In 2016, US EPA finalized two rules designed to reduce methane and non-methane organic compound emissions from landfills.  These rules were adopted as part of President Obama’s Climate Action Plan: Strategy to Reduce Methane Emissions.  US EPA issued final New Source Performance Standards (NSPS) to reduce emissions caused by landfill gas from new, modified and reconstructed municipal solid waste (MSW) landfills, as well as Final Updates to Emissions Guidelines designed to reduce emissions from existing MSW landfills, on August 29, 2016.  These combined rules updated the standards originally issued by US EPA in 1996.

On May 31, 2017, US EPA, under the Trump Administration, issued a stay of both rules until August 29, 2017 so that it could review an administrative petition filed on October 27, 2016 by the National Waste & Recycling Association, Solid Waste Association of North America, Republic Services, Inc., Waste Management Inc. and Waste Management Disposal Services of Pennsylvania, Inc.  The petition sought reconsideration of the combined rules and an administrative stay under CAA section 307(d)(7)(B).  Pursuant to this authority, US EPA stayed the effectiveness of these rules for 90 days so that it can address the objections raised in the administrative petition.

A recent decision by the US Court of Appeals for the District of Columbia, however, casts doubt on US EPA’s authority to stay the effectiveness of final rules under CAA section 307(d)(7)(B).  In Clean Air Council et al. v. Pruitt et al., case number 17-1145, the court granted Environmental Petitioners’ motion to vacate US EPA’s stay of final rules that regulate methane emissions from new natural gas and oil drilling sites.  US EPA, as a consequence of this decision, must enforce these rules as finalized until such time as they are formally amended or revoked.  Although US EPA’s stay of the final NSPS and emission guidelines remains in place, it has been challenged in Natural Resources Defense Council, et. al. v. Pruitt, et. al., case number 17-1157.  The case, which was filed on June 15, 2017, is still pending before the in the United States Court of Appeals for the District of Columbia.

The stated purpose of the NSPS and emission guidelines is to increase reductions of landfill gas emissions, including methane emissions, by lowering the emissions thresholds at which a landfill must install emission controls.  By doing so, US EPA estimated at that time that the combined rules would reduce 334,000 metric tons of methane, which is the equivalent of reducing 8.2 million metric tons of carbon dioxide in 2025.  The combined rules would also directly cut an estimated 303,000 metric tons of carbon dioxide.

As justification for the stay, US EPA took issue with the fact that the combined rules, as proposed, allowed existing sources to use Tier 4 surface emission monitoring as an optional method for determining when the landfill must install and operate gas collection control systems. Generally, sources that demonstrate surface emissions below 500 parts per million do not have to install a gas collection control system.  The final rules, however, imposed restrictions on the use of the Tier 4, thereby reducing the intended flexibility of the combined rules.  According to US EPA, these restrictions were not subject to public comment.  Therefore, US EPA believed that it was necessary to stay the combined rules in their entirety since the Tier 4 provisions found in both rules “are integral to how the rules function as a whole.”

Should the stay remain in place, US EPA announced in a letter dated May 5, 2017 that it would convene a proceeding to reconsider the following aspects of the combined 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.  US EPA also noted that it “expects to prepare a notice of proposed rulemaking that will provide an opportunity for notice and comment on issues raised in the petition . . . as well as any other matter we believe will benefit from additional comment.”

Squire Patton Boggs will continue to monitor the status of the combined rules and the outcome of the pending challenge to US EPA’s stay before the D.C. Circuit Court of Appeals.