FAA Part 77 case in Idaho helps focus on the need to better protect valuable Airspace

part 77
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Part 77

Gem State Processing of Burley, ID planned to replace temporary stacks with permanent exhaust stacks as part of an expansion. The new stacks are 10 feet taller and have larger diameters (see red arrow on the map for location)[note: the new edifice appears to intersect the normal flight patterns]. Before it did so, the company consulted the FAA and a staff person said that a Part 77 notice would not be necessary because “because the future of the airport is unclear”; the federal agency’s representative was aware of Burley’s intention to close its airport.

The airport remains open in part because of indecision by the city, county and state leadership. Burley Municipal Airport (KBYI) is very close to the city, but its runway protection (safety) zones do not meet the updated safety standards. There is uncertainty about an alternate site. A study was completed in 2013 and the debate (cost, the deterrence of the NEPA process and the years of planning/construction) continues.

part 77

With the de facto FAA approval, the very visible stacks were constructed and their presence/obstacle was noticed. Jack Hunsaker, president of the Burley Airport Users Association, said the new stacks were considered a hazard by the pilots.

In response to the users’ complaint, the FAA initiated an aeronautic study under Part 77. Steve Engebrecht of the FAA said the study will take about 45 days to complete. The pilots have “a valid concern.”

Now that the safety review has been started, some RECOMMENDATION will be made by the FAA. Why cannot the determination of a hazard compel an obstruction, which reduces safety or efficiency, to be removed? Ordinarily, Part 77 would be invoked before construction and even then Congress did not empower the FAA to prevent such construction.

14 CFR PART 77—SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE AIRSPACE creates one of the FAA’s most extensive geographical regulatory coverage—everywhere in the United States. Oddly the authority to protect the airspace, clearly one of the FAA’s most important “assets”, creates NO power for the FAA to enforce its decisions.

part 77

Fortunately, many (if not most) states, cities and zoning/building commissions recognize the FAA’s Part 77 findings as binding and deny permission to build. The federal agency’s inability to really protect airspace is “cured” by the wisdom of local rules. Occasionally, a local politician, driven by jobs or economic development, will ignore a Part 77 determination. Such poor priorities (money over safety) may be reversed by insurance companies. The loss profile, occasioned by such an obstruction, frequently results in refusal to write the policy.

The Burley case, involving an existing tower, is a worse case. If it is found that the new stacks are risks, what can be done? The FAA cannot compel the lowering of these constructed “chimneys”! If the local zoning or building authority finds that the new height is in violation, does Gem State Processing have to incur the expense to lower the stack, even though it followed the FAA’s direction?

The answer is “NO”. In this case the FAA would simply raise the operating minima by 10″ causing an inconvenience to users of the airport but no safety risk.

There are however several more important questions to ask: Does it make sense for the FAA to get statutory authority to prevent the construction of a hazard? Is it appropriate to rely on state and local commissions to deny permission based on the FAA’s determinations? Keep in mind, filing of a request for an aeronautical study is not mandatory; there is no power to force a builder/developer to submit the required information.

Taxpayers are spending billions, as authorized by Congress, to enhance the safety and efficiency of the National Airspace. Given that commitment of NextGen to a better navigable airspace, should the Congress grant to the FAA greater power to protect this increasingly valuable (to some maybe only expensive) national asset?

The obscure Part 77 merits more attention by the House and Senate; this obscure Burley case might serve as a useful catalyst for such scrutiny.


ARTICLE: The Federal Aviation Administration will do an aeronautic study after an Idaho company increased the size of its exhaust stacks and pilots from a nearby airport raised safety concerns
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