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 fugitive 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 permitted?

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 narrowly 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 will 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 rarely 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 recent 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 in 
Summary of Interagency Working Comments on Draft Language under EO12866 Interagency Review. 

Subject to Further Policy Review.

light of the en banc Tenth Circuit’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 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 non-reservation areas of 

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. Deadlines 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 like 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 decisions, 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 subject 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 rule 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 makes 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 your 
Summary of Interagency Working Comments on Draft Language under EO12866 Interagency Review. 

Subject to Further Policy Review.

existing synthetic minor source and/or synthetic minor 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 less 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 colorable 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 

whether 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 located 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 enforceable 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 

individual 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 requirements (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).