September 29, 2017
Many EPA stays, delays, and proposed rulemakings, combined with court actions to overturn or reconsider previously issued rules, may have left some operators lost in a haze regarding NSPS Subpart OOOOa requirements that apply to their oil and gas sources according to this September 22, 2017 Trinity Consultants report.
Two distinct issues are in play that are not directly related to one another. First, there are the currently codified rules (i.e., the “rules on the books”). Second, there is a proposed rule that, if finalized, would initiate a two-year stay of several provisions of OOOOa (including the leak detection and repair [LDAR] provisions for well sites and compressor stations).
Part One: The Existing Rules
There has been no shortage of confusion regarding EPA’s ill-fated 90-day stay for certain provisions of NSPS OOOOa, most notably the LDAR requirements for well sites and compressor stations. In April 2017, EPA indicated its intent to stay certain provisions (including the LDAR provisions) for 90 days. That stay, which was published in the Federal Register on June 5 (and implemented retroactively to June 2), was overturned on July 3. While there were some efforts by EPA to challenge the court ruling, the stay remains vacated, and compliance requirements remain in effect. This back-and-forth has left many operators wondering, “What do we do now?”
Here’s the short answer. Begin taking steps towards ensuring compliance. As of the date of this article, the rule and the original compliance deadlines for NSPS Subpart OOOOa (including the June 3, 2017 deadline for initial fugitive monitoring), are technically in force until a new rule can be published in the Federal Register. This means that affected sources that did not perform the required surveys in accordance with the methods in OOOOa prior to June 3, 2017, are out of compliance and must report the associated deviations to EPA in their annual report, due no later than October 31, 2017.
While EPA closed the comment period on the proposed two-year stay on August 9, until such time a new rule is finalized which includes the two year delay (and assuming such a rule can weather the inevitable litigation to follow), facilities will remain at risk for enforcement. Facilities subject to GHG reporting are particularly vulnerable now that EPA requires well-level reporting of drilled or hydraulically fractured wells (both triggers for LDAR requirements under OOOOa).
Generally speaking, agencies and EPA have taken a facility’s good faith effort to comply into consideration when commencing enforcement actions. Now is the time to begin taking steps towards developing the required LDAR Monitoring Plan and scheduling the required surveys.
Part Two: The Proposed 2-Year Delay
EPA has proposed a rule delaying some of the OOOOa requirements for two years. In its proposal, EPA is proposing to delay the following requirements:
- LDAR standards for well sites and compressor stations;
- Pneumatic pump standards; and
- P.E. certification for closed vent systems.
The comment period for these proposed changes closed on August 9. As of the writing of this article, there is not a finalized regulation awaiting signature at the Office of Management and Budget (OMB), the final stop for regulations prior to their release.
When the Court issued its ruling against EPA’s proposed 90-day stay, the ruling stated that the Court’s decision regarding the 90-day stay had no impact on EPA’s authority to move forward with this proposed two-year stay. However, in the final paragraph of the ruling, the Court added:
Although EPA had no section 307(d)(7)(B) obligation to reconsider the methane rule, it is free to do so as long as “the new policy is permissible under the statute . . , there are good reasons for it, and . . . the agency believes it to be better.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
This could be a tall order for EPA. Justifying why the agency believes a rule to delay compliance requirements is a “better” rule could be challenging. Furthermore, it will be difficult for EPA to completely disregard those who commented adversely on the proposed two-year stay. With no proposed rules relating to OOOOa awaiting signature, for now, OOOOa remains in full effect.
Moving Forward
The bottom line is that OOOOa compliance requirements are in effect today, and LDAR surveys were required to be completed by June 3, 2017. Of course, the path this rule has taken in recent months has made it impossible for many operators to fully comply, and this fact will likely be taken into consideration should an enforcement issue arise. However, it will be important to show a good faith effort by moving forward with the intent to comply.
Don’t forget to report on or before October 31, 2017. All subject facilities could be included in the LDAR report as well as the facilities subject to OOOOa LDAR provisions. Any covered facility that was constructed, modified or reconstructed between September 18, 2015 and August 2, 2017 should be listed in the report.
What this means to you
Don’t forget to report on or before October 31, 2017. All subject facilities could be included in the report as well as the facilities subject to OOOOa LDAR provisions. Any covered facility that was constructed, modified or reconstructed between September 18, 2015 and August 2, 2017 should be listed in the report.
MIRATECH can help
Contact MIRATECH for more information about stationary engine emission controls.