EPA streamlines tribal oil and gas minor NSR process

On July 15, 2019, EPA proposed revisions to the federal implementation plan for tribal minor NSR program addressing “true minor” oil and gas sources. The proposed revision would adjust the registration requirements for true minor sources to allow concurrent submittal of the registration Part 1 form and Endangered Species Act/National Historic Preservation Act (ESA/NHPA) screening materials. This potentially may save 30 days in the permitting and construction process.

ANALYSIS

EPA promulgated an oil and gas federal implementation plan (O&NG FIP) as part of the tribal minor NSR program. The O&NG FIP had allowed “true minor” sources to obtain authorization to construct on an expedited basis. Currently, sources must submit the Part 1 registration statement and, if they have already completed ESA/NHPA materials with another federal agency, they can submit those materials to the EPA regional office for approval and clearance. If the proposed source has not already done that, then it currently must submit the ESA/NFPA clearance materials 30 days in advance of the registration. The Part 2 registration form must be submitted within 60 days of startup.

In the proposed rule, EPA proposes to allow sources to concurrently submit the ESA/NHPA materials at the same time as the Part 1 registration materials and then to proceed with the proposed construction 30 days after submittal, provided that it has received approval of its ESA/NHPA clearance from EPA. EPA also proposes to change the time frame for submittal of the registration from “30 days in advance” to “at least 30 days in advance” of construction.

Under the proposal, the new timeline would be as follows, depending upon the acceptability of the ESA/NHPA screening materials:

Path 1: ESA/NHPA materials acceptable

• On day 1, a source would submit its Part 1 Form and screening procedures documentation;

• On day 15, the EPA could notify the source that it has satisfactorily completed the screening procedures;

• On day 31, the source could begin construction.

Path 2: ESA/NHPA materials not acceptable

• On day 1, a source would submit its Part 1 Form and screening procedures documentation;

• On day 29, the EPA could notify the source that additional documentation is required and specify that it must be submitted within 15 days.

• If the owner or operator timely submits sufficient documentation, the date that construction may begin shifts to the date when the EPA subsequently notifies the owner or operator that the screening procedures have been satisfactorily completed, which would extend more than 30 days after submitting the Part 1 Form.

EPA is proposing a similar change to the tribal minor NSR rule at 40 CFR 49.160(c)(1)(iv) to allow submittal “at least 30 days in advance” of construction.

COMMENTARY

The proposal is part of the EPA “lean” initiative pioneered by former Deputy Administrator Henry Darwin. The co-processing of the registration and ESA/NHPA materials reduces the time required without reducing environmental protections.