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Waste Management’s Petition for Reconsideration of 2013 

Revisions to Greenhouse Gas Reporting Rule and 

Final Confidentiality Determinations for New or Substantially Revised Data Elements 

Docket I.D. EPA-HQ-OAR-2012-0934 

I. Introduction

 Pursuant to Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B) 

(“CAA” or “Act”), Waste Management, Inc. and its operating subsidiaries (hereinafter, 

collectively referred to as “WM”) request that the Environmental Protection Agency (“EPA” or 

“Agency”) reconsider its final rule, 2013 Revisions to Greenhouse Gas Reporting Rule and Final 

Confidentiality Determinations for New or Substantially Revised Data Elements, published at 78 

Fed. Reg. 71904-71981 (Nov. 29, 2013) (the “Final Rule”). As set forth herein, WM seeks 

reconsideration of a single aspect of Subpart HH of the Final Rule that was impracticable to 

comment upon previously, arose after the period for public comment (but within the time 

specified for judicial review), and is of central relevance to the outcome of the rule. 

 As an initial matter, WM commends EPA for many of its technical corrections to Subpart 

HH of the Final Rule, governing municipal solid waste (“MSW”) landfills. In particular, WM 

supports EPA’s conclusion in the proposal for the Final Rule that a single default value of 10% is 

not an appropriate basis on which to quantify the effect of methane oxidation on emissions. See

2013 Revisions to Greenhouse Gas Reporting Rule and Final Confidentiality Determinations for 

New or Substantially Revised Data Elements; Proposed Rule, 78 Fed. Reg. 19802-19877, 19825 

(April 2, 2013). Further, WM supports EPA’s conclusion that the oxidation fraction is primarily 

dependent on methane flux, and the adoption of a “binned approach” to methane oxidation that 

will allow landfills to use oxidation fractions that are based on site-specific methane flux rates. 

Id. As WM emphasized in its comments on the proposed Final Rule, WM is pleased that EPA 
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reviewed and relied on sound, peer-reviewed scientific studies showing that a majority of MSW 

landfills oxidize methane at fractions much greater than the default oxidation value of 10%. The 

result of the Agency’s thorough review of existing data, the binned approach to methane 

oxidation fractions, will ensure that greenhouse gas (“GHG”) emissions from MSW landfills are 

reported more accurately because the Final Rule takes into account site-specific factors that 

influence a MSW landfill’s methane oxidation rate. 

Though WM supports the binned approach for determining methane oxidation, WM 

submits this Petition for Reconsideration because the Final Rule arbitrarily limits the availability 

of the binned approach to those landfills that have at least 24 inches of soil cover over a majority 

of the landfill area containing waste. See 78 Fed. Reg. at 71925. EPA did not identify or solicit 

comment on the 24-inch soil cover requirement in the proposal for the Final Rule; had it done so, 

WM would have established, as it does in this Reconsideration Request, that the 24-inch soil 

cover requirement is not supported by the scientific literature and will result in inaccurate 

reporting of MSW landfill GHG emissions. Specifically, the Final Rule’s limitation of the 

binned approach to landfills meeting the 24-inch soil cover requirement will erroneously limit 

many MSW landfills to using the 10% default oxidation factor, instead of the binned approach, 

even though actual methane oxidation fractions will be greater than 10%. Accordingly, WM 

requests that EPA convene a reconsideration proceeding to fully evaluate and correct this error. 

II. Background to WM

 WM is the leading provider of comprehensive waste and environmental services in North 

America, and the largest recycler in North America. In addition, WM is a leading producer of 

renewable, waste-based energy, producing enough energy to power roughly 1.2 million homes 

each year. WM expects to nearly double its energy output by 2020, producing enough energy to 
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power more than 2 million homes by that date. Headquartered in Houston, TX, WM operates in 

48 U.S. states and in most Canadian provinces. WM’s network of operations includes 390 

collection operations, 310 waste transfer stations, 128 recycling facilities for differing 

commodities, 36 organic composting and processing facilities, 241 reporting MSW landfills, 137 

landfill gas-to-energy projects, 17 waste-to-energy (“WTE”) plants, and five independent power 

production plants.1 

WM subsidiaries operate a number of landfills that contain less than 24 inches of cover 

over the majority of their area containing waste and, on that basis, will not be able to use the 

25% or 35% oxidation values in the binned approach. Instead, under the Final Rule, these 

entities will be required to use the default oxidation value of 10%, which EPA has recognized is 

biased low. Thus, these entities are directly affected and harmed by the 24-inch soil cover 

requirement.

WM’s interest in the Final Rule derives from WM’s operation and maintenance of active 

and closed MSW landfills and WTE plants, which subject WM to the Final Rule’s mandatory 

GHG emission reporting requirements. Given the size, number, and diversity of WM’s facilities, 

reporting WM’s GHG emissions is more time-consuming and complicated than for many other 

entities subject to the Final Rule. WM has gained considerable experience calculating and 

reporting GHG emissions, and has been eager to work cooperatively with EPA in sharing 

information and refining GHG emission estimation methodologies where appropriate. WM has 

worked closely with EPA on the revisions to the GHG Reporting Rule, and believes that the 

binned approach for determining methane oxidation is correct. However, under the Final Rule, 

 

1

 These numbers are based on 2013 figures. WM’s statements throughout this Petition for 

Reconsideration concerning WM’s GHG reporting landfills refer to the 240 landfills that WM 

owned prior to the third quarter of 2013, at which time WM acquired a 241st MSW landfill 

required to report GHG emissions. 
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WM could be precluded from using the binned approach to methane oxidation at two-thirds of 

the landfills within its network. This is because most active landfills with predominantly 

intermediate cover will not meet the 24-inch soil cover requirement across the majority of 

landfill areas containing waste, even though they are fully compliant with federal and state 

requirements.2 

As explained in greater detail below, imposition of the 24-inch soil cover requirement as 

an independent factor for determining methane oxidation is not supported by the peer-reviewed 

scientific literature that provided the basis for the binned approach. Neither WM nor any other 

affected entity had an opportunity to provide comments on the Final Rule’s soil cover 

requirement for MSW landfills seeking to use the binned approach to methane oxidation 

fractions, as this requirement is entirely new in the Final Rule. Thus, WM now seeks 

reconsideration of the Final Rule so that EPA may reevaluate and correct this issue. 

 WM submitted comments to EPA on the proposed Final Rule. A copy of WM’s 

comments dated May 16, 2013, Docket I.D. No. EPA-HQ-OAR-2012-0934-0041, is attached 

hereto at Appendix “A” and shall be referred to herein as the WM Proposal Comments. 

III. Grounds for Reconsideration

Pursuant to Section 307(d)(7)(B) of the CAA, EPA “shall convene a proceeding for 

reconsideration of [a] rule and provide the same procedural rights as would have been afforded 

had this information been available at the time the rule was proposed” so long as the party 

seeking reconsideration can demonstrate: (1) “that it was impracticable to raise such objection” 

during the public comment period or that “the grounds for such objection arose after the period 

 

2

 WM’s two-thirds estimate is based on federal and state cover depth requirements at both active 

and closed WM MSW landfill sites. Although not required, some of these sites may, as a 

practical matter, meet the 24-inch soil cover requirement. 
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for public comment (but within the time specified for judicial review)”; and (2) “such objection 

is of central relevance to the outcome of the rule.” 42 U.S.C. § 7607(d)(7)(B). Against this 

standard, and for the reasons set forth herein, EPA must convene a reconsideration proceeding 

that allows for public comment regarding whether it is appropriate for EPA to limit the use of the 

binned approach for methane oxidation to MSW landfills having 24 inches or more of soil cover 

over a majority of the landfill area containing waste. Depth of soil cover as a prerequisite for 

using the binned approach to methane oxidation fractions was not identified by EPA during the 

public comment period for the Final Rule, and was not subjected to public comment during the 

rulemaking process. Further, WM’s objection to this prerequisite is of central relevance to the 

Final Rule. 

A. WM Could Not Have Commented On the Soil Cover Requirement During 

the GHG Reporting Rule Development Process 

 

EPA did not identify a 24-inch soil cover requirement, or in fact any cover depth 

requirement, as a prerequisite to the binned approach to methane oxidation during the public 

comment period for the Final Rule. By contrast, the procedural history of the Final Rule and 

EPA’s statements throughout that process correctly focused on methane flux as the key factor in 

determining site-specific methane oxidation rates. Therefore, WM had no reason or basis, prior 

to the issuance of the Final Rule, to submit comments to EPA evaluating the impact of depth of 

soil cover, as a stand-alone factor, on methane oxidation. The 24-inch soil cover requirement 

was not a logical outgrowth of the proposed rule, and therefore WM was denied any meaningful 

opportunity for comment on this issue. 

1. Methane Oxidation Under the Proposed GHG Reporting Rule 

On April 2, 2013, EPA proposed the “2013 Revisions to the Greenhouse Gas Reporting 

Rule and Confidentiality Determinations for New or Substantially Revised Data Elements,” 
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published at 78 Fed. Reg. 19802-19877 (the “Proposed Rule”). In Section II.Q of the preamble 

to the Proposed Rule, EPA discussed its proposal to allow MSW landfills to use methane 

oxidation values above the 10% default fraction at MSW landfills with moderate or low methane 

flux rates. Therein, EPA stated “we are proposing to amend the oxidation default value used in 

Equation HH-5, HH-6, HH-7, and HH-8 of subpart HH. We received comments from landfill 

owners and operators that the oxidation fraction default value of 10 percent that is required to be 

used in these equations is too low and that many landfills exhibit much higher methane oxidation 

fractions.” 78 Fed. Reg. at 19825. In explaining the basis for the amendment, EPA stated that 

“numerous U.S. landfills have been tested to estimate the oxidation fraction” since the passage of 

the original GHG Reporting Rule. Id. EPA reviewed those methane oxidation studies and 

“[b]ased on [that] review, [EPA] agree[s] that the 10 percent soil oxidation fraction likely 

underestimates the amount of methane oxidized in the soil layer when the landfill gas flow 

through the soil surface is reduced.” Id. Therefore, EPA correctly developed a binned approach 

that allows MSW landfills to apply one of three different oxidation fractions, depending on the 

rate of methane flux at a landfill. 

EPA noted that its own analysis of the existing scientific literature on methane oxidation 

at MSW landfills revealed that “methane flux rate entering the soil layer” is the “key 

variable” for determining methane oxidation.3 Id. Reflective of methane flux being the key 

determinant of methane oxidation rates, EPA proposed “three different default oxidation 

fractions depending on [a landfill’s] methane flux ‘bin,’ found in new Proposed Table HH-4.” 

Id. As proposed, Table HH-4 set forth three different “bins” within which a MSW landfill could 

 

3

 For an overview of the methane oxidation data that EPA consulted while developing Subpart 

HH to the Final Rule, see the Solid Waste Industry for Climate Solutions’ (“SWICS”) addendum 

entitled, “SWICS 2.2 Methane Oxidation Addendum 2012 Addendum,” at Docket I.D. No. EPAHQ-OAR-0934-0088. 
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fit. 78 Fed. Reg. at 19867-68. At MSW landfills “where the methane flux rate is projected to be 

high (greater than 70 grams/m2/day), the default oxidation fraction remains as 10 percent. For 

cases where the methane flux is projected to be low (less than 10 grams/m2/day), the default 

proposed oxidation fraction is 35 percent. For cases with moderate methane flux rates (10 to 70 

grams/m2/day), the proposed default oxidation fraction is 25 percent.” 78 Fed. Reg. at 19825. 

EPA appropriately concluded that “this binned approach provides a more realistic estimate of the 

role of methane oxidation in the surface soil on the methane emissions than the single default 

oxidation fraction.” Id. 

As a way of further explaining the binned approach to methane oxidation in the Proposed 

Rule, EPA stated in the preamble that parties wishing to see a more detailed analysis of the 

binned approach could consult EPA’s December 2012 Memorandum entitled, “Review of 

Methane Flux and Soil Oxidation Data,” which appears in the Final Rule docket at Docket I.D. 

No. EPA-HQ-OAR-2012-0934-0015 (the “Methane Oxidation Memo”). In the Methane 

Oxidation Memo, EPA explained that the fraction of methane oxidized at a MSW landfill is 

dependent on a number of factors, including: (1) methane flux through soil surface; (2) porosity 

of a landfill’s soil layer; (3) the number and type of microorganisms in a landfill’s surface soil 

layer; and (4) the soil’s surface temperature and moisture.” Methane Oxidation Memo at 1-2. 

Though EPA listed certain soil characteristics as potential influencers of methane oxidation 

rates, at no point in the Proposed Rule or the Methane Oxidation Memo did EPA hint or suggest 

that depth of soil cover has any impact on methane oxidation rates or that it would be used by 

EPA as a defining factor in calculating oxidation rates. In fact, the Methane Oxidation Memo 

ultimately concluded that the best approach for accounting for methane oxidation is to “use a 

binned approach where the average oxidation fraction is determined for landfills based on the 
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methane flux rate of the landfill.” Methane Oxidation Memo at 3. The Methane Oxidation 

Memo also concluded that the default fraction of 0.10 is “biased low” and that when compared 

with soil type, “the methane flux rate appears to be a much more important factor 

influencing the oxidation fraction.” Methane Oxidation Memo at 3. Just as in the Proposed 

Rule, EPA never suggested in the Methane Oxidation Memo that EPA was considering a 24-inch 

soil cover requirement as a possible gatekeeper to using the proposed methane oxidation bins. 

2. WM’s Comments on the Binned Approach 

Having had no indication, either directly or by implication, that EPA was considering 

depth of soil cover as a possible prerequisite for use of the proposed methane oxidation bins, 

WM commented favorably on the binned approach in the WM Proposal Comments. In those 

comments, WM commended EPA for the Agency’s “careful analysis of peer-reviewed literature 

and numerous peer-reviewed field measurement studies” that “resulted in proposed changes to 

estimating methane oxidation in landfill cover” that “will make greater use of site-specific 

conditions rather than national default assumptions, which will improve the reliability of 

emission estimates.” WM Proposal Comments at 1-2. WM further noted that WM supported 

“EPA’s proposed approach to replacing the single, default methane oxidation value with a more 

realistic and representative methodology for deriving methane oxidation based on site-specific 

data.” WM Proposal Comments at 2. Because depth of soil cover as a gatekeeper for making 

use of the methane oxidation fractions was never highlighted by the Agency as an issue open for 

public comment, nor implicated by any other commenter prior to the close of the public 

comment period, WM accordingly did not provide any comments concerning the appropriateness 

of such a requirement. 
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 3. Methane Oxidation in the Final Rule 

Despite providing no notice during the public comment period that a 24-inch soil cover 

requirement was being considered as a prerequisite for making use of the binned approach to 

methane oxidation in Subpart HH of the Final Rule, EPA limited the use of the binned approach 

to MSW landfills with at least 24 inches of soil cover over a majority of the landfill. For the 

very first time in the rulemaking process, EPA stated in the preamble to the Final Rule that 

“owners and operators of landfills that do not have a soil cover of at least twenty-four inches in 

depth for a majority of the landfill area containing waste must use an oxidation fraction of 0.10.” 

78 Fed. Reg. at 71925. As a result, EPA amended Table HH-4 in Subpart HH to list 0.10 as the 

default oxidation fraction “[f]or landfills . . . that do not have a soil cover of at least 24 inches for 

a majority of the landfill area containing waste,” regardless of what the methane flux rates at 

those landfills may be. 78 Fed. Reg. 71971. 

As shown above, the gatekeeping function of depth of soil cover was never addressed by 

the Agency prior to the issuance of the Final Rule, nor was such issue opened for public 

comment. Nevertheless, EPA noted that, because of public comments received, the Agency 

reviewed the methane oxidation data used to develop the binned approach. 78 Fed. Reg. at 

71925. Such review led EPA to announce in the Final Rule that “the data upon which the new 

methane flux-dependent oxidation fractions were based were for landfills with soil covers over 

30 inches in depth, so it is reasonable to limit the use of new methane flux-dependent oxidation 

fractions to landfills with similar soil cover systems.” 78 Fed. Reg. at 71925. WM believes this 

conclusion is factually incorrect, and that limiting use of the binned approach to landfills with 

certain depth of cover is not supported by the scientific literature upon which EPA based its 
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review. Further, we were unable to find any materials or analyses in the docket that would 

support EPA’s conclusion that the 24-inch soil cover requirement is necessary for methane 

oxidation, or even explain the basis upon which it was reached. 

In further explaining the new depth of cover requirement, EPA stated in the preamble that 

“two commenters noted that oxidation only occurs in landfill covers that are comprised of soil 

with the necessary depth, porosity, temperature and microbial population” and that it “agree[s] 

with the commenters who noted that oxidation must be predicated on the presence of sufficient 

soil.” 78 Fed. Reg. at 71925. The comments that the Agency has highlighted as providing 

support for the 24-inch soil cover requirement appear to have been submitted by Covanta, Inc. at 

Docket No. EPA-HQ-OAR-2012-0934-0082 and the Center for a Competitive Waste Industry 

(“CCWI”) at Docket No. EPA-HQ-OAR-2012-0934-0050. However, neither Covanta’s nor 

CCWI’s comments address depth of soil cover as a prerequisite or direct parameter for 

determining methane oxidation. Rather, both Covanta’s and CCWI’s comments focus primarily 

on the rule’s default values for collection efficiency, arguing that the values are too high. At no 

point, however, do Covanta or CCWI offer any data concerning the impact of soil depth on 

methane oxidation rates.4 For example, Covanta relied on a single study conducted by EPA in 

2012 – contradicted by the body of scientific research on collection efficiency and oxidation 

rates at MSW landfills – to argue that the assumed collection efficiency in the Final Rule should 

have been lower. Covanta Comments at 4. CCWI’s comments also focus on collection 

efficiency, their primary argument being that “in order to have an effective oxidizing cover, [a] 

 

4

 WM submitted a response to comments raised by Covanta and CCWI. Although WM’s 

comments were docketed at No. EPA-HQ-OAR-2012-0934-0119, it is unclear whether EPA 

accepted or considered WM’s comments in its formulation of the Final Rule. Nevertheless, 

because neither Covanta nor CCWI proposed a cover depth requirement for use of the binned 

approach, WM’s response could not have, and thus did not, address this issue. 
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landfill must sacrifice significant collection capacity in the active gas system.” CCWI 

Comments at 10. Thus, CCWI does not disagree with the concept of methane oxidation, but 

merely argues that the better way to “reduce fugitive emissions [from MSW landfills] has 

nothing to do with oxidation, but with the installation of a composite cover, including a 

geomembrane, which defeats oxidation.” CCWI Comments at 12. Though CCWI mistakenly 

discounts the role of methane oxidation in reducing GHG emissions at MSW landfills, CCWI’s 

comments cannot be read as supporting a soil cover requirement of any depth. In short, though 

EPA appears to have relied on the Covanta and CCWI comments as supporting the 24-inch soil 

cover requirement, they do not. 

4. The 24-Inch Soil Cover Requirement Is Not a Logical Outgrowth of 

the Proposed Rule 

The United States Court of Appeals for the District of Columbia (“DC Circuit”) has 

consistently held that an agency does not satisfy the notice and comment requirement when the 

final rule is not the “logical outgrowth” of the proposed rule. See e.g. Environmental Integrity 

Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005); Northwest Maryland Waste Disposal 

Authority v. EPA, 358 F.3d 936, 951-52 (D.C. Cir. 2004). The 24-inch soil cover requirement is 

not the logical outgrowth of the Proposed Rule because no interested party could have 

anticipated such a limitation being included in the Final Rule. A requirement in a final rule is the 

logical outgrowth of a proposed rule only if “interested parties should have anticipated that the 

change was possible, and thus reasonably should have filed their comments on the subject during 

the notice-and-comment period.” Northwest Maryland Waste Disposal Authority, 358 F.3d at 

952. Indeed, the “logical outgrowth doctrine does not extend to a final rule that finds no roots in 

the agency’s proposal because something is not a logical outgrowth of nothing.” Envtl. Integrity 

Project, 425 F.3d at 996. Similarly, the logical outgrowth doctrine does not apply “in a scenario 
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where interested parties would have had to divine the agency’s unspoken thoughts because the 

final rule was surprisingly distant from the Agency’s proposal.” Id. (internal quotation marks 

omitted) (internal citations omitted). 

The 24-inch soil cover requirement at issue here is similar to circumstances examined in 

International Union, United Mine Workers of America v. Mine Safety and Health 

Administration, in which the D.C. Circuit found that an aspect of a final rule was not subjected to 

sufficient notice and comment. The final rule in International Union included a velocity cap of 

500 feet per minute for belt entry air ventilation systems. International Union, 407 F.3d 1250, 

1252 (D.C. Cir. 2005). The proposed rule, however, did not include a velocity cap, but instead 

included a 300 feet per minute velocity minimum. In the preamble to the proposed rule, the 

Mine Safety and Health Administration (“MHSA”) stated that empirical evidence showed a cap 

was not needed. Id. Further, nothing in the rulemaking docket alerted interested parties to “the 

possibility of a maximum cap much less one set at 500,” including two reports previously 

published by the MHSA. Id. at 1260. During a public hearing on the rule, MHSA received some 

comments that a maximum velocity should have been proposed. After receiving such comments, 

however, MHSA gave “no indication” that it was intending to adopt such a standard. Id. at 1261. 

The DC Circuit found that the velocity cap required by the final rule was not a logical outgrowth 

of the proposed rule because no comments specifically suggested a 500 foot per minute cap, and 

even if they had, “MHSA did not afford a comparable public notice of its intent to adopt, much 

less an opportunity to comment on such a cap.” Id. Much like the velocity cap, the 24-inch soil 

cover requirement is so distant from the Proposed Rule that WM could not have anticipated its 

inclusion in the Final Rule. EPA’s Methane Oxidation Report does not discuss depth of soil 

cover as a prerequisite for the recommended binned approach, and no comments submitted to 
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EPA suggested a minimum depth of cover requirement for the binned approach. Although 

EPA’s preamble statements in the Final Rule attempt to identify a basis for the soil cover 

requirement, EPA’s statements are not accurate and are not supported by the scientific literature 

on which they are purportedly based. Accordingly, it was impracticable for WM or any other 

affected entity to comment on the soil cover requirement prior to publication of the Final Rule. 

B. The Soil Cover Requirement Is of Central Relevance to the Outcome of the 

GHG Reporting Rule 

The DC Circuit, quoting EPA, has stated that an objection “is of central relevance to the 

outcome of [a] rule” when that objection “provides substantial support for the argument that the 

regulation should be revised.” Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 

125 (D.C. Cir. 2012). Clearly, in this case, WM’s objections are of central relevance to the 

outcome of the Final Rule because they support a conclusion that the 24-inch soil cover 

requirement is not an appropriate prerequisite for use of the binned approach, as set forth below 

at Section IV. Further, as a result of the 24-inch soil cover requirement, MSW landfills will be 

precluded from using the binned approach to methane oxidation fractions approved by EPA as 

set forth in Subpart HH of the Final Rule if they do not have 24 inches of soil cover over a 

majority of the landfill area containing waste. These MSW landfills would suffer the burden of 

having to continue to over-report their GHG emissions simply because they do not have a depth 

of soil cover that meets the 24-inch limitation introduced by the Agency for the first time in the 

preamble to the Final Rule. 

As discussed in greater detail in Section IV, below, most active landfills do not have 24 

inches of soil cover over a majority of the landfill area containing waste, because most active 

landfills comprise areas primarily under intermediate cover. Though federal law prescribes 

minimum depths for landfill areas under daily and final cover, minimum cover depths for areas 
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under intermediate cover are prescribed by the states. The majority of states specify that 

intermediate cover must be at least 12 inches, or specify a depth of 18 total inches, which include 

6 inches of daily cover. Therefore, a requirement to meet 24-inches of soil cover will prevent 

many active landfills, including a number of landfills owned and operated by WM, from using 

the binned approach to methane oxidation fractions, notwithstanding that those fractions are not 

directly impacted by cover depth. In addition to failing to provide any notice of the 24-inch soil 

cover requirement, EPA did not suggest in the Proposed Rule that it would apply the binned 

approach differently to active landfills under intermediate cover as compared to closed landfills 

under final cover.5 

Under the Final Rule, a majority of WM’s reporting MSW landfills (and, presumably, a 

majority of all reporting active MSW landfills) will be required to use the 10% default fraction 

that the binned approach was meant to replace and that EPA has recognized is underrepresentative of the actual methane oxidation fractions realized at many MSW landfills. Such a 

result is inconsistent with EPA’s stated purpose in promulgating the binned approach and is 

contradicted by the best available scientific evidence. 

IV. The 24-Inch Soil Cover Requirement Is Unnecessary and Inconsistent with the 

Scientific Data 

 As set forth at length above, EPA undertook a robust and technically accurate analysis of 

the 10% default factor for methane oxidation, and correctly concluded that the default factor was 

 

5

 In EPA’s Summary of Public Comments and Responses for Greenhouse Gas Reporting Rule: 

2013 Revisions to the Greenhouse Gas Reporting Rule and Confidentiality Determinations for 

New or Substantially Revised Data Elements (the “Response to Comment Document”), EPA, for 

the first time, stated that “the use of binned oxidation fractions should be limited to landfills with 

final soil covers over most of the landfill area that contains waste.” Response to Comment 

Document at 191. It is not clear from this response whether EPA intended this statement as 

providing a basis for the 24-inch soil cover requirement, but this is the first and only time such 

concept appears in the administrative record. 
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not the most appropriate indicator for methane oxidation in MSW landfills. EPA’s proposed 

binned approach acknowledges, based on a multitude of scientific data, that methane oxidation 

fractions are generally greater than 10% at MSW landfills, and that methane flux is the key 

variable for determining methane oxidation. Imposition of a cover depth requirement as a 

prerequisite for use of the binned approach to methane oxidation, however, is not necessary, 

because neither the study data nor information gathered during the rule development process 

support the use of a 24-inch soil cover requirement. Such a requirement is tantamount to 

replacing methane flux with cover depth as the key variable for determining methane oxidation, 

a conclusion that contradicts EPA’s statements during the rulemaking process and is not 

supported by the available science. 

A. The Scientific Literature Related to Methane Oxidation Does Not Support 

EPA’s Conclusion that 24 Inches of Soil Cover is a Necessary or Appropriate 

Prerequisite for Using the Binned Approach 

EPA appears to have based its decision to require 24 inches of soil cover as a prerequisite 

to use of the binned approach on a concern that landfills with low methane flux and little soil 

cover could use an oxidation factor of more than 10%. However, the record does not support the 

24-inch soil cover requirement, or its purported correlation to methane oxidation. Although the 

average reported soil-cover depth data in the scientific literature cited in the 2012 SWICS 

Addendum – to the extent that such information was included in the studies – is 24 inches, twothirds of the study authors in the SWICS Addendum appear to have viewed depth of cover as so 

immaterial to methane oxidation fractions that they failed to even specify cover depth in their 

studies. That is, merely 32 of the 95 measurements referenced in Table 2 of the 2012 SWICS 
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Addendum even bothered to indicate cover depth, and even then those authors listed a range of 

other factors influencing methane oxidation.6 

More importantly, though the average reported soil cover depth at landfills in the 2012 

SWICS Addendum is 24 inches, this simple average does not support the conclusion that 24 

inches of soil cover is necessary for proper methane oxidation. To establish such a regulatory 

prerequisite, EPA should have, but did not, demonstrate a correlation between the fraction of 

methane oxidized and cover depth. There must be an articulated reason, with basis in the 

administrative record, to condition use of the binned approach upon 24 inches of soil cover 

depth. See e.g. Sierra Club v. Costle, 657 F.2d 298, 323 (D.C. Cir. 1981) (stating that during an 

agency rulemaking the “agency must consider all of the relevant factors and demonstrate a 

reasonable connection between the facts on the record and the resulting policy choice”). In fact, 

nothing in the record supports such a correlation. Rather, a review of the scientific literature 

confirms that the 24-inch soil cover requirement is not scientifically valid because there is no 

demonstrated correlation between methane oxidation and soil depth. 

As indicated in the graph attached to this Petition as Figure 1, there is no statistically 

significant correlation between cover depth and the amount of methane oxidation. Figure 1, 

Chanton, 2014 (unpublished), was developed to provide a graphical representation of the 

relationship between depth of soil cover and methane oxidation fractions for the 32 

measurements from the SWICS studies that reported cover depth. The graph clearly shows that 

there is no significant correlation between the cover depths and oxidation rates reported in those 

studies, as indicated by the scatter of oxidation data at almost every cover depth. A perfect 

 

6

 Table 2 of the 2012 SWICS Addendum does not itself reference cover depth as a relevant data 

point for determining methane flux, and these data points are not otherwise readily available in 

the docket. 
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correlation of r2 = 1.0 would show the data points aligning along a trend line and would 

demonstrate that methane oxidation increases with depth of cover. Instead, the studies show that 

the value of r2 is very low, at only 0.07. Further the p-statistic, which describes how well the 

data “fit” a linear relationship between oxidation and cover depth – as shown by the diagonal line 

in Figure 1 – is 0.137. Such p value demonstrates a lack of correlation between soil depth and 

oxidation rate. By conventional criteria, a p value this high is considered statistically 

insignificant, whereas a value for p=0.05 or 1/20 chance is the standard boundary between 

statistical significance and statistical insignificance. Stated plainly, there is no evidence that the 

24-inch soil cover requirement is a reasonable and scientifically-sound prerequisite for use of the 

binned approach. 

Additionally, more detailed review of the studies referenced in the 2012 SWICS 

Addendum does not support the conclusion that soil depth is a significant factor influencing 

methane oxidation.7 In fact, many of the studies conclude that methane oxidation primarily 

 

7

See Barlaz et al., “Evaluation of a biologically active cover for mitigation of landfill gas 

emissions,” Environmental Science and Technology, 38: 4891 – 4899, 4891(2004) (“Several 

factors have been shown to influence the extent of CH4 oxidation in landfill cover soils, 

including CH4 and O2 concentrations, temperature, moisture content, soil composition, moisture 

holding capacity, pH, and nutrient content.”); Bogner et al., “Kinetics of Methane Oxidation in a 

Landfill Cover Soil: Temporal Variations, a Whole-Landfill Oxidation Experiment, and 

Modeling of Net CH4 Emissions,” Environmental Science and Technology, 31: 2504-2514, 2504

(1997) (“Limitations on physical transport become major controls in the field, where relative 

rates of CH4 and O2 transport to a given depth are restricted by rates of methanogenesis below 

and by O2 transport from atmospheric sources above. Other factors that directly control 

methanotrophic microbial activity in the field include temperature, moisture, organic carbon 

content, available nutrients, and predation by or competition with other soil microorganisms.”); 

Chanton and Liptay, “Seasonal variation in methane oxidation in landfill cover soils as 

determined by an in situ stable isotope technique,” Global Biogeochemical Cycles, 14: 51-60, 57 

& 59 (2000) (noting that “[i]n the landfill we studied, temperature was the main factor in 

controlling methane oxidation at specific sites (Figures 8a and 8b)” and that “[m]ethane 

oxidation occurs in the outer rind of the landfill and is subject to environmental temperature 

fluctuations which cause rates to be greater in summer and lesser in winter.”); Christopherson 

et al., “Lateral Gas Transport in Soil adjacent to an Old Landfill: Factors Governing Emissions 
18 

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occurs in the upper part of the cover, close to the surface, and several of the studies do not even 

calculate methane oxidation below a depth of 30 to 45 cm (15 to 18 inches).8 Such findings are 

 

and Methane Oxidation,” Waste Management and Research, 19: 595-612, 595-96 (2001) 

(“Methane oxidation is controlled by various environmental factors: temperature, soil water 

content, nutrients, sub-strate, and oxygen concentrations, etc.”); Hilger et al., “Methane 

oxidation and microbial exopolymer production in landfill cover soil,” Soil Biology and 

Biochemistry, 32:457-467, 457-58, (2000) (“Some of the factors that influence microbial CH4

oxidation in landfills include climate variables such as moisture and temperature, as well as CH4

concentrations, soil type, and pH.” (internal citations omitted)); Kightley et al., “Capacity for 

methane oxidation in landfill cover soils measured in laboratory-scale microcosms,” Applied and 

Environmental Microbiology, 61:592-610, 600 (1995) (“In conclusion, our data show that soil 

microbial community adapts rapidly to the presence of elevated CH4 concentrations and can 

effectively reduce emissions of CH4 from the surface of landfill soil. The capacity for CH4

oxidation in soil is related to the depth of O2 penetration and to the nutrient status of the soil, 

which may regulate the extent to which the methanotrophic community can develop.”); Liptay 

et al., “Use of stable isotopes to determine methane oxidation in landfill cover soils,” Journal of 

Geophysical Research, 103:8243-8250, 8243 (1998) (“Soil oxidation potential can change with 

factors such as temperature, pH, and moisture content.”); Stern et al., “Use of a biologically 

active cover to reduce landfill methane emissions and enhance methane oxidation,” Waste 

Management, 27: 1248-1258, 1249 (2007) (“Methane oxidation is controlled by several factors 

including soil temperature, moisture, and texture, as well as pH and nutrient content. Previous 

studies have shown seasonal variation in CH4 oxidation, which is greater during warmer months. 

In addition, there appears to be an optimum soil moisture for CH4 oxidation, 10-20% (w/w) at 

temperatures from 25C to 30 C. . . . Soil composition is also an important parameter, as soil 

texture and grain size affect oxygen diffusion into landfill cover soils. Coarser grained soils and 

porous mulch have been found to be superior to finer grained soils and clays.”). 

8 Bogner et al., supra note 7, at 2510 (concluding that there is one group of microorganisms 

“that is continuously active in shallow landfill soils, which thus have the capacity for continuous 

CH4 oxidation that rapidly responds to a wide range of dynamic CH4 concentrations. The only 

exception would be during times of periodic surface saturation.”); id. (“As shown by previous 

literature, rates of CH4 oxidation are also dependent on temperature, moisture, and other 

variables. Nevertheless, in a well-aerated landfill soil over short time frames where a wide 

dynamic range of CH4 oxidation rates is possible, the primary controlling variable appears to be 

CH4 concentration and, secondarily, aeration status (O2 availability).”); id. (“Previous stable 

carbon isotopic measurements for deep landfill CH4 below the cover materials, suggest that CH4 

oxidation is also important, at least periodically, in deeper landfill settings.”) (p. 2510); Chanton 

and Liptay, supra note 7, at 59(“Methane oxidation occurs in the outer rind of the landfill and is 

subject to environmental temperature fluctuations which cause rates to be greater in summer and 

lesser in winter.”); Chanton et al., Environmental Science and Technology, 42:665-670, 668 

(2008) (“Improved field methods to quantify methane oxidation in landfill cover materials using 

stable carbon isotopes.”); id. at Figure 1 (demonstrating that C-13 gets more positive between a 

depth of 20 and 60 cm, which is indicative of methane oxidation); Czepiel et al., “Quantifying 

the effect of oxidation on landfill methane emissions,” Journal of Geophysical Research, 
19 

1227842_1 

consistent with the fact that the oxygen necessary for methane oxidation is supplied by the 

atmosphere above the cover of the landfill, and as thickness of cover increases, it can become 

more difficult for oxygen to penetrate deep cover depths.

Moreover, the scientific data cautions against using any one factor as a prerequisite for 

the binned approach. Indeed, the relevant literature shows that methane oxidation is influenced 

by a number of factors other than cover thickness, including climate, moisture levels, and soil 

characteristics. See 2012 SWICS Addendum at 16. Thus, no single factor influencing methane 

oxidation is appropriate as a prerequisite for the binned approach. Instead, the literature makes 

clear that the factors influencing methane oxidation are complex and interact in different ways at 

different landfills. This conclusion is reflected in the 2012 SWICS Addendum, which 

 

101(D11):16721-16729, 16723 (1996) (“The soils at each location were sampled at 5-cm 

intervals from the surface to a depth of 25 cm. . . . The distribution of oxidation in the soil 

column was similar in each profile with maximum occurring in the 5 to 10-cm depth interval in 

seven of the nine profiles (Figure 1).”); DeVisscher et al., “Methane Oxidation in Simulated 

Landfill Cover Soil Environments,” Environmental Science and Technology, 33:1854-1859, 

1854 (1999) (“By combining this kinetic data with the soil gas composition data, the actively 

methane oxidizing zone in the soil column could be determined and an in situ assessment of 

oxygen limitation could be performed. Methane oxidation takes place manly in the top 30 cm of 

covering soil.”); Hilger et al., supra note 7, at 464 (“The CH4 oxidation potential of soil from 

the laboratory soil columns is presented by horizon in Table 4. . . . The average CH4 oxidation 

potential measured from the top three horizon of all columns [0 to 15 cm] significantly exceeded 

that of the bottom three horizons [15 to 30 cm] (p <0.001), where O2 was more limited (Table 

1).”); Kightley et al., supra note 7, at 597-600 (concluding that “our data show that soil 

microbial community adapts rapidly to the presence of elevated CH4 concentrations and can 

effectively reduce emissions of CH4 from the surface of landfill soil. The capacity for CH4

oxidation in soil is related to the depth of O2 penetration and to the nutrient status of the soil, 

which may regulate the extent to which the methanotrophic community can develop”); Scheutz 

and Kjeldson, “Capacity for biodegradation of CFCs and HCFCs in a methane oxidative 

counter-gradient laboratory system simulating landfill soil covers,” Environmental Science and 

Technology, 37: 5143-5149, 5146 (2003) (“Vertical soil gas profiles showed that both methane 

and oxygen were often present between 20 - and 40-cm depth. From 60-cm depth, the soil gas 

consisted of almost pure LFG – with only very low or no oxygen present.”); Wilhusen et al., 

“Long-term behavior of passively aerated compost methanotrophic biofilter columns,” Waste 

Management, 24: 643-653, Figure 3, 647 (2004) (showing the change in CH4 concentration at 

various depths and demonstrating that gas concentration typically begins to decline (indicating 

methane oxidation is taking place) at a depth of 40 cm). 
20 

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concluded that the “methane emission rate in landfill covers is controlled by the interrelation 

among the soil physical properties such as gas filled porosity, organic content and moisture; 

microbiological factors such as temperature, and substrate availability; and the presence or 

absence of a gas extraction system. Because the emission rate is controlled by these variables, it 

necessarily reflects the interplay of these processes.” 2012 SWICS Addendum at 16. Therefore, 

careful review of the literature bears the conclusion that the rate of methane flux into cover is the 

most accurate determinant of methane oxidation. Furthermore, such conclusion is informed by 

the well-established fact that the methanotrophic bacteria that are responsible for the methane 

oxidation process are more effective at lower flux rates. 

C. The Imposition of an Arbitrary 24-Inch Cover Requirement Will Result in 

Inaccurate Reporting of GHG Emissions 

Not only is the 24-inch soil cover requirement unsupported by the scientific literature, but 

such requirement will lead to significant over-estimation of GHG emissions at many landfills 

that do not have 24 inches of cover over a majority of their sites, and thus a general 

misrepresentation of the relative significance of this class of greenhouse gas emitters. As EPA 

has properly recognized throughout the development of the Final Rule, the 10% oxidation 

fraction is biased low. In fact, the limitation of the 10% default fraction was even recognized by 

the author of the 1996 study that EPA relied on to establish the original GHG Reporting Rule’s 

oxidation default value. Indeed, that study concluded that, “[w]e have presented a quantitative 

study of the primary factors influencing microbial oxidation of CH4 in the surface soils of 

landfills. The model estimate of annual whole landfill oxidation of 10% is consistent with the 

current low range of oxidation estimates. However, the dominance of temperature as a primary 

influencing factor and the mid-latitude climate of the studied landfill implies that annual whole 

landfill oxidation rates in warmer climates, under similar conditions, would be significantly 
21 

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higher than estimates for this site.” Czepiel et al. at 16,728. A review of the more 

comprehensive literature on which the binned approach was based confirms that oxidation 

factors of less than 10% are rare. For example, of the 90 methane oxidation fractions in the 

SWICS Addendum, only six were below 10%. See 2012 SWICS Addendum, Table 2 at 3-8. 

Further, oxidation fractions greater than 10% were observed at all cover depths, including those 

less than 24 inches, demonstrating that 24 inches of cover is not a prerequisite for methane 

oxidation fractions that are consistent with the binned approach. Instead, as concluded in the 

2012 SWICS Addendum, methane flux is the key variable for determining oxidation fractions. 

Id.

Thus, based upon the data in the record, the Agency has not demonstrated and the 

scientific studies do not support the notion that landfills with soil depths of less than 24 inches 

will be unlikely or unable to achieve oxidation rates of over 10%. 

D. Effect of Soil Cover Requirement On WM Landfills 

 EPA’s erroneous inclusion in the Final Rule of the 24-inch soil cover requirement as a 

prerequisite to use of the binned approach to methane oxidation will affect many WM landfills’ 

reporting procedures and results. As noted above, WM currently reports emissions for 240 

MSW landfills. Many WM active landfills that operate primarily under intermediate cover will 

not be able to demonstrate compliance with a 24-inch depth of soil cover. However, based on 

calculated methane flux rates, and without the imposition of a 24-inch soil cover requirement, 

almost all of WM’s reporting landfills would have been able to use 25% or 35% methane 

oxidation rates under the binned approach, as proposed in the Proposed Rule. 

 Specifically, under the Proposed Rule, only 9 of WM’s reporting MSW landfills would 

default to the 10% oxidation fraction, whereas 173 sites would be in the 25% bin, and 58 sites 
22 

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would be in the 35% bin. In other words, a full 96% of WM’s reporting landfills would be able 

to utilize oxidation fractions in excess of 10%. However, with the Final Rule’s 24-inch soil 

cover requirement, only 74 sites will benefit from the binned approach and 157 sites that would 

otherwise fall within the 25% or the 35% bins will be forced to use the 10% oxidation fraction – 

despite the fact the literature plainly establishes that such sites are likely to have oxidation 

fractions well in excess of 10%. By way of example, using only the formula, Butterfield Landfill 

in arid Arizona with an active gas collection system would be able to utilize a 35% oxidation 

fraction were it not for the 24-inch soil cover requirement. Similarly, Hickory Hill Landfill9 in 

South Carolina, a wet site also with active gas collection system, would be able to use a 35% 

oxidation rate in the absence of the 24-inch soil cover requirement. In yet another example, 

Dafter RDF10 in Michigan, a temperate site with no gas collection system, would be able to use a 

35% oxidation rate in absence of the 24-inch soil cover requirement.11 

Permitting these landfills, that do not meet the 24-inch soil cover requirement, to utilize 

the binned approach, is scientifically appropriate. First, as a general matter, the high levels of 

collection efficiency realized at many WM landfills result in generally low methane flux rates, 

which are consistent with higher oxidation fractions. Second, while intermediate cover 

requirements generally do not require the placement of 24 inches of soil, the purposes served by 

intermediate cover are equally suited to ensure the availability of methane oxidation. Oxidation 

fractions significantly higher than 10% have been measured at landfills with less than 24 inches 

of cover, including in areas with daily cover (six inches). Further, as noted above, many 

scientific studies have concluded that maximum oxidation occurs close to the surface of the 

 

9

 Hickory Run Landfill is owned and operated by Waste Management of South Carolina, Inc. 

10 Dafter RDF is owned and operated by Waste Management of Michigan, Inc.

11 The examples and figures included in this paragraph are based on WM’s 2011 GHG Reporting 

Rule data. 
23 

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landfill at depths of less than 18 inches. See footnote 8. In short, at WM landfills, there is no 

basis to believe that a 10% default oxidation factor, which WM would be forced to use under the 

Final Rule, will represent an accurate accounting of emissions. By contrast, as amply supported 

in EPA’s record and the study data included therein, such factor likely would not be 

representative of available data for varying cover depths. 

That the 24-inch soil cover requirement will result in inaccurate reporting is best 

demonstrated by analysis of the Lancaster Landfill12 located in California, one of the sites that 

was a subject of the scientific literature referenced in the 2012 SWICS Addendum. The 

Lancaster Landfill is located at an arid site in Southern California and has an active gas 

collection system. Under the oxidation binned approach it would utilize a 35% oxidation factor. 

This is consistent with Lancaster’s actual oxidation value, which was conservatively determined 

to be an average of greater than 34%,13 with a low methane flux rate ranging from 0.90 g 

CH4/m2/d to 3.96 g CH4/m2/d.14. However, as an active landfill, it is primarily under 

intermediate cover of less than 24 inches and thus, under the Final Rule, would have to use the 

default oxidation fraction of 10%. 

V. Proposal For Reconsideration 

A. A Soil Cover Prerequisite Is Neither Necessary Nor Appropriate for Use of 

the Binned Approach 

Pursuant to federal law, all MSW landfills will necessarily have at least six inches of 

cover over a majority of the landfill, consistent with minimum requirements for daily cover. 

 

12 Lancaster Landfill is owned and operated by Waste Management of California, Inc. 

13 Chanton et al., “Landfill Methane Oxidation Across Climate Types in the U.S.,” 

Environmental Science & Technology, 45: 313-319, Table 2, 316 (2011). 

14 Goldsmith et al., “Methane emissions from 20 landfills across the United States using vertical 

radial plume mapping,” Journal of the Air & Waste Management Association 62: 183-197, Table 

2 (Location C5), 192 (2012).
24 

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40 CFR § 258.21(a). Hence, even without inserting any minimum cover depth requirement, 

there will never be a situation in which either the default or the binned approach will be used at a 

landfill with “no” cover. Therefore, WM recommends that during reconsideration of the Final 

Rule, EPA remove the 24-inch soil cover requirement and allow all MSW landfills to make use 

of the binned approach without limitation based on cover depth. This approach is consistent with 

the methane oxidation data, is consistent with the Proposed Rule, and will allow for MSW 

landfills to more accurately report their GHG emissions based on site-specific factors influencing 

methane flux. 

B. If EPA Nonetheless Determines That a Soil Cover Prerequisite is Necessary 

For Use of the Binned Approach, EPA Should Use Intermediate Cover As 

The Requirement 

While federal regulations set minimum technical criteria for daily cover, 40 CFR § 

258.21(a), and final cover, 40 CFR § 258.60(a), pursuant to Subtitle D of the Resource 

Conservation and Recovery Act, EPA has left to the states the determination of an appropriate 

intermediate cover for those portions of landfills which do not receive waste on a daily basis but 

are not yet closed. That the States should set minimum requirements for intermediate cover is 

appropriate inasmuch as the primary purpose of cover in operating landfills is to control disease, 

fires, odors, blowing litter, and scavenging, and the risks of each of these hazardous is dependent 

upon factors such as soil composition, humidity, and temperature which vary across the country. 

If EPA believes, despite the lack of any demonstrated correlation between cover depth 

and oxidation, that the binned approach must be restricted to landfills meeting a minimum cover 

depth above six inches, then intermediate cover is a more appropriate and achievable restriction. 

A survey of 27 states in which roughly 77% of the reporting MSW landfills are located 

demonstrates that total intermediate cover depth will meet or exceed 12 inches, which, as set 
25 

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forth above, is sufficient for oxidation fractions premised on methane flux under the binned 

approach. Further, this approach would provide a more accurate assessment of GHG emissions 

than utilization of the default oxidation rate of 10%. 

As shown in Appendix “B,” if MSW landfills with intermediate cover over a majority of 

area containing waste are permitted to use the binned approach, a great majority of these landfills 

will have a minimum of 18 inches of cover. For example, 21 states require intermediate cover 

(which is generally placed on top of the federally-required six inches of daily cover) of 12 inches 

or more. Only six of the states require a minimum of 12 total inches of intermediate cover. Thus, 

if intermediate cover is used as the defining criteria in lieu of 24 inches, reporting MSW landfills 

using the binned approach will generally have in excess of 12 inches of cover. 

Further, identifying intermediate cover as the “gatekeeper” serves the purpose of ensuring 

that landfills that do not meet the requirement will not improvidently use the binned approach. 

That is, because intermediate cover requirements are already in place and monitored in order to 

comply with state laws and permits, landfills will necessarily be able to assure themselves and 

establish for EPA, if necessary, that the requisite cover thickness is achieved. Conversely, 

although active landfills may, for various reasons, may utilize more than 24 inches at portions of 

their landfills, it is logistically difficult for such landfills to verifiably demonstrate whether the 

majority of waste-containing area meets the proposed 24-inch cover depth. 

For these reasons, WM proposes that, if EPA declines to remove the cover requirement 

entirely, then it should replace the 24-inch soil cover requirement with a requirement for 

intermediate cover as a prerequisite to use of the binned approach. 
26 

1227842_1 

VI. Conclusion

 For the reasons set forth herein, WM requests that the Agency commence a proceeding to 

reconsider the Final Rule pursuant to Section 307(d)(7)(B) of the CAA, 42 U.S.C. § 

7607(d)(7)(B). WM appreciates EPA’s consideration of this Petition and would be glad to 

provide additional information in support of the Petition as may be necessary. 

Carter Lee “Kerry” Kelly, Director 

Federal Public & Regulatory Affairs 
27 

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Figure 1 

Plot Showing Relationship between Methane Fraction Oxidized and Cover Thickness 

n=32, number of measurements out of a total of 95 in list of SWICS references that reported 

cover thickness (some data points overlap and appear to be a single point) 

R

2 =0.072, correlation coefficient or percentage of results where oxidation can be explained by 

cover thickness. A value of 0.07 is very low, essentially showing no correlation between the two 

variables. 

r=.269 DF=30, the two-tailed p value describing fit to the linear model equals 0.137, which also 

demonstrates lack of correlation between the two variables. By conventional criteria, a p value 

this high is considered to be statistically insignificant. A value for p=0.05 or 1/20 chance is the 

standard boundary between statistical significance and statistical insignificance. 

y = 0.0023x + 0.2614

R

2

 = 0.0724

0.00

0.20

0.40

0.60

0.80

1.00

1.20

0 20 40 60 80 100 120

cover thickness, cm

fraction oxidized

n = 32

p = .137

no significant relationship. 
1 

Appendix A 

May 16, 2013 

Via Electronic Transmission: MRR_Corrections@epa.gov

Docket ID No. EPA-HQ-OAR-2012-0934 

Ms. Carole Cook 

Office of Atmospheric Programs, Climate Change Division 

U.S. Environmental Protection Agency (6207-J) 

1200 Pennsylvania Ave., NW 

Washington, DC 20460 

Re: Comments Regarding Docket ID No. EPA-HQ-OAR-2012-0934 

Dear Ms. Cook: 

Waste Management (“WM”) is pleased to offer the following comments on the United States 

Environmental Protection Agency’s (“EPA’s” or “Agency’s”) Proposed 2013 Revisions to the Greenhouse 

Gas Reporting Rule and Proposed Confidentiality Determinations for New or Substantially Revised Data 

Elements (hereinafter referred to as the “Technical Corrections”) 78 Fed. Reg. 19,802 (April 2, 2013). 

WM is the leading provider of comprehensive waste and environmental services in North America. We 

are also a leading producer of renewable, waste-based energy – enough to power nearly 1.2 million 

homes each year. Headquartered in Houston, WM operates in 48 states in the U.S. and most Canadian 

provinces. Our network of operations includes 390 collection operations, 352 waste transfer stations,

125 recycling facilities for differing commodities, 36 organic composting and processing facilities, 266 

active landfill disposal sites, 131 landfill gas-to-energy projects, 17 waste-to-energy (WTE) plants, and 

five independent power production plants (operations as of January 2012). 

The size, number and diversity of our operating facilities, as well as the nature of our business activities, 

makes reporting our GHG emissions a time-consuming and far more complex task than for many 

entities. WM has gained considerable experience with implementing the Mandatory GHG Reporting 

Rule (GHG MRR) over the last three years for over 200 active and closed Municipal Solid Waste (MSW) 

landfills we own or operate, 17 WTE facilities and 4 independent power plants owned or operated by 

Wheelabrator Technologies Inc., a wholly owned subsidiary of WM. 

Overall, we commend the EPA for proposing technical corrections to the methods for estimating MSW 

landfill methane emissions, and monitoring methane concentrations based on peer-reviewed science 

and abundant site-specific technical data provided to the Agency. The corrections will enhance accuracy 

of landfill emissions reporting while reducing the monitoring burden for reporters. EPA’s careful 
2 

analysis of peer-reviewed literature and numerous peer-reviewed field measurement studies resulted in 

proposed changes to estimating methane oxidation in landfill cover. These changes will make greater 

use of site-specific conditions rather than national default assumptions, which will improve the 

reliability of emission estimates. We support EPA’s proposed approach to replacing the single, default 

methane oxidation value with a more realistic and representative methodology for deriving methane 

oxidation based on site-specific data. 

WM also supports the Agency’s proposal to reduce the requirement to measure methane 

concentration at each landfill gas control device from weekly to monthly. Data from the first two 

years of GHG reporting from both private and public landfills demonstrate that reducing the frequency 

of methane concentration monitoring from weekly to monthly does not affect the accuracy of reported 

emissions. In fact, the data shows that the significantly higher costs associated with conducting weekly 

monitoring and recordkeeping do not provide concomitant benefits of improved data accuracy or 

reliability. The proposed change to monthly monitoring frequency will also align the GHG MRR with 

monitoring requirements in the existing New Source Performance Standards for MSW Landfills (see 40 

C.F.R. 60 Subpart WWW). 

While WM believes that EPA has made some significant enhancements to the GHG MRR, we do have 

specific concerns, detailed below, regarding the manner by which EPA will implement the proposed 

increase in the global warming potential (GWP) for methane from 21 to 25, including the Agency’s 

proposal to apply the new GWP to prior years’ facility emissions reports. The proposed GWP increase 

for methane will disproportionately affect the MSW Landfill sector, which comprises both private 

companies and numerous local governments. The cost/benefit analysis performed (see docket ID No. 

EPA-HQ-OAR-2012-0934-0022, herein referred to as the “Impact Analysis”) to assess the effects of the 

revised GWP on the landfill sector significantly underestimates the number of newly subject MSW 

Landfills, incorrectly assumes that closed landfills would not become newly subject to reporting 

requirements, and significantly underestimates the new costs of compliance. Below, we provide 

detailed comments on key aspects of the Subpart A general rule provisions, Subparts C and HH. 

Subpart A 

EPA Should Apply Revised GWPs on a Prospective Basis

WM does not oppose the Agency’s proposal to revise the GWPs in Table A-1 to conform to the UN 

Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report (AR4). The U.S. has 

committed to submitting its National GHG Inventory for 2015 and future years using the GWPs 

published in the AR4. However, consistent with that commitment, WM supports the Agency’s use of 

the revised GWPs to calculate facility emissions solely on a prospective basis, once it finalizes and 

publishes these Technical Corrections. As described below, WM believes that the retroactive 

application of the GWP values to the GHG reporting rule and/or other potentially affected programs 
3 

such as the Prevention of Significant Deterioration (“PSD”) or Title V permitting programs would be 

inappropriate from both a policy and legal perspective. 

WM supports the Agency’s proposed use of a 100-year timeframe for GWPs consistent with the IPCC’s 

AR4 and the UNFCCC reporting guidelines for annual inventories. Furthermore, we support EPA’s 

statement that it is not the Agency’s intent to revise GWPs each time new data are published. (78 FR 

19808) We agree with the EPA that it is vitally important that reporters have consistent and predictable 

requirements to avoid additional compliance burden and costs. Further, it is important for stakeholders 

who use GHG MRR information to have access to accurate emissions estimates based on 

comprehensible and consistent information from year to year. The Agency’s plan to change prior facility 

emissions reports will undermine both goals. 

Retroactive Application of the Revised GWP Values is Unwarranted and Will Impose Unnecessary 

Burden on GHG Reporters: 

WM objects to the retroactive revisions to GHG reports based on the proposed GWP values, because 

such revisions would be unnecessary and unduly burdensome for GHG reporters. We understand that 

under the UNFCCC guidelines for national inventories, EPA is required to recalculate national emissions 

when emission factors or other methodological approaches change. However, the GHG Reporting 

Program is independent of the national inventory, and should not be bound to that practice. 

Furthermore, the Agency’s rationale that retroactive changes to facility emission reports will assist the 

Agency with its national inventory is weak in light of the very different methods used to estimate 

national and facility emissions. As EPA has acknowledged, it calculates the national GHG inventory using 

top-down national energy data and other national statistics. But, the national data is not “broken-down 

at the geographic or facility level.” 74 Fed Reg. 16455. To the extent facility-level emissions reported 

under the GHG MRR are used to validate or improve the national inventory, EPA can make appropriate 

updates in the context of the national inventory. It is not necessary to revise retroactively all facilitylevel emissions that were reported properly under the existing rule. 

EPA’s Intent to Apply Revised GWPs on a Retroactive Basis is Inconsistent with the Goals and Scope of 

the Overall Proposal: 

While the Agency is proposing to make retroactive changes to facility emissions using revised GWPs, 

which for MSW landfills will increase facility emissions by about 20 percent, EPA is not proposing to 

recalculate facility emissions to reflect other changes to reporting methodologies. WM is concerned 

that this inconsistency in approach will fail to provide accurate or meaningful data in the overall context 

of the Technical Corrections. For example, the Agency’s Technical Corrections include changes to refine 

methane oxidation rates at landfills from 10 percent to 25 or 35 percent, which could significantly 

reduce estimates of landfill methane emissions. Yet the Agency has not proposed to make retroactive 

changes in facility emissions to reflect these refined methodological changes. Accordingly, the Agency’s 

intent to make retroactive changes to facility emissions based on GWP is internally inconsistent with the 

overall scope of the proposed rule changes, and reflects an arbitrary selection of particular revisions to 
4 

apply on a retroactive basis. The revised GHG emissions data will have little value if revisions address 

one change (e.g., GWP value) but not others (e.g., methane oxidation rates). 

Retroactive revision of GHG emission data will also burden GHG reporters because they will be forced to 

either recalculate emissions (under Option 1) or validate the Agency’s calculations (under Option 2). In 

addition to the burden of recalculating prior years emissions, the retroactive revisions will create a great 

deal of confusion for stakeholders that rely on the GHG reports and raise questions about the validity of 

prior reporting efforts even outside of the mandatory reporting requirement. For example, over the last 

several years, companies such as WM have been at the forefront of voluntarily reporting GHG emissions 

(using similar methods as required under the GHG reporting rule) and other sustainability metrics to a

wide variety of interested stakeholders such as investors, suppliers, and/or customers. Revising the 

GWP values on a retroactive basis may also require revisions to numerous reports, plans, or even 

certifications that were prepared based on the best available information at the time. Such reports may 

now be considered inaccurate based on EPA’s retroactive data changes. Companies would have a 

significant burden in trying to correct prior submissions or even verified certifications, and then 

communicating to stakeholders as to why those submissions have changed. 

Because the retroactive application of the revised GWP values to prior year GHG emission reports is 

unnecessary, unduly burdensome, and confusing, WM urges the Agency to apply the revised GWP 

values on a prospective basis only. Specifically, WM supports EPA’s proposal to require existing GHG 

reporters to incorporate data changes into the 2013 calendar year report due as of March 31, 2014. 

Likewise, WM agrees that new reporters that will be subject to the requirements of Part 98 as a result 

of the proposed GWP revisions should not be required to collect or report data until calendar year 

2014, with the GHG report due as of March 31, 2015. 78 Fed. Reg. at 19833. 

EPA Must Provide Clear Guidance in the Technical Corrections that the Revisions to the GWP Values 

have No Retroactive Effect on PSD or Title V Permitting: 

WM is deeply concerned over the lack of clarity provided by EPA with respect to the practical and/or 

legal effect of the revisions to the GWP values on regulatory programs such as PSD or Title V permitting. 

As the Agency knows, the GWP values are used by EPA and authorized states to determine the 

applicability of the PSD and Title V permitting programs. The Agency has made it clear that it is 

considering applying the revised GWP values to prior reporting years under the GHG Reporting Rule. 

However, the Agency has provided almost no guidance as to whether the change to the GWP values and 

previously reported data would also affect prior PSD and Title V determinations. The preamble to the 

Technical Corrections ambiguously provides that EPA will “work with permitting authorities and other 

stakeholders as necessary to provide guidance” on questions regarding PSD and Title V applicability. 78 

Fed. Reg. 19802, 19809. This statement provides no direction to either the states or the regulated 

public with respect to the legal effect of EPA’s rule changes, or EPA’s intentions for the manner in which 

the proposal may affect important regulatory programs. 

 
5 

EPA’s vague statements with respect to PSD and Title V permitting create a tremendous amount of 

uncertainty for the regulated community. By failing to clarify the legal effect of the revisions to the GWP 

values on the PSD or Title V programs, EPA has created the potential for significant confusion with 

respect to the status of certain GHG reporters relating to PSD and/or Title V. This concern is substantial 

for facilities within the municipal waste landfill sector, which will be subject to an approximate 20%

increase in GHG emissions as a result of the proposed GWP revision, and is expected to have the most 

new GHG reporters as a result of the rule. Moreover, EPA’s failure to clarify the effect of the proposal 

on existing facilities may leave open the possibility for agency enforcement action, a citizen suit, and/or 

the reopening of a previously approved permit. 

WM is not aware of any precedent under the Clean Air Act that would require existing facilities to apply 

new standards or emission factors retroactively, or that would subject existing facilities to regulatory 

requirements based on such retroactive application. In this context, for example, EPA must clarify that 

prior permit determinations should not be reopened or collaterally attacked based on revised 

(increased) GHG emission estimates. If emissions from a non-Title V facility would increase above major 

source thresholds as a result of the GWP revision, the transition to Title V status may not be deemed to 

have occurred at any point prior to EPA’s promulgation of the proposed rule. Likewise, to the extent 

that a non-PSD source would exceed PSD major source thresholds as a result of the GWP revision, such 

status may only be applied prospectively. Most importantly, modification projects undertaken prior to

the GWP revision may not be reopened on the basis of changed emission estimates or PSD status, and 

the Tailoring Rule PSD requirements may only apply to modification projects that occur after the rule 

revisions. Under no circumstances should any calculated increase in GHG emissions resulting from the 

proposed GWP revisions be interpreted for regulatory applicability purposes to constitute or relate to a 

facility modification. 

Given the legal precedent regarding retroactive rulemaking, EPA could not have intended that the 

PSD/Title V implications of the proposed rule would be retroactive. Specifically, the U.S. Supreme Court 

has consistently made clear that retroactivity is not favored in the law. Bowen v. Georgetown Univ. 

Hosp., 488 U.S. 204, 208-209 (1988). Absent an express statutory grant, courts generally will not find 

that an agency rule has retroactive effect. The general disfavor of retroactivity is based on 

considerations of fair notice, reasonable reliance, and settled expectations, all of which are applicable 

considerations in the current context. Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994). 

In determining whether a regulation has retroactive effect, courts consider “whether it would impose 

new duties with respect to transactions already completed.” Id. at 280. Courts have distinguished 

between regulations that impose new sanctions on past conduct, which are invalid unless specifically 

authorized, and regulations that merely "upset expectations," which are invalid only if arbitrary and 

capricious. Nat'l Petrochemical & Refiners Ass'n v. EPA, 630 F.3d 145, 159 (D.C. Cir. 2010). These two 

categories are generally referred to as "primary" and "secondary" retroactivity, respectively. 

Applying these principles to the Technical Corrections, the retroactive application of PSD or Title V 

would be considered as having “primary” retroactive effect because it would impose new sanctions on 
6 

past conduct (e.g., construction/modification without a PSD permit). As such, the rule would likely be 

challenged and struck down because the Clean Air Act does not authorize EPA to implement rules with 

primary retroactive effect. Sierra Club v. Whitman, 285 F.3d 63, 68 (D.C. Cir. 2002). 

Because of the lack of clarity, and to avoid legal challenges that will delay and encumber the rulemaking, 

WM requests that the Agency explicitly provide in the Technical Corrections that the revisions to the 

GWP values would not retroactively apply to PSD, Title V, or any other regulatory program that relies on 

the GWP values. By contrast, the GWP revisions may only apply prospectively, in a manner that 

provides clear notice to affected facilities with respect to the manner in which the revisions will be

implemented and the legal effect of the revisions on related regulatory programs. 

One approach that EPA could take to address these concerns would be to establish two different tables 

in the regulations that would be used to determine PSD/Title V applicability depending on the date. For 

example, the existing Table A-1 to subpart of part 98 would be used to determine GHG emissions under 

sections 51.166, 52.21, 70.2, and 71.2 until the effective date of the rule, and a new Table A-1(a) 

containing the revised GWP values would then be used to determine GHG emissions after that date. 

This approach would be similar to the biogenic deferral rule where EPA amended sections 51.166, 52.21,

70.2, and 71.2 to provide that prior to a date certain (July 21, 2014), the mass of GHG emissions shall not 

include biogenic emissions. For pending permit applications, if the application has been determined to 

be administratively complete by the effective date of the rule, then the applicant would not be required 

to revise emissions using the revised GWPs. This approach has been used by the Agency in its 2012 

PM2.5 NAAQS PSD implementation determination that grandfathered existing permits.15. 

Likewise, EPA could require facilities renewing or modifying existing permits after the effective date of 

the Technical Corrections to update GHG emissions using the revised GWP values. EPA must clarify, 

however, that such application submittals would not be considered modifications that would 

themselves trigger PSD Tailoring Rule requirements. 

 

 

15 In early 2013, EPA issued the Final Rule, National Ambient Air Quality Standards for Particulate Matter, 78 Fed. 

Reg. 3086 (Jan. 15, 2013). This rule strengthened the annual PM2.5 standard to 12 μg/m3 and retained the 24-

hour PM standard at a level of 35 μg/m3. The existing annual standard, 15.0 μg/m3, was set in 1997. 

Grandfathering of existing permit applications also is addressed in the new rule. Traditionally, 40 C.F.R. §§ 

52.21(k)(1) and 51.166(k)(1) require that PSD permit applications include a demonstration that new 

major stationary sources and major modifications will not cause or contribute to a violation of any NAAQS that is 

in effect as of the date the PSD permit is issued. However, in this rule, EPA grandfathered existing permit 

applications from demonstrating compliance with the new NAAQS for PM2.5 if the (a) the application is 

determined to be complete by December 14, 2012, or (b) the public notice on the draft permit or preliminary 

determination is published before March 18, 2013 (the day the revised PM2.5 standards become effective). 

 http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/pdf/2012-30946.pdf 
7 

EPA did not Accurately Assess the Impact on MSW Landfills of Changing the GWPs 

EPA’s technical corrections recognize that two of the 42 subparts (Subparts W and HH), would bear the 

greatest adverse impact by the change in GWP. A detailed analysis of the cost and economic impacts is

included in EPA’s Impacts Analysis (docket ID No. EPA-HQ-OAR-2012-0934-0022). As described below, 

WM’s review of the Impacts Analysis indicates that EPA significantly underestimated both the number of

newly subject Subpart HH MSW Landfills and the added costs of compliance imposed by these changes 

on both new and existing reporters. 

First, the Impacts Analysis concludes that no closed landfills would be newly impacted by the change in 

GWP and therefore, no closed landfills are included in the cost impact analysis. It is unclear how EPA 

reached this conclusion. Based on a review of our MSW landfills, WM identified several closed landfills 

with methane generations between 21,000 and 24,999 metric tons/year CO2e that could exceed the 

threshold due to the proposed revision of the GWP for methane. Although emissions from these 

landfills are very low and will steadily decline, they would be pulled into the GHG MRR and required to 

report for at least three to five years. In addition, because they are closed, they do not generate 

revenue to offset new compliance costs, and would thus face a significant impact. This situation is also 

likely to arise for small municipalities that own closed facilities. 

Second, we find that EPA has underestimated the cost of complying with the reporting requirements 

under Subpart HH. Table 11 of the Technical Corrections and Tables 4-1 and 6-16 of the Impacts Analysis 

state the incremental annual cost impact for new Subpart HH reporters is $309,700 or $5,434 per facility 

for the initial year of reporting and $137,500 or $2,413 per site in subsequent years of reporting, in 2011 

US Dollars. Based on WM’s three years of reporting experience, the actual annual costs to comply with

the monitoring recordkeeping and reporting requirements are four to five times higher than EPA 

estimates. WM submitted data on ongoing reporting costs to EPA on October 1, 2012. These data 

showed that the annual cost per landfill for subsequent years of reporting was $11,412. This cost 

estimate does not include the cost of responding to EPA questions raised on facility reports that by rule 

require a facility to respond within 45 days, and if applicable, make corrections and re-submit reports. 

This cost can be significant depending on the nature of the EPA inquiry. EPA also did not account for this 

as part of its Impact Analysis. In our previous submission to EPA, we also noted that WM’s costs per site 

is likely to be lower than for smaller companies or even municipalities because as a large company, we

are able to take advantage of economies of scale in purchasing services and equipment. 

Third, EPA failed to recognize that revised GWPs will delay the date by which low-emitting MSW landfills 

can exit the reporting program. Subpart A of the GHG MRR includes provisions for facilities to exit the 

reporting program once actual emissions fall below the 25,000 CO2e threshold for five consecutive years 

(see 40 C.F.R. 98.2(i)). The Impacts Analysis estimates methane generation at a closed landfill decreases 

18% in 5 years, or 3.6% annually. However, an increase in GWP from 21 to 25 will increase modeled 

emissions by 20% and will therefore delay exit from the reporting program obligations by more than 5 

years. Most closed landfills that report under the GHG MRR, yet are near the exit threshold, are 

required to estimate actual emissions based on methane generation (Equation HH-5). This is the case 
8 

because the landfills cannot operate active gas collection and control systems without augmenting the 

system with fossil fuel (e.g., propane) because they produce such a low quantity of methane. These 

older, closed landfills, which are actually experiencing decreasing emissions, will be adversely affected 

by the GWP value change and will be trapped in the program for a significantly longer time. 

Fourth, the purpose of the change in GWP is to align with global inventory practices, not to broaden 

applicability of the GHG MRR. In the Preamble to the technical corrections EPA clearly states, “The 

changes are being proposed for two reasons.....to ensure consistency with the Inventory as the 

Inventory begins to use GWPs from the IPCC Fourth Assessment Report. Second, we propose to add 

GWPs for F-GHGs that are not currently included in Table A-1...” (78 FR 19807). 

Adding new reporters or delaying exit for existing reporters is not the intent of changing the GWP; yet 

the collateral damage is significant for MSW Landfills. The methane emissions at MSW landfills have not 

changed. No physical or operational changes have occurred at the MSW Landfills. The change in GWP 

is simply a change in calculation; a change, nonetheless, that significantly impacts GHG MRR applicability 

for Subpart HH reporters. 

Both the technical corrections package and the Impacts Analysis conclude that the change in GWP will 

not affect the cost of monitoring and recordkeeping and would not materially affect the cost for 

calculating emissions. This is incorrect. Such delay does have a direct financial impact for these 

facilities. Closed landfills do not generate revenue, yet these facilities will incur additional annual 

compliance monitoring, recordkeeping and reporting costs solely due to the change in GWP. 

WM’s Recommendations: 

For the reasons previously described, WM does not support EPA’s proposal to apply the revised GWPs 

retroactively to previously submitted reports under the GHG MRR. If the Agency determines that some 

level of time series consistency is necessary; however, WM urges the Agency to recalculate emissions 

for whole sectors (e.g., MSW landfills reporting under Subpart HH) rather than recalculating individual 

facility emissions. The newly recalculated emissions for aggregated sectors would more closely align 

with the national emissions inventory and would mitigate potential adverse regulatory complications. 

WM also does not support the expansion of applicability that will occur in the MSW Landfill sector due

to the revision of the GWP for methane, and we note that there are other sectors (e.g., Subpart FF: 

Underground Coal Mines, Subpart NN: Natural Gas) that are not facing this issue because their 

applicability threshold is not based on CO2e emissions. Requiring reporting from more very small 

landfills and requiring other very small closed landfills to continue reporting is costly and has limited 

policy relevance. We further note that the applicability determination for MSW Landfills is already 

based on the methane generation level, which was converted to tons CO2e. Emissions of CO2 from 

combustion have never been considered in determining applicability under the rule. 
9 

Given the increased cost and limited utility of these “side effects” of revising the GWPs, we recommend 

that that EPA establish both a methane-based reporting threshold for Subpart HH to replace the CO2e 

based reporting threshold, and a methane-based requirement for exiting the program. As noted below, 

these changes are easily implemented by simply establishing a methane reporting threshold of 1190 

metric tons/year or more and by adding new language to clarify off-ramp provisions for both the fiveyear exit threshold (1190 metric tons CH4) and the three-year exit threshold ( 714 tons metric tons CH4). 

EPA could modify language in both “TABLE A-3 to Subpart A of Part 98 – Source Category List for § 98.2( 

a )(1) – Source CategoriesaApplicable in 2010 and Future Years” and Subpart HH, § 98.341as follows: 

TABLE A-3 to Subpart A of Part 98 Source Category List for § 98.2( a )(1)

Source Category List for §98.2(a)(1)

Source Categoriesa Applicable in 2010 and Future Years 

“Municipal solid waste landfills that generate CH4 in amounts equivalent to 25,000 1190 metric tons 

CO2e or more per year, as determined according to subpart HH of this part. 

As for exiting the program requirements, amend Section 98.341 as follows: 

§98.341 Reporting Threshold 

(a) You must report GHG emissions under this subpart if your facility contains a MSW landfill 

and the facility meets the requirements of §98.2(a)(1), except as provided for in (1) or (2) below. 

 (1) If reported emissions are less than 1190 metric tons CH4 per year for five consecutive years, 

then the owner or operator may discontinue complying with this part provided that the owner or 

operator submits a notification to the Administrator that announces the cessation of reporting 

and explains the reasons for the reduction in emissions. The notification shall be submitted no 

later than March 31 of the year immediately following the fifth consecutive year of emissions less 

than 1190 metric tons methane per year. The owner or operator must maintain the 

corresponding records required under §98.3(g) for each of the five consecutive years and retain 

such records for three years following the year that reporting was discontinued. Unless the 

facility is no longer accepting waste, the owner or operator must resume reporting if annual 

emissions in any future calendar year increase to 1190 metric tons methane per year or more. 

 (2) If reported emissions are less than 714 metric tons CH4 per year for three consecutive years 

then the owner or operator may discontinue complying with this part provided that the owner or 

operator submits a notification to the Administrator that announces the cessation of reporting 

and explains the reasons for the reduction in emissions. The notification shall be submitted no 

later than March 31 of the year immediately following the third consecutive year of emissions 

less than 714 metric tons methane per year for Subpart HH. The owner or operator must 

maintain the corresponding records required under §98.3(g) for each of the three consecutive 

years and retain such records for three years following the year that reporting was discontinued. 
10 

Unless the facility is no longer accepting waste, the owner or operator must resume reporting if 

annual emissions in any future calendar year increase to 1190 metric tons methane per year or 

more. 

Subpart HH facilities would still calculate and report methane as well as CO2e emissions for EPA 

inventory purposes but rule applicability and program exit provisions would be based upon methane 

emissions – not CO2e. The proposed exit provisions do not consider ancillary Subpart C anthropogenic 

emissions because MSW Landfills that meet the exit provisions are very small and primarily closed 

landfills, and they do not operate Subpart C devices. Subpart C emissions are either non-existent or at 

such negligible amount that by including these emissions would not prevent a Subpart HH facility from 

exiting the program. Therefore, we believe reporters will not exit the program prematurely due to 

exclusion of Subpart C anthropogenic emissions. 

The methane based reporting threshold allows the Agency to avoid increasing the reporting program 

burden for the MSW landfill sector and EPA staff. It would also prevent subjecting additional small and 

primarily closed landfills with negligible emissions to reporting requirements and new compliance costs. 

Existing reporters will not be delayed five additional years or more from exiting the reporting program. 

It also allows EPA to meet national and global inventory program commitments without needlessly 

affecting GHG MRR applicability. 

Subpart C - Stationary Fuel Combustion 

WM Supports Revised High Heat Value (HHV) and Emission Factor revisions for Landfill Gas and Other 

Biomass Gases 

WM supports proposed changes to HHV for landfill gas and establishment of HHV and emission factor 

for “other biomass gases.” The proposed changes more accurately reflect methane concentration of the 

two fuel types. 

EPA Should Base Any Revisions to the Default Factor for Biogenic CO2 Emissions from MSW 

Combustion on Actual Biogenic Fractions Reported by Industry 

EPA should not revise the default biogenic CO2 emissions factor for MSW combustion based on the 

questionable CO2 emission factor estimate derived in the “Review and Evaluation of 40 C.F.R. 98 CO2

Emission Factors for EPW07072 TO 45”(in Docket ID EPA_HQ-OAR-2012-0934). The analysis premises a 

change to a lower biogenic fraction based on the supposition that the composition of MSW has changed 

significantly since the mid-1990s when the current biogenic emission factor of 0.60 or 60 percent was 

developed. However, the Agency analysis offers no data to support that supposition. Furthermore, EPA

is now in possession of far more robust data upon which to base an analysis of the suitability of the 

existing biogenic emission factor used for the GHG MRR. The Agency should use the actual biogenic CO2

fractions reported by all municipal waste combustors (MWCs) for the first three years of the GHG 
11 

reporting program (2010-2012). We understand that the Agency did not have this information available 

to it until this year as reporting of the biogenic CO2 emission fractions was deferred. However, this 

information is now available to EPA and provides a far more scientifically defensible basis for making a 

proposed change, or for validating the existing factor. WM recommends these data be used to evaluate,

and if appropriate, revise the default biogenic CO2 emission factor in 40 C.F.R. 98.33. 

WM’s 17 WTE facilities have collected and analyzed over 238 quarterly CO2 samples to determine the 

biogenic CO2 fraction using ASTM Test Methods D7459-8 and D6866-08. With national data for the 

entire fleet of MWC facilities, EPA should have a thousand or more biogenic CO2 fraction results 

reported for the last three years. These data will provide ample basis for the Agency to evaluate the

need to revise the biogenic fraction for MSW. 

WM Wheelabrator facilities’ annual average biogenic CO2 fractions are provided in the table below. 

These data verify that average biogenic CO2 fractions for MSW combustion are well above the 0.55 

(55%) default value proposed by EPA. Analysis of WM’s reported data and that of the other MWCs may 

support an increased default emission factor above the current default value of 0.60 (60%). 

We also strongly recommend that EPA incorporate use of the latest version of the ASTM test method for 

GHG reporting. The rule references ASTM Test Method D6866-08 in 40 C.F.R. 98.34 (d) for determining 

biogenic CO2 fraction. This version is outdated by two years. The ASTM D6866 method was revised in 

2010 (the first GHG reporting year) to incorporate a new correction factor used to account for excess 

radioisotope C14 in the atmosphere from thermo-nuclear testing. In 2008, this correction factor was 

0.93. In 2010, the correction factor was revised to 0.95 in ASTM D6866-10. Using the most up-to-date

method, the actual biogenic CO2 fractions for WM’s MWCs (and the national fleet) would be higher for 

all three reporting years by 1% absolute as shown in the table below. To ensure accurate biogenic CO2

fractions are reported in future GHG reporting years, 40 C.F.R. 98.34 (d) should be revised to reference 

ASTM D6866-10 or “latest version.” This would allow the latest improvements in radio-dating of CO2 to 

determine biogenic CO2 to be automatically incorporated without a requisite rule revision. 

 
12 

WM Biogenic CO2 Fraction Summary 

Plant State 2010 2011 2012 

Concord NH 60% 55% 57% 

Claremont NH 59% 58% 56% 

Millbury MA 62% 60% 58% 

No Andover MA 61% 61% 60% 

Saugus MA 62% 60% 59% 

Bridgeport CT 64% 63% 62% 

Lisbon CT 61% 60% 58% 

Hudson Falls NY 64% 59% 59% 

Westchester NY 63% 63% 60% 

Falls PA 63% 61% 60% 

Gloucester NJ 62% 62% 59% 

Baltimore MD 62% 63% 61% 

Portsmouth VA 66% 62% 63% 

So Broward FLA 65% 63% 61% 

No Broward FLA 63% 63% 58% 

McKay Bay FLA 64% 63% 63% 

 64% 63% 61% 

Spokane WA 61% 61% 60% 

Mean All 62% 61% 60% 

ASTM D6866-10 64% 62% 61% 

Subpart HH – MSW Landfills 

WM Supports the Proposal to Replace the Default Methane Oxidation Value with a Determination 

Based on Site-Specific Data 

WM commends the Agency for proposing technical corrections to Subpart HH that reflect the sitespecific influences affecting emissions of methane at MSW landfills. EPA’s proposal to replace the 

default, methane oxidation fraction of 10 percent with a more refined determination using site-specific 

data, will improve the accuracy of landfill emissions estimates. The Agency’s proposal to establish 

categorical values for methane oxidation based on each site’s methane flux rate is well supported by the 

extensive peer-reviewed data provided by public and private organizations in the landfill sector. We 

appreciate EPA’s careful review of the technical literature and field studies to develop and propose 

values for methane oxidation in landfill cover that more correctly reflect actual field measurements. 

This will allow for greater accuracy in estimating landfill emissions than will continued use of a national 

default. 
13 

The EPA’s Proposal to Revise the Methane Oxidation Factor is Well Supported by Peer-Reviewed 

Science: 

Numerous studies have been conducted worldwide and referenced in the scientific literature that 

address and document methane oxidation in cover soils, as well as gas collection efficiency. In 2009,

The Journal of Environmental Quality published a comprehensive literature review16. The paper 

references over 60 technical documents dating from 1960 to the present, with the majority of the 

papers being published in the 1990s and 2000s. Overall, based on review of 42 determinations of the 

fraction of methane oxidized in a variety of soil types and landfill covers, the mean fraction of methane 

oxidized across all studies was 36 percent with a standard error of 6 percent. For a subset of 15 studies 

conducted over an annual cycle, the fraction of methane oxidized ranged from 11 percent to 89 percent 

with a mean value of 35 percent + 6 percent, nearly identical to the overall mean. 

In July 2007, the Solid Waste Industry for Climate Solutions (SWICS) released its first white paper titled 

Current MSW Industry Position and State-of-the-Practice on LFG Collection Efficiency, Methane 

Oxidation, and Carbon Sequestration in Landfills (White Paper). The public and private members of 

SWICS shared the White Paper with EPA as it developed the GHG MRR requirements for evaluating and 

reporting MSW landfill emissions. In January 2009, SWICS updated the White Paper to incorporate 

additional studies noted above. 

Since the release of the 2009 White Paper, a number of studies have been published in peer-reviewed 

literature, most notably an entire special issue of the journal Waste Management (2011) on Landfill Gas 

Emission and Mitigation sponsored by Consortium for Landfill Emissions Abatement Research (CLEAR). 

CLEAR is an International Waste Working Group (IWWG) Task Group, which focuses on landfill gas 

emission to the atmosphere. The group has members from 12 countries, across four continents. A 

number of papers in the special issue focus on the use of compost biocovers, bio-windows or permeable 

gas dispersion layers to treat and oxidize landfill gas in situ (Huber-Humer et al., 2011; Pedersen et al., 

2011; Scheutz et al., 2011; Pawlowska et al., 2011; Dever et al., 2011; and Jung et al., 2011). 

Additionally, several papers in the special issue, Ranchor et al., (2011); Abichou et al., (2011) and 

Chanton et al., (2011b), examined the response of the methane oxidizing microbial community to 

methane loading to the cover soil. Two key papers, Bogner et al., (2011), and Spokas et al., (2011), 

describe recent work in California where field measurements of emission and oxidation were coupled 

with extensive modeling efforts. Chanton et al., (2011a) published the results of 37 seasonal sampling 

events at 20 landfills with intermediate covers over a four-year period. Abichou et al. (2011b) examined 

the best approach towards describing central tendencies in oxidation data and reported that the results 

were generally distributed normally so that mean values could be used. 

 

16 Chanton, J.P, D.K. Powelson, and R. Green. 2009. Methane Oxidation in Landfill Cover Soils, is a 10% Default 

Value Reasonable?. Journal of Environmental Quality, 38:654-663. 
14 

In November 2012 SWICS, with the participation of Dr. Jeffrey Chanton of Florida State University and 

Dr. Morton Barlaz of North Carolina State University, finalized an addendum (2012 Addendum) to the 

Methane Oxidation section of the 2009 White Paper. The 2012 Addendum includes methane oxidation 

results from evaluations of 90 landfills as compared to the 47 published evaluations available in 2009. 

This 2012 Addendum also addresses the comments and questions EPA raised in its Response to 

Comments to the GHG MRR Final Rule issued October 20, 2009 (74 FR 56260): 

First, EPA questioned the decision to calculate oxidation values using the arithmetic means as opposed

to the median values from the array of studies, because it appeared that the means might be biased 

high. A more thorough discussion of this issue and inclusion of more recent literature are included in 

the 2012 Addendum, and both median and mean values are provided. 

Second, EPA expressed some concern regarding the possible over-reliance on laboratory studies, which 

tend to yield higher oxidation fractions. Since release of the 2009 White Paper, governmental, academic 

and private researchers have made a significant number of additional field measurements, and these 

results are included in the addendum. 

Third, EPA noted that only five field measurements for clay soils were available during development of

the 2009 White Paper. Since then, significant effort has been made to measure methane oxidation at 

landfills with clay soils; the 2012 Addendum incorporates the results of 31 field studies. 

Fourth, the 2012 Addendum addresses the variation in methane oxidation with the methane emission 

rate. 

In reviewing and incorporating the results of these peer-reviewed studies of landfill methane oxidation, 

the 2012 Addendum updated the 2009 White Paper results as follows: 

1. Clay cover: The number of studies in clay cover increased from five in 2009 to 31 in 2012. The 

mean fraction of methane oxidized increased from 18 percent to 30 percent, while the median 

fraction oxidized increased from 14 to 29 percent. 

2. Sandy soils cover: The number of studies in sandy soils doubled from eight to 16, with the mean 

oxidation value changing very little (55 to 54 percent) while the median value increased from 43 

to 50 percent methane oxidized. 

3. “Other” covers: The number of studies in “other” cover soils increased by nine and both the 

mean and the median fraction oxidized values increased slightly. 

4. The overall mean oxidation value across all of the studies increased from 35 to 38 percent while 

the overall median oxidation fraction increased from 31 to 33 percent. 

The SWICS 2012 Addendum Definitively Supports a Significant Increase to the Current Default Value of 

Ten Percent: 
15 

The 2012 Addendum concluded that the EPA default oxidation value of 10 percent underestimates 

typical methane oxidation and is not representative of expected methane oxidation at sites utilizing 

organic, clay, sand or other cover types. EPA derived the default value from one field study performed 

at one poorly maintained landfill with no gas collection system, Czepiel et al17. Analysis of the 90 studies 

highlighted in the 2012 Addendum indicates that if a single value is considered for methane oxidation it 

should be between 33 and 38 percent. 

The 2012 Addendum also examined methane oxidation as a function of methane loading to the cover 

layer of the landfill. Recent studies show that the percent oxidation is an inverse function of the rate of 

emission (Stern et al.,2007; Rachor et al., 2011; Chanton et al., 2011a,b). At lower emission rates, the 

methanotrophs in the soil cover can consume a larger portion of the methane delivered to them, 

potentially oxidizing 95 to 100 percent (Humer and Lechner, 1999, 2001a, Huber-Humer 2008; Powelson 

et al., 2006, 2007; Kjeldsen et al., 1997). As flux rates increase, the percent oxidation decreases and the 

methanotrophs can become overwhelmed with methane. Thus, as methane emission increases, 

percent oxidation decreases (Powelson et al., 2006, 2007). 

A mathematical model of cover oxidation developed by Dr. Tarek Abichou of Florida State 

University (Abichou et al., 2010), demonstrates that at lower methane fluxes, oxidation rates 

are equal to the methane loading to the soil cover. Oxidation keeps pace with flux, and the soil 

cover is able to oxidize all of the methane coming from below. At lower loading rates, methane 

oxidation is equal to 100 percent. As flux increases, the cover is not able to oxidize all of the 

incoming methane, and the percent oxidation falls off. Therefore, percent oxidation starts to 

decrease as the methane loading to the cover increases. This relationship is shown clearly in 

the laboratory column studies of Rachor et al., (2011). Field studies have also confirmed this 

relationship between methane flux and percent oxidation (Chanton et al., 2011a,b). At low 

rates of methane emission, the percent oxidation is near 100 percent. As emission rates 

increase, the percent oxidation decreases. This analysis serves to support the approach that 

EPA is proposing for determining a more accurate methane oxidation fraction by calculating 

the methane flux rate for the landfill. 

In addition to the 2012 Addendum, the landfill sector provided data for 262 private and public 

landfills reporting under Subpart HH. The dataset allowed the Agency to evaluate several 

possible options for determining more accurate methane oxidation fractions. The data 

conclusively showed that the average oxidation fractions for different soil cover types are all 

well above the default 10 percent value required by Subpart HH, and underpin the need for a 

revised default value or more refined method for determining an oxidation fraction at a site. 

WM strongly supports EPA’s proposal to allow reporters to determine methane oxidation by 

calculating the methane flux rate on a site-specific basis.. 

 

17 Czepiel, P.M., B. Mosher, P.M Crill, and R.C Harriss. 1996. Quantifying the effect of oxidation on landfill methane 

emissions. J. Geophys. Res. 101:16711-16719. 
16 

WM Strongly Supports the Proposal to Require Monthly Monitoring of Methane 

EPA’s proposal to change the frequency of monitoring from weekly to monthly will reduce 

burden for reporters without any loss of data reliability or accuracy, and properly aligns the 

GHG reporting requirements with the federal and state operating performance standards for 

MSW landfills (Subpart WWW, 40 C.F.R. 60.756(a)). 

WM strongly supports the Agency’s proposal to require methane monitoring on a monthly rather than a 

weekly basis. The landfill sector provided EPA with 2011 reporting year methane monitoring data for 

395 landfills (296 active and 99 closed). EPA evaluated the data and concluded that shifting from weekly 

to monthly measurement frequency would increase uncertainty of reported methane recovery values 

for a single landfill by only 2.5 percent with no significant bias. The uncertainty for the nationwide total 

of reported methane recovery for the sector would increase only 0.1 percent. Thus, the Agency’s 

analysis of the extensive database definitively supports its proposal to reduce the frequency of 

methane monitoring. The proposal will greatly reduce the cost and burden associated with reporting, 

while maintaining sufficiently reliable and accurate data. 

The Agency Should Eliminate the Requirement that Monthly Methane Measurements be Made 

Fourteen Days Apart 

As noted above, WM strongly supports the Agency’s proposal to require methane monitoring 

on a monthly rather than weekly basis. The proposed monitoring frequency will significantly 

reduce the cost and burden for reporters while maintaining the same level of reporting 

accuracy and reliability. However, we recommend that the wording of §98.343(b)(2)(ii) and (iii) 

be modified to eliminate the stipulation that monthly measurements (of methane, temperature 

and pressure) be at least fourteen days apart. This creates unnecessary complexity to what 

should be a simple requirement to monitor LFG each calendar month. 

First, EPA’s analysis of three years of data provided for 395 landfills showed that there is very 

little variability in methane concentration across either weekly or monthly measurements. A 

requirement for a fourteen-day period between measurements is pointless. 

Second, qualified personnel properly trained in instrument calibration, sample measurement, 

and documentation procedures must be used to collect the readings for QA purposes. The 

fourteen-day limitation significantly and unnecessarily complicates scheduling of required 

personnel, particularly for control devices that operate intermittently (a common occurrence). 

Third, for destruction devices that operate only intermittently (a common occurrence), it may 

not be possible to take a monthly reading at least fourteen days apart due to the operating 

schedule of the device. For example, if a device only operates for several days at the end of 

one month and the beginning of the next month, it would be impossible to acquire a reading 

for each month at least 14 days apart. 
17 

We therefore recommend removing the following phrase from §98.343(b)(2)(ii) and (iii): 

If only one measurement is made each calendar month, there must be at least fourteen days 

between measurements. 

The Agency should Remove References to “Back-up Flare or Similar Device” from the Definition of fDest, 

n

The proposed revised definition of fDest,n for Equations HH-6 and HH-8 includes a special provision when 

gas is destroyed in a “back-up flare (or similar device).” This distinction is an artifact of the original rule 

and is no longer necessary because the proposed revisions to HH-6 and HH-8 properly account for 

multiple control devices regardless of the amount of time any given control device operates during the

year, or whether it is considered a primary or backup device. WM recommends simply deleting “is 

destroyed in a back-up flare (or similar device) or if the gas is” from the definition of FDest, n. 

The Agency Should Clarify the Rule with a Technical Correction to the Bulk MSW DOC Value in Table 

HH-1 

Earlier this year, EPA released a helpful Frequently Asked Question (FAQ) and response that clarified 

reporter’s ability to use a more precise approach for choosing appropriate DOC value for various types

of waste streams disposed at the facility in addition to bulk MSW (FAQ 744). The Agency clarified that 

sites that receive separate inert waste shipments, may use the appropriate DOC value for those waste 

streams listed in Table HH-1 under the “Waste composition option.” At the same time, reporters may 

select the appropriate DOC value for bulk waste (0.2) found under the “Bulk waste option” section of 

Table HH-1 for shipments of bulk MSW. 

We agree with the interpretation presented by this FAQ and request that the EPA formalize this FAQ 

response by adding the bulk waste DOC value of 0.2 to the list of various wastes under the “Waste 

composition option” section of the Table HH-1. 

WM Recommends the Agency Not Revise Equation HH-1 to Incorporate a DOC that Varies by Year in 

which Waste is Placed 

In the preamble to the draft technical corrections, the EPA notes that the DOC variable is intended to be 

a function of the year waste is placed in the landfill. As currently written, the DOC term is a function of 

the waste type, and is not a function of the disposal year. The Agency requests comment on the need to 

revise Equation HH-1 and the definition of DOC to allow DOC to be a different value for different years 

that a waste is placed in the landfill. 

While it may be possible to revise Equation HH-1 to use a DOC which varies by year, we believe the 

practice would be far too cumbersome to be practical. In theory, such a model would work in a manner 
18 

similar to the current Waste Composition method, which has multiple DOC factors. The eight model 

results are then summed to determine total methane generation. In theory, the same approach would 

work for multiple DOC factors, but the practice would become arduous. Each model for each DOC 

would have to be retained for all subsequent reporting years. If only one DOC is used each year, a 

facility is still required to maintain 10 models after 10 years of reporting. If a facility determines DOC for 

multiple streams of waste, the burden will only increase. In the case of landfills projecting closure

decades in the future, the burden of maintaining potentially hundreds of models would be vast. 

Waste Management appreciates the opportunity to provide you with our comments and 

recommendations, and we look forward to continuing to work with you as you finalize revisions to the 

GHG MRR. Should you have any questions about these comments, please feel free to call me at 202-

639-1218 or e-mail me at kkelly5@wm.com. 

Sincerely, 

Kerry Kelly, Director 

Federal Public & Regulatory Affairs 

cc: Rachel Schmel
Appendix B 

Summary of Select State-Level Regulatory Requirements 

for Thickness of Intermediate Cover 

State Minimum 

Intermediate 

Cover Thickness 

(inches) 

 Number of 

Landfills 

Pertinent 

Regulatory 

Citation(s) 

Arkansas* 12 18 ARK. CODE R.§ 22.413(c) 

California 12 113 CAL. CODE REGS. tit. 27, § 20700(a) 

Colorado 12 21 6 COLO. CODE REGS. § 1007-2. 1.2, 2.1.10 

Florida 12 51 FLA. ADMIN. CODE ANN. r. 62-

701.200(55), 62-701.500(7)(g) 

Georgia 12 52 GA. COMP. R. & REGS. 381-3-4.07(3)(g) 

Illinois 12 63 ILL. ADMIN. CODE tit. 35, § 807.305(b) 

Indiana 12 34 329 IND. ADMIN. CODE 10-20-14(f) 

Kansas 12 15 KAN. ADMIN. REGS. § 28-29-108(c)(1) 

Kentucky* 12 25 401 KY. ADMIN. REGS § 48:090(2) 

Maine 18 4 06-096-401 ME. CODE R. § 4(C)(8)(b) 

Michigan* 12 52 MICH. ADMIN. CODE r. 299.4429(6) 

Minnesota 12 16 MINN. R. § 7035.2815(B) 

Mississippi 12 16 APPLICATION FOR PERMIT OF A NEW OR 

EXPANDED MUNICIPAL SOLID WASTE 

LANDFILL; MISSISSIPPI DEPARTMENT OF 

ENVIRONMENTAL QUALITY AT §8(11) 

Missouri* 12 24 MO. CODE REGS. ANN. tit.10 § 80-
State Minimum 

Intermediate 

Cover Thickness 

(inches) 

 Number of 

Landfills 

Pertinent 

Regulatory 

Citation(s) 

3.010(17)(C)(2)

Montana 12 9 MONT. CODE ANN. § 17.50.1104(2)(c) 

New Jersey 12 20 N.J. ADMIN. CODE § 7:26-1.4, 2A.8(B)(10)

New Mexico 12 8 N.M. CODE R. § 20.9.5.9(O) 

New York 12 37 N.Y. COMP. CODES R. & REGS. tit. 6, §

360-1.2(91), 360-2.17(d)

North 

Carolina 

12 42 13B NC. ADMIN. CODE 

§ 0500.0505(3)(b), 1600.1626(2)(c) 

Ohio 12 51 OHIO ADMIN. CODE 3745:27-19(G)(2) 

Oklahoma* 18 26 OKLA. ADMIN. CODE § 252:515-19-52(a) 

Pennsylvania 12 48 25 PA. CODE § 273.233 (c)(1) 

South 

Carolina 

12 22 S.C. CODE ANN. REGS. 61-

107.19(E)(7) 

Tennessee 12 29 TENN. COMP. R. & REGS. 0400-11-01-.04

(6)(a)(4) 

Texas 12 96 30 TEX. ADMIN. CODE § 330.165(c) 

Virginia* 12 41 9 VA. ADMIN. CODE § 20-81-140(B)(1)(d) 

 

Wyoming* 18 2 WYO. CODE R. § CH. 2, SEC. 5(r) 

*Includes daily cover 

Total Number of Landfills: 935 

Percentage of GHG Reporting Landfills: 76.82% (935 out of 1217)