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. Importantly, there are two distinct issues 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. The 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?"
The short answer is this: 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.
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.
For many operators, the focus is now more about managing risk than about achieving 100% compliance. Each company's tolerance for risk of the potential for enforcement will be a consideration. However, affected companies should consider the following recommendations with respect to OOOOa compliance.
- Identify affected facilities. Keep in mind that this rule only impacts sources that commenced construction, modification or reconstruction after September 18, 2015. Consider EPA's definitions of "construction," "modification," and "reconstruction" to avoid surveying sites that are not subject (or missing sites that are).
- Develop the Monitoring Plan. The plan must be available, but only submitted upon request. The simple process of going through the development of this plan can help clarify the ins and outs of how to execute this program, even if working with a third-party vendor to conduct the surveys. It will also help specify expectations for the LDAR vendor. It can be updated once surveys begin based on lessons learned from the field.
- Communicate survey expectations and practices to potential vendors and/or internal resources. In order to get the most accurate bids from vendors (or the appropriate dedication of time and effort for internal resources), it is important to have an understanding of what sites are subject, and to have a clear expectation of exactly how and what your vendor (or internal resources) will be doing in order to perform the surveys.
- Be flexible. During the first few years of any rule or new requirement, everyone is learning. Embrace lessons learned, and focus on forward movement.
- 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.
Trinity Consultants Can Assist
Trinity can assist with OOOOa compliance in several areas.
- LDAR Plan Training and Development. A one-day training session will educate staff on what goes into conducting surveys and how your company may need to modify existing programs to meet the requirements. This will help operators clearly understand the requirements, while also developing a monitoring plan that meets the requirements of the regulation.
- OGI Survey Training and Support. Trinity has certified thermographers available to train internal or external resources on surveys and associated recordkeeping. We work with operators to understand the nuance of OGI surveys such as common vents that should not be monitored (or considered "leaking").
- OOOOa Corporate Training. We can provide customized training for your team on the requirements of OOOOa and how it impacts your operations. These sessions can be held convenient to field offices or corporate operations.
- OOOOa Annual Reporting Support. We can help to prepare annual reports that are due no later than October 31, 2017.