States to sue EPA over failure to enforce landfill gas rules

A coalition led by California Attorney General Xavier Becerra and the California Air Resources board has announced plans to sue the U.S. EPA over its failure to enforce existing landfill methane regulations.

The coalition announced its plans on March 23 when it submitted a 60-day notice of intent to sue the EPA over the matter. In addition to Becerra and CARB, the coalition includes the attorney generals of Illinois, Maryland, New Mexico, Oregon, Rhode Island and Vermont, along with the Pennsylvania Department of Environmental Protection.

On Aug. 29, 2016, the EPA finalized new source performance standards (NSPS) to reduce emissions of methane-rich landfill gas from new, modified and reconstructed municipal solid waste (MSW) landfills. In a separate action, the agency also issued revised guidelines for reducing emissions from existing MSW landfills. The new regulations updated standards and guidelines put into place in 1996. 

At the time the regulations were implemented, the EPA said the two rules will reduce methane emissions by an estimated 334,000 metric tons, with is the equivalent of reducing 8.2 million metric tons of carbon dioxide in 2025. The rules also cut carbon dioxide emissions directly, yielding an estimated 303,000 metric tons of additional carbon dioxide regulations, and reduce more than 2,000 metric tons of emissions from non-methane organic compounds (NMOC).

Both rules consider a well-designed and well-operated landfill gas collection-and-control system as the best system of emission reduction for controlling landfill gas. In addition, both actions require affected landfills to install and operate a gas collection control system within 30 months after landfill gas emissions reach 34 metric tons of NMOC or more per year. The previous threshold was 50 metric tons.

The rules state landfill owners and operators may control gas through combustion for energy generation, or by using a treatment system that processes gas for sale or beneficial use. Gas can also be flared.

An EPA fact sheet released in 2016 notes both the NSPS and emissions guidelines include clarifications on the use of treated landfill gas, noting that the final rule clearly states treated landfill gas may be used not only as a fuel for stationary engines, but also for other beneficial purposes. This includes use as a vehicle fuel, production of pipeline-quality gas, or as a raw material for chemical manufacturing.

On May 23, 2017, the EPA announced a 90-day administrative stay of the two rules to allow the agency to reconsider certain aspects of these regulations. Specifically, the agency said it would reconsider six topics, including tier four surface emission monitoring, annual liquids reporting, corrective action timeline procedures, overlapping applicability with other rules, the definition of cover penetration and design plan approval.

At that time, the agency said it planned to issues a new notice of proposed rulemaking that would provide an opportunity for public comments on the six topics it was reconsidering.

In a statement issued announcing the 90-day stay, the EPA explained that the action was consistent with President Trump’s Energy Independence Executive Order, and that the agency will “continue to review these actions to ensure that they protect the environment and enable a growing economy.” 

Information currently posted to EPA’s website indicates the 90-day stay expired on Aug. 29, 2017. Therefore, the rules are currently in effect. “The EPA still intends to complete the reconsideration process granted by the administrator,” the agency said on its website. “EPA will continue to work with states and stakeholders as we develop a path forward on these separate but related actions.” The reconsideration is currently scheduled by be complete by spring 2020. 

A statement released by Becerra announcing plans to sue the EPA over its failure to enforce the landfill methane rules states calls the EPA’s actions “a blatant violation of the Clean Air Act.” The statement stresses that that EPA has “no legal basis for delaying implementation and enforcement of the regulation.”

“Climate change is the most important global environmental issue of our time. We must act to address it now for the sake of our children,” Becerra said. “EPA Administrator Pruitt has a legal responsibility to enforce this critical landfill methane regulation. If he fails to do his job, our coalition is ready to go to court.”

“Landfills that leak gas stink. They also contribute to our air quality problems and emit potent climate-changing gases," said Richard Corey, executive officer of CARB. “The EPA has laws on the books to control this problem but it’s refusing to follow its own rules. We deserve better and we’re putting them on notice today to do better."