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Beware the Camel’s Nose Under the Tent

EPA’s New Climate Enforcement Policy and Third-Party Monitoring Program

Is EPA’s new third-party methane super-emitter monitoring and reporting program the camel’s nose under the tent?

In the classic fable, on a cold night, a camel asks his owner if he could put his nose inside the owner’s tent to keep warm; and through a series of seemingly modest incremental requests, the camel ends up entirely in the tent, displacing the owner to the cold outside.  This tale counsels us to be wary of seemingly small (even benign) incremental actions that could grow to create even larger issues, with more significant consequences, down the road.

Far from an incremental or benign action, EPA’s new methane rules for the oil and natural gas sector (see 40 CFR Part 60, Subpart OOOOb) authorize certified third parties to report to EPA potential “super-emitter events” which entail methane emissions of 100 kg/hr (220.5 pounds per hour) or greater.  This new program allows EPA to utilize methane monitoring data collected and submitted by independent third parties to identify large methane events and require the facility owner/operator to investigate, report, and halt any such events or repair large leaks.

This program fundamentally changes how air regulations are enforced by outsourcing some inspections to the public and compelling operators to either disprove or publicly confirm the findings – and activists could easily use those confirmations to file citizen suits against the operator in federal court.

In contrast to the draft rules, under the final rules, EPA must pre-certify third parties to accept super-emitter data from them.  The rules do not authorize the certified third parties to enter any lands or facilities for data collection.  The final rules clarify that certified third parties can only submit data from authorized “remote sensing technologies” such as satellites or aerial detection surveys.

The process is seemingly straight-forward; and expedited.  Certified third parties must notify EPA within 15 calendar days after detecting a super-emitter event. Upon receiving a third-party notification and data on a super emitter event, EPA will review to determine if it meets EPA’s screening criteria.  If so, then EPA notifies the owner/operator of the emitting facility, who must take immediate corrective action by initiating an investigation within 5 calendar days and report the results to EPA within 15 days after receiving notice.  At that point, EPA publicly discloses the release and the source. If the owner/operator is non-responsive, EPA intends to publish the third-party notification if EPA believes it accurately identifies the source of emissions.

Not coincidentally, just four days before EPA’s final methane rules were published in the Federal Register on March 8, 2024, the Environmental Defense Fund (EDF), in partnership with Google, announced the launch of its new methane detection satellite, called MethaneSAT.  This satellite launched via a SpaceX rocket from Vandenberg Space Force Base in California.

According to its press release, EDF’s stated intent is to collect methane emissions data from agricultural operations and oil and gas operations.  EDF’s goal is to provide “near-real time” emissions data to regulators, investors, and governments. This data will be free to the public through a Google Earth search engine platform.  Will EPA certify EDF as a qualified third-party for EPA’s super emitter program?  We will probably find out sooner rather than later.

Importantly, the EPA’s Super-Emitter Monitoring and Response Program should also be viewed and analyzed through the lens of EPA’s new Climate Enforcement and Compliance Strategy announced last fall. This memorandum directs EPA’s enforcement and compliance program to “prioritize enforcement and compliance actions to mitigate climate change.”

This Climate Enforcement and Compliance Strategy memorandum followed one month after EPA released its very first climate change national enforcement and compliance initiative.  For this initiative, EPA identified mitigating climate change as the first of six National Enforcement and Compliance Initiatives for FY 2024-2027.  According to EPA, this initiative will focus on reducing emissions of the highest impact pollutants such as methane and other greenhouse gases.  Additional information on EPA’s overall strategic climate strategy and enforcement initiative are available here.

The camel’s nose is under the tent.  As satellite and other detection technologies continue to evolve to be able to detect and identify smaller emission sources, does EPA’s third-party monitoring and reporting program expand to include them (i.e. decrease the emissions threshold)? Only time will tell, but considering EPA’s recent climate enforcement strategy, and the demonstrated trend of continued regulatory creep over the past decade plus, it is wise for companies to think proactively about risk management strategies related to compliance and enforcement in this rapidly evolving arena.

Beatty & Wozniak will be hosting an invitation only webinar for clients in the near future to discuss proactive strategies for risk management and compliance, and best practices for responding to investigations and enforcement actions.

Please contact Bret Sumner, Chris Colclasure, or Jim Martin if you have any questions or would like more information.