38748 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 49 and 51 

[EPA–HQ–OAR–2003–0076; FRL–9320–2] 

RIN 2060–AH37 

Review of New Sources and 

Modifications in Indian Country 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finalizing a 

Federal Implementation Plan (FIP) 

under the Clean Air Act (CAA or Act) 

for Indian country. The FIP includes 

two New Source Review (NSR) 

regulations for the protection of air 

resources in Indian country. The first 

rule applies to new and modified minor 

stationary sources (minor sources) and 

to minor modifications at existing major 

stationary sources (major sources) 

throughout Indian country. The second 

rule (nonattainment major NSR rule) 

applies to new and modified major 

sources in areas of Indian country that 

are designated as not attaining the 

National Ambient Air Quality Standards 

(NAAQS). These rules will be 

implemented by EPA or a delegate 

Tribal agency assisting EPA with 

administration of the rules, until 

replaced by an EPA-approved 

implementation plan. 

DATES: This final rule is effective on 

August 30, 2011. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2003–0076. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air and Radiation Docket 

and Information Center, EPA/DC, EPA 

West, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744 and the telephone 

number for the Air and Radiation 

Docket and Information Center is (202) 

566–1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jessica Montan ̃ ez, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), U.S. 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, telephone number (919) 541– 

3407, facsimile number (919) 541–5509, 

e-mail address: 

montanez.jessica@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

II. Overview of the Final Rules 

III. Background 

A. What is the New Source Review (NSR) 

program? 

1. What are the general requirements of the 

major NSR program? 

2. What are the general requirements of the 

minor NSR program? 

B. What is the basis for EPA’s authority to 

implement CAA programs in Indian 

country? 

C. What is the status of the NSR air quality 

programs in Indian country? 

D. What consultation and outreach has 

been done with Tribal leaders and 

representatives? 

IV. Final Minor NSR Program for Indian 

Country 

A. General Provisions Under the Minor 

NSR Program 

1. What is a minor source and which minor 

sources are subject to this rule? 

a. Minor Source Definition 

b. Determining Applicability for New 

Minor Sources 

2. What is a modification and which 

modifications are subject to this rule? 

a. Definition of ‘‘Modification’’ 

b. Determining Applicability for 

Modifications 

3. What are the minor NSR thresholds? 

4. What emissions units and activities at 

minor sources are exempt from this rule? 

B. Site-Specific Permits 

1. What are the requirements for permit 

applications? 

2. What technical reviews must the 

reviewing authority conduct? 

a. Control Technology Review 

b. Air Quality Impacts Analysis (AQIA) 

3. What are the permit content 

requirements? 

a. Emissions Limitations 

b. Monitoring, Recordkeeping and 

Reporting 

c. Other Permit Content Requirements 

4. What are the permit issuance 

procedures, permit term and public 

participation requirements? 

a. Permit Issuance Process 

b. Permit Term 

c. Public Participation Requirements 

5. What are the provisions for final action 

on a permit, permit reopenings, 

administrative permit revisions and 

administrative and judicial review 

procedures? 

a. Final Action on a Permit 

b. Permit Reopenings 

c. Administrative Permit Revisions 

d. Administrative and Judicial Review 

Procedures 

C. General Permits 

1. What is a ‘‘General Permit’’? 

2. What is the process for issuing general 

permits? 

3. For what categories will general permits 

be issued? 

4. What are the permit content 

requirements for general permits? 

5. What is the process that you may use for 

obtaining coverage under a general 

permit? 

D. Synthetic Minor Source Permits 

E. Case-by-Case MACT Determinations 

Under Section 112(g) of the Act 

F. Treatment of Existing Minor Sources 

Under the Final Minor NSR Program 

V. Final Major NSR Program for 

Nonattainment Areas in Indian Country 

A. What are the requirements for major 

source permitting? 

B. How is EPA addressing the lack of 

available offsets in Indian country? 

1. Economic Development Zone Option 

2. Appendix S, Paragraph VI Option 

C. How do I meet the statewide compliance 

certification requirement of the Act and 

Appendix S? 

D. What are the public participation 

requirements of this program? 

E. What are the provisions for final action 

on a permit, permit reopenings and 

administrative and judicial review 

procedures? 

1. Final Action on a Permit 

2. Permit Reopenings 

3. Administrative and Judicial Review 

Procedures 

F. How is EPA revising Appendix S? 

VI. Legal Basis, Statutory Authority and 

Jurisdictional Issues 

A. What is the basis for EPA’s authority to 

implement these NSR programs in 

Indian country? 

B. How does a Tribe receive delegation to 

assist EPA with administration of the 

Federal minor and major NSR rules? 

C. What happens to permits previously 

issued by states to sources in Indian 

country? 

VII. Implementation Issues 

A. Are Tribes allowed to collect fees for 

NSR permitting? 

B. Who retains enforcement authority in 

Indian country? 

C. What is the implementation schedule for 

the final rules? 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

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Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 38749 

1Sources located within the exterior boundaries 

of Indian reservations in Idaho, Oregon and 

Washington can apply for a non-title V operating 

permit to establish synthetic minor status under the 

FIPs applicable to those reservations until this rule 

becomes effective. See 40 CFR 49.139 and 40 CFR 

part 49, subpart M. However, after the effective date 

of this rule, sources seeking synthetic minor status 

within the exterior boundaries of Indian 

reservations in these three states as well as the rest 

of Indian country must apply for synthetic minor 

source permits under the provisions of this rule. 

2Section 112(g)(2)(B) of the Act provides that you 

may not construct or reconstruct a major source of 

HAPs unless the appropriate permitting authority 

determines that MACT for new sources will be met. 

If the Administrator has not established a MACT 

standard for the source category, the Act requires 

that MACT be determined on a case-by-case basis. 

See Section IV.E. of this preamble for more 

information on case-by-case MACT determinations. 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

IX. Statutory Authority 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

final rule include owners and operators 

of emission sources in all industry 

groups located in Indian country, EPA 

and Tribal governments that are 

delegated administrative authority to 

assist EPA with the implementation of 

these Federal regulations. Categories 

and entities potentially affected by this 

action are expected to include: 

Category NAICSa Examples of regulated entities 

Industry ....................................................... 21111 Oil and gas production/operations. 

211111 Crude petroleum and natural gas extraction 

211112 Natural gas liquid extraction. 

212321 Sand and gravel mining. 

22111 Electric power generation. 

221210 Natural gas distribution. 

22132 Sewage treatment facilities. 

23899 Sand and shot blasting operations. 

311119 Animal food manufacturing. 

3116 Beef cattle complex, slaughter house and meat packing plant. 

321113 Sawmills. 

321212 Softwood veneer and plywood Manufacturing. 

32191 Millwork (wood products mfg). 

323110 Printing operations (lithographic). 

324121 Asphalt hot mix. 

3251 Chemical preparation. 

32711 Clay and ceramics operations (kilns). 

32732 Concrete batching plant. 

3279 Fiber glass operations. 

331511 Casting foundry (Iron). 

3323 Fabricated structural metal. 

332812 Surface coating operations. 

3329 Fabricated metal products. 

33311 Machinery manufacturing. 

33711 Wood kitchen cabinet manufacturing. 

42451 Grain elevator. 

42471 Gasoline bulk plant. 

4471 Gasoline station. 

54171 Professional, scientific and technical services. 

562212 Solid waste landfill. 

72112 Other (natural gas-fired boilers).b

811121 Auto body refinishing. 

Federal government ................................... 924110 Administration of Air and Water Resources and Solid Waste Management Programs. 

State/local/Tribal government .................... 924110 Administration of Air and Water Resources and Solid Waste Management Programs. 

a North American Industry Classification System. 

b Used NAICS code designated for casino hotels. However, the projected new and modified sources listed under ‘‘other (natural gas–fired boilers)’’ include not only boilers at casino hotels, but also new sources listed as ‘‘boilers’’ and new Tribal government facilities assumed to have natural gas fired boilers. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. To determine 

whether your facility is regulated by this 

action, you should examine the 

applicability criteria in the final minor 

and major NSR programs for Indian 

country, 40 CFR 49.151 through 49.161 

and through 49.175, respectively. If you 

have any questions regarding the 

applicability of this action to a 

particular entity, contact the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

rule will also be available on the World 

Wide Web. Following signature by the 

EPA Administrator, a copy of this final 

rule will be posted in the regulations 

and standards section of our NSR home 

page located at http://www.epa.gov/nsr 

and on the Tribal air home page at 

http://www.epa.gov/oar/tribal. 

II. Overview of the Final Rules 

The EPA is ensuring that air resources 

in Indian country will be protected in 

the manner intended by the Act by 

establishing a preconstruction 

permitting program for new or modified 

minor sources, minor modifications at 

major sources, and new major sources or 

major modifications in nonattainment 

areas. In addition, we are establishing a 

minor source permitting mechanism for 

major sources that wish to voluntarily 

limit emissions to become synthetic 

minor sources 1 and for approving caseby-case maximum achievable control 

technology (MACT) determinations.2

Prior to this action, there has been no 

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38750 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

3As described in section IV.C of this preamble, 

a general permit is a preconstruction permit that 

may be applied to a number of similar emission 

units or sources. The purpose of a general permit 

is to simplify the permit issuance process for 

similar facilities so that a reviewing authority’s 

limited resources need not be expended for sitespecific permit development for such facilities. 

4 In such cases, these sources will be subject to 

the minor NSR regulations under 40 CFR 49.151– 

49.165 and/or the applicable area source regulations 

under 40 CFR part 63. These sources will not be 

subject to the major NSR regulations under 40 CFR 

52.21 (PSD) and 40 CFR 49.166 through 49.175 

(nonattainment major NSR), the major source 

MACT regulations under 40 CFR part 63 and/or the 

title V operating permit regulations. For information 

on when a major HAP source can obtain federally 

enforceable limits on its potential to emit, see the 

policy memorandum titled: ‘‘Potential to Emit for 

MACT Standards—Guidance on Timing Issues,’’ 

John S. Seitz, EPA, May 16, 1995. 

Federal permitting mechanism for 

minor sources in Indian country and for 

major sources in areas of Indian country 

that are designated as not attaining the 

NAAQS. These final rules will fill this 

regulatory gap. In addition, these rules 

will provide regulatory certainty to 

allow for environmentally sound 

economic growth in Indian country. 

The minor NSR rule applies to new 

and modified minor sources and to 

minor modifications at major sources. 

New minor sources with a potential to 

emit (PTE) equal to or greater than the 

minor NSR thresholds or modifications 

at minor sources with allowable 

emissions increases equal to or greater 

than the minor NSR thresholds must 

apply for and obtain a minor NSR 

permit prior to commencing 

construction of the new source or 

modification. At an existing major 

source, if a proposed modification does 

not qualify as a major modification 

(which would be subject to major NSR) 

based on the actual-to-projected-actual 

test, it is considered a minor 

modification and is subject to the minor 

NSR program requirements, if the net 

emissions increase from the actual-toprojected-actual test is equal to or 

exceeds the minor NSR thresholds listed 

in Table 1 of section IV.A.3 of this 

preamble. A major source with such a 

minor modification must apply for and 

obtain a minor NSR permit prior to 

commencing construction of the minor 

modification. In addition, these sources 

must install and operate control 

technology as determined by the 

reviewing authority on a case-by-case 

basis. At the discretion of the reviewing 

authority, such sources may also be 

required to submit air quality impact 

analyses as part of their permit 

applications. For minor sources, as an 

alternative to a site-specific permit, 

some sources can request for coverage 

under a general permit.3

This rule will also allow otherwise 

major sources in Indian country to 

voluntarily accept emission limitations 

on their PTE to become ‘‘synthetic 

minor sources.’’ Synthetic minor 

sources may include sources that emit 

regulated NSR pollutants and/or 

hazardous air pollutants (HAPs) 4 and 

any limitations on PTE must be 

enforceable as a practical matter (that is, 

both legally and practicably enforceable) 

as defined in this regulation under 40 

CFR 49.152(d). The practice of creating 

synthetic minor sources to avoid major 

NSR and title V is common under most 

state and local minor NSR permitting 

programs. However, outside of Idaho, 

Oregon and Washington, no such minor 

source permitting mechanism has been 

available in Federal regulations for 

Indian country, which discouraged 

sources that could qualify as synthetic 

minors from locating in areas of Indian 

country outside these three states. We 

therefore believe that inclusion of this 

provision in the final rules will 

significantly benefit Tribes by 

encouraging larger sources that can 

qualify as synthetic minors to locate in 

Indian country, thereby promoting 

environmentally sound economic 

growth. 

Synthetic minor sources will undergo 

site-specific permitting; that is, general 

permits will not be issued to synthetic 

minor sources. However, we intend to 

develop general permits for some 

common types of emissions units and 

minor sources to streamline the 

permitting process. The initial 

establishment of the general permit will 

include control technology review and 

associated emission limits. Thus, 

sources will not be required to conduct 

a case-by-case control technology 

review when they apply for coverage 

under a general permit. 

Under the nonattainment major NSR 

rule, affected sources are required to 

comply with the provisions of 40 CFR 

part 51, Appendix S, a transitional rule 

which generally applies to areas that do 

not have an approved nonattainment 

major NSR program for a particular 

pollutant in their State Implementation 

Plan (SIP). Sources subject to this rule 

must meet requirements for Lowest 

Achievable Emission Rate (LAER) 

control technology, emissions offsets 

and compliance certification. 

We are adopting these final rules after 

further evaluation of the proposed 

provisions and consideration of the 

public comments. On August 21, 2006 

(71 FR 48696), EPA proposed the 

‘‘Review of New Sources and 

Modifications in Indian Country’’ (i.e., 

Tribal NSR rules). EPA also held an 

extensive outreach and consultation 

period (described in section III.D of this 

preamble), along with an extensive 

public comment period that ended on 

March 20, 2007. The comments 

provided detailed information specific 

to Indian country and the final rules 

incorporate many of the suggestions we 

received. We respond to many of these 

comments in explaining our rationale 

for the final rules, which is described in 

sections IV through VII. 

The final rules adopt many elements 

of the proposal, but differ from the 

proposal in several important respects. 

For the minor NSR rule, we had 

proposed a 30-day public comment 

period for the initial establishment of 

the general permit and also proposed 

that coverage of individual sources 

under general permits would not 

undergo a public comment period. In 

the final rule, to address concerns from 

Tribes, we have slightly changed the 

proposed notification provisions. A 

source that wants to request coverage 

under the general permit will be 

required to submit such request to the 

reviewing authority. At the same time, 

the source owner must also submit a 

copy of this request to the Tribe in the 

area where the source is locating. We 

will also post notice of the coverage 

request under a general permit on our 

Web site. During our review of your 

request for coverage under the general 

permit, commenters can only notify us 

of any concerns about the eligibility of 

your source to obtain coverage under 

that general permit and not on any other 

issue. For the minor NSR rule, we had 

also proposed Plantwide Applicability 

Limitations (PALs) and project netting. 

A minor source PAL would have been 

a source-wide limitation on allowable 

emissions of a regulated NSR pollutant 

expressed in tons per year (tpy) that was 

enforceable as a practical matter. 

However, we are not finalizing minor 

source PALs after consideration of the 

comments we received. At this time, we 

are also not finalizing project netting, 

the calculation of the total emissions 

increase that would result from a 

proposed modification by summing 

both the increases and decreases 

resulting from the modification, since 

we decided not to take final action on 

project netting for the major NSR 

program. (See Prevention of Significant 

Deterioration (PSD) and Nonattainment 

New Source Review (NSR): Aggregation 

and Project Netting; 74 FR 2376.) 

Regarding the proposed list of 

emissions units and activities that will 

be exempted from the minor NSR 

program, we are finalizing an amended 

list. This list takes into consideration 

the comments received and the recent 

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Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 38751 

5Under the CAA, emissions reductions (offsets) 

from existing sources in the area of the proposed 

source (whether or not under the same ownership) 

are obtained such that there will be reasonable 

progress towards attainment of the applicable 

NAAQS. See section 173(a)(1) of the Act. 

6Also under the CAA, a permit applicant must 

certify that all existing major sources owned or 

operated by the applicant (or any entity controlling, 

controlled by or under common control with the 

applicant) in the same state as the proposed source 

are in compliance with (or under a federallyenforceable compliance schedule for) all applicable 

emission limitations and standards under the Act. 

See section 173(a)(3) of the Act. 

7Sources listed in section 169(l) of the Act are 

subject to a threshold of 100 tpy (see 40 CFR 

52.21(b)(1)(i)(a)). All other sources are subject to a 

250 tpy threshold. (See 40 CFR 52.21(b)(1)(i)(b).) In 

addition, under the recently finalized ‘‘Greenhouse 

Gas Tailoring Rule,’’ greenhouse gases will be 

phased into the PSD program with higher 

applicability thresholds (75 FR 31514). 

8 In approximate terms, ‘‘contemporaneous’’ 

emissions increases or decreases are those that have 

occurred between the date 5 years immediately 

preceding the proposed physical or operational 

change and the date that the increase from the 

change occurs. See 40 CFR 52.21(b)(3)(ii) for PSD. 

For nonattainment major NSR, see, 40 CFR part 51, 

Appendix S, paragraph II.A.6(ii). 

developments in greenhouse gas 

regulations. We are also committing to 

the development of a supplemental rule 

to determine if additional exempted 

units/activities should be added to the 

list. 

Furthermore, to address commenters’ 

concerns about EPA’s ability to issue 

minor NSR permits on a timely basis, 

we have decided to phase in the 

implementation dates of these rules. For 

example, we are delaying the 

implementation date of this rule for new 

and modified true minor sources by the 

earlier of 6 months after the general 

permit for a source category is 

published in the Federal Register or 36 

months from the effective date of this 

rule, that is, September 2, 2014. Existing 

true minor sources will not be subject to 

the requirements of the minor NSR 

program until they propose a 

modification. However, true minor 

sources will be required to register 

within 18 months from the effective 

date of this rule, that is, by March 1, 

2013, or within 90 days after the source 

begins operation, whichever is later (see 

section VII.C of this preamble for more 

details on these provisions). 

For the major NSR rule, we are not 

finalizing the proposed Appendix S, 

paragraph VI as an option for offset 5

waivers due to certain comments raising 

concerns with implementation of this 

waiver. Relative to the compliance 

certification requirement,6 we are 

finalizing a state-wide compliance 

requirement consistent with section 

173(a)(3) of the Act. 

We are finalizing the minor NSR and 

the nonattainment major NSR permit 

programs pursuant to section 

110(a)(2)(C), part D of title I and section 

301(d) of the Act. 

III. Background 

A. What is the New Source Review 

(NSR) program? 

1. What are the general requirements of 

the major NSR program? 

The major NSR program contained in 

parts C and D of title I of the Act is a 

preconstruction review and permitting 

program applicable to new major 

sources and major modifications at such 

sources. In areas not meeting healthbased NAAQS and in ozone transport 

regions (OTR), the program is 

implemented under the requirements of 

part D of title I of the Act. We call this 

program the ‘‘nonattainment’’ major 

NSR program. In areas meeting the 

NAAQS (‘‘attainment’’ areas) or for 

which there is insufficient information 

to determine whether they meet the 

NAAQS (‘‘unclassifiable’’ areas), the 

NSR requirements under part C of title 

I of the Act apply. We call this program 

the Prevention of Significant 

Deterioration (PSD) program. 

Collectively, we also commonly refer to 

these programs as the major NSR 

program. These rules are contained in 

title 40 of the Code of Federal 

Regulations (CFR), §§ 51.165, 51.166, 

52.21 and 52.24 (40 CFR 51.165, 51.166, 

52.21 and 52.24) and 40 CFR part 51, 

Appendices S and W. 

For newly constructed, ‘‘greenfield’’ 

sources, the determination of whether a 

source is subject to the major NSR 

program is based on the source’s PTE. 

The Act, as implemented by our rules, 

sets applicability thresholds for major 

sources in both attainment and 

nonattainment areas. For nonattainment 

areas, these thresholds are 100 tpy of 

any pollutant subject to regulation 

under the Act or smaller amounts, 

depending on the nonattainment 

classification. For attainment areas the 

thresholds are 100 or 250 tpy, 

depending on the source type.7 A new 

source with a PTE at or above the 

applicable threshold amount ‘‘triggers,’’ 

or is subject to, major NSR. 

For existing major sources, major NSR 

applies to a major modification. For a 

modification to be major, the following 

three criteria have to be met: 

(1) A physical change in or change in 

the method of operation of a major 

source must occur; 

(2) The increase in emissions 

resulting from this change must be 

significant (equal to or above the 

significance levels defined in 40 CFR 

52.21(b)(23) for PSD or 40 CFR part 51, 

Appendix S, paragraph II.A.10 for 

nonattainment major NSR); and 

(3) The increase in emissions 

resulting from the change must result in 

a significant net emissions increase. In 

other words, when the increase from the 

project is added to other 

contemporaneous increases and 

decreases in actual emissions 8 at the 

source, the net emissions increase must 

be significant (equal to or above the 

significance levels defined in 40 CFR 

52.21(b)(23) for PSD or 40 CFR part 51, 

Appendix S, paragraph II.A.10 for 

nonattainment major NSR). 

Major sources and major 

modifications subject to nonattainment 

major NSR must apply state-of-the-art 

emissions control technologies, 

including any pollution prevention 

measures, to achieve the lowest 

achievable emission rate. The lowest 

achievable emission rate is based on the 

most stringent emission limitation in 

the implementation plan of any state or 

achieved in practice, for the source 

category under review. 

Each major source subject to 

nonattainment major NSR must also 

offset its emissions increase by 

obtaining emissions reductions from 

other sources in the area or in an area 

of equal or higher nonattainment 

classification that contributes to 

nonattainment in the proposed major 

source’s area. The ratio of the offset 

relative to the proposed increase must 

be at least one-to-one and is based on 

the severity of the area’s nonattainment 

classification. For ozone and particulate 

matter less than or equal to 10 microns 

in aerodynamic diameter (PM10), the 

more polluted the air is where the 

source is locating or expanding, the 

greater the required offset ratio is. The 

emissions reductions to be used as 

offsets must be surplus (not otherwise 

required by the Act), quantifiable, 

Federally enforceable and permanent. 

See sections 173(a) and (c) of the Act 

and 40 CFR 51.165(a)(3). 

Additionally, each nonattainment 

major NSR permit applicant must also 

conduct an analysis of alternative sites, 

sizes, production processes and 

environmental control techniques 

demonstrating that the benefits of the 

proposed emissions source significantly 

outweigh the environmental and social 

costs of its location, construction or 

modification. Moreover, each 

nonattainment major NSR permit 

applicant must demonstrate that all 

other major sources under her/his 

control in the same state are in 

compliance or on a schedule of 

compliance with all emission 

limitations and standards of the Act. 

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38752 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

9We believe that in the context of programs 

under the Act, states generally lack the authority to 

regulate air quality in Indian country as defined in 

18 U.S.C. 1151. See Alaska v. Native Village of 

Venetie Tribal Government, 522 U.S. 520, 527 fn. 

1 (1998) (‘‘Generally speaking, primary jurisdiction 

over land that is Indian country rests with the 

Federal Government and the Indian tribe inhabiting 

it and not with the States.’’), California v. Cabazon 

Band of Mission Indians, 480 U.S. 202 (1987) and 

HRI v. EPA, 198 F.3d 1224 (10th Cir. 2000); see also 

discussion in EPA’s final rule for the federal 

operating permits program (64 FR 8251–8255, 

February 19, 1999). To provide additional certainty 

to regulated entities, we believe it is helpful to 

clarify the extent to which state NSR programs have 

force in Indian country. We interpret past approvals 

and delegations of NSR programs as not extending 

to Indian country unless the state has made an 

explicit demonstration of jurisdiction over Indian 

country and we have explicitly approved or 

delegated the state’s program for such area. This is 

consistent with Congress’ requirement that we 

approve state and tribal programs only where there 

is a demonstration of adequate authority. See 

sections 110(a)(2)(E), 110(o) and 301(d) of the Act 

and 40 CFR part 49. Since states generally lack the 

authority to regulate air resources in Indian 

country, we do not believe it would be appropriate 

for us to approve state programs under the Act as 

covering Indian country where there has not been 

an explicit demonstration of adequate jurisdiction 

and where we have not explicitly indicated our 

intent to approve the state program for an area of 

Indian country. In state NSR program approvals and 

delegations, we generally were not faced with state 

assertions of authority to regulate sources in Indian 

country. However, to the extent states or others may 

have interpreted our past approvals or delegations 

that were not based on explicit demonstrations of 

adequate authority and did not explicitly grant 

approval in Indian country as approvals to operate 

NSR programs in Indian country, we wish to clarify 

any such misunderstanding. 

Under the PSD program for 

attainment areas, a major source or 

modification must apply Best Available 

Control Technology (BACT), which may 

be based on pollution prevention 

techniques. In addition, the source must 

analyze the impact of the project on 

ambient air quality to assure that no 

violation of the NAAQS or PSD 

increments will result and must analyze 

impacts on soil, vegetation and 

visibility. Sources or modifications that 

would impact Class I areas (e.g., 

national parks) may be subject to 

additional requirements to protect air 

quality related values (AQRVs) that 

have been identified for such areas. 

2. What are the general requirements of 

the minor NSR program? 

Section 110(a)(2)(C) of the Act 

requires that every SIP include a 

program to regulate the construction 

and modification of stationary sources, 

including a permit program as required 

by parts C and D of title I of the Act, 

to ensure attainment and maintenance 

of the NAAQS. Parts C and D address 

the major NSR program for major 

sources and the permitting program for 

minor sources is addressed by section 

110(a)(2)(C) of the Act. We commonly 

refer to the latter program as the minor 

NSR program. A minor source means a 

source whose PTE is lower than the 

major NSR applicability threshold for a 

particular pollutant as defined in the 

applicable nonattainment major NSR 

program or PSD program. 

States must develop minor NSR 

programs to attain and maintain the 

NAAQS and the Federal requirements 

for state minor NSR programs are 

outlined in 40 CFR 51.160 through 

51.164. These Federal requirements for 

minor NSR programs are considerably 

less prescribed than those for major 

sources and as a result there is a larger 

variation of requirements in the state 

minor NSR programs. 

Furthermore, Section 110(a)(2)(C) of 

the Act provides us with a broad degree 

of discretion in developing a program to 

regulate new and modified minor source 

construction activities in Indian 

country. 

B. What is the basis for EPA’s authority 

to implement CAA programs in Indian 

country? 

The Tribal Authority Rule (TAR) 

authorizes eligible Indian Tribes to 

implement EPA-approved 

nonattainment major NSR (part D of title 

I of the Act), PSD (part C of title I of the 

Act) and other programs under the Act 

in the same manner as states. This is 

accomplished when Indian Tribes 

develop Tribal Implementation Plans 

(TIPs), which are plans similar to SIPs. 

If a Tribe develops a TIP to implement 

a CAA program, the TIP, once it is 

approved, will replace the Federal 

program as the requirement for that area 

of Indian country and the Tribe will 

become responsible for implementing 

that particular program. However, if 

Indian Tribes are unable or choose not 

to include a CAA program such as NSR 

in a TIP, we will implement the 

program under these rules. 

The Act provides us with broad 

authority to protect air resources 

throughout the Nation, including air 

resources in Indian country. See, for 

example, the preamble discussion for 

the proposed and final TAR (59 FR 

43956, 43958–61, August 25, 1994; 63 

FR 7254, 7262–64, February 12, 1998) 

and the preamble discussion for the 

proposed revisions to the part 71 

Federal operating permits program for 

Indian country (62 FR 13748, 13750, 

March 21, 1997). In the preambles to the 

proposed and final TAR, we discussed 

generally the legal basis under the Act 

for EPA and Tribal regulation of sources 

of air pollution in Indian country. We 

concluded that the Act constitutes a 

statutory delegation of Federal authority 

to eligible Tribes over all sources of air 

pollution within the exterior boundaries 

of their reservations. 

Further, under the Act, Tribes may 

also apply to administer Tribal air 

quality programs for non-reservation 

areas over which they can show 

jurisdiction.9 See 63 FR 7254–7259; 59 

FR 43958–43960; Arizona Public 

Service Co. v. EPA, 211 F.3d 1280 (DC 

Cir. 2000), cert. den., 532 U.S. 970 

(2001). 

In the preamble to the TAR, we also 

concluded that the Act authorizes us to 

protect air quality throughout Indian 

country. See 63 FR 7262, 59 FR 43960– 

43961 citing sections 101(b)(1), 301(a) 

and 301(d) of the Act. 

In addition, section 301(a) of the Act 

provides us broad authority to issue 

such regulations as are necessary to 

carry out the mandates of the Act. 

Several provisions of the Act call for 

Federal implementation of a program 

where, for example, a state or in this 

case a Tribe, fails to adopt a program or 

adopts an inadequate program. See, for 

example, sections 110(c)(1), 502(d)(3) 

and 502(i)(4) of the Act. These 

provisions exist in part to ensure that 

the benefits of the Act are realized 

throughout the United States, whether 

or not local governments choose to 

participate in implementing the Act. 

Especially in light of the problems 

associated with transport of air 

pollution across state and Tribal 

boundaries, it follows that Congress 

intended that we have the authority to 

operate a Federal program in the 

absence of an adequately implemented 

EPA-approved program. See, for 

example, 59 FR 43958–61, August 25, 

1994; 62 FR 13750, March 21, 1997 and 

63 FR 7262–64, February 12, 1998. 

This interpretation is most evident 

from Congress’ grant of authority to the 

EPA under section 301(d)(4) of the Act. 

Section 301(d)(4) authorizes the 

Administrator to directly administer 

provisions of the Act so as to achieve 

the appropriate purpose where Tribal 

implementation of those provisions is 

inappropriate or administratively 

infeasible. We determined that it is 

inappropriate to subject Tribes, among 

other things, to the mandatory submittal 

deadlines and to the related Federal 

oversight mechanisms in section 

110(c)(1) of the Act, which are triggered 

when we make a finding that states have 

failed to meet required deadlines or 

disapprove a state plan submittal. See 

40 CFR 49.4(d). 

By determining that Tribes should not 

be treated similarly to states for 

purposes of the specific FIP obligation 

under section 110(c)(1) of the Act, we 

are not relieved of the general obligation 

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10For example, the St. Regis Mohawk Tribe has 

in place an EPA-approved TIP that includes 

provisions for minor NSR and synthetic minor 

permitting (See http://www.srmtenv.org/pdf_files/ 

airtip.pdf). In addition, the Gila River Indian 

Community has developed a TIP that includes a 

minor NSR program (See http://www.epa.gov/ 

region9/air/actions/gila-river.html). 

11Although many states have developed 

regulatory programs for minor sources, those 

programs do not apply in Indian country unless 

explicitly approved by EPA for such areas. 

under the Act to ensure the protection 

of air quality throughout the Nation, 

including throughout Indian country. 

Rather, consistent with the provisions of 

sections 301(a) and 301(d)(4) of the Act, 

we expressed our intent to promulgate 

without unreasonable delay such FIP 

provisions as are necessary or 

appropriate to protect air quality if 

Tribal efforts do not result in adoption 

and approval of Tribal plans or 

programs. See 63 FR 7265, 40 CFR 

49.11. 

Under section 301(d)(4) of the Act, 

Congress authorized the EPA to 

maintain the territorial approach by 

implementing the Act in Indian country 

in the absence of an EPA-approved 

program. We believe that Congress 

authorized us, consistent with our 

Indian policy, to avoid the checkerboarding of Indian reservations based on 

land ownership by Federally 

implementing the Act over all 

reservation sources in the absence of an 

EPA-approved Tribal program. See S. 

Rep. No. 228, 101st Cong., 1st Sess. 79 

(1989) (implementation of the Act to be 

in a manner consistent with EPA’s 

Indian policy). In addition, section 

301(d)(4) authorized us to implement 

the Act in non-reservation areas of 

Indian country in order to fill any gap 

in program coverage and to ensure an 

efficient and effective transition to EPAapproved programs. 

Our interpretation of section 301(d) of 

the Act as authorizing our 

implementation throughout Indian 

country is also supported by the 

legislative history. See S. Rep. No. 228, 

101st Cong., 1st Sess. 80 (1989) (noting 

that section 301(d) of the Act authorizes 

the EPA to implement provisions of the 

Act throughout ‘‘Indian country’’ when 

there is no approved Tribal program); 

Id. at 80 (noting that criminal sanctions 

are to be levied by the EPA, ‘‘consistent 

with the Federal government’s general 

authority in Indian country’’); Id. at 79 

(the purpose of section 301(d) of the Act 

is to ‘‘improve the environmental 

quality of the air within Indian country 

in a manner consistent with the EPA 

Indian Policy’’). 

Therefore, with these final rules, we 

will exercise our authority to administer 

the minor NSR permitting program and 

the nonattainment major NSR program 

in Indian country, which is generally 

the area over which a Tribe may 

potentially receive approval of programs 

under the Act. As noted in the final 

TAR, we interpret the Act as 

establishing a territorial approach to 

implementation of the Act within 

Indian country by delegating to eligible 

Tribes authority over all reservation 

sources without differentiating among 

the various categories of on-reservation 

lands (63 FR 7254–7258). In addition, 

the Act authorizes eligible Tribes to 

implement Tribal programs under the 

Act in non-reservation areas over which 

a Tribe has jurisdiction, generally 

including all areas of Indian country (63 

FR 7258–7259). 

In order to further our commitment to 

use our authority under the Act to 

protect air quality throughout Indian 

country by directly implementing the 

Act’s requirements, we are now 

exercising the rulemaking authority 

entrusted to us by Congress to directly 

implement the minor NSR permitting 

program and nonattainment major NSR 

permitting program throughout all areas 

of Indian country. See generally, 

Chevron USA, Inc. v. NRDC, 467 U.S. 

837, 842–45 (1984). 

C. What is the status of the NSR air 

quality programs in Indian country? 

No Tribe is currently administering an 

EPA-approved PSD program. Therefore, 

EPA has been implementing a FIP for 

major sources in attainment areas and 

has been issuing PSD permits in Indian 

country. See 40 CFR 52.21. For the 

nonattainment major NSR program or 

the minor NSR program in Indian 

country, no Tribes have been 

administering an EPA-approved 

nonattainment major NSR program and 

only a few Tribes have been 

administering EPA-approved minor 

NSR programs.10 In addition, there has 

been no FIP in place to implement these 

programs until now. Hence, there was a 

regulatory gap in Indian country. This 

final rule will allow us to address that 

gap and more fully implement the NSR 

program in Indian country. We are 

finalizing the minor NSR program at 40 

CFR 49.151 through 49.165 and the 

nonattainment major NSR program at 40 

CFR 49.166 through 49.175 and these 

programs will continue to apply except 

where we explicitly approve an 

implementation plan for such programs 

for a specific area in Indian country.11

The requirements finalized under these 

rules do not apply to State permitting 

programs. 

As we stated previously, sections 

301(d) and 110(o) of the Act give the 

Tribes the authority to develop their 

own Tribal programs and we encourage 

eligible Tribes to develop their own 

minor and nonattainment major NSR 

programs for incorporation into TIPs. 

However, we understand that not all 

Tribes have the resources to design and 

implement NSR programs; therefore, in 

the absence of an EPA-approved 

program, this final rulemaking provides 

a Federal program for implementing the 

minor NSR and the major NSR program 

in nonattainment areas of Indian 

country. Tribes may use this program as 

a model if they choose to develop their 

own Tribal Implementation plans and 

obtain our approval. 

Since, in most cases and in the 

absence of an EPA-approved program, it 

would be neither practical nor 

administratively feasible for us to 

develop and implement a separate 

program for each area of Indian 

country,; these final rules will 

implement a flexible FIP for Indian 

country that provides new and modified 

minor sources and major sources in 

nonattainment areas with procedures to 

demonstrate that they will be operating 

in a manner that is protective of air 

resources and the NAAQS. In addition, 

these rules will ensure that any 

economic growth occurring in Indian 

country will be in harmony with the 

preservation of Clean Air Act resources. 

D. What consultation and outreach has 

been done with Tribal leaders and 

representatives? 

Prior to undertaking this rulemaking, 

we sought to include Tribes early in the 

rulemaking process. On June 24, 2002, 

we sent approximately 500 letters to 

Tribal leaders seeking their 

recommendations for effective 

consultation and their involvement in 

developing these rules. 

We received responses from 75 

Tribes. Of these 75 Tribes, 69 designated 

an environmental staff member to work 

with us on developing the rules. Aside 

from the designated staff, many Tribal 

leaders asked that we keep them 

informed of our progress through e-mail, 

meetings with the EPA Regional Offices, 

newsletters and Web sites. In addition, 

53 percent of the Tribal leaders also 

requested direct phone calls or 

conference calls to discuss the subject 

and 16 percent of the respondents 

requested face-to-face consultation. Of 

these, six Tribes requested senior EPA 

staff to meet with Tribal leaders. 

As a result of this feedback, we 

developed a consultation plan that 

included three meetings held at the 

reservations of the Menominee Tribe in 

Wisconsin, the Mohegan Tribe in 

Connecticut and the Chehalis Tribe in 

Washington. A fourth meeting was held 

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12This organization has since changed its name 

to the National Association of Clean Air Agencies 

(NACAA). 

in conjunction with the Institute of 

Tribal Environmental Professionals’ 

(ITEP) 10th anniversary meeting in 

Flagstaff, Arizona. In addition to 

conducting these meetings, we also 

visited Tribal environmental staff in 

Indian country. Over 30 Tribes attended 

these meetings. We also participated in 

numerous national and regional forums 

including the National Tribal Forums 

sponsored by the ITEP, two National 

Tribal Air Association meetings and 

meetings with Tribal consortia, such as 

the National Tribal Environmental 

Council, United Southern and Eastern 

Tribes, Inter-Tribal Environmental 

Council, Inter Tribal Council of Arizona 

and others. 

Although much of our effort focused 

on outreach to the Tribes, we also 

interacted with state and local air 

pollution control agencies during 

development of these rules. We had two 

meetings with the State and Territorial 

Air Pollution Program Administrators 

and the Association of Local Air 

Pollution Control Officers (STAPPA/ 

ALAPCO) to present the draft rules.12

We considered feedback from all 

stakeholders and proposed the ‘‘Review 

of New Sources and Modifications in 

Indian Country’’ rules on August 21, 

2006 (71 FR 48696). However, Tribal 

government representatives expressed 

concerns that the long gap between 

consultation/outreach and action by the 

Agency undermined the effectiveness of 

these interactions. Thus, after proposal 

of the rule, we started an extensive 

outreach program in the years 2006 and 

2007 to inform and seek comments from 

the public, especially Tribes. 

We again sent over 500 letters to 

Tribal leaders to inform them about the 

proposal. We did not receive any formal 

responses to these letters and did not 

receive any request for formal 

consultation from the Tribes, but they 

contacted us either through e-mail or 

phone calls and asked to keep them 

informed of our progress through e-mail, 

meetings, training sessions, newsletters 

and/or Web sites. To enhance 

understanding of the proposal and what 

it would mean for Indian country, we 

supplemented the 2006 outreach efforts 

by holding four training sessions using 

Web conferencing not only for Tribes, 

but also for EPA Regional Offices, air 

program managers and Tribal 

organizations. We also held training 

sessions in 2006 and at the request of 

the Tribes for interested Tribal and 

other environmental professionals at the 

Pechanga Band of Luisen ̃o Indians in 

California and Salt River Pima-Maricopa 

Indian Community in Arizona. In 

addition, we held training sessions for 

all interested parties at EPA Region V’s 

Tribal Air Meeting in Illinois (2006) and 

EPA’s Region X’s office in Washington 

(2007). 

We participated in numerous national 

and regional forums including the 

forums sponsored by the Institute of 

Tribal Environmental Professionals, the 

National Tribal Air Association and at 

meetings with Tribal consortia, such as 

the United Southern and Eastern Tribes. 

We also interacted with state and local 

air pollution agencies during this 

outreach period and had meetings with 

the NACAA. 

Furthermore, we extended and 

reopened the comment period for the 

proposed rules twice (from November 

20, 2006 to January 19, 2007 and from 

January 19, 2007 to March 20, 2007) at 

the request of the Tribes. During this 

time, we also recorded and presented a 

webcast video for all interested 

stakeholders to train more 

environmental professionals about the 

NSR program and the rules themselves. 

To address the concern about the long 

gap between the proposal and 

finalization of the rules and to ensure 

that the Tribes are aware of the 

proposed rules and their provisions, we 

held a series of meetings in 2010 with 

the National Tribal Operations 

Committee, interested Regional Tribal 

Operations Committees and interested 

Tribal environmental staff. In 2011, we 

sent letters to all Tribes to ask them 

about their interest in an additional 

round of consultation and outreach and, 

based on their responses, we have 

conducted consultation and outreach 

meetings with several Tribes. These 

meetings included a face-to-face 

meeting in Denver, Colorado with a 

number of Tribes within EPA Region 

VIII and four conference calls with 

Tribes from across the country. 

After these rules are promulgated, we 

intend to conduct similar outreach 

efforts with all stakeholders, including 

extensive training to facilitate easier 

implementation of the rules. 

IV. Final Minor NSR Program for 

Indian Country 

This rulemaking finalizes provisions 

for a minor NSR program in Indian 

country, codified at 40 CFR 49.151 

through 49.165. The program includes 

requirements for preconstruction review 

for minor sources and minor 

modifications, general permits and 

synthetic minor source permits. The 

minor NSR program also serves as a 

mechanism for case-by-case MACT 

determinations and establishes a 

registration system for existing minor 

sources to improve the Tribal source 

emission inventory. 

Our primary goal in developing this 

program is to ensure that air resources 

in Indian country will be protected in 

the manner intended by the Act. In 

addition, we seek to establish a flexible 

preconstruction permitting program for 

minor sources in Indian country that is 

comparable to similar programs in 

neighboring states in order to create a 

more level regulatory playing field for 

owners and operators within and 

outside of Indian country. 

This final rulemaking is not intended 

to establish a new set of minimum 

criteria that a Tribe or a state would 

need to follow in developing its own 

minor source permitting program. 

Rather, these rules simply represent 

how we will implement the program in 

Indian country in the absence of an 

EPA-approved Tribal implementation 

plan. However, if a Tribe is developing 

its own program, this can serve as one 

example of a program that meets the 

objectives and requirements of the Act. 

This final minor source permitting 

program addresses, on a national level, 

many environmental and regulatory 

issues that are specific to Indian 

country. We understand that different 

Tribes may face different issues and 

may therefore, like states developing 

SIPs, choose to develop TIPs tailored to 

their individual Tribal circumstances 

and needs. This rule will allow Tribes 

to develop their own TIPs, consistent 

with the overarching requirement that 

the Tribe ensure that the TIP will not 

interfere with any applicable 

requirement of the CAA. 

A. General Provisions Under the Minor 

NSR Program 

1. What is a minor source and which 

minor sources are subject to this rule? 

a. Minor Source Definition 

We are finalizing under 40 CFR 

49.152 that a minor source, for the 

purposes of this rule, means a source, 

not including the exempt emissions 

units and activities listed in § 49.153(c), 

that has the potential to emit regulated 

NSR pollutants in amounts that are less 

than the major source thresholds in 

40 CFR § 49.167 or § 52.21, as 

applicable, but equal to or greater than 

the minor NSR thresholds in § 49.153. 

The potential to emit includes fugitive 

emissions, to the extent that they are 

quantifiable, only if the source belongs 

to one of the source categories listed in 

40 CFR part 51, Appendix S, paragraph 

II.A.4(iii) or 52.21(b)(1)(iii), as 

applicable. 

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13The significance levels are defined in 40 CFR 

52.21(b)(23). 

A source’s PTE for a pollutant is 

expressed in tpy and generally is 

calculated by multiplying the maximum 

hourly emissions rate in pounds per 

hour (lbs/hr) times 8,760 hours (which 

is the number of hours in a year) and 

dividing by 2,000 (which is the number 

of pounds in a ton). If a source is 

restricted by permit conditions that 

limit its emissions and are enforceable 

as a practical matter (as defined in 

40 CFR 49.152), its PTE (and allowable 

emissions) are calculated based on the 

permit restrictions. 

For the NSR program in Indian 

country, the major source thresholds are 

defined in the PSD program (see 40 CFR 

52.21) and in the nonattainment major 

NSR program being finalized in this 

action (see 40 CFR 49.167), as 

applicable. These thresholds may differ 

in attainment areas and nonattainment 

areas for the same pollutant. For 

example, in attainment areas the major 

source threshold for nitrogen oxides 

(NOX) is 250 tpy, unless the source 

belongs to a source category that is 

listed in the major NSR rules (see 40 

CFR 52.21(b)(1)(i)(a)), in which case the 

major source threshold is 100 tpy. In 

contrast, the major source threshold for 

NOX in ozone nonattainment areas can 

vary from 10 tpy in an extreme ozone 

nonattainment area to 100 tpy in a 

marginal ozone nonattainment area (see 

40 CFR part 51, Appendix S, paragraph 

II.A.4(i)). The final rule establishes 

minor NSR thresholds as discussed in 

section IV.A.3 of this preamble. 

This minor source definition differs 

from the definition in the proposal by 

providing the following clarifications. 

We clarified that de minimis exceptions 

(i.e., minor NSR thresholds) and 

insignificant source categories or 

activities being finalized under this rule 

are not considered minor sources for 

purposes of this rule and eliminated the 

sentence in the proposed definition that 

stated the term ‘‘minor stationary source 

applies independently to each regulated 

NSR pollutant that the source has the 

potential to emit.’’ 

A few commenters asked us to 

accommodate in the minor source 

definition references to the de minimis 

exceptions (i.e., minor NSR thresholds) 

and insignificant source categories or 

activities being finalized under this rule 

and we believe it is appropriate to do so. 

In addition, since the source can only be 

a minor source if the PTE of all 

regulated NSR pollutants for that source 

are less than the corresponding major 

source thresholds, we deleted from the 

definition the statement that read: ‘‘the 

term ‘minor stationary source’ applies 

independently to each regulated NSR 

pollutant that the source has the 

potential to emit.’’ 

Furthermore, we have amended the 

minor source definition to specify that 

the PTE of a source includes fugitive 

emissions, to the extent that they are 

quantifiable, only if the source belongs 

to one of the source categories listed in 

40 CFR 52.21(b)(1)(iii) (for PSD) and 40 

CFR part 51, Appendix S, paragraph 

II.A.4(iii) (for nonattainment major NSR) 

of the major NSR rules pursuant to 

section 302(j) of the Act. This action is 

explained further in the next section. 

b. Determining Applicability for New 

Minor Sources 

As stated in the proposal, in all NSR 

applicability determinations, you must 

evaluate each regulated NSR pollutant 

individually because the area where 

your source is located may be 

attainment for some pollutants and 

nonattainment for others. For a given 

new source or modification, a particular 

pollutant may be subject to review 

under PSD, nonattainment major NSR or 

minor NSR or may not be subject to any 

of these programs. 

For proposed new sources, the first 

step is to calculate the potential to emit 

of each regulated NSR pollutant. The 

second step is to determine whether the 

source is subject to the applicable major 

NSR program (i.e., 40 CFR 49.167 or 40 

CFR 52.21 for nonattainment and 

attainment areas, respectively) with 

respect to each regulated NSR pollutant. 

Under the nonattainment major NSR 

program, this step is repeated for each 

regulated NSR pollutant the source has 

the potential to emit. Under the PSD 

program, if the source’s potential to emit 

is greater than the major source 

threshold for one pollutant, then PSD 

applies to any other regulated NSR 

pollutants for which the potential to 

emit is above the level defined as 

‘‘significant’’ in the PSD regulations.13

The significance level is typically lower 

than the major source threshold; for 

example, the significance level for PM10

is 15 tpy while the major source 

threshold is 100 or 250 tpy. 

If your proposed new source is not 

subject to major NSR for a particular 

regulated NSR pollutant, the next step is 

to determine whether the source is 

subject to the requirements of this minor 

NSR rule for that pollutant, i.e., if the 

source’s potential to emit of the 

pollutant is equal to or greater than the 

applicable minor NSR threshold listed 

in Table 1 of this final rule. These steps 

are repeated for every regulated NSR 

pollutant the source has the potential to 

emit. However, for a source to be 

considered a minor source, the PTE of 

all regulated NSR pollutants must be 

less than the corresponding major 

source threshold. 

In determining if the source’s 

potential to emit of a pollutant is equal 

to or greater than the applicable minor 

NSR threshold listed in Table 1 of this 

final rule, fugitive emissions will be 

included to the extent that they are 

quantifiable, only if the source belongs 

to one of the source categories listed 

pursuant to section 302(j) of the Act 

(i.e., the source categories listed in 40 

CFR part 51, Appendix S, paragraph 

II.A.4(iii) and in 40 CFR 52.21(b)(1)(iii)). 

We are finalizing this provision after 

seeking comment in the proposal as to 

whether in calculating the emission 

levels for applicability purposes, you 

should include fugitive emissions, to 

the extent they are quantifiable, for all 

sources or include them only for source 

categories listed pursuant to section 

302(j) of the Act or exclude them for all 

sources. 

Commenters who supported the 

approach of including fugitive 

emissions for all sources believed that 

the mandate of the minor NSR program 

is based on protection of air quality 

throughout the nation. Additionally, 

they believed that fugitive emissions are 

a large proportion of the air pollutants 

in Indian country and therefore EPA 

must require fugitive emissions to be 

included in determining applicability. 

However, many commenters argued that 

fugitive emissions at minor sources are 

minuscule and a requirement to include 

them would be excessive. Some of these 

commenters believed that the costs for 

complying with minor NSR for fugitive 

emissions could potentially be 

substantial and that fugitive emissions 

are inherently difficult to quantify. In 

addition, one commenter added that 

fugitive emissions should only be 

included for source categories listed 

under section 302(j) of the Act, citing an 

extensive analysis of the history of 

regulating fugitive emissions under 

NSR. 

Based on the comments received, we 

are finalizing provisions that require 

including fugitive emissions in the 

minor NSR applicability determination, 

to the extent that they are quantifiable, 

only if the source belongs to one of the 

source categories listed pursuant to 

section 302(j) of the Act (i.e., the source 

categories listed in 40 CFR part 51, 

Appendix S, paragraph II.A.4(iii) and in 

40 CFR 52.21(b)(1)(iii)), for the 

following reasons. 

For the source categories listed 

pursuant to section 302(j) we have 

historically identified these source 

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38756 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

14 ‘‘For over two decades,’’ EPA has interpreted 

‘‘the RMRR exclusion as limited to de minimis 

circumstances.’’ New York v. EPA, 443 F.3d 880, 

884 (DC Cir. 2006), cert. denied 127 S. Ct.2127 

(2007) (citing Alabama Pow. Co, v. Costle, 636 F.2d 

323 (DC Cir 1980)). EPA’s historic policy is that ‘‘in 

determining whether proposed work at an existing 

facility is ‘routine,’ EPA makes a case-by-case 

determination by weighting the nature, extent, 

purpose, frequency and cost of the work, as well as 

other relevant factors, to arrive at a common-sense 

finding.’’ Memorandum from Don R. Clay, Acting 

Assistant Administrator, Office of Air and 

Radiation, U.S. EPA, ‘‘Applicability of Prevention 

of Significant Deterioration (PSD) and New Source 

Performance Standards (NSPS) Requirements to the 

Wisconsin Electric Power Company (WEPCO) Port 

Washington Life Extension Project’’ (Sep. 9, 1988) 

(http://www.epa.gov/region07/air/nsr/nsrmemos/ 

wpco2.pdf). EPA further explained these factors in 

letter dated May 23, 2000 from Francis X. Lyons, 

Regional Administrator, Region V, U.S. EPA, to 

Henry Nickel, Counsel for the Detroit Edison 

Company, Hunton & Williams (http://www.epa.gov/ 

region07/air/nsr/nsrmemos/detedisn.pdf). 

categories as having the potential to 

significantly degrade air quality and it 

has been demonstrated to be reasonable 

and cost effective for sources in these 

categories to quantify and include their 

fugitive emissions in applicability 

determinations. We will continue to 

require these source types to quantify 

fugitive emissions in determining 

applicability of minor NSR. While some 

other source categories also contribute 

significantly to air pollution, we have 

thus far not required counting their 

fugitive emissions in determining 

applicability because of unreasonable 

economic costs associated with doing so 

(See 54 FR 48879). 

We have the discretion under CAA 

section 110(a)(2)(c) to follow a similar 

approach in the minor source program 

as long as the NAAQS are protected and 

we are using that discretion because we 

believe it would be unreasonably 

cumbersome and costly to expect the 

wide variety of minor source types not 

on the section 302(j) list to be able to 

quantify their fugitive emissions. 

Without discounting the fact that 

fugitive emissions from individual 

sources or source categories may be 

significant contributors to air pollution, 

we believe that, as a whole, the air 

quality impacts of emissions from the 

number of sources that would likely be 

excluded from minor NSR because of 

exclusion of their fugitive emissions are 

likely to be small and therefore not 

commensurate with the regulatory and 

economic burden we would impose on 

minor sources in Indian country if we 

were to require the estimation of 

fugitive emissions for all minor sources 

and subject them to permitting based on 

those emissions. This is especially the 

case since we are developing a program 

that applies generically to sources in 

Indian country regardless of whether 

fugitive emissions from major or minor 

sources are a significant source of air 

pollution in a specific location. Given 

this diversity and the potential costs, 

our approach strikes a reasonable 

balance. 

Finally, this approach in our final rule 

is consistent with how fugitive 

emissions are treated in some state 

minor source programs. Therefore, we 

are finalizing the new minor source 

applicability requirements mainly as 

proposed and under 40 CFR 49.153(a). 

2. What is a modification and which 

modifications are subject to this rule? 

a. Definition of ‘‘Modification’’ 

Under this final rule, a modification 

means any physical or operational 

change that would cause an increase in 

the allowable emissions of a minor 

source or an increase in the actual 

emissions (based on the applicable test 

under the major NSR program) of a 

major source for any regulated NSR 

pollutant or that would cause the 

emission of any regulated NSR pollutant 

not previously emitted. Allowable 

emissions of a minor source include 

fugitive emissions, to the extent that 

they are quantifiable, only if the source 

belongs to one of the source categories 

listed in 40 CFR 52.21(b)(1)(iii) for PSD 

and 40 CFR part 51, Appendix S, 

paragraph II.A.4(iii) for nonattainment 

major NSR. The following exemptions 

apply: 

• A physical or operational change 

does not include routine maintenance, 

repair or replacement.14

• An increase in the hours of 

operation or in the production rate is 

not considered an operational change 

unless such change is prohibited under 

any permit condition that is enforceable 

as a practical matter (as defined in 40 

CFR 49.152). 

• A change in ownership at a 

stationary source. 

• The emissions units and activities 

listed in 40 CFR 49.153(c). 

We are finalizing this definition under 

40 CFR 49.152 after requesting 

comments as to whether the term 

modification should be based on an 

increase in allowable emissions or 

actual emissions. 

Commenters who supported our 

proposal to adopt a definition of the 

term ‘‘modification’’ based on an 

increase in allowable emissions 

(allowable-to-allowable test) believed 

that this test would be a simpler test 

than the actual-to-projected-actual test 

that applies to the major NSR program; 

it will be less costly, less time 

consuming and less complicated for 

Tribal minor sources and it is legal 

under the CAA and consistent with 

some state and local minor NSR 

programs that we have approved in SIPs 

pursuant to section 110 of the Act. On 

the other hand, commenters who 

opposed the allowable emissions test 

believed that this test is less stringent 

than the alternative tests and/or it is 

contrary to the Act and recent court 

decisions. They also believed that the 

allowable-to-allowable test will be 

inconsistent with the major NSR 

program and it does not ensure that the 

NAAQS are achieved (i.e., it could lead 

to unreviewed increases in emissions 

that would be detrimental to air 

quality). Furthermore, some of these 

commenters believed that an allowableto-allowable test will not capture those 

sources that escape major NSR review 

and suggested the use of an actualemissions-based test which could 

include an actual-to-potential, actual-toprojected-actual or an actual-to-futureactual test. 

For the most part, we agree with those 

commenters that endorsed the concept 

of defining the term modification for the 

minor NSR program as a change in 

allowable emissions. As we stated in the 

proposal (71 FR 48696), we evaluated 

the three basic types of applicability 

tests (actual-to-potential, actual-toprojected-actual and allowable-toallowable) and determined that the 

allowable-to-allowable test is the most 

suitable for Indian country because, 

apart from being a simple test, it will 

help with implementation of the 

program for the minor sources in Indian 

country that, to date, have little 

experience with air regulations. Since 

minor sources in Indian country have 

been unregulated until now, many of 

these sources have not kept track of 

actual emissions data, making the initial 

application of any test based on actual 

emissions virtually impossible. In 

addition, we understand that some state 

minor NSR programs use an allowableto-allowable test which would make this 

program for Indian country consistent 

with the programs in these states. 

In addition and as we discussed in the 

proposal preamble, we believe that we 

have the discretion to use an allowableto-allowable test for this minor NSR 

program because the statutory basis for 

minor NSR is section 110(a)(2)(C) of the 

Act. By contrast, parts C and D of title 

I of the Act provide the statutory basis 

for the major NSR program and refer to 

section 111(a)(4) of the Act (the 

definition of ‘‘modification’’ for 

purposes of the new source performance 

standards (NSPS)) in defining 

‘‘modification’’ for purposes of the 

major NSR program. The DC Circuit 

Court of Appeals has ruled that, based 

on the wording of the definition of 

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15We are requiring minor sources to register 

within 18 months from the effective date of this 

rule. See section IV.F of this preamble for more 

details about the registration program. 

16The minor NSR permit for the modification 

must include an annual allowable emissions limit 

for each affected emissions unit per final 40 CFR 

49.155(a)(2). The post-change allowable emissions 

limit can be the uncontrolled potential to emit or 

can be lower depending on the outcome of the 

reviewing authority’s control technology review as 

well as any other restrictions that you propose for 

the emissions unit (e.g., for purposes of NSR 

applicability). 

17 It is necessary to use potential to emit since 

these emissions units will not have an allowable 

emissions limit prior to the change. 

‘‘modification’’ in section 111(a)(4) of 

the Act, the applicability of major NSR 

to modifications must be based on 

changes in actual emissions (State of 

New York v. U.S. EPA, 413 F. 3d 3 (DC 

Cir. 2005). However, that reasoning 

based on the definition in section 111 of 

the Act does not apply to minor source 

permitting because the statutory basis 

for the minor NSR program is section 

110(a)(2)(C) of the Act, which does not 

define or refer to a definition of 

‘‘modification.’’ Thus, we believe that 

we have discretion in defining the term 

for the minor NSR program in Indian 

country and we do not believe that the 

decision of the DC Circuit Court of 

Appeals applies to the minor NSR 

program. 

To address the concerns of those 

commenters who expressed that the 

allowable-to-allowable test is less 

stringent than an actual-emissions-based 

test or that this test is at odds with 

section 110(a)(2)(C) of the Act, we 

commit to conducting a study to collect 

actual emissions data for a period of 5 

years from the minor source registration 

program 15 we are finalizing with this 

rule to assess the feasibility of 

implementing an actual-emissionsbased test. If our study concludes that 

adequate actual emissions data are 

available for minor sources, we will 

consider undertaking a rulemaking to 

adopt an actual-emissions-based test 

within 2 years from the end of the 

5-year study period. 

Furthermore, because of our concern 

that some minor modifications at major 

sources might escape review under the 

minor NSR program as proposed, we are 

finalizing that the applicability of the 

minor NSR program to minor 

modifications at major sources be based 

on the actual-to-projected-actual test 

used in the applicable major NSR 

program. Thus, in the final rule, if a 

proposed modification at an existing 

major source does not qualify as a major 

modification (which would be subject to 

major NSR) based on the actual-toprojected-actual test, it is considered a 

minor modification and is subject to the 

minor NSR program if the net emissions 

increase from the actual-to-projectedactual test is equal to or exceeds the 

minor NSR thresholds listed in Table 1 

in section IV.A.3 of this preamble. The 

rationale for using an allowable-toallowable test for modifications at minor 

sources in Indian country—that actual 

emissions data are not available for 

minor sources and an actual-emissionsbased test would be beyond the 

capabilities of many minor sources— 

does not apply to modifications at major 

sources. We believe this approach will 

be simpler and more efficient than an 

approach requiring the use of a second, 

allowable-to-allowable test for the minor 

NSR program. Hence, we are revising 

the definition of modification under 40 

CFR 49.152 accordingly. 

We are also making a change to the 

definition of modification related to the 

treatment of fugitive emissions. Now 

this definition includes provisions to 

account for fugitive emissions, to the 

extent they are quantifiable, only if the 

source belongs to one of the source 

categories listed pursuant to section 

302(j) of the Act (see previous section 

for details on why we are including 

fugitive emissions in the minor NSR 

applicability determinations). 

b. Determining Applicability for 

Modifications 

To determine if your proposed 

physical or operational change is subject 

to the minor NSR program (see final 

49.153(a)(1)(ii) and 49.153(b)), you must 

first determine whether the change is 

subject to the applicable major NSR 

program (i.e., 40 CFR part 51, Appendix 

S or 40 CFR 52.21 for nonattainment 

and attainment areas, respectively). For 

physical or operational changes at your 

existing major source, you would 

determine whether the modification 

qualifies as a major modification using 

the procedures in the applicable major 

NSR program (i.e., the actual-toprojected-actual applicability test). In 

addition and as discussed in the 

previous section, if the change does not 

qualify as a major modification under 

that test, it is considered a minor 

modification if the net emissions 

increase from the actual-to-projectedactual test is equal to or greater than the 

minor NSR thresholds listed in Table 1 

of section IV.A.3 of this preamble. A 

major source with such a minor 

modification must apply for and obtain 

a minor NSR permit prior to 

commencing construction of the minor 

modification. 

For a physical or operational change 

at your existing minor source, you will 

first determine if the change qualifies as 

a major source by itself (e.g., when a 

source owner adds one or more large 

emissions units to his minor source) 

using the provisions of the applicable 

major NSR program (see, e.g., 40 CFR 

52.21(b)(1)(i)(c)). If it is, then the change 

is subject to the applicable major NSR 

program. 

For modifications at existing minor 

sources that do not qualify as major 

sources by themselves, the total increase 

in allowable emissions resulting from 

the proposed change at your source, 

including fugitive emissions to the 

extent they are quantifiable, only if the 

source belongs to one of source 

categories listed pursuant to section 

302(j) of the Act, would be the sum of 

the following: 

• For each new emissions unit that is 

to be added, the emissions increase 

would be the potential to emit of the 

unit. 

• For each emissions unit with an 

allowable emissions limit that is to be 

changed or replaced, the emissions 

increase would be the allowable 

emissions of the emissions unit after the 

change or replacement minus the 

allowable emissions prior to the change 

or replacement. However, this may not 

be a negative value. If the allowable 

emissions of an emissions unit would be 

reduced as a result of the change or 

replacement, use zero in the calculation. 

• For each unpermitted emissions 

unit (i.e., a unit without any enforceable 

permit conditions) that is to be changed 

or replaced, the emissions increase 

would be the allowable emissions of the 

unit after the change or replacement 16

minus the potential to emit prior to the 

change or replacement.17 However, this 

may not be a negative value. If the 

allowable emissions of an emissions 

unit would be reduced as a result of the 

change or replacement, use zero in the 

calculation. 

If the total increase in allowable 

emissions resulting from your proposed 

modification at your minor source 

causes an increase in allowable 

emissions for one or more regulated 

NSR pollutants above the applicable 

minor NSR threshold (see Table 1 in 

section IV.A.3 of this preamble), the 

modification is subject to this program. 

See final 40 CFR 49.153(b). 

If the total allowable emissions 

increase from your modification is less 

than the corresponding minor NSR 

threshold listed in Table 1, the 

modification is not subject to this minor 

NSR rule. Under this scenario, if a 

permitted allowable emissions limit of 

one or more emissions units increases, 

you must apply for an administrative 

permit revision to amend the allowable 

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18As proposed, ‘‘project netting’’ means that both 

increases and decreases in allowable emissions are 

summed when determining the total emission increase that would result from a proposed 

modification. 

emissions limit for that emissions 

unit(s). See section IV.B.5 of this 

preamble or final 40 CFR 49.153(a)(2) 

and 49.159(f) for more information on 

administrative permit revisions. 

At proposal, we asked for comments 

as to whether minor sources in Indian 

country should be allowed to take credit 

for concurrent emissions reductions that 

would result from a proposed 

modification under the concept 

commonly known as ‘‘project 

netting.’’ 18

Several commenters supported our 

proposal to allow ‘‘project netting’’ in 

the minor NSR program for determining 

whether a proposed project qualifies as 

a modification. However, we are not 

finalizing the ‘‘project netting’’ concept 

at this time to be consistent with our 

position in the major NSR program (See 

final rule titled: ‘‘Prevention of 

Significant Deterioration (PSD) and 

Nonattainment New Source Review 

(NSR): Aggregation and Project Netting’’ 

January 15, 2009 (74 FR 2376)). 

3. What are the minor NSR thresholds? 

As proposed, the ‘‘minor NSR 

thresholds’’ in this final rule establish 

cutoff levels for which sources with 

emissions lower than the thresholds 

would typically be exempt from the 

minor NSR rules (see Table 1 and final 

40 CFR 49.153). 

Various commenters supported the 

development of thresholds and no 

comments were received against this 

concept. However, some commenters 

wanted us to finalize less [e.g., volatile 

organic compounds (VOC) and carbon 

monoxide (CO)] or more stringent 

thresholds (for minor modifications) 

while other commenters expressed 

concern that the source distribution 

analysis that we used to support the 

proposed thresholds did not accurately 

reflect the number of sources currently 

in existence in Indian country. 

TABLE 1—MINOR NSR THRESHOLDS a

Regulated NSR pollutant 

Minor NSR 

thresholds for 

nonattainment 

areas (tpy) 

Minor NSR 

thresholds for 

attainment 

areas (tpy) 

Carbon monoxide (CO) ........................................................................................................................................... 5 10 

Nitrogen oxides (NOX) ............................................................................................................................................. 5 b 10 

Sulfur dioxide (SO2) ................................................................................................................................................. 5 10 

Volatile Organic Compounds (VOC) ....................................................................................................................... 2 b 5 

PM ............................................................................................................................................................................ 5 10 

PM10 ......................................................................................................................................................................... 1 5 

PM2.5 ........................................................................................................................................................................ 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 landfill emissions (measured as nonmethane organic compounds) ................................... NA 10 

a If part of a Tribe’s area of Indian country is designated as attainment and another part as nonattainment, the applicable threshold for a proposed source or modification is determined based on the designation where the source would be located. If the source straddles the two areas, 

the more stringent thresholds apply. b In extreme ozone nonattainment areas, section 182(e)(2) of the Act requires any change at a major source that results in any increase in 

emissions to be subject to major NSR permitting. In other words, any changes to existing major sources in extreme ozone nonattainment areas 

are subject to a ‘‘0’’ tpy threshold, but that threshold does not apply to minor sources. 

After consideration of comments 

received and further evaluation of the 

proposed thresholds, we are finalizing 

the minor NSR thresholds as proposed, 

except for the NOX and VOC thresholds 

in extreme ozone nonattainment areas. 

We are amending the proposed ‘‘0’’ tpy 

NOX and VOC thresholds for the minor 

NSR program in extreme ozone 

nonattainment areas because we believe 

that these thresholds, while required 

under section 182(e)(2) of the Act and 

appropriate as significance levels for 

major sources located in extreme ozone 

nonattainment areas, are not appropriate 

for minor sources. Therefore, we are 

finalizing minor NSR thresholds for 

NOX and VOC in extreme 

nonattainment areas as 5 and 2 tpy 

respectively. We also want to clarify, as 

one commenter suggested, that the PM2.5

threshold applies to direct PM2.5

emissions and does not represent the 

contribution of its precursors (e.g., SO2

or NOX). 

Furthermore, we continue to believe 

that the sources with emissions below 

the thresholds will be inconsequential 

to attainment or maintenance of the 

NAAQS because the national source 

distribution analysis in the proposal (71 

FR 48702) applied to the national source 

distribution at the time (sources inside 

and outside of Indian country) and not 

only to estimates of the possible number 

of existing sources in Indian country. 

For each pollutant, we found that only 

around 1 percent (or less) of total 

emissions would be exempt from review 

under the minor NSR program. At the 

same time, the thresholds would 

promote an effective balance between 

environmental protection and source 

burden because anywhere from 42 

percent to 76 percent of sources 

(depending on the pollutant) would be 

too small to be subject to 

preconstruction review. 

In addition, we believe that such 

thresholds are included in many of the 

minor NSR programs in surrounding 

states, which will allow us to begin 

leveling the playing field with the 

surrounding state programs and will 

result in a more cost-effective program 

by reducing the burden on sources and 

reviewing authorities. 

These thresholds, however, are 

neither the most stringent nor the least 

stringent of the levels found in existing 

state minor NSR rules since they 

represent a reasonable balance between 

environmental protection and economic 

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19We might also consider proposing thresholds 

for greenhouse gases and in accordance with any 

future rulemakings to address small greenhouse gas 

sources as outlined in the rule titled: ‘‘Prevention 

of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule’’ (75 FR 31514). 

20A minor source PAL determination is a 

sourcewide limitation on allowable emissions of a 

regulated NSR pollutant, expressed in tpy, that is 

enforceable as a practical matter and we had 

proposed that you may request that the reviewing 

authority establish an annual minor source PAL for 

one or more of the regulated NSR pollutants emitted 

by your new or existing minor source. 

growth. We did not want the thresholds 

to be so high that they were not 

environmentally protective or so low 

that they ensured environmental 

protection at the cost of discouraging 

economic growth. Nevertheless, to 

address any concerns about the 

stringency of the thresholds, we will 

evaluate the information we collect as 

part of the registration provisions for 

minor sources we are finalizing under 

this rule (see section IV.F of this 

preamble for more information) and will 

consider changing the minor NSR 

thresholds as appropriate.19

4. What emissions units and activities at 

minor sources are exempt from this 

rule? 

Certain emissions units and activities 

at minor sources either do not emit 

regulated NSR pollutants to the ambient 

air or emit these pollutants in negligible 

amounts. Therefore, under 40 CFR 

49.153(c), we are finalizing a list of 

units and activities at minor sources 

that are exempt from this rule: 

1. Mobile sources; 

2. Ventilating units for comfort that 

do not exhaust air pollutants into the 

ambient air from any manufacturing of 

other industrial processes; 

3. Noncommercial food preparation; 

4. Consumer use of office equipment 

and products; 

5. Janitorial services and consumer 

use of janitorial products; 

6. Internal combustion engines used 

for landscaping purposes; and 

7. Bench scale laboratory activities, 

except for laboratory fume hoods and 

vents. 

This list we have finalized is an 

amended list from the exempted units 

and activities we proposed since we are 

not exempting air-conditioning units for 

comfort and heating units for comfort 

until we can study the implications of 

the new rules for greenhouse gases (see 

Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring 

Rule, 75 FR 31514) on these units. In 

addition and also in light of a comment 

received, we are deleting the last 

exemption in the proposed list of 

exemptions (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) 

because we agree with the commenter 

that argued that this exemption can be 

confusing and redundant. 

Furthermore, we would like to clarify 

that the list of exemptions included in 

the proposal’s regulatory text included 

mobile sources, although mobile sources 

were inadvertently left out of the 

exempted units and activities 

discussion in the proposal’s preamble. 

Therefore, we have added mobile 

sources to the list in this preamble and 

have decided to keep mobile sources in 

the list of exempted units and activities 

in this final rule because we continue to 

believe that it is not appropriate to 

include mobile sources in a stationary 

source permitting program and we did 

not receive any comments suggesting 

that mobile sources should be removed 

from the list of exemptions. 

Nevertheless, many commenters 

noted that state and local agencies often 

exempt many more types of emissions 

units and activities and suggested that 

we should expand the exemptions 

included in the final minor NSR rule. 

Some of these commenters also argued 

that failure to expand the list of 

exemptions will significantly burden 

operators of minor sources wishing to 

locate in Indian country, especially the 

oil and gas industry and will thereby 

disadvantage Tribes. 

In light of the comments received, we 

agree that the list of exempted units and 

activities might need to be expanded. 

Therefore, we intend to propose and 

finalize a separate rule to seek public 

comment on the issue of whether 

additional units or activities should be 

exempted from the minor NSR program. 

B. Site-Specific Permits 

1. What are the requirements for permit 

applications? 

As the owner or operator of a 

proposed new minor source or a 

proposed modification that is subject to 

the rule (see 40 CFR 49.154), you must 

submit a complete application to the 

reviewing authority requesting a minor 

NSR permit specific to your source 

(unless you are seeking a ‘‘general 

permit’’). In addition to basic 

information identifying and describing 

your source, your application must 

include a list of all affected emissions 

units. ‘‘Affected emissions units’’ are 

defined as all the emissions units at 

your proposed new minor source or all 

the new, modified and replacement 

emissions units that comprise your 

proposed modification (excluding the 

exempt emissions units and activities 

listed in proposed 40 CFR 49.153(c)). 

Your application must also document 

the increase in emissions of regulated 

NSR pollutants that will result from 

your new source or modification so that 

the reviewing authority can verify that 

you are subject to this minor NSR 

program, rather than to major NSR. For 

each new emissions unit that you list, 

you must provide the PTE in tpy for 

each regulated NSR pollutant, along 

with supporting documentation. For any 

modified or replacement unit that you 

list, you must provide the allowable 

emissions of each regulated NSR 

pollutant in tpy before and after the 

modification or replacement, along with 

supporting documentation. For 

emissions units that do not have an 

established allowable emissions level 

prior to the modification, you must 

provide the pre-change PTE. For the 

post-change allowable emissions for 

these units, you may provide the 

unrestricted post-change PTE or may 

propose a lower level of allowable 

emissions. The allowable emissions for 

any emissions unit are calculated 

considering any emissions limitations 

that are enforceable as a practical matter 

on the unit’s PTE. In calculating these 

emissions levels for applicability 

purposes you should include fugitive 

emissions, to the extent they are 

quantifiable, only for source categories 

listed pursuant to section 302(j) of the 

Act (and as described in sections IV.A.1 

and IV.A.2 of this preamble). 

Furthermore, you may include in your 

application proposed emission 

limitations for the listed emissions 

units. If you do, you must account for 

these limitations in your calculations for 

post-construction PTE and/or allowable 

emissions. 

The application also must identify 

and describe any existing air pollution 

control equipment and compliance 

monitoring devices or activities relevant 

to the affected emissions units, as well 

as any existing emissions limitations or 

work practice requirements to which 

any affected emissions units are subject. 

No commenters expressed concern 

with the proposed permit application 

requirements described above except for 

the concept of PAL.20 One commenter 

believed such provisions will not ensure 

compliance with the statutory mandates 

applicable to minor NSR programs 

under section 110(a)(2)(C) of the Act to 

ensure that NAAQS are attained and 

maintained. Further, the commenter 

maintained that such limits would 

likely be unenforceable as a practical 

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matter at most sources and offered 

extensive arguments for his position. On 

the other hand, a couple of commenters 

expressed support for minor source 

PALs, with one of these commenters 

believing that it is very important that 

aspects of permitting programs at the 

Federal and state levels outside of 

Indian country that provide operator 

flexibility, including the creation of 

PALs, should also be afforded to 

operators currently in or wishing to 

locate in Indian country. 

Based on the comments received, we 

are finalizing the permit application 

requirements mainly as proposed, with 

only two exceptions. See final 40 CFR 

49.154. First, we are not finalizing the 

minor source PAL provisions at this 

time because we agree with the 

opposing commenter that stated, for 

example, that finalizing the PAL 

provisions without more specific 

criteria, including provisions for 

extensive monitoring, would not be 

enforceable. Second and as we 

explained in sections IV.A.1 and IV.A.2, 

we are finalizing provisions that will 

require you, the source owner, to 

include fugitive emissions in the minor 

NSR applicability determinations, to the 

extent they are quantifiable, only for 

those source categories listed pursuant 

to section 302(j) of the Act. 

In addition, we would like to clarify 

that if your source is in a source 

category covered by a general permit 

issued under proposed 40 CFR 49.156, 

you may apply for the general permit for 

that source category instead of a sitespecific permit. The permit application 

requirements for a particular general 

permit will be specified in that general 

permit. General permits, including the 

comments we received about them, are 

discussed further in section IV.C of this 

preamble. 

2. What technical reviews must the 

reviewing authority conduct? 

After determining that your 

application is complete (see section 

IV.B.4 for more information about this 

process), the reviewing authority must 

do 2 types of technical reviews—a 

control technology review and a review 

of the probable impact on air quality of 

the proposed new source or 

modification. These reviews are 

discussed further in the following 

subsections. 

a. Control Technology Review 

As required under section 110(a)(2)(C) 

of the Act, this minor NSR permitting 

program for Indian country is primarily 

designed to assure that the NAAQS are 

achieved and to prohibit any minor 

source from emitting any air pollutant 

in amounts that would contribute to 

nonattainment or interfere with 

maintenance of the NAAQS. Therefore, 

with this single program applicable to 

all areas of Indian country where there 

is no EPA-approved implementation 

plan, we are trying to ensure the 

NAAQS protection required by the 

CAA, while still allowing sufficient 

flexibility in control technology 

requirements for minor sources located 

in Indian country. By control 

technology, we mean pollution 

prevention techniques; add-on pollution 

control equipment; design and 

equipment specifications; work 

practices and operational restrictions. 

For this review, the reviewing 

authority will consider local air quality 

needs, typical control technology used 

by similar sources in surrounding areas, 

anticipated economic growth in the area 

and cost-effective control alternatives. 

At a minimum, the reviewing authority 

must require control technology that 

assures that the NAAQS are achieved 

and that each affected emissions unit 

will comply with all requirements of 40 

CFR parts 60, 61 and 63 that apply. The 

required control technology resulting 

from such a review may range from no 

control technology, to control 

technology that is less stringent than the 

reasonably available control technology 

(RACT) level of control (which is 

typically required for existing major 

sources in nonattainment areas), to 

technology that is the BACT level of 

control (which is the level required for 

new major sources and major 

modifications in attainment areas). The 

control technology chosen would 

depend on the air quality needs of the 

area, other applicable regulatory 

programs of the Act and technical and 

economic feasibility. 

Furthermore and based on the results 

of the control technology review, the 

emission limitations required by the 

reviewing authority may consist of 

numerical limits on the quantity, rate or 

concentration of emissions; pollution 

prevention techniques; design 

standards; equipment standards; work 

practice standards; operational 

standards or any combination thereof. If 

it is technically and economically 

feasible, the reviewing authority must 

require a numerical limit on the 

quantity, rate or concentration of 

emissions for each affected emissions 

unit at your source. 

For a new minor source that is subject 

to this rule, the case-by-case control 

technology review would be conducted 

for all emissions units (except the 

exempt emissions units and activities 

discussed in section IV.A.4 and listed in 

the final 40 CFR 49.153(c)) that emit or 

have the potential to emit the 

pollutant(s) for which the source is 

subject to this rule. For a modification, 

such control technology review would 

apply only to the affected emissions 

unit(s) at your source. 

At proposal, we sought comment on 

the proposed case-by-case control 

technology review for all new and 

modified sources subject to this minor 

NSR program. Therefore, we sought 

comment on whether a control 

technology requirement is necessary to 

achieve the purposes of the Act or 

whether other approaches can achieve 

these purposes just as well with less 

cost and administrative burden. 

Several commenters supported the 

case-by-case control technology review. 

These commenters believed that a caseby-case control technology review 

would allow and promote economic 

growth and development that is tailored 

to the needs in Indian country, while 

one of these commenters added that 

having no capacity to impose controls 

on minor sources would seem to defeat 

the purpose of a permitting process for 

such facilities because a paper permit 

that could not impose any controls adds 

nothing to existing regulation or 

protection of public health and the 

environment. Furthermore, several 

commenters supported a clearly 

defined, standardized method for 

determining the required level of 

control, while one commenter stated 

that a system that requires a single set 

of controls for all minor sources across 

Indian country does not provide the 

needed flexibility to adapt regulation to 

the needs of individual areas of Indian 

country or to take into account the 

benefit of a level playing field with the 

surrounding areas. 

On the other hand, other commenters 

opposed any control technology 

requirement. These commenters 

believed that a Federal program is likely 

to be applied inconsistently, resulting in 

a competitive disadvantage for sources 

located in certain areas; EPA has no 

authority to impose a control technology 

requirement under section 110(A)(2)(C) 

of the Act and a separate control 

technology review process under minor 

NSR is unnecessary when the threat of 

PSD review will otherwise accomplish 

the ultimate objective—protection of air 

resources (i.e., the PSD review is 

generally so complex, time-consuming 

and expensive, that most sources will 

design their projects to remain below 

the applicable PSD thresholds, even if 

that means installing more efficient 

controls, switching to cleaner fuel or 

restricting production or operating 

hours). 

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We disagree with commenters that 

oppose any control technology 

requirement or who suggested that we 

have no authority to require such 

controls. Section 110(a)(2)(c) requires us 

to assure that the NAAQS are achieved 

and we believe that requiring control 

technologies when necessary will 

ensure the NAAQS are protected as 

established in this section. Furthermore, 

section 110(a)(2)(c) does not preclude us 

from requiring additional provisions 

that will further the goal of NAAQS 

protection and the fact that the statutory 

language requires a control technology 

review under some statutory provisions 

does not mean that the statute prohibits 

EPA from requiring it under other 

provisions. 

We also disagree with those 

commenters that would like us to 

implement consistent control 

technologies across the nation. As we 

stated in the proposal, it would be 

impossible to create a single program 

that creates precisely equivalent 

regulations among all areas of Indian 

country. We wish to ensure that Indian 

country is not seen as a potential 

‘‘pollution haven’’ where minor sources 

can go to escape air pollution control 

requirements and we also do not want 

to put Tribes or owners and operators 

locating in Indian country at a 

competitive disadvantage by requiring 

substantially more stringent controls in 

a particular area of Indian country than 

are required in the surrounding areas. 

Therefore, a case-by-case control 

technology review provides the 

reviewing authority with the flexibility 

to create requirements that protect 

public health and environment, but also 

takes into consideration the needs of the 

area in question based on its current air 

quality situation, the potential air 

quality impacts from the growth 

associated with the source and the 

technological and economic feasibility 

of the control technology as well as the 

control technologies in use in the 

surrounding states. 

Therefore, we are finalizing the caseby-case control technology review 

requirements as proposed. The final 

rules require your reviewing authority 

to perform a control technology review 

on a case-by-case basis when issuing a 

site-specific minor NSR permit. See the 

final 40 CFR 49.154(c). For general 

permits, the control technology review 

will be performed at the time when the 

general permit is developed. More 

details on general permits are provided 

in section IV.C of this preamble. 

b. Air Quality Impacts Analysis (AQIA) 

If your reviewing authority has reason 

to be concerned that the construction of 

your minor source or modification 

could cause or contribute to a NAAQS 

or PSD increment violation, your 

reviewing authority may require you to 

conduct an AQIA using dispersion 

modeling in accordance with 40 CFR 

part 51, Appendix W, to determine the 

impacts that will result from your new 

source or modification. If the AQIA 

demonstrates that the construction of 

your source or modification would 

cause or contribute to a NAAQS or PSD 

increment violation, you would be 

required to further reduce its impact 

before you could obtain a permit. 

Various commenters supported 

requiring an AQIA and added that they 

would like us to develop guidance on 

when and how an AQIA analysis should 

be performed. On the other hand, 

several commenters believed that 

AQIAs would be excessive, very costly 

and time consuming for small 

businesses. 

Based on the comments received, we 

are finalizing the AQIA provisions as 

proposed at 40 CFR 49.154(d). We 

continue to believe that allowing 

reviewing authority discretion for when 

an AQIA might be required ensures that 

construction of new minor sources or 

modifications at existing minor sources 

do not cause or contribute to a NAAQS 

or PSD increment violation when 

needed, but limits overburdening all 

minor sources in Indian country with 

these types of air quality analysis. 

Nevertheless, to aid the reviewing 

authorities in the determination of when 

an AQIA might be needed for minor 

NSR sources in Indian country and to 

address the commenters’ suggestions, 

we intend to develop guidance on the 

scope of the AQIA that will consider the 

suggestions presented by these 

commenters. We are also eliminating 

the language in the proposal preamble 

that stated (71 FR 48704) that AQIAs 

will be required ‘‘[i]n rare instances.’’ 

Since the reviewing authority has the 

discretion to require an AQIA, it is 

difficult to predict that such AQIAs will 

be required only in rare instances. 

3. What are the permit content 

requirements? 

The requirements for permits issued 

pursuant to site-specific preconstruction 

review include the following (see 40 

CFR 49.155): 

• The effective date of the permit and 

the date by which you must commence 

construction on your approved project 

in order for your permit to remain valid 

(i.e., 18 months after the permit effective 

date). 

• The emissions units subject to the 

permit and their associated emissions 

limitations. 

• Monitoring, recordkeeping, 

reporting and testing requirements to 

assure compliance with the emission 

limitations. 

In addition, the permit should include 

a number of standard permit terms. 

These include emission limitations, 

monitoring recordkeeping and reporting 

requirements as well as terms such as a 

severability clause (to ensure the 

continued validity of the other portions 

of the permit in the event of a challenge 

to a portion of the permit), a 

requirement to comply with all 

conditions of the permit, a requirement 

that the permitted source does not cause 

or contribute to a NAAQS violation and 

inspection and entry provisions 

requiring that you allow representatives 

of the reviewing authority to enter and 

inspect your source. 

a. Emissions Limitations 

Your permit must include 2 types of 

emission limitations: 

• The emissions limitations for each 

affected emissions unit determined by 

the reviewing authority based on the 

case-by-case technology review 

discussed previously in section IV.B.2 

of this preamble. 

• Limits on annual allowable 

emissions in tpy. 

Emission limitation, as defined in 

40 CFR 49.152, means a requirement 

established by the reviewing authority 

that limits the quantity, rate or 

concentration of emissions of air 

pollutants on a continuous basis, 

including any requirement relating to 

the operation or maintenance of a 

source to assure continuous emissions 

reduction and any design standard, 

equipment standard, work practice, 

operational standard or pollution 

prevention technique. Allowable 

emissions (also as defined under 40 CFR 

49.152) means ‘‘allowable emissions’’ as 

defined in 40 CFR 52.21(b)(16), except 

that the allowable emissions for any 

emissions unit are calculated 

considering any emissions limitations 

that are enforceable as a practical matter 

on the emissions units’ potential to 

emit. Once established in the permit, 

annual allowable emissions become the 

basis for determining whether a later 

change at your source will result in an 

increase in allowable emissions subject 

to permitting under this program. 

We did not specifically receive 

comments on these two types of 

emissions limitations that must be 

included in your permit. Therefore we 

are finalizing these emissions 

limitations at 40 CFR 49.155(a)(2) as 

proposed. 

Additionally, we would like to clarify, 

as some commenters requested, a couple 

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of terms or conditions. One commenter 

interpreted the proposal to only require 

annual emissions limits in the minor 

source permits, while one commenter 

asked us to clarify if the term ‘‘on a 

continuous basis’’ in the definition of 

emissions limitation implies that every 

emission limitation must be complied 

with on an instantaneous time period 

and accompanied by a continuous 

emission monitoring system (CEMS). 

Therefore, we want to clarify that the 

reviewing authority may not only 

require annual emissions limits in the 

minor NSR permits, but also short-term 

limits as necessary. Short-term emission 

limits may also be required as part of 

any enforceable emission limitation 

and, if applicable, depending on the 

relevant ambient air quality standard 

associated with the regulated pollutant. 

Furthermore, the term ‘‘on a 

continuous basis’’ in the definition of 

emission limitation does not imply that 

every emission limitation must be 

complied with on an instantaneous time 

period and accompanied by a CEMS. 

The term ‘‘on a continuous basis,’’ as 

the commenter suggests, means that the 

limitation applies ‘‘at all times,’’ but not 

that the emission limitation has to be 

accompanied by a CEMS. There are 

various ways to monitor compliance 

with limitations that apply on a 

continuous basis as we mention in the 

next section. 

b. Monitoring, Recordkeeping and 

Reporting 

The monitoring, recordkeeping and 

reporting requirements have been 

finalized under 40 CFR 49.155. 

Specifically, the final monitoring 

requirements are under 40 CFR 

49.155(a)(3), the final recordkeeping 

requirements under 49.155(a)(4) and the 

final reporting requirements under 40 

CFR 49.155(a)(5). 

(1) Monitoring requirements. The 

permit must include monitoring 

requirements sufficient to assure 

compliance with any emissions 

limitations contained in the permit. 

Monitoring approaches may include 

CEMS, predictive emissions monitoring 

systems (PEMS), continuous parameter 

monitoring systems (CPMS), periodic 

manual logging of monitor readings, 

equipment inspections, mass balances, 

periodic performance tests and/or 

emission factors, as appropriate for your 

minor source based on the types of 

emissions units, magnitude of emissions 

and air quality considerations. Such 

monitoring shall assure use of terms, 

test methods, units and averaging 

periods consistent with the control 

technology and emission limitations 

required for your source. 

(2) Recordkeeping requirements. The 

permit must include recordkeeping 

requirements sufficient to assure 

compliance with the enforceable 

emission limitations in your permit. 

Records of required monitoring 

information must include all 

calculations using emissions factors, all 

stack tests or sampling information 

including date and time of test or 

sampling, the name of the company or 

entity that performed the analyses, the 

analytical techniques or methods used, 

the results of such analyses and the 

operating conditions existing at the time 

of sampling or measurement. All such 

records including support information 

must be retained for 5 years from the 

date of the record. Support information 

may include all calibration and 

maintenance records and all original 

strip-chart recordings or electronic 

records for continuous monitoring 

instrumentation. 

(3) Reporting requirements. You must 

provide annual monitoring reports 

showing whether you have complied 

with your permit emission limitations. 

You also must provide prompt reports 

of deviations from permit requirements, 

including those attributable to upset 

conditions as defined in the permit, the 

probable cause of such deviations and 

any corrective actions or preventive 

measures taken. Within a permit, the 

reviewing authority must define 

‘‘prompt’’ in relation to the degree and 

type of deviation likely to occur. 

We did not receive any specific 

comments regarding the monitoring and 

recordkeeping requirements, but several 

commenters commented on the 

reporting requirements. Some of these 

commenters specifically asserted that 

requiring annual monitoring reports for 

minor sources is overly burdensome, 

while another commenter would like us 

to require monitoring reports to be 

submitted at least annually, to give the 

reviewing authority flexibility to require 

semiannual monitoring reports and in 

accordance with the title V reporting 

schedule. Other commenters 

recommended that for reporting 

deviations the word ‘‘prompt’’ should 

be defined within the regulation. 

We disagree with those commenters 

that state that the monitoring, 

recordkeeping and reporting 

requirements are too burdensome 

because, as stated in the proposal, 

sections 110(a)(2)(A) and 110(a)(2)(C) of 

the Act require that a preconstruction 

permitting program provide for the 

enforcement of measures that include 

‘‘enforceable emission limitations and 

other control measures, means or 

techniques * * * as well as schedules 

and time-tables for compliance.’’ In 

addition, section 110(a)(2)(F) requires 

that a permitting program may require 

‘‘the installation, maintenance and 

replacement of equipment and the 

implementation of other necessary steps 

by owners and operators of stationary 

sources to monitor emissions from such 

sources,’’ as well as periodic reports on 

the nature and amounts of emissions 

and emissions-related data from such 

sources. Therefore, we believe that, for 

example, annual reporting requirements 

will ensure that sources are complying 

with their annual emissions limits as 

well as any other limits determined by 

the reviewing authority. 

However, we do not believe that 

requiring monitoring reports more 

frequently than annually, as one 

commenter suggested, would be 

appropriate for minor sources. Minor 

sources are typically much smaller than 

the title V sources the commenter is 

referring to and therefore requiring 

monitoring reports more frequently than 

annually might be overly burdensome 

for these sources. However, we 

encourage reviewing authorities to 

develop annual monitoring schedules in 

accordance with title V permit 

monitoring schedules if that facilitates 

the reporting of emissions to the 

reviewing authority. 

We also disagree with the commenters 

that would like us to define the word 

‘‘prompt’’ for the reporting of 

deviations. We continue to believe that 

deferring the definition of this term to 

the reviewing authority is more 

appropriate to ensure that the respective 

permits are protective of the NAAQS 

while also ensuring that the particular 

needs of the area where the source is 

being permitted are considered. For 

example, if a source is locating in a 

particular area of Indian country, the 

reviewing authority might define this 

term by considering the provisions of 

the state and/or the air quality control 

districts surrounding the area of Indian 

country where the source is locating as 

well as technical and economical 

feasibility. Therefore, we are finalizing 

the monitoring, recordkeeping and 

reporting requirements as proposed and 

these requirements will be included in 

each permit as necessary to assure 

compliance with the source’s emission 

limitations. 

c. Other Permit Content Requirements 

Under 40 CFR 49.155(a)(7), we have 

finalized other permit requirements. 

Specifically, these requirements include 

inspection and entry provisions under 

40 CFR 49.155(a)(7)(vii) that state that 

upon presentation of proper credentials, 

you, as the permittee, must allow a 

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representative of the reviewing 

authority to: 

• Enter upon your premises where a 

source is located or emissions-related 

activity is conducted or where records 

are required to be kept under the 

conditions of the permit; 

• Have access to and copy, at 

reasonable times, any records that are 

required to be kept under the conditions 

of the permit; 

• Inspect, during normal business 

hours or while the source is in 

operation, any facilities, equipment 

(including monitoring and air pollution 

control equipment), practices or 

operations regulated or required under 

the permit; 

• Sample or monitor, at reasonable 

times, substances or parameters for the 

purpose of assuring compliance with 

the permit or other applicable 

requirements; and 

• Record any inspection by use of 

written, electronic, magnetic and 

photographic media. 

Commenters on these requirements 

wanted us to clarify that as the 

reviewing authority representative 

enters the source premises for any 

inspection, the reviewing authority 

‘‘must comply with the safety 

requirements of the permittee.’’ Upon 

further evaluation of these provisions, 

we do believe that the representative of 

the reviewing authority should follow 

standard safety requirements identical 

to the ones that apply to the permittee’s 

employees. 

4. What are the permit issuance 

procedures, permit term and public 

participation requirements? 

a. Permit Issuance Process 

Under 40 CFR 49.154(b), we have 

finalized definite timelines for the 

overall minor source permit issuance 

process that vary depending on the type 

of source being regulated under the 

minor NSR program. The timelines are 

described as follows: 

• For minor sources seeking a sitespecific permit, the permit issuance 

process timeline includes a period of 45 

days for the application completeness 

review as well as a 30-day public 

comment period. Any site-specific 

permit will be granted or denied no later 

than 135 days after the date the 

application is deemed complete and all 

additional information necessary to 

make an informed decision has been 

provided. 

• For minor modifications at major 

sources seeking coverage under a sitespecific permit, the permit issuance 

process timeline includes a period of 60 

days for the application completeness 

review as well as a 30-day public 

comment period. Any site-specific 

permit will be granted or denied no later 

than 1 year after the date the application 

is deemed complete and all additional 

information necessary to make an 

informed decision has been provided. 

• For minor sources seeking coverage 

under a general permit (discussed in 

section IV.C of this preamble and under 

40 CFR 49.156), the permit issuance 

process timeline includes a 

completeness review period of 45 days. 

Any request for coverage by individual 

sources under a general permit will be 

granted or denied within 90 days of the 

receipt of such request for coverage by 

the reviewing authority. We believe that 

since the general permit requirements 

have been subject to public notice when 

the general permit was developed, a 

shorter permit issuance process is 

warranted for determining whether a 

source is eligible for coverage under the 

general permit. 

• For synthetic minor sources 

(discussed in section IV.D of this 

preamble and under 40 CFR 49.158), the 

permit issuance process timeline 

includes, as proposed, a period of 60 

days for the application completeness 

review as well as a 30-day public 

comment period. Any synthetic minor 

permit will be granted or denied no later 

than 1 year after the date the application 

is deemed complete and all additional 

information necessary to make an 

informed decision has been provided. 

The application for a permit under 

this program will be reviewed by the 

reviewing authority within 45 days of 

its receipt for site-specific permits 

(60 days from its receipt for synthetic 

minor permits and minor modification 

at major sources) to determine whether 

the application contains all the 

information necessary for processing the 

application. If the reviewing authority 

determines that the application is not 

complete, it will request additional 

information as necessary to process the 

application. If the reviewing authority 

determines that the application is 

complete, it will notify you in writing. 

The reviewing authority’s completeness 

determination or request for additional 

information should be postmarked 

within 45 days of receipt of the permit 

application by the reviewing authority 

for site-specific permits (60 days of 

receipt of the permit application by the 

reviewing authority for synthetic minor 

permits and minor modifications at 

major sources). If you do not receive a 

request for additional information or a 

notice of complete application 

postmarked within 45 days of receipt of 

the permit application by the reviewing 

authority for site-specific permits (60 

days for synthetic minor permits and 

minor modification at major sources), 

your application will be deemed 

complete. Once the application is 

complete, your reviewing authority will 

develop a draft permit and provide 

public notice seeking comments on the 

draft permit for a 30-day period. After 

considering all timely, relevant 

comments, if your reviewing authority 

determines that your new source or 

modification meets all applicable 

requirements, it will issue you a final 

permit. Otherwise, the reviewing 

authority will send you a letter denying 

your permit application with reasons for 

the denial. 

We decided to finalize a definite 

timeline for the overall minor source 

permit issuance process that varies 

depending on the type of source being 

regulated under the minor NSR program 

because we agree with those 

commenters who believed that this 

timeline will provide regulatory 

certainty for the regulated community 

and the public, as well as time for the 

regulated community and the reviewing 

authority to plan for the permit issuance 

process. Specifically, commenters 

believed that the proposed permit 

issuance process was too lengthy and/or 

too uncertain for minor sources. They 

argued that state minor NSR programs 

are bound by shorter and more definite 

time lines. In addition, a few 

commenters believed that the proposed 

language could allow a permit 

application to be held without a final 

decision for an unreasonable period, 

resulting in serious financial burden, 

lost business opportunities, a delay in 

the project and even cancellation of the 

project. 

Furthermore, we have amended our 

proposed completeness review 

procedures, as suggested by some 

commenters and we will no longer 

require that if the source has not 

received a notice of completeness or a 

request for additional information in 50 

days, that the application would be 

deemed complete. We agree with those 

commenters that expressed concerns 

that this provision can be confusing. 

Therefore and as we stated previously, 

if you do not receive a request for 

additional information or a notice of 

complete application postmarked 

within 45 days of receipt of the permit 

application by the reviewing authority 

for site-specific permits (60 days for 

synthetic minor permits and minor 

modification at major sources), your 

application will be deemed complete. 

The permit issuance procedures for 

general permits are discussed in section 

IV.C.5 of this preamble. 

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b. Permit Term 

Under 40 CFR 49.155(b), we have 

finalized provisions that state that your 

permit remains valid as long as you 

commence construction on your project 

within 18 months after the effective date 

of the permit, you do not discontinue 

construction for a period of 18 months 

or more and you complete construction 

in a reasonable time. The reviewing 

authority may extend the 18-month 

period where justified and that 18- 

month limit does not apply to the time 

period between construction of 

approved phases of a phased 

construction program. In those cases, 

you must commence construction of 

each such phase within 18 months of 

the approved commencement date for 

that phase. 

We received only one comment about 

the permit term provisions. This 

commenter had concerns about the 

proposal preamble language that stated 

that: ‘‘a preconstruction permit does not 

expire.’’ Specifically, this commenter 

stated that it may be appropriate to 

specify that the permit does expire after 

a specified period, subject to renewal for 

a specified period upon showing of 

diligence by the source. If a 

preconstruction permit does not expire, 

the commenter argues that the permit 

term provisions may be administratively 

impractical to implement. 

Upon further review of these 

provisions, we have noticed that the 

language we used in the proposal 

preamble was not consistent with the 

provisions we proposed under 40 CFR 

49.155(b). Under 40 CFR 49.155(b), we 

proposed provisions for when permits 

become invalid and did not state that ‘‘a 

preconstruction permit does not 

expire.’’ Therefore, we have eliminated 

the proposal preamble language that 

stated that permits do not expire and we 

are finalizing the proposed provisions as 

stated under 40 CFR 49.155(b). 

In addition, we would like to clarify 

that permits under this program would 

not be revoked at the source’s request 

when there is a rapid decrease in 

production, as a few commenters 

recommended. In such a case, the limits 

of these permits might be revised 

appropriately to account for the 

reduction, but the permit would not be 

revoked. Permits will be revoked only if 

the source officially shuts down its 

operation and notifies the reviewing 

authority about the business closure. 

c. Public Participation Requirements 

We have finalized our public 

participation requirements under 40 

CFR 49.157 for site-specific permits, 

minor modification at major sources, 

synthetic minor sources and the initial 

development of a general permit for a 

source category. Pursuant to these 

requirements, the reviewing authority is 

required to prepare a draft permit and 

provide adequate public notice to 

ensure that the affected community and 

the general public have reasonable 

access to the application and draft 

permit information. The reviewing 

authority must make such information 

available for public inspection at the 

appropriate EPA Regional Office and in 

at least one location in the area affected 

by the source, such as the Tribal 

environmental office or a local library. 

The public notice must provide an 

opportunity for public comment and a 

public hearing on the draft permit. The 

appropriate types of notice may vary 

depending on the proposed project and 

the area of Indian country that would be 

affected. 

In all cases, the reviewing authority 

must mail a copy of the notice to you 

(the permit applicant); the appropriate 

Indian governing body and the Tribal, 

state and local air pollution authorities 

having jurisdiction adjacent to the area 

of Indian country potentially impacted 

by the air pollution source. In addition, 

the reviewing authority may elect to 

provide public notice for a given 

situation as appropriate and depending 

on such factors as the nature and size of 

your source, local air quality 

considerations and the characteristics of 

the population in the affected area. The 

optional methods of notifying the public 

include the following: 

• Mailing or e-mailing a copy of the 

notice to persons on a mailing list 

developed by the reviewing authority 

consisting of those persons who have 

requested to be placed on such a 

mailing list. 

• Posting the notice on its Web site. 

• Publishing the notice in a 

newspaper of general circulation in the 

area affected by the source. Where 

possible, the notice may also be 

published in a Tribal newspaper or 

newsletter. 

• Providing copies of the public 

notice for posting at locations in the 

area affected by your source. We expect 

that such locations might include post 

offices, libraries, Tribal environmental 

offices, community centers and other 

gathering places in the community. 

• Other appropriate means of 

notification. 

Furthermore, the reviewing authority 

must provide for a 30-day public 

comment period on the draft permit. 

After considering all relevant public 

comments, the reviewing authority will 

make a final decision to issue or deny 

your permit. The public (including you, 

the permit applicant) will have an 

opportunity to appeal the final decision 

under 40 CFR 49.159. Final permit 

issuance and the opportunity for appeal 

are discussed further in the next section 

of this preamble. 

Several commenters supported the 

proposed public participation 

requirements stating that they like the 

proposed mix of mandatory and 

optional approaches to notices, while 

others suggested that the overall 

permitting process should be shortened. 

On the other hand, other commenters 

argued that the proposed public 

participation requirements were too 

burdensome, time consuming and will 

be open to abuse by persons who 

oppose any sort of development 

including development from very small 

projects. Therefore, some of these 

opposing commenters suggested adding 

a de minimis threshold below which 

sources would be exempt from the 

public notice and participation 

requirements in order to match the level 

of public participation to the 

environmental significance of the 

project. In addition, one commenter 

believed that we should strengthen the 

proposed public participation 

requirements by requiring notices to be 

sent by mail or e-mail to all persons 

requesting such notice, by requiring 

notices to be published in a Tribal 

newspaper or newsletter and by 

requiring other means of publication 

customary to the Tribe, where possible. 

They also wanted us to hold a public 

hearing whenever one is requested. 

After careful consideration of these 

comments, we are finalizing our public 

participation requirements for sitespecific permits, minor modifications at 

major sources, synthetic minor permits 

and the initial development of a general 

permit for a source category as 

proposed, with the clarification that the 

appropriate types of notice will take 

into consideration any seasonal 

activities that may conflict with the 

public participation of the local 

community (e.g., subsistence hunting 

and fishing or other seasonal cultural 

practices). We believe these 

requirements are consistent with the 

current public availability of 

information requirements under our 

existing regulations at 40 CFR 51.161 

and they add optional public noticing 

and participation provisions that will 

enhance the permitting process. All the 

requirements will ensure that the public 

is informed about the permitting actions 

occurring in Indian country and will 

also ensure that the particular public 

noticing needs in Indian country are 

considered. 

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We are not matching the public 

participation requirements to the 

environmental significance of the 

project, as some commenters suggested, 

because we believe that the public has 

the right to know about any permitting 

actions occurring in their area 

notwithstanding the environmental 

significance of the project and that a 30- 

day public comment period on a 

permitting action, as in our existing 

regulations, is an appropriate timeline 

for this purpose. 

In addition, we do not believe that our 

public participation requirements need 

to be strengthened at this time, as some 

commenters suggested, because we used 

the existing regulations under 40 CFR 

51.161 as the basis for our public 

noticing requirements and added 

additional optional provisions to ensure 

that factors such as the nature and size 

of the source, the local air quality and 

the characteristics of the population in 

the area are considered. Therefore, we 

believe that these requirements are more 

detailed than the requirements in our 

existing regulations under 40 CFR 

51.161 and do not need to be 

strengthened even further at this time. 

We also continue to believe that, as 

proposed, the reviewing authority 

should be able to hold a public hearing 

at its own discretion. We believe that 

the reviewing authority is in the best 

position to determine whether there is 

significant interest in a hearing on a 

case-by-case basis and to decide 

whether it is more administrative and 

economically prudent to ask a small 

number of commenters to submit their 

comments in writing. 

To address any concerns about the 

length of the entire permit issuance 

process, we are finalizing definite 

timelines for the overall permitting 

process depending on the source type. 

See section IV.B.4.a of this preamble for 

more details about the permit issuance 

process timeline. 

5. What are the provisions for final 

action on a permit, permit reopenings, 

administrative permit revisions and 

administrative and judicial review 

procedures? 

In general, these provisions are based 

closely on selected provisions of part 

124, subpart A. The specific provisions 

are as follows: 

a. Final Action on a Permit 

Under 40 CFR 49.159(a), we have 

finalized provisions regarding how final 

action on a permit will occur. 

Specifically we state that after a 

decision to issue or deny your permit, 

the reviewing authority must notify you, 

the permit applicant, of the decision in 

writing and, if the permit is denied, 

provide the reasons for the denial and 

the procedures for appeal. If the 

reviewing authority issues a final permit 

to you, the reviewing authority must 

provide adequate public notice of the 

final permit decision to ensure that the 

affected community, general public and 

any individuals who commented on the 

draft permit have reasonable access to 

the decision and supporting materials. 

Furthermore, under 40 CFR 49.159(b) 

we have finalized provisions regarding 

how long the reviewing authority will 

retain permit-related records and under 

40 CFR 49.159(c) the requirements on 

what must be in that record. For 

example, the records must be kept by 

the reviewing authority for not less than 

5 years. The administrative record must 

include the application and any 

supporting data furnished by the 

applicant and all comments received 

during the public comment period, 

including any extension or reopening. 

A few commenters supported the 

proposed provisions for providing 

notice of final permit actions, which 

included making a copy of the final 

permit available at all of the locations 

where the draft permit was made 

available. These commenters believed 

that such notice should be provided in 

the same manner that it was provided 

during the public comment on the draft 

permit and not depend, as we proposed, 

‘‘upon the circumstances of your 

permit’’. 

On the other hand, a few commenters 

indicated that the proposed notification 

requirements are excessive. They 

believed that the proposed requirements 

are more stringent than the 

requirements for major sources under 

the PSD program and/or the part 71 

program, which they believed is 

unwarranted because the impact for 

minor sources on public health and/or 

the environment would be much lower 

than major sources. Furthermore, some 

of these commenters argued that EPA 

may find the proposed requirements 

burdensome and expensive unless the 

method of notice is limited to something 

such as publication on EPA’s Web site. 

Based on the comments received, we 

agree that, for site-specific permits, 

making a copy of the permit available at 

all of the locations where the draft 

permit was made available might be too 

burdensome for the reviewing 

authorities. Accordingly, we are 

amending 40 CFR 49.159(a) to require 

copy of the final permit decision to be 

made available at all of the locations 

where the draft permit was made 

available for synthetic minor sources 

and minor modifications at major 

sources, but we are requiring the 

reviewing authority to only elect one or 

more of the methods for public noticing 

under 40 CFR 49.157(b)(1)(ii) for sitespecific permits. As proposed, sources 

are required to post, prominently, a 

copy of the letter granting the request 

for coverage under the general permit at 

the site where the source is locating. 

More details about the general permit 

provisions are provided in section IV.C 

of this preamble. 

Regarding the administrative record 

for a permit decision, several 

commenters commented on how long 

the reviewing authority should retain 

permit-related records. These 

commenters agreed with the provision 

of keeping records for not less than 5 

years, while one commenter specifically 

asked us to require the reviewing 

authority to retain permit records for the 

life of the source. We believe that 

keeping permit records for the life of the 

source will be too burdensome, 

especially when we do not require 

permit records for major sources under 

some provisions of the major NSR 

program to be kept for more than 5 years 

either. Therefore, we have finalized, as 

proposed and under 40 CFR 49.159(b), 

that the reviewing authority must retain 

permit-related records for not less than 

5 years. 

No comments were received on what 

must be kept on the administrative 

record and thus, we have also finalized 

these provisions, under 40 CFR 

49.159(c), as proposed. 

b. Permit Reopenings 

Under 40 CFR 49.159(e) we have 

finalized provisions regarding when 

your permit can be reopened. These 

provisions state that the reviewing 

authority may reopen a final, currentlyin-effect permit for cause on its own 

initiative, such as if the permit contains 

a material mistake or fails to assure 

compliance with applicable 

requirements. However, except for those 

permit reopenings that do not increase 

the emissions limitations in the permit, 

such as permit reopenings that correct 

typographical errors, all other permit 

reopenings shall be carried out after the 

opportunity for public notice and 

comment and in accordance with one or 

more of the public participation 

requirements under 40 CFR 

49.157(b)(1)(ii). 

These final provisions amend the 

proposed provisions, which stated, 

among other requirements, that any 

person (including the permittee) may 

petition the reviewing authority to 

reopen a permit for cause, based on the 

comments we received. Commenters 

were concerned about allowing 

anyone—regardless of motive or lack of 

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21See 71 FR 48743 for more information on the 

proposed list of administrative permit revisions. 

factual support—to petition to reopen 

permits issued to sources of 

insignificant emissions. Furthermore, 

they argued that the proposed 

provisions were more stringent than the 

reopening provisions in the major 

source permitting programs, which they 

contend is unwarranted for minor 

sources and that these provisions are 

inconsistent with state minor NSR 

programs. 

We agree, as some commenters 

suggested, that the provisions we 

proposed might open potential avenues 

for any person, even if uninformed or 

maliciously intentioned, to harass and 

disrupt permitting operations. In 

addition, we did not intend to 

excessively restrict the reasons for why 

a permit should be reopened by us, as 

the reviewing authority, by stating in 

the proposal that the reviewing 

authority may not reopen a permit for a 

cause unless it contains a material 

mistake or fails to assure compliance 

with the applicable requirements. We 

do agree that the reasons for reopening 

the permit by the reviewing authority 

should not be limited to the permit 

containing a material mistake or failing 

to assure compliance with applicable 

requirements. Therefore and as stated 

previously, we have amended the 

proposed provisions by adopting the 

language finalized at 40 CFR 49.159(e). 

c. Administrative Permit Revisions 

Under 40 CFR 49.159(f), we have 

finalized provisions to allow for minor 

changes in the permit without these 

changes being subject to the permit 

application, issuance, public 

participation or administrative and 

judicial review requirements of the 

program. For example, an 

administrative permit revision is a 

permit revision that could make a 

change such as: (1) Correcting a 

typographical error, (2) requiring more 

frequent monitoring or reporting by the 

permittee or (3) identifying a change in 

the name, address or phone number of 

any person identified in the permit. 

However, proposed physical or 

operational changes that could not be 

implemented within the requirements of 

an existing permit would necessitate a 

permit revision, even if they are not 

otherwise subject to major or minor 

NSR. (See final 40 CFR 49.159(f) for 

more information on the provisions that 

govern administrative permit revisions). 

A few commenters supported our 

proposed administrative permit revision 

provisions 21 because they believed that 

these provisions will allow a source to 

make minor changes without being 

subject to the overall permit process, 

while one commenter specifically 

opposed the provision to allow 

increases in allowable emission limits 

through an administrative permit 

revision since the commenter believed. 

According to the commenter, increases 

in allowable emission rates must be 

subject to NSR permitting, review of 

impacts on air quality and public notice 

and review. 

We agree with those commenters that 

support the administrative permit 

revision provisions for the situations 

outlined in the proposal and hence we 

are finalizing these provisions as 

proposed at 40 CFR 49.159(f). We 

believe that permit changes involving 

typographical errors, more frequent 

monitoring and reporting requirements 

and/or changes in ownership should not 

go through the overall permitting 

process. 

We understand, however and as the 

opposing commenter suggested, that 

there might be particular concerns with 

the provision at 40 CFR 49.159(f)(v) 

where an administrative permit revision 

is allowed for an increase in an 

emissions unit’s annual allowable 

emissions limit for a regulated NSR 

pollutant, when the action that 

necessitates such increase is not 

otherwise subject to review under major 

NSR or under this program. For 

example, this case could be one where 

a source introduces a new coating to a 

process line that will increase the 

emissions of that unit but the emissions 

increases from the source will not 

trigger the minor NSR requirements. 

Although this type of change does not 

trigger the major or the minor NSR 

thresholds, we continue to believe that 

we need to account for these changes in 

emissions in the permit to know the 

source’s current allowable emissions 

and to ensure that the source is 

complying with the applicable 

requirements. Therefore, an 

administrative permit revision can be 

used when the increase in an unit’s 

allowable emissions limit for a regulated 

NSR pollutant is not subject to major or 

minor NSR. 

d. Administrative and Judicial Review 

Procedures 

At 40 CFR 49.159(d), we have 

finalized the provisions under which 

permit decisions may be appealed. 

Permit decisions may be appealed to the 

Environmental Appeals Board (EAB) 

within 30 days after a final permit 

decision has been issued and a final 

permit typically will not become 

effective until 30 days after the service 

of notice of the final permit decision. 

Upon filing a petition for review, the 

permit would be stayed (i.e., not go into 

effect) until the EAB decides whether to 

review any condition of the permit and 

the reviewing authority takes any action 

required by the EAB. When the EAB has 

issued its final order on an appeal, a 

motion to reconsider the final order may 

be filed with the EAB within 10 days. 

Only after all the administrative 

remedies under proposed 40 CFR 49.159 

have been exhausted could the person(s) 

filing the petition seek review in the 

Federal Court of Appeals with 

jurisdiction over the area of Indian 

country in which the source is located. 

We proposed and took comment on two 

options for reviewing final permit 

decisions by reviewing authorities 

under 40 CFR 49.159(d). The option 

described above or Option 1 (where 

review of minor NSR permits will be 

similar to review of major PSD permits 

issued under 40 CFR 52.21 and which 

occurs in accordance with EPA’s 

permitting regulations at 40 CFR part 

124) and an alternative Option 2, where 

the reviewing authority’s initial permit 

could be appealed directly to the 

appropriate Federal Court of Appeals 

without a requirement to appeal to the 

EAB first. 

Several commenters supported 

Option 1 because they believed that the 

EAB has greater environmental 

expertise and is likely to resolve issues 

more quickly. These commenters also 

argued that citizen appeals to the EAB 

represent an easier threshold to meet for 

the layperson that is aggrieved by a final 

agency action. They believed it is easier 

for most citizens to write a letter to the 

EAB requesting an appeal than it is to 

hire an attorney to sue a governmental 

agency. 

Supporting commenters also argued 

that it makes more sense to delay the 

effective date of the permit while the 

issues are being resolved (rather than 

allowing the source to begin 

construction), while some of these 

supporting commenters would like us to 

allow the permit to become effective 

immediately upon issuance unless a 

later date is specified. These latter 

commenters believed this option will 

allow for development in Indian 

country while encouraging participation 

from environmental experts should an 

appeal occur. 

Other commenters opposed Option 1. 

These commenters stated that delaying 

final permit effectiveness for 30 days 

after issuance will compound an already 

lengthy permitting process. They also 

argued that these provisions are not 

consistent with the process that most 

states follow with their minor NSR 

programs and that these provisions are 

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ripe for abuse and would encourage 

challenges from anti-development 

stakeholders. 

On the other hand, several 

commenters specifically endorsed 

Option 2 because it allows the source to 

determine whether to commence 

construction at its own risk. Some of 

these commenters also noted that this 

option is more consistent with most 

state minor NSR programs and it 

eliminates an intermediate step, the 

EAB review. These commenters also 

argued that Option 2 is more 

appropriate due to the size and amount 

of emissions from minor NSR sources 

and it expedites the permitting process. 

Another commenter added that for 

Tribes that have or will be seeking, 

delegation of the NSR program, the rule 

should allow for Tribal administrative 

and Tribal court review prior to going to 

Federal court. 

Based on the comments received, we 

agree with those commenters that 

support the option of filing a petition for 

permit review through the 

Environmental Appeals Board. We 

believe, as some commenters stated, that 

the EAB has greater environmental 

expertise, is likely to solve issues more 

quickly and it will be easier for the 

public to file a petition through the EAB 

than to hire an attorney to go through 

the appeals process. 

However, we are not allowing permits 

to become effective immediately upon 

the service of notice of the final permit 

decision under the EAB option, as some 

commenters suggested, because the 

proposed provisions are based upon the 

EAB regulations under 40 CFR 124.15 

and we did not propose to allow a 

different approach under this rule. The 

EAB regulations clearly state, under 40 

CFR section 124.15(b), that a final 

permit decision shall become effective 

30 days after the service of notice of the 

decision unless: (1) A later effective date 

is specified in the decision; (2) a review 

is requested on the permit under 40 CFR 

124.19 or (3) no comments requested a 

change in the draft permit, in which 

case the permit shall become effective 

immediately upon issuance. In other 

words, EPA regulations specify that the 

only permits that become effective upon 

issuance are those for which no 

comments were submitted. 

Furthermore, we do not believe we can 

allow sources to construct while the 

EAB process is pending, because while 

a permit is being reviewed by the EAB, 

it is not effective and thus it does not 

authorize construction. 

Regarding the commenter that stated 

that delegated programs should allow 

for Tribal administrative and Tribal 

court review prior to going to Federal 

court, we disagree. This is because 

under a delegated Federal program, the 

delegated Indian Tribe would be 

assisting EPA with the administration of 

Federal requirements on EPA’s behalf 

and under these Federal regulations. 

Any Federal requirement administered 

by a delegated Tribe and any permit 

issued by such a delegated Tribe would 

remain Federal actions subject to EPA 

enforcement and EPA appeal 

procedures under Federal law. On the 

other hand, if a Tribe develops and EPA 

approves a TIP that includes a NSR 

program, Tribally-issued NSR permits 

would be subject to administrative and 

judicial review under the applicable 

Tribal program as approved by EPA. 

Therefore, we are finalizing the 

administrative and judicial review 

procedures for Option 1 as proposed at 

40 CFR 49.159(d). 

C. General Permits 

1. What is a ‘‘General Permit?’’ 

A ‘‘general permit’’ is a 

preconstruction permit that may be 

applied to a number of similar 

emissions units or minor sources. The 

purpose of a general permit is to 

simplify the permit issuance process for 

similar facilities so that a reviewing 

authority’s limited resources need not 

be expended for site-specific permit 

development for such facilities. A 

general permit may be written to 

address a single emissions unit, a group 

of the same type of emissions units or 

an entire minor source. We believe that 

general permits offer a cost-effective 

means of issuing permits and provide a 

quicker and simpler alternative 

mechanism for permitting minor 

sources than the site-specific permitting 

process discussed previously. 

We received strong support for the 

development of general permits. These 

commenters believed that the 

development of general permits for 

sources of similar operation and 

emissions will simplify the permit 

issuance process. On the other hand, 

one commenter urged EPA to issue 

guidance for particular source 

categories, rather than use general 

permits to streamline permitting. The 

commenter believed that developing 

guidance documents is a better method. 

We agree with those commenters who 

supported the development of general 

permits because we believe, as some 

commenters suggested, that general 

permits will simplify the permit 

issuance process, avoid the need for 

case-by-case control technology review 

for those source categories/units for 

which the general permit was 

established and reduce the 

administrative burden of the reviewing 

authorities. However, we disagree with 

the commenter that preferred guidance 

rather than general permits for the 

minor NSR program in Indian country. 

We understand that general permits are 

not appropriate in all circumstances, but 

we believe it is appropriate to develop 

general permits for certain source 

categories/units, especially for those 

source categories/units for which the 

control technology or technologies 

available are fairly standard. Therefore, 

we are finalizing the option of 

developing general permits as proposed 

under 40 CFR 49.156. 

In addition, upon consideration of 

other alternatives to streamline minor 

source permitting, we plan to propose 

permits-by-rule for suitable source 

categories not covered by general 

permits. The permits-by-rule content 

and requirements will be addressed in 

a separate rulemaking action. 

2. What is the process for issuing 

general permits? 

Under 40 CFR 49.156(b), we have 

finalized the provisions for the general 

permits issuance process. The reviewing 

authority may issue a general permit for 

a category of emissions units or sources 

that are similar in nature, have 

substantially similar emissions and 

would be subject to the same or 

substantially similar requirements 

governing operations, emissions, 

monitoring, reporting and 

recordkeeping. ‘‘Similar in nature’’ 

refers to size, processes and operating 

conditions. 

A general permit must be issued 

according to the requirements for public 

participation in 40 CFR 49.157 and the 

requirements for final permit issuance 

and administrative and judicial review 

in 40 CFR 49.159. Issuance of a general 

permit is considered final action with 

respect to all aspects of the general 

permit except its applicability to an 

individual source. The sole issue that 

may be appealed after an individual 

source is approved to construct under a 

general permit is the applicability of the 

general permit to a particular source. 

We did not receive comments regarding 

the proposed general permit issuance 

procedures under 49.156(b). 

Consequently, we are finalizing the 

provisions under 49.156(b) as proposed. 

3. For what categories will general 

permits be issued? 

Under 40 CFR 49.156(c), we have 

finalized provisions allowing the 

reviewing authority to determine which 

categories of individual emissions units, 

groups of similar emissions units or 

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38768 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

sources are appropriate for general 

permits in its area. 

General permits may be issued to 

cover any category of numerous similar 

sources, provided that such sources 

meet the appropriate criteria. For 

example, permits can be issued to cover 

small businesses such as gas stations or 

dry cleaners. General permits may also, 

in some circumstances, be issued to 

cover discrete emissions units, such as 

individual solvent cleaning machines at 

industrial complexes. 

In addition, in setting criteria for 

sources to be covered by general 

permits, your reviewing authority will 

consider the following factors. First, 

categories of sources or emissions units 

covered by a general permit should be 

generally homogeneous in terms of 

operations, processes and emissions. All 

sources or emissions units in the 

category should have essentially similar 

operations or processes and emit 

pollutants with similar characteristics. 

Second, the sources or emissions units 

should be expected to warrant the same 

or substantially similar permit 

requirements governing operation, 

emissions, monitoring, recordkeeping 

and reporting. 

A few commenters specifically 

requested establishing general permits 

for the oil and gas sector. Other 

commenters were more general in their 

general permits recommendations and 

stated that general permits should be 

adopted for categories of similar sources 

and emissions units and developed 

before the minor NSR program is 

adopted in Indian country. These 

commenters also added that EPA needs 

to define further the criteria for 

developing general permits and the 

categories of emissions sources to which 

the program may apply. For example, 

some of these commenters would like us 

to develop general permits that are 

consistent across all of Indian country. 

Based on the comments received, we 

are in the process of developing general 

permits for various source categories 

under the factors mentioned. The 

permits will be consistent across all of 

Indian country, as some commenters 

suggested, unless there is a need to 

develop specific provisions or a specific 

general permit, for a particular area of 

Indian country. We also plan to develop 

these general permits, after the 

opportunity for public notice and 

comment, using the public noticing 

procedures under 40 CFR 49.157. 

Furthermore, we plan to update general 

permits, also after the opportunity of 

notice and comment under 40 CFR 

49.157, as appropriate to account for 

advances in control technology or for 

other pertinent reasons. However, when 

we update a general permit, sources 

operating under the existing general 

permit will be able to continue to 

operate under that existing permit until 

such time when the source is modified. 

4. What are the permit content 

requirements for general permits? 

General permits must contain the 

same permit elements required for 

permits issued under the site-specific 

preconstruction review rules. These 

permit elements are described in section 

IV.B of this preamble and listed in final 

40 CFR 49.155(a). 

In addition, the general permit must 

identify the specific category of 

emissions units or sources to which the 

general permit applies, including any 

criteria that your emissions unit must 

meet to be eligible for coverage under 

the general permit. The general permit 

must also include information required 

to apply for coverage under the general 

permit, such as the name and address of 

your reviewing authority, how to obtain 

application forms and the information 

you must provide to demonstrate that 

you are eligible for coverage. Finally, 

the reviewing authority may include 

other general permit terms and 

conditions as it deems necessary. 

We did not receive any comments on 

the permit content requirements for 

general permits. Therefore, we are 

finalizing the general permit content 

requirements as proposed under 

49.156(d). 

5. What is the process that you may use 

for obtaining coverage under a general 

permit? 

Under 40 CFR 49.156(e), we have 

finalized provisions that state that once 

a general permit has been issued for a 

source category or category of emissions 

units, you may submit a request for 

coverage under that general permit if 

your proposed new minor source or 

modification qualifies for that permit. 

Alternatively, you may apply for a sitespecific permit under the provisions of 

40 CFR 49.154. 

If your source qualifies for a general 

permit, you may request coverage under 

that general permit to the reviewing 

authority 4 months after the effective 

date of the general permit, that is, 6 

months after publication of the general 

permit in the Federal Register. The 

reviewing authority must act on your 

request for coverage under the general 

permit as expeditiously as possible, but 

it must notify you of the final decision 

within 90 days of its receipt of your 

coverage request. 

Your reviewing authority must 

comply with a 45-day completeness 

review period to determine if your 

request for coverage under a general 

permit is complete. Therefore, within 30 

days after the receipt of your coverage 

request, your reviewing authority must 

make an initial request for any 

additional information necessary to 

process this request and you must 

submit such information within 15 

days. If you do not submit the requested 

information within 15 days from the 

date of the request for additional 

information and this results in a delay 

that is beyond the 45-day completeness 

review period, the 90-day permit 

issuance period for your general permit 

will be extended by the additional days 

you take to submit the requested 

information beyond the 45-day period. 

If the reviewing authority fails to notify 

you within a 30-day period of any 

additional information necessary to 

process your coverage request, you will 

still have 15 days to submit such 

information and the reviewing authority 

must still grant or deny your request for 

coverage under a general permit within 

the 90-day general permit issuance 

period and without any time extension. 

If the reviewing authority determines 

that your request for coverage under a 

general permit has all the relevant 

information and is complete, we will 

notify you in writing as soon as that 

determination is made. If you do not 

receive from the reviewing authority a 

request for additional information or a 

notice that your request for coverage 

under a general permit is complete 

within the 45-day completeness review 

period described previously, your 

request for coverage under a general 

permit will be deemed complete. 

As proposed, your reviewing 

authority shall grant or deny your 

request for coverage under a general 

permit without another 30-day public 

comment period. However, you must 

submit a copy of such request to the 

Tribe in the area where your source is 

locating. We will also post notice of the 

coverage request under the general 

permit on our Web site. During our 

review of your request for coverage 

under the general permit, commenters 

can only notify us of any concerns about 

the eligibility of your source to obtain 

coverage under that general permit and 

not on any other issue. Your reviewing 

authority shall grant or deny your 

request for coverage under a general 

permit as expeditiously as possible by 

sending you a letter notifying you of the 

approval or denial of your request. This 

letter is a final action for purposes of 

judicial review (see 40 CFR 49.159) only 

for the issue of whether your source 

qualifies for coverage under the general 

permit. If your request for coverage 

under a general permit is approved, you 

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22 John S. Seitz and Eric V. Schaeffer. Policy 

memo. ‘‘Potential to Emit Transition Policy for Part 

71 Implementation in Indian Country.’’ March 7, 

1999. 

must post, prominently, a copy of the 

letter granting such request at the site 

where your source is locating and you 

must comply with all the condition and 

terms of the general permit. 

You will be subject to enforcement 

action for failure to obtain a 

preconstruction permit if you construct 

the emission unit(s) or source under the 

general permit and your source is later 

determined not to qualify for the 

conditions and terms of the general 

permit. Any source eligible to request 

coverage under the general permit may 

alternatively apply for a site-specific 

permit under 40 CFR 49.154. 

We received a few comments 

regarding the timeline in which the 

reviewing authority must notify you of 

the final decision on a request for 

coverage under a general permit. These 

commenters argued that the 90-day 

period we proposed for the reviewing 

authority to determine coverage under 

the general permit should be eliminated 

or at least reduced to 30 days. However, 

we continue to believe that a 90-day 

permit issuance timeframe is 

appropriate since reviewing authorities 

need adequate time to determine if your 

request for coverage has all the relevant 

information and is complete. If not, the 

reviewing authority will need to request 

additional information. 

Moreover, we believe it is appropriate 

to add a completeness review time 

period for sources requesting coverage 

under a general permit, as one 

commenter suggested, to ensure that 

both sources and reviewing authorities 

act on the request for coverage under a 

general permit as expeditiously as 

possible. 

In regards to a 30-day public comment 

period for when a source requests to be 

covered under a general permit, some 

commenters expressed concerns about 

this provision arguing that this will 

significantly delay or disrupt the 

permitting process. Other commenters 

were more concerned about being 

informed about the sources planning to 

construct in their area. To address these 

comments, we have decided not to 

require a 30-day comment period for 

sources seeking coverage under a 

general permit. However, as stated 

previously, you and the reviewing 

authority must implement the other 

notification procedures. 

Regarding the requirement to post 

prominent notice of the letter approving 

your request for coverage under a 

general permit, we received two 

comments. One of these commenters 

believed that we should allow the 

general permit and letter to be 

maintained at the operator’s office 

closest to the emission source since, 

specifically, many oil and gas sites are 

unmanned. Another commenter 

believed that requiring an applicant to 

post information at the source about the 

fact that now a general permit will be 

applied to this source is duplicative of 

the public review and comment period 

and thus unnecessary. 

We continue to believe that posting, 

prominently, a copy of the letter 

granting your request for coverage under 

a general permit at the site where the 

source is locating is appropriate since 

this will facilitate any inspection by the 

reviewing authority. Moreover, this will 

allow the public to be informed about 

the sources locating in their area. The 

original copy of this letter of approval 

can be kept in a safe place, for example, 

a corporate office, especially for source 

locations that are unmanned. 

Accordingly, we are finalizing the 

general permit issuance procedures 

under 40 CFR 49.156(e) mainly as 

proposed. In addition, in the final rule 

we are including provisions for 

addressing when a general permit 

becomes invalid that mirror the 

corresponding site-specific permit 

provisions (see section IV.B.4.b of this 

preamble for more information on these 

provisions). 

Finally we want to add that if a 

general permit has been issued for your 

source category, you have the option to 

request coverage under that general 

permit 4 months after the effective date 

of the permit (i.e., 6 months after the 

general permit is published) or you can 

apply for a site-specific permit 

according to the provisions under 40 

CFR 49.154. However we want to clarify 

that since we are delaying the 

implementation date of this minor NSR 

program to true minor sources for 36 

months after the effective date of this 

rule (see section VII.C of this preamble 

for an explanation of these 

implementation provisions), if you elect 

not to seek coverage under the general 

permit available for your source 

category, you will have to apply for a 

site-specific permit prior to construction 

if that occurs prior to the 36 month 

implementation date. In other words, 

there will be no permitting grace period 

if a general permit exists for your source 

category prior to the 36-month period 

and you elect not to seek coverage under 

that general permit. 

D. Synthetic minor source permits 

Some sources have the potential to 

emit one or more pollutants in major 

source amounts, but have actual 

emissions that are below the major 

source thresholds. These sources are 

called ‘‘synthetic minor sources’’ and 

the term means a source that otherwise 

has the potential to emit regulated NSR 

pollutants in amounts that are at or 

above those for major sources in 40 CFR 

49.167, 40 CFR 52.21 or 40 CFR 71.2, as 

applicable, but has taken a restriction so 

that its potential to emit is less than 

such amounts for major sources. Such 

restrictions must be enforceable as a 

practical matter (as defined in 40 CFR 

49.152). 

The designation of synthetic minor 

source is allowed for both regulated 

NSR pollutants and HAPs and although 

you may choose to obtain such emission 

limitations at your own discretion, once 

you have accepted an enforceable 

emission limitation, you must comply 

with that limitation. This is necessary to 

ensure that you are legally prohibited 

from operating as a major source. In 

addition, if you apply for a synthetic 

minor source or synthetic minor HAP 

source, you must comply with the same 

public participation requirements and 

the same procedures for final permit 

issuance and administrative and judicial 

review found at 40 CFR 49.157 and 40 

CFR 49.159 respectively. 

In our proposal we explained that our 

1999 policy memo on synthetic minor 

sources in Indian country currently 

provides guidance on how sources that 

would otherwise be major sources under 

section 302 or part D of title I of the Act 

can become synthetic minor sources if 

their actual emissions remain below 50 

percent of the relevant major source PTE 

threshold and they comply with all 

other requirements of the policy 

memo.22 However, as the memo 

specifies, this PTE transition policy 

terminates when we adopt and 

implement a mechanism that you can 

use to limit your potential to emit or we 

explicitly approve a program providing 

such a mechanism. 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. 

Several commenters supported the 

proposal to allow synthetic minor 

source permits because this option has 

been previously available for sources 

located outside of Indian country. On 

the other hand, two commenters 

opposed the proposal to allow for 

synthetic minor source permits since 

they believe that synthetic minor source 

permits are not available outside of 

Indian country and therefore HAP 

sources would rush to Indian country to 

avoid MACT standards. 

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23Please note that if you propose to construct or 

modify a synthetic minor source, you are subject to 

the synthetic minor source provisions under 40 CFR 

49.158 and the preconstruction permitting 

requirements in 40 CFR 49.154 and 49.155, except 

for the completeness review and permit issuance 

timeline provisions. The permit completeness 

review and permit issuance timeline provisions that 

apply for sources seeking a synthetic minor permit 

are specified in 40 CFR 49.158(b). 

24EPA’s historic policy is ‘‘that facilities may 

switch to area source status [in this case through a 

synthetic minor permit] at any time until ‘the first 

compliance’ of the standard. The ‘‘first compliance 

date’’ is defined as the first date a source must 

comply with an emission limitation or other 

substantive regulatory requirement (i.e., leak 

detection and repair programs, work practice 

measures, housekeeping measures, etc * * *, but 

not a notice requirement) in the applicable MACT 

standard. Facilities that are major sources for HAPs 

on the ‘‘first compliance date’’ are required to 

comply permanently with the MACT standard to 

ensure that maximum achievable reductions in 

toxic emissions are achieved and maintained.’’ 

Memorandum from John S. Seitz, Director, Office of 

Air Quality Planning and Standards, U.S. EPA, 

‘‘Potential to Emit for MACT Standards—Guidance 

on Timing Issues’’ (May 16, 1995). EPA continues 

to believe that this policy best reflects the way 

Congress intended the MACT program to function. 

As a result, if you own or operate a major source 

subject to a MACT standard for which the initial 

compliance date has already passed, you cannot 

become a synthetic minor source for purposes of or 

otherwise avoid continuing to comply with, that 

particular MACT standard. 

Another commenter opined that the 

proposed synthetic minor rule will 

hinder some Tribes’ ability to develop 

or maintain their own sustainable title 

V major source permitting programs. 

This commenter argued that allowing 

for synthetic minor source permits in 

Indian country will decrease the 

number of major sources under this 

program thereby reducing the 

permitting fees collected and used by 

Tribes to run their title V permitting 

programs. One commenter also added 

that general permits should be allowed 

for synthetic minor sources. 

We agree with those commenters that 

would like us to allow synthetic minor 

source permits for both criteria 

pollutants and HAPs. We believe that 

allowing synthetic minor source permits 

could be beneficial to the environment 

by reducing the amount of pollution 

that could have been emitted to the air 

otherwise. In addition, this option has 

been available for sources outside of 

Indian country for both regulated NSR 

pollutants and HAP sources for many 

years. Thus, we disagree with the 

commenters who believed that we will 

be creating pollution havens in Indian 

country for HAP sources because HAP 

sources who obtain synthetic minor 

permits need to comply with emissions 

limits that are enforceable as a practical 

matter (as defined in 40 CFR 49.152) 

and with the applicable regulations 

under 40 CFR Part 63. 

We do not believe that synthetic 

minor source permits will significantly 

reduce the number of title V major 

sources in Indian country and hence the 

associated permit fees, since we do not 

anticipate many sources to change their 

current status to synthetic minor status 

once this rule is final. The PTE 

transition policy had already allowed 

sources in Indian country, until this FIP 

becomes final, to limit their potential to 

emit to avoid major source status for 

purposes of the title V program. 

However, if a Tribe is concerned that 

existing title V programs may be 

unsustainable after a certain number of 

sources change their existing title V 

permits to synthetic minor source 

permits, the Tribe will have to consider 

raising their title V fees as necessary to 

ensure that, as stated in section 

502(b)(3) of the Act, the fees collected 

under the title V program are ‘‘sufficient 

to cover all reasonable (direct and 

indirect) costs required to develop and 

administer the permit program 

requirements.’’ 

We also disagree with the commenter 

that would like us to allow the use of 

general permits for synthetic minor 

sources since these sources are major 

sources until they are approved to 

construct under a synthetic minor 

source permit. We believe that the size 

and amount of emissions from these 

sources warrants a case-by-case review 

of the source and their proposed 

emission limitations. Therefore, in the 

final rule, we are not allowing general 

permits for synthetic minor sources. 

In this final rule apart from specifying 

the circumstances under which a new 

source may obtain a synthetic minor 

source permit, we are also clarifying the 

possible mechanisms under which 

synthetic minor source permits have 

been issued to date and the 

requirements these sources may have to 

comply with after the effective date of 

this rule. 

Consequently, we are finalizing 

provisions under 40 CFR 49.158 that 

state that you may obtain a synthetic 

minor source permit under this program 

to establish a synthetic minor source for 

PSD, nonattainment major NSR and title 

V purposes and/or a synthetic minor 

HAP source for MACT standards and 

title V purposes. Any source that 

becomes a synthetic minor for NSR and 

title V purposes but has other applicable 

requirements or becomes a synthetic 

minor for NSR but is major for title V 

purposes, must also apply for a part 71 

title V permit. In addition, you, as the 

permit applicant, will have to submit a 

permit application pursuant to the 

provisions of 40 CFR 49.158(a) and 40 

CFR 49.154 and you will also be subject 

to the permit requirements at 40 CFR 

49.155 and 49.158 which include, 

among other things, case-by-case control 

technology review as well as 

monitoring, recordkeeping and 

reporting requirements.23

Hence, we are finalizing the synthetic 

minor source permit application 

procedures mainly as proposed, with 

the exception that we are requiring the 

reviewing authority to notify you of the 

permit application completeness 

determination in writing and thus 

eliminating the requirement that you, as 

the permit applicant, should contact the 

reviewing authority to find out the date 

of receipt of the application. The final 

synthetic minor source permit 

application requirements state that you 

must submit a permit application to the 

reviewing authority and within 60 days 

after receipt of an application, the 

reviewing authority will determine if it 

contains the information specified in 40 

CFR 49.158(a). If the reviewing 

authority determines that the 

application is not complete, it will 

request additional information from you 

as necessary to process the application. 

If the reviewing authority determines 

that the application is complete, it will 

notify you in writing. The reviewing 

authority’s completeness determination 

or request for additional information 

should be postmarked within 60 days of 

receipt of the permit application by the 

reviewing authority. 

We are also adding a provision, to be 

consistent with the site-specific and 

general permit provisions, to state that 

if you do not receive a request for 

additional information or a notice of 

complete application postmarked 

within 60 days of receipt of the permit 

application by the reviewing authority, 

your application would be deemed 

complete. The reviewing authority must 

provide an opportunity for public 

participation and public comment on 

the draft synthetic minor source permit 

as set out in 40 CFR 49.157. The final 

synthetic minor source permit will be 

issued and will be subject to 

administrative and judicial review as set 

out in 40 CFR 49.159. 

The provisions of the final rule 

address the various possible scenarios 

for synthetic minor source permits as 

follows: 

• If you own or operate an existing 

major source and you wish to obtain a 

synthetic minor source permit pursuant 

40 CFR 49.158 to establish a synthetic 

minor source and/or a synthetic minor 

HAP source,24 you may submit a 

synthetic minor source permit 

application on or after the effective date 

of the final rule, that is, on or after 

August 30, 2011. However, if your 

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25See previous footnote regarding the timing for 

obtaining potential to emit restrictions on sources 

seeking a synthetic minor HAP permit. 

26 You can only be an existing synthetic minor 

HAP source if your current PTE limits are federally 

enforceable. 40 CFR 63.2. As a result, a source 

located in Indian country can only be an existing 

synthetic minor HAP source if the limits on its PTE 

were established through a mechanism 

administered by or on behalf of EPA. 

27See also 63.42(b) for an additional option 

where the permitting authority has not adopted a 

112(g) program but has authority to make case-bycase MACT determinations. 

permit application for a synthetic minor 

source and/or synthetic minor HAP 

source pursuant to the FIPs for 

reservations in Idaho, Oregon and 

Washington has been determined 

complete prior to August 30, 2011, you 

do not need to apply for a synthetic 

minor source permit under this 

program. 

• If you wish to commence 

construction of a new synthetic minor 

source and/or a new synthetic minor 

HAP source,25 or a modification at an 

existing synthetic minor source and/or 

synthetic minor HAP source, on or after 

the effective date of the final rule (that 

is, on or after August 30, 2011), you 

must obtain a permit pursuant to 40 

CFR 49.158 prior to commencing 

construction. 

• If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established pursuant to the 

FIPs applicable to the Indian 

reservations in Idaho, Oregon and 

Washington or was established under an 

EPA-approved rule or permit program 

limiting potential to emit, you do not 

need to take any action under this 

program unless you propose a 

modification for your existing synthetic 

minor source and/or synthetic minor 

HAP source on or after the effective date 

of this rule, that is, on or after August 

30, 2011. For these modifications, you 

must obtain a permit pursuant to 40 

CFR 49.158 prior to commencing 

construction. 

• If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established under a permit 

with enforceable emissions limitations 

issued pursuant to the part 71 program, 

the reviewing authority has the 

discretion to require you to submit a 

permit application pursuant to 40 CFR 

49.158 for a synthetic minor source 

permit under this program within 1 year 

after the effective date of the final rule 

(that is, by September 4, 2012) or to 

require you to submit a permit 

application for a synthetic minor source 

permit under this program (pursuant to 

40 CFR 49.158) at the same time that 

you apply to renew your part 71 permit 

or to allow you to continue to maintain 

synthetic minor status through your part 

71 permit. If the reviewing authority 

requires you to obtain a synthetic minor 

source permit and/or a synthetic minor 

HAP source permit under this program 

(pursuant to 40 CFR 49.158), it also has 

the discretion to require any additional 

requirements, including control 

technology requirements, based on the 

specific circumstances of the source. 

• If your existing synthetic minor 

source and/or synthetic minor HAP 

source 26 was established through a 

mechanism other than those described 

in preceding paragraphs, you must 

submit an application for a synthetic 

minor source permit pursuant to 40 CFR 

49.158 within 1 year of the effective 

date of the final rule, that is, by 

September 4, 2012. The reviewing 

authority has the discretion to require 

any additional requirements, including 

control technology requirements, based 

on the specific circumstances of the 

source. 

If you submit your application and 

any requested additional information in 

the timelines indicated above, your 

source will continue to be considered a 

synthetic minor source or synthetic 

minor HAP source (as applicable) until 

your synthetic minor source permit 

under this program has been issued. 

Should you fail to submit your 

application and any requested 

additional information in the timelines 

indicated above, your source will no 

longer be considered a synthetic minor 

source or synthetic minor HAP source 

(as applicable) and will become subject 

to all requirements for major sources. 

E. Case-by-Case MACT Determinations 

Under Section 112(g) of the Act 

Section 112(g)(2)(B) of the Act 

provides that you may not construct or 

reconstruct a major source of HAPs 

unless the appropriate permitting 

authority determines that MACT for 

new sources will be met. If the 

Administrator has not established a 

MACT standard for the source category, 

the Act requires that MACT be 

determined on a case-by-case basis. 

The regulations implementing section 

112(g)(2)(B) are at 40 CFR 63.40 through 

63.44. The regulations at 40 CFR 

63.43(c) set forth several options for 

procedures that can be used to 

accomplish case-by-case MACT 

determinations. These options include 

using title V administrative procedures 

if a pre-construction or reconstruction 

(63.43(c)(1)) title V permit is required or 

can be obtained, applying for and 

obtaining a Notice of MACT Approval 

(63.43(c)(2)(i)) and ‘‘any other 

administrative procedures for 

preconstruction review and approval 

established by the permitting authority 

for a state or local jurisdiction which 

provide for public participation * * *’’ 

(63.43(c)(2)(ii)).27

Currently, no Tribes have an EPAapproved title V permitting program or 

have adopted any other program to 

implement section 112(g), although one 

Tribe has been delegated authority to 

assist us with implementation of the 

Federal part 71 operating permit 

program (i.e., the Federal program for 

issuing title V permits). Therefore, EPA 

expects that it will conduct case-by-case 

MACT determinations for sources in 

Indian country. 

Furthermore, while we can 

accomplish a section 112(g) case-by-case 

MACT determination through a part 71 

permit issued pre-construction or 

reconstruction or a Notice of MACT 

Approval, we believe that if your source 

is a major source only for HAPs and a 

minor source for regulated NSR 

pollutants, the minor NSR program is an 

appropriate ‘‘other administrative 

procedures’’ under 63.43(c)(2)(ii) for 

obtaining a case-by-case MACT 

determination. In addition, if your 

source is or could be minor for regulated 

NSR pollutants and is or could be major 

for HAPs, it would also be 

administratively convenient for you and 

for us, as the reviewing authority, to 

combine the construction permit 

process for both regulated NSR 

pollutants and case-by-case MACT 

determinations under the final minor 

NSR program, rather than to address 

regulated NSR pollutants under the 

minor NSR program and also go through 

the part 71 permit for preconstruction or 

reconstruction or Notice of MACT 

Approval process to address case-bycase MACT requirements. Note that 

even with this approach to 

preconstruction review, the source is 

still a major source for HAP under the 

MACT program (unless the source 

becomes a synthetic minor source) and 

thus you ultimately will have to obtain 

a part 71 operating permit for your 

major source of HAPs. 

Several commenters supported the 

proposal to provide for case-by-case 

MACT determinations in the minor NSR 

program because they stated this will be 

consistent with the practice of most 

state programs, it would be 

administratively convenient and 

regulation of HAPs is important to 

health. On the other hand, one 

commenter argued that if a source is 

major for HAPs, the source should not 

apply for a minor source permit because 

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applying for a case-by-case MACT 

determination under the minor NSR 

program would exempt the source from 

the MACT program. 

We agree with those commenters that 

supported the use of the minor NSR 

program as one of the mechanisms for 

obtaining a case-by-case MACT 

determination. As we stated previously, 

it is administratively convenient for us, 

as the reviewing authority and for you 

as the source owner to combine the 

preconstruction permit review process 

for both regulated NSR pollutants and 

case-by-case MACT determinations 

under this minor NSR program. If not, 

the minor NSR source that is also major 

for HAPs would have to apply for a 

minor NSR permit and a separate 

preconstruction or reconstruction part 

71 permit or Notice of MACT Approval 

for its case-by-case MACT 

determination of its HAP emissions. We 

want to clarify, however and as the 

opposing commenter suggested, that 

using the minor NSR program as the 

mechanism for a section 112(g) case-bycase MACT determination does not 

mean that a major source will escape the 

major source requirements under the 

MACT program. The source still needs 

to comply with the requirements of 40 

CFR 63.40 through 63.44 that apply to 

case-by-case MACT determinations 

using ‘‘other administrative 

procedures.’’ In addition, any source 

that is required to obtain a case-by-case 

MACT determination is a major source 

of HAPs and will have to obtain a part 

71 permit. 

In addition, we would like to clarify 

that for case-by-case MACT 

determinations under this minor NSR 

program, we will apply the public 

noticing requirements under 40 CFR 

49.157 and the administrative and 

judicial review procedures under 40 

CFR 49.159. See final 40 CFR 

49.153(a)(4) for the provisions related to 

section 112(g) case-by-case MACT 

determinations. 

F. Treatment of Existing Minor Sources 

Under the Minor NSR Program 

In the proposal preamble, we raised 

the question of whether it may be 

appropriate to also regulate existing 

minor sources in Indian country under 

this minor NSR program to help attain 

and maintain the NAAQS. At proposal, 

we discussed four options for the 

treatment of existing minor sources, as 

follows: 

• Option 1—No requirements for 

existing minor sources (until a source 

wishes to make a modification). 

• Option 2—Require existing 

synthetic minor sources to become 

subject to the minor NSR program 

requirements (including control 

technology review and other 

requirements as provided in section 

IV.A.5 through 9 of the proposal 

preamble) and to submit a permit 

application within 1 year after the 

effective date of the program. 

• Option 3—Require all existing 

minor sources to register within 1 year 

after the effective date of this program, 

but not be subject to the permitting 

requirements. 

• Option 4—Require all existing 

minor sources to be subject to the minor 

NSR program requirements (as provided 

in section IV.A.5 through 9 of the 

proposal preamble). 

Numerous commenters supported 

Option 1. These commenters believed 

that this option is consistent with state 

minor NSR programs, is the least 

burdensome on existing sources and the 

EPA and Tribes do not have the 

resources available to implement any of 

the other options. In addition, these 

commenters opined that regulation of 

existing sources is not needed to 

maintain the NAAQS. On the other 

hand, a few commenters opposed this 

option, mainly because they believed it 

would not address any air quality 

impacts resulting from existing sources. 

Regarding Option 2, a few 

commenters supported this option if it 

were to be used in combination with 

other options such as Option 1 or 3. 

However, two commenters specifically 

opposed Option 2 because they believe 

this option represents extremely 

onerous provisions for sources and 

reviewing authorities. 

Several commenters supported 

Option 3 because they believed it would 

only place a small administrative 

burden on existing sources to report 

their existing emissions while providing 

Tribes with important information about 

the existing emissions within their 

jurisdictions. Nevertheless, one 

commenter opposed this option because 

the commenter believed Option 3 will 

be unduly burdensome and overbroad 

and could significantly disadvantage 

minor sources already operating in 

Indian country. 

A few commenters supported Option 

4 by noting that states have generally 

regulated minor sources and thus that 

experience could aid the 

implementation of this option. Another 

commenter added that EPA could meet 

the requirements under Option 4 if we 

used a ‘‘sunset clause.’’ A ‘‘sunset 

clause’’ would allow sources some time 

to come into compliance and thereby 

avoid undue economic burden all at 

once. On the other hand, other 

commenters opposed this option 

because they generally believe it is 

extremely onerous for both sources and 

reviewing authorities. 

After considering the comments, we 

have decided to finalize Option 3 for 

true minor sources. For synthetic minor 

sources, we are finalizing provisions as 

stated in section IV.D of this final rule 

preamble, which include provisions that 

require certain sources to obtain permits 

under this program 1 year after the 

effective date of this rule. 

We are not finalizing our preferred 

option for ‘‘true’’ minor sources, Option 

1, because even though we agree that 

this option is consistent with state 

minor NSR programs and it is the least 

burdensome option for existing minor 

sources, we believe that collecting 

source inventory data for minor sources 

in Indian country is necessary to 

successfully implement the minor NSR 

program. In addition, these source 

inventory data are needed to assess the 

feasibility of an actual emissions based 

applicability test and to determine if we 

need to modify the minor NSR 

thresholds at a later time. We are also 

not finalizing Option 4 at this time 

because we believe that Option 4 would 

overwhelm limited EPA resources even 

if we were to use a ‘‘sunset clause.’’ 

Thus, under the program we are 

finalizing, we are creating a registration 

program for minor sources in Indian 

country. Under the minor source 

registration program, if you own or 

operate an existing true minor source in 

Indian country (as defined in 40 CFR 

49.152(d)) you must register your source 

with your reviewing authority in your 

area within 18 months after the effective 

date of this program, that is, by March 

1, 2013. This date has been modified 

from the 12 months we proposed to 

provide existing sources additional time 

to comply with these requirements. 

These provisions are discussed further 

in section VII.C of this preamble. If your 

true minor source commences 

construction in the time period between 

the effective date of this rule and 

September 2, 2014, you must register 

your source with the reviewing 

authority in your area within 90 days 

after the source begins operation. 

If construction or modification of your 

source commenced any time on or after 

September 2, 2014 and your source is 

subject to this rule, you must report 

your source’s actual emissions (if 

available) as part of your permit 

application and your permit application 

information will be used to fulfill all the 

other registration requirements 

described in 40 CFR 49.160(c)(2). 

This registration will be a one-time 

registration (not an annual registration) 

of your source’s estimated actual and 

allowable emissions as provided in 40 

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28 In general, only intrapollutant offsets are 

permitted (e.g., NOX for NOX). As part of the 

rulemaking to implement the NSR program for 

PM2.5, Appendix S and 40 CFR 51.165 were revised 

to allow interpollutant trading of emissions of PM2.5

and its precursors under certain conditions (73 FR 

28321, May 16, 2008). However, this aspect of the 

regulations is currently under reconsideration by 

EPA. See letter from Lisa P. Jackson, EPA 

Administrator, to Paul R. Cort, Earthjustice, April 

24, 2009. http://www.epa.gov/nsr/documents/ 

Earthjustice.pdf. 

CFR 49.160. For the Indian reservations 

subject to the registration requirements 

under 40 CFR 49.138 (‘‘Rule for the 

registration of air pollution sources and 

the reporting of emissions’’), the data 

being collected under that rule will be 

used to fulfill the requirements of this 

national registration program. 

V. Final Major NSR Program for 

Nonattainment Areas in Indian Country 

In this final action, we are 

establishing a major NSR program for 

new major sources and major 

modifications at existing major sources 

in nonattainment areas of Indian 

country at 40 CFR 49.166 through 

49.175. This program is designed to 

meet the requirements of part D of title 

I of the Act and, as proposed, sources 

subject to this program would be 

required to comply with the 

requirements of 40 CFR part 51, 

Appendix S (Appendix S). 

Appendix S is titled ‘‘Emission Offset 

Interpretative Ruling’’ and sets forth 

preconstruction review requirements for 

major sources and modifications 

locating in nonattainment areas where 

the state does not have an EPAapproved nonattainment major NSR 

program. In general, Appendix S is a 

transitional nonattainment major NSR 

program that covers the period after an 

area has been newly designated as 

nonattainment, up until the time that 

the state has amended its SIP’s 

nonattainment major NSR program, as 

needed, to address the new 

nonattainment area. The requirements 

under Appendix S are essentially the 

same as our requirements for state 

nonattainment major NSR programs at 

40 CFR 51.165. 

We are finalizing our proposal to 

apply Appendix S to nonattainment 

areas in Indian country for a number of 

reasons. Primarily, we believe it is 

appropriate to apply Appendix S 

provisions in Indian country for 

administrative convenience. 

Additionally, since Appendix S 

generally applies in nonattainment areas 

where there is no approved 

nonattainment major NSR program and 

since no Tribe currently has such a 

program, we believe that Appendix S 

should also apply in Indian country. 

Another reason for requiring sources 

subject to this program to comply with 

Appendix S requirements is that the 

EPA Regional Offices (which will be 

implementing the program until an 

EPA-approved implementation plan is 

in place) and owners/operators of 

several major sources in Indian country 

are familiar with the implementation 

and provisions of Appendix S. 

We considered and rejected the 

option of amending Appendix S to 

extend its application to Indian country, 

since we believe that sources in Indian 

country are more likely to look for 

regulations applicable to them under 

part 49, which is solely dedicated to 

regulations that apply in Indian country. 

We also considered drafting a parallel 

major NSR regulation to apply to 

sources in Indian country, but rejected 

this option since it would essentially repropose Appendix S provisions, which 

have been in effect outside of Indian 

country for many years. We wanted to 

avoid any potential confusion or 

possible perception that these parallel 

regulation requirements would be 

different than the Appendix S 

requirements. 

A. What are the requirements for major 

source permitting? 

Pursuant to paragraph IV of Appendix 

S, we have finalized that a reviewing 

authority may issue a permit for a new 

major source or a major modification 

locating in a nonattainment area, if it 

complies with the following conditions: 

1. The new major source or a major 

modification meets the LAER for that 

source using add-on controls or 

pollution prevention measures. 

2. The applicant certifies that all 

existing major sources owned or 

operated by the applicant (or any entity 

controlling, controlled by or under 

common control with the applicant) in 

the same state as the proposed source 

are in compliance with (or under a 

Federally-enforceable compliance 

schedule for) all applicable emission 

limitations and standards under the Act. 

3. Emission reductions (offsets) from 

existing sources in the area of the 

proposed source (whether or not under 

the same ownership) are obtained such 

that there will be reasonable progress 

towards attainment of the applicable 

NAAQS.28

4. The emission offsets provide a net 

air quality benefit in the affected area. 

5. The permit applicant conducts an 

analysis of alternative sites, sizes, 

production processes and 

environmental control techniques for 

such proposed source that demonstrates 

that the benefits of the proposed source 

significantly outweigh the 

environmental and social costs imposed 

as a result of its location, construction 

or modification. 

We received only a few comments 

regarding the use of Appendix S for 

Indian country. A couple of commenters 

did not explicitly support or oppose the 

use of Appendix S in Indian country, 

while one commenter suggested that 

Appendix S failed to address provisions 

under the CAA. The commenter pointed 

out that section 173(a)(5) of the Act 

provides for permits in a nonattainment 

area to be issued if ‘‘an analysis of 

alternative sites, sizes, production 

processes and environmental control 

techniques for such proposed source 

demonstrates that benefits of the 

proposed source significantly outweigh 

the environmental and social costs 

imposed as a result of its location, 

construction or modification.’’ However, 

the provisions under 40 CFR Part 51, 

Appendix S did not include such 

requirement even when this 

requirement is included in every 

approved SIP in the country. Therefore, 

by requiring only the provisions of 

Appendix S, the commenter believed 

that the proposed nonattainment major 

NSR program failed to satisfy the 

requirements of the Act. The commenter 

suggested that a requirement for an 

adequate alternate site assessment 

should be added to the proposed 

regulations as a complementary 

requirement to Appendix S. 

Upon further review of Appendix S, 

we agree that the section 173 alternate 

site provision was inadvertently missing 

from Appendix S regulations. Therefore, 

we have amended Appendix S to 

include the section 173 alternatives site 

provision to ensure that the provisions 

of the 1990 amendments, including the 

CAA section 173 alternative sites 

analysis provision, is codified in 

implementing regulations. See section 

V.F. of this preamble for more details on 

the Appendix S amendments. 

B. How is EPA addressing the lack of 

available offsets in Indian Country? 

Tribal representatives have repeatedly 

stated that requirements for emission 

offsets are problematic in Indian 

country because: (1) Many Tribes 

believe that transport is a major cause of 

pollution in Indian country, (2) Tribes 

generally do not have many existing 

sources within their area of Indian 

country from which offsets can be 

obtained, and (3) administrative barriers 

may hinder Tribal access to otherwise 

available offsets. Therefore, Tribal 

representatives have advocated for 

additional flexibility to address offsets, 

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29Tribal representatives have raised these and 

other concerns in discussions on implementation of 

the 8-hour ozone and PM2.5 standards and in 

comments on the 8-hour ozone implementation 

rule. For example, see the letter from Bill Grantham, 

National Tribal Environmental Council, to docket 

EPA–HQ–OAR–2003–0076, providing comments on 

the proposed 8-hour ozone implementation rule (66 

FR 32802). 

asides (which we expect would come 

from state offset pools or banks).29

We recognize the unique 

circumstances that Tribes face. Unlike 

states that have a SIP, a huge industrial 

base with several hundred existing 

sources and a broad range of measures 

to attain and maintain NAAQS, a Tribe 

generally has neither a TIP nor many 

existing sources from which to generate 

offsets. Because of these circumstances, 

we proposed two options to address the 

lack of availability of offsets for Tribes: 

(1) The Economic Development Zone 

(EDZ) option, and (2) the Appendix S, 

paragraph VI option. 

1. Economic Development Zone Option 

For this option we rely on section 

173(a)(1)(B) of the Act under which the 

Administrator, in consultation with the 

Secretary of Housing and Urban 

Development (HUD), may identify zones 

within nonattainment areas as EDZs 

such that sources subject to major NSR 

located in EDZs in Indian country 

would be exempt from the offset 

requirement in section 173(a)(1)(A) of 

the Act. 

Section 173(a)(1) of the Act provides 

for the issuance of permits to construct 

and operate a new or modified major 

stationary source if the reviewing 

authority determines that (A) ‘‘* * * 

sufficient offsetting emissions 

reductions have been obtained * * *’’ 

or (B) ‘‘in the case of a new or modified 

major stationary source which is located 

in a zone (within a nonattainment area) 

identified by the Administrator, in 

consultation with the Secretary of 

Housing and Urban Development, as a 

zone to which economic development 

should be targeted, that emissions of 

such pollutant resulting from the 

proposed new or modified major 

stationary source will not cause or 

contribute to emissions levels which 

exceed the allowance permitted for such 

pollutant for such area from new or 

modified major stationary sources under 

section 172(c).’’ 

Once the Administrator has identified 

an area that should be targeted for 

economic development in consultation 

with HUD, major sources that construct 

or modify within that area are relieved 

of the offset requirement if the state/ 

Tribe can demonstrate that the new 

permitted emissions are consistent with 

the achievement of reasonable further 

progress pursuant to section 172(c)(4) of 

the Act and will not interfere with 

attainment of the applicable NAAQS by 

the applicable attainment date. 

To be identified as an EDZ, HUD’s 

Initiative for Renewal Communities, 

Urban Empowerment Zones and Urban 

Enterprise Communities generally 

require that participating communities 

demonstrate pervasive poverty, high 

unemployment and general distress 

throughout the designated area. The 

United States Department of Agriculture 

requires similar eligibility criteria for 

participating communities located in 

rural areas. We believe that some areas 

of Indian country may meet these 

criteria and hence could qualify for this 

offset relief provision. 

As we proposed, the Administrator 

will consult with HUD only once to 

develop a general set of approval 

criteria, such that a consultation with 

HUD is not required every time a Tribe 

applies for its area of Indian country to 

be designated as an EDZ. Also as 

proposed, EPA intends to provide 

assistance as needed for a Tribe to 

complete an EDZ designation request. If 

the Administrator approves such a 

request from a Tribe, a new major 

source or a major modification locating 

in that EDZ would be exempt from the 

offset provisions. 

2. Appendix S, Paragraph VI Option 

Paragraph VI of Appendix S notes that 

in some cases the dates for attainment 

of the primary or secondary NAAQS 

may not have passed. In such cases, 

Appendix S provides that a new source 

locating in a nonattainment area may be 

exempt from the requirements of 

paragraph IV.A of Appendix S 

(discussed in section VI.A of this 

preamble), including the offset 

requirement, if the following conditions 

are met: 

• The new source complies with the 

applicable implementation plan 

emission limitations; 

• The new source will not interfere 

with the attainment date for a regulated 

NSR pollutant; and 

• We have determined that the 

preceding two conditions are satisfied 

and such determination is published in 

the Federal Register. 

It is important to note that this option 

only provides temporary offset relief 

because it will cease to be available 

once the attainment date for a pollutant 

has passed. 

Several commenters gave general 

support to waiving the requirement for 

offsets in Indian country, either through 

support of one or both of the proposed 

options or through advocating a general 

waiver on other grounds. For example, 

some commenters suggested that: 

• EPA should allow sources in Indian 

country to obtain offsets not just from 

the Indian country area itself, but from 

adjacent or upwind areas. Section 173(c) 

of the Act specifically provides that 

offsets may be used if they are from an 

area with an equal or higher 

nonattainment classification and if 

emissions from that area contribute to a 

violation of the NAAQS in the area 

needing the offsets. 

• EPA should allow Tribes to 

participate in state offset pools. With the 

approach of opening offset pools to 

Tribes, those Tribes wishing to develop 

major sources in nonattainment areas 

would still be able to do so, but would 

be treated like other sources needing to 

obtain an offset to maintain air quality. 

• EPA should implement a set-aside 

program in which Tribes receive a 

certain amount of offset emissions that 

would need to be made up by the other 

sources in the state. The commenter 

believed that this would be fair because 

most nonattainment problems in Indian 

country are caused by sources that are 

not under Tribal control. 

• EPA, the states, the Tribe and 

sources could collaborate to identify 

acceptable offsets outside of Indian 

country. 

• EPA should launch a concerted 

effort to improve the availability of 

offsets in all areas that need them (not 

just in Indian country) by encouraging 

the development of protocols to allow 

the creation of offsets from 

nontraditional sources, especially 

mobile and area/minor sources. 

• Tribes should be afforded the 

opportunity to request a permanent 

offset waiver based on language in the 

TAR. The TAR: ‘‘provide[s] an 

opportunity for Indian Tribes to assume 

responsibility for the development and 

implementation of CAA programs on 

lands within the exterior boundaries of 

their reservations or other areas within 

their jurisdiction.’’ Thus, the commenter 

believed that the waiver will allow the 

opportunity for Tribes to be able to 

develop and implement the 

nonattainment major NSR program. 

However, other commenters believe 

that offsetting of major NSR projects 

should be a requirement of the 

nonattainment major NSR program and 

no waivers should be given. These 

commenters opined that offset waivers 

would: (1) Likely be illegal under the 

Act, (2) cause air quality concerns, and 

(3) be unfair for sources located or 

locating outside of Indian country. For 

example, one of the commenters 

indicated that there is a significant 

shortage of offsets in virtually every 

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district in California, while another 

commenter added that the proposal 

would create an incentive for industrial 

sources to find Indian country a kind of 

refuge from regulatory requirements— 

resulting in a tilted playing field and 

exacerbating air quality and public 

health problems on reservations. Other 

commenters stated that: 

• Setting up an offset bank within an 

area of Indian country would be 

difficult because no source on Tribal 

land is currently subject to NSR and 

therefore there are currently no offsets 

from sources on Tribal land to be bought 

or sold. The commenter believed that 

with no available offsets, when NSR is 

enacted on Tribal lands, the price of the 

first offsets will be unaffordable for most 

if not all sources on Tribal lands. 

• There would be problems in 

allowing sources on Tribal lands access 

to the State offset banks. The commenter 

believed that states will be apprehensive 

to allow sources on Tribal lands access 

to state-established offset banks because 

states will not receive the tax revenue 

from offsets purchased by sources on 

Tribal lands as they do with sources 

within the state. 

• EPA, state and Tribal collaboration 

should not make it necessary for Tribes 

to go to the states to obtain offsets for 

economic development on the 

reservation since it denigrates the 

government-to-government relations. 

• Offsets should not be traded 

between Indian country and the states 

due to Tribal sovereignty issues and 

potential for confusion involving 

monitoring and tracking costs, as well as 

who receives tax revenue from the 

offsets. 

In regards to the EDZ option, 

supporting commenters believed that 

this option provides the flexibility for 

EPA not to require emissions offsets for 

a project where economic development 

and environmental protection are 

equally important concerns, while 

opposing commenters believed that the 

EDZ option cannot lawfully be applied 

in the present circumstances. According 

to one commenter, under section 

173(a)(1)(B) of the Act, the affected 

source must not cause or contribute to 

emissions levels ‘‘which exceed the 

allowance permitted for such pollutant 

for such area from new or modified 

stationary sources under section 

172(c).’’ The latter section, at section 

172(c)(4) of the Act, provides that the 

implementation plan shall identify and 

quantify the emissions, if any, that will 

be allowed to be used under section 

173(a)(1)(B) (the EDZ section) and shall 

‘‘demonstrate to the satisfaction of the 

Administrator that the emissions 

quantified for this purpose will be 

consistent with the achievement of 

reasonable further progress and will not 

interfere with attainment of the 

applicable national ambient air quality 

standard by the applicable attainment 

date.’’ Thus, the commenter believed 

that, in the absence of a TIP that 

quantifies the allowance and makes the 

required demonstration, this 

precondition for offset relief in EDZs 

would not generally be met within 

Indian country. 

Furthermore, another commenter 

believed that, by definition, the 

proposed rule does not apply where 

there is a TIP and thus EPA would need 

to look at the relevant SIP of the 

surrounding or adjacent state for the 

applicable ‘‘allowance of emissions’’ for 

EDZ sources. The commenter noted that 

in many cases there may be no such 

allowance and that even if the relevant 

State SIP includes an allowance, that 

allowance would almost certainly not 

have been calculated under the 

assumption that areas in Indian country 

could access the allowance. Under these 

circumstances, the commenter asserted, 

the affected state would be entitled 

under the Act to determine in the first 

instance what, if any, access to the 

allowance it wished to make available to 

sources in Indian country. The 

commenter concluded that as a matter 

of law the EDZ option is unavailable 

unless and until the relevant state 

creates and makes available an 

appropriate allowance. 

Another commenter also noted that as 

proposed, EPA would consult with the 

Secretary of Housing and Urban 

Development only once to develop a 

general set of approval criteria for EDZs. 

The commenter stated that this 

approach appears to conflict with the 

language of the Act, which requires 

consultation on each individual zone. 

In regards to the Appendix S, 

paragraph VI option, several 

commenters supported it because, as 

one of these commenters stated, this 

option provides equivalent 

environmental protection. The 

reviewing agency has to demonstrate 

that the proposed source will not 

interfere with the attainment date for 

the regulated NSR pollutant(s) in the 

area. 

However, a number of commenters 

had misgivings about the paragraph VI 

option, generally based on legal or 

environmental grounds. Two 

commenters stated that the paragraph VI 

option is inapplicable and unlawful 

because: (1) There is no applicable 

implementation plan in Indian country, 

so no source can ‘‘comply with 

applicable implementation plan 

emissions limitations’’ (in addition, one 

of these commenters conceded that if 

we interpret this to require the source to 

meet the SIP limits in the surrounding 

or adjacent state, this requirement could 

be met), (2) if there is no applicable 

implementation plan, it will be 

impossible to demonstrate that a source 

will not interfere with the attainment 

date for a nonattainment pollutant, (3) 

the Act requires that for every major 

source, the source must provide 

sufficient offsetting emissions 

reductions such that there is a reduction 

in emissions amounting to reasonable 

further progress, when considered 

together with emissions from other new 

and existing sources (see section 

173(a)(1)(A) of the Act) and (4) the 1990 

Amendments to the Act set out specific 

offset ratios which major sources must 

meet, such as 1.5 to 1 for Extreme Areas, 

1.3 to 1 for Severe Areas, etc. (section 

182 of the Act). These ratios may be met 

on an aggregate basis (i.e., individual 

sources may be exempt from offsets if 

the state makes an equivalency 

demonstration showing that the 

universe of new sources as a whole 

meets the applicable ratios). However, 

nothing in paragraph VI requires that 

equivalency demonstration to be made. 

Therefore, the commenter noted that 

paragraph VI on its face violates the 

1990 Amendments to the Act. 

Other commenters stated that the 

paragraph VI option is not acceptable 

because it would be difficult for some 

Tribes to meet the criteria. They stated 

that such a waiver does not balance 

legitimate development needs with 

environmental protection or that a major 

source could not interfere with 

attainment. One of these commenters 

also noted that these waivers would 

expire at attainment dates and added 

that these ‘‘expiration dates’’ established 

by states should not be imposed on 

Tribes. 

As we stated previously, we recognize 

the unique circumstances that Tribes 

face as well as the difficulty in obtaining 

offsets in certain parts of the country; 

however, we do not have the legal 

authority to waive the offset 

requirement under section 173 of the 

Act or under the TAR. 

Thus and to address the lack of offsets 

availability, both inside and outside of 

Indian country, we encourage states and 

Tribes to work together in the creation 

and use of offset banks for their lands 

since we agree that, where appropriate, 

Tribes can obtain offsets from 

surrounding areas. For example, Tribes 

may enter into a Memorandum of 

Understanding (MOU) with their 

neighboring states to allow Tribal access 

to offsets in the state offset bank and 

vice-versa if and when Tribes develop 

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their own offset banks. This MOU 

would contain provisions establishing 

the criteria for emissions reductions to 

be used as offsets such as real, 

quantifiable, surplus, permanent and 

enforceable. 

Furthermore, we are addressing the 

lack of availability of offsets in general. 

For example, in the final rule titled, 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5)’’ (73 FR 28340), we finalized 

provisions that allow for inter-pollutant 

and inter-precursor trading of offsets 

between direct PM2.5 emissions and its 

precursor emissions. We believe this is 

a first step in the process of addressing 

the shortage of offsets in the nation and 

we will continue to explore and 

implement, as one commenter 

suggested, the use of non-traditional 

sources of offsets such as offsets from 

mobile sources and area or minor 

sources. 

Regarding the offset waivers we 

proposed, we want to clarify that these 

waivers are currently available under 

the CAA and implementing regulations 

for both states and Tribes. The EDZ 

option is currently available under 

section 173(a)(1)(B) of the Act and the 

Appendix S paragraph VI option is 

currently available under 40 CFR part 

51 Appendix S. Therefore, we disagree 

with those commenters that believed 

that if the proposed offset waivers 

would only be available for Indian 

country, then states would be at an 

economic disadvantage and/or that we 

would be creating pollution havens in 

Indian country. 

Nevertheless, based on the opposing 

comments we received, including 

comments from the Tribes, regarding the 

implementation issues under the 

Appendix S Paragraph VI option, we are 

only allowing the EDZ option that is 

currently available under the statute for 

both Tribes and States as a potential 

option for offset waiver and we are not 

finalizing the Appendix S Paragraph VI 

option in this final rule. 

After reviewing all the comments 

received, we believe that the EDZ option 

as established by statute is available for 

offset relief as long as the area meets the 

statutory criteria in order to qualify. In 

other words, Tribes who develop TIPs 

might request EPA to establish their area 

as an EDZ so they can avail themselves 

of the offset provision under section 173 

of the Act. 

However, we disagree with the 

commenter who believed that, by 

definition, the proposed rule does not 

apply where there is a TIP and thus EPA 

would need to look at the relevant SIP 

of the surrounding or adjacent state for 

the applicable ‘‘allowance of emissions’’ 

for EDZ sources. We do not see why the 

commenter believed that a TIP is not an 

appropriate mechanism for the EDZ 

provision under section 173 since the 

TAR provides that Tribes will be treated 

in the same manner as states for 

virtually all CAA programs and states 

generally lack jurisdiction under the Act 

over facilities in Indian country. 

The ability of an area to qualify would 

be determined on a case-by-case basis, 

but criteria for including Tribes in the 

EDZs and for consultation with the 

Tribes will need to be developed in 

advance and in coordination with the 

Secretary of Housing and Urban 

Development. These criteria will ensure 

that Tribal and state input are included 

and that considerations are put in place 

to avoid industries coming into an area 

strictly for the offset relief. Therefore, 

we disagree with the commenter that 

believed that a general set of approval 

criteria will be in conflict with the 

language of the Act. 

We are not finalizing the Appendix S 

provision as an option for offset waiver, 

since the provision is only available 

temporarily and it will be challenging 

for EPA or the Tribe to demonstrate that 

the proposed source will not interfere 

with the attainment date. 

C. How do I meet the statewide 

compliance certification requirement of 

the Act and Appendix S? 

Pursuant to the statewide compliance 

certification requirements of section 

173(a)(3) of the Act, as reflected in 

Appendix S at Condition 2 of paragraph 

IV.A, an owner or operator of a 

proposed new or modified major 

stationary source must demonstrate that 

all other major sources under his/her 

control in the same state are in 

compliance or on a schedule for 

compliance with all emission 

limitations and standards under the Act. 

In the context of Indian country, we 

sought comment on whether this 

requirement should be expressed as an 

Indian country-wide compliance 

certification or remain a statewide 

certification. In other words, we 

requested comment on whether you 

should be required to certify that all 

your sources in the state where your 

proposed source is locating are in 

compliance or that all your sources in 

all of Indian country are in compliance. 

We received a variety of comments on 

this issue. Several commenters believed 

that the certification should be on a 

state-wide basis because: (1) It will not 

provide sources in Indian country with 

a competitive advantage over sources in 

non-Indian country, and (2) obtaining 

certification for all of Indian country 

would be very difficult since it is a vast 

area and sources under common control 

may be operated by different business 

units of the same parent company. On 

the other hand, one commenter believed 

that state-wide compliance certification 

would give EPA overreaching authority 

to facilities that are operating under SIPapproved programs within the state 

since other sources within the same 

state may not be within Indian country 

and thus regulated by the state rather 

than EPA. 

Regarding the Indian country-wide 

certification, one commenter supported 

it. The commenter believed this type of 

certification will benefit Tribes by 

allowing for the development of 

compliance databases, assisting Tribes 

with monitoring patterns of 

noncompliance, minimizing risk of 

noncompliance and building and 

enhancing consumer and market 

confidence. 

Other commenters provided 

comments supporting a national 

certification (not proposed) since they 

believed that expanding the requirement 

will ensure that the sources attempting 

to locate in Indian country will operate 

within regulatory parameters and 

several reservations exist in more than 

one state. Other commenters supported 

a certification for each applicable area of 

Indian country since these commenters 

believe that: (1) It would be too 

burdensome to require such certification 

across all of Indian country and (2) this 

is more consistent with treatment of 

individual Tribes as states under 

applicable EPA regulations. 

After consideration of comments, we 

are finalizing a state-wide compliance 

certification requirement consistent 

with section 173(a)(3) of the Act. We 

believe that a state-wide compliance 

certification: (1) Provides a broad 

enough look at the compliance history 

of the company, without overburdening 

the review process and (2) reflects a 

geographic approach to the certification 

rather than an approach based on the 

entity that is sovereign. An Indian 

country-wide certification would not 

have the proximity and geographic 

contiguity that a state-wide approach 

would have. 

D. What are the public participation 

requirements for this program? 

We believe that the public 

participation requirements of 40 CFR 

51.161 apply to permitting under 

Appendix S. Additionally, for the 

nonattainment major NSR program in 

Indian country, we are finalizing 

detailed public participation 

requirements at 40 CFR 49.171. As 

proposed, the final public participation 

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30Under the Act and the TAR (see 40 CFR part 

49, subpart A), eligible tribes may seek approval of 

Continued 

requirements for the nonattainment 

major NSR program are very similar to 

those finalized for the minor NSR 

program at 40 CFR 49.157. See section 

IV.B of this preamble for more 

information on these requirements and 

the comments we received. 

E. What are the provisions for final 

action on a permit, permit reopenings 

and administrative and judicial review 

procedures? 

In general, these provisions are based 

closely on selected provisions of part 

124, subpart A. The specific provisions 

are as follows: 

1. Final Action on a Permit 

This final rule requires that after 

making a decision to issue or deny your 

permit, the reviewing authority must 

notify you of the decision in writing 

and, if the permit is denied, provide the 

reasons for the denial. If the reviewing 

authority issues a final permit to you, it 

must make a copy of the permit 

available at any location where the draft 

permit was made available. In addition, 

the reviewing authority must provide 

adequate public notice of the final 

permit decision to ensure that the 

affected community, general public and 

any individuals who commented on the 

draft permit have reasonable access to 

the decision and supporting materials. 

See final 40 CFR 49.172(a). 

The reviewing authority’s final 

decision on your permit must be based 

on an administrative record and the 

final rule includes requirements on 

what must be in that record. For 

example, the administrative record must 

include the application and any 

supporting data furnished by the 

applicant and all comments received 

during the public comment period, 

including any extension or reopening. 

See final 40 CFR 49.172(b) and (c) for 

a listing of all the requirements. 

A few commenters largely supported 

the proposed provisions for providing 

notice of final permit actions. However, 

the commenters recommended that such 

notice be provided in the same manner 

that it was provided during the public 

comment on the draft permit. The 

commenters believed that numerous 

inconsistencies will occur if the agency 

uses subjective discretion based, as we 

proposed, ‘‘upon the circumstances of 

your permit.’’ 

Based on the comments received, we 

are finalizing slightly different final 

permit public notice requirements for 

the nonattainment major NSR program 

and the minor NSR program. We believe 

that for major sources in nonattainment 

areas making a copy of the permit 

available at all of the locations where 

the draft permit was made available will 

not be too burdensome for the reviewing 

authorities and will ensure that the 

affected community and the general 

public have reasonable access to the 

applicable information. These 

provisions are included in 40 CFR 

49.171 of this final rule. However, for 

minor sources, we continue to believe 

that depending on the circumstances of 

your permit, the reviewing authority 

may elect to provide notice directly to 

the individuals who commented on the 

draft permit and/or use any of the other 

methods of public notice discussed in 

section IV.B.4 of this preamble because 

providing the same public noticing 

procedures as those that were used 

during the comment period for the draft 

permit might be too burdensome for 

minor sources. These provisions are 

included in 40 CFR 49.157 of this final 

rule. 

Regarding the administrative record 

for a permit decision, we are finalizing 

these provisions as proposed and under 

40 CFR 49.172(b) and (c). The records, 

including any required applications for 

each draft and final permit or 

application for permit revision, must be 

kept by the reviewing authority for no 

less than 5 years. These provisions are 

the same as the ones for the minor NSR 

program and details of the comments 

received and the rationale behind 

finalizing these provisions are included 

in section IV.B.3 of this preamble. We 

did not receive any comments about 

these provisions specifically for the 

nonattainment major NSR program. 

2. Permit Reopenings 

Regarding the permit reopening 

provisions, the final rule requires that a 

permit may be reopened for cause by the 

reviewing authority on its own 

initiative, such as if it contains a 

material mistake or fails to assure 

compliance with permit requirements. 

See final 40 CFR 49.172(e). Details of 

the comments received and the rationale 

behind finalizing these provisions are 

included in section IV.B.5 of this 

preamble. We did not receive any 

comments about these provisions 

specifically for the nonattainment major 

NSR program. 

3. Administrative and Judicial Review 

Procedures 

At 40 CFR 49.172(d), we have 

finalized the provisions under which 

permit decisions for major 

nonattainment NSR permits may be 

appealed. Details of the comments 

received and the rationale behind 

finalizing these provisions are included 

in section IV.B.5 of this preamble. We 

did not receive any comments about 

these provisions specifically for the 

nonattainment major NSR program. 

F. How is EPA revising Appendix S? 

As we explain in more detail in 

section V.A. of this preamble, we are 

amending Appendix S to include the 

alternative sites analysis provisions of 

CAA section 173. Therefore, we are 

finalizing a change to Appendix S that 

will add a Condition 5 to the provisions 

under 40 CFR Appendix S Paragraph 

IV.A. This condition will state that the 

permit applicant shall conduct an 

analysis of alternative sites, sizes, 

production processes and 

environmental control techniques for 

such proposed source that demonstrates 

that the benefits of the proposed source 

significantly outweigh the 

environmental and social costs imposed 

as a result of its location, construction 

or modification. 

In addition and as proposed, we are 

finalizing a minor change to Appendix 

S that is related to the ‘‘emission 

limitations and standards of the Act.’’ 

Existing paragraph II.B of Appendix S 

requires the reviewing authority to 

review each proposed new major source 

and major modification to determine 

whether it will meet ‘‘any applicable 

NSPS in 40 CFR part 60 or any national 

emission standard for HAPs in 40 CFR 

part 61.’’ While we have incorporated 

this requirement into final 40 CFR 

49.169(a), we believe that it should be 

expanded to include the newer national 

emission standards for HAPs codified at 

40 CFR part 63 (commonly referred to 

as MACT standards). Accordingly, we 

are revising paragraph II.B of Appendix 

S to add these standards under the Act 

and to match the revised language of 

this paragraph with the final 40 CFR 

49.169(a). We did not receive any 

comments for this proposed provision. 

VI. Legal Basis, Statutory Authority and 

Jurisdictional Issues 

A. What is the basis for EPA’s authority 

to implement these NSR programs in 

Indian country? 

As we have described in section III of 

this preamble, in the absence of an EPAapproved program, we are authorized to 

develop a FIP to protect air quality by 

directly implementing provisions of the 

Act throughout Indian country. See, e.g., 

59 FR 43958–61 (August 25, 1994), 63 

FR 7262–64 (February 12, 1998) and 62 

FR 13750 (March 21, 1997). For the PSD 

program, no Tribe is currently 

administering an EPA-approved PSD 

program.30 Therefore, EPA has been 

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their own PSD programs for their reservations and/ 

or for other areas under their jurisdiction. 

31For example, the St. Regis Mohawk Tribe has 

in place an EPA-approved TIP that includes 

provisions for minor NSR and synthetic minor 

permitting (See http://www.srmtenv.org/pdf_files/ 

airtip.pdf). In addition, the Gila River Indian 

Community has developed a TIP that includes a 

minor NSR program (See http://www.epa.gov/ 

region9/air/actions/gila-river.html). 

32 ‘‘Indian country’’ is defined under 18 U.S.C. 

1151 as: (1) All land within the limits of any Indian 

reservation under the jurisdiction of the United 

States Government, notwithstanding the issuance of 

any patent and including rights-of-way running 

through the reservation, (2) all dependent Indian 

communities within the borders of the United 

States, whether within the original or subsequently 

acquired territory thereof and whether within or 

without the limits of a state, and (3) all Indian 

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running 

through the same. Under this definition, EPA treats 

as reservations trust lands validly set aside for the 

use of a tribe even if the trust lands have not been 

formally designated as a reservation. 

33For purposes of approving the Washington 

Department of Ecology (WDOE) operating permits 

program under 40 CFR part 70, EPA explicitly 

found that WDOE demonstrated that the 

Washington Indian (Puyallup) Land Claims 

Settlement Act, 25 U.S.C. 1773, gives explicit 

authority to state and local governments to 

administer their environmental laws on all nontrust 

lands within the 1873 Survey Area of the Puyallup 

Reservation in Tacoma, Washington. 

implementing a FIP and issuing PSD 

permits for major sources in attainment 

areas in Indian country. See 40 CFR 

52.21. 

For the nonattainment major NSR 

program and the minor NSR program in 

Indian country, no Tribes have been 

administering an EPA-approved 

nonattainment major NSR program and 

only a few Tribes have been 

administering EPA-approved minor 

NSR programs.31 In addition, there has 

been no FIP in place to implement these 

programs until now. Hence, there was a 

regulatory gap in Indian country. This 

final rule will allow us to address that 

gap and more fully implement the NSR 

program in Indian country. We are 

finalizing the minor NSR program at 40 

CFR 49.151 through 49.165 and the 

nonattainment major NSR program at 40 

CFR 49.166 through 49.175. 

It is important to recognize, however, 

that even though we are adopting this 

Federal program that applies in Indian 

country, the Tribes may still develop 

TIPs, similar to SIPs, to implement these 

programs. If a Tribe develops a TIP to 

implement NSR, the TIP, once it is 

approved by EPA, will replace the 

Federal program as the requirement for 

that area of Indian country and the Tribe 

will become the reviewing authority 

under its TIP. 

A few commenters remarked upon 

EPA’s analysis of its jurisdiction in 

Indian country (citing various court 

cases as well as legislative history). 

These commenters believed that in 

general Congress placed the primary 

responsibility of preventing air 

pollution on states and thus states have 

the responsibility to adopt or enforce 

any emission standards in Indian 

country. Some of these commenters also 

added that this FIP violates the CAA 

because the Administrator has failed to 

make a finding that any specific state or 

Tribe has failed to submit an 

implementation plan or that any 

specific implementation plan either fails 

to satisfy the minimum criteria under 

the Act or has been disapproved in 

whole or in part. In addition, the 

commenter believed that the Act only 

authorizes the adoption of a FIP on a 

jurisdiction-by-jurisdiction basis, not 

nationally. Two of these commenters 

also stated that even if the EPA adopts 

the proposed nationwide FIP, the FIP 

cannot supersede and EPA must 

acknowledge, the State of Oklahoma’s 

right to administer its state air quality 

programs in areas of Indian country 

within Oklahoma under the Federal 

Safe, Accountable, Flexible and 

Efficient Transportation Equity Act: A 

Legacy for Users (2005). We disagree 

with these commenters to the extent 

they believe EPA does not have 

authority under the Act to implement 

these programs in Indian country. 

EPA’s Authority To Implement the 

CAA in Indian Country. In the final rule 

titled, ‘‘Indian Tribes: Air Quality 

Planning and Management,’’ generally 

referred to as the ‘‘Tribal Authority 

Rule’’ or ‘‘TAR,’’ EPA explains that it 

intends to use its authority under the 

CAA ‘‘to protect air quality throughout 

Indian country’’ 32 by directly 

implementing the CAA’s requirements 

where Tribes have chosen not to 

develop or are not implementing an 

EPA-approved CAA program. 63 FR 

7254, February 12, 1998. The final TAR 

at 40 CFR 49.11 states that EPA would 

‘‘promulgate without unreasonable 

delay such FIP provisions as are 

necessary or appropriate to protect air 

quality’’ for these areas. The EPA is 

exercising its authority under sections 

301(a) and 301(d)(4) of the CAA and 40 

CFR 49.11(a) to promulgate FIPs in 

order to remedy an existing regulatory 

gap under the CAA with respect to 

Indian country. 

Although many facilities in these 

areas may have historically followed 

state and local government air quality 

programs, with rare exception, EPA has 

never approved those governments to 

exercise regulatory authority under the 

CAA in any area of Indian country. In 

addition, EPA has never approved a 

state or local government to implement 

a minor NSR or nonattainment major 

NSR program in Indian country.33 Since 

the CAA was amended in 1990, EPA has 

been clear in its approvals of state 

programs that the approved state 

program does not extend into Indian 

country. It is EPA’s position that, absent 

an explicit demonstration of authority 

by a state to administer a CAA program 

in Indian country and absent an explicit 

finding by EPA of such jurisdiction and 

explicit approval of the state in Indian 

country, state and local governments 

lack authority under the CAA over air 

pollution sources and the owners or 

operators of air pollution sources 

throughout Indian country. 

Because only a few Tribes have yet 

sought eligibility to administer a minor 

NSR program and no Tribe has yet 

sought eligibility for the nonattainment 

major NSR program, a gap for 

implementation of these programs 

currently exists in Indian country. 

Given the longstanding air quality 

concerns in some areas and the need to 

establish requirements in all areas to 

maintain CAA standards, EPA believes 

that these FIP provisions are appropriate 

to protect air quality in Indian country 

where no EPA-approved minor NSR or 

nonattainment major NSR program is in 

place. 

The rules published here are based on 

the same CAA authority as EPA has 

used elsewhere in rulemaking that have 

been affirmed by the courts. The EPA’s 

interpretation of its authority has been 

affirmed by the U.S. Court of Appeals 

for the District of Columbia Circuit in 

Arizona Public Service Co. v. EPA, 211 

F.3d 1280 (DC Cir. 2000), cert. denied 

121 S. Ct. 1600 (2001). In addition, 

EPA’s authority to issue operating 

permits to major sources located in 

Indian country under title V of the Act, 

pursuant to nationwide regulations at 40 

CFR part 71, was affirmed in State of 

Michigan v. EPA, 268 F.3d 1075 (DC Cir. 

2001). The EPA has used this same 

authority to issue a number of FIPs to 

address air pollution concerns on a 

regional basis and at specific facilities 

located in Indian country. See Federal 

Implementation Plans Under the Clean 

Air Act for Indian Reservation in Idaho, 

Oregon, Washington, 40 CFR part 49, 

subpart M (70 FR 18074, April 8, 2005) 

(upheld in Safe Air for Everyone v. EPA, 

2006 WL 3697684 (9th Cir. 2006)); FIP 

for Tri-Cities landfill, 40 CFR 49.22 (64 

FR 65664, November 23, 1999); Salt 

River Pima-Maricopa Indian 

Community, 40 CFR 49.22 (64 FR 

65663, November 23, 1999); FIP for the 

Astaris-Idaho LLC Facility (formerly 

owned by FMC Corporation) in the Fort 

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34As noted elsewhere, the TAR contains a 

process, pursuant to section 301(d) of the Act, for 

tribes to seek treatment in a similar manner as a 

state (TAS), for various provisions and programs of 

the Act. 

Hall PM–10 Nonattainment Area, 40 

CFR 49.10711 (65 FR 51412, August 23, 

2000) and FIP for Four Corners Power 

Plant, Navajo Nation, 40 CFR 49.23 (72 

FR 25698, May 7, 2007) (upheld in 

Arizona Public Service Co. v. EPA, 562 

F.3d 1116 (10th Cir. 2009)). 

Effects of State Law. The rules 

established by EPA here are in effect 

under the CAA. The EPA recognizes 

that in a few cases, other state or local 

governmental entities may have 

established air quality requirements that 

the commenters believe apply to 

activities in Indian country. However, 

unless those rules or requirements have 

been explicitly approved by EPA under 

the CAA to apply in Indian country, 

compliance with those other 

requirements does not relieve a source 

from complying with the applicable 

provision of this FIP. As EPA has stated 

elsewhere, states generally lack the 

authority to regulate air quality in 

Indian country. See Alaska v. Native 

Village of Venetie Tribal Government, 

522 U.S. 520, 527 fn.1 (1998) 

(‘‘Generally speaking, primary 

jurisdiction over land that is Indian 

country rests with the Federal 

Government and the Indian Tribe 

inhabiting it and not with the States.’’), 

California v. Cabazon Band of Mission 

Indians, 480 U.S. 202, 216 and n.18 

(1987); see also HRI v. EPA, 198 F.3d 

1224, 1242 (10th Cir. 2000); see also 

discussion in EPA’s final rule for the 

Federal operating permits program, 64 

FR 8251–8255, February 19, 1999. 

Furthermore, with regard to Indian 

reservations, EPA interprets the CAA as 

establishing unitary management of air 

resources and as a delegation of Federal 

authority to eligible Tribes to implement 

the CAA over all sources within 

reservations, including non-Indian 

sources on fee lands. Accordingly, even 

if a state could demonstrate authority 

over non-Indian sources on fee lands 

within an Indian reservation, EPA 

believes that the CAA generally 

provides the Agency the discretion to 

Federally implement the CAA over all 

Indian reservation sources in order to 

ensure an efficient and effective 

transition to Tribal CAA programs and 

to avoid the administratively 

undesirable checker-boarding of 

reservation air quality management 

based on land ownership. The EPA 

believes that Congress intended that 

EPA take a territorial view of 

implementing air programs within 

reservations. The EPA also believes that 

air quality planning for a checkerboarded reservation area would be more 

difficult and that it would be inefficient 

if a state were to exercise regulation 

over piecemeal tracts of land within 

such areas, possibly with similar Indian 

country sources being subject to 

different substantive requirements. The 

EPA’s approach provides for coherent 

and consistent environmental regulation 

within Indian country. 

Although EPA does not recognize 

state or local air regulations as being 

effective within Indian country for 

purposes of the CAA, absent an express 

approval by EPA of those regulations for 

an area of Indian country, this 

rulemaking does not address the 

validity of state and local law and 

regulations with respect to sources in 

Indian country or the authority of state 

and local agencies to regulate such 

sources, for purposes other than the 

Federal CAA. We are specifically not 

making a determination that these 

Federal CAA rules override or preempt 

any other laws that have been 

established outside the scope of the 

Federal CAA. The EPA does not, 

therefore, believe that any further 

preemption analysis suggested by the 

commenters is needed in these 

circumstances. As described above, EPA 

believes that its authority under the 

CAA to implement these programs in 

Indian country is clear and wellestablished and has been upheld by 

reviewing courts in similar 

circumstances. 

With regard to the comments relating 

to Indian country and the State of 

Oklahoma, EPA recognizes that the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act of 2005 

(SAFETEA) contains a provision 

(section 10211) relating to 

implementation of environmental 

regulatory programs under Federal 

environmental laws, including the CAA, 

in Indian country in Oklahoma. 

However, to date, neither the State of 

Oklahoma, nor any Indian Tribe in 

Oklahoma, has applied for EPA 

approval to administer either of the 

CAA programs included in this 

rulemaking for any area of Indian 

country. In the absence of an EPAapproved program, these FIPs will apply 

throughout Indian country, including 

Indian country in Oklahoma. In 

promulgating these FIPs, EPA is not 

acting on any potential request by the 

State of Oklahoma to administer any 

CAA or other regulatory program in 

Indian country, nor is EPA acting on 

any potential treatment-in-the-samemanner-as-a-state application for an 

environmental regulatory program by 

any Indian Tribe in Oklahoma. The EPA 

would address any such applications 

when necessary and on a case-by-case 

basis and in full consideration of the 

requirements of Section 10211 of 

SAFETEA. Section 10211 of the 

SAFETEA is thus not implicated in this 

rulemaking and is not a relevant 

consideration in EPA’s promulgation of 

the minor and nonattainment major 

NSR programs for Indian country, 

including Indian country in Oklahoma. 

B. How does a Tribe receive delegation 

to assist EPA with administration of the 

Federal minor and major NSR rules? 

With this action, we are finalizing the 

provisions on administrative delegation 

to Tribes as proposed. Our authority for 

such delegations is discussed in the 

following paragraphs. 

Under the procedures set forth in the 

TAR, Tribes may seek to demonstrate 

eligibility for approval of Tribal 

programs under the Act, including a 

Tribal NSR program, under Tribal law.34

The TAR allows Tribes to seek approval 

for such programs covering their 

reservations or other areas within their 

jurisdiction. However, we recognize that 

some Tribes may choose not to develop 

Tribal NSR programs for submission to 

EPA for approval under the TAR, but 

that these Tribes may still wish to assist 

us in implementing all or some portion 

of the Federal NSR program for their 

area of Indian country. In addition, 

although sections 110(o) and 301(d) of 

the Act and the TAR authorize us to 

review and approve TIPs, neither the 

Act nor the regulations provide that 

approval of Tribal programs under 

Tribal law is the sole mechanism 

available for Tribal agencies to take on 

permitting responsibilities. Accordingly, 

we are exercising our discretion to 

delegate administration of the Federal 

NSR program to interested and qualified 

Tribal agencies satisfying the 

requirements of final provisions at 40 

CFR 49.161 and 49.173. By assisting us 

with administration of the Federal 

program through delegation, Tribes may 

remain appropriately involved in 

implementation of an important air 

quality program and may develop their 

own capacity to manage such programs 

in the future should they choose to do 

so. Therefore final 40 CFR 49.161 and 

49.173 of the minor and major NSR 

rules, respectively, provide Tribal 

governments the option of seeking 

delegation from us of the administration 

of the Federal NSR program or aspects 

of the program, for their area of Indian 

country. 

We have well-established processes 

for delegating our Federal authority to 

states and/or Tribes for administering 

Federal rules under the Act, including 

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35The current provisions under 40 CFR 52.21(u) 

do not allow a tribe to request delegation of the PSD 

program. However, we are aware of this deficiency 

and we are currently working on a rulemaking that 

will amend this provision. 

36This information includes identifying the 

specific rules and provisions and the area of Indian 

country for which the delegation is requested. In 

addition, tribal agencies seeking delegation must 

provide a statement by the tribe’s legal counsel or 

equivalent official including a statement that the 

tribe is recognized by the Secretary of the Interior, 

a descriptive statement demonstrating that the tribe 

is currently carrying out substantial governmental 

duties and powers over a defined area (this 

statement should be consistent with the type of 

information described in 40 CFR 49.7(a)(2), which 

relates to the separate process by which tribes apply 

to be treated in a similar manner as states for 

various purposes under the Act), a description of 

the laws of the tribe that provide adequate authority 

to administer the federal rules and provisions for 

which the delegation is requested and a descriptive 

statement demonstrating that the tribal agency has, 

or will have, the technical capability and adequate 

resources to administer the federal rules and 

provisions for which the delegation is requested. 

37See 63 FR 7254–59. 

38The proposed minor and major NSR programs 

provide that the delegate tribal agency may require 

the applicant to provide a copy of the permit 

application directly to us. In addition, with our 

consent, the delegate tribal agency may submit to 

us a permit application summary form and any 

relevant portion of the permit application. 

conducting NSR under 40 CFR 

52.21(u),35 issuing Federal operating 

permits under 40 CFR 71.4(j) and 71.10 

and delegation to Tribes of elements of 

the Federal air rules for Indian country 

in the Pacific Northwest under 40 CFR 

49.122. The process we will follow to 

delegate the administration of the 

Federal NSR program to a Tribal agency 

is similar to the process we follow to 

delegate the administration of Federal 

programs under those provisions. 

This administrative delegation is to be 

distinguished from the TAS process 

under the TAR whereby Tribes seek 

approval to run programs under Tribal 

law. Tribes would not need to seek TAS 

under the TAR in order to request 

delegation of administration of aspects 

of these Federal NSR programs. Tribes 

would, however, need to provide the 

relevant application information 

described in sections 40 CFR 49.161 and 

49.173.36 In addition, program functions 

delegated under final 40 CFR 49.161 or 

49.173 remain part of the relevant FIP 

administered under Federal law. The 

delegate Tribal agency would simply 

assist EPA with administration of the 

program to the extent of the functions 

delegated. 

As described in the preamble to the 

TAR,37 it is our position that the TAS 

provision of the Act constitutes a 

statutory delegation of authority to 

eligible Tribes over their reservations. 

As described earlier, the TAR 

established procedures for our approval 

of Tribal eligibility applications to 

operate the programs of the Act under 

Tribal law. Where we approve a Tribal 

eligibility application and approve a 

Tribal NSR program, the approved Tribe 

will manage the program under Tribal 

law and the Tribal program becomes 

Federally enforceable. Among the 

required elements of a Tribal eligibility 

application under the TAR is a 

demonstration of the Tribe’s authority, 

including appropriate enforcement 

authority, to regulate air quality for the 

areas to be covered by the program. For 

air resources within the exterior 

boundaries of a Tribe’s reservation, the 

Tribe may rely on the Congressional 

delegation of Federal authority to 

operate approved Tribal programs. 

Tribes may also attempt to demonstrate 

authority to operate the programs of the 

Act over other areas outside of their 

reservations, generally including nonreservation areas of Indian country. 

Arizona Public Service Co. v. EPA, 211 

F. 3d 1280 (DC Cir. 2000), cert. den., 

532 U.S. 970 (2001). 

In contrast, the administrative 

delegation approach finalized in these 

rules provides for us to delegate 

administration of the Federal program 

operating under Federal law to 

interested Tribes that provide the 

information described in final 40 CFR 

49.161(b)(1) and 49.173(b)(1). Since this 

program operates throughout Indian 

country under Federal authority, Tribes 

will not need to demonstrate either 

Congressionally-delegated authority 

over air resources within the exterior 

boundaries of their reservations or 

authority of non-reservation areas of 

Indian country. Instead, Tribal agencies 

will assist us in implementing the 

Federal program by taking delegation of 

the administration of particular 

activities conducted under our authority 

in Indian country. Under final 40 CFR 

49.161(b)(1)(iii)(C) and 

49.173(b)(1)(iii)(C), Tribes will only 

need to show that their laws provide 

adequate capacity and authority to carry 

out the delegated activities. For 

example, where a Tribe seeks 

administrative delegation for permit 

issuing activities of the Federal 

program, the Tribe may, among other 

things, need to show it has in place an 

appropriate agency with legal authority 

to review applications and issue permits 

on behalf of the delegate Tribal 

government. For these administratively 

delegated programs, Federal program 

requirements will continue to be subject 

to enforcement by EPA, not the delegate 

Tribal agency, under Federal law. 

Administrative appeals of permitting 

decisions will also continue to be made 

directly to the EAB under our 

administrative procedures with any 

subsequent judicial review to be 

conducted in Federal court. In the final 

rules we make it clear that we will not 

delegate enforcement or appeal 

components of the program to Tribal 

agencies. 

When delegation is approved, a 

Partial Delegation of Administrative 

Authority Agreement between the 

Administrator and the Tribal agency 

will set forth the terms and conditions 

of the delegation and will also specify 

the rules and provisions that the Tribal 

agency is authorized to implement. 

Once the delegation becomes effective, 

the Tribal agency will have the 

authority under the Act, to the extent 

specified in the Agreement, to 

administer the rules in effect for the 

particular area of Indian country and to 

act on behalf of the Administrator. The 

Federal requirements administered by 

the delegate Tribal agency will be 

subject to enforcement by EPA under 

Federal law. 

When we have delegated 

administration of the portion of the 

Federal minor or major NSR program 

that includes receipt of permit 

application materials and preparation of 

draft permits, the delegate Tribal agency 

must provide us a copy of each permit 

application (including any application 

for permit revision) and each draft 

permit.38 In any such delegation, we 

retain the authority to object to the 

issuance of any permit that we 

determine not to be in compliance with 

the requirements under the program or 

other requirements pursuant to 

regulations under the Act. For any such 

objections, we will outline the reasons 

for the objection in writing and we will 

provide a copy of the written statement 

to the permit applicant. The delegate 

Tribal agency may not issue a permit if 

we object to its issuance in writing. The 

delegate Tribal agency may submit a 

revised draft permit to us in response to 

the objection. However, if it does not do 

so within 90 days, we will issue or deny 

the permit in accordance with the 

requirements of the Federal minor or 

major NSR program, as applicable. 

We did not receive any comments 

expressly supporting our delegation 

provisions. However, a number of 

commenters opined that when a Tribe 

has administrative delegation of the 

program, enforcement authority should 

be delegated to the Tribes as well. These 

comments are addressed in section VII.B 

of this preamble. 

Other commenters oppose delegation 

of the program to the Tribes. One of 

these commenters believed that 

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39Section 301(a)(1) of the Act provides that the 

Administrator is authorized to prescribe such 

regulations as are necessary to carry out his or her 

functions under the Act. This authority supports 

EPA’s finalization of 40 CFR 49.161 and 49.173 of 

the minor and major NSR rules, respectively, which 

provide for partial administrative delegations to 

tribal agencies. However, nothing in the final rules 

requires us to delegate administration of any aspect 

of the federal program to a tribal agency. 

delegation demonstrations will be 

approved by EPA based on their 

administrative completeness, rather 

than on their technical merit and thus 

recommends that any delegation be 

contingent upon an approved TIP. 

Another commenter maintained that 

only the TAS process should be used to 

delegate authority of environmental 

programs to Tribes to avoid 

jurisdictional conflicts between EPA, 

Tribes and the state (especially in 

Oklahoma because there have been, 

according to the commenter, significant 

problems there with Tribes providing 

adequate jurisdiction of lands they 

claim) and to avoid confusion for the 

regulated community. The commenter 

suggested that if the administrative 

delegation process is included in the 

final NSR program, it should include a 

Federal Register public notice and 

comment provision. Another 

commenter believed that because EPA 

has not made any jurisdictional 

determinations in connection with the 

proposed FIP, delegation of authority to 

Tribes to assist in administering the FIP 

violates the plain requirements of the 

Act. 

As described previously, EPA 

continues to believe that the CAA 

authorizes us to use the administrative 

delegation approach to assist EPA in 

carrying out implementation of our 

Federal program. See CAA section 

301(a).39 The EPA believes that the 

administrative delegation provisions 

provide additional flexibility for 

implementation of the Federal rules and 

establish an appropriate means for 

Tribal involvement in EPA’s Federal 

implementation of CAA requirements. 

As described above, delegation of the 

authority to assist EPA with 

administration of elements of the 

Federal NSR programs is a process that 

is distinct from approval of Tribal 

eligibility and Tribal programs under 

CAA section 301(d) and the TAR. To the 

extent the commenters are concerned 

that administrative delegation acts as an 

approval of Tribal authority, EPA 

reiterates that irrespective of any such 

delegation, the minor NSR and 

nonattainment major NSR programs 

established here will continue to 

operate under Federal authority subject 

to EPA appeal procedures before EPA’s 

Environmental Appeals Board and to 

enforcement solely by EPA. The 

administrative delegation provision 

simply allows EPA to delegate certain 

functions to qualified Tribes that may 

then assist EPA with administration of 

the programs. 

EPA also notes that because the minor 

and nonattainment major NSR programs 

will continue to operate under Federal 

authority (irrespective of administrative 

delegation of any functions to qualified 

Tribes), none of the jurisdictional issues 

raised in the comments should arise. 

Indeed, as described elsewhere, EPA’s 

well-established Federal authority to 

implement CAA programs in Indian 

country in the absence of an EPAapproved program should provide 

jurisdictional certainty to all sources 

covered by these programs. Similarly, 

issues of Tribal jurisdiction over 

covered sources should not arise since 

no showing or finding of such 

jurisdiction is needed for administration 

of the Federal programs. 

As noted in EPA’s proposal of the 

minor NSR and nonattainment major 

NSR rules, EPA also intends to consult 

with other Federal, state, Tribal or local 

governmental entities or other 

governmental agencies in the area, prior 

to finalizing a delegation agreement 

with a Tribal agency. Although the CAA 

does not require such consultations or 

any specific process, to approve 

administrative delegations, EPA 

believes that this approach provides an 

appropriate opportunity for such 

governmental entities to express views 

regarding the potential delegation 

agreement and will assist EPA in 

identifying any unanticipated issues. 

The EPA also notes that our 

establishment of criteria for the 

delegation provisions of the minor and 

nonattainment major NSR rules for 

Tribes seeking to assist EPA with 

administration of the Federal programs 

does not change the criteria EPA would 

evaluate in reviewing and acting upon 

Tribal applications for TAS under CAA 

section 301(d) and the TAR. CAA 

section 301(d) and the TAR at 40 CFR 

49.6 and 49.7 establish the criteria 

Tribes must demonstrate and the types 

of information to be included in Tribal 

applications, to obtain TAS eligibility to 

administer Tribal programs under Tribal 

law. 

Although the TAS and delegation 

criteria overlap in certain respects, they 

also contain significant differences, 

most notably in the required 

demonstration of authority. Tribes 

seeking TAS eligibility to administer 

approved Tribal regulatory programs 

under Tribal law must demonstrate their 

relevant authority, including 

appropriate enforcement authority, to 

regulate air quality in the areas to be 

covered by the program. See 40 CFR 

49.6(c) and 49.7(a)(3). By contrast, 

because the minor and nonattainment 

major NSR programs will, in all 

circumstances, operate under Federal 

authority, Tribes requesting to assist 

EPA through administrative delegation 

need not demonstrate Congressionallydelegated authority over air resources 

within the exterior boundaries of their 

reservations or authority over nonreservations areas of Indian country. 

Instead, such Tribes would only need to 

show that their laws provide adequate 

capacity and authority to carry out the 

delegated activities. These distinctions 

between the TAS and administrative 

delegation requirements are important 

and EPA reiterates that nothing in either 

process is intended to affect the criteria 

and requirements for the other. 

C. What happens to permits previously 

issued by states to sources in Indian 

country? 

In the past, sources in some areas of 

Indian country may have received 

permits from states. However, states 

generally lack jurisdiction under the Act 

over these facilities and generally were 

not authorized under the Act to issue 

such permits in Indian country. See 

sections III.B and VI.A. of this preamble 

for more information. Therefore, this 

final rulemaking provides a mechanism 

to change state permits issued to major 

sources of regulated NSR pollutants in 

nonattainment areas of Indian country 

to Federal major NSR permits. If you 

own or operate a major source with a 

state-issued nonattainment major NSR 

permit, you must apply to convert the 

permit to a Federal permit under this 

program within 1 year of the effective 

date of this program. See final 40 CFR 

49.168(b). We believe that transforming 

the state permits into Federal major NSR 

permits for major sources in Indian 

country is appropriate to protect air 

quality in Indian country. 

A couple of commenters believed that 

the permit reapplication process set out 

in the proposed 40 CFR 49.158(c)(1) and 

49.168(b) seems unnecessarily complex 

and thus these commenters argued that 

these permits should be transferred ‘‘en 

masse’’ from one agency to the other 

with a simple notification to the 

operator of the transfer or jurisdiction. 

One of these commenters added that if 

EPA feels that the ‘‘en masse’’ transfer 

methods are impracticable, then the 

source should be able to transfer the 

permit by submitting a transfer request 

(not a complete application) with a copy 

of the permit to both agencies, while the 

other commenter stressed that sources 

with state minor NSR permits should be 

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38782 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

40Most states have sought and obtained EPA 

approval to administer their own minor and 

nonattainment major NSR programs administered 

under state law. To the extent the commenters 

believe that states are pursuing enforcement of NSR 

programs, EPA notes that such enforcement is likely 

being taken pursuant to State law under such 

approved state programs. 

grandfathered into the Indian country 

program and not required to conduct 

minor NSR permitting. 

On the other hand, one commenter 

maintained that while previous state 

permit conditions may be appropriate to 

be included in the new Federal permit, 

this should not be automatic. The 

commenter also stated that governmentto-government consultation between 

EPA and the affected Tribe must take 

place during this process. Furthermore, 

two commenters pointed out that the 

proposal did not discuss what 

enforcement mechanism would be used 

if a source failed to convert a state 

permit to a Federal permit in the given 

time frame and thus one of these 

commenters recommended that EPA 

should consider using Tribal courts for 

this purpose since the infraction would 

occur on Tribal lands and within Tribal 

jurisdiction. 

After considering these comments, we 

believe that transforming state 

nonattainment major NSR permits into 

Federal nonattainment major NSR 

permits in Indian country is appropriate 

to protect air quality in Indian country. 

However, we do not believe that these 

permits should be transferred ‘‘en 

masse’’ from one agency to another or be 

automatically transferred because we 

need to determine if the permit 

complies with the applicable 

requirements under the NSR program. If 

it does not, a new permit with 

appropriate requirements would have to 

be public noticed and issued. If a source 

fails to obtain a required Federal permit 

by the established timeline and/or does 

not meet the applicable requirements 

under this rule, it may be subject to 

potential enforcement action. We also 

believe that since any failure of a source 

to convert a state permit into a Federal 

permit would be a violation of this rule, 

the violation is of the Federal 

requirement and thus administratively 

enforceable by EPA and in Federal 

court, not Tribal court. Because these 

programs are operated under Federal 

authority, there is no finding (and no 

need for a finding) of Tribal jurisdiction. 

VII. Implementation Issues 

A. Are Tribes allowed to collect fees for 

NSR permitting? 

Many Tribal commenters suggested 

that the NSR program should include a 

mechanism that allows Tribes or the 

EPA to collect fees to offset the costs of 

the program, especially when a Tribe 

has been given delegation of the 

program. Two of these commenters 

pointed out that Tribes that do accept 

delegation of the program will need 

resources, such as funds to train and 

support personnel who will be 

reviewing and commenting on the 

permitting applications and funds for 

providing technical assistance to 

businesses regarding compliance issues. 

Some of these commenters also 

indicated that EPA should provide 

funding for Tribal implementation of 

the NSR program, for example, through 

cooperative agreements and grants. 

The Agency is aware of and 

concerned about the resource needs of 

the rule, but the CAA does not give the 

Agency explicit authority to charge 

permit fees for pre-construction 

permitting. However, under a delegation 

agreement, EPA and the delegated Tribe 

could, as appropriate, establish 

mechanisms to fund the work by Tribal 

staff, that may include Federal funding 

assistance through cooperative 

agreements and grants and/or user fees 

and charges established by the Tribe 

[under Tribal law] for the purpose of 

funding its administrative activities on 

behalf of EPA (See Federal 

Implementation Plans Under the Clean 

Air Act for Indian Reservations in 

Idaho, Oregon and Washington (70 FR 

18080)). In addition, Tribes that develop 

TIPs can charge for permits under their 

authority. Furthermore, the final rule 

includes a number of mechanisms to 

address concerns regarding the resource 

burden, including: Encouraging 

delegation of the program through 

trainings (face-to-face training sessions 

and through ITEP training) and 

developing and using general permits. 

B. Who retains enforcement authority in 

Indian country? 

Numerous Tribal commenters 

recommended that administrative 

delegation of the program to Tribes 

should include enforcement authority. 

Where they were specific, most of these 

commenters specified delegation of civil 

enforcement authority (including the 

ability to collect civil penalties to help 

support the program), but a number of 

commenters also favored delegation of 

criminal enforcement authority. In 

addition, commenters stated that by 

declining to administratively delegate 

enforcement (whether civil or criminal) 

of Federal permits to Tribes, EPA is 

acting inconsistently with other 

delegations which, in the commenters’ 

view, withhold only criminal 

enforcement, but include civil 

enforcement. Other commenters also 

added that Tribes should be allowed to 

negotiate the level of enforcement 

authority on a case-by-case basis. We 

disagree with these commenters. 

The EPA believes that these 

commenters mistake the distinction 

between approvals of Tribal programs 

under Tribal law provided for in the 

TAR and the administrative delegations 

at issue here. Where EPA approves an 

eligible Tribe for TAS under CAA 

section 301(d) and the TAR, EPA will 

continue to review the applicant Tribe’s 

authority, including its authority to 

enforce, in an appropriate Tribal forum, 

any approved Tribal program operated 

under Tribal law. In such 

circumstances, EPA has recognized that 

certain limitations on Tribal criminal 

authority should not constitute a bar to 

Tribal program approval and has 

determined to fill any gap in Tribal 

criminal authority by retaining primary 

criminal enforcement at the Federal 

level for all circumstances in which a 

Tribe is precluded from exercising such 

authority. See 40 CFR 49.7(a)(6), 49.8. In 

such situations EPA would, however, 

generally expect the applicant Tribe to 

demonstrate authority to pursue 

appropriate civil enforcement under 

Tribal law of any approved Tribal 

program. 

By contrast, any permits issued under 

the Federal NSR programs (even where 

issued by a Tribe acting on EPA’s behalf 

pursuant to a delegation agreement) 

remain Federal in character and 

continue to be enforceable (whether 

civilly or criminally) in Federal court. 

EPA does not believe that it would be 

appropriate to delegate enforcement of a 

Federal permit in Federal court to an 

Indian Tribe assisting EPA with 

administration of the NSR program. 

Indeed, in similar circumstances EPA 

has consistently withheld enforcement 

in Federal court from any 

administratively delegated entity, 

whether a state or a Tribe. For instance, 

under certain other CAA programs (e.g., 

EPA’s major source operating permit 

program under 40 CFR part 70 and 

EPA’s PSD program under 40 CFR 

52.21) EPA may, in appropriate 

circumstances, delegate administration 

of elements of the program to nonFederal entities. However, while such 

entities may pursue enforcement in 

their own courts of parallel non-Federal 

air quality requirements, enforcement of 

the Federal permit in Federal court will 

always be retained and conducted by 

EPA.40 See also 40 CFR 49.122; 70 FR 

18074, 18080–81, April 8, 2005 

(discussing EPA’s similar approach to 

administrative delegation in the context 

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Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 38783 

41EPA’s historic policy is ‘‘that facilities may 

switch to area source status [in this case through a 

synthetic minor permit] at any time until ‘‘the first 

compliance’’ of the standard. The ‘‘first compliance 

date’’ is defined as the first date a source must 

comply with an emission limitation or other 

substantive regulatory requirement (i.e., leak 

detection and repair programs, work practice 

measures, housekeeping measures, etc * * *, but 

not a notice requirement) in the applicable MACT 

standard. Facilities that are major sources for HAPs 

on the ‘‘first compliance date’’ are required to 

comply permanently with the MACT standard to 

ensure that maximum achievable reductions in 

toxic emissions are achieved and maintained.’’ 

Memorandum from John S. Seitz, Director, Office of 

Air Quality Planning and Standards, U.S. EPA, 

‘‘Potential to Emit for MACT Standards—Guidance 

on Timing Issues’’ (May 16, 1995). EPA continues 

to believe that this policy best reflects the way 

Congress intended the MACT program to function. 

As a result, if you own or operate a major source 

subject to a MACT standard for which the initial 

compliance date has already passed, you cannot 

become a synthetic minor source for purposes of or 

otherwise avoid continuing to comply with that 

particular MACT standard. 

of FIPs for Indian reservations in the 

Pacific Northwest). 

The EPA’s approach to administrative 

delegation of the Federal NSR programs 

is thus consistent with other 

administrative delegation regulations 

and with EPA’s approach to approval of 

Tribal programs under the TAR. The 

EPA notes that Tribes interested in 

enforcing NSR permits issued in their 

areas may continue to seek TAS 

eligibility and program approval 

pursuant to established procedures 

under the TAR. Indeed, EPA expects 

that the approach to administrative 

delegation of elements of the Federal 

NSR program may benefit such Tribes 

by providing opportunities for Tribes 

that are building air quality programs to 

gain experience by assisting EPA with 

administration of the Federal rules 

without needing to first develop Tribal 

air programs under Tribal law. To the 

extent such Tribes do subsequently 

obtain TAS eligibility and NSR program 

approval, their approved Tribal 

programs under Tribal law would 

replace the relevant Federal rule. In 

addition, EPA recognizes that some 

Tribes may choose not to develop air 

programs under Tribal law, but may still 

want to participate in air quality 

management in their areas of Indian 

country. Administrative delegation of 

elements of the Federal rules may 

provide an appropriate opportunity for 

such Tribal involvement. 

Consequently, EPA believes the 

distinction between delegation of 

administration of aspects of the Federal 

NSR rules and approval of eligible 

Tribal programs under CAA section 

301(d) and the TAR is significant and 

warrants EPA’s retention of Federal 

enforcement of Federal NSR permits in 

Federal court. The EPA also believes 

that this approach does not create any 

inconsistency with its treatment of 

Tribal programs under the TAR or with 

EPA’s approach to administrative 

delegations of other CAA programs to 

Tribes and states. 

C. What is the implementation schedule 

for the final rules? 

At proposal we stated that all the 

provisions of these final rules will be 

effective 60 days from publication of the 

final rule based on the information we 

had at the time about the number of 

sources that might need to seek permits 

under the minor NSR program. In the 

proposal, we noted that the data on 

minor sources in Indian country were 

very limited, but we projected that 288 

new minor sources and 112 

modifications will be required to obtain 

permits during the first six years of 

implementation of the minor NSR 

program (71 FR at 48724). Since then, 

however, the Agency has obtained 

additional information about sources in 

Indian country and the Agency now 

estimates that several thousand new and 

modified minor sources will be created 

in Indian country during the first six 

years following issuance of this rule (see 

section VIII of this preamble for more 

information about the projected number 

of new and modified sources that might 

be subject to this program). 

Furthermore, a few commenters 

believed that neither EPA nor Tribal 

agencies had adequate resources to 

implement the NSR program without 

significant permitting delays. One 

commenter in particular was very 

concerned about the workload EPA 

Regions will have, especially those 

Regions that oversee large areas of 

Indian country, given EPA’s 

presupposition that few, if any, Tribes 

will be prepared to pursue delegation of 

the responsibility to implement these 

requirements. 

Therefore, upon review of our 

updated estimate of the projected 

number of covered sources and the 

comments we received pertaining to this 

issue, we agree that it would be very 

challenging for us, as the reviewing 

authority until a Tribe requests 

delegation or obtains approval of a TIP, 

to implement all elements of the final 

rules simultaneously beginning on the 

rules’ effective date. We currently 

experience resource constraints and 

these rules will create new workload for 

the Agency, especially for those EPA 

Regions where EPA, as the reviewing 

authority, would oversee a large number 

of Tribes. Consequently, to ensure 

timely permit issuance, we have 

decided to delay the implementation 

date of the minor NSR permitting 

requirement for true minor sources for 

a period of 36 months after this rule’s 

effective date, that is, September 2, 

2014. The implementation dates of other 

parts of the program depending on the 

type of source being permitted are as 

follows: 

Existing major sources. 

• If you wish to commence 

construction of a minor modification at 

an existing major source on or after the 

effective date of the final rule (that is, 

on or after August 30, 2011), you must 

obtain a permit pursuant to 40 CFR 

49.154 and 49.155 (or a general permit 

pursuant to 40 CFR 49.156, if 

applicable) prior to commencing 

construction. 

• If you wish to obtain a synthetic 

minor source permit pursuant to 40 CFR 

49.158 to establish a synthetic minor 

source and/or a synthetic minor HAP 

source at your existing major source, 

you may submit a synthetic minor 

source permit application on or after 

August 30, 2011. However, if your 

permit application for a synthetic minor 

source and/or synthetic minor HAP 

source pursuant to the FIPs for 

reservations in Idaho, Oregon and 

Washington has been determined 

complete prior to August 30, 2011 you 

do not need to apply for a synthetic 

minor source permit under this 

program. 

Synthetic minor sources. 

• If you wish to commence 

construction of a new synthetic minor 

source and/or a new synthetic minor 

HAP source 41 or a modification at an 

existing synthetic minor source and/or 

synthetic minor HAP source on or after 

the effective date of the final rule (that 

is, on or after August 30, 2011), you 

must obtain a permit pursuant to 40 

CFR 49.158 prior to commencing 

construction. 

• If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established pursuant to the 

FIPs applicable to the Indian 

reservations in Idaho, Oregon and 

Washington or was established under an 

EPA-approved rule or permit program 

limiting potential to emit, you do not 

need to take any action under this 

program unless you propose a 

modification for this existing synthetic 

minor source and/or synthetic minor 

HAP source, on or after the effective 

date of this rule, that is, on or after 

August 30, 2011. For these 

modifications, you need to obtain a 

permit pursuant to 40 CFR 49.158 prior 

to commencing construction. 

• If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established under a permit 

with enforceable emissions limitations 

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38784 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

42 ‘‘Lower Bound’’ costs in the Economic Impact 

Analysis (EIA) of this rule only include monitoring, 

recordkeeping and reporting costs computed under 

the conservative assumption that all facilities 

choose site-specific permitting (cost burden for 

development and implementation of general 

permits is unknown at this time). Under the ‘‘Upper 

Bound’’ cost estimates some facilities area assumed 

to be subject to BACT. 

issued pursuant to the part 71 program, 

the reviewing authority has the 

discretion to require you to submit a 

permit application for a synthetic minor 

source permit under this program 

within 1 year after the effective date of 

the final rule (that is, by September 4, 

2012, and pursuant to 40 CFR 49.158), 

to require you to submit a permit 

application for a synthetic minor source 

permit under this program (pursuant to 

40 CFR 49.158) at the same time that 

you apply to renew your part 71 permit 

or to allow you to continue to maintain 

synthetic minor status through your part 

71 permit. If the reviewing authority 

requires you to obtain a synthetic minor 

source permit and/or a synthetic minor 

HAP source permit under this program 

(pursuant to 40 CFR 49.158), it also has 

the discretion to require any additional 

requirements, including control 

technology requirements, based on the 

specific circumstances of the source. 

• If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established through a 

mechanism other than those described 

in the preceding paragraphs, you must 

submit an application pursuant to 

40 CFR 49.158 for a synthetic minor 

source permit within 1 year after the 

effective date of the final rule, that is, by 

September 4, 2012. The reviewing 

authority has the discretion to require 

any additional requirements, including 

control technology requirements, based 

on the specific circumstances of the 

source. 

True minor sources. 

• If you own or operate an existing 

true minor source in Indian country (as 

defined in 40 CFR 49.152(d)), you must 

register your source with your reviewing 

authority in your area within 18 months 

after the effective date of this program, 

that is, by March 1, 2013. If your true 

minor source commences construction 

in the time period after the effective 

date of this rule and September 2, 2014, 

you must also register your source with 

the reviewing authority in your area 

within 90 days after the source begins 

operation. You are exempt from this 

registration requirement if your source 

is subject to 40 CFR 49.138—‘‘Rule for 

the registration of air pollution sources 

and the reporting of emissions.’’ 

• If you wish to commence 

construction of a new true minor source 

or a modification at an existing true 

minor source that is subject to this 

program, you must obtain a permit 

pursuant to 40 CFR 49.154 and 49.155 

(or a general permit pursuant to 40 CFR 

49.156, if applicable) by the earlier of 

6 months after the general permit for a 

source category is published in the 

Federal Register or on or after 

36 months from the effective date of this 

rule, that is, September 2, 2014. The 

proposed new source or modification 

will be subject to the registration 

requirements of 40 CFR 49.160, except 

for sources that are subject to the 

registration requirements of 40 CFR 

49.138—‘‘Rule for the registration of air 

pollution sources and the reporting of 

emissions.’’ 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities or the principles 

set forth in the Executive Order. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. 

In addition, EPA prepared an analysis 

of the potential costs and impacts 

associated with this action. This rule is 

not considered economically significant 

because EPA estimates the total 

annualized costs of the rule to be 

substantially lower than $100 million. 

Given that during the first three years 

following the rule’s effective date, all 

new and modified sources are either 

required to register or request coverage 

under the general permit available for 

their source category (unless the source 

decides to apply for a site-specific 

permit at the time the source had to 

request coverage under that general 

permit), the EPA estimates lower 

bound 42 total annualized costs of the 

rule to be $4.6 million, including 

$2.3 million for industry and $2.3 

million for the Agency ($2008) while 

upper bound 42 total annualized costs of 

this rule are estimated to be 

approximately $4.7 million per year, 

including $2.4 million for industry and 

$2.3 million for the Agency ($2008). 

After the first 36 months, total 

annualized costs for true minor sources 

would increase, since all new and 

modified true minor sources will have 

to apply for a site-specific permit or 

request coverage under a general permit. 

However, EPA believes that costs for 

sources choosing to request coverage 

under a general permit would remain 

low, as would cost for the Agency. This 

analysis is contained in the EIA for this 

final rule. A copy of the analysis is 

available in the docket for this action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. 

The information collection 

requirements resulting from this final 

rule are associated with certain records 

and reports that are necessary for the 

Tribal agency (or the EPA Administrator 

in non-delegated areas), for example, to: 

(1) Confirm the compliance status of 

stationary sources, (2) identify any 

stationary sources not subject to the 

standards and identify stationary 

sources subject to the rules, and (3) 

ensure that the stationary source control 

requirements are being achieved. The 

information would be used by the EPA 

or Tribal enforcement personnel to (1) 

identify stationary sources subject to the 

rules, (2) ensure that appropriate control 

technology is being properly applied, 

and (3) ensure that the emission control 

devices are being properly operated and 

maintained on a continuous basis. 

Based on the reported information, the 

delegate Tribes (or the EPA 

Administrator in non-delegated areas) 

can decide which plants, records or 

processes should be inspected. 

The nonattainment major NSR rule 

would have little impact on existing 

major sources in Indian country because 

it would only affect such owners and 

operators if they propose a major 

modification and only one is expected 

during the first 6 years after 

promulgation (See the Economic Impact 

Analysis in the docket for this action for 

more information). In addition, the final 

rule would only result in an 

administrative change for new major 

sources in Indian country because, 

although the regulatory mechanism to 

issue permits is not yet available in the 

form of either a Federal nonattainment 

major NSR rule or a TIP, we are already 

required to implement the program in 

Indian country and have developed 

source-specific FIPs to do so. As a 

result, there would be no new or 

additional burden on industry. 

With regard to the minor source 

permitting rule (including new minor 

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Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 38785 

43We used data from financial databases to 

compute the share of companies in each sector that 

are owned by small businesses (based on the Small 

Business Administration small business size 

definitions at 13 CFR 121.201). We also examined 

the share of existing major and synthetic minor 

sources in Indian country that are owned by small 

businesses. 

sources, minor modifications at minor 

sources, minor modifications at major 

sources and new synthetic minor 

sources), it is estimated that 4,326 new 

or modified facilities will be affected for 

the first 3 years after promulgation of 

the rule. 

Minor sources will incur 

approximately 47,220 hours in 

monitoring, recordkeeping and 

reporting burden, incurring an 

estimated $549,402 ($2008) in burden 

during this 36 month period to complete 

registration or request coverage under a 

general permit. In addition, 32,970 

existing true and synthetic minor 

sources will incur a one-time burden of 

169,590 hours or an estimated 

$2.1 million, to complete registration for 

true minor sources and to secure new 

permits for existing synthetic minor 

sources. The Agency is estimated to 

incur 76,550 hours or $6.91 million 

($2008) in burden to administer the 

minor source program during the first 

3 years after rule promulgation. This 

Agency burden does not include costs 

associated with development and 

implementation of new general permits, 

as these costs are not known at this 

time. Burden is defined at 5 CFR 

1320.3(b). 

An agency may not conduct or 

sponsor and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of this final rule on small entities, 

‘‘small entity’’ is defined as: (1) A small 

business as defined by the Small 

Business Administration’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government or a city, county, town, 

school district or special district with a 

population of less than 50,000; and 

(3) a small organization that is any notfor-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The small entities potentially regulated 

by this final rule in Indian country are: 

• New and modified minor sources of 

regulated NSR pollutants; 

• Sources of regulated NSR pollutants 

choosing to accept enforceable emission 

limitations to avoid major source 

regulations (synthetic minors); 

• Sources of HAP choosing to accept 

enforceable emission limitations to 

avoid major source regulations 

(synthetic minors); 

• Minor modifications to major 

sources of regulated NSR pollutants; 

• New major sources of regulated 

NSR pollutants in nonattainment areas; 

and 

• Major modifications to major 

sources of regulated NSR pollutants in 

nonattainment areas. 

We have determined that the new 

major sources and major modifications 

at existing major sources in 

nonattainment areas will incur no 

incremental costs or will experience 

cost savings due to the final rule 

because the rule only changes the 

regulatory mechanism in which these 

sources can request a permit (it does not 

change the compliance requirements). 

The costs of the source-specific FIP (the 

alternative mechanism in the absence of 

this rule) would have been comparable 

to the estimated costs of complying with 

this rule. In addition, since the 

permitting process may be less 

uncertain under the final rule, new and 

modifying major sources could 

potentially experience cost savings 

compared to baseline conditions. 

Therefore, the screening assessment 

focused on costs for new and modified 

minor sources, minor modifications at 

major sources and synthetic minor 

sources. To analyze potential impacts to 

small companies owning such sources, 

we first estimated the number of new 

sources that would be sited in Indian 

country over the period of 2011 through 

2016. However, since data on minor 

sources in Indian country are generally 

very limited, we conducted an 

exhaustive search for information 

currently available from EPA databases, 

the Small Business Administration and 

EPA Regional Offices. We then collected 

data from the Economic Census (2002) 

on the number of establishments of each 

type in each state and allocated the 

establishments to Indian country based 

on Tribes’ share of state income. Then, 

we projected the number of new minor 

sources of each type that would be 

created in Indian country by applying 

the estimated growth rate for American 

Indian/Alaska Native (AI/AN) 

population in each state to the estimated 

baseline number of sources in Indian 

country in the state. Over the 6-year 

period after the effective date of the rule 

(2011 through 2016), we estimate that 

7,606 new minor sources will be created 

in Indian country. 

Based on our analysis,43, EPA also 

estimates that fewer than 20 percent of 

new minor sources in Indian country 

(20 percent of 7,606) will be owned by 

small businesses. Thus, we estimate that 

1,521 new minor source facilities will 

be created in Indian country by small 

businesses during the first 6 years after 

promulgation. Additionally, we project 

that 197 of the total estimated 984 minor 

modifications to existing minor sources 

during the period 2011 through 2016 

will occur at facilities owned by small 

businesses. Furthermore, we estimate 

that 10 synthetic minor sources owned 

by small businesses will be created 

during the period 2011 through 2016. 

Finally, we estimate that 2 of the 12 

major sources in Indian country that 

make a minor modification to their 

operations between 2011 and 2016 will 

be owned by small businesses. Table 2 

summarizes the estimated number of 

affected facilities and small businesses 

and table 3 disaggregates this 

information by source category (NAICS 

code). 

TABLE 2—PROJECTED NUMBER OF

AFFECTED SMALL BUSINESSES

[2011 through 2016] a

Source type 

Projected 

number of new 

and modified 

sources owned 

by small businesses 

New Minor Sources .......... 1,521 

Modified Minor Sources .... 197 

Synthetic Minor Sources .. 10 

Minor Modifications to 

Major Sources ............... 2 

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38786 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

44This small entity impact assessment does not 

reflect the final revisions to the rule’s provisions. 

At the time this analysis was conducted, we 

planned to delay the implementation date of the 

rule for true minor sources that might be subject to 

the minor NSR program for a period of 18 months 

from the rule’s effective date (60 days after the final 

rule is published). However, to address 

commenters’ concerns about EPA’s ability to 

implement this NSR permitting program in a timely 

manner and to provide additional time for EPA 

Regions to prepare for their duties as the Federal 

permitting authority, including the development of 

additional permitting tools, we have extended the 

implementation date of the rule for true minor 

sources to 36 months from the effective date of this 

final rule. In addition, sources eligible to seek 

coverage under a general permit will be subject to 

that general permit 4 months after the general 

permit is effective (6 months after the general 

permit is published in the Federal Register) unless 

the source decides to apply for a site-specific permit 

at the time the source had to request coverage under 

that general permit. Therefore, since we are 

reducing the permitting requirements during the 

initial 36-month period after the effective date of 

the rule, we expect the actual impacts to be lower 

than those reported here. 

TABLE 2—PROJECTED NUMBER OF AFFECTED SMALL BUSINESSES—Continued 

[2011 through 2016] a

Source type 

Projected 

number of new 

and modified 

sources owned 

by small businesses 

Total ........................... 1,730 

aBased on Year 2008 dollars. 

TABLE 3—SOURCE CATEGORIES FOR PROJECTED NUMBER OF AFFECTED SMALL BUSINESSES

NAICS Sector description New minor 

sources 

Modified minor 

sources 

Synthetic minor 

sources 

Minor modifications to major 

sources 

Total projected 

small businesses 

by sector 

324121 .......... Asphalt hot mix .................... 1 ............................ ............................ ............................ 1 

811121 .......... Auto body refinishing ........... 4 6 ............................ ............................ 10 

3116 .............. Beef Cattle Complex, 

Slaughter House and Meat 

Packing Plant.

1 ............................ ............................ ............................ 1 

3251 .............. Chemical preparation ........... 1 ............................ ............................ ............................ 1 

32711 ............ Clay and ceramics operations (kilns).4 1 ............................ ............................ 5 

327320 .......... Concrete batching plant ....... 1 ............................ ............................ ............................ 1 

211111 .......... Crude Petroleum and Natural Gas Extraction.1,402 150 3 2 1,557 

22111 ............ Electric power generation .... 1 ............................ ............................ ............................ 1 

3329 .............. Fabricated metal products ... ............................ 1 ............................ ............................ 1 

3323 .............. Fabricated structural metal .. ............................ 1 ............................ ............................ 1 

4471 .............. Gasoline station (storage 

tanks, refueling).

19 7 ............................ ............................ 26 

424510 .......... Grain Elevator ...................... 2 1 ............................ ............................ 3 

33311 ............ Machinery manufacturing ..... ............................ 3 ............................ ............................ 3 

221210 .......... Natural Gas Distribution ....... 1 1 ............................ ............................ 2 

21111 ............ Oil and gas production/operations.1 ............................ ............................ ............................ 1 

72112 ............ Other (natural gas-fired boilers) a.11 10 7 ............................ 28 

323110 .......... Printing operations (lithographic).3 1 ............................ ............................ 4 

54171 ............ Professional, Scientific and 

Technical Services.

3 1 ............................ ............................ 4 

212321 .......... Sand and Gravel Mining ...... 1 1 ............................ ............................ 2 

238990 .......... Sand and shot blasting operations.3 1 ............................ ............................ 4 

321113 .......... Sawmills ............................... 1 1 ............................ ............................ 2 

221320 .......... Sewage treatment facilities .. 1 ............................ ............................ ............................ 1 

562212 .......... Solid Waste Landfill ............. 1 ............................ ............................ ............................ 1 

332812 .......... Surface coating operations .. 5 3 ............................ ............................ 8 

Other (costs not estimated) b 54 8 ............................ ............................ 62 

Total ....... .............................................. 1,521 197 10 2 1,730 

aFor small business analysis, used NAICS code designated for casino hotels. However, the projected new and modified sources listed under 

‘‘other (natural gas-fired boilers)’’ include not only boilers at casino hotels, but also new sources listed as ‘‘boilers’’ and new Tribal government 

facilities assumed to have natural gas-fired boilers. b Includes source categories such as crematories, restaurants, car dealers and social assistance. 

To conduct our screening analysis of 

impacts 44 on small businesses, we 

compared the estimated costs of 

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Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 38787 

45This organization has since changed its name 

to the National Association of Clean Air Agencies 

(NACAA). 

compliance for each type of source in 

each sector with typical small business 

sales in each sector. 

Our analysis estimates that small 

businesses investing in new minor 

source facilities, minor modifications to 

existing minor sources, minor 

modifications to existing major sources 

and new synthetic minor sources over 

the period 2011 through 2016 will incur 

costs that are less than 1 percent of 

average small company sales revenues 

for most sectors, but small companies 

choosing to invest in new auto body 

refinishing plants, concrete batching 

plants, sawmills, solid waste landfills, 

sand and gravel mines and sand and 

shot blasting operations have the 

potential to incur costs between 1 

percent and 3 percent of sales under 

upper bound cost estimates. The EPA 

estimates that at most 20 new and 

modified sources would be owned by 

small businesses in these sectors (new 

auto body refinishing plants, concrete 

batching plants, sawmills, solid waste 

landfills, sand and gravel mines and 

sand and shot blasting operations) 

during the first 6 years following the 

effective date of the rule. Because this 

is a small number of facilities and 

because EPA believes that very few new 

sources will incur upper bound costs, 

this is considered an over-estimate of 

the potential small business impacts. 

Thus, EPA does not believe that the rule 

will impose significant economic 

impacts on a substantial number of 

small businesses owning new or 

modified minor sources. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, 

EPA has tried to reduce the impact of 

this rule on small entities. We are not 

requiring existing minor sources to 

obtain a permit once the rule is 

effective, but we are requiring them to 

register within 18 months after the 

rule’s effective date or 90 days after the 

source begins operation. In addition, we 

are delaying the implementation of the 

rule for new and modified minor 

sources to the earlier of 4 months after 

the effective date of a general permit (6 

months after the final permit is 

published) or 36 months after the rule’s 

effective date, that is, September 2, 

2014, to provide adequate time for the 

regulated entities and us, the reviewing 

authority, to prepare for the 

implementation of this rule. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for state, local 

and Tribal governments, in the aggregate 

or the private sector in any 1 year. 

The EPA cost estimates lower bound 

total annualized costs of the rule to be 

$4.6 million, including $2.3 million for 

industry and $2.3 million for the 

Agency ($2008) while upper bound total 

annualized costs of this rule were 

estimated to be approximately $4.7 

million per year, including $2.4 million 

for industry and $2.3 million for the 

Agency ($2008). After the first three 

years following the rule’s effective date, 

total annualized costs for true minor 

sources would increase since all new 

and modified true minor sources will 

have to apply for a site-specific permit 

or request coverage under a general 

permit. However, EPA believes that 

costs for sources choosing to request 

coverage under a general permit would 

remain low, as would cost for the 

Agency. Agency costs do not include 

the costs of developing general permits, 

as these costs are unknown at this time. 

Thus, this rule is not subject to the 

requirements of sections 202 or 205 of 

the Unfunded Mandates Reform Act 

(UMRA). 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule has no requirements applicable to 

small governments and as such does not 

impose obligations upon them. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule has no 

requirements applicable to states. Thus, 

Executive Order 13132 does not apply 

to this rule. 

In the spirit of Executive Order 13132 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicited comment on the 

proposed rule from state and local 

officials. To that end, we had two 

meetings with the STAPPA/ALAPCO 45

to present the draft preamble and rule. 

We also met with the National 

Federation of Independent Business and 

provided outreach material through 

EPA’s Small Business Ombudsman’s 

office to get input from the small 

businesses that might be affected by this 

rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

may not issue a regulation that has 

Tribal implications, that imposes 

substantial direct compliance costs and 

that is not required by statute, unless 

the Federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by Tribal 

governments or EPA consults with 

Tribal officials early in the process of 

developing the proposed regulation and 

develops a Tribal summary impact 

statement. 

The EPA has concluded that this 

action will have Tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

Tribal governments, nor preempt Tribal 

law. This action provides two 

preconstruction air permitting rules for 

stationary sources in Indian Country, 

but these rules will neither impose 

substantial direct compliance costs on 

Tribal governments nor preempt Tribal 

law because these rules will be 

implemented by EPA or a delegate 

Tribal agency that has requested to 

assist EPA with administration of the 

rules, until replaced by an EPAapproved Tribal implementation plan. 

Nonetheless, EPA conducted substantial 

outreach and consultation with Tribal 

officials and other Tribal representatives 

and has incorporated Tribal views, 

throughout the course of developing 

these rules. See section III.D of this final 

rule preamble for more details on our 

Tribal outreach and consultation efforts. 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

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38788 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

significant adverse effect on the supply, 

distribution or use of energy. The 

number of projected new sources in the 

energy sector due to this rule is a small 

share (about 1 percent) of the total 

number of energy sector facilities 

nationwide. Therefore, EPA does not 

believe that this action will have a 

significant effect on energy production. 

In addition, EPA’s cost analysis, 

presented in the Economic Impact 

Analysis (EIA), estimates the total 

annualized cost of the rule will be 

substantially less than the $100 million 

cost and/or benefits trigger identified in 

EO 12866 and thus this action is not 

considered an ‘‘economically significant 

regulatory action.’’ With the final rule 

not being a economically significant 

regulatory action, it is not considered a 

significant energy action. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations (which are persons living in 

Indian country) without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

Indeed, EPA believes that the two 

preconstruction air quality regulations 

in this FIP would provide regulatory 

certainty and fill a regulatory gap in 

Indian country and result in emissions 

reductions from sources complying with 

these regulations. Consequently, the 

regulations are expected to result in 

health benefits to persons living in 

Indian country, many of whom live in 

low-income and minority communities. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective 60 

days from the date of publication, i.e., 

on August 30, 2011. 

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit by August 30, 2011 

Any such judicial review is limited to 

only those objections that are raised 

with reasonable specificity in timely 

comments. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed and shall not 

postpone the effectiveness of such rule 

or action. Under section 307(b)(2) of the 

Act, the requirements of this final action 

may not be challenged later in civil or 

criminal proceedings brought by us to 

enforce these requirements. 

IX. Statutory Authority 

The statutory authority for this action 

is provided by sections 101, 110, 112, 

114, 116 and 301 of the Act as amended 

(42. U.S.C. 7401, 7410, 7412, 7414, 7416 

and 7601). 

List of Subjects 

40 CFR Part 49 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, Indians, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

40 CFR Part 51 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, 

Intergovernmental relations. 

Dated: June 10, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons cited in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as follows: 

PART 49—[AMENDED] 

■ 1. The authority citation for part 49 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart C—[AMENDED] 

■ 2. Add an undesignated center 

heading and §§ 49.151 through 49.161 to 

subpart C to read as follows: 

Federal Minor New Source Review 

Program in Indian Country 

* * * * * 

Sec. 

49.151 Program overview. 

49.152 Definitions. 

49.153 Applicability. 

49.154 Permit application requirements. 

49.155 Permit requirements. 

49.156 General permits. 

49.157 Public participation requirements. 

49.158 Synthetic minor source permits. 

49.159 Final permit issuance and 

administrative and judicial review. 

49.160 Registration program for minor 

sources in Indian country. 

49.161 Administration and delegation of 

the minor NSR program in Indian 

country. 

* * * * * 

§ 49.151 Program overview. 

(a) What constitutes the Federal minor 

new source review (NSR) program in 

Indian country? As set forth in this 

Federal Implementation Plan (FIP), the 

Federal minor NSR program in Indian 

country (or ‘‘program’’) consists of 

§§ 49.151 through 49.165. 

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Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 38789 

(b) What is the purpose of this 

program? This program has the 

following purposes: 

(1) It establishes a preconstruction 

permitting program for new and 

modified minor sources (minor sources) 

and minor modifications at major 

sources located in Indian country to 

meet the requirements of section 

110(a)(2)(C) of the Act. 

(2) It establishes a registration system 

that will allow the reviewing authority 

to develop and maintain a record of 

minor source emissions in Indian 

country. 

(3) It provides a mechanism for an 

otherwise major source to voluntarily 

accept restrictions on its potential to 

emit to become a synthetic minor 

source. This mechanism may also be 

used by an otherwise major source of 

HAPs to voluntarily accept restrictions 

on its potential to emit to become a 

synthetic minor HAP source. Such 

restrictions must be enforceable as a 

practical matter. 

(4) It provides an additional 

mechanism for case-by-case maximum 

achievable control technology (MACT) 

determinations for those major sources 

of HAPs subject to such determinations 

under section 112(g)(2) of the Act. 

(5) It sets forth the criteria and 

procedures that the reviewing authority 

(as defined in § 49.152(d)) will use to 

administer the program. 

(c) When and where does this 

program apply? 

(1) The provisions of this program 

apply in Indian country where there is 

no EPA-approved minor NSR program, 

according to the following 

implementation schedule: 

(i) Existing major sources. 

(A) If you wish to commence 

construction of a minor modification at 

an existing major source on or after 

August 30, 2011, you must obtain a 

permit pursuant to §§ 49.154 and 49.155 

(or a general permit pursuant to 

§ 49.156, if applicable) prior to 

commencing construction. 

(B) If you wish to obtain a synthetic 

minor source permit pursuant § 49.158 

to establish a synthetic minor source 

and/or a synthetic minor HAP source at 

your existing major source, you may 

submit a synthetic minor source permit 

application on or after August 30, 2011. 

However, if your permit application for 

a synthetic minor source and/or 

synthetic minor HAP source pursuant to 

the FIPs for reservations in Idaho, 

Oregon and Washington has been 

determined complete prior to August 

30, 2011, you do not need to apply for 

a synthetic minor source permit under 

this program. 

(ii) Synthetic minor sources. 

(A) If you wish to commence 

construction of a new synthetic minor 

source and/or a new synthetic minor 

HAP source or a modification at an 

existing synthetic minor source and/or 

synthetic minor HAP source on or after 

August 30, 2011, you must obtain a 

permit pursuant to § 49.158 prior to 

commencing construction. 

(B) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established pursuant to the 

FIPs applicable to the Indian 

reservations in Idaho, Oregon and 

Washington or was established under an 

EPA-approved rule or permit program 

limiting potential to emit, you do not 

need to take any action under this 

program unless you propose a 

modification for this existing synthetic 

minor source and/or synthetic minor 

HAP source, on or after the effective 

date of this rule, that is, on or after 

August 30, 2011. For these 

modifications, you need to obtain a 

permit pursuant to § 49.158 prior to 

commencing construction. 

(C) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established under a permit 

with enforceable emissions limitations 

issued pursuant to part 71 of this 

chapter, the reviewing authority has the 

discretion to require you to submit a 

permit application for a synthetic minor 

source permit under this program by 

September 4, 2012 and pursuant to 

§ 49.158, to require you to submit a 

permit application for a synthetic minor 

source permit under this program 

(pursuant to § 49.158) at the same time 

that you apply to renew your part 71 

permit or to allow you to continue to 

maintain synthetic minor status through 

your part 71 permit. If the reviewing 

authority requires you to obtain a 

synthetic minor source permit and/or 

synthetic minor HAP source permit 

under this program (pursuant to 

§ 49.158) it also has the discretion to 

require any additional requirements, 

including control technology 

requirements, based on the specific 

circumstances of the source. 

(D) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established through a 

mechanism other than those described 

in paragraphs (c)(1)(ii)(B) and (C) of this 

section, you must submit an application 

pursuant to § 49.158 for a synthetic 

minor source permit under this program 

by September 4, 2012. The reviewing 

authority has the discretion to require 

any additional requirements, including 

control technology requirements, based 

on the specific circumstances of the 

source. 

(iii) True minor sources. 

(A) If you own or operate an existing 

true minor source in Indian country (as 

defined in 40 CFR 49.152(d)), you must 

register your source with your reviewing 

authority in your area within 18 months 

after the effective date of this program, 

that is, by March 1, 2013. If your true 

minor source commences construction 

in the time period after the effective 

date of this rule and September 2, 2014, 

you must also register your source with 

the reviewing authority in your area 

within 90 days after the source begins 

operation. You are exempt from this 

registration requirement if your source 

is subject to § 49.138—‘‘Rule for the 

registration of air pollution sources and 

the reporting of emissions.’’ 

(B) If you wish to commence 

construction of a new true minor source 

or a modification at an existing true 

minor source that is subject to this 

program, you must obtain a permit 

pursuant to §§ 49.154 and 49.155 (or a 

general permit pursuant to § 49.156, if 

applicable) by the earlier of 6 months 

after the general permit for a source 

category is published in the Federal 

Register or on or after 36 months from 

the effective date of this rule, that is, 

September 2, 2014. The proposed new 

source or modification will also be 

subject to the registration requirements 

of § 49.160, except for sources that are 

subject to § 49.138. 

(2) The provisions of this program or 

portions of this program cease to apply 

in an area covered by an EPA-approved 

Tribal implementation plan on the date 

that our approval of that 

implementation plan becomes effective, 

provided that the implementation plan 

includes provisions that comply with 

the requirements of section 110(a)(2)(C) 

of the Act for the construction and 

modification of minor sources and 

minor modifications at major sources. 

Permits previously issued under this 

program will remain in effect and be 

enforceable as a practical matter until 

and unless the Tribe issues new permits 

to these sources based on the provisions 

of the EPA-approved Tribal 

implementation plan. 

(d) What general provisions apply 

under this program? The following 

general provisions apply to you as an 

owner/operator of a minor source: 

(1) If you commence construction of 

a new source or modification that is 

subject to this program after the 

applicable date specified in paragraph 

(c) of this section without applying for 

and receiving a permit pursuant to this 

program, you will be subject to 

appropriate enforcement action. 

(2) If you do not construct or operate 

your source or modification in 

accordance with the terms of your 

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38790 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

1Under this definition, EPA treats as reservations 

trust lands validly set aside for the use of a tribe 

even if the trust lands have not been formally 

designated as a reservation. 

minor NSR permit, you will be subject 

to appropriate enforcement action. 

(3) If you are subject to the 

registration requirements of this 

program, you must comply with those 

requirements. 

(4) Issuance of a permit does not 

relieve you of the responsibility to 

comply fully with applicable provisions 

of any EPA-approved implementation 

plan or FIP and any other requirements 

under applicable law. 

(5) Nothing in this program prevents 

a Tribe from administering a minor NSR 

permit program with different 

requirements in an approved Tribal 

Implementation Plan (TIP) as long as the 

TIP does not interfere with any 

applicable requirement of the Act. 

(e) What is the process for issuing 

permits under this program? For the 

reviewing authority to issue a final 

permit decision under this program 

(other than a general permit under 

§ 49.156 or a synthetic minor source 

permit under § 49.158), all the actions 

listed in paragraphs (e)(1) through (8) of 

this section need to be completed. The 

processes for issuing general permits 

and synthetic minor source permits are 

set out in § 49.156 and § 49.158, 

respectively. 

(1) You must submit a permit 

application that meets the requirements 

of § 49.154(a). 

(2) The reviewing authority 

determines completeness of the permit 

application as provided in § 49.154(b) 

within 45 days of receiving the 

application (60 days for minor 

modifications at major sources). 

(3) The reviewing authority 

determines the appropriate emission 

limitations and permit conditions for 

your affected emissions units under 

§ 49.154(c). 

(4) The reviewing authority may 

require you to submit an Air Quality 

Impact Analysis (AQIA) if it has reason 

to be concerned that the construction of 

your minor source or modification 

would cause or contribute to a NAAQS 

or PSD increment violation. 

(5) If an AQIA is submitted, the 

reviewing authority determines that the 

new or modified source will not cause 

or contribute to a NAAQS or PSD 

increment violation. 

(6) The reviewing authority develops 

a draft permit that meets the permit 

content requirements of § 49.155(a). 

(7) The reviewing authority provides 

for public participation, including a 30- 

day period for public comment, 

according to the requirements of 

§ 49.157. 

(8) The reviewing authority either 

issues a final permit that meets the 

requirements of § 49.155(a) or denies the 

permit and provides reasons for the 

denial, within 135 days (or within 1 

year for minor modifications at major 

sources) after the date the application is 

deemed complete and all additional 

information necessary to make an 

informed decision has been provided. 

§ 49.152 Definitions. 

(a) For sources of regulated NSR 

pollutants in nonattainment areas, the 

definitions in § 49.167 apply to the 

extent that they are used in this program 

(except for terms defined in paragraph 

(d) of this section). 

(b) For sources of regulated NSR 

pollutants in attainment or 

unclassifiable areas, the definitions in 

§ 52.21 of this chapter apply to the 

extent that they are used in this program 

(except for terms defined in paragraph 

(d) of this section). 

(c) For sources of HAP, the definitions 

in § 63.2 of this chapter apply to the 

extent that they are used in this program 

(except for terms defined in paragraph 

(d) of this section). 

(d) The following definitions also 

apply to this program: 

Affected emissions units means the 

following emissions units, as applicable: 

(1) For a proposed new minor source, 

all the emissions units. 

(2) For a proposed modification, the 

new, modified and replacement 

emissions units involved in the 

modification. 

Allowable emissions means 

‘‘allowable emissions’’ as defined in 

§ 52.21(b)(16) of this chapter, except 

that the allowable emissions for any 

emissions unit are calculated 

considering any emission limitations 

that are enforceable as a practical matter 

on the emissions unit’s potential to 

emit. 

Emission limitation means a 

requirement established by the 

reviewing authority that limits the 

quantity, rate or concentration of 

emissions of air pollutants on a 

continuous basis, including any 

requirement relating to the operation or 

maintenance of a source to assure 

continuous emissions reduction and any 

design standard, equipment standard, 

work practice, operational standard or 

pollution prevention technique. 

Enforceable as a practical matter 

means that an emission limitation or 

other standard is both legally and 

practicably enforceable as follows: 

(1) An emission limitation or other 

standard is legally enforceable if the 

reviewing authority has the right to 

enforce it. 

(2) Practical enforceability for an 

emission limitation or for other 

standards (design standards, equipment 

standards, work practices, operational 

standards, pollution prevention 

techniques) in a permit for a source is 

achieved if the permit’s provisions 

specify: 

(i) A limitation or standard and the 

emissions units or activities at the 

source subject to the limitation or 

standard; 

(ii) The time period for the limitation 

or standard (e.g., hourly, daily, monthly 

and/or annual limits such as rolling 

annual limits); and 

(iii) The method to determine 

compliance, including appropriate 

monitoring, recordkeeping, reporting 

and testing. 

(3) For rules and general permits that 

apply to categories of sources, practical 

enforceability additionally requires that 

the provisions: 

(i) Identify the types or categories of 

sources that are covered by the rule or 

general permit; 

(ii) Where coverage is optional, 

provide for notice to the reviewing 

authority of the source’s election to be 

covered by the rule or general permit; 

and 

(iii) Specify the enforcement 

consequences relevant to the rule or 

general permit. 

Environmental Appeals Board means 

the Board within the EPA described in 

§ 1.25(e) of this chapter. 

Indian country, as defined in 18 

U.S.C. 1151, means the following: 

(1) All land within the limits of any 

Indian reservation under the 

jurisdiction of the United States 

government, notwithstanding the 

issuance of any patent and including 

rights-of-way running through the 

reservation; 1

(2) All dependent Indian communities 

within the borders of the United States 

whether within the original or 

subsequently acquired territory thereof 

and whether within or without the 

limits of a state; and 

(3) All Indian allotments, the Indian 

titles to which have not been 

extinguished, including rights-of-way 

running through the same. 

Indian governing body means the 

governing body of any Tribe, band or 

group of Indians subject to the 

jurisdiction of the United States and 

recognized by the United States as 

possessing power of self-government. 

Minor modification at a major source 

means a modification at a major source 

that does not qualify as a major 

modification under § 49.167 or § 52.21 

of this chapter, as applicable. 

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Minor NSR threshold means any of 

the applicability cutoffs for this program 

listed in Table 1 of § 49.153. 

Minor source means, for purposes of 

this rule, a source, not including the 

exempt emissions units and activities 

listed in § 49.153(c), that has the 

potential to emit regulated NSR 

pollutants in amounts that are less than 

the major source thresholds in § 49.167 

or § 52.21 of this chapter, as applicable, 

but equal to or greater than the minor 

NSR thresholds in § 49.153. The 

potential to emit includes fugitive 

emissions, to the extent that they are 

quantifiable, only if the source belongs 

to one of the source categories listed in 

part 51, Appendix S, paragraph 

II.A.4(iii) or § 52.21(b)(1)(iii) of this 

chapter, as applicable. 

Modification means any physical or 

operational change at a source that 

would cause an increase in the 

allowable emissions of a minor source 

or an increase in the actual emissions 

(based on the applicable test under the 

major NSR program) of a major source 

for any regulated NSR pollutant or that 

would cause the emission of any 

regulated NSR pollutant not previously 

emitted. Allowable emissions of a minor 

source include fugitive emissions, to the 

extent that they are quantifiable, only if 

the source belongs to one of the source 

categories listed in part 51, Appendix S, 

paragraph II.A.4(iii) or § 52.21(b)(1)(iii) 

of this chapter, as applicable. The 

following exemptions apply: 

(1) A physical or operational change 

does not include routine maintenance, 

repair or replacement. 

(2) An increase in the hours of 

operation or in the production rate is 

not considered an operational change 

unless such change is prohibited under 

any permit condition that is enforceable 

as a practical matter. 

(3) A change in ownership at a 

stationary source. 

(4) The emissions units and activities 

listed in § 49.153(c). 

Potential to emit means the maximum 

capacity of a source to emit a pollutant 

under its physical and operational 

design. Any physical or operational 

limitation on the capacity of the source 

to emit a pollutant, including air 

pollution control equipment and 

restrictions on hours of operation or on 

the type or amount of material 

combusted, stored or processed, shall be 

treated as part of its design if the 

limitation or the effect it would have on 

emissions is enforceable as a practical 

matter. Secondary emissions, as defined 

at § 52.21(b)(18) of this chapter, do not 

count in determining the potential to 

emit of a source. 

Reviewing authority means the 

Administrator or may mean an Indian 

Tribe in cases where a Tribal agency is 

assisting EPA with administration of the 

program through a delegation. 

Synthetic minor HAP source means a 

source that otherwise has the potential 

to emit HAPs in amounts that are at or 

above those for major sources of HAP in 

§ 63.2 of this chapter, but that has taken 

a restriction so that its potential to emit 

is less than such amounts for major 

sources. Such restrictions must be 

enforceable as a practical matter. 

Synthetic minor source means a 

source that otherwise has the potential 

to emit regulated NSR pollutants in 

amounts that are at or above those for 

major sources in § 49.167, § 52.21 or 

§ 71.2 of this chapter, as applicable, but 

that has taken a restriction so that its 

potential to emit is less than such 

amounts for major sources. Such 

restrictions must be enforceable as a 

practical matter. 

True minor source means a source, 

not including the exempt emissions 

units and activities listed in § 49.153(c), 

that emits or has the potential to emit 

regulated NSR pollutants in amounts 

that are less than the major source 

thresholds in § 49.167 or § 52.21 of this 

chapter, as applicable, but equal to or 

greater than the minor NSR thresholds 

in § 49.153, without the need to take an 

enforceable restriction to reduce its 

potential to emit to such levels. That is, 

a true minor source is a minor source 

that is not a synthetic minor source. The 

potential to emit includes fugitive 

emissions, to the extent that they are 

quantifiable, only if the source belongs 

to one of the source categories listed in 

part 51, Appendix S, paragraph 

II.A.4(iii) or § 52.21(b)(1)(iii) of this 

chapter, as applicable. 

§ 49.153 Applicability. 

(a) Does this program apply to me? 

The requirements of this program apply 

to you as set out in paragraphs (a)(1) 

through (4) of this section. 

(1) New and modified sources. The 

applicability of the preconstruction 

review requirements of this program is 

determined individually for each 

regulated NSR pollutant that would be 

emitted by your new or modified 

source. For each such pollutant, 

determine applicability as set out in the 

relevant paragraph (a)(1)(i) or (ii) of this 

section. 

(i) New source. Use the following 

steps to determine applicability for each 

regulated NSR pollutant. 

(A) Step 1. Determine whether your 

proposed source’s potential to emit the 

pollutant that you are evaluating is 

subject to review under the applicable 

major NSR program (that is, under 

§ 52.21 of this chapter, under the 

Federal major NSR program for 

nonattainment areas in Indian country 

at §§ 49.166 through 49.175 or under a 

program approved by the Administrator 

pursuant to § 51.165 or § 51.166 of this 

chapter). If not, go to Step 2 (paragraph 

(a)(1)(i)(B) of this section). 

(B) Step 2. Determine whether your 

proposed source’s potential to emit the 

pollutant that you are evaluating, 

(including fugitive emissions, to the 

extent they are quantifiable, only if the 

source belongs to one of the source 

categories listed pursuant to section 

302(j) of the Act), is equal to or greater 

than the corresponding minor NSR 

threshold in Table 1 of this section. If 

it is, you are subject to the 

preconstruction requirements of this 

program for that pollutant. 

(ii) Modification at an existing source. 

Use the following steps to determine 

applicability for each regulated NSR 

pollutant. 

(A) Step 1. For the pollutant being 

evaluated, determine whether your 

proposed modification is subject to 

review under the applicable major NSR 

program. If the modification at your 

existing major source does not qualify as 

a major modification under that 

program based on the actual-toprojected-actual test, it is considered a 

minor modification and is subject to the 

minor NSR program requirements, if the 

net emissions increase from the actualto-projected-actual test is equal to or 

exceeds the minor NSR threshold listed 

in Table 1 of this section. For a 

modification at your existing minor 

source go to Step 2 (paragraph 

(a)(1)(ii)(B) of this section). 

(B) Step 2. Determine whether the 

increase in allowable emissions from 

the proposed modification (calculated 

using the procedures of paragraph (b) of 

this section) would be equal to or 

greater than the minor NSR threshold in 

Table 1 of this section for the pollutant 

that you are evaluating. If it is, you are 

subject to the preconstruction 

requirements of this program for that 

pollutant. If not, go to Step 3 (paragraph 

(a)(1)(ii)(C) of this section). 

(C) Step 3. If any of the emissions 

units affected by your proposed 

modification result in an increase in an 

annual allowable emissions limit for the 

pollutant that you are evaluating, the 

proposed modification is subject to 

paragraph (a)(2) of this section. If not, 

your proposed modification is not 

subject to this program. 

(2) Increase in an emissions unit’s 

annual allowable emissions limit. If you 

propose a physical or operational 

change at your minor or major source 

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that would increase an emissions unit’s 

allowable emissions of a regulated NSR 

pollutant above its existing annual 

allowable emissions limit, you must 

obtain a permit revision to reflect the 

increase in the limit prior to making the 

change. For a physical or operational 

change that is not otherwise subject to 

review under major NSR or under this 

program, such increase in the annual 

allowable emissions limit may be 

accomplished through an administrative 

permit revision as provided in 

§ 49.159(f). 

(3) Synthetic minor source permits. 

(i) If you own or operate an existing 

major source and you wish to obtain a 

synthetic minor source permit pursuant 

to § 49.158 to establish a synthetic 

minor source and/or a synthetic minor 

HAP source, you may submit a synthetic 

minor source permit application on or 

after August 30, 2011. However, if your 

permit application for a synthetic minor 

source and/or synthetic minor HAP 

source pursuant to the FIPs for 

reservations in Idaho, Oregon and 

Washington has been determined 

complete prior to August 30, 2011, you 

do not need to apply for a synthetic 

minor source permit under this 

program. 

(ii) If you wish to commence 

construction of a new synthetic minor 

source and/or a new synthetic minor 

HAP source or a modification at an 

existing synthetic minor source and/or 

synthetic minor HAP source, on or after 

August 30, 2011, you must obtain a 

permit pursuant to § 49.158 prior to 

commencing construction. 

(iii) If you own or operate a synthetic 

minor source or synthetic minor HAP 

source that was established prior to the 

effective date of this rule (that is, prior 

to August 30, 2011) pursuant to the FIPs 

applicable to the Indian reservations in 

Idaho, Oregon and Washington or under 

an EPA-approved rule or permit 

program limiting potential to emit, you 

do not need to take any action under 

this program unless you propose a 

modification for this existing synthetic 

minor source and/or synthetic minor 

HAP source, on or after the effective 

date of this rule, that is, on or after 

August 30, 2011. For these 

modifications, you need to obtain a 

permit pursuant to § 49.158 prior to 

commencing construction. 

(iv) If you own or operate a synthetic 

minor source or synthetic minor HAP 

source that was established prior to the 

effective date of this rule (that is, prior 

to August 30, 2011) through a permit 

with enforceable emissions limitations 

issued pursuant to the operating permit 

program in part 71 of this chapter, the 

reviewing authority has the discretion to 

require you to apply for a synthetic 

minor source permit under § 49.158 of 

this program by September 4, 2012 or at 

the time of part 71 permit renewal or 

allow you to maintain synthetic minor 

status through your part 71 permit. 

(v) For all other synthetic minor 

sources or synthetic minor HAP sources 

that obtained synthetic minor status or 

synthetic minor source permits through 

a mechanism other than those described 

in paragraphs (a)(3)(iii) and (iv) of this 

section, you must submit an application 

for a synthetic minor source permit 

under this program by September 4, 

2012 under § 49.158. 

(4) Case-by-case maximum achievable 

control technology (MACT) 

determinations. If you propose to 

construct or reconstruct a major source 

of HAPs such that you are subject to a 

case-by-case MACT determination 

under section 112(g)(2) of the Act, you 

may elect to have this determination 

approved under the provisions of this 

program (other options for such 

determinations include a title V permit 

action or a Notice of MACT Approval 

under § 63.43 of this chapter). If you 

elect this option, you still must comply 

with the requirements of § 63.43 of this 

chapter that apply to all case-by-case 

MACT determinations. 

(b) How do I determine the increase 

in allowable emissions from a physical 

or operational change at my source? 

Determine the resulting increase in 

allowable emissions in tons per year 

(tpy) of each regulated NSR pollutant 

after considering all increases from the 

change. A physical or operational 

change may involve one or more 

emissions units. The total increase in 

allowable emissions resulting from your 

proposed change, including fugitive 

emissions, to the extent they are 

quantifiable, only if your source belongs 

to one of the source categories listed 

pursuant to section 302(j) of the Act, 

would be the sum of the following: 

(1) For each new emissions unit that 

is to be added, the emissions increase 

would be the potential to emit of the 

emissions unit. 

(2) For each emissions unit with an 

allowable emissions limit that is to be 

changed or replaced, the emissions 

increase would be the allowable 

emissions of the emissions unit after the 

change or replacement minus the 

allowable emissions prior to the change 

or replacement. However, this may not 

be a negative value. If the allowable 

emissions of an emissions unit would be 

reduced as a result of the change or 

replacement, use zero in the calculation. 

(3) For each unpermitted emissions 

unit (a unit without any enforceable 

permit conditions) that is to be changed 

or replaced, the emissions increase is 

the allowable emissions of the 

emissions unit after the change or 

replacement minus the potential to emit 

prior to the change or replacement. 

However, this may not be a negative 

value. If an emissions unit’s post-change 

allowable emissions would be less than 

its pre-change potential to emit, use zero 

in the calculation. 

(c) What emissions units and 

activities are exempt from this program? 

This program does not apply to the 

following emissions units and activities 

at a source that are listed in paragraphs 

(c)(1) through (7) of this section. 

(1) Mobile sources. 

(2) Ventilating units for comfort that 

do not exhaust air pollutants into the 

ambient air from any manufacturing or 

other industrial processes 

(3) Noncommercial food preparation. 

(4) Consumer use of office equipment 

and products. 

(5) Janitorial services and consumer 

use of janitorial products. 

(6) Internal combustion engines used 

for landscaping purposes. 

(7) Bench scale laboratory activities, 

except for laboratory fume hoods or 

vents. 

TABLE 1 TO § 49.153—MINOR NSR THRESHOLDS a

Regulated NSR pollutant 

Minor NSR 

thresholds for 

nonattainment 

areas 

(tpy) 

Minor NSR 

thresholds for 

attainment areas 

(tpy) 

Carbon monoxide (CO) ........................................................................................................................... 5 10 

Nitrogen oxides (NOX) ............................................................................................................................. 5 b 10 

Sulfur dioxide (SO2) ................................................................................................................................. 5 10 

Volatile Organic Compounds (VOC) ....................................................................................................... 2 b 5 

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TABLE 1 TO § 49.153—MINOR NSR THRESHOLDS a—Continued 

Regulated NSR pollutant 

Minor NSR 

thresholds for 

nonattainment 

areas 

(tpy) 

Minor NSR 

thresholds for 

attainment areas 

(tpy) 

PM ............................................................................................................................................................ 5 10 

PM10 ......................................................................................................................................................... 1 5 

PM2.5 ........................................................................................................................................................ 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 landfill emissions (measured as nonmethane organic compounds) ................... NA 10 

a If part of a Tribe’s area of Indian country is designated as attainment and another part as nonattainment, the applicable threshold for a proposed source or modification is determined based on the designation where the source would be located. If the source straddles the two areas, 

the more stringent thresholds apply. b In extreme ozone nonattainment areas, section 182(e)(2) of the Act requires any change at a major source that results in any increase in 

emissions to be subject to major NSR permitting. In other words, any changes to existing major sources in extreme ozone nonattainment areas 

are subject to a ‘‘0’’ tpy threshold, but that threshold does not apply to minor sources. 

§ 49.154 Permit application requirements. 

This section applies to you if you are 

subject to this program under 

§ 49.153(a) for the construction of a new 

minor source, synthetic minor source or 

a modification at an existing source. 

(a) What information must my permit 

application contain? Paragraphs (a)(1) 

through (3) of this section govern the 

content of your application. 

(1) General provisions for permit 

applications. The following provisions 

apply to permit applications under this 

program: 

(i) The reviewing authority may 

develop permit application forms for 

your use. 

(ii) The permit application need not 

contain information on the exempt 

emissions units and activities listed in 

§ 49.153(c). 

(iii) The permit application for a 

modification need only include 

information on the affected emissions 

units as defined in § 49.152(d). 

(2) Required permit application 

content. Except as specified in 

paragraphs (a)(1)(ii) and (iii) of this 

section, you must include the 

information listed in paragraphs (a)(2)(i) 

through (ix) of this section in your 

application for a permit under this 

program. The reviewing authority may 

require additional information as 

needed to process the permit 

application. 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) A description of your source’s 

processes and products. 

(iii) A list of all affected emissions 

units (with the exception of the exempt 

emissions units and activities listed in 

§ 49.153(c)). 

(iv) For each new emissions unit that 

is listed, the potential to emit of each 

regulated NSR pollutant in tpy 

(including fugitive emissions, to the 

extent that they are quantifiable, if the 

emissions unit or source is in one of the 

source categories listed in part 51, 

Appendix S, paragraph II.A.4(iii) or 

§ 52.21(b)(1)(iii) of this chapter, as 

applicable), with supporting 

documentation. In your calculation of 

the potential to emit for an emissions 

unit, you must account for any proposed 

emission limitations. 

(v) For each modified emissions unit 

and replacement unit that is listed, the 

allowable emissions of each regulated 

NSR pollutant in tpy both before and 

after the modification (including 

fugitive emissions, to the extent that 

they are quantifiable, if the emissions 

unit or source belongs to one of the 

source categories listed in part 51, 

Appendix S, paragraph II.A.4(iii) or 

§ 52.21(b)(1)(iii) of this chapter, as 

applicable), with supporting 

documentation. For emissions units that 

do not have an allowable emissions 

limit prior to the modification, report 

the potential to emit. In your calculation 

of annual allowable emissions for an 

emissions unit after the modification, 

you must account for any proposed 

emission limitations. 

(vi) The following information to the 

extent it is needed to determine or 

regulate emissions: Fuels, fuel use, raw 

materials, production rates and 

operating schedules. 

(vii) Identification and description of 

any existing air pollution control 

equipment and compliance monitoring 

devices or activities. 

(viii) Any existing limitations on 

source operation affecting emissions or 

any work practice standards, where 

applicable, for all NSR regulated 

pollutants at the source. 

(ix) For each emission point 

associated with an affected emissions 

unit, provide stack or vent dimensions 

and flow information. 

(3) Optional permit application 

content. At your option, you may 

propose emission limitations for each 

affected emissions unit, which may 

include pollution prevention 

techniques, air pollution control 

devices, design standards, equipment 

standards, work practices, operational 

standards or a combination thereof. You 

may include an explanation of why you 

believe the proposed emission 

limitations to be appropriate. 

(b) How is my permit application 

determined to be complete? Paragraphs 

(b)(1) through (3) of this section govern 

the completeness review of your permit 

application. 

(1) An application for a permit under 

this program will be reviewed by the 

reviewing authority within 45 days of 

its receipt (60 days for minor 

modifications at major sources) to 

determine whether the application 

contains all the information necessary 

for processing the application. 

(2) If the reviewing authority 

determines that the application is not 

complete, it will request additional 

information from you as necessary to 

process the application. If the reviewing 

authority determines that the 

application is complete, it will notify 

you in writing. The reviewing 

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authority’s completeness determination 

or request for additional information 

should be postmarked within 45 days of 

receipt of the permit application by the 

reviewing authority (60 days for minor 

modifications at major sources). If you 

do not receive a request for additional 

information or a notice of complete 

application postmarked within 45 days 

of receipt of the permit application by 

the reviewing authority (60 days for 

minor modifications at major sources), 

your application will be deemed 

complete. 

(3) If, while processing an application 

that has been determined to be 

complete, the reviewing authority 

determines that additional information 

is necessary to evaluate or take final 

action on the application, it may request 

additional information from you and 

require your responses within a 

reasonable time period. 

(4) Any permit application will be 

granted or denied no later than 135 days 

(1 year for minor modifications at major 

sources) after the date the application is 

deemed complete and all additional 

information necessary to make an 

informed decision has been provided. 

(c) How will the reviewing authority 

determine the emission limitations that 

will be required in my permit? After 

determining that your application is 

complete, the reviewing authority will 

conduct a case-by-case control 

technology review to determine the 

appropriate level of control, if any, 

necessary to assure that NAAQS are 

achieved, as well as the corresponding 

emission limitations for the affected 

emissions units at your source. 

(1) In carrying out this case-by-case 

control technology review, the 

reviewing authority will consider the 

following factors: 

(i) Local air quality conditions. 

(ii) Typical control technology or 

other emissions reduction measures 

used by similar sources in surrounding 

areas. 

(iii) Anticipated economic growth in 

the area. 

(iv) Cost-effective emission reduction 

alternatives. 

(2) The reviewing authority must 

require a numerical limit on the 

quantity, rate or concentration of 

emissions for each regulated NSR 

pollutant emitted by each affected 

emissions unit at your source for which 

such a limit is technically and 

economically feasible. 

(3) The emission limitations required 

by the reviewing authority may consist 

of numerical limits on the quantity, rate 

or concentration of emissions; pollution 

prevention techniques; design 

standards; equipment standards; work 

practices; operational standards; 

requirements relating to the operation or 

maintenance of the source or any 

combination thereof. 

(4) The emission limitations required 

by the reviewing authority must assure 

that each affected emissions unit will 

comply with all requirements of parts 

60, 61 and 63 of this chapter as well as 

any FIPs or TIPs that apply to the unit. 

(5) The emission limitations required 

by the reviewing authority must not be 

affected in a manner by so much of a 

stack’s height as exceeds good 

engineering practice or by any other 

dispersion technique, except as 

provided in § 51.118(b) of this chapter. 

If the reviewing authority proposes to 

issue a permit to a source based on a 

good engineering practice stack height 

that exceeds the height allowed by 

§ 51.100(ii)(1) or (2) of this chapter, it 

must notify the public of the availability 

of the demonstration study and must 

provide opportunity for a public hearing 

according to the requirements of 

§ 49.157 for the draft permit. 

(d) When may the reviewing authority 

require an air quality impacts analysis 

(AQIA)? Paragraphs (d)(1) through (3) of 

this section govern AQIA requirements 

under this program. 

(1) If the reviewing authority has 

reason to be concerned that the 

construction of your minor source or 

modification would cause or contribute 

to a NAAQS or PSD increment 

violation, it may require you to conduct 

and submit an AQIA. 

(2) If required, you must conduct the 

AQIA using the dispersion models and 

procedures of part 51, Appendix W of 

this chapter. 

(3) If the AQIA reveals that 

construction of your source or 

modification would cause or contribute 

to a NAAQS or PSD increment 

violation, the reviewing authority must 

require you to reduce or mitigate such 

impacts before it can issue you a permit. 

§ 49.155 Permit requirements. 

This section applies to your permit if 

you are subject to this program under 

§ 49.153(a) for construction of a new 

minor source, synthetic minor source or 

a modification at an existing source. 

(a) What information must my permit 

include? Your permit must include the 

requirements in paragraphs (a)(1) 

through (7) of this section. 

(1) General requirements. The permit 

must include the following elements: 

(i) The effective date of the permit and 

the date by which you must commence 

construction in order for your permit to 

remain valid (i.e., 18 months after the 

permit effective date). 

(ii) The emissions units subject to the 

permit and their associated emission 

limitations. 

(iii) Monitoring, recordkeeping, 

reporting and testing requirements to 

assure compliance with the emission 

limitations. 

(2) Emission limitations. The permit 

must include the emission limitations 

determined by the reviewing authority 

under § 49.154(c) for each affected 

emissions unit. In addition, the permit 

must include an annual allowable 

emissions limit for each affected 

emissions unit and for each regulated 

NSR pollutant emitted by the unit if the 

unit is issued an enforceable emission 

limitation lower than the potential to 

emit of that unit. 

(3) Monitoring requirements. The 

permit must include monitoring 

requirements sufficient to assure 

compliance with the emission 

limitations and annual allowable 

emissions limits that apply to the 

affected emissions units at your source. 

The reviewing authority may require, as 

appropriate, any of the requirements in 

paragraphs (a)(3)(i) and (ii) of this 

section. 

(i) Any emissions monitoring, 

including analysis procedures, test 

methods, periodic testing, instrumental 

monitoring and non-instrumental 

monitoring. Such monitoring 

requirements shall assure use of test 

methods, units, averaging periods and 

other statistical conventions consistent 

with the required emission limitations. 

(ii) As necessary, requirements 

concerning the use, maintenance and 

installation of monitoring equipment or 

methods. 

(4) Recordkeeping requirements. The 

permit must include recordkeeping 

requirements sufficient to assure 

compliance with the emission 

limitations and monitoring 

requirements and it must require the 

elements in paragraphs (a)(4)(i) and (ii) 

of this section. 

(i) Records of required monitoring 

information that include the 

information in paragraphs (a)(4)(i)(A) 

through (F) of this section, as 

appropriate. 

(A) The location, date and time of 

sampling or measurements. 

(B) The date(s) analyses were 

performed. 

(C) The company or entity that 

performed the analyses. 

(D) The analytical techniques or 

methods used. 

(E) The results of such analyses. 

(F) The operating conditions existing 

at the time of sampling or measurement. 

(ii) Retention for 5 years of records of 

all required monitoring data and 

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support information for the monitoring 

sample, measurement, report or 

application. Support information may 

include all calibration and maintenance 

records, all original strip-chart 

recordings or digital records for 

continuous monitoring instrumentation 

and copies of all reports required by the 

permit. 

(5) Reporting requirements. The 

permit must include the reporting 

requirements in paragraphs (a)(5)(i) and 

(ii) of this section. 

(i) Annual submittal of reports of 

monitoring required under paragraph 

(a)(3) of this section, including the type 

and frequency of monitoring and a 

summary of results obtained by 

monitoring. 

(ii) Prompt reporting of deviations 

from permit requirements, including 

those attributable to upset conditions as 

defined in the permit, the probable 

cause of such deviations and any 

corrective actions or preventive 

measures taken. Within the permit, the 

reviewing authority must define 

‘‘prompt’’ in relation to the degree and 

type of deviation likely to occur and the 

applicable emission limitations. 

(6) Severability clause. The permit 

must include a severability clause to 

ensure the continued validity of the 

other portions of the permit in the event 

of a challenge to a portion of the permit. 

(7) Additional provisions. The permit 

must also contain provisions stating the 

requirements in paragraphs (a)(7)(i) 

through (vii) of this section. 

(i) You, as the permittee, must comply 

with all conditions of your permit, 

including emission limitations that 

apply to the affected emissions units at 

your source. Noncompliance with any 

permit term or condition is a violation 

of the permit and may constitute a 

violation of the Act and is grounds for 

enforcement action and for a permit 

termination or revocation. 

(ii) Your permitted source must not 

cause or contribute to a NAAQS 

violation or in an attainment area, must 

not cause or contribute to a PSD 

increment violation. 

(iii) It is not a defense for you, as the 

permittee, in an enforcement action that 

it would have been necessary to halt or 

reduce the permitted activity in order to 

maintain compliance with the 

conditions of this permit. 

(iv) The permit may be revised, 

reopened, revoked and reissued or 

terminated for cause. The filing of a 

request by you, as the permittee, for a 

permit revision, revocation and reissuance or termination or of a 

notification of planned changes or 

anticipated noncompliance does not 

stay any permit condition. 

(v) The permit does not convey any 

property rights of any sort or any 

exclusive privilege. 

(vi) You, as the permittee, shall 

furnish to the reviewing authority, 

within a reasonable time, any 

information that the reviewing authority 

may request in writing to determine 

whether cause exists for revising, 

revoking and reissuing or terminating 

the permit or to determine compliance 

with the permit. For any such 

information claimed to be confidential, 

you must also submit a claim of 

confidentiality in accordance with part 

2, subpart B of this chapter. 

(vii) Upon presentation of proper 

credentials, you, as the permittee, must 

allow a representative of the reviewing 

authority to: 

(A) Enter upon your premises where 

a source is located or emissions-related 

activity is conducted or where records 

are required to be kept under the 

conditions of the permit; 

(B) Have access to and copy, at 

reasonable times, any records that are 

required to be kept under the conditions 

of the permit; 

(C) Inspect, during normal business 

hours or while the source is in 

operation, any facilities, equipment 

(including monitoring and air pollution 

control equipment), practices or 

operations regulated or required under 

the permit; 

(D) Sample or monitor, at reasonable 

times, substances or parameters for the 

purpose of assuring compliance with 

the permit or other applicable 

requirements and 

(E) Record any inspection by use of 

written, electronic, magnetic and 

photographic media. 

(b) Can my permit become invalid? 

Your permit becomes invalid if you do 

not commence construction within 18 

months after the effective date of your 

permit, if you discontinue construction 

for a period of 18 months or more or if 

you do not complete construction 

within a reasonable time. The reviewing 

authority may extend the 18-month 

period upon a satisfactory showing that 

an extension is justified. This provision 

does not apply to the time period 

between construction of the approved 

phases of a phased construction project; 

you must commence construction of 

each such phase within 18 months of 

the projected and approved 

commencement date. 

§ 49.156 General permits. 

This section applies to general 

permits for the purposes of complying 

with the preconstruction permitting 

requirements for sources of regulated 

NSR pollutants under this program. 

(a) What is a general permit? A 

general permit is a preconstruction 

permit issued by a reviewing authority 

that may be applied to a number of 

similar emissions units or sources. The 

purpose of a general permit is to 

simplify the permit issuance process for 

similar facilities so that a reviewing 

authority’s limited resources need not 

be expended for case-by-case permit 

development for such facilities. A 

general permit may be written to 

address a single emissions unit, a group 

of the same type of emissions units or 

an entire minor source. 

(b) How will the reviewing authority 

issue general permits? The reviewing 

authority will issue general permits as 

follows: 

(1) A general permit may be issued for 

a category of emissions units or sources 

that are similar in nature, have 

substantially similar emissions and 

would be subject to the same or 

substantially similar requirements 

governing operations, emissions, 

monitoring, reporting and 

recordkeeping. ‘‘Similar in nature’’ 

refers to size, processes and operating 

conditions. 

(2) A general permit must be issued 

according to the applicable 

requirements in § 49.154(c), § 49.154(d) 

and § 49.155, the public participation 

requirements in § 49.157 and the 

requirements for final permit issuance 

and administrative and judicial review 

in § 49.159. 

(3) Issuance of a general permit is 

considered final agency action with 

respect to all aspects of the general 

permit except its applicability to an 

individual source. The sole issue that 

may be appealed after an individual 

source is approved to construct under a 

general permit (see paragraph (e) of this 

section) is the applicability of the 

general permit to that particular source. 

(c) For what categories will general 

permits be issued? 

(1) The reviewing authority will 

determine which categories of 

individual emissions units, groups of 

similar emissions units or sources are 

appropriate for general permits in its 

area. 

(2) General permits will be issued at 

the discretion of the reviewing 

authority. 

(d) What should the general permit 

contain? The general permit must 

contain the permit elements listed in 

§ 49.155(a). In addition, the general 

permit must contain the information 

listed in paragraphs (d)(1) and (2) of this 

section. The reviewing authority may 

specify additional general permit terms 

and conditions. 

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(1) Identification of the specific 

category of emissions units or sources to 

which the general permit applies, 

including any criteria that your 

emissions units or source must meet to 

be eligible for coverage under the 

general permit. 

(2) Information required to request 

coverage under a general permit 

including, but not limited to, the 

following: 

(i) The name and mailing address of 

the reviewing authority to whom you 

must submit your application. 

(ii) The procedure to obtain any 

standard application forms that the 

reviewing authority may have 

developed. 

(iii) The information that you must 

provide to the reviewing authority in 

your application to demonstrate that 

you are eligible for coverage under the 

general permit. 

(iv) Other application requirements 

deemed necessary by the reviewing 

authority. 

(e) What are the procedures for 

obtaining coverage for a source under a 

general permit? 

(1) If your source qualifies for a 

general permit, you may request 

coverage under that general permit to 

the reviewing authority 4 months after 

the effective date of the general permit, 

that is, 6 months after publication of the 

general permit in the Federal Register. 

(2) At the time you submit your 

request for coverage under a general 

permit, you must submit a copy of such 

request to the Tribe in the area where 

the source is locating. 

(3) The reviewing authority must act 

on your request for coverage under the 

general permit as expeditiously as 

possible, but it must notify you of the 

final decision within 90 days of its 

receipt of your coverage request. 

(4) Your reviewing authority must 

comply with a 45-day completeness 

review period to determine if your 

request for coverage under a general 

permit is complete. Therefore, within 30 

days after the receipt of your coverage 

request, your reviewing authority must 

make an initial request for any 

additional information necessary to 

process your coverage request and you 

must submit such information within 15 

days. If you do not submit the requested 

information within 15 days from the 

request for additional information and 

this results in a delay that is beyond the 

45-day completeness review period, the 

90-day permit issuance period for your 

general permit will be extended by the 

additional days you take to submit the 

requested information beyond the 45- 

day period. If the reviewing authority 

fails to notify you within a 30-day 

period of any additional information 

necessary to process your coverage 

request, you will still have 15 days to 

submit such information and the 

reviewing authority must still grant or 

deny your request for coverage under a 

general permit within the 90-day 

general permit issuance period and 

without any time extension. 

(5) If the reviewing authority 

determines that your request for 

coverage under a general permit has all 

the relevant information and is 

complete, it will notify you in writing 

as soon as that determination is made. 

If you do not receive from the reviewing 

authority a request for additional 

information or a notice that your request 

for coverage under a general permit is 

complete within the 45-day 

completeness review period described 

in paragraph (4) of this section, your 

request will be deemed complete. 

(6) The reviewing authority will send 

you a letter notifying you of the 

approval or denial of your request for 

coverage under a general permit. This 

letter is a final action for purposes of 

judicial review (see 40 CFR 49.159) only 

for the issue of whether your source 

qualifies for coverage under the general 

permit. If your request for coverage 

under a general permit is approved, you 

must post, prominently, a copy of the 

letter granting such request at the site 

where your source is locating. 

(7) If the reviewing authority has sent 

a letter to you approving your request 

for coverage under a general permit, you 

must comply with all conditions and 

terms of the general permit. You will be 

subject to enforcement action for failure 

to obtain a preconstruction permit if you 

construct the emissions unit(s) or source 

with general permit approval and your 

source is later determined not to qualify 

for the conditions and terms of the 

general permit. 

(8) Your permit becomes invalid if 

you do not commence construction 

within 18 months after the effective date 

of your request for coverage under a 

general permit, if you discontinue 

construction for a period of 18 months 

or more or if you do not complete 

construction within a reasonable time. 

The reviewing authority may extend the 

18-month period upon a satisfactory 

showing that an extension is justified. 

This provision does not apply to the 

time period between construction of the 

approved phases of a phased 

construction project; you must 

commence construction of each such 

phase within 18 months of the projected 

and approved commencement date. 

(9) Any source eligible to request 

coverage under a general permit may 

request to be excluded from the general 

permit by applying for a permit under 

§ 49.154. 

§ 49.157 Public participation requirements. 

This section applies to the issuance of 

minor source permits and synthetic 

minor source permits, the initial 

issuance of general permits and 

coverage of a particular source under a 

general permit. 

(a) What permit information will be 

publicly available? With the exception 

of any confidential information as 

defined in part 2, subpart B of this 

chapter, the reviewing authority must 

make available for public inspection the 

documents listed in paragraphs (a)(1) 

through (6) of this section. The 

reviewing authority must make such 

information available for public 

inspection at the appropriate EPA 

Regional Office and in at least one 

location in the area affected by the 

source, such as the Tribal 

environmental office or a local library. 

(1) All information submitted as part 

of your application for a permit. 

(2) Any additional information 

requested by the reviewing authority. 

(3) The reviewing authority’s analysis 

of the application and any additional 

information you submitted, including 

(for preconstruction permits and the 

initial issuance of general permits) the 

control technology review. 

(4) For minor source permits and the 

initial issuance of general permits, the 

reviewing authority’s analysis of the 

effect of the construction of the minor 

source or modification on ambient air 

quality. 

(5) For coverage of a particular source 

under a general permit, the reviewing 

authority’s analysis of whether your 

particular emissions unit or source is 

within the category of emissions units 

or sources to which the general permit 

applies, including whether your 

emissions unit or source meets any 

criteria to be eligible for coverage under 

the general permit. 

(6) A copy of the draft permit or the 

decision to deny the permit with the 

justification for denial. 

(b) How will the public be notified 

and participate? 

(1) Before issuing a permit under this 

program, the reviewing authority must 

prepare a draft permit and must provide 

adequate public notice to ensure that 

the affected community and the general 

public have reasonable access to the 

application and draft permit 

information, as set out in paragraphs 

(b)(1)(i) and (ii) of this section. The 

public notice must provide an 

opportunity for public comment and 

notice of a public hearing, if any, on the 

draft permit. 

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(i) The reviewing authority must mail 

a copy of the notice to you, the 

appropriate Indian governing body and 

the Tribal, state and local air pollution 

authorities having jurisdiction adjacent 

to the area of Indian country potentially 

impacted by the air pollution source. 

(ii) Depending on such factors as the 

nature and size of your source, local air 

quality considerations and the 

characteristics of the population in the 

affected area (e.g., subsistence hunting 

and fishing or other seasonal cultural 

practices), the reviewing authority must 

use appropriate means of notification, 

such as those listed in paragraphs 

(b)(1)(ii)(A) through (E) of this section. 

(A) The reviewing authority may mail 

or e-mail a copy of the notice to persons 

on a mailing list developed by the 

reviewing authority consisting of those 

persons who have requested to be 

placed on such a mailing list. 

(B) The reviewing authority may post 

the notice on its Web site. 

(C) The reviewing authority may 

publish the notice in a newspaper of 

general circulation in the area affected 

by the source. Where possible, the 

notice may also be published in a Tribal 

newspaper or newsletter. 

(D) The reviewing authority may 

provide copies of the notice for posting 

at one or more locations in the area 

affected by the source, such as post 

offices, trading posts, libraries, Tribal 

environmental offices, community 

centers or other gathering places in the 

community. 

(E) The reviewing authority may 

employ other means of notification as 

appropriate. 

(2) The notice required pursuant to 

paragraph (b)(1) of this section must 

include the following information at a 

minimum: 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) The name and address of the 

reviewing authority processing the 

permit action; 

(iii) For minor source permits, the 

initial issuance of general permits and 

coverage of a particular source under a 

general permit, the regulated NSR 

pollutants to be emitted, the affected 

emissions units and the emission 

limitations for each affected emissions 

unit; 

(iv) For minor source permits, the 

initial issuance of general permits and 

coverage of a particular source under a 

general permit, the emissions change 

involved in the permit action; 

(v) For synthetic minor source 

permits, a description of the proposed 

limitation and its effect on the potential 

to emit of the source; 

(vi) Instructions for requesting a 

public hearing; 

(vii) The name, address and telephone 

number of a contact person in the 

reviewing authority’s office from whom 

additional information may be obtained; 

(viii) Locations and times of 

availability of the information (listed in 

paragraph (a) of this section) for public 

inspection and 

(ix) A statement that any person may 

submit written comments, a written 

request for a public hearing or both, on 

the draft permit action. The reviewing 

authority must provide a period of at 

least 30 days from the date of the public 

notice for comments and for requests for 

a public hearing. 

(c) How will the public comment and 

will there be a public hearing? 

(1) Any person may submit written 

comments on the draft permit and may 

request a public hearing. These 

comments must raise any reasonably 

ascertainable issue with supporting 

arguments by the close of the public 

comment period (including any public 

hearing). The reviewing authority must 

consider all comments in making the 

final decision. The reviewing authority 

must keep a record of the commenters 

and of the issues raised during the 

public participation process and such 

records must be available to the public. 

(2) The reviewing authority must 

extend the public comment period 

under paragraph (b) of this section to 

the close of any public hearing under 

this section. The hearing officer may 

also extend the comment period by so 

stating at the hearing. 

(3) A request for a public hearing 

must be in writing and must state the 

nature of the issues proposed to be 

raised at the hearing. 

(4) The reviewing authority must hold 

a hearing whenever there is, on the basis 

of requests, a significant degree of 

public interest in a draft permit. The 

reviewing authority may also hold a 

public hearing at its discretion, 

whenever, for instance, such a hearing 

might clarify one or more issues 

involved in the permit decision. The 

reviewing authority must provide notice 

of any public hearing at least 30 days 

prior to the date of the hearing. Public 

notice of the hearing may be concurrent 

with that of the draft permit and the two 

notices may be combined. Reasonable 

limits may be set upon the time allowed 

for oral statements at the hearing. 

(5) The reviewing authority must 

make a tape recording or written 

transcript of any hearing available to the 

public. 

§ 49.158 Synthetic minor source permits. 

You may obtain a synthetic minor 

source permit under this program to 

establish a synthetic minor source for 

purposes of the applicable PSD, 

nonattainment major NSR or Clean Air 

Act title V program and/or a synthetic 

minor HAP source for purposes of part 

63 of the Act or the applicable Clean Air 

Act title V program. Any source that 

becomes a synthetic minor source for 

NSR and title V purposes but has other 

applicable requirements or becomes a 

synthetic minor for NSR but is major for 

title V purposes, remains subject to the 

applicable title V program. Note that if 

you propose to construct or modify a 

synthetic minor source, you are also 

subject to the preconstruction 

permitting requirements in §§ 49.154 

and 49.155, except for the permit 

application content and permit 

application completeness provisions 

included in § 49.154(a)(2) and 

§ 49.154(b). 

(a) What information must my 

synthetic minor source permit 

application contain? 

(1) Your application must include the 

following information: 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) For each regulated NSR pollutant 

and/or HAP and for all emissions units 

to be covered by an emissions 

limitation, the following information: 

(A) The proposed emission limitation 

and a description of its effect on actual 

emissions or the potential to emit. 

Proposed emission limitations must 

have a reasonably short averaging 

period, taking into consideration the 

operation of the source and the methods 

to be used for demonstrating 

compliance. 

(B) Proposed testing, monitoring, 

recordkeeping and reporting 

requirements to be used to demonstrate 

and assure compliance with the 

proposed limitation. 

(C) A description of the production 

processes. 

(D) Identification of the emissions 

units. 

(E) Type and quantity of fuels and/or 

raw materials used. 

(F) Description and estimated 

efficiency of air pollution control 

equipment under present or anticipated 

operating conditions. 

(G) Estimates of the current actual 

emissions and current potential to emit, 

including all calculations for the 

estimates. 

(H) Estimates of the allowable 

emissions and/or potential to emit that 

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would result from compliance with the 

proposed limitation, including all 

calculations for the estimates. 

(iii) Any other information 

specifically requested by the reviewing 

authority. 

(2) Estimates of actual emissions must 

be based upon actual test data or in the 

absence of such data, upon procedures 

acceptable to the reviewing authority. 

Any emission estimates submitted to the 

reviewing authority must be verifiable 

using currently accepted engineering 

criteria. The following procedures are 

generally acceptable for estimating 

emissions from air pollution sources: 

(i) Source-specific emission tests; 

(ii) Mass balance calculations; 

(iii) Published, verifiable emission 

factors that are applicable to the source; 

(iv) Other engineering calculations or 

(v) Other procedures to estimate 

emissions specifically approved by the 

reviewing authority. 

(b) What are the procedures for 

obtaining a synthetic minor source 

permit? 

(1) If you wish to obtain a synthetic 

minor source permit under this 

program, you must submit a permit 

application to the reviewing authority. 

The application must contain the 

information specified in paragraph (a) of 

this section. 

(2) Within 60 days after receipt of an 

application, the reviewing authority will 

determine if it contains the information 

specified in paragraph (a) of this 

section. 

(3) If the reviewing authority 

determines that the application is not 

complete, it will request additional 

information from you as necessary to 

process the application. If the reviewing 

authority determines that the 

application is complete, it will notify 

you in writing. The reviewing 

authority’s completeness determination 

or request for additional information 

should be postmarked within 60 days of 

receipt of the permit application by the 

reviewing authority. If you do not 

receive a request for additional 

information or a notice of complete 

application postmarked within 60 days 

of receipt of the permit application by 

the reviewing authority, your 

application will be deemed complete 

(4) The reviewing authority will 

prepare a draft synthetic minor source 

permit that describes the proposed 

limitation and its effect on the potential 

to emit of the source. 

(5) The reviewing authority must 

provide an opportunity for public 

participation and public comment on 

the draft synthetic minor source permit 

as set out in § 49.157. 

(6) After the close of the public 

comment period, the reviewing 

authority will review all comments 

received and prepare a final synthetic 

minor source permit. 

(7) The final synthetic minor source 

permit will be granted or denied no later 

than 1 year after the date the application 

is deemed complete and all additional 

information necessary to make an 

informed decision has been provided. 

(8) The final synthetic minor source 

permit will be issued and will be subject 

to administrative and judicial review as 

set out in § 49.159. 

(c) What are my responsibilities under 

this program for my source that already 

has synthetic minor source or synthetic 

minor HAP source status prior to the 

effective date of this rule (that is, prior 

to August 30, 2011)? 

(1) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established pursuant to the 

FIPs applicable to the Indian 

reservations in Idaho, Oregon and 

Washington or was established under an 

EPA-approved rule or permit program 

limiting potential to emit, you do not 

need to take any action under this 

program unless you propose a 

modification for this existing synthetic 

minor source and/or synthetic minor 

HAP source, on or after the effective 

date of this rule, that is, on or after 

August 30, 2011. For these 

modifications, you need to obtain a 

permit pursuant to § 49.158 prior to 

commencing construction. 

(2) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established under a permit 

with enforceable emissions limitations 

issued pursuant to part 71 of this 

chapter, the reviewing authority has the 

discretion to do any of the following: 

(i) Allow you to maintain the 

synthetic minor status for your source 

through your permit under part 71 of 

this chapter, including subsequent 

renewals of that permit. 

(ii) Require you to submit an 

application for a synthetic minor source 

permit under this program by 

September 4, 2012, subject to the 

provisions in paragraphs (a) and (c)(4)(i) 

through (iii) of this section. The 

reviewing authority also has the 

discretion to require any additional 

requirements, including control 

technology requirements, based on the 

specific circumstances of the source. 

(iii) Require you to submit an 

application for a synthetic minor source 

permit under this program at the same 

time that you apply to renew your 

permit under part 71 of this chapter, 

subject to the provisions in paragraphs 

(a) and (c)(4)(i) through (iii) of this 

section. The reviewing authority also 

has the discretion to require any 

additional requirements, including 

control technology requirements, based 

on the specific circumstances of the 

source. 

(3) If your existing synthetic minor 

source and/or synthetic minor HAP 

source was established through a 

mechanism other than those described 

in paragraphs (c)(1) and (c)(2) of this 

section, you must submit an application 

for a synthetic minor source permit 

under this program by September 4, 

2012, subject to the provisions in 

paragraphs (a) and (c)(4)(i) through (iii) 

of this section 

(4) If you are required to obtain a 

synthetic minor source permit under 

this program for your existing synthetic 

minor source and/or synthetic minor 

HAP source, the following provisions 

apply: 

(i) After submitting your synthetic 

minor source permit application, you 

must respond in a timely manner to any 

requests from the reviewing authority 

for additional information. 

(ii) Provided that you submit your 

application as required in paragraph 

(c)(2)(ii), (c)(2)(iii) or (c)(3) (as 

applicable) and any requested 

additional information as required in 

paragraph (c)(4)(i) of this section, your 

source will continue to be considered a 

synthetic minor source or synthetic 

minor HAP source (as applicable) until 

your synthetic minor source permit 

under this program has been issued. 

Issuance of your synthetic minor source 

permit under this program will be in 

accordance with the applicable 

requirements in §§ 49.154 and 49.155 

and all other provisions under this 

section. 

(iii) Should you fail to submit your 

application as required in paragraph 

(c)(2)(ii), (c)(2)(iii) or (c)(3) (as 

applicable) or any requested additional 

information as required in paragraph 

(c)(4)(i) of this section, your source will 

no longer be considered a synthetic 

minor source or synthetic minor HAP 

source (as applicable) and will become 

subject to all requirements for major 

sources. In the case of sources subject to 

section (c)(2)(iii) of this section, the 

renewed part 71 permit will not contain 

enforceable emissions limitations and 

instead will include applicable major 

source requirements. 

§ 49.159 Final permit issuance and 

administrative and judicial review. 

(a) How will final action occur and 

when will my permit become effective? 

After decision on a permit, the 

reviewing authority must notify you of 

the decision, in writing and if the 

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permit is denied, of the reasons for such 

denial and the procedures for appeal. 

The reviewing authority must provide 

adequate public notice of the final 

permit decision to ensure that the 

affected community, general public and 

any individuals who commented on the 

draft permit have reasonable access to 

the decision and supporting materials 

according to 49.157(b)(1), for synthetic 

minor sources and minor modifications 

at major sources and according to one or 

more of the provisions in 

§ 49.157(b)(1)(ii)(A)–(E) for site-specific 

permits. A final permit becomes 

effective 30 days after service of notice 

of the final permit decision, unless: 

(1) A later effective date is specified 

in the permit or 

(2) Review of the final permit is 

requested under paragraph (d) of this 

section (in which case the specific terms 

and conditions of the permit that are the 

subject of the request for review must be 

stayed) or 

(3) The reviewing authority may make 

the permit effective immediately upon 

issuance if no comments requested a 

change in the draft permit or a denial of 

the permit. 

(b) For how long will the reviewing 

authority retain my permit-related 

records? The records, including any 

required applications for each draft and 

final permit or application for permit 

revision, must be kept by the reviewing 

authority for not less than 5 years. 

(c) What is the administrative record 

for each final permit? 

(1) The reviewing authority must base 

final permit decisions on an 

administrative record consisting of: 

(i) The application and any 

supporting data furnished by you, the 

permit applicant; 

(ii) The draft permit or notice of intent 

to deny the application; 

(iii) Other documents in the 

supporting files for the draft permit that 

were relied upon in the decisionmaking; 

(iv) All comments received during the 

public comment period, including any 

extension or reopening; 

(v) The tape or transcript of any 

hearing(s) held; 

(vi) Any written material submitted at 

such a hearing; 

(vii) Any new materials placed in the 

record as a result of the reviewing 

authority’s evaluation of public 

comments; 

(viii) The final permit and 

(ix) Other documents in the 

supporting files for the final permit that 

were relied upon in the decisionmaking. 

(2) The additional documents 

required under paragraph (c)(1) of this 

section should be added to the record as 

soon as possible after their receipt or 

preparation by the reviewing authority. 

The record must be complete on the 

date the final permit is issued. 

(3) Material readily available or 

published materials that are generally 

available and that are included in the 

administrative record under the 

standards of paragraph (c)(1) of this 

section need not be physically included 

in the same file as the rest of the record 

as long as it is specifically referred to in 

that file. 

(d) Can permit decisions be appealed? 

Permit decisions may be appealed 

according to the following provisions: 

(1) The Administrator delegates 

authority to the Environmental Appeals 

Board (the Board) to issue final 

decisions in permit appeals filed under 

this program. An appeal directed to the 

Administrator, rather than to the Board, 

will not be considered. This delegation 

does not preclude the Board from 

referring an appeal or a motion under 

this program to the Administrator when 

the Board, in its discretion, deems it 

appropriate to do so. When an appeal or 

motion is referred to the Administrator 

by the Board, all parties shall be so 

notified and the provisions of this 

program referring to the Board shall be 

interpreted as referring to the 

Administrator. 

(2) Within 30 days after a final permit 

decision has been issued, any person 

who filed comments on the draft permit 

or participated in the public hearing 

may petition the Board to review any 

condition of the permit decision. Any 

person who failed to file comments or 

failed to participate in the public 

hearing on the draft permit may petition 

for administrative review only to the 

extent that the changes from the draft to 

the final permit or other new grounds 

were not reasonably ascertainable 

during the public comment period on 

the draft permit. The 30-day period 

within which a person may request 

review under this section begins with 

the service of notice of the final permit 

decision, unless a later date is specified 

in that notice. 

(3) The petition must include a 

statement of the reasons supporting the 

review, including a demonstration that 

any issues being raised were raised 

during the public comment period 

(including any public hearing) to the 

extent required by these regulations, 

unless the petitioner demonstrates that 

such objections were not reasonably 

ascertainable within such period and, 

when appropriate, a showing that the 

condition in question is based on: 

(i) A finding of fact or conclusion of 

law that is clearly erroneous or 

(ii) An exercise of discretion or an 

important policy consideration that the 

Board should, in its discretion, review. 

(4) The Board may also decide on its 

own initiative to review any condition 

of any permit issued under this 

program. 

(5) Within a reasonable time following 

the filing of the petition for review, the 

Board will issue an order either granting 

or denying the petition for review. To 

the extent review is denied, the 

conditions of the final permit decision 

become final agency action. If the Board 

grants review in response to requests 

under paragraph (d)(2)–(3) or (4) of this 

section, public notice must be given as 

provided in § 49.157(b). Public notice 

must set forth a briefing schedule for the 

appeal and must state that any 

interested person may file an amicus 

brief. If the Board denies review, you, 

the permit applicant and the person(s) 

requesting review must be notified 

through means that are adequate to 

assure reasonable access to the decision, 

which may include mailing a notice to 

each party. 

(6) The reviewing authority, at any 

time prior to the rendering of a decision 

under paragraph (d)(5) of this section to 

grant or deny review of a permit 

decision, may, upon notification to the 

Board and any interested parties, 

withdraw the permit and prepare a new 

draft permit addressing the portions so 

withdrawn. The new draft permit shall 

proceed through the same process of 

public comment and opportunity for a 

public hearing as would apply to any 

other draft permit subject to this subpart 

and in accordance with § 49.157. 

(7) A petition to the Board under 

paragraph (d)(2) of this section is, under 

section 307(b) of the Act, a prerequisite 

to seeking judicial review of the final 

agency action. 

(8) For purposes of judicial review, 

final agency action occurs when a final 

permit is issued or denied by the 

reviewing authority and agency review 

procedures are exhausted. A final 

permit decision will be issued by the 

reviewing authority: 

(i) When the Board issues notice to 

the parties that review has been denied; 

(ii) When the Board issues a decision 

on the merits of the appeal and the 

decision does not include a remand of 

the proceedings or 

(iii) Upon the completion of remand 

proceedings if the proceedings are 

remanded, unless the Board’s remand 

order specifically provides that appeal 

of the remand decision will be required 

to exhaust administrative remedies. 

(9) Motions to reconsider a final order 

must be filed within 10 days after 

service of the final order. Every such 

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motion must set forth the matters 

claimed to have been erroneously 

decided and the nature of the alleged 

errors. Motions for reconsideration 

under this provision must be directed to 

and decided by, the Board. Motions for 

reconsideration directed to the 

Administrator, rather than to the Board, 

will not be considered, except in cases 

the Board has referred to the 

Administrator pursuant to § 49.159(d)(1) 

and in which the Administrator has 

issued the final order. A motion for 

reconsideration will not stay the 

effective date of the final order unless 

specifically so ordered by the Board. 

(10) For purposes of this section, time 

periods are computed as follows: 

(i) Any time period scheduled to 

begin on the occurrence of an act or 

event must begin on the day after the act 

or event. 

(ii) Any time period scheduled to 

begin before the occurrence of an act or 

event must be computed so that the 

period ends on the day before the act or 

event, except as otherwise provided. 

(iii) If the final day of any time period 

falls on a weekend or legal holiday, the 

time period must be extended to the 

next working day. 

(iv) Whenever a party or interested 

person has the right or is required to act 

within a prescribed period after the 

service of notice or other paper upon 

him or her by mail, 3 days must be 

added to the prescribed time. 

(e) Can my permit be reopened? The 

reviewing authority may reopen an 

existing, currently-in-effect permit for 

cause on its own initiative, such as if it 

contains a material mistake or fails to 

assure compliance with applicable 

requirements. However, except for those 

permit reopenings that do not increase 

the emissions limitations in the permit, 

such as permit reopenings that correct 

typographical, calculation and other 

errors, all other permit reopenings shall 

be carried out after the opportunity of 

public notice and comment and in 

accordance with one or more of the 

public participation requirements under 

§ 49.157(b)(1)(ii). 

(f) What is an administrative permit 

revision? The following provisions 

govern administrative permit revisions. 

(1) An administrative permit revision 

is a permit revision that makes any of 

the following changes: 

(i) Corrects typographical errors. 

(ii) Identifies a change in the name, 

address or phone number of any person 

identified in the permit or provides a 

similar minor administrative change at 

the source. 

(iii) Requires more frequent 

monitoring or reporting by the 

permittee. 

(iv) Allows for a change in ownership 

or operational control of a source where 

the reviewing authority determines that 

no other change in the permit is 

necessary, provided that a written 

agreement containing a specific date for 

transfer of permit responsibility, 

coverage and liability between the 

current and new permittee has been 

submitted to the reviewing authority. 

(v) Establishes an increase in an 

emissions unit’s annual allowable 

emissions limit for a regulated NSR 

pollutant, when the action that 

necessitates such increase is not 

otherwise subject to review under major 

NSR or under this program. 

(vi) Incorporates any other type of 

change that the reviewing authority has 

determined to be similar to those in 

paragraphs (f)(1)(i) through (v) of this 

section. 

(2) An administrative permit revision 

is not subject to the permit application, 

issuance, public participation or 

administrative and judicial review 

requirements of this program. 

§ 49.160 Registration program for minor 

sources in Indian country. 

(a) Does this section apply to my 

source? This section applies to you if 

you are the owner/operator of a true 

minor source. 

(b) What is exempted from this 

section? The exemptions in paragraphs 

(b)(1) and (b)(2) of this section apply to 

the registration program of this section. 

(1) You are exempt from this 

registration program if any of the 

following paragraphs applies to your 

source: 

(i) Your source is subject to the 

registration requirements under 

§ 49.138—‘‘Rule for the registration of 

air pollution sources and the reporting 

of emissions.’’ 

(ii) Your source has a part 71 permit. 

(iii) Your source is a synthetic minor 

source or a synthetic minor HAP source 

or a minor modification at a major 

source as defined in § 49.152(d). 

(2) For purposes of determining the 

potential to emit, allowable or actual 

emissions of your source, you are not 

required to include emissions from the 

exempted emissions units and activities 

listed in § 49.153(c). 

(c) What are the requirements for 

registering your minor source? The 

requirements for registrations are as 

follows: 

(1) Due date. The due date of your 

source registration varies according to 

the following paragraphs: 

(i) If you own or operate an existing 

true minor source (as defined in 40 CFR 

49.152(d)), you must register your 

source with your reviewing authority 18 

months after the effective date of this 

program, that is, March 1, 2013. 

(ii) If your true minor source 

commences construction in the time 

period between the effective date of the 

rule and September 2, 2014, you must 

register your source with your reviewing 

authority within 90 days after the source 

begins operation. 

(iii) If construction or modification of 

your source commenced any time on or 

after September 2, 2014 and your source 

is subject to this rule, you must report 

your source’s actual emissions (if 

available) as part of your permit 

application and your permit application 

information will be used to fulfill the 

registration requirements described in 

§ 49.160(c)(2). 

(2) Content. You must submit all 

registration information on forms 

provided by the reviewing authority. 

Each registration must include the 

following information, as applicable: 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) A description of your source’s 

processes and products. 

(iii) A list of all emissions units (with 

the exception of the exempt emissions 

units and activities listed in § 49.153(c)). 

(iv) For each emissions unit that is 

listed, both the allowable and estimated 

actual annual emissions of each 

regulated NSR pollutant in tpy 

(including fugitive emissions, to the 

extent that they are quantifiable, if the 

emissions unit or source is in one of the 

source categories listed in § 51, 

Appendix S, paragraph II.A.4(iii) or 

§ 52.21(b)(1)(iii) of this chapter), with 

supporting documentation. 

(v) The following information: Fuels, 

fuel use, raw materials, production rates 

and operating schedules. 

(vi) Identification and description of 

any existing air pollution control 

equipment and compliance monitoring 

devices or activities. 

(vii) Any existing limitations on 

source operation affecting emissions or 

any work practice standards, where 

applicable, for all NSR regulated 

pollutants at the source. 

(viii) Any other information 

specifically requested by the reviewing 

authority. 

(3) Procedure for estimating 

emissions. Your registration should 

include potential to emit or estimates of 

the allowable and actual emissions, in 

tpy, of each regulated NSR pollutant for 

each emissions unit at the source. 

(i) Estimates of allowable emissions 

must be consistent with the definition of 

that term in § 49.152(d). Allowable 

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emissions must be calculated based on 

8,760 operating hours per year (i.e., 

operating 24 hours per day, 365 days 

per year) unless the reviewing authority 

approves a different number of annual 

operating hours as the basis for the 

calculation. 

(ii) Estimates of actual emissions must 

take into account equipment, operating 

conditions and air pollution control 

measures. For a source that operated 

during the entire calendar year 

preceding the initial registration 

submittal, the reported actual emissions 

typically should be the annual 

emissions for the preceding calendar 

year, calculated using the actual 

operating hours, production rates, inplace control equipment and types of 

materials processed, stored or 

combusted during the preceding 

calendar year. However, if you believe 

that the actual emissions in the 

preceding calendar year are not 

representative of the emissions that your 

source will actually emit in coming 

years, you may submit an estimate of 

projected actual emissions along with 

the actual emissions from the preceding 

calendar year and the rationale for the 

projected actual emissions. For a source 

that has not operated for an entire year, 

the actual emissions are the estimated 

annual emissions for the current 

calendar year. 

(iii) The allowable and actual 

emission estimates must be based upon 

actual test data or, in the absence of 

such data, upon procedures acceptable 

to the reviewing authority. Any 

emission estimates submitted to the 

reviewing authority must be verifiable 

using currently accepted engineering 

criteria. The following procedures are 

generally acceptable for estimating 

emissions from air pollution sources: 

(i) Source-specific emission tests; 

(ii) Mass balance calculations; 

(iii) Published, verifiable emission 

factors that are applicable to the source; 

(iv) Other engineering calculations or 

(v) Other procedures to estimate 

emissions specifically approved by the 

Regional Administrator. 

(4) Duty to obtain a permit. 

Submitting a registration does not 

relieve you of the requirement to obtain 

any required permit, including a 

preconstruction permit, if your source 

or any physical or operational change at 

your source would be subject to any 

minor or major NSR rule. 

(d) What are the requirements for 

additional reports? After you have 

registered your source, you must submit 

the following additional reports, when 

applicable: 

(1) Report of relocation. After your 

source has been registered, you must 

report any relocation of your source to 

the reviewing authority in writing no 

later than 30 days prior to the relocation 

of the source. However, you need not 

submit a report if you obtained a major 

or minor NSR permit for the relocation. 

Submitting a report of relocation does 

not relieve you of the requirement to 

obtain a preconstruction permit if the 

change is subject to any major NSR or 

minor NSR rule. 

(2) Report of change of ownership. 

After your source has been registered, 

the new owner/operator must report any 

change of ownership of a source to the 

reviewing authority in writing within 90 

days after the change in ownership is 

effective. 

(3) Report of closure. Except for 

regular seasonal closures, after your 

source has been registered, you must 

submit a report of closure to the 

reviewing authority in writing within 90 

days after the cessation of all operations 

at your source. 

§ 49.161 Administration and delegation of 

the minor NSR program in Indian country. 

(a) Who administers a minor NSR 

program in Indian country? 

(1) If the Administrator has approved 

a TIP that includes a minor NSR 

program for sources in Indian country 

that meets the requirements of section 

110(a)(2)(C) of the Act and §§ 51.160 

through 51.164 of this chapter, the Tribe 

is the reviewing authority and it will 

administer the approved minor NSR 

program under Tribal law. 

(2) If the Administrator has not 

approved an implementation plan, the 

Administrator may delegate the 

authority to assist EPA with 

administration of portions of this 

Federal minor NSR program 

implemented under Federal authority to 

a Tribal agency upon request, in 

accordance with the provisions of 

paragraph (b) of this section. If the 

Tribal agency has been granted such 

delegation, it will have the authority to 

assist EPA according to paragraph (b) of 

this section and it will be the reviewing 

authority for purposes of the provisions 

for which it has been granted 

delegation. 

(3) If the Administrator has not 

approved an implementation plan or 

granted delegation to a Tribal agency, 

the Administrator is the reviewing 

authority and will directly administer 

all aspects of this Federal minor NSR 

program in Indian country under 

Federal authority. 

(b) Delegation of administration of the 

Federal minor NSR program to Tribes. 

This paragraph (b) establishes the 

process by which the Administrator 

may delegate authority to a Tribal 

agency, with or without signature 

authority, to assist EPA with 

administration of portions of this 

Federal minor NSR program, in 

accordance with the provisions in 

paragraphs (b)(1) through (8) of this 

section. Any Federal requirements 

under this program that are 

administered by the delegate Tribal 

agency will be subject to enforcement by 

EPA under Federal law. This section 

provides for administrative delegation 

of the Federal minor NSR program and 

does not affect the eligibility criteria 

under § 49.6 for treatment in the same 

manner as a state. 

(1) Information to be included in the 

Administrative Delegation Request. In 

order to be delegated authority to assist 

EPA with administration of this FIP 

permit program for sources, the Tribal 

agency must submit a request to the 

Administrator that: 

(i) Identifies the specific provisions 

for which delegation is requested; 

(ii) Identifies the Indian Reservation 

or other areas of Indian country for 

which delegation is requested; 

(iii) Includes a statement by the 

applicant’s legal counsel (or equivalent 

official) that includes the following 

information: 

(A) A statement that the applicant is 

a Tribe recognized by the Secretary of 

the Interior; 

(B) A descriptive statement that is 

consistent with the type of information 

described in § 49.7(a)(2) demonstrating 

that the applicant is currently carrying 

out substantial governmental duties and 

powers over a defined area and 

(C) A description of the laws of the 

Tribe that provide adequate authority to 

administer the Federal rules and 

provisions for which delegation is 

requested and 

(iv) A demonstration that the Tribal 

agency has the technical capability and 

adequate resources to administer the FIP 

provisions for which the delegation is 

requested. 

(2) Delegation of Partial 

Administrative Authority Agreement. A 

Delegation of Partial Administrative 

Authority Agreement (Agreement) will 

set forth the terms and conditions of the 

delegation, will specify the provisions 

that the delegate Tribal agency will be 

authorized to implement on behalf of 

EPA and will be entered into by the 

Administrator and the delegate Tribal 

agency. The Agreement will become 

effective upon the date that both the 

Administrator and the delegate Tribal 

agency have signed the Agreement or as 

otherwise stated in the Agreement. Once 

the delegation becomes effective, the 

delegate Tribal agency will be 

responsible, to the extent specified in 

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the Agreement, for assisting EPA with 

administration of the provisions of the 

Federal minor NSR program that are 

subject to the Agreement. 

(3) Publication of notice of the 

Agreement. The Administrator will 

publish a notice in the Federal Register 

informing the public of any Agreement 

for a particular area of Indian country. 

The Administrator also will publish the 

notice in a newspaper of general 

circulation in the area affected by the 

delegation. In addition, the 

Administrator will mail a copy of the 

notice to persons on a mailing list 

developed by the Administrator 

consisting of those persons who have 

requested to be placed on such a 

mailing list. 

(4) Revision or revocation of an 

Agreement. An Agreement may be 

modified, amended or revoked, in part 

or in whole, by the Administrator after 

consultation with the delegate Tribal 

agency. 

(5) Transmission of information to the 

Administrator. When administration of 

a portion of the Federal minor NSR 

program in Indian country that includes 

receipt of permit application materials 

and preparation of draft permits has 

been delegated in accordance with the 

provisions of this section, the delegate 

Tribal agency must provide to the 

Administrator a copy of each permit 

application (including any application 

for permit revision) and each draft 

permit. You, the permit applicant, may 

be required by the delegate Tribal 

agency to provide a copy of the permit 

application directly to the 

Administrator. With the Administrator’s 

consent, the delegate Tribal agency may 

submit to the Administrator a permit 

application summary form and any 

relevant portion of the permit 

application, in place of the complete 

permit application. To the extent 

practicable, the preceding information 

should be provided in electronic format 

by the delegate Tribal agency or by you, 

the permit applicant, as applicable and 

as requested by the Administrator. The 

delegate Tribal agency must also submit 

to the Administrator such information 

as the Administrator may reasonably 

require to ascertain whether the delegate 

Tribal agency is implementing and 

administering the delegated program in 

compliance with the requirements of the 

Act and of this program. 

(6) Waiver of information 

transmission requirements. The 

Administrator may waive the 

requirements of paragraph (b)(5) of this 

section for any category of sources 

(including any class, type or size within 

such category) by transmitting the 

waiver in writing to the delegate Tribal 

agency. 

(7) Retention of records. Where a 

delegate Tribal agency prepares draft or 

final permits or receives applications for 

permit revisions on behalf of EPA, the 

records for each draft and final permit 

or application for permit revision must 

be kept by the delegate Tribal agency for 

a period not less than 3 years. 

(8) Delegation of signature authority. 

To receive delegation of signature 

authority, the legal statement submitted 

by the Tribal agency pursuant to 

paragraph (b)(1) of this section must 

certify that no applicable provision of 

Tribal law requires that a minor NSR 

permit be issued after a certain time if 

the delegate Tribal agency has failed to 

take action on the application (or 

includes any other similar provision 

providing for default issuance of a 

permit). 

(c) Are there any non-delegable 

elements of the Federal minor NSR 

program in Indian country? The 

following authorities cannot be 

delegated outside of EPA: 

(1) The Administrator’s authority to 

object to the issuance of a minor NSR 

permit. 

(2) The Administrator’s authority to 

enforce permits issued pursuant to this 

program. 

(d) How will EPA transition its 

authority to an approved minor NSR 

program? 

(1) The Administrator will suspend 

the issuance of minor NSR permits 

under this program promptly upon 

publication of notice of approval of a 

Tribal implementation plan with a 

minor NSR permit program for that area. 

(2) The Administrator may retain 

jurisdiction over the permits for which 

the administrative or judicial review 

process is not complete and will address 

this issue in the notice of program 

approval. 

(3) After approval of a program for 

issuing minor NSR permits and the 

suspension of issuance of minor NSR 

permits by the Administrator, the 

Administrator will continue to 

administer minor NSR permits until 

permits are issued under the approved 

Tribal implementation plan program. 

(4) Permits previously issued under 

this program will remain in effect and 

be enforceable as a practical matter until 

and unless the Tribe issues new permits 

to these sources based on the provisions 

of the EPA-approved Tribal 

implementation plan. 

■ 3. Add an undesignated center 

heading and §§ 49.166 through 49.173 to 

subpart C to read as follows: 

Federal Major New Source Review 

Program for Nonattainment Areas in 

Indian Country 

* * * * * 

Sec. 

49.166 Program overview. 

49.167 Definitions. 

49.168 Does this program apply to me? 

49.169 Permit approval criteria. 

49.170 Emission offset requirement 

exemption. 

49.171 Public participation requirements. 

49.172 Final permit issuance and 

administrative and judicial review. 

49.173 Administration and delegation of 

the nonattainment major NSR program in 

Indian country. 

* * * * * 

§ 49.166 Program overview. 

(a) What constitutes the Federal major 

new source review (NSR) program for 

nonattainment areas in Indian country? 

As set forth in this Federal 

Implementation Plan (FIP), the Federal 

major NSR program for nonattainment 

areas in Indian country (or ‘‘program’’) 

consists of §§ 49.166 through 49.175. 

(b) What is the purpose of this 

program? This program has the 

following purposes: 

(1) It establishes a preconstruction 

permitting program for new major 

sources and major modifications at 

existing major sources located in 

nonattainment areas in Indian country 

to meet the requirements of part D of 

title I of the Act. 

(2) It requires that major sources 

subject to this program comply with the 

provisions and requirements of part 51, 

Appendix S of this chapter (Appendix 

S). Additionally, it sets forth the criteria 

and procedures in Appendix S that the 

reviewing authority (as defined in 

§ 49.167) will use to approve permits 

under this program. Note that for the 

purposes of this program, the term SIP 

as used in Appendix S means any EPAapproved implementation plan, 

including a Tribal Implementation Plan 

(TIP). While some of the important 

provisions of Appendix S are 

paraphrased in various paragraphs of 

this program to highlight them, the 

provisions of Appendix S govern. 

(3) It also sets forth procedures for 

appealing a permit issued under this 

program as provided in § 49.172. 

(c) When and where does this 

program apply? 

(1) The provisions of this program 

apply to new major sources and major 

modifications at existing major sources 

located in nonattainment areas in Indian 

country where there is no EPAapproved nonattainment major NSR 

program beginning on August 30, 2011. 

The provisions of this program apply 

only to new sources and modifications 

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1Under this definition, EPA treats as reservations 

trust lands validly set aside for the use of a tribe 

even if the trust lands have not been formally 

designated as a reservation. 

that are major for the regulated NSR 

pollutant(s) for which the area is 

designated nonattainment. 

(2) The provisions of this program 

cease to apply in an area covered by an 

EPA-approved implementation plan on 

the date that our approval of that 

implementation plan becomes effective, 

provided that the plan includes 

provisions that comply with the 

requirements of part D of title I of the 

Act and § 51.165 of this chapter for the 

construction of new major sources and 

major modifications at existing major 

sources in nonattainment areas. Permits 

previously issued under this program 

will remain in effect and be enforceable 

as a practical matter until and unless the 

Tribe issues new permits to these 

sources based on the provisions of the 

EPA-approved Tribal implementation 

plan. 

(d) What general provisions apply 

under this program? The following 

general provisions apply to you as an 

owner/operator of a source: 

(1) If you propose to construct a new 

major source or a major modification at 

an existing major source in a 

nonattainment area in Indian country, 

you must obtain a major NSR permit 

under this program before beginning 

actual construction. If you commence 

construction after the effective date of 

this program without applying for and 

receiving a permit pursuant to this 

program, you will be subject to 

appropriate enforcement action. 

(2) If you do not construct or operate 

your source or modification in 

accordance with the terms of your major 

NSR permit issued under this program, 

you will be subject to appropriate 

enforcement action. 

(3) Issuance of a permit under this 

program does not relieve you of the 

responsibility to comply fully with 

applicable provisions of any EPAapproved implementation plan or FIP 

and any other requirements under 

applicable law. 

(4) Nothing in this program prevents 

a Tribe from administering a 

nonattainment major NSR permit 

program with different requirements in 

an approved TIP as long as the TIP 

meets the requirements of part D of title 

I of the Act. 

§ 49.167 Definitions. 

For the purposes of this program, the 

definitions in part 51, Appendix S, 

paragraph II.A of this chapter apply, 

unless otherwise stated. The following 

definitions also apply to this program: 

Allowable emissions means 

‘‘allowable emissions’’ as defined in 

part 51, Appendix S, paragraph II.A.11 

of this chapter, except that the allowable 

emissions for any emissions unit are 

calculated considering any emission 

limitations that are enforceable as a 

practical matter on the emissions unit’s 

potential to emit. 

Enforceable as a practical matter 

means that an emission limitation or 

other standard is both legally and 

practicably enforceable as follows: 

(1) An emission limitation or other 

standard is legally enforceable if the 

reviewing authority has the right to 

enforce it. 

(2) Practical enforceability for an 

emission limitation or for other 

standards (design standards, equipment 

standards, work practices, operational 

standards, pollution prevention 

techniques) in a permit for a source is 

achieved if the permit’s provisions 

specify: 

(i) A limitation or standard and the 

emissions units or activities at the 

source subject to the limitation or 

standard; 

(ii) The time period for the limitation 

or standard (e.g., hourly, daily, monthly 

and/or annual limits such as rolling 

annual limits) and 

(iii) The method to determine 

compliance, including appropriate 

monitoring, recordkeeping, reporting 

and testing. 

(3) For rules and general permits that 

apply to categories of sources, practical 

enforceability additionally requires that 

the provisions: 

(i) Identify the types or categories of 

sources that are covered by the rule or 

general permit; 

(ii) Where coverage is optional, 

provide for notice to the reviewing 

authority of the source’s election to be 

covered by the rule or general permit 

and 

(iii) Specify the enforcement 

consequences relevant to the rule or 

general permit. 

Environmental Appeals Board means 

the Board within the EPA described in 

§ 1.25(e) of this chapter. 

Indian country, as defined in 

18 U.S.C. 1151, means the following: 

(1) All land within the limits of any 

Indian reservation under the 

jurisdiction of the United States 

government, notwithstanding the 

issuance of any patent and including 

rights-of-way running through the 

reservation; 1

(2) All dependent Indian communities 

within the borders of the United States 

whether within the original or 

subsequently acquired territory thereof 

and whether within or without the 

limits of a state and 

(3) All Indian allotments, the Indian 

titles to which have not been 

extinguished, including rights-of-way 

running through the same. 

Indian governing body means the 

governing body of any Tribe, band or 

group of Indians subject to the 

jurisdiction of the United States and 

recognized by the United States as 

possessing power of self-government. 

Reviewing authority means the 

Administrator or an Indian Tribe in 

cases where a Tribal agency is assisting 

EPA with administration of the program 

through a delegation under § 49.173. 

Synthetic minor HAP source means a 

source that otherwise has the potential 

to emit HAPs in amounts that are at or 

above those for major sources of HAP in 

§ 63.2 of this chapter, but that has taken 

a restriction such that its potential to 

emit is less than such amounts for major 

sources. Such restrictions must be 

enforceable as a practical matter. 

Synthetic minor source means a 

source that otherwise has the potential 

to emit regulated NSR pollutants in 

amounts that are at or above those for 

major sources in Appendix S, but that 

has taken a restriction such that its 

potential to emit is less than such 

amounts for major sources. Such 

restrictions must be enforceable as a 

practical matter. 

§ 49.168 Does this program apply to me? 

(a) In a nonattainment area for a 

pollutant in Indian country, the 

requirements of this program apply to 

you under either of the following 

circumstances: 

(1) If you propose to construct a new 

major source (as defined in part 51, 

Appendix S, paragraph II.A.4 of this 

chapter) of the nonattainment pollutant. 

(2) If you propose to construct a major 

modification at your existing major 

source (as defined in part 51, Appendix 

S, paragraph II.A.5 of this chapter), 

where your source is a major source of 

the nonattainment pollutant and the 

proposed modification is a major 

modification for the nonattainment 

pollutant. 

(b) If you own or operate a major 

source with a state-issued 

nonattainment major NSR permit, you 

must apply to convert such permit to a 

Federal permit under this program by 

September 4, 2012. 

(c) If you propose to establish a 

synthetic minor source or synthetic 

minor HAP source or to construct a 

minor modification at your major 

source, you will have to comply with 

the requirements of the Federal minor 

NSR program in Indian country at 

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§§ 49.151 through 49.165 or other EPAapproved minor NSR program, as 

applicable. 

49.169 Permit approval criteria. 

(a) What are the general criteria for 

permit approval? The general review 

criteria for permits are provided in part 

51, Appendix S, paragraph II.B of this 

chapter. In summary, that paragraph 

basically requires the reviewing 

authority to ensure that the proposed 

new major source or major modification 

would meet all applicable emission 

requirements in the EPA-approved 

implementation plan or FIP, any 

applicable new source performance 

standard in part 60 of this chapter and 

any applicable national emission 

standards for hazardous air pollutants in 

part 61 or part 63 of this chapter, before 

a permit can be issued. 

(b) What are the program-specific 

criteria for permit approval? The 

approval criteria or conditions for 

obtaining a major NSR permit for major 

sources and major modifications 

locating in nonattainment areas are 

given in part 51, Appendix S, paragraph 

IV.A of this chapter. In summary, these 

are the following: 

(1) The lowest achievable emission 

rate (LAER) requirement for any NSR 

pollutant subject to this program. 

(2) Certification that all existing major 

sources owned or operated by you in the 

same state as the state including the 

Tribal land where the proposed source 

or modification is locating are in 

compliance or under a compliance 

schedule. 

(3) Emissions reductions (offsets) 

requirement for any source or 

modification subject to this program. 

(4) A demonstration that the emission 

offsets will provide a net air quality 

benefit in the affected area. 

(5) An analysis of alternative sites, 

sizes, production processes and 

environmental control techniques for 

such proposed source that demonstrates 

that the benefits of the proposed source 

significantly outweigh the 

environmental and social costs imposed 

as a result of its location, construction 

or modification. 

§ 49.170 Emission offset requirement 

exemption. 

An Indian governing body may seek 

an exemption from the emission offset 

requirement (see § 49.169(b)(3)) for 

major sources and major modifications 

subject to this program that are located 

within the Tribe’s Indian country 

pursuant to section 173(a)(1)(B) of the 

Act, under which major sources and 

major modifications subject to this 

program may be exempted from the 

offset requirement if they are located in 

a zone targeted for economic 

development by the Administrator, in 

consultation with the Department of 

Housing and Urban Development 

(HUD). Under this Economic 

Development Zone (EDZ) approach, the 

Administrator would waive the offset 

requirement for such sources and 

modifications, provided that: 

(a) The new major source or major 

modification is located in a geographical 

area which meets the criteria for an EDZ 

and the Administrator has approved a 

request from a Tribe and declared the 

area an EDZ and 

(b) The state/Tribe demonstrates that 

the new permitted emissions are 

consistent with the achievement of 

reasonable further progress pursuant to 

section 172(c)(4) of the Act and will not 

interfere with attainment of the 

applicable NAAQS by the applicable 

attainment date. 

§ 49.171 Public participation requirements. 

(a) What permit information will be 

publicly available? With the exception 

of any confidential information as 

defined in part 2, subpart B of this 

chapter, the reviewing authority must 

make available for public inspection the 

documents listed in paragraphs (a)(1) 

through (4) of this section. The 

reviewing authority must make such 

information available for public 

inspection at the appropriate EPA 

Regional Office and in at least one 

location in the area affected by the 

source, such as the Tribal 

environmental office or a local library. 

(1) All information submitted as part 

of your application for a permit. 

(2) Any additional information 

requested by the reviewing authority. 

(3) The reviewing authority’s analysis 

of the application and any additional 

information submitted by you, 

including the LAER analysis and, where 

applicable, the analysis of your 

emissions reductions (offsets), your 

demonstration of a net air quality 

benefit in the affected area and your 

analysis of alternative sites, sizes, 

production processes and 

environmental control techniques. 

(4) A copy of the draft permit or the 

decision to deny the permit with the 

justification for denial. 

(b) How will the public be notified 

and participate? 

(1) Before issuing a permit under this 

program, the reviewing authority must 

prepare a draft permit and must provide 

adequate public notice to ensure that 

the affected community and the general 

public have reasonable access to the 

application and draft permit 

information, as set out in paragraphs 

(b)(1)(i) and (ii) of this section. The 

public notice must provide an 

opportunity for public comment and 

notice of a public hearing, if any, on the 

draft permit. 

(i) The reviewing authority must mail 

a copy of the notice to you, the 

appropriate Indian governing body and 

the Tribal, state and local air pollution 

authorities having jurisdiction adjacent 

to the area of Indian country potentially 

impacted by the air pollution source. 

(ii) Depending on such factors as the 

nature and size of your source, local air 

quality considerations and the 

characteristics of the population in the 

affected area (e.g., subsistence hunting 

and fishing or other seasonal cultural 

practices), the reviewing authority must 

use appropriate means of notification, 

such as those listed in paragraphs 

(b)(1)(ii)(A) through (E) of this section. 

(A) The reviewing authority may mail 

or e-mail a copy of the notice to persons 

on a mailing list developed by the 

reviewing authority consisting of those 

persons who have requested to be 

placed on such a mailing list. 

(B) The reviewing authority may post 

the notice on its Web site. 

(C) The reviewing authority may 

publish the notice in a newspaper of 

general circulation in the area affected 

by the source. Where possible, the 

notice may also be published in a Tribal 

newspaper or newsletter. 

(D) The reviewing authority may 

provide copies of the notice for posting 

at one or more locations in the area 

affected by the source, such as Post 

Offices, trading posts, libraries, Tribal 

environmental offices, community 

centers or other gathering places in the 

community. 

(E) The reviewing authority may 

employ other means of notification as 

appropriate. 

(2) The notice required pursuant to 

paragraph (b)(1) of this section must 

include the following information at a 

minimum: 

(i) Identifying information, including 

your name and address (and plant name 

and address if different) and the name 

and telephone number of the plant 

manager/contact. 

(ii) The name and address of the 

reviewing authority processing the 

permit action; 

(iii) The regulated NSR pollutants to 

be emitted, the affected emissions units 

and the emission limitations for each 

affected emissions unit; 

(iv) The emissions change involved in 

the permit action; 

(v) Instructions for requesting a public 

hearing; 

(vi) The name, address and telephone 

number of a contact person in the 

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reviewing authority’s office from whom 

additional information may be obtained; 

(vii) Locations and times of 

availability of the information (listed in 

paragraph (a) of this section) for public 

inspection and 

(viii) A statement that any person may 

submit written comments, a written 

request for a public hearing or both, on 

the draft permit action. The reviewing 

authority must provide a period of at 

least 30 days from the date of the public 

notice for comments and for requests for 

a public hearing. 

(c) How will the public comment and 

will there be a public hearing? 

(1) Any person may submit written 

comments on the draft permit and may 

request a public hearing. These 

comments must raise any reasonably 

ascertainable issue with supporting 

arguments by the close of the public 

comment period (including any public 

hearing). The reviewing authority must 

consider all comments in making the 

final decision. The reviewing authority 

must keep a record of the commenters 

and of the issues raised during the 

public participation process and such 

records must be available to the public. 

(2) The reviewing authority must 

extend the public comment period 

under paragraph (b) of this section to 

the close of any public hearing under 

this section. The hearing officer may 

also extend the comment period by so 

stating at the hearing. 

(3) A request for a public hearing 

must be in writing and must state the 

nature of the issues proposed to be 

raised at the hearing. 

(4) The reviewing authority must hold 

a hearing whenever there is, on the basis 

of requests, a significant degree of 

public interest in a draft permit. The 

reviewing authority may also hold a 

public hearing at its discretion, 

whenever, for instance, such a hearing 

might clarify one or more issues 

involved in the permit decision. The 

reviewing authority must provide notice 

of any public hearing at least 30 days 

prior to the date of the hearing. Public 

notice of the hearing may be concurrent 

with that of the draft permit and the two 

notices may be combined. Reasonable 

limits may be set upon the time allowed 

for oral statements at the hearing. 

(5) The reviewing authority must 

make a tape recording or written 

transcript of any hearing available to the 

public. 

§ 49.172 Final permit issuance and 

administrative and judicial review. 

(a) How will final action occur and 

when will my permit become effective? 

After making a decision on a permit, the 

reviewing authority must notify you of 

the decision, in writing and if the 

permit is denied, provide the reasons for 

such denial and the procedures for 

appeal. If the reviewing authority issues 

a final permit to you, it must make a 

copy of the permit available at any 

location where the draft permit was 

made available. In addition, the 

reviewing authority must provide 

adequate public notice of the final 

permit decision to ensure that the 

affected community, general public and 

any individuals who commented on the 

draft permit have reasonable access to 

the decision and supporting materials. 

A final permit becomes effective 30 days 

after service of notice of the final permit 

decision, unless: 

(1) A later effective date is specified 

in the permit or 

(2) Review of the final permit is 

requested under paragraph (d) of this 

section (in which case the specific terms 

and conditions of the permit that are the 

subject of the request for review must be 

stayed) or 

(3) The draft permit was subjected to 

a public comment period and no 

comments requested a change in the 

draft permit or a denial of the permit, in 

which case the reviewing authority may 

make the permit effective immediately 

upon issuance. 

(b) For how long will the reviewing 

authority retain my permit-related 

records? The records, including any 

required applications for each draft and 

final permit or application for permit 

revision, must be kept by the reviewing 

authority for not less than 5 years. 

(c) What is the administrative record 

for each final permit? 

(1) The reviewing authority must base 

final permit decisions on an 

administrative record consisting of: 

(i) All comments received during any 

public comment period, including any 

extension or reopening; 

(ii) The tape or transcript of any 

hearing(s) held; 

(iii) Any written material submitted at 

such a hearing; 

(iv) Any new materials placed in the 

record as a result of the reviewing 

authority’s evaluation of public 

comments; 

(v) Other documents in the supporting 

files for the permit that were relied 

upon in the decision-making; 

(vi) The final permit; 

(vii) The application and any 

supporting data furnished by you, the 

permit applicant; 

(viii) The draft permit or notice of 

intent to deny the application or to 

terminate the permit and 

(ix) Other documents in the 

supporting files for the draft permit that 

were relied upon in the decisionmaking. 

(2) The additional documents 

required under paragraph (c)(1) of this 

section should be added to the record as 

soon as possible after their receipt or 

publication by the reviewing authority. 

The record must be complete on the 

date the final permit is issued. 

(3) Material readily available or 

published materials that are generally 

available and that are included in the 

administrative record under the 

standards of paragraph (c)(1) of this 

section need not be physically included 

in the same file as the rest of the record 

as long as it is specifically referred to in 

that file. 

(d) Can permit decisions be appealed? 

Permit decisions may be appealed 

according to the following provisions: 

(1) The Administrator delegates 

authority to the Environmental Appeals 

Board (the Board) to issue final 

decisions in permit appeals filed under 

this program. An appeal directed to the 

Administrator, rather than to the Board, 

will not be considered. This delegation 

does not preclude the Board from 

referring an appeal or a motion under 

this program to the Administrator when 

the Board, in its discretion, deems it 

appropriate to do so. When an appeal or 

motion is referred to the Administrator 

by the Board, all parties shall be so 

notified and the provisions of this 

program referring to the Board shall be 

interpreted as referring to the 

Administrator. 

(2) Within 30 days after a final permit 

decision has been issued, any person 

who filed comments on the draft permit 

or participated in the public hearing 

may petition the Board to review any 

condition of the permit decision. Any 

person who failed to file comments or 

failed to participate in the public 

hearing on the draft permit may petition 

for administrative review only to the 

extent that the changes from the draft to 

the final permit or other new grounds 

were not reasonably ascertainable 

during the public comment period on 

the draft permit. The 30-day period 

within which a person may request 

review under this section begins with 

the service of notice of the final permit 

decision, unless a later date is specified 

in that notice. 

(3) The petition must include a 

statement of the reasons supporting the 

review, including a demonstration that 

any issues being raised were raised 

during the public comment period 

(including any public hearing) to the 

extent required by these regulations, 

unless the petitioner demonstrates that 

it was impracticable to raise such 

objections were not reasonably 

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ascertainable within such period or 

unless the grounds for such objection 

arose after such period and, when 

appropriate, a showing that the 

condition in question is based on: 

(i) A finding of fact or conclusion of 

law that is clearly erroneous or 

(ii) An exercise of discretion or an 

important policy consideration that the 

Board should, in its discretion, review. 

(4) The Board may also decide on its 

own initiative to review any condition 

of any permit issued under this 

program. 

(5) Within a reasonable time following 

the filing of the petition for review, the 

Board will issue an order either granting 

or denying the petition for review. To 

the extent review is denied, the 

conditions of the final permit decision 

become final agency action. If the Board 

grants review in response to requests 

under paragraph (d)(2)–(3) or (4) of this 

section, public notice must be given as 

provided in § 49.171(b). Public notice 

must set forth a briefing schedule for the 

appeal and must state that any 

interested person may file an amicus 

brief. If the Board denies review, you, 

the permit applicant and the person(s) 

requesting review must be notified 

through means that are adequate to 

assure reasonable access to the decision, 

which may include mailing a notice to 

each party. 

(6) The reviewing authority, at any 

time prior to the rendering of the 

decision under paragraph (d)(5) of this 

section to grant or deny review of a 

permit decision, may, upon notification 

to the Board and any interested parties, 

withdraw the permit and prepare a new 

draft permit addressing the portions so 

withdrawn. The new draft permit shall 

proceed through the same process of 

public comment and opportunity for a 

public hearing as would apply to any 

other draft permit subject to this part. 

(7) A petition to the Board under 

paragraph (d)(2) of this section is, under 

section 307(b) of the Act, a prerequisite 

to seeking judicial review of the final 

agency action. 

(8) For purposes of judicial review, 

final agency action occurs when a final 

permit is issued or denied by the 

reviewing authority and agency review 

procedures are exhausted. A final 

permit decision will be issued by the 

reviewing authority: 

(i) When the Board issues notice to 

the parties that review has been denied; 

(ii) When the Board issues a decision 

on the merits of the appeal and the 

decision does not include a remand of 

the proceedings or 

(iii) Upon the completion of remand 

proceedings if the proceedings are 

remanded, unless the Board’s remand 

order specifically provides that appeal 

of the remand decision will be required 

to exhaust administrative remedies. 

(9) The reviewing authority shall 

promptly publish in the Federal 

Register notice of any final agency 

action on a permit. 

(10) Motions to reconsider a final 

order must be filed within 10 days after 

service of the final order. Every such 

motion must set forth the matters 

claimed to have been erroneously 

decided and the nature of the alleged 

errors. Motions for reconsideration 

under this provision must be directed to 

and decided by, the Board. Motions for 

reconsideration directed to the 

Administrator, rather than to the Board, 

will not be considered, except in cases 

the Board has referred to the 

Administrator pursuant to § 49.172(d)(1) 

and in which the Administrator has 

issued the final order. A motion for 

reconsideration will not stay the 

effective date of the final order unless 

specifically so ordered by the Board. 

(11) For purposes of this section, time 

periods are computed as follows: 

(i) Any time period scheduled to 

begin on the occurrence of an act or 

event must begin on the day after the act 

or event. 

(ii) Any time period scheduled to 

begin before the occurrence of an act or 

event must be computed so that the 

period ends on the day before the act or 

event, except as otherwise provided. 

(iii) If the final day of any time period 

falls on a weekend or legal holiday, the 

time period must be extended to the 

next working day. 

(iv) Whenever a party or interested 

person has the right or is required to act 

within a prescribed period after the 

service of notice or other paper upon 

him or her by mail, 3 days must be 

added to the prescribed time. 

(e) Can my permit be reopened? The 

reviewing authority may reopen an 

existing, currently-in-effect permit for 

cause on its own initiative, such as if it 

contains a material mistake or fails to 

assure compliance with applicable 

requirements. However, except for those 

permit reopenings that do not increase 

the emissions limitations in the permit, 

such as permit reopenings that correct 

typographical, calculation and other 

errors, all other permit reopenings shall 

be carried out after the opportunity of 

public notice and comment and in 

accordance with one or more of the 

public participation requirements under 

§ 49.171(b)(1)(ii). 

§ 49.173 Administration and delegation of 

the nonattainment major NSR program in 

Indian country. 

(a) Who administers a nonattainment 

major NSR program in Indian country? 

(1) If the Administrator has approved 

a TIP that includes a major NSR 

program for sources in nonattainment 

areas of Indian country that meets the 

requirements of part D of title I of the 

Act and § 51.165 of this chapter, the 

Tribe is the reviewing authority and will 

administer the approved major NSR 

program under Tribal law. 

(2) If the Administrator has not 

approved an implementation plan, the 

Administrator may delegate the 

authority to assist EPA with 

administration of portions of this 

Federal nonattainment major NSR 

program implemented under Federal 

authority to a Tribal agency upon 

request, in accordance with the 

provisions of paragraph (b) of this 

section. If the Tribal agency has been 

granted such delegation, it will have the 

authority to assist EPA according to 

paragraph (b) of this section and it will 

be the reviewing authority for purposes 

of the provisions for which it has been 

granted delegation. 

(3) If the Administrator has not 

approved an implementation plan or 

granted delegation to a Tribal agency, 

the Administrator is the reviewing 

authority and will directly administer 

all aspects of this Federal nonattainment 

major NSR program in Indian country 

under Federal authority. 

(b) Delegation of administration of the 

Federal nonattainment major NSR 

program to Tribes. This paragraph (b) 

establishes the process by which the 

Administrator may delegate authority to 

a Tribal agency, with or without 

signature authority, to assist EPA with 

administration of portions of this 

Federal nonattainment major NSR 

program, in accordance with the 

provisions in paragraphs (b)(1) through 

(8) of this section. Any Federal 

requirements under this program that 

are administered by the delegate Tribal 

agency will be subject to enforcement by 

EPA under Federal law. This section 

provides for administrative delegation 

of the Federal nonattainment major NSR 

program and does not affect the 

eligibility criteria under § 49.6 for 

treatment in the same manner as a state. 

(1) Information to be included in the 

Administrative Delegation Request. In 

order to be delegated authority to assist 

EPA with administration of this FIP 

permit program for sources, the Tribal 

agency must submit a request to the 

Administrator that: 

(i) Identifies the specific provisions 

for which delegation is requested; 

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1Hereafter the term source will be used to denote 

both any source and any modification. 

(ii) Identifies the Indian Reservation 

or other areas of Indian country for 

which delegation is requested; 

(iii) Includes a statement by the 

applicant’s legal counsel (or equivalent 

official) that includes the following 

information: 

(A) A statement that the applicant is 

a Tribe recognized by the Secretary of 

the Interior; 

(B) A descriptive statement that is 

consistent with the type of information 

described in § 49.7(a)(2) demonstrating 

that the applicant is currently carrying 

out substantial governmental duties and 

powers over a defined area and 

(C) A description of the laws of the 

Tribe that provide adequate authority to 

administer the Federal rules and 

provisions for which delegation is 

requested and 

(iv) A demonstration that the Tribal 

agency has the technical capability and 

adequate resources to administer the FIP 

provisions for which the delegation is 

requested. 

(2) Delegation of Partial 

Administrative Authority Agreement. A 

Delegation of Partial Administrative 

Authority Agreement (Agreement) will 

set forth the terms and conditions of the 

delegation, will specify the provisions 

that the delegate Tribal agency will be 

authorized to implement on behalf of 

EPA and will be entered into by the 

Administrator and the delegate Tribal 

agency. The Agreement will become 

effective upon the date that both the 

Administrator and the delegate Tribal 

agency have signed the Agreement or as 

otherwise stated in the Agreement. Once 

the delegation becomes effective, the 

delegate Tribal agency will be 

responsible, to the extent specified in 

the Agreement, for assisting EPA with 

administration of the provisions of the 

Federal nonattainment major NSR 

program that are subject to the 

Agreement. 

(3) Publication of notice of the 

Agreement. The Administrator will 

publish a notice in the Federal Register 

informing the public of any Agreement 

for a particular area of Indian country. 

The Administrator also will publish the 

notice in a newspaper of general 

circulation in the area affected by the 

delegation. In addition, the 

Administrator will mail a copy of the 

notice to persons on a mailing list 

developed by the Administrator 

consisting of those persons who have 

requested to be placed on such a 

mailing list. 

(4) Revision or revocation of an 

Agreement. An Agreement may be 

modified, amended or revoked, in part 

or in whole, by the Administrator after 

consultation with the delegate Tribal 

agency. 

(5) Transmission of information to the 

Administrator. When administration of 

a portion of the Federal nonattainment 

major NSR program in Indian country 

that includes receipt of permit 

application materials and preparation of 

draft permits has been delegated in 

accordance with the provisions of this 

section, the delegate Tribal agency must 

provide to the Administrator a copy of 

each permit application (including any 

application for permit revision) and 

each draft permit. You, the permit 

applicant, may be required by the 

delegate Tribal agency to provide a copy 

of the permit application directly to the 

Administrator. With the Administrator’s 

consent, the delegate Tribal agency may 

submit to the Administrator a permit 

application summary form and any 

relevant portion of the permit 

application, in place of the complete 

permit application. To the extent 

practicable, the preceding information 

should be provided in electronic format 

by the delegate Tribal agency or by you, 

the permit applicant, as applicable and 

as requested by the Administrator. The 

delegate Tribal agency must also submit 

to the Administrator such information 

as the Administrator may reasonably 

require to ascertain whether the delegate 

Tribal agency is implementing and 

administering the delegated program in 

compliance with the requirements of the 

Act and of this program. 

(6) Waiver of information 

transmission requirements. The 

Administrator may waive the 

requirements of paragraph (b)(5) of this 

section for any category of sources 

(including any class, type or size within 

such category) by transmitting the 

waiver in writing to the delegate Tribal 

agency. 

(7) Retention of records. Where a 

delegate Tribal agency prepares draft or 

final permits or receives applications for 

permit revisions on behalf of EPA, the 

records for each draft and final permit 

or application for permit revision must 

be kept by the delegate Tribal agency for 

a period not less than 5 years. 

(8) Delegation of signature authority. 

To receive delegation of signature 

authority, the legal statement submitted 

by the Tribal agency pursuant to 

paragraph (b)(1) of this section must 

certify that no applicable provision of 

Tribal law requires that a major NSR 

permit be issued after a certain time if 

the delegate Tribal agency has failed to 

take action on the application (or 

includes any other similar provision 

providing for default issuance of a 

permit). 

(c) Are there any non-delegable 

elements of the Federal nonattainment 

major NSR program in Indian country? 

The following authorities cannot be 

delegated outside of EPA: 

(1) The Administrator’s authority to 

object to the issuance of a major NSR 

permit. 

(2) The Administrator’s authority to 

enforce permits issued pursuant to this 

program. 

(d) How will EPA transition its 

authority to an approved nonattainment 

major NSR program? 

(1) The Administrator will suspend 

the issuance of nonattainment major 

NSR permits under this program 

promptly upon publication of notice of 

approval of a TIP with a major NSR 

permit program for nonattainment areas. 

(2) The Administrator may retain 

jurisdiction over the permits for which 

the administrative or judicial review 

process is not complete and will address 

this issue in the notice of program 

approval. 

(3) After approval of a program for 

issuing nonattainment major NSR 

permits and the suspension of issuance 

of nonattainment major NSR permits by 

the Administrator, the Administrator 

will continue to administer 

nonattainment major NSR permits until 

permits are issued under the approved 

Tribal implementation plan program. 

(4) Permits previously issued under 

this program will remain in effect and 

be enforceable as a practical matter until 

and unless the Tribe issues new permits 

to these sources based on the provisions 

of the EPA-approved Tribal 

implementation plan. 

PART 51—[AMENDED] 

■ 4. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

■ 5. Appendix S to part 51 is amended 

by revising paragraph II.B and adding 

condition 5 to paragraph IV.A to read as 

follows: 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

* * * * * 

II. * * * 

B. Review of all sources for emission 

limitation compliance. The reviewing 

authority must examine each proposed major 

new source and proposed major 

modification 1 to determine if such a source 

will meet all applicable emission 

requirements in the SIP, any applicable new 

source performance standard in part 60 or 

any national emission standard for hazardous 

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38808 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Rules and Regulations 

air pollutants in part 61 or part 63 of this 

chapter. If the reviewing authority 

determines that the proposed major new 

source cannot meet the applicable emission 

requirements, the permit to construct must be 

denied. 

IV. * * * 

A. * * * 

Condition 5. The permit applicant shall 

conduct an analysis of alternative sites, sizes, 

production processes and environmental 

control techniques for such proposed source 

that demonstrates that the benefits of the 

proposed source significantly outweigh the 

environmental and social costs imposed as a 

result of its location, construction or 

modification. 

* * * * * 

[FR Doc. 2011–14981 Filed 6–30–11; 8:45 am] 

BILLING CODE 6560–50–P 

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