1

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 includin g 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 stakeholder s 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) Not ice of Intent to file suit regarding review of the NSPS/EG for MSW landfills, and disagree with several of the group’s

assertions. First, t he 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 reductio ns 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 L andfill 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).2

Second, WM dis agree s wi t h 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 capabl e 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 tech nology 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 us e 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 distri bute 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 be cause of non

combustible 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 rea sons, 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 st andards, 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 mand ating LFGTE as the only or primary BDT, EPA should work towards removing current barriers to energy recovery projects . Those barriers include: lack of clearly

defined compliance responsibilities at multi

- party energy recovery project sites; overly stringe nt “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 mak es 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

.3

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 demon s trates that a lack of clearly defined compliance responsibilities at multi

party sites and overly stringent “commo n control” determinations remain as significant barriers (or otherwise create disincentives or limit ing factors with respect to such energy projects)

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

not advo cate 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 raise d 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 contr ol” 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 we re 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 ow ner/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 clarificatio ns to the Proposed Rulemaking wou l d narrowly prescribe the circumstances under which compliance responsibility may transfer to a third party under the Landfill NSPS, yet w ould provide landfill

3 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 t he third party energy project).4

owners/operators with meaningful opportunities and flexibility to maximize the value of beneficia l 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, E PA 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 Landfil l 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 sourc e. 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 t he 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 schedul e 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 con stitutes common control

.

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

demonst r ated in the very recent decision regarding Ocean County Landfill in New Jersey. 6 T here, 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. I nstead, EPA

reference d “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

- side d reliance by a separately owned and operated renewable energy facility on the landfill should not establish common control, in situations in which t he landfill is economically viable and can operate
in a manner that is operationally independent of the thi rd 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).”

5 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)

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

that can be finished downst r eam in a renewable energy plant. Rather, landfills are in the waste disposal business. There is
a great o pportunity 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 Q uality, from Makeeba A. Morris, EPA, February 11, 1998 ( landfill5

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, t he determination of s ingle

source status (and concerns about the risk of such future determinations) has also limit ed the size of renewable energy recovery facilities and/or delayed the environmental benefits arising from such projects because it unfairly results in the mergin g of such emissions from two separately owned and operated facilities, creating potential New Source Review ( PSD/NSR ) issues or concerns

.

T hese important regulatory compliance issues cannot be properly addressed in contractual arrangements between the landfill owner and ener gy 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 interpretati on 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 recove r y plant should be deemed a separate facility if the

landfill can establ ish operational ( i.e

. backup landfill gas control capacity) and economic independence

from the third party facility

. This approach is consistent wit h 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 c ompliance with Subpart WWW landfill gas control requirements

. We hope to have further dialogue with you on the se 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

appro priate 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 p ressure, temperature, and oxygen or nitrogen operational standards (or higher operating value demonstrations, or agency

- approved exceptions or alternatives). W ellhead monitoring is required to be performed monthly. If a wellhead exceeds one of the operat ional 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 thrott ling 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 exceedan ce 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. T he 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 cor rect 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 1 5 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 )

.6

Over the last ten years, the wellhead operating requirements for t emperature, 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 alternat ive 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 Appli cability Determinations Index (ADI) is replete with these types of request s , 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 reques t 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.

Fo r example, the Virginia Depar t ment 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) fo r 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 15 th 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 a lternative 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

wor st hamper corrective action. W e urge the EPA to revise the NSPS rule language to be consistent with the 1998 Preamble language by clarify ing th at 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 . W e 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

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

, ha ve already evaluated the adequacy of the project’s treatment system. WM further recommended that the7

proposed dew point suppression standard be scrapped in f avor 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

- cas e 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 re covery 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 reliabl e 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 o r flux box measurements as alternative method s 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 us ing site

- specific emissions data, which ma y 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 difficu lties 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 th e 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 als o 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 W M operates. To respond, we currently operate bioreactor projec ts a t ten landfills in the United States

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

We are interested in discussi n g with you possible MACT rule changes that impact bioreactor operations

.8

WM appreciates the opportunity to be a part of this ongoing dialogue with you an d 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

- 7 340 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