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EPA Assembling MSW Landfill NSPS Small Business Review Panel

July 1, 2013

The U.S. Environmental Protection Agency ("EPA") is inviting small businesses, governments, and not-for-profit organizations for self-nominations to serve as Small Entity Representatives ("SERs") and advise  the Municipal Solid Waste ("MSW") Landfill New Source Performance Standards ("NSPS") Small Business Advocacy Review ("SBAR") Panel.

MSW landfills receive household and other types of waste, such as commercial solid waste and non-hazardous sludge.  When these wastes decompose, MSW landfills produce emissions, known as "landfill gas."  NSPS are pollution control standards issued under the Clean Air Act that apply to specific categories of stationary sources, such as MSW landfills, and dictate how much pollution they may emit.  The Clean Air Act requires the EPA to review, and if appropriate, revise the NSPS for MSW landfills every eight (8) years.

The last time EPA developed NSPS for MSW landfills was in 1996, when the NSPS were originally promulgated.  As a result of its failure to act, the EPA was successfully sued by the Environmental Defense Fund, which resulted in a Consent Decree requiring EPA to review, and if appropriate, revise the current NSPS. [1] Following numerous extensions to the deadlines established by the Consent Decree, EPA must now complete its review by February 4, 2014 and take any final action by December 17, 2014.

Among other issues, EPA's review is likely to focus on NSPS emission limits for methane gas.  MSW landfills produce significant amounts of methane gas, and methane makes up approximately half of all landfill gas.  According to EPA and the Environmental Defense Fund, landfills account for between 17% and 22.6% of all domestic methane emissions.  Additionally, EPA will likely also focus its review on emission limits for non-methane organic compounds, including volatile organic compounds ("VOCs") and other hazardous and odorous air pollutants, which can contribute to the formation of ozone.

The SBAR Panel will include employee representatives from EPA as well as the U.S. Small Business Administration and the U.S. Office of Management and Budget.  These SBAR Panels are required under the Regulatory Flexibility Act for any EPA rulemaking that will have a significant economic impact on a substantial number of small businesses, small governments, and small not-for-profit organizations.  In the case of MSW landfills, small private landfills are those with revenues of $35.5M or less, and small government-owned landfills are those serving 50,000 people or fewer.

SERs that are selected by the panel members will assist in the review process by providing the panel with recommendations, information, and other advice.  Participation will have the opportunity to ensure their interests and the potential impacts the new rule could have on small entities are brought to the attention of the EPA and not overlooked in the rulemaking process.  EPA is accepting self-nominations through July 5, 2013.

For any questions related to the MSW landfill NSPS review process or how your small entity can participate, please contact your Clark Hill Environment, Energy and Natural Resources representative.

[1] Environmental Defense Fund v. Jackson, Case No. 11-cv-04492 (S.D.N.Y. 2008).

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