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6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 49 and 51

[EPA-HQ-OAR-2003-0076; FRL- ]

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 [INSERT DATE 60 DAYS AFTER 

DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 
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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 www.regulations.gov website. 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 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 Montañez, 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, email address: montanez.jessica@epa.gov.

SUPPLEMENTARY INFORMATION:

The information in this preamble is organized as follows:
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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
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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?
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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

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Population

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
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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
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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.
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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 
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sources1 and for approving case-by-case maximum achievable control 

technology (MACT) determinations.2 Prior to this action, there has 

been no 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 

 

1 Sources located within the exterior boundaries of Indian 

reservations in Idaho, Oregon and Washington can apply for a nontitle 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. 

2 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. See Section IV.E. of this preamble for more 

information on case-by-case MACT determinations.
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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-to-projected-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 

 

3 As 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 site-specific permit development for such facilities.
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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 

 

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. 
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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 
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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 website. 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 
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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 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 
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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, [INSERT DATE 

38 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

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 [INSERT DATE 20 MONTHS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] 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 offset5 waivers due to 

certain comments raising concerns with implementation of this waiver. 

 

5 Under 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.
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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 health-based 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 

 

6 Also 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 federally-enforceable compliance schedule for) all 

applicable emission limitations and standards under the Act. See

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

 

7 Sources 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). 
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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 emissions8 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 

 

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).
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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
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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.

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 
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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 
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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 
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they can show jurisdiction.9 See 63 FR 7254-7259; 59 FR 43958-43960; 

Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. 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

 

9 We 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.
Page 24 of 334

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 
Page 25 of 334

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 

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 checker-boarding of Indian reservations based on land 
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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 nonreservation areas of Indian country in order to fill any gap in 

program coverage and to ensure an efficient and effective transition 

to EPA-approved 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 
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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. 
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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 

programs10. 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 

 

10 For example, the St. Regis Mohawk Tribe has in place an EPAapproved 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). 

11 Although 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. 
Page 29 of 334

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 
Page 30 of 334

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 

email, meetings with the EPA Regional Offices, newsletters and

websites. 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 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 
Page 31 of 334

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 

 

12 This organization has since changed its name to the National 

Association of Clean Air Agencies (NACAA).
Page 32 of 334

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 email or phone calls 

and asked to keep them informed of our progress through email, 

meetings, training sessions, newsletters and/or websites. 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 Luiseño 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.
Page 33 of 334

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
Page 34 of 334

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 caseby-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 
Page 35 of 334

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, 
Page 36 of 334

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

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 
Page 37 of 334

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 
Page 38 of 334

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 
Page 39 of 334

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 

 

13 The significance levels are defined in 40 CFR 52.21(b)(23).
Page 40 of 334

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 
Page 41 of 334

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 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 
Page 42 of 334

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.
Page 43 of 334

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 
Page 44 of 334

maintenance, repair or replacement14.

• 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 

 

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 (D.C. Cir. 2006), cert. denied 127 S. Ct.2127 

(2007) (citing Alabama Pow. Co, v. Costle, 636 F.2d 323 (D.C. Cir 

1980)). EPA’s historic policy is that “in determining whether 

proposed work at an existing facility is ‘routine,’ EPA makes a caseby-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). 
Page 45 of 334

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 allowable-to-allowable test 

will not capture those sources that escape major NSR review and 

suggested the use of an actual-emissions-based test which could 

include an actual-to-potential, actual-to-projected-actual or an 

actual-to-future-actual test. 

For the most part, we agree with those commenters that endorsed 
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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-to-projected-actual

and allowable-to-allowable) and determined that the allowable-toallowable 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 allowable-to-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 allowable-to-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 
Page 47 of 334

“modification” for purposes of the new source performance standards 

(NSPS)) in defining “modification” for purposes of the major NSR 

program. The D.C. Circuit Court of Appeals has ruled that, based on 

the wording of the definition of “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 (D.C. 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 D.C. 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 actualemissions-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 
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registration program15 we are finalizing with this rule to assess the 

feasibility of implementing an actual-emissions-based 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-to-projected-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-projected-actual 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 –

 

15 We 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. 
Page 49 of 334

that actual emissions data are not available for minor sources and an 

actual-emissions-based 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 
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modification using the procedures in the applicable major NSR program

(i.e., the actual-to–projected-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 actualto-projected-actual 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 
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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 replacement16

minus the potential to emit prior to the change or 

 

16 The 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).
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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 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 

 

17 It is necessary to use potential to emit since these emissions 

units will not have an allowable emissions limit prior to the change. 
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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 

 

18 As 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.
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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 Thresholdsa

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) ............ 5b 10

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

Volatile Organic Compounds (VOC) . 2b 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 
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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
Page 56 of 334

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 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 
Page 57 of 334

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 appropriate19.

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 

 

19 We 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).
Page 58 of 334

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 airconditioning 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. 
Page 59 of 334

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?
Page 60 of 334

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 
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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 section 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 postconstruction 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 
Page 62 of 334

PAL20. 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 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 level 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 

 

20 A 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. 
Page 63 of 334

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 site-specific 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
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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 costeffective 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 
Page 65 of 334

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 caseby-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 
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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 case-by-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 
Page 67 of 334

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, timeconsuming 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).

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 
Page 68 of 334

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 
Page 69 of 334

well as the control technologies in use in the surrounding states. 

Therefore, we are finalizing the case-by-case control technology 

review requirements as proposed. The final rules require your 

reviewing authority to perform a control technology review on a caseby-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 
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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 
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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:
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• The emissions limitations for each affected emissions unit 

determined by the reviewing authority based on the case-bycase 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. 
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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 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 
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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 
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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 
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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 
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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. 
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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 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 
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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 site-specific 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 
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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 site-specific 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 
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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 sitespecific 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 
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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 
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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. 

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 
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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.” 
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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 
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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 emailing 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 website.

• Publishing the notice in a newspaper of general circulation 

in the area affected by the source. Where possible, the 
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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 
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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 email 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 site-specific 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 
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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. 

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 
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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 
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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 
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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 
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noticing under 40 CFR 49.157(b)(1)(ii) for site-specific 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 
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when your permit can be reopened. These provisions state that the 

reviewing authority may reopen a final, currently-in-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 

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 
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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 
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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

provisions21 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 

 

21 See 71 FR 48743 for more information on the proposed list of 

administrative permit revisions.
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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 
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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. 
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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

ripe for abuse and would encourage challenges from anti-development 
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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 
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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 
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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 
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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 
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streamline minor source permitting, we plan to propose permits-byrule 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 
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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 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 
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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
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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 
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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 site-specific 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 
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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 
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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 website. 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 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. 
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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 
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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 
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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 sitespecific 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 
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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 
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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 

 

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.
Page 116 of 334

sources would rush to Indian country to avoid MACT standards.

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. 
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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 
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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 
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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 

 

23 Please 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).
Page 120 of 334

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 sitespecific 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 
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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 [INSERT DATE 

60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

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 [INSERT DATE 60 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], you do 

not need to apply for a synthetic minor source permit under 

this program.

 

24 EPA’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. 
Page 122 of 334

• 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 [INSERT DATE 60 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]), 

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 [INSERT 60 DAYS 

AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. For 

these modifications, you must obtain a permit pursuant to 

40 CFR 49.158 prior to commencing construction. 

 

25 See previous footnote regarding the timing for obtaining 

potential to emit restrictions on sources seeking a synthetic minor 

HAP permit. 
Page 123 of 334

• 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 [INSERT DATE 1 YEAR AND 60 DAYS 

FROM PUBLICATION IN THE FEDERAL REGISTER]) 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 
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minor HAP source26 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 [INSERT DATE 1 YEAR AND 

60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

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.

 

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. 
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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 caseby-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 EPA-approved title V permitting 

program or have adopted any other program to implement section 

 

27 See 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-by-case MACT determinations. 
Page 126 of 334

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-bycase MACT determination through a part 71 permit issued preconstruction 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-by-case MACT requirements. Note that 

even with this approach to preconstruction review, the source is 
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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 caseby-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 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-bycase 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 
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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-by-case 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-bycase 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 
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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 
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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 
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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 
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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 [INSERT DATE 20 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER]. 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 [INSERT 38 MONTHS AFTER PUBLICATION IN THE FEDERAL 

REGISTER], 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 [INSERT 38 MONTHS AFTER PUBLICATION IN THE FEDERAL 

REGISTER] 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 
Page 133 of 334

emissions as provided in 40 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 EPA-approved 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 
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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 
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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 
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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 

 

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.
Page 137 of 334

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.
Page 138 of 334

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, such as the 

provision of NSR offset set-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 

 

29 Tribal 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). 
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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).”
Page 140 of 334

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 
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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. 
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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 
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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 
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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 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 
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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 
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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 
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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 
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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 
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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 viceversa if and when tribes develop 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 
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Particulate Matter Less Than 2.5 Micrometers (PM2.5)” (73 FR 28340),

we finalized provisions that allow for inter-pollutant and interprecursor 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 
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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 caseby-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 
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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 
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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 SIP-approved 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 
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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 countrywide 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 requirements for the 
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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 
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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. 
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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 
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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 section 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 
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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 
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absence of an EPA-approved 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 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 EPAapproved 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 

 

30 Under the Act and the TAR (see 40 CFR part 49, subpart A), 

eligible tribes may seek approval of their own PSD programs for their 

reservations and/or for other areas under their jurisdiction.

31 For example, the St. Regis Mohawk Tribe has in place an EPAapproved 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).
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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 
Page 162 of 334

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 country32” 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 

 

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.
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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 

 

33 For 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. 
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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 (D.C. 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 
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CFR part 71, was affirmed in State of Michigan v. EPA, 268 F.3d 1075 

(D.C. 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 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 
Page 166 of 334

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 
Page 167 of 334

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 

checker-boarded 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 
Page 168 of 334

is clear and well-established 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 EPA-approved 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-thesame-manner-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 
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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 

 

34 As 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.
Page 170 of 334

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 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 

 

35 The 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.
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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 

 

36 This 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.
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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 

non-reservation areas of Indian country. Arizona Public Service Co. 

v. EPA, 211 F. 3d 1280 (D.C. Cir. 2000), cert. den., 532 U.S. 970 

(2001).

 

37 See 63 FR 7254-59.
Page 173 of 334

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 nonreservation 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 
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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 
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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 delegation demonstrations will 

 

38 The 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.
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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 
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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. 

 

39 Section 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.
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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 wellestablished federal authority to implement CAA programs in Indian 

country in the absence of an EPA-approved 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 
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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 Congressionally-delegated authority 

over air resources within the exterior boundaries of their 

reservations or authority over non-reservations areas of Indian 

country. Instead, such tribes would only need to show that their laws 
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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.
Page 181 of 334

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 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 government-to-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 
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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 
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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. 
Page 184 of 334

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 
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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 
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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 

non-federal 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 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 

 

40 Most 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. 
Page 187 of 334

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.
Page 188 of 334

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 the 

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 
Page 189 of 334

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, [INSERT 38 MONTHS AFTER PUBLICATION IN THE 

FEDERAL REGISTER]. 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 
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[INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER]), 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 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 [INSERT DATE 60 DAYS AFTER 

DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 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 [INSERT DATE 60 DAYS AFTER 

DATE OF PUBLICATION IN THE FEDERAL REGISTER], 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 
Page 191 of 334

minor source and/or a new synthetic minor HAP source41 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 [INSERT DATE 60 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]), 

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 

 

41 EPA’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. 
Page 192 of 334

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 [INSERT 

60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

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 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 [INSERT DATE 1 YEAR AND 60 DAYS FROM PUBLICATION IN THE 

FEDERAL REGISTER] 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 
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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 [INSERT DATE 

1 YEAR AND 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. 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 
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program, that is, by [INSERT DATE 20 MONTHS AFTER 

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. If 

your true minor source commences construction in the time 

period after the effective date of this rule and [INSERT 38 

MONTHS AFTER PUBLICATION IN THE FEDERAL REGISTER], 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, [INSERT DATE 

38 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. The proposed new source or modification will be

subject to the registration requirements of 40 CFR 49.160, 
Page 195 of 334

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-
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specific permit at the time the source had to request coverage under

that general permit), the EPA estimates lower bound42 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 bound42

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 sitespecific 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 

 

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. 
Page 197 of 334

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 nondelegated 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 
Page 198 of 334

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 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 
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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 
Page 200 of 334

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 not-for-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
Page 201 of 334

• 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 
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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 analysis43, 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 

 

43 We 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.
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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).
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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

Total 1,730

a Based on Year 2008 dollars.
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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
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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 a For 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.
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To conduct our screening analysis of impacts44 on small 

businesses, we compared the estimated costs of 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 

 

44 This 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. 
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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 rules effective date or 90 
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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, [INSERT 38 MONTHS FROM RULE PUBLICATION IN THE FEDERAL 

REGISTER] 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 
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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 
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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/ALAPCO45 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 

 

45 This organization has since changed its name to the 

National Association of Clean Air Agencies (NACAA).
Page 212 of 334

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 or 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 EPA-approved 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 
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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 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 
Page 214 of 334

Advancement Act of 1995 (“NTTAA”), Public Law No. 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 
Page 215 of 334

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, 
Page 216 of 334

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 [INSERT DATE 60 

DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER].

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 [INSERT DATE 

60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 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
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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 proposed 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). 
Page 218 of 334

Page 218 of 343 - Review of New Sources and Modifications in 

Indian Country

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:

____________________________

Lisa P. Jackson,

Administrator. 
Page 219 of 334

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. Subpart C of Part 49 is amended by adding an 

undesignated center heading and §§49.151 through 49.161 and

adding and reserving §§49.162 through 49.165 to read as follows:

Federal Minor New Source Review 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.

(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 
Page 220 of 334

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:
Page 221 of 334

(i) Existing major sources.

(A) If you wish to commence construction of a minor 

modification at an existing major source on or after [INSERT 

DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 

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 [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE

FEDERAL REGISTER]. 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 [INSERT DATE 60 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 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 
Page 222 of 334

or a modification at an existing synthetic minor source and/or 

synthetic minor HAP source on or after [INSERT DATE 60 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 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 [INSERT 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 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 
Page 223 of 334

source permit under this program by [INSERT DATE 1 YEAR AND 60 

DAYS FROM PUBLICATION IN THE FEDERAL REGISTER] 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 [INSERT DATE 1 YEAR AND 60 DAYS AFTER DATE OF PUBLICATION IN 

THE FEDERAL REGISTER]. The reviewing authority has the 

discretion to require any additional requirements, including 

control technology requirements, based on the specific 

circumstances of the source. 
Page 224 of 334

(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 [INSERT DATE 20 MONTHS AFTER PUBLICATION OF THE FINAL 

RULE IN THE FEDERAL REGISTER]. If your true minor source 

commences construction in the time period after the effective 

date of this rule and [INSERT 38 MONTHS AFTER PUBLICATION IN THE 

FEDERAL REGISTER], 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 
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this rule, that is, [INSERT DATE 38 MONTHS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 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 - “Rule for the registration of air pollution sources 

and the reporting of emissions.”

(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 
Page 226 of 334

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 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 
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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 
Page 228 of 334

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 
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(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 
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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 
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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 rightsof-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.

 

1 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.
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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.

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
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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 
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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 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. 

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.
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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 
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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.
Page 237 of 334

(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-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-to-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 
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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 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 [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. However, if your permit 

application for a synthetic minor source and/or synthetic minor 
Page 239 of 334

HAP source pursuant to the FIPs for reservations in Idaho,

Oregon and Washington has been determined complete prior 

to[INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER], 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 [INSERT DATE 60 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 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 [INSERT DATE 60 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER])

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 
Page 240 of 334

this rule, that is, on or after [INSERT 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 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 [INSERT DATE 60 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]) 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 [INSERT DATE 1 YEAR AND 60 DAYS AFTER DATE OF

PUBLICATION IN THE FEDERAL REGISTER] 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 (iii) and (iv) of this section, 

you must submit an application for a synthetic minor source 

permit under this program by [INSERT DATE 1 YEAR AND 60 DAYS 
Page 241 of 334

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] 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 
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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 postchange allowable emissions would less than its pre-change 

potential to emit, use zero in the calculation.

(c) What emissions units and activities are exempt from 

this program?
Page 243 of 334

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 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.

(7) Bench scale laboratory activities, except for 

laboratory fume hoods or vents.
Page 244 of 334

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) ............ 5b 10

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

Volatile Organic Compounds (VOC). 2b 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.
Page 245 of 334

§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) 
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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 
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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 
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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 
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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; 
Page 251 of 334

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 
Page 252 of 334

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 
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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 
Page 254 of 334

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.
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(ii) Retention for 5 years of records of all required 

monitoring data and 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 
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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 re-
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issuance 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 
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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 
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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-bycase 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 
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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. 
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(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 
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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. 
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(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.
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§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.
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(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.

(i) The reviewing authority must mail a copy of the notice 
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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 email 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 

website.

(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 
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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 
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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 
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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 
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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:
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(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.
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(H) Estimates of the allowable emissions and/or potential 

to emit that 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
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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 
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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 [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER])? 

(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 
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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 [INSERT 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 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 [INSERT DATE 1 YEAR 

AND 60 DAYS FROM PUBLICATION IN THE FEDERAL REGISTER], 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 
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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 [INSERT DATE 1 YEAR 

AND 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER],

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
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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.
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§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 

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 
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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 decision-making;

(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 
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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 decision-making.

(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 
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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 
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(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 
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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 
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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 

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 
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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 
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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 
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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, 
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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, [INSERT DATE 20 MONTHS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER].

(ii) If your true minor source commences construction in 

the time period between the effective date of the rule and 

[INSERT DATE 38 MONTHS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER], 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 [INSERT DATE 38 MONTHS AFTER DATE 

OF PUBLICATION IN THE FEDERAL REGISTER] 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 
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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 
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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 

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 
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the preceding calendar year, calculated using the actual 

operating hours, production rates, in-place 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 
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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 
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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 
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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 
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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.
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(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 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 
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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 
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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 
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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 
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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.

§§49.162-49.165 [Reserved]

3. Subpart C of Part 49 is amended by adding an 

undesignated center heading and §§49.166 through 49.173 and

adding and reserving §§49.174 and 49.175 to read as follows:

Federal Major New Source Review Program

for Nonattainment Areas 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 
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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 EPA-approved 

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 EPA-approved nonattainment major NSR program beginning on 

[INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 
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REGISTER]. The provisions of this program apply only to new

sources and modifications 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 
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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 EPA-approved 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, 
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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. 
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(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 rightsof-way running through the reservation;1

 

1 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.
Page 307 of 334

(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 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. 

Synthetic minor HAP source means a source that otherwise 
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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. 

§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 stateissued nonattainment major NSR permit, you must apply to convert 

such permit to a federal permit under this program by [INSERT 

DATE 1 YEAR AND 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 
Page 309 of 334

REGISTER]. 

(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 §§49.151 through 49.165 or other EPA-approved 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 
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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
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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 
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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 
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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 email a copy of 

the notice to persons on a mailing list developed by the 

reviewing authority consisting of those persons who have 
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requested to be placed on such a mailing list.

(B) The reviewing authority may post the notice on its 

website.

(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;
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(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 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 
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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 
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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 
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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 
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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 decision-making. 

(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 
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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 
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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 

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 
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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 
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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 
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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 
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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 
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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.
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(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 
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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 
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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 
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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 
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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 
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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.

§§49.174-49.175 [Reserved]

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.

Appendix S to Part 51-[Amended]

5. Appendix S to Part 51 is amended by revising paragraph 

II.B and adding condition 5 to paragraph IV.A to reads as 

follows:

Appendix S to Part 51-Emission Offset Interpretative Ruling.

* * * * *
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II. * * *

B. Review of all sources for emission limitation 

compliance. The reviewing authority must examine each proposed 

major new source and proposed major modification1 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 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

 

1 Hereafter the term source will be used to denote both any 

source and any modification.
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modification.

* * * * *