# Opposition Brief — Communities, Inc. v. Busey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1094%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 953 ## Text ass OCTOBER TERM, 1992 , COMMUNITIES, INC., AND DULWORTH & RIVES, INC., PETITIONERS v. 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 © BEST AVAILABLE COPY ™ 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 Tee ets supsananieeushbaaunuansaeiuien 1 ed sesibuaiensnence 2 da eS RAEI PS 9 Ia re ad ssushaneooiaanieuaninlabaoia 17 (nS NR AR ek Ca ee la 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 U. 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) 2 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- 3 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, 4 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). ~ 0 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 6 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 7 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 8 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. 9 ’ 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 10 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 11 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 12 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 13 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. 14 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. 15 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- 16 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 be 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 AT STANDIFORD FIELD LOUISVILLE, KENTUCKY Date: January 7, 1991 SPARTMENT OF TRANSPORTATION KRAL AVIATION ADMINISTRATION SOUTHERN REGION ATLANTA, GEORGIA VI. VII. Vill. IX. 2a TABLE OF CONTENTS ge gt 6 | _ 5) ene FEDERAL ACTIONS REQUIRED TO IMPLE- MENT PROPOSED PROJECT .......................... Sy IEEE Lithaniesacdtehscitnbarcanipuicheuanadiianeclnnainiationnneensebsnaden RT II eecelaircdinacessieenssnicenninioebinmanbitnvnmnnent 5 SRR RE UIE, sien esctnncrenenescinerencemnnecesion FLIGHT STANDARDS DIVISION .................. PY) gt 5) TR 4) |.) GRE nen O AIR TRAFFIC DIVISION ...............00..-.......... - AIRWAY FACILITIES DIVISION ........ jeiidiaiicen MAJOR IMPACTS AND MITIGATION MEAS- NUNIT 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 } ~“ v) »7 ] 1m i Aitit { di partul rye ae 1c Act r)] 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 A contained in FAA Order SZ200.5A. scussions with the airport ov ner’s ren ’ + ? 1 i ; Stiblish fo SD] straight }"- ‘> 2 " nee —— ~ . {Pe - . 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. e 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 | 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 ee 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 2a 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. y -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: T I ce I 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- aa 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 A a l 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 a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1094%3A3. Public record. Not legal advice.