EQB to consider revised final VOC rulemaking at June meeting

The following article appears in the June 2022 issue of The PIOGA Press.

The Environmental Quality Board (EQB) is set to consider on June 14 a revised final version of its volatile organic compounds (VOC) rulemaking, this time applying only to unconventional wells and facilities.

The EQB in March had adopted a final regulation imposing requirements intended to reduce VOC emissions at both conventional and unconventional facilities, with the rulemaking scheduled to go before the Independent Regulatory Review Commission (IRRC) at the commission’s May 19 meeting. However, on May 4 EQB withdrew the final rule, stating that the “rulemaking would be submitted at a later time” (May PIOGA Press, page 1).

Prompting the withdrawal, according to the Department of Environmental Protection, was an objection raised by the Republicans on the House Environmental Resources and Energy Committee that the regulation did not comply with provisions of Act 52 of 2016 requiring separate rulemakings for conventional oil and gas operations.

Prior to the withdrawal, PIOGA had joined with the Pennsylvania Grade Crude Oil Coalition and the Pennsylvania Independent Petroleum Producers in a lawsuit before the Commonwealth Court seeking to immediately halt final publication of the rulemaking known as “Control of VOC Emissions from Oil and Natural Gas Sources” unless the scope of the rule was clarified to follow the provisions of Act 52 requiring that rulemakings concerning conventional oil and gas wells and unconventional wells be undertaken separately. The original version of the rulemaking was undertaken without considering sources of VOC emissions from conventional oil and gas wells, well sites, and associated equipment separately and independently from those related to unconventional wells.

It is not clear what role the lawsuit filed April 25 in Commonwealth Court (No. 249 MD 2022) by the three trade associations representing conventional oil and gas producers played in DEP’s decision to withdraw the VOC rulemaking from IRRC’s May 19 meeting and to resubmit to EQB, as that lawsuit sought not to jeopardize the Commonwealth’s receipt of Federal Highway funds by not asking for the rulemaking to be invalidated completely. The lawsuit asked that the rulemaking be invalidated only to the extent it applies to conventional oil and gas wells, well sites, and associated equipment and emission sources.

PIOGA General Counsel Kevin Moody stated: “While the revised rule’s limitation to only unconventional oil and gas wells, well sites, and associated equipment and emission sources provides some of the relief our lawsuit seeks, DEP’s position that the Act 52 provision we’re relying on applies only to rulemakings under the Oil and Gas Act is still a problem.”

In the executive summary of the revised regulation applying to only unconventional facilities, DEP continues to contend that Act 52 is not a factor in the rulemaking, stating that “Act 52 applies to rulemakings promulgated under title 58 Pa.C.S. Since this final-form rulemaking is being promulgated under the [Pennsylvania Air Pollution Control Act] in Title 35, the requirements of Act 52 do not apply. Even so, the Board amended this final-form rulemaking to clarify that the control measures are only applicable to unconventional sources of VOC emissions.”

The preamble to the revised final rulemaking states that DEP will develop a separate rulemaking for VOC emissions at conventional well sites.

The department has been working against a deadline that potentially could mean loss of federal highway funding for Pennsylvania. DEP indicated it would make the required submissions for both the conventional and unconventional rulemakings by December 16 to avoid federal sanctions.