Summary of Interagency Working Comments on Draft Language under EO12866 Interagency Review. Subject to Further Policy Review.

General :

1. Does EPA have the legal flexibility to not require sources to count fugitive emissions in applicability determinations ? Given the small emissions from these sources, many of which are small businesses, it seems very burdensome to include fugit ive emissions , and with little environmental / air quality benefit

.

2. How could EPA further reduce the recordkeeping and reporting burden of this rule? Are respondents required to keep any record longer than 3 years? Electronic reporting and records are p ermitted?

3. Routine maintenance, repair and replacement: EPA should consider this preamble as an opportunity to clarify that, consistent with historic policy and interpretation, the routine maintenance, repair and replacement exception is to be construed n arrowly and that EPA focuses what is routine at an individual unit, not what is common in the industry.

4. GADS data : EPA should consider stating in the preamble that when performing emissions calculations for electric utilities, the use of GADS type data is specifically approved.

5. Operating Permits : In the section on permits, EPA should consider adding a statement in the preamble that all preconstruction permits are also operating permits.

6. Allowable

- to

- allowable approach for minor sources: EPA says that actual data is often not available for minor sources, and it is true that even in the major NSR program, EPA permits the use of allowable data if actual data are unavailable. However, this rule allows an

allowable

- to

- allowable test up front, and says it w ill do a look

- back to see if there is actual

data. EPA should consider an approach whereby the source must first look for and utilize actual data, and if it is not available, then the source may use an allowable

- to

- allowable test (note that such a test ra rely results in an emissions increase)

7. Is minor NSR permitting required?: This rule will establish a minor source permitting program. Coordination is necessary given pending litigation regarding disapproval of the Texas Qualified Facilities program and r ecent revisions submitted by Texas to Region 6. It is

unclear whether EPA believes that Tribal Minor NSR Rule is an exercise of EPA discretion or that Section 110(a)(2)(C) requires SIPs to contain a minor source “permit program.” See

also 40 C.F.R. § 51. 160(b) (regarding “applications for approval to construct or modify”); preamble statement at page 134 (“subjecting all minor sources to the minor NSR program is not necessary to achieve the NAAQS as demonstrated by the existing state minor NSR

programs . . .”).

Preamble and Regulation Text

- Specific :

8. Indian country jurisdiction and definition (footnote 9, pp. 169, 175) : Reconsider citing

the 2000 HRI v. EPA opinion and relying on 18 U.S.C. § 1151 to define Indian country inSummary of Interagency Working Comments on Draft Language under EO12866 Interagency Review. Subject to Further Policy Review.

light of the en banc Tenth Ci rcuit’s ruling in the follow

- up HRI litigation, 608 F.3d 1131. Also, it may be useful to add a citation to Arizona Pub. Serv . at page 175 as follows:

For air resources within the exterior boundaries of a tribe’s reservation, the tribe may rely

on the Con gressional 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 non

- reservation areas o f Indian country. See, e.g., Arizona Public Service Co. v. EPA , 211 F.3d 1280, 1288 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1600 (2001).

9. Checkerboarding (pp. 25

- 26): Because there will be checkerboarding in non

- reservation portions of Indian country, consider revising the sentence at 25

- 26 (and the similar statement at 170) “avoid the checker

- boarding of Indian reservations based on land ownership . . . .” to

capture non

- reservation areas. Checkerboarding is a valid rationale for formal reservations, but not necessarily for informal reservations, dependent Indian communities, or allotments. There will be checkerboarded implementation of this program in checkerboarded areas outside of reservations, such as the checkerboarded area of New Mexico.

10. Deadli nes for permit decisions (pp 85

- 86): Except perhaps for general permits and based on actual experience in EPA regions, EPA should reconsider establishing firm deadlines for final permit decisions. In addition to any practical considerations, language lik e that in 49.159(b)(7) (“permit will be granted or denied no later than 1 year . . . ”) could be deemed to create a mandatory duty.

11. Administrative and judicial review (begin p. 102): This discussion can be read to mean that all final NSR permitting decis ions, whether made by EPA, a delegated Tribe, or a Tribe with an approved NSR TIP will go through the EAB and then be appealed to the appropriate federal court of appeals. Consider clarifying that review of tribally

- issued NSR permits

under a TIP are sub ject to administrative and judicial under the applicable tribal system.

12. Once

- in

- always

- in (pp. 124, 235 and elsewhere): Consider further explanation to clarify how allowing existing major HAP sources to obtain a synthetic minor source permit under

this r ule is consistent with the “once

- in

- always

- in” policy for HAPs. This issue needs to be

well

- coordinated with respect to potential impacts of this rule on enforcement and defensive litigation where EPA applies the once

- in

- always

- in policy.

13. Disputed areas/ Oklahoma comment (pp. 170

- 71): Consider a provision that EPA will also assert jurisdiction in disputed areas, if any, until such time as the dispute is resolved. For instance, Oklahoma’s apparent comment suggests that it asserts authority from Congress to implement the NSR program over tribal areas in Oklahoma. As Oklahoma may challenge the FIP on that basis, the response to this comment could be stronger. Will the FIP apply within Indian country in Oklahoma until such time as the State or a Tribe mak es such a request?

14. Strike examples of “other,” colorable means of achieving synthetic minor status (p. 126

- 7) : Section 49.158(c)(3) should be revised by striking the denoted text as follows: “If yourSummary of Interagency Working Comments on Draft Language under EO12866 Interagency Review. Subject to Further Policy Review.

existing synthetic minor source and/or synthetic mi nor HAP source was established through a mechanism other than those described in paragraphs (c)(a) and (c)(2) of this section, including state

- issued permits or achieving your existing synthetic minor source status by maintaining your actual emissions at l ess than 50% of the existing major source threshold

, you must submit an application for a synthetic minor source permit under this program by. .

.” The deleted clause is unnecessary to require any person that believes he may have obtained any form of colo rable synthetic minor status at an existing facility to apply for a minor source permit under the new rule within one year of the effective date of the new rule. Striking the clause would neutralize the language and avoid suggesting an EPA position on

whe ther such “other” mechanisms created either legally or practically enforceable limits (i.e., bona fide synthetic minor source status). Including the clause, however, might be interpreted to suggest an EPA view that: (i) state

- issued permits for sources lo cated in Indian country could create legally and practicably enforceable limits even though a state lacked jurisdiction to issue the permit; or (2) that a source could, on a purely voluntarily basis and without having obtained legally or practically enforc eable limits, convert its major source status to synthetic minor source status by complying with, or even not complying with, EPA’s Transition Policy (having provided EPA a written, advance statement of intention to take advantage of the Transition Policy and keeping credible, contemporaneous records that potential emissions above major source levels were in fact kept below 50% of such major source levels).

15. Notice to state

- issued permit holders? (p. 184): Does EPA intend to give each such source

individu al notice that it must convert the permit to a federal permit under the FIP or be in

violation?

16. Fees (p. 187): This may require more explanation, as it is not clear how a delegated Tribe can charge a fee if EPA lacks the authority to charge such a fee (as the Tribe is essentially assisting EPA in implementing the federal program).

17. Permit status once there is a TIP (page 222) What happens to existing permits when the federal program ceases to apply based upon a subsequently approved TIP?

18. Safety req uirements (p. 253) Consider specifying that the permitee’s safety requirements must be “reasonable” ones and perhaps provide examples (e.g., hats and others that apply to the source’s own employees, but not including extensive safety training requirements)

.