Petition for Writ of Certiorari — Town of Rye v. Skinner
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Supreme Court, US,
FILED
SEP 74 1990
90-520 | wm
IN THE CLERK
Supreme Court of the United States
OcTosBErR TERM, 1990
TOWN OF RYE, NEW YORK; TOWN OF NORTH CASTLE,
NEW YORK; CITY OF RYE, NEW YORK; TOWN/VILLAGE OF
HARRISON, NEW YORK; TOWN OF NEW CASTLE, NEW
YORK; TOWN OF MT. PLEASANT, NEW YORK; TOWN OF
GREENWICH, CONNECTICUT; AIR CONSERVATION
TRUST, INC.; AIRPORT CONCERN TEAM, INC.; WESTCHES-
TER COALITION TO LIMIT AIRPORT EXPANSION, INC.,
Petitioners,
— against —
SAMUEL K. SKINNER, Secretary of Transportation; JAMES B.
BUSEY, Administrator, Federal Aviation Administration; THE
FEDERAL AVIATION ADMINISTRATION; DANIEL J. PETER-
SON, Regional Administrator, Federal Aviation Administration;
WILLIAM HANDEL, Manager Airports Division, Federal
Aviation Administration; COUNTY OF WESTCHESTER, NEW
¥ORK; ANDREW P. O’ROURKE, County Executive for the
County of Westchester, New York; WESTCHESTER COUNTY
BOARD OF LEGISLATORS; WESTCHESTER COUNTY
DEPARTMENT OF TRANSPORTATION,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Davin SIVE
460 Park Avenue
Of Counsel: New York, New York 10022
SivE, PaGET & RreseL, PC. (212) 421-2150
Attorneys for Petitioners Counsel for Petitioners
RICHARD M. HALL
Lyp1a B. DuFF
On the Petition
i
a es
QUESTIONS PRESENTED
Did the Federal Aviation Admin-
istration violate principles of
fundamental fairness when it
barred public consideration of
its definitive analysis of the
critical demand-capacity
issues, and thereby violate its
own regulations requiring pub-
lic involvement throughout the
development of the Westchester
Airport Project?
Under Vermont Yankee Nuclear
Power Corp. v. Natural Resourc-
es Defense Council, Inc., 435
U.S. 519 (1978) and later cas-
es, when construing administra-
tive agency regulations that
require public involvement in
environmental decision making,
what standards of construction
should federal courts follow in
cases where agencies have vio-
lated principles of fundamental
fairness in informal adjudica-
tion?
(1)
ae ya
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED........... i
TABLE OF AUTHORITIES.......... vi
OPINIONS i. i nk he awe ew os 6 66 6 8 1
STATEMENT OF JURISDICTION..... 3
STATUTES AND REGULATIONS
EROVOESVIES Coe eeeesesececoccece 3
STATEMENT OF THE CASE......... 5
The Public's
RIPE e cece ccceccces Qa
The October 1989
AMMAVEEBs cccccccscesecees 13
The Proceedings in the
BOGOR GCUPSUAS. << cccsaccs 16
REASONS FOR GRANTING THE WRIT
POINT I
THE FAA PROCEDURES WITH
REGARD TO PUBLIC COMMENT
ON THE OCTOBER 1989
ANALYSIS VIOLATED
PRINCIPLES OF FUNDA-
MENTAL FAIRNESS.......... 19
(ii)
Public Involvement is
Vital to Agency
Processing Under NEPA....
Public Involvement Under
Order 5050.4A.....2.eeees
Fundamental Fairness
Through Public
Participation............
POINT II
IN THE ERA OF VERMONT
YANKEE THE STANDARDS OF
CONSTRUCTION OF ADMIN-
ISTRATIVE REGULATIONS
REQUIRING PUBLIC INVOLVE-
MENT IN INFORMAL AGENCY
ADJUDICATIONS SHOULD GIVE
WEIGHT TO PRINCIPLES OF
FUNDAMENTAL FAIRNESS.....
COMCT RIB EOcccceeeeseeseeeeeosce
GLOSSARY OF ACRONYMS........--
(iii)
19
21
24
35
46
47
APPENDIX
Opinion of the United States
Court of Appeals for the
Second Circuit, dated
Dames BBs Beeddecbssccsiics O-2
Federal Aviation Administration
Record of Decision, dated
November 30, 1989............ A-7
Federal Aviation Administration
Finding of No Significant
Impact, dated November 30,
U9SD i wecccccccesccccccccccces§) AM1L§
Federal Aviation Administration
Demand, Capacity and Operational
Analysis of Westchester County
Airport, dated October 1,
iL) ) Perrerererre rT Tre st ececce A-49
Point by Point Analysis of
Sive, Paget & Riesel, P.C.
COMMGMSH ec ccccccccscescccessece § AWG3
Point by Point Analysis of
TAMS Consultants May 4, 1989
DMBAVORSs 4 co veer ccvisecscisers A-75
Comments submitted by Sive,
Paget & Riesel, P.C. on
behalf of the Town of
Greenwich and the Air
Conservation Trust, dated
December 9, 19BB...ccccccces A-78
(iv)
Comments submitted by Sive,
Paget & Riesel, P.C. on
behalf of the Town of Greenwich
and the Air Conservation Trust,
Gated May 5, 1989.....-..+.6.-. A-95
Comments submitted by TAMS
Consultants, dated May 4,
19B9. cc cceccvcce TEETECELEL ET A-113
(v)
TABLE OF AUTHORITIES
CASES Page
Appalachian Mountain Club
v. Brinegar, 394 F. Supp.
165 (D.N.H. 1975S) w~cccece e*eeete 29, 30
Bowman Transportation,
Inc. v. Arkansas-Best
’
419 G.B. BOR CASIE) occ ccccecs 24, 25
34
u Vv. j s,
690 F.2d 1170 (5th Cir.
1982), cert. denied, 461
a 927 (29B3) eccccecs 7-eeteeee 42, 43
Co j &
eee seu eek a 4 20, 21
Commission, 491 F.2d 810
(2d cir. 1974) wcccecss eeeeeee# « 27
Essex County Preservation
Association v. Campbell,
399 F. Supp. 208 (D. Mass.
1975), aff'd, 536 F.2d 956
(ASE CaF. 1976) wccccccccccses 31
, 471
Hanly v. Kleindienst
F.2d 823 (2d Cir. 1972),
cert. denied, 412 U.S. 908...19, 20
908 (D.C. Cir. 1982)
, 502 F.2d
~
, 690 F.2d
TTTTTTILT: 34
461
(D.C.Cir. 1974), rev'd in
part on other grounds, 424
U.S. 494 (1976).....
: - R
v. Burford, 835 F.2d
eeeeeeee#e#es 27
305
(D.C. Cir. 1987)... eeees e*eeee 29
Wi
v. Marsh, 568 F. Supp. 985
(D.D.C. 1983)... eee eee eeeneess 25, 26
34
» woe
F. Supp. 170 (D.D.C. 1972).... 31
P . E Fit G
Corporation v. LTV, U.S.
, 110 S.Ct. 2668
(1990) ....ceeee eSSeseeernesess 32, 33
35, 40
41, 43
44
Ww Vv ’
907 F.2d 23 (2d Cir. 1990).... 1, 2
(vii)
United States Lines, Inc.
v. Federal Maritime
Commission, 584 F.2d 519
(D.C. Cir. AD7TS) wrcccvecccsceeddy
,» 412
U.S. 669 CASTS) cocccccccececes
Vermont Yankee Nuclear Power
Corp. v. Natural Resources
» 435
Defense Council, Inc.
KS. 2.) eee
STATUTES
Administrative Procedure
Act, 5 U.S.C. §§ 551
QE BOG, cccccccccescccscccces
Federal Land Policy and
Management Act, 43 U.S.C.
§§ 1701 et seg. .............
National Environmental
Policy Act 42 U.S.C.
SS32L BE BOMccccccccccccccecs
New York State Environmental
Quality Review Act,
Environmental Conservation
Law §§ 8-0101 et seg. .......
BO O.G.8. GURDGRERS 666 ks vices
(viii)
28
34
35
41
32
29
26 U.S.C. GEABL IC). 60000
42 ses $7604. ccccccces
49 U.S.C. §1486.......4.4--
REGULATIONS
7 C.F.R. §3100.45...... oe
e*ees
18 C.F.R. §401.51....-2eeeeee
6401.58. ccccccccccs
§401.61.......--.
33 C.F.R. §230.11.......-.
40 C.F.R. §6.400........-.
66.403 -ccccccccccece
Regulations of the Council
on Environmental Quality,
40 C.F.R. Part 1500..........
§1501.4(e) (2)..
64 C.FcRs. CAO BOM UH) ss dcavc es
OO Sink seis os ou
§10.7(c) (2)
(ix)
45
37
37
37
37
Peer 38
OTHER AUTHORITIES
1 Davis, Administrative Law
Treatise, 14 (2d Ed. 1978)....5, 39
Federal Aviation
Administration Order
SO050.4A. wc ec ccccccccccccce ss Dassim
Scalia, A., “Vermont Yankee: The
APA, the D.C. Circuit, and the
Supreme Court", 1978 Sup.Ct.
mvs SEP raccescses TreePrerrryT Se 5, 38
(x)
OT
IN THE
SUPREME COURT OF THE UNITED STATES
OCTORER TERM, 1990
No. 90-
TOWN OF RYE, NEW YORK, et al.
Petitioners,
Vv.
SKINNER, et al.
Respondents.
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
OPINIONS BELOW
The opinion of the United
States Court of Appeals for the
Second Circuit, denying the petition
for review of the Orders of Samuel
K. Skinner, Secretary of Transporta-
tion, is reported at 907 F.2d 23 (2d
Cir. 1990). It is reproduced in the
Appendix to this Petition at A-1-6.'
The unreported administrative opin-
ions of the Federal Aviation Admin-
istration (the "FAA") involved in
these proceedings are the Record of
Decision ("ROD") dated November 30,
1989, the Finding of No Significant
Impact ("FONSI") dated November 30,
1989, and the Airport Layout Plan
("ALP") Approval dated February 28,
1990. These opinions are reproduced
at A-7-45.
1 References to the decision
below and other documents reproduced
in the Appendix are hereinafter
designated parenthetically as "A-"
followed by the Appendix page num-
ber(s) on which the referenced mate-
rial appears.
STATEMENT OF JURISDICTION
The judgment of the Court of
Appeals for the Second Circuit was
entered on June 25, 1990. This
petition is filed within 90 days
thereof pursuant to 28 U.S.C. §
2101(c). The jurisdiction of this
Court is invoked pursuant to 28
U.S.C. § 1284(1).
STATUTES AND REGULATIONS INVOLVED
The following regulatory order
is involved in this case.
Federal Aviation Administration
Order 5050.4A § 18(a):
Citizen involvement, where
appropriate, should be initiated at
the earliest practical time and
continued throughout the development
of the proposed project in order to
obtain meaningful input. Examples
of citizen groups are: environmen-
tal, conservation, public service,
education, labor, business, or
3
aviation and airspace user
organizations, and citizen advisory
committees.
Federal Aviation Administration
Order 5050.4A §18(b):
While requests for Federal
airport actions originate with a
local public agency, the involvement
of the community at large is a
necessary element in the
decisionmaking process. An
effective opportunity to comment at
appropriate stages in the
decisionmaking process shall _ be
provided to communities, citizen
groups, and other individuals
affected by airport proposals
submitted to the FAA. They shall
also be provided an opportunity to
review and comment on draft and
final statements. In order to
provide an effective opportunity for
comment when significant portions of
the affected public have a native
language other than English,
environmental documents may be
provided or public hearings
conducted in such native language.
STATEMENT OF THE CASE
This case raises the issue of
the standard of construction of
administrative agency regulations
which contain ambiguous mandates of
public involvement in informal adju-
@ Petitioners urge that
dication.
Federal Aviation Administration
Order 5050.4A ("Order 5050.4A") be
construed in accordance with Vermont
Yankee Nuclear Power Corp. -
Natural Resources Defense Council,
Inc., ("Vermont Yankee") 435 U.S.
519 (1978), to effect fundamental
e The "vast majority" (Scal-
ia, A., “Vermont Yankee: the APA,
the D.C.Circuit, and the Supreme
Court," 1978 Sup.Ct. Rev. 345, 385
(hereinafter "Scalia")), "possibly
90%" (1 Davis, Administrative Law
Treatise, 14 (2d Ed. 1978)), of all
administrative actions fall into
this category.
fairness principles.
In these proceedings, brought
under 49 U.S.C. § 1486, petitioners
sought review of the ROD, FONSI, and
ALP Approval issued by the FAA for a
new passenger terminal and related
facilities for the Westchester Coun-
ty Airport in New York (the "airport
project" or the "project"). Peti-
tioners, who include municipalities
and citizens groups in the area
surrounding the airport, have op-
posed the airport project out of
concern for the potential environ-
mental impacts of the facility.°
> The project has required
environmental review under both
federal law and New York State law.
New York State Environmental Quality
Review Act ("SEQRA"), Environmental
Conservation Law §§8-0101 et seq.,
National Environmental Policy Act
(continued...)
Since environmental impacts are
a function of the increase in the
use of the airport, both opponents
and proponents of the project have
focused on the demand for flights to
and from the airport and the
capacity of the airport. For a
number of years the project sponsor,
Westchester County ("the County"),
and FAA took the position that vari-
ous contractual restraints would
limit the demand and capacity suffi-
ciently to prevent any significant
increase. In November 1988, as a
result of public comment the County
acknowledged that the contractual
3(...continued)
("NEPA"), 42 U.S.C. §§ 4321 et seg.,
the Regulations of the Council on
Environmental Quality (the "CEQ
Regs."), 40 C.F.R. Part 1500, and
Order 5050.4A.
restraints were insufficient. It
adopted a second analytical approach
and took the position that opera-
tional restraints, would effectively
limit demand and capacity at the
airport.* The agency invited com-
ments on this second approach.
Faced with the demonstration in
comments that operational restraints
wouid not be effective and that a
market analysis was necessary, FAA
adopted a third analytical approach.
The agency then performed a market
. Operational restraints are
physical and safety restraints on
the number and size of aircraft and
passengers that use the airport and
terminal. Contractual restraints
are contained in a set of agreements
and statements. These documents
included a "Stipulation and Order of
Partial Agreement and Dismissal," a
County Policy Statement, and a
"Terminal Capacity Agreement" dated
April 1, 1988.
|
analysis. The FAA did not allow
public comment on this’ third
approach. It reached its final
finding of no significant impact
based on this market analysis which
was not subject to public comment.
The market analysis was entitled
"Demand, Capacity and Operational
Analysis of Westchester Airport"
(the "October 1989 Analysis" or
"OA") (A-49-77), and attached to the
ROD and FONSI.
T ic's Involvement
Throughout the environmental
5
review process,’ petitioners with
° FAA's analysis and the
related public involvement included
a Master Plan for the project devel-
oped between 1978 and 1980; a Master
Plan Update (December 1986); an
(continued...)
h seineieiaditea iat eaeeatinatteeemenie
FAA's encouragement had participated
°(...continued)
October 1986 Draft Environmental
Assessment (Draft EA); a November
13, 1986 public hearing; a February
1987 EA; an August 1988 site specif-
ic Draft EA; comments by petitione-
rs' attorneys on this Draft EA; a
public hearing on the site specific
Draft EA on October 14, 1988; a
Final EA dated November 1988 (A-19);
comments on the Final EA dated
December, 1988; a Preliminary
Analysis ("PA") dated March 1989;
comments by petitioners and their
airport consultants on the PA (A-95-
116); the October 1989 Analysis made
known to the public November 30,
1989 (A-7-14); and the Record of
Decision (A-7-14) and the Finding of
No Significant Impact (A-15-45)
promulgated November 30, 1989. On
February 28, 1990, the New York
Department of Transportation
approved the Airport Layout Plan
("ALP"). (See generally, A-19-21).
By means of subtle
interpretations of NEPA and SEQRA,
the various federal draft and final
environmental assessments also
served as generic draft, and final
environmental impact statements
under the state law. They are
referred to herein by their federal
designations only.
10
actively in the project review. The
Draft and Final EA, for instance,
had discussed only contractual
restraints. Petitioners' comments
pointed out the limitations and
weaknesses of these restraints,
including reliance on a stipulation
which expired on April 30, 1990, and
on an agreement which expires on
January 1, 1995. As a result of
these comments the final site-spe-
cific EA of November 1988 addressed
operational restraints for tne first
time.
The December 1988 comments on
the Final EA described the signifi-
cant problem with the operational
restraints analysis, including the
increase of open space, which could
lead to more intensive use of the
1l
airport. The March 1989 PA, which
followed these comments, was a fore-
cast of operational restraints: the
"hourly passenger limit or worst
case scenario." (A-59-60.) The OA
in contrast, used a market forecast
as the basis for evaluating the
impacts of the project.
Relying on this market analy-
sis, FAA produced the ROD and FONSI
which concluded that the project
would not result in a significantly
greater use of the airport. These
determinations were made despite the
more than fourfold increase in the
size of the terminal and the provi-
sion of an indoor parking facility.
(A-13-14, 16-17.) (The existing
terminal building, a Quonset hut
structure, has a floor area of
12
10,000 square feet. At present
there is no indoor parking.)
The October 1989 Analysis
The market analysis appeared
for the first time in the October
1989 Analysis. Although FAA had
followed its regulations and allowed
public comment up to the time of the
issuance of the OA, and although
this public comment process had
revealed numerous flaws in FAA's
analysis of the project, FAA did not
allow any public comment on the OA.
The OA was based upon substantially
new facts and new assumptions, yet
came to the same conclusions as the
earlier flawed environmental docu-
ments.
This result disregarded the
13
fire code and other safety
provisions limiting the present
building to 480 passengers per
hours. (A-50, 63.) It assumed,
apparently, that those limits would
be generally violated to, reach the
680 passenger per hour limit. In
addition, the OA posited new "turn-
around times" (A-101-03, 115) anda
growth in emplanements from the
current 340,000 to 650,000 in the
year 2006 (A-57). It assumed that
passengers from the Westchester
County Airport would have the same
destinations as those from LaGuard-
ia. (A-56.)
Among the other critical ele-
ments of the OA that were not sub-
ject to public comment was its "For-
ecast of Expected Terminal Activi-
14
ty." (A-52-59.) That forecast con-
sisted of nine separate steps in-
cluding projections of annual enpla-
nements in the year 2006 and the use
of 1988 monthly, day-of-the-week,
and hourly relationships to recon-
struct a busy day in the peak month
of the year 2006. (A-53.)
This October 1989 Analysis,
without public comment, became the
basis for the principal finding of
the ROD and FONSI, that the project
would not appreciably increase use
of the airport. Two months later
when the ROD and FONSI were promul-
gated and released, the existence of
the OA became known to the public.
Public involvement had ended, howev-
er, with comments on the differently
based PA.
15
The Proceedings in the Second
Circuit
The petition to review the ROD
and FONSI was filed in the Second
Circuit on January 24, 1990 and the
petition to review the ALP Approval
was filed on March 19, 1990.
Petitioners argued that the FAA
had violated lawful procedures and
principles of fundamental fairness
by relying upon the facts and as-
sumptions developed after the Final
EA, including those developed by the
OA; and that it also violated the
requirements of State and local
review of the Project.
In addition they argued that,
since the impacts of the four-fold
increase in the terminal would be
significant, FAA acted arbitrarily
16
and capriciously in issuing the
FONSI and ROD; that FAA failed to
consider adequately the cumulative
impacts of the airport project and
an adjoining major United States
Postal Service project; that FAA
failed to consider the controversy
Surrounding the project; and that
the discussion of alternatives was
substantially insufficient.
Finally, petitioners asserted
that the issues before the court
were not ripe for review.
In its decision denying the
petitions for review the Second
Circuit first denied petitioners'
claim that the issues were not ripe
for review. (A-3.) With respect to
petitioners' claim that the post-
Final EA procedures followed by FAA,
17
particularly the principal reliance
upon the OA, violated lawful
procedures, the court held that the
procedures did not violate NEPA.
Acknowledging that "NEPA and the
regulations promulgated under it
encourage[d] public involvement" the
court held that FAA had done all
that NEPA required. (A-4) (emphasis
supplied). The decision did not
comment at all upon the claims by
petitioners that the major reliance
by FAA upon the OA violated "funda-
mental fairness" principles.
18
REASONS FOR GRANTING THE WRIT
POINT I
THE FAA PROCEDURES WITH
REGARD TO PUBLIC COMMENT
ON THE OCTOBER 1989
ANALYSIS VIOLATED
PRINCIPLES OF FUNDAMENTAL
FAIRNESS
A. Public Involvement is
Vital to Agency Process-
ing Under NEPA
Despite FAA's failure to circu-
late the October 1989 Analysis for
public comment, the Second Circuit
rejected petitioners' claim that FAA
violated NEPA.
While NEPA and the regulations
promulgated under it encourage
public involvement in the prep-
aration of environmental as-
sessments ... the FAA more than
complied with this requirement.
(A-4) (emphasis supplied) citing
Hanly v. Kleindienst ("Hanly"), 471
F.2d 823, 836 (2d Cir. 1972), cert.
denied, 412 U.S. 908 (1973).
19
Petitioners submit that the
Second Circuit erred here. Hanly
itself, decided early in the history
of NEPA, did much more than "encour-
age" public involvement. In Hanly
the court articulated the mandatory
nature of public. participation,
ruling that:
before a preliminary or thresh-
old determination of signifi-
cance is made the responsible
agency must give notice to the
public of the proposed major
federal action and an opportu-
nity to submit relevant facts
which might bear upon the agen-
cy's threshold decision.
471 F.2d at 836. See also Colony
Federal Savings & Loan Ass'n v.
Harris, 482 F. Supp. 296, 304
(W.D.Pa. 1980) (holding that "(a)n
opportunity for local citizens or
other interested parties to
participate in the preparation of
20
the environmental analysis is
mandatory under NEPA" (emphasis in
original)).
The parties do not dispute that
the numerous FAA actions concerning
the airport project constituted a
"major federal action". Nor do they
dispute that the FAA's FONSI consti-
tuted its "threshold decision". See
Hanly, 471 F.2d at 836. Rather, the
disputes have centered on the nature
and degree of the environmental
impacts and the opportunity for
public involvement.
B. Public Involvement Under
Order 5050.4A
"Public Involvement" is the
subject of §18 of Order 5050.4A,
which prescribes the FAA's "General
21
Requirements and Responsibilities."
Subsection "a." directs that:
Citizen involvement, where ap-
i , should be initiated
at the earliest practical time
and continued throughout the
development of the proposed
project in order to obtain mea-
. ful . *
(Emphasis supplied.) Subsection
"b." further provides that:
An effective opportunity to
comment at appropriate stages
in the decision making process
shall be provided to communi-
ties, citizen groups, and other
individuals affected by airport
proposals submitted to the FAA.
(Emphasis supplied.)
The phrase "throughout the
development of the proposed project"
includes the stage when the agency
determines whether "the action
choice will be an _ environmental
impact statement or a finding of no
significant impact...." Order
22
5050.4A § 51(a). Since the OA's new
market based analysis, provided the
facts and assumptions for the FONSI,
it was a vital stage in "the
development of the proposed
project." The absent peer review
would have furnished "meaningful
input." An “effective opportunity
to comment" was necessary, but
denied, at this climactic point.
FAA defends its procedures, and
the decision below implicitly adopts
that defense, by crediting itself
with the public involvement in hear-
ings and comments, and with acknowl-
edging its own errors. Petitioners
submit, however, that the public
involvement thus permitted and the
acknowledged importance of it only
highlight the fundamental unfairness
23
of cutting off comment at the cru-
cial OA stage.
In construing Order 5050.4A §
18(a), FAA erred in cutting off the
public involvement at the OA stage.
The agency violated general princi-
ples of fundamental fairness, par-
ticularly the principle that where
there is public involvement in the
NEPA process the public should have
available to it for comment all of
the significant data and information
upon which the decision making is to
be based.
C. Fundamental Fairness Through
Public Particpation
The rule of “fundamental fair-
ness," is found in Bowman Transpor-
tati Cc. 2, sas-Best
24
Freight System, Inc. ("Bowman"), 419
U.S. 281 #£(1974). This Court
recognized there that a party to an
administrative hearing is entitled
as a matter of constitutional due
process "to know the issues on which
decision will turn and to be
apprised of the factual material on
whi cision
so that he may rebut it." Id. at
288 n.4 (emphasis supplied). FAA
did not provide an opportunity to
rebut such factual material here.
Lower courts have also applied
the fundamental fairness principle
stated in Bowman to informal agency
adjudication. For example, the
Court of Appeals in National Wild-
life Federation v. Marsh ("NWF v.
Marsh"), stated that:
25
Even in an informal adjudicato-
ry setting, if the public is
not apprised of the rationale
behind a proposed decision, or
if the public is informed of
the rationale only after the
close of the comment and hear-
ing period, then the agency
cannot be said to have provided
a realistic opportunity for
public hearings or meaningful
comments.
568 F. Supp. 985, 993 (D.D.C. 1983)
(challenging the Army Corps of Engi-
neers' issuance of a permit for
construction and dredging in the
Chesapeake Bay where the Corps
impermissibly failed to "present for
public scrutiny the rationale and
pivotal data" underlying its
decision before the end of the
comment period).
NWF ev. Marsh relied on the
"admonition concerning the lack of
meaningful comment and hearing"
26
|
found in United States Lines, Inc.
Vv. Federal Maritime Commission
("U.S. Lines"), 584 F.2d 519 (D.C.
Cir. i978). NWF v. Marsh, 568 F.
Supp. at 93 n.14. The U.S. Lines
court observed that this principle
of fairness applied to informal rule
making. The court stated that
agencies may rely upon data in
their files in reaching their
decisions. But [the informal
rule making cases] do not hold
that an agency may do so with-
out informing the parties of
what data it has utilized.
Id. at 534 n.44 citing Moss v.
Federal Power Commission, 502 F.2d
461, 465 (D.C. Cir. 1974), rev'd in
part on other grounds, 424 U.S. 494
(1976) and Consumers Union of U.S.,
Inc. v. Consumer Product Safety
Commission, 491 F.2d 810, 812 (2d
Cir. 1974).
27
The principle of U.S. Lines was
reaffirmed: “even in an informal
adjudication parties have a right to
be informed of and comment on staff
positions." t U.S. Tanker
Ow s mmi e Vv. Lewis
("Independent U.S. Tanker"), 690
F.2d 908, 925 (D.C. Cir. 1982)
(involving informal adjudication and
rule making relating to construction
subsidies for shipbuilding by the
Maritime Administration). Of the
Federal Maritime Commission's fail-
ure to provide an opportunity to
comment on the report that was the
basis for the agency decision, the
court stated "[(ajll standards of
fairness and due process in
administrative law preclude such
behavior." Id.
28
Similarly, in National Wildlife
g
Federation v. Burford, 835 F.2d 305,
322-23 (D.C. Cir. 1987), the court
applied principles of public
participation to decisions involving
the revocation of land withdrawals
under the Federal Land Policy and
Management Act, 43 U.S.C. §§ 1701 et
seq. Like the FAA, the Bureau of
Land Management was required to
allow for public participation on
decisions affecting large-scale
programs for the sale of public
lands.
In Appalachian Mountain Club v.
Brinegar, 394 F. Supp. 105 (D.N.H.
1975) where a Final Environmental
Impact Statement ("EIS") included
traffic data on a proposed inter-
state highway which had been omitted
29
from the Draft EIS, principles of
fundamental fairness were applied
under NEPA. The court ruled the EIS
improper and enjoined construction.
It severely criticized the agency's
attempt to put the information in
the Final EIS and thus circumvent
the NEPA mandates respecting the
adequacy of the draft EIS:
[Tjhe first stage ... is the
vital stage, for it is here
that outside review can vitiate
‘objective errors or excessive
bias in an EIS.'
394 F. Supp. at 121 (citation omit-
ted). The court went on to point
out the dangers of including essen-
tial data in the Final EIS for the
first time:
There cannot be responsible
decision making when data ap-
pears in the final EIS without
being subject to the critical
aluation that occurs in the
30
draft stage. There are two
dangers that can occur when
information appears in the fi-
nal EIS for the first time: (1)
the ultimate decision-makers
will believe that there is no
controversy due to the lack of
critical comment; and (2) ob-
jective errors without being
red-flagged would go unno-
ticed....
Supplemental information, which
has not been processed in the
same manner as a draft EIS,
cannot resurrect a deficient
impact statement.
394 F. Supp. at 121-22 (emphasis
supplied) (citations and footnotes
omitted). See also Essex County
Preservation Ass'n v. Campbell, 399
F. Supp. 208, 215-16 (D. Mass.
1975), aff'd, 536 F.2d 956 (1st Cir.
1976); Natural Resources Defense
Council, Inc. v. Morton, 337 F.
Supp. 170 (D.D.C. 1972) (court
refused to dissolve preliminary
injunction enjoining the sale of
31
a
certain oil and gas leases where
adderdum prepared to remedy the
deficient Draft EIS had not been
subject to comment and review proce-
dures).
Last term this Court considered
the application of the principles of
fundamental fairness in Pension
Benefit Guaranty v. LTV Corp.,
("PBGC v. LTV"), U.8; , 110
S.Ct. 2668 (1990). This Court
addressed the question of what
procedural rights applied under the
Administrative Procedure Act, 5
U.S.C. §§ 551 et seq. ("APA"), in
the absence of applicable agency
regulations. No regulatory
provisions supported the procedural
rights described in Bowman. The
Court, following Vermont Yankee and
32
reversing the Second Circuit, ruled
that additional procedures, even any
required by principles of
fundamental fairness, could not be
imposed by the courts.® PBGC v. LTV
at 2680. The Court did not question
the validity of the fundamental
fairness principles found in Bowman
and elsewhere. Rather it found that
in the absence of agency regulations
it was not unlawful to fail to
provide these elements of
fundamental fairness.
Each of the cases discussed
above supports the conclusion that
. This Court apparently as-
sumed that even “extremely excep-
tional circumstances" standing
alone, would not justify judicial
interference in administrative pro-
ceedings although they would under
Vermont Yankee. Petitioners do not
pose that question.
33
the FAA violated principles of fun-
damental fairness when it barred the
public from commenting on the OA
given its critical role in the deci-
sion making process. Like the fac-
tual material referred to in Bowman,
like the staff report relied on in
Independent U.S. Tanker, like the
information withheld in U.S. Lines,
and like the transportation data
obscured in NWF v. Marsh, the Octo-
ber 1989 Analysis in this case con-
tained the pivotal market-based
review that should have been subject
to comment as a matter of fundamen-
tal fairness. Accordingly,
petitioners submit that FAA violated
Order 5050.4A § 18(a).
34
——
POINT II
IN THE ERA OF VERMONT YANKEE THE
STANDARDS OF CONSTRUCTION OF
ADMINISTRATIVE REGULATIONS REQUIRING
PUBLIC INVOLVEMENT IN INFORMAL
AGENCY ADJUDICATIONS SHOULD GIVE
WEIGHT TO PRINCIPLES OF FUNDAMENTAL
FAIRNESS
This Court has said in Vermont
Yankee and again in PBGC v. LTV that
unless the APA, agency regulations
or statutes, or constitutional due
process provide otherwise, courts
may not impose additional procedures
on agencies. 435 U.S. at 543; 110
S.Ct. at 2680. Here, the
regulations of FAA are ambiguous.
They can be read to require public
comments, or not, at the critical OA
stage. The Court here has the
opportunity to address the standards
that should be applied when
interpreting such agency
3S
regulations. A standard of
construction that favors’. public
involvement will further these
principles of fundamental fairness
and will avoid unnecessary questions
of constitutional due process.
The cases discussed above show
that courts have recognized and
discussed the importance of allowing
the public to know and comment on
the basis of agency decisions. This
Court should integrate such concepts
of fundamental fairness into the
standards for construing
regulations.
In the present case, FAA's
narrow interpretation of its
regulations erred because the agency
failed to account for fundamental
fairness principles. FAA did not
36
cares ———
banana
deem public involvement
"appropriate" at the critical OA
stages of "the development of the
proposed project." Order 5050.4A §
18(a). The question of how to
construe FAA's regulations governing
public participation is of wide
importance because the regulations
of most important agencies acting
under NEPA require public
involvement in their ever increasing
informal decision making.’
Among the agency regula-
tions requiring public involvement
in the NEPA process are: 7 C.F.R.
§3100.45 (Office of Environmental
Quality, U.S. Department of
Agriculture); 18 C.F.R. §§ 401.51,
401.58, 401.61 (Delaware River Basin
Commission); 33 C.F.R. §§ 230.11,
230.12, 230.19 (Army Corps of Engi-
neers); 40 C.F.R. §§ 6.400, 6.403,
1501.4(e) (2) (Environmental
Prote¢tion Agency) } 44 C.F.R.
§§16.8/fa) (5), §10.7(a), (c) (2),
(continued...)
37
The growth of informal adjudi-
cation increases the need for a
common law of procedures. Justice
Scalia, then Professor of Law at the
University of Chicago Law School,
described the cumulative effect of
the growth of informal
adjudications.
([B)y the mid-1970s vast numbers
of issues of the sort which in
1946 would have been resolved
in a formal adjudicatory
context before the agency, or
even in an adjudicatory ju-
dicial proceeding, were being
resolved in informal rule mak-
ing and informal adjudication.
Scalia at 377. Speaking further of
the importance of informal adjudica-
tion, Justice Scalia stated:
Since informal adjudication
undoubtedly constitutes the
7(...continued)
10.9(c) (Federal Emergency
Management Agency).
38
tier —
vast majority of agency action-
GS. it is quite simply
inconceivable that - confronted
by a total vacuum in the APA -
" w re) f
procedures in this area. Even
if the Supreme Court persists
in its Vermont Yankee abnega-
tion of such a power, it can
achieve the same result by sim-
ply finding a whole spectrum of
"due process" requirements for
less than an "“on-the-record"
hearing.
Scalia at 385 (emphasis supplied)
(footnote omitted) .°
One of the inherent defects in
the APA “is its failure to provide
apy minimum structured procedures
whatever for [the] entire [informal
adjudication] category of agency
activity." Scalia at 384-85.
The footnote cites 1 Davis
Administrative Law Treatise 610 (2d
Ed. 1978) and states that “Professor
’ Davis's guess of 90 percent is as
good as any."
39
Dati
Petitioners urge this Court to
address this defect by ruling on the
standards by which agency rules
requiring public involvement should
be construed. They urge the Court
to recognize that rules of
construction should move agencies
toward fundamental fairness.
The Second Circuit determined
that FAA did not violate Order 5050-
-4A § .18(a). It did so without
considering the fundamental unfair-
ness of FAA's barring of the public
from consideration of the OA, or
even from knowing of the OA's
existence until the decisions based
largely upon it were made. The
Second Circuit found it unnecessary
to consider Vermont Yankee and PBGC
Vv. LTV to determine their
40
applicability.’ Consideration is
necessary, however, unless it is
absolutely clear 1) that the FAA
regulation does not require
involvement of the public in the OA
and the decision making based upon
it, and 2) principles of fundamental
fairness are irrelevant to the
construction of a regulation
providing for public involvement.
Petitioners submit that neither of
In its Brief in the Second
Circuit FAA cited Vermont Yankee for
the proposition that, "the only
procedural requirements imposed by
NEPA are those stated in the plain
language of the Act." It also, ina
letter to the Second Circuit follow-
ing this Court's decision in PBGC v.
LTV, cited that case as having "re-
jected a claim that the agency pro-
cess was flawed for failure to in-
clude procedures not called for by
the Due Process Clause, the Adminis-
trative Procedure Act or the specif-
ic provisions of an agency's opening
statement."
41
these propositions is clear.
In this case of informal deci-
sion making, with procedures based
on ambiguous regulations of the FAA,
the Court has the opportunity to
address the question of how agency
regulations requiring public
involvement should be interpreted.
The importance of proper con-
struction and implementation of the
plethora of public involvement regu-
lations, particularly in fundamental
fairness cases, is heightened by
recent rulings that procedural due
process does not require trial-type
procedures such as examination and
cross-examination in cases of infor-
mal adjudication. Buttrey v. United
States, 690 F.2d 1170 (5th Cir.
1982), cert. denied, 461 U.S. 927
42
(1983) (holding developer not
entitled to trial-type hearing on
application to the Corps of
Engineers for permit to discharge
dredged materials). Such cases,
underscore the important roles that
agency procedures for public in-
volvement play in achieving funda-
mental fairness. Since Vermont
Yankee and PBGC v. LTV restrain
courts from imposing additional
procedures, fair construction of
ambiguous agency procedures is
particularly important.
FAA unfairly closed off the
public from involvement in the
critical OA aspects of "the
development of the [airport] pro-
ject." Order 5050.4A § 18(a). This
Court should consider the question
43
of the standards by which this
agency's public involvement
regulations should be construed
under Vermont Yankee and PBGC v. LTV
in order to effect fundamental
fairness.
Justice Scalia's opinion that
the development of a “common law of
procedures in [the] area" of infor-
mal adjudication seemed inevitable
is particularly significant with
respect to the rights of the public
under most environmental laws and
regulations. Most agency environ-
mental decision making is by infor-
mal adjudication. Often citizen
representatives become parties to
such proceedings through grants of
44
standing both in case law’? and in
statute.''’ The rights of the pub-
lic in such proceedings are as im-
portant as those of private parties
in most trial-type proceedings and
the principal facts in issue - e.g.,
the effect upon airport use of a
terminal quadrupled in size - are as
worthy of procedures which permit
rebuttal of important facts as those
in most trial-type proceedings.
Some "'common law' of procedures"’@
should be developed. MThis case is
an apt one for examination into and
declaration of one small but
10 See, e.g., United States
v. SCRAP, 412 U.S. 669 (1973).
" See, e.g., the citizens
* io
se
suit provisions of the Clean Air
Act, 42 U.S.C. §7604.
te Scalia at 385.
45
important aspect of that common law.
CONCLUSION
For the foregoing reasons this
Petition for the issuance of a writ
of certiorari should be grantec.
Respectfully submitted,
DAVID SIVE
460 Park Avenue
New York, New York 10022
Counsel for Petitioners
SIVE, PAGET & RIESEL, P.C.
Attorneys for Petitioners
Richard M. Hall
Lydia B. Duff
On the Petition
46
ALP
APA
CEQ
EA
EIS
EPA
FAA
FEIS
FEMA
FONSI
NEPA
OA
PA
ROD
SEIS
SEQRA
USDA
GLOSSARY OF ACRONYMS
Airport Layout Plan
Administrative Procedure
Act
Council on Environmental
Quality
Environmental Assessment
Environmental Impact
Statement
Environmental Protection
Agency
Federal Aviation
Administration
Final Environmental Impact
Statement
Federal Emergency
Management Analysis
Finding of No Significant
Impact
National Environmental
Policy Act
October 1989 Analysis -
Demand, Capacity and
Operational Analysis of
Westchester Airport
Preliminary Analysis
Record of Decision
Supplemental Environmental
Impact Statement
State Environmental
Quality Review Act
United States Department
of Agriculture
47
APPENDIX
Al
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
LE ——
—>
Nos. 1513, 1599—August Term, 1989
(Argued June 13, 1990 Decided June 25, 1990)
Docket Nos. 90-4016, 90-4036
-
TOWN OF RYE, NEW YORK, TOWN OF NORTH CASTLE,
NEW YORK, CITY OF RYE, NEW YORK, TOWN/
VILLAGE OF HARRISON, NEW YORK, TOWN OF
NEW CASTLE, NEW YORK, TOWN OF MT. PLEAS-
ANT, NEW YORK, TOWN OF GREENWICH, CON-
NECTICUT, AIR CONSERVATION TRUST, INC.,
AIRPORT CONCERN TEAM, INC., and WESTCHES-
TER COALITION TO LIMIT AIRPORT EXPANSION,
INC., Petitioners,
—_—Vo—
SAMUEL K. SKINNER, Secretary of Transportation,
JAMES B. BUSEY, Administrator, Federal Aviation
Administration, THE FEDERAL AVIATION ADMINIS-
TRATION, DANIEL J. PETERSON, Regional Adminis-
trator, Federal Aviation Administration, Eastern
Region, WILLIAM HANDEL, Manager, Airports
Division, Federal Aviation Administration, COUNTY
OF WESTCHESTER, NEW YORK, ANDREW P.
O’ROURKE, County Executive for the County of
Westchester, New York, WESTCHESTER COUNTY
A-2
BOARD OF LEGISLATORS and WESTCHESTER
COUNTY DEPARTMENT OF TRANSPORTATION,
Respondents.
Before:
MESKILL, PIERCE and PRATT,
Circuit Judges.
oe
Petitions for review pursuant to 49 U.S.C. § 1486 of
two orders of the Federal Aviation Administration that
approved various proposed projects at the Westchester
County Airport.
Petitions denied.
-
DAVID SIVE, New York City (Richard M.
Hall, Andrew J. Gershon, Sive, Paget &
Riesel, New York City, of counsel), for
Petitioners.
VICKI L. PLAUT, Department of Justice,
Environment and Natural Resources
_ Division, Washington, D.C. (Richard B.
Stewart, Peter R. Steenland, Jr.,
Department of Justice, Environment and
Natural Resources Division, Washing-
ton, D.C., Kevin M. Blake, Federal Avi-
ation Administration, Jamaica, NY, of
counsel), for Federal Respondents.
A-3
CAROL L. VAN Scoyoc, Assistant County
Attorney for Westchester County, White
Plains, NY (Marilyn J. Slaatten, West-
. chester County Attorney, Kenneth E.
Powell, Deputy County Attorney for
Westchester County, White Plains, NY,
of counsel), for Westchester County
Respondents.
~
Per Curiam:
These are petitions for review pursuant to 49 U.S.C.
§ 1486 wf two orders of the Federal Aviation Adminis-
tration (FAA), which (1) issued a Record of Decision
(ROD) and a Finding of No Significant Impact
(FONSI), thereby approving various proposed projects
at the Westchester County Airport (Airport), and (2)
approved the Airport Layout Pian, a map reflecting the
- proposed projects.
The petitions for review are denied.
We do not agree with petitioners that the FAA’s
actions are not ripe for review because funding for the
Airport project is uncertain. Whether an agency action
is ripe for review requires an evaluation of ‘‘both the
fitness of the issues for judicial decision and the hard-
ship to the parties of withholding court consideration.’’
Abbott Laboratories v. Gardner, 387 U.S. 136, 149
(1967). This case is fit for resolution because there is
nothing else for the FAA to do in evaluating the envi-
ronmental impact of the Airport project. Funding for
the project is a completely separate question. See Town-
ship of Parsippany-Troy Hills v. Costle, 503 F.Supp.
ee
A-4
314, 319 (D.N.J. 1979), aff’d, 639 F.2d 776 (3d Cir.
1980). Further, withholding a decision at this point
would create a hardship for Westchester County because
uncertainty surrounding the fate of the project may
affect the County’s ability to secure funding.
Petitioners claim that the FAA violated the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4331 ef
seq., by failing to circulate for public comment its inde-
pendent analysis of the likelihood that a new terminal
will result in increased Airport use. This claim is without
merit. While NEPA and the regulations promulgated
under it encourage public involvement in the preparation
of environmental assessments, see, e.g., 40 C.F.R.
§ 1501.4 (1989); FAA Order 5050.4A § 18(a); see also
Hanly v. Kleindienst, 471 F.2d 823, 836 (2d Cir. 1972),
cert. denied, 412 U.S. 908 (1973), the FAA more than
complied with this requirement. The FAA and West-
chester County conducted public hearings and received
written comments on every draft environmental assess-
ment; the FAA circulated for comment its Preliminary
Analysis of the environmental assessment; and the
FAA’s independent analysis itself was done in response
to comments of petitioners. NEPA requires no more.
Petitioners’ contention that the required state and
local review process never took place is similarly unper-
suasive. The record indicates that Westchester County
sent the draft environmental assessment/generic environ-
mental impact statement to the New York State Plan-
ning and Development Clearinghouse, which is New
York’s ‘‘single point of contact.’’ See FAA Order
5050.4A § 48. In addition, it is clear that local govern-
ments in the area of the Airport and concerned citizens
A-5
were given several opportunities to review and comment
on the project.
Petitioners’: challenges to the merits of the FAA’s
decision also are unavailing. We review the FAA’s deci-
sion that a full environmental impact statement is not
required for the Airport project under the arbitrary or
Capricious standard of 5 U.S.C. § 706. See Hanly, 471
F.2d at 828-30. In practical terms, our task is to deter-
mine whether the FAA has taken a ‘“‘hard look”’ at the
potential environmental consequences and has convinc-
ingly documented its decision. Town of Orangetown v.
Gorsuch, 718 F.2d 29, 34-35 (2d Cir. 1983), cert.
denied, 465 U.S. 1099 (1984). We are satisfied that the
FAA has done so.
Petitioners’ argument that the FAA acted arbitrarily
and capriciously in this case is entirely without merit.
The FAA gave adequate consideration to the cumulative
impact of the Airport project, the public controversy
surrounding it and available alternatives. See 40 C.F.R.
§ 1508.7 (1989); id. § 1508.27(4); FAA Order 5050.4A
§ 47. Although the FAA declined in its FONSI to
express any view on the cumulative impact of the Postal
Service facility that may be built on Airport land, the
FAA examined this facility in some detail in its Prelimi-
nary Assessment. That the FAA considered public con-
troversy is obvious: the Airport project is categorically
excluded from environmental review, see FAA Order
5050.4A §§ 20(b), 23(a)(4), but the FAA decided to
prepare an environmental assessment in view of the
community opposition to the project. The FAA’s con-
sideration of alternatives in the environmental
assessment/environmental impact statement and in the
ROD and FONSI is adequate given its valid finding of
A-6
no significant impact. See City of New York v. United
States Dep’t of Transp., 715 F.2d 732, 744 (2d Cir.
1983), cert. denied, 465 U.S. 1055 (1984).
The petitions for review are denied.
A-7
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
EASTERN REGION
RECORD OF DECISION
NEW PASSENGER TERMINAL
ASSOCIATED DEVELOPMENT AND OTHER
AIRFIELD IMPROVEMENTS
WESTCHESTER COUNTY AIRPORT
WHITE PLAINS, NEW YORK
The Proposed Action is to increase the safety, efficiency and
utility of Westchester County Airport (HPN) by providing users
with a new passenger terminal; associated roadways and park-
ing; a new parallel taxiway with additional connections, exits
and holding aprons; new areas for fixed based operators; new
corporate hangars and offices and associated roadways and park-
ing; an approach lighting system for Runway 34; and other
development.
It is clear from data and correspondence that has evolved dur-
ing the environmental review process that a new and larger
passenger terminal is needed at HPN. The overcrowding and
occupant safety and security aspects of the old terminal war-
rant a new terminal at this time.
The Federal Aviation Administration (FAA) recognizes the
community concerns that a larger terminal and associated
development will cause HPN to expand into a major air carrier
facility, a “LaGuardia North”. HPN, however, has limited
markets, and therefore limited demand, by virtue of its limited
runway length. The development of these markets is also limited
by the closeness of LaGuardia Airport, about 20 miles south,
which has better and more frequent commercial service. For
airspace reasons, its closeness also causes it to suffer delays
equivalent te the NY metropolitan airports in adverse weather
conditions. The FAA's independent forecast of activity (attached)
indicates that HPN will remain predominantly a General Avia-
tion airport with limited commercial service operations. The
existing physical constraints to accommodation of forecast
A-8
commercial service demand such as the existing terminal
building, ramp space and aircraft parking would affect demand
accommodation to a limited degree because some local residents
who would choose the airport over LaGuardia would be turned
away by the uncomfortable and crowded terminal. However,
this would be a very small number of passengers and would have
a minimal effect on the total number of passengers or number
of operations because the demand is such that it can be accom-
modated with existing facilities by shifting some demand to ad-
jacent hours. Therefore, the bulk of the demand is expected to
be accommodated with or without the proposed improvements.
To further respond to community concern relating to ex-
panded airline activity at HPN, FAA is requiring that any pro-
posed future airport action that has the potential to increase
demand or to change demand accommodation such as:
longer/stronger runways; additional aircraft gate positions; in-
creased terminal ramp sirength and capacity; or a deviation from
FAA dimensional standards to allow for larger aircraft, will be
subject to appropriate environmental analysis under NEPA prior
to FAA approval. The FAA has included a condition of approval
requiring the County to obtain FAA approval in the event they
intend to pursue any of these types of actions.
Commentors expressed concern that the proposed develop-
ment will increase the capacity of the airport, which is contrary
to existing airport policy. FAA recognizes that some minor
theoretical capacity increases are unavoidable by certain of the
Proposed Action items. However, the majority of them have
minimal relation to airport capacity in terms of increasing the
total number of annual operations. Overall, the items improve
the efficiency of operations thereby reducing on-airport delays
and the impacts associated with such delays.
There are a number of different elements of Federal action
presented for a decision by this terminal development and other
airfield improvement projects. These include actions which will
increase the efficiency of air traffic operations and improve safety
of aircraft operating at Westchester County Airport. For
example, the proposed taxiways and holding aprons will decrease
= AE I Fea ot 19
A-9
Air Traffic workload and delays and the perimeter road will
enhance safety. The control of parcels of land in and around
the airport will allow for sight clearance from the tower and
will increase safety. The Approach Lighting System would im-
prove the operational reliability of aircraft during approach and
landing operations and would aid controllers in the performance
of their duties by reducing arriving aircraft go-arounds and/or
diversions to other airports during low visibility weather con-
ditions. The larger terminal will eliminate overcrowding and
enhance airport security. This action also constitutes a decision
which allows future approval of any grant funds which may be
provided to the Sponsor.
The final environmental documents, as supplemented by FAA’s
independent forecast report dated October 1, 1989, satisfies the
requirements of the National Environmental Policy Act (NEPA)
of 1969, the Airport and Airway Improvement Act, as amended,
and FAA Orders 1050.1D and 5050.4A.
While some segments of the Westchester/Putnam/ Fairfield ser-
vice area have indicated support for this development project,
other portions of the area have raised strong objections. There
is firm opposition to this development project by some local
residents and municipalities that are currently impacted by air-
craft noise or simply oppose expansion.
The FAA is fully aware of the presence of local opposition
to this project. The organizations and individuals involved have
presented their views with respect to this proposed project, and
their recommendations with respect to alternatives. Of prime
concern is terminal size and its affect on future airport activ-
ity. In response to this controversy, this entire project, which
includes items normally categorically excluded from the require-
ment for formal environmental assessment, was subjected to in-
tense review including several revisions to the environmental
document, extensive internal review and distribution of a
preliminary FAA evaluation report. These are steps not
associated with items generally categorically excluded or even
with the processing of a Finding of No Significant Impact.
A-10
FAA's independent forecast provides a reasonable basis for
estimating conditions both with and without the Proposed Ac-
tion. A traveler’s decision to use a particular airport is affected
principally by flight availability to a final destination and return
flights, and only to a small degree on conditions in the terminal
area. As such, it is not expected that air travel demand at HPN
will vary greatly with or without the proposed development.
This is consistent with the purpose of the Proposed Action, which
is to improve the level of service and the safe and comfortable
accommodation of passenger activity in the terminal, and to
better integrate airside and landside activity at HPN rather than
to generate increased air passenger demand at HPN.
While the FAA is not in a position to contro! or direct the
actions and decisions of the Sponsor, the FAA does have the abili-
ty to withhold project approval and associated Federal funds.
It was from this perspective that the FAA conducted an indepen-
dent analysis of forecast demand and operational needs at HPN
in order to evaluate and compare the potential impacts and to
discern whether there was an alternative so clearly and une-
quivocally superior to that proposed by the Sponsor or whether
the Sponsor’s proposal would cause impacts so severe as to war-
rant FAA action to disapprove and withhold federal funds for
the project proposed by the Sponsor. In such circumstances, the
FAA would try to influence the Sponsor to accept any alternative
shown to be so clearly superior to its proposal.
The facts do not warrant such actions by the FAA. The FAA
accepts and supports the alternative preferred by the Sponsor,
the Proposed Action. As noted, the Proposed Action develop-
ment items will increase the safety and efficiency of passenger
and aircraft movements at Westchester County Airport and will
not cause any significant environmental impacts to the surround-
ing area as evident from the FAA’s Finding of No Significant
Impact.
FAA recognizes its environmental responsibility under the
NEPA, CEQ regulations, and its own directives. The FAA also
has the responsibility to enhance, develop and improve the safety,
A-ll
efficiency, and utility of the national air transportation system,
including the airport development needed to achieve these goals.
The FAA actions involved in the implementation of the airport
sponsor's development plan include the following:
nph ed ahaa ha NS egal?
A. The FAA must make a determination under 14 CFR Part
157 [(49 U.S.C. 1354(a)] as to whether or not it objects
to the Proposed Action items of development from an
airspace perspective, based upon aeronautical studies.
abet a i one
>)
Pursuant to 49 U.S.C. 1348(b), the FAA must, in support
of the above described airspace actions, continue to
operate a wide range of existing air navigation facilities,
to replace an existing radar facility and to install an ap-
proach lighting system.
C. Also important for this project to proceed, will be an FAA
decision to provide financial support for eligible airport
development projects, through the Federal grant-in-aid
program (49 U.S.C. App. 2201 et. seq.).
D. Other agency decisions necessary for this project to pro-
ceed to completion, which involve the FAA’s Airports pro-
gram, include airport certification (see 49 U.S.C. 1432,
14 CFR Part 139), airport layout plan approval (see Air-
port and Airway Improvement Act 79, 49 U.S.C. 2210(15),
and environmental approval (see 42 U.S.C. 4321 et. seq.
and 40 CFT 1500 et. seq.).
Recognizing these responsibilities, we have carefully con-
sidered these objectives in relation to aeronautical and en-
vironmental factors at Westchester County Airport and utilized
the environmental process to make a more informed decision.
(See attached Memoranda from the affected FAA operating divi-
) sions, which become part of this Decision including all required
mitigation measures contained therein.)
Having carefully considered the aviation safety and opera-
tional objectives of the proposed project, as well as being prop-
erly advised as to the anticipated environmental impacts of the
1
1 (ay
A-12
proposal, under the authority delegated to me by the Ad-
ministrator of the FAA, I find that the project is reasonably sup-
ported, and I, therefore, direct that action be taken to carry
out the agency actions noted above.
/s/ Daniel J. Peterson November 30, 1989
Daniel J. Peterson Date
Regional Administrator
These decisions, including any subsequent actions approving
an Airport Layout Plan and/or a grant for Federal Funds to the
County of Westchester, are taken pursuant to 49 U.S.C. 1301
et. seq. and 49 U.S.C. App. 2201] et. seq., and constitute orders
of the Administrator which are subject to review by the courts
of appeals of the United States in accordance with the provi-
sions of Section 1006 of the Federal Aviation Act of 1958, as
amended, 49 U.S.C. 1486.
| A-l3
WESTCHESTER COUNTY AIRPORT (HPN)
The following 14 major facilities proposed for the airport are
described here and are located by number on Figure S.1.
1. A new passenger terminal at the general location of the
existing terminal building.
2. Relocated access roadways and parking for the new ter-
minal, and reconstruction of the Rye Lake Road/Airport
Access Road intersection.
3. An area at the North end of the airport reserved for
highway or parking purposes.
4. Anew automobile service station at Airport Access Road
and New King Street, replacing the existing service station
near the entrance of the airport parking lot
5. Anew parallel taxiway on the west side of Runway 16-34,
additional taxiway connections and exit taxiways, and ad-
ditional aircraft holding aprons near the ends of runways.
6. Development of new areas for fixed base operators (FBO’s),
primarily to serve light general aviation aircraft.
7. New corporate hangars and offices at two locations on the
airport, with access roads and automobile parking.
8. Extension of the aircraft parking apron in front of Hangar
E, and aprons for the new corporate hangars.
9. An additional engine maintenance runup pad near the
center of the airport.
10. A heated garage for airport maintenance vehicles, approx-
imately 10,000 sq. ft.
ll.
12.
13.
14.
A-14
A new Crash-Fire-Rescue (CFR) training facility at the
location of the existing training facility, near the airport
maintenance garage.
An approach lighting system for Runway 34.
An airport perimeter road.
Control of parcels of land adjacent to the airport for run-
way end clear zones, approach lighting, sight clearance
from the tower, and storm water runoff retention.
- eV inhi ip RL LOS ae csi REGION. 0
A-15
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FINDING OF NO SIGNIFICANT IMPACT
LOCATION
Westchester County Airport (HPN)
White Plains, New York
PROPOSED FEDERAL ACTION
Federal Aviation Administration (FAA) actions involved in the
implementation of the airport sponsor's development plan in-
clude the following:
A.
The FAA must make a determination under 14 CFR Part
157 [(49 U.S.C. 1354(a)] as to whether or not it objects
to the Proposed Action items of development from an
airspace perspective, based upon aeronautical studies.
Pursuant to 49 U.S.C. 1348(b), the FAA must, in support
of the above described airspace actions, continue to
operate a wide range of existing air navigation facilities,
to replace an existing radar facility and to install an ap-
proach lighting system.
. Also important for this project to proceed, will be an FAA
decision to provide financial support for eligible airport
development projects, through the Federal grant-in-aid
program (49 U.S.C. App. 2201 et. seq.).
. Other agency decisions necessary for this project to pro-
ceed to completion, which involve the FAA's Airports pro-
gram, include airport certification (see 49 U.S.C. 1432,
14 CFR Part 139), airport layout plan approval (see 49
U.S.C. 2210(a) (15), and environmental approval (see 42
U.S.C. 4321 et. seq. and 40 CFT 1500 et. seq.).
A-16
The Sponsor, the Westchester County Department of Public
Works, has proposed the following fourteen (14) items of develop-
ment (see attached numbered item drawing) herein referred to
as the Proposed Action items:
1. A new passenger terminal at the general location of the ex-
isting terminal building.
2. Relocated access roadways and parking for the new ter-
minal, and reconstruction of the Rye Lake Road/Airport Ac-
cess Road intersection.
3. An area at the North end of the airport reserved for highway
or parking purposes.
4. A new automobile service station at Airport Access Road
and New King Street, replacing the existing service station
near the entrance of the airport parking lot
5. A new parallel taxiway on the west side of Runway 16-34,
additional taxiway connections and exit taxiways, and ad-
ditional aircraft holding aprons near the ends of runways.
6. Development of new areas for fixed base operators (FBO’s),
primarily to serve light general aviation aircraft.
7. New corporate hangars and offices at two locations on the
airport, with access roads and automobile parking.
8. Extension of the aircraft parking apron in front of Hangar
E, and aprons for the new corporate hangars.
9. An additional engine maintenance runup pad near the
center of the airport.
10. A heated garage for airport maintenance vehicles, approx-
imately 10,000 sq. ft.
ll. A new Crash-Fire-Rescue (CFR) training facility at the loca-
tion of the existing training facility, near the airport
maintenance garage.
ee
A-17
12. An approach lighting system for Runway 34.
13. An airport perimeter road.
14. Control of parcels of land adjacent to the airport for run-
way end clear zones, approach lighting, sight clearance from
the tower, and storm water runoff retention.
PURPOSE AND NEED
The Westchester County Department of Public Works, as
Sponsor, desires to provide facility modifications and moder-
nization to improve safety, increase efficiency, upgrade facilities
or provide better conditions for airport users, tenants, passengers
and neighbors.
The Airport’s passenger terminal, dating from the 1940's, serv-
ing air carriers, commuter airlines and transient general avia-
tion, is considered obsolete in design and inadequate in size. It
has a total floor area of about 10,000 sq. ft. and its facilities
are severely crowded during several hours of an average day.
Public parking near the terminal is available for approxi-
mately 700 cars, but these parkitig areas also serve corporate
and FBO hangars. Like the terminal, the parking facilities are
routinely overcrowded and promote illegal parking.
Former Runway 5-23 is now used as a taxiway. Its center sec-
tion has been narrowed and repaved. The provision of additional
parallel taxiways and connections would improve safety margins
and increase the efficiency of the existing rumway system. An
aircraft holding apron now exists at the Runway 16 end, but
additional holding aprons are needed to serve the other run-
ways. Aircraft holding aprons are needed to provide: an area,
clear of taxiing traffic, for aircraft to stand while the “before-
takeoff-checklist” review is performed; to await final aii traffic
control clearance, and to permit those airplanes which have
clearance to move to the runway takeoff position.
Development of new areas for general aviation hangars and
FBO facilities are needed to accommodate existing and projected
A-18
general aviation activity. The general aviation facilities currently
include no individual hangars foi privately-owned aircraft. The
FBO’s serving general aviation are housed in temporary spaces
or in dilapidated buildings. Some of the apron areas used for
aircraft parking have broken pavement which could cause
damage to aircraft; other aircraft are parked on the grass or dirt.
Many private pilots and their passengers are required to walk
long distances between their automobiles and their parked air-
craft, while carrying luggage or other items. There is not enough
apron space and service facilities for transient general aviation
aircraft.
The proposed new corporate hangars are intended to accom-
modate aircraft currently based at the airport. They are need-
ed to relieve overcrowding at existing corporate facilities and
at the FBO’s serving corporte aircraft. They would permit the
indoor storage of costly aircraft and equipment that must now
be kept outdoors, exposed to the weather.
Two areas for aircraft maintenance run-ups are currently pro-
vided on the airport, along Taxiway “T”. However, since air-
craft using the areas need to be pointed into the wind while
being run up, only one of the areas is usable at many times.
Demand for the run-up areas has shown that on many occa-
sions two pads are needed at the same time. An additional run-
up area, is recommended on the taxiway between the midpoint
of Runway 16-34 and Runway 11-29.
The approach lighting system is an integra! part of the in-
strument landing system now serving Runway 34 and will pro-
vide more positive control and enhance the availability of this
runway to users.
A new CFR training facility is planned at the location of the
existing training facility, near the airport maintenance garage.
The new facility will be designed to minimize adverse en-
vironmental impacts such as runoff or groundwater contamina-
tion by fuel or other pollutants.
The Airport lacks a complete perimeter road system. Presently,
service vehicles must cross active runways to reach sections of
A-19
the airport. Crossings of an active runway is considered an un-
necessary hazard.
There are areas beyond the present airport boundaries where
it is recommended that the airport obtain control through fee
simple purchase or easements. These include clear zones off the
ends of Runways 29 and 34, and areas an the south side of the
airport needed for sight clearance and water runoff retention.
BACKGROUND
An Environmental Assessment (EA) and Generic Environmen-
tal Impact Statement (GEIS) was prepared for the Westchester
County Department of Public Works in February 1987, relating
to the fourteen proposed action items as recommended in the
Airport Master Plan Report. The EA was prepared under Federal
guidelines and the GEIS under New York State Environmental
Quality Review Act (SEQRA) guidelines.
In response to comments on the February 1987, EA/GEIS and
in order to provide more specific information concerning
development of the Terminal, a combined Draft EA under
Federal guidelines and Draft EIS under State guidelines was
prepared in August 1988. This August 1988 Draft EA/EIS con-
tained more specific information on proposed action items
Numbers | and 2 (a new passenger terminal building; associated
parking structure and facilities; relocated access roadways; rental
car facilities). Collectively, these proposals were called the Ter-
minal Facilities Modernization Project by the sponsor. This
August 1988 Draft EA/EIS supplements the February 1987,
EA/GEIS and should be reviewed in conjunction with it.
In November 1988, three (3) additional volumes of en-
vironmental data were prepared for the proposed action, each
also supplementing the February 1987 hA/GEIS. Volume I in-
cludes revised material to Chapters I thru 5 in the Draft
EA/GEIS, along with new Appendices A thru F. Volume II in-
cludes additional material, including a description of the public
hearing on the project (Chapter 6) and responses to comments
submitted on the Draft EA/GEIS (Chapter 7). Volume III
A-20
contains copies of the written comments submitted on the Draft
EA/GEIS (Appendix G) and a copy of the Affidavit of Publica-
tion (Appendix H).
Hence, there are five (5) volumes of data comprising the
Westchester County Airport EA for the proposed action.
In response to expressed concerns of commentors and Federal
Aviation Administration (FAA) inquiry, Volume II of the
November 88 EA addressed the issue of what could happen if
the Terminal Capacity Agreement were not in effect and if the
County did not avail itself of its right to limit the capacity of
the Terminal to 480 passengers per hour. The County provided
a “worst case” analysis which produced peak hour figures of:
680 passengers; 4 air carrier and 8 commuter operations with
] air carrier utilization per hour per gate and 2 commuter uses
per hour per gate. The assumption that peak usage patterns
would continue uniformly throughout the year on a 365 day
basis produced total annual figures of: 2,074,660 passengers.
16,060 air carrier operations, and 41,680 commuter operations.
This analysis was not intended to be a forecast of demand, but
rather a reactive response to outside concerns (It is noted that
the EA/GEIS contains, from the HPN Master Plan Update, the
forecasts of airline passengers and aviation activity assuming
that the Stipulation would remain in effect throughout the
forecast period). Using the ramp parking constraint figures (680
pax/hr., etc.) noise (Ldn) contour areas were developed with and
without the Terminal Capacity Agreement in effect for the Year
2006 and with the normal transition of quieter Stage 3 aircraft.
As a result of this information, the FAA requested the County
to conduct a detailed grid point analysis in order to evaluate
the degree of impact of such increases in noise over the surround-
ing area. The requested data was presented to the FAA in late
February 1989.
On March 28, 1989, the FAA prepared a Preliminary Analysis
of the Westchester County Environmental Assessment and
provided the opportunity for public comment before an FAA
environmental decision was to be made. The opportunity for
at Sa Oe ge el ae aan
A-21
comment was provided as an extra step in the environmental
decisionmak ng process because the FAA was aware of the con-
siderable local opposition to the project. The FAA Preliminary
Analysis utilized the 680 passenger per hour figures with the
one-hour and one-half hour gate turnaround times for air car-
rier and commuter aircraft, respectively. It also assumed that
the existing terminal could accommodate the 680 passengers per
hour and as such there was little difference in potential impacts
when comparing the existing terminal under the “No Build”
scenario with the new terminal under the “Build” scenario in
the Year 2006.
Numerous letters were received commenting on the FAA’s
Preliminary Analysis. Several issues were presented by the com-
mentors taking exception to the assumptions made in areas such
as turnaround times, maximum number of passengers to be ex-
pected through the building, size of building, size of aircraft
parking ramp and forecast of activity. FAA carefully reviewed
each comment and concluded that additional evaluation was
warranted. Such evaluation and conclusions are incorporated
into this Finding.
BASIS OF ANALYSIS
The EA includes extensive discussion of various stipulations,
agreements and policies affecting airport use and development.
The Stipulation of Settlement in the Midway Case and the
published County policy both suppress airport use and develop-
ment. The County maintains that, as a result of these constraints,
there is a finite limit to the number of annual aircraft opera-
tions that could be accommodated at the airport. They also note
that there is a resulting limit on the number of aircraft as well
as a limit in the type and size of aircraft that could utilize the
airport.
The Midway Case and later Terminal Capacity Agreement
maintain that the capacity of the terminal (existing and new)
will be 480 passengers per hour. It has been the County’s posi-
tion that it is neither appropriate nor realistic to make forecasts
which ignore the 480 passenger per hour passenger capacity limit
A-22
on either terminal usage since there is no provision in the new
Terminal Capacity Agreement for terminating the agreement
prior to the end of the forecast period used in the environmen-
tal studies.
The FAA concurs that the 480 passenger per hour limit must
be enforced for the existing terminal to comply with fire code
and safety to occupants rules and regulations. This was primarily
the basis upon which the 480 number was developed. Note that
the 480 per hour is not an actual instantaneous building oc-
cupancy, but rather a rate of flow that results in a building oc-
cupancy that would be within the allowable fire code occupancy
limit. Hence, the so-called “No-Build” scenario cannot and must
not consider a terminal capacity of more than 480 passengers
per hour.
The proposed new terminal, being of larger size, will have
the potential to accommodate more occupants per hour, assum-
ing, of course, that the existisg Terminal Capacity Agreement
does not remain in effect for whatever reason. It is noted that
a prime reason for FAA’s request to the County to conduct an
analysis considering potential impacts under an “unconstrained”
scenario was that the FAA was not a signatory to this agree-
ment and its limits. Kecognizing that expiration of a terminal |
capacity limit is a possibility and that the new larger terminal
could accommodate more passengers than the smaller existing
building, the FAA has re-evaluated its initial assumption and
concluded that the No Build and Build scenarios will not be
the same during peak periods. Therefore, scenarios depicting ,
accommodation of the potential passenger demand with and
without the new terminal were needed. For purposes of this
Finding, the existing terminal building will be restricted by fire
code to a building occupancy of 480 passengers per hour and
the proposed new terminal, although intended to be restricted
to 480 passengers per hour by the County Agivements, will be
analyzed using a demand forecast of passengers and operations
and the ramp and new terminal building as constraints. The
FAA has independently conducted such a forecast and it is ex-
plained in the following section (Activity Analysis/Forecast). A
|
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A-23
more detailed rationale is included in the attached report, “De-
mand, Capacity and Operational Analysis of Westchester
County Airport (HNP) Terminal Facilities Modernization Pro-
ject Environmental Assessment”, dated October 1, 1989.
As noted above, the FAA required the County to include in
the EA an analysis of the part of the unconstrained forecast
(passengers and operations) that can reasonably be expected to
be accommodated at the airport in the absence of the contrac-
tural limits (Ref. Pages 7-13 thru 7-33 of November 1988
EA/FEIS, Volume II). The analysis projected 680 peak hour
passengers using four (4) ramp parking position.
The FAA’s independent analysis concluded that the turn-
around times used in arriving at the 680 passenger per hour
figure were excessive and projected that more realistic gate oc-
cupancy times would be:
Airline Aircraft (737/DC-9)
© Unload/load and full service: 45 min.
¢ Originating, terminating, or thru flight: 30 min.
Regional (Commuter) Aircraft
¢ 30 or more passengers: 30 min.
¢ Less than 30 passengers: 20 min.
With these new turnaround values, the new maximum
number of passengers per hour that can pass through the new
terminal, based on ramp parking positions/capacity would
become:
Arriving passengers on large aircraft 2 x 86 = 172
Departing passengers on large aircraft 2 x 86 = 172
Enpl/dep! previous or successive hour 2 x 86 = 172
Arriving passengers on commuter aircraft 4 x 42 = 168
Departing passengers on commuter aircraft 4 x 42 = 168
Total = 852
A-24
This number should not be used to determine the forecast of
passengers and operations that can be expected at HPN. Rather,
this number should be used only to constrain the demand
forecast as an indicator of the amount of peak hour spreading
to be expected, that is, how much the daily operational profile
will change to accommodate the demand. It is assumed that
only when adjacent relatively convenient hours are filled, will
demand suppression begin. The FAA's independent analysis was
used for the forecast of activity of HPN. As developed in the
attached FAA Report, the forecasted maximum number of peak
hour unconstrained passengers at HPN in the Year 2006 will be
about 693. The 852 passenger per hour figure is based on ramp
occupancy time by users. It will only become a constraining fac-
tor if the forecast of passenger demand reached it, which it did
not. Note that the predicted number of 693 is for the busiest
hour of the busy day (Friday) in the peak month (July). There
will be busier days, for example, holidays, during which 693
will be exceeded and 852 will likely be reached.
A forecast of aviation activity at any airport should not be
based on whether a certain number of passengers (i.e., 680, 852
or 1,000) can be accommodated by a building size or number
of terminal ramp parking positions. Terminal size and ramp
space is normally based on the forecast of passengers/operations
at an airport, not vice versa. The FAA’s independent analysis
presents a reasonable estimate of the passenger activity levels
that can be expected at HPN and how they can be
accommodated.
Hence, the basis of analysis for this Finding is the FAA in-
dependent analysis/forecast, appropriate portions of the EA, and
FAA's experience and judgement in airport planning, capacity
and operational matters.
WEICKER AMENDMENT
The Weicker Amendment to the DOT Fiscal 1989 Appropria-
tions bill (H.R. 4794) directed the FAA “to undertake a com-
prehensive environmental assessment to determine ambient moise
eee eee Sk ee ee ee a ee i ee
eT eee Oe ee Ee
A-25
levels, aircraft noise levels, appropriate noise abatement techni-
ques, and the environmental impact of the proposed terminal,
parking and road network expansion plans.” A number of com-
mentors interpreted the language in the Amendment as a re-
quirement to conduct an Environmental Impact Statement (EIS)
for the proposed HPN development. There was also some ques-
tion that the Weicker Amendment required special treatment
for the terminal project. The intention of the Amendment was
clarified by Congressmen Silvio Conte and Hamilton Fish, Jr.
in their October 27, 1988, letter to the FAA Administrator. In
their letter they stated that, “The Senate report language does
not require that your agency treat this enviornmental assessment
any differently than it would any other environmental assess-
ment for terminal replacement. In other words, the Senate report
language is consistent with current environmental protection
law.”
The FAA has complied with both the letter and intent of the
Amendment. The FAA’s evaluation of the subject EA is con-
sidered to have gone beyond what is normally required for a
project of this nature. This is evident by the FAA requiring the
assessment of the terminal project without the existing passenger
cap despite the County’s plan to keep it in effect, and a noise
grid point analysis with and without the stipulated passenger
cap. Also, FAA has provided for a 30-day review period of the
FAA’s preliminary analysis before a final federal action choice
(FONSI or EIS) was made on the proposed action which is not
normally done.
ACTIVITY ANALYSIS/FORECASTS
The forecast of airline passenger and aviation activity in the
Airport Master Plan and February 1987 EA/GEIS assumed that
the stipulation would remain in effect throughout the forecast
period, and that without the provisions of the stipulation in ef-
fect, the forecasts would be different. The FAA recognized the
possibility that the provisions of the stipulation may not remain
. in effect. After receiving comments on the Preliminary Evalua-
tion, which was based on a worst case approach to estimated
activity by extrapolation of a capacity constraint into daily and
A-26
hourly figures which were unrealistically excessive, the FAA con-
ducted an independent analysis of the passenger activity levels
that can be expected at HPN and how they can be accom-
modated. (See attached Report - References to attachments refer
to attachments to that Report).
The FAA's independent demand forecast of commercial ser-
vice enplanements and operations (users of the terminal) was
obtained by plotting historic passengers and extending the
trendline - line with equal scatter cf points above and below
the line (See Attachment 9). Such a straight line projection im-
plies a continually declining rate of growth. This type of forecast
is believed to be appropriate given the high historic rates of
growth which are due primarily to low base numbers. Unsus-
tained high growth rates are characteristics of initial service.
The projection considered that HPN service will ultimately grow
at a declining rate based on two factors:
a. Capture of Westchester, Putnam and Fairfield County
residents (or people from other cities who want to do
business in these counties) who currently use LGA; and
b. some feeder access to the national system to and from
the surrounding area small airports.
Westchester County Airport penetration of the market con-
sisting of Putnam, Westchester and Fairfield County Residents
who currently use LaGuardia will be limited by the relatively
short distance to LaGuardia and the better and more frequent
service provided there. Even with an aggressive campaign to
compete with LaGuardia, (which is not planned) 50% penetra-
tion of Westchester/Fairfield/Putnam LGA enpianements is con-
sidered very unlikely. The attached FAA report contains an
analysis of the viable markets that can be served from HPN and
addresses the question of what penetration of the LaGuardia
market the forecast represents (See pages 4 thru 7 of the Report).
From the plot of historic data with a trendline forecast, a con-
ee ee include both
AE llr Pate ned 06h edt ener A Selear bet Byte Pe
Learner ein lie esate al ee
WS A PS pa ite MARR adn
A-27
arriving and departing passengers) the enplanements (Attach-
ment #9) and splitting the air carrier, commuter and air taxi
activity in accordance with historic data (i.e., 49.5%; 49.5%;
1.0% respectively). This yeilded the following values of forecast
operations at HPN.
TABLE (INTENTIONALLY) OMITTED
Hourly operations and passengers were developed for the Year
2006 with the constraints and subsequent peak spreading into
adjacent hours taken into consideration when necessary (i.e.,
If a particular hour is projected to have more passengers than
the “480 stipulation” for the No Build condition or more hour-
ly operations than could be accommodated by the four aircraft
parking positions, the overage was allocated to an earlier or later
hour or both hours). The results are tabulated as follows:
TABLE (INTENTIONALLY) OMITTED
It is concluded from the above that HPN can be expected to
reach commercial service levels of about 56,618 in 2006 with
or without the Stipulation, with a daily schedule/profile about
as shown in the above Table. It is clear that future passengers
will be even more inconvenienced and crowded with the existing
terminal, with continued confusion and awkward passenger
flows in the security area and other elements of the terminal.
With the new terminal, little or no such problems would oc-
cur. The above figures will be used to evaluate any potential
environmental impacts associated with the Proposed Action.
FAA's independent forecast is in reasonable conformance with
the FAA’s National Terminal Area Forecast (TAF) for HPN and
is attached and is made a part of this Finding.
If the Stipulation Agreement were to be ended or changed
substantially, the above analysis/forecast shows that there would
still be no appreciable increase in passengers per hour beyond
A-28
the 680 analyzed in the EA without future physical airport im-
provements and this would require FAA approval of an ALP
change. In this case, additional environmental analysis would
be required in compliance with the National Environmental
Policy Act (NEPA). To assure that appropriate environmental
consideration is given for any proposed future project having
the potential for increasing the Airport’s capability to accom-
modate more or larger aircraft, such as longer/stronger runways,
additional or changed allocation of termin<z: parking positions
(2AC and 2RA), increased terminal ramp strength and capaci-
ty, a mitigation measure is included as part of this Finding and
will become part of the ALP approval. This mitigation measure
states that, at HPN, any such action will be considered to con-
stitute a need for an ALP revision requiring appropriate en-
vironmental analysis under NEPA prior to FAA approval.
IMPACT ANALYSIS
The following review is a summary of those project imract
areas of concern. More detail on these and other areas can be
found in the EA.
¢ NOTES
An aircraft noise impact evaluation was conducted for the
EA. The noise evluation uses the FAA’s most recent version of
the Integrated Noise Model; (INM), Version 3.9.
Section 4.2.1. on Page 4-1 of Volume I to the November 1988
Supplement contains the aircraft noise evaluation of the existing
(1988) conditions and future (2006) conditions with the Terminal
capacity limit in place. As evident in Table 4.3 of this Section
(Page 4-10), the area within the future noise contours is evaluated
to be smaller than the existing contours. Although the total
number of operations are greater in the future condition, average
aircraft noise levels are expected to be less due to the continu-
ing transition to quiet advanced technology aircraft. DOT/FAA
Report to Congress, Status of the U.S. Stage 2 Commercial Air-
craft Fleet, August 1989, indicates that by the Year 2005 ap-
proximately 92.5% of the US. airline fleet will be Stage 3 air-
craft compared to approximately 40% today.
5 aR Rat AA 0 iy alta AIMED PRET Bn 08 te Ie IR
A-29
As noted above, the County was asked by the FAA to con-
duct a detailed grid point analysis over several noise sensitive
areas to evaluate the degree of impact resulting from considera-
tion of the elimination of the terminal capacity limit of 480
passengers per hour. The County analysis was based on a
passenger per hour figure of 680 and produced total annual
figures of: 2,074,660 passengers, 16,060 air carier operations,
and 41,680 commuter opertions. The analysis revealed that con-
tinuation of the capacity agreement would keep the Ldn levels
about 1 unit below those expected in the Year 2006 without the
agreement. This is a change that would not be preceivable te
most people. It must be recognized that the County’s analysis
provides inflated estimates of passengers and airport operations
without the terminal capacity limit by assuming the same week-
day activity occurs on the weekends, which is not the statistical
case at HPN or most other commercial service airports.
As can be seen in the FAA's independent forecast (attached),
peak hour demand activity at HPN in the Year 2006 is not ex-
pected to exceed 693 passengers per hour and that total annual
air carrier and commuter operations are well below those values
used as input for the noise evaluation that was conducted and
produced slightly more than a 1 Ldn increase in noise.
The noise maps in the EA reflect annual operations of 11,500
air carrier plus 32,700 commuter with the terminal capacity
lirnit in place and 16,060 air carrier plus 41,680 commuter with
no terminal capacity limit in place. As can be seen in the follow-
ing Table of Comparative Figures, the County’s figures without
the terminal capacity limit in place are in excess of the FAA de-
mand forecast for the Year 2006. Note, again, that the Coun-
ty’s 680 passenger per hour estimate is a limit not a forecast (as
is the FAA estimate of 852 passengers per hour). The FAA's at-
tached demand forecast i# based on a reasonable projection of
traffic and it has been shown that such demand can be accom-
modated by HPN with or without the new terminal. The data
in the Table on Page 11 differs to some degree from that in the
Table on Page 15, because Page 11 represents a reasonable
forecast of how operations would actually occur while Page 15
A-30
is a comparison of maximums that would be unlikely to occur
or would occur under very unusual circumstances.
Therefore, the noise increases reflected in the FAA's
Preliminary Analysis are no longer considered a realistic pro-
jection. It is FAA’s conclusion that the same traffic (9,900 air
carrier plus 40,218 commuter operations) will occur in the Year
2006 whether or not the Propesed Action Items are accom-
plished. The noise data based on the 16,060 air carrier opera-
tions, which exceeds the demand forecast by more than 60% ,
does not produce any single point increase of more than 1.2 Ldn.
Even though FAA's conclusion is that the proposed items will
not cause any increase in operations or noise, there is always
the possibility that traffic will exceed the forecast. However, even
an upward revision of as much as 60% , which is highly unlike-
ly, would not cause a significant increase in noise impacts.
The additional engine maintenance run-up pad near the
center of the airport provides good accessibility and is also
desirable from the point of view of minimizing noise impacts.
The proposed run-up pad (as well as the existing ones) is remote
from any noise-sensitive land uses in the airport vicinity.
TABLE (INTENTIONALLY) OMITTED
COMPATIBLE LAND USE
The proposed Action includes obtaining control of parcels of
land adjacent to the airport. These include clear zones off the
ends of Runways 29 and 34, and areas on the south side of the
airport needed for sight clearance and storm water runoff reten-
' tion (Reference Items 14 on the attached drawing).
Currently FAA policy on runway protection zones (formerly
runway clear zones) is to resist or oppose objects or activities
in the vicinity of an airport that conflict with an airport plan-
ning or design standard or recommendation. This policy is in-
tended to protect the public’s investment in the national air-
port system. In this regard, obtaining control of the subject
EEE
SOD Sidipm Mt =
A-31
properties will provide better protection against incompatible
land uses in close proximity to runway ends as well as to pro-
vide clear approaches for aircraft safety.
Some topping or removal of tall trees will be required to
remove obstructions in the runway end zones and to permit.
visual sight clearance from the air traffic control tower. The
removal of obstructions will increase safety margins, but are not
expected to change the number or types of ‘aircraft using the
runways. No clear cutting is anticipated. Landscaping will be
done to replace any trees removed and to maintain the aesthetic
character of the area.
With the exception of a small portion of the parcel of land
off the Runway 34 end (owned by State University of New York)
the properties are all privately owned and do not contain any
dwellings. The County has advised that they have no intention
of fee simple acquisition of any of the properties, but would ex-
plore easement control for clearance/safety purposes in accor-
dance with established procedures.
The subject lands would not be used for airport expansion
or development, nor would their modification cause an increase
in airport activit, or capacity. All other Proposed Action items
are within the airport boundary and are considered airport com-
patible uses.
VEHICULAR TRAFFIC
The potential noise and air pollution impacts of the proposed
actions, including the new Terminal and Terminal parking, on
the affected roadway network was discussed and analyzed in
the EA (See Page 7-25 of February 1987 EA/GEIS; Page 5-26
of November 1988 EA/FEIS Volume I; Pages 7-75 thru 7-84 of
November 1988 EA/FEIS Volume I)).
As evident from the traffic analysis conducted (Ref. Pages 7-75
thru 7-84 of November 1988 EA/FEIS Volume II) for both ex-
isting and futuze passenger demand, airport-related vehicles are
currently, and are expected to be in the future, a small
A-32
component of traffic on roads in the area of the airport. The
existing roadways will be able to accommodate the additional
traffic without congestion.
The EA also considers traffic conditions due to new develop-
ment proposed in the vicinity of the airport (Ref. page 7-79 of
November 1988 EA/FEIS Volume II). As of the writing of the
EA, there were fourteen (14) new developments planned for the
area surrounding the Airport. Based on traffic studies conducted
for these developments, it is indicated that increases on the ad-
jacent roadways due to other proposed development would re-
quire improvements to the roads in order to maintain accep-
table levels of services. An evaluation of roadway requirements
of the future traffic with the additional airport traffic was also
conducted. No additional improvements would be required by
the additional airport generated traffic beyond those required
to accommodate the background traffic.
The backgound development in the area, which is already
planned or in progress (excluding the U.S. Postal Service Facili-
ty), will, at some point, require that the Airport Road between
S.R. 120 and Rye Lake Avenue be widened to four (4) lanes.
The additional airport traffic, even without the terminal capaci-
ty agreement in effect, will not add to that requirement. Nor
would it result in any other required changes. In the absence
of the background development, the future airport traffic caused
by normal growth would not create any requirement for road-
way changes.
The EA analysis of future vehicular traffic without the Ter-
minal Capacity Agreement in place used 680 peak hour
passengers. As evident from the FAA’s forecast the demand peak
hour passengers in the Year 2006 is not expected to exceed 693
(Attachment #14B). The difference is considered minimal. As
such, the forecasted level of activity are not expected to result
in any significant airport vehicular traffic.
As shown on the attached drawing, the United States Postal
Service (USPS) has obtained, through condemnation, airport
land upon which they intend to construct a new General Mail
A-33
Facility and Vehicle Maintenance Facility. This USPS project
is a wholly independent activity, totally unrelated to the Pro-
posed Action items of development. Since the USPS project is
outside of FAA control, the FAA expresses no views concerning
their planned activity, environmental actions or any mitigating
measures associated with any vehicular traffic impacts which
may be created by the project.
It should be noted that the location of the Postal Service Facili-
ty on land adjacent to (formerly part of) the airport is merely
a function of site availability not related to the airport or air-
port development. In fact, the Postal Service has maintained
that a physcial connection from their site to the airport is not
being considered. Their pursuit of non-airport related sites ap-
pears adequate to support their contention. If such a physical
connection were proposed, it would require County and FAA
approval and would necessarily be the subject of further en-
vironmental analysis. The Postal facility is a separate action pro-
perly addressed in a separate document which they are doing
in accordance with environmental regulations.
The Westchester County Airport Proposed Action items are
expected to create only minimal additional vehicular traffic
beyond that which could occur without such proposed develop-
ment. Therefore, there will be little cumulative.impact caused
by the proposed Airport actions when combined with the ma-
jor off-site vehicular traffic from the USPS facility.
TERMINAL SIZE AND LOCATION
Airport terminals should be designed for a capacity to meet
the projected needs of the community being served. The pro-
posed action includes a new 41,000 sq. ft. passenger terminal
at the general location of the existing Terminal (see Figure 2.1
in November 1988 EA/FEIS, Volume I). The Sponsor desires that
the proposed new terminal accommodate 240 passengers per
half hour, the capacity of the existing terminal. This figure agrees
with the Stipulation and Terminal Capacity Agreement. Both
Agreements limit passenger flows to this number.
A-34
Because the passenger limit of 240 per half-hour specified in
the Stipulation could be reassessed in 1995 (due to expiration
of the Terminal Capacity Agreement on January 1, 1995), the
County has considered what could happen if there were no limit
at all on the number of passengers who could use the new Ter-
minal per hour (Ref. Page 7-12 on the November 1988 EA/FEIS,
Volume II). The analysis used 680 peak hour passengers and
justifies that the environmental effects of such unconstrained
activity levels are not of a significant nature. FAA's forecast of
peak hour demand passengers expected at HPN in the Year 2006
is not expected to exceed 693 (Attachment #14B). The difference
is not considered significant.
A number of commentors were of the opinion tha. a smaller
sized terminal would be adequate to accommodate forecasted
passengers. As stated above, terminal size is immaterial to the
demand forecast of passengers/operations at an airport. The
Sponsor has selected the proposed terminal sie of 41,000 sq. ft.
in accordance with design standards to accommodate 240
passengers per half hour, the capacity of the existing terminal,
as specified in their agreements to limit passenger flows to this
number. If the Stipulation Agreement were to be removed a new
terminal, at 41,000 sq. ft., could realize some crowding condi-
tions during certain times. DOT/FAA Advisory Circular
150/5360-13, Planning and Design Considerations for Airport
Terminal Building Development, provides guidance on
estimating gross terminal building area. A review of this
guidance indicates that the proposed 41,000 sq. ft. terminal is
on the low side of the area recommended.
An airport terminal can accommodate many more passengers
than it is designed for. However, when passenger flow exceeds
the design standards the results are crowding, loss of comfort-
able facilities and, most importantly, loss of safety in case of
a fire or other emergency requiring swift exit and loss of security
for aircraft and passengers because under the existing crowded
conditions it becomes difficult to assure that appropriate
passenger screening is accomplished.
The new HPN Terminal location will permit the continued
operation of the existing quonset hut during construction and,
ee
A-35
therefore, results in a minimum of passenger disruption. After
review of the configuration of the Terminal area as depicted in
the EA, it can be concluded that its configuration and location
does not significantly alter the operational capabilities of the
terminal apron area. Inherent in this is the fact that there will
be no appreciable increase in the apron area which would allow
use of aircraft that could not utilize this area now. (See below).
Larger, heavier aircraft would be unable to use the airport on
a regular basis due to the shortness of the main runway, the lack
of runway strength, the airport’s crash, fire and rescue limita-
tions, the Airport’s weight-limited, narrow taxiways, as well as
FAA design standards.
TERMINAL RAMP AREA
The number of aircraft parking spaces at the proposed new
terminal will be kept at four, the same number that now exists.
Additionally, the sizing of the ramp will be the same as at
present.
Two of the four parking positions at the terminal are for large
air carrier aircraft which do not exceed the 126 ft. length limita-
tion (due to CFR capability) and the 120,000 lb., gross weight
limitation. The other two parking positions are for commuter
aircraft which do not exceed 85 ft. in length.
The County’s Statement of Airport Policy (no expiration date)
declares, in part, that the airport’s capacity, measured in terms
of its capability to accept an annual number of aircraft opera-
tions, shall not be increased. Retaining the same four aircraft
parking spaces is in keeping with this Policy and does not pro-
mote such an increase. The airport does not have any suitable
space to stack aircraft that may be waiting to get to the ramp
without interrupting airport operations. Thus, arrivals and
departures of aircraft must be scheduled so as to avoid having
aircraft stacked up waiting for access to the ramp. Although the
FAA does not support such administratively imposed limits, this
County policy is in effect by the airport owner and must be
recognized.
ee
A-36
FAA’s forecast of activity at HPN in the Year 2006 does not
warrant the use of larger/heavier aircraft. Such forecasted ac-
tivity can be accommodated with or without the new terminal
using the existing four ramp parking positions. It is the Spon-
sor’s policy and intention to operate the airport in this manner
now and in the foreseeable future.
The runway weight bearing capacity at HPN is rated at
120,000 lbs. for aircraft with dual-wheel type landing gear.
Heavier, larger capacity aircraft would exceed this runway design
capacity with repetitive activity. It is recognized that many air-
port pavements are capable of supporting limited operations
with aircraft at higher gross weights than published runway
strength data. However, for purposes of this assessment only air-
craft in regularly scheduled service operating at the terminal
ramp have been considered. This is because other aircraft can
operate occasionally now and the proposed work will not af-
fect that condition. But such use on a repetitive basis could not
be reasonably accommodated due to pavement strength, ramp
dimensions and ARFF/CFR capability. Furthermore, use of a
parking position without a terminal gate is undesirable and
generally avoided. Regular use of such apron areas by scheduled
aircraft would be very unusual and is not considered a reasonable
basis for long term evaluation of impacts.
Consideration of the MD-80 in the EA (Ref. Page 4-4, Table
4.1, August 1988 Draft EA/EIS) was only for purposes of
calculating higher passenger.loads under the speculative un-
constrained forecast scenario. It should not be inferred that this
aircraft will be in regularly scheduled service at HPN.
AIRPORT CAPACITY
It is recognized that some minor theoretical capacity increases
are unavoidable by certain of the proposed actions. The ma-
jority of them have no relation to airport capacity in terms of
increasing the total number of annual operations. The taxiway
exits and hold pads theoretically increase airfield capacity in
that they reduce runway occupancy times and, therefore, the
soe
A-37
hourly capacity, but are not the type of development which
would result in more annual aircraft operations. These items
improve the efficiency of operations thereby reducing on air-
port delays and the impacts associated with such delays.
Development of new areas for general aviation hangars and
Fixed Based Operator (FBO) facilities is needed to accommodate
existing and projected general aviation activity in compliance
with the terms of the Statement of Airport Policy. The general
aviation facilities currently include no individual hangars for
privately-owned aircraft. The FBOs serving general aviation are
housed in temporary spaces or in dilapidated buildings. Some
of the apron areas used for aircraft parking have broken pave-
ment which could cause damage to aircraft; other aircraft are
parked on the grass or dirt. Many private pilots and their
passengers are required to walk for long distances between their
automobiles and their parked aircraft, while carrying luggage
or other items. There is not enough apron space and servicing
facilities for transient gener~' aviation aircraft.
Three areas were identified on the airport that have sufficient
room and accessibility to the runway system for such uses, and
where development would be consistent with the provisions of
the policy. The Master Plan analysis has indicated that only two
of these three areas are required for FBO facilities and general
aviation hangars to accommodate future general aviation needs.
Two of the areas will be reserved for use only for general avia-
tion, and these areas are expected to satisfy all future general
aviation needs. The United States Postal Service has selected one
of the three areas for their mail processing activities. The area
selected is part of the Item No. 6 area just Southwest of the Run-
way 16 end (see attached drawing). Hence, this area will not
be alvailable for general aviation needs. The wording in the ALP,
“to be developed for general aviation or airport related use,” was
intended to provide the County with flexibility to determine
which areas would be used for general aviation and which one
would be available for other airport related uses. The term
“airport-related use” refers to an activity consistent with the
policy statement.
A-38
The designation of these areas on the ALP gives the County
the flexibility to consider proposals for development of these
areas, and to negotiate with potential FBOs to ensure that the
policy goals regarding light general aviation are met.
The proposed new FBO and hangar areas, while providing
upgraded facilities for existing general aviation users, also in-
troduce the potential for new general aviation use of the air-
port. Such increase is consistent with the County’s policy state-
ment to encourage airport modernization primarily for general
aviation users. Such increase is also reflected in the aviation
forecasts and associated noise analysis and does not have a
measurable effect on the levels of aviation activity which may
create any significant environmental impacts.
An approximate 5,000 sq. ft. area was recently added to ex-
isting Hangar A at HPN, which houses an existing FBO. The at-
tached addition consists of 2 levels at 2,500 sq. ft. each. The first
floor contains a lobby, hallway, passenger lounge, supervisors of-
fice, assistant general managers office and snack bar. The second
floor contains a general managers office, pilots lounge, recep-
tion area, conference room and computer room. The purpose
of the addition is to improve the general aviation pilot-passenger
lounge area which was previously contained in a small room on
the second floor of Hangar A. The addition does not make pro-
vision for any more hangar floor area. It is an incidental item
of construction to provide more comfortable quarters for FBO
pilots and their passengers. The lounge does not impact the safety,
utility, or efficiency of airport operations and as such does not
require a formal revision to the ALP/FAA approval. The lounge
provides improved and more comfortable quarters than the
previous accommodations at the same location. It is not con-
sidered the type of development that results in more annual air-
craft operations. Therefore, the lounge will not contribute to any
adverse environmental impacts on or off the airport.
AIR QUALITY
Air quality impacts are addressed in the November 1988
EA/FEIS, Volume II (Comment No . 10, Page 7-60). Emission
A-39
inventories were developed for existing conditions, future con-
ditions with the terminal capacity agreement in place, and the
scenario of future conditions without any terminal capacity limit
in place. The results show that the Proposed Action items will
not increase emissions appreciably. In any case, emissions
associated with aircraft, motor vehicles and fuel facilities at HPN
are expected to remain a minor contributor to area-wide totals
and, as such, should not interfere with pre-established plans to
mitigate air pollution problems region-wide.
As shown in Table of Comparative Figures, FAA’s forecast of
total annual passengers and aircraft operations at HPN in the
Year 2006 are well below those values used to evaluate poten-
tial air quality impacts in the final environmental document.
As such, the forecasted levels of activity are not expected to result
in any significant air quality impacts.
WATER QUALITY
Water quality impacts will occur due to the increase in im-
pervious areas created by the proposed action and through land
disturbance during construction.
Of the 692 total acres of land on the airport, approximately
162 acres are considered impervious and drain to Rye Lake (52
acres) and Blind Brook (110 acres). The proposed action items
are expected to increase the amount of impervious surface by
124 acres with 75 acres draining to Rye Lake and 49 acres to
Blind Brook.
Existing buildings and areas where petroleum products are
normally handled have drains equipped with oil-water
separators, which aid in preventing fuels, oils lubricants, and
other petroleum products from entering the drainage system.
The airport storm water discharge to Blind Brook is monitored
monthly and has been in compliance with the Airport’s New
York State Pollutant Discharge Elimination System (SPDES) per-
mit. Under the no-build alternative, existing conditions would
continue into the future.
A-40
Under the Build Alternative, the airport drainage system
would be redesigned to comply with the County’s policy man-
date that the airport “plan shall not be construed so as to in-
crease existing run-off levels.” To accomplish this directive,
drainage techniques would be included in the design of all
facilities to divert to Blind Brook the majority of surface runoff
which would naturally drain towards Rye Lake. This would leave
only a small portion of the airport drainage into Rye Lake. A
water retention basin would be constructed in the far south area
of the airport to intercept the flow of Blind Brook as it exits the
airport. It would be designed to offset increases in peak runoff
for all storms up to and including a 100-year storm. As with
existing facilities, all new facilities where petroleum products
are normally handled would have oil-water separators install-
ed and the existing flow would continue to be monitored on a
monthly basis as is required by the NYS SPDES Permit. A mitiga-
tion measure to this effect will be included as part of this
Finding.
The construction of the retention basin would help ameliorate
downstream flood flows to the benefit of the future PL566 Small
Watershed Protection Floor Control Project planned for the
Blind Brook watershed. As requested by the Westchester Coun-
ty Soil and Water Conservation District letter (08/29/86) and
personal communication with Laura E. Tessier, District
Manager, on September 24, 1986, plans for the retention basin
will be submitted to the District for review during the design
stage. A mitigaton measure to this effect will be included as part
this Finding.
Construction of an acceptable water retention basin and use
of oil water separators are expected to mitigate any potentially
significant water quality impacts associated with the proposed
action.
The Westchester County Joint Water Works had requested
a portion of airport property to construct a water filtration plant.
The plant is needed to serve the County and is unrelated to any
of the subject Proposed Action Items of development. The Water
mares |
A-41
Works request was denied. As such, no water plant will be
needed or will exist on airport property.
Construction impacts will be of a temporary nature and
through implementation of Federal, State and local erosion and
sedimentaton control procedures, no significant increase of con-
taminants in the groundwater is expected.
APPROACH LIGHTING SYSTEM (ALS)
The proposed ALS for Runway 34 is discussed in general in
the February 1987, EA/GEIS (Comment No. 6, Page 7-11). An
ALS provides a visual lighting reference for pilots of any air-
craft landing on the runway, thereby providing more positive
control and making landings of aircraft safer. An ALS is a visual
aid, not a navigational aid. All aircraft landing at HPN can take
advantage of the System.
The addition of an ALS to the existing ILS serving Runway
34 will enhance the availability of this Runway to users and can
possibly lower landing minima. The effect of this improvement
on an annual operational capacity would be insignificant. There
would be no measurable effect on the levels of aviation activity
as described in the forecasts and, therefore, no impact on the
calculations of noise and air pollution based on forecasts of air-
craft operations.
The potential light emission impacts associated with the ALS
are also discussed in the February 1987 EA/GEIS (Page 4-8, Sec-
tion 4.18). The proposed ALS would be elevated and shielded
thereby eliminating any light emissions that may pose a distrac-
tion. The land use in the area of the proposed ALS is office,
institutional or vacant.
AIRPORT SURVEILLANCE RADAR (ASR) -9 FACILITY
The existing ASR-8 equipment is scheduled to be upgraded
to an ASR-9 in accordance with the FAA’s National Program.
At present the ASR-9 equipment delivery date is July 1991. The
ASR-9 ecuipment is the latest state of the art equipment and
|
tarts eel
A-42
will enhance the radar coverage of the Westchester County
airspace. The upgrading of this equipment will not provide HPN
with more capacity.
In order to install the ASR-9 equipment without affecting the
operations of the existing ASR-8 facility, the ASR-9 equipment
will be installed in the existing Remote Transmitter Receiver
(RTR) building. The RTR building is located on airport pro-
perty approximately 200 ft. south of the ASR-8 facility. Prior
to establishing the ASR-8 facility, the RTR building was used
as a combined RTR and ASR facility. This building will be
renovated and the old ASR tower foundations will be replaced.
It is necessary to replace the foundations because the old found-
ations were for a 57 ft. tower and the ASR-9 tower will be 77
ft. The 77 ft. tower height for the ASR-9 facility is the same
as the existing ASR-8 facility. However, due to ground eleva-
tions the top MSL elevation of the ASR-9 tower will be approx-
imately 10 ft. higher than the ASR-8 tower. The 77 ft. tower
height is required to eliminate the shielding effect of the trees
surrounding the site. After the ASR-9 facility is commissioned
the ASR-8 equipment and tower will be dismantled and ship-
ped to some other, as yet unidentified, location.
Because of the trees surrounding the site, in general, only the
upper portion of the ASR tower and antenna will be visible from
areas outside the airport. Esthetically, when the ASR-8 tower
is dismantled, the view from off airport will be similar to what
presently exists.
Generally, ASR facilities, located on airport property, are
categorically excluded from formal enviornmental analysis. This
installation is a separate and independent ac.uon from those pro-
posed in this Finding and is mentioned only as a item of future
development occurring in the same general area as other pro-
posed development.
SOCIAL/ECONOMIC IMPACTS
The project will not involve the need to relocate any residence
or business; alter surface transportation patterns; divide or
A-43
disrupt established communities; disrupt orderly, planned
development; or create an appreciable change in employment.
PUBLIC HEARING/RESPONSE TO COMMENTS
A Public Hearing on the Master Plan Update and Draft
EA/GEIS was held at the Airport on November 13, 1986. Citizens
from the area were afforded an opportunity to voice their opi-
nion or concerns about the proposed action. The comments
made in the Public Hearing and in written statements are sum-
marized in Chapter 7 of the February 1987 EA/GEIS, along with
responses. The written statements received are listed and
reproduced in Appendices G and H. Also, Chapter 5 (Pg. 5-1)
of the August 1988 Draft EA/EIS presents additional data in
order to be more responsive to the comments received on the
February 1987 EA/GEIS.
A second Public Hearing was held at the airport, on October
4, 1988. This hearing addressed the Terminal Facilities portion
of the proposed action. The relevant statements made at the
hearing, and the relevant written comments submitted
thereafter, are summarized in Chapter 7 of the November 1988
EA/FEIS (Volume II), along with responses. Copies of the writ-
ten comments submitted on the August 1988 Draft EA/EIS are
reproduced in Volume III on the November 1988 EA/FEIS.
As stated in the Background, FAA had provided a 30-day op-
portunity for public comment on a Preliminary Analysis of the
Sponsor's environmental document. Numerous letters of com-
ment were received, several of which provided information
which warranted additional evaluation by the FAA. The results
of such evaluation and response to comments are provided by
this Finding. Although this Finding does not respond to each
comment individually, all were carefully considered in our
evaluation.
MITIGATION MEASURES
The following measures are conditions of this Finding and
will become conditions of the ALP approval and/or any federal
grant for any of the proposed action items.
A-44
A stormwater management and erosion and sedimentation
control plan will be prepared and submittted to the ap-
propriate federal, state and local agencies for approval,
outlining the timely installation and maintenance or ero-
sion and sediment controls according to the pertinent agen-
cy’s water quality standards and adhered to before, during
and after the construction processs.
. All-land clearing fugitive dust will be kept to a minimum
and open burning of land clearing debris will conform to
the State Air Quality regulations.
. Construction contract specification will contain the provi-
sions of FAA Advisory Circular 150/5370-10, Standards for
Specifying Construction of Airports, (Change 10), Item
p-156, Temporary Air and Water Pollution, Soil Erosion, and
Siltation Control; and 150/5320-5B, Airport Drainage. Con-
struction of any of the proposed action projects will not be
permitted to begin until suitable arrangements have been
made for disposal of construction debris.
. All surface runoff will be collected and run through oil-
water separators and/or other systems for recovering oil, fuel
or other chemical spillages from aircraft or other sources
before entering the drainage system.
. Plans for the redesigned airport drainage system, including
the water retention basin, will be submitted to the ap-
propriate Federal, State and local agencies for approval prior
to construction.
. Before any construction begins in areas not previously
developed, a State 1B survey will be performed to deter-
mine the presence or absence of historic or cultural resources.
If resources are found during the survey or during any con-
struction, the State Historic Preservation Officer will be con-
tacted to determine the course of action.
. Any future proposed action, such as: longer/stronger run-
ways; additional aircraft gate positions; increased terminal
A-45
ramp strength and capacity; or a deviation from FAA dimen-
sional standards, that has the potential for increasing the
capability to accommodate more or larger aircraft. At HPN,
any such action will be considered to constitute a need for an
ALP revision requiring appropriate environmental analysis
under NEPA prior to FAA approval.
CONCLUSION AND APPROVAL
After careful and thorough consideration of the facts con-
tained herein, the undersigned finds that the preposed Federal
action is consistent with existing national environmental policies
and objectives as set forth in Section 101(a) of the National En-
vironmental Policy Act of 1969 (NEPA) and that it will not
significantly affect the quality of the human environment or
otherwise include any condition requiring consultation pursuant
to Section 102(2)(c) of NEPA.
APPROVED: /s/ 11/30/89
Manager, Airports Division Date
DISAPPROVED:
Manager, Airports Division Date
A-46
U.S. Department
of Transportation
Federal Aviation
Administration
Mr. Andrew O’Rourke
County Executive
Westchester County Airport
County Office Building
White Plains, New York 10601
Dear Mr. O’Rourke:
We have reviewed the updated Airport Layout Plan (ALP) for
Westchester County Airport (HPN) which was submitted for
approval by responsible officials from the County of Westchester
on April 24, 1989.
A recommendation to approve the updated ALP was made by
the Manager, Airports Division of the Eastern Region of the
Federa! Aviation Administration on October 10, 1989. That
recommendation was endorsed and approved in the Record of
Decision issued by the Regional Administrator on November 30,
1989, wherein officials of the Region were directed by the
Regional Administrator to take the necessary steps to implement
the decision approving the proposed airport improvements. For-
mal execution of the FAA's approval for this ALP would have
occurred at that time, but for the fact that the State Depart-
ment of Transportation had not yet completed its review of the
project. However, such execution is merely agency implemen-
tation of the Regional Administrator’s decision to proceed with
the airport development plan, including the ALP, at that time.
Now that the updated plan has been adopted by both County
and State officials, the updated ALP is hereby formally approved
as contemplated by the Regional Administrator’s decision and
order of November 30, 1989. As indicated in the October 10
recommendation and in the Environmental Assessment, ap-
proval of the updated ALP is conditioned upon a number of
mandatory mitigation measures that constitute an integral aspect
of that approval. They are:
ttre eee
ee ee Pra
A-47
1. Astormwater management and erosion and sedimen-
tation control plan will be prepared and submitted to the
appropriate federal, state and local agencies for approval,
outlining the timely installation and maintenance of ero-
sion and sediment controls according to the pertinent agen-
cy’s water quality standards and adhered to before, dur-
ing and after the construction process.
2. All-land clearing fugitive dust will be kept to a
minimum and open burning of land clearing debris will
conform to the State Air Quality regulations.
3. Construction contract specification will contain the
provisions of FAA Advisory Circular 150/5370-10, Standards
for Specifying Construction of Airports, (Change 10), Item
P-156, Temporary Air and Water Pollution, Soil Erosion and
Siltation Control; and 150/5320-5B, Airport Drainage. Con-
struction of any of the proposed action projects will not
be permitted to begin until suitable arrangements have
been made for disposal of construction debris.
4. All surface runoff will be collected and run through
oil-water separators and/or other systems for recovering oil,
fuel or other chemical spillages from aircraft or other
sources before entering the drainage system.
5. Plans for the redesigned airport drainage system, in-
cluding the water retention basin, will be submitted to the
appropriate Federal, State and local agencies for approval
prior to construction.
6. Before any construction begins in areas not previous-
ly developed, a State 1B survey will be performed to deter-
mine the presence or absence of historic or cultural
resources. If resources are found during the survey or dur-
ing any construction, the State Historic Preservation Of-
ficer will be contacted to determine the course of action.
7. Any future proposed action, such as: longer/stronger
runways; additional aircraft gate position; increased
A-48
terminal ramp strength and capacity; or a deviation from
FAA dimensional standards, that has the potential for
increasing the capability to accommodate; more or larger
aircraft. At HPN, any such action will be considered to con-
stitute a need for an ALP revision requiring appropriate
environmental analysis under NEPA prior to FAA approval.
Having executed the approval of the ALP, all steps necessary
to implement the Novernber 30, 1989 Record of Decision have
been taken, other than to process applications for funding. In
that regard, approval of the ALP does not in any way constitute
a commitment on the part of the United States to fund the
recommended development.
It remains the sponsor’s responsibility to provide the requisite
justification for any item of development for which federal fun-
ding is requested. Our participation, of course, will be subject
to the availability of AIP funds.
Sincerely,
/s/ Robert B. Mendez
Robert B. Mendez
Manager
I CONCUR:
/s/ Daniel J. Peterson
Daniel J. Peterson
Regional Administrator FEB 28 1990
Aedes as hele Sona alee a china eel panenee: clarion
ee aE Ua RN ae eat OL
A-49
DEMAND, CAPACITY AND OPERATIONAL ANALYSIS
OF
WESTCHESTER COUNTY AIRPORT (HPN)
TERMINAL FACILITIES MODERNIZATION PROJECT
ENVIRONMENTAL ASSESSMENT
Prepared by: FAA Eastern Region
System Capacity Branch
AEA-630
October 1, 1989
A. APPROACH
The analysis was conducted in two steps as follows:
)
Review all relevant documents including:
a.
Westchester County Airport Master Plan Update,
December ’86.
Westchester County Airport Environmental Assess-
ment and Generic Environmental Impact State-
ment (5 volumes), Feb. 87; Aug. ’88; Nov. ’88.
Sive, Paget & Riesel (S, P, & R) comments on HPN
project interposed on behalf of Town of Greenwich
and ACT dated October 14, 1988.
FAA’ preliminary Analysis of HPN Environmental
Assessment dated Mar. 28, 1989.
Sive, Paget & Riesel comments on HPN project
dated May 5, 1989, including TAMS report.
Westchester Co. letter dated June 5, 1989 to FAA
(W. Handel).
From the review provide:
A-50
a. Independent judgments for the major issues in-
cluding turnaround times, maximum number of
passengers that could pass through the proposed
building, and other questions raised by commen-
tors on the FAA preliminary analysis of 3/28/89.
b. Provide point-by-point answers to the comments
on the FAA preliminary analysis of 3/28/89.
2. Prepare an independent forecast and determine the ef-
fect of known constraints for the no-build and build
options in the year 2006.
B. ANALYSIS RESULTS
The salient points of the analysis are summarized as follows:
1. The no-build alternative should be based on 480
pax/hour which is the “capacity” of the existing building
based on fire code and other safety considerations. In
this regard, the no-build and “stipulation” constraint
are essentially the same.
2. Both forecasts of future terminal area activity in the
environmental assessment were backed into by expand-
ing daily activity with constraints (as a worst case
scenario) into annual figures. The constraints used were
the stipulation that will hold passengers to 480 per hour
and the other, 680 passengers per hour, as constrained
by the size of the aircraft parking ramp. The FAA
developed a forecast based on the trend of historical
data and market potential (described below) which is
a more conventional approach.
3. Fron review of all data, the one hour turn around times
used in arriving at the 680 pax per hour appear to be
excessive. More realistic gate occupancies would be:
Airline Aircraft (737/DC-9):
Unload/load & full service............ 45 minutes
Originating, terminating, or thru flight. .30 minutes
ee
A-51
Regional (Commuter) Aircraft:
30 +/Pax 30 minutes
Less than 30 pax 20 minutes
With these new values, the new maximum number of
passengers per hour that could pass through the ter-
minal based on ramp capacity and 66% load factor
‘ with maximum sized aircraft would be:
i Arriving pass. on large aircraft 2 x 86 = 172
Departing pass. on large aircraft 2 x 86 = 172
* Enpl/dep! previous or successive hour 2 x 86 = 172
Arriving pass. on commuter aircraft 4x 42 = 168
Departing pass. on commuter aircraft 4 x 42 = 168
Total = 852
* 15 minute interval before or after 45-min turn around
time.
This number should be used only to constrain the de-
mand forecast. The constraint will indicate the amount
of peak spreading to be expected, that is, how much
the daily profile would have to change to accommodate
the demand that exceeds 852 PAX in an hour. Note that
while the above analysis uses a 65-passenger commuter
aircraft, the market does not support such « large air-
craft in commuter operations. The analysis, however,
describes the worst-case when all of the largest aircraft
likely to be operating show up in the same hour. As
described later in this analysis the expected number
of peak hour passengers on a busy day in the peak
month is 693 arriving and departing passengers, not
852.
le ithe nL Se ae, Amt ed Pe ee re ee
‘ The Environmental Assessment, did not clearly indicate
: that the ramp will be a constraint, since additional
. large aircraft could be accommodated on the adjacent
/ aircraft apron. The airport owner, however, has in-
dicated that the proposed terminal will be serviced only
| aati ll
A-52
by two airline and two commuter parking positions.
The airport owner has further stated that the adjacent
apron is and will continue to be used for transient
general aviation aircraft parking.
Note that the National Plan of Integrated Airport
System (NPIAS) also includes the GA runway as a
capacity item accounting for the $7.0 million reference
in the S,P, & R critique. See Att. #1. This runway is
no longer planned by Westchester County and has been
deleted from the NPIAS.
Atts. #2 A, B, & C are point-by-point analyses of the
Sive, Paget & Riesel comments, the TAMS consultants
critique and the Westchester County/FAA letter of
6/5/89.
C. Forecast of Expected Terminal Activity:
A forecast of commercial service enplanements and opera-
tions (users of the terminal) was prepared in the following steps:
Assemble and analyze historic enplanements and
operations.
Determine 1988 monthly, day-of-the-week, and hour-
ly relationships.
Project unconstrained annual enplanements to the year
2006.
Convert unconstrained projected annual enplanements
to annual operations.
Analyze LGA market penetration to assess how many
point-to-point air carrier markets are viable from
Westchester.
Assess the reasonableness of the forecast based on an
estimate of its penetration of the LGA market, i.e.
Westchester/Putnam/ Fairfield residents who current-
ly use LGA.
A-53
Compare the forecast prepared in this analysis to FAA’s
top-down (master plan modified) Terminal Area
Forecast.
Use 1988 monthly, day-of-the-week, and hourly rela-
tionships to reconstruct a busy day in the peak month
of the year 2006.
Analyze the effect of no-build and the ramp constraint
on the year 2006, i.e. will it suppress the demand.
The forecast analysis follows:
1.
ALAS eit AA SBA th Ao
BAS er tal Mine Neto Stig Jk IDM es tind
Analysis of HPN passengers and operations are sum-
marized as follows:
a) Historical Annual Passengers, 198] through 1988,
divided into Air Carrier, Scheduled Commuter and
Air Taxi, with percent of each, are given on Att.
#3. These are based on final 1981-87 and preli-
minary 1988 Air Carrier Activity Information
System (ACAIS) reports which are the most de-
tailed and accurate information available.
b) Historic Annual Operations, 1981 through 1988,
divided into Air Carrier, Scheduled Commuter and
Air Taxi with average passengers per operation is
given on Att. #4. These were compiled from ATCT
traffic counts with some modification based on in-
formation from Airport Management’s landing fee
records and analysis of Official Airline Guides.
c) 1988 operations, by month, are given on Att. #5.
These are based on ATCT traffic counts.
d) August 1988 and July 1989 weekly operations
showing day-of-the-week variation are on Att. #6.
These are based on the Official Airline Guides for
the periods shown.
A.54
e) 1988 busy-day-peak-month operations showing
hourly variation are on Att. #7. These are based
on the actual airline/commuter schedule for August
1988.
f) The 1988 monthly, weekly and hourly relationships
are compiled on Att. #8, and are considered
baseline relationships.
A forecast of Westchester County Airport enplaned
passengers was obtained by plotting historic passengers
and extending the trendline; meaning a line with equal
scatter of points above and below the line. Such a
straight line projection implies a continually declin-
ing rate of growth. This type of forecast is appropriate,
given the high historic rates of growth which are
associated with low base numbers. Unsustained high
growth rates are characteristic of initial development
of service. It should be noted that Westchester Coun-
ty Airport service is growing based on two factors:
a) Capture of Westchester, Putnam and Fairfield
County residents (or people from other cities who
want to do business in these counties) who current-
ly use LaGuardia; and
b) Feeder access to the national system to and from
the surrounding area small airports (Binghamp-
ton, Bradley, Poughkeepsie, BTV).
Although LaGuardia enplanements from the
Westchester/Fairfield area have grown at an annual rate
of 3.8% from 1979 through 1985, there is little historic
data to establish how many Westchester/Fairfield
residents would use Westchester County Airport if bet-
ter service was provided. Market penetration forecasts
(absent a survey) are therefore precluded and a
trendline forecast is considered the most suitable
method.
A-55
A plot of historic data with a trendline forecast is shown
on Att. #9. This was converted to operations as shown
on Att. #10. Note that projected passengers per opera-
tion from Att. #4 were used to convert forecast
passengers to operations.
3. The number of viable markets that can be served from
Westchester County Airport are limited based on the
: following:
aA TCE Hv
a) Average daily enplanements at LaGuardia from
the Westchester area are:
1979 1985 1988
PANYN] PANYN] Estimated
PaxO&D PaxOeD @ 4%
i
i
,
:
3
:
Survey Survey incr/yr
Westchester Co. 1614 2067 2312
Fairfield Co. 1789 2380 2662
Putnam Co. 30 47 52
Total 3433 4494 5026
b) Note that LaGuardia enplanements from the area
grew at a rate of about 4% per annum from 1979
through 1985, and 4% was therefore used to
estimate 1988 enplanements from the area. Using
the estimated 1988 average daily enplanements
from the Westschester area at LaGuardia to hub
destinations that are within the range of a 6548’
runway, the table below was developed. Note that
Westchester Ccunty Airport penetration of
LaGuardia passengers from the Westchester area
is constrained by the runway length, i.e. abaility
to reach more distant markets.
A-56
Daily Enplanements at LGA From
Westchester Area to the
Destinations Destination Shown
% LGA 100% 50% 25 %
Washington, (DCA/IAD) ll 552 276 138
Boston (BOS) 10 502 251 100
Chicago (ORD) 8 402 201 100
Toronto (YYZ) 4 201 100 50
Detroit (DTW) 3 150 75 38
Pittsburgh (PIT) 3 150 _7 38
Charlotte (CLT) 2 100 50 25
Raleigh Durham (RDU) 2 100 50 25
Montreal (YUL) 2 100 50 25
Philadelphia (PHL) l 50 25 13
Dayton (DAY) ] 50 25 13
Cincinnati (CVG) ] 50 25 13
The table is based on the assumption that passengers
originating from the Westchester County Airport
service area, have the same percentage destinations as
ali LaGuardia passengers indicated in column 2 above.
The table is read as follows: 11% of enplanements at
LGA are destined for Washington, D.C.; 5026 people
per day from the Westchester area enplane at LGA;
11% of 5026 or 552 people enplane at LGA for
Washington, D.C.. If HPN captured 50%, 276 peo-
ple/day would enplane at HPN for Washington, D.C.;
at 25%, 138 people/day.
A-57
c) Actual Westchester County Airport penetration of
existing Putnam, Westchester and Fairfield County
Residents who currently use LaGuardia will be
limited by the relatively short distance to LaGuar-
dia and the better and more frequent service pro-
‘ vided there. Even with an aggressive campaign to
compete with LaGuardia, (which is not planned)
50% penetration of Westchester/Fairfield/Putnam
LGA enplanements is considered very unlikely.
Toe Sng 08 pe AOE OS ME Fmt
d) At least 86 passengers per day are required to
justify initiation of one air carrier flight of a 130
passenger aircraft to a new market. The division
line in the table therefore, indicates a reasonable
separation of the direct air carrier market from the
connecting or commuter markets. As indicated,
few markets are viable even at 50% penetration,
namely Washington, D.C., Boston, Chicago and
Toronto, with Detroit and Pittsburgh marginally
sO.
4. The question of what penetration of the LGA market
: the forecast represents is addressed as follows:
. Westchester County Airport (HPN) enplanements are
expected to grow from the current 340,000 enplane-
ments to 650,000 in the year 2006: 1) by drawing from
residents who currently use LGA to the viable West-
chester County Airport markets and, 2) by growth in
the small airports (POU, BDL, BGM, etc.) using HPN
for access to the hubs to which it is connected. If the
latter is subtracted from the 310,000 growth (current
to 2006) in enplanements the remainder represents
penetration of the LGA market.
An estimate of the HPN-small station market is in-
dicated by the non-scheduled air taxi (2864 in '88 see
) Att. 3), plus the non-airline associated commuters
(14,770 in °88, see Att. 11), plus the airline associated
commuter passengers to and from smal) stations
(estimated to be 47,450 in 88 see Att. 11). The total
A-58
small station market is estimated to have been 65,084
in 1988. At 4% growth this will double by 2006, that
is it will grow 65,000 to 130,000 enplanements. Sub-
tracting this growth from the 310,000 and dividing by
365 gives 671 residents per day using HPN in 2006 to
viable HPN markets (DCA, IAD, BOS, ORD, YYZ,
DTW, PIT) that would have used LGA. When this is
compared to the 2257 passengers per day (88 increased
@ 4%) that will board at LGA in 2006 to these cities
a penetration of about 30 % is indicated. This appears
to be a reasonable figure considering that as LaGuar-
dia reaches capacity and as airport access delays in-
crease Westchester/Pairfield/Putnam residents will seek
alternative service at their own airport.
The forecast 650,000 enplanements (1,300,000
passengers in and out) was compared to the TAF com-
mercial service enplanements of 512,000 in 2000 which
projected at the same TAF rate would be 592,000
enplanements in 2006. The forecast in this analysis is
about 10% higher but is in reasonable conformance.
It should be noted that the FAA TAF (marked-up copy
Att. #12) is in error for two reasons:
a) The current TAF GA forecast is based on an old
Howard, Needles, Tammen & Bergendoff (HNTB)
Master Plan: study that included a GA runway that
is no longer planned; therefore, the forecast GA
activity is overstated.
b) The division of air carrier and scheduled commuter
traffic count by the ATCT is based on the two and
three letter airline/commuter identifiers which
became confused when the commuters became
associated with the major airlines. Also adding to
the confusion is that commuters are operating
under both FAR Part 12] and 135. As a result, while
the totals of commercial operations in 1986 and
1987 are correct in the TAF, the airline/commuter
A-59
separation is in error. These were corrected in this
analysis by obtaining airport management's records
of commercial service landings and by reference
to the OAG schedules for the years in question.
ah SC AE Rg PAE,
7. The effect of the “no-build” and “680 now 852 PAX/hr
ramp” constraints were captured by means of a spread
sheet detailing annual, monthly, day-of-the-week, and
: daily/hourly relationships taken from 1988 operations.
A copy of the 1988 spread sheet is given on Att. ¢13A.
Forecast 2006 operations from Att. #10 were put into
the spread sheet. The resulting hourly operations and
passengers are given on Att. #13B. The corresponding
daily profiles are as shown on Att. #14A & B. The con-
straints and subsequent peak spreading into adjacent
hours is indicated on Att. #14C, D, and E. For com-
parison purposes 1988 average day and peak day values
are given on Att. ¢14F.
8. Note that the forecast number entered into the spread
sheets is commercial service operations. The total
operations number shown on the 2006 spread sheet was
arrived at by maintaining the 20.4% commercial ser-
vice to total operations relationship. Although an in-
dependent General Aviation forecast could be
developed, it is irrelevant, since the terminal will only
be used by commercial service aircraft.
9. Note that the forecast of passengers in this analysis is
constrained by the ability to reach other markets from
the existing runway length.
D. Conclusions:
The following conclusions were made from the review and
analyses:
1. The impacts of the proposed terminal should be
evaluated based on a forecast of commercial service
passengers and operations, rather than hourly
A-60
passenger limit or worst case scenario expanded to
annual activity as was done in the preliminary analysis.
There are a limited number of markets that are viable
for direct service from Westchester County Airport with
Air Carrier aircraft.
The forecast developed in this analysis indicates:
Expected passengers in 2006 can, with some peak
spreading, be accommodated in the year 2006 on
a ramp providing 2 commuter and 2 airline park-
ing positions with or without the new terminal.
Air carrier aircraft turnaround times of 45 minutes
rather than 1 hour are more realistic. This alters the
maximum number of passengers that could pass
through the building during peak periods. However,
the limits at peak hours do not significantly affect total
activity because as each peak is reached that additional
demand can be accommodated in adjacent hours.
The “no-build” alternative and gate/ramp constraints
were used only to analyze their effect on the daily pro-
file of operations in 2006 and whether overall demand
would be suppressed. Analysis indicates it would not.
ab sender. Widest ait
.
|
a
:
i
4
;
:
A-61
List of Attachments
1.
2A.
2B.
2C.
13A.
Westchester County Airport NPIAS Data Sheet
Point by Point Analysis of Sive, Paget & Riesel Comments
Point by Point Analysis of TAMS Report
Point by Point Analysis of Westchester County Letter of
6/5/89
Historic Westchester County Airport Passenger
Enplanements
Historic Westchester County Airport Commercial Service
operations
1988 Commercial Service Operations by Month
August 1988 & July 1989 Scheduled Commercial Service
by Day-of-the Week
August 18, 1988 HPN Air Carrier & Commuter Opera-
tions By Hour
1988 Baseline Relationships
Historic & Forecast HPN Annual Enplanements 1981 -
2006
HPN Forecast Commercial Service Operations 1991 - 2006
1988 HPN Enplanements (ACAIS Data Base)
FAA Terminal Area Forecast HPN Enplanements and
Operations
Spread Sheet for 1988 Annual, Monthly, Weekly & Hourly
Operations
13B.
14A.
14B.
14C.
14D.
14E.
14F.
A-62
Spread Sheet for 2006 Annual, Monthly, Weekly & Hourly
Operations
Unconstrained 2006 HPN Commercial Service Busy Day
Peak Month Activity
Unconstrained 2006 Seats & PAX @ .66 LF Busy Day
Peak Month
/
No-Build 2006 HPN Operations & PAX @ .66 LF Busy
Day Peak Month
Ramp Constrained No-Build 2006 HPN Operations
Ramp Constrained No-Build 2006 Average Day & Busy
Day PAX
1988 Average Day & Busy Day PAX, Operations & Seats
NOTE: Att. #14E represents the no-build condition (constrain-
ed by the building and ramp) in the year 2006. Att.
#14A represents the build condition in that the peak
hour PAX 693 can be handled by the building and does
not reach the 852 PAX/hr ramp constraint. Note also
that the average day figures were developed by ap-
plying average day load factors to busy day peak
month operations.
The average day PAX & operations are therefore
overstated somewhat, and are not directly convertible
to annual figures by multiplying by 366, the difference
however is small and not considered significant.
~-
A-63
POINT BY POINT ANALYSIS OF S. P. & R. COMMENTS
lL S.PRG&R. Pg:
“The FAA's Preliminary Findings . . . is the expansion of the
Terminal Facilities and aircraft parking apron ... will not
inc. ease the number of passengers per hour or aircraft opera-
tions which would occur if the ALP was unchanged.” .. .
The FAA concluded (preliminarily) that the capacity and
actual use of the airport will not be changed by replace-
ment of the existing 10,000 square foot terminal with the
proposed 41,000 square foot terminals — there will be 680
passengers per hour in the No-Build and 680 passengers in
the Build.”
K
4
{
3
£
)
+
a
4
FAA Analysis: Would seem to be so from Preliminary
Analysis Pg. 4:
“However, it must be understood that even without the
limiting agreements, the proposed facilities have a negligi-
ble effect on total air carrier operations and passengers.”
Since the 480 passengers per hour was derived from the
capacity of the existing building which was based primari-
ly on fire code and other safety considerations, it is obvious
that this should be the No-Build condition and the 680
passenger limitation based on the ramp constraint should
be the Build condition.
Regarding the EA forecasts: Neither are demand forecasts.
One is an extrapolation to annual enplanements and opera-
tions based on an owner/airline agreement limiting the new
terminal to 480 pass/hour which is also the no-build con-
dition. The other is an extrapolation based on the capacity
of the gate/apron area to accommodate aircraft. An underly-
ing assumption is that the demand is adequate to cause the
constraints to be operative for considerable periods of the
day, week and months. The real questions to be answered
;
i
;
:
f
7
A-64
are: (1) What is the demand for service, and (2) if it exceeds
the capacity of the facilities, how much will be accom-
modated or inhibited taking into account peak spreading.
Subsequent FAA forecast and analysis indicated that de-
mand could be accommodated build or no-build, with two
air carrier and two commuter gates. While some peak
spreading is necessary, overall demand accommodation is
not significantly affected. The build alternative would ac-
commodate the expected passenger peaks with some
crowding while the no-build would be characterized by ex-
treme crowding.
S. P. & R. Pg. 2:
“The FAA's conclusion is simply wrong on both ends: (1)
the use of the Airport will not approach 680 passengers per
hour if the ALP is not revised (the No-Build); (2) the capaci-
ty will be 1000 passengers per hour in the Build scenario,
and (3) the full capacity of 1000 passengers per hour will
be utilized if the proposed federal action is approved.”
FAA Analysis: (1) The maximum for no-build is 480 PAX/hr
for safety/building occupancy reasons; (2) FAA terminal
criteria applies appropriate square feet of terminal per
typical peak hour passengers which allows for under utiliza-
tion initially, then accommodation of the design figure, then
accommodation of more than the design number with some
crowding. Whether a terminal designed for 480 PAX/hr
would accommodate 680/PAX/hr or 1000 PAX/hr is a func-
tion of the level of service an airport owner wants to pro-
vide i.e. some would tolerate more overcrowding before ex-
panding, than others. In any case, the terminal itself, ab-
sent the agreement, would not become a constraint at a fixed
number. An approximate answer could only come from a
survey of comparable airports to determine average
tolerance for overcrowding; accommodation of 1000 PAX/hr,
for exampleon Thanksgiving or other holiday weekends,
is conceivable. The real question is what are the anticipated
(forecast) passenger peaks.
OR dares iat Or!
CL om cles OS 1 CO,
A-65
The gate/apron constraint, which is the origin of the 680
PAX/hr in the EA/FEIS should be evaluated on the basis
of the current and likely future mix of traffic, rather than
the ability of the apron to accommodate aircraft. The 1988
annual split of commuter/air taxi to air carrier was 37, 980
to 4434 or 8.6 small aircraft to every one air carrier.
Squeezing in four or five of the largest air carrier aircraft
likely to operate at the available apron space presumes a
dramatic change in the aircraft mix and demand i.e. more
air carrier than air taxi aircraft. The 1988 passengers per
operation were 12 passengers per operation for commuter/air
taxi and 53 passengers per operation for air carrier aircraft.
These numbers do not suggest larger aircraft are justified,
nor presage such a dramatic change in the aircraft mix. The
response of putting the four aircraft onto the apron was in-
vited by the EA/FEIS method of backing into a forecast by
constraint.
Subsequent FAA forecast and analysis indicated uncon-
strained demand in the year 2006 could have a peak hour
at 7-8 in the morning as follows. Air Carrier — two in-
itiating (beginning of days flight itinerary) departures, two
turn around flights and commuter — five morning initiating
departures and one commuter turn around flight. These
could not be accommodated on a two air carrier/two com-
muter ramp but could easily be spread into adjacent hours.
S.P.&R. Pg. 5:
“The FAA’s conclusion is based on the following “facts”:
— the turn around cycle for large aircrafts takes about
one hour;
— “only two large aircraft can be unloaded at one time
because larger aircraft can only use the two gates
designated for them;”
A-66
FAA Analysis:
Although it varies somewhat by airport the current gate ser-
vice times used in the FAA National Taxk Force studies for
large (727,737,DC-9) aircraft are:
Time Cumulative %
30 minutes 20 %
45 minutes 80 %
60 minutes 100 %
Considering this and the information provided by Interair
Development Corporation, Boeing and others, it would ap-
pear that it would be appropriate to use an average 45
minute turnaround time for the type of aircraft using or
likely to use Westchester County Airport. Originating, ter-
minating or through flights with minimal servicing should
be provided 30 minutes gate service time. The effect of us-
ing 45 minute service times would be to increase the
estimated 680 PAX/hr to 852 passengers per hour as the
maximum that could pass through the building during the
worst case peak.
Although the prospect of 3 or 4 air carrier at one time is
not impossible (considering the stochastic nature of demand,
(weather, delay, etc.), it is unlikely given the current and
forecast mix of air carrier versus commuter. The airport
owner has indicated that the ramp and building will be
designed to accommodate two air carrier and two commuter
aircraft.
S. PB & R. Pg. 7:
“In reality the new terminal will be able to process many
more passengers than the 680 per hour stated in the EA.
The EA asserts that the new 41,000 square foot terminal
can accommodate, at a comfortable level, consistent with
FAA criteria, 650-700 passengers per hour.”
De On a ah. eR MON en
A-67
FAA Analysis:
A 41,000 square foot terminal can accommodate more than
480 passengers (the design number) per hour with some
crowding during peaks. Terminals do operate at levels higher
than their design capacities.
SP & R. Pg. 8:
“The capacity of the Ramp is six large, Group III aircraft
at any one time, not two. Chart 5 of the TAMS Report
demonstrates that six Group III aircraft can be parked on
the ramp at the same time, meeting all FAA criteria.”
FAA Analysis:
Neither the size of the apron, nor lack of loading bridges
would limit use of the apron to two air carrier and two com-
muter aircraft. The airport owner has, however, indicated
that the proposed terminal will be served by two airline and
two commuter parking positions, and the adjacent apron
is and will continue to be used for transient general avia-
tion aircraft parking.
S. P & R. Pg. 9:
“The following are some examples of the current turn
around times for planes which terminate flights at
Westchester and then are used to originate departing flights.
— Northwest Flight 1148 arrives from Detroit at 5:42 p.m.
and the same DC-9 leaves as Flight 1151 for Detroit
at 6:12 p.m.” ...
“The smaller commuter planes turn around even faster:
— Piedmont Flight 4401 arrives from Baltimore at 9:10
a.m. and leaves as Flight 4408 for Baltimore at 9:29
”
a.m. > se
A-68
FAA Analysis
It is hard to refute the schedule. The only offsetting com-
ment is that actual activity does not always track the
schedule.
SP & R. Pg. U:
“ __. Table 5 also indicates that seven aircraft currently re-
main on the ground overnight, showing again that the EA
and the FAA underestimate airport parking capacity...”
FAA Analysis:
The environmental assessment did not specifically address
the issue of airport overnight parking capacity. It is rele-
vant to the extent that the environmental assessment should
have incorporated gate time to reflect overnighting. Note
that only two of the overnighting aircraft are air carrier,
the remainder are commuter. Subsequent FAA analysis in-
dicated that the effect is not significant.
SP &R. Pg. 12 & 13:
“Total seats per day in 1983 was 939, in 1986 the number
of seats was 265 (SIC) and in 1989 the total numbers of seats
was 3050. ... The comparison between seats in 1983 and
seats in 1989 is particularly striking. Not only has the ab-
solute total increased dramatically, but the distribution of
these seats has changed from almost total concentration in
the morning and evening peak hours to an almost equal
distribution throughout the day. This reflects the increas-
ing use of large planes throughout the day.
FAA Analysis
The number indicated for 1986 appears to be a typo. From
the referenced chart the number is more like 3100, which
means it has remained virtually the same for the past 3 years.
We should look at what service there was in 1983; and seats
A-69
are not people, must look at load factors. Although air car-
rier seats have more than doubled since 1983, passengers
per operation have declined 23%. This does not appear to
be a warrant for larger or more frequent air carrier flights.
Positioning of aircraft for the day’s flight itinerary is also
a factor at Westchester County Airport.
Growth in the size of commuter aircraft is a systemwide
phenomena, brought on by a decline in air carrier service
commuters with the air carriers (code sharing) and public
demand for better and larger aircraft. Inferences regarding
demand based on the number of seats in and out are
therefore of limited value. In 1988 the average number of
passengers per operation of the commuters serving the air-
port were 13 passengers.
SP & R. Pg. 13:
“A large growth in demand can also be predicated for
Westchester Airport due to the current market penetration
both at Westchester and at the areas serviced by
Westchester.” ... :
FAA Analysis
From a 1978 Port Authority survey, the average daily
passenger enplanements at LaGuardia from the Westchester
area were as follows: Putnam Co. — 30, Westchester Co.
— 1614, Fairfield Co. — 1789, Total 3433. From a 1985
survey the numbers are as follows: Putnam County 47,
Westchester County 2067 and Fairfield County 2380, Total
4494. This indicates a growth rate of about 3.8% per an-
num since 1978. At this growth rate the numbers for
LaGuardia in 1988 are estimated to be Putnam County 52,
Westchester County 2312 and Fairfield County 2662, total
5026. The following table presents feas! ole destinations from
Westchester County Airport, the percentage of passengers
to the markets from LGA and the percentage applied to
A-70
*Estimated Daily Enplanements at
LGA Destinations LGA From Westchester Area
% LGA 100% 50% 25 %
Washington, D. C. 1] 552 276 138
Boston 10 502 251 125
Chicago 8 402 201 100
Toronto 4 201 100 50
Detroit 3 150 75 38
Pittsburgh 3 150 _75 38
Charlotte 2 100 50 25
Raleigh Durham 2 100 50 25
Montreal 2 _100_ 50 25
Philadelphia ] 50 25 13
Dayton 1 50 25 13
Cincinnati ] 50 25 13
Assuming a 130-passenger aircraft with a 66 % load factor,
about 86 passengers would be required to justify one flight
per day, or 172 for two flights per day. From the above table
it would appear that at 25% penetration of all passsenger
from the area, only 3 markets would be viable (at one flight
per day) with 2 other markets marginally so. Even at 50%
penetration only one other market is indicated. From this
rather simplified analyses is it could be concluded that
Westchester Co. has only a few medium-ha
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