Vol. 81 Friday, 

No. 107 June 3, 2016 

Part III 

Environmental Protection Agency 

40 CFR Part 49 

Federal Implementation Plan for True Minor Sources in Indian Country in 

the Oil and Natural Gas Production and Natural Gas Processing Segments 

of the Oil and Natural Gas Sector; Amendments to the Federal Minor New 

Source Review Program in Indian Country To Address Requirements for 

True Minor Sources in the Oil and Natural Gas Sector; Final Rule 

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35944 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–HQ–OAR–2014–0606; FRL–9946–56– 

OAR] 

RIN 2060–AS27 

Federal Implementation Plan for True 

Minor Sources in Indian Country in the 

Oil and Natural Gas Production and 

Natural Gas Processing Segments of 

the Oil and Natural Gas Sector; 

Amendments to the Federal Minor New 

Source Review Program in Indian 

Country To Address Requirements for 

True Minor Sources in the Oil and 

Natural Gas Sector 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing a federal 

implementation plan (FIP) that applies 

to new true minor sources and minor 

modifications at existing true minor 

sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector that are locating or expanding in 

Indian reservations or in other areas of 

Indian country over which an Indian 

tribe, or the EPA, has demonstrated the 

tribe’s jurisdiction. The FIP satisfies the 

minor source permitting requirement 

under the ‘‘Federal Minor New Source 

Review (NSR) Program in Indian 

Country’’ (referred to as the ‘‘Federal 

Indian Country Minor NSR rule’’). For 

the oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector, the FIP 

requires compliance with emission 

limitations and other requirements from 

certain federal emission standards as 

written at the time of construction or 

modification for compression ignition 

and spark ignition engines; process 

heaters; combustion turbines; fuel 

storage tanks; glycol dehydrators; 

completion of hydraulically fractured 

oil and natural gas wells; reciprocating 

and centrifugal compressors (except 

those located at well sites); pneumatic 

controllers; pneumatic pumps; storage 

vessels; and fugitive emissions from 

well sites, compressor stations and 

natural gas processing plants. 

The EPA is also finalizing several 

amendments to the Federal Indian 

Country Minor NSR rule, including 

adding new text regarding the purpose 

of the program, revising the program 

overview provision, revising certain 

provisions to incorporate compliance 

with the FIP, revising the applicability 

provision to establish that oil and 

natural gas sources are required to 

comply with the FIP unless they either 

opt to obtain a source-specific permit or 

are otherwise required to do so, and 

revising the source registration 

provision for oil and natural gas sources 

constructing under this FIP. Also, we 

are revising the applicability of the 

Federal Indian Country Minor NSR rule 

to comport with a court decision that 

addressed the scope of the EPA’s 

jurisdiction to implement the Federal 

Indian Country Minor NSR rule in 

Indian country: Oklahoma Dept. of 

Environmental Quality v. EPA, 740 F.3d 

185 (D.C. Cir. 2014). This court decision 

has the same effect on the scope of the 

EPA’s jurisdiction under the Federal 

Major New Source Review Program for 

Nonattainment Areas in Indian Country 

and so we are changing the applicability 

of the Federal Indian Country 

Nonattainment Major NSR rule as well. 

DATES: This final rule is effective on 

August 2, 2016. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2014–0606. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available electronically 

through http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Christopher Stoneman, Outreach and 

Information Division, Office of Air 

Quality Planning and Standards 

(C–304–01), Environmental Protection 

Agency, Research Triangle Park, North 

Carolina, 27711, telephone number 

(919) 541–0823, facsimile number (919) 

541–0072, email address: 

stoneman.chris@epa.gov. For questions 

about the applicability of this action to 

a particular source, please contact the 

appropriate EPA region: 

• EPA Region 5 (Illinois, Indiana, 

Michigan, Minnesota, Ohio, and 

Wisconsin)—Ms. Genevieve Damico, 

Air Permits Section, Environmental 

Protection Agency, Region 5, Chicago, 

Illinois 60604; telephone number (312) 

353–4761; fax (312) 385–5501; email 

address: damico.genevieve@epa.gov. 

• EPA Region 6 (Arkansas, Louisiana, 

New Mexico, Oklahoma, and Texas)— 

Ms. Bonnie Braganza, Air Permits 

Section, Multimedia Permitting and 

Planning Division, Environmental 

Protection Agency Region 6, Dallas, 

Texas 75202; telephone number (214) 

665–7340; fax number (214) 665–6762; 

email address: braganza.bonnie@

epa.gov. 

• EPA Region 8 (Colorado, Montana, 

North Dakota, South Dakota, Utah, and 

Wyoming)—Ms. Claudia Smith, Air 

Program, Mail Code 8P–AR, 

Environmental Protection Agency 

Region 8, Denver, Colorado 80202; 

telephone number (303) 312–6520; fax 

number (303) 312–6520; email address: 

smith.claudia@epa.gov. 

• EPA Region 9 (Arizona, California, 

Hawaii, Nevada, and Pacific Islands)— 

Ms. Lisa Beckham, Permits Office, Air 

Division, Air-3, Environmental 

Protection Agency Region 9, San 

Francisco, California 94105; telephone 

number (415) 972–3811; fax number 

(415) 947–3579; email address: 

beckham.lisa@epa.gov. 

• All other EPA regions—The permit 

reviewer for minor sources in Indian 

country for your EPA region. You can 

find the list of the EPA permit reviewers 

at: https://www.epa.gov/tribal-air/tribalminor-new-source-review. Scroll down 

to the heading, ‘‘Existing Source 

Registration,’’ and click on ‘‘Reviewing 

Authority’’ to access ‘‘Environmental 

Protection Agency’s Reviewing 

Authorities for Permits.’’ 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. General Information 

A. What entities are potentially affected by 

this final action? 

B. Where can I get a copy of this document 

and other related information? 

II. Summary of Final Oil and Natural Gas FIP 

A. Overview 

B. Eight Federal Rules and Exclusions in 

FIP 

C. Addressing Threatened and Endangered 

Species and Historic Properties 

D. Summary of Final Amendments to the 

Federal Indian Country Minor NSR Rule 

III. Background 

A. Federal Indian Country Minor NSR Rule 

B. What is a FIP? 

C. Oil and Natural Gas Sector 

D. EPA Actions Affecting Oil and Natural 

Gas Minor Sources in Areas Covered by 

the Federal Indian Country Minor NSR 

Rule 

IV. Summary of Final Action, Comments and 

Responses 

A. Overview of Changes to the FIP and 

Federal Indian Country Minor NSR Rule 

B. Proposed Amendments to the Federal 

Indian Country Minor NSR Rule 

C. Implementation-Related Issues 

D. Requirements Relating to Threatened or 

Endangered Species and Historic 

Properties 

E. Rationale for the FIP 

F. The FIP as an Alternative to SourceSpecific Permits, General Permits and 

Permits by Rule 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35945 

1Under § 49.52(d), true minor source means a 

source, not including the exempt emissions units 

and activities listed in § 49.153(c), that emits, or has 

the potential to emit, regulated NSR pollutants in 

amounts that are less than the major source 

thresholds in § 49.167 or § 52.21, as applicable, but 

equal to or greater than the minor NSR thresholds 

in § 49.153, without the need to take an enforceable 

restriction to reduce its potential to emit to such 

levels. That is, a true minor source is a minor 

source that is not a synthetic minor source. The 

potential to emit includes fugitive emissions, to the 

extent that they are quantifiable, only if the source 

belongs to one of the source categories listed in part 

51, appendix S, paragraph II.A.4(iii) or 

§ 52.21(b)(1)(iii), as applicable. 

G. Synthetic Minor Sources and Minor 

Modifications at Major Sources 

H. Nonattainment Areas 

I. How the EPA Selected Equipment 

Included in the Proposed FIP 

J. Pollutants Included in the Proposed FIP 

K. Exclusion of Existing Sources From the 

Proposed Oil and Natural Gas FIP 

L. General Comments (e.g., Administrative, 

Incorporate by Reference) 

M. Other Comments 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

I. General Information 

A. What entities are potentially affected 

by this final action? 

Entities potentially affected by this 

action consist of owners/operators of 

facilities included in the following 

source categories that are located, or 

planning to locate, in an Indian 

reservation or in another area of Indian 

country (as defined in 18 U.S.C. 1151) 

over which an Indian tribe, or the EPA, 

has demonstrated that the tribe has 

jurisdiction where there is no EPAapproved program in place and that are 

subject to the requirements of the 

Federal Indian Country Minor NSR rule. 

TABLE 1—SOURCE CATEGORIES AFFECTED BY THIS ACTION

Industry category NAICS Code a Examples of regulated entities/description of industry category 

Oil and Natural Gas Production/Operations.21111 Exploration for crude petroleum and natural gas; drilling, completing, and equipping 

wells; operation of separators, emulsion breakers, desilting equipment, and field 

gathering lines for crude petroleum and natural gas; and all other activities in the 

preparation of oil and natural gas up to the point of shipment from the producing 

property. 

Production of crude petroleum, the mining and extraction of oil from oil shale and 

oil sands, the production of natural gas, sulfur recovery from natural gas, and the 

recovery of hydrocarbon liquids from oil and natural gas field gases. 

Crude Petroleum and Natural Gas Extraction.211111 Exploration, development and/or the production of petroleum or natural gas from 

wells in which the hydrocarbons will initially flow or can be produced using normal pumping techniques or production of crude petroleum from surface shales or 

tar sands or from reservoirs in which the hydrocarbons are semisolids. 

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 Wells ............ 213111 Drilling oil and 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 Natural Gas 

Operations.

213112 Performing support activities on a contract or fee basis for oil and natural gas operations (except site preparation and related construction activities) such as exploration (except geophysical surveying and mapping); excavating slush pits and 

cellars, well surveying; running, cutting, and pulling casings, tubes, and rods; cementing wells, shooting wells; perforating well casings; acidizing and chemically 

treating wells; and cleaning out, bailing, and swabbing wells. 

Engines (Spark Ignition and Compression 

Ignition) for Electric Power Generation.

** 2211 Provision of electric power to support oil and natural gas production where access 

to the electric grid is unavailable. 

a North American Industry Classification System. 

This list is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

potentially affected by this action. To 

determine whether your facility could 

be affected by this action, you should 

examine the applicability criteria in the 

final Federal Minor NSR Program in 

Indian Country (40 Code of Federal 

Regulations (CFR) 49.153), as well as the 

FIP applicability in § 49.101. If you have 

any questions regarding the 

applicability of this action to a 

particular entity, contact the appropriate 

person listed in the FOR FURTHER

INFORMATION CONTACT section. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

rule will also be available on the World 

Wide Web. Following signature by the 

EPA Administrator, a copy of this final 

rule will be posted in the regulations 

and standards section of our NSR home 

page located at http://www.epa.gov/nsr 

and on the tribal NSR page at https://

www.epa.gov/tribal-air/tribal-minornew-source-review. 

II. Summary of Final Oil and Natural 

Gas FIP 

A. Overview 

We are finalizing a FIP to protect air 

quality in Indian country due to the 

impact of new true minor sources 1 and 

minor modifications at existing true 

minor sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector that are locating or expanding in 

an Indian reservation or in another area 

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35946 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

2Though 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. 

3 ‘‘Oil and Natural Gas Sector: Emission 

Standards for New, Reconstructed and Modified 

Sources,’’ U.S. Environmental Protection Agency, 

signed May 12, 2016, http://www.epa.gov/

airquality/oilandgas/actions.html. 

4The proposed FIP only included six emissions 

standards; in response to comments, we are adding 

two more, bringing the total to eight. For a 

discussion of this expansion and the pertinent 

comments, see Section IV.I. 

of Indian country over which a tribe, or 

the EPA, has demonstrated that the tribe 

has jurisdiction. The FIP applies to new 

and modified true minor sources that 

are located or expanding in the 

referenced areas of Indian country 

designated as attainment, unclassifiable 

or attainment/unclassifiable. It does not 

apply to new and modified true minor 

sources that are located or expanding in 

referenced areas of Indian country 

designated nonattainment. The FIP does 

not apply to minor modification of 

major sources; such sources are required 

to obtain a source-specific permit prior 

to beginning construction starting 

September 2, 2014, per the Federal 

Indian Country Minor NSR rule. 

However, in response to comments, 

we are stating here our intent to 

potentially apply this national FIP’s 

requirements as appropriate to 

nonattainment areas where the EPA has 

established a separate, area-specific FIP. 

In that separate, area-specific action, we 

would propose—and seek comment 

on—the application of this FIP’s 

requirements to new and modified true 

minor sources in those certain areas 

designated nonattainment. This 

possible, future extension of coverage of 

this FIP could provide a mechanism for 

streamlining permitting in 

nonattainment areas, protecting air 

quality and allowing continued oil and 

natural gas growth in Indian country. 

This FIP fulfills the EPA’s obligation 

under the Federal Indian Country Minor 

NSR rule to issue minor source NSR 

pre-construction permits. The FIP 

provides a streamlined, alternative 

approach that fulfills the permitting 

requirement, while also ensuring air 

quality protection through requirements 

that are unambiguous and legally and 

practicably enforceable. The FIP 

approach is also transparent to the 

public; it is clear to the public what 

requirements will apply. The FIP 

reduces burden for sources and the 

Reviewing Authority and minimizes 

potential delays in new construction 

due to compliance with the minor NSR 

permitting obligation. True minor 

sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector are required to comply with the 

FIP instead of obtaining a sourcespecific minor source permit, unless a 

source chooses to opt out of the FIP and 

to obtain a source-specific minor NSR 

permit instead. In addition, with 

advance notice the Reviewing Authority 

can require a source to obtain a sourcespecific permit based on local or 

reservation-specific air quality concerns 

where the emissions from the source 

could cause or contribute to a National 

Ambient Air Quality Standards 

(NAAQS) or Prevention of Significant 

Deterioration (PSD) increment violation. 

To protect the NAAQS, the Reviewing 

Authority can regulate emissions from 

operations at the minor source not 

regulated by the FIP, or can require 

more stringent emission limitations for 

operations at the source than would be 

required by the FIP. 

In this FIP, we require owners/

operators of oil and natural gas 

production facilities and natural gas 

processing plants to comply with eight 

federal standards to reduce emissions of 

volatile organic compounds (VOC), 

nitrogen oxides (NOX), sulfur dioxide 

(SO2), particulate matter (PM, PM10, 

PM2.5), hydrogen sulfide (H2S), carbon 

monoxide (CO) and various sulfur 

compounds from the following units/

processes in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector: Compression ignition and spark 

ignition engines; process heaters; 

combustion turbines; fuel storage tanks; 

glycol dehydrators; completion of 

hydraulically fractured oil and natural 

gas wells; reciprocating and centrifugal 

compressors (except those located at 

well sites); pneumatic controllers; 

pneumatic pumps, and storage vessels; 

fugitive emissions from well sites; 

compressor stations and natural gas 

processing plants. The oil and natural 

gas FIP requires compliance with five 

NSPS and three national emission 

standards for hazardous air pollutants 

(NESHAP).2 These regulations are listed 

in Table 2. 

The eight regulations and the 

provisions of each that are included in 

the oil and natural gas FIP are discussed 

in more detail in this section. The FIP’s 

requirements include emission 

standards (that contain emission 

limitations), monitoring, testing, 

recordkeeping and reporting. For 

purposes of this FIP, true minor sources 

must comply with these standards, as 

they currently exist or as amended in 

the future, except for those provisions 

that we specifically exclude under the 

FIP (unless the source opts-out of the 

FIP and obtains a source-specific permit 

or is otherwise required to obtain a 

source-specific permit by the Reviewing 

Authority). This includes the 

amendments to the oil and natural gas 

NSPS that have become part of the final 

oil and natural gas NSPS as a result of 

the 2016 final oil and natural gas NSPS.3

Sources subject to this FIP would be 

subject to any future changes to the 

eight underlying EPA standards only if 

they undergo a future minor 

modification as a true minor sources 

and would otherwise be subject to those 

future changes. To help understand the 

requirements of this oil and natural gas 

FIP, please see the 2016 final oil and 

natural gas NSPS and the provisions for 

each of the eight federal rules (i.e., five 

NSPS and three NESHAP) identified in 

Table 2.4 (This FIP does not change the 

applicability of the specified standards, 

nor does it relieve sources subject to the 

standards from complying with them, 

independently of this FIP.) The 

excluded provisions are listed below. 

Also discussed in this section are 

features of the FIP and amendments to 

the Federal Indian Country Minor NSR 

rule that are largely necessary to 

facilitate implementation of the FIP. 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35947 

5Three of the eight rules are NESHAPs. Our basis 

for requiring compliance with NESHAPs in this rule 

that is designed to fulfill requirements of the 

Federal Indian Country Minor NSR rule is to 

address emissions of criteria pollutants. The 

requirements from the NESHAPs are included 

because they effectively control emissions of all 

VOC, not just those that are also HAP. VOC is an 

NSR-regulated pollutant of concern in the Federal 

Indian Country Minor NSR rule. 

6This regulation was not included in the 

proposed FIP but is being added to the final FIP in 

response to comments. 

7 Ibid. 

8Finalized 40 CFR part 60, subpart OOOOa, 

covers the emission sources covered under existing 

40 CFR part 60, subpart OOOO, as well as the 

added coverage of new, reconstructed and modified 

emission sources beyond those covered in existing 

40 CFR part 60, subpart OOOO. These additional 

sources are hydraulically fractured oil well 

completions, pneumatic pumps and fugitive 

emissions from well sites and compressor stations. 

9This list includes centrifugal compressors, 

reciprocating compressors, pneumatic controllers, 

pneumatic pumps, fugitive emissions from 

compressor stations, and storage vessels. It excludes 

sources located in the transmission and storage 

segment because they are not part of this FIP, which 

focusses on the oil and natural gas production and 

natural gas processing segments of the oil and 

natural gas sector. 

TABLE 2—EIGHT FEDERAL RULES INCLUDED IN THE OIL AND NATURAL GAS FIP FOR INDIAN COUNTRY 5

40 CFR part and subpart Title of subpart 

Potentially affected sources in the 

oil and natural gas production and 

natural gas processing segments 

of the oil and natural gas sector 

Location 

40 CFR part 63, subpart DDDDD .. National Emission Standards for 

Hazardous Air Pollutants for 

Major Sources: Industrial, Commercial, and Institutional Boilers 

and Process Heaters.

Process heaters ............................ http://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895e9cb417

f5386519941a47&mc=

true&node=sp40.14.63.ddd

dd&rgn=div6. 

40 CFR part 63, subpart ZZZZ 6 .... Subpart ZZZZ—National Emissions Standards for Hazardous 

Air Pollutants for Stationary Reciprocating Internal Combustion 

Engines.

Reciprocating Internal Combustion Engines.http://www.ecfr.gov/cgi-bin/textidx?c=ecfr;rgn=div6;view=text;

node=%3A14.0.1.1.1.1;idno=40;

sid=e94dcfde4a04b27290c445a

56e635e58;cc=ecfr. 

40 CFR part 60, subpart IIII ........... Standards of Performance for 

Stationary Compression Ignition 

Internal Combustion Engines.

Compression Ignition Internal 

Combustion Engines.

http://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895e9cb41

7f5386519941a47&mc=true&

node=sp40.7.60.iiii&rgn=div6. 

40 CFR part 60, subpart JJJJ ....... Standards of Performance for 

Stationary Spark Ignition Internal Combustion Engines.

Spark Ignition Internal Combustion Engines.http://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895

e9cb417f5386519941a47&

mc=true&node=sp40.7.60.jjjj&

rgn=div6. 

40 CFR part 60, subpart Kb .......... Standards of Performance for 

Volatile Organic Liquid Storage 

Vessels (Including Petroleum 

Liquid Storage Vessels) for 

Which Construction, Reconstruction, or Modification Commenced After July 23, 1984.

Fuel Storage Tanks ...................... http://www.ecfr.gov/cgi-bin/textidx?SID=9f31077

f895e9cb417f5386519941a47&

mc=true&node=sp40.7.60.k_

0b&rgn=div6. 

40 CFR part 60, subpart OOOOa 

(final).

Standards of Performance for 

Crude Oil and Natural Gas Facilities for which Construction, 

Modification, or Reconstruction 

Commenced after September 

18, 2015.

Storage Vessels, Pneumatic Controllers, Compressors (Reciprocating and Centrifugal), Hydraulically Fractured Oil and Natural 

Gas Well Completions, Pneumatic Pumps and Fugitive 

Emissions from Well Sites and 

Compressor Stations.

http://www.epa.gov/airquality/

oilandgas/actions.html. 

40 CFR part 63, subpart HH ......... National Emission Standards for 

Hazardous Air Pollutants from 

Oil and Natural Gas Production 

Facilities.

Glycol Dehydrators ....................... http://www.ecfr.gov/cgi-bin/textidx?SID=9f31077f895e9c

b417f5386519941a47

&mc=true&node=

sp40.11.63.hh&rgn=div6. 

40 CFR part 60, subpart KKKK7 ... Standards of Performance for 

New Stationary Combustion 

Turbines.

Combustion Turbines ................... http://www.ecfr.gov/cgi-bin/textidx?SID=4090b6cf5eea

5cb67940a80906ff09a2&

mc=true&node=

sp40.7.60.kkkk&rgn=div6. 

B. Eight Federal Rules and Exclusions in 

FIP 

This oil and natural gas FIP requires 

owners/operators of new and modified 

existing true minor sources in the oil 

and natural gas production and natural 

gas processing segments of the oil and 

natural gas sector that are located in 

areas covered by the Federal Indian 

Country Minor NSR rule to comply with 

eight federal rules. One of the rules this 

FIP adopts is certain requirements of the 

final 40 CFR part 60, subpart OOOOa 

NSPS.8 Requirements under the final 

NSPS, subpart OOOOa involve 

standards for oil and natural gas 

production and natural gas processing.9

We are requiring under this FIP that 

owners/operators of new true minor 

sources and modifications of existing 

true minor sources comply with all 

applicable requirements of the eight 

federal rules listed in Table 2 above in 

effect at the time they begin 

construction, except for the excluded 

provisions indicated below. In general, 

for this FIP, we are excluding specific 

provisions of the rules for three reasons: 

(1) They are not relevant (e.g., 

equipment that is not used in this 

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35948 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

10 ‘‘Written at the time’’ for a rule means as 

currently written and as may be amended in the 

future. 

11 In the proposal, we excluded the following 

provision that we are now not excluding because 

area sources that are also true minor sources may 

be subject to this rule: § 60.4200(c)—Am I subject 

to this subpart? (area sources and exemptions from 

Title V permits). 

12 In the proposal, we excluded the following 

provision that we are now not excluding because 

we have expanded the scope of this FIP to include 

gas processing plants: § 60.5365a(f)(3)—Equipment 

exemption at processing plant. 

13 In the proposal, we excluded the following 

provision that we are now not excluding because 

we have expanded the scope of this FIP to include 

gas processing plants: § 63.760(b)(1)(iii)— 

Equipment located at natural gas processing plants. 

Similarly, for the same reason, we have also 

modified the exclusion for § 63.764(c)(2) by 

removing ‘‘and equipment at natural gas processing 

plants, respectively.’’ 

sector); (2) they would not apply to the 

oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector; (3) they apply 

only to equipment manufacturers and 

not to owners/operators. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of 40 CFR part 63, 

subpart DDDDD (NESHAP for Major 

Sources: Industrial, Commercial, and 

Institutional Boilers and Process 

Heaters), as written at the time 10 the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of 40 CFR part 63, 

subpart ZZZZ (NESHAP for Stationary 

Reciprocating Internal Combustion 

Engines), as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of 49 CFR part 60, 

subpart IIII (Standards of Performance 

for Stationary Compression Ignition 

Internal Combustion Engines), as 

written at the time the owner/operator 

begins construction on the new true 

minor source or on the minor 

modification at an existing true minor 

source, except for the following: 11

• § 60.4200(a)(1)—Am I subject to this 

subpart? (applies to manufacturers); 

• § 60.4200(b)—Not applicable to a 

stationary ignition internal combustion 

engine being tested at an engine test 

cell/stand; 

• § 60.4201—What emission 

standards must I meet for nonemergency engines if I am a stationary 

compression ignition internal 

combustion engine manufacturer?; 

• § 60.4202—What emission 

standards must I meet for emergency 

engines if I am a stationary compression 

ignition internal combustion engine 

manufacturer?; 

• § 60.4203—How long must my 

engines meet the emission standards if 

I am a manufacturer of stationary 

compression ignition internal 

combustion engines?; 

• § 60.4210—What are my 

compliance requirements if I am a 

stationary compression ignition internal 

combustion engine manufacturer?; and 

• § 60.4215—What requirements 

must I meet for engines used in Guam, 

American Samoa, or the Commonwealth 

of the Northern Mariana Islands?. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of 40 CFR part 60, 

subpart JJJJ (Standards of Performance 

for Crude Oil and Natural Gas Facilities 

for which Construction, Modification, or 

Reconstruction Commenced after 

September 18, 2015), as written at the 

time the owner/operator begins 

construction on the new true minor 

source or on the minor modification at 

an existing true minor source, except for 

the following: 

• § 60.4230(b)—Not applicable to 

stationary spark ignition internal 

combustion engines being tested at an 

engine test cell/stand; 

• § 60.4230(c)—Exemption for 

obtaining a Title V permit for an owner 

or operator of an area source subject to 

this part; 

• § 60.4231 and § 60.4232—Emission 

standards for manufacturers; 

• § 60.4238 through § 60.4242— 

Compliance Requirements for 

Manufacturers; and 

• § 60.4247—Mobile source 

provisions that apply to manufacturers 

of stationary spark ignition internal 

combustion engines or equipment 

containing such engines. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of 40 CFR part 60, 

subpart Kb (Standards of Performance 

for Volatile Organic Liquid Storage 

Vessels), as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source, except for the following: 

• § 60.112b(c)—Site-specific standard 

for Merck & Co., Inc.’s Stonewall Plant 

in Elkton, Virginia; and 

• § 60.117b(a) and (b)—Delegation of 

authority. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of part 60, subpart 

OOOOa (Standards for New and 

Modified Sources in the Oil and Natural 

Gas Sector), as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source, except for the 

following: 12

• § 60.5365a(h)(4)—Existing sources 

constructed after August 23, 2011; 

• § 60.5370a(c)—Permit exemption; 

• § 60.5413a(a)(5)—Exemptions from 

performance testing—hazardous waste 

incinerator; 

• § 60.5420a(a)(2)(i)—Advance 

notification requirements for well 

completions; and 

• § 60.5420a(a)(2)(ii)—Advance 

notification requirements of well 

completions when subject to state 

regulation that requires advance 

notification. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of 40 CFR part 63, 

subpart HH (NESHAP from Oil and 

Natural Gas Production Facilities), as 

written at the time the owner/operator 

begins construction on the new true 

minor source or on the minor 

modification at an existing true minor 

source, except for the following: 13

• § 63.760(a)(2)—Facilities that 

process, upgrade or store hydrocarbon 

liquids; 

• § 63.760(b)(1)(ii)—Each storage 

vessel with the potential for flash 

emissions; 

• § 63.760(g)—Recordkeeping for 

major sources that overlap with other 

regulations for equipment leaks; 

• § 63.764(c)(2)—Requirements for 

compliance with standards for storage 

vessels; 

• § 63.766—Storage vessel standards; 

and 

• § 63.769—Equipment leak 

standards. 

For purposes of this FIP, owners/

operators of true minor sources (and 

minor modifications at true minor 

sources) must comply with all of the 

applicable provisions of 40 CFR part 60, 

subpart KKKK (Standards of 

Performance for Stationary Combustion 

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14This assessment will typically be conducted 

through the National Environmental Policy Act 

process and result in either a Record of Decision or 

a Finding of No Significant Impact document. 

15This process of source documentation 

submittal and the EPA’s confirmation that it has 

satisfactorily completed the procedures must occur 

prior to the source’s submittal of its Part 1 

Registration Form pursuant to § 49.160(c)(1)(iv). 

16 In that case, the U.S. Court of Appeals for the 

District of Columbia Circuit vacated the Federal 

Indian Country Minor NSR rule and Federal Indian 

Country Nonattainment Major NSR rule with 

respect to non-reservation areas of Indian country 

(i.e., dependent Indian communities and Indian 

allotments located outside of reservations) in the 

absence of a demonstration of tribal jurisdiction by 

the EPA or a tribe. 

17We are also revising § 49.166(c)(1) to comport 

the applicability of the Federal Indian Country 

Nonattainment Major NSR rule with the ODEQ v. 

EPA decision. The court decision has the same 

effect on the scope of the EPA’s jurisdiction under 

the Federal Major New Source Review Program for 

Nonattainment Areas in Indian Country and so we 

are changing the applicability of the Federal Indian 

Country Nonattainment Major NSR rule as well. 

18This date is September 2, 2014, for all true 

minor sources, except oil and natural gas true minor 

sources, and October 3, 2016, for oil and natural gas 

true minor sources. 

Turbines), as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source. 

C. Addressing Threatened and 

Endangered Species and Historic 

Properties 

We are requiring that, prior to 

beginning construction, under § 49.104, 

new true minor sources and minor 

modifications at existing true minor 

sources document that potential impacts 

on threatened and endangered species 

and historic properties (collectively 

referred to as ‘‘protected resources’’) 

have been assessed. The section 

provides two options for documenting 

this assessment: (1) Submittal of 

documentation to the EPA Regional 

Office (and to the relevant tribe for the 

area where the source is located or 

locating) that a site-specific assessment 

conducted by another federal agency 

has been completed for the specific oil 

and natural gas activity, and that the 

owner/operator meets all air qualityrelated requirements as specified within 

all documents/approvals obtained 

through that assessment (these 

requirements are typically implemented 

and enforced as conditions of an 

approved Surface Use Plan of 

Operations and/or Application for 

Permit to Drill); 14 or (2) submittal of 

documentation to the EPA Regional 

Office (and to the relevant tribe for the 

area where the source is located or 

locating) demonstrating that the source 

has completed the screening processes 

specified by the EPA for consideration 

of threatened and endangered species 

and historic properties and received a 

determination from the EPA stating that 

it has satisfactorily completed these 

processes.15 (The processes are 

contained in the following document: 

‘‘Procedures to Address Threatened and 

Endangered Species and Historic 

Properties for the Federal 

Implementation Plan for Managing Air 

Emissions from True Minor Sources in 

Indian Country in the Oil and Natural 

Gas Production and Natural Gas 

Processing Segments of the Oil and 

Natural Gas Sector,’’ https://

www.epa.gov/tribal-air/tribal-minornew-source-review.) 

D. Summary of Final Amendments to 

the Federal Indian Country Minor NSR 

Rule 

This action finalizes several 

amendments to the Federal Indian 

Country Minor NSR rule. 

First, we are revising § 49.151(b)(1) to 

add new text regarding the purpose of 

the Federal Minor NSR Program in 

Indian Country. The revised text 

indicates that the program satisfies the 

requirements of section 110(a)(2)(C) of 

the Clean Air Act (CAA) by establishing: 

(1) A pre-construction permitting 

program for all new and modified minor 

sources (minor sources) and minor 

modifications at major sources located 

in Indian reservations and other areas of 

Indian country over which an Indian 

tribe, or the EPA, has demonstrated that 

the tribe has jurisdiction and where 

there is no EPA-approved program in 

place, and (2) a FIP (§§ 49.101 to 49.105) 

for true minor sources in the oil and 

natural gas production and natural gas 

processing segments of the oil and 

natural gas sector that are located in 

such areas of Indian country. 

Second, we are revising § 49.151(c)(1) 

(and § 49.166(c)(1)) to comport the 

applicability of the Federal Indian 

Country Minor NSR rule with a court 

decision that addressed the scope of the 

EPA’s jurisdiction to implement the 

Federal Indian Country Minor NSR rule: 

Oklahoma Dept. of Environmental 

Quality v. EPA, 740 F.3d 185 (D.C. Cir. 

2014) (hereinafter referred to as ODEQ 

v. EPA).16 We are also noting in the 

definition of Indian country in 

§ 49.152(d) (and § 49.167) that the 

geographic scope of the application of 

the rule is as specified in § 49.151(c)(1) 

(and § 49.166(c)(1)).17

Third, we are revising 

§ 49.151(c)(1)(iii)(A) to clarify 

requirements for oil and natural gas 

activities with respect to the registration 

deadline that conforms with the 

permitting deadline in 

§ 49.151(c)(1)(iii)(B). 

Fourth, we are revising 

§ 49.151(c)(1)(iii)(B) to clarify 

requirements for oil and natural gas 

activities with respect to the permitting 

deadline. We are also revising the 

provision to provide that true minor oil 

and natural gas sources can either 

comply with the FIP in lieu of obtaining 

a minor NSR permit or obtain a minor 

source permit if the source opts out of 

the FIP. 

Fifth, we are revising § 49.151(d)(1), 

(2) and (4) to incorporate compliance 

with the FIP. We are revising 

§ 49.151(d)(1) to indicate that if you 

begin construction of a new source or 

modification that is subject to the 

Federal Indian Country Minor NSR 

Program after the applicable date 18

without either applying for and 

receiving a permit pursuant to the 

program or complying with the FIP for 

the oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector, the owner/

operator of the source will be subject to 

appropriate enforcement action. We are 

revising § 49.151(d)(2) to indicate that if 

you do not construct or operate your 

new source or existing source 

modification in accordance with the 

terms of your minor NSR permit or the 

FIP for the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector, you will be subject to 

appropriate enforcement action. We are 

revising § 49.151(d)(4) to indicate that 

issuance of a permit or compliance with 

the FIP for the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector does not relieve the owner/

operator of a source of the responsibility 

to comply fully with applicable 

provisions of any EPA-approved 

implementation plan or FIP or any other 

requirements under applicable law. 

Sixth, we are amending § 49.152 by 

adding a definition for ‘‘Startup of 

production,’’ which, to ensure 

consistency across the EPA’s regulations 

for the oil and natural gas sector, points 

directly to the term as defined under 40 

CFR part 60, subpart OOOOa. 

Seventh, we are revising 

§§ 49.153(a)(1)(i)(B) and (a)(1)(ii)(B) to 

establish that true minor sources in the 

oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector are required to 

comply with the FIP, unless the owner/ 

operator of a source opts-out or is 

otherwise required by the EPA to obtain 

a minor source permit. Existing 

§ 49.153(a)(1)(i)(B) requires the owner/

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35950 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

19 In the proposed FIP action, we had proposed 

to extend the registration form from the then 

applicable date of March 2, 2016, to October 3, 

2016. We have since finalized amendments to 

extend the permitting compliance and registration 

deadlines (‘‘Review of New Sources and 

Modifications in Indian Country: Extension of 

Permitting and Registration Deadlines for True 

Minor Sources Engaged in Oil and Natural Gas 

Production in Indian Country,’’ U.S. Environmental 

Protection Agency, 81 FR 9109, February 24, 2016, 

https://www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/

2016-03623.pdf). 

20The registration forms are available at: https:// 

www.epa.gov/tribal-air/tribal-minor-new-sourcereview or from the EPA Regional Offices. 

21 ‘‘Review of New Sources and Modifications in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 71 FR 48696, August 21, 2006, https://

www.gpo.gov/fdsys/pkg/FR-2006-08-21/pdf/06- 

6926.pdf. 

22 ‘‘Review of New Sources and Modifications in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 76 FR 38748, July 1, 2011, https://

www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/2011- 

14981.pdf. 

23To obtain eligibility to develop and implement 

an EPA-approved plan, under the Tribal Authority 

Rule a tribe must meet four requirements: (1) Be a 

federally-recognized tribe, (2) have a functioning 

government, (3) have the legal authority and (4) 

have the capacity to run the program. For more 

information go to: ‘‘Indian Tribes: Air Quality 

Planning and Management,’’ U.S. Environmental 

Protection Agency, 63 FR 7254, February 12, 1998, 

http://www.gpo.gov/fdsys/pkg/FR-1998-02-12/pdf/

98-3451.pdf. 

operator of a new source to determine 

whether the source’s potential to emit 

(PTE) is equal to or greater than the 

corresponding minor NSR threshold. If 

it is, then the source is subject to the 

pre-construction requirements of the 

Federal Indian Country Minor NSR rule 

for that pollutant. The amendment adds 

a clause to the end of the paragraph 

stating that for sources in the oil and 

natural gas production and natural gas 

processing segments of the oil and 

natural gas sector, if the PTE for oil and 

natural gas production sources is equal 

to or greater than the corresponding 

minor NSR threshold, such sources 

shall instead comply with the 

requirements of §§ 49.101 to 49.105, 

unless the owner/operator of the source 

opts-out of the FIP pursuant to 

§ 49.101(b)(2), or is otherwise required 

by the EPA to obtain a source-specific 

minor source permit pursuant to 

§ 49.101(b)(3). 

Existing § 49.153(a)(1)(ii)(B) requires 

the owner/operator of modified sources 

to determine whether the increase in 

allowable emissions resulting from the 

modification would be equal to or 

greater than the minor NSR threshold 

for the pollutant being evaluated. If it is, 

then the source is subject to the preconstruction requirements of the 

Federal Indian Country Minor NSR rule 

for that pollutant. The amendment adds 

a clause to the end of the paragraph 

stating that, for sources in the oil and 

natural gas production and natural gas 

processing segments of the oil and 

natural gas sector, if the PTE for such 

sources is equal to or greater than the 

corresponding minor NSR threshold, 

such sources must instead comply with 

the requirements of §§ 49.101 to 49.105, 

unless the owner/operator of the source 

opts-out of the FIP pursuant to 

§ 49.101(b)(2) or is otherwise required 

by the EPA to obtain a minor source 

permit pursuant to § 49.101(b)(3). 

Finally, we are revising 

§§ 49.160(c)(1)(ii) and (iii), adding 

§ 49.160(c)(1)(iv) and revising 

§ 49.160(c)(4). For § 49.160(c)(1)(ii), we 

are revising the provision to clarify 

requirements for oil and natural gas 

activities with respect to the registration 

deadline that conforms with the 

permitting deadline in 

§ 49.151(c)(1)(iii)(B). For 

§ 49.160(c)(1)(iii), we are revising the 

language to indicate that if your true 

minor source is an oil and natural gas 

source, and you commence construction 

or modification of your source on or 

after October 3, 2016,19 you must report 

your source’s actual emissions (if 

available) as part of your permit 

application (source-specific permits), 

unless you are subject to the FIP. (If you 

are subject to the FIP, then you must 

register your oil and natural gas source 

pursuant to § 49.160(c)(1)(iv).) For 

source-specific oil and natural gas 

source permittees, your permit 

application will be used to fulfill the 

registration requirements described in 

§ 49.160(c)(2). 

We are adding § 49.160(c)(1)(iv) to 

indicate that sources subject to the FIP 

must still satisfy the requirement to 

register under the Federal Indian 

Country Minor NSR rule by using the 

two registration forms provided by the 

EPA 20 rather than a permit application. 

The registration form contains the 

information required in § 49.160(c)(2). 

Minor sources complying with the FIP 

for the oil and natural gas production 

and natural gas processing segments of 

the oil and natural gas sector, must 

submit the Part 1 Registration Form that 

contains the information in 

§ 49.160(c)(2) 30 days prior to beginning 

construction. The Part 2 Registration 

Form must be submitted within 60 days 

after the startup of production as 

defined in § 49.152(d). The source must 

determine the potential for emissions 

within 30 days after startup of 

production. The combination of the Part 

1 and Part 2 Registration Form 

submittals satisfies the requirements in 

§ 49.160(c)(2). The forms are submitted 

instead of the application form 

otherwise required in § 49.160(c)(1)(iii). 

After being reviewed by the permitting 

authority, completed registration forms 

will be available online on the 

appropriate EPA Regional Office Web 

site. 

For § 49.160(c)(4), we are adding 

language indicating that submitting a 

registration form does not relieve a 

source of the requirement to comply 

with the FIP for the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector if the source or any physical or 

operational change at the source would 

be subject to any minor or major NSR 

rule. 

III. Background 

A. Federal Indian Country Minor NSR 

Rule 

1. What is the Federal Indian Country 

Minor NSR rule? 

On August 21, 2006, the EPA 

proposed the regulation: ‘‘Review of 

New Sources and Modifications in 

Indian Country’’ (commonly referred to 

as the Federal Indian Country NSR 

rule).21 Within this proposed regulation, 

the EPA proposed to protect air quality 

in Indian country, as defined in 18 

U.S.C. 1151, by establishing a FIP 

program to regulate, among other 

matters, the modification and 

construction of minor stationary sources 

consistent with the requirements of 

section 110(a)(2)(c) of the CAA. We refer 

to this part of the Federal Indian 

Country NSR rule as the Federal Indian 

Country Minor NSR rule. Under the 

Federal Indian Country Minor NSR rule, 

we proposed to fill a regulatory gap and 

provide a mechanism for issuing preconstruction permits for the 

construction of new minor sources and 

certain modifications of major and 

minor sources in Indian country. We 

promulgated final rules on July 1, 

2011,22 and the FIP became effective on 

August 30, 2011. 

The Federal Indian Country Minor 

NSR rule applies to new and modified 

minor stationary sources and to minor 

modifications at existing major 

stationary sources located in Indian 

country where there is no EPAapproved program in place for all new 

and modified minor sources (minor 

sources) and minor modifications at 

major sources located in areas covered 

by the Federal Indian Country Minor 

NSR rule. 

Tribes can elect to develop and 

implement their own EPA-approved 

program under the Tribal Authority 

Rule,23 but they are not required to do 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35951 

24Under tribal law, tribes may also be able to 

establish permit fees under a tribal permitting 

program, as do most states. 

25A 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). 

26 ‘‘Review of New Sources and Modifications in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 76 FR 38770, July 1, 2011, https://

www.gpo.gov/fdsys/pkg/FR-2011-07-01/pdf/2011- 

14981.pdf. 

27 If a tribe develops an EPA-approved 

implementation plan, then under that plan it could 

also issue its own general permits. 

28We may in the future issue general permits on 

a smaller geographic scale for a particular state or 

region of the country. In fact, in the first batch of 

streamlined permits we issued in May 2015, we 

indicated that EPA Region 9 will be developing a 

general permit or permit by rule for areas within 

California for gasoline dispensing facilities. In 

addition, once the EPA issues a general permit at 

the national level, Regional Offices serving as 

Reviewing Authority do grant coverage under 

nationally-issued general permits (as well as any 

general permits issued by that region for a smaller 

geographic area). See ‘‘General Permits and Permits 

by Rule for the Federal Minor New Source Review 

Program in Indian Country for Five Source 

Categories,’’ U.S. Environmental Protection Agency, 

80 FR 25068, May 1, 2015, http://www.gpo.gov/

fdsys/pkg/FR-2015-05-01/pdf/FR-2015-05-01- 

FrontMatter.pdf. 

29 ‘‘Review of New Sources and Modifications in 

Indian Country: Federal Implementation Plan for 

Managing Air Emissions from True Minor Sources 

Engaged in Oil and Natural Gas Production in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 81 FR 56554, September 18, 2015, https:// 

www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015- 

21025.pdf. 

so.24 In the absence of an approved 

tribal program, the EPA implements this 

program. Alternatively, tribes can take 

delegation of the program from the EPA 

to assist the EPA with administration of 

the federal program, including acting as 

the Reviewing Authority for the EPA. 

Beginning September 2, 2014, any 

new stationary sources, other than true 

minor sources in the oil and natural gas 

sector, that will emit, or will have the 

potential to emit, a regulated NSR 

pollutant in amounts that will be: (a) 

Equal to or greater than the minor NSR 

thresholds established in the Federal 

Indian Country Minor NSR rule; and (b) 

less than the amount that would qualify 

the source as a major source or a major 

modification for purposes of the PSD or 

nonattainment major NSR programs, 

must apply for and obtain a minor NSR 

permit before beginning construction of 

the new source. Likewise, any existing 

stationary source (minor or major) must 

apply for and obtain a minor NSR 

permit before beginning construction of 

a physical or operational change that 

will increase the allowable emissions of 

the stationary source by more than the 

specified threshold amounts, if the 

change does not otherwise trigger the 

permitting requirements of the PSD or 

nonattainment major NSR program(s).25

Among other things, the Federal 

Indian Country Minor NSR rule created 

a framework for the EPA to streamline 

the issuance of pre-construction permits 

to true minor sources by using general 

permits. 

2. What is a true minor source and how 

does it differ from a synthetic minor 

source? 

The designation of a source for the 

FIP applicability is dependent on the 

source’s PTE. Per § 52.21(b)(4), PTE 

means the maximum capacity of a 

stationary source to emit a pollutant 

under its physical and operational 

design. Any physical or operational 

limitation on the capacity of the source 

to emit a pollutant, including air 

pollution control equipment and 

restrictions on hours of operation or on 

the type or amount of material 

combusted, stored, or processed, shall 

be treated as part of its design if the 

limitation or the effect it would have on 

emissions is federally enforceable. 

Secondary emissions do not count in 

determining the potential to emit of a 

stationary source. 

‘‘True minor source,’’ under the 

Federal Indian Country Minor NSR rule 

means a source that emits, or has the 

potential to emit, regulated NSR 

pollutants in amounts that are less than 

the major source thresholds under either 

the PSD Program at § 52.21, or the 

Federal Major NSR Program for 

Nonattainment Areas in Indian Country 

at §§ 49.166–49.173, but equal to or 

greater than the minor NSR thresholds 

in § 49.153, without the need to take an 

enforceable restriction to reduce its PTE 

to such levels. A source’s PTE includes 

fugitive emissions, to the extent that 

they are quantifiable, only if the source 

belongs to one of the 28 source 

categories listed in part 51, appendix S, 

paragraph II.A.4(iii) or § 52.21(b)(1)(iii) 

of 40 CFR, as applicable. 

By contrast, ‘‘synthetic minor source’’ 

means a source that otherwise has the 

potential to emit regulated NSR 

pollutants in amounts that are at or 

above those thresholds for major 

sources, but that has voluntarily taken a 

restriction so that its PTE is less than 

such amounts. Such restrictions must be 

enforceable as a legal and practical 

matter. 

3. What is a general permit? 

A general permit, for purposes of this 

action, is a permit document that 

contains standardized requirements that 

multiple stationary sources can use. The 

Federal Indian Country Minor NSR rule 

specifies the process and requirements 

for using general permits to authorize 

construction and modifications at minor 

sources as a streamlined permitting 

approach. The EPA may issue a general 

permit for categories of emissions units 

or stationary sources that are similar in 

nature, have substantially similar 

emissions, and would be subject to the 

same or substantially similar permit 

requirements.26 ‘‘Similar in nature’’ 

refers to size, processes, and operating 

conditions. The purpose of a general 

permit is to protect air quality while 

simplifying the permitting process for 

similar minor sources. General permits 

offer a cost-effective means of issuing 

permits and provide a quicker and 

simpler mechanism for permitting 

minor sources than the source-specific 

permitting process. 

The final Federal Indian Country 

Minor NSR rule contemplated issuance 

of general permits by the EPA Regional 

Offices.27 While to date the general 

permits that we have issued have been 

national in scope, we will issue general 

permits on a different geographic scale 

as appropriate.28

B. What is a FIP? 

In our proposed rule of September 18, 

2015,29 we discussed the concept of a 

FIP, including our authority to issue 

FIPs, at great length. There are no 

currently approved Tribal 

Implementation Plans (TIPs) that 

require the issuance of pre-construction 

permits designed to reduce emissions 

related to oil and natural gas facilities. 

As a result, the Federal Indian Country 

Minor NSR rule serves this purpose. We 

have concluded that the issuance of 

source-specific permits to sources in the 

oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector has the 

potential to overwhelm the system. We 

initially considered issuing a general 

permit or permit by rule for these 

sources, but ultimately concluded that 

the issuance of a FIP would be a more 

effective way of addressing the situation 

for a few reasons. Both a general permit 

and a permit by rule provide a more 

streamlined approach for authorizing 

construction and modification of a 

source compared to site-specific 

permitting. However, a general permit 

still requires a source to submit an 

application and to obtain approval of 

coverage from the Reviewing Authority 

before beginning construction, and 

would, thus, pose a resource burden on 

reviewing authorities associated with 

processing the potentially large volume 

of requests from true minor sources in 

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35952 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

30For a further discussion comparing these three 

options, see: ‘‘Review of New Sources and 

Modifications in Indian Country: Federal 

Implementation Plan for Managing Air Emissions 

from True Minor Sources Engaged in Oil and 

Natural Gas Production in Indian Country,’’ U.S. 

Environmental Protection Agency, 81 FR 56554, 

September 18, 2015, https://www.gpo.gov/fdsys/

pkg/FR-2015-09-18/pdf/2015-21025.pdf. 

31 ‘‘Managing Emissions from Oil and Natural Gas 

Production in Indian Country,’’ U.S. Environmental 

Protection Agency, 79 FR 32502, June 5, 2014, 

http://www.gpo.gov/fdsys/pkg/FR-2014-06-05/pdf/

2014-12951.pdf. 

32 ‘‘General Permits and Permits by Rule for the 

Federal Minor New Source Review Program in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 79 FR 2546, January 14, 2014, http://

www.gpo.gov/fdsys/pkg/FR-2014-01-14/pdf/2013- 

30345.pdf. 

33For more information, see: ‘‘Review of New 

Sources and Modifications in Indian Country 

Amendments to the Registration and Permitting 

Deadlines for True Minor Sources,’’ U.S. 

Environmental Protection Agency, 79 FR 34231, 

June 16, 2014, http://www.gpo.gov/fdsys/pkg/FR2014-06-16/pdf/2014-14030.pdf. 

34 ‘‘Review of New Sources and Modifications in 

Indian Country: Federal Implementation Plan for 

Managing Air Emissions from True Minor Sources 

Engaged in Oil and Natural Gas Production in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 81 FR 56554, September 18, 2015, https:// 

www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015- 

21025.pdf. 

35As noted above, we have already finalized 

amendments to extend the permitting compliance 

and registration deadlines (‘‘Review of New Sources 

and Modifications in Indian Country: Extension of 

Permitting and Registration Deadlines for True 

Minor Sources Engaged in Oil and Natural Gas 

Production in Indian Country,’’ U.S. Environmental 

Protection Agency, 81 FR 9109, February 24, 2016, 

https://www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/

2016-03623.pdf). 

36The preamble in the February 24, 2016 Federal 

Register notice mistakenly indicates that the 

extension also applies to minor modifications at 

major oil and natural gas sources; this was an error. 

The rule language itself correctly indicates that the 

extension applies to only new and modified true 

minor oil and natural gas sources. 

37For more information, see: ‘‘Managing 

Emissions from Oil and Natural Gas Production in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 79 FR 32502, June 5, 2014, http://

www.gpo.gov/fdsys/pkg/FR-2014-06-05/pdf/2014- 

12951.pdf. 

the oil and natural sector for coverage. 

So, from those standpoints a FIP is 

preferable to a general permit. In 

comparing a permit by rule to a FIP, the 

EPA prefers the FIP because it provides 

more certainty for affected sources than 

the permit by rule approach and, as 

discussed below, does not have any 

significant disadvantages as compared 

to the permit by rule approach.30

We believe a FIP is the most 

appropriate way of implementing the 

Federal Indian Country Minor NSR rule 

in that it protects air quality while at the 

same time reducing the impact on the 

Reviewing Authority arising from the 

issuance of source-specific permits for 

these sources. (The FIP also reduces the 

burden on industry and other interested 

stakeholders.) Therefore, in this final 

action, we have determined that it is 

necessary or appropriate to exercise our 

discretionary authority under sections 

301(a) and 301(d)(4) of the CAA and 

§ 49.11(a) to protect air quality by 

promulgating a FIP applicable to true 

minor sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector in areas covered by the Federal 

Indian Country Minor NSR rule where 

there is no EPA-approved program in 

place that contains legally and 

practicably enforceable requirements to 

control and reduce air emissions from 

such sources. 

C. Oil and Natural Gas Sector 

In our proposed rule of September 18, 

2015, we provided background on the 

oil and natural gas sector. For a more 

complete description of the sector, the 

reader should consult the Advance 

Notice of Proposed Rulemaking (ANPR) 

we issued in June 2014.31

The oil and natural gas sector 

includes operations involved in the 

extraction and production of oil and 

natural gas, as well as the processing, 

transmission and distribution of natural 

gas. Specifically for oil, the sector 

includes all operations from the well to 

the point of custody transfer to an oil 

transmission pipeline or other means of 

transportation to a petroleum refinery. 

For natural gas, the sector includes all 

operations from the well to the final end 

user. The oil and natural gas sector can 

generally be separated into four 

segments: (1) Oil and natural gas 

production; (2) natural gas processing; 

(3) natural gas transmission and storage; 

and (4) natural gas distribution. 

D. EPA Actions Affecting Oil and 

Natural Gas Minor Sources in Areas 

Covered by the Federal Indian Country 

Minor NSR Rule 

1. Extension of Permitting Compliance 

and Registration Deadlines 

On January 14, 2014, the EPA 

published a proposed rule, ‘‘General 

Permits and Permits by Rule for the 

Federal Minor New Source Review 

Program in Indian Country,’’ 32 that 

included two proposed amendments 

that affected true minor sources in the 

oil and natural gas sector. The proposed 

amendments were: (1) The extension of 

the deadline by which new true minor 

sources and minor modifications of 

existing true minor sources in the oil 

and natural gas sector must receive 

minor NSR permits prior to 

commencing construction, from 

September 2, 2014, to March 2, 2016; 

and (2) an adjustment to the deadline by 

which existing true minor sources in the 

oil and natural gas sector must register, 

from September 2, 2014, to March 2, 

2016. On June 16, 2014, the EPA 

finalized those amendments as 

proposed.33 On September 18, 2015, the 

EPA proposed to extend these dates 

further to October 3, 2016.34

On February 24, 2016,35 we finalized 

three amendments to the Federal Indian 

Country Minor NSR rule that we had 

proposed at the same time as the FIP 

and the other amendments we are 

finalizing in this action. The 

amendments are: 

First, we revised the deadline under 

§ 49.151(c)(1)(iii)(B) by which new and 

modified true minor sources in the oil 

and natural gas production and natural 

gas processing segments of the oil and 

natural gas sector that are located in (or 

planning to locate in) reservation areas 

of Indian country or other areas of 

Indian country for which tribal 

jurisdiction has been demonstrated, 

must obtain a minor NSR permit prior 

to beginning construction. We extended 

the deadline from March 2, 2016, to 

October 3, 2016, for all true minor 

sources (both new and modified true 

minor sources) 36 within the oil and 

natural gas sector located in Indian 

country. 

Second, we revised 

§ 49.151(c)(1)(iii)(A) to conform the 

registration deadline to the extended 

permitting deadline in 

§ 49.151(c)(1)(iii)(B). 

Finally, we revised § 49.160(c)(1)(ii) 

to conform the registration deadline to 

the extended permitting deadline in 

§ 49.151(c)(1)(iii)(B). 

2. Advance Notice of Proposed 

Rulemaking 

On June 5, 2014, the EPA published 

an advance notice of proposed 

rulemaking (ANPR).37 The purpose of 

the ANPR was to solicit broad feedback 

on the most effective and efficient 

means of implementing the Federal 

Minor NSR Program in Indian Country 

for sources in the production segment of 

the oil and natural gas sector. In it, we 

discussed alternatives to source-specific 

permits for new and modified minor 

sources engaged in oil and natural gas 

production activities. The EPA 

requested comments on the alternative 

approaches and other aspects of 

managing air emissions from oil and 

natural gas sources in areas covered by 

the Federal Indian Country Minor NSR 

rule. 

mstockstill on DSK3G9T082PROD with RULES3

Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35953 

38 ‘‘Review of New Sources and Modifications in 

Indian Country: Federal Implementation Plan for 

Managing Air Emissions from True Minor Sources 

Engaged in Oil and Natural Gas Production in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 81 FR 56554, September 18, 2015, https:// 

www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015- 

21025.pdf. 

39 ‘‘Oil and Natural Gas Sector: Emission 

Standards for New and Modified Sources,’’ U.S. 

Environmental Protection Agency, 80 FR 56593, 

September 18, 2015, https://www.gpo.gov/fdsys/

pkg/FR-2015-09-18/pdf/2015-21023.pdf. 

40 ‘‘Source Determination for Certain Emission 

Units in the Oil and Natural Gas Sector,’’ U.S. 

Environmental Protection Agency, 80 FR 56579, 

September 18, 2015, https://www.gpo.gov/fdsys/

pkg/FR-2015-09-18/pdf/2015-21026.pdf. 

41We also make it clear in the Part 2 Registration 

Form that sources must determine their potential 

emissions within 30 days after startup of 

production. 

3. Proposed FIP and Associated 

Amendments 

On September 18, 2015, the EPA 

proposed a FIP 38 that would apply to 

new true minor sources and minor 

modifications at existing true minor 

sources in the production segment of 

the oil and natural gas sector that are 

locating or expanding areas covered by 

the Federal Indian Country Minor NSR 

rule. We said that the FIP would satisfy 

the minor source permitting 

requirement under the Federal Indian 

Country Minor NSR rule. The proposed 

FIP proposed to require compliance 

with emission limitations and other 

requirements from six federal emission 

standards as written at the time of 

construction or modification for 

compression ignition and spark ignition 

engines, compressors (reciprocating and 

centrifugal), fuel storage tanks, fugitive 

emissions from well sites and 

compressor stations, glycol dehydrators, 

hydraulically fractured oil and natural 

gas well completions, pneumatic 

controllers in production, pneumatic 

pumps, process heaters and storage 

vessels. 

The EPA also proposed several 

amendments to the Federal Indian 

Country Minor NSR rule, including 

adding new text regarding the purpose 

of the program, revising the program 

overview provision, establishing a 

compliance deadline of October 3, 2016 

for all true minor sources (both new and 

modified true minor sources) within the 

oil and natural gas sector, revising 

certain provisions to incorporate 

compliance with the FIP, revising the 

applicability provision to establish that 

sources are required to comply with the 

FIP unless they opt to obtain a sourcespecific permit or are otherwise 

required to obtain a source-specific 

permit, and revising the source 

registration provision. Also, we 

proposed to revise the definition of 

Indian country for purposes of the rule 

to comport with a court decision that 

addressed the scope of the EPA’s 

jurisdiction to implement the Federal 

Indian Country Minor NSR rule: ODEQ 

v. EPA. This court decision also affects 

the scope of the EPA’s jurisdiction 

under the Federal Nonattainment Major 

NSR Program in Indian Country so we 

proposed changing the definition under 

the Federal Indian Country 

Nonattainment Major NSR rule as well. 

4. Other Oil and Natural Gas Actions 

On September 18, 2015, the EPA 

proposed updates to the NSPS for the 

oil and natural gas sector.39 The 

proposed FIP would adopt the standards 

from six federal rules, including the oil 

and natural gas NSPS. Changes to these 

rules would affect requirements in the 

FIP because the proposed FIP would 

adopt all or parts of these six federal 

emission standards, including future 

amendments. In addition, on September 

18, 2015, the EPA proposed an oil and 

natural gas source determination rule.40

This action is also connected to this FIP 

as it would affect how oil and natural 

gas sources are defined for the purpose 

of major/minor source determinations. 

IV. Summary of Final Action, 

Comments and Responses 

A. Overview of Changes to the FIP and 

Federal Indian Country Minor NSR Rule 

The purpose of this section is to 

provide an overview of key aspects of 

our September 2015 proposed rule, our 

final action, and relevant comments and 

our responses. The EPA received 

numerous thoughtful and helpful 

comments on the proposal. After careful 

consideration of this input, we are 

finalizing the FIP with some changes. 

Overall, here are what we consider to be 

the most significant changes we are 

making in this final rule. These changes 

are discussed in greater detail below 

(except as noted): 

(1) Amending the Federal Indian 

Country Minor NSR rule in several 

ways, including: 

a. Amending §§ 49.152 and 49.160 of 

the Federal Indian Country Minor NSR 

rule to provide for a two-part source 

registration process, including adding a 

definition to § 49.152(d) for ‘‘Startup of 

production’’ that was not proposed but 

which is necessary to accommodate the 

modified registration process; 

b. Amending §§ 49.151 and 49.160 of 

the Federal Indian Country Minor NSR 

rule to clarify how these provisions 

relate to the FIP, including adjusting 

references to the oil and natural gas 

sector so that the provisions being 

amended function properly with respect 

to that sector and the final FIP and to 

reflect the expanded source scope of the 

final FIP; 

c. Amending §§ 49.151 and 49.152 

(and §§ 49.166 and 49.167) to update the 

applicability of the Federal Indian 

Country Minor NSR rule (and Federal 

Indian Country Nonattainment Major 

NSR rule) to comport with a court 

decision that addressed the scope of the 

EPA’s jurisdiction to implement the 

Federal Indian Country Minor NSR rule: 

ODEQ v. EPA; and 

d. Amending § 49.160 to clarify that, 

after October 3, 2016, sources engaged 

in oil and natural gas activity not 

subject to the FIP will use their sourcespecific permit applications for 

registration (instead of a registration 

form); 

(2) Modifying the draft source 

registration form that we provided for 

comment at proposal to: 

a. Provide for a two-part source 

registration process, including making 

clear that the Part 1 Registration Form 

is due 30 days prior to beginning 

construction and that the Part 2 

Registration Form is due within 60 days 

after the startup of production (as 

defined in § 49.152(d)); 41

b. Clarify what emissions-related 

information is required for submittal as 

part of the Part 2 Form registration 

process; 

c. Clarify that fuel usage and 

production rates should be provided on 

an annual basis; 

d. Removed the request for emissions 

and other information for hazardous air 

pollutants, which are not regulated by 

the Federal Indian Country Minor NSR 

rule; 

e. Provide a Confidential Business 

Information disclaimer; 

f. Clarify how sources should provide 

documentation that they are meeting the 

threatened and endangered species and 

historic properties criteria under 

§ 49.104 along with the registration 

form; and 

g. Condense and reorganize the 

request for emissions information to 

make it clearer to the source; 

(3) Providing guidance that we intend 

to potentially apply this national FIP’s 

requirements as appropriate to 

nonattainment areas where the EPA has 

established a separate, area-specific FIP; 

(4) Changing the FIP as proposed in 

several areas: 

a. Modifying § 49.101 to change ‘‘oil 

and natural gas production facility’’ to 

‘‘oil and natural gas source’’ and also 

clearly linking the modified wording to 

the reworded definition of oil and 

natural gas source in § 49.102; 

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35954 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

42 ‘‘Review of New Sources and Modifications in 

Indian Country: Extension of Permitting and 

Registration Deadlines for True Minor Sources 

Engaged in Oil and Natural Gas Production in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 81 FR 9109, February 24, 2016, https://

www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/2016- 

03623.pdf. 

b. Replacing the definition of oil and 

natural gas production facility in 

§ 49.102 with oil and natural gas source, 

which also includes natural gas 

processing, but excludes natural gas 

transmission and distribution; 

c. Expanding the scope of the FIP by 

revising §§ 49.101 and 49.102 to cover 

non-major gas processing plants and the 

definition of oil and natural gas source; 

d. Adding a subparagraph to § 49.101 

to make it clear that the FIP does not 

apply to minor modifications at major 

sources; 

e. Rewording § 49.104 to specify the 

information that is acceptable to 

document that a source has addressed 

threatened and endangered species and 

historic properties; 

f. Expanding § 49.104 to add the 

process the Reviewing Authority will 

use to determine whether the screening 

procedures provided to the EPA have 

been satisfactorily completed to address 

threatened and endangered species and 

historic properties; 

g. Expanding § 49.105 to add two 

federal standards to the FIP’s 

requirements: 

i. 40 CFR part 63, subpart ZZZZ— 

NESHAP for Stationary Reciprocating 

Internal Combustion Engines; and 

ii. 40 CFR part 60, subpart KKKK— 

Standards of Performance for New 

Stationary Combustion Turbines; 

h. Adjusting exclusions from this FIP 

for the following two standards under 

§ 49.105 to reflect the expansion of the 

scope of the FIP to natural gas 

processing plants (not discussed 

below—instead, see Section II.B.): 

i. 40 CFR part 60, subpart IIII— 

Standards of Performance for Stationary 

Compression Ignition Internal 

Combustion Engines; 

ii. 40 CFR part 60, subpart OOOOa— 

Standards of Performance for Crude Oil 

and Natural Gas Facilities for which 

Construction, Modification, or 

Reconstruction Commenced after 

September 18, 2015; and 

iii. 40 CFR part 63, subpart HH— 

NESHAP from Oil and Natural Gas 

Production Facilities; and 

i. Clarifying under § 49.105 that the 

FIP applies not just to true minor 

sources but to minor modifications at 

true minor sources as well. 

B. Proposed Amendments to the Federal 

Indian Country Minor NSR Rule 

1. Proposed Rule 

The EPA proposed amendments to the 

Federal Indian Country Minor NSR rule, 

including adding new text regarding the 

purpose of the program, revising the 

program overview provision, 

establishing a compliance deadline of 

October 3, 2016 for all true minor 

sources (both new and modified true 

minor sources) within the oil and 

natural gas sector, revising certain 

provisions to incorporate compliance 

with the FIP, revising the applicability 

provision to establish that sources are 

required to comply with the FIP unless 

they opt to obtain a source-specific 

permit or are otherwise required to 

obtain a source-specific permit, and 

revising the source registration 

provision. Also, we proposed to revise 

the definition of Indian country for 

purposes of the rule to comport with a 

court decision that addressed the scope 

of the EPA’s jurisdiction to implement 

the Federal Indian Country Minor NSR 

rule: ODEQ v. EPA. This court decision 

also affects the scope of the EPA’s 

jurisdiction under the Federal Major 

NSR Program in Indian Country, so we 

proposed to change the definition under 

the Federal Indian Country 

Nonattainment Major NSR rule as well. 

2. Final Action 

As mentioned in Section III.D., we 

have already finalized three 

amendments to extend the permitting 

compliance and registration deadlines 

for true minor sources in the oil and 

natural gas sector.42 In today’s action, 

we are finalizing the remainder of the 

amendments as described in Section 

II.D., as proposed, with five exceptions: 

First, we are amending §§ 49.151, 

49.153 and 49.160 of the Federal Indian 

Country Minor NSR rule to clarify how 

these provisions relate to the FIP, 

including adjusting references to the oil 

and natural gas sector so that the 

provisions being amended function 

properly with respect to that sector and 

the final FIP and to reflect the expanded 

source scope of the final FIP. 

Second, we are revising 

§ 49.160(c)(1)(iii) and (iv) as proposed 

by adding further revisions to provide 

for a modified, two-part registration 

process under the Federal Indian 

Country Minor NSR rule for sources 

covered by this FIP. We are also 

modifying the oil and natural gas 

registration form as made available at 

proposal by splitting the form into two 

forms to provide for the two-part source 

registration process, requiring emissions 

information from sources after 

production is started. The changes are 

described above in Section IV.A. 

Third, associated with that change, 

we are adding a definition to § 49.152(d) 

for ‘‘Startup of production’’ that was not 

proposed but which is necessary to 

accommodate the modified registration 

process. 

Fourth, we are amending 

§ 49.160(c)(1)(iii) to clarify that, after 

October 3, 2016, sources engaged in oil 

and natural gas activity not subject to 

the FIP will use their source-specific 

permit applications for registration 

(instead of a registration form). 

Finally, we are amending 

§§ 49.151(c)(1) and 49.152(d) (and 

§§ 49.166(c)(1) and 49.167) to update 

the applicability of the Federal Indian 

Country Minor NSR rule and Federal 

Indian Country Nonattainment Major 

NSR rule, respectively, to comport with 

a court decision that addressed the 

scope of the EPA’s jurisdiction to 

implement the Federal Indian Country 

Minor NSR rule: ODEQ v. EPA. 

3. Comments and Responses 

The following discussion contains 

comments on the proposed amendments 

to the Federal Indian Minor NSR rule 

and our responses. The comments and 

responses are also addressed in Section 

1.0 of the Response to Comment (RTC) 

Document. 

(a) Pre-Construction Permit 

Requirements 

Comment #1: Five commenters 

expressed concern about the proposed 

pre-construction requirements and the 

difficulty in determining PTE before a 

well starts production due to the 

unpredictable nature of well 

development and productivity. Two 

commenters stated the requirement is 

burdensome and would lead to 

inaccurate data due to the unpredictable 

nature of oil and natural gas production. 

Several commenters thought that preconstruction estimated emissions would 

be of limited value to the EPA and 

would create confusion for the public 

once released or used in modeling the 

effects of oil and natural gas production. 

One commenter noted that the preconstruction requirements limit the 

usefulness of the proposed FIP because 

owners/operators will not have 

definitive source-specific information 

before production begins. 

One commenter requested that if the 

EPA were to retain the pre-construction 

requirements, then the EPA should 

provide a mechanism for revising 

emissions estimates after actual 

emissions are known. 

Several commenters pointed to rules 

or state permitting programs that require 

post-construction information to be 

submitted, rather than pre-construction. 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35955 

43 ‘‘Source Determination for Certain Emission 

Units in the Oil and Natural Gas Sector,’’ signed 

May 12, 2016, http://www.epa.gov/airquality/

oilandgas/actions/html. 

For example, the Federal Indian 

Country Minor NSR rule requires 

operators to submit registration forms 

within 90 days of initial production. 

Several commenters pointed to state 

requirements, which acknowledge the 

unique challenges of permitting well 

production sites. Wyoming allows 

operation prior to permitting as long as 

the operator satisfies certain emission 

control requirements. In Colorado, 

emissions information is not required to 

be submitted until after drilling, 

workovers, completions, and testing are 

completed. North Dakota also has 

owners/operators submit the oil and 

natural gas well registration form within 

90 days of completion of a well. 

Commenters believe that providing 

information after the well begins 

production will conserve EPA resources 

and provide the EPA with more accurate 

information, as well as align permitting 

processes on Indian lands with state 

permitting processes on adjacent lands. 

As an alternative to pre-construction 

information, two commenters suggested 

that the EPA allow owners/operators to 

provide actual emissions data based on 

the first 30 days of production, due to 

the EPA 90 days after startup, similar to 

40 CFR part 60, subpart OOOO. 

As another alternative to providing 

pre-construction information, one 

commenter suggested a two-part 

approach: 

Part 1: 30 days prior to the anticipated 

first date of production, submit owner/ 

operator information, well location 

description, production equipment 

anticipated to be installed, and the 

anticipated first date of production. 

Part 2: Within 60 days after first date 

of production, supply information on 

emissions and production rates as part 

of a notification process. The 

commenter requested 60 days as that 

date is used as part of the mineral rights 

royalty notification processes under the 

Department of Interior. 

The same commenter submitted 

revisions to the draft registration form 

that we made available with the 

September 2015 proposed rule. The 

commenter asked the EPA to remove 

actual emissions data and to require 

operators to submit projected allowable 

emissions from the equipment, based on 

the initial production. The commenter 

stated that if the EPA needs to quantify 

actual emissions, the information will 

only be accurate through an emission 

inventory, versus using data submitted 

with the permit application, due to the 

actual emissions decreasing over time. 

Response #1: The EPA has revised the 

Federal Indian Country Minor NSR rule 

and the registration form to incorporate 

a two-step registration process for oil 

and natural gas true minor sources 

locating or expanding in Indian country, 

as suggested by commenters. Generally, 

we prefer to receive registration forms 

complete with source and emissions 

information prior to construction, as we 

proposed and as required in § 49.160 of 

the Federal Indian Country Minor NSR 

rule for other source categories. 

However, we recognize the unique 

nature of the oil and natural gas 

industry and believe in this instance a 

two-part registration process is 

warranted. 

The Part 1 Registration Form will be 

due 30 days before the source begins 

construction. The Part 2 Registration 

Form will be due within 60 days after 

the ‘‘startup of production,’’ in 

accordance with the subpart OOOOa 

definition of startup of production. (For 

the Part 2 Registration Form, we are 

adding the definition for ‘‘Startup of 

production’’ to § 49.152(d), which 

points directly to the term as defined 

under 40 CFR part 60, subpart OOOOa.) 

Sources must determine the potential 

for emissions within 30 days after 

startup of production, information 

which is required as part of the Part 2 

Registration Form. The EPA has selected 

60 days as the submittal date for the Part 

2 Registration Form—the date requested 

by the commenter—as that timeframe 

will allow sufficent time for sources to 

assemble the emissions information 

required as part of the the Part 2 

Registration Form and to submit it to the 

EPA. 

The control requirements from the 

eight NSPS and NESHAP standards in 

this FIP will apply during production 

(the six standards included in the 

original proposal and two standards 

being added in the final rule). The 

owner/operator must account for 

emissions from startup of production as 

required in the Part 2 Registration Form 

submission. We disagree with the 

commenter about the type of emissions 

information that must be submitted with 

the registration form. Pursuant to 

§ 49.160 of the Federal Indian Country 

Minor NSR rule, sources are required to 

submit allowable and actual emissions, 

not just allowable, as requested by the 

commenter. The owner/operator should 

calculate an estimate of the actual 

annual emissions using estimated 

operating hours, production rates, inplace control equipment, and types of 

materials processed, stored, or 

combusted during the upcoming 

consecutive 12 months. 

The source, as documented by an 

owners/operators should use the 

definition in EPA’s rulemaking on 

‘‘Source Determination for Certain 

Emission Units in the Oil and Natural 

Gas Sector’’ 43 in defining each source 

on its registration form. 

(b) The Definition of Indian Country in 

§ 49.152 

Comment #2: Several commenters 

expressed concern about the EPA’s 

proposed definition change for the term 

Indian country as used in the rule. Two 

commenters disagreed with the fourth 

paragraph added to the definition of 

Indian country and noted that the EPA 

should not be vested with power to 

make determinations or demonstrations 

about tribal jurisdiction and that any 

such demonstration of jurisdiction 

should be left to the sovereign whose 

jurisdiction is being asserted. The 

commenters assert that although the 

EPA has indicated that this should only 

impact trust lands in Oklahoma, tribal 

allotments would also be impacted by 

the change in definition. One 

commenter recommended that the 

definition of Indian country include 

Indian reservation lands for which a TIP 

approved by the EPA pursuant to 40 

CFR part 51 is not in effect, and over 

which an Indian tribe has demonstrated 

that it has jurisdiction. 

One commenter stated that the EPA 

should be cautious of how the rule 

appears. By restating the definition of 

Indian country in the rule, it appears 

that the EPA is defining the term. Of 

course, the EPA cannot change the 

definition of Indian country through the 

proposed rule. The term Indian country 

was defined by Congress in statute. The 

EPA’s regulations cannot change or 

modify this definition. The commenter 

suggested that the EPA should make it 

clear that Indian country is already 

statutorily defined and simply cross 

reference the relevant statute. 

The commenter further states that the 

proposed and final rules should not 

state that the EPA is ‘‘revising the 

definition of Indian Country.’’ The 

commenter states that the EPA is doing 

no such thing. As a result of ODEQ v. 

EPA, the EPA is required to consider 

how it will apply the proposed rule in 

certain portions of Indian country, but 

the EPA is not revising the definition of 

Indian country. In other words, ODEQ v. 

EPA is not about the definition of Indian 

country, but rather the process the EPA 

is using to apply the proposed rule to 

certain parts of Indian country. The 

commenter recommends that the EPA 

remove all references to revised 

definitions of Indian country from the 

proposed rule. Rather than purporting to 

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35956 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

44Oklahoma Dept. of Environmental Quality v. 

EPA, 740 F.3d 185 (D.C. Cir. 2014). 

45For more information go to: ‘‘Indian Tribes: Air 

Quality Planning and Management,’’ U.S. 

Environmental Protection Agency, 63 FR 7254, 

February 12, 1998, http://www.gpo.gov/fdsys/pkg/

FR-1998-02-12/pdf/98-3451.pdf. 

revise the definition of Indian country, 

the commenter suggests that the EPA 

include a new section discussing the 

applicability of the proposed rule. 

Response #2: Regarding the 

commenters who expressed concern 

about the EPA’s proposed changes to the 

sections of the rule that define Indian 

country, the EPA acknowledges the 

potential for confusion given that Indian 

country is a statutorily defined term at 

18 U.S.C. 1151. We note that the EPA 

did not intend to, nor could we, change 

or in any way affect the statutory 

definition at 18 U.S.C. 1151 or the 

manner in which that statute is 

interpreted and applied for other 

purposes. Rather, we intended simply to 

address a 2014 decision of the D.C. 

Circuit (ODEQ v. EPA) that addressed 

the scope within Indian country of the 

EPA’s authority to administer the 

Federal Indian Country Minor NSR 

rule—and, thus, the FIP in this action— 

and the Federal Indian Country 

Nonattainment Major NSR rule.44 In that 

decision, the court invalidated the rules 

as applied to non-reservation areas of 

Indian country, unless the EPA or a 

tribe demonstrates that a tribe has 

jurisdiciton over such a non-reservation 

area. The court did not disturb 

application of the rules to Indian 

reservations. Our intent was, thus, not 

to alter the applicable definition of 

Indian country, but instead to address 

the scope of applicability of the rules 

within Indian country in light of the 

D.C. Circuit decision. To avoid potential 

confusion, we have altered the manner 

in which we are addressing this court 

ruling. 

In the final rule, we have left the 

Indian country definitions largely intact 

and simply provided cross-references 

within the definitional sections of both 

rules—§§ 49.152 and 49.167—stating 

that the geographic scope of the rules’ 

applicability will be as specified in the 

program overview sections of both 

rules—§§ 49.151 and 49.166. We have 

then addressed the limitation imposed 

by the court ruling (i.e., that the rules 

will only apply in non-reservation areas 

of Indian country where there is a 

demonstration by a tribe or the EPA 

acting on behalf of a tribe of tribal 

jurisdiction over such area) in the 

program overview sections, which are 

more appropriate provisions in which to 

address this issue. These changes do not 

alter the substance of the revisions the 

EPA had proposed to address the ODEQ 

v. EPA ruling. Instead, they simply 

move the needed revisions to more 

appropriate locations in the rules, and, 

thus, avoid confusion about the 

applicable definition of Indian country 

as a general matter. Further, the EPA 

notes that the regulatory revisions 

finalized today to address the ODEQ v. 

EPA decision apply solely to the Federal 

Indian Country Minor NSR rule—and, 

thus, the FIP in today’s action—and the 

Federal Indian Country Nonattainment 

Major NSR rule. They are not intended 

to apply to any other matter outside the 

scope of these rules. 

In addition, while the EPA 

acknowledges the commenter’s 

statement that an Indian tribe’s 

jurisdiction should not need to be 

demonstrated to exist, the EPA notes 

that, consistent with the ODEQ v. EPA 

decision, a demonstration of tribal 

jurisdiction (either by the EPA or by an 

Indian tribe) would need to be made to 

support application of the Federal 

Indian Country Minor NSR rule in nonreservation areas of Indian country. 

The EPA notes that the distinction 

between reservations and other areas 

that may be under an Indian tribe’s 

jurisdiction (i.e., non-reservation areas 

of Indian country) is derived from a 

CAA tribal-related provision (CAA 

section 301(d)(2)(B)). This provision 

includes a delegation of authority from 

Congress to eligible Indian tribes over 

their reservations, but expressly 

distinguishes other areas within a tribe’s 

jurisdiction. For this reason, tribes 

seeking to administer their own CAAregulatory programs would need to 

demonstrate their jurisdiction over any 

non-reservation area included in their 

application.45 By virtue of the ODEQ v. 

EPA decision, such a demonstration of 

tribal jurisdiction must also be made (by 

a tribe or by the EPA) to support 

application of the Federal Indian 

Country Minor NSR rule in such nonreservation areas of Indian country. 

Comment #3: Further, concerning the 

definition of Indian country, one 

commenter disagreed with the EPA’s 

distinction between ‘‘on-reservation’’ 

and ‘‘off-reservation’’ Indian country 

and contended that tribes exercise 

jurisdiction over these lands through 

existing tribal sovereignty and in 

accordance with numerous federal 

programs that affirm tribal authorities 

and tribal self-determination over these 

lands and areas. The commenter 

contends that the distinction was not 

intended in the CAA and is not 

consistent with how tribes exercise 

authority over their lands. Nonetheless, 

the commenter generally supports the 

fourth paragraph added to the definition 

of Indian country, stating that the rule 

would apply to ‘‘all Indian reservation 

lands where no EPA-approved program 

is in place and all other areas of Indian 

country where no EPA-approved 

program is in place and over which an 

Indian tribe, or the EPA, has 

demonstrated that a tribe has 

jurisdiction.’’ However, the commenter 

does not believe that a tribe’s 

jurisdiction has to be ‘‘demonstrated’’ to 

exist. 

Response #3: Regarding the comment 

on the EPA’s distinction between ‘‘onreservation’’ and ‘‘off-reservation’’ 

Indian country, the EPA disagrees with 

the suggested changes. The EPA’s 

revisions reflect the holding in ODEQ v. 

EPA. The decision acknowledges that 

either a tribe or the EPA can make such 

a demonstration of tribal jurisdiction 

over a non-reservation area of Indian 

country. Although the EPA is not 

typically called upon to assess tribal 

jurisdiction in the context of 

implementing a federal rule, it is 

appropriate for the EPA to make such 

determinations where required. The 

EPA has experience reviewing tribal 

jurisdiction in other contexts, most 

notably where tribes apply to administer 

regulatory programs under the EPA’s 

statutes. In light of the ODEQ v. EPA 

decision, such jurisdictional 

assessments are also relevant for 

implementing federal permitting under 

the Federal Indian Country Minor NSR 

rule in non-reservation areas of Indian 

country. 

Comment #4: One commenter 

acknowledged the EPA’s intent in the 

proposed rulemaking to protect the 

reservation airsheds, while allowing for 

streamlined permitting of minor oil and 

natural gas sources, and requested that 

the EPA achieve this goal by developing 

and implementing the rule in a manner 

that promotes tribal sovereignty, 

authority, self-determination and a 

tribe’s ability to develop resources. The 

commenter emphasized that the EPA 

should develop the proposed rule in a 

manner that recognizes that Indian 

lands are not public lands. 

Another commenter noted that the 

EPA appears in the proposed rule to 

understand the concern for the oil and 

natural gas industry to be on tribal lands 

without tribal authorities having the 

ability to properly regulate the industry 

on their own. The commenter 

encouraged the EPA to recognize this 

potential situation while maintaining 

the tribe’s choice on who to do business 

with, as well as retaining the tribe’s 

relative autonomy to create their own 

pollution plans. The commenter 

acknowledged that the EPA’s intentions 

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46 In the proposed September 2015 FIP, we 

referred to ‘‘other FIPs’’ rather than just the FBIR 

FIP. Upon further review, we realize that the FBIR 

FIP is the only case of a FIP that illustrates an 

exception to the general concept. 

47 ‘‘Approval and Promulgation of Federal 

Implementation Plan for Oil and Natural Gas Well 

Production Facilities; Fort Berthold Indian 

Reservation (Mandan, Hidatsa, and Arikara Nation), 

North Dakota,’’ U.S. Environmental Protection 

Agency, 78 FR 17836, March 22, 2013, https://

www.gpo.gov/fdsys/pkg/FR-2013-03-22/pdf/2013- 

05666.pdf. 

in the proposed rule would likely 

provide better protections than any TIP. 

Response #4: The EPA acknowledges 

that Indian country lands are not public 

lands and has solicited tribal feedback 

on the development of a streamlined 

permitting process that allows for tribes 

to develop resources on their lands. In 

doing so, the EPA seeks to protect air 

quality in Indian country, while also 

recognizing the importance of oil and 

natural gas activity as an important 

source of revenue for tribes, and has 

developed the FIP accordingly. 

Moreover, the development of this FIP 

does not preclude tribes from requesting 

to assist the EPA with administration of 

the FIP through a delegation agreement 

or from developing TIPs, which could 

include different or additional pollution 

control plans that tribes feel are needed 

to preserve air quality given the unique 

characteristics of their lands. No 

changes will be made in response to this 

comment. 

C. Implementation-Related Issues 

1. Proposed Rule 

In the proposed rule, we discussed 

the effect of the proposed FIP on other 

Indian Country FIPs. 

The FIP proposed in September 2015 

was intended to fulfill the requirements 

of the Federal Indian Country Minor 

NSR rule to address the air quality 

impacts of new and modified true minor 

sources and to impose appropriate air 

pollution control requirements that 

protect the NAAQS, while providing an 

alternative to obtaining source-specific 

pre-construction approval through the 

NSR pre-construction permitting 

process. The proposed FIP was not 

intended to replace any other FIPs 

promulgated under the CAA for oil and 

natural gas sector sources in areas 

covered by the Federal Indian Country 

Minor NSR rule. Under the proposed 

FIP, an oil and natural gas source 

located in areas covered by the Federal 

Indian Country Minor NSR rule that is 

subject to another CAA FIP would have 

to continue to comply with that FIP and 

also have to comply with the proposed 

FIP. Generally, in cases where emission 

sources are already subject to a CAA FIP 

with more stringent requirements than 

those established for equivalent 

emission sources under the proposed 

FIP, those sources would be subject to 

the requirements of both FIPs, but those 

more stringent requirements supersede 

the requirements in this proposed FIP 

and compliance with the more stringent 

requirements would constitute 

compliance with both FIPs relative to 

those particular requirements. 

Conversely, if requirements for certain 

emission sources in the proposed FIP 

are more stringent than requirements for 

equivalent emission sources in another 

applicable CAA FIP, then those sources 

would be subject to the requirements of 

both FIPs, but the requirements in the 

proposed FIP supersede the 

requirements for equivalent emission 

sources in the other FIP and compliance 

with the more stringent requirements in 

the FIP would constitute compliance 

with the requirements of both FIPs 

relative to those particular 

requirements. In the case of the FIP for 

Oil and Natural Gas Well Production 

Facilities on the Fort Berthold Indian 

Reservation (FBIR FIP) 46 at §§ 49.4161– 

49.4168,47 we defer to less stringent 

requirements in other federal CAA rules 

to avoid duplicative requirements. The 

FBIR FIP provides an exception to the 

general concept that the more stringent 

set of requirements govern. 

In the September 2015 proposed FIP, 

we specifically addressed how it related 

to the FBIR FIP. The FBIR FIP is not a 

permitting program and does not 

exempt facilities from any federal CAA 

permitting requirements, which 

includes compliance with this FIP. 

Similarly, the proposed oil and natural 

gas FIP would not exempt facilities from 

complying with the FBIR FIP. The EPA 

recognizes that the VOC control 

requirements under the FBIR FIP are in 

some instances more stringent than 

those in the proposed FIP. For example, 

in the proposed FIP, we indicated that 

a new or modified oil and natural gas 

well production facility that is subject to 

the FBIR FIP—and also subject to the 

proposed FIP—would still need to 

comply with the FBIR FIP for casing 

head natural gas emissions and heater 

treater produced natural gas emissions. 

Requirements for these units were not 

contained in the proposed FIP. 

2. Final Action 

In this final action we are not 

changing our proposal in terms of how 

this FIP relates to other Indian country 

FIPs. However, there were several 

comments in this area that we are 

responding to below that relate to the 

proposal. 

3. Comments and Responses 

The following discussion contains 

comments on issues related to the FIP 

and our responses. The comments and 

responses are also addressed in Section 

2.0 of the RTC Document. 

Comment #5: One commenter 

requested that the EPA clarify how 

numerical VOC emission limitations 

will be applied through compliance 

with 40 CFR part 63, subpart HH, when 

the subpart has numerous compliance 

options that often do not contain 

specific numerical emission limitations. 

The commenter noted that the proposed 

FIP would create enforceable VOC 

emission reductions for glycol 

dehydrators through the requirements of 

40 CFR part 63, subpart HH, using HAPs 

as a surrogate for VOCs. 

Response #5: The FIP does not impose 

a separate VOC limit for glycol 

dehydration units that are subject to 40 

CFR part 63, subpart HH (i.e., 

independently of the FIP, the source 

will have to comply with the HAP 

control requirements, which also 

effectively control VOC and may or may 

not involve numerical emissions 

limitations). While the EPA recognizes 

that 40 CFR part 63, subpart HH, 

specifies several different control 

requirements depending on several 

factors (e.g., major/area source status of 

the facility, actual natural gas 

throughput of the dehydrators, urban/

rural location), any dehydrators subject 

to those standards will satisfy 

compliance with the FIP for those units 

by fully complying with the MACT 

standard. We have not made any 

changes in response to this comment. 

Comment #6: One commenter stated 

that the proposed oil and natural gas FIP 

falls short in meeting several core 

objectives for permitting oil and natural 

gas sector facilities. The commenter 

stated that the foundation of the 

proposed FIP is still based on sitespecific reviews, which by definition 

will inhibit its streamlining capabilities, 

and that this poses an obstacle to 

permitting. This could place future oil 

and natural gas development in Indian 

country at a disadvantage compared to 

more streamlined options available 

under state jurisdictions. 

Response #6: The EPA disagrees that 

the foundation of the proposed FIP is 

based on source-specific permit reviews. 

While source-specific permits remain an 

option available to sources that do not 

wish to comply with the FIP, apart from 

addressing threatened and endangered 

species and historic properties, those 

sources that do wish to comply with the 

FIP need only register in accordance 

with the provisions of § 49.160(c)(1)(iv). 

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48For more information, go to: www.epa.gov/

advance. 

This streamlined permitting mechanism 

allows for sources to begin construction 

30 days after submittal of the Part 1 

registration information. We have not 

made any changes in response to this 

comment. 

Comment #7: One commenter 

requested that the EPA clarify how the 

proposed FIP will provide practical 

enforceability when several of the six 

rules included in the proposed FIP, 

such as 40 CFR part 63, subpart HH, do 

not contain practically enforceable 

requirements. The commenter noted 

that, because several of the standards do 

not contain practically enforceable 

requirements, sources that wish to 

restrict their PTE will be forced to 

obtain a source-specific permit. The 

commenter stated that the proposed FIP 

would fail to achieve the objective of 

providing sources a streamlined 

approach for obtaining legal and 

practically enforceable emission 

limitations. 

Response #7: A source has to be a true 

minor source to use the FIP. The FIP is 

not intended to provide a mechanism 

for establishing synthetic minor sources. 

We have not made any changes in 

response to this comment. 

Comment #8: One commenter (a state 

agency) noted that North Dakota 

regulations for natural gas capture have 

been enforced on the Fort Berthold 

Indian Reservation under multiple tax 

and regulatory agreements between the 

state and tribes. The commenter stated 

that the proposed rule will increase the 

number and complexity of conflicts 

with North Dakota regulations and the 

existing negotiated agreements. One 

commenter stated that the proposed rule 

could have significant impacts on their 

ability to administer their oil and 

natural gas regulatory program, and 

recommended that the proposed rule 

recognize and give deference to existing 

state and tribal agreements for natural 

gas permitting and regulation. 

Response #8: The FIP adopted 

through this final action only applies to 

sources locating in Indian country and 

does not impose any requirements on 

sources located on state lands. The EPA 

also notes that the State of North Dakota 

has not been approved by the EPA to 

administer any program under the 

federal CAA on the Fort Berthold Indian 

Reservation. The EPA notes that there 

are no new requirements included as 

part of the FIP, only those rules already 

applicable to oil and natural gas sources 

under existing federal NSPS and 

NESHAP rules are included. We have 

not made any changes in response to 

this comment. 

Comment #9: One commenter stated 

that the Federal Indian Country Minor 

NSR rule and the FIP should provide 

industry more flexible compliance 

options that are cost effective without 

compromising significant emissions 

reductions. The commenter suggested 

that the Federal Indian Country Minor 

NSR rule and the FIP should include an 

early action program, noting that, 

considering the uncertainty surrounding 

ozone standard designations in the 

Uinta Basin, an early action program 

would remove the risk for industry 

investments in emission reductions by 

ensuring appropriate credit for those 

investments. The commenter also 

suggested that the Federal Indian 

Country Minor NSR rule and the FIP 

should include an option for portfoliowide emissions compliance, noting that 

a portfolio-wide approach would 

provide many operators the needed 

flexibility to more efficiently and costeffectively achieve system-wide 

emission reductions that meet 

regulatory goals. 

Response #9: Ozone Advance is the 

early action program that the EPA is 

offering to promote local efforts aimed 

at reducing ozone.48 The program, 

which began in 2012, is available to 

states, local governments, and tribes that 

are interested in working proactively 

and collaboratively with the EPA to 

select and implement measures and 

programs that may reduce ozone air 

quality levels in attainment areas. Other 

stakeholders, such as industry, are 

encouraged to become actively involved 

in these efforts. Ozone Advance will 

continue to be available in conjunction 

with the Federal Indian Country Minor 

NSR rule, this FIP and any future, final 

FIPs developed for specific areas. As 

appropriate, such FIPs could consider 

portfolio-wide options allowing 

operators to reduce their emissions 

across entire tribal areas. We have not 

made any changes in response to this 

comment at this time. 

Concerning ‘‘credit’’, the EPA cannot 

pre-approve State Implementation Plan 

(SIP)/TIP ‘‘credit’’ for emission 

reductions in areas that are not the 

subject of a nonattainment designation. 

However, early actions to improve air 

quality can both serve to prevent areas 

from becoming nonattainment and 

better position an area to comply with 

the requirements associated with an 

eventual nonattainment designation. For 

example, early emission reduction 

actions could potentially receive 

‘‘credit’’ in future SIPs/TIPs if an area is 

eventually designated nonattainment 

with a Moderate or higher classification, 

either in terms of reflecting a lower 

baseline from which additional 

reductions are needed to meet 

reasonable further progress goals or, if 

they occur after the baseline year, as a 

measure that shows progress toward 

attainment. 

If emission reductions occur after the 

baseline year, the area may take credit 

for those reductions subject to CAA 

requirements, such as demonstrating 

that the reductions are surplus, 

quantifiable, enforceable, and 

permanent. The state or tribe would also 

need to meet any other relevant 

requirement in CAA section 110 and/or 

section 172, and if the measure is 

voluntary, the state or tribe would need 

to make an enforceable commitment to 

ensure that the estimated emission 

reductions are achieved. Credit earned 

in this manner means that fewer 

additional emission reductions will be 

needed to meet reasonable further 

progress goals and to demonstrate 

attainment, thereby bringing the finish 

line of attainment with the ozone 

NAAQS closer. 

D. Requirements Relating to Threatened 

or Endangered Species and Historic 

Properties 

1. Proposed Rule 

In the proposed rule, we proposed 

requirements for true minor oil and 

natural gas sources relating to 

threatened and endangered species and 

historic properties. The Endangered 

Species Act (ESA) requires federal 

agencies to ensure, in consultation with 

the U.S. Fish and Wildlife Service and/ 

or the National Marine Fisheries Service 

(the Services), that any action they 

authorize, fund, or carry out will not 

likely jeopardize the continued 

existence of any listed threatened and 

endangered species, or destroy or 

adversely modify the designated critical 

habitat of such species. The National 

Historic Preservation Act (NHPA) 

requires federal agencies to take into 

account the effects of their undertakings 

on historic properties—i.e., properties 

that are either listed on, or eligible for 

listing on, the National Register of 

Historic Places—and to provide the 

Advisory Council on Historic 

Preservation (the Council) a reasonable 

opportunity to comment on such 

undertakings. 

In developing the proposed FIP, EPA 

considered issues regarding listed 

species and historic properties and 

included provisions designed to ensure 

appropriate review of potential impacts 

on these protected resources. Although 

the individual coverage of each source 

that would operate under the FIP would 

not constitute a separate triggering 

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49These procedures are available for sources 

potentially subject to this proposed FIP in a 

document entitled: ‘‘Procedures to Address 

Threatened and Endangered Species and Historic 

Properties for the Federal Implementation Plan for 

True Minor Sources in Indian Country in the Oil 

and Natural Gas Production and Natural Gas 

Processing Segments of the Oil and Natural Gas 

Sector,’’ https://www.epa.gov/tribal-air/tribalminor-new-source-review. 

50 Ibid. 

51 ‘‘General Permits and Permits by Rule for the 

Federal Minor New Source Review Program in 

Indian Country,’’ 79 FR 2546, January 14, 2014, 

http://www.gpo.gov/fdsys/pkg/FR-2014-01-14/pdf/

2013-30345.pdf. 

52Note that the two options for addressing 

threatened and endangered species and historic 

properties in the final FIP have also been made 

available to other source categories for which we 

have issued general permits and permits by rule, 

albeit in a different manner. Rather than prescribe 

the options in regulation, we have made the options 

available as part of the procedures information we 

have provided as attachments to the Request for 

Coverage Forms and the Notification of Coverage 

Forms for the general permits and permits by rule 

we have issued, respectively. 

action for ESA or NHPA purposes, we 

believe that the proposed FIP’s 

procedures relating to listed threatened 

and endangered species and historic 

properties provide an appropriate sitespecific means of addressing issues 

regarding potential impacts on those 

resources in connection with issuance 

of the FIP and, thus, in connection with 

sources that could be covered under the 

FIP. We provided two options, as 

follows, for sources to meet the 

proposed FIP’s requirements regarding 

these resources: 

(1) For sources for which a prior ESA 

and/or NHPA assessment has been 

completed, in the proposed FIP we 

indicated that, where Federal Land 

Managers (FLMs) have concluded ESA 

and/or NHPA compliance as part of the 

process in which an oil and natural gas 

operator makes an Application to Drill 

(APD) in connection with a particular 

source—whether as part of the FLM’s 

NEPA review or otherwise—the source 

would be able to rely on that prior 

review for compliance with the 

proposed FIP’s listed species (if prior 

ESA compliance has occurred) and 

historic properties (if prior NHPA 

compliance has occurred) requirements. 

No further assessment of impacts on 

these resources would be required by 

the proposed FIP as any such 

assessment would be duplicative of the 

prior work conducted by the FLM(s). 

We would require that documentation 

of completion of the APD process be 

provided before the owner/operator 

begins construction under the FIP. 

(2) For sources for which no prior 

ESA and/or NHPA assessment has been 

completed, in the proposed FIP we 

indicated that those facilities must first 

complete screening procedures relevant 

to the particular resource that have not 

previously been reviewed before the 

owner/operator can begin construction 

under the proposed FIP. These 

screening procedures are similar to 

those currently in place for existing 

general permits and permits by rule in 

areas covered by the Federal Indian 

Country Minor NSR rule that must be 

completed before the owner/operator 

can begin construction under those 

general permits and permits by rule.49

We stated that the review of the 

screening procedures would be similar 

to our procedure for general permits and 

permits by rule, for the proposed FIP, 

where once an owner/operator 

completes the screening procedures,50

they would submit documentation to 

the EPA Regional Office and receive 

written verification of completion before 

beginning construction. As we 

explained in the development of both 

the general permits and permits by rule 

for the ‘‘General Permits and Permits by 

Rule for the Federal Minor New Source 

Review Program in Indian Country,’’ 51

to ensure listed species and critical 

habitats and historic properties are 

protected, we developed a framework 

for those permitting mechanisms 

requiring the source owner/operator to 

identify and assess potential effects on 

protected resources before obtaining 

coverage. Requiring this assessment aids 

in identifying any concerns related to 

potential impacts on listed species/

critical habitat or historic properties 

early in the process when the greatest 

opportunities to mitigate or avoid any 

impacts—including changes to the 

facility’s location or footprint—are 

available. The EPA believes that 

requiring a similar process in the air 

quality permit by rule, the general air 

quality permit, and the proposed FIP 

will streamline the process for all 

concerned: the applicants, the EPA, the 

tribes, and any resource experts such as 

the Services or historic preservation 

officers. 

2. Final Action 

In the final FIP, we have not changed 

the overall approach for requiring 

sources to address threatened and 

endangered species and historic 

properties. We are continuing to provide 

two options for sources to address 

threatened and endangered species and 

historic properties.52 However, we are 

modifying § 49.104 of the proposed FIP 

to further specify what information will 

be accepted to document that a source 

has addressed threatened and 

endangered species and historic 

properties through actions by another 

federal agency. We are also clarifying 

that for sources providing 

documentation to the effect that they 

satisfy the criteria under § 49.104(a)(1) 

through a prior assessment conducted 

by another federal agency, that they can 

submit the documentation with the Part 

1 Registration Form. 

With respect to specific 

documentation requirements, the final 

FIP requires the owner/operator to 

submit to the EPA Regional Office (and 

to the tribe where the source is located/ 

locating) documentation demonstrating 

that prior ESA and/or NHPA 

compliance has been completed by 

another federal agency in connection 

with the specific oil and natural gas 

activity operated under the FIP. The 

appropriate documents would have to 

clearly show that the other Federal 

agency had met its statutory obligations 

under both the ESA and NHPA. A 

simple reference to a Record of Decision 

(ROD) or other final decision document 

will not be acceptable. An example of 

acceptable documentation would be a 

letter from the Fish and Wildlife Service 

(FWS) for ESA or a historic preservation 

office for NHPA stating they agree with 

the assessment for the subject project 

and that the relevant sections of those 

statutes have been satisfied by the 

agency conducting the review of the 

proposed oil and natural gas activity. In 

addition, if a biological assessment and/ 

or biological opinion have been 

prepared as part of the assessment 

under the ESA, then copies of those 

documents shall also be provided. The 

owner/operator must be in compliance 

with all measures required as part of 

that prior ESA and/or NHPA process. 

With respect to the process for 

sources using the screening procedures 

provided by the EPA for threatened and 

endangered species and historic 

properties, we indicated in the proposal 

that we would follow criteria similar to 

that used for general permits and 

permits by rule where the completed 

screening procedures are submitted to 

the EPA Regional office for review and 

written approval is obtained before 

beginning construction. Therefore, we 

are paralleling the procedures used for 

Permits by Rule in § 49.104(a)(2) of the 

FIP to address submittal and review of 

completed screening procedures. Within 

30 days of receipt of a source’s 

documentation, the Reviewing 

Authority must provide a determination 

by letter to the source that: (1) The 

documentation satisfactorily 

demonstrates completion of the 

threatened and endangered species and 

historic property screening procedures; 

or (2) the documentation is not adequate 

and additional information is needed. If 

the initial submittal is deficient, the 

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53To find these procedures, go to: https://

www.epa.gov/tribal-air/tribal-minor-new-sourcereview. 

Reviewing Authority will note any such 

deficiencies and may offer further 

direction on completing the screening 

procedures. Once the source has 

addressed the noted deficiencies, it 

must submit revised screening 

procedure documentation for review. 

An additional 15-day review 

notification period will be used for the 

Reviewing Authority to determine 

whether the screening procedures have 

been satisfied. Provided that they have, 

the Reviewing Authority will then send 

the source a letter indicating approval. 

The source must obtain a letter from the 

Reviewing Authority indicating that the 

source has adequately completed the 

processes regarding threatened and 

endangered species and historic 

properties before it can begin 

construction under the FIP. This process 

of source documentation submittal and 

the EPA’s confirmation that it has 

satisfactorily completed the procedures 

must occur prior to the source’s 

submittal of its Part 1 Registration Form 

pursuant to § 49.160(c)(1)(iv). 

3. Comments and Responses 

The following discussion contains 

comments on requirements relating to 

threatened or endangered species and 

historic properties and our responses. 

The comments and responses are also 

addressed in Section 2.0 of the RTC 

Document. 

Comment #10: Two commenters 

expressed concern about the EPA’s 

authority to impose requirements 

relating to threatened or endangered 

species and historic properties in the 

proposed national FIP. These 

commenters stated that where there is 

no federal nexus, the EPA has no 

jurisdiction to require ESA or NHPA 

consultations. These commenters also 

noted that the EPA is not a surface land 

management agency and does not have 

jurisdiction on state and private lands to 

require such consultations where a 

federal nexus does not exist. Another 

commenter claimed that imposition of 

these ESA and NHPA requirements as 

conditions of using the FIP is unlawful 

and unreasonable. The commenter 

stated that it is unlawful because the 

ESA and NHPA are triggered only when 

a federal action is taken, and that as 

EPA acknowledges in the preamble, the 

use of the FIP by an affected source does 

not require any federal action. 

Therefore, the commenter believes that 

there is no need or justification for 

imposing ESA or NHPA requirements 

when an affected source avails itself of 

the FIP. 

Response #10: We disagree with the 

commenters’ statement that the EPA 

lacks authority to require assessments of 

potential impacts on these resources as 

sources are covered under the FIP. 

Consistent with the EPA’s authority 

under the CAA, the EPA has built the 

screening procedures into the FIP as an 

adequate and appropriate means of 

addressing potential impacts on these 

resources. Given the intended scope of 

the FIP, it would be very difficult, if not 

impossible, for the EPA to evaluate such 

potential impacts in all areas where the 

FIP might apply. As a result, the EPA 

has concluded that the only way to 

address potential impacts on these 

resources in conjunction with the FIP, 

which is intended to provide a 

streamlined mechanism for complying 

with the Federal Indian Country Minor 

NSR rule, is to require the owners/

operators to do it. Although the EPA is 

not a land management agency, the EPA 

is the federal agency promulgating the 

FIP, which will cover sources 

irrespective of whether they locate on 

federal or non-federal land. The EPA 

understands that completing the 

screening procedures will impose some 

burden on covered sources. However, 

the EPA has attempted to streamline 

these procedures to the extent 

practicable while ensuring appropriate 

consideration of the resources. We have 

not made any changes to the ESA/NHPA 

procedures as a result of these 

comments. 

Comment #11: Four commenters 

expressed concern that the FIP’s 

requirements for additional analysis 

addressing listed species and historic 

properties where a prior assessment by 

another federal agency has not been 

completed will lead to lengthy 

permitting delays. One commenter 

stated that the added secondary layer of 

listed species and historic property 

approval proposed by the EPA will add 

delay and expense, while duplicating 

existing protections for species and 

cultural resources. One commenter 

stated that the inclusion of site-specific 

reviews for listed species and historic 

properties contradicts the EPA’s 

statement in the preamble that the 

purpose of the FIP is to provide a 

‘‘streamlined’’ approach to permitting 

minor oil and natural gas sources on 

Indian lands, which would be 

accomplished in part by imposing 

‘‘unambiguous’’ requirements on 

affected sources. The commenter 

asserted that case-specific listed species 

and historic property review is the 

antithesis of an unambiguous process. 

Response #11: The EPA has 

promulgated the FIP to streamline the 

NSR permitting process to allow sources 

to avoid potential delays associated 

with individual source permitting. In 

connection with issuance of the FIP— 

which provides the relevant CAA 

authorization for sources to construct— 

the EPA has also added the threatened 

and endangered species and historic 

property screening procedures as an 

appropriate means of addressing 

potential impacts on these resources as 

sources are covered under the FIP. As 

indicated below, the EPA does not view 

coverage of individual sources under 

the FIP as separate ESA or NHPA 

triggering events. However, given the 

intended scope of the FIP, it would be 

very difficult, if not impossible, for the 

EPA to evaluate the potential impacts 

on the relevant resources in all areas 

where the FIP might apply. As a result, 

the EPA has concluded that the only 

way to address these impacts in 

conjunction with issuing this FIP, 

which is intended to provide a 

streamlined mechanism for complying 

with the Federal Indian Country Minor 

NSR rule, is to require owners/operators 

to do it. The EPA has, however, 

provided significant streamlining 

opportunities in this process by 

providing an avenue for covered sources 

to rely on prior listed species/historic 

property assessments done in 

connection with other federal agency 

permits or authorizations, and the EPA 

anticipates that many of the covered 

sources will have undergone such prior 

assessments and, thus, will require no 

further analysis. If analysis is required 

in those few cases where no prior 

assessment is available, the EPA has 

provided straightforward procedures for 

sources to complete their own 

assessments.53 No changes were made 

as a result of this comment. 

Comment #12: Two commenters 

stated that, while federal actions trigger 

ESA consultation and NHPA review, 

compliance with the FIP itself is not a 

federal action triggering ESA and NHPA 

review. One of these commenters noted 

that the EPA acknowledged in the 

preamble that the use of the FIP by an 

affected source does not require any 

federal action. The other commenter 

stated that many of the new sources and 

modifications undertaken in reliance on 

this FIP will have already been 

authorized by another federal action 

that complies with ESA and NHPA, and 

that compliance with the FIP by these 

new sources and modifications is not 

the federal action. The commenter 

added that for projects that have not 

undergone some earlier or concurrent 

federal authorization process, 

compliance with the FIP is not the 

federal action. The commenter further 

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54These experts possess the knowledge—and, 

under their statutes and regulations, the authority 

and responsibility—necessary to assess impacts on 

protected resources and to judge the adequacy of 

any mitigation measures needed to protect those 

resources. 

indicated that NESHAPs and NSPS 

present an analogous situation—sources 

complying with NESHAPs and NSPS 

across the country do not trigger ESA 

and NHPA reviews. 

Another commenter noted that the 

approach the EPA is taking with the FIP 

is unique as compared to any other 

directly applicable substantive CAA 

rule. For example, EPA recently 

proposed changes to 40 CFR part 60, 

subpart OOOO, which also applies to 

affected sources that would be covered 

by the FIP (40 CFR part 60, subpart 

OOOO, is included in the proposed 

FIP). The commenter noted that there is 

no mention of ESA or NHPA in the 40 

CFR part 60, subpart OOOOa, proposal. 

In the commenter’s view, like the FIP, 

40 CFR part 60, subpart OOOO (and the 

proposed 40 CFR part 60, subpart 

OOOOa), effectively authorize the 

construction of new sources and 

modification of existing sources. And, 

like the FIP, 40 CFR part 60, subpart 

OOOO, applies directly to affected 

sources without any need or 

requirement for case-specific 

authorization or decision-making. The 

commenter asserts that the difference in 

approach between the proposed FIP and 

other directly applicable CAA 

substantive rules is unexplained and 

unexplainable and that there is no 

justification for imposing ESA and 

NHPA requirements under the FIP. 

Response #12: The EPA agrees that 

each separate coverage under the FIP 

does not constitute an action that 

triggers ESA/NHPA. However, the EPA 

disagrees that the listed species and 

historic property screening procedures 

included in the FIP impose ESA or 

NHPA compliance requirements on 

covered sources. These screening 

procedures are intended to be an 

appropriate means of addressing 

potential impacts on the relevant 

resources in connection with the EPA’s 

issuance of the FIP, which provides 

CAA authorization for sources to 

construct in lieu of individual or other 

permitting under the Federal Indian 

Country Minor NSR rule. 

The screening procedures are 

requirements of the FIP—not of the ESA 

or NHPA—and are consistent with the 

EPA’s authority under the CAA. These 

requirements are appropriate for the 

FIP, which, as noted above, provides 

CAA authorization for sources to 

construct without the need for separate 

NSR permitting. By contrast, NSPSs and 

NESHAPs impose emission reduction 

requirements on sources, but are not 

separate authorizations for construction. 

We have not made any changes as a 

result of these comments. 

Comment #13: One commenter 

expressed concern about the potential 

burdens associated with the listed 

species and historic property 

compliance provisions and urged the 

EPA to clarify when an affected facility 

is permitted to rely on a prior NEPA 

analysis to fulfill these requirements. 

This commenter asked the EPA to 

clarify that the prior NEPA review need 

not be conducted simultaneously with 

the construction or modification of the 

affected facility, referring to cases where 

the BIA or BLM may have completed an 

applicable NEPA review well in 

advance of the specific construction 

activity. This commenter also requested 

that the EPA consider whether 

programmatic environmental impact 

statements (EISs) can satisfy the relevant 

requirements, noting that programmatic 

EISs can address both ESA and NHPA 

issues on a reservation-by-reservation 

basis in a manner that addresses both 

the historic resources and endangered 

species that may be present in a given 

area. This commenter stated that 

allowing individual sources to rely on 

prior ESA and NHPA analyses in a 

programmatic EIS can provide further 

streamlining benefits that will reduce 

the costs of implementation, while 

ensuring that environmental goals are 

met. 

Response #13: The EPA has added 

regulatory text to the final rule to clarify 

the documentation that needs to be 

submitted with the Part 1 Registration 

Form, what the documentation must 

show, and the process by which it must 

be submitted. The documentation must 

demonstrate that, for the project site 

operating under the FIP, another Federal 

agency (e.g., BLM or BIA) had met its 

applicable statutory obligations under 

the ESA and NHPA in connection with 

its involvement with the project. An 

example of acceptable documentation 

would be a letter from the FWS (for 

ESA) or a historic preservation office 

(for NHPA) stating that the project has 

been reviewed, and the relevant statutes 

have been satisfied by the agency 

conducting the review, that any impacts 

of the project have been assessed, and 

any appropriate mitigation included. 

Such letters may, for instance, include 

a concurrence from FWS that a project 

will have no likely adverse effects on 

listed species or critical habitat. 

Comment #14: One commenter 

requested that the EPA provide a 

procedure for reviewing the ESA and 

NHPA analyses conducted by other 

agencies (e.g., BIA and BLM) to ensure 

that it is adequate and sufficient. The 

commenter stated that the EPA must 

ensure that emissions from a proposed 

project do not adversely impact 

threatened or endangered species or 

their habitat. The commenter added that 

the many sensitive cultural sites and 

areas of special cultural and spiritual 

significance to tribes and their members 

must receive the full protection they 

deserve under the law. 

Response #14: The EPA appreciates 

the commenter’s concern that listed 

species and historic properties, 

including properties of specific interest 

to Indian tribes, receive appropriate 

consideration and protection. The EPA 

believes as a general matter that the 

agencies with relevant resource 

expertise 54 (e.g., the U.S. Fish and 

Wildlife Service and Tribal and State 

Historic Preservation Officers) are best 

qualified to ensure that the 

considerations the commenter is raising 

related to threatened and endangered 

species and cultural resources are 

addressed. The EPA has thus included 

appropriate screening procedures in the 

FIP to ensure that a complete 

assessment of covered projects occurs, 

either as part of a separate federal 

agency’s prior compliance with the ESA 

and NHPA in connection with a source, 

or during a source’s screening review 

under the FIP if no such prior 

assessment is available. In either 

scenario, the expert resource agencies 

will be appropriately involved in the 

consideration of any impacts on the 

resources and in the development of any 

relevant mitigation measures. The EPA 

will then ensure that sources have 

successfully completed the assessment 

process, that the documentation is 

available, and that the sources are in 

compliance with the FIP’s requirements, 

including requirements with adequate 

measures to address air quality issues. 

By way of example, the EPA envisions 

the process could work as follows: an 

oil and natural gas owner/operator 

submits a request to drill to BLM or BIA; 

BLM/BIA initiate a comprehensive 

review of the project’s potential impacts 

on the protected resources and engage 

in any required consultations with the 

expert resource agencies prior to 

approving new oil and natural gas 

activity; these consultations and 

assessments address direct and indirect 

effects of the action on the protected 

resources; the process concludes with 

relevant concurrences or other final 

decisions regarding the project’s 

impacts and identification of any 

mitigation measures; and the source 

submits required information to the EPA 

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35962 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

55 ‘‘Review of New Sources and Modifications in 

Indian Country: Extension of Permitting and 

Registration Deadlines for True Minor Sources 

Engaged in Oil and Natural Gas Production in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 81 FR 9109, February 24, 2016, https://

www.gpo.gov/fdsys/pkg/FR-2016-02-24/pdf/2016- 

03623.pdf. 

under the FIP to demonstrate 

compliance with the ESA and NHPA as 

part of the prior review. The EPA notes 

that this process may occur as part of a 

review by the other federal agency 

under NEPA, in which case the EPA 

may be involved as one of the reviewing 

agencies of the NEPA assessment. In 

light of the degree of involvement of the 

land management federal agencies in 

project oversight and the expertise of 

the resource agencies, the EPA 

anticipates that this process will result 

in appropriate consideration of any 

impacts on the protected resources and 

that additional involvement by the EPA 

in that review would not provide 

meaningful additional input. The EPA 

has revised the regulatory text to specify 

what documentation relating to another 

Federal agency’s compliance with ESA 

and NHPA is acceptable to demonstrate 

that these requirements are met. 

E. Rationale for the FIP 

1. Proposed Rule 

In the section of the preamble on the 

rationale for the proposed FIP, we 

addressed four topics: 

• Choice of a FIP as an alternative to 

source-specific permits, general permits 

and permits by rule; 

• How we select which equipment to 

include in the proposed FIP; 

• Why we are excluding existing 

sources from the proposed oil and 

natural gas FIP; and 

• Why we proposed to extend the 

permitting deadline for oil and natural 

gas true minor sources in areas covered 

by the Federal Indian Country Minor 

NSR rule? 

We are addressing the first three 

topics in Sections IV. E., H. and J. 

below, respectively. The fourth topic 

concerning the extension has already 

been addressed in a separate final 

action.55

Generally, with respect to the 

rationale for the FIP, we indicated that 

our proposal represented a proper 

exercise of our authority under 

§ 49.11(a) of the Tribal Authority Rule 

which states that the EPA shall 

promulgate without unreasonable delay 

such FIP provisions as are necessary or 

appropriate to protect air quality, 

consistent with the provisions of 

sections 301(a) and 301(d)(4), if a tribe 

does not submit a TIP meeting the 

completeness criteria of 40 CFR part 51, 

appendix V, or does not receive EPA 

approval of a submitted tribal 

implementation plan (see § 49.11(a)). 

We indicated that the proposed FIP 

would apply to new and modified true 

minor sources that are located or 

expanding in the referenced areas of 

Indian country designated as 

attainment, unclassifiable or attainment/ 

unclassifiable. It would not apply to 

new and modified true minor sources 

that are located or expanding in 

referenced areas of Indian country 

designated nonattainment. Thus, 

underlying the proposal was the EPA’s 

belief that the FIP as proposed would be 

protective of air quality in areas of 

Indian country designated attainment, 

attainment/unclassifiable and 

unclassifiable but not areas designated 

nonattainment. Sources locating or 

expanding in areas designated as 

nonattainment would be required to 

obtain source-specific permits pursuant 

to the Federal Indian Country minor 

NSR rule, thereby allowing the EPA to 

include any requirements needed to 

provide air quality protection beyond 

that provided by the FIP. In addition, 

the EPA retains the authority under the 

FIP to require sources locating or 

expanding in areas designated 

attainment, attainment/unclassifiable 

and unclassifiable to obtain sourcespecific permits if it determines that this 

is necessary to protect air quality in a 

particular area. The FIP as proposed 

included a comprehensive set of 

standards, including the requirements 

under 40 CFR part 60, subpart OOOOa, 

which has undergone revision and 

reflects the latest in oil and natural gas 

control measures. 

2. Final Action 

The EPA continues to believe that this 

final FIP that relies on eight federal 

standards for its requirements will be 

protective of air quality in attainment, 

attainment/unclassifiable and 

unclassifiable areas, provided the EPA 

retains the ability to require sourcespecific permits and/or area-specific 

FIPs where needed to protect air quality 

in specific areas. Below are several 

comments on this issue and our 

responses. 

3. Comments and Responses 

The following discussion contains 

comments on issues related to the 

rationale for the proposed FIP and our 

responses. The comments and responses 

are also addressed in Section 3.0 of the 

RTC Document. 

Comment #15: One commenter stated 

that the EPA has provided no assurance 

that the regulations included in the FIP 

will adequately address air quality 

problems in Indian country and ensure 

compliance with all applicable 

standards, including the NAAQS, PSD 

Program, and the visibility protection 

program. The commenter noted that, 

although the EPA proposes a FIP to 

streamline the permitting process, the 

proposed FIP does not achieve the goals 

of the case-by-case permitting the EPA 

established in the Federal Indian 

Country Minor NSR rule—namely 

adequate protection of public health and 

the environment. The proposed FIP 

would allow minor oil and natural gas 

sources to forego pre-construction 

review and permitting altogether and 

instead simply self-certify that they will 

comply with the six regulations that 

already apply within Indian country. 

The EPA has provided no analysis of 

whether these six regulations will 

adequately address the air quality 

problems in Indian country or ensure 

compliance with the NAAQS, PSD 

Program, and the visibility protection 

program. 

Response #15: The EPA believes that 

the eight regulations included in the 

final rule represent a robust set of 

control measures that are adequate to 

protect air quality in Indian country in 

attainment, attainment/unclassifiable 

and unclassifiable areas. The EPA can 

require source-specific permits where 

needed to further protect air quality in 

these areas. 

In addition, the Federal Indian 

Country Minor NSR rule does not 

require an air quality analysis in all 

instances for minor source permits even 

in the context of a source-specific 

permit. While § 49.154(c)(1)(i) indicates 

that we will consider ‘‘[l]ocal air 

quality’’ in determining whether to 

issue a source-specific permit, it does 

not require an air quality analysis and 

in fact § 49.154(d) establishes specific 

circumstances in which the Reviewing 

Authority can require the owner/

operator to conduct an air quality 

impacts analysis (AQIA). Air quality 

factors are just one consideration with a 

source-specific permit. We have not 

made any changes as a result of this 

comment. 

Comment #16: One commenter stated 

that the EPA did not conduct any 

control technology review, air quality 

impacts analysis, or dispersion 

modeling for the proposed FIP. 

Response #16: The EPA’s analysis and 

review consisted of establishing a set of 

requirements that we believe are 

sufficient to protect the NAAQS and 

PSD increments in attainment, 

attainment/unclassifiable and 

unclassifiable areas with the caveat that 

the EPA can require source-specific 

permits where needed to further protect 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35963 

56The EPA will not designate areas as 

nonattainment based on these data, but likely based 

on 2014–2016 data. 57Supporting information can be found in: 

Docket ID No. EPA–HQ–OAR–2014–0606. 58 Ibid. 

air quality in a given area. Moreover, all 

eight regulations included in this FIP 

are based on the EPA’s analyses of 

available technologies. The FIP requires 

compliance with the most current 

version of these regulations. So, the 

control requirements in this FIP will 

stay up to date, as these rules are based 

on the most current technologies. 

Finally, as noted above, the Federal 

Indian Country Minor NSR rule does 

not require an air quality analysis in all 

instances when a permit is issued even 

with a source-specific permit. No 

changes were made as a result of this 

comment. 

Comment #17: One commenter 

expressed concern about the lack of any 

requirements in the proposed FIP for air 

quality monitoring and modeling, and 

recommended that the proposed FIP 

include requirements to improve air 

quality monitoring and modeling within 

Indian country. This commenter noted 

that the air quality in many areas of 

Indian country with oil and natural gas 

development exceeds federal public 

health standards for ozone and 

particulates. The commenter expressed 

concern that, without adequate 

monitoring, the EPA cannot ensure that 

it is protecting public health from the 

emissions associated with oil and 

natural gas development. This 

commenter stated that the most efficient 

and expedient method of providing 

such a monitoring network is requiring 

operators to install and operate 

monitors. The commenter noted that the 

EPA has authority under CAA section 

114 to require operators to install and 

operate ambient air quality monitors. 

Response #17: With respect to 

monitoring, the EPA works closely with 

tribes, as well as state and local 

partners, to implement and maintain a 

national ambient air monitoring 

program. In many cases, ambient 

networks include more monitors than 

are required by minimum requirements 

in the EPA’s monitoring regulations. 

The EPA Regional Administrators have 

the authority to require additional 

monitoring in a variety of situations; 

such authority is specifically noted 

throughout the language in Appendix D 

to 40 CFR part 58, Network Design 

Criteria for Ambient Air Quality 

Monitoring. Accordingly, the EPA 

believes that the current authority to 

require monitoring above minimum 

requirements is sufficient to support 

this final rule and the need to employ 

additional air quality monitoring in 

areas of Indian country where the air 

quality may not be fully characterized. 

As the commenter points out, the EPA 

has the authority under section 114 of 

the CAA to require air quality 

monitoring if it determines that this is 

necessary in a particular areas. For these 

reasons, we do not believe that 

including monitoring requirements in 

this rule is necessary. Additionally, the 

EPA is exploring alternative sensor 

technology that can be used to 

compliment traditional compliancebased monitoring based on Federal 

Reference Method or Federal Equivalent 

Method monitoring equipment. The 

EPA anticipates that alternative sensor 

technology may be used in the future as 

a screening tool to determine if longer 

term monitoring with more specialized 

equipment is needed. 

Regarding modeling, as noted above, 

the Federal Indian Country Minor NSR 

rule does not require an air quality 

analysis (and the modeling that would 

accompany it) in all instances when a 

permit is issued even with a sourcespecific permit. With respect to the final 

FIP, we do not believe that modeling is 

necessary; rather, we believe that the 

suite of eight federal regulations that 

constitute the FIP’s set of control 

requirements are sufficent to protect air 

quality in areas of Indian country 

designated attainment, attainment/

unclassifiable and unclassifiable. We 

have not made any changes in response 

to this comment. 

With respect to air quality in areas of 

Indian country with oil and natural gas 

development, currently we are not 

seeing widespread air quality problems. 

Based on air quality data for 2012– 

2014,56 (outside of Oklahoma) there are 

only two counties that meet three 

criteria: Have Indian country present; 

have design values (DVs) above the level 

of the current ozone NAAQS (70 parts 

per billion [ppb]); and have oil and 

natural gas activity. The two counties 

that meet these three criteria are in Utah 

and are: Duchesne and Uintah 

Counties.57 The majority of the land 

area in both of these counties is on the 

Uintah and Ouray Reservation. For the 

Uintah and Ouray Reservation, we have 

sufficient concerns about the air quality 

impacts from existing sources that we 

plan to propose a separate reservationspecific FIP. 

For areas designated nonattainment 

for NAAQS (2008 ozone NAAQS, 2006 

and 2012 PM2.5 NAAQS), based on air 

quality DVs for 2012–2014, there are not 

any areas that meet three criteria: Have 

Indian country present; have DVs above 

the level of the NAAQS; and have oil 

and natural gas activity.58

Comment #18: One commenter 

expressed concern about the lack of 

enforcement requirements in the FIP. 

The commenter noted that the proposed 

FIP provides few, if any, enforcement 

tools, and requested that the EPA 

clarify, add, and expand enforcement 

requirements in the final rule. The 

commenter encouraged the EPA to 

implement Next Generation Compliance 

techniques (such as self-certification 

and photographic verification, per 40 

CFR part 60, subpart OOOO) in the final 

rule, and recommended that the EPA 

should also robustly pursue standard 

enforcement procedures in Indian 

country. 

Response #18: Since the EPA is 

relying on the monitoring, 

recordkeeping and reporting 

requirements in the eight rules 

underlying this final FIP to be 

comprehensive in ensuring compliance, 

we do not feel that additional, separate 

compliance measures are needed. The 

requirements in the eight rules are 

independently enforceable under those 

rules as well as being enforceable under 

the FIP. An owner/operator is 

responsible for correctly permitting its 

sources. If it is later determined that the 

source is not complying with the 

emission limitations and standards 

prescibed in the eight rules as required 

by the FIP, the EPA can take 

enforcement action to bring a source 

into compliance. The EPA can also 

enforce major source requirements in 

situations where it is determined that a 

source emitted or has the potential to 

emit pollutants in major source 

amounts. We have not made any 

changes as a result of this comment. 

F. The FIP as an Alternative to SourceSpecific Permits, General Permits and 

Permits by Rule 

1. Proposed Rule 

With respect to source-specific 

permits, we proposed that owners/

operators of new and modified true 

minor oil and natural gas sources that 

meet all of the following criteria must 

comply with the requirements 

contained in §§ 49.101 through 49.105 

of the proposed FIP, unless the owner/ 

operator opts-out of the FIP and instead 

obtains a source-specific permit per 

proposed § 49.101(b)(2) and (3): 

• The facility is an oil and natural gas 

production facility as defined in 

proposed § 49.102; 

• The oil and natural gas production 

facility is located in areas covered by 

the Federal Indian Country Minor NSR 

rule as defined in § 49.152(d) as 

proposed to be amended in the action; 

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35964 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

• The oil and natural gas production 

facility is a new true minor source or a 

minor modification of an existing true 

minor source as determined under 

§ 49.153; 

• The oil and natural gas production 

facility begins construction or 

modification on or after October 3, 2016, 

the proposed extended permitting 

deadline date; and 

• The oil and natural gas production 

facility is not located in a designated 

nonattainment area (the proposed FIP 

would only apply to true minor sources 

in the oil and natural gas sector locating 

or expanding in areas designated as 

attainment, attainment/unclassifiable or 

unclassifiable). 

Under the proposed FIP, sources 

covered by the Federal Indian Country 

Minor NSR rule that do not meet all of 

the criteria listed above are not eligible 

to use the FIP and must, therefore, 

obtain a source-specific permit prior to 

beginning construction, on or after 

October 3, 2016. 

If a source owner/operator does not 

want to comply with the FIP, they have 

the option to apply for a source-specific 

permit instead to meet the obligation 

under § 49.151(c)(1)(iii)(B) of the 

Federal Indian Country Minor NSR rule 

to obtain a permit prior to commencing 

construction of a new true minor source 

or modification of an existing true 

minor source. As part of the FIP, we 

proposed specific rule language in 

§ 49.101(b)(2) to allow true minor 

sources proposing to construct on or 

after the proposed, extended deadline 

date of October 3, 2016, to opt-out of the 

default FIP if preferred by the owner/

operator. We proposed that an owner/

operator of a source otherwise subject to 

the proposed FIP can opt out and seek 

a source-specific permit under 

§ 49.151(c)(1)(iii). 

We also proposed that the EPA, or 

other Reviewing Authority, may require 

owners/operators to obtain a sourcespecific permit in lieu of complying 

with the proposed FIP to ensure 

protection of the NAAQS. Under 

§ 49.101(b)(3), we proposed to specify 

that the Reviewing Authority may 

require an owner/operator of a source 

proposing to construct in certain areas 

of Indian country on or after October 3, 

2016, to apply for a source-specific 

permit for a new true minor source or 

minor modification of an existing true 

minor source where necessary to protect 

air quality. In particular, the Reviewing 

Authority may determine that the 

source is not sufficiently controlled 

under the proposed FIP to protect the 

NAAQS in the area of the proposed 

project (e.g., if the measured DV for the 

area is close to or above the level of the 

NAAQS). In that circumstance, the 

Reviewing Authority can require the 

minor source to obtain a source-specific 

permit. The agency recommends that at 

the time of registration, the owner/

operator of new and modified sources 

contact the Reviewing Authority about 

the air quality status of the area, and the 

need to obtain a source-specific permit. 

Concerning the selection of a FIP as 

an alternative to source-specific permits, 

general permits and permits by rule, in 

the ANPR, we committed to developing 

an alternative to source-specific permits 

primarily to avoid delays in new 

construction due to the burden of 

processing hundreds of true minor 

source permits in a timely manner. A 

FIP provides a regulatory tool that 

protects air quality, streamlines 

implementation and compliance 

assurance, and meets the EPA’s 

obligation to permit minor NSR sources. 

The alternatives—source-specific 

permits, general permits and permits by 

rule—do not satisfy all of these 

concerns, which we explain in the 

preamble of the September 18, 2015 

action proposing the FIP. 

Unlike NSR general permits and 

permits by rule, which cannot be used 

to address existing sources, a FIP could 

extend to existing sources; this is a key 

distinction between general permits and 

permits by rule versus a FIP. However, 

the proposal did not contain 

requirements for existing sources. We 

indicated that our plan is to address 

existing sources, to the extent necessary, 

in the context of area- or reservationspecific FIPs designed to address areas 

or reservations with air quality issues 

(including nonattainment or possible 

nonattainment areas), as they arise, that 

are associated with oil and natural gas 

activities. Such FIP(s) would need to 

address, as necessary, requirements for 

existing sources, as well as additional 

requirements beyond those in this 

proposal for new and modified sources. 

2. Final Action 

After carefully considering the 

comments received, we have decided to 

retain the FIP as the streamlined 

mechanism for permitting true minor 

sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector in Indian country. We believe 

that our initial reasoning laid out in our 

proposal is still sound in light of 

comments received. We also believe that 

we need to retain the provision in the 

FIP as proposed with respect to sourcespecific permits. In the final FIP under 

§ 49.101(b)(2), owners/operators of 

facilities that meet the criteria specified 

for eligibility in the FIP can choose to 

obtain a source-specific permit in lieu of 

complying with the FIP as specified in 

40 CFR 49.155 before beginning 

construction; any such source would 

not be required to comply with the 

requirements of §§ 49.101 to 49.105. In 

addition, under § 49.101(b)(3) of the 

final FIP, with advance notice owners/ 

operators of facilities that meet the 

criteria specified for eligibility in the 

FIP can be required by the Reviewing 

Authority to obtain a source-specific 

permit to ensure protection of the 

NAAQS as specified in 40 CFR 49.155 

before beginning construction; any such 

source would not be required to comply 

with §§ 49.101 to 49.105. 

3. Comments and Responses 

The following discussion contains 

comments on issues related to the 

choice of FIP as an alternative to sourcespecific permits, general permits and 

permits by rule and our responses. The 

comments and responses are also 

addressed in Section 4.0 of the RTC 

Document. 

Comment #19: One commenter 

proposed that a general permit or permit 

by rule would be the best permitting 

approach for Indian country and could 

allow for legally and practically 

enforceable limits. They further 

suggested that ambient air quality 

impact modeling could be used to 

develop the general permit or permit by 

rule to ensure protection of the NAAQS. 

Response #19: In the ANPR, the EPA 

committed to developing an alternative 

to source-specific permits primarily to 

avoid delays in new construction due to 

our inability to process potentially 

thousands of true minor oil and natural 

gas source permits in an acceptable 

timeframe. Comments received on the 

ANPR and on the proposed FIP were 

generally supportive of a FIP approach, 

which we are finalizing. As indicated 

above, we continue to believe that the 

FIP approach can best protect air quality 

in attainment, attainment/unclassifiable 

and unclassifiable areas, while 

providing streamlined permitting. We 

do not believe that modeling is 

necessary to ensure air quality 

protection in attainment, attainment/

unclassifiable and unclassifiable areas 

given the comprehensive nature of the 

requirements in the eight standards 

underlying this FIP. 

Comment #20: Several commenters 

expressed concern that a FIP would not 

provide an opportunity for comment 

about a specific facility’s coverage under 

a FIP. In particular, commenters noted 

that there may be concerns specific to 

particular sites that are not addressed 

within the existing FIP. One commenter 

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59The dates and locations of the hearings were as 

follows: Denver, Colorado, September 23, 2015; 

Dallas, Texas, September 23, 2015; and Pittsburgh, 

Pennsylvania, September 29, 2015. ‘‘Source 

Determination for Certain Emission Units in the Oil 

and Natural Gas Sector; Oil and Natural Gas Sector: 

Emission Standards for New and Modified Sources; 

and Review of New Sources and Modifications in 

Indian Country: Federal Implementation Plan for 

Managing Air Emissions From True Minor Sources 

Engaged in Oil and Natural Gas Production in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 80 FR 51991, August 27, 2015, https://

www.gpo.gov/fdsys/pkg/FR-2015-08-27/pdf/2015- 

21255.pdf. 

60For example, for EPA Region 8, the following 

Web site will be used to provide the completed 

registration forms: https://www.epa.gov/caapermitting/tribal-nsr-permitting-region-8. 

noted that under a FIP, tribes and the 

public are only provided a one-time 

opportunity to provide feedback on the 

proposed rule and would not be 

provided the opportunity to comment 

on individual sources proposed in their 

tribal area. 

Response #20: The EPA agrees with 

the importance of providing opportunity 

for comment on the FIP. The EPA held 

three public hearings across the 

country 59 to solicit comments on the 

proposed FIP and also extended the 

public comment period on the proposed 

FIP by 21 days from November 14, 2015 

until December 4, 2015. If the EPA 

requires a source-specific permit or 

develops an area-specific FIP, there will 

be additional opportunity for public 

comment on those specific permitting 

actions at that time. 

In addition, new and modified 

sources under the FIP will have to 

register and provide source information 

and emissions. Each completed 

registration will be added to the EPA 

Regional Office Web sites.60 If a citizen 

has information that a particular source 

may not be complying with the FIP, or 

that compliance with the FIP may not be 

sufficient due to air quality concerns in 

a particular area, the information could 

be brought to the EPA’s attention. 

Comment #21: One commenter 

requested a commitment from the EPA 

to provide funding to tribes for the 

development of TIPs to regulate minor 

oil and natural gas sources specific to 

areas under their jurisdiction, including 

the potential future regulation of 

existing minor sources. One commenter 

expressed an interest in developing a 

TIP. The commenter noted that the EPA 

promulgated the ‘‘Tribal Authority 

Rule’’ in 1998 to provide more detailed 

criteria and procedures for tribes to be 

treated as states under the CAA if they 

seek CAA program approval, and that 

tribes are authorized to develop a 

comprehensive TIP and to seek full 

authority to monitor and enforce the 

NAAQS within their reservation. The 

commenter expressed interest in 

exploring the possibility of working 

toward a TIP so that it may one day 

assume primacy over certain regulatory 

functions and gradually expand its 

authority. 

Response #21: The EPA supports 

tribes developing their own air 

programs and, as desired, TIPs. The EPA 

has historically provided funding and 

other technical support towards this 

goal, and we will continue to seek tribal 

air funding and support. In particular, 

we anticipate proactively supporting 

development of TIPs, especially in areas 

with air quality DVs above the NAAQS. 

Comment #22: Several commenters 

expressed concern about provisions in 

the proposed FIP allowing the EPA the 

discretion to require source-specific 

permitting to ‘‘ensure attainment of the 

NAAQS’’ on a case-by-case basis. This 

might particularly affect areas in Indian 

country where design values are close to 

the current ozone NAAQS of 70 ppb. In 

addition, commenters expressed 

concern that given the 30-day notice 

provided for under the FIP, the 

notification that a facility has been 

denied coverage under the FIP and will 

be required to obtain a source-specific 

permit might be received only at the last 

minute, causing financial burden on 

operators that have already initiated 

procurement of construction materials 

and labor. The commenters explained 

that the EPA should provide the criteria 

by which they will require sourcespecific permits, and should consider 

including modeling demonstrations as 

part of source-specific permitting. One 

commenter objected to the broad and 

unrestricted manner under which the 

FIP allows the EPA to require a source 

to obtain a source-specific permit, and 

requested that the EPA provide more 

definitive language on what critieria it 

would use to disallow a source to 

construct under the FIP and to require 

a source-specific permit. 

Response #22: The EPA continues to 

believe that this FIP will be protective 

of air quality in attainment, attainment/ 

unclassifiable and unclassifiable areas 

of Indian country, provided we retain 

the ability to require source-specific 

permitting as needed to protect air 

quality. The EPA intends to make those 

determinations on a case-by-case basis. 

Factors we will consider include: Levels 

of measured air quality relative to the 

NAAQS and rates of growth in oil and 

natural gas production activity and 

associated changes in emissions. Any 

decision to require source-specific 

permitting will apply to the entire area 

in question and to all sources planning 

to locate or expand in such area and we 

will provide advance notice to owners/ 

operators and tribes in the affected area 

prior to a programmatic, area-wide 

imposition of source-specific 

permitting. 

Comment #23: Several commenters 

encouraged the EPA to develop 

reservation-specific or region-specific 

FIPs that account for particular air 

quality concerns and that are consistent 

with the permitting rules and 

requirements of the surrounding states. 

This will help level the playing field 

between neighboring permitting 

jurisdictions and ensure that oil and 

natural gas development on tribal lands 

is not disadvantaged solely due to 

permitting differences. One commenter 

specifically referred to the Uintah and 

Ouray Indian Reservation, which is a 

tribal area at risk of nonattainment 

designation under the lowered ozone 

standard. The commenter noted that 

revenue generated from oil and natural 

gas development in this area is an 

important part of the tribal and regional 

economy. One commenter suggested 

that the EPA not wait until certain areas 

are re-designated as nonattainment to 

develop area-specific FIPs, but that the 

EPA should develop area-specific FIPs 

for areas in danger of re-designation 

immediately, notably the Uinta Basin 

and the San Juan Basin. 

One commenter stated that the EPA 

should define ‘‘necessary or 

appropriate’’ by identifying more 

specific criteria for when reservationspecific FIPs will be issued. The 

commenter suggested that one such 

criterion would be ozone concentrations 

close to the NAAQS. The commenter 

further recommended that the EPA 

should base its decision on the 

availability of two years of valid 

monitoring data, considering data from 

all available, reliable monitors, 

regardless of whether the EPA has 

certified them as regulatory monitors. 

Response #23: The EPA continues to 

believe that this FIP will be protective 

of air quality in attainment, attainment/ 

unclassifiable and unclassifiable areas 

of Indian country. We, nevertheless, 

have the authority to promulgate 

reservation-specfic FIPs if we determine 

that it is necessary or appropriate to 

protect air quality. The EPA intends to 

make those determinations on a case-bycase basis. Factors we will consider 

include: Levels of air quality the area in 

question is experiencing relative to the 

NAAQS, rates of growth in oil and 

natural gas production activity, and 

associated changes in emissions in the 

area in question. We will work with 

tribes in developing any area-specific 

FIP that we determine is necessary or 

appropriate to protect air quality and 

will provide notice and an opportunity 

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61 ‘‘Review of New Sources and Modifications in 

Indian Country—Amendments to the Federal 

Indian Country Minor New Source Review Rule,’’ 

U.S. Environmental Protection Agency, 79 FR 

31035, May 30, 2014, https://www.gpo.gov/fdsys/

pkg/FR-2014-05-30/pdf/2014-11499.pdf. 

62Per § 49.152(d), synthetic minor source means 

a source that otherwise has the potential to emit 

regulated NSR pollutants in amounts that are at or 

above those for major sources in § 49.167, § 52.21 

or § 71.2, as applicable, but that has taken a 

restriction so that its potential to emit is less than 

such amounts for major sources. Such restrictions 

must be enforceable as a practical matter. 

63 ‘‘General Permits and Permits by Rule for the 

Federal Minor New Source Review Program in 

Indian Country for Five Source Categories,’’ U.S. 

Environmental Protection Agency, 80 FR 25068, 

May 1, 2015, http://www.gpo.gov/fdsys/pkg/FR2015-05-01/pdf/FR-2015-05-01-FrontMatter.pdf. 

64 Ibid. 

65These forms can be found at: https://

www.epa.gov/tribal-air/tribal-minor-new-sourcereview. 

66Minor modifications at major sources are also, 

of course, not covered by the permits by rule we 

have issued thus far for reasons similar to the 

reasons for general permits. 

for comment prior to the promulgation 

of an area-specific FIP. 

Comment #24: One commenter noted 

that tribal areas across the country 

currently include thousands of wells, 

and that there are thousands more 

forthcoming. Accordingly, all of this 

activity gives rise to ever-increasing 

emissions, exposes tribal members to 

harmful air toxics and impacts visibility 

in Class I areas such as national parks 

and wilderness areas. In addition, oil 

and natural gas sector emissions include 

large quantities of methane, which 

contributes to climate change. The 

commenter encourages the EPA to 

develop national uniform requirements 

to protect public health and welfare and 

to mitigate the severity of climate 

change. 

Response #24: The EPA agrees with 

the commenters that oil and natural gas 

development in tribal areas results in 

emissions of harmful air toxics and 

other pollutants of concern. To mitigate 

these impacts, the proposed FIP 

included a uniform set of requirements 

from six current federal rules that apply 

in all tribal areas. In addition to these 

six, the EPA is adding two additional 

rules to the final FIP: 40 CFR part 60, 

subpart KKKK, and 40 CFR part 63, 

subpart ZZZZ. This suite of eight federal 

rules ensures: (1) Comprehensive 

application of the latest control 

technologies and unit processes found 

in the oil and natural gas sector; and (2) 

that the sector is controlled under the 

FIP. In addition, as needed to protect air 

quality, the EPA will continue to 

develop area-specific FIPs and/or utilize 

source-specific permitting for areas with 

poor or degraded air quality. The 

Federal Indian Country Minor NSR rule 

is not intended to address climate 

change per se; however, compliance 

with a number of the included rules will 

lead to co-reductions in emissions of 

methane, which is a potent greenhouse 

gas (GHG). 

Comment #25: One commenter 

requested to have certain activities not 

considered modifications, including inkind replacement of internal 

combustion and temporary engines, as 

well as control device additions, 

removals, and replacements as allowed 

by federal rules. This would allow 

operators to move equipment off site to 

perform needed repairs or maintenance 

to avoid production delays and to 

mitigate potential hazards associated 

with on-site maintenance. 

Response #25: On May 30, 2014, the 

EPA finalized revisions to the Federal 

Indian Country Minor NSR rule that 

exempted certain internal combustion 

engines from the permitting 

requirements under the rule.61 These 

included certain emergency generators 

and stationary engines with a 

horsepower rating less than 50. The 

final rule also provided guidance to 

industry specifically in response to a 

comment regarding the relocation or 

replacement of single pieces of 

equipment (e.g., an internal combustion 

engine) in the oil and natural gas sector. 

The source owner/operator should 

verify with its Reviewing Authority that 

the ‘‘matching’’ situation described in 

the preamble to the final May 30, 2014 

rule, and its stated outcome, applies to 

its case. Concerning control device 

additions, removals, and replacements, 

a broad exclusion for consideration as a 

modification cannot be given. Changes 

regarding control devices have the 

potential to increase emissions, and, 

thus, the potential emissions impact 

would have to be assessed by the 

owner/operator. To the extent that these 

changes result in emissions increases 

that fall below the minor NSR 

thresholds or satisfy the criteria under 

the definition of modification in 

§ 49.152, there would be no requirement 

to register the unit(s) or to make a 

change to a prior registration. Under 

§ 49.152, the following exemptions to 

modifications apply: 

• A physical or operational change 

does not include routine maintenance, 

repair or replacement. 

• An increase in the hours of 

operation or in the production rate is 

not considered an operational change 

unless such change is prohibited under 

any permit condition that is enforceable 

as a practical matter. 

• A change in ownership at a 

stationary source. 

• The emissions units and activities 

listed in § 49.153(c). 

G. Synthetic Minor Sources and Minor 

Modifications at Major Sources 

1. Proposed Rule 

With respect to synthetic minor 

sources, in the September 2015 

proposed FIP, the EPA did not structure 

the requirements to accommodate the 

creation of synthetic minor sources.62 In 

the Background portion of the notice, 

we noted that in May 2015 we took final 

action 63 on a set of general permits and 

permits by rule in which we also 

authorized the use of general permits 

established under the program to create 

synthetic minor sources. We did this by 

including requirements in the general 

permits that otherwise major sources 

could comply with to reduce their PTE 

to below major source levels. We 

indicated in that action that general 

permits (and not permits by rule) can 

serve as an appropriate mechanism for 

creating synthetic minor sources 

because permits by rule do not provide 

for the same level of review and 

scrutiny by the Reviewing Authority as 

general permits. They also do not 

provide the same level of public 

participation. More specifically, in the 

May 2015 final action, based on 

comments received, we decided to issue 

final general permits for two categories 

(and not the three others) that involve 

more complex operations and multiple 

pollutants because the general permit 

approval process provides an 

opportunity for case-specific Reviewing 

Authority review. Because permits by 

rule do not involve the same level of 

review, the EPA did not finalize the use 

of permits by rule to create synthetic 

minor sources. 

With respect to minor modifications 

at major sources, we did not address the 

issue per se in the proposed FIP, but we 

did address how to treat such cases in 

the permitting documents associated 

with the final May 2015 rule.64 In the 

Request for Coverage and Notification of 

Coverage Forms 65 from the May 2015 

rule, the EPA established requirements 

that sources include all existing, new 

and modified units in their PTE 

determinations for purposes of 

comparing that PTE to the major source 

thresholds. This exercise is necessary 

for determining eligibility for the 

general permits. If the sum of the 

potential emissions from all of these 

units exceeds the major source 

threshold, then the source is not eligible 

for the general permit. Effectively, this 

precludes minor modifications at major 

sources from general permit 

eligibility.66 Such sources require 

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source-specific permits that undergo 

Reviewing Authority review. We did 

provide an exception in the May 2015 

action for otherwise major sources that 

are willing to accept certain emissions 

limits, throughput, fuel and other limits 

and become synthetic minor sources, 

provided that the limits accepted by the 

source would lower source-wide PTE to 

below the major source NSR thresholds, 

counting emissions from all new, 

modified and existing units. 

2. Final Action 

After careful consideration of the 

comments, we continue to believe that 

the FIP is not an appropriate mechanism 

for establishing synthetic minor sources. 

We have, therefore, not made any 

changes to the FIP to accommodate its 

use to create synthetic minor sources. 

As indicated above, the EPA has an 

established policy that requires the 

Reviewing Authority have the 

opportunity to review any requests from 

a source for synthetic minor status; the 

FIP does not provide that opportunity. 

In this final action, we are also not 

modifying the FIP to authorize 

modifications at major sources. The FIP 

is being made available to true minor 

sources in lieu of a true minor source 

permit. As mentioned above, the general 

permits (and, as noted, permits by rule) 

the EPA has issued to date are for true 

minor sources and are not available for 

minor modifications at major sources. 

Since the FIP is in lieu of a minor 

source permit, similar to non-oil and 

natural gas sources, minor modifications 

at major sources must have sourcespecific permits that have undergone 

Reviewing Authority review. As noted 

above, we do allow general permits to 

create synthetic minor sources, which 

could involve a minor modification at a 

major source. Since we are not allowing 

for the creation of synthetic minor 

sources under the FIP for the reasons 

explained above, we are not allowing for 

the FIP to cover minor modifications at 

major sources. 

By definition, major sources are more 

complex than minor sources and, as 

noted above, we believe such 

complexity necessitates that a review— 

under a general permit or sourcespecific permit—needs to be conducted 

for all permitting-type changes, whether 

to obtain synthetic minor status or for a 

modification at an existing major 

source. Since this FIP does not provide 

for any EPA source-specific permit 

review, and is intended as a 

streamlining alternative to sourcespecific permitting, we do not believe it 

is appropriate to cover modifications at 

major sources in this FIP. 

We have added regulatory text to 

§ 49.101 to make it clear that the FIP 

does not apply to minor modifications 

at major sources. 

3. Comments and Responses 

The following discussion contains 

comments on the use of the FIP for 

establishing synthetic minor sources 

and minor modifications at major 

sources as an alternative to sourcespecific permits, general permits and 

permits by rule and our responses. The 

comments and responses are also 

addressed in Section 4.0 of the RTC 

Document. 

Comment #26: Several commenters 

requested that the EPA provide a 

mechanism for obtaining synthetic 

minor permits under the FIP. One 

commenter noted that there are a 

number of emission units common at oil 

and natural gas facilities that are not 

subject to the six federal regulations 

included in the proposed FIP, and that, 

therefore, would not be eligible for 

federally enforceable limits that are 

available for units covered under the six 

other rules. The commenter stated that 

unless such provisions were included, 

an overwhelming number of operators 

in Indian country will have to obtain 

source-specific permits. One commenter 

noted that most states with significant 

oil and natural gas production have 

streamlined permitting mechanisms 

(e.g., general permits or permits by rule) 

in place for synthetic minor sources, as 

does the Fort Berthold Indian 

Reservation FIP. Another commenter 

noted that this would disadvantage oil 

and natural gas development on tribal 

lands because companies may prefer to 

locate where streamlined synthetic 

minor permitting options are available. 

It was also suggested that other limits, 

such as those imposed by tribal 

authorities or the BLM, be considered 

‘‘enforceable as a practical matter’’ 

when considering the PTE and permit 

level. One commenter suggested 

insertion of the following language to 

allow for federally enforceable limits for 

emission units not subject to the six 

other rules: 

(a) Sources not subject to NSPS or 

NESHAPs may elect to comply with a NSPS 

or NESHAP under this FIP as a mechanism 

to establish enforceable conditions on the 

source’s potential to emit. Once the source 

elects to be subject to the NSPS or NESHAP, 

the NSPS or NESHAP are enforceable against 

the source under this FIP. 

(b)(i) Sources may elect to be subject to one 

or more facility-wide emission limits listed 

below. 

a. 249 tons per year of any NSR regulated 

pollutant in an attainment area; 

b. 99 tons per year of any NSR regulated 

pollutant in any nonattainment area; 

c. 24 tons per year of total hazardous air 

pollutants; 

d. 9 tons per year of any single hazardous 

air pollutant; 

e. 99 tons per year of any regulated 

pollutant; 

(ii) The facility-wide emission limits are 

12-month rolling limits. Once a source elects 

coverage under this paragraph, the source 

must demonstrate compliance every month 

based on emissions of the prior 12 months. 

(iii) Sources subject to this paragraph shall 

demonstrate compliance and determine 

emissions based on the monitoring and 

recordkeeping dictated in any NSPS or 

NESHAP for the types of equipment covered 

under the facility-wide emissions limit. 

(iv) Sources subject to this paragraph shall 

monitor emissions and emissions-related 

data and keep records consistent with NSPS 

or NESHAP monitoring and recordkeeping 

for the types of equipment covered by the 

emissions limit for the purposes of 

compliance with this paragraph, even if such 

equipment is not subject to the NSPS or 

NESHAP. 

The commenter suggested that the EPA 

allow for flexibility in synthetic minor 

limits in terms of production, 

throughput, or hours of operation. One 

commenter suggested that the EPA 

provide a general permit, or separate 

general permits for different unit types, 

pursuant to § 49.156 with a suite of 

standards that would allow for federally 

enforceable limits on units not subject 

to the six other rules included in the 

proposed FIP. Several commenters 

suggested that self-certification could be 

included in provisions allowing for 

synthetic minor limits, and that this 

would reduce the burden on the EPA to 

have to issue synthetic minor limits 

under a source-specific permit. 

Response #26: The current Federal 

Indian Country Minor NSR rule only 

allows the permitting of synthetic minor 

sources on a source-specific basis. The 

EPA’s review is necessary to establish 

synthetic minor limits because without 

the verification that the required 

controls and associated compliance 

provisions will accomplish their 

objective, the source is a major source. 

Due to the streamlined nature of the oil 

and natural gas FIP, such review is not 

part of the FIP’s process, which only 

requires source registration. Synthetic 

minor sources are more appropriately 

permitted under source-specific permits 

as they provide an opportunity for casespecific, Reviewing Authority 

evaluation. 

Moreover, the EPA’s Reviewing 

Authorities in our Regional Offices have 

seen no evidence of a high volume of 

requests for synthetic minor permits 

from oil and natural gas sources. Nor 

did commenters provide information on 

the volume of synthetic minor status 

requests to support the need for a 

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35968 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

67For more information, go to: https://

www3.epa.gov/airquality/oilandgas/index.html. 

synthetic minor option. Sources subject 

to the FIP are free to seek a sourcespecific sythetic minor permit pursuant 

to § 49.158. 

No changes will be made as a result 

of this comment. 

Comment #27: Several commenters 

requested that the EPA provide a 

mechanism under the FIP to allow for 

construction of minor modifications at 

major sources, as well as modifications 

at synthetic minor sources. One 

commenter noted that modifications 

occurring at major sources may be of the 

same type and size as a modification at 

a true minor source, yet these situations 

would be treated differently under the 

proposed FIP as they would require 

time-consuming source-specific permits. 

One commenter noted that the EPA 

should not use the term ‘‘minor 

modifications at true minor sources’’ in 

the rule because all modifications at a 

true minor source are covered under 

minor NSR. One commenter requested 

that the EPA replace references to 

‘‘minor modifications at existing true 

minor oil and natural gas sources’’ with 

‘‘minor modifications at existing oil and 

natural gas sources.’’ In addition, the 

commenter requested that the FIP allow 

for minor modifications at major sources 

as such modifications are allowed under 

the Federal Indian Country Minor NSR 

rule (§ 49.151). The proposed verbiage 

revisions would reflect that such 

modification at major sources were 

covered under the FIP. 

Response #27: The July 2011 Federal 

Indian Country Minor NSR rule 

provided for the streamlining of the 

permitting of true minor sources 

through the use of general permits (and 

eventually permits by rule), with the 

permitting of minor modifications at 

major sources requiring source-specific 

permitting. As indicated above in the 

discussion of the general permits and 

permits by rule that the EPA has already 

issued under the Federal Indian Country 

Minor NSR rule, this FIP is not a 

permitting option available for minor 

modifications at major sources. Major 

sources are more complicated than 

minor sources, and modifications at 

major sources are likely to be as well. 

Such sources require the in-depth 

review of source-specific permits. By 

streamlining less significant actions 

(i.e., true minor sources), we are freeing 

up resources for the EPA to address 

actions at the larger, more complex 

sources. As this FIP is limited to true 

minor sources (see response to 

comments above), the suggested change 

is not necessary and no change will be 

made as a result of this comment. 

Comment #28: One commenter 

requested that the EPA amend the 

Federal Indian Country Minor NSR rule 

to expand the definition of 

enforceability to allow limits to be 

considered ‘‘enforceable as a practical 

matter’’ to mean that a limit or standard 

is legally and praticably enforceable if a 

government authority, federal or tribal, 

has the right to enforce it. In particular, 

the commenter suggested that such 

limits could be imposed by the BLM or 

a tribal authority. 

Response #28: The definition of 

‘‘enforceable as a practical matter’’ in 

§ 49.152 states that an emission 

limitation or other standard is legally 

enforceable if the reviewing authority 

has the right to enforce it. Under this 

FIP, the EPA is the Reviewing 

Authority. Therefore, limits or other 

standards that are not enforceable by the 

EPA cannot be considered and no 

change will be made to the definition as 

a result of this comment. 

H. Nonattainment Areas 

1. Proposed Rule 

In the proposed rule, we addressed 

the issue of how to address 

nonattainment areas under the proposed 

FIP given that it only applies to 

attainment, attainment/unclassifiable 

and unclassifiable areas. It would not 

apply to any areas designated 

nonattainment. We indicated that the 

EPA or tribes will need to develop areaspecific plans if and when areas of 

Indian country become nonattainment 

for ozone or other NAAQS pollutants. 

At that time, any such area that has oil 

and natural gas minor source activity 

may require additional controls on 

existing (and new and modified) sources 

in order to achieve attainment of the 

NAAQS. One source of potential control 

options will be the EPA’s CTGs for oil 

and natural gas activity that the EPA has 

made available for comment and will 

finalize in 2016.67

2. Final Action 

The EPA has not made any changes to 

the final FIP’s requirements as it relates 

to nonattainment areas. The FIP does 

not apply in such areas. Before or after 

such an area is designated as 

nonattainment, we will promulgate an 

area-specific FIP for existing sources if 

we determine that it is ‘‘necessary or 

appropriate’’ pursuant to the Tribal 

Authority Rule. At that time, we will 

determine whether the final FIP should 

apply in the area or whether something 

more is required and will include in the 

area-specific FIP a provision or 

provisions putting the FIP, or some 

variation thereof, into effect in the area. 

The public will have an opportunity to 

comment on any such expansion of 

coverage of this FIP in the separate, 

area-specific action. 

3. Comments and Responses 

The following discussion contains 

comments on our proposal that the FIP 

does not apply in nonattainment areas 

and our responses. The comments and 

responses are also addressed in Section 

4.0 of the RTC Document. 

Comment #29: Several commenters 

requested that the EPA include 

provisions in the FIP to allow for 

streamlined permitting of minor oil and 

natural gas sources in nonattainment 

areas, including permitting in areas 

during the transition period between the 

time an area is designated as 

nonattainment and the time a FIP to 

control emissions adequately in such 

nonattainment area is in place. One 

commenter noted that with the lowered 

ozone standard, this issue may become 

particularly problematic in certain 

areas, most notably the Uinta Basin. 

Commenters requested that the FIP 

continue to provide for minor source 

permitting in such areas until a basinspecific permitting program becomes 

effective under the implementation 

planning process. Because an 

attainment plan is not due until three 

years after an area becomes 

nonattainment, the absence of a vehicle 

to allow for continuing minor source 

permitting would require sourcespecific permits during this transition 

period and would disadvantage oil and 

natural gas development in Indian 

country. One commenter suggested that 

the FIP continue as the permitting 

vehicle during the transition period, and 

that the EPA develop area-specific FIPs 

for re-designated areas that would 

supersede the national FIP upon 

issuance. 

Response #29: The EPA recognizes 

the potential for certain tribal areas to be 

designated as nonattainment for the new 

ozone standard. Currently, the 

permitting mechanism in place under 

the Federal Indian Country Minor NSR 

rule for oil and natural gas sources 

wishing to locate in nonattainment areas 

is limited to source-specific permits. We 

believe that this FIP as designed will be 

protective of air quality in attainment, 

attainment/unclassifiable and 

unclassifiable areas, but will not 

necessarily be protective in 

nonattainment areas without further 

action to reduce emissions from existing 

sources. Therefore, we are stating our 

intent to potentially apply this national 

FIP’s requirements as appropriate to 

nonattainment areas where the EPA has 

established a separate, area-specific FIP 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35969 

68 ‘‘Oil and Natural Gas Sector: Standards for 

Crude Oil and Natural Gas Facilities. Background 

Technical Support Document for the Proposed New 

Source Performance Standards 40 CFR part 60, 

subpart OOOOa,’’ U.S. Environmental Protection 

Agency, August 2015, EPA–HQ–OAR–2010–0505– 

5021, http://www.regulations.gov. 

action. In that separate, area-specific 

action we would propose—and seek 

comment on—the application of this 

FIP’s requirements to new and modified 

true minor sources in those certain areas 

designated nonattainment. 

It is important to note that the 

geographic scope of this FIP cannot be 

extended to cover any nonattainment 

areas without the EPA first proposing to 

apply its requirements to such an area 

through a separate rulemaking subject to 

notice and an opportunity to comment. 

We are here merely expressing our 

intent to use the approach described 

above in the future to provide coverage 

for new and modified true minor 

sources in Indian country 

nonattainment areas, should such areas 

exist, where the EPA believes that the 

FIP, or some variation thereof, in 

combination with an area-specific FIP, 

is sufficient to protect air quality. 

Our expression of intent to consider 

adopting this FIP in nonattainment 

areas as an accompaniment to an areaspecific FIP addressing existing sources 

is in direct response to comments 

requesting that this FIP be extended to 

tribal nonattainment areas at least for a 

period of time after designation and 

until it is replaced by another FIP that 

addresses new and modified sources. A 

factor in considering whether to extend 

the coverage of this FIP is if we believe 

that existing source emissions will be 

reduced to a great enough extent to 

allow room for further growth of the 

industry in the area, while also 

protecting air quality. As noted above, 

the public will have an opportunity to 

comment on any such expansion of 

coverage of this FIP in the separate, 

area-specific action. 

I. How the EPA Selected Equipment 

Included in the Proposed FIP 

1. Proposed Rule 

The proposed oil and natural gas FIP 

focused on the production segment of 

the oil and natural gas sector, because 

we believed this segment includes the 

majority of the true minor sources in the 

sector that would need to obtain a minor 

source permit in areas covered by the 

Federal Indian Country Minor NSR rule. 

In the preamble to the proposed rule, we 

described the natural gas production 

segment as ending where the natural gas 

enters a natural gas processing plant. In 

situations where there is no processing 

plant, the natural gas production 

segment ends at the point where the 

natural gas enters the transmission 

segment for long-line transport. The 

crude oil production segment ends at 

the storage and load-out terminal which 

is the point of custody transfer to an oil 

pipeline or for transport of the crude oil 

to a petroleum refinery via trucks or 

railcars. The petroleum refinery is not 

considered part of the oil and natural 

gas sector. 

In determining which equipment to 

include in the proposed oil and natural 

gas FIP, we reviewed the EPA 

regulations that apply to emission units 

within the oil and natural gas 

production segment. We have relied 

substantially on analyses performed in 

support of the 2015 proposed NSPS, 

subpart OOOOa, to help determine 

which emission units the EPA should 

consider regulating in the oil and 

natural gas sector in areas covered by 

the Federal Indian Country Minor NSR 

rule as part of this proposed FIP.68 In 

addition to the production segment 

sources proposed to be covered under 

NSPS, subpart OOOOa, in the proposed 

FIP, we proposed requirements from 

existing EPA standards for three 

emission sources not covered by the 

proposed NSPS, subpart OOOOa, 

because they are present at oil and 

natural gas production sites and emit 

NOX and/or VOC: Engines, process 

heaters and glycol dehydration units. 

Three of the six federal rules in the 

proposed FIP regulate these air 

emissions sources, among others. 

Therefore, we determined that a 

combination of existing federal 

regulations and the 2015 proposed 

NSPS, subpart OOOOa, provides a 

comprehensive and consistent 

regulatory approach for addressing true 

minor oil and natural gas production 

sources in areas covered by the Federal 

Indian Country Minor NSR rule. 

We concluded that these federal 

regulations include emission limitations 

that are technically and economically 

feasible, and cost effective because we 

have vetted the existing regulations via 

the public comment process and sources 

are currently complying with these 

federal standards, including new and 

modified sources in the oil and natural 

gas sector located in areas covered by 

the Federal Indian Country Minor NSR 

rule. The referenced NSPS are all 

promulgated pursuant to the EPA’s 

authority under CAA section 111. Under 

CAA section 111(a), the emission 

limitations for all the affected sources, 

except process heaters and glycol 

dehydrators, ‘‘reflect the degree of 

emission limitation achievable through 

the application of the best system of 

emission reduction which (taking into 

account the cost of achieving such 

reduction and any non-air quality health 

and environmental impact and energy 

requirements) the Administrator 

determines have been adequately 

demonstrated.’’ We refer to this level of 

control as the Best System of Emission 

Reduction (BSER). In determining 

BSER, we typically conduct a 

technology review that identifies what 

emission reduction systems exist and 

how much they reduce air pollution in 

practice. For each control system 

identified, we also evaluate its costs and 

other impacts. 

The NESHAP for process heaters and 

glycol dehydrators are promulgated 

pursuant to the EPA’s authority under 

CAA section 112. Under CAA section 

112(d)(3), the emission limitations for 

glycol dehydrators and process heaters 

at major sources of hazardous air 

pollutants (HAPs) reflect the application 

of maximum achievable control 

technology (MACT). The MACT 

emission limitation for new sources 

cannot be less stringent than the 

emission control achieved in practice by 

the best-controlled similar source, 

without considering costs. In addition, 

under CAA section 112(d)(5), the 

emission reduction requirements for 

triethylene glycol dehydrators at area 

sources reflect ‘‘generally available 

control technology’’ (GACT). For GACT 

there is no statutory minimum level of 

emissions reduction for new or existing 

sources and costs can be considered. We 

proposed that the oil and natural gas FIP 

require sources to comply with the 

applicable MACT (for glycol 

dehydrators and process heaters located 

at major sources of HAP) or GACT (for 

glycol dehydrators located at area 

sources of HAP) emission limitations. 

Because the individual HAP pollutants 

regulated from glycol dehydrators by the 

NESHAP (and to some degree from 

process heaters, as well) for oil and 

natural gas production sources are also 

VOC, which are regulated NSR 

pollutants, the proposed FIP would 

create enforceable VOC reduction 

requirements for glycol dehydrators and 

process heaters. HAPs would serve as a 

surrogate for VOC with respect to 

emission limitations, monitoring, testing 

and compliance. In addition, 

compliance with the 40 CFR part 63, 

subpart DDDDD, MACT also provides 

beneficial reductions of other nontargeted NSR pollutants, i.e., NOX. 

We indicated that the rationale 

supporting the applicability, emission 

limitations, monitoring, recordkeeping, 

reporting, and other provisions for each 

of the six federal rules is found in the 

preambles and background documents 

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35970 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

for those rulemakings. The six federal 

rules are available on the Electronic 

Code of Federal Regulations at: http://

www.ecfr.gov/cgi-bin/

ECFR?page=browse. 

2. Final Action 

In response to comments, we are 

expanding the scope of the FIP to 

provide coverage of natural gas 

processing plants. In § 49.102, we have 

modified the definition of oil and 

natural gas source (termed oil and 

natural gas production facility in the 

proposal) to facilitate this expansion. 

In part due to this expansion 

(resulting from our response to 

comments), we are also modifying 

§ 49.105 of the proposed FIP by adding 

two federal standards to the FIP’s set of 

requirements: 

• 40 CFR part 63, subpart ZZZZ— 

NESHAP for Stationary Reciprocating 

Internal Combustion Engines; and 

• 40 CFR part 60, subpart KKKK— 

Standards of Performance for New 

Stationary Combustion Turbines. 

Adding these standards to the FIP will 

provide standards for combustion 

turbines at gas processing plants and 

expand the standards in the FIP 

covering reciprocating internal 

combustion engines. 

3. Comments and Responses 

The following discussion contains 

comments related to how the EPA 

selected equipment included in the 

proposed FIP and our responses. The 

comments and responses are also 

addressed in Section 5.0 of the RTC 

Document. 

Comment #30: One commenter 

expressed concern that, in the absence 

of a FIP condition expressly requiring 

installation of equipment subject to the 

six other EPA rules included in the 

proposed FIP, a source could utilize 

second-hand equipment with no 

applicable NSPS or NESHAP 

requirement and, thus, operate with no 

control technology requirements or 

emission limitations as required by 

§ 49.154(c). The commenter 

recommended adding language to 

§§ 49.101 and § 49.105 expressly 

requiring installation of equipment 

subject to the six other rules included in 

the proposed FIP. 

Response #30: The EPA believes that 

the commenter’s proposal is not 

workable as it would limit operators to 

only installing equipment that is 

regulated by an EPA standard. 

Mandating the use of equipment that 

meets an EPA standard runs contrary to 

the FIP’s intent of applying a consistent 

set of national requirements across 

Indian country. In some instances 

sources may need to use a piece of 

equipment that is not subject to an EPA 

standard. Instead, our approach under 

the FIP is to require that equipment 

subject to one or more of the eight EPA 

standards comply with those standards 

for purposes of the FIP. As long as the 

equipment in question can meet the 

limits to which they are subject, 

regardless of the mechanism used to do 

so, the owner/operator should be able to 

use that equipment. We believe that this 

approach is sufficient to protect air 

quality in attainment, attainment/

unclassifiable and unclassifiable areas. 

No change will be made as a result of 

this comment. 

Comment #31: Three commenters 

asked the EPA to expand the scope of 

the proposed rule to include minor oil 

and natural gas sources outside the 

production segment. All three 

commenters requested that natural gas 

processing plants be added; two 

commenters requested that natural gas 

transmission and storage facilities be 

added, and one commenter requested 

that natural gas distribution facilities be 

added. One commenter asked the EPA 

to indicate whether it intends to 

regulate any or all of these segments in 

the future, and if so, what is the EPA’s 

projected timetable. One commenter 

recommended that the language in 

§ 49.101(b)(1)(i) be modified to read: 

‘‘The facility is an oil and natural gas 

production facility or natural gas 

processing plant as defined in § 49.102;’’ 

Response #31: In response to these 

comments, the EPA has determined to 

expand the regulatory language in the 

FIP to cover true minor natural gas 

processing plants. The EPA has added 

the requirements of 40 CFR part 60, 

subpart KKKK, to the list of standards 

to cover turbines at compressor stations. 

The EPA notes that it is not necessary 

to add 40 CFR 60, subpart KKK— 

Standards of Performance for 

Equipment Leaks of VOC From Onshore 

Natural Gas Processing Plants for Which 

Construction, Reconstruction, or 

Modification Commenced After January 

20, 1984, and on or Before August 23, 

2011, or 40 CFR part 60, subpart LL— 

Standards of Performance for SO2

Emission from Onshore Gas Processing 

for which Construction Commenced 

after January 20, 1984, and on or Before 

August 23, 2011. These rules are already 

included in the current FIP 

requirements because they are already 

included in the oil and natural gas 

NSPS rule at 40 CFR part 60, subpart 

OOOOa. The EPA is also adding the 

requirements of 40 CFR 63, subpart 

ZZZZ—National Emissions Standards 

for Hazardous Air Pollutants for 

Stationary Reciprocating Internal 

Combustion Engines to the FIP in the 

final rule. We are comfortable with 

including these additional facilities 

under the FIP to cover true minor 

natural gas processing facilities because 

the rules will require adequate control 

and we do not feel that source-specific 

review is necessary just as we do not 

regard it as necessary (unless we make 

an exception for air quality concerns) 

for true minor sources in the oil and 

natural gas production segment of the 

oil and natural gas sector. 

With respect to the timetable for any 

future regulation of the oil and natural 

gas sector, all segments in the sector are 

already subject to regulation by the EPA 

under the Federal Indian Country Minor 

NSR rule. However, only certain 

segments are included in this FIP 

because we believe that the vast 

majority of true minor sources in the oil 

and natural gas sector are in the oil and 

natural gas production and natural gas 

processing segments of the sector. 

Comment #32: One commenter stated 

that the proposed definition for ‘‘oil and 

natural gas production facility’’ should 

be revised to exclude references to 

mobile and temporary sources, such as 

well drilling, completion, workover 

activities, and portable non-selfpropelled equipment because the CAA 

expressly precludes application of NSR 

and title V to mobile sources, such as 

portable, engine-powered well-drilling 

equipment and portable reciprocating 

internal combustion engines. The 

commenter recommended that the EPA 

should make it clear that these sources 

are not subject to air permitting 

requirements under the oil and natural 

gas FIP. This same commenter stated 

that the proposed oil and natural gas 

production facility definition does not 

include common unit operations such 

as water treatment, sweetening units 

(acid gas removal units), truck loading, 

and dew point suppression skids. The 

commenter noted that language such as 

‘‘low to medium pressure, small 

diameter’’ are arbitrary descriptions for 

gathering pipelines, and that these 

equipment are better described by 

purpose (i.e., to gather field gas). The 

commenter recommended the following 

change to the oil and natural gas 

production facility definition. They 

recommended the following additions 

and deletions: 

• Adding ‘‘water’’ to the list of 

materials to be separated or treated; 

• Adding the following items to the 

list of production components: Natural 

gas sweetening, truck loading. and dew 

point suppression skids; and 

• Deleting the following items from 

the list of production components: Well 

drilling, completion and workover 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35971 

69This FIP only covers the oil and natural gas 

production and natural gas processing segments of 

the oil and natural gas sector because we believe 

that the vast majority of true minor sources in the 

oil and natural gas sector are in those two segments. 

processes and portable non-selfpropelled apparatuses associated with 

those operations; and low to medium 

pressure, smaller diameter, gathering 

pipelines and related components that 

collect and transport the oil, natural gas 

and other materials and wastes from the 

wells or well pads. 

Response #32: The EPA has replaced 

the definition of ‘‘oil and natural gas 

production facility’’ in § 49.102 as 

proposed with ‘‘oil and natural gas 

source.’’ The new definition 

incorporates some of the suggestions 

recommended by the commenter. We 

did not include the segments of 

transmission or distribution of natural 

gas in the definition because they do not 

fall within the scope of coverage of this 

FIP.69 However, we believe that 

completion and workover processes 

should not be removed from the 

definition because they are stationary 

sources regulated under 40 CFR part 60, 

subpart OOOOa. This makes the 

treatment of these sources under the FIP 

definition (§ 49.102) consistent with 

definitions related to the oil and natural 

gas sector in 40 CFR part 60, subpart 

OOOOa; 40 CFR part 63, subpart HH; 

and the FBIR FIP. 

Comment #33: One commenter 

recommended that specific oil and 

natural gas exploration and production 

equipment be regulated under the 

proposed FIP. Specific equipment 

recommended for inclusion in the FIP 

includes: Drill rigs, liquids unloading, 

dehydrators, truck loadout, and phase 

separation. The commenter 

recommended that plunger lifts be 

required for all liquids unloading. The 

commenter recommended that 

dehydrators be required to control VOC 

by 95 percent by using a condenser. 

Response #33: The EPA feels that the 

original suite of six federal rules 

proposed to be included in the FIP, in 

conjunction with the two additional 

federal rules added under this final 

action, combine to adequately control 

emissions from oil and natural gas 

facilities for purposes of the FIP. It 

should be noted that drilling rig engines 

are not considered stationary sources for 

purposes of permitting under the 

Federal Indian Country Minor NSR rule, 

and dehydrators are addressed under 40 

CFR part 63, subpart HH (National 

Emission Standards for Hazardous Air 

Pollutants from Oil and Natural Gas 

Production Facilities), which is one of 

the eight federal rules included in the 

FIP. No change has been made as a 

result of this comment. 

Comment #34: One commenter 

recommended that the proposed FIP 

include regulation of emissions from 

well completions for both oil and 

natural gas wells, as well as casinghead 

gas and associated gas emissions. The 

commenter referenced 

recommendations in an ICF 

International report (ICF International, 

Economic Analysis of Methane 

Emission Reduction Opportunities in 

the U.S. Onshore Oil and Natural Gas 

Industries (March 2014), at 3–3, 

available at: http://www.edf.org/sites/

default/files/methane_cost_curve_

report.pdf). 

Response #34: The FIP includes the 

recently revised Standards of 

Performance for New and Modified 

Sources in the Oil and Natural Gas 

Sector (40 CFR part 60, subpart 

OOOOa), which requires control of oil 

and natural gas well completions for 

hydraulically fractured wells. 

Casinghead gas and associated gas 

emissions from venting or flaring during 

ongoing production are not currently 

addressed under the eight federal rules 

included in the final FIP; however, if 

those emissions sources are regulated 

under a future revision of subpart 

OOOOa, then they would automatically 

fall under the requirements of this FIP 

at true minor sources. No change has 

been made as a result of this comment. 

Comment #35: Two commenters 

recommended that the EPA clarify the 

definition of natural gas processing 

plant by revising it to be consistent with 

the definition in other air rules. Both 

commenters stated that the EPA should 

clarify that a Joule-Thompson valve, 

dew point depression valve, or an 

isolated or standalone Joule-Thompson 

skid does not make a site a natural gas 

processing plant. Both commenters 

recommended that the EPA reference or 

include in § 49.102 the definition of a 

natural gas processing plant contained 

in 40 CFR part 60, subpart OOOO 

(§ 60.5430). 

Response #35: The FIP proposal did 

not include a definition of natural gas 

processing plant. In this final action we 

are modifying § 49.102 to revise the 

definition of an ‘‘oil and natural gas 

production facility’’ (now ‘‘oil and 

natural gas source’’) to make the 

treatment of these sources under the FIP 

definition (§ 49.102) consistent with 

definitions related to the oil and natural 

gas sector in 40 CFR part 60, subpart 

OOOOa; 40 CFR part 63, subpart HH; 

and the FBIR FIP. We have also 

included natural gas processing plant as 

part of the definition of ‘‘oil and natural 

gas source’’ under § 49.102. 

One of the two commenters 

recommending including the definition 

of gas processing plant from 40 CFR part 

60, subpart OOOO, provided incorrect 

language for the definition. Nonetheless, 

we have concluded that adding a 

definition for natural gas processing 

plant to the FIP is unnecessary; 

including natural gas processing plant 

in the definition of source is sufficient 

to extend the coverage of this FIP to 

non-major natural gas processing plants. 

At the beginning of § 49.102 we make it 

clear that all terms not defined in the 

section shall have the meaning given 

them in 40 CFR part 60, subpart 

OOOOa, among other sources, which 

would include how natural gas 

processing plant is defined in the 

subpart. 

Comment #36: One commenter noted 

that the current list of referenced federal 

NSPS and NESHAP regulations does not 

include 40 CFR part 63, subpart ZZZZ— 

National Emission Standards for 

Hazardous Air Pollutants for Stationary 

Reciprocating Internal Combustion 

Engines. The commenter stated that the 

EPA should make it clear in the 

preamble and ensure that no regulatory 

language of the FIP excludes oil and 

natural gas sources from relying on 

subpart ZZZZ to limit the PTE of 

engines to be able to qualify for the FIP. 

The commenter recommended that 

subpart ZZZZ be included in the list of 

referenced rules (at § 49.105(g)) as 

follows: 

‘‘For sources that are subject to 

subpart ZZZZ, National Emission 

Standards for Hazardous Air Pollutants 

for Stationary Reciprocating Internal 

Combustion Engines, for purpose of this 

FIP, sources must comply with all of the 

applicable provisions of the standard as 

written as of [INSERT DATE OF FINAL 

PROMULGATION OF O&G FIP]:’’ 

Response #36: The EPA has included 

the requirements of 40 CFR part 63, 

subpart ZZZZ, into the final FIP as 

requested by the commenter. As with all 

of the appplicable requirements from all 

eight of the regulations referenced in 

this FIP, a source can rely on the 

reductions required by 40 CFR part 63, 

subpart ZZZZ, to reduce its PTE. 

Comment #37: One commenter 

recommended that the FIP require all 

new compressor engines to install steam 

injection and control technologies such 

as low-emission combustion retrofit, 

selective catalytic reduction (SCR), or 

selective non-catalytic reduction (SNCR) 

and to require existing sources to retrofit 

with the appropriate control. The 

commenter further recommended that 

the EPA should require the use of 

electric motors for new engines unless 

the operator shows it is infeasible to do 

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35972 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

70Sour gas is natural gas with more than 5.7 

milligrams of H2S per normal cubic meters (0.25 

grains/100 standard cubic feet), see AP–42 

Compilation of Air Pollutant Emission Factors, 

Chapter 5.0 Introduction to Petroleum Industry, 

Section 5.3 Natural Gas Processing, available at: 

http://www.epa.gov/ttnchie1/ap42/ch05/final/

c05s03.pdf. 

71 In the Federal Indian Country Minor NSR rule, 

EPA established a registration program that 

required owners/operators of existing true minor 

sources to file a one-time registration with the 

appropriate Reviewing Authority by March 1, 2013. 

The EPA’s Region 8 Office has received about 6,300 

registrations from true minor sources in the oil and 

natural gas sector. This far exceeded the amount 

received from sources in any other category. 

so. One commenter recommended that 

the FIP require all external combustion 

units to control NOX emissions with 

SNCR, SCR, or a combination of SCR 

plus low NOX burners. 

Response #37: The proposed FIP 

incorporates control requirements for 

internal and external combustion units 

in accordance with 40 CFR part 63, 

subpart DDDDD (National Emission 

Standards for Hazardous Air Pollutants 

for Major Sources: Industrial, 

Commercial, and Institutional Boilers 

and Process Heaters); 40 CFR part 63, 

subpart ZZZZ (National Emissions 

Standards for Hazardous Air Pollutants 

for Stationary Reciprocating Internal 

Combustion Engines); 40 CFR part 60, 

subpart IIII (Standards of Performance 

for Stationary Compression Ignition 

Internal Combustion Engines); 40 CFR 

part 60, subpart JJJJ (Standards of 

Performance for Stationary Spark 

Ignition Internal Combustion Engines); 

and 40 CFR part 60, subpart KKKK 

(Standards of Performance for New 

Stationary Combustion Turbines). In the 

development of the FIP, we have relied 

on the analysis conducted in the 

development of these existing rules to 

determine adequate control technology 

requirements for these types of sources. 

The FIP only applies to new true minor 

sources and modifications at existing 

true minor sources thus does not 

address the control of emissions from 

existing source. 

J. Pollutants Included in the Proposed 

FIP 

1. Proposed Rule 

In the preamble to the proposed rule, 

we indicated that the pollutants emitted 

from the activities regulated through the 

proposed Federal Indian Country Minor 

NSR rule (regulated NSR pollutants) 

include: VOC, NOX, SO2, PM, PM10, 

PM2.5, H2S, CO and various sulfur 

compounds. Hydrogen sulfide and SO2

are emitted from production and 

processing operations that handle and 

treat sour gas.70

2. Final Action 

In the final FIP, there is no change in 

the pollutants covered. 

3. Comments and Responses 

The following discussion contains 

comments related to the pollutants 

included in the proposed FIP and our 

responses. The comments and responses 

are also addressed in Section 6.0 of the 

RTC Document. 

Comment #38: One commenter 

recommended that the EPA expand the 

pollutants regulated in the proposed FIP 

to include methane. The commenter 

noted that, in the proposed FIP, the EPA 

states that it will include the 

requirements of the proposed, amended 

40 CFR part 60, subpart OOOOa, in the 

FIP. The commenter stated that adding 

methane to the list of pollutants covered 

by the rule would provide operators and 

tribes with certainty that the parts of the 

NSPS rule governing methane emissions 

also apply in Indian country. 

Response #38: The Federal Indian 

Country Minor NSR rule does not 

regulate GHGs, which include methane. 

The FIP is implementing the Federal 

Indian Country Minor NSR rule for the 

oil and natural gas sector, and, 

therefore, does not regulate GHGs. 

However, it is worth noting that, while 

the rule does not directly regulate 

methane, any controls that effectively 

control VOC emissions will also control 

methane emissions. In addition, in the 

event that subpart OOOOa as adopted 

requires control of methane, methane 

emissions will be reduced. No change 

has been made as a result of this 

comment. 

K. Exclusion of Existing Sources From 

the Proposed Oil and Natural Gas FIP 

1. Proposed Rule 

In the proposed rule, the EPA 

indicated that, while the Federal Indian 

Country Minor NSR rule only addresses 

new and modified sources, including 

such sources in the oil and natural gas 

sector, the EPA believes that managing 

emissions from existing oil and natural 

gas sources in some areas of Indian 

country also may be important. This is 

because of the significant emissions 

associated with existing activity in the 

oil and natural gas sector in some areas 

of Indian country and the resultant need 

to protect public health and the 

environment. Addressing existing 

sources through a FIP could be useful in 

areas of Indian country for which 

surrounding state requirements apply to 

existing oil and natural gas sources 

located on lands that are within a state’s 

jurisdiction. In doing so, EPA would 

consider tribes’ views and interests, 

including any interest in promoting 

economic development. 

While EPA believes that it has the 

necessary authority to promulgate a FIP 

regulating existing sources should it 

determine that it is necessary or 

appropriate to do so, in the September 

2015 action, we proposed that the FIP 

only apply to new and modified true 

minor sources in the production 

segment of the oil and natural gas 

sector. In the proposed rule, we 

indicated that the proposed FIP for new 

and modified true minor sources in the 

oil and natural gas production segment 

locating or located in Indian 

reservations (and other areas of Indian 

country over which an Indian tribe, or 

the EPA, has demonstrated that the tribe 

has jurisdiction) would apply to all such 

areas designated attainment, attainment/ 

unclassifiable, or unclassifiable. It 

would not apply to any areas designated 

nonattainment. The Federal Indian 

Country Minor NSR rule allows us to 

manage minor source emission 

increases in Indian country and to 

ensure that new source emissions do not 

cause or contribute to a NAAQS or PSD 

increment violation. We are concerned 

that the rapid growth of the oil and 

natural gas production segment, in 

combination with existing exploration 

and production activities, could result, 

or in some cases already has resulted, in 

adverse air quality impacts, especially 

in light of the approximately 6,300 

existing true minor source registrations 

received in the EPA Region 8 Office for 

facilities in the oil and natural gas 

sector.71 However, we believe that the 

most appropriate means for addressing 

impacts from existing sources is through 

area- or reservation-specific FIPs and 

not through a national FIP. If we 

determine that it is ‘‘necessary or 

appropriate’’ to exercise our 

discretionary authority under sections 

301(a) and 301(d)(4) of the CAA and 40 

CFR 49.11(a) of our implementing 

regulations, we will publish a proposed 

area- or reservation-specific FIP that 

provides an opportunity for full public 

review and comment. At a minimum, 

the EPA or tribes will need to develop 

area-specific plans if and when areas of 

Indian country become nonattainment 

for ozone or other NAAQS pollutants. 

At that time, any such area that has oil 

and natural gas minor source activity 

may require additional controls on 

existing (and new and modified) sources 

in order to achieve attainment of the 

NAAQS. One source of information for 

control options will be the EPA’s 

control techniques guidelines (CTGs) for 

oil and natural gas activity that the EPA 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35973 

72For more information, go to: https://

www3.epa.gov/airquality/oilandgas/index.html. 

73Bakken Pool means oil produced from the 

Bakken, Three Forks, and Sanish formations. 

74See, e.g., L. Gribovicz, WRAP, ‘‘Analysis of 

States’ and EPA Oil and Gas Air Emissions Control 

Requirements for Oil and Gas Emissions Control 

Requirements for Selected Basins in the Western 

United States (2013 Update),’’ Nov. 8, 2013, 

available at http://www.wrapair2.org/pdf/2013-11x_

O&G%20Analysis%20 

(master%20w%20State%20Changes%2011-08).pdf. 

75See Colorado Dept. of Public Health and 

Environment, Air Quality Control Commission Web 

site at http://www.colorado.gov/cs/Satellite/CDPHEAQCC/CBON/1251647985820. 

76See ‘‘Lessons Learned from Natural Gas STAR 

Partners; Installing Vapor Recovery Units on 

Storage Tanks,’’ available at http://epa.gov/gasstar/ 

documents/ll_final_vap.pdf on the EPA’s Natural 

Gas Star Web site: http://epa.gov/gasstar/

index.html. 

77 ‘‘Review of New Sources and Modifications in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 71 FR 48696, August 21, 2006, https://

www.gpo.gov/fdsys/pkg/FR-2006-08-21/pdf/06- 

6926.pdf. 

78For more information, go to: http://

www3.epa.gov/airquality/oilandgas/methane.html. 

has made available for comment and 

will finalize in 2016.72

We believe that existing sources are 

best addressed through tailored, federal 

or tribal air quality plans because each 

basin producing oil and/or natural gas 

possesses different geological and 

meteorological characteristics and, thus, 

the primary fossil fuel resource 

extracted can be very different in quality 

and type and the impacts from 

emissions associated with extraction 

activities can vary widely. For example, 

the predominant resource extracted 

from the Bakken Pool 73 is a light, 

volatile oil, while the primary resource 

extracted from the Uintah Basin is a 

heavy, thick oil. Each of these types, in 

many cases, call for different sets of 

control requirements that are best 

addressed through tailored plans versus 

a national FIP. 

We believe that through tailored plans 

a number of cost-effective emission 

reduction measures could be applied to 

existing emission units to balance new 

growth by mitigating the potential for 

adverse air quality impacts from overall 

increases in emissions. A number of 

state air pollution control agencies 

already regulate some existing 

emissions from this segment.74 For 

example, in February 2014, Colorado 

adopted additional regulations for oil 

and natural gas production operations 

that include such requirements as 

expanding nonattainment area 

pneumatic controller requirements 

statewide and reducing venting and 

flaring of gas streams at well sites, 

among other control strategies.75 In 

addition, these regulations determined 

leak detection and repair monitoring to 

be cost effective at oil and natural gas 

production facilities. Some technologies 

may even provide the industry with cost 

savings due to recovered product. For 

example, the EPA’s Natural Gas Star 

program estimates that adding a vapor 

recovery unit to a storage tank could pay 

for itself in 3 to 37 months, and 

thereafter result in cost savings.76

2. Final Action 

The final FIP does not address 

existing oil and natural gas sources. As 

we discussed in our proposal, this FIP 

is used in lieu of source-specific permits 

to fulfill our requirement under the 

Federal Indian Country Minor NSR rule 

to issue pre-construction permits to new 

and modified sources. Further, when we 

proposed the Federal Indian Country 

Minor NSR rule on August 21, 2006, we 

asked for comment on how to address 

existing sources and we presented four 

options.77 Of the proposed options, in 

response to comments, we chose to 

require that existing sources have to 

register with their Reviewing Authority, 

including the submittal of emissions 

data, with no additional requirements, 

unless they modify the existing source. 

While one of the options presented was 

not to include any requirements for 

existing sources, and would have been 

more consistent with state minor NSR 

programs, we stated that collecting 

source emissions data was necessary to 

successfully implement the minor 

source program. We still believe that to 

be the case today and that an areaspecific FIP is the most appropriate way 

to address emissions from existing 

sources. 

In addition, we are indicating in this 

final action that in the future (subject to 

notice and comment) the requirements 

of this FIP may be extended to certain 

areas designated nonattainment for 

which the EPA has issued an areaspecific FIP. This possible, future 

extension of coverage of this FIP could 

provide a mechanism for the EPA to 

provide streamlined permitting in 

nonattainment areas where we have 

addressed existing sources, providing 

air quality protection and a way to allow 

continued oil and natural gas growth in 

Indian country where it represents an 

important source of tribal government 

revenue. So, while we are not regulating 

existing sources in this action, we do 

believe that existing sources will need 

to be addressed before new and 

modified emissions can occur in 

nonattainment areas. 

Finally, on March 10, 2016, the 

Obama Administration and the EPA 

announced the next step in reducing 

emissions of methane from the oil and 

natural gas industry: Moving to regulate 

emissions from existing sources. The 

agency is beginning with a formal 

process to require companies operating 

existing oil and natural gas sources to 

provide information to assist in the 

development of comprehensive 

regulations to reduce methane 

emissions.78

3. Comments and Responses 

The following discussion contains 

comments related to the exclusion of 

existing sources from the proposed FIP 

and our responses. The comments and 

responses are also addressed in Section 

7.0 of the RTC Document. 

Comment #39: Several commenters 

submitted comments on the subject of 

regulating existing sources in the 

proposed FIP. Three commenters 

recommended that the EPA regulate 

existing sources; one commenter 

recommended that the EPA create a 

voluntary process for existing sources to 

register and to be regulated under the 

FIP; three commenters agreed with the 

EPA’s position not to regulate existing 

sources; and one commenter 

recommended that the EPA regulate 

existing sources only in the context of 

area-specific rules. One of the 

commenters favoring the regulation of 

existing sources noted that there is 

substantial evidence demonstrating that 

existing oil and natural gas sources are 

responsible for considerable air 

pollution emissions within Indian 

country, and that a FIP is the only 

method by which the EPA may regulate 

existing sources. This commenter 

further noted that many areas of Indian 

country are already in nonattainment 

despite the six regulations already in 

place, and that it might be necessary for 

the EPA to regulate existing sources in 

other areas in order to prevent them 

from slipping into nonattainment. One 

of the commenters recommended that 

the EPA develop an approach for 

regulating existing true minor source oil 

and natural gas facilities in Indian 

country apart from the Proposed Rule 

that not only takes into account those 

parts of Indian country where the EPA 

finds an area- or reservation FIP is 

necessary for existing sources, but 

addresses existing sources throughout 

all of Indian country. Such an approach 

could include the use of FIPs, general 

permits, or permits by rule. 

The three commenters requesting that 

the EPA not regulate existing sources 

recommended that regulation of existing 

sources should be addressed in the 

context of area-specific rulemakings, 

developed on a regional basis in a way 

that reflects local air quality 

characteristics, current air quality data, 

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35974 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

79 ‘‘Oil and Natural Gas Sector: Emission 

Standards for New and Modified Sources in the Oil 

and Natural Gas Sector,’’ U.S., Environmental 

Protection Agency, 80 FR 56593, September 18, 

2015, https://www.gpo.gov/fdsys/pkg/FR-2015-09- 

18/pdf/2015-21023.pdf. 

80 ‘‘Oil and Natural Gas Sector: Emission 

Standards for New, Reconstructed and Modified 

Sources,’’ signed May 12, 2016, http://

www.epa.gov/airquality/oilandgas/actions.html. 

and emissions inventories. One of the 

commenters requesting that the EPA 

address existing sources in the context 

of area-specific rulemakings suggested 

that not all existing minor sources 

should be regulated in the same manner; 

the EPA should target those sources 

most directly contributing to air quality 

degradation. This commenter further 

recommended that, should the EPA 

choose to regulate existing sources, the 

EPA should apply control requirements 

to existing source emissions in a flexible 

manner, gradually increasing 

enforcement as appropriate. 

Response #39: The purpose of the 

proposed FIP was to address preconstruction permitting for new and 

modified true minor sources locating or 

located in reservation areas of Indian 

country and other areas of Indian 

country over which a tribe has 

jurisdiction in order to satisfy the 

requirements of the Federal Indian 

Country Minor NSR rule. We chose this 

approach both because of our concern 

that the number of applications for 

source-specific permits from true minor 

sources in the oil and natural gas sector 

would overwhelm the available 

resources of the Reviewing Authority 

and to provide consistency in the 

regulation of such sources throughout 

the areas where the Federal Indian 

Country Minor NSR rule is in effect. The 

proposed FIP does not address existing 

sources, unless they undergo 

modification. We see no reason to 

change that in the final FIP. Rather, as 

discussed above, we believe the best 

way to address emissions from existing 

sources is through a reservation- or areaspecific FIP if and when we determine 

that one is necessary or appropriate to 

protect air quality. In addition to 

satisfying the requirements of the 

Federal Indian Country Minor NSR rule, 

we believe that the final FIP addressing 

only new and modified true minor 

sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector is sufficient to protect air quality 

in all of the areas to which it applies 

regardless of the current level of oil and 

natural gas production and natural gas 

processing activities in any particular 

area. The exception to this statement is 

the Uintah and Ouray Reservation in 

Utah. For the Uintah and Ouray 

Reservation, we have sufficient 

concerns with the impact of emissions 

from existing sources that we plan to 

propose a separate reservation-specific 

FIP addressing such sources. Similarly, 

we will consider promulgating such 

reservation- or area-specific FIPs in the 

future as we believe necessary or 

appropriate to protect air quality. 

Comment #40: One commenter 

recommended that specific existing oil 

and natural gas production equipment 

be regulated under the proposed FIP, 

including: Reciprocating compressors, 

centrifugal compressors, liquids 

unloading at existing wells, glycol 

dehydrators, liquid storage vessels, and 

pneumatic controllers. 

The commenter recommended that 

the EPA require: (1) The replacement of 

the rod packing of existing reciprocating 

compressors every 36 months or 26,000 

hours of operation; (2) replacement of 

wet seal configurations on centrifugal 

compressors with one that utilizes dry 

seals or that captures the emissions from 

the oil degassing unit; (3) that plunger 

lifts be required for all liquids 

unloading; (4) that dehydrators control 

VOC by 95 percent with a condenser; (5) 

that storage vessels capture VOC 

emissions via a closed vent system and 

route those emissions to a beneficial 

use; and (6) that high bleed pneumatic 

controllers be replaced with low-bleed 

controllers except when technically 

necessary. 

Response #40: As stated above, the 

purpose of the FIP, as proposed and as 

finalized herein, is to satisfy the 

requirements of the Federal Indian 

Country Minor NSR rule, and not to 

regulate existing sources. 

Comment #41: One commenter 

recommended that the proposed FIP be 

revised to require regular Leak Detection 

and Repair (LDAR) surveys at all new 

and existing facilities, including well 

pads, other production facilities, 

gathering compressor stations, and 

natural gas processing plants that are 

not covered under 40 CFR part 60, 

subparts KKK and OOOO. This 

commenter recommended that 

instrument-based LDAR surveys be 

carried out quarterly on all sources in 

the production segment and that 

auditory, visual, and olfactory 

inspections should be performed 

monthly. 

Response #41: The EPA proposed to 

add LDAR requirements for well sites 

and compressor stations, including 

gathering and boosting stations, to 40 

CFR part 60, subpart OOOOa, rule in 

September 2015.79 As those 

requirements have been incorporated 

into the final subpart OOOOa 

regulation 80—and, thus, the FIP—any 

LDAR requirements finalized under 40 

CFR part 60, subpart OOOOa, are part 

of the FIP. Thus, new and modified true 

minor sources subject to the FIP will be 

required to comply with certain LDAR 

requirements. As noted in response to 

Comments #39 and #40, and for the 

reasons stated therein, we did not 

propose to regulate existing sources 

under the FIP, and the final FIP does not 

regulate existing sources. 

L. General Comments (e.g., 

Administrative, Incorporation by 

Reference) 

1. Proposed Rule 

The proposed FIP proposed to require 

that owners/operators of oil and natural 

gas production facilities comply with 

six federal rules, as applicable, to 

reduce emissions of certain pollutants 

from certain equipment and processes 

present at oil and natural gas sources. 

For purposes of the proposed FIP, we 

proposed that compliance with these 

rules would effectively satisfy the NSR 

permitting requirement. Therefore, we 

proposed that true minor oil and natural 

gas sources subject to these applicable 

standards would have to comply with 

these standards as they currently exist 

and as they may be amended in the 

future, except for those provisions that 

we specifically excluded. (The proposed 

FIP would not have changed the 

applicability of the specified standards, 

nor would it have relieved sources 

subject to the standards from having to 

comply with them, independently of the 

proposed FIP.) 

2. Final Action 

In the final FIP, we are using the same 

approach that we proposed: To satisfy 

the FIP, sources must comply with the 

requirements of the six federal 

standards (and two other standards, 

which are being added in response to 

comments), to the extent that they 

apply, as they exist at the time 

construction begins. 

3. Comments and Responses 

The following discussion contains 

comments related to general comments 

and our responses. The comments and 

responses are also addressed in Section 

8.0 of the RTC Document. 

Comment #42: One commenter noted 

that the proposed language for § 49.105 

requires that oil and natural gas sources 

using the FIP registration process 

comply with six specific federal NSPS 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35975 

81 40 CFR part 60, subpart Kb: Standards of 

Performance for Volatile Organic Liquid Storage 

Vessels (Including Petroleum Liquid Storage 

Vessels) for Which Construction, Reconstruction, or 

Modification Commenced After July 23, 1984 (OMB 

Control No. 2060–0074); 40 CFR part 60, subpart 

IIII: Standards of Performance for Stationary 

Compression Ignition Internal Combustion Engines 

(OMB Control No. 2060–0590); 40 CFR part 60, 

subpart JJJJ: Standards of Performance for Stationary 

Spark Ignition Internal Combustion Engines (OMB 

Control No. 2060–0610); 40 CFR part 60, subpart 

OOOOa: Standards of Performance for Crude Oil 

and Natural Gas Facilities for which Construction, 

Modification, or Reconstruction Commenced after 

September 18, 2015 (OMB Control No. 2060–0673); 

40 CFR part 63, subpart DDDDD: National Emission 

Standards for Hazardous Air Pollutants for Major 

Sources: Industrial, Commercial, and Institutional 

Boilers and Process Heaters (OMB Control No. 

2060–0616); 40 CFR part 63, subpart HH: National 

Emission Standards for Hazardous Air Pollutants 

from Oil and Natural Gas Production Facilities 

(OMB Control No. 2060–0417); 40 CFR part 63, 

subpart ZZZZ: National Emission Standards for 

Hazardous Air Pollutants for Stationary 

Reciprocating Internal Combustion Engines (OMB 

Control No. 2060–0548); and 40 CFR part 60, 

subpart KKKK: Standards of Performance for New 

Continued 

and NESHAP regulations. The 

commenter stated that ‘‘The proposed 

rule appears to make an ‘‘evergreen’’ 

incorporation by reference—i.e., 

whenever the oil and natural gas FIP is 

invoked, the rule appears to require 

application of the then-current version 

of each incorporated regulation.’’ The 

commenter stated that it is beyond the 

EPA’s authority to make an evergreen 

incorporation by reference because any 

amendment of the incorporated rules 

would result in an amendment to the oil 

and natural gas FIP, which effectively 

would be accomplished without notice 

and comment rulemaking for the FIP. 

The commenter recommended that the 

EPA incorporate into the oil and natural 

gas FIP the rules as they stand at the 

time the FIP is promulgated, noting that 

the FIP can easily be amended later if 

significant changes are made to the 

underlying rules. The commenter 

recommended that the text of § 49.105 

be revised to directly incorporate by 

reference each of the six rules. 

Response #42: The EPA notes that, 

under 1 CFR part 51, it cannot 

incorporate other regulations by 

references. It believes the proposed 

approach to including the NSPS and 

NESHAP standards in the FIP is the 

most efficient method of maintaining 

consistency with the applicable 

standards. Having to amend the FIP 

every time a standard is changed would 

be burdensome and create ambiguity for 

sources. We disagree that we lack the 

authority to adopt this approach 

through notice and comment 

rulemaking. While some of the 

requirements with which sources must 

comply may change over time, this does 

not result in a de facto amendment of 

the FIP. Rather, the FIP at all times 

requires compliance with the eight other 

rules, to the extent that they apply. Even 

in the absence of the FIP, sources 

subject to any of the eight other rules 

would be required to comply with those 

standards as they exist at the time the 

source begins construction. The public 

will have ample opportunity to 

comment on any proposed changes to 

the standards themselves. No changes 

have been made as a result of this 

comment. 

Comment #43: One commenter noted 

that there is a typographical error in the 

reference to the proposed 40 CFR part 

60, subpart OOOOa, standard; the word 

‘‘applicable’’ should be included, as it is 

in the references to the other five 

regulations. 

Response #43: The EPA has corrected 

the error in the final rule. 

M. Other Comments 

The following discussion contains 

comments that did not fall into another 

section and were not covered by the 

proposal but merit a response. The 

comments and responses are also 

addressed in Section 9.0 of the RTC 

Document. 

Comment #44: One commenter stated 

that the final rule should not implement 

a setback requirement. The commenter 

stated that including a setback 

requirement undermines tribal 

sovereignty, contravenes explicit 

requirements embodied in existing 

Indian mineral leases, and is contrary to 

existing BIA regulations. The 

commenter also noted that the EPA 

cannot exceed the authority granted by 

Congress. The commenter characterized 

setback requirements as unnecessary 

regulations, stating that the tribes can 

determine the appropriate setback 

distance. 

Response #44: There was no setback 

requirement in the proposed FIP, and 

the EPA is not adding a setback 

requirement in the final rule. No 

changes have been made as a result of 

this comment. 

Comment #45: Two commenters 

submitted comments on whether state 

requirements should be the basis for the 

FIP requirements. One commenter 

recommended that, if the EPA chooses 

not to regulate existing sources 

throughout Indian country, then the 

EPA should at least regulate existing 

sources located in states that already do 

so. The commenter noted that putting 

state and tribal lands on a level playing 

field will protect the health of tribal 

members. The commenter also noted 

that, in order to comply with the 

requirements of Executive Order 12898, 

the EPA should regulate existing 

sources on tribal lands that are located 

within states that already regulate 

existing sources. Another commenter 

stated that it is not appropriate to apply 

state regulations to Indian country. 

Reservation- or region-specific FIPs 

should be developed that address tribes’ 

concerns and the unique characteristics 

of the regions or reservations at issue. 

Response #45: As discussed above, 

and for the reasons stated, the FIP does 

not regulate existing sources. Further, a 

mere desire to ‘‘level the playing field’’ 

is not a sufficient, sole basis for 

imposing requlatory requirements on oil 

and natural gas source owners/

operators. Rather, the EPA would need 

to determine that the state law 

requirements in question were 

necessary or appropriate. No changes 

have been made as a result of this 

comment. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was, therefore, not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA. OMB has previously approved the 

information collection activities 

contained in the Federal Indian Country 

Minor NSR rule and has assigned OMB 

control number 2060–0003. This action 

establishes a FIP which serves as a 

mechanism for true minor sources in the 

oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector locating or 

located in areas covered by the Federal 

Indian Country Minor NSR rule to 

satisfy the requirements of that rule 

other than by obtaining a source-specific 

minor source permit. Because it 

substitutes for a source-specific permit, 

which would contain information 

collection activities covered by the 

Information Collection Request for 

Federal Indian Country Minor NSR rule 

issued in July 2011, it does not impose 

any new obligations or enforceable 

duties on any state, local or tribal 

government or the private sector. In 

addition, the information collection 

activities contained in the eight rules 

that are referenced in this FIP have also 

been previously approved by OMB.81

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35976 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

Stationary Combustion Turbines (OMB Control No. 

2060–0582). 

82 ‘‘Review of New Sources and Modifications in 

Indian Country,’’ U.S. Environmental Protection 

Agency, 76 FR 38748, July 1, 2011, https://

www.federalregister.gov/articles/2011/07/01/2011- 

14981/review-of-new-sources-and-modifications-inindian-country. 

83For more information, go to: https://

www.epa.gov/tribal/epa-policy-consultation-andcoordination-indian-tribes. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. An agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden or otherwise has a 

positive economic effect on the small 

entities subject to the rule. The EPA 

analyzed the impact on small entities of 

streamlined permitting under the 

Federal Indian Country Minor NSR 

rule 82 and determined that it would not 

have a significant economic impact on 

a substantial number of small entities. 

(By allowing sources to avoid having to 

obtain source-specific permits, this FIP 

also relieves regulatory burden.) This 

action merely implements a particular 

aspect of the Federal Indian Country 

Minor NSR rule. We have, therefore, 

concluded that this action will have no 

net regulatory burden for all directly 

regulated small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandates, as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal government or the private sector. 

It simply provides one option for 

sources to comply with the Federal 

Indian Country Minor NSR rule. The 

Federal Indian Country Minor NSR rule 

itself, not this FIP, imposes the 

obligation that true minor sources in 

areas covered by the Federal Indian 

Country Minor NSR rule obtain a minor 

source NSR permit prior to commencing 

construction. This FIP merely provides 

a streamlined mechanism for meeting 

that obligation. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It would not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action has tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

federally recognized tribal governments, 

nor preempt tribal law. The EPA 

conducted outreach on this rule via 

ongoing monthly meetings with tribal 

environmental professionals in the 

development of the proposed action. 

This action reflects tribal comments on, 

and priorities for, developing a 

streamlined approach for permitting 

true minor sources in the oil and natural 

gas sector in areas covered by the 

Federal Indian Country Minor NSR rule. 

Consistent with the EPA Policy on 

Consultation and Coordination with 

Indian Tribes (May 4, 2011),83 the EPA 

offered consultation on the proposed 

FIP to elected tribal officials, but no 

tribe requested a consultation. 

One tribal commenter did raise 

concerns about consultation in their 

written comments. The commenter 

recommended that, in order to develop 

an effective and equitable FIP, the EPA 

should first consult with the Ute Indian 

Tribe so that the Tribe can offer its 

expertise, experience, and input into 

developing the FIP. The commenter 

stated that the EPA should not attempt 

to revise the definition of Indian 

country. The Ute Indian Tribe requested 

that the EPA engage the Tribe in 

additional government-to-government 

consultation once the EPA has reviewed 

comments on the proposed rule and is 

prepared to discuss those comments and 

any changes to the proposed rule. After 

the comment period for this rulemaking 

closed in December, we followed up on 

the Ute Indian Tribe’s request and it was 

determined that the requested 

consultation was no longer necessary. 

The EPA agrees with the commenter 

that consultation with affected tribes is 

important to development of a 

successful FIP. The EPA remains 

available to consult with tribes in 

regards to issues that affect them, or 

proactively in connection with tribal 

efforts to develop a TIP. The EPA has 

reached out to tribes during the 

development of this FIP. The EPA notes 

that the Mandan, Hidatsa, and Arikara 

Nation expressed an interest in working 

with us to develop this FIP, although 

the Tribe did not submit comments on 

the proposed FIP. 

We have made changes to the FIP 

proposal as a result of tribal comments. 

Most notably, at the request of a tribal 

commenter, we have clarified that we 

are not changing the definition of Indian 

country. Instead, we are clarifying the 

geographic applicability of the FIP with 

respect to areas of Indian country. 

As the FIP is implemented, we will 

continue to provide regular outreach to 

tribes to ensure we address issues 

concerning the FIP if and when they 

arise. The EPA is always available for 

consultation with any interested tribe. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

EO 12866, and because the EPA does 

not believe the environmental health or 

safety risks addressed by this action 

present a disproportionate risk to 

children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This action does not involve technical 

standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. This rule implements 

certain aspects of the Federal Indian 

Country Minor NSR rule. 

Our primary goal in developing this 

FIP is to ensure that air resources in 

areas covered by the Federal Indian 

Country Minor NSR rule will be 

protected in the manner intended by the 

CAA. This action will help ensure air 

quality protection in areas covered by 

the Federal Indian Country Minor NSR 

rule, by including in a FIP a 

comprehensive set of control 

requirements for new and modified true 

minor source in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector. In addition, through this FIP, we 

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seek to establish a mechanism that 

provides an effective and efficient 

method for implementing a preconstruction permitting program for true 

minor sources in the oil and natural gas 

sector in areas covered by the Federal 

Indian Country Minor NSR rule. Under 

this rule we are finalizing an approach 

that enables a streamlined process, 

which helps promote economic 

development by minimizing delays in 

new construction; and provides a 

process comparable to those programs 

operated outside of Indian county, 

which helps tribes compete for new oil 

and natural gas production and natural 

gas processing in areas covered by the 

Federal Indian Country Minor NSR rule. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 49 

Environmental protection, 

Administrative practices and 

procedures, Air pollution control, 

Indians, Indians-law, Indians-tribal 

government, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

Dated: May 12, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons set forth in the 

preamble, 40 CFR part 49 is amended as 

follows: 

PART 49—INDIAN COUNTRY: AIR 

QUALITY PLANNING AND 

MANAGEMENT 

■ 1. The authority citation for part 49 

continues to read as follows: 

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

Subpart C—General Federal 

Implementation Plan Provisions 

■ 2. Subpart C of part 49 is amended by 

adding an undesignated center heading 

and §§ 49.101 through 49.105 to read as 

follows: 

Federal Implementation Plan for 

Managing Air Emissions From True 

Minor Sources in Indian Country in the 

Oil and Natural Gas Production and 

Natural Gas Processing Segments of the 

Oil and Natural Gas Sector 

§ 49.101 Introduction. 

(a) What is the purpose of §§ 49.101 

through 49.105? Sections 49.101 

through 49.105 adopt legally and 

practicably enforceable requirements to 

control and reduce emissions of volatile 

organic compounds, nitrogen oxides, 

sulfur dioxide, particulate matter (PM, 

PM10, PM2.5), hydrogen sulfide, carbon 

monoxide and various sulfur 

compounds from new and modified true 

minor sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector. 

(b) Am I subject to §§ 49.101 through 

49.105? You are subject to the 

requirements if you: 

(1) Own or operate a new true minor 

oil and natural gas source or an existing 

true minor oil and natural gas source 

undergoing modification as determined 

pursuant to § 49.153(a) that meets the 

criteria specified in paragraphs (b)(1)(i) 

through (v) of this section. Then you 

shall comply with the requirements of 

§§ 49.104 and 49.105, unless you obtain 

a source-specific permit as specified in 

paragraph (b)(2) or (3) of this section. 

(i) The source is an oil and natural gas 

source as defined in § 49.102; 

(ii) The oil and natural gas source as 

defined in § 49.102 is located in Indian 

country as defined in § 49.152(d), 

within the geographic scope of the 

Federal Minor New Source Review 

Program in Indian Country, as specified 

in § 49.102; 

(iii) The oil and natural gas source as 

defined in § 49.102 is a new true minor 

source or a minor modification of an 

existing true minor source, as 

determined under § 49.153; 

(iv) The oil and natural gas source as 

defined in § 49.102 begins construction 

or modification on or after October 3, 

2016; and 

(v) The oil and natural gas source as 

defined in § 49.102 is not located in a 

designated nonattainment area. 

(2) Owners/operators of sources that 

meet the criteria specified in paragraph 

(b)(1) of this section that choose to 

obtain a source-specific permit as 

specified in § 49.155 before beginning 

construction are not required to comply 

with the requirements of §§ 49.101 

through 49.105. 

(3) Owners/operators of sources that 

meet the criteria specified in paragraph 

(b)(1) of this section that the Reviewing 

Authority requires to obtain a sourcespecific permit to ensure protection of 

the National Ambient Air Quality 

Standards as specified in § 49.155 before 

beginning construction are not required 

to comply with §§ 49.101 through 

49.105. 

(c) When must I comply with 

§§ 49.101 through 49.105? You must 

comply with §§ 49.101 through 49.101 

on or after October 3, 2016. 

(d) This Federal Implementation Plan 

(FIP) does not apply to minor 

modifications at major sources. 

§ 49.102 Definitions. 

As used in §§ 49.101 through 49.105, 

all terms not defined herein shall have 

the meaning given them in the Clean Air 

Act, in subparts A and OOOOa of 40 

CFR part 60, in the Prevention of 

Significant Deterioration regulations at 

40 CFR 52.21, or in the Federal Minor 

New Source Review Program in Indian 

Country at § 49.152. The following 

terms shall have the specific meanings 

given them: 

Oil and natural gas source means a 

stationary source engaged in the 

extraction and production of oil and 

natural gas and/or the processing of 

natural gas, including the wells and all 

related processes used in the extraction, 

production, recovery, lifting, 

stabilization, and separation or 

treatment of oil, water, and/or natural 

gas (including condensate). Oil and 

natural gas production and processing 

components may include, but are not 

limited to: Wells and related casing 

head; tubing head and ‘‘Christmas tree’’ 

piping; pumps; compressors; heater 

treaters; separators; storage vessels; 

pneumatic devices; stationary engines; 

natural gas sweetening; truck loading; 

dewpoint suppression skids; natural gas 

dehydrators; completion and workover 

processes; gathering pipelines and 

related components that collect and 

transport the oil, natural gas and other 

materials and wastes from the wells or 

well pads; and natural gas processing 

plants. 

Oil and natural gas well means a 

single well that extracts subsurface 

reservoir fluids containing a mixture of 

oil and/or natural gas, and water. 

Owner/operator means any person 

who owns, leases, operates, controls, or 

supervises an oil and natural gas source. 

Regional Administrator means the 

Regional Administrator of an EPA 

Region or an authorized representative 

of the Regional Administrator. 

§ 49.103 Delegation of authority of 

administration to Indian tribes. 

(a) What is the purpose of this 

section? The purpose of this section is 

to establish the process by which a 

Regional Administrator may delegate to 

a federally-recognized tribe the 

authority to assist the EPA with 

administration of this FIP (§§ 49.101 

through 49.105). This section provides 

for administrative delegation and does 

not affect the eligibility criteria under 

§ 49.6 for treatment in the same manner 

as a state or a tribe’s ability to obtain 

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35978 Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 

approval of a tribal implementation plan 

under § 49.7. 

(b) How does a tribe request 

delegation? In order to be delegated 

authority to assist us with 

administration of this FIP, the 

authorized representative of a federallyrecognized tribe must submit a request 

to a Regional Administrator that: 

(1) Identifies the specific provisions 

for which delegation is requested; 

(2) Identifies the Indian Reservation 

or other affected areas of Indian country 

for which delegation is requested; 

(3) Includes a statement by the 

applicant’s legal counsel (or equivalent 

official) that includes the following: 

(i) A statement that the applicant is a 

tribe recognized by the Secretary of the 

Interior; 

(ii) A descriptive statement that is 

consistent with the type of information 

described in § 49.7(a)(2) demonstrating 

that the applicant is currently carrying 

out substantial governmental duties and 

powers over a defined area; 

(iii) A description of the laws of the 

tribe that provide adequate authority to 

administer the Federal rules and 

provisions for which delegation is 

requested; and 

(iv) A demonstration that the tribal 

agency that will be responsible for 

administration has the technical 

capability and adequate resources to 

administer the FIP provisions for which 

delegation is requested. 

(c) How is the delegation of 

administrative authority accomplished? 

(1) A Delegation of Authority Agreement 

will set forth the terms and conditions 

of the administrative delegation, will 

specify the rule and provisions that the 

tribe shall be authorized to implement 

on behalf of the EPA, and shall be 

entered into by the Regional 

Administrator and the tribe. The 

Agreement will become effective upon 

the date that both the Regional 

Administrator and the authorized 

representative of the tribe have signed 

the Agreement. Once the delegation 

becomes effective, the tribe will be 

responsible, to the extent specified in 

the Agreement, for assisting us with 

administration of this FIP and shall act 

as the Regional Administrator as that 

term is used in these regulations. Any 

Delegation of Authority Agreement will 

clarify the circumstances in which the 

term ‘‘Regional Administrator’’ found 

throughout this FIP is to refer only to 

the EPA Regional Administrator and 

when it is intended instead to refer to 

the EPA Regional Administrator or a 

federally-recognized tribe. 

(2) A Delegation of Authority 

Agreement may be modified, amended, 

or revoked, in part or in whole, by the 

Regional Administrator after 

consultation with a tribe. 

(d) How will any Delegation of 

Authority Agreement be publicized? The 

Regional Administrator shall publish a 

notice in the Federal Register informing 

the public of any Delegation of 

Authority Agreement with a tribe to 

assist us with administration of all or a 

portion of this FIP and will identify 

such delegation in the Code of Federal 

Regulations. The Regional 

Administrator shall also publish an 

announcement of the Delegation of 

Authority Agreement in local 

newspapers. 

§ 49.104 Requirements regarding 

threatened or endangered species and 

historic properties. 

(a) What are sources required to do to 

address threatened or endangered 

species and historic properties? An 

owner/operator subject to the 

requirements contained in §§ 49.101 

through 49.105 to satisfy its obligation 

under § 49.151(c)(1)(iii)(B) to obtain a 

minor NSR permit shall meet either 

paragraph (c)(1) or (2) of this section, as 

appropriate. 

(1) Prior completion of assessment by 

another federal agency. The owner/

operator shall submit to the EPA 

Regional Office (and to the relevant tribe 

for the area where the source is located/ 

locating) valid documentation 

demonstrating that prior Endangered 

Species Act (ESA) and/or National 

Historic Preservation Act (NHPA) 

compliance has been completed by 

another federal agency in connection 

with the specific oil and natural gas 

activity operated under this FIP (we 

would consider a document no longer 

valid if the issuing agency has reopened 

consultation for the prior approval). The 

appropriate documents shall clearly 

show that the other federal agency had 

met its obligations under both the ESA 

and NHPA. A simple reference to a 

Record of Decision or other final 

decision document will not be 

acceptable. For listed species, 

acceptable documentation can include a 

copy of a letter or biological opinion 

from the U.S. Fish and Wildlife Service 

addressing the effects of the project on 

listed species and critical habitat and 

demonstrating compliance by the 

federal action agency with ESA 

requirements. Where the federal action 

agency prepares a biological assessment 

of the action as part of its ESA 

compliance, that document shall also be 

provided to the EPA Regional Office. 

For historic properties, acceptable 

documentation can include: a letter 

from the appropriate historic 

preservation office, or a memorandum 

of agreement with that office, addressing 

the effects of the project on historic 

properties and demonstrating 

compliance by the federal action agency 

with NHPA requirements. All 

documentation shall be attached to the 

Part 1 Registration Form submitted in 

accordance with § 49.160(c)(1)(iv). 

(2) Screening procedures completed 

by the owner/operator. The owner/

operator shall submit to the EPA 

Regional Office (and to the relevant tribe 

for the area where the source is located/ 

locating) documentation demonstrating 

that it has completed the screening 

procedures specified for consideration 

of threatened and endangered species 

and/or historic properties and receive 

written confirmation from the EPA 

stating that it has satisfactorily 

completed these procedures. This 

process of source documentation 

submittal and the EPA’s confirmation 

that it has satisfactorily completed the 

procedures must occur prior to the 

source’s submittal of its Part 1 

Registration Form pursuant to 

§ 49.160(c)(1)(iv). (The procedures are 

contained in the following document: 

‘‘Procedures to Address Threatened and 

Endangered Species and Historic 

Properties for the Federal 

Implementation Plan for Managing Air 

Emissions from True Minor Sources in 

Indian Country in the Oil and Natural 

Gas Production and Natural Gas 

Processing Segments of the Oil and 

Natural Gas Sector,’’ https://

www.epa.gov/tribal-air/tribal-minornew-source-review). Review of your 

submittal will be conducted by the 

Reviewing Authority in accordance with 

the procedure in paragraphs (a)(2)(i) and 

(ii) of this section: 

(i) Within 30 days of receipt of your 

documentation, by letter to you, the 

Reviewing Authority must provide one 

of the following determinations: 

(A) The documentation satisfactorily 

demonstrates completion of the 

screening procedures; or 

(B) The documentation is not 

adequate, and additional information is 

needed. If the initial submittal is 

deficient, the Reviewing Authority will 

note any such deficiencies and may 

offer further direction on completing the 

screening procedures. Once you have 

addressed the noted deficiencies you 

must resubmit your revised screening 

procedure documentation for review. 

An additional 15-day review 

notification period will be used for the 

Reviewing Authority to determine 

whether the listed species and/or 

historic property screening procedures 

have been satisfied. If the Reviewing 

Authority makes such a determination, 

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they will send you a letter stating that 

conclusion. 

(ii) You must obtain a letter from the 

Reviewing Authority indicating that the 

source has adequately completed the 

screening procedures before you can 

submit the Part 1 Registration Form 

under § 49.160(c)(1)(iv) and begin 

construction under this FIP. 

(b) [Reserved] 

§ 49.105 Requirements. 

(a) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to 40 CFR part 63, 

subpart DDDDD (National Emission 

Standards for Hazardous Air Pollutants 

for Major Sources: Industrial, 

Commercial, and Institutional Boilers 

and Process Heaters), for purposes of 

this FIP, sources must comply with all 

of the applicable provisions of the 

standard as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source. 

(b) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to 40 CFR part 63, 

subpart ZZZZ (NESHAP for Stationary 

Reciprocating Internal Combustion 

Engines), for purposes of this FIP, 

sources must comply with all of the 

applicable provisions of the standard as 

written at the time the owner/operator 

begins construction on the new true 

minor source or on the minor 

modification at an existing true minor 

source. 

(c) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to 40 CFR part 60, 

subpart IIII (Standards of Performance 

for Stationary Compression Ignition 

Internal Combustion Engines), for 

purposes of this FIP, sources must 

comply with all of the applicable 

provisions of the standard as written at 

the time the owner/operator begins 

construction on the new true minor 

source or on the minor modification at 

an existing true minor source, except for 

paragraphs (c)(1) through (7) of this 

section: 

(1) Section 60.4200(a)(1)—Am I 

subject to this subpart? (applies to 

manufacturers); 

(2) Section 60.4200(b)—Not 

applicable to a stationary spark ignition 

internal combustion engine being tested 

at an engine test cell/stand; 

(3) Section 60.4201—What emission 

standards must I meet for nonemergency engines if I am a stationary 

compression ignition internal 

combustion engine manufacturer?; 

(4) Section 60.4202—What emission 

standards must I meet for emergency 

engines if I am a stationary compression 

ignition internal combustion engine 

manufacturer?; 

(5) Section 60.4203—How long must 

my engines meet the emission standards 

if I am a manufacturer of stationary 

compression ignition internal 

combustion engines?; 

(6) Section 60.4210—What are my 

compliance requirements if I am a 

stationary compression ignition internal 

combustion engine manufacturer?; and 

(7) Section 60.4215—What 

requirements must I meet for engines 

used in Guam, American Samoa, or the 

Commonwealth of the Northern Mariana 

Islands? 

(d) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to 40 CFR part 60, 

subpart JJJJ (Standards of Performance 

for Stationary Spark Ignition Internal 

Combustion Engines), for purposes of 

this FIP, sources must comply with all 

of the applicable provisions of the 

standard as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source, except for paragraphs 

(d)(1) through (5) of this section: 

(1) Section 60.4230(b)—Not 

applicable to stationary spark ignition 

internal combustion engines being 

tested at an engine test cell/stand; 

(2) Section 60.4230(c)—Exemption for 

obtaining a Title V permit if owner or 

operator of an area source subject to this 

part; 

(3) Sections 60.4231 and 60.4232— 

Emission standards for manufacturers; 

(4) Sections 60.4238 through 

60.4242—Compliance Requirements for 

Manufacturers; and 

(5) Section 60.4247—Mobile source 

provisions that apply to manufacturers 

of stationary spark ignition internal 

combustion engines or equipment 

containing such engines. 

(e) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to 40 CFR part 60, 

subpart Kb (Standards of Performance 

for Volatile Organic Liquid Storage 

Vessels), for purposes of this FIP, 

sources must comply with all of the 

applicable provisions of the standard as 

written at the time the owner/operator 

begins construction on the new true 

minor source or on the minor 

modification at an existing true minor 

source, except for paragraphs (e)(1) and 

(2) of this section: 

(1) Section 60.112b(c)—Sourcespecific standard for Merck & Co., Inc.’s 

Stonewall Plant in Elkton, Virginia; and 

(2) Section 60.117b(a) and (b)— 

Delegation of authority. 

(f) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to subpart OOOOa 

(Standards of Performance for Crude Oil 

and Natural Gas Facilities for which 

Construction, Modification, or 

Reconstruction Commenced after 

September 18, 2015), for purposes of 

this FIP, sources must comply with all 

of the applicable provisions of the 

standard as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source, except for paragraphs 

(f)(1) through (5) of this section: 

(1) Section 60.5365a(h)(4)—Existing 

sources constructed after August 23, 

2011; 

(2) Section 60.5370a(c)—Permit 

exemption; 

(3) Section 60.5413a(a)(5)— 

Exemptions from performance testing— 

hazardous waste incinerator; 

(4) Section 60.5420a(a)(2)(i)— 

Advance notification requirements for 

well completions; and 

(5) Section 60.5420a(a)(2)(ii)— 

Advance notification requirements of 

well completions when subject to state 

regulation that requires advance 

notification. 

(g) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to 40 CFR part 63, 

subpart HH (National Emission 

Standards for Hazardous Air Pollutants 

from Oil and Natural Gas Production 

Facilities), for purposes of this FIP, 

sources must comply with all of the 

applicable provisions of the standard as 

written at the time the owner/operator 

begins construction on the new true 

minor source or on the minor 

modification at an existing true minor 

source, except for paragraphs (g)(1) 

through (6) of this section: 

(1) Section 63.760(a)(2)—Facilities 

that process, upgrade or store 

hydrocarbon liquids; 

(2) Section 63.760(b)(1)(ii)—Each 

storage vessel with the potential for 

flash emissions; 

(3) Section 63.760(g)—Recordkeeping 

for major sources that overlap with 

other regulations for equipment leaks; 

(4) Section 63.764(c)(2)— 

Requirements for compliance with 

standards for storage vessels; 

(5) Seciton 63.766—Storage vessel 

standards; and 

(6) Section 63.769—Equipment leak 

standards. 

(h) For true minor sources (and minor 

modifications at true minor sources) 

that are subject to 40 CFR part 60, 

subpart KKKK (Standards of 

Performance for Stationary Combustion 

Turbines), for purposes of this FIP, the 

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owner/operator must comply with all of 

the applicable provisions of the 

standard as written at the time the 

owner/operator begins construction on 

the new true minor source or on the 

minor modification at an existing true 

minor source. 

■ 3. Section 49.151 is amended by 

revising paragraphs (b)(1), (c)(1) 

introductory text, (c)(1)(iii)(A) and (B), 

and (d)(1), (2), and (4) to read as follows: 

§ 49.151 Program overview. 

* * * * * 

(b) * * * 

(1) It satisfies the requirements of 

section 110(a)(2)(C) of the Act by 

establishing a pre-construction 

permitting program for all new and 

modified minor sources (minor sources) 

and minor modifications at major 

sources located in Indian country and 

by establishing a Federal 

Implementation Plan (§§ 49.101 through 

49.105) for true minor sources in the oil 

and natural gas production and natural 

gas processing segments that are located 

in Indian country. 

* * * * * 

(c) When and where does this 

program apply? (1) The provisions of 

this program apply in all Indian 

reservation lands where no EPAapproved program is in place and all 

other areas of Indian country where no 

EPA-approved program is in place and 

over which an Indian tribe, or the EPA, 

has demonstrated that a tribe has 

jurisdiction, according to the 

implementation schedule in paragraphs 

(c)(1)(i) through (iii) of this section: 

* * * * * 

(iii) * * * 

(A) If you own or operate an existing 

true minor source in Indian country (as 

defined in § 49.152(d)), you must 

register your source with the Reviewing 

Authority in your area by March 1, 

2013. If your true minor source is not 

engaged in an oil and natural gas 

activity and you commence 

construction after August 30, 2011, and 

before September 2, 2014, you must also 

register your source with the Reviewing 

Authority in your area within 90 days 

after the source begins operation. If your 

true minor source is engaged in an oil 

and natural gas activity and you 

commence construction after August 30, 

2011, and before October 3, 2016, you 

must register your source with the 

Reviewing Authority in your area 

within 90 days after the source begins 

operation. You are exempt from these 

registration requirements if your true 

minor source is subject to § 49.138. 

(B) If your true minor source is not 

engaged in an oil and natural gas 

activity and you wish to begin 

construction of a new true minor source 

or a minor modification at an existing 

true minor source on or after September 

2, 2014, you must first obtain a permit 

pursuant to §§ 49.154 and 49.155 (or a 

general permit/permit by rule pursuant 

to § 49.156, if applicable). If your true 

minor source is an oil and natural gas 

source, as defined in § 49.102, and you 

wish to begin construction of a new true 

minor source or a minor modification at 

an existing true minor source on or after 

October 3, 2016, you must either 

comply with the Federal 

Implementation Plan for sources in the 

oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector that are 

located in Indian country (§§ 49.101 

through 49.105) from the day you begin 

construction or opt out of those 

requirements pursuant to § 49.101(b)(2) 

and instead obtain a minor source 

permit pursuant to §§ 49.154 and 49.155 

before beginning construction. 

Alternatively, you may be required by 

the EPA, pursuant to § 49.101(b)(3), to 

obtain a minor source permit pursuant 

to §§ 49.154 and 49.155 before 

beginning construction. All proposed 

new sources or modifications of existing 

sources are also subject to the 

registration requirements of § 49.160, 

except for sources that are subject to 

§ 49.138. 

* * * * * 

(d) * * * 

(1) If you begin construction of a new 

source or modification that is subject to 

this program after the applicable date 

specified in paragraph (c) of this section 

without applying for and receiving a 

permit pursuant to this program or 

complying with the Federal 

Implementation Plan at §§ 49.101 

through 49.105 for the oil and natural 

gas production and natural gas 

processing segments of the oil and 

natural gas sector, you will be subject to 

appropriate enforcement action. 

(2) If you do not construct or operate 

your source or modification in 

accordance with the terms of your 

minor NSR permit or the Federal 

Implementation Plan for the oil and 

natural gas production and natural gas 

processing segments of the oil and 

natural gas sector at §§ 49.101 through 

49.105, you will be subject to 

appropriate enforcement action. 

* * * * * 

(4) Issuance of a permit or compliance 

with the Federal Implementation Plan 

for the oil and natural gas production 

and natural gas processing segments of 

the oil and natural gas sector at 

§§ 49.101 through 49.105 does not 

relieve you of the responsibility to 

comply fully with applicable provisions 

of any EPA-approved implementation 

plan or Federal Implementation Plan or 

any other requirements under 

applicable law. 

* * * * * 

■ 4. Section 49.152 is amended in 

paragraph (d) by revising the 

introductory text and adding paragraph 

(4) to the definition of ‘‘Indian country’’ 

and adding in alphabetical order the 

definition ‘‘Startup of production’’ to 

read as follows: 

§ 49.152 Definitions. 

* * * * * 

(d) * * * 

Indian country, as defined in 18 

U.S.C. 1151, means the following as 

applied to this program: 

* * * * * 

(4) The geographic scope of 

applicability of this rule is as specified 

in § 49.151(c)(1). 

* * * * * 

Startup of production is as defined at 

§ 60.5430a. 

* * * * * 

■ 5. Section 49.153 is amended by 

revising paragraphs (a)(1)(i)(B) and 

(a)(1)(ii)(B) to read as follows: 

§ 49.153 Applicability. 

(a) * * * 

(1) * * * 

(i) * * * 

(B) Step 2. Determine whether your 

proposed source’s potential to emit for 

the pollutant that you are evaluating, 

(including fugitive emissions, to the 

extent they are quantifiable, only if the 

source belongs to one of the source 

categories listed pursuant to section 

302(j) of the Act), is equal to or greater 

than the corresponding minor NSR 

threshold in Table 1 of this section. If 

it is, then you are subject to the preconstruction requirements of this 

program for that pollutant, except that 

sources in the oil and natural gas 

production and natural gas processing 

segments of the oil and natural gas 

sector shall instead comply with the 

requirements of the Federal 

Implementation Plan at §§ 49.101 

through 49.105, unless you opt-out of 

the Federal Implementation Plan 

pursuant to § 49.101(b)(2) in which case 

you are subject to the pre-construction 

requirements of this program for that 

pollutant or are required by the EPA to 

obtain a minor source permit pursuant 

to § 49.101(b)(3). If it is not, then 

proceed to Step 3 (paragraph (a)(1)(ii)(C) 

of this section). 

(ii) * * * 

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Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Rules and Regulations 35981 

(B) Step 2. Determine whether the 

increase in allowable emissions from 

the proposed modification (calculated 

using the procedures of paragraph (b) of 

this section) would be equal to or 

greater than the minor NSR threshold in 

Table 1 of this section for the pollutant 

that you are evaluating. If it is, then you 

are subject to the pre-construction 

requirements of this program for that 

pollutant, except oil and natural gas 

production and natural gas processing 

sources shall instead comply with the 

requirements of the Federal 

Implementation Plan at §§ 49.101 

through 49.105, unless you opt-out of 

the Federal Implementation Plan 

pursuant to § 49.101(b)(2) in which case 

you are subject to the pre-construction 

requirements of this program for that 

pollutant or are required by the EPA to 

obtain a minor source permit pursuant 

to § 49.101(b)(3). If it is not, then 

proceed to Step 3 (paragraph (a)(1)(ii)(C) 

of this section). 

* * * * * 

■ 6. Section 49.160 is amended by 

revising paragraphs (c)(1)(ii) and (iii), 

adding paragraph (c)(1)(iv), and revising 

paragraph (c)(4) to read as follows: 

§ 49.160 Registration program for minor 

sources in Indian country. 

* * * * * 

(c) * * * 

(1) * * * 

(ii) If your true minor source is not 

engaged in an oil and natural gas 

activity, and you commence 

construction after August 30, 2011, and 

before September 2, 2014, then you 

must register your source with the 

Reviewing Authority within 90 days 

after the source begins operation. If your 

new true minor source or minor 

modification of an existing true minor 

source is engaged in an oil and natural 

gas activity, and you commence 

construction after August 30, 2011, and 

before October 3, 2016, then you must 

register your source with the Reviewing 

Authority within 90 days after the 

source begins operation. 

(iii) If your true minor source is not 

engaged in an oil and natural gas 

activity, and you commence 

construction or modification of your 

source on or after September 2, 2014, 

and your source is subject to this rule, 

then you must report your source’s 

actual emissions (if available) as part of 

your permit application and your permit 

application information will be used to 

fulfill the registration requirements 

described in paragraph (c)(2) of this 

section. If your true minor source is 

engaged in an oil and natural gas 

activity, and you commence 

construction or modification of your 

source on or after October 3, 2016, then 

you must report your source’s actual 

emissions (if available) as part of your 

permit application (source-specific 

permits), unless you are subject to the 

Federal Implementation Plan under 

§§ 49.101 through 49.105 (where the 

requirements under paragraph (c)(1)(iv) 

of this section shall be met). Your 

permit application for oil and natural 

gas production and natural gas 

processing sources seeking a sourcespecific permit will be used to fulfill the 

registration requirements described in 

paragraph (c)(2) of this section. 

(iv) Minor sources complying with 

§§ 49.101 through 49.105 for the oil and 

natural gas production and natural gas 

processing segments of the oil and 

natural gas sector, as defined in 

§ 49.102, must submit the Part 1 

Registration Form 30 days prior to 

beginning construction that contains the 

information in paragraph (c)(2) of this 

section. The Part 2 Registration Form 

must be submitted within 60 days after 

the startup of production as defined in 

§ 49.152(d), which include emissions 

information. The source must determine 

the potential for emissions within 30 

days after startup of production. The 

combination of the Part 1 and Part 2 

Registration Forms submittals satisfies 

the requirements in paragraph (c)(2) of 

this section. The forms are submitted to 

the EPA instead of the application form 

required in paragraph (c)(1)(iii) of this 

section. The forms are available at: 

https://www.epa.gov/tribal-air/tribalminor-new-source-review or from the 

EPA Regional Offices. 

* * * * * 

(4) Duty to obtain a permit or to 

comply with the Federal 

Implementation Plan for sources in the 

oil and natural gas production and 

natural gas processing segments of the 

oil and natural gas sector. Submitting a 

registration form does not relieve you of 

the requirement to obtain any required 

permit, including a pre-construction 

permit, or to comply with the Federal 

Implementation Plan for the oil and 

natural gas production and natural gas 

processing segments of the oil and 

natural gas sector if your source or any 

physical or operational change at your 

source would be subject to any minor or 

major NSR rule. 

* * * * * 

■ 7. Section 49.166 is amended by 

revising paragraph (c)(1) to read as 

follows: 

§ 49.166 Program overview. 

* * * * * 

(c) When and where does this 

program apply? (1) The provisions of 

this program apply to new major 

sources and major modifications at 

existing major sources located in 

nonattainment areas in all Indian 

reservation lands where no EPAapproved program is in place and all 

other areas of Indian country where no 

EPA-approved program is in place and 

over which an Indian tribe, or the EPA, 

has demonstrated that a tribe has 

jurisdiction, and where there is no EPAapproved nonattainment major NSR 

program beginning on August 30, 2011. 

The provisions of this program apply 

only to new sources and modifications 

that are major for the regulated NSR 

pollutant(s) for which the area is 

designated nonattainment. 

* * * * * 

■ 8. Section 49.167 is amended by 

revising the introductory text and 

adding paragraph (4) to the definition of 

‘‘Indian country’’ to read as follows: 

§ 49.167 Definitions. 

* * * * * 

Indian country, as defined in 18 

U.S.C. 1151, means the following as 

applied to this program: 

* * * * * 

(4) The geographic scope of 

applicability of this rule is as specified 

in § 49.166(c)(1). 

* * * * * 

[FR Doc. 2016–11969 Filed 6–2–16; 8:45 am] 

BILLING CODE 6560–50–P 

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