[Federal Register Volume 81, Number 107 (Friday, June 3, 2016)]
[Rules and Regulations]
[Pages 35944-35981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11969]
[[Page 35943]]
Vol. 81
Friday,
No. 107
June 3, 2016
Part III
Environmental Protection Agency
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40 CFR Part 49
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; Final Rule
Federal Register / Vol. 81 , No. 107 / Friday, June 3, 2016 / Rules
and Regulations
[[Page 35944]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-HQ-OAR-2014-0606; FRL-9946-56-OAR]
RIN 2060-AS27
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
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a
federal implementation plan (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 FIP
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''). For the oil and
natural gas production and natural gas processing segments of the oil
and natural gas sector, the FIP requires compliance with emission
limitations and other requirements from certain federal emission
standards as written at the time of construction or modification for
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 EPA is also finalizing several amendments to the Federal Indian
Country Minor NSR rule, including adding new text regarding the purpose
of the program, revising the program overview provision, revising
certain provisions to incorporate compliance with the FIP, revising the
applicability provision to establish that oil and natural gas sources
are required to comply with the FIP unless they either opt to obtain a
source-specific permit or are otherwise required to do so, and revising
the source registration provision for oil and natural gas sources
constructing under this FIP. Also, we are revising the applicability of
the Federal Indian Country Minor NSR rule to comport with a court
decision that addressed the scope of the EPA's jurisdiction to
implement the Federal Indian Country Minor NSR rule in Indian country:
Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir.
2014). This court decision has the same effect on the scope of the
EPA's jurisdiction under the Federal Major New Source Review Program
for Nonattainment Areas in Indian Country and so we are changing the
applicability of the Federal Indian Country Nonattainment Major NSR
rule as well.
DATES: This final rule is effective on August 2, 2016.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2014-0606. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through http://www.regulations.gov.
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]. For questions
about the applicability of this action to a particular source, please
contact the appropriate EPA region:
EPA Region 5 (Illinois, Indiana, Michigan, Minnesota,
Ohio, and Wisconsin)--Ms. Genevieve Damico, Air Permits Section,
Environmental Protection Agency, Region 5, Chicago, Illinois 60604;
telephone number (312) 353-4761; fax (312) 385-5501; email address:
[email protected].
EPA Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma,
and Texas)--Ms. Bonnie Braganza, Air Permits Section, Multimedia
Permitting and Planning Division, Environmental Protection Agency
Region 6, Dallas, Texas 75202; telephone number (214) 665-7340; fax
number (214) 665-6762; email address: [email protected].
EPA Region 8 (Colorado, Montana, North Dakota, South
Dakota, Utah, and Wyoming)--Ms. Claudia Smith, Air Program, Mail Code
8P-AR, Environmental Protection Agency Region 8, Denver, Colorado
80202; telephone number (303) 312-6520; fax number (303) 312-6520;
email address: [email protected].
EPA Region 9 (Arizona, California, Hawaii, Nevada, and
Pacific Islands)--Ms. Lisa Beckham, Permits Office, Air Division, Air-
3, Environmental Protection Agency Region 9, San Francisco, California
94105; telephone number (415) 972-3811; fax number (415) 947-3579;
email address: [email protected].
All other EPA regions--The permit reviewer for minor
sources in Indian country for your EPA region. You can find the list of
the EPA permit reviewers at: https://www.epa.gov/tribal-air/tribal-minor-new-source-review. Scroll down to the heading, ``Existing Source
Registration,'' and click on ``Reviewing Authority'' to access
``Environmental Protection Agency's Reviewing Authorities for
Permits.''
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. General Information
A. What entities are potentially affected by this final action?
B. Where can I get a copy of this document and other related
information?
II. Summary of Final Oil and Natural Gas FIP
A. Overview
B. Eight Federal Rules and Exclusions in FIP
C. Addressing Threatened and Endangered Species and Historic
Properties
D. Summary of Final Amendments to the Federal Indian Country
Minor NSR Rule
III. Background
A. Federal Indian Country Minor NSR Rule
B. What is a FIP?
C. Oil and Natural Gas Sector
D. EPA Actions Affecting Oil and Natural Gas Minor Sources in
Areas Covered by the Federal Indian Country Minor NSR Rule
IV. Summary of Final Action, Comments and Responses
A. Overview of Changes to the FIP and Federal Indian Country
Minor NSR Rule
B. Proposed Amendments to the Federal Indian Country Minor NSR
Rule
C. Implementation-Related Issues
D. Requirements Relating to Threatened or Endangered Species and
Historic Properties
E. Rationale for the FIP
F. The FIP as an Alternative to Source-Specific Permits, General
Permits and Permits by Rule
[[Page 35945]]
G. Synthetic Minor Sources and Minor Modifications at Major
Sources
H. Nonattainment Areas
I. How the EPA Selected Equipment Included in the Proposed FIP
J. Pollutants Included in the Proposed FIP
K. Exclusion of Existing Sources From the Proposed Oil and
Natural Gas FIP
L. General Comments (e.g., Administrative, Incorporate by
Reference)
M. Other Comments
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. General Information
A. What entities are potentially affected by this final action?
Entities potentially affected by this action consist of owners/
operators of facilities included in the following source categories
that are located, or planning to locate, in an Indian reservation or in
another area of Indian country (as defined in 18 U.S.C. 1151) over
which an Indian tribe, or the EPA, has demonstrated that the tribe has
jurisdiction where there is no EPA-approved program in place and that
are subject to the requirements of the Federal Indian Country Minor NSR
rule.
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.
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 ** 2211 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 final
Federal Minor NSR Program in Indian Country (40 Code of Federal
Regulations (CFR) 49.153), as well as the FIP applicability in Sec.
49.101. 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 http://www.epa.gov/nsr and on the tribal NSR page at https://www.epa.gov/tribal-air/tribal-minor-new-source-review.
II. Summary of Final Oil and Natural Gas FIP
A. Overview
We are finalizing a FIP to protect air quality in Indian country
due to the impact of new true minor sources \1\ 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
[[Page 35946]]
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 the referenced areas of
Indian country designated as attainment, unclassifiable or attainment/
unclassifiable. It does not apply to new and modified true minor
sources that are located or expanding in referenced areas of Indian
country designated nonattainment. 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 starting
September 2, 2014, per the Federal Indian Country Minor NSR rule.
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\1\ Under Sec. 49.52(d), true minor source means a source, not
including the exempt emissions units and activities listed in Sec.
49.153(c), that emits, or has the potential to emit, regulated NSR
pollutants in amounts that are less than the major source thresholds
in Sec. 49.167 or Sec. 52.21, as applicable, but equal to or
greater than the minor NSR thresholds in Sec. 49.153, without the
need to take an enforceable restriction to reduce its potential to
emit to such levels. That is, a true minor source is a minor source
that is not a synthetic minor source. The potential to emit includes
fugitive emissions, to the extent that they are quantifiable, only
if the source belongs to one of the source categories listed in part
51, appendix S, paragraph II.A.4(iii) or Sec. 52.21(b)(1)(iii), as
applicable.
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However, in response to comments, we are stating here our intent to
potentially apply this national FIP's requirements as appropriate to
nonattainment areas where the EPA has established a separate, area-
specific FIP. In that separate, area-specific action, we would
propose--and seek comment on--the application of this FIP's
requirements to new and modified true minor sources in those certain
areas designated nonattainment. This possible, future extension of
coverage of this FIP could provide a mechanism for streamlining
permitting in nonattainment areas, protecting air quality and allowing
continued oil and natural gas growth in Indian country.
This FIP fulfills the EPA's obligation under the Federal Indian
Country Minor NSR rule to issue minor source NSR pre-construction
permits. The FIP provides a streamlined, alternative approach that
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. In addition, with advance notice the Reviewing
Authority can require a source to obtain a source-specific permit based
on local or reservation-specific air quality concerns where the
emissions from the source could cause or contribute to a National
Ambient Air Quality Standards (NAAQS) or Prevention of Significant
Deterioration (PSD) increment violation. To protect the NAAQS, the
Reviewing Authority can regulate emissions from operations at the minor
source not regulated by the FIP, or can require more stringent emission
limitations for operations at the source than would be required by the
FIP.
In this 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 volatile organic
compounds (VOC), nitrogen oxides (NOX), sulfur dioxide
(SO2), particulate matter (PM, PM10,
PM2.5), hydrogen sulfide (H2S), carbon monoxide
(CO) 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, and storage vessels; 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).\2\ These
regulations are listed in Table 2.
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\2\ 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.
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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 this 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 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). This includes the amendments to the
oil and natural gas NSPS that have become part of the final oil and
natural gas NSPS as a result of the 2016 final oil and natural gas
NSPS.\3\ Sources subject to this 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 sources and would otherwise
be subject to those future changes. To help understand the requirements
of this oil and natural gas FIP, please see the 2016 final oil and
natural gas NSPS and the provisions for each of the eight federal rules
(i.e., five NSPS and three NESHAP) identified in Table 2.\4\ (This 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 this FIP.) The excluded provisions are listed below.
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\3\ ``Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed and Modified Sources,'' U.S. Environmental Protection
Agency, signed May 12, 2016, http://www.epa.gov/airquality/oilandgas/actions.html.
\4\ The proposed FIP only included six emissions standards; in
response to comments, we are adding two more, bringing the total to
eight. For a discussion of this expansion and the pertinent
comments, see Section IV.I.
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Also discussed in this section are features of the FIP and
amendments to the Federal Indian Country Minor NSR rule that are
largely necessary to facilitate implementation of the FIP.
[[Page 35947]]
Table 2--Eight Federal Rules Included in the Oil and Natural Gas FIP for Indian Country \5\
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Potentially affected
sources in the oil and
natural gas production
40 CFR part and subpart Title of subpart and natural gas Location
processing segments of
the oil and natural gas
sector
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40 CFR part 63, subpart DDDDD........ National Emission Process heaters........ http://www.ecfr.gov/cgi-
Standards for bin/text-
Hazardous Air idx?SID=9f31077f895e9c
Pollutants for Major b417f5386519941a47&mc=
Sources: Industrial, true&node=sp40.14.63.d
Commercial, and dddd&rgn=div6.
Institutional Boilers
and Process Heaters.
40 CFR part 63, subpart ZZZZ \6\..... Subpart ZZZZ--National Reciprocating Internal http://www.ecfr.gov/cgi-
Emissions Standards Combustion Engines. bin/text-
for Hazardous Air idx?c=ecfr;rgn=div6;vi
Pollutants for ew=text;node=%3A14.0.1
Stationary .1.1.1;idno=40;sid=e94
Reciprocating Internal dcfde4a04b27290c445a56
Combustion Engines. e635e58;cc=ecfr.
40 CFR part 60, subpart IIII......... Standards of Compression Ignition http://www.ecfr.gov/cgi-
Performance for Internal Combustion bin/text-
Stationary Compression Engines. idx?SID=9f31077f895e9c
Ignition Internal b417f5386519941a47&mc=
Combustion Engines. true&node=sp40.7.60.ii
ii&rgn=div6.
40 CFR part 60, subpart JJJJ......... Standards of Spark Ignition Internal http://www.ecfr.gov/cgi-
Performance for Combustion Engines. bin/text-
Stationary Spark idx?SID=9f31077f895e9c
Ignition Internal b417f5386519941a47&mc=
Combustion Engines. true&node=sp40.7.60.jj
jj&rgn=div6.
40 CFR part 60, subpart Kb........... Standards of Fuel Storage Tanks..... http://www.ecfr.gov/cgi-
Performance for bin/text-
Volatile Organic idx?SID=9f31077f895e9c
Liquid Storage Vessels b417f5386519941a47&mc=
(Including Petroleum true&node=sp40.7.60.k_
Liquid Storage 0b&rgn=div6.
Vessels) for Which
Construction,
Reconstruction, or
Modification Commenced
After July 23, 1984.
40 CFR part 60, subpart OOOOa (final) Standards of Storage Vessels, http://www.epa.gov/
Performance for Crude Pneumatic Controllers, airquality/oilandgas/
Oil and Natural Gas Compressors actions.html.
Facilities for which (Reciprocating and
Construction, Centrifugal),
Modification, or Hydraulically
Reconstruction Fractured Oil and
Commenced after Natural Gas Well
September 18, 2015. Completions, Pneumatic
Pumps and Fugitive
Emissions from Well
Sites and Compressor
Stations.
40 CFR part 63, subpart HH........... National Emission Glycol Dehydrators..... http://www.ecfr.gov/cgi-
Standards for bin/text-
Hazardous Air idx?SID=9f31077f895e9c
Pollutants from Oil b417f5386519941a47&mc=
and Natural Gas true&node=sp40.11.63.h
Production Facilities. h&rgn=div6.
40 CFR part 60, subpart KKKK \7\..... Standards of Combustion Turbines.... http://www.ecfr.gov/cgi-
Performance for New bin/text-
Stationary Combustion idx?SID=4090b6cf5eea5c
Turbines. b67940a80906ff09a2&mc=
true&node=sp40.7.60.kk
kk&rgn=div6.
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B. Eight Federal Rules and Exclusions in FIP
This oil and natural gas FIP requires owners/operators of new and
modified 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 located in areas covered by the Federal Indian
Country Minor NSR rule to comply with eight federal rules. One of the
rules this FIP adopts is certain requirements of the final 40 CFR part
60, subpart OOOOa NSPS.\8\ Requirements under the final NSPS, subpart
OOOOa involve standards for oil and natural gas production and natural
gas processing.\9\
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\5\ 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 HAP. VOC is an NSR-
regulated pollutant of concern in the Federal Indian Country Minor
NSR rule.
\6\ This regulation was not included in the proposed FIP but is
being added to the final FIP in response to comments.
\7\ Ibid.
\8\ Finalized 40 CFR part 60, subpart OOOOa, covers the emission
sources covered under existing 40 CFR part 60, subpart OOOO, as well
as the added coverage of new, reconstructed and modified emission
sources beyond those covered in existing 40 CFR part 60, subpart
OOOO. These additional sources are hydraulically fractured oil well
completions, pneumatic pumps and fugitive emissions from well sites
and compressor stations.
\9\ This list includes centrifugal compressors, reciprocating
compressors, pneumatic controllers, pneumatic pumps, fugitive
emissions from compressor stations, and storage vessels. It excludes
sources located in the transmission and storage segment because they
are not part of this FIP, which focusses on the oil and natural gas
production and natural gas processing segments of the oil and
natural gas sector.
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We are requiring under this FIP that owners/operators of new true
minor sources and modifications of existing true minor sources comply
with all applicable requirements of the eight federal rules listed in
Table 2 above in effect at the time they begin construction, except for
the excluded provisions indicated below. In general, for this FIP, we
are excluding specific provisions of the rules for three reasons: (1)
They are not relevant (e.g., equipment that is not used in this
[[Page 35948]]
sector); (2) they would not apply to the oil and natural gas production
and natural gas processing segments of the oil and natural gas sector;
(3) they apply only to equipment manufacturers and not to owners/
operators.
For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of 40 CFR part 63, subpart DDDDD (NESHAP for
Major Sources: Industrial, Commercial, and Institutional Boilers and
Process Heaters), as written at the time \10\ the owner/operator begins
construction on the new true minor source or on the minor modification
at an existing true minor source.
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\10\ ``Written at the time'' for a rule means as currently
written and as may be amended in the future.
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For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of 40 CFR part 63, subpart ZZZZ (NESHAP for
Stationary Reciprocating Internal Combustion Engines), as written at
the time the owner/operator begins construction on the new true minor
source or on the minor modification at an existing true minor source.
For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of 49 CFR part 60, subpart IIII (Standards of
Performance for Stationary Compression Ignition Internal Combustion
Engines), as written at the time the owner/operator begins construction
on the new true minor source or on the minor modification at an
existing true minor source, except for the following: \11\
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\11\ In the proposal, we excluded the following provision that
we are now not excluding because area sources that are also true
minor sources may be subject to this rule: Sec. 60.4200(c)--Am I
subject to this subpart? (area sources and exemptions from Title V
permits).
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Sec. 60.4200(a)(1)--Am I subject to this subpart?
(applies to manufacturers);
Sec. 60.4200(b)--Not applicable to a stationary ignition
internal combustion engine being tested at an engine test cell/stand;
Sec. 60.4201--What emission standards must I meet for
non-emergency engines if I am a stationary compression ignition
internal combustion engine manufacturer?;
Sec. 60.4202--What emission standards must I meet for
emergency engines if I am a stationary compression ignition internal
combustion engine manufacturer?;
Sec. 60.4203--How long must my engines meet the emission
standards if I am a manufacturer of stationary compression ignition
internal combustion engines?;
Sec. 60.4210--What are my compliance requirements if I am
a stationary compression ignition internal combustion engine
manufacturer?; and
Sec. 60.4215--What requirements must I meet for engines
used in Guam, American Samoa, or the Commonwealth of the Northern
Mariana Islands?.
For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of 40 CFR part 60, subpart JJJJ (Standards of
Performance for Crude Oil and Natural Gas Facilities for which
Construction, Modification, or Reconstruction Commenced after September
18, 2015), as written at the time the owner/operator begins
construction on the new true minor source or on the minor modification
at an existing true minor source, except for the following:
Sec. 60.4230(b)--Not applicable to stationary spark
ignition internal combustion engines being tested at an engine test
cell/stand;
Sec. 60.4230(c)--Exemption for obtaining a Title V permit
for an owner or operator of an area source subject to this part;
Sec. 60.4231 and Sec. 60.4232--Emission standards for
manufacturers;
Sec. 60.4238 through Sec. 60.4242--Compliance
Requirements for Manufacturers; and
Sec. 60.4247--Mobile source provisions that apply to
manufacturers of stationary spark ignition internal combustion engines
or equipment containing such engines.
For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of 40 CFR part 60, subpart Kb (Standards of
Performance for Volatile Organic Liquid Storage Vessels), as written at
the time the owner/operator begins construction on the new true minor
source or on the minor modification at an existing true minor source,
except for the following:
Sec. 60.112b(c)--Site-specific standard for Merck & Co.,
Inc.'s Stonewall Plant in Elkton, Virginia; and
Sec. 60.117b(a) and (b)--Delegation of authority.
For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of part 60, subpart OOOOa (Standards for New
and Modified Sources in the Oil and Natural Gas Sector), as written at
the time the owner/operator begins construction on the new true minor
source or on the minor modification at an existing true minor source,
except for the following: \12\
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\12\ In the proposal, we excluded the following provision that
we are now not excluding because we have expanded the scope of this
FIP to include gas processing plants: Sec. 60.5365a(f)(3)--
Equipment exemption at processing plant.
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Sec. 60.5365a(h)(4)--Existing sources constructed after
August 23, 2011;
Sec. 60.5370a(c)--Permit exemption;
Sec. 60.5413a(a)(5)--Exemptions from performance
testing--hazardous waste incinerator;
Sec. 60.5420a(a)(2)(i)--Advance notification requirements
for well completions; and
Sec. 60.5420a(a)(2)(ii)--Advance notification
requirements of well completions when subject to state regulation that
requires advance notification.
For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of 40 CFR part 63, subpart HH (NESHAP from
Oil and Natural Gas Production Facilities), as written at the time the
owner/operator begins construction on the new true minor source or on
the minor modification at an existing true minor source, except for the
following: \13\
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\13\ In the proposal, we excluded the following provision that
we are now not excluding because we have expanded the scope of this
FIP to include gas processing plants: Sec. 63.760(b)(1)(iii)--
Equipment located at natural gas processing plants. Similarly, for
the same reason, we have also modified the exclusion for Sec.
63.764(c)(2) by removing ``and equipment at natural gas processing
plants, respectively.''
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Sec. 63.760(a)(2)--Facilities that process, upgrade or
store hydrocarbon liquids;
Sec. 63.760(b)(1)(ii)--Each storage vessel with the
potential for flash emissions;
Sec. 63.760(g)--Recordkeeping for major sources that
overlap with other regulations for equipment leaks;
Sec. 63.764(c)(2)--Requirements for compliance with
standards for storage vessels;
Sec. 63.766--Storage vessel standards; and
Sec. 63.769--Equipment leak standards.
For purposes of this FIP, owners/operators of true minor sources
(and minor modifications at true minor sources) must comply with all of
the applicable provisions of 40 CFR part 60, subpart KKKK (Standards of
Performance for Stationary Combustion
[[Page 35949]]
Turbines), as written at the time the owner/operator begins
construction on the new true minor source or on the minor modification
at an existing true minor source.
C. Addressing Threatened and Endangered Species and Historic Properties
We are requiring that, prior to beginning construction, under Sec.
49.104, new true minor sources and minor modifications at existing true
minor sources document that potential impacts on threatened and
endangered species and historic properties (collectively referred to as
``protected resources'') have been assessed. The section provides two
options for documenting this assessment: (1) Submittal of documentation
to the EPA Regional Office (and to the relevant tribe for the area
where the source is located or locating) that a site-specific
assessment conducted by another federal agency has been completed for
the specific oil and natural gas activity, and that the owner/operator
meets all air quality-related requirements as specified within all
documents/approvals obtained through that assessment (these
requirements are typically implemented and enforced as conditions of an
approved Surface Use Plan of Operations and/or Application for Permit
to Drill); \14\ or (2) submittal of documentation to the EPA Regional
Office (and to the relevant tribe for the area where the source is
located or locating) demonstrating that the source has completed the
screening processes specified by the EPA for consideration of
threatened and endangered species and historic properties and received
a determination from the EPA stating that it has satisfactorily
completed these processes.\15\ (The processes are contained in the
following document: ``Procedures to Address Threatened and Endangered
Species and Historic Properties for the 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,'' https://www.epa.gov/tribal-air/tribal-minor-new-source-review.)
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\14\ This assessment will typically be conducted through the
National Environmental Policy Act process and result in either a
Record of Decision or a Finding of No Significant Impact document.
\15\ This process of source documentation submittal and the
EPA's confirmation that it has satisfactorily completed the
procedures must occur prior to the source's submittal of its Part 1
Registration Form pursuant to Sec. 49.160(c)(1)(iv).
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D. Summary of Final Amendments to the Federal Indian Country Minor NSR
Rule
This action finalizes several amendments to the Federal Indian
Country Minor NSR rule.
First, we are revising Sec. 49.151(b)(1) to add new text regarding
the purpose of the Federal Minor NSR Program in Indian Country. The
revised text indicates that the program satisfies the requirements of
section 110(a)(2)(C) of the Clean Air Act (CAA) by establishing: (1) A
pre-construction permitting program for all new and modified minor
sources (minor sources) and minor modifications at major sources
located in Indian reservations and other areas of Indian country over
which an Indian tribe, or the EPA, has demonstrated that the tribe has
jurisdiction and where there is no EPA-approved program in place, and
(2) a FIP (Sec. Sec. 49.101 to 49.105) for true minor sources in the
oil and natural gas production and natural gas processing segments of
the oil and natural gas sector that are located in such areas of Indian
country.
Second, we are revising Sec. 49.151(c)(1) (and Sec. 49.166(c)(1))
to comport the applicability of the Federal Indian Country Minor NSR
rule with a court decision that addressed the scope of the EPA's
jurisdiction to implement the Federal Indian Country Minor NSR rule:
Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir.
2014) (hereinafter referred to as ODEQ v. EPA).\16\ We are also noting
in the definition of Indian country in Sec. 49.152(d) (and Sec.
49.167) that the geographic scope of the application of the rule is as
specified in Sec. 49.151(c)(1) (and Sec. 49.166(c)(1)).\17\
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\16\ In that case, the U.S. Court of Appeals for the District of
Columbia Circuit vacated the Federal Indian Country Minor NSR rule
and Federal Indian Country Nonattainment Major NSR rule with respect
to non-reservation areas of Indian country (i.e., dependent Indian
communities and Indian allotments located outside of reservations)
in the absence of a demonstration of tribal jurisdiction by the EPA
or a tribe.
\17\ We are also revising Sec. 49.166(c)(1) to comport the
applicability of the Federal Indian Country Nonattainment Major NSR
rule with the ODEQ v. EPA decision. The court decision has the same
effect on the scope of the EPA's jurisdiction under the Federal
Major New Source Review Program for Nonattainment Areas in Indian
Country and so we are changing the applicability of the Federal
Indian Country Nonattainment Major NSR rule as well.
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Third, we are revising Sec. 49.151(c)(1)(iii)(A) to clarify
requirements for oil and natural gas activities with respect to the
registration deadline that conforms with the permitting deadline in
Sec. 49.151(c)(1)(iii)(B).
Fourth, we are revising Sec. 49.151(c)(1)(iii)(B) to clarify
requirements for oil and natural gas activities with respect to the
permitting deadline. We are also revising the provision to provide that
true minor oil and natural gas sources can either comply with the FIP
in lieu of obtaining a minor NSR permit or obtain a minor source permit
if the source opts out of the FIP.
Fifth, we are revising Sec. 49.151(d)(1), (2) and (4) to
incorporate compliance with the FIP. We are revising Sec. 49.151(d)(1)
to indicate that if you begin construction of a new source or
modification that is subject to the Federal Indian Country Minor NSR
Program after the applicable date \18\ without either applying for and
receiving a permit pursuant to the program or complying with the FIP
for the oil and natural gas production and natural gas processing
segments of the oil and natural gas sector, the owner/operator of the
source will be subject to appropriate enforcement action. We are
revising Sec. 49.151(d)(2) to indicate that if you do not construct or
operate your new source or existing source modification in accordance
with the terms of your minor NSR permit or the FIP for the oil and
natural gas production and natural gas processing segments of the oil
and natural gas sector, you will be subject to appropriate enforcement
action. We are revising Sec. 49.151(d)(4) to indicate that issuance of
a permit or compliance with the FIP for the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector does not relieve the owner/operator of a source of the
responsibility to comply fully with applicable provisions of any EPA-
approved implementation plan or FIP or any other requirements under
applicable law.
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\18\ This date is September 2, 2014, for all true minor sources,
except oil and natural gas true minor sources, and October 3, 2016,
for oil and natural gas true minor sources.
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Sixth, we are amending Sec. 49.152 by adding a definition for
``Startup of production,'' which, to ensure consistency across the
EPA's regulations for the oil and natural gas sector, points directly
to the term as defined under 40 CFR part 60, subpart OOOOa.
Seventh, we are revising Sec. Sec. 49.153(a)(1)(i)(B) and
(a)(1)(ii)(B) to establish that 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, unless the
owner/operator of a source opts-out or is otherwise required by the EPA
to obtain a minor source permit. Existing Sec. 49.153(a)(1)(i)(B)
requires the owner/
[[Page 35950]]
operator of a new source to determine whether the source's potential to
emit (PTE) is equal to or greater than the corresponding minor NSR
threshold. If it is, then the source is subject to the pre-construction
requirements of the Federal Indian Country Minor NSR rule for that
pollutant. The amendment adds a clause to the end of the paragraph
stating that for sources in the oil and natural gas production and
natural gas processing segments of the oil and natural gas sector, if
the PTE for oil and natural gas production sources is equal to or
greater than the corresponding minor NSR threshold, such sources shall
instead comply with the requirements of Sec. Sec. 49.101 to 49.105,
unless the owner/operator of the source opts-out of the FIP pursuant to
Sec. 49.101(b)(2), or is otherwise required by the EPA to obtain a
source-specific minor source permit pursuant to Sec. 49.101(b)(3).
Existing Sec. 49.153(a)(1)(ii)(B) requires the owner/operator of
modified sources to determine whether the increase in allowable
emissions resulting from the modification would be equal to or greater
than the minor NSR threshold for the pollutant being evaluated. If it
is, then the source is subject to the pre-construction requirements of
the Federal Indian Country Minor NSR rule for that pollutant. The
amendment adds a clause to the end of the paragraph stating that, for
sources in the oil and natural gas production and natural gas
processing segments of the oil and natural gas sector, if the PTE for
such sources is equal to or greater than the corresponding minor NSR
threshold, such sources must instead comply with the requirements of
Sec. Sec. 49.101 to 49.105, unless the owner/operator of the source
opts-out of the FIP pursuant to Sec. 49.101(b)(2) or is otherwise
required by the EPA to obtain a minor source permit pursuant to Sec.
49.101(b)(3).
Finally, we are revising Sec. Sec. 49.160(c)(1)(ii) and (iii),
adding Sec. 49.160(c)(1)(iv) and revising Sec. 49.160(c)(4). For
Sec. 49.160(c)(1)(ii), we are revising the provision to clarify
requirements for oil and natural gas activities with respect to the
registration deadline that conforms with the permitting deadline in
Sec. 49.151(c)(1)(iii)(B). For Sec. 49.160(c)(1)(iii), we are
revising the language to indicate that if your true minor source is an
oil and natural gas source, and you commence construction or
modification of your source on or after October 3, 2016,\19\ you must
report your source's actual emissions (if available) as part of your
permit application (source-specific permits), unless you are subject to
the FIP. (If you are subject to the FIP, then you must register your
oil and natural gas source pursuant to Sec. 49.160(c)(1)(iv).) For
source-specific oil and natural gas source permittees, your permit
application will be used to fulfill the registration requirements
described in Sec. 49.160(c)(2).
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\19\ In the proposed FIP action, we had proposed to extend the
registration form from the then applicable date of March 2, 2016, to
October 3, 2016. We have since finalized amendments to extend the
permitting compliance and registration deadlines (``Review of New
Sources and Modifications in Indian Country: Extension of Permitting
and Registration Deadlines for True Minor Sources Engaged in Oil and
Natural Gas Production in Indian Country,'' U.S. Environmental
Protection Agency, 81 FR 9109, February 24, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/2016-03623.pdf).
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We are adding Sec. 49.160(c)(1)(iv) to indicate that sources
subject to the FIP must still satisfy the requirement to register under
the Federal Indian Country Minor NSR rule by using the two registration
forms provided by the EPA \20\ rather than a permit application. The
registration form contains the information required in Sec.
49.160(c)(2). Minor sources complying with the FIP for the oil and
natural gas production and natural gas processing segments of the oil
and natural gas sector, must submit the Part 1 Registration Form that
contains the information in Sec. 49.160(c)(2) 30 days prior to
beginning construction. The Part 2 Registration Form must be submitted
within 60 days after the startup of production as defined in Sec.
49.152(d). The source must determine the potential for emissions within
30 days after startup of production. The combination of the Part 1 and
Part 2 Registration Form submittals satisfies the requirements in Sec.
49.160(c)(2). The forms are submitted instead of the application form
otherwise required in Sec. 49.160(c)(1)(iii). After being reviewed by
the permitting authority, completed registration forms will be
available online on the appropriate EPA Regional Office Web site.
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\20\ The registration forms are available at: https://www.epa.gov/tribal-air/tribal-minor-new-source-review or from the
EPA Regional Offices.
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For Sec. 49.160(c)(4), we are adding language indicating that
submitting a registration form does not relieve a source of the
requirement to comply with the FIP for the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector if the source or any physical or operational change at the
source would be subject to any minor or major NSR rule.
III. Background
A. Federal Indian Country Minor NSR Rule
1. What is the Federal Indian Country Minor NSR rule?
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).\21\ Within 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 requirements of section
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 fill a
regulatory gap and 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 final rules on July 1, 2011,\22\ and the FIP became
effective on August 30, 2011.
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\21\ ``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.
\22\ ``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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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 (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 Tribal Authority Rule,\23\ but they are not required
to do
[[Page 35951]]
so.\24\ In the absence of an approved tribal 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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\23\ To obtain eligibility to develop and implement an EPA-
approved plan, under the Tribal Authority Rule 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 go to:
``Indian Tribes: Air Quality Planning and Management,'' U.S.
Environmental Protection Agency, 63 FR 7254, February 12, 1998,
http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
\24\ 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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Beginning September 2, 2014, any new stationary sources, other than
true minor sources in the oil and natural gas sector, 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;
and (b) less than the amount that would qualify the source as a major
source or a major modification for purposes of the 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 of 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
nonattainment major NSR program(s).\25\
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\25\ 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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Among other things, the Federal Indian Country Minor NSR rule
created a framework for the EPA to streamline the issuance of pre-
construction permits to true minor sources by using general permits.
2. What is a true minor source and how does it differ from a synthetic
minor source?
The designation of a source for the FIP applicability is dependent
on the source's PTE. Per Sec. 52.21(b)(4), PTE means the maximum
capacity of a stationary source to emit a pollutant under its physical
and operational design. Any physical or operational limitation on the
capacity of the source to emit a pollutant, including air pollution
control equipment and restrictions on hours of operation or on the type
or amount of material combusted, stored, or processed, shall be treated
as part of its design if the limitation or the effect it would have on
emissions is federally enforceable. Secondary emissions do not count in
determining the potential to emit of a stationary source.
``True minor source,'' under the Federal Indian Country Minor NSR
rule means a source that emits, or has the potential to emit, regulated
NSR pollutants in amounts that are less than the major source
thresholds under either the PSD Program at Sec. 52.21, or the Federal
Major NSR Program for Nonattainment Areas in Indian Country at
Sec. Sec. 49.166-49.173, but equal to or greater than the minor NSR
thresholds in Sec. 49.153, without the need to take an enforceable
restriction to reduce its PTE to such levels. A source's PTE includes
fugitive emissions, to the extent that they are quantifiable, only if
the source belongs to one of the 28 source categories listed in part
51, appendix S, paragraph II.A.4(iii) or Sec. 52.21(b)(1)(iii) of 40
CFR, as applicable.
By contrast, ``synthetic minor source'' means a source that
otherwise has the potential to emit regulated NSR pollutants in amounts
that are at or above those thresholds for major sources, but that has
voluntarily taken a restriction so that its PTE is less than such
amounts. Such restrictions must be enforceable as a legal and practical
matter.
3. What is a general permit?
A general permit, for purposes of this action, is a permit document
that contains standardized requirements that multiple stationary
sources can use. The Federal Indian Country Minor NSR rule specifies
the process and requirements for using general permits to authorize
construction and modifications at minor sources as a streamlined
permitting approach. The EPA may issue a general permit for categories
of emissions units or stationary sources that are similar in nature,
have substantially similar emissions, and would be subject to the same
or substantially similar permit requirements.\26\ ``Similar in nature''
refers to size, processes, and operating conditions. The purpose of a
general permit is to protect air quality while simplifying the
permitting process for similar minor sources. General permits offer a
cost-effective means of issuing permits and provide a quicker and
simpler mechanism for permitting minor sources than the source-specific
permitting process.
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\26\ ``Review of New Sources and Modifications in Indian
Country,'' U.S. Environmental Protection Agency, 76 FR 38770, July
1, 2011, https://www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/2011-14981.pdf.
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The final Federal Indian Country Minor NSR rule contemplated
issuance of general permits by the EPA Regional Offices.\27\ While to
date the general permits that we have issued have been national in
scope, we will issue general permits on a different geographic scale as
appropriate.\28\
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\27\ If a tribe develops an EPA-approved implementation plan,
then under that plan it could also issue its own general permits.
\28\ We may in the future issue general permits on a smaller
geographic scale for a particular state or region of the country. In
fact, in the first batch of streamlined permits we issued in May
2015, we indicated that EPA Region 9 will be developing a general
permit or permit by rule for areas within California for gasoline
dispensing facilities. In addition, once the EPA issues a general
permit at the national level, Regional Offices serving as Reviewing
Authority do grant coverage under nationally-issued general permits
(as well as any general permits issued by that region for a smaller
geographic area). See ``General Permits and Permits by Rule for the
Federal Minor New Source Review Program in Indian Country for Five
Source Categories,'' U.S. Environmental Protection Agency, 80 FR
25068, May 1, 2015, http://www.gpo.gov/fdsys/pkg/FR-2015-05-01/pdf/FR-2015-05-01-FrontMatter.pdf.
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B. What is a FIP?
In our proposed rule of September 18, 2015,\29\ we discussed the
concept of a FIP, including our authority to issue FIPs, at great
length. There are no currently approved Tribal Implementation Plans
(TIPs) that require the issuance of pre-construction permits designed
to reduce emissions related to oil and natural gas facilities. As a
result, the Federal Indian Country Minor NSR rule serves this purpose.
We have concluded that the issuance of source-specific permits to
sources in the oil and natural gas production and natural gas
processing segments of the oil and natural gas sector has the potential
to overwhelm the system. We initially considered issuing a general
permit or permit by rule for these sources, but ultimately concluded
that the issuance of a FIP would be a more effective way of addressing
the situation for a few reasons. Both a general permit and a permit by
rule provide a more streamlined approach for authorizing construction
and modification of a source compared to site-specific permitting.
However, a general permit still requires a source to submit an
application and to obtain approval of coverage from the Reviewing
Authority before beginning construction, and would, thus, pose a
resource burden on reviewing authorities associated with processing the
potentially large volume of requests from true minor sources in
[[Page 35952]]
the oil and natural sector for coverage. So, from those standpoints a
FIP is preferable to a general permit. In comparing a permit by rule to
a FIP, the EPA prefers the FIP because it provides more certainty for
affected sources than the permit by rule approach and, as discussed
below, does not have any significant disadvantages as compared to the
permit by rule approach.\30\
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\29\ ``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, 81 FR 56554,
September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21025.pdf.
\30\ For a further discussion comparing these three options,
see: ``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, 81 FR 56554,
September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21025.pdf.
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We believe a FIP is the most appropriate way of implementing the
Federal Indian Country Minor NSR rule in that it protects air quality
while at the same time reducing the impact on the Reviewing Authority
arising from the issuance of source-specific permits for these sources.
(The FIP also reduces the burden on industry and other interested
stakeholders.) Therefore, in this final action, we have determined that
it is necessary or appropriate to exercise our discretionary authority
under sections 301(a) and 301(d)(4) of the CAA and Sec. 49.11(a) to
protect air quality by promulgating a FIP applicable to true minor
sources in the oil and natural gas production and natural gas
processing segments of the oil and natural gas sector in areas covered
by the Federal Indian Country Minor NSR rule where there is no EPA-
approved program in place that contains legally and practicably
enforceable requirements to control and reduce air emissions from such
sources.
C. Oil and Natural Gas Sector
In our proposed rule of September 18, 2015, we provided background
on the oil and natural gas sector. For a more complete description of
the sector, the reader should consult the Advance Notice of Proposed
Rulemaking (ANPR) we issued in June 2014.\31\
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\31\ ``Managing Emissions from Oil and Natural Gas Production in
Indian Country,'' U.S. Environmental Protection Agency, 79 FR 32502,
June 5, 2014, http://www.gpo.gov/fdsys/pkg/FR-2014-06-05/pdf/2014-12951.pdf.
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The oil and natural gas sector includes operations involved in the
extraction and production of oil and natural gas, as well as the
processing, transmission and distribution of natural gas. Specifically
for oil, the sector includes all operations from the well to the point
of custody transfer to an oil transmission pipeline or other means of
transportation to a petroleum refinery. For natural gas, the sector
includes all operations from the well to the final end user. The oil
and natural gas sector can generally be separated into four segments:
(1) Oil and natural gas production; (2) natural gas processing; (3)
natural gas transmission and storage; and (4) natural gas distribution.
D. EPA Actions Affecting Oil and Natural Gas Minor Sources in Areas
Covered by the Federal Indian Country Minor NSR Rule
1. Extension of Permitting Compliance and Registration Deadlines
On January 14, 2014, the EPA published a proposed rule, ``General
Permits and Permits by Rule for the Federal Minor New Source Review
Program in Indian Country,'' \32\ that included two proposed amendments
that affected true minor sources in the oil and natural gas sector. The
proposed amendments were: (1) The extension of the deadline by which
new true minor sources and minor modifications of existing true minor
sources in the oil and natural gas sector must receive minor NSR
permits prior to commencing construction, from September 2, 2014, to
March 2, 2016; and (2) an adjustment to the deadline by which existing
true minor sources in the oil and natural gas sector must register,
from September 2, 2014, to March 2, 2016. On June 16, 2014, the EPA
finalized those amendments as proposed.\33\ On September 18, 2015, the
EPA proposed to extend these dates further to October 3, 2016.\34\
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\32\ ``General Permits and Permits by Rule for the Federal Minor
New Source Review Program in Indian Country,'' U.S. Environmental
Protection Agency, 79 FR 2546, January 14, 2014, http://www.gpo.gov/fdsys/pkg/FR-2014-01-14/pdf/2013-30345.pdf.
\33\ For more information, see: ``Review of New Sources and
Modifications in Indian Country Amendments to the Registration and
Permitting Deadlines for True Minor Sources,'' U.S. Environmental
Protection Agency, 79 FR 34231, June 16, 2014, http://www.gpo.gov/fdsys/pkg/FR-2014-06-16/pdf/2014-14030.pdf.
\34\ ``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, 81 FR 56554,
September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21025.pdf.
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On February 24, 2016,\35\ we finalized three amendments to the
Federal Indian Country Minor NSR rule that we had proposed at the same
time as the FIP and the other amendments we are finalizing in this
action. The amendments are:
---------------------------------------------------------------------------
\35\ As noted above, we have already finalized amendments to
extend the permitting compliance and registration deadlines
(``Review of New Sources and Modifications in Indian Country:
Extension of Permitting and Registration Deadlines for True Minor
Sources Engaged in Oil and Natural Gas Production in Indian
Country,'' U.S. Environmental Protection Agency, 81 FR 9109,
February 24, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/2016-03623.pdf).
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First, we revised the deadline under Sec. 49.151(c)(1)(iii)(B) by
which new and modified true minor sources in the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector that are located in (or planning to locate in) reservation
areas of Indian country or other areas of Indian country for which
tribal jurisdiction has been demonstrated, must obtain a minor NSR
permit prior to beginning construction. We extended the deadline from
March 2, 2016, to October 3, 2016, for all true minor sources (both new
and modified true minor sources) \36\ within the oil and natural gas
sector located in Indian country.
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\36\ The preamble in the February 24, 2016 Federal Register
notice mistakenly indicates that the extension also applies to minor
modifications at major oil and natural gas sources; this was an
error. The rule language itself correctly indicates that the
extension applies to only new and modified true minor oil and
natural gas sources.
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Second, we revised Sec. 49.151(c)(1)(iii)(A) to conform the
registration deadline to the extended permitting deadline in Sec.
49.151(c)(1)(iii)(B).
Finally, we revised Sec. 49.160(c)(1)(ii) to conform the
registration deadline to the extended permitting deadline in Sec.
49.151(c)(1)(iii)(B).
2. Advance Notice of Proposed Rulemaking
On June 5, 2014, the EPA published an advance notice of proposed
rulemaking (ANPR).\37\ The purpose of the ANPR was to solicit broad
feedback on the most effective and efficient means of implementing the
Federal Minor NSR Program in Indian Country for sources in the
production segment of the oil and natural gas sector. In it, we
discussed alternatives to source-specific permits for new and modified
minor sources engaged in oil and natural gas production activities. The
EPA requested comments on the alternative approaches and other aspects
of managing air emissions from oil and natural gas sources in areas
covered by the Federal Indian Country Minor NSR rule.
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\37\ For more information, see: ``Managing Emissions from Oil
and Natural Gas Production in Indian Country,'' U.S. Environmental
Protection Agency, 79 FR 32502, June 5, 2014, http://www.gpo.gov/fdsys/pkg/FR-2014-06-05/pdf/2014-12951.pdf.
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[[Page 35953]]
3. Proposed FIP and Associated Amendments
On September 18, 2015, the EPA proposed a FIP \38\ that would apply
to new true minor sources and minor modifications at existing true
minor sources in the production segment of the oil and natural gas
sector that are locating or expanding areas covered by the Federal
Indian Country Minor NSR rule. We said that the FIP would satisfy the
minor source permitting requirement under the Federal Indian Country
Minor NSR rule. The proposed FIP proposed to require compliance with
emission limitations and other requirements from six federal emission
standards as written at the time of construction or modification for
compression ignition and spark ignition engines, compressors
(reciprocating and centrifugal), fuel storage tanks, fugitive emissions
from well sites and compressor stations, glycol dehydrators,
hydraulically fractured oil and natural gas well completions, pneumatic
controllers in production, pneumatic pumps, process heaters and storage
vessels.
---------------------------------------------------------------------------
\38\ ``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, 81 FR 56554,
September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21025.pdf.
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The EPA also proposed several amendments to the Federal Indian
Country Minor NSR rule, including adding new text regarding the purpose
of the program, revising the program overview provision, establishing a
compliance deadline of October 3, 2016 for all true minor sources (both
new and modified true minor sources) within the oil and natural gas
sector, revising certain provisions to incorporate compliance with the
FIP, revising the applicability provision to establish that sources are
required to comply with the FIP unless they opt to obtain a source-
specific permit or are otherwise required to obtain a source-specific
permit, and revising the source registration provision. Also, we
proposed to revise the definition of Indian country for purposes of the
rule to comport with a court decision that addressed the scope of the
EPA's jurisdiction to implement the Federal Indian Country Minor NSR
rule: ODEQ v. EPA. This court decision also affects the scope of the
EPA's jurisdiction under the Federal Nonattainment Major NSR Program in
Indian Country so we proposed changing the definition under the Federal
Indian Country Nonattainment Major NSR rule as well.
4. Other Oil and Natural Gas Actions
On September 18, 2015, the EPA proposed updates to the NSPS for the
oil and natural gas sector.\39\ The proposed FIP would adopt the
standards from six federal rules, including the oil and natural gas
NSPS. Changes to these rules would affect requirements in the FIP
because the proposed FIP would adopt all or parts of these six federal
emission standards, including future amendments. In addition, on
September 18, 2015, the EPA proposed an oil and natural gas source
determination rule.\40\ This action is also connected to this FIP as it
would affect how oil and natural gas sources are defined for the
purpose of major/minor source determinations.
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\39\ ``Oil and Natural Gas Sector: Emission Standards for New
and Modified Sources,'' U.S. Environmental Protection Agency, 80 FR
56593, September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21023.pdf.
\40\ ``Source Determination for Certain Emission Units in the
Oil and Natural Gas Sector,'' U.S. Environmental Protection Agency,
80 FR 56579, September 18, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21026.pdf.
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IV. Summary of Final Action, Comments and Responses
A. Overview of Changes to the FIP and Federal Indian Country Minor NSR
Rule
The purpose of this section is to provide an overview of key
aspects of our September 2015 proposed rule, our final action, and
relevant comments and our responses. The EPA received numerous
thoughtful and helpful comments on the proposal. After careful
consideration of this input, we are finalizing the FIP with some
changes. Overall, here are what we consider to be the most significant
changes we are making in this final rule. These changes are discussed
in greater detail below (except as noted):
(1) Amending the Federal Indian Country Minor NSR rule in several
ways, including:
a. Amending Sec. Sec. 49.152 and 49.160 of the Federal Indian
Country Minor NSR rule to provide for a two-part source registration
process, including adding a definition to Sec. 49.152(d) for ``Startup
of production'' that was not proposed but which is necessary to
accommodate the modified registration process;
b. Amending Sec. Sec. 49.151 and 49.160 of the Federal Indian
Country Minor NSR rule to clarify how these provisions relate to the
FIP, including adjusting references to the oil and natural gas sector
so that the provisions being amended function properly with respect to
that sector and the final FIP and to reflect the expanded source scope
of the final FIP;
c. Amending Sec. Sec. 49.151 and 49.152 (and Sec. Sec. 49.166 and
49.167) to update the applicability of the Federal Indian Country Minor
NSR rule (and Federal Indian Country Nonattainment Major NSR rule) to
comport with a court decision that addressed the scope of the EPA's
jurisdiction to implement the Federal Indian Country Minor NSR rule:
ODEQ v. EPA; and
d. Amending Sec. 49.160 to clarify that, after October 3, 2016,
sources engaged in oil and natural gas activity not subject to the FIP
will use their source-specific permit applications for registration
(instead of a registration form);
(2) Modifying the draft source registration form that we provided
for comment at proposal to:
a. Provide for a two-part source registration process, including
making clear that the Part 1 Registration Form is due 30 days prior to
beginning construction and that the Part 2 Registration Form is due
within 60 days after the startup of production (as defined in Sec.
49.152(d)); \41\
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\41\ We also make it clear in the Part 2 Registration Form that
sources must determine their potential emissions within 30 days
after startup of production.
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b. Clarify what emissions-related information is required for
submittal as part of the Part 2 Form registration process;
c. Clarify that fuel usage and production rates should be provided
on an annual basis;
d. Removed the request for emissions and other information for
hazardous air pollutants, which are not regulated by the Federal Indian
Country Minor NSR rule;
e. Provide a Confidential Business Information disclaimer;
f. Clarify how sources should provide documentation that they are
meeting the threatened and endangered species and historic properties
criteria under Sec. 49.104 along with the registration form; and
g. Condense and reorganize the request for emissions information to
make it clearer to the source;
(3) Providing guidance that we intend to potentially apply this
national FIP's requirements as appropriate to nonattainment areas where
the EPA has established a separate, area-specific FIP;
(4) Changing the FIP as proposed in several areas:
a. Modifying Sec. 49.101 to change ``oil and natural gas
production facility'' to ``oil and natural gas source'' and also
clearly linking the modified wording to the reworded definition of oil
and natural gas source in Sec. 49.102;
[[Page 35954]]
b. Replacing the definition of oil and natural gas production
facility in Sec. 49.102 with oil and natural gas source, which also
includes natural gas processing, but excludes natural gas transmission
and distribution;
c. Expanding the scope of the FIP by revising Sec. Sec. 49.101 and
49.102 to cover non-major gas processing plants and the definition of
oil and natural gas source;
d. Adding a subparagraph to Sec. 49.101 to make it clear that the
FIP does not apply to minor modifications at major sources;
e. Rewording Sec. 49.104 to specify the information that is
acceptable to document that a source has addressed threatened and
endangered species and historic properties;
f. Expanding Sec. 49.104 to add the process the Reviewing
Authority will use to determine whether the screening procedures
provided to the EPA have been satisfactorily completed to address
threatened and endangered species and historic properties;
g. Expanding Sec. 49.105 to add two federal standards to the FIP's
requirements:
i. 40 CFR part 63, subpart ZZZZ--NESHAP for Stationary
Reciprocating Internal Combustion Engines; and
ii. 40 CFR part 60, subpart KKKK--Standards of Performance for New
Stationary Combustion Turbines;
h. Adjusting exclusions from this FIP for the following two
standards under Sec. 49.105 to reflect the expansion of the scope of
the FIP to natural gas processing plants (not discussed below--instead,
see Section II.B.):
i. 40 CFR part 60, subpart IIII--Standards of Performance for
Stationary Compression Ignition Internal Combustion Engines;
ii. 40 CFR part 60, subpart OOOOa--Standards of Performance for
Crude Oil and Natural Gas Facilities for which Construction,
Modification, or Reconstruction Commenced after September 18, 2015; and
iii. 40 CFR part 63, subpart HH--NESHAP from Oil and Natural Gas
Production Facilities; and
i. Clarifying under Sec. 49.105 that the FIP applies not just to
true minor sources but to minor modifications at true minor sources as
well.
B. Proposed Amendments to the Federal Indian Country Minor NSR Rule
1. Proposed Rule
The EPA proposed amendments to the Federal Indian Country Minor NSR
rule, including adding new text regarding the purpose of the program,
revising the program overview provision, establishing a compliance
deadline of October 3, 2016 for all true minor sources (both new and
modified true minor sources) within the oil and natural gas sector,
revising certain provisions to incorporate compliance with the FIP,
revising the applicability provision to establish that sources are
required to comply with the FIP unless they opt to obtain a source-
specific permit or are otherwise required to obtain a source-specific
permit, and revising the source registration provision. Also, we
proposed to revise the definition of Indian country for purposes of the
rule to comport with a court decision that addressed the scope of the
EPA's jurisdiction to implement the Federal Indian Country Minor NSR
rule: ODEQ v. EPA. This court decision also affects the scope of the
EPA's jurisdiction under the Federal Major NSR Program in Indian
Country, so we proposed to change the definition under the Federal
Indian Country Nonattainment Major NSR rule as well.
2. Final Action
As mentioned in Section III.D., we have already finalized three
amendments to extend the permitting compliance and registration
deadlines for true minor sources in the oil and natural gas sector.\42\
In today's action, we are finalizing the remainder of the amendments as
described in Section II.D., as proposed, with five exceptions:
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\42\ ``Review of New Sources and Modifications in Indian
Country: Extension of Permitting and Registration Deadlines for True
Minor Sources Engaged in Oil and Natural Gas Production in Indian
Country,'' U.S. Environmental Protection Agency, 81 FR 9109,
February 24, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/2016-03623.pdf.
---------------------------------------------------------------------------
First, we are amending Sec. Sec. 49.151, 49.153 and 49.160 of the
Federal Indian Country Minor NSR rule to clarify how these provisions
relate to the FIP, including adjusting references to the oil and
natural gas sector so that the provisions being amended function
properly with respect to that sector and the final FIP and to reflect
the expanded source scope of the final FIP.
Second, we are revising Sec. 49.160(c)(1)(iii) and (iv) as
proposed by adding further revisions to provide for a modified, two-
part registration process under the Federal Indian Country Minor NSR
rule for sources covered by this FIP. We are also modifying the oil and
natural gas registration form as made available at proposal by
splitting the form into two forms to provide for the two-part source
registration process, requiring emissions information from sources
after production is started. The changes are described above in Section
IV.A.
Third, associated with that change, we are adding a definition to
Sec. 49.152(d) for ``Startup of production'' that was not proposed but
which is necessary to accommodate the modified registration process.
Fourth, we are amending Sec. 49.160(c)(1)(iii) to clarify that,
after October 3, 2016, sources engaged in oil and natural gas activity
not subject to the FIP will use their source-specific permit
applications for registration (instead of a registration form).
Finally, we are amending Sec. Sec. 49.151(c)(1) and 49.152(d) (and
Sec. Sec. 49.166(c)(1) and 49.167) to update the applicability of the
Federal Indian Country Minor NSR rule and Federal Indian Country
Nonattainment Major NSR rule, respectively, to comport with a court
decision that addressed the scope of the EPA's jurisdiction to
implement the Federal Indian Country Minor NSR rule: ODEQ v. EPA.
3. Comments and Responses
The following discussion contains comments on the proposed
amendments to the Federal Indian Minor NSR rule and our responses. The
comments and responses are also addressed in Section 1.0 of the
Response to Comment (RTC) Document.
(a) Pre-Construction Permit Requirements
Comment #1: Five commenters expressed concern about the proposed
pre-construction requirements and the difficulty in determining PTE
before a well starts production due to the unpredictable nature of well
development and productivity. Two commenters stated the requirement is
burdensome and would lead to inaccurate data due to the unpredictable
nature of oil and natural gas production.
Several commenters thought that pre-construction estimated
emissions would be of limited value to the EPA and would create
confusion for the public once released or used in modeling the effects
of oil and natural gas production. One commenter noted that the pre-
construction requirements limit the usefulness of the proposed FIP
because owners/operators will not have definitive source-specific
information before production begins.
One commenter requested that if the EPA were to retain the pre-
construction requirements, then the EPA should provide a mechanism for
revising emissions estimates after actual emissions are known.
Several commenters pointed to rules or state permitting programs
that require post-construction information to be submitted, rather than
pre-construction.
[[Page 35955]]
For example, the Federal Indian Country Minor NSR rule requires
operators to submit registration forms within 90 days of initial
production. Several commenters pointed to state requirements, which
acknowledge the unique challenges of permitting well production sites.
Wyoming allows operation prior to permitting as long as the operator
satisfies certain emission control requirements. In Colorado, emissions
information is not required to be submitted until after drilling,
workovers, completions, and testing are completed. North Dakota also
has owners/operators submit the oil and natural gas well registration
form within 90 days of completion of a well. Commenters believe that
providing information after the well begins production will conserve
EPA resources and provide the EPA with more accurate information, as
well as align permitting processes on Indian lands with state
permitting processes on adjacent lands.
As an alternative to pre-construction information, two commenters
suggested that the EPA allow owners/operators to provide actual
emissions data based on the first 30 days of production, due to the EPA
90 days after startup, similar to 40 CFR part 60, subpart OOOO.
As another alternative to providing pre-construction information,
one commenter suggested a two-part approach:
Part 1: 30 days prior to the anticipated first date of production,
submit owner/operator information, well location description,
production equipment anticipated to be installed, and the anticipated
first date of production.
Part 2: Within 60 days after first date of production, supply
information on emissions and production rates as part of a notification
process. The commenter requested 60 days as that date is used as part
of the mineral rights royalty notification processes under the
Department of Interior.
The same commenter submitted revisions to the draft registration
form that we made available with the September 2015 proposed rule. The
commenter asked the EPA to remove actual emissions data and to require
operators to submit projected allowable emissions from the equipment,
based on the initial production. The commenter stated that if the EPA
needs to quantify actual emissions, the information will only be
accurate through an emission inventory, versus using data submitted
with the permit application, due to the actual emissions decreasing
over time.
Response #1: The EPA has revised the Federal Indian Country Minor
NSR rule and the registration form to incorporate a two-step
registration process for oil and natural gas true minor sources
locating or expanding in Indian country, as suggested by commenters.
Generally, we prefer to receive registration forms complete with source
and emissions information prior to construction, as we proposed and as
required in Sec. 49.160 of the Federal Indian Country Minor NSR rule
for other source categories. However, we recognize the unique nature of
the oil and natural gas industry and believe in this instance a two-
part registration process is warranted.
The Part 1 Registration Form will be due 30 days before the source
begins construction. The Part 2 Registration Form will be due within 60
days after the ``startup of production,'' in accordance with the
subpart OOOOa definition of startup of production. (For the Part 2
Registration Form, we are adding the definition for ``Startup of
production'' to Sec. 49.152(d), which points directly to the term as
defined under 40 CFR part 60, subpart OOOOa.) Sources must determine
the potential for emissions within 30 days after startup of production,
information which is required as part of the Part 2 Registration Form.
The EPA has selected 60 days as the submittal date for the Part 2
Registration Form--the date requested by the commenter--as that
timeframe will allow sufficent time for sources to assemble the
emissions information required as part of the the Part 2 Registration
Form and to submit it to the EPA.
The control requirements from the eight NSPS and NESHAP standards
in this FIP will apply during production (the six standards included in
the original proposal and two standards being added in the final rule).
The owner/operator must account for emissions from startup of
production as required in the Part 2 Registration Form submission. We
disagree with the commenter about the type of emissions information
that must be submitted with the registration form. Pursuant to Sec.
49.160 of the Federal Indian Country Minor NSR rule, sources are
required to submit allowable and actual emissions, not just allowable,
as requested by the commenter. The owner/operator should calculate an
estimate of the actual annual emissions using estimated operating
hours, production rates, in-place control equipment, and types of
materials processed, stored, or combusted during the upcoming
consecutive 12 months.
The source, as documented by an owners/operators should use the
definition in EPA's rulemaking on ``Source Determination for Certain
Emission Units in the Oil and Natural Gas Sector'' \43\ in defining
each source on its registration form.
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\43\ ``Source Determination for Certain Emission Units in the
Oil and Natural Gas Sector,'' signed May 12, 2016, http://www.epa.gov/airquality/oilandgas/actions/html.
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(b) The Definition of Indian Country in Sec. 49.152
Comment #2: Several commenters expressed concern about the EPA's
proposed definition change for the term Indian country as used in the
rule. Two commenters disagreed with the fourth paragraph added to the
definition of Indian country and noted that the EPA should not be
vested with power to make determinations or demonstrations about tribal
jurisdiction and that any such demonstration of jurisdiction should be
left to the sovereign whose jurisdiction is being asserted. The
commenters assert that although the EPA has indicated that this should
only impact trust lands in Oklahoma, tribal allotments would also be
impacted by the change in definition. One commenter recommended that
the definition of Indian country include Indian reservation lands for
which a TIP approved by the EPA pursuant to 40 CFR part 51 is not in
effect, and over which an Indian tribe has demonstrated that it has
jurisdiction.
One commenter stated that the EPA should be cautious of how the
rule appears. By restating the definition of Indian country in the
rule, it appears that the EPA is defining the term. Of course, the EPA
cannot change the definition of Indian country through the proposed
rule. The term Indian country was defined by Congress in statute. The
EPA's regulations cannot change or modify this definition. The
commenter suggested that the EPA should make it clear that Indian
country is already statutorily defined and simply cross reference the
relevant statute.
The commenter further states that the proposed and final rules
should not state that the EPA is ``revising the definition of Indian
Country.'' The commenter states that the EPA is doing no such thing. As
a result of ODEQ v. EPA, the EPA is required to consider how it will
apply the proposed rule in certain portions of Indian country, but the
EPA is not revising the definition of Indian country. In other words,
ODEQ v. EPA is not about the definition of Indian country, but rather
the process the EPA is using to apply the proposed rule to certain
parts of Indian country. The commenter recommends that the EPA remove
all references to revised definitions of Indian country from the
proposed rule. Rather than purporting to
[[Page 35956]]
revise the definition of Indian country, the commenter suggests that
the EPA include a new section discussing the applicability of the
proposed rule.
Response #2: Regarding the commenters who expressed concern about
the EPA's proposed changes to the sections of the rule that define
Indian country, the EPA acknowledges the potential for confusion given
that Indian country is a statutorily defined term at 18 U.S.C. 1151. We
note that the EPA did not intend to, nor could we, change or in any way
affect the statutory definition at 18 U.S.C. 1151 or the manner in
which that statute is interpreted and applied for other purposes.
Rather, we intended simply to address a 2014 decision of the D.C.
Circuit (ODEQ v. EPA) that addressed the scope within Indian country of
the EPA's authority to administer the Federal Indian Country Minor NSR
rule--and, thus, the FIP in this action--and the Federal Indian Country
Nonattainment Major NSR rule.\44\ In that decision, the court
invalidated the rules as applied to non-reservation areas of Indian
country, unless the EPA or a tribe demonstrates that a tribe has
jurisdiciton over such a non-reservation area. The court did not
disturb application of the rules to Indian reservations. Our intent
was, thus, not to alter the applicable definition of Indian country,
but instead to address the scope of applicability of the rules within
Indian country in light of the D.C. Circuit decision. To avoid
potential confusion, we have altered the manner in which we are
addressing this court ruling.
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\44\ Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d
185 (D.C. Cir. 2014).
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In the final rule, we have left the Indian country definitions
largely intact and simply provided cross-references within the
definitional sections of both rules--Sec. Sec. 49.152 and 49.167--
stating that the geographic scope of the rules' applicability will be
as specified in the program overview sections of both rules--Sec. Sec.
49.151 and 49.166. We have then addressed the limitation imposed by the
court ruling (i.e., that the rules will only apply in non-reservation
areas of Indian country where there is a demonstration by a tribe or
the EPA acting on behalf of a tribe of tribal jurisdiction over such
area) in the program overview sections, which are more appropriate
provisions in which to address this issue. These changes do not alter
the substance of the revisions the EPA had proposed to address the ODEQ
v. EPA ruling. Instead, they simply move the needed revisions to more
appropriate locations in the rules, and, thus, avoid confusion about
the applicable definition of Indian country as a general matter.
Further, the EPA notes that the regulatory revisions finalized today to
address the ODEQ v. EPA decision apply solely to the Federal Indian
Country Minor NSR rule--and, thus, the FIP in today's action--and the
Federal Indian Country Nonattainment Major NSR rule. They are not
intended to apply to any other matter outside the scope of these rules.
In addition, while the EPA acknowledges the commenter's statement
that an Indian tribe's jurisdiction should not need to be demonstrated
to exist, the EPA notes that, consistent with the ODEQ v. EPA decision,
a demonstration of tribal jurisdiction (either by the EPA or by an
Indian tribe) would need to be made to support application of the
Federal Indian Country Minor NSR rule in non-reservation areas of
Indian country.
The EPA notes that the distinction between reservations and other
areas that may be under an Indian tribe's jurisdiction (i.e., non-
reservation areas of Indian country) is derived from a CAA tribal-
related provision (CAA section 301(d)(2)(B)). This provision includes a
delegation of authority from Congress to eligible Indian tribes over
their reservations, but expressly distinguishes other areas within a
tribe's jurisdiction. For this reason, tribes seeking to administer
their own CAA-regulatory programs would need to demonstrate their
jurisdiction over any non-reservation area included in their
application.\45\ By virtue of the ODEQ v. EPA decision, such a
demonstration of tribal jurisdiction must also be made (by a tribe or
by the EPA) to support application of the Federal Indian Country Minor
NSR rule in such non-reservation areas of Indian country.
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\45\ For more information go to: ``Indian Tribes: Air Quality
Planning and Management,'' U.S. Environmental Protection Agency, 63
FR 7254, February 12, 1998, http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
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Comment #3: Further, concerning the definition of Indian country,
one commenter disagreed with the EPA's distinction between ``on-
reservation'' and ``off-reservation'' Indian country and contended that
tribes exercise jurisdiction over these lands through existing tribal
sovereignty and in accordance with numerous federal programs that
affirm tribal authorities and tribal self-determination over these
lands and areas. The commenter contends that the distinction was not
intended in the CAA and is not consistent with how tribes exercise
authority over their lands. Nonetheless, the commenter generally
supports the fourth paragraph added to the definition of Indian
country, stating that the rule would apply to ``all Indian reservation
lands where no EPA-approved program is in place and all other areas of
Indian country where no EPA-approved program is in place and over which
an Indian tribe, or the EPA, has demonstrated that a tribe has
jurisdiction.'' However, the commenter does not believe that a tribe's
jurisdiction has to be ``demonstrated'' to exist.
Response #3: Regarding the comment on the EPA's distinction between
``on-reservation'' and ``off-reservation'' Indian country, the EPA
disagrees with the suggested changes. The EPA's revisions reflect the
holding in ODEQ v. EPA. The decision acknowledges that either a tribe
or the EPA can make such a demonstration of tribal jurisdiction over a
non-reservation area of Indian country. Although the EPA is not
typically called upon to assess tribal jurisdiction in the context of
implementing a federal rule, it is appropriate for the EPA to make such
determinations where required. The EPA has experience reviewing tribal
jurisdiction in other contexts, most notably where tribes apply to
administer regulatory programs under the EPA's statutes. In light of
the ODEQ v. EPA decision, such jurisdictional assessments are also
relevant for implementing federal permitting under the Federal Indian
Country Minor NSR rule in non-reservation areas of Indian country.
Comment #4: One commenter acknowledged the EPA's intent in the
proposed rulemaking to protect the reservation airsheds, while allowing
for streamlined permitting of minor oil and natural gas sources, and
requested that the EPA achieve this goal by developing and implementing
the rule in a manner that promotes tribal sovereignty, authority, self-
determination and a tribe's ability to develop resources. The commenter
emphasized that the EPA should develop the proposed rule in a manner
that recognizes that Indian lands are not public lands.
Another commenter noted that the EPA appears in the proposed rule
to understand the concern for the oil and natural gas industry to be on
tribal lands without tribal authorities having the ability to properly
regulate the industry on their own. The commenter encouraged the EPA to
recognize this potential situation while maintaining the tribe's choice
on who to do business with, as well as retaining the tribe's relative
autonomy to create their own pollution plans. The commenter
acknowledged that the EPA's intentions
[[Page 35957]]
in the proposed rule would likely provide better protections than any
TIP.
Response #4: The EPA acknowledges that Indian country lands are not
public lands and has solicited tribal feedback on the development of a
streamlined permitting process that allows for tribes to develop
resources on their lands. In doing so, the EPA seeks to protect air
quality in Indian country, while also recognizing the importance of oil
and natural gas activity as an important source of revenue for tribes,
and has developed the FIP accordingly. Moreover, the development of
this FIP does not preclude tribes from requesting to assist the EPA
with administration of the FIP through a delegation agreement or from
developing TIPs, which could include different or additional pollution
control plans that tribes feel are needed to preserve air quality given
the unique characteristics of their lands. No changes will be made in
response to this comment.
C. Implementation-Related Issues
1. Proposed Rule
In the proposed rule, we discussed the effect of the proposed FIP
on other Indian Country FIPs.
The FIP proposed in September 2015 was intended to fulfill the
requirements of the Federal Indian Country Minor NSR rule to address
the air quality impacts of new and modified true minor sources and to
impose appropriate air pollution control requirements that protect the
NAAQS, while providing an alternative to obtaining source-specific pre-
construction approval through the NSR pre-construction permitting
process. The proposed FIP was not intended to replace any other FIPs
promulgated under the CAA for oil and natural gas sector sources in
areas covered by the Federal Indian Country Minor NSR rule. Under the
proposed FIP, an oil and natural gas source located in areas covered by
the Federal Indian Country Minor NSR rule that is subject to another
CAA FIP would have to continue to comply with that FIP and also have to
comply with the proposed FIP. Generally, in cases where emission
sources are already subject to a CAA FIP with more stringent
requirements than those established for equivalent emission sources
under the proposed FIP, those sources would be subject to the
requirements of both FIPs, but those more stringent requirements
supersede the requirements in this proposed FIP and compliance with the
more stringent requirements would constitute compliance with both FIPs
relative to those particular requirements. Conversely, if requirements
for certain emission sources in the proposed FIP are more stringent
than requirements for equivalent emission sources in another applicable
CAA FIP, then those sources would be subject to the requirements of
both FIPs, but the requirements in the proposed FIP supersede the
requirements for equivalent emission sources in the other FIP and
compliance with the more stringent requirements in the FIP would
constitute compliance with the requirements of both FIPs relative to
those particular requirements. In the case of the FIP for Oil and
Natural Gas Well Production Facilities on the Fort Berthold Indian
Reservation (FBIR FIP) \46\ at Sec. Sec. 49.4161-49.4168,\47\ we defer
to less stringent requirements in other federal CAA rules to avoid
duplicative requirements. The FBIR FIP provides an exception to the
general concept that the more stringent set of requirements govern.
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\46\ In the proposed September 2015 FIP, we referred to ``other
FIPs'' rather than just the FBIR FIP. Upon further review, we
realize that the FBIR FIP is the only case of a FIP that illustrates
an exception to the general concept.
\47\ ``Approval and Promulgation of Federal Implementation Plan
for Oil and Natural Gas Well Production Facilities; Fort Berthold
Indian Reservation (Mandan, Hidatsa, and Arikara Nation), North
Dakota,'' U.S. Environmental Protection Agency, 78 FR 17836, March
22, 2013, https://www.gpo.gov/fdsys/pkg/FR-2013-03-22/pdf/2013-05666.pdf.
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In the September 2015 proposed FIP, we specifically addressed how
it related to the FBIR FIP. The FBIR FIP is not a permitting program
and does not exempt facilities from any federal CAA permitting
requirements, which includes compliance with this FIP. Similarly, the
proposed oil and natural gas FIP would not exempt facilities from
complying with the FBIR FIP. The EPA recognizes that the VOC control
requirements under the FBIR FIP are in some instances more stringent
than those in the proposed FIP. For example, in the proposed FIP, we
indicated that a new or modified oil and natural gas well production
facility that is subject to the FBIR FIP--and also subject to the
proposed FIP--would still need to comply with the FBIR FIP for casing
head natural gas emissions and heater treater produced natural gas
emissions. Requirements for these units were not contained in the
proposed FIP.
2. Final Action
In this final action we are not changing our proposal in terms of
how this FIP relates to other Indian country FIPs. However, there were
several comments in this area that we are responding to below that
relate to the proposal.
3. Comments and Responses
The following discussion contains comments on issues related to the
FIP and our responses. The comments and responses are also addressed in
Section 2.0 of the RTC Document.
Comment #5: One commenter requested that the EPA clarify how
numerical VOC emission limitations will be applied through compliance
with 40 CFR part 63, subpart HH, when the subpart has numerous
compliance options that often do not contain specific numerical
emission limitations. The commenter noted that the proposed FIP would
create enforceable VOC emission reductions for glycol dehydrators
through the requirements of 40 CFR part 63, subpart HH, using HAPs as a
surrogate for VOCs.
Response #5: The FIP does not impose a separate VOC limit for
glycol dehydration units that are subject to 40 CFR part 63, subpart HH
(i.e., independently of the FIP, the source will have to comply with
the HAP control requirements, which also effectively control VOC and
may or may not involve numerical emissions limitations). While the EPA
recognizes that 40 CFR part 63, subpart HH, specifies several different
control requirements depending on several factors (e.g., major/area
source status of the facility, actual natural gas throughput of the
dehydrators, urban/rural location), any dehydrators subject to those
standards will satisfy compliance with the FIP for those units by fully
complying with the MACT standard. We have not made any changes in
response to this comment.
Comment #6: One commenter stated that the proposed oil and natural
gas FIP falls short in meeting several core objectives for permitting
oil and natural gas sector facilities. The commenter stated that the
foundation of the proposed FIP is still based on site-specific reviews,
which by definition will inhibit its streamlining capabilities, and
that this poses an obstacle to permitting. This could place future oil
and natural gas development in Indian country at a disadvantage
compared to more streamlined options available under state
jurisdictions.
Response #6: The EPA disagrees that the foundation of the proposed
FIP is based on source-specific permit reviews. While source-specific
permits remain an option available to sources that do not wish to
comply with the FIP, apart from addressing threatened and endangered
species and historic properties, those sources that do wish to comply
with the FIP need only register in accordance with the provisions of
Sec. 49.160(c)(1)(iv).
[[Page 35958]]
This streamlined permitting mechanism allows for sources to begin
construction 30 days after submittal of the Part 1 registration
information. We have not made any changes in response to this comment.
Comment #7: One commenter requested that the EPA clarify how the
proposed FIP will provide practical enforceability when several of the
six rules included in the proposed FIP, such as 40 CFR part 63, subpart
HH, do not contain practically enforceable requirements. The commenter
noted that, because several of the standards do not contain practically
enforceable requirements, sources that wish to restrict their PTE will
be forced to obtain a source-specific permit. The commenter stated that
the proposed FIP would fail to achieve the objective of providing
sources a streamlined approach for obtaining legal and practically
enforceable emission limitations.
Response #7: A source has to be a true minor source to use the FIP.
The FIP is not intended to provide a mechanism for establishing
synthetic minor sources. We have not made any changes in response to
this comment.
Comment #8: One commenter (a state agency) noted that North Dakota
regulations for natural gas capture have been enforced on the Fort
Berthold Indian Reservation under multiple tax and regulatory
agreements between the state and tribes. The commenter stated that the
proposed rule will increase the number and complexity of conflicts with
North Dakota regulations and the existing negotiated agreements. One
commenter stated that the proposed rule could have significant impacts
on their ability to administer their oil and natural gas regulatory
program, and recommended that the proposed rule recognize and give
deference to existing state and tribal agreements for natural gas
permitting and regulation.
Response #8: The FIP adopted through this final action only applies
to sources locating in Indian country and does not impose any
requirements on sources located on state lands. The EPA also notes that
the State of North Dakota has not been approved by the EPA to
administer any program under the federal CAA on the Fort Berthold
Indian Reservation. The EPA notes that there are no new requirements
included as part of the FIP, only those rules already applicable to oil
and natural gas sources under existing federal NSPS and NESHAP rules
are included. We have not made any changes in response to this comment.
Comment #9: One commenter stated that the Federal Indian Country
Minor NSR rule and the FIP should provide industry more flexible
compliance options that are cost effective without compromising
significant emissions reductions. The commenter suggested that the
Federal Indian Country Minor NSR rule and the FIP should include an
early action program, noting that, considering the uncertainty
surrounding ozone standard designations in the Uinta Basin, an early
action program would remove the risk for industry investments in
emission reductions by ensuring appropriate credit for those
investments. The commenter also suggested that the Federal Indian
Country Minor NSR rule and the FIP should include an option for
portfolio-wide emissions compliance, noting that a portfolio-wide
approach would provide many operators the needed flexibility to more
efficiently and cost-effectively achieve system-wide emission
reductions that meet regulatory goals.
Response #9: Ozone Advance is the early action program that the EPA
is offering to promote local efforts aimed at reducing ozone.\48\ The
program, which began in 2012, is available to states, local
governments, and tribes that are interested in working proactively and
collaboratively with the EPA to select and implement measures and
programs that may reduce ozone air quality levels in attainment areas.
Other stakeholders, such as industry, are encouraged to become actively
involved in these efforts. Ozone Advance will continue to be available
in conjunction with the Federal Indian Country Minor NSR rule, this FIP
and any future, final FIPs developed for specific areas. As
appropriate, such FIPs could consider portfolio-wide options allowing
operators to reduce their emissions across entire tribal areas. We have
not made any changes in response to this comment at this time.
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\48\ For more information, go to: www.epa.gov/advance.
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Concerning ``credit'', the EPA cannot pre-approve State
Implementation Plan (SIP)/TIP ``credit'' for emission reductions in
areas that are not the subject of a nonattainment designation. However,
early actions to improve air quality can both serve to prevent areas
from becoming nonattainment and better position an area to comply with
the requirements associated with an eventual nonattainment designation.
For example, early emission reduction actions could potentially receive
``credit'' in future SIPs/TIPs if an area is eventually designated
nonattainment with a Moderate or higher classification, either in terms
of reflecting a lower baseline from which additional reductions are
needed to meet reasonable further progress goals or, if they occur
after the baseline year, as a measure that shows progress toward
attainment.
If emission reductions occur after the baseline year, the area may
take credit for those reductions subject to CAA requirements, such as
demonstrating that the reductions are surplus, quantifiable,
enforceable, and permanent. The state or tribe would also need to meet
any other relevant requirement in CAA section 110 and/or section 172,
and if the measure is voluntary, the state or tribe would need to make
an enforceable commitment to ensure that the estimated emission
reductions are achieved. Credit earned in this manner means that fewer
additional emission reductions will be needed to meet reasonable
further progress goals and to demonstrate attainment, thereby bringing
the finish line of attainment with the ozone NAAQS closer.
D. Requirements Relating to Threatened or Endangered Species and
Historic Properties
1. Proposed Rule
In the proposed rule, we proposed requirements for true minor oil
and natural gas sources relating to threatened and endangered species
and historic properties. The Endangered Species Act (ESA) requires
federal agencies to ensure, in consultation with the U.S. Fish and
Wildlife Service and/or the National Marine Fisheries Service (the
Services), that any action they authorize, fund, or carry out will not
likely jeopardize the continued existence of any listed threatened and
endangered species, or destroy or adversely modify the designated
critical habitat of such species. The National Historic Preservation
Act (NHPA) requires federal agencies to take into account the effects
of their undertakings on historic properties--i.e., properties that are
either listed on, or eligible for listing on, the National Register of
Historic Places--and to provide the Advisory Council on Historic
Preservation (the Council) a reasonable opportunity to comment on such
undertakings.
In developing the proposed FIP, EPA considered issues regarding
listed species and historic properties and included provisions designed
to ensure appropriate review of potential impacts on these protected
resources. Although the individual coverage of each source that would
operate under the FIP would not constitute a separate triggering
[[Page 35959]]
action for ESA or NHPA purposes, we believe that the proposed FIP's
procedures relating to listed threatened and endangered species and
historic properties provide an appropriate site-specific means of
addressing issues regarding potential impacts on those resources in
connection with issuance of the FIP and, thus, in connection with
sources that could be covered under the FIP. We provided two options,
as follows, for sources to meet the proposed FIP's requirements
regarding these resources:
(1) For sources for which a prior ESA and/or NHPA assessment has
been completed, in the proposed FIP we indicated that, where Federal
Land Managers (FLMs) have concluded ESA and/or NHPA compliance as part
of the process in which an oil and natural gas operator makes an
Application to Drill (APD) in connection with a particular source--
whether as part of the FLM's NEPA review or otherwise--the source would
be able to rely on that prior review for compliance with the proposed
FIP's listed species (if prior ESA compliance has occurred) and
historic properties (if prior NHPA compliance has occurred)
requirements. No further assessment of impacts on these resources would
be required by the proposed FIP as any such assessment would be
duplicative of the prior work conducted by the FLM(s). We would require
that documentation of completion of the APD process be provided before
the owner/operator begins construction under the FIP.
(2) For sources for which no prior ESA and/or NHPA assessment has
been completed, in the proposed FIP we indicated that those facilities
must first complete screening procedures relevant to the particular
resource that have not previously been reviewed before the owner/
operator can begin construction under the proposed FIP. These screening
procedures are similar to those currently in place for existing general
permits and permits by rule in areas covered by the Federal Indian
Country Minor NSR rule that must be completed before the owner/operator
can begin construction under those general permits and permits by
rule.\49\ We stated that the review of the screening procedures would
be similar to our procedure for general permits and permits by rule,
for the proposed FIP, where once an owner/operator completes the
screening procedures,\50\ they would submit documentation to the EPA
Regional Office and receive written verification of completion before
beginning construction. As we explained in the development of both the
general permits and permits by rule for the ``General Permits and
Permits by Rule for the Federal Minor New Source Review Program in
Indian Country,'' \51\ to ensure listed species and critical habitats
and historic properties are protected, we developed a framework for
those permitting mechanisms requiring the source owner/operator to
identify and assess potential effects on protected resources before
obtaining coverage. Requiring this assessment aids in identifying any
concerns related to potential impacts on listed species/critical
habitat or historic properties early in the process when the greatest
opportunities to mitigate or avoid any impacts--including changes to
the facility's location or footprint--are available. The EPA believes
that requiring a similar process in the air quality permit by rule, the
general air quality permit, and the proposed FIP will streamline the
process for all concerned: the applicants, the EPA, the tribes, and any
resource experts such as the Services or historic preservation
officers.
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\49\ These procedures are available for sources potentially
subject to this proposed FIP in a document entitled: ``Procedures to
Address Threatened and Endangered Species and Historic Properties
for the 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,'' https://www.epa.gov/tribal-air/tribal-minor-new-source-review.
\50\ Ibid.
\51\ ``General Permits and Permits by Rule for the Federal Minor
New Source Review Program in Indian Country,'' 79 FR 2546, January
14, 2014, http://www.gpo.gov/fdsys/pkg/FR-2014-01-14/pdf/2013-30345.pdf.
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2. Final Action
In the final FIP, we have not changed the overall approach for
requiring sources to address threatened and endangered species and
historic properties. We are continuing to provide two options for
sources to address threatened and endangered species and historic
properties.\52\ However, we are modifying Sec. 49.104 of the proposed
FIP to further specify what information will be accepted to document
that a source has addressed threatened and endangered species and
historic properties through actions by another federal agency. We are
also clarifying that for sources providing documentation to the effect
that they satisfy the criteria under Sec. 49.104(a)(1) through a prior
assessment conducted by another federal agency, that they can submit
the documentation with the Part 1 Registration Form.
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\52\ Note that the two options for addressing threatened and
endangered species and historic properties in the final FIP have
also been made available to other source categories for which we
have issued general permits and permits by rule, albeit in a
different manner. Rather than prescribe the options in regulation,
we have made the options available as part of the procedures
information we have provided as attachments to the Request for
Coverage Forms and the Notification of Coverage Forms for the
general permits and permits by rule we have issued, respectively.
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With respect to specific documentation requirements, the final FIP
requires the owner/operator to submit to the EPA Regional Office (and
to the tribe where the source is located/locating) documentation
demonstrating that prior ESA and/or NHPA compliance has been completed
by another federal agency in connection with the specific oil and
natural gas activity operated under the FIP. The appropriate documents
would have to clearly show that the other Federal agency had met its
statutory obligations under both the ESA and NHPA. A simple reference
to a Record of Decision (ROD) or other final decision document will not
be acceptable. An example of acceptable documentation would be a letter
from the Fish and Wildlife Service (FWS) for ESA or a historic
preservation office for NHPA stating they agree with the assessment for
the subject project and that the relevant sections of those statutes
have been satisfied by the agency conducting the review of the proposed
oil and natural gas activity. In addition, if a biological assessment
and/or biological opinion have been prepared as part of the assessment
under the ESA, then copies of those documents shall also be provided.
The owner/operator must be in compliance with all measures required as
part of that prior ESA and/or NHPA process.
With respect to the process for sources using the screening
procedures provided by the EPA for threatened and endangered species
and historic properties, we indicated in the proposal that we would
follow criteria similar to that used for general permits and permits by
rule where the completed screening procedures are submitted to the EPA
Regional office for review and written approval is obtained before
beginning construction. Therefore, we are paralleling the procedures
used for Permits by Rule in Sec. 49.104(a)(2) of the FIP to address
submittal and review of completed screening procedures. Within 30 days
of receipt of a source's documentation, the Reviewing Authority must
provide a determination by letter to the source that: (1) The
documentation satisfactorily demonstrates completion of the threatened
and endangered species and historic property screening procedures; or
(2) the documentation is not adequate and additional information is
needed. If the initial submittal is deficient, the
[[Page 35960]]
Reviewing Authority will note any such deficiencies and may offer
further direction on completing the screening procedures. Once the
source has addressed the noted deficiencies, it must submit revised
screening procedure documentation for review. An additional 15-day
review notification period will be used for the Reviewing Authority to
determine whether the screening procedures have been satisfied.
Provided that they have, the Reviewing Authority will then send the
source a letter indicating approval. The source must obtain a letter
from the Reviewing Authority indicating that the source has adequately
completed the processes regarding threatened and endangered species and
historic properties before it can begin construction under the FIP.
This process of source documentation submittal and the EPA's
confirmation that it has satisfactorily completed the procedures must
occur prior to the source's submittal of its Part 1 Registration Form
pursuant to Sec. 49.160(c)(1)(iv).
3. Comments and Responses
The following discussion contains comments on requirements relating
to threatened or endangered species and historic properties and our
responses. The comments and responses are also addressed in Section 2.0
of the RTC Document.
Comment #10: Two commenters expressed concern about the EPA's
authority to impose requirements relating to threatened or endangered
species and historic properties in the proposed national FIP. These
commenters stated that where there is no federal nexus, the EPA has no
jurisdiction to require ESA or NHPA consultations. These commenters
also noted that the EPA is not a surface land management agency and
does not have jurisdiction on state and private lands to require such
consultations where a federal nexus does not exist. Another commenter
claimed that imposition of these ESA and NHPA requirements as
conditions of using the FIP is unlawful and unreasonable. The commenter
stated that it is unlawful because the ESA and NHPA are triggered only
when a federal action is taken, and that as EPA acknowledges in the
preamble, the use of the FIP by an affected source does not require any
federal action. Therefore, the commenter believes that there is no need
or justification for imposing ESA or NHPA requirements when an affected
source avails itself of the FIP.
Response #10: We disagree with the commenters' statement that the
EPA lacks authority to require assessments of potential impacts on
these resources as sources are covered under the FIP. Consistent with
the EPA's authority under the CAA, the EPA has built the screening
procedures into the FIP as an adequate and appropriate means of
addressing potential impacts on these resources. Given the intended
scope of the FIP, it would be very difficult, if not impossible, for
the EPA to evaluate such potential impacts in all areas where the FIP
might apply. As a result, the EPA has concluded that the only way to
address potential impacts on these resources in conjunction with the
FIP, which is intended to provide a streamlined mechanism for complying
with the Federal Indian Country Minor NSR rule, is to require the
owners/operators to do it. Although the EPA is not a land management
agency, the EPA is the federal agency promulgating the FIP, which will
cover sources irrespective of whether they locate on federal or non-
federal land. The EPA understands that completing the screening
procedures will impose some burden on covered sources. However, the EPA
has attempted to streamline these procedures to the extent practicable
while ensuring appropriate consideration of the resources. We have not
made any changes to the ESA/NHPA procedures as a result of these
comments.
Comment #11: Four commenters expressed concern that the FIP's
requirements for additional analysis addressing listed species and
historic properties where a prior assessment by another federal agency
has not been completed will lead to lengthy permitting delays. One
commenter stated that the added secondary layer of listed species and
historic property approval proposed by the EPA will add delay and
expense, while duplicating existing protections for species and
cultural resources. One commenter stated that the inclusion of site-
specific reviews for listed species and historic properties contradicts
the EPA's statement in the preamble that the purpose of the FIP is to
provide a ``streamlined'' approach to permitting minor oil and natural
gas sources on Indian lands, which would be accomplished in part by
imposing ``unambiguous'' requirements on affected sources. The
commenter asserted that case-specific listed species and historic
property review is the antithesis of an unambiguous process.
Response #11: The EPA has promulgated the FIP to streamline the NSR
permitting process to allow sources to avoid potential delays
associated with individual source permitting. In connection with
issuance of the FIP--which provides the relevant CAA authorization for
sources to construct--the EPA has also added the threatened and
endangered species and historic property screening procedures as an
appropriate means of addressing potential impacts on these resources as
sources are covered under the FIP. As indicated below, the EPA does not
view coverage of individual sources under the FIP as separate ESA or
NHPA triggering events. However, given the intended scope of the FIP,
it would be very difficult, if not impossible, for the EPA to evaluate
the potential impacts on the relevant resources in all areas where the
FIP might apply. As a result, the EPA has concluded that the only way
to address these impacts in conjunction with issuing this FIP, which is
intended to provide a streamlined mechanism for complying with the
Federal Indian Country Minor NSR rule, is to require owners/operators
to do it. The EPA has, however, provided significant streamlining
opportunities in this process by providing an avenue for covered
sources to rely on prior listed species/historic property assessments
done in connection with other federal agency permits or authorizations,
and the EPA anticipates that many of the covered sources will have
undergone such prior assessments and, thus, will require no further
analysis. If analysis is required in those few cases where no prior
assessment is available, the EPA has provided straightforward
procedures for sources to complete their own assessments.\53\ No
changes were made as a result of this comment.
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\53\ To find these procedures, go to: https://www.epa.gov/tribal-air/tribal-minor-new-source-review.
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Comment #12: Two commenters stated that, while federal actions
trigger ESA consultation and NHPA review, compliance with the FIP
itself is not a federal action triggering ESA and NHPA review. One of
these commenters noted that the EPA acknowledged in the preamble that
the use of the FIP by an affected source does not require any federal
action. The other commenter stated that many of the new sources and
modifications undertaken in reliance on this FIP will have already been
authorized by another federal action that complies with ESA and NHPA,
and that compliance with the FIP by these new sources and modifications
is not the federal action. The commenter added that for projects that
have not undergone some earlier or concurrent federal authorization
process, compliance with the FIP is not the federal action. The
commenter further
[[Page 35961]]
indicated that NESHAPs and NSPS present an analogous situation--sources
complying with NESHAPs and NSPS across the country do not trigger ESA
and NHPA reviews.
Another commenter noted that the approach the EPA is taking with
the FIP is unique as compared to any other directly applicable
substantive CAA rule. For example, EPA recently proposed changes to 40
CFR part 60, subpart OOOO, which also applies to affected sources that
would be covered by the FIP (40 CFR part 60, subpart OOOO, is included
in the proposed FIP). The commenter noted that there is no mention of
ESA or NHPA in the 40 CFR part 60, subpart OOOOa, proposal. In the
commenter's view, like the FIP, 40 CFR part 60, subpart OOOO (and the
proposed 40 CFR part 60, subpart OOOOa), effectively authorize the
construction of new sources and modification of existing sources. And,
like the FIP, 40 CFR part 60, subpart OOOO, applies directly to
affected sources without any need or requirement for case-specific
authorization or decision-making. The commenter asserts that the
difference in approach between the proposed FIP and other directly
applicable CAA substantive rules is unexplained and unexplainable and
that there is no justification for imposing ESA and NHPA requirements
under the FIP.
Response #12: The EPA agrees that each separate coverage under the
FIP does not constitute an action that triggers ESA/NHPA. However, the
EPA disagrees that the listed species and historic property screening
procedures included in the FIP impose ESA or NHPA compliance
requirements on covered sources. These screening procedures are
intended to be an appropriate means of addressing potential impacts on
the relevant resources in connection with the EPA's issuance of the
FIP, which provides CAA authorization for sources to construct in lieu
of individual or other permitting under the Federal Indian Country
Minor NSR rule.
The screening procedures are requirements of the FIP--not of the
ESA or NHPA--and are consistent with the EPA's authority under the CAA.
These requirements are appropriate for the FIP, which, as noted above,
provides CAA authorization for sources to construct without the need
for separate NSR permitting. By contrast, NSPSs and NESHAPs impose
emission reduction requirements on sources, but are not separate
authorizations for construction. We have not made any changes as a
result of these comments.
Comment #13: One commenter expressed concern about the potential
burdens associated with the listed species and historic property
compliance provisions and urged the EPA to clarify when an affected
facility is permitted to rely on a prior NEPA analysis to fulfill these
requirements. This commenter asked the EPA to clarify that the prior
NEPA review need not be conducted simultaneously with the construction
or modification of the affected facility, referring to cases where the
BIA or BLM may have completed an applicable NEPA review well in advance
of the specific construction activity. This commenter also requested
that the EPA consider whether programmatic environmental impact
statements (EISs) can satisfy the relevant requirements, noting that
programmatic EISs can address both ESA and NHPA issues on a
reservation-by-reservation basis in a manner that addresses both the
historic resources and endangered species that may be present in a
given area. This commenter stated that allowing individual sources to
rely on prior ESA and NHPA analyses in a programmatic EIS can provide
further streamlining benefits that will reduce the costs of
implementation, while ensuring that environmental goals are met.
Response #13: The EPA has added regulatory text to the final rule
to clarify the documentation that needs to be submitted with the Part 1
Registration Form, what the documentation must show, and the process by
which it must be submitted. The documentation must demonstrate that,
for the project site operating under the FIP, another Federal agency
(e.g., BLM or BIA) had met its applicable statutory obligations under
the ESA and NHPA in connection with its involvement with the project.
An example of acceptable documentation would be a letter from the FWS
(for ESA) or a historic preservation office (for NHPA) stating that the
project has been reviewed, and the relevant statutes have been
satisfied by the agency conducting the review, that any impacts of the
project have been assessed, and any appropriate mitigation included.
Such letters may, for instance, include a concurrence from FWS that a
project will have no likely adverse effects on listed species or
critical habitat.
Comment #14: One commenter requested that the EPA provide a
procedure for reviewing the ESA and NHPA analyses conducted by other
agencies (e.g., BIA and BLM) to ensure that it is adequate and
sufficient. The commenter stated that the EPA must ensure that
emissions from a proposed project do not adversely impact threatened or
endangered species or their habitat. The commenter added that the many
sensitive cultural sites and areas of special cultural and spiritual
significance to tribes and their members must receive the full
protection they deserve under the law.
Response #14: The EPA appreciates the commenter's concern that
listed species and historic properties, including properties of
specific interest to Indian tribes, receive appropriate consideration
and protection. The EPA believes as a general matter that the agencies
with relevant resource expertise \54\ (e.g., the U.S. Fish and Wildlife
Service and Tribal and State Historic Preservation Officers) are best
qualified to ensure that the considerations the commenter is raising
related to threatened and endangered species and cultural resources are
addressed. The EPA has thus included appropriate screening procedures
in the FIP to ensure that a complete assessment of covered projects
occurs, either as part of a separate federal agency's prior compliance
with the ESA and NHPA in connection with a source, or during a source's
screening review under the FIP if no such prior assessment is
available. In either scenario, the expert resource agencies will be
appropriately involved in the consideration of any impacts on the
resources and in the development of any relevant mitigation measures.
The EPA will then ensure that sources have successfully completed the
assessment process, that the documentation is available, and that the
sources are in compliance with the FIP's requirements, including
requirements with adequate measures to address air quality issues.
---------------------------------------------------------------------------
\54\ These experts possess the knowledge--and, under their
statutes and regulations, the authority and responsibility--
necessary to assess impacts on protected resources and to judge the
adequacy of any mitigation measures needed to protect those
resources.
---------------------------------------------------------------------------
By way of example, the EPA envisions the process could work as
follows: an oil and natural gas owner/operator submits a request to
drill to BLM or BIA; BLM/BIA initiate a comprehensive review of the
project's potential impacts on the protected resources and engage in
any required consultations with the expert resource agencies prior to
approving new oil and natural gas activity; these consultations and
assessments address direct and indirect effects of the action on the
protected resources; the process concludes with relevant concurrences
or other final decisions regarding the project's impacts and
identification of any mitigation measures; and the source submits
required information to the EPA
[[Page 35962]]
under the FIP to demonstrate compliance with the ESA and NHPA as part
of the prior review. The EPA notes that this process may occur as part
of a review by the other federal agency under NEPA, in which case the
EPA may be involved as one of the reviewing agencies of the NEPA
assessment. In light of the degree of involvement of the land
management federal agencies in project oversight and the expertise of
the resource agencies, the EPA anticipates that this process will
result in appropriate consideration of any impacts on the protected
resources and that additional involvement by the EPA in that review
would not provide meaningful additional input. The EPA has revised the
regulatory text to specify what documentation relating to another
Federal agency's compliance with ESA and NHPA is acceptable to
demonstrate that these requirements are met.
E. Rationale for the FIP
1. Proposed Rule
In the section of the preamble on the rationale for the proposed
FIP, we addressed four topics:
Choice of a FIP as an alternative to source-specific
permits, general permits and permits by rule;
How we select which equipment to include in the proposed
FIP;
Why we are excluding existing sources from the proposed
oil and natural gas FIP; and
Why we proposed to extend the permitting deadline for oil
and natural gas true minor sources in areas covered by the Federal
Indian Country Minor NSR rule?
We are addressing the first three topics in Sections IV. E., H. and
J. below, respectively. The fourth topic concerning the extension has
already been addressed in a separate final action.\55\
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\55\ ``Review of New Sources and Modifications in Indian
Country: Extension of Permitting and Registration Deadlines for True
Minor Sources Engaged in Oil and Natural Gas Production in Indian
Country,'' U.S. Environmental Protection Agency, 81 FR 9109,
February 24, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/2016-03623.pdf.
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Generally, with respect to the rationale for the FIP, we indicated
that our proposal represented a proper exercise of our authority under
Sec. 49.11(a) of the Tribal Authority Rule which states that the EPA
shall promulgate without unreasonable delay such FIP provisions as are
necessary or appropriate to protect air quality, consistent with the
provisions of sections 301(a) and 301(d)(4), if a tribe does not submit
a TIP meeting the completeness criteria of 40 CFR part 51, appendix V,
or does not receive EPA approval of a submitted tribal implementation
plan (see Sec. 49.11(a)). We indicated that the proposed FIP would
apply to new and modified true minor sources that are located or
expanding in the referenced areas of Indian country designated as
attainment, unclassifiable or attainment/unclassifiable. It would not
apply to new and modified true minor sources that are located or
expanding in referenced areas of Indian country designated
nonattainment. Thus, underlying the proposal was the EPA's belief that
the FIP as proposed would be protective of air quality in areas of
Indian country designated attainment, attainment/unclassifiable and
unclassifiable but not areas designated nonattainment. Sources locating
or expanding in areas designated as nonattainment would be required to
obtain source-specific permits pursuant to the Federal Indian Country
minor NSR rule, thereby allowing the EPA to include any requirements
needed to provide air quality protection beyond that provided by the
FIP. In addition, the EPA retains the authority under the FIP to
require sources locating or expanding in areas designated attainment,
attainment/unclassifiable and unclassifiable to obtain source-specific
permits if it determines that this is necessary to protect air quality
in a particular area. The FIP as proposed included a comprehensive set
of standards, including the requirements under 40 CFR part 60, subpart
OOOOa, which has undergone revision and reflects the latest in oil and
natural gas control measures.
2. Final Action
The EPA continues to believe that this final FIP that relies on
eight federal standards for its requirements will be protective of air
quality in attainment, attainment/unclassifiable and unclassifiable
areas, provided the EPA retains the ability to require source-specific
permits and/or area-specific FIPs where needed to protect air quality
in specific areas. Below are several comments on this issue and our
responses.
3. Comments and Responses
The following discussion contains comments on issues related to the
rationale for the proposed FIP and our responses. The comments and
responses are also addressed in Section 3.0 of the RTC Document.
Comment #15: One commenter stated that the EPA has provided no
assurance that the regulations included in the FIP will adequately
address air quality problems in Indian country and ensure compliance
with all applicable standards, including the NAAQS, PSD Program, and
the visibility protection program. The commenter noted that, although
the EPA proposes a FIP to streamline the permitting process, the
proposed FIP does not achieve the goals of the case-by-case permitting
the EPA established in the Federal Indian Country Minor NSR rule--
namely adequate protection of public health and the environment. The
proposed FIP would allow minor oil and natural gas sources to forego
pre-construction review and permitting altogether and instead simply
self-certify that they will comply with the six regulations that
already apply within Indian country. The EPA has provided no analysis
of whether these six regulations will adequately address the air
quality problems in Indian country or ensure compliance with the NAAQS,
PSD Program, and the visibility protection program.
Response #15: The EPA believes that the eight regulations included
in the final rule represent a robust set of control measures that are
adequate to protect air quality in Indian country in attainment,
attainment/unclassifiable and unclassifiable areas. The EPA can require
source-specific permits where needed to further protect air quality in
these areas.
In addition, the Federal Indian Country Minor NSR rule does not
require an air quality analysis in all instances for minor source
permits even in the context of a source-specific permit. While Sec.
49.154(c)(1)(i) indicates that we will consider ``[l]ocal air quality''
in determining whether to issue a source-specific permit, it does not
require an air quality analysis and in fact Sec. 49.154(d) establishes
specific circumstances in which the Reviewing Authority can require the
owner/operator to conduct an air quality impacts analysis (AQIA). Air
quality factors are just one consideration with a source-specific
permit. We have not made any changes as a result of this comment.
Comment #16: One commenter stated that the EPA did not conduct any
control technology review, air quality impacts analysis, or dispersion
modeling for the proposed FIP.
Response #16: The EPA's analysis and review consisted of
establishing a set of requirements that we believe are sufficient to
protect the NAAQS and PSD increments in attainment, attainment/
unclassifiable and unclassifiable areas with the caveat that the EPA
can require source-specific permits where needed to further protect
[[Page 35963]]
air quality in a given area. Moreover, all eight regulations included
in this FIP are based on the EPA's analyses of available technologies.
The FIP requires compliance with the most current version of these
regulations. So, the control requirements in this FIP will stay up to
date, as these rules are based on the most current technologies.
Finally, as noted above, the Federal Indian Country Minor NSR rule does
not require an air quality analysis in all instances when a permit is
issued even with a source-specific permit. No changes were made as a
result of this comment.
Comment #17: One commenter expressed concern about the lack of any
requirements in the proposed FIP for air quality monitoring and
modeling, and recommended that the proposed FIP include requirements to
improve air quality monitoring and modeling within Indian country. This
commenter noted that the air quality in many areas of Indian country
with oil and natural gas development exceeds federal public health
standards for ozone and particulates. The commenter expressed concern
that, without adequate monitoring, the EPA cannot ensure that it is
protecting public health from the emissions associated with oil and
natural gas development. This commenter stated that the most efficient
and expedient method of providing such a monitoring network is
requiring operators to install and operate monitors. The commenter
noted that the EPA has authority under CAA section 114 to require
operators to install and operate ambient air quality monitors.
Response #17: With respect to monitoring, the EPA works closely
with tribes, as well as state and local partners, to implement and
maintain a national ambient air monitoring program. In many cases,
ambient networks include more monitors than are required by minimum
requirements in the EPA's monitoring regulations. The EPA Regional
Administrators have the authority to require additional monitoring in a
variety of situations; such authority is specifically noted throughout
the language in Appendix D to 40 CFR part 58, Network Design Criteria
for Ambient Air Quality Monitoring. Accordingly, the EPA believes that
the current authority to require monitoring above minimum requirements
is sufficient to support this final rule and the need to employ
additional air quality monitoring in areas of Indian country where the
air quality may not be fully characterized. As the commenter points
out, the EPA has the authority under section 114 of the CAA to require
air quality monitoring if it determines that this is necessary in a
particular areas. For these reasons, we do not believe that including
monitoring requirements in this rule is necessary. Additionally, the
EPA is exploring alternative sensor technology that can be used to
compliment traditional compliance-based monitoring based on Federal
Reference Method or Federal Equivalent Method monitoring equipment. The
EPA anticipates that alternative sensor technology may be used in the
future as a screening tool to determine if longer term monitoring with
more specialized equipment is needed.
Regarding modeling, as noted above, the Federal Indian Country
Minor NSR rule does not require an air quality analysis (and the
modeling that would accompany it) in all instances when a permit is
issued even with a source-specific permit. With respect to the final
FIP, we do not believe that modeling is necessary; rather, we believe
that the suite of eight federal regulations that constitute the FIP's
set of control requirements are sufficent to protect air quality in
areas of Indian country designated attainment, attainment/
unclassifiable and unclassifiable. We have not made any changes in
response to this comment.
With respect to air quality in areas of Indian country with oil and
natural gas development, currently we are not seeing widespread air
quality problems. Based on air quality data for 2012-2014,\56\ (outside
of Oklahoma) there are only two counties that meet three criteria: Have
Indian country present; have design values (DVs) above the level of the
current ozone NAAQS (70 parts per billion [ppb]); and have oil and
natural gas activity. The two counties that meet these three criteria
are in Utah and are: Duchesne and Uintah Counties.\57\ The majority of
the land area in both of these counties is on the Uintah and Ouray
Reservation. For the Uintah and Ouray Reservation, we have sufficient
concerns about the air quality impacts from existing sources that we
plan to propose a separate reservation-specific FIP.
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\56\ The EPA will not designate areas as nonattainment based on
these data, but likely based on 2014-2016 data.
\57\ Supporting information can be found in: Docket ID No. EPA-
HQ-OAR-2014-0606.
---------------------------------------------------------------------------
For areas designated nonattainment for NAAQS (2008 ozone NAAQS,
2006 and 2012 PM2.5 NAAQS), based on air quality DVs for
2012-2014, there are not any areas that meet three criteria: Have
Indian country present; have DVs above the level of the NAAQS; and have
oil and natural gas activity.\58\
---------------------------------------------------------------------------
\58\ Ibid.
---------------------------------------------------------------------------
Comment #18: One commenter expressed concern about the lack of
enforcement requirements in the FIP. The commenter noted that the
proposed FIP provides few, if any, enforcement tools, and requested
that the EPA clarify, add, and expand enforcement requirements in the
final rule. The commenter encouraged the EPA to implement Next
Generation Compliance techniques (such as self-certification and
photographic verification, per 40 CFR part 60, subpart OOOO) in the
final rule, and recommended that the EPA should also robustly pursue
standard enforcement procedures in Indian country.
Response #18: Since the EPA is relying on the monitoring,
recordkeeping and reporting requirements in the eight rules underlying
this final FIP to be comprehensive in ensuring compliance, we do not
feel that additional, separate compliance measures are needed. The
requirements in the eight rules are independently enforceable under
those rules as well as being enforceable under the FIP. An owner/
operator is responsible for correctly permitting its sources. If it is
later determined that the source is not complying with the emission
limitations and standards prescibed in the eight rules as required by
the FIP, the EPA can take enforcement action to bring a source into
compliance. The EPA can also enforce major source requirements in
situations where it is determined that a source emitted or has the
potential to emit pollutants in major source amounts. We have not made
any changes as a result of this comment.
F. The FIP as an Alternative to Source-Specific Permits, General
Permits and Permits by Rule
1. Proposed Rule
With respect to source-specific permits, we proposed that owners/
operators of new and modified true minor oil and natural gas sources
that meet all of the following criteria must comply with the
requirements contained in Sec. Sec. 49.101 through 49.105 of the
proposed FIP, unless the owner/operator opts-out of the FIP and instead
obtains a source-specific permit per proposed Sec. 49.101(b)(2) and
(3):
The facility is an oil and natural gas production facility
as defined in proposed Sec. 49.102;
The oil and natural gas production facility is located in
areas covered by the Federal Indian Country Minor NSR rule as defined
in Sec. 49.152(d) as proposed to be amended in the action;
[[Page 35964]]
The oil and natural gas production facility is a new true
minor source or a minor modification of an existing true minor source
as determined under Sec. 49.153;
The oil and natural gas production facility begins
construction or modification on or after October 3, 2016, the proposed
extended permitting deadline date; and
The oil and natural gas production facility is not located
in a designated nonattainment area (the proposed FIP would only apply
to true minor sources in the oil and natural gas sector locating or
expanding in areas designated as attainment, attainment/unclassifiable
or unclassifiable).
Under the proposed FIP, sources covered by the Federal Indian Country
Minor NSR rule that do not meet all of the criteria listed above are
not eligible to use the FIP and must, therefore, obtain a source-
specific permit prior to beginning construction, on or after October 3,
2016.
If a source owner/operator does not want to comply with the FIP,
they have the option to apply for a source-specific permit instead to
meet the obligation under Sec. 49.151(c)(1)(iii)(B) of the Federal
Indian Country Minor NSR rule to obtain a permit prior to commencing
construction of a new true minor source or modification of an existing
true minor source. As part of the FIP, we proposed specific rule
language in Sec. 49.101(b)(2) to allow true minor sources proposing to
construct on or after the proposed, extended deadline date of October
3, 2016, to opt-out of the default FIP if preferred by the owner/
operator. We proposed that an owner/operator of a source otherwise
subject to the proposed FIP can opt out and seek a source-specific
permit under Sec. 49.151(c)(1)(iii).
We also proposed that the EPA, or other Reviewing Authority, may
require owners/operators to obtain a source-specific permit in lieu of
complying with the proposed FIP to ensure protection of the NAAQS.
Under Sec. 49.101(b)(3), we proposed to specify that the Reviewing
Authority may require an owner/operator of a source proposing to
construct in certain areas of Indian country on or after October 3,
2016, to apply for a source-specific permit for a new true minor source
or minor modification of an existing true minor source where necessary
to protect air quality. In particular, the Reviewing Authority may
determine that the source is not sufficiently controlled under the
proposed FIP to protect the NAAQS in the area of the proposed project
(e.g., if the measured DV for the area is close to or above the level
of the NAAQS). In that circumstance, the Reviewing Authority can
require the minor source to obtain a source-specific permit. The agency
recommends that at the time of registration, the owner/operator of new
and modified sources contact the Reviewing Authority about the air
quality status of the area, and the need to obtain a source-specific
permit.
Concerning the selection of a FIP as an alternative to source-
specific permits, general permits and permits by rule, in the ANPR, we
committed to developing an alternative to source-specific permits
primarily to avoid delays in new construction due to the burden of
processing hundreds of true minor source permits in a timely manner. A
FIP provides a regulatory tool that protects air quality, streamlines
implementation and compliance assurance, and meets the EPA's obligation
to permit minor NSR sources. The alternatives--source-specific permits,
general permits and permits by rule--do not satisfy all of these
concerns, which we explain in the preamble of the September 18, 2015
action proposing the FIP.
Unlike NSR general permits and permits by rule, which cannot be
used to address existing sources, a FIP could extend to existing
sources; this is a key distinction between general permits and permits
by rule versus a FIP. However, the proposal did not contain
requirements for existing sources. We indicated that our plan is to
address existing sources, to the extent necessary, in the context of
area- or reservation-specific FIPs designed to address areas or
reservations with air quality issues (including nonattainment or
possible nonattainment areas), as they arise, that are associated with
oil and natural gas activities. Such FIP(s) would need to address, as
necessary, requirements for existing sources, as well as additional
requirements beyond those in this proposal for new and modified
sources.
2. Final Action
After carefully considering the comments received, we have decided
to retain the FIP as the streamlined mechanism for permitting true
minor sources in the oil and natural gas production and natural gas
processing segments of the oil and natural gas sector in Indian
country. We believe that our initial reasoning laid out in our proposal
is still sound in light of comments received. We also believe that we
need to retain the provision in the FIP as proposed with respect to
source-specific permits. In the final FIP under Sec. 49.101(b)(2),
owners/operators of facilities that meet the criteria specified for
eligibility in the FIP can choose to obtain a source-specific permit in
lieu of complying with the FIP as specified in 40 CFR 49.155 before
beginning construction; any such source would not be required to comply
with the requirements of Sec. Sec. 49.101 to 49.105. In addition,
under Sec. 49.101(b)(3) of the final FIP, with advance notice owners/
operators of facilities that meet the criteria specified for
eligibility in the FIP can be required by the Reviewing Authority to
obtain a source-specific permit to ensure protection of the NAAQS as
specified in 40 CFR 49.155 before beginning construction; any such
source would not be required to comply with Sec. Sec. 49.101 to
49.105.
3. Comments and Responses
The following discussion contains comments on issues related to the
choice of FIP as an alternative to source-specific permits, general
permits and permits by rule and our responses. The comments and
responses are also addressed in Section 4.0 of the RTC Document.
Comment #19: One commenter proposed that a general permit or permit
by rule would be the best permitting approach for Indian country and
could allow for legally and practically enforceable limits. They
further suggested that ambient air quality impact modeling could be
used to develop the general permit or permit by rule to ensure
protection of the NAAQS.
Response #19: In the ANPR, the EPA committed to developing an
alternative to source-specific permits primarily to avoid delays in new
construction due to our inability to process potentially thousands of
true minor oil and natural gas source permits in an acceptable
timeframe. Comments received on the ANPR and on the proposed FIP were
generally supportive of a FIP approach, which we are finalizing. As
indicated above, we continue to believe that the FIP approach can best
protect air quality in attainment, attainment/unclassifiable and
unclassifiable areas, while providing streamlined permitting. We do not
believe that modeling is necessary to ensure air quality protection in
attainment, attainment/unclassifiable and unclassifiable areas given
the comprehensive nature of the requirements in the eight standards
underlying this FIP.
Comment #20: Several commenters expressed concern that a FIP would
not provide an opportunity for comment about a specific facility's
coverage under a FIP. In particular, commenters noted that there may be
concerns specific to particular sites that are not addressed within the
existing FIP. One commenter
[[Page 35965]]
noted that under a FIP, tribes and the public are only provided a one-
time opportunity to provide feedback on the proposed rule and would not
be provided the opportunity to comment on individual sources proposed
in their tribal area.
Response #20: The EPA agrees with the importance of providing
opportunity for comment on the FIP. The EPA held three public hearings
across the country \59\ to solicit comments on the proposed FIP and
also extended the public comment period on the proposed FIP by 21 days
from November 14, 2015 until December 4, 2015. If the EPA requires a
source-specific permit or develops an area-specific FIP, there will be
additional opportunity for public comment on those specific permitting
actions at that time.
---------------------------------------------------------------------------
\59\ The dates and locations of the hearings were as follows:
Denver, Colorado, September 23, 2015; Dallas, Texas, September 23,
2015; and Pittsburgh, Pennsylvania, September 29, 2015. ``Source
Determination for Certain Emission Units in the Oil and Natural Gas
Sector; Oil and Natural Gas Sector: Emission Standards for New and
Modified Sources; and 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 51991, August 27, 2015, https://www.gpo.gov/fdsys/pkg/FR-2015-08-27/pdf/2015-21255.pdf.
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In addition, new and modified sources under the FIP will have to
register and provide source information and emissions. Each completed
registration will be added to the EPA Regional Office Web sites.\60\ If
a citizen has information that a particular source may not be complying
with the FIP, or that compliance with the FIP may not be sufficient due
to air quality concerns in a particular area, the information could be
brought to the EPA's attention.
---------------------------------------------------------------------------
\60\ For example, for EPA Region 8, the following Web site will
be used to provide the completed registration forms: https://www.epa.gov/caa-permitting/tribal-nsr-permitting-region-8.
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Comment #21: One commenter requested a commitment from the EPA to
provide funding to tribes for the development of TIPs to regulate minor
oil and natural gas sources specific to areas under their jurisdiction,
including the potential future regulation of existing minor sources.
One commenter expressed an interest in developing a TIP. The commenter
noted that the EPA promulgated the ``Tribal Authority Rule'' in 1998 to
provide more detailed criteria and procedures for tribes to be treated
as states under the CAA if they seek CAA program approval, and that
tribes are authorized to develop a comprehensive TIP and to seek full
authority to monitor and enforce the NAAQS within their reservation.
The commenter expressed interest in exploring the possibility of
working toward a TIP so that it may one day assume primacy over certain
regulatory functions and gradually expand its authority.
Response #21: The EPA supports tribes developing their own air
programs and, as desired, TIPs. The EPA has historically provided
funding and other technical support towards this goal, and we will
continue to seek tribal air funding and support. In particular, we
anticipate proactively supporting development of TIPs, especially in
areas with air quality DVs above the NAAQS.
Comment #22: Several commenters expressed concern about provisions
in the proposed FIP allowing the EPA the discretion to require source-
specific permitting to ``ensure attainment of the NAAQS'' on a case-by-
case basis. This might particularly affect areas in Indian country
where design values are close to the current ozone NAAQS of 70 ppb. In
addition, commenters expressed concern that given the 30-day notice
provided for under the FIP, the notification that a facility has been
denied coverage under the FIP and will be required to obtain a source-
specific permit might be received only at the last minute, causing
financial burden on operators that have already initiated procurement
of construction materials and labor. The commenters explained that the
EPA should provide the criteria by which they will require source-
specific permits, and should consider including modeling demonstrations
as part of source-specific permitting. One commenter objected to the
broad and unrestricted manner under which the FIP allows the EPA to
require a source to obtain a source-specific permit, and requested that
the EPA provide more definitive language on what critieria it would use
to disallow a source to construct under the FIP and to require a
source-specific permit.
Response #22: The EPA continues to believe that this FIP will be
protective of air quality in attainment, attainment/unclassifiable and
unclassifiable areas of Indian country, provided we retain the ability
to require source-specific permitting as needed to protect air quality.
The EPA intends to make those determinations on a case-by-case basis.
Factors we will consider include: Levels of measured air quality
relative to the NAAQS and rates of growth in oil and natural gas
production activity and associated changes in emissions. Any decision
to require source-specific permitting will apply to the entire area in
question and to all sources planning to locate or expand in such area
and we will provide advance notice to owners/operators and tribes in
the affected area prior to a programmatic, area-wide imposition of
source-specific permitting.
Comment #23: Several commenters encouraged the EPA to develop
reservation-specific or region-specific FIPs that account for
particular air quality concerns and that are consistent with the
permitting rules and requirements of the surrounding states. This will
help level the playing field between neighboring permitting
jurisdictions and ensure that oil and natural gas development on tribal
lands is not disadvantaged solely due to permitting differences. One
commenter specifically referred to the Uintah and Ouray Indian
Reservation, which is a tribal area at risk of nonattainment
designation under the lowered ozone standard. The commenter noted that
revenue generated from oil and natural gas development in this area is
an important part of the tribal and regional economy. One commenter
suggested that the EPA not wait until certain areas are re-designated
as nonattainment to develop area-specific FIPs, but that the EPA should
develop area-specific FIPs for areas in danger of re-designation
immediately, notably the Uinta Basin and the San Juan Basin.
One commenter stated that the EPA should define ``necessary or
appropriate'' by identifying more specific criteria for when
reservation-specific FIPs will be issued. The commenter suggested that
one such criterion would be ozone concentrations close to the NAAQS.
The commenter further recommended that the EPA should base its decision
on the availability of two years of valid monitoring data, considering
data from all available, reliable monitors, regardless of whether the
EPA has certified them as regulatory monitors.
Response #23: The EPA continues to believe that this FIP will be
protective of air quality in attainment, attainment/unclassifiable and
unclassifiable areas of Indian country. We, nevertheless, have the
authority to promulgate reservation-specfic FIPs if we determine that
it is necessary or appropriate to protect air quality. The EPA intends
to make those determinations on a case-by-case basis. Factors we will
consider include: Levels of air quality the area in question is
experiencing relative to the NAAQS, rates of growth in oil and natural
gas production activity, and associated changes in emissions in the
area in question. We will work with tribes in developing any area-
specific FIP that we determine is necessary or appropriate to protect
air quality and will provide notice and an opportunity
[[Page 35966]]
for comment prior to the promulgation of an area-specific FIP.
Comment #24: One commenter noted that tribal areas across the
country currently include thousands of wells, and that there are
thousands more forthcoming. Accordingly, all of this activity gives
rise to ever-increasing emissions, exposes tribal members to harmful
air toxics and impacts visibility in Class I areas such as national
parks and wilderness areas. In addition, oil and natural gas sector
emissions include large quantities of methane, which contributes to
climate change. The commenter encourages the EPA to develop national
uniform requirements to protect public health and welfare and to
mitigate the severity of climate change.
Response #24: The EPA agrees with the commenters that oil and
natural gas development in tribal areas results in emissions of harmful
air toxics and other pollutants of concern. To mitigate these impacts,
the proposed FIP included a uniform set of requirements from six
current federal rules that apply in all tribal areas. In addition to
these six, the EPA is adding two additional rules to the final FIP: 40
CFR part 60, subpart KKKK, and 40 CFR part 63, subpart ZZZZ. This suite
of eight federal rules ensures: (1) Comprehensive application of the
latest control technologies and unit processes found in the oil and
natural gas sector; and (2) that the sector is controlled under the
FIP. In addition, as needed to protect air quality, the EPA will
continue to develop area-specific FIPs and/or utilize source-specific
permitting for areas with poor or degraded air quality. The Federal
Indian Country Minor NSR rule is not intended to address climate change
per se; however, compliance with a number of the included rules will
lead to co-reductions in emissions of methane, which is a potent
greenhouse gas (GHG).
Comment #25: One commenter requested to have certain activities not
considered modifications, including in-kind replacement of internal
combustion and temporary engines, as well as control device additions,
removals, and replacements as allowed by federal rules. This would
allow operators to move equipment off site to perform needed repairs or
maintenance to avoid production delays and to mitigate potential
hazards associated with on-site maintenance.
Response #25: On May 30, 2014, the EPA finalized revisions to the
Federal Indian Country Minor NSR rule that exempted certain internal
combustion engines from the permitting requirements under the rule.\61\
These included certain emergency generators and stationary engines with
a horsepower rating less than 50. The final rule also provided guidance
to industry specifically in response to a comment regarding the
relocation or replacement of single pieces of equipment (e.g., an
internal combustion engine) in the oil and natural gas sector. The
source owner/operator should verify with its Reviewing Authority that
the ``matching'' situation described in the preamble to the final May
30, 2014 rule, and its stated outcome, applies to its case. Concerning
control device additions, removals, and replacements, a broad exclusion
for consideration as a modification cannot be given. Changes regarding
control devices have the potential to increase emissions, and, thus,
the potential emissions impact would have to be assessed by the owner/
operator. To the extent that these changes result in emissions
increases that fall below the minor NSR thresholds or satisfy the
criteria under the definition of modification in Sec. 49.152, there
would be no requirement to register the unit(s) or to make a change to
a prior registration. Under Sec. 49.152, the following exemptions to
modifications apply:
---------------------------------------------------------------------------
\61\ ``Review of New Sources and Modifications in Indian
Country--Amendments to the Federal Indian Country Minor New Source
Review Rule,'' U.S. Environmental Protection Agency, 79 FR 31035,
May 30, 2014, https://www.gpo.gov/fdsys/pkg/FR-2014-05-30/pdf/2014-11499.pdf.
---------------------------------------------------------------------------
A physical or operational change does not include routine
maintenance, repair or replacement.
An increase in the hours of operation or in the production
rate is not considered an operational change unless such change is
prohibited under any permit condition that is enforceable as a
practical matter.
A change in ownership at a stationary source.
The emissions units and activities listed in Sec.
49.153(c).
G. Synthetic Minor Sources and Minor Modifications at Major Sources
1. Proposed Rule
With respect to synthetic minor sources, in the September 2015
proposed FIP, the EPA did not structure the requirements to accommodate
the creation of synthetic minor sources.\62\ In the Background portion
of the notice, we noted that in May 2015 we took final action \63\ on a
set of general permits and permits by rule in which we also authorized
the use of general permits established under the program to create
synthetic minor sources. We did this by including requirements in the
general permits that otherwise major sources could comply with to
reduce their PTE to below major source levels. We indicated in that
action that general permits (and not permits by rule) can serve as an
appropriate mechanism for creating synthetic minor sources because
permits by rule do not provide for the same level of review and
scrutiny by the Reviewing Authority as general permits. They also do
not provide the same level of public participation. More specifically,
in the May 2015 final action, based on comments received, we decided to
issue final general permits for two categories (and not the three
others) that involve more complex operations and multiple pollutants
because the general permit approval process provides an opportunity for
case-specific Reviewing Authority review. Because permits by rule do
not involve the same level of review, the EPA did not finalize the use
of permits by rule to create synthetic minor sources.
---------------------------------------------------------------------------
\62\ Per Sec. 49.152(d), synthetic minor source means a source
that otherwise has the potential to emit regulated NSR pollutants in
amounts that are at or above those for major sources in Sec.
49.167, Sec. 52.21 or Sec. 71.2, as applicable, but that has taken
a restriction so that its potential to emit is less than such
amounts for major sources. Such restrictions must be enforceable as
a practical matter.
\63\ ``General Permits and Permits by Rule for the Federal Minor
New Source Review Program in Indian Country for Five Source
Categories,'' U.S. Environmental Protection Agency, 80 FR 25068, May
1, 2015, http://www.gpo.gov/fdsys/pkg/FR-2015-05-01/pdf/FR-2015-05-01-FrontMatter.pdf.
---------------------------------------------------------------------------
With respect to minor modifications at major sources, we did not
address the issue per se in the proposed FIP, but we did address how to
treat such cases in the permitting documents associated with the final
May 2015 rule.\64\ In the Request for Coverage and Notification of
Coverage Forms \65\ from the May 2015 rule, the EPA established
requirements that sources include all existing, new and modified units
in their PTE determinations for purposes of comparing that PTE to the
major source thresholds. This exercise is necessary for determining
eligibility for the general permits. If the sum of the potential
emissions from all of these units exceeds the major source threshold,
then the source is not eligible for the general permit. Effectively,
this precludes minor modifications at major sources from general permit
eligibility.\66\ Such sources require
[[Page 35967]]
source-specific permits that undergo Reviewing Authority review. We did
provide an exception in the May 2015 action for otherwise major sources
that are willing to accept certain emissions limits, throughput, fuel
and other limits and become synthetic minor sources, provided that the
limits accepted by the source would lower source-wide PTE to below the
major source NSR thresholds, counting emissions from all new, modified
and existing units.
---------------------------------------------------------------------------
\64\ Ibid.
\65\ These forms can be found at: https://www.epa.gov/tribal-air/tribal-minor-new-source-review.
\66\ Minor modifications at major sources are also, of course,
not covered by the permits by rule we have issued thus far for
reasons similar to the reasons for general permits.
---------------------------------------------------------------------------
2. Final Action
After careful consideration of the comments, we continue to believe
that the FIP is not an appropriate mechanism for establishing synthetic
minor sources. We have, therefore, not made any changes to the FIP to
accommodate its use to create synthetic minor sources. As indicated
above, the EPA has an established policy that requires the Reviewing
Authority have the opportunity to review any requests from a source for
synthetic minor status; the FIP does not provide that opportunity.
In this final action, we are also not modifying the FIP to
authorize modifications at major sources. The FIP is being made
available to true minor sources in lieu of a true minor source permit.
As mentioned above, the general permits (and, as noted, permits by
rule) the EPA has issued to date are for true minor sources and are not
available for minor modifications at major sources. Since the FIP is in
lieu of a minor source permit, similar to non-oil and natural gas
sources, minor modifications at major sources must have source-specific
permits that have undergone Reviewing Authority review. As noted above,
we do allow general permits to create synthetic minor sources, which
could involve a minor modification at a major source. Since we are not
allowing for the creation of synthetic minor sources under the FIP for
the reasons explained above, we are not allowing for the FIP to cover
minor modifications at major sources.
By definition, major sources are more complex than minor sources
and, as noted above, we believe such complexity necessitates that a
review--under a general permit or source-specific permit--needs to be
conducted for all permitting-type changes, whether to obtain synthetic
minor status or for a modification at an existing major source. Since
this FIP does not provide for any EPA source-specific permit review,
and is intended as a streamlining alternative to source-specific
permitting, we do not believe it is appropriate to cover modifications
at major sources in this FIP.
We have added regulatory text to Sec. 49.101 to make it clear that
the FIP does not apply to minor modifications at major sources.
3. Comments and Responses
The following discussion contains comments on the use of the FIP
for establishing synthetic minor sources and minor modifications at
major sources as an alternative to source-specific permits, general
permits and permits by rule and our responses. The comments and
responses are also addressed in Section 4.0 of the RTC Document.
Comment #26: Several commenters requested that the EPA provide a
mechanism for obtaining synthetic minor permits under the FIP. One
commenter noted that there are a number of emission units common at oil
and natural gas facilities that are not subject to the six federal
regulations included in the proposed FIP, and that, therefore, would
not be eligible for federally enforceable limits that are available for
units covered under the six other rules. The commenter stated that
unless such provisions were included, an overwhelming number of
operators in Indian country will have to obtain source-specific
permits. One commenter noted that most states with significant oil and
natural gas production have streamlined permitting mechanisms (e.g.,
general permits or permits by rule) in place for synthetic minor
sources, as does the Fort Berthold Indian Reservation FIP. Another
commenter noted that this would disadvantage oil and natural gas
development on tribal lands because companies may prefer to locate
where streamlined synthetic minor permitting options are available. It
was also suggested that other limits, such as those imposed by tribal
authorities or the BLM, be considered ``enforceable as a practical
matter'' when considering the PTE and permit level. One commenter
suggested insertion of the following language to allow for federally
enforceable limits for emission units not subject to the six other
rules:
(a) Sources not subject to NSPS or NESHAPs may elect to comply
with a NSPS or NESHAP under this FIP as a mechanism to establish
enforceable conditions on the source's potential to emit. Once the
source elects to be subject to the NSPS or NESHAP, the NSPS or
NESHAP are enforceable against the source under this FIP.
(b)(i) Sources may elect to be subject to one or more facility-
wide emission limits listed below.
a. 249 tons per year of any NSR regulated pollutant in an
attainment area;
b. 99 tons per year of any NSR regulated pollutant in any
nonattainment area;
c. 24 tons per year of total hazardous air pollutants;
d. 9 tons per year of any single hazardous air pollutant;
e. 99 tons per year of any regulated pollutant;
(ii) The facility-wide emission limits are 12-month rolling
limits. Once a source elects coverage under this paragraph, the
source must demonstrate compliance every month based on emissions of
the prior 12 months.
(iii) Sources subject to this paragraph shall demonstrate
compliance and determine emissions based on the monitoring and
recordkeeping dictated in any NSPS or NESHAP for the types of
equipment covered under the facility-wide emissions limit.
(iv) Sources subject to this paragraph shall monitor emissions
and emissions-related data and keep records consistent with NSPS or
NESHAP monitoring and recordkeeping for the types of equipment
covered by the emissions limit for the purposes of compliance with
this paragraph, even if such equipment is not subject to the NSPS or
NESHAP.
The commenter suggested that the EPA allow for flexibility in synthetic
minor limits in terms of production, throughput, or hours of operation.
One commenter suggested that the EPA provide a general permit, or
separate general permits for different unit types, pursuant to Sec.
49.156 with a suite of standards that would allow for federally
enforceable limits on units not subject to the six other rules included
in the proposed FIP. Several commenters suggested that self-
certification could be included in provisions allowing for synthetic
minor limits, and that this would reduce the burden on the EPA to have
to issue synthetic minor limits under a source-specific permit.
Response #26: The current Federal Indian Country Minor NSR rule
only allows the permitting of synthetic minor sources on a source-
specific basis. The EPA's review is necessary to establish synthetic
minor limits because without the verification that the required
controls and associated compliance provisions will accomplish their
objective, the source is a major source. Due to the streamlined nature
of the oil and natural gas FIP, such review is not part of the FIP's
process, which only requires source registration. Synthetic minor
sources are more appropriately permitted under source-specific permits
as they provide an opportunity for case-specific, Reviewing Authority
evaluation.
Moreover, the EPA's Reviewing Authorities in our Regional Offices
have seen no evidence of a high volume of requests for synthetic minor
permits from oil and natural gas sources. Nor did commenters provide
information on the volume of synthetic minor status requests to support
the need for a
[[Page 35968]]
synthetic minor option. Sources subject to the FIP are free to seek a
source-specific sythetic minor permit pursuant to Sec. 49.158.
No changes will be made as a result of this comment.
Comment #27: Several commenters requested that the EPA provide a
mechanism under the FIP to allow for construction of minor
modifications at major sources, as well as modifications at synthetic
minor sources. One commenter noted that modifications occurring at
major sources may be of the same type and size as a modification at a
true minor source, yet these situations would be treated differently
under the proposed FIP as they would require time-consuming source-
specific permits. One commenter noted that the EPA should not use the
term ``minor modifications at true minor sources'' in the rule because
all modifications at a true minor source are covered under minor NSR.
One commenter requested that the EPA replace references to ``minor
modifications at existing true minor oil and natural gas sources'' with
``minor modifications at existing oil and natural gas sources.'' In
addition, the commenter requested that the FIP allow for minor
modifications at major sources as such modifications are allowed under
the Federal Indian Country Minor NSR rule (Sec. 49.151). The proposed
verbiage revisions would reflect that such modification at major
sources were covered under the FIP.
Response #27: The July 2011 Federal Indian Country Minor NSR rule
provided for the streamlining of the permitting of true minor sources
through the use of general permits (and eventually permits by rule),
with the permitting of minor modifications at major sources requiring
source-specific permitting. As indicated above in the discussion of the
general permits and permits by rule that the EPA has already issued
under the Federal Indian Country Minor NSR rule, this FIP is not a
permitting option available for minor modifications at major sources.
Major sources are more complicated than minor sources, and
modifications at major sources are likely to be as well. Such sources
require the in-depth review of source-specific permits. By streamlining
less significant actions (i.e., true minor sources), we are freeing up
resources for the EPA to address actions at the larger, more complex
sources. As this FIP is limited to true minor sources (see response to
comments above), the suggested change is not necessary and no change
will be made as a result of this comment.
Comment #28: One commenter requested that the EPA amend the Federal
Indian Country Minor NSR rule to expand the definition of
enforceability to allow limits to be considered ``enforceable as a
practical matter'' to mean that a limit or standard is legally and
praticably enforceable if a government authority, federal or tribal,
has the right to enforce it. In particular, the commenter suggested
that such limits could be imposed by the BLM or a tribal authority.
Response #28: The definition of ``enforceable as a practical
matter'' in Sec. 49.152 states that an emission limitation or other
standard is legally enforceable if the reviewing authority has the
right to enforce it. Under this FIP, the EPA is the Reviewing
Authority. Therefore, limits or other standards that are not
enforceable by the EPA cannot be considered and no change will be made
to the definition as a result of this comment.
H. Nonattainment Areas
1. Proposed Rule
In the proposed rule, we addressed the issue of how to address
nonattainment areas under the proposed FIP given that it only applies
to attainment, attainment/unclassifiable and unclassifiable areas. It
would not apply to any areas designated nonattainment. We indicated
that the EPA or tribes will need to develop area-specific plans if and
when areas of Indian country become nonattainment for ozone or other
NAAQS pollutants. At that time, any such area that has oil and natural
gas minor source activity may require additional controls on existing
(and new and modified) sources in order to achieve attainment of the
NAAQS. One source of potential control options will be the EPA's CTGs
for oil and natural gas activity that the EPA has made available for
comment and will finalize in 2016.\67\
---------------------------------------------------------------------------
\67\ For more information, go to: https://www3.epa.gov/airquality/oilandgas/index.html.
---------------------------------------------------------------------------
2. Final Action
The EPA has not made any changes to the final FIP's requirements as
it relates to nonattainment areas. The FIP does not apply in such
areas. Before or after such an area is designated as nonattainment, we
will promulgate an area-specific FIP for existing sources if we
determine that it is ``necessary or appropriate'' pursuant to the
Tribal Authority Rule. At that time, we will determine whether the
final FIP should apply in the area or whether something more is
required and will include in the area-specific FIP a provision or
provisions putting the FIP, or some variation thereof, into effect in
the area. The public will have an opportunity to comment on any such
expansion of coverage of this FIP in the separate, area-specific
action.
3. Comments and Responses
The following discussion contains comments on our proposal that the
FIP does not apply in nonattainment areas and our responses. The
comments and responses are also addressed in Section 4.0 of the RTC
Document.
Comment #29: Several commenters requested that the EPA include
provisions in the FIP to allow for streamlined permitting of minor oil
and natural gas sources in nonattainment areas, including permitting in
areas during the transition period between the time an area is
designated as nonattainment and the time a FIP to control emissions
adequately in such nonattainment area is in place. One commenter noted
that with the lowered ozone standard, this issue may become
particularly problematic in certain areas, most notably the Uinta
Basin. Commenters requested that the FIP continue to provide for minor
source permitting in such areas until a basin-specific permitting
program becomes effective under the implementation planning process.
Because an attainment plan is not due until three years after an area
becomes nonattainment, the absence of a vehicle to allow for continuing
minor source permitting would require source-specific permits during
this transition period and would disadvantage oil and natural gas
development in Indian country. One commenter suggested that the FIP
continue as the permitting vehicle during the transition period, and
that the EPA develop area-specific FIPs for re-designated areas that
would supersede the national FIP upon issuance.
Response #29: The EPA recognizes the potential for certain tribal
areas to be designated as nonattainment for the new ozone standard.
Currently, the permitting mechanism in place under the Federal Indian
Country Minor NSR rule for oil and natural gas sources wishing to
locate in nonattainment areas is limited to source-specific permits. We
believe that this FIP as designed will be protective of air quality in
attainment, attainment/unclassifiable and unclassifiable areas, but
will not necessarily be protective in nonattainment areas without
further action to reduce emissions from existing sources. Therefore, we
are stating our intent to potentially apply this national FIP's
requirements as appropriate to nonattainment areas where the EPA has
established a separate, area-specific FIP
[[Page 35969]]
action. In that separate, area-specific action we would propose--and
seek comment on--the application of this FIP's requirements to new and
modified true minor sources in those certain areas designated
nonattainment.
It is important to note that the geographic scope of this FIP
cannot be extended to cover any nonattainment areas without the EPA
first proposing to apply its requirements to such an area through a
separate rulemaking subject to notice and an opportunity to comment. We
are here merely expressing our intent to use the approach described
above in the future to provide coverage for new and modified true minor
sources in Indian country nonattainment areas, should such areas exist,
where the EPA believes that the FIP, or some variation thereof, in
combination with an area-specific FIP, is sufficient to protect air
quality.
Our expression of intent to consider adopting this FIP in
nonattainment areas as an accompaniment to an area-specific FIP
addressing existing sources is in direct response to comments
requesting that this FIP be extended to tribal nonattainment areas at
least for a period of time after designation and until it is replaced
by another FIP that addresses new and modified sources. A factor in
considering whether to extend the coverage of this FIP is if we believe
that existing source emissions will be reduced to a great enough extent
to allow room for further growth of the industry in the area, while
also protecting air quality. As noted above, the public will have an
opportunity to comment on any such expansion of coverage of this FIP in
the separate, area-specific action.
I. How the EPA Selected Equipment Included in the Proposed FIP
1. Proposed Rule
The proposed oil and natural gas FIP focused on the production
segment of the oil and natural gas sector, because we believed this
segment includes the majority of the true minor sources in the sector
that would need to obtain a minor source permit in areas covered by the
Federal Indian Country Minor NSR rule. In the preamble to the proposed
rule, we described the natural gas production segment as ending where
the natural gas enters a natural gas processing plant. In situations
where there is no processing plant, the natural gas production segment
ends at the point where the natural gas enters the transmission segment
for long-line transport. The crude oil production segment ends at the
storage and load-out terminal which is the point of custody transfer to
an oil pipeline or for transport of the crude oil to a petroleum
refinery via trucks or railcars. The petroleum refinery is not
considered part of the oil and natural gas sector.
In determining which equipment to include in the proposed oil and
natural gas FIP, we reviewed the EPA regulations that apply to emission
units within the oil and natural gas production segment. We have relied
substantially on analyses performed in support of the 2015 proposed
NSPS, subpart OOOOa, to help determine which emission units the EPA
should consider regulating in the oil and natural gas sector in areas
covered by the Federal Indian Country Minor NSR rule as part of this
proposed FIP.\68\ In addition to the production segment sources
proposed to be covered under NSPS, subpart OOOOa, in the proposed FIP,
we proposed requirements from existing EPA standards for three emission
sources not covered by the proposed NSPS, subpart OOOOa, because they
are present at oil and natural gas production sites and emit
NOX and/or VOC: Engines, process heaters and glycol
dehydration units. Three of the six federal rules in the proposed FIP
regulate these air emissions sources, among others. Therefore, we
determined that a combination of existing federal regulations and the
2015 proposed NSPS, subpart OOOOa, provides a comprehensive and
consistent regulatory approach for addressing true minor oil and
natural gas production sources in areas covered by the Federal Indian
Country Minor NSR rule.
---------------------------------------------------------------------------
\68\ ``Oil and Natural Gas Sector: Standards for Crude Oil and
Natural Gas Facilities. Background Technical Support Document for
the Proposed New Source Performance Standards 40 CFR part 60,
subpart OOOOa,'' U.S. Environmental Protection Agency, August 2015,
EPA-HQ-OAR-2010-0505-5021, http://www.regulations.gov.
---------------------------------------------------------------------------
We concluded that these federal regulations include emission
limitations that are technically and economically feasible, and cost
effective because we have vetted the existing regulations via the
public comment process and sources are currently complying with these
federal standards, including new and modified sources in the oil and
natural gas sector located in areas covered by the Federal Indian
Country Minor NSR rule. The referenced NSPS are all promulgated
pursuant to the EPA's authority under CAA section 111. Under CAA
section 111(a), the emission limitations for all the affected sources,
except process heaters and glycol dehydrators, ``reflect the degree of
emission limitation achievable through the application of the best
system of emission reduction which (taking into account the cost of
achieving such reduction and any non-air quality health and
environmental impact and energy requirements) the Administrator
determines have been adequately demonstrated.'' We refer to this level
of control as the Best System of Emission Reduction (BSER). In
determining BSER, we typically conduct a technology review that
identifies what emission reduction systems exist and how much they
reduce air pollution in practice. For each control system identified,
we also evaluate its costs and other impacts.
The NESHAP for process heaters and glycol dehydrators are
promulgated pursuant to the EPA's authority under CAA section 112.
Under CAA section 112(d)(3), the emission limitations for glycol
dehydrators and process heaters at major sources of hazardous air
pollutants (HAPs) reflect the application of maximum achievable control
technology (MACT). The MACT emission limitation for new sources cannot
be less stringent than the emission control achieved in practice by the
best-controlled similar source, without considering costs. In addition,
under CAA section 112(d)(5), the emission reduction requirements for
triethylene glycol dehydrators at area sources reflect ``generally
available control technology'' (GACT). For GACT there is no statutory
minimum level of emissions reduction for new or existing sources and
costs can be considered. We proposed that the oil and natural gas FIP
require sources to comply with the applicable MACT (for glycol
dehydrators and process heaters located at major sources of HAP) or
GACT (for glycol dehydrators located at area sources of HAP) emission
limitations. Because the individual HAP pollutants regulated from
glycol dehydrators by the NESHAP (and to some degree from process
heaters, as well) for oil and natural gas production sources are also
VOC, which are regulated NSR pollutants, the proposed FIP would create
enforceable VOC reduction requirements for glycol dehydrators and
process heaters. HAPs would serve as a surrogate for VOC with respect
to emission limitations, monitoring, testing and compliance. In
addition, compliance with the 40 CFR part 63, subpart DDDDD, MACT also
provides beneficial reductions of other non-targeted NSR pollutants,
i.e., NOX.
We indicated that the rationale supporting the applicability,
emission limitations, monitoring, recordkeeping, reporting, and other
provisions for each of the six federal rules is found in the preambles
and background documents
[[Page 35970]]
for those rulemakings. The six federal rules are available on the
Electronic Code of Federal Regulations at: http://www.ecfr.gov/cgi-bin/ECFR?page=browse.
2. Final Action
In response to comments, we are expanding the scope of the FIP to
provide coverage of natural gas processing plants. In Sec. 49.102, we
have modified the definition of oil and natural gas source (termed oil
and natural gas production facility in the proposal) to facilitate this
expansion.
In part due to this expansion (resulting from our response to
comments), we are also modifying Sec. 49.105 of the proposed FIP by
adding two federal standards to the FIP's set of requirements:
40 CFR part 63, subpart ZZZZ--NESHAP for Stationary
Reciprocating Internal Combustion Engines; and
40 CFR part 60, subpart KKKK--Standards of Performance for
New Stationary Combustion Turbines.
Adding these standards to the FIP will provide standards for
combustion turbines at gas processing plants and expand the standards
in the FIP covering reciprocating internal combustion engines.
3. Comments and Responses
The following discussion contains comments related to how the EPA
selected equipment included in the proposed FIP and our responses. The
comments and responses are also addressed in Section 5.0 of the RTC
Document.
Comment #30: One commenter expressed concern that, in the absence
of a FIP condition expressly requiring installation of equipment
subject to the six other EPA rules included in the proposed FIP, a
source could utilize second-hand equipment with no applicable NSPS or
NESHAP requirement and, thus, operate with no control technology
requirements or emission limitations as required by Sec. 49.154(c).
The commenter recommended adding language to Sec. Sec. 49.101 and
Sec. 49.105 expressly requiring installation of equipment subject to
the six other rules included in the proposed FIP.
Response #30: The EPA believes that the commenter's proposal is not
workable as it would limit operators to only installing equipment that
is regulated by an EPA standard. Mandating the use of equipment that
meets an EPA standard runs contrary to the FIP's intent of applying a
consistent set of national requirements across Indian country. In some
instances sources may need to use a piece of equipment that is not
subject to an EPA standard. Instead, our approach under the FIP is to
require that equipment subject to one or more of the eight EPA
standards comply with those standards for purposes of the FIP. As long
as the equipment in question can meet the limits to which they are
subject, regardless of the mechanism used to do so, the owner/operator
should be able to use that equipment. We believe that this approach is
sufficient to protect air quality in attainment, attainment/
unclassifiable and unclassifiable areas. No change will be made as a
result of this comment.
Comment #31: Three commenters asked the EPA to expand the scope of
the proposed rule to include minor oil and natural gas sources outside
the production segment. All three commenters requested that natural gas
processing plants be added; two commenters requested that natural gas
transmission and storage facilities be added, and one commenter
requested that natural gas distribution facilities be added. One
commenter asked the EPA to indicate whether it intends to regulate any
or all of these segments in the future, and if so, what is the EPA's
projected timetable. One commenter recommended that the language in
Sec. 49.101(b)(1)(i) be modified to read:
``The facility is an oil and natural gas production facility or
natural gas processing plant as defined in Sec. 49.102;''
Response #31: In response to these comments, the EPA has determined
to expand the regulatory language in the FIP to cover true minor
natural gas processing plants. The EPA has added the requirements of 40
CFR part 60, subpart KKKK, to the list of standards to cover turbines
at compressor stations. The EPA notes that it is not necessary to add
40 CFR 60, subpart KKK--Standards of Performance for Equipment Leaks of
VOC From Onshore Natural Gas Processing Plants for Which Construction,
Reconstruction, or Modification Commenced After January 20, 1984, and
on or Before August 23, 2011, or 40 CFR part 60, subpart LL--Standards
of Performance for SO2 Emission from Onshore Gas Processing
for which Construction Commenced after January 20, 1984, and on or
Before August 23, 2011. These rules are already included in the current
FIP requirements because they are already included in the oil and
natural gas NSPS rule at 40 CFR part 60, subpart OOOOa. The EPA is also
adding the requirements of 40 CFR 63, subpart ZZZZ--National Emissions
Standards for Hazardous Air Pollutants for Stationary Reciprocating
Internal Combustion Engines to the FIP in the final rule. We are
comfortable with including these additional facilities under the FIP to
cover true minor natural gas processing facilities because the rules
will require adequate control and we do not feel that source-specific
review is necessary just as we do not regard it as necessary (unless we
make an exception for air quality concerns) for true minor sources in
the oil and natural gas production segment of the oil and natural gas
sector.
With respect to the timetable for any future regulation of the oil
and natural gas sector, all segments in the sector are already subject
to regulation by the EPA under the Federal Indian Country Minor NSR
rule. However, only certain segments are included in this FIP because
we believe that the vast majority of true minor sources in the oil and
natural gas sector are in the oil and natural gas production and
natural gas processing segments of the sector.
Comment #32: One commenter stated that the proposed definition for
``oil and natural gas production facility'' should be revised to
exclude references to mobile and temporary sources, such as well
drilling, completion, workover activities, and portable non-self-
propelled equipment because the CAA expressly precludes application of
NSR and title V to mobile sources, such as portable, engine-powered
well-drilling equipment and portable reciprocating internal combustion
engines. The commenter recommended that the EPA should make it clear
that these sources are not subject to air permitting requirements under
the oil and natural gas FIP. This same commenter stated that the
proposed oil and natural gas production facility definition does not
include common unit operations such as water treatment, sweetening
units (acid gas removal units), truck loading, and dew point
suppression skids. The commenter noted that language such as ``low to
medium pressure, small diameter'' are arbitrary descriptions for
gathering pipelines, and that these equipment are better described by
purpose (i.e., to gather field gas). The commenter recommended the
following change to the oil and natural gas production facility
definition. They recommended the following additions and deletions:
Adding ``water'' to the list of materials to be separated
or treated;
Adding the following items to the list of production
components: Natural gas sweetening, truck loading. and dew point
suppression skids; and
Deleting the following items from the list of production
components: Well drilling, completion and workover
[[Page 35971]]
processes and portable non-self-propelled apparatuses associated with
those operations; and low to medium pressure, smaller diameter,
gathering pipelines and related components that collect and transport
the oil, natural gas and other materials and wastes from the wells or
well pads.
Response #32: The EPA has replaced the definition of ``oil and
natural gas production facility'' in Sec. 49.102 as proposed with
``oil and natural gas source.'' The new definition incorporates some of
the suggestions recommended by the commenter. We did not include the
segments of transmission or distribution of natural gas in the
definition because they do not fall within the scope of coverage of
this FIP.\69\ However, we believe that completion and workover
processes should not be removed from the definition because they are
stationary sources regulated under 40 CFR part 60, subpart OOOOa. This
makes the treatment of these sources under the FIP definition (Sec.
49.102) consistent with definitions related to the oil and natural gas
sector in 40 CFR part 60, subpart OOOOa; 40 CFR part 63, subpart HH;
and the FBIR FIP.
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\69\ This FIP only covers the oil and natural gas production and
natural gas processing segments of the oil and natural gas sector
because we believe that the vast majority of true minor sources in
the oil and natural gas sector are in those two segments.
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Comment #33: One commenter recommended that specific oil and
natural gas exploration and production equipment be regulated under the
proposed FIP. Specific equipment recommended for inclusion in the FIP
includes: Drill rigs, liquids unloading, dehydrators, truck loadout,
and phase separation. The commenter recommended that plunger lifts be
required for all liquids unloading. The commenter recommended that
dehydrators be required to control VOC by 95 percent by using a
condenser.
Response #33: The EPA feels that the original suite of six federal
rules proposed to be included in the FIP, in conjunction with the two
additional federal rules added under this final action, combine to
adequately control emissions from oil and natural gas facilities for
purposes of the FIP. It should be noted that drilling rig engines are
not considered stationary sources for purposes of permitting under the
Federal Indian Country Minor NSR rule, and dehydrators are addressed
under 40 CFR part 63, subpart HH (National Emission Standards for
Hazardous Air Pollutants from Oil and Natural Gas Production
Facilities), which is one of the eight federal rules included in the
FIP. No change has been made as a result of this comment.
Comment #34: One commenter recommended that the proposed FIP
include regulation of emissions from well completions for both oil and
natural gas wells, as well as casinghead gas and associated gas
emissions. The commenter referenced recommendations in an ICF
International report (ICF International, Economic Analysis of Methane
Emission Reduction Opportunities in the U.S. Onshore Oil and Natural
Gas Industries (March 2014), at 3-3, available at: http://www.edf.org/sites/default/files/methane_cost_curve_report.pdf).
Response #34: The FIP includes the recently revised Standards of
Performance for New and Modified Sources in the Oil and Natural Gas
Sector (40 CFR part 60, subpart OOOOa), which requires control of oil
and natural gas well completions for hydraulically fractured wells.
Casinghead gas and associated gas emissions from venting or flaring
during ongoing production are not currently addressed under the eight
federal rules included in the final FIP; however, if those emissions
sources are regulated under a future revision of subpart OOOOa, then
they would automatically fall under the requirements of this FIP at
true minor sources. No change has been made as a result of this
comment.
Comment #35: Two commenters recommended that the EPA clarify the
definition of natural gas processing plant by revising it to be
consistent with the definition in other air rules. Both commenters
stated that the EPA should clarify that a Joule-Thompson valve, dew
point depression valve, or an isolated or standalone Joule-Thompson
skid does not make a site a natural gas processing plant. Both
commenters recommended that the EPA reference or include in Sec.
49.102 the definition of a natural gas processing plant contained in 40
CFR part 60, subpart OOOO (Sec. 60.5430).
Response #35: The FIP proposal did not include a definition of
natural gas processing plant. In this final action we are modifying
Sec. 49.102 to revise the definition of an ``oil and natural gas
production facility'' (now ``oil and natural gas source'') to make the
treatment of these sources under the FIP definition (Sec. 49.102)
consistent with definitions related to the oil and natural gas sector
in 40 CFR part 60, subpart OOOOa; 40 CFR part 63, subpart HH; and the
FBIR FIP. We have also included natural gas processing plant as part of
the definition of ``oil and natural gas source'' under Sec. 49.102.
One of the two commenters recommending including the definition of
gas processing plant from 40 CFR part 60, subpart OOOO, provided
incorrect language for the definition. Nonetheless, we have concluded
that adding a definition for natural gas processing plant to the FIP is
unnecessary; including natural gas processing plant in the definition
of source is sufficient to extend the coverage of this FIP to non-major
natural gas processing plants. At the beginning of Sec. 49.102 we make
it clear that all terms not defined in the section shall have the
meaning given them in 40 CFR part 60, subpart OOOOa, among other
sources, which would include how natural gas processing plant is
defined in the subpart.
Comment #36: One commenter noted that the current list of
referenced federal NSPS and NESHAP regulations does not include 40 CFR
part 63, subpart ZZZZ--National Emission Standards for Hazardous Air
Pollutants for Stationary Reciprocating Internal Combustion Engines.
The commenter stated that the EPA should make it clear in the preamble
and ensure that no regulatory language of the FIP excludes oil and
natural gas sources from relying on subpart ZZZZ to limit the PTE of
engines to be able to qualify for the FIP. The commenter recommended
that subpart ZZZZ be included in the list of referenced rules (at Sec.
49.105(g)) as follows:
``For sources that are subject to subpart ZZZZ, National Emission
Standards for Hazardous Air Pollutants for Stationary Reciprocating
Internal Combustion Engines, for purpose of this FIP, sources must
comply with all of the applicable provisions of the standard as written
as of [INSERT DATE OF FINAL PROMULGATION OF O&G FIP]:''
Response #36: The EPA has included the requirements of 40 CFR part
63, subpart ZZZZ, into the final FIP as requested by the commenter. As
with all of the appplicable requirements from all eight of the
regulations referenced in this FIP, a source can rely on the reductions
required by 40 CFR part 63, subpart ZZZZ, to reduce its PTE.
Comment #37: One commenter recommended that the FIP require all new
compressor engines to install steam injection and control technologies
such as low-emission combustion retrofit, selective catalytic reduction
(SCR), or selective non-catalytic reduction (SNCR) and to require
existing sources to retrofit with the appropriate control. The
commenter further recommended that the EPA should require the use of
electric motors for new engines unless the operator shows it is
infeasible to do
[[Page 35972]]
so. One commenter recommended that the FIP require all external
combustion units to control NOX emissions with SNCR, SCR, or
a combination of SCR plus low NOX burners.
Response #37: The proposed FIP incorporates control requirements
for internal and external combustion units in accordance with 40 CFR
part 63, subpart DDDDD (National Emission Standards for Hazardous Air
Pollutants for Major Sources: Industrial, Commercial, and Institutional
Boilers and Process Heaters); 40 CFR part 63, subpart ZZZZ (National
Emissions Standards for Hazardous Air Pollutants for Stationary
Reciprocating Internal Combustion Engines); 40 CFR part 60, subpart
IIII (Standards of Performance for Stationary Compression Ignition
Internal Combustion Engines); 40 CFR part 60, subpart JJJJ (Standards
of Performance for Stationary Spark Ignition Internal Combustion
Engines); and 40 CFR part 60, subpart KKKK (Standards of Performance
for New Stationary Combustion Turbines). In the development of the FIP,
we have relied on the analysis conducted in the development of these
existing rules to determine adequate control technology requirements
for these types of sources. The FIP only applies to new true minor
sources and modifications at existing true minor sources thus does not
address the control of emissions from existing source.
J. Pollutants Included in the Proposed FIP
1. Proposed Rule
In the preamble to the proposed rule, we indicated that the
pollutants emitted from the activities regulated through the proposed
Federal Indian Country Minor NSR rule (regulated NSR pollutants)
include: VOC, NOX, SO2, PM, PM10,
PM2.5, H2S, CO and various sulfur compounds.
Hydrogen sulfide and SO2 are emitted from production and
processing operations that handle and treat sour gas.\70\
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\70\ Sour gas is natural gas with more than 5.7 milligrams of
H2S per normal cubic meters (0.25 grains/100 standard
cubic feet), see AP-42 Compilation of Air Pollutant Emission
Factors, Chapter 5.0 Introduction to Petroleum Industry, Section 5.3
Natural Gas Processing, available at: http://www.epa.gov/ttnchie1/ap42/ch05/final/c05s03.pdf.
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2. Final Action
In the final FIP, there is no change in the pollutants covered.
3. Comments and Responses
The following discussion contains comments related to the
pollutants included in the proposed FIP and our responses. The comments
and responses are also addressed in Section 6.0 of the RTC Document.
Comment #38: One commenter recommended that the EPA expand the
pollutants regulated in the proposed FIP to include methane. The
commenter noted that, in the proposed FIP, the EPA states that it will
include the requirements of the proposed, amended 40 CFR part 60,
subpart OOOOa, in the FIP. The commenter stated that adding methane to
the list of pollutants covered by the rule would provide operators and
tribes with certainty that the parts of the NSPS rule governing methane
emissions also apply in Indian country.
Response #38: The Federal Indian Country Minor NSR rule does not
regulate GHGs, which include methane. The FIP is implementing the
Federal Indian Country Minor NSR rule for the oil and natural gas
sector, and, therefore, does not regulate GHGs. However, it is worth
noting that, while the rule does not directly regulate methane, any
controls that effectively control VOC emissions will also control
methane emissions. In addition, in the event that subpart OOOOa as
adopted requires control of methane, methane emissions will be reduced.
No change has been made as a result of this comment.
K. Exclusion of Existing Sources From the Proposed Oil and Natural Gas
FIP
1. Proposed Rule
In the proposed rule, the EPA indicated that, while the Federal
Indian Country Minor NSR rule only addresses new and modified sources,
including such sources in the oil and natural gas sector, the EPA
believes that managing emissions from existing oil and natural gas
sources in some areas of Indian country also may be important. This is
because of the significant emissions associated with existing activity
in the oil and natural gas sector in some areas of Indian country and
the resultant need to protect public health and the environment.
Addressing existing sources through a FIP could be useful in areas of
Indian country for which surrounding state requirements apply to
existing oil and natural gas sources located on lands that are within a
state's jurisdiction. In doing so, EPA would consider tribes' views and
interests, including any interest in promoting economic development.
While EPA believes that it has the necessary authority to
promulgate a FIP regulating existing sources should it determine that
it is necessary or appropriate to do so, in the September 2015 action,
we proposed that the FIP only apply to new and modified true minor
sources in the production segment of the oil and natural gas sector. In
the proposed rule, we indicated that the proposed FIP for new and
modified true minor sources in the oil and natural gas production
segment locating or located in Indian reservations (and other areas of
Indian country over which an Indian tribe, or the EPA, has demonstrated
that the tribe has jurisdiction) would apply to all such areas
designated attainment, attainment/unclassifiable, or unclassifiable. It
would not apply to any areas designated nonattainment. The Federal
Indian Country Minor NSR rule allows us to manage minor source emission
increases in Indian country and to ensure that new source emissions do
not cause or contribute to a NAAQS or PSD increment violation. We are
concerned that the rapid growth of the oil and natural gas production
segment, in combination with existing exploration and production
activities, could result, or in some cases already has resulted, in
adverse air quality impacts, especially in light of the approximately
6,300 existing true minor source registrations received in the EPA
Region 8 Office for facilities in the oil and natural gas sector.\71\
However, we believe that the most appropriate means for addressing
impacts from existing sources is through area- or reservation-specific
FIPs and not through a national FIP. If we determine that it is
``necessary or appropriate'' to exercise our discretionary authority
under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) of
our implementing regulations, we will publish a proposed area- or
reservation-specific FIP that provides an opportunity for full public
review and comment. At a minimum, the EPA or tribes will need to
develop area-specific plans if and when areas of Indian country become
nonattainment for ozone or other NAAQS pollutants. At that time, any
such area that has oil and natural gas minor source activity may
require additional controls on existing (and new and modified) sources
in order to achieve attainment of the NAAQS. One source of information
for control options will be the EPA's control techniques guidelines
(CTGs) for oil and natural gas activity that the EPA
[[Page 35973]]
has made available for comment and will finalize in 2016.\72\
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\71\ In the Federal Indian Country Minor NSR rule, EPA
established a registration program that required owners/operators of
existing true minor sources to file a one-time registration with the
appropriate Reviewing Authority by March 1, 2013. The EPA's Region 8
Office has received about 6,300 registrations from true minor
sources in the oil and natural gas sector. This far exceeded the
amount received from sources in any other category.
\72\ For more information, go to: https://www3.epa.gov/airquality/oilandgas/index.html.
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We believe that existing sources are best addressed through
tailored, federal or tribal air quality plans because each basin
producing oil and/or natural gas possesses different geological and
meteorological characteristics and, thus, the primary fossil fuel
resource extracted can be very different in quality and type and the
impacts from emissions associated with extraction activities can vary
widely. For example, the predominant resource extracted from the Bakken
Pool \73\ is a light, volatile oil, while the primary resource
extracted from the Uintah Basin is a heavy, thick oil. Each of these
types, in many cases, call for different sets of control requirements
that are best addressed through tailored plans versus a national FIP.
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\73\ Bakken Pool means oil produced from the Bakken, Three
Forks, and Sanish formations.
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We believe that through tailored plans a number of cost-effective
emission reduction measures could be applied to existing emission units
to balance new growth by mitigating the potential for adverse air
quality impacts from overall increases in emissions. A number of state
air pollution control agencies already regulate some existing emissions
from this segment.\74\ For example, in February 2014, Colorado adopted
additional regulations for oil and natural gas production operations
that include such requirements as expanding nonattainment area
pneumatic controller requirements statewide and reducing venting and
flaring of gas streams at well sites, among other control
strategies.\75\ In addition, these regulations determined leak
detection and repair monitoring to be cost effective at oil and natural
gas production facilities. Some technologies may even provide the
industry with cost savings due to recovered product. For example, the
EPA's Natural Gas Star program estimates that adding a vapor recovery
unit to a storage tank could pay for itself in 3 to 37 months, and
thereafter result in cost savings.\76\
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\74\ See, e.g., L. Gribovicz, WRAP, ``Analysis of States' and
EPA Oil and Gas Air Emissions Control Requirements for Oil and Gas
Emissions Control Requirements for Selected Basins in the Western
United States (2013 Update),'' Nov. 8, 2013, available at http://www.wrapair2.org/pdf/2013-11x_O&G%20Analysis%20(master%20w%20State%20Changes%2011-08).pdf.
\75\ See Colorado Dept. of Public Health and Environment, Air
Quality Control Commission Web site at http://www.colorado.gov/cs/Satellite/CDPHE-AQCC/CBON/1251647985820.
\76\ See ``Lessons Learned from Natural Gas STAR Partners;
Installing Vapor Recovery Units on Storage Tanks,'' available at
http://epa.gov/gasstar/documents/ll_final_vap.pdf on the EPA's
Natural Gas Star Web site: http://epa.gov/gasstar/index.html.
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2. Final Action
The final FIP does not address existing oil and natural gas
sources. As we discussed in our proposal, this FIP is used in lieu of
source-specific permits to fulfill our requirement under the Federal
Indian Country Minor NSR rule to issue pre-construction permits to new
and modified sources. Further, when we proposed the Federal Indian
Country Minor NSR rule on August 21, 2006, we asked for comment on how
to address existing sources and we presented four options.\77\ Of the
proposed options, in response to comments, we chose to require that
existing sources have to register with their Reviewing Authority,
including the submittal of emissions data, with no additional
requirements, unless they modify the existing source. While one of the
options presented was not to include any requirements for existing
sources, and would have been more consistent with state minor NSR
programs, we stated that collecting source emissions data was necessary
to successfully implement the minor source program. We still believe
that to be the case today and that an area-specific FIP is the most
appropriate way to address emissions from existing sources.
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\77\ ``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.
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In addition, we are indicating in this final action that in the
future (subject to notice and comment) the requirements of this FIP may
be extended to certain areas designated nonattainment for which the EPA
has issued an area-specific FIP. This possible, future extension of
coverage of this FIP could provide a mechanism for the EPA to provide
streamlined permitting in nonattainment areas where we have addressed
existing sources, providing air quality protection and a way to allow
continued oil and natural gas growth in Indian country where it
represents an important source of tribal government revenue. So, while
we are not regulating existing sources in this action, we do believe
that existing sources will need to be addressed before new and modified
emissions can occur in nonattainment areas.
Finally, on March 10, 2016, the Obama Administration and the EPA
announced the next step in reducing emissions of methane from the oil
and natural gas industry: Moving to regulate emissions from existing
sources. The agency is beginning with a formal process to require
companies operating existing oil and natural gas sources to provide
information to assist in the development of comprehensive regulations
to reduce methane emissions.\78\
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\78\ For more information, go to: http://www3.epa.gov/airquality/oilandgas/methane.html.
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3. Comments and Responses
The following discussion contains comments related to the exclusion
of existing sources from the proposed FIP and our responses. The
comments and responses are also addressed in Section 7.0 of the RTC
Document.
Comment #39: Several commenters submitted comments on the subject
of regulating existing sources in the proposed FIP. Three commenters
recommended that the EPA regulate existing sources; one commenter
recommended that the EPA create a voluntary process for existing
sources to register and to be regulated under the FIP; three commenters
agreed with the EPA's position not to regulate existing sources; and
one commenter recommended that the EPA regulate existing sources only
in the context of area-specific rules. One of the commenters favoring
the regulation of existing sources noted that there is substantial
evidence demonstrating that existing oil and natural gas sources are
responsible for considerable air pollution emissions within Indian
country, and that a FIP is the only method by which the EPA may
regulate existing sources. This commenter further noted that many areas
of Indian country are already in nonattainment despite the six
regulations already in place, and that it might be necessary for the
EPA to regulate existing sources in other areas in order to prevent
them from slipping into nonattainment. One of the commenters
recommended that the EPA develop an approach for regulating existing
true minor source oil and natural gas facilities in Indian country
apart from the Proposed Rule that not only takes into account those
parts of Indian country where the EPA finds an area- or reservation FIP
is necessary for existing sources, but addresses existing sources
throughout all of Indian country. Such an approach could include the
use of FIPs, general permits, or permits by rule.
The three commenters requesting that the EPA not regulate existing
sources recommended that regulation of existing sources should be
addressed in the context of area-specific rulemakings, developed on a
regional basis in a way that reflects local air quality
characteristics, current air quality data,
[[Page 35974]]
and emissions inventories. One of the commenters requesting that the
EPA address existing sources in the context of area-specific
rulemakings suggested that not all existing minor sources should be
regulated in the same manner; the EPA should target those sources most
directly contributing to air quality degradation. This commenter
further recommended that, should the EPA choose to regulate existing
sources, the EPA should apply control requirements to existing source
emissions in a flexible manner, gradually increasing enforcement as
appropriate.
Response #39: The purpose of the proposed FIP was to address pre-
construction permitting for new and modified true minor sources
locating or located in reservation areas of Indian country and other
areas of Indian country over which a tribe has jurisdiction in order to
satisfy the requirements of the Federal Indian Country Minor NSR rule.
We chose this approach both because of our concern that the number of
applications for source-specific permits from true minor sources in the
oil and natural gas sector would overwhelm the available resources of
the Reviewing Authority and to provide consistency in the regulation of
such sources throughout the areas where the Federal Indian Country
Minor NSR rule is in effect. The proposed FIP does not address existing
sources, unless they undergo modification. We see no reason to change
that in the final FIP. Rather, as discussed above, we believe the best
way to address emissions from existing sources is through a
reservation- or area-specific FIP if and when we determine that one is
necessary or appropriate to protect air quality. In addition to
satisfying the requirements of the Federal Indian Country Minor NSR
rule, we believe that the final FIP addressing only new and modified
true minor sources in the oil and natural gas production and natural
gas processing segments of the oil and natural gas sector is sufficient
to protect air quality in all of the areas to which it applies
regardless of the current level of oil and natural gas production and
natural gas processing activities in any particular area. The exception
to this statement is the Uintah and Ouray Reservation in Utah. For the
Uintah and Ouray Reservation, we have sufficient concerns with the
impact of emissions from existing sources that we plan to propose a
separate reservation-specific FIP addressing such sources. Similarly,
we will consider promulgating such reservation- or area-specific FIPs
in the future as we believe necessary or appropriate to protect air
quality.
Comment #40: One commenter recommended that specific existing oil
and natural gas production equipment be regulated under the proposed
FIP, including: Reciprocating compressors, centrifugal compressors,
liquids unloading at existing wells, glycol dehydrators, liquid storage
vessels, and pneumatic controllers.
The commenter recommended that the EPA require: (1) The replacement
of the rod packing of existing reciprocating compressors every 36
months or 26,000 hours of operation; (2) replacement of wet seal
configurations on centrifugal compressors with one that utilizes dry
seals or that captures the emissions from the oil degassing unit; (3)
that plunger lifts be required for all liquids unloading; (4) that
dehydrators control VOC by 95 percent with a condenser; (5) that
storage vessels capture VOC emissions via a closed vent system and
route those emissions to a beneficial use; and (6) that high bleed
pneumatic controllers be replaced with low-bleed controllers except
when technically necessary.
Response #40: As stated above, the purpose of the FIP, as proposed
and as finalized herein, is to satisfy the requirements of the Federal
Indian Country Minor NSR rule, and not to regulate existing sources.
Comment #41: One commenter recommended that the proposed FIP be
revised to require regular Leak Detection and Repair (LDAR) surveys at
all new and existing facilities, including well pads, other production
facilities, gathering compressor stations, and natural gas processing
plants that are not covered under 40 CFR part 60, subparts KKK and
OOOO. This commenter recommended that instrument-based LDAR surveys be
carried out quarterly on all sources in the production segment and that
auditory, visual, and olfactory inspections should be performed
monthly.
Response #41: The EPA proposed to add LDAR requirements for well
sites and compressor stations, including gathering and boosting
stations, to 40 CFR part 60, subpart OOOOa, rule in September 2015.\79\
As those requirements have been incorporated into the final subpart
OOOOa regulation \80\--and, thus, the FIP--any LDAR requirements
finalized under 40 CFR part 60, subpart OOOOa, are part of the FIP.
Thus, new and modified true minor sources subject to the FIP will be
required to comply with certain LDAR requirements. As noted in response
to Comments #39 and #40, and for the reasons stated therein, we did not
propose to regulate existing sources under the FIP, and the final FIP
does not regulate existing sources.
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\79\ ``Oil and Natural Gas Sector: Emission Standards for New
and Modified Sources in the Oil and Natural Gas Sector,'' U.S.,
Environmental Protection Agency, 80 FR 56593, September 18, 2015,
https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21023.pdf.
\80\ ``Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed and Modified Sources,'' signed May 12, 2016, http://www.epa.gov/airquality/oilandgas/actions.html.
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L. General Comments (e.g., Administrative, Incorporation by Reference)
1. Proposed Rule
The proposed FIP proposed to require that owners/operators of oil
and natural gas production facilities comply with six federal rules, as
applicable, to reduce emissions of certain pollutants from certain
equipment and processes present at oil and natural gas sources. For
purposes of the proposed FIP, we proposed that compliance with these
rules would effectively satisfy the NSR permitting requirement.
Therefore, we proposed that true minor oil and natural gas sources
subject to these applicable standards would have to comply with these
standards as they currently exist and as they may be amended in the
future, except for those provisions that we specifically excluded. (The
proposed FIP would not have changed the applicability of the specified
standards, nor would it have relieved sources subject to the standards
from having to comply with them, independently of the proposed FIP.)
2. Final Action
In the final FIP, we are using the same approach that we proposed:
To satisfy the FIP, sources must comply with the requirements of the
six federal standards (and two other standards, which are being added
in response to comments), to the extent that they apply, as they exist
at the time construction begins.
3. Comments and Responses
The following discussion contains comments related to general
comments and our responses. The comments and responses are also
addressed in Section 8.0 of the RTC Document.
Comment #42: One commenter noted that the proposed language for
Sec. 49.105 requires that oil and natural gas sources using the FIP
registration process comply with six specific federal NSPS
[[Page 35975]]
and NESHAP regulations. The commenter stated that ``The proposed rule
appears to make an ``evergreen'' incorporation by reference--i.e.,
whenever the oil and natural gas FIP is invoked, the rule appears to
require application of the then-current version of each incorporated
regulation.'' The commenter stated that it is beyond the EPA's
authority to make an evergreen incorporation by reference because any
amendment of the incorporated rules would result in an amendment to the
oil and natural gas FIP, which effectively would be accomplished
without notice and comment rulemaking for the FIP. The commenter
recommended that the EPA incorporate into the oil and natural gas FIP
the rules as they stand at the time the FIP is promulgated, noting that
the FIP can easily be amended later if significant changes are made to
the underlying rules. The commenter recommended that the text of Sec.
49.105 be revised to directly incorporate by reference each of the six
rules.
Response #42: The EPA notes that, under 1 CFR part 51, it cannot
incorporate other regulations by references. It believes the proposed
approach to including the NSPS and NESHAP standards in the FIP is the
most efficient method of maintaining consistency with the applicable
standards. Having to amend the FIP every time a standard is changed
would be burdensome and create ambiguity for sources. We disagree that
we lack the authority to adopt this approach through notice and comment
rulemaking. While some of the requirements with which sources must
comply may change over time, this does not result in a de facto
amendment of the FIP. Rather, the FIP at all times requires compliance
with the eight other rules, to the extent that they apply. Even in the
absence of the FIP, sources subject to any of the eight other rules
would be required to comply with those standards as they exist at the
time the source begins construction. The public will have ample
opportunity to comment on any proposed changes to the standards
themselves. No changes have been made as a result of this comment.
Comment #43: One commenter noted that there is a typographical
error in the reference to the proposed 40 CFR part 60, subpart OOOOa,
standard; the word ``applicable'' should be included, as it is in the
references to the other five regulations.
Response #43: The EPA has corrected the error in the final rule.
M. Other Comments
The following discussion contains comments that did not fall into
another section and were not covered by the proposal but merit a
response. The comments and responses are also addressed in Section 9.0
of the RTC Document.
Comment #44: One commenter stated that the final rule should not
implement a setback requirement. The commenter stated that including a
setback requirement undermines tribal sovereignty, contravenes explicit
requirements embodied in existing Indian mineral leases, and is
contrary to existing BIA regulations. The commenter also noted that the
EPA cannot exceed the authority granted by Congress. The commenter
characterized setback requirements as unnecessary regulations, stating
that the tribes can determine the appropriate setback distance.
Response #44: There was no setback requirement in the proposed FIP,
and the EPA is not adding a setback requirement in the final rule. No
changes have been made as a result of this comment.
Comment #45: Two commenters submitted comments on whether state
requirements should be the basis for the FIP requirements. One
commenter recommended that, if the EPA chooses not to regulate existing
sources throughout Indian country, then the EPA should at least
regulate existing sources located in states that already do so. The
commenter noted that putting state and tribal lands on a level playing
field will protect the health of tribal members. The commenter also
noted that, in order to comply with the requirements of Executive Order
12898, the EPA should regulate existing sources on tribal lands that
are located within states that already regulate existing sources.
Another commenter stated that it is not appropriate to apply state
regulations to Indian country. Reservation- or region-specific FIPs
should be developed that address tribes' concerns and the unique
characteristics of the regions or reservations at issue.
Response #45: As discussed above, and for the reasons stated, the
FIP does not regulate existing sources. Further, a mere desire to
``level the playing field'' is not a sufficient, sole basis for
imposing requlatory requirements on oil and natural gas source owners/
operators. Rather, the EPA would need to determine that the state law
requirements in question were necessary or appropriate. No changes have
been made as a result of this comment.
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. 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. This action establishes a
FIP which serves as a mechanism 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, it does not impose any new obligations or
enforceable duties on any state, local or tribal government or the
private sector. In addition, the information collection activities
contained in the eight rules that are referenced in this FIP have also
been previously approved by OMB.\81\
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\81\ 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 (OMB Control No. 2060-
0074); 40 CFR part 60, subpart IIII: Standards of Performance for
Stationary Compression Ignition Internal Combustion Engines (OMB
Control No. 2060-0590); 40 CFR part 60, subpart JJJJ: Standards of
Performance for Stationary Spark Ignition Internal Combustion
Engines (OMB Control No. 2060-0610); 40 CFR part 60, subpart OOOOa:
Standards of Performance for Crude Oil and Natural Gas Facilities
for which Construction, Modification, or Reconstruction Commenced
after September 18, 2015 (OMB Control No. 2060-0673); 40 CFR part
63, subpart DDDDD: National Emission Standards for Hazardous Air
Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters (OMB Control No. 2060-
0616); 40 CFR part 63, subpart HH: National Emission Standards for
Hazardous Air Pollutants from Oil and Natural Gas Production
Facilities (OMB Control No. 2060-0417); 40 CFR part 63, subpart
ZZZZ: National Emission Standards for Hazardous Air Pollutants for
Stationary Reciprocating Internal Combustion Engines (OMB Control
No. 2060-0548); and 40 CFR part 60, subpart KKKK: Standards of
Performance for New Stationary Combustion Turbines (OMB Control No.
2060-0582).
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[[Page 35976]]
C. 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 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 \82\ 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 FIP
also relieves 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.
---------------------------------------------------------------------------
\82\ ``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.
---------------------------------------------------------------------------
D. 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 provides
one option for sources to comply with the Federal Indian Country Minor
NSR rule. The Federal Indian Country Minor NSR rule itself, not this
FIP, 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 FIP merely provides a
streamlined mechanism for meeting that obligation.
E. 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.
F. 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. The EPA conducted outreach
on this rule via ongoing monthly meetings with tribal environmental
professionals in the development of the proposed action. This action
reflects tribal comments on, 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. Consistent with the EPA Policy on Consultation and
Coordination with Indian Tribes (May 4, 2011),\83\ the EPA offered
consultation on the proposed FIP to elected tribal officials, but no
tribe requested a consultation.
---------------------------------------------------------------------------
\83\ For more information, go to: https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes.
---------------------------------------------------------------------------
One tribal commenter did raise concerns about consultation in their
written comments. The commenter recommended that, in order to develop
an effective and equitable FIP, the EPA should first consult with the
Ute Indian Tribe so that the Tribe can offer its expertise, experience,
and input into developing the FIP. The commenter stated that the EPA
should not attempt to revise the definition of Indian country. The Ute
Indian Tribe requested that the EPA engage the Tribe in additional
government-to-government consultation once the EPA has reviewed
comments on the proposed rule and is prepared to discuss those comments
and any changes to the proposed rule. After the comment period for this
rulemaking closed in December, we followed up on the Ute Indian Tribe's
request and it was determined that the requested consultation was no
longer necessary.
The EPA agrees with the commenter that consultation with affected
tribes is important to development of a successful FIP. The EPA remains
available to consult with tribes in regards to issues that affect them,
or proactively in connection with tribal efforts to develop a TIP. The
EPA has reached out to tribes during the development of this FIP. The
EPA notes that the Mandan, Hidatsa, and Arikara Nation expressed an
interest in working with us to develop this FIP, although the Tribe did
not submit comments on the proposed FIP.
We have made changes to the FIP proposal as a result of tribal
comments. Most notably, at the request of a tribal commenter, we have
clarified that we are not changing the definition of Indian country.
Instead, we are clarifying the geographic applicability of the FIP with
respect to areas of Indian country.
As the FIP is 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 always available for consultation with
any interested tribe.
G. 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 EO 12866, and because the
EPA does not believe the environmental health or safety risks addressed
by this action present a disproportionate risk to children.
H. 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.
I. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This rule implements certain aspects of the
Federal Indian Country Minor NSR rule.
Our primary goal in developing this FIP is to ensure that air
resources in areas covered by the Federal Indian Country Minor NSR rule
will be protected in the manner intended by the CAA. This action will
help ensure air quality protection in areas covered by the Federal
Indian Country Minor NSR rule, by including in a FIP a comprehensive
set of control requirements for new and modified true minor source in
the oil and natural gas production and natural gas processing segments
of the oil and natural gas sector. In addition, through this FIP, we
[[Page 35977]]
seek to establish a mechanism that provides an effective and efficient
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. Under this rule we are
finalizing an approach that enables a streamlined process, which helps
promote economic development by minimizing delays in new construction;
and provides a process comparable to those programs operated outside of
Indian county, which helps tribes compete for new oil and natural gas
production and natural gas processing in areas covered by the Federal
Indian Country Minor NSR rule.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
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 12, 2016.
Gina McCarthy,
Administrator.
For the reasons set forth in the preamble, 40 CFR part 49 is
amended as follows:
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. Subpart C of part 49 is amended by adding an undesignated center
heading and Sec. Sec. 49.101 through 49.105 to read as follows:
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
Sec. 49.101 Introduction.
(a) What is the purpose of Sec. Sec. 49.101 through 49.105?
Sections 49.101 through 49.105 adopt legally and practicably
enforceable requirements to control and reduce emissions of volatile
organic compounds, nitrogen oxides, sulfur dioxide, particulate matter
(PM, PM10, PM2.5), hydrogen sulfide, carbon
monoxide and various sulfur compounds from new and modified true minor
sources in the oil and natural gas production and natural gas
processing segments of the oil and natural gas sector.
(b) Am I subject to Sec. Sec. 49.101 through 49.105? You are
subject to the requirements if you:
(1) Own or operate a new true minor oil and natural gas source or
an existing true minor oil and natural gas source undergoing
modification as determined pursuant to Sec. 49.153(a) that meets the
criteria specified in paragraphs (b)(1)(i) through (v) of this section.
Then you shall comply with the requirements of Sec. Sec. 49.104 and
49.105, unless you obtain a source-specific permit as specified in
paragraph (b)(2) or (3) of this section.
(i) The source is an oil and natural gas source as defined in Sec.
49.102;
(ii) The oil and natural gas source as defined in Sec. 49.102 is
located in Indian country as defined in Sec. 49.152(d), within the
geographic scope of the Federal Minor New Source Review Program in
Indian Country, as specified in Sec. 49.102;
(iii) The oil and natural gas source as defined in Sec. 49.102 is
a new true minor source or a minor modification of an existing true
minor source, as determined under Sec. 49.153;
(iv) The oil and natural gas source as defined in Sec. 49.102
begins construction or modification on or after October 3, 2016; and
(v) The oil and natural gas source as defined in Sec. 49.102 is
not located in a designated nonattainment area.
(2) Owners/operators of sources that meet the criteria specified in
paragraph (b)(1) of this section that choose to obtain a source-
specific permit as specified in Sec. 49.155 before beginning
construction are not required to comply with the requirements of
Sec. Sec. 49.101 through 49.105.
(3) Owners/operators of sources that meet the criteria specified in
paragraph (b)(1) of this section that the Reviewing Authority requires
to obtain a source-specific permit to ensure protection of the National
Ambient Air Quality Standards as specified in Sec. 49.155 before
beginning construction are not required to comply with Sec. Sec.
49.101 through 49.105.
(c) 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.
(d) This Federal Implementation Plan (FIP) does not apply to minor
modifications at major sources.
Sec. 49.102 Definitions.
As used in Sec. Sec. 49.101 through 49.105, all terms not defined
herein shall have the meaning given them in the Clean Air Act, in
subparts A and OOOOa of 40 CFR part 60, in the Prevention of
Significant Deterioration regulations at 40 CFR 52.21, or in the
Federal Minor New Source Review Program in Indian Country at Sec.
49.152. The following terms shall have the specific meanings given
them:
Oil and natural gas source means a stationary source engaged in the
extraction and production of oil and natural gas and/or the processing
of natural gas, including the wells and all related processes used in
the extraction, production, recovery, lifting, stabilization, and
separation or treatment of oil, water, and/or natural gas (including
condensate). Oil and natural gas production and processing components
may include, but are not limited to: Wells and related casing head;
tubing head and ``Christmas tree'' piping; pumps; compressors; heater
treaters; separators; storage vessels; pneumatic devices; stationary
engines; natural gas sweetening; truck loading; dewpoint suppression
skids; natural gas dehydrators; completion and workover processes;
gathering pipelines and related components that collect and transport
the oil, natural gas and other materials and wastes from the wells or
well pads; and natural gas processing plants.
Oil and natural gas well means a single well that extracts
subsurface reservoir fluids containing a mixture of oil and/or natural
gas, and water.
Owner/operator means any person who owns, leases, operates,
controls, or supervises an oil and natural gas source.
Regional Administrator means the Regional Administrator of an EPA
Region or an authorized representative of the Regional Administrator.
Sec. 49.103 Delegation of authority of administration to Indian
tribes.
(a) What is the purpose of this section? The purpose of this
section is to establish the process by which a Regional Administrator
may delegate to a federally-recognized tribe the authority to assist
the EPA with administration of this FIP (Sec. Sec. 49.101 through
49.105). This section provides for administrative delegation and does
not affect the eligibility criteria under Sec. 49.6 for treatment in
the same manner as a state or a tribe's ability to obtain
[[Page 35978]]
approval of a tribal implementation plan under Sec. 49.7.
(b) How does a tribe request delegation? In order to be delegated
authority to assist us with administration of this FIP, the authorized
representative of a federally-recognized tribe must submit a request to
a Regional Administrator that:
(1) Identifies the specific provisions for which delegation is
requested;
(2) Identifies the Indian Reservation or other affected areas of
Indian country for which delegation is requested;
(3) Includes a statement by the applicant's legal counsel (or
equivalent official) that includes the following:
(i) A statement that the applicant is a tribe recognized by the
Secretary of the Interior;
(ii) A descriptive statement that is consistent with the type of
information described in Sec. 49.7(a)(2) demonstrating that the
applicant is currently carrying out substantial governmental duties and
powers over a defined area;
(iii) A description of the laws of the tribe that provide adequate
authority to administer the Federal rules and provisions for which
delegation is requested; and
(iv) A demonstration that the tribal agency that will be
responsible for administration has the technical capability and
adequate resources to administer the FIP provisions for which
delegation is requested.
(c) How is the delegation of administrative authority accomplished?
(1) A Delegation of Authority Agreement will set forth the terms and
conditions of the administrative delegation, will specify the rule and
provisions that the tribe shall be authorized to implement on behalf of
the EPA, and shall be entered into by the Regional Administrator and
the tribe. The Agreement will become effective upon the date that both
the Regional Administrator and the authorized representative of the
tribe have signed the Agreement. Once the delegation becomes effective,
the tribe will be responsible, to the extent specified in the
Agreement, for assisting us with administration of this FIP and shall
act as the Regional Administrator as that term is used in these
regulations. Any Delegation of Authority Agreement will clarify the
circumstances in which the term ``Regional Administrator'' found
throughout this FIP is to refer only to the EPA Regional Administrator
and when it is intended instead to refer to the EPA Regional
Administrator or a federally-recognized tribe.
(2) A Delegation of Authority Agreement may be modified, amended,
or revoked, in part or in whole, by the Regional Administrator after
consultation with a tribe.
(d) How will any Delegation of Authority Agreement be publicized?
The Regional Administrator shall publish a notice in the Federal
Register informing the public of any Delegation of Authority Agreement
with a tribe to assist us with administration of all or a portion of
this FIP and will identify such delegation in the Code of Federal
Regulations. The Regional Administrator shall also publish an
announcement of the Delegation of Authority Agreement in local
newspapers.
Sec. 49.104 Requirements regarding threatened or endangered species
and historic properties.
(a) What are sources required to do to address threatened or
endangered species and historic properties? An owner/operator subject
to the requirements contained in Sec. Sec. 49.101 through 49.105 to
satisfy its obligation under Sec. 49.151(c)(1)(iii)(B) to obtain a
minor NSR permit shall meet either paragraph (c)(1) or (2) of this
section, as appropriate.
(1) Prior completion of assessment by another federal agency. The
owner/operator shall submit to the EPA Regional Office (and to the
relevant tribe for the area where the source is located/locating) valid
documentation demonstrating that prior Endangered Species Act (ESA)
and/or National Historic Preservation Act (NHPA) compliance has been
completed by another federal agency in connection with the specific oil
and natural gas activity operated under this FIP (we would consider a
document no longer valid if the issuing agency has reopened
consultation for the prior approval). The appropriate documents shall
clearly show that the other federal agency had met its obligations
under both the ESA and NHPA. A simple reference to a Record of Decision
or other final decision document will not be acceptable. For listed
species, acceptable documentation can include a copy of a letter or
biological opinion from the U.S. Fish and Wildlife Service addressing
the effects of the project on listed species and critical habitat and
demonstrating compliance by the federal action agency with ESA
requirements. Where the federal action agency prepares a biological
assessment of the action as part of its ESA compliance, that document
shall also be provided to the EPA Regional Office. For historic
properties, acceptable documentation can include: a letter from the
appropriate historic preservation office, or a memorandum of agreement
with that office, addressing the effects of the project on historic
properties and demonstrating compliance by the federal action agency
with NHPA requirements. All documentation shall be attached to the Part
1 Registration Form submitted in accordance with Sec.
49.160(c)(1)(iv).
(2) Screening procedures completed by the owner/operator. The
owner/operator shall submit to the EPA Regional Office (and to the
relevant tribe for the area where the source is located/locating)
documentation demonstrating that it has completed the screening
procedures specified for consideration of threatened and endangered
species and/or historic properties and receive written confirmation
from the EPA stating that it has satisfactorily completed these
procedures. This process of source documentation submittal and the
EPA's confirmation that it has satisfactorily completed the procedures
must occur prior to the source's submittal of its Part 1 Registration
Form pursuant to Sec. 49.160(c)(1)(iv). (The procedures are contained
in the following document: ``Procedures to Address Threatened and
Endangered Species and Historic Properties for the 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,'' https://www.epa.gov/tribal-air/tribal-minor-new-source-review). Review of your
submittal will be conducted by the Reviewing Authority in accordance
with the procedure in paragraphs (a)(2)(i) and (ii) of this section:
(i) Within 30 days of receipt of your documentation, by letter to
you, the Reviewing Authority must provide one of the following
determinations:
(A) The documentation satisfactorily demonstrates completion of the
screening procedures; or
(B) The documentation is not adequate, and additional information
is needed. If the initial submittal is deficient, the Reviewing
Authority will note any such deficiencies and may offer further
direction on completing the screening procedures. Once you have
addressed the noted deficiencies you must resubmit your revised
screening procedure documentation for review. An additional 15-day
review notification period will be used for the Reviewing Authority to
determine whether the listed species and/or historic property screening
procedures have been satisfied. If the Reviewing Authority makes such a
determination,
[[Page 35979]]
they will send you a letter stating that conclusion.
(ii) You must obtain a letter from the Reviewing Authority
indicating that the source has adequately completed the screening
procedures before you can submit the Part 1 Registration Form under
Sec. 49.160(c)(1)(iv) and begin construction under this FIP.
(b) [Reserved]
Sec. 49.105 Requirements.
(a) For true minor sources (and minor modifications at true minor
sources) that are subject to 40 CFR part 63, subpart DDDDD (National
Emission Standards for Hazardous Air Pollutants for Major Sources:
Industrial, Commercial, and Institutional Boilers and Process Heaters),
for purposes of this FIP, sources must comply with all of the
applicable provisions of the standard as written at the time the owner/
operator begins construction on the new true minor source or on the
minor modification at an existing true minor source.
(b) For true minor sources (and minor modifications at true minor
sources) that are subject to 40 CFR part 63, subpart ZZZZ (NESHAP for
Stationary Reciprocating Internal Combustion Engines), for purposes of
this FIP, sources must comply with all of the applicable provisions of
the standard as written at the time the owner/operator begins
construction on the new true minor source or on the minor modification
at an existing true minor source.
(c) For true minor sources (and minor modifications at true minor
sources) that are subject to 40 CFR part 60, subpart IIII (Standards of
Performance for Stationary Compression Ignition Internal Combustion
Engines), for purposes of this FIP, sources must comply with all of the
applicable provisions of the standard as written at the time the owner/
operator begins construction on the new true minor source or on the
minor modification at an existing true minor source, except for
paragraphs (c)(1) through (7) of this section:
(1) Section 60.4200(a)(1)--Am I subject to this subpart? (applies
to manufacturers);
(2) Section 60.4200(b)--Not applicable to a stationary spark
ignition internal combustion engine being tested at an engine test
cell/stand;
(3) Section 60.4201--What emission standards must I meet for non-
emergency engines if I am a stationary compression ignition internal
combustion engine manufacturer?;
(4) Section 60.4202--What emission standards must I meet for
emergency engines if I am a stationary compression ignition internal
combustion engine manufacturer?;
(5) Section 60.4203--How long must my engines meet the emission
standards if I am a manufacturer of stationary compression ignition
internal combustion engines?;
(6) Section 60.4210--What are my compliance requirements if I am a
stationary compression ignition internal combustion engine
manufacturer?; and
(7) Section 60.4215--What requirements must I meet for engines used
in Guam, American Samoa, or the Commonwealth of the Northern Mariana
Islands?
(d) For true minor sources (and minor modifications at true minor
sources) that are subject to 40 CFR part 60, subpart JJJJ (Standards of
Performance for Stationary Spark Ignition Internal Combustion Engines),
for purposes of this FIP, sources must comply with all of the
applicable provisions of the standard as written at the time the owner/
operator begins construction on the new true minor source or on the
minor modification at an existing true minor source, except for
paragraphs (d)(1) through (5) of this section:
(1) Section 60.4230(b)--Not applicable to stationary spark ignition
internal combustion engines being tested at an engine test cell/stand;
(2) Section 60.4230(c)--Exemption for obtaining a Title V permit if
owner or operator of an area source subject to this part;
(3) Sections 60.4231 and 60.4232--Emission standards for
manufacturers;
(4) Sections 60.4238 through 60.4242--Compliance Requirements for
Manufacturers; and
(5) Section 60.4247--Mobile source provisions that apply to
manufacturers of stationary spark ignition internal combustion engines
or equipment containing such engines.
(e) For true minor sources (and minor modifications at true minor
sources) that are subject to 40 CFR part 60, subpart Kb (Standards of
Performance for Volatile Organic Liquid Storage Vessels), for purposes
of this FIP, sources must comply with all of the applicable provisions
of the standard as written at the time the owner/operator begins
construction on the new true minor source or on the minor modification
at an existing true minor source, except for paragraphs (e)(1) and (2)
of this section:
(1) Section 60.112b(c)--Source-specific standard for Merck & Co.,
Inc.'s Stonewall Plant in Elkton, Virginia; and
(2) Section 60.117b(a) and (b)--Delegation of authority.
(f) For true minor sources (and minor modifications at true minor
sources) that are subject to subpart OOOOa (Standards of Performance
for Crude Oil and Natural Gas Facilities for which Construction,
Modification, or Reconstruction Commenced after September 18, 2015),
for purposes of this FIP, sources must comply with all of the
applicable provisions of the standard as written at the time the owner/
operator begins construction on the new true minor source or on the
minor modification at an existing true minor source, except for
paragraphs (f)(1) through (5) of this section:
(1) Section 60.5365a(h)(4)--Existing sources constructed after
August 23, 2011;
(2) Section 60.5370a(c)--Permit exemption;
(3) Section 60.5413a(a)(5)--Exemptions from performance testing--
hazardous waste incinerator;
(4) Section 60.5420a(a)(2)(i)--Advance notification requirements
for well completions; and
(5) Section 60.5420a(a)(2)(ii)--Advance notification requirements
of well completions when subject to state regulation that requires
advance notification.
(g) For true minor sources (and minor modifications at true minor
sources) that are subject to 40 CFR part 63, subpart HH (National
Emission Standards for Hazardous Air Pollutants from Oil and Natural
Gas Production Facilities), for purposes of this FIP, sources must
comply with all of the applicable provisions of the standard as written
at the time the owner/operator begins construction on the new true
minor source or on the minor modification at an existing true minor
source, except for paragraphs (g)(1) through (6) of this section:
(1) Section 63.760(a)(2)--Facilities that process, upgrade or store
hydrocarbon liquids;
(2) Section 63.760(b)(1)(ii)--Each storage vessel with the
potential for flash emissions;
(3) Section 63.760(g)--Recordkeeping for major sources that overlap
with other regulations for equipment leaks;
(4) Section 63.764(c)(2)--Requirements for compliance with
standards for storage vessels;
(5) Seciton 63.766--Storage vessel standards; and
(6) Section 63.769--Equipment leak standards.
(h) For true minor sources (and minor modifications at true minor
sources) that are subject to 40 CFR part 60, subpart KKKK (Standards of
Performance for Stationary Combustion Turbines), for purposes of this
FIP, the
[[Page 35980]]
owner/operator must comply with all of the applicable provisions of the
standard as written at the time the owner/operator begins construction
on the new true minor source or on the minor modification at an
existing true minor source.
0
3. Section 49.151 is amended by revising paragraphs (b)(1), (c)(1)
introductory text, (c)(1)(iii)(A) and (B), and (d)(1), (2), and (4) to
read as follows:
Sec. 49.151 Program overview.
* * * * *
(b) * * *
(1) It satisfies the requirements of section 110(a)(2)(C) of the
Act by establishing a pre-construction permitting program for all new
and modified minor sources (minor sources) and minor modifications at
major sources located in Indian country and by establishing a Federal
Implementation Plan (Sec. Sec. 49.101 through 49.105) for true minor
sources in the oil and natural gas production and natural gas
processing segments that are located in Indian country.
* * * * *
(c) When and where does this program apply? (1) The provisions of
this program apply in all Indian reservation lands where no EPA-
approved program is in place and all other areas of Indian country
where no EPA-approved program is in place and over which an Indian
tribe, or the EPA, has demonstrated that a tribe has jurisdiction,
according to the implementation schedule in paragraphs (c)(1)(i)
through (iii) of this section:
* * * * *
(iii) * * *
(A) If you own or operate an existing true minor source in Indian
country (as defined in Sec. 49.152(d)), you must register your source
with the Reviewing Authority in your area by March 1, 2013. If your
true minor source is not engaged in an oil and natural gas activity and
you commence construction after August 30, 2011, and before September
2, 2014, you must also register your source with the Reviewing
Authority in your area within 90 days after the source begins
operation. If your true minor source is engaged in an oil and natural
gas activity and you commence construction after August 30, 2011, and
before October 3, 2016, you must register your source with the
Reviewing Authority in your area within 90 days after the source begins
operation. You are exempt from these registration requirements if your
true minor source is subject to Sec. 49.138.
(B) If your true minor source is not engaged in an oil and natural
gas activity and you wish to begin construction of a new true minor
source or a minor modification at an existing true minor source on or
after September 2, 2014, you must first obtain a permit pursuant to
Sec. Sec. 49.154 and 49.155 (or a general permit/permit by rule
pursuant to Sec. 49.156, if applicable). If your true minor source is
an oil and natural gas source, as defined in Sec. 49.102, and you wish
to begin construction of a new true minor source or a minor
modification at an existing true minor source on or after October 3,
2016, you must either comply with the Federal Implementation Plan for
sources in the oil and natural gas production and natural gas
processing segments of the oil and natural gas sector that are located
in Indian country (Sec. Sec. 49.101 through 49.105) from the day you
begin construction or opt out of those requirements pursuant to Sec.
49.101(b)(2) and instead obtain a minor source permit pursuant to
Sec. Sec. 49.154 and 49.155 before beginning construction.
Alternatively, you may be required by the EPA, pursuant to Sec.
49.101(b)(3), to obtain a minor source permit pursuant to Sec. Sec.
49.154 and 49.155 before beginning construction. All proposed new
sources or modifications of existing sources are also subject to the
registration requirements of Sec. 49.160, except for sources that are
subject to Sec. 49.138.
* * * * *
(d) * * *
(1) If you begin construction of a new source or modification that
is subject to this program after the applicable date specified in
paragraph (c) of this section without applying for and receiving a
permit pursuant to this program or complying with the Federal
Implementation Plan at Sec. Sec. 49.101 through 49.105 for the oil and
natural gas production and natural gas processing segments of the oil
and natural gas sector, you will be subject to appropriate enforcement
action.
(2) If you do not construct or operate your source or modification
in accordance with the terms of your minor NSR permit or the Federal
Implementation Plan for the oil and natural gas production and natural
gas processing segments of the oil and natural gas sector at Sec. Sec.
49.101 through 49.105, you will be subject to appropriate enforcement
action.
* * * * *
(4) Issuance of a permit or compliance with the Federal
Implementation Plan for the oil and natural gas production and natural
gas processing segments of the oil and natural gas sector at Sec. Sec.
49.101 through 49.105 does not relieve you of the responsibility to
comply fully with applicable provisions of any EPA-approved
implementation plan or Federal Implementation Plan or any other
requirements under applicable law.
* * * * *
0
4. Section 49.152 is amended in paragraph (d) by revising the
introductory text and adding paragraph (4) to the definition of
``Indian country'' and adding in alphabetical order the definition
``Startup of production'' to read as follows:
Sec. 49.152 Definitions.
* * * * *
(d) * * *
Indian country, as defined in 18 U.S.C. 1151, means the following
as applied to this program:
* * * * *
(4) The geographic scope of applicability of this rule is as
specified in Sec. 49.151(c)(1).
* * * * *
Startup of production is as defined at Sec. 60.5430a.
* * * * *
0
5. Section 49.153 is amended by revising paragraphs (a)(1)(i)(B) and
(a)(1)(ii)(B) to read as follows:
Sec. 49.153 Applicability.
(a) * * *
(1) * * *
(i) * * *
(B) Step 2. Determine whether your proposed source's potential to
emit for the pollutant that you are evaluating, (including fugitive
emissions, to the extent they are quantifiable, only if the source
belongs to one of the source categories listed pursuant to section
302(j) of the Act), is equal to or greater than the corresponding minor
NSR threshold in Table 1 of this section. If it is, then you are
subject to the pre-construction requirements of this program for that
pollutant, except that sources in the oil and natural gas production
and natural gas processing segments of the oil and natural gas sector
shall instead comply with the requirements of the Federal
Implementation Plan at Sec. Sec. 49.101 through 49.105, unless you
opt-out of the Federal Implementation Plan pursuant to Sec.
49.101(b)(2) in which case you are subject to the pre-construction
requirements of this program for that pollutant or are required by the
EPA to obtain a minor source permit pursuant to Sec. 49.101(b)(3). If
it is not, then proceed to Step 3 (paragraph (a)(1)(ii)(C) of this
section).
(ii) * * *
[[Page 35981]]
(B) Step 2. Determine whether the increase in allowable emissions
from the proposed modification (calculated using the procedures of
paragraph (b) of this section) would be equal to or greater than the
minor NSR threshold in Table 1 of this section for the pollutant that
you are evaluating. If it is, then you are subject to the pre-
construction requirements of this program for that pollutant, except
oil and natural gas production and natural gas processing sources shall
instead comply with the requirements of the Federal Implementation Plan
at Sec. Sec. 49.101 through 49.105, unless you opt-out of the Federal
Implementation Plan pursuant to Sec. 49.101(b)(2) in which case you
are subject to the pre-construction requirements of this program for
that pollutant or are required by the EPA to obtain a minor source
permit pursuant to Sec. 49.101(b)(3). If it is not, then proceed to
Step 3 (paragraph (a)(1)(ii)(C) of this section).
* * * * *
0
6. Section 49.160 is amended by revising paragraphs (c)(1)(ii) and
(iii), adding paragraph (c)(1)(iv), and revising paragraph (c)(4) to
read as follows:
Sec. 49.160 Registration program for minor sources in Indian country.
* * * * *
(c) * * *
(1) * * *
(ii) If your true minor source is not engaged in an oil and natural
gas activity, and you commence construction after August 30, 2011, and
before September 2, 2014, then you must register your source with the
Reviewing Authority within 90 days after the source begins operation.
If your new true minor source or minor modification of an existing true
minor source is engaged in an oil and natural gas activity, and you
commence construction after August 30, 2011, and before October 3,
2016, then you must register your source with the Reviewing Authority
within 90 days after the source begins operation.
(iii) If your true minor source is not engaged in an oil and
natural gas activity, and you commence construction or modification of
your source on or after September 2, 2014, and your source is subject
to this rule, then you must report your source's actual emissions (if
available) as part of your permit application and your permit
application information will be used to fulfill the registration
requirements described in paragraph (c)(2) of this section. If your
true minor source is engaged in an oil and natural gas activity, and
you commence construction or modification of your source on or after
October 3, 2016, then you must report your source's actual emissions
(if available) as part of your permit application (source-specific
permits), unless you are subject to the Federal Implementation Plan
under Sec. Sec. 49.101 through 49.105 (where the requirements under
paragraph (c)(1)(iv) of this section shall be met). Your permit
application for oil and natural gas production and natural gas
processing sources seeking a source-specific permit will be used to
fulfill the registration requirements described in paragraph (c)(2) of
this section.
(iv) Minor sources complying with Sec. Sec. 49.101 through 49.105
for the oil and natural gas production and natural gas processing
segments of the oil and natural gas sector, as defined in Sec. 49.102,
must submit the Part 1 Registration Form 30 days prior to beginning
construction that contains the information in paragraph (c)(2) of this
section. The Part 2 Registration Form must be submitted within 60 days
after the startup of production as defined in Sec. 49.152(d), which
include emissions information. The source must determine the potential
for emissions within 30 days after startup of production. The
combination of the Part 1 and Part 2 Registration Forms submittals
satisfies the requirements in paragraph (c)(2) of this section. The
forms are submitted to the EPA instead of the application form required
in paragraph (c)(1)(iii) of this section. The forms are available at:
https://www.epa.gov/tribal-air/tribal-minor-new-source-review or from
the EPA Regional Offices.
* * * * *
(4) Duty to obtain a permit or to comply with the Federal
Implementation Plan for sources in the oil and natural gas production
and natural gas processing segments of the oil and natural gas sector.
Submitting a registration form does not relieve you of the requirement
to obtain any required permit, including a pre-construction permit, or
to comply with the Federal Implementation Plan for the oil and natural
gas production and natural gas processing segments of the oil and
natural gas sector if your source or any physical or operational change
at your source would be subject to any minor or major NSR rule.
* * * * *
0
7. Section 49.166 is amended by revising paragraph (c)(1) to read as
follows:
Sec. 49.166 Program overview.
* * * * *
(c) When and where does this program apply? (1) The provisions of
this program apply to new major sources and major modifications at
existing major sources located in nonattainment areas in all Indian
reservation lands where no EPA-approved program is in place and all
other areas of Indian country where no EPA-approved program is in place
and over which an Indian tribe, or the EPA, has demonstrated that a
tribe has jurisdiction, and where there is no EPA-approved
nonattainment major NSR program beginning on August 30, 2011. The
provisions of this program apply only to new sources and modifications
that are major for the regulated NSR pollutant(s) for which the area is
designated nonattainment.
* * * * *
0
8. Section 49.167 is amended by revising the introductory text and
adding paragraph (4) to the definition of ``Indian country'' to read as
follows:
Sec. 49.167 Definitions.
* * * * *
Indian country, as defined in 18 U.S.C. 1151, means the following
as applied to this program:
* * * * *
(4) The geographic scope of applicability of this rule is as
specified in Sec. 49.166(c)(1).
* * * * *
[FR Doc. 2016-11969 Filed 6-2-16; 8:45 am]
BILLING CODE 6560-50-P