Santa Monica and Logan Airport Health Studies are Targeting the Wrong Problem

Posted on June 14, 2010 by Barbara E. Lichman, Ph.D., J.D.
Much has been made recently of the studies currently underway in areas around Boston Logan and Santa Monica Airports, aimed at determining the health impacts of those airports on surrounding populations.  While the aim is noble, and the information to be gained useful in structuring individual living choices, the result will have little or no impact on the operation of those airports. 

 

The airport health studies are apparently aimed at determining the etiology of increased rates of diseases such as Multiple Sclerosis, heart disease and emphysema within a 5-7 mile radius of the airports. Preliminary findings have determined increased rates of those and other ailments within those areas. So far, so good.

The problem with that approach, however, is two-fold. First, both airports are located within highly urbanized areas which give rise to multiple alternate sources of pollution such as freeways, and, in the case of East Boston, manufacturing and freight warehousing. It is unclear if the airport studies have screened out the effects of such intervening exogenous variables, as well as the impacts of other variables such as genetics, health care, eating habits, etc.

Second, even if their methodologies and conclusions are accurate, there is little to be accomplished with the result of the studies. There are no Federal laws or regulations that would mandate changes in the way airports operate because of the incidence of health problems disclosed by the studies.

A much more fruitful approach would be to devote the time and resources to an assessment of the airports’ “conformity” to their individual State Air Quality Implementation Plans (“SIP”). The Federal Clean Air Act prohibits any department, agency, or instrumentality of the Federal government from engaging in, supporting in any way or providing financial assistance for, licensing or permitting or approving any activity which does not conform to an “Implementation Plan.” 42 U.S.C. section 7506(c)(1). Therefore, if a methodologically sound study can establish that airport’s operations do not conform to the relevant SIP, the Clean Air Act unequivocally prohibits the FAA from further funding the airport. Loss of funding is a significant incentive to the mitigation of health and other impacts which are the fundamental concern of affected populations.

In short, the Boston and Santa Monica Airport health studies are aimed more at the emotions than at the solution. People living in close proximity to airports would be better served by studies like conformity analyses that provide them leverage in the struggle to reduce airport impacts.

 
Tags: , , , , ,

EPA Sets New Standards for Sulfur-Dioxide (SO2) Emissions and Monitoring

Posted on June 8, 2010 by Berne C. Hart
On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA's General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.

SO2 is a highly reactive gas often linked to a number of respiratory system problems. People with asthma, children and the elderly are especially vulnerable to the effects of SO2. The largest sources of SO2 emissions are from fossil fuel combustion at power plants and other industrial facilities. The EPA established standards for SO2 emissions in 1971, and reviewed those standards in 1996, but chose not to revise the standards at that time.

Section 109(a) of the Federal Clean Air Act [CAA] directs the EPA Administrator to promulgate “primary” and “secondary” National Ambient Air Quality Standards [NAAQS] for pollutants for which air quality standards have been issued. One such pollutant is oxides of sulfur, as measured by SO2. Primary standards are aimed at protecting public health. Secondary standards are aimed at protecting public welfare, including the environment. The final rule addresses only SO2 primary standards. The EPA will address SO2 secondary standards as part of a separate review to be completed in 2012.

Under the new rule, allowable SO2 levels will be reduced from the current 140 parts per billion [ppb] averaged over 24 hours to 75 ppb measured hourly. The rule requires that monitors be placed where SO2 emissions impact populated areas, and new monitors must begin operating no later than January 1, 2013. The lower SO2 emissions level is designed to protect against short-term exposures ranging from five minutes to 24 hours because, according to the EPA, the science indicates that short-term exposures are of greatest concern. The EPA estimates that the new standards will prevent from 2,300 to 5,900 premature deaths and 54,000 asthma attacks a year, and reduce health care costs by an estimated $13 billion to $33 billion annually.

The new rule will go into effect 60 days after publication in the Federal Register. States will have until June, 2011 to submit implementation plans to the EPA for approval. The final rule is available at www.epa.gov/air/sulfurdioxide/.
Tags: , , , , , , ,

FAA to Announce Conformity Determination for Philadelphia's CEP Project

Posted on April 26, 2010 by Berne C. Hart

UPDATED May 5, 2010

The Federal Aviation Administration (FAA) announced in the April 23, 2010 Federal Register that it will release the Draft General Conformity Determination for the Preferred Alternative (Alternative A) for the Philadelphia International Airport (PHL) Capacity Enhancement Program (CEP) for public comment on April 27, 2010.  Ordinarily, the public has 30 days to submit comments on the Conformity Determination.  [We will update this BLOG when the comment due date in made public.]

The Preferred Alternative would extend PHL Runways 8/26 and 9R/27L to the east, and add a third parallel east-west runway.  Alternative A would also reconstruct and enlarge the terminal complex, increasing it from 120 to approximately 150 gates.

Federal law prohibits Federal agencies from approving or funding any project that is either: (1) not expressly exempt from the Environmental Protection Agency (EPA) General Conformity Rule; or (2) presumed to conform, until agencies have determined that the proposed project conforms to a State [Air Quality] Implementation Plan (SIP).

If you are concerned about the impacts the CEP Project might have on air quality in the PHL area, the Conformity Determination comment period provides both an opportunity and the means by which to express those concerns to the FAA.  The Final Environmental Impact Statement (FEIS) for the CEP Project is expected to be released in late August, 2010.

ADDED May 5, 2010:

Comments on the General Conformity Determination for the Philadelphia International Airport (PHL) Capacity Enhancement Program must be postmarked to Sue McDonald, Environmental Protection Specialist, Federal Aviation Administration, Harrisburg Airports District Office (ADO), 3905 Hartzdale Drive, Suite 508, Camp Hill, PA  17011 no later than May 27, 2010.  The General Conformity Determination is available at http://www.phl-cep-eis.com.

Tags: , , , ,

Seeking to Overturn the Dismissal of its Challenge to the East Coast Airspace Redesign, Delaware County, Pennsylvania, Files Petition for Certiorari to the U. S. Supreme Court

Posted on November 19, 2009 by Barbara E. Lichman, Ph.D., J.D.

On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.

Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.

Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.

Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.

A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.

Tags: , , , , , , , , , ,

D.C. Circuit Court of Appeals Denies Petition for Review of FAA's "Presumed to Conform" Rule

Posted on February 5, 2009 by Chevalier, Allen & Lichman, LLP

On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.”  72 Fed.Reg. 41565 (July 30, 2007).  

Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act to assure that its projects “conform to an implementation plan after it has been approved or promulgated under section 7410" of the Clean Air Act.  42 U.S.C. 7506(c).  The FAA used its presumed to conform rule as one of the justifications for its failure to perform a conformity determination in the East Coast airspace redesign.

Although the Court found that the Petitioners did not have standing to bring the petition for review, the petition was successful in at least a couple regards.  First, the decision was based on the predicate issue of standing, and did not reach the merits of the Petitioners’ argument that the FAA had not complied with federal law in the promulgation of its presumed to conform rule.  Thus, that argument may be raised by the Petitioners in the East Coast airspace redesign litigation now pending before the D.C. Circuit.

Second, by bringing this case, Petitioners exhausted their legal remedies with respect to a "facial" challenge to the FAA's presumed to conform rule.  The opinion in this case leaves the validity of the FAA’s presumed to conform rule on the table, ripe for the court’s consideration in the airspace redesign litigation.

That being said, the court’s opinion is not without error.  For example, the court states that the “Petitioners challenge two recent FAA actions in which the FAA altered the air traffic control activities at airports . . .” Opinion, p.4.  However, that, in fact, is not the case.  As stated in the Petitioners’ brief, the issue was whether the FAA followed the rules set out by the EPA in 40 CFR 93.153 in promulgating its presumed to conform rule.  By confusing the Petitioners’ facial challenge of the FAA’s presumed to conform rule for an “as applied” challenge, the court mistakenly applied incorrect facts and law to the matter that resulted in error in the outcome.

You can read the pleadings in this matter right here:

In addition, the EPA is revising the regulations governing conformity. They expect to issue new regulations in early 2009. A group of cities and concerned companies filed comments on the EPA’s proposed revisions and asked the EPA to eliminate the “presumed to conform” rule from the regulations.

Other blog posts on this topic:

Tags: , , , , , , ,