Palomar Airport: Can the County Contain Palomar Growth?, Blog #20

The County has a new reason not to comply with Carlsbad’s Conditional Use Permit [CUP] general aviation limit: “federal preemption.”   Following the FAA lead, the County argues that Carlsbad CUP-limits vanish because the County can’t restrict Palomar air traffic.   Is the County right?      

Palomar Preemption: Part 1:  The Airline Deregulation Act  [ADA] says: No State or political subdivision shall enact or enforce any law, rule, regulation, standard relating to air carrier rates, routes, or services.  [See §105(a)(1)].

Relying on that language, the County says it can’t affect a Palomar air carrier’s rates, routes, or services.   Certainly a compelling case -- if the ADA ended as quoted above.  It doesn’t.

Palomar Preemption: Part 2: The ADA also says: Nothing in §105(a) shall be construed to limit the authority of any State or political subdivision to exercise its proprietary [ownership] powers and rights. [See §105(b)(1)].

In other words, the FAA’s rights do not automatically trump the rights the County has as owner of Palomar Airport.   Congress expressly intended to reserve certain powers to local airport owners.   But which powers?

Why the ADA Split-Personality?  Understanding why a law was passed helps to interpret it.   By the ADA, Congress tried to right a wrong: states incurring liability caused by federal actions.  

Federal law preempted counties and cities from limiting loud aircraft.  But state nuisance  and condemnation suits still required local governments to pay judgments for excessive noise.  Congress recognized the unfairness.  Why should local governments suffer for harm beyond their control?

Although the Congressional concern began with noise, the ADA does not limit local government proprietary concerns to noise issues.

How Should the ADA Apply to Palomar?   How the ADA applies depends on what FAA-imposed risks the County suffers as a Palomar owner.

As of today, neither the County nor the FAA has disclosed any study to assess whether using the 1000-foot Palomar closed landfill as a runway safety area creates safety or environmental hazards. But the County has previously estimated the cost of removing the landfill material at $80 to $100 million.  That estimate is based on hauling the material to non-hazardous waste dumps. 

If aviation fuel from a crashed plane contaminated the landfill, the removal cost could nearly double.  Dumps handling hazardous materials charge higher fees and are more distant.   Transport costs skyrocket.  And – under federal law – the County removal obligation could become mandatory, not voluntary as is now the case.

So the FAA imposes large risks on the County as a landowner if the FAA attempts to prevent the County from restricting Palomar flights to avoid environmental problems.

Recall that the Palomar landfill decomposing trash is  20 to 30 feet deep.  Several feet of sand cap the landfill.   When constructed, the landfill did not meet today’s stringent landfill requirements.  Specifically, the landfill has no liner to prevent decomposing materials and liquids entering the groundwater.

Decomposing trash makes methane gas and polluted liquids.  Palomar has a methane gas collection system that sometimes fails.  Methane gas exceeding regulatory explosive limits has been detected.  

Several years ago an underground fire burned in the landfill for about 5 months.  Also, the media has reported that a past County consultant reported inaccurate gas readings at Palomar as well as at other County airports.

What neither the FAA nor County has told the public is what happens when a large, heavy aircraft flying between 100 and 150 miles an hour crashes or slides into the landfill runway safety area.  

How much force does the crashing plane create?  How does that force affect a methane collection system that has already leaked?   How would leaking methane gas affect a crashed plane, perhaps one already on fire.  How much pollution would result from aviation fuel and fire-fighting water saturating the fill?

Turning a blind eye to the issue is trifecta foolish.  First, avoiding the issue violates the County’s CEQA obligations and fiduciary duties owed the public.  Second, avoiding the landfill issue materially increases County legal liability.

The California Tort Claims Act can immunize the County from certain liabilities. Government Code §830.6 provides that if a governmental entity carefully studies a possibly dangerous condition, analyzes alternatives, and carefully selects an alternative, the entity will be immune from subsequent accident liability even if the governmental improvement contributed to the accident or loss.

In short, the County by following G.C. §830.6 could avoid tens of millions of dollars of liability caused by a Palomar-landfill-involved crash causing death and/or serious personal injury.

Third, even if the County bought insurance to cover Palomar accidents, the insurer might still deny coverage if the facts showed that Palomar failed to fully disclose Palomar risks including those tied to the landfill. 

Can the public expect the Board of Supervisors to take an objective look at the ADA, CEQA, and liability issues?  Or is the County following an FAA Pied Piper over a cliff?