NSPE Fights EPA’s Attempt to Undermine PEs In Critical Rulemaking

September/October 2017

NSPE Today: Policy Perspectives
NSPE Fights EPA’s Attempt to Undermine PEs In Critical Rulemaking

BY ARIELLE EISER

construction siteNSPE is fighting the Environmental Protection Agency’s proposed halting of certain requirements of a major final rule on oil and natural gas emissions, including requiring a professional engineer to perform critical functions to meet performance standards. NSPE’s Executive Director Mark Golden testified before an EPA panel and submitted formal public comment urging the EPA to enforce the current requirements and retain the provisions for a professional engineer in any revised rulemaking.

In 2016, the Environmental Protection Agency finalized a multiyear rulemaking process to revise and update emission standards for new, reconstructed, and modified sources in the oil and natural gas sector. NSPE submitted public comment to the EPA calling for strengthened safety standards that require a professional engineer. The final rule incorporated these recommendations and asserted a strong, well-reasoned, and well-supported rationale for the need for PEs to be in responsible charge on all engineering projects, both in an independent third-party capacity as well as in an in-house role.

However, with the change in administration, the EPA has taken action to halt the rule. An initial 90-day stay was implemented by the Trump administration, and an additional three-month stay and two-year stay were proposed for public comment. The US Court of Appeals for the District of Columbia struck down the initial 90-day administrative stay. The court, in its decision, notes that “a lengthy discussion of the ‘costs and benefits’” went into the rule, including both industry and public comments on the PE certification requirements. More than 7,000 comments were received and more than 600 documents were made part of the final rule. However, it is the agency’s prerogative to reconsider the rule. Therefore, the 2016 rule currently remains in effect after the court’s decision but the new rulemaking process continues.

NSPE, acting for professional engineers in all disciplines and the public they serve, immediately responded to this effort to undermine the PE’s role. “There is no reason or basis for displacing properly enacted final rules at this time,” Golden testified to the EPA. “And to stay the rules requiring involvement of licensed professional engineers creates real and unnecessary risks to the public health, safety, and welfare in the interim.”

Concerns over a failure to provide for appropriate involvement of professional engineers are, unfortunately, not mere hypotheticals. As Golden pointed out, to cite just one example, in August 2015, a federal work crew from the EPA caused a “blowout” of over three million gallons of untreated toxic wastewater from the abandoned Gold King Mine near Durango, Colorado. Not only was this a public safety crisis, but it also required extremely costly remediation. Postdisaster assessment of the blowout found that a licensed professional engineer was not in responsible charge of the EPA’s project at the mine, as required under Colorado statute.

The public interest is best served when a professional engineer is in responsible charge of engineering projects, Golden noted, and the 2016 rule recognized this essential fact. Any attempt to remove these provisions puts the public at great risk.

Immediately following Golden’s public testimony, NSPE submitted formal public comment as part of the record. NSPE expressed deep concern that the EPA is reconsidering the requirement for a professional engineer to certify the closed vent system design and capacity assessment, as well as any technical infeasibility determination relative to controlling pneumatic pumps at well sites. The EPA, in its careful consideration and determination of the final 2016 rule, recognized the unique qualifications, expertise, and the legal and ethical duty of professional engineers to hold paramount the public health, safety, and welfare in their designs, construction, and observations. While NSPE recognizes the EPA can also consider costs, our shared foremost responsibility must be to ensure public health and safety.

NSPE and the professional engineers it represents share a common purpose with the EPA in ensuring that the United States exemplifies the best engineering standards in the world. NSPE commits to remaining fully and constructively engaged in the new rulemaking process to ensure we meet these standards.

Arielle Eiser is NSPE’s senior government relations manager.