Earlier this week, EPA published its proposed new methane regulations for the oil and gas sector. These new rules will have significant practical implications for the industry and have the potential to set new precedent for EPA’s authority under the Clean Air Act to address climate change for other industries as well. While the proposal is over 150 pages long, it does not include the actual text of the proposed rules, promising instead to provide proposed text in a supplemental notice early next year.

EPA’s proposal includes three separate but related actions. First, EPA is revising the existing “New Source Performance Standards” (NSPS) in Subpart OOOO and Subpart OOOOa in response to Congress’ use of the Congressional Review Act to disapprove changes to those rules adopted by the Trump administration, which limited the scope of the regulations. Congress’s disapproval of those changes already re-expanded the scope of the rules to once again include transmission and storage in addition to production and processing, but EPA’s proposal makes the full scope of the rules clearer and also rolls back other changes made by the Trump EPA.

Second, EPA is updating the NSPS requirements for oil and gas facilities in a new Subpart OOOOb that will include additional and potentially more stringent requirements for all sources constructed, modified, or reconstructed after the date of publication for the proposal (November 15, 2021). The new requirements in Subpart OOOOb will take effect for new, modified, and reconstructed sources as soon as EPA finalizes them, which is expected by the end of next year.

Finally, and perhaps most importantly, EPA is proposing “emission guidelines” that will require states to adopt rules for implementing the new NSPS requirements for all existing oil and gas facilities, regardless of when they were constructed or last modified. The rule for existing sources will be codified separately as a new Subpart OOOOc that will instruct states on how to develop the required plans. Although not included in this proposal, EPA also may later develop a federal plan (in yet another subpart) to implement the emission guidelines in any states that fail to submit an approvable plan.

The proposal presents many important questions for comment. For example, EPA seeks comment on whether EPA should allow sources to use “alternative measurement technologies” to identify methane leaks that must be repaired. If allowed, EPA suggests traditional monitoring may be needed on a less frequent basis, but EPA also seeks comment on whether to require continuous monitoring.

EPA also asks stakeholders to weigh in on whether EPA should include a provision allowing private citizens, environmental organizations, and community action groups to identify leaks and force facilities to take action to address them. Given the high-profile nature of the oil and gas industry, such a provision could present a significant concern, particularly for portions of the industry already under heavy scrutiny.

EPA also seeks input on whether to begin regulating different types of emission sources not yet covered by the existing Subpart OOOO and Subpart OOOOa requirements. In particular, EPA’s proposal calls out abandoned wells, pigging operations, pipe blowdowns, and tank truck loading as potential targets for new standards as part of its rulemaking effort.

With the publication of the proposal, the comment period has begun — comments are due by January 14, 2022, unless EPA grants an extension, and virtual public hearings have been scheduled for November 30 and December 1, 2021. The supplemental proposal containing the regulatory text EPA has promised may offer another opportunity for comment, but EPA may also try to limit the scope of comments at that point, depending on the responses it receives in this initial round.