Oregon Aviation Watch Files for Emergency Injunctive ReliefDue to the numerous adverse environmental and public health impacts posed by the Hillsboro Airport, Oregon Aviation Watch (OAW) filed an appeal in the U.S. Ninth Circuit Court of Appeals challenging the construction of a third runway at this facility. Oregon Aviation Watch believes that the public who is footing the bill should have an opportunity for judicial review before the Port of Portland (Port) embarks on this project. Even without the expansion, members of the community are already subject to multiple negative effects generated by this facility including, but not limited to, noise, lead exposure, pollution, property devaluation, safety risks and security concerns. The proposed expansion, which will nearly double the capacity at this airport, will likely double the negative impacts as well. Yet despite legitimate community concerns and without waiting for a ruling by the Ninth Circuit Court of Appeals, the Port announced plans to begin construction this summer, possibly as soon as July 2014.
In response, Sean Malone, attorney for Oregon Aviation Watch, filed an urgent motion for injunctive relief pending appeal in an effort to avert the irreparable harm posed by this project. There are a number of inaccuracies contained in the Federal Aviation Administration's (FAA) Final Supplemental Environmental Assessment (SEA) on the HIO third runway and the Finding of No Significant Impact (FONSI) contained therein.
Oregon Aviation Watch believes that a true “hard look” at the impact this project has on our community is called for in this situation, in the form of a full Environmental Impact Statement (EIS). The current Environmental Assessment (EA) and FONSI, based on estimates and assumptions, are poor substitutes for an EIS, which entails a thorough and forthright investigation into actual impacts.
This update addresses a few of the many inaccuracies contained in the Final SEA. Others will be explored in future postings.
HIO is located in Washington County, the second most populated county in Oregon. It is surrounded on three sides by residential communities and on the fourth by fertile farmland. Over the past 84 years HIO has grown from a grassy airstrip to the largest general aviation airport in the state. The majority of flights at this facility are conducted by a private flight training school on behalf of student pilots, many of whom are recruited from around the globe. Students who train at HIO engage in local “touch and go” maneuvers involving repetitive flying at or below 2,000 feet within 4 to 5 miles of the airport. Additional training operations are conducted over surrounding communities within 20 miles of the airport.
In addition to the student pilots, recreational general aviation enthusiasts and air taxis, as well as corporate and business jet traffic, now dominate the skies over Hillsboro and the surrounding communities. The Port of Portland assumed ownership of the facility 48 years ago, yet over the course of that time has never taken a “hard look” at the environmental impact by completing an Environmental Impact Statement (EIS). The Port relies on public money to operate the Hillsboro Airport on behalf of the private businesses located there. The estimated cost of the proposed third runway is currently $17.2 Million. The public is expected to assume the expense via federal and state (ConnectOregon) subsidies.
Port Erroneously Certified that Unconstitutional Airport Zoning Applies to HIO
Port/FAA Claim: The FONSI includes a 10/30/13 letter from Vince Granato, Port of Portland Chief Operating Officer, to U.S. Department of Transportation Secretary, Anthony Foxx. This letter, which is included in Appendix H of the Supplemental Environmental Assessment on the third runway, states that the Airport Use (AU) zone “applies to the Airport property” and that the Airport Safety and Compatibility Overlay (ASCO) zone “applies to both the Airport and the surrounding properties.” Granato further states, “Through this letter, the Port offers assurances that zoning and other controls put into place achieve the requisite protection desired by 47107(a)(10).”
Oregon Aviation Watch Response: What Mr. Granato failed to mention is that a June 30, 2010 Oregon Land Use Board of Appeals decision reversed the Hillsboro Airport zones cited above as they were found to be in violation of both the State of Oregon and U.S. Constitutions. The Oregon Court of Appeals subsequently upheld LUBA's ruling.  As noted by Mr. Malone, attorney for Oregon Aviation Watch, “The unconstitutional infirmity has not yet been remedied.”
In addition, Mr. Malone points out, “...neither in the original EA [Environmental Assessment] nor the draft supplemental EA did the FAA make any certifications pursuant to 49 U.S.C. & 47106(a)(1). It was not until the FONSI/ROD [Record of Decision] that the FAA made such certification and Petitioners were unable to comment after issuance of the FONSI/ROD.”
Port Erroneously Certified That Port of Portland Commission has Voting Representation
Port/FAA Claim: A second letter by Mr. Granato, this one addressed to FAA Airports Division Manager Sarah Dalton, claims that “the airport management board has voting representation from the communities in which the project would be located or that the sponsor has advised communities they have the right to petition the Secretary of Transportation about a proposed project...” as a precondition for grant funding approval.
Oregon Aviation Watch Response: All voting by the Board of Port of Portland Commissioners regarding the Hillsboro Airport expansion proposal occurred in Portland, which is located in Multnomah County. HIO by contrast is in the city of Hillsboro in Washington County. By conducting their business without substantive community input from residents residing in the jurisdiction where the airport is located, the Port denied impacted residents a voice in the process. The members of the Port of Portland Board of Commissioners are Governor appointees. Unlike Port commissioners in other parts of Oregon, they are not elected, and as a result are often unresponsive to community concerns.
As to the right to petition the Secretary of Transportation regarding this expansion, Oregon Aviation Watch filed an appeal in the U.S. Ninth Circuit Court of Appeals, yet the Port announced plans to begin construction this summer before the court has an opportunity to hear the case and issue a decision.
Port Claimed That HIO Lead Emissions Have No Significant Impact on Children
Port/FAA Claim: The Port and FAA assert that until lead emissions at HIO exceed 25 tons per year, “there would be no significant risks to children's health and welfare”
Oregon Aviation Watch Response: The above statement indicates that despite overwhelming evidence attesting to the pernicious effects of lead on children, even at very low levels, neither the Port nor the FAA feel any compunction to take definitive steps to address the impacts of this criteria pollutant unless the proposed project releases 25 tons of lead into the environment on an annual basis.
In this regard, it is worth noting that modeling conducted by the Oregon Department of Environmental Quality in 2005, “...indicated that a high concentration of lead that could exceed the National Ambient Air Quality Standard (NAAQS) was located over Hillsboro Airport (HIO).” In response the Port hired a private consultant to conduct a separate study, one that included no third party review or any public input whatsoever. In addition, it significantly diverged from EPA guidelines for measuring lead.
In December of 2010, in light of the very serious health impacts associated with lead, the EPA devised new standards for measuring this toxin. “State and local air quality agencies are now required to monitor near industrial facilities with estimated lead emissions of 0.5 tons or more per year and at airports with estimated emissions of 1.0 tons or more per year.” HIO estimates their current lead emission level as 0.7 tons per year and expects that emissions of this toxin will increase to 0.9 (tpy) within the next 7 years, if not sooner.
In addition the EPA is currently engaged in a monitoring study of 17 U.S. airports. The airports included in the study were chosen from a list of the 58 airports nationwide which in 2008 emitted more than 0.5 tons of lead into the environment each year. Though HIO, with an estimated emission rate of 0.68 tpy, ranked 21st in the nation among nearly 20,000 U.S. airports, it was not included in the study. Of the 15 airports monitored by the EPA, only two emitted more lead on an annual basis than HIO did.
The EPA study, which is still ongoing, found that two airports exceeded the National Ambient Air Quality Standard (NAAQS) for lead. One was San Carlos, which in 2008 emitted 0.53 (tpy). The lead emissions at San Carlos were more than double the NAAQS for lead. Significantly, this facility logs less than half as many annual operations and less than half as many low flying “touch and go” flight training operations as HIO does.
A second airport, McClellan-Palomar in San Diego County with estimated lead emissions in 2008 of 0.59 tons was also found to exceed NAAQS for lead. In 2011, the year the study was conducted, this facility logged 72,000 fewer flights than HIO and less than one-third as many local touch-and-go operations.
The above findings suggest that HIO may well be in excess of the NAAQS for lead. Yet despite this knowledge, the Port and FAA maintain that as long as the third runway related emissions remain below 25 tons at HIO, “there would be no significant risks to children's health and welfare.” This is an alarming statement that brings into question the ability of both the Port and FAA to engage in responsible and humane policy level decisions. Adding a third runway at HIO will nearly double the capacity at this facility. Even without the expansion, HIO is the largest facility source of lead emissions in the state.
Lead is a dangerous neurotoxin and a suspected carcinogen. It is particularly damaging to children and is linked with lowering IQs, Attention Deficit Hyperactivity Disorder (ADHD), autism, learning deficits, and behavior problems. In adults it is associated with miscarriages, cardiovascular disease, kidney ailments, dementia and increased violence. The pernicious effects of this toxin are found even at very low doses and at exposure levels that were once considered safe. The Centers for Disease Control (CDC) has stated that there is no safe level of lead in a child's blood. “Decades of research has shown that lead poisoning causes significant and probably irreversible damage to the brain. Not only does lead degrade cognitive abilities and lower intelligence, it also degrades a person's ability to make decisions by damaging areas of the brain responsible for 'emotional regulation, impulse control, attention, verbal reasoning, and mental flexibility.”
The Centers for Disease Control (CDC) has concluded that, “...because no level of lead in a child's blood can be specified as safe, primary prevention must serve as the foundation of the effort [to eliminate childhood lead poisoning].”
In light of these very serious health impacts, it is shocking that neither the Port nor the FAA feel compelled to address these impacts unless an expansion project at this facility increases the emission level 35 fold, to over 25 tons. This is an astonishingly irresponsible attitude that betrays a profound and deep seated indifference to children, public health and the greater good.
FAA and Port Erroneously Claim that HIO Generated Noise Has No Significant Noise Impact
Port/FAA Claim: The Port of Portland consistently downplays the impact of aviation noise on the surrounding community. In fact, the Final SEA maintains that there are “no noise sensitive impacts”  associated with HIO aircraft operations. The Port arrived at this conclusion by relying on modeling data rather than actual monitoring. The Port's assertions are in direct conflict with the testimony submitted by numerous individuals who stated their opposition to the third runway proposal, in part because of frequent, unwelcome noise intrusions. Even without the expansion, the Port has failed to substantively address the near constant air traffic noise plaguing area residents due to relentless flight training maneuvers, recreational hobbyist activity and business and recreational jet traffic over surrounding homes and neighborhoods.
Oregon Aviation Watch Response: Numerous people both close-in and at a distance from the airport have filed complaints about aircraft noise generated by the Hillsboro Airport. More often than not the Port of Portland's Noise Management Office claims that it is powerless to remedy the problem. One airport neighbor who has lived on his property for nearly 30 years summed up his frustration in dealing with unwanted helicopter noise intrusions, “I've called so many times to airport aviation and complained about it that after a while you give up because it doesn't do any good...There's no recourse.”
Similar sentiments were echoed by others. A couple who reside in Forest Grove, 15 miles from HIO, recounted their experience in logging complaints,
“We have made several calls to complain about the noise but gave up when we were told (paraphrasing here) the helicopters could basically do anything they want because it's a business and they are promoting commerce - by law they could even fly/hover very close to the ground - so we stopped calling. We cannot understand why these helicopters are allowed to fly around in circles over homes - some days for hours and hours as one leaves and another takes its place...We wonder what the incessant helicopter traffic is doing to our hearing and health - we know it's infringing on our rights to live peacefully in our home.” 
The Port's explanation as to why these residents are subjected to so much aviation activity even though they live at a significant distance from the airport reads as follows: “Many pilots departing Hillsboro Airport prefer not to fly East in order to avoid PDX airspace and the requirements that come with flight through Class C airspace. A pilot flying North of Hillsboro Airport would encounter either PDX arrival or departure traffic and wake turbulence depending on which runways are being used at PDX. Southbound pilots would encounter traffic using the Newburg VOR and departures/arrivals from airports such as Stark's Twin Oaks, Chehalem, Sportsman, McMinnville, Aurora State, etc. Located generally Westward from Hillsboro Airport is the least dense airspace area where students and instructors can operate while avoiding most of the general PDX/HIO aviation activities.”
In other words, a decision was made to further the private business interests of the aviation sector while denying impacted members of the public a voice in the process. This has, in turn, diminished the rights of established residents to the enjoyment of their properties.
One of the petitioners challenging the third runway, Blaine Ackley, who lives in Hillsboro on the approach jet path to the current runway, stated that continual noise from the airport, “...has become such an issue for my family that we often leave our home on the weekends to find peace and quiet elsewhere.”
Another Hillsboro resident and Petitioner, Jim Lubischer, whose home is located 1.8 miles southeast of Hillsboro Airport, testified that though his residence is not on the approach path for landing,
“...flight training aircraft often fly over my property at altitudes lower than 1000 feet, as they circle back to the runway in order to practice touch & go maneuvers. I am adversely affected by the noise of these flight training aircraft, which can occur at any hour of the day. Noise from these aircraft interrupts and diminishes the enjoyment of my property.”
Hillsboro resident Ruth Warren testified that,
“Noise and pollution has eroded the livability for all of us in Hillsboro and other cities and counties in the surrounding area. I and many others wake up to early morning run-ups at the airport. There is a continuous stream of helicopters and airplanes flying at times very low near our homes during flight training. The touch-and-go training flights circle our neighborhoods and at times continue well into the evening, which disrupts sleep. I've had to sleep with earplugs. I have to turn up my television. My cat ducks when an airplane goes over low.”
David Barnes reported that,
“Despite my location 12 miles from the Hillsboro Airport, I am subject to constant overflights, mostly by single- and dual-engine propeller driven aircraft, but also helicopters and jets. Research reveals that nearly all of these flights originate at the Hillsboro Airport and that my neighborhood, though nowhere near HIO, has been targeted as a high-intensity flight training area. The constant buzz of circling and out-and-back training flights is often punctuated by treetop-level fly-overs. The noise is extremely distracting and disruptive to my work. These flights negatively impact my ability to concentrate on my highly-technical work, thus threatening my livelihood.”
The above excerpts represent only a small fraction of the many complaints lodged against the Hillsboro Airport over the years. Yet despite widespread public outcry nothing has been done to effectively ameliorate the problems. In fact it will only get worse with an additional runway.
Public Funding vs. Revenue Generation by Airport Users
The Port of Portland and the Federal Aviation Administration argue that these agencies risk the loss of state funding through the ConnectOregon program if they don't begin runway construction now, without waiting until the case is heard in the U.S. Ninth Circuit Court of Appeals. ConnectOregon is a statewide multimodal transportation program, one that the Port habitually relies upon. Indeed the Port “was instrumental in establishing the need and program design.” Since 2005, the Port has received $48.4 million for a number of rail, marine, and aviation projects. Port of Portland Planning and Development Manager, Terry Burk, contends that the Port might become ineligible for a $4 million disbursement for the third runway if they don't start building the runway this summer. But this is a specious claim at best, for if they proceed but lose the appeal - which will continue even if they commence construction within the next couple of months - they will be required to return the $4 million ConnectOregon III grant which was initially awarded in 2010.
It is worth noting at this juncture, that during a ConnectOregon hearing held in Salem on 7/17/14, a significant number of those who testified were associated with Tax Fairness Oregon. Many of these individuals asked why ConnectOregon was disbursing grants rather than offering loans. As pointed out in their email alert, the public is already paying “over half a billion dollars for prior ConnectOregon subsidies.” Their email suggested that airports should not be eligible for ConnectOregon subsidies until the state starts “collecting fuel taxes equivalent to the fuel taxes those of us who use roads pay. Plane owners currently pay either 1 or 9 cents a gallon in state fuel tax. Car owners pay 30 cents a gallon.” Tax Fairness Oregon also expressed concern over the lack of rigorous analysis in the application process, “We’ve seen stunning disregard for the public purse in gifts to businesses.”
Another troubling and shadowy side of ConnectOregon is the way the program appears to manipulate its grant leverage authority in such a way as to demonstrate complicity with the Port's plan to move forward with the HIO third runway expansion before the case can be heard in the U.S. Ninth Circuit Court of Appeals. In the end, ConnectOregon is just another avenue used by the state and the transportation industry to exploit public money on behalf of private business interests. In any case, in light of the appeal and the 4 years that have elapsed since the grant was approved, the Port's application is out of date and as such should be respectfully withdrawn.
Institute Runway Usage and Landing Fees to Generate Airport Revenue
In addition to an increase in the aviation fuel taxes, there are other avenues for generating money to operate an airport. Establishing “runway usage fees” would insure that pilots pay for all touch and go training maneuvers. The Port could also impose landing fees on all aircraft flying in and out of HIO, including those weighing less than 10,000. The money generated could cover maintenance and operating costs. In 2011, the North Bend Southwest Oregon Regional Airport, in a move toward self sufficiency, adopted landing fees for small aircraft weighing less than 10,000 pounds. In the words of Theresa Cook, the Executive Director of the airport, “I think what hurts general aviation is when you fly into another airport and you don't want to support that airport in maintaining it and making sure it stays viable for, not just the community, but for all the users across the country or whomever comes into the airport...So any good business plan says, if I have a cost here, I need to make sure that these costs are paid for by you that's using it [sic] and not by 70,000 tax payers that may not be using it.”
The City of Santa Monica also established a landing fee policy for the Santa Monica Airport. Their 4/30/13 City Council Meeting Minutes reported that the airport developed a pattern of reliance on the city's general fund money to maintain and operate the airport, “As of June 30, 2012, the Airport Fund's outstanding loan obligation to the General Fund was $13.3 million.” The minutes further pointed out that, “The Federal Aviation Administration (FAA) Airport Sponsor Assurances requires that the City maintain a fee and rental structure for Airport facilities and services that allow the Airport to operate as a self-sustaining enterprise fund.” In an effort “to achieve cost recovery” the council recommended that the fee be “applied non-discriminately to both itinerant and SMO [Santa Monica Airport] based aircraft.” The Santa Monica Airport landing fee program, which went into effect on 8/1/13, “requires every aircraft to pay a fee of $5.48 per 1,000 pounds of maximum certified gross landing weight.” Instead of exercising their option to establish landing fees for all aircraft including those that weigh less than 10,000 pounds, the Port chose to seek public subsidies to cover infrastructure costs in an effort to force the public to foot the bill even though the vast majority of people in Oregon don't even use this airport. It's time for the users of the airport to pay their own way.
The issues raised by Oregon Aviation Watch, the Petitioners and numerous other community members regarding the degradation to the environment and loss of enjoyment of property due to this airport are serious matters. Those whose rights are routinely diminished by this airport should have an opportunity for judicial review before the project moves forward, especially since the decision makers are non-elected commissioners who routinely dismiss public concerns.
The Port and FAA knew at the outset that this was a controversial project yet chose to move forward without doing an EIS. If they had taken a long overdue “hard look” at the significant impacts posed by this airport from the beginning, perhaps this litigation could have been avoided. Instead of projecting blame on community members who care about their health, livability, quality of life, and overall well-being and also support the equitable stewardship of limited public resources, the Port would be well advised to stop degrading the environment and compromising the health of the entire community by refusing to address the negative impacts posed by this airport.
 Hammill, Luke. Hillsboro Airport's Runway Construction Will Continue as FAA Rejects Watchdog Group's Request. (7/2/14). Available on-line at http://www.oregonlive.com/hillsboro/index.ssf/2014/07/hillsboro_airports_new_runway.html.
 Hillsboro Airport Parallel Runway12L/30R Final Supplemental Environmental Assessment, Vol 2, Appendix H. (2/21/14). Available on-line at http://www.portofportland.com/Notices/PDX_HIO_Fnl_Splmntl_Env_Asmnt_BLT.htm.
 Barnes vs. the City of Hillsboro and Port of Portland LUBA decision No. 2010-01. (6/30/10). Available on-line at http://www.oregon.gov/LUBA/docs/opinions/2010/06-10/10011.pdf.
 Barnes vs. City of Hillsboro and Port of Portland. Oregon Court of Appeals Opinion Number 2010011 A146145. (11/24/10). Available on-line at http://www.publications.ojd.state.or.us/docs/A146145.htm.
 Urgent Motion Under 9th CIR. R. 27-3(b). Barnes et. Al and Oregon Aviation Watch v. FAA and Port of Portland. In the United States Court of Appeals for the Ninth Circuit. (7/1/14). Pg. 22.
 Ibid. Pg. 21.
 Hillsboro Airport Parallel Runway12L/30R Final Supplemental Environmental Assessment, Volume 1, Finding of No Significant Impact and Record of Decision. Attachments. Pg. 1-2. (2/21/14). Available on-line at http://www.portofportland.com/Notices/PDX_HIO_Fnl_Splmntl_Env_Asmnt_BLT.htm.
 Ibid. Pg. 40. “USEPA has set the de minimis level for lead emissions at 25 tons per year. If the Hillsboro Airport area was designated as non-attainment for lead (meaning that measurements had identified violations of the NAAQS), expected emissions from all the forecast analyses would be considered de minimis for the project...Under the General Conformity regulations no further analysis would be required if the emissions were less than 25 tons per year. For these reasons, the FAA concluded that there would be no significant risks to children's health and welfare.”
 Ibid. Vol. 1. Appendix F. CDM Hillsboro Airport Lead Study September 1, 2110 Final Report. Port of Portland. (2/21/14). Pg. ES 1.
 Monitoring the Air for Lead Near the San Carlos Airport. U.S. Environmental Protection Agency (EPA). (June 2013). Available online at http://www.epa.gov/region9/air/airport-lead/sancarlos-lead-factsheet.pdf.
 Hillsboro Airport Parallel Runway12L/30R Final Supplemental Environmental Assessment, Vol 1, Pg. 29. (2/21/14). Available on-line at http://www.portofportland.com/Notices/PDX_HIO_Fnl_Splmntl_Env_Asmnt_BLT.htm.
 Airport Lead Monitoring. U.S. Environmental Protection Agency EPA-42F-13-032. (June 2013). Available online at http://www.epa.gov/otaq/regs/nonroad/aviation/420f13032.pdf.
 Hoyer, Marion and Pedde, Meredith. Selection of Airports for the Airport Monitoring Study. EPA Memorandum. (11/18/10) Available online at http://www.epa.gov/otaq/regs/nonroad/aviation/memo-selc-airport-mon-stdy.pdf.
 Ibid. Pg. 2-4.
 Monitoring the Air for Lead Near the San Carlos Airport. U.S. Environmental Protection Agency. (June 2013). Available online at http://www.epa.gov/region9/air/airport-lead/sancarlos-lead-factsheet.pdf.
 Federal Aviation Administration (FAA). Terminal Are Forecast (TAF) Detail Report. January 2013.
 Monitoring the Air for Lead Near the McClellan-Palomar Airport and Gillespie Field. U.S. Environmental Protection Agency. (June 2013).Available online at http://www.epa.gov/region9/air/airport-lead/sandiego-lead-factsheet.pdf.
 Federal Aviation Administration (FAA). Terminal Are Forecast (TAF) Detail Report. January 2013.
 Knapp, Alex. How Lead Caused America's Violent Crime Epidemic. Forbes. (1/3/13). Available on-line at http://www.forbes.com/sites/alexknapp/2013/01/03/how-lead-caused-americas-violent-crime-epidemic.
 Preventing Lead Poisoning in Young Children. A Statement by the Centers for Disease Control and Prevention, (August 2005). pg. 1. Available online at http://www.cdc.gov/nceh/lead/publications/prevleadpoisoning.pdf.
 Hillsboro Airport Parallel Runway12L/30R Final Supplemental Environmental Assessment, Volume 1, pg. 27 available on-line at http://www.portofportland.com/Notices/PDX_HIO_Fnl_Splmntl_Env_Asmnt_BLT.htm.
 Ibid. Vol. 2. Pg. G.1-82.
 Ibid. Vol. 2. Pg. G.3-24.
 Ibid. Vol. 2. Pg. G.3-26.
 Urgent Motion Under 9th CIR. R. 27-3(b). Barnes et. Al and Oregon Aviation Watch v. FAA and Port of Portland. In the United States Court of Appeals for the Ninth Circuit. (7/1/14). Pg. 9.
 Ibid. Pg. 7-8.
 Hillsboro Airport Parallel Runway12L/30R Final Supplemental Environmental Assessment, Vol 2, Pg. G.1-66. (2/21/14). Available on-line at http://www.portofportland.com/Notices/PDX_HIO_Fnl_Splmntl_Env_Asmnt_BLT.htm.
 Ibid. Pg. 8-10.
 Declaration of Terry Burk. In the United States Court of Appeals for the Ninth Circuit. Barnes et al and Oregon Aviation Watch v. FAA and Port of Portland. (7/15/14).
 Ibid. Pg. 2.
 Thiele, Brie. New User Fees at Southwest Oregon Regional Airport. KCBY News. (5/23/11).
 Santa Monica City Council Meeting: April 30, 2013. Agenda Item: 11-A. Available online at http://www.smgov.net/departments/council/agendas/2013/20130430/p20130430.pdf.
 Santa Monica Municipal Airport. Landing Fee Program. Available online at http://www.smgov.net/departments/airport/landing_fee_program/landing_fee_program.aspx.