July 21, 2015

The Honorable Gina McCarthy

Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, NW Washington, DC 20460

Dear Administrator McCarthy:

Enclosed for your consideration is the Report of the Small Business Advocacy Review Panel (SBAR Panel or Panel) convened for EPA’ s planned proposed rulemakings ent itled “Standards of Performance for Municipal Solid Waste Landfills” (supplemental notice) and the “Emissions Guidelines and Compliance Times for Municipal Solid Waste Landfills.” These notices of proposed rulemaking are being developed by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act (CAA).

Section 111 of the Clean Air Act (CAA) requires the EPA Administrator to list categories of stationary sources, if such sources cause or contribute significantly to air pollution that may reasonably be anticipated to endanger public health or welfare. The EPA must then issue performanc e standards for such source categories. These stan dards are referred to as new source perform ance standards or NSPS. The EPA has the authority to define the source catego ries, determine the pollutants for which standards should be developed, identify the facilities within each source category to be covered, and set the

emission level of the standards. Emission Guidelines are established for existing sources under CAA section 111(d) for source categories that emit pollu tants not regulated under other parts of the CAA and to which an NSPS would apply if such existing sour ce were a new source. The emission guidelines are implemented through individual state plans. If a st ate does not have an approved state plan, section 111 of the CAA and the general provisions (40 CFR 60.2 7(c) and (d)) require EPA to develop, implement, and enforce a federal plan for existing municipal so lid waste (MSW) landfills in that state.

On December 5, 2013, EPA’s Small Business Advocacy Chairperson convened th is Panel under section 609(b) of the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act ( SBREFA). In addition to its chairperson, t he Panel consists of the Director of the Sector Policies and Program Division within EPA’s Offi ce of Air and Radiation, the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB), and the Chief Counsel for Advocacy of the Small Business Admini stration (SBA). It is important to note that the Panel’s findings and discussion are based on the informati on available at the time this report was drafted. EPA is continuing to conduct analyse s relevant to the proposed rule , and additional information may be developed or obtained during this process as well as from public comment on the proposed rule. The options the Panel identified for reducing the rule’s economic impact on small entities will require further analysis and/or data collection to ensure that the options are practicable, enforceabl e, protective of public health, environmentally sound and consistent with the CAA.



### SUMMARY OF SMALL ENTITY OUTREACH

Prior to convening the Panel, EPA conducted outreach wi th small entities that will potentially be affected by these regulations. In October 2013, EPA invited SBA, OMB, and potentially affected small entity representatives to a conference call and solicited comm ents from them on preliminary information sent to

them. EPA shared the small entities’ written comments with the Panel as part of the Panel convening

document.

After the SBAR Panel was convened, the Panel distri buted additional information to the small entity representatives (SERs) on December 5, 2013, for their review and comment and in preparation for another outreach meeting. On December 19, 2013, th e Panel met with the SERs to hear their comments on the information distributed in these mailings. T he SERs were asked to pr ovide writt en feedback onideas under consideration for t he proposed rulemakings. Following the December 2013 outreach meeting, the EPA published on July 14, 2014 a notice of proposed rulemaking on the new source performance standards for municipal solid waste landf ills and an advanced notice of proposed rulemaking on the amendments to the emissions guidelin es for municipal solid waste landfills. Subsequent to these published actions, the Panel again met with SERs for further outreach and engagement on April 14, 2015. Following each of these outreach meetings, the P anel received written comments from the SERs in response to the discussions at this meetings and t he relevant outreach materials. See Section 7 of the Panel Report for a complete discussion of SER comment s. Their full written comments are also attached. In light of these comments, the Panel considered the regulatory flexibility issues specified by RFA/SBREFA and developed the findings and discussion summarized below.



### PANEL FINDINGS AND DISCUSSION

Under section 609(b) of the RFA, the Panel is to report its findings related to these four items:

1) A description of and, where feasible, an estima te of the number of small entities to which the proposed rule will apply.

2) A description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report

or record.

3) Identification, to the extent practicable, of all relevant federal rules which may duplicate, overlap or conflict with the proposed rule.

4) A description of any significant alternat ives to the planned proposed rule which would minimize any significant economic impact of t he proposed rule on small entities consistent with the stated objectives of the authorizing statute.

The Panel’s most significant findings and discussion with respect to each of these items are summarized

below. To read the full discussion of the Panel findings and recommendations, see Section 8 of the Panel Report.

A. Number and Types of Entities Affected

For a complete description of the small entities to wh ich the proposed rules may apply, see Section 4 of the Panel Report.

B. Recordkeeping, Reporting, and Other Compliance Requirements

The potential reporting, recordkeeping, and compliance requirements are still under development. However, the Panel anticipates that the requireme nts will be the minimum requi red by the statute to ensure compliance with the emission limits. Complianc e testing should be in accordance with EPA or other approved methods. Reporting and recordkeeping requirements should be streamlined if practicable.

C. Related Federal Rules

MSW landfills that are subject to the Emission Guidel ines or NSPS are also lik ely to be subject to the

National Emission Standards for Hazardous Air Pollu tants: Municipal Solid Waste Landfills (40 CFR part 63, subpart AAAA). However, the landfills NESHAP work s in conjunction with the Emission Guidelines and NSPS and points to the Emission Guidelines a nd NSPS for control require ments. Landfills that beneficially use landfill gas may also be subject to combustion-related NSPS or NESHAP, however, those

rules do not conflict with the NMOC destruction or LFG treatment requirements of proposed subparts Cf and XXX. Further, the landfills expected to become subject to subpart Cf are currently subject to 40 CFR part 60 subpart WWW, 40 CFR part 62 subpart GGG, or the state plans implementing 40 CFR part 60subpart Cc. Once subpart Cf is fully finalized and implemented, the state and federal plans implementing this new subpart Cf will supersede the requi rements of the subparts WWW and Cc. Many of the MSW landfills subject to the proposed Emission Guidelines and NSPS are subject to 40 CFR part 98, subpart HH of the GHG reporting rule. Fo r both the landfills Emission Guidelines/NSPS and subpart HH of the GHG reporting rule, landfills must repo rt (or use in calculations) data elements such as landfill capacity, open/closed status, and waste ac ceptance. Landfills subject to both the Emission Guidelines/NSPS and subpart HH of the GHGRP must calculate emis sions. The Emission Guidelines/NSPS requires calculation of an annual NMOC emission rate, based on default values or sitespecific measurements of methane generation rate and NMOC concentration, whereas subpart HH of the GHGRP requires calculation of quantity of methane destroyed, based on monitoring data such as flow, moisture, and methane concentration. Although landfills w ill record or report similar data elements (i.e., design capacity, waste acceptance, methane concentrati on, GCCS details, flowrate) under the two sets of landfills rules, the rules have different objectives. The Emission Guidelines/NSPS requires landfill owners and operators to control NMOC emissions using a co llection and control system, whereas subpart HH of the GHGRP reporting rule requires landfill owners and operators to report specific landfill parameters and

to estimate methane emissions.

The landfills Emission Guidelines and NSPS cover ai r emissions from MSW landfills and were not intended to be duplicative of, or overlap significant ly with, RCRA requirements. Emission guideline and NSPS landfills may also receive Res ource Conservation and Recovery Act (RCRA) subtitle D waste (e.g., commercial solid waste, non-hazardous sludge, co nditionally exempt small quantity generator waste, and industrial waste). Subtitle D of RCRA addresses lo cation, liner specifications, leachate collection and removal systems, operating practices, groundwater m onitoring, corrective action measures, closure and post-closure care, and financial assurance of non-hazardo us solid wastes. Under s ubtitle D, the state and local governments are the primary planning, permi tting, regulating, implementing, and enforcement agencies for management and disposal of household and industrial or commercial non-hazardous solid

wastes. EPA establishes technical desi gn and operating criteria (which, at a minimum, the states include in their own regulations) fo r disposal facilities.

While methane migration control measures are re quired under both subtitle D and the Landfill NSPS, subtitle D deals with explosive hazards in fac ility structures and at property boundaries. Surface monitoring requirements u nder the landfill NSPS were designed to ens ure that the landfill cover or cap and gas collection system were properly designed and operated. Well monitoring under subtitle D is for leachate migration and not gas monitoring (which is required for the Landfills NSPS).

D. Regulatory Flexibility Alternatives

The Panel agrees that the EPA should explore regulat ory alternatives and pr ovide flexibility where appropriate. This flexibility can lessen impacts to small ent ities as well as entities not classified as small.

Federal Plan

SERs encouraged the EPA to develop a Federal plan or template for an approvable State plan. The

Panel recommends that the EPA devel op a Federal plan. The Panel agr ees that a Federal plan is

needed, and recommends that EPA set a schedule for developme nt the Federal plan, if appropriate.

Direct regulation of methane

SERs expressed concerns about changes to the de signated pollutant, including administrative burden and legal uncertainty. The Panel agrees that the pollut ant of interest should continue to be landfill gas and that NMOC should continue to be measured as a surrogate.

Site-specific emission threshold determinations (Tier 4)The current landfill regulatory requirements include use of a series of models to determine exceedance of

the emission threshold. After exceeda nce of the threshold, landfills hav e 30 months to install controls. SERs expressed support for a new app roach, known as Tier 4, which would allow for a site-specific measurement in addition to the current approved models.

The Panel recommends that the EPA adjust the current requirements for determining when landfills are required to install GCCS. In addition to the current model requirements, the Panel recommends that the EPA allow the use of site-specific Tier 4 monitori ng. The Panel recommends that the site-specific requirements be based on the thresholds and proced ures outlined in EPA Method 21 and that Tier 4 be allowed after a failed Tier 1, Tier 2, or Tier 3 te st. The Panel also recommend s that EPA allow the Tier 4 approach to be used to determine when a GCCS can be removed.

Design capacity and emission threshold

During the Pre-panel and Panel Outr each Meetings, the EPA presented va rious options that adjusted the design capacity and NMOC emission thresholds curr ently outlined in the landfill air regulations. SERs recognized that additional emission reductions could be achieved by lowering these thresholds. SERs however, encouraged the EPA to consider the impact (e.g., operations and costs) that si gnificant lowering

of these thresholds could have on small entities an d landfills with low gas quality or flowrate. SERs specifically encouraged EPA to consider the remaining useful life when lowering the threshold. SERs also encouraged EPA to explore alternatives to modeled emission requirements an d expressed concerns about the costs and benefits of lowering threshol ds for landfills with declining gas flows.

The Panel agrees that while significant emission r eductions may be achievable, lowering of the design

and/or emission thresholds should not occur without a practical assessment of barriers to compliance and

an assessment of the cost effectiv eness of such changes on small entities. Further, changes to design capacity will make additional landfills (that are o ften small) subject to new requirements. The Panel recommends that EPA consider options for subcategorization to minimize the burden on small entities. For example, closed landfills could be exempted from new requirements that incr ease stringency of the emission threshold. This would help to ensure that a disproportionate number of closed landfills (which are often small and have declining gas flows and re venues) would not have to incur the burden of additional compliance costs. It should also be no ted that the streamlined wellhead monitoring requirements (outlined in Section 8.4.9 of this doc ument) and surface emission-based thresholds for installing and/or removing controls (outlined in sect ions 8.4.5 and 8.4.6 of this document) would also provide flexibility for clos ed areas and closed landfills.

Requirements for gas collection system installation and expansion

The EPA presented various options that reduced time lines for gas collection system installation and wellfield expansion. SERs expressed concerns about t he ability to meet compliance deadlines if timelines for gas collection system installation or expansion we re reduced. SERs also expressed concerns about increased burden (e.g., permitting, construction, and oper ational costs) associated with tighter timelines. Additionally, SERs asserted that increased stringency of these parameters was not necessary. The Panel agrees that barriers associated with adjustments to time lines for gas collection installation and wellfield expansion (e.g. monitoring and costs) should be co nsidered. The Panel re commends that EPA avoid making substantive changes to timelines establis hed for collection system installation and expansion unless it his significant evi dence that tightening these metric s would be cost effective.

Removing a GCCS

SERs expressed concerns about the current requirement s for GCCS removal, specifically the minimum 15-year time period for GCCS operation and the desire for intermittent operation of a GCCS in lieu of capping and removing the system. The Panel agrees EPA should acco unt for declining gas flow by allowing site-specific measurements as part of the removal criteria. Those changes should allow for consideration of declining gas flow independent of the current 15 year GCCS requirement.Surface monitoring

The EPA outlined its current approach to surface m onitoring (EPA Method 21) du ring the Pre-Panel and Panel Outreach Meetings. The EPA al so discussed its explor ation of alternatives to the requirements currently outlined in Method 21, known as enhanced surface monitoring (modeled after key aspects of the California Landfill Methane Rule). SER s asserted that the current approach to surface monitoring should continue. Additionally, SERs discussed their familia rity with the alternat ive approaches explored and encouraged the EPA to recognize that those alternatives were not co upled with the monthly gas well monitoring requirements outlined in the landfill air re gulations. Further, SERs asserted that surface monitoring was an effective means of ensuring prop er operation of gas collection and control systems and, as such, eliminated the need for monthly gas we ll monitoring of temperature and nitrogen/oxygen (outlined in Section 8.4.8 of this document). SERs also encouraged the EPA to solicit data before adopting new surface monitoring requirements.

The Panel believes that changes to the current surf ace monitoring requirements are not warranted based upon the information currently available. However, additional data should be considered. As such, the

Panel recommends that EPA solicit comment on alternative approac hes to surface monitoring and explore changes to current surface monitoring require ments if deemed appropriate. Additionally the Panel recommends that EPA request data on sp ecific parameters such as wi nd speed, walking patterns, and integrated measurements.

Organics diversion

SERs expressed concerns with mandating or encouragi ng organics diversion. The Panel agrees that there are significant barriers to mandating organics diversion and that a mandate should not be pursued at this time. The Panel, however, recognizes the b enefits of voluntary organics diversion programs. The EPA asserts that encouraging t hese practices are beneficial in that they reduce the am ount of landfill gas generated and can serve as a useful compliance tool by postponing or preventing the need to install a

GCCS.

Gas well monitoring

During its Pre-panel and Panel Outreach Meetings, the EPA encouraged SERs to discuss their practical experience with the landfill air regulations and recommend options that could potentially reduce regulatory burden while meeting or exceeding the levels of protec tion currently achieved by the rules. SERs, in turn, asserted that monthly gas well monitoring require ments for temperature and nitrogen/ oxygen were onerous and unnecessary. SERs asserted that it was in t heir best interest to ensure proper operation of gas wells. They also viewed recordkeeping and corr ective action requirements associated with monthly gas well monitoring as overly burdensome.

The Panel recommends that EPA remo ve the requirement to meet oper ating limits for temperature and nitrogen/oxygen as well as the associated corrective action requirements. The EPA however, asserts that monitoring of temperature and nitrogen/oxygen at wellheads, could be used to inform potential adjustments to the GCCS (while eliminating the requir ement to meet a limit). The Panel recommends that EPA explore retention of the negative pressure requirement as well as its associated recordke eping and reporting requirements.

Landfill gas treatment

The current landfill air regulations do not define l andfill gas treatment. Amendments proposed in 2002 and 2006 attempted to address landfill gas treatment by creating a definition. One approach, under the proposed amendments, sought to define treatment as f iltration, dewatering, and compression of landfill gas. Another proposed approach, assigned numeric cr iteria to the treatment definition to address ambiguity and provide clarity for regulatory complia nce. Over the course of Panel meetings, the EPA requested comments on both appr oaches from SERs. The EPA also presented an additional numeric approach that refined the numeric option outlined in the 2006 proposal.