[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Proposed Rules]
[Pages 20775-20786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09652]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-HQ-OAR-2014-0606; FRL-9977-68-OAR]
RIN 2060-AT96


Amendments to Federal Implementation Plan for Managing Air 
Emissions From True Minor Sources in Indian Country in the Oil and 
Natural Gas Production and Natural Gas Processing Segments of the Oil 
and Natural Gas Sector

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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[[Page 20776]]

SUMMARY: The Environmental Protection Agency (EPA) is proposing three 
amendments to the existing National Oil and Natural Gas Federal 
Implementation Plan (National O&NG FIP) that applies to new true minor 
sources and minor modifications at existing true minor sources in the 
oil and natural gas production and natural gas processing segments of 
the oil and natural gas sector that are locating or expanding in Indian 
reservations or in other areas of Indian country over which an Indian 
tribe, or the EPA, has demonstrated the tribe's jurisdiction. The 
National O&NG FIP, which includes a mechanism for authorizing 
construction of true minor new and modified oil and natural gas 
sources, satisfies the minor source permitting requirement under the 
``Federal Minor New Source Review (NSR) Program in Indian Country'' 
(referred to as the ``Federal Indian Country Minor NSR rule''). We are 
proposing two amendments to apply the National O&NG FIP to the Uintah 
and Ouray Reservation (U&O Reservation) portion of the intended Uinta 
Basin Ozone Nonattainment Area. We are also proposing a minor technical 
correction to fix a typographical error in a provision in the National 
O&NG FIP.

DATES: 
    Public hearing. A public hearing will be held May 30, 2018, at the 
EPA's Region 8 offices at 1595 Wynkoop Street, Denver, CO 80202. Please 
refer to the SUPPLEMENTARY INFORMATION section for additional 
information on the hearing.
    Comments. The EPA must receive comments on this proposed action no 
later than July 2, 2018.

ADDRESSES: 
    Public hearing. The hearing will be held at the EPA's Region 8 
offices at 1595 Wynkoop Street, Denver, CO 80202. The hearing will 
convene at 9:00 a.m. (local time). The EPA will end the hearing two 
hours after the last registered speaker has concluded their comments 
but no later than 4:00 p.m. (local time). There will be a lunch break 
from 1:00 p.m. to 2:00 p.m. (local time).
    Because the hearing is being held at a United States government 
facility, individuals planning to attend must plan for enough time to 
enter the facility. All visitors must ensure they have a valid photo ID 
and must pass through security screening, comparable to screening at an 
airport, they will sign in and obtain a visitor pass. No large signs, 
cameras, banners and/or weapons will be allowed in to the facility.
    Docket. The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2014-0606, at http://www.regulations.gov. 
Follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. the EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the Web, 
Cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mr. Christopher Stoneman, Outreach and 
Information Division, Office of Air Quality Planning and Standards (C-
304-01), Environmental Protection Agency, Research Triangle Park, North 
Carolina, 27711, telephone number (919) 541-0823, facsimile number 
(919) 541-0072, email address: [email protected].
    Public hearing. The EPA will begin pre-registering speakers for the 
hearing upon publication of this document in the Federal Register. If 
you would like to speak at the public hearing, please register using 
the online registration form available at: https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry. You may also 
register by contacting Tonya Blatcher at (919) 541-1929 or by email at 
[email protected]. To register to speak, we request the following 
information: The time you wish to speak, name, affiliation, email 
address, and telephone number. If you register to speak online, you do 
not need to call. If you require reasonable accommodations, such as the 
service of a translator, please let us know as soon as possible, but no 
later than May 22, 2018.
    The last day to pre-register to register to speak at the hearing 
will be Tuesday, May 25, 2018. On May 28, 2018, the EPA will post a 
general agenda for the hearing that will list pre-registered speakers 
in approximate order. The general agenda will be posted at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry. The 
EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearing to run either ahead of schedule or behind schedule. 
Additionally, requests to speak will be taken the day of the hearing at 
the hearing registration desk. The EPA will make every effort to 
accommodate all speakers who arrive and register, although preferences 
on speaking times may not be able to be fulfilled.

SUPPLEMENTARY INFORMATION: Public hearing. Each commenter will have 5 
minutes to provide oral testimony. The EPA encourages commenters to 
provide the EPA with a copy of their oral testimony electronically (via 
email) or in hard copy form.
    The EPA may ask clarifying questions during the oral presentations, 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing. Commenters 
should notify Tonya Blatcher at (919) 541-1929 or by email at 
[email protected] if they will need specific equipment, or if 
there are other special needs related to providing comments at the 
hearings. Verbatim transcripts of the hearings and written statements 
will be included in the docket for the rulemaking.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry. While the EPA expects the hearing to go 
forward as set forth above, please monitor our website or contact Tonya 
Blatcher at (919) 541-1929 or by email at [email protected] to 
determine if there are any updates. The EPA does not intend to publish 
a document in the Federal Register announcing updates.
    The EPA will not provide audiovisual equipment for presentations 
unless we receive special requests in advance. Commenters should notify 
Tonya Blatcher when they pre-register to speak that they will need 
specific equipment. If you require the service of a translator or 
special accommodations such as audio description, please pre-register 
for the hearing and describe your needs by May 22, 2018. We may not be 
able to arrange for accommodations without advance notice.
    The information presented in this preamble is organized as follows:

I. General Information

[[Page 20777]]

    A. What entities are potentially affected by this action?
    B. Where can I get a copy of this document and other related 
information?
II. Purpose of this Proposed Action
    A. Overview
    B. Authority for Proposed Action
    C. Rationale for Proposed Action
III. Background
    A. FIPs Under the Indian Country Minor NSR Rule
    B. Uinta Basin Air Quality and Intended Nonattainment 
Designation
IV. Summary of Proposed Amendments
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. What entities are potentially affected by this action?

    Entities potentially affected by this proposal include the Ute 
Indian Tribe,\1\ as well as new and modified true minor sources that 
are in the oil and natural gas production and natural gas processing 
segments of the oil and natural gas sector and are on Indian country 
\2\ lands within the U&O Reservation. All of the Ute Indian Tribe 
Indian country lands of which the EPA is aware are located within the 
exterior boundaries of the Reservation, and these amendments will apply 
to all such lands. To the extent that there are Ute Indian Tribe 
dependent Indian communities under 18 U.S.C. 1151(b) or allotted lands 
under 18 U.S.C. 1151(c) that are located outside the exterior 
boundaries of the Reservation, those lands will not be covered by these 
amendments.\3\ In addition, this proposed rule will not apply to any 
sources not on Indian country lands, including any areas within the 
exterior boundaries of the Reservation that are not Indian country 
lands.\4\
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    \1\ The Ute Indian Tribe is a federally recognized tribe 
organized under the Indian Reorganization Act of 1934, with a 
Constitution and By-Laws adopted by the Tribe on December 19, 1936, 
and approved by the Secretary of the Interior on January 19, 1937. 
See Indian Entities Recognized and Eligible to Receive Services from 
the United States Bureau of Indian Affairs, 82 FR 4915 (January 17, 
2017); 48 Stat. 984, 25 U.S.C. 5123 (IRA); Constitution and By-Laws 
of the Ute Indian Tribe of the Uintah and Ouray Reservation, 
available at https://www.loc.gov/law/help/american-indian-consts/PDF/37026342.pdf.
    \2\ Indian country is defined at 18 U.S.C. 1151 as: (a) All land 
within the limits of any Indian reservation under the jurisdiction 
of the United States Government, notwithstanding the issuance of any 
patent, and, including rights-of-way running through the 
reservation, (b) all dependent Indian communities within the borders 
of the United States whether within the original or subsequently 
acquired territory thereof, and whether within or without the limits 
of a state, and (c) all Indian allotments, the Indian titles to 
which have not been extinguished, including rights-of-way running 
through the same.
    \3\ Under the Clean Air Act (CAA), lands held in trust for the 
use of an Indian tribe are reservation lands within the definition 
at 18 U.S.C. 1151(a), regardless of whether the land is formally 
designated as a reservation. See Indian Tribes: Air Quality Planning 
and Management, 63 FR 7254, 7258 (1998) (``Tribal Authority Rule''); 
Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1285-86 (D.C. Cir. 
2000). The EPA's references in this FIP to Indian country lands 
within the exterior boundaries of the U&O Reservation include any 
such tribal trust lands that may be acquired by the Ute Indian 
Tribe. In addition, in 2014, the U.S. Court of Appeals for the D.C. 
Circuit addressed EPA's authority to promulgate a FIP establishing 
certain CAA permitting programs in Indian country. Oklahoma Dept. of 
Environmental Quality v. EPA, 740 F. 3d 185 (D.C. Cir. 2014). In 
that case, the court recognized the EPA's authority to promulgate a 
FIP to directly administer CAA programs on Indian reservations, but 
invalidated the FIP at issue as applied to non-reservation areas of 
Indian country in the absence of a demonstration of an Indian 
tribe's jurisdiction over such non-reservation area. Because the 
current proposed rule would apply only on Indian country lands that 
are within the exterior boundaries of the U&O Reservation, i.e., on 
Reservation lands, it is unaffected by the Oklahoma court decision.
    \4\ As a result of a series of federal court decisions, there 
are some areas within the exterior boundaries of the Uintah and 
Ouray Indian Reservation that are not Indian country lands. See Ute 
Indian Tribe v. Utah, 521 F. Supp. 1072 (D. Utah 1981); Ute Indian 
Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983); Ute Indian Tribe v. 
Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc), cert. denied, 479 
U.S. 994 (1986); Hagen v. Utah, 510 U.S. 399 (1994); Ute Indian 
Tribe v. Utah, 935 F. Supp. 1473 (D. Utah 1996); Ute Indian Tribe v. 
Utah, 114 F.3d 1513 (10th Cir. 1997), cert. denied, 522 U.S. 1107 
(1998); Ute Indian Tribe v. Utah, 790 F.3d 1000 (10th Cir. 2015), 
cert. denied, 136 S. Ct. 1451 (2016); and Ute Indian Tribe v. Myton, 
835 F.3d 1255 (10th Cir. 2016), cert. denied, 137 S. Ct. 2328 
(2017).

           Table 1--Source Categories Affected by This Action
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                                                  Examples of regulated
       Industry category         NAICS code \a\  entities/description of
                                                    industry category
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Oil and Natural Gas Production/           21111  Exploration for crude
 Operations.                                      petroleum and natural
                                                  gas; drilling,
                                                  completing, and
                                                  equipping wells;
                                                  operation of
                                                  separators, emulsion
                                                  breakers, desilting
                                                  equipment, and field
                                                  gathering lines for
                                                  crude petroleum and
                                                  natural gas; and all
                                                  other activities in
                                                  the preparation of oil
                                                  and natural gas up to
                                                  the point of shipment
                                                  from the producing
                                                  property.
                                                 Production of crude
                                                  petroleum, the mining
                                                  and extraction of oil
                                                  from oil shale and oil
                                                  sands, the production
                                                  of natural gas, sulfur
                                                  recovery from natural
                                                  gas, and the recovery
                                                  of hydrocarbon liquids
                                                  from oil and natural
                                                  gas field gases.
Crude Petroleum and Natural Gas          211111  Exploration,
 Extraction.                                      development and/or the
                                                  production of
                                                  petroleum or natural
                                                  gas from wells in
                                                  which the hydrocarbons
                                                  will initially flow or
                                                  can be produced using
                                                  normal pumping
                                                  techniques or
                                                  production of crude
                                                  petroleum from surface
                                                  shales or tar sands or
                                                  from reservoirs in
                                                  which the hydrocarbons
                                                  are semisolids.
Natural Gas Liquid Extraction..          211112  Recovery of liquid
                                                  hydrocarbons from oil
                                                  and natural gas field
                                                  gases; and sulfur
                                                  recovery from natural
                                                  gas.
Drilling Oil and Natural Gas             213111  Drilling oil and
 Wells.                                           natural gas wells for
                                                  others on a contract
                                                  or fee basis,
                                                  including spudding in,
                                                  drilling in,
                                                  redrilling, and
                                                  directional drilling.

[[Page 20778]]

 
Support Activities for Oil and           213112  Performing support
 Natural Gas Operations.                          activities on a
                                                  contract or fee basis
                                                  for oil and natural
                                                  gas operations (except
                                                  site preparation and
                                                  related construction
                                                  activities) such as
                                                  exploration (except
                                                  geophysical surveying
                                                  and mapping);
                                                  excavating slush pits
                                                  and cellars, well
                                                  surveying; running,
                                                  cutting, and pulling
                                                  casings, tubes, and
                                                  rods; cementing wells,
                                                  shooting wells;
                                                  perforating well
                                                  casings; acidizing and
                                                  chemically treating
                                                  wells; and cleaning
                                                  out, bailing, and
                                                  swabbing wells.
Engines (Spark Ignition and               22111  Provision of electric
 Compression Ignition) for                        power to support oil
 Electric Power Generation.                       and natural gas
                                                  production where
                                                  access to the electric
                                                  grid is unavailable.
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\a\ North American Industry Classification System.

    This list is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be potentially affected 
by this action. To determine whether your facility could be affected by 
this action, you should examine the applicability criteria in the 
Federal Minor NSR Program in Indian Country and the National O&NG FIP 
(40 Code of Federal Regulations (CFR) 49153 and 49.101, respectively). 
If you have any questions regarding the applicability of this action to 
a particular entity, contact the appropriate person listed in the FOR 
FURTHER INFORMATION CONTACT section.

B. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this final rule will also be available on the World Wide Web. Following 
signature by the EPA Administrator, a copy of this final rule will be 
posted in the regulations and standards section of our NSR home page 
located at http://www.epa.gov/nsr and on the tribal NSR page at https://www.epa.gov/tribal-air/tribal-minor-new-source-review.

II. Purpose of This Proposed Action

A. Overview

    In this action, the EPA is proposing to exercise its authority, in 
accordance with section 110(a)(2)(C) of the CAA and under sections 
301(a) and 301(d)(4) of the CAA and 40 CFR 49.11 by amending the 
National O&NG FIP \5\ to extend it to eligible true minor oil and 
natural gas sources in the Indian country portion of the intended Uinta 
Basin Ozone Nonattainment Area, which includes making it available as a 
mechanism for authorizing construction in that area. (The Indian 
country lands within the Uinta Basin to which these amendments would 
apply are on the U&O Reservation.)
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    \5\ ``Federal Implementation Plan for True Minor Sources in 
Indian Country in the Oil and Natural Gas Production and Natural Gas 
Processing Segments of the Oil and Natural Gas Sector; Amendments to 
the Federal Minor New Source Review Program in Indian Country to 
Address Requirements for True Minor Sources in the Oil and Natural 
Gas Sector,'' U.S. Environmental Protection Agency, 81 FR 35943, 
June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
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    The National O&NG FIP provides a mechanism for authorizing 
construction for eligible true minor oil and natural gas sources 
wishing to locate or expand in areas of Indian country designated as 
attainment, unclassifiable and attainment/unclassifiable. The counties 
in the Uinta Basin are currently designated as unclassifiable with 
respect to the 2008 ozone National Ambient Air Quality Standards 
(NAAQS) \6\ and, as such, owners/operators of eligible oil and natural 
gas sources on Indian country lands within the U&O Reservation have 
been utilizing the National O&NG FIP's streamlined approach to satisfy 
permitting requirements since August 2, 2016, when the FIP became 
effective. However, the EPA has announced its intention to designate 
portions of the Uinta Basin, including the U&O Reservation, as 
nonattainment for the 2015 ozone NAAQS.7 8
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    \6\ ``Air Quality Designations for the 2008 Ozone National 
Ambient Air Quality Standards; Implementation of the 2008 National 
Ambient Air Quality Standards for Ozone: Nonattainment Area 
Classifications Approach, Attainment Deadlines and Revocation of the 
1997 Ozone Standards for Transportation Conformity Purposes,'' U.S. 
Environmental Protection Agency, 77 FR 30087, May 21, 2012, https://www.gpo.gov/fdsys/pkg/FR-2012-05-21/pdf/2012-11618.pdf.
    \7\ The EPA intends to make final designation determinations for 
the areas of the country addressed by the EPA responses to state and 
tribal area boundary recommendations (which cover the Uinta Basin 
region) no earlier than 120 days from the date (December 21, 2017) 
the EPA notified states and tribes of the agency's intended 
designations.
    \8\ ``EPA Responses to Certain State Designation Recommendations 
for the 2015 Ozone National Ambient Air Quality Standards: Notice of 
Availability and Public Comment Period,'' U.S. Environmental 
Protection Agency, 83 FR 651, January 5, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-01-05/pdf/2018-00024.pdf.
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    The Uinta Basin is a petroleum producing system that contains 
thousands of active oil and natural gas wells, and existing oil and 
natural gas production activity is the primary source of the emissions 
of concern for air quality: volatile organic compounds (VOC) and 
nitrogen oxides (NOX), ozone precursors that react to form 
ozone in the presence of sunlight and widespread snow cover. The Uinta 
Basin's air quality problem is wintertime ozone caused by these 
existing sources' emissions. However, because the agency is under a 
court order to finalize the Basin's designation with respect to the 
2015 ozone NAAQS by April 30, 2018,\9\ and because the agency intends 
to designate some portions of the Basin as nonattainment, including 
portions of the U&O Reservation, under the National O&G FIP, in its 
current form, the Indian country portions of the Basin (U&O 
Reservation) will fall out of that FIP's coverage. Thus, the area will 
lack a streamlined mechanism to authorize construction of true minor 
new and modified oil and natural gas sources. This will immediately 
cause a disparity in the regulatory landscape facing such activity in 
the affected area, as compared to all other areas of Indian country 
that will remain covered by the FIP--even though the Basin's air 
quality problem that drives the impending nonattainment designation 
will not manifest until the winter.
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    \9\ In re Ozone Designation Litigation, No. 17-cv-06900-HSG 
(N.D. Cal. March 12, 2018).
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    With this proposed action, the EPA is proposing to ensure that the 
National O&NG FIP's requirements to comply with eight federal rules 
(and the mechanism for authorizing construction) will continue to apply 
on the U&O Reservation, recognizing that the geographically limited 
extension of the National O&NG FIP to the area is occurring while the 
EPA moves quickly to complete a separate rulemaking to

[[Page 20779]]

further address the air quality problem on the U&O Reservation.
    The separate EPA rulemaking \10\ addressing air quality is a 
reservation-specific FIP action that will contain requirements to 
reduce ozone-forming emissions from new, modified and existing oil and 
natural gas sources on Indian country lands within the U&O Reservation. 
The rulemaking will seek to achieve three goals for the Indian country 
portion of the Uinta Basin: (1) Clean air; (2) continued, uninterrupted 
development of the oil and natural gas resources; and (3) consistent 
CAA regulatory requirements between Indian country lands within the U&O 
Reservation and lands under state of Utah jurisdiction. Through that 
rulemaking, the EPA will address the Uinta Basin's particular situation 
in an area-specific manner; this proposal today seeks to bridge the gap 
in authority that the nonattainment designation will cause during the 
interim period where the designation will be in place, but the 
environmental needs requiring area-specific treatment have not yet 
materialized.
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    \10\ The rulemaking is listed on the Office of Management and 
Budget's Unified Agenda of Regulatory and Deregulatory Actions. For 
more information, go to: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=2008-AA03. In the Agenda, the 
rulemaking appears as: ``Federal Implementation Plan for Oil and 
Natural Gas Sources; Uintah and Ouray Indian Reservation in Utah.''
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B. Authority for Proposed Action

    CAA section 110(a)(2)(C) is part of the foundation for the minor 
NSR program, and it requires states to submit plans that include 
programs for the regulation of ``the modification and construction of 
any stationary source.'' \11\ CAA section 110(c) authorizes the EPA to 
promulgate a Federal implementation plan in the absence of a 
satisfactory state plan. CAA section 301(a) generally authorizes the 
EPA to prescribe regulations as are necessary to carry out its 
functions under the Act.
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    \11\ Section 110(a)(2)(C) of the CAA requires state plans to 
include ``a program to provide for the . . . regulation of the 
modification and construction of any stationary source within the 
areas covered by the plan as necessary to assure that national 
ambient air quality standards are achieved, including a permit 
program as required in parts C and D of this subchapter.''
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    Section 301(d) of the CAA authorizes the EPA to treat Indian tribes 
in the same manner as states and directs the EPA to promulgate 
regulations specifying those provisions of the CAA for which such 
treatment is appropriate. (CAA sections 301(d)(1) and (2)). It also 
authorizes the EPA, in circumstances in which the EPA determines that 
the treatment of Indian tribes as identical to states is inappropriate 
or administratively infeasible, to provide by regulation other means by 
which the EPA will directly administer the CAA. (CAA section 
301(d)(4)). Acting principally pursuant to that authority, on February 
12, 1998,\12\ the EPA promulgated what we refer to as the Tribal 
Authority Rule (TAR). (40 CFR 49.1-49.11). In the TAR, we determined 
that it was appropriate to treat tribes in the same manner as states 
for all CAA and regulatory purposes except a list of specified CAA 
provisions and implementing regulations thereunder. (40 CFR 49.4).
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    \12\ ``Indian Tribes: Air Quality Planning and Management,'' 
U.S. Environmental Protection Agency, 63 FR 7254, February 12, 1998, 
http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
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    The TAR preamble clarified that by including CAA section 110(c)(1) 
on the Sec.  49.4 ``exception'' list, ``EPA is not relieved of its 
general obligation under the CAA to ensure the protection of air 
quality throughout the nation, including throughout Indian country.'' 
The preamble confirmed that the ``EPA will continue to be subject to 
the basic requirement to issue a FIP for affected tribal areas within 
some reasonable time.'' \13\ The TAR includes a provision that provides 
the EPA the authority to promulgate a Federal implementation plan in 
the absence of a satisfactory tribal plan. (40 CFR 49.11(a)).
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    \13\ See CAA section 301(a) and 63 FR 7254, 7265, February 12, 
1998, http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.
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    On August 21, 2006, the EPA proposed the regulation: ``Review of 
New Sources and Modifications in Indian Country'' (commonly referred to 
as the Federal Indian Country NSR rule).\14\ With this proposed 
regulation, the EPA proposed to protect air quality in Indian country, 
as defined in 18 U.S.C. 1151, by establishing a FIP program to 
regulate, among other matters, the modification and construction of 
minor stationary sources consistent with the authorities and 
requirements of sections 301 and 110(a)(2)(C) of the CAA. We refer to 
this part of the Federal Indian Country NSR rule as the Federal Indian 
Country Minor NSR rule. Under the Federal Indian Country Minor NSR 
rule, we proposed to provide a mechanism for issuing pre-construction 
permits for the construction of new minor sources and certain 
modifications of major and minor sources in Indian country. We 
promulgated a final rule on July 1, 2011,\15\ and the rule became 
effective on August 30, 2011. The Federal Indian Country Minor NSR rule 
applies to new and modified minor stationary sources and to minor 
modifications at existing major stationary sources located in Indian 
country where there is no EPA-approved program in place for all new and 
modified minor sources and minor modifications at major sources located 
in areas covered by the Federal Indian Country Minor NSR rule.
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    \14\ ``Review of New Sources and Modifications in Indian 
Country,'' U.S. Environmental Protection Agency, 71 FR 48696, August 
21, 2006, https://www.gpo.gov/fdsys/pkg/FR-2006-08-21/pdf/06-6926.pdf.
    \15\ ``Review of New Sources and Modifications in Indian 
Country,'' U.S. Environmental Protection Agency, 76 FR 38748, July 
1, 2011, https://www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/2011-14981.pdf.
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    Tribes can elect to develop and implement their own EPA-approved 
program under the TAR,\16\ but they are not required to do so.\17\ In 
the absence of an approved program, the EPA implements this program. 
Alternatively, tribes can take delegation of the program from the EPA 
to assist the EPA with administration of the federal program, including 
acting as the Reviewing Authority for the EPA.
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    \16\ To obtain eligibility to develop and implement an EPA-
approved plan, under the TAR a tribe must meet four requirements: 
(1) be a federally recognized tribe, (2) have a functioning 
government, (3) have the legal authority and (4) have the capacity 
to run the program. For more information, see 63 FR 7254, February 
12, 1998, http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
    \17\ Under tribal law, tribes may also be able to establish 
permit fees under a tribal permitting program, as do most states.
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    Under the Federal Indian Country Minor NSR rule, initially 
beginning September 2, 2014,\18\ any new stationary source, that will 
emit, or will have the potential to emit, a regulated NSR pollutant in 
amounts that will be: (a) Equal to or greater than the minor NSR 
thresholds established in the Federal Indian Country Minor NSR rule; 
but (b) less than the amount that would qualify the source as a major 
source or a major modification for purposes of the Prevention of 
Significant Deterioration (PSD) or nonattainment major NSR programs, 
must apply for and obtain a minor NSR permit before beginning 
construction of the new source. Likewise, any existing stationary 
source (minor or major) must apply for and obtain a minor NSR permit 
before beginning construction (a physical or operational change) that 
will increase the allowable emissions of the stationary source by more 
than the specified threshold amounts, if the change does not otherwise 
trigger the permitting requirements of the PSD or

[[Page 20780]]

nonattainment major NSR program(s).\19\ The Federal Indian Country 
Minor NSR rule also created a framework for the EPA to streamline the 
issuance of pre-construction permits to true minor sources by using 
general permits.
---------------------------------------------------------------------------

    \18\ For true minor sources in the oil and natural gas sector, 
this date was extended twice. The final date of October 3, 2016, was 
included in the National O&NG FIP.
    \19\ A source may, however, be subject to certain monitoring, 
recordkeeping and reporting (MRR) requirements under the major NSR 
programs, if the change has a reasonable possibility of resulting in 
a major modification. A source may be subject to both the Federal 
Indian Country Minor NSR rule and the reasonable possibility MRR 
requirements of the major NSR program(s).
---------------------------------------------------------------------------

    In promulgating the National O&NG FIP we determined that it was 
appropriate to promulgate a FIP to remedy an existing regulatory gap 
with respect to oil and natural gas production and natural gas 
processing operations in areas covered by the Federal Indian Country 
Minor NSR rule where there is no EPA-approved plan in place. The 
authority that underlies and supports the National O&NG FIP (as well as 
the Federal Indian Country Minor NSR FIP) also authorizes this proposed 
action, which simply would amend the National O&NG FIP. In summary, 
just as we had the authority to establish the National O&NG FIP, we 
believe that we have authority under the CAA (sections 301(a), 
301(d)(4) and 110(a)(2)(C)) and regulatory authority under the TAR (40 
CFR 49.1-49.11) to carry out this action and extend the applicability 
of the National O&NG FIP to the Indian country portion of the Uinta 
Basin Ozone Nonattainment Area. As described above, the CAA provides 
broad authority to manage air resources throughout Indian country, 
regardless of area designation under the CAA. This is well established 
authority and we have exercised it on many occasions, including to 
regulate activity in areas of Indian country designated nonattainment. 
Foremost, the Agency is responsible for ensuring that NAAQS are 
achieved throughout Indian country and to implement CAA programs in 
Indian country that tribal governments do not elect to implement. This 
proposed action is consistent with and supported by our successful use 
of these authorities in these prior actions.
    Finally, in light of the intended, pending final designation of 
nonattainment for the Uinta Basin for the 2015 ozone NAAQS, this action 
is consistent with the CAA general provisions for nonattainment areas 
in CAA sections 172(b) and 172(c), which include references to CAA 
section 110(a)(2), as well as the major source nonattainment NSR 
permitting program in CAA section 173. This proposed action is 
consistent with CAA section 110(a)(2)(C), which requires that 
implementation plans include programs for all areas (attainment and 
nonattainment) that provide for the regulation of the modification and 
construction of any stationary source ``as necessary to assure that 
national ambient air quality standards are achieved'' for the reasons 
discussed elsewhere in this document. In addition, CAA sections 172 and 
173 provide that programs relating to permits to construct for major 
sources should take into consideration emissions from existing sources, 
as well as new or modified sources that ``are not major emitting 
facilities,'' i.e., new or modified minor sources. Thus, the emissions 
from minor sources covered by this action would be considered in CAA 
section 173 major source permitting actions in the intended Uinta Basin 
Ozone Nonattainment Area, though they are not directly subject to 
regulation under CAA sections 172 and 173.\20\
---------------------------------------------------------------------------

    \20\ The Federal Indian Country NSR rule also provides for major 
source permitting in nonattainment areas in Indian country. See 76 
FR 38748, July 1, 2011, https://www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/2011-14981.pdf.
---------------------------------------------------------------------------

C. Rationale for Proposed Action

    In the preamble to the final National O&NG FIP, we made clear that 
we could extend the geographic coverage of the FIP to nonattainment 
areas, provided that we also addressed existing, new and modified 
sources in a separate, reservation-specific FIP. We stated the need to 
develop area-specific plans if and when areas of Indian country become 
nonattainment. Further, we specifically noted concern about the air 
quality problem in the Uinta Basin and indicated our intent to propose 
a separate reservation-specific FIP to address the issue.
    The extension of the National O&NG FIP proposed in this document 
will, if finalized, provide coverage under the National O&NG FIP for 
Indian country portion of the intended Uinta basin Ozone Nonattainment 
Area after EPA's intended designation of portions of the Uinta Basin as 
being in nonattainment of the 2015 ozone NAAQS, which the EPA intends 
to issue by April 30, 2018. We indicated in the preamble to the final 
National O&NG FIP that we intended ``to potentially apply the national 
FIP's requirements as appropriate to nonattainment areas where the EPA 
has established a separate, area-specific FIP.''\21\ The EPA does 
intend to do just that for the Indian country portion of the intended 
Uinta Basin Ozone Nonattainment Area, but in the meantime we are 
proposing this action. The agency believes that this approach is 
reasonable in light of the following considerations.
---------------------------------------------------------------------------

    \21\ See 81 FR 35943, 35946, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
---------------------------------------------------------------------------

    First, as noted above, the EPA is moving quickly to undertake a 
separate rulemaking to establish a U&O Reservation-specific FIP for the 
area. We intend to complete this other action--the U&O Reservation-
specific FIP--before the start of the 2018-2019 winter ozone season in 
the Uinta Basin. Our intent is for the FIP to contain VOC emissions 
control requirements that will apply to existing, new and modified 
minor oil and natural gas sources on the U&O Reservation. Our intent is 
for some of those requirements (i.e., VOC requirements on new and 
modified minor sources) to apply before the start of the 2018-2019 
winter ozone season on the U&O Reservation, by which time we expect the 
final U&O Reservation-specific FIP to be effective with the 
requirements on existing oil and natural gas minor sources to follow. 
It should also be noted that preliminary monitoring data from the 
current 2017-2018 winter ozone season from across the region show 
values well below the 2015 ozone NAAQS.\22\
---------------------------------------------------------------------------

    \22\ See spreadsheet titled: ``Uinta Basin Ozone Data, Dec. 
2017-Feb. 2018,'' Docket No. EPA-HQ-OAR-2014-0606.
---------------------------------------------------------------------------

    Second, the relatively short, initial period of time before a U&O 
Reservation-specific FIP is in place during which the National O&NG FIP 
will apply to the U&O Reservation (as part of the expected Uinta Basin 
Ozone Nonattainment Area), will be before the Uinta Basin winter ozone 
season. As noted above, the Uinta Basin does not have a summertime 
ozone air quality problem. We are, therefore, confident that--with this 
action--the eight emissions standards that apply to oil and natural gas 
sources under the National O&NG FIP will continue to be adequately 
protective of air quality in the U&O Reservation while we complete the 
separate rulemaking to establish a U&O Reservation-specific FIP, all of 
which we expect to occur before the start of the 2018-2019 winter ozone 
season in the Uinta Basin.
    Finally, the two-part approach we are taking is similar to the 
process that occurs under the CAA when an area within a state is 
designated nonattainment: A plan addressing the air quality problem is 
not due to the EPA until a period of time after an area is designated 
nonattainment. Thus, the approach we are presenting here, we believe, 
is reasonable.

[[Page 20781]]

    We also believe that this action--along with the EPA's related, 
forthcoming action to reduce oil and natural gas source emissions in 
the area--will address the air quality problem on the U&O Reservation, 
while maintaining a mechanism for authorizing construction that helps 
ensure continued oil and natural gas production on the U&O Reservation 
in compliance with the eight federal rules that apply to true minor oil 
and natural gas sources under the FIP.\23\ Based on feedback from Ute 
Indian Tribe leadership, continued oil and natural gas production is 
important for the maintenance of the local tribal economy, as the Ute 
Indian Tribe is dependent upon oil and natural gas revenue for its 
economic prosperity. Because the action we propose today will avoid 
disruption of that activity during the period before the wintertime 
ozone problem manifests, while the EPA works to promulgate an area-
specific protective measure to address that problem, the agency 
believes this course of action will appropriately protect the Basin's 
environment without causing unnecessary disruption to its economy.
---------------------------------------------------------------------------

    \23\ This includes the EPA's New Source Performance Standards 
(NSPS) for oil and natural gas sources (40 CFR part 60, subpart 
OOOO) with affected facilities that commenced construction, 
modification or reconstruction after August 23, 2011. The standard 
includes emissions standards for VOC and sulfur dioxide 
(SO2) from a number of units, including storage tanks, 
compressors, and pneumatic controllers.
---------------------------------------------------------------------------

    We are proposing that the extension of the National O&NG FIP to 
eligible true minor oil and natural gas sources in the Indian country 
portion of the intended Uinta Basin Ozone Nonattainment Area be 
permanent. However, we also are seeking comment on whether, instead, it 
should be temporary and expire before the onset of the 2018-2019 ozone 
season. We seek comment on whether the extension should be temporary, 
in light of the facts surrounding the Uinta Basin's situation as 
described above and with respect to: (1) This proposed action, (2) its 
impending nonattainment designation, and (3) the forthcoming area-
specific FIP.
    In particular, we seek comment on how the EPA can protect air 
quality on the U&O Reservation and ensure continued oil and natural gas 
development under two general scenarios. In the first scenario, we 
finalize the extension as permanent, as proposed, but we do not 
complete the U&O Reservation-specific FIP by the start of the 2018-2019 
Uinta Basin winter ozone season. A concern may be that continuing to 
allow the Uinta Basin Ozone Nonattainment Area to be covered by the 
National O&NG FIP in the absence of any emissions reductions that may 
be associated with the U&O Reservation-specific FIP. We seek comment 
relating to this scenario, including on what the Agency could do in 
this action, when finalized, to mitigate possible impacts.
    In another scenario, we, instead finalize the extension as 
temporary and we set it to expire at the end of calendar year 2018, 
say, but we do not complete the U&O Reservation-specific FIP by the 
start of the 2018-2019 Uinta Basin winter ozone season. Here, the 
concern would be the effect on oil and natural gas activity on the U&O 
Reservation, if the area loses coverage under the National O&NG FIP. In 
the absence of other measures, sources in the Indian country portion of 
Uinta Basin Ozone Nonattainment Area (the U&O Reservation) would need 
to obtain source-specific minor source permits in order to construct 
and operate. Oil and natural gas owners and operators in the U&O 
reservation and the Ute Indian Tribe have significant concerns about 
delays associated with this type of permitting. As noted above, the Ute 
Indian Tribe relies on revenue from oil and natural gas activity for 
its livelihood and has expressed concerns about the lengthier 
timeframes associated with EPA approvals under source-specific 
permitting. We seek comment relating to this scenario, including on 
what the Agency could do to mitigate possible impacts.

III. Background

A. FIPs Under the Indian Country Minor NSR Rule

1. Federal Indian Country Minor NSR Rule
    As noted above, CAA section 301(d)(4) authorizes the EPA to issue 
regulations directly administering, in Indian country, provisions of 
the Act. Exercising its authority, including its authority under 
301(d)(4), the EPA promulgated the Federal Indian Country Minor NSR 
rule, a type of FIP. We identified a regulatory gap that could have the 
effect of adversely impacting air quality due to the lack of approved 
minor NSR permit programs to regulate construction of new and modified 
minor sources and minor modifications of major sources in areas covered 
by the Federal Indian Country Minor NSR rule. The EPA promulgated the 
FIP to ensure that air resources are protected by establishing a 
preconstruction permitting program to regulate emission increases 
resulting from construction and modification activities that are not 
already regulated by the major NSR permitting programs.
2. National O&NG FIP
    Following the issuance of the Federal Indian Country Minor NSR FIP, 
EPA proposed the National O&NG FIP.\24\ Because there were no currently 
approved TIPs specifically applying to the issuance of general permits 
with respect to the reduction of emissions related to oil and natural 
gas production facilities, we proposed a FIP to protect air quality in 
areas covered by the Federal Indian Country Minor NSR rule. The 
National O&NG FIP was published in final form on June 3, 2016.\25\ The 
National O&NG FIP adopted legally and practicably enforceable 
requirements to control and reduce air emissions from oil and natural 
gas production.
---------------------------------------------------------------------------

    \24\ ``Review of New Sources and Modifications in Indian 
Country: Federal Implementation Plan for Managing Air Emissions from 
True Minor Sources Engaged in Oil and Natural Gas Production in 
Indian Country,'' U.S. Environmental Protection Agency, 80 FR 56553, 
September 18, 2005, https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-21025.pdf.
    \25\ See 81 FR 35943, 35946, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
---------------------------------------------------------------------------

    The National O&NG FIP was developed to protect air quality in 
Indian country due to the impact of new true minor sources and minor 
modifications at existing true minor sources in the oil and natural gas 
production and natural gas processing segments of the oil and natural 
gas sector that are locating or expanding in an Indian reservation or 
in another area of Indian country over which a tribe, or the EPA, has 
demonstrated that the tribe has jurisdiction. The FIP applies to new 
and modified true minor sources that are located or expanding in such 
areas of Indian country designated as attainment, unclassifiable or 
attainment/unclassifiable. It currently does not apply to new and 
modified true minor sources that are located or expanding in such areas 
of Indian country designated nonattainment. However, this action 
proposes to extend the National O&NG FIP's geographic coverage to the 
Uinta Basin Ozone Nonattainment Area. The FIP does not apply to minor 
modification of major sources; such sources are required to obtain a 
source-specific permit prior to beginning construction, per the Federal 
Indian Country Minor NSR rule.
    The National O&NG FIP fulfills the EPA's obligation under the 
Federal Indian Country Minor NSR rule to issue minor source NSR pre-
construction permits to oil and natural gas sources. The National O&NG 
FIP provides a streamlined, alternative approach that

[[Page 20782]]

fulfills the permitting requirement, while also ensuring air quality 
protection through requirements that are unambiguous and legally and 
practicably enforceable. The FIP approach is also transparent to the 
public: It is clear to the public what requirements will apply. The FIP 
reduces burden for sources and the Reviewing Authority and minimizes 
potential delays in new construction due to compliance with the minor 
NSR permitting obligation. True minor sources in the oil and natural 
gas production and natural gas processing segments of the oil and 
natural gas sector are required to comply with the FIP instead of 
obtaining a source-specific minor source permit, unless a source 
chooses to opt out of the FIP and to obtain a source-specific minor NSR 
permit instead.
    Under the FIP, we require owners/operators of oil and natural gas 
production facilities and natural gas processing plants to comply with 
eight federal standards to reduce emissions of VOC, NOX, 
SO2, particulate matter (PM, PM10, 
PM2.5), hydrogen sulfide, carbon monoxide and various sulfur 
compounds from the following units/processes in the oil and natural gas 
production and natural gas processing segments of the oil and natural 
gas sector: Compression ignition and spark ignition engines; process 
heaters; combustion turbines; fuel storage tanks; glycol dehydrators; 
completion of hydraulically fractured oil and natural gas wells; 
reciprocating and centrifugal compressors (except those located at well 
sites); pneumatic controllers; pneumatic pumps; storage vessels; and 
fugitive emissions from well sites, compressor stations and natural gas 
processing plants. The oil and natural gas FIP requires compliance with 
five NSPS and three national emission standards for hazardous air 
pollutants (NESHAP).\26\ These regulations are listed in Table 2.
---------------------------------------------------------------------------

    \26\ Though this FIP only addresses new and modified true minor 
sources, it is important to note that NESHAPs not only apply to new 
sources but to existing sources as well.
---------------------------------------------------------------------------

    The eight regulations and the provisions of each that are included 
in the oil and natural gas FIP are discussed in more detail in this 
section. The FIP's requirements include emission standards (that 
contain emission limitations), monitoring, testing, recordkeeping and 
reporting. For purposes of the National O&NG FIP, true minor sources 
must comply with these standards, as they currently exist or as amended 
in the future, except for those provisions that we specifically exclude 
under the National O&NG FIP (unless the source opts out of the FIP and 
obtains a source-specific permit or is otherwise required to obtain a 
source-specific permit by the Reviewing Authority). Sources subject to 
the National O&NG FIP would be subject to any future changes to the 
eight underlying EPA standards only if they undergo a future minor 
modification as a true minor source and would otherwise be subject to 
those future changes. (The National O&NG FIP does not change the 
applicability of the specified standards, nor does it relieve sources 
subject to the standards from complying with them, independently of the 
National O&NG FIP.)

          Table 2--Eight Federal Rules Included in the Oil and Natural Gas FIP for Indian Country \27\
----------------------------------------------------------------------------------------------------------------
                                                             Potentially
                                                           affected sources
                                                            in the oil and
                                                             natural gas
                                                            production and
       40 CFR part and subpart         Title of subpart      natural gas                   Location
                                                              processing
                                                           segments of the
                                                           oil and natural
                                                              gas sector
----------------------------------------------------------------------------------------------------------------
40 CFR part 63, subpart DDDDD.......  National Emission   Process heaters..  http://www.ecfr.gov/cgi-bin/text-
                                       Standards for                          idx?SID=9f31077f895e9cb417f5386519
                                       Hazardous Air                          941a47&mc=true&node=sp40.14.63.ddd
                                       Pollutants for                         dd&rgn=div6.
                                       Major Sources:
                                       Industrial,
                                       Commercial, and
                                       Institutional
                                       Boilers and
                                       Process Heaters.
40 CFR part 63, subpart ZZZZ........  Subpart ZZZZ--      Reciprocating      http://www.ecfr.gov/cgi-bin/text-
                                       National            Internal           idx?c=ecfr;rgn=div6;view=text;node
                                       Emissions           Combustion         =40%3A14.0.1.1.1.1;idno=40;sid=e94
                                       Standards for       Engines.           dcfde4a04b27290c445a56e635e58;cc=e
                                       Hazardous Air                          cfr.
                                       Pollutants for
                                       Stationary
                                       Reciprocating
                                       Internal
                                       Combustion
                                       Engines.
40 CFR part 60, subpart IIII........  Standards of        Compression        http://www.ecfr.gov/cgi-bin/text-
                                       Performance for     Ignition           idx?SID=9f31077f895e9cb417f5386519
                                       Stationary          Internal           941a47&mc=true&node=sp40.7.60.iiii
                                       Compression         Combustion         &rgn=div6.
                                       Ignition Internal   Engines.
                                       Combustion
                                       Engines.
40 CFR part 60, subpart JJJJ........  Standards of        Spark Ignition     http://www.ecfr.gov/cgi-bin/text-
                                       Performance for     Internal           idx?SID=9f31077f895e9cb417f5386519
                                       Stationary Spark    Combustion         941a47&mc=true&node=sp40.7.60.jjjj
                                       Ignition Internal   Engines.           &rgn=div6.
                                       Combustion
                                       Engines.
40 CFR part 60, subpart Kb..........  Standards of        Fuel Storage       http://www.ecfr.gov/cgi-bin/text-
                                       Performance for     Tanks.             idx?SID=9f31077f895e9cb417f5386519
                                       Volatile Organic                       941a47&mc=true&node=sp40.7.60.k_0b
                                       Liquid Storage                         &rgn=div6.
                                       Vessels
                                       (Including
                                       Petroleum Liquid
                                       Storage Vessels)
                                       for Which
                                       Construction,
                                       Reconstruction,
                                       or Modification
                                       Commenced After
                                       July 23, 1984.
40 CFR part 60, subpart OOOOa.......  Standards of        Storage Vessels,   https://www.epa.gov/controlling-air-
                                       Performance for     Pneumatic          pollution-oil-and-natural-gas-
                                       Crude Oil and       Controllers,       industry/actions-and-notices-about-
                                       Natural Gas         Compressors        oil-and-natural-gas.
                                       Facilities for      (Reciprocating
                                       which               and
                                       Construction,       Centrifugal),
                                       Modification, or    Hydraulically
                                       Reconstruction      Fractured Oil
                                       Commenced after     and Natural Gas
                                       September 18,       Well
                                       2015.               Completions,
                                                           Pneumatic Pumps
                                                           and Fugitive
                                                           Emissions from
                                                           Well Sites and
                                                           Compressor
                                                           Stations.
40 CFR part 63, subpart HH..........  National Emission   Glycol             http://www.ecfr.gov/cgi-bin/text-
                                       Standards for       Dehydrators.       idx?SID=9f31077f895e9cb417f5386519
                                       Hazardous Air                          941a47&mc=true&node=sp40.11.63.hh&
                                       Pollutants from                        rgn=div6.
                                       Oil and Natural
                                       Gas Production
                                       Facilities.

[[Page 20783]]

 
40 CFR part 60, subpart KKKK........  Standards of        Combustion         http://www.ecfr.gov/cgi-bin/text-
                                       Performance for     Turbines.          idx?SID=4090b6cf5eea5cb67940a80906
                                       New Stationary                         ff09a2&mc=true&node=sp40.7.60.kkkk
                                       Combustion                             &rgn=div6.
                                       Turbines.
----------------------------------------------------------------------------------------------------------------

3. National O&NG FIP and Areas of Comment the EPA Received Relevant to 
This Action
---------------------------------------------------------------------------

    \27\ Three of the eight rules are NESHAPs. Our basis for 
requiring compliance with NESHAPs in this rule that is designed to 
fulfill requirements of the Federal Indian Country Minor NSR rule is 
to address emissions of criteria pollutants. The requirements from 
the NESHAPs are included because they effectively control emissions 
of all VOC, not just those that are also hazardous air pollutants. 
VOC is an NSR-regulated pollutant of concern in the Federal Indian 
Country Minor NSR rule.
---------------------------------------------------------------------------

    In the response to comments section of the preamble to the final 
rule establishing the National O&NG FIP, we addressed some issues that 
are related to this proposed action.\28\ We provided that the FIP does 
not apply in a nonattainment area, but that it could, if we addressed 
existing sources in such an area.\29\ We stated that, parallel to 
designating such an area is designated as nonattainment, we would 
promulgate an area-specific FIP for existing sources if we determine 
that it is ``necessary or appropriate'' to do so pursuant to the 
TAR.\30\ We received comments concerning extending the geographic reach 
of the National O&NG FIP to nonattainment areas. Commenters were 
concerned with how permitting requirements would be satisfied in such 
areas during the transition period between the time an area is 
designated as nonattainment and the time a separate, area-specific FIP 
to control emissions adequately in such a nonattainment area is in 
place. The Uinta Basin was given as an example of where the absence of 
a streamlined means to satisfy permitting requirements during this 
transition period could pose problems. In response to the comments, we 
stated our intent to potentially apply the National O&NG FIP's 
requirements as appropriate to nonattainment areas, where the EPA has 
established a separate, area-specific FIP. As discussed earlier, our 
proposed approach here is slightly different, in that the extension of 
the National O&NG FIP to the Uinta Basin nonattainment area may precede 
the separate, area-specific FIP for that area. However, our plan is for 
the separate, area-specific FIP to be in place before the next winter 
ozone season. Because, as discussed above, ozone problems in the Uinta 
Basin are limited to the winter season, we believe this approach is 
appropriately protective of air quality, without unduly impeding oil 
and natural gas activity in Indian Country.
---------------------------------------------------------------------------

    \28\ 81 FR 35943, June 3, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
    \29\ In the preamble to the final National O&NG FIP we also 
indicated as a general matter--and not in response to comments--that 
new and modified sources also need to be addressed in reservation-
specific FIPs (in addition to existing sources) when considering 
whether to extend the geographic coverage of the National O&NG FIP 
to nonattainment area. 81 FR 35943, 35964, 35968, June 3, 2016, 
https://www.gpo.gov/fdsys/pkg/FR-2016-06-03/pdf/2016-11969.pdf.
    \30\ 63 FR 7254, February 12, 1998, http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/98-3451.pdf.
---------------------------------------------------------------------------

    In addition, we received comments recommending that we add 
monitoring and modeling requirements to the National O&NG FIP. Our 
response to those comments included a discussion about the state of air 
quality in areas of Indian country with oil and natural gas activity. 
With respect to air quality in areas of Indian country with oil and 
natural gas development, we noted in June 2016 when we promulgated the 
National O&NG FIP that we were not seeing widespread air quality 
problems in Indian country due to oil and natural gas activity. We 
mentioned in June 2016 that, in all of Indian country, only two 
counties in the Uinta Basin (including land within the U&O Reservation) 
had air quality problems due to oil and natural gas activity. That is 
still the case and is discussed further in Section III.C. We had (and 
still have) sufficient concerns about the air quality impacts from 
existing sources in that area that we intend to soon propose a separate 
reservation-specific FIP, which, as noted above, is expected to be in 
place before next winter's ozone season.

B. Uinta Basin Air Quality and Intended Nonattainment Designation

    On October 1, 2015, the EPA promulgated revised primary and 
secondary ozone NAAQS.\31\ The EPA strengthened both standards to a 
level of 0.070 parts per million (ppm). In accordance with section 
107(d) of the CAA, whenever the EPA establishes a new or revised NAAQS, 
the EPA must promulgate designations for all areas of the country for 
that NAAQS. The EPA must complete this process within 2 years of 
promulgating the NAAQS, unless the Administrator has insufficient 
information to make the initial designations decisions in that time 
frame. In such circumstances, the EPA may take up to 1 additional year 
to complete the designations. Under CAA section 107(d), states were 
required to submit area designation recommendations to the EPA for the 
2015 ozone NAAQS no later than 1 year following promulgation of the 
standards (i.e., by October 1, 2016).
---------------------------------------------------------------------------

    \31\ ``National Ambient Air Quality Standards for Ozone,'' U.S. 
Environmental Protection Agency, 80 FR 65292, October 26, 2015, 
https://www.gpo.gov/fdsys/pkg/FR-2015-10-26/pdf/2015-26594.pdf.
---------------------------------------------------------------------------

    On September 29, 2016, the state of Utah provided designation 
recommendations for counties in Utah based on air quality data from 
2013-2015. The state recommended a designation of nonattainment for 
townships in the counties of Duchesne and Uintah under state air 
jurisdiction that are at and below the 6,000-ft elevation. On February 
26, 2018, the state of Utah provided further input on the nonattainment 
boundaries. On September 27, 2016, the Ute Indian Tribe of the Uintah 
and Ouray Reservation recommended that the Indian country area at an 
unspecified distance around the Ouray ozone monitor in the Uinta Basin 
be designated as nonattainment for the 2015 ozone NAAQS based on air 
quality data from 2013-2015. However, the Tribe recommended a 
designation of attainment for all of Indian country in the Uinta Basin, 
assuming the EPA concurs with an exceptional event package submitted to 
the agency (by the Tribe) covering two days in June 2015.
    On December 20, 2017, in our response to the state and tribal 
designation boundary recommendations, we indicated our intent to modify 
the state's and tribe's recommendations for the Uinta Basin area. We 
provided the intended

[[Page 20784]]

boundary in a Technical Support Document.\32\ In short, the EPA's 
boundary for the intended nonattainment area for the Uinta Basin 
includes both state and Indian country lands within portions of 
Duchesne and Uintah Counties. A comment period followed the EPA's 
statement on its intended nonattainment boundaries for the Uinta Basin 
and other areas.\33\
---------------------------------------------------------------------------

    \32\ Utah: Northern Wasatch Front, Southern Wasatch Front, and 
Uinta Basin Intended Area Designations for the 2015 Ozone National 
Ambient Air Quality Standards Technical Support Document (TSD),'' 
U.S. Environmental Protection Agency, December 20, 2017, https://www.epa.gov/sites/production/files/2018-01/documents/ut_120d_tsd.pdf.
    \33\ 83 FR 651, January 5, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-01-05/pdf/2018-00024.pdf.
---------------------------------------------------------------------------

IV. Summary of Proposed Amendments

    This action proposes to amend the National O&NG FIP to extend its 
application to eligible true minor oil and natural gas sources in the 
Indian country portion of the intended Uinta Basin Ozone Nonattainment 
Area, which includes its mechanism for authorizing construction. We 
also are proposing to make a technical correction to fix a 
typographical error in Sec.  49.101(c).
    First, this action proposes to add a new subparagraph to the CFR, 
to be codified at Sec.  49.101(e). In the new subparagraph, we are 
proposing to narrowly extend the geographic scope of the National O&NG 
FIP to cover eligible true minor oil and natural gas sources wishing to 
locate or expand in the Indian country portion (U&O Reservation) of the 
intended Uinta Basin Ozone Nonattainment Area.\34\ This proposed 
extension of coverage to this one nonattainment area does not alter the 
FIP's current geographic coverage of attainment, unclassifiable and 
attainment/unclassifiable areas with regard to the rest of Indian 
country across the nation. The proposed, geographically limited 
extension is in addition to the current coverage. Under this proposed 
amendment, true minor oil and natural gas sources in the oil and 
natural gas production and natural gas processing segments of the oil 
and natural gas sector wishing to locate or expand in the Indian 
country portion of the intended Uinta Basin Ozone Nonattainment Area 
would also have to meet the criteria under Sec.  49.101(b)(1) to 
qualify, except for Sec.  49.101(b)(1)(v). Section 49.101(b)(1)(v) 
contains the requirement governing the primary geographic scope of the 
FIP and not its limited extension to the intended Uinta Basin Ozone 
Nonattainment Area, and, thus, would not be relevant for such sources. 
In other words, the new paragraph Sec.  49.101(e) would displace 
existing Sec.  49.101(b)(1)(v) for Indian country within the intended 
Uinta Basin Ozone Nonattainment Area--and only for that area of Indian 
country.
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    \34\ Utah: Northern Wasatch Front, Southern Wasatch Front, and 
Uinta Basin Intended Area Designations for the 2015 Ozone National 
Ambient Air Quality Standards Technical Support Document (TSD),'' 
U.S. Environmental Protection Agency, December 20, 2017, https://www.epa.gov/sites/production/files/2018-01/documents/ut_120d_tsd.pdf.
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    To accomplish this extension, it is also necessary to define the 
boundaries of the intended Uinta Basin Ozone Nonattainment Area to 
which the National O&G FIP would apply if the EPA finalizes this 
proposed rule. To accomplish this, the EPA proposes to incorporate the 
boundaries for the intended nonattainment area for the Uinta Basin, or 
areas within the Uinta Basin, as defined at 40 CFR part 81, 
Designations of Areas for Air Quality Purposes.\35\ The regulatory and 
other processes that have occurred within and outside the EPA and 
between the EPA and state and tribal governments govern the development 
and final decision on the boundaries for the intended Uinta Basin Ozone 
Nonattainment Area and not this action.
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    \35\ Ibid.
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    Second, this action proposes a technical correction to Sec.  
49.101(c), which currently reads: ``When must I comply with Sec. Sec.  
49.101 through 49.105? You must comply with Sec. Sec.  49.101 through 
49.101 on or after October 3, 2016.'' This provision is supposed to 
reference Sec. Sec.  49.101 through 49.105, as the title indicates. We 
are proposing to correct it to read: ``When must I comply with 
Sec. Sec.  49.101 through 49.105? You must comply with Sec. Sec.  
49.101 through 49.105 on or after October 3, 2016.'' The EPA believes 
that this is a correction of a self-evident scrivener's error and does 
not constitute a substantive change of the existing regulatory 
provision.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, 
therefore, not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is expected to be an Executive Order 13771 deregulatory 
action. This proposed rule is expected to provide meaningful burden 
reduction by extending the streamlined authorization-to-construct 
method for true minor new and modified oil and natural gas sources. The 
streamlined authorization, which was established by the EPA in 2016, 
reduces the resource burden on the permitting authority and regulated 
community associated with submitting and reviewing permit applications 
for these sources in attainment and unclassifiable areas. This action 
proposes to extend the streamlined authorization to the intended Uinta 
Basin Ozone Nonattainment Area.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the Federal Indian Country Minor NSR rule and 
has assigned OMB control number 2060-0003.\36\ This action amends the 
National O&NG FIP which provides a mechanism for authorizing 
construction for true minor sources in the oil and natural gas 
production and natural gas processing segments of the oil and natural 
gas sector locating or located in areas covered by the Federal Indian 
Country Minor NSR rule to satisfy the requirements of that rule other 
than by obtaining a source-specific minor source permit. Because it 
substitutes for a source-specific permit, which would contain 
information collection activities covered by the Information Collection 
Request for Federal Indian Country Minor NSR rule issued in July 2011, 
neither the proposed amendments nor the National O&NG FIP impose any 
new obligations or enforceable duties on any state, local or tribal 
government or the private sector. In fact, the proposed amendments 
would have the effect of reducing paperwork burden on sources wishing 
to locate or expand in the Indian country portion of the Uinta Basin as 
the amendments provide an alternative to source-specific permitting for 
such sources.
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    \36\ Since the Federal Indian Country Minor NSR rule was 
promulgated, the Information Collection Request has been renewed and 
approved by OMB twice. The most recent approval extended the ICR 
until October 31, 2020. The ICR covers the activities of the 
National O&NG FIP. For more information, go to: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201702-2060-005.
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D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this

[[Page 20785]]

determination, the impact of concern is any significant adverse 
economic impact on small entities. An agency may certify that a rule 
will not have a significant economic impact on a substantial number of 
small entities if the rule relieves regulatory burden, has no net 
burden or otherwise has a positive economic effect on the small 
entities subject to the rule. The EPA analyzed the impact on small 
entities of streamlined permitting under the Federal Indian Country 
Minor NSR rule \37\ and determined that it would not have a significant 
economic impact on a substantial number of small entities. (By allowing 
sources to avoid having to obtain source-specific permits, this 
proposed action also would relieve regulatory burden.) This action 
merely implements a particular aspect of the Federal Indian Country 
Minor NSR rule. We have, therefore, concluded that this action will 
have no net regulatory burden for all directly regulated small 
entities.
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    \37\ ``Review of New Sources and Modifications in Indian 
Country,'' U.S. Environmental Protection Agency, 76 FR 38748, July 
1, 2011, https://www.federalregister.gov/articles/2011/07/01/2011-14981/review-of-new-sources-and-modifications-in-indian-country.
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E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandates, as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal government or the private sector. It simply modifies 
one option for sources to comply with the Federal Indian Country Minor 
NSR rule. The Federal Indian Country Minor NSR rule itself, not this 
proposed action, imposes the obligation that true minor sources in 
areas covered by the Federal Indian Country Minor NSR rule obtain a 
minor source NSR permit prior to commencing construction. This proposed 
action merely applies the National O&NG FIP to the U&O Reservation as 
part of the Uinta Basin Nonattainment Area, which includes a 
streamlined mechanism for authorizing construction for meeting the 
obligation of the Federal Indian Country minor NSR rule.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It would not 
have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. Consistent with the EPA 
Policy on Consultation and Coordination with Indian Tribes (May 4, 
2011),\38\ the EPA offered consultation on the concerns addressed in 
this proposed action, which include the lack of a streamlined 
permitting for the U&O Reservation should the area be designated 
nonattainment. The EPA conducted outreach on the issues addressed by 
the previous rule via ongoing monthly meetings with tribal 
environmental professionals in the development of the past proposed 
action,\39\ and further as follows via: (1) Tribal consultation with 
the Ute Indian Tribe Business Committee on July 22, 2015; December 17, 
2016; November 13, 2017; and March 22, 2018, regarding options that the 
EPA considered in addressing the Uinta Basin air quality concerns; (2) 
stakeholder meetings where the Tribe was included and participated in 
emissions contributions discussions specific to the EPA's strategy for 
addressing the Uinta Basin air quality concerns; (3) ongoing 
stakeholder working group meetings; and (4) tribally-convened 
stakeholder meetings on March 22, 2017, and June 1-2, 2017.
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    \38\ For more information, go to: https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes.
    \39\ These monthly meetings are general in nature, dealing with 
many air-related topics, and are not specific to this proposed 
action.
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    This action reflects tribal concerns about, and priorities for, 
developing a streamlined approach for permitting true minor sources in 
the oil and natural gas sector in areas covered by the Federal Indian 
Country Minor NSR rule in the intended Uinta Basin Ozone Nonattainment 
Area. As these amendments, if finalized, are implemented, we will 
continue to provide regular outreach to tribes to ensure we address 
issues concerning the FIP if and when they arise. The EPA is available 
for consultation with any interested tribe.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    As discussed in Section II.B, we believe that this action is 
reasonable in light of our intended, separate rulemaking to establish a 
reservation-specific FIP and the expected short period of time before 
these requirements would apply. Therefore, the EPA believes the 
amendments in this action will not have potential disproportionately 
high and adverse human health or environmental effects on minority, 
low-income or indigenous populations. Through these amendments, we 
seek: (1) To extend geographically the National O&NG FIP and its 
mechanism for authorizing construction that effectively provides a 
streamlined method for implementing a pre-construction permitting 
program for true minor sources in the oil and natural gas sector in 
areas covered by the Federal Indian Country Minor NSR rule, and (2) to 
pursue an approach that enables a streamlined process, which helps 
promote economic development by minimizing delays in new construction.

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practices and procedures, 
Air pollution control, Indians, Indians--law, Indians--tribal 
government, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: April 30, 2018.
E. Scott Pruitt,
Administrator.

    For the reasons set forth in the preamble, 40 CFR part 49 is 
proposed to be amended as follows:

[[Page 20786]]

PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT

0
1. The authority citation for part 49 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart C--General Federal Implementation Plan Provisions

0
2. In Sec.  49.101:
0
a. Revise paragraph (c).
0
b. Add paragraph (e).
    The revision and addition read as follows:


Sec.  49.101  Introduction.

* * * * *
    (c) When must I comply with Sec. Sec.  49.101 through 49.105? You 
must comply with Sec. Sec.  49.101 through 49.105 on or after October 
3, 2016.
* * * * *
    (e) Notwithstanding paragraph (b)(1)(v), oil and natural gas 
sources located in the Indian country portion of the Uinta Basin Ozone 
Nonattainment Area are subject to Sec. Sec.  49.101 through 49.105 
(except for paragraph (b)(1)(v)), provided subparagraphs (b)(1)(i)-(iv) 
are also satisfied.
0
3. In Sec.  49.102, add the definition ``Uinta Basin ozone 
nonattainment area'' in alphabetical order to read as follows:


Sec.  49.102  Definitions.

* * * * *
    Uinta Basin ozone nonattainment area means the nonattainment area 
for the Uinta Basin, or such parts or areas of the Uinta Basin, as it 
is or may hereafter be defined at 40 CFR part 81, Designations of Areas 
for Air Quality Purposes.

[FR Doc. 2018-09652 Filed 5-7-18; 8:45 am]
 BILLING CODE 6560-50-P


