Subpart OOOOa and the Congressional Review Act

The U.S. EPA promulgated two separate revisions to 40 CFR Part 60, Subpart OOOOa – Standards of Performance for Crude Oil and Natural Gas Facilities for which Construction, Modification or Reconstruction Commenced After September 18, 2015 (NSPS OOOOa) in September of 2020 that were largely viewed as beneficial to the oil and gas industry.

The first revision, promulgated on September 14, 2020, is referred to as the “NSPS OOOOa Policy Rule.” It rescinded all rule requirements that applied to sources in the natural gas transmission and storage sector and rescinded all methane emissions standards for sources in the oil and gas production and processing sectors. The Policy Rule also included a Section 111 interpretation that required a pollutant-specific “significant contribution finding” in order to regulate greenhouse gas emissions from NSPS source categories.

The second revision, promulgated on September 15, 2020, is referred to as the “NSPS OOOOa Technical Rule.”  It amended NSPS OOOOa to address several technical and implementation issues (e.g., fugitive emissions requirements, pneumatic pump standards, engineer certifications, etc.) related to the rule in response to administrative petitions for rule reconsideration.

Upon the change in administration, a January 20, 2021, Executive Order was issued titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed U.S. EPA to take certain actions to reduce emissions from the oil and gas sector.  As a result of the change in thinking with the new administration, a joint resolution of Congress was adopted to disapprove the September 14, 2020 NSPS OOOOa Policy under the Congressional Review Act (CRA) and was signed into law on June 30, 2021.   The CRA resolution that disapproved the 2020 Policy Rule did not address the 2020 Technical Rule and those amendments remain in effect for now.  Congress created a very confusing scenario by rescinding one set of NSPS OOOOa rule revisions under the CRA while leaving another set of NSPS OOOOa rule revisions intact, which could leave affected oil and gas operators in a precarious compliance position with regard to NSPS OOOOa.

In an attempt to clarify the rule revisions for the regulated community, the U.S EPA published a document titled “Congressional Review Act Resolution to Disapprove EPA’s 2020 Oil and Gas Policy Rule – Questions and Answers”.  An interesting outcome is that under the CRA, a rule that is subject to a joint resolution of disapproval is treated as if the rule had never taken effect.  CRA rule recissions are more typically associated with the elimination of an entire rule, not elimination of a rule that amended another rule.  Several examples from the referenced link are provided below:

• Sources in the production and processing segments that commenced construction, reconstruction, or modification after September 18, 2015, are subject to the NSPS OOOOa methane requirements and the volatile organic compound (VOC) requirements of the NSPS OOOOa Technical Rule.
• Sources in the transmission and storage segment that commenced construction, reconstruction, or modification after September 18, 2015, are subject to the NSPS OOOOa methane and VOC requirements.
• There are no stated compliance deadlines for now affected sources that commenced construction, reconstruction, or modification between September 14, 2020 and June 30, 2021. Such sources should evaluate potentially applicable NSPS OOOOa and NSPS OOOOa Technical Rule requirements and take immediate action to comply with those rule provisions that apply.
• Existing sources for which applicable requirements were rescinded by the NSPS OOOOa Technical Rule should immediately resume applicable compliance related activities associated with those affected sources if such activities were discontinued upon promulgation of the NSPS OOOOa Policy rule.

If you weren’t confused already, more actions are coming.  A proposed rulemaking is expected from U.S. EPA in the near term as a result of their review of the NSPS OOOOa Policy and Technical Rules and we will also see a proposal to establish emission guidelines that regulate methane and VOC emissions from existing sources not covered by the NSPS.  Please contact me at rrakiewicz@all4inc.com or your ALL4 Project Manager if you have any questions.