Kenneth D. Paskar & Friends of Laguardia Airport, Inc. v. City of N.Y.

• Decision Date: 10 March 2014
• Docket Number: No. 13 Civ. 5897 (PAC).,13 Civ. 5897 (PAC).
• Citation: 3 F.Supp.3d 129
• Court: U.S. District Court — Southern District of New York
• Parties: Kenneth D. PASKAR and Friends of LaGuardia Airport, Inc., Plaintiffs, v. The CITY OF NEW YORK and New York City Department of Sanitation, Defendants.

3 F.Supp.3d 129

Kenneth D. PASKAR and Friends of LaGuardia Airport, Inc., Plaintiffs,

v.The CITY OF NEW YORK and New York City Department of Sanitation, Defendants.

No. 13 Civ. 5897 (PAC).

United States District Court,

S.D. New York.

Signed March 10, 2014.

Steven Michael Taber, Taber Law Group, P.C., Irvine, CA, for Plaintiffs.

Haley Hara Stein, NYC Law Department, New York, NY, for Defendants.

OPINION & ORDER

Honorable PAUL A. CROTTY, District Judge.

Plaintiffs Kenneth D. Paskar and Friends of LaGuardia Airport, Inc. (“FOLA”) (a not-for-profit corporation which advocates for the elimination of aviation safety hazards—Mr. Paskar is the President), bring this action against the City of New York and the New York City Department of Sanitation (“DSNY”) (collectively, “Defendants”), claiming that the construction and operation of the North Shore Marine Transfer Station in College Point, Queens, immediately across Flushing Bay from LaGuardia Airport, violates the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(A).¹ They seek declaratory and injunctive relief because of the City's and DSNY's alleged failure to comply with 40 C.F.R. § 258.10² and 49 U.S.C. § 44718(a).³ (Am.Compl., ¶¶ 2, 3). Plaintiff alleges that the construction and operation of the North Shore Marine Transfer Station (“NSMTS”) is “an aviation hazard due to the fact it will increase the risk of bird strikes” (Am.Compl., ¶ 3); and “building a garbage dump at the end of Runway 31 at LaGuardia is a ludicrous idea.” (Pl. Opp. Memo. at 3.) The gravamen of Mr. Paskar's and FOLA's complaint is that the garbage and waste received and processed at the NSMTS will attract birds which will in turn cause airplanes to fall “from the sky due to a bird strike at LaGuardia.” ⁴ ( Id. at 4). Review of the construction and operation of the facility is sought because the facility allegedly violates the RCRA.

Defendants move to dismiss the Amended Complaint for two reasons: (1) the transfer facility is not a municipal solid waste landfill (“MSWLF”), and is not subjectto 40 C.F.R. 258; and (2) in any event, there is no private right of action to enforce 49 U.S.C. § 44718(a)(1) and (2). Plaintiffs respond that (1) the allegation that the North Shore Marine Transfer Station meets the definition of a landfill under the RCRA and should be regulated as such, raises a question of fact sufficient to survive a motion to dismiss; and (2) though not explicit, there is an implied private right of action under 49 U.S.C. § 44718(a)(1) and (2).

For the reasons that follow, Defendants' motion is granted.

BACKGROUND

This is not Plaintiffs' first trip to the Courthouse to stop the construction of the NSMTS. Similar arguments have been made to federal and state courts, as well as federal and state agencies on four prior occasions. None has been successful. In order to put the current pleading in context, however, each of them is briefly summarized:

(1) Plaintiffs initiated an administrative challenge before the Federal Aviation Agency (“FAA”), pursuant to 14 C.F.R. Part 16, claiming that the City's construction of the NSMTS violated various assurances made in agreements between the FAA and the Port Authority of N.Y. and N.J. (“Port Authority”) for funding of LaGuardia Airport. The FAA found that the City was neither a signatory nor a party to the grant agreements, nor was the City a proper “respondent” under 14 C.F.R. § 16.3. While the City owns the land on which LaGuardia Airport is built, it is neither a sponsor nor an operator of the airport within the meaning of the regulation.

Upon review of the FAA's administrative determination, the Second Circuit held that

[The FAA's] factual findings were supported by substantial evidence, and its application of the law to the facts is not arbitrary or capricious, or an abuse of discretion, or otherwise contrary to law.... Although the City owns the land upon which LaGuardia Airport sits, the Port Authority is the operator of LaGuardia and leases the land from the City. The City does not qualify as a ‘sponsor’ under the terms of the grant agreement, statute, see 49 U.S.C. § 47102(26) or regulations, see14 C.F.R. § 16.3, because it is not an agency that receives financial assistance from the FAA. The City is not a ‘proprietor’ because ownership alone is not sufficient to warrant proprietor status as the City does not ‘operate’ the airport.

Paskar v. F.A.A., 478 Fed.Appx. 707, 708 (2d Cir.2012).

(2) Plaintiffs initiated an Article 78 proceeding against the New York State Department of Environmental Conservation (“DEC”) and DSNY in December, 2010. Plaintiffs complained of the on-going construction of the NSMTS, especially in light of the hazard of bird strikes. In that connection, Plaintiffs cited the bird strikes that occurred at LaGuardia when migratory birds collided with U.S. Airways, Flight 1548, upon takeoff on January 15, 2009. But for the great skills of the captain, co-captain and the crew, the flight would have ended in disaster, instead of resulting in the “Miracle on the Hudson.” Notwithstanding this vivid example of the danger of bird strikes, the DEC refused Plaintiffs' demand to conduct further studies before proceeding with the construction of the NSMTS. Instead of doing an entire reanalysis, DEC merely modified its permit to include DSNY's agreement to amend the DEC permit to include airways' warning lights of the NSMTS.

The New York State Supreme Court held that FOLA had no standing to commence and maintain the action against the City since it was not incorporated at the time Paskar commenced the Article 78 proceeding. While Mr. Paskar had standing to challenge the DEC's failure to respond to his November 12, 2010 letter demanding that DEC conduct a new study, Mr. Paskar could not “compel the DEC or the DSNY to act in any particular manner in connection with the subject permit.... [I]t is for the DEC, and not the Court, to determine whether a permit issued by said agency should [be] modified, suspended, or revoked.” Paskar v. Dep't of Envtl. Conservation, 33 Misc.3d 1226(A), 2011 WL 5925035 at *5–6 (N.Y.Sup.Ct. Queens Cnty.2011). Mr. Paskar's petition was dismissed. Id. at *6.

(3) Last year, the Second Circuit considered whether the FAA's September 2, 2010 letter to the City of New York constituted a final order subject to review, as Mr. Paskar and FOLA contended; or not a final order, and therefore beyond the Court's jurisdiction to review. The FAA's letter agreed with an expert panel's conclusion that the City's plans to construct and operate a marine transfer station in College Point, Queens (in the immediate vicinity of LaGuardia Airport) would be compatible with safe air operations, as long as several recommendations are followed.

That determination was based on a record which included actions the City took after the FAA conducted aeronautical studies. In 2006, the City agreed to reduce the height of the proposed transfer facility from 110' to 100' and to move the facility out of the runway protection zone. The Port Authority, LaGuardia's operator, accepted the changes and withdrew its petition for review. When the City altered its design of the NSMTS, the FAA conducted another aeronautical study. On September 19, 2008, the FAA issued a No Hazard determination, so long as the facility was equipped with proper lighting.

Four months after the second No Hazard determination, in January, 2009, U.S. Airways Flight 1549, while on take-off from LaGuardia, flew into a flock of migrating birds, resulting in what would have been a disaster, but for the highly skilled and heroic actions of the pilot, co-pilot and flight crew. Opponents of the NSMTS seized on the near-disaster to renew arguments against the NSMTS: that the facility would attract birds which would increase the risk of bird strikes, and perhaps result in plane crashes.

In the fall of 2009, the Secretary of Transportation convened a panel of experts, including the FAA, USDA, U.S. Air Force, as well as state and local agencies, to review and study the impact of the NSMTS on the safe operations at LaGuardia. The panel issued its report on September 2, 2010, concluding that the transfer station is compatible with safe air operations, so long as it is constructed and operated in accordance with the expert panel's recommendations. The City accepted the panel's recommendations and proceeded with the construction in accordance with the recommendations.

Mr. Paskar and FOLA sought review of the September 2, 2010 letter. Respondents DOT/FAA, and the City as intervener, moved to dismiss. A motion panel of the Second Circuit denied the motion to dismiss, holding that the September 2, 2010 letter was an “Order” and appropriate for review. Paskar v. United States Dep't of Transp., 2011 U.S.App. LEXIS 26564, at 2 (2d Cir. Apr. 6, 2011). The merits panel, however, disagreed, and held that the September 2, 2010 FAA letter was not a final order. The Court construed the September 2, 2010 expert panel's report as a recommendation which “imposed no obligation,denied no right, and fixed no legal relationship.' ” Paskar v. United States Dep't of Transp., 714 F.3d 90, 97 (2d Cir.2013). The City could have accepted or rejected the expert panel's recommendation “without recourse by any party,” Id. at 96:

“In the present case, the FAA letter does not pose a practical ‘stumbling block’ to the construction of the North Shore Station. The letter is not a No Hazard determination. FAA aeronautical studies in 2006 and 2008 had already determined that the Station posed No Hazard to air navigation. The panel report was consistent with those determinations, and neither created, nor removed, a ‘stumbling block.’ Nothing in the recommendations of the panel, or the Letter, ordered the City to do anything, or to desist from doing anything. No other regulatory agency awaited the issuance of the panel report, and no financing or insurance was conditioned on the content of...