activities from this case-by-case environmental
assessment review. See id. § 1500.4(p) (requiring agencies
to reduce paperwork in part by using categorical exclu-
sions to define categories of actions that do not have a
significant impact on the environment and are therefore
exempt from NEPA’s requirement to prepare an environ-
mental impact statement); § 1507.3(b)(2)(ii) (requiring
agencies to develop specific criteria for identifying cate-
gorical exclusions).
The CEQ regulations define categorical exclusions as
“a category of actions which do not individually or
cumulatively have a significant effect on the human envi-
ronment and which have been found to have no such
effect in procedures adopted by a Federal agency in
implementation of these regulations.” Id. § 1508.4. For
actions falling within a categorical exclusion, neither an
environmental assessment nor an environmental impact
statement is required. See id. The regulations require that
an agency must also consider exceptions to the categori-
cal exclusions by listing “extraordinary circumstances in
App. 10
which a normally excluded action may have a significant
environmental effect,” thus requiring the preparation of
an environmental assessment. Id.
Consistent with these CEQ regulations, the FAA pro-
mulgated a list of categorical exclusions and characteris-
tics amounting to extraordinary circumstances, which are
set forth in the Airport Environmental Handbook, FAA
Order 5050.4A. (See Petitioners’ App. at 900-903.) The
federal release of airport land is listed in the Handbook
as an action that is categorically excluded from the
requirement of preparing a formal environmental assess-
ment. (See id. at 901; FAA Order 5050.4A, J 23(10).) Rele-
vant factors listed as extraordinary circumstances include
any action that is likely to (1) have an effect on property
protected under the Historic Preservation Act, (2) be
highly controversial on environmental grounds, (3) be
highly controversial with respect to the availability of
relocation housing, (4) cause a significant increase in
surface congestion, or (5) have a significant impact on
noise levels or air quality. (Petitioners’ App. at 902; FAA
Order 5050.4A, J 24.) FAA Order 5050.4A is an interpre-
tive agency order. Because it does not contain agency
rulings reached as a result of adjudicatory adversary
proceedings or formal rule making, it is not entitled to
Chevron-type deference, but the order is nevertheless
accorded respect by the courts to the extent it has the
power to persuade. See Christensen v. Harris County, 120
S.Ct. 1655, 1662-63 (2000); Skidmore v. Swift & Co., 323 U.S.
134, 139-40 (1944); see also Drake v. Honeywell, Inc., 797
F.2d 603, 607 (8th Cir. 1986) (stating that interpretive rules
provide guidance to parties and “carry no more weight
on judicial review than their inherent persuasiveness
App. 11
commands”) (internal quotations omitted). The FAA’s
Airport Environmental Handbook, “while not controlling
upon the courts by reason of [its] authority, do[es] consti-
tute a body of experience and informed judgment to
which courts and litigants may properly resort for guid-
ance.” Skidmore, 323 U.S. at 140.
The petitioners do not argue that the federal release
of airport land is an action that cannot be categorically
excluded from the environmental assessment require-
ment, and we have no reason to doubt the agency’s
informed decision in this matter. Instead, they contend
that the FAA failed to adequately consider all of the
relevant extraordinary circumstances that would prevent
the use of the categorical exclusion in this particular case.
The FAA documented its categorical exclusion eval-
uation in this case in which it considered and discussed
the relevant extraordinary circumstances listed in FAA
Order 5050.4A. Specifically, the FAA considered the effect
of the proposed action on property subject to the
National Historic Preservation Act, the potential noise,
air quality, and water quality consequences of the action,
its effect on farmlands, whether the action was highly
controversial on environmental grounds, its effect on the
natural environment, the availability of relocation hous-
ing, the potential community disruption, the cumulative
impact of the action (including the project's effect on air
quality and surface traffic congestion), and other relevant
aspects likely to be at issue with this project” The FAA
concluded that based upon its evaluation of the likely
impacts of the proposed action, no extraordinary circum-
stances existed to preclude a categorical exclusion of this
“
App. 12
action from the environmental assessment requirement.
(See Petitioners’ App. at 31.)
We review an agency’s determination that an action
falls within a categorical exclusion under the arbitrary
and capricious standard. See Alaska Ctr. for the Env’t v.
United States Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999).
The Friends and Grandview contend that the FAA acted
arbitrarily and capriciously in determining the categori-
cal exclusion applied, asserting that several extraordinary
circumstances required the FAA to take a closer look by
‘completing an environmental assessment. We consider
each challenged extraordinary circumstance in turn.3
1. Highly Controversial on Environmental Grounds
The petitioners assert that the release of airport prop-
erty was highly controversial on environmental grounds.
The FAA’s order states that a proposed action is highly
controversial on environmental grounds (thus requiring
the preparation of an environmental assessment) when
the action is opposed on environmental grounds by a
3 We do not reach the petitioners’ allegations that the FAA’s
decision to release the property was preordained and the
outcome predetermined. Our review of the extra-record
affidavits relied on by the petitioners in an attempt to prove bad
faith or improper motives on the part of the FAA convinces us
that they do not rise to the level of the ” ‘strong showing of bad
faith or improper behavior’ ” which would permit us to look
behind the decision and overcome the presumption of
regularity accorded agency action. Newton County Wildlife Ass'n
v. Rogers, 141 F.3d 803, 807 (8th Cir. 1998) (quoting Overton Park,
401 U.S. at 420).
App. 13
government agency or a substantial number of the per-
sons affected by the action. (See Petitioners’ App. at 902;
FAA Order 5050.4A, ¥ 24(b).) The FAA found no signifi-
cant environmental opposition.
The petitioners assert that the FAA completely
ignored the faxed letter from the Mayor of Grandview
challenging the action on environmental grounds. The
FAA received no governmental environmental opposition
until it received the mayor’s letter on the very day it
issued its decision and its supporting extraordinary cir-
cumstances evaluation. Regardless of any dispute over
the timing of when FAA officials actually received the
letter during that day, we consider this one letter of
governmental opposition to be too little, and far too late
in a public proceeding that had been ongoing for approxi-
mately two years. Thus, the FAA did not act arbitrarily or
capriciously by concluding that there was no govern-
mental opposition to the action.
Concerning citizen opposition, the FAA noted that it
received 65 citizen letters opposing the project, of which
only approximately 20 expressed environmental con-
cerns. Even considering all of the opposing letters, how-
ever, the FAA concluded that this number was
insufficient to constitute substantial opposition on envi-
ronmental grounds where the population of the area most
affected (the communities of Belton and Grandview)
exceeds 40,000. The agency determination that 65 letters
opposing the project (most of which did not voice envi-
ronmental concerns) did not constitute a substantial con-
troversy on environmental grounds is not arbitrary on
this record.
App. 14
The petitioners argue the FAA ignored evidence that,
although the residents of Kansas City as a whole voted by
referendum to pass an ordinance authorizing the city to
proceed with the project, the majority of voters in wards
closest to the airport voted “no,” and the citizens of
Belton and Grandview, the areas most affected, had no
vote. The petitioners assert that these circumstances
reflect a concern that the project was highly controversial
on environmental grounds. We disagree. Although the
citizens of Belton and Grandview have no vote on ordi-
nances affecting property within the City of Kansas City,
four of the thirty-five public meetings were held in
Grandview in an effort to give its citizens an opportunity
to voice their concerns about the project, yet no substan-
tial environmental opposition arose. Also, those Kansas
City residents who voted “no” for the project did not
provide any reasons explaining their vote and evidently
did not write letters to the FAA informing it of any
environmental concerns. Thus, the FAA did not act arbi-
trarily by ignoring the evidence of “no” votes in wards
closest to the affected area and the citizens of Belton and
Grandview certainly were not isolated from the proceed-
ings.
2. Community Disruption and Surface Traffic
The petitioners contend that the FAA ignored or
improperly discounted evidence indicating that a sub-
stantial community disruption was likely and that the
action would cause a significant increase in surface traffic
congestion. This contention lacks merit. The FAA’s cate-
gorical exclusion evaluation did consider the potential for
App. 15
community disruption and added surface traffic, con-
cluding in relevant part that the project will not adversely
affect local traffic movement and that planned highway
improvements will more than adequately handle the traf-
fic generated by the intermodal facility.
The FAA found that the Missouri Department of
Transportation (MDOT) has considered the proposed
intermodal facility in its design for improving Route 150,
Route 58, and the interchanges of I-435, I-470, and Route
71. MDOT reported by letter that the planned roadway
and interchange improvements will accommodate the
additional truck traffic from the facility, even at its “full
build out.” (Petitioners’ App. at 55.) The Environmental
Documentation Report submitted by Kansas City, and
considered by the FAA, notes that using railcars to carry
more than one truck container actually results in fewer
trucks on the roadways. (See id. at 615.) This report notes
that “[bJased on traffic studies to date, the intermodal
facility will contribute less than 1% increase in traffic” to
the area. (Id. at 616.) The report concluded that even in
the worst case scenario, the adverse traffic effects of
increased truck and rail traffic would be offset by new
highway construction and improved intersections. An
agency may rely “on mitigating measures to be under-
taken by a third party” in making its finding of no
significant impact. Audubon Soc’y of Cent. Ark. v. Dailey,
977 F.2d 428, 435-36 (8th Cir. 1992).
Additionally, the FAA found that no additional train
traffic would occur for five years, after which the train
traffic could be expected to increase 16% over the next
twenty years. The Kansas City Southern Railway Com-
pany indicated that even assuming a 10% growth rate per
App. 16
year, no additional trains would be required in the first
five years of operation because the present trains are
currently running under capacity. (See Petitioners’ App.
at 649.) Based upon these studies and the opinions of
expert consultants, the FAA found that the anticipated
increase in train and truck traffic will not significantly
affect the movement of local traffic or alter any planned
development. The record supports this finding.
The petitioners argue that the FAA acted arbitrarily
by relying on documents that underestimate the capacity
of the facility, which is measured in “lifts per year.”* The
petitioners argue that the FAA estimated only 120,000
lifts per year, yet plans to develop the facility show that
up to about 500,000 lifts per year will be performed,
which represents only about 70% of the facility’s capacity.
The ‘petitioners assert that 100% growth is reasonably
foreseeable and should be assumed.
We are not in a position to question the veracity of
the growth estimate. The Environmental Documentation
Report and its supporting exhibits indicate an initial esti-
mation of 120,000 lifts per year, but the report also
assumes a twenty-year growth pattern, stating that “Kan-
sas City Southern is hoping to grow the facility to about
500,000 lifts a year.” (Petitioners’ App. at 641.) In the next
sentence, the report states that “[t]he goal factor is about
10% a year.” All of this information was contained in the
4 A lift is accomplished by an overhead crane that either
takes a truck trailer off the ground and places it on the rail car or
vice versa. (See Petitioners’ App. at 642.) Lifts are the means by
which revenue is generated for the facility.
!
innate ia aa
App. 17
Environmental Documentation Report, which was prop-
erly before the agency. The FAA’s findings are supported
by this documentation, and the FAA has articulated a
rational connection between the facts and the conclusions
it made. The FAA was entitled to rely on expert docu-
mentation provided in the record, and we cannot say that
the agency’s findings on this point lack substantial evi-
dence to support them.
The petitioners argue that the FAA’s reliance on the
Environmental Documentation Report, which concludes
that there is no significant impact from the proposal, is
arbitrary and capricious because it was provided by Kan-
sas City, a proponent of the project. They also question
the source of information underlying the MDOT’s projec-
tions of intermodal traffic. The FAA urges that it indepen-
dently reviewed the environmental consultants’ analysis
and concurred with the conclusions reached. The FAA
also asserts that it is allowed to rely on the opinion of a
state government agency. We agree with the FAA. Our
duty is merely to ensure that the agency considered the
proper factors and made no clear error of judgment. See
Marsh, 490 U.S. at 378. “Once the agency considers the
proper factors and makes a factual determination on
whether the impacts are significant or not, that decision
implicates substantial agency expertise and is entitled to
deference.” Alaska Ctr. for the Env’t, 189 F.3d at 859.
“When specialists express conflicting views, an agency
must have discretion to rely on the reasonable opinions of
its own qualified experts even if, as an original matter, a
court might find contrary views more persuasive.” Marsh,
490 U.S. at 378. We conclude that the FAA was entitled to
rely on expert consultants, including the opinions of
0 EEE ee ee
App. 18
other governmental agencies, especially where the evi-
dence deals with scientific judgments. See United States v.
Grand Labs., Inc., 174 F.3d 960, 964 (8th Cir. 1999).
3. Noise Pollution
The FAA found “that most of the DNL 65 dB noise
contour resulting from the intermodal facility’s train and
truck traffic will remain well within the facility’s bound-
aries.” (Petitioners’ App. at 32.) The symbol DNL (or
Ldn) represents the “[d]ay-night average sound level,”
which is a decibel measurement of the average sound
level for a 24-hour period. 14 C.F.R. § 150.7. The FAA has
determined that all land uses are considered to be com-
patible with noise levels that are less than DNL 65 dB. Id.
§ A150.101(d). Airports are required to develop noise
exposure maps showing contour lines of DNL 65, 70, and
75 dB. In areas where the noise level is DNL 65 dB or
greater, land uses must be identified and their compati-
bility determined.
To this end, the FAA has developed a table indicating
appropriate noise levels that can be tolerated for different
land uses. The noise sensitive area nearest to the pro-
posed facility is the Belton Community Golf Course,
which is 800 feet away from the noise source. The land
use table indicates that a golf course can tolerate noise
levels of DNL 65-70 dB. See 14 C.FR. Pt. 150, App. A,
Table 1-Land Use Compatibility. The study indicates that
the nearest point of the golf course is within the 65-70 dB
contour lines of the facility. The nearest residence is
located over 2000 feet away, which is well away from the
DNL 65 dB contour line even under the full build-out
App. 19
scenario. Accordingly, the FAA concluded that the project
will not significantly increase noise in any noise sensitive
areas, and therefore no further analysis was necessary.
The petitioners contend that the use of an unreason-
ably low number of expected lifts adversely affected the
noise study. We disagree. The record indicates that the
noise study includes full calculations for a full build-out
scenario, as well as calculations based on the 120,000 lift
estimation. The Environmental Documentation Report
specifically took into account the full build-out scenario,
providing full calculations for a full build-out of the
facility. The study indicated that resulting noise levels
were well below acceptable levels. The full build-out
calculations indicate a DNL 70 dB in the worst-case sce-
nario. Additionally, the study indicates that “the intermo-
dal facility only generates noise in a localized and limited
area (300 to 700 feet) adjacent to the facility, while the
airport generates noise patterns extending over 5,000 feet
away.” (Petitioners’ App. at 810.) There is no indication
that the FAA ignored evidence relevant to the noise
impact of the facility.
The petitioners also assert that the FAA ignored the
possibility of continued airport use of the facility. To the
contrary, the FAA addressed the potential noise impact
from continued use of the facility as an airport as a
cumulative impact but concluded that while there is a
possibility of future airport development at this site,
there is no proposal reasonably foreseeable at this time.
Furthermore, any future airport plans would be subject to
appropriate environmental review when proposed. Thus,
this possibility is an insufficient basis on which to find
that the FAA’s action at this time was arbitrary.
App. 20
The petitioners’ remaining contentions are based in
large part on the opinion of their own expert, which was
not made a part of the administrative record. Through a
motion to this court, petitioners sought to supplement the
record with letters and expert opinions that were not
before the agency, in order to show that the agency over-
looked substantial environmental issues and relevant fac-
tors. We are not in a position to substitute our own
judgment for that of the agency by considering expert
testimony that was not made a part of the administrative
record. “[W]Jhen a litigant challenges an agency deter-
mination on grounds that, in essence, allege that the
agency’s expert review was incomplete, inconclusive, or
inaccurate, the greater degree of deference expressed by
the arbitrary and capricious standard is appropriate.”
Greenpeace Action v. Franklin, 14 F.3d 1324, 1331 (9th Cir.
1992) (alterations, quotations, and citations omitted).
Once we determine that an agency’s discretion is truly
informed, we must defer to that informed discretion. See
Marsh, 490 U.S. at 377; Greenpeace, 14 F.3d at 1332; see also
Newton County Wildlife Ass'n v. Rogers, 141 F.3d 803, 808
(8th Cir. 1998) (noting that our inquiry ends when we are
satisfied that the agency considered all of the information
available at the time of its decision).
Our review of the record indicates that the FAA
considered all relevant factors and available evidence
relating to the noise impact of the facility. The FAA’s
conclusions are based on substantial scientific data, and
not on mere speculation. NEPA does not require courts to
resolve disagreements among experts. See Greenpeace, 14
F.3d at 1333. “[T]he record in this case reveals no com-
plete failure to consider crucial factors.” Id. Accordingly,
App. 21
we deny the petitioners’ motion to supplement the
record.
In a noise-related argument, the petitioners contend
that the noise impact of the facility on the nearby Belton
Community Golf Course will interfere with enjoyment of
the golf course so as to amount to a “use” of the property.
Section 4(f) of the Department of Transportation Act pro-
vides in relevant part that the “use” of publicly owned
land or a public park may be approved only if there is no
feasible alternative and the project includes all possible
planning to minimize the resulting harm. See 49 U.S.C.
§ 303(c). The FAA’s Environmental Handbook provides
that an action that is likely to use Section 4(f) lands is an
extraordinary circumstance requiring an environmental
assessment. (See Petitioners’ App. at 902; FAA Order
5050.4A, | 24(a).) As already noted, the FAA found that
the nearest part of the golf course lies about 800 feet from
the boundary of the proposed facility. The full build-out
worst-case scenario shows a DNL 70 dB contour line
encompassing property within 700 feet of the noise
source and a DNL 65 dB contour line encompassing prop-
erty within 700 to 1400 feet from the noise source. (Peti-
tioners’ App. at 834.) The FAA determined that the golf
course is a compatible land use with the facility’s DNL
65-70 dB level of noise. The record supports the FAA’s
finding that the proposed action will not physically take
or “use” Section 4(f) property.
4. Air Quality
FAA Order 5050.4A, paragraph 24 (f), states that an
extraordinary circumstance exists where a government
App. 22
action has a significant impact on air quality. (See Peti-
tioners’ App. at 902.) The FAA considered the intermodal
facility’s potential effect on the air and determined that
the resulting air quality impacts are not significant. Since
its initial determination, however, the FAA has identified
a mathematical miscalculation in its original analysis,
which resulted in an underestimate of the air quality
impacts. We permitted the FAA to correct the record
calculations based upon accurate information. The new
calculations provided by the FAA continue to indicate
that the air quality effects of the new facility do not rise
to a significant level.
The petitioners contend that the FAA overlooked a
significant impact on air quality because the study was
based on underestimated traffic assumptions. We con-
cluded earlier that the traffic analysis was not seriously
underestimated. The petitioners also point to the opinion
of their own expert for their assertion that the FAA’s air
quality analysis is flawed. We have denied their attempt
to supplement the record with this expert opinion. Also,
there is no merit to the contention that an EIS must be
prepared whenever qualified experts disagree. See Green-
peace, 14 F.3d at 1335. We refuse to engage in a de novo
review of scientific data and opinions that are within the
expertise of the agency.
5. Historical Property
The Friends assert that the facility will have an
adverse effect on a historical property. Although one
building on the property is potentially eligible for protec-
tion under the National Register of Historic Places, the
App. 23
FAA determined that it is outside of the area of potential
effect because it is not within the boundary of the lease,
and any impacts on historical property resulting from the
project will not extend beyond the lease line boundaries.
We see nothing arbitrary in this decision. Also, the FAA
considered the fact that the airport was named after two
local pilots killed during World War I and the Korean
War, but it concluded that this does not make the airport
eligible for protection as a historic site. The FAA consid-
ered the relevant factors, and we will not disturb its
finding of no significant impact.
6. Relocation Housing
The FAA’s Airport Environmental Handbook states
that an extraordinary circumstance exists if the action is
“likely to be highly controversial with respect to the
availability of adequate relocation housing.” (Petitioners’
App. at 902; FAA Order 5050.4A, ¥ 24(d).) The FAA found
that the intermodal facility project is not controversial
with respect to the availability of relocation housing
because it does not involve any housing issues and will
not require the relocation of any residents. The FAA also
considered that the action will require the closure of the
fixed base operation and the hangar facilities at the air-
port. The FAA found that sufficient general aviation facil-
ities are available in the area, although the hangar space
is inadequate. In spite of the inadequacy of available
hangar space, the FAA did not alter its finding that the
action is not highly controversial on the issue of reloca-
tion housing.
App. 24
The Friends contend that the FAA defined adequate
relocation housing too narrowly by ignoring the inade-
quacy of available hangar space for aircraft that will need
to be relocated. They cite 42 U.S.C. § 4601(6)(A) (1994), of
the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, which defines “displaced
person” as “any person who moves from real property, or
moves his personal property from real property” as a
direct result of an agency action. The Friends contend
that the agency’s interpretation of the statute as involving
only housing issues, and not also displacement of per-
sonal property, reads the statute too narrowly.
In the context presented here, we disagree. The FAA’s
order is specifically concerned with the environmental
impact of agency actions that relocate people or busi-
nesses. We do not believe the FAA purports to implement
the Uniform Relocation Assistance and Real Property
Acquisition Policies Act in its handbook. Instead, the
FAA is implementing the policies of NEPA and has dis-
cretion in doing so to decide that the displacement of
people from their housing has a significant impact on the
human environment, while the relocation of airplanes
does not. Nothing in the handbook prevents the pilots
from obtaining any federal assistance to which they may
be entitled under the Uniform Relocation Assistance and
Real Property Acquisition Policies Act due to the reloca-
tion of their personal property. The FAA was not arbi-
trary in deciding that any difficulty experienced in
obtaining hangars for relocated airplanes does not create
an environmental concern requiring the preparation of an
environmental assessment in this case.
App. 25
7. Railroad Construction
The Friends also contend that although the agency
may properly categorically exclude the release of airport
property, it may not categorically exclude the construc-
tion of a railroad track. However, the FAA did not cate-
gorically exclude the construction of a railroad track. The
FAA properly considered the potential environmental
impact that might result from the proposed facility.
Whether the construction of track is considered a railroad
line subject to the jurisdiction of the Surface Transporta-
tion Board (STB), see 49 U.S.C. § 10501(b) (Supp. IV 1998),
or an industrial, team, switching, or side track that is not
within the STB’s jurisdiction, see 49 U.S.C. § 10906 (Supp.
IV 1998), is a matter to be considered in the first instance
by the STB. We agree with the FAA that this question is
not properly before us at this time. It is enough that the
FAA considered the relevant resulting environmental fac-
tors and determined them to have no significant impact
on the environment.
. B. The Decision to Release the Federal Obligations
The Aircraft Owners and Pilots Association (AOPA)
challenges the FAA’s authority to grant a release from the
federal obligations that were imposed upon Kansas City
by reason of the Surplus Property Act and the Airport
Improvement Act. Because AOPA did not make this chal-
lenge before the agency and has not proffered any reason-
able basis for not making the objection at that time, we
will not consider the argument here. See 49 U.S.C.
§ 46110(d) (stating that the court reviewing an FAA order
may consider only those objections made in the agency
App. 26
proceeding, unless there was a reasonable basis for not
making the objection earlier); see also Northwest Airlines,
Inc. v. FAA, 14 F.3d 64, 73 (D.C. Cir. 1994) (noting that
even objections challenging the agency’s authority to act
must be raised before the agency in the first instance).
AOPA also challenges the decision to release the
federal obligations as arbitrary, capricious, and contrary
to law. In this case, Kansas City sought release from its
federal obligations to make the airport available to the
public for aeronautical use. The FAA granted the request,
finding in its amended and restated memorandum of
agreement that “the City has subsidized the Airport with
revenue from the other airports owned and operated by
the City” and that “the City has identified an alternative
use for the Property that will generate additional revenue
for the regional aviation system and permit aviation
funds now used to subsidize Richards-Gebaur to be used
for future improvements” at Kansas City’s other airports.
(Petitioners’ App. at 879.) Additionally, the memorandum
specifically finds:
[I]n consideration of the number of public-use
genera] aviation airports in the Kansas City
area; the fact that at least three of these airports
are within convenient driving distance of the
areas served by Richards-Gebaur; the fact that
the sponsor of Richards-Gebaur Airport, Kansas
City, operates two other airports serving the
Kansas City area; the fact that the remaining
value of Airport Improvement Program (AIP)
investments in Richards-Gebaur recovered from
the City may be reinvested in other general
aviation capacity projects in the Kansas City
area; the fact that the proposed redevelopment
App. 27
of the Property will produce substantial revenue
for aviation development in the Kansas City
airport system; and the fact that a significant
part of this revenue stream will be committed to
general aviation projects in the Kansas City air-
port system; the FAA finds that highly unusual
circumstances exist that would support a find-
ing that the release and closure of the Richards-
Gebaur Airport would result in a net benefit to
aviation... . ”
(Petitioners’ App. at 880.)
The statute provides that the Secretary of Transporta-
tion “may waive” the conditions of a surplus property
gift if the Secretary decides (1) that “the property no
longer serves the purpose for which it was given,” or (2)
that “the waiver will not prevent carrying out the pur-
pose for which the gift was made and is necessary to
advance the civil aviation interests of the United States.”
49 U.S.C. § 47153(a)(1). The Secretary also “shall waive a
term under paragraph (1) of this subsection on terms the
Secretary considers necessary to protect or advance the
civil aviation interests of the United States.” Id.
§ 47153(a)(2); see also 14 C.E.R. § 155.3(a)(1), (2) (restating
the statutory grounds that may be the basis for a release).
AOPA contends that the FAA failed to satisfy the stan-
dards of the Surplus Property Act because nowhere in its
findings did the FAA state that the waiver was “neces-
sary,” as required by the language of the statute. See 49
U.S.C. § 47153(a)(1)(B).
We initially reject the FAA’s assertion that AOPA did
not raise this plain language objection before the agency.
The argument may not have been made as thoroughly as
App. 28
it is in the petition for review, but AOPA specifically
quoted the language of the statute in a letter to the FAA
dated September 21, 1998, complaining that the mem-
orandum of agreement “does not conclude or explain
how the release ‘is NECESSARY to advance the civil
aviation interests of the United States.’” (Respondents’
App. at 75 (quoting 49 U.S.C. § 47153(a)(1)(B), emphasis
in original)). We conclude that this complaint to the
agency sufficiently preserved the plain language argu-
ment asserted here. Thus, we move on to consider
whether the agency’s interpretation of the statute in mak-
ing the release was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
As AOPA complains, nowhere in the memorandum
of agreement or in the actual letter releasing the property
does the FAA specifically state that the release of the
Richards-Gebaur Airport property is “necessary to
advance the civil aviation interests of the United States,”
as it is worded in the statute. Instead, the memorandum
of agreement lists all of the reasons why a release is
beneficial and after considering them, concludes, in the
language of an FAA order, that the release “would result
in a net benefit to aviation.” (Petitioners’ App. at 880.)
For the following reasons, we do not believe this to be
fatal to the FAA’s decision.
The regulation implementing the statute quotes the
statutory language in large part without specifically
interpreting how the FAA will determine when a release
is “necessary” to protect or advance aviation interests. See
14 C.F.R. § 155.3(a)(2). In the FAA’s interpretive order,
App. 29
Order 5190.6A entitled Airport Compliance Require-
ments, the FAA states that “[a] total release, permitting
the sale and disposal of real property acquired for airport
purposes under the Surplus Property Act, shall not be
granted unless it can clearly be shown that the sale of
such property will benefit civil aviation.” (Petitioners’
App. at 1040.) The FAA’s general policy regarding the
release of surplus property allows property to “be
released for sale or disposal upon a demonstration that
such disposal will produce an equal or greater benefit (to
the airport or another public airport) than the continued
retention of the land.” (Id. at 1040-41.) The FAA deter-
mined that such a release effectively authorizes “the con-
version of a real property asset into another form of asset
(cash or physical improvements) which better serves the
purpose for which the real property was initially con-
veyed.” (Id. at 1041.) The FAA’s order states that an
airport owner requesting a release must justify the
request, and could do so by “showing that the expected
net proceeds from the sale of the property at its current
market value will be required to finance items of airport
development and improvement; the need for which is
concurred in by the FAA.” (Id.)
Once again we must consider the persuasive force of
an FAA order which is not the product of formal adjudi-
cation and not a regulation entitled to Chevron deference.
See Christensen, 120 S.Ct. at 1662-63. Such decisions are
“ “entitled to respect,’” but only to the extent that they
have the “ ‘power to persuade.’” Id. at 1663 (quoting
Skidmore, 323 U.S. at 140). AOPA argues that the FAA’s
order is not persuasive because it is contrary to the plain
language of the statute. We respectfully disagree.
segs App. 30
We maintain our long-standing opinion that “[a] stat-
ute is the command of the sovereign,” and an agency
implementing a statute may not ignore, or provide its
own substitute for, a standard articulated in the statute.
See Sokol v. Kennedy, 210 F.3d 876, 880 (8th Cir. 2000). We
conclude, however, that the FAA has neither ignored nor
provided a substitute for the articulated statutory stan-
dard in this case. Instead, the agency has properly exer-
cised its discretion to add objective criteria to aid in its
application of the statutory standard. Both the statutory
and regulatory language states that a release must be
“necessary to protect or advance the civil aviation inter-
ests of the United States.” 49 U.S.C. § 47153(a)(2); 14
C.F.R. § 155.3(a). The FAA’s interpretive order provides
some guidance for the agency’s determination of what is
“necessary” to this purpose. It is within the FAA’s discre-
tion to determine the criteria for assessing when a release
is necessary to protect or advance civil aviation interests
within the language of the statute.
The FAA’s order interprets the statutory and regula-
tory standard as satisfied so long as the release of the
property “can clearly be shown .. . [to] benefit civil
aviation.” (Petitioners’ App. at 1040.) As earlier noted,
this policy allows a release when the conversion of the
real property into another asset better serves the purpose
for which the real property was initially conveyed. A
contrary interpretation would require the continued use
of airport property in a manner that does not best serve
the purpose of the original gift. We conclude that it was
reasonable for the FAA to determine that a release pro-
viding a net benefit to aviation is “necessary” to advance
App. 31
and protect civil aviation within the meaning of the stat-
ute.
AOPA does not challenge the factual record showing
that the closure of the airport will result in a net benefit
but challenges the FAA’s failure to use the exact statutory
language in its memorandum of agreement. The FAA
counters that it was not required to use the exact statu-
tory language in its findings, citing Ethyl Corp. v. EPA, 541
F.2d 1, 12 n. 15 (D.C. Cir.) (stating, “[i]t is well established
that ultimate findings do not have to be expressed at all,
let alone be expressed in the language of the statute”),
cert. denied, 426 U.S. 946 (1976). We agree with the FAA
that in this instance, where the agency expressed its
findings in the language of its interpretive order, which
we have concluded reasonably interprets the statute, the
FAA was not required to quote the exact statutory lan-
guage in its findings. Despite the FAA’s failure to couch
its findings in the language of the statute, the record
persuades us that the airport closure in this instance will
result in an otherwise unavailable and significant benefit
to aviation and therefore is necessary to advance and
protect the aviation interests of the United States. Thus,
the FAA’s decision is not arbitrary, capricious, or contrary
to law.
Il.
Accordingly, we deny the petitions for review and
affirm the order of the FAA releasing Kansas City from
its federal obligations to maintain the property for
App. 32
aeronautical use. All pending motions to supplement the
record are denied.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
App. 33
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 00-1050
Friends of Richards-Gebaur
Airport; City of Grandview,
Missouri, a Municipal
corporation, Petitions for Review
of an Order of the
Federal Aviation
Administration.
Petitioners,
V.
Federal Aviation
Administration, Jane Garvey,
Administrator,
City of Kansas City, Missouri;
The Kansas Southern Railway
Company,
Intervenors on
Appeal.
Aircraft Owners and Pilots
Association,
Amicus on Behalf of
Petitioner.
ie
+
*
—
aa
”
*
=
-
+.
Respondent. *
*
ca
7
*
*
-
*
of
*
*
-
*
App. 34
No. 00-1974
Aircraft Owners and Pilots
Association,
Petitioner,
V.
Federal Aviation
Administration, Jane Garvey,
Administrator; United States
Department of Transportation,
Rodney E. Slater, Secretary,
Respondents.
The Kansas City Southern
Railway Company; City of
Kansas City, Missouri,
Intervenors on
Appeal.
JUDGMENT
This cause was submitted on petition for review of an
order of the Federal Aviation Administration, on the orig-
inal record, briefs of the parties and was argued by
counsel.
After consideration, it is hereby ordered and
adjudged that the Federal Aviation Administration is
affirmed, order in accordance with the opinion of this
Court.
App. 35
(5272-010199)
June 11, 2001
A true copy.
ATTEST: /s/ Michael E. Gans
App. 36
[LOGO] Memorandum
U.S. Department
of Transportation
Federal Aviation
Administration
Date: December 23, 1999
Subject: ACTION: Categorical Exclusion Evaluation and
Determination for the Federal Release of the
City of Kansas City, Missouri, from its obliga-
tions to maintain aeronautical use of approxi-
mately 497 acres of the existing Richards-
Gebaur Airport, Kansas City, Missouri.
From: Assistant Manager, Community and Environ-
mental Needs Division, APP-600
To: Files
Reply to Attn. of: E. Melisky / 202-267-5869
The City of Kansas City, Missouri, is seeking
Federal approval to release approximately 497
acres of the 1,362 +/- acres comprising
Richards-Gebaur Airport. The Kansas City
Southern Railroad is proposing to establish an
intermodal cargo facility solely served by truck
and train traffic. As a result, the released land
will no longer be used for aeronautical pur-
poses.
Since the released land contains the airport’s
only runway, the agreement to release will
result in closure of the Richards-Gebaur Air-
port. Once closure of the airport occurs, FAA
will issue an airspace determination per Order
7400.2D. The National Flight Data Center of
FAA’s Air Traffic Service will then publish this
App. 37
information in the National Flight Data Digest.
The Digest notifies the National Oceanic and
Atmospheric Administration of the airport
abandonment and results in removal of the air-
port from the Airport Facility Directory.
According to paragraph 23.a.(10) of the Federal
Aviation Administration’s (FAA) “Airport Envi-
ronmental Handbook” (Order 5050.4A), the
proposed Federal release of airport land is nor-
mally categorically excluded from the require-
ment to prepare an environmental assessment
(EA), unless certain extraordinary circum-
stances, noted in paragraph 24 of Order
5050.4A, indicate that an EA must be prepared.
To determine the potential applicability of these
circumstances, FAA has carefully evaluated the
environmental information the City of Kansas
City provided to FAA in support of this land
release. Our analysis is presented in the
attached Categorical Exclusion Evaluation. In
addition, the evaluation also addresses environ-
mental concerns noted in correspondence that
various individuals have sent to FAA regarding
this project.
Based on the attached information, we have
determined that the proposed release of airport
land does not involve any extraordinary cir-
cumstances, and the action should be cate-
gorically excluded.
/s/ Ralph Thompson _ 12/23/99
Assistant Manager, Date
Community and
Environmental
Needs Division,
APP-600
App. 38
These decisions are taken pursuant to 49 U.S.C. 40101 et seq.
and 49 U.S.C. 47101 et seq., and constitute orders of the
Administrator which are subject to review by the Courts of
Appeals of the United States in accordance with the provisions
of Section 1006 of the Federal Aviation Act of 1958, as
amended, 49 U.S.C. Section 46110.
CATEGORICAL EXCLUSION EVALUATION
1. National Historic Preservation Act of 1966 (NHPA)
and Archeological and Historic Preservation Act of 1974
(AHPA). Cite: Reference 1, Section 5.0, and Reference 2,
Chapter 3.4.6.
The FAA has determined that the Area of Potential Effect
(APE) for the proposed release consists of the Kansas City
Railroad (KCS) Lease Line Boundary shown on Reference
1, Attachment 7. FAA has determined that impacts result-
ing from the proposed land release and intermodal facil-
ity will not extend beyond the Lease Line boundaries
(i.e., APE). (We note that Attachment 7 incorrectly identi-
fies the APE as the area within the U.S. Air Force Air Base
Boundary). After evaluating Reference 1, section 5, and
Reference 2, Appendix K-1, FAA has determined that
there are no properties on or eligible for listing on the
National Register of Historic Places within the FAA’s
APE. Therefore, the requirements of Section 106 of the
NHPA and the AHPA have been met. No further analysis
is required by Order 5050.4A.
A commenter noted that the Richards-Gebaur Air Force
Base (now Richards-Gebaur Airport) was named in honor
of two local pilots killed during World War I and the
Korean War; therefore, Section 106 of the NHPA applies
to the proposed undertaking. Although the airport was
App. 39
named in honor of Lt. John Richards and Lt. Col. Arthur
Gebaur, respectively, that action alone does not make the
airport a property eligible for inclusion in the National
Register of Historic Places (National Register). For dis-
closure purposes, FAA notes that Building 602, the only
property in the airport area potentially eligible for inclu-
sion in the National Register (Reference 2, Appendix
K-1), is located well outside of FAA’s APE.
2. Noise. Cite: Reference 3, Section 3.5.
Review of Reference 3, Exhibit 13, shows that most of the
DNL 65-dB noise contour resulting from the intermodal
facility’s train and truck traffic will remain well within
the facility’s boundaries. The contour segment north of
Highway 150 lying outside the facility’s northern bound-
ary encompasses undeveloped farmland (Exhibit 13). The
Belton Community Golf Course, located approximately
800 feet east of the intermodal facility’s eastern boundary
(Reference 1, Attachment 7) lies well beyond the facility’s
noise contour. As a result, the project will not signifi-
cantly increase noise in any noise sensitive areas. No
further analysis is required by Order 5050.4A.
3. Air Quality. Cites, Reference 1, Section 2 and Refer-
ence 3, Section 3.4.
Kansas City is an ozone maintenance area. Based on the
intermodal facility air quality analysis, the potential
emissions of NOx and VOC’s are shown to be below the
de minimis levels specified in 40 CFR Part 51.853, EPA
regulations for determining conformity of federal actions
with State Implementation Plans (SIP’s). Therefore, the
proposed intermodal facility project would conform to
the state air quality plan (i.e., SIP). In addition, the Mid-
App. 40
America Regional Council, the Kansas City Metropolitan
Planning Agency, has noted that the proposed intermodal
facility has been found to be consistent with assumptions
used in the region’s Long-Range Transportation Plan
(TIP) and that the facility would not significantly increase
regional emission levels, nor would the emissions associ-
ated with the facility trigger federal general conformity
requirements. Emissions would fall within allowable
growth in emissions projected in the regions air quality
plans. As a result, FAA finds the project to be consistent
with regional plans for maintaining the National Ambient
Air Quality Standards. No further air quality analysis is
required by Order 5050.4A.
4. Farmlands.
No farmlands are to acquired or will be affected. There-
fore, no further analysis is required by Order 5050.4A.
5. Environmental Controversy. Cite: Reference 7.
The FAA has received 67 letters on the proposal - two
letters favorable towards the proposal, and the remainder
unfavorable. Of the unfavorable letters, 53 (about 80%)
were form letters signed by pilots objecting to the closure
of the airport. The FAA reviewed all letters to consider
the objections raised in them. The primary objection (58
letters, including the 53 form letters) was that there was
not sufficient public involvement in the decision.
The records show (personnel communication, Ralph
Thompson, FAA, and Robert Cohn, Shaw-Pittman, Dec.
17, 1999) that Kansas City officials held numerous meet-
ings with local public officials, and interested organiza-
tions, that were also open to the public. Kansas City also
Teeieesnenirsesiennsinaieniiiiiilsiiimaiiiihiaaiiiiiaaiiaaiiiaiiuaiiaidiiiiiaiiiiad
App. 41
held a public hearing at Hillcrest Community Center that
was attended by approximately 200 people. It should be
noted that the City of Kansas City conducted a referen-
dum in August 1998 to allow its residents to decide
whether to authorize the City to participate in a 50-year
lease with the Port of Kansas City for the intermodal
facility (personnel communication, Ralph Thompson,
FAA, and Robert Cohn, Shaw-Pittman, Dec. 17, 1999). The
referendum did not include communities such as Belton
and Grandview, Missouri, which are located outside the
boundaries of Kansas City. The Kansas City electorate
approved the referendum.
The next two objections most frequently cited in letters
submitted to the FAA (54-55 Letters, including the 53
form letters) were that jobs would be lost and an affluent
community would be adversely affected. In addition to
the above issues, Mr. McDermott, has noted concerns
regarding potential air quality impacts, traffic congestion,
golf course impacts (including air quality, noise, and
visual impacts), historic property impacts, planned com-
munity disruption, and cumulative impacts. There were 4
other comments regarding potential traffic congestion
and air quality impacts (1); the golf course (1); and light-
ing effects (2).
The FAA has carefully considered these comments and
determined that there are no extraordinary circumstances
warranting the preparation of an Environmental Assess-
ment (EA). Based on the 1990 Census data for the com-
munities closest to the proposed facility (Belton 18,145)
and Grandview (24,973), the FAA has also determined
that the 67 letters it received on the proposal do not
constitute substantial opposition on environmental
App. 42
grounds. In addition, no Federal, State, or local govern-
ments or agencies opposed the action on environmental
grounds. As a result, this proposal is not considered
highly controversial on environmental grounds.
6. Natural Environment. Cite: Reference 1, Section 6.0,
Reference 3, Section 3.6, and Reference 4.
Federally-listed endangered and threatened species do
not occur in the project area (Reference 4). Regarding the
possibility of introducing invasive biotic species, the pro-
posed intermodal facility will not be a Port of Entry.
Instead, Port of Entry controls will be maintained at the
existing U.S. border during the facility’s first five years of
operation. Any future changes in the facility’s Port of
Entry status will be coordinated with the U.S. Customs
Service and other appropriate Federal agencies and will
be subject to appropriate environmental review (Refer-
ence 1, Section 6). Therefore, no further analysis is
required by Order 5050.4A.
7. Relocation Housing. Cite: Reference 5 and Refer-
ence 6,
The action does not involve the acquisition of any hous-
ing er relocation of residents. Therefore, this is not an
action that is likely to be highly controversial with
respect to the availability of relocation housing and war-
ranting an EA.
FAA, however, received several comments regarding the
relocation of aircraft or businesses. Closure of the airport
and construction of the proposed intermodal facility will
Lmemmeeemcsenmssitiiiiitiieiiihitaiitiiiaiitaiiliiaaa iad
App. 43
require closure of a fixed base operator (FBO) and aircraft
operations to move. The City of Kansas City is presently
negotiating with the FBO regarding the termination of its
lease for space at the airport. Adequate general aviation
airport facilities are available in the metropolitan Kansas
City area to accommodate displaced aircraft (Reference
6), but hangar space may not be sufficient.
8. Community Disruption. Cite: Reference 1, Section
3.0.
The Missouri Department of Transportation (MDOT) has
considered the proposed Richards-Gebaur intermodal
facility in its design for Route 150. MDOT reports that
these improvements will accommodate additional truck
traffic associated with the proposed intermodal facility.
Since the facility will not have an access off of Route 150,
it is expected that little if any facility-related truck traffic
would use Route 58, favoring instead the more direct and
truck friendly Route 150 (Reference 1, Attachment 3).
No additional train traffic will occur at the two grade
crossings in the City of Grandview during first five years
of operation. After that period, train traffic is expected to
increase an average of 16% over the next twenty years.
This increase will cause only 3 percent of the local traffic
to experience delays up to 150 seconds Reference 1,
Attachment 5). As a result, the proposed facility’s rail
traffic will not adversely affect local vehicular movement,
nor will it alter any planned development. No further
analysis is required by Order 5050.4A.
App. 44
9. Section 4(f) of DOT Act. Cite: Reference 1, Section
7.0.
The City of Belton’s Community Golf Course, which is
leased from the City of Kansas City, is located in the
vicinity of the proposed intermodal facility. Review of
Reference 1, Attachment 7 shows that the fairway and
green closest to the proposed intermodal facility lies
about 800 feet from the facility’s boundary. Examination
of the proposed facility’s noise impacts (Reference 3,
Exhibit 13) shows that the course lies well beyond the
facility’s DNL 65-dB noise contour. It should be noted
that golf courses are considered a compatible land use
with these levels of noise (14 CFR Part 150, Appendix A,
* Table 1)
After reviewing information provided by the proponent
and letters from the Mid-American Regional Council
(Reference 1, Attachment 1, and Reference 3, Attachment
12), FAA has determined that the project will not signifi-
cantly increase noise or degrade air quality in the project
area, including the golf course. Therefore, FAA has deter-
mined that the proposed action will not physically take or
constructively use any 4(f) property. No further analysis
is required by Order 5050.4A.
10. Water Quality and Wetlands. Reference 3, Chapter
3.6.
The proposed intermodal facility’s seven road crossings
will affect isolated waters and unnamed tributaries to
Mill Creek and Little Blue River. Based on information
the proponent submitted to the Corps of Engineers
(Corps) regarding these crossings, the Corps has autho-
rized these crossings under Nationwide Permit No. 14.
RE ME TL LT eT NR TO Te OT
App. 45
The Missouri Department of Natural Resources certified
that the project will not violate any water quality stan-
dards (Reference 3, Appendix E, letter dated March 15,
1999). No further analysis is required by Order 5050.4A.
11. Consistency. Cite: Reference 3.
The proposed project is consistent with applicable Fed-
eral, State, and local laws relating to the environment. No
further analysis is required by Order 5050.4A.
12. Hazardous material. Cite: Reference 1, Section 4
and Reference 3, Section 3.3.
Building 1010 and its adjacent land appears to be the only
contaminated site located within the area where project-
related subsurface disturbance will occur. The City of
Kansas City has hired a consultant to investigate the
building and adjacent septic system field for potential
hazards and to determine the need for potential cleanup.
The City has committed to conducting whatever cleanup
is necessary for this site before commencing construction
thereon. (personnel communication, Ralph Thompson,
FAA, and Robert Cohn, Shaw-Pittman, Dec. 17, 1999).
There are a few other sites within the boundary of the
proposed intermodal facility that are know [sic] to con-
tain hazardous materials, but these sites will not be
affected by project related subsurface disturbance. For
these particular sites cleanup is either underway or com-
pleted. The Army Corps of Engineers (Corps) is the reme-
diation agency involved with cleanup efforts associated
with the West Burn Pit (ibid.). The Burn Pit site is
we
App. 46
scheduled to be clean and clear before execution of the
land use agreement. In addition, the Air Force and Corps
are currently working to remediate six underground stor-
age tanks/lines; remediation is schedule for completion
by March 1, 2000 (ibid.). Building 1011 has been surveyed
and remediation completed (ibid). No further analysis is
required by Order 5050.4A.
13. Cumulative Impacts Consideration: Reference Sec-
tion 3.3 of Volume I of the Environmental Documenta-
tion Report and Section 4.0 of the Supplemental
Information.
Regulations implementing the NEPA require Federal
agencies to consider “cumulative actions, which when
viewed with other proposed actions, have cumulatively
significant impacts and should therefore be discussed in
the same impact statement” (40 CFR, 1508.25(a)(2)). An
agency must analyze the incremental impact of the
action, “when added to other reasonably foreseeable
actions, regardless of what agency (Federal or non-
Federal) or person undertakes such other actions” (40
CFR, 1508.7).
During its environmental analysis for the proposed
action, FAA has examined relevant past and reasonably
foreseeable future roadway and aviation projects. As
noted later in this section, the only reasonably foreseeable
actions involve the following proposed roadway activ-
ities:
a. Improvements to Route 150;
b. Improvements to Route 58; and
App. 47
¢. Interchange improvements for I-435, I-470,
and Route 71 (Grandview Interchange).
Environmental findings for proposed roadway activities:
The Federal Highway Administration (FHWA) is plan-
ning a number of roadway improvements to accommo-
date future traffic demands in the Kansas City area that
are unrelated to the proposed intermodal facility. FHWA
recently completed NEPA documents for these actions.
On January 11, 1996, FHWA issued a Finding of No
Significant Impact (FONSI) for Route 150 improvements
(Reference 3, Exhibit 8). On August 17, 1999, FHWA
concurred with MDOT’s Categorical Exclusion deter-
mination for Route 58 improvements (Reference 3,
Exhibit 8). On July 7, 1999, FHWA updated a June 9, 1998,
Categorical Exclusion for the Grandview Interchange
after assessing proposed design changes to that proposal
(personal communication, Ken Ornes, FAA, Central
Region, with Steven Harmoni, MDOT, Kansas City Dis-
trict Office, Dec. 17, 1999). MDOT notes that it considered
the intermodal facility’s truck traffic during the design of
the proposed road improvements and that these improve-
ments will more than adequately handle the intermodal
traffic (Reference 1, Attachment 3).
Information on aviation-related activities:
The proposed Amended and Restated Memorandum of
Agreement (MOA) that is part of this proceeding (Refer-
ence 6) notes that the Kansas City Council passed a
resolution expressing the City’s intent to maintain a gen-
eral aviation (GA) airport on the Richards-Gebaur Air-
port and directed the Kansas City Airport Authority
(KCA) to prepare a Master Plan for general aviation at
App. 48
Richards-Gebaur Airport. In October 1999, KCA selected
a contractor to prepare the Plan and issued a Notice to
Proceed. In addition, the MOA states that: (1) KCA
agreed to undertake significant general aviation (GA)
airport improvements with local funds; and (2) FAA has
identified other currently unfunded GA airport projects
in the metropolitan Kansas City area that will be funded
in accordance with the MOA if a relocated airport is not
built.
Although the Master Plan is underway, KCA has not yet
determined if there is a need for a new GA airport or if
other general aviation projects will be pursued.
Since sclutions to the metropolitan area’s GA demands
are not reasonably foreseeable, it is not necessary to
include future, unknown GA facilities in the cumulative
analysis for the proposed release of Richards-Gebaur Air-
port. If KCA requests FAA approval of Airport Layout
Plans and Airport Improvement Program funding for any
future GA facilities that an acceptable Master Plan identi-
fies or when other sponsors do so, FAA will complete
appropriate environmental review and coordination for
[sic] with those facilities.
Cumulative impacts of these activities.
Turning to cumulative impacts and natural resources in
light of other activities in the project area, FAA identified
air quality and traffic congestion as key areas of concern,
since reasonably foreseeable projects (highway develop-
ment) would affect these resources.
FAA’s analyses, in conjunction with information from the
Mid-America Regional Council, the Missouri Department
App. 49
of Transportation, and a Special TranSystem report on
vehicular and rail interactions, show that the proposed
airport release will not cause significant cumulative air
quality or traffic congestion impacts for the following
reasons.
Air quality: The FAA’s analysis of air quality data in
Reference 1, Section 2, Reference 3, Section 3.4 and
Appendix C, and the analysis of the Mid-America
Regional Council (Reference 1, Attachment 1), show the
Proposed facility will not significantly increase regional
air emission levels. Therefore, FAA’s action and other
reasonably foreseeable actions in the area will not cause
cumulative air quality impacts (see section 9 of this eval-
uation).
Surface traffic congestion: The MDOT has considered
plans for the proposed Richards-Gebaur intermodal facil-
ity in its design changes to planned, area roadway
improvements to the Grandview Triangle (the inter-
change for I-435, I-470 and Route 71) and Routes 58 and
150 (Reference 1, Attachment 3). That department has
found that the, “current designs can more than handle the
additional truck traffic that would be generated by the
intermodal facility.” The FAA concurs with this finding.
The FAA’s assessment of the Proposed intermodal facil-
ity’s train traffic on community vehicular traffic shows
that rail activity will not adversely affect local vehicular
traffic (see section 7 of this evaluation). Therefore, local
roadways will remain at acceptable Levels of Service as
train traffic increases during the upcoming years.
App. 50
Based on its evaluation of impacts, the FAA has deter-
mined that the proposed action will not cause significant
cumulative impacts or traffic congestion.
References:
1.
Addendum Environmental Documentation Report,
December 2, 1999
Environmental Documentation Report. Proposed
Richards-Gebaur International Freight Gateway Vol-
ume II of II (Final Environmental Impact Statement,
July 1994, Disposal and Reuse of Richards-Gebaur Air
Force Base, Missouri
Environmental Documentation Report. Proposed
Richards-Gebaur International Freight Gateway Vol-
ume I of II.
Memo to File, Richards-Gebaur Airport, Ed Melisky,
November 15, 1999.
Robert Cohn memorandum to David Bennett, Decem-
ber 14, 1999.
Draft Amended and Restated Memorandum of Agree-
ment, December 16, 1999.
App. 51
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 00-1050/1974
Friends of Richards-
Gebaur Airport, et al.,
Order Denying Petition
for Rehearing and for
Rehearing En Banc
Petitioners,
vs.
Federal Aviation
Administration, et al.,
* = &#* 8 & * & & &
Respondents.
The petitions for rehearing en banc are denied. The
petitions for rehearing by the panel are also denied.
(5128-010199)
September 19, 2001
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit
App. 52
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
FRIENDS OF RICHARDS-GEBAUR AIRPORT,
AND CITY OF GRANDVIEW, MISSOURI,
Petitioners,
v. Case No. 00-1050
FEDERAL AVIATION ADMINISTRATION;
JANE GARVEY,
Respondents,
and
CITY OF KANSAS CITY, MISSOURI;
KANSAS CITY SOUTHERN RAILROAD,
Intervenors-Respondents.
DECLARATION OF ED MELISKY
1. I am an Environmental Specialist in the Community
and Environmental Needs Division of the Office of
Airports in the Federal Aviation Administration. I
have been employed in this office since October 1990.
My duties include reviewing environmental docu-
ments for technical sufficiency, including air quality
analyses.
2. I graduated from University of Pittsburgh, Pitts-
burgh, Pennsylvania with Bachelor of Science degree
in Biology in 1974. I obtained a Master of Science in
Fisheries Biology from Frostburg State College, Frost-
burg, Maryland in 1980.
3. Following my review of the affidavit of James A. Case
dated February 29, 2000 filed by petitioners in the
above-referenced matter, I have determined that the
App. 53
estimate of emissions in the air quality analysis sub-
mitted by Kansas City to the FAA in support of a
categorical exclusion (Appendix C of Volume I of the
Environmental Documentation Report, Petitioners’
Appendix APP 796-809) contained a mathematical
error.
The calculations in Attachment C to Appendix C for
carbon monoxide (CO) emissions (Petitioners’ Appen-
dix APP 806) assumed that the number of vehicles
(cars) projected to travel to the facility in the year
2000 was 389. This is incorrect. Based upon the Daily
Traffic Projections for M-150 West of U.S. 71 in
Appendix A, Volume 1 of the Environmental Docu-
mentation Report, Traffic Study for Richards-Gebaur
Intermodal Facility dated June 1998, Petitioners’
Appendix APP 696, 389 cars are projected to travel to
the facility each day.
Assuming that there is a 251-day work year in the
year 2000, I recalculated the potential emissions of
hydrocarbon (HC) (used to estimate volatile organic
compounds), nitrogen oxides (NOx), and CO using
the formula in Attachment C, Appendix C. The
assumption of a 251 day work year in the year 2000 is
consistent with the 250 day work year assumption
made by Kansas City’s consultant in preparing the
noise analysis for the intermodal facility (Appendix D
of Volume 1 of Environmental Documentation Report,
Huff & Huff Calculation Sheet, Assumptions, Peti-
tioners’ Appendix APP 836).
I used the worst-case emission factors (EF) set forth in
Attachment B, Appendix C (Mobile5 output) to pro-
ject emissions. Petitioners’ Appendix APP 803-804.
According to Attachment C, among other things,
these emission factors are based upon the assumption
10.
App. 54
that vehicles travel 10 mph for 2.184 miles, the dis-
tance from the center of the intermodal facility to U.S.
71.
For cars, which are designated light duty gas vehi-
cles, or LDGV, the worst-case emission factors in the
year 2000 are: HC-14.14, NOx-2.24, and CO-113.61.
For trucks, which are designated heavy-duty diesel
vehicles, or HDDV, the emission factors are: HC-3.34,
NOx-13.84, and CO-20.80. (Petitioners’ Appendix
803).
For example, hydrocarbon emissions for cars in the
year 2000 were calculated as follows: EF (14.14) x
distance traveled (2.184) x number of vehicles (389 x
251) = (30.9) x (97,639) = 3,017,045.1 grams per year.
Grams were converted into tons by dividing the total
grams per year by 454, the number of grams in a
pound, and then tons were determined by dividing
the number of pounds by 2000, the number of pounds
in a ton. 3,017,045.1 grams per year/454 grams/
pound = 6,645 pounds/year. 6,645 pounds/yr/2000 =
3.3 tons.
For the year 2018, I calculated emissions by assuming
that there would be a 365-day work year. The worst-
case emission factors in the year 2018 for cars, or light
duty gas vehicles, are: HC-11.44, NOx-1.97, and
CO-83.32. The worst-case emission factors for trucks,
or heavy duty diesel vehicles, are: HC-3.14, NOx-8.51,
and CO-20.07. (Petitioners’ Appendix APP 804).
The following tables set forth the recalculated emis-
sion estimates:
App. 55
Year 2000 Emissions
HC (VOC)
tons/yr. NOx tons/yr. CO tons/yr.
Cars 3.3 0.5 26.7
Trucks 1.1 4.6 6.9
Year 2018 Emissions
HC (VOC)
tons/yr. NOx tons/yr. CO tons/ yr.
Cars 13.7 2.4 99.9
Trucks 4.6 12.3 29.1
I declare under the penalty of perjury under the laws of
the United State [sic] of America that the foregoing is true
and correct.
/s/ Ed Melisky
Ed Melisky
Executed on April 10, 2000
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.