EPA Keeps Landfill Methane Rules In Place... At Least for the Moment

Municipal solid waste (MSW) landfills receive non-hazardous waste from residential properties, commercial businesses, and institutions.  When MSW is placed in a lined landfill and covered, it decomposes and emits a gas into the air which contains carbon dioxide and methane.  According to its website, EPA considers methane to be “a potent greenhouse gas with a global warming potential more than 25 times that of carbon dioxide.”  In 2016, as part of President Obama’s Climate Action Plan, EPA took two actions under the federal Clean Air Act (CAA) aimed at reducing methane-rich gas emissions from MSW landfills.  First, EPA issued a final rule updating the 1996 New Source Performance Standards (NSPS) for methane gas emissions from new, modified and reconstructed MSW landfills (“Rule”).  Second, it issued new guidelines aimed at reducing emissions from existing MSW landfills (“Guidelines”).

The Rule and Guidelines require MSW landfills to measure and capture about 30 percent more landfill gas emissions, including methane, than required under the 1996 rule.  The Emissions Rule applies to MSW landfills constructed or modified after July 17, 2014 with a design capacity of 2.5 million metric tons and 2.5 million cubic meters of waste or more.  The Guidelines apply, through EPA-approved state plans or a federal plan, to MSW landfills constructed on or before July 17, 2014 with 2.5 million metric tons and 2.5 million cubic meters of waste or more (unless the landfill closed within 13 months of the Rule and Guidelines publication).  The Rule and Guidelines:

• Reduce the threshold upon which a landfill may stop collecting gas from 50 to 34 metric tons per year;
• Require landfills to capture gas by combusting it for energy generation, processing it for sale or re-use, or flaring it;
• Require landfills to monitor surface emissions of methane quarterly at all areas were MSW has been placed;
• Require landfills to have a gas collection system in place unless modeled emissions are between 34 and 50 metric tons per year;
• Landfills who model between 34 and 50 metric tons per year may use alternative site-specific methods (Tier 4 surface monitoring) to determining the need for a gas collection system;
• Require landfills to monitor temperature and pressure at wellheads on a monthly basis and take corrective action for elevated temperature or positive pressure; and
• Allow landfills to cap or remove landfill gas collection systems from all or part of a landfill after closure and 15 years (or sooner upon showing they are no longer needed) so long as the emissions are less than 34 metric tons per year on three successive tests.

In October of 2016, representatives of the solid waste industry, including the National Waste & Recycling Association (NWRA) and large MSW landfill companies, petitioned EPA to reconsider the Rule and Guidelines and stay their effectiveness until it could do so.  Among other things, the petitioners argued that the Rule and the Guidelines’ lower threshold would not provide benefits sufficient to justify the costs and burden.  They also argued that some of the compliance standards and timelines are impractical or unachievable. 

Shortly after President Trump took office, EPA Administrator Scott Pruitt issued a letter informing the NWRA and the waste industry of a 90-day moratorium on the Rule and Guidelines to allow reconsideration of six issues.  Those issues were:  (1) surface emission (Tier 4) monitoring; (2) annual liquids reporting; 3) corrective action timeline procedures; 4) overlapping applicability with other rules; 5) the definition of cover penetration; and 6) design plan approval requirements.  During the 90-day moratorium, EPA was sued by the Natural Resources Defense Council (NRDC) which argued, among other things, that the agency lack authority under the CAA to delay implementation of the Rule and Guidelines.  In September, 2017, the U.S. Court of Appeals for the D.C. Circuit denied NRDC’s request to vacate the stay, even though the stay had already expired on August 29, 2017. 

Since then, industry groups and environmentalists have been waiting for the results of EPA’s reconsideration.  In fact, when it issued the 90-day stay, EPA stated it would most likely issue a new proposed rule after reconsideration.  However, in late January of 2018, EPA announced it would not continue the stay.  EPA’s intent in doing so is not clear.  Since allowing the stay to expire, EPA stated it will continue to work with states on a path forward but will not demand state implementation plans (SIPs) or prioritize review of SIPS containing the Guidelines.  Furthermore, EPA is not actively imposing new compliance deadlines for the Rule and Guidelines. Therefore, state regulators and industry groups remain confused as to: (1) whether the 1996 or 2016 methane emissions rules and guidelines apply; (2) whetherthere will be another administrative stay; and (3) when and if EPA will publish a revision to the 2016 Rule and Guidelines.

Confused?  Welcome to the world of environmental regulation.      

81 Fed. Reg. 59332 (August 29, 2016)

81 Fed. Reg. 59276 (August 29, 2016)

Letter from Scott Pruitt to National Waste & Recycling Assoc. and Solid Waste Assoc. of North America (May 5, 2017)