LETTER: To city, regarding FAA: ‘Are we prepared? Have we done all that we can?’


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[EDITOR’S NOTE: The following is a Letter to the Editor written by Walt Bala, a Burien resident and a retired airline pilot and also former inspector for the Federal Aviation Administration:]

LAST NIGHT
At last night’s Burien City Council meeting, our City Attorney prepared a brief petition/appeal status update. But the Council asked no questions. I had planned to make a public two-minute comment but then wondered what would be the point?

There were no significant questions or assurances by the Council to the public demonstrating that the Council, City Manager, and Attorney had developed a coherent strategy to rebut FAA CATEX justifications, most of which are incongruous, false, and misleading.

Why is this important?
Here is the CATEX standard the FAA must meet and, by extension, what we have to do to expose and dispatch their assertions.

Agency action is arbitrary and capricious if agency fails to demonstrate in record that it has examined relevant data and articulated satisfactory explanation for its actions.

( 975 F.2d 736
United States Court of Appeals, Tenth Circuit. ROCKY MOUNTAIN HELICOPTERS, INC., Petitioner, v.
FEDERAL AVIATION ADMINISTRATION, Respondent. No. 90-9553. |
Sept. 18, 1992.)

The FAA will develop convoluted, complex – expect extremely complex – justifications to support their contentions. Based on the fact that they have essentially unlimited resources (e.g. fifteen FAA personnel meet with three from the City of Burien for example), they will attempt to overwhelm us with a massive, lengthy convoluted document, unintelligible to the novice.  They will inject truncated terms, without supporting substantiation, and not necessarily related to NEPA in conventional terms, i.e. safety. However in the case of safety, there are complex sets of FAA Orders that describe how one evaluates, validates, mitigates, and documents a safety issue. The current CATEX portends their strategy and is a fair warning; none of the Safety Management System safety justifications were published in the CATEX. Yet “safety” was repeatedly used and never challenged by the uninitiated. If safety is used, then that sham needs to be demolished using the FAA’s own methodology. Who has that ability and did the Council ask?

We will have limited time to respond. An effective response will need to be able to address a wide field of topics: legal, Federal flight regulations, environmental justice, air quality, and safety to name a few. Each topic is complex and requires a deep knowledge base, experience with the material, and an ability to quickly not only address the FAA’s claim, but an ability to construct an alternate argument. If we do not have the subject matter experts available and integrated into our defense team, our attorney’s ability to effectively respond to the FAA’s convolutions may be confined to essentially generic comments lacking the veracity, credibility, and depth seemingly apparent in the FAA’s arguments.

QUESTIONS:

  • How will we match the FAA’s virtually unlimited resources?
  • Who has the expertise? If we do not, how do we obtain the expertise?
  • How much time will be allocated to reply (man-hours)?
  • If we are to use outside experts, who are they, when will they be in place, and how will they communicate?
  • Will the Council have time to review the appeal submissions?
  • Is the Council going to review the appeal before submission?  Are we going to file at the last minute?  If so why?
  • Who will approve our appeal submission?
  • Who will audit the work being done?
  • How will changes be addressed?

The FAA has not responded to the detailed CATEX questions I have asked of them. I have FOIA’d records and have found their assertions unfounded (missed approach data had not been recorded as stated in the CATEX). The FAA has not explained why they omitted key qualifying phrases out of critical regulatory references.

If we cannot muster an effective defense, if we do not dissect every false assertion, if our arguments appear feeble and do not match their depth of detail and complexity, if we are not organized to respond, we may very well not prevail. Keep in mind they have virtually unlimited resources and we do not. We need to be asking ourselves questions? Are we prepared? Have we done all that we can?

I have added several attachments* that highlight some of the issues and degree of detail one may need to review some of the FAA’s assertions.

– Walt Bala

*ATTACHMENTS:

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