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Minneapolis DNL 60-65 Sound Insulation Litigation Update

Minneapolis DNL 60-65 Sound Insulation Litigation Update. John E. Putnam Kaplan Kirsch & Rockwell, LLP AAAE Airport Noise Mitigation Symposium October 10, 2007. Summary of Litigation.

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Minneapolis DNL 60-65 Sound Insulation Litigation Update

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  1. Minneapolis DNL 60-65 Sound Insulation Litigation Update John E. Putnam Kaplan Kirsch & Rockwell, LLP AAAE Airport Noise Mitigation Symposium October 10, 2007

  2. Summary of Litigation • Minneapolis, Eagan, Richfield and the Minneapolis Public Housing Authority sued the Metropolitan Airports Commission in 2005 • NWA intervened shortly thereafter

  3. MSP Environs

  4. Summary of Litigation • The cities seek injunction for 5 dB Insulation Package in the DNL 60-65 contours • Claims: • Minnesota Environmental Rights Act: Protection of Quietude • Minnesota Environmental Rights Act: Enforcement of “Environmental Standard” • Mandatory duty under state law

  5. Status • Court issued order for partial summary judgment on January 25, 2007 • Order based on MERA “environmental standard” • Trial held during week of February 20, 2007 • Court heard final arguments regarding remedy and quietude on March 21, 2007 • Parties submitted proposed orders to the Court • Parties have engaged in settlement discussions • Appeals?

  6. Timeline • 1996: State Legislature calls for development of noise program • 1996: MAC adopts Noise Mitigation Program with “expansion” of sound insulation program • 1998: Final EIS for 2010 Capital Program • 2001: Part 150 Update (later withdrawn) • 2004: Part 150 Update • 2005: New Runway 17/35 Opened

  7. MERA • Allows suit “for the protection of … natural resources. . . from pollution, impairment, or destruction.” • “Quietude” is a protected natural resource • “Pollution, impairment or destruction” means conduct that: • violates “any environmental quality standard, limitation, … or permit of the state or any instrumentality, agency, or political subdivision thereof”; or • “materially adversely affects or is likely to materially adversely affect the environment.”

  8. Court’s January Decision • “The MAC has reneged on its commitment to install the five decibel reduction package in the 60 to 64 DNL contours. As such, the MAC is in violation of the standard it set in exchange for approval of the airport expansion project in 1996 and 1998.”

  9. January Decision -- Continued • “This court cannot allow the MAC to receive the benefits of a long fought over public bargain and then abandon its repeated commitments upon which so many people have relied. …To rule otherwise would approve a massive public 'bait and switch' on the homeowners and the affected cities." 

  10. January Decision -- Continued •  “The residents living near MSP are entitled to an indoor escape from the noise that they bear for the benefit of all Minnesotans.”

  11. Preemption • The Court found MERA was not preempted • Sound insulation remedy would not affect operations • “This Court is not ordering MSP to cease operating. The MAC is not ordered to stop letting planes fly at certain times. It is required to follow through with its commitment to insulate homes in the DNL 60 to 64 contour.”

  12. Issues from Trial Court Has Not Decided • Choice of contour to define area of insulation • Whether “quietude” exists in the neighborhoods absent MSP noise • Whether MSP noise significantly impairs the quietude of these neighborhoods in the DNL 60-65 • Whether 5 dB of insulation is an appropriate remedy for impairment of quietude

  13. Choice of Noise Contours: 2002, 2005, 2006 2007, 2015 • RMT 3: 2006 data 2.0 dB higher than 2006 model • RMT 4: 2006 data 1.4 dB higher than 2006 model

  14. Quietude • What is quietude? • Judge found to be average for an urban/suburban area • Edina versus Blackduck • How should quietude of neighborhoods without aircraft be determined? • ANOMS algorithms? • 9/12/2001 data? • Comparable communities? • Industry benchmarks? • Attended monitoring?

  15. Quietude: Range of Community Noise Values Minneapolis Monitors

  16. Material Impairment: Noise Events in DNL 60-64

  17. Material Impairment: Sleep Disturbance

  18. Material Impairment: Annoyance

  19. 14 12 10 8 Number of 6 PRE IN Houses POST 4 2 0 27 28 29 30 31 32 33 34 35 36 37 38 39 40 PRE IN 41 DNL 42 43 44 45 46 47 Impairment: DNL 45 Interior Level • “[R]ecognizing that there are instances when environmental regulations may not keep up with changing conditions, [MERA] provides that a plaintiff [may bring impairment claim]” Lone Oak, 624 N.W.2d at 805 • Extensive impacts below DNL 45 • Federal guidelines not based on current research • MAC did it in 65+ • Surveys – 90%+

  20. Remedy Requested • 5 dB Package • Comparison to A/C-only • Effects on sleep disturbance • Contour • 2005 Contour required by 1996 Noise Program and 1998 FEIS • 2005 Contour best fits 2006 noise data • 1,000 homes per year

  21. Should non-Minnesotans Care? • Commitments in environmental review documents may be enforceable under state law • Preemption may not affect all possible remedies under state law • What is quietude and how is it affected by man-made noise • Effects of air conditioning and 5 dB package in DNL 60-65

  22. Questions? John Putnam Kaplan Kirsch & Rockwell LLP jputnam@kaplankirsch.com (303)825-7000

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