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 Services1 

EPA-HQ-OAR-2011-0151-

0105

Jeff Applekamp Gas Processors Association2 

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 Tribe 
2

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 Enerplus Resources Corporation 

EPA-HQ-OAR-2011-0151-

0113

Mike Smith QEP Resources3

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 Support 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 Uintah and North San 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 public 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 (NOx) and volatile organic compounds (VOCs), and their contribution to the development 

of ground-level ozone and smog which may cause potential harmful health effects. One 

commenter (0108) noted that emissions of carbonyls, such as formaldehyde, from oil and gas 

sources were also contributing to ozone formation. Commenters (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. Two commenters (0109, 0119) also pointed to 

fine particulate emissions, including black carbon, and particulate precursors (e.g., sulfur dioxide 

(SO2), NOx) that are emitted by oil and gas sources and their potential impact on public health, 

specifically sensitive populations. The same commenters (0109, 0119) pointed to emissions of 

air toxics and hazardous air pollutants (HAPs) from oil and gas sources as potential carcinogenic 
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and public health risks; these commenters pointed to oil and natural gas sources as significant 

sources of HAPs. The commenters (0109, 0119) asserted that regulation of oil and natural gas 

sources is necessary to protect public health. Two 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 Protection 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 visibility 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 Uintah 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 monitoring 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 inversion in the basin during the 

winter months. The commenters (0109, 0119) provided data showing 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 exceedances 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 for 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 impact 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 Duchesne County have measured wintertime particulate matter (PM2.5)

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 NOx and 
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a large 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 that, 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 increase 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) pointed to the 

Energy 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 sources contribute the majority of 

NOx 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 gas 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 NOx 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 from 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 are sufficiently similar in operation that a general 

permit or permit by rule could be an effective permitting mechanism. The commenter stated that 
5

the permit must be implemented so as to not to cause delays because exploration 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 analysis 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 that 

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 commenter (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, 0108, 0109, 0111, 0112, 0119)

supported the development of a FIP to regulate oil and natural gas sources in Indian country. 

Two commenters (0108, 0111) supported the use of a FIP because it would streamline the 

permitting approach, eliminate the need for preconstruction approval, 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’ assurances 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 these 
6

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 commenters (0109, 0119) asserted that EPA has broad legal 

authority to issue a FIP in Indian country that covers both new and modified sources 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 asserted 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’ authority 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 country 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 

that applies to 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 measures 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 through 

the Fort Berthold Indian Reservation (FBIR) FIP that this is an effective approach. The 

commenter (0119) noted that several cost effective control measures have been successfully 

applied to new, existing, and modified sources through the FBIR FIP. The same 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 operations 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 increased 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 already 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 Opposition 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 additional, 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 needs 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, minimize 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 commenters (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 authorities, and allow industry to focus 

resources on compliance.

Comment 2.3.1.2: Two commenters (0107, 0113) stated that a permit by rule would 

remove the requirement for pre-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 complete 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 approval of state or local permits by rule in SIPs. Another commenter 
8

(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 approaches 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 Permits by 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, 0113, 0114) 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 commenters (0109, 0111) agreed with EPA that a permitting mechanism should 

be designed such that 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 tribal 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 

and, instead, apply to EPA for a case-by-case minor NSR permit. One commenter (0113) noted 

that states that have issued general permits for oil and gas production operations allow operators 

the option of applying for site-specific permits. The same commenter (0113) also requested that 

whether a FIP, permit by rule, or general permit 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 FBIR 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 emission 
9

inventory (using all 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 regularly 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 synthetic 

minor sources for both criteria and HAP pollutants. Several commenters (0105, 0106, 0111, 

0114) requested that sources should be able to establish federally enforceable limits to avoid 

major source permitting, prevention of significant deterioration (PSD) permitting, NSPS, and 

National Emissions Standards for Hazardous Air Pollutants (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 permits, 

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 federally

enforceable emission limits. One commenter (0116) stated that operators in 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 limits. 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-bycase permitting process. One commenter (0114) stated that implementing a FIP that would 

authorize larger, more complex minor sources up to the major source threshold under the PSD 

Program 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 enforceable 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 selfcertification 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 enforceable limits must be effective from the date of 

construction. The commenter (0106) noted that a FIP or permit by rule would provide for 
10

federally enforceable limits effective from the date of construction. One commenter (0111) noted 

that sources that are constructed or modified 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 postconstruction notification. The commenters (0110, 0112, 0116) noted that pre-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 accurate emission calculations and 

installation of controls. Two commenters (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 commenter (0112) requested that EPA allow postconstruction registration such as is utilized for new or modified sources in the FBIR 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 limited 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 requested 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 commenters (0110, 0111) requested that EPA provide a permitting 

mechanism that provides certainty 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 emissions 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 maintained, include calculation 

methodologies for estimating air emissions, identify covered process equipment and emission 

units, and identify 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; the 

commenter (0105) referenced 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 National Environmental Policy Act, 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 conducting 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 would 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 natural gas sources. Two commenters (0081, 0108) agreed with the ANPR that the 

cumulative impacts from existing sources could exceed that of large, new major sources. Some 

commenters (0108, 0109) voiced concerns about the impact of unregulated existing sources on 

the health and welfare of tribal members. One commenter (0109) asserted that there is substantial 
12

evidence demonstrating that existing oil and gas sources are responsible for considerable air 

pollution emissions within Indian country, noting that in response to the Federal Indian Country 

Minor NSR rule, Region 8 received more than 6,400 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 

emissions. 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 the 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] adoption 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 the 

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 regulations 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 to existing sources, as previous

examples of EPA exercising this authority.

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 oldest and most inefficient 

sources that most directly contribute to air quality degradation, which would reduce burden to 

operators. The commenter (0108) stated that a FIP that includes all existing sources would 

compromise continued development on reservations. 

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. The 

commenter (0119) stated that Colorado’s analysis found that these control measures were very 

cost effective. The same commenter (0119) pointed to an ICF study recommending costeffective controls at existing sources; the report referenced by the commenter determined that 
13

approximately 90% of emissions from the oil and gas sector in 2018 will 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 Opposition 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 finalizing 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 these 

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 

commenters (0104, 0113, 0116) disagreed with the conclusion in the ANPR 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 commenters (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 states by CAA section 110(a)(2)(C) only permits states 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 sections 110(a)(2)(C) and 301(d) for regulating minor sources. The 

commenters (0104, 0113) also noted that per those statutes, 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 sources 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 requirements to demonstrate attainment, “the purpose of those 

requirements has been fulfilled and plan provisions outlining additional measures to achieve 
14

attainment would have little meaning.” Commenters (0104, 0113, 0116) reiterated that section

301(d)(4) does not 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 natural 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 that 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 promulgate 

regulations beyond what is necessary to attain the NAAQS and may not 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 areas.

Comment 3.2.2.4: Some commenters (0104, 0116) also objected to EPA citing the TAR

as further background for its authority to regulate existing sources, and reiterated that the TAR

does not expand EPA’s authority. Two commenters (0104, 0113) stated that the TAR explains 

that the Administrator will only exercise authority that has been “explicitly” granted under 

sections 301(a) and 301(d)(4). One commenter (0111) asserted that the TAR does not provide 

EPA with greater authority 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 commenters (0111, 

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

necessary or appropriate” to meet CAA applicable requirements. One of these commenters

(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 sources. 

The commenters (0104, 0113) assert that any exercise of gap-filling authority 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 CAA (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 cannot 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 allow existing sources to voluntarily participate in the permitting 

program and accept enforceable permit limits. One commenter (0111) reiterated that the Federal 

Minor NSR Program in Indian Country applies by its own terms only to new and modified 
15

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 that the 

information available for these sources is incomplete. 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 conclusion 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) claimed 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 sources. 

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 implementation 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 for 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 extrapolated 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 establish an attainment plan prior to regulating existing sources. The commenters (0106, 

0116) urged that to regulate existing sources, EPA must make a determination 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). Commenters (0106, 0116) stated 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 necessary. Commenters (0106) remarked that EPA should address major 

sources first, and then minor new sources and lastly, minor existing sources. One commenter 
16

(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 

performance 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 caseby-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 enable 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 not 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 of emissions data or air quality. The commenters (0106, 0107, 0116) 

stated that because similar considerations are not present in all tribal areas, EPA 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 EPA. The 

commenters (0106, 0107) stated that EPA decided not to regulate existing minor 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 commenters (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 County 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 expected 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 Impacts 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 2014 rulemaking as an example of cost-effective emissions reductions that could be 

applied to existing sources in Indian country. One commenter (0106) stated that EPA 

inappropriately 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 costbenefit analyses must be based on considerations specific to locations including area specific 

emission factors, incremental costs from the baseline requirements, location and accessibility, 

and other factors. The commenter (0106) noted that Colorado’s recent regulations expanded 
18

existing regulatory requirements for both new 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 not 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 the Colorado cost-benefit analysis relied upon assumptions containing multiple 

flaws, resulting 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 

pollution 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 the “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 higher 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: Three commenters (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. Two 

commenters (0106, 0113) requested that EPA delay consideration of requirements on 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. 

Commenters (0106, 0113) asked that EPA consider ambient air quality, production 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 individual tribes in different locations. One commenter (0107) expressed concerns

that inconsistencies between requirements applied to existing sources within Indian country and 
19

outside of Indian country could adversely affect tribes, especially in areas with 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; other 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. The 

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 these 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 commenter 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 nonattainment 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 this 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 the 
20

same stationary source 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 General Permit 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 uniformly 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 permitting. 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 

corresponding 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 requirements 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-specific 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, the commenter (0114) 

recommended a tiered permitting approach that would allow EPA to draft one set of regulations 

that apply across Indian country, but also limit the availability of less-stringent permits to only 

those reservations with clean air, or alternatively, develop a reservation-specific general permit

for areas of concern.

4.2 Opposition to applying a General Permit 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 

– either 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 sections 301(a) and 301(d) as sources 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 superintending 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 (0116), referencing 

Oklahoma v. EPA, 740 F.3d 185, 193 (D.C. Cir. 2014), indicated that if EPA seeks to impose 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, Consultation 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 by 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 to an 

unequal playing field by denying tribes the autonomy enjoyed by states. 

Comment 4.2.1.3: Commenters (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 authority 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 tribal 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. Commenters (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 each 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 sources 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 should 
22

be tailored to reflect 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 commenters (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 distinguish 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 imposes 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 area 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 commenters

(0104, 0113) expressed concerns that imposing a more stringent standard nationwide would 

over-regulate or impose unauthorized restrictions on unimpaired (i.e., attainment) areas. Another 

commenter (0107) expressed concern that if EPA adopted a uniform approach that applied in all 

areas of Indian country, 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 sources 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) noted 

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 when determining emissions 

controls. One commenter (0104) pointed to differences between Texas and California summer 

ozone issues, which are caused by hot weather, NOx, 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 modeling to support the use of additional control measures in

attainment areas and to show that such areas would benefit from such measures. The commenter 
23

(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, meteorology, 

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 quality 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 Develop Reservation-Specific FIPs

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 that 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 that 

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 permitting program (based 

on presumptive Best Available Control Technology 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 FBIR FIP as a model for other reservations.

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 (0108) 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 problems unique 

to the Uintah Basin. The commenter (0108) explained that, although the tribe 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 FIP 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 Indian Tribe.
24

4.2.5 Application 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 tribes’ abilities to expand operations, and decrease the revenue the tribes 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 protection 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 reservations and delays in 

the approval process; the commenter (0108) expressed fears that if EPA applied the same 

standards nationwide, companies would limit their operations or leave the reservations. The 

commenter (0108) explained that this could lead to job cuts and diminish revenue used to fund 

tribal governments and provide services to tribal members. The commenter (0108) noted that 

tribes 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, housing, 

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 and 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 commenters (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 stations represent 39% of total oil and gas emissions of NOx and 49% of total 

oil and gas emissions of VOC, and minor source gas plants account for 36% of total oil and gas 

NOx and 13% of total oil and gas VOC. Two commenters (0105, 0111) supported streamlining 

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 infrastructure to support 

production facilities. Two commenters (0105, 0111) explained that natural gas processing plants 

typically have similar types of emission sources as compressor stations and are frequently true or 
25

synthetic minor sources. One commenter (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 

compression, heaters for molecular sieve dehydration bed regeneration, heaters for amine 

treating systems, amine treaters to remove hydrogen sulfide and/or carbon dioxide (CO2), 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 processing 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 requirements, 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 Regional 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 included all the portable non-self-propelled apparatus 

associated with those operations.” The commenter (0111) stated that this could potentially 

describe mobile 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 source, and these 

types of emissions are not typically included in PSD and Title V Programs; 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 

restricted to VOC and NOx, then oil and gas minor sources would also have to comply with 

regulations for the remaining criteria pollutants under the FIP for NSR for minor sources in 

Indian country. Two commenters (0111 0113) agreed with the ANPR that there is no advantage 

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) noted 
26

that NOx 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 development 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 

NO2 Class I increment in Mesa 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 visibility 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 country 

that EPA proposes 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 permitting 

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 that EPA allow customizable, federally enforceable 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 considerations 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 general permit 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, 0105) requested that EPA develop a permit that 

treats synthetic minor sources the same as true minor sources, and allows for a process to quickly 
27

establish a source as a synthetic minor source. One commenter (0105) noted that state minor 

NSR programs do not distinguish 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 

consistency, 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 enforceable emission limits to be established during the application or registration 

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 requested 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 engine 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 part 63, NESHAP standards. The commenter (0105) requested that EPA allow operators 

to voluntarily adopt emission limits in order to avoid becoming subject to an 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 establish 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 recognized 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 

composition 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 throughput.

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) requested 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 required at large Title V sources. 

The 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 number 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 responsible official certification for thousands of facilities; the time 

required to set up each facility in a reporting system; the time, personnel, 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 what 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 control 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, would 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 controls 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 necessary 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 commenter (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 unclassifiable 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 each 
29

air shed of concern before developing an appropriate control 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 

flexibility.

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 NOx emissions from engines from four 

western states (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 the 

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 reflect best national 

practices. One commenter (0082) stated that EPA modeled oil and gas sector NSPS and 

NESHAP rules 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 noted 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 

from states that have a long history of oil and gas development, including Texas, Oklahoma, 

Louisiana, and Wyoming. 

7.3 Opposition 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 would 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 commenter (0107) noted that “operations in Indian country currently are subject to a 
30

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 since 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 also 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 

that 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 formalized 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 already 

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 requirements 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 mechanism 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 BLM, 

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 cost-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. The commenter (0119) provided 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 vessels; installation of vapor recovery systems on wet seal compressors, and regular 
31

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, Records of Decision, and compliance with NSPS or NESHAP 

when establishing requirements for the permitting 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 existing 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 engine standards comparable to or equivalent to Tier IV engine 

requirements for nonattainment areas, as engines are significant contributors of NOx emissions. 

One commenter (0081) noted that Tier IV engine standards limit NOx emissions from large 

generator sets to 0.5 gm/Hp-hr, which is roughly equivalent to a Tier II engine with postcombustion 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 common “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 well 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) recommended 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 tons 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 requirements 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 that 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 controller that emits more than 6 

standard cubic feet per hour, 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 that 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 subparts 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 the 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) 

require 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 production 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 equivalent 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 Analysis 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 leak 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 wet 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 NOx 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 combustion retrofit, SCR, 
33

and selective non-catalytic reduction (SNCR) would achieve between 80 and 99 percent control 

efficiency of NOx for reciprocating compressors, and noted control technologies for turbines 

including water or steam injection, low NOx burners, 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 shows 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 NOx burners, to 

address the NOx 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 replaced 

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 of 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 

specific 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 permitting 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 

property 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, including 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 regulation (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 considered 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 in Indian country. This commenter (0108) stressed that local 

tribes are best able to determine appropriate setback distances, and noted that the FBIR 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) stated 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 government. 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 Mineral 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) observed 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 for EPA to look to 

state law or impose state setback requirements in 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 requirements 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 (0081, 0109) recommended that EPA include a monitoring 

requirement for ozone and NOx 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)

further 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 responsibility 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 quality 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 employed 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, 

conservation and children’s health groups seeking source monitoring for ozone [see EPA-HQOAR-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 National 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 

monitoring 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 individual 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 section 

114(a)(1) are source specific, and that nothing in section 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 ambient air quality monitoring is typically 

considered a section 110 function that is undertaken by the implementing authority (state, tribe, 

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. One 
36

commenter (0113) stated that the expense of imposing this extremely costly requirement on 

operators would 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 tribes to 

address how an appropriate regulatory agency will 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 ambient 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 minimize 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 capable 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 operators 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 compliance 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 incorporate 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 discussions of same. The commenter (0119) recommended that EPA incorporate two 

next generation compliance measures included in NSPS, subpart OOOO: (1) the photographic 
37

verification and self-certification requirements in 40 CFR. 60.5420(b) to file a streamlined, selfcertified 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 verification 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 sources 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 Congressional 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 penalty. 

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 variety 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, 0107, and 0108) stated that EPA has not 

adequately consulted with tribes 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 tribes 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 applicable to activities on tribal 

lands. All three commenters (0082, 0107, 0108) stated that EPA must fully consider the views 
38

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 tribal member’s concerns, their economic development goals, and the effects of air 

quality problems on tribal members, so that EPA can draft regulations in the best interests of the 

tribe. 

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 July 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 and 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 significant time would be required by organizations to do a thorough and complete job 

reviewing and drafting comments. One commenter (0065) noted that the 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 that 
39

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 CO2 as an air 

pollutant would harm the economy, while another anonymous commenter (0069) stated that 

methane is a dangerous GHG that must be regulated.