U.S. Department 

of Transportation 

Federal Aviation 

Administration 

June 1 9, 20 15 

Via Fed Ex 

Mr. Steven M. Taber, Esq. 

Taber Law Group 

1 League, #60036 

Irvine, CA 92602 

Ms. Carlene V. Mcintyre 

Assistant General Counsel 

Law Department 

Office of Airport Compliance and 

Management Analysis 

The Port Authority of New York and New Jersey 

4 World Trade Center 

1 50 Greenwich Street, 25th Floor 

New York, NY 1 0007 

Mr. Arnold D. Kolikoff 

Attorney 

Law Department 

The Port Authority of New York and New Jersey 

4 World Trade Center 

1 50 Greenwich Street, 25th Floor 

New York, NY 1 0007 

Dear Mr. Taber, Ms. Mcintyre and Mr. Kolikoff: 

800 Independence Ave., SW. 

Washington, DC 20591 

RE: KENNETH D. PASKAR AND FRIENDS OF LAGUARDIA AIRPORT, INC. v. 

THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, AN INTERSTATE 

COMPACT AGENCY PURSUANT TO ARTICLE I, SECTION 6 OF THE US 

CONSTITUTION, FAA Docket No. 16-1 1-04 

Enclosed is a copy of the final agency decision and order ofthe Federal Aviation 

Administration (FAA) with respect to the above-referenced matter. 
The Associate Administrator concludes that the analysis and conclusions contained in the 

Director's Determination with regard to Grant Assurance 5, Grant Assurance 1 9, Grant 

Assurance 20, Grant Assurance 21, and Grant Assurance 34 are supported by a 

preponderance of reliable, probative, and substantial evidence, and are consistent with 

applicable law, precedent, and FAA policy. 

The Complainants' Motion for Recusal and Motion for Reconsideration or Remand are 

denied. 

The reasons for upholding the Director's Determination are set forth in the enclosed final 

agency decision. 

Sincerely, 

\fl.-

2 
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on June Q , 20 1 5, I caused to be placed in the United States 

mail (first class mail, postage paid) opy of the foregoing document addressed to: 

For Complainant 

Mr. Steven M. Taber, Esq. 

Taber Law' Group 

1 League, #60036 

Irvine, CA 92602 

For Respondent 

Ms. Carlene V. Mcintyre 

Assistant General Counsel 

Law Department 

The P�rt Authority ofNew York and New Jersey 

4 World Trade Center 

150 Greenwich Street, 25th Floor 

New York, NY 1 0007 

Mr. Arnold D. Kolikoff 

Attorney 

Law Department 

The Port Authority ofNew York and New Jersey 

4 World Trade Center 

1 50 Greenwich Street, 25th Floor 

New York, NY 10007 

Hand Delivered to: 

FAA Part 16 Airport Proceedings Docket 

FAA Airport Compliance and Management Analysis, AC0-1 00 

Office of Airport Compliance 

and Management Analysis 

3 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

Kenneth D. Paskar and Friends 

of LaGuardia Airport, Inc. 

Appellant/Complainant 

v. 

The Port Authority of New York and 

New Jersey, an Interstate Compact 

Agency Pursuant to Article I, Section 6 

Of the US Constitution 

Appellee/Respondent 

FAA Docket 16-11-04 

ASSOCIATE ADMINISTRATOR FOR AIRPORTS 

FINAL AGENCY DECISION 

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA) Associate Administrator for 

Airports on appeal filed by Kenneth D. Paskar and Friends of LaGuardia Airport, Inc., 

(Complainants) from the Director's Determination of September 27, 201 2, issued by the Director 

of the FAA Office of Airport Compliance and Management Analysis, pursuant to the Rules of 

Practice for Federally Assisted Airport Enforcement Proceedings found in 14 CFR Part 1 6. The 

Director's Determination dismissed the Complainants' allegations that the Port Authority ofNew 

York and New Jersey (Port Authority, PANYNJ, Respondent, Airport Sponsor) violated its grant 

assurances in failing to stop the construction of the North Shore Marine Transfer Station 

(NSMTS) in College Point, New York near LaGuardia Airport (LGA). 

The Complainants argue certain conclusions made by the Director were inconsistent with the 

facts and evidence in the record, arbitrary and capricious, and not in accordance with applicable 

law. In their Sumary of Argument, the Complainants claim that the Director failed to 

acknowledge that the NSMTS is an "airport hazard" and an incompatible land use, and that the 

P ANYNJ "failed to take reasonable and appropriate action ... to prevent the creation of the 
airport hazard and incompatible land use."1 The Complainants argue that "since the PANYNJ 

has the means and authority to stop the construction ofNSMTS at the College Point location and 

has failed to do so, it is in violation of Grant Assurances 1 9, 20, 21, and 34."2 The Complainants 

also suggest that the NSMTS "bars the P ANYNJ from taking certain actions to relieve 

congestion at LaGuardia. "

3 

The Complainants raise the following issues on appeal: 

a. The Director Has Ignored the Facts of the Case By Concluding that NSMTS Is 

Not in the Runway Protection Zone for Runway 31 at the Airport, and therefore 

Erroneously Concluded that the Port Authority Has Not Violated Grant 

Assurances 19, 20, 21 and 34. 

b. The Director Failed To Take Into Account the Fact that the Location ofNSMTS 

at College Point Prohibits the Airport From Implementing the Long Planned and 

Congressionally Mandated Precision Approach for Runway 31 in Violation of 

Grant Assurances 1 9, 20, 21 and 34. 

c. Even If the Director Were Correct in Determining that the NSMTS Were Outside 

the RPZ and Did Not Conflict with the Installation of a Precision Approach, It 

Creates a Hazardous Wildlife Attractant and Therefore The Port Authority Is in 

Violation of Grant Assurances 1 9, 20, 21 and 34. 

d. The Director Erred in His Determination in Finding that the Port Authority Did 

Not Fail to Take "Appropriate Action" to Protect Terminal Airspace from the 

Creation of Airport Hazards and Incompatible Land Uses in Violation of Grant 

Assurances 20 and 21.4 

The Complainants also make a motion in their Appeal requesting the FAA recuse itself from 

deciding this matter because it cannot be an unbiased and unprejudiced adjudicator. 5 

In its Reply, the Respondent states the record supports the Director's Determination that the 

PANYNJ acted in compliance with the applicable Grant Assurances 1 9, 20, 21, and 34 by taking 

reasonable efforts to eliminate or mitigate possible hazards to aircraft using LGA which would 

have been created by the NSMTS as originally proposed.6 

Upon an appeal of a Part 16 Director's Determination, the Associate Administrator for Airports 

must determine whether (a) the findings of fact made by the Director are supported by a 

preponderance of reliable, probative, and substantial evidence, and (b) each conclusion of law is 

made in accordance with applicable law, precedent, and public policy. 14 CFR § 1 6.33(e); see, 

1 FAA Exhibit 1, Item 2 I, pa ge 7 

2 FAA Exhibit 1, Item 21, pa ge 6 

3 FAA Exhibit 1, Item 2 I, pa ge 7 

4 FAA Exhibit I, Item 2I 

5 FAA Exhibit 1, Item 2 I, pa ge 2 

6 FAA Exhibit I, Item 22, pa ge 4 7 

2 
e.g., Ricks v. Millington Municipal Airport, FAA Docket No. 1 6-98-1 9, Final Decision and Order 

p. 21 (Dec. 30, 1 999). 

In arriving at a final decision on this Appeal, the FAA has reexamined the record, including the 

Director's Determination, the administrative record supporting the Director's Determination, the 

Complainants' Appeal, and PANYNJ's Reply in light of applicable law and policy. Based on 

this reexamination, the FAA affirms the Director's Determination with regard to Grant 

Assurances 5, Preserving Rights and Powers; 1 9, Operations and Maintenance; 20, Hazard 

Removal and Mitigation; 21, Compatible Land Use; and 34, Policies, Standards, and 

Specifications. The Associate Administrator concludes that, with regard to these grant 

assurances; the Director's Determination is supported by a preponderance of reliable, probative, 

and substantial evidence, and is consistent with applicable law, precedent, and FAA policy. The 

Associate Administrator concludes the Complainants' Appeal does not contain persuasive 

arguments sufficient to reverse the Director's Determination, and there is no reason for the FAA 

to recuse itself from deciding this appeal. 

This decision constitutes the final decision of the Associate Administrator for Airports pursuant 

to 14 CFR Part 1 6. 

II. SUMMARY OF THE DIRECTOR'S DETERMINATION 

On September 27, 2012, the Director concluded that the Port Authority ofNew York and New 

Jersey was not in violation of its Federal obligations as set forth in its airport grant assurances 

and existing Federal statutes. 

Although the Complainants did not allege a violation of Grant Assurance 5, Preserving Rights 

and Powers, the Director evaluated compliance with this grant assurance based on the allegation 

that PANYNJ failed to prevent construction ofthe NSMTS. As the record shows, the City of 

New York, and not the Respondent, is constructing the NSMTS. The City is not the sponsor of 

the airport. 7 Under these circumstances, the Respondent could be in violation if it does not hold 

sufficient rights and powers to comply with its Federal obligations, or if it ceded its rights and 

powers to the City. The Director appropriately found that PANYNJ did not cede, or fail to 

exercise, its rights and powers concerning the construction of the NSMTS.8 The Director found 

that on November 24, 2004, the City ofNew York and Respondent entered into an amended and 

restated agreement of lease for the operation of LGA.9 The Director found that P ANYNJ has the 

right to prevent the establishment of any structure, facility, or natural growth located on the 

airport. 10 The Director also found that the agreement reasonably protects the airport from 

obstructions and hazards to air navigation, as well as incompatible land uses adjacent to LGA. 11 

The Director found that the P ANYNJ took reasonable actions and exercised due diligence to 

7 See Paskar v. Fed Aviation Admin., No. 11-2720-ag (2d Cir. Jun. 12, 2012) ( up holdi ng FAA dismissal of the City 

ofNew York beca use it is not an a irport sponsor). 

8 FAA Exhibit 1, Item 17, pa ge 28 

9 FAA Exhibit 1, Item 17, pa ges 26, citing FAA Exhibit 1, Item 1, exhibit 55 

1° FAA Exhibit 1, Item 17, pa ge 27 

11 FAA Exhibit 1, Item 17, pa ge 27 

3 
prevent the construction of the NSMTS when the FAA issued its notice that the facility was 

presumed to be a hazard to air navigation. 12 

The Director determined PANYNJ to be in compliance with Grant Assurance 1 9, Operations 

and Maintenance.13 The Director found that PANYNJ was reasonable to assure the NSMTS did 

not present a safety hazard to LGA, or interfere with its use for airport purposes. 14 The Director 

found that P ANYNJ had a program in place, through the Amended and Restated Agreement of 

Lease of the Municipal Air Terminals, to evaluate and restrict incompatible land uses and unsafe 

development at, or around, LGA which would interfere with its use for airport purposes. 15 The 

Director found that the Respondent had taken appropriate action to prevent the NSMTS when the 

FAA issued its notice that the facility was presumed to be a hazard to air navigation. 16 The 

Director further found that PANYNJ took appropriate actions to ensure the NSMTS's 

compatibility with safe air operations including "filing a Petition with the FAA for a review of 

the Determination of No Hazard in October 2006; engaging in discussions with the City of 

New York in late 2006 and into 2007, and determining that the transfer station will be located 

outside the RPZ and outside the ICAO departure splay; and determining that the redesigned 

height also puts the structure below the slope of existing buildings, so that it will not be a 

controlling obstruction; and having the P ANYNJ' s Chief Wildlife Biologist participate as a 

member of the panel of experts tasked with the evaluation of the NSMTS and its compatibility 

with respect to bird strikes and safe air operations at LGA."

17 

The Director further found that P ANYNJ had exercised due diligence with respect to the 

NSMTS under Grant Assurance 20, Hazard Removal and Mitigation. 18 The Director relied on 

the record that the P ANYNJ ultimately determined that the proposed NSMTS was located 

outside of the existing RPZ for Runway 31. 19 The Director further found the FAA confirmed the 

proposed NSMTS was outside of the existing RPZ for Runway 31.20 

The Director also found that the P ANYNJ had exercised due diligence in evaluating the impact 

of the NSMTS on future airport plans, and that the PANYNJ had reasonably complied with its 

approved Airport Layout Plan (ALP)?1 The Director concluded that an airport sponsor is not 

obligated to pursue airport development at any cost, and that desirable improvements may not be 

feasible.22 The Director found that future plans identified on the ALP do not demonstrate a need 

to protect the airspace from the NSMTS.

23 The Director also found that because the P ANYNJ 

studied the future precision approach with the FAA, and determined that such improvements are 

not feasible due to the myriad of obstacles already in the approach to Runway 31, the P ANYNJ 

1

2 FAA Exhibit 1, Item 17, pa ge 28 

13 FAA Exhibit 1, Item 17, pa ge 28-29 

14 FAA Exhibit 1, Item 17, pa ges 28-29 

15 FAA Exhibit 1, Item 17, pa ge 29 

16 FAA Exhibit 1, Item 17, pa ge 29 

17 FAA Exhibit 1, Item 17, pa ge 29 

18 FAA Exhibit 1, Item 17, pa ges 29-46 

19 FAA Exhibit 1, Ite m 17, pa ge 34 

2

° FAA Exhibit 1, Item 17, pa ge 33 

21 FAA Exhibit 1, Item 17, pa ge 41 

22 FAA Exhibit 1, Item 17, pa ge 39 

2

3 FAA Exhibit 1, Item 17, pa ge 41 

4 
completed its due diligence under the grant assurance.24 The Director found that the FAA 

studied the existing obstructions and the NSMTS and determined that the existing mitigation 

measures provide an acceptable level of safety for air navigation and air operations at LGA. 25 In 

addition, the Director relied on FAA policy when concluding the FAA makes the final 

determination on matters related to airspace use and management and on safe and reasonable 

mitigation measures for obstacles and hazards. 26 

The Director also found that it was appropriate for P ANYNJ to have relied on the FAA 

conducting an obstruction evaluation of the proposed NSMTS on three separate occasions, and 

ultimately issuing two No Hazard Determinations.27 The Director found that the record shows 

that from November 2009 through June 2010, the F AAIUSDA panel of experts, on which the 

P ANYNJ' s Chief Wildlife Biologist participates, conducted an additional study to evaluate the 

NSMTS and its compatibility with respect to bird strikes and safe air operations at LGA.28 The 

Director found the July 2, 2010, report included findings and recommendations regarding the 

NSMTS to support the conclusion that the NSMTS is neither a hazardous wildlife attractant nor 

a hazard to air operations at LGA.29 The Director found that the evaluation of the NSMTS went 

beyond the FAA Obstruction Evaluation process to include a separate evaluation ofthe 

NSMTS's compatibility with respect to bird strikes and safe air operations at LGA.30 

The Director found that the record showed that the FAA does not consider the NSMTS to be a 

hazard. 

31 The Director determined that even if the FAA considered the NSMTS to be a hazard, 

the City ofNew York accepted the Panel Report's recommended mitigation measures to enhance 

the safety of the NSMTS with respect to air navigation and air operations at LGA.32 

The Director determined that P ANYNJ did not fail to prevent an incompatible land use near 

LGA and is in compliance with Grant Assurance 21, Compatible Land Use. 33 The Director 

found that the FAA does not consider the NSMTS to be an incompatible land use; that P ANYNJ 

took reasonable measures to prevent the establishment of the NSMTS when the FAA issued its 

notice that the NSMTS was presumed to be a hazard; participated in the F AAIUSDA study of the 

NSMTS; and relied on the conclusions reached in the FAA and USDA evaluations of the 

NSMTS with regard to the NSMTS's compatibility with safe air operations at LGA.34 

The Director found Grant Assurance 34 not applicable because the NSMTS was not funded with 

AIP.35 Nevertheless, the Director found that PANYNJ exercised its due diligence in evaluating 

24 FAA Exhibi t I, I tem 17, pa ge 41 

25 FAA Exhibi t I, I tem 17, pa ge 40. The no hazard de termina tions became final a gency ac tions, and the time period 

to c hallen ge these de termina tions has ela psed. 

2

6 FAA Exhibi t I, I tem 17, pa ge 40 

27 FAA Exhibi t I, I tem 17, pa ge 45 

2

8 FAA Exhibi t I, I tem 17, pa ge 45 

29 FAA Exhibit I, I tem 17, pa ge 45 

3° FAA Exhibi t I, I tem 17, pa ge 46 

31 FAA Exhibi t I, Item 17, pa ge 46 

32 FAA Exhibi t 1, Item 17, pa ge 46 

33 FAA Exhibi t I, I tem 17, pa ge 46-49 

34 FAA Exhibi t I, I tem 17, pa ge 49 

35 FAA Exhibi t I, I tem 17, pa ge 50 

5 
the proposed NSMTS had Grant Assurance 34, Policies, Standards, and Specifications applied.36 

The Director found that P ANYNJ reasonably relied on the expertise and guidance provided 

through the FAA and USDA determinations and findings regarding the NSMTS's compatibility 

with safe air operations at LGA.37 The Director also concluded that PANYNJ was also made 

aware ofthe FAA's conclusions regarding the NSMTS, which were directed to the City of 

New York as the proponent of the project, and those conclusions served as the foundation for 

PANYNJ's actions.3 

The Director's Determination found that PANYNJ exercised due diligence by considering the 

potential impact of the NSMTS on future airport plans, and that it did not unreasonably deviate 

from its approved Airport Layout Plan. The Director found that PANYNJ's actions with regard 

to the existing obstructions, and the NSMTS, were reasonable, and consistent with its grant 

assurance obligations.39 

III. PARTIES 

The Airport 

LaGuardia Airport is a public-use, commercial service airport located in New York, New York. 

The airport is owned by the City and operated by the Port Authority pursuant to Amended and 

Restated Agreement of Lease of the Municipal Air Terminals. The lease agreement was executed 

on November 24, 2004, and it is between the City of New York (lessor) and the Port Authority of 

New York and New Jersey (lessee). 

The airport has 357,767 annual aircraft operations and has two 7,000 foot runways.40 The 

planning and development of the Airport has been financed in part with funds provided by the 

FAA under the Airport Improvement Program (AlP), authorized by the Airport and Airway 

Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. 

Respondent 

The Port Authority of New York and New Jersey ("Port Authority," "PANYNJ" or 

"Respondent") is an Interstate Compact agency pursuant to Article 1, Section 6 of the United 

States Constitution. The Port Authority is the sponsor of LaGuardia Airport (LGA).41 

Complainants 

The first Complainant, Kenneth D. Paskar, describes himself as "an individual, residing and 

working in New York, New York. Paskar is also a licensed pilot and aeronautical user of 

3

6 FAA Exhibit 1 , Item 17, pa ge 52 

37 FAA Exhibit I , Item 17, pa ge 51 

38 FAA Exhibit I , Item 17, pa ge 52 

39 FAA Exhibit I , Item 17, pa ge 41 

4° FAA Exhibit I , Item 2, Attachme nt C 

41 FAA Exhibit I, Item 1 

6 
LaGuardia Airport." As a user of LaGuardia Airport, Mr. Paskar claims to be "directly affected" 

by the Respondent's alleged compliance violations.42 

The other Complainant, Friends of LaGuardia Airport, Inc. (FOLA) describes itself as a 

New York association that is being incorporated as a New York nonprofit corporation. FOLA's 

members consist of individuals and businesses that use LaGuardia Airport as either passengers or 

as pilots, including Mr. Paskar. As aeronautical users of LaGuardia Airport, FOLA and its 

members (such as Mr. Paskar) claim to be "directly affected" by the Respondent's alleged 

compliance violations.43 

IV. PROCEDURAL HISTORY AND BACKGROUND 

Procedural History 

On February 1 2, 20 1 1, Complainants filed a formal complaint and request for investigation 

pursuant to 14 CFR Part 1 6. The complaint was filed against the City ofNew York and the 

Respondent Port Authority for allegations related to the construction of the NSMTS. The 

complaint alleged violations of Grant Assurances 1 9, 20, 21, and 34.44 

By letter dated February 28, 201 1, the Director dismissed the original complaint without 

prejudice because the complaint was determined to be incomplete under 14 CFR Part 1 6.

45 

Additionally, the Director determined that the City of New York is not a respondent in this case 

because it is not the sponsor of LaGuardia Airport.46 

On April 18, 20 1 1, Complainants filed their amended complaint and request for investigation 

pursuant to 14 CFR Part 1 6. The Amended Complaint was again filed against the City of 

New York and P ANYNJ for allegations related to the construction ofthe NSMTS and alleging 

violations of Grant Assurances 1 9, 20, 21, and 34.47 Complainants argued that the City should 

be named a respondent in this case for the following reasons: the facts show that the City is the 

proprietor of the airport; by statute, the land "used regularly by aircraft for receiving or 

discharging passengers or cargo" constitutes an airport; and viewing the City as a 

"nonproprietor" of the airport is contrary to FAA policy, guidance and orders. 

On May 25, 201 1, the Director issued the Partial Dismissal Order and Notice ofDocketing.48 

The Partial Dismissal Order dismissed the City ofNew York from the Part 16 proceedings, 

referencing the Director's dismissal letter ofFebruary 28, 201 1 . On July 1, 201 1, Complainants 

petitioned the U.S. Court of Appeals for the Second Circuit for review of the May 25, 201 1, 

FAA Order. 49 

42 FAA Exhibit 1, Item 1 

43 FAA Exhibit 1, Item 1 

44 FAA Exhibit 1, Item 1 

45 FAA Exhibit 1, Item 2, Attachme nt A 

4

6 FAA Exhibit 1, Item 2, Attachme nt A 

47 FAA Exhibit 1, Item 1 

48 FAA Exhibit 1, Item 2 

49 FAA Exhibit 1, Item 11 

7 
On June 1 2, 20 12, via Summary Order, the Court agreed with FAA's position and found that the 

FAA's factual findings were supported by substantial evidence, and that the FAA's application 

of the law to the facts was not arbitrary or capricious, or an abuse of discretion. 50 The Court 

noted that "[t}he City is not a signatory or party to the grant agreements, nor is it a proper Part 

16 'respondent' as defined in 14 C.F.R. § 16. 3, as the City is not a 'sponsor, proprietor, or 

operator ' of the airport. "51 The Court stated that although the City owns the land upon which 

LaGuardia sits, "the Port Authority is the operator of LaGuardia and leases the landfrom the 

City. The City does not qualify as a sponsor under the terms of the grant agreement, statute, or 

regulations, because it is not an agency that receives financial assistance from the FAA. "52 

On September 27, 201 2, the Director's Determination was issued. 53 

On October 25, 20 1 2, Complainants filed Unopposed Motion for Extension of Time to File 

Appeal of Director's Determination. 54 

On January 7, 20 13, Complainants filed Second Unopposed Motion for an Extension of Time to 

File Appeal. 55 

On February 4, 201 3, the FAA granted Complainants' Second Unopposed Motion for an 

Extension of Time to File Appeal. Complainants' Appeal now was due on or before February 4, 

20 1 3, and the Respondents' Reply was due on or before April 4, 20 13.56 

On February 4, 201 3, Complainants filed their Appeal from the Director's Determination dated 

September 27, 201 2.

57 

On April 3, 20 1 3, PANYNJ filed its Reply ofthe Port Authority ofNew York and New Jersey to 

the Associate Administrator for Airports from Director's Determination. 58 

On April 22, 20 13, in Paskar v. United States Department of Transportation, the U.S. Court of 

Appeals for the Second Circuit reviewed a letter from the FAA to the City of New York in which 

the FAA agreed with the Panel Report finding that the NSMTS will be compatible with safe air 

operations at LGA so long as it is constructed and operated in accordance with the report's 

recommendations. The court found that the letter did not constitute a final agency order within 

the meaning of 45 U.S.C § 461 1 (a) and dismissed the Complainants' challenge to the letter on 

the grounds that the letter being challenged did not order the City of New York to take any 

action. 59 

5° FAA Exhibit 1, Item 11 

51 FAA Exhibit 1, Item 11 

52 FAA Exhibit 1 , Item 11 

53 FAA Exhibit 1 , Item 17 

54 FAA Exhibit 1, Item 18 

55 FAA Exhibit 1, Item 19 

5

6 FAA Exhibit 1 , Item 20 

57 FAA Exhibit 1 , Item 21 

58 FAA Exhibit 1 , Item 22 

59 FAA Exhibit 1 , Item 23, exhibit B (see also , Docket No. l0-4612 ( 2d Cir . Apr. 22, 20 13)) 

8 
On June 1, 20 13, Complainants filed a Motion for Reconsideration or Remand of the Director's 

Determination of September 27, 2012, in light of the holding in Paskar v. U S. Department of 

Transportation. 60 

On June 1 3, 20 13, PANYNJ filed its Opposition to Complainants' Motion for Reconsideration or 

Remand.61 

On June 28, 20 13, the FAA issued a Notice of Extension of Time for issuance of the Final 

Agency Decision to October 1 1, 20 13.62 

On October 1 5, 20 1 3, the FAA issued a Notice of Extension of Time for issuance of the Final 

Agency Decision to January 9, 2014.63 

On January 1 4, 20 14, the FAA issued a Notice of Extension of Time for issuance ofthe Final 

Agency Decision to April 4, 201 4.

64 

On July 22, 20 14, the FAA issued a Notice of Extension of Time for issuance of the Final 

Agency Decision to December 5, 20 1 4.

65 

On December 1 7, 2014, the FAA issued a Notice of Extension of Time for issuance of the Final 

Agency Decision to February 27, 20 15.66 

On January 7, 201 5, Complainants filed Motion to Supplement Record and Amend Appeal.67 

On January 28, 201 5, Respondent filed Opposition to Complainants' Motion to Supplement 

Record and Amend Appeal and separate Motion to Supplement Record and Amend Reply.68 

On March 25, 20 1 5, the FAA issued a Notice of Extension of Time for issuance of the Final 

Agency Decision to June 1 9, 20 1 5.

69 

On April 3, 201 5, City ofNew York and Port Authority ofNew York and New Jersey submitted 

a Change of Address. 70 

6° FAA Exhibit 1, Item 23 

61 FAA Exhibit 1, Item 24 

62 FAA Exhibit 1, Item 25 

6

3 FAA Exhibi t 1, Item 26 

6

4 FAA Exhibit 1, Item 27 

6

5 FAA Exhibit 1, Item 28 

66 FAA Exhibit 1, Item 29 

67 FAA Exhibit 1, Item 30 

68 FAA Exhibit 1. Item 31 

69 FAA Exhibit 1, Item 32 

7° FAA Exhibit 1, Item 33 

9 
Factual Background 

On November 1 0, 2004, the FAA received a Notice of Proposed Construction or Alteration 

(Form 7460-1) from the Department of Sanitation ofNew York (DSNY), in which DSNY 

indicated its plans to construct the North Shore Marine Transfer Station. The proposal described 

the location ofthe facility as North Shore Marine Transfer Station North of 3 1st Avenue West of 

122

"d Street. The proposal listed the coordinates ofthe facility as Latitude 40° 46' 1 5.35"N and 

Longitude 73° 50' 57.49"W, and indicated a total height of 1 1 0 feet (AMSL). The proposal was 

assigned Aeronautical Study No. 2004-AEA-3 1 59-0E.71 

On January 28, 2005, the FAA issued its determination of Presumed Hazard for Aeronautical 

Study No. 2004-AEA-3 1 59-0E. The determination stated that: 

The initial findings of this study indicated that the structure as described above would 

exceed obstruction standards and/or would have an adverse physical or electromagnetic 

interference effect upon navigable airspace or air navigation facilities. Therefore, 

pending resolution of the issues described below, it is hereby determined that the 

structure is presumed to be a hazard to air navigation. 

72 

On May 9, 2005, Mr. Tom Bock, Port Authority's General Manager for Airspace Modernization, 

Technology & Operational Enhancement, sent a letter to Mr. Robert Alexander, Obstruction 

Evaluation Specialist for the FAA, objecting to the construction ofthe NSMTS. In Mr. Bock's 

letter, he indicated that: 

We have reviewed the documentation regarding the proposed New York City 

Sanitation Transfer Station in Flushing, New York and have determined that it 

will have a significant impact to the operations at LaGuardia Airport. This 

structure is located only 2206feetfrom Runway 13/3I, which is one ofthe busiest 

runways in the world. At its proposed height it exceeds by over 40 feet, not only 

the 40: I surface but the 34: I surface as well .... 

The FAA requires airport operators to refrain from building any object in the 

Runway Protection Zone. This building is not on airport property, but it is clearly 

inside the RPZ. 73 

On September 1 8, 2006, the FAA completed its further study of the NSMTS and issued a 

Determination ofNo Hazard to Air Navigation for Aeronautical Study No. 2004-AEA-3 1 59-0E. 

The Determination letter states that: 

This aeronautical study revealed that the structure would have no substantial 

adverse effect on the safe and efficient utilization of navigable airspace by aircraft 

or on the operation of air navigation facilities. Therefore, pursuant to the authority 

71 FAA Exhibit I, Item 3, Exhibit C 

7

2 FAA Exhibit I, Item I, exhibit 7 

73 FAA Exhibit I, Item I, exhibit 8 

10 
delegated to me, it is hereby determined that the structure would not be a hazard to 

air navigation provided the following condition (s) is (are) met: 

As a condition to this Determination, the structure is marked and/or lighted in 

accordance with FAA Advisory Circular 7017460-1 K Change 1, Obstruction 

Marking and Lighting, red lights- Chapters 4, 5, (Red), & 12. 

This determination becomes final on October 28, 2006 unless a petition is timely 

filed. In which case, this determination will not become final pending disposition 

of the petition. 74 

On October 1 7, 2006, the Port Authority filed a Petition with the FAA for a review of the 

Determination ofNo Hazard to Air Navigation for Aeronautical Study No. 2004-AEA-3 1 59-

0E.7s 

In January 2007, the City's Department of Sanitation (DSNY) released its Comprehensive Waste 

Management Plan. The plan addressed DSNY's long-term exportation and disposal of municipal 

solid waste from New York City, which included the refurbishment of four closed transfer 

stations that were previously operated by the City. The NSMTS, located in the College Point 

section of Queens, was one of the four proposed facilities to be refurbished. 76 

On February 28, 2007, Mr. Tom Bock, the Port Authority's General Manager for Airspace 

Modernization, Technology & Operational Enhancement, sent a letter to the FAA's Airspace and 

Rules Branch withdrawing its petition concerning 2004-AEA-3 1 59-0E. The letter states: 

After discussions between the New York City Department of Sanitation and the 

Port Authority of NY & NJ, we were able to clarify the specific corner points of 

the building, allowing us the opportunity for a more detailed review of the 

potential impacts. In addition, the Department of Sanitation was able to redesign 

the building high point to a height of 100.06. 

As a result of this new information, we have determined that, the building is now 

located outside the RPZ and outside the ICAO departure splay. The redesigned 

height also puts the structure below the slope of the existing buildings, no longer 

making it the controlling obstruction. 

Based on the new height and analysis, there will not be an impact to aircraft 

operations at LaGuardia Airport if the building is constructed as described 

above. 77 

74 FAA Exhibit 1, Item 1, exhibit 9 

75 FAA Exhibit 1, Item 1, exhibit 10 

76 FAA Exhibit 1, Item 1, exhibit 5 

77 FAA Exhibit 1, Item 1, exhibit 13 

11 
The new coordinates and amended elevation for the building's high point were subsequently 

assigned Aeronautical Study No.'s 2007-AEA-1 1 63-0E, and the FAA began evaluating the 

proposal. The DSNY is identified as the proponent of the proposal. 78 

On March 1 2, 2007, Mr. John Dermody with the FAA's New York Airports District Office 

(NY ADO) sent an e-mail to Mr. Robert Alexander, FAA Obstruction Evaluation Specialist, 

regarding Aeronautical Study No. 2007-AEA-1 1 63-0E. The message inquired whether "the 

[Flight Procedures Office (FPO)] was taking the future LGA RW 31 ILS into account during 

their analysis."79 

On March 23, 2007, Mr. Robert Alexander, sent an e-mail to Mr. Don Krager, with the FAA's 

Eastern FPO with regard to Aeronautical Study No. 2007-AEA-1 1 63-0E. This message 

inquired about the lowest decision height possible for the proposed ILS approach, in comparison 

to the lowest decision height if the proposed facility was constructed. Mr. Don Krager 

responded that: 

The lowest DA would be 200ft. If the obstacle were to be built the ILS approach 

would be denied since you cannot adjust the DA on proposed obstacles. And I'm 

sure they are not going to raise the [glide slope] or displace the threshold based 

on a proposed obstacle. 

80 

On February 20, 2008, Mr. Edward Skyler, New York City Deputy Mayor for Operations, sent a 

letter to Mr. Anthony Shorris, Executive Director of the Port Authority. Mr. Skyler's letter 

stated: 

The Department of Sanitation (DSNY) initiated this process in 2004 with the filing 

of a Notice of Proposed Construction or Alteration (Form 7 460-1) and received a 

No Hazard Determination on September 18, 2006. On October 17, 2006, the Port 

Authority filed a petition with the FAA, seeking to reverse that determination 

based on concerns regarding impacts the MTS structure might have had on flight 

operations at LaGuardia Airport. To address this concern, the City agreed to 

redesign the MTS, at an estimated cost of $2 million, to reduce its maximum 

height by 12 feet. The Port Authority agreed that the redesigned MTS does not 

have any negative impacts on runway operations at LaGuardia, and withdrew its 

petition to reverse the FAA's No Hazard Determination. 

Following this agreement, the Port Authority surprised the City by submitting a 

letter to the FAA on July 2, 2007, (attached as Exhibit C) indicating that as part 

of its long term plan, it may seek to install a Category II Instrument Landing 

System (ILS) on Runway 31. Following this submission, the FAA notified the City 

that the North Shore MTS could adversely affect the installation of a Category II 

ILS, and since that time we have actively engaged the Port Authority and the FAA 

78 FAA Exhibit 1, Item 1, exhibit 22 

79 FAA Exhibit 1, Item 1, exhibit 14 

8° FAA Exhibit 1, Item 1, exhibit 15 

12 
to work-out a resolution that will enable the City to move forward with this 

critical facility. 

Our experts ' analysis concludes that the North Shore MTS, as currently designed 

will not adversely affect the existing instrument approach procedures on 

Runway 31. Moreover the analysis concludes that with slight adjustments to the 

operational range of the North Shore MTS's west gantry crane, which the City is 

willing to make, the Port Authority can install a Category I ILS at Runway 31, 

which will result in immediate and substantial improvements to airport 

operations. Our analysis also shows that establishing a Category II ILS on 

Runway 31 currently appears infeasible due to the already-existing obstacle 

environment, and a number of other technical issues (see Technical Memorandum 

at page 13). While the North Shore MTS would add to the obstacle environment, 

it would not be the controlling obstruction, nor is it likely that already-existing 

obstructions could be addressed and other technical issues resolved in a 

reasonable time frame, if at all. 81 

On May 29, 2008, Mr. Tom Bock, Port Authority's General Manager for Airspace 

Modernization, Technology & Operational Enhancement, sent a letter to Mr. Robert Alexander, 

FAA Obstruction Evaluation Specialist, rescinding the Port Authority's request for a CAT II 

approach for runway 31. Mr. Bock's letter states that: 

To assure that our analysis was accurate, we enlisted the assistance of the FAA 

Flight Procedures Office in Atlanta (A VN) .... In summary, FAA analyses 

revealed that a CAT II approach to LGA Runway 31 is impractical based on the 

myriad of obstructions that plague the Northern Queens landscape. 

Based on the results of these FAA studies and the studies performed by the City of 

New York, it is the plan of the Port Authority to continue to pursue an ILS 

approach to Runway 31 at LGA. However, our best course of action is to utilize 

an offset localizer and develop a glides/ope angle of 3. 1 degrees to obtain a 

Decision Height of280 HAT with a RVR of5,000. This will allow operations on 

Runway 31 at lower minimums than we have today and also increase safety 

within the existing obstacle environment. 82 

On September 1 9, 2008, the FAA issued a Determination of No Hazard to Air Navigation for the 

NSMTS, Aeronautical Study No. 2007-AEA-1 1 63-0E, subject to the following condition: 

Any height exceeding 100 feet above ground level (1 00 feet above mean sea level), will 

result in a substantial adverse effect and would warrant a Determination of Hazard to 

Air Navigation. 

The FAA provided the following basis for its decision: 

81 FAA Exhibit 1, Item 1, exhibit 17 

82 FAA Exhibit 1, Item 1, exhibit 20 

13 
After a complete review of the aeronautical study within the FAA, it was decided that no 

current VFR or IFR operations would be impacted by the proposal and that there is no 

cumulative impact resulting from the proposal when combined with the impact of other 

existing or proposed structures. 83 

On October 24, 2008, the FAA issued a Determination of No Hazard to Air Navigation for the 

NSMTS West Gantry Crane, Aeronautical Study No. 2007-AEA-1 1 69-0E, subject to the 

following condition: 

Any height exceeding 97 feet above ground level (97 feet above mean sea level), will 

result in a substantial adverse effect and would warrant a Determination of Hazard to 

Air Navigation. 84 

On June 1 0, 2009, Mr. William Flanagan, Manager of the FAA's Eastern Region Airports 

Division, sent a letter to Mr. Harry Szarpanski, DSNY Deputy Commissioner. The letter 

indicates in part: the FAA reviewed the U. S. Department of Agriculture (USDA) letter of 

June 4, 2009; the FAA confirmed that the NSMTS is outside ofthe RPZ for LGA; the NSMTS 

can be an example of how a fully enclosed trash transfer station and an airport can operate in 

close proximity while being compatible with safe aircraft operations; USDA Wildlife Services 

(WS) believed that the proposed NSMTS will not cause hazardous wildlife movements within 

the LGA airspace if DSNY follows the operating procedures recommended in the letter; DSNY 

established operating procedures for the NSMTS; USDA WS determined that the NSMTS is not 

inherently in conflict with safe operations at LGA provided that certain recommendations are 

met.85 

On July 9, 2009, Mr. Harry Szarpanski, DSNY Deputy Commissioner, responded to the FAA's 

Eastern Region Airports Division. Concurring with the FAA's conclusion that the NSMTS "is 

not inherently in conflict with safe aircraft operations" at LGA and agreeing to implement the 

FAA's recommendations.86 

On February 2, 20 1 0, the FAA released its final report "Evaluation ofTrash-Transfer Facilities 

as Bird Attractants." The study's objectives were to document wildlife use of trash-transfer 

facilities and to determine if the facility design or on-site management practices influence the 

facility's attractiveness to wildlife species. 87 

On April 23, 201 0, the FAA/USDA panel issued its draft report "Evaluation ofthe North Shore 

Marine Transfer Station and its Compatibility with Respect to Bird Strikes and Safe Air 

Operations at LaGuardia Airport."88 The draft report was made available for public comment. 

83 FAA Exhibit 1, Item 1, exhibit 22 

84 FAA Exhibit 1, Item 1, exhibit 23 

85 FAA Exhibit 1, Item 1, exhibit 27 

86 FAA Exhibit 1, Item 1, exhibit 28 

87 FAA Exhibit 1, Item 1, exhibit 29 

88 FAA Exhibit 1, Item 1, exhibit 6 

14 
On September 2, 20 1 0, the FAA and the USDA issued their joint, final report regarding the 

NSMTS. Section 3 .7 "Determination of Findings" states: 

The technical panel determined that Alternative 3, the {NSMTS] with changes to 

building design and operational procedures and the implementation of an 

integrated wildlife hazard management plan and program, will most likely 

provide the safest, most acceptable alternative. This alternative would greatly 

reduce the risk of a bird strike as compared to the present situation (no MTS 

facility) and the North Shore MTS as proposed under the Part 360 application. 89 

On September 3, 20 1 0, in a letter from Mr. Harry Szarpanski, DSNY Deputy Commissioner 

responds to Mr. Michael O'Donnell, Director, FAA Airport Safety and Standards, the DSNY 

agreed with the panel report's conclusion and affreed to implement the panel's recommendations 

for construction and operation of the NSMTS.9 

V. APPLICABLE FEDERAL LAW AND FAA POLICY 

The Federal role in civil aviation has been augmented by various legislative actions that 

authorize programs for providing Federal funds and other assistance to local communities for the 

development of airport facilities. In each such program, the airport sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely and efficiently and in accordance 

with specified conditions. Commitments assumed by airport sponsors in property conveyance or 

grant agreements are important factors in maintaining a high degree of safety and efficiency in 

airport design, construction, operation and maintenance, as well as ensuring the public fair and 

reasonable access to the airport. 

Title 49 U.S.C. § 47101, et seq., provides for Federal airport financial assistance for the 

development of public-use airports under the Airport Improvement Program (AlP) established by 

the Airport and Airway Improvement Act of 1982, as amended. Title 49 U.S.C. § 47 1 07, et seq., 

sets forth assurances to which an airport sponsor agrees as a condition of receiving Federal 

financial assistance. Upon acceptance of an AlP grant, the assurances become a binding 

contractual obligation between the airport sponsor and the Federal Government. The assurances 

made by airport sponsors in AlP grant agreements are important factors in maintaining a viable 

national airport system. Airport sponsors, who accept a grant, also accept conditions and 

obligations associated with the grant assurances. These include 39 specifically delineated 

obligations such as operating and maintaining the airport in a safe and serviceable condition, not 

granting exclusive rights, mitigating hazards to airspace, and using airport revenue properly. 

Airport Sponsor Assurances 

As a condition to providing airport development assistance under the Airport Improvement 

Program, 49 U.S.C. § 471 07, et seq. , the Secretary ofTransportation and, by extension, the FAA 

must receive certain assurances from the airport sponsor. Section 47 1 07(a) sets forth the 

89 FAA Exhibit 1, Item 1, exhibit 35 

9° FAA Exhibit 1, Item 1, exhibit 38 

15 
statutory sponsorship requirements to which an airport sponsor receiving Federal financial 

assistance must agree. 

The FAA has a statutory mandate to ensure that airport owners comply with these sponsor 

assurances.91 FAA Order 5 1 90.68, FAA Airport Compliance Manual, provides the policies and 

procedures to be followed by the FAA in carrying out its legislatively mandated functions related 

to federally obligated airport owners' compliance with their sponsor assurances. The FAA 

considers it inappropriate to provide Federal assistance for improvement to airports where the 

benefits of such improvements will not be fully realized due to inherent restrictions on 

aeronautical activities. 

The grant assurances raised on appeal are Grant Assurance 5, Preserving Rights and Powers; 

Grant Assurance 1 9, Operation and Maintenance; Grant Assurance 20, Hazard Mitigation and 

Removal; Grant Assurance 21, Compatible Land Use; and Grant Assurance 34, Policies, 

Standards, and Specifications. 

Grant Assurance 5, Preserving Rights and Powers 

Grant Assurance 5, Preserving Rights and Powers, implements the provisions of the 

Airport and Airway Improvement Act (AAIA), 49 U.S.C. § 47 1 07(a) and requires, in 

pertinent part, that the sponsor of a federally-obligated airport: 

will not take or permit any action which would operate to deprive it of any of the rights 

and powers necessary to perform any or all of the terms, conditions, and assurances in 

the grant agreement without the written approval of the Secretary, and will act promptly 

to acquire, extinguish or modify any outstanding rights or claims of right of others which 

would interfere with such performance by the sponsor. This shall be done in a manner 

acceptable to the Secretary. 

Grant Assurance 19, Operation and Maintenance 

Grant Assurance 19, Operation and Maintenance, implements 49 U.S.C. § 47 1 07(a)(7), 

and requires, in pertinent part, that the sponsor of a federally-obligated airport assure: 

a. The airport and all facilities which are necessary to serve the aeronautical users of the 

airport, other than facilities owned or controlled by the United States, shall be operated 

at all times in a safe and serviceable condition and in accordance with the minimum 

standards as may be required or prescribed by applicable Federal, state, and local 

agencies for maintenance and operation. It will not cause or permit any activity or 

action thereon which would interfere with its use for airport purposes. It will suitably 

operate and maintain the airport and all facilities thereon or connected therewith, with 

due regard to climatic and flood conditions. Any proposal to temporarily close the 

9

1 See, e.g., Federal Aviation Act of 1958, as amended and r ecodified, 49 U.S.C. §§ 40101, 40113, 40114, 46104, 

46105, 46106, 46110; and the Airport and Airway Improvement Act of 1982, as amended and recodified, 49 U .S.C. 

§§ 47105(d), 47106(d), 47107(k), 47107(1), 47 111(d), 47122. 

16 
airport for non-aeronautical purposes must first be approved by the Secretary. In 

furtherance of this assurance, the sponsor will have in effect arrangements for: 

(I) Operating the airport 's aeronautical facilities whenever required,· 

(2) Promptly marking and lighting hazards resulting from airport conditions, 

including temporary conditions; and, 

(3) Promptly notifYing airmen of any condition affecting aeronautical use of the 

airport. 

Nothing contained herein shall be construed to require that the airport be 

operated for aeronautical use during temporary periods when snow, flood, or 

other climatic conditions interfere with such operation and maintenance. 

Further, nothing herein shall be construed as requiring the maintenance, repair, 

restoration, or replacement of any structure or facility which is substantially 

damaged or destroyed due to an act of God or other condition or circumstance 

beyond the control of the sponsor. 

Grant Assurance 20, Hazard Removal and Mitigation 

Grant Assurance 20, Hazard Removal and Mitigation, implements 49 U.S.C. 

§ 47 1 07(a)(9), and requires that the sponsor of a federally-obligated airport: 

will take appropriate action to assure that such terminal airspace as is required to 

protect instrument and visual operations to the airport (including established minimum 

flight altitudes) will be adequately cleared and protected by removing, lowering, 

relocating, marking, lighting, or otherwise mitigating existing airport hazards and by 

preventing the establishment or creation of future airport hazards. 

For the purpose of evaluating sponsor compliance with hazard removal and mitigation 

requirements, the FAA defines "airport hazard" as "any structure or object of natural 

growth located on or in the vicinity of a public-use airport, or any use of land near such 

an airport that obstructs the airspace required for the flight in landing or taking off at such 

airport or is otherwise hazardous to such landing or taking off of aircraft. See FAA Order 

5190.6B, Appendix Z. 

Grant Assurance 2 1, Compatible Land Use 

Grant Assurance 21, Compatible Land Use, implements 49 U.S.C. § 47 1 07(a)(1 0) and 

requires that that the sponsor of a federally-obligated airport: 

will take appropriate action, to the extent reasonable, including the adoption of zoning 

laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to 

activities and purposes compatible with normal airport operations, including landing and 

takeoff of aircraft. In addition, if the project is for noise compatibility program 

implementation, it will not cause or permit any change in land use, within its jurisdiction, 

17 
that will reduce its compatibility, with respect to the airport, of the noise compatibility 

program measures upon whichfederalfunds have been expended. 

Incompatible land use includes usage that adversely affects flight operations at and near 

airports, such as obstructions to aerial navigation, noise impacts resulting from residential 

construction too close to the airport, or any other land usage that creates a negative 

impact on the operation of an airport. 9

2 

Grant Assurance 34, Policies, Standards, and Specifications 

Grant Assurance 34 applies to projects using AlP grant funds and requires that the 

sponsor of a federally-obligated airport: 

will carry out the project in accordance with policies, standards, and 

specifications approved by the Secretary including but not limited to the advisory 

__ 

circulars listed in the Current FAA Advisory Circulars for AlP projects, dated 

and included in this grant, and in accordance with applicable state 

policies, standards, and specifications approved by the Secretary. 

The FAA Airport Compliance Program 

The FAA discharges its responsibility for ensuring that airport sponsors comply with their 

Federal obligations through its Airport Compliance Program. Sponsor obligations are the basis 

for FAA's airport compliance effort. The airport owner accepts these obligations when receiving 

Federal grant funds or when accepting the transfer of Federal property for airport purposes. The 

FAA incorporates these obligations in grant agreements and instruments of conveyance to 

protect the public's interest in civil aviation and to ensure compliance with Federal laws. 

The FAA designed the Airport Compliance Program to ensure the availability of a national 

system of safe and properly maintained public-use airports that airport sponsors operate in a 

manner consistent with their Federal obligations and the public's investment in civil aviation. 

The Airport Compliance Program does not control or direct the operation of airports. Rather, it 

monitors the administration of the valuable rights that airport sponsors pledge to the people of 

the United States in exchange for monetary grants and donations of Federal property to ensure 

that airport sponsors serve the public interest. 

FAA Order 5 1 90.6B sets forth policies and procedures for the FAA Airport Compliance 

Program. It establishes the policies and procedures to be followed by FAA personnel in 

interpreting and administering the various continuing commitments airport owners make to the 

United States as a condition for receiving Federal funds or Federal property for airport purposes. 

The Order, inter alia, analyzes the various obligations set forth in the standard airport sponsor 

assurances, addresses the application of the assurances in the operation of public-use airports, 

and facilitates the interpretation of grant assurances by FAA personnel. 

92 See FAA Order 5190.6B, Airpor t Comp lia nce Ha ndbook, para. 20.1 

18 
The FAA Compliance Program is designed to achieve compliance with Federal obligations 

accepted by owners and/or operators of public-use airports developed with FAA-administered 

assistance. When addressing allegations of noncompliance, the FAA will make a determination 

of whether an airport sponsor is currently in compliance with the applicable Federal obligations. 

Consequently, the FAA will consider a successful action by the airport to cure any alleged or 

potential past violation of an applicable Federal obligation to be grounds for dismissal of such 

allegation. See Wilson Air Center v. Memphis and Shelby County Aimort Authority, FAA 

Docket 1 6-99-10 (August 30, 2001) (Final Decision and Order) at 5 (upheld in Wilson Air 

Center, LLC v. FAA, 372 F.3d 807 (6th Cir., 2004)). 

Enforcement of Airport Sponsor Assurances 

Enforcement procedures regarding airport compliance matters may be found at FAA Rules of 

Practice for Federally Assisted Airport Enforcement Proceedings (14 CFR Part 1 6), which were 

last updated on September 1 2, 20 13 (78 Fed. Reg. 561 35) and became effective November 1 2, 

201 3. 

The Complaint Process 

Pursuant to 14 CFR § 1 6.23, a person "directly and substantially affected by any alleged 

noncompliance" may file a complaint with the FAA. The complainant(s) shall "[p]rovide a 

concise but complete statement of the facts relied upon to substantiate each allegation." 14 CFR 

§ 1 6.23(b )(3). The complaint shall also "describe how the complainant was directly and 

substantially affected by the things done or omitted to be done by the respondents." 

14 CFR § 1 6.23(b)(4). 

"If, based on the pleadings, there appears to be a reasonable basis for further investigation, the 

FAA investigates the subject matter of the Complaint." 14 CFR § 1 6.29(a). In rendering the 

initial determination, "the FAA may rely entirely on the complaint and the responsive 

pleadings .... Each party shall file documents that it considers sufficient to present all relevant 

facts and argument necessary for the FAA to determine whether the sponsor is in compliance." 

14 CFR § 1 6.29(b )(1 ). 

The proponent of a motion, request, or order has the burden of proof. 14 CFR § 1 6.229(b ). A 

party who has asserted an affirmative defense has the burden of proving the affirmative defense. 

14 CFR § 1 6.229(c). This standard burden of proof is consistent with the Administrative 

Procedure Act (APA) and Federal case law. The APA provision at 5 U.S.C. § 556(d) states, 

"( e )xcept as otherwise provided by statute, the proponent of a rule or order has the burden of 

proof." See also Director, Office Worker's Compensation Programs, Department of Labor v. 

Greenwich Colleries, 512 US 267, 272 ( 1 994); Air Canada et al. v. Department of 

Transportation, 1 48 F3d 1 142, 1 1 55 (DC Cir, 1 998). Section 1 6.229(b) also is consistent with 

14 CFR § 1 6.23, which requires the Complainant to submit all documents then available to 

support his or her complaint. 

The Director's Determination will include "findings of fact and conclusions of law, accompanied 

by explanations and based upon all material issues of fact, credibility ofthe evidence, law, and 

19 
discretion presented in the record." 14 CFR § 16.31(b). A party adversely affected by the 

Director's Determination may appeal to the Associate Administrator as provided in § 1 6.33. 

14 CFR § 1 6.3 1 (c). 

The Appeal Process 

In cases where the complaint is dismissed after investigation, a party adversely affected by the 

Director's Determination may file an appeal with the Associate Administrator for Airports within 

30 days after the date of service of the initial determination. 14 CFR § 16.33(b)-(c). 

On appeal from a Director's Determination, the Complainants must demonstrate that the Director 

erred by ( 1) making findings of fact that were not supported by a preponderance of reliable, 

probative, and substantial evidence, or (2) by making conclusions of law that were not in 

accordance with applicable law, precedent, and public policy. 14 CFR § 1 6.33(e); see also Ricks 

v. Millington Municipal Airport, FAA Docket No. 1 6-98-1 9, (Dec. 30, 1 999) (Final Decision 

and Order) at 9, 21. 

Review by the Associate Administrator is limited to an examination of the Director's 

Determination and the administrative record upon which such determination was based. 14 CFR 

§ 16.33(e). "Any new issues or evidence presented in an appeal or reply will not be considered 

unless accompanied by a petition and good cause as to why the new issue or evidence was not 

presented to the Director." 14 CFR § 1 6.33(f). 

The FAA will not consider requests for rehearing, reargument, reconsideration, or modification 

of a final order without a finding of good cause. 14 CFR § 1 6.3 3(i). 

Section 1 6.24 7( a) of Title 14 CFR describes judicial review of the Associate Administrator's 

final decision and order, as provided in 49 U.S.C. § 461 1 0 or § 5 1 9(b)(4) ofthe Airport and 

Airway Improvement Act of 1 982, as amended, (AAIA), 49 U.S.C. §§ 471 06(d) and 47 1 1 1(d). 

VI. COMPLAINANTS' MOTION FOR RECUSAL 

The Complainants contend that FAA must recuse itself from deciding this matter because it 

cannot be an unbiased and unprejudiced adjudicator. The Complainants argue the FAA is unable 

to separate itself from the litigation position it has taken in a pending matter in the United States 

Court of Appeals for the Second Circuit.93 

The Complainants contend that the Director assumed certain facts (i.e., "whether the North Shore 

Marine Transfer Station (NSMTS) is in the Runway Protection Zone" and the legitimacy of the 

Panel Report) that are "part and parcel of the FAA's litigation position in 2nd Circuit 

Litigation. "

94 

93 FA A Exhibit 1, Item 21, pa ges 2-3 

94 FAA Exhi bit 1, Item 21, pa ges 3-4 

20 
The evidence and record reflects that the FAA, in different administrative processes, had 

concluded that the NSMTS is outside the existing and ultimate RPZ multiple times. The FAA 

made these findings before the Complainants filed this matter under Part 1 6.95 

The Complainants further contend that "the Director's unmitigated bias is shown where the 

determination assumes that the Panel Report carried the weight of an FAA determination, when, 

in fact, the FAA in the 2nd Circuit Litigation does not go that far and, in fact, argues that the 

Panel Report is advisory only and not an agency determination. "96 

The Complainants also argue that bias and prejudice were shown by the Director discussing that 

the City of New York was now a Respondent. 7 Because the issue had been resolved by the 2nd 

Circuit, Complainants argue there was no reason to mention it because it did not affect the matter 

with respect to the Port Authority.98 

Each of these issues presented by the Complainants was properly discussed in the Director' s 

Determination as part of the administrative record. The Director considered FAA 

determinations, made through different administrative processes before this Complaint, in 

finding the NSMTS was outside of the RPZ. The Director considered the Panel Report as an 

expert analysis of the wildlife hazard impact ofthe NSMTS on which the PANYNJ could rely. 

The Director was required to address the complaint against the City ofNew York as part of the 

procedural history and administrative record. The Complainants' arguments that bias or 

prejudice exists, merely from an adverse finding, is without merit. 

The record shows the Complainants attempted to include the City of New York as a Respondent 

in both of its Original and Amended Part 16 Complaints. The Complainants themselves made it 

part of the administrative docket for this Complaint requiring it to be addressed in the Director's 

Determination. Further, the Director also showed that the City of New York, which is a nonparty to this FAA administrative process because it is under no FAA obligations, agreed to 

implement the recommendations from the Panel Report to enhance safety at the NSMTS. 

Finally, the Complainants contend that the Associate Administrator for Airports has rubber 

stamped 1 00% of the Director's Determinations since the institution of the Part 16 regulations. 99 

The Complainants are incorrect in their assertion that all appeals have been upheld by the 

Associate Administrator. In both the Amended Complaint and the Appeal from the Director's 

Determination, the Complainants rely on a sfecific Part 16 case to support the foundation of their 

allegations of PANYNJ's noncompliance. 10 However, this case had been remanded by the 

Associate Administrator for Airports, and the Director overturned his own initial determination 

and found the airport sponsor was in noncompliance with its Federal obligations. Consequently, 

95 See FAA Exhibit I, Item I, exhibits 22, 23 

96 FAA Exhibit I, Item 2 1, pa ge 4 

97 FAA Exhibit 1, Item 2 1, pa ge 4 

98 FAA Exhibit 1, Item 2 1, pa ge 4 

99 FAA Exhibit 1, Item 2 1, pa ge 5 

100 Town of Fairview, Texas v. City of McKinney, Texas, FAA Docket No. 16-99-04, Director 's Determination on 

Remand ( Jul. 26, 2000) 

21 
the Complainant's argument that there is no objective review of a Director's Determination is 

without merit. 

Consequently, the Associate Administrator for Airports dismisses the motion for FAA to recuse 

itself from this matter. 

VII. COMPLAINANTS' MOTION FOR RECONSIDERATION OR REMAND 

The Complainants filed a Motion for Reconsideration or Remand on June 1, 20 13. 101 P ANYNJ 

filed its Motion in Opposition to the Complainants Motion for Reconsideration or Remand on 

June 1 3, 2013. 102 The Complainants argued that the U.S. Court of Appeals established that the 

Panel Report lacked any legal significance and cannot be legally be relied upon by anyone. 103 

The Complainants further contended that, inconsistent with the Second Circuit's decision, the 

Director's Determination found that parties could rely on the Panel Report. 

For background purposes, in Paskar v. United States Department of Transportation, Docket 

1 0-4612 (2d Cir., Apr. 22, 201 3), the U.S. Court of Appeals for the Second Circuit reviewed a 

letter from by the FAA to the City of New York stating that the FAA agreed with the Panel 

Report finding that the NSMTS would be compatible with safe air operations at LGA if several 

recommendations of the Panel were followed. 104 The court found that the letter did not 

constitute a final agency order within the meaning of 45 U.S.C § 461 1 (a) and dismissed the 

petition for review on the grounds that the letter being challenged did not order the City of 

New York to take any action. 105 

The Court concluded that: 

The FAA letter and inter-agency panel report did not deny a right, impose an 

obligation, or have legal consequence. It was not a "final order " and we lack 

jurisdiction to review it. The petition for review is DISMISSED.

106 

The Associate Administrator concludes there is no inconsistency between the Director's 

Determination and the Second Circuit decision. The Director's Determination found that there 

were no legal obligations imposed by the Panel Report on either the City or PANYNJ. No 

penalty could be imposed on the City if it chose to ignore the recommendations in the Panel 

Report.

107 

The Director did not conclude the Panel Report was a final agency order. Such a conclusion was 

not necessary for the Director to find that the P ANYNJ participated in the F AAIUSDA study and 

reasonably relied on the conclusions reached in the study concerning the NSMTS's compatibility 

101 FAA Exhibit 1, Item 23 

102 FAA Exhibit 1, Item 24 

103 FAA Exhibit 1, Item 23, pa ge 5 

104 FAA Exhibit 1, Item 21, e xhibit B 

105 FAA Exhibi t 1, Item 21, e xhibit B, pa ge 17 

106 FAA Exhibit 1, Item 21, e xhibit B, pa ge 17 

107 FAA Exhibit 1, Item 11 

22 
with safe air operations at LGA. 108 The Complainants' argument that parties can rely only on 

final agency orders is without merit. 

The Associate Administrator for Airports denies the Complainants' Motion for Reconsideration 

or Remand. 

VIII. ANALYSIS AND DISCUSSION 

The Complainants argue that there are "several ways in which NSMTS interferes with the safety 

of air operations at LGA in violation of grant assurances. 109 The Complainants further argue that 

"the Director's Determination failed to base his determination on the probative, reliable, and 

substantial facts and his analysis of the legal issues were not consistent with applicable precedent 

and policy."

1 10 

The Complainants' specific claims on appeal are: 

A. The Director Has Ignored the Facts of the Case By Concluding that NSMTS Is Not 

in the Runway Protection Zone for Runway 31 at the Airport, and therefore 

Erroneously Concluded that the Port Authority Has Not Violated Grant Assurances 

19, 20, 21 and 34.111 

B. The Director Failed To Take Into Account the Fact that the Location of NSMTS at 

College Point Prohibits the Airport From Implementing the Long Planned and 

Congressionally Mandated Precision Approach for Runway 31 in Violation of 

Grant Assurances 19, 20, 21 and 34!12 

C. Even If the Director Were Correct in Determining that the NSMTS Were Outside 

the RPZ and Did Not Conflict with the Installation of a Precision Approach, It 

Creates a Hazardous Wildlife Attractant and Therefore The Port Authority Is in 

Violation of Grant Assurances 19, 20, 21 and 34.113 

D. The Director Erred in His Determination in Finding that the Port Authority Did 

Not Fail to Take "Appropriate Action" to Protect Terminal Airspace from the 

Creation of Airport Hazards and Incompatible Land Uses in Violation of Grant 

Assurances 20 and 21. 114 

On Appeal, the Complainants argue, "The Director .. .failed to take into account the Port 

Authority 's failure to take (or even attempt to take) action to prevent the creation of a new 

hazard. Because the Port Authority failed to take "appropriate and reasonable action " to 

108 FAA Exhibit 1, Item 17, pa ge 49 

1 09 FAA Exhibit 1, Item 21, pa ge 25 

1 1° FAA Exhibit 1, Item 21, pa ge 26 

111 FAA Exhibit 1, Item 21, pa ge 26 

1 12 FAA Exhibit 1, Item 21, pa ge 34 

1 13 FAA Exhibit 1, Item 21, pa ge 39 

1 14 FAA Exhibit 1, Item 21, pa ge 48 

23 
protect terminal airspace from the creation of airport hazards and incompatible land uses, it is 

in violation ofGrant Assurance 19, 20, 21 and 34. The Director 's Determination offers no 

reliable, probative and substantial evidence to support its factual conclusions, and the Director 's 

Determination 's legal bases are not consistent with applicable law, precedent and FAA 

policy. "115 

The Complainants go on to state, "One of the primary roles of the airport owner and operator is 

to ensure the safety of all who use the airport. Grant Assurances 19, 20, 21 and 3 4 enforce that 

duty. There can be no doubt that NSMTS, as it is currently designed and permitted, is an 

impediment to safety at the Airport. That was the conclusion of the F AAIUSDA Panel. Panel 

Report, Ex.35, pp. 20-22. The Port Authority has not done anything to mitigate the serious risks 

posed by the construction of NSMTS. Moreover, the Director has failed to acknowledge the Port 

Authority 's duty to mitigate the risks posed by the NSMTS and raised by the Complainants in this 

matter. " 

Upon consideration of the Amended Complaint, the Director of the Office of Airport 

Compliance and Management Analysis determined that P ANYNJ is not currently in violation of 

Federal obligations under Grant Assurances 5, Rights and Powers; 1 9, Operation and 

Maintenance; 20, Hazard Removal and Mitigation; 21, Compatible Land Use; and 34, Policies, 

Standards, and Specifications: as well as Title 49 U.S.C. § 47 1 07 et seq. Arguments and 

supporting documentation submitted by the parties, which comprise the administrative record are 

reflected in the attached FAA Exhibit 1. 

In order to assure that the Complainants' Appeal is addressed on each specific issue, the 

Associate Administrator for Airports will review each issue separately as submitted by the 

Complainants. 

On appeal, the Associate Administrator for Airports upholds the Director's Determination based 

on each conclusion of law made in accordance with applicable law, precedent, and public policy. 

It is important to note that the Complainants made no argument that the Director erred in finding 

the PANYNJ had not violated Grant Assurance 5, Preserving Rights and Powers. Also, the 

Complainants made no argument that the Director erred in finding that Grant Assurance 34 is not 

applicable because the complaint did not involve an AlP funded project. Consequently, the 

specific issues on appeal as they relate to Grant Assurances 5 and 34 are waived. 

A. Whether The Director Has Ignored the Facts of the Case By Concluding that 

NSMTS Is Not in the Runway Protection Zone for Runway 31 at the Airport, 

and therefore Erroneously Concluded that the Port Authority Has Not Violated 

Grant Assurances 19. 20, 21 and 34. 

The Complainants make several arguments concerning the NSMTS: 

115 FAA Exhibit 1, Item 2 1, pa ge 10 

24 
First, it is located in the RPZfor Runway 31, which not only is a safety concern, 

but also eliminates it from AC 150/5200-33B 's reduced standards for facilities 

that are "fully enclosed. " Second, NSMTS blocks the implementation of a 

precision approach on Runway 31 with lower visibility minimums, which not only 

is a safety concern, but also has had severe economic consequences on air traffic 

in the New York area. Third, NSMTS brings yet another wildlife attractant into 

the Airport's area of operations, further complicating a situation that is already 

complex and difcult to manage. Finally, the Panel Report, which the Port 

Authority and the Director attempt to hide behind, isjlawed. 1 16 

The Complainants argue that P ANYNJ has an obligation, under its lease, to ensure that the City 

does not construct any structure in the RPZ or that penetrate any surfaces, and to remove any that 

are in the RPZ or that penetrate any surfaces. 1 17 

The record shows that on November 24, 2004, the City and the Respondent entered into an 

amended and restated agreement of lease for the operation of LaGuardia Airport. The agreement 

conveys to the Port Authority the demised premises that make up LaGuardia Airport in exchange 

for monetary consideration. With respect to this allegation, Section 2 1 .2.3 of the agreement 

states: 

The City shall use the LaGuardia Avigational Easement Areas for park purposes 

and for no other purpose whatsoever and shall not develop or use the LaGuardia 

Avigational Easement Areas so as to interfere with, impair or obstruct the safe 

and efficient operation and development of LaGuardia Airport or the safe and 

unrestricted passage of aircraft in and over the same. The City shall not erect, 

install or maintain any structure, building, tower, pole, wire or other object 

within LaGuardia Avigational Easement Areas the construction maintenance or 

operation of which would constitute a hazard to avigation in the reasonable 

opinion of the Port Authority nor place jill upon the LaGuardia Avigational 

Easement Areas or place any structures or buildings thereon except in 

accordance with plans approved by the Chief Engineer of the Port Authority, 

which approval shall not be unreasonably withheld, conditioned, or delayed. The 

City shall take all reasonably practical steps to prevent its agents, employees, 

licensees, contractors, and invitees from intruding upon, interfering with or 

damaging Equipment installed, operated or managed by or on behalf o/s the Port 

Authority or the FAA on the LaGuardia Avigational Easement Areas. 1 8 

Section 21.41 ofthe agreement states: 

The City agrees that at no time during the Term shall the Height and Use 

Restricted Properties be used or occupied at any time (i) for school house or 

similar educational purposes or (ii) for residential purposes which include but 

shall not be limited to private homes, apartment houses, hospitals, nursing homes 

116 FAA Exhibit 1, Item 2 1, pa ge 25 

117 FAA Exhibit 1, Item 2 1, pa ge 27 

1 18 FAA Exhibit 1, Item 1 7, pa ge 26, citing FAA Exhibit 1, Item 1, exhibit 55 

25 
or similar facilities, hotels or motels unless the use or occupancy of such hotel or 

motel shall have received the express prior written consent of the Port Authority, 

which consent shall not be unreasonably withheld, delayed or conditioned. JJ9 

Section 2 1 .4.2 of the agreement states: 

The City agrees that at no time during the term shall structures of any nature be 

erected, vehicles parked, other items places, or growth of natural objects be 

permitted by the City upon the Height and Use Restricted Properties which in the 

opinion of the FAA or in the reasonable opinion of the Port Authority constitute 

an obstruction to avigation nor shall any activity be permitted on the Height and 

Use Restricted Properties which in the opinion of the FAA or in the reasonable 

opinion of the Port Authority interferes with or constitutes a hazard to the 

Municipal Air Terminals or in any way interferes with avigation or 

communications serving the Municipal Air Terminals. In no event, moreover, 

shall any structure or structures be erected or growth of natural object be 

permitted upon the Height and Use Restricted Properties which shall project 

above a horizontal plane (i) at elevation 316 measured in feet above mean sea 

level at Sandy Hook, New Jersey as to the Height and Use Restricted Property 

described in Exhibit B-6 as Property 1, (ii) at elevation 212 measured in feet 

above mean sea level at Sandy Hook, New Jersey as to the Height and Use 

Restricted Property described in Exhibit B-6 as Property 2 or (iii) at elevation 

1 62 measured in feet above mean sea level at Sandy Hook, New Jersey as to the 

Height and Use Restricted Property described in Exhibit B-6 as Property 3. 120 

The Director found that the Respondent has the right to prevent the establishment of any 

structure, facility, or natural growth located on the airport if, in the opinion of the FAA or in the 

reasonable opinion of the Respondent, the proposal constitutes a Hazard to Air Navigation or an 

incompatible land use. Therefore, it appears that the agreement reasonably protects the airport 

from obstructions and hazards to air navigation, as well as incompatible land uses adjacent to the 

LaGuardia Airport. 

Additionally, the Associate Administrator's review of the Amended also found that Section 21.1 

is applicable. Section 21.1 states in pertinent part: 

During the term for which the Demised Premises are leased, the City shall not 

erect or authorize the erection of any obstructions or hazards to air navigation to 

the extent prohibited by law or by rule or regulation of the FAA, (x) upon or 

above City streets or other property belonging to the City which will project into 

the Horizontal Surfaces, Conical Surfaces, Primary Surfaces, Approach Surfaces 

or Transitional Surfaces or (j;) within the boundaries of the Runway Protection 

Z h . fr . . 121 ones, as sue may exzst om tzme to tzme. 

1 19 FAA Exhibit 1, Item 17, pa ge 26, citing FAA Exhibit 1, Item 1, exh ib it 55 

12° FAA Exhib it 1, Item 17, pa ge 26, citing FAA Exhibit 1, Item 1, exhib it 55 

121 FAA Exhibit 1, Item 1, exhib it 55, pa ge 43 

26 
Although this section was not addressed by the Director, it provides the necessary guidance with 

respect to some of the Complainants' arguments. The Associate Administrator for Airports finds 

that Section 21 .1 allows the area constituting the RPZ to change when necessary to comply with 

applicable law or FAA regulations, and does not limit the RPZ to the area described in Exhibit 

B-3 of the Amended Lease. 122 As the Director found, if the FAA had found that the NSMTS was 

within the RPZ or otherwise constituted a hazard to air navigation, the P ANJNY retained the 

authority to prevent its construction under the terms of its lease with the City. However, the 

FAA did not make that finding, thus triggering no obligation on the part of the P ANYNJ or the 

City to prevent its construction. Thus, the Associate Administrator for Airports upholds the 

Director' s Determination as it relates to this specific allegation concerning the lease. 

1. Whether the NSMTS is located in the current RPZ. 

The Complainants argue that the "Port Authority and the FAA have on several occasions stated 

that the NSMTS is within the boundaries of the current RPZ. "

123 The Complainants provide 

several exhibits supporting this argument. The Complainants contend that after the P ANYNJ 

withdrew its Petition for Review of the FAA's Determination of No Hazard to Air Navigation, 

Aeronautical Study No. 2004-AEA-3 1 59-0E, the "Director ignored the facts that the 

coordinates of the NSMTS did not change enough to move the building from a position inside the 

RPZ to a place outside the RPZ . .. "

124 The Complainants argue that the NSMTS is closer to 

Runway 31 than is described in the No Hazard Determination. 125 The Complainants contend that 

"if NSMTS was considered by the Port Authority to be within the RPZ in its Petition for Review 

in 2006 and by the FAA in 2007, it also must be within the RPZ using the coordinates that the 

Port Authority supplied to the FAA in 2007."

126 The Complainants contend that neither "the 

PANYNJ nor the Director offered any explanation for this discrepancy. "

127 

In its Reply to the Appeal, the P ANYNJ argues that the Director made the correct determination 

based on the evidence in the record that the NSMTS will be outside the RPZ. 128 The Respondent 

contends that the Complainants rely on statements that are contradicted and superseded by later 

documents in the record. 129 

122 The Compla ina nts filed a Mot io n to Suppleme nt Record a nd Ame nd Appeal w ith Exhib it A, the Amended Lease 

B-3, which ide nt ified the existing RPZ to Runway 31 at LGA on the date of the e xec ut ion of the Amended Lease of 

November 24, 2004 . The Motio n was docketed on Ja nuary 16, 2015 . The Respo nde nt filed its Oppositio n to the 

Compla ina nts' Mo tion to Sup pleme nt Record a nd Ame nd the Appeal a nd addit io nal Respo ndent 's Motio n to 

Supplement Record a nd Ame nd Re ply docketed on Ja nuary 29, 2015. The Compla ina nts ar gue that the Amended 

Lease exhib it B-3 is co ntrolling as defined in the Ame nded Lease rather tha n the terms that sho uld be inter pr eted 

thro ugh the use of other doc uments a nd guida nce. However , the Ame nded Lease Section 21.1 provides that ther e 

ca n be cha nges to the RPZs. The Compla ina nts also previo usly had submitted the e nt ire Ame nded Lease w ith all of 

the Exhibits attached, includi ng Exhib it B-3. See FAA Exhib it 1, Item 1, exh ib it 55 . For this r easo n, both the 

Compla ina nts' a nd Respo nde nt 's Mot io ns to Sup pleme nt Record a nd Amend the Appeal ar e de nied. 

123 FA A Exhibit 1, Item 21, pa ge 28, citing FAA Exhib it 1, Item 1, Exhibits 8, 10, 39 

124 FA A Exhib it 1, Item 21, pa ge 29 

125 FA A Exhib it 1, Item 21, pa ge 30 

126 FA A Exhib it 1, Item 21, pa ge 30 

127 FA A Exhib it 1, Item 21, pa ge 30 

128 FA A Exhib it 1, Item 22, pa ge 28 

129 FAA Exhibit 1, Item 22, pa ge 29, citing FAA Exh ibit 1, Item 1, Exhibits 13, 22 

27 
The record reflects that the City provided additional detailed information to the Respondent 

pertaining to the proposed NSMTS. The Respondent was able to determine that the proposed 

facility was outside of the RPZ for Runway 31 and would not present an adverse effect on air 

operations at LGA. The Respondent stated: 

After discussions between the New York City Department of Sanitation and the 

Port Authority of NY & NJ, we were able to clarify the specific corner points of 

the building, allowing us the opportunity for a more detailed review of the 

potential impacts. In addition, the Department of Sanitation was able to redesign 

the building high point to a height of 1 00. 06 [feet}. ... 

As a result of this new information, we have determined that the building is now 

located outside the RPZ and outside the ICAO departure splay. The redesigned 

height also puts the structure below the slope of existing buildings, no longer 

k

. . h ll" b . 130 ma zng zt t e contra zng o structwn. 

Thus, the Director relied on an FAA analysis and determination that the NSMTS is not in the 

RPZ rather than on other statements made prior to completion of that formal analysis. The 

Director's finding that the Respondent exercised due diligence in determining the height and 

comers ofthe NSMTS and then reasonably withdrew its objections is supported by the record. 

The Director's finding of fact was based on a preponderance of evidence in the record. 

Consequently, the Associate Administrator upholds the Director's finding that the record 

supports that the NSMTS is outside the existing RPZ. 

2. Whether the NSMTS is in the Ultimate RPZ. 

The Complainants argue that "[ e ]ven if the NSMTS is not within the current RPZ, it 

unquestionably is within the future planned (or "ultimate '') RPZ. "

131 The Complainants contend 

that the airport's long-term plan for a Category I or II ILS would render the NSMTS in the future 

RPZ. 132 The Complainants contend that the Director ignored that a precision approach would 

1. . LGA 133 re 1eve congestiOn at . 

The Complainants contend that various exhibits show that P ANYNJ reco�nized and planned that 

the RPZ will go out to 2500 feet consistent with FAA advisory circulars. 1 4 The Complainants 

also argue that even if the NSMTS is technically outside the RPZ, it is very close to the RPZ and 

should be treated as such because "safety concerns do not magically disappear once the enclosed 

transfer station is outside the RPZ."135 

13° FAA Exhibit 1, Item 1, exhibit 13 

1

3

1 FAA Exhibit 1, Item 2 1, pa ge 30 

132 FAA Exhibit 1, Item 2 1 , pa ge 30 

133 FAA Exhibit 1, Item 2 1, pa ge 31 

134 FAA Exhibit 1, Item 2 1, pa ge 32 

135 FAA Exhibit 1, Item 2 1, pa ge 33 

28 
The Respondent contends that the FAA studied the feasibility of installing a glideslope antenna 

on Runway 31 to accommodate a Category I ILS approach but "concluded that no suitable 

location exists for the installation," rendering a Category 1 approach not feasible with existing 

technology."

136 

The Respondent also contends that "even if CAT I approach were feasible, a CAT II approach to 

Runway 31 would be infeasible irrespective of the presence of the NSMTS because of the 

presence of preexisting obstructions. Seven existing obstructions penetrate the 34:1 instrument 

approach surface to LGA Runway 31. "

137 

The Director found that the Respondent's approved ALP does not depict future plans for 

visibility minimums below 3/4-mile for Runway 31. Thus, the approved ALP correctly depicted 

the ultimate RPZ for Runway 31 to be 1, 700 feet in length. The proposed NSMTS is located 

approximately 2,200 feet from the end ofthe runway. This is within FAA standards considering 

that the FAA and the Respondent determined that visibility minimums below 3/4mile were not 

feasible at LGA. 

The Record shows the FAA determined that the proposed NSMTS is situated outside the 

ultimate RPZ for Runway 31. The Record shows that existing obstructions and ILS systems 

requirements prevent the establishment of a CAT II approach. The Complainants submitted a 

letter from the owners of one of the obstructions that suggest that its obstruction could be 

lowered for "significant costs, which must be reimbursed to Ferrara Bros."

138 However, the 

Respondent also provided other evidence of existing obstructions and issues that would prevent a 

CAT II approach or visibility minimums of less than 3/4 mile, regardless of the NSMTS. 139 

As discussed earlier, the Record shows the Director reasonably determined that after the City 

provided additional specific information pertaining to the proposed NSMTS, the Respondent was 

able to determine that the proposal was outside of the RPZ for Runway 31 and would not present 

an adverse effect on air operations at LGA, and subsequently withdrew its petition. Based upon 

the revised information provided by the City, a new aeronautical study was initiated by the FAA 

that resulted in a Determination of No Hazard to Air Navigation. Thus, the FAA confirmed that 

the location of the NSMTS was outside of the current and ultimate RPZ for Runway 31. 

Furthermore, the Director found that although the P ANYNJ was interested in having a precision 

instrument approach, it could not reasonably meet the technical and regulatory requirements to 

install a glidescope. 

Consequently, the record supports the Director's finding that the FAA determined that NSMTS 

is outside the current and ultimate RPZ; is not located within the P ANYNJ leasehold at LGA, 

and also is not located on any other airport sponsor-owned properties. The record also shows 

that the FAA and P ANYNJ studied and determined that a precision approach to Runway 31 at 

136 FA A Exhib it 1, Item 22, pa ge 11 citing FAA Exhib it 1, Item 3, Attac hme nt C 

137 FA A Exhib it 1, Item 22, pa ges 11-12, citing FA A Exhibit 1, Item 3, Attachment A 

138 FA A Exhibit 1, Item 1, exhib it 18 

139 FA A Exhib it 1, Item 3, Exhib it A 

29 
LGA could not reasonably be installed. Thus, the Complainants have not demonstrated that the 

Director's finding was not based on a preponderance of evidence in the record. 

Thus, the Associate Administrator for Airports upholds the Director's Determination with 

regards to this specific issue on appeal. 

3. Whether the Port Authority Has Violated Grant Assurances 19, 20, 2 1, and 34. 

The Complainants argue that the PANYNJ's "abject failure to keep NSMTS out of the RPZ 

(current and planned RPZ) or take any mitigation measures is a violation of its duties and 

obligations under Grant Assurances 19, 20, 21, and 34. "

140 

FAA policy regarding Grant Assurance 19 does not impose obligations with respect to property 

not owned by the airport sponsor. The Port Authority cannot be found to have violated Grant 

Assurance 19 because the construction of the NSMTS by the City of New York is off airport 

property. 

As discussed above, the record supports the Director's finding that the FAA determined that 

NSMTS is outside the current and ultimate RPZ; not located within the P ANYNJ leasehold at 

LGA, and also is not located on any other airport sponsor-owned properties. The record also 

shows that the FAA and P ANYNJ studied and determined that a precision approach to 

Runway 31 at LGA could not reasonably be installed. Thus, the Associate Administrator for 

Airports cannot reverse the Director' s Determination based on the record. 

B. Whether the Director Failed To take into Account the Fact that the Location of 

NSMTS at College Point Prohibits the Airport from Implementing the Long 

Planned Precision Apoach for Runway 31 in Violation of Grant Assurances 19, 

20, 2 1, and 34. 

The Complainants contend that "by locating NSMTS at College Point, it will not be possible to 

institute a precision approach for Runway 31 with visibility minimums that can take advantage 

ofthe approach. "

141 The Complainants also contend that the "FAA knew that NSMTS was a 

hazard to the airspace and would block the implementation of a precision approach. "

142 The 

Complainants state that PANYNJ has a long history of restricting new construction that limit the 

use of airspace around LGA including "the P ANYNJ's successful efforts with regard to the 

redevelopment of the historic RKO Keith movie theatre in Flushing in 2005 with regard to the 

redevelopment of the Flushing Municipal Parking Lot in 2006."143 The Complainants contend 

that the P ANYNJ is allowing a new obstacle to improving operational capabilities rather than 

1. . . h 144 e 1mmatmg t em. 

1

4° FA A Exhibit 1, Item 21, pa ge 34 

1

4

1 FAA Exhibit 1, Item 21, pa ge 34 citing FAA Exhibit 1, Item 1, exhibit 19 

1

42 FA A Exhibit 1, Item 21, pa ge 3 5 

1

43 FAA Exhibit 1, Item 21, pa ge 35 citing FAA Exhibit 1, Item 1, exhibit 10, pa ge 3 

144 FAA Exhibit 1, Item 21, pa ge 3 7 

30 
The record shows that after the City submitted its initial proposal for the NSMTS, the 

Respondent wrote to the FAA formally objecting to the proposal. 145 Again, after the FAA 

subsequently issued its Determination of No Hazard to Air Navigation for Aeronautical Study 

No. 2004-AEA-3 1 59-0E, the Respondent wrote the FAA objecting to the proposal and filing a 

petition for the FAA to review the study.

146 

The record also reflects that after the City provided additional information pertaining to the 

proposed NSMTS, the Respondent was able to determine that the proposal was outside of the 

RPZ for Runway 31 and would not present an adverse effect on air operations at LGA. 147 The 

Respondent stated: 

After discussions between the New York City Department of Sanitation and the 

Port Authority of NY & NJ, we were able to clarifY the specific corner points of 

the building, allowing us the opportunity for a more detailed review of the 

potential impacts. In addition, the Department of Sanitation was able to redesign 

the building high point to a height of 100. 06 [feet]. ... 

As a result of this new information, we have determined that the building is now 

located outside the RPZ and outside the ICAO departure splay. The redesigned 

height also puts the structure below the slope of existing buildings, no longer 

making it the controlling obstruction. 148 

Thus, only after the completion of its due diligence, did the Respondent withdraw its objections 

to the NSMTS and its petition to review the Determination of No Hazard to Air Navigation for 

Aeronautical Study No. 2004-AEA-3 1 59-0E. Subsequently, the FAA confirmed that the 

proposed NSMTS does not pose a Hazard to Air Navigation when it issued its Determination of 

No Hazard to Air Navigation on September 1 9, 2008. Additionally, the FAA, in Mr. William 

Flanagan's June 1 0, 2009, letter to Mr. Harry Szarpanski, confirmed that the location of the 

NSMTS was outside of the RPZ for Runway 31. 

As noted above, after three years of efforts studying the issue, "the FAA and the P ANYNJ have 

been unable to find a suitable location that will permit all weather operations and enable facility 

staffto clear snow without impacting a CAT I glide slope antenna."

149 Although the PANYNJ 

was interested in having a precision instrument approach, it could not reasonably meet the 

technical and regulatory requirements. 

The record shows that the FAA determined that a precision approach to Runway 31 at LGA is 

not reasonably possible at the airport. Thus, the Associate Administrator for Airports cannot find 

any reliable evidence that P ANYNJ had violated any grant assurances when it relied on the FAA 

determination that the NSMTS was outside of the RPZ. 

145 FAA Exhibit 1, Ite m 1, exhibit 8 

14

6 FA A Exhibit 1, Ite m 1, exhibit 10 

147 FA A Exhibit 1, Ite m 1, e xhibit 13 

14

8 FA A Exhibit 1, Ite m 1, exhibit 13 

149 FAA Exhibit 1, Ite m 17, pa ge 39 citing FAA Exhibit 1, Ite m 3, Atta chment C 

31 
C. Whether the NSMTS Creates a Hazardous Wildlife Attractant and Therefore the 

Port Authority is in Violation of Grant Assurances 19, 20, 2 1, and 34. 

1. Whether the Director failed to take into account that locating NSMTS at College 

Point fails to comply with FAA Advisory Circulars 1 50/5200-338 and 150/5200-

34A and therefore violates grant assurances 19, 20, 21, and 34. 

a. Whether the NSMTS is not a "fully enclosed" waste transfer station because 

it is part of a much larger garbage facility and trucks using the facility are 

not "enclosed." 

The Complainants contend that the NSMTS is not a "fully enclosed" waste transfer station 

because it is a much larger garbage facility, and trucks using the facility are not "enclosed."150 

The Complainants allege that the NSMTS is located on the same City-owned lot as a garbage 

depot through which hundreds of trucks enter and exit every day. Complainants allege garbage 

trucks frequently enter the depot without first being cleaned and are serviced while the doors to 

the depot remain open. The Complainants contend that "when considered in conjunction with 

one another, the NSMTS and the garbage depot do not constitute a fully enclosed 'facility ' under 

AC 150!5200-33B."

151 

The Complainants also allege that "the garbage trucks bringing refuse to NSMTS will not be 

'enclosed vehicles. "'152 The Complainants allege that "the City does not own 'enclosed' vehicles 

and that based on information and belief, that at least 10% of the garbage hauled to the NSMTS 

will be from private contractors, who most certainly will not be using enclosed vehicles. "

153 

P ANYNJ responds that the Complainants arguments that the NSMTS will not be fully enclosed 

are based on allegations that are not supported by the record. 154 

The Complainants' allegations concerning the existing garbage depot were not supported by the 

facts in the record before the Director. Additionally, the statements may be moot as the NSMTS 

at issue in this Complaint is replacing by conversion to a waste containerization transfer station 

at the existing facility. 155 

The report provides information that an existing transfer facility is being converted into a new 

NSMTS facility that is mitigating any wildlife hazards in accordance with the alterative 

recommendations in the Panel Report. In addition, a DSNY garage for its vehicles currently is 

co-located on the same property. 

The Complainants' additionally allege that "the plans call for up to twenty unenclosed trucks, 

loaded with garbage and exposed garbage clinging to their sides, to queue outside NSMTS on 

15° FAA Exhibit 1, Item 21, pa ge 41-42 

151 FAA Exhibit 1, Item 21, pa ge 41 

15

2 FAA Exhibi t 1, Item 21, pa ge 42 

1

53 FAA Exhibit 1, Item 21, pa ge 42 

154 FAA Exhibit 1, Item 22, pa ge 37 

1

55 F A A Exhibit 1, Item 1, exhibit 5, pa ge 1 

32 
the ramp waiting to enter the facility. "

156 The Panel Report specifically stated that "the two-lane 

access/egress ramp will have an inbound lane with space for queueing up to 20 collection 

vehicles, " and those vehicles "will not be allowed to idle for longer than three minutes. "

157 

The Director found the P ANYNJ reasonably relied on the conclusions and mitigations in the 

F AAIUSDA panel report, and the Associate Administrator concludes that finding was based on a 

preponderance of evidence in the record. Thus, the Associate Administrator for Airports 

dismisses this specific issue on Appeal. 

b. Whether the NSMTS does not meet the AC 150/5200-33B's definition of 

"enclosed facility" because it does not filter odors. 

The Complainants allege that the NSMTS does not use a filtration system for odor control but 

rather "negative air pressure" and "odor neutralizer" to control odors. 158 The Complainants 

contend that this is not sufficient under AC 1 50/5200-33B for consideration as a ''fully enclosed 

trash transfer facility. "

159 

The Respondent contends that the Complainants' arguments are based on a narrow interpretation 

of Advisory Circular 1 50/5200-33B. 160 The Respondent further argues that the Complainants 

ignore the evidence in the record of the various building systems which will be used to control 

odors. 161 

Advisory Circular 1 50/5200-33B states that facilities "that do not control odors by ventilation 

and filtration systems (odor masking is not acceptable) do not meet the FAA 's definition of fully 

enclosed trash transfer stations. " 

The record includes the January 2007, City of New York Department of Sanitation Engineering 

Report for the Marine Transfer Station, part 360 Permit Application that provided there are 

building systems that will provide odor control. They include a dust control system suspended 

above both the tipping and loading floors; hoses available on all levels for dust control and water 

sprayed on the floor during dry periods; paved surfaces swept daily; containerizing all solid 

waste within 24 hours of tipping to minimize odors; all equipment washed down routinely; 

regular air changes to circulate air within the processing building; air deodorizing system; and all 

building doors kept closed when collection vehicles are not entering or exiting the building; 

building ventilation maintained under negative pressure, which will maintain dust and odors 

inside the enclosed building; HVAC system to maintain the consistent air changes per hour; and 

when access doors open, supplementary roof exhaust fans to maintain the buildings negative 

pressure. 162 

156 FAA Exhibit 1, Item 21, pa ge 42 

157 FAA Exhibi t 1, Item 1, exhibi t 5, pa ge 30 

1

5

8 FAA Exhibi t 1, Item 21, pa ges 42-43, citing FAA Exhibi t 1, Item 1, exhibi t 5 

1

59 FAA Exhibi t 1, Item 21, pa ge 42 

16° FAA Exhibi t 1, Item 22, pa ge 37 

161 FAA Exhibit 1, Item 22, pa ge 38 

16

2 FAA Exhibi t 1, Item 1, exhibi t 5, pa ges 70-72 

33 
The Panel Report described the facility as designed for indoor transfer of solid waste into sealed, 

cleaned leak-proof containers. 163 No solid waste will be transferred or stored outside of the 

building. 164 Finally, the Panel Report described that: 

All waste will be processed in an enclosed building that maintains negative air 

pressure to prevent odors from escaping while building doors are open. In 

addition, exhaust air from the transfer station building will be treated using an 

d l

. . 165 o or neutra zzzng system. 

The Director found that the NSMTS was compatible with safe operations at LGA because it is a 

fully-enclosed trash transfer station and is not on airport property or within the RPZ, and that the 

P ANYNJ reasonably relied on the conclusions reached in the Panel Report with regard to this 

compatibility. Based on the record, the Complainants are not able to persuade the Associate 

Administrator for Airports that the facility is not fully enclosed. The technical experts who 

drafted the Panel Report found that the NSMTS design incorporated alternative methods of odor 

control (specifically use of an odor neutralizing system) for it to be considered a fully enclosed 

facility. FAA Advisory Circulars are advisory in nature and permit alternatives to achieve 

desired results, and the Panel Report experts found, after reviewing the details of the NSMTS 

proposal, that the facility incorporated an alternative means of odor control that sufficiently 

achieved the desired results of compatibility with safe airport operations. Consequently, the 

Complainants have not been persuasive in their argument that the Director erred in relying on the 

Panel Report to conclude that the NSMTS was fully enclosed. 

c. Since the publication of AC 150/5200-33B, the FAA has concluded that 

whether a transfer station is "fully enclosed" or not has no bearing on its 

attractiveness to birds. 

The Complainants argue that the NSMTS will constitute a hazardous wildlife attractant 

regardless of whether it is fully enclosed because there is an "existing presence of substantial 

numbers of birds" at the location and a recent FAA study found that whether a facility is open or 

closed did not make a difference in terms of the facility's ability to attract birds.166 

Complainants urge the FAA to "reconsider its statement in AC 1 50/5200-33B that 'fullyenclosed facilities' are 'generally compatible' with safe airport operations."167 

The Respondent argues that the Evaluation ofTrash-Transfer Facilities as Bird Attractants 

Report is not certification policy. 168 The Respondent further contends that the Evaluation 

Report's conclusion supports the Panel Report. The conclusion states in part: 

Consequently, trash-transfer facilities in close proximity to airport environments 

should be evaluated on an individual basis to determine whether or not they are 

163 FAA Exhibit 1, Item 1, exhibit 35, p age 15 

164 FAA Exhibit 1, Item 1, exhibit 35, p age 16 

165 FAA Exhi bit 1, Ite m 1, e xhibit 35, p age 16 

166 FAA Exhibit 1, Item 21, p age 43-44, citing FAA Exhibit 1, Item 1, exhibit 29 

167 FAA Exhi bit 1, Ite m 21, p ages 43-44 

168 FAA Exhi bit 1, Ite m 22, p age 40 

34 
attractive to or influence the movement patterns of wildlife and if the location of 

such a facility increases the risk to safe aircraft operations. Appropriate wildlife 

control activities could be conducted at trash-transfer facilities to reduce the 

wildlife attraction and thus decrease the risk of bird strikes associated with those 

facilities. 169 

The Panel Report is consistent with the conclusion ofthe Evaluation ofTrash-Transfer Facilities 

as Bird Attractants. The Panel Report evaluated the NSMTS on an individual basis and 

concluded that the report's recommended design changes and operational procedures will 

achieve compatibility between the NSMTS and LGA with respect to wildlife and safe air 

operations. The City agreed to implement those recommendations in the construction and 

operation of the NSMTS. 

The Director's Determination reasonably gave greater weight to the specific analysis of the 

NSMTS in the Panel Report than to general statements about such facilities in the Evaluation 

study. The Director's finding that the NSMTS, subject to recommended mitigations, does not 

pose a wildlife hazard is supported by a preponderance of evidence in the record. 

Consequently, the Associate Administrator for Airports does not find the Complainants' 

argument concerning this specific issue persuasive to overturn the Director Determination. 

d. Whether human factors will keep the NSMTS from being compatible with 

safe air operations. 

The Complainants contend that enclosed facilities are '"generally compatible ' depends on the 

assumption that that these facilities will [be} operated properly."170 The Complainants contend 

that human factors enter the equation, and the result is an increased risk to safe air operations 

based on photo evidence of the Staten Island Rail Transfer Station in the Panel Report and one of 

the Complainants' experts as well as testimony from another state's administrative process. 171 

The Respondent contends that the Complainants arguments are based on "mere speculation, not 

evidence."172 The Respondent argues that the Complainants rely on mere risk of human error, a 

single photograph of a different DSNY transfer facility, and a description of the operations of 

another state's trash transfer station to support the inference that the NSMTS will not be operated 

as a fully enclosed facility. 1 73 

Although the Associate Administrator understands the Complainants' argument on human 

factors, such speculative evidence is not reliably persuasive to conclude that P ANYNJ is not in 

current compliance with its Federal obligations. 

169 FAA Exhibit 1, Item 22, pa ge 40, citing FAA Exhibit 1, Item 1, exhibit 29, pa ge 15 

17° FAA Exhibit 1, Item 22, pa ge 44 

171 FAA Exhibit 1, Item 22, pa ges 44-45 

172 FAA Exhibit 1, Item 22, pa ge 41 

173 FAA Exhibit 1, Item 22, pa ge 41 

35 
Consequently, the Associate Administrator for Airports dismisses this specific issue in the 

Complainants' Appeal. 

2. In considering whether NSMTS is incompatible with safe airport operations, the 

FAA must consider the totality of circumstances. 

The Complainants argue that the "Director failed to take into account that the totality of 

circumstances surrounding its location must be considered. "174 The Complainants contend that 

the NSMTS is located on the waterfront, which serves as a significant attractant for a variety of 

hazardous bird species, and that there are significant numbers of gulls and other large birds 

already visible at the NSMTS construction site. 175 The Complainants also contend that the Panel 

Report warned of significant bird activity on and near the NSMTS site and concluded that the 

NSMTS, as originally designed and permitted, represents a substantial risk of hazardous bird 

activity. 176 The Complainants argue that NSMTS is located "next to mudflats, Flushing Bay, an 

existing garbage depot, and numerous buildings that provide opportunities to perch" and "would 

only add to the already existing risk of bird strikes."177 

In its Reply, the Respondent contends that "the Panel Report specifically took these 

[environmental] factors into account in reaching its conclusion."178 

The Director's Determination was reasonable to consider the findings of the Panel Report in 

evaluating the Respondent's actions. The Panel Report specifically considered the environment 

of the NSMTS and LGA and recommended actions to mitigate the risk presented by wildlife. 

The record shows those mitigations were accepted by the City of New York and the 

Respondent. 179 The Complainants have not presented arguments on appeal that the Director's 

findings were not based on a preponderance of evidence in the record. 

Consequently, the Associate Administrator for Airports upholds the Director's Determination. 

D. Whether the Director Erred in Finding that the Port Authority Did Not Fail to Take 

"Appropriate Action" to Protect Terminal Airspace from the Creation of Airport 

Hazards and Incompatible Land Uses in Violation of Grant Assurances 20 and 21. 

1. Whether the NSMTS and Ferrara Brothers' stacks are "airport hazards" under 

Grant Assurance 20. 

The Complainants argue that the sponsor's duty to protect instrument and visual operations to the 

airport from airport hazards goes beyond preventing structures from being built that are 

"obstructions in the aerial approaches to the airport. The sponsor also is required to prevent 

structures and land uses that will attract wildlife. "

180 The Complainants allege that the 

174 FAA Exhibit 1, Item 2 1, pa ge 46 

175 FAA Exhibit 1, Item 2 1, pa ge 46 

176 FAA Exhibit 1, Item 2 1, pa ge 46 

177 FAA Exhibit 1, Item 21, pa ge 48 

178 FAA Exhibit 1, Item 22, pa ge 42 

179 FAA Exhibit 1, Item 17, pa ge 54, citing FAA Exhibit 1, Item 1, exhibit 38 

18° FAA Exhibit 1, Item 2 1, pa ges 50-5 1 

36 
Respondents have conceded that it has not complied with Grant Assurance 20 and 21 by not 

taking appropriate action to eliminate or mitigate seven other airport hazards in addition to 

NSMTS, including the Ferrara Brothers' stacks. 181 

The Complainants again allege that the NSMTS is within the RPZ, and that the NSMTS will 

attract wildlife and be a hazard to safe airport operations, despite the findings of the Panel 

Report.

182 

The Respondent argues the record shows that the "FAA and Panel found the NSMTS to be 

compatible with air operations at LGA, and that as a result of reasonable actions by the Port 

Authority within the scope of Port Authority capability, changes in height, location, design and 

operation of the NSMTS have and will be made consistent with FAA determinations to eliminate 

or mitigate possible hazards. "

183 

The Director properly concluded that the FAA makes the final determination on matters related 

to airspace use and management, including safe and reasonable mitigation measures for obstacles 

and hazards. The Director's Determination documented that NSMTS is not located within the 

Port Authority's leasehold at LGA and also is not located on any other airport sponsor-owned 

properties. The Director found that the record shows that the FAA studied the existing 

obstructions and the NSMTS, and determined that the mitigation measures in place provide an 

acceptable level of safety for air navigation and air operations at LGA. Thus, the FAA does not 

consider the existing obstructions, or the NSMTS, to be a hazard to air navigation or air 

operations at LGA. The Director also found that the Respondent took reasonable actions and 

exercised due diligence. 

Consequently, the Complainants have not made an argument that justifies reversing the 

Director's Determination. 

2. Whether the NSMTS is an incompatible land use within the meaning of Grant 

Assurance 21. 

The Complainants argue that "NSMTS is not compatible with 'local airport operations ' because 

it is an obstruction to aerial navigation, it is in the RPZ and it is a hazardous wildlife 

attractant."184 The Complainants again state that "NSMTS is also not compatible with local 

airport operations because it interferes with the Port Authority 's stated goal of implementing a 

precision approach in general, and CAT II approach in particular. "

185 

The Complainants rely on Keathy v. City of McKinney, Texas and the Collin County Regional 

Airport, Docket No. 1 6-03-14, Director's Determination (October 13, 2004). In that case, the 

Director stated: 

181 FAA Exhibit 1, Item 2 1, pa ges 5 1-52 

182 FAA Exhibit 1, Item 2 1, pa ges 53-54 

183 FAA Exhibit 1, Item 22, pa ge 43 

184 FAA Exhibit 1, Item 2 1, pa ge 55 

185 FAA Exhibit 1, Item 2 1, pa ges 55-56 

37 
With regard to compatible land use issues, FAA typically addresses two questions in 

order to determine if a sponsor has violated its obligations. 

1. Are the facility 's operations compatible with local airport operations? 

2. If not, could the sponsor have prevented the facility from operating near the 

airport?186 

The Respondent replies that the FAA and the Panel found the NSMTS to be compatible with air 

operations at LGA, and that the P ANYNJ took reasonable efforts to induce the DSNY to change 

the height, location, design and operation of the NSMTS so that the NSMTS will be constructed 

and operated consistent with FAA determinations and advice. 187 In addition, the P ANYNJ 

contends that it participated in the FAA's Determinations of No Hazard to Air Navigation with 

respect to the NSMTS during which the DSNY agreed to change the height and location of the 

NSMTS. 188 The PANYNJ argues that the "description ofwhat an airport operator 'could' do, or 

what 'appropriate action may also include,' is not an endorsement of the principles espoused by 

the Complainants, that to comply with Grant Assurance 21 every conceivable action must be 

taken to prevent what Complainants identify as a hazard to air navigation at LGA."

189 

The Director found that the Respondent passed both prongs of the Keathy test in determining 

whether an airport sponsor is in compliance with Grant Assurance 21. 

The record shows that the City ofNew York is the owner of the land and NSMTS. The City is 

not the airport sponsor. P ANYNJ does not have jurisdiction over the land upon which the 

NSMTS is being constructed. The Director also determined that P ANYNJ had a program in 

place, through the Amended and Restated Agreement of Lease of the Municipal Air Terminals, 

to evaluate and restrict incompatible land uses and unsafe development at, or around, LGA that 

would interfere with its use for airport purposes. The record again shows that the FAA 

ultimately determined that the proposed NSMTS is located outside of the existing and ultimate 

RPZ for Runway 31. Also discussed previously, the record shows that the Respondent took 

reasonable and appropriate actions to prevent the construction of the NSMTS after the FAA 

issued a notice presuming it was a hazard to air navigation, and that the Respondent also took 

appropriate action to ensure the NSMTS's compatibility with safe air operations at LGA. 

Consequently, the Associate Administrator for Airports concludes that the Director's finding that 

Respondent's actions with respect to the NSMTS were reasonable under Grant Assurance 21 is 

supported by a preponderance of evidence in the record. 

3. Whether the Port Authority has not taken "appropriate action" to ensure that the 

terminal airspace will be protected and therefore failed to comply with both Grant 

Assurances 20 and 21. 

186 See, [ Keathy v. City of McKinney, Texas and the Collin County Regional Airport, FAA Doc ket No. 16-03-14, 

Dir ector 's Determin ation, p age 23] 

187 FAA Exhibit 1, Item 22, p age 43 

188 FAA Exhibit 1, Item 22, p age 44 

189 FAA Exhibit 1, Item 22, p age 47 

38 
a. Whether the Director failed to consider the fact that the Port Authority failed to 

enforce the lease provision that prohibits the city from building in the Runway 

Protection Zone or any obstruction or hazards to air navigation. 

The Complainants argue that "the most important weapon that the Port Authority has in its 

arsenal is its lease with the City of New York:' because "the City specifically agreed in its lease 

with the Port Authority that it will not erect any obstructions or hazards to air navigation, erect 

any structures in the RPZ or erect any structure that penetrates the surfaces. "190 The 

Complainants contend that the NSMTS location was meant to be included in the area covered by 

the prohibitions contained in the Lease and that P ANYNJ had the authority to stop the 

construction of the NSMTS and failed to do so. 191 

The Director found that under the Amended and Restated Agreement of Lease of the Municipal 

Air Terminals, the PANYNJ "has the right to prevent the establishment of any structure, facility, 

or natural growth located on the airport, which in the opinion of the FAA or reasonable o�inion 

of the Respondent, constitutes a Hazard to Air Navigation or an incompatible land use."1 2 

The record also shows the FAA conducted an obstruction evaluation of the proposed NSMTS on 

two separate occasions, and the FAA issued two No Hazard Determinations. The record shows 

P ANYNJ opposed both FAA obstruction evaluations of the proposed NSMTS. Only after the 

completion of its due diligence, did the Respondent withdraw its objections to the NSMTS and 

petition the FAA to review the Determination of No Hazard to Air Navigation for Aeronautical 

Study No. 2004-AEA-3 1 59-0E. Subsequently, the FAA confirmed that the proposed NSMTS 

does not pose a Hazard to Air Navigation when it issued its Determination of No Hazard to Air 

Navigation on September 19, 2008. The record also showed that from November 30, 2009, until 

approximately June 201 0, the F AAIUSDA panel of experts conducted a study to evaluate the 

NSMTS and its compatibility with respect to bird strikes and safe air operations at LaGuardia 

Airport. The F AAIUSDA panel of experts concluded that, with design changes, to the NSMTS 

facility and adherence to certain operational procedures, the proposed NSMTS would be 

compatible with safe air operations at LGA. 

The record shows that the FAA studied the existing obstructions and the NSMTS, and that the 

FAA, not the PANYNJ, made the suggestion to the City ofNew York, which agreed to 

implement the Panel Report's proposed mitigation measures in order to provide an acceptable 

level of safety for air operations at LGA. Furthermore, the documentation for lower minimums 

for a precision approach for Runway 31 was considered by PANYNJ. P ANYNJ along with the 

FAA determined that there were a number of obstacles that were already in the approach to 

Runway 31. The PANYNJ's approved Airport Layout Plan (ALP) depicts the ultimate RPZ to 

be 1, 700 feet in length and that the visibility minimums below 3/4 mile are not feasible due to 

the number of obstacles. 

As the Director found, the lease terms did not require the Respondent to act because the FAA 

found the NSMTS did not pose a hazard to air navigation, and P ANYNJ was reasonable to rely 

19° FA A Exhibit I, Item 2 1, pa ges 59-60 

191 FAA Exhibit I, Item 2I, pa ge 60 

1 92 FAA Exhibit 1, Item 17, pa ge 27 

39 
on that determination after exercising due diligence in confirming the determination. The 

Associate Administrator concludes that the Director's findings were based on a preponderance of 

evidence in the record. 

b. Whether the Port Authority failed to require an avigation easement such that 

NSMTS would not penetrate the 34: 1 surface. 

The Complainants argue that the Port Authority did not seek an avigation easement from the City 

of New York for the airspace above NSMTS, such that it would not Renetrate the 34: 1 surface or 

any other surface in the departure or approach areas for Runway 31. 93 The Complainants 

contend that under Advisory Circular 1 50/5300-1 3, when an airport sponsor cannot obtain fee 

simple in the RPZ, that airport operators obtain avigation easements, not only for the RPZ but for 

all areas in the approach and departure surfaces. 194 

The Associate Administrator for Airports has previously found that the FAA had determined that 

the NSMTS is outside the existing and ultimate RPZ of LGA Runway 31 in a separate FAA 

administrative process. 195 These findings are not reviewable in this Part 1 6. Consequently, no 

further discussion on this specific issue on appeal will be considered. 

c. Whether the Port Authority should not have withdrawn its Petition for Review. 

The Complainants argue that the Respondent should not have withdrawn its Petition for Review 

based on a number of other issues in the FAA's Determinations ofNo Hazard that it had raised 

that went unanswered. The Complainants argue that these issues are significant enough for the 

Port Authority to have continued to support its Petition for Review. The Complainants argue 

that none of these issues have been resolved and the Director did not address them in his 

Determination. 196 

The Associate Administrator for Airports finds that three determinations that the proposed 

NSMTS would not be a hazard to air navigation pursuant to 14 CFR § 77.35 are final agency 

actions and are outside this Part 16 proceeding. The Complainants previously have been advised 

that such challenges are set forth in Subpart D of Part 77 of Title 14 ofthe Code of Federal 

Regulations and are outside the scope ofPart 1 6. 

Consequently, this specific issue on appeal is rejected. 

d. Whether the Port Authority should have failed to object to the Panel Report. 

The Complainants contend that the Port Authority should have objected to the Panel Report 

because "it does not take into account the synergistic construction of the NSMTS would have on 

the already significant bird strike issue at LaGuardia."197 The Complainants also contend that 

193 FAA Exhibit 1, Item 21, pa ges 60-61 

194 FAA Exhibit 1, Item 21, pa ge 60 

195 See, FAA Exhibit 1, Item 17, pa ge 38 citing FAA Exhibit 1, Item 1, exhibit 20 

19

6 FAA Exhibit 1, Item 22, pa ge 62 

197 FAA Exhibit 1, Item 22, pa ges 63-64 

40 
the Port Authority biologist's participation on the panel did not equate with her support of the 

panel's conclusions, and the Complainants allege that possibility was ignored by the Director198 

The Complainants argue that by failing to object to the Panel Report, the Port Authority failed in 

its duty to protect LaGuardia from an airport hazard and an incompatible land use. 199 Finally, the 

Complainants argue that PANYNJ's reliance on the Panel Reports mitigation measures does not 

''protect itself from violations of the Grant Assurances. "

200 

The record shows that the FAA advised in its February 28, 201 1, dismissal letter that alleged 

inadequacies of DOT's commissioned panel report, Evaluation of the North Shore Marine 

Transfer Station and Its Compatibility with Respect to Bird Strikes and Safe Operations at 

LaGuardia Airport appeared to be outside the scope of FAA's authority under 14 CFR Part 

16.

201 The Director relied on the Complainants statements that "the amended complaint does not 

attack the validity of the Panel Report. "

202 

The record shows that the Complainants provided public comments to the draft report that were 

incorporated into the final Panel Report. However, throughout the Complainants' Appeal, there 

are several examples of attacks on the validity of the Panel Report.203 This is not the appropriate 

forum to question the validity of the Panel Report. Consequently, the Associate Administrator 

for Airports concludes these specific issues are outside the purview of the Part 16 process and 

dismisses them. 

IX. CONCLUSION 

The FAA's role in this Appeal is to determine whether the Director erred in findings of fact or 

conclusions of law in issuing the Director's Determination. The Associate Administrator 

addressed the issues raised by the Complainants and finds that the Director has not erred. 

Specifically, upon an appeal of a Part 16 Director's Determination, the Associate Administrator 

must determine whether (a) the findings of fact made by the Director are supported by a 

preponderance of reliable, probative, and substantial evidence, and (b) each conclusion of law is 

made in accordance with applicable law, precedent, and public policy. 14 CFR § 1 6.33(e); see, 

e.g. , Ricks v Millington Municipal Airport, FAA Docket No. 1 6-98-19 (December 30, 1 999) 

(Final Decision and Order, page 21 ). 

In arriving at a final decision on this Appeal, the FAA has reexamined the record, including the 

Director's Determination, the administrative record supporting the Director's Determination, the 

Appeal and Reply submitted by the parties, and applicable law and policy. Based on this 

reexamination, the Associate Administrator concludes that the Director's Determination is 

supported by a preponderance of reliable, probative, and substantial evidence, and is consistent 

with applicable law, precedent, and FAA policy. The Appeal does not contain persuasive 

198 FAA Exhibit 1, Item 22, pa ge 64 

199 FA A Exhibit 1, Item 22, pa ge 64 

20° FAA Exhibit 1, Item 22, Pa ge 65 

201 FAA Exhibit 1, Item 17, pa ge 34, citing FA A Exhibit 1, Item 2, Attachment A 

202 FAA Exhibit 1, Item 17, pa ge 34 

203 See FAA Exhibit 1, Item 22, pa ges 4, 10, 22, 23 

41 
arguments sufficient to reverse any portion of the Director's Determination or to reach a 

conclusion that the FAA should be recused from deciding this Appeal. 

The Associate Administrator affirms the Director's Determination. This decision constitutes the 

final decision of the Associate Administrator for Airports pursuant to 14 CFR § 1 6.33(a). 

ORDER 

ACCORDINGLY, it is hereby ORDERED that (1) the Director's Determination is affirmed, 

and (2) the Appeal is dismissed, pursuant to 14 CFR § 1 6.33. 

RIGHT OF APPEAL 

A party to this decision disclosing a substantial interest in the Final Decision and Order of the 

Federal Aviation Administration may file a petition for review pursuant to 49 U.S.C. § 46 1 10, in 

the United States Court of Appeals for the District of Columbia Circuit or in the Court of 

Appeals of the United States for the Circuit in which the person resides or has its principal place 

of business. The petition must be filed not later than 60 days after a Final Decision and Order 

has been served on the party. 14 CFR § 1 6.247(a). 

Eduardo A. Angele 

Associate Administrator 

for Airports 

42 
Kenneth D. Paskar and Friends of LaGuardia Airport, Inc. 

v. 

The Port Authority of New York and New Jersey 

FAA Docket No. 16-1 1-04 

INDEX OF ADMINISTRATIVE RECORD 

The following documents (Items) constitute the administrative record in this proceeding: 

FAA Exhibit 1: 

Item 1 - April 1 2, 201 1, Amended Complaint and Request for Investigation Pursuant to 14 CFR 

Part 1 6, Kenneth D. Paskar and Friends of LaGuardia Airport, Inc., v. The City ofNew York and 

The Port Authority of New York and New Jersey 

Exhibit 1 - January 20, 201 1, Aimav.com website for La Guardia Airport (LGA), 

http://aimav.com/airport!KLGA 

Exhibit 2 - February 12, 20 1 1, Declaration of Steven M. Taber, Esq. 

Exhibit 3 - November 1 2, 20 1 0, Gibson Dunn Letter to the General Counsel, Port Authority of 

New York and New Jersey 

Exhibit 4 - December 1 4, 201 0, Gibson Dunn Letter to New York City Corporation Counsel 

Exhibit 5 - January 2007, City ofNew York Department of Sanitation, Engineering Report for 

the North Shore Marine Transfer Station, Part 360 Permit Application 

Exhibit 6 - April 20 1 0, USDA and FAA Draft Study, Evaluation of the North Shore Marine 

Transfer Station and Its Compatibility with Respect to Bird Strikes and Safe Air Operations at 

LGA 

Exhibit 7 - January 28, 2005, FAA Determination of Presumed Hazard 

Exhibit 8 - May 9, 2005, Port Authority of NY & NJ Letter to FAA regarding aeronautical study 

Exhibit 9 - September 1 8, 2006, FAA Determination ofNo Hazard 

Exhibit 1 0 - October 1 7, 2006, Petition of the Port Authority ofNew York and New Jersey for 

Review of Determination ofNo Hazard 

Exhibit 1 1- October 28, 20 1 0, New York Flight Delays Report 

Exhibit 12 - October 23, 2006, Queens Delegation Letter to the FAA Administrator 

43 
Exhibit 13 - February 28, 2007, Port Authority ofNY & NJ Letter to FAA Airspace & Rules 

Branch 

Exhibit 1 4 - March 1 2, 2007, Email chain from FAA NY ADO, re: transfer station 

Exhibit 1 5 - March 26, 2007, Email chain from FAA OES, re: 07- 1 1 63/1 1 69 

Exhibit 16 - July 2, 2007, Port Authority of NY & NJ Letter to FAA NY Airports District Office 

Exhibit 17 - February 20, 2008, City of NY Letter to the Executive Director, The Port Authority 

ofNY & NJ 

Exhibit 1 8 - August 30, 20 10, Ferrara Bros. Building Materials Corp., Letter to Mr. Ken Paskar 

Exhibit 19 - December 8, 20 10, Williams Aviation Consultants Letter to Ken Paskar 

Exhibit 20 - May 29, 2008, Port Authority of NY & NJ Letter to FAA OES 

Exhibit 21 - October 1 0, 2008, Email chain from FAA AEA-620, re: transfer station 

Exhibit 22 - September 1 9, 2008, FAA Determination of No Hazard 

Exhibit 23 - October 24, 2008, FAA Determination of No Hazard 

Exhibit 24 - March 1 2, 2009, Queens Chronicle Article, re: transfer station 

Exhibit 25 - January 4, 2011 (access date), Bill Summary & Status, H. proposed Arndt. 1 59 

Exhibit 26 - Undated, Congressional Record page H5976, re: transfer station 

Exhibit 27 - June 1 0, 2009, FAA Letter to NYC Deputy Commissioner Szarpanski 

Exhibit 28 - July 9, 2009, NYC Letter to FAA 

Exhibit 29 - February 20 10, FAA Evaluation of Trash-Transfer Facilities as Bird Attractants 

Exhibit 30 - May 21, 201 0, Ackerman and Crowley letter to FAA Administrator 

Exhibit 31 - May 21, 201 0, NY Assemblywoman Mayersohn Letter to the Executive Director, 

Port Authority of NY & NJ 

Exhibit 32 - May 24, 20 1 0, Air Line Pilots Association Comments 

Exhibit 33 - May 14, 201 0, DeFusco comments on Preliminary Assessment and 

Recommendations Regarding Potential Bird Hazards to Aviation from the Proposed North Shore 

Marine Transfer Station, Queens, New York 

44 
Exhibit 34 - Paskar submittal, re: transfer station 

(1) March 1 1 , 2009, Steven D. Garber, PhD, Submittal 

(2) May 6, 2009, Supplemental Report 

(3) May 14, 201 0, DeFusco comments (same as 33 and 45) 

(4) May 24, 201 0, Paskar Response to Evaluation ofthe North Shore Marine Transfer 

Station April 2010 Report 

Exhibit 35 - September 2, 201 0, Technical Panel Report, with transmittal letters 

Exhibit 36 - September 2, 201 0, Letter from the Technical Panel to Secretary LaHood 

Exhibit 37 - September 2, 201 0, FAA Letter to Mr. Harry Szarpanski, NYC 

Exhibit 38 - September 3, 201 0, NYC (Harry Szarpanski) Letter to FAA 

Exhibit 39 - February 22, 2007, FAA Email chain, re: transfer station 

Exhibit 40 - Undated, Google Earth Printout of airport runway 

Exhibit 41 - March 1 3, 2007, FAA Email chain, re: transfer station 

Exhibit 42 - October 30, 201 0, Cleary Email 

Exhibit 43 - July 30, 201 0, Hughes comment regarding transfer station 

Exhibit 44 - October 1 7, 2002, Delaware Environmental Appeals Board, Appeal No. 2000-1 0, 

Dover AFB, Final Order and Decision 

Exhibit 45 - May 14, 201 0, DeFusco comments (same as 33 and 34(3)) 

Exhibit 46 - Undated, Merritt comments regarding transfer station 

Exhibit 47 - May 26, 2009, Daily News Article, re: transfer station 

Exhibit 48 - September 201 0, Hall & Associates LLC, comments on transfer station 

Exhibit 49 - September 30, 201 0, Moergeli comments on transfer station 

Exhibit 50 - Undated, Brady comments on transfer station 

Exhibit 51 - Undated, Williams Aviation Consultants comments on transfer station 

Exhibit 51a - Undated, Williams Aviation Consultants comments on transfer station 

Exhibit 52 - 2005, Wildlife Hazard Management at Airports: A Manual for Airport Personnel 

45 
Exhibit 53 - 2000, LaGuardia Airport Wildlife Hazard Assessment 

Exhibit 54 - March 23, 2009, Port Authority Email chain 

Exhibit 55 - November 24, 2004, Amended and Restated Agreement of Lease of the Municipal 

Air Terminals, City ofNew York and The Port Authority ofNY & NJ 

Item A - May 9, 201 1, Order extending time period to docket or dismiss complaint. 

Item 2 - May 24, 20 1 1, FAA Partial Dismissal Order and Notice of Docketing, FAA Docket No. 

16-1 1-04 

Attachment A. - February 28, 201 1, FAA letter to Steven M. Taber, Esq. dismissing Complaint 

without prejudice, FAA Docket No. 16-1 1-02, with January 13, 20 1 1, FAA Airport Master 

Record (Form 5010), LaGuardia Airport 

Attachment B. - May 1 8, 201 1, Grant History Report for LaGuardia 

Attachment C. - May 5, 201 1, FAA Airport Master Record (Form 501 0), LaGuardia Airport 

Attachment D. - March 26, 20 10 (date of offer), FAA Grant Agreement with the Port Authority 

ofNY & NJ 

Item 3 - June 10, 20 1 1, Respondent's Answer to Amended Complaint 

Attachment A. - June 1 0, 201 1, Motion to Dismiss Amended Complaint 

Attachment B. - June 1 0, 201 1, Statement of Facts in Support of Answer to Amended Complaint 

and Motion to Dismiss Amended Complaint 

Attachment C. - June 6, 201 1, Declaration ofTom Bock 

Attachment D. - June 1 0, 20 1 1, Memorandum of Points and Authorities in Support of Motion to 

Dismiss Amended Complaint 

Exhibit A. - E-mail dated June 6, 2011 to Tom Bock from Kevin Thompson, Eastern Flight 

Procedures Office, FAA and attachment 

Exhibit B. - Airport Master Record - LaGuardia Airport 

Exhibit C. - Notice of Proposed Construction or Alteration (Form 7460-1 ), with respect to North 

Shore Marine Transfer Station ("NSMTS"), received by FAA November 1 0, 2004 

Exhibit D. - Determination of No Hazard To Air Navigation, Aeronautical Study No. 2004-

AEA-3 1 59-0E. (Sept. 1 8, 2006) 

46 
Exhibit E. - Complaint in Paskar v. City ofNew York and The Port Authority ofNew York and 

New Jersey, Docket No. 1 6-1 1-02, dated February 12, 2011 

Exhibit F. - FAA Letter determination dated February 28, 20 1 1, dismissing Complaint in Paskar 

v. City ofNew York and The Port Authority ofNew York and New Jersey, Docket No. 1 6-1 1 -02 

Item 4 - June 21, 201 1, Complainants Paskar and FOLA's Unopposed Motion for Extension of 

Time to File Reply 

Item 5 - June 27, 20 1 1 , FAA Order Granting Extension of Time 

Item 6 - July 1 2, 201 1 , Complainants Paskar and FOLA's Consolidated Reply to Respondent's 

Answer and Motion to Dismiss 

Attachment A - July 1 1, 20 1 1, Declaration of Kenneth D. Paskar 

Attachment B. - July 1 2, 201 1, Declaration of James Hall 

Attachment C. - June 6, 20 1 1, Declaration of Charles Hannon 

Attachment D. - July 8, 20 1 1, Declaration of Russell Defusco 

Attachment E. - July 6, 20 1 1 , Declaration of Ronald Merritt 

Attachment F. - July 7, 20 1 1 , Declaration of Michael Matrone 

Attachment G. - July 6, 201 1, Declaration of Barry Yurtis, with attachments 

Exhibit 1 - May 6, 2009, Stephen Garber, PhD., Supplemental Report to the NYC DEC 

Reference the North Shore Marine Transfer Station, with attachments 

Exhibit 2 - LGA Conical Surfaces 

Item 7 - July 1 5, 20 1 1, Respondent's Unopposed Motion for Extension ofTime to Serve and 

File Rebuttal 

Item 8 - July 21, 201 1, FAA Order Granting Extension ofTime 

Item 9 - July 29, 201 1, Rebuttal Memorandum of Points and Authorities in Support of Motion of 

the Port Authority ofNew York and New Jersey to Dismiss Amended Complaint 

Attachment A. - July 29, 20 11, Declaration of Tom Bock 

Item B - January 4, 20 1 2, Letter from Attorney Taber inquiring on issuance of Director's 

Determination 

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Item 10 - January 20, 20 1 2, FAA Notice of Extension ofTime for issuance of Determination 

Item 1 1 - June 1 2, 201 2, Summary Order On Petition to Review an Order of the Federal 

Aviation Administration, United States Court of Appeals for the Second Circuit, Kenneth D. 

Paskar; and Friends of LaGuardia Airport, Inc. (Petitioners) v. the Federal Aviation 

Administration; Michael P. Huerta, Acting Administrator, Federal Aviation Administration 

(Respondents) [ Case No. 1 1-2720-ag] 

Item 12 - November 28, 20 1 1 , Supreme Court of Queens County Decision, Regarding The 

Matter of the Application of Kenneth Paskar and FRIENDS OF LAGUARDIA AIRPORT, INC., 

Petitioners, For a Judgment Pursuant to CPLR Article 78 against New York State Department of 

Environmental Conservation, PETER M. IW ANOWICZ and NEW YORK CITY 

DEPARTMENT OF SANITATION, Respondents 

Item 13 - January, 24, 1 997, FAA Approved Airport Layout Plan for LaGuardia Airport 

Item 14 - April 25, 20 1 2, FAA Notice of Extension of Time for issuance of Director's 

Determination 

Item 15 - July 1 6, 20 1 2, FAA Notice of Extension of Time for issuance of Director' s 

Determination 

Item 16 - September 1 0, 20 1 2, FAA Notice ofExtension of Time for issuance ofDirector's 

Determination 

Item 1 7 - September 27, 20 1 2, Director's Determination 

Item 18 - October 25, 20 1 2, Complainants' Unopposed Motion for Extension of Time to File 

Appeal of Director's Determination 

Item 19 - January 7, 20 1 3 , Complainants' Second Unopposed Motion for an Extension of Time 

to File Appeal 

Item 20 - February 4, 20 1 3, FAA Order granting Complainants' Second Unopposed Motion for 

an Extension of Time to File Appeal 

Item 21 - February 4, 20 1 3, Complainants' Appeal from the Director's Determination dated 

September 27, 2013 

Item 22 - April 3, 20 1 3, Reply ofthe Port Authority ofNew York and New Jersey to Associate 

Administrator for Airports from Director's Determination 

Item 23 - June 1, 20 1 3, Complainants' Motion for Reconsideration or Remand 

Exhibit A - Director's Determination issued September 27, 2012 

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Exhibit B - Corrected April 22, 2013, Paskar v. US. Department ofTransportation, Docket No. 

1 0-46 1 2-ag, Order Dismissing Petition for Review, United States Court of Appeals for the 

Second Circuit 

Item 24 - June 13, 20 1 3, Opposition of the Port Authority ofNew York and New Jersey to 

Complainants Motion for Reconsideration or Remand 

Item 25 - June 28, 201 3, FAA Notice of Extension ofTime for issuance of Final Agency 

Decision to October 1 1 , 2013 

Item 26 - October 1 5, 20 13, FAA Notice ofExtension of Time for issuance ofFinal Agency 

Decision to January 9, 2014 

Item 27 - January 1 4, 20 1 4, FAA Notice of Extension ofTime for issuance of Final Agency 

Decision to April 4, 2014 

Item 28 - July 22, 201 4, FAA Notice ofExtension of Time for issuance of Final Agency 

Decision to December 5, 2014 

Item 29 - December 1 7, 20 14, FAA Notice ofExtension of Time for issuance of Final Agency 

Decision to February 27, 20 15 

Item 30 - January 1 7, 20 1 5, Complainants' Motion to Supplement Record and Amend Appeal 

Item 3 1 - January 28, 20 1 5, Respondent's Opposition to Complainants' Motion to Supplement 

Record and Amend Appeal and separate Motion to Supplement Record and Amend Reply 

Item 32 - March 25, 201 5 , FAA Notice ofExtension of Time for issuance of the Final Agency 

Decision to June 1 9, 20 15 

Item 33 - City ofNew York and Port Authority ofNew York and New Jersey Change of 

Address dated April 3, 2015 

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