THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, DC. 20460 

PRO1 

Ms. Amy Farrell 

Vice President of Regulatory Affairs 

America's Natural Gas Alliance 

701 Eighth Street, NW, Suite 800 

Washington, D.C. 20001 

Dear Ms. Farrell: 

I am providing the U.S. Environmental Protection Agency's initial response to the letters of August 30, 

2011, and November 4, 2011, from the American Petroleum Institute, the Independent Petroleum 

Association of America and America's Natural Gas Alliance regarding the final rule, "Review of New 

Sources and Modifications in Indian Country," the Tribal New Source Review Rule. 

As discussed in the enclosure, the EPA concludes that partial reconsideration of the Tribal New Source 

Review Rule is appropriate. Specifically, with respect to the 15 items raised in the November 4, 2011, 

letter, the EPA intends to grant reconsideration on items 6 and 17 as set forth in the enclosure and will 

continue to evaluate the remaining items. 

With respect to the three main items raised in the August 30, 2011, letter, items 1,2 and 3 as set forth in 

the enclosure, the EPA denies reconsideration and your request that the rule be stayed. 

The EPA will publish in the Federal Register a notice announcing this partial reconsideration and will 

publish a separate Federal Register notice in the near future that will address the specific issues for 

which we are granting reconsideration. 

I appreciate your interest in this important matter. 

This paper is printed with vegetable-oil-based inks and is 100-percent postconsumer recycled material, chlorine-free-processed and recyclable.
Response to Petitions for Reconsideration: Review of New Sources and Modifications in Indian Country' 

In a letter dated August 30, 2011, American Petroleum Institute (API), the Independent Petroleum 

Association of America (IPAA) and America's Natural Gas Alliance (ANGA) (collectively the 

Petitioners), petitioned the EPA to, among other matters: 

(1) Reconsider the effective date of the final rule as it applies to synthetic minor sources; 

(2) Administratively stay the Tribal NSR Rule as it applies to synthetic minor permits while the 

rule is in reconsideration under the authority of section 307(d)(7)(B), 42 U.S.C. 7607(d)(7)(B), 

or while the rule is pending judicial review under section 705 of the APA, 5 U.S.C. 705; 

(3) Confirm that, during the administrative stay, the 1999 policy memo on synthetic minor 

sources in Indian Country (Potential to Emit (PTE) Transition Policy) 2 may be used to establish 

synthetic minor status for Prevention of Significant Deterioration (PSD) applicability purposes. 

In a letter dated November 4, 2011, the Petitioners repeated six items that were also identified in the 

August 30, 2011, letter and raised additional items of concern. These included: 

(4) Shortening the time required to obtain a minor source permit and eliminating the 

Environmental Appeals Board (EAB) permit appeals process for all permits; 

(5) Issuing a general permit (GP) for oil and gas facilities; 

(6) Allowing the use of GPs for synthetic minor sources; 

(7) Shortening the 90-day time period allowed for the EPA to make the determination of whether 

a source is eligible for coverage under a GP; 

(8) Providing more streamlined procedures for public noticing the request for coverage under a 

GP;

(9) Establishing September 2, 2014, as the implementation deadline for sources seeking sitespecific permits and general permits; 

(10) Revising the rule to reflect the delineation of tribal/federal authority and to provide clarity 

as to where the program applies; 

(11) Stating that the emissions limitations needed to avoid Part 71/Title V applicability do not 

need to be established under the Tribal Minor NSR program; 

The Tribal NSR Rule includes two sets of regulations. The first rule, the "Federal Minor New Source Review Program in 

Indian Country" (the Tribal Minor NSR Rule), applies to new and modified minor stationary sources and to minor 

modifications at existing major stationary sources throughout Indian Country. The second rule, "Federal Major New Source 

Review Program for Nonattainment Areas in Indian Country" (the Tribal Nonattainment NSR Rule), applies to new and 

modified major sources in areas of Indian Country designated as not attaining the National Ambient Air Quality Standards. 

2 John S. Seitz and Eric V. Schaeffer. Policy memo. "Potential to Emit (PTE) Transition Policy for Part 71 Implementation 

in Indian Country." March 7, 1999.
(12) Stating explicitly that a permit is not required for true minor sources until September 2, 

2014; 

(13) Streamlining the minor NSR program by: reducing the amount of information requested in 

registration applications; streamlining final permit notification requirements; not requiring 

annual reports in all cases; shortening the deadline for submitting notice of relocation; and 

raising the de minimis applicability cut-offs; 

(14) Streamlining the registration requirement by reducing the amount of information required to 

be initially submitted and by allowing companies to submit combined registrations covering 

multiple sources; 

(15) Including portable sources within the permitting exemption we issued for mobile sources; 

(16) Finalizing the proposed nonattainment NSR Appendix S Paragraph VI waiver option, in 

conjunction with deferring attainment deadlines under the Tribal Authority Rule (TAR); 

(17) Reducing the relocation reports notice requirement to less than 30 days before the source 

plans to relocate; and 

(18) Regulating non-National Ambient Air Quality Standards (NAAQS) pollutants under the 

Tribal Minor NSR Rule. The EPA does not have the authority to require the minor NSR program 

to apply beyond the NAAQS pollutants and precursors. 

In the August and November 2011 letters, the Petitioners requested that the EPA reconsider the rule 

under the authority of CAA, section 307(d)(7)(B), 42 U.S.C. section 7607(d)(7)(B). Items 6 and 17 

listed above and associated with the Petitioners' November request meet the requirements for 

reconsideration under section 307(d)(7)(B) of the CAA and hence the EPA intends to grant 

reconsideration with respect to those items. Please note that during the reconsideration process, the items 

under reconsideration will continue to be in effect. Regarding your request that the EPA allow the use of 

general permits to establish synthetic minor sources (item 6), while we are granting reconsideration of 

that issue, we believe that it may not be appropriate to allow the use of this mechanism for all source 

categories and will further evaluate the appropriate scope of any such change in the context of the 

reconsideration proposal. With respect to items 4-5 and 7-16 and 1 8 listed above and associated with the 

Petitioners' November request, we are continuing to evaluate these items at this time. 

Regarding items 1-3 listed above and associated with Petitioners' August 30, 2011, letter, these items do 

not meet the requirements for reconsideration under CAA section 307(d)(7)(B). Rather, as discussed 

below. Petitioners' concerns regarding these issues appear to be based on a misunderstanding of the 

Tribal Minor NSR Rule provisions. We, therefore, deny reconsideration of these items and your request 

that the rule be stayed. 

For sources whose potential to emit (PTE) exceeds major source levels, the requirement to obtain a 

permit pursuant to the major source PSD permit program (a PSD permit) prior to beginning actual 

construction has existed in Indian Country for many years and the Tribal Minor NSR Rule did not 

change that fundamental requirement. Rather, the Tribal Minor NSR Rule provides such sources with a 

simpler alternative: instead of obtaining a PSD Permit, a source that chooses to do so can limit its PTE
to below the major source thresholds by obtaining what is known as a synthetic minor source permit. 

The Tribal Minor NSR Rule makes that option, which has previously been available in most states, 

available to sources in Indian Country3 . As stated in the proposed rule "one of the primary objectives of 

this rulemaking is to create a mechanism by which owners or operators of sources whose PTE exceeds 

major source levels can obtain emission limitations for such sources that are enforceable as a practical 

matter, so that they can become 'synthetic minor sources' and avoid major source status." (71 FR 48696, 

48714, August 21, 2006). Thus, rather than delaying construction in Indian Country, the provision was 

intended to expedite the required permitting process and we believe that it will do so. It is important to 

note that sources are only required to obtain a synthetic minor permit if they wish to limit their PTE to 

below the major source thresholds and thereby avoid major source PSD. A source always has the option 

of obtaining a PSD Permit. A delay in the effective date of the Tribal Minor NSR Rule as it applies to 

synthetic minor sources would only delay the availability of the alternative, simpler permitting path, not 

only for the oil and gas sources represented by the Petitioners, but all other source categories in Indian 

Country. As a result, all sources in areas attaining the NAAQS with a PTE above the major source 

thresholds would need to obtain a preconstruction PSD Permit. 

To address industry and tribal concerns about possible delays in permitting, the EPA is taking a number 

of steps to facilitate easier implementation of the Tribal Minor NSR Rule. For example, we are 

developing general permits and/or permits-by-rule for some common source categories in Indian 

Country to streamline the permitting process for these sources. We also recently promulgated the Oil 

and Gas New Source Performance Standard (NSPS) for sources nationwide, along with a Federal 

Implementation Plan (FIP) specifically for the Ft. Berthold Indian Reservation in North Dakota that will 

limit the emissions from sources that may otherwise be required to obtain PSD permits. We will 

continue to pursue these and other steps to streamline permitting and facilitate easier implementation of 

the Tribal Minor NSR Rule. 

Regarding the 1999 PTE Transition Policy, per the title, the policy memo only exempted certain sources 

from the requirement to obtain a federal Part 71 operating permit. 4 As such, the policy memo was never 

intended to create a mechanism to enable sources to obtain synthetic minor status for PSD applicability 

purposes. Further, the policy specifically states: "The EPA would implement this policy from the date of 

this memorandum until either the EPA adopts and implements a mechanism that a source can use to 

limit its PTE, or the EPA explicitly approves a tribe's or state's program providing such a mechanism 

for the relevant area of Indian Country. Where the mechanism is the federal preconstruction permit 

program referred to above, this policy would extend to a date to be specified in the rule that establishes 

the preconstruction program." ("Potential to Emit (PTE) Transition Policy for Part 71 Implementation in 

Indian Country" at 4 -5). In the preamble to the proposed Tribal Minor Source NSR Rule, we stated: 

"[U]pon the effective date of these rules when promulgated, the PTE transition policy will expire and 

you will have to obtain a permit under this minor NSR program for any subsequent synthetic minor 

sources" (71 FR 48696, 48714, August 21, 2006). In the preamble to the final Tribal Minor NSR Rule 

we stated: "This minor NSR program adopts and implements a mechanism that you can use to limit your 

potential to emit and as such it terminates the PTE transition policy" (76 FR 38748, 38769). We, 

Prior to promulgation of the Tribal Minor NSR Rule, the primary mechanism through which a source planning to locate in 

Indian Country could limit its PTE to below the major source thresholds was the issuance of a source-specific FIP. 

' As stated in the memo, the "EPA would treat a source [in Indian Country] as non major for the purposes of the federal 

Operating Permits Program (part 71) if its actual emissions are and remain below 50 percent of the [Potential to Emit] 

PTE thresholds for major source status, for every consecutive 12-month period .. and it maintains adequate records to 

demonstrate that its actual emissions are kept below these levels." "Potential to Emit (PTE) Transition Policy for Part 71 

Implementation in Indian Country" at I (emphasis added).

3 of4
therefore, believe it would be contrary to the Tribal Minor NSR Rule to allow major sources to continue 

to use this policy even for title V purposes, much less PSD purposes. 

In summary, for the reasons discussed above, the EPA concludes that partial reconsideration of the 

Tribal Minor NSR Rule is appropriate.
THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, DC. 20460 

Mr. Lee Fuller 

Vice President of Government Relations 

Independent Petroleum Association of America 

1201 15th Street, NW, Suite 300 

Washington, D.C. 20005 

I am providing the U.S. Environmental Protection Agency's initial response to the letters of August 30, 

2011, and November 4, 2011, from the American Petroleum Institute, the Independent Petroleum 

Association of America and America's Natural Gas Alliance regarding the final rule, "Review of New 

Sources and Modifications in Indian Country," the Tribal New Source Review Rule. 

As discussed in the enclosure, the EPA concludes that partial reconsideration of the Tribal New Source 

Review Rule is appropriate. Specifically, with respect to the 15 items raised in the November 4, 2011, 

letter, the EPA intends to grant reconsideration on items 6 and 17 as set forth in the enclosure and will 

continue to evaluate the remaining items. 

With respect to the three main items raised in the August 30, 2011, letter, items 1,2 and 3 as set forth in 

the enclosure, the EPA denies reconsideration and your request that the rule be stayed. 

The EPA will publish in the Federal Register a notice announcing this partial reconsideration and will 

publish a separate Federal Register notice in the near future that will address the specific issues for 

which we are granting reconsideration. 

I appreciate your interest in this important matter.

Sincerely, 

Lisa P. Jac son 

Enclosure 

This paper is printed with vegetable-oil-based inks and is 100-percent postconsumer recycled material, chlorine-tree-processed and recyclable
Response to Petitions for Reconsideration: Review of New Sources and Modifications in Indian Country' 

In a letter dated August 30, 2011, American Petroleum Institute (API), the Independent Petroleum 

Association of America (IPAA) and America's Natural Gas Alliance (ANGA) (collectively the 

Petitioners), petitioned the EPA to, among other matters: 

(1) Reconsider the effective date of the final rule as it applies to synthetic minor sources; 

(2) Administratively stay the Tribal NSR Rule as it applies to synthetic minor permits while the 

rule is in reconsideration under the authority of section 307(d)(7)(B), 42 U.S.C. 7607(d)(7)(B), 

or while the rule is pending judicial review under section 705 of the APA, 5 U.S.C. 705; 

(3) Confirm that, during the administrative stay, the 1999 policy memo on synthetic minor 

sources in Indian Country (Potential to Emit (PTE) Transition Policy) 2 may be used to establish 

synthetic minor status for Prevention of Significant Deterioration (PSD) applicability purposes. 

In a letter dated November 4, 2011, the Petitioners repeated six items that were also identified in the 

August 30, 2011, letter and raised additional items of concern. These included: 

(4) Shortening the time required to obtain a minor source permit and eliminating the 

Environmental Appeals Board (EAB) permit appeals process for all permits; 

(5) Issuing a general permit (GP) for oil and gas facilities; 

(6) Allowing the use of GPs for synthetic minor sources; 

(7) Shortening the 90-day time period allowed for the EPA to make the determination of whether 

a source is eligible for coverage under a GP; 

(8) Providing more streamlined procedures for public noticing the request for coverage under a 

(9) Establishing September 2, 2014, as the implementation deadline for sources seeking sitespecific permits and general permits; 

(10) Revising the rule to reflect the delineation of tribal/federal authority and to provide clarity 

as to where the program applies; 

(11) Stating that the emissions limitations needed to avoid Part 71/Title V applicability do not 

need to be established under the Tribal Minor NSR program; 

The Tribal NSR Rule includes two sets of regulations. The first rule, the "Federal Minor New Source Review Program in 

Indian Country" (the Tribal Minor NSR Rule), applies to new and modified minor stationary sources and to minor 

modifications at existing major stationary sources throughout Indian Country. The second rule, "Federal Major New Source 

Review Program for Nonattainment Areas in Indian Country" (the Tribal Nonattainment NSR Rule), applies to new and 

modified major sources in areas of Indian Country designated as not attaining the National Ambient Air Quality Standards. 

2 John S. Seitz and Eric V. Schaeffer. Policy memo. "Potential to Emit (PTE) Transition Policy for Part 71 Implementation 

in Indian Country." March 7, 1999.

1 of4
(12) Stating explicitly that a permit is not required for true minor sources until September 2, 

2014; 

(13) Streamlining the minor NSR program by: reducing the amount of information requested in 

registration applications; streamlining final permit notification requirements; not requiring 

annual reports in all cases; shortening the deadline for submitting notice of relocation; and 

raising the de minimis applicability cut-offs; 

(14) Streamlining the registration requirement by reducing the amount of information required to 

be initially submitted and by allowing companies to submit combined registrations covering 

multiple sources; 

(15) Including portable sources within the permitting exemption we issued for mobile sources; 

(16) Finalizing the proposed nonattainment NSR Appendix S Paragraph VI waiver option, in 

conjunction with deferring attainment deadlines under the Tribal Authority Rule (TAR); 

(17) Reducing the relocation reports notice requirement to less than 30 days before the source 

plans to relocate; and 

(18) Regulating non-National Ambient Air Quality Standards (NAAQS) pollutants under the 

Tribal Minor NSR Rule. The EPA does not have the authority to require the minor NSR program 

to apply beyond the NAAQS pollutants and precursors. 

In the August and November 2011 letters, the Petitioners requested that the EPA reconsider the rule 

under the authority of CAA, section 307(d)(7)(B), 42 U.S.C. section 7607(d)(7)(B). Items 6 and 17 

listed above and associated with the Petitioners' November request meet the requirements for 

reconsideration under section 307(d)(7)(B) of the CAA and hence the EPA intends to grant 

reconsideration with respect to those items. Please note that during the reconsideration process, the items 

under reconsideration will continue to be in effect. Regarding your request that the EPA allow the use of 

general permits to establish synthetic minor sources (item 6), while we are granting reconsideration of 

that issue, we believe that it may not be appropriate to allow the use of this mechanism for all source 

categories and will further evaluate the appropriate scope of any such change in the context of the 

reconsideration proposal. With respect to items 4-5 and 7-16 and 18 listed above and associated with the 

Petitioners' November request, we are continuing to evaluate these items at this time. 

Regarding items 1-3 listed above and associated with Petitioners' August 30, 2011, letter, these items do 

not meet the requirements for reconsideration under CAA section 307(d)(7)(B). Rather, as discussed 

below, Petitioners' concerns regarding these issues appear to be based on a misunderstanding of the 

Tribal Minor NSR Rule provisions. We, therefore, deny reconsideration of these items and your request 

that the rule be stayed. 

For sources whose potential to emit (PTE) exceeds major source levels, the requirement to obtain a 

permit pursuant to the major source PSD permit program (a PSD permit) prior to beginning actual 

construction has existed in Indian Country for many years and the Tribal Minor NSR Rule did not 

change that fundamental requirement. Rather, the Tribal Minor NSR Rule provides such sources with a 

simpler alternative: instead of obtaining a PSD Permit, a source that chooses to do so can limit its PTE
to below the major source thresholds by obtaining what is known as a synthetic minor source permit. 

The Tribal Minor NSR Rule makes that option, which has previously been available in most states, 

available to sources in Indian Country3 . As stated in the proposed rule "one of the primary objectives of 

this rulemaking is to create a mechanism by which owners or operators of sources whose PTE exceeds 

major source levels can obtain emission limitations for such sources that are enforceable as a practical 

matter, so that they can become 'synthetic minor sources' and avoid major source status." (71 FR 48696, 

48714, August 21, 2006). Thus, rather than delaying construction in Indian Country, the provision was 

intended to expedite the required permitting process and we believe that it will do so. It is important to 

note that sources are only required to obtain a synthetic minor permit if they wish to limit their PTE to 

below the major source thresholds and thereby avoid major source PSD. A source always has the option 

of obtaining a PSD Permit. A delay in the effective date of the Tribal Minor NSR Rule as it applies to 

synthetic minor sources would only delay the availability of the alternative, simpler permitting path, not 

only for the oil and gas sources represented by the Petitioners, but all other source categories in Indian 

Country. As a result, all sources in areas attaining the NAAQS with a PTE above the major source 

thresholds would need to obtain a preconstruction PSD Permit. 

To address industry and tribal concerns about possible delays in permitting, the EPA is taking a number 

of steps to facilitate easier implementation of the Tribal Minor NSR Rule. For example, we are 

developing general permits and/or permits-by-rule for some common source categories in Indian 

Country to streamline the permitting process for these sources. We also recently promulgated the Oil 

and Gas New Source Performance Standard (NSPS) for sources nationwide, along with a Federal 

Implementation Plan (FIP) specifically for the Ft. Berthold Indian Reservation in North Dakota that will 

limit the emissions from sources that may otherwise be required to obtain PSD permits. We will 

continue to pursue these and other steps to streamline permitting and facilitate easier implementation of 

the Tribal Minor NSR Rule. 

Regarding the 1999 PTE Transition Policy, per the title, the policy memo only exempted certain sources 

from the requirement to obtain a federal Part 71 operating permit. 4 As such, the policy memo was never 

intended to create a mechanism to enable sources to obtain synthetic minor status for PSD applicability 

purposes. Further, the policy specifically states: "The EPA would implement this policy from the date of 

this memorandum until either the EPA adopts and implements a mechanism that a source can use to 

limit its PTE, or the EPA explicitly approves a tribe's or state's program providing such a mechanism 

for the relevant area of Indian Country. Where the mechanism is the federal preconstruction permit 

program referred to above, this policy would extend to a date to be specified in the rule that establishes 

the preconstruction program." ("Potential to Emit (PTE) Transition Policy for Part 71 Implementation in 

Indian Country" at 4 -5). In the preamble to the proposed Tribal Minor Source NSR Rule, we stated: 

"[U]pon the effective date of these rules when promulgated, the PTE transition policy will expire and 

you will have to obtain a permit under this minor NSR program for any subsequent synthetic minor 

sources" (71 FR 48696, 48714, August 21, 2006). In the preamble to the final Tribal Minor NSR Rule 

we stated: "This minor NSR program adopts and implements a mechanism that you can use to limit your 

potential to emit and as such it terminates the PTE transition policy" (76 FR 38748, 38769). We, 

Prior to promulgation of the Tribal Minor NSR Rule, the primary mechanism through which a source planning to locate in 

Indian Country could limit its PTE to below the major source thresholds was the issuance of a source-specific FTP. 

As stated in the memo, the "EPA would treat a source [in Indian Country] as non major for the purposes of the federal 

Operating Permits Program (part 71) if its actual emissions are and remain below 50 percent of the [Potential to Emit] 

PTE thresholds for major source status, for every consecutive 12-month period ... and it maintains adequate records to 

demonstrate that its actual emissions are kept below these levels." "Potential to Emit (PTE) Transition Policy for Part 71 

Implementation in Indian Country" at 1 (emphasis added).

3 of4
therefore, believe it would be contrary to the Tribal Minor NSR Rule to allow major sources to continue 

to use this policy even for title V purposes, much less PSD purposes. 

In summary, for the reasons discussed above, the EPA concludes that partial reconsideration of the 

Tribal Minor NSR Rule is appropriate.
THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

Mr. Matt Todd 

Senior Policy Advisor 

American Petroleum Institute 

1220 L Street, NW 

Washington, D.C. 20005-4070 

I am providing the U.S. Environmental Protection Agency's initial response to the letters of August 30, 

2011, and November 4, 2011, from the American Petroleum Institute, the Independent Petroleum 

Association of America and America's Natural Gas Alliance regarding the final rule, "Review of New 

Sources and Modifications in Indian Country," the Tribal New Source Review Rule. 

As discussed in the enclosure, the EPA concludes that partial reconsideration of the Tribal New Source 

Review Rule is appropriate. Specifically, with respect to the 15 items raised in the November 4, 2011, 

letter, the EPA intends to grant reconsideration on items 6 and 17 as set forth in the enclosure and will 

continue to evaluate the remaining items. 

With respect to the three main items raised in the August 30, 2011, letter, items 1, 2 and 3 as set forth in 

the enclosure, the EPA denies reconsideration and your request that the rule be stayed. 

The EPA will publish in the Federal Register a notice announcing this partial reconsideration and will 

publish a separate Federal Register notice in the near future that will address the specific issues for 

which we are granting reconsideration. 

I appreciate your interest in this important matter.

Sincerely, 

aP.Jso 

Enclosure 

This paper is printed with vegetable-oil-based inks and is 100-percent postconsumer recycled material, chlorine-free-processed and recyclable.
Response to Petitions for Reconsideration: Review of New Sources and Modifications in Indian Country' 

In a letter dated August 30, 2011, American Petroleum Institute (API), the Independent Petroleum 

Association of America (IPAA) and America's Natural Gas Alliance (ANGA) (collectively the 

Petitioners), petitioned the EPA to, among other matters: 

(1) Reconsider the effective date of the final rule as it applies to synthetic minor sources; 

(2) Administratively stay the Tribal NSR Rule as it applies to synthetic minor permits while the 

rule is in reconsideration under the authority of section 307(d)(7)(B), 42 U.S.C. 7607(d)(7)(B), 

or while the rule is pending judicial review under section 705 of the APA, 5 U.S.C. 705; 

(3) Confirm that, during the administrative stay, the 1999 policy memo on synthetic minor 

sources in Indian Country (Potential to Emit (PTE) Transition Policy) 2 may be used to establish 

synthetic minor status for Prevention of Significant Deterioration (PSD) applicability purposes. 

In a letter dated November 4, 2011, the Petitioners repeated six items that were also identified in the 

August 30, 2011, letter and raised additional items of concern. These included: 

(4) Shortening the time required to obtain a minor source permit and eliminating the 

Environmental Appeals Board (EAB) permit appeals process for all permits; 

(5) Issuing a general permit (GP) for oil and gas facilities; 

(6) Allowing the use of GPs for synthetic minor sources; 

(7) Shortening the 90-day time period allowed for the EPA to make the determination of whether 

a source is eligible for coverage under a GP; 

(8) Providing more streamlined procedures for public noticing the request for coverage under a 

GP;

(9) Establishing September 2, 2014, as the implementation deadline for sources seeking sitespecific permits and general permits; 

(10) Revising the rule to reflect the delineation of tribal/federal authority and to provide clarity 

as to where the program applies; 

(11) Stating that the emissions limitations needed to avoid Part 71/Title V applicability do not 

need to be established under the Tribal Minor NSR program; 

The Tribal NSR Rule includes two sets of regulations. The first rule, the "Federal Minor New Source Review Program in 

Indian Country" (the Tribal Minor NSR Rule), applies to new and modified minor stationary sources and to minor 

modifications at existing major stationary sources throughout Indian Country. The second rule, "Federal Major New Source 

Review Program for Nonattainment Areas in Indian Country" (the Tribal Nonattainment NSR Rule), applies to new and 

modified major sources in areas of Indian Country designated as not attaining the National Ambient Air Quality Standards. 

2 John S. Seitz and Eric V. Schaeffer. Policy memo. "Potential to Emit (PTE) Transition Policy for Part 71 Implementation 

in Indian Country." March 7, 1999.

1 of4
(12) Stating explicitly that a permit is not required for true minor sources until September 2, 

2014; 

(13) Streamlining the minor NSR program by: reducing the amount of information requested in 

registration applications; streamlining final permit notification requirements; not requiring 

annual reports in all cases; shortening the deadline for submitting notice of relocation; and 

raising the de minimis applicability cut-offs; 

(14) Streamlining the registration requirement by reducing the amount of information required to 

be initially submitted and by allowing companies to submit combined registrations covering 

multiple sources; 

(15) Including portable sources within the permitting exemption we issued for mobile sources; 

(16) Finalizing the proposed nonattainment NSR Appendix S Paragraph VI waiver option, in 

conjunction with deferring attainment deadlines under the Tribal Authority Rule (TAR); 

(17) Reducing the relocation reports notice requirement to less than 30 days before the source 

plans to relocate; and 

(18) Regulating non-National Ambient Air Quality Standards (NAAQS) pollutants under the 

Tribal Minor NSR Rule. The EPA does not have the authority to require the minor NSR program 

to apply beyond the NAAQS pollutants and precursors. 

In the August and November 2011 letters, the Petitioners requested that the EPA reconsider the rule 

under the authority of CAA, section 307(d)(7)(B), 42 U.S.C. section 7607(d)(7)(B). Items 6 and 17 

listed above and associated with the Petitioners' November request meet the requirements for 

reconsideration under section 307(d)(7)(B) of the CAA and hence the EPA intends to grant 

reconsideration with respect to those items. Please note that during the reconsideration process, the items 

under reconsideration will continue to be in effect. Regarding your request that the EPA allow the use of 

general permits to establish synthetic minor sources (item 6), while we are granting reconsideration of 

that issue, we believe that it may not be appropriate to allow the use of this mechanism for all source 

categories and will further evaluate the appropriate scope of any such change in the context of the 

reconsideration proposal. With respect to items 4-5 and 7-1 6 and 18 listed above and associated with the 

Petitioners' November request, we are continuing to evaluate these items at this time. 

Regarding items 1-3 listed above and associated with Petitioners' August 30, 2011, letter, these items do 

not meet the requirements for reconsideration under CAA section 307(d)(7)(B). Rather, as discussed 

below, Petitioners' concerns regarding these issues appear to be based on a misunderstanding of the 

Tribal Minor NSR Rule provisions. We, therefore, deny reconsideration of these items and your request 

that the rule be stayed. 

For sources whose potential to emit (PTE) exceeds major source levels, the requirement to obtain a 

permit pursuant to the major source PSD permit program (a PSD permit) prior to beginning actual 

construction has existed in Indian Country for many years and the Tribal Minor NSR Rule did not 

change that fundamental requirement. Rather, the Tribal Minor NSR Rule provides such sources with a 

simpler alternative: instead of obtaining a PSD Permit, a source that chooses to do so can limit its PTE
to below the major source thresholds by obtaining what is known as a synthetic minor source permit. 

The Tribal Minor NSR Rule makes that option, which has previously been available in most states, 

available to sources in Indian Country3 . As stated in the proposed rule "one of the primary objectives of 

this rulemaking is to create a mechanism by which owners or operators of sources whose PTE exceeds 

major source levels can obtain emission limitations for such sources that are enforceable as a practical 

matter, so that they can become 'synthetic minor sources' and avoid major source status." (71 FR 48696, 

48714, August 21, 2006). Thus, rather than delaying construction in Indian Country, the provision was 

intended to expedite the required permitting process and we believe that it will do so. It is important to 

note that sources are only required to obtain a synthetic minor permit if they wish to limit their PTE to 

below the major source thresholds and thereby avoid major source PSD. A source always has the option 

of obtaining a PSD Permit. A delay in the effective date of the Tribal Minor NSR Rule as it applies to 

synthetic minor sources would only delay the availability of the alternative, simpler permitting path, not 

only for the oil and gas sources represented by the Petitioners, but all other source categories in Indian 

Country. As a result, all sources in areas attaining the NAAQS with a PTE above the major source 

thresholds would need to obtain a preconstruction PSD Permit. 

To address industry and tribal concerns about possible delays in permitting, the EPA is taking a number 

of steps to facilitate easier implementation of the Tribal Minor NSR Rule. For example, we are 

developing general permits and/or permits-by-rule for some common source categories in Indian 

Country to streamline the permitting process for these sources. We also recently promulgated the Oil 

and Gas New Source Performance Standard (NSPS) for sources nationwide, along with a Federal 

Implementation Plan (FIP) specifically for the Ft. Berthold Indian Reservation in North Dakota that will 

limit the emissions from sources that may otherwise be required to obtain PSD permits. We will 

continue to pursue these and other steps to streamline permitting and facilitate easier implementation of 

the Tribal Minor NSR Rule. 

Regarding the 1999 PTE Transition Policy, per the title, the policy memo only exempted certain sources 

from the requirement to obtain a federal Part 71 operating permit. 4 As such, the policy memo was never 

intended to create a mechanism to enable sources to obtain synthetic minor status for PSD applicability 

purposes. Further, the policy specifically states: "The EPA would implement this policy from the date of 

this memorandum until either the EPA adopts and implements a mechanism that a source can use to 

limit its PTE, or the EPA explicitly approves a tribe's or state's program providing such a mechanism 

for the relevant area of Indian Country. Where the mechanism is the federal preconstruction permit 

program referred to above, this policy would extend to a date to be specified in the rule that establishes 

the preconstruction program." ("Potential to Emit (PTE) Transition Policy for Part 71 Implementation in 

Indian Country" at 4 -5). In the preamble to the proposed Tribal Minor Source NSR Rule, we stated: 

"[U]pon the effective date of these rules when promulgated, the PTE transition policy will expire and 

you will have to obtain a permit under this minor NSR program for any subsequent synthetic minor 

sources" (71 FR 48696, 48714, August 21, 2006). In the preamble to the final Tribal Minor NSR Rule 

we stated: "This minor NSR program adopts and implements a mechanism that you can use to limit your 

potential to emit and as such it terminates the PTE transition policy" (76 FR 38748, 38769). We, 

Prior to promulgation of the Tribal Minor NSR Rule, the primary mechanism through which a source planning to locate in 

Indian Country could limit its PTE to below the major source thresholds was the issuance of a source-specific FIP. 

' As stated in the memo, the "EPA would treat a source [in Indian Country] as non major for the purposes of the federal 

Operating Permits Program (part 71) if its actual emissions are and remain below 50 percent of the [Potential to Emit] 

PTE thresholds for major source status, for every consecutive 12-month period ... and it maintains adequate records to 

demonstrate that its actual emissions are kept below these levels." "Potential to Emit (PTE) Transition Policy for Part 71 

Implementation in Indian Country" at 1 (emphasis added).

3 0f4
therefore, believe it would be contrary to the Tribal Minor NSR Rule to allow major sources to continue 

to use this policy even for title V purposes, much less PSD purposes. 

In summary, for the reasons discussed above, the EPA concludes that partial reconsideration of the 

Tribal Minor NSR Rule is appropriate.