Citations
- 245 F. Supp. 2d 695
Full opinion text
MEMORANDUM OPINION
MCLAUGHLIN, District Judge.
Presently pending before the Court in these consolidated cases are various cross-motions for summary judgment. For the reasons that follow, the motions filed by the Commonwealth and Federal Defendants will be granted. The motions filed by the Plaintiffs will be denied. The motion filed on behalf of the Intervenors Jefferson County and Pinecreek Township will likewise be denied.
I. PROCEDURAL HISTORY
Eagle Environmental, L.P., and the Happy Landing Landfill
Plaintiff Khodara Environmental, Inc., general partner acting on behalf of Eagle Environmental, L.P. (collectively referred to as “Eagle”) owns and/or has an interest in several hundreds of acres of land in Washington Township, Jefferson County, Pennsylvania. It has been Eagle’s intention for many years to develop a solid waste disposal facility on the property, known as the “Happy Landing Landfill,” which would be located approximately 5.25 miles from the Dubois-Jefferson County Airport and which would accept municipal waste from various locales having a scarcity of landfill space.
In or around 1990, Eagle began to apply for a series of permits from the Pennsylvania Department of Environmental Protection (“DEP”). On February 9, 1996, the DEP issued certain permits necessary for construction and operation of the landfill, to wit: a Water Obstruction and Encroachment Permit allowing for the filling of certain wetlands, a National Pollutant Discharge Elimination System (NPDES) Permit, a Solid Waste Permit, and an Air Quality Permit. Upon becoming initially permitted, Eagle undertook certain steps relative to the development of the landfill, including obtaining various engineering studies and installing twelve groundwater monitoring wells in June of 1996.
In September 1996, the Pennsylvania Fish and Boat Commission designated three tributaries near the landfill site as wild trout streams. Based on these designations, the DEP determined that certain wetlands in and around the landfill area were of “exceptional value” and should not be filled. Consequently, the DEP concluded that Eagle’s plan to develop and operate the landfill should not have been permitted as proposed in that the plan had included inaccurate information about the streams.
On September 25, 1996, Defendant Steven Beckman, then Regional Director of the DEP, issued an administrative order modifying the Water Obstruction and Encroachment Permit by revoking authorization to fill in any wetlands. The order also suspended the Solid Waste Permit, the Air Quality Permit, the NPDES Permit, and the unmodified portion of the Encroachment Permit. 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 February 7, 1997, Eagle entered into a Consent Order and Agreement (“CO & A”) with the DEP which permitted the release of bonds that Eagle had submitted in the process of obtaining 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 [Pennsylvania Solid Waste Management Act] are met.” All of the permits issued by the DEP to Eagle relative to the Happy Landing Landfill remained suspended pending Eagle’s pursuit of administrative relief in the state courts.
On September 3, 1998, the Environmental Hearing Board issued an administrative order affirming the DEP’s suspension order. The Pennsylvania Commonwealth Court likewise affirmed and, on June 12, 2002, the DEP’s September 25, 1996 suspension order became final when the Pennsylvania Supreme Court denied further review.
In the meantime, on October 9, 1996, Congress enacted the Federal Aviation Reauthorization Act of 1996, Pub.L. No. 104-264 (“FARA”), formerly codified at 49 U.S.C. § 44718(d). Section 1220 of FARA provided, in relevant part:
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.
Eagle originally commenced this action seeking, primarily, a declaration that Section 1220 was unconstitutional and/or that it did not apply to the Happy Landing Landfill. On March 31, 1999, this Court granted partial summary judgment in favor of Eagle by ruling that the statute violated Eagle’s equal protection rights. See Khodara Environmental, Inc. v. Beckman (hereinafter, Khodara I), 91 F.Supp.2d 827, 850-57 (W.D.Pa.1999), aff'd in part, vacated in part and remanded, 237 F.3d 186 (3d Cir.2001). Cross-appeals were taken by various parties to the United States Court of Appeals for the Third Circuit.
While this Court’s March 31, 1999 ruling was on appeal, Congress enacted the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”), which repealed the 1996 Act and added new statutory language codified at 49 U.S.C. § 44718(d). Section 503(d) of AIR-21, which was signed into law on April 5, 2000, provides, in relevant part:
(1) In general. — No person shall construct or establish a municipal waste solid waste landfill ... that receives pu-trescible waste ... within 6 miles of a public airport that ... is primarily served by general aviation aircraft and regularly scheduled flights of aircraft designed for 60 passengers or less unless the State aviation agency of the State in which the airport is located requests that the Administrator of the [FAA] exempt the landfill from the application of this subsection and the Administrator determines that such exemption would have no adverse impact on aviation safety.
(2) Limitation on applicability. — Paragraph (1) shall not apply in the State of Alaska and shall not apply to construction, establishment, expansion, or modification of, or to any other activity undertaken with respect to, a municipal solid waste landfill if the construction or establishment of the landfill was commenced on or before the date of the enactment of this subsection.
49 U.S.C. § 44718(d).
In light of the critical amendment to § 44718(d) effected by AIR-21, the Third Circuit vacated that portion of this Court’s March 31, 1999 opinion which had ruled that the 1996 Act was facially unconstitutional. See Khodara, Environmental, Inc. v. Beckman, 237 F.3d 186 (3d Cir.2001). The case was remanded in order for Eagle to file an amended complaint addressing any claims it might have relative to AIR-21.
On April 6, 2001, Eagle filed an Amended Complaint seeking relief under the Declaratory Judgments Act, 28 U.S.C. §§ 2201 et seq. as against Steven Beck-man, the FAA, and its Administrator, Jane Garvey. Count I of the Amended Complaint seeks a declaration that AIR-21 does not apply to the Happy Landing Landfill under the theory that “construction” and “establishment” of the landfill was “commenced” prior to the enactment date of April 5, 2000. Count II seeks an alternative declaration that Eagle is exempted from the statute’s prohibition pursuant to 49 U.S.C. § 44718(d)(1) in that operation of the Landfill will not have an adverse impact on aviation safety. Counts III through VI of the Amended Complaint seek declarations that AIR-21 is unconstitutional in various respects, to wit: the statute constitutes an unlawful delegation of legislative power to state aviation authorities, compels state agencies to participate in the administration of a federal regulatory program, impairs Eagle’s First Amendment right to petition the government for redress, and deprives Eagle of its equal protection and due process rights. As to all counts, Eagle seeks injunctive relief permanently enjoining Defendants Beckman and Garvey from applying AIR-21’s prohibitions to the Happy Landing Landfill.
The parties are once again before the Court having filed various cross-motions for summary judgment relative to Count I of Eagle’s Amended Complaint. In essence, we are asked to determine whether AIR-21 facially applies to the Happy Landing Landfill, which in turn requires this Court to interpret critical language in § 44718(d)(2). In addition, certain of the parties have raised threshold jurisdictional challenges to Eagle’s claims which we must address. Finally, the FAA and its Administrator Jane Garvey (the “Federal Defendants”) also seek summary judgment as to Eagle’s remaining claims in Counts II through VI of the Amended Complaint. These matters have been briefed and argued and are now ripe for disposition.
Leatherwood, Inc. and The Jefferson Landfill
Plaintiff Leatherwood, Inc. is a Pennsylvania corporation with an interest in over 750 acres of land in Pinecreek Township, Jefferson County, Pennsylvania on which it intends to develop a landfill known as the Jefferson Landfill. In the early 1990’s, Leatherwood developed information and began to submit application materials to the DEP for certain permits necessary to build and operate the landfill. In 1994 Leatherwood submitted to the DEP its application, in final form, for a permit under the Pennsylvania Solid Waste Management Act, 35 P.S. § 6018.101 et seq. (“Solid Waste Permit”). On May 12, 1995 the DEP issued the Solid Waste Permit, along with several other ancillary permits, including:
* a Water Quality NPDES Permit, authorizing a discharge from the Jefferson Landfill’s wastewater treatment facility;
* a Soil and Waterway NPDES Permit authorizing discharge of storm water from certain construction activities described in Leatherwood’s Erosion and Sedimentation Control Plan and the Solid Waste Permit Application;
* a Joint Permit Application, Water Obstruction and Encroachment Permit.
Various administrative appeals were initiated thereafter by interested parties who challenged the DEP’s order granting Leatherwood’s Solid Waste Permit.
Leatherwood meanwhile, with its Solid Waste Permit still in place, undertook additional measures toward the development of its landfill. It began the process of installing several ground water monitoring wells which, under ¶ 24 of the Solid Waste Permit, is designated a “[mjajor construction activity.” (Leatherwood’s Ex. 1, ¶ 24.) The wells were ultimately completed in July of 1995. Leatherwood also engaged a consultant and began preparing its application to construct and operate a gas flaring system as required by ¶ 7 of the Solid Waste Permit and the provisions of the Pennsylvania Air Pollution Control Act. (Id. at ¶ 7.) Leatherwood similarly engaged a consultant to conduct a bird study, which was necessary in order to complete a bird hazard mitigation plan pursuant to ¶ 40 of the Solid Waste Permit. (Id. at ¶ 40.)
Progress on the Jefferson Landfill was interrupted by the passage of Section 1220 of FARA, which made “construction” or “establishment” of the Jefferson Landfill unlawful. Based upon the enactment of Section 1220, the DEP issued an Order on October 21, 1996 suspending Leather-wood’s Solid Waste Permit. (Intervenors’ Ex. to the Resp. of Leatherwood’s Statement of Material Facts, Exhibit 8.) Thereafter, on January 9, 1997, Leatherwood entered into a consent order and agreement with the DEP by which Leatherwood received back its bonds and agreed not to “construct or operate” the landfill unless and until its Solid Waste Permit was reinstated. (Intervenors’ Ex. to the Resp. of Leatherwood’s Statement of Material Facts, Exhibit 7, Finding 4.)
In the wake of this Court’s March 31, 1999 ruling in Khodara I, Leatherwood wrote to the DEP and requested that the suspension of its permits be lifted. The DEP declined to lift the suspension and ordered Leatherwood to submit an air quality permit application for the gas flaring system prior to reinstatement of its Solid Waste Permit. Leatherwood claims that the DEP also made new demands concerning the timing of its submission of a bird mitigation plan.
On March 17, 2000, Leatherwood filed a “Petition for Supersedeas of 1996 Suspension Order.” In response, the DEP issued an order on March 20, 2000 revoking its 1996 Suspension Order and simultaneously suspending the Solid Waste Permit for a second time.
On April 5, 2000, Section 503 of AIR-21 was enacted into law. By that date, Leatherwood had submitted a bird hazard mitigation plan and an air quality plan to the DEP and had also filed renewals and extensions of ancillary federal and state permits. Leatherwood’s most current amendments to its bird hazard mitigation plan were submitted to the DEP in August of 2000.
On August 26, 2000, the FAA issued Advisory Circular 150/5200-34 (the “Advisory Circular”), which purported to give clarity to AIR-21’s applicability and meaning. Following the issuance of its Advisory Circular, the FAA received a letter from the DEP seeking the FAA’s opinion as to whether the new statute would apply to the Jefferson Landfill. Prior to receiving any formal response from the FAA, the DEP on January 5, 2001 sent a decision letter to Leatherwood in which it took the position that the Jefferson Landfill is subject to Section 503’s prohibitions and does not fall within the exception created by subsection (d)(2). In so concluding, the DEP relied largely upon the Advisory Circular as well as correspondence from various other parties. Based on its interpretation of Section 503, the DEP declined to take any further action regarding approval or disapproval of Leatherwood’s bird hazard mitigation plan.
By letter dated January 29, 2001, the FAA notified the DEP that it too considered the Jefferson Landfill subject to the prohibitions of AIR-21. The FAA further advised that, in its view, “construction of a landfill begins when the proponent first ‘turns dirt’ to prepare the first cell to receive municipal solid waste” and that “soil sampling, conducting percolation tests, or installing groundwater monitoring wells do not constitute ‘turning dirt’ to prepare the first cell.” {See Ex. 14, Append. to Leatherwood’s Response to the [FAAJ’s Mot. for Summ. Judg.)
Leatherwood’s Solid Waste Permit was ultimately revoked pursuant to an order entered by the Pennsylvania Environmental Hearing Board on February 28, 2002 at EHB Docket No. 95-097-C. In addition to this set back, Leatherwood has never received a local building permit, an airport zoning permit, a permit demonstrating compliance with the Pennsylvania Sewage Facilities Act, or an air quality permit, all of which are necessary prerequisites to the successful development and operation of the Jefferson Landfill.
On January 17, 2001, Leatherwood commenced an action against the DEP, Steven Beckman, Jefferson County and Pine-creek Township seeking a declaratory judgment relative to the meaning and applicability of Section 503 of AIR-21. By Order dated March 7, 2001, Leather-wood’s case was consolidated with this case. On April 6, 2001, Leatherwood filed is First Amended Complaint, adding the FAA and Jane F. Garvey as Defendants. Leatherwood’s Amended Complaint contains only a single count seeking a declaration from this Court that Leatherwood “commenced construction or establishment” of the Jefferson Landfill prior to the enactment of Section 503 of AIR-21 and is therefore excepted from its general prohibition. Discovery has been completed and the parties have filed cross-motions for summary judgment which are now ripe for disposition.
II. STANDARD OF REVIEW
In evaluating the parties’ various cross-motions for summary judgment, we must determine whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). See also Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 n. 3 (3d Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d Cir.1996)).
III. STANDING/RIPENESS
Initially, we must address the argument raised by certain Defendants that the Plaintiffs lack standing to pursue these actions. In order to establish standing, a plaintiff must demonstrate (i) an “injury in fact,” (ii) a causal connection between the injury and the conduct complained of, and (iii) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision. See Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir.2000) (citation omitted); Artway v. Attorney General of State of New Jersey, 81 F.3d 1235, 1246 (3d Cir.1996). In the context of a declaratory judgment action, standing is satisfied when “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” The St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v. Government of the United States Virgin Islands, 218 F.3d 232, 240 (3d Cir.2000) (quoting Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir.1990)).
A related concept, ripeness, addresses the timing of when an action can be litigated. In determining whether a controversy is “ripe” for review, courts consider whether the issues are fit for judicial resolution and whether withholding judicial resolution will result in hardship to the parties. See Khodara I, 91 F.Supp.2d at 836-837 (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); New Hanover Twp. v. United States Army Corps of Engineers, 992 F.2d 470, 472 (3d Cir.1993)), vacated in part on other grounds, aff'd in part and remanded, 237 F.3d 186 (3d Cir.2001). In the context of declaratory actions, courts consider (a) whether the requisite adversity of interests exists, (b) the potential conclusiveness of a judgment, and (c) whether a judgment would have any practical utility. See Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1298 (3d Cir.), cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996).
A. Eagle Environmental
Insofar as Eagle’s case is concerned, it should be noted that this Court previously addressed challenges to standing and ripeness on two separate occasions. The Court originally considered, but rejected, such challenges in connection with Defendant Beckman’s motion to dismiss in Kho-dara I. Later, those claims were revisited by this Court when Beckman raised them once again in his motion for summary judgment. Beckman sought summary judgment in Khodara I on the grounds that Eagle had allegedly suffered no “injury in fact” — i.e., the FAA Amendment under review had never been formally enforced as to Eagle and, in fact, Eagle’s development of the landfill had been forestalled due to state permitting issues unrelated to the FAA Amendment. It was undisputed in Khodara I that, as a matter of Pennsylvania law, Eagle could not further develop the Landfill unless and until its Solid Waste Permit were reinstated and its bonding requirements satisfied pursuant to the Pennsylvania Solid Waste Management Act. Eagle had been engaged in extensive litigation relative to various permitting issues which it estimated would cost approximately $200,000 or more to pursue. Significantly, Eagle had expressed its intent to complete the Happy Landing Landfill regardless of the outcome of the federal court proceedings, even to the point of modifying its permit application and redesigning the Landfill, if necessary, so as to comply with the DEP’s requirements.
In its ruling of March 31, 1999 this Court determined, based upon the persuasive authority of Triple G Landfills, Inc. v. Board of Commissioners of Fountain County, Indiana, 977 F.2d 287 (7th Cir.1992) and Gary D. Peake Excavating, Inc. v. Town Board of the Town of Hancock, 93 F.3d 68 (2d Cir.1996), that the requirements of standing and ripeness had been satisfied. The Court therefore abided by its original ruling on the point. See Khodara I, 91 F.Supp.2d at 836-44. In discussing the issue of ripeness, this Court noted that Eagle’s constitutional challenges to the FAA Amendment presented purely legal issues suitable for judicial resolution. The Court also concluded that the potential prejudice which Eagle would suffer in the absence of a judicial resolution weighed in favor of a finding of ripeness. Absent a ruling on the statute’s constitutionality, Eagle essentially would have to either forego its past investment and prospective efforts to develop the Landfill in deference to a potentially unlawful statute, or alternatively, invest significant time and money toward the permitting process, not knowing whether it could ultimately raise a successful challenge to the Amendment. Id. at 841-44. Thus, there would be significant hardship to Eagle in the absence of a judicial resolution. The tension inherent in this dilemma led the Court to con-elude that it was faced with a sufficiently “five” controversy for purposes of Article III jurisdiction.
Now that this case is before the Court in the context of AIR-21, the Federal Defendants and the Intervenors have once again raised challenges to Eagle’s standing. The Federal Defendants contend that Eagle has not suffered any “injury in fact” related to Section 503(d) in that there is no evidence demonstrating that either the DEP or the FAA has issued an opinion regarding the applicability of the Act to the Happy Landing Landfill. The Federal Defendants again point out that the actual injury suffered by Eagle — the suspension of its Solid Waste Permit— occurred because of unrelated state environmental issues, not because of action taken by the FAA. Finally, the Federal Defendants claim that Eagle lacks any redressable injury because of the fact that the Pennsylvania Supreme Court’s denial of allocatur acts as a final adjudication of Eagle’s quest to overturn the suspension of its Permit.
The Intervenors contend that the Permit became void, both by its own terms and pursuant to 25 Pa.Code § 271.211(e), when no municipal waste was disposed of at the Landfill within five years of its issuance (i.e. February 9, 2001). Thus, according to the Intervenors, Eagle is presently without any valid Solid Waste Permit and must commence the permitting process all over again if it intends to pursue development of the Happy Landing Landfill.
Although these arguments are presented as challenges to Eagle’s standing, the Court views them as pertaining more to issues of ripeness. For the reasons previously relied upon in Khodara I, the Court once again concludes that the case is sufficiently ripe for review, with one minor exception. First, the relief which Eagle is seeking — a declaration as to the legal meaning of a statutory provision and whether or not it facially applies to the Happy Landing Landfill — involves purely legal issues fit for judicial resolution. See Triple G Landfills, 977 F.2d at 289 (lawsuit was ripe for review where it involved purely legal question of whether county ordinance was a “zoning ordinance” and would not be clarified by administrative proceedings or any other type of factual development). The same is true with respect to Eagle’s claims that raise facial constitutional challenges to Section 503(d) — these are purely legal issues fit for judicial review. Second, Eagle will suffer significant hardship in the absence of a legal ruling. We note, despite the fact that Eagle’s Solid Waste Permit has been finally suspended or possibly even voided, that Eagle still is not entirely without legal recourse with respect to its Solid Waste Permit. At the very least, Eagle retains the option of redesigning its landfill so as to comply with the DEP’s present permitting requirements; indeed, it has consistently professed a commitment to do so and there is no evidence presently of record from which we can conclude otherwise. Thus, Eagle still faces the same Hobson’s choice to which this Court previously alluded: either forego its past investments and prospective efforts to develop the Landfill in deference to a statute which may not even apply to Eagle, or alternatively, invest significant time and additional monies in the Landfill not knowing whether Section 503(d) would ultimately be found applicable (and thus, an impediment) to the Happy Landing Landfill. Simply stated, without a judicial resolution of its case, Eagle is put in a hopeless and extremely expensive position of not knowing whether to “fish or cut bait.”
The Court therefore agrees with Eagle’s position that the status of its Solid Waste Permit is not determinative with respect to standing and ripeness. Even if Eagle is ultimately left with no other recourse but to redesign its landfill and re-commence the state permitting process, we would conclude that it has a cognizable interest in this case and that the issues are ripe for review. See, e.g., Triple G Landfills, Inc., 977 F.2d 287 (in case challenging county ordinance which established stringent landfill permitting criteria, case was ripe even though plaintiff had not yet applied for a state permit or county permit and therefore faced no immediate threat of enforcement under the challenged ordinance). Moreover, while the FAA has not yet acted to officially enforce the statute against Eagle, the fact remains that the Federal Defendants have taken a position as to the meaning of Section 503(d) that is adverse to the interests of Eagle. The potential applicability of the statute creates for Eagle the Hobson’s choice to which the Court previously referred.
In sum, as to Counts I, III, IV, V and VI of Eagle’s Amended Complaint, a substantial controversy exists between the parties who have adverse legal interests, and the controversy is of sufficient immediacy and reality to warrant a declaratory judgment. See The St. Thomas-St. John Hotel & Tourism Ass’n, Inc., 218 F.3d at 240. A judicial ruling will conclusively decide the applicability, if any, of Section 503 to the Happy Landing Landfill and would be of significant practical utility to the parties. See Pic-A-State Pa., Inc., 76 F.3d at 1298. We conclude that Eagle has adequate standing to pursue this action and the issues are ripe for review.
The same cannot be said, however, with respect to Eagle’s second cause of action. In Count II, Eagle asks this Court to declare as a matter of law that Eagle is exempted from the general restriction of Section 503(d)(1) because operation of the Happy Landing Landfill would not adversely impact aviation safety. This claim, unlike the others raised in Eagle’s Amended Complaint, involves a highly fact-intensive determination and is therefore not a purely legal issue fit for judicial resolution.
Furthermore, while the FAA has clearly taken a position in this litigation (adverse to Eagle’s) with respect to the meaning and applicability of Section 503(d), the Agency has never taken any position as to whether exemption of the Happy Landing Landfill would be appropriate. In fact, nothing in our present record suggests that the relevant state aviation agency has ever requested an exemption on behalf of the Happy Landing Landfill, nor is there any evidence to suggest that Eagle has even pursued this option. Thus, the requisite adversity of legal interests is lacking as to Count II.
Moreover, any determination made by the FAA as to the suitability of an exemption would likely have to be reviewed under the deferential standards set forth in the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. An attempt on the part of this Court to insert itself at this time into the exemption process, without the benefit of a prior ruling by the FAA on the matter, or any official record, would be both premature and completing devoid of foundational support. Accordingly, there can be no practical utility to a declaratory judgment on Count II and our withholding of judgment does not result in undue hardship to Eagle. We conclude that Eagle’s second cause of action is not ripe for this Court’s review. Accordingly, that claim will be dismissed without prejudice for lack of jurisdiction.
B. Leatherwood
The Federal Defendants raise a similar challenge with respect to Leather-wood’s standing on the grounds that the FAA has taken no adverse action against it. The FAA contends that the actual injuries suffered by Leatherwood-the suspension of its permits and non-review of its Bird Control Plan-were the resulta of decisions made by the DEP, not the FAA. Although the DEP based its decisions in part on the FAA’s Advisory Circular, the FAA points out that this document is meant to provide guidance in construing the statute and is not binding on the public. Thus, it is urged, the FAA never committed any act which adversely impacted Leatherwood’s interests.
Like the challenges raised to Eagle’s standing, we find this argument to be lacking in merit. As noted above, standing requirements are satisfied in the context of a declaratory judgment action “when ‘there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” The St. Thomas-St. John Hotel & Tourism Ass’n, Inc., 218 F.3d at 240 (quoting Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir.1990)). In light of the significant investment Leatherwood has made toward the completion of its landfill, in terms of both time and money, it can hardly be denied that there is a substantial controversy presented in this litigation. Further, it is clear that the FAA and Leatherwood have adverse legal interests as evidenced by the FAA’s interpretation of Section 503, which ultimately precludes Leatherwood from continuing with the development of its landfill. In addition, the utility of a declaratory judgment in this action is shown by the same concerns that we addressed in our discussion of Eagle’s standing to bring suit. Like Eagle, Leatherwood is faced with the dilemma of not knowing whether to pursue further litigation in relation to its state permits or whether to cut its losses in the face of a federal statute which may impose an insurmountable barrier to its landfill. The controversy, therefore, is of sufficient immediacy and reality to warrant resolution by this Court. We find that Leatherwood has sufficient standing to proceed with this action.
IV. ELEVENTH AMENDMENT IMMUNITY
We next turn to the Commonwealth Defendants’ assertion that Leather-wood’s claims against them are barred by the Eleventh Amendment to the United States Constitution, which states that:
The Judicial power of the United States shall not be construed to extend to suit in law or equity, commenced or prosecuted against one of the United states by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const., Ameno. XI. Although the Amendment on its face does not apply to suits brought against states by their own citizens, constitutional jurisprudence has long recognized that a state is immune from such actions. See e.g., Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145-46, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Hans v. Louisiana, 134 U.S. 1, 13-14, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Two well known exceptions apply where (1) Congress has enacted a statute abrogating that immunity pursuant to its authority to enforce Section 5 of the Fourteenth Amendment, or (2) a state has waived its immunity. See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). In addition, a person seeking purely prospective relief against state officials for ongoing violations of federal law may sue under the doctrine set forth in Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See Alden, 527 U.S. at 757.
Leatherwood does not dispute the fact that it is barred from pursuing its case against the DEP. See Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir.2002) (state agencies and departments are generally immune from suits by private parties in federal court when the state is the real party in interest). Accordingly, the Commonwealth’s motion for summary judgment is granted insofar as it relates to any claims against the DEP.
Leatherwood nevertheless maintains that it is permitted to pursue its action against Kelly Burch, the current Regional Director of the DEP under the doctrine of Ex Parte Young. At the same time, it has professed a willingness to dismiss this claim in exchange for assurances by the DEP that the Agency will abide by any decision rendered by this Court. Those assurances have since been provided in writing by counsel for the DEP and the Court has been advised that a stipulation for voluntary dismissal under Rule 41(a)(1)(h) will be forthcoming. However, in light of the Court’s ruling regarding the meaning of § 503(d)(2) of AIR-21, summary judgment is appropriate in favor of Mr. Burch because, as a matter of law, Leatherwood cannot obtain the declaration against Mr. Burch which it originally sought. Accordingly, the DEP’s motion for summary judgment will be granted in that respect as well.
V. SOVEREIGN IMMUNITY AND THE ADMINISTRATIVE PROCEDURES ACT
We next address the Federal Defendants’ claim that Leatherwood’s suit is barred by the doctrine of sovereign immunity. It is axiomatic that the United States may not be sued without its consent. Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed. 235 (1939). Moreover, because sovereign immunity is jurisdictional in nature, federal courts have no jurisdiction to entertain a claim against the United States or its agencies or officials unless there is a clear waiver of the immunity by the government. See FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983).
The Federal Defendants contend that the only conceivable waiver of sovereign immunity for purposes of this lawsuit is that which is contained in the Administrative Procedures Act, 5 U.S.C. § 702. It follows, the Federal Defendants argue, that Leatherwood’s claims must be reviewed in accordance with the procedural framework set forth in the APA. Consequently, the Federal Defendants maintain that our review is limited to the “administrative record” and that we should accord deference to the FAA’s interpretation of Section 503.
Although the Court agrees that the APA provides the necessary waiver of sovereign immunity, we do not agree that the case necessarily must proceed as an action under the APA. Section 702 states, in relevant part:
... An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party... Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
5 U.S.C.S § 702 (Lexis 1989).
The Third Circuit has held that Section 702 waives sovereign immunity in equitable actions seeking “nonstatutory” review of agency action under 28 U.S.C. § 1331. See Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). “Nonstatutory” review describes those situations where a party’s suit is not brought under a statute that explicitly provides for review of agency action. See id. at 718 n. 12. In Jaffee, the plaintiff was a former member of the United States Army who had been ordered to be present at the site of a nuclear weapons test in 1953. He sought, among other things, a court order directing the United States to issue a warning to all members of the affected class concerning the medical risks facing them as a result of their unprotected exposure to massive doses of radiation. The Third Circuit ruled that sovereign immunity would not bar that part of the lawsuit that sought nonmonetary relief against the United States in the form of the court-ordered warning. 592 F.2d at 718-19. Numerous other cases likewise support the proposition that Section 702’s waiver of sovereign immunity extends to nonstatuto-ry review cases that are not brought under the APA per se. See Chamber of Commerce of the United States v. Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996) (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.”); Clark v. Library of Congress, 750 F.2d 89, 102 (D.C.Cir.1984) (former employee of Library of Congress could bring non-monetary claims against Library even though Library was not “agency” under the APA); Dronenburg v. Zech, 741 F.2d 1388, 1390-91 (D.C.Cir.1984) (federal court was not barred by sovereign immunity from entertaining non-monetary claims challenging the legality and constitutionality of a military discharge); Johnsrud v. Carter, 620 F.2d 29, 30-32 (3d Cir.1980) (plaintiff not barred by sovereign immunity from seeking equitable relief in the form of a warning by the President to residents exposed to leakage of radioactive material from Three Mile Island); Cobell v. Babbitt, 30 F.Supp.2d 24, 31 (D.D.C.1998) (“The § 702 waiver of sovereign immunity in actions seeking relief other than money damages against the government also applies to claims brought outside the purview of the APA...”).
Based on this authority, the Court holds that sovereign immunity does not bar Leatherwood’s non-monetary claims against the FAA and its Administrator, Jane Garvey. We further conclude that the procedural mandates of the Administrative Procedures Act are not controlling here, as this case does not arise under the APA. With that understanding, we proceed to the merits of the underlying dispute.
VI. INTERPRETING SECTION 503(d) OF “AIR-21”
In this case we are asked to interpret the language of Section 503(d) of AIR-21, which was enacted on April 5, 2000 and is codified at 49 U.S.C. § 44718(d). That provision states:
(1) In general.-No person shall construct or establish a municipal waste solid waste landfill ... that receives pu-trescible waste ... within 6 miles of a public airport that has received grants under chapter 471 and is primarily served by general aviation aircraft and regularly scheduled flights of aircraft designed for 60 passengers or less unless the State aviation agency of the State in which the airport is located requests that the Administrator of the [FAA] exempt the landfill from the application of this subsection and the Administrator determines that such exemption would have no adverse impact on aviation safety.
(2) Limitation on applicability.-Paragraph (1) shall not apply in the State of Alaska and shall not apply to the construction, establishment, expansion, or modification of, or to any other activity undertaken with respect to, a municipal solid waste landfill if the construction or establishment of the landfill was commenced on or before the date of the enactment of this subsection.
49 U.S.C. § 44718(d) (emphasis supplied).
The heart and soul of this litigation concerns the parties’ varying interpretations of the phrase “if the construction or establishment of the landfill was commenced on or before [April 5, 2000].” Eagle and Leatherwood contend that Section 503(d)(2) is facially unambiguous and that we should apply the plain dictionary meaning to the terms “construction,” “establishment,” and “commence.” Accordingly, Plaintiffs posit that the term “establish” means “to bring into existence, to bring about.” Listing a litany of activities in which it has engaged over several years, Eagle contends that it “commenced establishment” of the Happy Landing Landfill-i.e., began the process of bringing the Landfill into existence-as early as 1990 and, in any event, prior to April 5, 2000. Leatherwood claims that it commenced the establishment of the Jefferson Landfill as early as 1989 when it began work necessary for the preparation of its application for a Solid Waste Permit and no later than July 31, 1991 when the formal application was submitted to the DEP. Both Plaintiffs contend that their respective landfills were formally “established” upon the issuance of a Solid Waste Permit by the DEP: May 12, 1995 for the Jefferson Landfill and February 9, 1996 for the Happy Landing Landfill.
With respect to the term “construction,” Plaintiffs advocate the dictionary definition “to make or form by combining or arranging parts or elements; BUILD.” Leath-erwood claims that it commenced construction of the Jefferson Landfill as early as 1990 when various extensive heavy construction activities were performed on its landfill site. It claims that construction was commenced no later than 1995 when, following the issuance of its Solid Waste Permit, it completed the installation of several ground monitoring wells, which are designated a “major construction activity” in its Solid Waste Permit. Eagle avers that it commenced construction by engaging in a host of activities between February 9, 1996 and April 5, 2000, including preliminary excavation work relative to its landfill access road and excavation relative to the installation of twelve groundwater monitoring wells, the latter being completed in 1996. In sum, under the Plaintiffs’ respective interpretations of the statute, both the Happy Landing Landfill and the Jefferson Landfill would be excepted from Section 503(d)(l)’s general prohibition because “construction” had been “commenced” and/or “establishment” had been “commenced” with respect to each landfill prior to April 5, 2000.
By contrast, the Intervenors and Federal Defendants argue that the phrase — “if the construction or establishment of the landfill was commenced” — is ambiguous, and they urge this Court therefore to rely on materials apart from the statutory language itself, particularly the FAA’s Advisory Circular. That document provides the following key definitions:
a.Construct a municipal solid waste landfill means excavate or grade land, or raise structures, to prepare a municipal solid waste landfill as permitted by the appropriate regulatory or permitting authority.
b. 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.
c. Existing municipal solid waste landfill (MSWLF) means a municipal solid waste landfill that received putrescible waste on or before April 5, 2000.
Applying these definitions to the case at hand, the FAA maintains that neither the Happy Landing Landfill nor the Jefferson Landfill is covered by the exception in Section 503(d)(2), to wit: neither landfill had “commenced their establishment” because neither was actually accepting waste as of April 5, 2000, and neither landfill had “commenced construction” because neither one had its permits in place and was actively excavating, grading land, or raising structures as of April 5, 2000. Thus, under the FAA’s interpretation of Section 503(d), both landfills are precluded from further development unless the state aviation committee requests, and the FAA Administrator grants, an exemption based on a finding that there would be no adverse impact on aviation safety. See 49 U.S.C. § 44718(d)(1).
All parties agree that our underlying endeavor in interpreting Section 503(d)(2) is to give effect to Congress’s intent. See Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir.2001). In ascertaining Congress’s intent, we must examine the language of the statute in question; if the language is plain and unambiguous, our inquiry is at an end. Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir.2002); Rosenberg, 274 F.3d at 141. In determining whether the statutory language is ambiguous, however, we are required to examine “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Valansi, 278 F.3d at 209 (quoting Marshak v. Treadwell, 240 F.3d 184, 192-93 (3d Cir.2001)); Rosenberg, 274 F.3d at 141. See also Becker v. Mack Trucks, Inc., 281 F.3d 372, 380 (3d Cir.2002) (In construing a statutory provision courts “must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”) (quoting United States Nat'l Bank of Oregon v. Independent Ins. Agents of Amer., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993)), pet. for cert. denied, - U.S. -, 123 S.Ct. 93, 154 L.Ed.2d 24.
The operative phrase with which we are concerned is § 503(d)(2)’s exception for landfills whose “construction or establishment ... was commenced on or before [April 5, 2000].” 49 U.S.C. § 44718(d)(2). We agree with the Plaintiffs that the word “commenced” appears to modify both “construction” and “establishment.” Thus we must focus our inquiry on what Congress meant by “commencing construction” or “commencing the establishment” of a landfill.
Unlike the Plaintiffs, we do not believe that the terms “commence construction” and “commence establishment” are clear and unambiguous considering the specific context in which they are used and the broader context of the statute as a whole. As this litigation has aptly illustrated, the process of developing a landfill is exceptionally complex and involves a host of regulatory issues at every level of government and at every phase of development. There are a multiplicity of steps, often times overlapping, which must be undertaken with regards to various environmental, geological, and hydrogeological concerns. Apart from satisfying federal and state regulatory requirements, a prospective landfill operator is required to obtain, at the local level, a community host agreement, a building permit, and a zoning permit, to name a few. Thus, in the specific context of a landfill, it is particularly difficult to ascertain when “construction” has begun and when “establishment” has been accomplished, let alone “commenced.”
In fact, the varying interpretations of Section 503(d) offered by the parties highlight the ambiguity inherent in the statute. Under Leatherwood’s interpretation of the term “establishment,” for example, the process of establishing a landfill would logically precede the process of constructing the landfill, since construction generally cannot begin until after a solid waste permit is obtained. Similarly, the types of activities which Eagle claims commenced the process of establishment (purchasing land, hiring consultants, etc.) logically precede the commencement of construction. In contrast, under the FAA’s and Interve-nors’ interpretation as set forth in the Advisory Circular, construction logically precedes the establishment of the landfill, since establishment would not occur until the point when the landfill actually receives waste. As is readily apparent, these two competing interpretations lead to different applications of the statute and potentially differing legal results.
To further highlight the statute’s inherent ambiguity, even the Plaintiffs are not completely uniform in their interpretations of § 503(d)(2)’s supposedly unambiguous language. While Leatherwood defines the “commencement of establishment” as basically those activity related to a good faith effort to obtain a Solid Waste Permit, Eagle has cited activities such as purchasing property on which to locate the landfill, litigating the conveyance of property, and hiring engineers to conduct preliminary viability assessment studies. Neither party has identified for this Court the precise moment in time when the “establishment” or “construction” of its landfill was actually “commenced.” Rather, both Plaintiffs seem to suggest that the “commencement of establishment” and/or the “commencement of construction” could occur at any point on a sliding temporal scale without being either willing or capable of identifying the specific point at which time it occurs, once again bespeaking the inherent ambiguity in the statute.
We are further convinced of Section 503(d)(2)’s ambiguity when we consider it in the broader context of Congress’s findings. In enacting § 503(d), Congress specifically found that:
(1) collisions between aircraft and birds have resulted in fatal accidents;
(2) bird strikes pose a special danger to smaller aircraft;
(3) landfills near airports pose a potential hazard to aircraft operating there because they attract birds;
(4) even if the landfill is not located in the approach path of the airport’s runway, it still poses a hazard because of the birds’ ability to fly away from the landfill and into the path of oncoming planes;
(5) while certain mileage limits have the potential to be arbitrary, keeping landfills at least 6 miles away from an airport, especially an airport served by small planes, is an appropriate minimum requirement for aviation safety;
(6)closure of existing landfills (due to concerns about aviation safety) should be avoided because of the likely disruption to those who use and depend on such landfills.
See Pub.L. 106-181, § 503(a), 114 Stat. 61, 133 (2000).
These findings underscore a concern with the danger posed by landfills located in the vicinity of airports, particularly those serving smaller planes, because of the potential for bird-aircraft collisions. At the same time, however, Finding No. 6 evidences Congress’s reluctance to inconvenience those who may use and depend on such landfills insofar as it recognizes that “closure of existing landfills ... should be avoided.. ” Pub.L. 106-181, § 503(a)(6), 114 Stat. 61, 133 (2000). The term “existing landfills” is not defined in the statute and, although we might presume that an “existing landfill” is coterminous in some fashion with one whose “construction” or “establishment” has commenced, this hardly advances the ball. Just as it is difficult to discern when “construction” is officially underway or when “establishment” has been accomplished, it is similarly difficult to know when a landfill formally comes into “existence.” Thus, the boundaries of Congress’s intended exception for “existing landfills” is not apparent from the language of the statute, and we are still left wondering when the “construction” or “establishment” of a landfill has been commenced. Those terms, we think, are undeniably unclear in their meaning.
Because we conclude that § 503(d)(2) is ambiguous, we may consider other sources apart from the statute itself, including the FAA’s Advisory Circular, in ascertaining its meaning. Not surprisingly, the parties disagree with respect to the level of deference, if any, that should be accorded the Advisory Circular. The FAA takes the position that the Advisory Circular should be given the highest level of deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, an agency’s interpretation of a statute should be upheld unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. Id. 467 U.S. at 843-44, 104 S.Ct. 2778. Plaintiff Leath-erwood disputes that Chevron deference applies and further contends that the Advisory Circular should be completely disregarded as unpersuasive under the factors set forth in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
We think it is clear that this is not a case where the agency’s interpretation is entitled to Chevron-type deference. We are not dealing here with the type of formal agency regulation or adjudication issued in the exercise of authority which Congress intended to have the force of law. See United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (“[A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”). In fact, by its own terms the Advisory Circular is clearly meant merely to provide guidance to various parties who may be affected by Section 503(d)’s provisions. See, e.g., Advisory Circular at ¶ 1 (“This advisory circular (AC) provides guidance on complying with new Federal statutory requirements regarding the construction or establishment of landfills near public airports.”) (emphasis supplied); id. at ¶ 2 (“The guidance contained in the AC is provided by the ... (FAA) for use by persons considering the construction or establishment of a municipal solid waste landfill (MSWLF) near a public airport. Guidance contained herein should be used to comply with recently enacted MSWLF site limitations contained in 49 U.S.C. § 44718(d) ... ”) (emphasis supplied). The Supreme Court has made clear that “interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citing cases). See also Madison v. Resources for Human Development, Inc., 233 F.3d 175, 186 (“We have made clear that agency interpretive guidelines ‘do not rise to the level of a regulation and do not have the effect of law.’ ”) (citing Brooks v. Village of Ridgefield Park, 185 F.3d 130, 135 (3d Cir.1999)). Thus, the Advisory Circular does not merit controlling weight.
Rather we think that the Advisory Circular is “entitled to respect” under the Supreme Court’s decision in Skidmore v. Swift, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but “only to the extent [it has] the ‘power to persuade.’” Madison, 233 F.3d at 186 (citing to Christensen, supra) (footnote omitted). In Skidmore, the Court explained:
[Rjulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.
323 U.S. at 140, 65 S.Ct. 161.
Applying the Skidmore standard, this Court accepts the interpretation proffered by the Advisory Circular because we ultimately find it to be a logical and persuasive interpretation of Congress’s true intent. We disagree, as an initial matter, with Leatherwood’s contention that the Advisory Circular has nothing to do with the FAA’s area of “core expertise.” The parties concede that the FAA is the agency charged with interpretation and enforcement of AIR-21. See 49 U.S.C. § 46301(a)(3)(C). Further, all parties agree that the FAA has expertise in the area of air traffic safety. While the area of landfill regulation is not uniquely within the expertise of the FAA, we cannot say that '§ 503’s interpretation and enforcement is wholly divorced from issues of air traffic safety. At the end of the day, the scope of the prohibition on landfills near airports directly implicates aviation safety concerns.
Moreover, the process by which the Advisory Circular was produced evidences a degree of thoughtfulness and thoroughness befitting of some deference. Following enactment of the statute, the FAA received various requests for information concerning the meaning and applicability of Section 503. The FAA determined that the statute was self-executing but it also decided that some guidance short of formal rule-making was necessary. The process of drafting the Advisory Circular occurred over a three month period from May 2000 to August 26, 2000 and involved many revisions. During the drafting process, informal discussions were held among various FAA personnel regarding all aspects of the Advisory Circular. A preliminary draft was circulated to the U.S. Environmental Protection Agency for its input. The final draft was circulated to personnel in the Office of Airports and the Office of Chief Counsel for their concurrence prior to its official adoption and promulgation.
Notably, during the process of draft revision, the FAA had the benefit of a letter, dated May 30, 2000, from the House Committee on Transportation and Infrastructure and its Subcommittee on Aviation, which purported to give some clarity to the new statutory provision. One of the signatories to the letter was Representative Bud Shuster, then Chairman of the House Committee and the primary proponent of Section 503. Thus, in drafting the Advisory Circular, the FAA had the benefit of input from the Congressional Committee and Subcommittee primarily responsible for § 503’s enactment.
Ultimately, in publishing the final version of the Advisory Circular, the FAA adopted the key definitions set forth above pertaining to “construction” and “establishment” of municipal solid waste landfills. The Advisory Circular explains that:
The limitations of § 44718(d), as amended, only apply to a new MSWLF [municipal solid waste landfill] (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). 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.
(Advisory Circular 150/5200-34 at ¶ 7, “Landfills Covered by the Statute”). The FAA contends that its Advisory Circular provides a reasonable and consistent interpretation of § 503(d). Given the variation among the states as to their myriad regulatory schemes pertaining to the development and operation of solid waste landfills, the FAA maintains it is reasonable that its definition for “construction of a municipal solid waste landfill” is tied to the landfill’s individual permit status as of the date of AIR-21’s enactment. Further, the FAA maintains it was reasonable to interpret activities such as the installation of ground monitoring wells, soil samplings and percolation tests as pre-construction activities, since those activities have more to do with assessing the viability of the landfill than actively constructing it.
We agree with the FAA that its Advisory Circular represents a reasonable and persuasive interpretation of Section 503(d) under the factors delineated in Skidmore. Apart from the factors previously discussed, we think that the Advisory Circular comports with the Congressional findings that accompany Section 503(d)(1) and (2). As we previously noted, Congress’s findings display its intent to enact a broad prohibition against new landfills (i.e., those commencing construction or establishment after April 5, 2000) within six miles of those public airports serving predominantly smaller