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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