Amendments to Federal Implementation Plan for Managing Air Emissions From True Minor Sources in Indian Country in the Oil and Natural Gas Production and Natural Gas Processing Segments of the Oil and Natural Gas Sector, 20775-20786 [2018-09652]
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Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Proposed Rules
2018, from 5:30 p.m. until 7:30 p.m.
EST.
ADDRESSES: You may submit comments,
identified by ‘‘PA–166–FOR; Docket ID:
OSM–2017–0008’’, by either of the
following two methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. The proposed rule
has been assigned Docket ID: OSM–
2017–0008. If you would like to submit
comments through the Federal
eRulemaking Portal, go to https://
www.regulations.gov and follow the
instructions.
• Mail/Hand Delivery/Courier: Mr.
Ben Owens, Chief, Pittsburgh Field
Division, Office of Surface Mining
Reclamation and Enforcement, Three
Parkway Center, Second Floor,
Pittsburgh, PA 15220.
Instructions: For detailed instructions
on submitting comments and additional
information on the rulemaking process,
see III. Public Comment Procedures in
the SUPPLEMENTARY INFORMATION section
of the proposed rule published on
March 12, 2018.
Public Hearing: The public hearing
will be held at the Double Tree by
Hilton Pittsburgh-Green Tree, 500
Mansfield Avenue, Pittsburgh,
Pennsylvania 15205; phone number:
412–922–8400, on Tuesday, May 1,
2018, from 5:30 p.m. to 7:30 p.m. EST.
Those wishing to provide oral testimony
need to register between 5:00 p.m. and
5:30 p.m.
Docket: For access to the docket to
review copies of the Pennsylvania
regulations, the relevant amendment, a
listing of any scheduled public hearings,
and all written comments received in
response to this document, you must go
to the address listed below during
normal business hours, Monday through
Friday, excluding holidays. You may
receive one free copy of the amendment
by contacting OSMRE’s Pittsburgh Field
Division; or the full text of the program
amendment is available at
www.regulations.gov.
In addition, you may review a copy of
the amendment during regular business
hours at one of the following locations:
Mr. Ben Owens, Chief, Pittsburgh
Field Division, Office of Surface Mining
Reclamation and Enforcement,
Appalachian Regional Office, 3 Parkway
Center, Second Floor, Pittsburgh, PA
15220, Telephone: (412) 937–2827,
Email: bowens@osmre.gov.
Mr. William Allen, Chief, Permitting
and Compliance, Bureau of Mining and
Reclamation, Pennsylvania Department
of Environmental Protection, Rachel
Carson State Office Building, P.O. Box
8461, Harrisburg, PA 17105–8461,
Telephone: (717) 783–9580, E-Mail:
wallen@pa.gov.
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Mr.
Ben Owens, Chief, Pittsburgh Field
Division, Telephone: (412) 937–2827.
Email: bowens@osmre.gov.
SUPPLEMENTARY INFORMATION: On March
12, 2018, we published a proposed rule
that would revise the Pennsylvania
program. By letter dated August 4, 2017
(Administrative Record No. PA 899.00),
Pennsylvania sent us an amendment to
its program under SMCRA (30 U.S.C.
1201 et seq.). The Pennsylvania General
Assembly recently amended the
BMSLCA to include language clarifying
the circumstances where a finding of
presumptive evidence of pollution is
not warranted under the
Commonwealth’s Clean Streams Law.
A. By way of State Bill 624,
Pennsylvania proposes additional
language to the BMSLCA, Section 5(i)
that states: ‘‘In a permit application to
conduct bituminous coal mining
operations, subject to this act, planned
subsidence in a predictable and
controlled manner which is not
predicted to result in the permanent
disruption of premining existing or
designated uses of surface waters of the
Commonwealth shall not be considered
presumptive evidence that the proposed
bituminous coal mining operations have
the potential to cause pollution as
defined in section 1 of the act of June
22, 1937 (Pub. L. 1987, No. 394), known
as ‘‘The Clean Streams Law’’.
B. Further, Pennsylvania proposes
additional language to BMSLCA,
Section 5(j) as follows: ‘‘The provisions
of subsection (i) shall only apply if: (1)
A person submits an application to
conduct bituminous mining operations
subject to this act to the department that
provides for the restoration of the
premining range of flows and
restoration of premining biological
communities in any waters of this
Commonwealth predicted to be
adversely affected by subsidence. The
restoration shall be consistent with the
premining existing and designated uses
of the waters of this Commonwealth;
and (2) the application is approved by
the department.’’
During the initial comment period,
(Administrative Record Number PA
899.05), we received multiple citizen
requests to extend the comment period
and to hold a public hearing on the
amendment. We are reopening the
public comment period to afford the
public more time to comment on the
amendment and to allow enough time to
schedule and hold the hearing. The
date, time and location for the public
hearing may be found under DATES and
ADDRESSES.
The hearing will be open to anyone
who would like to attend and/or testify.
FOR FURTHER INFORMATION CONTACT:
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20775
The primary purpose of the public
hearing is to obtain your comments on
the proposed rule so that we can
prepare a complete and objective
analysis of the proposal. Those wishing
to provide oral testimony need to
register between 5:00 p.m. and 5:30 p.m.
at the hearing location. Other attendees
are not required to register. Written
testimony will also be accepted. The
hearing officer will conduct the hearing
and receive the comments submitted.
Comments submitted during the hearing
will be responded to in the preamble to
the final rule, not at the hearing. We
appreciate all comments, but those most
useful and likely to influence decisions
on the final rule will be those that either
involve personal experience or include
citations to, and analyses of, the Surface
Mining Control and Reclamation Act of
1977, its legislative history, its
implementing regulations, case law,
other State or Federal laws and
regulations, data, technical literature, or
relevant publications.
At the hearing, a court reporter will
record and make a written record of the
statements presented. This written
record will be made part of the
administrative record for the rule. If you
have a written copy of your testimony,
we encourage you to give us a copy. It
will assist the court reporter in
preparing the written record. Any
disabled individual who needs
reasonable accommodation to attend the
public hearing is encouraged to contact
the person listed under FOR FURTHER
INFORMATION CONTACT.
Dated: April 5, 2018.
Thomas D. Shope,
Regional Director, Appalachian Region .
[FR Doc. 2018–09767 Filed 5–7–18; 8:45 am]
BILLING CODE 4310–05–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 49
[EPA–HQ–OAR–2014–0606; FRL–9977–68–
OAR]
RIN 2060–AT96
Amendments to Federal
Implementation Plan for Managing Air
Emissions From True Minor Sources in
Indian Country in the Oil and Natural
Gas Production and Natural Gas
Processing Segments of the Oil and
Natural Gas Sector
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Proposed Rules
The Environmental Protection
Agency (EPA) is proposing three
amendments to the existing National Oil
and Natural Gas Federal
Implementation Plan (National O&NG
FIP) that applies to new true minor
sources and minor modifications at
existing true minor sources in the oil
and natural gas production and natural
gas processing segments of the oil and
natural gas sector that are locating or
expanding in Indian reservations or in
other areas of Indian country over
which an Indian tribe, or the EPA, has
demonstrated the tribe’s jurisdiction.
The National O&NG FIP, which
includes a mechanism for authorizing
construction of true minor new and
modified oil and natural gas sources,
satisfies the minor source permitting
requirement under the ‘‘Federal Minor
New Source Review (NSR) Program in
Indian Country’’ (referred to as the
‘‘Federal Indian Country Minor NSR
rule’’). We are proposing two
amendments to apply the National
O&NG FIP to the Uintah and Ouray
Reservation (U&O Reservation) portion
of the intended Uinta Basin Ozone
Nonattainment Area. We are also
proposing a minor technical correction
to fix a typographical error in a
provision in the National O&NG FIP.
DATES:
Public hearing. A public hearing will
be held May 30, 2018, at the EPA’s
Region 8 offices at 1595 Wynkoop
Street, Denver, CO 80202. Please refer to
the SUPPLEMENTARY INFORMATION section
for additional information on the
hearing.
Comments. The EPA must receive
comments on this proposed action no
later than July 2, 2018.
ADDRESSES:
Public hearing. The hearing will be
held at the EPA’s Region 8 offices at
1595 Wynkoop Street, Denver, CO
80202. The hearing will convene at 9:00
a.m. (local time). The EPA will end the
hearing two hours after the last
registered speaker has concluded their
comments but no later than 4:00 p.m.
(local time). There will be a lunch break
from 1:00 p.m. to 2:00 p.m. (local time).
Because the hearing is being held at
a United States government facility,
individuals planning to attend must
plan for enough time to enter the
facility. All visitors must ensure they
have a valid photo ID and must pass
through security screening, comparable
to screening at an airport, they will sign
in and obtain a visitor pass. No large
signs, cameras, banners and/or weapons
will be allowed in to the facility.
Docket. The EPA has established a
docket for this action under Docket ID
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SUMMARY:
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No. EPA–HQ–OAR–2014–0606, at
https://www.regulations.gov. Follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. the EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the Web, Cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Mr.
Christopher Stoneman, Outreach and
Information Division, Office of Air
Quality Planning and Standards (C–
304–01), Environmental Protection
Agency, Research Triangle Park, North
Carolina, 27711, telephone number
(919) 541–0823, facsimile number (919)
541–0072, email address:
stoneman.chris@epa.gov.
Public hearing. The EPA will begin
pre-registering speakers for the hearing
upon publication of this document in
the Federal Register. If you would like
to speak at the public hearing, please
register using the online registration
form available at: https://www.epa.gov/
controlling-air-pollution-oil-andnatural-gas-industry. You may also
register by contacting Tonya Blatcher at
(919) 541–1929 or by email at
blatcher.tonya@epa.gov. To register to
speak, we request the following
information: The time you wish to
speak, name, affiliation, email address,
and telephone number. If you register to
speak online, you do not need to call.
If you require reasonable
accommodations, such as the service of
a translator, please let us know as soon
as possible, but no later than May 22,
2018.
The last day to pre-register to register
to speak at the hearing will be Tuesday,
May 25, 2018. On May 28, 2018, the
EPA will post a general agenda for the
hearing that will list pre-registered
speakers in approximate order. The
general agenda will be posted at https://
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www.epa.gov/controlling-air-pollutionoil-and-natural-gas-industry. The EPA
will make every effort to follow the
schedule as closely as possible on the
day of the hearing; however, please plan
for the hearing to run either ahead of
schedule or behind schedule.
Additionally, requests to speak will be
taken the day of the hearing at the
hearing registration desk. The EPA will
make every effort to accommodate all
speakers who arrive and register,
although preferences on speaking times
may not be able to be fulfilled.
SUPPLEMENTARY INFORMATION: Public
hearing. Each commenter will have 5
minutes to provide oral testimony. The
EPA encourages commenters to provide
the EPA with a copy of their oral
testimony electronically (via email) or
in hard copy form.
The EPA may ask clarifying questions
during the oral presentations, but will
not respond to the presentations at that
time. Written statements and supporting
information submitted during the
comment period will be considered
with the same weight as oral comments
and supporting information presented at
the public hearing. Commenters should
notify Tonya Blatcher at (919) 541–1929
or by email at blatcher.tonya@epa.gov if
they will need specific equipment, or if
there are other special needs related to
providing comments at the hearings.
Verbatim transcripts of the hearings and
written statements will be included in
the docket for the rulemaking.
Please note that any updates made to
any aspect of the hearing will be posted
online at https://www.epa.gov/
controlling-air-pollution-oil-andnatural-gas-industry. While the EPA
expects the hearing to go forward as set
forth above, please monitor our website
or contact Tonya Blatcher at (919) 541–
1929 or by email at blatcher.tonya@
epa.gov to determine if there are any
updates. The EPA does not intend to
publish a document in the Federal
Register announcing updates.
The EPA will not provide audiovisual
equipment for presentations unless we
receive special requests in advance.
Commenters should notify Tonya
Blatcher when they pre-register to speak
that they will need specific equipment.
If you require the service of a translator
or special accommodations such as
audio description, please pre-register for
the hearing and describe your needs by
May 22, 2018. We may not be able to
arrange for accommodations without
advance notice.
The information presented in this
preamble is organized as follows:
I. General Information
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Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Proposed Rules
A. What entities are potentially affected by
this action?
B. Where can I get a copy of this document
and other related information?
II. Purpose of this Proposed Action
A. Overview
B. Authority for Proposed Action
C. Rationale for Proposed Action
III. Background
A. FIPs Under the Indian Country Minor
NSR Rule
B. Uinta Basin Air Quality and Intended
Nonattainment Designation
IV. Summary of Proposed Amendments
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act
(UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
J. National Technology Transfer and
Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
I. General Information
A. What entities are potentially affected
by this action?
Entities potentially affected by this
proposal include the Ute Indian Tribe,1
as well as new and modified true minor
20777
sources that are in the oil and natural
gas production and natural gas
processing segments of the oil and
natural gas sector and are on Indian
country 2 lands within the U&O
Reservation. All of the Ute Indian Tribe
Indian country lands of which the EPA
is aware are located within the exterior
boundaries of the Reservation, and these
amendments will apply to all such
lands. To the extent that there are Ute
Indian Tribe dependent Indian
communities under 18 U.S.C. 1151(b) or
allotted lands under 18 U.S.C. 1151(c)
that are located outside the exterior
boundaries of the Reservation, those
lands will not be covered by these
amendments.3 In addition, this
proposed rule will not apply to any
sources not on Indian country lands,
including any areas within the exterior
boundaries of the Reservation that are
not Indian country lands.4
TABLE 1—SOURCE CATEGORIES AFFECTED BY THIS ACTION
NAICS code a
Examples of regulated entities/description of industry category
Oil and Natural Gas Production/Operations ...............................
21111
Crude Petroleum and Natural Gas Extraction ............................
211111
Natural Gas Liquid Extraction .....................................................
211112
Drilling Oil and Natural Gas Wells ..............................................
213111
Exploration for crude petroleum and natural gas; drilling, completing, and equipping wells; operation of separators, emulsion breakers, desilting equipment, and field gathering lines
for crude petroleum and natural gas; and all other activities
in the preparation of oil and natural gas up to the point of
shipment from the producing property.
Production of crude petroleum, the mining and extraction of oil
from oil shale and oil sands, the production of natural gas,
sulfur recovery from natural gas, and the recovery of hydrocarbon liquids from oil and natural gas field gases.
Exploration, development and/or the production of petroleum
or natural gas from wells in which the hydrocarbons will initially flow or can be produced using normal pumping techniques or production of crude petroleum from surface
shales or tar sands or from reservoirs in which the hydrocarbons are semisolids.
Recovery of liquid hydrocarbons from oil and natural gas field
gases; and sulfur recovery from natural gas.
Drilling oil and natural gas wells for others on a contract or fee
basis, including spudding in, drilling in, redrilling, and directional drilling.
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Industry category
1 The Ute Indian Tribe is a federally recognized
tribe organized under the Indian Reorganization Act
of 1934, with a Constitution and By-Laws adopted
by the Tribe on December 19, 1936, and approved
by the Secretary of the Interior on January 19, 1937.
See Indian Entities Recognized and Eligible to
Receive Services from the United States Bureau of
Indian Affairs, 82 FR 4915 (January 17, 2017); 48
Stat. 984, 25 U.S.C. 5123 (IRA); Constitution and
By-Laws of the Ute Indian Tribe of the Uintah and
Ouray Reservation, available at https://
www.loc.gov/law/help/american-indian-consts/
PDF/37026342.pdf.
2 Indian country is defined at 18 U.S.C. 1151 as:
(a) All land within the limits of any Indian
reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of
any patent, and, including rights-of-way running
through the reservation, (b) all dependent Indian
communities within the borders of the United
States whether within the original or subsequently
acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian
allotments, the Indian titles to which have not been
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extinguished, including rights-of-way running
through the same.
3 Under the Clean Air Act (CAA), lands held in
trust for the use of an Indian tribe are reservation
lands within the definition at 18 U.S.C. 1151(a),
regardless of whether the land is formally
designated as a reservation. See Indian Tribes: Air
Quality Planning and Management, 63 FR 7254,
7258 (1998) (‘‘Tribal Authority Rule’’); Arizona Pub.
Serv. Co. v. EPA, 211 F.3d 1280, 1285–86 (D.C. Cir.
2000). The EPA’s references in this FIP to Indian
country lands within the exterior boundaries of the
U&O Reservation include any such tribal trust lands
that may be acquired by the Ute Indian Tribe. In
addition, in 2014, the U.S. Court of Appeals for the
D.C. Circuit addressed EPA’s authority to
promulgate a FIP establishing certain CAA
permitting programs in Indian country. Oklahoma
Dept. of Environmental Quality v. EPA, 740 F. 3d
185 (D.C. Cir. 2014). In that case, the court
recognized the EPA’s authority to promulgate a FIP
to directly administer CAA programs on Indian
reservations, but invalidated the FIP at issue as
applied to non-reservation areas of Indian country
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in the absence of a demonstration of an Indian
tribe’s jurisdiction over such non-reservation area.
Because the current proposed rule would apply
only on Indian country lands that are within the
exterior boundaries of the U&O Reservation, i.e., on
Reservation lands, it is unaffected by the Oklahoma
court decision.
4 As a result of a series of federal court decisions,
there are some areas within the exterior boundaries
of the Uintah and Ouray Indian Reservation that are
not Indian country lands. See Ute Indian Tribe v.
Utah, 521 F. Supp. 1072 (D. Utah 1981); Ute Indian
Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983); Ute
Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985)
(en banc), cert. denied, 479 U.S. 994 (1986); Hagen
v. Utah, 510 U.S. 399 (1994); Ute Indian Tribe v.
Utah, 935 F. Supp. 1473 (D. Utah 1996); Ute Indian
Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997), cert.
denied, 522 U.S. 1107 (1998); Ute Indian Tribe v.
Utah, 790 F.3d 1000 (10th Cir. 2015), cert. denied,
136 S. Ct. 1451 (2016); and Ute Indian Tribe v.
Myton, 835 F.3d 1255 (10th Cir. 2016), cert. denied,
137 S. Ct. 2328 (2017).
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Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Proposed Rules
TABLE 1—SOURCE CATEGORIES AFFECTED BY THIS ACTION—Continued
NAICS code a
Examples of regulated entities/description of industry category
Support Activities for Oil and Natural Gas Operations ...............
213112
Engines (Spark Ignition and Compression Ignition) for Electric
Power Generation.
22111
Performing support activities on a contract or fee basis for oil
and natural gas operations (except site preparation and related construction activities) such as exploration (except
geophysical surveying and mapping); excavating slush pits
and cellars, well surveying; running, cutting, and pulling casings, tubes, and rods; cementing wells, shooting wells; perforating well casings; acidizing and chemically treating
wells; and cleaning out, bailing, and swabbing wells.
Provision of electric power to support oil and natural gas production where access to the electric grid is unavailable.
Industry category
a North
American Industry Classification System.
This list is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
potentially affected by this action. To
determine whether your facility could
be affected by this action, you should
examine the applicability criteria in the
Federal Minor NSR Program in Indian
Country and the National O&NG FIP (40
Code of Federal Regulations (CFR)
49153 and 49.101, respectively). If you
have any questions regarding the
applicability of this action to a
particular entity, contact the appropriate
person listed in the FOR FURTHER
INFORMATION CONTACT section.
B. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this final
rule will also be available on the World
Wide Web. Following signature by the
EPA Administrator, a copy of this final
rule will be posted in the regulations
and standards section of our NSR home
page located at https://www.epa.gov/nsr
and on the tribal NSR page at https://
www.epa.gov/tribal-air/tribal-minornew-source-review.
II. Purpose of This Proposed Action
A. Overview
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In this action, the EPA is proposing to
exercise its authority, in accordance
with section 110(a)(2)(C) of the CAA
and under sections 301(a) and 301(d)(4)
of the CAA and 40 CFR 49.11 by
amending the National O&NG FIP 5 to
extend it to eligible true minor oil and
natural gas sources in the Indian
5 ‘‘Federal Implementation Plan for True Minor
Sources in Indian Country in the Oil and Natural
Gas Production and Natural Gas Processing
Segments of the Oil and Natural Gas Sector;
Amendments to the Federal Minor New Source
Review Program in Indian Country to Address
Requirements for True Minor Sources in the Oil and
Natural Gas Sector,’’ U.S. Environmental Protection
Agency, 81 FR 35943, June 3, 2016, https://
www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/201611969.pdf.
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country portion of the intended Uinta
Basin Ozone Nonattainment Area,
which includes making it available as a
mechanism for authorizing construction
in that area. (The Indian country lands
within the Uinta Basin to which these
amendments would apply are on the
U&O Reservation.)
The National O&NG FIP provides a
mechanism for authorizing construction
for eligible true minor oil and natural
gas sources wishing to locate or expand
in areas of Indian country designated as
attainment, unclassifiable and
attainment/unclassifiable. The counties
in the Uinta Basin are currently
designated as unclassifiable with
respect to the 2008 ozone National
Ambient Air Quality Standards
(NAAQS) 6 and, as such, owners/
operators of eligible oil and natural gas
sources on Indian country lands within
the U&O Reservation have been utilizing
the National O&NG FIP’s streamlined
approach to satisfy permitting
requirements since August 2, 2016,
when the FIP became effective.
However, the EPA has announced its
intention to designate portions of the
Uinta Basin, including the U&O
Reservation, as nonattainment for the
2015 ozone NAAQS.7 8
6 ‘‘Air Quality Designations for the 2008 Ozone
National Ambient Air Quality Standards;
Implementation of the 2008 National Ambient Air
Quality Standards for Ozone: Nonattainment Area
Classifications Approach, Attainment Deadlines
and Revocation of the 1997 Ozone Standards for
Transportation Conformity Purposes,’’ U.S.
Environmental Protection Agency, 77 FR 30087,
May 21, 2012, https://www.gpo.gov/fdsys/pkg/FR2012-05-21/pdf/2012-11618.pdf.
7 The EPA intends to make final designation
determinations for the areas of the country
addressed by the EPA responses to state and tribal
area boundary recommendations (which cover the
Uinta Basin region) no earlier than 120 days from
the date (December 21, 2017) the EPA notified
states and tribes of the agency’s intended
designations.
8 ‘‘EPA Responses to Certain State Designation
Recommendations for the 2015 Ozone National
Ambient Air Quality Standards: Notice of
Availability and Public Comment Period,’’ U.S.
Environmental Protection Agency, 83 FR 651,
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The Uinta Basin is a petroleum
producing system that contains
thousands of active oil and natural gas
wells, and existing oil and natural gas
production activity is the primary
source of the emissions of concern for
air quality: volatile organic compounds
(VOC) and nitrogen oxides (NOX), ozone
precursors that react to form ozone in
the presence of sunlight and widespread
snow cover. The Uinta Basin’s air
quality problem is wintertime ozone
caused by these existing sources’
emissions. However, because the agency
is under a court order to finalize the
Basin’s designation with respect to the
2015 ozone NAAQS by April 30, 2018,9
and because the agency intends to
designate some portions of the Basin as
nonattainment, including portions of
the U&O Reservation, under the
National O&G FIP, in its current form,
the Indian country portions of the Basin
(U&O Reservation) will fall out of that
FIP’s coverage. Thus, the area will lack
a streamlined mechanism to authorize
construction of true minor new and
modified oil and natural gas sources.
This will immediately cause a disparity
in the regulatory landscape facing such
activity in the affected area, as
compared to all other areas of Indian
country that will remain covered by the
FIP—even though the Basin’s air quality
problem that drives the impending
nonattainment designation will not
manifest until the winter.
With this proposed action, the EPA is
proposing to ensure that the National
O&NG FIP’s requirements to comply
with eight federal rules (and the
mechanism for authorizing
construction) will continue to apply on
the U&O Reservation, recognizing that
the geographically limited extension of
the National O&NG FIP to the area is
occurring while the EPA moves quickly
to complete a separate rulemaking to
January 5, 2018, https://www.gpo.gov/fdsys/pkg/FR2018-01-05/pdf/2018-00024.pdf.
9 In re Ozone Designation Litigation, No. 17–cv–
06900–HSG (N.D. Cal. March 12, 2018).
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further address the air quality problem
on the U&O Reservation.
The separate EPA rulemaking 10
addressing air quality is a reservationspecific FIP action that will contain
requirements to reduce ozone-forming
emissions from new, modified and
existing oil and natural gas sources on
Indian country lands within the U&O
Reservation. The rulemaking will seek
to achieve three goals for the Indian
country portion of the Uinta Basin: (1)
Clean air; (2) continued, uninterrupted
development of the oil and natural gas
resources; and (3) consistent CAA
regulatory requirements between Indian
country lands within the U&O
Reservation and lands under state of
Utah jurisdiction. Through that
rulemaking, the EPA will address the
Uinta Basin’s particular situation in an
area-specific manner; this proposal
today seeks to bridge the gap in
authority that the nonattainment
designation will cause during the
interim period where the designation
will be in place, but the environmental
needs requiring area-specific treatment
have not yet materialized.
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B. Authority for Proposed Action
CAA section 110(a)(2)(C) is part of the
foundation for the minor NSR program,
and it requires states to submit plans
that include programs for the regulation
of ‘‘the modification and construction of
any stationary source.’’ 11 CAA section
110(c) authorizes the EPA to promulgate
a Federal implementation plan in the
absence of a satisfactory state plan. CAA
section 301(a) generally authorizes the
EPA to prescribe regulations as are
necessary to carry out its functions
under the Act.
Section 301(d) of the CAA authorizes
the EPA to treat Indian tribes in the
same manner as states and directs the
EPA to promulgate regulations
specifying those provisions of the CAA
for which such treatment is appropriate.
(CAA sections 301(d)(1) and (2)). It also
authorizes the EPA, in circumstances in
which the EPA determines that the
treatment of Indian tribes as identical to
10 The rulemaking is listed on the Office of
Management and Budget’s Unified Agenda of
Regulatory and Deregulatory Actions. For more
information, go to: https://www.reginfo.gov/public/
do/eAgendaViewRule?pubId=201710&RIN=2008AA03. In the Agenda, the rulemaking appears as:
‘‘Federal Implementation Plan for Oil and Natural
Gas Sources; Uintah and Ouray Indian Reservation
in Utah.’’
11 Section 110(a)(2)(C) of the CAA requires state
plans to include ‘‘a program to provide for the . . .
regulation of the modification and construction of
any stationary source within the areas covered by
the plan as necessary to assure that national
ambient air quality standards are achieved,
including a permit program as required in parts C
and D of this subchapter.’’
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states is inappropriate or
administratively infeasible, to provide
by regulation other means by which the
EPA will directly administer the CAA.
(CAA section 301(d)(4)). Acting
principally pursuant to that authority,
on February 12, 1998,12 the EPA
promulgated what we refer to as the
Tribal Authority Rule (TAR). (40 CFR
49.1–49.11). In the TAR, we determined
that it was appropriate to treat tribes in
the same manner as states for all CAA
and regulatory purposes except a list of
specified CAA provisions and
implementing regulations thereunder.
(40 CFR 49.4).
The TAR preamble clarified that by
including CAA section 110(c)(1) on the
§ 49.4 ‘‘exception’’ list, ‘‘EPA is not
relieved of its general obligation under
the CAA to ensure the protection of air
quality throughout the nation, including
throughout Indian country.’’ The
preamble confirmed that the ‘‘EPA will
continue to be subject to the basic
requirement to issue a FIP for affected
tribal areas within some reasonable
time.’’ 13 The TAR includes a provision
that provides the EPA the authority to
promulgate a Federal implementation
plan in the absence of a satisfactory
tribal plan. (40 CFR 49.11(a)).
On August 21, 2006, the EPA
proposed the regulation: ‘‘Review of
New Sources and Modifications in
Indian Country’’ (commonly referred to
as the Federal Indian Country NSR
rule).14 With this proposed regulation,
the EPA proposed to protect air quality
in Indian country, as defined in 18
U.S.C. 1151, by establishing a FIP
program to regulate, among other
matters, the modification and
construction of minor stationary sources
consistent with the authorities and
requirements of sections 301 and
110(a)(2)(C) of the CAA. We refer to this
part of the Federal Indian Country NSR
rule as the Federal Indian Country
Minor NSR rule. Under the Federal
Indian Country Minor NSR rule, we
proposed to provide a mechanism for
issuing pre-construction permits for the
construction of new minor sources and
certain modifications of major and
minor sources in Indian country. We
promulgated a final rule on July 1,
12 ‘‘Indian Tribes: Air Quality Planning and
Management,’’ U.S. Environmental Protection
Agency, 63 FR 7254, February 12, 1998, https://
www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/983451.pdf.
13 See CAA section 301(a) and 63 FR 7254, 7265,
February 12, 1998, https://www.gpo.gov/fdsys/pkg/
FR-1998-02-12/pdf/98-3451.
14 ‘‘Review of New Sources and Modifications in
Indian Country,’’ U.S. Environmental Protection
Agency, 71 FR 48696, August 21, 2006, https://
www.gpo.gov/fdsys/pkg/FR-2006-08-21/pdf/066926.pdf.
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2011,15 and the rule became effective on
August 30, 2011. The Federal Indian
Country Minor NSR rule applies to new
and modified minor stationary sources
and to minor modifications at existing
major stationary sources located in
Indian country where there is no EPAapproved program in place for all new
and modified minor sources and minor
modifications at major sources located
in areas covered by the Federal Indian
Country Minor NSR rule.
Tribes can elect to develop and
implement their own EPA-approved
program under the TAR,16 but they are
not required to do so.17 In the absence
of an approved program, the EPA
implements this program. Alternatively,
tribes can take delegation of the program
from the EPA to assist the EPA with
administration of the federal program,
including acting as the Reviewing
Authority for the EPA.
Under the Federal Indian Country
Minor NSR rule, initially beginning
September 2, 2014,18 any new stationary
source, that will emit, or will have the
potential to emit, a regulated NSR
pollutant in amounts that will be: (a)
Equal to or greater than the minor NSR
thresholds established in the Federal
Indian Country Minor NSR rule; but (b)
less than the amount that would qualify
the source as a major source or a major
modification for purposes of the
Prevention of Significant Deterioration
(PSD) or nonattainment major NSR
programs, must apply for and obtain a
minor NSR permit before beginning
construction of the new source.
Likewise, any existing stationary source
(minor or major) must apply for and
obtain a minor NSR permit before
beginning construction (a physical or
operational change) that will increase
the allowable emissions of the
stationary source by more than the
specified threshold amounts, if the
change does not otherwise trigger the
permitting requirements of the PSD or
15 ‘‘Review of New Sources and Modifications in
Indian Country,’’ U.S. Environmental Protection
Agency, 76 FR 38748, July 1, 2011, https://
www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/201114981.pdf.
16 To obtain eligibility to develop and implement
an EPA-approved plan, under the TAR a tribe must
meet four requirements: (1) be a federally
recognized tribe, (2) have a functioning government,
(3) have the legal authority and (4) have the
capacity to run the program. For more information,
see 63 FR 7254, February 12, 1998, https://
www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/983451.pdf.
17 Under tribal law, tribes may also be able to
establish permit fees under a tribal permitting
program, as do most states.
18 For true minor sources in the oil and natural
gas sector, this date was extended twice. The final
date of October 3, 2016, was included in the
National O&NG FIP.
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implementation plans include programs
for all areas (attainment and
nonattainment) that provide for the
regulation of the modification and
construction of any stationary source
‘‘as necessary to assure that national
ambient air quality standards are
achieved’’ for the reasons discussed
elsewhere in this document. In addition,
CAA sections 172 and 173 provide that
programs relating to permits to
construct for major sources should take
into consideration emissions from
existing sources, as well as new or
modified sources that ‘‘are not major
emitting facilities,’’ i.e., new or
modified minor sources. Thus, the
emissions from minor sources covered
by this action would be considered in
CAA section 173 major source
permitting actions in the intended Uinta
Basin Ozone Nonattainment Area,
though they are not directly subject to
regulation under CAA sections 172 and
173.20
nonattainment major NSR program(s).19
The Federal Indian Country Minor NSR
rule also created a framework for the
EPA to streamline the issuance of preconstruction permits to true minor
sources by using general permits.
In promulgating the National O&NG
FIP we determined that it was
appropriate to promulgate a FIP to
remedy an existing regulatory gap with
respect to oil and natural gas production
and natural gas processing operations in
areas covered by the Federal Indian
Country Minor NSR rule where there is
no EPA-approved plan in place. The
authority that underlies and supports
the National O&NG FIP (as well as the
Federal Indian Country Minor NSR FIP)
also authorizes this proposed action,
which simply would amend the
National O&NG FIP. In summary, just as
we had the authority to establish the
National O&NG FIP, we believe that we
have authority under the CAA (sections
301(a), 301(d)(4) and 110(a)(2)(C)) and
regulatory authority under the TAR (40
CFR 49.1–49.11) to carry out this action
and extend the applicability of the
National O&NG FIP to the Indian
country portion of the Uinta Basin
Ozone Nonattainment Area. As
described above, the CAA provides
broad authority to manage air resources
throughout Indian country, regardless of
area designation under the CAA. This is
well established authority and we have
exercised it on many occasions,
including to regulate activity in areas of
Indian country designated
nonattainment. Foremost, the Agency is
responsible for ensuring that NAAQS
are achieved throughout Indian country
and to implement CAA programs in
Indian country that tribal governments
do not elect to implement. This
proposed action is consistent with and
supported by our successful use of these
authorities in these prior actions.
Finally, in light of the intended,
pending final designation of
nonattainment for the Uinta Basin for
the 2015 ozone NAAQS, this action is
consistent with the CAA general
provisions for nonattainment areas in
CAA sections 172(b) and 172(c), which
include references to CAA section
110(a)(2), as well as the major source
nonattainment NSR permitting program
in CAA section 173. This proposed
action is consistent with CAA section
110(a)(2)(C), which requires that
C. Rationale for Proposed Action
In the preamble to the final National
O&NG FIP, we made clear that we could
extend the geographic coverage of the
FIP to nonattainment areas, provided
that we also addressed existing, new
and modified sources in a separate,
reservation-specific FIP. We stated the
need to develop area-specific plans if
and when areas of Indian country
become nonattainment. Further, we
specifically noted concern about the air
quality problem in the Uinta Basin and
indicated our intent to propose a
separate reservation-specific FIP to
address the issue.
The extension of the National O&NG
FIP proposed in this document will, if
finalized, provide coverage under the
National O&NG FIP for Indian country
portion of the intended Uinta basin
Ozone Nonattainment Area after EPA’s
intended designation of portions of the
Uinta Basin as being in nonattainment
of the 2015 ozone NAAQS, which the
EPA intends to issue by April 30, 2018.
We indicated in the preamble to the
final National O&NG FIP that we
intended ‘‘to potentially apply the
national FIP’s requirements as
appropriate to nonattainment areas
where the EPA has established a
separate, area-specific FIP.’’21 The EPA
does intend to do just that for the Indian
country portion of the intended Uinta
19 A source may, however, be subject to certain
monitoring, recordkeeping and reporting (MRR)
requirements under the major NSR programs, if the
change has a reasonable possibility of resulting in
a major modification. A source may be subject to
both the Federal Indian Country Minor NSR rule
and the reasonable possibility MRR requirements of
the major NSR program(s).
20 The Federal Indian Country NSR rule also
provides for major source permitting in
nonattainment areas in Indian country. See 76 FR
38748, July 1, 2011, https://www.gpo.gov/fdsys/pkg/
FR-2011-07-01/pdf/2011-14981.pdf.
21 See 81 FR 35943, 35946, June 3, 2016, https://
www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/201611969.pdf.
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Basin Ozone Nonattainment Area, but in
the meantime we are proposing this
action. The agency believes that this
approach is reasonable in light of the
following considerations.
First, as noted above, the EPA is
moving quickly to undertake a separate
rulemaking to establish a U&O
Reservation-specific FIP for the area. We
intend to complete this other action—
the U&O Reservation-specific FIP—
before the start of the 2018–2019 winter
ozone season in the Uinta Basin. Our
intent is for the FIP to contain VOC
emissions control requirements that will
apply to existing, new and modified
minor oil and natural gas sources on the
U&O Reservation. Our intent is for some
of those requirements (i.e., VOC
requirements on new and modified
minor sources) to apply before the start
of the 2018–2019 winter ozone season
on the U&O Reservation, by which time
we expect the final U&O Reservationspecific FIP to be effective with the
requirements on existing oil and natural
gas minor sources to follow. It should
also be noted that preliminary
monitoring data from the current 2017–
2018 winter ozone season from across
the region show values well below the
2015 ozone NAAQS.22
Second, the relatively short, initial
period of time before a U&O
Reservation-specific FIP is in place
during which the National O&NG FIP
will apply to the U&O Reservation (as
part of the expected Uinta Basin Ozone
Nonattainment Area), will be before the
Uinta Basin winter ozone season. As
noted above, the Uinta Basin does not
have a summertime ozone air quality
problem. We are, therefore, confident
that—with this action—the eight
emissions standards that apply to oil
and natural gas sources under the
National O&NG FIP will continue to be
adequately protective of air quality in
the U&O Reservation while we complete
the separate rulemaking to establish a
U&O Reservation-specific FIP, all of
which we expect to occur before the
start of the 2018–2019 winter ozone
season in the Uinta Basin.
Finally, the two-part approach we are
taking is similar to the process that
occurs under the CAA when an area
within a state is designated
nonattainment: A plan addressing the
air quality problem is not due to the
EPA until a period of time after an area
is designated nonattainment. Thus, the
approach we are presenting here, we
believe, is reasonable.
22 See spreadsheet titled: ‘‘Uinta Basin Ozone
Data, Dec. 2017-Feb. 2018,’’ Docket No. EPA–HQ–
OAR–2014–0606.
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We also believe that this action—
along with the EPA’s related,
forthcoming action to reduce oil and
natural gas source emissions in the
area—will address the air quality
problem on the U&O Reservation, while
maintaining a mechanism for
authorizing construction that helps
ensure continued oil and natural gas
production on the U&O Reservation in
compliance with the eight federal rules
that apply to true minor oil and natural
gas sources under the FIP.23 Based on
feedback from Ute Indian Tribe
leadership, continued oil and natural
gas production is important for the
maintenance of the local tribal
economy, as the Ute Indian Tribe is
dependent upon oil and natural gas
revenue for its economic prosperity.
Because the action we propose today
will avoid disruption of that activity
during the period before the wintertime
ozone problem manifests, while the EPA
works to promulgate an area-specific
protective measure to address that
problem, the agency believes this course
of action will appropriately protect the
Basin’s environment without causing
unnecessary disruption to its economy.
We are proposing that the extension
of the National O&NG FIP to eligible
true minor oil and natural gas sources
in the Indian country portion of the
intended Uinta Basin Ozone
Nonattainment Area be permanent.
However, we also are seeking comment
on whether, instead, it should be
temporary and expire before the onset of
the 2018–2019 ozone season. We seek
comment on whether the extension
should be temporary, in light of the facts
surrounding the Uinta Basin’s situation
as described above and with respect to:
(1) This proposed action, (2) its
impending nonattainment designation,
and (3) the forthcoming area-specific
FIP.
In particular, we seek comment on
how the EPA can protect air quality on
the U&O Reservation and ensure
continued oil and natural gas
development under two general
scenarios. In the first scenario, we
finalize the extension as permanent, as
proposed, but we do not complete the
U&O Reservation-specific FIP by the
start of the 2018–2019 Uinta Basin
winter ozone season. A concern may be
that continuing to allow the Uinta Basin
23 This includes the EPA’s New Source
Performance Standards (NSPS) for oil and natural
gas sources (40 CFR part 60, subpart OOOO) with
affected facilities that commenced construction,
modification or reconstruction after August 23,
2011. The standard includes emissions standards
for VOC and sulfur dioxide (SO2) from a number
of units, including storage tanks, compressors, and
pneumatic controllers.
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Ozone Nonattainment Area to be
covered by the National O&NG FIP in
the absence of any emissions reductions
that may be associated with the U&O
Reservation-specific FIP. We seek
comment relating to this scenario,
including on what the Agency could do
in this action, when finalized, to
mitigate possible impacts.
In another scenario, we, instead
finalize the extension as temporary and
we set it to expire at the end of calendar
year 2018, say, but we do not complete
the U&O Reservation-specific FIP by the
start of the 2018–2019 Uinta Basin
winter ozone season. Here, the concern
would be the effect on oil and natural
gas activity on the U&O Reservation, if
the area loses coverage under the
National O&NG FIP. In the absence of
other measures, sources in the Indian
country portion of Uinta Basin Ozone
Nonattainment Area (the U&O
Reservation) would need to obtain
source-specific minor source permits in
order to construct and operate. Oil and
natural gas owners and operators in the
U&O reservation and the Ute Indian
Tribe have significant concerns about
delays associated with this type of
permitting. As noted above, the Ute
Indian Tribe relies on revenue from oil
and natural gas activity for its livelihood
and has expressed concerns about the
lengthier timeframes associated with
EPA approvals under source-specific
permitting. We seek comment relating to
this scenario, including on what the
Agency could do to mitigate possible
impacts.
III. Background
A. FIPs Under the Indian Country Minor
NSR Rule
1. Federal Indian Country Minor NSR
Rule
As noted above, CAA section
301(d)(4) authorizes the EPA to issue
regulations directly administering, in
Indian country, provisions of the Act.
Exercising its authority, including its
authority under 301(d)(4), the EPA
promulgated the Federal Indian Country
Minor NSR rule, a type of FIP. We
identified a regulatory gap that could
have the effect of adversely impacting
air quality due to the lack of approved
minor NSR permit programs to regulate
construction of new and modified minor
sources and minor modifications of
major sources in areas covered by the
Federal Indian Country Minor NSR rule.
The EPA promulgated the FIP to ensure
that air resources are protected by
establishing a preconstruction
permitting program to regulate emission
increases resulting from construction
and modification activities that are not
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already regulated by the major NSR
permitting programs.
2. National O&NG FIP
Following the issuance of the Federal
Indian Country Minor NSR FIP, EPA
proposed the National O&NG FIP.24
Because there were no currently
approved TIPs specifically applying to
the issuance of general permits with
respect to the reduction of emissions
related to oil and natural gas production
facilities, we proposed a FIP to protect
air quality in areas covered by the
Federal Indian Country Minor NSR rule.
The National O&NG FIP was published
in final form on June 3, 2016.25 The
National O&NG FIP adopted legally and
practicably enforceable requirements to
control and reduce air emissions from
oil and natural gas production.
The National O&NG FIP was
developed to protect air quality in
Indian country due to the impact of new
true minor sources and minor
modifications at existing true minor
sources in the oil and natural gas
production and natural gas processing
segments of the oil and natural gas
sector that are locating or expanding in
an Indian reservation or in another area
of Indian country over which a tribe, or
the EPA, has demonstrated that the tribe
has jurisdiction. The FIP applies to new
and modified true minor sources that
are located or expanding in such areas
of Indian country designated as
attainment, unclassifiable or attainment/
unclassifiable. It currently does not
apply to new and modified true minor
sources that are located or expanding in
such areas of Indian country designated
nonattainment. However, this action
proposes to extend the National O&NG
FIP’s geographic coverage to the Uinta
Basin Ozone Nonattainment Area. The
FIP does not apply to minor
modification of major sources; such
sources are required to obtain a sourcespecific permit prior to beginning
construction, per the Federal Indian
Country Minor NSR rule.
The National O&NG FIP fulfills the
EPA’s obligation under the Federal
Indian Country Minor NSR rule to issue
minor source NSR pre-construction
permits to oil and natural gas sources.
The National O&NG FIP provides a
streamlined, alternative approach that
24 ‘‘Review of New Sources and Modifications in
Indian Country: Federal Implementation Plan for
Managing Air Emissions from True Minor Sources
Engaged in Oil and Natural Gas Production in
Indian Country,’’ U.S. Environmental Protection
Agency, 80 FR 56553, September 18, 2005, https://
www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/201521025.pdf.
25 See 81 FR 35943, 35946, June 3, 2016, https://
www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/201611969.pdf.
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fulfills the permitting requirement,
while also ensuring air quality
protection through requirements that are
unambiguous and legally and
practicably enforceable. The FIP
approach is also transparent to the
public: It is clear to the public what
requirements will apply. The FIP
reduces burden for sources and the
Reviewing Authority and minimizes
potential delays in new construction
due to compliance with the minor NSR
permitting obligation. True minor
sources in the oil and natural gas
production and natural gas processing
segments of the oil and natural gas
sector are required to comply with the
FIP instead of obtaining a sourcespecific minor source permit, unless a
source chooses to opt out of the FIP and
to obtain a source-specific minor NSR
permit instead.
Under the FIP, we require owners/
operators of oil and natural gas
production facilities and natural gas
processing plants to comply with eight
federal standards to reduce emissions of
VOC, NOX, SO2, particulate matter (PM,
PM10, PM2.5), hydrogen sulfide, carbon
monoxide and various sulfur
compounds from the following units/
processes in the oil and natural gas
production and natural gas processing
segments of the oil and natural gas
sector: Compression ignition and spark
ignition engines; process heaters;
combustion turbines; fuel storage tanks;
glycol dehydrators; completion of
hydraulically fractured oil and natural
gas wells; reciprocating and centrifugal
compressors (except those located at
well sites); pneumatic controllers;
pneumatic pumps; storage vessels; and
fugitive emissions from well sites,
compressor stations and natural gas
processing plants. The oil and natural
gas FIP requires compliance with five
NSPS and three national emission
standards for hazardous air pollutants
(NESHAP).26 These regulations are
listed in Table 2.
The eight regulations and the
provisions of each that are included in
the oil and natural gas FIP are discussed
in more detail in this section. The FIP’s
requirements include emission
standards (that contain emission
limitations), monitoring, testing,
recordkeeping and reporting. For
purposes of the National O&NG FIP,
true minor sources must comply with
these standards, as they currently exist
or as amended in the future, except for
those provisions that we specifically
exclude under the National O&NG FIP
(unless the source opts out of the FIP
and obtains a source-specific permit or
is otherwise required to obtain a sourcespecific permit by the Reviewing
Authority). Sources subject to the
National O&NG FIP would be subject to
any future changes to the eight
underlying EPA standards only if they
undergo a future minor modification as
a true minor source and would
otherwise be subject to those future
changes. (The National O&NG FIP does
not change the applicability of the
specified standards, nor does it relieve
sources subject to the standards from
complying with them, independently of
the National O&NG FIP.)
TABLE 2—EIGHT FEDERAL RULES INCLUDED IN THE OIL AND NATURAL GAS FIP FOR INDIAN COUNTRY 27
40 CFR part and subpart
Potentially affected sources in the oil and natural gas production and natural gas processing
segments of the oil and natural gas sector
Title of subpart
40 CFR part 63, subpart
DDDDD.
National Emission Standards for Hazardous Air
Pollutants for Major Sources: Industrial,
Commercial, and Institutional Boilers and
Process Heaters.
Process heaters ................................................
40 CFR part 63, subpart ZZZZ ..
Subpart ZZZZ—National Emissions Standards
for Hazardous Air Pollutants for Stationary
Reciprocating Internal Combustion Engines.
Reciprocating Internal Combustion Engines .....
40 CFR part 60, subpart IIII ......
Standards of Performance for Stationary Compression Ignition Internal Combustion Engines.
Compression Ignition Internal Combustion Engines.
40 CFR part 60, subpart JJJJ ...
Standards of Performance for Stationary Spark
Ignition Internal Combustion Engines.
Spark Ignition Internal Combustion Engines .....
40 CFR part 60, subpart Kb ......
Standards of Performance for Volatile Organic
Liquid Storage Vessels (Including Petroleum
Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984.
Standards of Performance for Crude Oil and
Natural Gas Facilities for which Construction,
Modification, or Reconstruction Commenced
after September 18, 2015.
Fuel Storage Tanks ...........................................
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40 CFR part 60, subpart
OOOOa.
40 CFR part 63, subpart HH .....
National Emission Standards for Hazardous Air
Pollutants from Oil and Natural Gas Production Facilities.
26 Though this FIP only addresses new and
modified true minor sources, it is important to note
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Storage Vessels, Pneumatic Controllers, Compressors (Reciprocating and Centrifugal),
Hydraulically Fractured Oil and Natural Gas
Well Completions, Pneumatic Pumps and
Fugitive Emissions from Well Sites and
Compressor Stations.
Glycol Dehydrators ............................................
that NESHAPs not only apply to new sources but
to existing sources as well.
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sp40.14.63.ddddd&rgn=div6.
https://www.ecfr.gov/cgi-bin/textidx?c=ecfr;rgn=div6;view=
text;node=40%3A14.0.1.1.
1.1;idno=40;sid=e94dcfde4
a04b27290c445a56e
635e58;cc=ecfr.
https://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895e
9cb417f5386519941a
47&mc=true&node=
sp40.7.60.iiii&rgn=div6.
https://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895e
9cb417f5386519941a
47&mc=true&node=
sp40.7.60.jjjj&rgn=div6.
https://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895e
9cb417f5386519941a
47&mc=true&node=
sp40.7.60.k_0b&rgn=div6.
https://www.epa.gov/controllingair-pollution-oil-and-naturalgas-industry/actions-and-notices-about-oil-and-naturalgas.
https://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895e9cb
417f5386519941a47&mc=
true&node=sp40.11.63.
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TABLE 2—EIGHT FEDERAL RULES INCLUDED IN THE OIL AND NATURAL GAS FIP FOR INDIAN COUNTRY 27—Continued
40 CFR part and subpart
40 CFR part 60, subpart KKKK
Standards of Performance for New Stationary
Combustion Turbines.
sradovich on DSK3GMQ082PROD with PROPOSALS
3. National O&NG FIP and Areas of
Comment the EPA Received Relevant to
This Action
In the response to comments section
of the preamble to the final rule
establishing the National O&NG FIP, we
addressed some issues that are related to
this proposed action.28 We provided
that the FIP does not apply in a
nonattainment area, but that it could, if
we addressed existing sources in such
an area.29 We stated that, parallel to
designating such an area is designated
as nonattainment, we would promulgate
an area-specific FIP for existing sources
if we determine that it is ‘‘necessary or
appropriate’’ to do so pursuant to the
TAR.30 We received comments
concerning extending the geographic
reach of the National O&NG FIP to
nonattainment areas. Commenters were
concerned with how permitting
requirements would be satisfied in such
areas during the transition period
between the time an area is designated
as nonattainment and the time a
separate, area-specific FIP to control
emissions adequately in such a
nonattainment area is in place. The
Uinta Basin was given as an example of
where the absence of a streamlined
means to satisfy permitting
requirements during this transition
period could pose problems. In response
27 Three of the eight rules are NESHAPs. Our
basis for requiring compliance with NESHAPs in
this rule that is designed to fulfill requirements of
the Federal Indian Country Minor NSR rule is to
address emissions of criteria pollutants. The
requirements from the NESHAPs are included
because they effectively control emissions of all
VOC, not just those that are also hazardous air
pollutants. VOC is an NSR-regulated pollutant of
concern in the Federal Indian Country Minor NSR
rule.
28 81 FR 35943, June 3, 2016, https://
www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/201611969.pdf.
29 In the preamble to the final National O&NG FIP
we also indicated as a general matter—and not in
response to comments—that new and modified
sources also need to be addressed in reservationspecific FIPs (in addition to existing sources) when
considering whether to extend the geographic
coverage of the National O&NG FIP to
nonattainment area. 81 FR 35943, 35964, 35968,
June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR–
2016-06-03/pdf/2016-11969.pdf.
30 63 FR 7254, February 12, 1998, https://
www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/983451.pdf.
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Combustion Turbines ........................................
to the comments, we stated our intent to
potentially apply the National O&NG
FIP’s requirements as appropriate to
nonattainment areas, where the EPA has
established a separate, area-specific FIP.
As discussed earlier, our proposed
approach here is slightly different, in
that the extension of the National O&NG
FIP to the Uinta Basin nonattainment
area may precede the separate, areaspecific FIP for that area. However, our
plan is for the separate, area-specific FIP
to be in place before the next winter
ozone season. Because, as discussed
above, ozone problems in the Uinta
Basin are limited to the winter season,
we believe this approach is
appropriately protective of air quality,
without unduly impeding oil and
natural gas activity in Indian Country.
In addition, we received comments
recommending that we add monitoring
and modeling requirements to the
National O&NG FIP. Our response to
those comments included a discussion
about the state of air quality in areas of
Indian country with oil and natural gas
activity. With respect to air quality in
areas of Indian country with oil and
natural gas development, we noted in
June 2016 when we promulgated the
National O&NG FIP that we were not
seeing widespread air quality problems
in Indian country due to oil and natural
gas activity. We mentioned in June 2016
that, in all of Indian country, only two
counties in the Uinta Basin (including
land within the U&O Reservation) had
air quality problems due to oil and
natural gas activity. That is still the case
and is discussed further in Section III.C.
We had (and still have) sufficient
concerns about the air quality impacts
from existing sources in that area that
we intend to soon propose a separate
reservation-specific FIP, which, as noted
above, is expected to be in place before
next winter’s ozone season.
Location
https://www.ecfr.gov/cgi-bin/textidx?SID=4090b6cf5eea
5cb67940a80906ff09a
2&mc=true&node=sp40.7.60.
kkkk&rgn=div6.
On October 1, 2015, the EPA
promulgated revised primary and
secondary ozone NAAQS.31 The EPA
strengthened both standards to a level of
0.070 parts per million (ppm). In
accordance with section 107(d) of the
CAA, whenever the EPA establishes a
new or revised NAAQS, the EPA must
promulgate designations for all areas of
the country for that NAAQS. The EPA
must complete this process within 2
years of promulgating the NAAQS,
unless the Administrator has
insufficient information to make the
initial designations decisions in that
time frame. In such circumstances, the
EPA may take up to 1 additional year to
complete the designations. Under CAA
section 107(d), states were required to
submit area designation
recommendations to the EPA for the
2015 ozone NAAQS no later than 1 year
following promulgation of the standards
(i.e., by October 1, 2016).
On September 29, 2016, the state of
Utah provided designation
recommendations for counties in Utah
based on air quality data from 2013–
2015. The state recommended a
designation of nonattainment for
townships in the counties of Duchesne
and Uintah under state air jurisdiction
that are at and below the 6,000-ft
elevation. On February 26, 2018, the
state of Utah provided further input on
the nonattainment boundaries. On
September 27, 2016, the Ute Indian
Tribe of the Uintah and Ouray
Reservation recommended that the
Indian country area at an unspecified
distance around the Ouray ozone
monitor in the Uinta Basin be
designated as nonattainment for the
2015 ozone NAAQS based on air quality
data from 2013–2015. However, the
Tribe recommended a designation of
attainment for all of Indian country in
the Uinta Basin, assuming the EPA
concurs with an exceptional event
package submitted to the agency (by the
Tribe) covering two days in June 2015.
On December 20, 2017, in our
response to the state and tribal
designation boundary
recommendations, we indicated our
intent to modify the state’s and tribe’s
recommendations for the Uinta Basin
area. We provided the intended
31 ‘‘National Ambient Air Quality Standards for
Ozone,’’ U.S. Environmental Protection Agency, 80
FR 65292, October 26, 2015, https://www.gpo.gov/
fdsys/pkg/FR-2015-10-26/pdf/2015-26594.pdf.
B. Uinta Basin Air Quality and Intended
Nonattainment Designation
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boundary in a Technical Support
Document.32 In short, the EPA’s
boundary for the intended
nonattainment area for the Uinta Basin
includes both state and Indian country
lands within portions of Duchesne and
Uintah Counties. A comment period
followed the EPA’s statement on its
intended nonattainment boundaries for
the Uinta Basin and other areas.33
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IV. Summary of Proposed Amendments
This action proposes to amend the
National O&NG FIP to extend its
application to eligible true minor oil
and natural gas sources in the Indian
country portion of the intended Uinta
Basin Ozone Nonattainment Area,
which includes its mechanism for
authorizing construction. We also are
proposing to make a technical
correction to fix a typographical error in
§ 49.101(c).
First, this action proposes to add a
new subparagraph to the CFR, to be
codified at § 49.101(e). In the new
subparagraph, we are proposing to
narrowly extend the geographic scope of
the National O&NG FIP to cover eligible
true minor oil and natural gas sources
wishing to locate or expand in the
Indian country portion (U&O
Reservation) of the intended Uinta Basin
Ozone Nonattainment Area.34 This
proposed extension of coverage to this
one nonattainment area does not alter
the FIP’s current geographic coverage of
attainment, unclassifiable and
attainment/unclassifiable areas with
regard to the rest of Indian country
across the nation. The proposed,
geographically limited extension is in
addition to the current coverage. Under
this proposed amendment, true minor
oil and natural gas sources in the oil and
natural gas production and natural gas
processing segments of the oil and
natural gas sector wishing to locate or
expand in the Indian country portion of
the intended Uinta Basin Ozone
Nonattainment Area would also have to
meet the criteria under § 49.101(b)(1) to
32 Utah: Northern Wasatch Front, Southern
Wasatch Front, and Uinta Basin Intended Area
Designations for the 2015 Ozone National Ambient
Air Quality Standards Technical Support Document
(TSD),’’ U.S. Environmental Protection Agency,
December 20, 2017, https://www.epa.gov/sites/
production/files/2018-01/documents/ut_120d_
tsd.pdf.
33 83 FR 651, January 5, 2018, https://
www.gpo.gov/fdsys/pkg/FR-2018-01-05/pdf/201800024.pdf.
34 Utah: Northern Wasatch Front, Southern
Wasatch Front, and Uinta Basin Intended Area
Designations for the 2015 Ozone National Ambient
Air Quality Standards Technical Support Document
(TSD),’’ U.S. Environmental Protection Agency,
December 20, 2017, https://www.epa.gov/sites/
production/files/2018-01/documents/ut_120d_
tsd.pdf.
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qualify, except for § 49.101(b)(1)(v).
Section 49.101(b)(1)(v) contains the
requirement governing the primary
geographic scope of the FIP and not its
limited extension to the intended Uinta
Basin Ozone Nonattainment Area, and,
thus, would not be relevant for such
sources. In other words, the new
paragraph § 49.101(e) would displace
existing § 49.101(b)(1)(v) for Indian
country within the intended Uinta Basin
Ozone Nonattainment Area—and only
for that area of Indian country.
To accomplish this extension, it is
also necessary to define the boundaries
of the intended Uinta Basin Ozone
Nonattainment Area to which the
National O&G FIP would apply if the
EPA finalizes this proposed rule. To
accomplish this, the EPA proposes to
incorporate the boundaries for the
intended nonattainment area for the
Uinta Basin, or areas within the Uinta
Basin, as defined at 40 CFR part 81,
Designations of Areas for Air Quality
Purposes.35 The regulatory and other
processes that have occurred within and
outside the EPA and between the EPA
and state and tribal governments govern
the development and final decision on
the boundaries for the intended Uinta
Basin Ozone Nonattainment Area and
not this action.
Second, this action proposes a
technical correction to § 49.101(c),
which currently reads: ‘‘When must I
comply with §§ 49.101 through 49.105?
You must comply with §§ 49.101
through 49.101 on or after October 3,
2016.’’ This provision is supposed to
reference §§ 49.101 through 49.105, as
the title indicates. We are proposing to
correct it to read: ‘‘When must I comply
with §§ 49.101 through 49.105? You
must comply with §§ 49.101 through
49.105 on or after October 3, 2016.’’ The
EPA believes that this is a correction of
a self-evident scrivener’s error and does
not constitute a substantive change of
the existing regulatory provision.
V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was, therefore, not
submitted to the Office of Management
and Budget (OMB) for review.
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is expected to be an
Executive Order 13771 deregulatory
35 Ibid.
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action. This proposed rule is expected
to provide meaningful burden reduction
by extending the streamlined
authorization-to-construct method for
true minor new and modified oil and
natural gas sources. The streamlined
authorization, which was established by
the EPA in 2016, reduces the resource
burden on the permitting authority and
regulated community associated with
submitting and reviewing permit
applications for these sources in
attainment and unclassifiable areas.
This action proposes to extend the
streamlined authorization to the
intended Uinta Basin Ozone
Nonattainment Area.
C. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden under the
PRA. OMB has previously approved the
information collection activities
contained in the Federal Indian Country
Minor NSR rule and has assigned OMB
control number 2060–0003.36 This
action amends the National O&NG FIP
which provides a mechanism for
authorizing construction for true minor
sources in the oil and natural gas
production and natural gas processing
segments of the oil and natural gas
sector locating or located in areas
covered by the Federal Indian Country
Minor NSR rule to satisfy the
requirements of that rule other than by
obtaining a source-specific minor source
permit. Because it substitutes for a
source-specific permit, which would
contain information collection activities
covered by the Information Collection
Request for Federal Indian Country
Minor NSR rule issued in July 2011,
neither the proposed amendments nor
the National O&NG FIP impose any new
obligations or enforceable duties on any
state, local or tribal government or the
private sector. In fact, the proposed
amendments would have the effect of
reducing paperwork burden on sources
wishing to locate or expand in the
Indian country portion of the Uinta
Basin as the amendments provide an
alternative to source-specific permitting
for such sources.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. In making this
36 Since the Federal Indian Country Minor NSR
rule was promulgated, the Information Collection
Request has been renewed and approved by OMB
twice. The most recent approval extended the ICR
until October 31, 2020. The ICR covers the activities
of the National O&NG FIP. For more information,
go to: https://www.reginfo.gov/public/do/
PRAViewICR?ref_nbr=201702-2060-005.
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determination, the impact of concern is
any significant adverse economic
impact on small entities. An agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, has
no net burden or otherwise has a
positive economic effect on the small
entities subject to the rule. The EPA
analyzed the impact on small entities of
streamlined permitting under the
Federal Indian Country Minor NSR
rule 37 and determined that it would not
have a significant economic impact on
a substantial number of small entities.
(By allowing sources to avoid having to
obtain source-specific permits, this
proposed action also would relieve
regulatory burden.) This action merely
implements a particular aspect of the
Federal Indian Country Minor NSR rule.
We have, therefore, concluded that this
action will have no net regulatory
burden for all directly regulated small
entities.
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E. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandates, as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local or
tribal government or the private sector.
It simply modifies one option for
sources to comply with the Federal
Indian Country Minor NSR rule. The
Federal Indian Country Minor NSR rule
itself, not this proposed action, imposes
the obligation that true minor sources in
areas covered by the Federal Indian
Country Minor NSR rule obtain a minor
source NSR permit prior to commencing
construction. This proposed action
merely applies the National O&NG FIP
to the U&O Reservation as part of the
Uinta Basin Nonattainment Area, which
includes a streamlined mechanism for
authorizing construction for meeting the
obligation of the Federal Indian Country
minor NSR rule.
F. Executive Order 13132: Federalism
This action does not have federalism
implications. It would not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
37 ‘‘Review of New Sources and Modifications in
Indian Country,’’ U.S. Environmental Protection
Agency, 76 FR 38748, July 1, 2011, https://
www.federalregister.gov/articles/2011/07/01/201114981/review-of-new-sources-and-modifications-inindian-country.
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G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action has tribal implications.
However, it will neither impose
substantial direct compliance costs on
federally recognized tribal governments,
nor preempt tribal law. Consistent with
the EPA Policy on Consultation and
Coordination with Indian Tribes (May 4,
2011),38 the EPA offered consultation on
the concerns addressed in this proposed
action, which include the lack of a
streamlined permitting for the U&O
Reservation should the area be
designated nonattainment. The EPA
conducted outreach on the issues
addressed by the previous rule via
ongoing monthly meetings with tribal
environmental professionals in the
development of the past proposed
action,39 and further as follows via: (1)
Tribal consultation with the Ute Indian
Tribe Business Committee on July 22,
2015; December 17, 2016; November 13,
2017; and March 22, 2018, regarding
options that the EPA considered in
addressing the Uinta Basin air quality
concerns; (2) stakeholder meetings
where the Tribe was included and
participated in emissions contributions
discussions specific to the EPA’s
strategy for addressing the Uinta Basin
air quality concerns; (3) ongoing
stakeholder working group meetings;
and (4) tribally-convened stakeholder
meetings on March 22, 2017, and June
1–2, 2017.
This action reflects tribal concerns
about, and priorities for, developing a
streamlined approach for permitting
true minor sources in the oil and natural
gas sector in areas covered by the
Federal Indian Country Minor NSR rule
in the intended Uinta Basin Ozone
Nonattainment Area. As these
amendments, if finalized, are
implemented, we will continue to
provide regular outreach to tribes to
ensure we address issues concerning the
FIP if and when they arise. The EPA is
available for consultation with any
interested tribe.
health or safety risks addressed by this
action present a disproportionate risk to
children.
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to Executive
Order 13045 because it is not
economically significant as defined in
Executive Order 12866, and because the
EPA does not believe the environmental
Environmental protection,
Administrative practices and
procedures, Air pollution control,
Indians, Indians—law, Indians—tribal
government, Intergovernmental
relations, Reporting and recordkeeping
requirements.
38 For more information, go to: https://
www.epa.gov/tribal/epa-policy-consultation-andcoordination-indian-tribes.
39 These monthly meetings are general in nature,
dealing with many air-related topics, and are not
specific to this proposed action.
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I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
J. National Technology Transfer and
Advancement Act (NTTAA)
This action does not involve technical
standards.
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
As discussed in Section II.B, we
believe that this action is reasonable in
light of our intended, separate
rulemaking to establish a reservationspecific FIP and the expected short
period of time before these requirements
would apply. Therefore, the EPA
believes the amendments in this action
will not have potential
disproportionately high and adverse
human health or environmental effects
on minority, low-income or indigenous
populations. Through these
amendments, we seek: (1) To extend
geographically the National O&NG FIP
and its mechanism for authorizing
construction that effectively provides a
streamlined method for implementing a
pre-construction permitting program for
true minor sources in the oil and natural
gas sector in areas covered by the
Federal Indian Country Minor NSR rule,
and (2) to pursue an approach that
enables a streamlined process, which
helps promote economic development
by minimizing delays in new
construction.
List of Subjects in 40 CFR Part 49
Dated: April 30, 2018.
E. Scott Pruitt,
Administrator.
For the reasons set forth in the
preamble, 40 CFR part 49 is proposed to
be amended as follows:
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PART 49—INDIAN COUNTRY: AIR
QUALITY PLANNING AND
MANAGEMENT
1. The authority citation for part 49
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
Subpart C—General Federal
Implementation Plan Provisions
2. In § 49.101:
a. Revise paragraph (c).
b. Add paragraph (e).
The revision and addition read as
follows:
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■
■
■
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§ 49.101
Introduction.
*
*
*
*
(c) When must I comply with
§§ 49.101 through 49.105? You must
comply with §§ 49.101 through 49.105
on or after October 3, 2016.
*
*
*
*
*
(e) Notwithstanding paragraph
(b)(1)(v), oil and natural gas sources
located in the Indian country portion of
the Uinta Basin Ozone Nonattainment
Area are subject to §§ 49.101 through
49.105 (except for paragraph (b)(1)(v)),
provided subparagraphs (b)(1)(i)–(iv) are
also satisfied.
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3. In § 49.102, add the definition
‘‘Uinta Basin ozone nonattainment area’’
in alphabetical order to read as follows:
■
*
Sfmt 9990
§ 49.102
Definitions.
*
*
*
*
*
Uinta Basin ozone nonattainment
area means the nonattainment area for
the Uinta Basin, or such parts or areas
of the Uinta Basin, as it is or may
hereafter be defined at 40 CFR part 81,
Designations of Areas for Air Quality
Purposes.
[FR Doc. 2018–09652 Filed 5–7–18; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Proposed Rules]
[Pages 20775-20786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09652]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-HQ-OAR-2014-0606; FRL-9977-68-OAR]
RIN 2060-AT96
Amendments to Federal Implementation Plan for Managing Air
Emissions From True Minor Sources in Indian Country in the Oil and
Natural Gas Production and Natural Gas Processing Segments of the Oil
and Natural Gas Sector
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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[[Page 20776]]
SUMMARY: The Environmental Protection Agency (EPA) is proposing three
amendments to the existing National Oil and Natural Gas Federal
Implementation Plan (National O&NG FIP) that applies to new true minor
sources and minor modifications at existing true minor sources in the
oil and natural gas production and natural gas processing segments of
the oil and natural gas sector that are locating or expanding in Indian
reservations or in other areas of Indian country over which an Indian
tribe, or the EPA, has demonstrated the tribe's jurisdiction. The
National O&NG FIP, which includes a mechanism for authorizing
construction of true minor new and modified oil and natural gas
sources, satisfies the minor source permitting requirement under the
``Federal Minor New Source Review (NSR) Program in Indian Country''
(referred to as the ``Federal Indian Country Minor NSR rule''). We are
proposing two amendments to apply the National O&NG FIP to the Uintah
and Ouray Reservation (U&O Reservation) portion of the intended Uinta
Basin Ozone Nonattainment Area. We are also proposing a minor technical
correction to fix a typographical error in a provision in the National
O&NG FIP.
DATES:
Public hearing. A public hearing will be held May 30, 2018, at the
EPA's Region 8 offices at 1595 Wynkoop Street, Denver, CO 80202. Please
refer to the SUPPLEMENTARY INFORMATION section for additional
information on the hearing.
Comments. The EPA must receive comments on this proposed action no
later than July 2, 2018.
ADDRESSES:
Public hearing. The hearing will be held at the EPA's Region 8
offices at 1595 Wynkoop Street, Denver, CO 80202. The hearing will
convene at 9:00 a.m. (local time). The EPA will end the hearing two
hours after the last registered speaker has concluded their comments
but no later than 4:00 p.m. (local time). There will be a lunch break
from 1:00 p.m. to 2:00 p.m. (local time).
Because the hearing is being held at a United States government
facility, individuals planning to attend must plan for enough time to
enter the facility. All visitors must ensure they have a valid photo ID
and must pass through security screening, comparable to screening at an
airport, they will sign in and obtain a visitor pass. No large signs,
cameras, banners and/or weapons will be allowed in to the facility.
Docket. The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2014-0606, at https://www.regulations.gov.
Follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. the EPA may
publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the Web,
Cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Mr. Christopher Stoneman, Outreach and
Information Division, Office of Air Quality Planning and Standards (C-
304-01), Environmental Protection Agency, Research Triangle Park, North
Carolina, 27711, telephone number (919) 541-0823, facsimile number
(919) 541-0072, email address: [email protected].
Public hearing. The EPA will begin pre-registering speakers for the
hearing upon publication of this document in the Federal Register. If
you would like to speak at the public hearing, please register using
the online registration form available at: https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry. You may also
register by contacting Tonya Blatcher at (919) 541-1929 or by email at
[email protected]. To register to speak, we request the following
information: The time you wish to speak, name, affiliation, email
address, and telephone number. If you register to speak online, you do
not need to call. If you require reasonable accommodations, such as the
service of a translator, please let us know as soon as possible, but no
later than May 22, 2018.
The last day to pre-register to register to speak at the hearing
will be Tuesday, May 25, 2018. On May 28, 2018, the EPA will post a
general agenda for the hearing that will list pre-registered speakers
in approximate order. The general agenda will be posted at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry. The
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearing to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing at
the hearing registration desk. The EPA will make every effort to
accommodate all speakers who arrive and register, although preferences
on speaking times may not be able to be fulfilled.
SUPPLEMENTARY INFORMATION: Public hearing. Each commenter will have 5
minutes to provide oral testimony. The EPA encourages commenters to
provide the EPA with a copy of their oral testimony electronically (via
email) or in hard copy form.
The EPA may ask clarifying questions during the oral presentations,
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing. Commenters
should notify Tonya Blatcher at (919) 541-1929 or by email at
[email protected] if they will need specific equipment, or if
there are other special needs related to providing comments at the
hearings. Verbatim transcripts of the hearings and written statements
will be included in the docket for the rulemaking.
Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry. While the EPA expects the hearing to go
forward as set forth above, please monitor our website or contact Tonya
Blatcher at (919) 541-1929 or by email at [email protected] to
determine if there are any updates. The EPA does not intend to publish
a document in the Federal Register announcing updates.
The EPA will not provide audiovisual equipment for presentations
unless we receive special requests in advance. Commenters should notify
Tonya Blatcher when they pre-register to speak that they will need
specific equipment. If you require the service of a translator or
special accommodations such as audio description, please pre-register
for the hearing and describe your needs by May 22, 2018. We may not be
able to arrange for accommodations without advance notice.
The information presented in this preamble is organized as follows:
I. General Information
[[Page 20777]]
A. What entities are potentially affected by this action?
B. Where can I get a copy of this document and other related
information?
II. Purpose of this Proposed Action
A. Overview
B. Authority for Proposed Action
C. Rationale for Proposed Action
III. Background
A. FIPs Under the Indian Country Minor NSR Rule
B. Uinta Basin Air Quality and Intended Nonattainment
Designation
IV. Summary of Proposed Amendments
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. What entities are potentially affected by this action?
Entities potentially affected by this proposal include the Ute
Indian Tribe,\1\ as well as new and modified true minor sources that
are in the oil and natural gas production and natural gas processing
segments of the oil and natural gas sector and are on Indian country
\2\ lands within the U&O Reservation. All of the Ute Indian Tribe
Indian country lands of which the EPA is aware are located within the
exterior boundaries of the Reservation, and these amendments will apply
to all such lands. To the extent that there are Ute Indian Tribe
dependent Indian communities under 18 U.S.C. 1151(b) or allotted lands
under 18 U.S.C. 1151(c) that are located outside the exterior
boundaries of the Reservation, those lands will not be covered by these
amendments.\3\ In addition, this proposed rule will not apply to any
sources not on Indian country lands, including any areas within the
exterior boundaries of the Reservation that are not Indian country
lands.\4\
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\1\ The Ute Indian Tribe is a federally recognized tribe
organized under the Indian Reorganization Act of 1934, with a
Constitution and By-Laws adopted by the Tribe on December 19, 1936,
and approved by the Secretary of the Interior on January 19, 1937.
See Indian Entities Recognized and Eligible to Receive Services from
the United States Bureau of Indian Affairs, 82 FR 4915 (January 17,
2017); 48 Stat. 984, 25 U.S.C. 5123 (IRA); Constitution and By-Laws
of the Ute Indian Tribe of the Uintah and Ouray Reservation,
available at https://www.loc.gov/law/help/american-indian-consts/PDF/37026342.pdf.
\2\ Indian country is defined at 18 U.S.C. 1151 as: (a) All land
within the limits of any Indian reservation under the jurisdiction
of the United States Government, notwithstanding the issuance of any
patent, and, including rights-of-way running through the
reservation, (b) all dependent Indian communities within the borders
of the United States whether within the original or subsequently
acquired territory thereof, and whether within or without the limits
of a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running
through the same.
\3\ Under the Clean Air Act (CAA), lands held in trust for the
use of an Indian tribe are reservation lands within the definition
at 18 U.S.C. 1151(a), regardless of whether the land is formally
designated as a reservation. See Indian Tribes: Air Quality Planning
and Management, 63 FR 7254, 7258 (1998) (``Tribal Authority Rule'');
Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1285-86 (D.C. Cir.
2000). The EPA's references in this FIP to Indian country lands
within the exterior boundaries of the U&O Reservation include any
such tribal trust lands that may be acquired by the Ute Indian
Tribe. In addition, in 2014, the U.S. Court of Appeals for the D.C.
Circuit addressed EPA's authority to promulgate a FIP establishing
certain CAA permitting programs in Indian country. Oklahoma Dept. of
Environmental Quality v. EPA, 740 F. 3d 185 (D.C. Cir. 2014). In
that case, the court recognized the EPA's authority to promulgate a
FIP to directly administer CAA programs on Indian reservations, but
invalidated the FIP at issue as applied to non-reservation areas of
Indian country in the absence of a demonstration of an Indian
tribe's jurisdiction over such non-reservation area. Because the
current proposed rule would apply only on Indian country lands that
are within the exterior boundaries of the U&O Reservation, i.e., on
Reservation lands, it is unaffected by the Oklahoma court decision.
\4\ As a result of a series of federal court decisions, there
are some areas within the exterior boundaries of the Uintah and
Ouray Indian Reservation that are not Indian country lands. See Ute
Indian Tribe v. Utah, 521 F. Supp. 1072 (D. Utah 1981); Ute Indian
Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983); Ute Indian Tribe v.
Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc), cert. denied, 479
U.S. 994 (1986); Hagen v. Utah, 510 U.S. 399 (1994); Ute Indian
Tribe v. Utah, 935 F. Supp. 1473 (D. Utah 1996); Ute Indian Tribe v.
Utah, 114 F.3d 1513 (10th Cir. 1997), cert. denied, 522 U.S. 1107
(1998); Ute Indian Tribe v. Utah, 790 F.3d 1000 (10th Cir. 2015),
cert. denied, 136 S. Ct. 1451 (2016); and Ute Indian Tribe v. Myton,
835 F.3d 1255 (10th Cir. 2016), cert. denied, 137 S. Ct. 2328
(2017).
Table 1--Source Categories Affected by This Action
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Examples of regulated
Industry category NAICS code \a\ entities/description of
industry category
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Oil and Natural Gas Production/ 21111 Exploration for crude
Operations. petroleum and natural
gas; drilling,
completing, and
equipping wells;
operation of
separators, emulsion
breakers, desilting
equipment, and field
gathering lines for
crude petroleum and
natural gas; and all
other activities in
the preparation of oil
and natural gas up to
the point of shipment
from the producing
property.
Production of crude
petroleum, the mining
and extraction of oil
from oil shale and oil
sands, the production
of natural gas, sulfur
recovery from natural
gas, and the recovery
of hydrocarbon liquids
from oil and natural
gas field gases.
Crude Petroleum and Natural Gas 211111 Exploration,
Extraction. development and/or the
production of
petroleum or natural
gas from wells in
which the hydrocarbons
will initially flow or
can be produced using
normal pumping
techniques or
production of crude
petroleum from surface
shales or tar sands or
from reservoirs in
which the hydrocarbons
are semisolids.
Natural Gas Liquid Extraction.. 211112 Recovery of liquid
hydrocarbons from oil
and natural gas field
gases; and sulfur
recovery from natural
gas.
Drilling Oil and Natural Gas 213111 Drilling oil and
Wells. natural gas wells for
others on a contract
or fee basis,
including spudding in,
drilling in,
redrilling, and
directional drilling.
[[Page 20778]]
Support Activities for Oil and 213112 Performing support
Natural Gas Operations. activities on a
contract or fee basis
for oil and natural
gas operations (except
site preparation and
related construction
activities) such as
exploration (except
geophysical surveying
and mapping);
excavating slush pits
and cellars, well
surveying; running,
cutting, and pulling
casings, tubes, and
rods; cementing wells,
shooting wells;
perforating well
casings; acidizing and
chemically treating
wells; and cleaning
out, bailing, and
swabbing wells.
Engines (Spark Ignition and 22111 Provision of electric
Compression Ignition) for power to support oil
Electric Power Generation. and natural gas
production where
access to the electric
grid is unavailable.
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\a\ North American Industry Classification System.
This list is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be potentially affected
by this action. To determine whether your facility could be affected by
this action, you should examine the applicability criteria in the
Federal Minor NSR Program in Indian Country and the National O&NG FIP
(40 Code of Federal Regulations (CFR) 49153 and 49.101, respectively).
If you have any questions regarding the applicability of this action to
a particular entity, contact the appropriate person listed in the FOR
FURTHER INFORMATION CONTACT section.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this final rule will also be available on the World Wide Web. Following
signature by the EPA Administrator, a copy of this final rule will be
posted in the regulations and standards section of our NSR home page
located at https://www.epa.gov/nsr and on the tribal NSR page at https://www.epa.gov/tribal-air/tribal-minor-new-source-review.
II. Purpose of This Proposed Action
A. Overview
In this action, the EPA is proposing to exercise its authority, in
accordance with section 110(a)(2)(C) of the CAA and under sections
301(a) and 301(d)(4) of the CAA and 40 CFR 49.11 by amending the
National O&NG FIP \5\ to extend it to eligible true minor oil and
natural gas sources in the Indian country portion of the intended Uinta
Basin Ozone Nonattainment Area, which includes making it available as a
mechanism for authorizing construction in that area. (The Indian
country lands within the Uinta Basin to which these amendments would
apply are on the U&O Reservation.)
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\5\ ``Federal Implementation Plan for True Minor Sources in
Indian Country in the Oil and Natural Gas Production and Natural Gas
Processing Segments of the Oil and Natural Gas Sector; Amendments to
the Federal Minor New Source Review Program in Indian Country to
Address Requirements for True Minor Sources in the Oil and Natural
Gas Sector,'' U.S. Environmental Protection Agency, 81 FR 35943,
June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
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The National O&NG FIP provides a mechanism for authorizing
construction for eligible true minor oil and natural gas sources
wishing to locate or expand in areas of Indian country designated as
attainment, unclassifiable and attainment/unclassifiable. The counties
in the Uinta Basin are currently designated as unclassifiable with
respect to the 2008 ozone National Ambient Air Quality Standards
(NAAQS) \6\ and, as such, owners/operators of eligible oil and natural
gas sources on Indian country lands within the U&O Reservation have
been utilizing the National O&NG FIP's streamlined approach to satisfy
permitting requirements since August 2, 2016, when the FIP became
effective. However, the EPA has announced its intention to designate
portions of the Uinta Basin, including the U&O Reservation, as
nonattainment for the 2015 ozone NAAQS.7 8
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\6\ ``Air Quality Designations for the 2008 Ozone National
Ambient Air Quality Standards; Implementation of the 2008 National
Ambient Air Quality Standards for Ozone: Nonattainment Area
Classifications Approach, Attainment Deadlines and Revocation of the
1997 Ozone Standards for Transportation Conformity Purposes,'' U.S.
Environmental Protection Agency, 77 FR 30087, May 21, 2012, https://www.gpo.gov/fdsys/pkg/FR-2012-05-21/pdf/2012-11618.pdf.
\7\ The EPA intends to make final designation determinations for
the areas of the country addressed by the EPA responses to state and
tribal area boundary recommendations (which cover the Uinta Basin
region) no earlier than 120 days from the date (December 21, 2017)
the EPA notified states and tribes of the agency's intended
designations.
\8\ ``EPA Responses to Certain State Designation Recommendations
for the 2015 Ozone National Ambient Air Quality Standards: Notice of
Availability and Public Comment Period,'' U.S. Environmental
Protection Agency, 83 FR 651, January 5, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-01-05/pdf/2018-00024.pdf.
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The Uinta Basin is a petroleum producing system that contains
thousands of active oil and natural gas wells, and existing oil and
natural gas production activity is the primary source of the emissions
of concern for air quality: volatile organic compounds (VOC) and
nitrogen oxides (NOX), ozone precursors that react to form
ozone in the presence of sunlight and widespread snow cover. The Uinta
Basin's air quality problem is wintertime ozone caused by these
existing sources' emissions. However, because the agency is under a
court order to finalize the Basin's designation with respect to the
2015 ozone NAAQS by April 30, 2018,\9\ and because the agency intends
to designate some portions of the Basin as nonattainment, including
portions of the U&O Reservation, under the National O&G FIP, in its
current form, the Indian country portions of the Basin (U&O
Reservation) will fall out of that FIP's coverage. Thus, the area will
lack a streamlined mechanism to authorize construction of true minor
new and modified oil and natural gas sources. This will immediately
cause a disparity in the regulatory landscape facing such activity in
the affected area, as compared to all other areas of Indian country
that will remain covered by the FIP--even though the Basin's air
quality problem that drives the impending nonattainment designation
will not manifest until the winter.
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\9\ In re Ozone Designation Litigation, No. 17-cv-06900-HSG
(N.D. Cal. March 12, 2018).
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With this proposed action, the EPA is proposing to ensure that the
National O&NG FIP's requirements to comply with eight federal rules
(and the mechanism for authorizing construction) will continue to apply
on the U&O Reservation, recognizing that the geographically limited
extension of the National O&NG FIP to the area is occurring while the
EPA moves quickly to complete a separate rulemaking to
[[Page 20779]]
further address the air quality problem on the U&O Reservation.
The separate EPA rulemaking \10\ addressing air quality is a
reservation-specific FIP action that will contain requirements to
reduce ozone-forming emissions from new, modified and existing oil and
natural gas sources on Indian country lands within the U&O Reservation.
The rulemaking will seek to achieve three goals for the Indian country
portion of the Uinta Basin: (1) Clean air; (2) continued, uninterrupted
development of the oil and natural gas resources; and (3) consistent
CAA regulatory requirements between Indian country lands within the U&O
Reservation and lands under state of Utah jurisdiction. Through that
rulemaking, the EPA will address the Uinta Basin's particular situation
in an area-specific manner; this proposal today seeks to bridge the gap
in authority that the nonattainment designation will cause during the
interim period where the designation will be in place, but the
environmental needs requiring area-specific treatment have not yet
materialized.
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\10\ The rulemaking is listed on the Office of Management and
Budget's Unified Agenda of Regulatory and Deregulatory Actions. For
more information, go to: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=2008-AA03. In the Agenda, the
rulemaking appears as: ``Federal Implementation Plan for Oil and
Natural Gas Sources; Uintah and Ouray Indian Reservation in Utah.''
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B. Authority for Proposed Action
CAA section 110(a)(2)(C) is part of the foundation for the minor
NSR program, and it requires states to submit plans that include
programs for the regulation of ``the modification and construction of
any stationary source.'' \11\ CAA section 110(c) authorizes the EPA to
promulgate a Federal implementation plan in the absence of a
satisfactory state plan. CAA section 301(a) generally authorizes the
EPA to prescribe regulations as are necessary to carry out its
functions under the Act.
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\11\ Section 110(a)(2)(C) of the CAA requires state plans to
include ``a program to provide for the . . . regulation of the
modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that national
ambient air quality standards are achieved, including a permit
program as required in parts C and D of this subchapter.''
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Section 301(d) of the CAA authorizes the EPA to treat Indian tribes
in the same manner as states and directs the EPA to promulgate
regulations specifying those provisions of the CAA for which such
treatment is appropriate. (CAA sections 301(d)(1) and (2)). It also
authorizes the EPA, in circumstances in which the EPA determines that
the treatment of Indian tribes as identical to states is inappropriate
or administratively infeasible, to provide by regulation other means by
which the EPA will directly administer the CAA. (CAA section
301(d)(4)). Acting principally pursuant to that authority, on February
12, 1998,\12\ the EPA promulgated what we refer to as the Tribal
Authority Rule (TAR). (40 CFR 49.1-49.11). In the TAR, we determined
that it was appropriate to treat tribes in the same manner as states
for all CAA and regulatory purposes except a list of specified CAA
provisions and implementing regulations thereunder. (40 CFR 49.4).
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\12\ ``Indian Tribes: Air Quality Planning and Management,''
U.S. Environmental Protection Agency, 63 FR 7254, February 12, 1998,
https://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
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The TAR preamble clarified that by including CAA section 110(c)(1)
on the Sec. 49.4 ``exception'' list, ``EPA is not relieved of its
general obligation under the CAA to ensure the protection of air
quality throughout the nation, including throughout Indian country.''
The preamble confirmed that the ``EPA will continue to be subject to
the basic requirement to issue a FIP for affected tribal areas within
some reasonable time.'' \13\ The TAR includes a provision that provides
the EPA the authority to promulgate a Federal implementation plan in
the absence of a satisfactory tribal plan. (40 CFR 49.11(a)).
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\13\ See CAA section 301(a) and 63 FR 7254, 7265, February 12,
1998, https://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.
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On August 21, 2006, the EPA proposed the regulation: ``Review of
New Sources and Modifications in Indian Country'' (commonly referred to
as the Federal Indian Country NSR rule).\14\ With this proposed
regulation, the EPA proposed to protect air quality in Indian country,
as defined in 18 U.S.C. 1151, by establishing a FIP program to
regulate, among other matters, the modification and construction of
minor stationary sources consistent with the authorities and
requirements of sections 301 and 110(a)(2)(C) of the CAA. We refer to
this part of the Federal Indian Country NSR rule as the Federal Indian
Country Minor NSR rule. Under the Federal Indian Country Minor NSR
rule, we proposed to provide a mechanism for issuing pre-construction
permits for the construction of new minor sources and certain
modifications of major and minor sources in Indian country. We
promulgated a final rule on July 1, 2011,\15\ and the rule became
effective on August 30, 2011. The Federal Indian Country Minor NSR rule
applies to new and modified minor stationary sources and to minor
modifications at existing major stationary sources located in Indian
country where there is no EPA-approved program in place for all new and
modified minor sources and minor modifications at major sources located
in areas covered by the Federal Indian Country Minor NSR rule.
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\14\ ``Review of New Sources and Modifications in Indian
Country,'' U.S. Environmental Protection Agency, 71 FR 48696, August
21, 2006, https://www.gpo.gov/fdsys/pkg/FR-2006-08-21/pdf/06-6926.pdf.
\15\ ``Review of New Sources and Modifications in Indian
Country,'' U.S. Environmental Protection Agency, 76 FR 38748, July
1, 2011, https://www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/2011-14981.pdf.
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Tribes can elect to develop and implement their own EPA-approved
program under the TAR,\16\ but they are not required to do so.\17\ In
the absence of an approved program, the EPA implements this program.
Alternatively, tribes can take delegation of the program from the EPA
to assist the EPA with administration of the federal program, including
acting as the Reviewing Authority for the EPA.
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\16\ To obtain eligibility to develop and implement an EPA-
approved plan, under the TAR a tribe must meet four requirements:
(1) be a federally recognized tribe, (2) have a functioning
government, (3) have the legal authority and (4) have the capacity
to run the program. For more information, see 63 FR 7254, February
12, 1998, https://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
\17\ Under tribal law, tribes may also be able to establish
permit fees under a tribal permitting program, as do most states.
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Under the Federal Indian Country Minor NSR rule, initially
beginning September 2, 2014,\18\ any new stationary source, that will
emit, or will have the potential to emit, a regulated NSR pollutant in
amounts that will be: (a) Equal to or greater than the minor NSR
thresholds established in the Federal Indian Country Minor NSR rule;
but (b) less than the amount that would qualify the source as a major
source or a major modification for purposes of the Prevention of
Significant Deterioration (PSD) or nonattainment major NSR programs,
must apply for and obtain a minor NSR permit before beginning
construction of the new source. Likewise, any existing stationary
source (minor or major) must apply for and obtain a minor NSR permit
before beginning construction (a physical or operational change) that
will increase the allowable emissions of the stationary source by more
than the specified threshold amounts, if the change does not otherwise
trigger the permitting requirements of the PSD or
[[Page 20780]]
nonattainment major NSR program(s).\19\ The Federal Indian Country
Minor NSR rule also created a framework for the EPA to streamline the
issuance of pre-construction permits to true minor sources by using
general permits.
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\18\ For true minor sources in the oil and natural gas sector,
this date was extended twice. The final date of October 3, 2016, was
included in the National O&NG FIP.
\19\ A source may, however, be subject to certain monitoring,
recordkeeping and reporting (MRR) requirements under the major NSR
programs, if the change has a reasonable possibility of resulting in
a major modification. A source may be subject to both the Federal
Indian Country Minor NSR rule and the reasonable possibility MRR
requirements of the major NSR program(s).
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In promulgating the National O&NG FIP we determined that it was
appropriate to promulgate a FIP to remedy an existing regulatory gap
with respect to oil and natural gas production and natural gas
processing operations in areas covered by the Federal Indian Country
Minor NSR rule where there is no EPA-approved plan in place. The
authority that underlies and supports the National O&NG FIP (as well as
the Federal Indian Country Minor NSR FIP) also authorizes this proposed
action, which simply would amend the National O&NG FIP. In summary,
just as we had the authority to establish the National O&NG FIP, we
believe that we have authority under the CAA (sections 301(a),
301(d)(4) and 110(a)(2)(C)) and regulatory authority under the TAR (40
CFR 49.1-49.11) to carry out this action and extend the applicability
of the National O&NG FIP to the Indian country portion of the Uinta
Basin Ozone Nonattainment Area. As described above, the CAA provides
broad authority to manage air resources throughout Indian country,
regardless of area designation under the CAA. This is well established
authority and we have exercised it on many occasions, including to
regulate activity in areas of Indian country designated nonattainment.
Foremost, the Agency is responsible for ensuring that NAAQS are
achieved throughout Indian country and to implement CAA programs in
Indian country that tribal governments do not elect to implement. This
proposed action is consistent with and supported by our successful use
of these authorities in these prior actions.
Finally, in light of the intended, pending final designation of
nonattainment for the Uinta Basin for the 2015 ozone NAAQS, this action
is consistent with the CAA general provisions for nonattainment areas
in CAA sections 172(b) and 172(c), which include references to CAA
section 110(a)(2), as well as the major source nonattainment NSR
permitting program in CAA section 173. This proposed action is
consistent with CAA section 110(a)(2)(C), which requires that
implementation plans include programs for all areas (attainment and
nonattainment) that provide for the regulation of the modification and
construction of any stationary source ``as necessary to assure that
national ambient air quality standards are achieved'' for the reasons
discussed elsewhere in this document. In addition, CAA sections 172 and
173 provide that programs relating to permits to construct for major
sources should take into consideration emissions from existing sources,
as well as new or modified sources that ``are not major emitting
facilities,'' i.e., new or modified minor sources. Thus, the emissions
from minor sources covered by this action would be considered in CAA
section 173 major source permitting actions in the intended Uinta Basin
Ozone Nonattainment Area, though they are not directly subject to
regulation under CAA sections 172 and 173.\20\
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\20\ The Federal Indian Country NSR rule also provides for major
source permitting in nonattainment areas in Indian country. See 76
FR 38748, July 1, 2011, https://www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/2011-14981.pdf.
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C. Rationale for Proposed Action
In the preamble to the final National O&NG FIP, we made clear that
we could extend the geographic coverage of the FIP to nonattainment
areas, provided that we also addressed existing, new and modified
sources in a separate, reservation-specific FIP. We stated the need to
develop area-specific plans if and when areas of Indian country become
nonattainment. Further, we specifically noted concern about the air
quality problem in the Uinta Basin and indicated our intent to propose
a separate reservation-specific FIP to address the issue.
The extension of the National O&NG FIP proposed in this document
will, if finalized, provide coverage under the National O&NG FIP for
Indian country portion of the intended Uinta basin Ozone Nonattainment
Area after EPA's intended designation of portions of the Uinta Basin as
being in nonattainment of the 2015 ozone NAAQS, which the EPA intends
to issue by April 30, 2018. We indicated in the preamble to the final
National O&NG FIP that we intended ``to potentially apply the national
FIP's requirements as appropriate to nonattainment areas where the EPA
has established a separate, area-specific FIP.''\21\ The EPA does
intend to do just that for the Indian country portion of the intended
Uinta Basin Ozone Nonattainment Area, but in the meantime we are
proposing this action. The agency believes that this approach is
reasonable in light of the following considerations.
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\21\ See 81 FR 35943, 35946, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
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First, as noted above, the EPA is moving quickly to undertake a
separate rulemaking to establish a U&O Reservation-specific FIP for the
area. We intend to complete this other action--the U&O Reservation-
specific FIP--before the start of the 2018-2019 winter ozone season in
the Uinta Basin. Our intent is for the FIP to contain VOC emissions
control requirements that will apply to existing, new and modified
minor oil and natural gas sources on the U&O Reservation. Our intent is
for some of those requirements (i.e., VOC requirements on new and
modified minor sources) to apply before the start of the 2018-2019
winter ozone season on the U&O Reservation, by which time we expect the
final U&O Reservation-specific FIP to be effective with the
requirements on existing oil and natural gas minor sources to follow.
It should also be noted that preliminary monitoring data from the
current 2017-2018 winter ozone season from across the region show
values well below the 2015 ozone NAAQS.\22\
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\22\ See spreadsheet titled: ``Uinta Basin Ozone Data, Dec.
2017-Feb. 2018,'' Docket No. EPA-HQ-OAR-2014-0606.
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Second, the relatively short, initial period of time before a U&O
Reservation-specific FIP is in place during which the National O&NG FIP
will apply to the U&O Reservation (as part of the expected Uinta Basin
Ozone Nonattainment Area), will be before the Uinta Basin winter ozone
season. As noted above, the Uinta Basin does not have a summertime
ozone air quality problem. We are, therefore, confident that--with this
action--the eight emissions standards that apply to oil and natural gas
sources under the National O&NG FIP will continue to be adequately
protective of air quality in the U&O Reservation while we complete the
separate rulemaking to establish a U&O Reservation-specific FIP, all of
which we expect to occur before the start of the 2018-2019 winter ozone
season in the Uinta Basin.
Finally, the two-part approach we are taking is similar to the
process that occurs under the CAA when an area within a state is
designated nonattainment: A plan addressing the air quality problem is
not due to the EPA until a period of time after an area is designated
nonattainment. Thus, the approach we are presenting here, we believe,
is reasonable.
[[Page 20781]]
We also believe that this action--along with the EPA's related,
forthcoming action to reduce oil and natural gas source emissions in
the area--will address the air quality problem on the U&O Reservation,
while maintaining a mechanism for authorizing construction that helps
ensure continued oil and natural gas production on the U&O Reservation
in compliance with the eight federal rules that apply to true minor oil
and natural gas sources under the FIP.\23\ Based on feedback from Ute
Indian Tribe leadership, continued oil and natural gas production is
important for the maintenance of the local tribal economy, as the Ute
Indian Tribe is dependent upon oil and natural gas revenue for its
economic prosperity. Because the action we propose today will avoid
disruption of that activity during the period before the wintertime
ozone problem manifests, while the EPA works to promulgate an area-
specific protective measure to address that problem, the agency
believes this course of action will appropriately protect the Basin's
environment without causing unnecessary disruption to its economy.
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\23\ This includes the EPA's New Source Performance Standards
(NSPS) for oil and natural gas sources (40 CFR part 60, subpart
OOOO) with affected facilities that commenced construction,
modification or reconstruction after August 23, 2011. The standard
includes emissions standards for VOC and sulfur dioxide
(SO2) from a number of units, including storage tanks,
compressors, and pneumatic controllers.
---------------------------------------------------------------------------
We are proposing that the extension of the National O&NG FIP to
eligible true minor oil and natural gas sources in the Indian country
portion of the intended Uinta Basin Ozone Nonattainment Area be
permanent. However, we also are seeking comment on whether, instead, it
should be temporary and expire before the onset of the 2018-2019 ozone
season. We seek comment on whether the extension should be temporary,
in light of the facts surrounding the Uinta Basin's situation as
described above and with respect to: (1) This proposed action, (2) its
impending nonattainment designation, and (3) the forthcoming area-
specific FIP.
In particular, we seek comment on how the EPA can protect air
quality on the U&O Reservation and ensure continued oil and natural gas
development under two general scenarios. In the first scenario, we
finalize the extension as permanent, as proposed, but we do not
complete the U&O Reservation-specific FIP by the start of the 2018-2019
Uinta Basin winter ozone season. A concern may be that continuing to
allow the Uinta Basin Ozone Nonattainment Area to be covered by the
National O&NG FIP in the absence of any emissions reductions that may
be associated with the U&O Reservation-specific FIP. We seek comment
relating to this scenario, including on what the Agency could do in
this action, when finalized, to mitigate possible impacts.
In another scenario, we, instead finalize the extension as
temporary and we set it to expire at the end of calendar year 2018,
say, but we do not complete the U&O Reservation-specific FIP by the
start of the 2018-2019 Uinta Basin winter ozone season. Here, the
concern would be the effect on oil and natural gas activity on the U&O
Reservation, if the area loses coverage under the National O&NG FIP. In
the absence of other measures, sources in the Indian country portion of
Uinta Basin Ozone Nonattainment Area (the U&O Reservation) would need
to obtain source-specific minor source permits in order to construct
and operate. Oil and natural gas owners and operators in the U&O
reservation and the Ute Indian Tribe have significant concerns about
delays associated with this type of permitting. As noted above, the Ute
Indian Tribe relies on revenue from oil and natural gas activity for
its livelihood and has expressed concerns about the lengthier
timeframes associated with EPA approvals under source-specific
permitting. We seek comment relating to this scenario, including on
what the Agency could do to mitigate possible impacts.
III. Background
A. FIPs Under the Indian Country Minor NSR Rule
1. Federal Indian Country Minor NSR Rule
As noted above, CAA section 301(d)(4) authorizes the EPA to issue
regulations directly administering, in Indian country, provisions of
the Act. Exercising its authority, including its authority under
301(d)(4), the EPA promulgated the Federal Indian Country Minor NSR
rule, a type of FIP. We identified a regulatory gap that could have the
effect of adversely impacting air quality due to the lack of approved
minor NSR permit programs to regulate construction of new and modified
minor sources and minor modifications of major sources in areas covered
by the Federal Indian Country Minor NSR rule. The EPA promulgated the
FIP to ensure that air resources are protected by establishing a
preconstruction permitting program to regulate emission increases
resulting from construction and modification activities that are not
already regulated by the major NSR permitting programs.
2. National O&NG FIP
Following the issuance of the Federal Indian Country Minor NSR FIP,
EPA proposed the National O&NG FIP.\24\ Because there were no currently
approved TIPs specifically applying to the issuance of general permits
with respect to the reduction of emissions related to oil and natural
gas production facilities, we proposed a FIP to protect air quality in
areas covered by the Federal Indian Country Minor NSR rule. The
National O&NG FIP was published in final form on June 3, 2016.\25\ The
National O&NG FIP adopted legally and practicably enforceable
requirements to control and reduce air emissions from oil and natural
gas production.
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\24\ ``Review of New Sources and Modifications in Indian
Country: Federal Implementation Plan for Managing Air Emissions from
True Minor Sources Engaged in Oil and Natural Gas Production in
Indian Country,'' U.S. Environmental Protection Agency, 80 FR 56553,
September 18, 2005, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21025.pdf.
\25\ See 81 FR 35943, 35946, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
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The National O&NG FIP was developed to protect air quality in
Indian country due to the impact of new true minor sources and minor
modifications at existing true minor sources in the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector that are locating or expanding in an Indian reservation or
in another area of Indian country over which a tribe, or the EPA, has
demonstrated that the tribe has jurisdiction. The FIP applies to new
and modified true minor sources that are located or expanding in such
areas of Indian country designated as attainment, unclassifiable or
attainment/unclassifiable. It currently does not apply to new and
modified true minor sources that are located or expanding in such areas
of Indian country designated nonattainment. However, this action
proposes to extend the National O&NG FIP's geographic coverage to the
Uinta Basin Ozone Nonattainment Area. The FIP does not apply to minor
modification of major sources; such sources are required to obtain a
source-specific permit prior to beginning construction, per the Federal
Indian Country Minor NSR rule.
The National O&NG FIP fulfills the EPA's obligation under the
Federal Indian Country Minor NSR rule to issue minor source NSR pre-
construction permits to oil and natural gas sources. The National O&NG
FIP provides a streamlined, alternative approach that
[[Page 20782]]
fulfills the permitting requirement, while also ensuring air quality
protection through requirements that are unambiguous and legally and
practicably enforceable. The FIP approach is also transparent to the
public: It is clear to the public what requirements will apply. The FIP
reduces burden for sources and the Reviewing Authority and minimizes
potential delays in new construction due to compliance with the minor
NSR permitting obligation. True minor sources in the oil and natural
gas production and natural gas processing segments of the oil and
natural gas sector are required to comply with the FIP instead of
obtaining a source-specific minor source permit, unless a source
chooses to opt out of the FIP and to obtain a source-specific minor NSR
permit instead.
Under the FIP, we require owners/operators of oil and natural gas
production facilities and natural gas processing plants to comply with
eight federal standards to reduce emissions of VOC, NOX,
SO2, particulate matter (PM, PM10,
PM2.5), hydrogen sulfide, carbon monoxide and various sulfur
compounds from the following units/processes in the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector: Compression ignition and spark ignition engines; process
heaters; combustion turbines; fuel storage tanks; glycol dehydrators;
completion of hydraulically fractured oil and natural gas wells;
reciprocating and centrifugal compressors (except those located at well
sites); pneumatic controllers; pneumatic pumps; storage vessels; and
fugitive emissions from well sites, compressor stations and natural gas
processing plants. The oil and natural gas FIP requires compliance with
five NSPS and three national emission standards for hazardous air
pollutants (NESHAP).\26\ These regulations are listed in Table 2.
---------------------------------------------------------------------------
\26\ Though this FIP only addresses new and modified true minor
sources, it is important to note that NESHAPs not only apply to new
sources but to existing sources as well.
---------------------------------------------------------------------------
The eight regulations and the provisions of each that are included
in the oil and natural gas FIP are discussed in more detail in this
section. The FIP's requirements include emission standards (that
contain emission limitations), monitoring, testing, recordkeeping and
reporting. For purposes of the National O&NG FIP, true minor sources
must comply with these standards, as they currently exist or as amended
in the future, except for those provisions that we specifically exclude
under the National O&NG FIP (unless the source opts out of the FIP and
obtains a source-specific permit or is otherwise required to obtain a
source-specific permit by the Reviewing Authority). Sources subject to
the National O&NG FIP would be subject to any future changes to the
eight underlying EPA standards only if they undergo a future minor
modification as a true minor source and would otherwise be subject to
those future changes. (The National O&NG FIP does not change the
applicability of the specified standards, nor does it relieve sources
subject to the standards from complying with them, independently of the
National O&NG FIP.)
Table 2--Eight Federal Rules Included in the Oil and Natural Gas FIP for Indian Country \27\
----------------------------------------------------------------------------------------------------------------
Potentially
affected sources
in the oil and
natural gas
production and
40 CFR part and subpart Title of subpart natural gas Location
processing
segments of the
oil and natural
gas sector
----------------------------------------------------------------------------------------------------------------
40 CFR part 63, subpart DDDDD....... National Emission Process heaters.. https://www.ecfr.gov/cgi-bin/text-
Standards for idx?SID=9f31077f895e9cb417f5386519
Hazardous Air 941a47&mc=true&node=sp40.14.63.ddd
Pollutants for dd&rgn=div6.
Major Sources:
Industrial,
Commercial, and
Institutional
Boilers and
Process Heaters.
40 CFR part 63, subpart ZZZZ........ Subpart ZZZZ-- Reciprocating https://www.ecfr.gov/cgi-bin/text-
National Internal idx?c=ecfr;rgn=div6;view=text;node
Emissions Combustion =40%3A14.0.1.1.1.1;idno=40;sid=e94
Standards for Engines. dcfde4a04b27290c445a56e635e58;cc=e
Hazardous Air cfr.
Pollutants for
Stationary
Reciprocating
Internal
Combustion
Engines.
40 CFR part 60, subpart IIII........ Standards of Compression https://www.ecfr.gov/cgi-bin/text-
Performance for Ignition idx?SID=9f31077f895e9cb417f5386519
Stationary Internal 941a47&mc=true&node=sp40.7.60.iiii
Compression Combustion &rgn=div6.
Ignition Internal Engines.
Combustion
Engines.
40 CFR part 60, subpart JJJJ........ Standards of Spark Ignition https://www.ecfr.gov/cgi-bin/text-
Performance for Internal idx?SID=9f31077f895e9cb417f5386519
Stationary Spark Combustion 941a47&mc=true&node=sp40.7.60.jjjj
Ignition Internal Engines. &rgn=div6.
Combustion
Engines.
40 CFR part 60, subpart Kb.......... Standards of Fuel Storage https://www.ecfr.gov/cgi-bin/text-
Performance for Tanks. idx?SID=9f31077f895e9cb417f5386519
Volatile Organic 941a47&mc=true&node=sp40.7.60.k_0b
Liquid Storage &rgn=div6.
Vessels
(Including
Petroleum Liquid
Storage Vessels)
for Which
Construction,
Reconstruction,
or Modification
Commenced After
July 23, 1984.
40 CFR part 60, subpart OOOOa....... Standards of Storage Vessels, https://www.epa.gov/controlling-air-
Performance for Pneumatic pollution-oil-and-natural-gas-
Crude Oil and Controllers, industry/actions-and-notices-about-
Natural Gas Compressors oil-and-natural-gas.
Facilities for (Reciprocating
which and
Construction, Centrifugal),
Modification, or Hydraulically
Reconstruction Fractured Oil
Commenced after and Natural Gas
September 18, Well
2015. Completions,
Pneumatic Pumps
and Fugitive
Emissions from
Well Sites and
Compressor
Stations.
40 CFR part 63, subpart HH.......... National Emission Glycol https://www.ecfr.gov/cgi-bin/text-
Standards for Dehydrators. idx?SID=9f31077f895e9cb417f5386519
Hazardous Air 941a47&mc=true&node=sp40.11.63.hh&
Pollutants from rgn=div6.
Oil and Natural
Gas Production
Facilities.
[[Page 20783]]
40 CFR part 60, subpart KKKK........ Standards of Combustion https://www.ecfr.gov/cgi-bin/text-
Performance for Turbines. idx?SID=4090b6cf5eea5cb67940a80906
New Stationary ff09a2&mc=true&node=sp40.7.60.kkkk
Combustion &rgn=div6.
Turbines.
----------------------------------------------------------------------------------------------------------------
3. National O&NG FIP and Areas of Comment the EPA Received Relevant to
This Action
---------------------------------------------------------------------------
\27\ Three of the eight rules are NESHAPs. Our basis for
requiring compliance with NESHAPs in this rule that is designed to
fulfill requirements of the Federal Indian Country Minor NSR rule is
to address emissions of criteria pollutants. The requirements from
the NESHAPs are included because they effectively control emissions
of all VOC, not just those that are also hazardous air pollutants.
VOC is an NSR-regulated pollutant of concern in the Federal Indian
Country Minor NSR rule.
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In the response to comments section of the preamble to the final
rule establishing the National O&NG FIP, we addressed some issues that
are related to this proposed action.\28\ We provided that the FIP does
not apply in a nonattainment area, but that it could, if we addressed
existing sources in such an area.\29\ We stated that, parallel to
designating such an area is designated as nonattainment, we would
promulgate an area-specific FIP for existing sources if we determine
that it is ``necessary or appropriate'' to do so pursuant to the
TAR.\30\ We received comments concerning extending the geographic reach
of the National O&NG FIP to nonattainment areas. Commenters were
concerned with how permitting requirements would be satisfied in such
areas during the transition period between the time an area is
designated as nonattainment and the time a separate, area-specific FIP
to control emissions adequately in such a nonattainment area is in
place. The Uinta Basin was given as an example of where the absence of
a streamlined means to satisfy permitting requirements during this
transition period could pose problems. In response to the comments, we
stated our intent to potentially apply the National O&NG FIP's
requirements as appropriate to nonattainment areas, where the EPA has
established a separate, area-specific FIP. As discussed earlier, our
proposed approach here is slightly different, in that the extension of
the National O&NG FIP to the Uinta Basin nonattainment area may precede
the separate, area-specific FIP for that area. However, our plan is for
the separate, area-specific FIP to be in place before the next winter
ozone season. Because, as discussed above, ozone problems in the Uinta
Basin are limited to the winter season, we believe this approach is
appropriately protective of air quality, without unduly impeding oil
and natural gas activity in Indian Country.
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\28\ 81 FR 35943, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
\29\ In the preamble to the final National O&NG FIP we also
indicated as a general matter--and not in response to comments--that
new and modified sources also need to be addressed in reservation-
specific FIPs (in addition to existing sources) when considering
whether to extend the geographic coverage of the National O&NG FIP
to nonattainment area. 81 FR 35943, 35964, 35968, June 3, 2016,
https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
\30\ 63 FR 7254, February 12, 1998, https://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
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In addition, we received comments recommending that we add
monitoring and modeling requirements to the National O&NG FIP. Our
response to those comments included a discussion about the state of air
quality in areas of Indian country with oil and natural gas activity.
With respect to air quality in areas of Indian country with oil and
natural gas development, we noted in June 2016 when we promulgated the
National O&NG FIP that we were not seeing widespread air quality
problems in Indian country due to oil and natural gas activity. We
mentioned in June 2016 that, in all of Indian country, only two
counties in the Uinta Basin (including land within the U&O Reservation)
had air quality problems due to oil and natural gas activity. That is
still the case and is discussed further in Section III.C. We had (and
still have) sufficient concerns about the air quality impacts from
existing sources in that area that we intend to soon propose a separate
reservation-specific FIP, which, as noted above, is expected to be in
place before next winter's ozone season.
B. Uinta Basin Air Quality and Intended Nonattainment Designation
On October 1, 2015, the EPA promulgated revised primary and
secondary ozone NAAQS.\31\ The EPA strengthened both standards to a
level of 0.070 parts per million (ppm). In accordance with section
107(d) of the CAA, whenever the EPA establishes a new or revised NAAQS,
the EPA must promulgate designations for all areas of the country for
that NAAQS. The EPA must complete this process within 2 years of
promulgating the NAAQS, unless the Administrator has insufficient
information to make the initial designations decisions in that time
frame. In such circumstances, the EPA may take up to 1 additional year
to complete the designations. Under CAA section 107(d), states were
required to submit area designation recommendations to the EPA for the
2015 ozone NAAQS no later than 1 year following promulgation of the
standards (i.e., by October 1, 2016).
---------------------------------------------------------------------------
\31\ ``National Ambient Air Quality Standards for Ozone,'' U.S.
Environmental Protection Agency, 80 FR 65292, October 26, 2015,
https://www.gpo.gov/fdsys/pkg/FR-2015-10-26/pdf/2015-26594.pdf.
---------------------------------------------------------------------------
On September 29, 2016, the state of Utah provided designation
recommendations for counties in Utah based on air quality data from
2013-2015. The state recommended a designation of nonattainment for
townships in the counties of Duchesne and Uintah under state air
jurisdiction that are at and below the 6,000-ft elevation. On February
26, 2018, the state of Utah provided further input on the nonattainment
boundaries. On September 27, 2016, the Ute Indian Tribe of the Uintah
and Ouray Reservation recommended that the Indian country area at an
unspecified distance around the Ouray ozone monitor in the Uinta Basin
be designated as nonattainment for the 2015 ozone NAAQS based on air
quality data from 2013-2015. However, the Tribe recommended a
designation of attainment for all of Indian country in the Uinta Basin,
assuming the EPA concurs with an exceptional event package submitted to
the agency (by the Tribe) covering two days in June 2015.
On December 20, 2017, in our response to the state and tribal
designation boundary recommendations, we indicated our intent to modify
the state's and tribe's recommendations for the Uinta Basin area. We
provided the intended
[[Page 20784]]
boundary in a Technical Support Document.\32\ In short, the EPA's
boundary for the intended nonattainment area for the Uinta Basin
includes both state and Indian country lands within portions of
Duchesne and Uintah Counties. A comment period followed the EPA's
statement on its intended nonattainment boundaries for the Uinta Basin
and other areas.\33\
---------------------------------------------------------------------------
\32\ Utah: Northern Wasatch Front, Southern Wasatch Front, and
Uinta Basin Intended Area Designations for the 2015 Ozone National
Ambient Air Quality Standards Technical Support Document (TSD),''
U.S. Environmental Protection Agency, December 20, 2017, https://www.epa.gov/sites/production/files/2018-01/documents/ut_120d_tsd.pdf.
\33\ 83 FR 651, January 5, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-01-05/pdf/2018-00024.pdf.
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IV. Summary of Proposed Amendments
This action proposes to amend the National O&NG FIP to extend its
application to eligible true minor oil and natural gas sources in the
Indian country portion of the intended Uinta Basin Ozone Nonattainment
Area, which includes its mechanism for authorizing construction. We
also are proposing to make a technical correction to fix a
typographical error in Sec. 49.101(c).
First, this action proposes to add a new subparagraph to the CFR,
to be codified at Sec. 49.101(e). In the new subparagraph, we are
proposing to narrowly extend the geographic scope of the National O&NG
FIP to cover eligible true minor oil and natural gas sources wishing to
locate or expand in the Indian country portion (U&O Reservation) of the
intended Uinta Basin Ozone Nonattainment Area.\34\ This proposed
extension of coverage to this one nonattainment area does not alter the
FIP's current geographic coverage of attainment, unclassifiable and
attainment/unclassifiable areas with regard to the rest of Indian
country across the nation. The proposed, geographically limited
extension is in addition to the current coverage. Under this proposed
amendment, true minor oil and natural gas sources in the oil and
natural gas production and natural gas processing segments of the oil
and natural gas sector wishing to locate or expand in the Indian
country portion of the intended Uinta Basin Ozone Nonattainment Area
would also have to meet the criteria under Sec. 49.101(b)(1) to
qualify, except for Sec. 49.101(b)(1)(v). Section 49.101(b)(1)(v)
contains the requirement governing the primary geographic scope of the
FIP and not its limited extension to the intended Uinta Basin Ozone
Nonattainment Area, and, thus, would not be relevant for such sources.
In other words, the new paragraph Sec. 49.101(e) would displace
existing Sec. 49.101(b)(1)(v) for Indian country within the intended
Uinta Basin Ozone Nonattainment Area--and only for that area of Indian
country.
---------------------------------------------------------------------------
\34\ Utah: Northern Wasatch Front, Southern Wasatch Front, and
Uinta Basin Intended Area Designations for the 2015 Ozone National
Ambient Air Quality Standards Technical Support Document (TSD),''
U.S. Environmental Protection Agency, December 20, 2017, https://www.epa.gov/sites/production/files/2018-01/documents/ut_120d_tsd.pdf.
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To accomplish this extension, it is also necessary to define the
boundaries of the intended Uinta Basin Ozone Nonattainment Area to
which the National O&G FIP would apply if the EPA finalizes this
proposed rule. To accomplish this, the EPA proposes to incorporate the
boundaries for the intended nonattainment area for the Uinta Basin, or
areas within the Uinta Basin, as defined at 40 CFR part 81,
Designations of Areas for Air Quality Purposes.\35\ The regulatory and
other processes that have occurred within and outside the EPA and
between the EPA and state and tribal governments govern the development
and final decision on the boundaries for the intended Uinta Basin Ozone
Nonattainment Area and not this action.
---------------------------------------------------------------------------
\35\ Ibid.
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Second, this action proposes a technical correction to Sec.
49.101(c), which currently reads: ``When must I comply with Sec. Sec.
49.101 through 49.105? You must comply with Sec. Sec. 49.101 through
49.101 on or after October 3, 2016.'' This provision is supposed to
reference Sec. Sec. 49.101 through 49.105, as the title indicates. We
are proposing to correct it to read: ``When must I comply with
Sec. Sec. 49.101 through 49.105? You must comply with Sec. Sec.
49.101 through 49.105 on or after October 3, 2016.'' The EPA believes
that this is a correction of a self-evident scrivener's error and does
not constitute a substantive change of the existing regulatory
provision.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is expected to be an Executive Order 13771 deregulatory
action. This proposed rule is expected to provide meaningful burden
reduction by extending the streamlined authorization-to-construct
method for true minor new and modified oil and natural gas sources. The
streamlined authorization, which was established by the EPA in 2016,
reduces the resource burden on the permitting authority and regulated
community associated with submitting and reviewing permit applications
for these sources in attainment and unclassifiable areas. This action
proposes to extend the streamlined authorization to the intended Uinta
Basin Ozone Nonattainment Area.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the Federal Indian Country Minor NSR rule and
has assigned OMB control number 2060-0003.\36\ This action amends the
National O&NG FIP which provides a mechanism for authorizing
construction for true minor sources in the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector locating or located in areas covered by the Federal Indian
Country Minor NSR rule to satisfy the requirements of that rule other
than by obtaining a source-specific minor source permit. Because it
substitutes for a source-specific permit, which would contain
information collection activities covered by the Information Collection
Request for Federal Indian Country Minor NSR rule issued in July 2011,
neither the proposed amendments nor the National O&NG FIP impose any
new obligations or enforceable duties on any state, local or tribal
government or the private sector. In fact, the proposed amendments
would have the effect of reducing paperwork burden on sources wishing
to locate or expand in the Indian country portion of the Uinta Basin as
the amendments provide an alternative to source-specific permitting for
such sources.
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\36\ Since the Federal Indian Country Minor NSR rule was
promulgated, the Information Collection Request has been renewed and
approved by OMB twice. The most recent approval extended the ICR
until October 31, 2020. The ICR covers the activities of the
National O&NG FIP. For more information, go to: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201702-2060-005.
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D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this
[[Page 20785]]
determination, the impact of concern is any significant adverse
economic impact on small entities. An agency may certify that a rule
will not have a significant economic impact on a substantial number of
small entities if the rule relieves regulatory burden, has no net
burden or otherwise has a positive economic effect on the small
entities subject to the rule. The EPA analyzed the impact on small
entities of streamlined permitting under the Federal Indian Country
Minor NSR rule \37\ and determined that it would not have a significant
economic impact on a substantial number of small entities. (By allowing
sources to avoid having to obtain source-specific permits, this
proposed action also would relieve regulatory burden.) This action
merely implements a particular aspect of the Federal Indian Country
Minor NSR rule. We have, therefore, concluded that this action will
have no net regulatory burden for all directly regulated small
entities.
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\37\ ``Review of New Sources and Modifications in Indian
Country,'' U.S. Environmental Protection Agency, 76 FR 38748, July
1, 2011, https://www.federalregister.gov/articles/2011/07/01/2011-14981/review-of-new-sources-and-modifications-in-indian-country.
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E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandates, as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal government or the private sector. It simply modifies
one option for sources to comply with the Federal Indian Country Minor
NSR rule. The Federal Indian Country Minor NSR rule itself, not this
proposed action, imposes the obligation that true minor sources in
areas covered by the Federal Indian Country Minor NSR rule obtain a
minor source NSR permit prior to commencing construction. This proposed
action merely applies the National O&NG FIP to the U&O Reservation as
part of the Uinta Basin Nonattainment Area, which includes a
streamlined mechanism for authorizing construction for meeting the
obligation of the Federal Indian Country minor NSR rule.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It would not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. Consistent with the EPA
Policy on Consultation and Coordination with Indian Tribes (May 4,
2011),\38\ the EPA offered consultation on the concerns addressed in
this proposed action, which include the lack of a streamlined
permitting for the U&O Reservation should the area be designated
nonattainment. The EPA conducted outreach on the issues addressed by
the previous rule via ongoing monthly meetings with tribal
environmental professionals in the development of the past proposed
action,\39\ and further as follows via: (1) Tribal consultation with
the Ute Indian Tribe Business Committee on July 22, 2015; December 17,
2016; November 13, 2017; and March 22, 2018, regarding options that the
EPA considered in addressing the Uinta Basin air quality concerns; (2)
stakeholder meetings where the Tribe was included and participated in
emissions contributions discussions specific to the EPA's strategy for
addressing the Uinta Basin air quality concerns; (3) ongoing
stakeholder working group meetings; and (4) tribally-convened
stakeholder meetings on March 22, 2017, and June 1-2, 2017.
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\38\ For more information, go to: https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes.
\39\ These monthly meetings are general in nature, dealing with
many air-related topics, and are not specific to this proposed
action.
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This action reflects tribal concerns about, and priorities for,
developing a streamlined approach for permitting true minor sources in
the oil and natural gas sector in areas covered by the Federal Indian
Country Minor NSR rule in the intended Uinta Basin Ozone Nonattainment
Area. As these amendments, if finalized, are implemented, we will
continue to provide regular outreach to tribes to ensure we address
issues concerning the FIP if and when they arise. The EPA is available
for consultation with any interested tribe.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
As discussed in Section II.B, we believe that this action is
reasonable in light of our intended, separate rulemaking to establish a
reservation-specific FIP and the expected short period of time before
these requirements would apply. Therefore, the EPA believes the
amendments in this action will not have potential disproportionately
high and adverse human health or environmental effects on minority,
low-income or indigenous populations. Through these amendments, we
seek: (1) To extend geographically the National O&NG FIP and its
mechanism for authorizing construction that effectively provides a
streamlined method for implementing a pre-construction permitting
program for true minor sources in the oil and natural gas sector in
areas covered by the Federal Indian Country Minor NSR rule, and (2) to
pursue an approach that enables a streamlined process, which helps
promote economic development by minimizing delays in new construction.
List of Subjects in 40 CFR Part 49
Environmental protection, Administrative practices and procedures,
Air pollution control, Indians, Indians--law, Indians--tribal
government, Intergovernmental relations, Reporting and recordkeeping
requirements.
Dated: April 30, 2018.
E. Scott Pruitt,
Administrator.
For the reasons set forth in the preamble, 40 CFR part 49 is
proposed to be amended as follows:
[[Page 20786]]
PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
0
1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--General Federal Implementation Plan Provisions
0
2. In Sec. 49.101:
0
a. Revise paragraph (c).
0
b. Add paragraph (e).
The revision and addition read as follows:
Sec. 49.101 Introduction.
* * * * *
(c) When must I comply with Sec. Sec. 49.101 through 49.105? You
must comply with Sec. Sec. 49.101 through 49.105 on or after October
3, 2016.
* * * * *
(e) Notwithstanding paragraph (b)(1)(v), oil and natural gas
sources located in the Indian country portion of the Uinta Basin Ozone
Nonattainment Area are subject to Sec. Sec. 49.101 through 49.105
(except for paragraph (b)(1)(v)), provided subparagraphs (b)(1)(i)-(iv)
are also satisfied.
0
3. In Sec. 49.102, add the definition ``Uinta Basin ozone
nonattainment area'' in alphabetical order to read as follows:
Sec. 49.102 Definitions.
* * * * *
Uinta Basin ozone nonattainment area means the nonattainment area
for the Uinta Basin, or such parts or areas of the Uinta Basin, as it
is or may hereafter be defined at 40 CFR part 81, Designations of Areas
for Air Quality Purposes.
[FR Doc. 2018-09652 Filed 5-7-18; 8:45 am]
BILLING CODE 6560-50-P