Last May, the Trump EPA issued a 90-day stay of two Obama-era landfill methane rules, namely the Standards of Performance for Municipal Solid Waste Landfills (NSPS Subpart XXX) and the Emissions Guidelines (EG).  EPA was responding to concerns by industry groups to reconsider portions of the rules.  After the stay was put into place, the Natural Resources Defense Council (NRDC) and others filed a petition in the D.C. Circuit Court of Appeals for review of the stay.  While that petition was pending, the stay expired on August 29, 2017 and the rules went into effect.

This past week, the NRDC voluntarily dismissed the lawsuit following surprising stipulations by EPA that the stay did not affect the May 30, 2017 deadline for states to submit implementation plans for existing landfills or EPA’s obligation to approve or disapprove those plans by September 31, 2017 or promulgate federal plans for states that did not timely submit state plans by November 30, 2017.  In short, EPA conceded that the deadlines have past and weren’t met.

The environmental groups are claiming victory with EPA’s concessions.  However, it remains to be seen when EPA will begin enforcing the rules.  EPA’s website still states that it intends to complete the reconsideration process and comments from waste industry representatives indicate that they still intend to pursue rule revisions.  With EPA not actively enforcing the rules, more litigation is likely to come.  Check back here at Environmental Law Next for additional updates as they develop.

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.

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.