An Illinois appellate court recently ruled that the 15 year post-closure monitoring requirement for sanitary landfills under the Illinois Environmental Protection Act sets the minimum, not maximum, period, and that that the operator will be required to continue post-closure monitoring if the threat of future violations of the Act is present.

D&L Landfill, Inc., the petitioner in the case, operated a landfill in Greenville, Illinois until it ceased accepting waste in 1996.  The Illinois Environmental Protection Agency approved its final post-closure care plan the following year.  Fifteen years after the beginning of the “15 year minimum post-closure care period” identified in the plan, D&L filed an application to end all post-closure care.  The application was originally denied because affirmative remedial action was necessary at the site, including repairs to the final cover.  After that was completed, however, the Agency continued to deny post-closure certification on the grounds that groundwater contamination, although trending downward, still exceeded applicable standards.  It relied on 35 Ill. Adm. Code 807.524(c), which requires that the Agency only certify post-closure care has ended if it determines “(1) That the post-closure care plan has been completed; and, (2) That the site will not cause future violations of the Act or this Part.”  As a result, the Agency told D&L, it had to keep monitoring groundwater until the Agency was satisfied there was no longer a threat of exceedances.

D&L argued that the Agency’s position was impermissible under Section 22.17(a) of the Act, which provides that the owner or operator of a sanitary landfill must monitor gas, water and settling at a closed landfill for 15 years after the site is completed “or such longer period as may be required by Board or federal regulation.” 415 ILCS 5/22.17(a).  D&L asked the court to find that absent a regulation that explicitly extending the 15 year monitoring period, its obligations terminated as a matter of law after it completed its 15 year post-closure care plan.  The Court disagreed, finding instead that Section 22.17(a) should be construed liberally to effectuate the Act’s purposes, and the Agency’s interpretation is superior for the purpose of ensuring adequate responses to unforeseen environmental issues that arise during the post-closure period.

The decision could mean much greater uncertainty for landfill owners and operators. Compliance for 15 years with an approved post-closure care plan does not guarantee that their obligations to a site that has long since ceased generating revenue will end.  Moreover, the opinion suggests that the Agency can place the burden on the landfill to prove that no violations will occur in the future before it can obtain post-closure certification.  Accordingly, landfill owners and operators that had been counting on post-closure care costs being fixed at the cost of compliance with their approved plan might be in for an unpleasant surprise.

We will continue to monitor how this may affect landfill owners and operators – check back here for any new developments.

By rule published in the Federal Register today, EPA is staying the New Source Performance Standards (NSPS) and Emissions Guidelines (EG) final rules for municipal solid waste landfills, in their entirety, for 90 days pending reconsideration.  The rules are found at 40 CFR Part 60, Subparts Cf and XXX and had been published on August 19, 2016.  The 90-day period is effective from today, May 31, through August 29, 2017.

In a letter dated May 5, 2017, EPA announced that it would be reconsidering the following topics: (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.

This stay has no effect on the existing rules at 40 CFR Part 60, Subparts WWW and Cc, which municipal solid waste landfills must continue to comply with.

Mr. Trump made cutting regulations a central promise of his campaign. At one point he suggested 70% of federal regulations could be eliminated.  Although his staff quickly walked that number back, there is little doubt that at least a few EPA regulations will be among those the administration will target.

An agenda that involves a thoughtful attempt to revise and simplify the environmental title of the Code of Federal Regulations would be a welcome development and might receive broad support.  Observers from most of the political spectrum will concede there are at least some incidents of over-regulation and counterproductive micro-management for which the EPA is responsible.  According to the Heritage Foundation, the annual cost of EPA regulations enacted during the Obama Administration constitute nearly half of all new annual federal regulatory costs imposed during that period.  Examples of over regulation abound in all spheres of environmental law, where it now takes specialists to understand each subdivision of the regulations.  For those who want examples, see the “verified recycler” exemption at 40 C.F.R. 261.4(a)(24), any portion of the land disposal restrictions at 40 C.F.R. Part 268, or the newly issued New Source Performance Standards and Emission Guidelines for Municipal Solid Waste landfills.

It is too early to know whether Mr. Trump will strike the right balance.  His campaign was short on the relevant details.  There were a few areas, however, where he got specific. Some of President Obama’s signature environmental regulations are likely to be completely abandoned.  One way or another, the Clean Power Plan is dead.  At the moment the statutory challenge to it is awaiting adjudication by the full panel of the U.S. Court of Appeals for the D.C. Circuit.  But if his harsh criticism of the rule in the past left any doubt, Mr. Trump recently announced he would appoint an unabashed climate skeptic to lead his EPA transition team.

Similarly, it is likely only a question of how, rather than whether, the United States will reverse course on the Paris Agreement on climate change.  Among Mr. Trump’s options are to formally exit the deal through the process it provides, but that would mean America would still be bound by it until 2020.  He may choose instead to simply ignore the agreement by failing to implement the Clean Power Plan or any other policy that would cause the country to meet its voluntary goals; there is no punishment mechanism in the agreement for those that fall short.

The Clean Water Rule, which was supposed to resolve the issue of jurisdictional limits of the Clean Water Act, will also not survive, at least in its current form.  Before the election it was already being challenged by opponents, on whose behalf 88 Republican members of Congress filed an amicus brief arguing that the agency was expanding its jurisdiction beyond what was intended by the statute and encroaching on the States’ authorities.  And Mr. Trump has excoriated the rule on the campaign trail and said he would eliminate it.  He will now be able to do that.  Look for Mr. Trump to instruct the Justice Department to stop defending the rule in court.

The circumstances Mr. Trump faces with respect to the Clean Water Rule, however, highlight the flaw of his over-simplistic attacks on the quantity of EPA regulations.  Many regulations do not actually impose costs and burdens themselves.  To the contrary, they give clarity and predictability to otherwise ambiguous statutes.  The Clean Water Rule was intended to establish when Clean Water Act permits are required.  Without it, costly and time consuming case-by-case evaluations will be necessary.  If Mr. Trump is truly concerned with cutting bureaucratic red tape he will act swiftly to replace, rather than eliminate, the Clean Water Rule.

Mr. Trump has talked less about President Obama’s GHG emissions standards for light-duty vehicles, which were designed to double the fuel efficiency of new cars and trucks between 2011 and 2025.  A mid-term review of these regulations was already scheduled, and the auto industry sees an opportunity.  This week, the Alliance of Automobile Manufacturers wrote to President-elect Trump asking him to reduce the targets.

There are probably not any monumental changes coming to the regulations that govern the waste and recycling industry.  Several likely policies could provide an indirect boon to business, however.  Corporate tax cuts, a one-time allowance for repatriation of foreign domiciled profits, or a big infrastructure bill would each likely result in higher volumes of waste for disposal.  Gas to energy businesses may not fare as well as focus shifts back to fossil fuels though.

As we learn more about Mr. Trump’s energy and environmental plans, we will keep you updated here.

A group of waste industry trade associations and waste management and recycling companies is challenging the EPA’s recently finalized Clean Air Act rule that revises Emission Guidelines for existing municipal solid waste (MSW) landfills. The National Waste & Recycling Association is among those that petitioned the United States Court of Appeals for the District of Columbia to review the agency’s action, which would set a lower emission threshold at which owners and operations of MSW landfills must install a landfill gas collection and control system (GCCS).  The petition does not cover the separate, contemporaneously published rule that revised the New Source Performance Standards (NSPS) for new and modified MSW landfills, which became effective on October 28, 2016.

The substantive basis for the challenge to the rule is not laid out in the initial petition.  Some of the arguments petitioners are likely to make, however, can be anticipated from comments submitted to EPA during the rulemaking process.   The National Waste & Recycling Association and Solid Waste Management of North America, another petitioner, criticized a draft of the rule for proposing a GCCS installation trigger of emissions of 34 Megagrams per year (Mg/yr) of non-methane organic compounds (NMOC), rather than the previously contemplated 40 Mg/yr.  They claimed that EPA’s own calculations show that it will achieve no overall reduction in emissions of NMOC and only a marginal drop for methane.  Petitioners are also likely to take issue with EPA’s decision to maintain an operational standard for wellhead temperature, which it had considered removing in a prior proposed rule (80 FR 52100).

We will be tracking this litigation as it develops and providing updates on this blog.

If the United States is going to meet its greenhouse gas emission reduction commitments under the Paris Agreement, it is going to have to significantly overhaul its waste management practices. At least that is the conclusion of Shift Energy Holdings CTO Adrian Tylim.  Writing in Waste Dive, he notes that landfills account for 20% of the country’s emissions of methane, a gas with a global warming potential 25 times higher than carbon dioxide.   According to Mr. Tylim, Americans must increase recycling rates, which have fallen in recent years, and should borrow strategies from the European Union and Japan for putting municipal solid waste to better use, such as generating energy.

Beginning on October 28, 2016, new and modified municipal solid waste (MSW) landfills are now subject to updated New Source Performance Standards under the Clean Air Act 81 FR 59331. The U.S. EPA has also issued new rules for existing MSW landfills, but they must be implemented through state or federal implementation plans before they become operative.

The rules are in part a reaction to President Obama’s Climate Action Plan, which instructed the U.S. EPA and other federal agencies to assess ways of reducing methane emissions. The most significant new element of both sets of regulations is a reduction in the threshold at which the requirement to install a regulatory landfill gas collection and control system (GCCS) is triggered. U.S. EPA is, however, also providing owners and operators with additional flexibility in this area. Under the new Tier 4 option they can put off installing a regulatory GCCS by demonstrating through surface emission monitoring methane emissions below 500 ppm.

There is a lot more in the new rules that the industry must be aware of, including mandatory electronic reporting requirements. For more details, see our Client Alert on the topic.