Compilation of Noise Programs in Areas Outside DNL 65 (2009)

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There are a number of existing and emerging reasons that air- port operators may need or desire to take action to address noise outside the DNL 65 contour, including the following: • Because of complaints from areas outside DNL 65, air- ports have identified reasonable and cost-effective pro- grams to reduce noise impacts at lower noise levels; this is especially true for operational noise abatement flight procedures, such as Continuous Descent Arrivals (CDA) [The Continuous Descent Arrival, also referred to as the Continuous Descent Approach, has proven to be highly advantageous over conventional “dive-and-drive” arrival and approach procedures. The environmental and eco- nomic benefits of CDA were demonstrated in flight tests at Louisville International Airport in 2002 and 2004; there are significant reductions in noise (on the order of 6 to 8 dB for each event) owing to reductions in thrust and a higher average altitude (Clarke 2006)], and Noise Abatement Departure Profiles (NADPs) [FAA Advisory Circular (AC) 91-53A, Noise Abatement Departure Pro- files (1993), identifies two departure profiles—the close- in departure profile and the distant departure profile—to be used by air carrier operators. The AC outlines accept- able criteria for speed, thrust settings, and airplane con- figurations used in connection with each NADP. These NADPs can then be combined with preferential runway use selections and flight path techniques to minimize, to the greatest extent possible, the noise impacts], as well as some advanced navigation procedures such as Required Navigation Procedures [Area Navigation (RNAV) enables aircraft to fly on any desired flight path within the coverage of ground- or space-based naviga- tion aids, within the limits of the capability of the self- contained systems, or a combination of both capabilities. As such, RNAV aircraft have better access and flexi- bility for point-to-point operations. RNP is RNAV with the addition of an onboard performance monitoring and alerting capability (FAA 2008)]. • Airports have adopted local land use compatibility guidelines that apply to lower impact levels: Several jurisdictions have used DNL 60 dB in defining planning objectives or goals (Coffman Associates 2000). • Airports have made commitments in support of airport capacity projects; for example, at Ft. Lauderdale, the FAA agreed in its Final Environmental Impact Statement (EIS) on a runway extension to allow Broward County to follow neighborhood boundaries to mitigate for noise impact. This block-rounding will double the number of homes eligible for insulation or purchase assurance from just more than 1,000 to more than 2,000 (“ATA Says Block-Rounding at Bob Hope, Ft. Lauderdale Int’l Has Gone Too Far” 2008). • The existing noise compatibility program has matured and substantial complaints exist in areas outside the DNL 65 contour: A recent study conducted by the FAA’s Cen- ter of Excellence for aviation noise and emissions research, PARTNER (Partnership for AiR Transporta- tion Noise and Emission Reduction), concluded that sig- nificant complaints come from areas beyond DNL 65 (Li 2007). The staff at airports that respond to aircraft noise complaints finds that an increasing portion of their time is spent addressing concerns from residents outside the DNL 65. • Federal policy is moving outside DNL 65: The Joint Planning and Development Office has determined that noise must be aggressively addressed to meet the capac- ity requirements of the Next Generation Air Transporta- tion System (NextGen). Recently, the FAA has identified targets for noise reduction, including a near-term target to maintain its current 4% annual reduction in the num- ber of people exposed to DNL 65 or greater, and com- mensurate or greater reduction of the number of people exposed to DNL 55–65; as well as a long-term target, first bringing DNL 65 primarily within airport boundary, and later DNL 55 primarily within airport boundary (FAA 2008). • Airports are required by court order: Two recent cases [Naples v. FAA (2005) and State of Minnesota et al. v. MAC (2007)] have determined that airports must address noise impacts beyond the current DNL 65 land use com- patibility guidelines. Review of the actions leading to adoption of DNL 65 land use compatibility guideline indicates that it was intended to be adjusted as industry needs changed (in particular, as technol- ogy improvements resulted in quieter aircraft). Federal noise policy has always recognized that land use compatibility deci- sions should be made at the local level. In addition, adoption of the DNL 65 guideline in the 1970s reflected a compromise between what was environmentally desirable and what was economically and technologically feasible at the time. This chapter addresses the existing and proposed applicable laws, policies, and regulations, plus relevant court decisions CHAPTER TWO REGULATIONS, POLICIES, AND COURT CASES GOVERNING ISSUES OF NOISE OUTSIDE DNL 65 6

7(published and as-available). The chapter includes federal, state, and local requirements, as appropriate. Table 1 summa- rizes the relevant regulations and policies that have evolved to the current application of DNL 65 as a threshold of normally compatible residential land use. REGULATIONS ADDRESSING NOISE OUTSIDE DNL 65 Three entities share responsibility for the regulation of airports and aircraft: (1) the FAA, (2) the airport proprietor, and (3) the state and local government(s) with land use jurisdiction over the airport property. Often, the airport proprietor also is the local government with land use authority; however, there are several examples of states, intergovernmental agencies, and major metropolitan cities operating airports on property under the jurisdiction of one or more governmental bodies. Congress and the FAA have developed a program primar- ily focused on allocating money to airports and local govern- ments to address noise. In 1979, Congress adopted the Avia- tion Safety and Noise Act, which, in addition to its financial components, required the FAA to “establish a single system of measuring noise . . . establish a single system for deter- mining the exposure of individuals to noise resulting from air- port operations . . . and identify land uses normally compati- ble with various exposures of individuals to noise” (49 U.S.C. § 47502). The FAA addressed these requirements in Federal Avia- tion Regulation (FAR) Part 150 as follows: • As the unit of measurement, the FAA selected the A- weighted sound level, referred to as dB(A) or often sim- ply as dB, which measures sound in the manner most TABLE 1 DNL 65 TIMELINE Date Event Result 1972 1973 1974 1974 1976 1979 1984 1990 2004 AIP = Airport Improvement Program. Congress passed Noise Control Act EPA published Impact Characterization of Noise Including Implications of Identify- ing and Achieving Levels of Cumulative Noise Exposure, PB224408, July 1973 EPA published Information on Levels of Environmental Noise Requisite to Pro- tect Public Health and Welfare with an Adequate Margin of Safety, March 1974 Maryland passed Environmental Noise Act of 1974 FAA adopted Aviation Noise Policy Congress passed Airport Safety and Noise Act (ASNA) FAA adopted FAR Part 150 Congress passed Airport Noise and Capacity Act Congress passed Vision 100 Required EPA Administrator to conduct a study of the “ . . . implications of iden- tifying and achieving levels of cumulative noise exposure around airports . . . ” and to “publish . . . information on the levels of environmental noise the attainment and maintenance of which in defined areas under various conditions are requisite to protect the public health and welfare with an adequate margin of safety.” Identified DNL as the measure of cumulative noise, and DNL 60 dB as the threshold of compatibility; below this level, there should be limited annoyance and minimal complaints about aircraft noise. Recommended that Day–Night Level not exceed 55 dB Set DNL 65 dB as its official noise limit for residential land use effective 1 July 1975, and DNL 60 dB when the “U.S. Fleet Noise Level is reduced 5 dB below 1 July 1975 level.” Clarified roles of federal government, airport operator, and local government and identified a goal of “confining severe aircraft noise exposure levels around U.S. airports to the areas included within the airport boundary or over which the airport has a legal interest, and of reducing substantially the num- ber and extent of areas receiving noise exposure levels that interfere with human activity.” Required the FAA to “establish a single system of measuring noise . . . establish a single system for determining the exposure of individuals to noise resulting from airport operations . . . and identify land uses normally compatible with various exposures of individuals to noise.” Identified noise levels below DNL 65 dB as guideline for normally compatible with residential uses in Appendix A. Directed the FAA to create two new regulations that: (1) required a phase out, by January 1, 2000 (with limited exceptions) of Part 36 Stage 2 civil subsonic turbojet aircraft with maximum gross takeoff weights over 75,000 pounds, and (2) established stringent requirements for airport proprietors to follow prior to adopting new restrictions on operations of Stage 2 or 3 aircraft. Prohibited FAA from issuing Part 150 approval of AIP funding for land use compatibility actions outside the DNL 65 noise contour from 2004 through 2007. Also added Section 160, which allows local jurisdictions to undertake noise compatibility planning.

consistent with human hearing [by reducing the contri- bution of lower and very high frequencies to the total level) [14 C.F.R. Pt 150, App A § A150.3(a)]. • For purposes of evaluating noise exposure, the FAA selected the Day–Night Average Sound Level (DNL), the 24-hour average sound level, in decibels, for the period from midnight to midnight, obtained after the addition of ten decibels to sound levels for the periods between midnight and 7 a.m., and between 10 p.m. and mid- night, local time. The symbol for DNL is Ldn [14 C.F.R. Pt 150, App A § A150.3(b)]. • With respect to land use compatibility, the FAA pub- lished a table in its regulations (14 C.F.R. Part 150, Appendix A), which prescribes whether a variety of dif- ferent land use categories are compatible with aircraft operations for a particular range of noise levels (14 C.F.R. Pt 150, App A § Table 1). That table identifies DNL 65 dB as the threshold of compatibility for most residential land uses, and where measures to achieve outdoor to indoor Noise Level Reduction of at least 25 dB and 30 dB should be incorporated into building codes and be considered in individual approvals. Each of these requirements has been the subject of confu- sion and contention. For example, there have been complaints that dB(A) fails to account for low frequency noise (experi- enced as vibration or rumble) often associated with jet opera- tions. The primary complaint with DNL is that it does not reflect the sound of individual aircraft operations, which may be dramatically louder than the steady rate of sound captured by DNL. In addition, although some contend that the DNL 65 dB level represents a scientifically and statistically accurate predictor of community annoyance, others assert that it is a poor predictor of how a particular community or an individual responds to aircraft noise. In addition to establishing these noise measurement tools, FAR Part 150 established a program for airports to develop (1) a “noise exposure map” or NEM that models existing and future noise exposure and identifies the areas of incompatible land use, and (2) a “noise compatibility program” or NCP that identifies, examines, and recommends to the FAA alternative means to mitigate and abate noise [49 U.S.C §§ 47503 (noise exposure maps) and 47504 (noise compatibility programs); 14 C.F.R. Pt. 150]. The NCP often is a principal component of an airport’s overall noise program since the NCP (1) is intended to be com- prehensive, both in its evaluation of noise issues and potential solutions, (2) presents an opportunity for community involve- ment and input, and (3) provides an indication of which noise control measures are eligible for federal funding. Part 150 identifies certain measures that should be consid- ered in preparing the noise compatibility program; these are summarized in Table 2. POLICIES ADDRESSING NOISE OUTSIDE DNL 65 Aircraft noise and land use compatibility has long been recog- nized as an important consideration in planning of communi- ties and the airports that serve these communities (President’s Airport Commission May 1952). The quantitative approach to determining land uses compatible with aircraft noise began with the Noise Control Act of 1972. It required the U.S. EPA Administrator to conduct a study of the “ . . . implications of identifying and achieving levels of cumulative noise exposure around airports . . . ” (U.S. EPA 1973). This requirement resulted in the identification of DNL as the measure of cumu- lative noise, and DNL 60 dB as the threshold of compatibility; 8 TABLE 2 NOISE COMPATIBILITY PROGRAM MEASURES Operational Measures Land Use Measures Program Management Measures • Implementing a preferential runway system to direct air traffic over less-populated areas • Using flight procedures, including noise abatement approach and departure procedures • Identifying flight tracks to reduce noise and/or direct air traffic over less-populated areas • Adopting mandatory restrictions based on aircraft noise characteristics, such as curfews • Identifying a particular area of the airport that can be used for aircraft engine runups and constructing a “ground runup enclosure” to reduce noise from runups • Acquiring noise-impacted property • Acquiring “avigation easements” or other interests in property that permit aircraft to fly over the property in exchange for pay- ments or other consideration • Requiring disclosure about the presence of the airport and potential noise impacts in real estate documents • Constructing berms or other noise barriers • Sound insulation of structures used for noise-sensitive land uses (e.g., residences, schools, nursing homes) • Requiring the use of sound insulating building materials in new construction • Imposing zoning or other controls on noise- sensitive land uses in impacted areas, including prohibiting such development or requiring special permits and approvals • Posting signs on the airfield and at other locations at the airport to notify pilots about recommended flight pro- cedures and other measures • Creating a noise office at the airport and/or assigning responsibility for noise issues to a staff member • Creating a dedicated telephone line or other means for neighbors to submit comments/complaints about the air- port and individual aircraft operations • Making flight track information avail- able to the public • Developing educational materials about the airport’s noise program for pilots, other airport users, and commu- nity members

9below this level, there should be limited annoyance and min- imal complaints about aircraft noise. This report (U.S. EPA 1973) provides extensive discussion of why DNL was chosen and why DNL 60 dB was identified as the appropriate limit of exposure. The discussion focuses on effects on people and communities, including hearing, interference with speech, sleep and learning/thinking, annoyance, and complaints, and provides some information on nonauditory health effects. The Noise Control Act of 1972 also required the EPA Administrator to publish “ . . . information on the levels of environmental noise the attainment and maintenance of which in defined areas under various conditions are requisite to pro- tect the public health and welfare with an adequate margin of safety.” This requirement resulted in what is now commonly referred to as “The Levels Document,” (U.S. EPA 1974). This report recommended that to provide this protection, the value of the Day–Night Level not exceed 55 dB. Next, the state of Maryland passed the Maryland Envi- ronmental Noise Act of 1974. This legislation included the requirement that the Maryland Department of Transportation (DOT), State Aviation Administration select the noise analy- sis method and exposure limits. In its report Selection of Air- port Noise Analysis Method and Exposure Limits (1975), Maryland set DNL 65 dB as its official noise limit for residen- tial land use effective 1 July 1975, and DNL 60 dB when the “U.S. Fleet Noise Level is reduced 5dB below 1 July 1975 level.” In discussing the selection of the compatibility DNL level, the report noted that neither Congress nor the EPA intended to set limits for states and local jurisdictions. “This is a decision that the Noise Control Act clearly leaves to the states and localities themselves.” Maryland’s policy is notable because it has often been described as one of the models for the later Part 150. Federal policy for civil aviation noise is described in the FAA’s 1976 Aviation Noise Policy, which included a goal of “confining severe aircraft noise exposure levels around U.S. airports to the areas included within the airport boundary or over which the airport has a legal interest, and of reducing sub- stantially the number and extent of areas receiving noise expo- sure levels that interfere with human activity” (FAA 1976). The DOT policy recommended use of the Noise Exposure Forecast (NEF) metric and stated that “severe” aircraft noise occurred at levels of 40 NEF or more, and “significant” aircraft noise occurred at levels of 30 NEF or more. The policy further identified NEF 30 and 40 as equivalent to DNL 65 and 75, respectively. The policy also stated that “the objective of the airport noise plan should be to develop noise reduction tech- niques that to the extent possible would confine the area exposed to this level of noise to the airport boundary or land actually being used or which can reasonably be expected to be used in a way compatible with these noise levels.” In 1984, the FAA adopted the final rule that set out the process for noise compatibility planning around airports— 14 CFR Part 150. In this regulation, the FAA provided a table giving various land uses compatible with Day–Night Average Sound Levels. This table shows that residential uses are con- sidered compatible with levels below DNL 65 dB. Most Part 150 studies result in identification of noise abatement measures (e.g., changes in flight operations, and runway use) and/or noise mitigation measures (commonly sound insulation). Through fiscal year 2006, the FAA has provided more than $7.5B for implementation of these measures (FAA 2008). The FAA also uses DNL and specific computation procedures for its calcula- tion to comply with the National Environmental Policy Act (NEPA) (FAA Orders 1050, 1E and 5050.4B) and for guiding the funding of projects associated with the Airport Improve- ment Program (AIP) (FAA Order 5100.38C). A few states and many local jurisdictions have recom- mended DNL values identical to those of FAA for land use compatibility with aircraft noise, though some also identify dimensions of a “noise sensitivity zone” (Minnesota, Ore- gon). Several jurisdictions have used DNL 60 in defining planning objectives or goals (Coffman Associates 2000). Limits are provided as guidance (Wisconsin, Oregon), and may include zoning ordinances and planning templates (Ore- gon). Other states, notably California and Maryland, have set specific procedures that must be followed in examining air- port or aircraft noise. The Department of Defense also pro- vides similar DNL-based levels for determining Air Installa- tions Compatible Use Zones (1977), which incorporate noise and accident potential in setting the size and shape of the zones. Further, the department will provide funding and guid- ance to a community that wishes to develop a plan for setting in place land use compatibility measures around military air installations, but generally provides no funding to implement those measures (Joint Land Use Study . . . 2002). The FAA has rarely funded land use programs outside DNL 65 in order to focus on airports with significant (as defined by DNL 65) or severe (as defined by DNL 75) noise exposure. As the existing noise mitigation programs mature at airports, and with increasing numbers of operations by quiet aircraft, the proportion of citizens outside the DNL 65 complaining about aircraft noise has increased. Today, noise offices at many airports have an increasing workload to respond to these complaints. Furthermore, in some locations, approval of airport capacity improvements has been contin- gent on the ability to address noise/land use conflicts outside DNL 65. A requirement of Vision 100 (Public Law 108-176) pre- vented the FAA from issuing AIP funding under Part 150 for land use compatibility actions outside the DNL 65 noise con- tour from 2004 through 2007. Although the provision has sunset, there continues to be opposition to funding of such action (“ATA Says Block-Rounding at Bob Hope, Ft. Laud- erdale Int’l Has Gone Too Far” 2008). In some instances, this provision also resulted in FAA’s refusal to adopt noise abate- ment flight procedures if such procedures were directed at

reducing noise outside the DNL 65. In contrast, funding has been allocated to the FAA’s Center of Excellence to develop procedures such as the CDA procedure, which primarily reduces noise in the DNL 45–60 contours for most airports. The FAA has been looking beyond DNL 65 in an attempt to determine what will be necessary for airports to accom- modate the anticipated growth in air travel demand and to produce the next generation air traffic system. The FAA has indicated that a change to address noise outside DNL 65 will be essential to meet both the capacity goals of the Next Gen- eration Air Transportation System and furthering the devel- opment of additional noise stringencies in the international arena. FAA recently articulated its NextGen targets as follows (FAA 2008): • Maintain current target of 4% annual reduction in num- ber of people exposed to DNL 65 or more near-term (compared with 2000 to 2002), and achieve commen- surate or greater reduction of the number of people exposed to DNL 55–65. • Achieve greater reductions mid- and long-term, first bringing DNL 65 primarily within airport boundary, and later DNL 55 primarily within airport boundary. CAPACITY ENHANCEMENT COMMITMENTS ADDRESSING NOISE OUTSIDE DNL 65 In recent years, airports have made commitments in support of airport capacity projects that include mitigation of noise beyond DNL 65. Several examples follow. • The FAA’s 1998 Record of Decision on the Environ- mental Impact Statement for the Minneapolis–St. Paul International Airport (MSP), Dual Track Airport Plan- ning Process: New Runway 17/35 and Airport Layout Plan Approval included a noise mitigation plan that called for sound insulation to DNL 60. The noise miti- gation plan was developed by a Noise Mitigation Com- mittee consisting of mayors of cities surrounding MSP, Northwest Airlines, Metropolitan Council, and the Met- ropolitan Airports Commission (MAC) (FAA 1998). • The Los Angeles World Airports (LAWA) worked in partnership with the Los Angeles International Airport (LAX) Coalition for Economic, Environmental, and Educational Justice (LAX Coalition) to develop a pro- gram to ensure that communities affected by the LAX Master Plan Program also receive benefits as a result of the implementation of the Program. The Community Benefits Agreement details the various proposals of mit- igation and benefit, including increased funding for the aircraft noise mitigation program, end-of-block sound insulation, suspension of avigation easements for noise, and a FAR Part 161 Study for limitations on nighttime departures (Los Angeles World Airports 2008). • At Ft. Lauderdale, the FAA agreed in its Final Environ- mental Impact Statement (EIS) on a runway extension to allow Broward County to follow neighborhood bound- aries to mitigate for noise impact. This block-rounding will double the number of homes eligible for insula- tion or purchase assurance from just over 1,000 to more than 2,000 (“ATA Says Block-Rounding at Bob Hope, Ft. Lauderdale Int’l Has Gone Too Far” 2008). COURT CASES ADDRESSING NOISE OUTSIDE DNL 65 A number of airport environmental cases have challenged noise analyses conducted for studies performed under the NEPA. In most of these cases, the petitioners have argued that the noise analysis was insufficient; however, in all cases, the courts have deferred to FAA’s methodology. These cases include: • Suburban O’Hare Commission v. Dole: In this case, the Suburban O’Hare Commission asked the court to rule on the adequacy of the EIS prepared for O’Hare Inter- national Airport and, in particular, the methodology used to develop noise contours. The parties agreed on the use of DNL 65 as an impact criterion. • Citizens Against Burlington v. Busey: In this case, the petitioners alleged insufficient analysis of noise impacts, and that the noise analysis should include noise outside DNL 65 dB (specifically, sleep disturbance). The court found the FAA’s DNL 65 analysis sufficient. • Communities INC v. Busey: In this case, the petitioners argued that the EIS noise analysis should have addressed noise outside DNL, especially as related to historic prop- erties. The court deferred to the FAA’s use of DNL 65 as the sole impact criterion. • Seattle Community Council Federation v. FAA: In this case, petitioners asked the court to consider whether it was reasonable for the FAA to rely on DNL 65 as the threshold of noise impact for proposed airspace changes. The court deferred to FAA’s discretion in the identifi- cation of DNL 65 as the threshold of impact. • Morongo Band of Mission Indians v. FAA: In this case, the tribe challenged FAA’s use of “urban” noise crite- ria (DNL 65) to evaluate noise levels on the reserva- tion. Again, the court deferred to FAA’s discretion for developing methodology. • City of Bridgeton v. Slater: Challenge to noise method- ology used. “The court also held that the FAA has dis- cretion to adopt the noise methodology it deems appro- priate without judicial second guessing.” In recent years, courts have determined that airports must address noise impacts beyond the current DNL 65 land use compatibility guidelines. Three examples of such decisions follow. • In January 2007, the District Court for Hennepin County, Minnesota, granted summary judgment in favor of the city of Minneapolis and other plaintiffs in litigation 10

11 against the MAC (City of Minneapolis et al. v. Metro- politan Airports Commission 2007). The court found that MAC had failed to comply with its state law obligation to provide noise insulation in the DNL 60–65 dB contour around the MSP as promised in the EIS for the construc- tion of the new Runway 17/35 and other documents. • In June 2005, the U.S. Court of Appeals in Washington, D.C., ruled that a Stage 2 restriction at the Naples Municipal Airport was reasonable and the FAA erred in terminating the city of Naples Airport Authority’s eli- gibility for AIP grants (City of Naples Airport Auth. v. FAA). Importantly for purposes of this discussion, the court found that the Stage 2 restriction was reasonable. In particular, the court found that it was permissible for the Airport Authority to consider the benefits of the restriction to individuals exposed to noise above DNL 60 dB. The court concluded, “The Airport Authority and the City of Naples introduced ample evidence— much of which went unrebutted—demonstrating that the Stage 2 ban was justified.” The court further clari- fied that the FAA’s land use compatibility guidelines do not bind local governments and that the Airport Author- ity properly relied on the threshold established by the local governments with land use jurisdiction. • In Berkeley the Keep Jets Over the Bay Committee v. Board of Port Commissioners of the City of Oakland, the court found that the noise analysis in the city of Oakland’s Environmental Impact Report (EIR) was insufficient because it did not “address adequately the potential disturbance to area residents resulting from increased nighttime air cargo operations, specifically, by omitting significant information about the airport’s potential interference with sleep, including physiologi- cal response and annoyance from increased nighttime overflights. The flaw in the EIR’s noise analysis was its failure to provide, in addition to a community noise equivalent level (CNEL) (a community noise measure) analysis, the most fundamental information about the project’s noise impacts, which specifically included the number of additional nighttime flights that would occur under the project, the frequency of those flights, and their effect on sleep.”