[Federal Register Volume 84, Number 93 (Tuesday, May 14, 2019)]
[Rules and Regulations]
[Pages 21240-21253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09829]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-HQ-OAR-2014-0606; FRL-9993-43-OAR]
RIN 2060-AT96
Amendments to Federal Implementation Plan for Managing Air
Emissions From True Minor Sources in Indian Country in the Oil and
Natural Gas Production and Natural Gas Processing Segments of the Oil
and Natural Gas Sector
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing three
amendments to the existing National Oil and Natural Gas Federal
Implementation Plan (National O&NG FIP). This final rule 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 a tribe's
jurisdiction. The National O&NG FIP, which includes a mechanism for
authorizing construction of true minor new and modified oil and natural
gas sources, satisfies the minor source permitting requirement under
the Federal Minor New Source Review (NSR) Program in Indian Country
(Federal Indian Country Minor NSR rule). We are finalizing two
amendments to apply the National O&NG FIP to the Indian country portion
of the Uinta Basin Ozone Nonattainment Area. The purpose of these two
amendments is make available the streamlined authorization to construct
process provided by the National O&NG FIP to the Uintah and Ouray
Reservation (U&O Reservation) as part of the Uinta Basin Ozone
Nonattainment Area. We are also finalizing a minor technical correction
to fix a typographical error in a provision of the National O&NG FIP.
DATES: The final rule is effective on May 14, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2014-0606, at https://www.regulations.gov. All
documents in the docket are listed on the https://www.regulations.gov
website. Although listed in the index, some information is not publicly
available, e.g., Confidential Business
[[Page 21241]]
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 https://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].
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. General Information
A. What entities are potentially affected by this action?
B. Where can I get a copy of this document and other related
information?
C. Effective Date of This Rulemaking
II. Purpose of This Final Action
A. Overview
B. Rationale for Final Action
III. Background
IV. Amendments to Regulations
V. Summary of Comments and Responses
A. Comments Pertaining To Extending the Applicability of the
National O&NG FIP to the Indian Country Portion of the Uinta Basin
Ozone Nonattainment Area
B. Legal Authority To Extend Applicability of the National O&NG
FIP to the Indian Country Portion of the Uinta Basin Ozone
Nonattainment Area
C. Non-Air Quality Impacts of Extending or Not Extending the
National O&NG FIP to the Indian Country Portion of the Uinta Basin
Ozone Nonattainment Area
D. Timing of Nonattainment Designation Process for Newly
Designated Indian Country Areas as it Relates to Timing of This
Rulemaking Action
E. Uintah and Ouray Reservation-Specific FIP
F. Out-of-Scope Comments
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General Information
A. What entities are potentially affected by this action?
Entities potentially affected by this final action include the Ute
Indian Tribe,\1\ as well as new and modified true minor sources that
are in the oil and natural gas production and natural gas processing
segments of the oil and natural gas sector and that are in the Indian
country \2\ portion of the Uinta Basin Ozone Nonattainment Area. All
the Indian country lands located within the Uinta Basin Ozone
Nonattainment Area, of which the EPA is aware, are Ute Indian Tribe
Indian country lands. Further, all of the Ute Indian Tribe Indian
country lands of which the EPA is aware are located within the exterior
boundaries of the U&O Reservation, and these amendments will apply to
such lands. To the extent that there are Ute Indian Tribe dependent
Indian communities under 18 U.S.C. 1151(b) or allotted lands under 18
U.S.C. 1151(c) that are located outside the exterior boundaries of the
Reservation, those lands will not be covered by these amendments.\3\
This action amends the National O&NG FIP, which only applies in Indian
country, and it does not broaden its application to areas outside of
Indian country. This final rule will not apply to any sources not in
Indian country lands, including any areas within the exterior
boundaries of the Reservation that are not Indian country lands.\4\
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\1\ The Ute Indian Tribe is a federally recognized tribe
organized under the Indian Reorganization Act of 1934, with a
Constitution and By-Laws adopted by the Ute Indian Tribe on December
19, 1936, and approved by the Secretary of the Interior on January
19, 1937. See Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs, 83 FR
34863, 34866 (July 23, 2018); 48 Stat. 984, 25 U.S.C. 5123 (IRA);
Constitution and By-Laws of the Ute Indian Tribe of the U&O
Reservation, available at: https://www.loc.gov/law/help/american-indian-consts/PDF/37026342.pdf.
\2\ Indian country is defined in the National O&NG FIP at 40 CFR
49.102, which adopts the definition at section 49.152 of the Federal
Indian Country Minor NSR rule. 40 CFR 49.152 references 18 U.S.C.
1151, which defines Indian country as: (a) All land within the
limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any
patent, and, including rights-of-way running through the
reservation, (b) all dependent Indian communities within the borders
of the United States whether within the original or subsequently
acquired territory thereof, and whether within or without the limits
of a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running
through the same. In 2014, the U.S. Court of Appeals for the D.C.
Circuit addressed the EPA's authority to promulgate the FIP
establishing the Federal Indian Country Minor NSR program (as well
as another NSR permitting program) in Indian country. Oklahoma Dept.
of Environmental Quality v. EPA, 740 F. 3d 185 (D.C. Cir. 2014). In
that case, the court recognized the EPA's authority to promulgate a
FIP to directly administer CAA programs on Indian reservations, but
invalidated the FIP at issue as applied to non-reservation areas of
Indian country in the absence of a demonstration of an Indian
tribe's jurisdiction over such non-reservation area. To address this
court decision, section 49.152 notes that the geographic scope of
the Federal Indian Country Minor NSR rule is addressed at 40 CFR
49.151(c)(1). As described below, because the current revisions to
the National O&NG FIP would apply only on Indian country lands that
are within the exterior boundaries of the U&O Reservation, i.e., on
Reservation lands, they are unaffected by the Oklahoma court
decision.
\3\ Under the Clean Air Act (CAA), lands held in trust for the
use of an Indian tribe are reservation lands within the definition
at 18 U.S.C. 1151(a), regardless of whether the land is formally
designated as a reservation. See Indian Tribes: Air Quality Planning
and Management, 63 FR 7254, 7258 (1998) (``Tribal Authority Rule'');
Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1285-86 (D.C. Cir.
2000). The EPA's references in this FIP to Indian country lands
within the exterior boundaries of the U&O Reservation include any
such tribal trust lands that may be acquired by the Ute Indian
Tribe.
\4\ Because of a series of federal court decisions, there are
some areas within the exterior boundaries of the U&O Reservation
that are not Indian country lands. See Ute Indian Tribe v. Utah, 521
F. Supp. 1072 (D. Utah 1981); Ute Indian Tribe v. Utah, 716 F.2d
1298 (10th Cir. 1983); Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th
Cir. 1985) (en banc), cert. denied, 479 U.S. 994 (1986); Hagen v.
Utah, 510 U.S. 399 (1994); Ute Indian Tribe v. Utah, 935 F. Supp.
1473 (D. Utah 1996); Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th
Cir. 1997), cert. denied, 522 U.S. 1107 (1998); Ute Indian Tribe v.
Utah, 790 F.3d 1000 (10th Cir. 2015), cert. denied, 136 S. Ct. 1451
(2016); and Ute Indian Tribe v. Myton, 835 F.3d 1255 (10th Cir.
2016), cert. denied, 137 S. Ct. 2328 (2017).
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The list in Table 1 is not intended to necessarily be exhaustive,
but rather to provide a guide for readers regarding entities likely to
be potentially affected by this action. To determine whether your
facility could be affected by this action, you should examine the
applicability criteria in the Federal Indian Country Minor NSR rule and
the National O&NG FIP (40 Code of Federal Regulations (CFR) 49.153 and
49.101, respectively). If you have any questions regarding the
applicability of this action to a particular entity, contact the
appropriate person listed in the FOR FURTHER INFORMATION CONTACT
section.
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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 22111 Provision of electric
Compression Ignition) for power to support oil
Electric Power Generation. and natural gas
production where
access to the electric
grid is unavailable.
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a North American Industry Classification System.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this final rule will also be available on the World Wide Web. Following
signature by the EPA Administrator, a copy of this final rule will be
posted in the regulations and standards section of our NSR home page
located at https://www.epa.gov/nsr and on the tribal NSR page at
https://www.epa.gov/tribal-air/tribal-minor-new-source-review.
C. Effective Date of This Rulemaking
This final rule is effective immediately upon publication. The
Administrative Procedure Act (APA) provides that final rules shall not
become effective until 30 days after publication in the Federal
Register, except for, among other exceptions, ``a substantive rule
which grants or recognizes an exemption or relieves a restriction.'' 5
U.S.C. 553(d)(1). In the absence of this final action, the streamlined
authorization to construct process associated with the National O&NG
FIP would be unavailable to oil and natural gas sources constructing or
modifying in the Indian country portion of the Uinta Basin Ozone
Nonattainment Area, and such sources otherwise would have to comply
with the site-specific permitting requirements of the Federal Indian
Country Minor NSR rule to locate or expand on the U&O Reservation. The
amendments finalized today allow such sources to comply with the O&NG
National FIP instead of having to obtain permits under the Federal
Indian Country Minor NSR rule that would otherwise apply in
nonattainment areas because of a limitation on the applicability of the
National O&NG FIP. The purpose of the generally applicable 30-day
delayed effective date is to ``give affected parties a reasonable time
to adjust their behavior before the final rule takes effect.''
Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996). Here,
affected sources are not subject to additional, new requirements such
that they may need time to adjust their behavior before the rule takes
effect, but are relieved of the requirement to follow just one
specified permitting procedure and afforded the option to take
advantage of an otherwise unavailable, streamlined approach to obtain
authorization for construction. Accordingly, this action is excepted
from the generally applicable APA 30-day delayed effective date
requirement.\5\
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\5\ The APA provides another exception to the general
requirement that final rules shall not become effective until 30
days after publication in the Federal Register: Except ``as
otherwise provided by the agency for good cause found and published
with the rule.'' 5 U.S.C. 553(d)(3). In determining whether good
cause exists to waive the 30-day delay, an agency should ``balance
the necessity for immediate implementation against principles of
fundamental fairness which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective
date of its ruling.'' U.S. v Gavrilovic, 551 F.2d 1099, 1105 (8th
Cir. 1977). Here, affected sources are not adversely affected by
making this action effective upon publication and fundamental
fairness does not require that sources be prohibited from taking
advantage of streamlined permitting of the National O&NG FIP for at
least 30 days after publication. To the contrary, sources that can
immediately pursue streamlined authorizations to construct may do so
and sources that opt not to do so may still utilize the site-
specific permitting approach of the Federal Indian Country Minor NSR
rule. Under these circumstances, the EPA also finds that there is
good cause under 5 U.S.C. 553(d)(3) to make this rule effective
immediately upon publication.
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II. Purpose of This Final Action
A. Overview
In this action, after considering the comments received, the EPA is
finalizing amendments to the National O&NG FIP \6\ consistent with the
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authorities and requirements of sections 301(a), 301(d)(4) and
110(a)(2)(C) of the CAA and 40 CFR 49.11. The rule extends coverage of
the FIP to eligible true minor new and modified oil and natural gas
sources in the Indian country portion of the Uinta Basin Ozone
Nonattainment Area, making the FIP available as a mechanism for
authorizing construction in that area. (The Indian country lands within
the Uinta Basin Ozone Nonattainment Area to which these amendments
apply are on the U&O Reservation.) The Uinta Basin is a petroleum-
producing region that contains thousands of active oil and natural gas
wells. Oil and natural gas production activity in the area is the
primary source of anthropogenic emissions of volatile organic compounds
(VOC) and nitrogen oxides (NOX), ozone precursors that react
to form wintertime ozone in the presence of sunlight and widespread
snow cover.\7\
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\6\ ``Federal Implementation Plan for True Minor Sources in
Indian Country in the Oil and Natural Gas Production and Natural Gas
Processing Segments of the Oil and Natural Gas Sector; Amendments to
the Federal Minor New Source Review Program in Indian Country to
Address Requirements for True Minor Sources in the Oil and Natural
Gas Sector,'' U.S. Environmental Protection Agency, 81 FR 35943,
June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
\7\ For more information, see: ``Ozone in the Uinta Basin,''
https://deq.utah.gov/legacy/destinations/u/uintah-basin/ozone/overview.htm, accessed August 16, 2018.
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The National O&NG FIP currently provides a mechanism for
authorizing construction for eligible true minor oil and natural gas
sources wishing to locate or expand in areas of Indian country
designated as attainment, unclassifiable and attainment/unclassifiable.
As promulgated in 2016, it does not apply in areas designated as
nonattainment.\8\ In 2012, the counties in the Uinta Basin were
designated as unclassifiable with respect to the 2008 ozone National
Ambient Air Quality Standards (NAAQS),\9\ and those areas were not
designated as nonattainment with any NAAQS until 2018. Thus, when the
National O&NG FIP became effective on August 2, 2016, it was available
as a streamlined option for authorizing construction in the U&O
Reservation, and owners and operators of eligible oil and natural gas
sources were able to use that streamlined approach from that date.
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\8\ See 40 CFR 49.101(b)(1)(v).
\9\ ``Air Quality Designations for the 2008 Ozone National
Ambient Air Quality Standards; Implementation of the 2008 National
Ambient Air Quality Standards for Ozone: Nonattainment Area
Classifications Approach, Attainment Deadlines and Revocation of the
1997 Ozone Standards for Transportation Conformity Purposes,'' U.S.
Environmental Protection Agency, 77 FR 30087, May 21, 2012, https://www.gpo.gov/fdsys/pkg/FR-2012-05-21/pdf/2012-11618.pdf.
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However, on June 4, 2018, the EPA designated portions of the Uinta
Basin as nonattainment with respect to the 2015 ozone NAAQS, and that
designation became effective on August 3, 2018.\10\ On that date, the
Indian country portion of the nonattainment area fell out of the
National O&NG FIP's coverage. Thus, the area currently lacks a
streamlined mechanism to authorize construction of true minor new and
modified oil and natural gas sources.
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\10\ ``Additional Air Quality Designations for the 2015 Ozone
National Ambient Air Quality Standards,'' U.S. Environmental
Protection Agency, 83 FR 25776, June 4, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-06-04/pdf/2018-11838.pdf.
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With this final action, the EPA is ensuring that the National O&NG
FIP's streamlined approach for authorizing construction and
requirements to comply with various emission standards and standards of
performance will re-apply on the U&O Reservation. The EPA intends to
further address air quality in the Uinta Basin through a separate U&O
Reservation-specific FIP \11\ containing requirements to reduce ozone-
forming emissions from oil and natural gas sources on Indian country
lands within the U&O Reservation. Through that rulemaking, the EPA will
further address the Uinta Basin's air quality situation in an area-
specific manner.
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\11\ The rulemaking is listed on the Office of Management and
Budget's Unified Agenda of Regulatory and Deregulatory Actions. For
more information, go to: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=2008-AA03. In the Agenda, the
rulemaking appears as: ``Federal Implementation Plan for Oil and
Natural Gas Sources; Uintah and Ouray Indian Reservation in Utah.''
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B. Rationale for Final Action
In the preamble to the final June 2016 National O&NG FIP, we
indicated that we could extend the geographic coverage of the FIP to
nonattainment areas, although we anticipated that we would also address
emissions from oil and natural gas sources in separate area-specific
FIPs. Specifically, we stated that the EPA could ``potentially apply
the national FIP's requirements as appropriate to nonattainment areas
where the EPA has established a separate, area-specific FIP.'' \12\ We
described the need to develop area-specific plans if and when areas of
Indian country were designated nonattainment. Further, we specifically
noted concern about the air quality problem in the Uinta Basin and
indicated our expectation to propose a separate U&O Reservation-
specific FIP to address the issue in this particular area.\13\
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\12\ See 81 FR 35943, 35946, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
\13\ See 81 FR 35943, 35975, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
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At the time that the National O&NG FIP was issued there were no
areas officially designated as nonattainment in Indian country with oil
and natural gas activity. In the absence of any such areas but
anticipating the possibility, the EPA initially opted to not apply the
National O&NG FIP in such areas, recognizing that whether and to what
extent it might be extended to apply to nonattainment areas could be
subsequently evaluated in the event of particular, relevant
nonattainment designations, such as in the Uinta Basin. As noted above,
the EPA previously did anticipate that, in the event of a nonattainment
designation applicable to the Uinta Basin, it likely would not extend
the National O&NG FIP until after the EPA had issued an area-specific
nonattainment FIP, but that particular anticipatory view was not
expressly set out in the relevant regulatory text. Now, faced with an
actual nonattainment designation for the Uinta Basin, the EPA is
required to address the question of whether the National O&NG FIP
should be extended to nonattainment areas in the context of an actual
tribal nonattainment area with O&NG activity.
Upon careful consideration of an actual, specific nonattainment
determination, the EPA has determined that, under the particular
circumstances presented, the National O&NG FIP may be extended narrowly
to cover the Indian country portion of the Uinta Basin Ozone
Nonattainment Area. The EPA is not completely eliminating or changing
the applicability parameters of the National O&NG FIP, but instead
creating only a narrow exception to the limitation on its application
in nonattainment areas, such that it may apply in the Indian country
portion of the Uinta Basin Ozone Nonattainment Area.
In light of the actual nonattainment designation, the EPA now has
more carefully assessed the question of the applicability of the
National O&NG FIP in one specific such area--the Indian country portion
of the Uinta Basin Ozone Nonattainment Area--and, unlike what the EPA
preliminarily had anticipated in connection with the June 2016
publication of the National O&NG FIP (but had not been required to
definitively address), the EPA is satisfied that extending the National
O&NG FIP will be adequately protective of air quality for the reasons
stated here.
[[Page 21244]]
That decision is made in consideration of comments received in response
to the EPA's proposal and various other factors, including the extent
and nature of the particular air quality concerns in the Uinta Basin,
the nature of the nonattainment designation (e.g., Marginal
nonattainment), the protections and controls associated with the
National O&NG FIP, and the recent nature and extent of oil and natural
gas development in the Uinta Basin.
Moreover, the CAA provides the EPA with significant authority to
manage air quality in Indian country.\14\ Here, the EPA is exercising
that authority judiciously, consistent with the goals and basic
requirements of the statute. The National O&NG FIP remains inapplicable
to non-attainment areas, but the EPA has used our authority in a
limited manner to extend the reach of the National O&NG FIP to only the
Indian country portion of the Uinta Basin Ozone Nonattainment Area. As
discussed below, we believe that the area will have adequate air
quality protection in the near future as sources expanding or locating
in the U&O Reservation adopt emissions controls required by the
National O&NG FIP. This process is reasonable and adequately protective
of air quality, while ensuring the Ute Indian Tribe can continue to
benefit from economic development and industry can properly plan its
activities. Commenters will have an opportunity to comment on the
measures in the U&O Reservation-specific FIP that we will propose for
the area to further protect its air quality in the longer term.
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\14\ CAA section 110(a)(2)(C) is part of the foundation for the
minor NSR program, and it requires states to submit plans that
include programs for the regulation of ``the modification and
construction of any stationary source.'' Further, section
110(a)(2)(C) of the CAA requires state plans to include ``a program
to provide for the . . . regulation of the modification and
construction of any stationary source within the areas covered by
the plan as necessary to assure that national ambient air quality
standards are achieved, including a permit program as required in
parts C and D of this subchapter.'' CAA section 110(c) also
authorizes the EPA to promulgate a Federal implementation plan in
the absence of a satisfactory state plan. CAA section 301(a)
generally authorizes the EPA to prescribe regulations as are
necessary to carry out its functions under the Act. Section 301(d)
of the CAA authorizes the EPA to treat Indian tribes in the same
manner as states and directs the EPA to promulgate regulations
specifying those provisions of the CAA for which such treatment is
appropriate. (CAA sections 301(d)(1) and (2)). It also authorizes
the EPA, in circumstances in which the EPA determines that the
treatment of Indian tribes as identical to states is inappropriate
or administratively infeasible, to provide by regulation other means
by which the EPA will directly administer the CAA. (CAA section
301(d)(4)). Acting principally pursuant to that authority, on
February 12, 1998, (``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.) the EPA promulgated what we refer to as the Tribal
Authority Rule (TAR). (40 CFR 49.1-49.11). In the TAR, we determined
that it was appropriate to treat tribes in the same manner as states
for all CAA and regulatory purposes except a list of specified CAA
provisions and implementing regulations thereunder. (40 CFR 49.4).
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The narrow extension of the National O&NG FIP reflected in this
rule will provide coverage under the National O&NG FIP for the Indian
country portion of the Uinta Basin Ozone Nonattainment Area now that
the EPA's nonattainment designation of a portion of the Uinta Basin is
effective. The EPA's work on a separate rulemaking to establish a U&O
Reservation-specific FIP remains ongoing and may be completed before
the start of the 2019-2020 winter season in the Uinta Basin.
Nonetheless, while the EPA continues its work on the U&O Reservation-
specific FIP, we have decided to finalize this action before that work
is completed. We believe that this approach is reasonable and
appropriate for several reasons, as discussed in this notice,
including:
First, the National O&NG FIP will help ensure that emissions from
new and modified true minor sources are well-controlled.\15\ In
particular, it requires that all new and modified oil and natural gas
production facilities and natural gas processing plants comply, as
applicable, with eight federal emission standards--five New Source
Performance Standards and three National Emissions Standards for
Hazardous Air Pollutants.\16\ These standards control emissions of VOC,
NOX, sulfur dioxide, particulate matter (PM,
PM10, PM2.5), hydrogen sulfide, carbon monoxide
and various sulfur compounds from the following units/processes in the
oil and natural gas production and natural gas processing segments of
the oil and natural gas sector: Compression ignition and spark ignition
engines; process heaters; combustion turbines; fuel storage tanks;
glycol dehydrators; completion of hydraulically fractured oil and
natural gas wells; reciprocating and centrifugal compressors (except
those located at well sites); pneumatic controllers; pneumatic pumps;
storage vessels; and fugitive emissions from well sites, compressor
stations and natural gas processing plants. We believe that these
controls are sufficiently strict that authorizing construction of new
or modified minor sources, under the relevant circumstances, will allow
only modest, incremental increases in emissions, and will be adequately
protective of air quality in the U&O Reservation during the period of
time following the finalization of this rule, while we complete the
separate rulemaking to establish a U&O Reservation-specific FIP.
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\15\ The CAA does not specifically prohibit the construction of
new minor sources in designated nonattainment areas like the Uinta
Basin Ozone Nonattainment Area. Nor does the CAA specifically
require the EPA to engage in any particular analysis before
authorizing construction of new or modified minor sources in such
areas. Here, the EPA has determined, under the particular
circumstances presented, that extending the National O&NG FIP to the
Indian country portion of the Uinta Basin Ozone Nonattainment Area,
while continuing to develop the U&O Reservation-specific FIP, is
adequately protective of air quality.
\16\ See 40 CFR 49.105.
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Second, we believe this is the case especially considering the
slower growth of oil and natural gas sources on the U&O Reservation
over the past two and a half years since August 2016 when the National
O&NG FIP became effective. Since that time, we have seen limited
construction of new and modified oil and natural gas sources on the U&O
Reservation. Oil and natural gas sources planning to construct on or
after October 3, 2016 have been required to either comply with the
National O&NG FIP or to seek a minor source permit under the generally
applicable (site-specific) permit provisions of the Federal Indian
Country Minor NSR rule.\17\ Sources complying with the National O&NG
FIP are required to meet a two-part registration requirement: The Part
1 Registration Form is submitted 30 days before a source begins
construction and contains information about source location and the
Part 2 Registration Form is submitted within 60 days after the startup
of production and contains information about emissions.\18\
---------------------------------------------------------------------------
\17\ See 40 CFR 49.151(c)(1)(iii)(B).
\18\ See 40 CFR 49.160(c)(1)(iv).
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Since October 2016, we have received only 122 Part 1 Registration
Forms from sources planning on constructing a new or modified true
minor oil and natural gas sources on the U&O Reservation. Of these,
only 41 have submitted Part 2 Registration Forms.\19\ The 41 sources
covered by the Part 2 Forms estimate their total annual allowable (or
potential) emissions to be about 623 tons per year (tpy) of VOC
emissions,
[[Page 21245]]
the chief pollutant of concern for the winter ozone problem in the
Uinta Basin. As compared to the overall VOC emissions inventory in the
U&O Reservation (about 72,718 tpy), the increase in total allowable (or
potential) emissions represented by these 41 sources is very small (0.9
percent average increase per year). And, as a practical matter, it
could be even smaller, since the actual emissions could be less than
the allowable emissions.\20\ We believe that this low growth rate for
new and modified minor sources may continue for the short term, during
which time we plan to complete the U&O Reservation-specific FIP.\21\
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\19\ These numbers (i.e., 122 Part 1 Registration Forms and 41
Part 2 Registration Forms) cover only the period during the National
O&NG FIP applied from October 2016 until the during or Uinta Basin
nonattainment designation became effective in August 2018. Since
August 2018, the EPA has received only one permit application from
Encana Corporation/Newfield Exploration Company concerning a source
modification; other operators have approached the EPA requesting
pre-application meetings to gather information on what would be
required for a permit application (Anadarko and Andeavor, in
addition to Encana Corporation/Newfield Exploration Company).
\20\ See Microsoft Excel spreadsheet titled ``ONGFIP
Registrations_3-7-19.xlsx'' in the docket for this rule (Docket ID
No. EPA-HQ-OAR-2014-0606).
\21\ There are indications, however, that some owners or
operators have taken preliminary steps indicative of longer-range
plans for greater development in the Uinta Basin, including
requesting approvals from the Bureau of Land Management and the
Bureau of Indian Affairs. See, for example: (1) https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=renderDefaultPlanOrProjectSite&projectId=62904&dctmId=0b0003e880ba28f6; (2) https://eplanning.blm.gov/epl-front-office/eplanning/legacyProjectSite.do?methodName=renderLegacyProjectSite&projectId=72548; and (3) https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=renderDefaultPlanOrProjectSite&projectId=53899&dctmId=0b0003e88092c30b.
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Third, it is generally accepted in the field of oil and natural gas
production that a production well's output (and associated emissions)
peaks during the initial period of production and generally declines
thereafter over time. That rate of decline is difficult to precisely
quantify and can vary from well to well and from basin petroleum play
to basin petroleum play. Nonetheless, it is a phenomenon that does
occur and is generally accepted.\22\ For example, the CAA permitting
authorities for several oil and natural gas-producing states allow for
the use of a decline factor in calculating potential emissions of
production sources.\23\ These emissions declines over time are relevant
here because declines in emissions from existing oil and natural gas
sources in the Uinta Basin could at least partially ``offset'' any
increases from new or modified minor sources taking advantage of the
streamlined authorization to construct process in the Indian country
portion of the Uinta Basin Ozone Nonattainment Area.24 25
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\22\ See ``Analysis of Decline Curves,'' J.J. Arps, British-
American Oil Producing Company, Society of Petroleum Engineers,
December 1945, http://www.pe.tamu.edu/blasingame/data/z_zCourse_Archive/P648_15A/P648_15A_Lectures_(working_lectures)/
20150402_P648_15A_Lec_15_AIME_1758_(Arps)_%5bPDF%5d.pdf.
\23\ See ``Oil and Gas Production Facilities Chapter 6, Section
2 Permitting Guidance,'' Revised May 2016, page 42, http://deq.wyoming.gov/media/attachments/Air%20Quality/New%20Source%20Review/Guidance%20Documents/5-12-2016%20Oil%20and%20Gas%20Guidance.pdf.
\24\ This is not to say that the EPA believes that any such
general decline trends are sufficient, alone, such that further
measures or steps will not be needed to further ensure that the
Uinta Basin achieves cleaner air quality and, ultimately,
attainment.
\25\ In addition, the EPA, as ``Reviewing Authority,'' retains
the discretion, even under the National O&NG FIP, to require sources
``to obtain a source-specific permit to ensure protection of the
[NAAQS].'' 40 CFR 49.101(b)(3). Accordingly, contrary to the EPA's
current expectations, in the event that the extension of coverage of
the National O&NG FIP to this nonattainment area may lead to serious
concerns about adequate protection of the NAAQS, the EPA retains the
authority, notwithstanding the potential availability of the
streamlined permitting, to require site-specific permitting.
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Finally, it should be noted that, with the separate U&O
Reservation-specific FIP that the EPA intends to pursue, the approach
we expect to take goes beyond what comparable nonattainment areas
classified as Marginal are required to submit on state-managed lands
when an area under state jurisdiction is designated Marginal
nonattainment for ozone. Under section 182(a) of the CAA, for the Uinta
Basin Marginal Ozone Nonattainment Area for the 2015 ozone standard, a
revised State Implementation Plan (SIP) must be prepared for the non-
Indian country portion of the area. Under section 182(a) of the CAA,
Marginal ozone nonattainment areas are required to submit and/or
address a baseline emissions inventory, a nonattainment NSR permitting
program, and general conformity. With respect to nonattainment NSR, new
and modified major sources are required to obtain 1.1 tons of emissions
offsets for each ton of emissions increase and are subject to stringent
emissions controls (called Lowest Achievable Emission Rate). Under
section 182(a) of the CAA, a State with a marginal nonattainment area
is not required to submit a SIP demonstrating attainment of the ozone
NAAQS. The U&O Reservation-specific FIP the EPA plans to propose to do
so in an expeditious manner is expected to include emissions reductions
measures which will represent more than what comparable areas
classified as Marginal are required to submit on state-managed lands.
And the nonattainment designation for the Uinta Basin Ozone
Nonattainment Area (which includes the U&O Reservation) was only
effective in August of last year.
In conclusion, for the multiple reasons stated, the EPA believes
that this action--along with the EPA's related, forthcoming action to
issue a separate, area-specific FIP--will be protective of air quality
on the U&O Reservation, while maintaining a mechanism for authorizing
construction that helps ensure continued responsible oil and natural
gas production on the U&O Reservation. Even if this action may be
regarded as reflecting some difference from how the EPA previously
anticipated it would proceed, an agency may change its course and must
have ample latitude to adapt their rules and policies to changing
circumstances. When an agency changes course, its action ordinarily is
not subject to a more searching review, and the agency need only
provide a reasoned explanation for its action. To the extent that the
EPA's decision to make a limited extension of the application of the
National O&NG FIP to the Indian country portion of the Uinta Basin
Ozone Nonattainment Area is viewed as a change of course, the EPA's
action is permissible under the CAA and the reasons articulated provide
a sound basis for this action. The EPA has decided that this approach
is a reasonable course, in light of the particular facts and
circumstances associated with this specific nonattainment designation,
the area in question, the recent nature and extent of oil and natural
gas development in the area, the protections afforded by the National
O&NG FIP, and the Agency's on-going development of the area-specific
FIP. We believe that the action is protective of air quality, meets the
requirements of the CAA and provides a much-needed method for
streamlining construction authorizations that the Ute Indian Tribe and
industry are seeking. Finally, based on feedback from the Ute Indian
Tribe leadership, continued oil and natural gas production is important
for the maintenance of the local tribal economy, as the Ute Indian
Tribe is dependent upon oil and natural gas revenue for its economic
prosperity.
III. Background
In the proposed rule,\26\ we provided background information on
several topics relating to this rulemaking. We suggest interested
parties consult the proposed action for that background information, as
we are not repeating it here. The following topics were covered in the
background discussion: (1) Indian country FIPs, including the Federal
Indian Country Minor NSR rule and the National O&NG FIP; (2) areas for
which the EPA received comment on the National O&NG FIP relevant to
this
[[Page 21246]]
action; (3) the Uinta Basin air quality and nonattainment designation;
and (4) the authority for this action. In terms of updates on the
background information since the proposal, the nonattainment
designation for the Uinta Basin Ozone Nonattainment Area has been
finalized and, as noted, became effective on August 3, 2018.\27\
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\26\ See 83 FR 20775, 20781-20784, May 8, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-05-08/pdf/2018-09652.pdf.
\27\ See 83 FR 25776, June 4, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-06-04/pdf/2018-11838.pdf.
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IV. Amendments to Regulations
For the reasons described above, this action executes two
amendments to the National O&NG FIP to extend its application to
eligible true minor oil and natural gas sources in the Indian country
portion of the Uinta Basin Ozone Nonattainment Area. The FIP provides a
streamlined mechanism for authorizing construction of oil and gas
sources. We also are also correcting a typographical error in Sec.
49.101(c).
First, this action makes two amendments to the regulation to extend
the scope of the FIP to include the area described above. In the first
of these two amendments, this action adds a new subparagraph to the
CFR, to be codified at Sec. 49.101(e). In the new subparagraph, we
narrowly extend the geographic scope of the National O&NG FIP to cover
eligible true minor oil and natural gas sources seeking to locate or
expand in the Indian country portion of the Uinta Basin Ozone
Nonattainment Area. This extension of coverage to this one
nonattainment area does not otherwise alter the National O&NG FIP's
current geographic coverage of attainment, unclassifiable and
attainment/unclassifiable areas regarding the rest of Indian country
across the nation. The geographically limited extension is in addition
to the current coverage. Under this amendment, true minor oil and
natural gas sources in the oil and natural gas production and natural
gas processing segments of the oil and natural gas sector wishing to
locate or expand in the Indian country portion of the Uinta Basin Ozone
Nonattainment Area will also have to meet the criteria under Sec.
49.101(b)(1) to qualify, except for Sec. 49.101(b)(1)(v). Section
49.101(b)(1)(v) contains the requirement governing the primary
geographic scope of the National O&NG FIP and prevents the FIP from
applying in the Uinta Basin Ozone Nonattainment Area. The new Sec.
49.101(e) displaces existing Sec. 49.101(b)(1)(v) for Indian country
within the Uinta Basin Ozone Nonattainment Area--and only for that area
of Indian country.
To accomplish this extension, it is also necessary to execute a
second amendment to the regulation, to define the boundaries of the
Uinta Basin Ozone Nonattainment Area to which the National O&G FIP
applies under this final rule. To accomplish this, the EPA incorporates
the boundaries for the nonattainment area for the Uinta Basin, or areas
within the Uinta Basin, as defined at 40 CFR part 81, Designations of
Areas for Air Quality Purposes. This action does not govern the
development and final decision of the boundaries for the Uinta Basin
Ozone Nonattainment Area. Instead, the regulatory and other processes
that have occurred within and outside the EPA and between the EPA and
state and tribal governments determined those boundaries, and this
action takes those boundaries as given.
Finally, this action makes a typographical correction to Sec.
49.101(c), which currently reads: ``When must I comply with Sec. Sec.
49.101 through 49.105? You must comply with Sec. Sec. 49.101 through
49.101 on or after October 3, 2016.'' This provision is supposed to
reference Sec. Sec. 49.101 through 49.105, as the title indicates. We
are correcting it to read: ``When must I comply with Sec. Sec. 49.101
through 49.105? You must comply with Sec. Sec. 49.101 through 49.105
on or after October 3, 2016.'' The EPA believes that this is a
correction of a self-evident scrivener's error (in that EPA plainly
intended the second ``101'' to instead read ``105'') and does not
constitute a substantive change of the existing regulatory provision.
V. Summary of Comments and Responses
A. Comments Pertaining to Extending the Applicability of the National
O&NG FIP to the Indian Country Portion of the Uinta Basin Ozone
Nonattainment Area
Four oil and natural gas industry commenters, one Indian tribe and
one state agency commenter supported extending the applicability of the
National O&NG FIP to the Indian country portion of the Uinta Basin
Ozone Nonattainment Area. As summarized and discussed in the following
paragraphs, these commenters cited several main arguments in their
support of the amendments.
Comment #1: Two oil and natural gas industry commenters and one
Indian tribe commenter agreed with the EPA that extending the National
O&NG FIP is an appropriate path forward while the agency works through
the nonattainment process for the area.
One oil and natural gas industry commenter stated that the
amendments are a reasonable exercise of the EPA's discretion in
regulating minor source emissions and that the proposed action is a
sensible solution to address emissions from minor source oil and gas
operations on tribal land. One oil and natural gas industry commenter
and one Indian tribe commenter expressed that the proposed action is a
reasonable and environmentally protective way to address emissions
during the period between designation and implementation of the
attainment plan, while preventing the development in the Basin from
coming to a standstill.
Two oil and natural gas industry commenters and one state agency
commenter agreed with the EPA's identification of several consequences
of not extending the National O&NG FIP to the Indian country portion of
the Uinta Basin Ozone Nonattainment Area. The commenters stated that
many producers that operate in Indian country have come to rely on the
streamlined approach that is available through the National O&NG FIP
and will now be required to seek site-specific permits for new and
modified sources. The commenters asserted that this would subject O&NG
development on the U&O Reservation to variable and uncertain timelines
and requirements. One state agency commenter added that, based on
discussions with Utah's Division of Air Quality about future permitting
requirements for companies that are operating on projects that overlap
in and out of Indian country and in and out of attainment and
nonattainment areas, it is complicated for government attorneys to
understand, and a challenging issue for industry.
Response #1: After considering the comments, the EPA agrees to
extend the coverage of the National O&NG FIP to the Indian country
portion of the Uinta Basin Ozone Nonattainment Area. We believe that
extending coverage is reasonable and can be done in an environmentally
protective manner. We recognize that the site-specific permitting that
is available as an alternative to the National O&NG FIP poses less
certain and more variable timetables and can be more challenging and
complicated than the streamlined process. We believe that extending the
National O&NG FIP and resuming streamlined authorizations to construct
that had been available in the area before the nonattainment
designation will help alleviate these concerns.
Comment #2: Four oil and natural gas industry commenters and one
Indian tribe commenter agreed with the EPA's position that extending
the National O&NG FIP would provide a much-needed, streamlined
construction authorization mechanism for the U&O
[[Page 21247]]
Reservation. One oil and natural gas industry commenter and one Indian
tribe commenter noted that it is important that there be a streamlined
mechanism for obtaining construction authorization in the Uinta Basin
so there is no gap in coverage while the EPA and the Ute Indian Tribe
develop and adopt a U&O Reservation-specific FIP for the U&O
Reservation. One Indian tribe commenter noted that without the adoption
of the proposed amendments to the National O&NG FIP, the EPA would face
the administrative burden of processing hundreds of true minor source
permits within a short time frame. One oil and natural gas industry
commenter noted that the amendments allow the Agency to focus its
resources on a reservation-specific regulatory scheme.
Response #2: After considering the comments, the EPA agrees to
extend the coverage of the National O&NG FIP to the Indian country
portion of the Uinta Basin Ozone Nonattainment Area. We believe that
extending coverage of the National O&NG FIP will provide a more
efficient and certain path for affected true minor sources. We have
sought to minimize the gap in streamlined construction authorizations
that began after the nonattainment designation became effective, and we
are also working on completing the U&O Reservation-specific FIP. We
also agree that extending the National O&NG FIP will enable the Agency
to focus on completing the U&O Reservation-specific FIP, instead of
having to process site-specific permits.
Comment #3: Three oil and natural gas industry commenters noted
that the extension of the National O&NG FIP will help to make sure that
the Ute Indian Tribe is treated fairly by avoiding a potential
disparity in the regulatory landscape in the newly designated
nonattainment area in comparison to surrounding areas and other areas
of Indian country covered by the National O&NG FIP. One oil and natural
gas industry commenter, referring to the Utah Division of Air Quality's
streamlined Permit by Rule process, stated that the extension of the
National O&NG FIP will help end the EPA's allegedly discriminatory
approach to the development of Tribal minerals.
Response #3: Finalizing this proposal and extending the streamlined
authorization process to the Indian country portion of the Uinta Basin
Ozone Nonattainment Area will enhance consistency by ensuring that
there are similar authorization processes available to sources in
Indian country and other areas. In particular, in the portion of the
Uinta Basin under Utah jurisdiction, the state has a permit by rule
program available that is also streamlined, like the streamlined
authorization to construct process provided by the National O&NG FIP.
Oil and natural gas sources wishing to construct on lands in the Uinta
Basin under Utah jurisdiction are subject to the Utah Administrative
Code Chapter R307-401-10 (Permit: New and Modified Sources. Source
Category Exemptions).\28\ Under Utah's rules, such oil and natural gas
sources that are not major sources can simply register with the state
and then proceed with construction.\29\ This process is substantially
similar to what is required of eligible true minor sources that wish to
gain coverage under the National O&NG FIP.
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\28\ See https://rules.utah.gov/publicat/code/r307/r307.htm for
a list of, and links to, all effective rules under Title R307.
Environmental Quality, Air Quality.
\29\ Oil natural gas sources that include well sites (as defined
at 40 CFR 60.5430a), including centralized tank batteries, that are
not major sources (as defined in Utah Administrative Code R307-101-
2) and that register with the UDAQ as required by Utah
Administrative Code R307-505 (Oil and Gas Industry: Registration
Requirements), are exempt from the requirement to obtain an approval
order (the UDAQ equivalent of a site-specific NSR permit). The
registration program at Utah Administrative Code R307-505 requires
the operator of a non-major well site to certify that they are in
compliance with a suite of emission unit-specific requirements in
Utah Administrative Code R307-506 through R307-510, as applicable
(i.e., Oil and Gas Industry Storage Vessels, Dehydrators, VOC
Control Devices, Leak Detection and Repair and Natural Gas Engines).
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The EPA does not agree with the comment that we have engaged in a
discriminatory approach relative to the development of tribal minerals.
With respect to oil and natural gas new or modified minor sources in
Indian country, since October 2016 (and up to August 2018), the
streamlined authorization process the National O&NG FIP has been
available. As noted, that process is comparable to Utah's permit by
rule approach in terms of the degree to which it streamlines the
relevant construction authorization process.
Comment #4: Three oil and natural gas industry commenters and one
Indian tribe commenter agreed with the EPA's position that use of the
National O&NG FIP will continue to be adequately protective of air
quality while the EPA follows the process detailed under the CAA that
allows time to develop an attainment plan. Specifically, one oil and
natural gas industry commenter noted that the National O&NG FIP
requires compliance with eight federal emission standards that are
required for all new and modified sources and, thus, will allow de
minimis incremental increases in emissions, while the EPA follows the
CAA nonattainment process. One Indian tribe commenter stated that the
proposed action correctly noted that the air quality issues in the
Uinta Basin will not manifest until winter, and, therefore, these
amendments are a reasonable step to protect development in the Uinta
Basin from coming to a standstill, while protecting public health and
the environment.
Another oil and natural gas industry commenter cited the EPA's
language in the EPA's proposal that the ozone problems in the Uinta
Basin are limited to the winter season and that preliminary monitoring
data from the 2017-2018 winter ozone season across the region shows
values well below the 2015 ozone NAAQS, and asserted that extending the
current National O&NG FIP to Uinta Basin now will not exacerbate the
Basin's wintertime ozone air quality problem in the future.
Response #4: The EPA agrees that the eight emissions standards are
sufficiently strict that authorizing construction of new or modified
minor sources, under the relevant circumstances, will allow only
modest, incremental increases in emissions, and will be adequately
protective of air quality in the U&O Reservation during the period in
which we establish the U&O Reservation-specific FIP. As noted above in
Section II.B. where we compared the process we are adopting here (and
with the U&O Reservation-specific FIP to follow) to what is required in
the CAA for Marginal ozone nonattainment areas, the approach we intend
to take is not unlike the CAA process that occurs when an area under
state jurisdiction is designated nonattainment. However, under the CAA,
as a Marginal nonattainment area, an attainment plan--or SIP
demonstrating attainment--is not required.
The EPA agrees that air quality issues in the Uinta Basin will not
manifest until winter and that these amendments are a reasonable step
to ensure development in the Uinta Basin from coming to a standstill,
while protecting public health and the environment. For the reasons
stated above, we believe that the National O&NG FIP will be protective
of air quality after this rule is finalized and until the U&O
Reservation-specific FIP is finalized (which may be before the next
winter ozone season).\30\
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\30\ Ozone air quality levels in the Uinta Basin during the
winter ``ozone season'' can be quite variable. For example, in 2017-
18, preliminary monitoring data for the winter ozone season from
across the region show values well below the 2015 ozone NAAQS.
Preliminary information from the recent 2018-19 season, on the other
hand, show values above the standards. See Microsoft Excel
spreadsheets titled: ``Uinta Basin Ozone Data, Dec. 2017-Feb.
2018,'' ``2018 Duchesne_data.csv,'' ``2019 Duchesne_data.csv,''
``2018 Uintah_data.csv,'' and ``2019 Uintah_data.csv,'' Docket No.
EPA-HQ-OAR-2014-0606.
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[[Page 21248]]
Comment #5: Four oil and natural gas industry commenters and one
Indian tribe commenter agreed with the EPA's concerns that the U&O
Reservation would be adversely affected if the National O&NG FIP did
not apply to nonattainment areas. One oil and natural gas industry
commenter noted that, due to permitting delays in the affected area,
operators may divert operating capital to areas where there are more
predictable regulatory requirements in state jurisdiction where the
Utah Division of Air Quality ``Permit by Rule'' exists, thus denying
the economic benefits of oil and gas developments to the U&O
Reservation. One oil and natural gas industry commenter and one Indian
tribe commenter expressed that the amendments will encourage a smooth
transition (with the streamlined authorization approach) in allowing
continued oil and gas operations to occur on tribal lands within the
Uinta Basin in the wake of the nonattainment designation, as well as
prevent further regulatory burdens that have historically served as a
disincentive for the development of oil and gas resources on the U&O
Reservation.
Response #5: After considering the comments, we believe that the
approach in the final rule will both protect air quality and avoid
potential permitting delays that could accompany site-specific
permitting, which may lead operators to look outside the U&O
Reservation for oil and gas development opportunities. In addition,
through this rulemaking, the EPA is seeking to ensure a consistent set
of regulatory requirements for oil and natural gas activity between
Indian country lands within the U&O Reservation and lands under state
of Utah jurisdiction. Finally, the EPA agrees that this final rule will
help with the transition for the U&O Reservation from being in an area
designated as unclassifiable to being included in the Uinta Basin Ozone
Nonattainment Area.
Comment #6: Three oil and natural gas industry commenters and one
Indian tribe commenter agreed with the EPA's position that use of the
National O&NG FIP, after designation of the Uinta Basin as an ozone
nonattainment area, will continue to be adequately protective of air
quality while the EPA follows the process detailed under the CAA that
allows areas time to develop an attainment plan.
Response #6: After considering the comments, the EPA agrees with
the comment in part. We believe that the National O&NG FIP will be
protective of air quality as we develop the U&O Reservation-specific
FIP, which we intend to issue by the start of the next winter ozone
season. Specifically, the terms and conditions of the construction
authorization permitted by the National O&NG FIP will help protect air
quality. To further protect air quality in the Uinta Basin, the EPA
continues to develop the U&O Reservation-specific FIP.
Comment #7: One oil and natural gas industry commenter expressed
that the industry's objective is that final regulations protect the
environment and the public and cost-effectively address VOC emissions
that as a co-benefit also reduce methane emissions, without
unnecessarily hampering manufacturing and business expansion. According
to the commenter, this objective can be met while the private sector
develops and delivers more natural gas and oil to its customers.
According to the oil and natural gas industry commenter, their efforts
are producing real results based on the EPA's latest Greenhouse Gas
Inventory which continues to show a downward trend in methane
emissions, even as U.S. oil and natural gas production rose
dramatically. The commenter reported that the inventory report
indicates that methane emissions from natural gas systems and petroleum
systems increased 14 percent between 1990 and 2016, at a time when the
natural gas output increased by more than 50 percent. This is in
addition to the U.S. continuing to lead the world in reducing carbon
emissions, which are at 25-year lows, largely due to the increased use
of natural gas.
Response #7: After considering the comments, the EPA believes that
it is possible, as the commenter suggests, to protect the environment
and public health by controlling VOC emissions from oil and natural gas
activity in a cost-effective manner, while also ensuring responsible
oil and natural gas development. The EPA also recognizes the trends
found in an EPA report on greenhouse gas emissions, but because they
are not relevant to this rulemaking we find it unnecessary to provide a
response here.\31\
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\31\ Inventory of U.S. Greenhouse Gas Emissions and Sinks 1990-
2016, U.S. Environmental Protection Agency, EPA 430-R-18-003, April
2018, https://www.epa.gov/sites/production/files/2018-01/documents/2018_complete_report.pdf.
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Comment #8: Three oil and natural gas industry commenters and one
Indian tribe commenter were opposed to a temporary implementation of
the proposed amendments. One oil and natural gas industry commenter
noted that classifying this proposal as a permanent construction
authorization mechanism for the Uinta Basin will conserve resources as
the Agency will not have to reinvent a new scheme when a temporary
extension would expire. One oil and natural gas industry commenter and
one Indian tribe commenter stated that they agree with the EPA's
concern that a temporary extension of the National O&NG FIP could have
a significant effect on oil and natural gas activity on the U&O
Reservation, with a resulting serious effect on the revenue which the
Ute Indian Tribe relies upon for its livelihood.
Response #8: After considering the comments, the EPA agrees to
finalize the extension of the National O&NG FIP to the Indian country
portion of the Uinta Basin Ozone Nonattainment Area, without expressly
providing that it is temporary, to provide certainty to the Ute Indian
Tribe and to the affected oil and natural gas companies that operate in
the U&O Reservation. Deciding not to make the extension temporary will
help the tribal leadership plan their services and activities on the
U&O Reservation, knowing that they can rely on the important revenue
from oil and natural gas activity. It also helps the affected oil and
natural gas companies operating in the U&O Reservation as they plan
their activities in the Uinta Basin and decide where to locate or
expand their activities. The EPA believes that extending the
streamlined authorization approach to the Indian country portion of the
Uinta Basin Ozone Nonattainment Area will be adequately protective of
air quality for the reasons outlined in Section II.B. above.
B. Legal Authority To Extend Applicability of the National O&NG FIP to
the Indian Country Portion of the Uinta Basin Ozone Nonattainment Area
Comment #9: One oil and natural gas industry commenter stated that
the EPA has the legal authority to extend the National O&NG FIP to an
area designated as nonattainment. According to the commenter, the EPA
has legal authority to extend the National O&NG FIP to all parts of the
U&O Reservation, including nonattainment areas, citing CAA section
301(d) as granting the EPA authority to treat Indian tribes the same as
states under the CAA, when appropriate. The commenter, quoting language
from EPA's published proposal
[[Page 21249]]
(83 FR at 20780), asserts that this authority extends to all areas,
including nonattainment areas.
The commenter asserted that the CAA's nonattainment provisions are
consistent with the EPA's proposal to apply the existing National O&NG
FIP to address the time between designation and implementation of the
attainment plan for the Uinta Basin. According to the commenter, CAA
sections 110, 172, and 173 require nonattainment areas to have
permitting programs for new or modified major stationary sources in
nonattainment areas and, for both attainment and nonattainment areas,
regulation of all stationary sources as necessary to assure achievement
of the NAAQS. The commenter asserted that the CAA does not establish
specific requirements for how nonattainment implementation plans should
address true minor sources and that states (and the EPA) have wide
discretion in addressing true minor sources. According to the
commenter, the CAA does not require reservation-specific or area-
specific FIPs, let alone require them immediately after nonattainment
designations are made.
The commenter stated that the EPA's statements in the proposed and
final rule issuing the National O&NG FIP do not preclude this action
and the proposed extension is not contrary to such previous statements
because the EPA currently lacks the necessary information and input to
issue an area-specific FIP. The commenter stated that the proposal will
protect air quality and allow for oil and natural gas development while
the EPA undergoes the process of determining how to bring this area
back into attainment and that the EPA's position stated in the National
O&NG FIP preamble concerning the need for an area-specific FIP before
extending the National O&NG FIP to nonattainment areas is not required
by the CAA and does not bind the EPA in this rulemaking, citing FCC v.
Fox Television Stations, Inc.
Response #9: After considering the comments, the EPA agrees that,
consistent with the authorities and requirements of sections 301(d)(4)
and 110(a)(2)(C) of the CAA and 40 CFR 49.11, we possess the authority
to take this action amending the National O&NG FIP to extend it to
eligible true minor oil and natural gas sources in the Indian country
portion of the Uinta Basin Ozone Nonattainment Area. In addition, we
recognize that the CAA does not specifically or expressly prescribe
detailed requirements for the treatment of new and modified true minor
sources in nonattainment areas and that the EPA has discretion in
developing measures for Indian country nonattainment areas. To the
extent that the commenter's statements relate to the timing or content
of an area-specific FIP, those comments are better addressed in the
context of that rulemaking, but the EPA does not agree that it is
necessary to gather significantly more information before proceeding to
propose the U&O Reservation-specific FIP.
C. Non-Air Quality Impacts of Extending or Not Extending the National
O&NG FIP to the Indian Country Portion of the Uinta Basin Ozone
Nonattainment Area
Comment #10: Two oil and natural gas industry commenters stated
that amending the National O&NG FIP will facilitate the continued
development of tribal minerals and land and provide an uninterrupted
and valuable source of income to the Ute Indian Tribe. One of the
commenters further stated that the development of oil and natural gas
resources is a huge economic opportunity and job creator for the Ute
Indian Tribe and is vitally important.
Response #10: After considering the comments, the EPA recognizes
that revenue from oil and natural gas activity in the U&O Reservation
is important for the Ute Indian Tribe's prosperity. It provides for
economic development and services for tribal members. As the EPA crafts
solutions for the U&O Reservation's air quality challenges, the EPA
remains cognizant of these facts.
Comment #11: Two oil and natural gas industry commenters noted that
one benefit of these actions is the creation of a needed streamlined
mechanism for authorizing oil and gas construction in the Uinta Basin
Indian country and the U&O Reservation.
One oil and natural gas industry commenter added that the proposal
conserves Agency resources because the Ute Indian Tribe and the EPA
will not have to process and issue site-specific permits, which allows
the Agency to instead focus time and energy on working with the Ute
Indian Tribe and stakeholders to develop an appropriate U&O
Reservation-specific FIP. This commenter expressed that the proposal
will achieve consistency between Uinta Basin Indian country and basin
lands under state of Utah jurisdiction by creating a ``self-executing''
authorization scheme for new and modified minor sources of emissions in
the tribal air shed that is similar to the current state of Utah's R-
307 series of rules for oil and natural gas production or Permit by
Rule (``PBR'') Program, for state-managed areas.
Response #11: The EPA generally agrees with these comments. This
action will provide a streamlined construction authorization mechanism,
allowing the EPA to focus its efforts on issuing the U&O Reservation-
specific FIP and helping to achieve consistency of approach for
authorizing sources to construct on Indian country lands within the
Uinta Basin versus adjacent Utah state-managed lands, as discussed
above. The EPA does not agree, however, that this action will conserve
Ute Indian Tribe permitting resources, because the Ute Indian Tribe is
not currently authorized to issue CAA minor source permits on its
Reservation.
D. Timing of Nonattainment Designation Process for Newly Designated
Indian Country Areas as it Relates to Timing of This Rulemaking Action
Comment #12: Two oil and natural gas industry commenters encouraged
the EPA to finalize this rule revision as close to the nonattainment
designation becoming effective on August 3, 2018, as possible to
minimize any gaps between the effective dates of both actions. One oil
and natural gas industry commenter noted that consequences and
hardships can be avoided by meeting that date, such as the absence of a
streamlined construction authorization mechanism, the significant
pressure and time constraints associated with processing individual
permits under a novel site-specific permitting program, and redirection
of Agency focus from development of the reservation-specific
regulations.
Response #12: After considering the comments, the EPA agrees and
has sought to minimize the lapse in streamlined authorizations to
construct that started after August 3, 2018. Because there is a gap,
though, the EPA has committed the staff resources as needed to process
any site-specific permits in a timely manner. In addition, until the
nonattainment area designation became effective, sources could have
taken advantage of the streamlined mechanism of the existing National
O&NG FIP, provided such sources were able to meet certain registration
form submittal deadlines.\32\
---------------------------------------------------------------------------
\32\ As noted, the National O&NG FIP registration requirement
consists of two parts: Part 1 is submitted 30 days before a source
begins construction; Part 2 is submitted within 60 days after the
startup of production. In our view, Part 1 Registration Forms that
were submitted before the effective date of the nonattainment
designation (August 3, 2018) allow sources to begin construction
after the effective date of the designation. Thus, Part 1
Registration Forms filed prior to the nonattainment designation
taking effect (on August 3, 2018) allowed construction to begin
after that date. (It is important to note that any such sources may
be subject to future control under a U&O Reservation-specific FIP.)
See correspondence: Letter from Peter Tsirigotis, Director, Office
of Air Quality and Standards, EPA, to Doug Jordan, Newfield
Exploration Company, June 6, 2018, in Docket ID No. EPA-HQ-OAR-2014-
0606.
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[[Page 21250]]
E. Uintah and Ouray Reservation-Specific FIP
1. Timing of U&O Reservation-Specific FIP
Comment #13: One oil and natural gas industry commenter supported
the EPA's intention to use the same process for nonattainment areas on
tribal lands as the states generally use for all other nonattainment
areas. The commenter agreed with the EPA that the proposal is similar
to how nonattainment areas in states are treated, where there is a gap
in time between the nonattainment designation and the deadline for the
attainment plan. The commenter expressed the view that the process used
on tribal lands should align with other nonattainment areas, which
allows for a period of time to develop a plan to achieve attainment.
The commenter argued that states are not under any obligation to
immediately have an implementation plan for nonattainment areas and
there is no reason that the EPA should single out the U&O Reservation
for different treatment by imposing this strict timeline. According to
the commenter, the EPA should focus its efforts on developing the best
plan to reach attainment and this planning process must involve
appropriate stakeholder outreach and input.
Response #13: While the U&O Reservation-specific FIP is an
important component of the EPA's approach to addressing the U&O
Reservation as part of the Uinta Basin Ozone Nonattainment Area, this
rulemaking is not the appropriate context in which to address comments
on the specifics of the forthcoming U&O Reservation-specific FIP.
Therefore, as a general matter, the EPA will not be responding, here,
to comments on any such U&O Reservation-specific FIP, including the
timing of such FIP. Concerning the development process and stakeholder
engagement for that FIP, the EPA is committed to working closely with
the Ute Indian Tribe, as well as the state of Utah and other interested
stakeholders.\33\
---------------------------------------------------------------------------
\33\ For more discussion of stakeholder engagement, see the
response to Comment #15.
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2. Consistency With Utah's R-307 Series of Rules for Oil and Natural
Gas Production
Comment #14: One oil and natural gas industry commenter
acknowledged the EPA's commitment to develop a U&O Reservation-specific
FIP and encouraged the EPA to develop the FIP with requirements that
are equivalent to or consistent with the Utah Division of Air Quality
Permit by Rule to mitigate potential disparities between state and
federal air jurisdictions.
Response #14: As noted, while the U&O Reservation-specific FIP is
an important part of the EPA's approach to the U&O Reservation as part
of the Uinta Basin Ozone Nonattainment Area, this rulemaking is not the
appropriate context in which to address comments on the specifics of
the forthcoming U&O Reservation-specific FIP. Therefore, as a general
matter, the EPA will not be responding, here, to comments concerning
such FIP.
3. Stakeholder Engagement
Comment #15: Four oil and natural gas industry commenters and one
Indian tribe commenter expressed interest in the opportunity to work
with the Agency on the development of the U&O Reservation-specific FIP
and the identification of proper emission controls that will result in
a direct reduction of ozone in the Uinta Basin. One Indian tribe
commenter indicated interest in continuing consultation with the Agency
about the unique characteristics of the reservation and to balance the
regulation with the Ute Indian Tribe's interests in developing its
resources without harming future natural resource and economic
development.
Two oil and natural gas industry commenters encouraged the EPA to
engage stakeholders, including the Ute Indian Tribe, trade associations
and operators in advance of proposing the U&O Reservation-specific FIP.
One oil and natural gas industry commenter recommended a collaborative
stakeholder engagement process, modeled after the stakeholder program
implemented by Wyoming Department of Environmental Quality that
established the Upper Green River Basin Air Quality Citizens Advisory
Task Force. According to the commenter, the stakeholder outreach
process should contain highly inclusive public outreach early in the
planning process, involvement of stakeholders in advance of development
of formal plans to seek additional emission reductions, continuous
engagement throughout the duration of the attainment planning process,
a process specific to the Basin's unique winter ozone air quality
problem that drives the nonattainment designation, and a mechanism to
allow for transparent and collaborative dialog with all parties.
Response #15: The comments concerning the process for development
of the U&O Reservation-specific FIP are not material to this action
amending the existing National O&NG FIP and the EPA is not responding
to them here. However, the EPA notes that, consistent with the federal
government's trust responsibility and established EPA policy and to
improve our understanding of the potential environmental implications
of oil and natural gas production operations, the Agency has consulted
(and will continue to consult) with the Ute Indian Tribe on issues
related to this action and to the U&O Reservation-specific FIP. We
appreciate the importance of oil and natural gas activity for the U&O
Reservation, as expressed to us by the Tribe during our government-to-
government consultations.
We have held numerous consultations with the Ute Indian Tribe, and
participated in numerous tribally-convened stakeholder and other
meetings, in 2015, 2016, 2017, 2018 and 2019. We have also reached out
to the following stakeholders: (1) Oil and natural gas operators and
representatives; (2) environmental groups; (3) Federal Land Managers;
and (4) local county officials. These consultations and meetings
addressed, at least in part, the issue that has prompted this
rulemaking, i.e., the need expressed by the Ute Indian Tribe and others
for continued streamlined authorizations to construct to continue to be
available on the U&O Reservation as part of the Uinta Basin Ozone
Nonattainment Area. For a complete list of these consultations and
meetings, including dates, locations and attendees, please consult the
docket to this rulemaking.\34\
---------------------------------------------------------------------------
\34\ ``Meetings and Consultations Held with the Ute Indian Tribe
Concerning at Least Partly the National Oil and Natural Gas Federal
Implementation Plan for Indian Country,'' March 26, 2019, EPA-HQ-
OAR-2014-0606.
---------------------------------------------------------------------------
A significant purpose of the government-to-government consultations
was to receive tribal comments and concerns for consideration by the
EPA as it developed this action. The purposes of the EPA, Tribe, and
UDEQ meetings were to discuss our intent to address ozone issues in the
Uinta Basin and to solicit input on potential solutions to the region's
air quality problem, while ensuring continued resource development. We
strive to provide greater regulatory certainty and consistency across
the Uinta Basin in the regulation of these operations through enhanced
data collection and analysis, improved information sharing
[[Page 21251]]
and partnerships, and focused compliance assistance and enforcement.
The EPA is committed to working closely with the Ute Indian Tribe, the
state of Utah and other stakeholders during the U&O Reservation-
specific FIP development process.
4. Other Construction Permitting Options for U&O Reservation
Comment #16: One Indian tribe commenter requested that the EPA work
with the Ute Indian Tribe to mitigate air quality impacts during the
winter ozone season. The commenter stated that the Tribe seeks to make
sure all options are evaluated for permitting in the development of the
U&O Reservation-specific FIP so that the best permitting solutions can
be achieved. The commenter asserted that the National O&NG FIP on the
U&O Reservation should not be the only option available for authorizing
construction on the Reservation once the U&O Reservation-specific FIP
is developed. The commenter requested that the EPA remain open to other
flexible, targeted controls and permitting schemes or mechanisms for
inclusion in the U&O Reservation-specific FIP that will be key to
bringing the Uinta Basin back into attainment, including a streamlined
permitting system for minor modifications at major sources and
synthetic minor sources.
Response #16: Again, the EPA is not responding, here, to comments
concerning the development of the U&O Reservation-specific FIP. The EPA
is committed to continuing to work with the Ute Indian Tribe to find
permitting solutions for the U&O Reservation that protect air quality
and address the needs of the Tribe. Specifically, the EPA is willing to
engage in discussions with the Tribe about permitting mechanisms and
other regulatory options in Indian country that may apply in lieu of or
in addition to the National O&NG FIP (i.e., general permits and
synthetic minor permits).
F. Out-of-Scope Comments
Comment #17: Four anonymous commenters did not address the proposal
and included general comments on the oil and natural gas industry,
greenhouse gases and other environmental concerns.
Response #17: Because these comments are out of scope and do not
relate to this action, the EPA is not providing responses to them as
part of this final rulemaking.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is an Executive Order 13771 deregulatory action. This
final rule provides meaningful burden reduction by extending the
streamlined authorization-to-construct method for true minor new and
modified oil and natural gas sources. The streamlined authorization,
which was established by the EPA in 2016, reduces the resource burden
on the permitting authority and regulated community associated with
submitting and reviewing permit applications for these sources in
attainment, unclassifiable and attainment/unclassifiable areas. This
action finalizes the extension of streamlined authorizations to the
Indian country portion of the Uinta Basin Ozone Nonattainment Area.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the Federal Indian Country Minor NSR rule and
has assigned OMB control number 2060-0003.\35\ This action amends the
National O&NG FIP, which provides a mechanism for authorizing
construction for true minor sources in the oil and natural gas
production and natural gas processing segments of the oil and natural
gas sector locating or located in areas covered by the Federal Indian
Country Minor NSR rule to satisfy the requirements of that rule other
than by obtaining a site-specific minor source permit. Because it
substitutes for a site-specific permit, which would contain information
collection activities covered by the Information Collection Request for
Federal Indian Country Minor NSR rule issued in July 2011, neither the
proposed amendments, nor the National O&NG FIP, impose any new
obligations or enforceable duties on any state, local or tribal
government or the private sector. In fact, the final amendments should
have the effect of reducing paperwork burden on sources wishing to
locate or expand in the Indian country portion of the Uinta Basin Ozone
Nonattainment Area, as the amendments provide an alternative to site-
specific permitting for such sources.
---------------------------------------------------------------------------
\35\ Since the Federal Indian Country Minor NSR rule was
promulgated, the Information Collection Request has been renewed and
approved by OMB twice. The most recent approval extended the ICR
until October 31, 2020. The ICR covers the activities of the
National O&NG FIP. For more information, go to: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201702-2060-005.
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D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this 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 \36\ 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 site-specific permits, this action
also will relieve regulatory burden.) This action merely implements a
particular aspect of the Federal Indian Country Minor NSR rule. We
have, therefore, concluded that this action will have no net regulatory
burden for all directly regulated small entities.
---------------------------------------------------------------------------
\36\ ``Review of New Sources and Modifications in Indian
Country,'' U.S. Environmental Protection Agency, 76 FR 38748, July
1, 2011, https://www.federalregister.gov/articles/2011/07/01/2011-14981/review-of-new-sources-and-modifications-in-indian-country.
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E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate, 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 governments or the private sector. It simply modifies
one option for sources to comply with the Federal Indian Country Minor
NSR rule. The CAA and the Federal Indian Country Minor NSR rule itself,
not this final action, impose 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 final
action merely applies the National
[[Page 21252]]
O&NG FIP to the Indian country portion of the Uinta Basin Nonattainment
Area, which includes a streamlined mechanism for authorizing
construction for meeting the obligation of the Federal Indian Country
Minor NSR rule.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. Consistent with the EPA
Policy on Consultation and Coordination with Indian Tribes (May 4,
2011),\37\ the EPA offered consultation on the concerns addressed in
this final action, which include the lack of a streamlined permitting
for the U&O Reservation should the area be designated nonattainment.
The EPA conducted outreach on the issues addressed by the previous rule
through ongoing monthly meetings with tribal environmental
professionals in the development of the proposed action.\38\ We have
held numerous consultations with the Ute Indian Tribe, and participated
in numerous tribally-convened stakeholder and other meetings, in 2015,
2016, 2017, 2018, and 2019. We have also reached out to the following
stakeholders: (1) Oil and natural gas operators and representatives;
(2) environmental groups; (3) Federal Land Managers; and (4) local
county officials. These consultations and meetings addressed, at least
in part, the issue that has prompted this rulemaking, i.e., the need
expressed by the Ute Indian Tribe and others for continued streamlined
authorizations to construct to continue to be available on the U&O
Reservation as part of the Uinta Basin Ozone Nonattainment Area. For a
complete list of these consultations and meetings, including dates,
locations and attendees, please consult the docket to this
rulemaking.\39\
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\37\ For more information, go to: https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes.
\38\ These monthly meetings are general in nature, dealing with
many air-related topics, and are not specific to this proposed
action.
\39\ ``Meetings and Consultations Held with the Ute Indian Tribe
Concerning at Least Partly the National Oil and Natural Gas Federal
Implementation Plan for Indian Country,'' March 26, 2019, EPA-HQ-
OAR-2014-0606.
---------------------------------------------------------------------------
This action reflects tribal concerns about, and priorities for,
developing a streamlined approach for permitting true minor sources in
the oil and natural gas sector in areas covered by the Federal Indian
Country Minor NSR rule in the Uinta Basin Ozone Nonattainment Area. As
these amendments are implemented, we will continue to provide regular
outreach to tribes to ensure we address issues concerning the National
O&NG FIP, if and when they arise. The EPA is available for consultation
with any interested tribe.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks. The action merely
implements a previously-promulgated FIP for oil and natural gas sources
in Indian country.\40\
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\40\ See 81 FR 35943, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
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I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the amendments in this action will not have
potential disproportionately high and adverse human health or
environmental effects on minority or low-income populations. Through
these amendments, we are: (1) Extending geographically the National
O&NG FIP and its mechanism for authorizing construction that
effectively provides a streamlined method for implementing a pre-
construction permitting program for true minor sources in the oil and
natural gas sector in areas covered by the Federal Indian Country Minor
NSR rule, and (2) continuing an approach that enables a streamlined
process, which helps promote economic development by minimizing delays
in new construction.
L. 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 2, 2019.
Andrew R. Wheeler,
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. In Sec. 49.101, revise paragraph (c) and add paragraph (e) to read
as follows:
Sec. 49.101 Introduction.
* * * * *
(c) When must I comply with Sec. Sec. 49.101 through 49.105? You
must comply with Sec. Sec. 49.101 through 49.105 on or after October
3, 2016.
* * * * *
(e) Notwithstanding paragraph (b)(1)(v) of this section, oil and
natural gas sources located in the Indian country portion of the Uinta
Basin Ozone Nonattainment Area are subject to Sec. Sec. 49.101 through
49.105 (except for paragraph (b)(1)(v)), provided paragraphs (b)(1)(i)
through (iv) of this section are also satisfied.
[[Page 21253]]
3. In Sec. 49.102, add a definition for ``Uinta Basin Ozone
Nonattainment Area'' in alphabetical order to read as follows:
Sec. 49.102 Definitions.
* * * * *
Uinta Basin Ozone Nonattainment Area means the nonattainment area
for the Uinta Basin, or such parts or areas of the Uinta Basin, as it
is or may hereafter be defined at 40 CFR part 81, Designations of Areas
for Air Quality Purposes.
[FR Doc. 2019-09829 Filed 5-13-19; 8:45 am]
BILLING CODE 6560-50-P