## 1HE PORTAUTHORITYOF NY&

## NJ

BYFEDERAL EXPRESS OVERNIGHT DELIVERY Office ofthe ChiefCounsel ARNOLD D. KOLIKOFF ATTORNEY lAW DEPARTMENT 14TH FLOOR 225 PARK AVENUE SOUTH NEW YORK, N.Y. 10003 DIRECT DIAL: (212)435-3451 January 28, 2015

Attention: FAA Part 16 Airport Proceedings Docket, AGC-610 Federal AviationAdministration 

## RECEIVED JAN 2

## 92015 Room923 800 Independence Avenue, SW Washington D.C. 20591 

### PART 16 DOCKETS

Re: Kenneth D. Paskar v. The PortAuthority of New York andNew Jersey, Docket Number 16-11-04. To whom it may concern: Please find enclosed for filing the Opposition OfThe Port Authority OfNew York And NewJersey To Complainants' Motion To SupplementRecord And Amend Appeal and Motion OfThe Port Authority OfNew York AndNew Jersey To Supplement Record And Amend Reply submitted by the Respondent The Port Authority ofNew York and NewJersey inthe abovecaptioned matter. Anunbound original document and three bound copies are enclosed.

Copy to: Steven M. Taber, Esq. Taber Law Group 1League, #60036 Irvine, California 92602 Steven M. Taber, Esq. Taber Law Group, P.C. 13 Atlanta Irvine, CA 92620 Attorney for Complainants Yours truly, 

# l/70'041/l

# /t:A;q#~

Arnold D. Kolikoff //FEDERAL AVIATION ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION 

### --------------------------------------------------------------------------------------)( KENNETH D. PASKAR and FRIENDS OF LAGUARDIA AIRPORT, 

### INC., Complainants,
v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, an Interstate Compact agency pursuant to Article I, Section 6 ofthe U.S. Constitution, Respondent.

**-------------~------------------------------------------------------------------------)(** DocketNo. 16-11-04

OPPOSITION OF THE PORT AUTHORITY OF NEW YORKAND NEWJERSEY TO

COMPLAINANTS' MOTION TO SUPPLEMENT RECORD AND AMEND APPEAL and MOTION OF THE PORT AUTHORITY OF NEWYORKAND NEWJERSEY TO SUPPLEMENT RECORD AND AMEND REPLY Documents inthis proceeding should be served uponthe following individuals:

Carlene V. Mcintyre Assistant General Counsel Arnold D. Kolikoff Attorney Law Department The Port Authority ofNew York and NewJersey 225 Park Avenue South, 14thFloor NewYork,N.Y. 10003 Telephone: (212) 435-3451 Attorneys for Respondent The Port Authority ofNew York and New JerseyFEDERAL AVIATION ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION 

### --------------------------------------------------------------------------------------)( KENNETH D. PASKAR and FRIENDS OF LAGUARDIA AIRPORT, INC., Complainants,
v. THE PORTAUTHORITY OF NEW YORKAND NEW JERSEY, an Interstate Compact agency pursuant to Article I, Section 6 ofthe U.S. Constitution, Respondent. 

### --------------------------------------------------------------------------------------)( DocketNo. 16-11-04

OPPOSITION OF THE PORT AUTHORITY OF NEW YORKAND NEW JERSEY TO

COMPLAINANTS' MOTION TO SUPPLEMENT RECORD AND AMEND APPEAL 

### and MOTION OF THE PORT AUTHORITY OF NEW YORKAND NEW JERSEY TO SUPPLEMENT RECORD AND AMEND REPLY
Pursuant to 14 C.F.R. §§ 16.19 and 16.33, Respondent The PortAuthority ofNewYork andNewJersey ("the Port Authority"), hereby submits this Opposition ofThe Port Authority of New York and NewJersey to Complainants' Motion To Supplement Record And Amend Appeal and Motion OfThe Port Authority OfNew York AndNewJersey To Supplement Record And Amend Appeal.INTRODUCTION Inthis Part 16 Proceeding, Complainants claimed that the Port Authority and Respondent The City ofNew York ("City") 1were in violation ofGrantAssurances 19, 20, 21, and 34 because the construction bythe Department ofSanitation ofthe City ofNew York ofthe North Shore Marine Transfer Station ("NSMTS") onproperty outside LaGuardiaAirport ("LGA") will create hazards to air navigation for aircraftusing LGA. By Director's Determination dated September 27, 2012, the Director ofAirport Compliance and Management Analysis (the "Director") found thatthe PortAuthority was not inviolation ofGrantAssurances 5,2 19, 20, 21, and 34, and ordered that the Complainants' Amended Complainf be dismissed. Complainants filed their Appeal from the Director's Determination with the Associate Administrator ofthe Federal Aviation Administration ("Associate Administrator") the pursuant to 14 C.F.R. 

### § 16.33 on February 4, 2013. The Port Authority filed its Reply to Complainant's Appeal onApril 3, 2013. The Associate Administrator has not yet issued a decision onthe Appeal. ByNotice ofExtension ofTime dated December 17, 2014, the Associate Administrator gave notice that the date when the final agency decision would be issued was extendedto on or about February 27,2015.

1The Part 16 Proceeding against the City was dismissed in a Partial Dismissal Order and Notice of Docketing, dated May 24, 2011. Item 2. Reference to "Items" is to documents as identified as part of Exhibit 1in the Index ofAdministrative Record rumexed to the Director's Determination. A copy ofthat document is annexed hereto as Exhibit 1. 2 The Port Authority's compliance with Grru1t Assurance 5 was an issue raised by the Director sua sponte. 3 Complainants original Complaint dated February 12, 2011 was dismissed without prejudice by letter dated February 28, 2011. Item 3, Exhibit F.

2Bythe instant Complainants' Motion To Supplement Record And Amend Appeal,4 Complainants' seek to amend the record upon whichthe Director'sDetermination was based and amend their argument on appeal. The subject ofComplainants' Motion are pages from the November 24, 2004 Amended and Restated Lease ofthe Municipal Air Terminals between the City ofNew York and The Port Authority ofNew York andNewJersey ('the Lease"), which Complainants claim demonstrates thatthe Port Authority violated Grant Assurance 20, which requires an airport sponsorto take appropriate action to prevent the establishment or creation of airport avigational hazards. Complainants' Motion should be denied for two separate and independent reasons. First, Complainants' Motion should be denied because ofthe utter failure to satisfY the requirements of 14 C.F.R. 

### § 16.33 (f), which governs such motion to present new evidence or issues in an appeal from a Director's Determination. Complainants do not satisfY the requirements by explaining why the evidence they now seek to be included inthe record andthe issue they now seekto be included inthe appeal were not timely presented to the Director, or could nothave been discovered in the exercise ofdue diligence priorto the date on which the evidentiary record closed. Newissues and evidence should notbe considered by the Associate Administrator atthis late date, more than two years after the date ofthe Director's Determination, and almost two years after the Complainant's filed their appeal, in violations of the applicable requirements ofPart 16. Thus, Complainants' Motion should be denied it its entirety and with prejudice onthat ground alone.

4 Hereinafter referred to as "Complainants' Motion."

3Second, Complainants' Motion should be denied because the FAAhas issued three separate formal Determinations ofNo Hazard to Navigation with respectto the NSMTS, and a Part 16 proceeding is not the proper forum for challenging FAA Determinations ofNo Hazard to Navigation. Complainants state that relevance ofthe evidence they wish to add to the record is to establish thatthe Port Authority violated Grant Assurance 20, whichrequires an airport sponsor to take appropriate action to prevent the establishment or creation ofairport avigational hazards. Complainants make this claim despite the fact that the FAAhas issuedthree separate formal Determinations ofNo Hazard to Navigation with respect to the NSMTS. Complainants

are attempting to challenge these determinations ofthe FAAthrough this Part 16 proceeding. However, a Part 16 proceeding is notthe proper forum for challenging Determinations ofNo Hazard to Navigation ofthe FAA. FAAregulations set forth different procedures for making such challenges. Thus, Complainants' Motion should be denied itits entirety and withprejudice

onthis additional ground as well. However, inthe alternative, should Complainants' Motion be granted, the Port Authority
moves to supplement the record and amend its Reply to rebutthe evidence Complainants now seekto be included in the record to address the issue Complainants now seekto be included in the appeal. IfComplainants are permittedto supplementthe record and amend its Appeal atthis late date inthe proceedings, then as a matter offundamental fairness, the Port Authority should be permitted to supplementthe record and amend its Reply to malce a rebuttal argument. PROCEDURAL HISTORY Complainants filed their Amended Complaint on Aprill2, 2011, which alleged the Port Authority and the City had violated Grant Assurances 19, 20, 21 and 34 for reasons related to the construction ofthe NSMTS. Item 1. Complainants included a copy ofthe November 24, 2004



### 4Amended and Restated Lease ofthe Municipal Air Terminals between the City ofNew York and The Port Authority ofNew York and NewJersey as Exhibit 55 to the Amended Complaint. Item 1, Exhibit 55. OnMay 24, 2011, the Director issued a Partial Dismissal Order and Notice ofDocketing assigning the DocketNumber 16-11-04 to the instantproceeding. The May 24 Order dismissed the City from the Part 16 Proceeding based onthe February 28, 2011letter. Item 2. The dismissal ofthe City from the proceeding was upheld bythe United States Court ofAppeals for the Second Circuit by summary order dated June 12, 2012. Item 11. OnJune 10, 2011, the Port Authority filed its Answer and Motion to Dismiss the Amended Complaint. Item 3. On Ju1y 12, 2011, the Complainants filed their Replyto the Motionto Dismiss the Amended Complaint. Item 6, On Ju1y 29, 2011, the Port Authority filed its Rebuttal to Complainants' Reply. Item 9. On September 27,2012, the Director issued the Director's Determination finding that the Port Authority was not in violation ofGrant Assurances 5, 19, 20, 21, and 34, and ordering that the Complaint be dismissed. OnFebruary 4, 2013, Complainants filed their Appeal from the Director's Determination with the Associate Administrator. OnApril 3, 2013, the Port Authority filed its Reply to Complainants' Appeal. The Associate Administrator has not yet decided the Appeal. ByNotice ofExtension of Time dated December 17,2014, the Associate Administrator gave notice thatthe date whenthe fmal agency decision wou1d be issued was extended to on or about February 27,2015.

5ARGUMENT POINT I COMPLAINANTS' MOTION SHOULD BE DENIED FOR FAILURE TO SATISFY THE REQUIREMENTS OF 14 C.F.R 

### § 16.33 (f). Complainants' motion should be denied for failure to satisfY the requirements of 14 C.F.R. § 16.33 (f) because Complainants do not explain why the evidence they now seekto be included inthe record and the issue they now seek to be included inthe appeal, was not timely presented to the Director or could nothave been discovered in the exercise ofdue diligence prior to the date on which the evidentiary record and the appeal closed. Part 16 ofTitle 14 ofthe Code ofFederal Regulations ("Part 16") sets forth the procedures governing proceedings involving Federally-assisted airports. 14 C.F.R. 

### § 16.33 governs appeals from a Director's Determination. 14 C.F.R. § 16.33 (f) sets forth the requirements for presenting new evidence or argument in an appeal which was notpresented to the Director priorto a Director's Determination. 14 C.F.R. 

### § 16.33 (f) provides as follows: (f) Any new issues or evidence presented in an appeal or reply will not be considered unless accompanied by a petition and good cause found as to why the new issue or evidence was not presentedto the Director. Such a petition must: (1) Set forth the new matter; (2) Contain affidavits ofprospective witnesses, authenticated documents, orboth, or an explanation ofwhy such substantiation is unavailable; and (3) Contain a statement explaining why such new issue or evidence could not have been discovered inthe exercise ofdue diligence prior to the date on which the evidentiary record closed. Pursuantto 14 C.F.R. § 16.33 (f), Complainant's Motion should be denied because "new issues or evidence presented in an appeal or reply will notbe considered
... unless good cause [is] found as to why the new issue or evidence was notpresented to the Director, 

### id (emphasis added), and Complainants utterly fail to satisfY the requirements of 14 C.F.R. § 16.33 (f). 

### 6Complainants' Motion does not comply with of 14 C.P.R.§ 16.33 (f) because it does not explain why the evidence they now seekto be included inthe record and the issue they now seek to be included inthe appeal were nottimely presented to the Director, or could not have been discovered inthe exercise ofdue diligence prior to the date on which the evidentiary record closed. Complainants do not even attempt to satisfy these requirements. Complainants' failure to satisfy the requirements of 14 C.P.R. § 16.33 (f), or even attempt to do so, is all the more egregious because Complainants make their motion more than two years after the date ofthe Director's Determination, and almost two years after the Complainants filed their appeal. Thus, Complainants' Motion should be denied. Furthermore, it is respectfully submitted that it would be impossible for Complainants to establish good cause for having failed to timely present the evidence and argument which is the subject ofComplainants' Motionpursuant to the requirements of 14 C.P.R. § 16.33 (f) because the Amended Complainant included a copy ofthe Lease as Exhibit 55. Item 1, Exhibit 55. Thus, Complainants had every opportunity to timely presentthe evidence and argument based on that document prior to the issuance ofthe Director's Determination since Complainants hadthe Lease intheirpossession when they filed the Amended Complaint. Accordingly, Complainants' motion should be denied with prejudice for failure to satisfy the requirements of 14 C.P.R. 

### § 16.33 (f).

7POINT II COMPLAINANTS' MOTION SHOULD BE DENIED BECAUSE CLAIMANTS ARE PRECLUDED FROM CLAIMING THAT THE NSMTS WILL CREATE A HAZARD TO AIRNAVIGATION IN THIS PART 16 PROCEEDING. Complainants state that relevance ofthe evidence they wish to add to the record is to establish that the Port Authority violated Grant Assurance 20, which requires an airport sponsor to take appropriate action to assure that suchterminal 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, or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation offuture airport hazards. Complainants make this claim ofrelevance despite the fact that the FAAhas issued three separate formal Determinations ofNo Hazard to Navigation with respect to the NSMTS. Thus, Complainants seekto use the evidence they are seeking to addto the record to attemptto challenge these determinations ofthe FAA through this Part 16 proceeding. However, a Part 16 proceeding is not the proper forum for challenging Determinations ofNo Hazardto Navigation ofthe FAA. FAAregulations set forth differentprocedures for making such challenges. On September 18, 2006, the FAA determined thatthe NSMTS presented no hazard to air navigation in Determination OfNo Hazard To Air Navigation, Aeronautical Study No. 2004- AEA-3159-0E. Item 3, Exhibit D. The Determination stated that the NSMTS would not affect any plans on file, would not affect a planned precision approach for Runway 13, would not interfere with any airport traffic patterns, would not adversely affect anypresent or future VFR
or IFR terminal procedure, would not affect any VFR or IFR en route procedure, and would not have a cumulative impact on any existing or planned airport.



### 8On September 19, 2008, the FAA again determined that the NSMTS presented no hazard to air navigation in its Determination ofNo Hazard to Air Navigation, Aeronautical Study No. 2007-AEA-1163-0E. Item 1, Exhibit22. The Determination stated that the NSMTS would have no impact on arrival, departure, and enroute procedures for aircraft operating under VFR, and that the NSMTS would have no cumulative impactresulting from the proposed construction
or alteration ofa structure when combined withthe impact ofother existing or proposed structures. The Determination described the impact on arrival, departure, and enroute procedures for aircraft operating under IFR as follows: LaGuardia Airport currentlyhas a plan on file withthe FAAto install a precision approach to runway 31. During the aeronautical study, the FAA and the Port Authority ofNew York and New Jersey has agreed to install an offset localizerwith a 3.1 degree glide slope angle which will allow for a decision height of280 feet above touchdown withvisibility of5000 feet. The proposed building will not impact this approach procedure. Item 1, Exhibit 22. The City also submitted a Notice OfProposed Construction Or Alteration for a 97-foothigh crane container handling gantryto be erected at the NSMTS. On October 24, 2008, the FAA determined that the crane containerhandling gantry would notpose a hazard to air navigation in its Determination OfNo Hazard To AirNavigation, Aeronautical Study No. 2008- AEA-407 1 -OE. Item 3, Exhibit 23. The FAA concludedthatthe structure as proposed would not have a substantial adverse effect on the safe and efficient use ofnavigable airspace by aircraft or the use ofany air navigation facility, and would not be a hazard to airnavigation. Item 3, Exhibit 23. The procedures for challenges to FAA determinations ofno hazard to air navigation are set forth in Subpart D ofPart 77 ofTitle 14 ofthe Code ofFederal Regulations, 14 C.P.R. §§77.31 et seq., not in Part 16 ofTitle 14 ofthe Code ofFederal Regulations. FAA Order 

### 95190.6B, Airport Compliance Manual (Sept. 30, 2009), specifically states at§ 5.16 (e) that airspace matters fall outside ofthejurisdiction ofPart 16 proceedings. 14 C.F.R. § 77.35(c) provides that a determination as to whetherproposed construction wouldbe a hazard to air navigation bythe Regional Manager, Air Traffic Division, or his designee, is final unless a petition for review ofsuch a determination is granted bythe FAA Administrator under 14 C.F.R. § 77.37. Such a petition must be brought within 30 days ofthe determination by a personwho stated a substantial aeronautical objection to the proposed construction, or a person who has a substantial aeronautical objectionbutwas not given an opportunity to state it. 14 C.F.R. § 77.37(a). Ifsuch a petition is granted, then a final decision is granted by the FAAAdministrator based upon a report ofthe Regional Manager, Air Traffic Division, briefs and related submissions, orbased upon a public hearing. 14 C.F.R. § 77.37 (c). The FAAissued three separate determinations that the proposed NSMTS would notbe a hazard to air navigationpursuant to 14 C.F.R. § 77.35. All three determinations that the proposedNSMTS would notbe a hazard to air navigationpursuant to 14 C.F.R. § 77.35 became final. Complainants make no claim that they filed even one petition challenging any ofthe three determinations ofthe FAAregarding the status ofthe NSMTS as a hazard to air navigation. Complainants' attempted use ofPart 16 to attackthe three determinations ofno hazard to air navigation regarding the NSMTS is a blatant attempt to circumvent the processes ofSubpart D ofPart 77 ofTitle 14 ofthe Code ofFederal Regulations, andthe requirementthat a challenge to such a determination must be made in a petition satisfying the requirements of 14 C.F.R. § 77.37. The FAAhas clearly stated that a Part 16 proceeding is not the appropriate forum to challenge actions or determinations ofthe FAA. BocaAirport, Inc. v. BocaRatonAirport

10Authority, FAA DocketNo. 16-00-10 (Director's Determination, April26, 2001), at 23; Town of Fairview v. City of McKinney, FAA DocketNo. 16-99-09 (Director's Determination, Jan. 23, 2001) at 17. Accordingly, Complainants' motion should be denied with prejudice because Complainants seek to use the evidence they are seeking to add to the record to attempt to improperly challenge through this Part 16 proceeding prior Part 77 determinations ofthe FAA thattheNSMTS will not constitute a hazard to air navigation. POINT III THE PORT AUTHORITY SHOULD BE PERMITTED TO SUPPLEMENT THE RECORD AND AMEND ITS REPLY TO MAKE A REBUTTAL IF COMPLAINANTS ARE PERMITTED TO SUPPLEMENT THE RECORD AND AMEND ITS APPEAL. Complainants' Motion should be denied for the reasons set forth above. However, in the alternative, should Complainants' Motion be granted, the Port Authority moves to supplement the record and amend its Reply to rebut the evidence Complainants now seek to be included in the record to address the issue Complainants now seekto be included inthe appeal. If Complainants are permittedto supplementthe record and amend its Appeal at this late date in the proceedings, then as a matter offundamental fairness, the Port Authority should be permittedto supplement the record and amend its Reply to make a rebuttal argument. The evidence that the Port Authority seeks to submit is the Declaration ofMichael Gernant, dated January 23,2015 ("Gernant Declaration"). The Gernant Declaration is rebuttal evidence to the evidence and argument that is the subject ofComplainants' Motion. Complainants' Motion contains statements ofcounsel that the NSMTS lies within the 2,500 foot long Runway Protection Zone ("RPZ") ofLGARunway 31/13 under the definition of that RPZ as set forth in Amended and Restated Lease ofthe Municipal Air Terminals between



### 11the City ofNew York and The Port Authority ofNewYork and NewJersey ("the Lease"). However, Complainants do not establishthat the Lease defmitions the RPZ ofLGARunway 31/13 is determinative ofthe RPZ for the purposes ofmaintaining safe operations at LGA under current conditions. The current RPZ for LGA Runway 31/13 is 1,700 feet as establishedpursuant to FAA Advisory Circular 150/5300-13a, Appendix 7, and the current LGAAirport Layout Plan ("ALP") on-file with, and approved by, the Federal Aviation Administration, the RPZ for LGA Runway 31/13 is 1,700 feet long. As set forth in Gernant Declaration, the NSMTS is outside of the 1,700 feet long RPZ for LGA Runway 31/13. The Lease definition ofa 2500 foot long RPZ for LGA Runway 31/13 was consistent with a long term strategy to institute an Instrument Landing System (ILS) approach to LGA Runway 31/13 ifand when feasible. See, Item 1, Exhibit 16; Item 1, Exhibit 54. As set forth in the Gemant Declaration, LGA Runway 31/13 is not currently equipped with an ILS, and the Port Authority has no current plans to equip LGA Runway 31/13 with an ILS because ofthe inability to locate a suitable location for equipmentnecessary for implementation ofan ILS for LGA Runway 31/13. Furthermore, there is unrefuted evidence in the record thatthe FAA has been unable to find a suitable location for equipmentnecessary for implementation ofan ILS. Item 3, Attachment C, at

**~13.** IfComplainants are permittedto supplement the record and amend its Appeal at this late date inthe proceedings, then as a matter offundamental fairness, the Port Authority should be permitted to supplement the record with the Gemant Declaration and amend its Reply to argue thatthe that the NSMTS does not lie within the Runway Protection Zone ("RPZ") ofLGA Runway31/13.

12CONCLUSION Forthe reasons set forth above, Complainants' Motion should be denied 

### in all respects with prejudice. Inthe alternative, ifComplainants' Motion is granted, the Motion OfThe Port Authority OfNew York AndNew Jersey To Supplement Record And AmendReply should be granted. Dated: January 28, 2015 Respectfully submitted,
Carlene V. Mcintyre Assistant General Counsel Arnold D. Kolikoff Attorney Law Department The Port Authority ofNew York and New Jersey 225 Park Avenue South, 14th Floor New York, N.Y. 10003 Telephone: (212) 435-3451 Attorneys for Respondent The Port Authority ofNew York andNew Jersey

13

# Exhibit 1Kenneth D. Paskar and Friends ofLaGuardia Airport, Inc. 

### v. The Port Authority ofNew York and New Jersey FAA Docket No. 16-11-04 INDEX OF ADMINISTRATIVE RECORD The following documents (Items) constitute the administrative record in this proceeding: FAA Exhibit 1: Item 1 Aprill2, 2011, Amended Complaint and Request for Investigation Pursuant to 14 C.F.R. Part 16, Kenneth D. Paskarand Friends ofLaGuardia Aimort, Inc., v. The City ofNew York, andThe Port Authority ofNew York and NewJersey exhibit I
exhibit 2 exhibit 3
exhibit4
exhibit 5
exhibit 6

exhibit 7 exhibit 8
exhibit 9 exhibit 10
exhibit 11 January 20, 2011, Aimav.comwebsite for 

### La GuardiaAirport (LOA), http://aimav.com/airportlKLGA February 12,2011, Declaration ofSteven M. Taber, Esq. November 12, 2010, Gibson Dunn Letter to the General Counsel, Port Authority ofNewYork and New Jersey December 14, 20l0, Gibson Dunn Letter to New York City Corporation Counsel ' January 2007, City ofNew York Department ofSanitation, Engineering Report for theNorth Shore Marine Transfer Station, Part 360 Permit Application April2010, USDA and FAA Draft Study, Evaluation ofthe North Shore MarineTransfer Station and Its Compatibility with Respect to Bird Strikes and Safe Air Operations at LOA January 28, 2005, FAA Determination ofPresumed Hazard May9, 2005, Port Authority ofNY

### & NJ Letter to FAA regarding aeronautical study September 18,2006, FAA Determination ofNo Hazard October 17, 2006, Petition ofthe Port Authority ofNew York and NewJersey for Review ofDetermination ofNo Hazard October 28, 20I0, New York Flight Delays Report2 exhibit 12 October 23, 2006, Queens Delegation Letter to the FAA Administrator exhibit 13 February 28, 2007, Port Authority ofNY & NJ Letter to FAA Airspace & Rules Branch exhibit 14 March 12, 2007, Email chain from FAA NY ADO, re: transfer station exhibit 15 March 26,2007, Email chain from FAA OES, re 07-1163/1169 exhibit 16 July 2, 2007, Port Authority ofNY & NJ Letter to FAA NY Airports District Office exhibit 17 February 20, 2008, City ofNY Letter to the Executive Director, The Port Authority ofNY & NJ exhibit 18 August 30, 20I0, Ferrara Bros. Building Materials Corp., Letter to Mr. Ken Paskar exhibit 19 December 8, 2010, Williams Aviation Consultants Letter to Ken Paskar exhibit 20 May29, 2008, Port Authority ofNY & NJ Letter to FAA OES exhibit 21 October 10, 2008, Email chain from FAA AEA-620, re: transfer station exhibit 22 September 19,2008, FAA Determination ofNo Hazard exhibit 23 October 24, 2008, FAA Determination ofNo Hazard exhibit 24 March 12,2009, Queens Chronicle Article, re: transfer station exhibit 25 January 4, 2011 (access date), Bill Summary & Status, H. proposed Arndt. 159 exhibit 26 Undated, Congressional Record page H5976, re: transfer station exhibit 27 June lO, 2009, FAA Letter to NYC Deputy Commissioner Szarpanski exhibit 28 July 9, 2009, NYC Letter to FAA exhibit 29 February 20I0, FAA Evaluation ofTrash-Transfer Facilities as Bird Attractants exhibit 30 May 21, 2010, Ackerman and Crowley letter to FAAAdministrator exhibit 31 May 21, 2010, NY Assemblywoman Mayersohn Letter to the Executive Director, Port Authority ofNY & NJ

·- ---· --····-·--------------------_J3 exhibit 32 May 24, 2010, Air Line Pilots Association Comments exhibit 33 May 14,2010, DeFusco comments on Preliminary Assessment and Recommendations Regarding Potential Bird Hazards to Aviation from the Porposed North Shore Marine Transfer Station, Queens, New York exhibit 34 Paskar submittal, re: transfer station (I) March 11, 2009, Steven D. Garber, PhD, Submittal {2) May 6, 2009, Supplemental Report (3) May 14, 2010, DeFusco comments (same as 33 and 45) (4) May 24, 2010, Paskar Response to Evaluation ofthe North Shore Marine Transfer Station April 20I0 Report exhibit 35 September 2, 2010, Technical Panel Report, with transmittal letters exhibit 36 September 2, 2010, Letter from the Technical Panel to Secretary LaHood exhibit 37 September 2, 2010, FAA Letter to Mr. Harry Szarpanski, NYC exhibit 38 September 3, 2010, NYC (Harry Szarpanski)Letter to FAA exhibit 39 February 22, 2007, FAA Email chain, re: transfer station exhibit 40 Undated, Google Earth Printout ofairport runway exhibit41 March 13, 2007, FAA Email chain, re: transfer station exhibit42 October 30, 2010, Cleary Email exhibit 43 July 30, 2010, Hughes comment regarding transfer station exhibit 44 October 17, 2002, Delaware Environmental Appeals Board, Appe\11 No. 2000- 10, Dover AFB, Final Order and Decision exhibit 45 May 14, 2010, DeFusco comments (same as 33 and 34(3)) exhibit 46 Undated, Merritt comments regarding transfer station exhibit47 May 26, 2009, Daily News Article, re: transfer station exhibit 48 September 20I0, Hall & Associates LLC, comments on transfer station exhibit 49 September 30, 20l0, Moergeli comments on transfer station exhibit 50 Undated, Brady comments on transfer stationexhibit 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 exhibit 53 2000, LaGuardia Airport Wildlife Hazard Assessment exhibit 54 March 23, 2009, Port Authority Email chain 4

exhibit 

### 55 November 24, 2004, Amended and Restated Agreement ofLease ofthe Municipal AirTerminals, CityofNew York and The Port Authority ofNY & NJ 

### Item A May 9, 20II, Order extending time period to docket or dismiss complaint. 

### Item2

ltem3 May 24, 20II, FAA Partial Dismissal Order and Notice ofDocketing, FAA Docket No. 16-11-04 Attachment A.

Attachment B. Attachment C.
Attachment D. February 28, 2011, FAA letter to Steven M. Taber,Esq. dismissing Complaintwithout prejudice, FAA Docket No. 16-11-02, withJanuary 13, 2011, FAA Airport Master Record (Form 50I0), LaGuardiaAirport May 18, 2011, Grant History Report for LaGuardia May 5, 2011, FAA Airport MasterRecord (Form 5010), LaGuardia Airport March 26,2010 (date ofoffer), FAA Grant Agreement with the Port Authority ofNY & NJ June 1 0, 20II, Resoondent's Answer to Amended Complaint AttachmentA. Attachment B.
Attachment

### C. Attachment D.
Exhibit A. June 10, 2011, Motion to Dismiss Amended Complaint June 10,2011, StatementofFacts in SupportofAnswerto Amended Complaint and Motionto Dismiss Amended Complaint June 6, 2011, Declaration ofT om Bock June I0, 20II, Memorandum ofPoints and Authorities in Support of Motionto Dismiss Amended Complaint E-mail dated June 6, 2011 to Tom Bock from Kevin Thompson, Eastern Flight Procedures Office, FAA and attachment

### Item 4
Item 

### 5 ltem6 Exhibit B. Exhibit C.

Exhibit D.
Exhibit E.

Exhibit F. 5
Airport Master Record

- LaGuardia Airport Notice ofProposed Construction orAlteration (Form 7460-1), with respect to North Shore Marine Transfer Station ("NSMTS"), received by FAA November 10,2004 Determination ofNo Hazard To AirNavigation, Aeronautical Study No. 2004-AEA-3159-0E. (Sept. 18, 2006) Complaint in 

### PU$/car v. 

### City of New Yorkand The PortAuthority of New York andNew Jersey, DocketNo. 16-11-02, dated February 12, 2011 FAA Letter determination dated February28, 20II, dismissing Complaint in 

### PU$/car v. 

### City of New YorkandThe PortAuthority of New YorkandNew Jersey, DocketNo. 16-11-02 June 21, 2011, Complainants Paskar and FOLA's Unopposed Motion for Extension of Time to File Reply June 27,2011, FAA OrderGranting Extension ofTime July 12, 2011, Complainants Paskar and FOLA's Consolidated Reply to Respondent's Answer and Motion to Dismiss Attachment A. Attachment B. Attachment C. Attachment D. Attachment E. Attachment F. AttachmentG. Exhibit I
Exhibit2 July II, 201 I, Declaration ofKenneth D. Paskar July 12, 20I I, Declaration ofJames Hall June 6, 2011, Declaration ofCharles Hannon July 8, 2011, DeclarationofRussell Defusco July 6, 20II, Declaration ofRonald Merritt July 7, 2011, Declaration ofMichael Matrone July 6, 2011, Declaration of

### Barry Yurtis, withattachments May 6, 2009, Stephen Garber, PhD., Supplemental Report to the NYC DEC Reference theNorth Shore Marine Transfer Station, with attachments. LGA Conical Surfaces.

### Item 7
ItemS Item 9 6 

### July 15,2011, Respondent's Unopposed Motion for Extension ofTime to Serve and File Rebuttal July 21, 2011, FAA Order Granting Extension ofTime. July 29, 2011, Rebuttal Memorandum ofPoints and Authorities in Support ofMotion ofthe Port Authority ofNew York and New Jersey to Dismiss Amended Complaint Attachment A. July 29, 2011, Declaration ofTom Bock Item B
Item 

### 10
ltemll

Item 12



### Itcm13
Item 

### 14
Item 15
Item 16 

### January 4, 2012, Letter from Attorney Taber inquiring on issuance ofDirector's Determination. January 20,2012, FAA Notice ofExtension ofTime for issuance ofDirector's Determination June 12, 2012, Summary Order On Petition to Review an Order ofthe Federal Aviation Administration, United States Court ofAppeals for the Second Circuit, Kenneth D. Paskar; and Friends ofLaGuardia Airport, Inc. (Petitioners) v. the Federal Aviation Administration; Michael P. Huerta, Acting Administrator, Federal Aviation Administration (Respondents). [Case No. 11-2720-ag] November 28, 2011, Supreme Court ofQueens County Decision, Regarding The Matter ofthe Application ofKenneth Paskar and FRIENDS OF LAGUARDIA AIRPORT, INC., Petitioners, For aJudgment Pursuant to CPLR Article 78 against New York State Department ofEnvironmental Conservation, PETER M. IWANOWICZ and NEW YORK CITY DEPARTMENT OF SANITATION, Respondents January, 24, 1997, FAA Approved Airport Layout Plan for LaGuardia Airport April 25,2012, FAA Notice ofExtension ofTime for issuance ofDirector's Determination July 16, 2012, FAANotice ofExtension ofTime for issuance ofDirector's Determination September 10,2012, FAA Notice ofExtension ofTime for issuance ofDirector's DeterminationFEDERAL AVIATION ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION 

### ----------------------------------------------------------------------------------X KENNETH D. PASK.AR and FRIENDS OF LAGUARDIA AIRPORT, INC., Complainants, V. THE PORT AUTHORITY OF NEW YORKAND NEW JERSEY, an Interstate Compact agency pursuant to Article I, Section 6 ofthe U.S. Constitution, Respondent. 

### ----------------------------------------------------------------------------------X CERTIFICATE OF SERVICE DocketNo. 16-11-04

I hereby certify that by Federal Express Overnight delivery service, I have this day served copies ofthe Opposition OfThe Port Authority OfNew York AndNewJersey To Complainants' Motion To SupplementRecord And Amend Appeal and Motion OfThe Port Authority OfNew York AndNewJersey To Supplement Record And Amend Reply ofthe Respondent inthe above-captioned matter on the offices or persons set forth below at the addresses indicated. Dated: January 28, 2015 Carlene V. Mcintyre Assistant General Counsel Arnold D. Kolikoff Attorney Law Department The Port Authority ofNew York and NewJersey 225 ParkAvenue South, 14thFloor NewYork,N.Y. 10003 Telephone: (212) 435-3451 Attorneys for Respondent The Port Authority ofNew York and NewJersey 

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# 1~1%'/f Arnold D. KolikoffFEDERAL AVIATION ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION 

### ----------------------------------------------------------------------------------)( KENNETH D. PASKAR and FRIENDS OF LAGUARDIA AIRPORT, INC., Complainants,

v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,, an Interstate Compact agency pursuantto Article I, Section 6 ofthe U.S. Constitution, Respondent. 

### ----------------------------------------------------------------------------------)( DECLARATION OF MICHAEL GERNANT I, Michael Gemant, declare as follows: DocketNo. 16-11-04

1. Since April2013, I have held the position ofManager, Technical & Operational Support, Aviation Technical Services, Aviation Department, The PortAuthority ofNew York and NewJersey ("the Port Authority"). Inthat capacity, my responsibilities include: the effective and efficient delivery ofessential aviation services for the Port Authority's airports; devising technology-based solutions to solve issues confronting the PortAuthority airports, such as, establishing a multi-airport policy for managing aeronautical obstructions at those airports and improving Port Authority design ofairfield improvement projects consistent with Federal Aviation Administration standards; and serving as the Port Authority's technical expert inthe fields managed bythe unit, such as, airfield lighting, signage and marking, airfield obstruction analysis, airport training, advanced airport navigational technologies, and meeting Federal Aviation Administration's airfield standard. 2. I have been asked to determine whether the North Shore Marine Transfer Station ("NSMTS") lies inside or outside ofthe Runway Protection Zone ("RPZ") ofLGA 31113.3. Pursuant to FAA Advisory Circular 150/5300-13a, Appendix 7, and the current LGA Airport Layout Plan ("ALP") on file with, and approved by, the Federal Aviation Administration ("FAA"), the RPZ for Runway 31/13 is 1,700 feet long. 4. Based on my review ofthe geographic data, I have concluded that the NSMTS is outside ofthe 1,700 foot long RPZ ofLGA Runway 31/13. Attached as Exhibit 1 is an image which superimposes the definition ofthe 1,700 foot long RPZ ofLGA Runway 31/13 over a recent aerial photograph ofa portion ofLGA and the surrounding area. As set forth in that Exhibit, the NSMTS is outlined inred and the RPZ ofLGA 31/13 is the trapezoid outlined with
a solid black line. As is clearly shown inthat Exhibit, the NSMTS is outside ofthe RPZ ofLGA 31/13 as set forth inthe current for LGA. 5. LGARunway 31/13 would need a 2,500 foot long RPZ under FAA requirements ifan Instrument Landing System ("ILS") were to be implemented for thatrunway. LGA Runway 31113 is not currently equipped with an ILS, and the Port Authority has no current plans to equip LGA Runway 31/13 with an ILS because ofthe inability to locate a suitable location for equipmentnecessary for implementation ofan ILS for LGA Runway 31/13. Thus, LGA Runway 31/13 does not need a 2,500 foot long RPZ under FAA requirements. I declare underthe penalty ofperjury under the laws ofthe United States ofAmericathat that the foregoing is true and correct. Executed atNew York, New York, on January 28,2015.

Michael Gernant

2

# Exhibit 1