Paskar et al v. The City of New York et al

Filing 40

OPINION & ORDER re: 30 FIRST MOTION to Dismiss filed by The City of New York. The City's motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is granted and the Amended Complaint is dismissed. The Clerk of Court is directed to enter judgment and close this case. (Signed by Judge Paul A. Crotty on 3/10/2014) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DOC ,!:
DATE FiLED:

"3 - I 0-1

KENNETH D. PASKAR and FRIENDS OF
LAGUARDIA AIRPORT, INC.,
Plaintiffs,

13 Civ. 5897 (PAC)
OPINION & ORDER

-againstTHE CITY OF NEW YORK and NEW YORK
CITY DEPARTMENT OF SAN ITATION,
Defendants.

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HONORABLE PAUL A. CROTTY, Un ited States District Judge:
Plaintiffs Kenneth D. Paskar and Friends of LaGuardia Airport, Inc. ("FOLA") (a
not-for-profit corporation which advocates for the elimination of aviation safety hazards- Mr.
Paskar is the President), bring this action against the City of New York and the New York City
Department of Sanitation ("DSNY")(collectively, "Defendants"), claiming that the construction
and operation of the North Shore Marine Transfer Station in College Point, Queens, im mediately
across Flushing Bay from LaGuardia Airport, violates the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. § 6972(a)(1 )(A).l They seek declaratory and injunctive relief because
of the City's and DSNY 's alleged failure to comply with 40 C.F.R. § 258.10 2 and 49 U.S.C. §

I 42 U .S.C. § 6972(a) provides that "any person may commence a civi l action on his own behalf against any person .
. . who is alleged to be in violation of any pennit, standard, regul ation ... wbich bas become effective pursuant to
th is chapter. ..."

40 C.F.R. § 258.10 provides that prior to the construction of a solid waste facility that is within five miles of an
airport, the owner of the facili ty must take cenain actions, including demonstrating that the solid waste facility will
not pose a bird strike hazard to aircraft.

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44718(a) 3 (Am. Compl., '1l'12, 3). Plaintiff alleges that the construction and operation of the
North Shore Marine Transfer Station ("NSMTS") is "an aviation hazard due to the fact it will
increase the risk of bird strikes" (Am. Compl., '1l3); and "building a garbage dump at the end of
Runway 31 at LaGuardia is a ludicrous idea." (PI. Opp. Memo. at 3.) The gravamen ofMr.
Paskar's and FOLA 's complaint is that the garbage and waste received and processed at the
NSMTS will attract birds which will in tum cause airplanes to fall " from the sky due to a bird
strike at LaGuardia.,,4 (Id. at 4). Review of the construction and operation of the facility is
sought because the facility allegedly violates the RCRA.
Defendants move to dismiss the Amended Complaint for two reasons: (1) the
transfer facility is not a municipal solid waste landfill ("MSWLF"), and is not subject to 40
C.F.R. 258; and (2) in any event, there is no private right of action to enforce 49 U.S.C. §
447l8(a)(l) and (2). Plaintiffs respond that (1) the allegation that the North Shore Marine
Transfer Station meets the definition of a landfill under the RCRA and should be regulated as
such, raises a question of fact sufficient to survive a motion to dismiss; and (2) though not
explicit, there is an implied private right of action under 49 U.S.C. § 447l8(a)(l) and (2).
For the reasons that follow, Defendants' motion is granted.

BACKGROUND
This is not Plaintiffs' first trip to the Courthouse to stop the construction of the
NSMTS. Similar arguments have been made to federal and state courts, as well as federal and
state agencies on four prior occasions. None has been successful. In order to put the cun-ent
pleading in context, however, each of them is briefly summarized:
349 USC. § 44718(a) provides that the "Secretary of Transportation shall require a person to give adequate public
notice ... of the construction, alteration, .. or expansion ... ofa structure or sanitary landtill .... " Sanitary
landfills are defined as faciliti es receiving "putrescible waste", 49 U.S.C. § 44718(d)(I).
4 A "bird strike" occurs when a plane hits a bird while the plane is in flight. It is a serious flight hazard.

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(I)

Plaintiffs initiated an administrative challenge before the Federal Aviation

Agency ("FAA"), pursuant to 14 C.F.R. Pat1 16, claiming that the City's construction of the
NSMTS violated various assurances made in agreements between the FAA and the Port
Authority of N.Y. and N.J. ("Port Authority") for funding of LaGuardia Airport. The FAA
found that the City was neither a signatory nor a party to the grant agreements, nor was the City a
proper "respondent" under 14 C.F.R. § 16.3. While the City owns the land on which LaGuardia
Airport is built, it is neither a sponsor nor an operator of the airport within the meaning of the
regulation.
Upon review of the FAA's administrative determination, the Second Circuit held
that
[The FAA's] factual findings were supported by substantial
evidence, and its application of the law to the facts is not arbitrary
or capricious, or an abuse of discretion, or otherwise contrary to
law ... . Although the City owns the land upon which LaGuardia
Airport sits, the Port Authority is the operator of LaGuardia and
leases the land from the City. The City does not qualifY as a
' sponsor' under the terms of the grant agreement, statute, see 49
U.S.c. § 47102(26) or regulations, see 14 C.F.R. § 16.3, because it
is not an agency that receives financial assistance from the FAA.
The City is not a 'proprietor' because ownership alone is not
sufficient to warrant proprietor status as the City does not ' operate'
the airport.
Paskar v. F.A.A., 478 F. App'x 707, 708 (2d Cir. 2012).
(2)

Plaintiffs initiated an Article 78 proceeding against the New York State

Department of Environmental Conservation ("DEC") and DSNY in December, 2010. Plaintiffs
complained of the on-going construction of the NSMTS, especially in light of the hazard of bird
strikes. In that connection, Plaintiffs cited the bird strikes that occUlTed at LaGuardia when
migratory birds collided with U.S. Airways, Flight 1548, upon takeoff on January 15, 2009. But
for the great skills of the captain, co-captain and the crew, the flight would have ended in

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disaster, instead of resulting in the "Miracle on the Hudson." Notwithstanding this vivid
example of the danger of bird strikes, the DEC refused Plaintiffs' demand to conduct further
studies before proceeding with the construction of the NSMTS. Instead of doing an entire
reanalysis, DEC merely modified its permit to include DSNY's agreement to amend the DEC
pennit to include airways' warning lights of the NSMTS.
The New York State Supreme Court held that FOLA had no standing to
commence and maintain the action against the City since it was not incorporated at the time
Paskar commenced the Article 78 proceeding. Wlnle Mr. Paskar had standing to challenge the
DEC's failure to respond to his November 12, 2010 letter demanding that DEC conduct a new
study, Mr. Paskar could not "compel the DEC or the DSNY to act in any particular manner in
connection with the subject permit ... . [I]t is for the DEC, and not the Court, to determine
whether a permit issued by said agency should [be] modified, suspended, or revoked. " Paskar v.
Dep ' t of Envtl. Conservation, 33 Misc. 3d l226(A), at *5--6 (N.Y. Sup. Ct. Queens Cnty. 2011).
Mr. Paskar' s petition was dismissed. Id. at *6.
(3)

Last year, the Second Circuit considered whether tbe FAA's September 2,2010

letter to the City of New York constituted a final order subject to review, as Mr. Paskar and
FOLA contended; or not a final order, and therefore beyond the Court's jurisdiction to review.
Tbe FAA's letter agreed with an expert panel ' s conclusion that the City'S plans to construct and
operate a marine transfer station in College Point, Queens (in the immediate vicinity of
LaGuardia Airport) would be compatible with safe air operations, as long as several
recommendations are followed.
That detennination was based on a record which included actions the City took
after tbe FAA conducted aeronautical studies. In 2006, the City agreed to reduce the height of the

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proposed transfer facility from 110' to 100' and to move the facility out of the runway protection
zone. The Port Authority, LaGuardia's operator, accepted the changes and withdrew its petition
for review. When the City altered its design of the NSMTS, the FAA conducted another
aeronautical study. On September 19, 2008, the FAA issued a No Hazard determination, so long
as the facility was equipped with proper lighting.
Four months after the second No Hazard determination, in January, 2009, U.S.
Airways Flight 1549, while on take-off from LaGuardia, flew into a flock of migrating birds,
resulting in what would have been a disaster, but for the highly skilled and heroic actions of the
pilot, co-pilot and flight crew. Opponents of the NSMTS seized on the near-disaster to renew
arguments against the NSMTS : that the facility would attract birds which would increase the risk
of bird strikes, and perhaps result in plane crashes.

In the fall of2009, the Secretary of Transportation convened a panel of expelts,
including the FAA, USDA, U.S. Air Force, as well as state and local agencies, to review and
study the impact of the NSMTS on the safe operations at LaGuardia. The panel issued its report
on September 2, 20 I 0, concluding that the transfer station is compatible with safe air operations,
so long as it is constructed and operated in accordance with the expert panel ' s recommendations.
The City accepted the panel's recommendations and proceeded with the construction in
accordance with the recommendations.
Mr. Paskar and FOLA sought review of the September 2, 2010 letter.
Respondents DOTIFAA, and the City as intervener, moved to dismiss. A motion panel of the
Second Circuit denied the motion to dismiss, holding that the September 2,2010 letter was an
"Order" and appropriate for review. Paskar v. United States Dep't ofTransp., 2011 U.S. App.
LEXIS 26564, at 2 (2d Cir. Apr. 6, 2011). The merits panel, however, disagreed, and held that

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the September 2, 2010 FAA letter was not a final order. The Court construed the September 2,
20 10 expert panel's report as a recommendation which "imposed no obligation, denied no right,
and fixed no legal relationship." Paskar v. United States Dep 't of Transp., 714 F.3d 90, 97 (2d
Cir. 20 13). The City could have accepted or rejected the expert panel 's recommendation
"without recourse by any party," Id. at 96:
" In the present case, the FAA letter does not pose a practical
' stumbling block' to the construction of the North Shore Station.
The letter is not a No Hazard determination. FAA aeronautical
studies in 2006 and 2008 had already detennined that the Station
posed No Hazard to air navigation. The panel report was
consistent with those determinations, and neither created, nor
removed, a ' stumbling block.' Nothing in the recommendations of
the panel, or the Letter, ordered the City to do anything, or to desist
from doing anything. No other regulatory agency awaited the
issuance of the panel report, and no financing or insurance was
conditioned on the content of the Letter."
Id. at 99.
(4)

The fourth and final action is an Article 78 proceeding initiated by Mr. Paskar and

FOLA against the NYS Department of Environmental Conservation, Joseph Martens and DSNY.
On February 5, 2013, counsel for Mr. Paskar and FOLA withdrew the petition. See
Paskar v. Dep ' t Envtl. Conservation, No. 10407612012, at 3 (N.Y. Sup. Ct. New York Cnty. Feb.
8,2013). New York Supreme Court Justice Peter H. Moulton filed an order stating: "Article 78
Proceeding is Withdrawn." Id. at I.
Having summarized these prior administrative and judicial actions, we turn to the
Plaintiffs' fifth action to stop that portion of the City's Solid Waste Management Plan which
calls for the shipping of residential garbage created in the Borough of Queens, via a Marine
Transfer Station built on the shoreline of Flushing Bay, just across from LaGuardia AirpOli.

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DISCUSSION
I. Legal Standard
Onder Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a Complaint if a
plaintifffaiis to "provide the grounds upon which his claim rests through factual allegations
sufficient ' to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc, v. Shaar
Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Com. v. Twombly, 550 U.S . 544,
555 (2007)). Plaintiffs must allege '''enough facts to state a claim to relief that is plausible on its
face. '" Starry. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly,
550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must accept as true all wellpleaded factual allegations and draw all inferences in a plaintiffs favor. See Allaire Com. v.
Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). Allegations that are merely conclusory are "not
entitled to be assumed true." Iqbal, 556 U.S. at 680.
In evaluating a motion to dismiss, the Court "may consider any written instrument
attached to the complaint, statements or documents incorporated into the complaint by reference
... and documents possessed by or known to the plaintiff and upon which [he1relied in bringing
the suit." ATSI, 493 F.3d at 98. "CoUl1s may also properly consider 'matters of which judicial
notice may be taken, or documents either in plaintiffs' possession or of which plaintiffs had
knowledge and relied on in bringing suit. " , Halebian v. Berv, 644 F.3d 122, 131 n. 7 (2d Cir.
2011). "Judicial notice may encompass the status of other lawsuits in other courts and the
substance of papers filed in those actions. " Schenk v. Citibank, No. 10- CV- 5056, 2010 WL
5094360, at *2 (S.D.N.Y. Dec. 9, 2010). Official govemmentreports and other types of

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government records are appropriate for judicial notice. See B.T. Produce Co. v. Robert A.
Johnson Sales, Inc., 354 F. Supp. 2d 284, 285 (S .D.N.Y. 2004); Massachusetts v. Westcott, 43 I

U.S. 322 (1977).
II. Analysis
1. The North Shore Marine Transfer Facility Is Not Subject to RCRA Part 258

Plaintiffs argue that the North Shore Marine Transfer Station is regulated under
the Resource Conservation and Recovery Act ("RCRA") as a municipal solid waste landfill.
Plaintiffs submit that "the North Shore MTS is a 'MSWLF ' unit, as that term is defined in 40
C.F.R. § 258.2 such that the City is required to comply with 40 C.F.R. § 258.10." (PI. Opp.
Memo. at 9). The Amended Complaint alleges precisely that, at paragraph 47. 5 Plaintiffs argue
that, because they have alleged that the marine transfer station is a landfill, they have alleged
facts that, if true, state a cause of action; thus, their claim is sufficient to survive a motion to
dismiss.
Whether transfer stations are municipal solid waste landfills, and therefore subject
to the RCRA, is a question oflaw. The answer to the question is clear: they are not. Transfer
stations are distinct from landfills in that they receive waste only temporarily for the purpose of
packaging and transporting it to permanent disposal sites. 40 C.F .R. deals with "Protection of
Environment" and sets forth the rules and regulations of the Enviromnental Protection Agency,
promUlgated pursuant to the RCRA, among other statutes, governing radiation protection (40
C.F.R. § 190-197); noise abatement (40 C.F.R. § 201-21 I); ocean dumping (40 C.F.R. § 220238); and solid wastes (40 C.F.R. § 239-258). Part 243 provides Guidelines for "the storage and
collection of residential, commercial and industrial solid waste." The regulations cover the
See Complaint at ~ 47 (" As described in ~'1 16-41 above, the proposed N0I1h Shore MIS is a MSWLF unit that is
proposed to be located within 10,000 feet of an airport that uses turbojet or piston type aircraft." )

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generation of solid waste, its collection (including how it is to be collected) and the storage of
solid waste prior to ultimate disposition. In that connection, it defines a transfer station as "a site
at which solid wastes are concentrated for transport to a processing facility or land disposal site.
A transfer station may be fixed or mobile." 40 C.F.R. § 243.1 01(dd).
The definition of the term "transfer stations" in the regulations must be borne in
mind when considering other facilities. The EPA has prepared a 50-page manual with a 10-page
Appendix, entitled "Waste Transfer Stations: A Manual for Decision-Making" (the "Manual").
u.s. Envtl. Prot. Agency, Waste Transfer Stations: A Manual for Decision-Making 49 (2002),
available at http://www.epa.gov/osw/nonhaz/municipal/pubsll 02D02.pdf (last accessed Mar. 5,
2014). The EPA's Manual describes what waste transfer stations are, and by implication, what
they are not:
[AJll [waste transfer stations] serve the same basic purposeconsolidating waste from multiple collection vehicles into larger
high volume transfer vehicles for more economical shipment to
district disposal sites ... [AJ transfer station is a facility with a
designated receiving area where waste collection vehicles
discharge their loads. The waste is often compacted, then loaded
into larger vehicles (usually transfer trailers, but intermediate
containers, railway, and barges are also used) for long haul
shipments to a final disposal site-typically a landfill, waste to
energy plant, or a composting facility. No long-term storage of
waste occurs at a transfer station; waste is quickly consolidated and
loaded into a larger vehicle and moved off site, usually in a matter
of hours.

Manual at 1-2. The EPA has provided further guidance on what a transfer station is, stating
" Waste transfer stations are facilities where municipal solid waste is unloaded from collection
vehicles and briefly held while it is reloaded onto larger long-distance transport vehicles for
shipment to landfills or other treatment or disposal facilities." Transfer Stations, u.S. Envtl. Prot.

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Agency (Jan. 10, 2014), http://www.epa.gov/epawaste/nonhaz/municipal/transfer.htm.)
(emphasis added).
As the regulations define the term "Transfer station," they also define the tenn
"Landfill." 40 C.F.R. § 257.2 defines "Landfill" as "an area ofland or an excavation in which
wastes are placed for permanent disposal, and that is not a land application unit, surface
impoundment, injection well, or waste pile." Hence, while a transfer station only temporarily
stores waste so that it can be transferred to another facility, a landfill disposes of waste
permanently.
Plaintiffs attempt to avoid the obvious by arguing that nothing in the definition of
a municipal solid waste landfill unit states that it "has to be a 'landfill '" or that it must dispose of
household waste. (PI. Opp. Mem. at 12.) Plaintiffs cite 40 C.F.R. 258.2 for their definition ofa
MSWLF unit. They claim that a transfer station meets the basic definition of a MSWLF unit,
which is "a discrete area ofland or an excavation that receives household waste." 40 C.F.R.
258.2.
Plaintiffs' claim is meritless. Municipal soEd waste landfills are, as both their
title and common sense suggests, a type of landfill under the regulations. Plaintiffs conveniently
neglect to mention that the same definition of MSWLF unit which they cite states "Such a
landfill may be publicly or privately owned." 40 C.F.R. § 258.2 (emphasis added). The
definition of an MSWLF, therefore, incorporates the definition of a landfill by reference. As
such, municipal so lid waste landfills must be "areas ofland in which wastes are placed for
permanent disposal." A transfer station is not an MSWLF because a transfer station does not
permanentl y dispose of waste.

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In a last-ditch attempt to avoid this conclusion, Plaintiff implies in a footnote in
its opposition brief that the definition of a landfill is inapplicable to MSWLFs as defined in Pat1
258 because "landfill" is not defined in Pat1 258, bur rather in Part 257. This argument also
lacks merit. The telms MSWLF unit and "landfill" are both defined in the same section of the
regulations: Part 257. The definition of a MSWLF unit in Pm 258 which Plaintiff cites is
identical to Part 257's definition. It would defy logic and basic principles of statutory
interpretation to say that one definition should be interpreted differently from the other, which is
contained in the same set of regulations and uses the exact same language.
Furthelmore, the EPA has explicitly said that "No federal regulations exist that
are specifically applicable to transfer stations." Manual 6 at 49 (emphasis added). While waste
transfer stations are not subject to federal regulation, that does not mean that they are
unregulated. Indeed, waste transfer stations are denominated and closely regulated in New York
by the New York State Department of Environmental Conservation.
In sum, the two concepts-transfer stations and landfills- are quite different, and
there is nothing in 40 C.F .R. Part 258 that supports or even suggests that a transfer station can
become a landfill simply because it is located close to an airport. There are three other marine
transfer stations in New York City, and dozens of land-based transfer stations, and no one has
considered calling them landfills. Definitions are not as malleable as Plaintiffs assert. Since
transfer stations are not federally regulated as such, it would be anomalous to regulate them as
landfills, and Plaintiffs' wholly implausible analysis does not change this.
According to Plaintiffs the question of whether this particular marine transfer
station is tmly a transfer station or is instead a landfill is a question of fact, because that is what
The EPA website cites the Manual as the most current EPA document on waste transfer stations. See Transfer
Stations, U.S . Envtl. Prot. Agency (Jan. 10, 2014), http://www.epa.gov/epawaste/nonhazimunicipal/transfer.htm
(last accessed Mar. 5, 20 14).

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they have alleged. But Plaintiffs ' allegations cannot transmogrify a marine transfer station into a
solid waste landfill. Plaintiffs' allegations that the North Shore Marine Transfer Station is really
a landfill masquerading under the wrong name are conc1usory and do not meet the plausibility
standard of Twombly and Iqbal. Indeed, the NSMTS has been built and permitted by the state,
but Plaintiffs have alleged no facts to support that the transfer station will be anything other than
what it is. 8 The NSMTS , which collects and consolidates waste for transport to a processing
facility or land disposal site, fits squarely into the definition of a transfer station, and is not
subject to federal regulation.

2. PlaintifPs 49 U.S.c. § 44718 Claims Fail as a Matter of Law
Plaintiffs allege a violation of the Federal Aviation Act, 49 U.S.c. §§
44718(a)(I) and (2), which provides:
(a) Notice - By regulation or by order when necessary, the
Secretary of Transportation shall require a person to give adequate
public notice, in the form and way the Secretary prescribes, of the
construction, alteration, establishment, or expansion, or the
proposed construction, alteration, establishment, or expansion, of a
structure or sanitary landfill when the notice will promoter(I) safety in air commerce; and
(2) the efficient use and preservation of the navigable airspace and of airport
traffic capacity at public-use airports.
There is no violation of the cited statute.
First, the Federal Aviation Act does not create a private right of action, either
explicitly or implicitly. See Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 , 97 (2d Cir.
1986); Spinner v. Verbidge, 125 F.Supp.2d 45,51 (E.D.N.Y. 2000) (analyzing the FAA's
legislative history and enforcement provisions, and holding "[a1private right of action, in short,
was neither intended by Congress, either explicitly or implicitly, nor is inferring such a remedy

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Any further discovery on the issue would be futile, and Plaintiffs are denied leave to amend the Complaint.

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generally consistent with the legislative scheme of the FAA"). Since there is no private right of
action, Plaintiffs cannot enforce the Act.
Second, the Act directs the Secretary of Transportation to issue orders and/or
regulations concerning air safety. See 49 U.S.C. § 44718(a). [fthe statute has been violated, the
remedy would be against the Transportation Secretary, not the City.
Finally, the Secretary has promulgated regulations, set forth at 14 C.F.R. Part
77.10 Furthermore, the Secretary conducted appropriate proceedings starting as early as
November 2004, when the City provided notice to the FAA of its intentions to reconstruct and
operate the North Shore Marine Transfer Station. Thereafter, the FAA initiated numerous
studies and regulatory proceedings.ll See Paskar v. United States Dep' t ofTransp., 714 F.3d 90
(2d Cir. 2013). Plaintiffs action to compel these activities is therefore moot.

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§ 77.1 Purpose.

This part establishes:
(a) The requirements to provide notice to the FAA of certain proposed construction, or the
alteration of existing structures;
(b) The standards used to determine obstructions to air navigation, and navigational and
conununication facilities;
(c) The process for aeronautical studies of obstructions to air navigation or navigational facilities
to determine the effect on the safe and efficient use of navigable airspace, air navigation facilities
or equipment; and
(d) The process to petition the FAA for discretionary revjew of detenninations, revisions, and
extensions of determinations.
II The FAA conducted aeronautical studies in 2006 and 2008, both of which resulted in findings that the North
Shore Marine Transfer Station created "No Hazard" to air navigation. Paskar v. United States Dep' t of Transp., 714
F.3d at 93. In the wake of the "Miracle on the Hudson," the FAA made a showing that it complied with an FAA
Advisory Circular that states that enclosed waste-handling facilities, when not located within the Runway Protection
Zone or on airport property, are compatible with safe airport operations. Id. In 2009, the Secretary of
Transportation Ray LaHood appointed an expert panel consisting of FAA, USDA, Port Authority, City, and other
experts to assess the transfer station's safety. Id. at 94. The panel's report was issued in 2010. Id. In September of
2012, the FAA, in a detailed Directors ' Determination, thoroughly addressed Plaintiffs' Complaint against the Port
Authority, which alleged that the creation of the North Shore Marine Transfer Station created unsafe conditions at
laGuardia and that building the MTS violated FAA policies, standards, and specifications. See generally Paskar v.
Port Authority of New York and New Jersey. FAA Director Determination, Docket 16-11-04 (Sep. 27,2012). The
FAA Director determined in a methodical analysis that the creation of the transfer station does not create an airport
hazard and the Port Authority is in compliance with all Grant Assurances. Id.

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CONCLUSION

The City's motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure is granted and the Amended Complaint is dismissed. The Clerk of Court is directed to
enter judgment and close this case.

Dated: New York, New York
March 10, 2014

SO ORDERED

PAUL A. CROTTY
United States District Judge

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