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- mail, Fax and Expedited Post/Overnight Delivery February 4, 2013 Office of the Chief Counsel Attention: FAA Part 16 Airport Proceedings Docket, AGC

- 610 Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591
Re: Kenneth D. Paskar and Friends of LaGuardia Airport, Inc. v. City of New york and The Port Authority of New York and New Jersey , FAA Docket No. 16
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Dear Sir/Madam : Please find enclosed for filing Complainants Paskar and FOLA’s C omplainants’ Appeal From The Director’s Determination Dated September 27, 2012 in the above

- captioned matter. If you have any questions or comments, please feel free to call me at (949) 735

- 8217 or send me an e

- mail at staber@taberlaw.com.

Yours very truly, TABER LAW GROUP , P.C.

Steven M. Taber

cc: The Port Authority of New York and New Jersey Legal Department Ms. Carlene V. McIntyre Mr. Arnold D. Kolikoff 225 Park Avenue South, 14 th Floor, New York, New York 10003- 1

- BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. KENNETH D. PASKAR and FRIENDS ) OF LAGUARDIA AIRPORT, INC., ) ) Complainants, ) ) v. ) Case No.: FAA Docket No. 16

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- 04 ) THE PORT AUTHORITY OF NEW, ) YORK AND NEW JERSEY, an Interstate ) Compact agency pursuant to Article I, ) Section 6 of the U.S. Constitution, ) ) Respondent

. )

___________________________________ ) COMPLAINANTS ’ APPEAL FROM THE DIRECTOR = S DETERMINATION DATED SEPTEMBER 27, 2012 Communications with respect to this document should be sent to Complainant’s Representative:

Steven M. Taber T ABER L AW G ROUP

P.O. Box 60036 Irvine, California 92602

- 0036 (949) 735

- 8217 (phone)

(714) 707

- 4282 (fax) staber@taberlaw.com Counsel for Complainants Kenneth D. Paskar and Friends of LaGuardia Airport February 4, 2013- 2

- BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D. C. KENNETH D. PASKAR and FRIENDS ) OF LAGUARDIA AIRPORT, INC., ) ) Complainants, ) ) v. ) Case No.: FAA Docket No. 16

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- 04 ) THE PORT AUTHORITY OF NEW, ) YORK AND NEW JERSEY, an Interstate ) Compact agency pursuant to Article I, ) Section 6 of the U.S. Constitution, ) ) Respondent

. )

___________________________________ ) COMPLAINANTS ’ APPEAL FROM THE DIRECTOR = S DETERMINATION DATED SEPTEMBER 27, 2012 KENNETH D. PASKAR (“Paskar ") and the FRIENDS OF LAGUARDIA AIRPORT, INC., (“FOLA”) by and through their undersigned counsel and pursuant to 14 C.F.R. Part 16 (“Part 16"), file this appeal pursuant to 14 C.F.R. § 16.33, of the Director’s Determination of September 27, 2012 to the As sociate Administrator of the Federal Aviation Administration for Airports ( “ Appeal ”) against the Respondent, THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY (“Port Authority”). Jurisdiction over this petition is conferred on the Administrator of the Fed eral Aviation Administration by 49 U.S.C. §§ 47107 et seq. and 14 C.F.R. §§ 16.1 et seq. I. INITIAL PROCEDURAL ISSUE As an initial matter , the Federal Aviation Administration must recuse itself from deciding this matter because it cannot be an unbiased and unprejudiced adjudicator. It is readily apparent- 3

- from the Director’s Deter mination, that the Federal Aviation Administration is unable to separate itself from the litigation position it has taken in Kenneth D. Paskar and Friends of LaGuardia Airport, Inc. v. U.S. Department of Transportation, Ray LaHood, Federal Aviation Adminis tration and J. Randolph Babbitt , Case No. 10

- 4612, which is current ly pending in the United States Court of Appeals for the Second Circuit (“2 nd Circuit Litigation”). The Director, in arriving at his determination assumes certain facts that are part and parcel of th e FAA’s litigation position in 2 nd Circuit Litigation. As such, the Director is not able to take a position that is contrary to the litigation position that the FAA has taken in the 2 nd Circuit Litigation . This has caused the Director to reach a decision that is unduly biased and prejudiced against the Complain ants. There are numerous examples of this bias scattered throughout the Director’s Determination. For example, whether the North Shore Marine Transfer Station (NSMTS) is in the Runway Protection Zone is a critical element of both the Complainants ’ Part 16 Complaint and the 2 nd Circuit Litigation. In order to successf ully defend its decision that the NSMTS is not a wildlife hazard in the 2 nd Circuit Litigation , the FAA necessarily must decide that the NSMTS is outside the RPZ. The Director in his determination makes the same arguments that the NSMTS is outside the RPZ that the FAA makes in the 2 nd Circuit Litigation. Those arguments are no more legitimate here than they are in 2 nd Circuit Litigation and most likely will be the subject of the 2 nd Circuit decision in that case. Thu s, it is impossible for the FAA in this matter
to be impartial and to entertain the idea that its litigation position in the 2 nd Circuit Litigation is incorrect. A second critical area of controversy that shows the FAA’s lack of impartiality in this- 4

- matter is th e issue surrounding the legitimacy of the Evaluation of the North Shore Marine transfer Station and Its Compatibility with Respect to Bird Strikes and Safe Air Operations at LaGuardia Airport (the “Panel Report”). Both the Director and the Respondent assu me that the Panel Report was properly executed and that its conclusions can be relied upon. Indeed, the Director has ruled that the Complainants cannot attack the validity of the Panel Report, yet the Director may rely on it to support his position, irres pective of the Panel Report’s gaping flaws and failure to follow FAA guidance and orders. Moreover, the validity and legitimacy of the Panel Report is an issue that disputed in the 2 nd Circuit Litigation . As such, the Director should
not be able to rely upon a document whose validity is in dispute and is in violation of the proper FAA protocols. The Director’s unmitigated bias is shown where the determination assumes that the Panel Report carries the weight of an FAA determination, when, in fact, the FAA in the 2 nd Circuit Litigation does not go that far and, in fact, argues that the Panel Report is advisory only and not an agency determination. Finally, the Director’s bias and prejudice can be seen in his handling of the fact that Complainants originally inc luded the City of New York as a Respondent in this Part 16 matter. The Second Circuit, in a summary order, stated that the City of New York was not a sponsor and therefore was not a signatory to the grant agreement and not bound to follow the grant

assuranc es. There is no reason for the Director to raise this issue in the Director’s Determination, except to show that the fact took that matter on a Petition for Review as was their right influenced and created bias against the Complainants. The issue had res olved by the Second Circuit and there is no reason for the Director to mention it, since it should not affect the outcome of the Director’s Determination against the Port Authority.- 5

- In conclusion, then, because of the FAA’s deep bias and prejudice against the Complainants, the FAA should recuse itself from deciding this matter. Instead, this matter should be submitted to an agency that does not carry the bias and prejudice that the F AA has displayed in attempting to carry out its statutorily mandated duties. T his matter must be submitted to the Department of Transportation Office of the Inspector General for resolution

. Even if the FAA has no obligation to recuse itself, there is an appearance of impropriety that must be addressed. This is especially true since the Associat e Administrator has rubber stamped the Director ’ s Determinations since the institution of the Part 16 regulations. 1 Complainants strongly feel that they are entitled to fairness in the Part 16 process and do not believe that that is possible from the FAA at this point in time.
I I . SU MMARY OF ARGUMENT The Port Authority, as operator and sponsor of LaGuardia Airport (the “Airport”) , must comply with the FAA’s Grant Assurances. The City of New York, which owns the property and the infrastructure (including the buildings and terminals) at the Airpo rt, has sought, over the past few years, to construct a marine waste transfer station at College Point area of Queens County, City of New York , New York. However, the NSMTS, as proposed, will be located a mere 2,200 feet from the end of the Airport’s Runway 31. The constructio n of NSMTS has raised many issues with respect to the safety of air operations at the Airport. These include, among other things, that NSMTS will be located in the Runway Protection Zone, will be an obstruction to the installation of a precision approach for Runway 31 with lower visibility minimums, and will

1 Out of the 47 appeals to the Associate Administrator, 100% of them upheld the Director ’ s Determination.- 6

- attract birds thereby raising the potential for hazardous bird strikes. Since the Port Authority has the means and authority to stop the construction of NSMTS at the College Point location and ha s fai led to do so, it is in violation of various grant assurances, including Grant Assurances 19, 20, 21 and 34.
For reasons that are not apparent in the Director’s Determination , the Director has chosen to ignore substantial factual and legal evidence indicat ing that NSMTS is a hazard to aviation safety and to people on the ground and instead cave to political muscle and influence exerted by the City of New York. There can be only one conclusion: the Director’s Determination is not supported by a preponderan ce of reliable, probative, and substantial evidence; is not consistent with applicable law, precedent and FAA policy. This appeal provides a sufficient basis for reversing the Director’s Determination with regard to the Port Authority’s obligations under 49 U.S.C. §§ 40103(e), 47107(a)(10 and (4) and the applicable grant assurances. The Airport and Airway Improvement Act of 1982 declared that “ It is the pol icy of the
U n ited States... (1) that the safe operation of the airport and airway system is the highest aviation priority...[and] (8) to ensure that nonaviation usage of the navigable airspace be accommodated but not allowed to decrease the safety and capacity of the airsp ace and airport system.” 49 U.S.C. § 47101(a). Operators and sponsors of airports, such as the Port Authority are required as a condition of their receipt of grants of federal funds to carry out this poli cy at their airports. These conditions, or Grant Assurances, require airport operators to take certain actions to ensure the safety, efficiency and utility of the operation of the airport as well as the safety of citizens in the surrounding area. The Por t Authority has failed to carry out the- 7

- conditions as expressed in Grant Assurances19, 20, 21 and 34. 2 In light of that failure, the FAA must sanction the Port Authority by withholding federal funds and requiring the Port Authority
to reimburse the FAA fo r all grants that they have received.
The Complainants have shown in their Amended Complaint and their Reply by a preponderance of reliable, probative, and substantial evidence that the Port Authority violated its Grant Assurances because (1) the NSMTS is an “airport hazard” and an incompatible land use; and (2) the Port Authority failed to take reasonable or appropriate action that was within their right and authority to prevent the creation of the airport hazard an d incompatible land use. In response to the Complainants’ arguments , the Port Authority conceded the first point and failed to offer a convincing argument with regard to the second. The Director failed to acknowledge in the Director’s Determination that the Port Authority and the FAA admit th at the NSMTS is an airport hazard, an incompatible land use, and it bars the Port Authority from taking certain
necessary action s to relieve congestion at LaGuardia. Moreover, the Director fails to acknowledge that the Port Authority has stated the NSMTS is in the RPZ in documents currently on file at the Port Authority. By failing to base his factual determinations on reliable, probative and substantial evidence and his legal analysis on applicable law, precedent and FAA policy the Director , along with th e Port Authority has succumb ed to political expediency instead of promoting aviation safety at LaGuardia

.

2 Part 16 of Title 14 of the Code of Federal Regulations gives the FAA the authority to enforce this policy against recalcitrant airport sponsors, such as the Port Authority (14 C.F.R. § 16.1(a)(5)).- 8

- The Port Authority in its Answer and Motion and its Rebuttal concedes that the NSMTS is both an airport hazard and an incompatible land use in that:

● The NSMTS is an obstruction to air traffic and therefore an airport hazard;

● The NSMTS is located in the Runway Protection Zone (RPZ); and

● The NSMTS will be an obstacle to the implementation of the Port Authority’s long planned precision approach w ith low visibility minimums for Runway 31, just not the only obstacle; and,

● The NSMTS will be a new wildlife hazard that must be prevented and cannot be mitigated to the extent that it will be compatible with safe airport operations. Recognizing its duty to oppose the NSMTS, as an airport hazard and an incompatible land use, the Port Authority claims in its Answer and Motion that it did not violate its Grant Assurances because it took “appropriate and reasonable” action to prevent the construction of the NSMTS. The Director inappropriately validated the Port Authority ’s two arguments in support of this statement, neither of which is based on probative, reliable or substantial evidence

. First, the Port Authority assert ed that it took appropriate and reasonable actions to avert this menace to the safety of air operations at LaGuardia Airport by filing objections and a Petition for Review with respect to proposed No Hazard Determination. But while the Port Authority’s Petition for Review raised valid o bjections to the proposed No Hazard Determination, the Port Authority withdrew the Petition for Review . It is not apparent from the record why the Port Authority decided to withdraw its sole attempt to comply with its Grant Assurances. According to the P ort Authority itself, it withdrew the Petition for Review as the result of strong

- arm tactics by the City of New York on Anthony Shorris, the then

- Executive Director of the Port Authority. In effect, then, the City of New York purchased the Port- 9

- Authority ’s silence with respect to the ongoing safety issues at LaGuardia arising from construction of the NSMTS. Regardless of the deal the Port Authority made with the City of New York, the Port Authority’s silence

– and more broadly, its failure to act

– is a violation of the Grant Assurances. The Director’s Determination validates the strong arm tactics of the City of New York to ensure that LaGuardia does not relieve congestion and that the skies remain unsafe due to the presence of a bird attractant so clos e to the end of the runway.
Second, the Port Authority asserts that there was nothing it could have done to prevent the construction of the NSMTS because it had no jurisdiction over the NSMTS. This argument is simply erroneous. In the lease between the City of New York and the Port Authority, the City of New York promised the Port Authority that it would not erect any structures that were obstructions to air traffic or that were in the Runway Protection Zone. The NSMTS is both, since it penetrates all s urfaces required to support the Port Authority’s planned precision approach to Runway 31, it is a bird attractant, and it is located in the RPZ. The Port Authority has not attempted to hold the City of New York accountable pursuant to this lease provision and offers no explanation for leaving this powerful weapon in its holster. Again, the Director offers no reliable, probative or substantive evidence to support his conclusion that the provision of lease is not applicable. Since the Director’s Determinati on is not consistent with applicable law, precedent and FAA policy it must be overturned and the Port Authority must be sanctioned for its failure to comply with its grant assurances.- 10

- In addition to the Lease there are several other steps the Port Authori ty should have taken to protect LaGuardia’s airspace that do not involve exercising jurisdiction over the NSMTS. For example, the Port Authority should have:

● Sought an avigation easement from the City of New York for the airspace above the NSMTS;

● Not withdrawn its Petition for Review in order to obtain a resolution from the FAA on all of the issues contained therein;

● Challenged the FAA’s Determinations of No Hazard;

● Challenged the FAA/USDA’s Panel Report on the significant bird strike hazard that the NSMTS presents; and

● Commenced a Wildlife Hazard Assessment as part of a due diligence investigation into the request by the City to erect the NSMTS 2,200 feet from LaGuardia’s Runway 31. By the Port Authority’s own admission, it erroneously relied on the FAA to ensure that the approaches to LaGuardia Airport were safe instead of taking action itself. Indeed, even the FAA has denied that the action it took constitutes a determination that can be relied upon by the Port Authority : the FAA has arg ued that the Panel Report was not an agency order and was advisory in nature. The Director, thus, failed to take into account the Port Authority’s failure to take (or even attempting to take) action to prevent the creation of a new hazard . Because the Po rt Authority failed to take “appropriate and reasonable action” to protect terminal airspace from the creation of airport hazards and incompatible land uses, it is in violation of Grant Assurances 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.
I II . STATEMENT OF FACTS- 11

- In 2006, the City’s Department of Sanitation (DSNY) issued a Comprehensive Solid Waste Management Plan to address the long

- term exportation and disposal of municipal solid waste from metropolitan New York City. This plan proposed refurbishing four closed transfer stations that were previously operat ed by the City. One of the four proposed facilities, NSMTS, will be located in the College Point section of New York, 2,206 feet from the landing threshold of Runway 13/31 at the Airport. See Engineering Report for the North Shore Marine Transfer Statio n Waste Containerization Facility

– Part 360 Permit Application, (“Part 360 Permit Application”) p. 30, Ex.5. At present, aircraft landing on Runway 31 and departing from Runway 13 fly directly over NSMTS. Moreover, after NSMTS becomes operational, barge s stacked with 48 containers of garbage from the NSMTS will pass less than 500 feet from the end of Runways 31 and 22, churning up the water and attracting birds. In addition, up to 20 fully

loaded garbage trucks will idle on the ramp over Flushing Bay, w aiting to enter NSMTS to unload. Id

. A. The Port Authority and FAA Raise Questions about the Height of NSMTS The FAA has been aware of the proposed construction of the NSMTS since at least 2004. On November 10, 2004, the FAA received a Notice of Propo sed Construction or Alteration,
Form 7460

- 1 from the City indicating that it planned to build a Marine Transfer Station to a height of 110 feet above ground (and sea) level. Draft Panel Report, Ex.6, p.6. On January 28, 2005, the FAA issued its Determina tion of Presumed Hazard, stating that: “[t]he 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 airs pace or air navigation facilities. . . . If the structure were reduced in height so as not to exceed- 12

- 48 feet above ground level (48 feet above mean sea level), it would not exceed obstruction standards and a favorable determination could subsequently be is sued.” Jan. 28, 2005, Determination of Presumed Hazard, Ex.7, p.1. According to the Panel Report, in April, 2005, NSMTS “was identified as an obstruction under the Code of Federal Regulations Part 77 and was released for public comment . . . ” Draft
Pa nel Report, Ex.6, p.6. Subsequently, Tom Bock, the Port Authority’s General Manager for Airspace Modernization, Technology & Operational Enhancement, sent a letter to Robert Alexander, Obstruction Evaluation Specialist for the FAA, on May 9, 2005, objecti ng to the construction of NSMTS and requesting that the FAA determine that NSMTS is a hazard to air navigation because NSMTS “is clearly inside the [Runway Protection Zone].” Tom Bock Letter, May 9, 2005, Ex.8. The FAA did not accede to the Port Authorit y’s request, and on September 19, 2006, determined that the NSMTS presented no hazard to air navigation despite the fact that (1 ) the structure was not reduced in height so as not to exceed 48 feet above ground level; and (2) the structure was located in the Runway Protection Zone. See , FAA No Hazard Determination, September 19, 2006, Ex.9. This final determination prompted both the Port Authority and the Queens Congressional delegation to take action. On October 17, 2006, the Port Authority filed its “ Petition of the Port Authority of New York and New Jersey for Review of Determination of No Hazard to Air Navigation, Aeronautical Study No. 2004

- AEA

- 3159

- OE” with the FAA (“Petition for Review”). Petition for Review, Ex.10. Among other things, the Port Authority’s Petition for Review alleged that the NSMTS was within the Runaway Protection Zone (RPZ), that the construction of NSMTS would impair the ability of LGA to install a precision approach- 13

- with lower visibility minimums, that it would have a detrime ntal effect on plans to increase the Airport’s efficiency, and that it would impair the Port Authority’s and FAA’s efforts to relieve air traffic congestion in the New York area. Petition for Review, Ex.10, pp. 1, 3

- 8, 10

- 15. Indeed, since the Port Autho rity’s filing of its Petition for Review, the situation with respect to flight delays and congestion in the New York area has gotten worse. See, e.g., New York Flight Delays Have Three Main Causes, But More Work Is Needed to Understand Their Nationwide Ef

fect, Federal Aviation Administration, Report Number AV

- 2011

- 007, October 28, 2010,
Ex.11. On October 23, 2006, the Queens Congressional delegation 3 sent a letter to then

- FAA Administrator Marion C. Blakey stating that “constructing a 110

- foot tower appro ximately 1900 feet from the end of a busy runway in the midst of one of the most densely populated cities in the world is, at best, foolhardy. Common sense dictates that a different location nowhere near the airport would be suitable for this project.” Q ueens Delegation Letter, Ex.12, p.1. The Letter went on to state that, “[o]n January 28, 2005, the Federal Aviation Administration (FAA) determined that the project was ‘presumed to be a hazard to air navigation.’ However, on September 18, 2006, without any change to the proposal, the administration determined that the Marine Transfer Station posed ‘no hazard to air navigation.’ We would like to inquire, and for the FAA to disclose, what considerations were made that prompted this change in the determinat ion over the past year.” Id. Upon information and belief, the FAA has never publicly replied to the Queens Congressional Delegation’s request.

3 The Queens delegation consisted, at the time, of Representatives Gary L. Ackerman, Carolyn B. Maloney, Anthony D. Weiner, Joseph Crowley and Gregory W. Meeks.- 14

- Then, on December 27, 2006, the City filed its Final Application for an operating and construction permit from the New York State Department of Environment and Conservation. During the latter part of 2006 and the first few months of 2007, the City and the Port Authority had discussions regarding NSMTS that resulted in the Port Authority withdrawing its Petition fo r Review. Bock, February 28, 2007, Letter, Ex.13. The Port Authority claimed that because “the Department of Sanitation was able to redesign the building high point to a height of 100.06” and it was able to clarify the “the specific corner points of the building, allowing [the Port Authority] the opportunity for a more detailed review of the potential impacts . . .” its Petition for Review was no longer applicable. 4 Id. However, because the height of NSMTS changed, a new aeronautical study was necessary causing the City to submit “a revised proposal (with building height of 100 AMSL) to the FAA . . .” Draft Panel Report, Ex.6, pp.6

- 7.
B. The FAA and Port Authority Raise Questions about Installing a Precision Approach on Runway 31 to Assist in Re lieving Congestion at the Airport. After the FAA began reviewing the City’s new proposal, it noticed that NSMTS would interfere with the long standing plan to install a precision approach for Runway 31 at the Airport, which included lowering the visibility minimums. In a March 12, 2007, e

- mail to Robert Alexander, the FAA’s John Dermody expressed his concerns about the conflict between NSMTS and the Airport’s long

- planned and highly anticipated precision approach stating that he “[j]ust wanted to make sure the FPO [Flight Procedures Office] was taking the future LGA RW 31 ILS

4 There is, however, no indicati on in the Final Engineering Report that was submitted to New York State DEC that the design that was approved by the DEC contains the 100.06 height instead of the 110.00 height. See, e.g., Sheet 75 of the Final Engineering Report, Ex.5. Upon information and belief, the Final Engineering Report and the Permit have not been amended to reflect the 100.06 foot height.- 15

- into account during their analysis (the glideslope antenna will be installed shortly under a congressional project). . .” Id. Eleven days later, on March 23, 2007, Don Krager, FAA Eastern FPO (NY), also warned about th e conflict between NSMTS and the planned precision approach to Robert Alexander: “[i]f the obstacle [ i.e., NSMTS] were to be built the ILS approach would be denied since you cannot adjust the DA [Decision Altitude] on proposed obstacles. And I’m sure they are not going to raise the G/S [Glide Slope] or displace the threshold based on a proposed obstacle.” Krager March 23, 2007, E

- Mail, Ex.15. The Port Authority also recognized that the construction of NSMTS presented an obstacle to implementation of a precision approach. In a July 2, 2007 letter to Steven Urlass of the FAA, Tom Bock expressed his long and short term goals for the Airport with respect to Runway 31: “[a]s you are aware, the FAA is in the process of installing a glide slope on Runway 31. It has taken years to finally get this project off the drawing board and into production.” Bock, July 2, 2007, Letter, Ex.16. Mr. Bock recognized that there are obstacles preventing the installation of the precision approach: [h]owever, it our long

- te rm plan to study these obstructions and work to resolve them one by one with our goal to enable a CAT II approach on Runway 31. As you know, in snow conditions, LGA usually has a north or northeast wind, and the visibility minimums on Runway 4 are 4,000 R VR. By adding an approach lighting system to Runway 31 and removing a few of the closer

- in obstacles we will achieve better landing minimums and eventually a CAT II approach. This will help our area capacity in poor weather tremendously. Once the glide slope is installed, we will begin the study to determine the most expeditious means to gain lower landing minimums on Runway 31. Id. (emphasis added). Mr. Bock also outlined some of the issues the installation of a precision approach would address, noti ng that “[b]y removing some of the obstacles southeast of the- 16

- airport 5 we can hopefully reduce these impacts to our customers.” Id. Needless to say, the City was not pleased with the Port Authority’s statement that it intended to implement a precision approach that conflicted with the City’s proposed construction of the NSMTS. On February 20, 2008, Edward Skyler, New York City Deputy Mayor for Operations, issued an ultimatum to Anthony E. Shorris, Executive Director of the Port Authority regarding the issue of precision approaches and the construction of NSMTS. Mr. Skyler told Mr. Shorris that the City’s analysis “shows that establishing a Category II ILS on Runway 31 currently appears infeasible due to the already

- existing obstacle environment and a n umber of other technical issues. . . .” Skyler February 20, 2008, Letter, Ex.17, p.2. Skyler then told Shorris that the City was prepared to meet and “reach agreement on the changes the City needs to make to the design of the North Shore MTS to clear the way for installation of a Category I ILS.” Skyler Feb. 20, 2008, Letter, Ex.17, p.3. Implicit in Mr. Skyler’s statement was that there would be no discussion of relocating NSMTS or the installation of a CAT II approach. Mr. Skyler’s assertion that inst allation of a Category II ILS on Runway 31 is “infeasible” because of the existing obstacle environment and “other technical issues” is no longer accurate. The “existing obstacles” to which Mr. Skyler referred in his letter presumably are two silos owned by Ferrara Brothers, which are located on a lot adjacent to the NSMTS. Mr. Skyler fails to recognize that significant progress has been made in eliminating these obstacles. Ferrara Brothers consistently has stated that it is willing and able to lower the height of the silos so that the Airport can establish a CAT II approach for Runway 31 with lower visibility minimums.

5 This would presumably include NSMTS, although it is not specifically mentioned in Mr. Bock’s letter.- 17

- See, e.g., Ferrara Brothers’ August 30, 2010, Letter, Ex.18 (“. . . we understand that, but for our silos, the PANYNJ would be able to i nstall an Instrument Landing system for Runway 31 at LaGuardia. . . . We believe that our silos can be lowered to an acceptable level while still maintaining the integrity and efficiency of our manufacturing process”). Contrary to the assertions and assum ptions contained in the Director’s Determination, neither the Port Authority nor the City of New York took any action to determine the cost or the feasibility of lowering the Ferrara Brothers silos. Moreover, the approach that Skyler proposes (installatio n of a “Category I ILS at Runway 31 slight adjustments to the operational range of the North Shore MTS’s west gantry crane”) would not significantly reduce air traffic delays at the Airport due to the fact that visibility minimums would remain over 1 mile. Skyler Feb. 20, 2008, Letter, Ex.17, p.3

. Nor would the installation of a CAT I ILS on Runway 31 with visibility minimums more than 1⁄2 mile achieve the goals outlined by Mr. Bock in his letter to Mr. Urlass. Williams Aviation Letter Report, Ex.19, p.2. On May 29, 2008, after apparently bowing to political pressure, the Port Authority surrendered its interest in increasing capacity and its desire for safe air operations and rescinded its request for the establishment of a CAT II approach for Runway 31 . Bock, May 29, 2008, Letter, Ex.20, p.1. In its place, the Port Authority requested the less than optimal course of action of utilizing “an offset localizer and develop[ing] a glideslope angle of 3.1 degrees to obtain a Decision height of 280 HAT with a n RVR of 5,000.” Id. While these would not resolve the issues with Runway 31 and congestion at the Airport, it would allow the City to construct
NSMTS. In addition, the Port Authority knew at this time it would be difficult, if not impossible,- 18

- to install the offset localizer at the airport, leaving LaGuardia without the possibility of a precision approach on Runway 31. The Port Authority was not alone in bowing to political pressure. The FAA also caved in on its duty to protect the airspace a nd safety. As Guillermo Felix, the FAA Eastern Region’s Team Leader for Airport Standards/ACSI, told Sharon Perry in a October 10, 2008, e

- mail: “[i]t is my understanding that HQ 6 is sending a determination of no hazard provide [ sic ] the PANYNJ

remove so me projects form [ sic ] their Capacity Enhancement list. The two projects I recall was [sic] to eliminate CAT II of Runway 31 and NOT to require removal of concrete plant on the approach to Runway 31. We are not reopening the cases, so the ‘objection’ wil l remain but HQ is ‘overruling’ our call based on the above conditions.” Felix, October 10, 2008, E

- Mail, Ex.21. On September 19, 2008, the FAA issued its second Determination of No Hazard to Air Navigation, for the NSMTS high point of 100 feet above gro und and sea level. September 19, 2008, No Hazard Determination, Ex.22. On October 24, 2008, the FAA issued a Determination of No Hazard to Air Navigation for the Crane Container Handling Gantry Crane, located 97 feet above ground and sea level. 7 October 24, 2008, No Hazard Determination, Ex.23. Both of these No Hazard Determinations were conditioned on the Port Authority adhering to its plan “to install an offset localizer with 3.1 degree glide slope angle which will allow for a decision height of 280
f

eet above touchdown with visibility of 5000 feet.” Ex.22, p.4, Ex.23, p.4. Less than a year later, however, it was clear from the Port Authority’s Master Plan for LaGuardia that the Port

6 It is not clear who at “HQ” Mr. Felix is referring to in his e

- mail. 7 Both of these No Hazard Determinations required that the City submit a FAA Form 7460

- 2 at least 10 days prior to the start of construction. It is not known at this time whether the City has complied with this requirement.- 19

- Authority had no intention of giving up on installing a precision ap proach with visibility minimums less than 3⁄4 mile, which would result in NSMTS being in the RPZ. Bock March 23, 2009, E

- Mail, along with attached graphic, Ex.54. C. After the “Miracle on the Hudson,” NSMTS Is Seen by the Public as a Hazardous Bird Att ractant Jeopardizing the Safety of Terminal Airspace. On January 15, 2009, an event took place that, although not directly tied to the construction of NSMTS, would have a profound effect on the project. U.S. Airways Flight 1549 took off from the Airport and flew into a flock of geese soon after take

- off. This resulted in what has come to be known as the “Miracle on the Hudson”

– where Capt. Chesley “Sully” Sullenberger successfully landed the plane in the Hudson River with no loss of life. This inciden t raised yet another concern about locating NSMTS so close to the end of the Runway

– the fact that waste transfer stations, like NSMTS, attract birds that pose a threat to aviation safety. Soon after the “Miracle on the Hudson” the public and local offic ials began to express concern that NSMTS would endanger airplanes by attracting flocks of birds. The Queens Chronicle, March 12, 2009, Ex.24. The Queens Congressional delegation, once again mounted an opposition to NSMTS, this time citing the “recent bir d

- induced crash of U.S. Air Flight 1549 on January 15, that landed safely in the Hudson River, as stark proof of the dangers that birds attracted by sanitation waste

- hauling trucks would bring to LaGuardia Airport and surrounding communities.” Id. The Ci ty responded to these allegations by asserting that because NSMTS was a “fully

- enclosed” facility that would not be located on airport property or in the RPZ, it was being constructed in an acceptable place. Id. In response, on May 21, 2009, Rep. Gary- 20

- Ac kerman offered an amendment to the FAA Reauthorization Act that provided: That Congress finds the FAA did not follow FAA policy statements in determining whether the proposed College Point Marine Transfer Station in New York, if constructed, would constitu te a hazard to air navigation. It also requires the FAA Administrator to take such actions as may be necessary to designate the proposed College Point Marine Transfer Station in New York City, New York, as a hazard to air navigation. Bill Summary & Stat us, Ex.25. The amendment was agreed to by a voice vote, and the FAA Reauthorization Act was later passed by the House. Congressional Record, p.H5977, Ex.26. On June 10, 2009, William J. Flanagan, Manager of FAA’s Airports Division in the Eastern Regio n, sent a letter to Deputy Commissioner Harry Szarpanski of DSNY. In that letter, Mr. Flanagan told Mr. Szarpanski that, in order to meet FAA standards, NSMTS needed to meet certain recommendations. The recommendations set forth in Mr. Flanagan’s letter included several items had to be added to the Engineering Report. The letter also required that the DSNY enter into a Memorandum of Understanding with the Airport to address wildlife hazard issues. Flanagan, June 10, 2009, Letter, Ex.27, p.1. 8 Mr. Szarpanski replied on July 9, 2009, stating that DSNY would comply with all of the FAA’s recommendation. Among other things, Mr. Szarpanski confirmed that DSNY would “work with NYSDEC to amend the [Engineering] Report to include the specific provisions yo u have requested” and that it would “enter into a Memorandum of Understanding with the Port Authority, the FAA and/or USDA to carry out the recommendations in your letter.” Szarpanski July 9, 2009, Letter, Ex.28, p.1. As a result of this public outcry against the construction of NSMTS, during the autumn of

8 The Director uses this letter as the basis for his determination that the NSMTS was outside the RPZ. However, the letter does not state the bases on which that conclusion is made and fails to mention that the Port Authority still considers the NSMTS to be within the RPZ as late as May, 2009. See Exhibit 54.- 21

- 2009, the Secretary of Transportation “held a series of meetings with the New York Congressional delegation, the City of New York, FAA, and USDA personnel. In the interest of safety, it was determin ed that the FAA and USDA should engage in a joint study to re

- examine the topic [of NSMTS as a wildlife attractant].” Draft Panel Report, Ex.6, p.7. In February, 2010, however, before the FAA and USDA released their draft report, the FAA published its “Evaluation of Trash

- Transfer Facilities as Bird Attractants” (the “Evaluation Report”), which refuted the City’s contention that the NSMTS was safe because it was purportedly an “enclosed” facility. 9 The Evaluation Report concluded, inter alia , that the number of birds using a trash transfer facility is not related to whether or not the facility is enclosed: The number of birds using trash

- transfer stations differed among facilities of different building type, but not in a consistent pattern. It was orig inally hypothesized that the number of birds actually using trash
- transfer facilities would decrease as the trash
transfer buildings became more enclosed. Trash

- transfer facilities with more open walls would be expected to have more bird use as the refuse would potentially be more exposed and available to the birds. However, the data from this study do not support that hypothesis. Evaluation of Trash

- Transfer Facilities as Bird Attractants, Ex.29, p.13 (“FAA Evaluation”). 10 In addition, the FAA Evaluatio n stated in its “Summary” that “. . . trash

- transfer facilities within airport environments should be evaluated on an individual basis to determine whether they attract or influence the movement patterns of hazardous wildlife and if the location of such a facility increases the risk to safe aircraft operations.” FAA Evaluation, Ex.29, p.15. The

9 The primary author of the Evaluation Report was Brian E. Washburn, one of the Panel members. 10 The Panel Report misstates the conclusions of the Evaluation Report. In response to public comments, the Panel Report states the Evaluation Report “provide[s] that fully enclosed trash transfer stations are generally compatible with safe operations.” Panel Report, p.A

- 15.- 22

- Director’s Determination does not address the fact that the NSMTS is not an enclosed facility or that the FAA now considers the design of trash transfer stations n ot to be related to whether they attract birds. On April 23, 2010, the F AA/USDA Panel issued its draft Evaluation of the North Shore Marine Transfer Station and Its Compatibility with Respect to Bird Strikes and Safe Air Operations at LaGuardia Airport (“ Draft Panel Report”), Ex.6. Public comments were accepted through May 24, 2010. The Panel received comments from Representatives Gary Ackerman and Joseph Crowley of the U.S. House of Representatives (Ex.30); State of New York Assemblywoman Nettie Mayerso hn (Ex.31); Air Line Pilots Association, International (ALPA) (Ex.32); Dr. Russell P. DeFusco, Ph.D., U.S. Air Force (ret.) (Ex.33); and Mr. Kenneth D. Paskar (Ex.34). All of the persons submitting comments opposed the construction of NSMTS.
See , Panel R eport, Ex.6, Addendum. The comments raised a myriad of issues, such as:

● the inadequacy of the study;

● the failure to regulate wildlife hazards at NSMTS if built;

● prior FAA studies and advisory circulars that suggest that construction of NSMTS is inconsistent with FAA policy, guidance, regulations and federal law; and,

● the failure of the City to include any type of wildlife and wildlife hazard damage management inform ation. Id. On September 2, 2010, the FAA and the USDA issued their joint, final report regarding the NSMTS. See, Evaluation of the North Shore Marine Transfer Station and Its Compatibility with Respect to Bird Strikes and Safe Operations at LaGuardia Airport , August, 2010, (the “Panel Report”), Ex.35. Like the draft report, the final Panel Report simply assumed that- 23

- NSMTS would be built at its College Point location regardless of its effect on safe air operations. In other words, nothing in the Panel Report suggests that the Panel n ever considered the threshold question of whether the NSMTS should be built at all at its current location. The Panel relied heavily on data collected at another transfer facility (the Staten Island Rail Transfer Station) despite the fact that the FAA’s position in the FAA Evaluation is that each transfer station “should be evaluated on an individual basis.” Cf., Evaluation Report, Ex.29, p.15 with Panel Report, Ex.35, p.17. These inadequacies in the Panel Report were n ot addressed by the Director in the Director’s Determination. Instead, the Director assumes the adequacy of the Panel Report. While the Panel Report did not go far enough in addressing the risks to public safety resulting from construction of the NSMTS, the Panel Report did describe the significant safety risks that NSMTS would create if constructed in accordance with the Permit and made recommendations for changes to the construction and operational plans of the NSMTS. The Panel Report made clear, at a minimum, that construction and operation of the NSMTS as designed and permitted presents an unacceptable risk to public safety. The Panel Report recognizes the significant risk that bird strikes pose at the Airport. The airport is bordered on the north, e ast, and south by Flushing Bay (part of Long Island Sound) and on the west by the highly urbanized (i.e., residential and commercial properties), densely populated areas of northern Queens County. As with other airports located directly adjacent to large water bodies, large populations of various species of birds that live in or near aquatic environments, such as gulls and waterfowl, can be found very near LaGuardia Airport. Due to presence and behavioral patterns (e.g., flocking , soaring) of these birds , the risk of bird strikes is a significant concern at LaGuardia Airport as well as at other airports located on waterways. Panel Report, Ex.35, pp.9

- 10. The Panel Report’s risk assessment concluded that NSMTS, as- 24

- designed and permitted, presents a high risk for hazardous bird activity. Panel Report, Ex.35, pp.20

- 21. The Panel Report further concluded that the high risk for hazardous bird activity could be reduced, if at all, only through changes to the building design, following strict operational
proc edures and developing and implementing an integrated wildlife hazard management plan. Panel Report, Ex.35, pp.21

- 22. In other words, the NSMTS would remain a high risk for hazardous bird activity, but assuming that it was built at College Point, there wer e certain mitigation measures to reduce the risk. In a letter dated September 3, 2010, the City purported to accept the Panel Report’s findings and agreed to adopt the Panel Report’s recommendations. In the meantime, congestion and delays at LaGuardia an d the other New York, New York area airports continue unabated.
See , New York Flight Delays Have Three Main Causes, But More Work Is Needed to Understand Their Nationwide Effect , Federal Aviation Administration, Report Number AV

- 2011

- 007, October 28, 2010 , (“the principal causes of New York flight delays are crowded airspace, airport capacity restraints, and continued growth in air traffic”), Ex.11. Although the Director relies on the Panel Report in reaching his conclusion that the “FAA determined that t he NSMTS” did not present a hazard to aviation safety, the FAA argued in its Petition for Review that the Panel Report is not an agency order and is only advisory in nature , therefore it cannot be relied upon as an official determination of the FAA. One o r the other is factually incorrect: either the Director cannot rely on the Panel Report for the position that the FAA determined that the NSMTS is no t a hazard to aviation safety, or, if the Director is correct that the Panel Report is a FAA determination that the NSMTS is FAA agency order , its position in the Second Circuit Petition for Review that the Panel Report is not an “agency order” is frivolous. Moreover, the Director- 25

- exhibits the underlying inherent double standard within the Part 16 process: i f Complainants cannot call the Panel Report into question as part of the Part 16 Process, then neither the Port Authority nor the Director can rely on it as a justification for the Port Authority’s failure to take appropriate action under its Grant Assuran ces. I V. ARGUMENT 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 34 enforce that duty. There can be no doubt that NSMTS, as it is currently designed and permitted, is an impedi ment to safety at the Airport. That was the conclusion of the FAA/USDA Panel. Panel Report, Ex.35, pp.20

- 22. T he 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. There are several ways in which NSMTS interferes with the safety of air operations at the Airport. First, it is located in the RPZ for 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 visib ility 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 situat ion that is already complex and difficult to manage. Finally, the Panel Report, which t he Port Authority and the Director attempt to hide behind, is flawed. For all of these reasons, the Port Authority is in violation of the Grant Assurances that th ey ar e legally bound to follow . Furthermore, the- 26

- Director’s Determination failed to base his determination on these probative, reliable and substantial facts and his analysis of the legal issues were not consistent with applicable precedent and policy

. 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 the refore Erroneously Concluded that the Port Authority Has Not Violated Grant Assurances 19, 20, 21 and 34. The function of a RPZ is to enhance the protection of people and property on the ground as well as the aircraft (and their occupants) in the air. This is achieved through airport control over RPZs, both current and planned. Such control includes clearing current and planned RPZ areas (and maintaining them clear) of incompatible objects and activities. AC 150/5300

- 13, Airport Design , ¶ 212. Grant Assurances 19, 20 and 21 require airport owners and operators to keep the RPZ free of incompatible objects an d activities. In executing this responsibility, airport owners and operators must take into consideration, not only existing conditions, but also planned airport enhancements in their land use compatibility determinations. FAA Order 5190.6B, ¶
7.13. Th us, in determining whether a land use in the RPZ is compatible, according to FAA Order 5190.6B, airport owners and operators must consider the planned RPZ as well as the
current RPZ. In addition, Advisory Circular 150/5200

- 33B, Hazardous Wildlife Attracta nts On or Near Airports , specifically states that “[e]nclosed waste

- handling facilities that receive garbage behind closed doors; process it via compaction, incineration, or similar manner; and remove all residue by enclosed vehicles generally are compatib le with safe airport operations, provided they are not located on airport property or within the Runway Protection Zone (RPZ) .” AC 150/5200

-- 27

- 33B, ¶ 2

- 2(d) (emphasis added). The failure of an airport owner and/or operator to comply with an Advisory Circula r issued by the FAA is a violation of Grant Assurance 34. Thus, to the extent that NSMTS is in the RPZ, whether current or ultimate, it constitutes a violation of Grant Assurances 19, 20, 21, and 34. Finally, the City has specifically agreed to ensure t hat it will not erect any obstructions or hazards to air navigation: 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 (y) within th e boundaries of the Runway Protection Zones, as such may exist from time to time. Lease, § 21.1. Thus, not only does the City have the obligation not erect any structure in the Runway Protection Zone or that penetrate any surfaces, the Port Authority has an obligation ensure that the City (1) does not construct them in first place; and (2) remove them. Since the

a eronautical studies clearly show that the NSMTS will project into the horizontal surfaces, conical surfaces, primary surfaces, approach surfaces and/or transitional surfaces and the Respondent has shown that the NSMTS will be located in the RPZ, the City has the obligation under the Lease not to build the NSMTS in that location . Therefore, regardless of whether the FAA issued a Determinat ion of No Hazard (that is, the NSMTS is still an obstruction regardless of whether FAA has determined it not to be a hazard), the Port Authority had a duty under its lease to ensure that the City did not erect any such obstructions. The Director failed to take this argument into account in his Determination. 1. NSMTS is located in the current RPZ.- 28

- The Port Authority and the FAA have on several occasions stated that the NSMTS is within the boundaries of the current RPZ. First, Tom Bock, General Manag er for Airspace Modernization, Technology and Operational Enhancement for the Port Authority stated in a May 9, 2005, letter to Robert Alexander, of the Federal Aviation Administration, that “[t]he FAA requires airport operators to refrain from building an y object in the Runway Protection Zone. This building is not on airport property, but it is clearly inside the RPZ .” Bock, May 9, 2005, Letter, Ex.8. Then again, in drafting a Petition for Review of the FAA’s Determination of No Hazard to Air Navigation , Aeronautical Study No. 2004

- AEA

- 3159

- OE, (“Petition for Review”), Arnold D. Kolikoff, Assistant Chief, Opinions and Appeals Division of the Port Authority stated on behalf of the Port Authority that “[t]he Determination concerns a proposed structure with in the Runway Protection Zone of Runway 13/31 (‘Runway 13’ or ‘Runway 31’).” Petition for Review, Ex.10. The Port Authority is not the only agency that has stated that NSMTS is located in the RPZ. The FAA has on at least a couple of occasions also state d that the NSMTS is the Runway Protection Zone. In the September 18, 2006, Determination of No Hazard to Air Navigation, the FAA states that “[w]hile the structure does not constitute a hazard to air navigation, it would be located within the Runway Prote ction Zone (RPZ) of the LaGuardia Airport runway 31.” Ex.9, p.1. About six months later, Robert Alexander, an obstruction specialist with the FAA’s Eastern Region, told Kevin Haggerty of the FAA in an e

mail that the NSMTS “is located within the RPZ for [Runway 31]” and that “[t]he biggest issue with the Port is that they objected to this because it is in the RPZ.” Feb. 22, 2007 Alexander E

Mail, Ex.39.- 29

- Curiously, however, on February 28, 2007, Tom Bock sent a letter to Ms. Ellen Crum at the Federal Avi ation Administration requesting to withdraw the Petition for Review. He claimed that “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 buildin g . . . . As a result of this new information, we have determined that, the building is now located outside the RPZ . . .” Bock, Feb. 28, 2007, Letter, Ex.13. The Director ignores the fact that that the coordinates of the NSMTS did not change enough to m ove the building from a position inside the RPZ to a place outside the RPZ, especially since NSMTS is being built at the same location as a previous transfer station. Indeed, the Port Authority based its initial determination that NSMTS was located within the RPZ on the Notice of Proposed Construction or Alteration, Form
7460

- 1 (“Form 7460

- 1”). See, Petition for Review, ¶ 24, Ex.10, p.9. Form 7460

- 1 described NSMTS’ location as “Latitude 40

- 46

- 15.35 N NAD 83; Longitude: 73

- 50

- 57.49 W,” which is slightly farther away from Runway 31 than the coordinates the Port Authority claims in its 2007 letter placed NSMTS outside the RPZ. 11 Id. Thus, either the Director did not base his conclusion on the facts of the matter, or the Port Authority and the FAA lied abou t the placement of the NSMTS in the RPZ. Moreover, the distance from Runway 31’s threshold remained approximately the same between the Port Authority’s initial determination that NSMTS was in the RPZ and its later determination “upon review of the coordin ates” that it was outside the RPZ. On October 17,

11 The 2007 Letter lists the coordinates of the corners of NSMTS as being: Northwest Corner: 40

- 46

- 13.83 / 73

- 51

- 00.71; Southwest Corner: 40

- 46

- 12.03 / 73

- 50

- 59.37; Southeast Corner: 40

- 46

- 12.90 / 73

- 50

- 56.93; Northeast Corner: 40

- 46

- 14.58 / 73

- 50

- 57.74. Bock, Feb. 28, 2007, Letter, Ex.13, p.2. Included, for ease of reference, is a pr int out from Google Earth of those various points to show the relative proximity of the various points of reference. Ex.40.- 30

- 2006, the Petition for Review reported NSMTS as being “2206 feet from the approach end of Runway 13.” Petition for Review, ¶ 24, Ex.10, p.9. Using the coordinates supplied in Mr. Bock’s February 28, 2007 , letter to Ms. Ellen Crum of the FAA, the distance from the Northwest Corner of NSMTS (40 46 13.93 N / 73 51 00.71 W) to the threshold of Runway 31 (40 46 19.4573 N / 73 51 25.6016 W) is 2033.792 feet. See , Bock Feb. 28, 2007, Letter, Ex.13, p.2. “Upon review of coordinates,” then, NSMTS is actually closer to Runway 31’s threshold than in
Form 7460

- 1. Thus, 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. 12 Neither the Port Authority
nor t he Director offers any explanation for this discrepancy. 2. NSMTS is in the Ultimate RPZ Even if NSMTS is not within the current RPZ, it unquestionably is within the future planned (or “ult imate”) RPZ. Section 44718 of Title 49 of the United States Code requires a person proposing to construct a structure to report on the impact that the structure will have on the plans for the airport. In addition, Grant Assurances 19 and 20 require the o wners and operators of an airport to protect the terminal airspace and land use planning around the airport from encroachment. Since the long range plan of the Airport included the installation of a Category I or II ILS to LGA Runway 31, if NSMTS is const ructed on College Point, it will be located within the future, or “ultimate,” RPZ associated with the planned Category I or II ILS instrument approach procedure. The addition of a precision approach on Runway 31 would help

12 The Panel Report assumes that NSMTS will be constructed outside of the RPZ. Panel Report Ex.35, pp.1, 6. However, the Panel Repo rt offers no support for that assumption.- 31

- alleviate congestion at LaGuardi a. Again, the Director ignored the fact that a precision approach is needed to relieve congestion at LaGuardia. 13 In his July 2, 2007 letter to Steven Urlass, Tom Bock stated that the Port Authority was in the process of installing a glideslope on Runway 31, and that this glideslope would not only “allow for a consistent flight path to the airport, but would also reduce noise and air emissions for the airport neighbors.” Mr. Bock also acknowledged that current landing minimums, even with the glideslope in stalled, would be high due to the lack of approach lighting and some existing obstructions, but that it was “our long term plan to study the obstructions and work to resolve them one by one with our goal to enable a CAT II approach to Runway 31.” While a Category I ILS has visibility minimums as low as 2400 feet Runway Visual Range (RVR) (1⁄2 mile), a Category II ILS is designed for landing minimums half those of a standard Category I ILS, i.e. visibility minimums below 2400 feet RVR and as low as 1200 feet RVR (1⁄4 mile). In a letter from the City of New York Office of the Mayor to PANYNJ, dated February 20, 2008, Edward Skyler stated that “establishing a Category II ILS on Runway 31 currently appears infeasible due to the already existing obstacle environm ent, and a number of other technical issues.” Skyler then went on to support the installation of a Category I ILS in lieu of the Category II ILS, stating that “the Port Authority can begin installation of a Category I ILS at Runway 31, which will improve throughput at the airport and at the same time, allow the

13 The Director seems to rely on the fact that decision with respect to congestion at airports is an issue made by the airport operator. However, the FAA has consistently taken the position that relief of congestio n along the Eastern Seaboard is a federal issue that requires coordination amongst all of the airports from Philadelphia to Boston. Thus, failure to relieve congestion at LaGuardia becomes a federal concern in that is disrupts the FAA’s ability to impleme nt its airspace redesign

.- 32

- City to move forward with the reactivation of this important facility.” Skyler’s plan was then memorialized in the September 19, 2008, Determination of No Hazard and the October 24, 2008, Determin ation of No Hazard as a condition of the City obtaining such a Determination. See , Exs.23 and 24, p. 4. Mr. Skyler’s plan ignores the fact that the NSMTS would be located within the Runway 31 RPZ if either a Category II ILS or a Category I ILS with visib ility minimums lower than 3⁄4

- mile were installed to “improve throughput at the airport.” Since the current instrument approach procedures to Runway 31 specify approach visibility minimums of 1 mile or greater, the current Runway 31 RPZ is 1700 feet in len gth. But both the originally planned Category II ILS and the City of New York’s suggested Category I ILS have visibility minimums lower than 3⁄4 mile, which means that the future planned or “ultimate” RPZ for LGA Runway 31 extends 2500 feet, which clearly e ncompasses NSMTS. FAA AC 150/5300

- 13, Airport Design . Thus, regardless of whether the current plan is to implement a Category II ILS approach or a Category I ILS approach with visibility minimums of less than 3⁄4 mile, the NSMTS is located within the confi nes of the future planned, or “ultimate” RPZ for Runway 31. Moreover, the facts in this matter show that the Port Authority had no intention of changing its plan for a precision approach with less than 3⁄4 mile visibility minimums. Although Skyler’s plan was included as a condition of the City receiving the Determinations of No Hazard, less than a year later the Port Authority stated that a precision approach with less than 3⁄4 mile visibility minimums was still in LaGuardia’s Master Plan. On March 23, 2009 , Tom Bock wrote to Mac Gutman, a New York attorney who had filed an information request, that “ [i]f (or when) the FAA installs the glideslope equipment (they have been studying this for the last year) we will- 33

- have a precision approach and the RPZ will go out to 2500 feet.” Ex.54. Attached to the e

- mail was a graphic taken from the Port Authority Aviation Department’s Master and Site Planning Division indicating the plan for a 2500 foot RPZ. Ex.54 and attached to this Appeal as Exhibit 1

. There is only one conclusion in light of these facts: the planned RPZ goes out to 2,500 feet and NSMTS is squarely within it. Because neither the City nor the Port Authority took the ultimate RPZ associated with their planned Runway 31 ILS instrument approach enhancements into account when the decision was made to construct NSMTS at its current location, they are in violation of the Grant Assurances. Finally, it should be pointed out that even if the NSMTS is technically outside the RPZ, it is still very clo se to the RPZ and should be treated as such, since the intent of restricting transfer stations from the RPZ is to increase safety. Contrary to the positions offered by the Port Authority and the Director, those safety concerns do not magically disappear o nce the enclosed transfer station is outside the RPZ. 3. If NSMTS Is in the RPZ, Even the Planned RPZ, Then the Port Authority Ha s Violated Grant Assurances 19, 20, 21 and 34. The Handbook contains admonitions that sponsors protect the termin al airspace. Paragraph 7.13 of the Handbook, entitled “Hazards and Mitigation,” explains: the sponsor must protect instrument and visual flight operations, including established minimum flight altitudes. Adequate protection includes the clearing, removing , lowering, relocating, marking, lighting, or mitigating of existing airport hazards. It also includes protecting against establishment or creation of future airport hazards, including wildlife hazards. FAA Order 5190.6B, ¶ 7.13. The Handbook also gives an example of what constitutes a violation of this Grant Assurance:- 34

- If a sponsor has zoning authority and permits an obstruction to be erected near the airport that is found to be a hazard under 14 CFR Part 77, Objects Affecting Navigable Airspace , or th at results in penetration or in any other impact upon the airport’s approaches or use, the FAA may find that the sponsor is in violation of Grant Assurance 20, Hazard Removal and Mitigation

. FAA Order 5190.6B, ¶ 7.13. The Port Authority ha s permitted the construction of NSMTS, which penetrates and impacts the Airport’s approaches and use. Therefore, the FAA must find that the Port Authority is in violation of its Grant Assurances. As the FAA found in Town of Fairview Texas v. City of
McKin ney, Texas , FAA Docket no. 16

- 99

- 04, Director’s Determination on Remand, July 26, 2000, the Port Authority’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.
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 Preci sion Approach for Runway 31 in Violation of Grant Assurances 19, 20, 21 and 34. As the Port Authority pointed out in its Petition for Review, although the Airport is one of the world’s busiest, the airfield itself is small. It consists of only two perpe ndicular and intersecting 7,000 foot runways. Petition for Review, Ex.10, p.2. Runway 31, which is one of the busiest runways, is the only runway on the airfield that currently lacks a precision approach. 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 of the approach. Williams Aviation Letter, Ex.19.- 35

- The lack of a precision approach on Runway 31 has severe consequences not only for the Airpor t, but for the entire National Airspace System , particularly with respect to the east coast airspace redesign

. See, Petition for Review, Ex.10, pp.3

- 8; see also, FAA New York Flight Delays Report, Ex.11 (“The principal causes of New York flight delays are crowded airspace, airport capacity constraints, and continued growth in air traffic”). The Port Authority has a long history of restricting new construction that would limit the use of the airspace around the Airport. The Port Authority gave two examples in its 2006 Petition for Review: “the successful efforts with regard to the redevelopment of the historic RKO Keith movie theater in Flushing in 2005, and with regard to the redevelopment of the Flushing Municipal Parking Lot in 2006.” Petition for Review, Ex.10, p.3. Thus, the restriction of the use of the airspace caused by the construction of NSMTS was fully within the power of the Port Authority to prevent, as it did with respect to at least two prior projects. As such, the Port Authority is in violation of Grant Assurances 19, 20, 21, and 34. The FAA also knew that NSMTS was a hazard to the airspace and would block the implementation of a precision approa ch. John Dermody, an engineer for the FAA’s New York Airports District Office, stated in an e

- mail to Guillermo Felix, the FAA’s Airport Divisions Eastern Region’s Team Leader for Airport Standards, on March 13, 2007 that: I would think that we should be protecting the approach and departure surfaces and not allow new off

- airport buildings to be constructed up to the height of existing obstacles and further adding to the concentration of obstacles.
07

- AEA

- 1163

- OE (High Point)

- Penetrates the existing Thr eshold Siting Criteria (5300
- 13, appendix 2, category 6) by 0.4 feet (small amount).

- Penetrates the future Threshold Siting Criteria for the planned ILS (5300
- 13, appendix 2, category 9) by 39 feet.- 36

- - Outside of the existing Runway Protection Zone (RPZ) with 5,000 RVR, but if future minima was lowered below 3/4 mi. would be within RPZ

- Penetrates the Departure Surface (40: l) by approx. 42 feet, which would require mitigation IAW 5300
- 13 for penetrations greater than 35 ft. 07

- AEA

- 1169

- OE (N

- W corner)

- Penetrates the future Threshold Siting Criteria for the planned ILS (5300
- 13, appendix 2, category 9) by 15 feet.

- Just outside (25' beyond) the existing Runway Protection Zone (RPZ) with 5,000 RVR, but if future minima was lowered below 3/4 mi. would b e within RPZ.

- Penetrates the Departure Surface (40:1) by approx. 18 feet.
07

- AEA

- 1170

- OE (S

- W corner)

- Outside of the existing Runway Protection Zone (RPZ) with 5,000 RVR, but it future minima was lowered below 3/4 mi. would be within RPZ.
07

- AEA

- l171

- OE (S

- E corner)

- Outside of the existing Runway Protection Zone (RPZ) with 5,000 RVR, but if future minima was lowered below 3/4 mi. would be within RPZ.
07

- AEA

- 1172

- OE (N

- E corner)

- Outside of the existing Runway Protection Zone (RPZ) with 5,000 RVR, but if future minima was lowered below 3/4 mi. would be within RPZ

- Penetrates the Departure Surface (40:1) by approx. 14 feet. Dermody, March 13, 2007, E

- Mail, Ex.41 (emphasis in the original). All of these penetrations of the various surfac es are in violation of the City’s obligations under § 21.1 of the Lease. The Port Authority’s failure to enforce the provisions of its lease forbidding the City from constructing a structure that is an “obstruction or hazard to air navigation,” is a viola tion of the Port Authority’s duty under Grant Assurance 20. A few months later, in a July 2, 2007 letter to Steven Urlass of the FAA New York Airports District Office, Tom Bock underscored that allowing NSMTS would interfere with the plan to install a pre cision approach on Runway 31. Mr. Bock stated that the Port Authority was in the process of installing a glideslope on LGA Runway 31, and that the glideslope would not- 37

- only “allow for a consistent flight path to the airport, but would also reduce noise an d air emissions for the airport neighbors.” Bock, July 2, 2007, Letter Ex.16. Mr. Bock also acknowledged that current landing minimums, even with the glideslope installed, would be high due to the lack of approach lighting and some existing obstructions , but stated that it was the Port Authority’s “long term plan to study the obstructions and work to resolve them one by one with our goal to enable a CAT II approach to Runway 31.” Id. As stated above, while a Category I ILS has visibility minimums as lo w as 2400 feet Runway Visual Range (RVR) (1⁄2 mile), a Category II ILS is designed for landing minimums half those of a standard Category I ILS, i.e. visibility minimums below 2400 feet RVR and as low as 1200 feet RVR (1⁄4 mile). Williams Aviation Letter, Ex. 19. Moreover, the precision approach is necessary to assist in FAA’s efforts to relieve congestion at LGA thereby relieving pressure on the National Airspace System. As Mr. Bock pointed out in July 2, 2007, letter: These same obstructions and the short 7 ,000

- foot runways also preclude some aircraft from departing Runway 13 in warmer weather. When this occurs, the aircraft will usually request Runway 4 for departure, which is often used for landings on Runway 22 (opposite direction). In order to accommod ate the departure a very large gap in the arrival stream is required and this significantly reduces the capacity of the airport. . . . By removing some the obstacles southeast of the airport we can hopefully reduce these impacts to our customers. . . . If all goes well, we will see an eventual improvement in operating capabilities for the airport that is second in the nation in delays. Bock, July 2, 2007, Letter, Ex.16, pp.1

- 2. Implicit in Mr. Bock’s letter is the fact that the construction of NSMTS ensu res that the operating capabilities for the airport will not improve because instead of eliminating obstacles “to the southeast of the airport,” the City and the Port Authority are allowing yet another obstacle to be constructed.- 38

- In a letter from the City of New York Office of the Mayor to PANYNJ, dated February 20, 2008, Edward Skyler stated 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 issue s.” Skyler, Feb. 20, 2008, Letter, Ex.17. Mr. Skyler then went on to support the installation of a Category I ILS in lieu of the Category II ILS, stating that “the Port Authority can begin installation of a Category I ILS at Runway 31, which will improve throughput at the airport and at the same time, allow the City to move forward with the reactivation of this important facility.” Id. Mr. Skyler’s letter ignored the fact that adding another obstacle to the approach to Runway 31 effectively eliminated t he possibility of installing a Category II with low visibility minimums. In addition, due to the high visibility minimums, the City’s approach effectively would compromise any efforts to improve capacity and efficiency at the Airport. Mr. Bock’s plan to remove existing obstacles one

- by

- one, on the other hand, improves the Airport’s capacity. The effect of Mr. Bock’s plan would make possible the installation of a Category II ILS with visibility minimums as low as 1/2

- mile. The NSMTS will prevent visibili ty minimums from ever being established below 1 mile, thereby inhibiting future airport efficiency and capacity enhancements. Williams Aviation Letter. Ex.19. Since Grant Assurances 19, 20, 21 and 34 require that the owner and operator of an airport elim inate hazards to both the current and future airspace, the Port Authority is in violation of those Grant Assurances by virtue of allowing the construction of NSMTS, which is an obstacle to the safe and efficient operation of the Airport.- 39

- The Director’s reliance on Orange County Soaring Association v. Riverside County, California is misplaced. Again, the Director relies on FAA determinations that are not, according to the FAA, agency orders susceptible to judicial review and therefore inhe rently unreliable for a legal basis of the Director’s Determination. Thus, the Director should rely on FAA policy and guidance documents which, as pointed out by the Complainants, clearly indicate that the Port Authority has violated FAA policy by taking the position it took with respect to the
NSMTS. Second, the Director is flat out wrong in stating that that “Complainants do not present any evidence to the record that would refute the Respondent’s contentions that existing conditions that existing obsta cles exist, irrespective of the NSMTS, which would prevent the establishment of a precision approach to runway 31 with visibility minimums less than 3⁄4

- mile.”
See Reply, pp.14

- 18. In addition, the Director claims that there would be a “substantial cost

a ssociated with removing the obstructions,” but the fact of the matter is that no one knows what the cost would be because the Port Authority never even took the first steps to determine the cost. This is not “probative, reliable and substantial evidence.” The only conclusion that can be drawn is that congestion at LaGuardia and aviation safety at LaGuardia is of no concern to either the Director or to the Port Authority. The construction of the NSMTS sufficiently blocks any further attempts at the creati on of a precision approach at for Runway 31 at LaGuardia. 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 Attracta nt and Therefore The Port Authority Is in Violat ion of Grant Assurances 19, 20, 21 and 34. Even if NSMTS were outside the RPZ and did not conflict with the installation of a precision on Runway 31, it is indisputable that NSMTS is a wildlife attractant that will create- 40

- even more hazardous conditions for aircraft departing and arriving at the Airport , irrespective of what the Panel Report says or does not say . By allowing NSMTS to be constructed at College Point, the Port Authority has allowed a hazardou s wildlife attractant to be placed in extremely close proximity to the Airport in violation of their obligations and duties under Grant Assurances 19, 20, 21 and 34. It is clear from the Panel Report that NSMTS, as designed and permitted and even as modif ied , is a wildlife attractant and hazard to safe air operations. The Director failed to address the fact that , regardless of whether the Panel Report 14 determined that the NSMTS is not

a wildlife haz ard attract ant , a sponsor must use all of its reasonable efforts to ensure that it protects aviation safety and the airport’s area of operations. The Director’s Determination failed to take into account the fact that NSMTS is not an enclosed facility and therefore not in compliance with FAA guidance. 1. The Dir ector Failed to Take into Account that Locating NSMTS at College Point Fails to Comply with FAA Advisory Circulars 150/5200
- 33B and 150/5200
- 34A and Therefore Violates Grant Assurances 19, 20, 21 and 34. Both the Port Authority and the Panel Report rely heavily on § 2

- 2(d) of FAA Advisory Circular 150/5200

- 33B, Hazardous Wildlife Attractants On or Near Airports , which they seem to suggest “exempts” fully enclosed facilities from compliance with the separation distances contained in the Advisory Circular. As an initial matter, even though AC 150/5200

- 33B states that “fully

- enclosed waste facilities” are “ generally compatible with safe airport operations,” (see AC 150/5200

- 33B, § 2

- 2(d) (emphasis added)), the FAA still requires that a fully

- enclos ed facility actually be compatible with safe air operations:

14 The FAA has vociferously claimed in the 2 nd Circuit Litigation that the Panel Report is not an “agency order” and therefore not binding FAA policy.- 41

- Enclosed waste

- handling facilities that receive garbage behind closed doors; process it via compaction, incineration, or similar manner; and remove all residue by enclosed vehicles generally are compatible with safe airport operations, provided they are not located on airport property or within the Runway Protection Zone (RPZ). These facilities should not handle or store putrescible waste outside or in a partially enclosed structure accessible to hazardous wildlife. Trash transfer facilities that are open on one or more sides; that store uncovered quantities of municipal solid waste outside, even if only for a short time; that use semi

- trailers that leak or have trash clinging to the outside; or t hat 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 FAA considers these facilities incompatible with safe airport operations if they are located closer than the separation distances specified in Sections 1

- 2 through 1

- 4. AC 150/5200

- 33B, § 2

- 2(d). NSMTS does not meet the definition of an “enclosed waste

handling facility. Therefore, the Port Authority is in violation of Grant Assur ances 19, 20, and
21.

a. 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.” Although the City has described NSMTS in the Permit applica tion and elsewhere as a “fully enclosed” station, it is located on the same City

- owned lot as a garbage depot through which hundreds of garbage trucks enter and exit every day. Upon information and belief, garbage trucks frequently enter the depot without first being cleaned, and are serviced while the doors to the depot remain open. 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. Although the Advisory C ircular does not define “facility,” the primary author of the Advisory Circular, Edward Cleary, has stated that the word “facility” in the Advisory Circular was meant to be interpreted broadly: “[m]y definition of ‘facility’ included not just the structur es, but the entire site; everything within the perimeter fence.” Cleary, October 30, 2010, E

- Mail, Ex.42.- 42

- Since the garbage depot will be part of the NSMTS “facility” and is not “fully

- enclosed,” the entire facility cannot be characterized as being “full y - enclosed” under the § 2

- 2(d) definition. Moreover, the garbage trucks bringing refuse to NSMTS will not be “enclosed vehicles.” The City does not own “enclosed” vehicles, and upon information and belief, the City’s current budget does not provide for a cquiring any “enclosed” vehicles. In addition, upon information and belief, at least 10% of the garbage hauled to NSMTS will come from private contractors, who almost certainly will not be using enclosed vehicles. In sum, there does not seem to be any pl an for the City to operate NSMTS in accordance with the FAA’s guidelines. In addition, as a matter of current practice, the trucks entering and exiting the adjacent garbage depot are supposed to be enclosed, but the trucks using the facility are replete w ith exposed garbage (including food waste) that attracts wildlife. Lastly, even if NSMTS were to strictly follow its operational protocols, the plans for NSMTS call for up to twenty unenclosed trucks, loaded with garbage and exposed garbage clinging to th eir sides, to queue outside NSMTS on the ramp waiting to enter the facility ( see, Engineering Report, Introduction, Ex.5, p.30), which obviously magnifies the risk that these trucks will attract wildlife.
b. NSMTS does not meet the AC 150/5200
- 33B’s de finition of “enclosed facility” because it does not filter odors. In addition, NSMTS does not meet the § 2

- 2(d)’s definition of an “enclosed facility” because it does not filter odors. Advisory Circular 150/5200

- 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.” AC 150/5200

- 33B, § 2

- 2(d). The NSMTS does not use a filtration system for odor control. Instead, it uses “negative air- 43

- pressure” and “odor neutralizer” to control odors. Engineering Report, Ex.5. This is not sufficient under AC 150/5200

- 33B for consideration as a “fully enclosed trash transfer facility” and therefore the FAA should conside r NSMTS to be incompatible with safe airport operations and require that it be located outside the separation distances specified in §§ 1

- 2 through 1

- 4 of AC 150/5200

- 33B.

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. Even if NSMTS met the definition of a “fully

- enclosed” facility, it would still constitute a hazardous wildlife attractant. In February, 2010, the FAA published its “Evaluation of Trash

Transfer Facilities as Bird Attractants.” 15 Included in the FAA Evaluation was the finding that whether a facility is open or enclosed did not make a difference in terms of the facility’s ability to attract birds: The num ber of birds using trash

- transfer stations differed among facilities of different building type, but not in a consistent pattern. It was originally hypothesized that the number of birds actually using trash

- transfer facilities would decrease as the trash

transfer buildings became more enclosed. Trash

- transfer facilities with more open walls would be expected to have more bird use as the refuse would potentially be more exposed and available to the birds. However, the data from this study do not support t hat hypothesis. FAA Evaluation, Ex.29, p.13. Thus, the primary argument put forth by the Director and the Port Authority is undercut by the FAA Evaluation. Since AC 150/5200

- 33B’s statement that “fully enclosed trash transfer” facilities are “generally compatible” is premised on the notion that fully enclosed facilities will attract fewer birds, the FAA must reconsider its statement in AC

15 The primary author of the FAA Evaluation was Brian E. Washburn, one of the members of FAA/USDA panel.- 44

- 150/5200

- 33B that “fully enclosed facilities” are “generally compatible.” In this case, and particularly in light of the existing presence of substantial numbers of birds, the fact that NSMTS may be “fully enclosed” has no bearing on whet her it is compatible with safe airport operations. Because the Director failed to take into the fact that the NSMTS is a hazard to safe airport operations, the Director erroneously determined that the Port Authority has not violated the Grant Assurances b y failing to protect the terminal airspace and allowed a hazard to air operations to be constructed , basing that determination of fact that are not reliable, substantial or probative

. d. Even if NSMTS does meet the definition of an “enclosed facility ,” human factors will keep it from being compatible with safe air operations. The statement in AC 150/5200

- 33B that enclosed facilities are “generally compatible” depends on the assumption that these facilities will operated properly. As the FAA con cluded in the FAA Evaluation, whether a facility is enclosed or not has little impact on whether it attracts birds. Moreover, as human factors expert Roger Hughes stated in his comments on the Draft Report: The NSMTS will never be safe enough even with th e best crafted mitigating strategies. No human has designed and implemented the perfect defense or safety net (mitigating strategies) to preclude human error (also known as system error) from eliminating unacceptable risk. The building and operation of t he NSMTS is no exception. The risk will always remain unacceptable as humans are in control of evaluating, designing and implementing the NSMTS mitigating strategies. Hughes Report, Ex.43, p.1. The doors of the transfer station are a good example of h ow human factors can come into play. In theory, both NSMTS and the Staten Island Rail Transfer Station are equipped with- 45

- “quick open, quick shut” doors that prevent access and the escape of odors to the surrounding area. However, a picture in the Panel R eport shows the Staten Island facility with the doors up, and no trucks entering or exiting the facility. This strongly suggests that the facility often is used with its doors up, which surely attract birds to the garbage inside. Panel Report, Ex.35, p.1 8. There is no reason to believe that NSMTS would be used any differently. The Hughes Report identifies several other instances where human factors enter the equation and the result is increased risk to safe air operations. See, Hughes Report, Ex.43, pp .2

- 5. Panel Member Edward Cleary also raised this topic in testimony in opposition to a transfer station being built close to Dover Air Force Base in Delaware: They envisioned a “fully enclosed” station to be one where the doors open, trucks enter, trash is dumped and the trucks exit through another door which is then close. There should be odor control, and a process to ensure there is no leachate or trash attached to the trucks as they leave the facility. At one time the Atlantic County facility would have been a fully enclosed station. The doors are now open all the time during business hours, and the plastic strips are not fully in place. They do not use the air conditioning system to control odor. Even if fully enclosed, such a station may not com patible as sited. [Cleary] would strongly recommend not siting such a facility within 5000 feet [of the Air Force Base] since mistakes can be made and no facility is perfect. Testimony excerpts from Hegman v. Secretary of Department of Natural Resources and Environmental Control , Appeal No. 2000

- 10 (Environmental Appeals Board Oct. 21, 2002)), (“Dover AFB Transcript”), Ex.44, p.28. In sum, even if NSMTS were a fully enclosed facility, it still would consti tute a hazardous bird attractant , and thus the Port Authority would in violation of Grant Assurances 19, 20, 21 and 34 for failing to ensure that it was not constructed and for failing to take proper mitigation measures

.- 46

- 2. In considering whether NSMTS i s incompatible with safe airport operations, the FAA must consider the totality of circumstances. In considering whether NSMTS is incompatible with safe airport operations, the Director failed to take into account that the totality of the circumstanc es surrounding its location must be considered . This is especially true given that 150/5300

- 33B does not exempt fully enclosed facilities, but rather states that such facilities are “generally compatible” with safe airport operations. As noted above, the re may be instances where a fully enclosed facility is not compatible. This is one of those cases. NSMTS is located on a waterfront that already serves as a significant attractant for a variety of hazardous bird species, including European starlings, pigeons, and most notably, gulls.
See DeFusco Report, Ex.46, § III.2 (“The nearby inactive Flushing Meadows Airport provides a wildlife sanctuary near the facility that will attract a variety of birds that will interact with the trash transfer station. . . . . The natural habitat on and around the waterfront and marine traffic north of the facility attracts gulls and other potentially hazardous species near the facility and the airport.”); Merritt Report, Ex.47 at 3. The gulls, which can weigh as much as three pounds, present a particularly serious risk to aircraft arriving at, and departing from, LaGuardia Airport. Id. , at 7. Although the City has not yet begun to use the facility to dispose of garbage, significant numbers of gulls and other large birds already are visible at the NSMTS construction site. The Panel Report also recognized the hazardous environment in which the City is constructing NSMTS. In describing the location of NSMTS, the Panel Report warned that: Given the location of the propos ed site of the North Shore MTS on Flushing Bay . . . the potential exists for large numbers of many species of birds associated with marine and/or urban environments to be present on or near the proposed building site. Historical and current observations of birds clearly demonstrate that gulls and other birds are frequently- 47

- present in large numbers within the general vicinity of the proposed North Shore MTS site. . . . Ducks, geese, and gulls made up the majority of birds observed on or near the airport . . . . In addition, on several occasions during this study, the technical panel of experts and other wildlife biologists observed gulls at several locations adjacent to LaGuardia Airport and in the immediate vicinity of the proposed North Shore MTS site. F or example, members of the technical panel observed gull use of mud flats near LaGuardia Airport. These observations are consistent with previously documented gull activity gathered during wildlife monitoring at LaGuardia Airport. Additionally, the long

t erm monitoring data collected at the airport (2004−2009), as well as other studies of birds within the New York City area, clearly show that bird activity and numbers within these environments is dynamic and likely influenced by several environmental facto rs, such as weather patterns, tidal cycles, and other seasonal influences (see LaGuardia Airport Wildlife Hazard Assessment, Shooting Gulls to Reduce Strikes with Aircraft at John F. Kennedy International Airport, 1991−2008). Panel Report, Ex.35, pp.11

- 12 . The Panel Report also concluded that the NSMTS, as designed and permitted, represents a substantial risk of hazardous bird activity. The technical panel recognizes that the environment surrounding the proposed MTS location inherently supports population s of some birds that can be hazardous to aviation safety and that these population levels can vary over time for various reasons. However, the highest risk posed to safe aircraft operations by birds would likely occur if the design and operation of the pro posed MTS did not consider wildlife issues [, which it currently does not]. This level of risk would be associated with increased bird movements (primarily gulls) flying to and from the MTS, especially if these movements occurred within the flight paths of aircraft approaching or departing from LaGuardia Airport. Panel Report, Ex.35, p.20. It is precisely this type of situation that the FAA sought to address in AC 150/5200

- 33B when it stated that a land use must be considered in the context of its environment, even if the land use on its own would not constitute a hazardous wildlife attracta nt. Section 2

- 8 of AC 150/5200

- 33B, Synergistic Effects of Surrounding Land Uses states that There may be circumstances where two (or more) different land uses that would not, by themselves, be considered hazardous wildlife attractants or that are located outside of the separations identified in Sections 1

- 2 through 1

- 4 that are in such an alignment with the airport as to create a wildlife corridor directly through the airport and/or surrounding airspace. An example of this situation may involve a lake loc ated outside of the- 48

- separation criteria on the east side of an airport and a large hayfield on the west side of an airport, land uses that together could create a flyway for Canada geese directly across the airspace of the airport. There are numerous examp les of such situations; therefore, airport operators and the wildlife damage management biologist must consider the entire surrounding landscape and community when developing the WHMP. AC 150/5200

- 33B, ¶ 2

- 8, pp. 11

- 12. This approach is bolstered by the findings contained in the FAA Evaluation that “trash

– transfer facilities within airport environments should be evaluated on an individual basis to determine . . . if the location of such a facility increases the risk to safe aircraft operations.” Evaluat ion Report, Ex.29, p.15. Because of its location next to mud flats, Flushing Bay, an existing garbage depot, and numerous buildings that provide opportunities for birds to perch, NSMTS would only add to the already existing risk of bird strikes. Adding another wildlife attractant such as NSMTS into the mix is reckless, unsafe and contrary to AC 150/5300

- 33B and 150/5200

- 34. Therefore, the Director’s failure to consider the totality of the circumstances surrounding the location of the NSMTS was not consi stent with applicable law, precedent and FAA policy, and therefore the Port Authority must be found to be in violation of Grant Assurances 19, 20, 21, and 34.

D . The Director Erred in His Determination in Finding that the Port Authority Did Not Fail to T ake “ A ppropriate A ction” to P rotect T erminal A irspace from the C reation of A irport H azards and Incompatible Land Uses in Violation of Grant Assurances 20 and 21 . The Director found that t he Port Authority did not violate Grant Assurance 20 and Grant
Assu rance 21 because the Port Authority does not have control over the property upon which NSMTS is located and it because it took “reasonable action” to “influence off

- airport property owners to eliminate or mitigate” the hazards created by NSMTS. Although t he Director and the Port Authority erroneously l ump the two Grant Assurances together, as explained below, the- 49

- standards that the FAA uses to ascertain whether the NSMTS is an “airport hazard” (Grant Assurance 20) and whether NSMTS is an incompatible land use (Grant Assurance 21) are slightly different. Once it is determined, however, that NSMTS is an airport hazard or an incompatible land use, the operative question is essentially the same for both Grant Assurances: did the Port Authority take “reasonable action” to eliminate or mitigate the airport hazard or incompatible land use?

1. NSMTS and Ferrara Brothe rs’ stacks are “airport hazards ” under Grant Assurance 20. As pointed out in the Amended Complaint, f ederal law requires that sponsors take “appropriate action” to ensure “that terminal airspace required to protect instrument and visual operations to the airport (including operations at established minimum flight altitudes) will be cleared and protected by mitigating existing, and preventing f uture, airport hazards .” 49 U.S.C. § 47107(a)(9) (emphasis added) . Grant Assurance 20, Hazard Removal and Mitigation, tracks this statutory provision by stating that an airport must “take appropriate action to assure that such terminal airspace as is requi red 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 hazard s and by preventing the establishment or creation of future airport hazards .” ( Emphasis added)
For the purposes of Grant Assurance 20, “airport hazards” can come in at least two forms that are relevant to this matter: (1) obstructions to air traffic; and (2) wildlife hazards. There is no question that the NSMTS constitutes both an obstruction to air traffic and a wildlife hazard.- 50

- Relevant FAA administrative decisions make clear that physical obstructions can constitute an “airport hazard” for the purpos e of Grant Assurance 20. In Town of Fairview, Texas v. City of McKinney, Texas , FAA Docket No. 16

- 99

- 04 , Director’s Determination, ( September 20, 1999 ), the FAA held that “[f] or the purpose of evaluating airport sponsor compliance with hazard remova l and mitigation requirements, t he 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, which obstructs the airspace required for the flight in landing or take off at such airport or is otherwise hazardous to such landing o r taking off of aircraft.’” Town of Fairview , p.*24; see also , FAA Order 5190.6B, App. Z, p.315. Likewise, FAA Order 5190.6B, FAA Airport Compliance Manual , (t he “ Handbook ”) contains a section that is entitled “A Guide to Sponsor Obligations. ” That Guide states that the sponsor’s obligation to “protect approaches” means that it must “ prevent, insofar as it is reasonably possible, the growth or establishment of obstructions in the aerial approaches to the airp ort. (The term ‘ obstruction ’ refers to natural or man

- made objects that penetrate the imaginary surfaces as defined in FAR Part 77, or other appropriate citation applicable to the specific a greement or conveyance document ) .” Handbook, p.2

- 15 ; see also, 5 190.6B, App.G, Exhibit A, p.122).
The Guide and the Handbook intentionally used the word “obstruction” and not “hazard,” since those words have different meanings in the FAA’s Part 77 lexicon. A structure may be an “obstr uction” even if the FAA has determined it not to be a “hazard” pursuant to Part 77. For this reason, the FAA states explicitly in the Handbook that a Part 77 No Hazard Determination is- 51

- not a safe harbor for sponsors, as the Port Authority seems to allege, when it comes to protecting the airport from “airport hazards.” Handbook, ¶ 7.13(c)(2) (“ determination of ‘no hazard,’ however, doe s not ensure a safe environment ” ). The Director and the Port Authority wrongly contend that Complainants seek to challenge the FAA’s No Hazard Determination. Complainants’ argument is based on the fact that the NSMTS is still an obstruction to air traffic and creates an unsafe environment that is in violation of the Grant Assurances because, despite the No Hazard Determinati ons, the Port Authority failed to “prevent[ ] the establishment or creation of [a] future airport hazard[ ].” Grant Assurance 20.
As noted above, the sponsor’s duty to prevent airport hazards, however, goes beyond preventing structures from being built t hat are “obstructions in the aerial approaches to the airport.” The sponsor also is required to prevent structures and land uses that will attract wildlife. The Handbook stat es that wildlife attractants “can also present potential hazards to aviation if they encourage wildlife to enter an airport’s approach or departure airspace or air operations area (AOA) . . . . Hazardous wildlife attractants on or near airports can jeopardize future airport expansion, which makes community land use planning essential. ” FAA Order 5190.6B, ¶ 7.13(e). The section then concludes by stating that “[l]and use practices that attract or sustain hazardous wildlife populations on or near airports can significantly increase the potential for wildlife strikes. As such, the airpo rt sponsor must take appropriate action to mitigate those hazards

. ” FAA Order 5190.6B, ¶ 7.13(e) (emphasis added).
The Director ignores the fact that t he Port Authority effectively conceded in its Answer and Motion and its Rebuttal that it has not compli ed with Grant Assurances 20 and 21. In- 52

- addition to the NSMTS, the Port Authority admits that there are seven other “airport hazards” that it has not taken “appropriate action” to eliminate or mitigate. See, Answer Statement of Facts, ¶¶ 19

– 20, p.7; see also, Tom Bock Declaration, p.3 ¶¶ 10

– 12; Answer, Ex.A. Tom Bock’s Declaration concedes that all seven of the structures penetrate the 34:1 surface. Therefore, they must be considered to be “obstructions” and therefore “airport hazards.” Moreover, fo ur of the six current airport hazards (LOCALIZER, NAVAID, and two FENCES) identified by the Port Authority are located on airport property and thus within the direct control of the Port Authority. Yurtis Declaration, ¶ 8. Despite agreeing that these four airport hazards could be lowered or removed so that they would not penetrate the 34:1 surface (Yurtis Declaration, ¶ 9), the Port Authority nowhere states that it has taken any action to eliminate or mitigate these airport hazards that are within its cont rol and authority.
Two of the remaining three airport hazards mentioned in Exhibit A to Tom Bock’s Declaration are the Ferrara Brothers stacks. Yurtis Declaration, ¶ 9. Although these structures are not on airport property and not under the jurisdictio n of the Port Authority, the Port Authority is still required by the Grant Assurances to eliminate or mitigate them as airport hazards. Yet Tom Bock’s Declaration and the Answer concede that the Port Authority has done nothing to either eliminate or mitig ate the Ferrara Brothers’ stacks. Bock Declaration, ¶ 8. In fact, Complainants have done more towards “eliminating or mitigating” airport hazards than the Port Authority by securing the Ferrara Brothers’ agreement that they would lower their stacks, even if the Company’s statements are “general and indefinite.” The Director assumes that the lowering of the Ferrara Brothers stacks will be too costly, yet there is no reliable, substantial or probative- 53

- evidence to support that statement because the Port Aut hority has not made any effort whatsoever to find out what it would take to eliminate or mitigate the airport hazard that is created by the Ferrara Brothers stacks.
The remaining hazard is the 69

- foot “BLDG” mentioned on Exhibit A. According to the
Port Authority, that is the old transfer station, which has since been demolished. Yurtis Declaration, ¶ 8. Notably, the Port Authority does not contest, and therefore concedes, that the new NSMTS will be an obstruction. The Amended Complaint pointed out in the Statement of Facts that NSMTS will penetrate several surfaces. Amended Complaint, pp.37

– 38. The only conclusion can be that NSMTS is an obstruction. Therefore, it must also be an airport hazard that the sponsor is required to take appropriate acti on to eliminate or mitigate.
NSMTS has two additional characteristics, however, that are not shared by the other airport hazards mentioned by the Port Authority which underscore its status as an airport hazard. In the Amended Complaint, Complainants stat e that as of late March , 2009 the Port Authority has considered NSMTS to be in the Runway Protection Zone (RPZ) for Runway 31. See , Amended Complaint, p.35; see also , Amended Complaint Ex. 54. The March 2009 date is after the last No Hazard Determination was issued and after the Port Authority withdrew its Petition for Review. Since the RPZ is meant to be kept clear of hazards to safe air navigation, the placement of the NSMTS in the RPZ is an airport hazard under Grant Assurance 20. In its Answer, the Port Authority does not dispute, and therefore concedes, that the NSMTS is in the
RPZ. 16 Thus, in addition to being an “airport hazard” because the NSMTS is an obstruction, it is

16 The Answer and Motion includes a quote from Tom Bock ’s letter to the FAA- 54

- an “airport hazard” because it is in the RPZ. Moreover, even if the NSMTS is located outside the RPZ, it is just outside the RPZ. As stated above, the Director has failed to take into the fact that aviation safety risks do not magically disappear when a transfer station moves over the RPZ line.
Finally, NSMTS is an airport hazar d within the meaning of Grant Assurance 20 because it will attract wildlife that will be a hazard to safe airport operations, despite the findings of the Panel Report. See supra , pp.6

– 14. Neither the Director nor the Port Authority dispute that the
Pa nel Report found that the NSMTS, as designed and permitted, represents a serious risk to safe airport operations. In addition, the Answer and Motion relies on the fact that the facility is enclosed to diminish the attractiveness of the facility to birds. However, the Director, the Panel Report and the Port Authority ignore the fact that recent FAA guidance concluded that building design ( i.e., whether a facility is enclosed) is not a factor in determining the facility’s attractiveness to birds. Amended C omplaint Ex.29; see also supra , pp.6

– 14.

2. The NSMTS is an incompatible land use within the meaning of Grant Assurance 21 . As mentioned in the Amended Complaint, f ederal law requires that an airport sponsor take “appropriate action, including the adoption of zoning laws . . . to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations .” 49 U.S.C. § 47107(a)(10). Grant Assurance 21, Compatib le Land Use, expands on withdrawing its Petition for Review of the first No Hazard Determination . Th at letter does mention the Port Authority’s belief at that time that the NSMTS is outside the RPZ. However, the letter pre

- dates Amended Complaint Ex.54 , which shows the Port Authority’s plan to implement a 2,500 foot RPZ. Moreover, the Port Authority does not dispute that the NSMTS’ location is currently within the planned RPZ.- 55

- the statutory requirement and requires the airport sponsor to “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 purpo ses compatible with normal airport operations, including landing and takeoff of aircraft.” The Handbook elaborates on the airport sponsor’s duties with respect to the statute Grant Assurance 21 , explaining that it “relates to the obligation of the airport sponsor to take appropriate actions to zone and control existing and planned land uses to make them compatible with aircraft operations at the airport.” The FAA laid out the standard for determining whether a sponsor is out of compliance with Grant Ass urance 21 in the matter of Keathly v. City of McKinney, Texas and the Collin County Regional Airport , Docket No. 16

- 03

- 14, Director’s Determination (October 13, 2004). In that case, the Director determined that: 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 [ i.e., the off

- site land use] operations compatible with local airport operations?
2. If not, could the sponsor have prevented th e facility from operating near the airport? Id. at *58. In this case, the Amended Complaint shows 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 wildl ife attractant . The Port Authority does not dispute these facts. In addition to being an obstruction as described in the Amended Complaint ( see pp.37

– 38), 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- 56

- approach in particular. Tom Bock’s Declaration does not dispute that the Port Authority’s goal to “enable a CAT II approach on Runway 31” (Bock Declaration ¶ 15

- 16), nor d oes he deny that the NSMTS interferes with the Port Authority’s ability to achieve that goal. The FAA requires that the RPZ be kept clear of incompatible land uses. See , Advisory Circular 150/5300

- 13, Airport Design . The FAA has stated that solid waste transfer stations, even “fully enclosed” transfer stations, should not be constructed in a Runway Protection Zone. Advisory Circular 150/5300

- 33B. Since the NSMTS is being built in the RPZ for Runway 31, it is not compatible with local airport operations and the Port Authority is bound by its Grant Assurances to take appropriate action to protect the RPZ. Finally, the NSMTS is precisely the kind of wildlife attractant that Grant Assurance 21 is meant to prevent from being built

. Neither the Director nor t he Port Authority deny that the NSMTS is wildlife attractant. Rather, they merely claim that the risk can be mitigated if the recommendations of the Panel Report are followed. However, the Grant Assurances require airport sponsors to seek to prevent ne w incompatible land uses, and not rely on mitigation. The Director’s argument to the contrary is not consistent with applicable law, precedent and FAA policy. 3 . Despite its claims to the contrary, 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 Assurance 20 and 21 . Contrary to the Port Authority’s argument in its Answer ( see, Memo, pp.9

– 11, 16

- 19) , a sponsor’s lack of jurisdictional control over the incompatible land use does not excuse the sponsor from “declin[ing] to take any action at all to achieve land use compatibility outside the- 57

- airport boundar ies.” FAA Order 5190.6B, ¶ 20.1. In all cases, the FAA exp ects sponsors to “take appropriate actions to the extent reasonably possible to minimize incompatible land.” Id. If the airport sponsor does not have zoning authority, it must attempt to prevent a new airport hazard or incompatible land use

. See, FAA Or der 5190.6B, ¶ 20.2(d). As the FAA pointed out
in M. Daniel Carey and Cliff Davenport v. Afton

- Lincoln County Municipal Airport Joint Powers Board , Docket No. 16

- 06

- 06, Director’s Determination (January 19, 2007), “ for the purpose of evaluating airport ow ner or sponsor compliance with compatible land use, the FAA does not per se accept an owner or sponsor declining any action on the simple grounds that it does not possess zoning authority outside the airport boundaries.” Id. at *28. The FAA goes on
to recommend various actions that sponsors can take in order to fulfill their obligations under
Grant Assurance 21: Depending upon the owner or sponsor's capabilities and authority, "appropriate action" could include actions such as exercising zoning authorit y as granted under state law or active representation and defense of the airport's interests before the pertinent zoning authorities. Appropriate action may also include taking steps with respect to implementing sound insulation, land acquisition, purchase of easements, and real estate disclosure programs or initiatives to establish that areas are compatible with airport operations. Id. at *29

- *30. This would include enforcing lease provisions that prohibit the landlord from erecting “any obstructions or hazards to air navigation.” Lease, § 21.1. The Director’s offhand dismissal of this provision is not supported by a preponderance of reliable, pro bative and substantial evidence nor is it consistent with applicable law, precedent and FAA policy. In addition, when the airport hazard is a new one, such as the NSMTS, the airport sponsor’s- 58

- obligation is to prevent the creation of the hazard. 17 Grant Assurance 20. Mitigation is not an option. Id.
The Port Authority admits that NSMTS is an “airport hazard,” but asserts that it has taken all appropriate and reasonable action. The Port Authority also admits that, apart from filing a Petition f or Review that was subsequently withdrawn after the City of New York told the Port Authority to withdraw it, it has done nothing to prevent the construction of yet another obstruction in the approach to Runway 31. 18 In the seven years since DSNY first file d its Form
7460

- 1, the Port Authority can list only three actions it has taken: 19 “[1] [t]he Port Authority objected to construction of the NSMTS as originally proposed ... [2] the Port Authority then filed a Petition for review of the Determination Of No Ha zard ...[and 3] the Port Authority again submitted comments.” Answer, p.20. Moreover, the Port Authority’s objection to construction of the NSMTS was rendered meaningless by the Port Authority’s withdrawal of the Petition for Review for no good reason, app arently as part of strong

- arm tactics used by the City of New York to quell legitimate opposition to the NSMTS. Since then the Port Authority has not challenged any of the City’s actions with respect to the construction of NSMTS. Its claim that it has ta ken “appropriate” and “reasonable” action rests on the fact that the Port Authority has no

17 The Director’s argument against this proposition is not supported by a preponderance of reliable, probative and substantial evidence. 18 Grant Assurance 20 states that the ai rport sponsor must take appropriate and reasonable action to prevent new airport hazards from being created. Grant Assurance 20. Mitigation, such as that suggested by the Panel Report, is only allowed with respect to existing hazards. Id. 19 Only one of those actions

– filing a Petition for Review for the first No Hazard Determination

– is documented by the Port Authority. The Port Authority has not offered any documentary evidence to support its claim that it objected to the first No Hazard Determinati on or that it offered comments on the second set of No Hazard Determinations.- 59

- control over the NSMTS since it is off of airport property and the Port Authority’s eminent domain power does not extend to property owned by a municipality. Memo, pp.17

- 19. This ignores the fact, however, that the Port Authority did nothing to even attempt to prevent the creation of a new obstruction and a significant wildlife attractant. In fact, there are at least four ways the Port Authority could have addresse d the issues with NSMTS in a more reasonable and appropriate fashion.

a. 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 obstr uction or hazards to air navigation. The most powerful weapon that the Port Authority has in its arsenal is its lease with the City of New York. 20 See Amended Complaint, Ex.55. As pointed out in the Amended Complaint, 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 penetrate the surfaces : During the term for which the Demised Premises are leased, the City shal l 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 H orizontal Surfaces, Conical Surfaces, Primary Surfaces, Approach Surfaces or Transitional Surfaces or (y) within the boundaries of the Runway Protection Zones, as such may exist from time to time. Amended Complaint, Ex.55, Lease, § 21.1. Notably, this provision prohibits the City from

20 Although raised as an argument in the Amended Complaint ( see pp.5,10 and 30) , the Port Authority did not address the lease provision at all in its Answer and Motion, effective ly conceding Complainants’ argument that the Port Authority had the power and authority under the lease to prevent the construction of the NSMTS at the College Point site.- 60

- constructing or permitting the construction on City property of any structure that “projects” into any of the enumerated surfaces shall not be erected.

Included as an Exhibit to the Lease are conical drawi ngs that show the RPZ as encompassing the location of the NSMTS and that the NSMTS penetrates the surfaces depicted on the drawing. Reply Ex.2. Moreover, this same drawing specifically references Lease § 21.1. Id . There can be no question, then, that t he NSMTS’ College Point location was meant to be included in the areas covered by the prohibitions contained in § 21.1 of the Lease.
Thus, the Port Authority had the authority provided in its lease to stop the construction of NSMTS, and it failed to use it. NSMTS clearly is an “obstruction or hazard to air navigation,” and by the Port Authority’s own admission, projects at least into the 34:1 surface. Therefore, the City of New York is required by this lease provision to not build the NSMTS at its curre nt location. Since the Port Authority failed to seek enforcement of this lease provision, it failed to take appropriate action against an airport hazard and an incompatible land use.

b . The Port Authority failed to require an avigation easement such tha t NSMTS would not penetrate the 34:1 surface. In its Answer and Motion, the Port Authority argues that because NSMTS is owned by the City of New York, it cannot exercise the eminent domain authority that the State of New York granted it. Although the FA A prefers that airports have fee title over property in the RPZ ( see, AC 150/5300

- 13), when t hat is not possible the FAA suggests that airport operators obtain avigation easements, not only for the RPZ but for all areas in the approach and departure surfac es. This is particularly true for airport operators who do not have zoning authority, such as- 61

- the Port Authority. Based on the statements in its Answer, the Port Authority did not seek an avigation easement from the City of New York for the airspace abov e NSMTS, such that it would not penetrate the 34:1 surface or any other surface in the departure or approach areas for Runway 31. 21

c. The Port Authority should not have withdrawn its Petition for Review. The Port Authority claim s in its Answer that it withdrew its Petition for Review because it had reviewed the plans and determined that the height woul d not be an issue. However, the height of the NSMTS was just one of a myriad of arguments that the Port Authority presented in its Petition for Revie w. These issues were not addressed by the Port Authority, the City of New York or the FAA after the Port Authority withdrew its Petition for Review. See Petition for Review, ¶¶ 30

– 50. Some of the issues raised in the Petition for Review that went unad dressed as the result of the Port Authority’s withdrawal of the Petition for Review:

● No Hazard Determination failed to address the “significant impact that the Proposed Structure would have on the safe and efficient utilization of the navigable airspace of LGA .” Petition, ¶ 30.

● “Determin ation failed to address the effect of the Proposed Structure on the overburdened airspace of LGA.” Petition, ¶ 32.

● “The landing and departing threshold of Runway 13 would be reduced if the Proposed Structure were ere cted.” Petition, ¶ 33.

21 The Port Authority also failed to take matters into its own hands when the origin al marine transfer closed. It did not seek to purchase the property from the City at that time in order to protect airport operations.- 62

- ● “The presence of the Proposed Structure would require aircraft using Runway 13 to use a steeper climb gradient than currently required; more specifically, the climb gradient would increase from 390 feet per nautical mile to 405 fe et per nautical mile.” Petition, ¶ 36.

● “The Proposed Structure would cause some aircraft to avoid use of Runway 31 and/or make multiple approaches [when trying to fly the VASI system on a right base leg to Runway 31].” Petition, ¶ 38.

● “The Takeoff Di stance Available for departures for Runway 13 would be reduced even further in wet and icy weather.” Petition, ¶ 39.

● “An increase in the climb gradient for departing aircraft on Runway 13, from 390 feet per nautical mile to 405 feet per nautical mile, w ould have the effect of diverting some traffic from Runway 13 to Runway 4/22, thereby overburdening Runway 4/22 and causing congestion and delay at LGA and the NAS.” Petition, ¶ 46. Any one of these issues is significant enough for the Port Authority to h ave continued to support its Petition for Review. None of these issues have been resolved and the Director did not address them in his determination

. Moreover, by withdrawing its Petition for Review and not challenging the subsequent No Hazard Determin ations, the Port Authority abandoned valid objections. Those objections, as expressed in Tom Bock’s May 9, 2005, letter (Amended Complaint Ex. 8) were in large part supported by FAA technical staff. See, e.g., Amended Complaint Exs.14, 15, 21, and 39). The objections also provided the FAA with suffic ient grounds to issue a hazard d etermination for the- 63

- NSMTS based on the protection of the navigable airspace above NSMTS required to meet LaGuardia Airport’s present and future demands. Yurtis Declaration ¶ ¶ 19 and 20. There is little doubt that the Port Authority had filed with FAA, and that FAA had at least given its preliminary approval , to the implementation of a precision approach for R unway 31 with visibility minimums below 3⁄4 of a mile , which requires a 2,500 foot RPZ

. The planned low visibility precision approach appears first as part of a 2003 Congressional appropriation for the purchase and installation of an instrument la nding system for Runway 31. Then the Port Authority survey ed and published a conical drawing in 2004 , which includes a 2,500 f oo t RPZ

. Finally, in 2009, the Port Authority’s Master Planning department also showed 2,500 feet RPZ , as did the FAA 2006 N o H azard D etermination, and the correspondence and emails authored by Bock and Derm ody . Thus, FAA would clearly have conducted a detailed review of the Port Authority “current planned airport projects, national airport plan data, and land

- use planning studies in the vicinity of the structure, [ i.e. the NSMTS] , ” had the Port Authority maintained its
2006 Petition for Review or filed a petition objecting to the 2008 no hazard determination. In withdrawing its objections and standing mute against the proposed NSMTS, therefore, the Port Authority plainly violated its Grant Assurances obl igations to protect the navigable airspace required for the plan to implement a precision approach to runway 31 that will allow landings on that runway when visibility falls below 3/4th miles. See , R. Alexander, 2/22/2007.
d. The Po rt Authority failed to o bject to the Panel Report. Finally, the Port Authority s hould have objected to the Panel Report . Independent of the validity of the Panel Report, the Port Authority should have objected because, among other things, it does not take into account the syne rgistic effect that construction of the NSMTS would- 64

- have on the already significant bird strike issue at LaGuardia. For example, if birds are attracted to the NSMTS and DSNY uses harassment methods to keep the birds away from the NSMTS,
those birds could very well end up crossing the approach and departure paths into LaGuardia.
Moreover, the fact that a Port Authority biologist was on the team is not necessarily indicative of her support for the conclusions of the Panel Report. This fact was not menti oned by the Director in his determination, further undermining his decision. M embers of the Panel have reported in confidence that they were told by the USDA and FAA that the decision to build the NSMTS was “a done deal” and that they should “make it work ” as best they could. This was contrary to their position that the construction of the NSMTS should be opposed.
The Panel Report is simply a “make

- work” document for the USDA. It is no coincidence that the recommendations contained in the Panel Report all require actions that USDA is in the market selling. 22 This is the only way to explain the apparently illogical contention in the Panel Report (Answer Statement of Facts ¶ 35) that construction of the NSMTS will lower the bird strike risk below backgro und levels. Logically, how could the creation of hazard and the subsequent mitigation of that hazard (however effective) lower the risk that was created by the hazard below background levels? In short, the Port Authority had many reasons to oppose the
Pa nel Report, even leaving aside the issues as to the validity of the document. 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.

22 Indeed, the USDA did monetarily benefit from its participation on the Panel Report, since it received a no

- bid contra ct from the City of New York to provide a wildlife biologist at the NSMTS. This is contrary to the FAA Program Guidance Letters concerning the use of USDA wildlife biologists instead of private contractors.- 65

- Finally, the Panel Report cannot rely on the fact that the Panel Report suggests that with mitigation, the risk to safe air operations is diminished to protect itself from allegations of violations of the Grant Assurances. Grant Assurance 20 states that with respect to new airport hazards, such as the NSMTS, an airport sponsor will “ prev ent[ ] the establishment or creation of future airport hazards .” Grant Assurance 20. Mitigation is only an option for existing airport hazards.
Thus, The Port Authority’s claim that it too k all appropriate and reasonable measures to protect the Airport from airport hazards and incompatible land uses does not withstand scrutiny. The Port Authority has shown a remarkable lack of creativity and an unwillingness to stand up to the City of New York to protect the safety of air operations at LaGuardia Airport.

V . CONCLUSION WHEREFORE, based on the facts and reasoning stated above, the Complainant respectfully requests that the Associate Administrator reverse the findings in the Director’s Determination and hold that the Respondent is in violation of its federal grant assurances, including, but not limited to 19, 20, 21 and 34 under the Airport and Airway Improvement Act of- 66

- 1982, as amended, 49 U.S.C. § 47101, et seq., and take such action, including but not limited to return of grant funds and withholding of additional grant funds, and any additional penalty and relief the FAA determines to be just and appropriate.
Dated: February 4, 2013 TABER LAW GROUP

Steven M. Taber P.O. Box 60036 Irvine, California 92602

- 0036 (949) 735

- 8217 (phone) (714) 707

- 4282 (fax) staber@taberlaw.com Counsel for Complainants Kenneth Paskar and Friends of LaGuardia Airport, Inc.- 67

- CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing COMPLAINANTS ’ APPEAL FROM THE DIRECTOR = S DETERMINATION DATED SEPTEMBER 27, 2012 on the following persons at the following addresses and facsimile numbers (if also served by facsimile) by U.S. Mail: Mr. Darrell B. Buchbinder, General Counsel, Port Authority of New York and New Jersey 225 Park Avenue South New York, New York 10003

Dated this 4 th day of February , 201 3 ,

_______________________________ For: Complainants Kenneth Paskar and Fr iends of LaGuardia Airport, Inc.