Sidley Environmental Trends

Topics discussed this week include

  • EPA proposes rescinding Obama-era leak repair provisions for appliances using substitute refrigerants.
  • BLM releases revised 2016 Methane and Waste Prevention Rule.
  • EPA denies petitions by Delaware and Connecticut on cross-state emissions.
  • D.C. Circuit upholds decision to vacate 2008 ozone NAAQS implementation rule.

EPA proposes rescinding Obama-era leak repair provisions for appliances using substitute refrigerants. On September 18, 2018, the U.S. Environmental Protection Agency (EPA) issued a proposed rule to rescind the November 18, 2016 rule that extended leak repair provisions to appliances using substitute refrigerants. Previously, these provisions applied only to refrigerants containing ozone-depleting substances. A common substitute refrigerant is hydrofluorocarbons. EPA is also seeking comment on rescinding other provisions that were applied to substitute refrigerants. EPA will hold a public hearing on the proposal 15 days after its publication in the Federal Register and will provide a 45-day public comment period.

BLM releases revisions to 2016 Methane and Waste Prevention Rule. On September 18, the Bureau of Land Management (BLM) issued its final rule rescinding provisions finalized in a 2016 rule regulating methane leaks from oil and gas development activities on federal and Indian lands. The 2016 rule imposed federal rules governing waste of natural gas from venting, flaring and leaks during oil and natural gas production activities on onshore federal and Indian leases; clarify when produced gas lost through venting, flaring or leaks is subject to royalties; and clarify when oil and gas production may be used at the well-site without royalty payment. The 2016 rule applied to all wells producing federal and Indian oil and gas and regulated new, modified and existing sources of methane emissions on federal and Indian leases, units and communitized areas. The new rule explains that the costs of the 2016 rule do not justify its benefits and thus rescinds these provisions consistent with current administration policy and direction in Executive Order 13783, Promoting Energy Independence and Economic Growth. The California and New Mexico Attorneys General have challenged the new rule in court, alleging violations of the Administrative Procedure Act, the Mineral Leasing Act and the National Environmental Policy Act. The new rule follows EPA’s decision earlier this month to revise the New Source Performance Standards for new and modified oil and gas sources.

EPA denies petitions by Delaware and Maryland on cross-state emissions. On September 14, EPA issued its final decision to deny petitions from Delaware and Maryland asking EPA to impose direct controls on sources in other states. Delaware submitted four petitions under Section 126(b) of the Clean Air Act (CAA), each alleging good-neighbor violations by individual sources located in Pennsylvania or West Virginia with respect to the 2008 and 2015 ozone National Ambient Air Quality Standards (NAAQS). Maryland submitted a single petition under CAA Section 126(b), alleging good-neighbor violations by 36 electric generating units in five states with respect to the 2008 ozone NAAQS. EPA denied the petitions on various grounds. EPA explained that its modeling for the relevant years shows no air quality problems in Delaware with respect to either NAAQS. Additionally, EPA determined that cost-effective control technologies are already in place for the sources identified in the petitions, so the agency would not impose additional control measures. Maryland has indicated it will challenge EPA’s decision in court.

D.C. Circuit upholds decision to vacate 2008 ozone NAAQS implementation rule.  In an order issued on September 14, the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) denied a petition to reconsider its February 2018 decision on the 2008 ozone NAAQS implementation rule. In February, the court held that EPA unlawfully revoked the 1997 ozone NAAQS standard of 84 parts per billion (ppb) through the implementation rule and could not allow areas that still had not met the 1997 standard to avoid deadlines associated with that standard. As part of Friday’s order, the court stayed until February 16, 2019 vacatur of the implementation rule provisions exempting “orphan” areas — those areas designated nonattainment for the 1997 ozone NAAQS but that met the 2008 ozone NAAQS of 75 ppb — from ensuring that transport projects do not increase air pollution.