Opposition Brief — Communities, Inc. v. Busey

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OCTOBER TERM, 1992

COMMUNITIES, INC., AND DULWORTH & RIVES, INC.,

PETITIONERS

JAMES B. BUSEY, ADMINISTRATOR,

FEDERAL. AVIATION ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROGER B. CLEGG

KENNETH P. QUINN Acting Assistant Attorney

Chief Counsel General

RONN E. HARDING PETER R. STEENLAND, JR.

Deputy Assistant Chief | M. ALICE THURSTON

Counsel Attorneys

Federal Aviation Department of Justice

Administration Washington, D.C. 20530

Washington, D.C. 20591 (202) 514-2217

QUESTION PRESENTED

Whether the Federal Aviation Administration prop-

erly approved the proposed expansion of the Standi-

ford Field Airport in Louisville, Kentucky.

a ee ee .

TABLE OF CONTENTS

Page

Opinions below ............. {shes 061A LREINE SEE ER 1

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TABLE OF AUTHORITIES

Cases:

Allison Vv. Department of Transportation, 908 F.2d

| Be 8 A | a | |) 11

Citizen Advocates for Responsible Expansion,

Inc. V. Dole, 770 F.2d 423 (5th Cir. 1985)... 11

Citizens Against Burlington, Inc. Vv. Busey, 938

F.2d 190 (D.C. Cir.), cert. denied, 112 S. Ct. 616

(1991) Seca ee erect 11

Citizens to Preserve Overton Park, Inc. Vv. Volpe,

I I NB oc sin eavevasnenrnvexescaaneessecen 9

Druid Hills Civic Association Vv. Federal Highway

Administration, 772 F.2d 700 (11th Cir. 1985),

cert. denied, 488 U.S. 819 (1988) . eee » MB

Prestonia Area Neighborhood Ass’n v. Abramson,

797 S.W.2d 708 (Ky. 1990) _... eee 8

Robertson v. Methow Valley Citizens Council, 490

Un acaunnruncwsb ec esisssinlnaccousicaoince 7

Sierra Club v. Department of Transportation, 753

F.2d 120 (D.C. Cir. 1985) .. 11

Stop H-3 Association Vv. Dole, 740 F.2d 1442 (9th

Cir. 1984), cert. denied, 471 U.S. 1108 (1985). 11,138

Tiffany Fine Arts, Inc. v. United States, 469 U.S.

a oa a esas Onnarcasoniaes ke ieleLaeéceusns 15

Universal Camera Corp. Vv. National Labor Rela-

tions Board, 340 U.S. 474 (1951) 15

Statutes:

Airport and Airway Improvement Act of 1982,

§ 509 (b) (5), 49 U.S.C. app. 2208(b) (5) 2, 4,6

(IIT)

Statutes—Continued : Page

Department of Transportation Act, 49 U.S.C. 301

et seq.:

49 U.3.C. 308 (e) ............ 6

49 U.S.C. 303 (c) (1) | 4,9

Federal Aviation Act of 1958, 49 U.S.C. app. 1301

et seq. eed PERLE SRI OCHS REM PO SF AS, 2

National Environmental Policy Act of 1969, § 102

(2) (C) (i), 42 U.S.C. 4332 (2) (C) (i) 4

5 U.S.C. 706 (2) (A) 7

28 U.S.C. 1631 . 6

49 U.S.C. 106 (a) 4

49 U.S.C. 106 (g) ........... ete aneenieae {

Miscellaneous:

Department of Transportation, Federal Aviution

Administration: Final Environmental Impact

Statement, Standiford Field Airport, Louis-

ville, Kentucky (Nov. 1990) 5, 6, 10, 12, 15, 16

55 Fed. Reg. 50,586 (1990) —.....02..002 2. 5

§u the Suyprenw Court of the TWuited States

OCTOBER TERM, 1992

No. 92-231

COMMUNITIES, INC., AND DULWORTH & RIVES, INC.,

PETITIONERS

JAMES B. BUSEY, ADMINISTRATOR,

FEDERAL AVIATION ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

A4-A35) 1s reported at 956 F.2d 619. The record

of decision of the Federal Aviation Administration

(App., infra, la-52a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on February 15, 1992. A petition for rehearing was

denied on April 8, 1992. On June 30, 1992, Justice

Stevens extended the time for filing a petition for a

(1)

writ of certiorari until August 1, 1992. The petition

was filed on July 31, 1992. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

These consolidated cases arise out of a proposed

expansion of the Standiford Field Airport in Louis-

ville, Kentucky. On January 7, 1991, the Federal

Aviation Administration (FAA) approved the ex-

pansion pursuant to the Federal Aviation Act of

1958, 49 U.S.C. app. 1301 et seqg., and Section 509

(b) (5) of the Airport and Airway Improvement Act

of 1982, 49 U.S.C. app. 2208(b) (5). App., infra,

la-52a. The court of appeals affirmed. Pet. App.

A4-A35.

1. Standiford Field Airport is located in a devel-

oped area within the city limits of Louisville, Ken-

tucky, with residential neighborhoods primarily to the

north, industrial areas to the south, and various

residential and commercial centers or strips to the

east and west. For years, political, civic, and busi-

ness leaders in the area have been concerned with

increasing congestion at the airport. The problem has

worsened in recent years, as the airport has been a

national hub for United Parcel Service (UPS) since

1981. Forecasts prepared for the local airport au-

thority indicated that the capacity of the airport

would be exceeded during certain peak hours by 1992.

Pet. App. A6-A7; App., imfra, 6a; Schimpeler-

Corradino Associates, Evaluation of Airport Facility

Needs at Standiford Field: Technical Report No. 1,

Forecast of Aviation Activities at vii (Jan. 5, 1988),

C.A. App. 572.

The local airport authority developed about two

dozen alternatives for improving the airport, includ-

ing a new airport site, and commissioned a detailed

study of the five most promising. See Pet. App. A33.

The study determined that the only feasible alterna-

tive (Alternative 5C) was to construct two new paral-

lel north-south runways on the existing airport site.

See Schimpeler-Corradino Associates, Evaluation of

Airport Facility Needs at Standiford Field: Final Re-

port, a Strategy for Improvement (June 1988) [here-

inafter Strategy for Improvement], C.A. App. 515.

An alternate plan (Alternative 3E) to build a north-

south runway east of the existing runway 1-19,

paired with a close-in parallel ranway west of run-

way 1-19, was rejected because it was ‘‘the most

expensive option, requiring numerous unique and dif-

ficult engineering solutions” and because of proximity

to a neighboring Ford plant. Strategy for Improve-

ment, supra, at 20, C.A. App. 542. Another alternate

plan (Alternative 4) to build an east-west runway

parallel to runway 11-29 was rejected ‘“‘because the

east-west parallel runway pairing would result in

almost all flights passing over the noise-sensitive

areas east and west of the airport. Additionally, the

new runway would be too remote and too short * * *,

and Jefferson County’s only landfill would be closed,”’

leaving the area without adequate waste disposal

facilities. Strategy for Improvement, supra, at 20-

21, C.A. App. 542-543. See generally Schimpeler-

Corradino Associates, Hvaluation of Airport Facility

Needs at Standiford Field: Technical Report No. 3,

Selection of Preferred Alternative(s) (Apr. 1988),

C.A. App. 750. Accordingly, in 1988 the authority

approved Alternative 5C, the plan to construct two

new parallel north-south runways. See Pet. App.

A8-A9,

2. The authority applied to the FAA for a grant

to defray costs of the expansion.’ Several federal

statutes constrained the FAA’s discretion to approve

the application. First, pursuant to Section 509(b) (5)

of the Airport and Airway Improvement Act of 1982,

the Secretary cannot approve such an application if

the project is

found to have significant adverse effect [on nat-

ural resources] unless the Secretary shall render

a finding; in writing, following a full and com-

plete review, which shall be a matter of public

record, that no feasible and prudent alternative

exists and that all reasonable steps have been

taken to minimize such adverse effect.

49 U.S.C. app. 2208(b) (5). Similarly, the Depart-

ment of Transportation Act provides that the Secre-

tary can approve a project that would “use * * * land

of an historic site of national, State, or local signifi-

cance * * * only if * * * there is no prudent and

feasible alternative to using that land.” 49 U.S.C.

303(c)(1). Finally, Section 102(2)(C)(i) of the

National Environmental Policy Act of 1969 (NEPA)

provides that “‘all agencies of the Federal Government

shall * * * include in every recommendation or report

on proposals for * * * major Federal actions signifi-

cantly affecting the quality of the human environ-

ment, a detailed statement by the responsible official

on * * * the environmental impact of the proposed

action.” 42 U.S.C. 4332(2) (C) (1).

1The FAA “is an administration in the Department of

Transportation,” 49 U.S.C. 106(a), headed by the Admin-

istrator of the FAA. The Administrator is obligated to carry

out “duties and powers of the Secretary related to aviation

safety (except those related to * * * hazardous materials).”

49 U.S.C. 106(g).

To determine whether the proposed expansion com-

plied with these various statutory provisions, the FAA

prepared an Environmental Impact Statement, which

was completed in November 1990. See 55 Fed. Reg.

50,586 (1990) (notice of availability). The FAA

agreed with the local authority’s conclusion that Alter-

native 5C was “the only practical and feasible alterna-

tive, given the disadvantages of the other alternatives.”

Department of Transportation, Federal Aviation

Administration: Final Environmental I mpact State-

ment, Standiford Field Airport, Louisville, Kentucky,

3-17 (Nov. 1990) (EIS). It explained that ‘“Alterna-

tive 3E would be extremely inefficient, pose severe

engineering rquirements, and would not satisfactorily

meet the forecast airside capacity need.” [hid. Simi-

larly, the report concluded that “Alternative 4 would

be extremely inefficient” for several reasons: it would

result in almost all flights passing over noise-sensitive

areas, require a second FAA tower, result in exces-

Sive taxi time for aircraft, because of the remoteness

of the runway (more than four miles from the term:-

nal), and would require closing the only landfill in

the area. [hid.

Another significant aspect of the EIS was analysis

of increased noise that would result from the airport

improvement project. In accordance with its cus-

tomary practice, the FAA evaluated noise by use of

a metric referred to as Ls, which portrays the aver-

age day-night noise Jevel, applying ten times the

normal weight to noise between 10 p.m. and 7 a.m.

The FAA operates in accordance with 2 federal,

multi-agency determination that any level below 65

decibels is compatible with residential uses, so it

draws a contour line surrounding the areas that

would experience an L» level of greater than 65

decibels. At the request of the EPA (which developed

the Le. methodology), the FAA also agreed to include

in the EIS Single Event Level noise data, which show

the volume of noise events. Pet. App. A16-A18; EIS

5-154 to 5-155.

On January 7, 1991, the FAA issued a Record of

Decision, formally approving the project and federal

funding of the Louisville Project. App., infra, la-52a.

The decision reiterated the conclusion of the EIS

that Alternative 5C was “the only practical and

feasible expansion alternative.” Jd. at 10a; see id.

at 48a (emphasis omitted) (‘[t]here is no feasible

and prudent alternative to the location of the airport

and runways ard all reasonable steps have been taken

to minimize adverse effecis”). The FAA noted that

noise resulting from the project would affect histori-

cal sites in the area, but concluded that ‘‘planning

has been incorporated in the project to minimize or

mitigate the impacts, * * * and * * * there is no

feasible and prudent alternative * * * that would

provide greater relief (except closing Standiford

Field).” Jd. at 34a.

3. Petitioners commenced two proceedings chai-

lenging the FAA’s action, a petition for review in

the Sixth Circuit, and an action in the United States

District Court for the Western District of Kentucky,

which was transferred to the Sixth Circuit pursuant

to 28 U.S.C. 1631. Petitioners contended that the

approval was inconsistent with NEPA; 49 U.S.C.

303(c); and 49 U.S.C. app. 2208(b) (5). The court

of appeals rejected petitioners’ contentions and af-

firmed the FAA’s decision in its entirety. Pet. App.

A4-A35.

a. First, the court of appeals rejected petitioners’

contention that the FAA improperly failed to con-

sider whether historical sites outside the 65 decibe!

La. contour would be “used” by the project because of

increased noise levels at those sites. Pet. App. A16-

A27. The court noted that it should uphold the

FAA’s decision unless it was “arbitrary, capricious,

an abuse of discretion, or otherwise not in accord-

ance with law,” id. at A18 (quoting 5 U.S.C.

(06(2)(A)), and that other circuits already had

rejected similar challenges to the FAA’s use of the

Li. methodology, Pet. App. Ai9-A21 (citing cases).

In light of the record before it, the court concluded

that, “there is no basis for holding that the FAA’s

noise analysis was an abuse of discretion.” Jd. at

A22. Accordingly, the court agreed with the FAA’s

conciusion that the project would not use historical

resources located outside the 65 Lu contour. Ibid.

b. The court also rejected petitioners’ claims that

the FAA violated NEPA by failing to give sufficient

consideration to the effect of its decision on hazardous

wastes and transportation. Pet. App. A27-A30. With

respect to the hazardous waste point, petitioners con-

tended that the FAA failed to develop an adequate

mitigation plan. The court disposed of this claim by

reference to this Court’s decision in Robertson v.

Methow Valley Citizens Council, 490 U.S. 332 (1989),

Which held that NEPA does not require an agency

to present a fully developed mitigation plan before

making a decision. Pet. App. A27-A28. Examining

the agency’s consideration of these issues, the court

concluded that the EIS demonstrated “precisely the

type of analysis explicitly approved of in Robertson—

identification and discussion of various potential

measures to mitigate the environmental impact of

the [project].” Jd. at A28. With respect to the

transportation issue, the court concluded that it was

appropriate for the FAA to defer analysis of the

possible impact on transportation that might occur

if a certain road were reconstructed, given that the

reconstruction would not occur for at least ten years.

Id. at A29-A30.

ce. The court also rejected petitioners’ contention

that the FAA failed to give adequate consideration

to the proposed acquisition and destruction of the

Standiford, Prestonia, and Highland Park neighbor-

hoods.” Pet. App. A80-A32. The court noted that the

land acquisition program was “fully discussed” in

the EIS and the Record of Decision, id. at A31, and

concluded that the FAA performed a suitable envi-

ronmental analysis, id. at A532.

d. Finally, the court concluded that the Agency’s

analysis of alternative configurations to the Airport

Improvement Project was reasonable. Pet. App. A32-

A35. The court noted that the local airport authority

had considered about two dozen alternatives, and had

pared them down to five, of which it had conducted

a detailed study, 7d. at A33, and that the EIS included

a “thorough discussion” of each of those five alterna-

tives, as well as “an explanation of why the alterna-

tive was either imprudent or infeasible.” /d. at A354.

Characterizing the record as “replete with exten-

sive documentation of a very detailed evaluation,”

the court concluded that the FAA “reasonably re-

jected several of the alternatives that presented severe

2 Based on the view that excessive noise was: incompatible

with the residential nature of these neighborhoods, local au-

thorities adopted ordinances to relocate residents from these

areas. Petitioners challenged this action in the state courts,

securing a holding from the Kentucky Supreme Court that

the ordinances were unconstitutional. See Prestonia Area

Neighborhood Ass’n V. Abramson, 797 S.W.2d 708 (Ky. 1990).

Since that time, the airport authority has proceeded to ac-

quire the properties under other statutory authority. See Pet.

App. Al14-A16.

’

engineering requirements,” and also found the others

to be “imprudent for reasons including their high

cost, safety hazards, operational difficulties, and dis-

ruptions to landiills and noise-sensitive areas.” /d.

at A34-A35. In sum, the court concluded, petitioners’

challenge to the review process “ignore[s] the enor-

mous record evidence on feasibility.” Jd. at A35.

ARGUMENT

1. Petitioners first contend that the court of ap-

peals erred in not overturning the Secretary’s deci-

sion that the project was the only “prudent and

feasible alternative,” 49 U.S.C. 303(c) (1); they

argue that the Secretary instead should have approved

Alternatives 4 and 3E. Pet. 13-38. This claim does

not warrant review, however, because the court of

appeals correctly upheld the agency’s decision: more-

over, petitioners offer no substantial reason to believe

that the question whether the Secretary properly eval-

uated the alternatives in this case raises any legal

issue of general significance.

a. As this Court has explained, the Secretary may

accept an alternative that uses protected resources

if he “find[s] * * * as a matter of sound engineer-

ing it would not be feasible to build the [project |

along any other route,” or if other alternatives pre-

sent “unique problems” or cause extraordinary costs

or community disruption. Citizens to Preserve Over-

ton Park, Ine. v. Volpe, 401 U.S. 402, 411. 413

(1971). As the court of appeals noted, “the ad-

ministrative record is replete with extensive docu-

mentation of a very detailed evaluation,” which

“fully explain[s]” “[t]he reasons for deeming the

other alternatives infeasible.” Pet. App. A34. First,

the Secretary’s review of Alternative 3E concluded

that it would be ‘‘extremely inefficient, pose severe

engineering requirements, and would not satisfac-

torily meet the forecast airside capacity need.” EIS

3-17. As the Environmental Impact Statement ex-

plained, the ‘“[i]ncrease in airfield capacity [under

this alternative would be] insufficient to meet fore-

east needs for aircraft arrivals.” Jbid. Similarly,

the Secretary agreed that Alternative 4 was infeasi-

ble. bid. It would have created a single new run-

way far from the main terminal and at a great

distance from the UPS terminal, which would require

the use of a second FAA tower to control] operations.

Equally important, it would have required closure of

the only landfill facility serving Louisville and Jeffer-

son County and five surrounding counties. See ibid.

The Secretary reasonably determined that creating

an alternative landfill would pose problems of pro-

hibitive dimensions.

Petitioners argue at length (Pet. 17-21) that the

Secretary was required to select the alternatives they

prefer, based on their contention that the record

contains no evidence that those alternatives would

have used any protected resources. The problem with

this argument, of course, is that the statute does not

require the Secretary to select any alternative that

does not use protected resources; it requires him only

to select ‘“‘prudent and feasible’ alternatives. Be-

sause the Secretary properly determined that the

alternatives petitioners prefer were not prudent and

feasible, he correctly rejected them.

b. Petitioners also contend (Pet. 32-38) that the

decision of the court of appeals reflects less careful

review of the Secretary’s decision than the review

evidenced by various decisions of other courts of

appeals. We disagree. None of the cases cited by

petitioners supports this contention. First, three of

the cases actually upheld the Secretary’s determina-

tions. See Citizens Against Burlington, Inc. v. Busey,

938 F.2d 190, 203-204 (D.C. Cir.) (Thomas, J.) (de-

termination that alternatives were imprudent), cert.

denied, 112 S. Ct. 616 (1991); Allison vy. Department

of Transportation, 908 F.2d 1024 (D.C. Cir. 1990)

(determination that noise from a project would not

“use” protected resources); Sierra Club vy. Depari-

ment of Transportation, 753 F.2d 120 (D.C. Cir.

1985) (same). Second, Citizen pe drt Re-

sponsible Expansion, Inc. y. Dole. 770 F.2d 423, 441-

442 (5th Cir. 1985), rejected the Secretary’s pane’

nation that the project would nos “use” certain prop-

erties; it did not address the standard for determining

whether alternatives are feasible and prudent. In the

remaining cases, the courts did decide, on the records

before them, that the Secretary erred in determining

that other alter nativ es were not feasible and prudent.

see Dr nid eaete ¢ Civic Association vy. Federal Highway

idministration, 772 F.2d 700, 716-718 (11th Cir.

1985) finiettiies determination that rested on “gen-

eralized and often contradictory attention” to the

issue), cert. denied, 488 U.S. 819 (1988) : Stop H-2

Association vy. Dole, 740 F.2d 1442, 1450-1458 (9th

Cir. 1984) (rejecting determination where Secretary

“could not have reasonably believed” that there was

no feasible and prudent alternative), cert. denied, 471

U.S. 1108 (1985). But the only substantiation peti-

pint can offer for their contention that the court

of appeals applied a different standard in reviewing

the record in this case is that the court of appeals

concluded that the Secretary did not err. Given the

deferential standard of review, and the defects in the

administrative records at issue in Druid Hills and

Stop H-3, that contention does not show disagreement

among the courts of appeals concerning the govern-

ing legal standard and thus does not justify review

by this Court.

2. Petitioners also argue (Pet. 39-44) that the

Court should grant review to resolve an alleged con-

flict in the circuits regarding the propriety of re-

jecting all alternatives that do not satisfy the trans-

portation needs of the proposed project. In _ their

view, the Secretary’s decision to reject the ‘“‘no-action

alternative was improper because it rested on nothing

more than the determination that the no-action alter-

native would not satisfy the transportation needs of

the project. This argument ignores the Secretary’s

detailed consideration of the need for airport im-

provement. First, as the Record of Decision reflects,

the Secretary considered whether the needs of the

community could be met by rail or other modes of

travel. In light of the nature of UPS’s operations,

the Secretary reasonably concluded that only an in-

crease in airport capacity would accommodate UPS’s

needs. App., infra, 8a-9a. Similarly, the Environ-

mental Impact Statement concluded that the need for

increased capacity was so serious that the no-action

alternative “would have continuing detrimental effects

on the local and regional econemy.” EIS 3-1.

Petitioners err in asserting (Pet. 40-41) that the

decision of the court of appeals’ conflicts with the

%’ Petitioners suggest in their statement of the case (Pet.

5-8) that airport use since the time of the Secretary’s decision

indicates that the Secretary erred in evaluating the need for

the project. That type of post-decision, non-record, evidence,

however, has no relevance to the merits of the decision, which

necessarily rested on evidence available at that time.

*It is not surprising that the court of appeals did not ex-

pressly address this point, because it was not presented as a

decision of the Ninth Circuit in Stop H-3 Association

v. Dole, 740 F.2d 1442 (1984), cert. denied, 471 U.S.

1108 (1985). The Stop H-3 court did not hold that

the Secretary is barred from considering transporta-

tion needs in determining whether a project should

be constructed; such a holding would vitiate the very

purpose of the statute. Instead, the court “merely

hf{e]ld that the record before [it] df[id] not demon-

strate that the stringent requirements of section 4(f)

have been satisfied” with respect to the determination

that the no-action alternative would be an imprudent

alternative to the construction of a highway. Jd. at

1458. As with petitioners’ prior claim, there is no

reason to believe that the court of appeals’ fact-

specific decision on this point shows judicial disagree-

ment on the governing legal standards or otherwise

raises a question of general legal significance.

Petitioners suggest that the Eleventh Circuit’s de-

cision in Druid Hills recognized a conflict between

the law of the Eleventh Circuit on this issue—which

would allow rejection of an alternative simply because

it would not meet the needs a project was designed

to meet—and the law of the Ninth Circuit established

in Stop H-3, which requires an additional finding

that the need for the project is sufficiently substantial

to justify use of the historical resources, See Pet. 43

(citing Druid Hills, 772 F.2d at 715-716 n.18). As

Wwe explain above, the Secretary’s decision in this case

did not merely assume that the no-build alternative

was Inadequate; it rested on a considered determina-

tion that the project was vital to the region’s economy.

separate argument in the court of appeals, and received only

cursory treatment in petitioners’ briefs in that court. See

Pet. C.A. Br. 18; Pet. C.A. Reply Br. 19.

Accordingly, this case apparently would have been

decided in the same way even under the Ninth Cir-

cuit’s view of the law. Hence, even if the issue had

been properly presented and decided, this case would

not provide an appropriate vehicle to consider the

conflict noted in Druid Hills.

3. Finally, petitioners contend (Pet. 44-62) that

the Secietary’s decision violated NEPA.’ Petitioners

do not identify any specific legal question raised by

the decision; rather, they simply suggest that the

Secretary’s determination is not adequately supported

by the record. Accordingly, there is no reason to be-

lieve that this contention raises a legal question of

general significance. In any event, petitioners’ spe-

cific criticisms of the record are meritless.

a. First, petitioners argue (Pet. 54-58) that the

Secretary’s analysis was “fundamentally skewed”

because of its reliance on the assumption that the

Highland Park and Standiford neighborhoods would

be condemned even under the no-action alternative.

This contention is not supported by the record. As

the court of appeals explained,

the [local] governments have been and

vemain committed to removing certain residen-

tial properties from the three neighborhoods near

[Standiford Field] that are currently heavily

impacted by aircraft noise. They have demon-

strated that commitment by moving ahead with

a land acquisition program—using strictly local

money—long before there was any assurance

that the airport project would, or could, be built.

5To the extent petitioners’ NEPA contention is based on

petitioners’ erroneous substantive claims (see Pet. 60-61), it

is answered by the foregoing discussion.

Pet. App. A31; see EIS Addendum No. 1, at 1 (“the re-

location of incompatible uses (homes, churches, neigh-

borhood businesses) * * * ig not dependent or con-

tingent upon the [project]”); EIS 1-9 (“Urban

Renewal Plans have been adopted and are being

pursued independently by the City of Louisville and

Jefferson County in four adjacent neighborhoods.” ).

Because petitioners’ contention cn this point rests on

the assumption that the Secretary and the court of

appeals both erred in reaching this factual conclu-

sion, there is no reason for this Court to grant review.

See Universal Camera Corp. vy. National Labor Re-

lations Board, 340 U.S. 474, 490-491 (1951) (this

Court rarely will review court of appeals determina-

tions upholding agency findings); ef. Tiffany Fine

Arts, Inc. v. United States, 469 U.S. 310, 317 n.5

(1985) (factual questions upon which lower courts

agree generally are not suitable for review by this

Court). In any event, as the court of appeals noted,

the program “‘is fully discussed in the [EIS], just as

the |Kentucky judicial decision regarding the pro-

gram] is fully discussed in the [Record of Decision }.”’

Pet. App. A381; see App., infra, 38a-46a (discussing

the condemnation program).

b. Petitioners also argue (Pet. 58-59) that the

Secretary should be required to issue a Supplemental

Environmental Impact Statement giving further con-

sideration to single-event noise data that are not

relevant under the FAA’s L: methodology. This

argument, however, can have merit only if it were

improper for the FAA to rely on its expert conclusion

that the L» methodology is an appropriate tool for

measuring the effects of airport noise. In light of

the court of appeais’ conclusion that the FAA’s

methodology complies with -applicable statutory re-

quirements, see Pet. App. A16-A27, and petitioners’

determination not to press that issue in this Court,

see Pet. 59, petitioners’ argument regarding consider-

ation of the single-event data is beside the point and

thus does not merit review.° |

ce. Finally, petitioners argue (Pet. 61-62) that the

Secretary did not adequately consider the impact of

the project on transportation, because he did not

consider the effect a permanent closure of Crittenden

Drive would have on transportation in the area. The

EIS correctly noted that the road would be closed for

at least ten years and it thoroughly discussed the

expected dislocation the closure would cause. EIS

5-67. The EIS also stated that the Secretary would

defer examination of the environmental impact of

any relocation of the road until plans for relocation

were developed. /d. at 1-10. As the court of appeals

concluded (Pet. App. A29-A30), this approach is

entirely reasonable.

®‘In any event, as the court noted (Pet. App. A21), the

FAA did analyze the single-event data in this case, so there

would be little or no reason for a Supplemental Environ-

mental Impact Statement even under petitioners’ view of the

appropriate methodology.

S ed

ae |

CONCLUSION

The petition for a writ of certiorari should

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROGER B. CLEGG

Acting Assistant Attorne y

General

PETER R. STEENLAND, JR.

M. ALIC2 THURSTON

Attorneys

KENNETH P, QUINN

Chie f Counse

RONN E. HARDING

De puty Assistant ( he Lé f

Counsel

Fe di ral A viat 0)

Administration

OCTOBER 1992

APPENDIX

RECORD OF DECISION

FOR

PROPOSED TWO NEW PARALLEL RUNWAYS

AND ASSOCIATED WORK

STANDIFORD FIELD

LOUISVILLE, KENTUCKY

Date: January 7, 1991

SPARTMENT OF TRANSPORTATION

KRAL AVIATION ADMINISTRATION

SOUTHERN REGION

ATLANTA, GEORGIA

VI.

VII.

Vill.

IX.

TABLE OF CONTENTS

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FEDERAL ACTIONS REQUIRED TO IMPLE-

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Department of Transportation

Federal Aviation Administration

Record of Decision

Proposed Two New Parallel Runways and

Associated Work

Standiford Field

Louisville, Kentucky

I. PROPOSED PROJECT:

The proposed project (commonly referred to as the

“Louisville Airport Improvement Program” or

“LAITP”) involves construction and operation of two

new parallel north-south runways including full

length parallel taxiways and installation of Category

III Instrument Landing Systems (ILS) for the south

ends of the runways and Category I ILS’s on the

north ends. The project also involves various asso-

ciated items including runway and taxiway lighting,

land acquisition. road relocations, relocation of the

Airport Traffic Control Tower (ATCT), and con-

struction of a new aircraft rescue and fire fighting

facility.

The Regional Airport Authority of Louisville and

Jefferson County, Kentucky (RAA) has submitted

an environmental assessment covering the proposed

project together with an appropriately reviewed Air-

port Layout Plan (ALP) and a preapplication for

federal assistance in the amount of $224 million.

The project is needed to enhance the capacity of the

national system of airports which is currently one of

the most critical issues in the aviation industry and

to meet current and forecasted air passenger and

cargo demands at Standiford Field (SDF).

Il. FEDERAL ACTIONS REQUIRED TO IMPLE-

MENT THE PROPOSED PROJECT:

The major Federal Aviation Administration (FAA)

actions are approval of an Airport Layout Plan and

approval to provide federal funding for eligible air-

port development projects. Major federal actions also

include issuance of a 404 permit by the U.S. Army

Corps of Engineers (the Corps).

Specific dependent elements of the FAA approval

actions include:

Determination of effects upon safe and efficient

utilization of air space.

Determination of conformance with FAA design

criteria and approval of construction plans and

specifications.

Implications concerning Federal Grant Agree-

ments with consideration of the provisions of

Federal Aviation Regulations (FAR, Parts 77,

150, 157, and 169).

Approval of revised Airport Certification Manual

(FAR, Part 139). '

Approvai of revised Airport Security Plan (FAR,

Part 107).

telocation and upgrading the existing Airport

Traffic Control Tower and Terminal Radar Ap-

proach Control (TRACON) facility.

Relocation of :

* Airport surveillance radar (ASR) ;

“ Instrument landing system, runway vis-

ual range (RVR), and associated visual nav-

igation aids (NAVAIDS) on Runway 1/19

to the new Runway 17R/35L;

Remote receiver facilities:

“ Airway Facilities Sector Field Office; and

“ FAA power and control cables serving the

airport facilities.

k-stablishment of new ILS’s, Distance Measuring

Equipment (DME), RVR, and approach lighting

syscems (ALS’s) for the new Runway 17L/35R.

Establishment of new flight procedures, including

visual and instrument procedures, missed ap-

proach procedures, and departure procedures of

each new runway (FAR, Part 95); cancellation

of existing procedures upon closure of Runway

1/19.

Development of FAA facility procedures for de-

parture headings, simultaneous approaches, air

traffic procedures and position responsibilities,

FAA Air Traffic Controller training for new

Scheme of airport operations, including new si-

multaneous approach procedures and facilities

and modified position responsibilities.

Development of new FAA video map for new

runway and airspace.

Planning for new FAA facilities (ATCT &

TRACON ) to include types of equipment, layout,

additional radar scopes, and radio equipment for

monitor positions.

Maintenance of close coordination with RAA and

appropriate FAA program offices, as required,

for safety during construction and runway

closures.

Approval of the Environmental Impact State-

ment (EIS).

II. PURPOSE:

The FAA supports the objectives of the proposed proj-

ect as being justified and needed based on air trans-

portation system capacity and aeronautical demand

at Standiford Field. System capacity is one of the

major issues facing aviation in the United States

today. SDF ranks 75th on the FAA list of top 100

airports based on 1989 passenger enplanements.

Standiford Field is also a cargo hub for the United

Parcel Service (UPS) small package services which

is a real growth area in the air cargo industry. One

indication of the magnitude of the small package

market is shown by the shipment data reported to the

Air Transportation Association. According to the

data reported for 1989, 15 carriers transported a total

of 409 million packages, which is a 16.9 percent in-

crease over the previous year. This represents $6.7

billion in revenues. UPS’s growth and commitment at

Standiford Field can be measured by the multimiilion

dollar facility presently being constructed for its

operation.

The National Transportation Policy Strategies for

Action published by the Department of Transporta-

tion in February 1990 lists six key themes in its

planned agenda to fulfill short and long term needs.

The first theme listed is “maintain and expand the

nation’s transportation system.”

The capacity at SDF will be exceeded in some im-

portant, peak afternoon and evening hours by 1992.

The purpose of the project is to enhance the capacity

of the national system of airports as well as meeting

current and forecasted air passenger and cargo de-

mands at SDF.

The existing airport configuration permits 26 TFR

arrivals per hour and this capacity is currently being

exceeded on a frequent basis. By 1992, Instrument

Flight Rules (IFR) arrival capacity will be exceeded

daily between 11:06 p.m. and 1:00 a.m. IFR condi-

tions occur eight percent of the time {approximately

one month per year).

Thirty Visual Flight Rules (VFR) and IFR de-

partures can be accommodated daily. This capacity

will be reached or exceeded at 1:00 a.m. to 2:00 a.m.

and 4:00 p.m. to 5:00 p.m. by 1992.

Capacity constraints will initially impact the UPS

operation most severely because Louisville is the cen-

tral distribution point for the Next Day and Second

Day Air Delivery service and there is little flexibility

in this type of operation. As the airport activity level

increases, the delays will become more pronounced

and widespread. The FAA concludes that the system

capacity increases needed to fill this demand should

be accomplished at SDF. The air transportation serv-

ice is very important to Louisville and its economy as

well as the national air transportation system. RAA

and FAA have already invested significant effort and

moneys into the facilities at the airport.

IV. ALTERNATIVES:

In determining the best solution for the SDF capacity

problems, the following alternatives were considered:

No action.

New Site/New Airport.

Service from Other Airports.

Alternative Modes.

Improvement, I:xpansion of Existing Airport.

Analysis of each of the available alternatives indi-

cates that the two viable alternatives are ‘‘no action”

and the proposed project. While the FAA recognizes

that detailed, in-depth consideration is being given to

only two alternatives, consideration has been given

to other feasible alternatives to the extent that they

were reasonable and viable. Alternative modes al-

ternate is being rejected on the basis of high cost

of automobile and bus transportation for distances

over 250 miles particularly in the case of business

travel due to the time element. Rail transportation is

being rejected on the basis that there is no rail pas-

senger service at Louisville as well as the fact that

it could not provide the nationwide overnight package

service provided by the air cargo operations at SDF.

The FAA has also considered the alternative of the

UPS central “hub” operations being located at an air-

port other than SDF. UPS statements communicated

to the RAA and FAA throughout the process of de-

veloping the proposed project do not indicate any

corporate disposition to such an alternative. While

the FAA does not control UPS corporate decisionmak-

ine and should not interfere with its business choices,

it is recognized that proceeding with the “no action”

alternative could well be a factor in its future conduct

of business at SDF and potentially elsewhere. How-

ever, in light of the expressed commitments of UPS

to its continuing presence at SDF to the extent the

airport facilities permit, and the absence of any dis-

cernable indication of the likelihood of a change in

its intentions, the FAA believes it would be an un-

productive and unnecessary exercise to engage itself

in protracted speculation of what might be the case

“if” or when UPS altered its declared course in its

commercial enterprises as they are constituted and

projected at SDF. It has and continues to make sub-

stantial economic and capital investment in its Louis-

ville facilities. The central issue is whether airport

improvements should be accomplished at SDF to pro-

vide increased capacity to meet the demands for UPS

and passenger service.

For years political, civic, and business leaders in the

Louisville area have been concerned with the growing

lack of adequate air transportation service and facili-

ties to attract that service. An inquiry into the siting

and construction of a new, larger airport to serve

Louisville and surrounding areas has a long history.

Preliminary work began as far back as the early

1970’s when, as discussed at length in the Final En-

vironmental Impact Statement (FEIS), numerous

sites were studied to determine the ones most accept-

able from a number of competing objectives. An

extensive FAA funded site/environmental study was

conducted as part of the planning. Eventually after

a lengthy process, the planning for a new airport,

even at the identified preferred site, was abandoned.

This was due largely to the high costs, the lack of a

responsible sponsor for the airport site, as well as the

lack of state and local political, institutional, and pub-

lic support for the project. The new airport proposal

had also met the opposition of the Governor.

The more recent efforts to improve and develop air

transportation in the Louisville area, revisited those

10a

prior studies and built upon them. Based on the up-

dated study, it is evident and clear that there remains

no viable support for constructing a new airport at

any of the proposed alternative sites. The environ-

mental problems associated with such a project today

would be considerable. There remains no state or local

political or public support for a new airport site; there

is no responsible operator/sponsor for a new airport.

Absent any practical viability for considering a new

airport at a different site, a realistic assessment of the

local situation indicates that the choices presented to

the FAA are effectively limited to the issues of im-

proving or not improving the Louisville airport and

utilizing essentially its existing site.

Thus, it is important that RAA have built into its

proposed project many features designed to avoid air-

port design and operation problems as well as being

designed with a great deal of sensitivity to the airport

environment. Five separate alternatives for expan-

sion of the existing airport were initially developed,

evaluated, and considered in selecting the proposed

configuration of the project as the most practical and

feasible. The “preferred” alternative, subsequently,

was further modified to realign the runways when,

in response to public input, it was found that it would

improve the project and mitigate several of the prob-

lems that had been identified.

Five different alternatives for expansion of the exist-

ing airport were considered and evaluated before

selecting the proposed project as the only practical

and feasible expansion alternative. The FAA also

evaluated an additional runway alignment suggested

during the comment period and found it unacceptable. |

lla

The possibility of altering the alignment of the west

runway was examined. The flight track could be

moved about 1,000 feet to the west of Central Park

by rotating the south end of the west runway to the

east. The separation criteria for parallel runways

operating simultaneously and independently under

IFR conditions could be satisfied. Parallelism of

*=2.5 degrees must be maintained to achieve the ca-

pacity increase necessary. Some benefit for Old

Louisville could be obtained. However, the benefits

would be outweighed by additional relocation require-

ments, project delay, and increased noise impacts to

other portions of the community.

Based on reasons discussed in Section 3 of the FEIS

and summarized above, as well as the fact that the

airport authority and other state and local govern-

mental entities were committed to the proposed project

through bonds and state legislation authorizing state

funding for the project, the FAA has concluded that

there are only two reasonable alternatives relative to

the decisionmaking process in this situation. These

alternatives are: (1) the proposed project, and (2)

the no action alternative. The proposed project is the

preferred and environmentally preferred alternative.

A demand on the air transportation services, includ-

ing cargo and package service, will continue to in-

crease at SDF with or without the project; with the

project, improvements can be made which will satisfy

that demand and, at the same time, accomplish sig-

nificant improvements in the compatibility of the

airport to its surrounding community by environ-

mental enhancements and mitigation built into the

project and related activities.

12a

V. FAA INVOLVEMENT

The FAA has been fully involved in the project proc-

esses, Representatives participated in the initial pre-

scoping meeting for the environmental assessment

(EA) on October 10, 1988, and the public hearings

on August 31, 1989, in addition to numerous other

meetings. The FAA also reviewed the EA and ac-

cepted the document on January 9, 1990. This docu-

ment was systematically examined for conformance

with FAA procedures and was found to be properly

prepared and addressed the environmental impacts

sufficiently to proceed with a DEIS. During this proc-

ess, RAA responded to numerous requests from FAA

for adidtional information and material to validate

various data. It was also revised as a result of com-

ments received during the public hearing process. The

FAA then conducted a scoping process based on the

EA. The Federal Register Notice of Intent to prepare

a DEIS was published on January 26, 1990. Based

on FAA review and comments received through the

scoping process, the DEIS was prepared and sub-

mitted for federal review and public comment. The

notice of availability of the DEIS appeared in the

Federal Register of May 25, 1990. The comment

period ended July 9, 1990.

Above and beyond, but in light of, the environmental

process, the FAA is making the following determina-

tions, based on its application of applicable FAA

standards, criterion, and guidelines:

Straight-in approach procedures can be estab-

lished for each end of each runway (RWY’s 17L/

35R and 17R/35L). The procedures will be

Teena

l3a

aligned relative to the extended runway center-

lines (approximately 165 degree /345 degree),

A precision Instrument Landing System (ILS)

with Distance Measuring Equipment (DME);

Medium Intensity Approach Lighting System

with Sequenced Flashing Lights (MALSF), Run-

way Visual Range (RVR), Touchdown Zone

Lighting (TDZ), and Runway Centerline Light-

ing will provide category I approach capability

to RWY’s 17L and 17R. Expected landing mini-

mum is 200 feet above touch down and RVR 1800

feet visibility. When TDZ and runway centerline

lighting is not available, the RVR visibility mini-

mum would be 2400’.

A precision ILS with DME, High Intensity Ap-

proach Lighting System with sequenced flashing

lights (ALS-2), RVR, TDZ and Runway Center-

line lighting will provide category I/II /III capa-

bility with a landing minima of RVR 600 feet

visibility for RWY’s 35L and 35R. Taxiway

centerline lighting would reduce the minima to

RVR 300’ visibility.

The configuration will also provide non-precision

localizer approaches with an approach minimum

descent altitude of 250 feet above the highest

obstacle in the final approach segment and an

RVR minima of 5000’ visibility.

The ILS glide slope will be set at three degrees.

Approaching aircraft will not fly at an altitude

lower than the three degree slope. The exact

location of the glide slope facility will be deter-

mined in the detailed planning process.

l4a

The ALS land for each runway extends 2400

feet from the runway threshold along the ex-

tended runway centerline. The obstacle clearance

area is 200’ beyond the last light station. The

obstruction plane is at or below a 50:1 slope.

No objects may penetrate the light lane plane.

All land and clear areas necessary for the protec-

tion of FAA facilities must be provided by the

RAA.

The ILS final approach obstacle clearance sur-

face primary areas and its wide transitional sur-

faces are described in FAA Order 8260.3B,

TERMINAL INSTRUMENT PROCEDURES

(TERPS) HANDBOOK, and FAA Order

8260.86, CIVIL UTILIZATION OF MICRO-

WAVE LANDING SYSTEM (MLS). The

three degree glide slope requires a 34:1 obstacle

clearance slope for the inner section (10,000’)

and a 29.5:1 obstacle clearance in the outer sec-

tion (40,000’). Each side transitional obstacles

clearance surface is 7:1. These “imaginary” sur-

faces apply to each new runway approach end.

Category II, ILS touchdown area, missed ap-

proach area and side transitional obstacle clear-

ance surfaces {in accordance with Advisory

Circular 120-29) will apply to approach runway

ends of RWY’s 35L and 35R. This is in addition

to the Category TILS approach obstacle clear-

ance slopes. These surfaces must not be pene-

trated by obstacles.

Locator Outer Marker (LOM) sites may not be

available in the built up metropolitan area.

Therefore, Distance Measuring Equipment

l5a

(DME) must be installed at each localizer as a

substitute. DME fix error (+.5 nm) will apply

to required fixes and obstacle clearances.

Radar vectors to straight-in approaches will be

the rule, but procedure turn (PT) capability will

be provided as a back-up with each instrument

approach. Procedure turns may be designed on

the east side of the approach course for RWY’s

17L and 35R and on the left side for RWY’s

17R and 35L. An accomraodation with special

airspace R-3704 A/B will be necessary for pro-

cedure turn to RWY 35L. If not possible, no

procedure turn will be authorized for that ap-

proach and radar vectors will be required.

The instrument approach Category D (2.3 nm

radius) Circling Area for the airport must be

enlarged commensurate with the geographical

enlargement of the runway’s layout.

Existing RWY 1/19 will be closed after comple-

tion of RWY’s 17R and 35L. Its facilities (ILS,

RVR, approach lighting) would be expected to

be relocated to proposed new RWY 17R/35L.

Existing RWY 1/19 instrument approach pro-

cedures, missed aproach procedures, and depar-

ture procedures would be cancelled.

Runway 11/29 will remain open. However, no

usable site for RWY 29 glide slope antenna will

be available after commissioning of RWY 17L/

35R occurs. Therefore, precision ILS approaches

to RWY 29 will be cancelled and the glide slope

removed from service, Localizery RWY 29 non-

precision approach will remain usable only when

taxiing aircraft are held outside the localizer

16a

critical area. The critical area would be pene-

trated by aircraft using new RWY 17R/35L and

its associated parallel taxiways). Therefore,

usage of RWY 29 for landings would probably

be extremely limited. Runway 11 will retain a

VFR landing usage role. In the event a decision

is made to retain the GS on RWY 29, this will

preclude achieving CAT III minimums on RWY

35R. Additionally, it will restrict CAT II! mini-

munis to a decision height of 150 feet and visi-

bility to 1600 RVR. This would result in a lim-

ited net gain of only a 50 foot reduction in deci-

sion height and 200 foot reduction in RVR visi-

bility versus CAT I minimums.

For noise analysis purposes, the CAT IIT opera-

tions were split evenly between the two pavallel

RWY’s. If CAT III cannot be achieved for the

east RWY, then all CAT III operations must be

diverted to the west RWY. FAA records indi-

eate that only six days per year have CAT III

weather conditions varying from .5 to 4 hours

in duration. Because of the limited time frame

of CAT IIT conditions, the CAT III operations

were insignificant insofar as an impact on the

noise analysis. Therefore, a decision to limit

RWY 17L/35R to CAT I operations will not im-

pact the noise analysis.

Missed approach procedures to proposed RWY

17R/35L would be expected to utilize the missed

approach procedure currently existing for RWY

1/19, which turns west to DAMEN holding fix.

New missed approach procedures for RWY 17L

35R must be developed with a turn to the east

17a oe

probably to Louisville (IIU) VORTAC holding

fix.

Cortrols for existing taxiways at the approach

end of proposed RWY 17L must be redesigned

to preclude aircraft taxiing through ILS obstacle

clearance slope surfaces (including the side tran-

sitional slope).

The Airport Layout Plan (ALP) was submitted

y KAA in preliminary form on 11/16/89.

“2 19/89, 3/27/90, and 8/14/90. Formal FAA

comments were transmitted to RAA on 1/2/90.

22/90, 5/30/90, and 9/14/90, respectively

AA review was based on compliance with FAA

airport planning and design criteria standards

and the layout has been determined to be safe

and efficient utilization of airspace. The docu-

ment would be technically acceptable for FAA

approval upon an acceptable environmental find-

»)

Kunway centerline to centerline separation ex-

ceeds 4500 feet which is the minimum require-

ment for simultaneous approaches under instru-

ment flight rules. Parallel taxiways accompany

each new runway. Separation from runway cen-

terline to taxiway centerline is 450 feet and is

acceptable.

Separation standards in accordance with Advis-

ory Circular 150/5300-13 dated September 29,

19589, were applied to ensure the aircraft charac-

teristics relating to aircraft approach category D

ind Airplane Design Group V were accommo-

dated on the airfield’s geometric layout.

18a

Pavement strength will accommodate the follow-

ing landing gear configurations:

Single Wheel (lbs. ) 75,000

Dual Wheel (Ibs. ) 170,000

Dual Tandem (lbs. ) 360,000

The layout of the runway safety areas are of the

appropriate dimension to accommodate the design

group D-V aircraft.

Runway object free areas on the new runways

meet the standard length and width require-

ments for design group D-V aircraft with preci-

sion approaches.

All runway protection zones meet the appropriate

standard dimensional requirements for precision

instrument runways.

Runway lenghts identified provide the following

usable runway surface:

17L-35R 7,800’ x 150’

17R-35L 10,000’ x 150’

The runway lengths have been determined needed

for the proposed project.

Existing RWY 11-29 will remain in operation

throughout the construction phrase and continue

to operate thereafter. The safety and object free

areas on RWY 11-29 were revised to incorporate

the latest version of FAA design standards. The

declared distance concept, as addressed in FAA

Design Standards Advisory Circular AC 150

5300-13, was utilized. Runway 1-19 will be closed

after the two new parailel runways are con-

structed.

19a

The ALP was reviewed by the Memphis Airports

District Office (ADO) and coordinated with the

Air Traffie Division, Flight Standards Division.

Airway Facilities Division and the Civil Aviation

Security Division. The ALP documents are lo-

cated in the Memphis ADO and include a narra-

tive report and the following drawings:

Airport Layout Drawing (1990, 1993, 1995)

Airport Airspace Drawing (1995)

Runway Protection Zone Drawing (4 sheets)

Terminal Area Drawing (1995)

Land Use Drawing (1995)

Airport Property Map (1995)

Wind Rose and Data Table

The Airport Airspace drawing defines FAR

Part 77 surfaces. Existing obstructions pene-

trating Part 77 surfaces are identified with rec-

ommended actions to remove, relocate or light

the object.

The Land Use Drawing identifies the allocation

of land needed to complete the airport develop-

ment. Land uses compatible to the airport under

Part 150 criteria, are identified.

The Airport Property Map Drawing identifies

existing and proposed property lines.

The landfill issue (discussed in the FEIS) was

reviewed. First, the proximity of Standiford

Field to the landfill has not resulted in problems

in the past, and there is no expectation of prob-

lems in the future based on the RAA’s continu-

ing commitment to its strategic plan for wildlife

hazard management, discussed below. Second,

there must necessarily be the presumption that

20a

a potential hazard exists, merely by thes fact

that landfills do attract birds. This issue has

been given appropriate and extensive considera-

tion during development of the proposed expan-

sion of Standiford Field. Specifically, the RAA,

within the framework of the environmental as-

sessment process for the proposed project, spon-

sored a fourteen-month survey of bird activity

at the landfill and in the airport environs. The

survey was managed by the Animal Damage

Control (ADC) Branch of the U.S. Department

of Agriculture’s (USDA) Animal and Plant

Health Inspection Service (APHIS). The com-

pleted survey and the analysis of findings are

documented in the Environmental Impact State-

ment. The RAA, in cooperation with USDA

APHIS-ADC, was able to define a permanent,

long-term program to maximize air operations

safety relative to birds and other wildlife.

Formuiation and adoption of a Strategic Plan

for Wildlife Hazard management and an Annual

Work Plan, which are part of the results of the

USDA/APHIS-ADC study, are intended to pro-

vide the framework for implementing the wild-

life hazard management program to which the

RAA represents it is committed.

Originally, it was contemplated that formulation

of a wildlife hazard management function would

occur only with implementation of the LAIP.

However, the RAA has determined that such a

function would be useful and beneficial” within

the current context of airfield operation. The

control program already has been incorporated

in the Airport’s Certification Manual, upon re-

view by

L99Q.

inally,

cannot |

2la

the FAA; it became effective July ]

the FAA has concluded that the landfill

e closed and that airport expansion proj-

ects have placed an existing landfill that pre-

viously

ards int

FAA’s

hazard

mn ] hat «hake haan \tisgla

mined that wildlife hazard potentials ¢

iould n

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di partul

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not be «

ures when weather conditions are les: than

met FAA minimum separation stand-

0 a noncomplying position. Based on the

continuing commitment to its wildlife

management plan, the FAA has deter.

controlled. This decision in no way

s ' nets

Cnanve in agency policy that land fil

. i « y

bie (Poe

ot be established or expanded Within the

contained in FAA Order SZ200.5A.

scussions with the airport ov ner’s ren

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runways | LA Ord } 110.65 requ}

( (*{ j oa LO dive ror D\ at ire + ] ) 1

7 4 4.7

! U MOCTAaALICGNS WU} ‘. er

al ] »? | T vid

AVUIC USe O ISual Separatio iJlAL COUIC

> + ? 1 i ;

Stiblish fo SD] straight }"-

‘> 2 " nee —— ~ . {Pe - . <A 4 47

4,.UU-Toot Celliing ind visibility mM » ACO (

+ | ] ° — 4

Ime the 15 qdeoree course «sy PpaYatiIon VY ab-

he . . | 4

ply, thereby permitting full d arture can

The FAA was also concerned about the effects , f

“| Area R-8704 (associated with Ft.

171 NYT + . 4 ra | T 7

COUrFSe \ ( ALiONS Vy h U! { a Army

_ ] 4 ri se > ars t

( ulead In an agvreen Lt Q } LPue 1} *( bye (O04

22a

vertically. Although the level of activity will re-

main the same as-~-in the past, this restructure

will assist the Standiford tower in vectoring

traffic to/from the proposed runways. The lat-

eral boundaries of R-3704 will remain as they

are now but will limit the controller to vectoring

only one aircraft at a time from the west to the

final approach course of Runway 35L. This will

somewhat limit the runway’s achieving its full

potential capacity during periods of heavy ar-

rival traffic from the south; however, the pro-

posed runway configuration offers significantly

more capacity than that offered by the present

runway configuration.

The relocation and establishment of NAVAIDS

as discussed in the FAA involvement section are

preliminary. Actual requirements must be de-

termined during the detailed planning process.

Memorandums of Agreement for reimbursement

. from the RAA to the FAA for relocation of fa-

cilities occasioned by airport development will be

necessary.

The RAA must protect line-of-site (LOS) from

the existing ATCT to the airport operations

areas until it is relocated and then protect LOS

from the new tower. Additionally, the RAA must

submit all proposed construction designs for

FAA approval relative to LOS and electro-

magnetic interference (EMI) protection for

NAVAID and ATC facilities.

Safety and security aspects related to the closure

of Crittenden Drive and access to the airport by

the Louisville Fire Department’s Engine Com-

pany Number One have been addressed fully in

23a

the FEIS. This unit already has airport access

to respond to fires. The RAA will grant the

ire Department controlled access through the

airfield via the service security road system to

points south of the airport and Fern Valley Road.

The Fire Department will certify annually all

drivers who would potentially operate vehicles on

the airport. A description of the annual training

program and identification of all certified driv-

ers will be included in the airport certification

manual which must. be approved annually by

MAA. The RAA will also revise its security

plan, based on LAIP, and obtain FAA approval.

'AA’s preliminary reviews indicate that airport

security can be maintained with the planned Fire

Department access.

VI. MAJOR IMPACTS AND MITIGATION

MEASURES:

_ , : ee : ss .

The major impacts of the project and thi mitigation

. A

measures upon which federal approval is contingent

A. Novse and Social:

l. General:

As part of on-going dialogue between the FAA

and the U.S. Environmental] Protection Agency

(EPA), the agencies agreed to conduct certain

supplementary airport noise measurements for

aircraft on a single event basis, as weil as to

provide additional technica] discussion ‘analysis

reflecting the noise levels generated by aircraft.

While the EPA agreed the FAA has performed

24a

adequate and proper noise analysis in conducting

its environmental and airport noise studies, the

FAA agreed to include those measurements and

discussions in its environmental documentation

for certain proposed projects, including the pro-

posed Louisville Airport Improvement Project

(which was already being developed at that

time). The implementation of that agreement is

reflected in the noise analysis sections of the

FEIS (Section 5) and is fully supported by the

EPA as meeting the requirements of the Na-

tional Environmental Policy Act of 1969

(NEPA) and related implementing regulations

and directives.

2. Impacts:

Approximately 16,132 people will be within the

1995 65 Ldn noise contour. As a result of miti-

gation measures, this figure will be reduced to

1,650 by 2003, which is the mandatory compli-

ance deadline for conversion to Stage III air-

craft. Most aircraft are expected to be in com-

pliance by the initial 1999 compliance date.

In contrast, the “no action” alternative would

result in 42,00 people in the 65 Ldn in 1995 and

3,445 by 2003.

a. The ‘no action” alternative (including the

local land use program) involves:

* Relocation /demolition of approximately 1450

residences, affecting about 3500 persons; 15

churches and 60 businesses are also affected

under the loca! land use program.

‘)

25a

‘] ‘7 . 4 ] lic

Closing of two schools.

Loss of funds for two community ministries,

Potential revenus IMpact on Kdgewood rire

District.

| rm : ] ser 9 ; rai] m alyac { oe |

D. The proposed project will include the fo]-

‘oWlng additional impacts:

Purchase of 150 le idences In Kdgewood.

sidences in the Tuberose ce mmunity.

Speciiic noise abatement measures were jn.

“OFporated into the LAIP and these are already

an integral part of the Proposed project itself.

UPS operation of only Stage IIT aircraft in

camceeriin ikac 2 RK aapheaces at " b Sm Pealler x ;

MOUISVINe DY 1995 when the LAIP is fully com-

preted. (see attached t/PS commitment of Stage

i/t alrerait. )

Contra-flow viverra operating procedure

Ai 4 i | < I i | I cA sign | I LA

° 1: en 2 1, = Lh

(l.e., landings irom tne Soutn, take-offs to the

° . . . '

VYULIT) NeLPINNINeG no earl r than 10 ym. and

dine no ‘ QA} than i 2.7 weathe} and tram

sad T. _ : , 4 “a oe , 4]

NIcttiIne YiaXIM1Ze oper; lOns occurring SOUTH

] . ,

Of the airport ove 1e@SS congested areas

ee B ~ 47 A ] R — d . ] © temas

in addition, the RAA has - ereed to the fouOWwine

ee ‘= * x . ] ‘Yr 74 , t + ‘ ] ‘

Mitigation 4CUlIONS With oar witnout federal as-

oe ey Pe : ert —— - ~~ QIN

Fronibition of routine late nicht main-

veliice runups, unless acceptable attenua-

11S provided. Implementation : Upon

A preferential runway use program, sub-

ject to FAA approval, instituting maximum

26a

daytime utilization of Runways 17R and

17L for south departures.

Implementation: Upon completion of the

LAIP.

* Straight-out, extended flight track depar-

ture procedures from each new runway, ex-

cept in adverse weather conditions when a

15-degree turn from the west runway would

be in effect.

Implementation: Upon completion of the

LAIP.

* Soundproofing the Minor Lane Heights

Elementary School between the time the

project is approved and the opening of the

first (east) runway.

Implementation: Start 1992: Complete

1993.

* A program of soundproofing at the Uni-

versity of Louisville Belknap Campus will

be implemented as specified and agreed to

in a letter from the RAA to the President

of the University, dated August 17, 1989.

Implementation: As expeditiously as _ pos-

sible, but no later than 5 years of comple-

tion of the LAIP.

* Soundproofing of the residence at 2111

South Park Road. This site has been deter-

mined potentially eligible for the National

noise curve in 20038, when the fleet is all

Stage ITT.

Implementation: Upon completion of the

LAIP.

* Acquisition and relocation of businesses

and residences under the LAIP would be in

mia

conformance with the Uniform Relocation

Assistance and Real Property Policies Act

of 1970 as im plemented under 49 CFR Part

The property tax base for the Edgewood

Volunteer Fire District will be affected in

the short term. The RA, \, city of Louisville

and Jefferson County will cooperate in sus-

taining the Fire District until redevelop-

ment has occurred sufficiently to replace lost

revenues

praia wer development associated

with the airport expansion wil] result in in-

creased traffic on Fern Valley Road and

Grade Lane. The intersection wil] be rebuilt

to accommodate this increase and establish

access to the central] portion of the airfield.

The closing of Crittenden Drive will deny

the Louisville Fin Department’s Engine

Company No. One to respond to fires south

and east of the airport, primarily industria]

sites. Therefore, the RAA will grant con-

trolled ACCESS through the airfield via the

service ‘security road system to points south

> the airport and Fern Valley Road. The

ouisville Fire Department would be re-

movi to certify on an annual basis all driv-

ers who potentially would operate emergency

vehicles on airport property. A description

of the annual training program and the

identity of all certified drivers would be

made a part of the Airport Certification

Manual, which must be approved annually

by the FAA.

28a

Additionally, the RAA adopted a voluntary sales pro-

gram for the Edgewood Neighborhood, residential

property within the 75 Ldn in the 1995 contour map.

The adopted plan included 60 homes within the 75

Ldn and about 90 homes which ave outside the 75 Ldn

to avoid splitting blocks. This plan will be accom-

plished with federal assistance.

To complement the environmental processes for the

proposed project, the RAA also commits to compicting

a Part 150 Noise Compatibility Study as soon as prac-

tical following approval of the LAIP. An Airpor/

Environs Land Use Compatibility Plan has been pre-

pared in conjunction with the city of Louisville and

Jefferson County and incorporates many of the land

use measures which must be in the Part 150 study.

This study is being reveiwed locally. One strategy to

be included in the Part 150 Study would be relocation

of occupants of Holiday Mobile Home Park south of

the Outer Loop.

B. Air Quality:

(1) Impacts:

The total regional pollutant burden will be lower

because the pollutant burden associated with the

recional roadways is expected to decline significantly

due to improved antipollutant control devices and

laws. The only pollutant expected to be worse in

1995 and 2010 is sulfur dioxide, and this is almost

eniively identified with the regional roadway systems.

KPA has determined that the project is acceptable

from an air quality standpoint. The Governor of the

State of Kentucky has certified (FEIS, Appendix A-

105) that there is reasonable assurance that the LAIP

29a

will be located, cesigned, constructed and operated as

to comply with applicable air and water quality

standards.

(2) Mitigation:

The RAA has indicated that it wil] commit to reduce

on airport sources of air pollution to the maximum

extent practicable. During construction, omissions of

fugitive dust associated with the construction and

demolition activities will be minimized with proper

pollution control measures. All asbestos materials, as

well as other hazardous materials encountered (known

and unknown) will be handled in accordance with all

applicable regulations of the Jefferson County Air

Pollution Control District, the State of Kentucky, and

the I-ederal Government. :

C. Water Quality:

(1) Major impacts:

ielocation of population through the land acquisition

program will reduce the local flow of sanitary sewage,

improve flood control south of the airport and permit

greater contro] of deicing chemicals.

(2) Mitigation: ;

Hazardous substances or contaminated soils will be

removed or contained in accordance with applicable

laws. Abandoned underground storage tanks (UST)

will be removed and the area tested for spilled ma-

terials. Contaminated goil, if present, will be re-

moved, consistent with Federal, state and local laws.

All clean up costs willbe borne by the property own-

30a

ers or, if necessary, the RAA. Any new storage facili-

ties must meet EPA regulations for construction and

installation to minimize leakage potential.

Sewers of the Louisville and Jefferson County Metro-

politan Sewer District (MSD) will be extended to

serve all new buildings to avoid new discharges of

waste water to surface streams. Waste water gen-

erated by new facilities, which is not compatible for

discharge to the MSD sewers, will be contained and

properly disposed of at a certified facility.

Major drainage improvements will be designed for

the airfield complex to minimize downstream flood-

ing associated with existing and future levels of storm

water runoff. New drainage facilities serving areas

where aircraft are fueled or fuels are transferred will

be built with fuel separators to capture spilled fuels.

Wash water from aircraft washing facilities built

as part of the improvement program will be diverted

to the MSD sewers. Likewise, contaminated drain-

age from areas where deicing chemicals are used

(runways, taxiways, and aircraft aprons) will be

conveyed to detention basins for transport to the

MSD sanitary or combined sewer system or evapora-

tion in place. UPS has its own surface drainage sys-

tem to divert contaminated storm drainage to MSD

sanitary sewers.

Stringent measures will be taken to control soil ero-

sion during the demolition and construction phases.

Erosion control measures will include: diversion chan-

nels, vevetative buffers, channel protection, silt fences,

and silt basins.

The Governor of the State of Kentucky has certified

(FEIS, A-105) that there is reasonable assurance

3la

that the LAIP will be located, designed, constructed

and operated so as to comply with applicable air and

water quality standards. The State of Kentucky has

issued a Water Quality Certification (Section 401).

D. Section 4(f) Properties:

The construction of the LAIP will result in the taking

of Grove Park, the adjoining Highland Park Com-

munity Center, and Lowell School. The RAA has

agreed to replace “in kind” the facilities and services

of Grove Park in a formal Memorandum of Under-

Standing (FEIS, Appendix A-98). Mitigation for

Lowell School has been included in a Memorandum of

Agreement with FAA, RAA. Kentucky State Historie

Preservation Office, and the Advisory Council on His-

toric Preservation.

Beginning in 1995 with the proposed LAIP, the fol-

lowing Section 4(f) properties would be affected by

noise levels at or above 65Ldn:

A portion (20 buildings) of the University of

Louisville Belknap Campus

The Adath Israel Cemetery

“Eastern Parkway

“Kentucky Fair and Exposition Center

“Park Boulevard Mini-Park

“Robin Park

“Wren Park

Churchill Park

Minoma Park

Twin Park

Eleven potential National] Register sites in South

Jefferson County (Five of these eleven potential Na-

| cacti

tional Register sites are presently exposed to noise

greater than 65Ldn. )

(*Indicates facilities currently exposed to noise levels

at or above 65Ldn. )

There are eight fewer parks included in the 65 Ldn

with the LAIP than the No Action alternative. The

No Action alternative would also affect nineteen po-

tential National Register sites in south Jefferson

County, Lowell School, the potential National Reg-

ister Districts, two National Register Districts, and

two parkways.

At the times the noise analyses were conducted for

the EA and the EIS, there was no legislation to

require the airlines to convert from Stage 2 to the

quieter Stage 3 aircraft. For this reason, 2010 was

used as the time frame for the aircraft fleet operat-

ing at Louisville to be all Stage 3. This was based

on an expected rate of conversion by phasing out

older aircraft. Recent legislation was passed requir-

ing aircraft over 75,000 lbs. to comply with Stage 3

noise levels after December 31, 1999 (or under spe-

cific waiver conditions, not later that December 31,

2003) in order to operate in the United States. Based

on this requirement, as the percentage of Stage 3

aircraft increases, the 65Ldn contour will recede more

quickly, and several properties will drop out of the

65Ldn no later than 2903; however, the followine

properties will be within the 65Ldn contour after

the fleet is all Stage 3:

Adath Israel Cemetery

One potential National Register Site

on South Park Road

Kentucky Fair and Exposition Center

33a

Park Boulevard M ini-Park

Twin Park

The RAA-has committed to sound attenuate the site

on South Park Road as well as the buildings on the

University of Louisville campus. No mitigation jis

proposed for the cemetery, Eastern Parkway, or

the remaining parks. The Louisville Parks Board

passed a resolution that there was no “use” of these

parks by the effects of the proposed project (Appendix

A-22). Similarly, the State Fair Board passed a

resolution that the noise impacts did not constitute

a “use” of the Fairgrounds (Appendix A-24). The

FAA has determined under its Section 4(f) obliga-

tions, that there was no “use” or “taking” of the

six parks and the Kentucky Fair and Exposition Cen-

ter. The RAA has committed to do a Part 150 study

if the LAIP is approved. The potential historic sites

would be evaluated in conjunction with that study,

but no specific mitigation is proposed at this time.

The Falls of the Ohio National Wildlife Refuge, while

well beyond the 65Ldn contour, will be expected to

experience a slight increase in noise with the pro-

posed project. The FAA considers the level and the

amount of noise increase at that location (an increase

of approximately 5Ldn above the current 50Ldn)

to be insignificant.

The FAA concludes that, while there are parks and

historic sites affected by noise from the proposed proj-

ect, planning has been incorporated in the project to

minimize or mitigate the impacts, that the impacts

are less with the proposed project than without the

project (with the exception of the Falls of the Ohio

National Wildlife tefuge), and that there is no feasi-

ble and prudent alternative to the proposed LAIP

34a

that would provide greater relief (except closing

Standiford Field).

E. WETLANDS.

Approximately 19 acres of hardwood deciduous forest

would be taken to construct the new west runway

and taxiway. The FAA finds that there is no rea-

sonable and prudent alternative to this impact, it

having been minimized in the project design. How-

ever, under current policy for a two-for-one replace-

ment, the replactment would be in-kind, off-site. A

site of approximately 140 acres in Southwest Jeffer-

son County has been identified as the preferred site

by the Division of Water, Department of Fish and

Wildlife Resources, the U. S. Army Corps of Engi-

neers and the RAA. The mitigation plan includes

the planting of trees to reestablish a hardwood,

.palustrine deciduous forest wetland. The restoration

project will: (1) yield a wetland wildlife habitat

that will enhance the water quality of nearby urban

runoff and (2) provide unique recreational and edu-

cational opportunities for the population of the

Louisville Metropolitan Area.

F. SOLID WASTE.

(1) LANDFILL

As discussed previously, because of the proximity of

the landfill to Standiford Field, a special survey of

bird activity of the area was conducted by the Ani-

mal Damage Control section of the Animal and Plant

Health Inspection Service (APHIS-ADC) U. 8S. De-

partment of Agriculture (USDA). The conclusion

was that the airport landfill relationship can remain

compatible by continuing and enhancing proper

bird control techniques. A permanent Wildlife Haz-

35a

ard Management Task Force has been formed to

provide a formal, continuing framework for address-

ing and resolving potential hazards associated with

all bird and animal activities in and around the

airport.

(2) HAZARDOUS SUBSTANCES

The RAA will acquire those properties containing

hazardous waste sites either under threat of condem-

nation or through condemnation and, thus, would

qualify as an “innocent landowner” under the defini-

tion in the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA), 42

U.S.C. 9601 et seq. An “innocent landowner” js not

liable as owner of operator under Section 107(b) (3)

because of the exempted third party contractual rela-

tionships in Section 101( 35) (A) (11).

The RAA, as an “innocent landowner” will off-set or

recover the costs of cleanup from other potentially

responsible parties (PRPs). Most of the landowners

of properties identified in the EIS as having hazard-

ous waste sites are proceeding with remediation and

will have effected the cleanup before the property is

acquired by RAA. While it is estimated that the cost

of cleanup of the hazardous waste site is well within

the value of the properties, should cost exceed the

value of the property, by law it will be borne by the

property owner and/or the party or parties respon-

sible for creating the contamination.

A number of actions were taken during the refine-

ment of the LAIP which minimize the acquisition of

potentially contaminated /hazardous waste sites into

the pr lect. First, the west runway was shifted 800

feet to the east from its originally proposed alignment.

This action moved the construction and clear zones

36a

away from the area of highest contamination at the

Brown Wood Preserving site and adjoining properties.

Also, the reconstruction of Crittenden Drive, which

would require acquisition of a portion of the Brown

property with the heaviest contamination, has been

postponed until the property is cleaned up by the

owner. These actions keep the RAA off the chain of

title, limit RAA’s exposure to liability, and provide

the Brown Foundation time to take remedial action

in the area.

Additionally, the shift of the west runway also

avoided the displacement of the major industrial area

to the west of Crittenden Drive. Two sites in this

area were of particular concern. The first, United

Catalyst, is a manufacturer of chemical catalysts used

in steelmaking processes. The other, Reliance Univer-

sal, which was opened in the early 1940’s, is involved

in the manufacture of industrial coatings and resins.

In the manufacturing process, toluene, xylene, key-

tones, acetone, and naptha type solvents and titanium

oxide and chromium pigments are used. There are

25 to 30 solvent storage tanks on site. By shifting the

west runway, both of these sites were avoided by the

LAIP.

On the east side of the airfield, an access road, which

eventually became the mid-field access road, was added

to prevent the projected relocation of the DeVoe fac-

tory. This plant mixes raw materials to produce

various types of paint. Several storage tanks for

solvents and liquids used in the processes are located

on site.

ther sites identified as having potential contamina-

tion were studied. None of these could be avoided.

However, none of the identified sites is believed to

37a

have el] ‘anup costs greater than the resources avail-

able to the owner to remediate the property, as dis-

cussed in Section 5 of the EIS.

The detailed remediation plans for each site have vet

to be developed. As mentioned above, most owners

will have already accomplished the remediation when

the RAA acquires the property. The remediation plans

will comply with applicable Federal, state. and local

requirements. Even though the detailed remedia] ac-

tions have not been fully developed, sufficient investi-

gation has been accomplished to identify the type of

contaminants, a reasonable estimate of the extent of

contamination, alternatives for remedial actions, and

a reasonable estimate of the cost to remediate. It may

be concluded that the remediation will not prevent the

construction of the essential elements of the LAIP in

a timely manner, though the reconstruction of Crit-

tenden Drive will be delayed for at least 10 years.

No project actions or remediation will be taken that

would render less effective any appropriate alterna-

‘ive method of remediation unless and until the

method pursued is approved and determined to be

effective.

G. CONSTRUCTION—SHORT TERM EFFECTS

‘Maintenance of Traffic” plan will be developed prior

to construction to minimize inconvenience during con-

struction. Other construction impacts (air, noise, and

water pollutien) will be minimized throuch strict ad-

herence to pollution control provisions of FAA Ad-

visory Circular 150/5370-10 Standards for Specifying

Construction of Airports and the “Kentucky Depart-

ment of Transportation Standard Specifications for

Road and Bridge Construction.” Measures for polly-

tion control included in the construction plans and

38a

specifications will be subject to review under the 401

water quality certification process and the states air

quality permit process.

H. MITIGATION MEASURES NOT ADOPTED

Other mitigation measures that were considered but

not adopted are as follows:

‘An agreement to restrict air traffic to the east run-

way during performances of “Shakespeare in the

Park.” This is being rejected as tco restrictive on air-

port demands and capacity when it occurs during a

peak traffic period. While this might be possible at

times, FAA should not be locked into a unwise and

premature commitment that would only be a signifi-

eant problem later. Central Park is not within the

65 Ldn contour where cumulative noise is greatest.

The FAA will continue to work with RAA and the

community to provide additional relief whenever its

possible and prudent.

Mitigation in the 65 to 70 Ldn contour in 1995 is not

planned at the present time. Mitigation within the

70 to 75 Ldn contour was rejected because of the large

areas and cost involved and the time required to im-

plement it. FAA’s position is that the noise contours

will recede as more Stage III aircraft are put in use

and that mitigation to correct short-term impacts is

not considered prudent, cost efficient, or affordable.

This would be reevaluated in the Part 150 study.

VI. RELATED ISSUES

A. Kentucky Supreme Court Decision of October 18,

1990.

This Section addresses the Kentucky Supreme Court

ruling of October 18, 1990, in Prestonia Area Neigh-

39a

borhod Association v. Abramson, voiding the urban

renewal ordinances passed by the City of Louisville

for the areas known as Highland Park, Prestonia, and

Standiford.

The following documents related to this matter are

included in the FEIS: (1) Kentucky Supreme Court

Ruling of Octoher 18, 1990; (2) Legal Memorandum

from Wyatt, Tarrant & Combs dated October 23,

1990; (3) Ordinance No. 115, Series 1989. As

Amended; and (4) Interlocal] Cooperation Agreement

dated May 1, 1989.

It is stated a number of times in the FEIS (and the

KA before it) that the relocation of incompatible uses

(homes, churches. neighborhood businesses) is not

part of the LATP and is not dependent or contingent

upon the LAIP (eg., refer to Section 1.5 of the

EIS). Additionally, it is indicated that the relocation

of incompatible uses in the three urban renewal plan

areas is being accomplished separately and independ-

ently from the RAA (the LAIP project sponsor),

Likewise, the FEIS indicates that elimination of in-

compatible land uses within these three areas is con-

sistent with the authority ani objectives under Ken-

tucky statutes (see Section 5.3.1.1 ).

The FAA has been advised by counsel on behalf of the

airport sponsor that local governing bodies have the

statutory authority to acquire property for urban

renewal purposes (KRS Chapter 99), and the author-

ity to aequire property necessary for establishing,

operating, or expanding an airport including: airport

facilities (KRS Chapter 183). The city of Louisville,

Jefferson County, and the RAA determined that much

of the existing development surrounding the existing

airport, as well as the pronosed airport, was incom-

40a

patible with current and future uses of the airport.

They determined that it was to their mutual advan-

tage to establish a land use program within the resi-

dential neighborhoods known as Highland Park, Pres-

tonia, and Standiford. To accomplish this land use

program, the City of Louisville, County of Jefferson,

RAA, and the City of Louisville Public Properties

Corporation (a separate agency designated to admin-

istratively manage and control the Land Use Pro-

gram) entered into an Interlocal Cooperation Agree-

ment, was to subject the property to airport servitudes

in order to restrict the use and occupancy thereof to

uses compatible with airport operations and to provide

other airport improvements for airport use. -

The actions undertaken under the Land Use Program,

as defined in the Interlocal Cooperative Agreement,

are:

1. Any and all of the local properiy within the

project area having an incompatible use shall he

acquired and cleared of all improvements having an

incompatible use.

2. All of the acquired property shall be subjected

to the airport servitudes.

3. The acquired property shall be either dedicated

or conveyed to the authority for airport use or resold,

subject to the airport servitudes, and the proceeds of

such resale shall be applied to the additional costs

and expenses of the land use program and any other

airport improvements and the accomplishment thereby

of the public purposes of the parties to the agreement.

4. Airport servitudes shall be acquired with respect

to all other lots and lands in the project area by pur-

chase or condemnation.

4la

Che City ot Louisville and County of Jefferson sold

revenue bonds and _ initiated the land use program

independent of the LAIP being considered by RAA.

While the two programs are complimentary of each

other, neither js dependent upon the other.

-ased upon the October 23, 1990, legal memorandum

rom Wyatt, Tarrant & Combs (bond counsel for city

of Louisville), the FAA understands that the facts

and circumstances are as follows:

l. The Land Use Program that was established

pursuant to the Interloca] Cooperation Agreement and

financed by the Bonds does not require or contemplate

the use cf the urban renewal laws or the city’s urban

agency to acquire property by purchase or condemna-

tion. The Land Use Program was established based

on finding by the city and the County that did not

depend on the presence of blight. No action to acquire

any of the numerous homes. churches, and businesses

at a cost of approximately $50,000,000 has been taken

under the urban renewal] powers, authority, or law

under KPS Chapter 99, Al] funding and, therefore.

all actions to acquire property with such funding have

heen under KRS Chapter 183, “Aviation,” and the

$59,430,000 bond issue was also based on that statute.

2. The Interlocal Cooperation Agreement was

signed by all four governmental parties and was ap-

proved by the Board of Aldermen of the City, the

l“iseal Court of the County, the RAA Board, and the

Board of Directors of the Public Properties Corpora-

tion. The Interlocal] Cooperation Agreement was also

approved as to legality by the City Law Department.

the County Attorney, the RAA’s general counsel, and

ihe Public Properties Corporation's general counsel.

The Interlocal Cooperation Agreement was also ap-

42a

proved as to legality by the Attorney General of the

Commonwealth pursuant to KRS 765.260.

3. The Supreme Court of Kentucky decision issued

October 18, 1990, regarding the urban renewal plans

of the City of Louisville and Jefferson County did not

address the bond issue, the Interlocal Cooperation

Agreement, or the land use program. The final para-

graph on page 10 of the Kentucky Supreme Court

opinion states:

“The judgement of the trial court is reversed

and Ordinances Nos. 114, 115, and 116, Series

1989, of the City of Louisville are hereby declared

unconstitutional, invalid, and void. This matter

is remanded to the trial court for entry of a judg-

ment in accordance with the terms of this Opinion

and for the purpose of issuing a permanent in-

junction to prevent Appellees from demolishing

or destroying properties pursuant to the urban

renewal plan and project described in each Or-

dinance, or the otherwise act under the power of

the Ordinances hereby voided.”

The FAA understands that the Ordinances Nos. 114,

115, 116 relate to urban renewal but legal authority

for the bond issue, the Interlocal Cooperation Agree-

ment, and the land use program has not been chal-

lenged and was not affected by the court’s decision.

In light of the Kentucky Supreme Court decision, the

FAA has been assured by the airport sponsor that

the City of Louisville and Jefferson County, Kentucky,

have the statutory authority to acquire property in the

neighborhoods adjacent of Standiford Field under

KRS 83.420; KRS 82.082; KRS 67.083; KRS 65.210

to KRS 65.500; KRS Chapter 183; the Interlocal Co-

operation Agreement dated May 1, 1989 (between the

Ee a,

43a

ity of Louisville, Jefferson County, the KAA, and

the City of Louisville Public Properties Corporation) :

Or ae No. 3, Series 1989, of Jefferson County

al Court; and Ordinance No. 113, Series 1989, of

he City of Louisville. T herefore, it ap pears that there

is sufficient leca] authority to proceed. as described

ind analyzed in the FE IS, to eliminate incompatible

and uses in the three areas without the authority

voided by the Kentucky Supreme Court. The FAA has

also been informed that this authority is, in fact, the

uthority used to fund the acqu sition and relocation

of all properties in these three aleas to date. Through

this authority, the City and County have alreaay

acquired 69°, of all residential structures (tot: il of

388) and 100°, of al} churches (14), Closing on

contracts for the purchase of resident tial units have

continued since the Supre ‘me Court decision. Because

he FETS assumed such acquisitions w ould occur prior

to seradion | of the new parallel runw: AVS, Current cir-

cumstance substantially « correspond to ‘the forecasts

and assumptions made in the FEIS. The FAA has

the assumptions and forecasts will be

As noted by the Court. its decision does not affect the

proposed LATP. The Kentucky Supreme Court States,

on page two of its opinion, that “. . . the decision in

his case does not determine whether or not Standiford

‘iel] may be expanded.” The RAA’s LAIP and the

City County land use program for eliminating incom-

iinle land uses are Separate, but complementary,

The RAA was not a party to the law suit and is a

separate, autonomous, local governmental entitv. he

ML has been assured that RAA is empowered under

KP S Chapter 183. to acquire property by eontract.

lease, purchase, gift, condemnation, or otherwise. for

44a

public uses, including establishing, operating, or eX-

panding airports and air navigation facilities, as

needed for the proposed airport expansion project.

While the elimination of the incompatible land uses in

these three areas is not part of the LAIP and is not

dependent on it, nonetheless it is supported by the

m\.\, as a party to the Interlocal Cooperation Agree-

yeni. as a means of achieving compatible land uses

in the airport area. The FAA supports efforts to

achieve compatibility between the community land use

and the local airport. Federal Aviation Regulations

Part 150 provide the regulatory basis for this policy

as it relates to airport noise. Eventually, the LAIP

will require the RAA ‘to acquire some of the land in

each of the three areas, both for the runways and for

relocation of airport-related businesses such as air

earou services, rental car agencies, and other airport-

related uses (see Section 2.5 of the FEIS). Where the

nroperty in the three areas ‘s needed for actual air-

port expansion, the RAA will purchase the property

fom the then owner in accordance with 49 CFR, Part

294. US Department of Transportation. “Relocation

Assistance and Land Acquisition in Federally-Assisted

Proorams.” Such commitments are made in the FEIS

(ceo Section 1.5 of the FETS) and will be reflected in

any fucure grants for the project. These commitments

remain viable after the Supreme Court decision.

The lecal land use program allows the RAA to acquire

those areas needed for the airport uses described in

the FETS. It also provides for appropriate aviation

servitudes to be placed on the remaining property,

restricting that property and assuring its future uses

are compatible with the airport environs.

The conditions articulated in Section 5.3.1.1 of the

FEIS remain viable. The FEIS describes the impacts

45a

of the LAIP in each of the categories required to be

analyzed, and fully discloses and analyzes the impacts

of the land acquisition program even though they are

not part of the LAIP. The Kentucky Supreme Court’s

decision in the Prestonia case will not change any of

those impacts attributable to the proposed project.

Therefore, based upon its review of the facts and cir-

cumstances as described above, the FAA finds that the

RAA has provided its assurances that:

1. There is sufficient legal authority outside of the

Kentucky urban renewal statute (KRS Chapter 99)

ed with the relocation of incompatible land

uses in the three areas around Standiford Field, as

described in the FEIS.

29 The Louisville Airport Improvement Program

and the Local Land Use Program (heretofore desig-

nated Uryhan Renewal Progam) actions and results,

as described in the FETS, will each be achieved and

remain distinct but complementary programs.

9 Financial commitments of $50,000,000 each

have been made by the City of Louisville (together

with Jefferson County) and the State of Kentucky

toward the LAIP. With these major commitments of

financial resources along with the anticipated federal

financial assistance through the Airport Improvement

Program, provide reasonable assurance that RAA,

the City of Louisville, and Jefferson County have the

financial capability to complete the land use program

currently underway.

{. The decision of the Kentucky Supreme Court tn

the Prestonia ease does not cause any material change

im any facts or conclusions in the FETS, inciuding

those relating to (1) the number of properties \ hich

46a

will be acquired, (2) the timing of such acquisitions,

(3) the number of dwelling units or people within

any noise contour in any year, (4) the involvement

of the RAA in property acquisition, or (5) the en-

vironmental and other impacts of the LAIP or any

aspect of property acquisition.

Since the Kentucky Supreme Court decision did not

determine whether or not Standiford Field may be

expanded or affect the authority of RAA, and, in

light of: (1) the authority of RAA to acquire prop-

erty and develop, operate, and maintain an airport;

(2) RAA’s will and commitment to take actions and

achieve the results described and analyzed in the

EA EIS; and (3) the availability of adequate funds

to RAA to accomplish those actions, the FAA believes

that may rely on the assurances made by the RAA.

VIII. SPECIAL FINDINGS.

A. The project is reasonably consistent with existing

plans of public agencies for development of the area.

The proposal was cleared by the Kentucky State

Clearinghouse by letter of March 27, 1989 (see FEIS,

Appendix Page A-1) stating “review of this proposal

indicates there are no identifiable conflicts with any

state or local plan, goal or objective. Therefore, the

State Clearinghouse recommends this project be ap-

proved for assistance by the cognizant federal

agency.”

B. Fair consideration has been given to the interest

of communities in or near the project location.

All communities have had the following opportunities

to express their views:

47a

Public Workshops: 10/20/88, 1/26/89, 3/16/89

Pro scoping meeting: 10/20/88

Public Hearings (3): 8/31/89—Written comments were

received until 9/18/89.

Notice of Intent to Prepare DEIS: 1/26/90

DEIS Availability Notice: 5/25/90

Comments received during this process were available

for review or are contained with the DEIS FEIS

documents. Al] comments were cor sidered.

C. Appropriate action has been or will be taken to

restrict to the extent reasonable, the use of land in

the vicinity of the airport to purposes compatible with

airport operations,

The Airport Sponsor, Regional Airport Authority, is

required in every grant application to furnish a state-

ment on compatible land use, and each grant issued

to RAA contains an assurance on compatible land use.

RAA has agreed to an effective noise mitigation pro-

gram and will supplement its effort by undertaking

an FAR Part 150 noise compatibility planning study

Which will involve all jurisdictions and include addi-

tional land use controls by surrounding communities

‘o control future noncompatible development. RAA

does not have the authority to control land use and

must rely on surrounding communities to control non-

compatible development. Hence, their participation

and cooperation is essential to ensuring that future

airport noise compatibility programs are imple-

mented,

48a

D. Appropriate air and water quality certificates

will be obtained for the project in accordance with

established procedures.

The Governor of Kentucky has -certified by letter

dated September 12, 1990, that ‘‘there is reasonable

assurance that the expansion of Standiford Field in-

cluding the development of two new runways, as

proposed by the Regional Airport Authority of Louis-

ville and Jefferson County, will be located, designed,

constructed and operated so as to comply with appli-

cable air and water quality standards.” See page

A-105 of FEIS appendix.

BE. There is no feasible and prudent alternative to

the location of the airport and runways and all rea-

sonable steps have been taken to minimize adverse

effects.

Pursuant to Section 509(b) (5) of the Airport and

Airway Improvement Act of 1982, this Record of

Decision highlights the FAA’s consideration of alter-

natives and decision-making considerations as well as

mitigation measures related to the location of the

airport and runways.

F. There is no feasible and prudent alternative to

the use of lands subye ct to Section 4(f) and all pos-

sthle planning to minimize harm to such lands re sult-

ing from suel wSse has heen included.

“Use” of Section 4(f) land is limited to:

Grove Park and Highland Park Community Center;

Lowell School: and*the residence at 2111 South Park

Road. :

The FAA has effected a Memorandum of Agreement

(MOA) with the ACHP stipulating the details asso-

49a

clated with mitigation efforts identified for Lowel]

School and the residence at 2111 South Park Read

(see FEIS Appendix A-97). The FAA has deter-

mined the mitigation measures agreed to between the

RAA and local authorities for Grove Park and the

Highland Park Community Center (see Appendix

A-103), reduce adverse effects of the project on these

properties to the maximum extent reasonably pos-

sible to achieve.

K. Hazardous Waste

Since the project requires the acquisition or use of

land that includes eight major and several] minor haz-

ardous waste sites, the RAA will complete the on-

going remedial] investigations. develop a remedial]

plan, and clean up these sites pursuant to the Com-

prehensive Environmental Response, Compensation,

and Liability Act (CERCLA), 42 U.S.C. 9601 et seq.

The estimated costs of clean-up will be obtained by

the RAA from the current owners of the respective

sites either [1] through purchase under threat of

condemnation or through condemnation. Any addi-

tional costs of clean-up will be recovered from the

current [2] or former property owners or other par-

ties— potentially responsible under Section 107 of

CERCLA. Hazardous substances or contaminated

soils at those sites wil] be removed or contained in

accordance with applicable federal. State, and local

laws.

IX. DECISION:

Having carefully considered the air transportation

System and airport capacity and the aviation safety

and operation objectives of the proposed project in

the light of the various aeronautical] factors and

50a

judgments presented, us well as being properly ad-

vised as to the anticipated environmental impacts of

the proposal, under the authority of the Administra-

tor delegated to me, I find that the project is rea-

sonably supported and should be processed for FAA

approval for federal assistance and the subsequent

procedures involving grant application, grant cffer

and grant acceptance. , This decision, as well as sub-

sequent approval of the project for federal assist-

ance, constitutes an order of the Administrator re-

viewable in the Circuit Court of Appeals in accord-

ance with Section 1006 of the Federal Aviation Aci

of 1958, as amended.

APPROVED:

/s/ Garland P. Castleberry 1/7/91

GARLAND P. CASTLEBERRY Date

Regional Administrator

Ssuthern Region, Federal Aviation

Administration

U.S. Department of Transportation

Attachment

ATTACHMENT

LIST OF REPORTS FOR THE RECORD

KNvaluation of Airpr rie Facility Needs at Sj ‘ndiford

Field, June 1988

Environme ildl Assess) ent TOF" thre Louisvill Airport

rmprovement Program (EA/AIP), December 1989

Final Bnvire hmental [m) act State hee ut, November

L990

Final Report 0

for a New Airport. 1975, Lou'sville and Jefferson

rport Maste) Plan Site Ne lection

f ;1° PAS 1

l \ Al Board

ryy ‘ rY 4

Technica Penor lawiation Activity Forecasts for

f } 4 —

S Leh Tord [ c . | OUIS\ C Kentu \ LY ‘é Py LU

\ o. ’ 17 ‘

Var ick NM cneli and ( Ompan'

Tech rice! Lee [Ys vs Ane (ys Ke of A rfield Ca macity and

Delays on Standiford Field. Louisville, Kentucky,

1978, Peat Marwick Mitchel] and Company

i chnical Re port: Passe fe } i af rminal Platt, p*))?

Plenning Criteria for § ndiford Field. Louisville,

Kentucky, 1978. Peat Marwick Mitchell and ¢, m-

Nanny

T'¢ chin ical Re po) i % Alte Peat T's >) tnal Plat ti”) )) Siti

Analysis or Standiford Fie ld, Louisville, Kentucky

1978, Peat Marwick Micthel] and Company

> |

Summary Pe ) rz ° Ne i) Airside Building Pa}. Stand-

ford Field. Louisville, Kentucky, 1983, Peat Mar-

wick Mitchell and Company

Technical Re port: Airfield Capacity Study Stand i-

ford Field, 1985. Peat Marwick Mitchell and Com-

pany

52a

Final Letter Report: Preliminary Analysis of Po-

tential New Runway, Standiford Field, 1987, Peat

Marwick Company

Airline Traffic Analysis, 1987, Peat Marwick and

Main repared as part of 1987 Series A Bond Issue)

Technical Report No. 1—Forecast of Aviation

Activities

Technical Report No. 2

Alternatives

Evaluation of

Technical Report No. 3—Selection of Preferred

Alternative

Final Report—Evalaution of Airport Facility

Needs at Standiford Field

Working Paper No. 1—A/rport Improvement

Alternatives

Working Papers No. 2 and 3—E ffects and Costs

of Airport Improvement Alternatives

Ww U. S. GOVERNMENT PRINTING OFFICE; 1997

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.