New Administration At EPA To Reconsider Several Issues

The new administration at the Environmental Protection Action has taken these actions:

• Reconsidering the New Methane Rules.

On June 3, 2016, pursuant to the Clean Air Act (CAA), EPA promulgated amendments to the existing oil and gas New Source Performance Standards, 40 C.F.R. Part 60, Subpart 0000, and established new methane emissions standards for the these sources, 40 C.F.R. Part 60, Subpart 0000a, with respect to volatile organic compounds (VOC) and greenhouse gas emissions. The new 0000a standards are designed to reduce pollutant greenhouse gases (GHG) emissions from oil and natural gas production, processing, transmission and storage activities and operations.

On April 18, responding to petitions for reconsideration filed by industry groups and trade associations, EPA determined that these petitions raised an important issue that had not been considered earlier regarding the monitoring of fugitive emissions. As a result, EPA will convene a new proceeding to reconsider these requirements, and stayed the compliance date for fugitive emissions monitoring for 90 days. EPA will also consider the impact of these rules on low–production wells.

• Litigating EPA’s Final Action Regarding the Treatment of Excess Emissions During Startups, Shutdown and Malfunctions.

On June 12, 2015, EPA took final action on a petition for rulemaking filed by the Sierra Club with respect to the treatment, under the CAA, accorded excess emissions during periods of a regulated source’s startup, shutdown or malfunctions (the “SSM” rules) by EPA-approved State Implementation Plans (SIP). This controversial action has been challenged in the DC Circuit in the case of Walter Coke, Inc. et al., v. EPA, and oral argument is scheduled for May 8, 2017.

The Department of Justice, on behalf of EPA, has now filed a motion with the court to postpone this oral argument to provide the new administration at EPA with adequate time to fully review the actions of its predecessor, and decide whether they should be reconsidered. If granted, EPA will provide the court with status reports every 90 days. On March 15, 2017, the Texas Commission on Environmental Quality filed an administrative petition for reconsideration of these rules. The environmental intervenors oppose this motion.

•  Litigating EPA’s “Supplemental Finding” that it is Necessary to Regulate Hazardous Air Pollutants from Coal and Oil-Fired Electrical Power Plants.

This involves the Mercury and Air Toxics Standard (MATS). On April 25, 2016, EPA issued a “Supplemental Finding” in response to the Supreme Court’s decision in Michigan v. EPA, that a consideration of cost does not persuade EPA that these units should not be regulated under Section 112(d) of the CAA. This action is being challenged in the DC Circuit in the case of Murray Energy Corporation, et al v. EPA, and oral argument is scheduled for May 18, 2017.

DOJ, on behalf of EPA, has requested that oral argument be postponed to give the new administration at EPA adequate time to review the Supplemental Finding to determine whether it will be reconsidered. The government also cites the March 28, 2017 Executive Order that requires EPA to review for possible reconsideration any rules that could potentially burden the development or use of domestically-produced energy resources. This request is opposed by many of the intervenors in this case.

Since the court has already agreed to the Government’s request to postpone oral argument in the latest ozone case, it will be interesting to see how the court reacts to these requests