1

Summary of Public Comments for Managing Emissions: Oil and Natural Gas Production

in Indian Country (Docket Id. No EPA

- HQ

- OAR

- 2011

- 0151) ( 8 / 13 /15)

Table 1. Commenters on the Advance Notice of Proposed Rulemaking ( ANPR ) Docket Id. No. Commenter Name Commenter Affiliation EPA

- HQ

- OAR

- 2011

- 0151

- 0062 Anonymous Public Comment
EPA

- HQ

- OAR

- 2011

- 0151

- 0064; EPA

- HQ

- OAR

- 2011

- 0151

- 0114 Clement J. Frost Southern Ute Indian Tribe

EPA

- HQ

- OAR

- 2011

- 0151

- 0065; EPA

- HQ

- OAR

- 2011

- 0151

- 0111 Matthew Todd American Petroleum Institute

EPA

- HQ

- OAR

- 2011

- 0151

- 0066; EPA

- HQ

- OAR

- 2011

- 0151

- 0116 Ursula Rick, Ph.D. Western Energy Alliance

EPA

- HQ

- OAR

- 2011

- 0151

- 0069 Anonymous Public Comment NA

EPA

- HQ

- OAR

- 2011

- 0151

- 0078 Anonymous Public Comment NA

EPA

- HQ

- OAR

- 2011

- 0151

- 0081 Raymond M. Sauvajot National Park Service

, Department of Interior
EPA

- HQ

- OAR

- 2011

- 0151

- 0082 Bruce Pendery Wyoming Outdoor Council

EPA

- HQ

- OAR

- 2011

- 0151

- 0083 Javier Loera Ysleta Del Sur Pueblo

EPA

- HQ

- OAR

- 2011

- 0151

- 0087 Christi Zeller La Plata County Energy Council

EPA

- HQ

- OAR

- 2011

- 0151

- 0104 Jonathan Matt QEP Field Services 1

EPA

- HQ

- OAR

- 2011

- 0151

- 0105 Jeff Applekamp Gas Processors Association 2

EPA

- HQ

- OAR

- 2011

- 0151

- 0106 Stan Dempsey, Jr. Colorado Petroleum

EPA

- HQ

- OAR

- 2011

- 0151

- 0107 Cameron Cuch Crescent Point Energy U.S. Corp
EPA

- HQ

- OAR

- 2011

- 0151

- 0108 Gordon Howell Ute Indian Tribe2

Docket Id. No. Commenter Name Commenter Affiliation EPA

- HQ

- OAR

- 2011

- 0151

- 0109 Clean Air Task Force et al. Clean Air Task Force, National Parks Conservation Association, Earthjustice, WildEarth Guardians, Southern Utah Wilderness Alliance
EPA

- HQ

- OAR

- 2011

- 0151

- 0110 Chad Schlichtemeier Anadarko Petroleum Corporation
EPA

- HQ

- OAR

- 2011

- 0151

- 0112 Scott Mason Enerp lus Resources Corporation

EPA

- HQ

- OAR

- 2011

- 0151

- 0113 Mike Smith QEP Resources 3

EPA

- HQ

- OAR

- 2011

- 0151

- 0119 Tomas Carbonell Environmental Defense Fund

1 Endorses comments submitted by Gas Processors Association

. 2 Endorses comments submitted by American Petroleum Institute.

3 Incorporates by reference comments submitted by the Western Energy Alliance.

1

. 0 Need for regulating oil and NG sources in Indian Country

1.1 S upport for regulating oil and gas sources

Comment 1.1.1: Several commenters (0107, 0108, 0109, 0119 ) provided support for the development of regulation of oil and natural gas sources in Indian country . Commenters (0107, 0109) agreed that oil and gas sources are prevalent enough in Indian country to justify the need for permitting , and that tribes must attempt to balance development with improving air quality (0108)

. One commenter ( 0119 ) stated that Indian country accounts for the majority of oil

- and

gas

- producing areas in the Uinta h a nd North Sa n Juan Basins, and that these sources are significant in the South San Juan and Wind River Basins. Two commenters (0109, 0119 ) asserted that oil and natural gas sources in Indian County contribute substantial emissions of air pollutants that may harm publi c health, pointing to the collective emissions from drilling, hydraulic fracturing and completion activities, well operation and maintenance, transport and distribution of oil and gas, and road, well pad, and pipeline construction from many small

sources. These commenters (0109, 0119 ) expressed concerns regarding the emissions of nitrogen oxides (NO x ) and volatile organic compounds (VOCs), and their contribution to the development of ground

- level ozone and smog which may cause potential harmful health effec ts. One commenter (0108) noted that emissions of carbonyls, such as formaldehyde, from oil and gas sources were also contributing to ozone formation

. C ommenter s (0109

, 0119 ) also pointed out that sensitive populations (e.g., newborns, children with asthma) are more likely to be at risk. These commenters (0109, 0119 ) also explained that ground

- level ozone formation is harmful to the surrounding ecosystem and plant and wild life

. Tw o c ommenters (0109, 0119 ) also pointed to fine particulate emissions, includ ing black carbon, and particulate precursors (e.g., sulfur dioxide (SO 2 ), NO x ) that are emitted by oil and gas sources and the ir potential impact on public health, specifically sen sitive populations. The same commenters (0109, 0119 ) pointed to emissions of air toxics and hazardous air pollutants (HAPs) from oil and gas sources as potential carcinogenic3

and public health risks; these commenters pointed to oil and natural gas sources as significant sources of HAP s

. The commenters (0109, 0119 ) asserted that regulation of oil and natural gas sources is necessary to protect public health. T wo commenters (0109, 0119 ) noted that oil and gas sources are a significant source of methane, a potent greenhouse gas. One commenter (0109) stated that the oil and gas industry is the largest source of anthropogenic methane pollution in the U.S. according to U.S. Environmental Pr otection Agency’s ( EPA’s ) Greenhouse Gas Inventory. The same commenter (0109) noted that regulation of these sources is necessary to meet the White House’s Climate Action Plan, and pointed to the impact of increased methane on increasing ground

- level ozone formation.

Comment 1.1. 2 : One commenter (0109) expressed concerns regarding the effects of nitrogen deposition and acidification to national monuments, including Rocky Mount National Park and Dinosaur National Monument. The commenter (0109) provided input on the impacts of ozone pollution and v isibility impairment already present in Dinosaur National Park, which the commenter stated were of significant concern. The commenter (0109) stated that no controls have been imposed on oil and gas sources in the Uinta h Basin that contribute to visibility impairment at Dinosaur National Park and other impaired Class I areas in Indian country

. The commenter (0109) also argued that emissions from oil and gas impact the park’s ability to meet ambient air quality standards; the commenter provided data from moni toring at the park that has routinely documented exceedances of ozone levels.

Comment 1.1. 3 : Two commenters (0109, 0119 ) expressed that regulation of oil and gas sources is necessary to improve air quality in the Uintah Basin. Three commenters (0108, 0109, 0119 ) expressed concerns that the ozone levels in the Uintah Basin are among the worst in the nation, particularly due to snow cover and a strong temperature i nversion in the basin during the winter months. The commenters (0109, 0119 ) provided data s howing that the Uintah Basin has experienced numerous 8

- hour ozone exceedances over the 0.075 parts per million standard. One commenter (0109) provided numerous examples of multiple exceed a nces of the ozone National Ambient Air Quality Standards ( NAAQS ) in 2010, 2011, and 2013, in addition to a Utah Division of Air Quality study confirming the extreme ozone levels in the Uintah Basin . The commenter (0109) argued that under the federal standard, EPA should classify the Uintah Basin as a nonattainment area fo r ozone. Two commenters (0109, 0119 ) asserted that existing oil and gas sources have contributed to these exceedances. The commenters (0109, 0119 ) provided citations to recent studies demonstrating that ozone in the Uintah Basin forms primarily from VOC emissions and that oil and gas operations in the Uintah Basin are the most significant source of VOC emissions. One commenter ( 0119 ) stated that rapid development of oil and gas resources is already having a significant impa ct on public health and the environment in the Uintah Basin . One commenter (0109) also noted that monitors within the Uintah Basin have recorded elevated levels of fine particulate pollution. The commenter (0109) stated that monitors in Uintah County and D uchesne County have measured wintertime particulate matter ( PM 2.5 ) concentrations above federal standards and that these elevated levels have been linked to oil and gas activities in the Uintah Basin.

Comment 1.1. 4 : One commenter (0109) also pointed to unhealthy ozone levels in the San Juan Basin in the Four Corners region. The commenter (0109) agreed with the ANPR that oil and natural gas production sources are the source of the majority of the emissions of NO x and4

a la rge portion of the VOC emissions in the Northern San Juan Basin. The commenter (0109) pointed to monitoring between 2010 and 2012 that indicated multiple days where 8

- hour ozone concentrations are substantially higher than 0.075 ppm. The commenter stated t hat

, although the Four Corners region is not designated nonattainment for ozone, it still suffers from elevated ozone levels that are harmful to public health.

Comment 1.1. 5 : Two commenters (0109, 0119 ) asserted that emissions on tribal lands will increa se due to continued rapid development of oil and natural gas reserves in Indian country , including areas with significant reserves, such as the Jicarilla Apache, Navajo, Southern Ute, Fort Berthold, and Uintah Reservations (0109). One commenter (0109) poin ted to the
E nergy Information Administration ’s June 2014 report on fossil fuel production for evidence of increased oil production from 2009

, as well as projections for shale gas production. The commenter (0109) noted that oil and natural gas production so urces contribute the majority of NO x emissions and a large portion of VOC emissions in the region composed of New Mexico, Colorado, Utah, Wyoming, Montana, and North Dakota. The commenter (0109) provided data for the estimated VOC emissions from oil and ga s development on tribal areas in the Uintah and Southern San Juan in 2008. The commenter (0109) also stated that there is already substantial existing oil and gas development within the Uintah Basin, and that this development is projected to increase per U.S. Bureau of Land Management (BLM) estimates

. The commenter (0109) further pointed to the approval of thousands of additional wells by federal land managers and the BLM. The commenter (0109) argued that these projects are anticipated to increase NO x and VOC emissions, increasing regional ozone levels.

1.2 Opposition to regulation

Comment 1. 2 .1: One commenter (0078) opposed the ANPR as written. The commenter stated that the proposal would cause an undue financial and time burden on minor sources, and asserted that EPA is acting outside the scope of its power. The commenter (0078) asserted that EPA is overstepping its boundaries by setting forth regulations that will have a direct effect on interstate and intrastate commerce; the commenter further argued that the proposal would restrict access to natural resources and delay U.S achievement of energy independence.

2.0 Proposed Approaches to Manage Emissions f rom Oil & NG Sources

2.1 General Permit Approach

2.1.1 Support for General Permit

Comment 2

. 1 .1 .1 : Two commenters (0065, 0114) expressed support for the proposed general permit approach. One commenter (0114) stated that a general permit or permit by rule approach would protect air quality, minimize the permitting burden, and provide owners and operators certainty regarding permitting requirements. Another commenter (0065) stated that oil and gas exploration and production sources a re sufficiently similar in operation that a general permit or permit by rule could be an effective permitting mechanism. The commenter stated that5

the permit must be implemented so as to not to cause delays because e xploration and production sources may need to be started or modified with little advance notice.

Comment 2

. 1

. 1.2 : One commenter (0114) recommended that EPA implement a tiered permitting structure. The commenter (0114) recommended a four

- tiered approach. First, the commenter (0114) suggested that Tier I permits could cover small sources up to a certain emissions threshold under which it has been determined there will be no violation of ambient air quality standards (limited to sources in attainment areas), could include minimal or no additional requirements outside of what may already be required under existing New Source Performance Standard (NSPS) or Maximum Available Control Technology (MACT) standards, but would not require an air quality impacts analys is or refined modeling. The commenter (0114) suggested that Tier 2 permits could be general permits that cover sources for which emissions would not cause or contribute to a NAAQS violation, and would include emission standards to ensure NAAQS compliance

, including standards for HAPs that could vary according to the proximity of potential receptors, similar to the remote/non

- remote component of 40 CFR part 63, subpart ZZZZ. The commenter (0114) described Tier 3 as a general permit covering large sources tha t may cause or contribute to a NAAQS violation, and containing more stringent emission standards and recordkeeping, air quality impacts analyses, and potentially additional monitoring

to demonstrate compliance with the NAAQS. Finally, the commenter (0114) recommended a Tier 4 permit for case

- by

- case permitting

, available as a voluntary means to obtain synthetic minor limitations , and requiring an air quality impacts analysis and refined emissions modeling to demonstrate compliance with NAAQS.

2.1. 2 Opposition to permit approach

Comment 2

. 1

. 2.1 : One commenter (0108) specifically opposed the general permit approach. The commenter (0108) argued that use of a general permit would cause unnecessary delays, such as pre

- construction review. The commente r (0108) asserts that this could create a significant administrative burden for regulatory authorities, may result in approval backlogs that could impact economic development, and would introduce uncertainty for facilities. The commenter (0108) also argued that a general permit would create delays by enabling the public to challenge individual sources seeking coverage.

2.2 Federal Implementation Plan (FIP) approach

2.2. 1 Support for FIP

Comment 2

. 2

. 1.1 : Seven commenters (0081, 0082, 01 0 8, 0 109, 0111, 0112, 0119 ) supported the development of a FIP to regulate oil and natural gas sources in Indian country

. Two commenter s (0108 , 0111 ) supported the use of a FIP because it would streamline the permitting approach, eliminate the need for preconstruction ap proval, and apply requirements directly to sources subject to the regulation. One commenter (0111) stated that a FIP approach would be environmentally protective because appropriate control measures would be in place, and would provide EPA and the tribes ’ assurance s that construction and modification activities are being adequately and appropriately regulated. Four commenters (0081 , 0082, 0109, 0119 ) supported the use of a FIP because it would allow for coverage of existing sources. One of these6

commenters ( 0119 ) asserted that a FIP is necessary to control emissions from existing sources, stating that existing oil and gas facilities (as of 2011) will contribute 90 percent of the projected methane emissions in Indian country by 2018. Another commenter (0109) stated that a FIP approach is warranted given the scarcity of monitoring within Indian country.

Comment 2

. 2

. 1.2 : Two commenter s ( 0109, 0119 ) asserted that EPA has broad legal authority to issue a FIP in Indian country that covers both new and modified sou rces as well as existing sources. One commenter ( 0119 ) stated that EPA has authority per section 301(d) of the Clean Air Act ( CAA ) , which provides that EPA “may provide, by regulation, . . . means by which the Administrator will directly administer” CAA programs when the Administrator determines that is “inappropriate or administratively infeasible” for tribal authorities to implement them [42 U.S.C. § 7601(d)(4)], and that EPA may administer a FIP “in the shoes of a tribe

. ” The commenter ( 0119 ) further a sserted that the Tribal Authority Rule (TAR) specified that EPA not treat tribes as states with respect to statutorily prescribed deadlines for submitting State Implementation Plans (SIPs) and FIPs, but that EPA “may act to protect air quality pursuant to its ‘gap

- filling’ aut hority under the Act as a whole ” even “in the absence of an express statutory requirement” to promulgate a FIP. The commenter ( 0119 ) further asserted that EPA appropriately acknowledged a gap in regulation of air quality in Indian coun try in the ANPR. The commenter ( 0119 ) stated that the lack of minor source regulatory programs in Indian country denies tribal communities the protections that Congress intended in enacting section 110(a)(2)(A) of the CAA, and that EPA must act to address the gap to comply with the TAR.

Comment 2

. 2

. 1.3 : Two commenters (0109, 0119 ) requested that EPA implement a FIP tha t applies t o existing sources and includes flexible pollution control strategies and mechanisms to promote technological innovation. One of these commenters ( 0119 ) provided an example where a company could apply for alternative site

- specific controls if it demonstrates that the proposed m easures would exceed the FIP’s requirements. The same commenter ( 0119 ) asserted that promulgating rigorous emissions controls through a FIP is consistent with economic development. The commenter ( 0119 ) asserted that EPA has successfully demonstrated throug h the Fort Berthold Indian Reservation (FBIR) FIP that this is an effective approach. The

commen ter ( 0119 ) noted that several cost effective control measures have been successfully applied to new, existing, and modified sources through the FB IR FIP. The sa me commenter ( 0119 ) stated that states that have implemented robust emissions control regulations have experienced more growth in oil and gas production than states without similar regulations. The commenter provided evidence showing an increase in operati ons and well approvals in Colorado and Wyoming following promulgation of more stringent emissions control requirements. The commenter ( 0119 ) also asserted that emission controls that capture previously vented, flared, or leaked natural gas will lead to inc reased royalty payments for tribal communities.

Comment 2

. 2

. 1.4 : One commenter (0112) supported the use of the FBIR FIP for oil and natural gas well production facilities as the mechanism for permitting oil and gas operators on the FBIR , provided no additional requirements beyond the FBIR FIP are included. The commenter (0112) noted that the FBIR FIP alrea dy covers existing sources.7

Comment 2

. 2

. 1.5 : One commenter (0109) recommended that EPA establish a requirement to periodically review (not less than every five years) any promulgated FIP emission limits and controls to ensure continued reflection of the best available cost

- effective control.

2. 2. 2 Oppo sition to FIP

Comment 2

. 2

. 2.1 : Two commenters (0107, 0114) opposed development of a FIP for minor oil and gas sources in Indian country . One commenter (0107) stated that EPA has already developed the Federal New Source Review (NSR) Program in Indian Country as a FIP, and that a second FIP is not required

. The commenter (0107) also opposed the use of a FIP for regulation of existing minor oil and gas sources in Indian country . One commenter (0114) stated that the FIP could cause addi tional, duplicative, or unnecessarily stringent control requirements than would be required in a general permit or permit by rule. The commenter (0114) asserted that FIPs do not provide the flexibility that is necessary to meet the changing air quality nee ds of the oil and natural gas production sector due to the administrative procedures and time required for any amendment to a FIP. Rather, the commenter (0114) requested that any approach taken include the ability to promptly adjust or revise requirements. The commenter (0114) also stated that a FIP does not afford the same level of opportunity for a regulatory authority or the public to review, provide input on, or object to a source's coverage under the rule as a general permit or permit by rule.

2.3

. Permit by Rule Approach

2.3.1 Support for Permit by Rule

Comment 2

. 3

. 1.1 : Four commenters (0107, 0113, 0014, 0065) expressed support for a permit by rule approach. One commenter (0114) stated that a permit by rule approach would protect air quality, mi nimize the permitting burden, and provide owners and operators certainty regarding permitting requirements. One commenter (0107) noted that because the majority of oil and gas sources are true minor sources, a permit by rule would increase efficiency without risking impacts to air quality. Two commenter s (0065 , 0107 ) stated that oil and gas exploration and production sources are sufficiently similar in operation , anticipated types of controls, and expected number of sources that a permit by rule could be an effective permitting mechanism. One commenter (0107) supported a permit by rule approach because a streamlined permit by rule would ease the burden on both industry and regulatory authoritie s, and allow industry to focus resources on compliance.

Co mment 2

. 3

. 1.2 : Two commenter s (0107 , 0113) stated that a permit by rule would remove the requirement for p re

- construction authorization. One of these commenters (0107) noted that this would create certainty for the regulated community

. Another commenter (0113) contended that post

- construction is essential because natural gas and oil production rates are highly variable, and operators must evaluate actual production rates after wells are completed to accurately estimate potential emissions and co mplete permit applications. The commenter (0113) stated that

, because many states allow post

- construction permitting for oil and gas sources, not allowing post

- construction permitting could impair economic development. One commenter (0107) pointed to the a

pproval of state or local permits by rule in SIPs

. Another commenter8

(0113) questioned whether EPA maintained the resources to manage the general permit application process. One commenter (0107) stated that a permit by rule would provide ample opportunity for public comment. The same commenter (0107) expressed support for a permit by rule where operators would maintain the application on file and notification would be submitted to the reviewing agency.

Comment 2

. 3

. 1.2 : Another commenter (0113) stated that EPA should structure a permit by rule permitting regime consistent with the state approach es regulating lands immediately surrounding portions of Indian country

. The commenter (0113) encouraged EPA to work with the tribal governments in these areas.

2.3.2 Opposition to Permit s b y Rule

Comment 2

. 3

. 2.1 : One commenter (0108) opposed the use of a permit by rule for regulating oil and natural gas sources in Indian country . The commenter (0108) indicated that a permit by rule would be limited to addressing new and modified sources. The commenter (0108) noted that although a permit by rule has advantages over a general permit, a reservation

- specific FIP is preferable.

2.4 Relationship between FIP and the Federal Indian Country Minor New Source Review Rule

Comment 2

. 4

. 1 : Several commenters (0111, 011 3 , 011 4 ) weighed in on the relationship between a FIP and the Federal Indian Country Minor NSR rule. These commenters (0111, 0113, 0114) also agreed with the proposed vision of requiring a source to comply with only one

program. Two commenter s ( 0109, 0111) agreed with EPA that a permitting mechanism should be designed such t hat the requirements for construction and modification would be protective of the NAAQS

. One commenter (0109) stated that EPA has not explained in the ANPR how it would ensure that the NAAQS are met and will continue to be met for all regions

. Two commenters (0111, 0114) stated that the FIP, general permit, or permit by rule should expressly provide that facilities covered by its requirements are deemed to satisfy (or, alternatively, are exempted from) the t ribal NSR requirements.

Comment 2

. 4

. 2 : Three commenters (0111, 0113, 0114) requested that, in situations where an affected source determines that the standard FIP requirements do not address the unique circumstances of a particular project, the permittee should be able to opt out of the FIP

a nd, instead, apply to EPA for a case

- by

- case minor NSR permit. One commenter (0113) noted that states that have issued general permit s for oil and gas production operations allow operators the option of applying for site

- specific permits. The same commente r (0113) also requested that whether a FIP, permit by rule , or g eneral p ermit approach is used, operators should have the option to seek site

- specific limits through a site

- specific permit or FIP

. The commenter (0113) provided an example of a provision for continued use of the FB IR FIP.

Comment 2

. 4

. 3 : Another commenter (0109) asserted that EPA must ensure compliance with the NAAQS before it can provide exemptions from the Federal Minor NSR Program in Indian Country or allow a source to choose a site

- specific permit

. The commenter (0109) argued that prior to allowing sources to avoid review under the Federal Minor NSR Program in Indian Country , for areas that are exceeding the air quality standards, EPA must develop an emission9

inventory (using al l reliable monitoring and modeling data) , consider impacts of both new and existing sources, and develop a regional FIP with control measures that ensure compliance

. The commenter (0109) also requested that EPA include requirements to revisit the FIP regul arly to

ensure continued compliance, and to establish specific triggers (e.g., a percentage of the NAAQs) to identify areas in danger of exceedance.

2.5 Additional Comments on the Proposed Approaches

Comment 2

. 5

. 1 : Several commenters (0065, 0104, 0105, 0106, 0110, 0111, 0112, 0113, 0114, 0116) requested that EPA implement a permitting mechanism (either general permit, FIP,

or permit by rule ) that allows for sources to use a streamlined permitting approach for synthet ic minor sources for both criteria and HAP pollutants

. Several c ommenters (0105 , 0106, 0111

, 0114 ) requested that sources should be able to establish federally enf orceable limits to avoid major source permitting, prevention of significant deterioration (PSD) permitting, NSPS, and N ational E missions S tandards for H azardous A ir P ollutants ( NESHAPs )

. Four commenters (0105, 0106, 0113, 0116) requested that the permitting mechanism make no distinction between true minor and synthetic minor sources. One commenter (0106) asserted that general p ermits, permits by rule, and FIPs are enforceable rules that will ensure emissions from sources stay below major source thresholds. One commenter (0114) preferred a general permit to effectively authorize synthetic minor sources. Some commenters (0105, 0106, 0111, 0116) asserted that several states have used streamlined permitting programs that allow sources to establish federa lly enforceable emission limits. One commenter (0116) stat ed that operators i n Indian country should have the same opportunity to create synthetic minor sources as they do on surrounding state lands, to avoid creating economic disadvantages for tribes. One commenter (0106) provided reference to several EPA guidance documents previously issued that advocated the use of general permits and permits by rule as means to limit facilities to below Title V and MACT standards. Another commenter (0104) stated that the Federal Indian Country Minor NSR rule provides for the availability of voluntary emission li mits. Some commenters (0111) pointed to the inefficiency of not allowing permitting of synthetic minor oil and gas sources, noting that permitting synthetic minors would be delayed if they could only be created through a case

- by

case permitting process. On e commenter (0114) stated that implementing a FIP that would authorize larger, more complex minor sources up to the major source threshold under the PSD
P rogram would be confusing for industry and difficult for a regulatory authority to confirm compliance with the NAAQS. The commenter (0114) asked that if this approach is taken, EPA provide evidence that NAAQS compliance will be achieved.

Comment 2

. 5

. 2 : Commenters recommended a variety of approaches that could be taken to establish federally enf

orceable emission limits. One commenter (0105) requested that sources be allowed to tailor limits to specific values, rather than be subject to prescriptive emission control requirement. Several commenters (0105, 0111) suggested that EPA adopt a self

certification process where the applicant identifies the limits being requested during registration and certifies emission rates. Another commenter (0112) stated that EPA should allow operators to limit annual production rates in the registration process; the commenter asserted that this approach will allow operators to continue development while reducing the resources needed to process applications. Another commenter (0106) stated that, in order to avoid application of MACT or NESHAPs, federally enf orceable limits must be effective from the date of construction. The commenter (0106) noted that a FIP or permit by rule would provide for10

federally enf

orceable limits effective from the date of construction. One commenter (0111) noted that sources that are constructed or modi fied in nonattainment areas must already acquire emissions offsets equal to or exceeding the emissions increase. The commenter (0111) suggested that certifying to an emissions rate also would be effective (and should be available) as a means of generating emissions offsets for affected sources in nonattainment areas

.

Comment 2

. 5

. 3 : Several commenters ( 0106, 0110, 0111, 0112, 0113, 0116) requested that the permitting mechanism chosen (i.e., either FIP or permit by rule) allow for post

construction notification. The commenters (0110 , 0112 , 0116 ) noted that p re

- construction permits are not effective for oil and natural gas sources because companies are unable to determine production thresholds prior to drilling a well. Commenters (0111, 0116) objected to the delay in permitting mechanisms that require pre

- construction authorization. Two commenters (0111, 0113) stated that post

- construction authorization would ensure that companies have infrastructure in place to reduce emissions and ensure more accurat e emission calculations and installation of controls. Two c ommenter s ( 0106, 0116) requested that EPA design the permitting approach to apply on the date that construction begins but allow notice of coverage after commencement of construction. Another comme nter (0112) requested that EPA allow post

construction regist r ation such as is utilized for new or modified sources in the F BIR FIP. One commenter (0116) expressed concern that EPA would not have the resources to process general permits that would require pre

- construction review in a timely manner.

Comment 2

. 5

. 4 : One commenter (0109) requested that EPA select a permitting mechanism that provides opportunities for tribal and public comment. The commenter (0109) voiced the concern that the FIP and permit by rule approaches only allow a one

- time opportunity for public comment, and that the input collected during development of a general permit is limited to whether the source qualifies for the relevant source category. The commenter (0109) stated that this li mited public input is insufficient where sources are located near homes, schools, otherwise occupied buildings, and recreational areas, or are likely to impact sensitive receptors, like national parks, wilderness areas, or tribal resources. The commenter r equested that EPA provide additional opportunities for public and tribal input, such as by requiring additional opportunities for tribal and public participation as part of a FIP.

Comment 2

. 5

. 5 : Two commenter s (0110 , 0111 ) requested that EPA provide a per mitting mechanism that provides certain ty for oil and gas development in NAAQS attainment areas, nonattainment areas, and in areas transitioning from attainment to nonattainment

. One commenter (0111) specifically requested provisions for sources that construct or modify in nonattainment areas to ensure that no rulemaking would be needed for sources after an area is redesignated to nonattainment. One commenter (0110) requested that EPA develop a permitting mechanism that voluntarily accounts for emissio ns and emissions reductions from non

- road engines, in order to provide certainty for compliance within nonattainment areas.

Comment 2

. 5

. 6 : Another commenter (0114) requested that the chosen permitting approach explain how compliance with the NAAQS is main tained, include calculation methodologies for estimating air emissions, identif y covered process equipment and emission units, and identif

y the applicable existing regulations.11

3.0 Regulation of New and Modified Sources vs. Existing Sources

3.1 Regulation of New and Modified Sources

Comment 3

. 1

. 1 : Several commenters (0105, 0106, 0107, 0113) indicated that EPA should focus its rulemaking efforts on streamlining minor NSR for new and modified sources. One commenter (0113) stated that any FIP developed by EPA should impose emissions control requirements on new and modified sources. Commenters (0105, 0106, 0107) argued that the immediate need is for a streamlined permitting process for new sources. One commenter (0105) stated that since emissions from new sources are low, they are likely to be offset by emissions reductions from existing sources due to naturally declining production in existing wells ; t he

commenter (0105) ref

erenced a Utah Division of Air Quality white paper supporting this statement. Another commenter (0106) indicated that EPA’s authority to regulate minor sources is limited, and as such EPA should focus on new and modified sources; the commenter argued that EPA and the courts have recognized the limited authority under the CAA for minor sources, referencing 42 U.S.C. § 7410(a)(2)(C) and Luminant v. EPA , 675 F. 3d 917 (5th Cir., March 26, 2012). One commenter (0105) stated that EPA acknowledged in the proposed General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country (January 14, 2014 Federal Register notice) that it would review air quality concerns unique to specific areas after issuance of the general permits . The commenter (0105) recommended that EPA take this approach in the development of a rulemaking by focusing on new and modified

sources.

Comment 3

. 1

. 2 : Two commenters (0106, 0113) commented on the appropriateness of including N ational E nvironmental P olicy A ct
, Endangered Species Act ( ESA ) , and National Historic Preservation Act ( NHPA ) requirements in a minor source permitting mechanism. Both commenters (0105, 0113) stated that EPA should not require any additional analyses under ESA or NHPA and should instead rely on the existing analyses and determinations conducted by other agencies. One commenter (0113) also requested that EPA provide guidelines for conducti ng any General Conformity evaluations under CAA section 176 for newly designated nonattainment

areas. The commenter (0113) stated that the General Conformity requirements apply one year after a nonattainment designation, and limit new economic activity. The commenter (0113) seeks the development of guidelines in the minor source permitting mechanism that w ould protect air quality while allowing economic growth under General Conformity, pending the development of an attainment plan.

3

. 2 Regulation of Existing Sources

3.2. 1 Support for regulation of existing sources

Comment 3

. 2

. 1.1 : Several commenters (0081, 0108, 0109, 0119 ) expressed support for the regulation of existing sources under a minor source permitting program (i.e., a FIP) for oil and n atural gas sources. Two c ommenters (0081, 0108) agreed with the ANPR that the cumulative impacts from existing sources could exceed that of large, new major sources. Some

c ommenters (0108, 0109) voiced concerns about the impact of unregulated existing sources on the health and welfare of tribal members. One commenter (0109) asserted that ther e is substantial12

evidence demonstrating that existing oil and gas sources are responsible for considerable air pollution emissions within Indian country, noting that in respons e to the Federal Indian Country Minor NSR rule, Region 8 received more than 6,40 0 registrations from true minor sources in the oil and natural gas sector. The commenter (0109) asserted that regions like the Uintah Basin are already exceeding the ozone NAAQS, and that even in regions where there are not yet NAAQS violations, emissions from oil and gas sources contribute to elevated ozone levels and HAP emission s

. The commenter (0109) stated that EPA’s approach must reduce emissions from existing sources in order for EPA to meet its duty to protect public health and welfare, in addition to improving visibility impairment and nitrogen deposition in national parks and wilderness areas. Another commenter (0081) indicated that they could provide modeling and monitoring data to EPA demonstrating air quality impacts to the National Park System. One commenter (0109) also argued that requiring existing source controls would reduce methane emissions and subsequent climate impacts.

Comment 3

. 2

. 1.2 : One commenter (0109) argued that EPA must regulate existing sources to fulfill goals directed by th e Obama administration, including recommendations from the Secretary of Energy’s Advisory Board that “measures should be taken to reduce emissions of air pollutants, ozone precursors, and methane as quickly as practicable. The Subcommittee support[ed] adop tion of rigorous standards for new and existing sources of methane, air toxics,

ozone precursors and other air pollutants from shale gas operations.” The commenter (0109) asserted that although EPA has established controls for new and modified sources in t he development of NSPS and NESHAP for the oil and gas sector, it has not met the Advisory Board recommendations to regulate methane or existing sources.

Comment 3

. 2

. 1.3 : One commenter ( 0119 ) asserted that EPA has the statutory authority to implement reg ulations for existing oil and gas sources. The commenter ( 0119 ) indicated that when issuing a FIP, EPA assumes the same rights and duties that would ordinarily fall to the state, including the authority provided in CAA section 110(a)(2) to adopt and enforce such pollution control measures as may be needed

. The commenter ( 0119 ) pointed to other recent FIPs for Indian country , such as the FBIR FIP that applies t o existing sources, as previous examples of EPA exercising this autho rity.

Comment 3

. 2

. 1.4 : One commenter (0108) expressed support for regulating existing sources, but stated that not all existing minor sources should be regulated in the same manner. The commenter (0108) requested that EPA target and prioritize the oldes t and most inefficient sources that most directly contri bute to air quality degradation, which w ould reduce burden to operators. The commenter (0108) stated that a FIP that includes all existing sources would compromise continued development on r eservation s

.

Comment 3

. 2

. 1.5 : Other commenters (0081, 0109, 0119 ) indicated that cost

- effective controls are available and should be applied to existing sources. One commenter ( 0119 ) pointed to Colorado ’s adopted controls for existing sources, including pneumatic controllers, storage tanks, and leak detection and repair (LDAR) requirements to address equipment leaks . T he commenter ( 0119 ) stated that C olorado ’s analysis found that these control measures wer e very cost effective. The same commenter ( 0119 ) pointed to an ICF study recommending cost

effective controls at existing sources; the report referenced by the commenter determined that13

approximately 90% of emissions from the oil and gas sector in 2018 wil l be attributable to facilities that were already in existence as of 2011.The commenter ( 0119 ) expressed concerns that any rule adopted will not be sufficiently protective of public health without addressing existing sources.

3

. 2.2 O pposition to regulation of existing sources

Comment 3

. 2

. 2.1 : Many commenters (0065, 0087, 0104, 0105, 0106, 0107, 0111, 0113, 0114, 0116) objected to the regulation of existing sources. Commenters (0107 , 0114 ) urged EPA to prioritize development of a streamlined permitting process implementing the Federal NSR Program in Indian Country and not include existing sources. One commenter (0107) indicated that to focus on regulation of existing sources prior to final izing a permitting mechanism for new and modified sources would detract from the accomplishments to date of the Federal Minor NSR Program in Indian Country

.

Comment 3

. 2

. 2.2 : Several commenters (0065, 0104, 0111, 0113, 0116) provided legal arguments challenging EPA’s authority to impose requirements on existing sources. Two commenters (0104, 0116) stated that although the CAA does authorize EPA to regulate existing sources through a FIP, those CAA provisions are not applicable to the ANPR. One of thes e commenters (0116) stated that the CAA is silent regarding EPA’s ability to impose mandatory requirements on existing minor sources located in tribal areas on a nationwide scale. Several

c ommenters (0104, 0113, 0116 ) disagree d with the conclusion in the A NPR that EPA may regulate existing sources under a FIP per the authority granted by CAA section 301(a) and CAA section 301(d)(4 )

. The c ommenters (0104, 0113 , 0116 ) argued that these provisions do not provide legal support for regulation of existing sources, but only for the regulation of new and modified sources. Commenters (0104, 0113, 0116) also asserted that the authority bestowed

upon s tates by CAA section 110(a)(2)(C) only permits s tates to regulate new and modified minor

sources. Specifically, commenters (0104, 0113) asserted that CAA section 301(a) does not provide EPA license to take any and all actions to achieve clean air; the commenters (0104, 0113, 0116) cited Michigan v. EPA , 268 F.3d 1075, 1083 (D.C. Cir. 2001) and Amer. Petrol. Inst. v. Browner , 52 F.3d 1113, 1119 (D.C. Cir. 1995) for evidence that EPA is limited to the authority provided by section s 110(a)(2)(C) and 301(d) for regulating minor sources. The commenters (0104, 0113) also noted that per those statu t es, new and modified minor sources may only be compelled to control their emissions only as necessary to attain the NAAQS

.

Comment 3

. 2

. 2.3 : Commenters (0104, 0113) further pointed out that EPA’s authority under section 301(d)(4) is limited to administering “provisions [of the Act] so as to achieve the appropriate purpose.” The commenters (0104, 0113) stated that the D.C. Circuit has twice rejected EPA’s attempt to use sections 301(a) and 304(d) to directly regulate sour ces in Indian country in Michigan, 268 F.3d at 1082 and Oklahoma v. EPA, 740 F.3d 185, 193 (D.C. Cir. 2014). Commenters (0104, 0113) also referenced Luminant Generation , 675 F.3d at 932, n. 12 (“The provisions of the CAA that apply to minor NSR require state regulation only insofar as is necessary to assure achievement of the NAAQS, see 42 U.S.C. §§ 7410(a)(2)(C), 7410(l)”), and argued that the Tenth Circuit has determined, in Sierra Club, 99 F.3d at 1556, that once an area has complied with the requirem ents to demonstrate attainment

, “the purpose of those requirements has been fulfilled and plan provisions outlining additional measures to achieve14

attainment would have little meaning.” Commenters (0104, 0113, 0116) reiterated that section 301(d)(4) does n ot expand EPA’s authority, but rather limits it; commenters (0104, 0113 , 0116 ) cited Virginia v. EPA , 108 F.3d 1397, 1409 (D.C. Cir. 1997), decision modified on reh’g , 116 F.3d 499 (D.C. Cir. 1997), and Michigan at 1083

- 84. One commenter (0116) added that EPA’s authority under CAA section 301(d)(4) to impose a FIP is further limited by section 302(y). Commenters (0104, 0113) objected to EPA’s proposal to implement requirements to create a growth margin that will allow further development in the oil and natu ral gas production segment as unnecessary to protect air quality. One commenter (0104) further asserted that only states and tribes may impose requirements that are more far

- reaching or more stringent than provided by the CAA. The commenter (0104) argued t hat the balance of power between the states and federal government is tipped towards the states, citing Fla. Power & Light Co. v. Costle , 650 F.2d 579,581 (5th Cir. 1981) and Luminant Generation at 921. The commenter (0104) noted that Colorado ’s requirements for existing minor sources in the oil and gas sector are state

- only requirements that were adopted pursuant to the Colorado Air Pollution Prevention and Control Act. The commenter (0104) urged that EPA does not have “maximum flexibility” to p romulgate regulations beyond what is necessary to at t ain the NAAQS and may no t regulate existing

sources

. The commenter (0104) stated that the CAA provides no authority for EPA to impose mandatory requirements on existing sources located in attainment area s.

Comment 3

. 2

. 2.4 : Some c ommenters (0104, 0116) also objected to EPA citing the TAR as further background for its authority to regulate existing sources, and reiterat ed that the TAR do es not expand EPA ’s authority

. Two c ommenters (0104, 0113) stated that the TAR explains that the Administrator will only exercise authority that has been “explicitly” granted under section s 301(a) and 301(d)(4). One commenter (0111) asserted that t he TAR does not provide EPA with greater aut hority to impose CAA

- based emission control programs in a tribal FIP than the authority that would be available to a tribe in the first instance. Two commenter s (0111

, 0116 ) stated that CAA section 110(a) authorizes measures to be adopted only “as may be

n ecessary or appropriate” to meet CAA applicable requirements

. One of these commenter s (0116) stated that EPA must make such a showing when it seeks to set standards for tribal lands in a FIP , and that EPA has not made such a showing in the ANPR.

Comment 3

. 2

. 2.5 : Commenters (0104, 0113 , 0116 ) also objected to EPA’s conclusion in the ANPR that it has broad “discretionary” or “gap

- filling” authority to regulate existing sou rces. The commenters (0104, 0113 ) assert that any exercise of gap

- filling auth ority is contingent on identifying a gap, and that EPA cannot rely on discretionary or gap

- filling authority to regulate facilities that lie outside the reach of the C AA (referencing La. Pub. Serv. Comm’n , 476 U.S. at 374). The commenters (0104, 0113 , 0116 ) stated that although EPA identified a nationwide gap in minor NSR permitting programs in Indian country in the development of the 2011 Federal Indian Country Minor NSR rule , EPA has not identified a gap in the ability of tribes to regulate existing minor sources. The commenters (0104, 0113 , 0116 ) further noted that there could not be a gap in the absence of relevant CAA provisions for regulating them ; therefore, EPA c annot not regulate existing sources. The commenters (0104, 0113) further stated that the 2011 Federal Indian Country Minor NSR rule was intended to establish a permitting mechanism for new and modified sources, and only al low existing sources to voluntarily participate in the permitting program and accept enforceable permit limits. One comment er (0111) reiterated that the Federal Minor NSR Program in Indian Country applies by its own terms only to new and modified15

sources. As such, the commenters (0104, 0113) argued that imposing mandatory requirements on existing sources is beyond the 2011 Federal Indian Country Minor NSR rule

.

Comment 3

. 2

. 2.6 : Two commenters (0107, 0111) stated that EPA has not demonstrated that there is a need to regulate existing sources on a national basis. One commenter (0111) pointed out that

, although the ANPR stated that existing emissions and air quality data suggest that oil and gas operations on tribal lands may be contributing to air quality deterioration or nonattainment on tribal lands and surrounding state lands, the ANPR also admits t hat the information available for these sources is in complete. The commenter (0111) asserted that the possibility that existing oil and gas sources may be causing or contributing to a NAAQS violation does not provide adequate support for the legal conclusi on that a national existing source program is necessary. The commenter (0111) further argued that EPA must make a much more definitive showing of adverse air quality impacts to justify existing source FIP requirements, taking into account the air quality, mix of emissions, and characteristics of each area in which it seeks to impose existing source controls. Another commenter (0107) stated that EPA has recently established NSPS

, subpart OOOO and NESHAP

, subpart HH for oil and gas sources, including recently proposed amendments to NSPS

, subpart OOOO. The commenter (0107) claim ed that the NSPS and NESHAP regulations would go a long way towards reducing oil and gas emissions in Indian country
, and that EPA has not demonstrated a need to tackle existing minor so urces.

Comment 3

. 2

. 2.7 : Two commenters (0105, 0107) urged EPA to develop an emissions inventory using emissions monitoring data prior to implementing a FIP. One commenter (0107) stated that EPA does not have the necessary data to demonstrate the need to regulate existing

sources. One commenter (0105) remarked that the CAA only authorizes EPA to include in a FIP what a state or tribe could include in its implem entation plan, and that states and tribal plans must be informed by emissions monitoring data. The commenter (0105) stated that EPA must gather emissions data in the same manner as a state or tribe until there is comprehensive data demonstrating the need f

or control of existing sources. Another commenter (0107) objected to EPA’s proposal to consider similar standards as promulgated in Colorado; the commenter argued that the Colorado regulations were state

- specific and cannot be extrap olated to all of Indian country

. The commenter (0107) also requested that EPA prepare its own economic and regulatory analyses and not rely on information applicable to state

- only rules.

Comment 3

. 2

. 2.8 : Five commenters (0106, 0107, 0111, 0113, 0116) asserted that EPA

must es tablish an attainment plan prior to regulating existing sources. The commenters (0106, 0116) urged that to regulate existing sources, EPA must make a d etermination that regulation is needed to attain the NAAQS and develop an attainment plan for the nonattainment areas in which the sources are located , and only for the relevant nonattainment pollutants

. One commenter (0116) stated that EPA is limited to what it can mandate for states or tribes under CAA section 110(a)(2)(c)

. C ommenter s ( 0106, 0116) st ated that EPA can only promulgate regulations to address sources that “cause and contribute to nonattainment”, which requires an

area

- specific analysis to identify the emission inventory, modeling, and other data as well as the specific regulations necessa ry. Commenters (0106) remarked that EPA should address major sources first, and then minor new sources and lastly, minor existing sources. One commenter16

(0106) noted that when developing an attainment plan, EPA would also be able to address emissions from mobile sources, both new and existing

.

Comment 3

. 2

. 2.9 : Two commenters (0106, 0107) asserted that by seeking to adopt regulatory requirements for existing sources from only one specified industry across all Indian country nationally, EPA would be inappropriately setting nationally applicable standards of perfor mance on existing sources in contravention of section 111(d) of the CAA. The commenters (0106, 0107) remarked that even in the few areas where the CAA authorizes regulation of existing sources, the CAA also imposes threshold criteria that EPA must meet to regulate existing sources. The commenters (0106, 0107) noted that section 111(d) does not directly authorize EPA to establish standards of performance for existing sources, but that EPA would only be able to directly regulate existing sources if it issued emission guidelines first, allowed states to develop programs, and then only stepped in where states failed to implement programs.

Comment 3

. 2

. 2.10 : Other commenters ( 0065, 0107, 0111, 0113 , 0114 ) stated that EPA must evaluate the need for any regulation of existing minor sources in each tribal area on a case

by

- case basis. Commenters (0113) noted that there are extensive differences in air quality impacts, geology, operational practices and equipment, and economics in each basin, and that the appropriate level of control for existing sources should be developed on a basin or field

- specific level only after a nonattainment designation. Three commenters (0065, 0111, 0114) stated that regulations for existing sources must be developed on a case

- by

- case basis for locations where available data indicate that such operations may be causing or contributing to nonattainment with NAAQS. One commenter (0114) expressed the concern that if EPA did not account for differences in between basins, EPA could risk under

- or over

- regulation of a particular area. The commenter (0114) pointed to an example of the Denver

- Julesburg Basin and the Northern San Juan Basin in Colorado, which share few similarities

. The commenter (0114) lamented that EPA would require more time to develop requirements targeted to specific locations for existing sources, which could delay promulgation of a permitting mechanism for new and modified sources. Another commenter (0065) asserted that

, because EPA “stands in the shoes of the tribes” when it issues a FIP for Indian country , it cannot regulate existing sources on a national level

.

Comment 3

. 2

. 2.11 : Three commenters (0106, 107, 0116) disagreed with EPA’s citation of the FBIR FIP as precedent for adopting a FIP in Indian country . Commenters (0106 , 0116 ) stated that the FBIR FIP was authorized under the major and minor NSR programs under the CAA, and that the sources covered by the FBIR FIP were new sources, except to the extent that sources needed to secure minor existing source status to ena ble any construction to be considered minor. The commenters (0106, 0116) also noted that in the case of FBIR FIP, the North Dakota Department of Health had a long

- standing set of control requirements that were set to reduce emissions to below major source levels and allowed companies to avoid PSD requirements. The commenters (0106, 0107, 0116) contended that the FBIP FIP filled the regulatory gap for operators on tribal lands in North Dakota who could no t establish a site as a minor source, and did not address NAAQS. The commenters (0106, 0116) also argued that EPA did not justify the FBIR FIP on the basis o f emissions data or air quality. The commenters (0106, 0107, 0116) stated that because similar considerations are not present in all tribal areas, EP A cannot use the
FBIR FIP as justification for regulation of existing sources

.17

Comment 3.2.2.12: Two commenters (0106, 0107) stated that regulation of existing sources is inconsistent with EPA’s previous decisions in the proposed Federal Minor NSR Program in Indian Country

. The commenters (0106, 0107) stated that in the final rule published in 2011, EPA decided to only require existing minor sources to register with EP A . T he commenters (0106, 0107) state d that EPA decided not to regulate existing mi nor sources because EPA believed that ( 1) doing so would overwhelm limited EPA resources, and ( 2) it “believe[s] that subjecting all minor sources to this program is not necessary to achieve the NAAQS , as demonstrated by state minor NSR programs. ” The comm enters (0106, 0107) argued that EPA should not revisit the issue of regulating existing sources until it has completed an inventory analysis and has determined that regulation would not overwhelm EPA resources. One of these commenters (0107) stated that if EPA reverses the previous position with respect to only one industry, it will present inconsistent messaging and policy. One commenter (0106) reiterated that EPA should not attempt to address issues outside of the scope of the Federal Minor NSR Program in Indian Country

.

Comment 3

. 2

. 2.13 : Two commenters (0087, 0106) stated that EPA should not regulate existing sources because oil and gas production and corresponding air emissions are expected to decrease, not increase, in many areas of Indian country

. Commenters (0106) argued that EPA cannot assume that all tribal areas are identical, based on differences in the age of operations and production in different tribal areas; the type of production (oil and gas); the ambient air quality of the area of Indian country ; and numerous other factors. One commenter (0087) stated that there is no widespread growth of the oil and gas production segments in La Plata County. The commenter (0087) also noted that a significant portion of the active wells in La Plata Count y are coalbed methane wells as opposed to oil wells, which have a lower return on investment; the commenter requested that EPA conduct an economic analysis that reflects these differences. One commenter (0106) stated that EPA has not presented information demonstrating that emissions from oil and gas sources in hydrocarbon producing basins within Indian country are increasing, or will increase in the foreseeable future; or the rate at which those sources and the relevant emissions from those sources are exp ected to increase. The commenter (0106) also argued that EPA has not assessed the extent to which growth in Indian country is similar to or different from growth in states on which EPA is considering cost

- effectiveness control measures (such as Colorado).

3.2. 3 I mpacts and costs for existing sources in Indian Country

Comment 3

. 2

. 3.1 : Seven commenters (0087, 0104, 0105, 0106, 0107, 0113 , 0116 ) expressed concerns regarding the costs and economic impacts of regulation of existing sources in Indian country

. Two commenters (0106, 0113) disagreed with the ANPR reference to Colorado’s February 201 4 rulemaking as an example of cost

- effective emissions reductions that could be applie d to existing sources in Indian country

. One commenter (0106) stated that EPA inap propriately assumes, without any analysis, that the benefits and costs analyzed by the State of Colorado are transferrable to all of Indian country

. The commenter (0106) asserts that cost

benefit analyses must be based on considerations specific to locatio ns including area specific emission factors, incremental costs from the baseline requirements, location and accessibility, and other factors. The commenter (0106) note d that Colorado’s recent regulations expanded18

existing regulatory requirements for both n ew and existing minor sources and in attainment and nonattainment areas, whereas minor oil and gas minor sources in Indian country have not been subject to existing regulatory requirements

. Another commenter (0113) stated that the Colorado rulemaking is no t applicable to operations in Indian country because Indian country sources tend to be more remote and removed from infrastructure including electrical power, and

, therefore

, more widely dispersed

.

Comment 3

. 2

. 3.2 : One commenter (0106) further argued that Colorado’s emissions inventory, assumptions, and analyses in the February 2014 rules were misleading with respect to impacts to sources, particularly existing sources in attainment areas. The commenter (0106) argued that t he Colorado cost

- benefit analysis relied upon assumptions containing multiple flaws, result ing in an overstatement of benefits and understated costs. For example, the commenter (0106) argued that the Colorado analysis inflated the oil and gas VOC inventory using a unreliable capture efficiency factor; that inaccurate emission factors were used; that the analysis failed to account for production declines; and that it failed to consider that the costs of pollutio n control requirements would be disproportionately higher for facilities with lower levels of uncontrolled emissions than those with higher levels of uncontrolled emissions

. The commenter (0106) also stated that new information would soon be available on t he “real world costs” associated with the Colorado regulations as operators implement the rule ; the commenter (0106) stated that initial estimates and information related to implementation of Colorado’s new regulations indicate that the costs will be highe r than anticipated. The commenter (0106) asked that EPA not implement similar requirements on existing sources until more accurate information becomes available.

Comment 3

. 2

. 3.3 : T hree commenter s ( 0105, 0106 , 0113 ) remarked that EPA must assess

area

- specific impacts and costs for existing sources in Indian country , including soliciting information from industry on available cost

- effective emission reduction measures. T wo commenters (0106, 0113) requested that EPA delay consideration of requirements o n existing sources while this information is collected.

Comment 3

. 2

. 3.4 : One commenter (0106) asked that in developing a cost

- benefit analysis, EPA should not consider not only the impacts from individual requirements, as was done in Colorado, but consider the impacts collectively from any requirements. The commenter (0106) expressed concern that Colorado’s cost

- benefit analysis failed to adequately analyze impacts to marginal wells; the commenter stated that in certain tribal areas, marginal wells represent a significant number of wells. The commenter (0106) stated that imposing requirements on these existing sources could require operators to shut

- in and abandon the wells

. C ommenter s ( 0106, 0113) asked that EPA consider ambient air quality, product ion rates across fields and basins , and other relevant factors in evaluating cost

- effectiveness.

Comment 3

. 2

. 3.5 : Other commenters ( 0104, 0107) stated that regulation of existing oil and gas sources in Indian country would be unduly burdensome to operators, particularly to tribes with significant existing operations on their tribal lands. Commenters (0104) claimed that regulation of existing sources would have varying impacts on the economic and environmental interests of in dividual tribes in different locations. One commenter (0107) express ed concerns that inconsistencies between requirements applied to existing sources within Indian country and19

outside of Indian country could adversely affect tribes , especially in areas wit h marginal wells or declining production where existing operators may discontinue operations

. One commenter (0087) specifically expressed concern regarding operations in La Plata County, where the commenter indicated that a decrease in oil production could result in decreased income from property taxes, which would negatively impact services available to communities.

Comment 3

. 2

. 3.6 : Some commenters (0104) stated that regulating existing sources is more expensive than regulating new or modified sources; o ther commenters (0105, 0116) stated that using a FIP to control existing minor sources would stymie economic growth even in attainment areas. One commenter (0105) noted that the economics are very different for retrofitting controls on existing sources vs. installing emission controls on new sources . T he

commenter (0105) claimed that requiring existing sources that are not making any changes to comply with the same type of control technology as a new or modified source would place an enormous burden on thes e sources

.

3

. 3 Establishing applicability thresholds for existing sources

3

. 3.1 Recommendations for applicability thresholds

Comment 3

. 3

. 1.1 : Some commenters (0081, 0109) recommended that EPA regulate all existing sources and equipment without promulgating an applicability threshold. Two commenters (0081, 0109) stated that this approach would ensure cumulative emissions reductions from the large number of minor sources in Indian country . One commenter (0081) stated that this would avoid difficulties associated with source aggregation. Another commenter (0109) recommended that EPA not exempt sources that already comply with a NSPS or NESHAP ; the c ommenter further stated that the requirements that EPA should promulgate via a FIP should go beyond the existing NSPS or NESHAP requirements.

Comment 3

. 3

. 1.2 : One commenter (0111) recommended that EPA incorporate the lower

- level applicability thresholds from the Federal Indian Country Minor NSR rule for attainment and nonatta inment areas (40 CFR 49.153(c))

. Another commenter (0114) requested that EPA consider allowing some or all emissions applicability thresholds to be based on estimated actual emissions . One commenter ( 0119 ) suggested that EPA use the NSPS

, subpart OOOO as a model for determining applicability for existing sources for the FIP; subpart OOOO defines “facilities” to consist of individual pieces of equipment (such as pneumatic controllers and compressors), rather than attempting to define facilities according to physical boundaries or emission thresholds. The commenter ( 0119 ) stated that t his approach would work well for facilities in the oil and gas sector, which vary significantly in size and complexity and comprise a large number of relatively small sources.

3. 3. 2 Making Stationary Source Determinations

Comment 3

. 3

. 2.1 : One commenter (0111) recommended that EPA consider source aggregation consistent with Summit Petroleum v. EPA , 690 F.3d 733 (6th Cir. 2012). Specifically, the commenter (0111) requested that operations should be considered part of the20

same stationary sourc e only when: (1) they share the same major two

- digit SIC code; (2) they are under common ownership or control; and (3) they are adjacent or contiguous.

4.0 Uniform Application of a FIP or G eneral P ermit v. Application by Source Location

4.1 Support for national uniform requirements

Comment 4.1.1 : Two commenters (0114, 0119 ) suggested that EPA should apply the FIP uniforml y to all tribal lands where oil and gas are taking place, and not only in nonattainment areas. The commenters (0114, 0119 ) agreed with the ANPR that uniform standards that apply to all sources are less complex to establish and implement than requirements that vary. One commenter ( 0119 ) also noted that control technologies are broadly applicable and would not require site

- specific per mitting. The commenter ( 0119 ) asserted that a uniform FIP would increase regulatory certainty for operators, and that to write a rule that varies by region or basin, EPA would need additional time which would create delays in compliance and the correspondi ng public health benefits. The commenter ( 0119 ) also stated that comprehensive and uniform emission standards for oil and gas sources are also consistent with the basic purposes of NSR; the commenter asserted that the CAA allows for EPA to issue standards beyond the minimum requirement s of the CAA in public health.

Comment 4.1.2 : Another commenter (0114 ) supported determining the air quality needs of each reservation based on reservation

- spec ific air quality monitoring or through monitoring data gathered from neighboring states, but recommended against development of a different set of regulations for individual areas of Indian country

. Instead, t he commenter (0114) recommended a tiered permitting approach that would allow EPA to draft one set of regulations that apply across Indian country

, but als o limit the availability of less

- stringent permits to only thos e reservations with clean air, or alternatively, develop a reservation

- specific general permit for area s of concern

.
4.2 Opposition to applying a General P ermit or FIP uniformly across Indian Country

4.2.1 EPA lacks authority to promulgate a nationwide FIP without tribal approval

Comment 4.2.1.1 : Two commenters (0104, 0116) insisted that EPA lacks the authority to promulgate a nationwide FIP without the authority of each tribe. One commenter (0104) argued that EPA is granted authority to play two distinct roles in Indian country under the CAA

– eit her an administrative, superintending, or “ministerial” role (i.e., setting standards, providing oversight and assuring compliance with the minimum requirements of the CAA, as noted in Michigan , 268 F.3d at 1083, Sierra Club , 99 F.3d at 1556, Luminant Generation , 675 F.3d at 930, and Virginia , 108 F.3d at 1410), or an implementation role in which EPA implements tribal programs “in the shoes of” the tribe or state (citing Michigan at 1083; Oklahoma , 740 F.3d at 193). The commenter (0104) stated that the ANPR cites section s 301(a) and 301(d) as source s of authority, which relate to both EPA’s administrative role and its implementation role; the commenter stated that EPA cannot claim both, and requested that EPA clarify whether it is acting in a superintend ing or an implementation role

.21

Comment 4.2.1.2 : One commenter (0116) expressed that EPA is limited to implement tribal air quality programs where : ( 1) the tribe has failed to submit a Tribal Implementation Plan ( TIP ) for approval; ( 2) EPA does not approve a submitted TIP; or ( 3) EPA determines a tribe is not adequately administering or enforcing an approved TIP. The commenter (01 16 ) , referencing Oklahoma v. EPA , 740 F.3d 185, 193 (D.C. Cir. 2014), indicated that if EPA seeks to impos e air quality programs beyond the authority provided by the CAA, it must have the authority from the sovereign tribe, and its authority cannot exceed that of a tribe. Another commenter (0104) emphasized that when acting “in the shoes of a tribe”, EPA must maintain a balance of cooperative federalism and consult on an individual basis with affected tribes and respect tribal self

- determination. One commenter (0104) noted that tribal consultation is federally required, as noted in Executive Order 13175, Consul tation and Coordination With Indian Tribal Governments, and EPA’s Policy on Consultation and Coordination with Indian Tribes, (May 4, 2011). The commenter (0104) also argued that in order to reach a “level playing field”, each tribe that will be affected b y the FIP must be consulted and allowed to influence the terms of the FIP based on the tribes’ policies, economic development goals, and specific air quality scenario. The commenter (0104) stated that regulating Indian country as a whole would contribute t o an unequal playing field by denying tribes the autonomy enjoyed by states.

Comment 4.2.1.3 : C ommenter s ( 0104, 0116) stressed that EPA’s FIP authority is limited to acting in place of a single state, and by extension a single tribe. The commenters (0104, 0116) urged that any requirements beyond the explicit provisions of the CAA must be based on an individual tribe’s decision

- making authority. Commenters (0104) further urged that EPA must represent the sovereign interests of the tribe in any FIP it crafts on the tribe’s behalf ( citing decisions from Luminant Generation , 675 F.3d at 922, Union Elec. Co. v. EPA , 427 U.S. 246, 250 (1976); and Fla. Power & Light , 650 F.2d at 587 ) . One commenter (0116) reasoned that EPA cannot exceed its statutory authori ty on a nationwide scale and implement a FIP applicable to Indian country in its entirety, when only some or a few Indian tribes have asked or authorized EPA to do so.

4.2.2 EPA must evaluate individual trib al areas according to procedural requirements of SIPs

Comment 4.2.2.1 : Two commenters (0104, 0105) contended that EPA must evaluate each individual tribal area in accordance with the procedural requirements for a SIP prior to considering national uniform standards. The commenters (0104, 0105) asserted that EPA must treat tribal lands in a similar manner as states and follow the requirements of the CAA and 40 CFR part 51, Appendix V for developing an implementation plan that is customized to each tribal area. Comment ers (0104, 0105) requested that EPA ( 1) create a record showing the factual basis for the FIP; ( 2) determine the attainment or nonattainment status of air quality in each affected area, including conducting ambient air quality monitoring; ( 3) evaluate the contributions of the relevant sources and type of sources; and ( 4) develop emission inventories, and an emissions budget based on photochemical grid modeling and or weight of evidence. One commenter (0105) requested that the FIP address the following in ea ch tribal area : whether the area already has FIP and whether the FIP is effective in reducing emissions, whether the area has been designated nonattainment with respect to a NAAQS, whether additional monitoring is required, what pollutants and emission sou rces are contributing to the violation and to what degree, how much reduction is needed to achieve compliance, and what is the most cost effective way to achieve those emission reductions. The commenter (0105) asserted that any FIP should22

be tailored to re flect the different air sheds and unique emission sources located in each individual area.

4.2.3 EPA must adopt different control strategies for attainment and nonattainment areas

Comment 4.2.3.1 : Four commenter s (0104, 0106, 0107, 0113) emphasized that EPA must not establish uniform requirements throughout Indian country but must distinguish between and adopt different control strategies for attainment and nonattainment areas. One commenter (0107) argued that EPA must distingu ish between attainment and nonattainment areas in order to satisfy the requirements of the CAA. The commenter (0107) noted that CAA section 107(d) requires states to distinguish between attainment and nonattainment areas and to accordingly set emission control strategies that are necessary or appropriate to meet the NAAQS in each area. The commenter (0107) stated that setting control requirements according to attainment status is necessary to ensure that EPA only im poses controls that are cost

- effective and to ensure consistency with the CAA

. The commenter (0107) also asserted that the CAA dictates that a SIP must only include emission sources for which the control may be reasonably shown to aid the nonattainment are a in coming into compliance with the NAAQS. The commenter (0107) stated that for this reason, areas in attainment must not be treated identically to areas in nonattainment absent a demonstrated need. The commenter (0107) argued that EPA cannot treat all of Indian country the same without demonstrating that additional emissions controls will help prevent NAAQS violations in the attainment areas

. Another commenter (0104) stated that EPA cannot require minor sources to reduce emissions beyond what is needed to attain the NAAQS; the commenter asserted that any requirements under a nationwide permitting plan or FIP must not be more stringent than required for the area with the least impaired air quality. Two commenter s (0104 , 0113 ) expressed concerns that imposin g a more stringent standard nationwide would

over

- regulate or impose unauthorized restrictions on unimpa ired (i.e., attainment) areas. Another commenter (0107) expressed concern that if EPA adopted a uniform approach that applied in all areas of Indian cou ntry , the burdens associated with compliance with a FIP, general permit , or permit by rule may increase in parts of Indian country with lower emitting facilities (particularly attainment areas), while the cost

- effectiveness of the controls and inspection may decrease

. The commenter (0107) insisted that EPA cannot impose requirements on minor so urces in Indian country simply because those requirements have been adopted elsewhere, are cost effective, or might create a future growth margin

.

Comment 4.2.3.2 : One commenter (0107) expressed that implementing a FIP, general permit , or permit by rule that does not distinguish between attainment and nonattainment areas would disregard the individualized concerns of operators from different basins

, as well as the unique characteristics of each basin within Indian country. Two commenters (0106, 0107) not ed that these areas are unique with respect to the combination of geography, topography, meteorology, population, ambient air quality, the content of the oil and gas resources, and the expected levels of growth, and that these factors must be considered wh en determining emissions controls. One commenter (0104) pointed to differences between Texas and California summer ozone issues, which are caused by hot weather, NO x , and VOCs, and Wyoming winter ozone issues associated with snow cover; the commenter expressed that each unique NAAQS violation should have its own set of area

- specific solutions. One commenter (0107) further contended that EPA must conduct air quality mo deling to support the use of additional control measures in attainment areas and to show that such areas would benefit from such measures. The commenter23

(0107) stated that, with respect to any existing sources, the requirements implemented must contribute to bringing the nonattainment area into compliance with the NAAQS. The commenter (0107) requested that, to determine boundaries for nonattainment areas, EPA must consider air quality data, emissions

- related data, traffic patterns and population density, me teorology, geography/topography, and jurisdictional boundaries. One commenter (0113) argued that using information from nearby states as a surrogate to address the lack of air quality monitoring data is inappropriate. The commenter (0113) stated that air q uality impacts are related to a number of

area

- specific factors, including topography, meteorology, snow cover, and pollutants, and that applying state monitoring data that reflect the characteristics of a specific area is arbitrary.

4.2.4 EPA Should Deve lop Reservation

- Specific FIP s

Comment 4.2.4.1 : Two commenters (0108, 0113) recommended that EPA develop reservation

- or region

- specific FIPs. These commenters (0108, 0113) noted that oil and gas sources in Indian country are characterized by vast differences between basins and fields, which impact sources, emissions, and control strategies.

The commenters (0108) expressed concerns th at the variation and disparity in state minor source permitting rules and tribal concerns would not be accurately represented in a uniform national rule; the commenters (0108) also stated that a national FIP would lack the flexibility and streamlining that is available in many state permitting programs. The commenters (0113) recommended that FIPs be developed for each reservation to account for differences in fields and basins and potential for adverse air quality impacts. One commenter (0113) recommended t hat where monitoring data demonstrates that an area is approaching or has reached nonattainment status, EPA should develop a reservation

- specific FIP addressing new, modified, and existing

sources. The commenter (0113) pointed to Wyoming’s site

- specific pe rmitting program (based on presumptive B est Available C ontrol T echnology requirements) as an example of tailoring requirements to different areas. The commenters (0108) asserted that a reservation

- specific approach would protect tribal interests and regulate emissions in a fair manner. The commenters (0108) noted that a regional or reservation

- specific FIP would level the playing field by accounting for particular air quality concerns and permitting requirements of surrounding jurisdictions. The commenters (0108) requested that EPA address the individual concerns for each tribe’s reservation or region, using the F BIR FIP as a model for other reservati ons.

Comment 4.2.4.2 : One commenter (0108) recommended that EPA should at least develop unique FIPs for major oil and gas producing tribes such as the Ute Indian Tribe, taking into account the surrounding state’s oil and gas regulations. The commenter (0 108) specifically requested a FIP for the Uintah and Ouray Reservation. The commenter (0108) expressed that a FIP developed solely for the Ute Indian Tribe is necessary to account for ozone problem s unique to the Uintah Basin. The commenter (0108) explaine d that

, although the t ribe has been working with the oil and gas industry to reduce emissions, episodic and voluntary seasonal controls are not enough to effectively reduce emissions in the area. The commenter (0108) requested that a reservation

- specific F IP be established prior to a nonattainment designation to address emissions that cause or contribute to a NAAQS or PSD increment violation. The commenter (0108) also expressed interest in exploring the possibility of working towards a TIP for the Ute India n Tribe.24

4.2.5 Appl ication of uniform requirements would impact tribal economies

Comment 4.2.5.1 : Two commenters (0104, 0108) expressed concern that implementation of national uniform standards would slow review and approval of oil and gas permits, impact t ribes’ abilities to expand operations, and decrease the revenue the t ribe s are able to earn from tribal lands. The commenters (0104, 0108) asserted that individual tribes should be allowed to determine whether more stringent requirements are necessary for their location, which allows tribes to accommodate both environmental protecti on and economic development. One commenter (0108) attested that the ability to benefit from its natural resources has been limited by multiple federal agencies overseeing oil and gas development on r eservation s and delays in the approval process; the comme nter (0108) expressed fears that if EPA applied the same standards nationwide, companies would limit their operations or leave the r eservation s . The commenter (0108) explained that this could lead to job cuts and diminish revenue used to fund tribal govern ments and provide services to tribal members. The commenter (0108) noted that

t ribes rely on revenues from oil and gas development as the primary source of funding for governmental services including natural resources, land, fish and wildlife management, h ousing, education, emergency medical services, public safety, and energy and minerals management.

5.0 Activities and Pollutants to Regulate

5.1 Activities/Sources

Comment 5.1.1 : One commenter (0113) agreed with the ANPR that the vast majority of permitted sources would be from the production segment and that EPA should focus the chosen permitting mechanism on production sources. Another commenter (0107) requested that EPA use a permit by rule to cover all potential sources of emissions from oil an d gas production operations, including temporary flaring of associated gas; storage tanks; storage tank emissions control devices; dehydrators; engines; truck loadout; fugitive emissions; and other associated and related equipment. The commenter requested that EPA not create multiple general permits or permits by rule for oil and gas sources.

Comment 5.1.2 : Five commenters (0081, 0105, 0107, 0109, 0111) recommended that EPA address mid

- stream sources, including compressor stations and gas processing plants, in the development of a FIP, general permit , or permit by rule. One commenter (0081) noted that compressor stations and gas processing plants may be permitted as minor sources just below the thresholds for major sources. Two comm enters (0081, 0109) stated that these sources may contribute significantly to total oil and gas industry emissions. One commenter (0081) pointed to the 2011 National Emissions Inventory for Wyoming, which indicated that in Wyoming minor

source compressor s tations represent 39% of total oil and gas emissions of NO x and 49% of total oil and gas emissions of VOC, and minor source gas plants account for 36% of total oil and gas NO x and 13% of total oil and gas VOC. Two commenters (0105, 0111) supported streamli ning midstream source category permitting for natural gas processing plants. One commenter (0105) supported streamlining permits for midstream natural gas processing plants because it would reduce the amount of time required for gatherers to install the in frastructure to support production facilities. Two c ommenter s (0105, 0111) explained that natural gas processing plants typically have similar types of emission sources as compressor stations and are frequently true or25

synthetic minor sources. One commente r (0105) provided a detailed description of the types of equipment and emissions sources anticipated at natural gas processing plants (e.g., natural gas fired engines for natural gas compression, natural gas fired engines for propane refrigerant compressio n, heaters for molecular sieve dehydration bed regeneration, heaters for amine treating systems, amine treaters to remove hydrogen sulfide and/or carbon dioxide (CO 2 ) , storage vessels, and piping components) and compressor stations (e.g., multiple natural gas fired compressor engines and/or turbines, small heaters, triethylene glycol (TEG) dehydration units, storage vessels, and fugitive components). The commenter (0105) explained that most common equipment types installed at midstream natural gas processin g plants have applicable standards, monitoring, recordkeeping, and reporting requirements under NSPS and NESHAP regulations necessary to ensure compliance; the commenter urged that a minor source permitting program would not need to recreate these requirem ents, but could incorporate federally enforceable numeric emission limits for criteria and HAPs to establish a source as a synthetic minor.

Comment 5.1.3 : One commenter (0114) suggested that EPA use the emission inventory developed by the Western Regiona l Air Partnership (WRAP) and the Independent Petroleum Association of the Mountain States (IPAMS) in their Phase III regional oil and gas (O&G) emission inventory project to determine which sources are significant and develop a list of equipment that could be covered under a permitting mechanism.

Comment 5.1.4 : One commenter (0111) requested that EPA specifically exclude mobile sources from the permit for oil and gas operations. The commenter (0111) contended that EPA described the oil and natural gas production segment in the ANPR as including “well drilling, completion and workover processes and include d all the portable non

- self

- propelled apparatus associated with those operations

. ” The commenter (0111) stated that this could potentially describe mob ile sources, which are not included under minor NSR or NSR generally . The commenter (0111) also noted that the drilling and completion of a well are operations associated with the construction of a stationary source, not the operation of a stationary sourc e, and these types of emissions are not typically included in PSD and Title V P rograms; the commenter (0111) explained that these emissions are largely attributable to mobile sources and are not subject to the CAA stationary source programs.

5

. 2 Pollutants and Impacts

Comment 5.2.1 : Several commenters (0081, 0109, 0111, 0113) requested that EPA address all criteria pollutants under the Federal Indian Country Minor NSR rule in the development of a FIP, general permit , or permit by rule. One commenter (0081) stated that EPA should include all criteria pollutants in the rulemaking to limit the number of regulations that the oil and gas sector would need to comply with; the commenter remarked that if the rule is restrict ed to VOC and NO x , then oil and gas minor sources would also have to comply with regulations for the remaining criteria pollutants under the FIP for NSR for m inor s ources in Indian c ountry. Two commenters (0111 0113) agreed with the ANPR that there is no a dvantage to regulating only a portion of the regulated NSR pollutants through a FIP or general permit and allowing other pollutants to remain subject to site

- specific permitting through the Federal Indian Country Minor NSR rule

. One commenter (0109) urged that EPA must include all regulated NSR pollutants to protect public health and welfare. Specifically, the commenter (0109) noted26

that NO x and VOC are precursors to ozone that must be addressed to ensure the health of communities , to improve visibility in Class I areas, to reduce methane emissions, and to reduce emissions of organic HAP and hydrogen sulfide. Another commenter (0114) requested that EPA only include criteria pollutants for which there is a NAAQS and that are common pollutants from oil and gas operations.

Comment 5.2.2 : One commenter (0081) requested that, in the develop ment of a FIP, EPA consider addressing existing problems

, including monitored violations of the ozone standard in eastern Utah and western Colorado, monitored ambient ozone values that are just below the NAAQS for ozone at Mesa Verde National Park, and modeled violations of the annual NO 2 Class I increment in Me sa Verde National Park. The commenter (0081) further recommended that EPA include measures to reduce emissions that impact visibility and contribute to nitrogen deposition, in addition to criteria pollutants; the commenter noted that the CAA requires visib ility and other Air Quality Related Value impacts be considered in NSR.

Comment 5.2.3 : Three commenters (0106, 0111, 0114) requested that EPA include limits for HAPs. Two commenters (0106, 0114) noted that the regulatory gap in Indian c ountry that EPA pro poses to fill by establishing a minor NSR program also exists for sources that could avoid major source status for HAPs; one commenter (0106) stated that EPA has authority to create a minor HAP source program. Another commenter (0111) requested that the pe rmitting mechanism apply to HAPs, but only as needed to establish sources as synthetic minor under CAA section 112. One commenter (0114) suggested that EPA should also consider greenhouse gases (GHG) and allow sources the option to request synthetic minor limits for both HAP and GHG.

6.0 Developing Appropriate Control Requirements: General Permit and/or Permit by Rule Approach

Comment 6.1 : Several commenters (0065, 0105, 0107, 0110, 0114) weighed in on the appropriate control requirements that EPA should consider in establishing a general permit and/or permit by rule approach. Two commenters (0105, 0110) requested that EPA develop control requirements that provide flexibility in the technology that may be used. Commenters (0105, 0110) requested that EPA avoid mandating any particular technology or approach to achieve emission reductions, in order to allow for companies to assess economic and technical feasibility of certain design and control on a case

- by

- case basis. One commenter (0105) requested th at EPA allow customizable, federally enf orceable limits that create incentives for sources to control or limit emissions; the commenter stated that many state

- level streamlined permitting programs allow sufficient flexibly for site

- specific design consider ations while incorporating adequate conditions and review to protect air quality. Another commenter (0110) pointed to the State of Colorado as an example, which has a g eneral p ermit that includes a standardized emission factor, but also allows for a company to use more accurate, site

- specific emission factors depending upon the type of engineering design and control used at the location.

Comment 6.2 : Two commenters (0065, 010 5) requested that EPA develop a permit that treats synthetic minor sources the same as true minor sources, and allows for a process to quickly27

establish a source as a synthetic minor source. One commenter (0105) noted that state minor NSR programs do not d istinguish between true minor and synthetic minor sources for applicability, and have established both general permits and permit by rule to authorize synthetic minor sources. The commenter (0105) urged that this approach provides permittees with consisten cy, predictability, and efficiency and reduces the burden on the permitting authority.

Comment 6.3 : One commenter (0105) requested that EPA structure a program to allow federally enf

orceable emission limits to be established during the application or re gistration phase, such as through a self

- certification process or through use of a response letter confirming authorization. The same commenter (0105) requested that EPA design a process that would make criteria and HAP limits federally enforceable as requ ested by an applicant, including for both criteria pollutants and HAPs. The commenter (0105) provided an example of a rich burn engine subject to NSPS , subpart JJJJ that requires a catalyst control device; in the commenter’s example, the operator of the en gine would be able to request and document federally enforceable, numeric HAP emission limits which could allow the site to be an area source under 40 CFR p art 63

, NESHAP standards. The commenter (0105) requested that EPA allow operators to voluntarily ado pt emission limits in order to avoid becoming subject to a n NSPS or NESHAP standard; the commenter (0105) emphasized that “virtually every” state

- administered program allows this approach. One commenter (0065) requested that a permit be tailored so that it imposes only such control measures as are needed to establ ish and maintain synthetic minor

status.

Comment 6.4 : One commenter (0110) specifically requested that the permit provides federally enforceable control recognition for tanks. The commenter (0110) stated that currently, tank controls are either recognize d through individual permits, through the oil and natural gas NSPS, subpart OOOO, or not at all. The commenter (0010) requested that the final permitting mechanism recognize tank controls for both HAP and criteria pollutant reductions.

Comment 6.5 : One commenter (0114) supported the use of throughput limits as a surrogate for annual ton per year allowable emissions limits as an alternative option for demonstrating compliance. The commenter (0114) specifically asked that EPA account for the compositio n of oil and natural gas in any throughput limit used as a surrogate , especially for VOC; the commenter remarked that composition varies from basin to basin and these differences correspond to the quantity and type of emissions released at any single throu ghput.

Comment 6.6 : One commenter (0114) stated that the control requirements for new and modified sources in a general permit or permit by rule should be based on the requirements of NSPS and NESHAP regulations. The commenter (0114) further stated that , if EPA includes existing sources under a FIP or the Federal Minor NSR Program in Indian Country , the control requirements for those sources must consider the emissions reductions versus emissions control costs. The commenter (0114) requested that EPA provide a cost

- benefit analysis for the requirements of the general permit or permit by rule and include an “off ramp” to exempt sources that demonstrate the cost per ton of pollutant removed is too expensive.

Comment 6.7 : Two commenters (0105, 0107) requ ested that EPA carefully consider any monitoring, recordkeeping, and reporting requirements adopted in the permitting mechanism.28

One commenter (0105) remarked that the ANPR appears to suggest implementing monitoring and recordkeeping requirements above and beyond what are re quired at large Title V sources.
T he commenter (0105) stated that control and monitoring requirements must account for remote, unmanned locations; geographically dispersed locations (and the time to travel to these locations); a large nu mber of small sources; and extreme weather conditions. The commenter (0105) further asserted that EPA must minimize monitoring requirements to avoid overburdening small operators without resources to implement complex data management systems; the

commenter (0105) requested that, when considering data recordkeeping requirements, EPA take into account the need for r esponsible o fficial certification for thousands of facilities; the time required to set up each facility in a reporting system; the time, personne l, and resources required to enter data; and the need for data transfer after a facility is transferred or sold. One commenter (0107) requested that EPA ensure that any recordkeeping, reporting, and other requirements should not be more burdensome than wha t is required for operations on non

- tribal lands; the commenter expressed concern that if compliance requirements were more burdensome than what is required on non

- tribal lands, owners and operators would relocate operations to state and private lands.

7.0 Developing Appropriate Control Requirements: FIP approach

7.1 Developing c ontrol requirements for attainment vs. nonattainment areas

Comment 7.1.1 : Three commenters (0081, 0111, 0106) recommended that EPA adopt a tiered approach to control requirements to include requirements for attainment and nonattainment areas. One commenter (0111) noted that having requirements for nonattainment areas in the permit, such as was done in the first batch of general permits/permits by rule proposed for area sources, wou ld avoid delays in permitting should an area become nonattainment. This commenter recommended that the nonattainment provisions become applicable upon a nonattainment designation for relevant pollutants. Another commenter (0081) supported EPA’s proposal to have the requirements in the FIP go beyond the current NSPS and NESHAP requirements in areas that are nonattainment, have increment violations, or AQRV degradation. The commenter (0081) recommended that these cont r ols be consistent with state requirements , such as those implemented in Texas, Colorado and Wyoming. One commenter (0111) pointed out that the CAA does not include any specific requirements as to what level of control is needed for minor NSR permits, but only that a program is needed only “as nec essary to assure that NAAQS are achieved.” The commenter (0111) recommended that, for sources located in attainment areas with no applicable NSPS or NESHAP requirements, the permit should only require basic control measures already in common use. The comme nter (0111) stated that only these would be needed to assure that NAAQS are achieved, and that this approach is consistent with most state minor NSR programs. Another commenter (0106) argued that no control requirements were needed for attainment or unclas sifiable areas. One commenter (0111) stated that EPA should not adopt standards for existing sources.

Comment 7.1.2 : One commenter (0110) remarked that, in considering requirements for nonattainment and industrial development areas, “EPA must recognize it is bound by CAA procedural requirements and take the required steps in course to achieve effective regulation.” This commenter recommended that EPA develop comprehensive emissions inventories for each29

air shed of concern before developing an appropriate c ontrol strategy based on a case

- by

- case evaluation.

Comment 7.1.3 : Three commenters (0110, 0111, 0116) requested that EPA develop a region

- specific

, industry

- EPA work group for development of emission inventory and control requirements. These commenters stated that work groups were the most efficient and effective way to address the complexities arising from the transition from an attainment area to a nonattainment area, and assure that the regulatory measures embody both certainty and technical flexibili ty.

7

. 2 Support for including controls consistent with state requirements

Comment 7.2.1 : Four commenters (0081, 0082, 0113, 0116) expressed support for including control requirements that are consistent with requirements in the surrounding state(s). One commenter (0081) cited requirements limiting NO x emissions from engines from four

western s tates (Texas, Colorado, New Mexico, and Montana), and suggested that it was appropriate for EPA to consider more stringent regulations for engines. Two commenters (0081, 0082) recommended that EPA consider regulating hydrocarbon emissions, as was done by t he State of Colorado, so that the greenhouse gas methane could be regulated. Two commenters (0081, 0082) also recommended that EPA look to oil and gas regulations from the states of Wyoming and Montana as useful models for developing requirements that refl ect best national practices. One commenter (0082) stated that EPA modeled oil and gas sector NSPS and NESHAP rule s after the Wyoming regulations in 2013. The commenter (0082) noted that the State of Wyoming is in the process of developing regulations for the regulation of air pollution emissions from existing sources in the oil and gas sector that are located in ozone nonattainment areas. This commenter also n oted that Wyoming oil and gas regulations provide a good example of tailoring requirements to different areas, with specific requirements designed for each of four distinct areas. One commenter (0016) recommended that EPA look at oil and gas regulations fr om states that have a long history of oil and gas development, including Texas, Oklahoma, Louisiana

, and Wyoming.

7

. 3 O pposition to applying state approaches

Comment 7.3.1 : Five commenters (0106, 0116, 0107, 0108, 0113) requested that EPA not apply more stringent requirements based on state programs as this could disadvantage tribes. One commenter (0106) noted that the political and economic choices made by states should not be imposed on the tribal lands, while another commenter (0116) stated that using the most stringent state regulations is inappropriate for a nationwide program. Two commenters (0107, 0108) opposed adopting requirements for each tribal area identical to the state within which the tribal lands are located, arguing that this would create disparate impacts between tribes. One commenter (0107) further stated that this approach would not reflect the specific and unique characteristics of each tribal area, nor wou ld it reflect the views and inputs of each tribe. One

commenter (0108) recommended that EPA develop reservation

- or region

- specific FIPs, as this would specifically address tribes ’ unique economic development and environmental concerns. Another commenter (0113) recommended against adopting regulations from surrounding states, as those regulations were likely formulated to address air quality issues in a specific, limited area. One c ommenter (0107) noted that “operations in Indian country currently are subject to a30

labyrinth of federal regulations and requirements that do not apply to private, state or, in some cases, even other federal lands”, creating competitive disadvantages that can discourage investment and energy resource development in Indian country. The commenter (0107) claimed that s ince many tribal nations depend exclusively upon their natural resources to generate jobs and provide social services, a FIP that increases the regulatory burden above that required for adjacent state or private land may discourage oil and gas development on tribal lands, resulting in many tribal nations losing their most important revenue stream and resulting in a loss of core government services

. The commenter a lso stated that most energy

- producing tribes have a Tribal Employment Rights Ordinance which promotes opportunities for steady employment through small businesses , benefitting once poverty

- ridden communities. The commenter (0107) stated th at a FIP that creates disincentives for development on tribal lands would create adverse economic consequences for tribal businesses.

Comment 7.3.2 : Two commenters (0112, 0113) requested that EPA should not apply requirements beyond those already formali zed in the FBIR FIP for oil and gas operations located on the FBIR, noting that the FBIR FIP has some of the most stringent air emission control regulations in the nation. One commenter (0112) also asserted that additional requirements cannot be justified after a review of ambient air monitoring results for North Dakota, which indicate that the ambient air quality is excellent. This commenter explained that providing additional requirements was unnecessary, as there are several federal regulations that alre ady apply to oil and gas facilities and engines (e.g., NSPS subpart OOOO, IIII, JJJJ, and NESHAP HH and ZZZZ). Another commenter (0113) asked that EPA should deem compliance with the existing FIP designed for the FBIR as compliance with the minor NSR.

7.4 Specific control req uirements to consider :

Comment 7.4.1 : One commenter (0111) recommended that the permits list multiple control options and affected sources be allowed to choose the option that best fits their circumstances, explaining that such a mech anism could be used for establishing synthetic minor permits and reducing emissions below thresholds.

Comment 7.4.2 : One commenter (0082) mentioned that EPA should look to the B LM

, which is revising Onshore Order No.9, for ideas for developing oil and gas development requirements

.

Comment 7.4.3 : One commenter ( 0119 ) recommended that EPA should include the major emission reduction measures highlighted in a report by the independent consulting firm ICF International

, which the commenter stated included cos t

- effective technologies available to mitigate emissions. The commenter ( 0119 ) argued that the pollution reduction measures contained in the report could actually save money by routing gas to sales that otherwise would have been leaked to the atmosphere. T he commenter ( 0119 ) provide d a copy of comments recently submitted to the BLM recommending mitigation measures for the oil and gas industry, including : LDAR in the production, gathering, processing, and transmission segments; requiring reduced emissions completions (REC) in fractured and refractured wells; use of Gas Conservation Plans; replacement of high

- bleed pneumatic controllers and high

- emitting intermittent pneumatic controllers with low

- bleed models; use of vapor recovery units (VRU) on storage ve ssels; installation of vapor recovery systems on wet seal compressors, and regular31

replacement of reciprocating compressor rod packings; control of emissions from oil wells, including mitigation of associated gas venting and oil well completion emissions; and control of liquids unloading emissions.

Comment 7.4.4 : Four commenters (0105, 0111, 0113, 0110) advised that EPA should consider existing consent decrees, R ecords of Decision , and compliance with NSPS or NESHAP when establishing requirements for the p ermitting program to avoid duplicating requirements or enacting more stringent controls. Commenters specifically referenced NSPS , subpart OOOO (0110, 0111) and subpart JJJJ (0111) as a source. One commenter (0110) noted that EPA must also recognize existin g emission reduction requirements and the resulting impacts to the air sheds imposed under existing federally enforceable agreements and regulations.

Comment 7.4.5 : Two commenters (0081, 0109) recommended that EPA include requirements for drill rig engin e standards comparable to or equivalent to Tier IV engine requirements for nonattainment areas, as engines are significant contributors of NO x emissions. One commenter (0081) noted that Tier IV engine standards limit NO x emissions from large generator sets to 0.5 gm/Hp

- hr, which is roughly equivalent to a Tier II engine with post

combustion selective catalytic reduction (SCR) technology.

Comment 7.4.6 : One commenter (0109) recommended that EPA include requirements for controlling emissions from liquids unloading events at new and existing wells through the use of plunger lifts, as this is a significant source of VOC emissions

. The commenter cited various proven and cost

- effective methods as alternatives to the more comm on “blow down” approach that vents considerable amounts of gas to the atmosphere. The commenter provided cost data for installing plunger lifts, and argued that use of plunger lifts in place of “blow downs” would be more economical and result in greater we ll productivity, citing data showing that plunger lift installations typically have payback periods of 9 months or less.

Comment 7.4.7 : One commenter (0109) recommended that EPA include requirements for controlling emissions from new and existing glycol dehydrators equivalent to those recently enacted by the Colorado DPHE, which requires 95% control.

Comment 7.4.8 : One commenter (0109) r ecommended that EPA include requirements for controlling emissions from new and existing oil, condensate, and produced water storage tanks equivalent to those recently enacted by the Colorado, which requires 98% control for tanks with potential to emit of VOC > 6 t ons per year . The commenter also recommended that EPA require new and existing storage vessels to capture VOC emissions via a closed vent system and route those emissions to a beneficial use.

Comment 7.4.9 : One commenter (0109) expressed support for require ments for truck loadout.

Comment 7.4.10 : One commenter (0109) expressed support for requirements for phase separation.32

Comment 7.4.11 : One commenter (0109) provided support for control requirements for pneumatic devices

. The commenter noted t hat EPA did not require replacement of high

- bleed controllers in subpart OOOO, but that Colorado will require operators to replace all existing high

- bleed controllers by May 1, 2015. The commenter (0109) stated that Colorado found that replacement of a high

- bleed controller with a low

- bleed controller pays for itself, from the value of the conserved gas, in fourteen months, and there is no evidence in the record that these requirements have caused any operational problems. This commenter (0109) recommended that EPA prohibit the use of any new or existing pneumatic valve control ler that emits more than 6

s tandard c ubic f

eet per h our , except when technically necessary, and, for facilities connected to the grid, EPA should require zero

- bleed pneumatics that have no emissions. The commenter (0109) also recommended that EPA require t hat existing high

- bleed devices (whether continuous

- or intermittent

- bleed) be replaced with low

- or zero

- bleed devices.

Comment 7.4.12 : One commenter (0109) recommended that EPA require regular LDAR surveys at all facilities, including those not covered under subpart s KKK and OOOO, noting that the State of Colorado estimated that monthly inspections could result in emissions reductions of 80%. This commenter (0109) stated that LDAR surveys are a cost

- effective way to reduce leaks, and cited a study by th e Carbon Limits organization in support of its claim; the study showed that, in 97% of cases, repairing a leak cost less than the value of the gas conserved. This commenter (0109) noted that several states (Colorado, Pennsylvania, Wyoming, and Ohio) requir e LDAR surveys, and gave details of the requirements of the Colorado LDAR survey program. The commenter further noted that several oil and gas producers in the state supported Colorado’s rule, and submitted data in support of the rule. The commenter (0109) did not support reduced LDAR requirements as found in the Ohio regulations, contending that these incentivized operators to not find leaks. The commenter (0109) recommended that EPA require quarterly LDAR inspections on all sources in the oil and gas prod uction industry, and that auditory, visual, and olfactory (AVO) inspections be performed monthly.

Comment 7.4.13 : One commenter (0109) recommended that EPA include requirements for both new and existing reciprocating and centrifugal compressors equivalen t to those currently required by the NSPS for the oil and natural gas sector ( subpart OOOO). The commenter noted that the cost of maintaining existing compressors is equivalent to that of maintaining new compressors, and cited EPA’s Regulatory Impact Analy sis for the NSPS in support. The commenter (0109) argued that it does not make sense to regulate only new compressors when the benefits gained by regulating existing compressors is so large. The commenter also noted that wet seal centrifugal compressors le ak large quantities of VOC that could be recovered by a VRU

, and recommended that EPA require operators of existing centrifugal compressors to either replace their wet seal configuration with one that utilizes dry seals, or capture the emissions from the w et seal oil degassing unit, as was required for new units in the Oil and Gas NSPS ( subpart OOOO). The commenter (0109) supported their recommendation with calculations of cost savings.

Comment 7.4.14 : One commenter (0109) noted that control options for NO x emissions from both new and existing compressor engines and combustion turbines are available at reasonable cost, citing research done by the State of Wyoming in developing the Wyoming SIP for Regional Haze. The commenter (0109) noted that low

- emission c ombustion retrofit, SCR,33

and selective non

- catalytic reduction (SNCR) would achieve between 80 and 99 percent control efficiency of NO x for reciprocating compressors, and noted control technologies for turbines including water or steam injection, low NO x b urners, SCR, and a combination of SCR and water or steam injection. The commenter (0109) recommended that EPA require all new and existing sources to install at least one of these control technologies, or to install electric motors unless the operator show s it is infeasible to do so.

Comment 7.4.15 : One commenter (0109) noted that there are available options at very reasonable cost, such as SNCR, SCR, and a combination of SCR and low NO x burners , to address the NO x emissions from external combustion units.

Comment 7.4.16 : One commenter (0111) observed that existing equipment is commonly moved from one site to another, resulting in existing equipment being permitted under the Federal Minor NSR Program in Indian Country . The commenter stated that control requirements should only envision retrofit control measures usable with the existing equipment common in the oil and gas production sector. The commenter (0111) noted that engines are commonly r eplaced with other engines when maintenance is needed, so any permit should authorize such engine

swaps.

8.0 Inclusion of Setback Requirements

8. 1 Support for setback requirements

Comment 8.1.1 : One commenter (0081) encouraged EPA to include setback requirements and suggested that the definition of "sensitive receptors" be expanded to include units of the National Park System and other protected areas of significant cultural, scientific, scenic or recreational value.

8. 2 Opposition to setback requirements

Comment 8.2.1 : Eight commenters (0104, 0105, 0106, 0107, 0108, 0116, 0113, 0087) objected to the inclusion of setback requirements in the permit. One commenter (0104) objected to the inclusion o f setback requirements in the permit because the CAA does not give EPA the authority to impose setback requirements. This commenter noted that “EPA may not impose more stringent requirements for minor sources than what is needed to attain the NAAQS in a

sp ecific area”, and that “imposing a more stringent standard nationwide would impose unauthorized restrictions on unimpaired areas

. ”

Comment 8.2.2 : Four commenters (0105, 0106, 0107, 0113) objected to the inclusion of setback requirements in the permit ting mechanism , noting that any setback should be specific to the emission source type, and should be based on a scientific evaluation of potential health risks to the nearest sensitive receptor. Two commenters (0105, 0113) noted that fixed setbacks from

proper ty boundaries may not be feasible for midstream facilities, especially for existing facilities when they are modified. Two commenters (0106, 0107) asserted that EPA’s proposal for a proximity

- based requirement must be supported by the requisite data, inclu ding a demonstration of health impacts. One of these commenters (0106) noted that EPA cited no scientific, peer

-34

reviewed articles that indicate the necessity for a proximity

- based standard, while both commenters (0106, 0107) noted that to do so would set a precarious precedent that could have significant and negative unintended consequences. The commenters concluded by observing that (0106) developing a setback without the supporting data would be inconsistent with the CAA, and (0107) that existing regulati on (e.g., Federal Minor NSR Program in Indian Country , NSPS

, subpart OOOO, and NESHAP , subpart HH) is sufficiently protective of public health and the environment

.
Comment 8.2.3 : Three commenters (0106, 0107, 0108) noted that setback regulations are consi dered land use regulations and their inclusion in the permit would conflict with tribal jurisdiction; the commenters (0106, 0107, 0108) urged that EPA respect tribal sovereignty and the authority to regulate its land uses. One commenter (0107) stated that “tribes know best how to manage their physical environments in order to keep their air, water, and land clean for themselves and their children.” One commenter (0113) observed that setback requirements are already addressed by other appropriate regulatory agencies. One commenter (0108) further noted that their tribe already has zoning regulations and setback requirements. The commenter (0108) declared that the federal government should not implement regulations that would compromise the value of the mineral resources i n Indian country . This commenter (0108) stressed that local tribes are best able to determine appropriate setback distances, and noted that the FB IR FIP does not contain a setback requirement. Two commenters (0108, 0116) emphasized that “including a setback requirement ... contravenes explicit requirements embodied in existing Indian mineral leases, and is contrary to existing Bureau of Indian Affairs ( BIA ) regulations.” One commenter (0116) state d that the federal government has long recognized that Indian mineral leases are contracts, and cited several legal cases in support. This commenter observed that Indian mineral leases are contracts that cannot be unilaterally modified by the federal gover nment. One commenter (0087) explained that, in La Plata County, oil and gas leases have very specific requirements for the location of all wells with spacing orders. Two commenters (0108, 0116) pointed out that Indian mineral leases issued under Indian Min eral Leasing Act of 1938 (IMLA) and the Act of March 3, 1909 aka “1909 Act”, already include a bargained for and agreed upon “setback” requirement limited at 200 feet, and that it would be improper for EPA to infringe upon the authority of the Secretary of Interior with respect to such leases. One commenter (0116) also cited a 1996 determination by the BIA to not amend the IMLA and 1909 Act with regulations in conflict with existing Indian mineral lease provisions (see 61 FR 35634

- 44), and to do so was the “most equitable method of handling [such] issues.” The commenter (0116) concluded that EPA imposing any setback requirement would create a conflict between EPA and Secretary of Interior, as well as imposing a requirement in conflict with IMLA and 1909 Act oil and gas leases. The commenter (0116) observ ed that “EPA should not attempt to promulgate regulations that contravene the requirements of existing Indian mineral leases and BIA regulations.” This commenter (0116) also stated that “it would be improper f or EPA to look to state law or impose state setback requirements i n Indian country subject to EPA’s CAA jurisdiction.” The commenter cited several legal cases in support, observing that placing Indian mineral leases under the jurisdiction of state requirem ents would conflict with established federal case law.35

9.0 Requirements for Air Quality Monitoring

9.1 Supports installation of ambient monitors and collection of additional data

Comment 9.1.1 : Three commenters (0081, 0109, 0119 ) supported the installation of ambient air quality monitors and collection of data, stating that this step is necessary to assess the air quality status in areas of Indian country that currently do not have adequate monitoring coverage. Two commenters (00 81, 0109) recommended that EPA include a monitoring requirement for ozone and NO x for areas of intensive oil and gas development. One commenter (0109) noted that EPA’s requirements for state monitoring networks exclude large areas in and around Indian country, as well as areas suffering from wintertime ozone. This commenter (0109) furt her noted that EPA

- mandated source monitoring in the Uintah Basin was important in recognizing the severe ozone problem in that region. Another commenter ( 0119 ) stated that strengthening monitoring networks on tribal lands is consistent with EPA’s responsi bility to ensure adequate monitoring networks in any section 110 FIP . Two commenters (0109, 0119 ) urged EPA to use its authority under section 114 and other provisions of the CAA to require oil and natural gas sources to install and operate ambient air qua lity monitors for ozone and other pollutants, and included citations from 42 U.S.C., the Federal Register, 40 CFR and U.S. case law to support their claim. One commenter (0109) noted that there are cost effective air quality monitors that can easily be emp loyed at oil and gas sites, and recommended that EPA pass on the cost of installing and maintaining monitors to permittees through permit fees. One commenter (0109) included by reference a petition submitted by a broad coalition of environmental,

conservat ion and children’s health groups seeking source monitoring for ozone [see EPA

- HQ

OAR

- 2011

- 0151

- 0109 ], and urged EPA to finalize the revisions to its monitoring network regulations first proposed in 2009. Finally, one commenter ( 0119 ) noted that the Nationa l Tribal Air Association’s recently released ‘Status of Tribal Air Report’ emphasized the need for additional air quality data, and called attention to the lack of NAAQS air quality data for the vast majority of Indian country

.

Comment 9.1.2 : One commenter (0109) stated that, if EPA continues to take the position that it can only consider “regulatory” monitors to make nonattainment designations, EPA should require source monitors to meet all of EPA’s “regulatory” standards applicable to state monit oring networks, including site selection and quality assurance requirements.

9. 2 Opposes requirements for ambient air monitoring

Comment 9.2.1 : Three commenters (0105, 0111, 0114) stated that EPA does not have the statutory authority to require individua l affected sources to conduct ambient air monitoring via section 114 of the CAA , and would be beyond the scope of what is authorized by that section. Two commenters (0105, 0113) noted that the requirements specified in CAA s ection 114(a)(1) are source specific, and that nothing in s ection 114 suggests that an owner or operator of a source would be required to collect general emissions data for the area in which it is located. These two commenters (0105, 0113) noted that ambie nt air quality monitoring is typically considered a section 110 function that is undertaken by the implementing authority ( s tate, t ribe, or EPA) and not a function undertaken by individual sources. One commenter (0105) also noted that the Senate’s Summary of the Provisions of Conference Agreement on the Clean Air Act Amendments of 1970 provides additional support for this interpretation of section 114. One36

commenter (0113) stated that the expense of imposing this extremely costly requirement on operators wo uld cause a significant operational and economic disadvantage for sources in Indian country.

Comment 9.2.2 : Four commenters (0105, 0111, 0113, 0114) objected to EPA requiring oil and natural gas sources in Indian country to install and operate ambient air monitors. Three commenters (0111, 0113, 0114) stated that ambient air quality monitoring is the responsibility of EPA and state/local/tribal regulatory authorities and that EPA should work with the t ribes to address how an appropriate regulatory agency wi ll maintain air quality monitors in Indian country . Two commenters (0113, 0114) noted that installation of and maintenance of air quality monitors is very expensive. One commenter (0114) stated that requirements for a source to install and operate an ambie nt monitoring station should be reserved for none but the largest of

sources.

10.0 Compliance Requirements

Comment 10.1 : Three commenters (0109, 0113, 0114) stated support for use of electronic reporting. Another commenter (0114) recommended that EPA mi nimize duplicative compliance reporting, simplify recordkeeping and reporting requirements, and rely on existing NSPS and NESHAP recordkeeping and reporting requirements

, wherever possible.

Comment 10.2 : Three commenters (0109, 0113, 0119 ) commented on next generation compliance measures. One commenter (0109) noted that any preference for these measures must not sacrifice the goal of reduced emissions in order to reduce the burden on industry. This commenter (0109) knew of no monitoring technologies capa ble of ensuring that facilities do not have leaks or excessive emissions, and noted that work needed to be done in developing such technologies. Another commenter (0113) noted that, while next generation compliance measures may provide an opportunity for o perators to ensure compliance, mandatory requirements to use such methods would cause significant operational and economic disadvantages for operators in Indian country. The commenter (0113) provided infrared cameras as an example; the commenter noted that while the use of infrared cameras to detect leaks is useful for reducing fugitive emissions, its use is very expensive and should be limited to those specific cases in which it is shown to be cost

- effective and where monitoring data shows adverse impacts to air quality. In response to EPA’s requests for information on ‘ process

- based monitoring systems already in

use ’ in section VII.H of the ANPR, one commenter (0113) stated that they use thermocouples to monitor combustors and inlet temperatures to engine catalysts as a means of monitoring emissions control equipment and fulfilling permit requirements. In response to EPA’s requests for information on ‘any immediate feedback technologies ... that would provide the operator with real time measures of ... their co mpliance status ’ in section VII.H of the ANPR, one commenter (0113) stated that “[such] information ... is often monitored using SCADA systems [but] challenges are encountered when operating in remote areas.” One commenter ( 0119 ) recommended that EPA incorpo rate next generation compliance measures into the compliance and enforcement provisions of the FIP. This commenter ( 0119 ) provided multiple examples of possible next generation compliance measures along with references to EPA websites containing detailed d iscussions of same. Th e commenter ( 0119 ) recommended that EPA incorporate two next generation compliance measures included in NSPS

, subpart OOOO : ( 1) the photographic37

verification and self

- certification requirements in 40 CFR. 60.5420(b) to file a streamlined, self

certified report listing all gas well completions and containing time

- and location

- stamped electronic or hard copy photographs documenting RECs ; and ( 2) to have the self

- certification requirements for well completions signed by a responsible official and included in the annual report. One commenter (0109) recommended use of Optical Gas Imaging, claiming that it reduces the cost of inspecting facilities for leaks.

Comment 10.3 : Two commenters (0111, 0113) stated that mandatory requirements for third

- party compliance verification should not be included in the compliance requirements. One commenter (0113) objected on the basis that third

- party v erification is costly, would cause an economic disadvantage for operators and impair economic development, while another commenter (0110) stated that EPA lacks authority to impose such a requirement, as the CAA does not authorize EPA to require affected so urces to hire contractors to do work on behalf of the Agency. The commenter (0113) asserted that assuring compliance with the well completion requirements is EPA’s responsibility, and any third party verification requirement would circumvent the limited Co ngressional budget appropriation for EPA enforcement activity.

Comment 10.4 : Two commenters (0110, 0114) expressed opposition to inclusion of any

pre

- set penalty system for violations. One commenter (0114) suggested that such a system risks encouraging owners and operators to base their compliance actions relative to the known pena lty. Another commenter (0110) noted that an automatic penalty would violate CAA section 113(a)(3) because EPA must “find” that a violation exists before initiating enforcement action. This commenter (0110) also noted that noncompliance could occur for a va riety of reasons and that an automatic penalty would be arbitrary and capricious because context could not be taken into

account.

Comment 10.5 : One commenter (0081) stated that compliance and enforcement measures need to be clearly defined in the FIP, and recommended that EPA should review performance and deployment of remote monitoring equipment in oil and gas production fields as a means to improve emissions management.

11.0 Executive & Statutory Orders

Comment 11.1 : One commenter (0110) stated that the proposed rulemaking must promote predictability, reduce uncertainty, establish more efficient permitting procedures, and incorporate necessary flexibility, as set forth in Executive Order 13563 of January 18, 2011.

Comment 11.2 : Three commenters (0082, 0 107, and 0108) stated that EPA has not adequately consulted with t ribes as it develops regulations under the Federal Minor NSR Program in Indian Country , as required in Executive Order (EO) 13175. One commenter (0108) noted that EO 13175 requires EPA to consult with t ribes at the earliest point in the process, so that they can be involved in designing the rules. Two commenters (0107, 0108) emphasized that opportunities to comment in public forums after the proposed rule has already been published in the Federal Register do not provide tribes with the opportunity prescribed in EO 13175, and should not be considered adequate to justify new regulations applic able to activities on tribal lands. All three commenters (0082, 0107, 0108) stated that EPA must fully consider the views38

and concerns raised by tribes and their representatives, as the proposals in the ANPR directly affect hundreds of thousands of tribal members and will have substantial impact on tribal lands. One commenters (0108) stated that consultation as required in EO 13175 will ensure that EPA understands t ribal member’s concerns, their economic development goals, and the effects of air quality pro blems on tribal members, so that EPA can draft regulations in the best interests of the

t ribe

.

12.0 Comments on EPA’s Administrative Process

Comment 12.1 : Four commenters (0106, 0107, 0111, and 0114) requested that EPA clarify the relationship between engines covered in the proposed General Air Quality Permit for New or Modified True Minor Source Spark Ignition and Compression Ignition Engines published on J uly 17, 2014 package and the general permit

, permit by rule , or FIP under the Federal Indian Country Minor NSR rule for the oil and natural gas sector as published in the ANPR. Three commenters (0106, 0107, and 0111) recommended that engines used at oil an d gas sources be regulated under an oil and gas sector

- based FIP or permit by rule and that the General Permit for Engines should specifically exclude engines located at oil and gas sources. One commenter (0111) noted that doing so would avoid the obvious complexities that would arise if certain equipment at oil and gas sources were covered by the permit for oil and gas operations, while other equipment is covered by separate general permits. Another commenter (0106) stated that establishing multiple permit regimes for the same equipment types would defeat the purpose of streamlining the Minor NSR for oil and gas sources; whereas a permit by rule or FIP requires

no pre

- construction approval, getting approval for a general permit could take 90 days or longer. The commenter (0106) stressed that commencement of operations at sites with engines would be delayed regardless if other equipment is authorized by a FIP or permit by rule, since all equipment on

- site is integral to the site’s operation.

Comment 12.2 : Three commenters (0064, 0065, and 0066) requested that EPA extend the comment period by 30

- 45 days. The commenters (0064, 0065, 0066) stated that the rule is lengthy and complex, requiring both legal and technical analysis, as well as coordination between departments within organizations, agencies, and tribal governments. Commenters urged that s ignificant time would be required by organizations to do a thorough and complete job reviewing and drafting comments. One commenter (0065) noted that t he prescribed comment period overlaps with the comment period for NSPS

, subpart OOOO, and remarked that organizations do not have the staff to address both the to

- be

- proposed rule (ANPR) and the proposed amendments to NSPS , subpart OOOO. One commenter (0066) noted that EPA has significantly added to the list of possible regulatory mechanisms for minor sources in Indian country . Another commenter (0065) noted that a modest extension of the ANPR deadline would provide EPA with better information and data with which to develop the permit for oil and gas E&P operations.

Comment 12.3 : One commenter (0078) asked EPA to withdraw the proposal because it is outside the scope of EPA’s appointed powers and would place undue burden on companies that do business in Indian country . The commenter (0078) stated that small companies that39

operate in Indian country do not have the resources to address the concerns set forth in the EPA proposal.

Comment 12.4 : One commenter (0083) requested consultation should any human remains or artifacts unearthed during oil and gas projects be determined to fall under Native American Graves Protection and Repatriation Act.

13.0 Out of scope comments

Comment 13.1 : One anonymous commenter (0062) stated that regulating CO 2 as an air pollutant would harm the economy, while another anonymous commenter (0069) stated that methane is a dangerous GHG that must be regulated.