Amicus Curiae Brief — Burbank v. Lockheed Air Terminal, Inc.

Supreme Court brief1973

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OOOO MOO e eS OR Oe HET SES CEE E SEES SEES ESE ESEES

_The National Environmental Policy Act of 1969

i» Imposes Upon State and Local Governments

the Responsibility of Implementing the Nation-

»» al Policy Which Provides for Enhancement of

Environmental Quality

A. The National Policy

eats k- Statutory Law Requires That Federal

tional renee es

Siete Ses Not Precmapted: the Field of Als

StateProduced Noise Poltution

~ 30

“413

"The Burbank Ornanée Doed NOt Conict Wit

. _Any Federal Law or Regulation

AL The Court of Appeals’. Holding

A. - The Facts Do Not Support Appellees’ As-

sertion 26

‘B.° The Rights of Airport Proprietors pitgatt

' Appellees’ Straw: Man. ....:..:.... 28

C. Appellees Have Chosen the Wrong Reme-

Title: 4, Secs. 5000-5080, Public Utilities Code,

» Sec. 21669 et seq. Ye ADD. Pp.

Appendix :B Department of Aeronautics, Title 4,

Noise Regulations for California Airports : 6

Appendix C. ‘Opinion No. satteaite vaaecad 27,

1970 - 47

Tae OF AUTHORITIES CITED

be Ceie’?* P

Bs Gis & HER ak & Port Authority

El New York, 305 F. Supp. 93 (E.D.NY.

--1969) 26, 31

= Aleghey Airlines v. Cedarhurst, 238 F.2d 812

= 21,32

x ibatien Airlines, Inc. v:. City. of Audubon Park,

ts ang 407 F.2d 1306 (6th Cir. 1969)

a 21, 22, 32

f “American Airlines Inc. v. Hempstead, 398 F.2d

2369 (2d Cir. 1968), cert. den. 393 U.S. 1017

(1969) ee oi, ah 32

_California-Oregon Power Company v. pa

Court, 45.Cal. 2d 858 ..... 3

Calvert Cliffs v. gic gm 449 F. :

2d 1109 (D.C. Cir. 1971) .: 15

o Vee to’ Preserve Overton Park, Inc., et al. v,

* Volpe; Secretary of ‘Transportation, 401 US.

_ 402, 28 L.Ed. 2d 136, 91 S.Ct: 814 (1971)

~ Colorado Anti-Discrimination Commission v. weg

_ Gnental Air Lines, Inc., 372 U.S. 714, 83 S. Ct.

- 1022, 10 L.Ed. 2d 84 (1963) 2 ee 25

lis veticn Society v: — 446 F.2d 1013 eee

Ree 1971) .... 15

Griggs v. Allegheny County, 369 US. 84, 82 S. Ct.

he meet Aa. 24 S85 (1962). 28

~ Huron Portland Cement Co. v. Detroit, 362 USS.

~® 440, 80 S. Ct. 813, 4 L.Ed. 2d 851 (1960)

| segs 19, 21, 25, 26

is vy. Milwaukee, ........ Sib, ccna ee de

Paes & Cb Ts (1971) 7

Page

Lockheed Air Terni Tic.v. City of Burbank

* 437 F.2d. 667 (9th Cir. 1972). ian l8, 19

People'v. Truckée Lumber Company, 116 Cal. 397... 3

dep enhcdaee nee: niche = eeeiiaas

Hesdd:t: Spates Got;1. Cal. 24.758. cela, 3

Port’ of’ New’ York “Authority’ v. preg oma

Iné.;°259°F: Suipp. 745 (B.D. N.Y. 1966)

Stagg v. Municipal Court, 2 Cal. App. ea

Pert - w+ seneeen 21, 22, 25

Zabel v. Tabb, 430 F.2d 199 (th Ci 1970) .... 14

' EES? Ee :

SN ay, ee ON Toward a

- Quieter City, 14. (N.Y...1970) ............ 8

‘A Report to thé 1971 Legislature on the Subject of

Noige Porsuant,t0: Assembly: Concurrent Resolu-

tion 165; 1970, 4 (1971) ............, 7

‘Senate Report. No. 1353, July 1, 1968, US. Code

_ - Comg.cand Admin..News.(1968), pp. 2688, 2694

yee Rules and Regulations Ritles 32010-06;

Pott of New York Authority, Terms and: Condi-

_ Spe toe ie Operate tt Ser-Arcattt a | 30

‘California Administrative, Code, Title 4, Sec. 5000

4 riety

7 Seianin hdesiiatrative:\Godey Sihe- 4; Seen

¢*§000-5080.3

California Administrative Code, Title 4, sis 5006.

e(h) -.

: California Administrative Code, Title 4, ‘See: 5006-

~ i)

California Administrative Code, Title 4, Sec. 5012

California Administrative Code, Title 4, Sec. 5013

eee Administrative Code, Title 4, Sec. 5014

California ‘Administrative Code, ™ 4, Secs. 5030-

5032 ee . son

grain Administrative Code, Title 4, Sec. 5035

. California Administrative Code, Title 4, Sec. 5062

- California Administrative Code, Title 4, Sec. 5075

ibis Osaka ‘Aix. V ——

; Code of Federal Regulations, Title 14, Part 93 2°

_ Environmental Quality Improvement Act of 1970 ..

- Government Code, Sec. Saeko rad

nen Code, Séc. 16000(c)

Code, Sec. 16009(d) .

Page

vi.

National Eavironmental Policy: Act, Sec. 101 |

.-s--10, 11, 12, °32

Public Law 91-190 :

Public Law 91-224

Public Resources Code; Sec. 210018)

Public Utilities Code, Sec. 21663 -

Public Utilities Code, Sec. 21669 ...

United, Brats Code Annotated, Title 42, Sec.

4331

United States Code. Annotated, Title 42, Sec.

- 4332(1) =

United States. Code Annotated, Title 42, Sec.

4371(b)(1) 13, 32

United States Code Annotated, Title 42, Secs.

4331-4347 10

United States Code Annotated, Title 42, Sec.

4371(b)(2) | ...13, 32

United States Code Annotated, Title 42, Secs. 4371-

4374

United States Code, Title 42, Sec. 1857f-11

United States Code, Title 42, Sec. 1858

United States Code, Title 42, Sec. 4331 ....10, 12, 13

United States Code, Title 42, Secs. 4331-4347 .... 25

United States Code, Title 49, Sec.. 1506

Texts.

Branch and Beland, Los Angeles City Department _

_ Of Planning, Outdoor Noise and the Metropoli-

tan Environment—Case Study of Los Angeles

with Special Reference to Aircraft, at 8, 1970... 9

Page

alifornia Continuing Education of the Bar, En-

‘vironmental Law Handbook (1970), Sec. 4.27, p.

Le 123 10

"$4 Federal Register 18355, November 18, 1969 .: 30

_ $4 Federal Register (Jan. 11, 1969), p. 457 ........ 29

” Hildebrand, Noise Pollution: An Introduction to the

_ Problem and an Outline for Future Legal Re-

- search, 70 Colum. L. Rev. 652, 658 (1970) ..7, 8

Hoover and Cochran, FAA, Airport Design and

_ Operation for Minimum Noise Exposure (1969),

pp. 12-13 mt 31

NASA Langley Research Center and Old Dominion

University, Transportation Noise Pollution: Con-

trol and Abatement (NASA Contract NGT 47-

oe 31

53 Opinions of California Attorney General, pp.

_ 75, 80, 82 25, 28, 31

Opinion of the Justices, 271 N.E. 2d 354 (S.J.C.

Mass. 1971) TA SOREL es nS Pee NO ala a2

_ Sperry, Powers, and Oleson, FAA, The Federal Avi-

~ - ation Administration Aircraft Noise Abatement

Program (1968), pp. 21-23 .. 31

Wyle Laboratories Research Staff, Supporting Infor-

- mation for the Adopted Noise Regulations for

- California Airpports—Final Report to the De-

partment of Aeronautics (Report No. WCR 7-3

(R), 1971), p. 8 2

: Supreme Court of the United States

October Term, 1971

No. 71-1637

Tae City oF BURBANK, eto.,’ et al.,

Appellants,

vs.

LOCKHEED Air TERMINAL, INC., et al.,

Appellees.

On Appeal From the United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The State - of California respectfully asks leave of

the Court to. file Amicus Curiae in this cause on be-

half of appellants, City of Burbank, et al.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney Generai,

Jay L. SHAVELSON,

Ae Assistant Attorney General,

: Suyrene Court of the United States

October Term, 1971

No. 71-1637

Tue City OF BuRBANK, etc., et al.,

eri 3 Appellants,

LOCKHEED AIR TERMINAL, INC., ef al.,

Ou Appeal From the United States Court of Appeals

for the Ninth Circuit

law, and absent any legislative restriction, has the pow-

sto file any civil action which he deems necessary

for the protection of public rights and interests. Pierce

- y, Superior Court, 1 Cal. 2d 759, 761-62; see Califor-

‘tia Constitution, Art. V, § 13; Govt. Code §§ 12511,

| et seq. He may file environmental actions on

~ Dehalf of the state and the people. People ex rel. Young-

“ v. El Dorado, 5 Cal. 3d 480; California-Oregon

7.Company v. Superior Court, 45 Cal. 2d 858,

People v. Truckee Lumber Company, 116 Cal.

California’s interest in this case is of two kinds: (1)

First, there is a state policy against noise. pollution,’

which policy is furthered by ordinancés such as that

adopted by Burbank to combat such pollution; (2)

Second, California has the nation’s most comprehen-

sive regulatory plan for combating airport and aircraft

noise pollution’ which we would not like to see upset

1Govt. Code § 16000 (b), (c), (d); also see Govt. Code

§§ 12600, 12605, Public Resources Code § 21001 (b).

;

{

Tie

a valid permit issued by the Sec. 21669; see § 21663,

Title 4, Calif. Admin. § 5000. Elsewhere the purpose of the

regulations is stated:

~ “$010. Purpose. The purpose of these regulations is to

‘provide a basis to accomplish resolution of exi

noise pr PM tam argae oe rounding airports and to

"by a@edecision which on its face is directed at one

<<. gvunicipal ordinance. |

Noise pollution, particularly that from aircraft

_ noise, is one of the most pervasive environmental

threats. A National Environmental Policy is established

- by recent legislation. Such legislation imposes upon

pact boundary less that area deemed to have land

on Seating catia hag gro foe ga

prietor not is airport with a noise im area

inc Ga sine uals be tec some (Title 4, . Admin.

Code § 5062; see § 5075.)

The various interested parties are given a wide variety of

of implementing the national environmental policy

which provides for enhancement of environmental qual:

ity. ‘The City of Burbank implemented the national

policy by adoption of an ordinance directed at aircraft

produced noise pollution. Since the local ordinance im-

plements the legislatively mandated national policy

rather than conflicts with it, the ordinance should be

upheld. ~

a "aNoise is ubiquitous “in the environment and

>». has many adverse effects on man. It causes hear-

..- ing loss, interrupts sleep, interferes with

and generally degrades the quality of life.” Cali-

fornia Department of Public Health, A Report

to the 1971 Legislature on the Subject of Noise

Pursuant to Assembly Concurrent Resolution 165,

» 1970, 4 (1971).

- The threats to health and welfare occasioned by

noise are well established: .

“Physicians have reported a causal relationship

’ between exposure to excessive noise over a period

of time and the incidence of heart disease and

cardiovascular disfunction, migrain headaches,

gastrointestinal disorders, and allergies, as well as

endocrine and metabolic effects.” Hildebrand,

~. Noise Pollution: An Introduction to the Problem

°° and an Outline for Future Legal Research, 70

_ ~ Colum. L. Rev. 652, 658 (1970).

‘ Matious forms of psychological distress, including irri-

= tation and tension-associated ailments, have also been

gp to noise, and particularly to noise which in-

Tis cists tint thin const: tens cigeaiiy hal ocontion. to render

ae ee

‘ a eae

terrupts or disturbs. sleep: See. the. Mayor’s Task Force

on Noise: Control, Toward-a. Quieter City, 14 (N.Y.

1970). These undesirable. consequences of excessive

noise may then lead to others, such as economic loss:

' “The World Health Organization estimates that

_ lowered efficiency ‘and increased ‘errors caused by

“noisy working ‘environments’ result in a loss of

$4 billion per year to American industry. In 1961

a Time estimate placed the cost of noise to Ameri-

‘can industry-for compensation, lost hours, and

. decreased» efficiency—-at .$2. million a day.”

Hildebrand, supra, at 653-654. :

The. worst cause of growing noise. pollution is and

will be. the aircraft. .

“[T]he greatest increase in the urban noise level

has been brought about by the introduction of the

turbojet entine into commercial airline operation.”

Hildebrand, supra, at 652.

To people who reside near airports, aircraft noise

“constitutes the principal noise offense. . . .” Depart-

of Public Health, supra, at 26. A typical long range,

four-engine jet transport on takeoff spreads an

unacceptable noise level countour 34,000 feet long and

6,000 feet wide. On landing the same aircraft causes

unacceptable noise in a countour 11,000 feet by 1,500

feet. This is a total of approximately eight square miles

of land outside the airport being exposed to unaccept-

able noise levels. Id., at 26-27.

\ A tecent study conducted under the auspices of the

City of Los Angeles Department of Planning reinforces _

this conclusion with special reference to the Los Ange-

les area: -

“TA Jinerate noise .. . will probably become the

most pervasive and. disturbing source {of urban

il.

» moise in the future. {Footnote omitted.] In areas

_~immediately surrounding airports, low-flying air-

,- raft, and those taking off, taxiing, and testing

_..,,@mgines.on the ground generate the most intense

and /frequent noise in the city, [Footnote omit-

ee ni ” Branch and Beland, Los Angeles City De-

©" partment of Planning, Outdoor Noise and the Met-

'.- ropolitan Environment—Case Study of Los An-

_ geles with Special Reference to Aircraft, at 8,

en 1970.8 a

_ ©The degree of annoyance experienced from recur-

fing noise varies according to the time of day. Spe-

’ cifically, such noise at night, when most people want

to, sleep, is worst. Wyle Laboratories Research Staff,

Supporting Information for the Adopted Noise Regula-

' tions for California Airports—Final Report to the De-

“partment of Aeronautics (Report No. WCR 7-3(R),

- 1971), p. 8.

| “Sleep disturbance caused by noise often occurs

without the sleeping person’s knowledge. Noise

4. *The California Legislature has also found the problem of noise

_ Ao be acute. Government Code section 16000 is quoted in part:

re “16000. The Legislature finds that:

._.. “(d) There is a large discrepancy between the

“available for control of urban noise and the degree to

scape

vie candieetcaetinieveey by ‘shifting him from a

“deeper sttige ‘of sleep toa’ shallower ‘stage, or by

“depriving him of a' #0 t‘amountt of the portion

oy of the sleep period which is connected with dream-

AE We Pane 1 Rees fee eens negra fr

# sical allan Yh @ elie, ‘haw ight ts

great. problem. The question then arises whether this

Nation has acted to cope with such threats to its en-

wixoamqenst. "it has;

THE NATRONAL ENVIRONMENTAL POLICY ACT OF

6g 1969 IMPOSES UPON STATE AND‘LOCAL GOVERN-

MENTS THE RESPONSIBILITY OF IMPLEMENTING

THE NATIONAL POLICY WHICH PROVIDES FOR

ENHANCEMENT OF ENVIRONMENTAL QUALITY

A. The National Policy —

et: 1970 the President signed the National Environ-

mental” Policy Act ‘(N.E.P.A.) which has aptly been

termed “the most important piece of environmental

legislation ever written.” California Continuing Educe-

‘tion ‘of the Bar, Environmental Law Handbook, §4.27,

at 123 (1970). (The act appears at 42 US.CA.

$§ 4331-4347, Pub. L. 91-190.) N.EP.A. establishes

a ‘national environmental policy. Section 101; 42

USC. $4331. ‘The policy section is quoted:

“Sec, 102. (a) ‘The Congress, recognizing the

oR profound impact of man’s activity on the interre-

. lations of all-components of the natural enviror-

xc ie Ree ae, Oak bremecin tatiusacse of POP

fa) ‘expenaioae resource exploitation, and new

git: overall welfare of the Federal Government, in co-

+», operation with State and local governments, and

» Matural aspects of our national heritage, and

_ other concerned public and private organizations,

to use all practical means and measures, includ-

_ing financial and technical assistance, in a manner

_ calculated to foster and promote the general wel-

fare, to create and maintain conditions under

which man and nature can exist in productive

* harmony, and fulfill the social, economic, and

“other requirements of present and future genera-

~ “tions of Americans.

“(b) In order to carry out the policy set forth

in this Act, it is the continuing responsibility of

the Federal Government to use all practicable

means, consistent with other essential consider-

‘ations of national policy, to improve and coordi-

mate Federal plans, functions, programs, and re-

~~ sources to the end that the Nation may—

“(1) fulfill the responsibilities of each genera-

* tion as trustee of the environment for succeeding

_ 2) generations;

“(2) assure for all Americans, safe, healthful,

- productive, and esthetically and culturally pleasing

“(3) attain the widest range of beneficial uses

* of the environment without degradation, risk to

_ health or safety, or other undesirable and unin-

“(4) preserve important historic, cultural, and

maintain, wherever possible, an environment

which supports diversity, and variety of individual

“(5) achieve a balance between propulation

ards of living and a wide sharing of life’s ameni-

ties; and

“(6) enhance the quality of renewable resources

and approach the maximum attainable recycling

of depletable resources.

“(c) The Congress recognizes that each per-

son. should enjoy a. healthful environment and

that each person has a responsibility to. contrib-

ute to the preservation and enhancement of the

environment.” N.EP.A. § 101, 42 USC.

§ 4331.

Three months after enactment of N.E.P.A. Con-

gress passed the Environmental Quality Improvement

Act of 1970 to aid its implementation. (The act ap

pears-at 42 U.S.C.A. §§ 4371-4374, Pub. L. 91-224.)

Here the Congress elaborated upon the national policy:

“Sec. 202. (a) The Congress finds—

“(1) that man has caused changes in the en-

vironment;

“(2) that many of these changes may affect

the relationship between man and his environ-

ment; and

“(3) that population increases and urban con-

centration contribute. directly to pollution and

the degradation of our environment.

“(b)(1) The Congress declares that there is

a national policy for the environment which pro-

i: vides for the enhancement of environmental qual-

>. ity. This policy is evidenced by statutes heretofore

: enacted relating to the prevention, abatement, and

_ control of environmental pollution, water and land

resources, transportation, and economic and re-

“gional development.

~~ -“(2) The primary responsibility for imple-

bs menting this. policy rests with State and local gov-

3 ernments . . .” (Emphasis added. )

« Statutory Law Requires That Federal Laws Be Interpreted in

‘ Light of the National Environmental Policy

‘Sfablishes a natutal environmental policy. 42

WS.C.A. § 4331; see 42 US.C.A. § 4371(b)(1). The

“policies regulations and public laws” of the nation

“shall” be interpreted in accordance with the policies

of that Act. 42 U.S.C.A. § 4332(1). The Court’s re-

- gponsibility is clear.

* So is Burbank’s responsibility. With regard to

- WNEPA’s policy, the statutes say: “The primary respon-

‘Mbility for implementing this policy rests with State

id local governments.” 42 U.S.C.A. § 4371(b) (2).

“| Hence, the Federal Aviation Act must now be in-

‘Bepreted in light of the policy established by the Na-

tonal Environmental Policy Act.

> _ A. The United States Supreme Court

-In remanding another matter involving a transporta-

fon element, highways, this Court opened its opin-

“a with the reference designed to put the issue in its

soper perspective:

“RAZ

eat ik

01 @f-our: natural environment has.prompted Con:

0 gress. din recent: years:.to .enact: legislation’ de.

>») Signed: to: curb the: accelerating destruction of our

\ i:eounmtry’s: natutal: beauty.” Citizens to Preserve

Overton Park, Inc., et.al. -v..Volpe, Secretary of

Transportation, 401. U.S. 402, 404, 28 L.Ed. 2d

136, 91 S.Ct. 814.(1971).. .

B. The'Courts of Appeal

" The: Courts of Appeal havé been no less reticent in

applying the national environmental policy. The Fifth

Circuit;in Zabel..v.. Tabb,..430 F.2d 199 (Sth Cir.

_ 1970),:applied. NEPA and the national environmental

policy generally to.a pre-existing statutory scheme rela-

tive to regulation of dredge and fill operations.

Thé court stressed that the policy was for all three

“The parallel of momentum as the three

branches shape a national policy gets added im-

’ -:petus from, the National Environmental Policy

Act of 1969, Public Law 91-190, 42 U\S.C.A.

§§ 4331-4347. This Act essentially states that ev-

ery. federal agency shall consider ecological factors

when dealing with activities which may have an

impact on man’s environment. [Footnote omit-

ted.]” (Id., at 211; also see Id. at 200-201, 209,

°° 212-213.) i

“ASee, e.g., ‘The National Baviegneneatal Policy Act of 196%,

a3 Stat. 652, 42 USC. § 4321 ot seq “(1964 ed., Supp.

Vaca S ist 1531 et Kir Chuatity Act of 1967, 81 Stat

Sees gees oe ie

114, 42 U 1-4374.” [Footnote the Court’s.]

“first circuit to have been confronted. with a

involving the National Environmental Policy Act

athe ‘central issue was that for the District of Colum-

~ $ia: In Calvert Cliffs v. Atomic Energy Commission,

| F.2d 1109 (D.C. Cir. 1971), that court re-

~ yiewed and remanded certain procedures of the A.E.C.

“jn light of NEPA. (Also see Conservation Society v.

‘Texas, 446 F.2d 1013 (Sth Cir. 1971).) —

_ Said the court in Calvert Cliffs:

2 “,.... The sweep of NEPA is extraordinarily

broad, compelng consideration of any and all

»/types of environmental impact. of federal action.”

Id. at’ 1122.

on “What the court had to say about the role of the

" jadiciary is not out of place in this case where the Fed-

‘etal Aviation Administration, in suing to invalidate ‘a

< tity’s implementation of the Congressionally-declared

National Environmental Policy, blythely ignores that

ae “These cases are only the beginning of what

~~ promises to become a flood of new litigation—

on litigation seeking judicial assistance in protecting

our natural environment. Several recently enacted

~~" statutes attest to the commitment of the Govern-

a ‘ment to control, at long last, the destructive en-

"gine of material ‘progress.’ [Footaote omitted. ]

-_But it remains to be seen whether the promise of

ewisthia legislation will become a reality. Therein

Ties the judicial role. In these cases, we must for

_, ), the first. time interpret the broadest and perhaps

_ Most important of the recent statutes: the National

- Environmental Policy Act of 1969 (NEPA).

[Footnote omitted.] We must assess claims that

. the grand’. congressional: purposes underlying

NEPA are to become a reality.” /d.'at 1129.

In. brief, there is..now a, National. Environmental

Policy. By. the. command. of, both statute and case law,

ordinances were held to conflict with Federal law. The

Burbank noise pollution ordinance implements Feder

law. ...,

B. ‘Parbenk ‘Has Acted’ to, Implement the Nation

Policy

On March 31, 1970, the City of Burbank passed 4

noise ordinance imposing a jet curfew.

So what do we have? . :

3 Noise pollution is a problem.

_ 2. Aircraft noise pollution is a problem.

3, Nighttime’ noise ‘pollution is a greater problem.

Som» Congress has declared a national policy against

environmental pollutants.

_ §, Congress has declared that State and local gov-

ernments bear the primary responsibility for imple-

menting that national policy.

6.. The City of Burbank implemented that. policy

by barring aircraft-produced m noise pollution at night.

geome BH OL aREMeaD Tet FELD or

AIRCRAFT-PRODUCED NOISE POLLUTION

When the Federal government wants to preempt

Sctething, it. says. 90. The very subject now before this

court, aircraft-caused pollution, illustrates the point

dramatically, In the field of aircraft-produced air pol-

lution there is a clear Congressional directive to pre-

empt. By way of contrast, in the field of aircraft-

produced noise pollution there is a clear Congressional

ERP: Oot #0 preempt.

» Regarding aircraft-produced air pollution, Denenes

bs si: |

*. “No State or political subdivision thereof may

ey -adopt or attempt to enforce. any standard respect-

-.. ing emissions of any air pollutant from any air-

... .eraft or engine thereof unless such standard is

identical to a standard applicable to such aircraft

~.. under this part.”.42 U.S.C, §1857£-11.

Byway of contrest,. in, ths’ Federal Aviation Act

_ (which includes the regulation of epee TKR

‘fidise pollution) Congress has said:

_-* © “Nothing contained in this chapter shall in any

’ way abridge or alter the remedies now existing at

common. law or by. statute, but the provisions of

this chapter are in addition to. such remedies.” 49

USC. § 1506.

This Wildincs” Ek Virus‘ wakits ‘dunked the

ference in Congressional intent.

; nt Be

THE BURBANK ORDINANCE DOES NOT CONFLICT

_ WITH ANY FEDERAL LAW OR REGULATION

A. The Court of Appeals’ Holding .

Perhaps the most appalling aspect of the Court of

Appeals’ holding is the suggestion that one rather minor

- federal bureaucraft can invalidate the duly adopted

legislation of a‘state or the ordinances of a local gov-

ernment. One of the court's two apparent holdings

(“The Conflict Issue”) is that the City’s ordinance is

invalid because the tower chief says so. Lockheed Air

Terminal, Inc. v. City of Burbank, 457 F.2d 667, 675-

676 (9th Cir. 1972).

The F.A.A. Chief of the Airport Traffic Control

Tower issued a series of runway preference orders.

Id.,.at 669. One of these provided that a particular

runway be used as much as possible for turbine take-

offs at night. Jbid. The tower chief said in his order

that this procedure will lower noise “to the lowest

practicable minimum. . . .” Jd., at 676. [As accurately

found by the District Court, this procedure does not

end noise but “merely diverts the noise to other popu-

lated areas.” Finding 56.] The Ninth Circuit then went

on to elevate this functionary’s noise diversion to such

‘constitutional significance as to invalidate the City’s

ordinance.

“This assertion represents a considered determina-

tion by an authorized representative of the FAA

oii

‘o> that measures of the magnitude of that taken by

the City of Burbank are beneath the ‘lowest

practicable minimum.’ The municipal curfew ordi-

nance, therefore, interferes with the balance set by

the FAA among the interests with which it is

empowered to deal and frustrates the full accom-

plishment ‘of the goals of Congress. [Footnote

omitted.] Because of this. conflict . . . the Burbank

ordinance is unconstitutional, illegal and void.”

_ Lockheed v. Burbank, supra, at 676.

Rarely in the course of legal endeavor has so little

been magnified’ into so much. The local order of a

tower chief is ballooned into a “considered determina-

tion” of a federal agency of such Constitutional signif-

icance as to render a City ordinance “unconstitutional,

illegal and void.”

_ Surely this Court had something more substantial in

mind when it said that intent to supersede state regula-

fion “‘is not to be implied unless the act of Congress

fairly interpreted is in actual conflict with the law of

the State?” Huron Cement Co. v. Detroit, supra, 362

US. 440, 443, 80 S. Ct. 813, 4 L.Ed. 852 (1960).

Here we are not talking about an act of Congress. We

are not talking about a regulation adopted at a national

seaedagioaad We are not even talking about a- regula-

4 Traffic Rules and Traffic Pat.

ine

Fel

eft;

‘ oe. Mass. (Logan Airport); Buffalo,

3 ites Baltes lakeattnnal Akpats Chica tl (Ota

i (This footnote is continued on next page)

—

tion of regional: applicability. We are talking about one

tower chief's noise shift rule for two runways.

“Besides, the order and the ordinance are not in

conflict: "Having a preferential runway is in no way in

conflict with barring, with exceptions, jet takeoffs. The

two rulings (order and ordinance) may be quite com-

patibly applied so that night jet takeoffs are not per-

mitted except for the exceptions. The exceptions shall

take off on the preferential runways.

Surely that is a construction both more harmonious

and more in tune with this court’s rulings than the

elevation of a minor functionary’s local order to con-

stitutional ordinance-invalidating, significance.

B. Pre-NEPA Case Law

The issue presented by this appeal is whether a city

may enact.a noise pollution ordinance (barring night

takeoffs of jets) which does not conflict with any

_ federal-law or regulation. We would agree that under

" @xisting (pre-N.E.P.A.) case law where there is in fact

- guch-a direct conflict, the local enactment is

' Allegheny Airlines v. Cedarhurst, 238 F.2d 812, 814-15

- (2d Cir, 1956); American Airlines Inc. v. Hempstead,

398 F.2d 369, 372-375 (2d Cir. 1968), cert. den. 393

US. 1017 (1969); American Airlines, Inc. v. City of

Audubon Park, Kentucky, 407 F.2d 1306, 1307 (6th

_ Cir. 1969).° But where as in this case there is no such

conflict, the local enactment is valid. Stagg v. Munic-

ipal Court, 2 Cal. App. 3d 318 (1969).”

- These are the four cases involving municipal limi-

tation of aircraft-produced noise pollution. Let us ex-

amine the facts of each of them.

In the Cedarhurst case, the village enacted an ordi-

mance probhibiting air flights above the city at less

than 1,000 feet above the ground. Allegheny Airlines v.

Cedarhurst, supra, at 814. Fedetal regulations re-

quired planes to pass over Cedarhurst at an elevation

~ as low as 450 feet. Id. at 814-15. Hence, there was a

- fiatte. Opinion of the Justices, 271 NE. 2d

over-broad state

354 (S.J.C. Mass.

—22-—

-In Hempstead the town adopted maximum noise

levels for overflights termed “limiting noise spectra.”

American Airlines, Inc.:v.: Hempstead, supra, at 370,

by federal regulation. Id., at'375. The ordinance was

therefore in direct conflict with valid applicable federal

regulation. Id., at 372; see Id., at 370-375.

“The Audubon Park ordinance barred operation of

- an aircraft over the municipality of less than 750 feet.

American Airlines, Inc. v. City of Audubon Park,

Kentucky, supra, at 1307. This was in direct conflict

with federal regulations which would put an aircraft

below 750 feet. Ibid.

In the above three cases ordinances which in fact

conflicted with federal regulations were invalidated.

We have been able to find only one case where there

was no conflict. In that case a municipality adopted

a noise pollution ordinance substantially identical to

the one enacted by Burbank. Stagg v. Municipal Court,

supra, 2 Cal. App. 3d 318. The City of Santa Monica

barred jet takeoffs between 11:00 p.m. and 7:00 a.m.

of the following day. Jd., at 319. The California Court

of Appeal found no conflict with any federal enact-

ment. Id. at 321. The validity of the ordinance was up-

held. .

Until the district court’s decision in this case, every

court which considered the validity of a municipal

ordinance directed at aircraft-produced noise pollution

(whether by height limitation, noise limitation, or. time

limitation) had held those which in fact were in direct

conflict with federal enactments invalid, and that which

was not in direct conflict valid.

a a

+. These. cases have shown sensitivity to the competing

_ demands ‘inherent in a federal system. Not only judicial

_ festraint but .an appreciation of the roles of the various

bodies of . t existing within the one nation

would dictate an ledgment of local needs in

responding to complaints about aircraft noise

absent a direct with federal regulation.

_ “‘In this case there is no conflict between any Federal

law or regulation and the Burbank ordinance. This is

evident even from the findings of the District Court.

The District Court found that the airlines are “author-

ized” by the appropriate Federal agency to use Holly-

-wood-Burbank Airport. [Finding 27.] are

- they “directed” to use that airport, at night \pr in gen-

eral.

~ The court. below found that the aircraft and pilots

are properly certified and that the airport is going to

apply for certification. [Findings 29-33.] Nowhere are

nee eager te Wa Olt ots at

Sonam

. CoRccratt in the vicinity of Hollywood-Burbank are

‘subject to various Federal regulations pertaining prima-

Tily to safety. [Findings 34-53.] Nowhere are jet air-

_ Gtaft required to take off from Burbank at night.

Phere are Federal flow control regulations at various

ier airports. [Findings 53-54.] These do not exist

: at Hollywood-Burbank. Indeed, they do not exist at

any airport which is served by flights to or from Holly-

" wood-Burbank. [See Exs. 42-46; Rep. Tr. pp. 95-96.]

Federal. regulations provide for flying at minimum

itudes, under stated circumstances. [Finding 55.]

y do not require taking off from Burbank at night.

——

The FAA ‘chief at the Airport Traffic Control Tower

take off from Burbank at night they shall use a pref

erential runway. [Finding:56.] (This procedure does

not. end: noise but “merely: diverts the noise to other

populated areas.” [Finding 56.]) Nowhere does this or.

der require that any jet take off from Burbank at night.

»The: FAA ‘has: developed ‘standard instrument de.

partures for use at some ‘airports (apparently not in-

cluding’ Burbank): [Finding 57.] These do not re

quire an airplane to take off at night.

‘Some of the conchisions of law strain for conflicts

which. are. not apparent from the findings. For instance,

the District Court concluded that the ordinance was in

conflict with federal law in that the former’s enforce.

ment would preclude air carriers’ conpliance with

the latter’s requirement of providing adequate service.

[Conclusion 17.] This is specious:

(1) An examination of the certificates of pub-

lic convenience and necessity makes clear that the

C.A.B,. in no way required flight at night from

Burbank. [Exs. 8-11; Rep. Tr. p. 68; see Ex.

35.] They are phrased in terms-of-vsthorization,

not of direction.

(2) Finally as the findings state, the Burbank

ordinance invalidated no flight in interstate com-

Merce under C.A.B, jurisdiction. The only flight

affected was’a PSA intrastate one under P.UC.

. Jurisdiction. [Finding 61; see Finding 65.]

(Should sufficient demand develop, one airline

“may add one flight in interstate commerce which

might violate the ordinance. [Finding 66.})

seals

T he conclusions next state that the ordinance con-

cts with the generalities of federal sovereignty over

a airspace and with freedom of transit. [Find-

“Gag 18.] Falling back on such generalities only serves

‘emphasize the lack of any federal regulation saying

mebody must take off in a jet from Burbank at night

In brief, all the previous cases have drawn a wise

4 d careful line between municipal ordinances which

“gre in fact in direct conflict with federal law or

egulation (which are invalid) and those which are not

jeral law or regulation which says that anybody has

take off in a jet airplane within the city limits of Bur-

~ bank at night.

PREEMPTION GENERALLY:

k We have previously prepared a California Attorney

General $ opinion on the subject of jurisdiction to regu-

* fate aircraft noise pollution. 53 Ops. Calif. Atty. Gen.

“95, For the convenience of the Court we have attached

= copy as Appendix C. It was prepared in less liti-

chibi by the Appellants in their Jurisdic-

onal Statement. Colorado Anti-Discrimination Com-

2 v. Continental Air Lines, Inc., 372 U.S. 714,

“ae

land Cement Co. v. Detroit, supra, 362 U.S. 440, 80

Si Ct. 813, 4L.Ed. 2852 (1960). :

‘The staté of the law regarding Federal preemption

of airport regulation has been well summarized by a

Se ee ee

. Unquestionably broad ‘as are the powers of

the Adthinistratoe with respect to the regulation of

air traffic, it is evident in this and in other con-

~ “texts that the Administrator has not so pervasively

regulated the movement of aircraft that he has

excluded the existence of areas of proper airport

regulation.” Aircraft Owners & Pilots Ass'n. y.

Port Authority of New York, 305 F. Supp. 93,

104 (E.D.N.Y. 1969).

APPELLEES’ STRAW MAN

Appellees spent much time and effort in the trial

and in the preparation of findings in erecting and fight-

‘ing, a straw. man that does not figure in this case.

[Findings 67-82.] Though there may be no particular

burden. on interstate commerce occasioned by the Bur-

bank ordinance, appellees raised the specter of a na-

tionwide curfew which would be prejudicial to their in-

A. The Facts Do Not Support Appellees’ Assertion

A little ‘attention to the facts of this case is helpful.

No ait mail is carried to or from the Hollywood-Bur-

bank ‘Airport. [Finding 21.] No all-cargo flights are

Presently operated. from Hollywood-Burbank. [Finding

22.] ‘No flight in interstate commerce is precluded from

‘taking off from Hollywood-Burbank by the ordinance.

[Finding 61.] The only regularly scheduled flight. was

__ gn intrastate one by an airline (PSA) whose operations

are solely intrastate and whose certificate of public

_ gonvenience and necessity is issued by the California

_ Public Utilities Commission. [Findings 61, 26.] (PSA

‘iso operated an intrastate charter which was allowed

‘to continue to operate under the emergency exception

~~ tothe ordinance. [Finding 62.]) One interstate airline

- -eontended that if sufficient demand developed it an-

‘ticipated adding a flight which would normally conflict

with the Burbank ordinance. [Finding 66. ]

- Appellees raised the specter of nationwide disorgani-

- gation caused through six time zones by Burbank’s

action. [Rep. Tr. p. 13.] Again, a little fresh water on

the heat of argument is helpful. From our examination

of the schedules in evidence in this case, we conclude

‘that jet flights from Hollywood-Burbank go into only

one other time zone, and there are only four of these

‘on a typical day (none during the curfew). [Exs. 42-

46; Rep. Tr. p. 502.] With all due regard for the air-

port which is the subject of this litigation, it is not the

~ hub of American interstate commerce. It is, in the

phrase of appellee’s witness, a “neighborhood air-

“port.” [Rep. Tr. p. 224.]. The neighbors of the airport,

in the City of Burbank, would prefer their neighbor

- to be a bit quieter at night.’

“%

Ce ee Oe ee “Anion

Ste Appellee’s own witness from Continental Airlines

a manner that might lead one to conclude that the air-

Tines generated the use seine ang eam geen

<i promotional ma women = lamar grt

~~ large companies involved.

(This footnote is continued on next page)

tiie

- In- brief, the facts of this case show no national im-

pact. Indeed, the facts showed no impact at all upon

‘interstate commerce caused by Burbank’s ordinance.

B.. The Rights of Airport Proprictors Negate Appellee

Straw Mam «©

Quite briefly, sslidacaek Iubeiaedtn thy exdeteiien or ‘non-

existence’ of Federal preemption an airport proprietor

may impose a curfew. Since it may do so, the potential

of a nationwide rash of curfews exists quite independ-

natie. sina prnnenne ak (oie Agee wRIR neat upon the

authority of a city.

There exists this one generally recognized exception

to federal preemption—the power of the airport pro -

‘prietor without violation of either the commerce or the

supremacy clause to decide who is to use his airport ©

and under what conditions. See Griggs v. Allegheny

County, 369 U.S. 84, 82 S. Ct. 531, 7 L.Ed. 2d 585

(1962) (holding county as airport proprietor liable

“for damages caused by overflights); pe Atty.

Gen., supra, 75, 80. ;

The’ egiaiative history ‘of the 1968 noise amend

ments to the Federal Aviation Act and the FAA have

‘recognized the existence of this exception to federal

powers. In the words of the Senate report: :

.. “However,.the proposed legislation will not af-

fect the rights of a State or local public agency,

as the proprietor of an airport, from issuing regu-

lations or establishing requirements as to the per-

sceanine Wel oh. Botme, whey. ome created by ele

viii.

craft using the airport. Airport owners acting as

proprietors can presently deny the use of their

airports to aircraft on the basis of noise consider-

ations so long as such exclusion is nondiscrimina-

tory. . . . In dealing with this issue, the Federal

Government should not substitute its judgment for

that of the States or elements of local government

who, for the most part, own and operate our Na-

tion’s airports. The proposed legislation is not de-

signed to do this and will not prevent airport pro-

-. prietors from excluding any aircraft on the basis of

~ moise considerations.” Senate Report No. 1353,

July 1, 1968, U.S. Code Cong. and Admin. News

(1968) 2688, 2694.

_ The FAA has consistently acknowledged the pow-

“ers and responsibilities of airport proprietors in the

field of noise. The FAA’s* Notice of Proposed Rule

-- Making issued with the first proposed rules under the

_ 1968 noise amendment states the following:

“{T]his notice does not promise a federal sub-

stitute for the actions that airport operators, as

proprietors, can take and have traditionally and

responsibly taken to make their airports fit the

particular needs of their locales, such as establish-

img the conditions under which their airports

-»+ and airport facilities may be used, including the

» issuance of specific noise ceilings.” (34 Fed. Reg.

=» 457, Jan. 11, 1969.)

eS “a “th adopting the aircraft type certification noise stand-

- ads the FAA notice stated:

_.. “Relation to responsibility of airport proprie-

tors. Compliance with Part 36 is not to be con-

strued as a Federal determination that the aircraft

sili

. is ‘acceptable,’ from a noise standpoint, ~in partic-

0 wlarcairport environments. Responsibility for de-

~ using’ an airport remains with the proprietor of

that airport. The noise limits specified in Part 36

cally reasonable limits .of aircraft noise reduction

technology at the time of type certification and are

_ mot intended to substitute federally determined

- noise levels ‘for those more restrictive limits de-

- termined: to be. necessary by individual airport

' proprietors in response to the locally determined

desire for quiet and-the locally determined need

for the benefits of air commerce. This limitation

on the scope of Part 36 is required for consistency

with the responsibilities placed upon the airport

proprietor by the U.S. Supreme Court in Griggs

vy. Allegheny County, 369 U.S. 84 (1962).” 34

Federal Register 18355, November 18, 1969.

+ Most commercial airports in the United States, in-

cluding most of those in, California, are publicly

owned. (Jd. at 18356.).One major airport proprietor

has adopted noise regulations in terms of perceived

_noise ‘levels, the Port of New York Authority (which

thas: proprietary authority over Kennedy, La Guardia,

Newark: and Teterboro Airports). Airport Rules and

Regulations Rules.32010-06; Port of New York Av

thority, Terms and Conditions for the Operation of Jet

Aircraft. Its regulations restricting runway use (despite

‘FAA permission to use those runways) have been up

held against an airline's attack. Port of New York Au-

thority v. Eastern Airlines, Inc., 259 F. Supp. 745 (E.D.

N.Y. 1966). Further regulations of the Port Authority

‘Ympoding ‘a landing “fee to discourage general aviation —

ft from landing during particular hours have

been upheld. Aircraft Owners and Pilots Associa-

tion v. Port of New York. Authority, supra, 305 F.

Sapp. 93-(E.D.N.Y. 1969).

_ There is therefore no bar to governmental entities

' which own or lease airports imposing noise restrictions

"jn their proprietary rather than legislative capacity.”

Regarding FAA approved methods, see Hoover and

_ Cochran, FAA, Airport Design and Operation for Mini-

_ mum Noise Exposure (1969), 12-13; Sperry, Powers,

and Oleson, FAA, The Federal Aviation Administra-

tion Aircraft Noise Abatement Program (1968), 21-

23; 53 Ops. Cal. Atty. Gen., supra, 75, 82.

_ This being the case, appellee’s straw man must

slump. Whether a city may or may not impose a curfew

simply does not make that much difference. Since pro-

_‘prietors can impose a curfew anyway, the cities’ au-

thority is not that determinative.

C. Appellees Have Chosen the Wrong Remedy

_” Even if we were to concede the contagion of cur-

- “fews and the horrors attendant thereupon which appel-

lees assert, they have failed to pursue their appropriate

- administrative remedy.

= “We can only reiterate the suggestion we made at the

‘tial court. [Rep. Tr. p. 905, et seq.]. If Appellees’ fear

__ is a legitimate one, they should go to the FAA and

< ine if it can act under its rule-making powers.

there is a need for planes to take off from

; an airport of which the Federal government is

proprictor, Washi National, a to have a night cur-

¥ on jet operations. ASA Langiey esearch Center and Old

a University, 7: Noise Pollution: Control and

mt, p. 18° (NASA Contract NGT 47-003-028, 1970).

<r Re

major cities at night. But there could hardly be a need

to take off in jets from-every neighborhood airport dis

turbing the sleep of ‘all ‘airport’ neighbors. Perhaps the

FAA or the Congress would find it appropriate to re.

er ten Sr eee ae paitapt ops

SS ROR RE Bil take: place fn

Bi etl acter Cleans ‘eae tad PAA having

done this, it is a bit much to require that every neighbor.

hood airport be subjected’ to nighttime noise pollution.

Surely all neighborhoods are not without recourse to

their local governments, particularly when those govern-

ments are acting to implement a Congressionally-de-

clared national environmental policy. |

i. Conclusion

1. \Noise pollution: is. a problem. (Para. I, supra.)

2. Aircraft noise pollution, particularly at night, is

a problem. (Para. I, supra.)

3. cies’ See AcCleged io. Metionel Envieve-

mental Policy against pollution. (Para. II(A), supra;

42.US.C.A. §§ 4331, 4371 (B)(1).)

4. The regulations and public laws of the nation

“shall”. be “interpreted” in accordance with the Na-

tional Environmental Policy. (Para: II(A)(1), supra;

‘42 USC. § 4332(1).) ;

5. “The primary responsibility for implementing

‘this policy rests with State and local governments.” —

APara. T1(A)(1), supra; 42.U.S.C.A. § 4371(b)(2).)

ee. The local government in question, the City of

PE ee ees tat policy. (Para. II (B).)

fe ne eee .A. ‘cates of Codariuest,

, , and Audubon Park dealt with local enact-

ments in conflict with federal law, this case involves a

| ee

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General,

Jay L. SHAVELSON,

Assistant Attorney General,

Larry C. KING,

. Deputy Attorney General,

NICHOLAS C. Yosr, .

Deputy Attorney General,

Attorneys for the People of

the State of California as

Amicus Curiae.

_. The department shall adopt noise standards govern-

‘Ang the operation of aircraft and aircraft engines for

roc te " ti j a lid it i by the de-

pa to an extent not prohibited by federal law.

» standards shall be based upon the level of noise

ve toa reasonable person residing in the vicin-

21669.1 Establishment of noise standards advisory

~ committee; composition

There is hereby established an advisory committee to

sist the department in the adoption of noise stand-

tds. The committee shall be composed of seven mem-

‘bers appointed by the Governor as follows: *

an Two members, one of whom shall be represen-

¢ of homeowners concerned with aircraft noise.

_ (b) One member each from the Department of Pub-

A eee 1 ones, Caltonsin, Cities, the County

Supervisors Association, the Department of Educa-

. »and the Air Transport Association.

>In its deliberations the department and the advisory

shall be governed by the following guide-

(a) Statewide uniformity in standards of acceptable

Mrport noise need not be required, and the maximum

a aa

+(b) Due consideration 'shall be given to the econom

ic and technological feasibility of complying with the

standards promulgated by the department.

§ 21669.3 Report to legislature; effective date of regu.

lations; designation of airports having noise prob-

lem; establishment of monitoring system

(a) The department shall submit a comprehensive

report of the noise regulations adopted pursuant to

Sections 21669, 21669.1 and 21669.2 to the Legis

lature on or prior to December 31, 1970, and the

regulations shall go into effect on December 1, 1972,

except as provided in subdivisions (b), (c), and (d). —

(b) Any regulations designed to establish a noise

monitoring program at an airport shall go into effect on

the effective date of the amendments to this section

enacted at the 1971 Regular Session of the Legislature.

Any regulations applicable to airports entering service

after November 30, 1971, shall go into effect on that

the effective date of the amendments to this section

enacted at the 1971 Regular Session of the Legislature,

designate airports within their respective counties

having a noise problem for purposes of this subdivision.

Each airport so designated shall, on or before Decem-

ber 1, 1971, have a noise monitoring system meeting

the requirements of the department's noise regulations

in operation. The department may grant an extension

of time for compliance with this subdivision where an_

airport “operator shows to the satisfaction of the de-

paftment that noise monitoring equipment is not avail-

“able. This subdivision shall ‘be effective only until De-

cember 1, ee See RAE Oa be no foes

ox effect. j

Seon of, the Legiatge which ha

sons arriving and departing per year, and which is

Sead tern under subdivision (c) to have a noise

_ problem, there shall not be any increase in the noise

_ level beyond that which existed at such airport at the

the airport, such reduced level of noise shall constitute

ee the permissible limits of noise. This subdivision and

- the noise limits specified in this subdivsion, to the ex-

- tent permissible under federal law, shall be effective

- only until December 1, 1972, and Pee shall

~_ have no force or effect.

" §.21669.4 Violation of standards; enforcement; pen-

alties

(a) ites vicleticon of the ndles stendende. by aay alc

_ craft shall be deemed a misdemeanor and the operator

_ thereof shall be punished by a fine of one thousand

mel ,000) for each infraction.

. (b) It shall be the function of the county where-

h an airport is situated to enforce the noise regulations

SA pw

| stb byte department. To this ex, te oe

es Oe Stee alt firelch $0 Uic-cnforcement an

cent enforcement thereof. The operator of each air-

grt shall reimburse the county for its costs of imple-

ating the airport noise regulations contained in

cielnie

Article 8 (commencing with Section 5050) of subchapter

6 of Title 4 of the California Administrative Code,

which shall, for purposes of subdivision (c), credit

the operator for any amounts received from penalties

assessed for violations at such airport. Upon request

of the operator, the department shall review and shall

determine the reasonableness of such. costs, and such

costs may be considered in fixing any airport user fees,

regulations shall be used first to reimburse the General

Fund for the amount of any money appropriated to Carry

out the purposes for which the noise regulations are

established, and second be used in the enforcement of

the noise regulations at.participating airports.

§ 21669.5 Construction of regulations; duty of care;

presumptions; evidence

(a) The noise regulations adopted pursuant to Sec-

tions 21669, 21669.1, and 21669.2 shall not be con-

strued to establish a duty of care in favor of any per-

son or entity and shall not create for use by any person

or entity a presumption to establish in any eminent do-

main proceeding a taking or damaging of property or a

presumption to establish injury, damage, or a taking in

any action or proceeding to recover for injury,

damaging, or taking by reason of the operation of air-

craft or aircraft engines. Such regulations shall be inad-

missible as evidence, and shall not be a proper basis ~

for an opinion or a proper basis for cross-examining or

impeaching a witness, or a matter of which judicial

notice may be taken, in any eminent domain action or

Ae in any action or proceeding to recover for injury, dam-

- aging, or taking by reason of the operation of aircraft

or aircraft engines.

-_ (b) Subdivision (a) shall not apply in any action

or proceeding brought under this part to enforce the

noise regulations or to punish violations thereof.

- (¢) This section shall remain in effect until the 61st

day after final adjournment of the 1974 Regular Session

of the Legislature, and shall have no force or effect after

sinaibonitn

APPENDIX B.

TITLE 4 DEPARTMENT OF AERONAUTICS

(Register 70, No. 48—1 1-28-70)

SUBCHAPTER 6. NOISE STANDARDS

Article 1. General

5000. Preamble. The following rules and regula-

tions are promulgated in accordance with Article 3,

Chapter 4, Part 1, Division 9, Public Utilities Code

(Regulation of Airports) to provide noise standards’ \

governing the operation of aircraft and aircraft engines -

for all airports operating under a valid permit issued

by the department. These standards are based upon

two separate legal grounds: (1) the power of airport

proprietors to impose noise ceilings and other limita-

tions on the use of the airport, and (2) the power of

the state to act to an extent not prohibited by federal

law. The regulations are designed to cause the airport

proprietor, aircraft operator, local governments, pilots,

and the department to work cooperatively to diminish

noise. The regulations accomplish these ends by con-

trolling and reducing the noise in communities in the

vicinity of airports.

NOTE: Authority cited: Section 21669, Public

Utilities Code. Reference: Sections 21669-21669.4,

Public Utilities Code.

History: 1. New Subchapter 6 (§§ 5000-5006,

5010-5014, 5020-5025, 5030-5032, 5035, 5040,

5045-5048, 5050, 5055, 5060-5064, 5065, .

5070, 5075, 5080, 5080.1-5080.5) filed 10-25-

70; designated effective 12-1-71 (Register 70,

No. 48).

ae ae

~ *5001. Liberal Construction. This subchapter\, shall

* be liberally construed and applied to promote its under-

- Jying purposes which are to protect the public from

~ noise and to resolve incompatibilities between airports

vand their surrounding neighbors.

* $002. Constitutionality. If any provision of this sub-

chapter or the application thereof to any person or cir-

cumstance is held to be unconstitutional, the remainder

if the subchapter and tlie application of such pro-

vision to other persons or circumstances shall not be

_— thereby.

$003. Provisions Not Exclusive. The provisions of

this subchapter are not exclusive, and the remedies pro-

vided for in this subchapter shall be in addition to any

_ other remedies provided for in any other law or avail-

able under common law. It is not the intent of these

regulations to preempt the field of aircraft noise limita-

tion in the state. The noise limits specified herein are

not intended to prevent any local government to the

extent not prohibited by federal law or any airport

proprietor from setting more stringent standards.

5004. Applicability. These regulations establish a

mandatory procedure which is applicable to and at all

existing and future- potential airports in California

wwhich are required to operate under a valid permit

‘issued by the department. These regulations are appli-

‘table (to the degree not prohibited by federal law)

‘to all operations of aircraft and aircraft engines which

‘produce noise. Only those airports which shall have been

‘@etermined to have a noise problem (in accordance

- ‘with Section 5050) will be required to perform noise

The regulations established by this subchapter are

ot intended to set noise levels applicable in litigation

senile

construed to prescribe a duty of care in favor of, or to

create any evidentiary presumption for use by, any per-

son or entity other than the State of California, the

counties and airport proprietors in the enforcement of

5005. Findings. Citizens residing in: the vicinity of air-

ports are exposed to the noise of aircraft Operations.

There have been numerous instances wherein individual

citizens or organized citizen groups have complained

about airport noise to various authorities. The severity

of these complaints has ranged from a few telephone

calls to organized legal action. Many of these cases

have been studied by acoustics research workers under

sponsorship of governmental and private organizations.

These studies have generally shown that the severity of

the complaint is principally associated with a combina-

tion of the following factors:

(a) Magnitude and duration of the noise from air-

craft operations;

(b) Number of aircraft operations; and

evening or night).

There are many reasons given by residents for their

complaints; however, those most often cited are inter-

ference with speech communication, TV, and sleep. A

number of studies have been made related to speech

interference and hearing damage, and some studies

have ‘been made related to sleep disturbance and othet

physiological effects. These ‘studies provide substantial

evidence for the relationship between noise level and

its interference with: speech communication and its

effect relative to hearing loss. Significantly less in-

- formation is available from the results of sleep and

_ fh order to provide a systematic method for evaluat-

ing and eventually reducing noise incompatibilities in

the vicinity of airports, it is necessary to quantify

~ the noise problem. For this purpose, these regulations

establish a procedure for defining a noise impact area

gurrounding an individual airport. The criteria and

‘ ‘moise levels utilized to define the boundaries of the

~ noise impact area have been based on existing evidence

- from «studies of community noise reaction, noise inter-

~ ference with speech and sleep, and noise induced hearing

*- One of the fundamental philosophies underlying the

procedures in these regulations is that any noise quan-

tity specified by these regulations be measurable by

telatively simple means. Therefore, these regulations

utilize as their basic measure the A-weighed noise level.

which is the most commonly accepted simple measure.

To insure consistency between criteria and measure-

. ment, the units for the criteria are also based on the

A-weighted sound level rather than one of the several

More complex perceived noise levels.

=. These regulations provide a procedure to limit the

s allowable noise for an individual aircraft flyby measured

~yat specified points in the vicinity of the airport. The

~ noise limits are specified in terms of the class of aircraft

~ and measurement location.

~~ The level of noise acceptable to a reasonable person

‘Fesiding in the vicinity of an airport is established as

“@ community noise equivalent level (CNEL) value of

dB for purposes of these regulations. This criterion

—10—

im urban residential areas where houses are of typical

tially open. It has been. selected. with reference to

“It is recognized that there is a considerable in

dividual variability in the reaction to noise. Further,

there are several factors which undoubtedly influence

this variability and which are not throughly under-

stood. Therefore, this criterion level does not have a de-

gress of precision which is often associated with en-

gineering criteria for a physical: phenomenon (ce.g., the

strength of a: bridge, building, et: cetera). For this

reason, the state will review the criterion periodically,

taking into account any new information which may

become available.

- $006. Definitions (a) Sound Pressure Level (SPL):

The sound pressure level, in decibels (dB), of a sound

is 20 times the logarithm to the base of 10 of the

ratio of the pressure of this sound to the reference

pressure. For the purpose of these regulations, the refer-

ence pressure shall be 20 micronewtons/square meter

(2 10-* microbar).

(b) Noise Level (NL): Noise level, in decibels, is

an A-weighted sound pressure level as measured using

the slow dynamic characteristic for sound level meters

specified in ASA $1.4—1961. American Standard

Specification for General Purpose Sound Level Meters,

or latest revision thereof. The A-weighting characteristic

modifies ‘the frequency response of the measuring if-

‘characteristics of the human ear, The reference pressure

is 20 micronewtons/square meter (2 < 10° microbar).

cee ee

©: (ce) Noise Exposure Level (NEL): The noise ex-

_ posure level: is the level of noise accumulated during

_ @ given event, with reference to a duration of one

second. Mofe specifically, noise exposure level, in dec-

jbels, is. the level of the time-integrated A-weighted

squared sound pressure for a stated time interval or

_ event, based on the reference pressure of 20 micronew-

tons. per square meter and reference duration of one

= (d) Single Event Noise Exposure Level (SENEL):

_ The single event noise exposure level, in decibels, is

_ the noise exposure level of a single event, such as an

aircraft flyby, measured over the time interval be-

tween the initial and final times for which the noise

- Jevel of a single event exceeds the threshold noise level.

- For implementation in this subchapter of these regula-

‘tions, the threshold noise level shall be at least 30

? decibels below the numerical value of the single event

‘noise exposure level limits specified in Section 5035.

_ (e) Hourly Noise Level (HNL): The hourly noise

‘level, in decibels, is the average (on an energy basis)

~ noise level during a particular hour. Hourly noise level

‘is determined by subtracting 35.6 decibels equal to 10

~ log 3600) from the noise exposure level measured

_ during the particular hour, integrating for those periods

ang which the noise level exceeds a threshold noise

ix “For implementation in this subchapter of these regula-

tions, the threshold noise level shall be a noise level

ch is 10 decibels below the numerical value of the

Aairopriate criterion CNEL which is specified in Sec-

ge other than aircraft may contribute to the CNEL.

ere the airport proprietor can demonstrate that the

—1]2—

accuracy: of the CNEL measurement will remain within

the: required tolerance in Section 5045, the department

ni eta a ag mninane

level)

» (f) Diity Commiuntey Noise Exniivatent Level

pceeheciutinabtiabeanianlenmnmesibews inter

ibels, represents the average day-time noise level dur-

ing a 24-hour day, adjusted to an ‘equivalent level to

account for the lower tolerance of people to noise dur-

ing evening and’ night time periods relative to the day.

time period. Community: noise equivalent. level is calcu-

lated from the hourly noise levels by the following:

om, in = 10mg AL stag OD. 5 Yang BLE

. | + 10 }) antilog FEN |

HNLD are.the hourly noise levels for the period

0700-1900 hours;

-HNLE. are the hourly noise levels for the period

1900-2200 hours;

. HINEN ‘aré’‘the houtly “noise ‘levels for the period

2200-0700 hours; and 2 means summation.

~ (g) Annual CNEL: The annual CNEL, in decibels,

is the average (on an nergy basis) of the daily CNEL

over a 12-month period. The annual CNEL is calcu-

lated in accordance with the following:

_emcen addy F ne ( 10 )| :

"\CNEL(i)—the daily. CNEL foreach day in a cot-

mods 12-month:period, and 2 means summetion.

sill

_ When the annual CNEL is approximated by measure-

_ qients on a statistical basis, as specified in Section 5022,

_ the number 365 is replaced by the number of days for

- which measurements are obtained.

+ (h) Noise Impact Boundary: Noise impact bound-

_ afy around an airport consists of the locus of points

_ for which the annual CNEL is equal to the criterion

value.

_. (i) Noise Impact Area: Noise impact area, in

_ Square statute miles, is the total land area within the

noise impact boundary less that area deemed to have a

aompatible land use in accordance with Section 5014.

(j) Airport Proprietor: Airport proprietor means

"the holder of an airport permit issued by the depart-

_ ment pursuant to Article 3, Chapter 4, Part 1, Division

| 9, Public Utilities Code.

(k) Aircraft Operator: Aircraft operator means the

| kee GideRictal ‘cin OF de> ‘édiccahs wus authority

to control the aircraft utilization; except where the air-

craft is leased, the lessee is the operator.

_ pursuant to either a federal or a state certificate of pub-

“lic convenience and necessity, including any certificate

_ issued pursuant to 49 U.S.C. Section 1371 and any

_ permit issued pursuant to 49 U.S.C. Section 1372.

-»)(m) General Aviation: General aviation aircraft

_ ate all aircraft other than air carrier aircraft and mil-

____(n) Department; Department means the Department

, i of Aeronautics of the State of California.

~ (©) County: County, as used herein, shall mean the

ty board of supervisors or its designee authorized

senile

. Article 2. Airport Noise Limits

90: Pir ptied: ‘The purpose of ‘these regulations is

to provide x positive basis to accomplish reeoiton of

5011, Methodology for Controlling and Reducing

Noise Problems. The methods whereby the impact of

airport. noise shall be controlled and reduced include

but are not limited to the following:

.) (a). -Bacouraging use of the airport by aircraft classes

use by higher noise level aircraft classes;

(b) Encouraging ‘approach and departure flight

areas;

(ey etdutinsinns utilization schedules to take

into account adjacent residential areas, noise characteris-

tics of aircraft and noise sensitive time periods;

(a): Reduction of the flight’ frequency, particularly

in the’ most noise sensitive time periods and by the

pm 20

““"(e) ‘Employing’ shielding for advantage, using nat-

bpbon arb perms) obama ‘and

Os opi ne abl cra galt

Oh ne ern ame

a Se

-» ¢= Preference shall be given to actions which reduce

e the impact of airport noise on existing communities.

- Land use conversion involving existing residential com-

_ tunities shall normally be considered the least desirable

action for achieving compliance with these regulations.

‘ie 3012. Airport Noise Criteria, Limitations on airport

noise in residential communities are hereby established.

(a) The criterion comnmnity noise equivalent level

(CNEL) is 65 dB for proposed new airports and

for vacated military airports being converted to civilian

use.

(b) Giving due consideration to economic and tech-

- nological feasibility, the criterion community noise

equivalent level (CNEL) for existing civilian airports,

_ (except as follows) is 70 dB until December 31, 1985,

_ and 65 dB thereafter.

_ (c) The criterion CNEL for airports which have

ge ee tarbctan dir-cocrier alecratt operp-

_ tions and at Jeast 25,000 annual air carrier operations

——e plus landings) is as follows:

oe ee Date CNEL in decibels

| Effective date of regulations to 12-31-75 .. 80

irre OS PE te 75

OMIA OO WiS BS oi liens bev ercdnnnntoveccncine 70

1-1-86 and thereafter a . 65

: "5013. Noise Impact Boundary. The noise impact

SS Gbondery at t airports which have a noise problem as

_ ermine in scorn with Seton 5050 hal

tablished and validated by measurement in accordance

the procedures given in Article 3 of this sub-

/@haptet..For proposed new airports, or for anticipated

)ehanges of existing airports, the noise impact boundary

—16—

shall be estimated by applicable acoustical calculation

“The area of land which is within the noise impact

boundary and which’ has incompatible land use is

utilized as 4 measure of the magnitude of the noise

problem at an airport. The concepts of noise impact

boundary and noise impact area are illustrated in

Figure 1.

The noise impact cree is the sum of all the crow-hatched creat, in square statute miles,

Noise impoct B .

FIGURE 1. CONCEPTUAL SKETCH OF NOISE IMPACT BOUNDARY AND NOISE IMPACT AREA

4 , SAAS, *

rit Yyfyy Ws Y, i,

CIA Csf4

TA Fv

ee 5014. Compatible Land Uses Within the Noise Im-

pact Boundary. The criterion for the noie impact bound-

_ ary was established for residential uses including single-

_ family and multiple-family dwellings, trailer parks, and

schools of standard construction. Certain other land

_ uses may occur within the boundary but be compatible

with the community noise equivalent level and hence

be excluded in the calculation of noise impact area.

For this purpose, the following land uses are deemed

- compatible:

(a) Agricultural;

(b) Airport property;

(d) Commercial property;

(¢) Property subject to an aviation easement for

noise;

_ (f) Zoned open space;

(g) High-rise apartments in which adequate protec-

/ tion against exterior noise has been included in the

- design and construction, together with a central air con-

_ ditioning system. Adequate protection means the noise

_- teduction (exterior to interior) shall be sufficient ‘to

"assure that interior community noise equivalent level

_ in all habitable rooms does not exceed 45 dB during

__ aircraft operations. Acoustical performance of the build-

_ ings shall be verified by calculation of measured by

te qualified officials of the building inspection agency of

yey ha city or county in which the buildings are situated;

*y - (h) In the case of existing airports and existing

i only, residential areas in which existing homes

have been acoustically treated need not be subject to

» ‘exterior noise limits quite as strict as those for normal

— construction. For this purpose, the com-

onli:

munity noise equivalent level on .the boundary of such

a residential area may be increased by as much as 15

dB over the community noise equivalent level criterion

for nonacoustically treated homes. The amount of the

increase allowed on the boundary is the difference be-

tween the noise level reduction of the treated home and

the value 20 decibels which is assumed to be the noise

level reduction of an average normal residence. The noise

level reduction of a home is defined as the average

difference between aircraft fioise levels in free space

outside of the home and the corresponding noise

levels in rootns on the exposed sides of the home.

In carrying out this section, the actual use to which

the land is put, not the classification for which the

land is zoned, is determinative. —

Article 3. Establishing and Validating Noise

Impact Boundaries for Airports Required

to Monitor

5020. Validation of the Noise Impact Boundary. For

airports with a noise problem (in accordance with Sec-

tion 5050), the noise impact boundary shall be vali-

dated by measurements made at locations specified in

Section 5021 and according to frequency requirements

specified in Section 5022. These measurements shall

be utilized to calculate the daily community noise equiv-

alent levels. These daily CNEL values will then be

averaged (on an energy basis) to obtain the annual

CNEL at each of the community measurement loca-

tions. The location of the noise impact boundary will

be considered valid if the value of the annual CNEL

lies within +-1.5 dB of the criterion value.

$021 ‘ Community Measurement Locations. At least

twelve (12) locations, approximately equidistant, but

with reference to the airport's flight patterns.

$022. Frequency of Measurement at Community

of 70 dB, continuous mofotoring is required at those

monitoring positions which fall within residential areas.

Measurement for at least 48 weeks in a year shall be

considered as continuous monitoring.

(b) For all other locations and for all locations at

other airports, an intermittent monitoring schedule is

allowed. The intermittent monitoring schedule shall be

designed so as to obtain the resulting annual CNEL

as computed from measurements at each location which

will correspond to the value which woud be measured

by a monitor operated continuously throughout the

year at that location, within an accuracy of +1.5 dB.

Thus, it is required that the intermittent monitoring

schedule be designed so as to obtain a realistic statistical

sample of the noise at each location. As a minimum,

this requires that measurements be taken continuously

for 24-hour periods during four 5-day samples through-

out the year, chosen such that for each sample, each

day of the Weak is represented, the four seasons of the

year are ted, and the results account for the

éffect of annual proportion of runway utilization. At

| ‘most airports, these intermittent measurements can be

accomplished by a single portable monitoring instru-

3 ‘ment.

~~ 5023. Initial Establishment of the Noise Impact

Boundary. The method to be used for initial estab-

scien

quired ‘to monitor will: vary depending upon specific

( 4) Calculate the sieibcinaai location of the noise

impact boundary using applicable acoustic estimation

techniques.

(b) Select convenient measiremnent locations on this

estimated boundary according to Section 5021.

ments along lines perpendicular to the estima‘ed noise

impact boundary. For example, two to three measure-

ments over a one-to-seven day period along a line

perpendicular to the estimated noise impact boundary

should provide sufficient data to define, within the re-

quired accuracy, the nominal position of the noise im-

pact boundary.

_. Due consideration should be given to the number

and time period of aircraft operations, mix of aircraft

classes, average runway utilization and other measure-

able factors which would cause a difference between the

trial measurements of CNEL and the expected annual

average.

_ (d) Initiate validation measurements of the noise im-

pact boundary. following selection of permanent or in-

termittent monitoring locations to comply with the val-

idation accuracy criterion: specified in Section 5020.

For permanent measurement locations at which the

measured CNEL lies outside this accuracy criterion,

suitable auxiliary measurements. or analytical methods .

may be used to extrapolate the measured CNEL to

determine the value on the noise impact boundary.

‘Such extrapolation procedures are subject to approval

by the department.

eae

5024. Deviations from Specificed Measurement Lo- -

cations. Recognizing the unique grographic and land

use features surrounding specific airports, the depart-

ment will consider measurement plans tailored to fit

any aifport for which the specified CNEL moni-

toring locations are impractical. For example, monitors

_ should not be located on bodies of water or at

points where other noise sources might interfere with

aircraft CNEL measurements, nor are measurements

- required in regions where land use will clearly remain

compatible.

- 5025. Alternative Measurement Systems. The acqui-

sition of measurement systems that are more extensive

or scientifically more refined than those specified here-

in is encouraged, particularly at airports with a major

noise problem, where compliance with the intent of

' Section 5075(a)(4) requires more comprehensive

noise monitoring, particularly to monitor noise abate-

ment procedures. Airports contemplating the acquisi-

tion of such monitoring systems may apply to the de-

_ partment for exemptions from specific monitoring re-

quirements set forth in this subchapter of these regula-

: ti

Article 4. Measurement of Single Event Noise

Exposure Level

- 5030. Measurement. Requirements. Measurements, of

2 the single event noise exposure level (SENEL) shall

~ be made in the vicinity of airports with a noise problem

"ag determined in accordance with Section 5050. These

_ Measurements are intended to monitor the noise of air-

department i in accordance with Article 5.

3 seer maaan with the: noise limits recom-

mended: by the airport proprietor and approved by the

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5031. Measurement Locations. Measurements shall

be made on the centerline of the nominal takeoff and

landing flight tracks for air carrier jet aircraft and

private jet aircraft at the locations specified in Figure

2. The nominal flight track is the line projected on the

Measurements will not be required for landing or take-

off flight tracks associated with aircraft operations

ground under the nominal flight path of the. aircraft.

~ which do not contribute to the noise impact area of the

5032. Frequency of Measurement. At each micro-

phone location, single event noise exposure level meas-

urements shall be made continuously for a minimum

of 48 weeks per year. The remaining 4 wéeks are in-

tended to allow for intermittent periods of down-time

for equipment maintenance and calibration.

Article 5. Single Event Noise Limits

5035. Maximum Single Event Noise Exposure Lev-

els. The proprietor of each airport which is required

to perform noise monitoring shall recommend to the

department the single event noise exposure level limits

appropriate to his airport. In no event shall the limits

recommended by the airport proprietor exceed the

values in Figures 3A and 3B which correspond to the

noisiest aircraft class utilizing the airport on a recur-

rent basis (which shall mean an average of at least

- two aircraft operations per day) during the six-month

period prior to the determination that the airport has

a noise problem (Section 5050). The values in Figures

- 3A and 3B (see pp. 24-25) are based on maximum

_ gross. weight operation without noise abatement flight

procedures under standard atmospheric conditions at

sea level. Airport proprietors are therefore encouraged

to recommend lower limits. Upon approval of such

limits at a specific airport, those limits will be enforced

__ by the county in accordance with this entire subchapter

__ Of these regulations.

__ Article 6. Additional Monitoring Locations

. $040. Additional Monitoring Locations. For airports

| which are required to monitor, additional monitoring

cations may be useful in some cases. These additional

“f

mmone

e ANN wae

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dah

es SH DE :

2 4 6 Se

- @) Tekeoff

"FIGURE 3A. MAXIMUM LIMITS FOR’SINGLE EVENT NOISE

EXPOSURE LEVEL

BY Scent ea NE Ge. 2

single event noise exposure levels (such ‘as monitoring

of noise’ abatement flight procedures) or community

noise equivalent levels (such as at fixed points in high

noise level residential areas). The frequency of mea--

surement at these additional Monitoring locations

should be determined on the basis of ¢ach specific

<x<n lf

+38

12s bh 4

wed E “ tii tpi

: ae eT

ai 4 Phere LE

Ns F Lt

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FIGURE 3B. MAXIMUM LIMITS FOR SINGLE EVENT NOISE

EXPOSURE LEVEL

Article 7. Noise Monitoring System Requirements

5045. General Specifications. (a) The noise monitor-

ing system shall provide for the following outputs:

e (1) In the vicinity of airport (see Article 5).

Single event noise exposure levels exceeding the

» -- maximum limits, together with their time of oc-

4 eurrence.

~~ (2) In community (see Section 5020). Hourly

noise level for each hour of the day, together with

identification of the hour.

(b) The overall accuracy. of the noise measurement

system shall be + 1:5 dB, determined in accordance with

the procedure of the noise ‘measurement system speci-

y aac lds sa lama

regulations.

5046. Detailed Specifications. Noise monitoring sys-

tems ‘shall be in accordancé with detailed specifications

tions. .

5047, ‘Field Measurement Precautions. Specific loca-

t n a residential area not immediately

por cop eraly Seay freeway, railroad track, et

cetera. The measurement microphone shall be placed

20 feet above the ground level, or at least 10 feet above

neighboring roof tops, whichever is higher. To the ex-

tent practicable, the following precautions shall be fol-

lowed:

: (a) Each SENEL monitor location shall be in an

‘open area surrounded by relatively flat terrain, having

no excessive sound absorption characteristics such as

might be caused by thick, tall grass, shrubbery, or

wooded areas.

th) Ho obetictidlts Wise’ ‘dignificantty influence the

sound field from the aircraft shall exist within a conical —

defined ‘by an axis along a line of sight normal to the

aircraft path and by a half. angle of 75 degrees from

this axis.

_ ©(c) When the foregoing precautions are not practi-

gable, the microphones shall be placed at least 10 feet

- above neighboring buildings in a position which has a

' elear line-of-sight view to the path of the aircraft

in flight.

~ 5048. Number of Measurement Systems. The fre-

quency of measurement specified in Sections 5022 and

5032 has been designed to limit the number of moni-

toring systems required. The minimum number of sys-

_ tems required per airport is:

~ --°(a) One for intermittent measurements of the noise

5 impect boundary, plus

~ (b) One for continuous measurement of the single

"event noise exposure level for each landing or depart-

ure flight track as specified in Section 5031.

_.. This minimum number will increase where necessary

-- to conform to the requirement that separation distance

_ between monitoring positions on the boundary not ex-

- -eeed one and one-half (1.5) statute miles or when

_eontinuous measurements are required on the measure-

‘ment boundary in accordance with Section 5022.

2 Article 8. Implementation by Counties

$050. Counties. (a) The county wherein an airport

is situated shall enforce this subchapter of these regu-

(Db) “is recognition of the requirement to allow the

- ™aximum amount of local control and enforcement of

this regulation, the county shall determine which of the

“airports within its boundaries are required to initiate

-Mircraft noise monitoring in accordance with these reg-

lations. The county shall require noise monitoring

‘the airports within its boundaries that are deemed

—28—

to haye a: noise problem as determined ' by the’ county.

For airports with joint use by. both military and civilian

aircraft operations, the determination of the existence

of; a moisé’ problem ‘shall be based upon: the civilian

operations. In. making a determination that a noise

problem exists around an airport, the county shall:

(1). Investigate, the possible existence of a noise

_ove impact: area greater-than zero based on a CNEL

. of -70.dB, and. determine whether or not people

actually reside inside the noise. impact boundary;

(2) Review other information that it may deem

relevant, including but not limited to complaint

history and legal actions brought about by aircraft

_ noise; and

(3) Coordinate with, and give due considera-

tion to the recommendations of, the county airport

1 land use commission (as defined in Public Utilities

vi " Code Section 21670). gt,

: dec) vAaplalibeiad.or ieteddsted, gemon or aay govern-

ment-agency disagreeing with the county's findings re-

garding the existence of a noise problem at a given

airport may file an appeal with the department. Upon

receipt of such an appeal, the department shall make

vam investigation .and .determination as to the validity

of the county's findings. The department shall serve

by mail the written record of such investigation and de-

‘termination to the county, the airport proprietor, and

ithe: affected or interested person or governmental

saigency. ‘If. the depattnient: finds that the county's de-

termination does not-correspond to the facts, the county

‘shall, adhete to the’ determination ‘of the. department.

‘Whenever the department has. served such record, the

—— ee oe

or government agency may in writing within 10 days

_. demand a hearing. In such case, the department shall

. file-a statement of issues and shall conduct proceedings

» im accordance with the Administrative Procedure Act

_ (Chapter 5, Part 1, Division 3, Title 2, Government

¢ Code).

_*“(¢d) For all airports required to perform noise moni-

_ toring, the counties shall validate monitoring data sup-

plied by the airport proprietor and shall enforce these

ae regulations in all respects.

_. (e) The county shall submit quarterly reports to the

_ Department of Aeronautics. Each report is due 45

_ days after the end of the quarter of the calendar year

‘covered in the report. The report shall contain at least

_ the following information on each airport within the

county covered by these regulations:

: (1) A map illustrating the location of the noise

impact boundary, as validated by measurement,

and the location of measurement points, in the

four preceding quarters;

(2) The annual noise impact area as obtained

from the preceding four calendar quarters, and

as obtained in accordance with Article 2 of this

subchapter of these regulations;

(3) The daily CNEL measurements, together

co, Wath identification of the dates on which each

"measurement was made, number of total aircraft

operations during the quarter, estimated number

of operations of the highest noise level aircraft

» class in the quarter, and any other data which is

| pertinent to the activity during the quarter. In ad-

dition, the HNL data shall be retained for at least

3 years, and made available to the department

—30—

+. .(4)- They total. number: of recorded: violations

Jot Of-the single. event: noise exposure. level limits,

.. subtotals: of: such violations. categorized by aircraft

. Class; a list of the mamies of the aircraft: operations

‘ dm question; the numberof violations by each, the

single event noise exposure level corresponding to

each violation, and the disposition made or fine

(f) ‘The counties shall establish the requirements for

identification of aircraft operators whose aircraft ex-

Geed ‘the single event’ noise exposure levels in Article

5 of Subchapter 6 of these regulations.

_. (g) The:department will maintain. in file, for a peri-

od of at least 3. years, all the noise data received pur-

suant to these regulations, ‘These records shall be main-

tained ‘in accordance with the provisions of the Cali-

fornia Public Records Act (Chapter 3.5, Division 1,

Title 1, Government Code).

> Article 9. Implementation: by Aircraft Operators

"5055, Aircraft Operators. No operator of an aircraft

shall operate any aircraft in excess of the single event

ngise exposure level limits adopted in accordance with

Article $ of this subchapter of these regulations. No

violation, exists if the operator establishes that such op-

eration is the direct result of the pilot's exercise of his

‘fesponsibility for safety of the passengers, crew, cargo

‘and aircraft or ‘of his emergency authority. Violation

‘ot soch: limits ‘is pomishable ‘as prescribed in Public

Aiba bib denglemneatation biy:Alegort Peopriotces

' 5060. Monitoring Requirements. (a) All airport pro-

- prietors shall cooperate with the county in the county’s

"investigations to determine the existence of a noise

problem, and shall furnish such data as the county

__ (b) Each airport proprietor whose airport is deter-

a mined to have a noise problem shall measure, establish

and validate noise impact boundaries, monitor as _re-

quired in Articles 3, 4 and 7 of this subchapter of

these regulations, and shall furnish such data as the

county may require.

5061. Single Event Noise Limit Violations. No aitr-

_ port proprietor shall knowingly permit any aircraft

_ operator to exceed the single event noise exposure level

jimits established in accordance with Article 5 of this

a oe

- * 5062. Noise Impact Area Violations. No airport

_ pfoprietor shall operate his airport with a noise impact

- area of other than zero unless said operator has a var-

- jance as mang in Article 13 of this subchapter of

5063. Submittal. of Monitoring Plan. Each airport

: proprietor who is required to perform noise monitoring

i ‘shall submit a description of his monitoring aor to the

st 4

is The general monitoring system plan, including

ce ‘at least locations and instrumentation;

onan

(ce): Statistical sampling plan: proposed for: intermit-

tent monitoring at community locations;

(d) ‘The proprietor’s recommended single event noise

(e) Additional information as pertinent or as re-

quested by the department.

5064. Grounds for Approval. Failure of the airport

proprietor to comply with the provisions of Subchapter

6 of these regulations constitutes a ground for denial

of approval of an airport site within the meaning of

Public Utilities Code, Section 21666.

Article 11. Implementation by the Department

5065. Implementation by the Department. The de-

partment will review the data submitttd quarterly by

the counties for the purpose of assessing the degree of

compliance with this subchapter of these regulations.

The department’s review will include, but not be limited

to, observation of any changes in boundary monitor

positions and any changes in numerical values of

CNEL.

Article 12. Schedule of Implementation

_ 5070.. Schedule of Implementation. (a) For air-

ports in existence on the effective date of this subchap-

ter of these regulations, counties shall complete their

determination of whether or not a noise problem exists

within the shortest feasible time after the effective date

of these regulations. In no event shall the time for com-

pletion of this determination exceed 6 months from the

effective date of these regulations. .

(b) ‘Each proprietor of an airport that has a noise

problem, upon receipt of notification from the county,

shall initiate noise monitoring within the shortest feas-

ible time not to exceed 6 months in accordance with

_. this subchapter of these regulations and concurrently

_. shall make application to the department for a tem-

'- porary variance in accordance with Article 13.

. Article 13. Variances

“a 5075. Variances. (a) In granting variances, the de-

partment shall be guided by the underlying intent of

these regulations as follows: ’

(1) That the noise impact area surrounding

proposed new airports be zero;

(2) That the proprietor of each existing air-

port having a surrounding noise impact area of

zero based on a CNEL of 70 dB take actions to

prevent a noise impact area of greater than zero;

(3) That the proprietor of each existing air-

port having a surrounding noise impact area of

greater than zero based on a CNEL of 70 dB

take actions to prevent an increase of the airport’s

noise impact. area; and

(4) That the proprietor of each existing air-

port having a surrounding noise impact area of

greater than zero based on a CNEL of 70 dB be

- fequired to develop and implement. programs to

_ feduce the noise impact area of the airport to an

-. acceptable degree in an orderly manner over a

reasonable period of time.

-(b) Am airport proprietor. may request variances

_ from the requirements of any or all of these regula-

jtions, except for Sections 5012 and 5013, for periods

ue as mot exceeding one year as set forth hereinafter:

ore ne ee Spnneintde: a capety to, the

ac Pepin

wailtiieaes

.o(2) Such application »for -variance ‘shall be

nab upon sitieeh pekicte: et ee shall

») make available: «

£95 ae dpb Wah” Gk TOA th 18

sons. why the airport proprietor, believes said var-

_ dance is. necessary. The application shall state the

~~ future date by which the airport proprietor ex-

“Deets to achieve compliance with the regulations

from which a variance is sought. The application

shall: set forth an ‘incremental schedule of noise

impact area reductions for the intervening time.

(4) The department may grant a variance if

the public interest would be satisfied by such a

variance. Ii weighing the public interest, the de-

. partment’s “considérations include but are not

«, ‘limited to the following: »

(A): The economic and technological feas-

sas 87 <i wR em baceamamia

- - set by these regulations;

@®) Lisa noise —" should the variance

for which the variance is sought; and

“(D)' Whether the airport proprietor is tak-

‘ing bona fide measures to the best of his ability

to achieve ° the noise standards set by these

regulations.

(5) Bs aan tee:

_plcant for a variance

' (6) Chk fede baGRIS; Ge upon! the: request of

an ‘affected’ or ‘interested person, the department

cas enpaan aaata lic eit in connection with the

“<\" gpproval’ of ‘an application for a: variance. Any

—35—

#», “interested person may obtain from the department

-information on pending requests for variances at

_ -»-oeg(7) Phe° department in granting a variance

_ »*voaaay impose reasonable conditions which it deems

«ecessary ‘to effectuate the purposes of. this sub-

chapter of these regulations.

_ Atticle 14. Specification: Noise Monitoring System

- 5080, Purpose and Scope. (a) Purpose. This speci-

a Beation establishes the minimum requirements for in-

strumentation to be utilized by agencies required to

. inonitor aircraft noise in accordance with Articles 1

through 13 of this subchapter of these regulations.

» ~~ (b) Scope. Two measurement: systems are defined

_ herein. One system shall be utilized to monitor the

_ ftoise at specifically-designated locations adjacent to

"airport runways. The second system shall be utilized to

monitor noise levels at specifically-designated locations

_ dn the community surrounding the airport.

(ce) Design Goals. The design goals for the monitor

~ ‘system are accuracy, reliability, and ease of main-

" tenance. The measurement techniques set forth are suf-

ficently uncomplicated so that current state-of-the-art in-

Strumentation equipment may be utilized to configure

the two systems. Analysis and recording techniques

‘vary; however, this specification delineates a procedure

whereby maximum cdemnioaality of systems elements

The monitor system specifications are not intended

a. The specifications allow the utilization of

ipmer oy sens analog systems to automated

—36—

upon the specific monitoring:requirement and the na-

ture of existing user instrumentation.

_ {This is a total:systems specification. It is the preroga-

tive--of the user to configure’ the: system with com-

equipment and personnel:

5080.1. Additional Definitions Applicable to Article

14. (a) Field Instrumentation, Refers to those elements

of a noise. monitoring system that are exposed to the

outdoor environment in.the vicinity of the measurement

microphone, This equipment must function within

specification during exposure to a year-around environ-

ment adjacent to any airport licensed by the state of

California.

_. (b). Centralized Instrumentation. Refers to those

elements of the noise monitoring system which will

be contained in an environmentally-controlled room.

itorinig system shall measure single event noise exposure

levels exceeding the maximum allowable single event

noise exposure. Jevel and shall log the time of occur-

rence of each such .event. An SENEL system consists

of two. subsystems: a noise level subsystem. and an in-

tegragor/logger subsystem.

»¢d) HNL. Monitoring Wiens The HNL .monitor-

ing system shall measure the hourly noise level and

shall provide: identification of the hour. This system

shall be deployed. as a community monitoring system. ,

An. HNL. system consists. of two subsystems: a noise

Jevel, subsystem: and. an: integrator/logger subsystem.

43\€e):\Noise Level Subsystem. This term defines a sub-

system. — of a microphone, an . A-weighted

filter; a; squaring circuit and a lag network. This sub-

system: is used to derive a signal representing the mean

__ (f) Integrator/Logger Subsystem. This term defines

_-- g@-subsystem ‘composed of .a threshold comparator, an

integrator,’a clock, an accumulator, a logger or ages

an SENEL comparator (SENEL system only), and

~ logarithmic converter. This subsystem shall be used

E. to transform the output from a noise level subsystem

in excess of a pre-set threshold into SENEL or HNL.

5080.2. Examples of Possible System Configurations.

(a) ‘Approach. Two systems have been defined: (1)

the SENEL monitoring system, and (2) the HNL moni-

figuring systems to produce SENEL data and HNL

Z data. These systems may be analog systems, digital sys

tems, or combined analog and digital systems. Figures

4 and 5 illustrate two configurations which can provide

SENEL and HNL measurements. The system con-

_ figurations described herein are presented for informa-

Bt tion only and not as specific design criteria.

_ ..{b) SENEL System Configuration. An SENEL

sosiaes dang be commpoend:cf the lollowing eleeneats:

. =€1)° Noise Level Subsystem.

(A) Microphone. The microphone converts

acoustic data to an equivalent electrical volt-

yo waisd “(B) A-Weighting Filter Network. This filter

: “modifies the voltage from the microphone sys-

tem so that its frequency characteristics are

shaped to an A-weighted, relative response in

- “accordance with weighing curve A in ASA

~~ §4.4-1961, or latest revision thereof.

. (C) Squaring -Circuit. This circuit. provides

‘a continuous, instantaneous square of the value

en ASO ie aa al

EOR @) Endy Bleettick: Eidmclecalt-ep bon fire

> Onderdlag’ (single-pole:filter) used to smooth the

output of the squaring» circuit for delivery to

subsequent circuits.. The lag network provides a

slow dynamic characteristic as defined for a

sound level meter in ASA §1.4-1961, or latest

revision thereof.

(2). SENEL Tsdiaiintioanes Sion,

- (A) Threshold Comparator. This device gen-

erates an output signal during’the time its input —

‘exceeds a preset threshold level.

(B) Integrator. This circuit’ provides an out-

put signal which ‘is the definite time-integral of

the input ‘signal. ‘The input is a slowly-varying,

smooth, unipolar signal delivered from the lag

network. The integrator has three operational

‘states: integrate or run, hold, or reset. These

-$tates would ‘be® controlled by the threshold-

- comparator: Initially, before the integrator in-

put signal exceeds the threshold signal, the in-

. » tegrator is held in reset. When the threshold is

exceeded, the integrator. is set in the integrate

state, causing the output to be the time-integral

of the input. When the input next falls below

the threshold, the integrator is set into the hold

state. The output of the integrator is, at hold

_.» time, the. time-integral of the input. while it ex-

, ceeded.,the measurement. threshold. The same

signal. causing hold. would be used to read the

—{>—

- output of the integrator and the true time when

the hold. command occurred. Following those

readings, the integrator would be returned to a

reset state.

cuit may be used to store the value of the

integral at the time of integrator hold to mini-

mize the time required for the integrator to be

maintained in hold. —

(D) Clock, This device generates true time

which may be directed to a logger upon an in-

tegrator-hold command.

(E) Logarithmic Converter. This element is

used to convert the integrated mean square

sound pressure output from the integrator (or

sample and hold) into an SENEL having start

time and stop time defined by the threshold cir-

cuit and a reference duration equal to one sec-

ond. The reference duration may be introduced

as a gain (or loss) term at the input to the

log-converter or as a voltage offset at the out-

put from the logarithmic converter.

(F) SENEL Level Comparator. The SENEL

comparator controls the actual printing/logging

operation. If the signal appearing at the output

of the logarithmic converter exceeds a pre-de-

termined value, the comparator will issue a

print command. If the pre-determined value is

not exceeded, the event is not recorded.

(G) Logging Element. This element may

be a printer which can concurrently or sequen-,

tially print out values of true time and SENEL.

—40—

oe) HNL -System:-Configuration. An HNL system

se GAIT A OI vs

33 evel subsystem is identical to the SENEL noise

* €A) Threshold’ Comparator: Similar except

iit i: click ev ba Sajitnte over » ct

treat but peal vege

_. , (B) Integrator. Similar, except that the in-

ane tegrator is controlled in its reset, run, and hold

s,s. (States so. that. (1);.it integrates for some fixed

co: jperiod. of time; :¢.g., 60: seconds, (2) it “holds”

“Cony long “enough to’ transfer ‘out ‘the output

9° walle for ‘that fixed period integration, and (3)

" it“resets” only long enough to return the out

pat’ fo. zero’ 20 that another “integrate” period

‘ou e86@D) Clock: Phis device: controls the timing

bes ‘of ‘the ‘integrator and ‘the accumulator readout.

CB), Logarithmic Converter (Optional). This

element is used to. convert the. accumulated in-

__ tegrated. noise Jevel to. a. logarithmic quantity

>» proportional.to. HNL. : ,

102 Se@Fy SENEL» Level: Comparator. Not te-

Gis

(G) Logging Element. Similar, except sub-

stitute HNL for SENEL.

(H) Accumulator. This device is used to

store output of the integrator for all events ex-

ceeding the threshold level within a 3600 sec-

ond period. A print command signal is also

provided on the hour to the logger/printer at

one hour intervals.

5080.3 Performance Specifications. (a) Overall

_ Accuracy. The overall accuracy of both systems shall

be 1.5 dB when measuring noise from aircraft in flight.

-_ It is the intent of the following specifications to verify

this accuracy with laboratory simulation.

(b) Noise Level Subsystem.

(1) Frequency Response and Microphone

Characteristics. The frequency response, and as-

sociated tolerance of the subsystem, shall be in ac-

cordance with IEC Publication 179 entitled

“Precision Sound Level Meters,” paragraphs 4, 5

and 8 for the A-weighting network, to be super-

seded by the specifications for the Type 1 pre-

cision sound level meter in the latest revision of

ASA $1.4-1961, when available.

(2) Dynamic Range. The system output shall

be proportional to the antilog of the noise level

over a noise level range of 60 dB to 120 dB.

(A) For the SENEL subsystem, this range

may be covered in 30 dB or greater increments

.... through the use of attenuators. The noise level

__ for each attenuator range shall be at least 40 dB

—4i2—

«below full: scale. Full scale range shall apply to

signals with a crest factor as great as 3:1.

_(B). For the. HNL. subsystem, the internal

i» flectrical, noise shall. not exceed an equivalent

input noise level of 50 dB, and the full scale

"Tange of 120 ‘dB shall apply to signals with

_ eat ia apt hi

6) Linearity. “The electrical amplitude response

to sine waves in the frequency range of 22.4 Hz to

11,200 Hz shall be linear ‘within one decibel from 30

dB ‘below each full-scale’ fange ‘up to 7B above the

tall'scale range ‘on any’ piven ‘tainge’ of the instrument.

() Integrator /Logger Subsystem. ;

(1) Threshold. Comparator. my the

threshold level shall be selectable in’steps of no

"greater than 10 dB over a noise level range of at

least 60°to 90 4B. For HNL, ‘the threshold level

“shall ‘be adjustable over @ noise level range of at

', least 55 to 70 dB. In both cases, threshold trig:

__ geting shall be repeatable with --0.5 dB.

| (2)SENEL Comparator,.The maximum allow-

able ‘SENEL ‘shall be. selectable over an SENEL

range of 85 to’125 dB:Comparator sensing shall

‘+ berepeatable within +-0.5 dB...

(3) Clock: The ‘clock shallbe capable of be-

ing ain aariiagr ulin wie an accuracy of

gad. n'a 24houe: pio For SENEL, ‘the clock

|, Otitput which identifies ‘the ‘start or stop time of

the single event shill be readable within one sec-

ond.

ae SS

oF (4) ‘End-to-End Accuracy. The end-to-end ac-

BS curacy of the integrator/logger subsystem is de-

predicted for the wave of a given duration at an

amplitude exceeding the. measurement threshold by

at least 1 dB, and at all higher amplitudes within

the range. The square wave shall be applied at

the input to the integrator and level comparator.

(A) SENEL Integrator /Logger Subsytem.

; For square waves defined at all frequencies be-

t tween 0.025 and 1.0 Hz, the subsystem shall

a output the SENEL exceeding the maximum al-

lowable SENEL and its time of occurrence to

demonstrate end-to-end accuracy.

(B) HNL Integrator/Logger Subsystem.

1. For each hour during which no noise

event exceeds the HNL system noise level

threshold, the subsystem shall output the time

on the hour, and indicate that the antilog of

the HNL for the preceding hour is zero.

2. The end-to-end accuracy shall be de-

termined over the range of HNL from 45

dB to 95 dB for each combination of the

following conditions which gives a value in

q this range:

if a. Square waves, as defined above, shall

= have durations of 1, 3, 10, 30 and 100

cycles.

EOE NRE eg erie it

oa Pah see Aeetnea Suny vel

~~+44—— 4

Lies Ley Bs Squarewayes: shall.be at frequencies

- 0£:0.025,.0:05, 0:10-and-0.20-Hz...

2 ey Square “waves shall have’ amplitudes

Rifas ik. 9 oe age ig cedaalli

— 90, 100 and 110. dB.»

Overall Big Salar The

7 overall system accuracy shall be demonstrated for sev-

eral conditions, within ‘each’ of the following ranges,

“utilizing a "1000 Hz ' sinusoidal acoustic plane wave

oriente "ieag ‘the ‘preferred plane wave axis of the

“inicrophone, ¢ or an equivalent . _— generated in an

i (1 SENEL Montring Sytem

“GAY ‘The SENEL comparator shall be set at

“Several Values of interest, including at least 95,

105, 115 and 125 4B.”

““(B) The dutations of the sirtuscidal acoustic

ee ee 10, 20 and 40

Gly a6 nei a6 She oe ncentc topes

“Git “ech “of the "above durations Shall be set

“Git levels ‘calculated’ to’ producé’ SENEL’s of —

+ \te 5; 41.5 and:+-10 4B relative to the SENEL

Bae: Sage :

‘(2) HNL Monitioring System.

(A) The noise levels for the acoustic inputs

: sel tect free satan Wt 76, 80, 90 and

ee Same

‘(B) The durations of the sinusoidal acousti-

cal signals shall include at least 5, 10, 20 and

‘40 seconds.

above combinations shall be repeated 1, 3, 10,

30 and 100 times per one hour test to obtain

the HNL resulting from such repetition. The

HNL accuracy for. each combination is defined

as the difference between the calculated and

measured value for each test. Tests are not re-

quired for those combinations which produce

a calculated: HNL value outside the range of

45 dB to 95 dB.

$080.4 Field Calibration. The monitoring system shall

include an internal electrical means to electrically

check and maintain calibration without resort to ad-

_~ ditional equipment. Provision shall also be made to en-

able calibration with an external acoustic coupler.

5080.5. Environmental Precautions and Require-

_ ments. (a) The field instrumentation shall be provided

| ~ with suitable protection such that the system perform-

ance specified will not be degraded while the system is

operating within the range of weather conditions en-

countered at airports within the State of California.

-_(b) Humidity. The effect of changes in relative

humidity on sensitivity of field instrumentation shall

be less than 0.5 decibel at any frequency between 22.4

11,200 Hz in the range of 5 to 100 percent

five humidity.

signed and constructed so as to minimize the effects

of vibration resulting from mechanical excitation.

Shock mounting of. the field instrumentation shall be

provided as required. to preclude degradation of system

_(d) Acoustic Noise. The field instrumentation shall

be designed and constructed so as to minimize effects

of vibration resulting from airborne noise, and shall

operate ‘in an: environment of 125 dB SPL—broadband

noise Over a frequency range of 22.4 to 11,200 Hz—

without degradation of system performance.

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APPENDIX C.

"Opinion No. 69.216—February 27, 1970.

SUBJECT: AIRCRAFT-PRODUCED COMMUNITY

NOISE—The federal government has not pre-

empted entire field of regulating aircraft noise;

‘state and local governments may regulate if no

conflict with federal legislation; airport proprietors

exempted from federal regulations.

Requested by: CHARIMAN, ENVIRONMENTAL

* “QUALITY STUDY COUNCIL

Opinion by: THOMAS C. LYNCH, Attorney General

“Nicholas C. Yost, Deputy

The Honorable David L. Baker, Chairman, Environ- -

mental Quality Study Council, State of California, has

requested an analysis of the authority and responsibil-

munity noise problem, with emphasis on the voids and

overlaps that might exist.

ne repens

The Federal Government has occupied a por-

ns ae atthe ee

Meraplemeiegroticet commmmity aciee.

gay 5 State and local governments may legislate in the

Held there is no contct with Federal starts 0

rar we ‘State and local governments which are airport

" proprietors may regulate aircraft-produced community

ee et, a ee wee nee

—43—

4. State and local governments may regulate air-

craft-produced. community noise by land use controls

such as airport siting and zoning without restriction by

- Federal ap verainens.

ANALYSIS

“The “commerce clause” of: the United States Con-

stitution (Art. 1, § 8, cl. 3). vests in Congress the

power to regulate interstate and foreign commerce. The

“supremacy clause” (Art. VI, par, 2) provides that the

Constitution and laws of the United. States are the su-

preme law of the land.

The federal regulation of aviation represents Con-

gressional exercise of its power to regulate interstate

commerce. See Braniff Airways, Inc. v. Nebraska State

Board of Equalization and Assessment, 347 U.S. 590,

596::(1953);:Rosenhan v. United States, 131 F.2d

932, 935 (10th. Cir. 1942) cert. denied 318 U.S. 790.

The regulations. adopted thereunder, themselves have

the force of law. McClenny vy. United Air Lines, Inc.,

178 F. Supp. 372, 375 (W.D. Mo. 1959).

- When the Federal Government has legislated in a

field of interstate commerce, to what extent may states

and localities act? They may not do so if the subject

is one réquifting ‘national uniformity. (Morgan v. Vir-

ginia, 328 U.S.°373, 386. (1945); Southern Pacific Co.

vi. Arizona, 325. US.,.761, . 767, 783-784 (1945);

South Carolina Highway Dept. vy. Barnwell Bros., 303

US. 177, 185-187 (1938).) When commerce is na-

tional in. character, requiring a uniform system, Con-

i lnc gy alg gate

23355

i ha fay sped he ld (aly

snl

Washington, 302:U.S. 1, 9-14 (1937)), or there is no

conflict with the federal legislation (California v. Zook

336 U.S. 725, 733 (1949); Kelly v. Washington, supra,

pp. 4-8), and if the state law. does. not discriminate

against, substantially obstruct or unreasonably burden

interstate: commerce (Dean Milk Co. v. Madison, 340

U.S. 349, 354 (1951); Parker v. Brown, 317 U.S. 341,

360. (1943); California v. Thompson, 313 US. 109,

114 (1941); Buck v. Kuykendall, 267 U.S. 307, 315

( 1924), With the qualifications stated above, the fact

that the Federal Government has acted in a field of

interstate commerce does not prevent concurrent action

by the states. Huron Portland Cement Co. v. Detroit,

362 U.S. 440, 442 (1960); Southern Pacific Co. v. Ari-

zona, supra, at 766-767; Cooley v. Board of Wardens,

53 U.S, 298, 318-320 (1851); see 24° Ops. Cal. Atty.

Gen. 129. -

The essential question is the degree to which federal

legislation under the commerce clause has precluded

state and local governments from acting. 3

To what extent has the Federal Government. acted?

The Federal Airport Act of 1946 granted apthority

to the Federal Government, through the Federal Avia-

_ tion Agency (FAA), to control the development of

- airports. 49 U.S.C. §§ 1101-1120; see 49 U.S.C. §

1655(c) regarding transfer of functions. As amended

to date the act directs the Federal Aviation Adminis-

‘trator. to formulate and annually revise a National Air-

. port Plan which is to specify in terms of general loca-

- tion ‘and type of development, projects the Administra-

me cet considers necessary to provide a — of —

~-50—

a nationwide system: of public airports in conformity

with the National Plan. 49 U.S.C. §:1103; see 49 U.S.C.

§§ 1349-1350. The legislative history refers-to the goal _

of the 1946 act as “a national system of airports inde-

pendently located and planned for the integrated use

of the nation.” U.S.’ Cong., House, II Legislative His-

tory of Federal Airport Act, 1958, at 576.

“The Federal Aviation’ Act of 1958 charges the Fed-

eral Aviation Administrator with the duty to make

plans and policy with respect to development and use

of the navigable airspace and to assign and regulate

its use. 49 U.S.C. §§ 1348, 1353; see 49 U.S.C. 8§

1655(c) and 1657(f) with respect to transfer of func-

tions. The act also declares that the United States pos-

sesses and: exercises “complete and exclusive national

sovereignty in the airspace of the United States, . . .”

49 U.S.C. § 1508. It further recognizes that there ex-

ists on behalf of any United States citizen a “public

right of freedom of transit” through the nation’s navig-

able airspace. 49 U.S.C.-§ 1304; see 49 USC. §

4301(24).

The Federal Aviation Administrator is charged with

the duty of prescribing air traffic rules and regulations

governing the flight of aircraft for the navigation, pro-

tection, and identification of aircraft, the protection of

persons and property on the ground, and for the ef-

ficient utilization of the navigable airspace. 49 U.S.C.

§ 1348(c). This includes rules as to safe altitudes of

flights and rules to’ prevent collision between aircraft

wot sac toscra eterna tne tage itecraneee cram wate

oe Ibid. :

~The ‘Administrator i is further charged with ‘the duty

at ptin ‘rules and regulations to promote safety of

enilnans

| flight. 49. U.S.C. § 1421(a). ‘These include rules con-

_" struction, and performance, appliance standards, in-

spection standards, reserve supplies, maximum hours of

work, and national security and safety in air com-

merce. Ibid.

The Administrator is authorized to issue air carrier

operating certificates and, establish minimum safety

standards for the operation of any carrier to whom

such a certificate has been issued. 49 U.S.C. § 1424.

He also issues airman ceftificates and aircraft certi-

ficates. 49 U.S.C. §§ 1422-1423.

The Administrator is further authorized to acquire,

establish, improve, inspect, classify, and rate air naviga-

tion facilities including airports and weather dissemina-

tion, signaling, radio-directional finding, radio, and

other electrical communication equipment. 49 U.S.C.

$§ 1348(b), 1426; see 49 U.S.C. § 1301(8).

The Administrator may, in consultation with the

Department of Defense, establish airspace zones where

aircraft are restricted or prohibited. 49 U.S.C. § 1522.

is A 1968 amendment to the Federal Aviation Act of

. 1958 directs the Administrator to prescribe and amend

_ Standards for the measurement of aircraft noise and

~ sonic boom and to prescribe and amend rules and

"regulations “to provide for the control and abatement

_ Of aircraft noise and sonic boom, . . .” 49 US.C. §

. 1431(a). The criteria which the Administrator i is man-

_ dated to consider include research, safety, economic

‘reasonableness, and technological practicability. 49

US.C. § 1431(b).

PF tetiaticns ‘have been adopted. pursuant to the Fed-

ul Aviation Act of 1958 governing airspace (14

esis

C.F.R» Pts. 71-77), air traffic and general operating

rules (14-C.F.R. Pts..91-105), air carriers (14 C.F.R.

Pts. 121-137), schools (14 C.F.R. Pts. 141-419), air-

ports. (14°C.F.R.- Pts. 151-167), and navigation facil-

ities. (14 C.F.R. Pt. 171) Specific include regulations

governing designation of federal airways (14 C.F.R.

Pt..71), establishment. of jet routes (14 C.F.R Pt. 75),

objects .affecting navigable :airspace (14 C.F.R. Pt.

77),.general. operating and flight rules (14 C.F.R.

Pt..91) (which include. minimum. safe altitudes [14

C.F.R.§$§ 91.79, 91,119] and operates at airports [14

C.F.R. §§ 91.87-91. 89}), special air traffic rules and

airport traffic patterns (for certain specified airports )

(14 C.F.R. Pt. 93), instrument flight rule altitudes

(14 C.F.R. Pt. 95), and standard instrument approach

procedures (14 CER. Pt. 97).

In November, 1969, the FAA added Part 36, Noise

Standards: Aircraft Type Certification, to the Federal

Aviation Regulations. 34 Fed. Reg. 18355-18379, Nov.

18,, 1969; see 34 Fed. Reg. 19025, Nov. 29, 1969.

These regulations are restricted in their application to

yak we Suge co ogres aaa anda

subsonic aircrafts, but represent the initiation of

the: noise abatement regulatory program authorized by

14 USC. 8 1431. 34 Fed. Reg. 18355, Nov. 18,

1969.”

“The Federal Aviation Act of 1958 by its terms is

not intended to be exclusive: _

bee ee Oe chariyy shal in ary

way. abridge or alter. the remedies now existing at -

common law or by statute, but the provisions of

.. this. chapter are in addition to such remedies.”

‘eis.

_ 2*This provision appears to permit state as well as

_. federal remedies in. addition to the Federal Aviation

The legislative history of the 1968 noise amend-

ments to the Federal Aviation Act makes clear that

Congress did not intend to occupy the field of noise

regulation to the absolute exclusion of state and local

regulation. As stated in the Senate Committee report:

“It is not the intent of the committee in recom-

mending this legislation to effect any change in

the existing apportionment of powers between the

Federal and State and local governments.” S. Rep.

No. 1353, July 1, 1968, U.S. Code Cong. and

- Adm. News (1968), 2688, 2693.

There is no question but that states and localities

may not in their legislative capacities pass legislation

in direct conflict with Federal legislation. The two mu-

nicipal attempts at such legislation have both been in-

validated by the courts. Allegheny Airlines v. Cedar-

hurst, 132 F. Supp. 871 (£.D.N.Y. 1955), aff'd 238

F.2d 812 (2d Cir. 1956); American Airlines, Inc. v.

Hempstead, 272 F. Supp. 226 (E.D.N.Y. 1967), affd.

398 F.2d 369 (2d Cir. 1968), cert. denied 393 US.

1017 (1969).

Cedarhurst, a Long Island community near what

was then called Idlewild Airport (now John F. Ken-

_ ‘nedy) attempted to prohibit by ordinance air flights

_ ‘over the village at less than 1,000 feet. In Allegheny

‘Airlines v. Cedarhurst, supra; 132 F. Supp. 871

- (BD.N.Y. 1955), the Federal District Court invali-

@ated the ordinance on grounds of preemption by pro-

Visions of federal law and regulations. The United

gare ge pamela ras eens

cides

this decision. Allegheny Airlines ::v. Cedarhurst, 238

F.2d 812 (2d: Cir. 1956). In its opinion ‘the court

stated that the federal government had preempted the

field of regulation of aircraft flight. Jd: at 814.

« Hlempstead, another Long’Island town near John F.

Kennedy International “Airport, adopted an’ ordinance

imposing noise limitations on #ircraft overflights. This

too ‘Was invalidated: American Airlines, Inc. v. Hemp-

stead; 272 F. Supp. 226 (E.D.N.Y. 1967). The court

found: that the effect of the orditiance was to deny the

carriers approach, ‘takeoff, and flight rights at levels

granted them bythe Federal Aviation Act of 1958

and the regulations adopted thereunder. There was a

direct conflict between Federal and municipal action.

The Court of Appeal for the Second Circuit affirmed.

American Airlines, Inc. v. Hempstead, 398 F.2d 369

(2d Cir. 1968); cert. denied, 393 U.S. 1017 (1969).

‘In. both Cedarhurst, supra, and Hempstead, supra,

ives wns ins Sect ‘dizéet. conflict: betwoen. the: federal

regulations and the municipal ordinances. Allegheny

ilines ¥.. Cedarhurst, 238 F.2d 812, 814; American

rlines, Inc. v. Hempstead, 398 F:2d°369, 372-375.

5 aite MO. reported holdings pertaining to the con-

ity of local regulations of aircraft noise which

Jo not conflict with federal regulations.

The senate Commitee report thats art ofthe legis

® history of the 1968 noise amendment states that

ir the feld i aendy preempted. by the Fede

L Senate Report No, 1353; supra, at 2693-

h that sumption. In Loma Portal Civic. Cu v.

» Atrlines; Inc. 61 -Cal...2d 582, 591, the

on t stated that it was not persuaded of the soundness

| tiie

of the contention that state action affecting any aspect

of flight operations is precluded by the extensive pat-

tern of federal regulations in this field. The court noted

that states may tax aircraft in interstate commerce

and that state courts may entertain wrongful death

actions against airlines, Id. at 593. The court further

noted that the United States Supreme Court upheld a

city’s application of its antismoke ordinance to a ship

in international commercé¢ although the vessel’s boiler

was built in compliance with federal requirements and

had received federal approval after inspection. Ibid.

The California court quoted the United States. Su-

preme Court to the effect that absent a clear holding

by the latter court that federal jurisdiction has been

made exclusive, state courts will not abdicate their ju-

risdiction. Id. at 591; see Wright, The Law of Airspace,

201-202; Gardner v. County of Allegheny, 114 A.2d

491, 497-498 (S.C. Pa. 1955); Southeastern Avia-

tion, Inc. v. Hurd, 355 $.W.2d 436, 439-440 (S.C.

Tenn. 1962), appeal dismissed, 371 U.S. 21. :

The question whether states or localities may pass

legislation affecting aircraft flight which conflicts with

federal laws and regulations has been answered nega-

tively. The question whether states or localities may

pass. legislation affecting aircraft flight which does not

conflict with federal laws and regulations has not been

answered definitively. The United States Court of Ap-

peals for the Second Circuit in Cedarhurst, supra, and

_ .the California Supreme Court in Loma Portal, supra,

_ have ‘made conflicting statements in dicta. See Ameri-

* an Airlines, Inc. v. Town of Hempstead, 398 F.2d

369, 376 n.4. While we find the reasoning of: the

ia Supreme Court in Loma Portal, supra, per-

sive, the question must ultimately bé answered by

the United States Supreme Court.

ee ihe

hanna ini adcainiatainlints to

Setncil rebunptides-<-tie-poleeesct tin alepent peopeietcr.

Without violation of cither the commerce or the su-

premacy clause, the owner of an airport ‘has the right

as landowner ‘to ‘decide: who is to use his airport and

tinder: what conditions. See Griggs v. Allegheny Coun-

ty, 369: US 84) (1962) (holding ‘county as airport

Becpeletie: ‘liable for damages caused by. overflights).

~The legislative history of the 1968 ‘noise amendments

to the’ Federal Aviation Act and the FAA have ac-

owledge the existensé of ‘this exception to’ federal

_ “Flowever, ‘the proposed legislation will not af.

fect the rights of a State or local public agency,

. a8 the proprietor of an airport, from issuing regula-

_ fioms or establishing requirements as to the per-

> Missile level of noise which can be created by

as proprietors can presently deny the use of their

_ airports to aircraft on the basis of noise consider-

ae ations so Jong as such exclusion is non-discrimina-

~" tory. . . . In dealing with ‘this issue, the Federal

“+ Government ‘should not substitute its judgment for

3 that of the States or elements of local government

5 Who, for the ‘most part, own and operate our Na-

-, Hon’s airports. The Proposed legislation is not de-

signe todo this and will not prevent airport

»s,Ptoprietors from excluding any aircraft on the

se Bey of noise - considerations.” (Senate Report

_. NO, 1353, supra, 2694.)

"The FAA bas comigetlyscknowedged the powers

_ issued with the first proposed rules under the 1968

noise amendment states the following:

“[T]his notice does not promise a federal sub-

stitute for the actions that airport operators, as

proprietors, can take and have traditionally and

responsibly taken to make their airports fit the

particular needs of their locales, such as estab-

lishing the conditions under which their airports

and airport facilities ‘may be used, including the

issuance of specific noise ceilings.” (34 Federal

Registér 457, Jan. 11, 1969.)

In adopting the aircraft type certification noise stand-

ards the FAA notice ’stated:

“Relation to responsibility of airport proprie-

tors. Compliance with Part 36 is not to be con-

strued as a Federal determination that the aircraft

is ‘acceptable,’ from a noise standpoint, in partic-

ular airport environments. Responsibility for de-

termining’ the permissible noise levels for aircraft

using an airport remains with the proprietor of

that airport. The noise limits specified in Part 36

are the technologically practicable and economi-

cally reasonable limits of aircraft noise reduction

technology at the time of type certification and

are not intended to substitute federally determined

noise levels for those more restrictive limits de-

termined to be necessary by individual airport

proprietors in response to the locally determined

- desire for quiet and the locally determined need

_. .. for the benefits or air commerce. This limitation

__ *_.. on the scope of Part 36 is required for consisten-

__..... ey with the responsibilities placed upon the: air-

sport proprietor by the U.S. Supreme Court in

iia.

» sGriggs.v.: Allegheny: County, 369 U.S. 84 (1962).

purposes.” 34 Federal Register 18355-18356,

nich Own or lease airports imposing noise restrictions

- 59

. jm their proprietary rather than legislative capacity.

- (Regarding FAA approved methods, see Hoover and

Cochran, FAA, Airport Design and Operation for

Minimum Noise Exposure (1969), 12-13; Sperry,

Powers, and Oleson, FAA, The Federal Aviation Ad-

ministration Aircraft Noise Abatement Program

(1968), 21-23.)

“In 1969 the State of California enacted legislation

directed at airport owners in their proprietary capacity

which will establish noise limits by state regulation

for each airport in the state. These regulations must

be adopted by April, 1970, and will be effective, un-

less repealed by the Legislature, in January, 1971.

Public Util. Code § 21669, et seq.; Stats. 1969, ch.

1585, p. 3222. The effect will be to establish noise

limits around California’s airports without conflict

with the Commerce Clause.

Community noise may also be regulated through land

usecontrols by creating a buffer area between the

runway and the community. This may be done by air-

port siting, by condemning more land for the airport

(so as to create an airport owned buffer), or by zon-

ing (so as to limit usage of buffer land to uses compat-

ible wiht aircraft noise).

None of these methods of reducing aircraft pro-

duced community noise raises any question of federal

preemption. See: 34 Fed. Reg. 457, January 11, 1969.

Federal policy is to encourage local zoning. See 49

U.S.C. §§ 1108(b), 1110(3), and 1110(4). The Fed-

eral Housing Act of 1954 makes funds available

through the Housing and Home Finance Agency for

-. community planning including airports. 40 U.S.C.

_- § 461. The Federal Airport Act of 1946 provides for

—6)—

federal grants .in aid RAE within . mae bound-

aries: 492 USO.§ 110batseg:::

‘Ce ie ibabtok "tigh depicting

not 'a matter of specific tegulation by any governmental

entity: ‘Federal ‘site | ‘approval’ is contingent primarily

upon ‘questions of ‘safety. See 49 U.S.C. $$ 1108,

1110, 1349, 1350. The approval of California’s De-

partment of Aeronautics of a site application is made

mandatory «upon ‘compliance with safety criteria and

the - Department's rules' and «regulations. Pub. Util.

Code ° § 21666; see 32 Ops. Cal. Atty. Gen. 235.

ulations. Title 4, Calif. Admin. Code § 3535 et seq.;

Calif. Admin. Register 69, No. 39, § 3525 et seq.

further legislation. See Pub. Util. Code §§ 21243,

21244, 21666. A locality by its zoning could also ex-

clude an. airport, Calif, Admin. Register 69, No. 39,

§§.3531(a)(1),.3558; see Govt. Code § 26027.

Community noise may be regulated by the airport

proptietor’s acquiring more land. A larger airport in-

‘creases the distance between the noise source and the

community. ana meeneniany Goat i Thies forinfiction-

Sa:ndibcaid Wi’ Chay lay! tdadis ind tationce within. its

Sinkae’ ‘all such local, police, sanitary or other regula:

‘tions.as are not in conflict with general laws. Cal.

‘Const. Art. XI, $11. This section permits the adoption

‘of zoning’ regulations not in conflict with state law.

lohnston v. Bd. of Sup. of Marin County, 31 Cal. 2d

66. The state has legislated in the field of airport

zoning, permitting a city or county to regulate the struc-

tures of buildings near airports. Govt. Code § 50485

et seq.; see Morse v. San Luis Obispo County, 247

Cal. App. 2d 600, rehear. den., hear. den.; Sneed v.

County of Riverside, 218 Cal. App. 2d 205; Com-

* ment, Airport Approach Zoning, 12 U.C.L.A. Law

~ Rev. 1451. The Airport’ Approaches Zoning Law by

-- its own terms is not intended to preempt local regula-

~ tion. Govt. Code § 50485.14. A city, county, or airport

- district may acquire an air easement above the surface

_ of property by eminent domain. Code of Civ. Proc.

§§ 1239.2-1239.4. The State Department of Aeronaut-

ics has statewide jurisdiction to approve or disapprove

i the erection of any structure within the state over 500

TPs eee

Vis

feet high. Pub. Util. Code §§ 21656-21657. Unless

permitted by the department, structures constituting

_ hazards to air navigation within one mile of airports

- are barred. Pub. Util. Code § 21659. The Depart-

ment of Aeronautics also makes financial grants to

public agencies owning and operating airports contin-

_ gent upon appropriate airspace control and height re-

strictions. Pub. Util. Code § 21688.

The state may legislate further in the field of zoning

around airports, and localities may act to the ex-

tent the state has not acted, and, if the state has acted,

to the extent the state reserved to localities the power

ee to take further action.

The answer to the request for analysis by the En-

a vironmental Quality Study Council has necessarily been

general since the request was general. Morg,,concrete

answers must await specific fact situations.

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.