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Queens Chronicle

Court rejects LGA trash station appeal

Federal judges say 2nd Circuit lacks jurisdiction on FAA letter

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Posted: Thursday, April 18, 2013 10:30 am | Updated: 10:32 am, Thu Apr 25, 2013.

An appeals court has rejected a request from Friends of LaGuardia Airport to review federal recommendations for construction of a 100-foot-high garbage transfer station near the end of the airport’s Runway 31.

FOLA, led by Kenneth Paskar, has been challenging the process by which the city, the Port Authority of New York and New Jersey and the Federal Aviation Administration arrived at the decision to approve and build the North Shore Transfer Station, a 100-foot-high garbage facility in College Point.

The site is just over 2,000 feet across Flushing Bay from the end of LaGuardia’s Runway 31.

Paskar and FOLA contend that the location will attract birds looking to feed on the garbage and on rats attracted to the site, thus increasing the likelihood of bird strikes on planes landing at and taking off from the airport.

They have in the last two years accused the city, the PA and the FAA of ignoring normal approval procedures regarding potential risks to aviation around airports.

The city says that it will simply replace a garbage facility that operated on the same site for decades until 1999, and that the new one will be totally enclosed and “is specifically designed to prevent attracting birds and other pests.”

At issue was a letter from the FAA to the city dated Sept. 2, 2010, which accompanied the results of a wildlife-airport compatibility study. The letter stated that the location of the station would not pose a threat to aviation — if the city complied with FAA-recommended changes to the proposed construction and methods of operation at the site.

In a 17-page opinion issued April 9, Senior District Judge Alvin Hellerstein of the U.S. Court of Appeals for the Second Circuit wrote that the court does not have the jurisdiction to review the letter, as it cannot be construed as an order from the FAA.

“No term in the letter ‘imposes obligation’ on the city, or ‘fixes some legal relationship with the city,’” Hellerstein wrote for the three-judge panel.

He added that the letter “urge[d]” the city to implement the report’s recommendations and expressed the sentiment that the recommendations “are important for the city to adopt.

“However, there is nothing in the Letter that commands the city to stop, change or continue construction of the North Shore Station,” the opinion states. “The city could have accepted or rejected the FAA’s recommendations with no recourse by any party. [Paskar and FOLA] do not contest this point, and have presented no authority that holds otherwise.”

The Second Circuit’s Motions Panel had rejected the city’s motion to dismiss in April 2011, paving the way for the current proceedings.

Had the court found it did have jurisdiction, it could have ruled on the plaintiffs’ contention that the letter was “arbitrary and capricious” and could have amended, modified or rejected all or any part of the 2010 letter.

Paskar, the lead plaintiff in the case, said in a telephone interview on April 11 that the court did not rule on the merits of FOLA’s request for review.

He said the group is considering asking the court to reconsider its ruling.

“I’m extremely disappointed,” Paskar said. “Previously when the government filed a motion to dismiss, saying the court lacked jurisdiction, they were denied,” he said. “In this case the court decides there is no jurisdiction and does not rule on the merits. I don’t understand this ruling.”

The station is a key element of Mayor Bloomberg’s five-borough citywide trash removal program.

“We’ve prevailed in eight separate lawsuits challenging various aspects of this critical project at the trial level,” John McCarthy, a spokesman for the mayor, said in a statement issued by City Hall’s Law Department. “Including appeals, it’s now 11 times that a court has ruled against those who don’t want to bear their fair share of the load to dispose of 11,000 tons of garbage that New Yorkers produce every day.”

Paskar did not consider the ruling so clear-cut.

“They prevailed on a technicality,” he said.

Paskar and FOLA fear that an accumulation of birds near the end of one of the busiest runways in the world could cause aircraft bird strikes like the one that brought down a US Airways jet in January 2009.

Impact from a flock of migratory Canada geese not from Flushing Bay destroyed both engines on the plane at 3,000 feet shortly after takeoff from LaGuardia.

Capt. Chesley Sullenberger, an Air Force veteran with glider experience, and co-pilot Jeff Skiles eased the crippled jet down in the Hudson River with no loss of life.

Sullenberger has made a public service announcement critical of the station’s placement.

The FAA and the U.S. Department of Transportation have ruled that the transfer station will not pose a hazard should the city adopt practices to mitigate odors and the access of wildlife to the garbage.

Jim Hall, who served as director of the National Transportation Safety Board for seven years under President Clinton, is vehemently opposed to the station.

While he could not be contacted for comment this week, he has said repeatedly that bird strikes are a serious concern.

He has said this is the first instance in his memory in which the FAA “has approved a hazard to aviation where none has existed before.”

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