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September 4, 2009

Via Electronic Transmission: ward.hillary@epa.gov

Ms. Hillary Ward, Project Manager

Coatings and Chemicals Group

Mail Code (E-14301)

109 T.W. Alexander Drive

Research Triangle Park, NC 27711

Dear Hillary,

Thank you for including Waste Management (WM) in the August 18, 2009 multi-stakeholder meeting 

to discuss municipal solid waste (MSW) landfill issues. We appreciated being a part of the 

conversation and look forward to continuing the dialogue with you and the other stakeholders as the 

Agency determines its approach to reviewing the New Source Standards of Performance (NSPS), 

Emission Guidelines (EG), and National Emission Standards for Hazardous Air Pollutants (NESHAP) 

for MSW landfills. We wanted to follow up by sharing some of our thoughts about the agenda topics 

discussed, as well as our recommendations for steps EPA could take to reduce impediments to 

developing more landfill gas beneficial use projects.

We have carefully reviewed the Environmental Defense Fund’s (EDF) Notice of Intent to file suit

regarding review of the NSPS/EG for MSW landfills, and disagree with several of the group’s 

assertions. First, the NSPS/EG does not need to be amended to address methane emissions -- it 

already does so. As stated on page 2-67 of the Background Information for Final Standards and 

Guidelines for MSW Landfills (BID), “The pollutant to be regulated, MSW landfill emissions, or LFG, 

is composed of methane, CO2, and NMOC. EPA selected NMOC as a surrogate for determination of 

control because NMOC includes those LFG constituents of most concern.” When EPA promulgated 

the NSPS/EG, the Agency stated that it considered promulgation of the rule to be an important 

component of the U.S. Climate Action Plan because of its significant reductions of greenhouse gases 

(GHG) (BID pg 1-64), and EPA calculated the additional benefits of methane reductions (37% and 

39% for NSPS and EG respectively) in the preamble and BID. The success of the rule has been 

demonstrated by the significant declines in methane emissions from MSW landfills as documented in 

EPA’s U.S. Greenhouse Gas Inventory – over 11 percent since 1990. MSW landfills are one of the 

only sectors that can claim direct GHG emissions reductions of this magnitude.1

 

1 EPA has readily available and recently published information on the efficacy of the Landfill NSPS standards with respect 

to methane emissions and other pollutants and has discretion to determine, pursuant to section 111(b) of the Clean Air Act, 

that eight year review is not appropriate for new sources. The Clean Air Act does not mandate eight year review for 

existing sources. See CAA Section 111(d).
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Second, WM disagrees with EDF’s assertion that “the current standard no longer reflects BDT.” 

The current standard recognizes combustion of collected LFG in either flares, turbines, engines or 

other combustion devices capable of reducing NMOC by 98% as best demonstrated technology (BDT). 

That was the case when the rule was promulgated, and it remains the case today. Moreover, we think 

EPA appropriately mandated the 98% performance standard without dictating the control technology 

in recognition that the feasibility of energy recovery through LFG combustion must be evaluated on a 

site-specific basis. Indeed, EPA performed the precise analysis EDF now suggests it perform when it 

promulgated the rule, and concluded that the use of energy recovery should be a site specific decision. 

In the BID EPA stated:

...EPA continues to believe that the use of energy recovery should be a site-specific 

decision. Such a decision should be made after the landfill owner or operator considers

the potential for income from energy utilization given the uncertainty in the amount of 

gas produced. Many other variables come into play when considering energy recovery, 

such as gas market fluctuations, gas production rates, ability to market or distribute 

electricity produced, and the quality of the gas. Not all energy recovery ventures from 

landfill gas have been successful in the past. Technical difficulties vary from site to site 

and may include such barriers as the gas being unfit for recovery because of noncombustible components or an insufficient flow rate to maintain dependable operation 

of equipment. On the other hand, some landfills may generate adequate volumes of 

clean burning gas that would make energy recovery profitable. For these reasons, the 

EPA is strongly encouraging, but not mandating, energy recovery within these 

standards.

BID at 1-29.

2

 

EPA, the Congress and states have clearly encouraged energy recovery projects through the use of tax 

credits, renewable portfolio standards, and partnerships and technical assistance provided through such 

programs as LMOP and Methane to Markets. Their success speaks for itself. By the end of this year,

WM will have increased its 2002 renewable energy production from LFG by 80 percent (expanding 

from 325 megawatts to 585 megawatts). In late 2007, our Chairman and CEO announced WM’s goal 

to double its renewable energy production by 2020, with an interim goal of an additional 50 landfill 

gas-to-energy projects by 2012.

Rather than mandating LFGTE as the only or primary BDT, EPA should work towards 

removing current barriers to energy recovery projects. Those barriers include: lack of clearlydefined compliance responsibilities at multi-party energy recovery project sites; overly stringent 

“common control” determinations; EPA’s 2006 proposed definition of LFG treatment; unnecessarily 

stringent interpretation of NSR; unsupported recent NSPS and MACTs for turbines and engines; and

EPA’s erroneous guidance on SSM post-Sierra Club case, which we will work to address with the 

Office of Enforcement and Compliance Assistance.

 

2

 EPA makes similar statements re site specific factors that must play into the individual landfill’s decision to use energy 

recovery technology in at least five other places in the BID. See BID at 2-80 to 81, 2-98, 2-103, 2-189, 2-193.
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We were pleased to hear that EPA is considering finalizing some portions of its 2006 proposed 

revisions to the NSPS on a faster schedule, followed by longer-term review of the NSPS/EG and the 

residual risk/technical review of the NESHAP. WM’s experience in developing energy recovery 

projects at landfills demonstrates that a lack of clearly defined compliance responsibilities at multiparty sites and overly stringent “common control” determinations remain as significant barriers

(or otherwise create disincentives or limiting factors with respect to such energy projects). We 

strongly recommend that EPA address these issues sooner rather than later; however, we would 

not advocate for a “quick fix” if the result will be detrimental to further energy recovery 

projects. 

Compliance Responsibilities:

In a letter dated November 7, 2006 on the proposed NSPS Rules (Docket ID No. EPA-HQ-OAR-2003-

0215), WM outlined detailed comments on the need to clarify compliance obligations among various 

parties exercising operational control over the following activities:

(1) landfilling, which includes cell and liner construction, waste deposition, leachate 

collection, cover maintenance, etc.; 

(2) gas collection, which includes operation and maintenance of the gas collection 

system, including monitoring activities, and wellfield adjustments and expansions; 

(3) control of collected landfill gas, which may include the combustion of untreated 

landfill gas in a control device such as an open or enclosed flare, or as fuel in a 

combustion device such as a boiler, process heater, or prime mover for power 

generation; and 

(4) treatment for subsequent sale or use as fuel for combustion. 

Common Control:

WM also raised concerns that the 2006 proposed rule failed to squarely address the “common control” 

issues raised by regulatory agencies under Title V and New Source Review permitting decisions that 

have determined that two facilities located on contiguous or adjacent parcels of land may be treated as 

a single facility for air permitting purposes. WM proposed that EPA clarify in its final rulemaking that 

separately owned landfill gas control and/or treatment operations should not be considered to be under 

“common control” of the landfill owner/operator.3 

WM proposed for the EPA’s consideration, specific suggested revisions to regulatory language, and 

we direct you to pages 9-13 of our November 2006 comments letter. The suggested revisions were 

intended to accomplish the following: (1) define a separate class of parties engaged in the treatment 

and/or combustion of landfill gas, either on-site or off-site, that will bear compliance responsibility 

under the Landfill NSPS; and (2) create an option by which a landfill owner/operator may transfer 

compliance responsibilities to a collection, control or treatment system owner/operator, consistent with 

the parties’ contractual provisions, through a certification procedure. These clarifications to the 

Proposed Rulemaking would narrowly prescribe the circumstances under which compliance 

responsibility may transfer to a third party under the Landfill NSPS, yet would provide landfill 

 

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 This is particularly true when the landfill can operate independently from a renewable energy recovery project (e.g. the 

landfill has full control equipment backup capacity and economic independence from the third party energy project).
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owners/operators with meaningful opportunities and flexibility to maximize the value of beneficial use 

projects involving landfill gas. 

At the meeting on August 18, Rick Vetter, from EPA’s Office of General Counsel, expressed his 

opinion that “common control” determinations are mostly made by the states. While this is true in the 

first instance, EPA is frequently consulted on these decisions or reviews such decisions in the Title V 

permit review and other contexts. In that regard, EPA has been very aggressive in overruling such 

state determinations. For example, in the case of the Al Turi Landfill in New York, NYSDEC 

determined that the landfill and the gas-to-energy facility owned by another party were two sources for 

purposes of Title V permitting. EPA formally reversed that determination and directed DEC to treat 

the two companies as one source.4 

Then, following the Al Turi determination, EPA Region 2 required NYSDEC to provide it with a table 

listing all landfills in the state that were subject to landfill gas collection and control requirements of 

New York law or the NSPS, and to provide the name of each entity involved in landfill gas collection 

and subsequent destruction, treatment, and/or use, post-collection units (flares, engines, etc.), the Title 

V permits issued to cover collection and post-collection operations, as well as a schedule for making 

“common control” decisions at each site.5 EPA candidly admitted that this was “a substantial 

undertaking.” And indeed, it was. More importantly, this demonstrates that EPA has taken an active 

role in enforcing its interpretation of what constitutes common control. 

EPA’s active role in enforcing increasingly stringent interpretations in the common control area is 

demonstrated in the very recent decision regarding Ocean County Landfill in New Jersey.6 There, 

EPA ignored the fact that the landfill had complete landfill gas destruction capacity – and was 

therefore functionally independent of the third party gas to energy plant. Similarly, the landfill had 

economic independence/business viability without need of the energy recovery plant. Instead, EPA 

referenced “joint and several liability” and found “common control” based on (i) fuel 

reliance/dependence of renewable energy facility on landfill, (ii) anti-assignment provisions of 

ownership and (iii) prior sharing of tax credits.

One-sided reliance by a separately owned and operated renewable energy facility on the landfill should 

not establish common control, in situations in which the landfill is economically viable and can operate 

in a manner that is operationally independent of the third party energy recovery plant.7 To so hold is 

 

4

 Letter from Jane M. Kenny, Regional Administrator, EPA Region 2 to NYSDEC Commissioner Erin M. Crotty, “EPA’s 

Review of Proposed Permit for Al Turi Landfill Permit ID: 3-3330-00002/00039, Mod 12 (July 8, 2004).”

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 Letter from Raymond Werner, Chief, Air Programs Branch, EPA Region 2 to David J. Shaw, Director, Division of Air 

Resources, NYSDEC, “Re: Common Control Determinations in the Permitting of Landfills and Companion Gas-to-Energy 

Operations (July 18, 2006)”

6 Letter from Ronald Borsollino, Acting Director, Division of Environmental Planning and Protection to Scott Salisbury, 

Lawrence Hess regarding Common Control Determination for Ocean County Landfill and the Manchester Renewable 

Power Corp./LES (May 9, 2009)

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Landfills are not “support facilities” for beneficial use projects. Landfills are not sited for the purposes of creating gas 

that can be finished downstream in a renewable energy plant. Rather, landfills are in the waste disposal business. There is 

a great opportunity to treat and turn this gas into useable fuel and indirectly offset the use of fossil fuels, although this 

opportunity remains ancillary to the core function of the waste business. Accordingly, the mere existence of a 

“requirements” or “output” contact does not establish common control – namely, that the landfill has the power to direct the 

management and policies of third party energy recovery operation, thus controlling its operations. This is different from 

situations where the landfill must exclusively rely on the third party gas to energy plant. Compare Letter from Judy Katz, 

Region III to Gary Graham re Common Control for Maplewood Landfill (May 1, 2002 (no common control) with Letter to 

Terry Godar, Virginia Department of Environmental Quality, from Makeeba A. Morris, EPA, February 11, 1998 (landfill
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contrary to a common sense notion of a plant, and is a disincentive to the voluntary pursuit of contracts 

providing for the beneficial reuse of landfill gas as fuel. In our experience, the determination of single 

source status (and concerns about the risk of such future determinations) has also limited the size of 

renewable energy recovery facilities and/or delayed the environmental benefits arising from such 

projects because it unfairly results in the merging of such emissions from two separately owned and 

operated facilities, creating potential New Source Review (PSD/NSR) issues or concerns.

These important regulatory compliance issues cannot be properly addressed in contractual 

arrangements between the landfill owner and energy recovery project owner, but need to be resolved 

with clarifying guidance and training for EPA Regional and state permitting staff. Accordingly, EPA 

should issue national guidance setting forth a more reasonable interpretation in the context of landfill 

gas to energy projects as we suggest above. If nothing else, a landfill that sends treated landfill gas to a 

third party owned and operated energy recovery plant should be deemed a separate facility if the 

landfill can establish operational (i.e. backup landfill gas control capacity) and economic independence 

from the third party facility. This approach is consistent with what Rick Vetter expressed at the 

August 18, 2009 stakeholder meeting, in that once the landfill has treated the landfill gas and routed it 

to the beneficial use facility owned and/or operated by a third party, the landfill is no longer 

responsible for compliance with Subpart WWW landfill gas control requirements. We hope to have 

further dialogue with you on these subjects and to provide other illustrative examples.

Wellhead operating parameters and alternative timelines: In addition to our November 7, 2006 

written comments, we want to outline our concerns about inconsistent rule interpretations regarding 

appropriate timelines for correcting exceedances of the wellhead pressure, temperature and/or either 

oxygen or nitrogen parameters. The compliance provisions (40 CFR 60.755) of NSPS Subpart WWW 

establish specific timeframes for response to exceedances of the pressure, temperature, and oxygen or 

nitrogen operational standards (or higher operating value demonstrations, or agency-approved 

exceptions or alternatives). Wellhead monitoring is required to be performed monthly. If a wellhead 

exceeds one of the operational standards (or higher operating value demonstrations, or approved 

exceptions or alternatives), the rule states that “action shall be initiated to correct the exceedance 

within 5 calendar days.” This action typically involves adjustments to the throttling valve on a 

wellhead or the application of additional cover soils (or materials). If correction of the exceedance 

cannot be achieved “within 15 calendar days of the first measurement, the gas collection system shall 

be expanded to correct the exceedance within 120 days of the initial” exceedance. Any attempted 

corrective measure can not cause an exceedance of other operational or performance standards. 

An alternative timeline for correcting the exceedance may also be relied upon. The Agency stated in 

the Preamble to the 1998 Landfill NSPS amendments that expanding the gas collection system is not 

always the best response to an exceedance, which cannot be corrected within 15 days. EPA wrote that 

depending on the nature of the remedy selected to correct an exceedance, a timeline exceeding 15 days 

may be needed, but any timeline extending more than 120 days must be approved by the regulatory 

agency. (See 63 Fed Reg. 32743, 32758, June 16, 1998). This means that corrective action timelines 

exceeding 15 days, but that are less than 120 days do not require the approval of the regulatory agency. 

 

completely dependant on energy plant; energy plant will be used exclusively to collect emissions from the landfill and to 

control those emissions through energy recovery).
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Over the last ten years, the wellhead operating requirements for temperature, pressure and/or either

oxygen or nitrogen have proven to be the most complicated and inconsistently applied element of the 

Rule. For example, some state agencies and some EPA Regions have contended that the NSPS 

requires the facility to submit a written request for approval within 15 days of the initial exceedance 

for alternative compliance timelines to correct the exceedance. If such a written request is not 

submitted within the 15-day timeframe, the state automatically denies the request, which makes 

appropriate corrective action difficult if not impossible. 

The EPA Applicability Determinations Index (ADI) is replete with these types of requests, most asking 

for less than 120 days to correct the exceedance without expanding the collection system. For 

example, ADI Control Number 0800057 states that Region V denied a request for a 29-day alternative 

compliance timeline for one collection well because the facility failed to submit the request within a

15-day timeframe. 

In addition to the ADI, some state agencies have published written guidance on alternative timelines. 

For example, the Virginia Department of Environmental Quality recently issued guidance that states 

the following:

Alternate timeline requests must be submitted to the Department for approval. 

The request, as outlined in WWW, Section 60.755(a)(3) and (5) for pressure, 

temperature, and nitrogen or oxygen respectively, must be submitted and 

received by the Department within 30 days of the initial exceedance. The 

following items must be included in the request:

Description of the corrective action(s) taken in attempt to fix the exceedance 

within the WWW prescribed timeline

Explanation concerning why the corrective actions were not successful in 

correcting the exceedance(s)

A time table which details the planned corrective action(s)

If corrective actions after the 15th day of the initial exceedance but prior to the 

submittal of the request (before day 30 of the initial exceedance) the facility 

must still notify the Department that the exceedance was resolved, through what 

measures it was resolved, and that the alternative timeline is no longer 

necessary.

These standards are extremely prescriptive and create endless loops of corrective action, re-monitoring, 

recordkeeping, and reporting. These requirements are at best a nuisance and paperwork exercise and at 

worst hamper corrective action. We urge the EPA to revise the NSPS rule language to be consistent 

with the 1998 Preamble language by clarifying that corrective action timelines exceeding 15 days, but 

that are less than 120 days do not require the approval of the regulatory agency.

EPA’s new definition of “treatment” as proposed in the 2006 NSPS revisions, if finalized would 

hinder new and existing energy recovery projects. In our November 2006 comments, WM 

recommended an alternative treatment definition. We also recommended that all existing projects that 

have received written applicability determinations or approvals stating that the existing treatment 

system meets 40 CFR § 60.752(b)(2)(iii)(C) requirements as of the effective date of the final rule be 

exempt from any further action. In such instances EPA, or the delegated state or local authority, have

already evaluated the adequacy of the project’s treatment system. WM further recommended that the 
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proposed dew point suppression standard be scrapped in favor of requiring that the manufacturer’s or 

equipment supplier’s specifications for treatment be obtained by the gas treatment system 

owner/operator, and that a site-specific preventative maintenance plan (PMP) should be developed and 

included as part of the Start-up, Shutdown and Malfunction (SSM) Plan. WM provided examples and

substantial explanation to illustrate that the level of treatment necessary for efficient, long-term 

operation of the energy recovery equipment must be determined on a case-by-case basis accounting for 

site-specific characteristics, such as climate. A “one size fits all” approach to treatment is not practical 

and could damage project feasibility. Resolution of this issue would remove an important barrier to 

implementing energy recovery projects.

While research using flux boxes and optical remote sensing (ORS) has, and continues to be 

conducted to improve quantification and understanding of methane emissions from landfills, 

neither method could serve as an implementable or reliable regulatory compliance monitoring 

tool.

EPA did not clarify the purpose of discussing optical remote sensing (specifically OTM-10) and flux 

box measurement as part of the multi-stakeholder meeting. Presumably, the intended purpose is to 

explore OTM-10 or flux box measurements as alternative methods for the direct measurement of 

landfill emissions that could be used in place of the estimates derived from the LandGEM model. 

Waste Management supports the goal of using site-specific emissions data, which may better represent 

emissions. However, based on our extensive field work with the technique, we believe it is premature 

to recommend OTM-10 as the method by which these data can be reliably obtained. WM provided 

extensive comments on the inherent difficulties in using OTM-10 in our comments on the draft 

revisions to the AP-42 Emission Factors for MSW Landfills.

Both methods are very labor intensive and expensive to implement. Flux boxes can only measure 

methane emissions from the soil surface beneath the sealed chamber, so a large number are needed to 

study are large surface area. Accurate measurements with ORS are difficult to obtain over large areas, 

rough terrain and landfill slopes, and are highly susceptible to weather and wind currents. It is also 

difficult to determine what area of the landfill is contributing to the measured methane emissions. WM 

and EPA’s Office of Research & Development (ORD) have several cooperative research agreements 

testing OTM-10, but it is strictly a research method and both ORD and WM share views and concerns 

about its limitations for use at landfills. Because of the limitations of flux box and ORS methods, they 

are not able to capture emissions from the entire landfill and cannot account for the spatial, diurnal, 

and temporal variability of emissions and provides only a snap shot in time for a portion of a landfill. 

Importantly, we note that EPA’s Climate Change Division concluded in its proposed Mandatory GHG 

Reporting Rule that direct measurements using flux boxes and ORS were too complex and costly, and 

their measurements too uncertain for them to be used for greenhouse gas emissions inventorying 

purposes. The same limitations apply to their use for other regulatory purposes.

Miscellaneous Issues: At the August 18 meeting, EPA asked how many bioreactor landfills WM

operates. To respond, we currently operate bioreactor projects at ten landfills in the United States. We 

understand from our discussions that EPA is evaluating the bioreactor provisions in the MACT rule. 

We are interested in discussing with you possible MACT rule changes that impact bioreactor 

operations. 
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WM appreciates the opportunity to be a part of this ongoing dialogue with you and the other 

stakeholders as the Agency determines whether and how to approach possible changes to the NSPS/EG 

and NESHAP for MSW landfills. If you have any questions about our comments, please call either of 

us. Amy can be reached directly at (713) 328-7340 or abaniste@wm.com and Kerry at (202) 639-1218 

or kkelly5@wm.com. 

 

Amy Van Kolken Banister Kerry Kelly

Sr. Director, Air and LFG Programs Director, Federal Public Affairs

Cc: KC Hustvedt hustvedt.ken@epa.gov

Rick Vetter vetter.rick@epa.gov

Rachel Goldstein Goldstein.rachel@epa.gov