Santa Clara County Responds to FAA Informal Investigation

On December 21, McClardy sent a letter to Santa Clara County, announcing the launch of a Part 13 informal investigation. Under normal circumstances, an entity has 30 days to respond to an FAA Part 13 informal investigation, but McClardy stated that given the seriousness of the allegations made, the FAA was granting only 20 days for a response.

The county's response, sent January 11 and signed by Jeffery V. Smith, county executive, and James R. Williams, the county counsel, uses bullet points to address and refute the alleged safety violations and issues contradictory to FAA grant assurances.

The airport is located on 180 acres in east San Jose. For several years, politicians who preside over the region have called for the airport's closure, citing alleged safety issues such as lead poisoning from the use of leaded aviation fuel. In 2021, a county-funded study into blood lead levels (BLL) of local children allegedly indicated that the BLL of children who live near the airport is attributed in large to air pollution from piston-powered aircraft that utilize 100LL. 

In August 2021, the County Board of Supervisors voted to ban the sale of 100LL from county-sponsored airports, which is both KRHV and San Martin Airport (E16) located south of San Jose. The ban went into effect on January 1. The local flight schools made the switch to unleaded fuel, 94UL, before the end of 2021.

The FAA's letter of investigation alleged that the county did not request the FAA's approval to prohibit the sale of leaded fuel, and that the county improperly banned the use of leaded fuel at the county airports. 

The county responded that it was not required to obtain FAA approval, and furthermore, the county did not ban the use of unleaded fuel at county airports, but they did change the lease terms for the use of county-owned fuel tanks.

"Each of the five FBOs selling fuel at the County Airports uses a County-owned fuel tank," the letter states. "Using its proprietary authority over these County-owned fuel tanks, the County has negotiated fuel permits to require that only unleaded avgas is being sold from these tanks. Permittees are prohibited from storing, selling, or distributing leaded fuel at County Airports."

The letter continues, "The County’s goal in negotiating these terms with the FBOs is to promote the use of unleaded avgas at County Airports to protect nearby populations from lead poisoning, and that the County’s actions are “consistent with 49 U.S.C. § 47107(a), the Commerce Clause of the U.S. Constitution, the Clean Air Act, and all applicable grant assurances with the FAA, including the County’s obligation to provide access to the County Airport on a reasonable basis and without unjustly discriminatory terms."

In December 2021, the county issued a notice to air missions (NOTAM), indicating that 100LL was no longer available at either KRHV or E16, however, aviation advocacy groups such as the Aircraft Owners and Pilots Association and the California Pilots Association have expressed concerns that a pilot of an aircraft that uses 100LL might experience an emergent situation, when forced to divert due to a low fuel situation.

The nearest sources of 100LL are Norman Y. Mineta San Jose International Airport (KSJC), located 5 nm west of KRHV in Class C airspace, or at Palo Alto Airport (KPAO), located 16 nm northwest of KRHV.

In response to the allegation that the county has not demonstrated "its readiness to act as the proprietary exclusive provider of fuel at the County Airports," the county replied: "The County is not operating as a proprietary exclusive provider of fueling services at either County Airport, and any plans to do so are still preliminary in nature. The County will comply with all rules and regulations, obtain all necessary permits, and ensure that staff are properly trained if it moves forward with exercising its right to act as the exclusive provider of fueling services." 

The statement concludes, "The County does not intend—and has never stated an intention—to operate a ‘full-service FBO.’” 

“On Jan. 1 the county was not prepared,” says Jen Watson, chief flight instructor at AeroDynamic Aviation, a flight school with a 60-year history at KRHV. “They did not have the permits or the training to fuel aircraft with 94UL.”

According to Watson and Walt Gyger, president of Trade Winds Aviation, another flight school at KRHV, the flight schools made the switch to 94UL last summer as their fleets were either modified by Supplemental Type Certification or by design to be able to utilize the unleaded fuel. 

Business leases at the airport are also a course of contention, with allegations made that the county would only offer month-to-month leases to FBOs already established at KRHV. Most businesses find month-to-month leases not in their favor because there is very little time to recoup costs created by improvements, such as repainting or recarpeting a facility.

The county responds that they have entered into "new leases with prior existing FBOs to improve the financial stability of the airport," adding that "each of the existing FBOs agreed to new leases, with one-year terms."

Watson notes that the leases do not automatically renew at the end of the year, and adds the reason the flight schools were offered one-year leases was because they have Part 141 programs, and the FAA requires Part 141 schools to have a lease of at least six months in order to maintain certification.

Pilots and aviation advocacy groups have suggested that Santa Clara County officials are attempting to diminish the value of the airport in a de facto attempt to close KRHV. The FAA has stated they are against the closure of KRHV, but note that the grant assurances run out in 2031.

The county replies, "The county’s actions do not de facto close KRHV. To the contrary, KRHV is fully operational with four FBOs providing services. The only difference is that FBOs are exclusively selling unleaded avgas."

“They voted to close the airport,” counters Watson, who has attended the board of supervisors’ meetings where the airport is discussed. Watson says that during the public testimony the board of supervisors “stacked the deck against the airport” by having persons allegedly from schools and hospitals speaking in favor of airport closure “as soon as possible.”

Watson notes that persons who tried to speak in favor of keeping the airport open were either not called on or told “that’s not this meeting,” when they spoke in support of keeping the airport open.

The FAA also sent letters to the county in November 2019 and October 2021 addressing allegations of safety issues created by improper runway markings and airport signage.

The county replies, “To date, the FAA has neither objected nor responded to the county’s clear articulation of the actions it is taking to address these alleged issues.”

The county's letter concludes: "Due to the expedited timeframe for this response, we are still reviewing our records to determine whether the County has additional documents responsive to your requests. We will provide additional documents as they become available.”