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111 Cal.Rptr.2d 598, 2001 Daily Journal D.A.R. 9453 BERKELEY
KEEP JETS OVER THE BAY COMMITTEE, Petitioner and Appellant, v. BOARD OF
PORT COMMISSIONERS OF THE CITY OF OAKLAND, Defendant and Appellant. CITY OF
SAN LEANDRO et al., Plaintiffs, v. BOARD OF PORT
COMMISSIONERS OF THE CITY OF OAKLAND, Defendant. CITY OF
ALAMEDA et al., Plaintiffs and Appellants, v. BOARD
OF PORT COMMISSIONERS OF OAKLAND, Defendant and Appellant. Nos.
A086708, A087959, A089660. Court of
Appeal, First District, Division 2, California. Aug. 30,
2001. Modified
based upon “Order
Modifying Opinion and Denying Rehearing” dated Sept. 26, 2001 (This
modification clarifies but does not effect a change in the judgement.) [Opinion
certified for partial publication. [FN*] ] FN* Pursuant
to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of parts III.C., III.E., III.F., III.G.,
III.H., IV and V. SUMMARY A board of port commissioners for a city certified an
environmental impact report (EIR) analyzing the environmental consequences of a
proposed airport development plan (ADP) for the city airport. The ADP was a
multifaceted, long- range expansion proposal for the airport that would provide
increased capacity for both air cargo and passenger operations. Several
interested parties filed actions challenging the adequacy of the EIR. The trial
court issued a writ of mandate ordering the port commissioners to set aside
approval and certification of the EIR until a supplement to the EIR was
prepared and circulated that complied with the requirements of the California
Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). (Superior
Court of Alameda County, Nos. 793028-7, 793033-9 and 793056-0, William E.
Jensen, Judge. [FN] ) FN Retired
judge of the Solano Superior Court, assigned by the Chief Justice pursuant to
artice VI, section 6 of the California Constitution. The Court of Appeal affirmed in
part and reversed in part, and remanded with directions. The court held that
the EIR prepared for the airport expansion project was not deficient in
excluding a new runway and runway *1345
extension from the project description, and thus not considering their
environmental impacts. The only evidence that the plans for a new runway were
inseparable from the whole of the airport's master plan for expansion appeared
in dated, long-range planning documents of the port. The court also held that
the EIR was deficient, where, in reply to public criticism that the EIR failed
to use the most recent California Air Resources Board (CARB) speciation profile
in estimating toxic air contaminants (TAC) emissions from jet aircraft, the
port created the misleading impression that a CARB official had discouraged the
agency from utilizing a current speciation profile because it had not yet been
officially adopted by CARB and that CARB staff had questions about the accuracy
of its methodology. The court further held that the EIR was also deficient,
where, in its reply to public criticism that the EIR failed to assess the
health effect of toxic air contaminants from mobile sources on persons who live
in close proximity to the airport, the final EIR simply stated that the public
health impact of the TAC emissions was "unknown." In fact there was
much evidence concerning those health effects. The EIR was also deficient in
failing to 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 physiological 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 (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. (Opinion by Ruvolo, J., with Kline, P. J., and Haerle, J.,
concurring.) John R. Shordike; Shute, Mihaly
& Weinberger, E. Clement Shute, Jr. for Petitioner and Appellant. Carol A. Korade, City Attorney,
David Brandt, Deputy City Attorney; McDermott, Will & Emery and Steven F.
Pflaum for Plaintiffs and Appellants. McCutchen, Doyle, Brown &
Enersen, Stephen L. Kostka, Barbara J. Schussman, Peter S. Hayes, Geoffrey L.
Robinson; Brecher & Volker, Joseph J. Brecher; and David L. Alexander for
Defendant and Appellant. I. This appeal reviews the decision of the Board of Port
Commissioners for the Port of Oakland (the Port Commissioners) for the City of
Oakland to *1350 certify the
environmental impact report (EIR) analyzing the environmental consequences of
the proposed Airport Development Plan (ADP) for the Metropolitan Oakland
International Airport (the Airport). The ADP is a multifaceted, long-range
expansion proposal for the Airport that will provide increased capacity for
both air cargo and passenger operations. The trial court issued a peremptory writ of mandate ordering
the Port Commissioners to set aside approval and certification of the EIR until
a supplement to the EIR was prepared and circulated that complied with the
requirements of the California Environmental Quality Act (Pub. Resources Code,
§ 21000 et seq.) (CEQA). [FN1] The trial court held that the EIR
prepared for the ADP violated CEQA by failing to analyze a reasonable range of
alternatives, and by failing to evaluate the cumulative impacts of the ADP in
combination with other reasonably foreseeable projects. FN1 All
undesignated statutory references are to the Public Resources Code. The judgment granting a peremptory
writ of mandate is reversed in part and affirmed in part. We affirm the portion
of the superior court's judgment directing that a revised EIR be prepared to
include further discussion of project alternatives and cumulative impacts.
However, we conclude that the EIR prepared for the ADP did not comply with CEQA
in its treatment of several other critical issues. Specifically, the EIR: 1)
failed to analyze adequately the noise impacts from planned additional
nighttime flights; 2) erred in using outdated information in assessing the
emission of toxic air contaminants (TAC's) from jet aircraft; 3) failed to
support its decision not to evaluate the health risks associated with the
emission of TAC's with meaningful analysis; and 4) improperly deferred devising
a mitigation plan for the western burrowing owl. Because there are several
significant environmental issues that have not been adequately addressed in the
EIR's discussion of potential impacts from the project, a new supplemental EIR
must be prepared, submitted for public review and comment, and certified in
accordance with CEQA. We therefore direct that the trial court issue a new writ
of mandate in accordance with the views expressed herein. II. A. Project
Overview The project site for the ADP comprises approximately 2,445
acres and is located in the southwestern portion of the City of Oakland in
Alameda *1351 County. To the
north are the City of Alameda, San Leandro Bay, and Airport Channel; to the
east are the cities of San Leandro and Oakland; and to the south and west is
the San Francisco Bay. The ADP is designed to reduce congestion, inconvenience, and
delay at the Airport and to accommodate, at acceptable levels of service,
anticipated growth in passenger and cargo activity through the year 2000. [FN2]
The proposed passenger components of the ADP include consolidating the two
existing terminals, adding 12 new gates, reconfiguring ticket counters,
enlarging waiting and other public areas, and adding baggage-handling space.
Roads on and near the Airport will be widened and reconfigured, and a new
6,000-space parking garage will be built. The ADP responds to the projected
growth in cargo demand by expanding the Federal Express Metroplex, the United
States Postal Service Airmail Distribution Center, the North Airport cargo
facilities, and constructing a multitenant facility. [FN3] FN2 The EIR
assumed that the ADP would be approved, constructed, and operational by 2000.
After the EIR was completed and subjected to public review, it was clear that
the EIR process and project construction could not possibly be accomplished by
that date. Members of the public, noting the unrealistic time frame for the
project, requested that the entire ADP be reevaluated "to occur within a
realistic time frame and using an up-to- date baseline." The Port of
Oakland responded: "[T]he Port has reviewed regularly changes in baseline
information that could affect the discussion of significant impacts in the
Draft EIS/EIR and has determined that such changes, where they have occurred at
all, do not substantially affect the analysis presented in the Draft
EIS/EIR." FN3 The ADP
also includes an Airport Roadway Project. The Airport Roadway Project realigns
and widens some of the road between the freeway and the Airport and extends a
road across the Airport to the Bay Farm Island portion of the City of Alameda.
Approval of the Airport Roadway Project is not an issue on appeal because the
lower court's judgment allows the roadway project to proceed and no party has
challenged that ruling. While the ADP is only designed to accommodate activity
expected in the year 2000, the EIR forecasted the highest level of aircraft
operations that might occur through 2010 if activity at the Airport continues
to grow at the same pace as in the early 1990's. The EIR projected that, with
implementation of the ADP, the number of aircraft operations will increase from
about 470,000 in 1994 to over 600,000 in 2000, and to over 800,000 in 2010.
Thus, by 2010, approximately 2,200 aircraft will take off and land at the
Airport each day. The Port of Oakland (the Port), as lead agency under CEQA,
prepared a draft EIR, studying the significant environmental effects of the
ADP. The *1352 draft EIR was
published and made available for public review from September 10, 1996, to
December 30, 1996. [FN4] The Port received over 500 comments on the
draft document from public agencies, businesses, organizations, and
individuals. Public hearings were held on November 6, 1996, at which written
and oral comments were received. The comments ranged from one-page letters to
multivolume comment reports. The Port was occupied for a full year in preparing
written responses to the comments received and to completing modifications to
the draft EIR. FN4 The draft
document purports to fulfill all state CEQA and federal requirements under the
National Environmental Policy Act of 1969, 42 United States Code section 4321
et seq., and makes numerous references to being a joint EIR/EIS prepared by the
Port in conjunction with the Federal Aviation Administration (FAA). CEQA
provides that when a project will require both an EIS (environmental impact
statement) and an EIR, the lead agency "shall, whenever possible, use the
environmental impact statement as [the] environmental impact report ...."
(§ 21083.7.) However, according to the notice of review issued by the Port, the
final document is solely an EIR under CEQA. Because the FAA did not participate
in or approve the finalization of this document, we refer to it as simply as an
EIR. On December 3, 1997, the Port issued a final EIR for review
by interested persons and public agencies. The final EIR was comprised of 617
pages, plus another 2,612 pages in appendices, comment letters, and responses
to comments. The final EIR identified the ADP's significant environmental
effects. Significant impacts that can be mitigated to a less-than-significant
level were found in each of the following areas: social, air quality, water
quality, cultural resources, biotic communities, wetlands, flooding and
floodplains, hazardous materials and waste, transportation and circulation, geology
and seismicity, and public services and utilities. Significant and unavoidable
impacts were found in each of the following areas: noise, air quality,
hazardous materials and waste, and transportation and circulation. On December 16, 1997, the Port Commissioners adopted
Resolution No. 97376, certifying the final EIR and approving the ADP. Shortly
thereafter, four writ petitions were filed in the superior court challenging
the Port Commissioners' decision to certify the EIR and approve the project. A writ of mandate issued that conformed to these rulings,
and which ordered the Port Commissioners to set aside approval and
certification of the EIR until a supplement to the EIR was prepared and
circulated that complied with the requirements of CEQA by containing an
adequate analysis of project alternatives and cumulative impacts. The court
also issued an injunction prohibiting the Port from taking any action to
implement the ADP until it had fully complied with CEQA. Following briefing and
hearing, the court issued an order jointly granting petitioners $180,000 in
attorney fees. The trial court's resolution of this controversy has spawned
several appeals, which reach us after a somewhat serpentine procedural history.
We first consider appeal No. A086708, which is composed of separate appeals by
the City of Alameda and two citizens organizations, Berkeley Keep Jets Over the
Bay Committee, and Citizens League for Airport Safety and Serenity (CLASS)
(hereafter collectively referred to as petitioners). [FN5] Petitioners
primarily argue that the EIR's project description failed to disclose the full
magnitude of the project, and that the EIR did not fully address many
significant environmental issues associated with the proposed expansion of the
Airport's operations and facilities, including noise impacts, emission of toxic
air pollutants, and adverse impacts on threatened species such as the borrowing
owl. The Port cross-appealed, claiming the trial court erred in requiring a
supplemental analysis of project alternatives and cumulative impacts. [FN6] FN5 Although
the City of San Leandro was one of the entities that challenged the Port
Commissioners' certification of the EIR below, it was satisfied with the trial
court's decision and did not appeal. FN6 When the
matter was briefed, the Port elected not to pursue its cross- appeal from that
portion of the court's judgment requiring a supplemental analysis of project
alternatives. In appeal No. A089660, we review
the trial court's order discharging the peremptory writ of mandate issued in
appeal No. A086708. In appeal No. A087959, we review the court's order awarding
petitioners $180,000 in attorney fees pursuant to Code of Civil Procedure
section 1021.5, to be divided by stipulation or subsequent court order. Before
we address the multitude of issues raised by each of the parties in appeal No.
A086708, we review briefly the law that guides our resolution of these
important issues. *1354 B. General
Overview of CEQA and Standard of Review Relating to Claims that an EIR
Omitted Relevant Information Certain basic principles regarding the adequacy of an EIR
are relevant to much of our discussion. The statutory scheme of CEQA rests on
the fundamental requirement of section 21151 that "[a]ll local agencies
shall prepare ... an environmental impact report on any project that they
intend to carry out or approve which may have a significant effect on the
environment." The EIR serves to provide public agencies and the public in
general with information about the effect that a proposed project is likely to
have on the environment and to "[i]dentify ways that environmental damage
can be avoided or significantly reduced." (See fn. 7)(Cal. Code Regs.,
tit. 14, § 15002, subd. (a)(2) (Guidelines).) [FN7] "Its purpose is
to inform the public and its responsible officials of the environmental
consequences of their decisions before they are made. Thus, the EIR 'protects
not only the environment but also informed self-government.' [Citation.]"
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564
[276 Cal.Rptr. 410, 801 P.2d 1161].) FN7 All references
to the Guidelines are to the current CEQA Guidelines, which were revised in
1998, unless otherwise noted. (Cal. Code Regs., tit. 14, § 15000 et seq.) Where
the current Guidelines differ significantly from the Guidelines in effect when
the EIR was approved, the nature of the change will be noted and the superceded
Guidelines govern. (See Guidelines, § 15007.) The Guidelines "are binding
on all public agencies in California." (Guidelines, § 15000.) Our Supreme
Court has stated that "[a]t a minimum, ... courts should afford great
weight to the Guidelines except when a provision is clearly unauthorized or
erroneous under CEQA. [Citation.]" (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2 [253
Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights I).)
The only role for this court in
reviewing an EIR is to ensure that the public and responsible officials are
adequately informed " 'of the environmental consequences of their
decisions before they are made." (Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal.4th 1112, 1123 [26 Cal.Rptr.2d
231, 864 P.2d 502] (Laurel Heights II), original italics.) There, our Supreme
Court has described the standard of review in these cases: "In reviewing
an agency's determination, finding or decision under CEQA, a court must
determine whether the agency prejudicially abused its discretion. ([Pub.
Resources Code,] § 21168.5.) 'Abuse of discretion is established if the agency
has not proceeded in a manner required by law or if the determination or
decision is not supported by substantial evidence.' (Ibid., italics added.) The
Guidelines further define ' substantial evidence' as 'enough relevant
information and reasonable inferences from this information that a fair
argument can be made to support a conclusion, even though other conclusions
might also be reached.' (Guidelines, § 15384, subd. (a).)" (Id. at pp.
1132-1133, fn. omitted; see also §§ 21168, 21168.5.)
III. A. Project
Definition Petitioners claim the EIR's analysis of environmental
impacts is premised on an inadequate project description that severs portions
of the Port's on-site expansion plans, including the construction of a new
runway, a new high-speed taxiway, and an extension of runway 11/29 from the
ADP's project description. [FN8] As such, they contend this is a classic
case of "segmentation," in which an agency splits a large project
into small pieces in order to avoid detailed environmental review. (See Orinda
Assn. v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171 [227 Cal.Rptr.
688].) They argue, "[b]ecause the Port did not proceed in the manner
required by law when it excluded the new runway and the runway extension from
the FEIR's project description and then analyzed environmental impacts based
upon its truncated project description, the writ of mandate and judgment should
be amended to require the Port to prepare a revised EIR ...." FN8 A longer
runway would (1) enable cargo planes on long transoceanic flights to take off
fully loaded, rather than partially loaded as they do now; (2) improve operational
safety and efficiency; and (3) speed up runway maintenance by making it easier
to close a portion of the runway. The purpose of the high-speed taxiway is to
increase efficiency during certain weather conditions when landings are from
the north rather than from the south. In support of this contention, petitioners point to draft
planning documents, prepared over a decade ago, which evaluate the feasibility
of adding a new runway as part of an effort to develop a 20-year master plan
for the Airport, a plan which the Port never completed or adopted. Petitioners
also emphasize that the Port, at one time, intended to include the high-speed
taxiway and the extension of runway 11/29 as part of the proposed project
described in the EIR. However, the Port ultimately decided not to proceed with
these projects. The Port explains that its decision "was influenced in
part by the fact that continued efforts toward a longer range plan presented
significant institutional and political problems and stirred a great deal of
controversy." In the end, the Port decided to focus "on those
improvements that are clearly needed in Phase I. These include terminal
expansion, new *1358 terminal
support facilities, air cargo expansion, miscellaneous airfield improvements,
general aviation facilities development, and improved instrumentation." There is no dispute that CEQA forbids "piecemeal"
review of the significant environmental impacts of a project. This rule
derives, in part, from section 21002.1, subdivision (d), which requires the
lead agency-in this case, the Port-to "consider[] the effects, both
individual and collective, of all activities involved in [the] project."
It has been recognized that " '[a] curtailed or distorted project
description may stultify the objectives of the reporting process. Only through
an accurate view of the project may affected outsiders and public
decision-makers balance the proposal's benefit against its environmental cost,
consider mitigation measures, assess the advantage of terminating the proposal
... and weigh other alternatives in the balance. An accurate, stable and finite
project description is the sine qua non of an informative and legally
sufficient EIR.' [Citation.]" (Sacramento Old City Assn. v. City Council
(1991) 229 Cal.App.3d 1011, 1023 [280 Cal.Rptr. 478], original italics;
Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48
Cal.App.4th 182, 201 [55 Cal.Rptr.2d 625].) Under the Guidelines, the term "project" is
defined as "the whole of an action, which has a potential for resulting in
either a direct physical change in the environment, or a reasonably indirect
physical change in the environment ...." (Id. at § 15378, subd. (a).) At
the other end of the spectrum, long-range planning proposals are exempt from EIR
requirements: "A project involving only feasibility or planning studies
for possible future actions which the agency, board, or commission has not
approved, adopted, or funded does not require the preparation of an EIR
...." (Guidelines, § 15262.) [FN9] FN9 Despite
petitioners' argument to the contrary, nothing in section 15165 of the
Guidelines suggests that a proposal not deemed a part of a larger undertaking
which an agency is not ready to pursue, and may never pursue, be added to an
EIR on an existing project that the agency is proposing to approve. "Where
individual projects are, or a phased project is, to be undertaken and where the
total undertaking comprises a project with significant environmental effect,
the lead agency shall prepare a single program EIR for the ultimate project as
described in Section 15168...." (Guidelines, § 15165.) The fact that the
Guideline refers to "projects ... to be undertaken," confirms that it
is intended to apply only to project components that an agency is proposing to
implement. It does not extend to preliminary plans, feasibility studies or
contemplated development the agency is not proposing to approve or undertake.
(See also Guidelines, §§ 15167 [staged EIR's], 15168 [program EIR's].) Consequently, like so many other matters in life, timing in
EIR preparation is essential. It is desirable that "EIRs and negative
declarations should be prepared as early as feasible in the planning process to
enable environmental considerations to influence project program and design and
yet late *1359 enough to
provide meaningful information for environmental assessment...."
(Guidelines, § 15004, subd. (b); see also Bozung v. Local Agency Formation Com.
(1975) 13 Cal.3d 263, 282 [118 Cal.Rptr. 249, 529 P.2d 1017]; Stand Tall on
Principles v. Shasta Union High Sch. Dist. (1991) 235 Cal.App.3d 772, 780 [1
Cal.Rptr.2d 107]; Mount Sutro Defense Committee v. Regents of University of
California (1978) 77 Cal.App.3d 20, 35 [143 Cal.Rptr. 365].) Environmental
review which comes too late runs the risk of being simply a burdensome
reconsideration of decisions already made and becoming the sort of "post
hoc rationalization[] to support action already taken," which our high
court disapproved in Laurel Heights I, supra, 47 Cal.3d at page 394 (original italics). Petitioners primarily rely on Laurel Heights I, supra, 47
Cal.3d 376, to support their argument that the appropriate time to introduce
environmental considerations related to the construction of a new runway, new
high-speed taxiway, and extension of runway 11/29 into the decisionmaking
process was when the EIR was being prepared. Because Laurel Heights I is the
leading case in determining to what extent an EIR must consider potential
future expansion of existing proposals, we consider it in some detail. The project in Laurel Heights I was defined in the EIR as
" 'mov[ing] the School of Pharmacy basic science research units from the
[University of California, San Francisco (UCSF)] Parnassus campus to Laurel
Heights.' " (Laurel Heights I, supra, 47 Cal.3d at pp. 389, 393.) The
building at Laurel Heights was located in a mixed residential and commercial
neighborhood. (Id. at p. 388.) It was purchased by the Regents in 1985, and
consisted of approximately 354,000 square feet, of which only 100,000 was then
available for relocation of the UCSF School of Pharmacy research units. The
rest of the building was occupied by the California Department of
Transportation (Caltrans) under a lease that was to expire in 1990, with an
option for an additional five years. (Id. at p. 393.) However, the Regents
acknowledged that UCSF would occupy the entire building when the Caltrans space
became available, with the only uncertainty being the precise use of the
additional space. (Id. at pp. 396-397.) Proposals for the expansion included
development of " 'a biomedical research facility, with cross disciplinary
programs from all UCSF schools,' " as well as relocation of the UCSF's
Office of the Dean. (Id. at pp. 396- 397.) The Laurel Heights Neighborhood
Improvement Association, Inc. filed a petition for writ of mandate alleging,
among other things, that the EIR for the project was inadequate because it
failed to discuss the various proposals for expansion once the additional space
became available and the environmental effects of those activities. (Id. at pp.
387, 389.) *1360 After framing the central issue for decision as "what
circumstances require consideration in an EIR of future action related to the
proposed project" (Laurel Heights I, supra, 47 Cal.3d at p. 395), the Supreme
Court in Laurel Heights I concluded as follows: "We hold that an EIR must
include an analysis of the environmental effects of future expansion or other
action if: (1) it is a reasonably foreseeable consequence of the initial
project; and (2) the future expansion or action will be significant in that it
will likely change the scope or nature of the initial project or its
environmental effects. Absent these two circumstances, the future expansion
need not be considered in the EIR for the proposed project. Of course, if the
future action is not considered at that time, it will have to be discussed in a
subsequent EIR before the future action can be approved under CEQA." (Id.
at p. 396.) This standard, the Laurel Heights I court explained,
"is consistent with the principle that 'environmental considerations do
not become submerged by chopping a large project into many little ones-each
with a minimal potential impact on the environment-which cumulatively may have
disastrous consequences.' [Citation.] The standard also gives due deference to
the fact that premature environmental analysis may be meaningless and
financially wasteful. Under this standard, the facts of each case will
determine whether and to what extent an EIR must analyze future expansion or other
action." (Lauren Heights I, supra, 47 Cal.3d at p. 396, quoting Bozung v.
Local Agency Formation Com., supra, 13 Cal.3d at pp. 283-284.) On a cautionary note, the court stated: "We do not
require prophecy. The Regents are not required by our decision to commit
themselves to a particular use or to predict precisely what the environmental
effects, if any, of future activity will be. Nor do we require discussion in
the EIR of specific future action that is merely contemplated or a gleam in a
planner's eye. To do so would be inconsistent with the rule that mere
feasibility and planning studies do not require an EIR. (Guidelines, §
15262.)" (Laurel Heights I, supra, 47 Cal.3d at p. 398, italics added.) By contrast, here the only evidence petitioners offer to
support their assertion that the plans for a new runway are inseparable from
the whole of the Airport's master plan for expansion appear in dated,
long-range planning documents of the Port. With respect to a high-speed taxiway
and extension of runway 11/29, petitioners rely on documents showing that these
projects were deleted from the proposed ADP very early in the planning process.
However, to conclude that these documents irreversibly committed the Port to a
particular course of action would be to ignore the fact that large public transportation
projects, such as the one involved here, are in the planning and development
stage over a long period of time and customarily undergo many changes in design
and scope before they are actually built. In reviewing the ADP's project
definition, we are mindful that planning officials need flexibility to allow
for modifications without being found committed to projects simply being
contemplated in preliminary planning documents. In essence, these runway projects existed only as concepts
in long-range plans that were subject to constant revision. The record is
silent with regard to any meaningful planning, decision-making, or any other
activity by the Port moving forward with implementation of any such long range
plans. These are simply statements that at some undefined point in the future,
the Port might try to undertake these projects. It is, of course, not necessary
that plans for future use be final, or that the precise details of the future
use be known, before an analysis of environmental impacts are required. (Laurel
*1362 Heights I, supra, 47
Cal.3d at p. 398; see also City of Antioch v. City Council (1986) 187
Cal.App.3d 1325, 1338 [232 Cal.Rptr. 507].) However, the mere fact that a lead
agency acknowledges that it contemplates such a long range goal is not, by
itself, sufficient to conclude that it is a "reasonably foreseeable
consequence of the initial project." (Laurel Heights I, supra, at p. 396.) Furthermore, the result in Laurel Heights I turned on the
fact that occupying the rest of the building was linked to occupying the
initial 100,000 square feet, in that the expansion would fulfill the Regents'
stated planning objectives. The record reveals that the various runway projects
are not similarly "linked" to the ADP either functionally or as part
of the Port's concrete planning objectives for the airport.
On this record, the stated long-range goal of expanded
runway capacity is entirely speculative, and only "a gleam in a planner's
eye." (See Laurel Heights I, supra, 47 Cal.3d at p. 398.) Therefore,
failure to analyze a new runway, the high-speed taxiway, and runway extension
doesn't violate the underlying policy against "piecemealing," because
the facts do not support the conclusion that these contemplated long-range
projects are a reasonably foreseeable consequence of the project under review.
The EIR's project description was adequate. FN10 The trial
court's judgment granting the writ of mandate finds this portion of the EIR
deficient and requires a more complete discussion of the cumulative impacts
generated by the extension of Runway 11/29, and the construction of a
high-speed taxiway. The court's ruling also requires the EIR to discuss
cumulative impacts relating to a new runway. The Port has filed a cross-appeal
from this ruling, claiming that the EIR's discussion of cumulative impacts was
adequate. We will discuss the Port's cross-appeal in a later section of this
opinion. Similarly, because the extension
of runway 11/29 and the high-speed exit taxiway could proceed independently and
be implemented by 2010, they were included in the analysis of the EIR's no
project alternative in 2010. We reject petitioners' related argument that
"[b]y including the future extension of Runway 11/29 at MOIA in its
analysis of the no project alternative, the FEIR indisputably fails to analyze
the effects of the property remaining in its existing state." CEQA
requires that the EIR's no-project alternative address existing conditions as
well as what would reasonably be expected to occur in the foreseeable future if
the project were not approved, based on current plans and consistent with
available infrastructure and community services. (Guidelines, § 15126.6, subd.
(e)(2).) As succinctly explained in Planning & Conservation League v.
Department of Water Resources (2000) 83 Cal.App.4th 892, 911 [100 Cal.Rptr.2d
173], "[t]he existing conditions supplemented by a reasonable forecast,
are characterized as the no project alternative." (Italics added.) The
"no project" and project description requirements operate independent
of one another, and impose requirements using different threshold tests. Thus,
the inclusion of the extension of runway 11/29 in its discussion of the no
project alternative did not per se also obligate that it be incorporated as
part of the ADP project description. B. Toxic
Air Contaminants Petitioners next contend the EIR
failed to: 1) utilize the best available data to assess the increased emission
of TAC's from airplane engines; 2) analyze meaningfully the health risks
associated with the emission of TAC's; and 3) discuss adequately the ADP's
inconsistency with the state implementation plan, which contains the strategy
to be used by the State of California to make sure that national ambient air
quality standards will be met. (See 42 U.S.C. § 7410.)
1. The
EIR's Use of the 1991 Speciation Profile to Estimate TAC's The final EIR acknowledged that TAC's associated with
airport operations would increase with the contemplated airport expansion.
Specifically, expanded operations at the Airport will result in increased
levels of numerous TAC's including acrolein, benzene, chlorobenzene,
formaldehyde, and xylenes. The EIR also expressly conceded, "TACs may
cause both carcinogenic and adverse noncarcinogenic health effects."
(Italics added.) The EIR estimated TAC emissions from jet aircraft for the
years 2000 and 2010 based on a speciation profile contained in a document
entitled, " 'Identification of Volatile Organic Compound Species
Profiles,' Second Edition, published by the California Air Resources Board
(CARB) in August 1991" (profile #508 or the 1991 profile). Using this
speciation profile, various organic compounds emitted from airplane engines
were computed. In addition, the EIR compared the estimated increase in
countywide TAC emissions forecast to occur under the ADP with the emissions forecast
for the no project alternative. Notwithstanding these analyses, the EIR concluded that the
environmental effects of TAC increases due to the ADP are unknown because there
is no approved, standardized protocol for determining the risks associated with
mobile source TAC's, such as aircraft, and there are no significance criteria
associated with mobile source emission of TAC's. The EIR then considered mitigation of TAC's. The Port's air
quality experts determined that TAC emissions associated with the ADP would be
reduced through the nine mitigation measures established for criteria
pollutants [FN11] because those measures would reduce organic gas
emissions, of which TAC's are a fractional component. These proposed mitigation
measures were limited to efforts to control emissions of ground service
equipment, to *1365 install
ground power equipment at new gates, to encourage ground transportation systems
management, to purchase emissions credits to offset emissions from stationary
sources, and to ensure that required permits are obtained from the Bay Area Air
Quality Management District (BAAQMD). However, once again the EIR concluded
that, "[a]s there are no standards of significance for mobile-source TAC
emissions, the significance of this impact after mitigation is unknown." FN11 Criteria
pollutants are six pollutants listed in the Clean Air Act that are regulated by
the EPA because of their health and/or environmental effects. They are nitrogen
dioxide, sulfur dioxide, carbon monoxide, ozone, particulate matter, and lead.
Dr. Fox provided data indicating that the TAC emissions from
the project would substantially increase if CARB profile #586 were used to
estimate emissions from jet aircraft. For example, relying on the 1991 profile,
the EIR reported that jet aircraft exhaust contains only two types of TAC's:
benzene and xylene. However, the analysis conducted by Dr. Fox using the 1994
profile measures jet aircraft exhaust for six other TAC's (acetaldehyde,
acrolein, 1,3-butadiene, formaldehyde, propylene and toluene), each of which
can cause cancer or other severe health problems. In reaction to Dr. Fox's public comment on the draft EIR,
the Port published a response claiming that CARB profile #586 should not be
used to estimate toxic emissions because CARB had not yet published that newer
profile. Furthermore, citing a 1997 conversation with Paul Allen, an air
pollution research specialist with CARB, the Port made the following statement:
"CARB staff has expressed concern regarding the accuracy of some of the
particular compounds contained in specifies [sic] profile #586 .... CARB has
not determined what speciation profile will be included for jet exhaust when it
releases its third edition of the reference manual cited above for public
review sometime next year." A declaration from Paul Allen was then submitted in
connection with petitioners' legal challenge below to the final EIR. [FN12]
In his declaration, Mr. *1366
Allen corrects the misleading impression given in the Port's response to public
comments by averring: "On November 7, 1997, I spoke with [a Port
representative]. He said that he was calling about the EIR for the Oakland
airport expansion. He asked about speciation profile #586 for jet exhaust. I
told him that, in my opinion, speciation profile #586 is the best profile
available. I told him that the fraction for formaldehyde seemed high, but not
necessarily inaccurate. I did not say that I doubted the overall accuracy of
speciation profile #586. I did say that the older species profile #508 should
not be used to characterize jet exhaust speciation.... Although profile #586 is
based on data published by the USEPA, it has not been adopted by CARB for use
in the VOC speciation manual. However, the CARB staff believe that this profile
is the most accurate characterization of jet exhaust available." (Italics
added.) FN12 We take
judicial notice of Mr. Allen's declaration even though it was not part of the
administrative record at the time the Port approved the project and certified
the EIR. (Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th
1609, 1621 [45 Cal.Rptr.2d 688].) The record also contains a letter dated December 15, 1997,
from Linda C. Murchison, chief of CARB's emission inventory branch. A copy of
this letter was submitted to the Port Commissioners prior to certification of
the final EIR. In pertinent part, the letter stated: "The Port of Oakland
used profile #508 for the speciation of the organic gases from jet exhaust.
Profile #508 is contained in a report published by the California Air Resources
Board (CARB) in 1991. Because organic gas speciation profiles are being
continually updated and improved, we routinely encourage the use of the best
information available for the evaluation of emissions of toxic air contaminants.
For jet exhaust, we believe that the best data available are the EPA 1097, 1098
and 1099 profiles contained in the 'Air Emissions Species Manual'
EPA-450/2-88-003a. The CARB profile #586 is an average of the three EPA
profiles. We believe that profile #586 is a more accurate and comprehensive
profile of the organic species contained in jet exhaust than what is contained
in profile #508." (Italics added.) Therefore, in reply to public criticism that the EIR failed
to use the most recent CARB speciation profile in estimating TAC emissions from
jet aircraft, the Port created the misleading impression that a CARB official
had discouraged the Port from utilizing speciation profile #586 because it had
not yet been officially adopted by CARB and that CARB staff had questions about
the accuracy of its methodology. The omission of the CARB official's opinion
that "the older species profile #508 should not be used to characterize
jet exhaust speciation" and that speciation profile #586 "is the most
accurate characterization of jet exhaust available" is a serious one, and
is such as to prevent a decisionmaker and the public from gaining a true *1367 understanding of one of the most
important environmental consequences of increasing the number flights. [FN13] FN13 We also
note that this court may properly be skeptical as to whether the EIR's myriad
environmental conclusions have a substantial basis in fact in light of the
overwhelming evidence that, in this particular instance, the Port chose simply
to ignore and then to mischaracterize the view of CARB, the agency having the
pertinent expertise. (See Sierra Club v. United States Army Corps of Eng. (2d
Cir. 1983) 701 F.2d 1011, 1030.) The Port raises the illusory
argument that the Port Commissioners, in fact, had "the opportunity to
consider emissions data from both the official and draft speciation profiles in
making its decision to approve the EIR." For support it refers us to Dr.
Fox's comment letter in which she questioned the Port's reliance on CARB's 1991
speciation profile #508. As we have noted, Dr. Fox recalculates TAC emissions
using CARB's 1994 speciation profile #586, which indeed shows an increase in
TAC emissions far greater than reported in the draft EIR. But in making its
argument, the Port fails to point out that Dr. Fox's views were perfunctorily
discredited in the Port's published response to her letter without any contrary
analysis being made by the Port. 2. Failure
to Prepare Health Risk Assessment In addition to challenging the
Port's quantification of TAC's using the 1991 speciation profile, petitioners
also claim the Port failed to assess the health effect of TAC's from mobile
sources on persons who live in close proximity to the Airport. In response to
these concerns, the final EIR simply stated that the public health impact of
the TAC emissions was "unknown."
The Port also relied on a letter
from BAAQMD, which was received during the early scooping stage before the
draft EIR was released for public comment (Guidelines, §§ 15082-15083) which
did not take issue with the Port’s characterization of the impact from TAC
emissions as “unknown.” However, the
manager of the BAAQMD’s Air Toxic Evaluation Section, Brian Bateman, was
contacted by petitioners and was quoted as stating that the significance
criteria in the BAAQMD CEQA and the California Air Pollution Control Officers’
Association (CAPCOA) Risk Assessment Guidelines apply to mobile sources. In a document submitted at the public
hearing before the final EIR was certified, he was quoted as stating, ‘these
guidelines are generally applicable to any source, but special considerations in
the area of dispersion modeling apply to mobile sources.’ “ Mr. Bateman further indicated “that the
CAPCOA guidelines are applicable to airports and that it is technically
feasible to perform a health risk assessment for an airport. He stated that the preparation of risk
assessment for an airport ‘is certainly a doable exercise from a technical
standpoint. You can’t argue that it
cannot be done’ “ [FN14] FN14 On rehearing, the Port contends that this
document, as well as the other documents received at the public hearing on the
certification of the final EIR, was submitted too late in the environmental
review process to be considered .
However, it has been held that objections are timely raised anytime
before certification of the final EIR.
(Galante Vineyards v. Monterey Peninsula Water Management Dist., supra,
60 Cal.App.4th at pp. 1119- 1121 [petitioners could maintain action
despite their failure to participate in public comment period for second
supplemental draft environmental impact report because they raised concerns
before certification of final EIR].) In
any event, in our case, the material submitted during the public hearing on the
certification of the final EIR only supplemented comments already made on the
draft EIR and did not raise any new issues. The Port has not cited us to any
reasonably conscientious effort it took either to collect additional data or to
make further inquiries of environmental or regulatory agencies having expertise
in the matter. These failures flout the requirement that the lead agency
consult "with all responsible agencies and with any other public agency
which has jurisdiction by law over natural resources affected by the project
...." (§ 21080.3, subd. (a).) At the very least, the documents submitted
by the public raised substantial questions about the project's effects on the
environment and the unknown health risks to the area's residents. When this
matter was argued before the superior court, the Port's lawyer indicated that
the omission of a health risk assessment should be excused because "there
is no methodology universally accepted as to what's significant."
Alternatively, in the absence of these efforts, the Port has not offered any
justification why more definitive information could not have been provided. The fact that a single methodology
does not currently exist that would provide the Port with a precise, or
"universally accepted," quantification of the human health risk from
TAC exposure does not excuse the preparation of any health risk assessment-it
requires the Port to do the necessary work to educate itself about the
different methodologies that are available. The Guidelines recognize that
"[d]rafting an EIR ... involves some degree of forecasting. While
foreseeing the unforeseeable is not possible, an agency must use its best efforts
to find out and disclose all that it reasonably can." (Guidelines, §
15144, italics added.) "If, after thorough investigation, a lead agency
finds that a particular impact is too speculative for evaluation, the agency
should note its conclusion and terminate discussion of the impact."
(Guidelines, § 15145, italics added.) We also find unpersuasive the
Port's argument that the absence of a health risk assessment can be excused
because the Port Commissioners, in approving the EIR, found that the effect of
TAC's would be significant but that overriding considerations warranted
proceeding with the project anyway. This approach has the process exactly
backward and allows the lead agency to travel the legally impermissible easy
road to CEQA compliance. Before one brings about a potentially significant and
irreversible change to the environment, an EIR must be prepared that
sufficiently explores the significant environmental effects created by the
project. The EIR's approach of *1371
simply labeling the effect "significant" without accompanying
analysis of the project's impact on the health of the Airport's employees and
nearby residents is inadequate to meet the environmental assessment
requirements of CEQA. In summary, the defects disclosed
by the record in the EIR's treatment of TAC's are substantial. The Port's
response fell far short of the "good faith reasoned analysis"
mandated by CEQA for responding to significant conflicting information
generated by the public. (Laurel Heights II, supra, 6 Cal.4th at p. 1124; Cleary
v. County of Stanislaus, supra, 118 Cal.App.3d at p. 358.) Much information of
vital interest to the decision makers and to the public pertaining to toxic air
contamination was simply omitted. In other instances, the information provided
was either incomplete or misleading. The dispute in this regard goes beyond a
disagreement of qualified experts over the reasoned conclusions as to what the
data reveals. The EIR failed to acknowledge the opinions of responsible
agencies and experts who cast substantial doubt on the adequacy of the EIR's
analysis of this subject. The conclusory and evasive nature of the response to
comments is pervasive, with the EIR failing to support its many conclusory
statements by scientific or objective data. These violations of CEQA constitute
an abuse of discretion. The Port must meaningfully attempt to quantify the
amount of mobile-source emissions that would be emitted from normal operations
conducted as part of the ADP, and whether these emissions will result in any
significant health impacts. If so, the EIR must discuss what mitigation
measures are necessary to ensure the project's conformance with all applicable
laws, ordinances, standards, and regulations related to public health
protection. C.
Consistency with the State Implementation Plan [FN*] FN* See
footnote, ante, page 1344. . . . . .
. . . . . . D. Noise
Impacts Petitioners next contend that the EIR failed to address
adequately the potential disturbance to area residents resulting from increased
nighttime air cargo operations. Specifically, they claim the EIR omitted
significant information about the ADP's potential interference with sleep,
including *1372 physiological
response and annoyance from increased nighttime overflights. [FN16] We
conclude that this contention has merit. FN16 Noise
interference with human communications is also mentioned by petitioners,
although clearly the focus of concern has been, and is, on the impact the
increase in overnight cargo flights will have on sleep patterns of residents in
the neighboring communities. 1.
Environmental Conclusions Reached in the EIR About Noise Impacts Resulting
from the Airport Expansion The ADP responds to the anticipated growth in air cargo
demand by proposing to construct a Federal Express Metroplex, air cargo
facilities for Burlington Air Express and Emery Worldwide Freight, and a
multitenant air cargo sorting and administrative office. The ADP also proposes
to expand the United States Postal Service handling facilities. With this
expansion would come an accompanying projected increase in aircraft operations.
As already noted, the EIR projected that, with the implementation of the ADP,
annual aircraft operations will increase from about 470,000 in 1994 to over
600,000 in the year 2000, and to over 800,000 in 2010. Moreover, once the ADP
is fully implemented in 2010, there would be almost a threefold increase in the
number of flights attributable to air cargo operations. Specifically, air cargo
operations are projected to increase from 1994 levels of 50,426 flights to
146,144 flights in 2010. The EIR recognized that air cargo activity generally takes
place during the noise-sensitive nighttime hours: "The vast majority of
commercial nighttime operations at [the Airport] are air cargo operations. Air
cargo carriers conduct many of the aircraft operations at nighttime for
business reasons, such as providing overnight and faster delivery of their
customers' cargo." Although the exact number of nighttime flights directly
attributable to the implementation of the ADP is not consistently defined in
the EIR, one document generated by the Port indicated that during the year
2010, at least 65,000 additional nighttime flights are expected at the Airport
annually, 27,000 of which would result from the ADP. These figures are used to
support petitioners' statement that by 2010, there will be an additional 178
nighttime flights each day, 73 of which would be directly attributable to the
expansion in the air cargo business as described in the ADP. The EIR studied the aviation noise that would be generated
from the increased passenger and cargo flights resulting from implementation of
the ADP using a cumulative noise descriptor called the Community Noise
Equivalent Level (CNEL). The CNEL is the 24-hour average sound level, in decibels,
obtained from the accumulation of all sound sources. The CNEL *1373 calculates the total sound exposure,
in decibels, at a given location and then divides the total by 24 hours to
derive an average. To this is added 10 decibels to sound levels in the night
from 10:00 p.m. to 7:00 a.m., and the addition of 5 decibels to sound levels in
the evening from 7:00 p.m. to 10:00 p.m. This additional weighting of nighttime
sound is intended to take into account the usual increased interfering effects
of noise during the nighttime hours. The EIR contained a fixed standard of 65 CNEL for measuring
when aircraft noise was considered to create a significant environmental
effect. This definition is critical, because once "significant
effects" have been identified in the EIR, an agency must explore
implementing feasible mitigation measures or alternatives to avoid or reduce
the effect. (§§ 21081, 21002.1.) The EIR concluded that noise impacts would
only be significant if, over a 24-hour period, the average noise levels either
1) increased by more than 1.5 CNEL in those areas already experiencing noise
levels greater than 65 CNEL, or 2) caused the noise levels in an area to exceed
66.5 CNEL. [FN17] The EIR explained that the CNEL methodology for
determining the significance of aircraft noise on residential areas is based on
the research and recommendations of the Federal Interagency Committee on Noise,
the FAA's standard residential noise compatibility criteria, and the State of
California's airport noise standards for compatibility with residential land
uses. [FN18] FN17 The EIR
also contained some "Time Above" (TA) figures in addition to the
CNEL-based criteria. The TA descriptor addresses the issue of peak noise levels
by providing an estimate of the cumulative amount of time over the course of a
day when aircraft noise would exceed a given noise level. However the EIR made
it clear that "TA values are also used to characterize noise impacts but
are not used as an independent criterion for significance." FN18
California Code of Regulations, title 21, section 5012, setting California
airport noise standards, states: "The standard for the acceptable level of
aircraft noise for persons living in the vicinity of airports is hereby
established to be a community noise equivalent of 65 decibels." (See
Bakman v. Department of Transportation (1979) 99 Cal.App.3d 665, 681-684 [160
Cal.Rptr. 583] [in reviewing Department of Transportation's decision to issue
an amended airport permit for the purpose of proposed airport expansion, there
was no showing airport was violating airport noise standards].) Using the CNEL data, the EIR contained maps of land uses in
the Airport vicinity, with noise contours superimposed on the maps that show
exactly which areas will experience aircraft noise at 65, 70 and 75 CNEL in
2000 and 2010. The noise contour maps also compare future noise levels under
the ADP both to existing conditions and to future conditions without the ADP.
Using 65 CNEL as the threshold of measuring a significant noise impact, the EIR
came to several conclusions: -In 2000 (the EIR assumed the ADP would be constructed by
2000 [see fn. 2]) the number of residences experiencing aircraft noise at or
above 65 *1374 CNEL, even with
the greater number of flights forecast with the ADP, would actually decrease
from over 1,000 in 1994 to only 12. Because the Port holds avigation easements [FN19]
for all of these residences, no mitigation measures were proposed. FN19 Avigation
easements are private agreements that subject property to conditions caused by
aircraft noise. -The EIR concluded that the noise levels would decrease,
despite the substantial increase in flights, because jet aircraft are becoming
quieter, and federal law requires air carriers to convert their noisier
"Stage 2" jet engines to quieter "Stage 3" engines by 2000.
[FN20] As a result, in 2000 even with the ADP, there would be no
aircraft noise impacts that qualified as significant. FN20 The EIR
acknowledged that Stage 3 requirements do not apply to privately owned jets or
other jets with a maximum takeoff weight of 75,000 pounds or less, and no
reduction in noise from these types of jets was assumed in the EIR's analysis. -By 2010, even with implementation
of the ADP and the maximum amount of passenger and air cargo activity that could
occur, the total number of residences within the 65 CNEL boundary would still
be fewer than the number of residences significantly impacted by noise in 1994.
In 2010, there would be 288 residences significantly impacted by noise on Bay
Farm Island (the area immediately adjacent to the Airport's northern boundary
and the site closest to runway 11/29), 259 in San Leandro, and 10 in Alameda.
2.
Requests for Supplementary Noise Analysis "The purpose of requiring
public review [of an EIR] is to ' " ' demonstrate to an apprehensive
citizenry that the agency has, in fact, analyzed and considered the ecological
implications of its action.' " [Citation.]' ..." (Schoen v.
Department of Forestry & Fire Protection (1997) 58 Cal.App.4th 556, 573-574
[68 Cal.Rptr.2d 343].) It is fair to
say that the disposition of the citizenry who attended public hearings, signed
petitions, and wrote letters in response to the draft EIR's noise analysis went
beyond "apprehensive" and could more aptly be described as
"incredulous."
Acoustical engineer James Nelson,
Ph.D., performed a detailed noise sampling and modeling in a Berkeley hills
neighborhood. Dr. Nelson's data revealed that existing flights over Berkeley
had already caused significant impacts to sleep disturbance. He opined: "A
significant number of aircraft over-flights (20%) appear to produce maximum
noise levels in excess of 65 dBA, roughly 20 dBA higher than the median sound
level during the day, and 30 dBA higher than the median sound level occurring
during the late-night and early morning hours. [ ] Twenty percent of existing
aircraft over-flights may produce single event levels in excess of SEL 61
[Single Event Level] in bedrooms with open windows.... The Draft EIS/EIR for
the Oakland Development Project indicates that a single noise event with SEL 61
or higher will disturb the sleep of about 30% or more of those people exposed
to such noise. About 17% or more of those people so exposed may be awakened
from sleep, if only briefly, and possibly without remembering." Based on
this data, Dr. Nelson concludes that "a disproportionate increase in the
number of late night over-flights over Berkeley resulting from the Oakland
Airport Development Program could adversely affect the existing noise
environment," and urged further analysis of single event noise to fill the
gaps in the EIR's noise analysis. Acoustical consultant John
Freytag, who was retained by petitioners, offered this opinion: "An analysis
of sleep interference, speech interference and single event noise is required
for the residential communities of Alameda which are and will continue to be
impacted by the Airport.... The sleep interference assessment must consider the
Single Event Levels (SEL values) of the individual flyovers occurring during
the nighttime (sleeping period), and the frequency of occurrence of these
events." In considering the criticism that the draft EIR had unreasonably failed to quantify with any precision the effect of single noise events on area residents, the Port retreated to the CNEL methodology for measuring acceptable noise limits for the residential neighborhoods surrounding the Airport. The Port responded: "The CNEL is the FAA-endorsed descriptor for evaluating airport noise impacts. Single-event descriptors, such as the SEL or TA values, are supplementary to the CNEL and help to characterize |