Town-Village Aircraft Safety & Noise Abatement Committee

TOWN-VILLAGE AIRCRAFT SAFETY & NOISE ABATEMENT COMMITTEE One Washington Street, Hempstead, New York 11550 (516) 489-5000 x3296 – TVASNAC@tohmail.org Meeting Minutes Tuesday, September 14, 2021 In Attendance Carl Baessler, Village of Atlantic Beach Dan Plaut, Village of Cedarhurst Andrew Weiss, Village of Floral Park Laurence Quinn, Village of Garden City Akiva Lubin, Village of Lawrence (called in) Richard Pallisco, Village of New Hyde Park James Vilardi, Executive Director James Vilardi asked Carol Renta to take attendance, and the meeting was called to order. James Vilardi asked if everyone read the July and August minutes and if there were any changes. Carl Baessler made the motion to approve these minutes, and Andrew Weiss second the motion. Richard Pallisco of New Hyde Park attended the meeting, and introduced himself as the new representative from the Village of New Hyde Park, replacing Kurt Langjahr who had served in this capacity for many years. Members welcomed Richard. James Vilardi introduced the committee to Barbara Lichman, who was present via conference call. Barbara is an attorney located in California who is experienced with issues regarding the FAA as well as lawsuits filed against the FAA. Barbara spoke about her experience in going up against the FAA and explained that lawsuits can only be brought against the FAA for what they have not done, not for what they have done wrong. The courts traditionally do not like lawsuits criticizing the way the FAA does something, but they do not mind lawsuits that challenge the FAA’s refusal to comply with the law. James Vilardi asked those on the committee who have been here for years if they are aware if the FAA ever did an environmental review and a proper due diligence prior to creating flight paths around JFK and LaGuardia airports.  Laurence Quinn believes categorically that the FAA decided they were not going to look at environmental effects in terms of pollution. The FAA did do some type of study on noise, but Laurence thinks they said they were not required to do anything in terms of nitrate pollution and some of the other particulates. James Vilardi asked Barbara if we can challenge the FAA on the adequacy of their noise/pollution studies.  Barbara stated that if we start challenging them on the adequacy of what they have done, then we will get into the court “blind spot.” Congress has given the FAA complete preemptive authority to make certain decisions based on safety and efficiency of air travel. Every time the FAA makes a determination under the National Environmental Policy Act as a result of some environmental review, as long as they do some level of investigation, the courts tend to defer to their judgement. 1   Barbara informed the committee of a famous court case, “Chevron vs. National Resources Defense Council,” which basically gives deference of the court to any federal agency for decisions made within their technological scope. If the FAA is making decisions that are faulty under their own mandate, they usually get deference when they defend themselves. There are some justices on the court that do disagree with this, one in particular. However, Barbara feels that is not enough to bring the whole court around. Andrew Weiss asked Barbara to corroborate his understanding that if we want to challenge the FAA, whether administratively or in the courts, the challenges have to be procedural not substantive.  Barbara responded by stating that challenges can be substantive if the FAA has not done anything substantively. For example, if they omitted to do any kind air quality analysis whatsoever, just omitted it, that would be a substantive challenge that we could bring, but we cannot bring a substantive challenge in the sense that they did not do an adequate air quality analysis. James Vilardi asked Barbara if we want to suggest expanding the flight paths to go further out over the water as opposed to flying over neighborhoods, could she help us communicate with the FAA since so far the FAA will not meet with us, talk to us, or send a representative to one of our meetings.  Barbara pointed out that the FAA typically pays attention to arms of a public entity. TVASNAC’s request for an FAA representative to attend a meeting is reasonable based on her experience in Newport Beach, CA, and she was surprised the request was denied. She went on to explain that they had a similar problem there where they were experiencing high volume of flight traffic over neighborhoods, and they were able to get the FAA to redirect the planes to fly over the water rather than over the homes. This worked because the FAA was not shifting the planes from one neighborhood to another; there were no disadvantages to moving the flight path from over neighborhoods to over water. Andrew Weiss relayed to Barbara that we have been told the problem with the NYC metropolitan air space, besides it being incredibly congested with six major airports utilizing the same air space, is that we also have restricted air space over the water between Boston and DC for our military.  Barbara confirmed that this may confuse the issue, because the FAA does not like to do anything that conflicts with flight paths of another airport or the military. However, she has staff consultants who formerly worked at the FAA and do the analyses that the FAA would do, and often point out grievous errors in the FAA’s analyses because they are self-serving. Our situation in the Town of Hempstead may or may not present a conflict, we would have to see what the analyses show. Andrew Weiss commented that the military air space should be obvious and easy to determine.  Barbara responded that this may be true except for the extent of it - it is possible the FAA may be over exaggerating the amount of space that is needed for restricted airspace. Akiva Lubin reiterated that the FAA is not even responding to us. They act like we do not even exist.  Barbara advised that the most important resource to help us with the FAA is the Chairman of the House of Representatives Aviation Subcommittee of the Committee on Transportation. We should find out who that person is, where they are located, and if possible, request a meeting. Secondly, we should reach out to our Congressmen/women and Senators, which the committee is already doing. James Vilardi asked Barbara if it matters that the FAA is not following the standard for generally accepted decibel levels, which they routinely violate on landing.  Barbara stated that landing is a different story which depends on the aircraft, how it lands and how much juice it needs to land. It doesn’t really matter to the FAA that much, they only care about safety and efficiency. What they do care about is if they fail to mitigate those impacts after they stated in their environmental review they would do so. If they do an environmental review which indicates the planes will make a lot of noise and state the noise will be mitigated by doing X, Y, Z and then they do not do X, Y, Z, that would be challengeable. 2 Laurence Quinn asked Barbara what chance we have in pushing sensitivity to the 55 decibel level vs the 65 decibel level for actionable noise.  Barbara responded, none. Andrew Weiss explained to Barbara that we are in the midst of a Part 150 Study for the last 6-7 years that is still ongoing and asked Barbara what the theory is behind a Part 150 Study.  Barbara replied that first of all, waiting 6-7 years for the Part 150 Study to be complete is grotesque. The Part 150 Study could show there is noise impact in areas that the FAA has not yet anticipated in any of their review, which they would then have to take into consideration with any type of project they undertake; expanding the airport, NextGen, etc. Second, it is supposed to help the FAA to buy houses near the runway. It helps finance, purchase property which the FAA wants, because they want empty space within five miles of an airport. That’s the theory behind Part 150. If someone wants to sell, and the Part 150 determines their neighborhood is impacted, they could sell. Andrew Weiss commented that the FAA talks about noise mitigation and noise contour maps, but there is no substance behind any of it. They hold quarterly meetings, the FAA attends, and the answer is always that they are studying that but there is nothing behind it.  Barbara advised to get someone influential to say to the FAA, “Time is up.”  James Vilardi asked if can we do that with a lawsuit, and Barbara said, “No.” James Vilardi further went on to ask Barbara, since the FAA has taken seven years to do the study and not finished yet, does that indicate they have neglected to provide the public with the proper backup.  Barbara responded that it does, but she questions why are they doing a Part 150 - As a result of a project that they claim the Part 150 is mitigation for or is there another reason? Why are they doing it?  Laurence Quinn explained that the committee initiated the Part 150 request and were able to get then Governor Cuomo and New Jersey to go in and force the issue with the FAA to conduct the study, and the FAA said they did not think they needed one.  Barbara commented that then that is why then the FAA is dragging their feet, because if they complete the study, it will establish noise contours that are more extreme than they had anticipated or that they want us to anticipate. Again, it comes back to getting an influential arm to say to the FAA, “You know what, you guys want a budget next year? Finish this in six months.” James Vilardi asked Barbara if the fact the FAA is not completing the study constitutes a violation of their obligation to complete a study before they set policy.  Barbara explained it is not a violation because they do not have an obligation to do a Part 150 Study. The committee requested it, they said yes, but it is not the same as when a federal law mandates environment review be completed before the implementation of a federal project.  Andrew Weiss commented that he was under the impression that the Part 150 was statutory.  Barbara agreed that it is, but doing it is not - It is provided for in the statute, but requiring that they be done is not statutory. James Vilardi asked Barbara if aside from talking to powerful members of Congress, what she recommends.  Barbara commented that without seeing our paperwork, she does not know where lapses may have occurred. While she is not fully aware of our situation, she can say that to begin with it’s cheaper to talk than to pursue. She suggested making comments in writing on these matters that we are discussing including that the Part 150 Study is taking too long to complete. Andrew Weiss confirmed the committee has not written a letter concerning the length of time the Part 150 Study is taking. The closest we have come is bringing this up verbally at the Roundtable.  Barbara went on to say that the Part 150 is mandated by statute, and there is an official that is in charge of that, so it’s important for the committee to exhaust its administrative remedy first. That 3  is to say, alert the agency in writing to the problem with its performance - How it’s violated the statue, if it has violated. Exhaust our administrative remedy in trying to get the agency to act without being sued. If they don’t, then the courts will enter. This is a critical predicate to bringing a lawsuit. The committee thanked Barbara for her time, and she hung up. Laurence Quinn commented that he would like the committee to try and find paperwork to see what the timetable was originally for the Part 150 (he thinks it was like three years or so). James Vilardi surmised after speaking with Barbara that a lawsuit is out and asked if the committee was in agreement that the phone call with Barbara was informative. The committee was in agreement. Carl Baessler commented that the committee’s first step should be to see if we can nail the FAA down on when the Part 150 Study will be completed, and James Vilardi asked that everyone look to see if they have any information/documentation on when/how the study was initiated; dates, etc. James Vilardi asked Richard Pallisco what Quiet Skies is doing about the issue.  Richard advised that Quiet Skies wants to hire lawyers – they want to get planes to fly higher over the Town of North Hempstead.  James asked if Quiet Skies has made this request in writing to the FAA, to which Richard responded they have. Andrew Weiss reminded the committee that Tom Suozzi was very involved with the FAA and had a deal with the FAA for the planes to fly higher, but then the FAA reneged. James Vilardi suggesting putting together a letter to the FAA asking for the schedule to finish the Part 150 Study and making three public policy recommendations; glide slope, decibels, flying over water. James also stated he would draft a second letter to the FAA in response to them denying the committee’s request to send a representative to one of our meetings; he will set the tone then circulate the letter to everyone to correct/add facts and figures. We will copy all the federal representatives and try to get Tom Suozzi to join us at our next meeting. Before ending the meeting, James Vilardi called Tom Curry of Kathleen Rice office and explained to Tom that we have hit a brick wall with FAA. James asked Tom if Congresswoman Rice sent the letter to FAA Administrator requesting he send a representative to a TVASNAC meeting. Tom apologized saying the letter did not go out as they got side tracked with infrastructure issues, but that he would send it out this week. James filled Tom in on the two follow up letters the committee would be sending to the FAA and asked if Congresswoman Rice would entertain filing legislation to limit decibels as it would be a big help to residents. Tom promised to speak with their legislative assistant about this matter. James also asked Tom, since the Part 150 Study has no end in sight, if we could hold the FAA’s feet to the fire to get it done - Tom said he would work on this. When James asked Tom if it would be possible to get him and his legislative director at a TVASNAC meeting in person or on Zoom to see what legislation is possible, Tom responded that they would be at the next meeting on October 25th. James Vilardi also called and left a voicemail for Justin Connor of Congressman Tom Suozzi’s office to call him back. Once Justin calls back, James will address the same issues as were discussed with Tom Curry. James Vilardi thanked the committee for their time this evening. Motion was made to adjourn the meeting by Richard Pallisco and second by Dan Plaut. Prepared by: Carol Renta Secretary, TVASNAC 4