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 on Aug. 12 urging the court to strike down a rule issued by the U.S. EPA last year that has stalled implementation of landfill emissions regulations.

The delays in implementing the regulations have been ongoing for years. The EPA on Aug. 29, 2016 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.

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.

The brief filed by the EDF and the states of California, Illinois, Maryland, New Mexico, New Jersey, Oregon, Pennsylvania, Rhode Island and Vermont explains that the Trump administration’s EPA, however, has been working to delay implementation of those standards “without ever providing a valid reason for doing so.”

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. 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 the lawsuit challenging EPA’s inaction. The 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 is required to respond to all state plans already submitted within four months and to develop a federal plan within six months. According to the EDF, that lawsuit is currently on appeal in the Ninth Circuit.

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 will 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, the EPA published a final rule in the Federal Register that aligns state plan timing requirements with regulations finalized in the Affordable Clean Energy rule. The rule indicates state must submit state plans by Aug. 29, 2019. The final rule became effective Sept. 6, 2019. The brief filed by the NDF and nine states refers to this rule as the “Delay Rule.”

“Ultimately, EPA decided to simply ignore the deadlines, broadcasting to states and the regulated industry that there was no need to comply, and shrugging off its duty to act by telling this Court that the ‘deadlines have come and gone’ without any effort by the agency to meet them,” said the nine states and EDF in the brief filed Aug. 12. “After many of the same petitioners here sued to enforce those duties in district court, that court required EPA to fulfill its mandatory duty to implement the standards no later than November 6, 2019. EPA instead issued this final rule, retroactively delaying its long-past deadlines by several years.”

“This latest step in EPA’s campaign to avoid implementing its own emission reduction standards is unlawful,” they continued. “EPA has ignored the purpose of the Clean Air Act, provided no valid justification for delaying these crucial protections, and put forward rationales that run directly contrary to the facts. The agency has also brushed aside evidence undermining its rationales and completely ignored the Delay Rule’s substantial adverse impacts, including environmental and public health impacts. This Court should vacate the Delay Rule and require EPA to implement these long overdue protections.”

The brief argues that in delaying the landfill gas regulations the “EPA has ignored the purpose of the Clean Air Act, provided no valid justification for delaying these crucial protections, and put forward rationales that run directly contrary to the facts. The agency has also brushed aside evidence undermining its rationales and completely ignored the Delay Rule’s substantial adverse impacts, including environmental and public health impacts. This Court should vacate the Delay Rule and require EPA to implement these long-overdue protections.”

A full copy of the Aug. 12 brief can be downloaded from the EDF website.