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BFI Waste Sys. of N. Am., Inc. v. Federal Aviation Admin.

Citation: 32 ELR 20723
No. No. 01-1152, 293 F.3d 527/(D.C. Cir., 06/18/2002)

The court holds that the Federal Aviation Administration (FAA) was arbitrary and capricious in determining that a waste disposal company's proposed landfill expansion near an airport would be a hazard to air navigation. Under the Federal Aviation Act, accompanying regulations, and the FAA handbook, the FAA is authorized to determine whether a proposed construction or alteration project will present a hazard to air navigation. The waste disposal company sought the FAA's opinion on the impacts of the company's proposed landfill expansion, and the FAA's determination identified five adverse impacts on the safe and efficient use of navigable airspace. The FAA subsequently affirmed its hazard determination.

The court first holds that the waste disposal company has standing. The company demonstrated that it faces a concrete, imminent injury from the reopening and modification of the state and local approvals of the landfill as a result of the FAA's hazard determination.

The court next holds that the FAA acted arbitrarily and capriciously and violated its own standards in affirming its initial hazard determination. The FAA conducted an aeronautical study on the impacts of the proposed project without providing notice to interested parties or negotiating with the company to identify mitigation measures that could eliminate purported adverse effects, as it is directed to do by its regulations. Additionally, the court holds that the FAA was arbitrary and capricious in failing, without explanation, to give the company notice of two new issues it ultimately relied on in affirming the initial hazard determination. When the FAA decides to conduct a review without a hearing, as it did here, the FAA handbook requires it to advise interested parties of the specific issues to be considered. The court also holds that the FAA's factual conclusions about the proposed landfill expansion were flawed. The findings of adverse impact upon which the FAA affirmed its hazard determination are unsupported by substantial evidence in the record. The court therefore vacated the determination and affirmation and remanded the case to the FAA to reconsider the company's proposal.

A judge dissenting in part and concurring in part would hold that the FAA was not arbitrary and capricious in conducting an aeronautical study without giving notice to interested parties and without negotiating with the company to identify mitigation measures.

Counsel for Petitioner
Michael S. McCarthy
Faegre & Benson
370 17th St., Denver CO 80202
(303) 592-9000

Counsel for Respondent
Jeffrica J. Lee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Henderson, J. Before Sentelle, J., with Tatel, J., concurring in part and dissenting in part.