# Review of New Sources and Modifications in Indian Country (Tribal NSR Rules)
Rules Comments Summary

# Common NSR Terms

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##  

# Potential to Emit (PTE) – maximum capacity of a source to emit a pollutant  

# Allowable emissions – enforceable emission limitations on maximum capacity  

# Actual emissions – current source emissions  

# Projected actual emissions - source’s estimate of future actual emissions (future actual)

# Summary of Public Comments Received

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## 57 Total Comments

# Tribal Minor NSR Rule

Rule Comments Summary

# Minor NSR Applicability – New Sources

 

# Proposed that applicability test for new minor sources will be based on potential to emit

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### Supporting 2 General Supporting Comment 1 tribe 1 industry • Agree with definition of minor source, but the definition should accommodate any deminimis thresholds or insignificant source categories or activities

# Minor NSR Applicability – Modifications

 

# Proposed that applicability test for minor modifications will be based on allowable emissions instead of actual emissions (allowable - to - allowable test)

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### Supporting 13 Opposing 19 General Opposing Comment 6 tribes 6 industries 1 air agency 8 tribe 3 industries 2 air agencies 1 enviro 5 citizens • Less stringent and will be tied - up in litigation • Introduces unnecessary complexity - test is different than the one used for the major NSR program • Actual emissions test is preferable • Actual -to - projected actual test would be acceptable

# Minor NSR Applicability – Fugitive Emissions

 

# Asked for comment on whether we should account for fugitive emissions during minor NSR applicability determinations for new minor sources or minor modifications

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### Supporting 8 Opposing 11 General Opposing Comment 4 tribes 2 citizens 1 air agency 1 enviro 9 industries 2 tribes •Too excessive for the miniscule minor source emissions •Time - consuming and resource - intensive for those unfamiliar with concepts • Compliance costs for minor sources could be substantial and imposing this requirement without sound reason is partially arbitrary

# Proposed Minor NSR Thresholds (cutoff levels for which minor sources with emissions lower than the thresholds would be exempt from the minor NSR rules - vary by pollutant and area classification)

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### Regulated NSR Pollutant Nonattainment Areas Attainment Areas Carbon monoxide (CO) 5 10 Oxides of nitrogen (NO x) 5 10 Sulfur dioxide (SO2) 5 10 Volatile organic compounds (VOC) 2 5 PM 5 10 PM - 10 1 5 PM - 2.5 0.6 3 Lead 0.1 0.1 Fluorides NA 1 Sulfuric acid mist NA 2 Hydrogen sulfide (H2S) NA 2 Total reduced sulfur (including H2S) NA 2 Reduced sulfur compounds (including H2S) NA 2 Municipal waste combustor emissions NA 2 Municipal solid waste landfills emissions NA 10

# Minor NSR Thresholds (Continued)

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### Levels of the Proposed Thresholds

Supporting 1 Opposing 6 General Opposing Comments 1 enviro 6 industries • Raise thresholds to reduce administrative burden • Other comments: •VOC threshold too burdensome for oil and gas industry – 6 industries, 1 tribe • CO threshold should be raised in relation to other NSR pollutants, trade - off between NO 2 and CO – 2 industries 

### Establishment of Minor NSR Thresholds

Supporting 8 General Supporting Comments 2 tribes 4 industry 2 citizens • Some specifically endorsed setting thresholds in tons per year • EPA needs to adjust the minor NSR thresholds periodically based on monitoring data

# List of Exempted Units and Activities

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## Proposed list of exempted units and activities because they either do not emit regulated NSR pollutants to the ambient air or emit these pollutants in negligible amounts. The list includes: 1. 

### Air- conditioning units for comfort that are not subject to applicable requirements under title VI of the Act and do not exhaust air pollutants into the ambient air from any manufacturing or industrial process 2. 

### Ventilating units for comfort that do not exhaust air pollutants into the ambient air from any manufacturing or other industrial process 3. 

### Heating units for comfort that do not provide heat for any manufacturing or other industrial process 4. 

### Noncommercial food preparation 5. 

### Consumer use of office equipment and products 6. 

### Janitorial services and consumer use of janitorial products 7. 

### Internal combustion engines used for landscaping purposes 8. 

### Bench scale laboratory activities, except for laboratory fume hoods and vents 9. 

### Any emissions unit or activity that does not have the potential to emit a regulated NSR pollutant or HAP, so long as that emissions unit or activity is not part of a process unit that emits or has the potential to emit a regulated NSR pollutant or HAP

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Supporting 0 Opposing 10* General Opposing Comments 1 tribe 7 industry 1 air agency 1 citizen • List will not help reduce administrative burden • Not including a de minimis exemption or adding the insignificant source categories or activities that are included in many State programs is a concern * Commenters opposed the few units/activities on the list, not the promulgation of a list of exempted units/activities

# Case - by - Case Technology Review

Supporting 6 Opposing 11 General Opposing Comments 6 tribes 1 tribe 8 industry 1 enviro 1 air agency •A control technology requirement under the minor NSR program should not be included •Many sources are already subject to technology based standards thus further control requirements are unwarranted • EPA has no authority to impose a control technology requirement under section 110(a)(2)(C) of the Act •Control technology determinations under the program will not be consistent among different reviewing authorities

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## Proposed case - by - case control technology review based on a consideration of:  

## Local air quality needs  

## Typical control technology used by similar sources in surrounding areas  

## Anticipated economic growth in the area  

## Cost - effective control alternatives

# Air Quality Impact Analysis (AQIA)

Supporting 10* Opposing 7 General Opposing Comments 4 tribes 3 industries 1 air agency 1 enviro 1 citizen 6 industries 1 tribe •Requirement excessive, costly and time consuming for small businesses •Rarely used in States’ minor NSR programs • Should be used in rare instances and fugitives should not be included in modeling analysis •If finalized, requirements should include prescribed screening procedures for when AQIAs must be performed * Support, but suggest that more specific or stringent requirements should be finalized  

# Proposed to require AQIA at the discretion of the reviewing authority:  

## Only if concerned minor source will cause or contribute to a NAAQS or PSD increment violation

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# Treatment of Existing Minor Sources

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# Proposed three options for how to treat existing minor sources once the rule is finalized: Option 1 – New permit not needed initially, only when a minor modification triggers NSR Supporting - 12 Opposing - 3 General Opposing Comments 9 industries 3 tribes 1 air agency 1 citizen 1 enviro •Air quality impacts are not addressed Option 2 – New permit not needed initially, but existing sources must register

within 1 year after rule’s effective date Supporting - 15 Opposing - 1 General Opposing Comments 10 tribes 3 air agencies 1 enviro 1 citizen 1 tribe •Too burdensome for existing minor sources
Option 3 – Existing

minors need new permit shortly after

the rule is final Supporting - 4 Opposing – 5 General Opposing Comments 2 tribes 2 citizens 3 industries 1 tribe 1 air agency •Overwhelming on EPA’s resources; will cause construction delays • Burdensome on oil & gas industry

# Treatment of Existing Synthetic Minor Sources

Option 1 – Existing synthetic minors would need a new permit and must submit a permit application within 1 year of rule’s effective date Supporting 6 Opposing 2 General Opposing Comments 4 tribes 1 enviro 1 citizen 2 industries • Should not be allowed for HAPs • Burdensome on oil & gas industry  

# Proposed that:  

## Existing synthetic minors would need a new permit and must submit a permit application within 1 year of rule’s effective date  

## Failure to meet the new application deadline results in source becoming subject to all requirements for major sources

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# General Permits

Supporting 10 Opposing 1 General Supporting Comments 8 industries 2 tribes 1 enviro • Permitting should be streamlined using guidance, rather than using general permits  

## Proposed that:  

## EPA would have authority to issue general permits  

## GPs will be developed by HQs and/or the Regions, will be issued through a notice and comment procedure, and must be appealed at the time of GP issuance  

## After GP is developed, public can appeal the applicability of a GP to a particular source, not the GP itself  

## Reviewing authority may grant or deny construction under a GP without repeating public noticing procedures used to develop the GP (GP considered final agency action)  

## Public notified about the approval of a GP for a particular facility by letter posted at the facility

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# Case - by - case MACT determinations

Supporting 3 Opposing 1 General Opposing Comments 2 tribes 1 industry 1 industry • Source should not apply for minor source permit, instead apply for a major source permit which would require case - by- case MACT  

## MACT compliance determined on a case - by - case basis if:  

## No MACT standard for a source category has been established  

## There is no EPA - approved program  

## Act provides review options for these determinations  

## Using a Title V permit  

## Applying and obtaining a Notice of MACT approval  

## Any other administrative procedures for preconstruction review and approval  

## Proposed that minor NSR program will be used as one of the “other administrative procedures for preconstruction review and approval”  

## Applicable sources will be major for HAPs and minor for NSR  

## Sources will eventually need a Part 71 permit for major HAP emissions

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# Monitoring, Recordkeeping and Reporting Provisions
 

# Monitoring  

## Should de sufficient to assure compliance with any control technology requirements contained in permit  

### May include: CEMS, PEMS, CPMS, equipment inspections, mass balances, periodic performance tests and/or emissions factors  

# Recordkeeping  

## Should be sufficient to assure compliance with the enforceable emission limitations in each permit and records should be retained for 5 years  

# Reporting:  

## Annual monitoring reports showing compliance with emission limitations required  

## Prompt reports of deviations from permit requirements should be submitted

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### Supporting 0 Opposing 6 General Opposing Comments 5 industries 1 tribe  Requirements too burdensome and not justified for minor sources

# Public Participation Requirements

Supporting 3 Opposing 11 General Opposing Comment 2 tribes 1 air agency 3 tribes 5 industries 2 air agencies 1 enviro • More stringent than State minor NSR programs • Match environmental significance with public notice period • Add de minimis thresholds below which sources would be exempt from public notice and participation requirements 18  

# Proposed that for s ite - specific permits the reviewing authority:  

## Must provide a 30 - day public comment period on the draft permit  

## Must mail a notice of the draft permit to the applicant, the Indian Governing Body, and the tribal, state and local air pollution authorities outside Indian country that may be affected by the proposed source  

## May use additional approaches to public noticing such as websites, newspapers, and mailing lists  

# Proposed that for general permits the reviewing authority:  

## Must public notice the initial issuance of the general permit, applicability of a general permit to an individual source would not be public noticed

# Proposed Tribal Major Nonattainment NSR Program
Rule Comments Summary

# Offset Waivers

Economic Development Zone Option Supporting 2 Opposing 6 General Opposing Comment 1 tribe 1 industry 4 tribes 1 air agency 1 enviro •Data used to develop this option is old. •There has been significant development in Indian country in the past 20 years and thus this option will not be available to tribes. •In the absence of a TIP, this precondition for offset relief would not be met in Indian country Appendix S Paragraph IV Option Supporting 3 Opposing 4 General Opposing Comment 2 tribes 1 industry 1 tribe 1 air agency 1 enviro 1 citizen •Option “buys time” for sources, its weakening environmental protection.  

## In nonattainment areas, the Clean Air Act requires emissions reductions (offsets) from existing sources in the area of the proposed source (whether or not under the same ownership) to obtain reasonable progress towards attainment of the applicable NAAQS.  

## We proposed two options to address the lack of available offsets in Indian country:

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# Compliance Certification Review Area

State - wide Supporting 4 Opposing 1 General Opposing Comments 2 Tribes 1 air agency 1 industry 1 industry •Will give EPA overreaching authority over SIP - approved facilities Indian countrywide Supporting 1 Opposing 4 General Opposing Comments 1 tribe 4 tribes • Prefer nationwide compliance Per Tribe Supporting 3 General Supporting Comments 2 tribes 1 industry • Indian country- wide certification burdensome • More consistent with treating individual tribes as states  

## Clean Air Act Section 173 requires source owners/operators to certify that the owner/operator is complying with all applicable air regulations. The certification must cover all facilities owned/operated by such person in the same State.  

## Asked for comments as to whether that certification, for purposes of the Tribal NA major NSR rule, should be State - wide, Indian country - wide or Per Tribe.

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# Provisions Applicable To Both Rules

Rule Comments Summary

# Permit Appeals (Proposed Two Options for Permit Appeals)

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## Appeals must be filed within 30 days after a final permit decision has been issued  

## Upon filing of a petition for review, the permit will be stayed  

## Motion to reconsider the final EAB order must be filed within 10 days  

## If all remedies are exhausted, person may appeal to Federal Court  

## Permits:  

## are effective upon issuance  

## not stayed by filing for an appeal  

## To stay a permit, petition under the Administrative Procedures Act (APA) 5 U.S.C. 705 must be filed  

## Source can have permit revoked after proceeding with construction while appeal was pending 

# Administrative Permit Appeals Judicial Permit Appeals

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# Permit Appeals (Continued)

Environmental Appeals Board (EAB) Option Supporting 5 Opposing 3 General Opposing Comments 4 tribes 1 state 1 tribe 2 industry •Permit stay provision will encourage abuse and delays •Permit stay too burdensome for minor sources, not consistent with state programs Federal Court of Appeals Option Supporting 8 General Supporting Comments 5 industry 2 tribes 1 air agency • Permit effective upon issuance. • Source determines construction commencement. • More consistent with State minor NSR programs. •Less burdensome on government resources.

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# Permit Reopening Provisions

Supporting 2 Opposing 4 General Opposing Comments 1 tribe 1 industry 4 industries •More stringent than Title V and other NSR programs •Potential for abuse and disruption of permit process • EPA, reviewing authorities or only those commenters who provided substantial comments should be allowed to reopen permit

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# Proposed that:  

## Any person (including the permittee) may petition the reviewing authority to reopen a permit for a cause  

## The reviewing authority may commence a permit reopening in its own initiative if it contains a material mistake or fails to assure compliance with applicable requirements

# Other Significant Comments

Rule Comments Summary

# Delegation of Enforcement Authority to Tribes

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# We proposed that when a tribe requests delegation of the Federal NSR Program EPA will retain all enforcement authority (civil and criminal enforcement)

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## Any permits issued under the Federal program (even when issued by a Tribe acting on EPA’s behalf pursuant to a delegation agreement) remain Federal in character and continue to be enforceable by Federal court  

# Commenters still requested delegation of enforcement authority

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## Supporting 14 General supporting comments 14 tribes •

### Delegation of the program to Tribes should include enforcement authority •

### Give Tribes option of requesting delegation of enforcement authority • 

### Some states are exercising enforcement authority under their minor NSR programs; should be available for Tribes as well •

### EPA does not guarantee handling enforcement/violations

# Implementing the Minor NSR Rule in Phases

Delayed Rule Implementation Supporting 4 General supporting comments 3 industries 1 air agency •Work with synthetic minors first and then true minor sources •Delay effective date up to 12 or 18 months after promulgation •Postpone implementing minor program until sufficient experience and knowledge is gathered from implementing the major NA
- NSR program  

# Proposed that entire rule would be effective 60 days after publication in the Federal Register  

# Commenters raised concerns about workload rule might bring and suggested that we should delay implementation of the rule

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