PROPOSED RULEMAKING
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 271, 279, 287 AND 293]
Notification of Proximity to Airports
[36 Pa.B. 7867]
[Saturday, December 23, 2006]The Environmental Quality Board (Board) proposes to amend Chapters 271, 279, 287 and 293. The amendments are based on a petition by the United States Department of Defense (DOD) requesting that the Department of Environmental Protection (Department) address the potential hazards posed to military aircraft from bird strikes near waste landfill and transfer facilities. The proposed rulemaking would broaden the definition of ''airport'' to include military airports, extend existing airport notification requirements for waste landfills to military airports and impose an airport notification requirement on waste transfer facilities.
This proposed rulemaking was adopted by the Board at its meeting of October 17, 2006.
A. Effective Date
This proposed rulemaking will go into effect upon final-form publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Stephen Socash, Chief, Division of Municipal and Residual Waste, P. O. Box 8472, Rachel Carson State Office Building, Harrisburg, PA 17105-8472, (717) 787-7381; or Susan Seighman, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposed rulemaking appears in Section I of this preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available on the Department's website: www.depweb.state.pa.us.
C. Statutory Authority
The proposed rulemaking is being made under the authority of the following:
The Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.101--6018.1003), which in section 105(a) of the SWMA (35 P. S. § 6018.105(a)) grants the Board the power and the duty to adopt the rules and regulations of the Department to accomplish the purposes and carry out the provisions of the SWMA. Sections 102(4) and 104(6) of the SWMA (35 P. S. §§ 6018.102(4) and 6018.104(6)) provide the Department with the power and duty to regulate the storage, collection, transportation, processing, treatment and disposal of solid waste to protect the public health, safety and welfare.
The Municipal Waste Planning, Recycling and Waste Reduction Act (Act 101) (53 P. S. §§ 4000.101--4000.1904), which in section 302 (53 P. S. § 4000.302) gives the Board the power and duty to adopt the regulations of the Department to accomplish the purposes and carry out the provisions of Act 101. Sections 102(b)(3) and 301(6) of Act 101 (53 P. S. §§ 102(b)(3) and 301(6)) state the intent of protecting the public health, safety and welfare from the dangers associated with transportation, processing, treatment, storage and disposal of municipal waste and provide the Department with the power and duty to abate public nuisances.
Section 1917-A of The Administrative Code of 1929 (71 P. S. § 510-17) authorizes and requires the Department to protect the citizens of this Commonwealth from unsanitary conditions and other nuisances, including a condition that is declared to be a nuisance by any law administered by the Department. Section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) grants the Board the power and the duty to formulate, adopt and promulgate rules and regulations as determined by the Board for the proper performance of the work of the Department.
D. Background and Purpose
Current municipal and residual waste regulations require applicants for municipal and residual waste landfills, construction and demolition waste landfills and residual waste disposal impoundments to notify public airports if a new or expanded facility is proposed within 6 miles of an airport runway. There is no similar notification requirement for municipal or residual waste transfer facilities because these operations are primarily conducted in enclosed structures. The DOD maintains, and the Department concurs, that there is a concern that waste transfer activities, such as waste loading, unloading and storage, may still occur outside of an enclosed building and pose a risk to aircraft approaching or departing from nearby airports. This is a risk to public health and safety and includes military personnel and people living in the area. The risk of bird strikes to aircraft becomes negligible when the airport runway is greater than 6 miles from the waste transfer facility. Accordingly, the DOD petitioned the Department on July 28, 2004, to require an airport notification from waste transfer facilities. Furthermore, since the current definition of ''airport'' in §§ 271.1 and 287.1 (relating to definitions) does not include the term ''military airports,'' the petition also requests that the Department include this term in the definition.
The Board accepted the petition for further study on October 19, 2004. The Department agreed with the petition and submitted a Petition Report to the Board on April 19, 2005, recommending that the municipal and residual waste regulations be amended as requested by the DOD.
Adding the term ''military airport'' to the definition of ''airport'' in §§ 271.1 and 287.1 will broaden the definition to address DOD airfields as well as public airports. With the exception of two strictly military airports in this Commonwealth, many public airports also serve as military airports. New §§ 279.112 and 293.112 (relating to notification of proximity to airport) will require a new or expanding waste transfer facility to provide notification to airports, including military airports, if the facility is within 6 miles of the airport runway. By including military airports in the definition of ''airport,'' the notification requirements are also being extended to military airports for new or expanded landfills.
The proposed rulemaking was presented to the Solid Waste Advisory Committee (SWAC) on July 14, 2005. Some members of the SWAC, representing the interests of the waste industry, opposed this proposed rulemaking. These members asserted that, unlike landfills, waste transfer facilities do not attract birds as the activities are primarily conducted in enclosed structures. Another industry concern was the potential lack of a timely response to the notice from the airport, which might delay permit issuance. Other concerns expressed included: the intent of the petition; the additional notification burden imposed on the waste industry; the airport not responding in a timely fashion or commenting on nontechnical issues; and this requirement applying to a large number of facilities.
The Department, in agreement with the petition filed by the DOD, maintains that this proposed rulemaking will provide for increased safety for both military and nonmilitary personnel operating aircraft from airports in the vicinity of waste transfer facilities and landfills. The Department further discussed its position with the SWAC on May 11, 2006, but the SWAC voted against the proposed rulemaking.
E. Summary of Regulatory Requirements
A description of the proposed regulations is as follows:
§§ 271.1 and 287.1. Definitions.
The term ''airport'' is proposed to be amended in these sections by adding ''military airport'' to the definition. By including ''military airport'' in the definition of ''airport,'' regulatory requirements that relate to airports, current and proposed, will apply to military airports.
§§ 279.112 and 293.112. Notification of proximity to airport.
These new sections would require applicants to notify the Bureau of Aviation (Bureau) of the Department of Transportation, the Federal Aviation Agency (FAA) and the applicable airport if the proposed new or expanding municipal waste transfer facility will be within 6 miles of the airport runway. The proposed sections would also require the applicant to include copies of these notifications in the permit application. The proposed sections would not affect most existing transfer facilities; they would apply only to new facilities and expansions of existing facilities.
Since there are no comparable Federal regulations that address waste transfer facilities, these regulations are considered to be more stringent than Federal requirements.
The proposed rulemaking will have a minimal economic impact on the regulated community. Waste landfill and transfer facility applicants will incur the costs associated with notifying the Bureau, the FAA and the airport. It is anticipated that the cost of each notification will not exceed $50, with the total cost therefore not exceeding $150 per application. These costs represent estimated charges for certified mail to these three entities. No additional Department permit fees are being imposed on the applicant through the proposed rulemaking.
The proposed rulemaking will be available for public review and comment following publication in the Pennsylvania Bulletin, as provided under the public participation provisions required by regulation and as described in Section I of this preamble. The public comment period will extend for 30 days. Public comments will be addressed in a comment and response document prepared by the Department after the comment period has expired.
F. Benefits, Costs and Compliance
Benefits
The proposed rulemaking will benefit both military and nonmilitary personnel operating and traveling in aircraft near waste landfill and transfer facilities, as they either approach or depart the airport runway, by reducing the potential risk of bird strikes to their aircraft, which can cause hazards to surrounding communities, as well.
Compliance costs
The proposed rulemaking will minimally increase the application cost, by means of the proposed notification requirement, only for a new or expanding waste landfill or transfer facility and in these cases, only for those facilities that are proposed within 6 miles of an airport runway. As applications for new or expanding landfills are estimated at less than ten, and new and expanding transfer facilities at a frequency of two or three per year, this minimal application cost increase will not affect the several hundred municipal and residual waste transfer facilities that are currently permitted in this Commonwealth. The applicant will be required to notify the relevant airport, the Bureau and the FAA. The cost of each notice, sent by certified mail including a request for a return receipt, is estimated to be no more than $50 current value, with the total cost of notification for each applicant estimated at $150. The total cost per year, therefore, for up to 12 applicants sending notification to the two agencies and the airport is estimated at $1,800.
There are no additional permit fees associated with the proposed rulemaking and no indirect cost to the regulated community or the Department.
Compliance assistance plan
Since the proposed rulemaking would impose notification requirements only, a compliance assistance plan is not required.
Paperwork requirements
As part of its permit application, an applicant for a new or expanding waste landfill or transfer facility will be required to send to the Department copies of responses received from the two agencies and airport in response to the notices. This is not expected to increase compliance costs.
G. Sunset Review
The regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfills the goals for which they were intended.
H. Regulatory Review
In accordance with section 5(a) and (f) of the Regulatory Review Act (71 P. S. §§ 745.1--745.15), the Department submitted a copy of the proposed amendments, on December 6, 2006, to the Legislative Reference Bureau for publication of notice of proposed rulemaking in the Pennsylvania Bulletin, and to the Independent Regulatory Review Commission (Commission). In accordance with section 5(f) of the the act (71 P. S. § 745.5(f)), the Department will submit the proposed regulations and the required material to the Chairpersons of the House Environmental Resources and Energy Committee and the Senate Environmental Resources and Energy Committee (Committees) no later than the second Monday after the date by which both Committees designations have been published in the Pennsylvania Bulletin. In addition to submitting the proposed amendments, the Department has provided the Commission and will provide the Committees with a copy of a detailed Regulatory Analysis Form. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
I. Public Comments
Written comments. Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be postmarked by January 22, 2007. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be postmarked by January 22, 2007. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulation will be considered.
Electronic comments. Comments may be submitted electronically to the Board at RegComments@state.pa.us and must be received by the Board by January 22, 2007. A subject heading of the proposal and a return name and address must be included in each transmission.
KATHLEEN A. MCGINTY,
ChairpersonFiscal Note: 7-406. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VIII. MUNICIPAL WASTE
CHAPTER 271. MUNICIPAL WASTE MANAGEMENT--GENERAL PROVISIONS
Subchapter A. GENERAL § 271.1. Definitions.
The following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Airport--''Public airport,'' as defined in 67 Pa. Code § 471.2 (relating to definitions). [The term does not include heliports.]
(i) The term includes military airports.
(ii) The term does not include heliports.
* * * * *
CHAPTER 279. TRANSFER FACILITIES
Subchapter B. APPLICATION REQUIREMENTS FOR TRANSFER FACILITIES
GENERAL § 279.112. Notification of proximity to airport.
An applicant shall notify the Bureau of Aviation of the Department of Transportation, the Federal Aviation Administration and the airport if a proposed transfer facility or expansion is within 6 miles of an airport runway. The application must include a copy of each notification and each response to each notification received by the applicant.
ARTICLE IX. RESIDUAL WASTE MANAGEMENT
CHAPTER 287. RESIDUAL WASTE MANAGEMENT--GENERAL PROVISIONS
Subchapter A. GENERAL § 287.1. Definitions.
The following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Airport--A public airport, as defined in 67 Pa. Code § 471.2 (relating to definitions). [The term does not include heliports.]
(i) The term includes military airports.
(ii) The term does not include heliports.
* * * * *
CHAPTER 293. TRANSFER FACILITIES FOR RESIDUAL WASTE
Subchapter B. APPLICATION REQUIREMENTS FOR TRANSFER FACILITIES § 293.112. Notification of proximity to airport.
An applicant shall notify the Bureau of Aviation of the Department of Transportation, the Federal Aviation Administration and the airport if a proposed transfer facility or expansion is within 6 miles of an airport runway. The application must include a copy of each notification and each response to each notification received by the applicant.
[Pa.B. Doc. No. 06-2515. Filed for public inspection December 22, 2006, 9:00 a.m.]
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