[Federal Register Volume 82, Number 215 (Wednesday, November 8, 2017)]
[Proposed Rules]
[Pages 51794-51800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24341]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2017-0346; FRL-9970-56-OAR]
RIN 2060-AT65


Oil and Natural Gas Sector: Emission Standards for New, 
Reconstructed, and Modified Sources: Three Month Stay of Certain 
Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of data availability.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is issuing this 
notice of data availability (NODA) in support of the proposed rule 
titled ``Oil and Natural Gas Sector: Emission Standards for New, 
Reconstructed, and Modified Sources: Three Month Stay of Certain 
Requirements,'' which was published on June 16, 2017. In this document, 
the EPA is providing additional information on topics raised by 
stakeholders and is soliciting comment on the information presented.

DATES: Comments must be received on or before December 8, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2017-0346, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the Web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mr. Peter Tsirigotis, Sector Policies 
and Programs Division (D205-01), Office of Air Quality Planning and 
Standards, Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711; telephone number: (888) 627-7764; email address: 
airaction@epa.gov.

SUPPLEMENTARY INFORMATION: 
    Organization of This Document. The information presented in this 
document is organized as follows:

I. Background
II. Legal Authority
III. Stakeholder Input on Sources' Ability To Implement Requirements
    A. Fugitive Emissions Requirements
    B. Well Site Pneumatic Pump Requirements
    C. Professional Engineering Certification Requirements

I. Background

    On June 16, 2017, the EPA proposed to stay for 2 years certain 
requirements that are contained within the final rule titled ``Oil and 
Natural Gas Sector: Emission Standards for New, Reconstructed, and 
Modified Sources,'' published in the Federal Register at 81 FR 35824, 
June 3, 2016 (2016 Rule). This action proposed to stay the fugitive 
emissions requirements, the well site pneumatic pump requirements, and 
the requirements for certification of closed vent systems by a 
professional engineer for 2 years, in order to provide the EPA with 
sufficient time to propose, take public comment on, and issue a final 
action on the issues concerning the specific requirements on which the 
EPA has granted reconsideration. 82 FR 27645, June 16, 2017.
    The 2-year proposed stay, if finalized as proposed, would likely be 
determined to be a major rule under the Congressional Review Act. 
Therefore, the 2-year stay would not take effect until 60 days after 
publication or after Congress receives the rule report, whichever is 
later. To avoid such a potential delay, the EPA concurrently proposed 
on June 16, 2017, a 3-month stay which would not qualify as a major 
rule and could become effective upon publication. 82 FR 27641. As such, 
the legal and factual basis for the shorter stay are the same as those 
for the proposed longer stay, except that the shorter stay is intended 
to cover only the period before the longer stay takes effect should the 
EPA finalize both rules.
    Subsequent to the June 16, 2017, proposals (82 FR 27641 and 82 FR 
27645), the Agency has heard a broad range of questions, concerns, and 
constructive suggestions from stakeholders on how the proposed stays 
could be improved. Since the legal and factual basis for both the 
proposed shorter and longer stays are the same, this feedback is 
relevant to both proposals. Therefore, we are issuing a NODA regarding 
this feedback in both rulemakings. Similar to the NODA for the proposed 
2-year stay also published today, this NODA for the proposed 3-month 
stay is not intended to address all of the issues that have been 
raised. Rather, the purpose of this document is to describe and seek 
comment on several ideas with respect to the proposed stay raised by 
stakeholders that may go beyond those for which the Agency sought 
comment in the June 16, 2017, proposals. In this document, we describe 
the specific issues and ideas raised by stakeholders and explain which 
of those ideas we consider to be within or possibly beyond the scope of 
comment already requested. The purpose of this document is to bring 
these ideas to the attention of other stakeholders and the public so 
that they may also provide comments to assist in developing a final 
rule.

[[Page 51795]]

    The feedback the EPA has received since proposing the stays relates 
to the EPA's legal authority to stay these requirements and lack of 
clarity and other challenges in implementing these three requirements. 
With respect to the implementation challenges, the commenters 
recommend, as an alternative to the proposed stays, that the EPA amend 
the 2016 Rule to extend the periods currently provided in the 2016 Rule 
for establishing the necessary infrastructure and phasing in the 
requirements for conducting the initial monitoring survey of fugitive 
emissions and for routing well site pneumatic pump emissions to onsite 
controls or processes. The feedback similarly suggests the need for a 
phase-in period to allow a scale-up of the number of qualified 
professional engineers to meet the demand imposed by the 2016 Rule. The 
EPA is soliciting comments on this recommendation. Specifically, the 
EPA is soliciting relevant data and information, in particular those 
related to the EPA's analyses and assumptions that were used to 
establish the phase-in periods in the 2016 Rule, to help inform the EPA 
why the appropriate duration of these periods may have been 
underestimated, as the feedback suggests. Further, with respect to the 
requirement for certification of closed vent systems by a professional 
engineer, while in the preamble to the 2015 proposed new source 
performance standards (NSPS) the EPA had suggested such certification 
as a potential remedy where a storage vessel is improperly designed,\1\ 
the final 2016 Rule requires such certification for demonstrating 
compliance with not only the storage vessel emission standards, but a 
number of other emission standards, thereby affecting a large number of 
affected sources.\2\ According to the feedback received, the immediate 
high demand for qualified professional engineers to meet this 
certification requirement has made implementation of this requirement 
quite challenging. In light of the feedback, the EPA is soliciting 
comments, data, and any other information that would help the EPA 
determine whether a phase-in period for this requirement is needed and, 
if so, the length of such period.
---------------------------------------------------------------------------

    \1\ 80 FR 56649, September 18, 2015.
    \2\ 40 CFR 60.5411a(d).
---------------------------------------------------------------------------

    As in the NODA for the proposed 2-year stay, the EPA is soliciting 
comment on this feedback, including whether a phase-in period would be 
an appropriate alternative to the proposed stay. The EPA is soliciting 
comment on whether a phase-in period would provide relief for 
implementation challenges described in this NODA and expedite 
regulatory certainty for owners and operators. While the comment period 
on the June 16, 2017, proposal for a 3-month stay closed on August 9, 
2017, comments on this notice may include additional comments on 
statements made in that proposal.

II. Legal Authority

    The EPA received comments from stakeholders on our legal authority 
to stay these requirements or otherwise amend the 2016 Rule to extend 
the ``phase-in'' periods currently provided in that rule.\3\ See Docket 
ID No. EPA-HQ-OAR-2010-0505-10577. Specifically, noting that these 
requirements are not mandated by Clean Air Act (CAA) section 
111(b)(1)(B), the commenter interprets CAA section 111 as authorizing 
the EPA to extend compliance deadlines or establish future compliance 
dates. The commenter also cites section 705 of the Administrative 
Procedure Act (APA) to provide the EPA authority to stay these 
requirements pending judicial review. The commenter interprets the term 
``postpone'' in section 705 of the APA to include ``delay, defer, 
adjourn, shelve, table, and put on hold.'' Id. at 7. Lastly, the 
commenter argues that the EPA's general rulemaking authority under 
section 301(a) of the CAA authorizes a rulemaking staying these 
requirements because ``Congress has not written a `clear impediment to 
the issuance' '' of such stay. Id. at 12 (citations omitted). The EPA 
solicits comments on these legal theories provided in this comment 
document. See Docket ID No. EPA-HQ-OAR-2010-0505-10577.
---------------------------------------------------------------------------

    \3\ While this document specifically addresses the proposed 2-
year stay (82 FR 27645, June 16, 2017), it is discussing the EPA's 
legal authority to stay a rule and, as such, is relevant to the 
proposed 3-month stay.
---------------------------------------------------------------------------

    For the reasons stated below, the EPA has legal authority to amend 
the 2016 Rule to either stay certain provisions or otherwise revise 
certain aspects of the rule. The EPA promulgated the 2016 Rule pursuant 
to section 111(b)(1)(B) of the CAA in accordance with the notice-and-
comment rulemaking procedures under section 307(d) of the CAA. 81 FR 
35828, June 3, 2016. The EPA is using the same statutory authority and 
following the same procedures in the present rulemaking to amend the 
2016 Rule to stay certain requirements for 3 months (as described in 
the June 16, 2017, notice) or make the suggested changes to aspects of 
these requirements as described in this action (i.e., extension or 
provision of ``phase-in'' periods). In addition, section 301(a) of the 
CAA provides the Agency with broad authority to prescribe regulations, 
including revisions to prior rulemakings, as necessary to carry out the 
Administrator's authorized functions under the statute. ``The power to 
decide in the first instance carries with it the power to reconsider.'' 
Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 1980); see 
also, United Gas Improvement Co. v. Callery Properties, Inc., 382 U.S. 
223, 229 (1965); Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C. Cir. 
1977).
    Section 111 of the CAA requires the EPA to list a source category 
under that section if, ``in [the EPA Administrator's] judgment it 
causes, or contributes significantly to, air pollution which may 
reasonably be anticipated to endanger public health or welfare.'' Once 
a source category is listed, CAA section 111(b)(1)(B) requires that the 
EPA promulgate ``standards of performance'' for new sources in such 
source category. In addition, CAA section 111(b)(1)(B) requires the EPA 
to ``at least every 8 years review and, if appropriate, revise'' 
performance standards unless the ``Administrator determines that such 
review is not appropriate in light of readily available information on 
the efficacy'' of the standard. In 1979, the EPA published a list of 
source categories, including Oil and Natural Gas, under section 111(b) 
of the CAA. See Priority List and Additions to the List of Categories 
of Stationary Sources, 44 FR 49222 (August 21, 1979) (``1979 Priority 
List''). In 1985, the EPA promulgated NSPS for this source category 
that addressed volatile organic compound(s) (VOC) emissions from 
leaking components at onshore natural gas processing plants (40 CFR 
part 60, subpart LLL) and sulfur dioxide emissions from natural gas 
processing plants (40 CFR part 60, subpart KKK). In 2012, the EPA 
conducted its required review under CAA section 111(b)(1)(B), and 
promulgated NSPS subpart OOOO, which included updates to subparts KKK 
and LLL standards, as well as additional VOC standards for this source 
category.
    In addition to the mandatory obligations described above, the EPA 
has discretion under CAA section 111(b)(1)(B) to add new standards of 
performance for additional pollutants or emission sources not 
previously covered concurrent with, or independent of, the 8-year 
review. Pursuant to section 111(b)(1)(B) of the CAA, the EPA has 
promulgated new performance standards for previously unregulated 
sources concurrent with the 8-year review. See, e.g., 71 FR 9866 
(February

[[Page 51796]]

27, 2006) (new particular matter standards for boilers); 73 FR 35838 
(June 24, 2008) (new nitrogen oxide standards for additional sources at 
refineries); 77 FR 49490 (August 16, 2012) (new VOC standards for 
additional sources at oil and gas facilities). However, the appropriate 
time for promulgating such new standards may not always align with the 
8-year review cycle. See, e.g., 73 FR 35838, 35859. (The EPA did not 
promulgate performance standards for greenhouse gas emissions as part 
of the 8-year review of the NSPS for refineries because the Agency was 
still in the process of gathering information and reviewing controls.) 
While the EPA could conduct the required periodic review sooner than 
every 8 years, which would potentially allow the EPA to conduct the 
review and set additional standards concurrently, the EPA does not 
believe that the schedule for the statutorily required review should be 
driven by the timing for promulgating additional performance standards 
that are discretionary. On the other hand, there is no reason that the 
EPA's authority and discretion to promulgate such standards should be 
constrained by the timing of the 8-year review. The EPA, therefore, 
reasonably interprets CAA section 111(b)(1)(B) to allow the Agency to 
exercise its discretion to promulgate new performance standards for 
additional sources or pollutants when appropriate (concurrent with or 
independent of the 8-year review).
    Pursuant to this authority under section 111(b)(1)(B) of the CAA, 
the EPA promulgated the 2016 Rule which contained, among other things, 
a number of new performance standards for emission sources not 
previously covered, including the fugitive emissions components at well 
sites and compressor stations, as well as pneumatic pumps at well 
sites.\4\ The EPA promulgated the fugitive emissions requirements for 
well sites and compressor stations pursuant to section 111(h) of the 
CAA, which authorizes the EPA to set a design, equipment, work 
practice, or operational standard where it is not technically feasible 
to prescribe or enforce an emission standard. 80 FR 56593, 56637 
(September 18, 2015). A work practice standard generally consists of a 
set of activities that sources must perform and a time period for 
completing the activities. See, e.g., 40 CFR 60.632 (180 days from 
initial startup to comply with the requirements to detect and repair 
leaks at onshore oil and natural gas processing plants). Similar to 
existing work practice standards, the fugitive emissions requirements 
in the 2016 Rule specify a set of activities (e.g., developing an 
emission monitoring plan, conducting initial and subsequent surveys, 
repair or replacement, and resurvey of fugitive emissions components 
according to the plan) and time frames for performing the activities. 
40 CFR 60.5397a. Specifically, the 2016 Rule specifies a period of time 
(i.e., until June 3, 2017, or 60 days after starting up production, 
whichever is later) for sources to establish the necessary 
infrastructure, develop a monitoring plan, secure the required 
personnel and equipment, and conduct the initial monitoring survey of 
fugitive emissions components at well sites and compressor stations. 81 
FR 35858-9 and 35863.
---------------------------------------------------------------------------

    \4\ The 2016 Rule also includes standards for reducing methane 
emissions from the oil and natural gas sector, as well as revisions 
to the previously promulgated Oil and Natural Gas NSPS (40 CFR part 
60, subpart OOOO).
---------------------------------------------------------------------------

    The 2016 Rule similarly did not establish an emission limit for 
well site pneumatic pumps, but instead requires that emissions from 
well site pneumatic pumps be routed to an available control or process 
onsite, unless a qualified professional engineer certifies that it is 
not technically feasible to do so. As with the fugitive emissions 
requirements, the 2016 Rule similarly provided a period of time (until 
November 30, 2016) for owners and operators to conduct the ground work 
required for routing well site pneumatic pumps to an available onsite 
control or process (or, if it is not technically feasible to do so, for 
obtaining a certification by a qualified engineer of the technical 
infeasibility). 81 FR 35859, June 3, 2016.
    The 2016 Rule also added a requirement that all closed vent systems 
routing emissions from storage vessels, compressors, and pneumatic pump 
affected facilities be certified by a qualified professional engineer. 
This certification requirement is not an emission standard under CAA 
section 111(a)(1) or a design, equipment, work practice, or operational 
standard under CAA section 111(h); it is a compliance measure that 
would provide additional assurance that sources are meeting the 
emission standards for storage vessels, compressors, and pneumatic 
pumps. Some of these emission standards, such as those for storage 
vessels and compressors, were promulgated in 2012 under section 
111(b)(1)(B) of the CAA.
    Through the two June 16, 2017, actions, the EPA is proposing to 
amend the 2016 Rule to stay for 3 months and 2 years, respectively, the 
fugitive emissions requirements, the well site pneumatic pump 
requirements, and the certification requirement described above. Since 
then, the EPA has received suggestions that, instead of staying these 
requirements, the EPA extend the current phase-in periods for the 
fugitive emissions requirements and well site pneumatic pump 
requirements, as well as providing one for the requirement for 
certification of closed vent systems by a professional engineer. 
Agencies have inherent authority to reconsider past decisions and to 
revise, replace, or repeal a decision to the extent permitted by law 
and supported by a reasoned explanation. FCC v. Fox Television 
Stations, Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass'n v. 
State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983) (``State 
Farm''). This includes a decision regarding the appropriate length of 
the phase-in periods provided in the 2016 Rule for specific 
requirements, as well as whether to provide one for phasing in an 
additional compliance assurance measure, or whether to stay these three 
requirements at issue while they are being revised through rulemaking.
    Section 301(a) of the CAA provides the EPA with broad rulemaking 
authority to carry out the CAA. Notwithstanding the potential 
constraint that other parts of the CAA may have on the EPA's authority 
to stay a rule pursuant to section 301(a), See Natural Resources 
Defense Council, Inc. v. Reilly, 976 F.2d 36, 41 (D.C. Cir. 1992), 
there is no such constraint here with respect to staying the fugitive 
emissions requirements, the well site pneumatic pump requirements, and 
the certification requirement in the 2016 Rule, the promulgation of 
which was discretionary and not compelled by CAA section 111(b)(1)(B). 
In a case analyzing a similar general rulemaking authority granted to 
the Federal Reserve Board by the Truth in Lending Act, the Supreme 
Court held quite broadly that, where ``the empowering provision of a 
statute states simply that an agency may make such rules and 
regulations as necessary to carry out the provisions of an act, the 
validity of a regulation promulgated thereunder will be sustained so 
long as it is `reasonably related to the purposes of the enabling 
legislation.' '' Mourning v. Family Publications Service, Inc., 411 
U.S. 356, 369 (1973) (quoting Thorpe v. Housing Authority of City of 
Durham, 393 U.S. 268, 280-81 (1969)). In a CAA section 301(a) case, the 
District of Columbia Circuit Court of Appeals held that CAA section 
301(a) authorizes the EPA to use rulemaking to issue the enhanced 
vehicle inspection and maintenance programs guidance under section 182 
of the CAA. Natural Res. Def. Council, Inc.

[[Page 51797]]

v. EPA, 22 F.3d 1125 (D.C. Cir. 1994). Noting the absence of any 
provision in CAA section 182 preventing issuing such guidance through 
rulemaking, the Court deferred to the Agency's determination that the 
regulation was necessary as long as it provided a reasoned explanation. 
Id. at 1148.
    The EPA's proposed stay of the three requirements at issue, as well 
as the stakeholder-suggested extension or provision of ``phase-in'' 
periods for these requirements, is consistent with the purposes of the 
CAA and, therefore, authorized under section 301(a) of the CAA. The EPA 
promulgated these requirements for purposes of achieving meaningful 
emission reductions under the regulatory schemes established in the 
2016 Rule to complement other emission reduction efforts and address 
certain challenges (e.g., technical infeasibility and time needed for 
building up for necessary equipment and trained personnel). For 
instance, the EPA promulgated both the fugitive emissions requirements 
and a process for applying and obtaining an alternative means of 
emissions limitations (AMEL) with the clear intent to achieve emission 
reductions from currently uncontrolled sources while still allowing 
sources subject to effective existing state fugitive emissions programs 
an avenue to continue implementing such programs, as well as to 
encourage the use of innovative technology. Therefore, in promulgating 
the fugitive emissions requirements, the EPA clearly intended and 
anticipated the implementation of alternatives in lieu of such 
requirements. However, stakeholders indicated that this purpose of the 
2016 Rule was frustrated by the fact that the current AMEL provisions 
are not sufficiently clear to allow sources to take advantage of them. 
Stakeholders suggested that further revision or clarification would be 
required before sources can apply and obtain approval to use an 
innovative technology or implement their current state program in lieu 
of the 2016 Rule requirements. The EPA received input from stakeholders 
stating that without staying the fugitive emissions requirements 
pending the EPA's reconsideration, the regulated entities would incur 
significant and potentially unnecessary additional costs and compliance 
burden to implement the 2016 Rule, and, in some cases, at the expense 
of disrupting or complicating compliance with applicable state 
programs, just to later revert back to what they were doing in the 
first place. These were the consequences that the EPA sought to avoid 
by promulgating the AMEL in the 2016 Rule. While not all states have 
fugitive emissions programs, considering that many states with high oil 
and gas production do have such programs in place,\5\ it is not clear 
that the marginal additional emission reductions achieved during the 
EPA's reconsideration process outweigh the potential disruption to 
existing state programs and company-specific programs. In light of the 
discussion above, the EPA believes that the proposed stay of the 
fugitive emissions requirements pending its reconsideration process is 
reasonable and authorized under sections 111 and 301 of the CAA.
---------------------------------------------------------------------------

    \5\ Including California, Colorado, North Dakota, Ohio, 
Pennsylvania, Texas, Utah, and Wyoming.
---------------------------------------------------------------------------

    With respect to the well site pneumatic pump requirements, the 2016 
Rule acknowledges that routing the pneumatic pump emissions to an 
available onsite control or process may not always be technically 
feasible and, therefore, provides a technical infeasibility exemption 
for such routing except for pneumatic pumps located at a ``greenfield 
site.'' However, some sources could not tell based on the 2016 Rule 
definition of ``greenfield site,'' which was not proposed for notice 
and comment, whether they are ``greenfield sites,'' even though they 
are encountering technical infeasibility, and, therefore, risk being in 
noncompliance. Delaying these requirements until the EPA resolves this 
potential problem through its reconsideration process is consistent 
with the 2016 Rule to require emission reductions from well site 
pneumatic pumps only where it is technically feasible to do so.
    Lastly, as mentioned above, the closed vent certification by 
professional engineer requirement is a compliance measure included in 
the 2016 Rule to provide additional assurance that sources are meeting 
the emission standards for a wide range of equipment, some of which 
have been in place since 2012. The EPA granted reconsideration of this 
requirement because the EPA had not considered its cost and whether the 
additional assurance justifies such expenditure. The EPA's proposed 
stay while conducting this evaluation is clearly consistent with 
section 111 of the CAA, which expressly identifies cost as a factor for 
consideration when promulgating emission standards. See CAA section 
111(a)(1).
    For the reasons stated above, both the proposed stay and the 
suggestion by stakeholders to extend (or provide) the phase-in periods 
are lawful exercises of the EPA's statutory authority and discretion 
under the CAA. The EPA solicits comment on the EPA's legal authorities 
for taking these actions. In addition, as mentioned above, the EPA 
solicits comment on stakeholder input \6\ on the EPA's legal 
authorities to take these actions.
---------------------------------------------------------------------------

    \6\ See, for example, Docket ID No. EPA-HQ-OAR-2010-0505-10577 
and Docket ID No. EPA-HQ-OAR-2017-0346-0329.
---------------------------------------------------------------------------

III. Stakeholder Input on Sources' Ability To Implement Requirements

    In the June 16, 2017, proposal for the 3-month stay, the EPA 
referenced the proposed 2-year stay, in which the EPA explained that it 
is proposing to stay the requirements at issue pending reconsideration 
due to its concern that sources should not be compelled to comply with 
these requirements pending the EPA's reconsideration of issues 
associated with these requirements, as these issues impact the ability 
of a wide range of sources to achieve and show compliance with their 
applicable standards. 82 FR 27642; 82 FR 27646-8, June 16, 2017. As 
explained above, unlike the proposed 2-year stay, the 3-month stay was 
not intended to reflect the time for completing the reconsideration 
process or to resolve the implementation issues discussed in this NODA, 
but rather to help avoid a delay for the proposed longer stay to take 
effect; otherwise, the legal and factual bases for the stay in both 
proposed actions are the same. Therefore, as in the NODA for the 2-year 
stay, the EPA similarly solicits comments on the legal and factual 
bases for the proposed 3-month stay, as well as comments and 
information on the challenges raised in the feedback received since 
proposing the stay.
    Since proposing to stay the requirements pending reconsideration, 
the EPA received feedback from some stakeholders indicating that there 
are additional issues affecting sources' ability to implement the above 
mentioned requirements besides those for which the EPA has granted 
reconsideration.\7\ Some stakeholders suggested that the EPA should 
amend the 2016 Rule by extending the ``phase-in'' periods provided in 
the 2016 Rule for a build-up of the number of trained personnel (i.e., 
certified monitoring survey contractors, qualified professional 
engineers) and equipment (i.e., monitoring instruments) required to 
meet the demand imposed by the fugitive emissions requirements and the 
well site pneumatic pump requirements.

[[Page 51798]]

The EPA had anticipated that during these periods, ``sources will begin 
to phase in these requirements as additional devices and personnel 
become available.'' 81 FR 35859 and 35863. As in the NODA for the 
proposed 2-year stay, we similarly solicit comment on whether more time 
(and how much more) is needed for ``phasing in'' these requirements. In 
addition, the EPA solicits comments in this NODA on whether an 
extension of these phase-in periods rather than the stay for 3 months 
would provide more certainty to the regulated community should there be 
a delay before the longer stay (or extension), if finalized, would take 
effect. Some stakeholders suggested that these concerns may also exist 
with respect to other provisions requiring professional engineer 
certifications.
---------------------------------------------------------------------------

    \7\ See, for example, Docket ID No. EPA-HQ-OAR-2010-0505-11108 
and Docket ID No. EPA-HQ-OAR-2010-0505-12337.
---------------------------------------------------------------------------

    As mentioned above, the EPA previously anticipated that some of 
these issues might be present for a more limited period and, therefore, 
provided in the 2016 Rule a ``phase-in'' period for both the fugitive 
emissions requirements and the pneumatic pump requirements. 81 FR 
35851, 35858-9, 35863, June 3, 2016. Specifically, in regards to the 
fugitive emissions requirements, in light of the large number of 
sources, the EPA concluded that time was needed to allow an increase in 
production of the required equipment and scale-up of trained personnel, 
as well as for sources to establish the groundwork and secure the 
necessary monitoring equipment and personnel. The 2016 Rule, therefore, 
provided a ``phase-in'' period by allowing sources to conduct initial 
monitoring by June 3, 2017, or within 60 days after production starts, 
whichever is later. 81 FR 35858-9, 35863, June 3, 2016. Some 
stakeholders suggested that some sources continue to have difficulty 
securing the necessary equipment and/or personnel to conduct the 
required monitoring survey of fugitive emissions. For a similar reason, 
the 2016 Rule provided a phase-in period until November 30, 2016, to 
connect well site pneumatic pumps to an existing control or process 
onsite. 81 FR 35851, June 3, 2016.
    However, some stakeholders suggested that the time provided in the 
2016 Rule may not have been adequate to accommodate the number of 
affected sources subject to these requirements. In addition, some 
stakeholders indicated that sources that must now comply with these 
requirements upon startup may be particularly affected by these 
challenges. Therefore, the EPA solicits comment and information on 
these challenges that sources are experiencing in carrying out these 
requirements. Further, the EPA is soliciting comment on whether, in 
light of the numerous ongoing compliance issues, the EPA should amend 
the above mentioned phase-in periods in the 2016 Rule instead of simply 
staying the requirements. The EPA additionally is soliciting comment on 
the appropriate length of a phase-in period to address the challenges 
sources are experiencing in carrying out the requirements in the 2016 
Rule.
    Some stakeholders suggested that the challenges regarding acquiring 
necessary equipment and trained personnel may also exist with respect 
to the requirement of certification of closed vent systems by a 
professional engineer. We note that the 2016 Rule does not have a 
phase-in period associated with the closed vent system certification by 
professional engineer requirement, which must be met by a wide range of 
sources (i.e., storage vessels, compressors, and pneumatic pumps), even 
though the EPA acknowledged that securing such professional engineer 
certification may take time. 81 FR 35851, June 3, 2016. The EPA, 
therefore, solicits comment on whether time (and how much) should be 
provided to allow a further building up of the number of professional 
engineers experienced in these requirements to meet the demand posed by 
this certification requirement.
    A stay would mean that sources do not have to comply while the stay 
is in place. It would not, however, change any dates in the 2016 Rule. 
This could create some uncertainty for sources regarding their 
obligations upon expiration of the stay. A change to the phase-in 
periods (or the addition of such a period where the rule does not 
currently provide one) could provide greater certainty to sources. In 
light of this, the EPA solicits comment on whether it is more 
appropriate to extend the phase-in periods in lieu of issuing a 3-month 
stay. The EPA additionally solicits comment on whether a phase-in 
period will provide additional relief and certainty to the regulated 
community. As mentioned above, the EPA solicits comment on the 
appropriate length of time needed to address the challenges sources are 
experiencing in carrying out these requirements in the 2016 Rule and 
the suggestion to extend the ``phase-in'' periods established in the 
2016 Rule for the fugitive emissions requirements and the well site 
pneumatic pump requirements, as well as the suggestion to provide a 
phase-in period for the requirement for certification of closed vent 
systems by a professional engineer.

A. Fugitive Emissions Requirements

    The EPA proposed to stay the fugitive emissions requirements at 
well sites and compressor stations while it reconsiders the process and 
criteria for requesting and receiving approval for the use of an AMEL 
and the applicability of the fugitive emissions requirements to low 
production well sites. 82 FR 27642-3 and 27646, June 16, 2017. These 
issues determine the universe of sources that must implement the 
fugitive emissions requirements. 82 FR 27646. The EPA has received 
feedback from some stakeholders that securing certified monitoring 
survey contractors and monitoring instruments has been more difficult 
than predicted, and, therefore, the EPA is soliciting comment on the 
availability of contractors and monitoring instruments, and the impact 
on owners and operators complying with the requirements of the 2016 
Rule. The EPA is soliciting comment on extending the phase-in period 
and the appropriate length of the phase-in period to allow for an 
adequate build-up of the personnel and equipment required for meeting 
the fugitive emissions requirements. Specifically, the EPA solicits 
comment on whether the impact of this requirement and any feasibility 
issues are relevant to few sources or a systemic issue related to many 
sources.
    The EPA also received feedback regarding the applicability of the 
fugitive emissions requirements to third-party equipment at well sites 
which is ancillary to production (e.g., equipment such as meters owned 
by midstream operators). The 2016 Rule requires that all fugitive 
emissions components at a well site be monitored and repaired, but 
there has been confusion as to the appropriate scope of components that 
are included in the definition of the well site for the fugitive 
emissions requirements. During the public comment period on the 2016 
Rule, the EPA received feedback that ancillary midstream assets (e.g., 
meters) should be excluded from the fugitive emissions requirements 
because they are owned by legally distinct companies from the well site 
owner and operator and could have limited emissions.\8\ The EPA's 
response to this comment was to state in its Response to Comments that 
``the resolution for any leaking components identified during surveys 
can be managed by the operator through cooperative agreements with 
other potential owners at the site.'' \9\ The EPA

[[Page 51799]]

has since received feedback that there are complicated site 
configurations and contractual arrangements that the EPA did not 
consider in the 2016 Rule that could prevent compliance, including 
situations where the third-party equipment could be made subject to the 
2016 Rule based on actions made by another operator.\10\ The EPA is 
soliciting comment on this feedback, specifically, legal and logistical 
issues that could prevent midstream operators, or other operators of 
ancillary third-party equipment, from compliance with the 2016 Rule, 
and suggestions for addressing this issue. The EPA additionally 
solicits comment on the number of contracts that would need to be 
renegotiated and associated burden. The EPA is further soliciting 
comment on whether, in light of the above, the EPA should stay or 
otherwise extend the phase-in period as it applies to third-party 
equipment on well sites until after the EPA has addressed this 
compliance issue.
---------------------------------------------------------------------------

    \8\ See Docket ID No. EPA-HQ-OAR-2010-0505-7237.
    \9\ See Docket ID No. EPA-HQ-OAR-2010-0505-7632, p. 4-282.
    \10\ See Docket ID No. EPA-HQ-OAR-2010-0505-12245 and Docket ID 
No. EPA-HQ-OAR-2017-0346-0328.
---------------------------------------------------------------------------

    The EPA additionally received feedback regarding technical, safety, 
and environmental issues associated with the delay of repair provisions 
in the 2016 Rule. The EPA proposed that if ``repair or replacement [of 
a leaking fugitive emissions component] is technically infeasible or 
unsafe to repair during operation of the unit, the repair or 
replacement must be completed during the next scheduled shutdown or 
within 6 months, whichever is earlier.'' 80 FR 56668, September 18, 
2015. Stakeholders responded with concerns about ``delays lasting 
longer than six months due to availability of supplies needed to 
complete repairs and information regarding the frequency of delayed 
repairs. Some commenters also indicated that in some cases, requiring 
prompt repairs could lead to more emissions than if repairs were able 
to be delayed, for example if a well shut-in or vent blow-down is 
required.'' 81 FR 35858, June 3, 2016. In response to these comments, 
the EPA extended the time a component can be placed on delay of repair 
from 6 months to 2 years, and, in conjunction with this extension, 
added that ``however, if an unscheduled or emergency vent blowdown, 
compressor station shutdown, well shutdown, or well shut-in occurs 
during the delay of repair period, the fugitive emissions components 
would need to be fixed at that time.'' Id.
    Since publication of the 2016 Rule, the EPA has received feedback 
that requiring repair or replacement of fugitive emissions components 
during unscheduled or emergency vent blowdowns could result in natural 
gas supply disruptions, safety concerns, and increased emissions.\11\ 
In particular, stakeholder feedback suggests that compliance with this 
provision could result in prolonged shutdowns impacting natural gas 
supply if necessary parts and skilled labor is unavailable, and 
avoidable blowdowns resulting in greater emissions than the leaking 
component.\12\ This feedback additionally indicates that these events 
may not necessarily result in the blowdown of all equipment located 
onsite and, thus, the equipment needing repair may not been affected by 
the blowdown.13 14 The EPA is soliciting comment on this 
feedback, specifically, the shutdown, shut-in, or blowdown scenarios 
that result in the technical, safety, and environmental issues 
described, and suggestions for addressing these issues. The EPA is 
further soliciting comment on whether, in light of the above, the EPA 
should stay or otherwise extend the phase-in period as it applies to 
equipment requiring delay of repair at well sites and compressor 
stations until after the EPA has addressed this compliance issue.
---------------------------------------------------------------------------

    \11\ See Docket ID No. EPA-HQ-OAR-2017-0346-0328 and Docket ID 
No. EPA-HQ-OAR-2010-0505-12245.
    \12\ Id.
    \13\ Id.
    \14\ Blowdown refers to the release of entrained gas from 
equipment that causes a reduction in system pressure or a complete 
depressurization. For example, a blowdown may occur to reduce line 
pressure and discharge gas to ensure safe working conditions during 
maintenance and repair activities.
---------------------------------------------------------------------------

    As the need for a proposed 3-month stay is contingent upon the EPA 
concluding that either a 2-year stay or an extension of the phase-in 
period is warranted, the comments that the EPA is soliciting are 
equally relevant to this rulemaking. In addition, the EPA solicits 
comment on whether the potential delay is better addressed through a 
short stay or extension of the current phase-in period.

B. Well Site Pneumatic Pump Requirements

    The EPA proposed to stay the requirements for well site pneumatic 
pump standards while it reconsiders the technical infeasibility 
exemption and the definition of ``greenfield site.'' 82 FR 27647, June 
16, 2017. The EPA acknowledges that the technical infeasibility 
exemption that the EPA finalized in the 2016 Rule adopted a different 
approach than previously applied to the oil and gas industry and 
created an unanticipated and unnoticed distinction between 
``greenfield'' (new development) and ``non-greenfield'' sites. For a 
discussion on the technical infeasibility exemption provided in the 
2016 Rule, please see 81 FR 35844-5, June 3, 2016. Some stakeholders 
have suggested that this distinction has caused confusion among owners 
and operators on what sites qualify for the technical infeasibility 
exemption. The EPA received stakeholder feedback that some owners and 
operators may have been unintentionally restricted in the design of new 
sites that, for technical reasons, could not employ controls or 
processes for certain pneumatic pump installations. The EPA is 
soliciting comment on technical constraints of new ``greenfield'' sites 
and specific site designs such as these which present challenges in 
implementing the well site pneumatic pump requirements in the 2016 
Rule. The EPA is, therefore, soliciting comment on extending the phase-
in period for 2 years, the time period the EPA estimates its 
reconsideration process and the issuance of the resulting rule would 
take, so that the EPA may provide the necessary clarification or 
revision in conjunction with its reconsideration process, thereby 
addressing all issues in one rulemaking. As the need for a proposed 3-
month stay is contingent upon the EPA concluding that either a 2-year 
stay or an extension of the phase-in period is warranted, the comments 
that the EPA is soliciting are equally relevant to this rulemaking. In 
addition, the EPA solicits comment on whether the potential delay is 
better addressed through a short stay or extension of the current 
phase-in period. The EPA is also soliciting comment on extending the 
phase-in period and the appropriate length of the phase-in period for 
the well site pneumatic pump requirements as an alternative to the 
proposed stay of these requirements.

C. Professional Engineering Certification Requirements

    The EPA proposed to stay the requirement for closed vent system 
certification by professional engineer while the EPA evaluates the 
benefits, as well as the cost and other compliance burden, associated 
with this requirement. 82 FR 27647, June 16, 2017. Such costs and 
associated burden are significant in light of the number of affected 
sources. Based on the EPA's estimates, approximately 16,000 affected 
sources (i.e., pneumatic pumps, compressors, and storage vessels) came 
online between the proposed rule and the final 2016 Rule, not counting 
those that have and will come online since.

[[Page 51800]]

The EPA received feedback that owners and operators had to reanalyze 
and potentially redesign the closed vent systems in order to meet this 
certification requirement. Subsequent to the proposed stay, the EPA 
received feedback from some stakeholders that owners and operators have 
struggled to obtain professional engineers to complete these 
certifications primarily because of a shortage of professional 
engineers certified in each state of operation with experience in the 
design of these systems. In light of this, the EPA is soliciting 
comment on the availability of professional engineers qualified in each 
state of operation and experienced in the oil and gas field and the 
costs associated with completing the certification requirements in the 
2016 Rule. The EPA additionally solicits comment on the costs of 
reanalyzing and redesigning sites in order to comply with the 
requirements of the 2016 Rule. Lastly, in light of the challenges 
described above, the EPA is soliciting comment on providing a period to 
phase in this certification period as an alternative to staying this 
requirement. As the need for a proposed 3-month stay is contingent upon 
the EPA concluding that either a 2-year stay or a provision of a phase-
in period is warranted, the comments that the EPA is soliciting are 
equally relevant to this rulemaking. In addition, the EPA solicits 
comment on whether the potential delay is better addressed through a 
short stay or provision of a phase-in period. The EPA emphasizes that 
neither the proposed stay (or, in the alternative, provision of a 
phase-in period) for this certification requirement would affect 
sources' obligation to meet the underlying applicable emission 
standards during that time frame. As explained above, this 
certification requirement is not an emission standard, but a compliance 
measure to provide additional assurance that the emission standards are 
being met.

    Dated: November 1, 2017.
E. Scott Pruitt,
Administrator.
[FR Doc. 2017-24341 Filed 11-7-17; 8:45 am]
 BILLING CODE 6560-50-P