EPA Clarifies Permissible Flaring for Associated Gas Producers Following Phase-Out Deadlines
On May 1, the U.S. Environmental Protection Agency (EPA) clarified when oil and gas producers may continue flaring "associated gas" after phase-out deadlines for routine flaring. Associated gas is a byproduct of crude oil production that has historically been burned off as waste due to being uneconomical to capture and transport, or for safety purposes.
Background on the Rulemaking About Flaring
Under 40 CFR § 60.5377b of the New Source Performance Standards (NSPS), EPA applies three different associated-gas flaring standards depending on when the well commenced construction. Wells that started construction on or before December 6, 2022 are existing sources regulated through state plans implementing EPA’s Emission Guidelines, rather than under the NSPS, and the current deadline for state plan submittals to EPA is January 22, 2027.
Operators of wells constructed between December 6, 2022 and May 7, 2024 are permitted to continue routine flaring of associated gas if they formally demonstrate and document annually that routing the gas to a sales line or other beneficial alternative is technically or economically infeasible, and ensure the flare achieves at least a 95% reduction in methane emissions.
Wells that commenced construction between May 7, 2024 and May 7, 2026 were allowed to flare during the phase-in period but were required to phase out routine flaring by May 7, 2026. Beginning May 7 of this year, those wells, and any new wells that begin construction after that date, must route their associated gas to a gathering or sales pipeline, recover the associated gas and use it as an onsite fuel source or other beneficial use, or recover the associated gas and reinject it into a well. This requirement encourages reducing greenhouse gas emissions and resource waste.
However, as producers approached the phase-out deadlines last month, key questions arose regarding "allowable" flaring, such as in scenarios where flaring is necessary for safety and maintenance or where infrastructure for gas capture is unavailable, which is a frequent issue in several shale fields, such as the Permian Basin, spanning parts of Texas and New Mexico, and the Williston Basin, spanning portions of North and South Dakota.
Key Clarifications in the Recent Guidance
The clarification reaffirms that flaring remains a permissible and necessary practice during emergency situations, maintenance activities, and when required for safety reasons. It emphasizes that producers will not be penalized for flaring events that are essential to protect workers or prevent equipment failure.
The clarification also distinguishes "routine" flaring from flaring required due to lack of pipeline capacity or gathering infrastructure. Critically, EPA confirmed that the temporary interruption provision at 40 CFR § 60.5377b(d)(3), which generally allows flaring for up to 30 days per event during temporary interruptions in gas recovery operations, remains available when downstream pipeline capacity or gathering infrastructure is unavailable for reasons outside the operator's control.
By defining the specific conditions under which the phase-out applies, EPA aims to reduce the risk of enforcement actions for producers acting in good faith to balance production realities with their environmental obligations.
What Does This Mean for Producers?
The clarification provides a much-needed reprieve from the threat of enforcement for conditions outside of producers’ control. It allows them to better align their capital investments with realistic timelines for infrastructure development, and avoids penalizing them for shortcomings in midstream capacity.
Still, producers should remain diligent. While EPA is offering greater flexibility, operators remain subject to stringent documentation requirements to show that any flaring qualifies as a permitted, non-routine exception. Operators should review their current flaring logs and internal compliance protocols to ensure they align with the newly clarified federal standards. As EPA and states continue to refine flaring rules, operators should closely monitor guidance and ensure compliance programs are calibrated to evolving enforcement expectations.
If you have any questions about current or future regulations of air emissions, please reach out to Blake Donewar, Brad Boudreaux or any member of the Phelps Environmental team.
