[Federal Register: July 11, 2002 (Volume 67, Number 133)]
[Rules and Regulations]               
[Page 45915-45920]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy02-14]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[F-2002-AIRF-FFFF; FRL-7227-9]
RIN 2050-AE91

 
Municipal Solid Waste Landfill Location Restrictions for Airport 
Safety

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to amend the location 
restriction requirements in the criteria for municipal solid waste 
landfills (MSWLFs). EPA is amending this provision in order to 
incorporate new landfill siting requirements enacted in the Wendell H. 
Ford Aviation Investment and Reform Act for the 21st Century (Ford 
Act). The Ford Act siting restrictions apply to specified smaller 
public airports to address the potential hazard that birds attracted to 
MSWLFs may pose to aircraft operations. Today's amendment does not 
affect existing MSWLFs.
    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse comment. 
However, in the ``Proposed Rules'' section of today's Federal Register, 
we are publishing a separate document that will serve as the proposal 
to this rule in the event the public chooses to file adverse comments. 
In that event, we will address all public comments in a subsequent 
final rule based on the proposed rule; and, we will not institute a 
second comment period on this action. Any parties interested in 
commenting must do so at this time.

DATES: This direct final rule is effective on October 9, 2002, without 
further notice, unless EPA receives adverse comment by August 12, 2002. 
If adverse comment is received, EPA will publish a timely withdrawal in 
the Federal Register informing the public that this rule will not take 
effect.

[[Page 45916]]


ADDRESSES: This section provides addresses regarding: (1) Where and in 
what form you should submit responses to today's direct final rule and 
(2) where you can view public comments responding to this rule. Please 
reference RCRA Docket No. F-2002-AIRF-FFFF in your comments. You may 
submit your comments (1) in hard copy (paper) either by mail or by hand 
or (2) using electronic mail, as follows:
     Mail: Submit an original and two hard copies to the RCRA 
Docket Information Center, Office of Solid Waste (5305W), U.S. 
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania 
Ave., NW, Washington, DC 20460.
     Hand Deliveries: Submit an original and two hard copies to 
the RCRA Information Center (RIC), Crystal Gateway I, First Floor, 1235 
Jefferson Davis Highway, Arlington, Virginia 22202.
     Electronic Submissions: Via the Internet to: rcra-
docket@epa.gov. Comments in electronic format should also be identified 
by RCRA Docket No. F-2002-AIRF-FFFF. You must provide your electronic 
submissions as ASCII files; and, you must avoid the use of special 
characters and any form of encryption.
    See the SUPPLEMENTARY INFORMATION section for information about 
where and how you can view the docket for this rule, including 
electronic access to some of the information such as the docket index 
and supporting documents.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In 
the Washington, D.C., metropolitan area, call 703-412-9810 or TDD 703-
412-3323 (hearing impaired).
    For information on specific aspects of this rule, contact Mary T. 
Moorcones, Municipal and Industrial Solid Waste Division of the Office 
of Solid Waste (mail code 5306W), U.S. Environmental Protection Agency 
Headquarters (EPA, HQ), 1200 Pennsylvania Avenue, NW, Washington, DC 
20460; telephone: 540-338-1348; e-mail: 
moorcones.mary@epamail.epa.gov>.
    Some information about this rule can also be accessed via the 
Internet at: http://www.epa.gov/epaoswer/non-hw/muncpl/landfill/
airport.htm>.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are public or private 
individuals or groups seeking to construct or establish new municipal 
solid waste landfills (MSWLFs) near specified airports after April 5, 
2000. Affected categories and entities include the following:

------------------------------------------------------------------------
                Category                  Examples of regulated entities
------------------------------------------------------------------------
Federal Government.....................  Agencies constructing or
                                          establishing new MSWLFs within
                                          six miles of a public airport.
State, Local and Tribal Government.....  Governments constructing or
                                          establishing new MSWLFs within
                                          six miles of a public airport.
------------------------------------------------------------------------

    The table above is not intended to be exhaustive but rather to 
provide examples of entities likely to be regulated by this action. To 
determine whether your facility would be impacted by this action, you 
should carefully examine the applicability criteria in the rule. If you 
have questions regarding the applicability of this action to a 
particular facility, please contact Mary T. Moorcones, U.S. 
Environmental Protection Agency, Office of Solid Waste (5305W), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460; telephone: 540-338-1348; 
e-mail: moorcones.mary@epamail.epa.gov>. Entities considering 
construction or establishment of a new MSWLF also should contact the 
Federal Aviation Administration (FAA) to determine if an airport within 
six statute miles of the new MSWLF meets the criteria established by 
FAA to comply with the statute. The FAA can be contacted at the FAA's 
Office of Airport Safety and Standards, Airport Safety and 
Certification Branch, at 800-842-8736, Ext. 73085 or via e-mail at 
WebmasterARP@faa.gov>.

Acronyms

    The full names for the acronyms used in this document are:

------------------------------------------------------------------------
                Acronym                             Definition
------------------------------------------------------------------------
AC.....................................  Federal Aviation Administration
                                          Advisory Circular 150/5200-34,
                                          together with its Appendix 1,
                                          dated August 26, 2000.
CFR....................................  The United States Code of
                                          Federal Regulations.
EPA....................................  The United States Environmental
                                          Protection Agency.
FAA....................................  The United States Federal
                                          Aviation Administration.
Ford Act...............................  Wendell H. Ford Aviation
                                          Investment and Reform Act for
                                          the 21st Century.
MSWLF..................................  Municipal Solid Waste Landfill.
NTTA...................................  National Technology and
                                          Transfer Act of 1995.
OMB....................................  The United States Office of
                                          Management and Budget.
RCRA...................................  The Resource Conservation and
                                          Recovery Act.
RIC....................................  Resource Conservation and
                                          Recovery Act Information
                                          Center.
UMRA...................................  Unfunded Mandates Reform Act of
                                          1995.
U.S....................................  United States.
U.S.C..................................  United States Code.
------------------------------------------------------------------------

Where To Find and View Information About This Rule

    All documents in the docket for this rulemaking, including public 
comments, are available for review in the RCRA Information Center 
(RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis 
Highway, Arlington, VA. The RIC is open from 9 a.m. to 4 p.m., Monday 
through Friday, excluding federal holidays. To review the docket 
materials in person, we recommend that the public make an appointment 
by calling 703-603-9230. The public can hard copy a maximum of 100 
pages from the docket at no charge. Additional copies cost $0.15/page.
    You can access the Index to the docket and the supporting documents 
electronically on the Internet at: http://www.epa.gov/epaoswer/non-hw/
muncpl/landfill/airport.htm>. If you access the information 
electronically, you can download or print copies free of charge.

Preamble

Outline

I. Legal Authority for Today's Direct Final Rule
II. Why We Are Amending the MSWLF Location Restrictions for Airport 
Safety
III. Description of Current Regulations Before Today's Action
IV. Description of Today's Amendment to MSWLF Location Restrictions 
for Airport Safety Criteria for MSWLFs
    A. Landfills to Which the New Restrictions Apply
    B. Exemptions to the Limitations
V. How the States and Tribes Implement This Rule

[[Page 45917]]

VI. Why Today's Rule is Direct Final Promulgation Without Prior 
Proposal
VII. Applicability of Relevant Statutes and Executive Orders to 
Today's Rule
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. National Technology Transfer & Advancement Act of 1995
    I. Executive Order 12898: Environmental Justice
    J. Executive Order 13211: Energy Effects
    K. Congressional Review Act

I. Legal Authority for Today's Direct Final Rule

    The EPA is promulgating this rule under Sections 1008(a), 2002 
(general rule making authority), and 4004 of the Resource Conservation 
and Recovery Act of 1976, as amended, 42 U.S.C. 6907(a), 6912, 6944.

II. Why We Are Amending the MSWLF Location Restrictions for Airport 
Safety

    On April 5, 2000, Congress enacted the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (Ford Act), Public Law 
106-181. Section 503 of the Ford Act includes a provision limiting the 
``construction or establishment'' of municipal solid waste landfills 
(MSWLFs) within six miles of certain smaller public airports. The FAA 
issued guidance regarding the requirements of the Ford Act in FAA 
Advisory Circular (AC) 150/5200-34 (August 26, 2000). Today's rule 
incorporates the statutory requirement into EPA's Criteria for 
Municipal Solid Waste Landfills, 40 CFR part 258. Specifically, we are 
amending the location restriction requirements pertaining to airport 
safety found in Sec. 258.10 of the criteria by adding this new location 
restriction to the existing location restrictions.
    Section 503 of the Ford Act was enacted to address the potential 
hazard posed to aircraft by birds attracted to landfills. According to 
the Federal Aviation Administration (FAA), an estimated 87 percent of 
the collisions between wildlife and civil aircraft occurred on or near 
airports when aircraft were less than 2,000 feet above ground level. 
Collisions with wildlife at these altitudes are especially dangerous 
because aircraft pilots have minimal time to recover. Databases managed 
by the FAA and the United States Air Force show that more than 54,000 
civil and military aircraft reported strikes with wildlife from 1990 to 
1999 (FAA AC No. 150/5200-34).

III. Description of Current Regulations Before Today's Action

    40 CFR 258.10 sets forth location restrictions for MSWLFs to 
address airport safety. Section 258.10(a) and (c) contain requirements 
for new MSWLFs, existing MSWLFs and lateral expansions of landfills 
that are located within 10,000 feet of any airport runway used by 
turbojet aircraft or within 5,000 of any airport runway used only by 
piston-type aircraft. Owners or operators of such landfills are 
required to (1) demonstrate that the MSWLFs are designed and operated 
so as not to ``pose a bird hazard to aircraft,'' (2) place a copy of 
the demonstration in the MSWLF operating record, and (3) notify the 
State Director that it has been placed in the operating file. ``State 
Director'' is defined as ``the chief administrative officer of the lead 
state agency responsible for implementing the state permit program for 
40 CFR part 257, subpart B and 40 CFR part 258 regulated facilities.''
    Section 258.10(b) applies to new MSWLFs and lateral expansions 
proposed to be constructed within a five-mile radius of the end of any 
airport runway used by turbojet or piston-type aircraft. For such 
proposed new MSWLFs and lateral expansions, the owner or operator must 
notify the affected airport and the FAA.
    Section 258.10(d) defines ``airport'' to mean a ``public-use 
airport open to the public without prior permission and without 
restrictions within the physical capacities of available facilities.'' 
This subsection also defines ``bird hazard.''

IV. Description of Today's Amendment to MSWLF Location Restrictions 
for Airport Safety

    Today's direct final rule adds a new paragraph (e) to Sec. 258.10 
that incorporates the location restrictions enacted in Section 503 of 
the Ford Act prohibiting construction or establishment of a new MSWLF 
within six miles of a ``public airport.'' A ``public airport'' is one 
that: (1) Has received grants under the Airport and Airway Improvement 
Act of 1982, as amended (chapter 471, 49 U.S.C. 47101, et seq.) and (2) 
is primarily served by general aviation aircraft and regularly 
scheduled air carrier operations that use aircraft designed for 60 
passengers or less. Today's direct final rule applies to MSWLFs (as 
defined in 40 CFR 257.3 through 257.8) that receive putrescible waste 
(as defined in 40 CFR 257.3 through 257.8).

A. Landfills to Which the New Restrictions Apply

    The new six (6) mile restriction only applies to new MSWLFs 
constructed or established after April 5, 2000. ``Construct a MSWLF'' 
is defined as in Appendix 1 of the FAA AC No. 150/5200-34 as ``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 MSWLF'' is defined in Appendix 1 of the AC 
as a MSWLF that ``receives[s] the first load of putrescible waste on 
site for placement in a prepared municipal solid waste landfill.''
    To determine whether an airport in the vicinity of a proposed MSWLF 
is an airport that is subject to the Ford Act, the landfill owner or 
operator should contact the FAA. As the FAA guidance indicates, those 
airports covered by the Ford Act do not fall into a classification or 
category that has been established by the FAA or other legislation. See 
FAA AC No. 150/5200-34, section 8. If the airport in question does not 
meet the definition in the Ford Act, then today's rule does not apply 
to the proposed landfill. If the airport in question meets the Ford Act 
definition, then the proposed landfill must be located at least six 
miles from the airport. The AC also provides guidance for determining 
whether a new MSWLF falls within the six mile range. The six mile 
distance is to be measured from ``the closest point of the airport 
property boundary to the closest point of the MSWLF property boundary. 
(FAA AC No. 150/5200-34, section 9.)

B. Exemptions to the Limitations

    The six mile siting limitation does not apply to: (1) A MSWLF where 
construction or establishment began on or before April 5, 2000; (2) an 
existing MSWLF that received putrescible waste on or before April 5, 
2000; (3) an existing MSWLF (constructed or established before April 5, 
2000) that is expanded or modified after April 5, 2000; or (4) MSWLFs 
in the State of Alaska. In addition, the aviation agency of the state 
in which the airport is located can request an exemption from the six 
mile limitation from the FAA for a new MSWLF. Section 10 of FAA AC No. 
150/5200-34 sets out the procedure for applying for an exemption.
    New MSWLFs that are not subject to the six mile siting limitation, 
including those in the State of Alaska, continue to be subject to the 
landfill siting criteria at 40 CFR 258(a)-(d).

[[Page 45918]]

V. How the States and Tribes Implement This Rule

    EPA recognizes that today's rule and the language in the Ford Act 
are more stringent than the existing Sec. 258.10 location restrictions, 
because the boundary for newly constructed or established MSWLFs is 
moved from five to six miles from certain airports. However, EPA does 
not deem this change to be significant. This provision concerns only 
new MSWLFs constructed or established after April 5, 2001; and, EPA 
does not expect many new landfills to be constructed, and expects fewer 
still to be located in the vicinity of an airport defined in section 
503 of the Ford Act. In addition, EPA notes that the statutory 
restriction in section 503 of the Ford Act applies to such new MSWLFs 
regardless of whether EPA incorporates its terms into the MSWLF 
criteria. Therefore states are not required to amend permit programs 
which have been determined to be adequate under 40 CFR part 239. States 
however have the option to amend statutory or regulatory definitions 
pursuant to today's direct final rule. If a state chooses to amend its 
permit program pursuant to today's action, the state must notify the 
Regional Administration of the modification as provided by 40 CFR 
239.12. Today's amendments are directly applicable to landfills in 
states without an approved permit program under part 239 and in Indian 
Country. We also encourage tribes to adopt today's amendments into 
their programs.

VI. Why Today's Rule Is Direct Final Promulgation Without Prior 
Proposal

    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse comment 
because it simply incorporates the legislative directive of the Ford 
Act. EPA is making this change in order to eliminate potential 
confusion between the new requirements under the Ford Act and the MSWLF 
criteria, promulgated in 1991 pursuant to the Resource Conservation and 
Recovery Act (RCRA).
    However, in the ``Proposed Rules'' section of today's Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to amend the location restrictions' provision of 
the MSWLF criteria in the event adverse comments are received. This 
final rule will be effective on October 9, 2002, without further notice 
unless we receive adverse comment on the direct final rule by August 
12, 2002. If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting must do so at this time. A comment will be considered 
adverse if it: (1) Is negative and addresses the basis or purpose of 
the direct final rule; (2) suggests that the rule should not be adopted 
or offers facts or data contrary to the basis upon which EPA relied in 
issuing the direct final rule; (3) recommends changes that suggest that 
the rule without these changes would be inappropriate; and (4) is 
germane. A comment is not adverse if it: (1) Is not clearly related to 
the subject of the rule and/or (2) supports the rule or is irrelevant 
to the rule (e.g., a comment addressing an aspect of the program not 
considered in the rule).

VII. Applicability of Relevant Statutes and Executive Orders to 
Today's Rule

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and therefore subject to Office of 
Management and Budget (OMB) review and the other provisions of the 
Executive Order. Executive Order 12866 defines a significant regulatory 
action as one that is likely to result in actions that may: (1) Have an 
annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.''
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review. Today's rule, deals only with 
siting of future individual MSWLFs after the statute's passage, does 
not have an adverse impact on the economy, the environment, the public, 
or governments. Similarly, it neither interferes with other agencies 
nor impacts other programs, the President's priorities, or legal 
mandates. Indeed, today's direct final rule codifies a legal mandate 
that enhances public safety and is more protective of wildlife than 
doing nothing.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., 
generally requires an agency to prepare, and make available for public 
comment, a regulatory flexibility analysis that describes the impact of 
a proposed or final rule on small entities (i.e., small businesses, 
small organizations, and small governmental jurisdictions). The 
regulatory flexibility analysis is not required if the head of an 
agency certifies that the rule will not have a significant adverse 
impact on a substantial number of small entities. If the agency 
certifies that there is no such impact, the agency must provide a 
statement of the factual basis for the certification.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not impose any requirements on small entities.
    The following discussion explains EPA's factual basis for our 
certification that the rule will not have a significant adverse impact 
on a substantial number of small entities. This direct final rule does 
not impact any existing MSWLFs, only future construction and 
establishment of MSWLFs begun after the date of the enactment of the 
statute (April 5, 2000). There will be no added costs to those entities 
involved in establishing or constructing new MSWLFs because this direct 
final rule will not increase the requirements for landfills begun on or 
before the enactment of the statute; it will only affect their 
location. Similarly, it will not increase requirements for existing 
landfills, regardless of size. As a result, today's direct final rule 
will not impose significant new burdens on small entities. Therefore, 
for the reasons stated above, the EPA certifies that the rule will not 
have a significant impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of regulatory actions on state, local, and tribal governments, 
and the private sector. Under Section 202 of the UMRA, EPA generally 
must prepare a written

[[Page 45919]]

statement, including a cost-benefit analysis, for proposed and final 
rules with ``Federal mandates'' that may result in expenditures to 
state, local, and tribal governments--either in the aggregate or to the 
private sector--of $100 million or more in any one year. Before 
promulgating an EPA rule for which a written statement is needed, 
Section 205 of the UMRA generally requires EPA to identify and consider 
a reasonable number of alternatives and adopt the least costly, most 
cost effective, or least burdensome alternative that achieves the 
objective of the rule. The above requirements of Section 205 do not 
apply when they are inconsistent with applicable law. Moreover, Section 
205 allows EPA to adopt an alternative other than the least costly, 
most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed 
(under Section 203 of the UMRA) a small government agency plan. The 
plan must provide for: (1) Notifying potentially affected small 
governments; (2) enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant federal intergovernmental mandates; and (3) 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's direct final rule does not contain any federal mandates 
that are covered under the regulatory provision of Title II of the UMRA 
that apply to state, local, or tribal governments or the private 
sector. The rule does not impose any additional enforceable duty on any 
state, local, or tribal governments or on the private sector. Thus, 
today's direct final rule is not subject to the requirements of 
Sections 202 and 205 of UMRA.

D. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., requires the 
federal government (and thus EPA) to minimize the paperwork burden 
resulting from any collection of information by or for the federal 
government. Under 44 U.S.C. 3501 et seq., EPA must submit a request to 
collect the information, together with a copy of the rule, to the 
Office of Management and Budget (OMB) in those cases where EPA is 
collecting information in a notice of proposed or final rule making. 
EPA does not plan to submit an ICR to OMB for review under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. because there are no 
information collection requirements associated with today's direct 
final rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
The phrase, ``policies that have federalism implications,'' is defined 
in the Executive Order to include regulations that have ``substantial 
direct effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    Today's direct final rule does not have federalism implications. It 
will not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. The direct final 
rule does not impose any requirements, implementation duties, 
enforcement duties, monitoring requirements, or reporting requirements 
on states. Thus, Executive Order 13132 does not apply to this direct 
final rule.

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development or regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.''
    Under section 5(b) of Executive Order 13175, EPA may not issue a 
regulation that has tribal implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by tribal governments, or EPA consults with 
tribal officials early in the process of developing the proposed 
regulation. Under section 5(c) of Executive Order 13175, EPA may not 
issue a regulation that has tribal implications and that preempts 
tribal law, unless the Agency consults with tribal officials early in 
the process of developing the proposed regulation.
    This direct final rule does not have tribal implications, as 
specified in Executive Order 13175. Today's action incorporates 
requirements that are already in effect pursuant to the Ford Act. Thus, 
Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and must explain why the planned regulation 
is preferable to other potentially effective and reasonably feasible 
alternatives considered by the EPA.
    This direct final rule is not subject to the Executive Order 
because it is not economically significant as defined in Executive 
Order 12866, and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action, i.e., 
hazards to aircraft from birds attracted to municipal solid waste 
landfills, present a disproportionate risk to children.

H. National Technology Transfer and Advancement Act of 1995

    Section 2(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTA''), Public Law 104-113, Section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or would be otherwise impractical. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by voluntary consensus standards bodies. The NTTA 
directs EPA to provide Congress, through OMB, explanations when the EPA 
decides not

[[Page 45920]]

to use available and applicable voluntary consensus standards.
    Today's direct final rule does not involve technical standards. 
Therefore, EPA did not consider the use of any voluntary consensus 
standards.

I. Executive Order 12898: Environmental Justice

    EPA has undertaken to incorporate environmental justice into its 
policies and programs through: (1) Executive Order 12898, ``Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations''; (2) EPA's April 1995, ``Environmental Justice 
Strategy, Office of Solid Waste and Emergency Response Environmental 
Justice Task Force Action Agenda Report''; and (3) the National 
Environmental Justice Advisory Council. EPA is committed to addressing 
environmental justice concerns, and has assumed a leadership role in 
environmental justice initiatives to enhance environmental quality for 
all residents of the United States. The Agency's goals are to ensure: 
(1) That no segment of the population--regardless of race, color, 
national origin, or income--bears disproportionately high and adverse 
human health and environmental effects as a result of EPA's policies, 
programs, and activities; and (2) that all people live in clean and 
sustainable communities. The EPA believes that today's direct final 
rule, which conforms the language in 40 CFR 258.10 to the Ford Act, has 
no adverse environmental or economic impact on any minority or low-
income group, or on any other type of affected community. These 
standards would not affect the location of any MSWLF other than to 
prohibit the location of MSWLFs within six miles of a public airport as 
defined in the direct final rule.

J. Executive Order 13211: Energy Effects

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' because it is not a significant regulatory 
action under Executive Order 12866.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that, before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to the U.S. Senate, the U.S. House of Representatives, and to the 
Comptroller General of the United States. Additionally, under Section 
804, a major rule cannot take effect until 60 days after it is 
published in the Federal Register.
    Accordingly, EPA submitted a report containing today's direct final 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in today's Federal Register. Although 
this rule is not a ``major rule'' as defined by 5 U.S.C. 804(2), this 
rule will be effective October 9, 2002, unless EPA publishes a 
withdrawal in the Federal Register.

List of Subjects in 40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and disposal, Water pollution control.

    Dated: May 31, 2002.
Christine Todd Whitman,
Administrator.


    For the reasons discussed in the preamble, title 40 Chapter 1 of 
the Code of Federal Regulations, is amended as follows:

PART 258--[AMENDED]

    1. The authority citation for part 258 continues to read as 
follows:

    Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 
6912(a), 6944, 6945(c) and 6949a(c);

    2. Section 258.10 is amended by adding paragraph (e) to read as 
follows:


Sec. 258.10  Airport safety.

* * * * *
    (e) A new MSWLF unit that receives putrescible waste shall not be 
constructed or established after April 5, 2000 within six (6) miles of 
a public airport that has received federal grant funds under 49 U.S.C. 
47101 and is primarily served by general aviation aircraft and 
regularly scheduled flights of aircraft designed for sixty (60) 
passengers or less. The Federal Aviation Administration has issued 
guidance which includes criteria for determining when an airport is 
covered and has identified those airports meeting the criteria. Anyone 
considering construction or establishment of a new MSWLF within six (6) 
miles of a public airport should contact the Federal Aviation 
Administration. This paragraph (e) does not apply to a new MSWLF unit 
if:
    (1) The state aviation agency of the state in which the airport is 
located requests that the Administrator of the Federal Aviation 
Administration exempt the landfill from the application of this 
paragraph (e), and the Federal Aviation Administration Administrator 
determines that such exemption would have no adverse impact on aviation 
safety;
    (2) The new MSWLF unit is to be constructed or established in the 
State of Alaska; or
    (3) The new MSWLF unit is a lateral expansion of an existing MSWLF 
unit constructed or established as of April 5, 2000.

[FR Doc. 02-16994 Filed 7-10-02; 8:45 am]
BILLING CODE 6560-50-U