# Petition for Writ of Certiorari — Town of Rye v. Skinner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1024

## Text

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. 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 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-haul markets that
are viable with Air Carrier, aircraft.

EEO

inte Olt A, Pulley de De

se eri a he ee

10.

A-71

Note that one-flight-per-day service has serious shortcom-
ings for attracting passengers, and that the viable markets
for two flights/day are less. Westchester Co. Airport penetra-
tion of the market will be limited because of the more fre-
quent and better service provided by LaGuardia.

Even if Westchester County Airport went into aggressive
competition with LaGuardia (which is not planned) it could
not attract all passengers from the Westchester service area
who currently use LaGuardia because:

— The service to all the cities Westchester is likely to serve
with air carrier aircraft (Chicago, Washington, Boston,
Detroit, Pittsburgh) is better (more frequent) at
LaGuardia; and the trip to LaGuardia is not excessively
long.

— The Westchester Co. area does not generate enough de-
mand to many markets that LaGuardia serves e.g.
Westchester — Charleston, West Virginia, or
Westchester — Greensboro, N.C. will never be feasible;

— Longer haul destinations are not feasible from
Westchester due to its limited runway length (6548’).

The point of this analysis is to demonstrate that Westchester
County Airport has basically a commuter market with
limited air carrier service to tie it into larger hubs. It will
serve Westchester County residents who want access to the
national system and persons wanting to travel to Westchester
for business or pleasure reasons.

S. PR & R. Pg. 14:

“The Airport is serviced by major airlines: Delta, United,
American, Northwest, U.S. Air, Piedmont. With increased
capacity, these major carriers will undoubtedly seek to ex-
tend their service to their “hubs” not currently serviced.
Chart 7 of the TAMS Report depicts new cities which are
“hubs” of the carriers now operating at Westchester, within

ll.

A-72

the range of their existing flights. .. Each of these additional
hub destinations are likely carididates for new direct ser-
vice from Westchester to all of the major domestic air
passenger markets.”

FAA Analysis:

Comments regarding the potential markets indicated on
TAMS Chart 7 are as follows:

— Generally speaking, the Airlines look to the market for
developing the appropriate service and aircraft size to
tie into their hubs. They do not necessarily tie all sta-
tions directly into their main hubs unless the market
indicates such service is warranted.

— From FAA analysis Westchester to Pittsburgh may be
feasible. Direct Westchester-Dayton is unlikely due to
the limited market for such service. U.S. Air is more
likely to tie into its major hub at Pittsburgh rather than
overfly it.

— Direct Service into Raleigh Durham or Chariotte is
unlikely because service points south and southwest
from Westchester are already provided for, to a large
degree, by the current ties into Washington D.C..

— Direct Westchester-Cincinnati service does not appear
to be justified by the Westchester service area market.

Most of the major airlines mentioned are currently servic-
ing Westchester with commuter aircraft which provide more
frequent service than would air carrier aircraft. The market
does not suggest a major change.

S. PR & R. Pg. 14:

“An increase in demand and a resulting growth in number
of operations can also be surmised from the fact that the
airlines using Westchester Airport are currently replacing
their fleet composition with larger aircraft. ...

a a ee

12.

13.

A-73

FAA Analysis:

Introduction of larger aircraft is ordinarily justified by larger
load factors which are not indicated by the historical market
demand. If larger aircraft are used operations would
decrease not increase. The use of slightly larger aircraft is
more likely in the regional airline (commuter) operations
because of the systemwide growth of this segment of this
industry.

Given the historic small numbers of passengers per opera-
tion, the airlines are likely to continue to serve Westchester
with the newer smaller aircraft in its current fleet and future
fleets.

S. PB & R. Pg. 15:

“According to the National Plan, the FAA will be spending
approximately $7,000,000 to increase the capacity of
Westchester Airport. The National Plan also predicts a total
of 318,000 operations by 2000, illustrating again a marked
understatement in the EA’s estimate of only 280,000 opera-
tions.” ...

FAA Analysis:

The $7 million is for a General Aviation runway that is no
longer planned. The 318,000 operations by 2000 is from a
previous MP study that included the GA runway with its
anticipated increase in GA operations. This development
will be removed from the NPIAS.

S. BP & R. Pg. 16:

“The opposition to this project has been thoughtful and
responsible. It is based primarily on the undeniable increase
in large aircraft operations and traffic which the proposed
ALP and Terminal Facility will generate, transforming
Westchester Airport into a major reliever for LaGuardia and
feeder into the major airlines eastern hubs.

A-74

FAA Analysis:

Westchester County is a corporate/business General Avia-
tion reliever for NY. It accommodates corporate/ business
GA aircraft that might otherwise want to use LaGuardia.
It relieves LaGuardia of passengers only to a very limited
degree in certain select markets by accommodating its own
residents, who currently use LaGuardia.

'
4
§
‘

A-75

POINT BY POINT ANALYSIS OF TAMS, 5/4/89 ANALYSIS

Note that the S, P & R report drew heavily on the TAMS report,
so to avoid redundancy, only new issues in the TAMS report will

be addressed

1.

TAMS Report Pg. 2:

“The assessment states that passenger traffic, estimated at
680 per hour, requires a minimum of 41,000 sq. ft. of ter-
minal space.

The use of a 10,000 sq. ft. facility and growing demand for
air service will undoubtedly result in complete saturation
of the terminal complex long before the traffic will reach
680 passengers per hour and long before the total passenger
increase from 400,000 in 1985 to 1,647,000 in 2006 is at-
tained. Therefore, it appears to be physically impossible for
there to be traffic at the rate of 680 passengers per hour
in the existing no build condition.

FAA Analysis:

The existing building capacity based on fire code and safety
is 480 PAX per hour. This therefore is the no-build condi-
tion. The new building is designed to accommodate 480
passengers per hour comfortably. It would be constrained
to no more than 850 passengers per hour by this 2 air car-
rier/2 commuter gate ramp. Demand analysis indicates,
however, that no more than 693 passengers per hour are ex-
pected in the peak hour on the busiest day of the week in
the peak month in 2006.

TAMS Report Pg 2 & 3:

“The new terminal building is capable of accommodating,
at a comfortable level, consistent with FAA criteria, 650-700
passengers per hour. See Chart 1. As stated in the analysis,

terminals do operate at a much higher level than their design
capacity. A peak capacity of 1000 passengers per hour would
not be intolerable.”

A-76

FAA Analysis:

A peak capacity of 1000 passengers could probably be ac-
commodated with some crowding, i.e. would not be in-
tolerable. Demand analysis indicates that such levels would
occur infrequently.

3. TAMS Report Pg. 4

The ramp is capable of accommodating six Group III air-
craft at one time.

FAA Analysis:

Agreed, but currently there are only 7 air carrier arrivals
adn 7 air carrier departures per day. According to FAA
analysis the market does not anticipate the number of air
carrier aircraft shown on Chart 5 of the TAM’s report; that
is, 6 air carrier at a time. Additionally the County only
plans two air carrier and two commuter gates

4. TAMs Report Pg. 4:

“Ramp capacity is also determined by turn-around time.
The analysis indicates that turn around time is estimated
at one hour. Table 5 depicts the scheduled arrival and
departure times for May 1989 traffic. Analysis of this data
indicates an average turn around time of less than 30
minutes with only one flight of the 66 arrivals exceeding
one hour. Seven aircraft remain overnight. Consequently
ramp capacity is greater than stated.”

FAA Analysis:

A 45 minute turn around time for 737 (DC-9 aircraft, and
a gate occupancy time of 30 minutes for morning
originating and evening terminating (RON’s), and through
flights with minimal servicing is appropriate for air car-
rier (B737/DC-9) aircraft at Westchester.

A-77

5. TAMs Report Pg. 4
Growth is also determined by market penetration.

FAA Analysis:

The market to be penetrated is the people who live in
Westchester Airport’s service are who currently using
LaGuardia. FAA analysis indicates that the number of
markets and penetration is limited.

A-78

COMMENTS INTERPOSED ON BEHALF OF
THE TOWN OF GREENWICH, CONNECTICUT

AND

AIR CONSERVATION TRUST, INC.
ON

WESTCHESTER COUNTY AIRPORT TERMINAL FACILITIES
MODERNIZATION PROJECT

ENVIRONMENTAL ASSESSMENT

AND

FINAL ENVIRONMENTAL IMPACT STATEMENT

SIVE, PAGET & RIESEL, PC.
460 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-2150

POO eT See ila it aii gai oh

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COMMENTS ON WESTCHESTER COUNTY AIRPORT
TERMINAL FACILITIES MODERNIZATION PROJECT
ENVIRONMENTAL ASSESSMENT AND FINAL
ENVIRONMENTAL IMPACT STATEMENT ON BEHALF OF
THE TOWN OF GREENWICH, CONNECTICUT AND
AIR CONSERVATION TRUST, INC.

INTRODUCTION

The comments contained herein are submitted on behalf of
The Town of Greenwich, Connecticut and on behalf of Air Con-
servation Trust, Inc., for the proposed Westchester County Air-
port Terminal Facilities Modernization Project. The En-
vironmental Assessment and Final Environmental Impact State-
ment (“FEIS”) like the Draft Environmental assessment and
Draft Generic Environmental Impact Statement (“DEIS”) for
this project, was prepared pursuant to FAA Order 5050.4A, “FAA
Airport Environmental Handbook”, to the National En-
vironmental Policy Act (“NEPA”), 42 U.S.C. §§4321 et seq. and
the State Environmental Quality Review Act (“SEQRA’”), En-
vironmental Conservation Law, Aritcle 8.

The Town and the Trust’s comments on the DEIS
demonstrated critical omissions and deficiencies. Indeed, those
inadequacies were so severe and so acute that only the prenara-
tion and circulation of a new DEIS could have achieved com-
pliance with the FAA regulations and with NEPA and SEQRA.
Rather than comply with these legal requirements, the County
determined to prepare an FEIS which could purportedly cure
those omissions and flaws. Such failings, however, cannot be
cured by publishing even an adequate FEIS. SEQRA and gover-
ning case law require the preparation and circulation of a new
DEIS or, at the very minimum, a supplemental impact
statement.

The FEIS contains substantial amounts of new information
including a new study on the most important area of the pro-
posal, namely the capacity of the proposed terminal facility. The
inclusion of this information into a FEIS particularly in light

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of the abbreviated time frame for public review’, also requires
supplementation.

Moreover, even with its new information the newly devised
FEIS is seriously deficient in important aspects, and falls far
short of taking the requisite “hard look” at project impacts and
alternatives. The document is non-responsive to the most serious
comments regarding capacity, financing and alternatives. Rather
than respond, it provides elliptical references and ambiguous
information designed to obfuscate rather than inform.

The approach is particularly evident in the responses regard-
ing capacity, segmentation, alternatives and financing. The
County adheres in the FEIS in its adamant refusal to address
the fact the 1987 EA/GEIS provided assurances that an en-
vironmental review would consider the project as a whole before
any decisions were to be made on federal funding or grants for
the various elements. EA/GEIS pp. 7-1 to 7-4; EA p. 5-3. The
FEIS, however, stubbornly refuses to acknowledge that the pro-
ject must be considered as a whole and instead incorrectly asserts
that the County need only conduct a site specific environmental
review. In similar fashion, the FEIS side steps and does not res-
pond to comments addressing the fact that the airport capac-
ity agreement is not enforceable by the County as it has not been
approved by the FAA. Moreover, the FEIS does not address the
fact that the Capacity Agreement expires in 1994. Although an
additional capacity study was included in the FEIS which pur-
ports to address, in the absence of any limiting agreements, the

' The Town and the Trust submit these comments, yet they object to the in-
adequate time period granted to review the document. Under the SEQRA
regulations there must be at least a ten day period for public and agency com-
ment and review, 6 NYCRR §617.9. The FEA, however, was not available un-
til December 1 and many interested parties had not received the FEA by as
late as December 8, 1988. As a matter of law, the ten day time period cannot
commence to run until the FEA had been made generally available thereby
affording the public the opportunity to review the document prior to expira-
tion of the comment period. The Town and the Trust have submitted a letter
of protest to Westchester County objecting to the abbreviated time frame for
public review requiring submission of all comments by December 9, 1988.
(A copy of this letter of protest is annexed hereto as Exhibit “A”).

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projected level of passengers and operations, this study is not
included as part cf the FEIS’ analysis or consideration of en-
vironmental impacts. Thus, the FEIS’s consideration of impacts
continues to be limited by the DEIS’s false assumption that the
Capacity Agreement will restrain the level of operations at the
Airport far into the future.

AIRPORT CAPACITY

The FEIS responds to only one of the comments concerning
airport capacity raised by Greenwich and the Trust. The one
response is in the form of a purported study, never before
presented to the public and not included in the DEIS. The FEIS
ignores all of the other related comments without explanation.
The result is an FEIS which is fatally flawed and does not even
approach the requisite legal standard of public discussion which
is required by SEQRA.

The sole response to the comments on this issue is a “consul-
tant’s study” of the airport capacity under “unconstrained” con-
ditions, the absence of the Terminal Capacity Agreement. This
study is apparently contained in response to comment 3C in
Volume II of the FEIS. However, the “study” is interspersed with
the narrative of the response and is identified by quotation
marks. No explanation of this is provided and it is not clear if
the complete study is included in the response. This highly unor-
thodox means of providing substantive new information does
not allow meaningful analysis since only excerpts are being pro-
vided and an attempt is being made to hide the complete report.

The study itself is presented in such a confusing manner in
a jumble of qualification, myriad tables and inconsistent nar-
rative that it is almost impossible to decipher. The presentation
of such a large amount of new data in an FEIS is inappropriate
and is the prime reason that SEIS’s are required.

In the extremely abbreviated comment period provided by
the county, it is impossible for interested and involved parties
to undertake the careful analysis that is required. This is espe-
cially true in light of the fact that as late as December 7, 1988

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there were insufficient copies of the FEIS available to the public
to allow the detailed review which is required.

It is important to note that we requested additional time to
comment, in light of SEQRA’s ten-day comment period and the
delay on distribution which reduced that time for two or three
days. This request was denied and we were informed that any
comments submitted after the two or three day effective com-
ment period would not be considered in preparation of the Find-
ings and Conclusions required by SEQRA.

Due to these significant constraints on our ability to review
the report, we cannot comment fully on its accuracy or
thoroughness. We do note, however, that no references are pro-
vided for the majority of the assumptions made in the statistical
analysis, thus questioning the overall credibility cf the study
itself. Nevertheless, we offer the following comment, necessarily
abbreviated for the reasons just discussed:

1. Location of Terminal — The FEIS reiterates the incorrect
allegations that the new facilities are located on the same site
as the existing facilities. (FEIS at 7-7). This is simply not true.
The Terminal has been moved 100 feet further back. The reloca-
tion of the Terminal expands the apron and the area where
planes can park, awaiting movement to the Terminal itself,
which allows the parking of six 737-size aircraft at and around
the Terminal. (See IPM - Babarovic and our comments on DEIS.)

The FEIS persists in stating that there will be room for only
two aircraft at the Terminal. That is not the point. White it is
true that only two aircraft can be parked so that they are at-
tached at the Terminal, the relocation of the Terminal provides
apron parking for four additional aircraft. Thus, these addi-
tional aircraft could be lined up for peak hour use and then be
moved to the Terminal itself to load or unload passengers. This
allows a significant increase in the ability to process passengers
through the Terminal.

Moreover, the placement of the proposed new parking facil-
ity in the hillside — requiring additional costs and disruption of

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the physical environment — would not be required if the Ter-
minal was not relocated 100 feet further back.

2. Misrepresentations of the Midway Decision — The FEIS
repeatedly states that the decision in the Midway case establishes
an uncontestable right of the County to limit the use of the air-
port regardless of its configuration and facilities and the actual
capacity? The Midway decision does no such thing. A
preliminary injunction was denied on the grounds that the
County could prepare a study of the actual capacity of the air-
port facilities, including the Terminal and reasonably limit air-
port use based on the facilities in existence at the time. The deci-
sion nowhere stated that the County could arbitrarily limit use
or access to the airport by the air lines to a level below that of
the actual capacity. Indeed, the decision specifically states that
any limitation on access and use must be reasonable and not
arbitrary and must be based on the actual capacity of the facility.

The proposal for the new Terminal facilities, the modifica-
tions to the taxiways and holding areas, the increased apron and
new cargo handling aids would substantially increase the ac-
tual capacity to process passengers and operations, as set forth
in detail in our original comments. Any limitation to a level of
use below that actual capacity would be in violation of the FAA
rules for non-discrimination, and therefore, would likely be con-
strued as arbitrary.

3. Misrepresentation of FAA Approval — Similarly, the FEIS
repeatedly states that FAA has approved the Terminal Capac-
ity Agreement. This allegation is without any support in the
record, and seems to be misrepresentation. There is no citation
to any document in which the FAA agreed to the terms of the
Agreement. Instead, the FEIS refers back to the preliminary
injunction decision in the Midway case and that fact that the
FAA did not appeal that decision. As stated just above, this
allegation is based on the misrepresentation of the holding in
the Midway case. The Stipulation removed any need to appeal.

* The Midway case is Midway Airlines, Inc. v. County of Westchester, 584
F. Supp. 436 (S.D.N.Y. 1984).

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It was based on capacity at that time. The Agreement was
entered into after the Midway decision and Stipulation. It was
neither executed nor approved by the FAA. There is nothing in
the record which demonstrates that the FAA would agree to the
extension and the application of the Agreement to any airport
whose capacity was greatly expanded.

4. Misrepresentation of the Capacity Agreement — The FEIS
states that the Capacity Agreement will continue in effect
throughout the “forecast period” used in the FEIS — that is,
for 20 to 25 years. Specifically, the FEIS states:

“There is no provision in the new Agreement for ter-
minating the Agreement prior to the end of the
forecast period used in these studies . . . .[The County]
has the right under the Agreement to continue to en-
force both the capacity and the access plan. The on-
ly right the airlines have under the Agreement is to
go to court and attempt that the capacities figure is
unreasonable and arbitrary.” FEIS at 7-13, 7-14.

This conclusory statement is not true. On the contrary, the
Capacity Agreement specifically states:

[T]he Terminal capacity limitation shall expire
January 1, 1995 and shall thereafter be reassessed in
light of experience and conditions current at that time.
If, after such a reassessment, mutual agreement on
capacity is not reached, all parties reserve the right
to take appropriate actions to protect their respective
interests. (Capacity Agreement, Exhibit D to DEIS
at D-3; emphasis added.)

Thus, the Capacity Agreement’s limitations specifically ex-
pire on January 1, 1995. Thereafter, the airlines are free to take
any action whatsoever “to protect their respective interest.” Such
action is not limited to lawsuits, but includes an application to
the FAA under its non-discrimination rules. Most importantly,
any limitations on use and access to the airport are based on
the factual conditions at the “current time.” The rationale for

a

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the limitations now in place would dissolve with the greatly in-
creased capacity of the Terminal and the increased ability of
the airport runways, taxiways and other facilities to process
operations. Thus, the language of the Agreement itself confirms
the holding in the Midway decision that capacity and use limita-
tions must be based on the actual capacities and facilities
available at the airport. That decision, therefore, is the “law
of the case” only insofar as it applies to airport terminal and
other facilities before they are modified and expanded. It pro-
vides no basis whatsoever for any limitation to a specific figure
once those facilities have been modified and expanded. Indeed,
the limitation set forth in the Agreement was based on the
County’s analysis of the capacity of the facilities as they existed
in 1984 and 1985. Therefore, and expansion of the airport's
capacity to handle passengers and operations would necessar-
ily render those limitation arbitrary. Since the limitations were
based on a severely constricted terminal and limited taxiways
and access to the runways, the quadruple size terminal and the
improvements to the taxiways, holding pads and apron park-
ing would make those limitations obsolete. Any attempt to en-
force them in the “current conditions” (i.e., with all of the
modifications proposed in the FEIS and 1986 Update) would
appear to be arbitrary.

Finally, the Agreement applies only to those airlines which
signed it. It does not apply to, for example, American, Delta,
Eastern, the Eastern Shuttle (now the Trump Shuttle) Empire,
or the host of new commuter airlines now operating at New York
area airports.

5. Misrepresentation of Terminal Capacity — The FEIS
reiterates the allegation that the proposed 40,000 square foot
terminal is the “smallest Termim#! that might be considered ac-
ceptable, on the basis of professional criteria, to accommodate
240 passengers per half hour.” (FEIS at 7-14.)

First, there is no statement of whose professional criteria is
being invoked. This is not an inconsequential omission. Indeed,
it is quite significant that the identity of the “new consultant”
is not stated anywhere in the FEIS. It is belaboring the obvious to

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to state that the invocation of “professional criteria” without
identifying the source of that criteria makes it impossible for
us, the FAA or anyone else to comment on or judge the validity
of any evaluation based on those criteria.’

Moreover, the FEIS continues to ignore the fact that “pro-
fessional criteria” of many other professionals, including the
County’s own earlier evaluation, led to significantly different
results and a recommendation for a significantly smaller ter-
minal. Thus, the FEIS does not analyze the purported deficien-
cies of the 16,000 square foot alternative, but merely states that
it is not acceptable to the airlines and otherwise not adequate.

Even more important, the FEIS continues to ignore the study
done by its own consultants in or about 1984 which suggested
that a 20,000-24,000 would be adequate for the same level of
operations and passenger use as the County now states require
a 40,000 square foot terminal. No effort whatsoever is made to
distinguish this earlier recommendation of the County’s own
consultants.

Finally, and perhaps most noteworthy, the FEIS fails to res-
pond to the uncontestable fact that the John Wayne Airport in
California processes almost five million (5,000,000 passengers
per year with a terminal of 27,000 square feet, and is now con-
sidering expansion of its facilities to accommodate 8,000,000
passengers per year. There could be no better argument by any
airline, whether a party to the Capacity Agreement or not, that
a limitation to approximately 2,000,000 passengers per year with
a terminal of 40,000 square feet is arbitrary when 5,000,000
passengers and the concomitant number of operations are
handled a an airport with a terminal two-thirds the size of the
proposed Terminal at Westchester.

* Again, only excerpts of the report are produced in the FEIS and the sources
of cited criteria are often omitted. This further undermines both the reliabilit,
~~ of the report and its criteria and the ability of others to comment thereon.

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THE DEFICIENT DEIS NECESs‘TATES SUPPLEMENTATION

The FEIS contains new information which is at the heart of
the project’s impacts. The FEIS contains, inter alia, what pur-
ports to be a new study on capacity at the terminal facility in
the absence of any limiting agreements. That new information
in itself is of sufficient significance to necessitate supplementa-
tion. (“Supplementation” is this case should entail the reissuance
of the FEIS, as corrected, as « DEIS.)

The New York courts have addressed the question of when
a supplement to a draft or final EIS may be required on a case-
by-case basis as the issue arose in different factual contexts. From
these cases, certain guiding principles have emerged. One prin-
ciple is that a Supplemental EIS (“SEIS”) is required if the DEIS
fails to include a discussion of an issue required by SEQRA. In
Webster Associates v. Town of Webster (“Webster”), 59 N.Y.2d
220, 454 N.Y.S.2d 431 (1983), the Court of Appeals rejected the
argument that a FEIS could cure the deficiencies of a DEIS:

[T]he omission of a required item from a draft EIS
cannot be cured simply by including the item in the
final EIS.

59 N.Y.2d at 228, 464 N.Y.S.2d at 433. The Court reasoned that
although a final EIS must be made available to the public at
least 10 days before the proposal is acted upon, that abbreviated
period cannot substitute for the comprehensive procedures for
public and agency review and comment on a draft EIS. /d.

The importance of including all significant information in the
draft EIS is fully explained in a leading federal case pursuant to
the National Environmental Policy Act (“NEPA”).* Appalachian
Mountain Club v. Brinegar (“Brinegar”), 394 F. Supp. 105 (D.N.H.
1975). In Brinegar the FEIS included traffic data that had been
omitted from the DEIS. The Court, recognizing the impropriety
of that action, enjoined construction of a segment of an interstate
highway pending recirculation of the revised DEIS.

* NEPA, enacted in 1969, was the predicate of SEQRA. See Glen Head-
Glenwood Landing Civic Council, Inc. et al. v. Town of Oyster Bay (“Glen
Head”), 88 A.D.2d 484, 453 NYS. 2d 732, 734 (2d Dept. 1982).

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The Court severely criticized the agency’s attempt to put this
information in the Final EIS and thus circumvent the NEPA
mandates respecting the adequacy of the DEIS:

In the first stage, a draft impact statement is prepared
and circulated to the public and various agencies for
comments and criticisms. This is the vital stage, for
it is here that outside review can vitiate ‘objective er-
rors or excessive bias in an EIS’; 1-29] Why? Associa-
tion, supra, 372 F. Supp. at 258. This is the only time
when the public and outside agencies are able to
closely analyze the impact statement and their com-
ments ... must be included in the final EIS.

Id. at 121 (emphasis added). The Court went on to describe the
differences in the review process between the DEIS and the FEIS
and to point out the dangers of including essential data in the
final EIS for the first time:

There cannot be responsible decision-making when
data appears in the final EIS without being subject
to the critical evaluation that occurs in the draft stage.
There are two dangers that can occur when informa-
tion appears in the final 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) objective errors without being red-flagged would
go unnoticed. It is for these reasons that . . . [a] sup-
plemental statement is to be processed in the same
manner as a new environmental! statement. 23 C.F.R.
§1.38 p. 20 (1974).

Supplemental information, which has not been pro-
cessed in the same manner as a draft EIS, cannot
resurrect a deficient impact statement. ]-29 Why?
Association, supra, 372 F.Supp. at 253-260.

Id. at 121-122 (emphasis supplied) (footnotes omitted). See also
Essex County Preservation Association v. Campbell, 399 F.Supp.
208, 215-16 (D. Mass. 1975), aff'd, 536 F.2d 956 (1st Cir. 1976).

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In another analogous case under NEPA, Natural Resources
Defense Council, Inc. v. Morton, 337 F. Supp. 170 (D.D.C. 1972),
essential data was also omitted from a DEIS. The Court refused
to dissolve a preliminary injunction enjoining the sale of cer-
tain oil and gas leases where an addendum prepared to remedy
the deficient DEIS had not been subject to the comment and
review procedures. The Court held that the addendum had to
be recirculated, despite any attendant delays or difficulties. 337
F.Supp. at 172.

The same logic applies to SEQRA. Webster, supra. Indeed,
this principle is more applicable to SEQRA because the time
which an agency has between the issuance of the FEIS and final
decision is much longer under NEPA (30 days) than under
SEQRA (10 days). (See 40 C.F.R. §1506.10(b) and 6 N.Y.C.R.R.
§§617.9, 617.10, respectively). This more abbreviated time for
public and agency comment on the final EIS reinforces the
critical nature of the draft impact statement. See Webster, supra,
59 N.Y.2d at 228.

The need for an SEIS also arises if newly discovered infor-
mation renders the EIS inadequate. In Glen Head, the DEIS
for a proposed condominium development indicated that the
City of Glen Cove had orally committed to a tie-in with its
sewerage treatment facilities. After SEQRA findings were made
in reliance on this representation, it was ascertained that Glen
Cove had not approved the tie-in and that the DEC had rejected
the alternatives to the Glen Cove system. The Court held that
an SEIS analyzing the project in light of the new information
should have been circulated and reviewed in the same manner
as the DEIS. 453 N.Y.S.2d at 739.

The holdings of Webster and Glen Head — that an SEIS
should be prepared when the DEIS omits information required
by SEQRA or new information is discovered subsequent to the
filing of a DEIS — was confirmed in Horn v. IBM (“Horn”),
110 A.D.2d 87, 493 N.Y.S.2d 184 (2d Dept. 1985), appeal denied,
67 N.Y.2d 602, 499 N.Y.S. 1027 (1986):

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The law recognizes that in situations in which
significantly new information has been discovered
subsequent to the filing of a draft EIS, which new in-
formation is relevant to the environmental impact of
the proposed action, a supplemental EIS containing
this information should be circulated to the relevant
agencies so as to insure that the decision making
authorities are well informed (Glen Head-Glenwood
Landing Civic Council v. Town of Oyster Bay, 88
A.D.2d 484, 453 N.Y.S.2d 732, supra). In this regard, ~
the courts have cautioned that the omission of required
information from the draft EIS cannot be cured by
simply including the required data in the final EIS
since the abbreviated comment period for the final

hi EIS “is not a substitute for the extended period and
comprehensive procedures for public and agency
scrutiny of and comment on the draft EIS” (Webster
Assoc. v. Town of Webster, 59 N.Y.2d 220, 228, 464
N.Y.S.2d 431, 451 N.E.2d 189, supra).

493 N.Y.S.2d at 192.

The June 1987 SEQRA regulations provide in 6 N.Y.C.R.R.
§617.8(g) for the supplementation of draft or final environmental
impact statements. These codify the case law regarding SEQRA.
As explained in the FEIS for the new regulations (at 27)

Court decisions such as Webster Assoc. v. Town of
Webster, supra, Glen Head/Glenwood Landing Civic
Association v. Town of Oyster Bay, supra, and Horn
v. 1.B.M., 110 A.D.2nd 87 have provided guidance on
when a supplement is required. That guidance has
been incorporated into this subdivision.

INADEQUATE DISCUSSION OF CUMULATIVE
EFFECTS AND SEGMENTATION

Under NEPA, SEQRA and the FAA regulations, an en-
vironmental assessment must examine the cumulative en-
vironmental effects of a proposed action when added to other

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past, present and reasonably foreseeable future actions. (40 CFR
§1508.7; 6 N.Y.C.R.R. §617.11(b); FAA Order §26(a).

In the 1987 GEIS, the County assured the FAA that it would
address all effects in the specific EISs to follow. E.g. GEIS at
7-1 to 7-4. The FEIS does not augment the DEIS’ lack of analysis
of cumulative effects but asserts that cumulative effects were
in fact addressed in the GEIS. The County cannot defer con-
sideration of cumulative effects in the GEIS and then proclaim
that this analysis was, in fact, completed.

Similarly, the FEIS simply refers back to the Update in the
issue of segmentation. This is totally inadequate. The Update
referred to a series of further analyses. These have not been com-
pleted. Nevertheless, the County intends (apparently) to pro-
ceed with construction of the Terminal Project before any overall
analysis is made of the effects of the myriad actions listed in
the Update. This is precisely what the segmentation doctrine
is designed to prohibit — implementation of a part of a single,
integrated project before the effects of the entire project have
been evaluated.

Thus, even if the FEIS for the Terminal expansion was com-
plete and adequate for the Terminal segmant of the entire air-
port expansion (which it is not), it is patently improper for the
County to implement (or for the FAA to fund) the Terminal ex-
pansion without an over-all analysis of the effects of “se whole
airport expansion project.

Thus, for example, the FEIS is not responsive to comments
noting that consideration has not been given to the corporate
hangars which are included as part of the project. The FEIS
does not analyze:

1. why these hangars are necessary, if
demand is limited to that which is
projected;

2. the growth inducing effects of such

enhanced facilities on:

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— airport use, noise, traffic

— corporate office development in the surroun-
ding area and the consequent socio-
economic effects and effects on traffic and
other environmental concerns.

Also, the FEIS does not analyze how the pending activities
planned for the airport — such as the change in taxiway exits
and holding pads — will impact with the quadruple size ter-
minal to cumulatively effect operations or capability to handle
larger passenger volume. The Update acknowledged that the
taxiway and related changes would increase capacity. (Update
at 3-2). However, no consideration is given in the FEIS to these
subsequent related activities which are included in the long-
range master plan for the area.

INADEQUATE CONSIDERATION OF ECONOMICS

The FEIS is similarly unresponsive to comments questioning
the financing of the Terminal Project. The Master Plan Update
deferred any analysis of the economics of the terminal expan-
sion project stating that the terminal area development was to
be analyzed in separate studies to follow. The FEIS now attempts
to allege that the Update included a complete economic analysis
of the new Terminal building.

The Update, however, specifically deferred analysis of the ter-
minal project and, in fact, stated that it was likely the terminal
area-related net income would not be sufficient to finance the
terminal facility improvements. (Update at 6-14). Indeed, the
portions of the Update cited and quoted by the FEIS refer to
analyses for financing “non-Terminal improvements” (Update
quoted in FEIS at 7-40; emphasis added). This explicitly con-
tradicts the allegation that an economic analysis of the Terminal
Expansion was made in the Update. In fact, no such analysis
has been made public in Update. The FEIS or anywhere else,
despite the representation in the Update that such analysis would
be provided in the EIS for the Terminal expansion.

OO

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Moreover, the FEIS also states that a revenue bond financ-
ing approach is being considered. This is precisely the type of
information which must be supplied in an EIS — together with
the economic analysis which might support that approach. The
failure to provide such information combined with the
statements in the Update indicating that the Terminal opera-
tion would not be self-supporting at the current level of activ-
ity, is very weighty evidence that the County is planning on an
expansion of activity to generate funds sufficient to finance the
Terminal expansion. Any contrary conclusion could be supported
only by an economic analysis — which is precisely what has
been withheld.

In sum, the FEIS clearly does not provide a detailed analysis
of any irretrievable commitment of resources as required by
NEPA, SEQRA and the FAA regulations. (42 U.S.C.
; §4332(2)(C)(v); 40 CFR §1502.16; 6 N.Y.C.R.R. §617.14(6); FAA
Order §85).

INADEQUATE DISCUSSION OF ALTERNATIVES

The FEIS is completely unresponsive to comments address-
ing inadequacies in this area. Instead of substantive analysis the
FEIS states that “Long, open, public discussion of alternatives
have been considered” at public meetings. While a number of
alternatives to the terminal facilities project have been submit-
ted to the County, neither the DEIS nor FEIS provides any
reasoned analysis to illustr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2884%3A1. Public record. Not legal advice.