EPA'S MINOR SOURCE PROGRAM IN INDIAN COUNTRY: HOW WILL IT WORK AND HOW MIGHT IT NOT?
| Jurisdiction | United States |
(Nov 2007)
EPA'S MINOR SOURCE PROGRAM IN INDIAN COUNTRY: HOW WILL IT WORK AND HOW MIGHT IT NOT?
Energy and Minerals Department
Ute Indian Tribe
Fort Duchesne, Utah
Notes
The Ute Indian Tribe has submitted comments upon EPA's proposed minor source air permitting program for areas under tribal jurisdiction. Those comments, enclosed for your reference, perhaps best reflect the concerns of a tribe which relies heavily upon responsible development of its oil and gas and other mineral resources for the economic and social well-being of its members. A separate PowerPoint presentation summarizing tribal concerns with respect to future minor source permitting in Indian Country, and the lack of a mechanism for such permitting at present, will also be provided to conference attendees.
Davis Graham & Stubbs LLP
January 19, 2007
Via Email
U.S. Environmental Protection Agency, EPA West (Air Docket)
1200 Pennsylvania Avenue, N.W.
Mail Code 6102T
Washington, D.C. 20460
Attn: Docket ID No. EPA-HQ-OAR-2003-0076
Re: Comments of the Ute Indian Tribe of the Uintah and Ouray on EPA's Proposed Federal Implementation Plan Under the Clean Air Act, Which Would Include a Minor Source NSR Rule and a Non-Attainment Major NSR Rule
To Whom It May Concern:
The Ute Indian Tribe of the Uintah and Ouray ("Ute Tribe" or the "Tribe") appreciates this opportunity to comment on the noted proposed rule. As EPA knows, the Ute Tribe is keenly interested in the responsible development of its oil and gas and other mineral resources. Revenues from mineral development fund most tribal governmental services, and are essential to providing for the economic development and wellbeing of its members. The Tribe is particularly interested in the potential benefits and burdens of the proposed rule as they relate to oil and gas exploration and production in Indian Country, whether performed by the Tribe and its wholly-owned energy company, or by private companies as contractors for or joint venturers with the Tribe. Because oil and gas exploration and production activities have traditionally involved the operation of numerous minor sources, and because the Ute Tribe is fortunate to enjoy air quality that is in attainment with national ambient air quality standards ("NAAQS"), the Ute Tribe is particularly interested in commenting upon EPA's proposed minor NSR rule.
More specifically, the Ute Tribe is interested in assuring that any minor NSR rule that is promulgated provides all oil and gas operators in Indian Country an opportunity to obtain synthetic minor permits that is comparable to the opportunity afforded operators on non-Tribal lands. The Ute Tribe is particularly sensitive to the problem of creating additional burdens and inconsistent requirements under the proposed minor NSR rule that might create a disincentive for operators to explore for and produce oil and gas in Indian Country, thereby putting the Ute Tribe at a disadvantage in the responsible development of its mineral wealth. While the Ute Tribe appreciates that EPA has attempted to balance in this proposal the protection of air resources and economic development in Indian Country, the Ute Tribe believes that the proposed minor NSR rule does not achieve the proper balance, and sacrifices a measure of much-needed economic development for more stringent protection of air resources within Indian Country than currently
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exists outside of Indian Country. These concerns are underscored and described more specifically below.
The Ute Tribe also appreciates that EPA does have broad discretion under Clean Air Act Section 110(a)(2)(C) for developing a program to regulate new and modified minor stationary sources within Indian Country, but encourages EPA to exercise that discretion more thoughtfully as it relates to the ability of the Ute Tribe and similarly-situated tribes to responsibly develop their oil and gas and other mineral resources for the benefit of Tribal members, and especially given the absence of other significant economic development opportunities. Exercising discretion in this manner is consistent with federal energy policy, which seeks to promote the efficient development of energy on Indian lands, and also to promote continued tribal self-determination. This policy finds its most complete expression in Title V of the Energy Policy Act (the "EP Act") of 2005, the Indian Tribal Energy Development and Self-Determination Act of 2005. Title V is designed to remove potential impediments to energy development on Indian lands, and to give tribe's control over development of their energy estate. Thus, it is critical that the minor NSR rule, at a minimum, avoid creating significant barriers to energy development in Indian Country.
I. Minor Source NSR Program
In its preamble for the proposed NSR rule (the "Preamble"), EPA states that it "seeks to establish a flexible preconstruction permitting program for minor stationary sources in Indian Country that is comparable to that which applies outside of Indian Country, in order to create a more level regulatory playing field for owners and operators within and outside of Indian Country." 71 Fed. Reg. at 48699. The Ute Tribe believes that this goal is of the utmost importance, and further notes that falling short of this goal will disadvantage the Ute Tribe and other similarly-situated tribes in the development of their oil and gas resources. EPA also states in the Preamble that "there is a great deal of variation among State minor NSR permitting programs . . .," and then concludes "it would be impossible to create a single program that creates precisely equivalent regulations among all areas of Indian Country and the surrounding State areas." 71 Fed. Reg. at 48700. Understanding this tension, the Tribe wishes to further underscore the need for EPA to do everything reasonably possible in promulgating a final minor NSR rule to establish a comparable, if not identical, preconstruction permitting program in Indian Country relative to State programs.
Definition of Minor Source
The Ute Tribe agrees with EPA's proposed definition of minor source as one whose "PTE is lower than an applicable major source threshold." That said, the Tribe remains concerned that this definition does not accommodate any de minimis exceptions or insignificant source categories or activities, which are common and numerous under State minor source
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preconstruction permitting programs. We address the minor NSR thresholds proposed by EPA more specifically, below.
Definition of "Modification" and What Modifications Are Subject to the Proposed Rule
EPA proposes that a modification subject to the rule is one "that would cause an increase in the allowable emissions of the affected emissions units for any regulated NSR pollutant where that would cause the emission of any regulated NSR pollutant not previously emitted." 71 Fed. Reg. at 48701. The Ute Tribe supports this definition of modification and the exemptions from this definition listed in the Preamble, including changes in ownership and routine maintenance, repair and replacement of equipment.
Proposed Minor Source Threshold
The Ute Tribe recognizes the importance of setting appropriate minor source thresholds in any final minor NSR rule. We agree that the setting of thresholds is also appropriate in Indian Country, just as it is under a number of State programs that have established cutoff levels for minor NSR permitting, below which sources are exempt from minor NSR rules. We also agree that adoption of a minor source threshold expressed as an emission rate in tons per year ("tpy") is appropriate in Indian Country. The use of emission rates, rather than air quality impacts, for applicability determinations will be less complex, less resource intensive and more straightforward for both the reviewing authority and for operators of minor sources in Indian Country.
While the Ute Tribe generally agrees with EPA's proposed approach to minor NSR thresholds, as noted above, it does not agree that the proposed threshold for volatile organic compounds ("VOCs") is appropriate, and the Tribe is also concerned that, with the exception of a few very limited exempt activities, these thresholds will apply to a whole host of minor sources and activities that will now require individual permits in Indian Country, and for which permits are typically not required outside of Indian Country. To address this concern, we urge EPA to emulate "many of the State's applicability thresholds [and] also provide a list of excluded emission units and activities." 71 Fed. Reg. at 48701. Without inclusion of an appropriately broad list of excluded emission units and activities such as exist in most State permitting programs, the Ute Tribe believes that EPA has set the NSR threshold for VOCs "so low that [it has] ensured environmental protection at the cost of discouraging economic growth." Id.
In particular, the Ute Tribe favors increasing minor NSR thresholds for volatile organic compounds from five tpy in attainment areas to ten tpy, from two tpy in "other" non-attainment areas to five tpy, and leaving the threshold at zero tpy in extreme ozone non-attainment areas within Indian Country. See Table 2, 71 Fed. Reg. at 48702. Such an upward revision also promotes consistency across NSR pollutant categories, since the threshold of ten tpy in attainment areas would be the same for carbon monoxide ("CO"), oxides of nitrogen ("NOx")
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and sulfur...
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