EPA Issues Final Rule on Air Emissions Created during Fracking

"It isn't pollution that's harming the environment. It's the impurities in our air and water that are doing it." - Dan Quayle

Last fall, I reported on the United States Environmental Protection Agency's (EPA) proposed rule to regulate air emissions from fracking operations.  After publishing the proposed rule, EPA conducted five separate public meetings on the proposed rule and received over 156,000 comments.  Clearly, the public interest from the regulated community and those who are concerned with the environmental and health effects of fracking is intense, as evidenced by a Colorado School of Public Health report that concluded that health impacts related to air emissions during well completion are significant.  On April 18, 2012, EPA published its final rule.

The final rule made significant changes from the proposed rule.  As with the proposed rule, EPA focuses its regulatory efforts at requiring well developers to institute "green completion" procedures.  That is, the gases created during the well exploration and development process must be reduced.  However, unlike the proposed rule, EPA's final rule provides for a transition period in which well developers can either reduce emissions through flaring of gases or the use of green completion techniques.  This transition period concludes on January 1, 2015.

One reason for this change is that the equipment used for green completions is not available in numbers necessary to achieve compliance at the thousands of fracking sites throughout the United States.  EPA added additional flexibility for the regulated community by focusing on performance of green completions, rather than imposing specific technological requirements.  The final rule also does not cover all wells, as some green completion technology is not appropriate for low-pressure wells.  Those well developers who want to use green completions before the deadline may avoid applying for new permits that would normally be required when an air emission source modifies its processes.

Modern environmental regulation relies significantly on self-reporting obligations, which avoids the need for an army of inspectors to canvas regulated facilities (and the violation of reporting rules is prosecuted strictly with significant penalties for noncompliance).  The final rule provides more flexibility from the proposed rule's reporting requirements.  Notification to EPA of anticipated completions can be done by sending an email two days before completion.  The developer can also comply by meeting state pre-notification requirements.  There are annual compliance reports that a senior official must certify, so whoever certifies is obligated to report accurately or face significant penalties, including criminal ones.

The EPA final rule is the result of its response to litigation filed by environmental groups to force the Agency to regulate air emissions from oil and gas well operations under the Clean Air Act.  The final rule will eventually be published in the Federal Register, after which it will become effective in 60 days (likely sometime in July).  With the exponential growth of fracking operations in the United States, this rule has the potential of being quite far reaching.  Ultimately, EPA hopes that the rule will reduce emissions of hazardous air pollutants and also allow well developers to use and profit from gases that were previously wasted during the well completion process. 

The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney.  He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer.  In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a former Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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