UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

AIR TRANSPORT ASSOCIATION OF 

AMERICA, INC. d/b/a AIRLINES FOR 

AMERICA, ALASKA AIRLINES, INC., 

AMERICAN AIRLINES, INC., ATLAS AIR, 

INC., FEDERAL EXPRESS CORPORATION, 

HAW AllAN AIRLINES, INC., JETBLUE 

AIRWAYS INC., SOUTHWEST AIRLINES CO., 

UNITED AIRLINES, INC., UNITED PARCEL 

SERVICE CO., and AIR CANADA, 

Complainants, 

v. 

PORT OF PORTLAND, OREGON, 

Respondent. 

RECEIVED 

FEB t () 2016 

PART 16 DOCKETS 

FAA Docket No. 16-16- CJJ 

COMPLAINT PURSUANT TO 14 C.F.R PART 16 

AGAINST PORT OF PORTLAND, OREGON 

Communications with respect to this document should be addressed to: 

David Berg 

Vice President & General Counsel 

Doug Mullen 

Assistant General Counsel 

Air Transport Association of America, Inc. 

d/b/a Airlines for America 

1275 Pennsylvania Avenue, N.W. 

Suite 1300 

Washington, D.C. 20004 

(202) 626-4234 

Email: dberg@airlines.org 

dmullen@airlines.org 

Counsel for Complainants 

Dated: February 10, 2016 

Roy Goldberg 

Steptoe & Johnson LLP 

1330 Connecticut Avenue, N.W. 

Washington, D.C 20036 

(202) 429-8028 

Email:rgoldberg@steptoe.com 
TABLE OF CONTENTS 

Page 

I. INTRODUCTION AND OVERVIEW ............................................................................... 1 

II. PARTIES AND STANDING ............................................................................................. .4 

III. CERTIFICATION PURSUANT TO 14 C.P.R.§ 16.21 ..................................................... 6 

IV. JURISDICTION .................................................................................................................. 6 

V. STATEMENT OF FACTS .................................................................................................. 7 

VI. FEDERAL PROHIBITION AGAINST DIVERSION OF AIRPORT REVENUE .......... 14 

VII. CLAIMS FOR RELIEF ..................................................................................................... 19 

A. THE PORT IS IMPROPERLY DIVERTING AIRPORT REVENUE BY 

COLLECTING AND REMITTING THE OFF SITE STORMW ATER 

MANAGEMENT AND SUPERFUND REMEDIATION FEES TO THE CITY. .......... .19 

B. THE ANTI-HEAD TAX ACT LIMITS AIRPORT FEES TO THE 

GOVERNMENTAL AGENCY WHICH OWNS OR OPERATES THE AIRPORT ...... 24 

VIII. COMPLAINANTS' UNSUCCESSFUL ATTEMPTS TO RESOLVE THIS 

DISPUTE ........................................................................................................................... 25 

IX. THE FAA JULY 2015 [NON-FINAL] LETTER FAILS TO ADDRESS 

COMPLAINANTS' ARGUMENTS AND IS NOT BASED ON THE FACTS, THE 

LAW OR SOUND REASONING ..................................................................................... 37 

X. PRAYER FOR RELIEF ................................................................................................... .40 

1 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

AIR TRANSPORT ASSOCIATION OF AMERICA, 

INC. d/b/a AIRLINES FOR AMERICA, ALASKA 

AIRLINES, INC., AMERICAN AIRLINES, INC., 

FED EX EXPRESS AIRLINES, HAW AllAN 

f.-IRLINES, INC., JETBLUE AIRWAYS INC., 

SOUTHWEST AIRLINES CO., UNITED 

AIRLINES, INC., UNITED PARCEL SERVICE 

CO., and AIR CANADA, 

Complainants, 

v. 

PORT OF PORTLAND. OREGON, 

Respondent. 

FAADocketNo.l6-l6-

COMPLAINT PURSUANT TO 14 C.F.R PART 16 

AGAINST PORT OF PORTLAND, OREGON 

I. INTRODUCTION AND OVERVIEW 

l. Complainants Air Transport Association of America, Inc., d/b/a "Airlines for 

America" ("A4A"), and Alaska Airlines, Inc., American Airlines, Inc., Atlas Air, Inc., Fedex 

Express Airlines, Hawaiian Airlines, Inc., JetBlue Airways, Inc., Southwest Airlines Co., United 

Airlines, Inc., United Parcel Service Co. and Air Canada (the "Airline Complainants") 

(collectively "Complainants") file this Complaint pursuant to 14 C.F.R. Part 16 to challenge the 

past, continuing m1d future violations of federal statutory law (49 U.S.C. § 47133 and § 

47107(b)(l)) and "grant assurance" obligations by the Respondent Port of Portland, Oregon (the 

"Port"), the owner and operator of Portland International Airport ("PDX" or "Airport"). The 

Port is improperly and unlawfully allowing millions of dollars of revenues generated at the 

Airport to be diverted from the Airport to satisfy financial obligations imposed by the 
government of the City of Portland, Oregon (the "City") (which neither owns nor operated 

PDX), having nothing to do with the Airport. The Airport is requiring airlines to pay money to 

the Port for the use of the Airport which the Port, in turn, diverts to the City for stormwater 

maintenance and environmental remediation projects entirely unrelated to Airport operations. 

This is diversion of airport-generated revenue, which violates federal statutory law. 

2. In this Complaint under Part 16 of the Federal Aviation Regulations made 

pursuant to 14 C.F.R. 16.1 et seq., Complainants request that the FAA institute an investigation 

tmder 14 C.F.R. 16.29 into the failure of the Port to comply with its federal grant assurances and 

other statutory obligations relating to diversion of revenue generated by or at the Airport. 1 

3. The investigation sought by Complainants is necessary because the Port, as the 

owner m1d operator of the Airport, diverts revenue generated by or at the Airport - namely 

airline rates and charges - into the coffers of the City of Portland through forced payment by the 

airlines serving PDX of millions of dollars in ammal fees for offsite stormwater management (the 

"Offsite Stormwater Management Fee") and Superfund cleanup (the "Superfund Remediation 

Fee") (collectively, the "Fees"). 

4. Once the Offsite Stormwater Management Fee is fully implemented in 2017, it 

will require the Airline Complainants to pay approximately $4 million per year to the Airport for 

remission to the City. The amounts dedicated to the Superfund Remediation Fee is lower per 

year as of now compared to the Offsite Stormwater Management Fee, but threatens to dwmfthe 

four million dollars-per year Offsite Stormwater Management Fee once the Willmnette River 

Superfund cleanup is fully underway. 

1 See Sponsor Assurances (requiring airport sponsors to comply with a system of sponsor 

assurances contained in grant-in-aid agreements issued under the Airport and Airway 

Development Act of 1970, as amended, 49 U.S.C. § 417101 et seq.); see also 14 C.F.R. Pmt 152, 

app. D (requiring grant applicants to certify that they will comply with prescribed assurances). 

2 
5. The revenues generated by the Fees are not expended for the capital or operating 

costs of the Airport. Rather, the Fees are one-hundred-percent allocated to projects having no 

relationship whatsoever to the Airport, therefore the Port's conduct violates the Airport and 

Airway Improvement Act (49 U.S.C. § 47107, et seq.) ("AAIA"); 49 U.S.C. § 47133; the AntiHead Tax Act (49 U.S.C. § 40116) ("AHTA"); the Grant Assurances; and the FAA Policy and 

Procedures Concerning the Use of Airport Revenue ("Revenue Use Policy") (Feb. 16, 1999). 

6. The effect of the Port's revenue diversion is to burden the Airline Complainants 

and airline passengers with the costs of the Fees. In passing the AHTA, Congress intended to 

prevent the undue burden on interstate commerce and the economic harm to airlines and 

passengers that would result if state and local govermnents were allowed to raise general 

revenues by imposing fees or taxes on commercial aviation2 As FAA has recognized, "[t]he 

purposes of the revenue use requirements are to prevent a 'hidden tax' on air transportation, and 

to ensure that Federal airport grants are used to supplement funding for airport projects and are 

not simply used to substitute funds diverted to support local non-airport programs."3 In violation 

of this statement, the Port is allowing airport-generated revenues to be used for non-airport 

purposes. 

7. The Complainants request that the FAA investigate the Port's diversion of 

Airport-generated revenues by its collection and remittance of the Offsite Stormwater 

2

See, e.g, Nw. Airlines, inc. v. Cty. of Kent, Michigan, 510 U.S. 355,363 (1994). 

3

F AA Policy and Procedures Concerning the Use of Airport Revenue: Proceeds from Taxes on 

Aviation Fuel, 78 Fed. Reg. 69789, 69790 (Nov. 21, 2013). 

3 
Management and Superfund Remediation Fees, and undertake a comprehensive audit of the 

Port's activities in this matter. 4 

IL PARTIES AND STANDING 

8. Complainant Air Transport Association of America, Inc. d/b/a "Airlines for 

America" ("A4A") is America's oldest and largest airline trade association. A4A is 

headquartered in Washington, D.C. 

9. A4A has representational standing and is able to file a part 16 complaint as a 

representative of its members who are "directly and substantially affected" by an act or omission 

of Respondent. 5 

I 0. Complainant Alaska Airlines, Inc. conducts aircraft operations at PDX and is a 

member of A4A. It is headquartered in Seattle, Washington. 

11. Complainant American Airlines, Inc. conducts aircraft operations at PDX and is a 

member of A4A. It is headquartered in Dallas, Texas. 

12. Complainant Atlas Air, Inc. conducts aircraft operations at PDX and is a member 

of A4A. It is headquartered in Purchase, New York. 

4

Because the FAA's Part 16 jurisdiction does not extend to a non-airport/operator/sponsor such 

as the City of Portland, which is imposing the Fees but does not own or operate PDX, A4A has 

filed a sepmate legal action in the United States District Court for the District of Oregon against 

the City and its concerned officials, seeking a declaratory judgment and injunctive relief against 

the City and its officials continuing to impose Fees that violate the prohibition against diversion 

of airport revenue. Air Transport Ass 'n of America, Inc. v. Jordan, et al., 3: 16-cv-00230-SB (D. 

Or.) (the "Portland Case"). 

5

See 61 Fed. Reg. 53,998 (Oct. 16, 1996); Santa Monica Airport Ass 'n, et al. v. City of Santa 

Monica, Docket No. 16-99-21,2000 WL 1824463, *13-14 (Nov. 22, 2000) ("the preamble to 14 

CFR Part 16, 61 Fed. Reg. 53998 ... contemplates that associations may file Part 16 complaints 

as a 'representative' on behalf of its members who are 'directly and substantially affected'") 

("SMAA may serve as a representative of its members ... in this proceeding"). 

4 
13. Complainant Fedex Express Airlines conducts aircraft operations at PDX and is a 

member of A4A. It is headquartered in Memphis, Tennessee. 

14. Complainant Hawaiian Airlines, Inc. conducts aircraft operations at PDX and is a 

member of A4A. It is headquartered in Honolulu, Hawaii. 

15. Complainant JetB!ue Airways, Inc. conducts aircraft operations at PDX and is a 

member of A4A. It is headquartered in New York City, New York. 

16. Complainant Southwest Airlines Co. conducts aircraft operations at PDX and is a 

member of A4A. It is headquartered in Dallas, Texas. 

17. Complainant United Airlines, Inc. conducts aircraft operations at PDX and is a 

member of A4A. It is headquartered in Chicago, Illinois. 

18. Complainant United Parcel Service Co. conducts aircraft operations at PDX and is 

a member of A4A. It is headquartered in Louisville, Kentucky. 

19. Complainant Air Canada conducts aircraft operations at PDX and is an associate 

airline member of A4A. It is headquartered in Toronto, Canada. 

20. Respondent Port of Portland owns and operates Portland International Airport and 

is the "sponsor" with regard to various "grant assurances" provided to FAA in exchange for 

funds the Port has received in the past for Airport projects. This includes, without limitation, 

Grant Assurance 25. 

21. The Airline Complainants have standing ur1der 14 C.F .R. § 16.23( a) because they 

are directly and substantially affected by the Port's violations of 49 U.S.C. § 47107 and§ 47133 

and Grant Assurance 25. "Persons alleging revenue diversion by an airport, as defined in 49 

U.S.C. § 47107(b), that do business with, and pay fees or rents to, the airport, are considered ... 

to be directly and substantially affected by the alleged revenue diversion for the sole purpose of 

5 
having ... standing to file a revenue diversion complaint under part 16. 61 Fed. Reg. 53,998 

(Oct. 16, 1996); Rudy.! Clarke v. City of Alamogordo, NM, Docket No. 16-05-19, 2006 WL 

2791038, *10 (Sept. 20, 2006) ("A person doing business with an airport and paying fees or 

rentals to the airport shall be considered directly and substantially affected by alleged revenue 

diversion"). "This special applicability provision operates for cases where revenue diversion is 

alleged. It is necessary because revenue diversion principally affects the United States as the 

grantor of the federal airport funds allegedly diverted. That said, entities that do business on the 

airport and pay also have some interest in alleging revenue diversion because their payments 

. . ,6 constitute mrport revenue. 

III. CERTIFICATION PURSUANT TO 14 C.F.R. § 16.21 

22. Pursuant to 14 C.P.R. § 16.2l(b), Complainants certify that they have made 

substantial and reasonable good faith efforts over multiple years to resolve the disputed matter 

informally with the Port prior to filing this Complaint and there is no reasonable prospect for 

timely resolution of the dispute7 A4A has met with officials from the Port, the City, FAA and 

DOT to try to resolve the issues raised herein, but these efforts have not resulted in the relief 

sought by Complainants. 

IV. JURISDICTION 

23. The Federal Aviation Act of 1958, 49 U.S.C. § 40101, et seq. (the "Aviation 

Act"), confers broad authority on the FAA to regulate air commerce. Under the AAIA, an 

airport receiving federal assistance in the fom1 of an Airport Improvement Progrmn grant, such 

6

Jd. at* 12 (citing61 Fed. Reg. 53,998 (October 16, 1996)). 

7

These good faith efforts are described in Section VIII below and in the Declaration of David 

Berg, Exhibit 20 hereto. The Declarations attached to this Complaint as Exhibits 16-20 were 

filed in the Portland Case in suppmi of the pending Motion for Preliminary Injunction. 

6 
as PDX, must comply with its sponsor assurances, including Grant Assurance 25. The FAA has 

a statutory mandate to ensure that airport owners comply with the sponsor assurances. 

24. Although the City (a non-airport owner, operator or sponsor) is imposing the OffSite Storm-Water and Superfund Remediation Charges on the Port, the Port is unlawfully 

requiring the Complainant Airlines to pay to the Port the amounts imposed hy the City as part of 

the rates and charges that the Port imposes on airlines for their utilization of PDX. If the airlines 

refuse to pay their portion of the Fees, they will be denied access to PDX or will be sued by the 

Port for non-payment of rates and charges. 

V. STATEMENT OF FACTS 

Portland International Airport 

25. PDX is located within the Portland city limits just south of the Columbia River in 

Multnomah County, Oregon. 

26. The Port is the "sponsor" for PDX within the meaning of 14 C.F.R. § 16.3. The 

Port has received millions of dollars in FAA Airport Improvement Program grants for the 

development ofPDX. 

27. PDX has its own stormwater treatment facility located within the airfield 

perimeter fence. The PDX system collects airfield stormwater (including deicing materials 

during the deicing season) as well as run-off stormwater from Marine Drive (on the Columbia 

River Levee bordering the Airport on the north side) which is owned by the City. 

28. PDX lies within the Multnomah County, Oregon Drainage District (the "Drainage 

District"). Landside drainage at PDX is all contained within the Drainage District's catchment 

area (roughly defined by the levee which encircles the airport, separating it from the Columbia 

River). PDX pays the Drainage District fees for this "on-site" service. No Airport storrnwater 

runs into City-controlled stormwater infrastructure. All water from PDX goes to the Columbia 

7 
Slough, controlled by the Drainage District or is discharged through the Port's own stormwater 

treatment system to the Columbia River. 

The Portland Fee Ordinance 

29. On September 12, 2012, the City adopted Ordinance 185610 (the "Ordinance"), 

which imposes a new methodology for charging for storm water management services.8 Under 

the methodology, the Port- as the owner and operator ofPDX- must pay a portion of the costs 

incurred by the City to manage "off-site" storm water drainage from non-airport rights of way 

(the "Offsite Stormwater Management Fee"), and for the clean-up of a Willarnette River 

Superfund site having no relationship to PDX (the "Superfund Remediation Fee"). 

The Offsite Stormwater Management Fee 

30. The Offsite Stormwater Management Fee is intended for the City to recover the 

costs to treat storm water on or adjacent to roadways not owned by a private party. PDX has its 

own stormwater treatment facility located within the airfield perimeter fence. The PDX system 

collects airfield storm water (including deicing materials during the deicing season) as well as 

run-off storm water from Marine Drive (on the Columbia River Levee bordering the Airport on 

the north side) which is owned by the City. 

31. Landside drainage at PDX 1s all contained within the Drainage District's 

catchment area (roughly defined by the levee which encircles the airport, separating it from the 

Columbia River). PDX pays the Drainage District fees for this "on-site" service. No Airport 

storm water runs into City-controlled storm water infrastructure. All water from PDX goes to 

the Columbia Slough, controlled by the Drainage District or is discharged through the Port's own 

storm water treatment system to the Columbia River. 

8

0rdinance, Exhibit I hereto. 

8 
32. In sum, no portion of the offsite storm water management service is used by the 

Airport. 

33. During a meeting at the Portland City Hall on September 16, 2014, 

representatives from the City's Bureau of Environmental Services ("BES") stated that the 

methodology for charging the Offsite Stormwater Management Fee was based on the study of a 

consultant Black & Veatch dated August 23, 2000,9 but they acknowledged that the formula 

reflected an effort to fairly and equitably recoup the costs of the citywide water drainage and 

cleanup. 

34. The BES officials at the September 16 meeting stated that storm water charges are 

divided into onsite and offsite fees, and nnder the formula that is used, 35% of the City's 

stormwater management costs are allocated to On-Site Fees, with the remaining 65% allocated to 

offsite charges. PDX (and therefore its airline tenants) pay the offsite charges only because PDX 

manages its own storm water directly or through the District. 

35. During the September 16, 2014 meeting, BES officials fully admitted that the 

Offsite Stormwater Management Fee is not for any services provided at PDX. They also 

acknowledged that they had no concept of what federal laws against airport revenue diversion 

require. However, they maintained that it is equitable and fair to require the Airport and its 

airlines to pay for the offsite stormwater maintenance because the airport "benefits" when roads 

throughout Portland are not "under water" from lack of stormwater management. 

36. During the September 16, 2014 meeting, connsel for A4A and Alaska Airlines 

specifically told the City officials in attendance at the meeting that imposition of the "Offsite 

9

Biack & Veatch Study, Exhibit 2 hereto; see also Exhibits 3, 4 and 5 hereto. 

9 
Storm water Management Fee" violated the prohibition against diversion of airport revenue in 49 

U.S.C. § 47133. 

The Superfund Remediation Fee 

37. The Superfund Remediation Fee relates to the City's involvement in the Portland 

Harbor Superfund Site. This involves the Willamette River, which has no connection to the 

Airport. (PDX is near the Columbia River.) 

38. The Portland Harbor Superfund Site is located along a 1 0-mile stretch of the 

Lower Willamette River ("LWR"). Water and sediments along Portland Harbor are contaminated 

as a result of more than a century of industrial use along the Willamette River. Industrial 

operations have contaminated water and sediments and impacted fish along Portland Harbor with 

hazardous substances, including heavy metals, polychlorinated biphenyls ("PCB"s), polynuclear 

aromatic hydrocarbons ("P AH"s ), dioxin and pesticides. "Site investigations and long-term 

cleanup planning are ongoing." 10 According to the U.S. Environmental Protection Agency 

("EPA"), "[t]he site's long-term remedy will not be selected until all appropriate studies have 

been completed." 11 

10EPA Superfund Program: Portland Harbor, Portland OR, 

http://cumulis.epa.gov/supercpadlcursites/csitinfo.cfm?id=1002155 (last accessed Feb. 9, 2016). 

11 Site Information for Portland Harbor, 

http:/ /cumulis.epa.gov/supercpad/ cursites/dsp ssppSiteData l.cfm ?id= 100215 5#Status (last 

accessed on Feb. 9, 2016); the Portland Harbor section of the Lower Willamette River in 

Portland, Oregon has served as a major industrial water corridor for more than a century. A long 

history of commercial shipping activities, industrial and commercial operations, wastes from 

private and public outfalls, and agricultural runoff have released substances into the Portland 

Harbor. Arkema Inc. v. Anderson Roofing Co., Case No. 3 :09-cv-00453 (D. Or.), Fourth 

Amended Complaint, Docket No. 442 (Jan. 15, 2015), 134. 

10 
39. On December 1, 2000, the EPA listed the Portland Harbor Superfund Site on the 

National Priorities List12 The Portland Harbor Superfund Site is located along the Willamette 

River in Portland, and encompasses the areal extent of hazardous substance contamination within 

the waters, bed and banks of the Willamette River from River Mile ("RM") 1.9 to RM 11.8, and 

all suitable areas in proximity to the contamination necessary for implementation of response 

action, including uplands portions of the Site that contact sources of contamination to the 

sediments at or within the Willamette River. 13 On September 28, 200 l, EPA issued an 

Administrative Order on Consent, EPA Docket No. CERCLA-10-2001-0240, requiring the 

preparation of a Remedial Investigation and Feasibility Study ("RI/FS") for the Portland Harbor 

Superfund Site and to reimburse certain costs with respect to the Site incurred by EPA and the 

Oregon Department of Enviromnental Quality ("DEQ"). On April 27, 2006, EPA amended the 

Administrative order on Consent, including re-titling it "Administrative Settlement Agreement 

and Order on Consent for Remedial Investigation/Feasibility Study." 14 EPA is the lead agency 

for overseeing the in-water work on contaminated sediments. This is an unusually complicated 

Superfund site, one of fue most complex in the entire EPA Superfund program. 15 

40. The Port is a potentially responsible party ("PRP") in the Portland Harbor 

Superfund Site cost recovery efforts due to operations at current and former facilities, mainly 

marine terminals and associated properties adjacent to the Willamette River. However, as stated 

above, PDX lies within a watershed that is isolated fi·om the Superfund site, and PDX storm 

1265 Fed. Reg. 75179-01. 

13Arkema Inc. Fourth Amended Complaint, '1/35. 

14Id. '1/36. 

15See Cassandra Profita, A Guide to the Portland Harbor Superfund Site, OBP (updated Nov. 17, 

2015, 3:12PM), http://www.opb.org/news/blog/ecotrope/a-guide-to-the-portland-harborsuperfund-site (last accessed Feb. 9, 2016). 

11 
water discharges either to the Columbia Slough (which enters the Willarnette River downstream 

of the Superfund study area) or to the Columbia River. PDX activities do not impact the 

Superfund investigation and remediation effort for the cleanup of the Portland Harbor Superfund 

Site. 

41. The Willarnette River/Portland Harbor Superfund site is an unusually complicated 

Superfund site, one of the most complex in the entire EPA Superfund prograrn. 16 

42. In 2009, a lawsuit was filed in federal court in Portland regarding participation on 

the costs of the Superfund cleanup. Arkema Inc., et al. v. Anderson Roofing Co., et al., No. 3:09-

cv-453-PK (D. Or.). 

43. "The Lower Willamette Group (LWG) submitted a draft final Remediation 

Investigation (RI) report to the [EPA] on August 29, 2011. ... The plaintiffs understand that 

EPA now expects to issue a Record of Decision in 2016." 17 

44. BES officials in attendance at the September 16, 2014 meeting stated that the 

EPA investigation relates to a six mile stretch of the Willamette River. The investigation does 

not involve PDX, which is on the Columbia River. The EPA investigation has been proceeding 

for many years, but it is still only in the planning stages. Substantial remediation activities have 

not yet occurred. 

45. BES officials stated that BES believes that all Portland citizens and entities should 

pay a portion of the Superfund cleanup costs because they are not focused on allocating blame 

for the pollution -- which first occurred decades ago if not longer. The allocation used to impose 

16See Cassandra Profita, A Guide to the Portland Harbor Superfund Site, OBP (updated Nov. 17, 

2015, 3:12 PM), http://www.opb .org/newslblog/ecotrope/a-guide-to-the-portland-harborsuperfund-site (last accessed Feb. 9, 2016). 

17/d. at 2-3. Plaintiffs' Eleventh Status Report, Arkema Inc., et al. v. Anderson Roofing Co., et 

a/., No. 3:09-cv-453-PK, Doc. 457 (D. Or. November 11, 2015) (Exhibit 6 hereto), at 2-3. 

12 
the Superfund Fee is a "postage stamp" formula, meaning that the rate is uniform for users across 

the City. BES officials stated that the City's position is that everyone benefits from a river in 

which Portland residents and visitors can swim. 

The Four-Year Complete Phase-In of the Fee Ordinance 

46. The Ordinance directed BES to phase in stonnwater management charges over 

four years starting with 25% of the approved charge beginning July I, 2013. The rate has 

increased 25% every year on July 1 until with the final increase July 1, 2016, when drainage 

district customers (including the Port) will be paying 100% of the costs for offsite storm water 

management. 

4 7. Thus, the Airline Complainants will feel the full financial impact of the Offsite 

Stmmwater Management and Superfund Remediation Fees by July 1, 2017. Currently, the City 

is imposing the charges on PDX, which is passing them to the Airline Complainants in the rates 

and charges for use ofPDX, and over the objection of the Airline Complainants. 

48. The impact of the Offsite Storm water Management Fee on airlines operating at 

PDX was approximately $2,070,000 for FY 2015 and is expected to be $3,105,000 for FY 2016 

and $4,140,000 for FY 2017. By FY 2025, the annual impact of this Fee on the airlines is 

expected to exceed $6,500,000. The cumulative impact on air carriers will be significant. As 

demonstrated by the spreadsheet from PDX, the cost of the Offsite Stormwater Management Fee 

to airlines serving PDX through 2025 is expected to be $53,784,048. 18 This figure does not even 

reflect the costs borne by the air carriers for the Superfund Remediation Fee, which, as stated 

below, will not be fully in place until environmental remediation commences. 

18Exhibit B to the Mark Berg Declaration, Exhibit 16 hereto. 

13 
49. Because the Airport accounts for a large amount of the square footage of the City, 

it beaTs a proportionately high share of the costs. In addition, the Superfund clean-up is still in 

preliminary stages. As the soil remediation process fully commences, the costs will increase 

significantly. There will be multiple millions of dollars that the airlines at PDX will be forced to 

pay solely because the airport is within the City of Portland, and takes up so much physical space 

within the city. This is a fiscal liability that is likely to increase exponentially over the years. 

VI. FEDERAL PROHIBITION AGAINST DIVERSION OF AIRPORT REVENUE 

50. The federal role in civil aviation has been augmented by various legislative 

actions that authorize programs for providing Federal funds and other assistance to local 

communities for the development of airport facilities. In each such program, the airport sponsor 

. bl' . 19 assumes certam o Igations. 

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

development of public-use airports under the Airport Improvement Prot,rram ("AlP") established 

by the Airport and Airway Improvement Act, Pub!. L. 97-248 ("AAIA"). The AAIA set forth 

assmances to which an airport sponsor agrees as a condition of receiving Federal financial 

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

obligation between the airport sponsor and the Federal government. The assurances made by 

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

airport system. 

52. In the years following the 1982 enactment of the AAIA, there were several 

instances of new state taxes being imposed on the sale of aviation fuel at AlP-funded airports. In 

response, Congress amended the AAlA in 1987 to bring state and local taxes on aviation fuel 

19 Rudy.! Clarke v. City of Alamagordo, NM, Docket No. 16-05-19, 2006 WL 2791038 (Sept. 

20, 2006). 

14 
within the scope of the airport revenue use requirements of the AAIA. The amendment also 

provided that revenues from a state fuel tax could be used for state aviation programs, in addition 

to the uses permitted for revenue received by an airport sponsor. 

53. In 1996, Congress strengthened the prohibition against revenue diversion in the 

AAIA by enacting 49 U.S.C. § 47133, which divorced the revenue diversion prohibition from its 

previous connection with AIP grant assurances and applied it instead to any airport that "is the 

subject of Federal assistance," 49 U.S.C. § 47133(a). 

54. The federal statntory prohibitions against diversion of airport-generated revenue 

are clear and specific. Pursuant to 49 U.S.C. § 47133(a), titled "Restriction on use of revenues": 

Local taxes on aviation fuel ... or the revenues generated by an airport that is the 

subject of Federal assistance may not be expended for any purpose other than 

the capital or operating costs of- (1) the airport; (2) the local airport system; 

or (3) any other local facility that is owned or operated by the person or entity that 

owns or operates the airport that is directly and substantially related to the air 

transportation of passengers or property. (Emphasis added). 

55. In addition, 49 U.S.C. § 47107(b)(l) states that DOT "may approve a project 

grant application ... for an airport development project only if the Secretary receives written 

assurances ... that local taxes on aviation fuel ... and the revenues generated by a public airport 

will be expended for the capital or operating costs of- (A) the airport; (B) the local airport 

system; or (C) other local facilities owned or operated by the airport owner or operator and 

directly and substantially related to the air transportation of passengers or property." Section 

47107(b) applies to airport sponsors (as a condition of receiving federal airport grants). 

56. The federal statutory prohibition could not be clearer: airport revenue "may not be 

expended" for non-airport pnrposes. And this ban applies to state governments as well as local 

governmental entities. 

57. Grant Assnrance 25(a) states: 

15 
All revenues generated by the airport ... will be expended by it for the capital or 

operating costs of the airport; the local airport system; or other local facilities 

which are owned or operated by the owner or operator of the airport and which 

are directly and substantially related to the actual air transportation of passengers 

or property .... 

58. The principal motivation for the strengthening the prohibition against revenue 

diversion in 1996 was Congress' understanding that local governments often sought to ignore or 

evade existing laws. Congress was specifically concerned about the City of Los Angeles' 

longstanding and well-publicized plan to divert hundreds of millions of dollars generated by Los 

Angeles International Airport ("LAX") to pay city expenses20 

59. In 1996, Congress enacted section 47133 to fmiher attempt to protect airlines, air 

travelers and shippers from the "hidden taxation" that inevitably results from revenue diversion. 

In connection with that legislation, the House of Representatives Transportation and 

Infrastructure Committee stated: 

Th[ e] prohibition against revenue diversion is designed to prevent airports from 

using their monopoly power to gouge airlines and other airport users in order to 

build huge surpluses that could then be diverted to other local programs that have 

nothing to do with aviation. Given that most airport users do not vote in the area 

of the airport but are merely visiting or making connections, it was feared that 

local officials would be tempted to raise airport fees rather than local taxes [if] 

those fees could be used for non-airport projects. The revenues diversion 

prohibition ensures that any money raised at the airport will be spent on the 

airpmi. In light of the important safety, security, capacity and noise mitigation 

needs at most airports, it is vital that the money is spent in this way.

21 

20See, e.g., H.R. Rep. No. 104-714, at 37 (1996); 142 Cong. Reg. S12232 (Oct. 3, 1996) 

(statement of Sen. Ford); Reauthorization of the Airport Improvement Program: Hearings Before 

the Subcomm. on Aviation of the House Comm. on Transp. and Infrastructure, 104th Cong., 2d 

Sess. 116, 139, 154 (1996). 

21H.R. Rep. 1 04-714(I), 37-38, Federal Aviation Authorization Act (1996). 

16 
60. The House Committee further stated that the "[t]he revenue diversion prohibition 

ensures that all airport and AlP money is used for airport purposes. "22 The report added: 

However, it is not merely the integrity of AlP grants that causes the Committee's 

concern about revenue diversion. Ultimately, it is the passenger who must pay 

when airport revenue is diverted. When an airline's rates and charges are 

increased to make up for the revenue lost by the diversion, the higher cost is 

ultimately passed on to the passenger. Therefore, revenue diversion burdens 

interstate commerce even if the airport is no longer receiving grants.23 

The House Committee further stated: 

In previous reauthorization legislation, provisions have been included to enforce 

the revenue diversion prohibition. Nevertheless, there still appear to be some who 

are seeking avenues around the law. Partly, this may be due to the fact that, at 

worst, connnunity caught diverting revenue will have to give it back. To increase 

the stakes, and once again demonstrate the seriousness with which Congress 

views this issue, the reported bill would authorize the imposition of treble 

damages on a paTty found to be in violation of the revenue diversion prohibition24 

61. In 1999, FAA issued its "Revenue Use Policy" at the request of Congress. Policy 

and Procedures Concerning the Use of Airport Revenues, 64 Fed. Reg. 7696 (1999). The 

Revenue Use Policy defines revenue diversion as "the use of airport revenue for purposes other 

than the capital or operating costs of the airport, the local airport system, or other local facilities 

owned or operated by the airport owner or operator and directly and substantially related to air 

transportation of passengers or property .... " Hence, unlawful revenue diversion constitutes a 

violation of Grant Assurance 25. 

62. FAA's Revenue Use Policy also describes particular prohibited uses of airport 

revenue. These include: 

22Jd. at 38 (emphasis added). 

23ld. (emphasis added). 

24Id. 

17 
1. Direct or indirect payments that exceed the fair and reasonable value of those 

services and facilities provided to the airport. 

2. Direct or indirect payments that are based on a cost allocation formula that is not 

consistent with this policy statement or that is not calculated consistently for the 

airport and other comparable units or cost centers of government. 

3. Use of airport revenues for general economic development. 

4. Marketing and promotional activities unrelated to airports or airport systems. 

5. Payments in lieu of taxes, or other assessments, that exceed the value of services 

provided or are not based on a reasonable, transparent cost allocation formula 

calculated consistently for other comparable units or cost centers of government. 

6. Payments to compensate non-sponsoring goverll111ental bodies for lost tax 

revenues to the extent the payments exceed the stated tax rates applicable to the 

airport. 

7. Loans to or investment of airport funds in a state or local agency at less than the 

prevailing rate of interest. 

8. Land rental to, or use of land by, the sponsor for aeronautical purposes at less than 

fair rental market value, except to the extent permitted by Section VII.D of the 

policy. 

9. Use of land by the sponsor for aeronautical purposes rent-free or for nominal 

rental rates except to the extent permitted by Section VILE of this policy. 

l 0. Impact fees assessed by any goverll111ental body that exceed the value of services 

or facilities provided to the airport. 

11. Expenditure of airport funds for support of community activities and participation 

in community events, or for sponsor of community-purpose uses of airport 

property except to the extent permitted by the policy. 

12. Direct subsidy of carrier operations. 

63. FAA Order 5190.6B, Airport Compliance Manual (September 30, 2009), sets 

forth policies and procedures for the FAA Airport Compliance Program. The Order is not 

regulatory and is not controlling with regard to airport sponsor conduct; rather, it establishes the 

policies and procedures for FAA personnel to follow in carrying out the FAA's responsibilities 

for ensuring airport compliance. The Order provides basic guidance for FAA personnel in 

18 
interpreting and administering the various continuing commitments airport owners make to the 

United States as a condition for the grant of Federal funds or the conveyance of Federal property 

for airport purposes. The Order, inter alia, analyzes the various obligations set forth in the 

standard airport sponsor assurances, addressed the application of the assurances in the operation 

of public-use airports, and facilities interpretation of the assurances by FAA personnel 25 

VII. CLAIMS FOR RELIEF 

A. THE PORT IS IMPROPERLY DIVERTING AIRPORT REVENUE BY 

COLLECTING AND REMITTING THE OFFSITE STORMW ATER 

MANAGEMENT AND SUPERFUND REMEDIATION FEES TO THE CITY. 

64. The Port has violated and continues to violate 49 U.S.C. § 47107(b) and§ 47133, 

and Grant Assurance 25, by requiring the Airline Complainants to pay millions of dollars to the 

Port which the Port in turn remits to the City for Offsite Storm water Management and Superfund 

Remediation Fees, which are not used for Airport operations. 

65. The millions of dollars in revenues taken from the Airline Complainants and 

forwaTded by the Port to the City constitute airport revenue but are not being used for (I) the 

Airport, (2) the local Airport system, or (3) other local facilities owned or operated by PDX and 

directly and substantially related to the air transportation of passengers or property. Thus, the 

plain meaning of 49 U.S. C.§ 47133 and§ 47107(b)(l) prohibits use or airline rates and charges 

generated at PDX for stormwater management and toxic site cleanup umelated to the Airport 

property or operations. 

66. In addition, PDX receives no services from the City in exchange for the Offsite 

Stormwater Management and Superfund Remediation Fees. The City has contended that 

requiring PDX and the airlines to pay a portion of the costs for offsite drainage services is 

25Scott Meyer v. City of Cincinnati, Docket No. 16-12-14, 2014 WL 6907498, *10 (Sept. 12, 

2014). 

19 
necessary to establish equity between City ratepayers inside and outside the drainage districts. 

But the City's self-serving perception of what is "equitable" is irrelevant to federal law. The 

City's costs for offsite stormwater maintenance and the Willamette River/Portland Harbor 

Superfund site bear no relationship to the Airport. The City does not own or operate PDX and, 

in any event, the charges at issue are not "directly and substantially related to the air 

transportation of passengers or property." 49 U.S.C. § 47133, § 47107(b)(l). Furthermore, the 

City neither owns nor operates the Airport, and therefore cannot allocate administrative and 

overhead costs to PDX. 

67. The FAA Revenue Use Policy defines "Airport Revenue" to include "All fees, 

charges, rents or other payments received by or accruing to the sponsor" in the form of "Revenue 

from air carriers ... [f]or the right to conduct an activity on the airport or to use or occupy 

mrpo . rt rt ,26 prope y .... 

68. In addition, the Policy defines "Unlawful Revenue Diversion" as the "use of 

airport revenue for purposes other than the capital or operating costs of the airport, the local 

airport system, or other local facilities owned or operated by the airport owner or operator and 

directly and substantially related to the air transportation of passengers or property .... " 27 

69. The Revenue Use Policy also prohibits imposition of "Impact fees assessed by 

any govermnental body that exceed the value of services or facilities provided to the airport. "

28 

Impact fees "assessed by any governmental body that exceed the value of services or facilities 

2664 Fed. Reg. at 7716. 

27Jd.; see Los Angeles v. FAA, 239 F.3d 1033, 1034 (9th Cir. 2001) (the "Policy states that§ 804 

of the Reauthorization Act, 49 U.S.C. 47133, changed the restrictions on revenue use"). 

2864 Fed. Reg. at 7720. 

20 
provided to the airport are prohibited uses of airport revenue. "

29 An "airport may pay for 

environmental mitigation measures contained in an FAA record of decision approving funding 

for an airport development project or for constructing a ground access facility that would 

otherwise be eligible for the use of airport revenue."30 The imposition of Superfund 

Remediation Fee on the PDX airlines is an improper attempt to circumvent FAA's prohibition on 

impact fees because the Airport's storm water environmental impact is already managed and paid 

for. 

70. In the revenue diversion case involving Dade County Florida, FAA determined 

that payment of construction permitting fees for airside airport projects violated 49 U.S.C. § 

4 7107 and Grant Assurance 25 because the services added little or no value to the construction 

projects. See Diversion of Airport Revenue Dade County Aviation Department, Report No. R4-

FA-7-035 (June 25, 1997) (improper revenue diversion from using airport money to pay for nonairport-related roadway, fire and police impact fees); id. at 11 (permitting fees for public works 

projects that are inappropriate use of airport-generated revenues as the related services add little 

or no value to the project). Similarly here, the offsite storm water management and Superfund 

remediation charges add zero value to the Airport or its operations. 

71. Use of airport revenues for such non-airport purposes also sets a terrible 

precedent, paving the way for local governments that neither own nor operate an airport to 

require airlines, through airport rates and charges, to pay for local community projects unrelated 

to the airport (such as a sports arena, a new convention center or general municipal facilities and 

equipment maintenance). 

290rder 5190.6B ~ 15.13(k). 

30Jd. 

21 
72. The FAA Airport Compliance Manual (Order 5190.6B), at 15.6a, states that 

"Revenue generated by the tenant in the course of that tenant's business is the tenant's revenue 

and not airport revenue under the Revenue Use Policy." See Order 5190.6B, at 15.6a ("Airport 

revenue generally includes those revenues paid to or due to the airport sponsor for use of airport 

property by the aeronautical and nonaeronautical users of the airport. ... Revenue generated by 

the airport for the aeronautical and nonaeronautical use of the airport includes, but is not limited 

to, the fees, charges, rents, or other payments received by or accruing to the sponsor from air 

carriers, tenants, concessionaires, lessees, purchasers of airport properties, airport permit holders 

making use of the airport property and services, etc."). 

73. There can be no exemption from the prohibition against unlawful revenue 

diversion for municipal utility charges where, as here, the Fees are not related to actual services 

provided to the Airport. The document "Legal Research Digest 2, Theory and Law of Airport 

Revenue Diversion" from the "Airport Cooperative Research Program" (May 2008) ("ACRP 

Document") (Exhibit 7 hereto) states: 

The fiscal problems facing local governments more generally (including, for 

example, the needs of urban roads, water, sewage, parks, schools, hospitals, and 

other infrastructure, and fire and police protection) coupled with a declining tax 

base have forced many to search for new sources of revenue. Redirecting revenue 

from airports to fund non-airport municipal needs appears attractive to some local 

political leaders. Yet Congress has stepped in to promulgate laws to 

circumscribe the ability of federally funded airports to divert airport revenue 

"downtown." Conflicts over locally owned and operated airports and federal 

funding and regulation are by rto means unique to revenue-diversion issues, but 

they manifest themselves here as well. !d. at 3 (Emphasis added). 

74. The ACRP Document also states that "the purchase or operation of road 

maintenance equipment and services or police and fire services not directly in support of the 

airport are deemed impermissible." !d. at 25. 

22 
75. The fact that the community as a whole may benefit from offsite stormwater 

treatment and environmental remediation cannot justify inclusion of such expenses in costs 

;?.'

allocated to the Airport and its airline tenants, as illustrated by the approach taken by FAA and 

DOT to law enforcement costs. FAA and DOT undertake significant efforts to ensure that the 

general costs of law enforcement are not allocated to airports. An example is the "Audit Report 

- FAA Oversight is Inadequate To Ensure Proper Use of Los Angeles International Airport 

Revenue for Police Services and Maximization of Resources," AV-2014-035, Office of Inspector 

General, U.S. Department of Transportation (April 8, 2014) ("2014 LAX Audit Report")? 1 The 

Report states that the Inspector General "identified about $7.87 million in unsupported charges 

without adequate documentation for services provided by the Los Angeles Police Department 

(LAPD) .... "32 The LAX 2014 Audit Report adds: "Without adequate documentation or 

support, it is unclear if these charges were used for the capital or operating costs of" LAX33 

The Report further states: "In 2012, LAW A and FAA stated [that] a record-keeping system to 

track LAPD non-airport work time would be implemented to address allegations of unlawful 

revenue diversion .... However, because the City [of Los Angeles] has yet to fully implement 

such a record-keeping system, LAW A may be incorrectly spending additional revenue on LAPD 

. k .,]4 non-arrport wor : · 

76. The same concerns apply equally to the Portland Fees. It would make no sense 

for federal authorities to ensure, on the one hand, that an airport pays only for law enforcement 

31 Exhibit 11. 

32Id. at 2. 

23 
services it receives but then, on the other hand, allow an airport to be allocated a portion of and 

pay the costs of utility-type services it does not receive and have no actual relationship to the 

airport. 

77. Finally, the City's fees, collected and remitted by the Port, cannot be justified as a 

"tax" because Oregon state law prohibits the City from imposing a tax at the Airport. See O.R.S. 

§ 307.090(1); Avis Rent A Car Sys., Inc. v. Dep't of Revenue, 330 Or. 35, 995 P.2d 1163 (2002) 

("In general, state and local government property is exempt from property taxation"). The 

Airport does not pay a property tax to the City. 

B. THE ANTI-HEAD TAX ACT LIMITS AIRPORT FEES TO THE 

GOVERNMENTAL AGENCY WHICH OWNS OR OPERATES THE AIRPORT. 

78. The Anti-Head Tax Act ("AHTA") provides that a "State," and "a political 

subdivision of a State" "may not levy or collect a tax, fee, head charge, or other charge on - (1) 

an individual traveling in air commerce; (2) the transportation of an individual traveling in air 

commerce; (3) the sale or air transportation; or ( 4) the gross receipts from that air commerce or 

transportation." 49 U.S. C. § 40116(b). 

79. The AHTA provides a limited exception for "a State or political subdivision of a 

State" to "levy or collect- (I) taxes (except those enumerated in subsection (b) ... ), including 

property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or 

services; and (2) reasonable rental charges, landing fees, and other service charges from aircraft 

operators for using airport facilities of an airport owned or operated by that State or subdivision." 

49 U.S.C. § 40116(d). 

80. The Offsite Stmmwater Management and Superfund Remediation Fees do not 

qualify under any provision of the AHTA. The Fees are not property taxes, net income taxes, 

franchise taxes or sale or use taxes on the sale of goods or services. They also are not reasonable 

24 
rental charges, landing fees or other service charges "for using airport facilities of an airport 

owned or operated" by the City35 

VIII. COMPLAINANTS' UNSUCCESSFUL ATTEMPTS TO RESOLVE THIS DISPUTE 

81. After the proposed new Fees were announced, on or about September 4, 2012, 

A4A sent a letter to Portland Mayor Sam Adams which expressed "concern with the plan to 

apply the proposed new storrnwater management fee to PDX."36 The letter stated that "the new 

fee would violate federal law and policy, which restricts the use of airport revenues."37 The 

letter further stated that "PDX has its own stonnwater treatment facility; the City does not 

manage storrnwater from PDX. Consequently, the proposed 'off-site' charge is for services PDX 

does not receive and is not permitted revenue use under the Revenue Use Policy."38 The letter 

added: 

It is no different, for example, than if the City established a special fee for 

resurfacing City streets or to revitalize an historic neighborhood. In these 

examples, just as with off-site storrnwater management, PDX would not receive 

City services and the fees would constitute unlawful revenue diversion. For these 

reasons, we urge you to not apply the new fee to PDX.39 

82. In 2013, A4A informally requested that DOT take action to advise the City that 

the Offsite Stormwater Management and Superfund Remediation Fees should not be applied to 

35See City and Cty. of Denver v. Continental Air Lines, Inc., 712 F. Supp. 834, 840 (D. Colo. 

1989) ("This Court is convinced after examining the legislative history and purpose of the AntiHead Tax Act that in order to avoid the double taxation of air passengers in air commerce 

through local and federal use taxes, Congress prohibited the imposition of such local taxes, fees, 

and charges that would be passed on to the flying public except where those taxes, fees, and 

charges are to be used to operate and maintain the presently existing airport facilities"). 

36Letter from David Berg, Exhibit 8 hereto, at I. 

37/d. 

38/d. at 2. 

25 
the Airport because: (a) the Airport operates its own storm water management facility, and (b) 

PDX is not on the Willamette River and did not contribute to the pollution that is the focus of the 

Superfund cleanup. Thus, such payments by the Airport on account of these charges are not 

permitted by the Revenue Use Policy and constitute unlawful revenue diversion. 

83. On May 7, 2013, A4A met with FAA officials at FAA headquarters 111 

Washington, D.C. to seek FAA assistance with regard to the unlawful revenue diversion at PDX. 

84. On July l, 2013, A4A and Alaska Airlines met with DOT and FAA officials at 

DOT headquarters in Washington, D.C., and the Port attended that meeting. 

85. A4A followed up the May 7, 2013 and July l, 2013 meetings with a position 

paper to DOT dated January 14, 2014. A4A stated that "the inclusion of certain storm-water 

management and toxic site cleanup charges in the airline rates and charges constitutes a clear and 

unmistakable violation of the express language of [the] federal revenue diversion statutes as well 

as the Revenue Use Policy .... " 40 A4A also stated: 

What the City is doing ... sets a terrible precedent, paving the way for local 

governments that neither own nor operate an airport to require airlines, through 

airport rates and charges, to pay for local community projects tmrelated to the 

airport such as a sports arena, a new convention center or general municipal 

facilities and equipment maintenance. Airlines are already subject to heavy 

airport fees plus an array of federal, state and local taxes. The PDX charges 

should not be permitted to stand as a model for local goverrunents to obtain 

revenues from the airlines. (!d.) 

86. On June 24, 2014, A4A and airline representatives met with DOT and FAA 

officials at DOT headquarters in Washington, D.C. to discuss the airlines' position that the Fees 

violate the prohibition against diversion of airport revenue. 

40Memorandum to Susan L. Kurland and Kathryn B. Thomson ("Airline Position Paper"), 

Exhibit 9 hereto, at 1. 

26 
87. On or about July l, 2014, A4A sent DOT a letter as a follow-up to the June 24, 

2014 meeting41 The letter stated that, as highlighted during the meeting, the City improperly 

"imposes [the Fees J despite the undisputed fact that the City provides neither offsite storm water 

nor Superfund remediation services to PDX or its airline tenants."42 The letter further stated that, 

as reflected in the spreadsheet attached as Exhibit l to the letter, the impact of the offsite storm 

water fee on airlines operating at PDX is expected to be $2,070,000 for FY 2015, $3,105,000 for 

FY 2016 and $4,140,000 for FY [2017]." Id. The letter added that "[i]mposition of these 

financial obligations is like forcing the airlines to finance a runway that is not actually used."43 

88. The July 1 letter also told DOT that the City is not like a utility company that 

provides electricity to the Airport because the City is not providing a service to the Airport44 In 

addition, there can be no exemption from the prohibition against unlawful revenue diversion for 

municipal utility charges where, as here, the fees are not related to actual services provided to the 

airport."45 Exhibit 2 to the letter was titled "Legal Research Digest 2, Theory and Law of 

Airport Revenue Diversion" from the "Airport Cooperative Research Program" (May 2008) 

("ACRP Document"). The ACRP Document states: 

The fiscal problems facing local governments more generally (including, for 

example, the needs of urban roads, water, sewage, parks, schools, hospitals, and 

other infrastructure, and fire and police protection) coupled with a declining tax 

base have forced many to search for new sources of revenue. Redirecting revenue 

from airports to fund non-airport municipal needs appears attractive to some local 

political leaders. Yet Congress has stepped in to promulgate laws to 

41 Exhibit 10 hereto. See also Declaration of David Berg, Exhibit 20. 

42Exhibit 1 0, at 1. 

43 Id. 

44 !d. at 2. 

27 
circumscribe the ability of federally funded airports to divert ailport revenue 

"downtown." Conflicts over locally owned and operated airports and federal 

funding and regulation are by no means unique to revenue-diversion issues, but 

they manifest themselves here as well 46 

89. The ACRP Document also states that "the purchase or operation of road 

maintenance equipment and services or police and fire services not directly in support of the 

airport are deemed impermissible."47 

90. The July I, 2014 letter from A4A to DOT also pointed out that the fact that the 

community as a whole may benefit from offsite stormwater treatment and environmental 

remediation cannot justify inclusion of such expenses in costs allocated to the Airport and its 

airline tenants, as illustrated by the approach talcen by FAA and DOT to law enforcement costs. 

FAA and DOT undertake significant efforts to ensure that the general costs of law enforcement 

are not allocated to airports. An example is the "Audit Report-FAA Oversight is Inadequate To 

Ensure Proper Use of Los Angeles International Airport Revenue for Police Services and 

Maximization of Resources," AV -2014-035, Office of Inspector General, U.S. Department of 

Trm1sportation (April 8, 2014) ("2014 LAX Audit Report"). 

91. The 2014 LAX Audit Repmi states that the Inspector General "identified about 

$7.87 million in unsupported charges without adequate documentation for services provided by 

the Los Angeles Police Department (LAPD) .... "

48 The Report adds: "Without adequate 

documentation or support, it is unclear if these charges were used for the capital or operating 

costs of' LAX. !d. The Report further states: "In 2012, LAW A and FAA stated [that] a recordkeeping system to track LAPD non-airport work time would be implemented to address 

46Jd at 3 (emphasis added). 

47 ACRP Document, at 25. 

48Jd. at 2. 

28 
allegations of unlawful revenue diversion .... However, because the City [of Los Angeles] has 

yet to fully implement such a record-keeping system, LA WA may be incorrectly spending 

additional revenue on LAPD non-airport work."49 

92. A4A's July 1, 2014 letter to DOT stated that the same concerns identified by the 

DOT Inspector General regarding LAX apply equally to the Portland Fees: 

It would make no sense for federal authorities to ensure, on the one hand, that an 

airport pays only for law enforcement services it receives but then, on the other 

hand, allow an airport to be allocated a portion of and pay the costs of utility-type 

services it does not receive and have no actual relationship to the airport50 

93. Following the June 24, 2014 meeting with DOT/FAA and A4A's July 1, 2014 

letter, DOT and FAA convened a meeting in Portland on September 16, 2014 to discuss the Fees 

and the airlines' position that the Fees violate the prohibition against diversion of airport 

revenue. Representatives from the City, the Port, the drainage district which handles the Airport, 

DOT, FAA and Alaska Airlines, and A4A, were in attendance at the meeting, which lasted 

nearly three hours. The governmental representatives consisted of: 

Three from DOT Office of the Secretary (OST) (Paul Geier, Assistant General 

Counsel, Litigation; Ron Jackson, Assistant General Counsel, Operations; and 

Nancy Kessler, Senior Attorney, Operations). 

Five from FAA (Randy Fiertz, Director of Airport Compliance; David Duchow, 

Revenue Use Specialist, Airport Compliance; Scott Mitchell, Attorney; Joelle 

Briggs, Regional Compliance Specialist, Seattle; and Patricia Deem, Attorney, 

Seattle. 

Two from PDX, including in-house attorney Ian Whitlock. 

Two from the Multnomah County Drainage District (District). 

Four from the City of Portland, including officials from the Bureau of 

Environmental Services (BES). 

50July 1 Letter, Exhibit 10, at 3. 

29 
94. The stated purpose of the September 16 meeting in Portland was "fact finding" by 

DOT and FAA with regard to the two contested charges. DOT attorneys Ron Jackson and Paul 

Geier commenced the meeting by stating that DOT and FAA take very seriously the prohibitions 

against illegal diversion of airport revenue, and that the calling of the meeting and attendance of 

so many DOT/FAA officials (including from 3,000 miles away) demonstrates how seriously the 

agencies take the concerns raised by the airlines. However, they also emphasized that DOT had 

not drawn any conclusion regarding the legality of the Fees. DOT officials were attending the 

meeting to hear from the state and local agencies involved in the factnal circumstances relating 

to the Fees. 

The Offsite Stormwater Management Fee 

95. During the September 16, 2014 meeting in Portland, theBES officials provided 

explanations regarding the Offsite Stormwater Management Fee, including the fact that the Fee 

is for managing stormwater in "rights-of-way" - meaning property in Portland that is not owned 

by commercial or residential users. Stormwater in the "rights-of-way" - e.g., roadways and 

surrounding areas -tends to be more expensive to manage than private property because homes 

and buildings tend to manage or collect some of their storm water, whereas the public areas tend 

to have more liquid to manage. 

96. The BES officials at the September 16 meeting stated that the methodology for 

charging the Offsite Storm water Management Fee was based on the study of a consnltant Black 

& Veatch from several years ago, but they acknowledged that the formula reflected only a 

general effort at trying to get to something the City thought was fair and equitable. 

97. The BES officials stated that storn1water charges are divided into onsite and 

offsite fees, and under the formula that is used, 35% of the City's storm water management costs 

are allocated to On-Site Fees, with the remaining 65% allocated to offsite charges. PDX (and 

30 
therefore its airline tenants) pay the offsite charges only because PDX manages its own 

stormwater directly or tluough the District. 

98. The BES officials fully admitted that the Offsite Stormwater Management Fee is 

not for any services provided at PDX. They also acknowledged that they had no concept of what 

federal laws against airport revenue diversion require. However, they maintained that it is 

equitable and fair to require the airport to pay for the offsite stormwater maintenance because the 

airport "benefits" when roads throughout Portland are not "under water" from lack of stormwater management. 

99. The BES officials at the September 16 meeting stated that City Council had 

decided that all persons and entities must pay to ensure that the roads are passable. This is the 

case regardless of whether the roadway in question is 10 feet or 10 miles from the airport. But 

the BES officials also maintained that the Airport imposes a significant impact on the 

transportation infrastructure of the greater Portland community, and that it must pay a portion of 

the costs for making sure roads are usable. The officials offered the example of the Fedex 

delivery truck that needs to use Portland area roads to get to the Airport. 

100. FAA attorney Scott Mitchell asked several questions during the September 16 

meeting in Portland. Mr. Mitchell inquired whether the Airport and the Airlines were perhaps 

being treated unfairly because the Offsite Charge is based on the amount of geographical space 

of the property owner, and PDX is a huge property compared to other properties in 

Portland. BES representatives would not say whether or not there is another entity within 

Portland that pays as much in Offsite Charges than PDX. 

31 
101. DOT lawyer Nancy Kessler asked BES officials during the September 16 meeting 

whether the alleged "benefit" to the airport is "direct" or "indirect." BES' in-house lawyer 

responded that the City had not defined the nature of the benefit as either "direct" or "indirect." 

102. BES representatives stated during the September 16 meeting that once the Offsite 

Stormwater Management Fee is fully implemented in 2017 and imposes approximately $4 

million on the airlines serving PDX, the total cost to the City of all stormwater management will 

be approximately $120 million (it is currently about $100 million). The largest portion of the 

City costs is for offsite storm water management. 

103. During the September 16 meeting, the District representatives stated that the 

charges they assess on PDX for water treatment are relatively low compared to BES charges 

because all the District does is "drainage." The Airport lies at a low sea-level and when water 

accumulates it needs to be drained. The District does not "treat" the water. The de-icing liquids 

are handled separately by PDX (but not the City). 

The Superfund Remediation Charge 

104. With regard to the Superfund Remediation Charge, BES officials stated during the 

September 16 meeting that the EPA investigation relates to a six mile stretch of the Willamette 

River. It does not involve PDX, which is on the Columbia River. The EPA investigation has 

been proceeding for many years, but it is still only in the planning stages. No real remediation 

has yet occurred, and BES representatives stated that they were precluded from offering any time 

projection as to when remediation may begin. 

105. BES officials stated during the meeting that the agency's position is that all 

Portland citizens and entities should pay a portion of the Superfund cleanup costs because they 

are not focused on allocating blame for the pollution -- which first occurred decades ago if not 

longer. Essentially, all must pay for the "sins of others." The allocation used to impose the 

32 
Superfund Fee is a "postage stamp" formula, meaning that the rate is m1iform for users across the 

City. The City believes that everyone benefits from a river that is healthy to swim in. 

106. At the end of the meeting the airline representatives were invited to ask questions 

or provide comments on the proceedings. The airline representatives used that opportunity to 

point out that the "general benefit" excuse for the contested Fees has no merit. The airline 

representatives pointed out that following such logic the airlines and government officials could 

be meeting in Detroit to discuss a plan for that city to bill DTW for increased police presence in 

downtown Detroit because the airport and airlines stand to benefit if Detroit is perceived to have 

less crime downtown. Of course, DOT/FAA could and would not agree to that type of charge. 

I 07. FAA and DOT have been very specific in asserting that airports cannot include 

general police and fire services in the airline rate base. The situation in Portland (involving OffSite Storm-Water rather than police services) is no different. Public "benefit" is not a 

justification in and of itself for an airport fee. 

108. In addition, the revenue diversion policy clearly deals with so-called "impact 

fees" and requires that the impact fees charged to airports be linked to the project or expense at 

issue. It is not snfficient for a government to have a "gut feeling" that there is a benefit to the 

airport and therefore the airport must pay for the expenses not on airport property. If there is a 

roadway to access the airport then expenses associated with that roadway may be allocated to the 

airport-- but only if the accOtmting is provided, reviewed and is substantiated. 

I 09. During the September 16 meeting, the airline representatives asked a BES 

attorney if he agreed that there was "no direct service" being provided to PDX. The BES lawyer 

would not agree, instead stating that the Airport and airlines "benefit" if the rest of Portland is 

not under water. But the attorney reiterated that the only reason PDX and the airlines are 

33 
charged the Offsite Stormwater Management Fee is because the Airport is within Portland. The 

Fee is not calculated based on actual output or intake of water. 

110. Following the September 16, 2004 meeting, A4A repeatedly contacted FAA and 

DOT officials for information regarding how the agencies planned to respond to the airlines' 

challenges to the contested charges. 

The FAA July 2015 Letter 

111. In a letter emailed to A4A on July 30, 2015 ("FAA July 2015 Letter") (Exhibit 12 

hereto), Randy Fiertz, Director of the FAA Office of Airport Compliance and Management 

Analysis, stated: 

Based on our review of available information, and reference to Generally 

Accepted Accounting Principles and Office of Management and Budget Circular 

A-87, we believe that the City of Portland's storm water management charge is an 

operating cost of the airport, because it arises as a legal obligation incident to 

the airport's possessory interest in land necessary for the provision of 

aeronautical services. It further appears that the stormwater management charge 

is allocated to all ratepayers within the jurisdiction, including the Port of Portland, 

based upon a transparent, uniform, and non-discriminatory rate-setting 

methodology. In the absence of any indication that the airport has been 

disproportionately targeted by the city, a non-sponsor of the airport, or that the 

airport has otherwise been overcharged for these services (e.g., double billed), we 

are not prepared to find that the charge exceeds the value of services provided to 

the airport51 

FAA also stated it was "not prepared to say ... that the airport's payment of the Superfund fee 

violates the grant assurances or the Revenue Use Policy."52 

112. FAA further stated that it encourages A4A and its members "to continue to work 

with the Port of Portland, the City of Portland, and the Multnomah County Drainage District to 

resolve this matter locally," and that "the Port, as the ratepayer, may have a forum with the city 

51 Exhibit 12, at 1 (emphasis added). 

52/d. at 2 n. 1. 

34 
to challenge the charges."53 FAA also recognized that A4A believes that the storm water charges 

constitute unlawful revenue diversion, but stated that: "given the complexities of this matter and 

the availability of local avenues for resolution, we are not prepared to find- certainly absent a 

more robust factual record developed in the context of a formal proceeding - that the airport's 

payment of those charges violates any grant assurance or FAA Revenue Use Policy." Yet the 

FAA added that "this letter does not constitute final action by the DOT on this matter."54 

113. On January 8, 2016, A4A sent a letter to the Port (Exhibit l3 hereto) in a final 

effort to resolve the dispute. A4A once again requested that the Port agree to cease the collection 

and remission of the Fees to the City. A4A explained that it and its member had hoped that the 

Port would find a solution through its communications with the City to avoid further collection 

and remittance to the City of the unlawful Fees, but this has not occurred and the airlines remain 

deeply concerned that they will have to continue to fund these Fees and other unlawful levies, in 

Portland and elsewhere, for years to come, and that the amount of the Fees will continue to 

increase each year. A4A explained that, having exhausted all other alternatives, A4A needed to 

file the instant Part 16 complaint to seek relief against further revenue diversion at the Airport. 

ll4. In response, the Port did not retreat from its position that it would continue to 

collect the Fees from the airlines at PDX absent a court or administrative order compelling it to 

do so. Rather, in a letter dated January 14, 2016, the Port stated that was "declin[ing" A4A's 

request to stop collecting the Fees from the PDX airlines. 5

5 

53 I d., at 2. 

54 I d. 

55 January 14, 2016 Letter, Exhibit 14 hereto. 

35 
115. On January 19, 2016, A4A responded to the Port's letter, stating: 

It is disappointing that the Port has decided to "continue collecting and remitting" 

the Fees given the unmistakable fact that the Fees constitute Airport-generated 

"revenue" that is being diverted away from the Airport for non-Airport related 

municipal projects and expenses, in clear violation of 49 U.S.C. Sections 47133 

and 47107(b)(1), the Port's grant assurances, and the [FAA Revenue Use 

P I

. ] 56 o 1ey. 

116. A4A's letter added that "FAA has provided nothing more than informal, tentative 

and non-binding advice. FAA has not issued a final order or other form of binding decision 

relating to the lawfulness of the Fees. Indeed, the July 30,2015 letter from FAA's Randy Fiertz 

confirms that it "does not constitute final action by DOT on this matter."57 Moreover, Mr. 

Fiertz's58 letter invited A4A to "file a complaint with FAA, where an actual factual record may 

be developed in any agency proceeding," and acknowledged that "a more robust factual record 

developed in the context of a formal proceeding" might lead to a different result. Additionally, 

the Port may not avoid its legal obligations under federal Grant Assurance 25 (no revenue 

diversion) and federal laws and regulations against revenue diversion by relying on undeveloped, 

informal and non-binding statements by FAA. 59 

117. A4A's letter further stated that "Unfortunately, the fact that neither the Port nor 

the City will take the appropriate action to cease the collection and remission of the unlawful 

Fees, means that the airlines serving PDX have no choice but to accept the 'invitation' in the 

FAA's July 30,2015 Letter and pursue their legal rights under 14 C.F.R. Part 16 to seek a formal 

determination from FAA that the Fees constitute unlawful revenue diversion. A4A very much 

56January 19,2016 Letter, Exhibit 15 hereto. 

57FAA July 2015 Letter, Exhibit 12, at 2. 

58ld. 

36 
regrets that its diligent efforts over the course of multiple years to resolve this matter absent 

litigation have not been successful. "60 

IX. THE FAA JULY 2015 [NON-FINAL] LETTER FAILS TO ADDRESS 

COMPLAINANTS' ARGUMENTS AND IS NOT BASED ON THE FACTS, THE LAW 

OR SOUND REASONING 

118. In addition to not being a final order, the position in the FAA July 2015 Letter 

that the offsite stormwater and Superfund charges do not constitute unlawful revenue diversion is 

contrary to the express language of 49 U.S.C. § 47133 and§ 47107(b). Pursuant to these federal 

statutes, "the revenues generated by an airport that is the subject of Federal assistance may not 

be expended for any purpose other than the capital or operating costs of- (1) the airport . . 

" (Emphasis added). 

119. The fact that a fee payable to a non-airport sponsor "arises as a legal obligation 

incident to the airport's possessory interest in land necessary for the provision of aeronautical 

services" (FAA Letter, at I) does not render the fee tied to any airport-related purpose or use. 

120. The FAA Letter does not offer a valid legal or factual justification for denying 

that imposition of fees for offsite storm water treatment and Superfund cleanup constitutes 

unlawful diversion of airport-generated revenues, in violation of 49 U.S. C.§ 47133(a)(l) and§ 

47107(b)(l)(A). 

121. Both 49 U.S.C. § 47133(a)(l) and § 47107(b)(l)(A) prohibit expending of 

revenues generated by an airport for any purpose other than "the capital or operating costs of' 

the airport. FAA does not try to argue that the fees are for the "capital" costs ofPDX. Instead, it 

asserts that the "storm water management charge is an operating cost of the airport, because it 

arises as a legal obligation incident to the airport's possessory interest in land necessary for the 

37 
provision of aeronautical services. "61 In other words, because the City demands that the airport 

pay the fee, it is therefore an "operating cost" of the airport. FAA applies the same reasoning 

(such as it is or is not) to the Superfund charge. 62 

122. This argument is illogical. Based on this reasoning, the City could demand as a 

"legal obligation" that the airport pay a fee to construct a new football stadium or to hire military 

commandos to keep the streets of the city crime free. But neither would relate to an "operating 

cost" of the airport. Yet under the FAA Letter, the fee would be an "operating cost" of the 

airport and therefore can be charged to airlines and paid to the City without running afoul of the 

revenue diversion laws. 

123. The Airport operates independently of offsite storm water management and 

Superfund cleanup. The City is demanding that the Airport pay for things other than what is 

needed to operate the Airport and the City is claiming that it has the legal right to do so and 

therefore the Airport must agree. 

124. The FAA Letter also erroneously states the government is "not prepared to find 

that the charge exceeds the value of services provided to the airport."63 FAA fails to identify any 

"value of services provided to the airport." Merely stating the storm water fees are an "operating 

cost" because the City has made them a "legal obligation" does not somehow create a "value" 

that the City is providing to the Airport. The FAA Letter is indeed circular. 

61FAA July 2015 Letter, Exhibit 12, at 1 (emphasis added). 

62Jd. at 2 n. 1. 

63FAA July 30,2015 Letter, Exhibit 12, at 1. 

38 
125. FAA's letter invited A4A to "file a complaint with FAA, where an actual factual 

record may be developed in any agency proceeding," and acknowledged that "a more robust 

factual record developed in the context of a formal proceeding" might lead to a different result." 

126. It is vital that FAA enforce the prohibitions against revenue diversion. The 

revenue diversion at PDX is typical of efforts by local governments to look to airports and 

airlines to fund municipal financial requirements. For example, in October 2015, a Chicago city 

alderman proposed to impose a surcharge on air transportation to "leverage the value" of O'Hare 

and Midway Airports to bankroll the hiring of at least 100 additional police officers to combat 

crime in the City of Chicago64 The resolution introduced to the Chicago City Council called on 

airlines at O'Hare and Midway to "voluntarily" impose a $1 surcharge on the 100 million 

passengers who flow through O'Hare and Midway each year65 

127. With regard to the laws against revenue diversion from U.S airports, the alderman 

argued that if the U.S. Senate can make an exception by directing $9.2 billion in airport revenue 

to the federal highway trust fund as the DRIVE Act requires, then Chicago should be free to use 

airport revenue to "save lives."66 The alderman also seeks to levy a "security fee" on airpmi 

concession contracts67 These sorts of efforts to have airports and airlines pay for general city 

services, in violation of federal law, will continue unless the FAA is vigilant in enforcing the 

laws against airport revenue diversion. 

64See Fran Spielman, Alderman seeks $1 surcharge on air travelers to .fund police hiring, 

Chicago Sun Times (Oct. 14,2015, I 0:52AM), http://chicago.suntimes.com/chicagopolitics/7 /71/1 023 944/alderman-proposes-1-surcharge-airline-passengers-bankroll-police-hiring 

(last accessed Feb. 10, 2016). 

6s I d. 

39 
X. PRAYER FOR RELIEF 

For the reasons set forth above, Complainants ask FAA to investigate the unlawful 

diversion of airport revenue that is occuning by reason of the collection and remission of the 

Off-Site Storm-Water and Superfund Remediation Charges in violation of Grant Assurance 25, 

Airport Revenues, and 49 U.S.C. § 47107(b) and§ 47133. In addition, FAA should: 

A. Make a finding that unlawful diversion of airport revenue that is occurring by 

reason of the collection and remission of the Off-Site Stmm-Water and Superfund Remediation 

Charges in violation of Grant Assurance 25, Airport Revenues, and 49 U.S.C. § 47107(b) and § 

47133; 

B. Order the Port to return to the Airport fund all amounts remitted to the City; 

C. Order the Port to take corrective action by ceasing to engage in further airport 

revenue diversion; and 

D. Order the Port to pay interest on the amount collected from the Airline 

Complainants and remitted to the City pursuant to 49 U.S.C. § 47107(o)(l) and 64 Fed. Reg. 

7697. 

Is/ David Berg 

David Berg 

Vice President & General Counsel 

Doug Mullen 

Assistant General Counsel 

Air Transport Association of America, Inc. 

d/b/a Airlines for America 

1275 Pennsylvania Avenue, N.W. 

Suite 1300 

Respectfully submitted, 

/s/ Roy Goldberg 

Roy Goldberg 

Steptoe & Johnson LLP 

1330 Connecticut Avenue, N.W. 

Washington, D.C 20036 

(202) 429-8028 

Email: rgoldberg@steptoe.com 

40 
Washington, D.C. 20004 

(202) 626-4234 

Email: dberg@airlines.org 

dmullen@airlines.org 

Dated: February 10,2016 

41 
CERTIFICATE OF SERVICE 

I certify that this lOth day of February, 2016, I caused a copy of this Complaint and all 

Exhibits thereto to be served on the following individuals: 

VIA HAND DELIVERY: 

Office of the Chief Counsel 

Attention: FAA Part 16 Airport Proceedings 

AGC-610 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

VIA ELECTRONIC DELIVERY: 

Randall Fiertz 

Randall.Fiertz@faa.gov 

Reggie Govan 

Reggie. govan@faa. gov 

Byron Huffman 

B yron.K.Huffman@faa. gov 

Scott Mitchell 

Scott.E.Mitchell@faa. gov 

Daphne Fuller 

Daphne.fuller@faa.gov 

Ian Whitlock 

Ian. Whitlock@portofportland.com 

Is/ Roy Goldberg 

Roy Goldberg 

42 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

AIR TRANSPORT ASSOCIATION OF 

AMERICA, INC. d/b/a AIRLINES FOR 

AMERICA, ALASKA AIRLINES, INC., 

AMERICAN AIRLINES, INC., ATLAS AIR, 

INC., FEDERAL EXPRESS 

CORPORATION, HAWAIIAN AIRLINES, 

INC., JETBLUE AIRWAYS INC., 

SOUTHWEST AIRLINES CO., UNITED 

AIRLINES, INC., UNITED PARCEL 

SERVICE CO., and AIR CANADA, 

Complainants, 

v. 

PORT OF PORTLAND, OREGON, 

Respondent. 

FAA Docket No. 16-16-

INDEX OF EXHIBITS TO PART 16 COMPLAINT 

1 Ordinance 185610 (September 9, 2012) 

2 "Stormwater Cost Allocation Study," Black & Veatch Corp. (August 23, 

2000) 

3 Letter from Vince Granato, Port of Portland Chief Operating Officer to 

Portland Commissioner Saltzman (May 4, 20 12) 

4 "Dear Ratepayer/Owner" Letter from City of Portland Bureau of 

Environmental Services (June 19, 2012) 

5 "Dear RATEPAYER" Letter from City of Portland Bureau of 

Environmental Services (August 6. 2012) 
6 Plaintiffs' Eleventh Status Report, Arkema Inc., et al. v. Anderson 

Roofing Co., et al., No. 3:09-cv-453-PK, Doc. 457 (D. Or. November II, 

2015) 

7 Airport Cooperative Research Program" (May 2008) ("ACRP 

Document") (Exhibit to July I, 2014 Letter) 

8 Letter from David Berg to Sam Adams (September 4, 2012) 

9 Memorandum from David A. Berg, et a!. to Susan L. Kurland, et a!. 

(January 14, 2014) 

10 Letter from David Berg to Kathryn B. Thomson, DOT General Counsel 

(July I, 2014) 

11 Audit Report, Office oflnspector General, DOT, Report No. AV-2014-

035 (AprilS, 2014) 

12 Letter from Randy Fiertz to David Berg (July 30, 2015) 

13 Letter to Bill Wyatt et a!. from Counsel for A4A (January 8, 20 16) 

14 Letter from Dan Blaufus, General Counsel of Port of Portland to Counsel 

for A4A (January 14, 2016) 

15 Letter to Dan Blaufus from Counsel for A4A (January 19, 2014) 

16 Declaration of Mark Berg (Alaska Airlines) 

17 Declaration of Monica W. Del Rio (Southwest Airlines) 

18 Declaration of Kevin Hoffmann (UPS Airlines) 

19 Declaration of Jeremy Ross (Alaska Airlines) 

20 Declaration of David Berg (Airlines for America)