3 F. Supp. 3d 129
S.D.N.Y.2014Background
- Paskar and FOLA sue City of New York and DSNY alleging NSMTS near LaGuardia creates aviation hazards and violates RCRA and related federal regs.
- Plaintiffs contend NSMTS near Runway 31 would attract birds, increasing bird-strike risk.
- Defendants move to dismiss: NSMTS is not an MSWLF regulated by 40 C.F.R. Part 258 and no private FAA action exists under 49 U.S.C. § 44718(a).
- Court grants motion to dismiss due to lack of RCRA MSWLF jurisdiction and absence of private right of action under § 44718(a).
- Prior related actions include FAA challenges and Article 78 proceedings, none successful; Fourth action seeks review of FAA-related determinations, now resolved against plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NSMTS is a MSWLF under RCRA | Paskar/FOLA contend NSMTS is a MSWLF and subject to 40 C.F.R. § 258.10. | Defendants say transfer stations are not landfills and not federally regulated under Part 258. | Not a MSWLF; transfer station is not a permanent disposal site. |
| Whether there is a private right of action under 49 U.S.C. § 44718(a) | Plaintiffs imply a private right to enforce § 44718(a). | No private right of action exists; remedy lies with the Secretary of Transportation. | No private right of action; claim dismissed. |
| Whether FAA September 2, 2010 letter constitutes a final order subject to review | City/FAA letter challenged as final agency action. | Letter is not a final order; not reviewable. | Letter not a final order; action moot. |
Key Cases Cited
- Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir.1986) (no private right of action implied in FAA enforcement)
- ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir.2007) (pleading standard for plausibility under Twombly/Iqbal)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for complaint adequacy)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading)
- Paskar v. United States Dep’t of Transp., 714 F.3d 90 (2d Cir.2013) (FAA-related review of NSMTS, panel held recommendations not binding)