Federal Implementation Plan To Establish a Bank for Ozone Precursor Emission Reduction Credits From Existing Sources on Indian Country Lands Within the Uinta Basin Ozone Nonattainment Area, 24064-24069 [2019-10798]
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ENVIRONMENTAL PROTECTION
AGENCY
Tom
Sinks, Office of the Science Advisor,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington DC
20460–0001; telephone number: (202)
564–0221; email address: staff_osa@
epa.gov.
40 CFR Part 49
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. What action is EPA taking?
Section 25(a)(2)(B) of FIFRA requires
the EPA Administrator to provide the
Secretary of USDA with a copy of any
draft final rule at least 30 days before
signing it in final form for publication
in the Federal Register. The draft final
rule is not available to the public until
after it has been signed by EPA. If the
Secretary of USDA comments in writing
regarding the draft final rule within 15
days after receiving it, the EPA
Administrator shall include the
comments of the Secretary of USDA, if
requested by the Secretary of USDA,
and the EPA Administrator’s response
to those comments with the final rule
that publishes in the Federal Register.
If the Secretary of USDA does not
comment in writing within 15 days after
receiving the draft final rule, the EPA
Administrator may sign the final rule for
publication in the Federal Register any
time after the 15-day period.
II. Do any Statutory and Executive
Order reviews apply to this
notification?
No. This document is merely a
notification of submission to the
Secretary of USDA. As such, none of the
regulatory assessment requirements
apply to this document.
List of Subjects in Part 26
Environmental protection,
Administrative practice and procedures,
Human research, Pesticides and pests.
Dated: May 10, 2019.
Richard Keigwin,
Director, Office of Pesticide Programs.
[FR Doc. 2019–10265 Filed 5–23–19; 8:45 am]
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[EPA–R08–OAR–2019–0002; 9991–98Region 8]
Federal Implementation Plan To
Establish a Bank for Ozone Precursor
Emission Reduction Credits From
Existing Sources on Indian Country
Lands Within the Uinta Basin Ozone
Nonattainment Area
Environmental Protection
Agency (EPA).
ACTION: Advance notice of proposed
rulemaking.
AGENCY:
The purpose of this Advance
Notice of Proposed Rulemaking
(ANPRM) is to solicit broad feedback on
different approaches to establishing a
voluntary emission reduction credit
(ERC) bank for ozone precursors,
specifically volatile organic compounds
(VOCs) and nitrogen oxides (NOX), as
part of a Clean Air Act (CAA) Federal
Implementation Plan (FIP) applicable to
stationary sources on Indian country
lands within the Uintah and Ouray
Indian Reservation (U&O Reservation)
that are part of the Uinta Basin Ozone
Nonattainment Area. The EPA
designated portions of the ‘‘Uinta
Basin’’ region nonattainment for the
2015 Ozone NAAQS, effective August 3,
2018. The ERCs described in this
ANPRM could be generated and used
for several air quality planning
purposes: assisting in achievement of
the ozone National Ambient Air Quality
Standard (NAAQS), general conformity
demonstrations, and nonattainment new
source review (NNSR) permitting
related to development of new VOC and
NOX emissions sources in Indian
country portions of the Uinta Basin
Ozone Nonattainment Area in Utah. We
are also inviting comment on the
potential for the bank to interact with
sources that are outside the
nonattainment area or the U&O
Reservation.
SUMMARY:
Comments must be received on
or before July 8, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2019–0002, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.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
DATES:
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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://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Chris Dresser, U.S. EPA, Region 8, Air
Program, Mail Code 8P–AR, 1595
Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6385,
dresser.chris@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘reviewing
authority,’’ ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer
to the EPA.
ANPRM: Advance Notice of Proposed
Rulemaking.
APA: The Administrative Procedure Act.
Act or CAA: Clean Air Act, unless the
context indicates otherwise.
CBI: Confidential Business Information.
EIP: Economic Incentive Programs.
EPA: The United States Environmental
Protection Agency.
ERC: Emission Reduction Credit.
FIP: Federal Implementation Plan.
NAAQS: National Ambient Air Quality
Standards.
NAICS: North American Industry
Classification System.
NESHAP: National Emission Standards for
Hazardous Air Pollutants.
NOX: Nitrogen oxides.
NPRM: Notice of Proposed Rulemaking.
NNSR: Nonattainment New Source Review.
NSR: New Source Review.
NTTAA: National Technology Transfer and
Advancement Act.
OMB: Office of Management and Budget.
RACT: Reasonably Available Control
Technology.
RFA: Regulatory Flexibility Act.
RFP: Reasonable Further Progress.
SIP: State Implementation Plan.
TAR: Tribal Authority Rule.
TAS: Treatment in the same manner as a
state.
TIP: Tribal Implementation Plan.
TPY: Tons Per Year.
UDEQ: Utah Department of Environmental
Quality’s Division of Air Quality.
U&O Reservation or the Reservation: Uintah
& Ouray Indian Reservation.
VOC: Volatile organic compound(s).
This preamble is organized as follows:
I. General Information
A. Would this potential action apply to
me?
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B. What should I consider as I prepare my
comments to the EPA?
C. Where can I get a copy of this document
and other related information?
II. Purpose of This Advance Notice of
Proposed Rulemaking
III. What is an emission reduction credit
bank?
IV. Background on the U&O Reservation
V. Areas Where the EPA Is Requesting
Comment
A. Conceptual Support for an EPA-run
U&O ERC Bank
B. Participation in the U&O ERC Bank
C. ERC Bank Format
D. Creditable Emission Reductions
E. Trading of ERCs
F. Use of ERCs
G. Withdrawal of ERCs From the Bank
H. Emissions Reductions Achieved Prior to
the Effective Date of Final U&O ERC
Banking Rule
I. Geographic Considerations and
Interaction With Utah State Land CAA
Planning Requirements
J. General Comments
VI. Statutory and Executive Order Reviews
I. General Information
A. Would this potential action apply to
me?
Entities potentially affected by this
upcoming proposed FIP consist of
existing sources of emissions of ozone
precursors (VOC and NOX) on Indian
country lands that are both (1) within
the U&O Reservation 1 and (2) part of
the Uinta Basin Ozone Nonattainment
Area. All the Indian country lands
within the Uinta Basin Ozone
Nonattainment Area of which the EPA
is aware are within the U&O
Reservation. Further, all of the Ute
Indian Tribe Indian country lands of
which the EPA is aware are located
within the Reservation.2 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 would not be
covered by this FIP unless the EPA or
the Tribe demonstrates that the Tribe
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has jurisdiction over the area. In
addition, there are parts of the Uinta
Basin Ozone Nonattainment Area that
are not within Indian country. Any
proposed FIP will not apply to any
sources on non-Indian-country lands,
including any non-Indian-country lands
within the exterior boundaries of the
Reservation. The EPA expects that
entities with operations in the oil and
natural gas production and natural gas
processing segments of the oil and
natural gas sector would be the primary
depositors of ERCs in a U&O ERC bank,
while new or modified major sources of
VOC or NOX emissions in various
source categories would be the primary
purchasers of banked ERCs to support
Nonattainment New Source Review
(NNSR) permitting. However, other
source categories may choose to
participate in either depositing ERCs or
purchasing banked ERCs to support
NNSR permitting of new or modified
major or minor sources of VOC or NOX
emissions.
TABLE 1—SOURCE CATEGORIES AFFECTED BY THIS ANTICIPATED ACTION
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Industry
category
NAICS code
Oil and Gas Production/Operations.
21111
Crude Petroleum and
Natural Gas Extraction.
Natural Gas Liquid
Extraction.
Drilling Oil and Gas
Wells.
Support Activities for
Oil and Gas Operations.
211111
Engines (Spark Ignition and Compression Ignition) for
Electric Power
Generation.
Fossil Fuel Electric
Power Generation.
2211
211112
213111
213112
221112
Examples of regulated entities/description of industry category
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 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 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 gas field gases; and sulfur recovery from natural gas.
Drilling oil and gas wells for others on a contract or fee basis, including spudding in, drilling in, redrilling,
and directional drilling.
Performing support activities on a contract or fee basis for oil and 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.
Operating fossil fuel powered electric power generation facilities using fossil fuels, such as coal, oil, or
gas, in internal combustion or combustion turbine conventional steam process to produce electric energy. Electric energy production is provided to electric power transmission systems or to electric power
distribution systems.
1 See discussion at section IV below, for more
information on the establishment of the
Reservation.
2 Under the 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 63 FR 7254, 7258 (Feb. 12, 1998)
(‘‘Tribal Authority Rule’’); Arizona Pub. Serv. Co. v.
EPA, 211 F.3d 1280, 1285–86 (D.C. Cir. 2000).
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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 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 EPA’s
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authority to promulgate a FIP to directly administer
CAA programs on Indian reservations but
invalidated the FIP at issue as applied to nonreservation 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 areas, the
Oklahoma court decision is not implicated.
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TABLE 1—SOURCE CATEGORIES AFFECTED BY THIS ANTICIPATED ACTION—Continued
Industry
category
NAICS code
Petroleum Bulk Stations and Terminals.
424710
Examples of regulated entities/description of industry category
Bulk liquid storage facilities primarily engaged in the merchant wholesale distribution of crude petroleum
and petroleum products, including liquefied petroleum gas.
This list is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities potentially
affected by this anticipated action. If
you have any questions regarding the
applicability of this potential action to
a particular entity, contact the
appropriate person listed in the FOR
FURTHER INFORMATION CONTACT section.
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II. Purpose of This Advance Notice of
Proposed Rulemaking
The EPA is issuing this ANPRM to
solicit comment on how to best design
and implement an ERC banking and
trading program for stationary sources
located on the Indian country portion of
the Uinta Basin Ozone Nonattainment
Area.3 (As discussed previously, the
Indian country lands within the Uinta
Basin Ozone Nonattainment Area to
which a U&O ERC bank would apply are
on the U&O Reservation. There are, in
addition, portions of the nonattainment
area that are outside of Indian country;
sources in those areas are subject to
state law.4) Allowing sources to use an
EPA-run bank to credit eligible
emissions reductions would serve three
purposes:
1. The requirement to obtain offsets
(as ERCs) for permitting new or
modified major sources would likely
incentivize industry to voluntarily
implement controls on existing
operations, which would lead to
emissions reductions sooner than would
otherwise occur. We expect, based on
the existing emissions inventory, that
the primary generators of ERCs will be
minor oil and natural gas production
sources, while the primary users of
ERCs as compensating emissions
reductions will be new or modified
major sources.
2. The ability to bank emissions
credits would facilitate continued
3 Effective August 3, 2018, certain parts of the
Uinta Basin were classified as a Marginal
nonattainment area for the 2015 ozone NAAQS. 83
FR 25776, 25837 (June 4, 2018); see also
information and links posted at https://
www.epa.gov/ozone-designations/additionaldesignations-2015-ozone-standards.
4 As noted previously, our expectation is that the
bank will apply only to stationary sources on Indian
country lands within the U&O Reservation that are
part of the Uinta Basin Ozone Nonattainment Area,
but we are taking comment on the potential for the
bank to interact with sources that are outside the
nonattainment area or the U&O Reservation.
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economic development by providing a
market for compensating emissions
reductions and offsets, such as those
required to construct new and modified
major sources in the nonattainment
area. The Uinta Basin Ozone
Nonattainment Area is classified as a
Marginal nonattainment area for the
2015 ozone NAAQS. At the Marginal
level of nonattainment, offsets for
permitting new or modified major
sources could be purchased and used at
a ratio of 1.1 ton of emissions reductions
of an ozone precursor to every 1 ton of
new emissions added to the Basin.5 This
requirement for major source offsets
ensures a declining emissions trend,
while still allowing new major source
development.6 As discussed below,
other options exist to increase the
effectiveness of this program as a means
of reducing emissions and improving air
quality.
3. The ability to bank emissions
credits for later use to satisfy CAA
general conformity requirements
applicable to federal actions would
minimize delays in such actions.
To ensure the integrity of the program
and its consistency with the CAA, to
qualify as ERCs, emissions reductions
are required to be quantifiable,
enforceable, permanent, and surplus of
CAA requirements.7
The CAA allows the establishment of
emissions banking and trading systems
to meet applicable requirements, and
allows for flexibility and tailoring of the
program to specific geographic areas.8
As discussed in detail in Section V of
this ANPRM, the EPA is requesting
comments on a range of elements
concerning whether and how an ERC
banking rule should be designed and
implemented for the Indian country
portion of the Uinta Basin Ozone
Nonattainment Area. We will take this
feedback into consideration in
developing a notice of proposed
rulemaking (NPRM) for a FIP for
crediting ozone precursor emissions
reductions from existing Indian country
sources within the Uinta Basin Ozone
Nonattainment Area.
5 CAA section 182(a)(4), 42 U.S.C. 7511a(a)(4)
(setting general offset requirement for Marginal
Areas).
6 Although minor sources are not subject to this
major source individual offset requirement, the EPA
believes that 1:1 compensating emissions
reductions could be the simplest way to show that
a new minor source does not ‘‘cause or contribute’’
to a NAAQS violation. The EPA is open to ideas
about other ways to make this demonstration.
7 For detailed discussion of the meaning of these
terms (quantifiable, enforceable, permanent, and
surplus) in this context, see Improving Air Quality
with Economic Incentive Programs, EPA–452/R–01–
001 (EPA Office of Air and Radiation, 2001) (‘‘EIP
Guidance,’’ available at https://www.epa.gov/sites/
production/files/2015-07/documents/eipfin.pdf),
chapter 4 (describing these ‘‘fundamental
principles’’ of all banking and trading programs).
For additional authorities establishing that CAA
emission reduction credits must be quantifiable,
enforceable, permanent, and surplus, see CAA
section 173(c), 42 U.S.C. 7503(c) (requiring that
emissions offsets in nonattainment permitting be
‘‘not otherwise required,’’ ‘‘in effect’’ by the time a
source commences operation, and ‘‘enforceable’’);
40 CFR 51.165(a)(3)(ii)(C)(1)(i) (requiring that SIPs
and TIPs provide that emission reduction credits
from shutdowns or operational curtailments must
be surplus, quantifiable, enforceable, and
permanent); 40 CFR part 51, subpart U (rules for
‘‘mandatory’’ economic incentive programs
submitted as part of satisfying SIP requirements
under CAA sections 182 and 187) (stating that
programs must be ‘‘state and federally enforceable,’’
and that ‘‘[p]rograms in nonattainment areas for
which credit is taken in attainment and RFP
demonstrations shall be designed to ensure that the
effects of the program are quantifiable and
permanent over the entire duration of the program,
and that the credit taken is limited to that which
is surplus.’’); Emissions Trading Policy Statement,
51 FR 43814, 43831 (Dec. 4, 1986) (‘‘To assure that
emissions trades do not contravene relevant
requirements of the Clean Air Act, only reductions
which are surplus, enforceable, permanent, and
quantifiable can qualify as ERCs and be banked or
used in an emissions trade.’’); Emissions Offset
Interpretive Ruling, 44 FR 3274, 3274–76 (Jan. 16,
1979) (‘‘Emissions reductions achieved by shutting
down an existing source or curtailing production or
operating hours may be generally credited for
offsets if they . . . are surplus, permanent,
quantifiable, and federally enforceable. . .’’).
8 See, e.g., CAA sections 110(a)(2)(A), 42 U.S.C
7410(a)(2)(A), and 172(c)(6) (state implementation
plans must have ‘‘control measures, means, or
techniques (including economic incentives such as
fees, marketable permits, and auctions of emissions
rights)’’; see also EIP Guidance.
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III. What is an emission reduction
credit bank?
The following information is meant to
give the reader a general overview of
ERC banks. Specifics may vary
depending on the design of the actual
regulatory program.
Generally speaking, source owners or
operators can generate emissions
reductions using a number of
approaches, including curtailing
emissions or shutting down emissions
units. These emissions reductions can
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then be certified as ERCs and deposited
in a bank provided they meet relevant
requirements. ERCs can thus be viewed
as financial incentives that can be saved
for later use as emissions offsets by the
depositor or sold or traded at the market
price to other sources needing emissions
offsets.
ERCs are generated when owners or
operators of a facility or source reduce
emissions of criteria pollutants 9 or their
precursors below any applicable
regulatory requirements, while
complying with all other applicable
requirements of the CAA.10 ERCs can be
generated from permanent shutdown
and removal of equipment; upgrade or
retrofit to more stringent emissions
controls; or change of process, methods,
or operating guidelines that would affect
emissions. These control methods and
technologies must result in real,
quantifiable, enforceable, and
permanent reductions in emissions, and
the reductions must be surplus of CAA
requirements.11
The overall purpose of an ERC bank
is to apply market-based strategies to
encourage reductions in emissions for
an area, which may help meet shared air
quality goals. An ERC bank promotes
flexibility and innovation in complying
with state and federal air emissions
requirements established in a SIP/FIP/
TIP and SIP/FIP/TIP-approved air
permitting programs. This flexibility
should allow for the achievement of air
quality goals (e.g., SIP/FIP/TIP
requirements) more quickly and at a
lower cost while still complying with all
applicable requirements of the CAA.
As mentioned in Section I, we expect
that a principal use of emission
reduction credits will be to offset new
and modified major source emissions as
part of NNSR permitting. Sections
172(c)(5) and 173 of Part D of title I of
the CAA and EPA’s implementing
regulations at 40 CFR 51.165 contain the
NSR requirements for areas designated
nonattainment for a NAAQS. NNSR
only applies to pollutants or their
precursors for which the area is
designated as nonattainment for a
NAAQS under the CAA. The NNSR
program has specific emissions
thresholds for determining which new
sources or modifications of existing
sources are ‘‘major’’ based on the
9 While lead is a criteria pollutant, ERC banks
should not address lead emissions. See EIP
Guidance.
10 An ERC must not conflict with or override
other CAA requirements that may apply to an area
or source(s) (e.g., part D nonattainment NSR offset
requirements or part C PSD requirements)
regardless of the attainment classification of an
area. See EIP Guidance at 15.
11 See n. 7, above.
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nonattainment classification of the
specific pollutant.12 Once a stationary
source is subject to the major NNSR
program, the source must meet several
criteria to receive a preconstruction
permit. The most significant of these
requirements are the application of the
Lowest Achievable Emissions Rate
(LAER) to the stationary source or
project and the requirement to offset
potential emissions increases from the
project with decreases in actual
emissions from the same or other
stationary sources located in the same
nonattainment area or a nonattainment
area of equal or higher classification.
Under existing EPA regulations,
source owners seeking permits for
construction of new or modified minor
sources in a nonattainment area of
Indian country must demonstrate that
the source will not cause or contribute
to a NAAQS violation. 40 CFR
49.155(a)(7)(ii). The EPA’s Indian
Country Oil and Natural Gas True Minor
Source FIP allowed streamlined
permitting of new and modified minor
oil and natural gas sources on Indian
country lands within the U&O
Reservation before the designation of
the Uinta Basin Ozone Nonattainment
Area, but that FIP does not currently
provide for streamlined permitting of
sources in the nonattainment area.13
Instead, those sources must obtain
source-specific permits before beginning
construction, under the rules at 40 CFR
49.151 through 49.165.14
IV. Background on the U&O
Reservation
The Ute Indian Tribe is a federally
recognized Indian tribe organized under
the Indian Reorganization Act of 1934,15
with its Constitution and By-Laws
adopted by the Tribe on December 19,
1936, and approved by the Secretary of
the Interior on January 19, 1937.16 The
Uintah and Ouray Indian Reservation
12 The ‘‘major stationary source’’ threshold for a
marginal and moderate nonattainment areas is 100
tpy for a pollutant or precursor. NNSR also applies
to existing major stationary sources that undertake
a ‘‘major modification,’’ which occurs when the
change ultimately results in a ‘‘significant net’’
emissions increase of the nonattainment pollutant
(significance rates are defined in 40 CFR
51.165(a)(1)(v)). The significance threshold is lower
in certain nonattainment areas with higher degrees
of nonattainment, with the specific level based on
the area’s nonattainment classification.
13 See 40 CFR 49.101(b)(1)(v).
14 On May 8, 2018, EPA proposed to amend the
Indian Country Oil and Natural Gas True Minor
Source FIP to allow the FIP to apply in the Uintah
Basin Ozone Nonattainment Area. See 83 FR 20775.
15 See 83 FR 34863, 34866 (July 23, 2018) (list of
federally recognized tribes); 48 Stat. 984, 25 U.S.C.
5123 (Indian Reorganization Act).
16 Constitution and By-Laws of the Ute Indian
Tribe, available at https://www.loc.gov/law/help/
american-indian-consts/PDF/37026342.pdf.
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was formerly the Uintah Valley and
Uncompahgre Reservations, which were
established in 1861 and 1882,
respectively.17 The Tribe’s Constitution
and By-Laws reorganized three Ute
Tribes into one, and clarified that tribal
jurisdiction within the U&O Reservation
extends to the territory within the
original Uintah and Uncompahgre
Reservations, which was later enlarged
through the Hill Creek Extension Act of
1948.18 The U&O Reservation currently
includes all Indian country lands within
its exterior boundaries, as defined by
the 1861 and 1882 Executive Orders, the
Act of May 5, 1864, the Hill Creek
Extension Act of 1948, and subsequent
court decisions.19
Pursuant to CAA section 301(d),20 the
EPA is authorized to treat eligible
Indian tribes in the same manner as
states (‘‘treatment as state’’ or TAS) for
purposes of implementing CAA
provisions over their entire reservations
and over any other areas within their
jurisdiction.21 The Ute Indian Tribe has
not applied for TAS for the purpose of
administering a TIP under the CAA.
Thus, there is currently no EPAapproved plan implementing the
functions and provisions of the CAA on
Indian country lands within the U&O
Reservation. We anticipate that the U&O
ERC banking rule for which the EPA is
providing this advance notice of
proposed rulemaking and soliciting
comment would apply to the Indian
country lands within the exterior
boundaries of the U&O Reservation that
are part of the Uinta Basin Ozone
Nonattainment Area.
17 The U&O Reservation was established for the
Ute Indian Tribe under Executive Order in 1861, 1
Kapp. 900, as confirmed by the Act of May 5, 1864,
13 Stat. 63, and under Executive Order of January
5, 1882, then enlarged through the Hill Creek
Extension Act of 1948, 62 Stat. 72. The Reservation
has been addressed in multiple federal court
decisions, including Ute Indian Tribe v. Utah, 521
F. Supp. 1072, 1155 (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 (U.S. Mar. 21, 2016); and Ute Indian
Tribe v. Myton, 835 F.3d 1255 (10th Cir. 2016), cert.
dismissed, 137 S.Ct. 2328 (2017). As a result of this
line of cases, there are some non-Indian-country
lands within the exterior boundaries of the Uintah
and Ouray Indian Reservation.
18 62 Stat. 72.
19 See n. 16, above.
20 See 42 U.S.C. 7601(d).
21 See 63 FR 7254–57 (Feb. 12, 1998) (explaining
that CAA section 301(d) includes a delegation of
authority from Congress to eligible Indian tribes to
implement CAA programs over all air resources
within the exterior boundaries of their
reservations).
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V. Areas Where the EPA Is Requesting
Comment
For purposes of formulating a
Reservation-specific ERC banking rule,
the EPA is seeking comment on the
following issues:
A. Conceptual support for an EPA-run
U&O ERC bank: Should the EPA
proceed with plans to propose a rule
establishing such a voluntary ERC bank?
The EPA seeks comment on whether
industry (and potentially others) would
use an ERC bank for the Indian country
lands within the U&O Reservation that
are part of the Uinta Basin Ozone
Nonattainment Area. Are there any
reasons not to create a U&O ERC bank,
or are there suggestions to handle
surplus emission reduction crediting
through another approach? Finally, are
there existing state-run ERC banking
systems that may serve as a good
example for developing a U&O ERC
bank?
B. Participation in the U&O ERC
bank: The EPA expects that the
principal clients of a U&O ERC bank
would be industrial sources within the
Indian country portions of the Uinta
Basin Ozone Nonattainment Area
depositing emission reduction credits
for sale or for later use to support future
development, as well as new and
modified industrial sources needing
offsets necessary to obtain a major
NNSR permit. We seek comment on
what other entities (besides companies
implementing voluntary emissions
controls and/or companies needing
offsets to support new development)
should be permitted to participate in a
U&O ERC bank. Such entities might
include non-governmental
organizations, federal government
agencies, local government, the Ute
Indian Tribe and others. Are there any
reasons to preclude any entities from
purchasing ERC credits from such a
bank?
C. ERC bank format: The EPA seeks
comment on the format and features of
a U&O ERC bank. It is expected that (as
with most ERC banks) a database would
be created to track and manage ERCs,
through their deposit, trading and use,
that will be publicly available online.
The EPA solicits comment on this
expectation. Additionally, should the
owner of an ERC be required to deposit
the ERC into the bank before using it as
an offset, in order to centralize tracking?
Or, if an emissions reduction is created
for a specific project, can it be evaluated
as part of the project and avoid the U&O
ERC bank? The EPA seeks comments on
what information should be maintained
in the database for each banking action.
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D. Creditable emissions reductions:
The EPA intends to propose a rule that
specifically outlines what emissions
reductions qualify as creditable for
deposit in a U&O ERC bank. Generally,
qualifying ERCs are limited to emissions
reductions that are real, quantifiable,
enforceable, permanent, and surplus of
CAA requirements. Such ERCs are
typically generated by permanently
shutting down equipment, modifying a
process (i.e., using a lower VOC/sulfur
containing material), or by adding
emissions controls beyond those
required by any applicable regulation.
Some state-run ERC banks require that
a certain percentage of reductions be
removed and made ineligible for future
use to ensure an environmental benefit
to the banking system. For instance, if
an operator achieves a 10 tpy reduction
by implementing an emissions control
on a given source, some percentage
(such as 10%) may be retired for
environmental benefit, and only 9 tpy
would be deposited in the ERC bank for
future offsets or compensating
emissions reductions. This ensures that
more accelerated progress is made
towards attainment. The EPA seeks
comment on whether this practice
should be implemented for a U&O ERC
bank, and if so, at what percentage?
Given the seasonal nature of ozone
generation in the Uinta Basin, are there
legally and technically supported
approaches to allowing seasonal
emissions reductions to be credited?
Should seasonal limitations be placed
on the program? For instance, should
the rule prevent summertime reductions
from being used to support the addition
of wintertime emissions?
How should the ERC banking rule
treat emissions reductions that occur
from emissions unit shutdowns? What
requirements should apply to shutdown equipment to ensure it meets the
requirement to be a permanent
reduction? There are restrictions on the
use of reductions occurring from
equipment shutdowns in 40 CFR
51.165(a)(3)(ii)(C)(1), such as only being
eligible for use if the shutdown occurred
after the last day of the baseline year for
the plan. Additionally, use of reductions
from equipment shutdowns must be
restricted to prohibit operation of that
unit elsewhere in the nonattainment
area. Should the use of reductions from
shut-down equipment be restricted
further, such as disallowing operation in
a broader area outside of the
nonattainment area, or requiring
destruction of the unit?
E. Trading of ERCs: A principal use of
an ERC bank would be to allow
companies in need of emissions offsets
to construct new and modified sources
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Fmt 4702
Sfmt 4702
to purchase those credits from
companies that have permanently
reduced emissions and deposited those
ERCs in the bank. The EPA expects that
a U&O ERC bank would allow the
purchase and exchange of ERCs, and
such exchanges would be publicly
documented. The EPA further
anticipates that the price of ERCs would
be determined by the open market based
on the demand for such ERCs. The EPA
intends to propose to require
documentation from both the company
selling a credit and the company
acquiring the credit in order to process
that transaction and would make
publicly available such information—
including the number of ERCs
purchased, the method of emissions
reduction, and the purchase price. The
EPA seeks comment on this expectation
and any input on what additional
information should be provided to
document transactions within the
anticipated U&O ERC bank database.
F. Use of ERCs: In addition to using
banked ERCs as offsets for new and
modified major sources, these emissions
reductions may also be used to show
that a new or modified minor source
does not cause or contribute to an ozone
NAAQS violation, or to satisfy general
conformity requirements. If such
reductions are not available within the
existing inventory of a company’s
emissions sources or are needed by a
federal agency to demonstrate general
conformity for a specific action, the
U&O ERC bank could be used to
facilitate the purchase of available ERCs.
In such a case, the necessary amount of
ERCs would be purchased from one (or
more) entities in possession of ERCs.
Documentation of the transaction would
be provided to the EPA, and those
credits would be withdrawn from the
bank when used to support a permit
action. The EPA intends to propose a
U&O ERC banking rule that describes
the specifics of this process, consistent
with the principles and requirements
described in the EIP Guidance.22
However, the EPA solicits comments on
any additional considerations and
flexibilities that should be made to
allow this process to function efficiently
for participants within the U&O
Reservation. A primary goal of the
program is to allow eligible ERCs to be
certified for eventual use as offsets in
accordance with major NNSR and
general conformity requirements. Are
there any other uses of an ERC that EPA
22 All offsets used for the purpose of satisfying
general conformity requirements must meet the
regulatory requirements relating to offsets in 40 CFR
93.158(a)(5)(iii).
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should be evaluating, such as for
discretionary use in minor NNSR?
G. Withdrawal of ERCs from the bank:
The EPA intends to evaluate banked
credits for compliance with the ‘‘surplus
of Clean Air Act’’ requirement at the
time of their use as compensating
offsetting emissions (e.g., upon issuance
of a permit). In the event of future
promulgation of emissions controls as
part of a federal or tribal
implementation plan, or to satisfy CAA
requirements such as reasonably
available control technology (RACT) or
RFP, the EPA does not expect sources
that have already provided offsets to
need to pursue additional offsetting
emissions. The EPA seeks comment on
this anticipated expectation and on
whether any other factors should be
considered. We also seek comment as to
whether banked credits should be
discounted or expire after some period
of time, even if they remain surplus of
CAA requirements.
H. Emissions reductions achieved
before the effective date of final U&O
ERC banking rule: The EPA expects that
because the final 2015 Ozone
Implementation Rule 23 defines a
primary base year of 2017, that year will
likely be an appropriate base year for
the Uinta Basin Ozone Nonattainment
Area banking and trading program. To
allow for near-term surplus emissions
reductions that would benefit air
quality, the EPA intends to include as
a component of the proposed rule that
qualifying emissions reductions
achieved before the final rule’s effective
date, but after the nonattainment
baseline year, may be banked;
effectively, any emissions reduction
achieved after January 1, 2018. The EPA
seeks comment on the inclusion of this
flexibility.
I. Geographic considerations and
interaction with Utah-managed CAA
planning requirements: As explained
previously, we anticipate that any
proposed U&O ERC bank would only
apply to sources on Indian country
lands within the U&O Reservation that
are within the Uinta Basin Ozone
Nonattainment Area. There may,
however, be situations where sources on
land managed by Utah have a need for
ERCs and wish to purchase them from
a source in Indian country. Conversely,
sources covered by the EPA-run bank
may wish to purchase ERCs from a
source managed by Utah. From a
scientific standpoint, ozone precursor
emissions are generally uniformly
23 Implementation of the 2015 National Ambient
Air Quality Standards for Ozone: Nonattainment
Area State Implementation Plan Requirements. 83
FR 62998 (Dec. 6, 2018). https://www.govinfo.gov/
content/pkg/FR-2018-12-06/pdf/2018-25424.pdf.
VerDate Sep<11>2014
16:21 May 23, 2019
Jkt 247001
mixed across jurisdictions beneath the
inversion during high-ozone events in
the Uinta Basin Ozone Nonattainment
Area; the original location within the
nonattainment area of emissions (and
emissions reductions) is irrelevant to
the nonattainment area’s overall ozone
design values. However, as a legal
matter, the EPA is limited in the scope
of applying any potential U&O ERC
bank rulemaking to sources in Indian
country. Accordingly, we seek comment
on whether, and under what criteria and
constraints, an EPA-run bank for
sources on the Indian country portion of
the Uinta Basin Ozone Nonattainment
Area should interact with any state-run
bank that may be developed for sources
on land under Utah CAA regulatory
jurisdiction. We also seek comment on
whether the EPA should pursue
collaboration with Utah in allowing for
cross-jurisdictional exchange of ERCs.
Finally, is there any justification to
allow the use, or banking of credits
outside of the Uinta Basin
Nonattainment Area, but within the
general geographic extent of the Uinta
Basin?
J. General comments: The EPA also
invites the public’s comment on any
other questions associated with
developing an emissions banking and
trading program to address the goals
described previously in the ‘‘Purpose’’
section of this ANPRM.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866,
entitled Regulatory Planning and
Review (58 FR 51735, Oct. 4, 1993), the
OMB has determined that this is a not
a ‘‘significant regulatory action.’’
Because this ANPRM does not propose
or impose any requirements, and
instead seeks comments and suggestions
for the Agency to consider in possibly
developing a subsequent proposed rule,
the various statutes and Executive
Orders that normally apply to
rulemaking do not apply in this case.
Should the EPA subsequently determine
to pursue a rulemaking, the EPA will
address the statutes and Executive
Orders as applicable to that rulemaking.
The EPA seeks any comments or
information that would help the Agency
ultimately to assess the potential impact
of a rule on small entities pursuant to
the Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.); to consider
voluntary consensus standards pursuant
to section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA) (15 U.S.C. 272
note); to consider environmental health
or safety effects on children pursuant to
Executive Order 13045, entitled
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Fmt 4702
Sfmt 4702
24069
‘‘Protection of Children from
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, April 23, 1997); or
to consider human health or
environmental effects on minority or
low-income populations pursuant to
Executive Order 12898, entitled
‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, Feb. 16,
1994).
The Agency will consider such
comments during the development of
any subsequent proposed rule.
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: May 18, 2019.
Debra Thomas,
Acting Regional Administrator, EPA Region
8.
[FR Doc. 2019–10798 Filed 5–23–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[EPA–HQ–SFUND–2003–0010; FRL–9993–
17–Region 7]
National Oil and Hazardous
Substances Pollution Contingency
Plan; National Priorities List: Partial
Deletion of the Omaha Lead Superfund
Site
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; notice of intent.
AGENCY:
The Environmental Protection
Agency (EPA) Region 7 is issuing a
Notice of Intent to Delete 500 residential
parcels of the Omaha Lead Superfund
site (Site or OLS) located in Omaha,
Nebraska, from the National Priorities
List (NPL) and requests public
comments on this proposed action. The
NPL, promulgated pursuant to section
105 of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended, is an
appendix of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). The EPA and
the state of Nebraska, through the
Nebraska Department of Environmental
Quality, determined that all appropriate
response actions under CERCLA were
SUMMARY:
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[Federal Register Volume 84, Number 101 (Friday, May 24, 2019)]
[Proposed Rules]
[Pages 24064-24069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10798]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-R08-OAR-2019-0002; 9991-98-Region 8]
Federal Implementation Plan To Establish a Bank for Ozone
Precursor Emission Reduction Credits From Existing Sources on Indian
Country Lands Within the Uinta Basin Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The purpose of this Advance Notice of Proposed Rulemaking
(ANPRM) is to solicit broad feedback on different approaches to
establishing a voluntary emission reduction credit (ERC) bank for ozone
precursors, specifically volatile organic compounds (VOCs) and nitrogen
oxides (NOX), as part of a Clean Air Act (CAA) Federal
Implementation Plan (FIP) applicable to stationary sources on Indian
country lands within the Uintah and Ouray Indian Reservation (U&O
Reservation) that are part of the Uinta Basin Ozone Nonattainment Area.
The EPA designated portions of the ``Uinta Basin'' region nonattainment
for the 2015 Ozone NAAQS, effective August 3, 2018. The ERCs described
in this ANPRM could be generated and used for several air quality
planning purposes: assisting in achievement of the ozone National
Ambient Air Quality Standard (NAAQS), general conformity
demonstrations, and nonattainment new source review (NNSR) permitting
related to development of new VOC and NOX emissions sources
in Indian country portions of the Uinta Basin Ozone Nonattainment Area
in Utah. We are also inviting comment on the potential for the bank to
interact with sources that are outside the nonattainment area or the
U&O Reservation.
DATES: Comments must be received on or before July 8, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0002, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from www.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://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Chris Dresser, U.S. EPA, Region 8, Air
Program, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-
1129, (303) 312-6385, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``reviewing
authority,'' ``we,'' ``us'' and ``our'' refer to the EPA.
ANPRM: Advance Notice of Proposed Rulemaking.
APA: The Administrative Procedure Act.
Act or CAA: Clean Air Act, unless the context indicates otherwise.
CBI: Confidential Business Information.
EIP: Economic Incentive Programs.
EPA: The United States Environmental Protection Agency.
ERC: Emission Reduction Credit.
FIP: Federal Implementation Plan.
NAAQS: National Ambient Air Quality Standards.
NAICS: North American Industry Classification System.
NESHAP: National Emission Standards for Hazardous Air Pollutants.
NOX: Nitrogen oxides.
NPRM: Notice of Proposed Rulemaking.
NNSR: Nonattainment New Source Review.
NSR: New Source Review.
NTTAA: National Technology Transfer and Advancement Act.
OMB: Office of Management and Budget.
RACT: Reasonably Available Control Technology.
RFA: Regulatory Flexibility Act.
RFP: Reasonable Further Progress.
SIP: State Implementation Plan.
TAR: Tribal Authority Rule.
TAS: Treatment in the same manner as a state.
TIP: Tribal Implementation Plan.
TPY: Tons Per Year.
UDEQ: Utah Department of Environmental Quality's Division of Air
Quality.
U&O Reservation or the Reservation: Uintah & Ouray Indian
Reservation.
VOC: Volatile organic compound(s).
This preamble is organized as follows:
I. General Information
A. Would this potential action apply to me?
[[Page 24065]]
B. What should I consider as I prepare my comments to the EPA?
C. Where can I get a copy of this document and other related
information?
II. Purpose of This Advance Notice of Proposed Rulemaking
III. What is an emission reduction credit bank?
IV. Background on the U&O Reservation
V. Areas Where the EPA Is Requesting Comment
A. Conceptual Support for an EPA-run U&O ERC Bank
B. Participation in the U&O ERC Bank
C. ERC Bank Format
D. Creditable Emission Reductions
E. Trading of ERCs
F. Use of ERCs
G. Withdrawal of ERCs From the Bank
H. Emissions Reductions Achieved Prior to the Effective Date of
Final U&O ERC Banking Rule
I. Geographic Considerations and Interaction With Utah State
Land CAA Planning Requirements
J. General Comments
VI. Statutory and Executive Order Reviews
I. General Information
A. Would this potential action apply to me?
Entities potentially affected by this upcoming proposed FIP consist
of existing sources of emissions of ozone precursors (VOC and
NOX) on Indian country lands that are both (1) within the
U&O Reservation \1\ and (2) part of the Uinta Basin Ozone Nonattainment
Area. All the Indian country lands within the Uinta Basin Ozone
Nonattainment Area of which the EPA is aware are within the U&O
Reservation. Further, all of the Ute Indian Tribe Indian country lands
of which the EPA is aware are located within the Reservation.\2\ 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 would not be covered by this FIP unless the EPA or the Tribe
demonstrates that the Tribe has jurisdiction over the area. In
addition, there are parts of the Uinta Basin Ozone Nonattainment Area
that are not within Indian country. Any proposed FIP will not apply to
any sources on non-Indian-country lands, including any non-Indian-
country lands within the exterior boundaries of the Reservation. The
EPA expects that entities with operations in the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector would be the primary depositors of ERCs in a U&O ERC bank,
while new or modified major sources of VOC or NOX emissions
in various source categories would be the primary purchasers of banked
ERCs to support Nonattainment New Source Review (NNSR) permitting.
However, other source categories may choose to participate in either
depositing ERCs or purchasing banked ERCs to support NNSR permitting of
new or modified major or minor sources of VOC or NOX
emissions.
---------------------------------------------------------------------------
\1\ See discussion at section IV below, for more information on
the establishment of the Reservation.
\2\ Under the 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 63 FR 7254, 7258 (Feb. 12, 1998) (``Tribal
Authority Rule''); Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280,
1285-86 (D.C. Cir. 2000). 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 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 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 areas, the Oklahoma court decision is not implicated.
Table 1--Source Categories Affected by This Anticipated Action
------------------------------------------------------------------------
Examples of regulated
Industry category NAICS code entities/description of
industry category
------------------------------------------------------------------------
Oil and 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 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 gas
field gases.
Crude Petroleum and Natural 211111 Exploration, development
Gas Extraction. 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
gas field gases; and
sulfur recovery from
natural gas.
Drilling Oil and Gas Wells.... 213111 Drilling oil and gas wells
for others on a contract
or fee basis, including
spudding in, drilling in,
redrilling, and
directional drilling.
Support Activities for Oil and 213112 Performing support
Gas Operations. activities on a contract
or fee basis for oil and
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 2211 Provision of electric power
Compression Ignition) for to support oil and natural
Electric Power Generation. gas production where
access to the electric
grid is unavailable.
Fossil Fuel Electric Power 221112 Operating fossil fuel
Generation. powered electric power
generation facilities
using fossil fuels, such
as coal, oil, or gas, in
internal combustion or
combustion turbine
conventional steam process
to produce electric
energy. Electric energy
production is provided to
electric power
transmission systems or to
electric power
distribution systems.
[[Page 24066]]
Petroleum Bulk Stations and 424710 Bulk liquid storage
Terminals. facilities primarily
engaged in the merchant
wholesale distribution of
crude petroleum and
petroleum products,
including liquefied
petroleum gas.
------------------------------------------------------------------------
This list is not intended to be exhaustive, but rather provides a
guide for readers regarding entities potentially affected by this
anticipated action. If you have any questions regarding the
applicability of this potential action to a particular entity, contact
the appropriate person listed in the FOR FURTHER INFORMATION CONTACT
section.
II. Purpose of This Advance Notice of Proposed Rulemaking
The EPA is issuing this ANPRM to solicit comment on how to best
design and implement an ERC banking and trading program for stationary
sources located on the Indian country portion of the Uinta Basin Ozone
Nonattainment Area.\3\ (As discussed previously, the Indian country
lands within the Uinta Basin Ozone Nonattainment Area to which a U&O
ERC bank would apply are on the U&O Reservation. There are, in
addition, portions of the nonattainment area that are outside of Indian
country; sources in those areas are subject to state law.\4\) Allowing
sources to use an EPA-run bank to credit eligible emissions reductions
would serve three purposes:
---------------------------------------------------------------------------
\3\ Effective August 3, 2018, certain parts of the Uinta Basin
were classified as a Marginal nonattainment area for the 2015 ozone
NAAQS. 83 FR 25776, 25837 (June 4, 2018); see also information and
links posted at https://www.epa.gov/ozone-designations/additional-designations-2015-ozone-standards.
\4\ As noted previously, our expectation is that the bank will
apply only to stationary sources on Indian country lands within the
U&O Reservation that are part of the Uinta Basin Ozone Nonattainment
Area, but we are taking comment on the potential for the bank to
interact with sources that are outside the nonattainment area or the
U&O Reservation.
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1. The requirement to obtain offsets (as ERCs) for permitting new
or modified major sources would likely incentivize industry to
voluntarily implement controls on existing operations, which would lead
to emissions reductions sooner than would otherwise occur. We expect,
based on the existing emissions inventory, that the primary generators
of ERCs will be minor oil and natural gas production sources, while the
primary users of ERCs as compensating emissions reductions will be new
or modified major sources.
2. The ability to bank emissions credits would facilitate continued
economic development by providing a market for compensating emissions
reductions and offsets, such as those required to construct new and
modified major sources in the nonattainment area. The Uinta Basin Ozone
Nonattainment Area is classified as a Marginal nonattainment area for
the 2015 ozone NAAQS. At the Marginal level of nonattainment, offsets
for permitting new or modified major sources could be purchased and
used at a ratio of 1.1 ton of emissions reductions of an ozone
precursor to every 1 ton of new emissions added to the Basin.\5\ This
requirement for major source offsets ensures a declining emissions
trend, while still allowing new major source development.\6\ As
discussed below, other options exist to increase the effectiveness of
this program as a means of reducing emissions and improving air
quality.
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\5\ CAA section 182(a)(4), 42 U.S.C. 7511a(a)(4) (setting
general offset requirement for Marginal Areas).
\6\ Although minor sources are not subject to this major source
individual offset requirement, the EPA believes that 1:1
compensating emissions reductions could be the simplest way to show
that a new minor source does not ``cause or contribute'' to a NAAQS
violation. The EPA is open to ideas about other ways to make this
demonstration.
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3. The ability to bank emissions credits for later use to satisfy
CAA general conformity requirements applicable to federal actions would
minimize delays in such actions.
To ensure the integrity of the program and its consistency with the
CAA, to qualify as ERCs, emissions reductions are required to be
quantifiable, enforceable, permanent, and surplus of CAA
requirements.\7\
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\7\ For detailed discussion of the meaning of these terms
(quantifiable, enforceable, permanent, and surplus) in this context,
see Improving Air Quality with Economic Incentive Programs, EPA-452/
R-01-001 (EPA Office of Air and Radiation, 2001) (``EIP Guidance,''
available at https://www.epa.gov/sites/production/files/2015-07/documents/eipfin.pdf), chapter 4 (describing these ``fundamental
principles'' of all banking and trading programs). For additional
authorities establishing that CAA emission reduction credits must be
quantifiable, enforceable, permanent, and surplus, see CAA section
173(c), 42 U.S.C. 7503(c) (requiring that emissions offsets in
nonattainment permitting be ``not otherwise required,'' ``in
effect'' by the time a source commences operation, and
``enforceable''); 40 CFR 51.165(a)(3)(ii)(C)(1)(i) (requiring that
SIPs and TIPs provide that emission reduction credits from shutdowns
or operational curtailments must be surplus, quantifiable,
enforceable, and permanent); 40 CFR part 51, subpart U (rules for
``mandatory'' economic incentive programs submitted as part of
satisfying SIP requirements under CAA sections 182 and 187) (stating
that programs must be ``state and federally enforceable,'' and that
``[p]rograms in nonattainment areas for which credit is taken in
attainment and RFP demonstrations shall be designed to ensure that
the effects of the program are quantifiable and permanent over the
entire duration of the program, and that the credit taken is limited
to that which is surplus.''); Emissions Trading Policy Statement, 51
FR 43814, 43831 (Dec. 4, 1986) (``To assure that emissions trades do
not contravene relevant requirements of the Clean Air Act, only
reductions which are surplus, enforceable, permanent, and
quantifiable can qualify as ERCs and be banked or used in an
emissions trade.''); Emissions Offset Interpretive Ruling, 44 FR
3274, 3274-76 (Jan. 16, 1979) (``Emissions reductions achieved by
shutting down an existing source or curtailing production or
operating hours may be generally credited for offsets if they . . .
are surplus, permanent, quantifiable, and federally enforceable. .
.'').
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The CAA allows the establishment of emissions banking and trading
systems to meet applicable requirements, and allows for flexibility and
tailoring of the program to specific geographic areas.\8\ As discussed
in detail in Section V of this ANPRM, the EPA is requesting comments on
a range of elements concerning whether and how an ERC banking rule
should be designed and implemented for the Indian country portion of
the Uinta Basin Ozone Nonattainment Area. We will take this feedback
into consideration in developing a notice of proposed rulemaking (NPRM)
for a FIP for crediting ozone precursor emissions reductions from
existing Indian country sources within the Uinta Basin Ozone
Nonattainment Area.
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\8\ See, e.g., CAA sections 110(a)(2)(A), 42 U.S.C
7410(a)(2)(A), and 172(c)(6) (state implementation plans must have
``control measures, means, or techniques (including economic
incentives such as fees, marketable permits, and auctions of
emissions rights)''; see also EIP Guidance.
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III. What is an emission reduction credit bank?
The following information is meant to give the reader a general
overview of ERC banks. Specifics may vary depending on the design of
the actual regulatory program.
Generally speaking, source owners or operators can generate
emissions reductions using a number of approaches, including curtailing
emissions or shutting down emissions units. These emissions reductions
can
[[Page 24067]]
then be certified as ERCs and deposited in a bank provided they meet
relevant requirements. ERCs can thus be viewed as financial incentives
that can be saved for later use as emissions offsets by the depositor
or sold or traded at the market price to other sources needing
emissions offsets.
ERCs are generated when owners or operators of a facility or source
reduce emissions of criteria pollutants \9\ or their precursors below
any applicable regulatory requirements, while complying with all other
applicable requirements of the CAA.\10\ ERCs can be generated from
permanent shutdown and removal of equipment; upgrade or retrofit to
more stringent emissions controls; or change of process, methods, or
operating guidelines that would affect emissions. These control methods
and technologies must result in real, quantifiable, enforceable, and
permanent reductions in emissions, and the reductions must be surplus
of CAA requirements.\11\
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\9\ While lead is a criteria pollutant, ERC banks should not
address lead emissions. See EIP Guidance.
\10\ An ERC must not conflict with or override other CAA
requirements that may apply to an area or source(s) (e.g., part D
nonattainment NSR offset requirements or part C PSD requirements)
regardless of the attainment classification of an area. See EIP
Guidance at 15.
\11\ See n. 7, above.
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The overall purpose of an ERC bank is to apply market-based
strategies to encourage reductions in emissions for an area, which may
help meet shared air quality goals. An ERC bank promotes flexibility
and innovation in complying with state and federal air emissions
requirements established in a SIP/FIP/TIP and SIP/FIP/TIP-approved air
permitting programs. This flexibility should allow for the achievement
of air quality goals (e.g., SIP/FIP/TIP requirements) more quickly and
at a lower cost while still complying with all applicable requirements
of the CAA.
As mentioned in Section I, we expect that a principal use of
emission reduction credits will be to offset new and modified major
source emissions as part of NNSR permitting. Sections 172(c)(5) and 173
of Part D of title I of the CAA and EPA's implementing regulations at
40 CFR 51.165 contain the NSR requirements for areas designated
nonattainment for a NAAQS. NNSR only applies to pollutants or their
precursors for which the area is designated as nonattainment for a
NAAQS under the CAA. The NNSR program has specific emissions thresholds
for determining which new sources or modifications of existing sources
are ``major'' based on the nonattainment classification of the specific
pollutant.\12\ Once a stationary source is subject to the major NNSR
program, the source must meet several criteria to receive a
preconstruction permit. The most significant of these requirements are
the application of the Lowest Achievable Emissions Rate (LAER) to the
stationary source or project and the requirement to offset potential
emissions increases from the project with decreases in actual emissions
from the same or other stationary sources located in the same
nonattainment area or a nonattainment area of equal or higher
classification.
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\12\ The ``major stationary source'' threshold for a marginal
and moderate nonattainment areas is 100 tpy for a pollutant or
precursor. NNSR also applies to existing major stationary sources
that undertake a ``major modification,'' which occurs when the
change ultimately results in a ``significant net'' emissions
increase of the nonattainment pollutant (significance rates are
defined in 40 CFR 51.165(a)(1)(v)). The significance threshold is
lower in certain nonattainment areas with higher degrees of
nonattainment, with the specific level based on the area's
nonattainment classification.
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Under existing EPA regulations, source owners seeking permits for
construction of new or modified minor sources in a nonattainment area
of Indian country must demonstrate that the source will not cause or
contribute to a NAAQS violation. 40 CFR 49.155(a)(7)(ii). The EPA's
Indian Country Oil and Natural Gas True Minor Source FIP allowed
streamlined permitting of new and modified minor oil and natural gas
sources on Indian country lands within the U&O Reservation before the
designation of the Uinta Basin Ozone Nonattainment Area, but that FIP
does not currently provide for streamlined permitting of sources in the
nonattainment area.\13\ Instead, those sources must obtain source-
specific permits before beginning construction, under the rules at 40
CFR 49.151 through 49.165.\14\
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\13\ See 40 CFR 49.101(b)(1)(v).
\14\ On May 8, 2018, EPA proposed to amend the Indian Country
Oil and Natural Gas True Minor Source FIP to allow the FIP to apply
in the Uintah Basin Ozone Nonattainment Area. See 83 FR 20775.
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IV. Background on the U&O Reservation
The Ute Indian Tribe is a federally recognized Indian tribe
organized under the Indian Reorganization Act of 1934,\15\ with its
Constitution and By-Laws adopted by the Tribe on December 19, 1936, and
approved by the Secretary of the Interior on January 19, 1937.\16\ The
Uintah and Ouray Indian Reservation was formerly the Uintah Valley and
Uncompahgre Reservations, which were established in 1861 and 1882,
respectively.\17\ The Tribe's Constitution and By-Laws reorganized
three Ute Tribes into one, and clarified that tribal jurisdiction
within the U&O Reservation extends to the territory within the original
Uintah and Uncompahgre Reservations, which was later enlarged through
the Hill Creek Extension Act of 1948.\18\ The U&O Reservation currently
includes all Indian country lands within its exterior boundaries, as
defined by the 1861 and 1882 Executive Orders, the Act of May 5, 1864,
the Hill Creek Extension Act of 1948, and subsequent court
decisions.\19\
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\15\ See 83 FR 34863, 34866 (July 23, 2018) (list of federally
recognized tribes); 48 Stat. 984, 25 U.S.C. 5123 (Indian
Reorganization Act).
\16\ Constitution and By-Laws of the Ute Indian Tribe, available
at https://www.loc.gov/law/help/american-indian-consts/PDF/37026342.pdf.
\17\ The U&O Reservation was established for the Ute Indian
Tribe under Executive Order in 1861, 1 Kapp. 900, as confirmed by
the Act of May 5, 1864, 13 Stat. 63, and under Executive Order of
January 5, 1882, then enlarged through the Hill Creek Extension Act
of 1948, 62 Stat. 72. The Reservation has been addressed in multiple
federal court decisions, including Ute Indian Tribe v. Utah, 521 F.
Supp. 1072, 1155 (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
(U.S. Mar. 21, 2016); and Ute Indian Tribe v. Myton, 835 F.3d 1255
(10th Cir. 2016), cert. dismissed, 137 S.Ct. 2328 (2017). As a
result of this line of cases, there are some non-Indian-country
lands within the exterior boundaries of the Uintah and Ouray Indian
Reservation.
\18\ 62 Stat. 72.
\19\ See n. 16, above.
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Pursuant to CAA section 301(d),\20\ the EPA is authorized to treat
eligible Indian tribes in the same manner as states (``treatment as
state'' or TAS) for purposes of implementing CAA provisions over their
entire reservations and over any other areas within their
jurisdiction.\21\ The Ute Indian Tribe has not applied for TAS for the
purpose of administering a TIP under the CAA. Thus, there is currently
no EPA-approved plan implementing the functions and provisions of the
CAA on Indian country lands within the U&O Reservation. We anticipate
that the U&O ERC banking rule for which the EPA is providing this
advance notice of proposed rulemaking and soliciting comment would
apply to the Indian country lands within the exterior boundaries of the
U&O Reservation that are part of the Uinta Basin Ozone Nonattainment
Area.
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\20\ See 42 U.S.C. 7601(d).
\21\ See 63 FR 7254-57 (Feb. 12, 1998) (explaining that CAA
section 301(d) includes a delegation of authority from Congress to
eligible Indian tribes to implement CAA programs over all air
resources within the exterior boundaries of their reservations).
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[[Page 24068]]
V. Areas Where the EPA Is Requesting Comment
For purposes of formulating a Reservation-specific ERC banking
rule, the EPA is seeking comment on the following issues:
A. Conceptual support for an EPA-run U&O ERC bank: Should the EPA
proceed with plans to propose a rule establishing such a voluntary ERC
bank? The EPA seeks comment on whether industry (and potentially
others) would use an ERC bank for the Indian country lands within the
U&O Reservation that are part of the Uinta Basin Ozone Nonattainment
Area. Are there any reasons not to create a U&O ERC bank, or are there
suggestions to handle surplus emission reduction crediting through
another approach? Finally, are there existing state-run ERC banking
systems that may serve as a good example for developing a U&O ERC bank?
B. Participation in the U&O ERC bank: The EPA expects that the
principal clients of a U&O ERC bank would be industrial sources within
the Indian country portions of the Uinta Basin Ozone Nonattainment Area
depositing emission reduction credits for sale or for later use to
support future development, as well as new and modified industrial
sources needing offsets necessary to obtain a major NNSR permit. We
seek comment on what other entities (besides companies implementing
voluntary emissions controls and/or companies needing offsets to
support new development) should be permitted to participate in a U&O
ERC bank. Such entities might include non-governmental organizations,
federal government agencies, local government, the Ute Indian Tribe and
others. Are there any reasons to preclude any entities from purchasing
ERC credits from such a bank?
C. ERC bank format: The EPA seeks comment on the format and
features of a U&O ERC bank. It is expected that (as with most ERC
banks) a database would be created to track and manage ERCs, through
their deposit, trading and use, that will be publicly available online.
The EPA solicits comment on this expectation. Additionally, should the
owner of an ERC be required to deposit the ERC into the bank before
using it as an offset, in order to centralize tracking? Or, if an
emissions reduction is created for a specific project, can it be
evaluated as part of the project and avoid the U&O ERC bank? The EPA
seeks comments on what information should be maintained in the database
for each banking action.
D. Creditable emissions reductions: The EPA intends to propose a
rule that specifically outlines what emissions reductions qualify as
creditable for deposit in a U&O ERC bank. Generally, qualifying ERCs
are limited to emissions reductions that are real, quantifiable,
enforceable, permanent, and surplus of CAA requirements. Such ERCs are
typically generated by permanently shutting down equipment, modifying a
process (i.e., using a lower VOC/sulfur containing material), or by
adding emissions controls beyond those required by any applicable
regulation.
Some state-run ERC banks require that a certain percentage of
reductions be removed and made ineligible for future use to ensure an
environmental benefit to the banking system. For instance, if an
operator achieves a 10 tpy reduction by implementing an emissions
control on a given source, some percentage (such as 10%) may be retired
for environmental benefit, and only 9 tpy would be deposited in the ERC
bank for future offsets or compensating emissions reductions. This
ensures that more accelerated progress is made towards attainment. The
EPA seeks comment on whether this practice should be implemented for a
U&O ERC bank, and if so, at what percentage?
Given the seasonal nature of ozone generation in the Uinta Basin,
are there legally and technically supported approaches to allowing
seasonal emissions reductions to be credited? Should seasonal
limitations be placed on the program? For instance, should the rule
prevent summertime reductions from being used to support the addition
of wintertime emissions?
How should the ERC banking rule treat emissions reductions that
occur from emissions unit shutdowns? What requirements should apply to
shut-down equipment to ensure it meets the requirement to be a
permanent reduction? There are restrictions on the use of reductions
occurring from equipment shutdowns in 40 CFR 51.165(a)(3)(ii)(C)(1),
such as only being eligible for use if the shutdown occurred after the
last day of the baseline year for the plan. Additionally, use of
reductions from equipment shutdowns must be restricted to prohibit
operation of that unit elsewhere in the nonattainment area. Should the
use of reductions from shut-down equipment be restricted further, such
as disallowing operation in a broader area outside of the nonattainment
area, or requiring destruction of the unit?
E. Trading of ERCs: A principal use of an ERC bank would be to
allow companies in need of emissions offsets to construct new and
modified sources to purchase those credits from companies that have
permanently reduced emissions and deposited those ERCs in the bank. The
EPA expects that a U&O ERC bank would allow the purchase and exchange
of ERCs, and such exchanges would be publicly documented. The EPA
further anticipates that the price of ERCs would be determined by the
open market based on the demand for such ERCs. The EPA intends to
propose to require documentation from both the company selling a credit
and the company acquiring the credit in order to process that
transaction and would make publicly available such information--
including the number of ERCs purchased, the method of emissions
reduction, and the purchase price. The EPA seeks comment on this
expectation and any input on what additional information should be
provided to document transactions within the anticipated U&O ERC bank
database.
F. Use of ERCs: In addition to using banked ERCs as offsets for new
and modified major sources, these emissions reductions may also be used
to show that a new or modified minor source does not cause or
contribute to an ozone NAAQS violation, or to satisfy general
conformity requirements. If such reductions are not available within
the existing inventory of a company's emissions sources or are needed
by a federal agency to demonstrate general conformity for a specific
action, the U&O ERC bank could be used to facilitate the purchase of
available ERCs. In such a case, the necessary amount of ERCs would be
purchased from one (or more) entities in possession of ERCs.
Documentation of the transaction would be provided to the EPA, and
those credits would be withdrawn from the bank when used to support a
permit action. The EPA intends to propose a U&O ERC banking rule that
describes the specifics of this process, consistent with the principles
and requirements described in the EIP Guidance.\22\ However, the EPA
solicits comments on any additional considerations and flexibilities
that should be made to allow this process to function efficiently for
participants within the U&O Reservation. A primary goal of the program
is to allow eligible ERCs to be certified for eventual use as offsets
in accordance with major NNSR and general conformity requirements. Are
there any other uses of an ERC that EPA
[[Page 24069]]
should be evaluating, such as for discretionary use in minor NNSR?
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\22\ All offsets used for the purpose of satisfying general
conformity requirements must meet the regulatory requirements
relating to offsets in 40 CFR 93.158(a)(5)(iii).
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G. Withdrawal of ERCs from the bank: The EPA intends to evaluate
banked credits for compliance with the ``surplus of Clean Air Act''
requirement at the time of their use as compensating offsetting
emissions (e.g., upon issuance of a permit). In the event of future
promulgation of emissions controls as part of a federal or tribal
implementation plan, or to satisfy CAA requirements such as reasonably
available control technology (RACT) or RFP, the EPA does not expect
sources that have already provided offsets to need to pursue additional
offsetting emissions. The EPA seeks comment on this anticipated
expectation and on whether any other factors should be considered. We
also seek comment as to whether banked credits should be discounted or
expire after some period of time, even if they remain surplus of CAA
requirements.
H. Emissions reductions achieved before the effective date of final
U&O ERC banking rule: The EPA expects that because the final 2015 Ozone
Implementation Rule \23\ defines a primary base year of 2017, that year
will likely be an appropriate base year for the Uinta Basin Ozone
Nonattainment Area banking and trading program. To allow for near-term
surplus emissions reductions that would benefit air quality, the EPA
intends to include as a component of the proposed rule that qualifying
emissions reductions achieved before the final rule's effective date,
but after the nonattainment baseline year, may be banked; effectively,
any emissions reduction achieved after January 1, 2018. The EPA seeks
comment on the inclusion of this flexibility.
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\23\ Implementation of the 2015 National Ambient Air Quality
Standards for Ozone: Nonattainment Area State Implementation Plan
Requirements. 83 FR 62998 (Dec. 6, 2018). https://www.govinfo.gov/content/pkg/FR-2018-12-06/pdf/2018-25424.pdf.
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I. Geographic considerations and interaction with Utah-managed CAA
planning requirements: As explained previously, we anticipate that any
proposed U&O ERC bank would only apply to sources on Indian country
lands within the U&O Reservation that are within the Uinta Basin Ozone
Nonattainment Area. There may, however, be situations where sources on
land managed by Utah have a need for ERCs and wish to purchase them
from a source in Indian country. Conversely, sources covered by the
EPA-run bank may wish to purchase ERCs from a source managed by Utah.
From a scientific standpoint, ozone precursor emissions are generally
uniformly mixed across jurisdictions beneath the inversion during high-
ozone events in the Uinta Basin Ozone Nonattainment Area; the original
location within the nonattainment area of emissions (and emissions
reductions) is irrelevant to the nonattainment area's overall ozone
design values. However, as a legal matter, the EPA is limited in the
scope of applying any potential U&O ERC bank rulemaking to sources in
Indian country. Accordingly, we seek comment on whether, and under what
criteria and constraints, an EPA-run bank for sources on the Indian
country portion of the Uinta Basin Ozone Nonattainment Area should
interact with any state-run bank that may be developed for sources on
land under Utah CAA regulatory jurisdiction. We also seek comment on
whether the EPA should pursue collaboration with Utah in allowing for
cross-jurisdictional exchange of ERCs. Finally, is there any
justification to allow the use, or banking of credits outside of the
Uinta Basin Nonattainment Area, but within the general geographic
extent of the Uinta Basin?
J. General comments: The EPA also invites the public's comment on
any other questions associated with developing an emissions banking and
trading program to address the goals described previously in the
``Purpose'' section of this ANPRM.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, Oct. 4, 1993), the OMB has determined that this is
a not a ``significant regulatory action.'' Because this ANPRM does not
propose or impose any requirements, and instead seeks comments and
suggestions for the Agency to consider in possibly developing a
subsequent proposed rule, the various statutes and Executive Orders
that normally apply to rulemaking do not apply in this case. Should the
EPA subsequently determine to pursue a rulemaking, the EPA will address
the statutes and Executive Orders as applicable to that rulemaking.
The EPA seeks any comments or information that would help the
Agency ultimately to assess the potential impact of a rule on small
entities pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
et seq.); to consider voluntary consensus standards pursuant to section
12(d) of the National Technology Transfer and Advancement Act of 1995
(NTTAA) (15 U.S.C. 272 note); to consider environmental health or
safety effects on children pursuant to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997); or to consider human health or
environmental effects on minority or low-income populations pursuant to
Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, Feb. 16, 1994).
The Agency will consider such comments during the development of
any subsequent proposed rule.
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: May 18, 2019.
Debra Thomas,
Acting Regional Administrator, EPA Region 8.
[FR Doc. 2019-10798 Filed 5-23-19; 8:45 am]
BILLING CODE 6560-50-P
