KIBLER DEVELOPMENT CORPORATION
and MARION RIDGE LANDFILL, INC .,
Petitioners,
vs .
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, 1160601
Stephen F. Hedinger
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Francis X. Lyons
Bell, Boyd & Lloyd LLC
70 West Madison Street
Suite 3100
Chicago, IL 60602
ORIGINAL
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
NOTICE
PCB 05-35
(Permit appeal - Land)
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
James M. Kropid
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9274-9276
RECEIVED
CLERK'S OFFICE
APR 0 6 2006
STATE OF ILLINOIS
Pollution Control Board
Please take notice that I have today filed with the office of the Clerk of the Pollution
Control Board a MOTION OF THE CITIES OF MARION AND HERRIN AND THE
60145287x1858007
WILLIAMSON COUNTY
AIRPORT AUTHORITY
TO
INTERVENE
AS
PARTY
PARTICIPANTS, a copy of which is herewith served upon you
.
Dated: March
fl
' 2006
Respectfully submitted,
CITY OF MARION, CITY OF HERRIN, and
WILLIAMSON COUNTY AIRPORT AUTHORITY
r
BY :
HINSHAW &
ULBERTSON, LLP
EDWARD R. GOWER, Special Counsel
CHARLES F. HELSTEN
EDWARD R. GOWER
HINSHAW & CULBERTSON, LLP
Attorneys at Law
400S
. 91h, Suite 200
Springfield, IL 62701
(217) 528-7375
60145287v 1 858007
ORIGINAL
RECEIVED
CLERK'S OFFICE
APR 0 6 2006
MOTION OF THE CITIES OF MARION AND HERRIN
AND THE WILLIAMSON COUNTY AIRPORT AUTHORITY
TO INTERVENE AS PARTY PARTICIPANTS
The City of Marion ("Marion"), the City of Herrin ("Herrin") and the Williamson County
Airport Authority ("Airport Authority"), move the Board for an order authorizing each of them
to intervene in the above-captioned proceeding as formal party participants . In support of their
Motion, Marion, Herrin and the Airport Authority state
:
1
.
The rules of the Illinois Pollution Control Board (the "Board"), provide that the
"Board encourages public participation in all of its proceedings ."
35 Ill. Adm. Code, §
101.110(a). Moreover, the Board's rules authorize the Board to permit intervention as a party
where the movant "may be materially prejudiced absent intervention" or "is so situated that the
person [movant] may be adversely affected by a final Board order."
35 Ill. Adm. Code,
§ 101 .402(d)(2) and (3) .
2
.
Marion appeared and offered testimony concerning the proposed landfill at the
siting hearing that ultimately resulted in the issuance of the permit and permit conditions that are
at issue in this proceeding
.
60142671v2 858007
ILLINOIS POLLUTION CONTROL
STATE OF
ILLINOIS
BOARD
Pollution Control
Board
KIBLER DEVELOPMENT CORPORATION
and MARION RIDGE LANDFILL, INC .,
)
)
Petitioners,
)
vs .
)
PCB 05-35
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
)
)
(Permit appeal - Land)
Respondent .
)
3
.
Under the Third District Appellate Court's decision in
Land and Lakes Co. v.
Pollution Control Board,
245
111. App. 3d 631, 616 N .E.2d 349, 354-55 (3d Dist .),
app. denied,
152 111. 2d 561, 622 N.E.2d 1209 (1993), it is appropriate to allow officials who represent the
public interest to intervene in appeal proceedings before the Board . In the Land and Lakes case,
it was the Will County State's Attorney who was permitted to intervene because of its "interest
in protecting the health and environment within which the People of Will County must live and
work." 616 N.E.2d at 355 . Here, Williamson County was the siting authority, and it therefore
would be inappropriate for the State's Attorney to intervene . Under the circumstances, there is
no public body better situated to protect the public interest than the adjacent municipalities and
airport whose citizens and users, respectively, will be most directly affected by the proposed
landfill. For the reasons set forth below, Marion, Herrin and the Airport Authority satisfy both
of the Board's alternative criterion for intervention, are the public bodies best situated to protect
the public interest, and should be permitted to intervene in this case
.
I .
LOCATION OF THE PROPOSED LANDFILL
4 .
This proceeding was instituted by the proposed developers of a municipal solid
waste landfill, Kibler Development Corporation and Marion Ridge Landfill, Inc ., (collectively
the "Proposed Landfill Developers") .
5
.
The proposed landfill site would occupy 353 acres and ultimately would be about
170 feet tall . The site would be located immediately adjacent to Marion's corporate boundaries,
right next to the Kokopelli Golf Club and related subdivision development and less than a
quarter mile from new retail development in Marion . In addition, the facility would be located
less than two miles from the Williamson County Regional Airport, which is owned and
controlled by the Airport Authority. In fact, the proposed location is directly beneath the path
followed by aircraft landing and taking off from the east-west runway of the Airport
.
the
2
60142671v2858007
proposed landfill is approximately two miles from Herrin
.
As more fully discussed below,
construction of the proposed landfill would endanger public safety, and severely disrupt
economic development in the area .
II.
GRANTING THE RELIEF REOUESTED BY THE PROPOSED LANDFILL
DEVELOPERS WOULD RAISE SERIOUS PUBLIC SAFETY CONCERNS FOR
THE MOVANTS' CITIZENRY AND USERS .
6 .
The Proposed Landfill Developers initiated this proceeding for the purpose,
among others, of appealing a condition in the Illinois Environmental Protection Agency's
("IEPA") approval of their municipal solid waste landfill construction permit
.
The permit
condition at issue requires the Proposed Landfill Developers to comply with federal law, and,
accordingly, obtain all necessary approvals from the Federal Aviation Administration
("FAA")
before they can proceed with construction and operation of the proposed municipal solid waste
landfill .
7
.
The federal law in question is 49 U .S.C. § 44718(d) .
That law prohibits
construction or establishment of a municipal solid waste landfill within six miles of a public
airport that meets certain statutory criteria unless : (a) the State's Aviation Agency requests that
the Administrator of the FAA exempt the landfill from the otherwise applicable prohibition
; and
(b) the FAA Administrator finds that the exemption "would have no adverse impact on aviation
safety."
(Emphasis added) .
The Williamson County Regional Airport clearly meets the
statutory criteria of 49 U.S.C. §44718(d) because it has received federal Airport Improvement
Program grant funds and it is primarily served by general aviation aircraft and regulatory
scheduled flights of aircraft designed for 60 passengers or less . Since the proposed landfill is
less than 6 miles from the Airport, in turn, the Proposed Landfill Developers must secure a
federal exemption from the otherwise applicable landfill prohibition in 47 U .S.C. § 44718(d)
before they can construct or operate the proposed landfill
.
3
60142671v2 858007
8
.
The reason that federal law prohibits, with extremely limited exceptions, the
construction of municipal solid waste landfills near airports is because municipal solid waste
landfill construction in proximity to airports poses serious risks to public safety . Waste facilities
attract birds, and birds pose a major danger to low flying aircraft. According to FAA Advisory
Circular 150/5200-34A (which governs construction of landfills near airports), there were more
than 59,000 collisions in the United States between aircraft and wildlife in the period from 1990-
2004. That same Advisory Circular reports that aircraft-wildlife collisions annually result in
over $495 million per year in aircraft damage and associated losses, and over 631,000 hours per
year in lost aircraft time. Moreover, 87% of those collisions occur below 200 feet, where there is
little time for a pilot to react and regain control of the aircraft
.
In one of the more well
publicized tragic collisions, an Air Force E-3B AWACS aircraft collided with a flock of
Canadian geese on the Elmendorf Air Force Base in Alaska, killing all 24 passengers and crew
.
A copy of the FAA Advisory Circular 150/5200-34A is attached as Exhibit 1
.
9 .
According to the attached FAA Advisory Circular, gulls, Canadian geese, raptors
and turkey vultures are the biggest threat to aircraft, as all are commonly found foraging and
resting on or near landfills
.
10 .
According to a Wildlife Hazard Assessment conducted for the Williamson County
Regional Airport in 2002-2003 by the United States Department of Agriculture, pursuant to a
contractual arrangement with the FAA, gulls, Canadian geese, various raptors, and turkey
vultures were all observed on the Airport property. The Williamson County Regional Airport is
particularly susceptible to bird and other wildlife strikes because :
1)
the facility would be
located 2 .5 miles north/northeast of the Crab Orchard Lake, which is the site of a national
wildlife refuge, and 2) the facility would be located very near the confluence of the Mississippi
4
60142671v2858007
and Ohio River laboratory bird flyways . Constructing a municipal solid waste landfill less than 2
miles from the airport that would attract birds to a site directly beneath the approach to one of the
two runways at the Airport, under the circumstances, would appear to be a recipe for disaster .
11
.
To the best of the Movants' knowledge, neither the IEPA nor any other party has
performed any meaningful analysis of the public safety risks posed to air traffic at the
Williamson County Regional Airport by construction of a large municipal solid waste landfill
directly beneath the approach to one of its runways. Those very real public safety issues were
not thoroughly evaluated or vetted in either the siting or permitting process . Under federal law,
no such landfill can be constructed unless the FAA determines that there would be "no adverse
impact on aviation safety." 49 U.S.C. § 44718(d)(1). (Emphasis added). Given these very real
and substantial risks, the IEPA's decision to expressly condition permit approval upon
compliance with federal law was a very necessary and wise decision
.
12 .
If that condition were eliminated and the Proposed Landfill Developers were
allowed to proceed with construction of the landfill, the citizens of Marion and Herrin as well as
the owners and users of the Williamson County Regional Airport would be exposed to the very
real potential of a major aircraft crash
.
III .
GRANTING THE REOUESTED RELIEF WOULD HAVE A NEGATIVE
IMPACT ON REGIONAL ECONOMICAL DEVELOPMENT, IMPACTING
MARION, HERRIN AND THE AIRPORT AUTHORITY
.
13
.
As noted above, the proposed landfill site is adjacent to the Kokopelli Golf Club
and a related subdivision development . Homes in that development have sold for $200,000 to
more than $1 million, significantly enhancing Marion's tax base
.
Who, in their right mind,
would spend that kind of money in Marion, Illinois for a home near a large landfill?
14
.
Moreover, the Southern Illinois Baseball Group is in the process of constructing
the infrastructure for a minor league baseball park to be located immediately adjacent to the
5
60142671x2 858007
proposed landfill site. The Group previously had a tentative agreement to buy a Class A minor
league franchise in South Bend, Indiana, and move it to Marion, and is now attempting to secure
rights to another minor league franchise . If the permit condition is dropped and construction of a
landfill proceeds, trucks moving between the landfill site and 1-57 Interstate will inevitably have
to move along the property immediately adjacent to the stadium site . The prospects of attracting
a minor league franchise to play at the stadium site will plummet, and economic development in
the entire region, including at Marion, Herrin and the Airport, will suffer tremendously .
15 .
The Williamson County Regional Airport is a public facility that has some
commercial passenger service to St. Louis, and, moreover, primarily serves general aviation
needs of the region. In 2005, the Airport had 11,934 aircraft operations. Approximately 40% of
its flights are transient, involving aircraft not based at the airport
.
In addition, the Airport
currently is pursuing additional commercial service to Chicago
.
16 .
If the condition is dropped from the permit and construction of the landfill
proceeds, the Airport Authority believes that the Airport will lose its existing commercial service
as well as any prospect it has of attracting additional commercial service .
Furthermore, the
Airport Authority believes that at least some of traffic involving aircraft not based at the Airport
would shift elsewhere. The potential of attracting additional federal airport improvement grant
funds for future improvements at the Airport also would likely be severely diminished
.
17 .
Marion and Herrin are committed to maintaining the economic vitality as airports,
by their very nature, are economic generators for adjacent communities .
IV .
MARIONHASANINTERESTINPROTECTINGITSCITIZENSBY
INTERVENING TO ENSURE THAT THE SETBACK CONDITION REMAINS
IN THE PERMIT
18 .
The permit approval issued to the Proposed Landfill Developers also provided
that no liner shall be constructed within 500 feet of any inhabited structure and required the
6
60142671v 2 858007
developers to conduct a survey before starting construction of the liner
.
The inclusion of a
setback requirement illustrates the incompatibility of the proposed landfill with the immediately
adjacent residential community .
19. As noted above, Marion's corporate boundaries are immediately adjacent to the
proposed landfill site, and the setback requirement provides some limited measure of protection
for the sanctity of the homes of Marion's citizens . In addition to the other grounds, Marion is
entitled to intervene in this proceeding to ensure that its citizens are protected by retention of the
setback requirement in the permit
.
V .
GRANTING THE MOTION TO INTERVENE WILL NOT DELAY THIS
PROCEEDING IN ANY RESPECT .
20
.
Granting the Motion to Intervene will not delay this proceeding in any respect .
The Petition for Review was filed on August 29, 2004, but the administrative review record has
never been filed and there have been no substantive actions or activities in the case . In fact, the
Petitioners have filed their seventh waiver of decision deadline, and the next status conference is
scheduled for April 4, 2006 .
The current deadline for a Board decision in this matter is
September 1, 2006 .
VI .
CONCLUSION
21
.
The Proposed Landfill Developers have always proposed to build a municipal
solid waste landfill at the site in question. They cannot build such a landfill without getting a
federal exemption, and the existing IEPA permit is properly conditioned upon them obtaining the
requisite federal exemption before they can proceed with construction . If the Proposed Landfill
Developers are permitted to proceed with construction of any kind of landfill at the site, it will
have a deleterious and devastating impact on the region's economy. If the current condition is
eliminated from the permit, and the Proposed Landfill Developers proceed with construction of a
7
60142671v2 858007
municipal solid waste facility without first obtaining the requisite federal exemption (which the
Proposed Landfill Developers have asserted they have the right to do), it will seriously
jeopardize public safety
.
22. The Proposed Landfill Developers should be required to follow the law, and that
is what the existing permit condition was designed to ensure is done . The parties who will be
most severely impacted if the Proposed Landfill Developers do not follow the law (which are the
Movants in this case), should most assuredly be permitted to intervene as parties in this
proceeding to ensure that the Proposed Landfill Developers are required to follow the law and
that the permit condition properly remain in place
.
23
.
The record in this case indicates that the current parties have discussed a
settlement that would involve some change to the permit language . Under the circumstances, it
is important that the Movants be permitted to intervene as parties in this proceeding so that they
have a seat at the negotiating table with formal party status, rather than being permitted to simply
file an amicus brief after the fact on a done deal
.
24 .
If any of the three Movants are denied the right to intervene as party participants,
then they request the right to file Amici Curiae briefs in this proceeding
.
WHEREFORE, the City of Marion, the City of Herrin and Williamson County Airport
Authority move the Board for entry of an order granting them leave to intervene and appear as
party participants in this proceeding
.
8
60142671v2858007
CHARLES F. HELSTEN
EDWARD R. GOWER
HINSHAW & CULBERTSON, LLP
Attorneys at Law
400S . 91h
, Suite
200
Springfield, IL
62701
(217) 528-7375
CITY OF MARION, CITY OF HERRIN, and
WILLIAMSON COUNTY AIRPORT AUTHORITY
BY :
HINSHAW & CULBERTSON, LLP
EDWARD R. GOWER, Special Counsel
9
60142671v2 858007
RECEIVED
CLERK'S OFFICE
C
APR 0 6 2006
VERIFICATION FOR THE CITY OF MARION
STATE OF ILLINOIS
Pollution Control Board
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the facts concerning the location of the proposed landfill
and its impact on the City of Marion and its citizens, as set forth in the Motion of the Cities of
Marion and Herrin and the Williamson County Airport Authority to Intervene as Parties in PCB
Case No. 05-35, are true and correct, except as to matters therein stated to be on information and
belief, and as to such matters, the undersigned certifies as aforesaid that he verily believes them
to be true .
Bob Butler
Mayor
City of Marion
10
60142671 v2 858007
ORIGINAL
VERIFICATION FOR THE CITY OF HERRIN
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the facts concerning the location of the proposed landfill
and its impact on the City of Herrin and its citizens, as set forth in the Motion of the Cities of
Marion and Herrin and the Williamson County Airport Authority to Intervene as Parties in PCB
Case No. 05-35, are true and correct, except as to matters therein stated to be on information and
belief, and as to such matters, the undersigned certifies as aforesaid that he verily believes them
to be true .
Vicfor
. Ritter
Mayor
City of Herrin
11
RECEIVED
CLERK'S OFFICE
APR 0 6 2006
STATE OF ILLINOIS
Pollution Control Board
60142671x2 858007
ORIGINAL
RECEIVED
CLERK'S OFFICE
APR 0 6 2006
VERIFICATION FOR THE WILLIAMSON
STATE OF ILLINOIS
COUNTY AIRPORT AUTHORITY
Pollution Control Board
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the facts concerning the location of the proposed landfill
and its impact on the Williamson County Airport Authority and its users, as set forth in the
Motion of the Cities of Marion and Herrin and the Williamson County Airport Authority to
Intervene as Parties in PCB Case No. 05-35, are true and correct, except as to matters therein
stated to be on information and belief, and as to such matters, the undersigned certifies as
aforesaid that he verilybelieves them to be true
.
Carl Planinc
Chairman
Williamson County Airport Authority
12
60142671v2858007
a
Advisory
U.S. Department
of Transportation
Circular
Federal Aviation
Administration
Subject: CONSTRUCTION OR
Date: January 26, 2006
AC No: 150/5200-34A
ESTABLISHMENT OF LANDFILLS NEAR
Initiated by : AAS-300
Change
:
PUBLIC AIRPORTS
1 . Purpose .
This advisory circular (AC) contains guidance on complying with Federal statutory requirements
regarding the construction or establishment of landfills near public airports
.
2. Application
.
The guidance contained in the AC is provided by the Federal Aviation Administration (FAA) for
use by persons considering the construction or establishment of a new municipal solid waste
landfill (MSWLF) near a public airport . Guidance contained herein should be used to comply
with MSWLF site limitations contained in 49 U .S.C. § 44718(d), as amended by section 503 of
the Wendell H . Ford Aviation Investment and Reform Act for the 21s` Century, Pub. L. No. 106-
181 (April 5, 2000), "Structures interfering with air commerce ." In accordance with § 44718(d),
as amended, these site limitations are not applicable in the State of Alaska
.
In addition, this AC provides guidance for a state aviation agency desiring to petition the FAA for
an exemption from the requirements of § 44718(d), as amended
.
3. Cancellation
This AC cancels AC 150/52300-34,
Construction or Establishment
of Landfills Near Public
Airports,
dated August 8, 2000
.
This revision contains no substantive changes to the original . Changes include revised and
new website addresses, revised strike statistics, and regulation titles
.
4. Related Reading Materials .
AC - 150/5200-33,
Hazardous Wildlife Attractions
On or
Near Airports .
Wildlife
Strikes to
Civil Aircraft in the United
States. FAA Wildlife Aircraft Strike Database Serial
Reports
.
Report to Congress :
Potential
Hazards to
Aircraft by Locating
Waste
Disposal
Sites in
the
Vicinity ofAirports,
April 1996, DOT/FAA/AS/96-1
.
Title 14, Code of Federal Regulation, Part 139, Certification of Airports
.
Title 40, Code of Federal Regulation, Part 258, Municipal Solid Waste Landfill Criteria
.
2
Some
of these documents and additional information on wildlife management, including
guidance
on
landfills,
are available
on
the
FAA's Airports
web site
at
http://www,faa.gov/airports
airtraffic/airports/ or http ://wildlife-mitigation.tc.faa.gov
5. Definitions
.
Definitions for the specific purpose of this AC are found in Appendix 1
.
6. Background .
The FAA has the broad authority to regulate and develop civil aviation under the Federal
Aviation Act of 1958, 49 U .S.C. § 40101, et. seq., and other Federal law. In section 1220 of the
Federal Aviation Reauthorization Act of 1996, Pub. L. No. 104-264 (October 9, 1996), the
Congress added a new provision, section
(d), to 49 U .S.C. § 44718 to be enforced by the FAA
and placing limitations on the construction or establishment of landfills near public airports for
the purposes of enhancing aviation safety. Section 503 of the Wendell H. Ford Aviation
Investment and Reform Act for the 21s t Century (AIR-21), Pub. L. No. 106-181 (April 5, 2000)
replaced section 1220 of the 1996 Reauthorization Act, 49 U .S.C. § 44718 (d), with new
language. Specifically, the new provision, § 44718(d), as amended, was enacted to further limit
the construction or establishment of a municipal solid waste landfill (MSWLF) near certain
smaller public airports .
In enacting this legislation, Congress expressed concern that a MSWLF sited near an airport
poses a potential hazard to aircraft operations because such a waste facility attracts birds
.
Statistics support the fact that bird strikes pose a real danger to aircraft. An estimated 87
percent of the collisions between wildlife and civil aircraft occurred on or near airports when
aircraft are below 2,000 feet above ground level (AGL). Collisions with wildlife at these altitudes
are especially dangerous as aircraft pilots have minimal time to recover from such emergencies
.
The FAA National Wildlife Aircraft Strike Database shows that more than 59,000 civil aircraft
sustained reported strikes with wildlife from 1990 to 2004 . Between 1990-2004, aircraft-wildlife
strikes involving U. S. civil aircraft resulted in over $495 million/year worth of aircraft damage
and associated losses and over 631,000 hours/year of aircraft down time
.
From 1990 to 2004, waterfowl, gulls and raptors were involved in 77% of the 3,493 reported
damaging aircraft-wildlife strikes where the bird was identified . Populations of Canada geese
and many species of gulls and raptors have increased markedly over the last several years
.
Further, gulls and Canada geese have adapted to urban and suburban environments and, along
with raptors and turkey vultures, are commonly found feeding or loafing on or near landfills
.
In light of increasing bird populations and aircraft operations, the FAA believes locating landfills
in proximity to airports increases the risk of collisions between birds and aircraft . To address this
concern, the FAA issued AC 150/5200-33, Hazardous Wildlife Attractions On or Near Airports,
to provide airport operators and aviation planners with guidance on minimizing wildlife
attractants . AC 150/5200-33 recommends against locating municipal solid waste landfills within
five statute miles of an airport if the landfill may cause hazardous wildlife to move into or through
the airport's approach or departure airspace
.
7. General .
Using guidance provided in the following sections, persons considering construction or
establishment of a landfill should first determine if the proposed facility meets the definition of a
new MSWLF (see Appendix 1) . Section 44718(d), as amended, applies only to a new MSWLF
.
It does not apply to the expansion or modification of an existing MSWLF, and does not apply in
the State of Alaska . If the proposed landfill meets the definition of a new MSWLF, its proximity
to certain public airports (meeting the criteria specified in Paragraph 8 below) should be
determined. If it is determined that a new MSWLF would be located within six miles of such a
public airport, then either the MSWLF should be planned for an alternate location more than 6
miles from the airport, or the MSWLF proponent should request the appropriate State aviation
agency to file a petition for an exemption from the statutory restriction .
In addition to the requirements of § 44718(d), existing landfill restrictions contained in AC
150/5200-33,
Hazardous
Wildlife
Attractions On
or Near
Airports
(see Paragraph 5,
Background) also may be applicable . Airport operators that have accepted Federal funds have
obligations under Federal grant assurances to operate their facilities in safe manner and must
comply with standards prescribed in advisory circulars, including landfill site limitations
contained in AC 150/5200-33 .
8. Landfills Covered by the Statute .
The limitations of § 44718(d), as amended, only apply to a new MSWLF (constructed or
established after April 5, 2000) . The statutory limitations are not applicable where construction
or establishment of a MSWLF began on or before April 5, 2000, or to an existing MSWLF
(received putrescible waste on or before April 5, 2000) . Further, an existing MSWLF that is
expanded or modified after April 5, 2000, would not be held to the limitations of § 44718(d), as
amended
.
9. Airports Covered by the Statute
.
The statutory limitations restricting the location of a new MSWLF near an airport apply to only
those airports that are recipients of Federal grants (under the Airport and Airway Improvement
Act of 1982, as amended, 49 U.S.C. § 47101,
et
seq.) and primarily serve general aviation
aircraft and scheduled air carrier operations using aircraft with less than 60 passenger seats
.
While the FAA does not classify airports precisely in this manner, the FAA does categorize
airports by the type of aircraft operations served and number of annual passenger
enplanements. In particular, the FAA categorizes public airports that serve air carrier
operations. These airports are known as commercial service airports, and receive scheduled
passenger service and have 2,500 or more enplaned passengers per year
.
One sub-category of commercial service airports, nonhub primary airports, closely matches the
statute requirement. Nonhub primary airports are defined as commercial service airports that
enplane less than 0.05 percent of all commercial passenger enplanements (0.05 percent
equated to 352,748 enplanements in 2004) but more than 10,000 annual enplanements . While
these enplanements consist of both large and small air carrier operations, most are conducted
in aircraft with less than 60 seats. These airports also are heavily used by general aviation
aircraft, with an average of 81 based aircraft per nonhub primary airport
.
3
4
In addition, the FAA categorizes airports that enplane 2,500 to 10,000 passengers annually as
non-primary commercial service airports, and those airports that enplane 2,500 or less
passengers annually as general aviation airports. Both types of airports are mainly used by
general aviation but in some instances, they have annual enplanements that consist of
scheduled air carrier operations conducted in aircraft with less than 60 seats . Of the non-
primary commercial service airports and general aviation airports, only those that have
scheduled air carrier operations conducted in aircraft with less than 60 seats would be covered
by the statute. The statute does not apply to those airports that serve only general aviation
aircraft operations
.
To comply with the intent of the statute, the FAA has identified those airports classified as
nonhub primary, non-primary commercial service and general aviation airports that
:
1 . Are recipients of Federal grant under 49 U .S.C. § 47101, et. seq .
;
2. Are under control of a public agency
;
3. Serve scheduled air carrier operations conducted in aircraft with less than 60 seats ; and
4. Have total annual enplanements consisting of at least 51% of scheduled air carrier
enplanements conducted in aircraft with less than 60 passenger seats
.
Persons considering construction or establishment of a new MSWLF should contact the FAA to
determine if an airport within six statute miles of the new MSWLF meets these criteria (see
paragraph 11 below for information on contacting the FAA) . If the FAA determines the airport
does meet these criteria, then § 44718(d), as amended, is applicable
.
An in-depth explanation of how the FAA collects and categorizes airport data is available in the
FAA's National Plan of Integrated Airport Systems (NPIAS). This report and a list of airports
classified as nonhub primary, non-primary commercial service and general aviation airports
(and associated enplanement data) are available on the FAA's Airports web site at
http://www .faa .qov/airports airtraffic/airports/planninq capacity/
.
10. Separation distance measurements
.
Section 44718(d), as amended, requires a minimum separation distance of six statute miles
between a new MSWLF and a public airport. In determining this distance separation,
measurements should be made from the closest point of the airport property boundary to the
closest point of the MSWLF property boundary. Measurements can be made from a perimeter
fence if the fence is co-located, or within close proximity to, property boundaries
. It is the
responsibility of the new MSWLF proponent to determine the separation distance
.
11. Exemption Process
.
Under § 44718(d), as amended, the FAA Administrator may approve an exemption from the
statute's landfill location limitations . Section 44718(d), as amended, permits the aviation agency
of the state in which the airport is located to request such an exemption from the FAA
Administrator. Any person desiring such an exemption should contact the aviation agency in the
state in which the affected airport is located . A list of state aviation agencies and contact
information is available at the National Association of State Aviation Officials (NASAO) web site
atwww.nasao.orq or by calling NASAO at (301) 588-1286
.
A state aviation agency that desires to petition the FAA for an exemption should notify the
Regional Airports Division Manager, in writing, at least 60 days prior to the construction of a
MSWLF. The petition should explain the nature and extent of relief sought, and contain
information, documentation, views, or arguments that demonstrate that an exemption from the
statute would not have an adverse impact on aviation safety. Information on contacting FAA
Regional Airports Division Managers can be found on the FAA's web site at www.faa.qov
.
After considering all relevant material presented, the Regional Airports Division Manager will
notify the state agency within 30 days whether the request for exemption has been approved or
denied. The FAA may approve a request for an exemption if it is determined that such an
exemption would have no adverse impact on aviation safety
.
12. Information
.
For further information, please contact the FAA's Office of Airport Safety and Standards, Airport
Safety and
Operations
Division,
at
(800)
842-8736,
Ext .
7-30B5
or via
email
at
WebmasterARP@faa .gov. Any information, documents and reports that are available on the
FAA web site also can be obtained by calling the toll-free telephone number listed above
.
CVL"t Le
DAVID L. BENNETT
Director, Office of Airport Safety and Standards
5
6
APPENDIX 1. DEFINITIONS .
The following are definitions for the specific purpose of this advisory circular
.
Construct a municipal solid waste landfill (MSWLF) means excavate or grade land, or raise
structures, to prepare a municipal solid waste landfill as permitted by the appropriate regulatory
or permitting authority
.
Establish a municipal solid waste landfill (MSWLF) means receive the first load of
putrescible waste on site for placement in a prepared municipal solid waste landfill
.
Existing municipal solid waste landfill (MSWLF) means a municipal solid waste landfill that
received putrescible waste on or before April 5, 2000
.
General aviation aircraft means any civil aviation aircraft not operating under 14 CFR Part
119, Certification: Air carriers and commercial operators
.
Municipal solid waste landfill (MSWLF) means publicly or privately owned discrete area of
land or an excavation that receives household waste, and that is not a land application unit,
surface impoundment, injection well, or waste pile, as those terms are defined under 40 CFR §
257 .2. A MSWLF may receive other types of RCRA subtitle D wastes, such as commercial solid
waste, nonhazardous sludge, small quantity generator waste and industrial solid waste, as
defined under 40 CFR § 258 .2. A MSWLF may consist of either a standalone unit or several
cells that receive household waste
.
New municipal solid waste landfill (MSWLF) means a municipal solid waste landfill that was
established or constructed after April 5, 2000 .
Person(s) means an individual, firm, partnership, corporation, company, association, joint-stock
association, or governmental entity. It includes a trustee, receiver, assignee, or similar
representative of any of them (14 CFR Part 1)
.
Public agency means a State or political subdivision of a State; a tax-supported organization
;
or an Indian tribe or pueblo (49 U .S.C. § 47102(15))
.
Public airport means an airport used or intended to be used for public purposes that is under
the control of a public agency; and of which the area used or intended to be used for landing,
taking off, or surface maneuvering of aircraft is publicly owned (49 U .S.C. § 47102(16))
.
Putrescible waste means solid waste which contains organic matter capable of being
decomposed by micro-organisms and of such a character and proportion as to be capable of
attracting or providing food for birds (40 CFR § 257 .3-8) .
Scheduled air carrier operation means any common carriage passenger-carrying operation
for compensation or hire conducted by an air carrier or commercial operator for which the air
carrier, commercial operator, or their representatives offers in advance the departure location,
departure time, and arrival location . It does not include any operation that is conducted as a
supplemental operation under 14 CFR Part 119, or is conducted as a public charter operation
under 14 CFR Part 380 (14 CFR § 119 .3) .
Solid waste means any garbage, or refuse, sludge from a wastewater treatment plant, water
supply treatment plant, or air pollution control facility and other discarded material, including
solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community activities, but does not include solid or
dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows
or industrial discharges that are point sources subject to permit under 33 U .S.C. § 1342, or
source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as
amended (68 Stat. 923) (40 CFR § 258 .2) .
