EPA Takes Action on Recent Landfill Rules
Co-authored by Yolunda Righteous, Summer Law Clerk, Breazeale, Sachse & Wilson, L.L.P.
EPA has decided to reconsider certain portions of two recent rules relating to municipal solid waste landfills and has issued a stay of those rules for 90 days during the reconsideration process. In doing so, EPA seems to be signaling the beginning of a process to roll-back yet another climate-related rule.
By way of background, the President’s Climate Action Plan was issued in June, 2013. Pledges were made to reduce “carbon pollution,” prepare the United States for the impacts of climate change, and lead international efforts to combat global climate change. A major component of the Climate Action Plan was reducing carbon emissions from power plants, which led to the Clean Power Plan. Another main portion, though, was the intention to reduce methane emissions through identifying technologies and best management practices.
In March, 2014, the Strategy to Reduce Methane Emissions was issued. In it, specific steps to cut methane emissions from a number of key sources, including landfills, were announced. The EPA was to pursue rule-making to “reduce methane from new landfills and take public comment on whether to update standards for existing landfills.”
Following these directives, EPA proposed to update the Standards of Performance for Municipal Solid Waste Landfills by promulgating a new subpart, Subpart XXX, within Part 60.  Additionally, EPA proposed to update the Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills by promulgating a new subpart, Subpart Cf, within Part 60.  Ultimately, these rules were finalized. 
The New Source Performance Standards, Subpart XXX, were effective on October 28, 2016. They apply to municipal solid waste landfills that commence construction, reconstruction, or modification after July 17, 2014. Municipal solid waste landfills that commenced construction, reconstruction, or modification on or after May 30, 1991 and on or before July 17, 2014, will continue to remain subject to Subpart WWW. 
In general, Subpart XXX imposes regulation based on the size of the landfill and the emission rate of nonmethane organic compounds (NMOC). Ultimately, a gas collection and control system (GCCS) is to be used when the NMOC emission rate is exceeded.
The design capacity threshold is 2.5 million megagrams (Mg) by mass or 2.5 million cubic meters by volume. This threshold is the same in Subpart WWW. If the design capacity is less than the threshold, an initial design report must be submitted. The report must be submitted by November 28, 2016, and within 90 days of the date of construction, modification or reconstruction for all landfills that commenced construction, modification or reconstruction after August 29, 2016.
If the design capacity is greater than the threshold, the owner or operator must calculate a NMOC emission rate. In Subpart XXX, the threshold for action is 34 megagrams per year (Mg/yr). The NMOC emission rate in Subpart WWW is 50 Mg/yr.
If the NMOC emission rate is less than 34 Mg/yr, an annual NMOC emission rate report must be submitted and the NMOC emission rate recalculated every year until the rate is over 34 Mg/yr or the landfill is closed. In general, if the NMOC emission rate is greater than 34 Mg/yr, a gas collection and control system (GCCS) must be installed and started within 30 months of reaching or exceeding the NMOC emission threshold.
Once installed, there are certain requirements to remove a GCCS. The owner or operator must demonstrate that the landfill is closed, that the GCCS has operated for at least 15 years or the GCCS is unable to operate for 15 years because of declining gas flow, and that calculated NMOC emission rate is less than 34 Mg/yr for three successive test dates. The stringency of these requirements suggests that a GCCS will be in place for many years.
While Subpart XXX applies after July 17, 2014, the Emission Guidelines in Subpart Cf apply to municipal solid waste landfills that accepted waste after November 8, 1987 and initiated construction, reconstruction, or modification on or before July 17, 2014. The Emission Guidelines are to be implemented through revised state or federal solid waste plans. Essentially, they include the same new requirements as Subpart XXX. It should be noted that Subpart Cf does accelerate the rate at which a GCCS is required to be installed as the emission threshold triggering the installation and operation of a GCCS has been lowered from 50 Mg/yr of NMOC to 34 Mg/yr.
President Trump rescinded the Climate Action Plan and the Strategy to Reduce Methane Emissions.  EPA has taken steps to review the Clean Power Plan and the other main outgrowth of the Strategy to Reduce Methane Emissions, the 2016 Oil and Gas Methane Rule.
On May 5, 2017, EPA granted petitions for reconsideration of some of the portions of Subpart XXX and Subpart Cf, stating that some of the objections to these rules arose after the close of the comment period or were impractical to raise during the comment period. EPA agreed to reconsider the following portions of the rules: 1) Tier 4 surface emission 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.
Due to granting this reconsideration, EPA granted a stay of Subpart XXX and Subpart Cf from May 31, 2017 to August 29, 2017. Apparently, the rules were in effect from October 28, 2016 to May 31, 2017. However, during the period the rules were in effect, a new, re-constructed, or modified landfill would most likely only be subject to the requirement to report an initial design capacity. Of course, the stay and reconsideration do not affect the requirements in Subpart WWW.
EPA’s reconsideration is just beginning. EPA may seek to lengthen the period of the initial 90-day stay while the reconsideration is pending or if it proposes to revise portions of the rule to address the objections. Either way, when coupled with President Trump’s rescission of the Climate Action Plan and the Strategy to Reduce Methane Emissions and EPA’s formal review of the Clean Power Plan and the 2016 Oil and Gas Methane Rule, this most recent action strongly signals that regulations designed to address climate change face jeopardy in this new administration.
79 Fed. Reg. 41796 (July 17, 2014), supplemented at 80 Fed. Reg. 52162 (August 27, 2015).
 80 Fed. Reg. 52100 (August 27, 2015).
 81 Fed. Reg. 59332 (August 29, 2016) (New Source Performance Standards); 81 Fed. Reg. 59276 (August 29, 2016) (Emission Guidelines).
 40 CFR Part 60, Subpart WWW.
 Executive Order 13783, March 28, 2017.