On November 2, 2017, the New York State Department of Environment Conservation ("NYSDEC") provided notice to attendees of the Independent Oil and Gas Association of New York ("IOGANY") conference that it will be proposing a new rule for air emissions associated with the oil and gas industry. The NYSDEC rule would implement the reasonably available control technology ("RACT") requirements for volatile organic compounds ("VOCs"), and regulate methane omissions, from existing sources in the oil and gas sector.
The federal New Source Performance Standard ("NSPS") contained in 40 CFR Part 60 Subpart OOOOa was issued by the United States Environmental Protection Agency ("EPA") in 2016. EPA issued its Control Technique Guidelines document (the "CTG") for the oil and gas NSPS on October 20, 2016, which provides recommendations for state agencies to consider in determining their state's RACT requirements associated with the NSPS. The issuance of the CTG on October 20, 2016 means that affected states have to implement RACT requirements into their state regulations by October 20, 2018.
The new NYSDEC rule will apply to existing sources of methane and VOCs in the oil and gas industry, including emissions associated with: gathering, production, boosting, transmission, and storage. Although, according to NYSDEC, the focus of the new rule will be on leaks, the new rule is also expected to include requirements associated with pumps, valves and tanks and will require information to be provided to NYSDEC related to the type of equipment used.
On April 18, 2017, EPA issued a 90-day stay of the 40 CFR Part 60 Subpart OOOOa compliance date for the fugitive emissions monitoring requirements. On June 12, 2017 EPA proposed a two-year stay of the NSPS's fugitive emissions, pneumatic pump and professional engineer certification requirements. On July 3, 2017, the U.S. Court of Appeals for the D.C. Circuit in Clean Air Council, et al. v. E. Scott Pruitt, vacated EPA's 90-day stay, but did not rule on the two-year stay. Because the proposed two-year stay is based on similar reasoning as the 90-day stay that was vacated, and to withstand judicial review, on November 1, 2017 EPA issued a notice of data availability ("NODA") regarding EPA's legal authority to amend the 2016 NSPS rule to either stay certain provisions or otherwise revise certain aspects of the rule. EPA will accept public comment on the NODA for 30-days after publication in the Federal Register. Since the two-year stay has not been finalized yet by EPA, the 40 CFR Part 60 Subpart OOOOa compliance requirements and deadlines remain in effect.
When asked whether EPA's actions on the NSPS will impact NYSDEC's rulemaking, NYSDEC responded that, as of right now, New York State is moving forward to promulgate a rule that regulates emissions of VOCs and methane from the oil and gas industry that is consistent with the CTG. Therefore, it is not clear what impact, if any, an EPA stay of the federal NSPS will have on NYSDEC's promulgation of this new rule.
If you would like advice and assistance on how to be involved in the development of NYSDEC's new oil and gas regulations, EPA's NODA, or navigating the laws and regulations applicable to the oil and gas industry in New York, please contact Danielle Mettler-Lafeir at dmettler@barclaydamon.com or either Co-Chair of the Environmental Practice Area Frank Bifera at fbifera@barclaydamon.com or Yvonne Hennessey, at yhennessey@barclaydamon.com.