The Delay Is Finally Over: EPA Issues Final Federal Plan Pursuant to Landfill Emission Guidelines Rule

by Sam Ballard

Ladies and Gentlemen, the wait is finally over! The moment you’ve all been waiting for: the implementation of EPA’s final federal plan pursuant to the 2016 Landfill Emission Guidelines (“EG”) Rule.

Since the agency first announced the EG Rule in 2016, it repeatedly delayed implementing a federal plan, and those delays were the subject of significant and protracted litigation. But with the change in the federal administration, EPA finally decided it was time to issue the final federal plan (the “Plan”) on May 21, 2021. Now, the question is what impacts the Plan will have on the solid waste sector after it goes into effect on June 21, 2021.

Generally, the EG Rule is aimed at regulating air emissions from existing municipal solid waste (“MSW”) landfills. The Plan applies to any MSW landfills that have accepted waste since November 8, 1987, and that commenced construction on or before July 17, 2014, and have not been modified or reconstructed since July 17, 2014. EPA estimates the Plan will cover about 1,600 landfills across the country. These landfills are located in 41 states and the U.S. territories of Puerto Rico and the Virgin Islands.

In addition, the Plan applies to landfills in states where an EPA-approved state plan is not in effect, including Texas. MSW landfill owners and operators subject to the Plan will have 30 months to install gas collection and control systems if the landfill meets the new landfill gas emissions threshold of 34 metric tons of nonmethane organic compounds or more per year. The Plan also implements the compliance schedules, testing, monitoring, reporting and recordkeeping requirements that were established in the 2016 Emission Guidelines for MSW landfills. The newly updated federal standards align with the 2016 New Source Performance Standards (“NSPS”) and 2020 National Emission Standards for Hazardous Air Pollutants (“NESHAP”) for MSW landfills.

EPA originally required states to submit their own plans in accordance with the EG Rule for review and approval by May 30, 2017, but the agency pushed that deadline out to August 29, 2019. On February 29, 2020, EPA found that 42 states, including Texas, had failed to submit a state plan. This finding did not establish sanctions for the states that failed to submit state plans or set deadlines for imposing sanctions. EPA only received plans from six states by the deadline: Arizona, California, Delaware, New Mexico, West Virginia, and Oregon.

In May 2019, a California federal court ordered EPA to promulgate a federal plan by November 6, 2019 for the states that failed to submit their own plans by the deadline. However, EPA issued a rule in August 2019 pushing its federal plan deadline out to August 30, 2021 and requested that the California federal court allow it to do so. A number of groups, including eight states (California, Pennsylvania, Illinois, Maryland, New Mexico, Oregon, Rhode Island, and Vermont) and the Environmental Defense Fund (“EDF”), opposed EPA’s delay in the courtroom, arguing that EPA’s delay would effectively circumvent the prior federal order. The California federal court sided with the opponents in November 2019 and denied EPA’s request to delay the deadline any further, ruling that the agency was attempting to “sidestep” its prior order.

EPA subsequently appealed the California federal court’s ruling in the U.S. Court of Appeals for the D.C. Circuit, arguing that it had the discretion to delay the deadline for implementation of the Plan. However, a coalition of nine states (including the eight states previously identified and New Jersey) and the EDF filed a brief in August 2020 in the D.C. Circuit Court, arguing that EPA deployed a series of tactics to delay implementing the standards, without ever providing a valid reason for doing so. The opponents requested that the court both vacate the delay and require EPA to immediately implement the Plan, asserting that any further delays would have adverse environmental and public health effects.

Following the change in the federal administration, on March 4, 2021 EPA requested that the D.C. Circuit Court vacate the agency’s prior rule, which had extended the deadline for implementation of the Plan. EPA made the request to vacate pursuant to President Biden’s January 20, 2021 Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, which prompted EPA to move forward with pending environmental projects. The D.C. Circuit Court granted EPA’s request to vacate on April 5, 2021, effectively ending the EG delay saga.

In the meantime, in the spring of 2020, TCEQ announced plans of its own to issue a future rulemaking to revise 30 Texas Administrative Code, Chapter 113, Subchapter D to incorporate a new state plan in compliance with the Federal Clean Air Act and 2016 EG Rule. The future rulemaking would revise Subchapter D to remove outdated references to prior Emission Guidelines and add references to the provisions of the 2016 Emission Guidelines under 40 C.F.R. Part 60. TCEQ also announced plans for a separate, concurrent rulemaking to replace the existing standard air permit for MSW landfills with a non-rule standard permit that would be issued to reflect the changes in the federal regulations. TCEQ may issue these rulemakings following the recent issuance of the Plan.

So whether it is a state EG Plan or the federal Plan, this new rule will affect most existing landfills and, as such, it is essential that MSW landfill owner/operators consult with their engineering and compliance teams about the potential impacts.

But wait, Ladies and Gentlemen, there is more! On March 26, 2020, EPA issued a final rule update for the residual risk and technology review (“RTR”) to the NESHAP Subpart AAAA for MSW landfills. The rule update was promulgated pursuant to section 112(d) of the Clean Air Act and will become fully effective on September 28, 2021. These updated NESHAP AAAA rules have additional and new requirements for all MSW landfills that are a major source for Hazardous Air Pollutants (“HAPs”) and/or have 50 megagrams per year or more of non-methane organic compounds (“NMOCs”). Some of the new requirements will affect surface emissions monitoring, gas system monitoring, and exceedance corrective actions. As this rule is also fast approaching, developing an implementation strategy is recommended.

Sam Ballard is an Associate in the Firm’s Air and Waste Practice Group. Sam would like to thank Matt Stutz, engineer at Weaver Consultants Group, for his contributions to this article. You can reach Sam at 512.322.5825 or You can reach Matt at 817.735.9770 or

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