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CA Citizen’s Suit Settlement Puts Pressure on PA to Implement Air Pollution Control on VOC Emissions

Updated: Sep 14, 2022

A proposed consent decree that would settle a federal citizen’s suit filed in California regarding control emissions of volatile organic compounds from oil and gas industry sources could have an impact right here in Pennsylvania.

That’s because the decree, published Aug. 21, would require the U.S. Environmental Protection Agency to find that Pennsylvania failed to submit proposed revisions to its State Implementation Plan (SIP) required by the Clean Air Act regarding the control of the volatile organic compounds (VOCs) emitted by the oil and gas industry in the Keystone State.

Such a finding would be required by Oct. 30, 2020.  

But let’s back up a minute: Under section 110(c) of the Clean Air Act, an EPA finding that a state has failed to submit required revisions to its SIP, gives EPA two years to promulgate its own regulations and impose them on the state to ensure that requirements are being met, albeit belatedly.  

A state may, however, submit its own proposed SIP revisions to EPA during that two years, which EPA is free to approve, assuming the revisions meet the Clean Air Act’s requirements.

The Clean Air Act requirements at issue arise out of a Control Techniques Guideline (CTG) for the Oil and Natural Gas Industry that EPA published in 2016 that provides guidance to the states as to what constitutes Reasonably Available Control Technology (RACT) for the control of VOC emissions. It should be noted that the Control Techniques Guideline is not itself a regulation.  

The Clean Air Act requires states with ozone nonattainment areas and those in the Ozone Transport Region (which includes Pennsylvania), to revise their SIPs to ensure sources covered by the Control Techniques Guideline implement RACT to control their VOC emissions.  

By way of background: Under the Clean Air Act, facilities covered by the 2016 Control Techniques Guideline in all areas of Pennsylvania (not just ozone nonattainment areas) are required to implement RACT to control their VOC emissions. The act gives the states two years to submit the required SIP revisions to EPA following the publication of a Control Techniques Guideline.  

It is important to note that states are not bound by a Control Techniques Guideline on how they implement RACT – they are free to come up with their own approaches to satisfy the Clean Air Act’s requirement.  

However, the emission limits contained in a Control Techniques Guideline establish a presumption for how the RACT requirement must be met. 

“A state that departs from the recommendations in a CTG must, therefore, establish to EPA’s satisfaction that the VOC controls in its proposed regulations satisfy the RACT requirement,” GASP’s senior attorney John Baillie explained. 

Pennsylvania failed to submit proposed revisions to its SIP that would require sources covered by the 2016 Oil and Gas Control Techniques Guideline to control their VOC emissions within two years of EPA’s publication of that Control Techniques Guideline.  

“In fact, Pennsylvania did not publish proposed rules to limit VOC emissions from sources covered by the 2016 Oil and Gas Control Techniques Guideline until earlier this summer,” Bailie said. “Because those proposed rules depart from the recommendations of the CTG in several respects, it is not certain that they meet the RACT requirement.”

“Assuming that the Consent Decree is approved, we may find ourselves watching a race between the rule maker at two bureaucracies,” GASP Executive Director Rachel Filippini said. “What will happen first? Will Pennsylvania come up with its own regulations to control the oil and natural gas industry’s VOC emissions requiring the oil and natural gas industry to meet the RACT requirement, or will EPA write its own rules and impose them on industry sources in Pennsylvania?” 

A copy of the proposed consent decree is available by clicking through EPA’s website. EPA is accepting public comments on the proposed consent decree through Sept. 21.  

Editor’s Note: Stay tuned – we will keep you updated as this develops.

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