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March 31, 1999


The opinion of the court was delivered by: McLAUGHLIN, District Judge.


Plaintiff Khodara Environmental, Inc., general partner acting on behalf of Eagle Environmental, L.P. (collectively referred to as "Eagle" or "Plaintiff") commenced the instant action on April 25, 1997 seeking, primarily, a declaration that Section 1220 of the Federal Aviation Reauthorization Act of 1996, as amended, 49 U.S.C. § 44718(d) (hereinafter, the "FAA Amendment") is unconstitutional. Plaintiff has named various local, state and federal entities and/or officials as Defendants. The dispute arises out of Eagle's as yet unsuccessful efforts to construct and operate a landfill on property located in Jefferson County, Pennsylvania near the Dubois-Jefferson County Airport.

Presently pending before the Court are multiple motions and cross-motions for summary judgment filed by the parties and a motion to dismiss filed by Intervenors Jefferson County and Pine Creek Township. This Court has jurisdiction under 28 U.S.C. § 1331 and 1343. As explained in more detail below, we conclude that the FAA Amendment violates principles of equal protection and that Plaintiff is therefore entitled to partial summary judgment.


A. The Parties

Plaintiff Khodara Environmental, Inc. is a corporation organized under the laws of Delaware. It is the general partner of Eagle Environmental, L.P., a limited partnership operating out of Englewood Cliffs, New Jersey.

Defendant Steven Beckman is the Regional Director of the Northwest Regional Office of the Commonwealth of Pennsylvania, Department of Environmental Protection ("DEP").

Defendant Jane F. Garvey is the Administrator of the Federal Aviation Administration ("FAA"). Defendant FAA is the agency of the federal executive branch that is charged with, among other things, promoting the safety of air transportation and airport operations. (We refer to these Defendants collectively as the "FAA.")

Defendant Clearfield-Jefferson Counties Regional Airport Authority (the "Authority") is a municipal authority formed under the laws of the Commonwealth of Pennsylvania. It is the entity responsible for operation of the Dubois-Jefferson County Airport (hereinafter, the "Airport"). The Airport is located in Jefferson County, near Dubois, Pennsylvania and is jointly owned by Jefferson and Clearfield Counties. The Authority, acting through its Board of Directors, is generally responsible for making decisions concerning the administration of the Airport, including operations, airport safety, and capital improvements. Defendants Donald R. Johnson, Paul Sekula, William Miksich, Mark McKinley, Frederick G. Murray, Tim Morgan, Robert E. Reitz, Henry Deible, and Paul McMillen are individuals who, at all times relevant to this action, served as members of the Authority's Board of Directors.

In addition to the foregoing parties, both Jefferson County and Pine Creek Township have been granted permission to participate as Intervenors in this case. (They are referred to collectively hereafter as the "Intervenors.")

B. The Happy Landing Landfill

Eagle owns, or otherwise has an interest in, approximately 680 acres of land in Washington Township, Jefferson County, Pennsylvania (hereinafter, the "Property"). Eagle's intention was to develop a solid waste disposal facility on the Property which would be known as the "Happy Landing Landfill" (the "Landfill"), and which would serve as a depository for municipal waste generated in regions with a scarcity of available landfill space. These regions are generally outside Pennsylvania and include the New York City metropolitan area. The Landfill site is located approximately 5.25 miles from the Airport.

In November 1990, Eagle began to apply for a series of permits from the DEP*fn2 consistent with its plan to develop the Landfill.*fn3 The DEP initially issued all of the permits necessary for construction and operation of the Landfill in 1996.*fn4 On February 9, 1996, the DEP issued four permits to Eagle, namely: (i) a Water Obstruction and Encroachment Permit which permitted, inter alia, the filling of certain wetlands; (ii) a National Pollutant Discharge Elimination System ("NPDES") Permit, which authorized the discharge of treated industrial wastewater (primarily from landfill leachate) into waters of the Commonwealth; (iii) a Solid Waste Permit, which authorized the construction and operation of the Landfill; and (iv) an Air Quality Permit, which authorized certain air emissions related to operation of the Landfill. The DEP's issuance of the Solid Waste Permit was subsequently appealed to the Pennsylvania Environmental Hearing Board (the "EHB") by the Jefferson County Commissioners, the County Solid Waste Authority, Washington Township, and about 200 individuals and organizations. These appeals were consolidated at EHB No. 96-061-MG and have not yet been resolved. On August 15, 1996, the DEP issued to Eagle another permit known as a Water Quality Management Permit. This permit, which was issued under the Pennsylvania Clean Streams Law, authorized Eagle to construct landfill leachate treatment facilities.

Upon being initially permitted, Eagle undertook some measures to develop the Landfill. While the parties disagree on the extent to which Eagle actually commenced "construction" of the Landfill, this disagreement is for the most part a dispute more of semantics than of facts.*fn5 For example, it appears to be undisputed that Eagle obtained engineering studies and undertook steps to install eleven monitoring wells. However, Eagle apparently has not yet installed primary or secondary liners for the Landfill, has not installed leachate collection or management systems, and has not constructed and/or installed permanent access roads, borrow pits, sedimentation ponds, or scales for the Landfill. Eagle also has not submitted to the DEP a certification by a registered professional engineer for any major construction at the Landfill site. Needless to say, the Landfill has not yet become operational in terms of actually accepting waste for disposal at the site.

In September 1996, the Pennsylvania Fish and Boat Commission designated three tributaries near the Landfill site as wild trout streams. On the basis of this designation, the DEP determined that certain wetlands were of "exceptional value" due to the relationship between these wetlands and the trout streams. This in turn led the DEP to conclude that Eagle's plan to construct and operate the Landfill should not have been permitted as proposed.

Accordingly, on September 25, 1996 Defendant Beckman, on behalf of the DEP, issued an administrative order modifying the Water Obstruction and Encroachment Permit by revoking the authorization to fill in any wetlands. The order also suspended the Solid Waste Permit, the Air Quality Permit, the NPDES Permit and the portion of the Encroachment Permit that had not been modified. This suspension order became the subject of an appeal before the Environmental Hearing Board styled Eagle Environmental L.P. v. Commonwealth of Pennsylvania Department of Environmental Protection, EHB Docket No. 96-215-MG. On November 18, 1996, the EHB stayed consideration of most of the issues involved in the appeals docketed at No. 96-061-MG pending resolution of Eagle's suspension appeal at EHB No. 96-215-MG; thus most of the issues involved in the former appeals matter will be heard and considered after the appeal at EHB No. 96-215-MG is resolved. As of June 1997, Plaintiff estimated that the cost of pursuing these appeals would likely exceed $150,000. (See Affid. of Jacques Khodara dated 6/5/97, Pl.'s Resp. to Def. Beckman's Mot. to Dismiss [Doc. No. 39], Ex. A at Par. 19.)*fn6

On February 7, 1997 Eagle entered into a Consent Order and Agreement ("CO & A") with the DEP which allowed for the release of bonds that Eagle had submitted in connection with its Solid Waste Permit. Under the CO & A, Eagle agreed that it "shall not construct or operate the Happy Landing Landfill until and unless the [Solid Waste] Permit is reinstated and the bonding requirements of the [Solid Waste Management Act] are met." (Def. Beckman's Cross-Mot. for Summ. Judg. [Doc. No. 74] at Ex. A, Attachment 3.)*fn7 All of Eagle's DEP-issued permits relative to the Happy Landing Landfill remain suspended by virtue of the DEP's September 25, 1996 administrative order, which was affirmed by the EHB in a ruling dated September 3, 1998.*fn8

C. FAA Order 5200.5A and the "Leatherwood Landfill"

As part of its mission to promote safety in air traffic and airport operations, the FAA has determined that municipal solid waste landfills attract birds, and that municipal solid waste landfills located in the vicinity of airports increase the potential for bird strikes. Accordingly, Order 5200.5A was promulgated by the FAA to provide guidance regarding the potential safety concerns of landfills located in the vicinity of airports. Specifically, FAA Order 5200.5A states that landfills are not compatible to the safety of an airport when:

  a. waste disposal sites are located within 10,000
    feet of any runway end used or planned to be used
    by turbine powered aircraft.
  b. waste disposal sites are located within 5,000 feet
    of any runway end used only by piston powered
  c. any waste disposal site located within a five mile
    radius of a runway end that attracts or sustains
    hazardous bird movements from feeding, water or
    roosting areas into, or across the runways and/or
    approach and departure patterns of aircraft.

(See Ex.s in Supp. of Pl.'s Mot. for Summ. Judg. [Doc. No. 60] at Ex. 1-C.) The criteria set forth in Order 5200.5A comport with the FAA's administrative regulations. See 14 C.F.R. Pt. 77. They have also been incorporated into the U.S. Environmental Protection Agency's regulations concerning landfills. See 40 C.F.R. § 258.10.

In May 1997 the FAA issued an Advisory Circular regarding the hazardous wildlife attractants on or near airports. See 60 Fed.Reg. 270805 (May 25, 1995). The Advisory Circular supersedes Order 5200.5A, but incorporates criteria identical to those set forth in Order 5200.5A for the location of landfills near airports. The Circular also sets forth procedures that the FAA will follow when notified that a landfill is proposed to be situated within the relevant distance parameters from an airport. The procedures set forth in the Circular essentially are a memorialization of the procedures that the FAA followed pursuant to Order 5200.5A. They provide that, when a landfill is proposed near the location of an airport, the FAA determines whether the use is compatible with the safety of the airport by evaluating, inter alia, the distance that the proposed landfill site is from the airport. If an expansion of the airport runways is contemplated, the FAA includes that increased area in its calculation. When the proposed site falls within siting criterion 7(c), as part of a compatibility determination the FAA also evaluates whether the geographical location of the landfill is such that it falls within the traffic patterns for the type or the category of aircraft that the airport serves. As part of its compatibility determination, the FAA may examine bird migration patterns within that area and the geographic location of the airport (for example, distance to a water body). When the FAA determines that a municipal solid waste landfill location falls within siting criteria 7(a) or 7(b) set forth in Order 5200.5A, it regularly objects to the landfill location as incompatible with the safety of the airport.

In or around January 1991 the FAA received information that an entity known as Leatherwood, Inc. had submitted a request to the DEP for a permit to operate a landfill (the "Leatherwood Landfill") in Pinecreek Township, Jefferson County, Pennsylvania, near the Dubois-Jefferson County Airport. The FAA determined that the proposed location was within five miles of the Airport and was beneath the centerline extended from one of the Airport's runways, so that aircraft approaching to land on that runway could be expected to pass over the Leatherwood Landfill location at altitudes that would result in an increased potential for bird strikes. The FAA concluded that, because the proposed location was beneath the approach course (centerline extended) to a runway, the development of the Leatherwood Landfill would significantly increase the risk of an aircraft bird strike. Accordingly, it submitted comments to the DEP expressing these concerns and recommending that the DEP deny the permit application for the Leatherwood Landfill because it was within the distance restrictions of Order 5200.5A.

The Happy Landing Landfill, in contrast to the Leatherwood Landfill, is approximately 5.25 miles from the Airport and is not situated beneath the approach course to any of the Airport's runways. Consequently, aircraft on final approach to the Airport would not be expected to pass over the Happy Landing Landfill site, whether operating under visual flight rules or instrument flight rules. The FAA admits that, because the Happy Landing Landfill site is located outside of the restrictive criteria set forth in FAA Order 5200.5A, it would not have been the subject of an FAA compatibility study.

D. Section 1220 of the Federal Aviation Reauthorization Act of

On October 9, 1996, the Federal Aviation Reauthorization Act of 1996 was enacted into law. Pub.L. No. 104-264. Section 1220 of the Act, which is the focus of this lawsuit, states as follows:

  (a) Landfills: [49 U.S.C.] Section 44718 is amended
    by adding at the end the following:
    (d) Landfills: For the purpose of enhancing
      aviation safety, in a case in which 2 landfills
      have been proposed to be constructed or
      established within 6 miles of a commercial
      service airport with fewer than 50,000
      enplanements per year, no person shall construct
      or establish either landfill if an official of
      the Federal Aviation Administration has stated in
      writing within the 3-year period ending on the
      date of enactment of this subsection that 1 of
      the landfills would be incompatible with aircraft
      operations at the airport, unless the landfill is
      already active on such date of enactment or the
      airport operator agrees to the construction or
      establishment of the landfill.
  (b) Civil Penalties: [49 U.S.C.] Section 46301 is
    amended by inserting 44718(d) after 44716, in each
    of subsections (a)(1)(A), (d)(2), and (f)(1)(A)(i).

As is evident from its language, Section 1220 (hereinafter, the "FAA Amendment") purports to grant the airport operator the power to circumvent the restrictions set forth in the Amendment by agreeing to allow construction or establishment of the otherwise prohibited landfill. The FAA does not interpret the Amendment as conferring upon it any authority to conduct a compatibility determination as to any airport that falls within the purview of the FAA Amendment.

On October 21, 1996, Defendant Beckman sent a letter to Jacques Khodara, president of Khodara Environmental, Inc., informing him of the FAA Amendment and the fact that permits previously issued for the Leatherwood Landfill had been suspended on the basis of the statute. Beckman's letter further advised that:

  [t]he Department's future action regarding
  reinstatement and/or modification of Eagle
  Environmental's currently suspended permits will be
  governed by the same criteria applicable to
  Leatherwood, Inc. Thus, if Eagle seeks reinstatement
  or modification pursuant to the Department's
  September 25th Order, Eagle Environmental should also
  indicate to the Department how it intends to comply
  with Section 1220(a) of the Federal Aviation
  Reauthorization Act of 1996 [49 U.S.C. § 44718(d)].

(Def. Beckman's Cross Mot. for Summ. Judg. [Doc. No. 74] at Ex. A, Attachment 2.)*fn9

Thereafter, Eagle sought permission from the Authority to construct and operate the Landfill. By letter dated November 20, 1996, Eagle formally requested that the Authority agree to the construction and operation of Happy Landing Landfill. On November 22, 1996 the Authority responded with a letter notifying Eagle that it would accept written documentation relative to Eagle's request for a period of 30 days. Eagle was further notified that written documentation would be accepted during that same time period from other interested parties as well and that all of the documentation would be made public. Eagle provided documentation to the Authority in support of its request on or about December 23, 1996. The documentation consisted of fourteen exhibits and exceeded 125 pages.

At a public meeting held on January 24, 1997 the Authority unanimously decided to deny Eagle's request. In its resolution denying the request, the Authority justified its decision by adopting and incorporating the substantive portions of an attached letter from the Authority's legal counsel. The letter, as incorporated into the resolution, stated in relevant part that: "[t]he absence of specific criteria in the applicable federal legislation for determining the grant or denial of consent by the Authority suggests a broad range of discretion in the Authority to make such a determination." (Pl.'s Ex. 19.)

E. The Litigation

Plaintiff commenced the instant action on April 25, 1997 by filing a five-count complaint. Count I alleges that the FAA Amendment is facially invalid because it amounts to an unconstitutional delegation of legislative authority. Count II asserts a challenge to the Amendment on the ground that it is an unconstitutional Bill of Attainder. Count III challenges the statute on the ground that it violates Plaintiff's rights under the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff's first three claims, which involve purely facial challenges to the FAA Amendment, are asserted only against Defendants Beckman, the FAA and Garvey.*fn10 Count IV of the Complaint is directed against the Airport Authority and its board members in their individual and official capacities. This cause of action asserts that the Defendants' application of the statute violated Eagle's constitutional rights to substantive and procedural due process, equal protection of the laws, and freedom from the taking of its property without just compensation. Plaintiff's fifth claim asserts that the FAA Amendment is inapplicable to the Happy Landing Landfill as a matter of statutory construction. Under this count, which is asserted against all Defendants, Plaintiff contends that the statute by its terms is inapplicable to Happy Landing Landfill because the Landfill was not "proposed to be constructed or established," but rather, was "already active," on the date of the enactment of the FAA Amendment. Plaintiff has sought various forms of relief including, inter alia, declaratory judgment on all counts, injunctive relief, and compensatory and punitive damages.

On May 16, 1997 Defendant Beckman filed a motion to dismiss the case, asserting that this Court lacks Article III jurisdiction over the instant matter and further arguing that Plaintiff could not demonstrate that the claims directed against him were properly raised before this Court. Arguments on Beckman's motion were entertained during a telephonic conference held on September 23, 1997. At the conclusion of the conference, the Court rendered a ruling denying Beckman's motion.

Plaintiff subsequently filed a motion for partial summary judgment as to Counts I, II and III of its Complaint. The FAA and Intervenors have filed cross-motions for summary judgment on these same counts, seeking a ruling by this Court that the FAA Amendment is constitutional. Intervenors have also filed a separate motion to dismiss this case on the grounds of mootness and/or lack of ripeness. Defendant Beckman has filed a motion for summary judgment in which he renews the arguments set forth in his previous motion to dismiss and further argues in favor of summary judgment on the basis of Eleventh Amendment Immunity and/or abstention. Finally, the Airport ...

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