Closing Out 2017, EPA, BLM and BSEE Provide Public Notice of Significant Regulatory Actions

Public notice of some very significant regulatory actions has been provided in the waning days of 2017.

1. On December 28, the Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ADPRM) at 82 FR 61507 soliciting comments from the public as it considers proposing new state guidelines for greenhouse gas emissions (GHG)  from existing electric utility generating units.  The ADPRM states that it “focuses on considerations pertinent to a potential new rule establishing emission guidelines for GHG (likely expressed as carbon dioxide CO2 ) from existing [electric utility generating units (EGUs)]. In this ANPRM, the EPA sets out and requests comments on the roles, responsibilities, and limitations of the federal government, state governments, and regulated entities in developing and implementing such a rule, and the EPA solicits information regarding the appropriate scope of such a rule and associated technologies and approaches.” Further, “this ANPRM solicits comment on what the EPA should include in a potential new existing-source regulation under the [Clean Air Act (CAA)] section 111(d), including comments on aspects of the States’ and the EPA’s role in that process, on the Best System of Emission Reduction in this context under the statutory interpretation contained in the proposed repeal of the [Clean Power Plan(CPP)], 82 FR 48035 (October 16, 2017).”  EPA lists a number of available systems of GHG emission reduction, the role, if any, on carbon capture and storage (CCS)technologies, and potential interaction with other regulatory programs such as New Source Review and New Source Performance Standards.  Comments must be received on or before February 26, 2018.
2. On December 29, the Department of the Interior’s Bureau of Land Management (BLM) published a final rule at 82 FR 61924, effective immediately, which rescinds the BLM’s 2015 rule affecting oil and gas hydraulic fracturing operations on Federal and Indian lands.  BLM has concluded that these rules “impose administrative burdens and compliance costs that are not justified.” Accordingly, this action essentially restores the rules that were in place before the 2015 rules were promulgated (the rules are located at 43 C.F.R. Part 3160).  The BLM’s review of the 2015 rule included a study of incident reports from Federal land  and Indian wells since December 2104, and BLM concluded that “resource damage is unlikely to increase by rescinding the 2015 final rule because of the rarity of adverse environmental impacts that occurred from hydraulic fracturing operations since promulgation of the 2015 rule.  The BLM now believes that the appropriate framework for mitigating these impacts exists through state regulations, through tribal exercise of sovereignty, and through BLM’s own pre-existing regulations and authorities.”  BLM is confident that its review of the law and the data will satisfy the legal criteria needed to demonstrate a reasoned justification for rescinding the 2105 rule.
3. On December 29, the Department of the Interior’s Bureau of Safety and Environmental Enforcement (BSEE) published a notice of proposed rulemaking (NPRM) at 82 FR 61703 that would amend the 2016 rules which established Oil and Gas Production Safety Operations on the Outer Continental Shelf (the regulations are located at 30 C.F.R. Part 250).  Comments are due by January 29, 2108. According to BSEE, the proposed rule would “fortify the Administration’s objective of facilitating energy dominance through encouraging increased domestic oil and gas production by reducing unnecessary burdens on stakeholders while maintaining or advancing the level of safety and environmental protection.”  Since the 2016 rules took effect, the BSEE “has become aware that certain provisions … created potentially burdensome requirements to oil and natural gas production operators on the OCS without significantly increasing safety of the workers or protection of the environment.” The NPRM proposes changes that will clarify reporting requirements, production safety and design requirements, make certain conforming changes with the regulatory framework, update the incorporated edition of standards referenced in subpart H of the rules, and revise the 2016 requirements that operators obtain an independent  third-party certification that each item of safety and pollution prevention equipment “is designed to function in the most extreme conditions to which it will be exposed.”