# Amicus Curiae Brief — Burbank v. Lockheed Air Terminal, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0140%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 624 ## Text 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 10 ~ 30 “413 17 "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 29 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 vs 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 2 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). g 5 ag ; i i i + { 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 ». 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 as 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.] oo “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 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). VI 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 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 (c) Every county board of supervisors shall, as of 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, (c) Penalties assessed for the violation of the noise 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 (c) Time of occurrence during the day (daytime, 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 ‘édiccahs wus authority to control the aircraft utilization; except where the air- craft is leased, the lessee is the operator. © (i) Air Carrier: Air carrier is any aircraft operating _ 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 ee 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, rh . 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; (c) Industrial 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 ee 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. (c) Make a suitable series of CNEL trial measure- 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. eS 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 f) SNOILIGOd ONIYOLINOW IZA31 SUNSOdXS BSION LN3ZAZ SIONIS ‘Z BYuNDISA ("OE @1nByy es) sayy jOD1GMENY G*E 04 4093 C00'01 = * PLIW [92 HOON O° ft 4 4995 COST = 1p jooyol = 4B may 4481) 4 Supuoy = 7 Buypun) 40 440040) : JO 9U1]10jV0> ee ome $U0}j0207 auoydoss yw O * {JOP P9405: @)qusn e20ysns Aomuns yo Bujyuus6eq s@ pamequy i: OSt 41d | " el x, an 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 i mmone + Y) 7 e ANN wae - ee +: t } i 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 ul wed E “ tii tpi : ae eT i ai 4 Phere LE Ns F Lt 3 Ex/13 4 ] pavali Hh iy ay q if 1 i | tI } 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. er (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 Cc 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 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. (C) Sample and Hold (Optional). This cir- 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 * ” ©§G45"Notse” Level Subsystem. The HNL noise 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 ‘icine “"(©) Sample and Hold. (Optional). Similar. ‘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 wt 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 a ee Same ‘(B) The durations of the sinusoidal acousti- cal signals shall include at least 5, 10, 20 and ‘40 seconds. (C) Each of the events defined by the 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. ae (c) Vibration.. The field instrumentation ‘shall be de- 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. W3LSAS (73N3S) 33A37 BUNSOdX3 BSION LN3ZAZB SIONIS WVOIdAL “y SUNDISA te Vins Bah? Domiwwd >? a eeael ben) ow ioe tae ‘Dota Dam v wOlvNvend> O10MS sur Pl “VON whe nds van line - : (en 00? serena science 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.” » AD USC. § 1506. © ‘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- Missile level of noise which can be created by >, ©, @ineraft. using the airport.. Airport owners. acting 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 oe _ 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, ~ t 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 ae —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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0140%3A06. Public record. Not legal advice.