EPA issues federal plan for long-delayed MSW landfill regulations

The U.S. EPA on May 21 published a final federal plan for existing municipal solid waste (MSW) landfills operated by any state, tribe or locale that has not submitted a satisfactory plan to reduce emissions of landfill gas in accordance with the agency’s MSW landfills emissions guidelines that were finalized in 2016.

The final rule published on May 21 relates to new source performance standards (NSPS) for MWS landfills finalized by the EPA in August 2016. Those long-stalled regulations, however, went unenforced for years and have been the subject of several lawsuits.

The EPA, under the Obama administration, on Aug. 29, 2016 finalized NSPS to reduce emissions of methane-rich landfill gas from new, modified and reconstructed 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.

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.

On May 23, 2017, the EPA, under the Trump administration, 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. That stay expired on Aug. 29, 2017.

California Attorney General Xavier Becerra and the California Air Resources Board led a coalition of eight attorneys general and the Pennsylvania Department of Environmental Protection in a lawsuit challenging EPA’s inaction. That lawsuit was filed in May 2018. 

In April 2019, the court ruled that given the role landfill emissions play in exacerbating climate change, the EPA’s failure to implement these regulations is unacceptable and a violation of the Clean Air Act. Under the ruling, the EPA was required to respond to all state plans already submitted within four months and to develop a federal plan within six months. That court ruling was later appealed.

The EPA published a notice in the Federal Register on Aug. 22, 2019,  proposing a federal plan regarding the regulations that would apply to MSW landfills in any state, tribe or locale that has failed to submit a plan or which a plan has not yet been approved. Upon approval of a state plan, the federal plan would no longer apply to MSW landfills in that state. Under court order, the EPA said it was required to promulgate the federal plan by Nov. 6.

Less than a week later, on Aug. 26, 2019, the EPA published a final rule in the Federal Register that aligned state plan timing requirements with regulations finalized in the Affordable Clean Energy rule. The rule indicated that state must submit state plans by Aug. 29, 2019. The final rule became effective Sept. 6, 2019.

A coalition of nine states and the Environmental Defense Fund filed a brief in the U.S. Court of Appeals for the D.C. Circuit in August 2020 urging the court to strike down the 2019 rule, referred to as the “Delay Rule.” A statement issued by the EDF on May 17, 2021, indicates the Biden administration asked the court to vacate the rule and send the matter back to EPA for further consideration. EDF and the nine states supported that request, and the court vacated the “Delay Rule” on April 5, 2021.

The final rule published by the Biden administrartion's EPA on May 21 impacts MSW landfills that commenced construction on or before July 17, 2014, and have not been modified or reconstructed since that time. The federal plan implements emissions guideline requirements for existing MSW landfills located in states and Indian country where state plans or tribal plans are not currently in effect because the state or local agency has failed to submit a plan, a submitted plan has not yet been approved. Upon approval of a state plan, the federal plan will no longer apply to MSW landfills in that state.

The rule implements the emission limits, compliance schedules, testing, monitoring, reporting and recordkeeping requirements that were established in the 2016 NSPS.

The EPA estimates that approximately 1,600 landfills in 41 states and the U.S. territories of Puerto Rico and the Virgin Islands will be covered by the federal plan. Once tribal entity, the Salt River Pima Maricopa Indian Community, would also be covered by the federal plan, according to the agency.

A full copy of the final rule and fact sheet are available on the EPA website.