Bfi Waste Systems of North America, Inc. v. F.A.A.

• Decision Date: 18 June 2002
• Docket Number: No. 01-1152.,01-1152.
• Citation: 293 F.3d 527
• Parties: BFI WASTE SYSTEMS OF NORTH AMERICA, INC., Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

293 F.3d 527

BFI WASTE SYSTEMS OF NORTH AMERICA, INC., Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.

No. 01-1152.

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 2002.

Decided June 18, 2002.

On Petition for Review of an Order of the Federal Aviation Administration.

Michael S. McCarthy argued the cause for the petitioner. Michael S. Freeman was on brief.

Jeffrica Jenkins Lee, Attorney, United States Department of Justice, argued the cause for the respondent. Robert S. Greenspan, Attorney, United States Department of Justice, was on brief. Christine N. Kohl, Attorney, United States Department of Justice, entered an appearance.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Opinion concurring in part and dissenting in part filed by Circuit Judge TATEL.

KAREN LeCRAFT HENDERSON, Circuit Judge:

BFI Waste Systems of North America, Inc. (BFI), petitions for review of a Federal Aviation Administration (FAA) decision, see Appendix for Petitioner (JA) at 5-9 (Affirmation), affirming the FAA's earlier determination that BFI's proposed expansion of a landfill near Denver International Airport (DIA) would be a hazard to air navigation, see id. at 207-09 (Hazard Determination or Determination). BFI claims, inter alia, that the Affirmation and Determination are arbitrary, capricious and otherwise unlawful and that the substantive findings underlying them are unsupported by substantial evidence in the administrative record. We agree and therefore grant the petition for review.

I.

The following factual recitation is divided into two sections — the first explaining the regulatory regime of the FAA and the second detailing how BFI's landfill proposal was (or was not) processed within that regime.

A.

Under the Federal Aviation Act of 1958 (Act), the FAA is authorized to determine whether a proposed construction or alteration project will present a hazard to air navigation. The Act states that the FAA "[b]y regulation ... shall require a person to give adequate public notice [of] ... the proposed construction, alteration, establishment, or expansion, of a structure or sanitary landfill when the notice will promote... (1) safety in air commerce; and (2) the efficient use and preservation of the navigable airspace and of airport traffic capacity at public-use airports." 49 U.S.C. § 44718(a). Pursuant to its statutory authority, the FAA has promulgated regulations requiring a project sponsor to notify the FAA when the sponsor proposes, inter alia, any alteration resulting in a sanitary landfill "of more than 200 feet in height above the ground level at its site." 14 C.F.R. § 77.13(a)(1). Under the regulations, "[e]ach person who is required to notify the [FAA] under § 77.13(a) shall send [to it] one executed form set (four copies) of FAA Form 7460-1, Notice of Proposed Construction or Alteration." 14 C.F.R. § 77.17(a). The information contained in the Form 7460-1 is meant to provide the FAA with a basis for determining "the possible hazardous effect of the proposed construction or alteration on air navigation." 14 C.F.R. § 77.11(b)(2).

In addition to setting out notice requirements, the regulations provide the standards by which alteration proposals are evaluated. For instance, Subpart C of the regulations "establishes standards for determining obstructions to air navigation" and "applies to existing and proposed manmade objects, objects of natural growth, and terrain." 14 C.F.R. § 77.21(a). Subpart C states that a proposed manmade object, like a landfill, is "an obstruction to air navigation" if it is "500 feet above ground level at the site of the object," 14 C.F.R. § 77.23(a)(1), or if it is "200 feet above ground level... within 3 nautical miles of the established reference point of an airport, excluding heliports," 14 C.F.R. § 77.23(a)(2). Under FAA Order 7400.2D, "Procedures for Handling Airspace Matters" (Sept. 16, 1993) (FAA Handbook) — a binding set of FAA guidelines, see D&F Afonso Realty Trust v. Garvey, 216 F.3d 1191, 1196 (D.C.Cir.2000) (FAA Handbook is "controlling")—a proposed object that exceeds the standards of Subpart C is presumed to have a substantial adverse effect on the use of airspace and is therefore "presumed to be [a] hazard[] to air navigation unless an aeronautical study determines otherwise." FAA Handbook ¶ 7-1(b).

The Act and the regulations require the FAA, in certain circumstances, to conduct an aeronautical study to determine the extent of any adverse impact on the use of airspace. The relevant provision of the statute provides that

[u]nder regulations prescribed by the Secretary [of Transportation], if the [FAA] decides that constructing or altering a structure may result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace, [it] shall conduct an aeronautical study to decide the extent of any adverse impact on the safe and efficient use of the airspace, facilities, or equipment.

49 U.S.C. § 44718(b)(1). Pursuant to this statutory authority, the Secretary has prescribed Subpart D, which provides that

[t]he Regional Manager, Air Traffic Division of the region in which the proposed construction or alteration would be located ... conducts [an] aeronautical study [that] ... may include the physical and electromagnetic radiation effect the proposal may have on the operation of an air navigation facility....

To the extent considered necessary, the Regional Manager ... [s]olicits comments from all interested persons; ... [e]xplores objections to the proposal and attempts to develop recommendations for adjustment of aviation requirements that would accommodate the proposed construction or alteration; [and] ... [c]onvenes a meeting with all interested persons for the purpose of gathering all facts relevant to the effect of the proposed construction or alteration on the safe and efficient utilization of the navigable airspace.

14 C.F.R. § 77.35(a), (b). Once an aeronautical study has been initiated, the FAA applies all of its "operational, procedural and electronic" standards (including those pertaining to radar coverage) to "determine if the object being studied would actually be a hazard to air navigation." FAA Handbook ¶ 7-1(b); see id. ¶ 7-3 ("An object to be considered for adverse aeronautical effect must first exceed the obstruction standards of Subpart C and/or be found to have physical or electromagnetic radiation effect on the operation of air navigation facilities."). Upon the study's conclusion, the Regional Manager issues a hazard/no-hazard determination. See 14 C.F.R. § 77.35(c). In order to issue a hazard determination, the Regional Manager "must find by a clear showing that the [object] in question will have a `substantial adverse effect' on air navigation." D&F Afonso, 216 F.3d at 1195 (citing FAA Handbook ¶ ¶ 7-2 to 7-5, 8-2); see also FAA Handbook Fig. 4-23[9]. The Regional Manager's determination is final unless the FAA grants discretionary review. See 14 C.F.R. § 77.37.

A hazard/no-hazard determination has "no enforceable legal effect." Aircraft Owners & Pilots Ass'n v. FAA, 600 F.2d 965, 966 (D.C.Cir.1979). The FAA lacks authority to prohibit a construction or alteration it believes to be hazardous to air navigation.¹ See id. at 967. Nonetheless, a hazard determination can hinder the project sponsor in acquiring insurance, securing financing or obtaining approval from state or local authorities. See id.

B.

BFI is a waste disposal company that operates solid waste landfills in Colorado, including the Tower Road landfill at issue here. The Tower Road landfill is located approximately two miles west of DIA in Commerce City, Colorado. Before 1999 BFI had permission from state and local authorities to extend the landfill vertically to 119 feet above ground level (AGL) at its tallest point. In February 1999 BFI obtained state and local authorization to increase the landfill's height by 157 feet (to 276 feet AGL) over a period of 40-60 years. Thus, as of March 1999, the FAA's regulatory approval was the final approval needed in order to expand.

On March 16, 1999 BFI representatives met with an official from the FAA's Denver Airports District Office (ADO). At the meeting, BFI submitted a preliminary FAA Form 7460-1 to the FAA and the attendees discussed the proposal's potential impact on airport traffic and radar operations. Emphasizing "the need to perform analysis" before drawing conclusions, the ADO informed BFI that "[t]he degree of impact to the [airport surveillance radar] line of sight will need to be studied and no commitments [are being] made at this time." JA 47. On April 16 BFI formally submitted a Form 7460-1 to the FAA's Northwest Mountain Region regarding the 157-foot alteration proposal. The FAA received the form, at the earliest, on April 22. On April 26 the FAA's Northwest Mountain Region issued a notice that it intended to conduct an aeronautical study to determine the effect of the landfill expansion on air navigation. At no time did the FAA "circularize" the aeronautical study notice to interested parties or even to BFI.² On May 26 Tower Road landfill officials met with ADO representatives who briefly toured the landfill. Although the record recites that potential radar effects were "currently being reviewed," id. at 83, it does not state that radar issues were in fact discussed at the meeting.

On August 30, 1999 the FAA's Northwest Mountain Region issued the Hazard Determination, which consisted of a form cover letter and a one-page summary of findings. The Determination identified five adverse impacts on the safe and efficient use of navigable airspace at DIA: (1) birds attracted to the landfill could interfere with aircraft; (2) large dump trucks and other heavy equipment operating on the landfill could block or reflect radar signals; (3) the increased size...